text:
    Jeremy Neil PITTS a/k/a Jeremy Neal Pitts, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01034-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.
    Rehearing Denied April 19, 2011.
    Certiorari Denied July 28, 2011.

      Jim L. Davis III, George S. Shaddock, Pascagoula, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before LEE, P.J., ISHEE and MAXWELL, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Jeremy Pitts was found guilty in the Circuit Court of George County of murder. He was sentenced to life in the custody of the Mississippi Department of Corrections. Pitts filed a motion for a new trial and a motion for a judgment notwithstanding the verdict, which were denied by the trial court.

¶ 2. Pitts appeals, asserting the following issues: (1) the trial court erred in granting the elements instruction on murder proposed by the State and the self-defense instruction proposed by the State; (2) the jury received an erroneous instruction on manslaughter; (3) his counsel was ineffective; and (4) the evidence was insufficient to support the verdict. Finding no error, we affirm.

FACTS

¶ 3. Pitts testified that on April 1, 2007, he and Matthew Joseph Rogers, the victim, got into an argument over the phone. Both men were members of a gang called the Simon City Royals. Rogers told Pitts that he had gotten into an altercation over the phone with Jay Bullock, the leader of the gang, because Bullock had asked Rogers to “lay down his flag,” which meant to leave the gang. Because Rogers refused to leave the gang, Bullock ordered that Rogers be “violated,” or “called out for minutes,” which meant that the gang members would physically fight each other to settle their grievances. Rogers told Pitts that he was going to “shoot [Bullockj’s house up.” Pitts told Rogers not to do it because Bullock had an “old lady” and kids in the house. Pitts and Rogers started arguing over the phone. According to Pitts, Rogers threatened to kill him for taking up for Bullock.

¶ 4. On April 2, 2007, Ray Hancock and Kevin Davis, also members of the Simon City Royals, and Rogers assembled at Hancock’s house in George County, Mississippi, to “take care of this situation.” Pitts arrived at the house separately. Pitts testified that Rogers, Hancock, and Davis were upstairs “drinking and smoking.” Hancock’s wife, Amy, was also present. According to Amy, Pitts entered the house and said to Rogers: “MF, I got beef with you.” Pitts and Rogers began to argue. Pitts had a gun in his waistband under his shirt, and Hancock was holding Rogers’s gun. Pitts testified that Rogers asked Hancock to give the gun back; Hancock refused; and Pitts, Rogers, and Hancock began arguing. According to Pitts, in the midst of the argument, Rogers reached for the gun, and Pitts shot him. Pitts then left the scene. Bullock, who was waiting outside in Hancock’s yard, got in the car with Pitts. Pitts told Bullock that he had shot Rogers. Bullock responded: “That’s what he gets.” Pitts testified that he was fearful for his life and did not intend to kill Rogers.

¶ 5. Pitts, Hancock, and Davis were charged with Rogers’s murder. Hancock and Davis pleaded guilty to manslaughter.

DISCUSSION

I. JURY INSTRUCTIONS

¶ 6. Pitts argues that the State’s jury instruction S-2 combined the elements of deliberate-design murder and depraved-heart murder. No objection was made to this instruction at trial. Pitts argues the instruction is plain error because he was only indicted for deliberate-design murder. Pitts also argues that it was plain error for the trial court to deny his self-defense instruction.

1. Jury Instruction S-2 — Murder

¶ 7. Jury instruction S-2 states:

If you find from the evidence in this case beyond a reasonable doubt that:

3. The Defendant, Jeremy Neil Pitts, did willfully, feloniously, and with deliberate design kill Matthew Rogers by shooting the said Matthew Rogers with a deadly weapon, to-wit: a firearm; and
4. The killing was without authority of law and not in necessary self-defense,
then you are sworn to find the Defendant guilty of Murder;
OR

If you find from the evidence in this case, beyond a reasonable doubt that:

3. The Defendant, Jeremy Neil Pitts, did willfully, feloniously, and with deliberate design kill Matthew Rogers by shooting the said Matthew Rogers with a deadly weapon, to-wit: a firearm;
4. The killing was without authority of law and not in necessary self-defense, and
5. The killing was done during an act eminently [sic] dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of Matthew Rogers or any human being,
then you are sworn to find the Defendant, Jeremy Neil Pitts, guilty of Murder.

¶ 8. Pitts was indicted under Mississippi Code Annotated section 97 — 3—19(l)(a) (Rev.2006), which states: “The 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[.]” Pitts argues that the jury instruction was erroneous because it stated that he could be found guilty of murder if he evinced a “depraved heart.” The language referring to depraved-heart murder is contained in Mississippi Code Annotated section 97-3-19(l)(b) (Rev.2006), which states that murder is committed by an act “eminently [sic] dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual.” Pitts argues that this is further complicated by the handwritten verdict returned by the jury, which states: “We, the jury, find the defendant, Jeremy Neil Pitts, guilty of depraved[-]heart murder.”

¶9. In Young v. State, 891 So.2d 813, 820 (¶ 17) (Miss.2005), the Mississippi Supreme Court found no error in allowing a depraved-heart murder clause to be added to a deliberate-design jury instruction. In Young, the supreme court held that “our cases have for all practical purposes coalesced the two so that [sjection 97-3-19(1)(b) [depraved heart] subsumes (l)(a) [deliberate design].” Id. In its holding, the supreme court cited Mallett v. State, 606 So.2d 1092, 1095 (Miss.1992), which states that “[a]s a matter of common sense, every murder committed with deliberate design is by definition done in the commission of an act imminently dangerous to others, evincing a depraved heart.” Id. As the supreme court has held that there is no error in coalescing the two sections, this issue is without merit.

2. Jury Instruction S-6B — Self-Defense

¶ 10. The self-defense instruction, S-6B, states:

The Court instructs the Jury that to make a killing justifiable on the ground[ ] of self-defense, the danger to the Defendant must be either actual, present and urgent, or the Defendant must have reasonable grounds to apprehend a design on the part of some person to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the defendant was acting. If you, the Jury, unanimously find that the defendant acted in self-defense, then it is your sworn duty to return a verdict in favor of the defendant.

(Emphasis added).

¶ 11. Pitts argues that this jury instruction should have been denied based on the portion of the first sentence, which states: “the Defendant must have reasonable grounds to apprehend a design on the part of some person to kill him or to do him some great bodily harm.... ” (Emphasis added). Pitts argues that there were multiple people in the house when the shooting occurred, and the jury instruction was flawed because it failed to name a specific person. Pitts did not object to this instruction; in fact, his own proposed self-defense instruction, D-l, did not state a specific person but instead used the language: “some person.”

¶ 12. The standard of review for jury instructions is as follows:

The instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case. However, the trial judge may also properly refuse the instructions if he finds them to incorrectly state the law or to repeat a theory fairly covered in another instruction or to be without proper foundation in the evidence of the case.

Young, 891 So.2d at 819-20 (¶ 16) (quoting Howell v. State, 860 So.2d 704, 761 (¶ 203) (Miss.2003)).

¶ 13. We find that when read together, the jury instructions are clear that the person referred to in the self-defense instruction was Rogers. Pitts was indicted for Rogers’s murder, and Rogers was the only person who had threatened him with harm. Jury instruction S-2 makes clear that Rogers was the victim of the shooting. At no point did Pitts allege that he feared anyone else in the room besides Rogers. We find this argument is without merit.

II. MANSLAUGHTER

¶ 14. Pitts argues the jury incorrectly received an instruction on heat-of-passion manslaughter when it should have been instructed on another theory of manslaughter, such as imperfect self-defense.

¶ 15. The imperfect self-defense theory is as follows: “an intentional killing may be considered manslaughter if done without malice but under a bona fide (but unfounded) belief that it was necessary to prevent death or great bodily harm.” Wade v. State, 748 So.2d 771, 775 (¶ 12) (Miss.1999) (citing Lanier v. State, 684 So.2d 93, 97 (Miss.1996)).

¶ 16. While the theory of imperfect self-defense was not raised at trial, Pitts now argues that it was plain error for the trial court to grant an instruction for heat-of-passion manslaughter but not imperfect self-defense. He argues the evidence did not support an instruction for heat-of-passion manslaughter; rather, some alternative form of a manslaughter instruction should have been given. The jury was given three separate instructions on manslaughter. Jury instruction S-3 states that if the State failed to prove every element of murder, then manslaughter may be considered. Jury instruction S-8 instructed the jury on heat-of-passion manslaughter. Jury instruction D-3 instructed the jury that if it found that Pitts had shot Rogers without malice or deliberate design, then it could find Pitts guilty of manslaughter. The jury was also given a self-defense instruction.

¶ 17. “Not every instruction need cover every point of importance, so long as the point is fairly presented elsewhere.” Taylor v. State, 597 So.2d 192, 195 (Miss.1992). We find that Pitts’s theory of defense was fairly presented to the jury. Pitts was given several manslaughter instructions, as well as a self-defense instruction. He did not propose an imperfect self-defense instruction at trial, and we cannot find that it was plain error that the instruction was not given. This issue is without merit.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 18. Pitts argues that his counsel was ineffective for the following reasons: (1) he failed to object when the State called Rogers’s mother to testify; (2) he did not know what the key witnesses for the State would say; (3) he failed to object to the introduction of a gang-related document being introduced into evidence; (4) he failed to object to certain evidence given to the jury; (5) he failed to object to certain jury instructions; (6) he failed to request a proper manslaughter instruction; (7) he referenced gang activity in front of the jury; and (8) he failed to move to suppress Pitts’s statement to law enforcement.

¶ 19. As a general rule, claims of ineffective assistance of counsel are better suited for consideration in post-conviction-relief proceedings. Pittman v. State, 836 So.2d 779, 788 (¶ 43) (Miss.Ct.App.2002). The merits of an ineffective-assistance-of-counsel claim on direct appeal should be addressed only when “(1) the record affirmatively show[s] ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999). Review on direct appeal of an ineffective-assistance-of-counsel claim is confined strictly to the record. Id. at 1102 (¶ 6).

