author: WALLER, Chief Justice,

text:
    Jeremy CAGE a/k/a “Jay” a/k/a Jeremy Lamar Cage v. STATE of Mississippi.
    No. 2013-KA-00813-SCT.
    Supreme Court of Mississippi.
    Oct. 30, 2014.

      Chokwe Antar Lumumba, Chokwe Lu-mumba, Jackson, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, John R. Henry, Jr., attorneys for appellee.
    Before WALLER, C.J., CHANDLER and KING, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. Jeremy Cage appeals his conviction in the Holmes County Circuit Court for statutory rape, arguing that the trial court erred in excluding certain evidence and in denying his motion for a new trial. Cage also claims that he was denied effective assistance of counsel. Finding no reversible error, we affirm Cage’s conviction and sentence.

FACTS

¶ 2. At around 9:30 p.m. on August 26, 2010, thirteen-year-old A.S., walked outside her house in Mileston, Mississippi, to feed her dogs. While she was feeding the dogs, a man grabbed her from behind and dragged her into a field adjacent to her house. The man pushed her to the ground, pulled her pants down, and began having sexual intercourse with her. A.S. could not identify the man at first because her eyes had not yet adjusted to the dark, but she was eventually able to identify him as her cousin Jeremy “Jay” Cage. She also recognized Cage by his voice. Shortly thereafter, A.S.’s brother walked outside and called for her, and Cage ran away. A.S. went back to her house and told her brother that she had been raped, but asked him not to tell anyone.

¶ 3. The next day at school, A.S. told her friend K.J. that she did not feel well. K.J. told Tamika Clark Garnett, one of A.S.’s teachers, that she thought something was wrong with A.S. When questioned by Garnett, A.S. revealed that she had been raped. Garnett sent A.S. to talk to Shinar Riley, the school’s guidance counselor. Riley called A.S.’s mother, Angel Bowman Spann, who picked A.S. up from school and took her to the police station in Lexington. A.S. told the police that she was feeding the dogs outside her house when Cage grabbed her from behind, dragged her into a field near the house, and raped her. A.S. then went to the hospital, where doctors performed a rape-kit examination on her.

¶ 4. The Holmes County Sheriffs Department obtained an arrest warrant for Jeremy Cage and an order to retrieve a DNA sample from him upon his arrest. Cage’s mother Melissa Cage York brought him to the police station on August 31, 2010. Cage was twenty-one years old at the time of his arrest. Melissa told Captain Sam Chambers with the Holmes County Sheriffs Department that she had last seen Cage on her front porch at around 8:00 p.m. on the night in question.

¶ 5. Upon his arrest, the police performed a buccal swab on Cage and sent the swab to the Mississippi Crime Lab in Jackson for testing. The Crime Lab compared DNA from Cage’s buccal swabs and DNA from a blood sample taken from A.S. to the DNA retrieved from the vaginal swab in A.S.’s rape kit. The DNA testing indicated that Cage could not be excluded as a contributor to the mixture of DNA retrieved from the vaginal swab, and the results of the test excluded more than ninety-nine percent of the population. There was no indication of any other contributing DNA, other than that of A.S. herself.

PROCEDURAL HISTORY

¶ 6. On April 29, 2011, a Holmes County grand jury indicted Cage with one count of statutory rape in violation of Section 97-3 — 65(l)(b) of the Mississippi Code. Cage’s trial commenced on February 11, 2013. Cage was represented at trial by Attorney Latrice Westbrooks. On February 12, 2013, Angel, A.S.’s mother, appeared in court with attorney Imhotep Alkebu-lan and filed an affidavit stating the following:

My daughter wishes and it is in my daughter’s best interest that the charges pending in cause No. 11-0029, in the Circuit Court of Holmes County, Mississippi, styled State of Mississippi vs. Jeremy Cage, be dismissed.... Me and my family have forgiven Jeremy. We do not want to see him go to prison for the rest of his life.... If we are called to testify in this matter we will so testify-

Alkebu-lan informed the court that he was representing Angel’s interests because she felt pressured by the prosecutors. In response, the prosecutors stated that this was the first time they had been informed of Angel’s unwillingness to participate in the ease. The prosecutor also stated that Melissa, Cage’s mother, had visited Angel at her house the night before trial began, implying that it was the defense who had put pressure on Angel. The trial court called Angel to the witness stand and questioned her about these events. Angel testified that Melissa had contacted Alke-bu-lan for her, and that she had spoken to him about the case, but she did not hire him. Angel stated that the prosecution of Cage had been hard on her family, as they were related, and she seemed to be under the impression that she had the authority to have the charges against Cage dismissed. The trial court explained to Angel and the attorneys that Cage’s prosecution rested in the State’s discretion. After considering Angel’s testimony, the trial court appointed a guardian ad litem to represent A.S.’s interests during the prosecution. The trial court also allowed the prosecution and the defense to speak with Angel to determine if she had altered her testimony since speaking with Alkebu-lan.

