author: MAXWELL, J.,

text:
    Cedric SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CA-01951-COA.
    Court of Appeals of Mississippi.
    March 27, 2012.

      Jeanine M. Carafello, M. Judith Barnett, attorneys for appellant.
    Ladonna C. Holland, attorney for appel-lee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Cedric Smith appeals the Pearl River County Circuit Court’s dismissal of his motion for post-conviction relief (PCR). He argues: (1) he did not voluntarily waive his right to indictment by a grand jury; (2) his Alford plea was involuntary and not supported by a sufficient factual basis; and (3) his trial attorney was constitutionally ineffective. Finding Smith’s allegations wholly unsupported by the record, we affirm.

FACTS

¶2. Smith was the baseball coach for Poplarville High School. In 2006, he began text messaging one of the school’s students, A.H., a fourteen year old girl. Several months later, Smith picked up A.H. near her home. He then drove her to the Poplarville High School baseball field, where he allegedly had sex with her in his car. Smith was thirty-five years old and A.H. was fourteen at the time. Smith waived indictment and entered an Alford plea to a one-count bill of information charging him with statutory rape. The State agreed to a non-binding recommendation that Smith serve five years’ imprisonment. But the circuit judge sentenced Smith to twenty years, with thirteen years suspended and seven to serve, followed by five years of post-release supervision. Smith filed a PCR motion, which the circuit court dismissed.

STANDARD OF REVIEW

¶ 3. Considering the dismissal of a PCR motion, we review the trial court’s findings of fact for clear error. Rowland v. State, 42 So.3d 503, 506 (¶ 8) (Miss.2010). We accept as true any evidence, together with the reasonable inferences that may be drawn from that evidence, which supports the trial court’s findings. Loden v. State, 971 So.2d 548, 572-73 (¶ 59) (Miss.2007). We defer to the circuit judge for witness credibility determinations. Id. at 573 (¶ 59). When reviewing questions of law, our standard is de novo. Rowland, 42 So.3d at 506 (¶ 8).

¶ 4. The burden is with the PCR movant to show by a preponderance of the evidence he is entitled to relief. Miss. Code Ann. § 99-39-23(7) (Supp.2011). A trial court may summarily dismiss a PCR motion where “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]” Miss.Code Ann. § 99-39-11(2) (Supp.2011). See also State v. Santiago, 773 So.2d 921, 923-24 (¶ 11) (Miss.2000). “We will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right.” Woods v. State, 71 So.3d 1241, 1243 (¶ 2) (Miss.Ct.App.2011) (quotations omitted).

DISCUSSION

I. Waiver of Right to Indictment by Grand Jury

¶ 5. Smith first argues he did not voluntarily waive his right to be indicted by a grand jury. Article 3, section 27 of the Mississippi Constitution, provides that “[n]o person shall, for any indictable offense, be proceeded against criminally by information, except in cases ... where a defendant represented by counsel by sworn statement waives indictment[.]” Smith executed a sworn waiver of indictment, in which he attested:

I understand that I am entitled to have this matter presented to a lawfully constituted and impaneled grand jury of this county and district for a determination of whether an indictment should be returned against me herein, and I hereby expressly waive my right to be proceeded against by indictment and consent to being proceeded against by information.

In his signed waiver, Smith further acknowledged his attorney had fully advised him of his rights and that he was “freely and voluntarily executing this waiver[.]”

¶ 6. Smith does not dispute executing the waiver of indictment. Nor does he contend that he did not understand what he was signing or its contents. He instead claims the trial court should have further advised him during his plea colloquy of his right of presentment to a grand jury. We agree the trial judge should have covered this right with him but find Smith’s recent challenge to the voluntariness of the waiver is merely conclusory and is contradicted by clear documentary evidence in the record. See Williams v. State, 770 So.2d 1048, 1051 (¶ 9) (Miss.Ct.App.2000).

¶ 7. We have held the Mississippi Constitution “allows for criminal proceedings by criminal information where a defendant represented by counsel has waived indictment by sworn statement.” Berry v. State, 19 So.3d 137, 138 (¶ 7) (Miss.Ct.App.2009); see also Diggs v. State, 46 So.3d 361, 364-65 (¶ 9) (Miss.Ct.App.2010); Edwards v. State, 995 So.2d 824, 826 (¶¶ 7-8) (Miss.Ct.App.2008). And here we cannot disregard that in signing the waiver, Smith acknowledged his attorney had fully advised him of his rights and that he was “freely and voluntarily executing this waiver[.]” Further, from our review it is apparent the negotiated waiver, Alford plea, and sentence recommendation were obviously carefully considered by Smith and were not the product of involuntary action.

¶ 8. Because Smith has not sufficiently explained how his waiver of indictment was involuntary — much less shown that it was actually involuntary — we find no merit to this assignment of error.

II. Factual Basis

¶ 9. Smith entered an Alford or best interest plea, which permits a defendant to plead guilty while at the same time maintaining his innocence where he voluntarily concludes his best interests require him to plead guilty. Cougle v. State, 966 So.2d 827, 830 (¶ 14) (citing Alford, 400 U.S. at 37, 91 S.Ct. 160) (citation omitted). Smith argues his Alford plea is invalid because the State’s accompanying factual basis did not show the offense occurred in Pearl River County, allegedly depriving the court of jurisdiction. He also challenges the sufficiency of the factual basis, claiming it did not establish sexual “penetration,” as required by statute.

A. General Requirements

¶ 10. Although an admission of guilt is not essential for a constitutionally valid guilty plea, a factual basis for the plea must exist. Reynolds v. State, 521 So.2d 914, 916 (Miss.1988). “[I]t is not error to accept a plea of guilt despite the defendant’s protestations of innocence where there exists substantial evidence of the defendant’s guilt.” Id. (quotations omitted). The factual basis must show each essential element of the offense. Carter v. State, 775 So.2d 91, 99 (¶ 35) (Miss.1999).

¶ 11. A sufficient factual basis requires “an evidentiary foundation in the record which is ‘sufficiently specific to allow the court to determine that the defendant’s conduct was within the ambit of that defined as criminal.’ ” Lott v. State, 597 So.2d 627, 628 (Miss.1992); see also Cougle, 966 So.2d at 831 (¶ 18) (citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)) (“[A] guilty plea must provide a trustworthy basis for believing that the defendant is in fact guilty.”). We review the entire record to discern whether a sufficient factual basis exists. Boddie v. State, 875 So.2d 180, 183 (¶ 8) (Miss.2004).

B. Proof that Crime Occurred in Pearl River County

¶ 12. Smith argues the State provided the court “no proof whatsoever” the crime occurred in Pearl River County. We disagree. Though his bill of information is not tantamount to proof, we point out the document charged that he committed statutory rape in Pearl River County. When waiving indictment, Smith also admitted he was charged with committing the offense in Pearl River County. The State explained in its factual basis that the entire series of events leading to the statutory rape, as well as the offense itself, occurred in Poplarville, Mississippi, which wholly lies in Pearl River County. Finally, during Smith’s plea colloquy, he acknowledged that by entering his Alford plea, he was waiving the right to a jury trial in Pearl River County. So we find no substance to his venue and jurisdiction-based challenge.

C. Proof of Penetration

¶ 13. Smith next claims the State failed to establish a statutory rape, allegedly overlooking the necessary element of penetration. He argues this omission renders his guilty plea invalid. Mississippi Code Annotated section 97—3—65(l)(a) (Supp.2011) criminalizes statutory rape, as follows:

(a) Any person seventeen (17) years of age or older has sexual intercourse with a child who:
(i) Is at least fourteen (14) but under sixteen (16) years of age;
(ii) Is thirty-six (36) or more months younger than the person; and
(iii) Is not the person’s spouse....

The statute defines “sexual intercourse” as:

a joining of the sexual organs of a male and female human being in which the penis of the male is inserted into the vagina of the female or the penetration of the sexual organs of a male or female human being in which the penis or an object is inserted into the genitals, anus or perineum of a male or female.

Miss.Code Ann. § 97-3-65(6) (Supp.2011).

¶ 14. The State advised the court it intended to prove, through A.H.’s testimony, that Smith “had sex” with her. The State proffered it would show that before the two “had sex,” Smith sent a text message to A.H. asking, “Do you have a condom”? When A.H. responded “no,” Smith went to a Kangaroo gas station and purchased a condom. Soon after, Smith picked A.H. up and drove her to the Pop-larville High School baseball field. Once Smith parked his car, “they began to touch each other in a sexual manner.” Smith “got on his knees on the floorboard,” then “told her to scoot to the end of the seat.” At this point, Smith “had sex” with A.H., then disposed of the condom on the way back to A.H.’s house.

¶ 15. “[A] factual showing does not fail merely because it does not flesh out the details which might be brought forth at trial.... Fair inference favorable to guilt may facilitate the finding.” Gaskin v. State, 618 So.2d 103, 106 (Miss.1993). A factual basis need only be sufficiently precise to allow a judge to determine whether “the defendant’s conduct was within the ambit of that defined as criminal.” Lott, 597 So.2d at 628.

¶ 16. That A.H. would testify Smith “had sex” with her was itself specific enough to establish sexual intercourse. Taking fair inferences from this evidence and the surrounding circumstances, we find the State’s proffer was certainly sufficient to permit a determination that Smith’s conduct fell within the prohibition of sections 97-3-65(l)(a) and 97-3-65(6).

III. Voluntariness of Plea

¶ 17. Smith contends his plea was involuntary because the trial court did not explain the elements of statutory rape during his plea colloquy.

