author: LEE, C.J., CARLTON, J.,

text:
    MISSISSIPPI SECURITY POLICE and Commerce and Industry Insurance Company, Appellants v. Susan PATTERSON, Appellee.
    No. 2009-WC-01511-COA.
    Court of Appeals of Mississippi.
    March 15, 2011.
    Rehearing Denied June 28, 2011.
    Jeffrey Stephen Moffett, Ridgeland, attorney for appellant.
    Jackye C. Bertucci, attorney for appel-lee.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Susan Patterson suffered a work-related injury on November 19, 2005, when she stepped out of a vehicle provided by her employer, Mississippi Security Police (MSP), and hurt her back. On March 31, 2006, Patterson filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission) claiming to have sustained a loss of wage-earning capacity due to her injury. MSP denied that Patterson had suffered a work-related injury.

¶ 2. After a hearing, the administrative judge (AJ) determined that Patterson had suffered a work-related injury and was entitled to all benefits and reasonable and necessary medical treatment. MSP appealed this decision to the Commission. After hearing arguments, the Commission affirmed the decision of the AJ. MSP then filed an appeal to the Jackson County Circuit Court. The trial court affirmed the decision of the Commission.

¶ 3. MSP now appeals, asserting that the Commission’s decision was not supported by substantial evidence. Finding no error, we affirm.

FACTS

¶4. On November 19, 2005, Patterson was attempting to step out of the truck provided by MSP when she felt something pull. Patterson was working in Pascagou-la, Mississippi, as a security guard. Patterson testified that she had trouble exiting the truck because the cab was high off the ground, and there was no side step. Patterson finished her shift and returned to work the next day. Patterson reported her injury to her supervisor, Brook Walters, the day after her injury. Patterson stated that Walters laughed at her; responded “oh, you didn’t hurt yourself’; and drove away. James Wilson, Patterson’s co-worker at the time, heard Patterson tell Walters she had hurt her back. Wilson heard Walters tell Patterson that he did not believe her and would not give her an incident report. Wilson also stated that he had trouble getting in and out of the company truck because of his height.

¶ 5. According to Patterson’s medical history, she had suffered from intermittent low-back problems several years in the past. Patterson testified that these problems stemmed from endometriosis and uterine cancer. Patterson also underwent gastric bypass surgery in January 2005.

¶ 6. Although her back got progressively worse, Patterson continued to work. Patterson first sought treatment from Dr. Paul Fineburg, a family medicine physician, on December 20, 2005. Dr. Fineburg ordered an MRI, but Patterson had to reschedule. Dr. Fineburg opined that Patterson had sciatic inflammation and placed her on anti-inflammatories, muscle relaxers, and pain medication. Dr. Fineburg saw Patterson again on January 3, 2006. Patterson’s pain had increased, and she was having difficulty rising from chairs.

¶ 7. Dr. Fineburg opined that Patterson “had some back problems initially, but apparently these were made acutely worse by some incident at work that resulted in the requirement for emergency back surgery.” Dr. Fineburg noted that at the time of his opinion that Patterson’s injury was work related; however, he had not reviewed records by Patterson’s neurosurgeon, Dr. John McCloskey.

¶ 8. On January 24, 2006, Patterson underwent emergency surgery for acute cauda equina syndrome. Dr. McCloskey performed the surgery. Dr. McCloskey testified that he did laminectomies at L3-4 and L4-5 on the right and removed an enormous disc herniation at L3^L Patterson saw Dr. McCloskey again on March 2, 2006. Dr. McCloskey stated that Patterson continued to have pain in her right buttock and persistent numbness in her right foot. Patterson also continued to have bilateral foot drops. At the time, Dr. McCloskey thought Patterson would be permanently disabled. Dr. McCloskey performed a second surgery on Patterson on March 30, 2006, to remove another large disc herniation at L3-4.

¶ 9. There are some inconsistencies in Patterson’s testimony as to when she informed both Dr. Fineburg and Dr. McCloskey about her injury. From the record, it appears Dr. Fineburg was not told the specifics of Patterson’s injury until March 2006. Dr. McCloskey testified that Patterson informed him of her work-related injury during her hospitalization after her first surgery on January 24, 2006. Dr. McCloskey opined that Patterson’s disc herniation was caused, aggravated, or accelerated by her injury at work.

¶ 10. Timothy Jesperson, the human-resources director for MSP, testified that he met with Patterson on February 3, 2006, regarding her termination. Jesper-son informed Patterson that she had missed more than three consecutive days and did not qualify for leave under the Family Medical Leave Act. There was a conversation between the two concerning whether MSP accommodated workers. Patterson reportedly stated at some point, “I never said it wasn’t a workers’ compensation claim.” Jesperson said he advised Patterson to fill out a workers’ compensation claim right then, but she declined. Jesperson received notice in March 2006 of a possible workers’ compensation claim. Patterson denied meeting with Jesperson. Patterson testified that this conversation occurred over the phone. Patterson further stated that Jesperson told her she could not file a workers’ compensation claim because it had been too long since her injury.

STANDARD OF REVIEW

¶ 11. The standard of review in workers’ compensation cases is well established. The decision of the Commission will be reversed only if it is not supported by substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law. Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778 (¶ 6) (Miss.2003) (citing Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992)). We will exercise de novo review on matters of law. KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss.1991).

DISCUSSION

¶ 12. In its only issue on appeal, MSP argues that the Commission’s decision was not supported by substantial evidence. Specifically, MSP contends that Patterson’s testimony was not credible because she failed to inform Dr. Fineburg during her first visit with him that she injured her back at work.

¶ 13. The AJ noted that Patterson’s testimony contained several inconsistencies. However, the AJ found that based upon the evidence presented, it was reasonable to find that Patterson did suffer a work-related injury on November 19, 2005. The AJ based her decision on the following: Wilson’s testimony that he heard Patterson report the injury to her supervisor; Dr. Fineburg’s opinion that Patterson’s initial back problems were made acutely worse by the work injury that resulted in the need for surgery; and Dr. McClos-key’s opinion that the disc herniation that necessitated Patterson’s surgeries was caused, aggravated, or accelerated by her work injury. The Commission and the trial court agreed with the AJ’s decision.

