author: ROBERTS, J.,

text:
    Donovan Eric JOHNSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00711-COA.
    Court of Appeals of Mississippi.
    May 18, 2010.
    Rehearing Denied Aug. 31, 2010.
    Certiorari Denied Jan. 20, 2011.

      Hunter Nolan Aikens, attorney for appellant.

      Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Attala County Circuit Court found Donovan Eric Johnson guilty of two counts of selling cocaine. For each count of selling cocaine, the circuit court sentenced Johnson to twenty-five years in the custody of the Mississippi Department of Corrections. However, the circuit court set the sentences to run concurrently. Following Johnson’s unsuccessful post-trial motions for a new trial and/or a judgment notwithstanding the verdict, Johnson appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. During December 2007, Laci Gove was arrested and charged with selling prescription drugs. To avoid prosecution, Gove agreed to act as a confidential informant. On January 23, 2008, Gove met with Officers Louis Gowan and Robert Land of the Kosciusko Police Department. Officer Gowan and Officer Land planned to have Gove conduct a “controlled buy” of narcotics.

113. Officer Gowan and Officer Land provided Gove with $40 in marked bills. Officer Land then left and went to the Mon-fort Jones Memorial Hospital parking lot, which was approximately 100 to 150 yards from Johnson’s house. Meanwhile, Officer Gowan searched Gove’s person and her vehicle. Officer Gowan also put a hidden camera in Gove’s makeup bag. Officer Gowan followed Gove to Johnson’s house. He parked next to Officer Land’s vehicle when Gove pulled into Johnson’s driveway.

¶ 4. Gove went into Johnson’s house. A few minutes later, Gove and Johnson walked outside to Gove’s car. They talked for a few minutes before Gove drove away. Officer Gowan followed Gove back to the police department, where Gove gave him a small bag of cocaine. Officer Land remained in the hospital parking lot until Officer Gowan called him and told him he could return to the police department.

¶ 5. Gove then agreed to attempt a second buy. However, Gove had to leave the police department to pick up her pit bull from her veterinarian’s clinic. Afterward, Gove returned to the police department and met Officer Gowan. Officer Gowan “re[-]searched her, [and] patted her down” before Gove left to conduct the second buy. Again, Officer Gowan and Officer Land waited across the street in the hospital parking lot. Gove pulled into Johnson’s driveway. Gove stayed in her car, because Johnson came outside. After a brief moment, Johnson went back inside his house. Officer Gowan followed Gove back to the police department. Officer Land remained behind until Officer Gowan called for him. Gove gave Officer Gowan a second small bag of cocaine. Gove’s video equipment malfunctioned during the second buy. As a result, the exchange was not recorded. Officer Gowan gave the two small bags to the Mississippi Crime Laboratory for testing. Chris Wise, a forensic scientist with the Mississippi Crime Laboratory, testified that he weighed and tested the substances. Wise confirmed that the small bags each contained .4 gram of cocaine.

¶ 6. On March 19, 2009, Johnson went to trial. Officer Gowan and Officer Land testified regarding their involvement in the two buys. Gove testified that Johnson sold her drugs during both of the times she visited his house. More specific aspects of her testimony will be addressed in the analysis portion of this opinion.

¶ 7. Johnson testified at the trial. Johnson’s defense theory was that Gove falsely created the appearance that he sold her cocaine so she could avoid being prosecuted for selling prescription drugs. According to Johnson, during Gove’s first visit, he was preparing to do a breathing treatment for his asthma. He went on to testify that he did not sell Gove any drugs during that visit. As for Gove’s second visit, Johnson testified that he merely went outside to see her pit bull. Johnson testified that he did not sell Gove any drugs during her second visit.

¶ 8. Johnson called Chauncy Dotson as a witness. Dotson testified that approximately two-and-one-half weeks before Johnson’s trial, Gove told him that Johnson had not sold her any drugs. According to Dotson, Gove said she did not know about the charges Johnson faced. As previously mentioned, the jury found Johnson guilty of two counts of selling cocaine. Johnson appeals.

ANALYSIS

I. WEIGHT OF THE EVIDENCE

¶ 9. Johnson claims that both of the jury’s verdicts are contrary to the overwhelming weight of the evidence. Accordingly, Johnson claims the circuit court erred when it denied his motion for a new trial. Johnson’s argument under this issue is based on four concepts: (1) Gove was not a credible witness; (2) Gove could have smuggled cocaine both times she encountered Johnson; (3) the video footage and photographic evidence of one of the two buys were unclear; and (4) Johnson testified that the video and photographic evidence merely depicted a component of a prescribed breathing treatment, rather than cocaine.

¶ 10. We are mindful that, as we review the circuit court’s decision to deny a motion for a new trial, this Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). The supreme court has further instructed that, when reviewing a trial court’s decision to deny a motion for a new trial:

the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Id. (footnote and internal citations and quotations omitted).

¶ 11. Johnson correctly notes that there was evidence that Gove told others that she did not purchase drugs from Johnson. During cross-examination, Gove admitted that she told Johnson’s attorney that she did not buy drugs from Johnson. Johnson also called Dotson as a witness, who testified that Gove told him that she “[did not] recall ... Johnson selling her any type of drug whatsoever, and she ha[d] no clue of what’s going on about the situation.” However, Gove also explained why she denied that she had bought drugs from Johnson. According to Gove, “Officer Gowan ... asked me not to speak of it [and] not to tell anybody until today. I was asked not to speak about it.” Gove also testified that Officer Gowan asked her to deny that she had purchased drugs from Johnson if anyone asked her about the cases pending against Johnson. Consequently, the jury heard conflicting evidence regarding whether Johnson actually sold Gove cocaine. The jury resolved that conflict in the evidence when it found Johnson guilty of both counts of selling cocaine. “The jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Nix v. State, 8 So.3d 141, 146 (¶ 26) (Miss.2009) (quoting Mohr v. State, 584 So.2d 426, 431 (Miss.1991)).

¶ 12. Additionally, Johnson’s defense counsel successfully requested that the circuit court instruct the jury pursuant to the following instruction designated as instruction D-13:

The Court instructs the jury that the law looks with suspicion and distrust on the testimony of an alleged informant, and requires the jury to weigh the testimony with great care and suspicion. You should weigh the testimony from an alleged informant, and passing on what weight, if any, you should give this testimony, you should weigh it with great care and caution, and look upon it with distrust and suspicion.

The Mississippi Supreme Court has held that although the decision to grant or deny a cautionary instruction regarding the weight of a testimony of an accomplice is within the discretion of a trial court, the circuit court’s decision to deny such an instruction may result in reversible error based on the circumstances of the case. Burke v. State, 576 So.2d 1239, 1242 (Miss.1991). However, Gove was a confidential informant. She was not an accomplice. “An accomplice for these purposes is a person who is implicated in the commission of the crime. That is to say, that if the evidence admits a reasonable inference that the witness may have been a co-perpetrator or the sole perpetrator the cautionary instruction should be given.” Id. The confidential informant in this case was not an accomplice to the crimes. In the context of the testimony of a confidential informant, the Mississippi Supreme Court has held that such cautionary-instruction language has been “properly eschewed as a comment on the weight of the evidence.” White v. State, 722 So.2d 1242, 1248 (¶ 34) (Miss.1998). Accordingly, the jury found Johnson guilty of both counts of selling cocaine even after it was instructed to view Gove’s testimony with heightened scrutiny. The jury acted within its discretion when it found Johnson guilty.

¶ 13. Johnson next argues that the verdicts are contrary to the overwhelming weight of the evidence because Officer Gowan conducted inadequate searches of Gove, her vehicle, and her makeup bag prior to Gove’s two buys. Officer Gowan testified that he did not have a drug-detecting dog check Gove or her car prior to either of the two buys. Although Officer Gowan testified that he conducted a pat-down search of Gove prior to both buys, he testified that he did not search the inside of Gove’s bra, the inside of her pants, or the area between her legs. When asked whether it was possible that he was not able to perform a “completely thorough search” of Gove, Officer Gowan answered, “that’s correct.” Additionally, Officer Gowan testified that he put a camera in Gove’s makeup bag, but he did not look inside every tube or container inside Gove’s makeup bag. Johnson also argues that Gove had an opportunity to acquire cocaine between the two buys because she left the police department to pick up her pit bull from her veterinarian. Johnson’s defense counsel cross-examined Officer Gowan and Officer Land regarding those aspects of the pre-buy searches of Gove. There was no evidence that Gove smuggled any drugs into either of her encounters with Johnson. At best, the perceived deficiencies in the pre-buy searches conducted by Officer Gowan and Officer Land created a question for the jury as to whether Gove could have smuggled cocaine into her meetings with Johnson.

