author: ROBERTS, J.,

text:
    Titus Rayon JENKINS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00016-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.
    Rehearing Denied Nov. 29, 2011.

      Ronald L. Whittington, McComb, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. Titus Rayon Jenkins was convicted of possession of at least one-tenth gram but less than two grams of cocaine. The Pike County Circuit Court sentenced Jenkins as a repeat drug offender to sixteen years in the custody of the Mississippi Department of Corrections (MDOC) with four years suspended followed by four years of post-release supervision. Furthermore, the circuit court ordered Jenkins to pay a $10,000 fíne, court costs, and $750 toward the payment of his court-appointed lawyer. Aggrieved, Jenkins appeals and raises two issues: (1) the circuit court erred when it allowed the prosecution to introduce evidence of Jenkins’s pri- or conviction for selling cocaine, and (2) the circuit court committed plain error when it did not sua sponte prohibit the prosecution from commenting on Jenkins’s right to remain silent. Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2. MDOC probation officers Robbie Roberts and Todd Dillon received a tip that one of their probationers, Quentin Nobles, was selling drugs from the porch of the home at 404 Adams Street in McComb, Mississippi. As the probation officers drove and looked for that address, they recognized two men sitting on the porch: Nobles and Jenkins — both of whom were probationers under their supervision. Sabrina Martin, who actually lived at that address, was also sitting on the porch. The probation officers knew that there was an outstanding bench warrant for Jenkins’s arrest because Jenkins had absconded supervision while on probation. As the probation ' officers drove by, Jenkins jumped from Martin’s porch and began walking around to the back of Martin’s house.

¶ 3. Officer Dillon called out to Jenkins. Officer Dillon asked Jenkins to come speak to him. However, Jenkins ran from Officer Dillon. Officer Dillon chased Jenkins as Jenkins ran toward a tree line behind Martin’s home. Officer Roberts ran around the opposite side of Martin’s home. Officer Dillon caught Jenkins as Jenkins reached the tree line behind Martin’s home. Immediately before Officer Dillon caught Jenkins, Officer Dillon saw Jenkins throw a plastic bag into the brush near the tree line. Officer Dillon restrained Jenkins while Officer Roberts caught up. When Officer Roberts gave Officer Dillon a set of handcuffs, Officer Dillon told Officer Roberts that Jenkins had thrown a bag into the brush. Officer Roberts found the bag that Officer Dillon had described. Subsequent testing at the Mississippi Crime Laboratory revealed that the bag contained nine-tenths of a gram of cocaine.

¶ 4. Jenkins was indicted for possession of between óne-tenth gram and two grams of cocaine. Prior to trial, Jenkins filed a motion in limine to prohibit the prosecution from referencing the fact that Jenkins had been convicted of selling cocaine in 2002. The basis of Jenkins’s argument and the prosecution’s counter-argument will be discussed in greater detail in the analysis portion of this opinion. Ultimately, the circuit court granted Jenkins’s motion in part and denied it in part. The circuit court held that the prosecution would be allowed to present evidence that Jenkins was on felony probation at the time of his arrest. Furthermore, the circuit court held that the prosecution would be allowed to present evidence that there was an outstanding warrant for Jenkins’s arrest. However, the circuit court also held that the prosecution would be prohibited from presenting evidence regarding the precise nature of Jenkins’s prior conviction unless Jenkins first “opened the door.” In other words, the circuit court held that the prosecution could present evidence that Jenkins had a prior felony conviction, but the prosecution was not allowed to divulge that Jenkins’s prior felony conviction was for selling cocaine unless Jenkins first revealed that fact.

¶ 5. As previously mentioned, Jenkins was found guilty of possession of between one-tenth gram and two grams of cocaine. Jenkins appeals. Other factual matters and events that occurred during Jenkins’s trial will be discussed as necessary.

ANALYSIS

I. EVIDENCE OF JENKINS’S PRIOR CONVICTION

¶ 6. Jenkins claims the circuit court erred when it partially denied his motion in limine. According to Jenkins, the circuit court should have prohibited the prosecution from presenting evidence of his prior conviction. We are mindful of our standard of review under the circumstances. The admission of evidence is within the sound discretion of the trial court, subject to reversal on appeal only if there is an abuse of that discretion. Eckman v. Moore, 876 So.2d 975, 984 (¶ 31) (Miss.2004).

¶ 7. Jenkins actually raises two separate issues under this heading. First, Jenkins claims that evidence of his prior conviction was not admissible pursuant to Rule 404(b) of the Mississippi Rules of Evidence. Second, Jenkins claims that evidence of his prior conviction was not admissible pursuant to Rule 403 of the Mississippi Rules of Evidence. We address each argument in turn.

A. RULE 404(b)

¶ 8. As a preliminary matter, it is important to reiterate that the circuit court granted Jenkins’s motion in part. That is, the circuit court held that the prosecution was prohibited from presenting evidence that Jenkins had been previously convicted for selling cocaine. However, the circuit court also held that the prosecution was not prohibited from presenting evidence that Jenkins had an unspecified prior felony conviction. Additionally, the circuit court further held that the prosecution was not prohibited from presenting evidence that Jenkins was on probation for that prior unspecified felony conviction.

¶ 9. Notwithstanding the fact that the circuit court granted his motion in limine in part, Jenkins maintains that the circuit court erred when it denied his motion in limine in part. “Usually, evidence of another crime or prior bad act is not admissible.” Simmons v. State, 813 So.2d 710, 716 (¶ 30) (Miss.2002) (citing Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995)). However, evidence or proof of a prior crime or bad act is admissible where the offense charged and the prior crime are so interrelated as to constitute a single transaction or occurrence or a closely related series of transactions or occurrences. Underwood v. State, 708 So.2d 18, 32 (¶ 41) (Miss.1998). “Evidence of other crimes or bad acts is also admissible in order to tell the complete story so as not to confuse the jury.” Ballenger, 667 So.2d at 1257. The rationale for admitting evidence of certain closely related acts is that the prosecution “has a legitimate interest in telling a rational and coherent story of what happened.” Brown v. State, 483 So.2d 328, 330 (Miss.1986) (internal quotation omitted).

¶ 10. The prosecution did not introduce evidence that Jenkins was on probation or that he had an outstanding warrant for absconding from supervision as evidence of Jenkins’s character or as part of some effort to demonstrate that Jenkins was acting in conformity with his prior unspecified felony conviction. Instead, the prosecution introduced evidence that Jenkins had previously been convicted of some unspecified felony to explain the events that led to Jenkins’s arrest. That is, that Jenkins had previously been convicted of a felony; he had been placed on probation for that prior felony; and he had absconded from probation supervision all shed light on the events that transpired on the day that Jenkins was arrested. That evidence explained why Officers Dillon and Roberts recognized Jenkins. That evidence also explained why Officers Dillon and Roberts knew that there was an outstanding warrant for Jenkins’s arrest. Furthermore, that evidence explained why Jenkins ran from Officers Dillon and Roberts. Finally, that evidence explained why Officers Dillon and Roberts chased Jenkins and arrested him.

¶ 11. Without being allowed to present the evidence at issue, the jury would not have understood why the probation officers were in Jenkins’s vicinity, why they recognized Jenkins, why they knew there was a warrant for Jenkins’s arrest, why Jenkins recognized them, why Jenkins ran from them, or why the probation officers pursued Jenkins. If the prosecution had been prohibited from explaining those matters, it would have appeared as though the probation officers had harassed Jenkins and then pursued and arrested him without probable cause. There is no evidence in the record that the probation officers were in a marked squad car. There is no evidence that the probation officers were wearing uniforms. Absent the warrant and Jenkins’s status as a felony probationer, Jenkins had no duty to obey Officer Dillon’s request that Jenkins stop and talk to the probation officers. The prosecution would have had to attempt to counter the appearance that the two probation officers arrested a random person they had encountered for no other reason but the fact that Jenkins ran from them, when — if the facts were presented in that light — Jenkins would have had the right to just walk away from the probation officers.

¶ 12. Jenkins cites Eubanks v. State, 419 So.2d 1330 (Miss.1982) for the proposition that proof of a crime distinct from that alleged in the indictment should not be admitted against the accused because “[s]uch evidence tends to divert the minds of the jury from the true issue, and to prejudice and mislead them.” Id. at 1331 (quoting Floyd v. State, 166 Miss. 15, 35, 148 So. 226, 230 (1933)). The defendant in Eubanks was charged with simple assault on a conservation officer, and the trial court had allowed the prosecution to introduce evidence that there was an outstanding warrant to arrest the defendant for reckless driving, possession of alcoholic beverages, failing to yield to a blue light and resisting arrest. Id. at 1332. On appeal, the supreme court held that the evidence of the warrant was admissible to prove that it was within the arresting officer’s authority to arrest the defendant in Eubanks, but the trial court erred when it allowed the prosecution to introduce evidence regarding the details of the prior acts for which the warrant had been issued. Id.

¶ 13. In the case presently before us, the prosecution never offered any evidence that Jenkins had previously been convicted for selling cocaine. However, through his own testimony, Jenkins informed the jury that his prior conviction was drug related. Specifically, Jenkins testified that he had been convicted in 2002, he “got out” and he “violated, using alcohol.” Jenkins then testified that: “They sent me to restitution. I paid my fees and fines off. So I thought all this was behind me. So they put me back in Drug Court.” (Emphasis added). The following exchange then transpired between Jenkins and his court-appointed attorney:

Q. Titus, okay, you go back into Drug Court. Tell the jury what happened next.
A. I stopped reporting. They tried to lock me up again for no reason.
Q. Okay let’s go back to May 2 [the date of the arrest].
A. I knew I couldn’t get away. That was a long way from the bushes, so I stopped myself. So they said you were fixing to run for a reason. I said I had a warrant, that’s why I was fixing to run, a Drug Court warrant.

