author: MYERS, P.J., for the Court: GRIFFIS, J.,

text:
    Brian ROBISON, Lisa Robison and Tess Robison, Appellants v. ENTERPRISE LEASING COMPANY-SOUTH CENTRAL, INC., Appellee.
    No. 2009-CA-00383-COA.
    Court of Appeals of Mississippi.
    July 20, 2010.
    Rehearing Denied March 22, 2011.
    T.K. Moffett, Tupelo, attorney for appellants.
    Dominic John Ovella, David Bishop Estes, Sean Patrick Mount, attorneys for appellee.
    Before MYERS, P.J., ISHEE and ' ROBERTS, JJ.
   MYERS, P.J., for the Court:

¶ 1. This case stems from a one-vehicle accident that occurred at approximately 11:43 p.m. on June 10, 2005. Tess Robison was a passenger in a vehicle driven by Gregory Knight. Knight was driving at a high rate of speed when he lost control of the vehicle and allowed it to leave the highway. In the resulting accident, both Knight and Robison were thrown from the vehicle. Knight was killed, and Robison suffered severe injuries.

¶ 2. Robison and her parents, Brian and Lisa Robison, brought suit against Knight’s estate, his father, James Knight, and Enterprise Leasing Company — South Central, Inc. The Robisons alleged that they had suffered damages — Robison’s personal injuries and lost income of all three plaintiffs — as a result of Knight’s negligent operation of the vehicle. They also alleged that Knight’s father had negligently entrusted him- with the vehicle and that Enterprise had negligently rented the vehicle to James Knight, with the actual knowledge that the younger Knight would operate it. The claims against Knight’s estate and his father were subsequently resolved, and both of those defendants were dismissed from the suit.

¶ 3. Enterprise then filed a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Mississippi Rules of Civil Procedure. Enterprise attached as exhibits to the motion a police report describing the accident, a car rental contract between James Knight and Enterprise, and a title to the vehicle at issue. In their response, the Robisons included an affidavit from James Knight and excerpts from his deposition testimony. None of these exhibits are found in the pleadings. Enterprise’s motion was ultimately granted, and the Robisons, aggrieved by the judgment, now appeal. The sole issue on appeal is whether the trial court erred in granting Enterprise’s motion to dismiss.

DISCUSSION

1. Nature of the Motion

¶ 4. “A motion to dismiss for failure to state a claim upon which relief can be granted challenges the legal sufficiency of the complaint[ ] and raises a question of law.” Favre Prop. Mgmt. v. Cinque Bambini, 863 So.2d 1037, 1042 (¶ 14) (Miss.Ct.App.2004). However, as we have said, various exhibits and other matters outside the record were submitted by the parties to the trial court. The trial court appeared to rely on some of the facts established through this evidence outside the pleadings, and its judgment recites that the trial court considered the parties’ respective motions detailed above and, consequently, matters outside the pleadings. Likewise, in their briefs on appeal, both parties have repeatedly cited to evidence appearing in the record but outside the pleadings. We therefore construe the motion at issue as one for summary judgment under Mississippi Rule of Civil Procedure 56. Davis v. City of Clarksdale, 18 So.3d 246, 248-49 (¶ 8) (Miss.2009) (citing Gulledge v. Shaw, 880 So.2d 288, 292 (¶¶ 7-9) (Miss.2004)).

¶ 5. The dissent argues that the supreme court’s decision in Davis, handed down on September 17, 2009, has been overruled or superseded by Sullivan v. Tullos, 19 So.3d 1271 (Miss.2009), which was handed down five weeks later. However, the holding of Sullivan — that the trial court must give ten days’ notice of its intent to convert a Rule 12(b)(6) motion to a motion for summary judgment under Rule 56 — has been the law in Mississippi since 1994. See id. at 1275 (¶ 15) (citing Palmer v. Biloxi Reg’l Med. Ctr., 649 So.2d 179, 183 (Miss.1994)). Likewise, the holding in Davis— that where the original motion is styled a 12(b)(6) motion but contains exhibits outside the pleadings and is treated by the parties and the court as a summary judgment motion, it should be reviewed as such on appeal — was not new; it has been the law in Mississippi since at least 2004. See Rein v. Benchmark Const. Co., 865 So.2d 1134, 1142 (¶ 24) (Miss.2004). If the two cases necessarily present a conflict in their holdings, the supreme court has not noticed it.

¶ 6. The dissent may very well be correct in its concern that there is a potential conflict between the two holdings. Nonetheless, the facts of the instant case squarely align with Davis and allay any concern as to whether the Robisons had notice of the nature of the motion and an opportunity to respond; this is the heart of the ten-day notice requirement. Mississippi Rule of Civil Procedure 12(b) states in pertinent part that:

If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56....

See also Sullivan, 19 So.3d at 1274-75 (¶ 15).

¶ 7. In Sullivan, the trial court converted a genuine 12(b)(6) motion to dismiss to a motion for summary judgment after minimal evidence outside the pleadings was offered during the hearing on the motion. Id. at 1273 (¶ 5). The supreme court held that the trial court erred in entering summary judgment without offering the plaintiffs a continuance to conduct discovery or an opportunity for another hearing on the newly converted summary judgment motion. Id. at 1275 (¶ 19).

¶ 8. Although couched as one under Rule 12(b)(6), Enterprise’s original motion contained exhibits outside the pleadings. The instant case, therefore, resembles Davis rather than Sullivan; in Davis, the “conversion” stemmed not from the trial court’s decision to convert the motion in response to evidence offered at the hearing, but from the original motion itself. See Davis, 18 So.3d at 248 (¶ 8). Moreover, notice of the nature of the motion and an opportunity to respond are not at issue in the instant case. The original motion was filed on March 3, 2008, and a response from the Robisons followed on March 14. Although styled a response to the motion to dismiss, it too, in substance, was a response to a summary judgment motion. The Robisons attached additional exhibits outside the pleadings — an affidavit and excerpts from a deposition — and they urged the court to find a question of fact for the jury. Enterprise’s response, filed on March 24, again urged the Court to consider matters outside the pleadings. A notice of hearing on the motions was filed on March 31, and the hearing was set for and held on July 1, 2008, three months after the notice of the hearing and'almost four months after exhibits outside the pleadings were offered with the initial motion. Two weeks after the hearing, the Robisons offered a supplemental response, purporting to enumerate undisputed facts and urging the trial court to find “genuine issues of material fact.” This is clearly addressed to a summary judgment motion; it does not resemble a response to a motion to dismiss for failure to state a claim under Rule 12(b)(6). The trial court did not rule on the motion until February 5, 2009, nearly a year after the original motion — with exhibits outside the pleadings— was filed.

¶ 9. On appeal, both parties have again treated this, in substance, as‘an appeal from a grant of summary judgment. The Robisons again cite to exhibits outside the pleadings, and they have never complained of error in treating this as a motion for summary judgment; the dissent would raise this issue sua sponte. Moreover, the Robisons had an opportunity to and did conduct discovery, and the first motion with exhibits outside the pleadings was filed nearly four months before the hearing and almost a year before the judgment was entered.

¶ 10. Throughout the proceedings, the parties and the court have called this a motion to dismiss under Rule 12(b)(6), but they have treated it like a summary judgment motion. The Robisons had notice of the nature of the motion and an opportunity to respond. Rule 12(b)’s requirement of an opportunity to respond and Rule 56(c)’s requirement that a summary judgment motion be served ten days before the hearing have been more than satisfied in this case.

¶ 11. We review a trial court’s grant of summary judgment de novo. Treasure Bay Corp. v. Ricard, 967 So.2d 1235, 1238 (¶ 10) (Miss.2007). This Court “examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So.2d 977, 979 (¶ 7) (Miss.2001) (citation omitted). The moving party has the burden of demonstrating that no genuine issue of material fact exists,- and the nonmoving party must be given the benefit of doubt concerning the existence of a material fact. Id. “If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party’s favor.” Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶ 5) (Miss.2005). “A fact is material if it tends to resolve any of the issues properly raised by the parties.” Moss v. Batesville Casket Co., Inc., 935 So.2d 393, 398 (¶ 16) (Miss.2006) (citation and internal quotations omitted).

2. Summary Judgment

¶ 12. The Robisons argue that the facts, taken in the light most favorable to their case, present the following scenario: Knight, who was eighteen years of age, had recently been involved in an automobile accident. Knight went to Enterprise’s location in Tupelo, Mississippi, to rent a vehicle for his use while his personal automobile was repaired. Enterprise, however, refused to rent an automobile to Knight because he was under twenty-one years of age. Knight then telephoned his father, who traveled to the Enterprise location in Tupelo. Enterprise then allowed Knight’s father to rent the vehicle, with the full knowledge that Knight would operate it. Knight’s father also stated in his deposition that he told Enterprise Knight had “gotten a few tickets.” Knight then negligently operated the vehicle, causing the Robisons’ injuries.

¶ 13. The Robisons argue that a question of fact exists as to whether Enterprise negligently entrusted the vehicle to Knight’s father, knowing that Knight— who was under the age of twenty-one— would operate it.

¶ 14. Mississippi law defines negligent entrustment as follows:

One who supplies directly or through a third person a chattel for use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Sligh v. First Nat’l Bank of Holmes County, 735 So.2d 963, 969 (¶32) (Miss.1999) (quoting Restatement (Second) - of Torts § 390).

¶ 15. Enterprise’s principal argument in response is that it is not liable because the rental contract, signed by Knight’s father, stated that “no other driver [was] permitted” to operate the rented vehicle.