¶ 20. To prove ineffective assistance of counsel, Pitts must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland, v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Id. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

¶ 21. Pitts argues that the testimony of the victim’s mother, Glenda Rogers, was prejudicial and inflammatory. Glenda was the State’s first witness. During her testimony, Glenda identified a picture of her son, stated that Rogers and Pitts were friends, and testified that she received a letter that referenced Rogers’s death from Pitts while he was incarcerated. Pitts asserts Glenda presented no relevant testimony, and she was nothing more than a “victim-impact” witness. Although Pitts’s attorney did not object to Glenda being called as a witness, he objected to the admission of four pages of gang-related documents that Glenda found in Rogers’s room. The objection was sustained. Pitts’s attorney also objected to Glenda’s testimony as to her feelings about Rogers’s membership in the gang. This objection was also sustained. A counsel’s choice of whether or not to make certain objections falls within the ambit of trial strategy. Scott v. State, 742 So.2d 1190, 1196 (¶ 14) (Miss.Ct.App.1999). We cannot find that a reasonable probability exists that absent Glenda’s testimony the outcome in this case would have been different. Even if Pitts could prove that his attorney should have objected to the testimony, Pitts has failed to show that his failure to do so prejudiced Pitts’s defense.

¶22. Next, before opening statements, Pitts’s attorney asked the trial court to allow him to interview two of the State’s witnesses, Hancock and Davis, because he did not know what they were going to say when they testified. Pitts’s attorney stated that he had received a copy of the witnesses’ proposed testimonies, but he had not personally interviewed them. The trial court denied his request. During opening statements, Pitts’s attorney told the jury he had not been allowed to speak with the State’s witnesses because the witnesses’ attorneys had prevented him from doing so. Pitts does not state how this made his counsel deficient or how this prejudiced his defense. Pitts’s attorney stated that he had received information from the State on the proposed testimonies of these witnesses. We find that this argument is without merit.

¶ 23. As for the mention of gang-related activity, we note that Pitts’s attorney repeatedly objected to the introduction of any evidence that would show Pitts was a gang member. His attorney’s objections were overruled by the trial court based on Hoops v. State, 681 So.2d 521, 530-81, 537 (Miss.1996) (holding that evidence of gang membership can be admitted into evidence if the probative value of its introduction outweighs its prejudicial effect). We find that this argument is without merit.

¶ 24. Pitts next argues that his counsel failed to propose or object to certain jury instructions. The choice of whether or not to make certain objections falls within the ambit of trial strategy. Scott, 742 So.2d at 1196 (¶ 14). As we have found that the jury instructions sufficiently instructed the jury on Pitts’s theory of the case, we cannot find that his attorney was ineffective on this ground.

¶ 25. Finally, Pitts argues that his statement to law enforcement was only made after promises of leniency, and his counsel should have filed a pretrial motion to suppress his confession. At no time during trial did Pitts indicate that his confession was coerced. Pitts voluntarily went to the sheriffs department to give a statement. We find that the record before us on appeal is insufficient to affirmatively show ineffective assistance of counsel of constitutional dimensions.

IV. SUFFICIENCY OF THE EVIDENCE

¶ 26. In challenging the legal sufficiency of the evidence, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that 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)). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of the crime existed, this Court will affirm the denial of a motion for a directed verdict. Id. But if the facts and inferences “point in favor of the defendant on any element of the offense with sufficient force” that no reasonable juror could have found beyond a reasonable doubt that the defendant was guilty, then we must reverse and render. Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 27. Mississippi Code Annotated section 97 — 3—19(1)(a)—(b) states:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:
(a) When done with deliberate design to effect the death of the person killed, or of any human being;
(b) When done in the commission of an act eminently [sic] dangerous to others and evincing a depraved heart, regardless of human life, although without any! premeditated design to effect the death of any particular individual[.]

¶28. Pitts admitted to the jury that Rogers was unarmed when he shot him. All the witnesses confirmed that Rogers was unarmed. Several people were present in the room, and others, including an infant, were present in the house. Pitts left the scene without ensuring that Rogers received medical assistance. The jury also' heard Pitts’s testimony that he feared that Rogers might harm him because of an altercation they had during a phone conversation. The jury received instructions on murder, manslaughter, and self-defense. It was for the jury to decide whether the elements of murder were proven by the State. Viewing the evidence in the light most favorable to the State, we find that the evidence was legally sufficient to support the verdict. This issue is without merit.

¶ 29. THE JUDGMENT OF THE GEORGE 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 THE APPELLANT.

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


source: Caselaw Access Project

author: ISHEE, J„

license: Public Domain

text:
    Patrick William COX, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-02140-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.
    Rehearing Denied April 26, 2011.
    Certiorari Denied July 28, 2011.

      William R. Labarre, Virginia Lynn Watkins, Alison Oliver Kelly, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J„

for the Court:

¶ 1. On September 22, 2008, Patrick W. Cox was tried before a Hinds County Circuit Court jury for carjacking, kidnapping, and the forcible rape of J.R. On September 29, 2008, the jury returned a verdict of guilty on all three counts. After denial of his post-trial motions, Cox filed this appeal. Finding no error, we affirm.

FACTS

¶ 2. On November 11, 2007, J.R., while filling her car with gas, was approached by a man, later identified as the defendant, Cox, who threatened to kill her if she did not do what he said. Cox forced J.R. into the backseat of her Chevrolet Equinox, and as she pleaded for him to release her, Cox drove away from the gas station. J.R. remembered she had her cell phone in her back pocket, and as discretely as possible, she dialed numbers in an effort to be rescued. She first dialed 911; not knowing if her call had been received, she then dialed her friend, Maria Wright, and then her ex-husband, Gregory Young. J.R. left the phone on while she continued to plead with Cox to let her go.

¶ 3. Cox eventually pulled the car over and got into the backseat with J.R. and demanded that she remove her clothes. J.R. testified that Cox began to lick her neck and breast, and once J.R. removed her clothes, Cox raped her. Fortunately, as Cox was distracted by another vehicle passing by, J.R. was able to escape from her backseat and run to a BP gas station operated by Willie Harris. Harris let J.R. into his store, found her something to cover up with, and called the police.

¶ 4. J.R. was then taken to the University of Mississippi Medical Center (UMC). While at the hospital, J.R. was interviewed by Martha Pentecost, a UMC social worker, and Patty Welch, a UMC registered nurse. Jackson Police Officer Taafee N. Hughes and Detective Kimberly Brown were also present for the interview. In the interview, J.R. told Pentecost and Welch that she had been kidnapped and forced into her car against her will. She further testified that she was raped, and a rape kit was then prepared to test J.R.’s person. Welch also noted that she found “redness” on J.R.’s labia minor.

¶ 5. Just off Highway 49, Officer Malcom Macon found J.R.’s vehicle. As Officer Macon focused his flashlight on J.R.’s car, someone jumped out of the car and began to run. Deputy Jon Cooley accompanied by a dog tracker, Stella, was also at J.R.’s abandoned car. After acquiring a scent from the front seat of J.R.’s car, Stella began to move north; eventually, Stella made her way to a clearing and stopped beside a different abandoned car, where officers found Cox inside. Officer Macon testified that when they found Cox, he was sweating, panting, and acting “very nervous.”

¶ 6. During Detective Brown’s interview of J.R., officers presented J.R. with a photographic lineup of suspects also found in abandoned cars in the clearing. Brown testified J.R. became hysterical when she saw the photograph of Cox, exclaiming “that’s him.”

¶ 7. At trial, two DNA analysts testified on behalf of the State. Gina Pineda testified she had found sufficient genetic material to determine that Cox’s DNA profile was present on J.R.’s breast and neck. Further, she testified the black hat found by Officer Charles Taylor in J.R.’s abandoned car also had sufficient genetic material to determine it was Cox’s DNA present on the hat. Katryn Moyse, another DNA analyst, testified she also found sufficient genetic material to determine that Cox’s DNA profile was present “inside” J.R.’s vagina.

¶ 8. Based on discrepancies in the testimonies of investigators regarding who had taken the rape kits to the laboratory for analysis, Cox objected to the admittance of the rape kits that were performed on J.R. and Cox. Because there was no evidence of tampering or any break in the chain of custody, the trial court admitted the rape kits into evidence. Cox also objected to the testimony of Pentecost on the ground that her testimony was hearsay; this objection was also overruled by the trial court.

¶ 9. Cox also objected to the trial court giving jury instruction S-4, claiming the language used in the instruction significantly broadened the crime of rape, which subjected him to an ex-post-facto law in violation of his constitutional rights. After a review of the statutory amendments and a review of the relevant case law, the trial court decided jury instruction S-4 did not alter or substitute new elements for rape and was, therefore, permissible.

¶ 10. A Hinds County jury found Cox guilty on all three counts, and he received consecutive sentences of thirty, twenty-eight, and fifteen years in the custody of the Mississippi Department of Corrections. Aggrieved, Cox has filed this appeal. Finding no error, we affirm.

DISCUSSION

I. Jury Instruction

¶ 11. Cox first asserts that the trial court committed reversible error in giving instruction S-4 and in denying instructions D-6 and D-7. He argues the instruction S-4 impermissibly subjected him to an ex-post-facto law in violation of his constitutional rights.

¶ 12. The standard for review in challenging a jury instruction is well settled: “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole[; w]hen so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Davis v. State, 909 So.2d 749, 752 (¶ 11) (Miss.Ct.App.2005) (citation omitted). Moreover, “[a] defendant is entitled to have jury instructions given which present his theory of the case[;] however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Smith v. State, 802 So.2d 82, 88 (¶ 20) (Miss.2001) (citations omitted).