¶ 18. Smith entered an Alford plea. “Alford held that there was no constitutional error in accepting a guilty plea even when the defendant maintains his innocence.” Cougle, 966 So.2d at 829 (¶ 9). A valid Alford plea must “have been made after the defendant has ‘knowingly and intelligently concluded that his best interests require entry of the guilty plea.’ ” Id. at 830 (¶ 14) (citing Alford, 400 U.S. at 37, 91 S.Ct. 160) (citation omitted); see also Bush v. State, 922 So.2d 802, 805 (¶ 4) (Miss.Ct.App.2005). Though Smith need not have admitted committing the elements of the offense, his plea must have been a “voluntary and intelligent choice ... among the alternative courses of action available.” Hannah v. State, 943 So.2d 20, 25 (¶ 11) (Miss.2006) (citing Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) and Alford, 400 U.S. at 31, 91 S.Ct. 160).

¶ 19. Smith’s bill of information laid out the elements of statutory rape. Smith also swore in his waiver of indictment that defense counsel had explained to him the nature of the charged offense. In his quite detailed plea petition, Smith again acknowledged his attorney’s advice of the nature of the charge. Our courts have long held “[sjolemn declarations in open court carry a strong presumption of verity.” Baker v. State, 358 So.2d 401, 403 (Miss.1978). And Smith attested during his plea colloquy that his attorney had explained the bill of information and crime charged. He further acknowledged reading and understanding his plea petition, which contained a non-binding sentencing recommendation from the State and detailed the charged offense. We find it important to also point out that during his plea colloquy Smith waived the reading of his bill of information, representing that he understood the nature of the offense charged.

¶ 20. The United States Supreme Court has held that the Constitution does not require the trial court to explain the elements of the offense to the defendant. Bradshaw v. Stumpf, 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005). “Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel.” Id. We find these mandates were met through Smith’s attorney.

IV. Ineffective Assistance of Counsel

A. Strickland

¶ 21. To prevail on his claim of ineffective assistance of counsel, Smith must show: (1) his counsel’s performance was deficient, and (2) the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To perform deficiently, an attorney must fail to meet “an objective standard of reasonableness.” Id. at 688. There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistancef.]” Id. at 689.

¶ 22. To establish prejudice, Smith must show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In the context of guilty pleas, this means the defendant “must show that, were it not for counsel’s errors, he would not have [pled] guilty and would have insisted on going to trial.” Burrough v. State, 9 So.3d 368, 375 (¶ 22) (Miss.2009).

¶23. “[W]here a defendant voluntarily pleads guilty to an offense, he waives all non-jurisdictional rights incident to trial[.]” Hill v. State, 60 So.3d 824, 827 (¶ 6) (Miss.Ct.App.2011) (citing Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991)). “This “waiver includes all claims of ineffective assistance of counsel, except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea.’ ” Id. (quoting United States v. Cavitt, 550 F.3d 430, 441 (5th Cir.2008)).

B. Smith’s Allegations

¶24. Smith claims his counsel was ineffective by: (1) failing to inform him of the elements of statutory rape; (2) failing to explain the nature of an Alford plea; (3) failing to explain “what was meant when he waived indictment[.]”; (4) erroneously advising him concerning “the rape shield laws contained in M.R.E .... 412(b)(2)(A)”; and (5) erroneously advising Smith that the State had possession of hundreds of text messages between Smith and the victim, A.H.

¶ 25. Smith’s allegations are not supported by any proof except his own affidavit. The Mississippi Supreme Court has held that a PCR movant may not rely solely on his own affidavit and unsupported allegations in his brief. Vielee v. State, 653 So.2d 920, 922 (Miss.1995). And “where an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the recordf — ]such as, for example, a transcript or written statements of the affiant to the contrary! — ]to the extent that the court can conclude that the affidavit is a sham[,] no hearing is required.” Williams, 770 So.2d at 1051 (¶ 9). Because Smith’s first three allegations are contradicted by other documentary evidence in the record, including his plea petition, waiver of indictment, and plea hearing transcript, the circuit court properly disposed of them without a hearing.

¶26. His fourth and fifth assignments must additionally fail because Smith did not plead them with the required specificity. He did not identify the evidence he perceives would have been admissible under Rule 412(b)(2)(A) to impeach A.H.’s (the victim’s) testimony. Without specifying this evidence, Smith is obviously unable to explain how the unidentified evidence would have affected his plea. Smith further fails to point to any prejudice suffered because his counsel allegedly falsely told him the State possessed the content of hundreds of text messages exchanged between himself and A.H. Smith does not deny sending the text messages, or that the information would have been available had his case proceeded to trial. Nor does he explain how this issue would have been the tipping point in deciding whether to enter an Alford plea.

¶ 27. Smith initially acknowledged his satisfaction with his attorney’s representation. And our review shows his attorney carefully counseled Smith about the dangers of proceeding to trial, facing a young student’s detailed accusations of sexual intercourse, which were at least in part corroborated by other evidence. Considering deficiently pled allegations and lacking sufficient proof to second guess his trial counsel, we deny his ineffective-assistanee-of-counsel claim.

¶ 28. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, RUSSELL AND FAIR, JJ„ CONCUR.

      . See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . A video from the gas station verified Smith entered the station that night.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Jacqueline PENDLETON, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2010-CC-01405-COA.
    Court of Appeals of Mississippi.
    April 24, 2012.
    Jacqueline Pendleton, appellant, pro se.
    Albert B. White, attorney for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Jacqueline Pendleton worked for Sanderson Farms until August 17, 2009, when she was discharged for clocking in a coworker, Joe Coleman, approximately thirty minutes before Coleman arrived for his shift. Pendleton admitted she had Coleman’s badge but denied clocking in Coleman early. Pendleton admittedly clocked in for other coworkers, but she claims it was only those coworkers she knew would be coming to work. Pendle-ton filed for unemployment benefits with the Mississippi Employment Security Commission (MESC).

¶ 2. After investigating the matter, the MESC claims examiner determined Pen-dleton had violated Sanderson Farms’ policy prohibiting falsification of time records. According to Tracy Hall, the Field Employee Relations Manager, one incident of clocking in for another employee is grounds for immediate discharge without a warning. This policy was told to every employee and posted in the employee break room at Sanderson Farms. It was also discovered that Pendleton had clocked in for Coleman on a day that Coleman did not show up for work, resulting in Coleman being paid for not working.

¶ 8. The claims examiner disqualified Pendleton from receiving unemployment benefits. The administrative judge (AJ) held a telephonic hearing and ultimately affirmed the decision of the claims examiner. The MESC Board of Review (Board) also affirmed, adopting the AJ’s facts and conclusions. Pendleton appealed to the Copiah County Circuit Court. The circuit court also affirmed the decision of the Board.

¶ 4. Pendleton now appeals asserting she did not commit the misconduct as charged; thus, she is entitled to unemployment benefits. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. Our restrictive standard of review for administrative appeals is well known. In the absence of fraud and if supported by substantial evidence, an order from the Board on the facts is conclusive in the trial court. Miss. Employment Sec. Comm'n v. PDN, Inc., 586 So.2d 838, 840 (Miss.1991). On appeal, employees have the burden of overcoming a rebutta-ble presumption in favor of the Board’s decision. Miss. Employment Sec. Comm'n v. Noel, 712 So.2d 728, 730 (¶ 5) (Miss.Ct.App.1998). The denial of benefits may be disturbed only if (1) unsupported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope of power granted to the agency, or (4) in violation of the employee’s constitutional rights. Miss. Comm'n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993).

DISCUSSION

¶ 6. In her only issue on appeal, Pendleton argues that she did not commit misconduct; thus, she should be awarded unemployment benefits. A definition of the term “misconduct” can be found in Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982), which provides:

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

¶ 7. We find that there was substantial evidence to support the Board’s decision. The record established Pendleton had Coleman’s identification badge, and someone used it to clock in for Coleman approximately thirty minutes before his shift. Pendleton further admitted that she occasionally clocked in for other employees. Also, Sanderson Farms employees were notified of the company policy that falsification of time records is grounds for immediate discharge without warning. This policy was also posted in the employee break room, and Pendleton’s duties included cleaning the break room.

¶ 8. We note that several cases indicate a one-time violation of an employer’s policies can constitute misconduct. See Halbert v. City of Columbus, 722 So.2d 522, 527 (¶ 22) (Miss.1998) (employee’s refusal to submit to a random drug test constituted misconduct; thus, she was not entitled to unemployment benefits); Miss. Employment Sec. Comm’n v. Percy, 641 So.2d 1172, 1173-74 (Miss.1994) (nurse’s failure to punch time cards was violation of hospital policy and constituted misconduct; thus, she was disqualified from receiving unemployment benefits); Richardson v. Miss. Employment Sec. Comm’n, 593 So.2d 31, 35 (Miss.1992) (employee failed to maintain his Mississippi driver’s license, which was a required condition of employment, and this amounted to misconduct as a matter of law).

¶ 9. We affirm the circuit court’s decision, which affirmed the Board’s denial of unemployment benefits to Pendleton.

¶ 10. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT IS AFFIRMED.

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


author: MAXWELL, J,

text:
    Johnny JAMES Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00786-COA.
    Court of Appeals of Mississippi.
    April 24, 2012.

      John R. McNeal Jr., Jackson, attorney for appellant.
    Office of the Attorney General, by Laura Hogan Tedder, attorney for appellee.
    Before IRVING, P.J., MAXWELL and RUSSELL, JJ.
   MAXWELL, J,

for the Court:

¶ 1. Mississippi has adopted Uniform Rule of Circuit and County Court 9.06 as a procedural safeguard to ensure an accused is competent to stand trial. Johnny James Jr. was convicted in the Newton County Circuit Court of the statutory rape of a twelve-year-old girl. On appeal, he argues his procedural due-process rights were violated because the trial court did not comply with Rule 9.06.