¶ 16. The Robisons have essentially argued that Enterprise negligently entrusted the vehicle to Knight, knowing that he was eighteen years of age. The record does indicate that Enterprise had initially refused to rent the car to Knight because of his age, but setting the father’s role aside, the Robisons have failed to show that it would have been negligent to entrust the vehicle directly to Knight in the first place. We agree that negligence may be found in the entrusting of a vehicle to an individual with knowledge of his “youth” or “inexperience,” but the Robisons offer no authority suggesting that this extends to an eighteen-year-old in the operation of an automobile, based on his age alone. Nor have they shown that it could be found negligent to entrust an automobile to an eighteen-year-old who had recently been in an automobile accident and had previously received “a few tickets.” The only authority the Robisons have offered in this respect states that it may be negligent to entrust an automobile to someone who is intoxicated, Dixie Drive It Yourself System Jackson Company v. Matthews, 212 Miss. 190, 203, 54 So.2d 263, 267 (1951), or to a sixteen-year-old with a reputation as a reckless driver who “habitually endangered the lives and property of travelers and pedestrians on the public road,” Anderson v. Daniel, 136 Miss. 456, 465-66, 101 So. 498, 499 (1924).

¶ 17. The proof of negligence offered in this case falls far short of a showing that Enterprise knew or should have known that Knight had a history of reckless driving or other dangerous behavior while operating an automobile. A claim of negligent entrustment cannot be sustained on Knight’s age — eighteen years — alone. We therefore find as a matter of law that no genuine issue of material fact exists as to Enterprise’s negligence, and we affirm the trial court’s grant of summary judgment.

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

KING, C.J., LEE, P.J., BARNES, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR. IRVING, J., .CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION. CARLTON, J„ NOT PARTICIPATING.

GRIFFIS, J.,

dissenting:

¶ 19. For this Court to convert this matter from a Rule 12(b)(6) motion to dismiss to a Rule 56 motion for summary judgment, the Mississippi Supreme Court decision in Sullivan v. Tullos, 19 So.3d 1271, 1274-76 (¶¶ 14-19) (Miss.2009), requires that we provide the non-movant with ten days’ notice. See M.R.C.P. 12 and 56. Therefore, I must respectfully dissent.

¶ 20. In paragraph 4, the majority correctly states the law as stated in Davis v. City of Clarksdale, 18 So.3d 246, 248-49 (¶ 8) (Miss.2009). However, in Sullivan, the supreme court succinctly set forth the procedural rules that apply when a court, any court, converts a motion to dismiss to a motion for summary judgment. Contrary to the majority’s erroneous assertion, I do not “overrule” Davis. Indeed, I recognize the latest pronouncement of the proper application of the procedural rules announced in Sullivan, which both the trial court and this Court are required to follow.

¶ 21. In Sullivan, the court held:

The issue here is whether the trial court acted in accordance with Mississippi law in converting the defendants’ motion to dismiss into a motion for summary judgment. More specifically, the question is whether the trial court was required to give the plaintiffs ten days’ notice prior to the hearing for the converted summary-judgment motion. We find that the trial court did not follow the proper procedure in converting the Rule 12(b)(6) motion into a motion for summary judgment, because timely notice was not given.
Rule 12 of the Mississippi Rules of Civil Procedure sets forth the proper procedure for converting a motion to dismiss into a summary-judgment motion. Rule 12(b) provides in part:
If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56....
Miss. R. Civ. P. 12(b). This Court looks at Rule 12 in conjunction with Rule 56 governing motions for summary judgment. While this Court said in Walton v. Bourgeois, 512 So.2d 698 (Miss.1987), that it is not mandatory to require a ten-day notice of the hearing when a Rule 12 motion is converted, we have more recently held that:
before this Court can determine on appellate review if the non-moving party has had a reasonable time in which to file documentation in opposition to a Rule 12(b)(6) motion that has been converted to a Rule 56 motion for summary judgment, we must determine if the non-moving party has been afforded ten days[’] notice of the court’s intention to conduct a summary[-]judgment hearing on a date certain.
Palmer v. Biloxi Reg’l Med. Ctr., 649 So.2d 179, 183 (Miss.1994) (emphasis added).
Additionally, the Palmer court stated that:
Rule 56(c) states, in part, that a “motion [for summary judgment] shall be served at least ten days before the time fixed for the hearing.” Therefore, the trial court must give the parties ten days[’] notice that it is converting the moving party’s motion to dismiss on the pleadings into a motion for summary judgment. Once the notice required by Rules 12(b) and 56 has been given, the trial court may then properly consider it as a converted motion for summary judgment along with any materials in support of or in opposition to the motion as of a certain day.
Id. (internal citations omitted).
In the instant case, the trial judge converted the defendants’ motion to dismiss into a summary-judgment motion because two exhibits were admitted into evidence during the hearing on the motion to dismiss. The two exhibits were a copy of the appraisal presumptively setting the value of the land at $500 an acre entered by the defendants and a copy of the checks issued on Tullos’s regular account used to purchase the land entered by the plaintiffs. At the hearing, the defendants’ motion to dismiss was the only motion considered by the trial court. The trial court informed the heirs that he would consider the parties’ exhibits and treat the defendants’ motion to dismiss as a motion for summary judgment. At this point, before continuing with a hearing on the converted motion for summary judgment, the trial court was required to give the heirs at least ten days’ notice of the hearing. However, this did not occur. In a case involving similar procedural issues, a Rule 12(b)(6) motion to dismiss was converted into a motion for summary judgment because the parties presented material outside of the pleadings. Jones v. Regency Toyota, Inc., 798 So.2d 474 (Miss.2001). At the hearing on Regency Toyota’s motion to dismiss, the trial court stated that it would convert the motion to dismiss into a motion for summary judgment. Id. The trial court then granted summary judgment during the hearing. Id. Jones appealed, asserting that she was not given the ten-day notice of the summary-judgment hearing as required by Mississippi Rule of Civil Procedure 56(c). Id. at 475-76 (¶ 6). This Court stated: “While the conversion was proper, the trial court failed to continue the hearing in order to allow Jones the opportunity to present any evidentiary material she felt pertinent to survive the Rule 56 motion.” Id. at 476 (¶6).
This Court specifically noted in Jones that no matter how baseless the claim may appear to be, the Mississippi Rules of Civil Procedure require that respondents to a converted summary-judgment motion “be given 10 days’ notice once a motion to dismiss is converted to a motion for summary judgment.” Id. at 476 (¶ 9). This statement was in specific reference to the lack of notice prior to an actual hearing, and this Court further held that, because of this failure alone, “we must vacate the judgment.” Id. In the case before us, the defendants filed a motion to dismiss that was heard on November 3, 2006. At that point in time, the trial court correctly converted the motion into one for summary judgment based on the submission of two exhibits. The trial court subsequently took the matter under advisement and entered its memorandum opinion on November 30, 2006. We are mindful of the delay in time before the opinion was rendered. However, we must also note that the hearing was not continued after the conversion to allow for ten days’ notice prior to a summary-judgment hearing as is required by the Mississippi Rules of Civil Procedure and the prior mandate of this Court in Jones. While the plaintiffs sent a letter detailing additional evidence three days after the hearing, this act alone does not waive the ten-day requirement. Therefore, this Court agrees with the dissent from the Court of Appeals and finds that we must reverse the trial court’s holding and remand this case to give the heirs an opportunity to take advantage of the procedural safeguards in place for situations such as this as directed by Rule 56, Palmer, and Jones.

Sullivan, 19 So.3d at 1274-76 (¶¶ 14-19) (emphasis added).

¶ 22. Here, the majority does not conclude that the trial court’s order that granted the Rule 12(b)(6) motion to dismiss should be affirmed. Instead, during the de novo review of the trial court’s Rule 12(b)(6) order, the majority of this Court “converts” the Rule 12(b)(6) motion to a Rule 56 motion for summary judgment. Under Sullivan, it is crystal clear that this Court, or any court, cannot convert the motion from Rule 12(b)(6) to Rule 56 and consider evidence outside the pleadings, until after the non-movant is given ten days’ notice as required by Rule 56(c). Sullivan, 19 So.3d at 1275 (¶16). The majority chooses not to recognize this clear pronouncement of the proper application of the procedural rule. I cannot ignore the non-movant’s right to receive ten days’ notice before this Court converts a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment.

¶ 23. I am of the opinion that both the trial court and this Court are required to provide notice of the Court’s intent to convert this matter from a motion to dismiss under Rule 12(b)(6) to a motion for summary judgment under Rule 56. Since the trial court did not provide the required notice and this Court has not provided the required notice, I am of the opinion that current Mississippi law requires that we reverse the judgment of dismissal and remand this matter for further proceedings, which may include the trial court’s conversion of the motion to dismiss to a motion for summary judgment with the appropriate notification.

¶ 24. For these reasons, I respectfully dissent.

      . Knight’s father suggested in his deposition that Knight was not at fault in the prior accident.

      . An accident report, compiled by the Lee County Sheriff's Department, indicates that Knight was also driving with a suspended license. However, the Robisons do not argue, and nothing in the record suggests, that Enterprise knew or should have known of this at the time it rented the vehicle.


source: Caselaw Access Project

author: GRIFFIS, J., for the Court:

license: Public Domain

text:
    Jermorris PILCHER, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01434-COA.
    Court of Appeals of Mississippi.
    July 20, 2010.
    Rehearing Denied Dec. 7, 2010.
    Certiorari Denied March 24, 2011.

      Marvell Maurice Gordon, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J., for the Court:

¶ 1. Jermorris Pilcher was convicted of the murder of Michael Taylor. He was sentenced to life in the custody of the Mississippi Department of Corrections. On appeal, Pilcher argues that the circuit court erred by failing to declare a mistrial when: (a) the prosecutor made several misstatements of the law during opening statements, and (b) Cordell Phams testified to new information previously unheard by either party. Pilcher asks the Court to reverse his conviction and remand the case for a new trial. We find no error and affirm Pilcher’s conviction and sentence.

