author: ROBERTS, J.,

text:
    Edward Lamont NEAL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-02198-COA.
    Court of Appeals of Mississippi.
    March 31, 2009.

      George T. Holmes, Jackson, Steven Carl Wallace, Justin Taylor Cook, attorneys for Appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. A jury sitting before the Lowndes County Circuit Court found Edward Lamont Neal guilty of felony escape. The circuit court sentenced Neal to five years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Neal appeals. However, Neal is represented by the Mississippi Office of Indigent Appeals. One of Neal’s attorneys has filed a Lindsey brief in which he asserts there was no error in the circuit court proceedings. Having fulfilled our obligation to examine the record to determine whether there are meritorious issues, we have found none. Accordingly, we find no error and affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. As of December 2006, Neal, then seventeen years old, was on probation for felony malicious mischief. Neal’s probation officer, Christian Campbell, testified that probationers under her supervision were obligated to report to her on either the first or second Thursday of each month. Campbell further testified that Neal did not report the first Thursday in December 2006, so he was required to report to her on the second Thursday of that month, which would have been Thursday, December 14, 2006.

¶3. On that date, Campbell spoke to officers with the Columbus Police Department. Those officers told Campbell that they needed to speak with Neal. At approximately 4:30 p.m., Neal called Campbell. Neal told Campbell that he would not be able to pay his fee that day. Neal then asked whether he could meet with Campbell the following day. When Neal told Campbell that he was in the parking lot of the probation office, Campbell told Neal “since he was already there just to come on inside and [she] would talk to him at that time.” Neal complied.

¶ 4. According to Campbell: Campbell explained that she already knew what the police wanted to speak to Neal about, but she wanted to hear Neal’s version to determine whether he was being truthful with her. Campbell further explained that, after hearing Neal’s version, she was not satisfied that he was being truthful. Campbell then asked Neal whether he had been using drugs. Neal responded that he would test positive for marijuana because he had used it two weeks earlier.

[Neal] came into the office and I asked him if he had been to the police department that morning. The police department had contacted me about [Neal]. They needed to talk to him. And I wanted to make sure that he had followed those directions and he said he had. And I asked him briefly what that was about and we talked about that briefly.

¶ 5. Another probation officer, Nathan Blevins, was also in the room with Campbell and Neal. According to Campbell, Neal “proceeded to tell [them] situations that did not add up to what [they] already knew.” Campbell decided that they needed to take Neal into custody. Campbell placed Neal in handcuffs, and Blevins went to his office to get his car keys. While Blevins was gone, Neal ran out of Campbell’s office. Neal continued out the front door of the probation office. Campbell and Blevins attempted to catch Neal, but they were unsuccessful because it was dark outside, and by Campbell’s description, Neal could run “like a deer.”

¶ 6. The Columbus Police Department and the Lowndes County Sheriffs Department set up a perimeter and deployed K-9 units, but their combined efforts were fruitless. Neal evaded capture. Newspapers ran articles about Neal, and news stations featured him on the “Crimestop-pers” alerts. Members of Campbell’s office went by Neal’s house ten to fifteen times in the next two to three days. They spoke with Neal’s extended family, but they did not apprehend Neal until someone called in and informed authorities where they could find Neal. Neal was finally recaptured in Lowndes County on January 16, 2007.

¶ 7. Neal went to trial on November 14, 2007. The prosecution called Campbell as its first and only witness during their casein-chief. After the prosecution rested, Neal took the stand. According to Neal, Campbell told him she would arrest him if he committed another felony. Neal testified that Campbell did not arrest him or place him in handcuffs. Neal further testified that Blevins was never in the room with them. Neal explained that after he talked with Campbell, he simply walked out of the building and across the parking lot. After being confronted with earlier testimony in which Neal testified that he had been placed in handcuffs, Neal explained that Campbell did handcuff him, but she removed the handcuffs before he walked out of the building. Neal concluded his testimony and rested his case.

¶ 8. During the prosecution’s rebuttal, the prosecution called Blevins. Blevins corroborated Campbell’s testimony and disputed Neal’s testimony. That is, Blevins testified that: Campbell placed Neal in handcuffs; the handcuffs were behind Neal’s back; and Neal was not free to leave. Blevins further testified that he went to get his car keys, and while he was gone, Neal ran. According to Blevins, Neal ran past his mother, who said, “Son, don’t run.” Blevins testified that he chased Neal, but he was unable to catch him because Neal was “real fast.” As previously mentioned, the jury found Neal guilty of felony escape. Neal appeals.

ANALYSIS

¶ 9. In Lindsey, the Mississippi Supreme Court detailed the process that must be followed when appellate counsel for an indigent criminal defendant concludes there are no arguable issues on appeal. To be precise, the supreme court stated as follows:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(l)-(4),(7); see also [Smith v.] Robbins, 528 U.S. [259,] 280-81, 120 S.Ct. 746, 145 L.Ed.2d 756 [ (2000) ] (stating that “counsel’s summary of the case’s procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.”).
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey, 939 So.2d at 748(¶ 18) (internal citations and footnotes omitted).

¶ 10. Neal’s attorney complied with the requirements of Lindsey. Neal’s attorney filed a brief indicating that he “diligently searched the procedural and factual history of this criminal action and scoured the record” and found no arguable issues for appeal. Neal’s attorney specifically asserts that he examined: (1) the reasons for Neal’s arrest and the circumstances surrounding it, (2) any possible violations of Neal’s right to counsel, (3) the entire transcript and record, (4) the circuit court’s rulings, (5) possible prosecutorial misconduct, (6) all of the jury instructions, (7) all exhibits, whether admitted or not, (8) possible misapplication of the law in sentencing, (9) the indictment and all pleadings in the record, and (10) possible ineffective assistance of counsel claims. Neal’s attorney further stated that he informed Neal that he found no arguable issues and that he advised Neal of his right to file a pro se brief. Neal did not file a pro se brief.

¶ 11. After our own thorough review of the record, we find no issues that would require supplemental briefing. Accordingly, we affirm the circuit court’s judgment of conviction and sentence.

¶ 12. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF FELONY ESCAPE AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS TO RUN CONSECUTIVELY TO THE SENTENCE IMPOSED IN 2006-0289-CR1 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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

      . In Lindsey v. State, 939 So.2d 743, 748(¶ 18) (Miss.2005), the Mississippi Supreme Court modified the procedure that appellate counsel must follow when counsel determines that there are no appealable issues within the record.


source: Caselaw Access Project

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

license: Public Domain

text:
    Brian Keith CARREIRO, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-CA-02280-COA.
    Court of Appeals of Mississippi.
    March 31, 2009.
    Derek L. Hall, Jackson, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. On September 17, 2004, Brian Keith Carreiro pled guilty in the Circuit Court of Lincoln County to one count of exploitation of a child and one count of touching a child. Carreiro filed a motion for post-conviction relief seeking to have his guilty pleas vacated. Following an evidentiary hearing on the issues raised by Carreiro, the trial court denied his motion. Aggrieved, Carreiro now appeals. On appeal, Carreiro echos those issues raised before the trial court. Specifically, Carreiro argues that: (1) he received ineffective assistance of counsel; (2) the trial court lacked subject matter jurisdiction; (3) his guilty pleas were not knowingly and voluntarily entered; (4) there was no factual basis for his guilty pleas; and (5) his sentences violate the United States and Mississippi Constitutions. Finding that the record of the guilty plea colloquy is devoid of any factual basis that would sustain Carreiro’s guilty pleas, we reverse and the trial court’s denial of post-conviction relief and remand the case for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY ¶ 2. In 2004, Carreiro worked for Steve and Daphne Smith in a domestic capacity in exchange for room and board. At the time of the incident, Steve was a prominent elected public official in the area. During the summer of 2004, Carreiro accompanied the Smith family on vacation in Gulf Shores, Alabama. While there, Daphne borrowed Carreiro’s camera. Once the roll was full, Daphne had the film developed and discovered two photographs of her seven-year-old daughter, Sara. The pictures were of Sara’s buttocks in a swimsuit, and the pictures appeared to be taken while she was sleeping. Daphne showed the pictures to Steve, and he immediately took Carreiro back to Mississippi. Carrei-ro was questioned by law enforcement and gave a statement in which he admitted to taking the photographs.

¶ 3. Carrerio was subsequently indicted on August 3, 2004, for exploitation of a child under Mississippi Code Annotated section 97-5-33(2) (Rev.2006) (count one) and for touching a child for lustful purposes under Mississippi Code Annotated section 97-5-23 (Rev.2006) (count two). .On September 17, 2004, Carreiro pled guilty to the aforementioned offenses in the Circuit Court of Lincoln County. He was sentenced the same day to twenty years in the custody of the Mississippi Department of Corrections, with five years to serve and the remaining fifteen years to be served on post-release supervision on count one. On count two, he was sentenced to serve fifteen years in the custody of the MDOC, with five years to serve and the remaining ten years to be served on post-release supervision. The sentences in count one and count two were ordered to ■ run consecutively to each other. Furthermore, the trial court ordered that upon release from incarceration Carreiro would be barred from entering Lincoln, Pike, and Walthall counties.

¶ 4. On May 23, 2006, Carreiro filed a motion for post-conviction relief in the Circuit Court of Lincoln County. The trial court granted Carreiro’s request for an evidentiary hearing, but the court ultimately found his motion to be without merit. Following the denial of his motion, Carreiro appealed that judgment.