¶ 14. Next, Johnson claims that the video and photographic evidence of the first of the two exchanges merely depicted him holding a bag that contained some unidentifiable substance. Johnson notes that he testified that the bag depicted in the video and photographic evidence contained substances that were necessary to administer a breathing treatment for his asthma. Gove testified that the photographs depicted Johnson holding a bag of cocaine. The conflicting testimony regarding the substance depicted in the photographic evidence created a question for the jury to resolve. We find no error in the jury’s resolution.

¶ 15. Viewing the evidence in the light most favorable to the verdict, we do not find that it would sanction an unconscionable injustice to allow the verdict to stand. Accordingly, we find that the circuit court acted within its discretion when it denied Johnson’s motion for a new trial.

II. INSTRUCTION S-l

¶ 16. Johnson claims the circuit court erred when it allowed the prosecution to submit a jury instruction designated as instruction S-l. Instruction S-l referred to the two charges against Johnson as “Count II” and “Count III.” Johnson argues that those references caused the jurors to be prejudiced against him, as they were led to believe Johnson faced an additional charge. Our standard of review is as follows:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case[;] however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Agnew v. State, 783 So.2d 699, 702 (¶ 6) (Miss.2001).

¶ 17. During the conference on the jury instructions, the circuit court asked Johnson’s attorney whether she had reviewed instruction S-l. Johnson’s attorney answered as follows:

I have, your Honor. As — as far as the language, in and of itself, I don’t have an issue. But the problem that I have is that it refers to everything as Counts 2 and 3, and I think it kind of leaves the jury the impression that there’s a Count 1 out there. I don’t know what the remedy is to cure that.

The circuit court then responded:

I don’t think there’s any other way to instruct them, though, because it is Counts 2 and 3 of the indictment. And, you know, in my court instructions, I am telling them not to speculate about anything that wasn’t offered in evidence and things like that, so I think they’re being honest in C-l that they’re not to speculate about anything that wasn’t presented to them.

Johnson’s attorney then said, “Okay. Other than this, I did not have a problem with S-1.”

¶ 18. The prosecution consistently presented evidence that Gove bought two small bags of cocaine. Despite instruction S-l’s reference to the two charges as Count 2 and Count 3, the jury never heard any reference to an actual additional charge. The jury could have reasonably inferred that if there had been an additional charge, that charge had been dismissed. Additionally, as the circuit court stated, the jury was instructed not to speculate on matters that were not entered into evidence. “Juries are presumed to follow the instructions given to them by the court.” Walton v. State, 998 So.2d 971, 977 (¶ 17) (Miss.2008). Accordingly, we find no merit to this issue.

III. ADMISSION OF PHOTOGRAPHS

¶ 19. Johnson argues that the circuit court erred when it allowed the prosecution to introduce six photographs into evidence. Designated as Exhibits S-3 through S-8, those photographs depicted images captured from the small camera that was concealed in Gove’s makeup bag during the first buy she conducted. Gove testified that the first buy occurred sometime between 9:00 a.m. and 10:00 a.m. Officers Gowan and Land testified that the first buy occurred at approximately 2:00 p.m. However, the pictures display a time of 10:14 a.m. and 10:15 a.m. When the prosecution submitted the pictures into evidence during Gove’s testimony, Johnson’s attorney objected and argued that there had “been testimony ... that this all took place at two o’ clock in the afternoon, and that’s not what these pictures reflect. It is inaccurate information.” The prosecution responded, “just because ... my camera don’t [sic] have the right date and time on it. She says those are — accurately reflect the scene when she was out there that day on the 23rd, buying drugs from ... Johnson.” The circuit court allowed the prosecution to submit the pictures and stated “that’s certainly something that can, you know, argue, but the — she has testified that that is an accurate representation of what occurred, and so I’ll allow them to be admitted.” On appeal, Johnson argues that the photographs were not properly authenticated prior to admission at trial. We are mindful that “[t]he admissibility of photographs generally lies within the sound discretion of the trial court; and, absent an abuse of discretion, the court’s decision will be upheld on appeal.” Roland v. State, 882 So.2d 262, 266 (¶ 14) (Miss.Ct.App.2004) (quoting Jackson v. State, 784 So.2d 180, 182 (¶ 9) (Miss.2001)).

¶ 20. At trial, Johnson’s attorney objected on the basis that the pictures contained a time reference that was contrary to the testimonies of Officers Gowan and Land, who testified that the first buy occurred at approximately 2:00 p.m. Johnson’s attorney did not object on the basis that Gove had not properly authenticated the photographs. Because Johnson’s attorney did not object on the basis of improper authentication at trial, this issue is procedurally barred on appeal. Seeling v. State, 844 So.2d 439, 445 (¶ 17) (Miss.2003).

¶ 21. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT OF CONVICTION OF TWO COUNTS OF THE SALE OF COCAINE AND SENTENCE OF TWENTY-FIVE YEARS FOR EACH COUNT TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ATTALA COUNTY.

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

      . Johnson had been indicted for three counts of selling cocaine. Because the events that served as the basis for Count 1 occurred on a different day than the events that led to Counts 2 and 3, Count 1 was severed from Counts 2 and 3. After Johnson was sentenced on Counts 2 and 3, the prosecution dismissed Count 1.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Ricky RYALS a/k/a Ricky B. Ryals, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00839-COA.
    Court of Appeals of Mississippi.
    June 1, 2010.
    Rehearing Denied Oct. 12, 2010.
    Certiorari Denied Jan. 20, 2011.
    Ricky Ryals, pro se, appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court:

¶ 1. On July 23, 2008, Ricky Ryals filed a pro se motion to vacate and set aside his conviction of capital murder and sentence. The Forrest County Circuit Court summarily dismissed Ryals’s motion as a successive writ and as time-barred. Aggrieved, Ryals appeals. On appeal, Ryals raises the following issues: (1) whether the trial court erred in summarily dismissing the motion for post-conviction relief; (2) whether the trial court erred in holding that the motion to amend Ryals’s pleadings asserting that Mississippi Code Annotated sections 97-8-21 (Rev.2006), 99-19-101 (Rev.2007), and 47-7-8 (Supp.2009) are inconsistent and void subjecting Ryals to an unconstitutional sentence, was barred by Mississippi Code Annotated sections 99-39-5 (Supp.2009) and 99-39-27(9) (Supp.2009); (3) whether the trial court erred in dismissing the motion for post-conviction relief under the erroneous standard of clear and convincing evidence; (4) whether the trial court erred in dismissing the motion for post-conviction relief holding that Ryals’s guilty plea was knowing, intelligent, and voluntary; (5) whether Ryals was denied effective assistance of counsel during the guilty-plea process, and (6) whether the trial court erred in limiting the appellate record to those pleadings and orders necessary for review of the court’s dismissal of Ryals’s motion for post-conviction relief. Finding no error, we affirm the judgment of the trial court.

FACTS

¶ 2. On December 2, 1997, Ryals was indicted for capital murder and manslaughter for killing his wife, Judy Ryals, and her unborn child during the commission of a robbery. On June 30, 1998, Ryals pled guilty to capital murder. The manslaughter charge was dismissed and the State waived the death penalty. Thereafter, Ryals was sentenced to life in the custody of the Mississippi Department of Corrections without the possibility of parole.

¶ 3. On June 25, 2001, Ryals filed his first motion for post-conviction relief. The trial court denied relief on January 18, 2003. This Court affirmed the trial court’s denial of post-conviction relief on September 7, 2004. Ryals v. State, 881 So.2d 933 (Miss.Ct.App.2004). On July 23, 2008, Ryals filed a second motion to vacate and set aside his conviction and sentence. On May 1, 2009, the trial court dismissed his motion for post-conviction relief. On May 27, 2009, Ryals timely appealed.

STANDARD OF REVIEW

¶ 4. When the appellate court reviews a trial court’s dismissal of a motion for post-conviction relief it will not disturb that decision unless the trial court’s factual findings are clearly erroneous. Phillips v. State, 25 So.3d 404, 406 (¶ 4) (Miss.Ct.App.2010). “However, where questions of law are raised the applicable standard of review is de novo.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008).

DISCUSSION

¶ 5. Ryals raises six issues on appeal; however, the threshold question before this Court is whether the trial court erred in summarily dismissing Ryals’s motion for post-conviction relief. We find that the trial court did not err in summarily dismissing Ryals’s motion for post-conviction relief.