¶ 13. Cox was indicted under Mississippi Code Annotated section 97-3-65(6) (Rev.2006). On November 11, 2006, the date that the crime occurred, section 97-3-65(6) stated:

For the purposes of this section, “sexual intercourse” shall mean 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.

In 2007, the Mississippi Legislature amended 97-3-65(6) to make the crime gender neutral. After 2007, section 97-3-65(6) now reads as follows:

For the purposes of this section, “sexual intercourse” shall mean 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.

¶ 14. After hearing arguments from both sides, and after reviewing the changes in the statute and the relevant case law, the trial court found that jury instruction S-4 was a proper instruction. Although it is true the statute was changed after the crime was committed, the change did not alter or significantly broaden the crime that was committed against J.R. In fact, the statute was changed in order to make the crime of forcible rape gender neutral. Cox was indicted for the forcible rape of a female. Had he been charged with the forcible rape of a male, we may have come to a different conclusion. After a review of the instructions as a whole, we find that the trial court gave an accurate recitation of the law; therefore, this issue is without merit.

II. Chain of Custody

¶ 15. Cox argues that the trial court improperly admitted the rape kits performed on J.R. and Cox. He claims that, because there was a contradiction in the testimonies of those responsible for the chain of custody, the rape kits should not have been admitted into evidence.

¶ 16. The Mississippi Supreme Court has held that “the test of whether there has been a proper showing of the chain of possession of evidence is whether there is any indication or reasonable inference of probable tampering with the evidence or substitution of the evidence.” White v. State, 722 So.2d 1242, 1244 (¶ 12) (Miss.1998) (citations omitted). However, “the burden to produce evidence of a broken chain of custody (i.e., tampering) is on the defendant.” Id. at 1245 (¶ 13). Additionally, “[mjatters regarding the chain of custody of evidence are largely left to the discretion of the trial judge, and ‘unless this judicial discretion has been so abused as to be prejudicial to the defendant, this Court will not reverse the ruling of the trial court.’ ” Doby v. State, 532 So.2d 584, 588 (Miss.1988) (quoting Morris v. State, 436 So.2d 1381, 1388 (Miss.1983)).

¶ 17. Although it is true that Officer Wayne Monroe and Officer Kenny Lewis both testified as to being the one who had delivered the rape kits to the Scales Laboratory for testing, the trial court concluded that any discrepancies regarding who had taken the kits to the lab, and then returned them after testing, could be dealt with on cross-examination. Further, both DNA analysts who ran tests on the rape kits gave testimony regarding the condition of the kits, and both agreed that there was no evidence of contamination or degradation when the kits were submitted for testing. Cox has failed to produce evidence of a broken chain of custody. Moreover, no abuse of judicial discretion has been demonstrated here. This claim is devoid of merit.

III. Hearsay Testimony

¶ 18. Cox next takes issue with the admittance of Pentecost’s testimony believing the testimony does not meet the requirements of Mississippi Rule of Evidence 803(4). Rule 803(4) exempts statements made for purposes of medical diagnosis and treatment from the otherwise stringent prohibition against hearsay, regardless of the availability of the declar-ant. M.R.E. 803(4). Specifically, the rule states:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. For purposes of this rule, the term “medical” refers to emotional and mental health as well as physical health.

¶ 19. This Court applies an abuse-of-discretion standard of review regarding the admissibility of testimonial evidence. Harris v. State, 861 So.2d 1003, 1018 (¶ 41) (Miss.2003). We leave such admissions to the sound discretion of the trial judge, and reversal is only warranted when the abuse of discretion prejudices the accused. Id.

¶ 20. Cox argues that because Pentecost is not a diagnostician, her testimony is inadmissible. The rule states that if the trial court finds the circumstances surrounding the statement indicate substantial trustworthiness, the statement can be admitted regardless as to whom the statement was made. The trial court found that because the statements were made after J.R. had just been brought into the hospital and because they were made in the company of a nurse and a police officer, there was enough trustworthiness to admit the statements. Furthermore, Pentecost’s testimony was corroborated by a UMC registered nurse, Welch, and J.R. herself. Accordingly, this issue is without merit.

IV. Sufficiency of Evidence

¶ 21. In his fourth assignment of error, Cox asserts that there was insufficient evidence to support a guilty verdict. We disagree. In Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.Ct.App.2005), the supreme court reiterated the standard of review for a sufficiency-of-the-evidenee claim, stating:

[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for [a] judgment notwithstanding the verdict, 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.”

The supreme court went on to clarify itself, stating that the inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560, (1979)).

¶ 22. We find that, after a review of the record, there was sufficient, credible, substantial evidence for the jury to consider and return a verdict of guilty. J.R.’s use of her cell phone during the attack, the DNA analysts who corroborated her testimony, and the fact that the nurse found “redness” or “erythema” on J.R.’s labia minor all point to a verdict of guilty. Therefore, this issue is without merit.

V. Civil Suit

¶23. Cox, on his final issue for appeal, asserts that the trial court’s decision to exclude evidence of a civil action, which was filed by J.R. against the convenience store where she was abducted, unfairly prevented him from being able to show bias or prejudice on the part of J.R. This Court’s review of the admission of evidence is limited. The standard of review for the admission or exclusion of evidence is abuse of discretion. Williams v. State, 991 So.2d 593, 597 (¶ 8) (Miss.2008) (citing Brown v. State, 969 So.2d 855, 860 (¶ 13) (Miss.2007)). Therefore, “a trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the [appellate court] will not reverse [the] ruling.” Id. (quoting Shaw v. State, 915 So.2d 442, 445 (¶ 8) (Miss.2005)).

¶ 24. The trial court found that, under Mississippi Rule of Evidence 401, any mentioning of the civil suit would not be relevant to the guilt or innocence of Cox regarding the charges submitted to the jury. Further, the trial court found that, even if the evidence was considered relevant, it could be excluded under Mississippi Rule of Evidence 403.

¶ 25. “[Mississippi Rule of Evidence] 403 is the ultimate filter through which all evidentiary objections eventually flow.” Ware v. Entergy Miss., Inc., 887 So.2d 763, 774 (¶ 29) (Miss.2003). “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” M.R.E. 403. Here, the trial court found that any mention of the civil suit filed by J.R. would be highly prejudicial and misleading to the jury. Cox has offered no compelling argument as to how the trial court abused its discretion in not allowing the testimony. Accordingly, this final issue is also without merit.

¶ 26. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, FORCIBLE RAPE, AND SENTENCE OF TWENTY-EIGHT YEARS; COUNT II, CARJACKING, AND SENTENCE OF FIFTEEN YEARS; AND COUNT III, KIDNAPING, AND SENTENCE OF THIRTY YEARS, WITH SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . Instruction S-4 states: "... some penetration of the sexual organ of the female by the sexual organ of the male must be proved. However, it need not be full penetration. Proof of the slightest penetration of the sexual organ of the female by the sexual organ of the male is proof of sexual intercourse. It is not necessary that the vagina be entered or that the hymen by ruptured; the entering of the vulva or labia by the male sex organ is sufficient.”


author: GRIFFIS, J„

text:
    Barbara ARMSTRONG and Robert M. Hill, Appellants v. MISSISSIPPI FARM BUREAU CASUALTY INSURANCE COMPANY, Appellee.
    No. 2010-CA-00041-COA.
    Court of Appeals of Mississippi.
    Jan. 11, 2011.
    Rehearing Denied May 3, 2011.
    Certiorari Denied July 28, 2011.

      James E. Price Jr., Corinth, attorney for appellants.
    H. Scot Spragins, Oxford, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J„

for the Court:

¶ 1. Mississippi Farm Bureau Casualty Insurance Company sued to recover payments made to Barbara Armstrong and Robert M. Hill to cover medical expenses resulting from an automobile accident. The Alcorn County Circuit Court granted summary judgment to Farm Bureau. On appeal, Armstrong and Hill argue the circuit court was in error. They argue that Farm Bureau could not recover because they were not made whole and that Farm Bureau could . not recover because it waived its right to recovery.

FACTS

¶ 2. In the fall of 2006, Armstrong and Hill were in Armstrong’s pickup truck. Hill was driving, and Armstrong was in the passenger seat. While stopped at a traffic light, they were struck from behind by a delivery truck owned by Flowers Baking Company and driven by a Flowers’ employee. In the months following the accident, Armstrong and Hill were treated for injuries resulting from the accident.

¶ 3. Armstrong, as the owner of the pickup truck, had an automobile insurance policy with Farm Bureau. Pursuant to the policy, Farm Bureau covered Armstrong’s and Hill’s medical expenses — $2,982.81 for Armstrong and $3,075.32 for Hill. These payments are the subject of this litigation.

¶ 4. Armstrong’s Farm Bureau policy contained a subrogation provision. The policy stated:

If we make a payment under this policy and the person to or for whom the payment was made has a right to recover damages from another, we shall be sub-rogated to that right.... If we make a payment under this policy and the person to or for whom payment is made recovers damages from another, that person shall: 1. Hold in trust for us the proceeds of the recovery; and 2. Reimburse us to the extent of our payment.

¶ 5. Shortly after the accident, Armstrong and Hill retained an attorney, James E. Price Jr., to represent them in the litigation against Flowers. Price wrote a letter to Farm Bureau that informed Farm Bureau of his representation. Price assured Farm Bureau that it would receive its subrogation interest if the litigation against Flowers was successful. Price stated, “[w]hen we are successful ... we will repay your subrogation claim, less your pro rata share of the attorney’s fees.”

¶ 6. Farm Bureau responded, “[a]t this time we ... will subrogate against Allstate Insurance Company, who [sic] is [the employee’s] carrier of his liability coverage.” Over the next two years, Farm Bureau sent Flowers’ liability insurer, ESIS, at least five letters demanding subrogation. ESIS never complied.

¶ 7. Meanwhile, during those two years, Price and Flowers engaged in settlement negotiations. They were unable to reach an agreement. The case proceeded to trial in the fall of 2008. At the end of trial, the jury returned verdicts in the amount of $4,411 for Armstrong and $3,735.30 for Hill.