¶ 2. We find the retrospective competency hearing ordered by this court satisfies the requirements of procedural due process and the purpose of Rule 9.06. We also find no reversible error in the trial court’s overruling James’s objections to the State’s leading questions and that the weight of the evidence supports James’s conviction. For these reasons, we affirm James’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

I. The Rape

¶ 3. S.L. is a young cousin of James. In May 2007, S.L. was twelve years old, while James was twenty six.

¶4. On the night of May 25, 2007, a relative dropped S.L. and her younger brother off with James and Roger Huddle-ston, who were riding around Newton County in a pickup truck collecting aluminum cans. At some point, the group took a break and parked the truck. S.L. testified that while Huddleston went to the woods to relieve himself, James told her to “give me some or we are not going home.” S.L. understood this to mean James wanted to have sex with her. Upset, S.L. took off running down the dirt road.

¶ 5. According to S.L., James caught up with her at a point outside of eyesight from the truck. He forced S.L. to the ground and pulled down her elastic-waist pajama pants and panties. S.L. testified that, despite telling James to stop, James put his penis in her vagina and then rolled her over and penetrated her bottom. James eventually released S.L. when she said she had to go to the bathroom. Once off the ground, S.L. took off running toward the truck.

¶ 6. Huddleston testified that, when he came back to the truck, he could not find James or S.L. A few moments later he heard S.L. screaming from a distance. When S.L. came back to the truck, Hud-dleston noticed she had been crying and appeared disheveled. S.L. immediately told Huddleston James had raped her.

¶ 7. S.L. testified that the group drove back to James’s mother’s house, where S.L. was staying. S.L. testified she had been bleeding and had to throw away her panties. She also testified she told James’s mother, Brenda, that night about the rape. But Brenda did not notify the authorities. In June 2007, S.L. told Brenda about a separate incident in which Hud-dleston had fondled her. Again, Brenda did not report S.L.’s allegations.

¶ 8. In July, S.L.’s mother took S.L. to the Department of Human Services. A DHS employee interviewed S.L., who provided a written account of the rape. S.L.’s parents then reported the rape to the Newton County Sheriffs Office. S.L. testified she had not told her parents earlier about the rape because she was afraid her father would try to hurt James, and she did not want her father to go to jail if he did.

¶ 9. Huddleston pled guilty to gratification of lust, agreeing as part of his plea to testify about what happened the night of May 25, 2007. James was charged with statutory rape.

II. The Trial

¶ 10. James was tried on August 19, 2008. His counsel did not argue James was not competent to stand trial. Nor did his attorney seek to continue the trial until James’s competency could be determined. James was convicted of statutory rape and sentenced to twenty-five years in the custody of the Mississippi Department of Corrections, to be served day for day.

¶ 11. James filed a post-trial motion for a judgment notwithstanding the verdict or new trial, raising the issues of weight of the evidence, inadmissible hearsay, failure to grant his proposed jury instruction, and failure to grant his motion in limine. He did not assert he was entitled to a new trial because he had not been declared competent before the August 19, 2008 trial.

¶ 12. The trial judge denied his motion, and James timely appealed. On appeal, James argues the trial judge erred by not holding a pre-trial competency hearing and making an on-the-record determination that James was competent to stand trial. See URCCC 9.06. The record contained a motion for psychiatric exam, submitted by James’s attorney, Shawn Harris. Harris attached an affidavit in support of the examination, in which Harris stated he had consulted with “Robert B. Evans” several times and believed the defendant was not competent to stand trial. The trial judge granted the motion. The record contained two orders rescheduling the psychiatric exam, the last scheduling the exam on August 4, 2008, two weeks before trial. The record was silent about whether such an exam ever took place. The next recorded action was James’s August 19, 2008 trial, in which Christopher Collins, and not Harris, represented James. At no point did Collins raise his client’s incompetency to stand trial.

¶ 13. Because of the uncertainty in the record, on August 11, 2011, this court ordered this case be remanded to circuit court (1) for a hearing to determine whether Harris had intended to seek a psychiatric evaluation of James and, if so, (2) for a nunc pro tunc, or retrospective, competency hearing to determine whether James was competent to stand trial in August 2008.

¶ 14. On October 12, 2011, the trial judge heard testimony from Harris. Harris testified he had sought an evaluation of James and the reference to “Robert B. Evans” in the motion was a typographical error. Harris testified James was examined by a psychiatrist prior to trial and that Harris had received the psychiatrist’s report, which found James was competent. Harris testified he did not try James’s case, another public defender did.

¶ 15. Satisfied James had sought a mental evaluation under Rule 9.06, the trial judge then heard testimony on James’s competency to stand trial from Dr. Mark Webb, the psychiatrist who evaluated James in August 2008. In Dr. Webb’s report, he opined James was competent to stand trial and was not criminally insane at the time of the crime. The report was introduced into evidence. Dr. Webb testified he held the same opinion as he did in August 2008, when he made the report. Dr. Webb testified that, while he did not keep a record of his correspondence, his protocol after making such a report was to send a copy to the defendant’s attorney, the district attorney’s office, and the clerk’s office. James’s counsel cross-examined Dr. Webb about his report and James’s family and mental history. On December 13, 2011, the trial judge issued an order finding James was competent to stand trial on August 19, 2008.

DISCUSSION

¶ 16. James raises three issues on appeal. He argues (1) his constitutional rights were violated by the trial judge’s failure to comply with Rule 9.06 and not conducting an on-the-record competency hearing prior to his August 19, 2008 trial; (2)the trial judge committed reversible error by overruling objections to leading questions; and (3) the trial judge committed reversible error by denying his motion for new trial. We find no reversible error and affirm the judgment of conviction and sentence.

I. Competency Hearing

¶ 17. In Mississippi, a legally competent defendant is one “(1) who is able to perceive and understand the nature of the proceedings; (2) who is able to rationally communicate with his attorney about the case; (3) who is able to recall relevant facts; (4) who is able to testify in his own defense if appropriate; and (5) whose ability to satisfy the foregoing criteria is commensurate with the severity and complexity of the case.” Howard v. State, 701 So.2d 274, 280 (Miss.1997) (overruled on other grounds) (citation omitted); see Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam) (defining the test for competency as “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him”).

¶ 18. “[T]he conviction of an accused person while he is legally incompetent violates due process[.]” Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) (citing Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956)). “To safeguard that due process guarantee, the [United States] Supreme Court announced in Pate ... a separate procedural due process right to a competency hearing whenever the facts or events presented to the trial court raise a bona fide doubt as to the defendant’s competency.” Reese v. Wainwright, 600 F.2d 1085, 1091 (5th Cir.1979). Pate held that when the evidence raises this bona fide doubt, the court’s failure to inquire sua sponte into the issues of competency deprives the defendant of his constitutional right to a fair trial. Pate, 383 U.S. at 385, 86 S.Ct. 836.

¶ 19. James argues his constitutional rights were violated because he was not afforded the procedural safeguard of a competency hearing prior to his August 2008 trial. Because we find the retrospective competency hearing cures the procedural violation under Pate and substantially complies with the purposes of Rule 9.06, we find no reversible error in the trial court’s failure to conduct a competency hearing prior to trial.

A. Rule 9.06

¶ 20. Under Pate, states must have adequate procedures to ensure a defendant is competent to stand trial. Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir.1980) (citing Pate, 383 U.S. at 378, 86 S.Ct. 836). Mississippi has adopted Rule 9.06:

If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court in accordance with § 99-13-11 of the Mississippi Code Annotated [ (Rev.2007) ].
After the examination the court shall conduct a hearing to determine if the defendant is competent to stand trial. After hearing all the evidence, the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial. If the court finds that the defendant is competent to stand trial, then the court shall make the finding a matter of record and the case will then proceed to trial.

¶ 21. Under this rule, if a trial court, before or during trial, “has reasonable ground to believe that the defendant is incompetent to stand trial,” the court must order a mental evaluation by a psychiatrist and conduct an on-the-record competency hearing. Id. So, our preliminary question is whether the trial court had “reasonable grounds” to believe James was incompetent, triggering the procedural requirements of Pate and Rule 9.06.

¶ 22. In 2009, the Mississippi Supreme Court handed down a pair of decisions, Jay v. State, 25 So.3d 257 (Miss.2009) and Sanders v. State, 9 So.3d 1132 (Miss.2009), which relate to our inquiry. In Sanders, the plurality of the court held “it would be error not to hold a competency hearing once a trial court orders a psychiatric evaluation to determine competency to stand trial.” Sanders, 9 So.3d at 1136 (¶ 16). “By finding that Sanders’s motion for psychiatric examination was well taken and granting it, the trial court necessarily determined that some, if not all, of the assertions in Sanders’s motion were sufficient to order a psychiatric examination of Sanders.” Id. at 1137 (¶ 18). In Jay, a unanimous supreme court held “the trial court clearly had reasonable grounds to believe Jay was incompetent to stand trial, as evidenced by the order for a psychiatric evaluation.” Jay, 25 So.3d at 262 (¶ 29). In both cases, the supreme court held the trial court had to conduct a competency hearing after ordering a mental evaluation. Id. at 262-63 (¶ 57 30-34); Sanders, 9 So.3d at 1136-37 (¶ 57 16-18).