FACTS

¶ 2. On the evening of June 14, 2006, the Leflore County Sheriffs Department responded to a call about a shooting at the Delta Apartments in Greenwood, Mississippi. When the officers arrived at the apartment complex, they discovered that Taylor had been shot. Taylor died shortly after the paramedics arrived. The deputies located several individuals who were in the area at the time of the shooting — Deon Prayer, Phams, and Dontay Williams. All three witnesses gave . consistent statements, which implicated Pilcher. Pilcher was arrested and charged with killing Taylor.

¶ 3. At trial, during the State’s opening statement, the prosecutor informed the jury that Williams was a convicted felon. The prosecutor also reminded the jury that, during voir dire, the jurors indicated that they would not hold Williams’s eonvic-tions against him when listening to his testimony. The prosecutor further explained that Williams had witnessed Pil-cher plotting to harm Taylor because of the fact that Taylor grew up in another part of Greenwood.

¶ 4. Pilcher’s counsel objected to these statements and argued that the statements indicated Pilcher was involved in gang activity. The prosecutor responded by asserting that evidence of a neighborhood rivalry would be presented as the motive for the killing. The circuit court allowed the statements, but the court admonished the prosecutor about making any improper statements of law with regard to the weight the jury may place on Williams’s conviction. Pilcher’s counsel later requested a mistrial, which the circuit court denied.

¶ 5. The jury found Pilcher guilty of murder. Pilcher filed a motion for a new trial or, in the alternative, a judgment of acquittal notwithstanding the verdict. The circuit court denied the motion. Pilcher now appeals.

STANDARD OF REVIEW

¶ 6. The Mississippi Supreme Court set out the standard of review for a motion for a mistrial as follows: “Whether to grant a motion for mistrial is within the sound discretion of the trial court. The standard of review for denial of a motion for mistrial is abuse of discretion.” Caston v. State, 823 So.2d 473, 492 (¶ 54) (Miss.2002) (citation omitted). The supreme court further ruled that “a trial judge is best suited to determine the prejudicial effect of an objectionable remark and is given considerable discretion in deciding whether the remark is so prejudicial as to merit a mistrial.” Flora v. State, 925 So.2d 797, 804 (¶5) (Miss.2006). Unless “serious and irreparable damage” results from an improper comment, the judge should “admonish the jury then and there to disregard the improper comment.” Id. (quoting Johnson v. State, 477 So.2d 196, 210 (Miss.1985)).

ANALYSIS

1. Whether the circuit court emd by failing to declare a mistrial during the State’s opening statements.

¶ 7. Pilcher argues that the circuit court erred by failing to declare a mistrial during the State’s opening statements after the- prosecutor allegedly made improper statements regarding the law, in the presence of the jury, concerning the weight of evidence that the jurors could place on Williams’s testimony.

¶ 8. During the opening statement, the prosecutor informed the jury that Williams would be testifying as to the details of the shooting. The prosecutor also explained that Williams was a convicted felon. The prosecutor also reminded the jury that, during voir dire, none of the selected jurors had raised their hands when asked whether or not they would hold such a conviction against a witness when considering his testimony. The circuit court admonished the prosecutor that this was the second time that the State had been warned about improper statements of law with regard to the weight the jury may place on Williams’s conviction. Pilcher’s trial counsel later requested a mistrial, which the court denied. However, the circuit court explained the distinction between the proper statements of law with regard to the convictions of witnesses and the statements made by the prosecution.

¶ 9. Pilcher claims that the circuit court abused its discretion by not informing the jury of the correct statements of law and by also allowing the jury to continue throughout the course of the trial to operate under an erroneous understanding of their duties as jurors. Pilcher argues that Williams was the most important witness to testify during the trial, because he was the only witness who actually claimed to see Pilcher shoot the victim. Pilcher submits that he was severely prejudiced; therefore, the circuit court should have declared a mistrial, or the court should have at least corrected the State’s statements to the jury regarding the law.

¶ 10. The record reflects that Pil-cher’s counsel failed to make a contemporaneous objection to the prosecutor’s statement regarding Williams’s conviction and the weight that the jury could give his testimony. Pilcher’s counsel did not object during the State’s opening statements about Williams’ conviction, but he did object to comments made later by the prosecutor about alleged gang activity in the community. When the court addressed this objection, the circuit court also reprimanded the prosecutor for earlier statements about the weight the jurors could give to the testimony of a convicted felon. The “failure to make a contemporaneous objection at trial waives the issue on appeal.” Holland v. State, 656 So.2d 1192, 1197 (Miss.1995); Cooper v. State, 977 So.2d 1220, 1226 (¶ 28) (Miss.Ct.App.2007).

¶ 11. Waiver notwithstanding, the jury was properly instructed about its exclusive duty to weigh the evidence presented. The circuit court instructed the jury, through jury instruction number one, that it must decide how much of each witness’s testimony it believes and how much weight it will give that testimony. Instruction number nine informed the jury that it was the sole judge in determining witness .credibility and assessing the weight to attach to witness testimony. The instruction continued that the jury could accept the testimony of some witnesses, and it could reject that of others, as well as consider a witness’s motive and interest in determining that witness’s credibility. Because juries are presumed to follow the instructions of the trial court, we find that sufficient evidence exists to show that the jury understood that it could consider Williams’s felony conviction against him in determining his credibility and what weight to ascribe to his testimony. Walton v. State, 998 So.2d 971, 977 (¶ 17) (Miss.2008). Accordingly, we find this issue is procedurally barred and also without merit.

2. Whether the circuit court erred by failing to declare a mistrial during the testimony of Cordell Phams.

¶ 12. Pilcher argues that the circuit court abused its discretion by failing to declare a mistrial, when requested by the defense, during Phams’s testimony. Prior to the trial, the State provided Phams’s statements made during his interview with the police to the defense, as well as a summary of expected testimony. - At trial, Phams testified to new information regarding the shooting, which was previously unheard by both parties. Pilcher claims that the circuit court should have instructed the jury to disregard Phams’s testimony that referenced the new information.

¶ 13. During the trial, Phams testified that moments before the shooting, he saw Pilcher with a rifle and claimed that Pil-cher told Phams that he was “fixing to knock somebody off.” Phams stated that he saw Pilcher aim the rifle at Taylor, who was walking up the stairs. Phams conceded that he did not actually see Pilcher pull the trigger, but he saw him immediately before and after he had shot Taylor. Phams testified that after the shooting, Pilcher ran off. Phams also testified that he could identify the gun he saw Pilcher with as a 30.06 because both Phams and his father use that type of gun when they hunt.

¶ 14. On cross-examination, Phams was questioned about the lighting conditions during the time of the murder and was asked whether he was certain that the gun he saw Pilcher with was a 30.06. On redirect examination, the prosecutor also asked Phams how he knew that the gun he saw was a 30.06, and Phams replied: “Because that’s — the boy that gave him the gun.... ” Pilcher’s counsel objected, and both parties approached the bench.

¶ 15. At the bench conference, both parties asserted that they were unsure about what Phams was referencing or what he was about to say. The prosecutor maintained that the question simply asked Phams about the description of the gun. The circuit court agreed that the partial answer was non-responsive to the question asked. ■ The questioning continued.

¶'16. Later, the prosecutor asked Phams to explain what he meant when he said that he had seen an individual known as “Fella” sitting under a tree “in a different area” with Pilcher, who was holding the gun. Phams responded:

Like, this tree — this the [sic] tree he was sitting up under (indicating). Pm way over by the truck (indicating). So, where the truck parked at, on the side of it, you could see it from right here when he was passing the dude with the gun. And when I was coming from downstairs, that’s when he was passing the dude with the gun.

The prosecutor immediately moved to strike that portion of the testimony. Both parties approached the bench, and they informed the court that they had both interviewed Phams prior to trial, and this was the first time either of them had heard this information.

¶ 17. Pilcher’s counsel moved for a mistrial, but then Pilcher’s counsel asked to be allowed to- voir dire Phams outside the presence of the jury. During the voir dire examination in the judge’s chambers, Phams explained that he saw “Fella” give Pilcher the gun prior to the murder. Phams also stated that he never provided this information to anyone prior to trial, including the police, because no one had specifically asked him if he had seen where Pilcher obtained the gun. The circuit court ruled that it would exclude the new evidence about “Fella” giving Pilcher the gun and instructed Phams not to give any testimony on the stand concerning this new information. Once the jury returned to the courtroom, the circuit judge instructed the jury to disregard the question that Phams was asked right before the recess and to also disregard Phams’s response to the question.

¶ 18. The record and briefs support the assertion that the new information provided by Phams was not known by the State prior to trial. The prosecutor assured the circuit court that he had no intention of eliciting the response given when questioning Phams. After our thorough review of the record, we find that Pilcher suffered no prejudice by the circuit court’s decision to exclude Phams’s statement. The transcript shows that Phams’s statement during his testimony was vague, and he was cut off both times before he could elaborate on the subject. We further note that the circuit court specifically instructed the jury to disregard Phams’s statement about “Fella” and the gun. As previously stated, the jury is presumed to have followed the circuit court’s instruction. Walton, 998 So.2d at 977 (¶ 17). Thus, we find that the circuit court did not abuse its discretion in denying Pilcher’s request for a mistrial. This issue is without merit.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . During voir dire, the circuit court cautioned the State not to make improper statements regarding the weight the jury could place on Williams's testimony due to the fact that he is a convicted felon.


author: KING, C.J., for the Court: GRIFFIS, J,

text:
    Sharon POOLE, Appellant v. The PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellee.
    No. 2009-CC-00212-COA.
    Court of Appeals of Mississippi.
    Aug. 17, 2010.
    Rehearing Denied Jan. 11, 2011.
    Certiorari Denied March 24, 2011.
    George S. Luter, attorney for appellant.
    Office of the Attorney General by Mary Margaret Bowers, attorney for appellee.
   KING, C.J., for the Court:

¶ 1. Sharon M. Poole appeals from the order denying her disability benefits. The Hinds County Circuit Court affirmed the decision of the Board of Trustees (Board) of the Public Employees’ Retirement System (PERS), which adopted the recommendation of the PERS’ Disability Appeals Committee (Committee) to deny Poole disability benefits. The Committee found it lacks authority to grant benefits because it could not find “any objective and credible medical evidence of a disease or condition, which is causing Ms. Poole to have pain.”

