author: BARNES, J., IRVING, P.J.,

text:
    Robert Lee BUCHANAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KM-00695-COA.
    Court of Appeals of Mississippi.
    Sept. 20, 2011.
    Rehearing Denied Dec. 13, 2011.
    Certiorari Denied March 29, 2012.

      William Wendell Martin, Warren Leon Conway, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   BARNES, J.,

for the Court:

¶ 1. Robert Buchanan was indicted for aggravated assault on a peace officer. A jury in the Harrison County Circuit Court found him guilty of misdemeanor simple assault. Buchanan now appeals, contending that the trial court erred in granting a lesser-included-offense jury instruction on misdemeanor simple assault. Finding no error, we affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. On the night of July 5, 2007, Gulf-port police officers Paul Podlin, Jason Brandt, and Joey West were transporting two prisoners in an unmarked vehicle from the Gulfport police station to the Harrison County Jail. While traveling on Highway 49, the officers observed a man, later identified as Buchanan, standing on the edge of the curb near the intersection of Highway 49 and Middle Drive “wildly” and “aggressively” swinging a baseball bat at passing vehicles. However, Buchanan never actually struck any of the vehicles.

¶ 3. Officer Podlin pulled over to assess the situation. The officers were not in uniform; they were wearing cargo pants and polo shirts with cloth badges. While Officer Brandt stayed in the unmarked vehicle with the prisoners and notified dispatch to send a marked unit, Officers Pod-lin and West walked toward Buchanan and attempted to make conduct with him. Officer West described Buchanan as having an agitated demeanor, “as if he were looking for some sort of a fight.” Officer Podlin retrieved his taser, while Officer West provided “lethal cover” with a gun. Officer Podlin told Buchanan several times to drop the bat and step away from it, or he would tase Buchanan. While Officer Podlin was still ordering Buchanan to drop the bat, Officer Ryan Stachura arrived on the scene in a marked police vehicle. Officer Stachura also took out his taser because Buchanan appeared defiant. Buchanan finally complied and dropped the bat.

¶ 4. However, Officer Stachura testified that Buchanan did not move away from the bat more than a foot and “kept shifting his eye movements from [Officer Podlin] and [the other officers] to the bat, from the bat back up.” Officer Podlin approached to remove the bat from the area, but Buchanan again reached down for the bat. Officer Podlin then deployed his taser to subdue Buchanan, but it had little effect on him. A taser usually incapacitates a person with nonlethal force, but Buchanan was still able to “flail” his arms and did not fall to the ground. Officer Stachura said it was as if the taser were not working properly. Buchanan then appeared to break the taser leads and pull the darts out. Therefore, Officer Stachura also tased Buchanan, but Buchanan was still not subdued. Instead, Buchanan immediately pulled the taser darts out and began “very rapid movements.” Buchanan grabbed the bat and raised it high above his head, charging at Officer Podlin. When Buchanan came within a few yards of Officer Podlin, he fired his handgun at Buchanan. Officer West, believing Officer Podlin was in danger because Buchanan was “running like he was attacking” Podlin, also fired his weapon at Buchanan, striking him in the abdomen area. Buchanan then dropped the bat and fell to the ground. Medics were called to the scene, and Buchanan was taken to the hospital. Cameras attached to both Officer Podlin’s and Officer Stachura’s tasers recorded the incident, and the tapes were later entered into evidence.

¶ 5. A Harrison County grand jury indicted Buchanan for aggravated assault on a peace officer in violation of Mississippi Code Annotated section 97 — 3—7(2)(b) (Rev. 2006). At the conclusion of Buchanan’s trial, the jury was instructed on aggravated assault on a peace officer. The trial court also allowed the State to submit jury instructions on the lesser-included offenses of simple assault on a peace officer and misdemeanor simple assault, over the objection of defense counsel. The jury found Buchanan guilty of neither aggravated assault on a peace officer nor simple assault on a peace officer, but of misdemeanor simple assault. Buchanan received a six-month suspended sentence and now appeals.

ANALYSIS OF THE ISSUE

¶ 6. Buchanan raises one issue: whether the trial court erred in allowing the State to instruct the jury on the lesser-included offense of misdemeanor simple assault.

¶ 7. The State argues that this issue is procedurally barred because the defense did not contemporaneously object to jury instruction S-5A on misdemeanor simple assault. To support its contention, the State references the following dialog that occurred between the prosecution and defense counsel during the State’s submission of the jury instruction:

[THE STATE]: Your Honor, they have argued that the defendant couldn’t have possibly known that they were law enforcement officers. They spend a great deal of time upon the fact that their insignia and things of that nature, they couldn’t be readily identified as police officers, and I anticipate argument that Mr. Buchanan didn’t know he was dealing with police officers, and therefore we feel that this instruction is appropriate as well.
THE COURT: All right.
[THE DEFENSE]: Judge, they’re getting three bites at the apple. They want a lesser included. If you have to give them a lesser included, give them this one [Jury instruction S-5A on misdemeanor simple assault] and not the other one [Jury instruction S-4A on simple assault of a peace officer],

(Emphasis added.) It is well established that failure to object timely to a jury instruction at trial waives the issue on appeal. Peterson v. State, 37 So.3d 669, 675 (¶ 29) (Miss.Ct.App.2010). However, we find no merit to the State’s argument of waiver. We cannot say from this dialog at the jury-instruction conference that defense counsel was not objecting to jury instruction S-5A. The State further argues that even if we consider this a contemporaneous objection, the issue is nonetheless barred because “[a]n objection on one [specific] ground waives all other grounds,” and defense counsel’s remarks were merely an objection to the State’s receiving two lesser-included-offense jury instructions, and not specifically the instruction on simple misdemeanor assault. See Swington v. State, 742 So.2d 1106, 1110 (¶ 9) (Miss.1999). Finally, the State interprets this dialog to mean that the defense counsel actually requested that instruction S-5A be granted, and “[a] party cannot complain of a jury instruction granted at its own request.” See Bridges v. Kitchings, 820 So.2d 42, 48 (¶ 19) (Miss.Ct.App.2002). We are not convinced by any of these arguments. We now turn to the merits of the issue.

¶ 8. When a party claims that he is entitled to a lesser-included-offense instruction, the standard of review is de novo, as it is a question of law. Downs v. State, 962 So.2d 1255, 1258 (¶ 10) (Miss.2007). The law on lesser-included-offense instructions is well settled. “To warrant the lesser-included offense instruction, a defendant must point to some evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of a lesser-included offense.” Goodnite v. State, 799 So.2d 64, 69 (¶ 24) (Miss.2001) (citing Toliver v. State, 600 So.2d 186, 192 (Miss.1992)). Furthermore:

A defendant does not have the power to block lesser-included offense instructions. “[The Mississippi Supreme Court has] recognize[d] in certain cases, as a matter of trial strategy, defense counsel may wish to have the. case put to the jury on an all or nothing basis, the jury’s alternatives being to find the defendant guilty as charged in the indictment or acquitted. Our law, however, allows the prosecution to request and obtain lesser-included offense instructions, as it does the defense.” The principal requirement for allowing a lesser-included-offense instruction is that there be evidence to support it.

Hester v. State, 841 So.2d 158, 160 (¶ 3) (Miss.Ct.App.2002) (quoting Harveston v. State, 493 So.2d 365, 375 (Miss.1986)). In order to decide whether a proposed jury instruction is supported by the evidence, “we must consider all of the evidence in the light most favorable to the party requesting the instruction. That party must also be given the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Booze v. State, 964 So.2d 1218, 1221 (¶ 14) (Miss.2007) (quoting Jones v. State, 798 So.2d 1241, 1254 (¶ 40) (Miss.2001)). Moreover, a trial court “should err on the side of inclusion rather than exclusion” for proposed jury instructions. Id. The supreme court has long held that “only where the evidence could only justify a conviction of the principal charge should a lesser offense instruction be refuted.” Jones v. State, 798 So.2d 1241, 1253 (¶ 38) (Miss.2001) (quoting Taylor v. State, 577 So.2d 381, 383 (Miss.1991)). “A lesser-included offense instruction must be granted where a reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable doubt.” Id. (quoting Taylor, 577 So.2d at 383-84). Another factor “to be considered is the disparity in maximum punishments between the offenses. A great disparity is a factor in favor of giving the lesser included offense instruction.” Id.

¶ 9. Buchanan argues the trial court erroneously granted the jury instruction on misdemeanor simple assault. Buchanan also mentioned in his brief that it was error for the trial court to grant the other lesser-included jury instruction of simple assault on a peace officer. While we find no error with the grant of either instruction, we shall focus our analysis on the jury instruction for misdemeanor simple assault, as this is the issue Buchanan formally raises in his brief. That said, a comparison of the jury instructions on the three offenses (the principal offense and its two lesser-included offenses) is in order.

¶ 10. On the principal offense of aggravated assault on a peace officer, jury instruction S-1A states:

If you find from the evidence in this case beyond a reasonable doubt that:
1. On or about July 5, 2007 ...
2. the Defendant ... did unlawfully, feloniously and knowingly,
3. attempt to cause bodily injury to Paul Podlin, with a deadly weapon or other means likely to produce death or serious bodily harm, to-wit: by swinging a baseball bat, a deadly weapon, at ... Podlin,
4. and not in necessary self-defense,
5. at the time when Paul Podlin was a law enforcement officer employed by the Gulfport Police Department, and acting within the scope of his duty and office, then you shall find the defendant ... guilty of Aggravated Assault on a Peace Officer.

For the lesser-included offense of simple assault on a peace officer, the jury was instructed in S-4A that:

If you find from the evidence beyond a reasonable doubt that:
1. On or about July 5, 2007 ...
2. the Defendant ... did unlawfully, willfully and feloniously attempt by physical menace to put Paul Podlin in fear of imminent serious bodily injury, to wit: by charging at ... Podlin in a threatening manner,
8. and not in necessary self-defense
4. at a time when ... Podlin was a law enforcement officer employed by the Gulfport Police Department and acting within the scope of his duty and office, then you shall find the Defendant ... guilty of Simple Assault on a Peace Officer.