¶ 23. Here, based on the trial record as originally submitted, it was not clear as in Jay whether the trial court had reasonable grounds to grant a mental evaluation. In Jay, the motion for psychiatric evaluation stated the defendant had suffered traumatic brain injury. Attached to the motion was a letter from the defendant’s doctor stating that, due to the injury, the defendant suffered from cognitive deficits and would be unable to participate in any court proceedings. Jay, 25 So.3d at 261-62 (¶ 26). In Sanders, the motion for evaluation asserted the defendant had exhibited destructive behavior since being shot in the head. Attached to the motion was an affidavit by the attorney stating he believed the defendant was of insufficient soundness of mind to make a rational defense. Sanders, 9 So.3d at 1137 (¶ 18).

¶ 24. James’s motion for psychiatric evaluation referred the court to an attached affidavit and generically asserted: “Because of the Defendant’s present actions and history, it is submitted that he should be ordered for psychiatric examination, observation, and evaluation.” But the attached affidavit confusingly stated James’s attorney “has consulted with Robert B. Evans seve[ra]l times, [and] that this attorney believes said Defendant is of insufficient soundness of mind to make a rational defense[.]” Because the record left unclear whether James’s attorney, Harris, was asserting reasons to believe James was incompetent, we ordered the trial court conduct an evidentiary hearing. At this hearing, Harris testified he had intended to have James evaluated and the reference to “Robert B. Evans” was a typographical error. While Harris could not remember the specific reasons for filing the motion, he testified “something had occurred that we felt it was best to ... have [James] examined before he went to trial.” Harris testified his office did not routinely file motions for evaluation. Instead, “it’s generally something pretty significant[.]”

¶ 25. Based on Harris’s testimony that he believed reasons existed for James to be evaluated for competency prior to trial and the trial court’s grant of that motion, we find the trial court had reasonable grounds to believe James was incompetent. Thus, the trial court’s failure to conduct a competency hearing was both a procedural due-process violation, or a Pate violation, and a failure to comply with Rule 9.06.

B. Nunc Pro Tunc Hearing

¶ 26. At the evidentiary hearing, if the trial court was satisfied reasonable grounds existed to order the mental evaluation of James under Rule 9.06, we ordered the trial court to then conduct a nunc pro tunc, or retrospective, hearing concerning James’s competency in 2008.

¶27. Once a Pate violation has occurred, the question becomes whether an adequate hearing can be held to determine the defendant’s competency at the time of his trial. Wheat v. Thigpen, 793 F.2d 621, 630 (5th Cir.1986). The United States Court of Appeals for the Fifth Circuit, though “acutely aware of the hazards connected with retrospective competency hearings,” nevertheless “has repeatedly sanctioned nunc pro tunc proceedings where there is sufficient data available to guarantee reliability.” Id. (quoting United States v. Makris, 535 F.2d 899, 904 (5th Cir.1976)); see also People v. Ary, 51 Cal.4th 510, 120 Cal.Rptr.3d 431, 246 P.3d 322, 329 (2011) (acknowledging the majority of courts agree the failure to hold a competency hearing at'the time of trial can be cured retroactively). The Fifth Circuit recognizes “contemporaneous expert medical evidence often provides the most useful evidence” of whether a meaningful retrospective hearing may be held. Wheat, 793 F.2d at 630 (quoting Makris, 535 F.2d at 904); see Lokos v. Capps, 625 F.2d 1258, 1262 (5th Cir.1980) (asking whether “the tools of rational decision are now available”).

¶ 28. This court ordered an evi-dentiary hearing to determine if the tools for holding a meaningful retrospective hearing were available — namely, to determine whether a contemporaneous mental evaluation was conducted. At that hearing, Dr. Webb testified he had evaluated James the month of his trial, and James’s attorney testified he had received Dr. Webb’s report. Dr. Webb’s report was produced at this hearing, giving the trial court “the most useful evidence” of James’s competency in 2008. See Wheat, 793 F.2d at 630. Thus, we find under the circumstances, there was sufficient information to make the retrospective hearing meaningful, curing the violation of James’s procedural due-process rights.

¶ 29. We also find the retrospective hearing substantially complied with Rule 9.06. In Hearn v. State, the Mississippi Supreme Court found “the trial court failed to comply in the strictest technical sense with Rule 9.06[.]” Hearn v. State, 3 So.3d 722, 730(19) (Miss.2008). But because the doctor who evaluated the defendant testified at trial about the defendant’s competency and was subject to cross-ex-animation and because the defendant was afforded the opportunity to present competing evidence, “the purposes of Rule 9.06 were satisfied.” Id. But see Sanders, 9 So.3d at 1139-41 (¶ 57 28-37) (Kitchens, J., concurring in resulting only) (advocating overruling Hearn and requiring strict compliance with URCCC 9.06).

¶ 30. At the retrospective hearing, Dr. Webb testified that he had observed and evaluated James in August 2008. In his 2008 report, the doctor found James competent to stand trial — an opinion James’s trial attorney neither contested before or during trial. James’s current attorney cross-examined Dr. Webb on the bases for his findings and information in his report concerning James’s mental history. As in Hearn, we find the purposes of Rule 9.06 — to provide a procedural safeguard against a due-process violation by providing James the opportunity to present evidence of his incompetency — were satisfied. See Hearn, 3 So.3d at 730 (¶ 19).

¶ 31. Based on Dr. Webb’s testimony, the trial court found James was competent to stand trial on August 19, 2008. Because there was no evidence James was incompetent in August 2008, we affirm the trial court’s finding, as it was not “manifestly against the overwhelming weight of the evidence.” Bridges v. State, 807 So.2d 1228, 1230 (¶ 10) (Miss.2002) (quoting Emanuel v. State, 412 So.2d 1187, 1189 (Miss.1982)).

II. Leading Questions

¶ 32. James argues the trial judge abused his discretion by overruling James’s objection to the State’s leading questions to two of its witnesses without first having the witnesses declared hostile or adverse. We review the direct examination of Huddleston only. James made no objections to questions presented to S.L. as being leading. Thus, he has waived any objection on appeal. Jackson v. State, 832 So.2d 579, 581 (¶ 3) (Miss.Ct.App.2002) (citing Carr v. State, 655 So.2d 824, 853 (Miss.1995)).

¶ 33. A “leading question” is “one that suggests to the witness the specific answer desired by the examining attorney.” Tanner v. State, 764 So.2d 385, 405 (¶ 58) (Miss.2000) (quoting Clemons v. State, 732 So.2d 883, 889 (¶ 25) (Miss.1999)). Mississippi Rule of Evidence 611(c) states:

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

James argues, because Huddleston testified as part of his plea agreement, he was not identified with an adverse party and was not called as a hostile witness. Thus, the trial judge abused his discretion by allowing the State to ask leading questions.

¶ 34. But Rule 611(c) does not restrict the trial judge’s discretion to only allowing leading questions of hostile and adverse witnesses:

[T]he decision to allow a party to ask leading questions during direct examina-tion rests within the sound discretion of the trial court. In other words, a trial court has general discretion to allow leading questions if needed for the development of a witness’s testimony. The use of leading questions is not ground for reversal unless the trial court abused its discretion, and the decision resulted in “substantial” injury to the appealing party.

Osborne v. State, 54 So.3d 841, 845 (¶ 16) (Miss.2011) (internal citations omitted); see Harrison v. State, 49 So.3d 80, 85 (¶ 15) (Miss.2010) (quoting Jones v. State, 606 So.2d 1051, 1059 (Miss.1992)) (“A trial court has the discretion to allow leading questions under certain circumstances, so long as doing so does not prejudice a ‘complaining party.’ ”). Thus, the trial judge did not commit legal error by simply overruling objections to leading questions of a non-adverse, non-hostile witness.

¶ 35. In his brief, James makes generalized arguments about how the trial judge abused his discretion by allowing leading questions. But he does not point to any specific objections that were overruled or how Huddleston’s answers, which he alleged were suggested by the State, prejudiced him. See Harrison, 49 So.3d at 85 (¶ 15). Our review of Huddleston’s direct testimony shows only two objections to leading and/or suggestive questions that the trial judge overruled. And we find no prejudice in either answer. The first question — “So the four of y’all are riding around in the pickup?” — merely retread Huddleston’s testimony about riding around in a truck. And James made no objection to this early testimony on the basis the State was suggesting what type of vehicle James, S.L., and Huddleston were in. The second question was about Huddleston going back with S.L. to find her shoes after the rape. At this point, Huddleston had already testified he heard S.L. scream, saw she was disheveled and upset when she returned, and heard her say James had raped her. We fail to see how Huddleston’s testimony about looking for S.L.’s shoes, even if suggested by the State, substantially injured James. See Osborne, 54 So.3d at 845 (¶ 16). Thus, we find no reversible error on this issue.

III. Weight of the Evidence

¶ 36. James also argues he is entitled to a new trial because the verdict was contrary to the overwhelming weight of the evidence.

¶ 37. “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947(18) (Miss.2000)). “When reviewing a claim based on the weight of the evidence, we evaluate the evidence in the light most favorable to the verdict and ‘will only disturb the verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.'” Boyda v. State, 57 So.3d 61, 63-64 (¶ 8) (Miss.Ct.App.2011) (quoting Bush, 895 So.2d at 844 (¶ 18)). “We must accept as true all evidence consistent with the defendant’s guilt, along with any reasonable inferences that might be drawn from the evidence.” Id. at 64 (¶ 8) (citing Young v. State, 891 So.2d 813, 821 (¶ 21) (Miss.2005)).

¶ 38. “The crime of statutory rape is committed when: ... A person of any age has sexual intercourse with a child who: (i) Is under the age of fourteen (14) years; (ii) Is twenty-four (24) or more months younger than the person; and (iii) Is not the person’s spouse. Miss.Code. Ann. § 97-3-65(b) (Supp.2011). James challenges the jury’s finding beyond a reasonable doubt that James had sexual intercourse with S.L. He argues this finding is against the weight of the evidence because: (1) Huddleston and S.L. testified to “grossly divergent” versions of what happened; (2) Huddleston’s and S.L.’s testimonies were improperly elicited by the State through leading questions; (3) the State presented no physical evidence of penetration; and (4) S.L. waited to report the incident to the authorities until months later.

