author: ROBERTS, J.,

text:
    Kenneth Joe MIXON, Appellant/Cross-Appellee v. GREYWOLF DRILLING COMPANY, LP and Employers Insurance of Wausau/Liberty Mutual, Appellees/Cross-Appellants.
    No. 2009-WC-01536-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.
    Rehearing Denied May 31, 2011.

      Eve Gable, Hattiesburg, attorney for appellant.
    John S. Gonzalez, Gulfport, attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Kenneth Joe Mixon was working as a floorhand on a land-based oil rig operated by Greywolf Drilling Company when a storm blew in. Lightning struck somewhere close to or on the rig while Mixon was in the process of disassembling the rig in order to move it, and he felt electricity go through his body. Over the next several days, Mixon’s shoulders began to hurt, and he subsequently filed a petition to controvert with the Mississippi Workers’ Compensation Commission. His injuries were found to be compensable. However, Mixon now appeals and argues that the Commission erred in assessing the degree of disability as a result of his injuries, the amount of his weekly wage at the time of the incident, and other issues. Greywolf cross-appeals and argues that the Commission erred in finding that Mixon suffered a compensable injury. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Mixon, who was fifty years old at the time, was the sole live witness to testify at the hearing before the Administrative Judge on March 14, 2008. He stated that on June 4, 2001, he was working for Grey-wolf as a floorhand on a land-based oil rig in Magee, Mississippi. Mixon’s typical schedule was twelve hours a day, seven days on/seven days off. The accident occurred on the fifth day of a seven-day stretch. Mixon stated that he had incurred some other injuries in the past, but none that involved his shoulders.

¶ 3. Mixon testified that he and other employees of Greywolf were taking apart the oil rig in order to move it. In order to be able to reach the components necessary to take the oil rig apart, Mixon had to stand over a drainage pit that had begun to overflow due to a rain storm that had developed. Although there was a pump designed to prevent the drainage pit from overflowing, Mixon testified that the pump had been broken since the day he started his shift. Mixon stated that he was on his hands and knees with one hand in the water holding the back side of a bolt and the other hand was unscrewing the nut. Mixon testified that “all of a sudden, it’s like I could hear the crack and I just felt it just run right though both of my hands, right though my chest. I felt the electricity.” Mixon stated that “it kind of, I want to say, drove me back or whatever.” At this point, the group stopped working and went to lunch. However, Mixon testified that during lunch his vision was hazy, and he experienced uncontrollable shaking. As a result of these symptoms, Mixon was taken to the emergency room at Magee General Hospital.

¶ 4. Mixon was seen by Dr. Kelly Smith and admitted to the hospital overnight. Dr. Smith initially told Mixon not to go back to work until a follow-up examination was done. However, Mixon testified that because Greywolf did not want a “loss-time accident,” it requested that Dr. Smith allow him to come back to work. Dr. Smith obliged Greywolf, and he allowed Mixon to return to work on a limited basis. The next day, Mixon returned to work, and Greywolf allowed him to do light-duty work, such as cleaning the living quarters, washing clothes, and washing dishes.

¶ 5. At the conclusion of his seven-day shift, Mixon returned home. However, Mixon testified that the next day his right shoulder began hurting, and he went to see Dr. Lisa Bushhardt at Immediate Care in Hattiesburg, Mississippi. Mixon saw a number of doctors over the course of several years relating to injuries he claimed he had received as a result of the incident on the oil rig. The details of these consultations and findings of the physicians will be discussed below. However, at this point, Greywolf refused to authorize further medical treatment. Greywolf also terminated Mixon’s employment on the day after the incident. Furthermore, Mix-on testified that although he remained off work per his doctor’s directive, Mixon received notice from Greywolf that his group health insurance had been cancelled.

¶ 6. Although he had not yet been released to work by his doctors, Mixon began working odd jobs in order to sustain himself. Mixon testified that he had to quit a job bagging groceries because he could not pick up certain items. In 2002, he started on a part-time basis on the Tommy Munro, the University of Southern Mississippi’s research vessel. Mixon testified that his position on the Tommy Munro was supervisory in nature. In 2004, Mixon’s secured a full-time position with the Tommy Munro. However, Mix-on testified that he would be making approximately $20,000 more a year if he was still able to do heavy manual labor.

¶ 7. During cross-examination, Mixon expounded on his work history. Mixon testified that he was in the United States Air Force from 1976 to 1980, during which time he worked as a mechanic. During approximately the next two years, Mixon worked as a bank teller for six months, a security guard for three months, a truck driver for one-and-a-half years, and on the North Slope of Alaska as an oil hand. Mixon then moved to Florida and worked for a company making circuit boards for six weeks. At this point, he began working in the landscaping and construction fields in Mississippi. But that only lasted for approximately six to eight months. Mixon then attended junior college for a semester, but because of financial considerations, he returned to commercial construction. He worked in this field for approximately two years. Mixon then worked offshore in Louisiana for a period of time, then performed residential construction for approximately two years, and worked on a land-based oil rig for approximately two years. Mixon also cut grass at a golf course in Petal, Mississippi, and worked on a charter boat out of Biloxi, Mississippi. He began working for Grey-wolf on February 21, 2001.

¶ 8. Mixon testified that it was approximately 11:00 a.m. when the incident occurred. Mixon stated that he did not actually see the lightning strike the oil rig, but he heard the crack of the lightning and was “jolted up,” let go of the rig, and stepped back several steps. Mixon stated that he felt pain going through his hand, arm, and chest. He testified that he was shaking involuntarily, and after his boss asked him if he needed to go to the emergency room, he went.

¶ 9. Following the onset of his injuries, Mixon filed a petition to controvert with the Commission on August 10, 2001, claiming injuries to his heart, shoulders, body as a whole, and other injuries. The AJ found that Mixon had sustained a compensable injury and that he was entitled to disability benefits for 70% loss of use of his upper extremities. Additionally, the AJ determined that Mixon’s average weekly wage was $1,290. Greywolf appealed to the Commission. The Commission affirmed the finding of a compensable injury, but it reduced the loss of use to 25% and the average weekly wage to $607.88. Mixon appealed to the Circuit Court of Simpson County. Greywolf also filed a cross-appeal with the circuit court. However, the Commission’s order was affirmed on August 28, 2009. Mixon appealed and raises the following issues:

I.WHETHER THE COMMISSION ERRED IN FINDING MIXON SUSTAINED A TWENTY-FIVE PERCENT LOSS OF USE
II. WHETHER THE COMMISSION ERRED IN CALCULATING MIXON’S AVERAGE WEEKLY WAGE
III. WHETHER ADDITIONAL INSURANCE CARRIERS SHOULD BE HELD ACCOUNTABLE

Additionally, on cross-appeal, Greywolf argues that the Commission erred in finding a compensable injury. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 10. The standard of review to which an appellate court must adhere when reviewing a decision of the Workers’ Compensation Commission is clear. The Mississippi Supreme Court has held:

The standard of review in workers’ compensation cases is limited. The substantial evidence test is used. See Walker Mfg. Co. v. Cantrell, 577 So.2d 1248, 1245-47 (Miss.1991). The Workers’ Compensation Commission is the trier and finder of facts in a compensation claim. [An appellate court] will overturn the Workers’ Compensation Commission decision[s] only for an error of law or an unsupported finding of fact. Georgia Pac. Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991). Reversal is proper only when a Commission[s] order is not based on substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law. Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992).

Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778 (¶ 6) (Miss.2003). Furthermore, as is always the case, questions of law receive a de novo review. Short v. Wilson Meat House, LLC, 36 So.3d 1247, 1251 (¶ 23) (Miss.2010). Finally, Mississippi Workers’ Compensation Law “is construed liberally, and doubtful cases are to be resolved in favor of compensation so that the beneficent purposes of the act may be achieved.” Robinson v. Packard Elec. Div., 523 So.2d 329, 332 (Miss.1988) (citations omitted).

DISCUSSION

I. WHETHER THE COMMISSION ERRED IN FINDING MIXON SUSTAINED A TWENTY-FIVE PERCENT LOSS OF USE

¶ 11. Mixon argues that the Commission erred in (1) adjusting downward the amount of disability determined by the AJ and (2) basing its determination on an incorrect application of the law. Mixon argues that based primarily upon the supreme court’s holding in Meridian Prof'l Baseball Club v. Jensen, 828 So.2d 740 (Miss.2002), the Commission should have awarded him 100% total occupational loss.