Jury instruction S-5A for the lesser-included offense at issue in this case, misdemeanor simple assault, reads:

If you find from the evidence beyond a reasonable doubt that:
1. On or about July 5, 2007 ...
2. the Defendant ... did knowingly, purposely or recklessly
3. attempt to cause bodily injury to Paul Podlin,
4. not in necessary self-defense, then you shall find the Defendant ... guilty of Misdemeanor Simple Assault.

The first difference between the elements of the principal charge of aggravated assault and the two lesser-included offenses is whether the baseball bat can only be considered a deadly weapon. The second difference between the principal charge and the jury instruction on misdemeanor simple assault is whether Podlin could be identified as a peace officer at the time of the incident. If so, then the lesser-included-offense instruction on misdemeanor simple assault was erroneously granted.

¶ 11. We find that a reasonable juror could not exclude the evidence on misdemeanor simple assault beyond a reasonable doubt. There is clearly evidence that Buchanan attempted to cause bodily injury to Officer Podlin by charging at him with the baseball bat raised over his head once he had been tased the first time, and not necessarily in self-defense.

¶ 12. Regarding whether the baseball bat can only be considered a deadly weapon, the question of whether an instrument used in an assault is a deadly weapon is a question of fact for the jury to determine. Hutchinson v. State, 594 So.2d 17, 19 (Miss.1992) (citing Jackson v. State, 594 So.2d 20, 24 (Miss.1992); Shanklin v. State, 290 So.2d 625, 627 (Miss.1974)). The jury apparently deemed that the bat was not a deadly weapon in this instance since they found Buchanan guilty of simple assault. While it is true, as the defense points out, that throughout trial the State contended the baseball bat was a deadly weapon, this fact was not stipulated to by the parties. The trial transcript indicates that the bat was never described as anything more than a “baseball bat” or a “large club,” and it appears to be made of metal as shown in the two videos’ photographic stills, which were entered into evidence. While the Mississippi Supreme Court and this Court have held that a baseball bat may be considered a deadly weapon, it is typically a question of fact for the jury. See Westbrook v. State, 29 So.3d 828, 836 (¶ 33) (Miss.Ct.App.2009) (emphasis added) (“[A] baseball bat can be deemed a deadly weapon, especially when used in the manner as it was used by [the defendant],” by striking the victim three times in the head and killing him.); Adams v. State, 726 So.2d 1275, 1278 (¶ 6) (Miss.Ct.App.1998) (citing Griffin v. State, 540 So.2d 17, 19 (Miss.1989)) (emphasis added) (“A blunt instrument such as a club may constitute a dangerous weapon, and this determination is for the jury.”)

¶ 13. Buchanan cites Hutchinson as controlling authority. In Hutchinson, the defendant was indicted for aggravated assault, having cut the victim on the finger with a fillet knife. Hutchinson, 594 So.2d at 18. The trial court denied his request for a jury instruction on the lesser-included offense of simple assault. Id. at 20. The issue on appeal was whether the defendant was entitled to the jury instruction. Id. at 18. Hutchinson reiterated that the question of whether an instrument used in an assault is a deadly weapon is a question of fact for the jury to determine. Id. at 19. Because no fair-minded and properly instructed jury could have failed to find the defendant’s knife to be a deadly weapon, the supreme court held that the evidence was sufficient to support the guilty verdict of aggravated assault, and there was no error in the trial court’s denial of the instruction on simple assault. Id. at 20.

¶ 14. Buchanan also cites Brooks v. State, 18 So.3d 859 (Miss.Ct.App.2008), rev’d on other grounds by Brooks v. State, 18 So.3d 833 (Miss.2009), in support of his argument. In Brooks, the defendant was indicted on five counts of aggravated assault on a law-enforcement officer for attempting to strike several officers with a vehicle. Id. at 862 (¶ 1). Defense counsel submitted jury instructions on the lesser-included offense of simple assault on a law-enforcement officer, as well as the lesser non-included offense of reckless driving for each count, but the trial court refused them. Id. at 865 (¶ 14). Regarding the simple-assault offense, this Court affirmed the trial court’s denial of the instruction because there was no evidence presented to support it. Id. at 867-68 (¶ 20). Additionally, during the jury-instruction conference, both parties agreed that a vehicle driven in a dangerous manner would be considered a deadly weapon. Id. at 867 (¶17).

¶ 15. Both Hutchinson and Brooks are distinguishable from this case in that there was no debate that the instruments used in those assaults — a fillet knife and a vehicle, respectively — were deadly weapons. Here, it is a question of fact whether the bat was a deadly weapon. As Hutchinson explains, “aggravated assault is a carbon copy of simple assault, with the exception that aggravated assault has added the words ‘with a deadly weapon.’ ” Hutchinson, 594 So.2d at 19. Depending on the “discrete facts presented, an accused on trial for aggravated assault may have the jury consider the lesser offense of simple assault,” but not necessarily in every case; it depends on “whether there is an evidentiary basis” for the lesser offense. Id. at 18. In Hutchinson, the supreme court held that, even though whether an instrument of attack in assault cases is a deadly weapon is usually a question for the jury, “no fair-minded and properly instructed jury could fail to find [the Defendant’s] knife was a deadly weapon.” Thus, the trial court’s refusal of the lesser-offense instruction was proper. Id. at 20. Here, a fair-minded jury could (and did) find the bat was not a deadly weapon. Similarly, in Brooks, the parties agreed the instrument, a vehicle, was a deadly weapon; thus, a jury instruction for simple assault would have been improper. Here, there was no such agreement between the parties that a baseball bat was a deadly weapon; it was a fact issue for the jury to determine, so it was proper for the jury to receive an instruction on the lesser offenses as there was an evidentiary basis for the instruction.

¶ 16. Buchanan argues that the only “important” difference between the aggravated assault instruction S-1A and instruction S-5A on lesser-included simple assault is the absence of the element “use of a deadly weapon.” We disagree. As mentioned earlier, instruction S-5A also does not require proof that Podlin was a peace officer, as does S-1A.

¶ 17. Morgan v. State, 388 So.2d 495 (Miss.1980), which is cited by the State, is instructive. In Morgan, the defendant was convicted for aggravated assault on a fireman for hitting a fireman with a pistol barrel. Id. at 496. The supreme court reversed the conviction and remanded the case because evidence at trial showed, at the time of the assault, the defendant did not recognize the fireman was acting within the course and scope of his duties. Id. at 498. The defendant, a Marine, was attempting to return to a burning building to rescue an individual, while the firemen were trying to move the crowd away from the building. Id. at 496. The record showed that the assaulted fireman had on a different type of helmet from the other firemen, and there was smoke and great confusion at the scene of the fire. Thus, the supreme court found that the defendant was only guilty of the lesser-included offense of simple assault. Id. at 498. We also note there was no discussion in Morgan about whether a pistol barrel was a deadly weapon.

¶ 18. Here, there is evidence to show Buchanan may not have realized Officer Podlin was acting within his scope and duty as a peace officer during the incident. Officers Podlin, West, and Brandt did not have on their usual police uniforms; instead, they were dressed in cargo pants and polo shirts with patches on them. Additionally, they arrived on the scene in an unmarked police vehicle. Furthermore, the jury had the choice of convicting Buchanan of either simple assault of a peace officer or merely simple assault; so apparently the jury did not think Buchanan knew Officer Podlin was a peace officer.

¶ 19. Finally, in analyzing the disparity of the maximum sentences for aggravated assault on a peace officer and misdemean- or simple assault, there is a great disparity. Aggravated assault on a peace officer carries a maximum sentence of thirty years, while the maximum sentence for misdemeanor simple assault is six months in the county jail. Miss.Code Ann. § 97-3-7(l)-(2) (Rev.2006). This factor further establishes the propriety of the lesser-included-offense instruction.

¶20. In conclusion, the evidence presented at trial was not such that only a conviction on the principal charge of aggravated assault on a peace officer could be justified. Additionally, a reasonable juror could not exclude the evidence on the lesser-included-offense instruction beyond a reasonable doubt. There was ample evidence to support this lesser-included offense. Considering the evidence in the light most favorable to the State, which submitted the lesser-included-offense instruction, and giving the State the benefit of all reasonable inferences, reasonable jurors could have found, and did find, Buchanan guilty of misdemeanor simple assault. Therefore, the trial court did not err in granting this jury instruction. Accordingly, we affirm Buchanan’s conviction and sentence.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF MISDEMEANOR SIMPLE ASSAULT AND SENTENCE OF SIX MONTHS IN THE CUSTODY OF THE SHERIFF OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., MYERS, ISHEE AND ROBERTS, JJ„ CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CARLTON AND RUSSELL, JJ.

IRVING, P.J.,

dissenting:

¶ 22. Buchanan was indicted and tried for aggravated assault on a peace officer. At the conclusion of the evidence, the trial court gave three jury instructions: one for aggravated assault on a peace officer; and two for simple assault, one for simple assault on a peace officer and one for “the lesser charge of [mjisdemeanor [sjimple [ajssault.” The victim identified in the indictment and in each instruction is Officer Podlin. It is undisputed that at the time of the alleged assault, Officer Podlin was acting in his capacity as a Gulfport, Mississippi police officer and was wearing clothing that identified him as such. Buchanan objected to the giving of any instructions on simple assault but argued that if the trial court was going to grant one, it should grant only the instruction on “misdemeanor simple assault.” The State argued that it was entitled to both simple-assault instructions. As stated, the trial court granted both instructions.

¶23. The jury found Buchanan not guilty of aggravated assault on a peace officer and not guilty of simple assault on a peace officer. However, it found him guilty of “[m]isdemeanor [simple] [assault.”

¶ 24. The majority finds no error with the trial court’s granting of the instruction on simple assault on a peace officer, along with the instruction on “misdemeanor simple assault.” I disagree; therefore, I dissent. I would reverse and render Buchanan’s conviction for “misdemeanor simple assault” for three reasons. First, he was found not guilty of simple assault on a peace officer which is the lesser-included offense of the crime of aggravated assault on a peace officer. Second, there is no evidentiary basis in the record to support the giving of the “misdemeanor simple assault” jury instruction (Instruction 5-A) which is set forth later in this opinion. Third, “misdemeanor simple assault” on Officer Podlin as a private citizen is not a lesser-included offense of the crime charged in the indictment. However, before I delve into the discussion of the propriety of the granting of both instructions, it is necessary that I relate some facts in context, as they unfolded on the night of the incident.