A. Testimony

¶ 39. Besides the general assertion that Huddleston’s and S.L.’s testimonies told inconsistent stories, James cited no specific instances where their testimonies differed. We reviewed both testimonies and find both support the jury’s finding that James raped S.L. Both testified the three of them, along with S.L.’s little brother, were in a truck together the night of the incident. Both testified S.L. ran off and that James ran after her. S.L. maintained James caught up with her and raped her. And Huddleston testified S.L. had returned disheveled and told him James raped her.

¶ 40. Furthermore, if any evidence did conflict, the jury was “the sole judge of the credibility of witnesses and the weight and worth of their testimony.” Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980) (citations omitted). “We have repeatedly held that in a criminal prosecution the jury may accept the testimony of some witnesses and reject that of others, and that they may accept in part and reject in part the evidence on behalf of the state or on behalf of the accused. In other words, the credibility of witnesses is not for the reviewing court.” Id.

¶ 41. As already discussed, James made no objections to S.L.’s testimony as being elicited by improper leading questions. And we find no abuse of discretion in the trial court’s allowing Huddleston’s testimony over James’s Rule 611(c) objection.

B. Lack of Physical Evidence

¶ 42. Mississippi’s statutory-rape statute provides: “In all cases where a victim is under the age of sixteen (16) years, it shall not be necessary to prove penetration where it is shown the genitals, anus or perineum of the child have been lacerated or torn in the attempt to have sexual intercourse with the child.” Miss. Code Ann. § 97-3-65(5) (Supp.2011). But “[t]here is no requirement that the State prove tearing or laceration of the victim’s private parts.” McDaniel v. State, 790 So.2d 244, 246-7 (¶ 12) (Miss.Ct.App.2001). Instead, “when the victim is less than sixteen years of age, proof of tearing is an acceptable substitute for proof of penetration.” Id. at 247 (¶ 12).

¶ 43. Establishing penetration requires the State to prove “there was ‘some penetration’ of the victim’s vagina by the defendant’s penis.” Id. at 247 (¶ 13) (citations omitted). “[0]nly ‘slight penetration’ need be shown.’ ” Id. (quoting Jackson v. State, 452 So.2d 438, 440 (Miss.1984)). In McDaniel, this court found the victim’s testimony that actual penetration had occurred was sufficient to prove the element of penetration without any further medical testimony to establish tearing or laeera-tions. Id. at 247 (¶ 14). Here, S.L. testified James put his penis in both her vagina and bottom, causing her to bleed. For the purposes of review, we accept this evidence as true, as it supports the jury’s guilty verdict. Id. at 247 (¶ 15).

¶ 44. And we do not find the lack of physical evidence overwhelmingly weighs against the verdict. In Woods v. State, this court held “[t]he totally uncorroborated testimony of a sex crime victim is sufficient to support a guilty verdict where it is consistent with the circumstances and is not discredited or contradicted by other credible evidence.” Woods v. State, 973 So.2d 1022, 1031 (¶ 26) (Miss.Ct.App.2008) (citing Green v. State, 887 So.2d 840, 845 (¶ 13) (Miss.Ct.App.2004)). We find James presented no evidence that contradicted S.L.’s testimony. Though James argues S.L.’s delay in reporting the rape to the authorities undermines her testimony, S.L. explained she did not report the incident to the authorities until months later because she was afraid her father, if he learned what James had done, would retaliate and might go to jail. It was the jury’s unique role to determine the credibility of this explanation and what effect S.L.’s delay in reporting the incident had on the overall credibility of her testimony about the rape.

¶45. Moreover, “[a] sex crime victim’s testimony is corroborated by the victim’s physical and mental condition after the alleged incident and by the victim’s immediate reporting of the incident.” Id. (citing Vaughn v. State, 759 So.2d 1092, 1098 (¶ 18) (Miss.1999)). Huddleston testified immediately after the rape he heard S.L. yelling. She came back to the truck alone barefoot. Her eyes were red and full of tears, and she told Huddleston that James had raped her. Thus, we find S.L.’s testimony sufficiently corroborated. See id. at 1031 (¶ 27) (finding victim’s testimony sufficiently corroborated because, though she did not immediately report rape to authorities, she did tell someone else about the incident).

¶ 46. On review, we find, viewing the testimony in the light most favorable to the verdict, reasonable jurors could have found James guilty. Thus, we affirm the judgment of conviction and sentence.

¶47. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TO BE SERVED DAY FOR DAY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, RUSSELL AND FAIR, JJ., CONCUR.

      . Because of the nature of the crime and the victim’s age, we use only her initials throughout this opinion.

      . Prior to S.L. taking the stand, the trial judge addressed the potential need of leading questions to determine the competency of S.L., a young child, see M.R.E. 611(c) cmt., as well as develop her testimony. See Ivy v. State, 522 So.2d 740, 742 (Miss.1988) (finding M.R.E. 611(c) "acknowledge[s] that leading questions may be necessary to develop the testimony” and that ”[c]hildren are a classic example of the kinds of witnesses for whom leading questions may be necessary”) (citation omitted). But the judge said he would consider any objections by James on a question-by-question basis. James made no objections to any of the State's questions to S.L.

      . The crime of statutory rape is also committed when "[a]ny person seventeen (17) years of age or older has sexual intercourse with a child who: (i) Is at least fourteen (14) but under sixteen (16) years of age; (ii) Is thirty-six (36) or more months younger than the person; and (iii) Is not the person’s spouse[J” Miss.Code. Ann. § 97-3-65(a) (Supp.2011).


author: PER CURIAM.

text:
    JONES EXPRESS, INC. v. Edward E. JACKSON, Sr., and Jacqueline F. Jackson, individually and as custodial parents of Joshua L. Jackson, a minor, deceased. Edward E. Jackson, Sr., and Jacqueline F. Jackson, individually and as custodial parents of Joshua L. Jackson, a minor, deceased v. Charles Quada and Jones Express, Inc.
    1070066 and 1090663.
    Supreme Court of Alabama.
    Sept. 24, 2010.
    Rehearing Denied (case no. 1090663) Dec. 16, 2011.

      Robert Black, Jr., and Doy Leale McCall III of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery; and Gary Phillips of Harris, Cadell & Shanks, P.C., Decatur, for the appellant Jones Express, Inc., in case no. 1070066.
    William H. Webster and Robert C. Black of Webster, Henry, Lyons, White, Bradwell & Black, P.C., Montgomery, for appellees Jones Express, Inc., and Charles Quada, in case no. 1090663.
    J. Barton Warren and Derek W. Simpson of Warren & Simpson, P.C., Huntsville, for the appellees/cross-appel-lants Edward E. Jackson, Sr., and Jacqueline F. Jackson, individually and as custodial parents of Joshua L. Jackson, a minor, deceased.
   On Rehearing Ex Mero Motu

PER CURIAM.

This Court’s opinion of June 30, 2010, in case no. 1070066, is withdrawn, and the following is substituted therefor.

In case no. 1070066, Jones Express, Inc., a defendant below, appeals from a judgment entered on a jury verdict in favor of the plaintiffs, Edward E. Jackson, Sr., and Jacqueline F. Jackson (“Jackie”), both individually and as custodial parents of Joshua L. Jackson, a minor, deceased, on the Jacksons’ claim seeking damages for negligent hiring, retention, and supervision and for wrongful death. In case no. 1090663, the Jacksons appeal from a judgment entered in favor of Charles Quada on their claim seeking damages for negligence. We reverse both judgments and remand the case for a new trial.

Facts and Procedural History

During the early morning hours of March 30, 2004, Joshua L. Jackson, a minor, was driving a motor vehicle on County Road 35 in Morgan County. Edward, his father, was a passenger in the vehicle. Quada, an employee of Jones Express, was driving on Highway 67 in a tractor-trailer truck owned by Jones Express. The intersection of Highway 67 and County Road 35 is controlled by a traffic light. At the intersection, Quada’s truck and Joshua’s vehicle collided.

Both Joshua and Edward were injured in the accident. On April 7, 2004, Edward and Jackie, both individually and as custodial parents of Joshua, filed a complaint seeking damages from Quada and Jones Express stemming from the collision. Joshua died on May 15, 2004, of injuries he sustained in the collision.

The Jacksons amended their complaint several times. The last amended complaint alleged that Quada, who at the time of the accident “was on the job and acting as an agent for Jones Express,” failed to stop at a red traffic light before entering the intersection of Highway 67 and County Road 35 and colliding with Joshua’s vehicle. The complaint sought damages from Quada for negligence and wantonness and sought damages from Jones Express, under a theory of respondeat superior, for negligent entrustment and for negligent hiring, retention, and supervision. Additionally, the Jacksons sought damages against Quada and Jones Express for wrongful death. Finally, the Jacksons alleged a claim against their insurer, Alfa Mutual Insurance Company (“Alfa”), for uninsured- and/or underinsured-motorist benefits.

After discovery, the case proceeded to trial. The defendants moved for a judgment as a matter of law (“JML”) at the close of the Jacksons’ case and again at the close of the evidence. Both motions were denied.