¶ 14. We are mindful that “[t]he Workers’ Compensation [Act] is construed liberally, and doubtful cases are to be resolved in favor of compensation so that the beneficent purposes of the act may be achieved.” Robinson v. Packard Elec. Div., Gen. Motors Corp., 523 So.2d 329, 332 (Miss.1988). We find that there was substantial evidence to support the Commission’s decision. Therefore, we affirm the judgment of the trial court.

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

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

CARLTON, J.,

dissenting:

¶ 16. I respectfully dissent from the majority’s opinion. I concur with the reasoning set forth by Workers’ Compensation Commission Chairman Liles Williams in his dissent to the Full Commission Order, wherein he states the following:

My two colleagues have voted to affirm the April 14, 2208[sic] Order of the Administrative Judge which found the claimant sustained a compensable back injury on or about November 19, 2005. Even to the Administrative Judge, this is a doubtful claim with a number of inconsistencies in the evidence regarding the occurrence of this alleged injury. I would argue that not only is this a doubtful claim, it is downright hard to believe, and is not supported [by] a preponderance of the credible evidence.
The Claimant first sought medical treatment for a back problem a month after the alleged occurrence on December 20, 2005. According to the doctor’s notes of this visit, the Claimant reported that her back began hurting “a week ago” with no “specific injury or inciting event” to blame. Claimant herself testified she hurt her back specifically on November 19, 2005 when stepping [down] from a truck. The claimant denied this is the history she gave to Dr. Fineburg on December 20, even though Dr. Fineburg dictated these notes in the presence of the Claimant on December 20.
The Claimant also has a long and well[-]dociimented history of back pain, dating back to 2001, as reflected by the medical records of Singing River Hospital and University Medical Center. Claimant, of course, denies these records are accurate, and even denies any recollection of these hospital visits which occurred from October 2001 through October 2004.
The Claimant continued to work until January 20, 2006. From the time she first saw Dr. Fineburg on December 20, 2005, until she quit work on January 20, 2006, she never once related anything to her employer about a work[-]related back injury. Moreover, she reported to the local hospital on January 22 with a worsening of her back condition over the previous day and a half, but without any mention of an injury, work related or otherwise. It apparently wasn’t until the Employer contacted her on January 31, 2006 about her prolonged absence that she attempted to claim her condition was work related, although the Employer representative at the time testified that Ms. Patterson refused to say specifically what kind of work[-]related accident she had.
There are other flagrant inconsistencies in the Claimant’s story which need not be repeated here. Suffice it to say that the Claimant had the burden of proving by a preponderance of the credible evidence that she sustained a work[-]related back injury. In my opinion, she failed miserably, and not even the principle that doubtful cases should be resolved in favor of compensation is enough to compensate for the lack of credible evidence in her favor. I would reverse the Order of the Administrative Judge, and deny this claim accordingly.

¶ 17. Based upon the foregoing, I respectfully dissent. I agree with Commissioner Williams’s dissent finding that Susan Patterson failed to meet her burden of proving by a preponderance of the credible evidence that she sustained a work-related injury.


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    Luther SHEFFIELD a/k/a Luther Wayne Sheffield, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01635-COA.
    Court of Appeals of Mississippi.
    March 22, 2011.
    Rehearing Denied June 28, 2011.

      Leslie S. Lee, Jackson, David A. Stephenson, Meridian, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.

      IRVING, P.J., MYERS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Luther Sheffield appeals his conviction for fondling his teenage daughter. He argues the trial court erred by refusing his proposed jury instruction on simple assault as a lesser-included offense. We disagree and find the record does not support Sheffield’s simple-assault instruction because there was no evidence that Sheffield’s sexually inappropriate actions caused his daughter imminent fear of serious bodily injury.

¶ 2. Further, viewing the evidence in the light most favorable to the verdict, we find no injustice in the jury finding Sheffield guilty based on the testimony of the victim and her friends and family. We therefore affirm the trial judge’s denial of Sheffield’s request for a new trial.

FACTUAL BACKGROUND

¶ 3. On February 23, 2008, Sheffield kissed and caressed his fifteen-year-old daughter in a sexual manner in front of two of her friends. Concerned by Sheffield’s inappropriate behavior, the friends reported the events to a deputy sheriff stationed at their high school. After questioning the daughter, the deputy arrested Sheffield. An indictment was later returned charging Sheffield with touching a child for lustful purposes (fondling) in violation of Mississippi Code Annotated section 97-5-23 (Rev.2006).

¶ 4. At trial, the daughter testified that, during the night of February 23, 2008, her father kissed her on the mouth. Later, while they were in the car with her two friends, he repeatedly rubbed his hand along her inner thigh near her groin. She explained that, since becoming a teenager, her father frequently made her uncomfortable by kissing her on the neck and mouth and caressing her hair. And he often barged in on her while she was dressing in the bathroom, refusing to leave when asked.

¶ 5. Her mother testified that Sheffield would at times have his daughter lay down with him, rubbing her thigh as he fell asleep. Two of the daughter’s friends also testified, both corroborating that Sheffield had kissed his daughter and rubbed her thigh in a way that appeared sexually inappropriate. Testimony also revealed Sheffield'frequently referred to his daughter as a “whore” and a “slut,” as well as other derogatory names.

¶ 6. Before closing arguments, Sheffield requested a jury instruction on simple assault, as a lesser-included offense of fondling. The trial judge refused the instruction because it was neither supported by the evidence nor a lesser-included offense of fondling.

¶7. The jury found Sheffield guilty of touching a child for lustful purposes. Sheffield moved for a new trial, arguing the verdict is against the overwhelming weight of the evidence. The trial judge denied Sheffield’s motion and sentenced Sheffield to fifteen years in the custody of the Mississippi Department of Corrections, with five of those years suspended. Sheffield timely appealed.