¶ 12. We begin our analysis of this issue by noting that an appellate court reviews the Commission’s findings and decision for error without regard to the independent findings of the AJ or circuit court. Short, 36 So.3d at 1250 (¶ 16). The supreme court has held that:

where a permanent partial disability renders a worker unable to continue in the position held at the time of injury, we hold that such inability creates a rebuttable presumption of total occupational loss of the member, subject to other proof of the claimant’s ability to earn the same wages which the claimant was receiving at the time of injury. The presumption arises when the claimant establishes that he has made a reasonable effort but has been unable to find work in his usual employment, or makes other proof of his inability to perform the substantial acts of his usual employment. Rebuttal is shown by all the evidence concerning wage-earning capacity, including education and training which the claimant has had, his age, continuance of pain, and any other related circumstances.

Meridian Prof'l Baseball Club, 828 So.2d at 747-48 (¶ 21) (emphasis added). Further, the supreme court defined “usual employment” as:

broader in scope than the job held at the time of the injury, and narrower than “other employment” as contained in § 71 — 3—3(i). Usual employment in this context means the jobs in which the claimant has past experience, jobs requiring similar skills, or jobs for which the worker is otherwise suited by his age, education, experience, and any other relevant factual criteria.

Id. at 747 (¶ 20). Given the supreme court’s definition of “usual employment,” it is clear that the presumption arises only when the claimant demonstrates that he has been unable, despite reasonable attempts, to find suitable employment based upon the factors above. This interpretation was applied in the supreme court’s holding in Weatherspoon.

¶ 13. In its order, the Commission cited Meridian Baseball and Weatherspoon in deciding to lower Mixon’s occupational disability rating. However, it did not mention the language cited above from Meridian Baseball regarding the presumption of 100% occupation disability rating. Nevertheless, the Commission found that, “according to [Mixon], his past experience on charter fishing boats, as well as his past experience in the Air Force and in the oil field working on motors, has contributed to his successful tenure on the Tommy Monroe [sic].” Based upon this language, we cannot agree with Mixon’s argument that the Commission failed to apply the applicable law. It is clear that the Commission found that Mixon had been working in a field of his usual employment, as that term was defined in Meridian Baseball. As such, the Meridian Baseball presumption did not arise. Furthermore, we held in Hill v. Mel, Inc., 989 So.2d 969, 972 (¶ 14) (Miss.Ct.App.2008), “that the ability to earn post-injury wages, even significantly diminished post-injury wages, defeats a claim of permanent total disability.” As such, we find that this issue is without merit.

¶ 14. Because the presumption did not arise, we now examine the Commission’s reduction of the amount of disability determined by the AJ, and we find no fault in the Commission’s reduction of the AJ’s determination of Mixon’s occupational disability rating. Or, as stated in terms of our standard of review, we find that the Commission’s determination of Mixon’s occupational determination is supported by substantial evidence.

¶ 15. “ ‘Disability5 means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.” Miss.Code Ann. § 71—3—8(i) (Rev. 2000). This definition refers to an occupational disability rather than to a medical disability. Marshall Durbin, Inc. v. Hall, 490 So.2d 877, 880 (Miss.1986). A worker injured in the course and scope of her employment is “entitled to compensation to the extent that [s]he has been incapacitated to earn wages.” Id. Benefits for a claimant’s permanent total disability are available under section 71-3-17(a) (Rev. 2000); benefits for permanent partial disability are governed by section 71-3-17(c) (Rev.2000).

¶ 16. Mixon was assigned a six percent medical impairment to each arm. In determining whether loss of use of a scheduled-member is total or partial for wage-earning purposes, the Commission should consider “the evidence as a whole, including the testimony of the [claimant] and the other witnesses who testified during the hearing concerning the [claimant’s] ability to use the arm for wage earning purposes after the injury.” McGowan v. Orleans Furniture, Inc., 586 So.2d 163, 167 (Miss.1991) (citation omitted). Factors that should be “considered in determining loss of wage earning capacity include the amount of education and training which the claimant has had, his inability to work, his failure to be hired elsewhere, the continuance of pain, and any other related circumstances.” McGowan, 586 So.2d at 167.

¶ 17. Despite assigning a six percent medical impairment to each of Mixon’s arms, the Commission considered the factors mentioned above in determining that Mixon’s occupational loss was a greater amount. In arriving at its conclusion, the Commission considered Mixon’s long-term employment aboard the Tommy Munro, his work experience and training, his success in his employment aboard the Tommy Munro, and Mixon’s weekly wages at the time of trial. The Commission stated that while Mixon did suffer from some occupational loss, “this loss is not total as the Claimant argues because he has returned to work on a full time basis performing work for which he is qualified by training and experience, and work which still requires the use of his arms to some degree.” We agree and find that this issue is without merit.

II. WHETHER THE COMMISSION ERRED IN CALCULATING MIXON’S AVERAGE WEEKLY WAGE

¶ 18. Mixon next argues that the Commission erred in its finding that his average weekly wage was $607.88, rather than the higher figure of $1,290 as found by the AJ. The difference in the two figures stems from the AJ’s exclusion of those weeks during which Mixon was “off’ in his seven-day-on seven-day-off-work cycle. Mixon argues that Dependents of Harris v. Suggs, 283 Miss. 583, 102 So.2d 696 (1958) supports his position. However, Harris is distinguishable from the facts of this case. The supreme court in Harris determined that the claimant’s total weeks worked should be reduced by the number of days the claimant missed the opportunity to work, be it of his own choice not to show or because the conditions at his employment prohibited it. Id. at 536-37, 102 So.2d at 697-98. Additionally, Harris was hired to work five days a week and eight hours a day. Id. Therefore, the supreme court determined that for a claimant who is paid by the hour and works a typical forty-hour work week, work days that are missed by the claimant should not be included in determining his average weekly wage.

¶ 19. Mixon’s situation was different, and requires a different result. Mixon was hired to work a seven-days-on seven-days-off, twelve-hours-a-day work schedule. As noted by the Commission, such a work schedule, or something similar to it, is typical of the oil-field industry, as well as other professions. Because of Mixon’s unique schedule, Harris is inapplicable as Mixon did not miss any scheduled days, as was the basis for the supreme court’s decision in Harris.

¶20. Mississippi Code Annotated section 71-3-31 (Rev.2000), states, in pertinent part, that:

When the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided that results just and fair to both parties will thereby be obtained.

Direct application of the above statute worked well in the Harris case, and would work equally well when an hourly-compensated claimant works a traditional forty-hour work week. However, in Mixon’s case, the phrase “during which the employee earned wages” cannot be literally applied without some conflict of logic. As stated, Mixon was employed by Greywolf to work in a two-week work cycle. Therefore, the eighty-four hours he worked during his seven days “on” applied to that work cycle. In essence, Mixon worked in a two-week block of time. As such, we cannot say that the Commission erred in its computation of Mixon’s average weekly wage. This issue lacks merit.

III. WHETHER ADDITIONAL INSURANCE CARRIERS SHOULD BE HELD ACCOUNTABLE

¶ 21. Throughout Mixon’s case, several insurance carriers have been listed on behalf of Greywolf. Greywolf s initial answer listed Summit Consulting Corporation of Louisiana. Greywolf s notice of appeal to the circuit court listed Liberty Mutual Insurance Company. Greywolfs notice of cross-appeal listed both Liberty Mutual Insurance Company and Employers Insurance Company of Wausau. And Grey-wolfs brief to this Court listed Bridgefield Casualty Insurance Company. Mixon asks this Court to note Liberty Mutual’s appearance as a joint-party carrier. Grey-wolf did not respond to this request in its brief.

¶ 22. We note that which carrier or carriers are required to satisfy the judgment of the Commission was not raised before the AJ, Commission, or circuit court. Additionally, there has not yet been a failure to pay the benefits found by the Commission. As such, because we generally may only speak to issues properly raised on appeal, we cannot reach any conclusion here. However, we do note that any and all insurance carriers who properly made an appearance in this case, were not properly substituted, and are contractually bound to fulfill the obligations of Greywolf with regard to Mixon’s workers’ compensation claim are liable.

CROSS-APPEAL

I. WHETHER THE COMMISSION ERRED IN FINDING THAT MIX-ON SUSTAINED A COMPENSA-BLE INJURY

¶ 23. On cross-appeal, Greywolf argues that the Commission erred in finding a causal connection between Mixon’s shoulder injuries and the lightning incident. Greywolf argues that the AJ’s decision as adopted by the Commission did not take into account the alleged discrepancies between Mixon’s version of events and his health-care providers’ medical opinion of causation and that the opinion of Grey-wolf s expert, Dr. Ronald Graham, was the only opinion that rose above mere speculation.