(Emphasis added). In his closing argument, Jenkins’s attorney stated, “[Jenkins] told you the truth about a previous crime. He told you they had a drug warrant — a warrant out for his arrest for Drug Court. He didn’t have to say that. He was truthful.” (Emphasis added). As previously mentioned, the circuit court had held that the prosecution could introduce evidence that Jenkins’s prior conviction was for selling cocaine if Jenkins first “opened the door.” Despite Jenkins and his attorney repeatedly informing the jury that Jenkins had been to Drug Court, the prosecution did not introduce any evidence that Jenkins had a prior conviction for selling cocaine.

¶ 14. We find that the trial judge did not abuse his discretion when he allowed the prosecution to introduce evidence that Jenkins was on probation for an unspecified prior felony conviction. That evidence explained the events that led to Jenkins’s arrest. Furthermore, despite his protestations to the contrary, Jenkins and his attorney told the jury that Jenkins had been to Drug Court — thereby relating Jenkins’s prior conviction to drug-related activity. The prosecution abided by the trial court’s order to refrain from discussing the nature of Jenkins’s prior conviction. We find that this issue is without merit.

B. RULE 403

¶ 15. Jenkins claims that the trial court erred when it allowed the prosecution to submit the evidence discussed above because the court had failed to conduct an on-the-record Rule 403 balancing test. Jenkins argues that the circuit court should have used language to show that he was fulfilling the requirements of the test, contrasting how the probative value of his prior felony conviction was substantially outweighed by the danger of unfair prejudice. Where a trial court determines that potentially prejudicial evidence possesses significant probative value, it is within that court’s sound discretion whether or not to admit such evidence since Rule 403 does not mandate exclusion, but rather provides that the evidence may be excluded. Baldwin v. State, 784 So.2d 148, 156 (¶ 27) (Miss.2001). In reviewing the trial court’s decision, we do not conduct our own de novo Rule 403 balancing test — we simply determine whether the trial court abused its discretion in weighing the factors and in admitting or excluding the evidence. Id.

¶ 16. As discussed above, the trial court held that the prosecution could “go into the fact that [Jenkins] was on probation at the time. These were probation officers. That there was an active warrant for his arrest, and that’s the reason he was arrested .... And as long as he doesn’t get on the stand and open the door, we are not going to say what he was on probation for.... [The probation officers] can testify to everything, other than the fact that [Jenkins] was on probation for sale of cocaine.”

¶ 17. Even though evidence of Jenkins’s prior felony conviction was deemed admissible pursuant to Rule 404(b), that evidence must still survive the required balancing test pursuant to Rule 403. Jones v. State, 920 So.2d 465, 475 (¶ 32) (Miss.2006). Rule 403 states: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Rule 403 is the “ultimate filter through which all otherwise admissible evidence must pass.” Watts v. State, 635 So.2d 1364, 1368 (Miss.1994).

¶ 18. The Mississippi Supreme Court has held that a trial judge who did not say the “magic words” regarding whether the probative value of evidence outweighed the prejudicial effect of that evidence would not be held in error because the trial judge “clearly performed a Rule 403 analysis.” Pitchford v. State, 45 So.3d 216, 246 (¶ 128) (Miss.2010). Additionally, in Pollard v. State, 932 So.2d 82, 88 (¶ 15) (Miss.Ct.App.2006), this Court held that although a trial judge had not used the “magic words,” it was implicit in the trial judge’s statements that the trial judge had found evidence more probative than prejudicial.

¶ 19. During the hearing on Jenkins’s motion in limine, the following exchange transpired:

[Jenkins’s attorney]: If he’s out on a warrant — I mean, if he’s out on a warrant, can’t they just say he was out on a warrant and not that he was out on a warrant for sale of cocaine? Because it’s so similar, it’s going to be highly prejudicial. And I don’t see any probative value that—
The Court: What exception would you seek to introduce it under, Mr. Byrd [ (prosecutor) ]? I mean, I think the Court is clear that this nebulous — where we list all the reasons that it might be admitted — is wrong. I mean, I think you have to list the reason that that prior conviction has been introduced. I mean, for the purpose of, and what exception would you argue.
[Prosecution]: The fact that it is interconnected, the two cases are so interconnected that the jury can’t get the whole picture. And that’s specifically listed under the annotations in the rules as written by the Supreme Court, 404(b), when it specifically says those other exceptions are not conclusive.
The Court: Would you get that annotated rule book off of the bench?
[Prosecution]: Also, your Honor, again, as I said, they are probation officers. They are charged with enforcing the probation rules.
The Court: I understand that. But I think you can — I mean, I don’t think it — you could certainly say he’s on probation without saying he’s on probation for sale of cocaine. I mean, that’s easy enough to fix.
[Jenkins’s attorney]: And, Your Hon- or, that’s our argument, I think that clearly gives a reason to stop without going into the sale of cocaine.
The Court: All right [reading from an annotated version from our decision in Bailey v. State, 956 So.2d 1016, 1042 (Miss.Ct.App.2007),] “The officer’s testimony that he arrested the defendant because he suspected the defendant violated Jackson’s open container ordinance, and that the defendant resisted arrest. It was necessary to present a complete story of how the defendant reappeared at a gas station.”
All right, I’m going to grant the motion in part. I’m going to let the State go into the fact that he was on probation at the time. These were probation officers. That there was an active warrant for his arrest, and that’s the reason he was arrested.
And as long as he doesn’t get on the stand and open the door, we are not going to say what he was on probation for.
[Prosecution]: Just so we are clear. And, obviously, I want to make sure my witnesses follow the ruling of the Court. They can testify that they are probation officers, obviously, and their job is what it is.
The Court: They can testify to everything, other than the fact that he was on probation for sale of cocaine.

We find that the trial court implicitly performed the requisite balancing test and found that the evidence of Jenkins’s prior conviction — so long as the precise nature of that conviction was not put before the jury — was more probative than prejudicial. Although the trial court did not utter the “magic words” by expressly stating that the probative value of the evidence at issue would substantially outweigh any danger of unfair prejudice, the court clearly weighed the potential prejudice to Jenkins’s prior felony conviction against its probative value. Thus, we find that the trial court did not abuse its discretion when it failed to recite the “magic words” that correlate to the Rule 403 balancing test. It follows that we find no merit to this issue.

II. PLAIN ERROR REGARDING PROSECUTORIAL MISCONDUCT

¶ 20. Jenkins claims the circuit court committed plain error when it did not, sua sponte, prohibit the prosecution from eliciting testimony from Officer Dillon regarding the fact that Jenkins had opted to remain silent after he was arrested. Specifically, Jenkins takes issue with the following portions of Officer Dillon’s direct testimony:

[Prosecution]: Now, you said you placed him in custody. How did [Jenkins] act whenever you placed him in custody and charged him with possession of cocaine? Officer Dillon: He was unwilling to speak to me.
[Prosecution]: Did he deny possessing the drugs?
Officer Dillon: He did not deny it.
[Prosecution]: Okay, Officer Dillon, so you got him into custody. What did you do after you got Mr. Jenkins into custody?
Officer Dillon: We transported Mr. Jenkins to the Pike County [J]ail.
[Prosecution]: At that point in time, did you question him further?
Officer Dillon: No sir, he was unwilling to speak. He wasn’t speaking to us at any point.

According to Jenkins, Officer Dillon’s testimony tended to indicate that, because he did not deny that the cocaine belonged to him, the jury assumed that it was, in fact, Jenkins’s cocaine.

¶ 21. Jenkins concedes that his attorney did not object to any portion of Officer Dillon’s testimony. When a party fails to raise a contemporaneous objection to the introduction of evidence, that party waives the right to take issue with the introduction of that evidence on appeal. Shavers v. State, 455 So.2d 1299, 1302 (Miss.1984). The rationale behind the contemporaneous objection rule is “so that the [trial] court may, when possible, correct the error with proper instructions to the jury.” Baker v. State, 327 So.2d 288, 292-93 (Miss.1976). Therefore, a trial judge will not be found in error on a matter not presented to him or her for decision. Smith v. State, 724 So.2d 280, 319 (¶ 155) (Miss.1998).

¶ 22. Nevertheless, Jenkins claims the trial court committed plain error when it did not, sua sponte, prohibit the introduction of Officer Dillon’s testimony because the testimony at issue addressed Jenkins’s “fundamental right” to remain silent. The plain-error doctrine requires that there be an error and that the error must have resulted in a manifest miscarriage of justice. Gray v. State, 549 So.2d 1316, 1321 (Miss.1989). The plain-error rule will only be applied when a defendant’s substantive or fundamental rights are affected. Grubb v. State, 584 So.2d 786, 789 (Miss.1991). Plain-error review is properly applied when “correcting obvious instances of injustice or misapplied law.” Newport v. Fact Concerts, Inc., 453 U.S. 247, 256, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981).

¶ 23. “A defendant has the right to remain silent following arrest, and not have that silence used against him.” Carr v. State, 655 So.2d 824, 845 (Miss.1995). This Court has previously held that “[i]t is error to refer at trial to an accused’s silence after arrest, provided that the silence occurred when the suspect was in custody and had been given Miranda warnings about the right to remain silent.” Walker v. State, 880 So.2d 1074, 1077 (¶ 9) (Miss.Ct.App.2004). However, we have also held that there can be no infringement upon the right to remain silent when the defendant did not exercise that right at the time of his or her arrest. Sheely v. State, 836 So.2d 798, 801 (¶10) (Miss.Ct.App.2002). Jenkins opted to testify. During his testimony, Jenkins claimed he did not remain silent when he was arrested. Specifically, Jenkins testified as follows:

Jenkins: I seen Robert Robertson [sic], the one with the full beard. He get out with his gun out. He telling [sic] me [sic] to get down, get down. He got [sic] a gun on me so I started down. By that time he done came and put his knee on my back and put the gun to my head. So I’m laying [sic] on the ground. I said, [“]what’d I do, what’d I do.]!’]
They said[,][“]why you run.[”] I said [,][“]/ wasn’t going to run, I was fixing to run, but I didn’t, I stopped myself before I ran. I knew I couldn’t get away. That was a long way from the bushes, so I stopped my self.[”]
So they said[,][“]you were fixing to run for a reason.[”] I said [,][“]/ had a warrant, that’s why I was fixing to run, a Drug Court warrant.]!’’]
So Todd come [sic] back around with a bag and said[,] “that’s why you ran, right here.” I said [,][“]that’s not mine, sir,]!’] like that.