¶ 6. The record indicates that Ryals filed his first motion for post-conviction relief in 2001. In his first motion for post-conviction relief, Ryals alleged that the evidence was insufficient to convict him, his guilty plea was not voluntarily and intelligently entered, and he received ineffective assistance from counsel. Ryals, 881 So.2d at 934. Accordingly, we find that Ryals’s motion for post-conviction relief presently before the Court is barred as a successive writ as Ryals’s previous motion for post-conviction relief raised these same arguments. In addition, these arguments do not fall within the purview of the exceptions to the successive-writ bar. Miss. Code Ann. § 99-39-23(6) (Supp.2009)

¶ 7. In addition, Ryals raises three issues in his second motion for post-conviction relief that were not raised in his first motion for post-conviction relief. In his second motion, Ryals also alleges that the trial court erred in holding that Ryals’s motion to amend was barred by Mississippi Code Annotated sections 99-39-5 and 99-39-27(9) because: (1) Mississippi Code Annotated sections 97-3-21, 99-19-101, and 47-7-3 are inconsistent and subject him to an unconstitutional sentence; (2) the trial court applied the wrong standard of proof, clear and convincing evidence, in dismissing his motion for post-conviction relief; and (3) the trial court erred in limiting the appellate record to those pleadings and orders necessary for review by the appellate court. According to Mississippi Code Annotated section 99-39-5(1), the grounds for granting post-conviction relief are stated as follows:

(a)That the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi;
(b) That the trial court was without jurisdiction to impose sentence;
(c) That the statute under which the conviction and/or sentence was obtained is unconstitutional;
(d) That the sentence exceeds the maximum authorized by law;
(e) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
(f) That there exists biological evidence secured in relation to the investigation or prosecution attendant to the petitioner’s conviction not tested, or, if previously tested, that can be subjected to additional DNA testing, that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.
(g) That his plea was made involuntarily;
(h) That his sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody;
(i) That he is entitled to an out-of-time appeal; or
(j) That the conviction or sentence is otherwise subject to collateral attack upon any grounds of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy.

¶ 8. Furthermore, “[pjost-conviction relief is not granted upon facts and issues which could or should have been litigated at trial or on appeal.” Williams v. State, 669 So.2d 44, 52 (Miss.1996). Because the three new issues do not fall within the purview of the grounds for post-conviction relief, and they could have been raised in Ryals’s first motion for post-conviction relief, we find that Ryals is procedurally barred from raising them now. Therefore, we affirm the judgment of the trial court dismissing Ryals’s motion for post-conviction relief because it is both time-barred and successive-writ barred.

¶ 9. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT.

      . Mississippi Code Annotated section 99-39-23(6) states that:
      The order as provided in subsection (5) of this section or any order dismissing the petitioner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article. Excepted from this prohibition is a motion filed under Section 99-19-57(2), raising the issue of the convict's supervening mental illness before the execution of a sentence of death. A dismissal or denial of a motion relating to mental illness under Section 99-19-57(2) shall be res judicata on the issue and shall likewise bar any second or successive motions on the issue. Likewise excepted from this prohibition are those cases in which the petitioner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are those cases in which the petitioner has filed a prior petition and has requested DNA testing under this article, provided the petitioner asserts new or different grounds for relief related to DNA testing not previously presented or the availability of more advanced DNA technology-


author: MYERS, P.J.,

text:
    Tyshunna Cooper ROSS, Appellant v. STATE of Mississippi, Appellee. Tyshunna Cooper Ross, Appellant v. State of Mississippi, Appellee.
    Nos. 2009-KA-00796-COA, 2009-KA-00797-COA.
    Court of Appeals of Mississippi.
    June 15, 2010.
    Rehearing Denied Oct. 26, 2010.
    Certiorari Denied Jan. 20, 2011.

      Leslie S. Lee, Jackson, Phillip Broad-head, Oxford, Bentley E. Conner, Flora, attorneys for appellant.
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
    Before MYERS, P.J., BARNES and MAXWELL, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. Tyshunna Cooper Ross was indicted on one count of gratification of lust and one count of sexual battery by a Madison County grand jury. The indictments stemmed from the thirty-seven-year-old Ross’s relationship with a twelve-year-old boy, A.B. The State alleged that on July 4, 2007, Ross committed sexual battery by having sexual intercourse with A.B. and that she had touched his penis for the purpose of gratifying her lust.

¶ 2. Ross was subsequently convicted on both counts in the Circuit Court of Madison County. The trial court sentenced Ross to fifteen years on the gratification of lust count and forty years on the sexual battery count, with the sentences to be served consecutively. The sentencing order provided that the final thirty-seven years of the sentence would be suspended, with five years’ supervised probation. Ross was also ordered to register as a sex offender. Aggrieved by her conviction and sentence, Ross appeals, arguing that: the jury’s verdict is against the overwhelming weight of the evidence; the evidence was insufficient to support the convictions; and she received constitutionally ineffective assistance of counsel at trial. Finding no error, we affirm Ross’s convictions and sentences.

FACTS

¶ 3. At trial, A.B., then fourteen years of age, testified for the State. A.B. stated that he knew Ross through her daughter, who A.B. had “dated” for some period of time in the sixth grade. Some time later, Ross had bought beer for A.B. and his friends on two separate occasions. Then, on July 3, 2007, Ross invited A.B. and two of his friends, both fourteen years old, to “hang out” with her at the home she shared with a roommate. Ross’s home was located approximately one quarter mile from A.B.’s. Ross told the boys that she was locked out, so they sat out on the carport. Ross smoked cigarettes and drank vodka, both of which she shared with the boys. A.B. consumed four or five “shots” of vodka. At Ross’s request, the party then went into the nearby woods, where they continued to smoke and drink. A.B. testified that while in the woods, he and Ross kissed and he fondled Ross’s breasts. When it started to get dark, C.D., one of A.B.’s friends, sneaked Ross into his bedroom through an outside window. Ross stayed with C.D. for an hour or so before calling her boyfriend, Tom Carter, who picked Ross up from C.D.’s house. Later that evening, A.B., C.D., and two girls aged twelve or thirteen sneaked into A.B.’s bedroom, where they “talked and kissed” for about forty-five minutes before A.B.’s mother abruptly entered the bedroom at approximately 11:00 p.m. and took the other children home.

¶ 4. The next day, July 4, 2007, A.B.’s parents were hosting a party at their home. Ross and A.B. made contact around noon, either by telephone or text message. Later that day, Ross told A.B. that her boyfriend had beaten her and that she needed a place to stay. A.B. offered to let Ross stay with him. She arrived a short time later, at approximately 8:30 p.m., and A.B. helped her sneak into the home through a laundry room window. A.B. and Ross went to A.B.’s bedroom, and A.B. locked the bedroom door. Ross asked for a drink, and A.B. gave her a beer from a case he had taken from his parents’ party and hidden in a gun cabinet in his bedroom.

¶ 5. A.B. recounted what happened next as follows:

Q. And once y’all are in your room and she was drinking beer, what happened then?
A. We sat on the floor and talked a little bit. I don’t — I don’t specifically remember what we talked about, but I know we’re — we were about to go to sleep and then we started kissing and touching and stuff.
Q. Okay. And where was she touching you?
A. All over me.
Okay. <D
Including my penis. >
On top of your clothes or beneath your clothes? eO
Beneath, ma’am. >
Q. Under your underwear or on top of your underwear?
A. Under my underwear.
Q. And what — what happened after that?
A. Well, one thing lead to another. Basically, the inti — the intimacy grew and we — there was a condom sitting on my nightstand, I guess would say—
Q. And what was that doing there and how did it get there?
A. Well, I — I had gotten it from a guy that I didn’t even know. He just gave it to me and—
Q. When? How long had you had it?
A. Two or three weeks maybe.
Q. Okay.
A. And it was just sitting there because I didn’t know — well, I just had it sitting out. And from then on I kind of — I grabbed it and I held it up and she looked at it and she' kind of nodded yes and there— there wasn’t really verbal, it was more nodding and shaking of the head.
And so I went to the bathroom and put that on. And when I came back she was sitting on my bed, and my bed at that the time squeaked really bad so I was like, you know, you can’t do it on the bed. It squeaked really bad, so we proceeded on the floor and she laid down—
Q. Did she have her clothes on or off at that time?
A. She had a shirt on and she had her scrubs on and she pulled those down about to her knees or ankles.
Q. Were your clothes on or off?
A. I pulled my pajama bottoms down to my knees.
Q. And then what happened?
A. And then we proceeded to have sexual intercourse.
Q. On the floor?
A. Yes, ma’am.
Q. And were you on top or bottom or—
A. I was on top.
Q. Okay. And what, if anything, was she saying to you at this time?
A. She just kept repeating “F me,” “F me” in my ear.
Q. And how long do you think that lasted?
A. Ten, [fifteen] minutes, maybe.
Q. And then at — what—did you ejaculate at that time?
A. Yes, ma’am.
Q. And you had a condom on?
A. Yes, ma’am.
Q. Okay. What did you do at that point?
A. I went to the bathroom and tried to flush it down the toilet and it didn’t go down. It came right back up and I grabbed it and put it in the trash can.
Q. All right. And then what did you do?
A. I went — I was about to go to bed. I laid [sic] down and I was just about to doze off and I see the door open and the light flicker on, and it was my mom and Tyshunna through [sic] the cover over her head and just her ham was hanging out.
Q. Okay. And after your mom came in what did you do?
A. My mom called — called me out and she, like, “What are you doing?” Because the night before I had two friends of mine, girls and guys, that were in my room, and so she — she thought it was a girl my age because just her hair was showing. And so I proceeded to say, “Mom, you don’t really understand.” We went downstairs and she said, like, “I can’t believe you did this again.”