¶ 7. At trial, during the defense’s cross-examination of Angel, Cage’s attorney attempted to question her about the affidavit, asking her whether she had requested that the charges against Cage be dropped. The State objected to the relevance of this question, and the defense attorney attempted to withdraw the question. After hearing arguments from the parties, the trial court sustained the State’s objection, finding that the affidavit was not relevant to the issues in the case. The affidavit was never offered into evidence.

¶ 8. Cage attempted to present an alibi defense at trial. Melissa testified that Cage was sitting on the front porch of her house smoking marijuana with Henry MeClaurin at 9:00 p.m. on August 26, 2010, about thirty minutes before the time A.S. alleged she was raped. Melissa was inside her house watching “General Hospital” at the time. Sometime around 10:00 p.m., Melissa went to bed, and she did not see Cage again for the rest of the night. Melissa testified that she heard a car start up and assumed Cage and MeClaurin had left the house, although she could not state when this occurred. On cross-examination it was revealed that, in her statement to Captain Chambers, Melissa had stated that she had last seen Cage closer to 8:00 p.m. on the night in question. Melissa stated that Captain Chambers must have written the time down wrong.

¶ 9. Cage also called K.J. to testify. The prosecutors informed the judge that they had not expected K.J. to testify and did not know what the substance of her testimony would be. The trial court allowed the State and the defense to interview K.J. before she testified. The State then informed the trial court that KJ. was going to testify regarding A.S.’s prior sexual relationships. The State objected to this potential testimony under Mississippi Rule of Evidence 412, also known as the rape-shield law. To limit the possibility of prejudicial inadmissible evidence being revealed to the jury, the court allowed K.J. to proffer her testimony outside the presence of the jury. K.J. stated that, two days before reporting the rape, A.S. had told her that she thought she might be pregnant. K.J. relayed this information to Riley. Then, a week later, A.S. told K.J. she had lied about the rape because she did not want to tell her mother that she might be pregnant. K.J. stated that she did not believe A.S. when she said she had been raped because she knew A.S. to be a liar and “full of drama.” The trial court prohibited K.J. from testifying regarding specific instances of A.S.’s prior sexual behavior. The court did allow her to testify about A.S.’s statements to her about the rape, but restricted her from calling A.S. a liar without specific supporting evidence.

¶ 10. After the conclusion of the defense’s case-in-chief, the State recalled Riley and Captain Chambers as rebuttal witnesses. Riley testified that she had never had a conversation with K.J. about the possibility of A.S. being pregnant. She stated that she would have been required to tell A.S.’s mother if such a report had been made. Captain Chambers testified that Melissa had told him that she had last seen Cage at around “eight or eight something” on the night in question and had never mentioned 9:00 p.m. as a possible time frame. An audio recording of Melissa’s statement to Captain Chambers was played for the jury, and it corroborated Captain Chambers’s testimony.

¶ 11. At the conclusion of the trial, the jury returned a verdict finding Cage guilty of statutory rape. At the sentencing hearing, Cage gave a statement in which he admitted to the rape and asked the judge for leniency in sentencing. The trial court sentenced Cage to twenty years in the custody of the Mississippi Department of Corrections. Cage subsequently filed a motion for Judgment Notwithstanding the Verdict (JNOV), or alternatively, a New Trial, which the trial court denied. Cage, now represented by Attorney Chokwe An-tar Lumumba, appeals to this Court, raising the followings issues:

I. Whether the trial court improperly limited the defense’s cross-examination of Angel Spann.
II. Whether the trial court erred in excluding the testimony of K.J.
III. Whether Cage received ineffective assistance of counsel.
IV. Whether the trial court erred in denying Cage’s motion for a new trial based on newly discovered juror misconduct.

DISCUSSION

I. Whether the trial court improperly limited the defense’s cross-examination of Angel Spann.

¶ 12. The trial court prohibited Cage from asking Angel about her sworn affidavit in which she expressed a desire to have the charges against Cage dropped, finding that Angel’s wishes were not relevant to the issue of Cage’s guilt and had no effect on the State’s ability to proceed with the prosecution. On appeal, Cage claims that the trial court’s exclusion of this testimony prohibited the jury from accurately considering Angel’s possible interest, bias, or prejudice in the outcome of the case.

¶ 13. “Limitations placed on cross-examination are reviewed for abuse of discretion.” Jefferson v. State, 818 So.2d 1099, 1109 (Miss.2002). “As long as the trial court remains within the boundaries of the Mississippi Rules of Evidence, its decision to admit or exclude evidence will be accorded a high degree of deference.” Hickman v. State, 73 So.3d 1156, 1160 (Miss.2011) (citing Johnston v. State, 567 So.2d 237, 238 (Miss.1990)). An abuse of discretion will be found only where the defendant shows clear prejudice resulting from undue restraint on the defense. Davis v. State, 684 So.2d 643, 652 (Miss.1996).