(Emphasis added). Moreover, Jenkins testified that the probation officers showed him a picture of Nobles and told Jenkins that the charges against him would be dropped if Jenkins would tell them where they could find Nobles. Jenkins testified that he responded, “I said, I don’t know him.” During cross-examination, the prosecution asked Jenkins whether he had denied that he possessed cocaine. In response, Jenkins testified that he told the probation officers that he had denied that he possessed the cocaine. Consequently, Jenkins testified that he had not exercised his right to remain silent after he was arrested.

¶ 24. Even if Jenkins testified that he had exercised his right to remain silent after he was arrested, a defendant’s due-process rights are not violated by prosecutorial comments concerning that defendant’s post-arrest silence when that defendant did not receive a Miranda warning. Emery v. State, 869 So.2d 405, 409 (¶ 20) (Miss.2004). The record does not reflect that Jenkins received a Miranda warning when he was initially taken into custody. Neither the United States Supreme Court nor the Mississippi Supreme Court has addressed whether a violation of a defendant’s right to remain silent occurs when the prosecution uses a defendant’s post-arrest, pr e-Miranda silence as substantive evidence of that defendant’s guilt. In Hurt v. State, 34 So.3d 1191, 1200 (¶ 24) (Miss.Ct.App.2010), this Court held that there is no “plain, clear[,] or obvious error” regarding the introduction of a defendant’s post-arrest, pre-Mi-randa silence during the prosecution’s case-in-chief. We further discussed United State v. Salinas, 480 F.3d 750, 758 (5th Cir.2007), in which the United States Fifth Circuit Court of Appeals detailed the split among the federal circuits regarding whether the use of post-arrest, pre-Mi-randa silence as substantive evidence of guilt violates the Fifth Amendment privilege against self-incrimination. Hurt, 34 So.3d at 1198 (¶ 18). We ultimately held as follows:

As shown, the law surrounding the introduction of a defendant’s post-arrest, pre-Miranda silence during the prosecution’s case-in-chief is far from “plain, clear or obvious.” There is a significant federal circuit court split regarding this issue, and the United States Supreme Court has yet to address it. The Fifth Circuit addressed the issue in Salinas and found, after reviewing the issue under a plain-error analysis, that the error could not be held to be a plain error in light of the unsettled law surrounding the issue. This Court agrees that, in the present case, the error cannot be found to meet all the elements of the plain-error test in that it cannot be said to be a “plain, clear or obvious” error under the law in Mississippi. Accordingly, this issue is without merit.

Id. at 1200 (¶ 24). Following that precedent, we likewise find that the trial court did not commit plain error when it did not, sua sponte, prohibit the testimony at issue in this case. We note, however, that as in Hurt, we do not reach the issue of whether the use of post-arrest, pre-Miranda silence as substantive evidence of a defendant’s guilt violates the Fifth Amendment privilege against self-incrimination. Id. at 1199 (¶ 22). Be that as it may, we certainly do not find that the trial court committed plain error. Accordingly, we find no merit to this issue.

¶ 25. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF AT LEAST ONE-TENTH GRAM BUT LESS THAN TWO GRAMS OF COCAINE AND SENTENCE OF SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TWELVE YEARS TO SERVE, FOUR YEARS SUSPENDED AND FOUR YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A $10,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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

      . Jenkins initially claimed that he was going to relieve himself in the bushes. However, during the trial, he admitted that he recognized the probation officers when they drove up. Jenkins further admitted that he knew there was an outstanding warrant for his arrest because he had absconded from probation supervision.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    ALL AMERICAN PROCESSING, INC., Appellant v. Lawrence M. RUCKDESCHEL and Katherine R. Ruckdeschel, Appellees.
    No. 2010-CA-00522-COA.
    Court of Appeals of Mississippi.
    Aug. 30, 2011.
    Rehearing Denied Nov. 29, 2011.
    Jason B. Purvis, Gulfport, attorney for appellant.
    James H. Colmer Jr., Jason M. Payne, Pascaqoula, attorneys for appellee.
    Before IRVING, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In August 2007, Lawrence M. Ruck-deschel and Katherine R. Ruckdeschel (the Ruckdeschels) contracted with Hurricane Homes, Inc. (Hurricane Homes) to construct a modular home to be placed on the Ruckdeschels’ property in Pascagoula, Mississippi. Hurricane Homes operated its business on property leased to it by All American Processing, Inc. (All American). In February 2008, after Hurricane Homes failed to complete the contracted modular home, the Ruckdeschels filed suit against Hurricane Homes in the Jackson County Circuit Court. In June 2008, the Ruckdes-chels procured a lis pendens in connection •with the circuit court action on the property owned by All American and leased to Hurricane Homes. Subsequently, All American filed suit in the Jackson County County Court, seeking the release and cancellation of the lis pendens. The Ruck-deschels then amended their complaint in circuit court to add All American as a defendant in the action. After the county court conducted a hearing on All American’s claim, it cancelled the lis pendens in July 2008. The Ruckdeschels appealed the county court’s ruling to the Jackson County Chancery Court, which reversed the county court’s judgment and reinstated the lis pendens. All American now appeals. Finding error, we reverse the chancery court’s judgment and render the lis pendens cancelled.

FACTS

¶ 2. Two years after Hurricane Katrina destroyed the Ruckdeschels’ home on the Mississippi Gulf Coast, the couple contracted with Hurricane Homes for the construction of a modular home to be placed on the Ruckdeschels’ property. At all pertinent times, Hurricane Homes operated its business on property owned by All American and leased to Hurricane Homes. On February 22, 2008, after it became apparent that Hurricane Homes would not complete its contract, the Ruckdeschels filed suit against Hurricane Homes in circuit court alleging breach of contract, negligence, material misrepresentation, fraud in the inducement, conversion, and conspiracy.

¶ 3. On June 10, 2008, the Ruckdeschels, purportedly in connection with their circuit court action, obtained a lis pendens on the property owned by All American and leased to Hurricane Homes. All American had not been named a defendant in the Ruckdeschels’ suit at that time. Additionally, All American was under contract to sell the property to a third party at the time the lis pendens was recorded. On June 25, 2008, All American filed an amended complaint to an action it had pending in county court regarding the sale of the property, wherein All American requested the release and cancellation of the lis pendens. Shortly thereafter, the Ruck-deschels named All American as a defendant in their circuit court action.

¶ 4. On July 3, 2008, after a hearing, the county court dissolved the lis pendens. The property was then sold and conveyed to the aforementioned third party. The Ruckdeschels subsequently filed a motion in county court for a new trial on July 9, 2008, but they did not schedule a hearing until several months later. During that time, the Ruckdeschels obtained a default judgment against All American in the circuit court action. The Ruckdeschels then filed a supplement to their motion for a new trial and, alternatively, requested that the county court reverse its decision based upon the default judgment obtained against All American in circuit court. After a hearing on the matter in November 2008, the county court denied the Ruckdes-chels’ motions.

¶ 5. The Ruckdeschels appealed to the chancery court on December 19, 2008. A transcript of the county court proceedings was not included in the record on appeal to the chancery court, but evidence of the Ruckdeschels’ default judgment against All American from the circuit court was presented. The chancery court scheduled a hearing on the matter. All American declined to attend the hearing and waived its right to oral argument. After hearing the Ruckdeschels’ claims, the chancery-court reversed the decision of the county court and ordered reinstatement of the lis pendens. All American filed a motion for reconsideration, which was denied. All American now appeals. Finding error, we reverse the chancery court’s judgment, and render judgment to cancel the lis pen-dens.

DISCUSSION

¶ 6. In matters of equity, “findings of fact on conflicting evidence cannot be disturbed by this Court on appeal unless we can say with reasonable certainty that these findings were manifestly wrong and against the overwhelming weight of the evidence.” Richardson v. Riley, 355 So.2d 667, 668 (Miss.1978). The evidence shows that the Ruckdeschels employed Mississippi Code Annotated section 11-47-3 (Rev.2002) in obtaining the lis pendens at issue. Section 11-47-8 governs the filing of a lis pendens, stating:

When any person shall begin a suit in any court, whether by declaration or bill, or by cross-complaint, to enforce a lien upon, right to, or interest in, any real estate, unless the claim be founded upon an instrument which is recorded, or upon a judgment duly enrolled, in the county in which the real estate is situated, such person shall file with the clerk of the chancery court of each county where the real estate, or any part thereof, is situated, a notice containing the names of all the parties to the suit, a description of real estate, and a brief statement of the nature of the hen, right, or interest sought to be enforced. The clerk shall immediately file and record the notice in the lis pendens record, and note on it, and in the record, the hour and day of filing and recording.

¶ 7. Accordingly, the Ruckdeschels used their circuit court action against Hurricane Homes to obtain a lien on the property owned by All American and leased to Hurricane Homes. The Ruckdeschels assert a right to, or interest in, the subject property by claiming that “All American Processing, Inc., was a conduit through which [Hurricane Homes’] monies, or a portion of said monies, were funneled ... in an effort to defraud [the Ruckdeschels.]” They further assert that they are “entitled to an equitable interest in any and. all property and other assets of All American Processing, Inc., including the aforereferenced site upon which [the Ruckdeschels’] home was to be constructed, all as a result of [Hurricane Homes’] conversion of [the Ruckdes-chels’] funds into the corporate assets of All American Processing, Inc.”