A.B. then went downstairs with his mother, but Ross initially stayed in the bedroom. A.B. testified that after he explained to his mother who he had been with, he denied that anything sexual had occurred.

¶ 6. A.B.’s mother testified that she had heard a noise coming from A.B.’s room, and that after the events of the previous night, she decided to investigate. She noticed that A.B.’s door was closed and locked, but she was able to open the door with a toothpick. When she turned on the lights, A.B.’s mother saw A.B. and a woman in the bed. The woman covered her face with the sheets, but A.B.’s mother observed that the woman was wearing scrubs and was not the same girl A.B. had been with the previous night. A.B.’s mother and A.B. went downstairs, where A.B. told his mother that she “didn’t understand” and that the woman “had no place to go.” After his mother — believing at this time that the woman was a teenager — expressed doubts, A.B. averred that the woman had been beaten by her boyfriend and had been “kicked out.” A.B. then called for Ross to come downstairs. A.B.’s mother recognized Ross and stated, “I can’t believe it’s you.” Ross then apologized and averred that she had been locked out by her roommate, who was out on a date, and had no place to go. Ross stated that she had no one she could call to come and get her, but she would try to contact her roommate. A.B.’s mother described Ross as acting “like she was kind of in a trance” and stated that Ross “really didn’t say much” and “didn’t act like an adult.” A.B.’s mother offered Ross the guest bedroom for the night, and she brought A.B. to sleep in his parents’ bedroom. At approximately 2:00 a.m., Ross made contact with her roommate, who came and picked Ross up.

¶ 7. A.B. initially denied that anything of a sexual nature had occurred between him and Ross. On July 5, he and his family traveled to Chattanooga, Tennessee, to stay with his aunt and uncle. They returned to Madison the following Sunday. On Monday, A.B.’s mother was contacted by a friend who told her that Ross had given their sons alcohol on July 3. A.B.’s mother took A.B. to the Madison Police Department to give a statement regarding the events of that day. During the interview, A.B. told the investigating officer that after drinking the vodka on July 3, he and C.D. had kissed Ross and fondled her breasts. A.B. also stated that on July 4, while he was in bed with Ross, she had touched his penis and he had fondled her breasts; however, A.B. denied that the two had sexual intercourse. A.B. was then sent for an interview at a Child Advocacy Center (CAC), which was conducted on July 12. At the CAC interview, A.B. again did not disclose the sexual intercourse. On July 13, however, A.B. told his mother the “full truth.” She then brought A.B. back to the Madison Police Department for a second interview, where he recounted substantially the same facts that he testified to at trial. An audio recording of the second police interview was introduced into evidence and played for the jury.

¶ 8. Detective Mike Magee of the Madison Police Department also testified for the State. He stated that he had interviewed Ross after her arrest. Ross had admitted that she had provided A.B. and the other boys with beer and vodka, as well as having been present in A.B.’s bedroom on the night of July 4. She stated that this was because she had been locked out by her roommate and was hiding from her abusive boyfriend. Ross had denied that any sexual contact had occurred with A.B. on either July 3 or July 4. Ross stated, instead, that she had fallen asleep in A.B.’s bed after drinking the beer A.B. had given her. Ross’s version of the events was, apparently, that A.B. had gotten into the bed with her while she was asleep and that no sexual contact had occurred.

¶ 9. Martin McRae also testified for the State. McRae stated that he had known Ross since 1995. McRae had picked Ross up from her roommate’s house on July 4, and he had taken Ross to a fireworks display that evening. McRae had intended to return Ross to the roommate’s home; however, Ross asked to be taken to what she claimed was the home of a woman she knew. McRae then dropped Ross off near A.B.’s home. McRae also testified that he had helped Ross out in the past and had let her stay with him, but she did not tell him that she had no place to go on the night of July 4.

¶ 10. After the State rested its case, Ross did not testify and offered no witnesses in her defense. Ross was subsequently convicted and sentenced on both counts, and she appeals from that judgment.

DISCUSSION

¶ 11. Ross argues in her first issue on appeal that the jury’s verdict is against the overwhelming weight of the evidence and was legally insufficient to support the conviction. See Bush v. State, 895 So.2d 836, 843-44 (¶¶ 16,18) (Miss.2005). In her final issue, she argues that she received ineffective assistance of counsel at trial.

1. Weight of the Evidence

¶ 12. “The jury is charged with the responsibility of weighing and considering conflicting evidence, evaluating the credibility of witnesses, and determining whose testimony should be believed.” Smith v. State, 3 So.3d 815, 818 (¶ 13) (Miss.Ct.App.2009) (quoting Ford v. State, 737 So.2d 424, 425 (¶ 8) (Miss.Ct.App.1999)). The supreme court has discussed appellate review of the weight of the evidence supporting a jury’s verdict, stating:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.... However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Bush, 895 So.2d at 844 (¶ 18) (internal citations and quotations omitted). The court has cautioned, however, that a challenge to the weight of the evidence “is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)).

¶ 13. Ross argues that the jury’s verdict is against the overwhelming weight of the evidence because of A.B.’s initial denials, his staggered disclosure of the sexual contact with Ross over several interviews, and certain inconsistencies in his testimony. Ross also argues that certain facts suggest innocence, particularly that two condom wrappers were found in A.B.’s room, of which he only identified one as “his.” She further argues that A.B.’s description of the physical act of intercourse was physically impossible or improbable.

¶ 14. Regarding A.B.’s initial denials, we have previously noted that “[i]t is common for a victim of sexual abuse to be embarrassed and to initially deny that the crimes occurred.” Smith v. State, 907 So.2d 389, 395 (¶17) (Miss.Ct.App.2005). A.B. testified that he initially denied sexual contact with Ross because he was afraid of what would happen and that he feared he would “get in trouble.” He also testified that Ross had called him on the day after the two were discovered and warned him that if he disclosed the sexual contact, she would be prosecuted and imprisoned. A.B. also stated that during the initial police and CAC interviews, he was embarrassed by the events and felt uncomfortable with the interviewers. Other than the initial denials, the inconsistencies or apparent contradictions in A.B.’s account cited by Ross are relatively minor and of little import. The foremost is A.B.’s initial statement to authorities that both he and another boy, C.D., had kissed Ross and fondled her breasts in the woods on July 3. A.B. subsequently recanted this statement and stated that only he had sexual contact with Ross on July 4; A.B. testified that he had feared that if he had been the only victim, he would be blamed for what had happened. We note, also, that A.B. was intoxicated during the events of July 3. Moreover, although the other boy apparently denied any sexual contact with Ross, he was older than A.B. and had sneaked Ross into his own bedroom on July 3, after the group left the woods.

¶ 15. Ross also argues that evidence at trial pointed to her innocence. In particular, she cites her unsworn statement from the police interview, where she denied any sexual contact. Ross also cites to the fact that two condom wrappers were recovered from AB.’s garbage. According to his mother’s testimony, A.B. had identified one of the condom wrappers as “his,” the wrapper from the condom he used while having sexual intercourse with Ross. The provenance of the second condom wrapper was never explained at trial; A.B. was not questioned regarding it, and his mother testified that A.B. had not told her where it had come from or who it had belonged to. Ross argues that the presence of two condom packages suggest that the condoms were used together on July 3, when A.B. and C.D. had two girls in the bedroom.

¶ 16. After reviewing the facts and arguments as we have detailed them above, we find these arguments without merit. We find little evidence weighing against the verdict; Ross did not testify and her arguments regarding the condom wrappers rely upon supposition and possibilities. Moreover, Ross’s statement failed to sufficiently explain many of her actions and was contradicted by the testimony of the State’s witnesses, whereas A.B.’s testimony was corroborated by the circumstances in which the two were discovered. Furthermore, Ross admitted to giving A.B. alcohol, to sneaking into his bedroom, and to being in bed with A.B. when the two were found together. With little evidence weighing against conviction, the verdict in this case hinged on the credibility of the State’s witnesses, particularly A.B. and his mother. “The jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Nix v. State, 8 So.3d 141, 146 (¶ 26) (Miss.2009) (quoting Mohr v. State, 584 So.2d 426, 431 (Miss.1991)). We note also that at trial Ross brought all of the significant credibility issues we have discussed above to the attention of the jury, but the jury nonetheless found A.B.’s testimony credible. A.B.’s testimony was not inherently implausible, nor was it so seriously impeached that no reasonable juror could find it credible. We therefore find that the jury’s verdict is not against the overwhelming weight of the evidence. This issue is without merit.