¶ 24. The first report of injury, which was completed on June 4, 2001, by Mixon and another rig-team member, stated that Mixon was working in the “celler” and performing a “nipping down” during a hard rain. It stated that Mixon was removing “BOP bolts ‘ratchet style’ by hand.” It further stated that Mixon was “holding onto a bolt [and] nut[,] heard a loud boom[, and] felt [an] electrical charge.” The report lists the equipment involved as lightning, 18-inch pipe wrench, and BOP bolts. Another report of the incident, which was also created on June 4, 2001, stated that Mixon was “backing off [a] BOP bolt, lightning struck at an estimated 75-100 yards out, [Mixon] felt electricity [and] heard boom.” It also lists the “direct cause” of the injury as “hghtning,” •with “rain and lightning, sudden storm” listed as contributing causes. The third report of injury, which was prepared on June 11, 2001, states that Mixon was in the “celler” of the oil rig and attempting to remove the “BOP” bolts while holding onto a bolt or nut. It further states that Mixon “heard a loud boom. [Mixon] says he felt an electrical charge.”

¶ 25. Dr. Smith is a board-certified family practitioner. Mixon was admitted to Magee General Hospital under the care of Dr. Smith the day after the incident. She testified by deposition that Mixon’s chief complaints upon his admittance were light-headedness, hazy vision, and tightness of the chest. Dr. Smith stated that these complaints were consistent with symptoms of a lightning strike. Furthermore, she diagnosed Mixon with a indirect-lightning-strike injury. Dr. Smith stated that per Mixon’s report to the emergency-room physician and Mixon’s account to her of what had occurred, her understanding was that Mixon “felt a shock or jolting sensation near his feet that came up toward his waist and chest,” but Mixon did not mention that he was thrown.

¶ 26. Dr. Smith testified during cross-examination that she did not believe that the indirect lightning strike that Mixon’s received was capable of tearing his rotator cuff. However, she stated that there was no way for her to be one-hundred percent sure that the lightning did not cause the injuries. Furthermore, she testified that being exposed to electricity causes the muscles in the body to clamp down. Dr. Smith stated that she thought it would be unusual for muscle to tear as a result of a lightning injury. But Dr. Smith said that she would defer to an orthopedic surgeon’s opinion as to whether a lightning strike could cause that type of injury.

¶ 27. Dr. William Morrison, an orthopedic surgeon, began treating Mixon on June 11, 2001, when Mixon came in complaining of pain in his right shoulder. According to Dr. Morrison’s notes, Mixon stated that he was working on a drilling rig and holding onto an instrument when he was struck by lightning. Dr. Morrison’s notes also indicated that Mixon stated he was thrown and that “witnesses said that [Mixon] was ‘as if he was shot out of a canon.’ ” An MRI of his right shoulder revealed that Mixon had a tear of the superior margin of the labrum.' Further studies of Mixon’s right shoulder in late August revealed a partial tear of the rotator cuff. Mixon also had similar complaints regarding his left shoulder. Dr. Morrison believed these injuries to be related to the lightning strike. He diagnosed Mixon with a superior labral anterior to posterior tear or SLAP tears to both shoulders.

¶ 28. Dr. Morrison saw Mixon again in September, November, and December; and Mixon was still experiencing pain and weakness in both shoulders. Because the non-surgieal treatment options had been exhausted, Dr. Morrison performed an ar-throscopy on Mixon’s left shoulder on December 19, 2001, and on his right shoulder on February 6, 2002. Mixon continued to have problems with his shoulders and receive treatment from Dr. Morrison until later in 2002, when Dr. Morrison moved his practice to Laurel, Mississippi. Dr. Morrison stated that he never medically released Mixon to return to work, but Mixon nonetheless attempted several jobs as a result of his financial situation. Dr. Morrison testified that in his opinion, Mix-on’s injuries to both his shoulders were proximately caused by an electrocution injury. During cross-examination, Dr. Morrison explained his theory of how Mixon’s injuries occurred stating:

My feeling, you know, I don’t know whether the electricity had a direct or indirect effect on the shoulders. My feeling was at the time that he had this violent — you know, as the witnesses testified], it was “as if he was shot out of a cannon,” that he had some very forceful muscular contraction and positioning of his shoulders during this episode that caused it. And I don’t know — that was my feeling then and I think it is still my feeling today.... As I envisioned this, that he was thrown. He was kneeling forward when this occurred and that he was thrown back. I presume just from his description and from what he said people told him, that his arms would have been thrown backwards and that’s certainly a way that he could have injured the labrum of his shoulders by that mechanism.

¶ 29. After Dr. Morrison moved his practice, Mixon’s primary care for his shoulders shifted to Dr. Raymond Whitehead, an orthopedic surgeon. Dr. Whitehead began seeing Mixon in January 2003. Dr. Whitehead stated that the surgeries that Dr. Morrison had performed did not fully alleviate Mixon’s complaints, and Mixon was still having pain and weakness. As a result, on January 30, 2003, Dr. Whitehead performed another surgery on Mixon’s right shoulder: Dr. Whitehead opined that the surgery was needed and causally related to the injuries Mixon had sustained as a result of the lightning strike. It was also Dr. Whitehead’s opinion that the SLAP tears were consistent with having occurred as a result of the indirect-lightning strike Mixon received. Specifically, Dr. Whitehead stated:

Well, it sounds as though [Mixon] had a jerking injury as a result of, you know, a lightning strike, you know. It sounds as though he recalled some type of — he described some type of injury where he was jerked.... I’rri picturing [Mixon] holding a metal pipe and getting knocked back.... That’s the best I can see. But if he’s holding onto something and then he gets knocked back, to me that’s a jerking motion in the arms.... You know, based on my history, he was holding onto a metal pipe[,] which was on a land-based rig would be substantial. You know, if he had both hands on a solid metal instrument that was firmly attached to a metal pipe on a land-based rig and received a subtle jerking motion involuntary force to thrust him backwards, that is very reasonable that his SLAP lesion occurred as a result of this injury.

Dr. Whitehead also stated that: “I’m not a lightning expert. But if electrical current goes through the body, it depolarizes the muscles, causing [an] involuntary contraction ... of the muscles.” He further agreed that if the muscle contractions were severe enough they could partially dislocate the shoulder enough to tear the labrums.

¶ 30. Dr. Ronald Graham, an orthopedic surgeon, examined Mixon and his records at the request of Greywolf. He saw Mixon on March 20, 2002. According to Dr. Graham, Mixon stated that we was working as a roughneck on a drilling rig, standing on a two-by-twelve timber across an open dirt pit, and removing nuts and bolts when there was a lightning strike in close proximity to him. Dr. Graham stated that in his opinion Mixon’s shoulder injuries were not caused by the lightning strike. He further stated that “Mr. Mixon’s injuries, based upon his MRI scan, and on his history, are more consistent with his employment, his age, and have very little to do with a single traumatic event.” Dr. Graham stated that it was his opinion that it was more likely that Mixon’s injuries were caused by the throwing activities of moving bundles of shingles and working with a roofing company rather than having a lightning strike in his vicinity. However, Dr. Graham stated that he did not know if Mixon moved shingles in the way he suggested or how long Mixon had worked in roofing. Additionally, Dr. Graham stated that Mixon did have a previous shoulder injury in the form of a broken collar bone as a result of a motorcycle accident. However, Dr. Graham did not know when the accident was. Dr. Graham did say:

Theoretically, I could arrange the application of high voltage power in such a burst that I could cause posterior dislocation of one or both shoulders. And if the angle were correct, it will be possible to detach the posterior glenoid lab-rale rim. And, therefore, technically, that would be called a SLAP lesion.

However, Dr. Graham stated that Mixon’s records do not fit that scenario.

¶ 31. The AJ found that while the medical histories gathered throughout Mixon’s treatment with various medical professional varied in some respect, they were not materially inconsistent. Further, the AJ found that Dr. Morrison’s and Dr. Whitehead’s opinions of causation were more credible that Dr. Graham’s. The Commission adopted these findings. The Commission is the judge of a witness’s credibility. Short, 36 So.3d at 1251 (¶23). We find that there is substantial evidence to support this conclusion.

¶ 32. Mixon testified that he was “jolted up” and “driven back” by the indirect lightning strike. Although Greywolf argues that Dr. Morrison’s and Dr. Whitehead’s opinion on causation assume facts that were not in evidence, ie. that Mixon was thrown, Mixon’s testimony corroborates his treating physicians’ opinions. Therefore, we find that Greywolf s cross-appeal is without merit.

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF SIMPSON COUNTY IS AFFIRMED ON DIRECT AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY TO THE APPELLANT/CROSS-APPELLEE AND THE APPELLEES/CROSS-APPELLANTS.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS AND ISHEE, JJ„ CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. KING, C.J., AND MAXWELL, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Clayton TRAMMELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KP-00196-COA.
    Court of Appeals of Mississippi.
    Jan. 11, 2011.
    Rehearing Denied May 31, 2011.