¶ 25. Around 11:80 p.m. on July 5, 2007, Officers Brandt, Podlin, and West of the Gulfport Police Department were transporting two prisoners to jail. They were traveling north on U.S. Highway 49 and were riding in a Chevrolet Tahoe that was marked only by blue lights on the dashboard; in other words, it did not contain the normal police light bar on the top or any insignia on the outside of the vehicle. As they approached the intersection of U.S. Highway 49 and Middle Drive, they noticed a man, later identified as Buchanan, standing on the curb of Miller Drive, allegedly swinging a bat at passing vehicles. Because the officers were transporting prisoners, police protocol requires them not to stop, but because there were three of them, they decided to do so anyway. Officer Podlin, who was driving, pulled the Tahoe to the side of the road approximately one hundred yards beyond the intersection. Before doing so, however, the officers called dispatch for backup. Officer Brandt remained at the Tahoe with the prisoners while Officers Podlin and West got out and went to investigate. As they approached Buchanan, Officer Podlin pulled out his Taser and hid it behind his right leg. Officer Stachura arrived at the scene in a marked police cruiser just as Officers Podlin and West made it to the intersection and began conversing with Buchanan. Officer Stachura exited his cruiser and pulled out his weapon as he approached Buchanan and the officers. After Officer Podlin issued several commands to Buchanan to drop the bat, he did. However, when he made a move or gesture toward the bat after having dropped it, both Officer Stachura and Officer Podlin tased him. After being tased, Buchanan picked up the bat, raised it above his head, and started to charge Officer Podlin. At that point, Officer Podlin fired two shots, striking Buchanan in the abdomen. When Officer Podlin fired his taser, Buchanan was approximately fifteen to twenty-one feet away, and when Officer Podlin fired his handgun, Buchanan was approximately nine feet away.

¶ 26. On cross-examination, Officer Podlin explained the incident as follows:

Q. Okay. And according to your testimony today, as you approached him[,] he [Buchanan] began backing up, correct?
A. He—as we approached[,] he went to his bags to pick them up.
Q. And picked them up?
A. Right.
Q. And began backing up?
A. Eventually.
Q. Okay. And you told him to drop the bat, correct?
A. Several times.
Q. Do you remember him responding, [“]why[”]?
A. [“] Why[”] or [“]what for,[”] something to that extent.
Q. Okay. You remember that response. And then according to your testimony today, now having seen the tape, you see that he did, in fact, lay the bat on the ground correct?
A. Yes.
Q. Okay. Now, you have also said that when—after he was tased by you and by [Officer] Stachura almost simultaneously that at that point he still didn’t have the bat in his hands, did he?
A. I know now that he didn’t.
Q. Okay. But you thought at the time you tased him that he did?
A. Yes, sir.
Q. And the next thing you remember after that is firing two shots, correct?
A. Yes.

¶ 27. Detective Craig Peterson, a supervisor in the investigative unit of the Gulfport Police Department, testified for the defense as follows:

Q. Okay. As the case investigator in this particular case, you did, in fact, conduct interviews of [Officer] Pod-lin, [Officer] Stachura and also [Officer] West; is that correct?
A. That’s correct.
Q. And after having reviewed the videos, you, in fact, determined that at the point that Mr. Buchanan had been tased that he did not have a bat in his hand; is that correct?
A. Pm not sure what you’re asking.
Q. Okay. You reviewed the videos in this case?
A. I did.
Q. And you also questioned the officers involved?
A. Yes, I did.
Q. When you reviewed the video did you not determine that Mr. Buchanan did not have any bat in his hand at the time he was tased?
A. That would be accurate, yes.
Q. Okay. And you also questioned the officers, correct?
A. Yes.
Q. All right. Now you questioned Officer West, correct?
A. Yes.
Q. And did Officer West give you a statement as to what occurred?
A. Yes, he did.
Q. Did his statement conflict with the tape?
A. Yes, it did.
Q. You also questioned Officer Podlin, correct?
A. Yes.
Q. Did Officer Podlin give you a statement as to what occurred?
A. Yes, he did.
Q. Did his statement conflict with the tape?
A. Yes, it did.

¶ 28. I now return to a discussion of the issue regarding the instructions that were given. The trial court gave the following jury instructions:

JURY INSTRUCTION S-1A

The Court instructs the Jury that the Defendant, ROBERT LEE BUCHANAN, has been charged in the Indictment with the crime of Aggravated Assault on a Peace Officer.
If you find from the evidence in this case beyond a reasonable doubt that:
(1) On or about July 5, 2007, in the First Judicial District of Harrison County, Mississippi;
(2) the defendant, ROBERT LEE BUCHANAN, did unlawfully, felo-niously!,] and knowingly,
(3) attempt to cause bodily injury to Paul Podlin, with a deadly weapon or other means likely to produce death or serious bodily harm, to-wit: by swinging a baseball bat, a deadly weapon, at the said Paul Podlin,
(4) and not in necessary self-defense,
(5) at the time when Paul Podlin was a law enforcement officer employed by the Gulfport Police Department, and acting within the scope of his duty and office,

then you shall find the defendant, ROBERT LEE BUCHANAN, guilty of Aggravated Assault on a Peace Officer....

JURY INSTRUCTION S-4A

The Court instructs the Jury that if you find that the State has failed to prove all of the essential elements of the crime of Aggravated Assault on a Peace Officer, you may consider the lesser charge of Simple Assault on a Peace Officer. ...

Therefore, if you find the Defendant, ROBERT LEE BUCHANAN, not guilty of Aggravated Assault on a Peace Officer, then you shall proceed with your deliberations to decide whether the State has proved beyond a reasonable doubt all of the elements of the lesser crime of Simple Assault on a Peace Officer. If you find from the evidence beyond a reasonable doubt that:

(1) On or about July 5, 2007, in the First Judicial District of Harrison County, Mississippi;
(2) The Defendant, ROBERT LEE BUCHANAN, did unlawfully, willfully!,] and feloniously attempt by physical menace to put Paul Podlin in fear of imminent serious bodily injury, to wit: by charging at the said Paul Podlin in a threatening manner,
(3) and not in necessary self-defense
(4) at a time when the said Paul Podlin was a [l]aw [e]nforcement [o]fficer employed by the Gulfport Police Department and acting within the scope of his duty and office, then you shall find the Defendant, ROBERT LEE BUCHANAN, guilty of Simple Assault on a Peace Officer. ...

JURY INSTRUCTION S-5A

The Court instructs the Jury that you find that the State has failed to prove all of the essential elements of the crime of Simple Assault on a Peace Officer, you may consider another lesser charge of Misdemeanor Simple Assault.

Therefore, if you find the Defendant, ROBERT LEE BUCHANAN, not guilty of Simple Assault on a Peace Officer, then you shall proceed with your deliberations to decide whether the State has proved beyond a reasonable doubt all of the elements of the lesser crime of Misdemeanor Simple Assault. If you find from the evidence beyond a reasonable doubt that:

(1) On or about July 5, 2007, in the First Judicial District of Harrison County, Mississippi;
(2) The Defendant, ROBERT LEE BUCHANAN, did knowingly, purposely[>] or recklessly
(3) attempt to cause bodily injury to Paul Podlin
(4) not in necessary self-defense
then you shall find the Defendant, ROBERT LEE BUCHANAN, guilty of Misdemeanor Simple Assault. ...

(Emphasis added).

¶ 29. The majority suggests that since Officers Podlin, West, and Brandt were not wearing their traditional uniforms, Buchanan might not have realized that they were law enforcement officers. While cargo pants and a polo shirt with a cloth patch is not the traditional police uniform, it is, nevertheless, a police uniform. Officer Brandt testified that the cloth patch is in all respects an official police badge. He further testified as follows:

Q. But someone that is not accustomed to seeing you in this outfit wouldn’t necessarily know that you would be a police officer; isn’t that correct?
A. They should know. I mean, it’s clearly marked that it’s a police uniform, yes, sir.
Q. Is it clear to someone that is not from Gulfport that you were police?
A. It should be, yes, sir.

I know of no authority which permits the giving of an instruction based solely on what a defendant may have thought. There is absolutely no evidence that at the time of the incident the officers were acting in any capacity other than as law enforcement officers of the City of Gulfport. Buchanan did not testify; therefore, there is no evidence in the record as to whether he thought that he was dealing with a law enforcement officer or a private citizen. However, at the time of the incident, Officer Podlin was a duly commissioned officer of the Gulfport Police Department, acting within the scope of his employment. Additionally, it would not be reasonable for Buchanan to believe that Officer Podlin, equipped with a taser and a holstered firearm, could have been acting as a private citizen. This is especially true where Officer Stachura, dressed in a regular police uniform, was providing assistance and backup to Officer Podlin. Therefore, it is clear that there is no evidentiary basis to support giving an instruction that would allow the jury to find Buchanan guilty of assaulting Officer Podlin in his capacity as a private citizen.

¶ 30. The majority states: “We find that a reasonable juror could not exclude the evidence on misdemeanor simple assault beyond a reasonable doubt.” Majority opinion at ¶ 11. I find two problems with this statement as a justification for sanctioning the giving of the two simple-assault instructions. First, the majority-fails to identify the evidence that it is referring to. Second, there is no legal difference between simple assault and “misdemeanor simple assault.” “Misdemeanor simple assault” is plain simple assault.

¶ 31. During the events that transpired in this case, Officer Podlin did not act in two capacities: as a peace officer and as a private citizen. Therefore, when the jury found Buchanan not guilty of simple assault on Officer Podlin, it necessarily found him not guilty of “misdemeanor simple assault” on Officer Podlin. It is a red herring to suggest that “misdemeanor simple assault” and simple assault are two separate and distinct lesser offenses of the crime of aggravated assault. Had Buchanan also been charged with aggravated assault on Officer Podlin without the specification that Officer Podlin was a peace officer with the assault occurring while Officer Podlin was acting in his capacity as a peace officer, it would have been proper to grant two simple assault instructions: one for simple assault on Officer Podlin as a peace officer and one for simple assault on Officer Podlin as a private citizen.