¶ 14. Mississippi Rule of Evidence 611(b) “allows wide-open cross-examination so long as the matter probed is relevant.” Johnston v. State, 618 So.2d 90, 93 (Miss.1993); Miss. R. Evid. 611(b). However, the trial court has the authority to control the mode of interrogating witnesses so as to “(1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” Miss. R. Evid. 611(a). Proper subjects of cross-examination may include a witness’s possible “bias, prejudice, or interest ... for or against any party to the case[J” Miss. R. Evid. 616. See also Meeks v. State, 604 So.2d 748, 755 (Miss.1992) (citations omitted). The general rule of admissibility of evidence under Rule 616 is subject to the trial court’s discretionary finding that the evidence is relevant to the specific facts of the case. Tillis v. State, 661 So.2d 1139, 1142 (Miss.1995). Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Miss. R. Evid. 401.

¶ 15. We find that the trial court did not err in excluding evidence of Angel’s affidavit, as the statements in the affidavit have no relevance to the determination of the issues in the instant case. First, the statements in Angel’s affidavit had no tendency to make any of the facts constituting the offense charged more or less probable. See Miss. R. Evid. 401. If the State had probable cause to believe that Cage had committed statutory rape by having sexual intercourse with A.S., the decision of whether to prosecute Cage rested entirely in the State’s discretion. See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). The fact that Angel’s family had forgiven Cage and wanted the charges against him dropped does not make Cage’s guilt in the instant case more or less probable.

¶ 16. In addition, Angel’s affidavit was not relevant to show her bias, prejudice, or interest in the case. “Rule 616 must be interpreted as it relates to other rules of evidence, particularly M.R.E. 104, 401 and 402.” Tillis v. State, 661 So.2d 1139, 1142 (Miss.1995). Thus, before evidence of bias, prejudice, or interest can be admitted under Rule 616, “[i]t must have the tendency, in the case being tried, to make the facts to which the witness testified less probable than it would be without the evidence of bias.” Id. The statements in Angel’s affidavit have no tendency to make the facts to which she testified at trial less probable, as her affidavit does not support Cage’s argument that she had an' interest in the outcome of the case. Cage argues that Angel cooperated with the prosecutors only because she feared her children would be taken from her, but he offers no evidence to support this allegation. There is no evidence that Angel or A.S. ever attempted to retract their initial statements to the police. The statements in Angel’s affidavit do not contradict her trial testimony or the testimony of any of the other witnesses; on the contrary, Angel’s statement that she had forgiven Cage implies that she still believed he was the perpetrator of the rape at the time of trial. Accordingly, we find that the trial court did not abuse its discretion in limiting the defense’s cross-examination of Angel. This argument is without merit.

II. Whether the trial court erred in excluding the testimony of K.J.

¶ 17. The trial court allowed K.J. to testify regarding AS.’s statements that she had lied about the rape because she thought she was pregnant. However, the trial court prohibited K.J. from testifying regarding specific instances of A.S.’s past sexual behavior. On appeal, Cage argues that the trial court erred in excluding this testimony because it would have called into question A.S.’s credibility as a witness.

Cage also argues that KJ.’s testimony would have provided evidence of an alternate source of the DNA retrieved from A.S.’s rape kit. Again, the exclusion of evidence is reviewed for an abuse of discretion. Williams v. State, 54 So.3d 212, 213 (Miss.2011).

¶ 18. The trial court excluded KJ.’s testimony pursuant to Mississippi Rule of Evidence 412. “[Rule] 412 is designed to prevent the introduction of irrelevant evidence of the victim’s past sexual behavior to confuse and inflame the jury into trying the victim rather than the defendant.” Hughes v. State, 735 So.2d 238, 273 (Miss.1999). Rule 412 provides that, in a sexual-offense case, the past sexual behavior of the alleged victim generally is not admissible. See Miss. R. Evid. 412(a), (b). However, evidence of the victim’s past sexual behavior, other than opinion or reputation evidence, may be admissible if “offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of the semen, pregnancy, disease, or injury[.]” Miss. R. Evid. 412(b)(2)(A). The party intending to offer evidence of specific instances of the victim’s past sexual behavior under Rule 412(b) “shall make a written motion to offer such evidence no later than fifteen days” prior to the trial date. Miss. R. Evid. 412(c)(1) (emphasis added). This motion must be accompanied by a written offer of proof. Miss. R. Evid. 412(c)(2). The trial court has the discretion to allow such motion to be made at a later date, including during trial, if it concludes “either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case.” Miss. R. Evid. 412(c)(1).