2. Sufficiency of the Evidence

¶ 17. The supreme court has stated that “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Bush, 895 So.2d at 843 (¶ 16) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The supreme court cautioned, however, that:

this inquiry does not require a court to “ ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The supreme court continued:

Should the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render. However, if a review of the evidence reveals that it is of such quality and weight that, “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient.

Id. (internal citations omitted).

¶ 18. The supreme court has recently stated:

An individual may be found guilty of rape on the uncorroborated testimony of the prosecuting witness, where the testimony is not discredited or contradicted by other credible evidence. See Withers v. State, 907 So.2d 342, 353 [(¶32)] (Miss.2005) (persons accused of statutory rape “may be found guilty on the uncorroborated testimony of a single witness.”) (citation omitted); Killingsworth v. State, 374 So.2d 221, 223 (Miss.1979) (“while it is true that a conviction for rape may rest on the uncorroborated testimony of the person raped, that testimony should always be scrutinized with caution.”); Dubose v. State, 320 So.2d 773, 774 (Miss.1975) (“the testimony of the victim of a rape may be sufficient to support a guilty verdict where the victim’s testimony is neither contradicted nor discredited by other evidence or by surrounding circumstances.”); Blade v. State, 240 Miss. 183, 188, 126 So.2d 278, 280 (1961) (the testimony of the prosecutrix in a rape case “does not need corroboration.... ”).

Parramore v. State, 5 So.3d 1074, 1077-78 (¶ 12) (Miss.2009).

¶ 19. We find that the evidence as we have discussed it above, viewed in a light most favorable to the prosecution, is sufficient to support the jury’s verdicts. A.B.’s testimony regarding the fondling and sexual intercourse was sufficiently credible, and it was corroborated by the circumstances in which he and Ross were discovered. This issue is without merit.

3. Ineffective Assistance of Counsel

¶ 20. “In order to prevail on the issue of whether his defense counsel’s performance was ineffective, [the appellant] must prove that his counsel’s performance was deficient and that he was prejudiced by counsel’s mistakes.” Kinney v. State, 737 So.2d 1038, 1041 (¶ 8) (Miss.Ct.App.1999) (citing Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Additionally, an appellant is required to “allege both prongs of the above test with specific detail.” Coleman v. State, 979 So.2d 731, 735 (¶ 15) (Miss.Ct.App.2008) (citing Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990)).

¶ 21. “The adequacy of counsel’s performance, as to its deficiency and prejudicial effect, should be measured by a ‘totality of the circumstances.’ ” Taylor v. State, 682 So.2d 359, 363 (Miss.1996). The test is to be applied to the overall performance of counsel. Bigner v. State, 822 So.2d 342, 346 (¶ 24) (Miss.Ct.App.2002). “There is a strong, yet rebuttable, presumption that the actions by the defense counsel were reasonable and strategic.” Taylor, 682 So.2d at 363.

¶ 22. Ross argues that her counsel at trial was ineffective, but she cites to few specific examples of alleged ineffectiveness. She notes that defense counsel made no pretrial motions or objections during the trial, called no witnesses, and offered no jury instructions. Yet, as we have said, the actions of trial counsel are presumed to be reasonable and strategic; the burden falls upon Ross to overcome this presumption. Id.

¶ 23. With one exception, Ross has failed to substantiate these arguments by stating what witnesses should have been called or what motions, objections, or instructions should have been made or offered and by showing how those failures impacted her trial. Ross’s only fully substantiated allegation of ineffective assistance of counsel concerns a bench conference and recess called by the trial court during her attorney’s cross-examination of A.B. The bench conference was held outside the hearing of the court reporter and was not transcribed in the record. Ross alleges that, during the bench conference, the trial judge sua sponte limited cross-examination of the victim on the subject of the condom wrapper. Ross argues that her attorney was ineffective in failing to object to the trial court’s instruction on the record or to proffer the relevant testimony. She further argues that, had the court not limited cross-examination, A.B. would have admitted that both condoms were used during “sexual activity” in his bedroom on July 3. The State argues in response that Ross’s allegations are unsupported in the record, and that record is entirely silent regarding the reason for the bench conference. The State concludes, instead, that considering the length of the cross-examination of A.B., “one may reasonably surmise that a call of nature occasioned [the recess].”

¶ 24. We agree. Ross’s argument is substantiated only by allegations in her brief. Nothing in the record suggests that the trial court limited cross-examination or that A.B. would have testified that the condoms were used during “sexual activity” on July 3. In fact, although Ross repeatedly alleges that “sexual activity” occurred between the children in A.B.’s bedroom on night of July 3, this is also unsupported in the record. Instead, A.B. testified that, while in his bedroom, he, C.D., and the two girls had “talked and kissed. That was about it.” Moreover, had the trial court limited cross-examination during an off-the-record bench conference, as Ross alleges, she could have supplemented the record on appeal under Rule 10 of the Mississippi Rules of Appellate Procedure. Ross has not done so. Nothing in the record indicates that the trial court limited cross-examination or that trial counsel was ineffective in failing to make an objection or proffer. Nor does the record show that Ross was prejudiced by these errors of counsel, if they occurred. This issue is without merit.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF COUNT I, GRATIFICATION OF LUST, AND SENTENCE OF FIFTEEN YEARS, AND COUNT II, SEXUAL BATTERY, AND SENTENCE OF FORTY YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THIRTY-SEVEN YEARS SUSPENDED AND FIVE YEARS’ SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.

      . To protect the identity of minor victims of sexual abuse, we substitute fictitious initials for their names.

      . Ross’s children apparently lived with their father most of the time.

      . For example, Ross argues that A.B. was inconsistent regarding whether there was one other boy in the woods on July 3 or two, whether she or A.B. had physically manipulated A.B.’s penis into Ross’s vagina during the sexual act, and whether Ross had wiped herself with a towel or whether A.B. had wiped his hands with it after touching her. She also argues that A.B.’s testimony that both he and Ross had pulled their pants to the knees during the sexual act, as it was described, was improbable or physically impossible.


author: ISHEE, J.,

text:
    Cearic A. BARNES, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CA-00705-COA.
    Court of Appeals of Mississippi.
    June 22, 2010.
    Rehearing Denied Sept. 28, 2010.
    Certiorari Denied Jan. 20, 2011.

      Wanda Turner-Lee Abioto, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. This appeal is from the Circuit Court of Lincoln County’s summary dismissal of Cearic Barnes’s motion for post-conviction relief.

FACTS

¶ 2. A Lincoln County grand jury indicted Barnes and Jerrard T. Cook for the offense of capital murder. On June 10, 2003, pursuant to an agreement between the parties, the indictment was amended, and Barnes pleaded guilty to the reduced charge of murder. One week later, Barnes was sentenced to life in the custody of the Mississippi Department of Corrections (MDOC).

¶ 3. On February 17, 2006, Barnes timely filed a motion for post-conviction relief. An amended motion for post-conviction relief was filed on October 31, 2006. The circuit judge summarily dismissed Barnes’s amended motion for post-conviction relief. The order was signed April 5, 2007, and filed on April 25, 2007.

¶ 4. Aggrieved, Barnes appeals the dismissal and raises the following assignments of error:

I. He received ineffective assistance of counsel;
II. His guilty plea was an unknowing, involuntary, and unintelligent waiver of fundamental rights;
III. The circuit court committed reversible error by stating the incorrect county in the amendment to the original indictment;
IV. The circuit court should have informed him of his right to appeal his sentence;
V. The circuit court failed to provide a proper reconstructed transcript of the plea proceedings;
VI. He should have been afforded a competency hearing prior to his sentencing; and
VII. He is entitled to an evidentiary hearing on his motion for post-conviction relief.

Finding no error, we affirm.

DISCUSSION

I. Ineffective Assistance of Counsel

¶ 5. In order to prove ineffective assistance of counsel, Barnes must prove that: (1) his counsel was deficient and (2) that deficiency prejudiced Barnes’s defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). After reviewing the record before us, we cannot say that Barnes’s counsel provided ineffective assistance.