¶ 32. “A key consideration in determining whether a crime is a lesser-included offense of a superior crime is whether the indictment put the defendant on sufficient notice of the charges pending again him.” Downs v. State, 962 So.2d 1255, 1260-61 (¶ 23) (Miss.2007) (citing State v. Shaw, 880 So.2d 296, 301 (¶ 16) (Miss.2004)). Based on the language of the indictment, which charged Buchanan with aggravated assault on a peace officer, there is no way that he could have known that he was charged with simple assault on Officer Podlin in Officer Podlin’s capacity as a private citizen.

¶ 33. Simple assault may be committed in three ways: (a) by “attempting] to cause or purposely, knowingly!,] or recklessly causing bodily injury to another”; (b) by “negligently causing] bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm”; and (c) by “attempting] by physical menace to put another in fear of imminent serious bodily harm.” Miss. Code Ann. § 97-3-7 (Supp.2011). It is readily apparent that instructions 4-A and 5-A focus on a separate means of committing simple assault. By giving instruction 4-A, as well as instruction 5-A, the trial court attempted to create two separate crimes of simple assault, with one superior to the other. For sure, the punishment for simple assault on a law enforcement officer is stiffer than the punishment for simple assault on a private citizen, but there is only one crime of simple assault. Calling the crime simple assault when it is committed by attempting by physical menace to put another in fear of imminent serious bodily harm, and then calling it “misdemeanor simple assault” when it is committed by attempting to cause or purposely, knowingly, or recklessly causing bodily injury to another, is both confusing and without foundation in the law. Clearly, the jury thought it was finding Buchanan guilty of an offense less than simple assault, because it found him guilty of “misdemeanor simple assault.”

¶ 34. The majority finds that “[t]he ... difference between the elements of the principal charge of aggravated assault and the two lesser-included offenses is whether the baseball bat can only be considered a deadly weapon.” Majority opinion at ¶ 10. I fail to discern the majority’s reasoning on this point as justification for the granting of the two simple-assault instructions. In the two simple-assault instructions, the jury is not asked to consider whether the baseball bat is a deadly weapon. In instruction 4-A, the jury is asked to determine whether Buchanan attempted by physical menace to put Officer Podlin in fear of imminent serious bodily injury. In instruction 5-A, the jury is simply asked to determine if Buchanan attempted to cause bodily injury to Officer Podlin. In any event, the only evidence is that Buchanan picked up the bat and carried it above his head as he charged Officer Podlin. There is no evidence that the assault occurred any other way. Since the jury found that Buchanan did not commit either aggravated assault or simple assault on Officer Podlin as a peace officer, Buchanan’s conviction for “misdemeanor assault” should be reversed and rendered. For these reasons, I dissent.

CARLTON AND RUSSELL, JJ, JOIN THIS OPINION.

      . In his original statement, Officer Podlin stated that Buchanan never dropped the bat before he tased him. Upon watching a video of the incident, however, Officer Podlin saw that Buchanan actually did drop the bat before being tased; so Officer Podlin changed his testimony accordingly.

      . To prove the crime of aggravated assault on a peace officer, the State must prove the defendant "attempts to cause or purposely or knowingly causes bodily injury to [a peace officer] with a deadly weapon or other means likely to produce death or serious bodily harm.” Miss.Code Ann. § 97 — 3—7(2)(b).

      . For the crime of simple assault on a peace officer, the State is required to show that the defendant "attempts by physical menace to put [a peace officer] in fear of imminent serious bodily harm.” Miss.Code Ann. § 97-3-7(1 )(c) (Rev.2006).

      .To prove the crime of misdemeanor simple assault, the State must prove that the defendant "attempts to cause or purposely, knowingly or recklessly causes bodily injury to another.” Miss.Code Ann. § 97 — 3—7(1)(a) (Rev. 2006).

      . In his brief, Buchanan refers to the bat as a "Pee Wee league baseball bat”; however, there is nothing in the record to support this description, and the bat was not transferred to this Court with the record.

      .The jury returned the following verdicts:
      We, the jury, find the defendant, Robert Lee Buchanan, not guilty of aggravated assault on a peace/police officer.
      We, the jury, find the defendant, Robert Lee Buchanan, not guilty of simple assault on a peace officer.
      We, the jury, find the defendant, Robert Lee Buchanan, guilty of misdemeanor assault.

      . The indictment charged Buchanan with committing aggravated assault on "Paul Pod-lin ... when the said Paul Podlin, at the time in question, was a law enforcement officer employed by the Gulfport Police Department and acting within the scope of his duty and office....”

      . The record contains no evidence of any motorist calling the Gulfport Police Department and complaining about Buchanan's actions.

      . I note that this is an improper definition of simple assault when committed with a deadly weapon. The proper definition is "negligently causing bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.” Miss. Code Ann. § 97 — 3—7(l)(b) (Supp.2011). However, no objection to the instruction was lodged on the basis that it was an improper statement of the law.


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    Martha Kay STANFORD, Appellant v. V.F. JEANSWEAR, LP and Fidelity & Guaranty Insurance Company, Appellees.
    No. 2010-WC-01284-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2011.
    Rehearing Denied Jan. 10, 2012.
    Certiorari Denied April 5, 2012.

      William 0. Rutledge III, New Albany, Valarie B. Hancock, Tupelo, attorneys for appellant.
    M. Reed Martz, attorney for appellees.
    Before IRVING, P.J., MAXWELL and RUSSELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On January 4, 2007, Martha Kay Stanford filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission), alleging that she had sustained injuries to her head, neck, back, knees, and extremities when she tripped and fell during the course and scope of her employment with V.F. Jean-swear, LP (V.F.). A hearing was held before an administrative judge (AJ), who denied Stanford’s claim for workers’ compensation benefits. Stanford appealed the AJ’s decision to the Commission, which affirmed the AJ’s decision. Stanford appealed the Commission’s decision to the Circuit Court of Union County, and the circuit court affirmed the Commission’s decision denying benefits.

¶ 2. Feeling aggrieved, Stanford appeals and asserts three issues on appeal, which we will consolidate into two issues: (1) whether the AJ showed bias in favor of the employer/carrier and (2) whether the Commission’s denial of disability benefits was arbitrary and capricious and not supported by substantial evidence.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. Stanford sustained her injuries while driving a truck for V.F. She testified that sometime during the late evening of February 7, 2006, or early morning of February 8, she began to feel nauseous, so she pulled the truck into a scale house to rest for the evening. She parked the truck, and as she attempted to exit the driver’s seat and enter the sleeper compartment, she tripped over a cooler. Stanford fell into the sleeper compartment and hit her head on the bed rail; the fall knocked her unconscious. Stanford’s husband, William Stanford, who was riding with her, attempted to revive her. Stanford testified that after she regained consciousness, William offered to take her to the emergency room. Stanford declined and decided to stay in the sleeper compartment and rest until morning. According to Stanford, she contacted Tom Swin-ton, the head dispatcher, the following day to report her fall. Stanford testified that Swinton instructed her to call Keith Horton, the terminal manager, and report her fall. Stanford testified that she contacted Horton, and he arranged for Stanford and her husband to return home.

¶ 5. Stanford and her husband returned home on February 8, 2006, and she went to Dr. Allie Prater for an evaluation of her injuries. Dr. Prater was unable to see Stanford that day, so she returned to his office the following day. Dr. Prater’s notes reflect that Stanford’s chief complaints were blackouts, syncope, and slurred speech. Stanford told Dr. Prater that her symptoms had begun one week prior to her visit. Dr. Prater’s notes do not mention Stanford’s fall in the truck or that she was knocked unconscious; however, Stanford testified that she had told Dr. Prater about the fall. Dr. Prater diagnosed Stanford with benign essential hypertension and ordered blood tests, an ultrasound, and a brain MRI.

¶ 6. Stanford returned to Dr. Prater on March 81, 2006, complaining of neck pain. Dr. Prater reviewed Stanford’s MRI, which revealed osteophytes at C3-4, C5-6, and C6-7. Dr. Prater diagnosed Stanford with “unspecified polyarthropathy or po-lyarthritis involving multiple sites” and referred her to Dr. Glenn Crosby, a neurosurgeon.

¶ 7. Before seeing Dr. Crosby, Stanford presented to Dr. Johnny Mitias, an orthopedic surgeon, on March 15, 2006. Dr. Mitias’s notes indicate that Stanford complained of “right buttock and lateral thigh pain” and that the pain had existed for “some time” but had worsened over the last two to three months. While Dr. Miti-as’s records state that Stanford is a truck driver, there is no mention of her fall. In fact, Dr. Mitias noted that “[tjhere was no injury that started this.” Dr. Mitias diagnosed Stanford with right sciatica and ordered physical therapy.

¶ 8. Dr. Crosby evaluated Stanford on March 31, 2006. Stanford again complained of neck pain, which Dr. Crosby described in his notes as “insidious onset.” Dr. Crosby diagnosed Stanford with symptomatic cervical spondylosis with osteo-phyte complex and ordered physical therapy. The physical therapy aggravated Stanford’s symptoms, so Dr. Crosby recommended a cervical diskectomy and fusion at C3-4. Dr. Crosby performed the recommended surgeries on August 8, 2006. After surgery, Stanford began complaining of pain in her left buttock and down her left leg. Dr. Crosby ordered a lumbar MRI, which revealed a large rupture of the lumbar spine at L4. On November 28, 2006, Dr. Crosby performed a diskectomy at the L4 level.