¶ 19. Cage complains that K.J.’s proffered testimony was admissible under Rule 412(b)(2)(A) as evidence of an alternate source of the DNA retrieved from AS.’s rape kit. But Cage failed to file a motion and accompanying offer of proof concerning this evidence within the time limit specified in Rule 412(c). And it does not appear that this evidence was newly discovered and could not have been obtained earlier through the exercise of due diligence. See Miss. R. Evid. 412(c)(1). Because Cage failed to timely comply with the requirements of Rule 412(c), the trial court did not err in prohibiting K.J. from testifying about A.S.’s past sexual behavior. See Aguilar v. State, 955 So.2d 386, 393 (Miss.Ct.App.2006); Levy v. State, 724 So.2d 405, 409 (Miss.Ct.App.1998). This issue is without merit.

III. Whether Cage received ineffective assistance of counsel.

¶ 20. Cage argues that he received ineffective assistance of counsel because his trial attorney failed to secure a serologist or DNA analyst to serve as an expert witness for the defense, even though the trial court had granted Cage’s motion for application of funds to hire such an expert. Cage claims that this failure irreparably damaged his defense.

¶ 21. When assessing an ineffective-assistance claim, this Court applies the two-pronged standard set by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first prong of the Strickland test requires the appellant to show that counsel’s performance was deficient. Id. at 686, 104 S.Ct. 2052. There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Under the second prong, even if counsel’s conduct is deemed to be “professionally unreasonable,” the jury’s verdict must stand “if the error had no effect on the judgment.” Id. at 691, 104 S.Ct. 2052. Accordingly, the defendant must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2Q52.

¶ 22. “Generally, ineffective assistance claims are more appropriately brought during post-conviction proceedings.” Bateman v. State, 125 So.3d 616, 633 (Miss.2013) (citing Archer v. State, 986 So.2d 951, 955 (Miss.2008)). “This is because during direct appeals the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately.” Archer, 986 So.2d at 955. However, such a claim may be raised on direct appeal “if such issues are based on facts fully apparent from the record.” Miss. RApp. P. 22(b).

¶ 23. We find that the record on appeal does not contain sufficient evidence for this Court to address Cage’s ineffective-assistance claim. At trial, the State’s expert witness testified that the DNA information collected from A.S.’s rape kit could not exclude Cage as a contributor. She also stated that the results of the DNA testing in this case would exclude more than ninety-nine percent of the population. The record does not reveal whether an independent DNA analyst would agree with or dispute the Crime Lab analysts’ findings. Moreover, it is unclear whether Cage’s trial counsel actually failed to procure the services of an expert witness after the trial court authorized funding for one, or whether she consulted an expert and chose not to call the expert at trial. The appropriate procedure in this case is to deny Cage’s ineffective-assistance claim without prejudice, preserving his right to raise the issue through a petition for post-conviction relief. See Archer, 986 So.2d at 955.

IV. Whether the trial court erred in denying Cage’s motion for a new trial, based on newly discovered juror misconduct.

¶ 24. After the jury returned its verdict, Cage filed a motion for judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial. In his motion, Cage argued that he was entitled to a new trial due to jury misconduct during the deliberation of Cage’s guilt or innocence. Cage claimed that he had obtained newly discovered evidence indicating that one of the jurors who had served on his case had not answered a question truthfully during voir dire. On appeal, Cage argues that the interests of justice demand that he be granted a new trial based on this newly discovered evidence.

¶ 25. In support of his argument, Cage presents this Court with the affidavit of his aunt, Sheila M. Head. This affidavit is not a part of the record from the trial court, but was attached to Cage’s record excerpts on appeal. Cage filed a motion with this Court seeking to amend the record to include Head’s affidavit. This Court dismissed Cage’s motion, instructing him to seek relief from the trial court, but it appears that Cage failed to take any further action.

¶ 26. We find that Cage has failed to meet his obligation to provide a complete record of this issue on appeal. Accordingly, this issue is not properly before the Court. The appellant has a duty to justify his assignments of error with all the information necessary to establish an understanding of the matters relied upon for reversal. Pauley v. State, 113 So.3d 557, 564 (Miss.2013). In addition, this Court’s consideration of issues on appeal “will be confined strictly to the record, both in terms of facts occurring prior to trial and to facts occurring since trial. This rule holds true regardless of the nature of the facts sought to be placed before this Court[.]” Phillips v. State, 421 So.2d 476, 478 (Miss.1982). Cage failed to include in the record on appeal the transcript of the hearing on his post-trial motions and the trial court’s order denying his post-trial motions. Furthermore, Head’s affidavit is not a part of the record, as it was never presented to the trial court. Thus, this Court is unable to determine whether the trial court had an opportunity to review the jury-misconduct issue Cage now raises before this Court. Because Cage did not fulfill his duty to provide a complete record for this Court’s review, we decline to address the merits of his argument.

