author: WELCH, J.

text:
    Kevin D. SMITH v. ISLE OF CAPRI CASINO & HOTEL.
    No. 2010 CA 0161.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2010.
    Rehearing Denied Oct. 4, 2010.

      Kevin D. Smith, Baton Rouge, LA, In Proper Person, Plaintiff-Appellant.
    F. Scott Kaiser, Baton Rouge, LA, for Defendants-Appellees, St. Charles Gaming Co. d/b/a Isle of Capri Casino & Hotel and Cambridge Integrated Services, Inc.
    Before CARTER, C.J., and GAIDRY and WELCH, JJ.
   WELCH, J.

12Plaintiff, Kevin D. Smith, appeals a judgment sustaining a peremptory exception raising the objection of res judicata filed by defendants, St. Charles Gaming Co. d/b/a Isle of Capri Casino & Hotel (Isle of Capri) and Cambridge Integrated Services Group, Inc. (Cambridge) and dismissing his workers’ compensation claim. We affirm.

BACKGROUND

On June 1, 2009, plaintiff filed this disputed claim for compensation benefits in the Office of Workers’ Compensation (OWC) against Isle of Capri, his employer, and its claim administrator, Cambridge. Plaintiff alleged that on December 9, 2004, he was cleaning out a storage room and was bitten by a spider on his left hand, and also ruptured two discs in his neck on that day from heavy lifting.

Defendants filed a peremptory exception raising the objection of res judicata, urging that the parties entered into a valid compromise agreement releasing defendants from all past and future liability for plaintiff’s claims for compensation, medical expenses, and claims of whatever kind, arising out of any accident or injury occurring before the date of the agreement. Defendants asserted that the compromise agreement, entered into in order to settle an ongoing disputed claim for compensation previously filed in the OWC, satisfied all of the legal requirements set forth in the Louisiana Workers’ Compensation Act. In opposition to the exception, plaintiff argued that he settled only his claim for the spider bite injury and never intended to settle his separate claim for the two ruptured discs, for which his employer had been paying compensation benefits, that he was not represented by counsel at the time the compromise agreement was approved by the Workers’ Compensation Judge (WCJ), and he was never apprised by the WCJ that he was settling both of his claims.

| ^Following a hearing, at which both parties presented evidence, the WCJ found that plaintiff settled any claims he had against defendants for any injuries arising on December 9, 2004, and sustained the exception of res judicata.

LAW AND DISCUSSION

The workers’ compensation law contains specific requirements which govern the compromise of claims. The requirements for effecting a compromise settlement of a workers’ compensation claim are set out in subsections “A,” “B,” and “C” of La. R.S. 28:1272 as follows:

A. A lump sum or compromise settlement entered into by the parties under R.S. 23:1271 shall be presented to the workers’ compensation judge for approval through a petition signed by all parties and verified by the employee or his dependent, or by recitation of the terms of the settlement and acknowl-edgement by the parties in open court which is capable of being transcribed from the record of the proceeding.
B. When the employee or his dependent is represented by counsel, and if attached to the petition presented to the workers’ compensation judge are affidavits of the employee or his dependent and of his counsel certifying each one of the following items: (1) the attorney has explained the rights of the employee or dependent and the consequences of the settlement to him; and (2) that such employee or dependent understands his rights and the consequences of entering into the settlement, then the workers’ compensation judge shall approve the settlement by order, and the order shall not thereafter be set aside or modified except for fraud or misrepresentation made by any party.
C.When the employee or his dependent is not represented by counsel, the workers’ compensation judge shall determine whether the employee or his dependent understands the terms and conditions of the proposed settlement, and shall approve it by order, unless he finds that it does not provide substantial justice to all parties, and the order shall not thereafter be set aside or modified except for fraud or misrepresentation made by any party.

There can be no settlement of a workers’ compensation claim in the absence of compliance with the procedure prescribed by La. R.S. 28:1272. Nguyen v. Lengsfield Bros., Inc., 417 So.2d 525, 527 (La.App. 4th Cir.1982). Once the procedural requirements of the workers’ compensation law have been complied with and an order approving a compromise settlement has been entered by the |4WCJ, the judgment is conclusive,. and it cannot be set aside except for fraud, misrepresentation, or ill practices. See Smith v. Cajun Insulation, Inc., 392 So.2d 398, 401-402 (La.1980); Morris v. East Baton Rouge Parish School Board, 93-2396 (La.App. 1st Cir.3/3/95), 653 So.2d 4, writ denied, 95-0852 (La.5/5/95), 654 So.2d 335; Condon v. Johns-Manville Sale Corp., 448 So.2d 169, 171 (La.App. 5th Cir.1984).

At the hearing on the exception of res judicata, defendants introduced documents confected in connection with the March 13, 2009 settlement of plaintiffs claims against them arising in connection with an earlier lawsuit seeking additional compensation benefits for a spider bite injury to his hand on December 9, 2004. The first, a joint petition for approval of the compromise settlement setting forth the terms of the parties’ settlement, clearly refers to the December 9, 2004 spider bite as the basis for the parties’ dispute and sets forth that the parties disputed whether plaintiffs injuries had healed or were work-related. The agreement notes that plaintiff had been paid workers’ compensation indemnity benefits totaling $110,197.64 and medical benefits in the amount of $69,778.25. The agreement further states:

In order to compromise and settle the disputes existing among these parties, Employer has agreed to pay $19,000.00 in full settlement of Employee’s claim for all workers’ compensation benefits, medical expenses, penalties and attorney’s fees, including any of Employee’s medical expenses related in any way to the alleged work accident of December 9, 2004, or any work-related injuries incurred before this settlement is approved, in full and final settlement, satisfaction and compromise of any and all claims which Employee has now or might hereafter acquire against Employer, because of the alleged accidental injury described above, or anything else that occurred while Employee was employed by Employer.

Defendants also introduced a judgment of approval of the proposed settlement signed by the WCJ on March 13, 2009. Therein, the WCJ expressed the opinion that the proposed settlement was fair and equitable and entered into primarily to avoid continuing litigation and was in substantial accord with the workers’ | .^compensation law. The judgment decreed that upon payment of the sum of $19,000.00 to plaintiff, defendants “shall be forever released and relieved from all past and future liability” for claims asserted by plaintiff for compensation, medical expenses and claims arising from any accident or injury occurring prior to the date of the settlement agreement. Lastly, defendants offered a joint motion to dismiss the earlier disputed claim for compensation, setting forth that defendants paid $19,000.00 to plaintiff pursuant to the approved settlement agreement.

In opposition to the exception of res judicata, plaintiff submitted a memorandum in which he insisted that the March 13, 2009 settlement covered only the injuries he sustained as a result of the spider bite. He urged that he suffered separate injuries to his neck as a result of heavy lifting on the same date as the spider bite, December 9, 2004. Plaintiff asserted that he reported these injuries and was receiving compensation for these injuries, but was not aware that he was settling both of his claims based on the spider bite and the ruptured discs when he entered into the settlement. Plaintiff introduced a letter written by him to the OWC prior to the date on which the settlement agreement was signed, indicating that his attorney had withdrawn from the case. Additionally, he introduced some medical records that an MR1 had purportedly been taken in 2006 in connection with his claim of pain in his neck and hand, along with a November 12, 2008 disputed claim he filed in the OWC in which he listed his neck and left hand as parts of his body that had been injured on December 9, 2004. At the hearing, plaintiff argued that his neck injury was a separate injury he reported to his employer and that the WCJ, who was also hearing the exception of res judicata, did not advise him that he was settling claims for both of his accidental injuries occurring on December 9, 2004.

To challenge plaintiffs claim that he reported a separate neck injury to his employer, defendants introduced an August 15, 2007 disputed claim for | ^compensation filed by plaintiff in the OWC in which he listed only his left hand as having been injured as a result of the December 9, 2004 spider bite. They also introduced the affidavit of Bryan Leach, employed by defendant as its head of risk management, who attested to his familiarity of plaintiffs claim for compensation benefits arising from an alleged work accident on December 9, 2004, and that plaintiff always represented that his injuries arose out of a work accident related to the alleged spider bite. At no time, Mr. Leach attested, did plaintiff ever report to his employer that he had some separate injury to his neck or spine arising out of his employment at any time. Several documents were attached to the affidavit, identified by Mr. Leach, in which plaintiff referenced the reported injury of a spider bite to the left hand and made no mention of a separate neck or spine injury.

In sustaining the exception of res judi-cata, the WCJ stated that she always asks workers’ compensation claimants whether they understand that they are settling any and all claims with opposing counsel related to “this job accident” and recalled so asking plaintiff and receiving a positive response. The WCJ found that settlement covered any claims plaintiff had against his employer while he worked for them, and that he specifically settled any claims he had for the date of the accident, December 9, 2004, for the sum of $19,000.00.

Plaintiff did not seek to set aside the settlement on the basis of fraud, misrepresentation, or ill practices. While we recognize that the failure of a WCJ to have a settlement discussion with an unrepresented employee may give rise to a cause of action for nullity as recognized by the Supreme Court in Smith, 392 So.2d at 402, plaintiff has not alleged that such a discussion did not take place. Rather, he alleges that the WCJ did not inform him that he was settling his claim for benefits arising from a neck injury sustained on the same day as the spider bite injury. Defendants offered evidence indicating that plaintiff did not assert a separate claim based on the alleged neck injury resulting from heavy lifting prior to |7the date on which he filed the instant disputed claim for compensation. Plaintiff failed to offer evidence that he did present a separate claim for benefits based on two ruptured discs resulting from heavy lifting to the WCJ prior to the date on which she approved the settlement. Plaintiff has not alleged facts which, even if true, could serve as a basis for setting aside the compromise agreement. Therefore, the compromise agreement is valid and enforceable and has acquired the quality of a thing adjudged.