¶ 8. In sum, the Ruckdeschels claim an ownership interest in All American’s property because they paid Hurricane Homes for work that was never completed. Because Hurricane Homes paid All American to lease the property, the Ruckdeschels also argue that the money paid by them to Hurricane Homes was ultimately converted into All American’s corporate assets when Hurricane Homes paid for its lease. The Ruckdeschels further assert that Hurricane Homes’ operation on All American’s property grants them the right to a lis pendens. We disagree.

¶ 9. In its order denying a new trial, the county court stated, “there is no substantial evidence that the claims set forth by [the Ruckdeschels] are tied to the property in such a way that the lis pendens statute would apply.” The Mississippi Supreme Court in W.H. Hopper and Assocs., Inc. v. Dunaway, 396 So.2d 43, 45 (Miss.1981) (quoting 51 Am.Jur.2d, Lis Pendens, § 17), dealt with a lis pendens issue, and the court stated the following:

Although the extent to which particular property must be “involved in”, or “affected by”, litigation in order to render the doctrine of lis pendens applicable may, of course, be governed by statute, it is clear that some form of identifiable “property” must be directly involved in the litigation, and, further, that the litigation to which the doctrine is sought to be applied must “involve” the particular property to which the doctrine is sought to be applied.

The supreme court further stated that “[t]he lis pendens statute was enacted for those who claimed to rightfully own an interest in the property [in question].” Dunaway v. W.H. Hopper & Assocs., Inc., 422 So.2d 749, 751 (Miss.1982).

¶ 10. Here, Hurricane Homes and All American are two distinct entities, and the action between the Ruckdeschels and Hurricane Homes is not tied to All American. The subject property is only indirectly tied to the Ruckdeschels’ legal actions because Hurricane Homes operated its business on the property as a lessee. Because Hurricane Homes was a lessee, it had no ownership interest in the subject property. Furthermore, it is clear that Hurricane Homes had no ownership interest in All American, and vice versa. As such, were the Ruck-deschels to obtain a judgment against Hurricane Homes, they could not seek redemption of the judgment through the liquidation of All American’s assets, including the subject property, even if Hurricane Homes were unable to fulfill the judgment independently. With respect to the present case, the assets and liabilities of Hurricane Homes and All American are not interchangeable, contrary to the Ruckdes-chels’ arguments.

¶ 11. Furthermore, the chancery court’s reinstatement of the lis pendens was not based upon any specific findings by the chancellor that the Ruckdeschels had an interest in the subject property and could legally enforce a lien on the property. Instead, the chancellor determined that because “a [d]efault [j]udgment had been entered against All American in [cjircuit [c]ourt,” the property in question must, therefore, be legally bound by the lis pen-dens. However, the Mississippi Supreme Court has reiterated the well-settled notion that “the [l]is [p]endens statute is for those with a vested interest or lien.” Aldridge v. Aldridge, 527 So.2d 96, 99 (Miss.1988) (citing Fernwood Lumber Co. v. Meehan-Rounds Lumber Co., 85 Miss. 54, 37 So. 502, 504 (1904)). The supreme court went on to state:

The [l]is [p]endens notice itself does not constitute an independent basis for imposition of a lien. Therefore, it was necessary that the chancellor make specific findings of fact sufficient to constitute an independent basis for imposing a lien on property rather than simply relying on the presence of a lis pendens notice as grounds therefor.

Id.

¶ 12. Likewise, the chancellor in the present case erred by failing to make specific findings as to the Ruckdeschels’ interest in the subject property and the property’s actual connection to the Ruckdeschels’ suit. While the default judgment against All American might have indicated potential liability for All American, the relevance of the subject property and, hence, the validity of the lis pendens remained unclear. However, our analysis above clarifies that the subject property has no direct involvement in the Ruckdeschels’ claims against Hurricane Homes or All American, and the Ruckdeschels have presented no evidence of a rightful claim to an interest in the property. Accordingly, we find manifest error in the chancery court’s reinstatement of the lis pendens. As such, we reverse the judgment of the chancery court and render to cancel the lis pendens.

¶ 13. THE JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES. *

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


author: BARNES, J.,

text:
    Eddie JOHNSON Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00494-COA.
    Court of Appeals of Mississippi.
    Oct. 4, 2011.

      Felecia Perkins, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. On February 17, 2010, a Scott County Circuit Court jury convicted Eddie Johnson Jr. of one count of statutory rape. Johnson was sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with fifteen years to serve without benefit of parole, fifteen years suspended, and five years of post-release supervision. Johnson filed a motion for a new trial, which the circuit court denied. He appeals the denial of his motion, and finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In the summer of 2008, fifteen-year-old Anna, who lived near Morton, Mississippi, with her mother and little brother, went to visit her older half-sister, Penny, for a couple of months. Both girls have the same father. Penny also lived near Morton and resided with her mother, her younger sister, and Johnson, her stepfather.

¶ 3. On August 1, 2008, a distraught Anna threatened to overdose on Tylenol® PM; however, Penny and her cousin, Kelly, stopped Anna from taking the pills. Anna became argumentative, left the house, and began to walk down the road. The other girls caught up with Anna and brought her to Penny’s grandmother’s house. At this point, Anna’s mother, Pamela, had been contacted about Anna’s behavior and had arrived at the grandmother’s home. Anna then told Penny, Kelly, Penny’s grandmother, and Pamela that Johnson had sexually assaulted her on two separate occasions in the past month. Pamela took Anna to a doctor for an examination and then took her to the sheriffs department, where Anna gave law enforcement a four-page written statement detailing the sexual assaults and advances that Johnson had made toward Anna during the month of July 2008.

¶ 4. In her statement, Anna stated that on July 4, 2008, she and Penny’s family were outside lighting fireworks. At one point that evening, Anna walked by Johnson and noted that he lightly brushed her buttocks with his hand. She assumed it was merely an accident. Shortly after midnight that same evening, Anna got out of bed and went to the kitchen to get a glass of water. She stated that Johnson came up behind her, put his arm around her neck, and whispered, “I’ll choke you.” Frightened, Anna allowed Johnson to take her to an empty room in the house. She lay on the floor, and Johnson had sexual intercourse with her. Afterwards, Anna said that she went back to Penny’s room and “cried [herself] to sleep.” A couple of days later, she told Penny about what had occurred. Penny advised her to tell Penny’s mother, but Anna said she was afraid.

¶ 5. In her statement, Anna also claimed that Johnson raped her a second time. She said that later that week, she and Penny fell asleep on the couch watching a movie. Although Johnson supposedly was gone on a business trip, at approximately three o’clock in the morning, Anna awoke to find him standing over her. Johnson began fondling Anna and touching her private areas. She claimed that he pushed her into an unoccupied bedroom and raped her again. She also reported this incident to Penny who said that she should tell someone; however, she did not. Anna also alleged that Johnson consistently tried to find opportunities to brush up against her.

¶ 6. Johnson was indicted on two counts of statutory rape in violation of Mississippi Annotated Code section 97-3-65(l)(a) (Rev.2006) on August 5, 2009. At the trial, Anna reiterated her claim that Johnson had raped her in the early morning hours of July 5th, but testified that he only touched her in a sexual manner during the incident on the couch. When questioned about the second incident on direct examination, Anna offered the following testimony:

Q. Nothing else happened except for him touching and rubbing against you on that occasion?
A. Yes, sir.
Q. Now, did he — did anything else of a sexual nature occur between you and him on this second occasion?
A. No, sir.
Q. No? You were never in the daughter’s bedroom with the Defendant, and no sexual contact between you and the Defendant took place in the daughter’s bedroom[?]
A. No, sir.

On cross-examination, defense counsel introduced Anna’s written statement into evidence in order to impeach her testimony. After being shown a copy of the statement, Anna then testified on cross-examination as follows:

Q. Okay. Now, Eddie Johnson’s charged with having sex with you twice, right? Do you understand that?
A. Yes, sir.
Q. But now you’re testifying today he only — it happened one time; is that right?
A. Yes, sir.
Q. And when you gave this statement, you said that the first time it happened that it happened — that it happened twice, right?
A. Yes, sir.
Q. That you had sex — that he had sex with you and then immediately he had sex with you again, right?
A. Yes, sir.
Q. But that’s not what you testified to today, is it?
A. No, sir.
Q. How many times did Eddie Johnson have sex with you?
A. To just my plain knowledge, that I can remember, it happened-before I came in here that I can remember, it happened once, and he molested me twice. But reading the paper, and refreshing my memory, I remember that it happened twice, that he molested me.

¶ 7. Johnson was convicted on one count of statutory rape; he was found not guilty on the other count of statutory rape, which pertained to what had occurred the night he allegedly awoke Anna on the couch. The circuit court sentenced Johnson to thirty years in the custody of the MDOC, with fifteen years to serve without benefit of parole, fifteen years to be suspended, and five years of post-release supervision. Johnson was also ordered to receive therapy for sexual addiction and to be evaluated for any need of drug and alcohol treatment.

¶ 8. Johnson filed a motion for a new trial on February 26, 2010, which the circuit court denied. Johnson timely filed a notice of appeal, and finding no error, we affirm.

DISCUSSION

I. Whether the circuit court erred in allowing Anna’s prior inconsistent statement to be admitted as evidence.

¶ 9. In her written statement given to law enforcement in August 2008, Anna stated that Johnson had sex with her on two separate occasions — once on July 5, 2008, and once on the night he woke her while she was on the couch. However, in her testimony during direct examination at trial, Anna said that Johnson only had sex with her once. Johnson introduced Anna’s written statement into evidence for impeachment purposes, and he now claims that the circuit court erred by allowing it to be used as substantive evidence. Johnson refers to the following remark made by the State in its closing argument: “That’s the truth, what she wrote, and what she presented in the way of her account of what happened on August 1st to Billy Patrick.”