ANALYSIS

¶ 5. The standard of review this Court must employ upon a review of a trial court’s denial of a motion filed pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, Mississippi Code Annotated sections 99-39-1 to -29 (Rev.2007) is well settled and has been aptly stated by the supreme court as follows:

“When reviewing a lower court’s decision to deny a petition for post [-] conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo.” Lambert v. State, 941 So.2d 804, 807 [ (¶ 14) ] (Miss.2006) (quoting Brown v. State, 731 So.2d 595, 598 [ (¶ 6) ] (Miss.1999); see also Bank of Miss. v. S. Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)).

Callins v. State, 975 So.2d 219, 222(¶8) (Miss.2008).

WHETHER THERE WAS A FACTUAL BASIS FOR CARREIRO’S GUILTY PLEAS.

¶ 6. Because we find resolution of Car-reiro’s fourth assignment of error to be dispositive, we choose not to address the remaining issues.

¶ 7. Carreiro’s indictment charged him with violating sections 97-5-33(2) and 97-5-23. Specifically, count one stated, in pertinent part, that Carreiro:

on or about April 15, 2004[,] or June 3, 2004[,] or between said dates, in Lincoln County, Mississippi, and within the jurisdiction of this court, did willfully, unlawfully, and feloniously photograph on [sic] [Sara], a child under the age of eighteen years, engaging in sexually explicit conduct, to-wit: lascivious exhibition of the genital and/or pubic area of the said [Sara]....

Additionally, count two alleged that:

on or about April 15, 2004[,] or June 3, 2004[,] or between said dates, in Lincoln County, Mississippi, and within the jurisdiction of this court, the said [Carrei-ro][,] a male person over the age of eighteen years, did willfully, unlawfully[,] and feloniously, for the purpose of gratifying his lust or indulging his depraved licentious sexual desires, touch the buttocks of one [Sara], a female child under the age of sixteen years, with his hand....

At the conclusion of his plea hearing, Car-reiro pled guilty to the charges against him. The transcript of Carreiro’s guilty pleas and sentencing encompasses nine pages of the record, and it does not include a recitation of the facts and circumstances under which Carreiro committed the above crimes. The only references that even touch on a factual basis whatsoever for the pleas during the colloquy was the trial court’s inquiry regarding whether Carrei-ro’s attorney explained the elements of the crimes to which he was pleading guilty to and whether Carreiro believed the State could prove his guilt beyond a reasonable doubt. Carreiro responded affirmatively to both questions. Carreiro argues that the lack of an explicit factual basis for the crimes from the record invalidates his guilty pleas.

¶ 8. “Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea.” URCCC 8.04(A)(3). A defendant can establish a factual basis for his plea of guilty simply by pleading guilty; however, his plea “must contain factual statements constituting a crime or be accompanied by independent evidence of guilt.” Hannah v. State, 943 So.2d 20, 26-27(¶ 16) (Miss.2006). In other words, “a factual basis is not established by the mere fact that a defendant enters a plea of guilty.” Id. Rather, the record must contain those facts which are “sufficiently specific to allow the court to determine that the defendant’s conduct was within the ambit of that defined as criminal.” Lott v. State, 597 So.2d 627, 628 (Miss.1992) (quoting United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir.1984)). Finally, this Court is not limited to review of a defendant’s plea transcript when determining if a factual basis existed for his guilty plea, but we may review the record as a whole for evidence of such. Boddie v. State, 875 So.2d 180, 183(¶ 8) (Miss.2004).

¶ 9. Additionally, our federal counterparts echo the import of establishing a factual basis for a defendant’s guilty plea as established by federal precedent and Rule 11 of the Federal Rules of Criminal Procedure. Similar to Rule 8.04, Rule 11 of the Federal Rules of Criminal Procedure requires a trial judge, “[b]efore entering judgment on a guilty plea, ... [to] determine that there is a factual basis for the plea.” Fed.R.Crim.P. 11(b)(3). In line with Rule 11, the Fifth Circuit Court of Appeals stated that “ ‘implicit in the district court’s acceptance’ of a guilty plea is its ‘determination that [the defendant’s] conduct satisfied every legal element’ of the charged crime.” United States v. Marek, 238 F.3d 310, 315 (5th Cir.2001). In Kessee, the defendant was charged with conspiracy to distribute cocaine and eventually pled guilty; however, on appeal, Kessee argued that there was no factual basis for his plea because, although he admitted to selling cocaine at some unidentified time to some unidentified person, such a confession did not support his plea or the charge of conspiracy in his indictment. Id. at 339. The Fifth Circuit Court of Appeals vacated Kessee’s guilty plea and reminded the district courts that they “should compare ‘(1) the conduct to which the defendant admits with (2) the elements of the offense charged in the indictment’ ” so as to vindicate the purpose of Rule 11. Id. at 340 (quoting Marek, 238 F.3d at 315). The same reasoning stands true for our Rule 8.04(A)(3). With this in mind we move to our analysis of Carreiro’s plea.

A. Count One

¶ 10. As stated above, Carreiro pled guilty to violating sections 97-5-33(2) and 97-5-23. Section 97-5-33(2) states that “[n]o person shall, by any means including computer, photograph, film, video tape[,] or otherwise depict or record a child engaging in sexually explicit conduct or in the simulation of sexually explicit conduct.” In the indictment charging Carreiro, the State alleged that the “sexually explicit conduct” in which Sara was engaging while Carreiro photographed her was a “lascivious exhibition of the genital and/or pubic area.” Section 97-5-31 provides that such conduct is one definition of “sexually explicit conduct.” Miss.Code Ann. § 97-5-31(a)(v) (Rev.2006). The question this Court must tackle is whether there is a factual basis in the record to support such a charge and, ultimately, Carreiro’s guilty plea.

¶ 11. Sections 97-5-33(2) and 97-5-31(a)(v) criminalize the taking of a photograph of a child while that child is “engaging in ‘lascivious exhibition of the genital and/or pubic area.’ ” Engage is defined as “[t]o employ or involve one’s self; to take part in; to embark on.” Black’s Law Dictionary 528 (6th ed.1990). Lascivious is defined as “[c]onduct which is wanton, lewd, and lustful.” Id. at 882. Therefore, the above sections of the Mississippi Code Annotated make it illegal to photograph a child who is taking part in or who has involved himself or herself in the wanton, lewd, and lustful exhibition of the genital and/or pubic area. Such language implies, if not explicitly states, that the child must be actively and purposefully involved in lascivious conduct.

¶ 12. In his statement in which Carrei-ro admitted to taking the photographs, he-admitted to positioning a blanket that was covering Sara and taking pictures of her clothed buttocks while she slept. He also indicated that while he was doing this he. was sexually aroused. The facts within such a confession, while despicable, do not fall within the ambit of that defined as criminal by section 97-5-88(2). The statement suggests that Sara was dressed in a bathing suit and asleep at the time Carrei-ro took the photographs. Our review of the photographs taken by Carreiro verify this characterization. As such, we find that it is an impossibility for such a set of. facts to constitute a violation of 97-5-33(2) as Sara was not engaging in any conduct, lascivious or otherwise, other than sleep--ing.

B. Count Two

¶ 13. We reach the same result as to count two. Section 97-5-23 states, in part, that:

[a]ny person above the age of eighteen' (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch[,] or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child’s consent, ... shall be guilty of a felony.

Miss.Code Ann. § 97-5-23(1). There is nothing in the record of the guilty plea hearing to indicate or suggest that he touched Sara so as to violate the statute above during the date range provided in the charging indictment. In fact, expanding our view to his statement, which was only admitted during the evidentiary hearing, Carreiro stated that he only positioned the covers so that he could see Sara’s buttocks. Hence, he never touched Sara.

¶ 14. The State argues that the record does indeed contain evidence of Carreiro touching Sara for lustful purposes. At Carreiro’s evidentiary hearing on his motion for post-conviction relief, it was revealed that during the course of the investigation, Sara was interviewed at a children’s advocacy center. According to a police report in the record, while there she stated that Carreiro “once rubbed her chest while they were laying [sic] on the couch at her house.” Additionally, during the evidentiary hearing on Carreiro’s motion, Carreiro’s trial counsel testified that Daphne, Sara’s mother, was going to testify that she had seen Carreiro touch Sara’s buttocks at some point. However, this information, even if accepted as complete truth, does not satisfy the elements of section 97-5-23 or the indictment as charged.

¶ 15. As for Daphne’s expected testimony, the fact that she had seen Carreiro touch Sara’s buttocks at some unidentified point in time does nothing to save the State’s conviction under count two of Car-reiro’s indictment. The indictment alleged that Carreiro touched Sara’s buttocks during an approximate month and a half period of time during the summer of 2004. Daphne’s expected testimony, as preserved in the record, does not place Carreiro’s alleged touching within this time period. Furthermore, it does not explain in what context the alleged touching occurred so as to satisfy the mens rea element of the crime. There was no evidence that Car-reiro’s alleged touching was not innocently done or was for the purposes of “indulging his depraved, licentious sexual desires.” Finally, Sara’s allegation that Carreiro touched her chest suffers from the same defects as Daphne’s expected testimony, but in addition, it does not track the charged language from count two. That is, the indictment charged Carreiro with an unlawful touching of Sara’s buttocks, and Sara’s claim was that he touched her chest.