¶ 2. On appeal, Poole raises the following issues:

1. The decision of PERS should be reversed and rendered because it is not supported by substantial evidence and is legally incorrect since PERS’ decision stated that they “do not believe we have authority to award disability in this case because we cannot find any objective and credible medical evidence of a disease or condition, which is causing Poole to have pain.”
2. Alternatively, the decision of PERS should be remanded for a new hearing for PERS to consider her fibro-myalgia since no records from Poole’s rheumatologist were obtained.

¶ 3. Finding error, we reverse and render.

FACTS

¶4. Poole was a supervisor with the Mississippi Department of Human Services (DHS) with more than thirty years of service when she applied for Non-Duty Related Disability pursuant to Mississippi Code Annotated section 25 — 11—113(l)(a) (Supp.2009).

¶ 5. Poole testified that she has lower-back pain and neck problems; she had surgery on her neck in 1998. After years of back pain, Poole underwent lower-back surgery in 2002. After surgery, her pain returned, and she had a second surgery in March 2004.

¶ 6. Poole is required to supervise workers and clerks and has a lot of deskwork and computer work. Poole says that she has trouble sitting and tries to move around. She has been told by one doctor to do no bending, lifting, stooping, or driving more than forty-five minutes at a time. Since Hurricane Katrina, Poole was working in trailers and had difficulty maneuvering from one trailer to another, by using a “boardwalk.” Poole testified that the “boardwalk” is the length of a football field and that she has to make the walk between the trailers ten times a day.

¶ 7. On January 11, 2005, DHS County Director Loraine Hill reported that Poole was “working as much as possible but has to miss excessive amounts of work due to health.” It was her opinion that Poole could not perform her job. The Committee noted that Poole somehow had managed to work, and she had maintained acceptable evaluations in her job even with her pain.

¶ 8. On September 13, 2005, PERS Interim Executive Director Denise Owens-Mounger wrote Poole a letter stating that the PERS Medical Board had determined that there was insufficient evidence to “support the claim that your medical condition prevents you from performing your duties as described of a Supervisor.” Poole appealed this decision.

¶ 9. At the hearing before the Committee on April 14, 2006, Poole testified that she had pain in her lower back down her right leg, muscle spasms in her neck, two bulging discs in her neck, and numbness in her right hand. There were several witnesses who testified at the hearing. Poole presented medical records consisting of diagnoses and past treatments by Dr. David Lee and Cindy Rouse with the Southern Spinal Neurologic Institute. Dr. Lee performed the back surgery in October 2002. After her pain returned, Poole was treated with injections, physical therapy, and a TENS unit. In March 2004, Dr. Lee performed another back surgery to remove the hardware and bolster her fusion. Poole experienced more severe and frequent muscle spasms and was unable to tolerate the pain of physical therapy.

¶ 10. In December 2004, Dr. Lee reexamined Poole and found that she had lumbar disc degeneration, lumbar spondy-losis, chronic pain, and failed-back syndrome. Dr. Lee also stated that he would support Poole’s application for disability. Rouse also concluded that Poole was in chronic pain and unable to continue working.

¶ 11. At the hearing before the Committee, Poole also presented Dr. Thomas V. Chmelicek’s opinion that Poole had reached maximum improvement and was disabled. Dr. Chmelicek is Poole’s family physician; he reported that Poole was under chronic-pain-control management and permanently requires pain medication. Dr. Chmelicek stated that Poole is permanently disabled with a very small possibility of improvement.

¶ 12. Dr. David Collip examined Poole on August 5, 2005, at PERS’ request. Dr. Collip found Poole’s movements appeared slow and painful. Dr. Collip determined that Poole could perform light duty work and lift no more than twenty pounds.

¶ 13. The Committee stated its recommendation as follows:

Basically the main complaint here is that Ms. Poole has back pain that she claims is disabling.... This is not to say that we believe that Ms. Poole is making up her pain.... We do not believe we have the authority to award disability in this case because we cannot find any objective and credible medical evidence of a disease or condition which is causing Ms. Poole to have pain.

¶ 14. The Board’s order adopted the Committee’s recommendation. Poole then appealed to the Hinds County Circuit Court, which affirmed the decision of PERS.

STANDARD OF REVIEW

¶ 15. Unless PERS’ decision is not supported by substantial evidence, arbitrary or capricious, beyond the scope or power granted to the agency, or violates constitutional rights, the reviewing court should not disturb its conclusion. Pub. Employees’ Ret. Sys. v. Howard, 905 So.2d 1279, 1284 (¶ 13) (Miss.2005).

DISCUSSION

¶ 16. Mississippi Code Annotated section 25-11-113(l)(a) states in part:

[A]ny active member in state service who became a member before July 1, 2007, and who has at least four (4) years of membership service credit ... may be retired by the board of trustees ... provided that the medical board, after an evaluation of medical evidence ... certifies that the member is mentally or physically incapacitated for the .further performance of duty, that such incapacity is likely to be permanent, and that the member should be retired....

¶ 17. Section 25 — 11—113(l)(a) defines “disability” as:

[T]he inability to perform the usual duties of employments or the incapacity to perform lesser duties, if any as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by the Public Employees’ Retirement System (Section 25-11-101 et seq.) that is actually offered and is within the same general territorial work area, without material reduction in compensation.

¶ 18. Poole argues that all the available medical evidence available to the Committee supports her contention that she met the statutory definition of disability-

¶ 19. Contrary to the argument made by PERS, this Court is not substituting its judgment for that of the agency rendering the decision and is not reweighing the facts. The Court does not challenge any of the, factual findings, only the legal interpretation of these facts. The Court finds that PERS had statutory authority to grant Poole disability based on the medical evidence before it and that there is no requirement for a specific medical condition if the evidence supports the inability to continue work or disability.

¶ 20. In Stevison v. Public Employees’ Retirement System, 966 So.2d 874, 880 (¶ 20) (Miss.Ct.App.2007), the Court stated that PERS had decided: “Because there is no credible, objective test that supports Stevison’s subjective complaints ... Drs. Tynes’s and Daggett’s diagnosis of disabling conditions constituted patient advocacy, not legitimate medical diagnoses.” PERS chose to ignore the doctors’ diagnoses and disability opinions and determined that the claimant presented no objective ' evidence. Id. at (¶ 22). In that case, the Court compared PERS’ dismissal of the evidence similar to actions in cases involving disabling fibromyalgia or chronic fatigue syndrome. Id. at 881 (¶ 22).

¶ 21. In Public Employees’ Retirement System v. Dearman, 846 So.2d 1014 (Miss.2003); Public Employees’ Retirement System v. Marquez, 774 So.2d 421 (Miss.2000); and Public Employees’ Retirement System v. Waid, 823 So.2d 595 (Miss.Ct.App.2002), PERS’ decisions were reversed because the agency had ignored the opinions of the treating physicians, labeling the opinions as subjective. See Stevison, 966 So.2d at 881-82 (¶¶ 22-25). “Yet, the supreme court has held that medical diagnoses by licensed physicians are objective, not subjective, evidence of disability.” Id. at 882 (¶ 25) (citing Marquez, 774 So.2d at 427 (¶ 22)). Accordingly, because we find objective evidence in the record and in the findings, we hold that the PERS’ decision to deny disability to Poole is not supported by substantial evidence. Sending the case back on remand would serve no useful purpose since the evidence of disability is already part of the record. Therefore, we reverse and render with disability benefits awarded.

¶ 22. There is no dispute that Poole was in pain and that she was unable to substantially perform the duties of her position. The fact that the Committee was unable to find the specific cause of her pain was not fatal to a finding of disability.

¶ 23. In Doyle v. Public Employees’ Retirement System, 808 So.2d 902, 905 (¶ 8) (Miss.2002), the supreme court stated that, it is not the court’s job to determine whether the claimant has presented enough evidence to prove that she is disabled, but whether PERS has presented énough evidence to support its finding that the claimant is not disabled. Because we are unable to find that the record supports a finding that Poole was not disabled according to statute, we reverse and render, finding that she should have received disability benefits.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE AND MYERS, P JJ, IRVING, BARNES AND ISHEE, JJ, CONCUR. CARLTON AND MAXWELL, JJ, CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, J, DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS, J.

GRIFFIS, J,

dissenting:

¶25. I respectfully disagree with the majority. In my opinion, the majority errs by reweighing the evidence and substituting its judgment for that of the Public Employees’ Retirement System (PERS). I find substantial evidence in the record to support the PERS decision.

¶ 26. In Public Employees’ Retirement System v. Cobb, 839 So.2d 605, 609 (¶ 12) (Miss.Ct.App.2003), this Court unanimously held:

In administrative matters, the agency, and not the reviewing court, sits as finder of fact. That fact-finding duty includes assessing the credibility of witnesses and determining the proper weight to give to a particular witness’s testimony. A reviewing court is obligated to afford such determinations of credibility in the fact-finding process substantial deference when reviewing an administrative determination on appeal,] and the court exceeds its authority when it proceeds to re-evaluate the evidence and makes its own determination of the trustworthiness of some particular testimony.

(Internal citations omitted).