DISCUSSION

I. Simple-Assault Jury Instruction

¶ 8. Sheffield requested an instruction that the jury find him guilty of simple assault, and not fondling, if it found “beyond a reasonable doubt that ... Sheffield did attempt by physical menace to put [his daughter] in fear of imminent or serious bodily harm.” Sheffield argues he was entitled to the instruction because simple assault is a lesser-included offense of fondling.

¶ 9._ But simple assault is not a lesser-included offense of fondling. Ladnier v. State, 878 So.2d 926, 932 (¶¶ 21-25) (Miss.2004); Goodnite v. State, 799 So.2d 64, 68 (¶¶ 20-23) (Miss.2001). To be a lesser-include offense, all the elements of simple assault must be included in the elements of fondling. Parker v. State, 825 So.2d 59, 65 (¶ 23) (Miss.Ct.App.2002) (quoting Sanders v. State, 479 So.2d 1097, 1108 (Miss.1985)). And it must be “impossible to commit the greater offense without at the same time committing the lesser included offense.” Id.

¶ 10. The Mississippi Supreme Court has explained that it is possible to commit fondling without committing an assault:

A person is guilty of simple assault if he attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or attempts by physical menace to put another in fear of imminent serious bodily harm. Miss.Code Ann. § 97-3-7. A person is guilty of fondling a child if he is over the age of eighteen, the child was under the age of sixteen, and if the defendant touched the child with either his hands or another part of his body for the purpose of gratifying his lust. Id. § 97-5-23.

Ladnier, 878 So.2d at 932 (¶ 22). A person can be guilty of fondling by “offensive touching which denotes sexual gratification which, while emotionally uncomfortable, does not necessarily cause bodily injury.” Id. at 932 (¶ 24). Thus, the element of bodily injury or imminent fear of serious bodily harm is not necessarily included in the offense of fondling.

¶ 11. Assault, however, under certain circumstances, may be a lesser won-included offense of fondling, carrying a lesser punishment. Compare Miss.Code Ann. § 97-3-7 (Supp.2010) (simple assault punishable up to six months in county jail and $500 fine) with Miss.Code Ann. § 97-5-23 (fondling punishable up to fifteen years in custody of the MDOC and $5,000 fine). See also Brady v. State, 722 So.2d 151, 160-61 (¶ 38) (Miss.Ct.App.1998) (discussing lesser non-included offenses).

¶ 12. Mississippi is one of the few states that allows defendants lesser non-included offense instructions. Compare Griffin v. State, 533 So.2d 444, 447-48 (Miss.1988) (discussing right of defendants in Mississippi to lesser non-included-offense -instructions) with Hopkins v. Reeves, 524 U.S. 88, 97, 118 S.Ct. 1895, 141 L.Ed.2d 76 (1998) (rejecting concept that defendant is entitled to a lesser non-included-offense instruction); State v. Corliss, 168 Vt. 333, 721 A.2d 438, 443 (1998) (finding the allowance of lesser non-included offense instructions “is followed in only a minority of jurisdictions”). The majority of jurisdictions have refused lesser non-included offense instructions reasoning that instructing a jury on an offense not included in the indictment is unprecedented, unworkable, and unfair. See, e.g., Hopkins, 524 U.S. at 97, 118 S.Ct. 1895 (finding “there could be no basis for determining the offenses for which instructions are warranted”); Peo ple v. Birks, 19 Cal.4th 108, 77 Cal.Rptr.2d 848, 960 P.2d 1073, 1074 (1998) (doing away with the lesser non-included offense instruction because, among other problems, it gave “the defendant a superior trial right to seek and obtain conviction for a lesser uncharged offense whose elements the prosecution has neither pled nor sought to prove”); see also Brooks v. State, 18 So.3d 859, 876 (¶¶ 48-54) (Miss.Ct.App.2008) (Carlton, J., dissenting) (discussing problems created by Mississippi’s lesser non-included offense doctrine); McDonald v. State, 784 So.2d 261, 266 (¶¶20, 41) (Miss.Ct.App.2001) (Southwick, J., concurring) (same).

¶ 13. The Mississippi Supreme Court recently reaffirmed its adherence to this minority view. See Williams v. State, 53 So.3d 734 (Miss.2010) (rehearing pending) (reversing murder conviction for trial court’s refusal of defendant’s requested assisted suicide instruction); see also Brooks v. State, 18 So.3d 833, 839-41 (Miss.2009) (finding defendant entitled to reckless-driving instruction in trial for aggravated assault). Therefore, we must ask whether Sheffield’s proposed assault instruction touched on a lesser non-included offense. In reviewing the qualifying factors, we first ask whether the lesser offense arose from the same operative facts. Moore v. State, 799 So.2d 89, 91 (¶7) (Miss.2001). If not, the inquiry ends here. Second, there must be an evidentiary basis in the record for the instruction. Id. The standard for determining whether an eviden-tiary basis exists is the same for a lesser non-included offense as it is for a lesser included offense. Brady, 722 So.2d at 160-61 (¶ 38) (citing Harper v. State, 478 So.2d 1017, 1021 (Miss.1985)). The trial court should grant the instruction unless it can say, “taking the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser [non-]included offense (and conversely not guilty of at least one element of the principal charge).” Id. (quoting Harper, 478 So.2d at 1021).

¶ 14. The trial judge denied the assault instruction because Sheffield failed to meet the second qualification — there was no evidence supporting a reasonable juror’s finding that Sheffield’s actions were designed to instill imminent fear of serious bodily injury. Reviewing the evidence in the light most favorable to Sheffield, we find no error. Sheffield’s daughter did not testify that her father’s touching her on February 23, 2008, put her in fear of serious bodily injury. And her friends testified they reported Sheffield’s behavior because they viewed it as sexual and inappropriate, not because they found it physically threatening. See Ladnier, 878 So.2d at 932 (¶ 24) (noting sexually offensive touching does not necessarily cause bodily injury).