¶ 16. A defendant waives his constitutional right to remain silent when he pleads guilty. It is not asking too much of a trial judge to require the defendant to inform the court of exactly what he, the defendant, did that constitutes the crime that the defendant is pleading guilty to before the court accepts the guilty plea and sentences the defendant to serve a term of imprisonment. Should a defendant fail or refuse to admit sufficient facts for the trial judge to conclude that the defendant committed the crime to which he was indicted of and desmes to plead guilty to, the court must either refuse to accept the guilty plea or fully satisfy the requirements of an Alford best interest plea as detailed by the United States Supreme Court in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

¶ 17. Furthermore, the requirement of a factual basis for a defendant’s plea is not a formality of the plea process, but it is required as part of a “constitutionally valid and enforceable decision to plead guilty.” Carter v. State, 775 So.2d 91, 98(¶ 28) (Miss.1999) (quoting Lott, 597 So.2d at 628). Circuit courts of this state would do well not to gloss over this requirement of the tñal court to ensure that a factual basis for a defendant’s plea exists in the record. While it seems to go without saying, we remind circuit courts of the simple rule mentioned in Marek: the trial court should compare the conduct to which the defendant admits with the elements of the offense charged in the indictment. Without a match, there is no factual basis for the plea, and as such, the guilty plea should not be accepted. Therefore, although this Court condemns Carreiro’s actions as deplorable, we are bound to uphold the law of this state. The facts preserved in the record simply do not establish, by any burden of guilt, that Carreiro violated the statutes charged in the indictment. As such, we cannot find that a factual basis existed for his guilty pleas. Therefore, we are forced to reverse the trial court’s denial of Carrei-ro’s motion for post-conviction relief, set aside his guilty pleas, and remand his case to the active trial docket of the Circuit Court of Lincoln County. Given our resolution of this issue, Carreiro’s remaining issues are moot.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

KING, C.J., IRVING, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY LEE AND MYERS, P.JJ. MAXWELL, J., NOT PARTICIPATING.

CARLTON, J.,

Concurring in Result Only:

¶ 19. I agree that the circuit court was in error in denying the motion for post-conviction relief, that the appellant should be allowed to withdraw his guilty pleas, and that the case should be reversed and remanded to the active criminal docket.

¶20. I respectfully disagree with the majority’s language that there was no factual basis presented to the Court during the hearing on the motion for post-conviction relief. Carreiro admitted that he entered the sanctity and privacy of the bedroom of this seven-year-old girl while she slept, with the intent to take pictures for the lascivious purposes of the exhibition of her private areas and buttocks. During the hearings on the motion for post-conviction relief, the trial judge ensured that the guilty pleas were knowing and intelligent and that Carreiro understood the consequences of his pleas. The trial judge was further informed that Carreiro wrote in the evidentiary hearing statement, which was part of the record on the post-conviction relief motion as Exhibit P-4, and that Carreiro took photographs that were also made a part of the record before the court as Exhibit P-3. The trial judge inquired of Carreiro as follows:

Q: Were you taking that photograph because you were aroused by her genital area? You know what genital area means, correct?
A: Yes, sir.
Q: Do you know what the genital area is?
A: Yes, sir.

¶ 21. Carreiro also confirmed that his attorney discussed a defense strategy and articulated that strategy. Carreiro also testify that he had reviewed discovery with his attorney and after such review that he was satisfied that the State could provide beyond reasonable doubt that he was guilty. He also testified that his attorney went over the indictment and the elements of the crime with him and that he understood the elements of the crime. Carreiro also signed a plea petition acknowledging that he understood his rights; that his plea was willing, knowing, and voluntary; and that he was satisfied with his attorney. His attorney also signed the plea petition certifying that he had advised his client of his rights. It is unfortunate that this information was not part of the discussion at the plea hearing.

¶ 22. Carreiro provided quite a detailed confession outlining his intent for exposing her buttocks. The photographs contained in the record reflect that the photographs were not just of the child’s buttocks. The photographs were a closeup of her bottom exposing her buttocks and also the portion of her bathing suit bottom that covered her anal area and her vulva. In prosecution Exhibit A, some of the child’s skin from her labia majora is visible on the side of her bathing suit bottom. In the instant case, Carreiro’s confession provides the following details:

The girl in the pictures B (referring to PE B), well; she a bit young to do much with. But I wanted to at least see how she felt next to me at night. Liked to play with her butt & rub it against my manhood. In picture 2, she is so hot, wanted to just bed her down & get her smell all over me. I wanted to put my manhood in between her cheeks & get off. Wanted to feel her all over....

¶ 23. As stated above, the pictures referred to by Carreiro were made part of the record at the time of the motion for post-conviction relief was filed. This Court in Blackwell v. State, 915 So.2d 453, 456(¶ 12) (Miss.Ct.App.2005) explained that sexually explicit conduct as defined in section 97-5-33(2) does not require actual or simulated sexual intercourse since sexual conduct is not an element of the charged crime of child exploitation. The Mississippi Supreme Court has held that the court is not limited to the transcript of the guilty plea hearing; rather, the court is allowed to “review the record as a whole.” Boddie v. State, 875 So.2d 180, 183(¶ 8) (Miss.2004) (citing Gaskin v. State, 618 So.2d 103, 106 (Miss.1993)).

¶24. Mississippi Code Annotated section 97-5-33(2) (Rev.2006) provides the following:

No person shall, by any means including computer, photograph, film, video tape or otherwise depict or record a child engaging in sexually explicit conduct or in the simulation of sexually explicit conduct.

¶25. Mississippi Code Annotated section 97-5-31 (Rev.2006) defines the terms used in the relevant code sections dealing with child exploitation. Mississippi Code Annotated section 97-5-31 (a) defines a child as any individual who has not attained the age of eighteen. Mississippi Code Annotated section 97-5-31(b)(v) defines sexually explicit conduct as actual or simulated lascivious exhibition of the genitals or pubic area of any person.

¶ 26. The evidentiary hearing on the post-conviction relief motion revealed that a factual basis for this guilty plea in this case existed (but was not made part of the underlying plea colloquy) because Carreiro admitted to photographing the child engaging in sexually explicit conduct with actual or simulated lascivious exhibition of the genitals or pubic area of the child. At the post-conviction relief evidentiary hearing the trial judge had before him in evidence the photograph taken by Carreiro of the child’s buttocks area displaying a portion of her bathing suit covering her anus and vulva. However, at the original underlying plea colloquy, the record contained no evidence, and neither the defendant nor the prosecution provided a factual basis of the guilty plea in the record for the trial court to review.

¶ 27. With respect to count two, the majority states that the record fails to contain evidence of any touching. I agree with the majority to the extent that a review of Carreiro’s confession shows that he did not admit to directly touching the skin of the child, and a review of the evidence before the court reflects that apparently no witnesses were present to provide any direct eyewitness testimony of actually seeing him touch or not touch the child while moving her bed blankets for her picture pose. However, I respectfully submit that based on the limited evidence presented during the evidentiary hearing on the motion for post-conviction relief that sufficient evidence exists from which a jury might logically infer from his confession, from the child’s photograph of her buttocks and anal/vulva area in a swimsuit, and from other circumstantial evidence which may possibly be offered, that Car-reiro touched the child in her bed when he moved her blanket to get the pose he desired for his picture to satisfy his lustful desires. See, e.g., Montgomery v. State, 515 So.2d 845, 848 (Miss.1987). I further respectfully submit that based upon the limited evidence presented during the post-conviction relief motion hearing that sufficient evidence exists from which a jury could infer that Carreiro’s touching was in fact for the purpose of “indulging his depraved, licentious sexual desires.” Note, Carreiro admitted in his confession to entering the child’s room while she was asleep, and he admitted to removing the child’s blanket that was on her so he could photograph her for his lustful purposes.

¶ 28. A review of the elements in count two, for the offense of lustful touching of a child under the age of sixteen, aids in the discussion of my analysis of this issue. Mississippi Code Annotated section 97-5-23(1) (Rev.2006) makes it a crime for “[a]ny person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch, or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child’s consent ... shall be guilty of a felony....”

¶ 29. Carreiro’s confession explains that:

[He] positioned the covers just right so [he] could get a good look at her butt. When [he] was taking these pictures, [he] had thoughts of undressing her and climbing into bed with her. Thinking how she would feel next to [him]. Thought about rubbing her all over esp. her butt. Wanted to feel her butt against my manhood, & move her up & down against my manhood until [he] got off.

¶ 30. To violate section 97-5-28(1), the statute does not require that the child be engaged in any lascivious conduct or that the defendant touch any particular part of the child. The crime of lustful touching of a child under the age of sixteen is met when a person above the age of eighteen handles, touches, or rubs such a child with any part of the defendant’s body for lustful purposes or depraved, licentious sexual desires. Such a touching may be proven through direct or circumstantial evidence. Sexual offenses against a child are not likely to be perpetrated in the light of day in public places or in view of witnesses. In a case where a child is asleep, circumstantial evidence may be the only evidence available other than any statement or evidence provided by the defendant.

¶ 31. Based on the foregoing, I disagree with the majority as to its conclusions on count one and count two. However, I would, as the opinion does, remand the case to the active trial docket of the Circuit Court of Lincoln County.

LEE AND MYERS, P.JJ., JOIN THIS SEPARATE OPINION.