¶27. “There is a rebuttable presumption in favor of a PERS ruling. Neither the appellate court nor the circuit court is entitled to substitute its own judgment for that of PERS, and it is impermissible for a reviewing court to re-weigh the facts of the case.” Pub. Employees’ Ret. Sys. v. Card, 994 So.2d 239, 242 (¶ 15) (Miss.Ct.App.2008) (quoting Pub. Employees’ Ret. Sys. v. Dishmon, 797 So.2d 888, 891 (¶ 9) (Miss.2001)). “As long as the reviewing court finds that the Board’s decision was supported by evidence and absent of fraud, it shall render the Board’s decision conclusive.” Id. at (¶ 14).

¶ 28. PERS does not bear the unreasonable burden of completely disproving every disability claim. This Court is not charged with the task of determining whether there is '“substantial evidence” of a disability. Pub. Employees’ Ret. Sys. v. Dishmon, 17 So.3d 87, 91 (¶ 19) (Miss.2009). The question before this Court is whether there was “substantial evidence” to support PERS finding that there was no disability. Id.

¶ 29. Substantial evidence “means something more than a mere scintilla of evidence” of “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Delta CMI v. Speck, 586 So.2d 768, 773 (Miss.1991).

¶ 30. . The PERS’ Disability Appeals Committee- (Committee) set forth the following findings:

Disability is the medical incapacity for further performance of duty that is likely to be permanent and the employee should be retired. See Regulation 45A of PERS Board of Trustees, Administration of PERS Disability Benefits, and Mississippi Code Ann. Section 25 — 11— 114, (1972, as amended). Ms. Poole has the burden of persuading this Committee that she is disabled and to do that, we must have objective and credible medical evidence that Ms. Poole has a medical condition which has resulted in her. disability. We also note that Ms. Poole is somehow managing to work[,] and she is maintaining acceptable evaluations in her job as a supervisor even with her complaints of severe pain.
This case is not an easy case. This Committee has evaluated each and every medical report and looked to see whether medical opinions are based on objective evidence and not just sympathy for Ms. Poole’s complaints. Ms. Poole has told this Committee that she has failed back syndrome. She was concerned about that diagnosis. Failed back syndrome simply means that Ms. Poole’s complaints of pain were not relieved after her lower back surgery. Failed back syndrome is not a physical diagnosis for a physical condition.
Basically, the main complaint here is that Ms. Poole has back pain that she claims is disabling. She does have some evidence of degenerative disease of her spine as evidenced by her neck and low back surgery, but the problem is that there is a void of evidence that would explain Ms. Poole’s complaints of neck and low back pain. When looking at the objective tests, the MRIs were essentially normal and certainly did not explain the complaints of pain. The EMGs were normal as far as a radiculopathy was concerned. And even Dr. [David] Lee wrote that he could not explain why Ms. Poole is continuing to complain of pain. This is not to say that we believe Ms. Poole is making up her pain. We are sympathetic to her situation. But that is not what we have been charged to look for in this case. We need objective evidence of a disease or condition that would result in a permanent disability. What we have is a lady who continues to work with no objective medical evidence of what might be causing her to suffer from pain that she alleges is disabling. During the hearing, this Committee noted Ms. Poole was able to turn her neck and head without any noticeable stiffness or pain. She was able to sit before us with some movement noted[,] but she was able to maintain her concentration. So, it seems that today, the issue is whether this Committee can award disability solely based on the subjective complaints of pain that Ms. Poole has. Our statute does not provide that disability can be awarded for subjective complaints when nothing objective is present. Further, in other Mississippi statutes, awards of disability cannot be maintained solely on the complaints of pain. We do not believe we have the authority to award disability in this case because we cannot find any objective and credible medical evidence of a disease or a condition, which is causing Ms. Poole to have pain. We have no choice but to recommend that Ms. Poole’s request for disability benefits be denied.

¶ 31. The task of this Court is to determine whether there was substantial evidence to support the finding that Poole is not disabled. The Committee’s findings contain this substantial evidence required to support the PERS decision.

¶ 32. PERS was in a far better position to evaluate Poole’s medical history and the evidence presented. This Court is required to give deference to the PERS decision. We cannot substitute our judgment, and we must not reweigh the facts. Pub. Employees’ Ret. Sys. v. Howard, 905 So.2d 1279, 1284 (¶ 15) (Miss.2005). I would affirm the judgment of the circuit court; therefore, I respectfully dissent from the majority’s decision.

ROBERTS, J., JOINS THIS OPINION.


author: KING, C.J.,

text:
    Terry WILKINS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01711-COA.
    Court of Appeals of Mississippi.
    Sept. 14, 2010.
    Rehearing Denied March 1, 2011.

      Terry Wilkins, Appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appelleé.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   KING, C.J.,

for the Court:

¶ 1. Terry Wilkins filed a pro se motion for post-conviction relief on March 12, 2009. On July 20, 2009, the Lafayette County Circuit Court denied the motion. Wilkins filed a timely appeal arguing the following issues: (1) he received ineffective assistance of counsel because his attorney failed to investigate his case and adequately prepare a defense; (2) his sentence was unconstitutional because his co-defendant received a lesser sentence; (3) his guilty plea was not entered knowingly, voluntarily, and intelligently because he was not informed of the minimum and maximum sentence; (4) his indictment was defective because it incorrectly listed the date of one of the offenses used for sentence enhancement; and (5) the State failed to prove his habitual status. Finding no error, we affirm the judgment of the trial court.

FACTS

¶ 2. On February 23, 2007, Wilkins was indicted for burglary of a dwelling pursuant to Mississippi Code Annotated section 97-17-23 (Rev.2006) and as a habitual offender pursuant to Mississippi Code Annotated section 99-19-B1 (Rev.2007). On July 2, 2007, Wilkins entered a guilty plea and was sentenced to serve seventeen and a half years in the custody of the Mississippi Department of Corrections (MDOG). On March 12, 2009, Wilkins filed a motion for post-conviction relief. On July 20, 2009, the Circuit Court of Lafayette County denied Wilkins’s motion for post-conviction relief. Wilkins claimed that his conviction and sentence should be set aside for the following reasons: (1) his counsel provided him ineffective assistance; (2) the State failed to meet its burden of proof according to Mississippi Code Annotated section 99-19-81; (3) his guilty plea was not valid because intervening case law ruled the Uniform Rules of Circuit and County Court 8.04 unconstitutional; and (4) he was denied due process because his sentence was not within the statutory limits. Wilkins timely filed his appeal on August 12, 2009.

STANDARD OF REVIEW

¶ 3. “When reviewing a lower court’s decision to deny a petition for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008) (quoting Lambert v. State, 941 So.2d 804, 807 (¶ 14) (Miss.2006)). “However, where questions of law are raised, the applicable standard of review is de novo.” Id.

ANALYSIS

I. Ineffective Assistance of Counsel

¶ 4. Wilkins argues that he received ineffective assistance from his trial counsel. Specifically, Wilkins contends that: (1) his counsel failed to investigate the facts of the offense charged; (2) his counsel failed to interview witnesses; (3) his counsel failed to call witnesses to rebut the State’s witnesses; (4) his counsel failed to adequately prepare a defense; and (5) his counsel failed to object to the disparity in the sentencing between him and his co-defendant.

¶ 5. The burden of proving ineffective assistance of counsel rests on Wilkins. In order to establish a ■ claim of ineffective assistance of counsel, Wilkins must prove that counsel’s performance was deficient and that his defense was prejudiced by his counsel’s deficient performance. Coleman v. State, 979 So.2d 731, 735 (¶ 14) (Miss.Ct.App.2008) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Under Strickland, there is a strong, but rebuttable, presumption that counsel’s performance falls within the range of reasonable professional assistance. Id. (¶ 14) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). “To overcome this presumption, the defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

¶ 6. Wilkins failed to provide any credible proof of his trial counsel’s alleged deficient performance. Wilkins did claim the existence of an alibi witness, Susan Kesler, that his defense counsel failed to interview. According to Wilkins, had his counsel interviewed Kesler, she would have stated that Wilkins was at her home at the time of the burglary. Wilkins asserts that Kesler was willing to sign an affidavit and testify regarding Wilkins’s whereabouts during the crime. Wilkins asserts that he would not have pled guilty and have proceeded to trial if he had had an alibi witness and he possibly would have been acquitted of the charges against him. This Court notes with interest that while Wilkins has suggested that Kesler was, prepared to offer an affidavit and testify regarding his alibi, no affidavit from Kesler has been presented as a part of this post-conviction-relief proceeding, nor has any such affidavit been incorporated into the record on appeal. Instead, Wilkins has only provided his self-serving affidavit. “In cases involving post-conviction collateral relief, ‘where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.’ ” Cherry v. State, 24 So.3d 1048, 1051 (¶ 6) (Miss.Ct.App.2010) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995)).

¶ 7. Wilkins maintains that had his counsel investigated the facts of the case and interviewed witnesses, the outcome of the trial likely would have been different. This Court has previously held that in order for a failure to investigate claim to rise to ineffective assistance of counsel, the defendant must state with particularity what the investigation would have revealed and how it would have altered the outcome. Johnson v. State, 987 So.2d 501, 504 (¶ 15) (Miss.Ct.App.2008). This Court recognizes that defense counsel has a duty to interview potential witnesses and make an independent investigation of the facts and circumstances of a case. However, without more, the mere failure to investigate will not give rise to a viable claim of ineffective assistance of counsel. Reed v. State, 918 So.2d 776, 778 (¶ 5) (Miss.Ct.App.2005) (citing Brown v. State, 798 So.2d 481, 496 (¶ 21) (Miss.2001)). To establish a viable claim, Wilkins must also demonstrate that the likely outcome of the trial would have differed if his counsel had, in fact, conducted an investigation. Wilkins claims that he was at Kesler’s home at the time of the burglary, but the only particulars as to what counsel would have discovered had he investigated were found in Wilkins’s affidavit. In addition to Kesler and his co-defendant, David L. Dickey, Wilkins identified one other individual, Ronnie Winters, who likely would have knowledge of the facts of this case. However, Wilkins failed to provide' the trial court or this Court with an affidavit from either Kesler, Dickey, or Winters.