¶ 9. Stanford returned to Dr. Crosby on January 25, 2008, again complaining of neck and lower back pain. Dr. Crosby’s notes mention that Stanford attributed her symptoms to her work as a truck driver. Additionally, Dr. Crosby’s notes indicate that Stanford “had a fall this past year” that may have aggravated her back. However, Dr. Crosby’s notes do not mention that Stanford suffered a fall at work until her follow-up visit with Dr. Crosby on May 30, 2008. Dr. Crosby testified in his deposition that prior to that visit, Stanford had not disclosed any history of an accident at work. However, he testified that the problems with her neck and back were probably related to her work injury.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 11. An appellate court’s standard of review in workers’ compensation cases “is limited to whether the [Commission’s] decision is supported by substantial evidence.” Omnova Solutions, Inc. v. Lipa, 44 So.3d 935, 940 (¶ 15) (Miss.2010) (quoting Lott v. Hudspeth Ctr., 26 So.3d 1044, 1048 (¶ 12) (Miss.2010)). “The [Commission] is the trier and finder of facts in a compensation claim, the findings of the [AJ] to the contrary notwithstanding.” Id. (quoting Lott, 26 So.3d at 1048). An appellate court “will reverse an order of the [Commission] only where such order is clearly erroneous and contrary to the overwhelming weight of the evidence.” Id. (quoting Lott, 26 So.3d at 1048). Furthermore, “[i]n applying this standard, ... the Mississippi Workers’ Compensation Law ⅛ construed liberally, and doubtful cases are to be resolved in favor of compensation so that the beneficent purposes of the act may be achieved.’ ” Id. (quoting Robinson v. Packard Elec. Div., 523 So.2d 329, 332 (Miss.1988)).

1. Bias of the AJ

¶ 12. The Mississippi Supreme Court has stated that, in the context of administrative hearings, “there is a presumption that the officers conducting the hearing ... behave honestly and fairly in the conduct of the hearings and in the decision-making process.” McFadden v. Miss. State Bd. of Med. Licensure, 735 So.2d 145, 158 (¶ 53) (Miss.1999) (quoting United Cement Co. v. Safe Air for the Env’t, Inc., 558 So.2d 840, 842 (Miss.1990)). “Absent some showing of personal or financial interest on the part of the hearing officer or evidence of misconduct on the officer’s part, this presumption is not overcome.” Id. (quoting United Cement, 558 So.2d at 842-43).

¶ 13. Stanford argues that the AJ demonstrated bias in favor of V.F. and its insurance carrier by affording greater weight to certain witnesses and evidence. Specifically, she contends that the AJ should not have accepted the testimony of Sally Jo Rupley, who was also employed by V.F. Rupley testified that she had gone on a cruise with Stanford in April 2006. Rupley stated that, during the cruise, she did not observe Stanford having trouble with her back, neck, or any other parts of her body. In fact, Rupley testified that she witnessed Stanford go horseback riding during the cruise.

¶ 14. Stanford argues that Rupley’s testimony was biased given that she was an employee of V.F. and that the AJ erred in accepting her testimony. Rupley admitted that her supervisor had requested that she appear at the hearing to testify; however, Rupley denied that anyone at V.F. had threatened or coerced her in exchange for her testimony. We fail to see how allowing Rupley to testify demonstrates bias on the part of the AJ, especially where the AJ also permitted the testimonies of Stanford’s husband, relatives, and friends.

¶ 15. Additionally, Stanford contends that the AJ placed undue emphasis on the fact that Stanford went on a cruise two months after her alleged work-related injury. V.F. introduced a video taken during the cruise into evidence that depicted Stanford riding a horse and judging a “hairy chest” contest. Again, we fail to find bias on the AJ’s part, especially where the video was just one piece of evidence considered by the AJ in rendering her decision.

¶ 16. Finally, Stanford argues that the AJ unfairly favored the medical records of Dr. Mitias, who saw Stanford only one time. The record completely belies this contention. In addition to a discussion of Dr. Mitias’s records, the AJ’s order contains a discussion of Dr. Prater’s and Dr. Crosby’s records. Both doctors served as Stanford’s treating physicians and saw Stanford on numerous occasions. Dr. Prater’s medical records contain no mention of a work-related injury, and Dr. Crosby’s records contain no mention of Stanford’s alleged injury until May 30, 2008. Based on the record, we see no evidence that the AJ unfairly favored Dr. Mitias’s records, especially where the AJ also discussed the medical records of Dr. Prater and Dr. Crosby in her order.

¶ 17. Based on our review of the record, we see no evidence of bias on the part of the AJ in rendering her decision to deny benefits. This issue is without merit.

2. Commission’s Decision

¶ 18. Stanford also argues that the Commission’s decision to deny benefits is not supported by substantial evidence and, consequently, is arbitrary and capricious. As noted above the Commission is “the ultimate fact-finder.” Adolphe Lafont USA, Inc. v. Ayers, 958 So.2d 833, 839 (¶ 16) (Miss.Ct.App.2007). Furthermore, this Court must defer to the Commission’s finding regarding witness credibility. Id.

¶ 19. In this case, the AJ determined that Stanford had not sufficiently proven that she had suffered a work-related injury, and the Commission agreed. In making her determination, the AJ considered the fact that Stanford’s medical providers made no mention of a work-related injury in their records until over two years after the alleged injury. Additionally, the AJ noted that while Stanford testified that she had informed Horton, Swinton, and Rupley of her injury, all three witnesses denied that they had ever been told about her fall. Furthermore, the AJ stated that Stanford’s testimony regarding her disability was contradicted by the video from her cruise, which depicted Stanford as “physically active and robust.”

¶ 20. This Court has previously upheld the Commission’s decision to deny benefits where the employer testified that it had never received notice of an injury and the claimant initially failed to inform his medical providers of his work-related injury. Odom v. FedEx Ground Sys., Inc., 22 So.3d 362, 365 (¶ 14) (Miss.Ct.App.2009). In Odom, Joshua Odom claimed that he had sustained a back injury while at work. Id. at 363 (¶ 2). Odom did not immediately inform his treating physicians that his injury was work related. Id. at (¶¶ 3-4). Eventually, Odom informed Dr. Michael Molleston, who performed his back surgery, that he had suffered a lifting injury at work. Id. at (¶4). Dr. Molleston opined in his deposition that Odom’s injuries were work related. Id. at (¶ 5). Odom’s manager testified in her deposition that she had never received notice of an injury and that Odom’s supervisor did not file an accident report despite a FedEx policy which required that an accident report be filed. Id. at (¶ 6).

¶21. In upholding the Commission’s decision to deny benefits, this Court noted that Odom’s “medical records were contradictory regarding whether the injury even occurred at work.” Id. at 366 (¶ 16). This Court further noted that “[w]hen a patient gives a history to a physician which is inconsistent with allegations in a workers’ compensation case, this is a significant factor in support of denial of a claim.” Id. (quoting Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 336 (¶ 16) (Miss.2003)).

¶22. In the present case, Stanford’s medical records do not contain any mention of a fall in her truck until May 30, 2008 — over two years after the injury allegedly occurred. Stanford’s medical records prior to May 30, 2008, either contain no mention of a work-related injury or expressly deny that her symptoms were caused by an injury. Furthermore, Stanford’s employer, like the employer in Odom, denied receiving notice of any work-related injury. Based on the inconsistencies and contradictions in the evidence, we cannot say that the Commission erred in finding that Stanford had failed to prove by a preponderance of the evidence that she had sustained a compensable work-related injury. This issue is without merit.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF UNION COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: MAXWELL, J., IRVING, P.J.,

text:
    Milton PILATE, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2010-CC-01325-COA.
    Court of Appeals of Mississippi.
    March 27, 2012.

      Thomas Kelvin Hudson, attorney for appellant.

      Albert B. White, Madison, attorney for appellee.
   MAXWELL, J.,

for the Court:

¶ 1. Milton Pilate appeals the Hinds County Circuit Court’s judgment, which affirmed the Mississippi Department of Employment Security (MDES) Board of Review’s denial of his request for unemployment benefits. Because substantial evidence supports the MDES Board of Review’s decision that Pilate deliberately violated company policy and was, therefore, disqualified from receiving unemployment benefits, we affirm.

FACTS

¶ 2. Pilate had been employed by TA Operating (TA) as a mechanic for approximately fifteen months before he was discharged. TA had already placed Pilate on ninety days’ probation for violating TA’s safety policies because Pilate had allowed a TA customer to use a blow torch to work on his personal vehicle in the company shop.

¶ 3. Pilate had been warned that any other infraction within the ninety-day probationary period, no matter how minor, would result in his immediate discharge. Pilate acknowledged he knew he could be terminated during this probationary period, testifying “that’s the very reason I was very careful to walk on eggshells for ninety days to make sure I didn’t do anything wrong, and didn’t violate any of their rules, because I wanted to keep my job.” But, according to TA, Pilate was not careful and again violated TA’s safety policy during his probationary period — this time by driving a company truck in an unsafe manner.

¶ 4. The specific violation resulted from an alleged intentional act where Pilate drove a company service truck onto the curb and grass beside a parking lot to attempt to circumvent the company’s machine-operated gate system. Pilate could have used his access card to lift the gate or used the gate’s call button. Instead, according to TA’s general manager, Todd Avery, Pilate posed a danger to himself and the company vehicle by not following the road, almost hitting a pole while trying to go over the curb. One of TA’s field managers witnessed the incident and reported it to Avery. Pilate testified he accidentally scraped the curb but did not jump it.

¶ 5. The administrative law judge (ALJ) found Pilate had been discharged for operating a company vehicle in an unsafe manner. Thus, Pilate was disqualified from receiving unemployment benefits. After reviewing the record, the MDES Board of Review affirmed the ALJ’s decision, adopting the ALJ’s findings of fact. The circuit court affirmed the MDES Board of Review’s decision. And Pilate timely appealed from the circuit court.

STANDARD OF REVIEW

¶ 6. “[Jjudicial review of a Board of Review’s ruling is limited.” Booth v. Miss. Employment Sec. Comm’n, 588 So.2d 422, 424 (Miss.1991). “[T]he findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” Miss. Code Ann. § 71-5-531 (Rev. 2011). Thus, we give great deference to an administrative agency’s findings and decisions. Allen v. Miss. Employment Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994). And we must affirm if the decision is supported by substantial evidence. Reeves v. Miss. Employment Sec. Comm’n, 806 So.2d 1178, 1179 (¶ 5) (Miss.Ct.App.2002).

¶ 7. Our limited inquiry requires that we “not reweigh the facts of the case or insert [our] judgment for that of the agency.” Allen, 639 So.2d at 906. We will reverse an agency’s decision only when it (1) is not supported by substantial evidence; (2) is arbitrary or capricious; (3) is beyond the scope or power granted to the agency; or (4) violates a person’s constitutional rights. Id.