The authority of a thing adjudged resulting from the compromise agreement extends only to those matters the parties expressly intended to settle. Bailey v. Martin Brower Co., 94-1179, p. 3 (La.App. 1st Cir.4/7/95), 658 So.2d 1299, 1301. The only issue is whether the parties intended to compromise the claim for which plaintiff now seeks to recover benefits when they entered into the compromise agreement.

In the compromise agreement, plaintiff and defendants expressly settled all of plaintiffs claims for all workers’ compensation benefits, medical expenses, penalties, and attorney’s fees related in any way to the alleged work accident of December 9, 2004, “or any work-related injuries incurred before this settlement is approved,” because of the alleged accidental injury described in the agreement, as well as “anything else that occurred” while plaintiff was employed by Isle of Capri. We conclude, as did the WCJ, that this language clearly demonstrates that the parties agreed to bring to a conclusion all disputes existing between them prior to the date on which the agreement was executed, whether they arose from the alleged spider bite or from any other cause, in exchange for the sum of $19,000.00. The claim for which plaintiff now seeks recovery clearly falls under this language of the compromise agreement as it occurred pri- or to the date on which the settlement agreement was entered into, it was not based on the alleged spider bite, and it constituted a claim based on “anything else that occurred” while plaintiff |swas in Isle of Capri’s employ. Therefore, because the parties clearly intended to compromise and release the claim for which plaintiff now seeks to recover compensation benefits, the WCJ correctly sustained the exception of res judicata.

CONCLUSION

For the foregoing reasons, the judgment sustaining the peremptory exception raising the objection of res judicata and dismissing this workers’ compensation claim is hereby affirmed. All costs of this appeal are assessed to plaintiff, Kevin D. Smith.

AFFIRMED.


source: Caselaw Access Project

author: KLINE, J.

license: Public Domain

text:
    STATE of Louisiana, DIVISION OF ADMINISTRATION, OFFICE OF FACILITY PLANNING & CONTROL v. INFINITY SURETY AGENCY, L.L.C., Benetech, L.L.C., and JRDKS Construction, L.L.C., A Joint Venture, and Benetech, L.L.C.; and JRDKS Construction, L.L.C.
    No. 2010 CA 0123.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2010.

      Pamela Miller Perkins, Jason Adam Bonaventure, Evan Marshall Alvarez, Baton Rouge, Louisiana, for Plaintiff/Appellant, Division of Administration, Office of Facility and Control, State of Louisiana.
    Taylor S. Carroll, Alexander J. Mijalis, Baton Rouge, Louisiana, for Defendant/Appellee, Infinity Surety Agency, L.L.C.
    Jonathan P. Lemann, Claire E. Easter-ling, Robert E. Couhig, Jr., Gary J. Rouse, New Orleans, Louisiana, for Defendants/Appellees, Benetech, L.L.C. and JRDKS Construction, L.L.C., A Joint Venture and Benetech, L.L.C.
    Before KUHN, PETTIGREW JJ., and KLINE, J., pro tempore.

      . Judge William F. BCline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   KLINE, J.

|2The matter involves whether damages can be assessed when a bid bond for a public works contract was issued by an unauthorized surety company. The issue on appeal is whether the trial court erred in ruling that the contractor and its surety were not liable for damages when the submitted bid for a Louisiana Public Works Act (LPWA) contract included a bid bond issued by a company not authorized under La. R.S. 38:2219. Here, the trial court granted the exceptions of no cause of action filed by defendants, Infinity Surety Agency, LLC (Infinity) and Benetech, LLC, Benetech, LLC and JRDKS Construction, LLC, a Joint Venture (Joint Venture). Judgment was signed; the State of Louisiana, Division of Administration, Office of Planning and Control (the State), appealed. For the following reasons, we affirm the trial court judgment.

PERTINENT FACTS

On May 29, 2008, the State opened bids for the Bayou Segnette Project (the Project). Bidding on the Project required that any surety retained to secure a bid must be authorized to write bonds in accordance with La. R.S. 38:2219. On July 9, 2008, Joint Venture submitted a bid secured by Infinity; the submitted bid form misrepresented that it met the La. R.S. 38:2219 requirements. The State failed to reject the bid based on the surety’s noncompliance with the statute. The State instead awarded . the contract to Joint Venture, its lowest bidder. Joint Venture and Infinity returned the signed contract, but were unable to provide an acceptable performance bond even though the State gave additional time for them to do so. On November 3, 2008, the State notified Joint Venture and Infinity that it was seeking forfeiture of the bid bond as liquidated damages for the delay and for the additional work caused by their failure to produce an acceptable bond. The additional work included costs to rebid the contract, delay damages for the four ^months delay in starting the work, the difference between Joint Venture’s bid and the bid ultimately accepted for the project, attorney fees, and court costs.

Joint Venture and Infinity both filed exceptions of no cause of action. The matter was heard and the trial court granted both, allowing the State fifteen days to amend; when the State did not amend, the trial court dismissed the suit with prejudice. The State appealed, alleging that the trial court erred:' (1) in holding that the State was not entitled to liquidated damages, (2) in allowing fraudulent documentation to shield them from damages, (3) and by ruling that the petition did not state a cause of action for tort misrepresentation.

DISCUSSION

The State first argues that the failure to execute and deliver a signed contract along with a proper performance and payment bond gives it the right to reject the bid and retain the bid bond as liquidated damages. The State contends that the clear language of the bid form states that after receiving the contract from the State, the winning bidder has ten days to execute and deliver a signed contract along with the required bonds. The State claims that it relied on the documents submitted by Joint Venture and when it could not comply with the terms, the State was entitled to retain the bid bond.

The requirements for bid bonds for public works, however, are provided for under La. R.S. 38:2218 C:

If bid bond is used, it shall be written by a surety or insurance company currently on the U.S. Department of the Treasury Financial Management Service list of approved bonding companies which is published annually in the Federal Register, or by a Louisiana domiciled insurance company with at least an A — rating in the latest printing of the A.M. Best’s Key Rating Guide to write individual bonds up to ten percent of policyholders’ surplus as shown in the A.M. Best’s Key Rating Guide or by an insurance company in good standing licensed to write bid bonds which is either domiciled in Louisiana or owned by Louisiana residents.

14The awarding authority has a duty to carefully consider the •written bid. See Triad Resources and Systems Holdings, Inc. v. Parish of Lafourche, 577 So.2d 86, 89 (La.App. 1 Cir.1990). The statutory and bid form requirements, including those included by reference to other documents, must be completely and accurately observed. Barriere Const. Co., LLC v. Terrebonne Parish Consol, Government, 99-2271, p. 7 (La.App. 1 Cir. 2/18/00), 754 So.2d 1123, 1127. A nonconforming bid must be rejected as non-responsive. See Broadmoor, LLC v. Ernest N. Mortal New Orleans Exhibition Hall Authority, 04-0211, 04-0212, pp. 19-20 (La.3/18/04), 867 So.2d 651, 663.

In this case, the bid bond was not written by an authorized surety. The bid therefore, did not comply with the statutory requirements and should have been rejected as non-responsive. The State has failed to acknowledge this duty. The nonconforming bid was submitted but, for whatever reason, was not immediately rejected by the State. The State, therefore, seems to be making an argument for exclusion of the duty to determine compliance. But the clear reading of La. R.S. 38:2212 A(l)(b) provides that the provisions and requirements of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be waived. Further, any bid not meeting the statutory requirements of the statute is null and void. La. R.S. 38:2220.

As stated in the trial court’s reasons for judgment, if the successful bidder is awarded the contract and fails to execute the contract within the specified time frame, then the State has a right to liquidated damages. In this case however, the bid was non-responsive because the bid did not comply with the statute. We agree with the trial court’s rationale. Here, Joint Venture’s bid was non-responsive ^because it did not meet the statutory requirements of the statute, and is therefore, null and void. See La. R.S. 38:2220.

Although the State also argues that Joint Venture and Infinity should not be allowed to escape paying the penalty by its alleged fraud, there is no ambiguity in the statute. The bid did not meet the requirements of the statute and is null and void. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written. La. C.C. art. 9, New Orleans Rosenbush Claims Service, Inc. v. The City of New Orleans, 94-2228, p. 11 (La.4/10/95), 653 So.2d 538, 544. Thus, the trial court did not err in dismissing the State’s claims for liquidated damages, because as articulated above,' a non-conforming bid must be rejected as non-responsive. There are contentions of a contract by acceptance of the bid offer, however the bid offer was defective and not susceptible of acceptance. Admittedly, this conclusion seems harsh because in circumstances of this sort, when there are two breaches of statutory responsibility, one breach could be intentional and the other an oversight. See e.g. Broadmoor, 04-0211, 04-0212 at pp. 19-20, 867 So.2d at 663. Had the State rejected the bid up front, however, there would have been no delay in awarding the contract to the lowest responsible bidder. The first and second assignments of error are without merit.

The State argues in its final assignment of error that the trial court erred in dismissing its suit without addressing the tort actions. The State contends, citing Airline Const. Co., Inc. v. Ascension Parish School Bd., 568 So.2d 1029, 1033 (La.1990), that the Louisiana Supreme Court has implied that tort claims can be allowed in limited circumstances. The State argues that the court purposefully declined to rule on that issue, but it should be considered now.

We decline to rule, however, on whether under the facts before us that tort claims are actionable here. The bid should have been rejected by the State without | (¡consideration because it was non-responsive. Thus, the alleged tort claims should never have arisen. The LPWA is sui gen-eris and provides the exclusive remedies available to parties in public construction work. State of Louisiana through the Div. of Admin. v. McInnis Bros. Const., 97-0742, p. 9 (La.10/21/97), 701 So.2d 937, 944. While circumstances may exist where tort claims might be actionable, under the facts before us, the intentional and negligent misrepresentation claims that the State makes against these defendants are adequately dealt with under the LPWA. This assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the trial court judgment granting the exceptions of no cause of action filed by Infinity Surety Agency, LLC and Benetech, LLC, Benetech, LLC and JRDKS Construction, LLC, a Joint Venture, and dismissing the claims of the State of Louisiana, Division of Administration, Office of Planning and Control. The costs of this appeal in the amount of $1,545.17 are assessed against the State of Louisiana, Division of Administration, Office of Planning and Control.