¶8. Thereafter, Farm Bureau wrote a letter to Price that demanded Armstrong and Hill pay Farm Bureau’s subrogation interest — $6,058.03 in total — out of the judgment. Price responded and refused to comply with Farm Bureau’s demands.

¶ 9. Farm Bureau then filed suit in the Circuit Court of Alcorn County. Farm Bureau sought a judgment in the amount of $6,058.03. The parties filed cross-motions for summary judgment. The circuit court granted Farm Bureau’s motion, denied Armstrong’s and Hill’s motion, and entered a judgment in favor of Farm Bureau for the total amount of $6,058.03. It is from this judgment that Armstrong and Hill appeal.

STANDARD OF REVIEW

¶ 10. The standard of review of an order granting summary judgment is de novo. PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 49 (¶ 8) (Miss.2005) (citing Hurdle v. Holloway, 848 So.2d 183, 185 (¶4) (Miss.2003)). It is well settled that “[a] summary judgment motion is only properly granted when no genuine issue of material fact exists. The moving party has the burden of demonstrating that no genuine issue of material fact exists within the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.’ ” Id. (internal citations omitted).

ANALYSIS

1. Did the judgment make Armstrong and Hill whole as a matter of law?

¶ 11. Armstrong and Hill argue that they should not be required to pay the subrogation lien to Farm Bureau because the judgment they received in their lawsuit against Flowers was inadequate to make them whole. In other words, they assert that their true damages were greater than the amount of the judgment, and under Mississippi law, until they are fully compensated for their injuries, they cannot be required to reimburse Farm Bureau.

¶ 12. When an insurer makes payments to an insured to cover a loss and the insured has a claim against a third party to recover for that same loss, the insurer steps into the shoes of the insured and acquires the right to recover from that third party the amount paid to the insured. St. Paul Prop. and Liab. Ins. Co. v. Nance, 577 So.2d 1288, 1240-41 (Miss.1991). Subrogation can be either contractual or equitable. Id. at 1240. The purposes of subrogation are to prevent the insured from recovering twice for the same loss and to reimburse the insurer when a third party should be required to pay for the loss. 83 C.J.S. Subrogation § 3 (2000).

¶ 13. Here, Armstrong’s insurance policy granted Farm Bureau a right to contractual subrogation. The policy provided that Farm Bureau could recover from the third party, or if Armstrong recovered from the third party, she would have to hold the proceeds in trust and repay Farm Bureau. If this contract provision is given force, Farm Bureau prevails.

¶ 14. However, Mississippi has adopted the “made whole” rule. Hare v. State, 733 So.2d 277, 284 (¶ 27) (Miss.1999). Under this rule, an insurer cannot recover subrogation until the insured has been fully compensated for his losses. Id. An insurance policy cannot override this rule by contract. Id.

¶ 15. Here, Armstrong and Hill argue that the judgment they received in their claim against Flowers was insufficient to make them whole. Therefore, they contend Farm Bureau cannot recover the medical payments at issue. On the other hand, Farm Bureau claims that the judgment made Armstrong and Hill whole as a matter of law or, in other words, that Armstrong and Hill are collaterally es-topped from attacking the judgment.

¶ 16. Mississippi has yet to address this specific issue; however, some of our sister states have. These states agree with Farm Bureau and hold that, in cases like this one, a judgment obtained against a tortfeasor conclusively makes the insured whole. “An insured’s argument that it was not made whole by the amount of a court judgment has been rejected by several courts which have concluded that a jury verdict constitutes full recovery for purposes of determining whether an insurer is entitled to subrogation.” Couch on Insurance § 223:161 (3d ed.2000) (citing Tampa Port Auth. v. M/V Duchess, 65 F.Supp.2d 1299, 1302 (M.D.Fla.1997) (applying Florida law); Bartunek v. Geo. A. Hormel & Co., 2 Neb.App. 598, 513 N.W.2d 545 (1994); United Pac. Ins. Co. v. Boyd, 34 Wash.App. 372, 661 P.2d 987, 990 (1983); Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis.2d 263, 316 N.W.2d 348, 354 (1982)).

¶ 17. This is a specific application of the general rule of collateral estoppel or issue preclusion. Under the general rule, a party is precluded “from relitigating in a subsequent action a specific issue actually litigated and determined by and essential to the judgment in a former action, even though a different cause of action is the subject of the subsequent action.” Lee v. Wiley Buntin Adjuster, Inc., 204 So.2d 479, 481 (Miss.1967).

¶ 18. Armstrong’s and Hill’s damages were actually litigated and decided. At their trial, the jury was instructed to award actual or compensatory damages “in an amount which will reasonably compensate for [the] loss sustained.” The instructions stated that such damages “are awarded for the purpose of making the [plaintiffs] whole again.” After hearing all of the evidence and being given those instructions, the jury returned verdicts of $4,411 for Armstrong and $3,735.30 for Hill. The jury determined these were the amounts necessary to make them whole.

¶ 19. We find that Armstrong and Hill are collaterally estopped from attacking that judgment in the present case. Therefore, Armstrong and Hill were made whole as a matter of law, and this defense to Farm Bureau’s subrogation claim fails. The circuit court’s finding was correct as to this issue.

2. Did Farm Bureau waive its right to subrogation?

¶ 20. Armstrong and Hill also argue that Farm Bureau waived its right to recover subrogation from them by its conduct over the two years following the accident.

¶ 21. The Farm Bureau policy provided: “[I]f we make a payment under this policy and the person to or for whom payment is made recovers damages from another, that person shall: 1. Hold in trust for us the proceeds of the recovery; and 2. Reimburse us to the extent of our payment.” If this provision is enforced, Farm Bureau prevails.

¶ 22. However, an insurer can waive its right to subrogation. A waiver is “the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.” Bellemere v. Geico Gen. Ins. Co., 977 So.2d 363, 369 (¶ 12) (Miss.Ct.App.2007) (citations omitted). “Since the right of subrogation arises for the benefit of the insurer, it may waive its right to subrogation, either by contract or by conduct inconsistent with the right of subrogation, and the waiver may be either express or implied.” Couch on Insurance § 224:139 (3d ed.2000). The party claiming the waiver of an important policy provision must prove it by clear and convincing evidence. New Hampshire Ins. Co. v. Smith, 357 So.2d 119, 121 (Miss.1978) (citing Michigan Millers Mut. Ins. Co. v. Lindsey, 285 So.2d 908, 911 (Miss.1973)).

¶ 23. Shortly after the accident, in the fall of 2006, Price wrote a letter to Farm Bureau in which he assured them that he would pay their subrogation interest after he succeeded in litigation against Flowers. Farm Bureau, by letter, responded: “At this time we ... will subrogate against Allstate Insurance Company, who is [the employee’s] carrier of his liability coverage.” Over the next two years, Farm Bureau sent at least five letters to ESIS, the liability insurer for Flowers, demanding that ESIS pay subrogation, which it never did. Meanwhile, Armstrong and Hill prosecuted their case against Flowers. Farm Bureau neither notified Price that it would demand a portion of a judgment or settlement obtained against Flowers, nor did Farm Bureau intervene in the suit after it commenced. Rather, Farm Bureau was content to pursue its subrogation interest entirely independent of the ongoing case. It was not until two years after the accident, after Price had succeeded at trial, that Farm Bureau ever asserted its right to a portion of the proceeds.

¶24. Armstrong and Hill contend that this course of conduct establishes that Farm Bureau elected to pursue subrogation exclusively against Flowers’ liability insurer and effectively waived any right to recover subrogation from them. Farm Bureau argues that it relied on Price’s assurance that it would be paid subrogation if the litigation against Flowers was successful and that its conduct was not sufficient to constitute a waiver.

¶ 25. Waiver is a fact question for the jury, unless the evidence is so clear that reasonable minds could not differ. 13 Williston on Contracts § 39:21 (4th ed.2000); See also State Farm Mut. Auto. Ins. Co. v. Lindsey, 388 So.2d 1189, 1193 (Miss.1980); Lincoln Nat’l Life Ins. Co. v. Crews, 341 So.2d 1321, 1322 (Miss.1977); Commercial Union Fire Ins. Co. v. Kelly, 144 Miss. 833, 840, 110 So. 681, 682-83 (1927). Armstrong and Hill came forward with enough evidence to survive summary judgment on this issue. For some reason, the circuit court did not address waiver in its order, so we cannot determine its reasoning on this issue. However, based on the record before us, neither party has demonstrated they are entitled to judgment as a matter of law on this issue.

¶ 26. We find that this issue raises a genuine issue of material fact, and neither party was entitled to judgment as a matter of law. The circuit court’s grant of summary judgment to Farm Bureau on the issue of waiver is reversed, and this case is remanded for further proceedings consistent with this opinion.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF ALCORN COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANTS AND THE APPELLEE.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: ROBERTS, J., CARLTON, J.,

text:
    Debbie MILLS, Appellant v. CITY OF WATER VALLEY, Mississippi, Appellee.
    No. 2010-KM-00263-COA.
    Court of Appeals of Mississippi.
    June 14, 2011.