CONCLUSION

¶ 27. For the foregoing reasons, we affirm Cage’s conviction and sentence.

¶ 28. CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. APPELLANT SHALL PAY $500 ATTORNEY FEES AND $376 COURT FEES.

DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . We refer to the minor victim and other minor witnesses by their initials to protect their identities.

      . A.S.’s birth date is September 20, 1996.

      . Cage's birth date is March 31, 1989.

      . "(1) The crime of statutory rape is committed when: ... (b) A person of any age has sexual intercourse with a child who: (i) Is under the age of fourteen (14) years: (ii) Is twenty-four (24) or more months younger than the person; and (iii) Is not the person’s spouse.” Miss.Code Ann. § 97-3-65(l)(b) (Rev. 2014).

      . Melissa and Cage lived on the same road as A.S. and her family.


source: Caselaw Access Project

author: ROBERTS, J., LEE, C.J.,

license: Public Domain

text:
    Donald Keith SMITH a/k/a Donald Smith a/k/a Donald K. Smith, Appellant v. STATE of Mississippi, Appellee. Donald Keith Smith a/k/a Donald Smith a/k/a Donald K. Smith, Appellant v. State of Mississippi, Appellee.
    Nos. 2012-CP-00159-COA, 2012-CP-00926-COA.
    Court of Appeals of Mississippi.
    Oct. 29, 2013.
    Rehearing Denied Feb. 18, 2014.

      Donald Keith Smith, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. Following his June 3, 2009 guilty plea to one count of kidnapping, one count of armed carjacking, and one count of felony fleeing, Donald Keith Smith sought relief under the Uniform Posb-Conviction Collateral Relief Act (UPCCRA). Smith’s first motion for post-conviction relief (PCR) was summarily dismissed by the Jackson County Circuit Court. Smith appealed this decision and, three weeks later, filed another PCR motion. The circuit court summarily dismissed Smith’s subsequent PCR motion as a successive writ. Smith also appealed this decision of the circuit court. A single judge on this Court consolidated the two appeals of Smith’s PCR motions. This case requires us to determine whether the circuit court properly disposed of Smith’s separate PCR motions, including the argument that Smith was entitled to a mental evaluation before his guilty plea could be accepted. Finding no error, we affirm the circuit court’s summary dismissals of both Smith’s PCR motions.

FACTS AND PROCEDURAL HISTORY

¶ 2. The crimes occurred on September 2, 2007, when Smith held Dr. Evalyn Jerkins and Rebecca Alleneder at knife point in Dr. Jerkins’s car, and then he failed to obey police officers’ directives to stop the car. He was indicted on March 28, 2008, on two counts of kidnapping, one count of carjacking, and one count of felony evasion. Smith pleaded guilty in the circuit court to one count of kidnapping, one count of armed-carjacking, and one count of felony fleeing. On the kidnapping charge, Smith was sentenced to thirty years, with eighteen years to serve and twelve years suspended. On the armed carjacking charge, Smith was also sentenced to thirty years, with eighteen years to serve and twelve suspended. On the felony-fleeing charge, Smith was sentenced to serve five years. All Smith’s sentences were ordered to be served concurrently. Smith had been in custody since September 2, 2007; therefore, he also received credit for the twenty months he had been in custody. One count of kidnapping and, in a separate cause number, one count of felony shoplifting were dismissed. Smith’s pleas and sentences were consistent with this plea bargain with the State.

¶ 3. Smith timely filed two PCR motions. The first was filed in December 2011, and in it he raised issues concerning the armed-carjacking conviction. Finding that Smith was not entitled to any relief, the circuit court summarily dismissed this PCR motion on' January 6, 2012. Smith filed a notice of appeal on January 30, 2012. The second PCR motion was filed three weeks later, on February 22, 2012. In this second PCR motion, Smith argued: he was entitled to a competency hearing prior to entering his guilty plea; there was not a proper factual basis presented for the circuit court to accept his guilty plea; his counsel was ineffective; and the cumulative error resulted in a deprivation of his fundamental rights. On May 25, 2012, the circuit court summarily dismissed Smith’s second PCR motion as a successive writ not within any of the exceptions found in Mississippi Code Annotated section 99-39-23(6) (Supp.2012). The circuit court stated: “Because there an [sic] issue of competency, however, [the circuit court], in an abundance of caution, will consider this issue [of a mental evaluation and competency hearing] in the alternative.” The circuit court explained that it had not made a finding that reasonable grounds existed to indicate that Smith was incompetent; therefore, Uniform Rule of Circuit and County Court 9.06, which requires a mental evaluation and competency hearing if a determination that reasonable grounds exist to question a defendant’s competency, had not been invoked in this case. Smith appealed this decision. The appeals were consolidated.