AFFIRMED.

KUHN, J., concurs.

PETTIGREW, J., concurs.

      . A second judgment was signed asserting that plaintiff did not amend its petition within the allotted fifteen days and therefore, the matter was dismissed with prejudice. This court allowed the record to be supplemented with the judgment of dismissal.

      . The State argues that it has no means to determine if the surety is written by an authorized company. La. R.S. 38:2218 C. however, mandates the sources to determine whether a surety company is authorized. The State has made no showing that it was unable to check these sources before it awarded the contract.


author: PIERCE, Justice,

text:
    Shelia REGAN v. SOUTH CENTRAL REGIONAL MEDICAL CENTER.
    No. 2009-CA-00268-SCT.
    Supreme Court of Mississippi.
    Aug. 5, 2010.

      Norman William Pauli, Jr., Hattiesburg, attorney for appellant.
    Richard 0. Burson, Laurel, Peeler Gray-son Lacey, Jr., attorneys for appellee.
   ON MOTION FOR REHEARING

PIERCE, Justice,

for the Court:

¶ 1. The motion for rehearing is denied. The previous opinions are withdrawn and this opinion is substituted therefor.

¶ 2. This appeal arises from a medical-negligence action arising out of the care and treatment of Shelia Regan at South Central Regional Medical Center (“the Hospital”) on or about December 5, 2003. The trial court granted the Hospital’s Motion for Summary Judgment and dismissed the suit on November 27, 2007, due to Regan’s failure to attach a certificate of expert consultation with her complaint. The trial court’s decision was based on this Court’s decision in Walker v. Whitfield Nursing Center, Inc., 931 So.2d 583 (Miss.2006). Less than one year after the trial court’s decision, this Court overturned Walker in Wimley v. Reid, 991 So.2d 135 (Miss.2008). On October 1, 2008, Regan filed a motion under Mississippi Rule of Civil Procedure Rule 60(b) to set aside the trial court’s order on October 1, 2008. It was denied, and Regan now appeals the trial court’s decision.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. Regan filed her complaint styled Shelia Regan v. South Central Regional Medical Center, Cause No. 2005-48-CV3 (“Regan I ”), on or about March 10, 2005. She failed to attach a certificate of expert consultation to the complaint, which is a requirement under Mississippi Code Section 11-1-58. See Miss.Code Ann. § 11 — 1— 58 (Supp.2010). The Hospital filed a Motion to Dismiss on July 20, 2005, citing Regan’s noneompliance with Section 11-1-58. Regan subsequently filed the Certificate of Consultation on July 21, 2005.

¶ 4. On November 7, 2005, the trial court denied the Hospital’s Motion to Dismiss, finding that Regan’s attorney had consulted with a physician five days prior to filing the Complaint. On June 8, 2006, this Court handed down its decision in Walker v. Whitfield Nursing Center, Inc., 931 So.2d 583 (Miss.2006) (holding that failure to comply with the notice prerequisites of Mississippi Code Section 11-1-58 results in a failure to state a claim upon which relief can be granted), overruled by Wimley v. Reid, 991 So.2d 135 (Miss.2008). On September 21, 2006, the Hospital filed a Motion for Summary Judgment. The Hospital argued that, under Walker, Regan’s failure to comply with Section 11 — 1— 58 resulted in an incomplete complaint, and she therefore had failed to state a claim upon which relief could be granted.

¶ 5. Regan filed a Motion For Leave to File Amended Complaint on October 23, 2007. The trial court entered an Order Denying Plaintiffs Motion For Leave to File Amended Complaint on November 27, 2007. On that same day, the trial court also entered its Order Granting Summary Judgment and Judgment of Dismissal in Regan I based on this Court’s decision in Walker and Regan’s failure to comply with Mississippi Code Section 11-1-58. See Miss.Code Ann. § 11-1-58 (Supp.2010).

¶ 6. The following day, November 28, 2007, Regan filed a second complaint styled Shelia Regan v. South Central Regional Medical Center, Cause No. 2007-248-CV11 (“Regan II”). Regan’s complaint in Regan II was substantially similar to her complaint in Regan I, but it included a certificate of expert consultation. On December 6, 2007, Regan filed a Rule 59(e) Motion for Reconsideration or To Amend regarding the summary judgment entered in Regan I. See Miss. R. Civ. P. 59(e). The Hospital filed its Answer and Rule 12(b)(6) Motion to Dismiss Re-gan II on the grounds that the statute of limitations had run and that the principles of priority jurisdiction prohibited Regan from simultaneously pursuing two identical actions against the Hospital. See Miss. R. Civ. P. 12(b)(6). The trial court entered an Order Denying Regan’s Rule 59(e) motion in Regan I on April 2, 2008. This order started the tolling of Regan’s thirty-day period to appeal the trial court’s dismissal of Regan I. On April 3, 2008, Regan voluntarily dismissed her complaint in Re-gan II, but then immediately filed a third complaint against the Hospital styled Shelia Regan v. South Central Regional Medical Center, Cause No. 2008-873-CV4 (“Regan III”).

¶ 7. Three weeks later, on April 22, 2008, Regan filed a Rule 60 Motion to Clarify Judgment in Regan I, stating “since Plaintiff is considering commencing an appeal, there exists a real need for Plaintiff to have this Motion to Clarify heard on an emergency or expedited bases [sic].” See Miss. R. Civ. P. 60. The trial court entered its Order Clarifying Judgment in Regan I on May 1, 2008, stating that it was dismissed “without prejudice.” Regan did not file an appeal of Regan I, but instead continued to pursue her case in Regan III.

¶ 8. On May 22, 2008, the Hospital filed a Rule 12(b)(6) Motion to Dismiss in Re-gan III on the ground that Regan’s claims were barred by the expiration of the statute of limitations. See Miss. R. Civ. P. 12(b)(6). The trial court entered an Order Granting the Hospital’s Motion to Dismiss in Regan III on September 10, 2008. See Miss. R. Civ. P. 59(e). Regan filed a Rule 59(e) Motion to Amend Order and Judgment of Dismissal in Regan III on September 19, 2008. According to the record before this Court, that motion has been stayed pending this Court’s decision in the present Regan I matter.

¶ 9. On September 12, 2008, this Court handed down its decision in Wimley v. Reid, 991 So.2d 135 (Miss.2008). On October 1, 2008, Regan filed a Rule 60(b) Motion to Set Aside the Order Granting Summary Judgment and Judgment of Dismissal in Regan I. See Miss. R. Civ. P. 60(b). In that motion, Regan argued that the Wimley decision entitled her to relief under Rule 60(b). After a hearing on the matter, the trial court entered an order denying Regan’s Rule 60(b) Motion on December 15, 2008. Regan then promptly filed a Rule 59(e) Motion For Reconsideration on December 24, 2008. See Miss. R. Civ. P. 59(e). On January 21, 2009, the trial court entered on order denying Re-gan’s Motion for Reconsideration in Re-gan I. Regan filed the present Notice of Appeal on February 17, 2009.

ANALYSIS

¶ 10. Regan argues on appeal that the trial court erred in denying her relief under Rule 60(b)(4), (5) and (6). Motions that seek “relief under Rule 60(b) are generally addressed to the sound discretion of the trial court and appellate review is limited to whether that discretion has been abused.” Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984) (citing Clarke v. Burkle, 570 F.2d 824 (8th Cir.1978)). Further, “when ruling on such motions a balance must be struck between granting a litigant a hearing on the merits with the need and desire to achieve finality in litigation.” Id. (citing House v. Sec’y of Health and Human Servs., 688 F.2d 7 (2nd Cir.1982)).

I. Whether Regan May Argue for the First Time on Appeal That She Is Entitled to Relief under Rule 60(b)(4) When She Did Not Raise the Provision at the Trial Court Level.

¶ 11. Regan claims the trial court erred in failing to grant her relief under Rule 60(b)(4). However, Regan failed to argue that she was entitled to relief under subsection (4) at the trial court level, and is now precluded from raising it for the first time on appeal. This Court has stated previously that it “need not address issues raised for the first time on appeal.” Goode v. Village of Woodgreen Homeowners Assoc., 662 So.2d 1064, 1076 (Miss.1995) (citing R & S Dev., Inc. v. Wilson, 534 So.2d 1008, 1012 (Miss.1988)).

¶ 12. At the trial-court level, Regan filed a Rule 60(b) motion. In her motion, she did not list any particular subsection. However, the motion referred to the overruled Walker decision upon which the Order Granting Summary Judgment was based. Walker v. Whitfield Nursing Center, Inc., 931 So.2d 583 (Miss.2006). In her Reply In Support of Plaintiffs Rule 60(b) Motion, Regan argued that there is a showing of “extraordinary and compelling” circumstances and then specifically stated Rule 60(b)(6) “stands as a ‘grand reservoir’ of equitable power to do justice.” Regan did not mention subsection (4) in any of the pleadings regarding her Rule 60(b) Motion to Reconsider, nor did she make any arguments regarding subsection (4) at the motions hearing. Furthermore, she did not argue in the pleading that the trial court’s judgment was void.

¶ 13. The first time Regan argued based on Rule 60(b)(4) was in her appellate brief. The trial court was never afforded the opportunity to hear these issues nor to make a ruling concerning subsection (4). Therefore, this issue is not properly before this Court.