      Tommy W. Defer, Water Valley, attorney for appellant.
    Daniel M. Martin, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. In the Water Valley Municipal Court, Debbie Mills was convicted of simple assault domestic violence for causing physical bodily injury to Timothy Tidwell, her then boyfriend, by biting him and striking him with a closed fist. Mills appealed to the Yalobusha County Circuit Court, which also found her guilty. She then filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a motion for a new trial. The circuit court denied both motions. Mills now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 17, 2009, two Water Valley police officers responded to a radio dispatch regarding a physical disturbance between a man and woman at Mills’s home. Upon exiting his patrol car, Officer Christopher Blair heard screaming coming from inside the home. Officer Blair and Officer Steven Story entered the home where they saw Mills being restrained by her grandson in an apparent effort to keep her away from Tidwell. The grandson was holding Mills’s arms behind her back. Officer Blair testified that Mills was kicking and squirming against her grandson’s restraint to get to Tidwell. He also testified that she was cursing and screaming at the officers to get out of her house and that she wanted to kill Tidwell. Tidwell was also screaming and telling the officers to get Mills out of the house. Officer Blair noticed blood coming from Mills’s mouth and that one of her teeth was broken in half. The officers arrested Mills and placed her in the back of the patrol car. They then called an ambulance, questioned Tidwell about the events, and took pictures of his injuries. Tidwell declined any medical assistance, and no proof was presented that either party received medical treatment. The circuit court sustained hearsay objections made by Mills’s counsel to any statements Tidwell made as regarding who might have bitten or hit him.

¶ 3. In addition to the pictures of Tid-well’s injuries entered into evidence, Officer Blair further testified as to Tidwell’s injuries. Although he stated that he did not see who had inflicted the injuries to either party, Officer Blair noted that upon his arrival to the home, he observed that Tidwell’s shirt was torn; and there were large apparent bite marks on Tidwell’s chest and back; a small cut on the cheek, back, and bridge of his nose; and bruises on his back. Officer Blair further testified that Mills had bloodshot eyes and smelled of alcoholic beverage.

¶ 4. On July 9, 2009, the Water Valley Municipal Court convicted Mills of simple assault domestic violence for causing physical bodily injury to Tidwell by biting him and striking him with a closed fist. Following her conviction, Mills filed a petition for an ex parte domestic-violence protective order against Tidwell on July 10, 2009. In her petition, she stated that she and Tidwell had a domestic relationship. She also stated that she sought the protective order because she was “placed, by physical menace or threat, in fear of imminent serious bodily injury” by Tidwell. Mills then appealed her conviction to the circuit court for a de novo trial.

¶ 5. The circuit court conducted a bench trial on October IB, 2009. The sworn affidavit signed by Officer Blair charged Mills with the following: “On the 17th day of May, 2009, did unlawfully, and willfully, did purposely and unlawfully commit an act of domestic violence in that she caused bodily injury to Timothy Tidwell by striking him with closed fist and biting him on several locations of Mr. Tidwell[’s] body.” At trial, the City’s case rested on the testimonies of three witnesses. Officers Blair and Story testified about the events of the night in question. Vivian Snider, city clerk for Water Valley, testified about the ex parte protective order that Mills received protecting her against Tidwell. Tidwell, although subpoenaed to appear and personally served with a witness subpoena the day before trial, failed to appear at the trial and did not testify. Mills rested her case without presenting any evidence and moved the circuit court for a directed verdict on the ground that the City had failed to meet its burden of proof. The circuit judge denied her motion for a directed verdict and found her guilty of simple assault domestic violence. He ordered her to pay a $300 fine plus court costs and attend and complete an anger management program.

¶ 6. Mills filed a motion for a JNOV or, in the alternative, a motion for a new trial. The circuit judge denied both motions. Feeling aggrieved by the denial of her motions, Mills appeals raising the issue that the circuit court erred in denying her motion for a JNOV or motion for a new trial.

ANALYSIS

¶ 7. Mills of was convicted of simple assault domestic violence in violation of Mississippi Code Annotated section 97-8-7 (Supp.2010). Mississippi Code Annotated section 97-3-7(1) provides the elements that must be proven for a conviction of simple assault. The City in this case was required to prove that Mills had committed simple assault by “purposely, or knowingly or recklessly causing bodily injury to [Tidwell] ...” by striking him with closed fist and biting him. A conviction of simple assault domestic violence requires proof of simple assault against “a person who has a current or former dating relationship with the defendant....” Miss.Code Ann. § 97-3-7(3).

¶ 8. By filing motions for a JNOV or a new trial, Mills is challenging both the legal sufficiency and the weight of the evidence.

I. Motion for a JNOV

¶ 9. Mills first argues that the circuit court erred in denying her motion for a JNOV because the evidence presented at trial was not legally sufficient to support a conviction of simple assault domestic violence. The critical inquiry when considering whether there is sufficient evidence to sustain Mills’s conviction is “whether the evidence shows ‘beyond a reasonable doubt that [Mills] committed the act charged, and that [she] 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)). When reviewing challenges to the legal sufficiency of the evidence, the evidence and the inferences taken from the evidence must be viewed in the light most favorable to the prosecution. Id. This Court does not have to “[believe] that the evidence at trial established guilt beyond a reasonable doubt”; instead, we must determine if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 10. “When the [prosecution]’s case rests on circumstantial evidence, the evidence must be sufficient to prove guilt beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis consistent with innocence.” Goff v. State, 14 So.3d 625, 647 (¶ 75) (Miss.2009) (citing Billiot v. State, 454 So.2d 445, 461 (Miss.1984)). The City acknowledges this is a totally circumstantial-evidence case since there is no eyewitness testimony to the gravamen of the offense, i.e., the striking of Tidwell with closed fist or biting him on several locations of his body. In its brief, the City asserts that: “While [Mills] was convicted using circumstantial evidence, the evidence points toward a conclusion beyond a reasonable doubt that Debbie Mills is guilty of domestic simple assault. There was no alternative hypothesis as to how the injuries were received by the victim, Timothy Tidwell.” We disagree. The City’s case was based solely on the testimony of the two officers who responded to the scene after an apparent physical altercation had occurred between Tidwell and Mills. Neither witness saw Mills strike anybody with a closed fist nor bite anyone. Later, the city clerk issued Mills a protective order against Tidwell after the incident. Tidwell did not testify as to how he had received his injuries; in fact, he was not present at the trial even after being subpoenaed. Objections to what Tidwell told the officers at the scene were sustained. Mills did not confess to committing the assault, nor was there any eyewitness testimony as to the incident or how any of the injuries had occurred.

¶ 11. Further, we find that there are other reasonable hypotheses consistent with Mills’s innocence as to how the incident that night occurred. For example, a reasonable hypothesis consistent with innocence is that prior to the police officers’s arrival at the home, Tidwell had first attacked Mills. Tidwell and Mills struggled, but when Tidwell refused to release Mills from his grasp, Mills bit and scratched Tidwell to secure her release. After she secured her release, Tidwell then hit her in the mouth, causing her mouth to bleed and her tooth to break. It was at that moment the officers walked in finding Mills angry and combative. We conclude the City failed to carry its burden; thus, we must reverse and render.

II. Motion for a New Trial

¶ 12. Mills also challenged the weight of the evidence when she filed a motion for a new trial. The Mississippi Supreme Court has held that “[w]hen reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, 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). The evidence should be viewed in the light most favorable to the verdict. Id. The resolution of Mills’s prior issue renders this issue moot.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF YALOBUSHA COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MYERS AND BARNES, JJ. RUSSELL, J„ NOT PARTICIPATING.

CARLTON, J.,

dissenting:

¶ 14. I respectfully dissent from the majority and would affirm the conviction in this case.

¶ 15. In Martin v. State, 43 So.3d 504, 507 (¶ 14) (Miss.Ct.App.2010) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)), this Court recognized that 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 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.’ ” We further noted that “[t]his inquiry does not require us 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)). This Court considers “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond_ a reasonable doubt.” Id.

¶ 16. In applying the standard acknowledged above in Martin, to determine the sufficiency of the evidence to sustain the conviction in this case, I find the record reflects sufficient evidence to support her conviction, including the pictures of Timothy Tidwell’s injuries entered into evidence and the testimony of both responding officers. Officers Christopher Blair and Steven Story testified that upon their arrival at the scene, they observed Debbie Mills’s grandson restraining her. Officer Blair testified that Mills cursed and screamed for the officers to leave her house and stated that she wanted to kill Tidwell, her boyfriend. Officer Blair also testified that he observed that Tidwell’s shirt was torn, and his injuries included bite marks on his chest and on his back. He also testified that he saw bruises on Tidwell’s back. The display of the defensive nature of Tidwell’s wounds, particularly the bite mark on his back, provided probative evidence from which the responding officers, and the trial court, could infer that Mills had acted as the principal aggressor in domestically assaulting and wounding Tid-well. Miss.Code Ann. § 99-3-7 (Supp.2010) (defining principal aggressor).

¶ 17. Mississippi Code Annotated section 99-3-7(3)(a) sets forth Mississippi’s principal-aggressor law applicable to misdemeanor domestic-violence cases. A victim’s cooperation is not required to proceed with a complaint, or charge of domestic violence. Id. The statute mandates that “any law enforcement officer shall arrest a person ... when he has probable cause to believe that the person has ... knowingly committed” an act of misdemeanor domestic violence within the past twenty-four hours. Id. Section 99 — 3—7(3)(b) provides that if an officer has probable cause to believe that two or more persons committed a misdemeanor act constituting domestic violence then “the officer shall attempt to determine who was the principal aggressor.” The statute defines principal aggressor as “the party who poses the most serious ongoing threat, or who is the most significant rather than first aggressor.” Id. The statute further provides that “the officer shall presume that arrest is not the appropriate response for the person or persons who were not the principal aggressor. If the officer affirmatively finds more than one (1) principal aggressor was involved, the officer shall document those findings.” Section 99-3-7(6) clari-fíes that the victim’s cooperation is not required to file a complaint for domestic violence — “[a]ny officer investigating a complaint of a misdemeanor crime of domestic violence who finds probable cause that such an offense occurred within the past twenty-four (24) hours shall file an affidavit on behalf of the victim(s) of the crime[.]” See Miss. Att’y Gen. Op., 2002 WL 31169195, 2002-0421, Hunter (Feb. 8, 2002) (Principal aggressor does not mean first aggressor but rather the one most responsible for the aggression or substantially significant use or escalation of aggression.). See also 4 Ency. of Miss. Law § 30:18 (2001) (Jeffrey Jackson and Mary Miller eds.) (principal-aggressor law discussed).