      Clayton Trammell, appellant, pro se.
    Office of Attorney General by Ladonna C. Holland, attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   MYERS, P.J.,

for the court:

¶ 1. Clayton Trammell was convicted by a jury sitting before the Warren County Circuit Court for armed robbery and sentenced by the trial court to thirty years in the custody of the Mississippi Department of Corrections. Trammell’s post-trial motion for a new trial was denied, and he perfected this appeal. Trammell claims: (1) the trial court erred in denying his motion to suppress evidence; (2) the verdict is against the weight of the evidence; (3) the evidence was insufficient to sustain a conviction of armed robbery; (4) the trial court erred in denying certain defense jury instructions; (5) the trial court erred in failing to grant a competency hearing; (6) he received ineffective assistance of counsel; (7) the trial court imposed an excessive sentence; and (8) cumulative error merits reversal. Finding no merit to any of these claims, we affirm the judgment of conviction and sentence.

FACTS

¶ 2. On the evening of April 24, 2007, Trammell, then age twenty-seven, enlisted Arthur Andrews and Carl Junn Rumbley, both age sixteen, to help him rob the Pig-gly Wiggly store in Vicksburg, Mississippi. Trammell had been “scoping Piggly Wiggly out,” and he knew that the store did not have security cameras. To create a diversion, Trammell directed Andrews to call 911 and report a shooting in another part of town. Trammell and Andrews entered the Piggly Wiggly, and Trammell approached the store’s customer-service counter where he handed Angela Hamilton, an employee, a note which read: “Put all the money in the bag. Now! I have a gun. I will use it. Don’t make a sound.” Hamilton complied. Although she never saw a gun, Hamilton testified that she believed Trammell had one due to the note and the fact that Trammell had kept his right hand in his pocket.

¶ 3. Three days later, Hamilton identified Trammell from in a photographic lineup. At trial, Hamilton testified that Tram-mell was a regular customer at the store. She recalled seeing Trammell in the store on the night before the robbery when he came in and asked about a money order from California.

¶4. Andrews and Rumbley were the first ones to be apprehended by the police after the robbery. Both gave statements to the police implicating Trammell in the robbery. Trammell was indicted on one count of armed robbery and two counts of directing a child to commit a felony.

¶ 5. At trial, Trammell was granted a directed verdict on the two counts of directing a child to commit a felony. Tram-mell was found guilty of armed robbery and sentenced to thirty years in the custody of the MDOC. Additional facts will be related, as necessary, during the discussion.

DISCUSSION

I. Motion to Suppress Evidence

¶ 6. Following their interviews with Andrews and Rumbley, the police obtained a search warrant for Trammell’s home. The search warrant listed the following items to be seized: “money, checks, money order receipts, clothing worn during the robbery of the Piggly Wiggly store to include gray hooded sweatshirt, dark denim pants, long sleeve black shirt.” During the search of Trammell’s home, which Trammell shared with his mother, Officer Billy Brown found and seized a gun hidden underneath clothes in a closet located in the living-room area of the home. Prior to trial, Trammell moved to suppress the gun. The trial court denied the motion, finding that the gun was admissible under the plain-view doctrine. Trammell argues on appeal that the gun should have been suppressed because it was not specifically listed in the search warrant and was not in plain view.

¶ 7. A trial court’s denial of a motion to suppress will not be overturned where the trial court’s findings are supported by substantial credible evidence. Johnson v. State, 999 So.2d 860, 363 (¶ 13) (Miss.2008). Under the plain-view doctrine, the police may make a warrantless seizure when the officer is lawfully in a position to view an object; the object’s incriminating character is immediately apparent; and the officer has a lawful right of access to the object. Walker v. State, 881 So.2d 820, 827 (¶ 16) (Miss.2004). “[PJroperty which has a sufficient nexus to the crime being investigated may be seized at the time officers are properly executing a warrant authorizing a search for other items.” Lockett v. State, 517 So.2d 1317, 1326 (Miss.1987) (quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir.1983); United States v. Kane, 450 F.2d 77, 85 (5th Cir.1971); United States v. Gentry, 642 F.2d 385, 387 (10th Cir.1981)).

¶ 8. In Lockett, the police conducted a search of the defendant’s premises based on a search warrant that only listed “guns” as the items sought. Id. at 1325. After finding two guns in the defendant’s bedroom, the police continued their search and discovered credit cards hidden behind a wall plaque. Id. Lockett held that when the police are executing a valid search warrant and come across “other incriminating articles” not specified in the warrant, those items may be seized. Id. Based on the facts of the case, the Lockett court reasoned that while “[i]n the course of searching for the guns[,] the officers were entitled to make reasonable inspection of places where the guns may have been hidden!!,]” such as “[a] wall plaque which may well conceal a space within a wall where such items may be hidden.” Id. at 1326.

¶9. During the suppression hearing in this case, Officer Brown testified that when he opened the closet door, he noticed some articles of clothing on the shelf above where other clothing articles were hanging. Upon inspecting the items, Officer Brown located a gun. Officer Brown informed Officer Jeff Merritt, who was conducting a search elsewhere in the home, that he had found a gun. Officer Merritt testified that when he asked Trammell’s mother about the gun, she denied ownership of it.

¶ 10. Based upon the evidence in the record, we find that Officer Brown was lawfully on the premises. Officer Brown was entitled to make reasonable inspection of places where the items identified in the search warrant may have been hidden, and the living-room closet was such a location. Having discovered the gun, it was reasonable for Officer Brown to believe, under the circumstances of the investigation, that the gun had evidentiary value. Accordingly, we affirm the trial court’s denial of Trammell’s motion to suppress. This issue is without merit.

II/III. Weight and Sufficiency of the Evidence

¶ 11. Most of the claims Trammell raises under the weight-of-the-evidence issue actually challenge both the sufficiency of the evidence and the weight of the evidence. Therefore, we will address issues two and three together.

¶ 12. Trammell claims that the verdict is against the weight of the evidence because Hamilton: did not see Trammell brandish a gun during the robbery, did not testify that she was in fear for her life, and did not testify that Tram-mell threatened her during the robbery. Trammell also contends that Hamilton’s identification of him is questionable because she testified at trial that he was a regular customer at the store, but Officer Brown testified that he had learned Tram-mell’s identity from Andrews. On this point, Trammell submits that Hamilton did not actually identify him as the perpetrator of the armed robbery until the day of trial, after she was “educated and coached” by the State. Lastly, Trammell contends that the State failed to prove that he committed the crime of robbery because the State failed to meet its burden of proof showing that he had actual knowledge of the gun used in the robbery which was found at his mother’s residence.

¶ 13. In reviewing whether the evidence is sufficient to sustain a conviction, the Mississippi Supreme Court has stated that: “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). This inquiry does not require a reviewing court to ask whether the evidence established the defendant’s guilt beyond a reasonable doubt. Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Instead, the reviewing court considers whether, after viewing the evidence in the light most favorable to the State, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson, 443 U.S. at 315, 99 S.Ct. 2781).

¶ 14. In determining whether a jury verdict is against the overwhelming weight of the evidence, we view all of the evidence in the light most favorable to the verdict. Id. at 844 (¶ 18). This Court will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Smith v. State, 925 So.2d 825, 832 (¶ 16) (Miss.2006).

¶ 15. Armed robbery is defined by Mississippi Code Annotated section 97-3-79 (Rev.2006), which provides in part:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery[.]

¶ 16. At trial, Hamilton testified that when Trammell presented her with the demand note, which indicated that Tram-mell had a gun, she complied by giving him “the whole bag of money” belonging to the Piggly Wiggly store. And she testified that Trammell’s actions placed her in fear for her life.

¶ 17. The fact that Hamilton never saw a weapon is of no matter. In Lyons v. State, 942 So.2d 247, 250-51 (¶¶ 13-16) (Miss.Ct.App.2006), this Court, relying on the supreme court’s pronouncement in Dambrell v. State, 903 So.2d 681, 683 (¶ 6) (Miss.2005), held that the exhibition of a note stating that the defendant has a gun is an overt act which would reasonably lead a victim to believe that a deadly weapon is present for the purposes of our armed-robbery statute. The Dambrell court held as follows:

We find that when a defendant makes an overt act and a reasonable person would believe that a deadly weapon is present, there is no requirement that a victim must actually see the deadly weapon in order to convict pursuant to Miss. Code Ann. Section 97-3-79. Therefore, a victim is not required to have “definite knowledge” of a deadly weapon in the sense that the weapon must actually be seen by the victim’s own eyes.

Dambrell, 903 So.2d at 683 (¶ 6) (overruling Gibby v. State, 744 So.2d 244 (Miss.1999)).