II. Whether Regan Can Seek Relief under Rule 60(b)(5).

¶ 14. Although Regan never specifically argued Rule 60(b)(5) in her Rule 60(b) Motion, she did argue that, because Wimley overruléd Walker, the trial court should enter an order amending or setting aside its prior Order Granting Summary Judgment and Judgment of Dismissal. The Rule reads as follows:

(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: ...
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable.

Miss. R. Civ. P. 60(b)(5).

¶ 15. Mississippi Rule of Civil Procedure 60(b) is nearly identical to Federal Rule of Civil Procedure 60(b), with only a slight difference in the time limitation within which a Rule 60(b) motion must be filed. When state and federal rules are similar, this Court has said “that we will consider authoritative federal constructions when determining what our construction of our rule ought to be.” Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984) (citing Brown v. Credit Center, Inc., 444 So.2d 358, 364 n. 1 (Miss.1983)). The Fifth Circuit has stated in Bailey v. Ryan Stevedoring Company, Inc., 894 F.2d 157, 160 (5th Cir.1990), that “while 60(b)(5) authorizes relief when a judgment upon which it is based has been reversed or otherwise vacated, it does not authorize relief from a judgment on the ground that the law applied by the court in making its adjudication has been subsequently overruled or declared erroneous in another and unrelated proceeding.” Therefore, finding the Fifth Circuit’s analysis persuasive in Bailey, we reiterate that, under the current facts, Rule 60(b)(5) is not a mechanism by which Regan can be granted relief.

III. Regan’s Rule 60(b)(6) Motion to Set Aside Order Granting Summary Judgment and Judgment of Dismissal

¶ 16. Regan contends that the Court should find sufficient reasons to justify relief through Rule 60(b)(6)’s catch-all provision. Mississippi Rule of Civil Procedure 60(b)(6) states:

(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: ...
(6) any other reason justifying relief from judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken.

Miss. R. Civ. P. 60(b). In particular, Re-gan claims that there are “extraordinary and compelling circumstances” that entitle her to post-judgment relief under Rule 60(b)(6), namely the change in applicable law pursuant to Wimley v. Reid, 991 So.2d 135 (Miss.2008). This Court has held that “relief under Rule 60(b)(6) ‘is reserved for exceptional and compelling circumstances.’ ” Moore v. Jacobs, 752 So.2d 1013, 1017 (Miss.1999) (citing Bryant, Inc. v. Walters, 493 So.2d 933, 939 (Miss.1986)).

¶ 17. As previously stated, this Court considers federal interpretation to be persuasive in construing our rules. In Community Dental Services v. Tani, 282 F.3d 1164 (9th Cir.2002) (quoting Martella v. Marine Cooks & Stewards Union, 448 F.2d 729, 730 (9th Cir.1971)), the Ninth Circuit held that, for a party to be granted relief under Rule 60(b)(6), he must demonstrate “extraordinary circumstances which prevented or rendered him unable to prosecute [his case].” Further, the “party must demonstrate both injury and circumstances beyond his control that prevented him from proceeding with the prosecution or defense of the action in a proper fashion.” Id. (citing United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir.1993)).

¶ 18. The Fifth Circuit has held that “a change in decision law after entry of judgment does not constitute exceptional circumstances and is not alone grounds for relief from a final judgment.” Bailey v. Ryan Stevedoring Co., Inc., 894 F.2d 157, 160 (5th Cir.1990) (citing McKnight v. United States Steel Corp., 726 F.2d 333, 336 (7th Cir.1984); Title v. United States, 263 F.2d 28, 31 (9th Cir.1959)).

¶ 19. Regan relies on Overbee v. Van Waters & Rogers, 765 F.2d 578 (6th Cir.1985) in support of her argument that a change in the law constitutes an “extraordinary or compelling circumstance.” While the Sixth Circuit Court of Appeals found the facts in Overbee to fit the definition of “extraordinary and compelling,” those facts are distinguishable from the facts in this case. In Overbee, the Supreme Court of Ohio changed its position on the applicable law within one year. Id. at 580. In this case, Wimley was handed down more than two years after Walker was decided. Furthermore, Overbee was still an ongoing case when the change in law occurred. The Overbee case had been remanded on another issue, and was still pending in the trial court when the Rule 60(b) motion was filed. In Regan I, the judge had entered his final order, and no appeal was pending.

¶ 20. Regan also relies on a federal district-court case, Heirs-at-Law and Beneficiaries of Gilbert v. Dresser Industries, Inc., 158 F.R.D. 89 (N.D.Miss.1993), in support of her argument that the change in law should support her Rule 60(b)(6) motion. Gilbert also is distinguishable from the current case. In Gilbert, the trial coui’t compared the facts in the case to “ ‘a postjudgment change in the law having retroactive application,’ a situation other courts have recognized as ‘extraordinary’ enough to warrant relief under the rule.” Id. at 93 (citing Matarese v. LeFevre, 801 F.2d 98 (2d Cir.1986), cert. denied, 480 U.S. 908, 107 S.Ct. 1353, 94 L.Ed.2d 523 (1987)). However, the Ma-tarese case, upon which the Gilbert court relied, stated that “a law having retroactive application may, in special circumstances, constitute an extraordinary circumstance.” Matarese, 801 F.2d at 106. Further, this Court, in Thompson v. City of Vicksburg, 813 So.2d 717 (Miss.2002), held that “newly enunciated rules of law are applied retroactively to cases that are pending trial or that are on appeal, and not final at the time of the enunciation.” Id. at 721. In the current case, the change in law was not enunciated until after the Regan I judgment was final. Therefore, the change in law is not retroactively applied in the present matter, and Gilbert is inapplicable.

¶ 21. It is clear from the abundant caselaw presented that a change in the law does not meet the definition of “extraordinary or compelling circumstance.” Therefore, the trial court did not abuse its discretion when it denied Regan’s Rule 60(b)(6) Motion to Set Aside Order Granting Summary Judgment and Judgment of Dismissal.

CONCLUSION

¶ 22. On appeal, Regan argues that the trial court erred in failing to grant her relief under Rule 60(b)(4), (5), and (6). Due to her failure to raise Rule 60(b)(4) at the trial-court level, she is procedurally barred from arguing it for the first time on appeal. Regan’s Rule 60(b)(5) argument also is unsuccessful. Federal caselaw, which is persuasive, indicates that relief cannot be granted under subsection (5) when the law upon which the judgment at issue is based is subsequently overturned or declared erroneous in an unrelated proceeding. Finally, Regan argues that under Rule 60(b)(6), this Court’s opinion in Wimley v. Reid presented an extraordinary and compelling circumstance. After review of the record and relevant caselaw, we find that a postjudgment change in law in an unrelated case does not meet the definition of “extraordinary and compelling circumstance” where the judgment at issue has become final. The trial court is therefore affirmed.

¶ 23. AFFIRMED.

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

Appendix A

Procedural Timeline

March 10, 2005 Regan filed her Complaint in Regan I, failing to attach a Certificate of Expert Consultation.

July 20, 2005 Hospital filed Answer and Motion to Dismiss for failure to comply with Mississippi Code Section 11-1-58.

July 22, 2005 Regan filed the missing Certificate of Consultation.

November 7,2005 The trial court denied the Hospital’s Motion to Dismiss.

June 8, 2006 This Court handed down Walker v. Whitñeld Nursing Center, Inc., 931 So.2d 583 (Miss.2006) (holding that failure to comply with the notice requirements of Mississippi Code Section 11-1-58 results in a failure to state a claim upon which relief can be granted).

September 21, 2006 Hospital filed a Motion for Summary Judgment pursuant to Walker.

October 23,2007 Regan filed a Motion for Leave to File an Amended Complaint.

November 27, 2007 The trial court denied Regan’s motion to amend her complaint and entered an Order Granting Summary Judgment and Judgment of Dismissal.

November 28, 2007 Regan filed her Complaint in Regan II, which included the Certificate of Expert Consultation.

December 6, 2007 Regan filed a Rule 59(e) Motion for Reconsideration in Regan I.

April 2, 2008 The trial court entered an order denying the Rule 59(e) motion in Regan I.

April 3,2008 Regan voluntarily dismissed Regan II because it was “filed prematurely before the aforementioned [Rule 59 Motion for Reconsideration was] ruled on.” Regan immediately filed her Complaint in Regan III.

April 22, 2008 Regan filed Rule 60 Motion to Clarify Judgment in Regan I.

May 1, 2008 Trial court entered an order clarifying the judgment in Regan I, stating that it was dismissed “without prejudice.”

May 2, 2008 Last day for Regan to appeal the dismissal of Regan I.

May 22, 2008 Hospital filed a Rulel2(b)(6) Motion to Dismiss in Regan III, claiming Regan’s claims were barred by the statute of limitations.

September 10, 2008 The trial court entered an Order Granting the Hospital’s Motion to Dismiss in Regan III based upon the statute of limitations.

September 18, 2008 This Court handed down Wimley v. Reid, 991 So.2d 135 (Miss.2008), which overrules Walker and its progeny.

September 19, 2008 Regan filed a Rule 59(e) Motion to Reconsider in Regan III, which is presently stayed in the trial court pending this Court’s decision in the present matter.

October 1,2008 Regan filed Rule 60 Motion to Set Aside the Order Granting Summary Judgment and Judgment of Dismissal in Regan I.

December 15, 2008 The trial court entered an Order Denying Regan’s Rule 60(b) Motion in Regan I.

December 24, 2008 Regan filed a Rule 59(e) Motion for Reconsideration in Regan I.

January 21, 2009 The trial court entered an Order Denying Regan’s Motion for Reconsideration in Regan I.

February 17,2009 Regan filed the present Notice of Appeal for Regan I.

      . See Appendix A for an timeline of the procedural history.