¶ 6. Barnes asserts that: his counsel failed to adequately investigate the facts; he failed to raise procedural and factual issues; and he allowed Barnes to enter an involuntary plea of guilty. The burden of proof lies with Barnes to show that his counsel was deficient and that this deficiency prejudiced his defense. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). But there is a strong but rebuttable presumption that counsel’s conduct falls within a broad range of reasonable professional assistance. Gilliard v. State, 462 So.2d 710, 714 (Miss.1985). Also, this Court bases its decisions as to whether counsel’s efforts were effective on the totality of the circumstances surrounding each case. Waldrop v. State, 506 So.2d 273, 275 (Miss.1987).

¶ 7. Because there is a strong presumption that counsel’s performance was reasonable, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The Mississippi Supreme Court has recognized in the context of post-conviction relief that where a party offers only his affidavit, his ineffective-assistance-of-counsel claim is without merit. Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990); see also Smith v. State, 490 So.2d 860, 860 (Miss.1986). Because Barnes has failed to meet his initial burden of proof, to establish deficient performance, this issue is without merit.

II. Involuntary Plea

¶ 8. Barnes asserts that his guilty plea was involuntary because it was the product of coercion from his counsel. He claims that his fear of being sentenced to death, along with the fact that he was merely eighteen years old at the time of trial, made it impossible for him to knowingly, voluntarily, and intelligently enter a plea of guilty.

¶ 9. “By entering a guilty plea, a defendant waives certain constitutionally guaranteed protections. Specifically, a defendant waives the right to a jury trial, right to confront his accusers, and the right against compelled self-incrimination.” Daughtery v. State, 847 So.2d 284, 287 (¶ 5) (Miss.Ct.App.2003) (citation omitted). It is the trial court’s responsibility to ensure that the plea is voluntary by determining whether the defendant understands the meaning and consequences of the plea. A plea induced by fear, violence, deception or improper inducements is not voluntary. URCCC 8.04(A)(3).

¶ 10. Because Barnes has complained of his counsel’s advice, we note that a defense attorney has an obligation to fairly, even if pessimistically, inform the client of the likely outcome of a trial based upon the facts of the case. If, after assessing the case, counsel feels as if his client should take a plea, he is obligated to inform his client, no matter how grim the assessment may be. Daughtery, 847 So.2d at 287 (¶ 6) (citation omitted).

¶ 11. Despite this obligation, defense counsel may only urge a defendant to follow a particular course. Counsel may not accept a plea on the defendant’s behalf. Id. at 287 (¶ 7) (citation omitted). Even if Barnes accepted the plea bargain entirely because he was afraid of the death penalty, the plea would nonetheless be voluntary. Accordingly, this issue is without merit.

III. Amendment to Original Indictment

¶ 12. Barnes contends that his guilty plea to murder must be set aside because the original indictment, which charged him with capital murder, was amended to say “In the Circuit Court of Adams County” as opposed to “In the Circuit Court of Lincoln County.” In all other respects, the order properly lists Lincoln County. This is a clear example of a harmless scrivener’s error. Errors in a particular case that are unimportant and insignificant be deemed harmless, thereby not requiring the automatic reversal of the conviction. Tran v. State, 962 So.2d 1237, 1247 (¶ 37) (Miss.Ct.App.2007) (quoting Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Barnes pleaded guilty to a murder committed in Lincoln County and his guilty plea took place in Lincoln County. Barnes has failed to show how this error has prejudiced him in any way or how the circuit court committed reversible error. This issue is without merit.

IV. Circuit Court Obligation

¶ 13. Barnes next asserts that he was denied his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution because the circuit court failed to inform him that he could appeal the sentence imposed on him as a result of his guilty plea despite the fact that he could not appeal the plea itself. While it is true that a defendant may appeal the sentence resulting from a guilty plea independently of the plea itself, there is no corresponding requirement that the circuit court notify the defendant of that right during the plea process. Elliott v. State, 993 So.2d 397, 399 (¶ 10) (Miss.Ct.App.2008). Accordingly, we find Barnes’s argument on this issue is without merit.

V. Reconstruction and Misplacement of the Record

¶ 14. Barnes asserts that the circuit court erred in failing to provide a transcript of the plea proceedings. We find this argument to be without merit.

¶ 15. Barnes contends that it is his responsibility to provide the court with a proper record which contains the documents to support his claims. We agree. Once it was determined that the record had been misplaced, this Court issued an order to the circuit clerk of Lincoln County to reconsti’uct the file. The clerk complied with the order and gave proper notice of the completion of the record. If Barnes was dissatisfied with the record that was prepared by the clerk, he had an opportunity to amend it. This Court has previously held that, “the burden falls upon an appellant to ensure the record contains sufficient evidence to support his assignments of error on appeal.” Minor v. City of Indianola, 909 So.2d 146, 148 (¶ 4) (Miss.Ct.App.2005).

VI. Competency Hearing

¶ 16. Barnes asserts that he was denied due process of law by the contravention of Rule 9.06 of the Uniform Rules of Circuit and County Court. There is nothing in the record indicating Barnes raised the issue of competency in the circuit court. It is well-settled law that issues not raised below will not be decided on appeal. Stringer v. State, 279 So.2d 156, 158 (Miss.1973). Because Barnes failed to raise this issue with the court below, this assignment of error is procedurally barred on appeal.

VII. Evidentiary Hearing

¶ 17. In his final assignment of error, Barnes claims the circuit court erred when it failed to grant him an evi-dentiary hearing on his motion for post-conviction relief. “If the motion is not dismissed at a previous state of the proceeding, the judge, after the answer is filed and discovery, if any, is completed, shall, upon a review of the record, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice shall require.” Miss.Code Ann. § 99-39-19(1) (Rev.2007).

¶ 18. Barnes once again asserts that the circuit court failed to review the record as is statutorily required. Although it is unclear as to where the original record currently is located, there is little doubt that the circuit court did review the record when dismissing Barnes’s motion for post-conviction relief. A review of the circuit court’s order dismissing the motion for post-conviction relief indicates that the circuit court reviewed Barnes’s amended motion because the order responds directly to the record and the motion itself. This issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.


text:
    STROUD CONSTRUCTION, INC., Appellant v. Bill WALSH and Cindy Walsh, Appellee.
    No. 2009-CA-00725-COA.
    Court of Appeals of Mississippi.
    July 20, 2010.
    Rehearing Denied Oct. 19, 2010.
    Certiorari Denied Jan. 20, 2011.

      Cecil Maison Heidelberg, Susan Spur-lock Copeland, Ridgeland, attorneys for appellant.
    Robert T. Higginbotham, Jr., Jackson, attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Stroud Construction, Inc. (Stroud) appeals the judgment of the Circuit Court of Madison County, which held that Bill and Cindy Walsh (collectively the Walshes) were not in breach of the contract they had entered into with Stroud to build their home. Finding no error, we affirm.

FACTS

¶ 2. In May 2000, the Walshes bought a lot in the Lake Caroline Subdivision in Madison, Mississippi. Shortly thereafter, the Walshes began to accept bids for the construction of a new home on the lot. Stroud submitted an initial offer of $950,458 to the Walshes. The Walshes rejected the offer because it exceeded the amount of money that they had budgeted for the construction of their new home. Subsequently, Stroud submitted a second offer of $752,145, which the Walshes accepted. The Walshes and Stroud executed a written construction contract. The contract required that Stroud build a luxury home for the Walshes on lot eight of the Lake Caroline Subdivision. Pursuant to the contract, the Walshes agreed to pay Stroud for the actual costs associated with the construction of the house as well as a builder’s fee of $52,000 and a cost fee of 1.25 percent.

¶ 3. The construction of the house began in June 2001. Pursuant to the terms of the contract, the house was to be completed within one year. In July 2001, Stroud was issued a building permit. The building permit reflected that the total value of all of Stroud’s work would be $525,000.

¶ 4. The Walshes moved into the house in August 2002. Before moving into the house, the Walshes complained to Stroud that the roof leaked. After moving in, the roof continued to leak. The Walshes sent a list of problems with the house, including the leaky roof, to Stroud. Stroud attempted numerous times to repair the leaky roof, but it continued.

¶ 5. According to the Walshes and their expert witness, Larry Sistrunk, a Mississippi licensed residential builder, Stroud constructed the Walshes home in a poor manner. The Walshes and Sistrunk asserted that Stroud’s lack of workmanship, failure to supervise the subcontractors and the construction in a reasonable manner, failure to complete the project in a timely manner, failure to pay the subcontractors timely, and the exorbitant overcharges resulted in damages to the Walshes. It is undisputed in the record that the Walshes consistently paid Stroud’s invoices. The Walshes contend that it was only after Stroud exceeded their contract price and failed to repair the leaky roof that they refused to pay any additional money to Stroud. The Walshes assert that Stroud fraudulently lowered the bids from his subcontractors and then misrepresented to them that he could complete the project for $752,145.