¶ 10. The Mississippi Supreme Court has stated that “while a prior inconsistent statement of a testifying witness can be used to impeach the witness’s credibility, it is not admissible as substantive evidence of the defendant’s guilt.” Smith v. State, 25 So.3d 264, 271 (¶ 22) (Miss.2009). However, defense counsel failed to object to the State’s comment at trial. The failure to make a timely objection to an issue at trial waives consideration of the issue on appeal. Keys v. State, 33 So.3d 1143, 1149-50 (¶ 22) (Miss.Ct.App.2009) (citing Cavett v. State, 717 So.2d 722, 726 (¶21) (Miss.1998)). “The [circuit] court will not be held in error on a matter that was never presented for its consideration.” Id. (citing Bogan v. State, 754 So.2d 1289, 1294 (¶ 19) (Miss.Ct.App.2000)).

¶ 11. Notwithstanding the procedural bar, the only inconsistency in regard to Anna’s statement was related to the second incident, for which Johnson was not convicted. Furthermore, we find nothing to support Johnson’s assertion that this evidence was used to “bolster” Anna’s allegations regarding the first encounter. This issue is without merit.

II. Whether the circuit court erred by not issuing a limiting instruction as to the evidence of Anna’s written statement.

¶ 12. Johnson also contends that the circuit court should have issued sua sponte a limiting instruction to the jury regarding its consideration of the prior statement by Anna. Again, defense counsel made no objection at trial; therefore, this issue is procedurally waived on appeal.

¶ 13. Procedural bar aside, we find that since Johnson introduced the prior statement into evidence and never requested a limiting instruction, this issue lacks merit. In Moss v. State, 977 So.2d 1201, 1212 (¶ 22) (Miss.Ct.App.2007), this Court considered a similar situation where the defendant introduced evidence and then argued on appeal that the circuit court should have issued sua sponte a limiting instruction to the jury. We rejected this argument, citing the comments to Mississippi Rule of Evidence 105. “The rule requires that the party affected make a request to limit the evidence. If no request is made, and consequently the evidence is admitted, existing practice suggests that no error has been committed.” .Id. (quoting M.R.E. 105) (emphasis added). In our holding, we reasoned:

Our supreme court has interpreted Rule 105 to provide that a trial court is not obligated to sua sponte give a limiting instruction regarding the admittance of a prior conviction under Rule 404(b), overruling a line of cases requiring such an instruction. Brown v. State, 890 So.2d 901, 913 (¶ 36) (Miss.2004). The court held that Mississippi Rule of Evidence 105 “clearly places the burden of requesting a Rule 404(b) limiting instruction upon counsel.” Id. As the admittance of evidence of a prior conviction under Rule 404(b) has been analogized to the admittance of such evidence for the purpose of impeachment under Rule 609, Bounds v. State, 688 So.2d 1362, 1369 (Miss.1997), we can find no reason why the same rule should not apply in this instance. Thus, we hold that because the burden to request a limiting instruction falls upon defense counsel in the admittance of 404(b) evidence, the burden falls upon defense counsel to request a limiting instruction in the context of the admittance of prior convictions through impeachment under Rule 609.

Id. at (¶ 24) (emphasis added). Consequently, we find that the circuit court’s failure to submit a limiting instruction was not reversible error.

III. Whether the circuit court erred in denying Johnson’s motion for a directed verdict and his motion for a new trial.

¶ 14. Johnson argues that Anna’s testimony “was thoroughly contradictory” and that there was no physical evidence that she was raped. Thus, he claims that the circuit judge erred in denying his motion for a directed verdict as the evidence was insufficient to support the verdict. The State argues that the issue concerning Johnson’s motion for a directed verdict is waived as Johnson proceeded to introduce evidence after his motion was denied. However, in Johnson’s supplemental motion for a new trial he argued that “the evidence was insufficient as a matter of law to support the verdict of the jury.” Therefore, while the post-trial motion did not specifically state that it was a motion for a judgment notwithstanding the verdict (JNOV), it nevertheless presented the issue of sufficiency of the evidence to the circuit court and preserved it for appeal.

¶ 15. “Both a motion for [a] directed verdict and a motion for [a] JNOV challenge the sufficiency of the evidence presented to the jury.” McBride v. State, 61 So.3d 174, 183 (¶ 29) (Miss.Ct.App.2010) (citing Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)). If “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,” then the evidence is sufficient to support the verdict. Madden v. State, 42 So.3d 566, 569 (¶ 8) (Miss.Ct.App.2010) (quoting Bush, 895 So.2d at 843 (¶16)). “This Court will reverse a conviction only if, upon examination of the evidence, we find that the evidence ‘points in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty.’ ” Id.

¶ 16. In reviewing a circuit court’s denial of a motion for a new trial, this Court will reverse if the verdict is shown to be “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. at 572 (¶ 24) (quoting Bush, 895 So.2d at 844 (¶ 18)). “To determine whether a verdict is against the overwhelming weight of the evidence, this Court sits as a ‘thirteenth juror’ to examine the evidence in the light most favorable to the verdict.” Id.

¶ 17. Johnson argues that there were numerous contradictions in Anna’s testimony, and he notes the lack of any physical evidence that Anna was raped. He also observes that Anna remained in the home for almost a month afterwards. However, “the unsubstantiated and uncorroborated testimony of a victim is sufficient to support a guilty verdict if that testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with conduct of one who has been victimized by a sex crime.” Price v. State, 898 So.2d 641, 651 (¶ 23) (Miss.2005) (citations omitted). Further, physical evidence in not needed to support a conviction for rape. Walker v. State, 878 So.2d 913, 916 (¶ 17) (Miss.2004) (citing Winston v. State, 754 So.2d 1154, 1156 (¶ 5) (Miss.1999)).

¶ 18. Johnson is attempting to discredit the testimony of Anna by referring to her inconsistent statement regarding the second incident; however, it has been clearly stated by the Mississippi Supreme Court that “the jury is the judge of the credibility of a witness.” Price, 898 So.2d. at 652 (¶ 25) (citation omitted). The testimony of Penny, Kelly, and Pamela, concerning what Anna told them was similar to Anna’s testimony. There was also consistent testimony that Anna was very emotional and upset on the day that she told the others about the sexual assaults. Pamela also testified that the weekend prior to Anna’s emotional outburst, Anna came to see her, and she did not seem normal.

¶ 19. In reviewing the record, we find that the jury verdict was supported by sufficient evidence. Further, in viewing the facts in the light most favorable to the verdict, we find that the overwhelming weight of the evidence is not against Johnson’s conviction. Consequently, we find no error in the circuit court’s denial of Johnson’s motion for a directed verdict and his motion for a new trial.

IY. Whether the cumulative effect of errors warrants a reversal.

¶ 20. Johnson argues that the cumulative effect of the alleged errors at trial warrant a reversal of his conviction. However, a “[rjeversal based upon cumulative error requires a finding or findings of error.” Madden, 42 So.3d at 574 (¶ 31) (quoting Thompson v. State, 990 So.2d 265, 270 (¶ 12) (Miss.Ct.App.2008)). As we have found no merit to Johnson’s claims of individual error, a reversal of Johnson’s conviction is not warranted.

V. Whether defense counsel’s performance was ineffective.

¶ 21. Johnson submits the alternative argument that his counsel’s performance was ineffective for the failure to object to the State’s remarks at trial and the failure to request a limiting instruction. In reviewing an ineffective assistance of counsel claim, we utilize the two-prong test in Strickland v. Washington, 466 U.S. 668, 677, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which states that the defendant “must prove (1) that counsel’s performance was deficient, and (2) but for the deficiencies, the trial court outcome would have been different.” Ward v. State, 914 So.2d 332, 336 (¶ 12) (Miss.Ct.App.2005) (citing Gatewood v. State, 909 So.2d 754, 756 (¶ 5) (Miss.Ct.App.2005)).

¶ 22. As we found that the State’s remarks in closing argument did not constitute reversible error, we cannot conclude that counsel’s failure to object was ineffective assistance of counsel. Further, we cannot find that counsel’s failure to request a limiting instruction rendered his performance ineffective. Johnson claims that the limiting instruction was needed to cure “the error developed by the prosecution’s misconduct and should have instructed the jury to limit the effect of the prior inconsistent statement.” Again, no reversible error existed in regard to the State’s remarks. Moreover, any inconsistencies in the statement were related to the second count, for which Johnson was not convicted.

¶ 23. Accordingly, we find that defense counsel’s performance was not ineffective as it did not affect the outcome of the trial. This issue is without merit.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIFTEEN YEARS TO SERVE WITHOUT BENEFIT OF PAROLE, FIFTEEN YEARS SUSPENDED, AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . To protect the identity of victims of sexual abuse, we have substituted fictitious names for the victim and her family members.


text:
    Frank James WESTBROOK, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01717-COA.
    Court of Appeals of Mississippi.
    Nov. 8, 2011.
    Erin Elizabeth Pridgen, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before IRVING, P.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Frank James Westbrook was convicted of selling less than thirty grams of marijuana. The Montgomery County Circuit Court found that Westbrook qualified for enhanced sentencing as both a subsequent drug offender pursuant to Mississippi Code Annotated section 41-29-147 (Rev. 2009) and as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007). Accordingly, the circuit court sentenced Westbrook to six years in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation. Aggrieved, West-brook appeals.

¶ 2. Westbrook is represented by the Mississippi Office of Indigent Appeals. His appellate counsel has filed a brief under Lindsey v. State, 939 So.2d 743 (Miss.2005) and certified that she has searched the record and found no arguable issues on appeal. Having fulfilled our own 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

¶ B. Westbrook’s conviction was set into motion when a confidential informant (Cl) agreed to attempt to purchase drugs from him. Although the Cl had prior Texas convictions for forgery and credit-card abuse, she had served her sentences and was not facing any further charges. That is, the Cl did not agree to purchase drugs from Westbrook as a means to avoid being charged or prosecuted for a crime. Instead, the Cl agreed to do so in exchange for pay.