      . Rule 60(b)(4) states:
      (b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons:

      (4) the judgment is void ...
      Miss. R. Civ. P. 60(b)(4).


author: CHANDLER, Justice,

text:
    Marvin Terrell KING v. STATE of Mississippi.
    No. 2008-KA-01509-SCT.
    Supreme Court of Mississippi.
    Aug. 26, 2010.
    Rehearing Denied Dec. 2, 2010.

      Office of Indigent Appeals by Phillip Broadhead, Oxford, Leslie S. Lee, Jackson, Howard Q. Davis, Jr., attorneys for appellant.
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
    Before GRAVES, P.J., DICKINSON and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. Marvin Terrell King was convicted of the murder of Woquin Robinson, two counts of aggravated assault, and conspiracy. The Circuit Court of Washington County sentenced King to life in the custody of the Mississippi Department of Corrections for murder, fifteen years for each aggravated-assault conviction, and twenty years for conspiracy, with all sentences to run concurrently. In this appeal, King challenges the sufficiency of the evidence of murder and the weight of the evidence. He also contends that forensic pathologist Dr. Stephen Hayne testified outside his area of expertise, and that this constituted plain error. Because the evidence was sufficient to permit a rational jury to find all the elements of murder, the verdict'was not against the overwhelming weight of the evidence, and the admission of Dr. Hayne’s testimony was not plain error, this Court affirms King’s convictions and sentences.

FACTS

¶ 2. At approximately 2:00 a.m. on May 9, 2004, the L & L Club in Leland, Mississippi, closed, discharging its patrons into the night. When Byron Jones left the L & L Club, he called Marvin King and expressed his anger at some other club patrons. King was at his home with Ja’Quarius Wright. Wright testified that, after speaking with Jones, King produced an SKS assault rifle and asked Wright if he wanted to check into the situation. Wright and King, with Wright driving, left in Wright’s ear, picked up Jones, and drove to the L & L Club. On the way, King passed Jones a .38 caliber handgun. According to Wright, Jones said he was angry and he was tired of people messing with him.

¶ 3. The three waited at the club and then drove to a nearby Double Quick convenience store. There they saw Robinson, along with Nacardis Williams, Derantez Blue, and Jimmy Lowe, whom Robinson had just picked up from the L & L Club. According to Jones, King said “Let’s get him.” The three parked at a carwash near the Double Quick and observed Robinson, Williams, Blue, and Lowe get into Robinson’s car. Robinson was driving; Williams sat in the front passenger seat; Lowe sat in the back seat behind Robinson; and Blue sat next to Lowe.

¶ 4. Wright, King, and Jones followed Robinson’s car. Jones surmised that Robinson planned to drop off Williams at his girlfriend’s house on Lewis Street. Jones testified that he and King agreed that, when Robinson dropped off Williams, King would shoot at the car, and Jones would shoot at Williams. Wright heard their plan. Wright dropped off King and Jones at the street corner. According to both Jones and Wright, when they exited the car, King had the rifle and Jones had the .38. Jones testified that he and King hid in the bushes and waited for Robinson’s car to stop. When Williams exited the car, they opened fire. Jones testified that he fired two shots in Williams’s direction, but with the intent to scare Williams, not to shoot him. Jones testified that he saw King rapid-fire the rifle at the car. Jones ran away and heard the firing continue. A bullet traveled into the car, through the driver’s side headrest, and struck and killed Robinson. Blue and Lowe received minor bullet wounds.

¶ 5. After the shooting, Jones and King met nearby. Jones called Wright, who picked them up. King instructed Wright to drive to the home of Charles Thomas. Once there, King called Thomas, who came outside. King handed the rifle to Thomas and asked him to hold the rifle for him. Then, King exited the car. Wright dropped off Jones several blocks away. Later, Thomas turned the rifle over to the police. Jones testified that he gave the .38 handgun to his brother Derrick, and that Derrick later traded it for another firearm.

¶ 6. King, Wright, and Jones were indicted for murder, two counts of aggravated assault, and conspiracy. Jones testified that the State had offered him a plea deal of twenty years for manslaughter. He testified that his testimony was the truth and that he had not been promised a fighter sentence in exchange for it. Wright testified that he had not pleaded guilty; there had been no plea offer from the State; and his testimony was motivated by a desire to do the right thing. Both Jones and Wright testified that they had lied in their prior statements to the police.

¶ 7. Robinson’s car had been riddled with bullet holes, and the police recovered seventeen shell casings at the scene. Starks Hathcock, of the Mississippi Crime Laboratory, matched sixteen of these shell casings to the rifle. He testified that the projectile that killed Robinson could not positively be included or excluded as having been fired by the rifle. But Dr. Hayne testified that, given the distance of the shooters in relation to the car, the fact that the fatal bullet had traveled through the car and the headrest, and the condition of Robinson’s wound, the murder weapon was most probably a high-velocity weapon such as a rifle, not a .38 handgun.

¶ 8. The defense attempted to create reasonable doubt by highlighting inconsistencies in the testimony, especially the fact that Williams had identified Jones’s brother, Derrick Jones, as the second shooter. Williams gave a statement to the police identifying the “Jones Boys” as the shooters; he stated that he was sure that Jones and Derrick were the shooters. However, Williams stated that he had not seen the shooters until after the gunfire had begun. Lowe testified that Derrick had been with Jones, King, and Wright in Wright’s car when it had circled the Double Quick. Lieutenant Juan Overton testified that he had seen Derrick and Jones leave the L & L Club separately at approximately 2:00 a.m. When Jones left, he had burst angrily out of the club and cursed. Shortly thereafter, Derrick had left with his girlfriend and others. Lieutenant Overton testified that, when he investigated Derrick’s whereabouts at the time of the shooting, he discovered that Derrick had checked into a motel in Greenville with his girlfriend shortly after 2:00. a.m. The motel clerk identified Derrick from a photo lineup, and Derrick had filled out a card upon check-in. Lieutenant Overton testified that, based on this information, Derrick was excluded as a suspect.

¶ 9. A cautionary jury instruction was given concerning the accomplice testimony of Jones and Wright. The jury found King guilty of the murder of Robinson, the aggravated assault of Lowe and Blue, and conspiracy.

DISCUSSION

I. WHETHER THE EVIDENCE SUPPORTING THE MURDER CONVICTION WAS SUFFICIENT TO SUPPORT THE VERDICT.

¶ 10. King filed a motion for a judgment notwithstanding the verdict (JNOV), which was denied by the trial court. King argues that the State’s evidence consisted of accomplice testimony from Jones and Wright that was substantially impeached on cross-examination, and that the evidence evinced an incomplete police investigation. Therefore, he argues, the evidence was not sufficient to support the verdict of guilty of murder. In King’s brief, he limits his sufficiency arguments to the murder conviction. Accordingly, this Court confines the sufficiency analysis to the evidence supporting King’s murder conviction.

¶ 11. In reviewing the sufficiency of the evidence, the relevant question is whether, considering the evidence in the light most favorable to the verdict, a rational jury could have found every essential element of the offense beyond a reasonable doubt. Bush v. State, 895 So.2d 886, 843 (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We will affirm if the evidence is of “such quality and weight that, ‘having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense.’ ” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). We will reverse and render the conviction if the facts and inferences, although considered in the light most favorable to the verdict, “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty.” Id.

¶ 12. In order to establish King’s guilt of murder, the State was required to prove beyond a reasonable doubt that King killed Robinson without the authority of law and with deliberate design to effect his death. See Miss.Code Ann. § 97-3-19 (Rev. 2006). In addition to a murder instruction, the trial court also gave jury instructions on accomplice liability that allowed the jury to find King guilty of murder if it found that another person who acted in concert with King killed Robinson. Mississippi Code Section 97-1-3 provides: “Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not.” Miss. Code Ann. § 97-1-3 (Rev. 2006). This Court has defined aiding and abetting as “the offense committed by those persons who, although not the direct perpetrators of a crime, are yet present at its commission, doing some act to render aid to the actual perpetrator.” Smith v. State, 237 Miss. 498, 506, 115 So.2d 318, 322 (1959) (quoting Wynn v. State, 63 Miss. 260 (1885)). The State must prove that the defendant was “present, consenting, aiding, and abetting such person in the commission of the crime charged.” Brooks v. State, 763 So.2d 859, 861 (Miss.2000) (quoting Van Buren v. State, 498 So.2d 1224, 1227 (Miss.1986) (overruled on other grounds)). “Aiding and abetting in the commission of a crime involves a community of unlawful purpose at the time the act was committed.” Shedd v. State, 228 Miss. 381, 386, 87 So.2d 898, 900 (1956).

¶ 13. King points to certain discrepancies brought out during the testimony of accomplices Jones and Wright. The following are the most glaring discrepancies identified by King. Both Jones and Wright gave prior statements to the police that were inconsistent with their trial testimony. In Jones’s initial statement, he denied his own involvement in the shooting. During Jones’s testimony, he initially said that King had made the comment that he was “tired of these weak-a — n-s and this b-1.” But when pressed, Jones admitted that he, not King, had made that statement. Wright gave two statements to the police that conflicted with his trial testimony. In the first statement, Wright said he and King had been driving around that night and they had not seen Jones at all. In the second statement, he said King had no weapon when he exited the car at the scene of the shooting, and that neither Jones nor King had weapons when he picked them up. Also, Wright previously had claimed that Jones had admitted having fired shots at the car, while at trial, Wright testified that Jones had said he had hidden in the bushes during the shooting. King also points to discrepancies in the testimony concerning who passed the rifle out of the car window to Thomas. On direct examination, Wright said King had passed Thomas the rifle, but on cross-examination admitted he had told police that both King and Jones had passed Thomas the rifle. King argues that the testimony established a motive for Jones, not King. King asserts that, from Jones’s and Wright’s testimony, it was impossible for the jury to determine what happened the night of the shooting.