¶ 8. During the plea colloquy, the State represented to the trial court that it would offer evidence to prove the following facts in its case against Wilkins:

[T]he State would expect to prove in this case that on or about the 17th day of October 2006 in Lafayette County, State of Mississippi, within the jurisdiction of this Court that this defendant, Terry Wilkins, in concert with another defendant, David L. Dick[ey], did break and enter a structure which is number 207 on a county road in Lafayette County, Mississippi, which was the property of Dee Mize, which was a dwelling house of Dee Mize; that they entered this dwelling house, or one of them did, in cooperation with the other; and that they took certain goods out of that structure; that they sold those goods; that those goods, some of which were later recovered, most of which were later recovered; and that that would be what we would prove with respect to the actual breaking and entering.
With respect to the allegations that the defendant is a habitual offender, we would expect to prove that in cause number LK-03-294 in this court that the defendant, Terry Wilkins, was convicted on the 1st day of October 2003 for the felony crime of receiving stolen property; and he was sentenced to serve more than a year on [that] occasion; and that also in the cause number LK-03-295 in this court the defendant, Terry Wilkins, was convicted on or about the same day of taking a motor vehicle, taking away a motor vehicle, which is another felony crime; and that he was sentenced to serve more than a year on that occasion as well; and that some portion of that time was suspended; but in each case he received a sentence of 5 years. That’s what we would expect to prove, and I want to know if the defendant agrees that that’s substantially correct.

In response to a question from the trial court, Wilkins acknowledged under oath that the representations of the State as what the evidence would show were substantially true and correct. Included in those representations which Wilkins acknowledged as being substantially true and correct were: (1) he was guilty of burglary as charged, and (2) he had two prior felony convictions that would qualify him for habitual status. While Wilkins now asserts that he was innocent, the trial court is entitled to place great faith in the validity of sworn statements he made during the plea hearing. See Harris v. State, 822 So.2d 1129, 1131 (¶ 4) (Miss.Ct.App.2002). Therefore, this claim is without merit.

¶ 9. Wilkins also asserts that his counsel was ineffective because he failed to object to the disparity between his sentence and the sentence imposed upon Wilkins’s co-defendant. Wilkins was sentenced as a habitual offender to seventeen and a half years in the custody of the MDOC, while his co-defendant, Dickey, who had three prior convictions, was sentenced on March 9, 2007, as a non-habitual offender to twenty years with fifteen years suspended. Wilkins contends that his counsel informed him that if he signed the plea petition, then he would object to the sentence recommended by the State on the basis that Dickey had received only five years to serve the same offense. Wilkins claims that had he known his counsel was not going to object to the disparity between the sentences, he would not have pled guilty. However, this assertion would seem to be belied by the transcript of the plea hearing. In that hearing, the trial court informed Wilkins that: (1) the plea petition indicated that he was to plea as a habitual offender; (2) he would have to serve the full sentence imposed without any entitlement to' early release or sentence reduction; (3) the plea petition indicated that the State recommended a sentence of seventeen and a half years; and (4) if Wilkins’s guilty plea were accepted, the trial court would sentence him to seventeen and a half years, “no more, no less.”

¶ 10. The trial court then inquired whether knowing those facts Wilkins still desired to enter his plea of guilty, to which he responded in the affirmative. Where the trial court has made clear to a defendant that it intends to impose a sentence which does not deviate from the plea agreement, and then allows the defendant to determine whether he wishes to complete the agreement, this Court will not find that counsel was ineffective for not contesting the agreement. See Gonzales v. State, 915 So.2d 1108 (¶ 4) (Miss.Ct.App.2005).

¶ 11. Additionally, during the plea colloquy, it must be noted that Wilkins swore that: (1) he was satisfied with his attorney’s service, and (2) there was no promise of a lighter sentence or any other inducement for his guilty plea. This Court is entitled to place greater weight upon the sworn testimony provided by a defendant in a plea hearing than that subsequently provided by him in a proceeding for post-conviction relief. See Harris, 822 So.2d at 1131 (¶ 4). Wilkins’s sentence was within the statutory sentencing guidelines; thus, it was not illegal. This claim is without merit.

II. Illegal Sentence

¶ 12. Wilkins argues that his sentence is unconstitutional because of the disparity between his sentence and his co-defendant’s sentence. Wilkins was sentenced to seventeen and a half years for burglary as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81. However, Dickey, who had three prior convictions, was sentenced to twenty years with fifteen years suspended for burglary, but not as a habitual offender.

¶ 13. This issue is procedurally barred because Wilkins did not present it to the trial court. See Gilmore v. State, 772 So.2d 1095, 1098 (¶8) (Miss.Ct.App.2000). However, were it not barred, this Court would find it to be without merit. In Mississippi, the law is well-settled that sentences which are within the statutory limits will generally be upheld. See Addison v. State, 957 So.2d 1039, 1041 (¶12) (Miss.Ct.App.2007). Sentencing is within the trial court’s discretion and is not subject to appellate review if the sentence is within statutory limits. Id.; See Tate v. State, 912 So.2d 919, 933 (¶ 48) (Miss.2005).

¶ 14. Under Mississippi Code Annotated section 97-17-23, the punishment for burglary of a dwelling is not less than three (3) nor more than twenty-five years in the MDOC. Wilkins’s sentence of seventeen and a half years falls within the statutory sentencing guidelines. Therefore, this issue is procedurally barred and without merit.

III. Voluntariness of Plea

¶ 15. According to Uniform Rule of Circuit and County Court, when considering whether a guilty plea was voluntarily entered, ...

3. Voluntariness. [T]he trial court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.
4. Advice to the Defendant. [I]t is [also] the duty of the trial court to address the defendant personally and to inquire and determine: (a) that the accused is competent to understand the nature of the charge; (b) that the accused understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law; (c) that the accused understands that by pleading guilty (s)he waives his/her constitutional rights of trial by jury, the right to confront and cross-examine adverse witnesses, and the right against self-incrimination;. if the accused is not represented by an attorney, that (s)he is aware of his/her right to an attorney at every stage of the proceeding and that one will be appointed to represent him/ her if (s)he is indigent.

¶ 16. Wilkins asserts that his guilty plea was not voluntarily, knowingly, and intelligently entered. Wilkins' alleges that the trial court did not advise him of the minimum, maximum, or mandatory sentence that he might suffer if he pled guilty to the offense of burglary of a dwelling. The record reflects that the trial court did not inform Wilkins of the minimum or maximum sentence to which a guilty plea might subject him. However, Wilkins acknowledged during the plea colloquy that trial counsel had discussed and explained the plea petition, which he signed on July 2, 2007. The plea petition set forth the minimum and maximum sentence for the offense of burglary of a dwelling. In addition, during the plea colloquy, the trial judge informed Wilkins that he was to be sentenced as a habitual offender, and as such, he would be required to serve day for day any sentence imposed, without the hope of parole, reduction, or early release. Wilkins affirmatively acknowledged that he understood this and stated he still wished to plea guilty.

¶ 17. When considering whether a guilty plea was voluntarily entered, it must be shown that:

[Tjhe defendant’s plea was not induced by fear, violence, deception, or improper inducements; the plea was voluntarily and intelligently made must appear in the record; the defendant was competent to understand the nature of the charge; the defendant understood the nature- and consequences of the plea as well as the maximum and minimum penalties provided by law; the defendant understood that by .pleading guilty he waived his constitutional rights of trial by jury, the right to confront and cross-examine adverse witnesses, and the right against self-incrimination; and if the defendant is not represented by an attorney, he has the right to be appointed an attorney to represent him if he was indigent, because he had the right to an attorney at every stage of the proceeding.

¶ 18. We find that Wilkins’s guilty plea was voluntarily, knowingly, and intelligently entered. Thus, this issue is without merit.

IV. Defective Indictment

¶ 19. Wilkins claims that the indictment was defective because the date stated as June 30, 1997, which was given as the date of conviction for one of the prior felony convictions used for enhancement, should have been May 23, 2003. Rule 11.03(1) of the Uniform Rules of Circuit and County Court states that in cases involving enhanced punishment for subsequent offenses, “[t]he indictment must allege with particularity the nature or description of the offense constituting the previous convictions, the state or federal jurisdiction of any previous conviction, and the date of judgment.”

¶ 20. The purpose of an indictment is “to inform the defendant with some measure of certainty as to the nature of the charges brought against him so' that he may have a reasonable opportunity to prepare an effective defense.” Moses v. State, 795 So.2d 569, 571 (¶ 13) (Miss.Ct.App.2001). The indictment shall contain “the essential facts constituting the offenses charged and shall fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06. Under Rule 7.06 of the Uniform Rules of Circuit and County Court, the failure to state the correct date in an indictment shall not render the indictment insufficient. In Benson v. State, 551 So.2d 188, 196 (Miss.1989), the Mississippi Supreme Court held that an indictment’s failure to list any date for a prior conviction was not fatal to the indictment. The court also noted that:

While it is correct that the date of the judgment is not specifically stated in the indictment, all of the information that is contained, and specifically the cause number, afforded the defendant access to the date of the judgment. This Court holds that information pertaining to the date of the judgment was substantially set forth in the indictment and that sufficient information was afforded the defendant to inform him of the specific prior convictions upon which the State relied for enhancement punishment to comply with due process.

Id.