¶ 15. Because none of the evidence shows that Sheffield attempted to put his daughter in fear of serious bodily harm, Sheffield was not entitled to an instruction on the lesser non-included offense of simple assault. Id. at 932 (1125); Goodnite, 799 So.2d at 69 (¶ 25).

II. Motion for New Trial

¶ 16. Sheffield claims the jury took the evidence against him out of context. He argues the jury misunderstood his caressing of his daughter and wrongfully interpreted his intention underlying the touching. He argues that because neither his daughter nor his wife had confronted Sheffield at the time the touching occurred, the jury should have properly inferred that his behavior was neither inappropriate nor a violation of the law.

¶ 17. In reviewing a denial of a motion for new trial, we are instructed to weigh the evidence “in the light most favorable to the verdict,” not the defendant. Weathersby v. State, 919 So.2d 1146, 1149 (¶ 12) (Miss.Ct.App.2005) (citing Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005)). Sheffield’s motion for a new trial challenged the weight of the evidence. Id. “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844 (¶ 18). In other words, a verdict must be “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Weathersby, 919 So.2d at 1149 (¶ 12) (quoting Bush, 895 So.2d at 844 (¶18)).

¶ 18. We find no unconscionable injustice in the trial judge allowing the verdict to stand. To prove fondling, the State must show beyond a reasonable doubt: (1) the defendant is eighteen years of age or older; (2) he handled, touched, or rubbed with his hands or any part of his body or member thereof a child under the age of sixteen years, with or without the child’s consent; and (3) the purpose of the touching was the gratification of his lust or the indulgence of his licentious sexual desires. Goodnite, 799 So.2d at 68 (¶ 22) (citing Miss.Code Ann. § 97-3-7). Sheffield was thirty-four years old on February 23, 2008, and his daughter was fifteen. Sheffield’s daughter testified he kissed her on the lips and rubbed her near her groin. She also testified Sheffield had often touched her in a way that felt uncomfortably sexual and talked explicitly about his having sex with her mother. Her two friends who witnessed Sheffield fondle his daughter testified Sheffield’s behavior appeared inappropriate and sexual in nature. Sheffield also had frequently referenced his daughter in sexually derogatory terms and openly discussed her breasts and her potential sexual activity.

¶ 19. Viewing this evidence in the light most favorable to the verdict, we find sufficient evidence existed for the jury to find Sheffield guilty of touching a child for lustful purposes. Therefore, the trial judge correctly denied Sheffield’s motion for new trial.

CONCLUSION

¶ 20. Finding no error in the trial judge’s refusal of Sheffield’s simple-assault instruction or the denial of Sheffield’s motion for new trial, we affirm the trial court’s judgment.

¶ 21. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF TOUCHING A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF SUPERVISED PROBATION, AND TO PAY A $2,000 FINE, $500 IN RESTITUTION, AND $1,000 TO THE MISSISSIPPI CHILDREN’S TRUST FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUD-ERDALE COUNTY.

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

      . The victim was Sheffield's natural daughter. Because of the nature of the crime and the fact the victim is a minor, we refrain from using her name, referring to her simply as “daughter."

      . The trial judge also sentenced Sheffield to five years supervised probation after he served ten years and ordered him to pay a $2,000 fine, $500 in restitution, and $1,000 to the Mississippi Children’s Trust Fund.


author: ISHEE, J.,

text:
    Eddie Lee SAUNDERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00031-COA.
    Court of Appeals of Mississippi.
    March 22, 2011.
    Rehearing Denied June 28, 2011.
    C. Grant Hedgepeth, Laurel, Leslie S. Lee, Jackson, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   ISHEE, J.,

for the Court:

¶ 1. Eddie Lee Saunders was tried and convicted of murder in the Circuit Court of Forrest County. Two days after the conviction, Saunders, a habitual offender, was sentenced to life in the custody of the Mississippi Department of Corrections without eligibility for probation or parole. Aggrieved, he now appeals his conviction. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Charles Harris left his cell phone lying on the counter at the Handy Pantry in Hattiesburg, Mississippi. Alex Anderson picked up the phone and, in an effort to return the phone, arranged to meet with Harris. Anderson agreed to exchange the phone for fifty dollars; however, he told Harris his name was “Duke.” In fact, “Duke” was the nickname of a teenager from the area, Charles Moore.

¶ 3. After Anderson failed to show at the arranged meeting to return the phone, Harris and Saunders (Harris’s uncle) began looking for the phone and for “Duke.” While attempting to find the phone and to track down “Duke,” the two men learned where “Duke’s” mother lived. After numerous failed attempts to find “Duke” and the phone, Harris and Saunders decided to go back to Saunders’s house.

¶ 4. Upon arriving at Saunders’s home, Saunders instructed Harris to pull up next to the mailbox. At the same time, a white vehicle being driven by Moore a/k/a “Duke” drove up near Saunders and Harris, as they were sitting in their car. Saunders got out of his car and fired a gun several times at Moore’s car, killing Moore. Saunders then got back into the vehicle, pointed the gun at Harris, and told him to drive.

¶ 5. Saunders eventually showed up at the house of Richard McBride. McBride testified that Saunders told him and his grandmother that he had shot someone. Saunders left McBride’s home and tossed the gun into a nearby backyard. Saunders was arrested while running back towards McBride’s house.

¶ 6. Saunders was tried and convicted of murder in the Circuit Court of Forrest County. He was sentenced as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev.2006) to serve a life sentence in the custody of the Mississippi Department of Corrections with no eligibility for parole or early release.

DISCUSSION

I. Motion for Mistrial

¶ 7. Saunders believes that testimony which referenced his prior incarceration was substantially and irreparably prejudicial. Therefore, the trial court was in error in denying his motion for mistrial. We disagree.