DISCUSSION

¶8. Where an employee has been previously disciplined according to the employer’s policy and given a final warning, a subsequent violation constitutes misconduct. Miss. Employment Sec. Comm’n v. Barnes, 853 So.2d 153, 157 (¶ 17) (Miss.Ct.App.2003). Here, Pilate was so warned.

¶ 9. Mississippi statutory law provides that “an individual shall be disqualified for [unemployment] benefits ... for misconduct connected with his work if so found by the department.” Miss.Code Ann. § 71 — 5—513(A)(1)(b) (Rev. 2011). In Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982), the Mississippi Supreme Court addressed the meaning of the term “misconduct,” as it applies to our unemployment-compensation statute. Misconduct is “conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee.” Id. (citing Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941)). Misconduct includes “carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent[,] or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer[.]” Id. But “[m]ere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion [are] not considered ‘misconduct’ within the meaning of the statute.” Id.

¶ 10. The MDES neither found nor does the record support mere inefficiency or isolated negligence on Pilate’s part. Rather, MDES found, because Pilate was aware a second safety violation while on probation was grounds for immediate termination, Pilate’s “actions in having another safety violation while on probation for a prior violation shows a willful and wanton disregard of the employer[’]s interest and constitute misconduct connected with work.”

¶ 11. Pilate disputes TA’s claim that he was discharged for “misconduct.” He argues the actual reason for his termination was due to staff cuts or a reduction in work force. Pilate relies on an employment verification form that listed staff reduction as the reason his employment ended. Pilate testified Avery told him TA could not afford to pay him. Avery testified he never told Pilate TA was discharging him as part of a staff reduction. While TA did cut some hourly workers at the time of Pilate’s discharge, these cuts did not apply to commissioned employees, like Pilate. Avery further testified the TA staff member filling out the employment-verification form should have looked at the personnel-action form, which clearly states Pilate was terminated for unsafe driving, and that the staff member did not have the authority to deviate from this reason on the employment verification form.

¶ 12. Presented with Avery’s testimony and the personnel-action form as well as Pilate’s ulterior-motive theory and employment verification form, MDES found Avery’s testimony to be credible and that Pilate was discharged for misconduct. It is not for this court to re-weigh this evidence on appeal or inject our own judgment for the agency’s. Allen, 639 So.2d at 906.

¶ 13. We find MDES’s decision and reasoning is supported by substantial evidence and was neither “arbitrary” nor depended on its will alone. Wright v. Pub. Employees Ret. Sys., 24 So.3d 382, 388 (¶ 29) (Miss.Ct.App.2009) (citing Pub. Employees Ret. Sys. v. Marquez, 774 So.2d 421, 429 (¶ 34) (Miss.2000)). Thus, we affirm.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RUSSELL, J.

IRVING, P.J.,

dissenting:

¶ 15. The majority finds that MDES’s decision to deny Pilate unemployment benefits based on “misconduct” was supported by substantial evidence. Based on my review of the record, TA failed to meet its burden of proving misconduct by “substantial, clear and convincing evidence.” While TA’s general manager attempted to explain the conflicting reasons given for Pilate’s termination, his testimony was, at best, self-serving and arguably pretextual, as it would enable TA to avoid an unemployment-compensation claim. I cannot accept that under such circumstances, TA proved by clear and convincing evidence that it terminated Pilate for misconduct. Therefore, I dissent. I would reverse and render the decision of MDES and the order of the circuit court affirming that decision and remand this case to MDES for a determination of and an award of unemployment-compensation benefits.

¶ 16. At the September 21, 2009 hearing before the ALJ, Pilate testified that he scraped-but did not jump-a curb in the company vehicle. Pilate further testified that his termination was related to decreased business and TA’s efforts to reduce its payroll expense. In support of his claim, Pilate pointed to the Employment Verification Form completed by TA, which lists the reason for termination as “due to economic downfall and sales had to do staff reduction.”

¶ 17. TA’s general manager, Avery, admitted that there had been reductions in hourly workers at the time that Pilate was terminated. However, Avery explained that Pilate worked on commission and no commissioned employees were released. Additionally, Avery pointed to TA’s Personnel Action Form, which listed the reason for Pilate’s termination as “failure to maintain company equipment” and described the incident with the company vehicle where Pilate allegedly jumped a curb.

¶ 18. When questioned regarding the conflicting reasons for termination listed on the Employment Verification Form and the Personnel Action Form, Avery initially testified that the Employment Verification Forms are completed by a “third[-]party company.” However, the form contained in the record is signed as being completed by Qwanda Anderson, TA’s on-site bookkeeper. Later on, Avery testified that Anderson was the “back-up bookkeeper” and was still in training at the time that the form was completed. He further explained that generally the Personnel Action Form is given to the bookkeeper, who then uses it to complete the Employment Verification Form.

¶ 19. On September 23, 2009, the ALJ rendered her decision affirming the denial of benefits. Pilate appealed to the MDES Board of Review, which remanded the case to the ALJ and requested that additional testimony be taken. Specifically, the Board requested testimony from Van Sheppard, a TA employee who allegedly witnessed Pilate jump a curb in the company vehicle.

¶ 20. On November 23, 2009, the ALJ held a second hearing. Sheppard testified that he had witnessed someone drive a company truck over a curb to avoid the parking gate. Sheppard then notified Avery that he had witnessed someone driving in an unsafe manner. Sheppard admitted that he did not recognize the driver. Avery explained that when Sheppard reported the incident, Avery pulled work orders to determine which mechanic was driving. According to Avery, at the time that the incident occurred, Pilate was the only mechanic out on a work order in a company vehicle. When asked whether Pilate admitted to jumping a curb to avoid the parking gate, Avery testified that he could not recall.

¶21. The employer carries the burden of proving misconduct by “substantial, clear and convincing evidence.” Miss. Employment Sec. Comm’n v. Johnson, 9 So.3d 1170, 1173 (¶ 8) (Miss.Ct.App.2009) (quoting Ferrill v. Miss. Employment Sec. Comm’n, 642 So.2d 933, 936 (Miss.1994)). In my judgment, TA failed to meet its burden. Specifically, TA did not provide an adequate explanation for the conflicting reasons for Pilate’s termination. The Personnel Action Form lists the basis for termination as “failure to maintain company equipment”; however, the Employment Verification Form lists the reason for termination as “due to economic downfall and sales had to do staff reduction.”

¶22. When asked to explain the discrepancy, Avery initially testified that the Employment Verification Form is sent to a third party for completion; however, he later testified that the on-site bookkeeper, who was new to her job, had erroneously prepared the form. While Avery contended that Pilate was not terminated to reduce payroll expenses, he admitted “getting on to” Pilate for his overtime hours and reducing hourly staff at the same time that Pilate was terminated. Given these facts, I am not persuaded that TA’s decision to terminate Pilate for “misconduct” was not pretextual. Other jurisdictions have recognized that because “an employer’s contribution to the unemployment[-]compensation fund is affected by the claims experience of its employees,” an employer has an incentive to “characterize a termination as based on misconduct” to avoid a claim. Morris v. U.S. Envtl. Prot. Agency, 975 A.2d 176, 182 n. 5 (D.C.2009).

¶ 23. Furthermore, “the question of whether an employee committed misconduct must be resolved with reference to the [unemployment-compensation statute’s] purpose, which is to protect employees against economic dependency caused by temporary unemployment.” Id. at 181 (quoting Chase v. D.C. Dep’t of Employment Servs., 804 A.2d 1119, 1123 (D.C.2004)). Additionally, given the remedial nature of the unemployment-compensation statute, “its provisions must be liberally and broadly construed.” Id. (citation omitted). See also Nevettie v. Wal-Mart Assoc., Inc., 331 S.W.3d 723, 727 (Mo.Ct.App.2011) (explaining that the term “ ‘misconduct’ should not be so literally construed as to effect a forfeiture of benefits by an employee except in clear instances”).

¶ 24. Given the beneficent purpose of the unemployment-compensation statute, doubtful cases, such as Pilate’s, should be resolved in favor of the employee seeking benefits. Therefore, I believe that the MDES erred in denying Pilate unemployment benefits.

¶ 25. For the above reasons, I dissent.

RUSSELL, J., JOINS THIS SEPARATE WRITTEN OPINION.


author: MAXWELL, J.,

text:
    Michael GARY Sr., Appellant v. Wanda Woods GARY, Appellee.
    No. 2010-CA-02057-COA.
    Court of Appeals of Mississippi.
    March 27, 2012.

      James D. Minor Sr., attorney for appellant.
    Wanda Woods Gary, appellee, pro se.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Michael Gary Sr. and Wanda Woods Gary’s original divorce decree ordered Michael to transfer $35,938 in retirement funds to Wanda through a Qualified Domestic Relations Order (QDRO). Before the transfer but after he lost his job, Michael moved his retirement funds to an individual retirement account (IRA). Learning Michael’s 401 (k) and pension had no money, Wanda moved for contempt, which resulted in a consent decree that ordered Michael to pay Wanda $35,938 “at his own expense.” But Michael did not pay, arguing he should be able to transfer money from his IRA using a QDRO. Relying on the consent decree, the chancellor found Michael in contempt for not complying and ordered him to pay Wanda $35,938 in cash and $2,500 in attorney’s fees. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On February 25, 2009, Chancellor Percy Lynchard entered the final divorce decree for Michael and Wanda. Paragraph nine of the decree found Michael had accumulated 59% of his 401(k) plan and pension fund with his employer, DHL, during the marriage. The decree awarded Wanda one half of this 59% (or $27,600 from the 401(k) plan and $8,338 from the pension fund) to be transferred to an account in Wanda’s name only “by way of a Qualified Domestic Relations Order that shall be prepared by [Wanda’s] attorney.”

¶ 3. On August 5, 2010, Wanda’s attorney received a letter that Michael had no assets in his 401 (k) or pension fund to segregate. Since the divorce, Michael had lost his job with DHL and moved his funds to an IRA. On October 14, 2009, Wanda petitioned the chancery court to find Michael in contempt, requesting $27,600 from Michael’s 401 (k) and $8,338 from his pension.