¶ 14. The Court finds that, viewing the evidence and all reasonable inferences to be drawn from the evidence in the light most favorable to the verdict, the evidence was sufficient to enable a rational jury to find beyond a reasonable doubt that King committed all the elements of murder. Generally, the resolution of conflicts in the witness testimony is a matter for the jury, not the court. Christmas v. State, 10 So.3d 413, 423 (Miss.2009). Concerning the sufficiency of the evidence when a conviction rests upon accomplice testimony, the uncorroborated testimony of an accomplice may be sufficient to convict the accused. Williams v. State, 32 So.3d 486, 490 (Miss.2010). But if the accomplice testimony is uncorroborated and is unreasonable, self-contradictory, or substantially impeached, then accomplice testimony is insufficient, and the trial court must direct a verdict of not guilty. Id. (quoting Ballenger v. State, 667 So.2d 1242, 1253 (Miss.1995)).

¶ 15. The Court finds that the testimony of accomplices Jones and Wright was not unreasonable, self-contradictory, or substantially impeached. Thomas testified that he was with Wright and King at King’s house that night. Wright testified that, after getting a call from Jones, King got a rifle and they drove to pick up Jones. Thomas testified that King had shown him this rifle months before. Jones testified he was picked up by King and Wright. Lowe testified that he saw King in Wright’s car as it circled the Double Quick. Jones and Wright testified that King and Jones had formulated a plan in which King would shoot at the car and Jones would shoot at Williams. Jones testified that he saw King fire numerous shots at the car, and heard more shots fired as he ran away. Thomas, who cooperated with the police and was not an accessory before the fact, testified that, after the shooting, King had arrived in a car with Wright and Jones, had given him the rifle, and had asked him to hold it for him. This testimony corroborated that of Wright and Jones.

¶ 16. King also asserts that the State’s evidence rested upon an incomplete police investigation into the possibility that Derrick was the second shooter. He points out that Sergeant Byron Vaughn testified that his conversation with Williams led him to suspect King and Jones. On cross-examination, Sergeant Vaughn admitted that Williams had identified Derrick as a shooter, but that he had been excluded on the basis of alibi. The police records included no information about the investigation of Derrick’s alibi. King argues that the investigation was incomplete and that the evidence established Derrick should not have been excluded as a suspect because Williams had identified him as the second shooter, and the exact time that Derrick had checked into the hotel had not been established.

¶ 17. Although Williams stated that he was sure Derrick was the second shooter, the police determined that Derrick had checked into a hotel in Greenville at approximately the same time as the shooting. The determination that Derrick was not the second shooter additionally was supported by: (1) the motel check-in card, (2) the motel clerk’s identification of Derrick, (3) the fact that Lieutenant Overton had seen Derrick leave the L & L Club separately from Jones, (4) the inference that Williams may not have seen clearly the second shooter during the gunfire, and (5) the evidence that King was the second shooter.

¶ 18. The evidence and all reasonable inferences to be drawn therefrom, taken in the light most favorable to the verdict, were sufficient to enable the jury to find King guilty of the essential elements of murder. Moreover, even if the jury believed that Jones, not King, fired the fatal bullet, the above evidence was sufficient to find King guilty as a principal under an accomplice-liability theory. This is because the evidence, taken in the light most favorable to the verdict, sufficiently established that King was “present, consenting, aiding, and abetting [Jones] in the commission of the crime charged,” and that King and Jones had shared a community of unlawful purpose. Brooks, 763 So.2d at 861 (Miss.2000) (quoting Van Buren, 498 So.2d at 1227); Shedd, 228 Miss. at 386, 87 So.2d at 900. This issue is without merit.

II. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 19. A challenge to the weight of the evidence is raised in a motion for a new trial, and is addressed to the trial court’s discretion. Bush, 895 So.2d at 844. On review, this Court will disturb a verdict only when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Id. Unlike a reversal based on the sufficiency of the evidence, a reversal based on the weight of the evidence does not indicate that acquittal was the only proper verdict. “Rather, as the ‘thirteenth juror,’ the court simply disagrees with the jury’s resolution of the conflicting testimony.” Id. Nonetheless, the power to grant a new trial should be exercised only where the evidence preponderates heavily against the verdict. Id.

¶20. King argues that inconsistencies in the testimony, the evidence of inadequate police investigation, and the fact that Williams had identified Derrick as the second shooter rendered the verdict against the overwhelming weight of the evidence. King argues that Jones was not credible because he had a plea recommendation from the State of twenty years for manslaughter, which motivated him to lie to implicate King. King also points out that Derrick was Jones’s brother and Wright’s cousin, which King posits, shows that Jones and Wright had a motive for framing King to exculpate Derrick.

¶ 21. We find that the evidence did not preponderate so heavily against the verdict that the failure to grant a new trial would sanction an unconscionable injustice. The basic evidence supporting the verdict was that King and Jones had entered into a conspiracy to shoot at Robinson’s car and its occupants, that they were armed with guns when Wright dropped them off, that Jones saw and heard King shoot at the car, that King gave the rifle to Thomas, and that Robinson was killed and two occupants injured in the shooting. It is true that there were some inconsistencies in the testimony and that the accomplices’ trial testimony varied from their prior statements to the police. However, the testimony of Jones and Wright was identical in material particulars. The nature of Jones’s plea offer and the familial relationships were explored thoroughly at trial. Nothing about this evidence so erodes the credibility of the accomplice testimony as to compel this Court’s reversal of the jury verdict. The verdict of guilty of murder, conspiracy, and two counts of aggravated assault was not against the overwhelming weight of the evidence.

III. WHETHER DR. HAYNE’S OPINION THAT A RIFLE WAS THE MURDER WEAPON EXCEEDED THE SCOPE OF HIS EXPERTISE AND CONSTITUTED PLAIN ERROR.

¶ 22. Dr. Hayne was qualified to render expert testimony in the area of forensic pathology. Accordingly, he testified about his autopsy findings as to the cause of death and the manner of death. Dr. Hayne testified that Robinson was killed by a bullet that struck him in the back of the head. The prosecution also elicited testimony from Dr. Hayne concerning the probable velocity of the fatal bullet, given the characteristics of the wound, the distance of the shooters, and the opinion that, because the bullet had traveled through the car and through the headrest before striking Robinson, the bullet was fired from a high-velocity weapon such as an SKS rifle. Dr. Hayne also gave the following detailed information about bullet velocity:

Q. Are you familiar with the, as far as projectiles or shots being fired from a .38 caliber handgun, as far as what manner or what speed they travel?
A. They travel, for lead ball ammunition, wide cutter ammunition, they would be traveling out of a .38 at about 750, 800 feet per second.
Q. Are you familiar with it as from an SKS?
A. Yes.
Q. What is that?
A. The velocity at the muzzle of an SKS would be approximately 2650 feet per second.
Q. How does that affect your determination?
A. Well, the velocities, counselor, correspond significantly to the amount of kinetic energy. As you increase the velocity, the amount of force goes up to the square. You multiply the velocity times the velocity.
The velocity becomes a critical issue in determining amount of force in a bullet when it strikes a target. If you increase the mass of the bullet by doubling it, it increases the kinetic energy by a factor of two. If you double the velocity, the speed of the bullet, it increases the force by a factor of four. So, you can see that velocity is more important than mass, the weight of the bullet.
Speed becomes a critical issue. The faster the bullet is going, the more the striking power, the more the kinetic energy, the more force that the bullet has. That’s why bullets are made with high velocity capability. Military rounds have high velocity weapons because of the injuries that they can inflict with them.
Q. So, Dr. Hayne, in your opinion, what type of weapon caused the injuries to Woquin Robinson?
A. Given the scenario you gave me, the distances, two intermediate targets, and the injuries observed, I would favor a long barreled weapon, a rifle weapon.

¶ 23. King argues that Dr. Hayne went beyond his expertise as a forensic pathologist by testifying in the field of weaponry and ballistics. “Counsel must object contemporaneously to inadmissible evidence in order to preserve the error for appeal.” Boyd v. State, 977 So.2d 329, 387 (Miss.2008). King admits that he did not object contemporaneously to Dr. Hayne’s testimony. He urges our consideration of his argument under the plain-error doctrine, which permits this Court to review an “obvious error which was not properly raised by the defendant on appeal, and which affects a defendant’s ‘fundamental, substantive right.’ ” Smith v. State, 986 So.2d 290 (Miss.2008). “It has been established that where fundamental rights are violated, procedural rules give way to prevent a miscarriage of justice.” Gray v. State, 549 So.2d 1316, 1321 (Miss.1989).

¶ 24. For his argument that the admission of Dr. Hayne’s testimony constituted plain error, he cites Edmonds v. State, 955 So.2d 787 (Miss.2007). In Edmonds, Dr. Hayne had testified that, from his examination of the murder victim, the fatal wound was consistent -with two people having held the gun when it was fired. Id. at 791. The Court found that this opinion was scientifically unfounded. Id. at 792. We stated:

While Dr. Hayne is qualified to proffer expert opinions in forensic pathology, a court should not give such an expert carte blanche to proffer any opinion he chooses. There was no showing that Dr. Hayne’s testimony was based, not on opinion or speculation, but rather on scientific methods and procedures. The State made no proffer of any scientific testing performed to support Dr. Hayne’s two-shooter theory. Therefore, the testimony pertaining to the two-shooter theory should not have been admitted under our standards.

Id. (citation omitted). This Court further found that Edmonds had been substantially prejudiced by the admission of the testimony. Id. This was because Dr. Hayne’s testimony had the imprimatur of scientific expertise and because it was the only evidence other than Edmonds’s contested confession that supported the State’s theory. Id. Edmonds had preserved the issue for appellate review. Id.