¶ 8. The standard of review for denial of a motion for mistrial is abuse of discretion. Rollins v. State, 970 So.2d 716, 720 (¶ 10) (Miss.2007). Further, the Mississippi Supreme Court, with regards to the trial court’s discretion in declaring a mistrial has stated:

The trial court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant’s case. Miss. Unif. Crim. R. Cir. Ct. Prac. 5.15. The trial judge is permitted considerable discretion in determining whether a mistrial is warranted since the judge is best positioned for measuring the prejudicial effect. Roundtree v. State, 568 So.2d 1173, 1178 (Miss.1990). When the trial judge determines that the error does not reach the level of prejudice warranting a mistrial, the judge should admonish the jury to disregard the impropriety in order to cure its prejudicial effect. Perkins v. State, 600 So.2d 938, 941 (Miss.1992); Estes v. State, 533 So.2d 437, 439 (Miss.1988).

Gossett v. State, 660 So.2d 1285, 1290-91 (Miss.1995).

¶ 9. First, Saunders complains of testimony that was in response to his counsel’s questions. “Generally, an appellant cannot complain of damaging testimony if the testimony is in response to his questions.” Triggs v. State, 803 So.2d 1229, 1234 (¶ 14) (Miss.Ct.App.2002). It is clear the testimony about which Saunders complains came in direct response to a question asked during his cross-examination of the witness.

¶ 10. Once the trial court determined the comment did not rise to the level of prejudice which would require a mistrial, the judge admonished the jury to disregard the comment. The Mississippi Supreme Court has held: “The better remedy for an improper comment or question that has been put before the jury is for the court to admonish the jury not to consider the improper statement.” Hughes v. State, 735 So.2d 238, 256 (¶ 65) (Miss.1999). Furthermore, “[i]t must be presumed that the jury will follow the court’s instruction to disregard any inadvertent comments or evidence and to decide the case solely on the evidence presented. To presume otherwise would be to render the jury system inoperable.” Lofton v. State, 818 So.2d 1229, 1233 (¶ 12) (Miss.Ct.App.2002).

¶ 11. The trial court did not abuse its discretion in denying Saunders’s motion for a mistrial. Accordingly, this issue is without merit.

II. Weight of the Evidence

¶ 12. As to Saunders’s challenge to the weight of the evidence, this Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). The court in Bush noted:

We have stated that on a motion for a new trial, the court sits as a thirteenth juror. The motion however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.

Id. Saunders has failed to overcome this burden. Specifically, the State provided evidence that: Saunders was in possession of a gun; the bullet that was removed from the victim’s body was fired from Saunders’s gun; Saunders showed up at the house of Richard McBride with a gun, and Saunders told his grandmother and McBride that he had shot someone.

¶ 13. We find there was sufficient evidence before the jury to return a verdict of guilty; therefore, this issue is without merit.

¶ 14. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE AS A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR PROBATION OR PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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


author: IRVING, P.J.,

text:
    Ronnie MOORE and Jeff Moore, Appellants v. MISSISSIPPI GAMING COMMISSION, Appellee.
    No. 2009-CA-00235-COA.
    Court of Appeals of Mississippi.
    March 29, 2011.
    Rehearing Denied June 28, 2011.

      Jerry L. Mills, Ridgeland, Jeffrey J. Hosford, John P. Scanlon, attorneys for appellants.
    Office of the Attorney General by Thomas H. Mueller, Deanne B. Saltzman, Louis P. Frascogna, attorneys for appellee.
    LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On September 12, 2007, agents of the Mississippi Gaming Commission (MGC) raided Paradise Isle Internet Café in West Point, Mississippi. The agents seized thirty-nine computer terminals, a computer server, and a point-of-sale system, which they believed were illegal gambling devices.

¶ 2. The State filed criminal charges against Ronnie Moore and Jeff Moore in the Clay County Justice Court for their involvement with the internet café. On October 16, 2007, the State requested that the charges against the Moores be dismissed without prejudice until its cyber-crime unit could analyze the machines. On October 18, 2007, the justice court heard arguments regarding whether the seized equipment should be returned to the Moores following the State’s dismissal of the criminal charges. The State requested three weeks to analyze the machines, and the justice court ordered the State to either file charges against the Moores by November 8, 2007, or return the machines. The State appealed the justice court order to the Clay County Circuit Court, arguing that the justice court lacked jurisdiction to order the return of the machines. Following a non-jury trial, the circuit court found that the Moores had no property right in the machines because they were illegal slot machines.

¶ 8. Feeling aggrieved, the Moores appeal and raise four issues, which we have consolidated into two: whether the circuit court erred in finding that the machines were illegal slot machines and that the justice court did not have jurisdiction over the seized machines.

¶ 4. Finding no reversible error, we affirm.

FACTS

¶ 5. The Moores owned and operated the Paradise Isle Internet Café, which provided internet access at an hourly rate and sold long-distance telephone cards. Telephone cards could be purchased using a point-of-sale register operated by an internet-café employee for a minimum of one dollar. Customers who wished to purchase more than five dollars worth of phone time were instructed to complete their purchase at one of the internet cafe’s computer terminals. For each dollar spent, customers received 100 “sweepstakes points.” No purchase was required to participate in the sweepstakes, and customers could request a free entry form from an internet-cafe employee.

¶ 6. Customers could redeem sweepstakes points by mailing in a free entry form, using the “quick redeem” feature, or using one of the internet cafe’s computer terminals. The “quick redeem” option allowed customers to redeem their sweepstakes points at the point-of-sale register. A customer using a computer terminal to redeem his sweepstakes points would swipe his phone card, which has a magnetic strip, through a card reader at the computer terminal. Sweepstakes points would be displayed on the computer screen, and the customer would be given the option of playing a variety of sweepstakes games. The games simulated those traditionally played on slot machines. As a customer played a game, points would be accumulated and displayed in a separate “win account.” Points won could not be used for additional play. Instead, when a customer had played all of his sweepstakes points, he would be given the option of using the points from the “win account” to buy additional phone time, which included additional sweepstakes points, or redeem his points for cash. The Moores contend that playing the games had no impact on sweepstakes winnings; instead, winnings were pre-determined upon activation of the telephone card.