¶ 4. The case, which had been closed with the final divorce decree, was reopened and assigned to Chancellor Vicki B. Cobb. On March 3, 2010, Michael and Wanda entered a consent decree. Paragraph six of the decree found:

That the Defendant, Michael Gary, Sr. has of this date failed to pay the sum of $27,600.00 and $8,338.00. That in accordance therewith, the Defendant is ordered to immediately upon entry of this Order, and at his own expense, withdraw the amount of $27,600.00 and $8,338.00 from wherever he has placed these funds and pay said funds to [Wanda] within ninety (90) days of entry of this Order. Husband shall pay the amount of $1,500.00 to [Wanda’s attorney] for her attorney’s fees incurred in preparing the Qualified Domestic Relations Order. On the report back date the Court will determine if the Defendant is in wilful contempt of court.

¶ 5. On July 12, 2010, an amended divorce decree was entered nunc pro tunc to February 25, 2009. In the revised order, paragraph nine still found Wanda was entitled to one half of the 59% of the 401(k) and pension. But “[s]ince the funds have now been rolled into an IRA account, it is hereby ordered that [Wanda] is awarded the amount of $35,938.00 to be transferred from the IRA assets.... ”

¶ 6. Michael did not transfer the money, and Wanda reasserted her petition for citation of contempt. At the November 15, 2010 contempt hearing, Michael argued he should be able to transfer the money to Wanda through a QDRO. The chancellor found, due to Michael removing the funds from the 401 (k) and pension, it was impossible to comply with the original divorce decree. As a result, the chancellor held from the bench:

[T]he consent order changed the character of the money that [Michael was] supposed to transfer to [Wanda]. It doesn’t say by virtue of a Qualified Domestic Relations Order, and when I look at your amended divorce decree, it does not require you to transfer it as retirements funds. It requires you to transfer money to her.

The chancellor ordered Michael pay Wanda $35,938 in cash within ten days of the hearing. The chancellor also found Michael in contempt and awarded Wanda $2,500 in attorney’s fees. This order was entered on November 29, 2010 nunc pro tunc to November 15, 2009.

¶ 7. On November 24, 2010, Michael filed a motion for reconsideration. He argued the chancellor’s order created a significant financial hardship on him, when it was Wanda’s fault she did not execute the QDRO before he had to transfer the money out of his 401 (k) and pension. The chancellor denied the motion on December 7, 2010. Michael timely appealed the denial of reconsideration.

ISSUES ON APPEAL

¶ 8. Michael raises two issues on appeal.

¶ 9. First, he argues Chancellor Cobb erred in denying his motion for reconsideration and holding the amended divorce decree changed the award of retirement funds to cash to be withdrawn at Michael’s expense. Michael asserts there would have never been a problem with payment had Wanda’s attorney submitted a QDRO earlier, before Michael lost his job with DHL. He claims he did not “fail” to pay and should not be responsible for the penalties and tax consequences of withdrawing the funds from his IRA. Michael then argues Chancellor Cobb violated the law of the case by holding the amended decree required cash payment when the original decree, entered by Chancellor Lynchard, clearly required a QDRO.

¶ 10. Second, Michael argues the chancellor erred in holding him in contempt for moving his funds from his DHL 401 (k) and pension fund, in response to losing his job, before Wanda submitted a QDRO. Michael points to the high burden of proof for civil contempt — clear and convincing evidence — which is placed on the movant, Wanda. See Allred v. Allred, 735 So.2d 1064, 1067-68 (¶¶ 10, 15) (Miss.Ct.App.1999). And he argues there is not evidence he wilfully refused to pay — instead, he had to transfer the funds out of his 401(k) and pension because he lost his job.

¶ 11. Wanda filed no brief in response. While the traditional view is that failure to file a brief is tantamount to a confession of error, there is an exception when this court can “state with conviction after reviewing the record and brief of the appealing party[] that no error existed.” Conservator of Eldridge v. Sparkman, 813 So.2d 758, 753 (¶ 7) (Miss.Ct.App.2001) (citing Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997); Jackson v. Walker, 240 So.2d 606, 606 (Miss.1970)). If this court can “say with confidence that the case should be affirmed[,]” then it will not automatically reverse based on the appellant’s silence. Id. at 756 (¶ 8) (citing Graham v. Graham, 767 So.2d 277, 279 (¶ 6) (Miss.Ct.App.2000)).

STANDARDS OF REVIEW

¶ 12. Because Michael filed his motion to reconsider five days before the November 29, 2010 entry of the nunc pro tunc order, this court considers his motion for reconsideration as a motion for new hearing or, alternatively, to amend or alter the judgment under Rule 59. M.R.C.P. 59(a), (e) (requiring both motion for new trial and a motion to alter or amend the judgment “be filed not later than ten days after entry of the judgment”); see Street v. Street, 936 So.2d 1002, 1008 (¶ 17) (Miss.Ct.App.2006) (finding a motion to alter the judgment filed after the court made findings of fact but before the entry of a final judgment was timely under Rule 59).

¶ 13. “An appeal from a denial of a Rule 59 motion may address the merits of the entire underlying proceeding, and review of a trial judge’s denial of a Rule 59 motion is limited to abuse of discretion.” Perkins v. Perkins, 787 So.2d 1256, 1261 (¶ 9) (Miss.2001). “This Court will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Townsend v. Townsend, 859 So.2d 370, 371-72 (¶ 7) (Miss.2003) (quoting McBride v. Jones, 803 So.2d 1168, 1169 (¶ 7) (Miss.2002)).

¶ 14. This court reviews civil-contempt decisions for manifest error. Jones v. Mayo, 53 So.3d 832, 838 (¶ 21) (Miss.Ct.App.2011) (citing Dennis v. Dennis, 824 So.2d 604, 608 (¶¶ 7-8) (Miss.2002)).

DISCUSSION

¶ 15. The consent decree clearly ordered Michael to pay Wanda $35,938 at his own expense. Therefore, even though Wanda filed no responsive brief, we can say with confidence the chancellor’s finding of contempt and order that Michael pay Wanda $35,938 in cash and $2,500 in attorney’s fees should be affirmed.

¶ 16. Contrary to Michael’s argument, Chancellor Cobb did not fail to apply the law of the case established by Chancellor Lynchard. Michael relies on Jones to assert he should be permitted to pay Wanda through a QDRO because to award Wanda otherwise would violate the intent of the original divorce decree. See Jones, 53 So.3d at 836-37 (¶¶ 13-15). But unlike Jones, this case is not about a subsequent chancellor having to interpret a previous chancellor’s order. Cf. Jones, 53 So.3d at 837 (¶ 15). Because the funds were no longer in the DHL 401(k) and pension fund, both parties acknowledged it was impossible to comply with the original decree. So a new consent decree was entered on March 3, 2010. Chancellor Cobb rightly found this later decree “changed the character” of the award. The original divorce decree was no longer the law of the case—the consent decree and resulting amended divorce decree now controlled. Thus, in contrast to Jones, Chancellor Cobb’s task was not to interpret the intent of the original decree entered by a previous chancellor. Instead, her limited role was to enforce the clear terms of the consent decree and amended divorce decree.

¶ 17. The consent decree ordered Michael to withdraw $35,938 “at his own expense” and made no reference to a QDRO. The later-filed amended divorce decree also awarded Wanda $35,938.00 “to be transferred from the IRA assets” also without mentioning a QDRO. Based on these decrees, we find the chancellor neither abused her discretion in finding Michael was required to pay Wanda in cash nor in denying Michael’s motion to reconsider.

¶ 18. Regarding the contempt finding, Michael’s argument focuses on the events of 2009 — his job loss and Wanda’s alleged feet-dragging in submitting the QDRO. But Michael’s does not address the events of 2010 — namely, the fact Michael entered into a consent decree in March 2010 in which he was ordered to withdraw $35,938 immediately and at his own expense but then refused to do so, requiring Wanda to reassert her motion for contempt. Based on these facts, we find the chancellor did not manifestly err in finding Wanda met her burden to show civil contempt. See Jones, 53 So.3d at 838 (¶ 21); Allred, 735 So.2d at 1067-68 (¶¶ 10, 15).

¶ 19. We, therefore, affirm the chancellor’s finding of contempt and order that Michael pay Wanda $35,938 in cash and $2,500 in attorney’s fees.

¶ 20. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS AND FAIR, JJ., CONCUR. RUSSELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: GRIFFIS, P.J.,

text:
    Jimmy Scott THOMPSON, Appellant v. Tammy Renee Evans Thompson HUTCHINSON, Appellee.
    No. 2010-CA-01916-COA.
    Court of Appeals of Mississippi.
    March 27, 2012.

      William Matthew Thompson, Jackson, attorney for appellant.
    Kevin W. Brady, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Jimmy Scott Thompson (“Scotty”) filed a petition for modification of child custody against Tammy Renee Evans Thompson Hutchinson. The chancellor denied the modification and dismissed the action under Mississippi Rule of Civil Procedure 41(b). The chancellor found that there was no material change in circumstances that adversely affected the child. Scotty argues that the chancellor erred by finding no material change in circumstances, and failing to make specific findings of fact and conclusion of law. We find no error and affirm.

FACTS

¶ 2. Scotty and Tammy were divorced on December 30, 1998. They were awarded joint legal custody of their two minor children, with primary physical custody awarded to Tammy. The two minor children are Kelly, born July 15, 1995, and Hayden, born May 12,1998.

¶ 3. On September 23, 2004, an order of modification was entered that increased Scotty’s child-support obligation. On December 18, 2008, Scotty filed a petition for modification of child custody seeking modification of both the legal and physical custody of Kelly and Hayden. A hearing on the matter was set for April 2, 2009. The chancellor learned that Scotty alleged abuse of the minor children as a material change in circumstance. The chancellor appointed Prentiss Grant to serve as guardian ad litem under Mississippi Code Annotated section 93-5-23 (Supp.2011).