      . As a result of the sensitive nature of the underlying facts of this appeal, the names of all members of the Smith family have been changed in an effort to protect their privacy.

      . It can be safely assumed that the alleged touching that Daphne was expected to testify to did not occur at the point in time Carreiro took the photographs of Sara.


author: KING, C.J.,

text:
    Virty Lee THAMES a/k/a Vert a/k/a Birddog, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-01573-COA.
    Court of Appeals of Mississippi.
    March 31, 2009.

      Thomas Quitman Brame, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., LEE, P.J., and CARLTON, J.
   KING, C.J.,

for the Court.

¶ T. In July 2006, Virty Lee Thames was arrested as a result of his involvement in a drug buy. On January 30, 2007, Thamés was indicted by a Newton County grand jury for the sale of cocaine. A jury found Thames guilty of the sale of cocaine on August 10, 2007. Thames was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections pursuant to Mississippi Code Annotated section 41 — 29—139(a)(1) (Rev.2005).

¶ 2. Thames filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a motion for a new trial. The trial court denied Thames’s motion. Aggrieved, Thames appeals and raises the following issues: (1) the jury verdict was the result of bias and passion and was contrary to the credible evidence adduced at trial and the law of this state; (2) trial counsel’s performance amounted to ineffective assistance of counsel; and (3) Thames received an unfair trial because of cumulative errors in the investigation of this case and at trial.

FACTS

¶ 3. On February 15, 2006, the Mississippi Bureau of Narcotics (MBN), conducted a controlled drug buy using a confidential informant, Donna Keel. Keel, a former drug addict, was hired to assist the MBN in building a case against Otha Wheaton, an alleged drug dealer and Thames’s employer. Keel had been used in prior cases as a confidential informant and had been beneficial to previous drug investigations.

¶4. On the aforementioned day, MBN agents placed a concealed video and audio recorder on the counter in Keel’s trailer. The agents instructed Keel to call Whea-ton and request $100 worth of crack cocaine. Keel informed the agents that Wheaton was unable to come, but Wheaton was sending Thames. Thames was a mechanic at Wheaton’s garage. He was also a long-time drug addict and an associate of Keel. Both Keel and Thames testified that-they often had done drugs together. After the call to Wheaton, agents gave Keel five twenty-dollar bills to purchase the drugs.

¶ 5. Agents Sidney Coleman and Warren Buchanan hid in another room in the trailer while Agent Stanley Wash conducted' surveillance from his vehicle near the neighborhood of the trailer park. Subsequently, Thames arrived at Keel’s trailer. Thames walked in and handed Keel a paper towel containing crack cocaine. Keel then gave Thames the five twenty-dollar bills.

¶ 6. Keel testified that she asked Thames for a cigarette then gave him the cash. Keel testified that the cash given to Thames was received from the MBN agents. Thames then asked her for a hit, but she informed him that the crack cocaine belonged to someone else. Thames left the trailer, and Agents Coleman and' Buchanan appeared from the other room in which they had been stationed during the drug buy. Agent Coleman immediately notified Agent Wash that Thames was leaving the premises. Agent Wash testified that after Thames exited the trailer park, he followed him and copied the tag number from the vehicle that Thames was driving. An investigation later showed that the vehicle, identified as a red Blazer-type SUV, was registered to Thames. Agent Wash, who was personally acquainted with Thames and his vehicle, verified that it was Thames and Thames’s vehicle.

¶ 7. Because this was an ongoing investigation, Thames was not arrested at the time nor was the money retrieved. The substance given to Keel by Thames was turned over to Agent Coleman, who subsequently submitted it to the Mississippi Crime Laboratory for analysis.

¶ 8. Grady E. Downey, a forensic scientist with the Mississippi Crime Laboratory, testified that an analysis of the substance received from the MBN in reference to this case revealed that it contained cocaine base in the amount of 0.60 gram. This cocaine-base substance is commonly known as crack cocaine.

¶ 9. Thames was convicted on August 10, 2007, and sentenced to serve fifteen years in the custody of the MDOC. Thereafter, Thames filed a motion for a JNOV or, in the alternative, a motion for a new trial, which was denied. Aggrieved, Thames appeals.

ANALYSIS

I. WHETHER THE JURY VERDICT WAS THE RESULT OF BIAS AND PASSION AND IS CONTRARY TO THE CREDIBLE EVIDENCE AND SUFFICIENCY OF THE EVIDENCE.

¶ 10. Thames contends that there was insufficient evidence presented to prove the sale of cocaine beyond a reasonable doubt, and the verdict was against the overwhelming weight of the evidence. Thames argues that: (1) he did not possess the intent to participate in a sale; (2) Keel admitted she made the buy from WTieaton; and (3) the jury instructions provided the jury no real guidance on the lesser-included offense of possession. This Court has stated that:

When reviewing the denial of a motion for new trial based on an objection to the weight of the evidence, this Court will only reverse 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). In making our determination, this Court is required to Anew the evidence in the light most favorable to the verdict; we will grant a new trial “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. However, in considering whether the evidence is legally sufficient to sustain a conviction in the face of a motion for [a] JNOV, our 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.’ ” Id. at 843(¶ 16) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The critical question in dealing -with such an issue 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. We will deem the evidence sufficient if the evidence against the defendant is such that “reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Id.

Dixon v. State, 953 So.2d 1117, 1121(¶ 13) (Miss.Ct.App.2006).

¶ 11. In this case, Thames was indicted for the sale of cocaine, which required the State to prove that Thames did willfully, unlawfully, feloniously, and knovringly sell and deliver a controlled substance in violation of Mississippi Code Annotated section 41-29-139(a)(l). Thames testified that he was in fact the man depicted in the video recording giving Keel what was identified as crack cocaine in a paper towel and receiving $100 in return. Viewing the evidence in the light most favorable to the prosecution, the video recording and testimony of both Keel and Thames are sufficient evidence of the sale of cocaine.

¶ 12. Next, Thames contends that he was only delivering the drugs to Keel, who admitted making the buy from Whea-ton. Thames asserts that he did not possess the intent to sell, but he was merely the errand runner and not the real drug seller. “[Substantial knovring participation in the consummation of a sale or in arranging for the sale may render one guilty of the illegal sale of unlawful controlled substances within [Mississippi Code Annotated] [s]eetion 41-29-139. One who aids and abets another, in such a context is an accessory before the fact and is guilty as a principal.” Williams v. State, 463 So.2d 1064, 1066 (Miss.1985). Although Thames was delivering drugs for Wheaton, he knew that he was to give drugs to Keel in exchange for money. Therefore, his mere participation as a runner gives rise to a knowing participation in the sale of drugs, thus, making him guilty of the sale of an illegal controlled substance. Again, the video recording and testimony of both Keel and Thames are sufficient evidence of the sale of cocaine.

¶ 13. Thames also contends that even if we find evidence sufficient to support the verdict and he is not entitled to an acquittal as a matter of law, we should grant him a new trial, as the verdict is against the overwhelming weight of the evidence. We disagree. The evidence indicates that Thames delivered drugs to Keel and received money in exchange for the drugs. Thames testified that he was the man depicted in the video recording which shows the exchange of money for drugs between Thames and Keel. Examining the evidence in the light consistent ■with the verdict, we do not find that allowing the verdict to stand sanctions an unconscionable injustice. Therefore, this issue is without merit.

¶ 14. Next, Thames also asserts that although instruction D-4 was given, which might be considered a lesser-inelud-ed-offense instruction, instruction S-l, the elements instructions, and D-5, the form of the verdict instruction, did not provide real guidance on the lesser-included offense of possession.

¶ 15. Jury instructions are to be read as a whole rather than in isolation. Burton v. Barnett, 615 So.2d 580, 583 (Miss.1993). If after doing so, the totality of the instructions fairly and accurately state the law and facts, this Court will not find error. Id. “When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Wilkerson v. State, 731 So.2d 1173, 1180(¶ 25) (Miss.1998). Instruction D-4, which was given, states:

The Court instructs the jury that if the jury finds a reasonable doubt that the Defendant did not sale cocaine but did, in fact, possess cocaine on February 15, 2006, then, in that event, the jury should find the Defendant guilty of possession of cocaine.

Instruction S-l, which was given, provides:

The Court instructs the Jury that if you believe from the evidence in this case beyond a reasonable doubt that at the time and place charged in the indictment and testified about, that the Defendant, Virty Lee Thames, did willfully, unlawfully, feloniously and knowingly sell and deliver to Donna Keel for the sum of $100.00, a Schedule II controlled substance, namely cocaine, then it is your duty to find the Defendant guilty as charged.

Instruction D-5, which was given, states:

Virty Lee Thames has been charged with sale of cocaine. If you find from the evidence in this case beyond a reasonable doubt that:
1. Virty Lee Thames, on or about February 15, 2006, in Newton County, Mississippi
2. Knowingly, and intentionally sold
3. Cocaine and
4. Virty Lee Thames knew that it was cocaine then you shall find the Defendant guilty as charged.
If the prosecution has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find Virty Lee Thames not guilty.