The trial court instructed the jury on three claims: (1) negligence by Quada; (2) negligent hiring, retention, and supervision on the part of Jones Express; and (3) negligent entrustment by Jones Express. As to the negligent hiring, retention, and supervision claim, the jury was instructed as follows:

“Jones Express owed a duty to Edward Jackson and Joshua Jackson to avoid inflicting injuries upon them by using reasonable care and diligence in the hiring, supervision and retention of employees who would be driving its trucks on the public roadways of this state. Reasonable care and diligence means such care and diligence as a reasonably prudent employer would use under the same or similar circumstances.
“To prevail on this negligence claim, the plaintiffs must prove to your reasonable satisfaction the following elements:
“Number one, that Mr. Quada was an incompetent driver.
“Number two, that Jones Express knew or reasonably should have known through the exercise of due diligence that Mr. Quada was an incompetent driver.
“And number three, that Jones Express failed to exercise reasonable care in ... hiring, supervising or retaining Mr. Quada after being placed on notice that he was an incompetent driver.”

As to causation for all three claims, the trial court instructed, in pertinent part:

“If, after you consider all of the evidence, you are reasonably satisfied that [Quada and Jones Express] were negligent in one or more of the respects that have been claimed by the [Jacksons] in this case, then the next thing you must do is to decide whether or not such negligence on the part of [Quada and Jones Express] was the legal or proximate cause of injuries suffered by Edward Jackson and injuries to and the death of Joshua Jackson.”

The trial court also submitted two verdict forms to the jury: one to be completed if the jury found for the Jacksons, and one to be completed if it found for Quada and Jones Express. The first form, titled “Plaintiffs Verdict,” stated:

“If, after a full and fair consideration of all the evidence, you find for the plaintiffs on one or more of their claims, then you should use the following verdict form:
“CLAIM 1: THAT THE DEFENDANTS, CHARLES QUADA AND JONES EXPRESS, INC., WERE NEGLIGENT IN OPERATING THE TRUCK AND PROXIMATELY CAUSED THE PLAINTIFFS’ INJURIES.
“We, the jury, find in favor of the plaintiffs on this claim and against the defendants, Charles Quada and Jones Express, Inc.
Foreperson
“CLAIM 2: THAT THE DEFENDANT, JONES EXPRESS, INC., WAS NEGLIGENT IN THE HIRING, SUPERVISION OR RETENTION OF CHARLES QUADA AND PROXIMATELY CAUSED THE PLAINTIFFS’ INJURIES.
“We, the jury, find in favor of the plaintiffs on this claim and against the defendant, Jones Express, Inc.
Foreperson
“CLAIM 3: THAT THE DEFENDANT, JONES EXPRESS, INC. NEGLIGENTLY ENTRUSTED ITS VEHICLE TO CHARLES QUADA AND PROXIMATELY CAUSED THE PLAINTIFFS’ INJURIES.
“We, the jury, find in favor of the plaintiffs on this claim and against the defendant, Jones Express, Inc.
Foreperson”

(Capitalization in original.) The trial court further instructed the jury that, as to each claim, if it was satisfied of the truthfulness of the claim, or if the verdict form represented its verdict, the foreperson should sign his or her name under the applicable claim. The verdict form also provided a space for the jury to designate an award of damages.

As to the second form, titled “Defendants’ Verdict,” the trial court instructed:

“Now, ladies and gentlemen, after a full and fair consideration of all of the evidence, if you find for the defendants on all claims, then you would use the separate verdict form that says Defendants’ Verdict and reads: We, the jury, find in favor of the defendants and against the plaintiffs on all claims. And it would be signed by your foreperson, and you would be ready to report your verdict.’ ”

Unlike the plaintiffs verdict form, this form did not provide the jury the opportunity to render a verdict in favor of the defendants on each individual claim or in favor of an individual defendant.

After deliberations, the jury returned the “Plaintiffs Verdict” form with the foreperson’s signature under the negligent hiring, retention, and supervision claim, as well as an award of $600,000 in compensatory damages and $100,000 in punitive damages. On April 25, 2007, the trial court entered a judgment in favor of the Jacksons and against Jones Express based on that verdict:

“In accordance with the jury’s verdict returned in this action on this date, it is hereby ORDERED AND ADJUDGED by the Court that a judgment be, and hereby is, entered in favor of the plaintiffs, Edward E. Jackson and Jackie Jackson, and against the defendant, Jones Express, Inc., for compensatory damages in the amount of $600,000.00 and for punitive damages in the amount of $100,000.00, awarding total damages in the sum of $700,000.00, plus the costs of court, for which let execution issue.”

Jones Express filed a renewed motion for a JML; a motion to alter, amend, or vacate the judgment entered on the jury’s verdict; and a motion for a new trial. The trial court denied those motions, and Jones Express appealed (case no. 1070066).

On June 26, 2008, this Court, noting that the trial court’s April 25, 2007, order did not indicate that a judgment had been entered with respect to the claims against Quada or Alfa and, thus, that the judgment appealed from appeared to be nonfinal, remanded the case for the trial court (1) to certify the judgment in favor of the Jack-sons against Jones Express as a final judgment pursuant Rule 54(b), Ala. R. Civ. P.; (2) to adjudicate the remaining claims, thus making the judgment final and ap-pealable; or (3) to do nothing, in which case the appeal would be dismissed as being from a nonfinal judgment.

On July 2, 2008, on remand, the trial court entered a judgment restating its April 25, 2007, judgment in favor of the Jacksons and against Jones Express on the negligent hiring, retaining, and supervising claim. The trial court also entered a judgment in favor of Quada, Jones Express, and Alfa on all the Jacksons’ remaining claims.

According to the record in case no. 1090663, on August 1, 2008, the Jacksons filed a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the trial court’s July 2 order. They argued, among other things, that the jury had not rendered a verdict in favor of Quada and that the trial court’s July 2 ruling in favor of Quada was “in conflict” with the jury’s finding against Jones Express. On August 4, 2008, Jones Express filed in this Court a motion to stay the appeal in case no. 1070066 pending resolution of the Jacksons’ motion, contending that a cross-appeal by the Jack-sons may result or that the issues raised by Jones Express on appeal may be impacted. This Court granted the motion to stay.

On August 22, 2008, the trial court issued an order vacating its July 2, 2008, order. The court, referencing the Jack-sons’ postjudgment motion and its failure to hold a hearing or to give the parties an opportunity to address this Court’s remand order, held that it “should have allowed the appeal to be dismissed as from a non-final judgment and then addressed the remaining issues and claims after receiving input from all parties.” The trial court therefore vacated the July 2 order. After a hearing, the trial court issued an order on November 12, 2008, finding, specifically, that Alfa was not liable to the Jacksons and then stating:

“Under the circumstances as shown by the disputed evidence presented during the trial of this case, the question of liability on the part of the defendant, Charles D. Quada, the driver of the tractor-trailer, hinged on the jury’s answer to these simple questions: did he run the red light or did Joshua Jackson run the red light at the intersection where the collision occurred? Having considered its instructions to the jurors, the separate and independent claims they were allowed to consider during their deliberations and their verdict, it is ordered that the Judgment entered in this case on April [25], 2007, constitute an adjudication of liability against the defendant, Charles D. Quada, as well as against his employer, Jones Express, Inc., with damages assessed only against the latter.
“For the reasons stated above, the undersigned determines that no claims, rights or liabilities remain to be adjudicated in this case and that a final judgment be, and hereby is, entered.”

This Court again remanded the case, holding that it was unclear how the trial court’s November 12 order disposed of the claim against Quada. In an order dated January 26, 2010, the trial court entered the following judgment:

“(1) A judgment is entered in favor of the defendant, ALFA Mutual Insurance Company (ALFA’), and against the plaintiffs, separately and severally, on all of their claims against ALFA for uninsured or underinsured motorist benefits.
“(2) A judgment is entered in favor of the defendant, Charles D. Quada (‘Qua-da’), and against the plaintiffs, separately and severally, on their claim of damages alleged against Quada, individually, for negligence.
“(3) A judgment is entered in favor of the defendant, Jones Express, Inc. (‘Jones Express’), and against the plaintiffs, separately and severally, on their claim of damages against Jones Express under a theory of respondeat superior in connection with the claim of negligence against Quada.
“(4) A judgment is entered in favor of the defendant, Jones Express, and against the plaintiffs, separately and severally, on their claim of damages alleged against Jones Express for negligent entrustment.
“(5) A judgment is entered in favor of the plaintiffs, Edward E. Jackson, Sr., and Jackie Jackson, and against the defendant, Jones Express, for compensatory damages in the amount of $600,000.00 and for punitive damages in the amount of $100,000.00, awarding total damages in the sum of $700,000.00, plus costs, on the plaintiffs’ claim of damages alleged against Jones Express for negligent hiring, retention and supervision.”

Subsequent to this order, the Jacksons filed a separate appeal that was assigned case no. 1090663. We will consider the Jacksons’ appeal in case no. 1090663 as a cross-appeal and consolidate it with case no. 1070066 for purposes of issuing one opinion.

Discussion

On appeal, Jones Express contends that the jury’s verdict was inconsistent because it found Jones Express liable for negligently hiring, retaining, and supervising Quada, despite the fact that it also entered a verdict “exonerating” Quada of any wrongdoing. The Jacksons, on the other hand, argue that the trial court erred in entering a judgment in favor of Quada on the negligence count. In the alternative, they argue that, if the trial court did not err in entering the judgment for Quada on the negligence count, the verdict is inconsistent and a new trial is warranted.