¶ 6. At trial, the Walshes claimed that Stroud had overcharged them for some of the work performed by Stroud’s subcontractors. According to the record, Stroud spent nearly $86,444.80 on framing labor— nearly $60,000 over Stroud’s original contract price. Altogether, the Walshes paid more than $80,000 in excess of the contract price. Stroud’s delays in the construction of the house also caused the Walshes to accumulate an additional $28,174.54 in interest on the construction loan. Consequently, Stroud exceeded the agreed upon contract price for the Walshes’ house.

¶ 7. As a result, the Walshes refused to pay any additional money to Stroud. Stroud filed its complaint on December 3, 2003, seeking an additional $127,321.81 from the Walshes. The Walshes then filed a counterclaim asserting that Stroud was negligent and in breach of contract. Following a trial, the jury found in favor of the Walshes and awarded them $90,000 in damages. Stroud filed a notice of appeal with the circuit court. Stroud now appeals, asserting that:

I. The trial court erred in denying Stroud’s request for a directed verdict or, in the alternative, a peremptory instruction declaring the construction contract to be a cost-plus contract;
II. The trial court committed error in refusing Stroud’s motion in limine to require that the contract be referred to and characterized as a cost-plus contract and simultaneously preclude references that the Walshes attempted to mis-char-acterize the contract as something else; and
III. The jury verdict in favor of the Walshes is against the overwhelming weight of the evidence.

Finding no error, we affirm.

STANDARD OF REVIEW

¶ 8. The standard of review regarding the denial of a directed verdict and a peremptory instruction is de novo. White v. Stewman, 932 So.2d 27, 32 (¶ 10) (Miss.2006). The supreme court stated:

This Court will consider the evidence in the light most favorable to the appellee nonmovant, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant movant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standards of review, however, are predicated on the fact that the trial judge applied the correct law.

Id. A motion in limine “should be granted only when the trial court finds two factors are present: (1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury.” McNeill v. State, 919 So.2d 77, 82-83 (¶ 15) (Miss.Ct.App.2005).

DISCUSSION

¶ 9. The central issue relating to all of Stroud’s assignments of error is whether the trial court should have ruled as a matter of law that the contract at issue was a cost-plus contract; therefore, the trial court should not have permitted the admission of parol evidence to explain the contract terms and the agreement of the parties.

¶ 10. “[I]t is firmly established that when the language of a contract is ambiguous parol evidence may be admitted to clarify the meaning of the ambiguity.” Lange v. City of Batesville, 972 So.2d 11, 18 (¶ 8) (Miss.Ct.App.2008). In the present case, the contract between Stroud and the Walshes was ambiguous because the contract terms and the agreement of the parties were not clearly defined. Nowhere in the contract was- the term “estimated price” or “cost-plus” defined. Also, Bill struck the portion of the contract that stated the entire and final agreement between the parties was contained in the written contract.

¶ 11. Stroud also argues several reasons why the contract was a cost-plus contract, namely:

(1) Stroud documented his file and invoices and provided detailed bills to the Walshes which was only necessary if the Walshes were paying the costs of the construction and the labor. In other words, if the total price were fixed or capped, the Walshes did not need monthly invoices with all the details as to the costs of the materials and labor; (2) Bill Walsh admitted at trial he knew they were responsible for paying construction costs, overhead, and a builder’s fee; and (3) Cindy Walsh testified that in the very beginning stages of construction she became concerned about the cost of framing exceeding the amount estimated by Stroud, and began to ask Stroud to provide time sheets for the framers. If [Cindy] thought she was not responsible for any amount over the estimate price in the contract, then the framing overages should have been of no concern to her.

¶ 12. Stroud contends that because the motion in limine was denied, the Walshes attempted to vaguely characterize the contract as a fixed-price contract, but they were never required to identify the fixed price, thereby confusing the jury as evidenced by its verdict.

¶ 13. The evidence that Stroud sought to exclude was relevant and admissible. The negotiations between the parties clearly reflect that both parties believed that the Walshes’ house would be completed for a total of $752,154. Stroud’s application for a building permit confirmed that he understood that his contribution to the project would cost $525,000. Consistent with his understanding of the contract, which incorporated their negotiated and agreed upon price to build, Bill struck out the portion of the contract which said that everything before then was incorporated into that one document. Thus, it is clear that Stroud understood that the negotiated price would include the items paid for directly by the Walshes. The trial court did not abuse its discretion in allowing this evidence to be considered; thus, this issue is without merit.

¶ 14. Stroud asserts that the jury verdict in favor of the Walshes is against the overwhelming weight of the evidence. Stroud contends that because it is undisputed that the Walshes did not pay the final invoices, the jury’s only choice was to find in favor of the Walshes; thus, Stroud contends that such a finding is against the overwhelming weight of the evidence.

¶ 15. “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Lamartiniere v. Jones, 915 So.2d 1112, 1114 (¶ 8) (Miss.Ct.App.2005). Considering all the evidence, the trial court did not err in denying Stroud’s motion for a directed verdict or, alternatively, a peremptory instruction; therefore, this issue is -without merit.

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

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


author: KING, C.J,

text:
    Gary C. NICHOLSON, Appellant v. INTERNATIONAL PAPER COMPANY, INC., a Self Insurer, Appellee.
    No. 2009-WC-00943-COA.
    Court of Appeals of Mississippi.
    Aug. 10, 2010.
    Rehearing Denied Jan. 18, 2011.

      Bryant Donlevy Guy, Jackson, attorney for appellant.
    Richard Mack Edmonson Jr., Courtney Anne Titus, attorneys for appellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   KING, C.J,

for the Court:

¶ 1. In 1998, Gary C. Nicholson developed eczema on his hands and feet that was later attributed to his work environment. Nicholson allegedly realized that his eczema was work related in 2004. Thereafter, Nicholson filed a petition to controvert. Pursuant to the two-year statute of limitations, the administrative judge (AJ) dismissed Nicholson’s claim as time-barred. Nicholson appealed the dismissal to the Commission and then to the Circuit Court of Pearl River County without success. Aggrieved, Nicholson timely filed his notice of appeal and disputes that his claim was time-barred. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1988, Arizona Chemical, a subsidiary of International Paper Company, Inc. hired Nicholson to manufacture glue, which encompassed using chemicals such as acid and ammonia. Ten years later, Nicholson developed a blistering, itching, peeling rash on his feet. He first sought treatment from the company’s doctor, Dr. D.L. Bolton. Dr. Bolton diagnosed that Nicholson’s condition was a result of concrete poisoning. Nicholson did not agree with Dr. Bolton’s diagnosis because he did not work with concrete. In his deposition, Nicholson testified that he had assumed that meant that his condition was caused by chemicals. Nicholson testified that he had reported his symptoms to Arizona Chemical’s safety personnel, and his supervisor completed an accident report.

¶ 3. Unsatisfied with Dr. Bolton’s diagnosis, Nicholson sought a second opinion from Dr. George Farber. Dr. Farber treated Nicholson from 1998 to 2006, diagnosing Nicholson with eczema. Because of Nicholson’s outbreaks, Dr. Farber issued several work-release forms for Nicholson over the years that excused him from work for weeks at a time. During those times, Nicholson received payments under a short-term disability insurance policy, and his medical bills were covered by his group health insurance policy.

¶ 4. In 2004, Nicholson sought treatment from Dr. Farber for yet another outbreak. According to Nicholson, he did not realize that his condition was work related until the 2004 outbreak. On December 14, 2004, Nicholson filed a claim for workers’ compensation benefits, and the claim was denied.

¶ 5. Due to the slow economy, the Arizona Chemical plant closed in 2005, leaving Nicholson unemployed and without health insurance. On June 14, 2006, Nicholson filed a petition to controvert and argued that he had received a compensable, work-related injury in December 2004. In his petition, Nicholson further explained that his eczema first developed in 1998, and he notified his employer of the injury at that time. In its answer, International Paper argued that Nicholson’s condition did not arise out of his employment, and his petition to controvert was barred by the two-year statute of limitations.

¶ 6. The AJ found inconsistencies between Nicholson’s testimony at the deposition and his testimony during the eviden-tiary hearing. For instance, during the evidentiary hearing, Nicholson claimed that he did not know that his condition was work related until 2004. However, Nicholson stated in his deposition that he had assumed that his condition was work related in the 1990s. The AJ also took issue with Nicholson’s claim that he did not ask Dr. Farber what caused his injuries because Nicholson saw Dr. Farber seventy-five times between 1998 and 2005.