¶ 18. With regard to Hamilton’s identification of Trammell, contrary to Tram-mell’s assertion on appeal, the record reveals that Hamilton did in fact make a positive pretrial identification of Trammell when she picked his picture out of a photographic lineup three days after the armed robbery had occurred. Whether or not Hamilton informed the police immediately after the robbery that she had seen Tram-mell in the store prior to the robbery was something for the jury to ponder, not this Court. Further, as the State points out, Andrews, who participated in the armed robbery along with Trammell, also positively identified Trammell as the perpetrator.

¶ 19. As to the gun, it was introduced into evidence at trial during Officer Brown’s testimony for the jury’s consideration that Trammell possessed the means to commit the crime of armed robbery, as represented by the note he displayed to Hamilton. In 77 C.J.S. Robbery § 79 (2006), this is said:

Testimony connecting a weapon with the accused or the robbery is admissible. Evidence of the defendant’s possession of a weapon is admissible if the jury can infer from the evidence that the weapon could have been used in the commission of the crime. Where an accused’s possession of weapons or other instruments of crime affords no reasonable inference of guilt of the offense charged, it should be excluded. Subject to this qualification, however, evidence is admissible in a robbery prosecution to show that the accused owned, possessed, or had access to tools, implements, or other articles with which the robbery was or might have been committed, and especially when the article is of a lethal nature.
Proof of possession of a deadly weapon is not limited to cases where the weapon is openly displayed, but includes evidence of facts, circumstances, and conduct from which the jury may infer that the robber was armed. It is ordinarily permissible to prove the accused’s ownership or possession of weapons before or after the commission of the robbery, as where weapons were later found in the accused’s car, or in a room occupied by the accused, or in an outbuilding adjacent to his or her residence.

¶ 20. Officer Brown told the jury about the search that was conducted at Tram-mell’s place of residence and where and how the gun was located. Officer Brown made it known to the jury that he did not ask Trammell’s mother if the gun belonged to Trammel. Officer Merritt did not testify. During Andrews’s testimony, Andrews told the jury that no gun was involved in the robbery, but he stated that Trammell did own a gun. The respective testimonies presented factual questions for the jury’s determination as to whether the gun found at Trammell’s place of residence was connected to the robbery of the Piggly Wiggly. Trammell’s argument on this point concerns a charge of possession of the gun and not the crime of armed robbery. See, e.g., Muscolino v. State, 803 So.2d 1240, 1243 (¶ 13) (Miss.Ct.App.2002).

¶ 21. Based on our review of the record, we find that there was sufficient evidence produced at trial from which the jury could reasonably determine that Trammell was guilty of armed robbery. And we do not find the verdict to be contrary to the weight of the State’s evidence. Issues II and III are without merit.

IV. Defense Jury Instructions

¶ 22. Trammell contends that the trial court erroneously refused defense jury instructions D-l, D-4, D-6, and D-8. He also argues that he was denied an opportunity to present a defense jury instruction on his theory of the case and that the jury instructions given were not adequate and misled the jury.

¶ 23. Jury instructions are to be read as a whole. McKlemurry v. State, 947 So.2d 987, 990 (¶ 3) (Miss.Ct.App. 2006). “No reversible error will be found to exist if, when read together, the instructions correctly state the law and effectuate no injustice.” Id. Although a criminal defendant is entitled to present jury instructions which support his theory of the case, that entitlement is limited in that the trial court may properly refuse instructions which are cumulative, incorrectly state the law, or are fairly covered by other jury instructions. Livingston v. State, 943 So.2d 66, 71 (¶ 14) (Miss.Ct.App.2006).

¶ 24. Defense jury instruction D-l is an elements instruction, which the trial court denied as being cumulative. The trial court had already granted the State’s instruction S-1A, an elements instruction, which the trial court had found properly stated the law. Defense counsel’s objection to instruction S-1A was that it stated the following element of the crime: “by the exhibition of a deadly weapon through the use of a written note stating that Clayton Trammell was armed with a gun.” Defense counsel argued that the armed-robbery statute references only the display of a deadly weapon. As previously discussed, under the authority of Dambrell and Lyons, an armed-robbery conviction will be sustained when there is evidence that a note was exhibited to a robbery victim indicating that the perpetrator has a deadly weapon. Jury instruction S-1A properly stated the law, and we find no error with the trial court’s decision to deny defense instruction D-l.

¶25. Defense instruction D-4 was denied by the trial court as being cumulative. The record reveals that the trial court’s instruction C-l, which is nearly verbatim to D-4, had already been granted with no objection from Trammell.

¶ 26. Defense instruction D-6 is a circumstantial-evidence instruction, and it was denied by the trial court because the State had presented eyewitness testimony identifying Trammell as the individual who had robbed the Piggly Wiggly store on April 24, 2007. Eyewitness testimony constitutes direct evidence, and when the State presents direct evidence against a criminal defendant, a circumstantial-evidence instruction is not warranted. Ross v. State, 954 So.2d 968, 1009 (¶ 100) (Miss. 2007); Jones v. State, 920 So.2d 465, 477-78 (¶ 38) (Miss.2006).

¶ 27. Finally, defense jury instruction D-8 was a form-of-the-verdict instruction, which included directions for the form of the verdict on two additional counts on which Trammell had been indicted — directing a child to commit a felony. Tram-mell was granted a directed verdict on both of these counts. Accordingly, jury instruction D-8 was properly refused.

¶ 28. Trammell fails to articulate how the trial court’s refusal to grant the aforementioned defense jury instructions denied him the opportunity to present his theory of the case, or how the given jury instructions were inadequate and misled the jury. For the above stated reasons, we find no error with the trial court’s decision to deny defense jury instructions D-l, D-4, D-6, and D-8. Accordingly, this issue is without merit.

V. Competency Hearing

¶29. Trammell claims that the trial court committed reversible error in failing to conduct a hearing to determine whether he was competent to stand trial. According to the record, Trammell’s defense counsel filed a motion for appointment of a psychiatrist to conduct a psychiatric evaluation. But the motion was never pursued to a decision.

¶ 30. As this Court held in Roy v. State, 878 So.2d 84, 89 (¶ 23) (Miss.Ct.App.2003), a movant is charged with the duty of pursuing a motion through to a hearing for a decision. See URCCC 2.04. A psychiatric evaluation is required only if the trial court has reasonable ground to believe that the defendant is incompetent to stand trial. URCCC 9.06. No where in the record is there any indication that the trial court had a reasonable ground to believe that Trammell was not competent to stand trial. See Epps v. State, 984 So.2d 1042, 1045 (¶ 9) (Miss.Ct.App.2008) (“The defendant bears the burden of ‘persuading the trial judge that there is sufficient evidence to warrant a mental examination.’ ”). Further, a competency hearing is not required unless the trial court has already ordered a psychiatric evaluation. Sanders v. State, 9 So.3d 1132, 1136 (¶ 16) (Miss.2009) (citing URCCC 9.06).

¶ 31. Accordingly, we find this matter is procedurally barred.

VI. Ineffective Assistance of Counsel

¶ 32. “Ordinarily, ineffeetive-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings. This is because during direct appeals the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately.” Archer v. State, 986 So.2d 951, 955 (¶ 15) (Miss.2008). In such a case, “the proper resolution is to deny relief without prejudice to the defendant’s right to assert the same claim in a post-conviction relief proceeding.” Liddell v. State, 33 So.3d 524, 533 (¶ 31) (Miss.Ct. App.2010) (quoting Willis v. State, 811 So.2d 450, 454 (¶8) (Miss.Ct.App.2001)). We may determine the merits of an ineffective-assistance-of-counsel claim on direct appeal only if “the record affirmatively shows ineffectiveness of constitutional dimensions, or ... the parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge able to consider the demeanor of witnesses, etc. are not needed.” Id. The bulk of Trammell’s allegations of ineffective assistance involve alleged inaction by defense counsel based on matters outside the record. And the record does not affirmatively show ineffectiveness of constitutional dimensions. Therefore, we dismiss Trammell’s ineffective-assistance-of-counsel claim without prejudice so that he may pursue it in a post-conviction proceeding if he chooses.

VII. Sentence

¶33. Trammell claims that his thirty-year sentence is effectively a life sentence which requires reversal because the jury did not recommend a life sentence.

¶ 34. When a jury does not recommend a life sentence on a conviction for armed robbery, the trial court’s imposition of a sentence is proper where the trial court takes into consideration the defendant’s life expectancy and “all the relevant facts necessary to fix a sentence for a definite term of years reasonably expected to be less than life.” Lindsay v. State, 720 So.2d 182, 185 (¶ 9) (Miss.1998). Here, the trial court consulted two different actuarial tables of life expectancy before imposing Trammell’s thirty-year sentence. Both tables showed the life expectancy for a person of Trammell’s age, sex, and race to be thirty-nine years. In accordance with Lindsay, the trial court made a record and considered all the relevant factors necessary to determine Trammell’s sentence, which the record supports as being reasonably less than life. Id. at (¶ 11). Therefore, we find Trammell’s sentence to be a lawful sentence. This issue is without merit.