¶ 21. The indictment stated that Wilkins was convicted on October 1, 2008, in cause number LK03-294, in the Circuit Court of Lafayette County for receiving stolen property and sentenced to serve five years in the custody of the MDOC, and he was convicted on June 30, 1997, in cause number LK03-295, in the Circuit Court of Lafayette County for taking away a motor vehicle and sentenced to five years in the custody of the MDOC. Thus, the date of June 30, 1997, was merely scrivener’s error in drafting the indictment, which did not render the indictment defective. Therefore, this issue is without merit.

V. Habitual-Offender Status

¶ 22. Wilkins argues that his prior convictions were not pi*oven by competent evidence. As noted previously, during the plea hearing, the State recited the facts that it anticipated being able to prove, including that Wilkins had two separate prior felony convictions upon which he had served at least one year, thereby qualifying him for habitual status. Under oath Wilkins admitted that the State’s factual representation was correct, and he acknowledged that he met the definition of a habitual offender.

¶ 23. Generally, to sentence a defendant as a habitual offender, the State must prove the prior offenses by competent evidence, and the defendant must be given a reasonable opportunity to challenge the prosecution’s proof. Madden v. State, 991 So.2d 1231, 1236 (¶20) (Miss.Ct.App.2008); See Keyes v. State, 549 So.2d 949, 951 (Miss.1989). However, where the defendant enters a plea of guilty and admits those facts which establish his habitual status, the State has met its burden of proof. See Evans v. State, 988 So.2d 404, 405-06 (¶ 10) (Miss.Ct.App.2008); see also Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989).

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

LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


text:
    Jack MOORE, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00998-COA.
    Court of Appeals of Mississippi.
    Sept. 28, 2010.
    Rehearing Denied March 8, 2011.

      Erin Elizabeth Pridgen, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appel-lee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court:

¶ 1. Jack Moore was convicted in the Circuit Court of Tishomingo County of two counts of sexual battery and sentenced to twenty-eight years on each count, with the sentences to run concurrently and five years of post-release supervision, in the custody of the Mississippi Department of Corrections (MDOC). Moore was also ordered to pay a $1,000 fine and $1,000 to the Mississippi Children’s Trust Fund. Aggrieved, Moore appeals, raising one issue: whether the verdict is against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. M.B. and Jack Moore divorced in 2003. As a result, M.B. gained custody of their three children, and Moore was granted visitation rights. Moore enjoyed very liberal visitations with his children over the years.

¶ 3. In 2006, A.B., their daughter, revealed to M.B. that Moore had consistently molested her during visitations from 2003 to 2006. M.B. reported A.B.’s allegations to the Mississippi Department of Human Services (DHS) and local law enforcement. Thereafter, Moore was forbidden to exercise visitation with A.B. DHS interviewed A.B., M.B., and the other children. At that time, the police began their investigation as well. But nothing else occurred in the case until 2007.

¶ 4. A.B. attempted suicide in 2007, prompting M.B. to contact the police regarding their investigation of Moore. On January 29, 2008, Detective Donald Kirk II and Detective Greg Mitchell of the Tish-omingo County Sheriffs Department picked up Moore for questioning.

¶ 5. Detective Kirk testified that: he read Moore his Miranda rights; Moore signed an acknowledgment of those rights; and Moore signed a Miranda waiver. Those forms were admitted into evidence. Detective Kirk testified that during the questioning, Moore confessed to the crimes and dictated his statement to Detective Kirk. According to both detectives, Moore reviewed the statement and signed it. Moore’s signed statement was also admitted into evidence. Moore was later arrested and indicted for two counts of sexual battery.

¶ 6. During the trial, M.B. testified that A.B. was an honor-roll student before 2003. After -2003, A.B. was depressed; her grades declined significantly; and she began associating with a rebellious crowd. M.B. testified that when she confronted Moore with A.B.’s allegations, he cried and apologized to her.

¶ 7. A.B. testified that her father molested her every time she had visited him. She could recall two specific incidents. A.B. testified that on May 10, 2003, she and her siblings had visited their father at her grandparents’ home. While she was asleep, Moore entered her bedroom, put his hand over her mouth, removed her clothing, and inserted his finger into her vagina. She was eleven years old at the time. A.B. also recalled a similar incident that occurred when she was twelve years old on December 19, 2003, while A.B. and her siblings were visiting their father during the Christmas holidays. Moore’s girlfriend and her twin daughters were visiting, and the twin girls slept with A.B. in her room. A.B. testified that Moore entered her bedroom, put his hand over her mouth, removed her clothing, and inserted his finger into her vagina. A.B. also testified that her father wrote her a letter on September 19, 2006, in which he apologized to her and asked for a chance to be a better dad.

¶ 8. Moore denied that he had molested his daughter and denied that he had confessed to Detectives Kirk and Mitchell. Moore testified that the detectives refused to give him any information and refused to let him leave until he signed the forms. Moore stated that the statement was blank when he signed it, and the detectives created a false confession. In regard to his apologies to M.B. and A.B., Moore explained that he was not apologizing for the allegations of sexual battery. Instead, Moore insisted that he was apologizing for not being a better father to A.B. during the time of her depression and attempted suicide.

¶ 9. On May 13, 2009, a Tishomingo County jury found Moore guilty of two counts of sexual battery. Moore was sentenced to twenty-eight years on each count, with the sentences to run concurrently in the custody of the MDOC. Moore was also ordered to pay a $1,000 fine and $1,000 to the Mississippi Children’s Trust Fund. Thereafter, Moore filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied the.motion. Aggrieved, More timely filed this appeal.

ANALYSIS

¶ 10. A motion for a new trial challenges the weight of the evidence. See Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). On appeal, the evidence is viewed in the light most favorable to the verdict. Id. This Court will not disturb the jury’s verdict unless “it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id.

¶ 11. Moore argues that the verdict is against the overwhelming weight of the evidence based on three reasons: (A) the source of the complaint, (B) the lack of evidence, and (C) an improper investigation.

A. The Source of the Complaint

¶ 12. Here, Moore attacks A.B.’s credibility. Moore maintains that other people were present during the times that he allegedly molested A.B.; thus, if the abuse had occurred consistently over three years, someone would have witnessed it.

¶ 13. However, an eyewitness is not necessary for a conviction. “[T]he ‘totally uncorroborated testimony of a [sex-crime] victim is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other evidence.’ ” Morris v. State, 913 So.2d 432, 435 (¶ 13) (Miss.Ct.App.2005) (quoting Christian v. State, 456 So.2d 729, 734 (Miss.1984)). Furthermore, it is the sole province of the jury to determine the credibility of the witnesses and the weight to give to the evidence. See Burbank v. State, 800 So.2d 540, 545 (¶ 12) (Miss.Ct.App.2001).

¶ 14. Besides Moore’s testimony, A.B.’s testimony was neither discredited nor contradicted by any other evidence. Thus, A.B.’s testimony alone is sufficient to support Moore’s conviction.

B.The Evidence

¶ 15. Next, Moore argues that the verdict is against the overwhelming weight of the evidence because there is no physical evidence that he molested A.B. Physical evidence is not required to secure a conviction. See Brown v. State, 751 So.2d 1155, 1158 (¶ 12) (Miss.Ct.App.1999).

¶ 16. Moore also argues that the apologies to M.B. and A.B. were not admissions that he had molested A.B. Instead, he contends that these apologies expressed his sorrow over his daughter’s behavioral issues and attempted suicide. As previously stated, it is within the jury’s province to determine the weight and credibility to give to the evidence. Burbank, 800 So.2d at 545 (¶ 12). Based on the jury’s guilty verdict, the jury resolved any conflicts in the evidence in favor of the State.

C.The Investigation

¶ 17. Moore criticizes the sheriffs department’s investigation in this case. He complains that he was not questioned at the sheriffs department but at an off-site facility. And Moore complains that Detective Mitchell lacked experience with sexual-assault cases. Moore was indeed questioned by Detective Kirk at an off-site facility, which was used by the narcotics division of the sheriffs department for investigations. Although Detective Mitchell lacked experience with sexual-assault cases, Detective Kirk, the lead investigator, had plenty of experience handling sexual-assault cases. Detective Mitchell was simply present as a witness. Moore’s complaints have no merit.

¶ 18. Moore also challenges the admissibility of his confession, arguing that it was not given voluntarily. “When the trial court has [denied] a motion to suppress a defendant’s confession, we will reverse the trial court’s decision only if the trial court’s ruling is manifest error or contrary to the overwhelming weight of the evidence.” O’Halloran v. State, 731 So.2d 565, 570 (¶17) (Miss.1999). When ruling on the admissibility of a confession, the trial court must determine, based on the totality of the circumstances, whether the confession was voluntarily and knowingly given and whether the defendant was given his Miranda rights. Scott v. State, 8 So.3d 855, 861 (¶ 23) (Miss.2008).

¶ 19. The State bears the burden of proving beyond a reasonable doubt that the confession was voluntarily and knowingly given. Wilson v. State, 936 So.2d 357, 362 (¶ 8) (Miss.2006). At the suppression hearing, Detectives Kirk and Mitchell testified that they had asked Moore for permission to question him, and Moore gave his permission to be questioned. Moore was not under arrest at that time. Moore was given the option to follow the detectives or to ride with them, and Moore chose to ride with them. Moore stated that the detectives did not give him an option.

¶20. The State introduced Moore’s signed Miranda acknowledgment form, waiver, and confession. Detectives Kirk and Mitchell testified that Moore’s Miranda rights were read to him; Moore voluntarily signed these forms; and he voluntarily gave his confession. In regard to receiving his Miranda warning, Moore testified that:

A: ... I don’t believe [Detective Kirk] read them to me. He asked me did I know my Miranda rights. I said, Yeah. He said, Well, do you mind signing this that they’ve been read to you to save me the time?
Q: But you never told the officer, I don’t understand what I’m signing, I don’t understand what I’m waiving; is that correct?
A. Yeah, I never told him that.