¶ 4. In February 2010, Agent Clint Walker with the Mississippi Bureau of Narcotics and Bubba Nix, the Montgomery County Sheriff, both met with the CL The Cl was outfitted with surveillance equipment, as was her vehicle. She was also provided with twenty dollars to purchase drugs from Westbrook. Because both law-enforcement officers were males, they limited their pat-down search of the Cl to areas of loose-fitting clothing. They did not search her hair, her shoes, or any “private areas.”

¶ 5. After the “pre-buy” meeting, Agent Walker and Sheriff Nix followed the Cl to Westbrook’s home. The law-enforcement officers kept the Cl within their sight while remaining hidden from Westbrook. The Cl, who had known Westbrook for more than a year, knocked on Westbrook’s door and went inside. Only then did she leave Agent Walker’s and Sheriff Nix’s sight. However, the surveillance equipment on the Cl captured the events that transpired.

¶ 6. Once inside Westbrook’s home, the Cl asked Westbrook whether she could buy some “hard” — a term used to describe crack cocaine. Westbrook explained that he did not have any. The Cl then asked Westbrook to sell her twenty dollars worth of marijuana. Westbrook sold the Cl four small bags of marijuana. Five minutes after the Cl went inside Westbrook’s home, she left with the marijuana that she had purchased.

¶ 7. Immediately after the transaction, the Cl had a “post-buy” meeting with Agent Walker and Sheriff Nix. The Cl gave the marijuana to Agent Walker, who immediately placed it in an evidence bag and marked it before tendering it to the Mississippi Crime Laboratory. Next, the Cl, Agent Walker, and Sheriff Nix watched the video that was captured by the surveillance equipment that had been on the Cl’s person. Agent Walker prepared a statement for the Cl’s signature. The Cl signed the statement, although it indicated that she had purchased crack cocaine from Westbrook, instead of marijuana.

¶ 8. Westbrook was subsequently indicted and charged with selling less than thirty grams of marijuana. The indictment against Westbrook also alleged that he qualified for enhanced sentencing as a subsequent drug offender as well as a habitual offender. Westbrook’s trial counsel filed a motion for discovery, requesting, among other things, the names and addresses of all witnesses that the prosecution proposed to call, copies of any statement the prosecution expected to submit, a copy of West-brook’s criminal record, and any exculpatory material concerning Westbrook.

¶ 9. At trial, the prosecution called Agent Walker; the Cl; and Archie Nichols, a “forensic scientist specializing in the identification of controlled substances.” Agent Walker and the Cl testified consistently with the facts discussed above. They also testified that the portion of the Cl’s statement that indicated Westbrook had sold her crack cocaine was a mistake. They both clarified that Westbrook had sold the Cl marijuana, rather than crack cocaine. Westbrook’s trial counsel vigorously cross-examined Agent Walker and the Cl regarding the Cl’s motivation for acting on behalf of the government, the limited pat-down search of the Cl, and the chain of custody of the marijuana. Nichols, an employee of the Mississippi Crime Laboratory, testified that he tested the substance that Agent Walker had delivered to the crime laboratory. Nichols further testified that the substance was 2.8 grams of marijuana. Again, Westbrook’s trial counsel vigorously cross-examined Nichols. After Nichols testified, the prosecution rested its case-in-chief.

¶ 10. After being informed that it was his decision whether to testify, as well as other matters that relate to that decision, Westbrook chose not to testify. He rested without calling any witnesses. After the prosecution finally rested and the parties presented their closing arguments, the jury retired to deliberate. Less than thirty minutes later, the jury found Westbrook guilty of selling less than thirty grams of marijuana.

¶ 11. During Westbrook’s sentencing hearing, the prosecution presented evidence that Westbrook had two prior felony convictions arising from different circumstances-each carrying a sentence of at least one year. The evidence further indicated that Westbrook had previously been convicted of selling a controlled substance. Consequently, the circuit court found that Westbrook qualified for enhanced sentencing as a subsequent drug offender and a habitual offender. Accordingly, the circuit court sentenced Westbrook to the maximum possible sentence under the circumstances, which was six years in the custody of the MDOC without eligibility for parole or probation. Westbrook appeals.

ANALYSIS

¶ 12. In Lindsey, 939 So.2d at 748 (¶ 18), 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. Specifically, the Lindsey court stated:

(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).

¶ 13. Westbrook’s appellate counsel complied with the requirements set forth in Lindsey. She filed a brief in which she states that she “diligently searched the procedural and factual history of this criminal action and scoured the record” and found no arguable issues on appeal. West-brook’s attorney specifically asserts that she examined: (1) the reasons for West-brook’s arrest and the circumstances surrounding it, (2) any possible violations of Westbrook’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-eounsel claims. Westbrook’s attorney further states that she informed Westbrook that she found no arguable issues and that she advised West-brook of his right to file a pro se brief. However, Westbrook did not file a pro se brief.

¶ 14. 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, which falls within the sentencing parameters regarding a conviction for selling marijuana as a subsequent drug offender under section 41-29-147 and a habitual offender under section 99-19-81 of the Mississippi Code Annotated.

¶ 15. THE JUDGMENT OF THE MONTGOMERY COUNTY CIRCUIT COURT OF CONVICTION OF THE SALE OF LESS THAN THIRTY GRAMS OF MARIJUANA AND SENTENCE AS A SUBSEQUENT DRUG OFFENDER AND A HABITUAL OFFENDER OF SIX YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONTGOMERY COUNTY.

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

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


author: MAXWELL, J„

text:
    Donald Mark EDWARDS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00718-COA.
    Court of Appeals of Mississippi.
    Nov. 8, 2011.

      George S. Shaddock, Pascagoula, attorney for appellant.

      Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   MAXWELL, J„

for the Court:

¶ 1. Donald Mark Edwards appeals his life sentence. A jury convicted him of possession of oxycodone and acetaminophen. Finding Edwards had been convicted of three prior felonies, two for simple assault on police officers, the circuit court followed the mandate of Mississippi Code Annotated section 99-19-83 (Rev.2007) and sentenced Edwards to life imprisonment without eligibility for parole or probation. Because we find Edwards’s life sentence was neither obtained by improper procedure nor grossly disproportionate, we affirm.

FACTS AND TRIAL PROCEEDINGS

¶ 2. On August 18, 2008, a deputy sheriff pulled into Edwards’s driveway to serve a warrant. Edwards, who was in the driveway changing a tire, immediately ran toward the nearby woods. While fleeing, Edwards dropped a plastic bag containing pills. The Mississippi Crime Laboratory verified the bag contained ninety-six dosing units of Endocet, a pain reliever containing a mixture of oxycodone and acetaminophen.

¶ 3. A Perry County grand jury charged Edwards with possessing more than forty dosing units of oxycodone and acetaminophen, a Schedule II controlled substance. See Miss.Code Ann. §§ 41-29-115(A)(a)(l)(xiii) (Rev.2009) (listing oxyco-done as a Schedule II controlled substance), -139(c)(1) (Supp.2011) (penalizing illegal possession of Schedule II controlled substances). The indictment notified Edwards of the State’s intent to seek enhanced punishment based on his status as a habitual offender under Mississippi Code Annotated section 99-19-83. The indictment listed four previous felony convictions: (1) simple assault on a police officer in 1992, (2) uttering a forgery in 1996, (3) simple assault on a police officer in 2004, and (4) grand larceny in 2004. For each of these felonies, Edwards served more than one year in prison.

¶ 4. At the close of trial, the jury found Edwards guilty of the possession charge. The circuit judge then sent the jury out of the courtroom. At this point, he asked the State to present evidence on Edwards’s prior felony convictions. The State offered the “pen packs” on the two simple-assault convictions and the grand-larceny conviction. The prosecutor also noted the amount of time served for each conviction. Edwards made no objection. The circuit judge found Edwards to be a habitual offender under section 99-19-83 and sentenced Edwards to life without eligibility for parole or probation.

DISCUSSION

¶ 5. Edwards appeals his sentence only. He does not challenge the possession conviction. He claims his rights were violated by (1) the circuit court’s failure to provide a separate, meaningful hearing on his habitual-offender status and (2) the circuit court’s imposition of a grossly disproportionate sentence.

I. Habitual-offender Hearing

¶ 6. “In cases involving enhanced punishment for subsequent offenses under state statutes: ... If the defendant is convicted or enters a plea of guilty on the principal charge, a hearing before the court without a jury will then be conducted on the previous convictions.” URCCC 11.03. See Nathan v. State, 552 So.2d 99, 106 (Miss.1989) (“When habitual offender status is alleged and where the accused goes to trial, the trial court must hold a separate hearing without a jury to determine whether habitual status should be imposed”).

¶ 7. Edwards alleges his habitual-offender status hearing was not truly separate because the jury had not been officially dismissed by the court. But the record shows, after the jury announced its verdict, the circuit judge instructed the jury to leave the courtroom. He then proceeded to consider Edwards’s previous felonies “without a jury.” We find the circuit judge’s actions not only fulfilled the letter of Rule 11.03’s separate-hearing requirement but also its purpose—to keep the jury from hearing evidence of the previous felonies, so as not to influence its verdict on the present charge. Keyes v. State, 549 So.2d 949, 951 (Miss.1989) (explaining “the reason for a separate hearing is to preclude jury knowledge of prior convictions, except as otherwise admissible”); see also M.R.E. 404(b).

¶ 8. Edwards’s indictment gave notice of the State’s intent to seek an enhanced sentence and listed the predicate felonies it intended to prove. And during sentencing, the State established through the pen packs that Edwards had served separate sentences of over a year imprisonment on at least three different felonies. Frazier v. State, 907 So.2d 985, 991 (¶ 16) (Miss.Ct.App.2005). Two of the felonies were for simple assault of a police officer, which this court has deemed a crime of violence. Cook v. State, 910 So.2d 745, 746 (¶ 3) (Miss.Ct.App.2005). We find the circuit judge’s separate consideration of the qualifying felonies proper and note that at no point did Edwards’s counsel move for a continuance or object to the State’s evidence. See Roach v. State, 938 So.2d 863, 870 (¶ 21) (Miss.Ct.App.2006) (finding defendant was properly sentenced as a habitual offender because the trial court held a separate hearing after jury was excused where evidence was presented of prior felonies, to which defendant did not object); Crouch v. State, 826 So.2d 772, 775-76 (¶ 4) (Miss.Ct.App.2002) (finding the requirements for habitual-offender sentencing had been satisfied because the defendant was properly indicted as a habitual offender and had ample opportunity to challenge State’s evidence of prior convictions).