¶ 18. I respectfully submit that the evidence, and the logical inferences drawn therefrom, in this case are sufficient to sustain the Mills’s conviction for simple assault, charged pursuant to section 97-3-7, based upon the arresting officers’ sworn testimonies as to their observations of Tid-well’s injuries, including the bite marks; the officers’ observations of Mills’s combative emotional state and threats against Tidwell, including her threats to kill him; and the actual evidence of the photographs of Tidwell’s injuries. Based thereon, I would affirm Mills’s conviction by the circuit court of simple assault domestic violence for causing physical bodily injury to Tidwell by biting him and striking him with a closed fist. See Martin, 43 So.3d at 508 (¶ 18) (evidence sufficient to establish defendant did not act in self-defense); Ward v. State, 935 So.2d 1047, 1055-56 (¶¶ 21-24) (Miss.Ct.App.2005) (case indicative of probative value of circumstantial defensive wounds). See Camper v. State, 24 So.3d 1072, 1077 (¶¶ 22-23) (Miss.Ct.App.2010) (While the defendant and the State presented conflicting testimony in defendant’s aggravated-assault trial, the verdict was not against the overwhelming weight of the evidence where the State’s proof met the elements of aggravated assault because the jury was the sole judge of the witnesses’ credibility); Walters v. State, 932 So.2d 860, 863 (¶ 11) (Miss.Ct.App.2006) (recognizing that fact-finder can infer the purposeful or knowing intent to injure another in determining sufficiency of guilty verdict); Vaughn v. State, 926 So.2d 269, 272 (¶ 8) (Miss.Ct.App.2006) (Defendant’s argument that the evidence was insufficient lacked merit where the State presented credible evidence that the defendant had stabbed victim with a knife, even if victim had struck defendant prior to the stabbing, since jury could have found that the defendant was not in imminent danger and used more force than necessary to repel the victim’s assault.); Dunn v. State, 891 So.2d 822, 825-26 (¶¶ 21-23) (Miss.2005) (finding no error in the court’s denial of a defendant’s motion for a judgment notwithstanding the verdict because the State provided the elements of aggravated assault charged). Therefore, I must dissent, and I would affirm the conviction and sentence in this case.

MYERS AND BARNES, JJ., JOIN THIS OPINION.


author: ROBERTS, J.,

text:
    Jonathan ROBINSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00443-COA.
    Court of Appeals of Mississippi.
    June 28, 2011.

      Stan Perkins, Greenville, attorney for appellant.
    Office of the Attorney General, by W. Glenn Watts, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Jonathan Robinson was convicted in absentia by a Washington County Circuit Court jury of felony third-offense domestic violence. He was sentenced by the circuit court to ten years in the custody of the Mississippi Department of Corrections (MDOC) and ordered to pay court costs and fees totaling $925. Robinson appeals arguing that his conviction and sentence were improper because he was denied his constitutional right to confront his accusers and be present at his sentencing. There being a clear showing in the record that Robinson voluntarily waived his presence at trial by willfully failing to attend, we affirm both his conviction and sentence.

FACTS

¶ 2. Robinson was indicted by a Washington County grand jury in September 2009, for felony domestic violence of Amber Collins, his estranged girlfriend and the mother of his child. Having been twice convicted of misdemeanor domestic assault within five years prior to his indictment, Robinson’s latest domestic-violence charge constituted a felony offense under Mississippi Code Annotated section 97-3-7(3) (Supp.2010), a conviction of which carries with it a sentence of imprisonment of not less than five years nor more than ten years.

¶ 3. When the matter came to trial on February 12, 2010, Robinson was not present. Robinson’s trial attorney, Stephen Nick, brought Robinson’s absence to the circuit judge’s attention during a pretrial conference held in the judge’s chambers shortly before voir dire examination was set to begin.

¶ 4. Nick told the circuit court he had contacted Robinson earlier in the week and informed him that the court had issued a bench warrant for his arrest on February 10, 2010, pursuant to an order issued by the court on December 4, 2009, revoking Robinson’s bond. The record reflects that Robinson had other felony chai'ges pending in Washington County, which included murder, smuggling contraband into the Greenville’s City Jail, and possession of a stolen firearm. Nick said when he spoke to Robinson, he asked Robinson “if he wanted to turn himself in to the jail,” and Robinson responded: “No, they can pick me up.” Nick then asked the court for a continuance.

¶ 5. District Attorney Willie Richardson weighed in and asserted to the circuit court that Robinson knew his trial was set to begin on February 12, as the following colloquy reflects:

Richardson: [Nick] asked us for an alternative plea offer for [Robinson]. We gave [Nick] one, and it’s my understanding that [Nick] spoke with [Robinson] even last night. At that point, [Nick] conveyed the alternative plea offer, and [Robinson] denied that. So even at that point last night, as well as this morning, [Robinson] knew to be here this morning.
Nick: Yes, sir, [Robinson] knew last night. He knew this morning. I think he knew when the deputy called him.
THE COURT: And for the record, you talked to [Robinson] from this courtroom this morning?
Nick: The deputy made a phone call to [Robinson’s] cell number that I provided, and I spoke to him, and he said he was coming.
THE COURT: All right.
Nick: Then the phone went dead.
THE COURT: All right.

¶ 6. Afterwards, the circuit court sent sheriffs deputies to find Robinson. They looked for him, to no avail, at his mother’s home, his girlfriend’s home, and his place of employment. The deputies informed Robinson’s mother and his girlfriend, having been instructed by the circuit court to do so, that Robinson could not prevent his trial by deliberately absenting himself from the proceedings.

¶ 7. Hearing no word from Robinson, the circuit judge proceeded with Robinson’s trial. A jury was impaneled, and the State presented testimonial evidence from Collins and Officer Rosetta Williams, a domestic-violence coordinator with the Greenville Police Department who had investigated Collins’s claim that Robinson had assaulted her on December 26, 2008.

¶ 8. Collins testified that on December 26, Robinson called her wanting to see their one-month-old baby daughter. Collins took the baby over to Robinson’s mother’s house, where Robinson was staying, and left the baby in Robinson’s care. A few hours later, Robinson called Collins and told her to come get the baby. When Collins arrived back at the Robinson’s mother’s house, she saw Luereatha Edwards’s car parked in the driveway. Collins told the jury that Edwards is the mother of Robinson’s two older children. Collins said that she and Edwards have had altercations in the past and did not get along. According to Collins, she and Robinson had an understanding that Edwards was not to be around her baby. Collins stated that when she walked inside Robinson’s mother’s house, she retrieved her baby who was lying in the baby’s car seat and reminded Robinson about their agreement. Collins said Robinson got upset, told her to leave, and then forcibly escorted her out of the house. Collins said when they got to the doorway, Robinson pushed her outside of the house, which caused her to drop the baby, who was still lying in her car seat. Collins stated that Robinson then started hitting her. Collins said after she saw that her baby was all right, she began fighting back. The fight eventually was broken up by Edwards, who came outside and pulled Robinson back inside the house. Collins left at that point and called the police.

¶ 9. Officer Williams testified that during her investigation of the matter, she observed injuries to Collins’s forehead. Officer Williams said she later learned that Robinson had two prior misdemeanor convictions for domestic assault. She said Robinson was arrested for the subject offense on April 1, 2009.

¶ 10. The jury also heard from Gwanda Súber, the municipal court clerk/administrator for the Greenville Municipal Court. Súber authenticated the records introduced by the State as evidence that Robinson had twice been convicted of misdemeanor domestic assault within five years of the latest charge.

¶ 11. Nick presented no witnesses following the State’s case-in-chief and rested Robinson’s defense. Both sides then presented their closing arguments. Thereafter, the jury was instructed by the court; it then deliberated and returned a guilty verdict on Robinson’s charge of third-offense domestic violence.

¶ 12. Immediately following the jury’s verdict, the circuit court issued its sentence, stating for the record the following:

All right. As I have said before, [Robinson] has voluntarily chosen to be absent from the these proceedings today. He was advised, and we don’t need to go back over all of that again.
Initially, I thought since there was a bench warrant out for him to wait until he appears and sentence [sic], but the bench warrant being out does not necessarily mean we’re going to locate him or have him here at any time soon. So I’m going to go ahead and sentence him today.
Under [section 97-3-7(3) ], the maximum is ten years, the minimum is five [years]. The [c]ourt sentences [Robinson] to ten years in the custody of the [MDOC].
As an aggravating circumstance, the [c]ourt considers the fact that he was not present for the trial today, even though he had ample notice to be here, even this morning. He [spoke] with his attorney by telephone and did not appear for the trial of this matter.

¶ 13. Robinson’s trial counsel timely filed a motion requesting a judgment notwithstanding the verdict or, in the alternative, a new trial. The motion was denied.

¶ 14. According to the record, Robinson surrendered himself over to authorities on March 23, 2010. This appeal followed.

STANDARD OF REVIEW

¶ 15. The issue of whether the circuit court erred in trying and sentencing a criminal defendant in absentia is a question of law, which this Court reviews de novo. Williams v. State, 881 So.2d 963, 965 (¶ 16) (Miss.Ct.App.2004) (citing Jefferson v. State, 807 So.2d 1222, 1224 (¶ 6) (Miss.2002)).

ISSUE AND ANALYSIS

¶ 16. Represented by new counsel on appeal, Robinson argues that Mississippi jurisprudence has, traditionally and strictly, distinguished between misdemeanor trials conducted in a defendant’s absence and felony trials so conducted, due to the liberty stakes at interest in the latter. Robinson contends that: the circuit judge “ran a train over an absent defendant and his reluctant counsel,” who Robinson contends “was not anticipating going to trial.” Robinson submits that even if the circuit court had the statutory authority to try him in absentia, “the better discretion would have been to have him picked up and tried at a later date.” Robinson further submits that the circuit judge “compounded her indiscretion” by immediately sentencing him “to the maximum even though medical attention was not even required for the alleged victim.” Relying on the holding of Sandoval v. State, 631 So.2d 159 (Miss.1994), Robinson seeks reversal of his conviction for a new trial or, in the alternative, reversal for re-sentencing.