¶ 4. The chancellor held a hearing on June 7, 2010. Scotty testified that he is engaged, and he and his flaneé have a two-month-old daughter. Scotty lives with his mother and sister. Scotty testified that he and Hayden have a very close relationship. Scotty feels that Hayden’s living arrangements are stressful to him and that Hayden would be happier living with Scotty. Scotty offered the testimony of his sister and mother. They both testified that Hayden is happy with Scotty and that Scotty takes care of Hayden. Scotty’s mother testified that Hayden would occasionally cry and exhibit an upset stomach when it was time for him to return home.

¶ 5. Scotty also testified that several negative situations had occurred that warrant a modification in custody. Scotty claimed that Tammy and her husband, Tony Hutchinson, have had an argument that resulted in law enforcement being called to their house. Scotty alleged that Tony disciplined Hayden in the past by choking him and poking his finger in Hayden’s cheek. Further, Scotty testified that an incident at school involving Hayden’s teacher left Hayden bruised on his buttocks. Scotty alleged that Tammy and Tony failed to investigate the circumstances of this incident. Scotty testified that he has reported Tony to the Department of Human Services (“DHS”) on three occasions.

¶ 6. Tony testified at the hearing and admitted that he had disciplined Hayden by placing his hand on his shoulders by his neck leaving a mark. Tony also testified that the custody situation surrounding Hayden placed a strain on his marriage to Tammy. Tony testified, however, that there were positives in his relationship with Hayden. He testified that he picked Hayden up from school, treated him like his own kids, and even was with Hayden when he killed his first deer. At the time Hayden killed the deer, Tony called Scotty from the field to involve him in Hayden’s experience. Tony testified that DHS had investigated and found that Scotty’s allegations of abuse were unfounded.

¶ 7. Hayden testified he and his dad are close and talk often. Hayden stated several times that he preferred his time at Scotty’s house. Hayden admitted that he was afraid of Tony because of the choking incident that occurred around eighteen months prior to the hearing. Hayden also testified that he previously had a condition that caused him to pull out his hair due to stress. Hayden testified he enjoys spending time with his dad and playing video games.

¶ 8. A letter from Hayden’s counselor was introduced at the hearing. The counselor observed that Hayden was angry and upset when Tony yelled at him. The counselor also recorded Hayden stating in session that “[Scotty] was mean sometimes too.” Hayden reported that therapy was helping him with his emotions, and Tony was yelling at him less. The counselor found “Hayden described normal emotions for a child of divorce.” Hayden also discussed with his counselor that his parents “fussing” upset him.

¶ 9. After Scotty presented his case, Tammy moved for dismissal under Mississippi Rule of Civil Procedure 41(b). In his order, the chancellor granted the motion finding that there was not a material change in circumstances to warrant modification of custody. In the chancellor’s order, however, the chancellor changed the current visitation schedule to allow Scotty to spend more time with the children. The visitation schedule now includes every other weekend with the non-custodial parent, uninterrupted visitation with Hayden from the first day of summer vacation until 6:00 p.m. Father’s Day, uninterrupted visitation with Hayden two weeks after Father’s Day to one week before school is set to begin, and uninterrupted visitation with both children during even-numbered years from 6:00 p.m. the Friday before Thanksgiving to 6:00 p.m. the Wednesday before Thanksgiving. It is from this order that Scotty appeals.

STANDARD OF REVIEW

¶ 10. Matters involving child custody are within the sound discretion of the chancellor. Sturgis v. Sturgis, 792 So.2d 1020, 1023 (¶ 12) (Miss.Ct.App.2001) (citation omitted). A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So.2d 623, 625 (¶ 8) (Miss.2002) (citation omitted). This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 625-26 (¶ 8). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (¶ 5) (Miss.2002) (citation omitted).

ANALYSIS

1. Material Change in Circumstances

¶ 11. Scotty contends the chancellor committed reversible error by finding there was no material change in circumstances when the chancellor failed to consider and apply Mississippi Code Annotated section 93-5-24(9) (Rev.2004).

¶ 12. In Mabus v. Mabus, 847 So.2d 815, 818 (¶ 8) (Miss.2003) (internal citations omitted), the Mississippi Supreme Court stated the legal standard for a modification proceeding as follows:

The burden of proof is on the movant to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial home. In the ordinary modification proceeding, the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.

¶ 13. Here, the chancellor determined that Scotty’s testimony, as well as the testimony of his sister and his mother, conflicted with Hayden’s at several different times. The chancellor stated that he had a difficult time determining who was telling the truth. For example, Scotty, his mother, and his sister testified that Hayden was involved in a four-wheeler accident that left him with scrapes and injuries. The chancellor questioned Hayden repeatedly on the issue, and Hayden stated that the accident never happened. Further, the chancellor found that Hayden never stated that he was afraid of his mother in any way. The chancellor stated:

[T]he biggest problem that I’ve got with the plaintiffs case is the credibility of the witnesses, leaving the Court with not the slightest-there’s nothing that I could say that there has been a material change in circumstances. The Mississippi Supreme Court has been very clear, and it has said that a change in custody is a jolting, traumatic experience which should not be ordered without serious cause.
I cannot looking at the evidence fairly, I think what we’re dealing with is a situation where a little boy is — this pre-ado-lescent child is hungry to spend more time with his daddy, and I think that— that he’s not to be faulted for that.
There clearly has not been any showing that there’s a genuine danger to the child inside the Hutchinson house-hold_ Mr. Tony is one of — -frankly, one of the most believable and credible witnesses, frankly, I’ve ever had in this court.

¶ 14. The chancellor then granted Tammy’s Rule 41(b) motion, and he determined that Scotty had not met his burden of proof showing that there had been a material change in circumstances based on the evidence presented.

¶ 15. Scotty argues that the chancellor erred in his determination because the evidence showed a pattern of domestic violence which needed to be considered. Mississippi Code Annotated section 93-5-24(9)(a)(i) (Rev.2004) states in part:

In every proceeding where the custody of a child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence.

The statute defines a history of perpetuating family violence as either a pattern of family violence against a member of the household or a single incident of family violence that results in serious bodily injury. Id.

¶ 16. Scotty contends that the discipline incidents and the altercation between Tammy and Tony resulting in law enforcement being dispatched to the house are examples of “perpetrating family violence” under the statute. The chancellor found Scotty’s allegations to be unsupported by the testimony and evidence presented at the hearing. The chancellor found the testimony presented to be conflicting among the witnesses. Further, there was no showing by a preponderance of the evidence that any incident resulted in serious bodily injury.

¶ 17. This Court found, in Brumfield v. Brumfield, 49 So.3d 138, 143 (¶ 17) (Miss.Ct.App.2010), “no abuse of discretion in the chancellor’s finding that the single incident did not result in ‘serious bodily injury,’ as required by the statute to support a finding of a history of family violence.” In Brumfield, the mother and father fought in front of the children over whether makeup should be thrown away because it was placed on the floor. Id. at 142 (¶ 12). After an argument in front of their children, the father drug the mother out to the front yard, threw her on the ground, and hit her with his belt. Id. at 142-143 (¶ 12). This Court agreed with the chancellor’s finding that this occurrence was one incident of domestic violence that did not result in serious bodily injury as required by the statute. Id. at (¶ 13).

1118. Here, Tony and Tammy argued in the front yard; however, no act of violence occurred. Tony did admit to placing his hands near Hayden’s neck leaving a mark and spanking Kelly leaving a red mark. DHS investigated Tony at the request of Scotty several times and found the allegations to be unfounded. Additionally, Hayden’s counselor reported “[t]he yelling and name-calling,” by his stepfather had gotten better. The alleged instances of abuse do not rise to the level the statute discusses that results in serious bodily injury. Scotty failed to show by a preponderance of the evidence a pattern of family violence, or an incident of family violence that resulted in serious bodily injury.

¶ 19. Accordingly, we find that the chancellor was within his discretion. We do not find that he was manifestly wrong or clearly erroneous, and the chancellor’s findings are supported by substantial credible evidence. This issue is without merit.

2. Specific Findings of Fact and Conclusions of Law

¶ 20. Scotty argues that the chancellor failed to make specific findings of fact and conclusions of law because he did not specifically mention the domestic violence and Hayden’s hair pulling condition, diagnosed as Trichotillomania. Mississippi Rule of Civil Procedure 52(a) states:

In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.

¶ 21. Scotty contends that the chancellor’s bench opinion was insufficient because it failed to address these two specific areas. Scotty requested for specific findings of fact to be made and motioned for a new trial. The chancellor determined that his bench opinion contained sufficient, specific findings of fact that supported his reasoning for his decision. The chancellor denied Scotty’s request and declined to make further findings of fact or conclusions of law.

¶ 22. The supreme court has held:
Rule 41(b) provides that “[i]f the court renders judgment on the merits against the plaintiff, the court may make findings as provided in Rule 52(a).” Miss. R. Civ. P. 41(b) (emphasis added) (with certain exceptions, a dismissal under Rule 41(b) operates as an adjudication on the merits). Thus, Rule 41(b) makes specific findings of fact and conclusions of law discretionary with the trial court.

Cox v. Cox, 976 So.2d 869, 880 (¶ 54) (Miss.2008). The chancellor’s bench opinion gave support for his ruling. Further, the bench opinion explained in detail how the chancellor arrived at his decision by discussing each witnesses’ credibility and what facts he determined to be truthful.

¶ 23. Although the chancellor’s bench opinion did not address Hayden’s hair pulling condition specifically, the chancellor did address Hayden’s stress and his overall well-being. The chancellor found that no material changes in circumstances had occurred and supported his decision by specific facts from the record. The chancellor did address the instances of alleged abuse and found that many of the instances alleged by Scotty were not supported by credible evidence. The chancellor stated:

There clearly has not been any showing that there’s a genuine danger to the child inside the Hutchinson household. ... I cannot find, if considering the evidence fairly, that if I were to believe everything that Hayden has said about what has happened to him in the custodial parent’s home that-even if everything he said was true, it simply is not enough to establish a showing of material change in circumstances.

¶24. We find that the chancellor did not err in denying Scotty’s request to make specific findings of fact and conclusion of law. The chancellor’s bench opinion was sufficient to explain and support his findings in the present case. This issue has no merit.

¶ 25. THE JUDGMENT OF THE RANKIN COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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