¶ 9. To impose an enhanced sentence as a habitual offender, “[a]ll that is required is that the accused be properly indicted as a[ ] habitual offender, that the prosecution prove the prior offenses by competent evidence, and that the defendant be given a reasonable opportunity to challenge the prosecution’s proof.” Keyes, 549 So.2d at 951 (internal citations omitted). We find these requirements were met and that the circuit judge correctly sentenced Edwards as a habitual offender.

II. Life Sentence

¶ 10. Edwards next argues his life sentence was grossly disproportionate to his crime. Edwards raises the question of disproportionality only in terms of his possession conviction. He suggests his life sentence is unduly harsh because: (1) the controlled-substance-possession statute he violated, Mississippi Code Annotated section 41-29-139(c)(l)(E), carries a statutory penalty of ten to thirty years’ imprisonment for the type and amount of drugs he possessed; and (2) he has no prior drug convictions.

¶ 11. But the circuit judge sentenced Edwards under section 99-19-83, not section 41-29-139. This statute mandates a life sentence if the statutory requirements have been met irrespective of the statutory penalty for the present felony. Miss.Code Ann. § 99-19-83. Unlike the more specific habitual dray-offender statute, Mississippi Code Annotated section 41-29-147 (Rev.2009), the general habitual-offender statute, section 99-19-83, does not require that the prior felonies be drug related — or related to the present conviction. Compare Miss.Code Ann. § 41-29-147 with § 99-19-83. Instead, “[section] 99-19-83 is obviously drawn to punish as habitual offenders those persons who have been convicted of two prior felonies, one being a crime of violence, and who have served two separate sentences of one year or more in a state or federal penal institution.” Huntley v. State, 524 So.2d 572, 575 (Miss.1988).

¶ 12. Edwards describes his life sentence as vindictive and pursued merely because the county prosecutors wanted to “get rid of’ him. But the Mississippi Supreme Court, addressing section 99-19-83, has stated:

The purpose of the recidivist statute such as that involved here is not to simplify the task of prosecutors, judges, or juries. Its primary goals are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced to other crimes.

Huntley, 524 So.2d at 575 (quoting Rummel v. Estelle, 445 U.S. 263, 284, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980)).

¶ 13. We find no evidence in the record of improper motives in applying section 99-19-83. Edwards neither challenges the qualifying nature of any of the charged predicate offenses, nor does he otherwise contest he met the statute’s criteria. And the Mississippi Supreme Court and this court have repeatedly affirmed the constitutionality of life sentences under this statute. E.g., Huntley, 524 So.2d at 575 (holding section 99-19-83’s life-sentence penalty does not fail the proportionality test in Solem v. Helm, 463 U.S. 277, 291, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) and is not cruel and unusual punishment); Bonner v. State, 962 So.2d 606, 611(20) (Miss.Ct.App.2006) (finding imposition of life sentence under section 99-19-83, based on gravity of current and predicate offenses, “does not give rise to an inference of gross disproportionality”).

¶ 14. We affirm the circuit court’s application of this statute to sentence Edwards as a habitual offender to life imprisonment without the benefit or eligibility for parole or probation.

¶ 15. THE JUDGMENT OF THE PERRY COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF MORE THAN FORTY DOSAGE UNITS OF OXYCODONE AND ACETAMINOPHEN, A SCHEDULE II CONTROLLED SUBSTANCE, AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON AND RUSSELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT. MYERS, J., NOT PARTICIPATING.

      . "Pen packs,” or penitentiary packages, "are the records maintained on inmates sentenced to the custody of the Department of Corrections.” Jasper v. State, 858 So.2d 149, 152(11) (Miss.Ct.App.2003); see Russell v. State, 670 So.2d 816, 829 (Miss.1995) (describing types of documents contained in pen packs, including sentence computation record); Frazier v. State, 907 So.2d 985, 991—92(13-18) (Miss.Ct.App.2005) (finding "pen packs” were sufficient evidence of prior convictions and corresponding sentencing to prove defendant was a statutory habitual offender).


text:
    Irene WRIGHT, Appellant v. The UNIVERSITY OF MISSISSIPPI MEDICAL CENTER, a Member of the Mississippi Institutions of Higher Learning, Appellee.
    No. 2010-WC-01881-COA.
    Court of Appeals of Mississippi.
    Nov. 22, 2011.

      John Hunter Stevens, Jackson, attorney for appellant.
    Joseph T. Wilkins III, Jackson, attorney for appellee.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. Irene Wright, a certified nurse’s assistant (CNA) employed by the University of Mississippi Medical Center (UMMC), suffered a back and neck injury while on the job. Wright filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission). After receiving temporary disability benefits and medical payments, she returned to work. However, finding she could no longer perform her duties as a CNA, she quit and was referred to a vocational counselor. Almost two years later, Wright obtained other employment with UMMC as a file clerk. She subsequently quit her position as file clerk after five months, claiming she was unable to maintain the job due to her injury. Wright contended she was entitled to permanent disability benefits due to loss of wage-earning capacity. Her claim was denied by the Commission, and on appeal, the Hinds County Circuit Court upheld the Commission’s findings. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On March 7, 2002, Wright, a twenty-nine-year old CNA employed by UMMC in Jackson, Mississippi, suffered a neck and back injury when she and five other employees attempted to move a severely overweight patient. On September 16, 2003, Wright filed a petition to controvert, and UMMC paid temporary total disability benefits totaling $23,388.13 and medical payments of $14,859.30 from March 13, 2002, until April 4, 2004. However, Wright maintained that she was entitled to permanent disability due to a loss of wage-earning capacity.

¶ 3. On March 19-20, 2003, Dr. Rahul Vorha conducted a functional capacity evaluation (FCE) on Wright. His report stated that it was difficult to determine what Wright’s abilities and limitations were because she was “self-limited by complaints of low back and neck pain.” On July 25, 2003, Dr. Denzil Robertson, Wright’s internist, stated in a memo that Wright had reached “maximum treatment benefit” and that she could return to work “in a sedentary occupation, but is prohibited from duties that might stress her back[.]”

¶ 4. In May 2004, Wright returned to work as a CNA; however, after approximately two months, she quit because the job requirements were too strenuous on her back. She was referred to a vocational-rehabilitation counselor, Bruce Brawner, for assistance in obtaining other employment.

¶ 5. Wright was discharged from physical therapy on February 2, 2005. Dr. Vo-rha conducted a second FCE on September 7-8, 2005. As in the 2003 report, Dr. Vorha concluded that Wright was “self-limited by complaints of pain stopping herself on all weighted capacities, trunk bending” and noted inconsistencies. Dr. Vorha released Wright from his care on December 15, 2005, allowing her to return to work with a fifty-pound lifting restriction.

¶ 6. Wright began working as an Avon representative. Wright also obtained a job with UMMC as a file clerk and worked at this position from April 25, 2006, to September 15, 2006. The file-clerk position required sitting at a desk and standing at a copier; no heavy lifting was involved. However, Wright left the job as a file clerk, claiming her injury had resurfaced, and she was unable to perform her duties. She consulted with a neurosurgeon, Dr. Adam Lewis, in October 2006, who recommended rehabilitation and physical therapy.

¶ 7. Brawner, the vocational counselor, continued to work with Wright and presented her with forty-four potential job opportunities between February 2007 and June 2007. Brawner conducted follow-up on several of the potential employers, but the majority of them had no knowledge of Wright or whether she had filled out an application. One company did say that it had her resume and was interested in talking to her. At the subsequent hearing regarding her claim for benefits, Wright stated that she was currently employed as a part-time cashier at the gift shop her husband owns and earned approximately $100 per week. She also still worked part-time with Avon.

¶ 8. A hearing on Wright’s request for permanent disability benefits was held on September 21, 2009. The administrative judge denied Wright’s claim on February 25, 2010, finding that Wright “failed to prove that she suffered any permanent disability and/or loss of wage-earning capacity.” Wright filed a petition for review, and the Commission affirmed the judge’s findings on June 10, 2010.

¶9. Wright appealed the Commission’s order to the Hinds County Circuit Court, which affirmed the decision, finding it “was supported by substantial evidence.” Upon review, we affirm the circuit court’s judgment.

STANDARD OF REVIEW

¶ 10. “Absent an error of law, this Court will not overturn a decision of the Mississippi Workers’ Compensation Commission if the Commission’s decision is supported by substantial credible evidence.” Wal-Mart Stores, Inc. v. Patrick, 5 So.3d 1119, 1128 (¶ 10) (Miss.Ct.App.2008) (citing Congleton v. Shellfish Culture, Inc., 807 So.2d 492, 495 (¶ 8) (Miss.Ct.App.2002)). However, we will reverse the decision if the order “is clearly erroneous and contrary to the overwhelming weight of the evidence.” Id. (citation omitted).

DISCUSSION

¶ 11. Wright claims that the Commission’s findings are against the weight of the evidence, and she should have been awarded permanent benefits for loss of wage-earning capacity. There is no dispute Wright cannot perform her duties as a CNA. However, we find no merit to Wright’s assertion that she has demonstrated a loss of wage-earning capacity.