A verdict has been described as “inconsistent” when the jury “inconsistently resolved the same issue in two separate counts,” State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 319 (Ala.1999), when the verdict appears to be “the result of confusion,” City of Bessemer v. Foreman, 678 So.2d 759, 760 (Ala.1996), or when the record in a case does not reveal a situation in which the jury’s decisions can coexist, Ex parte Alfa Mut. Ins. Co., 799 So.2d 957, 962 (Ala.2001). See also Smith v. Richardson, 277 Ala. 389, 391, 171 So.2d 96, 97 (1965) (stating that differing verdicts on separate but identical claims filed by separate parties were “clearly inconsistent, having been rendered at the same time by the same jury, on identical facts, [and having] render[ed] speculative what the jury intended by its verdicts. Patently, the verdicts indicate confusion on the part of the jury.”). When a jury verdict is inconsistent, the proper remedy is a new trial. Bessemer, 678 So.2d at 760. This is so because “any attempt to reconcile the inconsistencies in a verdict must be based on mere speculation about the jury’s intent.” Id.; see also A.L. Williams & Assocs., Inc. v. Williams, 517 So.2d 596, 598 (Ala.1987) (“Where the jury verdict is the result of confusion or is inconsistent in law, the trial court should grant a new trial. A new trial is necessary, because once the jury is dismissed any attempt to reconcile the inconsistencies in a verdict amounts to mere speculation about the jury’s intent.” (citation omitted)).

It has been stated generally that, in order for an employer to be liable for the negligent hiring, training, retention, and supervision of its employee, the plaintiff must also prove “wrongful conduct” on the part of the employee. University Fed. Credit Union v. Grayson, 878 So.2d 280, 291 (Ala.2003) (“[A] party alleging negligent supervision and hiring must prove the underlying wrongful conduct of the defendant’s agents.”); Voyager Ins. Cos. v. Whitson, 867 So.2d 1065, 1073 (Ala.2003) (“A party alleging negligent or wanton supervision and hiring must also prove the underlying wrongful conduct of employees.”); see also Stevenson v. Precision Standard, Inc., 762 So.2d 820 (Ala.1999) (holding that a jury verdict against an employer based on negligent training and supervision of a supervisor who allegedly sexually harassed a fellow employee could not stand where the jury also exonerated the supervisor); Smith v. Boyd Bros. Transp., Inc., 406 F.Supp.2d 1238, 1248 (M.D.Ala.2005) (“Under Alabama law, the finding of underlying tortious conduct is a precondition to invoking successfully liability for the negligent or wanton training and supervision of an employee.”); and Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F.Supp.2d 1314, 1320 (N.D.Ala.2002) (“In order to establish a claim against an employer for negligent supervision, training, and/or retention, the plaintiff must establish that the allegedly incompetent employee committed ... [a] tort.”).

Jones Express, citing Stevenson v. Precision Standard, Inc., supra, alleges that the jury’s failure to find Quada liable for negligence conflicts with the verdict in favor of the Jacksons on their negligent hiring, retention, and supervision count against Jones Express. In Stevenson, the plaintiff, Stevenson, brought an action against her employer, Pemco, and her former supervisor at Pemco, Windsor, alleging invasion of privacy and negligence and/or wantonness based upon Windsor’s alleged sexual harassment. The jury returned a verdict against Pemco but exonerated Windsor from any liability.

On appeal, Pemco contended that the verdict was inconsistent and due to be set aside. Stevenson countered that a verdict for an employee and against an employer is inconsistent only when the employer’s liability is based solely on the theory of respondeat superior. In her case, Stevenson argued that she asserted “independent claims” against Pemco alleging negligence and wantonness, specifically, that Pemco had acted negligently or wantonly in supervising or training its employees, a cause of action that was recognized in Big B, Inc. v. Cottingham, 634 So.2d 999 (Ala.1993). This Court distinguished Big B, however, noting that the cause of action in that case “was predicated on the underlying tortious conduct of an employee ... who at trial admitted wrongdoing.” 762 So.2d at 824. This Court further noted the holding in Potts v. BE & K Construction Co., 604 So.2d 398 (Ala.1992), that an employer could be liable for the intentional torts of its agent if the employer participated in, authorized, or ratified the wrongful acts, but that to prove such liability one must demonstrate, among other things, “the underlying tortious conduct of an offending employee...” 762 So.2d at 824. We concluded:

“Under this Court’s holdings in Big B and Potts, the only means of attaching liability to Pemco would be to prove wrongful conduct by Windsor as its agent. But, Pemco simply cannot be held liable for authorizing or ratifying conduct that, according to the jury, did not occur. Accordingly, a verdict against Pemco based on a finding of negligent training and supervision would be inconsistent with a verdict exonerating Windsor.”

Stevenson, 762, So.2d at 824-25.

As Stevenson and Big B demonstrate, and as the additional authorities cited above indicate generally, implicit in the tort of negligent hiring, retention, training, and supervision is the concept that, as a consequence of the employee’s incompetence, the employee committed some sort of act, wrongdoing, or tort that caused the plaintiffs injury. Humana Med. Corp. of Alabama v. Traffanstedt, 597 So.2d 667, 669 (Ala.1992) (holding that it was “inherently inconsistent from a proximate cause standpoint” for a jury to hold that a physician was not negligent in performing surgery but to also hold the hospital liable based on its “independent negligence” in failing to supervise and monitor that physician). Cf. Bonds v. Busler, 449 So.2d 244, 245 (Ala.Civ.App.1984) (“We find it settled law in this state that though an entrustor may be guilty of negligent entrustment of a vehicle to an incompetent driver, he may not be held liable for such negligence unless the injury is proximately caused by the incompetence of the entrustee.”); Lane v. Central Bank of Alabama, N.A., 425 So.2d 1098, 1100 (Ala.1983) (noting that, in a cause of action against a master based upon the incompetence of the servant, the plaintiff must show, among other things, that he has been damaged by the acts of the servant and that the damage occurred because of incompetency on the servant’s part); and First Nat’l Bank of Montgomery v. Chandler, 144 Ala. 286, 307, 39 So. 822, 828 (1905) (“ ‘It is understood, of course, that the incompetency of the servant in all cases, in order to charge the master, was the proximate cause of the injury.’ ” (quoting Bailey on Master’s Liability for Injuries to Servants, 47, 54, 70)).

The Jacksons argue that their negligent hiring, retention, and supervision claim is an “independent” tort that did not depend on a finding of negligence in the underlying tort claim against Quada. Further, the Jacksons correctly note that the jury was presented with substantial evidence for each element of the negligent hiring, retention, and supervision claim as instructed by the trial court: (1) that Quada was an incompetent driver, (2) that Jones Express knew or reasonably should have known that Quada was an incompetent driver, (3) that Jones Express failed to exercise reasonable care in hiring, retaining, or supervising Quada after being placed on notice that he was an incompetent driver, and (4) that Jones Express’s negligence was the legal or proximate cause of injuries suffered by Edward and Joshua.

However, the issue presented on appeal is not whether there was a failure to prove the elements of the negligent hiring, retention, and supervision claim as instructed by the trial court; instead, the issue is whether the jury’s verdict against Jones Express is inconsistent with its failure to find Quada liable for negligence in the very same factual situation that caused Edward’s and Joshua’s injuries. In other words, does the verdict indicate that the jury inconsistently resolved the same issue in two different counts or that it was otherwise confused?

The dispositive question presented to the jury in this case, according to the parties and the trial court, was who ran the red light at the intersection — Quada or Joshua. As the trial court noted in its order denying Jones Express’s post-judgment motions, “the [Jacksons] and Jones Express recognize that liability in this case centered on the jury’s factual determination as to whether Quada or Joshua ran the red light.” Further, the trial court instructed the jury that “it is negligence as a matter of law for a motor vehicle to run a red light that is exhibited by a traffic control device.”

Thus the inconsistency in this case arises because of the jury’s apparently un-reconeilable resolution of the dispositive issue: whether Quada ran the red light. This was the sole act of negligence alleged against Quada and the sole act of incompetency or wrongdoing on Quada’s part as an employee of Jones Express that allegedly caused the Jacksons’ injury under their negligent hiring, retention, and supervision claim. It is inconsistent for the jury to conclude, on the one hand, that Quada ran the red light for purposes of the negligent hiring, retention, and supervision claim against Jones Express, but then not to render a verdict in favor of the Jacksons on their negligence claim against Quada.

Both sides attempt to address this inconsistency. Jones Express argues that the jury’s failure to find that Quada was negligent indicates that it did not find that he ran the light (Jones Express’s brief, at 28); the Jacksons, on the other hand, ai'-gue that Quada “was necessarily found guilty of running the red light in this case because the jury rejected contributory negligence.” Although both theories are reasonable theories by which to address the inconsistency in the jury’s decision, both theories engage in speculation as to the jury’s intent. The jury could have found that Quada was negligent but failed to indicate that on the jury form, or the jury could have found that he acted negligently but attempted to impose liability only on Jones Express. As this Court once stated in a case discussing an inconsistent verdict in which a jury exonerated an employee’s conduct but also attempted to find the employer liable for that conduct: “Such a verdict on its face discloses that the jury has misconceived the issues, or was prompted by bias against the employer or in favor of the employee.” Carter v. Franklin, 234 Ala. 116, 118, 173 So. 861, 863 (1937). Instead of engaging in speculation in an attempt to reconcile the jury’s decision, we simply hold that it is inconsistent.

In its order denying Jones Express’s postjudgment motions, the trial court relied on Luker v. City of Brantley, 520 So.2d 517, 518 (Ala.1987), and held that the negligent hiring, retention, and supervision claim was an “independent” tort and that, under Luker, the trial court needed only to “resolve the question of whether the evidence supported a claim against [Jones Express] for its independent negligence. Only if such a claim was not sustained by the evidence could [it] grant a new trial for the apparent inconsistency.” 520 So.2d at 523.