¶ 25. King also cites Wilson v. State, 21 So.3d 572, 588 (Miss.2009), for the proposition that this Court affords plain-error review to the improper admission of testimony by Dr. Hayne. King’s argument is misplaced, because that was not the holding of Wilson. Wilson argued that, based upon Edmonds, Dr. Hayne’s credibility in the area of forensic pathology and the reliability of his testimony was objectively questionable in every case, and also that its admission violated his due-process rights. Id. at 588. This Court held that the argument was procedurally barred for lack of an objection. Id. However, in the alternative to the procedural bar, this Court addressed Wilson’s arguments and found them to be without merit. Id. at 589. We found that Edmonds did not hold that Dr. Hayne was not qualified to testify as an expert witness in the area of forensic pathology. Id. In its analysis in Wilson, this Court did not invoke plain-error review.

¶ 26. This issue is procedurally barred for lack of an objection. Boyd, 977 So.2d at 337. But even if Dr. Hayne’s testimony exceeded the scope of his expertise in forensic pathology, its admission does not implicate plain-error review. Because Hathcock, the ballistics expert, was unable to match the bullet retrieved at the autopsy with the SKS rifle, Dr. Hayne’s testimony was the only evidence that purported to link the fatal bullet with the SKS rifle. But even without the testimony that the wound was consistent with having been fired by the SKS rifle, the evidence was sufficient to enable the jury to find King guilty of murder. Wright saw King exit the car with the rifle, and he saw Jones exit the car with the .38. Jones testified that King had fired the rifle at the car, and he had fired at Williams with the .38. From this evidence, it is reasonable to infer that the fatal bullet came from the SKS rifle fired by King. Even if the jury believed that the fatal bullet came from the .38 fired by Jones, the evidence sufficiently established King’s guilt as an aider and abetter. Therefore, plain-error review is not implicated by the admission of Dr. Hayne’s testimony.

CONCLUSION

¶ 27. The evidence was sufficient to support the murder conviction, and the verdict of guilt of murder, two counts of aggravated assault, and conspiracy was not against the overwhelming weight of the evidence. The admission of Dr. Hayne’s testimony did not constitute plain error. Therefore, we affirm King’s convictions and sentences.

¶ 28. COUNT I: CONVICTION OF CONSPIRACY AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED. COUNT II: CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED. COUNT III: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED. COUNT IV: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED. SENTENCES IN COUNTS I, II, III AND IV SHALL RUN CONCURRENTLY WITH EACH OTHER.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR, KITCHENS AND PIERCE, JJ., CONCUR.


author: CARLSON, Presiding Justice,

text:
    Jerry Lamar WHITLOCK v. STATE of Mississippi.
    No. 2009-KA-01323-SCT.
    Supreme Court of Mississippi.
    Sept. 16, 2010.
    Rehearing Denied Dec. 2, 2010.

      Office of Indigent Appeals by Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. Jerry Lamar Whitlock was convicted for the crime of attempted automobile burglary in the Circuit Court of Rankin County. Whitlock was sentenced to life without parole as a habitual offender under Mississippi Code Section 99-19-83. He appealed, alleging specific errors committed during the course of his trial. Finding Whitlock’s assignments of error to be without merit, we affirm the judgment of the Rankin County Circuit Court.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. On August 5, 2005, Dottie Smith went to BankPlus in Flowood to obtain coin change for operating her business over the weekend. As she exited the bank, Smith noticed that another vehicle was backed into the parking spot beside her vehicle. Smith testified that she “thought it was kind of strange because all the other parking places were empty and they were backed in there next to me.” Smith proceeded to her car, unlocked the doors by remote, and placed her change bags on the back seat. According to Smith, as she closed the back passenger door, she heard the driver’s door of the other vehicle open. Smith also found this strange. She locked all the doors of her vehicle with the remote.

¶ 3. Smith testified that as she shut the door, she looked up and saw a man standing there, looking as if he was going into the bank. They were between the two vehicles. According to Smith, before she had the chance to unlock her door to enter her vehicle, the man placed his hand on her rear passenger door handle and pulled it. While the man attempted to open her door, Smith ran to the back of the man’s vehicle. Realizing the door was locked, the man then yelled at her to unlock the door, and she replied “no.” Smith pushed the panic button on her remote which caused her car horn to blow. The man then got back into his car and sped away. Since Smith was standing behind the man’s vehicle, she was able to obtain his tag number. She immediately ran into the bank, grabbed a deposit slip, and wrote the tag number on it. As Smith was writing the tag number, she yelled that someone had just tried to rob her. She gave the deposit slip with the tag number written on it to a bank employee who called 911.

¶ 4. State Trooper Wayne Dearman was monitoring his radio systems at the time of the incident, and he received information that “[t]wo black males, attempted robbery at BankPlus.” He also received a vehicle description and the tag number. While Trooper Dearman was writing the information on a notepad, the vehicle that was described passed him, and he was able to see part of the license plate. Trooper Dearman then initiated a traffic stop, and the vehicle turned into a driveway, where he pulled behind it. The driver exited the vehicle, so Trooper Dearman ordered him to the ground. The passenger acted as if he was exiting the vehicle to also get on the ground; however, according to Trooper Dearman, the man kicked off his flip-flops and ran. When Dearman attempted to get his radio, the other suspect also fled. Trooper Dearman was able to identify the clothing of both suspects.

¶5. Officer Sentel Easterling of the Pearl Police Department heard Trooper Dearman on the radio requesting assistance, so he proceeded to the area. He observed a black male wearing the clothes Trooper Dearman had described attempting to gain entrance to a residence. Officer Easterling apprehended the man and handed him over to a Flowood police officer. The man was wearing a white tank top and dark colored shorts and was identified as Jerry Lamar Whitlock. Before being taken to the Flowood Police Department, Whitlock was taken to a mini storage facility where the complainant, Smith, positively identified him as the man who had attempted to break into her car.

¶ 6. After a trial in the Circuit Court of Rankin County, Judge Samac S. Richardson presiding, the jury found Whitlock guilty of attempted automobile burglary. Judge Richardson sentenced Whitlock to a term of life imprisonment without parole as a Section 99-19-83 habitual offender. Likewise, Judge Richardson denied Whit-lock’s Motion for Judgment Notwithstanding the Verdict, or in the Alternative, for a New Trial. Aggrieved, Whitlock appeals to us.

DISCUSSION

¶ 7. Whitlock presents three issues for this Court’s consideration: (1) whether the identification process was so impermissi-bly suggestive that Whitlock suffered irreparable misidentification; (2) whether Whitlock’s sentence of life imprisonment without parole as an habitual offender for attempted automobile burglary is disproportionate to the crime and constitutes cruel and unusual punishment; and (3) whether the trial court erred in denying Whitlock’s motion for a new trial because the verdict was against the overwhelming weight of the evidence. The issues are restated for the sake of today’s discussion.

I. WHETHER THE IDENTIFICATION PROCESS WAS SO IM-PERMISSIBLY SUGGESTIVE THAT WHITLOCK SUFFERED IRREPARABLE MISIDENTIFI-CATION.

¶ 8. “The standard of review for admission of evidence is abuse of discretion. However, when a question of law is raised, the applicable standard of review is de novo.” Hood v. State, 17 So.3d 548, 551 (Miss.2009) (citation omitted). This Court’s “standard of review for trial court decisions regarding pretrial identification is ‘whether or not substantial credible evidence supports the trial court’s findings that, considering the totality of the circumstances, in-court identification testimony was not impermissibly tainted.’” Outerbridge v. State, 947 So.2d 279, 282 (Miss.2006) (quoting Roche v. State, 913 So.2d 306, 310 (Miss.2005)).

¶ 9. Whitlock asserts that the identification procedures performed by the police department were unfairly suggestive, and thus, all identification stemming from the show-up procedure should have been inadmissible at trial, including Smith’s in-court identification of him before the jury. The United States Supreme Court has stated that “ ‘[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned,’ ” and this Court has “previously held that ‘pretrial identifications which are suggestive, without necessity for conducting them in such manner, are proscribed.’ ” Roche, 913 So.2d at 310-11 (citations omitted); see also York v. State, 413 So.2d 1372, 1383 (Miss.1982) (citations omitted) (“A showup in which the accused is brought by an officer to the eyewitness is likewise imper-missibly suggestive where there is no necessity for doing so.”). However, our inquiry does not end with the presence of an impermissibly suggestive identification. Id. at 311. “Such identification is admissible if, considering the totality of the circumstances surrounding the identification procedure, the identification did not give rise to a very substantial likelihood of mis-identification.” Id. (citing York, 413 So.2d at 1383 (quoting Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972))).

¶ 10. In Biggers, the United States Supreme Court laid out the factors to consider in determining “whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive”:

As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Biggers, 409 U.S. at 199, 93 S.Ct. 375.

¶ 11. Before addressing the merits of this issue, we pause to set out here additional information concerning the procedural history of this case. Whitlock was tried three times on this attempted automobile burglary charge. The first two trials resulted in mistrials, and in the third trial, Whitlock was found guilty by the jury. Judge William E. Chapman, III, presided over the first trial, and Judge Samac S. Richardson presided over the second and third trials. In each of the three trials, Whitlock attempted to have excluded from evidence the victim’s pretrial out-of-court identification of him shortly after the events which led to the grand-jury indictment.