¶ 4. Smith argues several issues, which we have combined as follows: (1) his court-ordered mental evaluation was never conducted;. (2) his counsel was ineffective; (3) there was no factual basis for the armed-carjacking charge; and (4) cumulative error deprived him of his right to a fair plea hearing.

STANDARD OF REVIEW

¶ 5. When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review. Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss.Ct.App.2012).

DISCUSSION

I. MENTAL EVALUATION

¶ 6. In his second PCR motion, Smith argues his guilty plea was invalid because no mental evaluation was conducted prior to his plea hearing. On November 13, 2008, an “order of continuance and for psychiatric evaluation” was filed based on an ore tenus motion by Smith. In this order, the circuit court ordered that Smith “be examined by some competent psychiatrist for a determination of [Smith’s] mental and/or physical condition.” On the same day, an agreed order of continuance was also filed. In that order, the circuit court stated that Smith is “to undergo a psychiatric evaluation at his own expense [.]” (Emphasis added). Additionally, the circuit court entered an order of transport on January 29, 2009, ordering that the sheriffs department transport Smith to the Mississippi State Hospital in Whitfield, Mississippi, for the evaluation. Smith submits in his PCR motion and brief that he was transported to Whitfield, but an evaluation was never performed. There is nothing in the record to indicate that Smith was transported to Whitfield, or that an evaluation was ever performed. The record is also void of a motion by defense counsel claiming that Smith was incompetent or mentally ill. Simply, there is nothing in the record to suggest that the circuit court was put on notice that Smith’s competency to stand trial or enter a guilty plea was a concern.

¶ 7. A careful review of the record before us shows that while the circuit court did order Smith to undergo a mental evaluation at Smith’s request and expense, at no point was there a determination made by the circuit court that Smith’s competency to stand trial or enter a guilty plea was ever questioned. There is no written motion explaining Smith’s request for a mental evaluation, nor is there a transcript of the ore tenus motion made before the circuit court. A defendant’s request for a mental evaluation could be for a variety of other issues, such as mitigation of punishment during a sentencing hearing or in anticipation of relying on a claim of insanity at the time of the crime. According to Smith’s father’s affidavit, Smith was transported to Whitfield for evaluation, but one was never performed because he could not afford to pay for the evaluation. If competency was truly the issue, Smith could have required the State to pay for the evaluation pursuant to Mississippi Code Annotated section 99-13-11 (Rev.2007), which mandates that the county pay for a mental examination when the defendant’s mental condition is questioned as to his ability to make a defense.

¶ 8. Importantly, beyond granting the motion for a mental evaluation, the circuit court never made a finding that there were reasonable grounds to question Smith’s mental condition. During his guilty-plea hearing, Smith acknowledged that he had been treated for mental illnesses in the past, specifically depression and some type of psychosis, and that he was presently on medication for those conditions. He confirmed that his medications would not hinder his ability to understand the process of pleading guilty. Smith was able to name the crimes he was charged with committing, as well as the sentences relating to each crime. Smith additionally informed the circuit court that he “took [Dr. Jerkins’s] vehicle while she was a passenger in it, and did not stop for the police.” He also agreed that he did this using a knife. Smith had limited recollection of the details of the crime because he was under the influence of illegal narcotics at the time of the crime. Lastly, Smith apologized to Jerkins. Our review of Smith’s plea colloquy attests that all of his answers to the circuit court’s questions were logical and coherent; the answers did not cause any concern as to his competency to enter his guilty plea.

¶ 9. Thus, without more, we cannot say that the circuit court’s decision to order the mental evaluation was simultaneously a finding that reasonable grounds existed to question Smith’s competency. Additionally, because there is nothing in the record to show that the circuit court made the threshold finding that there existed reasonable grounds to question Smith’s competency, Rule 9.06 simply is not applicable to the facts in the present case. Rule 9.06 requires a trial court to order a mental examination once it “receives evidence from any source raising a reasonable ground to believe the defendant lacks competence to stand trial” or enter a guilty plea. Bradley v. State, 116 So.3d 1093, 1099-1100 (¶ 30) (Miss.Ct.App.2013). The record is void of any other indication that Smith’s competency was specifically placed at issue; therefore, he was not entitled to a mental evaluation or subsequent competency hearing as outlined in Rule 9.06.