¶7. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶8. “The findings of a circuit court judge sitting without a jury ‘will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence.’ ” City of Jackson v. Spann, 4 So.3d 1029, 1032 (¶9) (Miss.2009) (quoting Donaldson v. Covington County, 846 So.2d 219, 222 (¶ 11) (Miss.2003)).

1. Legality of Seized Machines

¶ 9. The Moores argue that the circuit court erred in finding that the seized machines were illegal slot machines because the elements of consideration and chance were not present. Mississippi’s Gaming Control Act defines a slot machine as:

any mechanical, electrical or other device, contrivance or machine which, upon insertion of a coin, token or similar object, or upon payment of any consideration, is available to play or operate, the play or operation of which, whether by reason of the skill of the operator or application of the element of chance, or both, may deliver or entitle the person playing or operating the machine to receive cash, premiums, merchandise, tokens or anything of value, whether the payoff is made automatically from the machine or in any other manner.

Miss.Code Ann. § 75-76-5(ff) (Rev.2002). Relying on the above definition, the Mississippi Supreme Court has held that a gambling device is a slot machine if:

1. Its play or operation requires the insertion of money, tokens or similar objects, or payment of consideration; and
2. As a result of playing or operating the device, the player or operator has the potential to win a reward in the form of cash, premiums, merchandise, token, or anything of value; and
3. The winning of some part or all of the potential reward is dependent in substantial part on an element of chance.

Miss. Gaming Comm’n v. Henson, 800 So.2d 110, 113 (¶ 10) (Miss.2001).

¶ 10. The Moores argue that Mississippi Gaming Commission v. Treasured Arts, Inc., 699 So.2d 936 (Miss.1997) is analogous to their case. In Treasured Arts, our supreme court considered whether a “scratch-and-win” game piece that accompanied a long-distance telephone card constituted a lottery. Id. at 938 (¶ 9). The supreme court found that the consideration was paid for the telephone card itself, not the attached game piece. Id. at 940 (¶ 20). Because no additional consideration was paid for the opportunity to win a prize, the element of consideration was not present, and the game piece did not constitute a lottery. Id. at 940 (¶ 22).

¶ 11. We find that Treasured Arts is inapplicable. As stated, in Treasured Arts, the issue was whether the game pieces attached to the telephone cards violated the lottery statutes. Id. at 939 (¶ 15). Here, we are concerned with whether the equipment seized from the internet café is a slot machine. As such, we find that Mississippi Gaming Commission v. Six Electronic Video Gambling Devices, 792 So.2d 321 (Miss.Ct.App.2001) is controlling. In Six Electronic, this Court considered whether a “Lucky Shamrock” vending machine that dispensed telephone cards constituted an illegal slot machine. Id. at 327 (¶ 22). The Lucky Shamrock operated as follows:

For one dollar, the Lucky Shamrock dispense[d] a two[-]minute emergency long[-]distance calling card, good only for one call no matter the time actually used. With each card, the purchaser also receive[d] a game piece. This ha[d] a bar code on the back which [was] read by the machine as the card [was] being dispensed. The display on the machine then simulate[d] a slot machine by spinning nine squares. After a few moments the display show[ed] the same combination of squares as on the game piece. Again simulating a slot machine, the machine light[ed] up and playfed] music if the patron [was] a winner. A cashier at the store verifie[d] the winning card. This clerk then [paid] the prize money[, which could] be in the amount of one dollar up to five hundred dollars.

Id. at 323 (¶ 3).

¶ 12. The Six Electronic court found that the Lucky Shamrock was an illegal slot machine, and we see no reason to hold differently here. Id. at 327 (¶ 22). While the gambling devices seized from the internet café were computer terminals and not vending machines, they operated in a nearly identical fashion. Internet-café customers would purchase a telephone calling card, swipe the card through a card reader attached to the computer terminal, and “play” sweepstakes points by selecting various video games that simulated slot machines. Customers could use points won to purchase more phone time or redeem points for cash.

¶ 13. Other jurisdictions have also held that internet cafés offering sweepstakes schemes violated gambling laws. See Barber v. Jefferson County Racing Assoc., Inc., 960 So.2d 599 (Ala.2006). Barber involved an internet café that sold internet access or “cybertime.” Id. at 604. Customers who purchased cybertime were given a plastic access card with an assigned account number. Id. at 605. For every dollar of cybertime purchased, the customer received 100 sweepstakes entries. Id. Customers would swipe their access cards through an electronic reader, which revealed whether they had won or lost. Id. at 608. The electronic readers allowed customers to reveal their sweepstakes entries by playing “casino-style” games. Id. at 606.

¶ 14. The owners of the internet café in Barber argued, like the Moores do here, that the elements of consideration and chance were missing from the sweepstakes. Id. at 609-10. The owners argued that consideration was paid for cybertime and that no additional consideration was paid to participate in the sweepstakes. Id. at 610. However, the Barber court noted that few customers used the internet kiosks while customers “were lined up at all hours to use the readers.” Id. at 611. Additionally, customers “purchased additional cybertime-with the accompanying entries-even though they already had large quantities of unused cybertime.” Id. The court concluded that if customers were “paying to play the readers, rather than to acquire, or in addition to acquiring, cyber-time, the element of consideration ... [was] satisfied.” Id.

¶ 15. At the Moore’s internet café, there were thirty-nine computer terminals equipped with card readers, but only a single computer was devoted to internet access. Additionally, Agent E.W. Williams, an MGC agent who participated in the undercover investigation of the internet café which led to the charges against the Moores, testified that the employee who sold him a telephone card did not explain how to use the card or tell him how many minutes were on the card. In fact, Agent Williams testified that he did not know that the access card that he received was also a telephone card.