When asked about his confession, Moore maintained that he signed a blank statement form and that he told the detectives: ‘You put down anything you want to. I’m just ready to go home.”

¶21. As the fact-finder, it is the trial court’s duty to resolve conflicts in the testimony regarding whether a confession was voluntarily given. See Scott, 8 So.3d at 861 (¶ 25). Based on the evidence presented during the suppression hearing, the trial court determined that Moore was given his Miranda rights, voluntarily signed an admission that he understood those rights, and voluntarily signed a waiver of those rights. The trial court determined that Moore was free to leave at any time and that the detectives did not threaten, coerce, or promise Moore anything to obtain his confession.

¶ 22. Because the trial court’s ruling is supported by the evidence, we find that the trial court did not err by denying Moore’s motion to suppress his confession. This argument is without merit.

CONCLUSION

¶ 23. Viewing the evidence in the light most favorable to the verdict, we do not find that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustfce. Thus, Moore’s convictions and sentences are affirmed.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF TISHOMINGO COUNTY OF CONVICTION OF TWO COUNTS OF SEXUAL BATTERY AND SENTENCE OF TWENTY-EIGHT YEARS ON EACH COUNT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCES TO RUN CONCURRENTLY, AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A $1,000 FINE AND $1,000 TO THE MISSISSIPPI CHILDREN’S TRUST FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TISHOMINGO COUNTY.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . We substitute fictitious initials for the names of minor victims and their families to protect their identity.


text:
    Elijah Bennett DOWDLE, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01994-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.
    Erin Elizabeth Pridgen, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   KING, C.J.,

for the Court: •

¶ 1. Elijah Bennett Dowdle was convicted in the Circuit Court of Lowndes County of possession of less than one gram of cocaine. He was sentenced as a habitual offender and as a repeat drug offender to eight years in the custody of the Mississippi Department of Corrections (MDOC) and ordered to pay a $20,000 fine. Aggrieved, Dowdle appeals, raising one issue: whether the trial court erred by denying his motion for a new trial. Finding no error, we affirm Dowdle’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. The crime occurred on July 20, 2007, in Caledonia, Mississippi, in Lowndes County. Dowdle and Pat Logan, a friend and motorcycle shop owner, often traded motorcycles and other vehicles. On this day, Logan wanted Dowdle to purchase a used Honda automobile for him from Raymond Earl Smith (Earl), a used car salesman. Dowdle purchased the car from Earl. Because the car did not have a license plate, Dowdle took the license plate off of his truck and put it on the car before driving it to Logan’s shop.

¶ 3. Dowdle did not get very far before he was' pulled over by Lowndes County Deputy Chris Smith for having a broken headlight. Deputy Smith testified that when he approached the car, Dowdle appeared to be nervous, would not make eye contact with him, and kept looking at the passenger seat. Fearing that Dowdle may have a weapon in the passenger seat, Deputy Smith asked Dowdle to step out of the car. Deputy Smith testified that he checked Dowdle’s driver’s license and license plate. The search revealed that Dowdle’s driver’s license had been suspended and that the license plate was not registered to that car. Deputy Smith asked Dowdle whether there were any drugs or weapons in the car, and Dowdle told Deputy Smith that there were drugs underneath a hat on the passenger’s seat. Deputy Smith checked the car and found a rock-like substance underneath the hat, which was later analyzed by the Mississippi Crime Laboratory and determined to be 0.05 gram of cocaine. Deputy Smith also found a soda can, which appeared to be used as drug paraphernalia. Deputy Smith testified that Dowdle did not appear to be under the influence, and the soda can was not hot. Based upon his findings, Deputy Smith arrested Dowdle.

¶4. Dowdle was indicted as a habitual offender for possession of less than one gram of cocaine. The indictment also sought an enhanced penalty based on Dowdle’s prior drug-related offense. Dowdle was previously convicted on April 6, 1979, in the Clay County Circuit Court of grand larceny and sentenced to three years in the custody of the MDOC. Dowdle was also previously convicted on April 11, 1989, in the Clay County Circuit Court of possession of marijuana with intent to distribute and sentenced to three years in the custody of the MDOC.

¶ 5. At the trial, Dowdle testified that' the hat must have been in the .passenger’s seat before he got into the car. Dowdle stated that he did not notice the hat until he was stopped by Deputy Smith. Dowdle testified that he picked up the hat and saw the drugs sitting on the seat. On cross-examination, Dowdle was questioned about a prior inconsistent statement that he made to the police when he said: “Earl took his hat off and threw it in the seat and told me to have it, because I earned it.” Dowdle identified his initials on the statement, but he testified that the statement was incorrect. Dowdle also admitted that he had previously been convicted of perjury, which occurred on April 17, 2003, in the Clay County Circuit Court.

¶ 6. Earl testified that he keeps his used cars in an open field and that the cars are typically unlocked. However, Earl maintained that he cleans all of the cars before providing them to the purchasers, so there should not have'been anything left in the car that he sold to Dowdle. Earl also testified that he did not give Dowdle a hat, and the hat found in the car did not belong to him.

¶ 7. A Lowndes County jury convicted Dowdle of the crime. He was sentenced as a habitual offender and as a repeat drug offender to eight years in the custody of the MDOC and ordered to pay a $20,000 fine. Thereafter, Dowdle filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The trial court denied the motions. Aggrieved, Dowdle timely filed his notice of appeal.

ANALYSIS

¶ 8. Dowdle argues that the verdict was against the overwhelming weight of the evidence. However, his argument also attacks whether the State proved that he intentionally and knowingly possessed cocaine, which is an element of the crime. The legal sufficiency of the evidence and the weight of the evidence are separate issues; thus, we will address them as such.

I. Legal Sufficiency

¶ 9. A motion for a directed verdict or a motion for a JNOV challenges the legal sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). All of the credible evidence consistent with the defendant’s guilt must be viewed in the light most favorable to the State. Id. at (¶ 17). We will not disturb the trial court’s ruling 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; and where the evidence fails to meet this test it is insufficient to support a conviction.” Id. at (¶ 16) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Thus, the Court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond- a reasonable doubt.” Id. (citation omitted).

¶ 10. Dowdle was charged with possession of less than one gram of cocaine under Mississippi Code Annotated section 41-29-139 (Rev.2009), which makes it unlawful for a person intentionally or knowingly to possess a controlled substance. Dowdle argues that the evidence did not support a finding that he knowingly or intentionally possessed the cocaine. Dowdle maintains that the car was unlocked and sitting in an open field where anyone could have access to the car, suggesting that someone else put the cocaine in the car. Conversely, the State argues that the evidence supports a finding that Dowdle had constructive possession of the cocaine.

¶ 11. “Constructive possession may be established where the evidence, considered under the totality of the circumstances, shows that the defendant ‘conscientiously exercised control over the contraband.’ ” Ealey v. State, 967 So.2d 685, 689 (¶ 11) (Miss.Ct.App.2007) (quoting Dixon v. State, 953 So.2d 1108, 1112 (¶ 9) (Miss.2007)). The defendant’s proximity to the drugs is a factor in establishing constructive possession, but it is not determinative. Id. (citing Curry v. State, 249 So.2d 414, 416 (Miss.1971)). Other incriminating circumstances must be present to establish constructive possession. Id.

¶ 12. In this case, the evidence established that the cocaine was underneath a hat on the passenger’s seat of the car that Dowdle was driving. Deputy Smith testified that Dowdle kept looking at the hat and acting nervous. When Deputy Smith asked Dowdle if there were any drugs or weapons in the car, Dowdle stated that there was cocaine underneath the hat. Dowdle testified that he did not notice the hat on the seat until he was stopped by Deputy Smith, and he picked up the hat and saw the drugs on the seat before Deputy Smith approached the car. However, Earl testified that he had cleaned out the car before selling it to Dowdle and that there should not have been anything left in the car.

¶ 13. Viewing the evidence in the light most favorable to the State, we find that there is sufficient evidence to convict Dow-dle of having constructive possession of the cocaine; any rational juror could have found that the State proved all of the elements of the offense beyond a reasonable doubt. This argument is without merit.

II. Weight of the Evidence

¶ 14. A motion for a new trial challenges the weight of the evidence. Bush, 895 So.2d at 844 (¶ 12). This Court will not disturb the trial court’s denial of a motion for a new trial unless “[the verdict] is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id.

¶ 15. Again, Dowdle argues that the cocaine did not belong to him, suggesting that someone else put the cocaine in the car. Dowdle also contends that the evidence does not support his conviction because he was cooperative with the police; the drug paraphernalia found in the car was not hot; and he was not under the influence when he was stopped by Deputy Smith.

¶ 16. Dowdle’s arguments go to the weight and credibility of the evidence. It is within the jury’s province to determine the weight and credibility to give to the evidence and to resolve all conflicts in the evidence. Davis v. State, 995 So.2d 767, 774 (¶ 22) (Miss.Ct.App.2008). The jury heard Dowdle’s version of the events; the jury also had the State’s evidence to consider. Through the State’s evidence, the jury learned that Dowdle gave a prior inconsistent statement to the police regarding the hat. During the trial, Dowdle testified that he did not see the hat until he was stopped by Deputy Smith. However, in his statement to the police, Dowdle said that Earl had given him the hat. Earl testified that he did not give Dowdle a hat and that he had cleaned out the car before selling it to Dowdle. The jury also learned that Dowdle had previously been convicted of perjury.

¶ 17. Based on the verdict, the jury resolved any conflicts in the evidence in favor of Dowdle’s conviction. We find that the weight of the evidence supports the verdict. Accordingly, we will not disturb the judgment of conviction. This issue is without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF POSSESSION OF LESS THAN ONE GRAM OF COCAINE AND SENTENCE AS A HABITUAL OFFENDER OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PROBATION OR PAROLE, AND TO PAY A $20,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.