¶ 17. We decline to reverse. As this Court pointed out in Sessom v. State, 942 So.2d 234, 237 (¶ 11) (Miss.Ct.App.2006), Sandoval was effectively overruled, “as it relates to trial of a felony offender in his absence[,]” when the Legislature amended Mississippi Code Annotated section 99-17-9 on July 1, 2005. The language, “in cases less than felony,” was omitted from the section, which now provides that:

In criminal cases the presence of the prisoner may be waived (a) if the defendant is in custody and consenting thereto, or (b) is on recognizance or bail, has been arrested and escaped, or has been notified in writing by the proper officer of the pendency of the indictment against him, and resisted or fled, or refused to be taken, or is in any way in default for nonappearance, the trial may progress at the discretion of the court, and judgment made final and sentence awarded as though such defendant were personally present in court.

Miss.Code Ann. § 99-17-9 (Rev.2007).

¶ 18. Recently, in Blanchard v. State, 55 So.3d 1074 (Miss.2011), the Mississippi Supreme Court applied this version of section 99-17-9 to facts not unlike those presented here. There, Montae Blanchard, who was charged with armed robbery, was a no show when his jury trial began. Blanchard, 55 So.3d at 1077 (¶ 11). No mention was made of Blanchard’s absence until after the State’s first witness had testified. Id. At that point, a recess was taken and Blanchard’s attorney told the circuit court that Blanchard was aware of the date and time of his trial; his attorney added that when she talked to Blanchard the night before trial, he said he would be present at trial. Id. at (¶ 15). Blanchard’s trial proceeded to its conclusion, with no objection from Blanchard’s attorney, nor any request for a continuance. Id. The jury found Blanchard guilty of armed robbery. Id. at (¶ 13). The circuit court conducted a sentencing hearing the following day, with Blanchard again absent, and thereafter sentenced Blanchard to fifty years’ imprisonment. Id.

¶ 19. The supreme court reiterated that “[a]n accused’s right to be present at every stage of his trial is guaranteed by the Sixth Amendment to the United States Constitution and Article 3, Section 26, of the Mississippi Constitution.” Id. at 1077-78 (¶ 17) (citations omitted). The court stated, however, that “[tjhis right may be waived based on a defendant’s ‘willful, voluntary, and deliberate absence from trial.’ ” Id. at 1078 (quoting Jay v. State, 25 So.3d 257, 264 (¶ 38) (Miss.2010)). Pointing to section 99-17-9, the supreme court found no plain error with the trial court’s decision to conduct Blanchard’s trial in absentia, and the court affirmed both Blanchard’s conviction and his sentence. Id. at 1078 (¶¶ 17-19).

¶ 20. We point out that Blanchard is somewhat distinguishable from the case before us in that Robinson’s trial counsel, unlike Blanchard’s trial counsel, sought a continuance. This, however, is a procedural distinction without a difference in this instance, as Robinson’s counsel’s reason for seeking a continuance was predicated solely on the fact that his client was not present.

¶ 21. The circuit court denied counsel’s request and attempted to compel Robinson’s presence via the above-mentioned measures. When that failed, the circuit judge proceeded with Robinson’s trial based upon the express findings that Robinson was “clearly aware of the date and time of his trial” and that Robinson’s absence from trial was “willful, voluntary, and deliberate.”

¶ 22. The record sufficiently supports the circuit court’s findings. Thus, we find no error with the circuit judge’s decision to conduct Robinson’s trial in absentia. We also find no error with the circuit judge’s decision to sentence Robinson in absentia. As with the trial itself, a convicted defendant’s presence at sentencing may likewise be waived. Miss.Code Ann. § 99-17-9. Accordingly, this issue is without merit, and we affirm Robinson’s conviction and sentence.

¶ 23. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF THIRD-OFFENSE DOMESTIC VIOLENCE AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY $300 IN ATTORNEY’S FEES AND A $300 BOND FEE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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


author: PER CURIAM. MURDOCK, Justice

text:
    REDTOP MARKET, INC., and River Road Auto Repair, by and through its owner, Rickey BOLTON v. STATE of Alabama ex rel. Arthur GREEN, District Attorney for the Bessemer Division of the Tenth Judicial Circuit of Alabama.
    1060855.
    Supreme Court of Alabama.
    Dec. 30, 2010.
    Jon B. Terry of Bains & Terry, Bessemer, for appellants.
    Troy King, atty. gen., and Marc A. Star-rett, asst. atty. gen., for appellee.
   PER CURIAM.

Redtop Market, Inc., and River Road Auto Repair, by and through its owner, Rickey Bolton (hereinafter collectively referred to as “Redtop”), appeal from the trial court’s order granting the State of Alabama on the relation of Arthur Green, district attorney for the Bessemer Division of the Tenth Judicial Circuit of Alabama, relief under Rule 60(b)(6), Ala. R. Civ. P. We vacate the order, dismiss the action, and dismiss the appeal.

Facts and Procedural History

On July 1, 2003, Redtop filed a complaint seeking a judgment declaring that certain gaming machines Redtop wished to operate in its place of business were “bona fide coin-operated amusement machines” under § 13A-12-76, Ala.Code 1975. According to the complaint, Green had refused to approve the gaming machines for use as amusement machines and had taken the position that the operation of the machines would violate §§ 13A-12-20 through 13A-12-76, Ala.Code 1975. The complaint alleged that “the machines in question are primarily games of skill and not chance and therefore, should be allowed to be operated.”

After conducting a hearing, the trial court on February 3, 2004, entered an order holding that the gaming machines were bona fide coin-operated amusement machines under § 13A-12-76, Ala.Code 1975. The trial court’s order stated that “any and all law enforcement agencies, including the Jefferson County Sheriffs Department and all local municipal law enforcement authorities, [shall] abstain from seizing or charging criminally any individuals operating or possessing [the gaming machines] in Jefferson County.”

On February 27, 2004, the State filed a motion for a new trial or a rehearing. After conducting a hearing, the trial court denied the motion for a new trial on July 1, 2005. On August 11, 2005, the State filed a notice of appeal to this Court. In State v. Redtop Market, Inc., 937 So.2d 1013 (Ala.2006), this Court held that the State’s motion for a new trial had been denied by operation of law on May 27, 2004; thus, the State’s appeal was untimely. Therefore, this Court dismissed the appeal.

On January 18, 2007, the State filed a motion under Rule 60(b)(6), Ala. R. Civ. P., seeking relief from the trial court’s February 3, 2004, order. The Rule 60(b)(6) motion alleged that this Court in Barber v. Jefferson County Racing Ass’n, 960 So.2d 599 (Ala.2006), examined gaming machines that were essentially identical to the gaming machines at issue in the present case and held that such gaming machines are illegal gambling devices. The State asked the trial court to find that the gaming machines at issue in the present case are illegal gambling devices and to lift its injunction preventing law-enforcement agencies from seizing the machines or from criminally charging individuals found to be operating or possessing the machines in Jefferson County. On January 26, 2007, the trial court granted the State’s motion and lifted the injunction.

On February 23, 2007, Redtop filed a motion to set aside the January 26, 2007, order or to stay that order pending appeal. The trial court denied that motion on February 26, 2007. On March 7, 2007, Redtop filed a notice of appeal to this Court.

Discussion

After the appeal in this case was taken, this Court released its opinion in Tyson v. Macon County Greyhound Park, Inc., 43 So.3d 587 (Ala.2010), which held that the Macon Circuit Court lacked subject-matter jurisdiction to interfere in the enforcement of criminal laws through the issuance of an injunction in a civil action. That holding is dispositive in the present case.

In Tyson, Macon County Greyhound Park, Inc., d/b/a VictoryLand (“Victory-Land”), filed an action in the Macon Circuit Court against John M. Tyson, Jr., individually and in his official capacity as special prosecutor and task-force commander of the Governor’s Task Force on Illegal Gambling, seeking injunctive and declaratory relief stemming from Tyson’s arrival at the premises of VictoryLand for the purpose of seizing machines that, Tyson said, were illegal gambling devices. In its complaint, VictoryLand asserted that its activities were lawful and that it would suffer irreparable injury if the machines were seized. The circuit court entered a written order barring Tyson from taking further action pending a hearing to be held a few days later. Tyson filed an emergency motion in this Court to stay or to vacate the circuit court’s order.

This Court held that “[t]he general rule is that a court may not interfere with the enforcement of criminal laws through a civil action; instead, the party aggrieved by such enforcement shall make his ease in the prosecution of the criminal action.” Tyson, 43 So.3d at 589. We also noted that “[t]his Court has recognized an exception to the general rule whereby the equitable powers of the court can be invoked to avoid irreparable injury when the plaintiff contends that the statute at issue is void,” 43 So.3d at 589, but we held that “[t]he complaint in this action does not present a situation in which the plaintiff acknowledges that his conduct is prohibited by a statute and then challenges the enforceability of the statute.” 43 So.3d at 590. Therefore, based on those propositions, we held that the circuit court lacked subject-matter jurisdiction, and we vacated the order before us, dismissed the action, and dismissed the appeal.

As did the plaintiffs in Tyson, Redtop sought a judgment declaring the operation of the gaming machines to be legal, and, like the trial court in Tyson, the trial court in this case, in its February 3, 2004, order, enjoined all law-enforcement agencies “from seizing or charging criminally any individuals operating or possessing [the gaming machines] in Jefferson County.” Such a declaration would impermissibly interfere with the enforcement of criminal laws through a civil action. Also, no exception to the general rule applies in the present case because Redtop does not challenge the enforceability of any statute. Instead, Redtop alleges that the gaming machines are legal because, it says, the machines meet the definition of a “bona fide coin-operated amusement machines” under § 13A-12-76, Ala.Code 1975. Therefore, like the circuit court in Tyson, the circuit court in the present case lacked subject-matter jurisdiction over the action, and all orders entered by the trial court in this case are void.