¶ 16. Like the customers in Barber, it is clear that the customers of the Moores’ internet café were purchasing prepaid telephone cards to play the computer terminals rather than to make telephone calls. As such, we find that the element of consideration is satisfied. This issue is without merit.

¶ 17. The Moores also argue that the element of chance is not present because the outcome of each sweepstakes entry was determined before the customer purchased the telephone card. However, in Six Electronic, this Court explained that the element of chance is considered from the player’s point of view; “[w]hat the machine ‘knows’ does not affect the player’s gamble.” Six Electronic, 792 So.2d at 326 (¶ 15). Additionally, the Barber court concluded that even though the outcome of the sweepstakes entries was predetermined and not impacted by playing games on the electronic readers, the element of chance existed at the point of sale. Barber, 960 So.2d at 609. We see no reason to find differently here. While playing the games at the computer terminals did not impact the outcome of the sweepstakes points, an element of chance still existed because a consumer who purchased a telephone card did not know whether the card contained a winning or losing sweepstakes points. This issue is without merit.

2. Jurisdiction Over Seized Machines

¶ 18. The Moores contend that the justice court retained jurisdiction over the seized machines; therefore, it was the proper court to order their return. This issue is now moot given our finding that the seized machines were illegal slot machines. Mississippi Code Annotated section 97-33-7(2) (Rev.2006) states:

No property right shall exist in any person, natural or artificial, or be vested in such person, in [slot machines]; and all such devices are hereby declared to be at all times subject to confiscation and destruction, and their possession shall be unlawful, except when in the possession of officers carrying out the provisions of this section. It shall be the duty of all law-enforcing officers to seize and immediately destroy all such machines and devices.

Because the computers and other equipment seized from the Moores constitute illegal slot machines, the Moores have no property rights to assert. Consequently, there was no legal basis for the justice court’s November 1, 2007, order. This issue is without merit.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: BARNES, J.,

text:
    Jamar Amin MOORE, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01375-COA.
    Court of Appeals of Mississippi.
    April 5, 2011.
    Rehearing Denied June 28, 2011.

      Imhotep Alkebu-Lan, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. Jamar Moore appeals the Circuit Court of Coahoma County’s judgment convicting him of possession of hydrocodone and sentencing him to sixteen years in the custody of the Mississippi Department of Corrections (MDOC) as a habitual offender. Moore contends that the trial court erred in (1) denying him his theory-of-the-case jury instruction; (2) failing to grant a mistrial when he testified he did not want to return to prison; and (8) subjecting him to cumulative error. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In the early afternoon of April 16, 2008, Officers Ricky Bridges, Joseph Wide, Myette Dawson, and Vincent Ramirez, members of the narcotics division of the Clarksdale Police Department, were patrolling Clarksdale, Mississippi, in their unmarked city-owned vehicle. Officer Wide received a call from a reliable confidential informant (Cl) stating that Moore had approximately two ounces of marijuana in his vehicle. Both Moore and the Cl worked at Domino’s Pizza in Clarksdale. The Cl informed Officer Wide that Moore was preparing to leave the store to make a large pizza delivery to a school. The officers drove to the store and observed Moore loading pizzas into his vehicle. As Moore drove toward the school, the officers followed him and performed a traffic stop when Moore failed to signal a turn. Moore was informed that, in addition to the traffic offense, he had been stopped because a reliable source stated he had marijuana in his vehicle. Once stopped, Officer Bridges approached Moore’s vehicle and noticed the strong odor of marijuana emanating from it. No illegal substances were found in Moore’s vehicle, but two sandwich-like baggies with a green, leafy substance and some pills were found in Moore’s pants. These items proved to be marijuana and eleven tablets of hydro-codone.

¶3. Officer Wide testified that Moore and the Cl were the only individuals working at Domino’s at the time; so Cedric Bolton, another Domino’s employee and a friend of the Cl, was instructed by the Cl to come and pick up the pizzas in order to deliver them to the school. In the meantime, Moore was transported to the police department, where he offered to work off his charges by becoming a confidential informant. Law enforcement ultimately agreed, and Moore was released without arrest.

¶ 4. Moore did not adequately assist law enforcement as a Cl; thus, in November 2008, the grand jury of Coahoma County returned a two-count indictment against Moore for possession of hydrocodone and marijuana. The trial court later granted the State’s motion to amend Moore’s indictment to include his status as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007).

¶ 5. At Moore’s trial, the Cl testified that he became an informant because someone “put the dope on [him]”; so he was working off a charge for possession of marijuana. The Cl testified that he set Moore up by telling him to bring an ounce of marijuana to work the next day, and Moore complied. The Cl called Office Wide to tell him that Moore had the marijuana with him, and approximately fifteen minutes later, Moore was pulled over. The Cl denied planting any drugs in the glove box of Moore’s vehicle.

¶ 6. The defense’s theory of the case was that the Cl had planted the marijuana on Moore. However, Officers Wide and Dawson testified they did not tell the Cl to plant the marijuana in Moore’s vehicle or pants. Moore testified in his own defense. He claimed that Bolton was at the store helping the Cl make the large order of pizzas. Returning from a delivery, Moore briefly went to the restroom. When he came out, Bolton and the Cl had already loaded most of the pizzas into his vehicle. Moore then proceeded to the school. When law enforcement pulled him over, Moore went to retrieve his insurance card from his glove box; he was surprised to see a bag of marijuana fall out. He also noticed another bag of marijuana “barely pushed up under the passenger’s seat.” Moore claimed that he then put the drugs in his pants in order to hide them from the police. Moore speculates that the Cl put the marijuana in his vehicle. Regarding the hydrocodone pills, Moore admitted possession of them, claiming he would take them occasionally for a back injury due to an accident. However, Moore also admitted that he did not have a prescription for the pills; instead, he obtained the pills from “various places, people.”

¶ 7. At the end of his trial, Moore submitted a jury instruction on his theory of the case. The State objected, and the trial court denied the jury instruction because it improperly commented on the evidence and stated a theory as a fact.