In Luker, the plaintiff, Luker, sued the City of Brantley (“the City”) and two police officers employed by the City, Ennis and Armstrong, for releasing an automobile to an intoxicated driver, Patrick, who later caused an accident in which the plaintiffs decedent was killed. Luker sued En-nis and Armstrong on claims of negligence and negligent entrustment and sued the City, alleging that it “had negligently failed to instruct these officers as to the proper manner in which to enforce the laws regarding intoxicated individuals.” Luker, 520 So.2d at 518. The jury returned a verdict against the City but in favor of the officers. The City moved for a judgment notwithstanding the verdict (“JNOV”), which the trial court granted, setting aside the verdict against the City. Luker appealed from the JNOV.

On appeal, the City argued that the JNOV in its favor was proper because, it said, the jury’s verdict was inconsistent. This Court reversed the JNOV in favor of the City, reasoning that a JNOV was not appropriate because the City was not entitled to a directed verdict at the conclusion of the evidence based on jury issues as to vicarious liability. Further, despite the jury’s verdict in favor of the officers, this Court appeared to assume that the officers acted negligently:

“Our decision that the actions of [the officers,] in and of themselves, constitute negligence ... pretermits discussion of whether, in a particular case, the actions of the officers’ superiors in failing to enroll them in the required minimum standards training programs could be considered the proximate cause of injury. Whether or not [the officers] had this training, it is clear that they acted negligently in allowing Patrick, under the circumstances of this case, to operate the automobile in an intoxicated state.”

520 So.2d at 520.

On rehearing, this Court attempted to clarify the scope of its order remanding the case for a determination as to whether a new trial was appropriate based on alleged inconsistent verdicts. The Court stated:

“We held that there was evidence that the officers were negligent while acting in the line and scope of their duty and, thus, that the City could have been held vicariously liable; therefore, the City’s judgment notwithstanding the verdict was reversed. The jury verdict for the officers and against the City could not be reconciled if the only claim against the City was predicated on the underlying negligence of the officers. Apparently, however, the plaintiff also pursued a claim against the City for its independent negligence in improperly training the officers.
“Before the trial court can grant a new trial based upon the apparent inconsistency of the verdicts, it must resolve the question of whether the evidence supported a claim against the City for its independent negligence. Only if such a claim was not sustained by the evidence could the trial court grant a new trial for the apparent inconsistency....
“If the trial court resolves these two issues favorably to the plaintiff, the appropriate action will be the reinstatement of the verdict and the judgment entered thereon. Otherwise, the trial court will grant a new trial, specifying the grounds made the basis of its new trial order.”

Luker, 520 So.2d at 523.

Luker appears to hold that a new trial based on the inconsistency of the verdict was warranted in that case only if the evidence did not support the improper-training claim. If such evidence had been presented, then the trial court was required to enter a judgment against the City alone based on the jury verdict. Id.

This analysis differs from our subsequent holding in Stevenson, supra. There, we examined whether the evidence, under the employee’s “independent” claims against the employer, Pemco, could support the judgment against Pemco “while simultaneously absolving” the supervisor, Windsor, “of any wrongdoing.” Stevenson, 762 So.2d at 824. We held, as noted above, that Pemco could not be liable for conduct that, according to the jury, did not occur. Further, the evidence did “not support a judgment against Pemco on any theory other than respondeat superior.” 762 So.2d at 827. However, the judgment entered on the jury’s verdict in favor of Windsor was not appealed and became final; “therefore, the doctrine of res judi-cata bar[red] a new trial on the issue of Windsor’s liability.” Stevenson, 762 So.2d at 827. Because Windsor, as the employee, could no longer be held liable for the tort claims asserted against him, Pemco could not be held liable under the doctrine of respondeat superior and was thus entitled to a judgment in its favor:

“[Bjecause Stevenson did not appeal from the judgment in favor of Windsor, that judgment has become final; therefore, the doctrine of res judicata bars a new trial on the issue of Windsor’s liability. Because the judgment against Windsor must stand, a judgment must be entered in favor of Pemco. See de Feliciano v. de Jesus, 873 F.2d 447 (1st Cir.1989)(in light of an inconsistent verdict, corporate codefendant was held entitled to a judgment, where plaintiffs did not appeal from judgment in favor of codefendant president of corporation); see, also, United Steelworkers of America AFL-CIO-CLC v. O’Neal, 437 So.2d 101, 103 (Ala.1983) (on a claim directly against an agent, and against the principal solely on the theory of respondeat superior, ‘a verdict in favor of the agent works an automatic acquittal of the principal so that [the] verdict against [the principal] must be set aside’); and Perry v. Costa, 97 A.D.2d 655, 469 N.Y.S.2d 193 (1983) (doctrine of res judicata barred new trial on question of employer’s liability, based on final judgment in favor of employee; judgment against employer reversed).”

762 So.2d at 827 (footnote omitted).

The plaintiff in Luker did not appeal the judgment entered on the verdict in favor of the employees/officers; however, the Luker Court failed to recognize the significance of this omission. Had the Court done so it would have been obliged to affirm the trial court’s order entering a JNOV in favor of the City/employer based on the alternative ground that the failure of proof on the essential element of negligence of the employees/officers had become res judicata on that issue. Instead, the Luker Court recognized a right to a jury verdict against the City for improper training in terms consistent with an independent action against the City, regardless of the fact that the jury rendered a verdict in favor of the employees/officers on the negligence claim against them. Such a result is erroneous and inconsistent with Stevenson, which sub silentio overruled Luker.

Having determined that the jury’s verdict here was inconsistent, we must decide the correct disposition of these appeals. Jones Express maintains that the judgment on the negligent hiring, retention, and supervision count is due to be reversed and that it is entitled to a judgment in its favor. Specifically, in its brief in case no. 1070066, which was filed before this Court remanded the case and before the trial court entered its January 26, 2010, final judgment, Jones Express argued that Quada had been “exonerated” by the jury on the negligence count. A new trial on this count, which is an essential element of the negligent hiring, retention, and supervision claim against Jones Express was not possible because the judgment in Quada’s favor had not been appealed. Because the issue of Quada’s liability could not be retried, Jones Express argued, it was entitled, under Stevenson, to a judgment rendered in its favor.

However, under the peculiar facts of this case, the Jacksons could not have maintained an appeal from the trial court’s November 12, 2008, order because it was not final and because it did not actually evidence a judgment in Quada’s favor. Instead, the trial court’s January 26, 2010, judgment was the first final judgment in Quada’s favor on the negligence count, and the Jacksons have appealed from that judgment. In their brief in case no. 1070066, the Jacksons maintain that, if the jury’s verdict in this case is considered inconsistent, then the proper remedy is actually a new trial. We agree.

Conclusion

The judgment against Jones Express on the negligent hiring, retention, and supervision claim and the judgment in favor of Quada on the Jacksons’ negligence claim are reversed, and the case is remanded for a new trial. Bessemer, 678 So.2d at 760; A.L. Williams & Assocs., Inc., 517 So.2d at 598.

1070066 — ON REHEARING EX MERO MOTU: OPINION OF JUNE 80, 2010, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

1090663 — REVERSED AND REMANDED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

      . Jacqueline F. Jackson is sometimes referred to as "Jackie Jackson" in the record below.

      . In its brief filed in case no. 1090663, Jones Express contends that the April 25, 2007, order was in fact a final judgment. Specifically, Jones Express argues that a jury's verdict in favor of a plaintiff with respect to some defendants but silent with regard to other defendants should be considered as equivalent to a verdict in favor of those defendants. However, although the trial court may have entered a judgment on the jury’s verdict against Jones Express on the negligent hiring, retention, and supervision claim, the order does not specify a judgment in favor or against Quada or Alfa on the other claims in this case.

      . In its brief filed in case no. 1090663, Jones Express contends that the August 22 order was not entered in response to the Jacksons’ Rule 59(e) motion but was instead a sua sponte order that the trial court had no jurisdiction to issue. However, it is clear from the trial court's order that it was in response to the issues raised in the Jacksons’ motion.
      Jones Express also contends that the trial court’s actions in vacating its July 2 order and holding a hearing violated this Court’s appellate mandate. However, this Court's order of June 28, 2008, gave the trial court the option of certifying a final judgment, adjudicating the remaining claims, or allowing its judgment to remain nonfinal. The trial court initially chose to adjudicate the remaining claims, but, in response to a timely post-judgment motion challenging the propriety of that selection, the trial court vacated its decision and chose the third option. This did not violate this Court's mandate; in fact, this Court stayed the appeal — at Jones Express's request- — to allow the trial court to exercise its options in response to the postjudgment motion.

      . We express no opinion as to whether the trial court correctly instructed on the elements of a claim of negligent hiring, retention, and supervision.

      . Jones Express contends: “At issue before the jury was the determination as to which of the vehicles had the right of way at the traffic light at the time of the collision, and which of the vehicles did not.” Jones Express’s brief, at 9; see also the Jacksons’ brief, at 25 (quoting same).

      . The trial court engaged in similar speculation in apparently concluding in its November 12, 2008, order that the verdict on the negligent hiring, retention, and supervision claim amounted to a finding by the jury of liability against both Quada and Jones Express, but that the jury intended to assess damages against only Jones Express.

      . A motion for a JNOV is now designated, under Rule 50(b), Ala. R. Civ. P., as a renewed motion for a JML. Vaughan v. Oliver, 822 So.2d 1163, 1170 (Ala.2001).

      . Under the doctrine of respondeat superior, "a principal is liable for the tort of his agent if the agent commits the tort while acting within the scope of his employment. If the agent is not liable for any tort, the principal is also absolved.” Latham v. Redding, 628 So.2d 490, 495 (Ala.1993) (citation omitted).

      . Because of our resolution of this case, we pretermit discussion of the remaining issues raised on appeal.