¶ 7. Nicholson’s medical records contained an “Attending Physician’s Statement” created in 2000 by Dr. Michael Weil, who worked with Dr. Farber. In that report, Dr. Weil indicated that Nicholson’s condition was work related. Nicholson denied seeing the report. Nicholson’s medical records also contained a “Certification of Health Care Provider” form that was completed by Dr. Farber in April 2005. In this form, Dr. Farber stated that he had treated Nicholson since 1998 for a work-related condition. Dr. Farber further explained that Nicholson’s work boots aggravated his condition, and Nicholson responded well to treatment, which required restrictions from work.

¶ 8. The AJ reasoned that:

[i]n light of the length and frequency of [Nicholson’s] treatment with Dr. Farber, the fact that his condition always improved when he was off work such that he routinely returned to work unrestricted, and Dr. Farber’s consistent, clear, and unequivocal opinions about [Nicholson’s] diagnoses. Although Dr. Farber was not deposed in this cause, his records and reports between 1998 and 2006 do not reveal he had any reservations about the nature of [Nicholson’s] condition. It unfortunately appears more credible that, as [Nicholson] testified in his deposition, he did not file a Petition to Controvert until 2006 because it was not until the year before that he was released from employment, his group health policy was cancelled, and his medical expenses were not covered.

Based on this evidence, the AJ ruled that Nicholson knew or should have known that his injuries were work related in 1998; Nicholson had two years from this date to file a petition to controvert; and his failure to do so barred his claim for workers’ compensation benefits.

¶ 9. Thereafter, Nicholson appealed the AJ’s decision to the full Commission. The Commission affirmed the dismissal of the claim on June 24, 2008. Nicholson then appealed to the Circuit Court of Pearl River County, and the circuit court affirmed the dismissal on May 7, 2009. Aggrieved, Nicholson timely filed his notice of appeal, arguing that his petition was not time-barred.

ANALYSIS

¶ 10. When considering workers’ compensation appeals, this Court gives great deference to the Commission because the Commission is the ultimate finder of fact. Whirlpool Corp. v. Wilson, 952 So.2d 267, 271 (¶ 15) (Miss.Ct.App.2006). Thus, we will not disturb the Commission’s decision on appeal absent a finding that the decision was “unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Id. Issues of law, including statute of limitations, are reviewed de novo. Jordan v. Pace Head Start, 852 So.2d 28, 30 (¶ 4) (Miss.Ct.App.2002).

¶ 11. Nicholson contends that his claim was not time-barred for two reasons: (A) International Paper is estopped from asserting statute of limitations as a defense, and (B) the statute of limitations was tolled in his case.

A. Estoppel

¶ 12. Nicholson argues that International Paper is estopped from asserting the statute of limitations as a defense because it failed to comply with notice requirements pursuant to Mississippi Code Annotated section 71-3-67 (Rev.2000). Conversely, International Paper argues that Nicholson’s eczema is not work related; thus, the duty to report never arose.

¶ 13. Section 71-3-67 requires the employer, if self-insured, to file an injury report with the Commission within ten days (1) in the event of death following an injury, (2) an injury which causes loss of time in excess of five days, or (3) an injury that resulted or is likely to result in a permanent disability or serious disfigurement. Miss.Code Ann. § 71-3-67. But the failure of an employer to file notice, alone, is not sufficient to require estoppel. See Prentice v. Schindler Elevator Co., 13 So.3d 1258, 1259 (¶ 7) (Miss.2009) (citing Martin v. L & A Contracting Co., 249 Miss. 441, 162 So.2d 870, 873 (1964)).

¶ 14. Employers have been found to be estopped from raising the defense of statute of limitations when they did not report the injury to the Commission (1) where the injury sustained was fatal, (2) where the employer made misrepresentations to the claimant regarding its coverage, which the claimant relied upon, and (3) where the employer paid compensation to the claimant. See, e.g. id. at 1261 (¶¶ 8-9) (finding the employer estopped from relying bn the defense of statute of limitations where the employer failed to report the injury and made misrepresentations to the claimant, which the claimant relied upon); Holbrook ex rel. Holbrook v. Albright Mobile Homes, Inc., 703 So.2d 842, 844 (¶¶ 5-7) (Miss.1997) (finding the employer estopped from relying on the defense of statute of limitations where the employer failed to report a fatal termination of injury and misrepresented the existence of its coverage); Martin, 249 Miss. at 448, 162 So.2d at 873 (finding the employer estopped from relying on the defense of statute of limitations where the employer failed to report the injury and voluntarily paid the claimant compensation).

¶ 15. In this case, Nicholson’s eczema was not a fatal injury; there is no evidence of any misrepresentations or misconduct on behalf of International Paper; and International Paper did not pay Nicholson any compensation. The alleged failure to report, alone, does not estop International Paper from raising its defense of statute of limitations; this issue is without merit.

B. Statute of Limitations

¶ 16. Nicholson maintains that, until 2004, he was unaware that his injury was work related; thus, his 2006 petition to controvert was timely filed. Conversely, International Paper argues that Nicholson knew or should have known in 1998 that his injury was work related; thus, his petition to controvert is barred by the two-year statute of limitations.

¶ 17. Mississippi Code Annotated section 71-3-85(1) (Rev.2000) provides, in pertinent part, that:

No claim for compensation shall be maintained unless, within thirty (30) days after the occurrence of the injury, actual notice was received by the employer or by an officer, manager, or designated representative of an employer.... Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made and no application for benefits filed with the commission within two years from the date of the injury or death, the right to compensation therefor shall be barred.

However, the statute of limitations is tolled in the event that “the claimant’s reasonably diligent efforts to obtain treatment yield no medical confirmation of compensa-ble injury.” Georgia Pac. Corp. v. Taplin, 586 So.2d 823, 827 (Miss.1991). Then, the statute of limitations begins to run at the time the claimant knows or should have known the nature of his injury. Id.

¶ 18. In this case, Nicholson’s eczema developed in 1998. Between 1998 and 2005, Dr. Farber issued several work-release forms, taking Nicholson off of work for weeks at a time because of his condition. Based on Dr. Weil’s “Attending Physician’s Statement,” the doctors had determined that Nicholson’s condition was. work related as early as 2000.

¶ 19. In his deposition, Nicholson was asked whether his employer knew that he was claiming a work-related injury back in the 1990s, and Nicholson responded, ‘Tes.” When asked why he did not file his petition to controvert until 2006, Nicholson said: “Well, for one thing, I didn’t know nothing bout [sic] the plant was leaving [sic]. I just was working, and I had no concern about filing a petition.”

¶ 20. In addition, Nicholson testified to the following during the evidentiary hearing:

Q. I am trying to understand how were you able to treat [sic] that long in that clinic and none of those doctors ever indicated to you that they thought your condition was work-related up until 2005? That would have been seven years that you treated [sic] in that clinic before they told you that?
A. Well, for one thing, I didn’t ask them what caused it, I was just being treated. I went to the company doctor and he said that it look[s] like I had concrete poisoning, so I assumed that maybe it was chemical related. I don’t know.
Q. Where else would you have come in contact with these sort of chemicals other than Arizona Chemical?
A. Nowhere.

(Emphasis added). Nicholson’s testimony shows that he had knowledge that his eczema could have been work related back in 1998.

¶21. In a similar case, the claimant first complained of allergy problems due to her work environment in 1993. Cooper v. Miss. Dep’t of Rehab. Serv., 937 So.2d 51, 52 (¶ 2) (Miss.Ct.App.2006). She sought treatment for her condition in 1995. Id. In 1998, her condition grew worse, causing her to seek further medical treatment, and her physician diagnosed her impairment as work related. Id. Thereafter, the claimant filed a petition to controvert in 1998, and the Commission dismissed her claim as time-barred. Id. at (¶¶ 3-4). On appeal, the claimant argued that, until her diagnosis in 1998, she was unaware that her condition was work related. Id. at 53 (¶ 9). However, this Court found that “[the claimant] was aware of her condition, its disabling character, and its alleged relationship to her workplace. Even if the physical effects got worse over time, that does not alter that it was known to be disabling in 1995.” Id. at (¶ 17). We find the same to be applicable in Nicholson’s case.

¶ 22. The Commission found that Nicholson’s condition was not latent. His testimony showed that he thought his condition was work related back in 1998, and his medical records revealed that doctors had diagnosed his condition as work related by 2000. Although Nicholson claimed that he did not ask doctors what caused his condition, the Commission found that Nicholson knew or should have known that his eczema was related to his contact with chemicals at work. He had two years from that time to file a petition to controvert, and his failure to do so barred his claim for workers’ compensation benefits. Because there is substantial evidence supporting the Commission’s decision, we find that this argument is without merit and affirm.

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

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