Conclusion

Based on the foregoing, we vacate the order before us, dismiss the action, and dismiss the appeal.

ORDER VACATED; ACTION DISMISSED; APPEAL DISMISSED.

LYONS, WOODALL, STUART, SMITH, BOLIN, and SHAW, JJ., concur.

MURDOCK, J., concurs specially.

COBB, C. J., concurs in the result.

MURDOCK, Justice

(concurring specially).

In Tyson v. Macon County Greyhound Park, Inc., 43 So.3d 587 (Ala.2010), this Court held that a circuit court exercising its civil jurisdiction did not have subject-matter jurisdiction over an action seeking to restrain the enforcement of this State’s criminal laws. Among other things, this Court supported its holding with the following observations:

“The general rule is that a court may not interfere with the enforcement of criminal laws through a civil action; instead, the party aggrieved by such enforcement shall make his case in the prosecution of the criminal action:
“ ‘It is a plain proposition of law that equity will not exert its powers merely to enjoin criminal or quasi criminal prosecutions, “though the consequences to the complainant of allowing the prosecutions to proceed may be ever so grievous and irreparable.” Brown v. Birmingham, 140 Ala. [590,] 600, 37 South. [173,] 174 [(1904)]. “His remedy at law is plain, adequate, and complete by way of establishing and having his innocence adjudged in the criminal court.” Id.’
“Board of Comm’rs of Mobile v. Orr, 181 Ala. 308, 318, 61 So. 920, 923 (1913). See also 22A Am.Jur.2d Declaratory Judgments § 57 (2003) (‘A declaratory judgment will generally not be granted where its only effect would be to decide matters which properly should be decided in a criminal action.’).”

Tyson, 43 So.3d at 589.

The present case well demonstrates the wisdom of the above-quoted general principles and the harmony of those principles with the doctrine of the separation of powers as provided in § 43 of the Alabama Constitution. If we limit “matters which properly should be decided in a criminal action” to criminal actions, a mistake in favor of a criminal actor serves only to immunize from further law-enforcement efforts the specific past acts alleged in the indictment or information. On the other hand, if such a mistake is made in a civil case like the present one, the result could be injunctive or other relief that could tie the hands of law enforcement in the future so as, in effect, to immunize from further law-enforcement efforts all future acts of the same nature by the prevailing party and possibly other similarly situated actors in the county in which the decision is rendered. In practical effect, the result would be a change by civil judicial decree for that county of what has been prescribed by the legislature as the uniform statutory criminal law for the entire state. The judiciary would, in one fell swoop, be able to interfere with both the legislative and executive branches, contrary to § 43 of the Alabama Constitution.

Alabama’s constitution prescribes to the legislative branch of our State government the task of promulgating criminal laws for the sake of the public’s safety, health, and welfare. It prescribes to the executive branch of State government the task of enforcing criminal laws to the same end. It is essential to the integrity of the delegation of these respective tasks to these particular branches and to the realization of these purposes in a uniform manner throughout the various counties to adhere to the notion that an order from the judicial branch of the nature at issue in this case is subject to future, collateral attack as beyond the jurisdiction of the civil court that entered it. Maintaining this integrity and meeting these purposes dictate that the potential prospective, binding effect of the order of a single court not be dependent upon the immediate stance taken by, or the skill or diligence of, a local official in relation to the trying of a single civil action, the preserving of error in that action, or the pursuing of a timely and effective appeal from any adverse judgment.

Related to the foregoing, I note that our opinion in Tyson stated that this Court has recognized an exception to the general rule whereby the equitable powers of the court can be invoked to avoid irreparable injury when the plaintiff concedes that his or her conduct falls within a criminal statute but contends that the statute itself is void. 43 So.3d at 589. Because this exception is again referenced in the opinion in this case, I find it appropriate to make note here of questions regarding the correctness of this exception that have arisen for me since Tyson was decided.

Most fundamentally, it appears to me that the above-described principles and purposes could be defeated as effectively by a civil action that adjudicates a criminal statute or ordinance to be void as by a civil action that successfully seeks on some other ground to prevent particular conduct from being prosecuted under that criminal statute or ordinance in the future. I question whether any exception that allows such a result could be correct since it is those principles and purposes that inform the general rule.

Although there are indeed numerous cases that articulate an exception to the general rule for civil actions seeking an adjudication that an enactment is void (which I understand to be a reference to facial voidness), it may be observed that such cases, particularly early ones, usually involved the validity of local ordinances, rather than State criminal statutes. See, e.g., Board of Comm’rs of Mobile v. Orr, 181 Ala. 308, 318, 61 So. 920, 923 (1913) (noting the “plain proposition of law that equity will not exert its powers merely to enjoin criminal or quasi criminal prosecutions,” but subsequently observing that the Court had recognized “the power ... of the equity courts to interfere by injunction where quasi criminal prosecutions wider municipal ordinances will destroy or impair property rights” and citing a series of cases involving alleged violations of municipal ordinances (emphasis added)); Franklin Soc. Club v. Town of Phil Campbell, 204 Ala. 259, 85 So. 527 (1920); Walker v. City of Birmingham, 216 Ala. 206, 112 So. 823 (1927). Such cases arguably do not implicate the above-described concerns as to the separation and independence of the legislative and executive branches of State government, nor the need for statewide uniformity in the application of State criminal statutes, in the same manner as do cases seeking to adjudicate the viability of a criminal statute enacted by the legislative branch of State government for enforcement throughout the State.

Assuming that an exception of the nature expressed in Tyson is available, however, I also have come to question whether we as a Court failed in Tyson to observe adequately that the risk of irreparable injury that must be shown must be to property and enterprises other than those that are the subject of the enforcement action itself. By extension, it may be questioned whether in a circumstance where there is a commingling of both allegedly illegal enterprises with legal enterprises the complainant has not voluntarily undertaken a risk for which a court exercising civil jurisdiction may not provide relief.

While I therefore question whether this Court’s articulation of an exception in Tyson was correct, it is not necessary to answer this “question” in order to decide the case before us. I agree with the main opinion that the exception articulated in Tyson is not applicable here, and I therefore concur in that opinion.

      . See generally City Council of Montgomery v. West, 146 Ala. 680, 40 So. 215, 215 (1906) (not reported in Alabama Reports) (holding that a court exercising civil jurisdiction is "without power to enjoin the commission of threatened crimes, or to restrain threatened prosecutions for the commission of alleged crimes,” even when "the ordinance or statute for the alleged violation of which the prosecution is threatened, is absolutely void” and averment is made that there "would be repeated and numerous prosecutions” that would “inflict irreparable injury” but making no reference to any exception to this general rule). Similarly, if an ordinance purports to declare legal certain activity that would otherwise run afoul of a State criminal statute, I question whether there is any difference in adjudicating in a civil action for prospective effect the validity of that ordinance and a similar adjudication of the legality of the activity at issue in the absence of an ordinance that purports to legalize it.

      . Compare, e.g., Bessemer v. Bessemer Water Works, 152 Ala. 391, 44 So. 663 (1907) (involving local ordinances imposing restrictions on businesses and property that in all other respects were “perfectly legitimate and highly useful”); Brown v. Birmingham, 140 Ala. 590, 37 So. 173 (1904); Old Dominion Tel. Co. v. Powers, 140 Ala. 220, 37 So. 195 (1904); Bryan v. City of Birmingham, 154 Ala. 447, 450, 45 So. 922, 923 (1908) (addressing on its merits the trial court’s denial of equitable relief in a case where the “threatened enforcement of the ordinance would not only greatly diminish the value of the property, but will practically destroy its value, by forbidding the use to which it is better or exclusively adaptable,” in this case a cemetery); Town of Cuba v. Mississippi Oil Co., 150 Ala. 259, 43 So. 706 (1907); Port of Mobile v. L. & N.R.R., 84 Ala. 115, 4 So. 106 (1888); Montgomery v. L. & N.R.R., 84 Ala. 127, 4 So. 626 (1888), with Ex parte State ex rel. Martin, 200 Ala. 15, 16, 75 So. 327, 328 (1917) ("The property right sought to be asserted ... does not ... bring [the plaintiff's] cause within the exception ... recognized in the cases noted in Board of Com'rs of Mobile v. Orr, 181 Ala. 308, 61 So. 920 [ (1913) ]. The fact, if so, that complainant has brought into the state or has in his possession a beverage that, though in fact not prohibited, will subject or has subjected him to arrest and his beverage to seizure, cannot avail to invest the court of equity with jurisdiction in the premises. The issue, whether the beverage is within the prohibitory laws, can be fully determined by the court in which the prosecution and the proceedings on seizure are heard.”); Caudle v. Cotton, 234 Ala. 126, 127, 173 So. 847, 848 (1937) (dissolving an injunction against law enforcement's seizure of gambling devices and noting that "[p]erhaps the case of Ex parte State, 200 Ala. 15, 75 So. 327 [(1917)], furnishes an illustration more nearly in point to the instant case” than others); Kennedy v. Shamblin, 234 Ala. 230, 231, 174 So. 773, 774 (1937) (affirming the trial court's denial of equitable relief where “the only property rights involved are such as the complainant has in said slot machines, in which he has invested his money and the profits which said machines are taking”). See also Dickey v. Signal Peak Enters., 340 Ark. 276, 280, 9 S.W.3d 517, 519 (2000) (holding that a threatened prosecution did not fall within the exception to the general rule preventing a chancery court from restraining prosecutorial efforts because the threatened prosecution “was aimed exclusively at illegal gambling operations, not lawful business operations”); Billy/Dot, Inc. v. Fields, 322 Ark. 272, 908 S.W.2d 335 (1995).