¶ 16. We find that instruction S-l is an accurate statement of the law. Instruction S-l lists the elements of the offense of sale of cocaine. Instruction D-4 did inform the jury that it could convict Thames of the lesser-included offense of possession. While it is true that D-4 does not define possession, the burden was upon Thames to offer a proper jury instruction defining possession. Instruction D-5 informs the jury that if it finds the State has not proven the elements of the offense of sale of cocaine beyond a reasonable doubt, then it should find Thames not' guilty. Our supreme court has previously held that a defendant is allowed to give “an instruction not only on the offense charged, but also on a lesser-included offense, an inferior offense, or an attempt to commit the offense without the charge being specifically stated in the indictment.” Mitchell v. State, 788 So.2d 853, 857(¶ 12) (Miss.Ct. App.2001). There is no indication in the record before this Court that Thames offered any instruction which defined for the jury the lesser-included offense of possession. The trial court refused only one defense instruction and that instruction did not relate to possession. Thus, this issue is without merit.

II. WHETHER TRIAL COUNSEL’S PERFORMANCE REPRESENTS INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 17. Thames contends that defense counsel’s performance was deficient prior to and at trial. Thames asserts twelve reasons that counsel’s performance should be considered ineffective: (1) the dual representation of Thames and Wheaton was prejudicial to his case; (2) the defense counsel’s voir dire examination of the veni-re was very weak and ineffective; (3) the defense counsel failed to make objections as the State asked several leading questions and extracted hearsay and speculative testimony from State witnesses; (4) defense counsel refused to interview four disinterested witnesses that would be vital to Thames’s defense; (5) defense counsel failed to object when Keel identified and authenticated the video recording without laying a proper foundation; (6) defense counsel failed to make voir dire inquiry and lay the necessary foundation to authenticate the recording; (7) defense counsel failed to object to the admission of the audio and video recording into evidence; (8) defense counsel failed to question Keel regarding her past criminal history and the compensation she received for her participation in the drug buy; (9) defense counsel declined to conduct voir dire of the State’s proffered expert witness; (10) defense counsel failed to make a motion for a directed verdict at the close of the State’s case; (11) defense counsel failed to insure the jury was properly instructed as to the form of the verdict; and (12) defense counsel failed to object to Thames’s sentence, which Thames contends was based on the court’s obvious assumption that the conviction was for the sale of cocaine and not the lesser-included offense of possession.

¶ 18. The applicable standard to determine a claim of ineffective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, the defendant must prove counsel’s performance was deficient, and but for the deficiency in counsel’s performance, the outcome likely would have been different. Dixon, 953 So.2d at 1123(¶ 20). “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.

a. Dual Representation

¶ 19. Counsel for Thames represented Wheaton. Thames asserts that because he and Wheaton possessed dissimilar interests, defense counsel’s dual representation of both him and Wheaton was an actual conflict of interest that was prejudicial to his defense. Thames contends that he was prejudiced because evidence that would have mitigated his sentence, would have been adverse to Wheaton; thus, mitigating evidence was not put on at trial.

¶ 20. This Court has previously held that:

Joint representation of co-defendants does not result in a per se violation of the right to counsel. The reviewing court presumes that trial counsel’s conduct is within the wide range of reasonable conduct and that decisions made by counsel are strategic. Defense counsel has an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial ... When defense counsel has breached his duty of loyalty by actively representing conflicting interests and the conflict of interest adversely affects his performance then prejudice is presumed. A criminal defendant who asserts ineffective assistance of counsel must make some showing of a possible conflict of interest or prejudice in order to justify reversal of a conviction.

Holmes v. State, 754 So.2d 529, 534(¶ 10) (Miss.Ct.App.1999) (internal citations and quotations omitted). “[Moreover], [i]n order to demonstrate a violation of his Sixth Amendment Rights, a defendant must establish that an actual conflict of interest affected his lawyer’s performance.” Brown v. State, 798 So.2d 481, 500(¶ 40) (Miss.2001).

¶ 21. The record is silent as to whether there was a formal waiver of dual representation. Thames admits that he allowed Wheaton to pay a significant portion of counsel’s quoted fee to represent him. Thames had the option to seek alternative representation, but he failed to do so. Thames did not make any objections to trial counsel’s representation of Wheaton. Based on our review of the record, we cannot find any evidence of prejudice from the dual representation or that such dual representation was adverse to Thames at the time of trial.

b.Voir dire Examination of Venire

¶ 22. Thames contends that defense counsel conducted a very weak and ineffective voir dire, which gave rise to ineffective assistance of counsel. “[Generally, the Fifth Circuit considers an attorney’s actions during voir dire to be a matter of trial strategy, which cannot be the basis for a claim of ineffective assistance of counsel unless counsel’s tactics are shown to be so ill chosen that it permeates the entire trial with obvious unfairness.” Harrell v. State, 947 So.2d 309, 315(¶ 21) (Miss. 2007). There is no evidence to suggest that counsel’s performance during voir dire, so undermined the entire trial proceedings as to amount to an unfair trial. Additionally, Thames offers no evidence to show that counsel’s performance was so deficient that the outcome of the proceedings would have been different.

c. Objections to Leading Questions and Hearsay

¶ 23. Thames argues that there were several instances during trial in which the State asked leading questions and extracted hearsay from the State’s witnesses without any objection by defense counsel. Defense counsel only objected twice during the trial proceedings to leading questions and hearsay. “[C]ounsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy.” Bigner, 822 So.2d at 346-47(¶ 24). Moreover, “leading questions ... will rarely create so distorted an evidentiary presentation as to deny the defendant a fair trial.” Anderson v. State, 904 So.2d 973, 981(¶ 28) (Miss.2004). In this case, we find that the asking of leading questions and extraction of hearsay did not prejudice Thames’s case.

d. Refusal to Interview Witnesses

¶ 24. Thames alleges that he suffered ineffective assistance of counsel because his attorney refused to interview four disinterested witnesses for purposes of them testifying at his sentencing hearing. Thames has failed to provide the identity of these disinterested witnesses or make a proffer of their anticipated testimony. Absent a proffer, it is impossible for this Court to speculate what these witnesses might have added to the sentencing hearing.

¶25. In Wiggins v. Smith, 539 U.S. 510, 533, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), the United States Supreme Court held that:

Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case. Both conclusions would interfere with the “constitutionally protected independence of counsel” at the heart of Strickland.

The Supreme Court based this conclusion “on the much more limited principle that ‘strategic choices made after less than complete investigation are reasonable’ only to the extent that ‘reasonable professional judgments support the limitations on investigation.’ A decision not to investigate thus ‘must be directly assessed for reasonableness in all the circumstances.’” Id. (quoting Strickland, 466 U.S. at 689-91, 104 S.Ct. 2052) (internal citations omitted).

¶26. Thames had the opportunity to make the court aware that there were four witnesses available to testify on his behalf. After defense counsel made comments at sentencing, the court inquired if Thames desired to make any comments. Thames responded, “I would just ask for mercy.” Thames provided no affidavits as to the witnesses’ anticipated testimony. Without any additional information as to the identity of these witnesses and their testimony, we must presume that trial counsel’s decision was strategic. Thames has not demonstrated any prejudice by the failure to call these unidentified witnesses.

e. Identification and Authentication of DVD

¶ 27. Thames argues that counsel’s failure to object when Keel was allowed to identify and authenticate the video recording without laying a proper foundation amounted to ineffective assistance of counsel. Although counsel’s fail'ure to make certain objections has been previously addressed in this opinion, with regard to the confidential informant being allowed to identify and authenticate the recording, we look to Griffin v. State, 918 So.2d 882 (Miss.Ct.App.2006) and Mississippi Rule of Evidence 901(b)(1) for guidance on this issue.

¶ 28. “Under this Court’s standard of review, the admissibility of evidence rests within the discretion of the trial judge. Unless his judicial discretion is abused, this Court will not reverse his ruling. The same standards used in determining the admissibility of photographs are applicable to the admission of videotapes.” Griffin, 918 So.2d at 884(¶ 9). “Mississippi Rule of Evidence 901(b)(1) provides that authentication can be accomplished by [the] testimony of a witness with knowledge that a matter is what it is claimed to be.” Id. at 885(¶ 9).

¶ 29. We find that the State satisfied its burden according to Mississippi Rule of Evidence 901(b)(1). The audio and video recording equipment was set up in Keel’s trailer. Keel, who participated in the sale as a confidential informant, possessed sufficient knowledge of the transaction that occurred on the recording. On direct examination, Keel described the location of both the audio and video recording and acknowledged that she was being recorded. Prior to trial, Keel had an opportunity to review the video recording. Keel stated that the video recording was a true and :accurate depiction of the transaction that took place on February 15, 2006, between herself and Thames. Therefore, we find that the proper foundation was laid by the State.

f. Failure to Cross-examine Confidential Informant

¶ 30. Thames argues that he received inadequate assistance of counsel when trial counsel failed to cross-examine Keel regarding her criminal history and compensation from the State for her cooperation. The Mississippi Supreme Court has stated that:

[D]ecisions made at trial during cross-examination are tactical decisions, and this Court will not analyze these decisions in hindsight to find that certain questions should or should not have been asked of a witness. The general rule is that “an attorney’s decision to call certain witnesses and ask certain questions falls within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.”