VIII. Cumulative Error

¶ 35. Where there is no error in any one of the alleged assignment of errors, there can be no cumulative error. Hughes v. State, 892 So.2d 203, 213 (¶ 29) (Miss. 2004). Thus, we find no merit to Tram-mell’s claim of cumulative error.

¶ 36. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

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


author: MAXWELL, J.,

text:
    Riley Lafate ADAMS a/k/a Riley Lafayete Adams, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01560-COA.
    Court of Appeals of Mississippi.
    Feb. 8, 2011.
    Rehearing Denied May 17, 2011.

      George T. Holmes, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. A Clarke County jury found Riley Lafate Adams guilty of murdering Ruth Ellen Roberts. On appeal, Adams claims: (1) the circuit court should have excluded his final admission to law enforcement that he shot Roberts; (2) it erred in excluding his testimony concerning prior suicide attempts, which he deemed relevant to his theory of defense-that while attempting to kill himself, his pistol discharged when Roberts attempted to wrestle the gun away from him; and (3) the circuit judge improperly refused his proposed “diminished capacity” instruction.

¶ 2. Since Adams had been advised of his Miranda rights at least three times, and at no point indicated a misunderstanding of those rights, we find no error in the admission of his subsequent incriminating statements. We also find Adams’s proposed testimony about his prior suicide attempts was too vague to support the admission of the alleged attempts. Further, because Adams’s proposed jury instruction incorrectly suggested voluntary intoxication could negate deliberate design to commit murder, the circuit court properly refused it. Finding no merit to Adams’s remaining arguments, we affirm.

FACTS

¶ 3. Roberts died of a single gunshot wound to her neck from a .22-caliber pistol. The shooting occurred on April 2, 2008, at Adams’s Shubuta, Mississippi, residence. Roberts had been Adams’s “live-in-companion” since 1995.

¶ 4. When Deputy Bo Davis of the Clarke County Sheriffs Department arrived at Adams’s mobile home, he found Adams on the front porch talking on a cordless telephone. Adams had blood on his shirt and hands. Adams told Deputy Davis that Roberts had shot herself.

¶ 5. Investigator Gary Kelly of the Clarke County Sheriffs Department also arrived and spoke to Adams. Investigator Kelly advised Adams of his Miranda rights, then spoke with him at the scene for almost an hour. Adams gave several conflicting versions of the events surrounding Roberts’s death.

¶ 6. He first claimed that after returning from fishing, he heard a gunshot and went to the back of the house, where he found Roberts dead, apparently from a self-inflicted gunshot wound. Adams then gave a slightly different version — that upon returning from fishing he found Roberts dead. In yet another account, Adams explained that “two black males” had killed Roberts. Investigator Kelly explained that when he pointed to the inconsistencies, Adams “would just go back and give ... a different story.” He recalled Adams providing at least five or more different versions, including one consistent with Adams’s trial testimony that while he was attempting to commit suicide, Roberts tried to wrestle away his gun, which accidentally discharged killing her. A .22-caliber revolver was found at the scene, containing five live rounds and one spent casing.

¶ 7. After agreeing to go to the sheriffs office for further questioning, Adams was again given Miranda warnings — this time in a written advice of rights form. Adams signed the form, agreeing to waive his rights, and was interviewed. Investigator Kelly maintained that after Adams acknowledged he understood his rights, he provided another oral statement. Adams was held in custody overnight, and the next day, April 3, he signed a typewritten statement depicting this most recent oral recitation. In this typewritten statement, Adams claimed that while he was attempting suicide in Roberts’s presence, Roberts grabbed at the gun, which accidentally discharged killing her.

¶ 8. That same day, Adams signed a second typewritten statement, which memorialized a different version — that the shooting occurred following an argument with Roberts over Adams’s drinking habits. During this alleged argument, Adams claims to have confronted Roberts about her taking his prescription medication without his permission. Adams explained that after the argument, he retrieved his pistol from a cabinet and headed toward the back bedroom, where Roberts was lying in the bed. He then sat down on the bed. As he put it, “it was like [he] was hav[ing] a psychotic episode.” Adams admitted that he “cocked the 22 revolver and turn[ed] around and shot [Roberts] ... in the right side of her neck.”

¶ 9. On April 4, Adams requested to speak to Investigator Kelly again. This time, Adams’s account, which he provided in his own handwriting, was largely consistent with his most recent admission. According to Investigator Kelly, Adams had difficulty spelling, but he told Adams “to write [his] statement himself the best he could.” The April 4 statement reflects that Adams retrieved his gun, then got into an argument with Roberts about taking his pills. The statement then reads: “AFTER THAT I PULL THE TIGER [sic] I’WAS LIKE ME BUT AT TH[E] SAME IT [sic] WAS BODYLESS [sic].”

¶ 10. At trial, Adams testified in his own defense. He explained that when he returned from Ashing, he sat down for a while to do a “puzzle book.” He was suddenly overcome with suicidal feelings and “wanted to die.” He admitted retrieving the gun and going into the bedroom where Roberts was lying in the bed. He then claimed, “I got down and was asking God to forgive me for what I was fixing to do, and she grabbed the gun ... [and] it went off.”

¶ 11. His attorney attempted to question him about his past suicide attempts. The State objected on relevance grounds, and the circuit court sustained the objection and excluded the evidence.

¶ 12. Adams submitted jury instruction D-6, which directed the jury to consider whether he had “diminished capacity” and, if so, what effect it had on his ability to form deliberate design to commit murder. The circuit court denied the instruction.

¶ 18. The jury found Adams guilty of murder in violation of Mississippi Code Annotated section 97 — 3—19(l)(a) (Rev. 2006). The circuit court sentenced him to life imprisonment in the custody of the Mississippi Department of Corrections. Adams filed a motion for ju'dgment notwithstanding the verdict or a new trial, which the court denied.

I. Miranda

¶ 14. Prior to trial, Adams moved to suppress all of his statements claiming he “may or may not have been properly [Mjirandized.” After conducting a hearing on the motion, the circuit court found Adams knowingly waived his Miranda rights and denied Adams’s motion to suppress. On appeal, Adams argues his final statement to law enforcement, which he penned by hand on April 4, was involuntary because law enforcement did not renew previously given Miranda warnings.

¶ 15. During the suppression hearing, Investigator Kelly testified that he administered Adams’s Miranda warnings twice at the scene on April 2 at some point after 6:00 p.m. He advised Adams of his Miranda rights a third time that same day at the Clarke County Sheriffs Office at approximately 8:50 p.m., immediately prior to obtaining an oral statement from Adams. According to Investigator Kelly, Adams indicated that he understood his Miranda rights and signed a written waiver before providing his oral statement. This specific oral statement was reduced to writing and signed by Adams at approximately 2:00 p.m. on the following day, April 3.

¶ 16. Investigator Kelly testified that Adams initiated each of the subsequent interviews. Before these later interviews, he reminded Adams of the previously given Miranda warnings. Though Investigator Kelly did not reissue complete warnings before each subsequent interview, Adams neither invoked his right to counsel nor expressed any questions or misunderstandings about his rights. At approximately 7:49 p.m. on April 8, Adams signed a second typewritten statement in which he confessed to shooting Roberts. The next day, on April 4, Investigator Kelly received a call at home advising him that Adams wished to provide yet another statement. Investigator Kelly returned to the sheriffs office and let Adams write out this particular statement in his own handwriting. This statement was similar to the previous one and suggested that he had shot Roberts. Adams testified at his suppression hearing that he could not recall ever being advised of his rights.

¶ 17. “Absent a knowing and intelligent waiver of rights, statements made by a suspect while under ‘custodial interrogation’ are inadmissible at trial where pri- or to making the statements, the suspect was not Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ] warned.” Moore v. State, 933 So.2d 910, 919 (¶ 30) (Miss.2006). The State has the burden to prove beyond a reasonable doubt that a confession was voluntary. Id. This “burden is met and prima facie case made out by testimony of an officer, or other persons having knowledge of the facts, that the confession was voluntarily made without threats, coercion, or offer of reward.” Id.