¶ 12. Prior to the 'first trial, Judge Chapman conducted a pretrial suppression hearing concerning the. identification evidence. The victim, Smith, testified as to the events surrounding the crime, and her testimony at the suppression hearing was consistent with her later testimony at the trial. At the conclusion of the suppression hearing, Judge Chapman applied the Big-gers factors to the evidence before him and denied Whitlock’s motion to exclude evidence of the victim’s out-of-court identification of Whitlock shortly after the crime, and the victim’s in-court identification of him during the trial. On this point, Judge Chapman stated:

All right, yeah, I just wanted to refresh my recollection relative to these five factors. I mean it’s clear [Smith] had ample opportunity to view the accused at the time of the crime. And based on her testimony, I’m convinced she had a pretty high degree of attention exhibited. It seems to me that there was no description in the, it appears to be no description in the statement. I’ve not read it, but she didn’t point it out to you, but her testimony is she described to the law enforcement officer present. And I don’t think there’s any real dispute that her description of [Whitlock] to the law enforcement officer didn’t match the defendant as he presented that night. My observation of her testimony was she was very certain about his identity, and it was a very short period of time.
So I find all of those [factors] weigh in the State’s favor. For those reasons, the motion to suppress the show-up will be denied, and also relative to the in-court identification.

¶ 13. Although there was no requirement for him to do so, Judge Richardson, prior to the commencement of the second trial, revisited this issue and stated, “Judge Chapman ruled on that and ruled that that evidence was admissible and the posture I’m taking on it is that that was the correct ruling based on what was presented to the Court at that time.”

¶ 14. In today’s case, according to Smith’s trial testimony, she was standing close to Whitlock at the time of the incident and for a while she did not take her eyes off of him. She stated they were only inches apart, she had nothing obstructing her view, and Whitlock had nothing obstructing his face. Smith got a good look at Whitlock and stated that he was wearing a white tank top and dark shorts. At the time of his arrest, Whitlock was wearing a white tank top and blue shorts. Smith was also a hundred percent sure that she did not confuse the two suspects, Whitlock and the other occupant of the vehicle. Smith testified that when she identified Whitlock at the storage facility, only about an hour after the incident, there was no doubt in her mind that he was, in fact, the man who had attempted to rob her.

¶ 15. As this Court stated in York,

It can thus be observed that an accused who seeks to exclude identification testimony based upon an alleged due process violation faces a very heavy burden. Even though the pretrial identification is impermissibly suggestive, he must still show the conduct gave rise to a very substantial likelihood of irreparable mis-identification.

York, 413 So.2d at 1384. Here, Whitlock has not met this very high burden. When analyzing the Biggers factors, this Court cannot say, based on the circumstances surrounding the incident and show-up procedure, that “the conduct gave rise to a very substantial likelihood of irreparable misidentification.” Thus, in today’s case, we find no abuse of discretion in the trial court’s admission of this identification evidence. This issue is without merit.

II. WHETHER WHITLOCK’S SENTENCE IS DISPROPORTIONATE TO THE CRIME AND CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT.

¶ 16. Generally, a sentence will not be disturbed on appeal if it is within the limits prescribed by statute. Gibson v. State, 731 So.2d 1087, 1097 (Miss.1998) (quoting Hoops v. State, 681 So.2d 521, 537-38 (Miss.1996)) (citation omitted).

¶ 17. Whitlock argues that a sentence of life imprisonment without parole as an habitual offender for attempted automobile burglary is disproportionate to the crime and constitutes cruel and unusual punishment. The trial court sentenced Whitlock as an habitual offender pursuant to Mississippi Code Section 99-19-83, which states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss.Code Ann. § 99-19-83 (Rev.2007). At the sentencing hearing, evidence was presented that Whitlock was previously convicted: (1) in 1978 in the Second Judicial District of Harrison County, Cause Number 1672, for rape; (2) in 1978 in the Second Judicial District of Harrison County, Cause Number 1673, for house burglary; (3) in 1978 in the Second Judicial District of Harrison County, Cause Number 1674, for house burglary; (4) in 1978 in the First Judicial District of Harrison County, Cause Number 16308, for burglary; (5) in 1978 in the Second Judicial District of Harrison County, Cause Number 1268, for aggravated assault; and (6) in 1997 in the First Judicial District of Harrison County, Cause Number B2401-97-00394, for robbery.

¶ 18. Whitlock was sentenced to and served terms of one year or more in a state penal institution on each of these felony convictions, and at least one of these felonies was a crime of violence. In fact, Whitlock’s prior convictions involved at least three crimes of violence — rape, aggravated assault and robbery. Thus, it is clear that Whitlock met the criteria to be sentenced as an habitual offender to life imprisonment without parole under Section 99-19-83.

¶ 19. Whitlock still maintains that when conducting a proportionality analysis by applying the factors set forth in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the conclusion is that Whitlock’s sentence is constitutionally disproportionate to his offense. See also Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). This Court also has stated that “ ‘[i]n light of Harmelin, it appears that Solem is to apply only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of “gross dis-proportionality.” ’ ” Hoops, 681 So.2d at 538 (quoting Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th Cir.1996) (citing Harmelin, 501 U.S. at 1005, 111 S.Ct. 2680)). The Mississippi Court of Appeals recently held that a Solern analysis was not required in affirming a life sentence without parole pursuant to Section 99-19-83 for attempted burglary of an automobile, stating:

It is clear that under the facts of this case if Hawkins were found guilty of the charge of attempted burglary of an automobile, he could be sentenced as a habitual offender under section 99-19-83, as he has one previous conviction for robbery and two for burglary. It is well established that “[sentencing is within the complete discretion of the trial court and [is] not subject to appellate review if it is within the limits prescribed by statute.” Hoops, 681 So.2d at 537 (citing Reynolds v. State, 585 So.2d 753, 756 (Miss.1991)). We find no merit to this issue, as Hawkins’s sentence was within the statutory limits. Thus, no further analysis pursuant to Solem is required.

Hawkins v. State, 11 So.3d 123, 129 (Miss.Ct.App.2008). As in Hawkins, Whitlock’s sentence unquestionably was within the limits prescribed by statute, and there is no need for further analysis. As such, this issue is without merit.

III. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 20. In Whitlock’s final assignment of error, he asserts that the trial court erred in denying his motion for a new trial because the verdict was against the overwhelming weight of the evidence. Thus, our standard of review is as follows:

[This Court] must “accept as true the evidence which supports the verdict and [we] will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction “unconscionable injustice.”

Smith v. State, 802 So.2d 82, 86 (Miss.2001) (quoting Crawford v. State, 754 So.2d 1211, 1222 (Miss.2000)). “It is a fundamental principle of law that a jury verdict will not be disturbed except in the most extreme of situations. ‘Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.’ ” Coleman v. State, 926 So.2d 205, 208-09 (Miss.2006) (citations omitted).

¶21. Whitlock contends that a new trial is warranted because Smith stated that the driver of the vehicle had attempted to rob her, but when Trooper Dearman pulled the vehicle over, Whitlock was the passenger. According to Whit-lock, this testimony is conflicting; however, we must compare Smith’s testimony to the testimony of Investigator Jerry McCue of the Flowood Police Department. Investigator McCue testified that it came to law enforcement’s attention through the other occupant of the vehicle that the suspects had made a stop prior to being pulled over by Trooper Dearman. Reasonable jurors logically could infer that the two occupants of the vehicle had swapped positions during this stop. Whitlock also argues that due to the weather, Smith’s perception of the individual she saw at the bank could have been inaccurate. However, “the jury is the sole judge of the credibility of witnesses, and the jury’s decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict.” Billiot v. State, 454 So.2d 445, 463 (Miss.1984) (citing Harrigill v. State, 381 So.2d 619, 623 (Miss.1980); Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980); and Gangloff v. State, 242 Miss. 168, 134 So.2d 481 (1961)). In today’s case, Smith provided substantial and believable testimony that Whitlock was indeed the man who had attempted to burglarize her vehicle. She asserted that she had gotten a good look at him with nothing obstructing her view, and she testified to being a hundred percent sure that she did not confuse the two suspects.

¶ 22. Whitlock further asserts that no scientific evidence was admitted showing Whitlock was the person who attempted to rob Smith. This Court, however, has found that “ ‘the testimony of a single uncorroborated witness is sufficient to sustain a conviction.’ ” Derouen v. State, 994 So.2d 748, 752 (Miss.2008) (quoting Williams v. State, 512 So.2d 666, 670 (Miss.1987)). The record before this Court contains substantial and believable evidence that Whitlock committed the crime of attempted automobile burglary, and the trial court did not abuse its discretion in failing to grant a new trial. This issue is without merit.

CONCLUSION

¶ 28. Based on our discussion today, we affirm the Rankin County Circuit Court’s judgment of conviction for attempted automobile burglary and sentence of life imprisonment without parole under Mississippi Code Section 99-19-83, entered against Jerry Lamar Whitlock.

¶ 24. CONVICTION OF ATTEMPTED AUTOMOBILE BURGLARY AND SENTENCE OF LIFE IMPRISONMENT, WITHOUT PAROLE OR PROBATION, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE SHALL NOT BE REDUCED OR SUSPENDED.

WALLER, C.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY.

      . For the benefit of aiding law enforcement officials in locating and apprehending the perpetrator, Smith described the suspect as a black male wearing a white tank top and dark shorts.

      . Trooper Dearman stated the passenger was wearing a white tank top and blue shorts, and the driver was wearing a white tee shirt and Hawaiian, or flower design, shorts.

      . Later, the other suspect also was apprehended and identified.

      . Hughes v. State, 892 So.2d 203, 211 (Miss.2004) (rape, other than statutory rape, i.e., consensual, nonviolent sex, is a crime of violence).

      . Smith v. State, 877 So.2d 369, 387 (Miss.2004) (aggravated assault is a felony involving violence).

      . Magee v. State, 542 So.2d 228, 236 (Miss.1989) (robbery is a crime of violence).

      .The sentences for Cause Numbers 1672, 1673, 1674, 16308, and 1268 were all served concurrently. However, this Court has stated: "The question, thus, is whether serving one year or more on concurrent sentences for separate convictions amounts to serving more than one year on each sentence. We hold that it does." Magee v. State, 542 So.2d 228, 236 (Miss.1989).