¶ 8. The jury found Moore guilty of Count I, possession of hydrocodone, but it found him not guilty of Count II, possession of marijuana. At the sentencing hearing, evidence was presented of Moore’s two prior felonies. Accordingly, the trial court sentenced Moore as a habitual offender under section 99-19-81 to the maximum sentence of sixteen years in the custody of the MDOC under Mississippi Code Annotated section 41 — 29—139(c)(1)(C) (Rev.2009), without the possibility of parole or probation. Moore now appeals.

ANALYSIS OF THE ISSUES

1. Jury Instruction

¶ 9. Moore contends that the trial court erred in denying his theory-of-the-case jury instruction, which reads: “Jamar Moore’s theory of the case is that he would not have been stopped and charged with these offenses if [the Cl] had not put the marijuana in his car and called the police and if you so find you must find Jamar Moore not guilty.” The trial court denied the instruction, finding it improperly commented on the evidence and presented a theory as a fact.

¶ 10. The standard of review for jury instructions is well established:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Austin v. State, 784 So.2d 186, 192 (¶ 18) (Miss.2001). “[I]f the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Williams v. State, 803 So.2d 1159, 1161 (¶ 7) (Miss.2001).

¶ 11. Moore cites to Manuel v. State, 667 So.2d 590 (Miss.1995) in support of his argument. In Manuel, the Mississippi Supreme Court found reversible error in a homicide case, in part, because the defendant was entitled to a jury instruction on her theory of self-defense; and the trial court improperly failed to put this instruction into proper form. Id. at 593. The crux of the issue in Manuel, however, was that the trial court denied a theory of the defense instruction because it was peremptory in nature and was the only theory of the defendant’s defense to the jury. Additionally, in Manuel, the trial court failed in its duty to make sure the instructions were in the proper form for submission to the jury. Manuel also states that while a defendant “is entitled to have an instruction on the theory of [his] defense, that instruction should not single out certain parts of the evidence to the point that it amounts to a comment on the weight of the evidence.” Id. (citing Keys v. State, 635 So.2d 845, 848-49 (Miss.1994)).

¶ 12. Here, the jury instruction Moore offered on his theory of the case did not include any type of defense; thus, the theory of his case is not relevant. Speculating on whether or not Moore may have been stopped by law enforcement if the Cl had not called the police is not a legal defense. Further, the instruction stresses the notion that the Cl planted the marijuana on Moore, thereby improperly commenting on the weight of the evidence.

¶ 13. Moore also claims that if his theory-of-the-ease instruction had been given, it would be reasonable to assume he would have been found not guilty of possession of hydrocodone. We disagree. Moore admitted at trial that he had illegally possessed the hydrocodone pills. This admission was sufficient for the jury to find him guilty of possession of hydrocodone. Therefore, the trial court did not err in denying this jury instruction.

2. Officer Wide’s Testimonial Remark on Moore’s Prior Conviction

¶ 14. At Moore’s trial, during the direct examination of Officer Wide by the prosecutor, Officer Wide recounted what had happened on April 16. The following colloquy occurred:

Q. What happened next?
A. We transported Mr. Moore down to the police department.
Q. After you transported Mr. Moore down to the police department, did he say anything to you?
A. Yes, sir. We ... was talking with him, advising him what was going on, and he told us that he had been in trouble and all that and he didn’t want to go back to prison....

Defense counsel promptly objected, requesting that the jury be instructed to disregard the last statement, and moved for a mistrial. The trial judge sustained the objection, granted the requested instruction to the jury, but denied the motion for a mistrial. At the close of evidence, the trial judge also gave the following jury instruction (C — 1), which stated: ‘You should not speculate as to possible answers to questions which the Court did not require to be answered. Further, you should not draw any inference from the content of those questions. You are to disregard all evidence which was excluded by the Court from consideration during the course of the trial.”

¶ 15. Moore now argues he was prejudiced by this mention of his prior criminal history and should have been granted a mistrial. He also mentions that this “unjustified question” brings up the issue of prosecutorial misconduct.

¶ 16. “The standard of review for denial of a motion for mistrial is abuse of discretion.” Dora v. State, 986 So.2d 917, 921 (¶ 8) (Miss.2008). The trial court has “the discretion to determine whether the objectionable comment is so prejudicial that a mistrial should be declared.” Hampton v. State, 910 So.2d 651, 655 (¶ 9) (Miss.Ct.App.2005) (citing Edmond v. State, 312 So.2d 702, 706 (Miss.1975)). “Absent unusual circumstances, where objection is sustained to improper questioning or testimony, and the jury is admonished to disregard the question or testimony, we will not find error.” Hill v. State, 4 So.3d 1063, 1065-66 (¶ 16) (Miss.Ct.App.2009) (quoting Wright v. State, 540 So.2d 1, 4 (Miss.1989)). Moreover, when the trial court instructs the jury, it is presumed the jury follows the instructions. Id. (citing Puckett v. State, 737 So.2d 322 (¶ 72) (Miss.1999)).

¶ 17. Here, the trial court admonished the jury to disregard Officer Wide’s testimony and was given a written jury instruction to the same effect. Further, we find no evidence of prosecutorial misconduct. The question was not stated to elicit an objectionable answer; instead, Officer Wide volunteered the information. Accordingly, the trial court did not abuse its discretion in denying Moore’s motion for a mistrial.

3. Cumulative Error

¶ 18. Finally, Moore argues that even if the above errors standing alone do not constitute reversible error, their cumulative prejudicial effect deprived him of a fair trial; thus, his conviction should be reversed. The Mississippi Supreme Court has held: “Where there is no error in any one of the alleged assignment of errors, there can be no error cumulatively.” Hughes v. State, 892 So.2d 203, 213 (¶ 29) (Miss.2004) (citing Davis v. State, 660 So.2d 1228, 1261 (Miss.1995)). Because there was no individual error here, there can be no cumulative error. This issue is without merit.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF POSSESSION OF HYDROCODONE AND SENTENCE OF SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AS A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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