¶ 18. “[T]he voluntariness of a [Miranda ] waiver, or of a confession, is a factual inquiry that must be determined by the trial judge from the totality of the circumstances.” Thomas v. State, 42 So.3d 528, 535 (¶24) (Miss.2010). Great deference is afforded to a trial judge’s determination that a confession is voluntary. White v. State, 495 So.2d 1346, 1347 (Miss.1986). “Once the trial judge has determined at a preliminary hearing, that a confession is admissible, the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal.” Bartolo v. State, 32 So.3d 522, 527 (¶ 14) (Miss.Ct.App.2009).

¶ 19. A criminal defendant need not be “advised of his rights every time there is a brief pause in questioning. Miranda simply requires that if the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Baldwin v. State, 757 So.2d 227, 235 (¶ 31) (Miss.2000) (quotation marks omitted). “What Miranda apparently requires is cessation of interrogation when requested and if subsequently there is a reasonable basis for inferring that a suspect has voluntarily changed his mind, new and adequate warnings must be given.” McDougle v. State, 355 So.2d 1386, 1388 (Miss.1978) (citing United States v. Collins, 462 F.2d 792, 801-02 (2d Cir. 1972)).

¶ 20. Federal courts have likewise held that the mere passage of time does not invalidate Miranda warnings. United States v. Clay, 408 F.3d 214, 221-22 (5th Cir.2005); Mitchell v. Gibson, 262 F.3d 1036, 1057 (10th Cir.2001); Stumes v. Solem, 752 F.2d 317, 320-21 (8th Cir.1985); United States v. Weekley, 130 F.3d 747, 751 (6th Cir.1997). “While the passage of time between a defendant’s receipt of his Miranda rights and his confession may be a factor in determining the voluntariness of the confession, the passage of time is not itself necessarily sufficient to render Miranda warnings ineffective.” Clay, 408 F.3d at 221-22 (citing Evans v. McCotter, 790 F.2d 1232, 1237-38 (5th Cir.1986)).

¶ 21. In Clay, the Fifth Circuit Court of Appeals found that a confession obtained two days after Miranda warnings were given was voluntary, and renewed warnings were not required. Clay, 408 F.3d at 221-22. The defendant, Clay, a parolee, absconded from supervision. Id. at 216. Once apprehended, he was arrested for possession of a firearm by a convicted felon, and was later convicted. Id. At the time of his arrest, Clay was given Miranda warnings. Id. at 221. Two days later, when he met with a parole officer to discuss his rights as a parolee (e.g., the right to a preliminary hearing), Clay was not re-issued Miranda warnings. Id. During this meeting, Clay signed a form admitting he had possessed a firearm. Id. The Fifth Circuit explained that “[b]eeause Clay received a Miranda warning at the time of his arrest, and because nothing in the record suggests that Clay either no longer understood those warnings or did not appreciate their applicability to [the parole officer’s] questioning ... the district court did not err in refusing Clay’s motion to suppress.” Id. at 222 (footnote omitted).

¶ 22. We find Adams’s final statement was not rendered involuntary by Investigator Kelly’s failure to re-issue Miranda warnings. During the two days prior to the complained of confession, Adams was advised of his rights at least three times, twice orally, and once by a written waiver form signed by Adams. Further, Investigator Kelly testified that he reminded Adams of the prior warnings before obtaining each subsequent statement.

¶ 23. We also find important that Adams does not argue, nor does the record support, that he indicated at any point that he no longer understood his Miranda rights or wished to invoke them. And he does not claim that his written waiver, executed on April 2, was involuntary. Drawing from both Mississippi and federal case law, we reject the notion that the mere lapse of time required renewed warnings where the record is devoid of any indication that Adams no longer understood his rights. Therefore, we find no error in the circuit court’s admission of Adams’s final statement to law enforcement.

II. Prior Suicide Attempts

¶24. Adams next claims the circuit court prevented him from presenting his theory of defense — that during his suicide attempt, Roberts tried to wrestle his gun away from him, leading to the accidental discharge that killed Roberts. Adams was permitted to testify about his suicide-gone-awry defense, and one of his statements to the police furthering this defense was admitted into evidence. But the State objected based on relevancy when Adams attempted to offer testimony about his pri- or suicide attempts. The circuit court sustained the objection, and Adams’s defense counsel questioned Adams during the following proffer:

Q. Mr. Riley have you ever attempted suicide before?
A. Yes, sir.
Q. When was the first time you attempted to commit suicide?
A. Back in Texas.
Q. How did you attempt to commit suicide?
A. I tried pills. I tried to hang myself. It just wasn’t my time, I don’t guess.
Q. Did you ever try to commit suicide by leaving burners on ... a stove?
A. Yes, sir.
Q. When and where was that?
A. A little camp right behind my sister’s house.
Q. When was the next time you tried to commit suicide?
A. I took a handful of pills.
Q. When was that?
A. When I was locked up.
Q. When you were locked up in the Clarke County [J]ail?
A. Yes, sir.
Q. Did you also try to commit suicide . in 1997?
Q. Do you remember going to the hospital in 1997, H.C. Watkins?
A. No, sir.
Q. Have you ever been recommended for mental treatment before?
A. They say I have two weeks before this accident. I don’t — I don’t remember it.
[Defense counsel]: That’s all I have for proffer, Your Honor, on that point.

¶ 25. Though not mentioned by either party, this issue concerns Rule 404(b) of the Mississippi Rules of Evidence. Rule 404(b) provides that evidence of prior acts is not admissible to show a person “acted in conformity therewith,” but it may be admissible for other purposes, including “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Our supreme court has adopted a two-part test for the admissibility of evidence under Rule 404(b). First, the evidence must “be relevant to prove a material issue other than the defendant’s character.” Second, “the probative value of the evidence must outweigh the prejudicial effect.” Davis v. State, 40 So.3d 525, 530 (¶ 16) (Miss.2010). This second prong implicates Mississippi Rule of Evidence 403 — “the ultimate filter through which all otherwise admissible evidence must pass.” Id.

¶ 26. In addressing the excluded testimony, we ask whether the evidence was too remote, unspecific or vague to be admitted under Rule 404(b). See Lesley v. State, 606 So.2d 1084, 1089-90 (Miss.1992) (finding Rule 404(b) evidence was improperly admitted because the evidence was too remote to show a motive for the crime allegedly committed by the accused); see also Young v. State, 831 So.2d 585, 588 (¶ 6) (Miss.Ct.App.2002) (finding Rule 404(b) evidence was too vague to permit its admission).

¶ 27. Mississippi Rule of Evidence 401 defines “relevant evidence” as that having “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” “The determination of whether evidence is too remote to be relevant is ordinarily left to the discretion of the trial judge, and his decision will not be reversed in the absence of a clear proof of abuse of that discretion.” DeHenre v. State, 43 So.3d 407, 415 (¶ 29) (Miss.2010) (quoting Stewart v. State, 226 So.2d 911, 912 (Miss.1969)).

¶ 28. We find Adams’s proffered testimony is simply too vague and unspecific to support admission. See, e.g., U.S. v. Winkle, 587 F.2d 705, 710 (5th Cir.1979) (finding offer of proof too unspecific “to make known to the court the [sjubstance of the evidence”); 1 McCormick on Evidence § 51, at 250 (Kenneth S. Broun et al. eds., 6th ed. 2006) (“[T]he statement constituting the offer of proof must be reasonably specific[.]”). We are also concerned with the lack of identifiable time periods, during which the alleged suicide attempts took place. Adams points to a pretrial examination by a clinical psychologist, Criss Lott, Ph.D. In Dr. Lott’s report, he noted general allegations of past suicide attempts and cited Adam’s medical history, which indicates that in 1996 he had attempted suicide when he “turned on the stove burners without lighting [them] and went to bed.” Though Dr. Lott’s report was marked as an exhibit at a pretrial competency hearing, Adams failed to offer the exhibit, much less mention Dr. Lott’s potential testimony during his proffer. Further, Adams made no attempt at trial to establish the facts in the report, other than vague testimony, which failed to identify any specific time frames when the alleged suicide attempts occurred. Because the proffer certainly does not permit that determination, we are left only to speculate about these purported events. Indeed, the only date identified in the proffer was 1997, and Adams did not respond to his attorney’s question about a suicide attempt that may have occurred then. For these reasons, we find no reversible error in the circuit court’s exclusion of Adams’s vague testimony concerning prior suicide attempts.