¶ 12. The Commission views the evidence as a whole to “determine the fact and extent of a claimant’s loss of wage-earning capacity[.]” Scott v. KLLM, Inc., 37 So.3d 713, 717 (¶ 16) (Miss.Ct.App.2010) (citing DeLaughter v. S. Cent. Tractor Parts, 642 So.2d 375, 379 (Miss.1994)). Factors to be considered are the amount of education and training which the claimant has had, his inability to work, his failure to be hired elsewhere, the continuance of pain, and any other related circumstances. Mixon v. Greywolf Drilling Co., LP, 62 So.3d 414, 419 (¶ 16) (Miss.Ct.App.2010) (citing McGowan v. Orleans Furniture, Inc., 586 So.2d 163, 167 (Miss.1991)). However, “[t]he claimant bears the burden of proving a loss of wage-earning capacity.” Int’l Staff Mgmt. v. Stephenson, 46 So.3d 367, 373 (¶24) (Miss.Ct.App.2010) (citing McCarty Farms, Inc. v. Kelly, 811 So.2d 250, 254 (¶ 11) (Miss.Ct.App.2001)).

¶ 13. “If the claimant’s post-injury wages are equal to or exceed the pre-injury wages, then ‘a rebuttable presumption arises that the claimant has experienced no loss of wage-earning capacity.’ ” Mosby v. Farm Fresh Catfish Co., 19 So.3d 789, 794 (¶ 10) (Miss.Ct.App.2009) (quoting Neshoba County Gen. Hosp. v. Howell, 999 So.2d 1295, 1298 (¶ 9) (Miss.Ct.App.2009)). Wright claims she had averaged a weekly income of $321 as a CNA; yet, her salary as a file clerk was significantly lower at an hourly rate of $6.12. Testimony during Wright’s deposition clarified that her CNA salary contained a differential for night shifts; therefore, she occasionally made upward of approximately $8.05 an hour. However, a document from UMMC’s Human Resources Department, dated April 17, 2006, shows that Wright’s base salary as a CNA was $7.16 an hour and that she was given this same salary as a file clerk. Furthermore, at her deposition, Wright was asked: “And this shows you were paid [as a file clerk] $7.38 an hour. Does that sound about right, that you were paid that?” Wright replied: “Yes, sir.” The record also shows Wright got a raise on June 1, 2006, to $7.65 an hour. Therefore, we find her claim, that her salary as a file clerk was only $6.12 an hour, is not supported by the evidence presented to the Commission.

¶ 14. Although Wright claimed her injury prevented her from continuing to work as a file clerk, Wright’s supervisor for the file-clerk position, Bridget Booker, said that the job did not include any heavy lifting. It merely required sitting at a desk and standing at the copier. Also, the files were rarely more than three pounds each. Brawner, the vocational counselor, testified that “the job fell within all the guidelines, the FCE as embraced by Dr. Robertson and by Dr. Vorha.” However, Wright quit without notice in September 2006, saying she was in pain. Booker advised Wright to go to the emergency room, but Wright said she had her own doctor. Booker testified Wright regularly wore high heels to work, although it was not required for her to do so. Also, no physician who examined Wright indicated she could not perform the duties required by the file-clerk position.

¶ 15. Brawner attempted to assist Wright in finding employment by providing her with information on forty-four potential employers. Wright has a high school education and received training as a nurse’s assistant through job corps. The majority of the jobs provided by Brawner had a listed salary equal to or higher than Wright’s CNA wages and were desk/sedentary positions. In fact, one of the job opportunities presented to Wright had a starting annual salary of approximately $30,000. Wright stated at the hearing that she went to several of the employers, but they did not let her fill out an application. However, when Brawner contacted several of the employers to follow up, they could not verify whether she had completed an application or had contacted them.

¶ 16. Finally, at the hearing, Wright confirmed that, since 2008, she has made approximately $75 to $100 per week from her Avon business. Further, although Wright’s 1099-MISC income federal tax form from Avon for 2006 showed she received $0 in non-employee compensation, her 2006 federal income tax return showed that she received $9,531.00 in net profit business income from Avon.

CONCLUSION

¶ 17. There is substantial evidence Wright is able to work and earn a salary equal to her CNA salary. Consequently, we find the Commission’s denial of permanent disability benefits was not against the overwhelming weight of the evidence, and we affirm the judgment of the circuit court.

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

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

      . Wright filed seven requests for extension of discovery between July 1, 2004, and October 19, 2006.


author: LEE, C.J.,

text:
    I.V. SMITH Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00190-COA.
    Court of Appeals of Mississippi.
    Nov. 22, 2011.

      I.V. Smith Jr., appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY AND FACTS

¶ 1. On March 3, 2008, I.V. Smith Jr. pleaded guilty in the Harrison County Circuit Court to possession of a controlled substance. Smith was sentenced as a habitual offender to serve a ten-year sentence in the custody of the Mississippi Department of Corrections. Smith’s two prior felony convictions were for the sale of a controlled substance and possession of a controlled substance.

¶ 2. Smith filed a motion for post-conviction relief (PCR) on October 5, 2010, alleging that he should not have been sentenced as a habitual offender. The trial court denied Smith’s PCR motion. In his appeal, Smith argues he was not a habitual offender, and he was entitled to receive meritorious earned time.

STANDARD OF REVIEW

¶ 3. A trial court’s denial of a PCR motion will not be reversed absent a finding that the trial court’s decision to deny the motion was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

¶ 4. Smith argues that he was unlawfully sentenced as a habitual offender because he was ordered to serve concurrent sentences for the two prior felony convictions. Smith was sentenced under Mississippi Code Annotated section 99-19-81 (Rev.2007), which states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Smith contends that serving concurrent sentences for his prior felony convictions does not meet the requirement that he be sentenced to “separate terms of one year or more.” However, this Court has held that “[c]oncurrent sentences are ‘separate’ terms under section 99-19-81.” Collins v. State, 817 So.2d 644, 660 (¶60) (Miss.Ct.App.2002); see also Williams v. State, 24 So.3d 360, 364-65 (¶ 11) (Miss.Ct.App.2009). This issue is without merit.

¶ 5. Smith also contends that he is entitled to meritorious earned time. However, Smith did not raise this issue in his PCR motion filed in the trial court; thus, this issue is procedurally barred. Chandler v. State, 44 So.3d 442, 443 (¶ 7) (Miss.Ct.App.2010). Notwithstanding the procedural bar, this issue is without merit. We note that the proper avenue for Smith’s grievance concerning earned time is through the MDOC Administrative Remedies Program (ARP). Brown v. State, 54 So.3d 882, 884 (¶ 9) (Miss.Ct.App.2011). It is unclear from the record if Smith has availed himself of the ARP. Regardless, pursuant to Mississippi Code Annotated section 47-5-139(l)(b) (Rev. 2011), inmates who have been convicted as habitual offenders are not entitled to earned time. Subsequently, Smith would not be entitled to any earned-time credit.

¶ 6. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


text:
    Ricky M. JACKSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01402-COA.
    Court of Appeals of Mississippi.
    Nov. 22, 2011.
    Ricky M. Jackson, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before IRVING, P.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Ricky M. Jackson was convicted of aggravated assault and sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Jackson filed a direct appeal. Jackson v. State, 42 So.3d 613 (Miss.Ct.App.2010). While Jackson’s direct appeal was still pending, Jackson filed five pro se motions in the Pike County Circuit Court. The circuit court treated Jackson’s motions as one single motion for post-conviction relief and subsequently entered an order stating that “Jackson’s case has been directly appealed ... and therefore this Court has no jurisdiction to hear Jackson’s claim without leave of the [Mississippi] Supreme Court.” Consequently, the circuit court denied Jackson’s motions.

¶ 2. Undeterred, Jackson filed three more motions in which he collaterally attacked his conviction for aggravated assault. He then appealed the circuit court’s denial of his initial barrage of motions for post-conviction relief. Subsequently, the circuit court entered an order denying Jackson’s second barrage of motions for post-conviction relief. Jackson has not appealed the circuit court’s second decision.

STANDARD OF REVIEW

¶ 3. The circuit court’s order indicates that it “denied” Jackson’s motion for post-conviction relief. However, the circuit court’s disposition is more accurately characterized as summarily dismissing Jackson’s motion, since the circuit court declined to consider the merits of Jackson’s motion due to the circuit court’s lack of jurisdiction. “This Court will not disturb a trial court’s dismissal of a petition for post-conviction relief unless the trial court’s decision was clearly erroneous.” Wardley v. State, 37 So.3d 1222, 1223-24 (¶ 4) (Miss.Ct.App.2010).

ANALYSIS

¶4. Jackson filed numerous motions, which the circuit court treated as one single motion for post-conviction relief, while his direct appeal was still pending. The Mississippi Supreme Court addressed a similar set of circumstances in Connell v. State, 691 So.2d 1004, 1006 (Miss.1997). In Connell, a petitioner prematurely filed a petition for post-conviction relief while his direct appeal was still pending. Id. The supreme court held that the appropriate resolution was to “affirm the dismissal without prejudice.” Id. The supreme court added that the petitioner in Connell “may still present the motion for post-conviction relief,” but he must do so according to the procedure set forth in Mississippi Code Annotated section 99-39-7 (Supp.2011). We caution Jackson that filing any further motions for post-conviction relief without first obtaining the supreme court’s permission to do so will render any such motions procedurally barred. Wardley, 37 So.3d at 1225(118). As for Jackson’s present appeal, we affirm the circuit court’s summary dismissal of Jackson’s motion for post-conviction relief for lack of jurisdiction.

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

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

      . On November 30, 2009, Jackson filed a motion for records and transcripts and a motion styled as a "motion for criminal contempt.” On December 3, 2009, Jackson filed a "motion to provide new real evidence," a "motion to provide proof of perjury,” and a "motion to set aside judgement [sic].”

      . On September 7, 2010, Jackson filed another document with the circuit court. Within that document, Jackson requested criminal-background checks on two people and himself. He also collaterally attacked the evidence supporting his conviction for aggravated assault. Three days later, Jackson filed another document with the circuit court. In that filing, Jackson requested that he be released on bail pending the outcome of his request for post-conviction relief.