Golden v. State, 968 So.2d 378, 389(¶ 45) (Miss.2007) (quoting Turner v. State, 953 So.2d 1063, 1073(¶ 36) (Miss.2007)). Thames presented no evidence to support this claim. We find that trial counsel’s decision not to question Keel regarding her criminal history and compensation was a tactical decision.

g. Voir dire of Expert Witness

¶ 31. “[T]he decision whether to question a witness on their qualifications as an expert witness is a part of the attorney’s trial strategy.” Sanders v. State, 825 So.2d 53, 58(¶ 10) (Miss.Ct.App. 2002). Thames asserts that defense counsel’s failure to conduct voir dire of the State’s proffered expert witness, forensic scientist Grady Downey, constituted ineffective assistance of counsel. Thames does not present supporting evidence to prove that had Downey been questioned, he would not qualify as an expert in the field, nor does Thames assert that he was prejudiced by counsel’s failure to voir dire Dow-ney. Based on Downey’s testimony, the trial court found that he was qualified as an expert in the field of forensic science. Thames presented no evidence to suggest that Downey was not qualified as an expert in the field. This issue is without merit.

h.Failure to Make a Motion for a Directed Verdict

¶ 32. Thames contends that at the end of the State’s case-in-chief, defense counsel made a motion to dismiss the indictment and charges against Thames on the ground that the State failed to prove the essential allegations of the indictment. Thames asserts that defense counsel should have made a motion for a directed verdict. “Motions to dismiss, motions for JNOV, and motions for directed verdict all challenge the legal sufficiency of the evidence.” Wright v. State, 958 So.2d 158, 168(¶ 27) (Miss.2007). “Motions for directed verdict challenge the legal sufficiency of the evidence and [appellate courts] will reverse only when the evidence is such that ‘reasonable and fair-minded jurors could only find the accused not guilty.’ ” Jaramillo v. State, 950 So.2d 1104, 1107(¶ 9) (Miss.Ct.App.2007). “In considering a motion to dismiss, the trial judge should consider ‘the evidence fairly, as distinguished from in the light most favorable to the plaintiff,’ and the court should dismiss the case if it would find for the defendant.” Id.

¶ 33. Clearly, it appears that while Thames’s trial counsel did not use the term “directed verdict” in his request to the court, his motion had the same effect, because it went to the legal sufficiency and was understood by the trial judge, who overruled the motion based on the legal sufficiency of the evidence.

i. Failure to Instruct Jury as to Form of the Verdict

¶ 34. Thames requested and received a jury instruction on the lesser-included offense of possession of the controlled substance. However, he asserts that defense counsel’s failure to insure that the jury was properly instructed as to the form of the verdict, given the alternatives offered, amounted to ineffective assistance of counsel.

¶ 35. “[This Court] presume[s] that jurors follow the instructions of the court.” Stubbs v. State, 878 So.2d 130, 137(¶19) (Miss.Ct.App.2004). “To presume otherwise would be to render the jury system inoperable.” Id. “Where there has been substantial compliance with the law, a jury’s verdict will not be reversed for mere want of form. Case law instructs that if the jury’s intent can be understood in a reasonably clear manner, there has been substantial compliance and there is no error.” Jordan v. State, 912 So.2d 800, 814(¶35) (Miss.2005) (citing Miss.Code Ann. § 99-19-9 (Rev.2007)). “The basic test with reference to whether or not a verdict is sufficient as to form is whether or not it is an intelligent answer to the issues submitted to the jury and expressed so that the intent of the jury can be understood by the court.” Coles v. State, 756 So.2d 12, 14(¶ 12) (Miss.Ct.App. 1999).

¶36. The jury was instructed that if they found the defendant guilty as charged in the indictment, the form of their verdict was to be as follows: “[w]e, the jury, find the defendant, Virty Lee Thames, [g]uilty as charged [sale of cocaine].” However, if the jury found Thames guilty of possession of cocaine in an amount of 0.60 gram, the form of the verdict should be as follows: “[w]e, the jury, find the defendant, Virty Lee Thames, guilty of possession of 0.60 gram of cocaine.” It is clear from the instructions given that the jury’s verdict was based on the instructions given, which were not deficient as to the form of the verdict. After reviewing the jury instructions given as a whole, we find that the jury was properly instructed on the form of the verdict as to the crime for which Thames was indicted, as well as the lesser-included offense of possession.

j. Failure to Object to Conviction

¶ 37. Thames argues that he suffered ineffective assistance of counsel when defense counsel failed to object to his being sentenced on the court’s assumption that the conviction was for “sale of cocaine” and not the lesser-included offense of “possession.” Thames was convicted of the sale of cocaine. Pursuant to Mississippi Code Annotated section 41-29-139(b)(l) (Rev.2005), “one who violates subsection (a) of this section ... such person may, upon conviction, be imprisoned for not more than thirty (30) years.” Thames was sentenced to serve fifteen years in the custody of the MDOC. We find the sentence that Thames received was consistent with the jury’s verdict and within the statutory limits. In his petition, Thames has failed to demonstrate how counsel’s failure to object to the sentence, which was in accordance with the verdict and the statutory limits, amounted to deficient performance and could have resulted in a different outcome. Therefore, this issue is without merit.

¶38. There is no merit to any of the assignments of errors raised by Thames as being illustrative of ineffective assistance of counsel.

III. WHETHER THE CUMULATIVE ERRORS RESULTED IN AN UNFAIR TRIAL.

¶ 39. Having found no merit to any of the specific errors alleged by Thames, this Court can find no cumulative error.

¶ 40. THE JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS 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.


author: GRIFFIS, J.,

text:
    Carl WILLIAMS a/k/a Carl E. Williams a/k/a Speedy, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-CP-02029-COA.
    Court of Appeals of Mississippi.
    March 31, 2009.
    Carl Williams, pro se.
    Office of the Attorney General By: Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the court.

¶ 1. Carl Williams appeals the Oktibbeha County Circuit Court’s dismissal of his motion to reduce his sentence. We find that no right to appeal the circuit court’s order exists; thus, this Court is without jurisdiction to hear this appeal. Accordingly, Williams’s appeal is dismissed.

FACTS

¶ 2. Williams pleaded guilty to the sale of cocaine. He was sentenced to serve twelve years in the custody of the Mississippi Department of Corrections, and he was placed on five years of post-release supervision. On September 25, 2007, Williams filed a motion for a reduction/reconsideration of his sentence. In that motion, Williams requested his sentence be reduced because he had made positive changes in his life including enrolling in a GED program.

¶3. An order entered on October 18, 2007, dismissed Williams’s motion to reduce his sentence. The circuit court found that the motion was not well-taken, and because Williams was sentenced during a previous term of court, the circuit court was without jurisdiction to suspend his sentence pursuant to Mississippi Code Annotated section 47-7-33(1) (Rev.2004), which states in part: “the court shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence.” The order stated that Williams was under the sole jurisdiction of the Mississippi Department of Corrections.

¶ 4. Williams filed his notice of appeal on November 8, 2007. In his brief, he presents the same argument that he presented to the circuit court — his sentence should be reduced because he does not have a lengthy criminal history, and he has made positive changes in his life. He also asserts that his attorney rendered ineffective assistance of counsel.

STANDARD OF REVIEW

¶ 5. A jurisdictional issue presents a question of law and is thereby reviewed under a de novo standard. Burnette v. Hartford Underwriters Ins. Co., 770 So.2d 948, 950(114) (Miss.2000).

ANALYSIS

Whether Williams may appeal the circuit court’s order dismissing his motion to reduce his sentence.

¶ 6. Williams asks this Court to reverse the circuit court’s dismissal of his motion to reduce his sentence. The State responds that the dismissal of a motion to reduce a sentence is not an appealable order; thus, this purported appeal should be dismissed.

¶ 7. As this Court has previously stated, “an appeal from a judgment may not be allowed unless there is a statute authorizing such an appeal.” Smith v. State, 742 So.2d 1188, 1189(¶5) (Miss.Ct. App.1999). Further, “there are two primary ways in which a criminal defendant may challenge a trial court proceeding: (1) a direct appeal from a conviction, or (2) a proceeding under the Post[-]Conviction Relief Act. An appeal is a matter of statutory right and not based on any inherent common law or constitutional right.” Id. at (¶ 6) (quoting Fleming v. State, 553 So.2d 505, 506 (Miss.1989) (superceded by statute)).

¶ 8. In Fleming, an appeal was taken from the circuit court’s denial of a motion for transcripts of sentencing and other court records. Fleming, 553 So.2d at 505-06. The supreme court held that it had no jurisdiction to hear the appeal because Fleming did not directly appeal his conviction or proceed by filing a motion for post-conviction collateral relief. Id. at 506.

¶ 9. Just as in Fleming, Williams pleaded guilty and did not directly appeal his conviction. Neither did he file a motion under the Mississippi Uniform Post-Conviction Collateral Relief Act. Following the analysis of Fleming, we do not possess the requisite jurisdiction to consider Williams’s appeal. Accordingly, this appeal is dismissed.

¶ 10. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.

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


author: MURDOCK, Justice. LYONS, Justice

text:
    Francis Price CROSSLIN v. HEALTH CARE AUTHORITY OF the CITY OF HUNTSVILLE d/b/a Huntsville Hospital, and Thomas J. Calvert, M.D.
    1051537.
    Supreme Court of Alabama.
    Sept. 12, 2008.

      Michael K. Timberlake of Siniard, Tim-berlake & League, P.C., Huntsville, for appellant.
    W. Stanley Rodgers and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee Health Care Authority of the City of Huntsville d/b/a Huntsville Hospital.
    Michael A. Florie and J. Wilson Axon, Jr., of Starnes & Atchison, LLP, Birmingham, for appellee Thomas J. Calvert, M.D.
   MURDOCK, Justice.