III. Jury Instruction

¶ 29. Adams also argues the circuit court erred in denying jury instruction D-6, which proposed:

The Court instructs the jury that if you find from the evidence that at the time the alleged crime was committed, the Defendant had substantially reduced mental capacity, whether caused by, intoxication, substance abuse or any other cause, you must consider what effect, if any this diminished capacity had on the Defendant’s ability to form any of the specific mental states that are essential elements of murder.
Thus, if you find that the Defendant’s mental capacity for whatever reason was diminished to the extent that you have a reasonable doubt whether he did, maturely and meaningfully, premeditate, deliberate, and reflect upon the gravity of his contemplated act, or form an intent to kill, you can not [sic] find him guilty of a willful, deliberate and premeditated murder.
Also, if you find that his mental capacity was diminished to the extent that you have a reasonable doubt whether he premeditated design, you can not [sic] find him guilty of murder.
Further, if you find that his mental capacity was diminished to the extent of premeditated design, nor had an intent to kill at the time of the alleged crime was committed, [sic] then you shall find the Defendant, Riley L. Adams NOT GUILTY.

The circuit judge refused this instruction, finding that it had no adequate evidentiary basis and was not an accurate statement of the law. Because we find the second ground for refusal of the instruction proper, we limit our discussion to that issue.

¶ 30. A criminal defendant is entitled to jury instructions that present his theory of the case even if the supporting evidence “is weak, inconsistent, or of doubtful credibility.” Banyard v. State, 47 So.3d 676, 682 (¶ 17) (Miss.2010) (citing Ellis v. State, 778 So.2d 114, 118 (¶ 15) (Miss.2000)). But a defendant’s right to jury instructions presenting his theory of the case is not absolute. Harris v. State, 861 So.2d 1008, 1012 (¶ 18) (Miss.2003). “[T]he court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id. at 1012-18; Brown v. State, 39 So.3d 890, 898 (¶ 27) (Miss.2010).

¶ 31. It is well established that voluntary intoxication is not a defense in Mississippi. Smith v. State, 445 So.2d 227, 230-31 (Miss.1984). In McDaniel v. State, 356 So.2d 1151, 1161 (Miss.1978) (Sugg, J., specially concurring), a majority of participating justices found that “[i]f a defendant, when sober, is capable of distinguishing between right and wrong, and the defendant voluntarily deprives himself of the ability to distinguish between right and wrong by reason of becoming intoxicated and commits an offense while in that condition, he is criminally responsible for such acts.” McDaniel overruled a long line of cases, which had authorized “submission to a jury the question of voluntary intoxication as a defense in specific intent offenses[.]” Id. The supreme court chose instead to follow the common-law rule that voluntary intoxication is not a defense, reasoning that “if a person casts off the restraints of reason and consciousness by a voluntary act, no wrong is done to him if he is held accountable for any crime which he may commit in that condition. Society is entitled to this protection.” Id. at 1160-61.

¶ 32. The supreme court later explained “[t]he McDaniel rule prevents ‘submission to a jury the question of voluntary intoxication as a defense in specific intent offenses.’ ■” Lee v. State, 403 So.2d 132, 134 (Miss.1981). In Smith, the court again reaffirmed McDaniel. Smith, 445 So.2d at 231; see also Norris v. State, 490 So.2d 839, 842 (Miss.1986) (finding no error in granting a “McDaniel rule” instruction to the State that voluntary intoxication is no defense to a crime, where the evidence justified granting the instruction); Grubbs v. State, 956 So.2d 932, 936-37 (¶¶ 10-13) (Miss.Ct.App.2006) (same).

¶33. Proposed jury instruction D-6 does not conform to Mississippi law. Instead, it requires the jury to consider Adams’s level of intoxication and whether it affected his ability to form deliberate design to commit murder. The instruction gives the impression that Adams’s intoxication, regardless of the reason for it, is a defense. Indeed, the second paragraph of the instruction provides that if the jury finds “for whatever reason” that the defendant had diminished capacity to the point of creating a reasonable doubt regarding deliberate design, then it must find Adams not guilty. Because this is not the law, we find no abuse of discretion in the circuit court’s denial of the instruction.

IY. Sufficiency and Weight of the Evidence

¶ 34. Adams finally argues the verdict was not supported by legally sufficient evidence or is against the weight of the evidence. When addressing the legal sufficiency of evidence, we consider all evidence in a light most favorable to the State. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). Credible evidence consistent with guilt must be accepted as true. The State receives the benefit of all favorable inferences reasonably drawn from the evidence. Jones v. State, 20 So.3d 57, 64 (¶ 16) (Miss.Ct.App.2009) (citing Hughes v. State, 983 So.2d 270, 275-76 (¶¶ 10-11) (Miss.2008)). The jury resolves matters of weight and credibility. Reversal is proper when reasonable and fair-minded jurors could only find the accused not guilty. Id. Our primary duty in considering the sufficiency of the evidence is to determine whether from the evidence presented, it would be impossible for a reasonable juror to find the defendant guilty. Ducksworth v. State, 767 So.2d 296, 301 (¶ 10) (Miss.Ct.App.2000).

¶ 35. The standard differs slightly when reviewing a claim based on the weight of the evidence challenging a trial court’s denial of a motion for a new trial. Under this standard, “we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). We evaluate the evidence in the light most favorable to the verdict. Id. And we are required to accept as true all evidence consistent with the defendant’s guilt, along with any reasonable inferences that might be drawn from the evidence. Young v. State, 891 So.2d 813, 821 (¶ 21) (Miss.2005). “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844 (¶ 18).

¶ 36. The jury found Adams guilty of murder in violation of section 97-3-19(l)(a). This section provides that “[t]he killing of a human being without the authority of law by any means or in any manner shall be murder ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being[.]” Id.

¶ 37. We find ample evidence to sustain Adams’s conviction. In one typewritten statement, Adams admitted that he shot Roberts. The statement exudes deliberation. It indicates that he and Roberts got into an argument. And after working on a puzzle, he walked to a cabinet, removed his pistol, and proceeded to the bedroom. He sat on the bed, cocked his .22-caliber revolver, then shot Roberts in the neck. Adams’s handwritten statement furthers a somewhat similar narrative—that he and Roberts got into an argument over her taking his “pills,” and he pulled “the tiger [sic].”

¶ 38. These two incriminating statements, which the jury was free to accept among the many contradictory ones, strongly support the State’s position that Adams acted with deliberate design. “Deliberate design ‘may be formed quickly and perhaps only moments before the act and may be inferred through the intentional use of any instrument which based on its manner of use is calculated to produce death or serious bodily injury.’ ” Porter v. State, 33 So.3d 535, 541 (11.20) (Miss.Ct. App.2010) (quoting Wilson v. State, 936 So.2d 357, 364 (¶ 17) (Miss.2006)).

¶ 39. The jury was also free to draw inferences of guilt from the numerous contradictory statements given by Adams. In addition to his inconsistencies about the shooting, Adams provided several conflicting statements about where authorities might locate the weapon, including that he had thrown it outside in the bushes. Yet a .22-caliber revolver containing five live rounds and one spent casing was eventually found in Adams’s mobile home. Investigator Kelly testified that Adams identified the gun as the weapon that had fired the fatal shot, though Adams denied this at trial.

1140. While the jury heard testimony that particles indicative of gunshot residue were found on both of Adams’s hands and on one of Roberts’s hands, an expert witness tendered in gunshot-residue analysis explained this bore no indication of who fired the weapon — merely that both were in close proximity to the pistol.

¶ 41. This case presents a classic jury question replete with credibility determinations. And we are reminded that it is the jury’s role, not ours, to determine the proper weight and credibility to give witness testimony and other evidence. Moore, 933 So.2d at 922 (¶ 43). Appellate courts “may not pass upon the credibility of witnesses,” and if the evidence justifies a verdict, we must accept it “as having been found worthy of belief.” Id. (quotations omitted).

¶ 42. Viewing the evidence in the light most favorable to the State, we find rational jurors could have found Adams guilty. And taking the evidence consistent with the verdict as true, along with the reasonable inferences to be drawn from that evidence, we find no manifest injustice has occurred.

¶ 43. THE JUDGMENT OF THE CLARKE COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLARKE COUNTY.

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

      . Deputy Davis could not identify to whom Adams was speaking.

      . This statement actually bears two dates. It is typewritten that the statement was obtained on April 3, although Adams apparently wrote the date of April 4 next to his signature. According to Investigator Kelly's testimony, Adams signed this statement on April 3.

      . In Adam’s initial suppression motion, he attacked his second typewritten statement given on April 3, 2004, for failure to give Miranda warnings. In his amended suppression motion, he seemed to specifically target the same statement, although the exhibit referred to is absent from the record. On appeal, he alleges a different statement — the handwritten statement obtained on April 4 — was involuntarily made.

      . During Investigator Kelly’s direct testimony, he indicated that he read Adams his Miranda rights again prior to Adams signing this first typewritten statement, although Investigator Kelly did not have Adams sign another written waiver.

      . We have included the substance of this exchange in its entirety and omitted the argu-merits and ruling on the State's objections to leading the witness.

      . The overruled cases are listed in the appendix to the specially concurring opinion. Id. at 1161.