¶ 10. With respect, we find that the dissent misses the issue by arguing that Rule 9.06 is applicable to the present case. As we explained above, Smith’s competency was never questioned by either his two hired attorneys or the circuit court. The circuit court’s execution of an agreed order that Smith’s case be continued and he undergo a psychiatric evaluation at his own expense is simply not enough to support a finding that Smith’s competency was at issue. If competency is not an issue, Rule 9.06 and its requirements are just not applicable. Moreover, if competency was an issue, the mental evaluation would have been expense-free to Smith. Although not explicitly stated, the dissent would have this Court overrule its prior case of Evans v. State, 984 So.2d 308 (Miss.Ct.App.2007). In Evans, the circuit court suggested a psychiatric evaluation be performed on Huey Evans; however, one was never performed nor was a competency hearing held. Id. at 312 (¶ 8). This Court held that:

[I]f the trial court does not make a threshold finding that a reasonable ground [to question a defendant’s competency] exists ... then the Rule 9.06 requirement to order ... a competency-hearing never arises. In other words, if a trial judge orders a psychiatric evaluation without a reasonable question as to the defendant’s competency, he is not also required [to] order a competency hearing.

Id. at 313 (¶ 9) (emphasis added). Based on the above-quoted language, a circuit judge may order a psychiatric evaluation without questioning a defendant’s competency and without invoking Rule 9.06, as was also done in the present case. We find that the facts in the present case are similar to Evans, and that Evans remains good law. Further, the dissent takes an inconsistent approach in its disposition by explaining that the supreme court has recently held that retrospective competency hearings do not cure a failure to conduct a psychiatric evaluation and competency hearing prior to trial, but the dissent then seeks to reverse and remand this case for Smith to undergo a psychiatric evaluation and competency hearing — in essence, a retrospective competency hearing.

¶ 11. In conclusion, we find that Smith's claim that he was entitled to a mental evaluation is procedurally barred as a successive writ for which there is no exception. Alternatively, we find this issue to be without merit..

II. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 12. Smith also argues his trial counsel was ineffective for failing to thoroughly investigate his mental illness and ensure the mental evaluation was conducted. An ineffective-assistance-of-counsel claim requires a showing that (1) counsel’s performance was deficient, and (2) the defendant was prejudiced as a result of that deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The Mississippi Supreme Court has consistently held that the UP-CCRA’s procedural bars ‘apply to [PCR] claims based on ineffective assistance of counsel.’ ” Williams v. State, 110 So.3d 840, 844 (¶ 21) (Miss.Ct.App.2013) (quoting Crosby v. State, 16 So.3d 74, 78 (¶ 8) (Miss.Ct.App.2009)). However, merely raising a claim of ineffective assistance of counsel is insufficient to surmount the procedural bars. Smith v. State, 922 So.2d 43, 47 (¶ 9) (Miss.Ct.App.2006) (citing Bevill v. State, 669 So.2d 14, 17 (Miss.1996)). Moreover, in PCR cases, “where a party offers only his affidavit, then his ineffective[-]assistance[-]of[-]counsel claim is without merit.” Brooks v. State, 89 So.3d 626, 628 (¶ 6) (Miss.Ct.App.2011) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995)).

¶ 13. Smith provides affidavits from his family members stating that they informed Smith’s two privately retained attorneys about his prior mental-health history, and that his father had wanted to speak at Smith’s guilty-plea hearing; however, no argument is made that his attorneys were deficient.

¶ 14. “In the context of guilty pleas, ... the defendant must show that, were it not for counsel’s errors, he would not have [pled] guilty and would have insisted on going to trial.” Burrough v. State, 9 So.3d 368, 375 (¶ 22) (Miss.2009). Smith has failed to present any evidence beyond mere assertions that he would have insisted on going to trial. The record shows that Smith received a plea deal as a result of his attorneys’ efforts. One count of kidnapping was dropped as was an unrelated charge of felony shoplifting. Smith indicated at his guilty-plea hearing and in his guilty-plea petition that he was satisfied with the services of his attorneys.

A defendant’s “declarations during the plea colloquy that he was satisfied with the services of his lawyer are presumptively true. ‘Solemn declarations in open court carry a strong presumption of verity.’ ” Fair v. State, 102 So.3d 1165, 1168-69 (¶ 11) (Miss.Ct.App.2012) (quoting Bell v. State, 754 So.2d 492, 495 (¶7) (Miss.Ct. App.1999)).

¶ 15. We find Smith’s claims of ineffective assistance to be proeedurally barred as a subsequent writ; however, procedural bar notwithstanding, this issue is without merit.

III. FACTUAL BASIS FOR ARMED CARJACKING

¶ 16. Smith next contends the trial court erred in applying the successive-writ bar to his claim concerning his armed-carjacking charge. In both his PCR motions, Smith argued there was no factual basis for the armed-carjacking charge. In its ruling on Smith’s first PCR motion, the trial court found no merit to Smith’s claims. In denying Smith’s second PCR motion, the trial court noted it had previously ruled on this issue and denied relief pursuant to the successive-writ bar. See Miss.Code Ann. § 99-39-23(6). Procedural bar notwithstanding, Dr. Jerkins addressed the circuit court at Smith’s guilty-plea hearing, and, prior to the circuit court’s formal acceptance of Smith’s plea, she provided a more-than-sufficient factual basis to conclude that Smith’s conduct fell “within the ambit of that defined as criminal.” Smith v. State, 86 So.3d 276, 280 (¶ 11) (Miss.Ct.App.2012) (citations and internal quotations marks omitted). Therefore, this issue is without merit.