Francis Price Crosslin appeals from a judgment of dismissal by the Madison Circuit Court in his medical-malpractice action against the Health Care Authority of the City of Huntsville d/b/a Huntsville Hospital (“Huntsville Hospital”) and Thomas J. Calvert, M.D. We reverse.

I. Facts and Procedural History

On February 23, 2002, Crosslin presented himself at the emergency room at Huntsville Hospital complaining of nausea, dizziness, and weakness. Dr. Calvert evaluated Crosslin and ordered a CT scan of Crosslin’s head, an electrocardiogram, a chest X-ray, and a blood count. The CT scan was performed at Huntsville Hospital later the same day. Immediately following the CT scan, a radiologist reviewed the images produced by the scan and issued a preliminary radiology report. This report indicated that Crosslin had a tumor on his pituitary gland. Later in the day, Dr. Calvert spoke with Crosslin concerning his condition, but he failed to inform him of the findings of the preliminary radiology report indicating that he had a pituitary tumor. There is no allegation that the symptoms from which Crosslin suffered on February 23, 2002, were related to the existence of the pituitary tumor. Thereafter, Crosslin was discharged from Huntsville Hospital.

On September 1, 2005, Crosslin presented himself at Huntsville Hospital complaining of a loss of vision in his left eye and decreased vision in his right eye. A CT scan of Crosslin’s head again indicated the presence of the pituitary tumor that had been identified by means of the previously performed CT scan. It was on this date, according to Crosslin, that he first learned of the pituitary tumor. He alleges that he was unaware before this date of any facts that would have reasonably led to the discovery of the tumor.

On September 3, 2005, surgery was performed on Crosslin to remove the tumor. Since the time of the surgery, Crosslin’s vision has not improved, and he presently suffers from blindness and/or severely limited vision in both eyes.

On February 24, 2006, Crosslin filed the present medical-malpractice action against Huntsville Hospital and Dr. Calvert. He alleged that Huntsville Hospital and Dr. Calvert were negligent and wanton by failing to inform him of the existence of the pituitary tumor that was identified by the 2002 CT scan. He alleged that, as a direct and proximate result of Huntsville Hospital’s and Dr. Calvert’s negligence and wantonness, he suffered severe bodily injury, including blindness or severely limited vision in both eyes. He also included allegations of negligence and wantonness against numerous fictitiously named defendants.

On March 16, 2006, Huntsville Hospital and Dr. Calvert filed a motion to dismiss pursuant to Rule 12(b)(6), Ala. R. Civ. P. On March 29, 2006, they filed a brief in support of their motion. In their brief, Huntsville Hospital and Dr. Calvert argued:

“The alleged breach of the standard of care in this case was a failure to inform Mr. Crosslin of the presence of a pituitary tumor on February 23, 2002. If the defendants breached the standard of care and caused damages as Crosslin claims, Crosslin would have been damaged on the same date as the alleged negligence, because he was already suffering from the tumor.”

Because Crosslin did not file his complaint until four years and one day after February 23, 2002, they argued, Crosslin’s action was barred by § 6-5-482(a), Ala.Code 1975, a part of the Alabama Medical Liability Act, Ala.Code 1975, §§ 6-5-480 to -488 (“the AMLA”).

On May 18, 2006, Crosslin amended his complaint to allege that he suffered bodily injury after February 24, 2002, as a direct and proximate result of Huntsville Hospital’s and Dr. Calvert’s alleged negligence and wantonness. On that same day, Crosslin filed a response to Huntsville Hospital and Dr. Calvert’s motion to dismiss. He argued that his cause of action did not accrue until he suffered an injury, which, according to his amended complaint, allegedly happened after February 24, 2002. Thus, he argued, his complaint was not barred by § 6-5-482(a).

On June 14, 2006, the trial court granted Huntsville Hospital and Dr. Calvert’s motion to dismiss. In its order entering the judgment of dismissal in their favor, the trial court stated:

“All claims asserted against the Hospital and Dr. Calvert by the plaintiff, Francis Price Crosslin, are hereby DISMISSED, with prejudice, because the claims are barred by the statute of limitations contained in Ala.Code § 6-5-482 (1975). The allegations of [Crosslin’s] own complaint demonstrate that the claims were filed more than four years after the date on which the cause of action accrued, which means the claims are barred as a matter of law.”

(Capitalization in original.) Crosslin filed a postjudgment motion seeking to have the trial court reconsider its dismissal, which the trial court denied. Crosslin appeals.

II. Standard of Review

In considering whether a complaint is sufficient to withstand a motion to dismiss under Rule 12(b)(6), Ala. R. Civ. P., a court “must accept the allegations of the complaint as true.” Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002) (emphasis omitted). “ ‘The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [it] to relief.’” Smith v. National Sec. Ins. Co., 860 So.2d 343, 345 (Ala.2003) (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993)). In determining whether this is true, a court considers only whether the plaintiff may possibly prevail, not whether the plaintiff will ultimately prevail. Id. Put another way, “ ‘a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.’ ” Id. (emphasis added). Specifically, with regard to an affirmative defense like the one that is the basis of Huntsville Hospital and Dr. Calvert’s motion in the present case, the standard for granting a motion to dismiss is “ “whether the existence of the affirmative defense appears clearly on the face of the pleading.’ ” Jones v. Alfa Mut. Ins. Co., 875 So.2d 1189, 1193 (Ala.2003) (addressing the affirmative defense of the statute of limitations) (quoting Braggs v. Jim Skinner Ford, Inc., 396 So.2d 1055, 1058 (Ala.1981)).

III. Analysis

Crosslin points out that his amended complaint alleges that he was injured sometime after February 24, 2002, as a result of Huntsville Hospital’s and Dr. Calvert’s alleged failure to inform him of the existence of the pituitary tumor discovered by the CT scan taken on February 23, 2002. Thus, he argues, his complaint is not inconsistent with his ultimately proving a set of facts under which his claim would not be barred, i.e., that his complaint was filed within four years of the date on which his cause of action accrued.

Section 6-5-482(a), Ala.Code 1975, provides, in pertinent part:

“(a) All actions against physicians, surgeons, dentists, medical institutions, or other health care providers for liability, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act, or omission, or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act .... ”

The parties do not dispute that the present action is governed by the AMLA. The parties likewise do not dispute that, under the allegations of the complaint, Crosslin is entitled to the benefit of the six-month discovery rule contained in § 6-5-482(a), and, thus, that his complaint alone does not, on its face, provide a basis for determining that his claims are barred by the two-year statute of limitations. The only question before this Court is whether the trial court erred when it found that the affirmative defense that Crosslin’s action is barred by the above-quoted four-year limitation “appears clearly on the face” of Crosslin’s complaint.

This Court has held that the four-year period of repose in § 6-5-482(a) “is an ‘absolute bar to all medical malpractice claims which are brought more than four years after the cause of action accrues.’ ” Ex parte Sonnier, 707 So.2d 635, 637 (Ala.1997) (quoting Bowlin Horn v. Citizens Hosp., 425 So.2d 1065, 1070 (Ala.1982)). “A cause of action ‘accrues’ under § 6-5-482 when the act complained of results in legal injury to the plaintiff.” Mobile Infirmary v. Delchamps, 642 So.2d 954, 958 (Ala.1994). “When the wrongful act or omission and the resulting legal injury do not occur simultaneously, the cause of action accrues and the limitations period of § 6-5-482 commences when the legal injury occurs.” Id.; see also Grabert v. Lightfoot, 571 So.2d 293, 294 (Ala.1990) (“ ‘The statutory limitations period does not begin to run until the cause of action accrues. ... A cause of action accrues when the act complained of results in injury to the plaintiff.’ ” (quoting Colburn v. Wilson, 570 So.2d 652, 654 (Ala.1990))); Ramey v. Guyton, 394 So.2d 2, 4 (Ala.1981) (noting that when the negligent act and the resultant harm do not coincide, the accrual date of a cause of action under the AMLA is the date of the latter).

In the present case, Crosslin has alleged that Huntsville Hospital and Dr. Calvert failed to inform him that he had a tumor on his pituitary gland on February 23, 2002. Crosslin has alleged that, as a result of the failure of Huntsville Hospital and Dr. Calvert to inform him of the existence of the pituitary tumor, he later suffered vision loss in both of his eyes. Thus, it appears that the legal injury Crosslin is alleging is that, because Huntsville Hospital and Dr. Calvert did not inform him of the existence of the pituitary tumor when it was discovered on February 23, 2002, he did not have the condition remedied before the tumor worsened and other physical injuries were caused by it.

The allegations of the complaint, if taken as true, do not foreclose the possibility of Crosslin’s proving a set of facts that would entitle him to relief. For example, the evidence might show that the tumor was not in a growth phase when Dr. Calvert first diagnosed it on February 23, 2002, and therefore that the tumor did not worsen on that date. Nor do the allegations of the complaint foreclose the possibility of proof that, even if the tumor did worsen on February 23, 2002, a disclosure of the presence of the tumor to Crosslin on February 23, 2002, would likely not have resulted in surgery on that same day so as to halt whatever worsening of his condition otherwise would have occurred between that day and the following day, February 24, 2002. Indeed, even after the tumor was discovered in a much advanced state several years later, surgery to remove it was not scheduled until two days after its discovery. In other words, the complaint does not, on its face, establish that Huntsville Hospital’s and Dr. Calvert’s failure to inform Crosslin of the tumor on February 23, 2002, resulted in any actual injury to Crosslin before February 24, 2002, the first day of the four-year period in question.

Relying on Grabert v. Lightfoot, supra, and Tobiassen v. Sawyer) 904 So.2d 258 (Ala.2004), Huntsville Hospital and Dr. Calvert argue that Crosslin necessarily sustained a legal injury on February 23, 2002, the date they allegedly failed to inform him of the existence of the pituitary tumor, and that, therefore, his action is time-barred under § 6-5-482(a). Grabert and Tobiassen, however, are distinguishable because in those cases the act of alleged medical malpractice immediately caused an identifiable injury to the complaining party and that injury fell outside the applicable time period, whereas, in the present case, Crosslin’s complaint does not foreclose his ability to prove that the injury caused by Huntsville Hospital’s and Dr. Calvert’s alleged malpractice did not occur until some time after the actual act of malpractice and therefore within the applicable time period.

In Grabert, the plaintiff was diagnosed with a hernia and underwent surgery for the purpose of repairing it. During that surgery, however, the surgeon failed to locate and repair the hernia. After a second surgery to repair the hernia left the plaintiff impotent, he sued the first surgeon because of that surgeon’s failure to' remedy the hernia during the first surgery. We held that the plaintiffs cause of action for medical malpractice accrued on the date of the first surgery because it was immediately after the first, unsuccessful operation that the plaintiff was entitled to maintain an action against the surgeon. Grabert, 571 So.2d at 294. Because of the alleged negligence of the first surgeon, the plaintiff had “suffered” a surgery that availed him nothing.

Unlike the malpractice at issue in Gra-beri, Dr. Calvert’s alleged failure to inform Crosslin of the existence of the pituitary tumor did not, in and of itself, cause Cross-lin any actual injury. As explained above, Crosslin may be able to prove a set of facts establishing that he suffered no actual injury until within the applicable four-year period at issue. Thus, our holding in Gra-bert does not compel a finding in this case that Crosslin’s injury arose at the time of Huntsville Hospital’s and Dr. Calvert’s alleged negligent or wanton act or omission.

Huntsville Hospital and Dr. Calvert’s reliance on Tobiassen is likewise misplaced. In that case, the plaintiff presented himself for treatment at the emergency room of a hospital, suffering from the following symptoms as a result of a stroke: “ ‘severe headache, impaired balance, numbness to only one side of the body, and tingling on only one side of the body.’ ” 904 So.2d at 259. As the opinion notes, the doctor who treated the plaintiff in the emergency room on that day failed to discover the reason for the plaintiffs symptoms and sent him home “ hvith no treatment for the stroke.’ ” 904 So.2d at 261 n. 2 and accompanying text. The plaintiff, continuing to suffer symptoms from the stroke, returned to the emergency room on the following day, at which time he was admitted to the hospital; an additional three days passed before he was told that he had suffered a stroke.

Two years and four days after he had first been treated at the emergency room, the plaintiff sued the physician who had treated him at the emergency room and the hospital at which the emergency room was located. The plaintiff alleged that the physician and hospital had negligently failed to diagnose and treat the stroke the plaintiff had suffered. The physician moved for a judgment on the pleadings, and the hospital moved for a summary judgment, both arguing that the plaintiffs claim was barred by the two-year statute of limitations on medical-malpractice claims. After the trial court denied the motions, this Court granted permission to appeal. Reversing the trial court’s order denying the physician’s and the hospital’s motions and rendering a judgment for both defendants, this Court held that the plaintiffs cause of action accrued on his first visit to the emergency room when the defendants failed to diagnose and treat his stroke. Tobiassen, 904 So.2d at 261.

Our holding in Tobiassen was fully justified under the facts of that case. The plaintiffs injury from the defendants’ failure to diagnose and treat the plaintiffs stroke was immediate.

In the present case, however, Crosslin has not alleged when he was harmed as a result of the tumor remaining in his body longer than it would have had Huntsville Hospital and Dr. Calvert immediately informed him of its presence. The complaint alleges only that injury occurred “after February ¾⅜ 2002.” The allegations in Crosslin’s complaint thus stand in contrast to the circumstance presented in To-biassen, where the failure to diagnose and treat the stroke caused the plaintiff to suffer an immediate legal injury.

IV. Conclusion

In the present case, it does not “ ‘appear[ ] beyond doubt that the plaintiff can prove no set of facts in support of [his] claim that would entitle [him] to relief.’ ” Smith, 860 So.2d at 345 (quoting Nance, 622 So.2d at 299). Specifically, the allegations of Crosslin’s complaint, if true, would not prevent Crosslin from proving a set of facts establishing that he first suffered actual injury within the four-year period immediately preceding the filing of his complaint. Consequently, the trial court was incorrect in concluding that Crosslin’s action was due to be dismissed under Rule 12(b)(6). We therefore reverse the trial court’s judgment and remand the cause for further proceedings.

REVERSED AND REMANDED.

COBB, C.J., and STUART, J., concur.

LYONS and BOLIN, JJ., concur in part and concur in the result.

LYONS, Justice

(concurring in part and concurring in the result).

I concur in the main opinion to the extent that it concludes that the allegations of the complaint, even if taken as true, do not foreclose the possibility of proof that Crosslin’s tumor was not in a “growth phase when Dr. Calvert first diagnosed it on February 23, 2002,” thereby creating a fact situation where the tumor “did not worsen on that date.” 5 So.3d at 1197. Our settled caselaw, discussed in the main opinion, defers accrual of a cause of action to the date of injury when the negligent act and the resultant harm do not coincide. See, e.g., Ramey v. Guyton, 394 So.2d 2 (Ala.1980).

The main opinion then goes further, stating:

“Nor do the allegations of the complaint foreclose the possibility of proof that, even if the tumor did worsen on February 23, 2002, a disclosure of the presence of the tumor to Crosslin on February 23, 2002, would likely not have resulted in surgery on that same day so as to halt whatever worsening of his condition otherwise would have occurred between that day and the following day, February 24, 2002.”

5 So.3d at 1197. The main opinion cites no authority for deferral of accrual of a cause of action in the context of impracticality of immediate treatment, notwithstanding worsening condition. We have not yet considered this issue, so far as my research has determined. Until such facts are presented, making it necessary to decide the issue of deferral of accrual by impracticality of immediate treatment, I express no opinion, and, as to this aspect of the main opinion, I concur only in the result.

BOLIN, J., concurs.

      . Consistent with the cases cited, in both the trial court and in this Court both parties have framed the dispositive issue as when Cross-lin's cause of action accrued. Our review is limited accordingly.

      .We note that the Grabert Court also quoted Street v. City of Anniston, 381 So.2d 26 (Ala.1980), for the proposition that " ‘in malpractice actions, legal injury occurs at the time of the negligent act or omission, whether or not the injury is or could be discovered within the statutory period.’ " Grabert, 571 So.2d at 294 (quoting Street, 381 So.2d at 31). In making this statement, the Court was focused on a different issue than the one before this Court in the present case. In contrast to the present case, the focus of this statement was the issue of discovery of an injury and, more specifically, whether a failure to discover an injury postpones the accrual of a cause of action based on the injury. (The six-month discovery provision in § 6-5-482(a) was not applicable in either Grabert or Street.) The quoted passage does not speak to the situation where there is a failure of the injury and the negligent act to occur simultaneously, but instead presupposes that the injury occurs immediately upon the taking place of the negligent act or omission. See Grabert (involving a negligently performed surgery and a resultant immediate physical injury to the plaintiff); Street, 381 So.2d at 31 (rejecting the plaintiff's effort to distinguish certain previous cases, and instead reconciling those cases with Street on the ground that they involved the occurrence of an injury "which resulted immediately upon the taking place of the negligent act or omission”). In several medical-malpractice cases decided after Street, this Court has held that a legal injury does not necessarily occur at the same time as the negligent act or omission causing the injury. See, e.g., Mobile Infirmary v. Delchamps, 642 So.2d at 958 (rejecting argument that there was no set of facts under which the plaintiff could recover and holding that there was a right to present evidence as to whether implants placed in the plaintiff’s jaw on December 5, 1985, did not result in "legal injury until December 10, 1991, or some other time within two years of the filing of [tine] complaint”); Colburn v. Wilson, 570 So.2d at 654 (to similar effect); and Ramey v. Guyton, 394 So.2d at 4-5 (to similar effect).

      . Unlike other cases in the which the medical provider's negligence is the failure to treat an existing malady, see, e.g., Tobiassen v. Sawyer, 904 So.2d 258 (Ala.2004), and Grabert v. Lightfoot, supra, discussed infra, the medical providers' alleged failure here, because of its unique nature, is not, in and of itself, alleged to have immediately caused an actual injury to Crosslin.

      . For all that appears from the face of the complaint, the tumor may not have grown or otherwise worsened until the passage of a substantial amount of time following February 23, 2002.

      . As this Court stated: "[I]t is clear that Gra-bert was damaged at the time of the first operation ...; he had a hernia and Dr. Light-foot failed to find or to remedy that condition.” Grabert, 571 So.2d at 294.