VI. CUMULATIVE ERROR

¶ 17. “Reversal based upon cumulative error requires a finding or findings of error.” Madden v. State, 42 So.3d 566, 574 (¶ 31) (Miss.Ct.App.2010). Because we find no error on any of Smith’s issues, there can be no cumulative error.

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

IRVING AND GRIFFIS, P JJ., ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. LEE, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY BARNES AND JAMES, JJ.

LEE, C.J.,

dissenting:

¶ 19. With respect to the majority, I am compelled to dissent. The majority finds that there is nothing in the record to show the trial court made a threshold finding that reasonable grounds existed for questioning Smith’s competency; thus, Uniform Circuit and County Court Rule 9.06 is inapplicable. However, Rule 9.06 states:

If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court....

In Sanders v. State, 9 So.3d 1132, 1136 (¶ 16) (Miss.2009), the Mississippi Supreme Court held that the “plain language” of Rule 9.06 requires a “competency hearing once a trial court orders a psychiatric evaluation to determine competency to stand trial.” This case is somewhat different, as Sanders’s psychiatric evaluation was conducted but no subsequent competency hearing was held. In this case, Smith’s psychiatric evaluation was never conducted.

¶ 20. The Mississippi Supreme Court recently held that “when a motion for a mental examination has been granted, such an examination must occur, and then a separate competency hearing must be conducted before trial begins.” Coleman v. State, 2009-CT-01350-SCT, 2013 WL 3067576, at *5 (¶ 12) (Miss. June 20, 2013). The State recommends this Court reverse for a retrospective competency hearing. However, the court in Coleman stated that the “failure to follow this procedure is not cured by a retrospective competency hearing.” Id. at *7 (¶ 19).

¶21. In Smith’s case, the trial court ordered the evaluation to occur and subsequently signed an order to transport Smith to Whitfield for the psychiatric evaluation. I cannot determine from the record why Smith’s evaluation was never conducted— maybe due to lack of funds on Smith’s part. Whatever the case, it seems fundamentally unfair for a trial court to order an evaluation — and the trial court must have had reasons to order the evaluation and continue Smith’s case until the evaluation was completed — then overlook the fact that no psychiatric evaluation occurred. The role of making medical diagnoses is best suited for medical professionals, not the courts. I would reverse and remand for Smith to undergo his court-ordered mental evaluation and for the resulting competency hearing.

BARNES AND JAMES, JJ., JOIN THIS OPINION IN PART.

      . We note that Smith raised this issue in his second PCR motion, which would normally be barred as a successive writ under section 99-39-23(6). However, "[e]rrors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA”. Rowland v. State, 42 So.3d 503, 508 (¶ 16) (Miss.2010). Mere assertions of error affecting a fundamental constitutional right are insufficient to defeat the procedural bars, as there must appear to be truth to the assertions. Evans v. State, 115 So.3d 879, 881 (¶ 3) (Miss.Ct.App.2013) (citing Stovall v. State, 873 So.2d 1056, 1058 (¶ 7) (Miss.Ct. App.2004)). Procedural bar notwithstanding, we address Smith's claim.

      . Section 99-13-11 provides:
      In any criminal action in the circuit court in which the mental condition of a person indicted for a felony is in question, the court or judge in vacation on motion duly made by the defendant, the district attorney or on the motion of the court or judge, may order such person to submit to a mental examination by a competent psychiatrist or psychologist selected by the court to determine his ability to make a defense; provided, however, any cost or expense in connection with such mental examination shall be paid by the county in which such criminal action is pending.

      (Emphasis added).

      . Smith attaches a litany of prior mental-health history records to his brief; however, these records were never presented to the circuit court for review. Because it is not part of the official record, we cannot consider these documents for the purpose of this appeal. See Necaise v. State, 916 So.2d 553, 556 (¶ 6) (Miss.Ct.App.2005) (citing Fairley v. State, 812 So.2d 259, 263 (¶ 10) (Miss.Ct.App. 2002)).


author: ROBERTS, J.,

text:
    Timothy MOSBY, Appellant v. Aurora CARES d/b/a Tara Cares, LLC and Pennsylvania Manufacturers Association Ins. Co., Appellees.
    No. 2013-WC-01160-COA.
    Court of Appeals of Mississippi.
    April 1, 2014.
    Rehearing Denied July 29, 2014.
    Certiorari Denied Oct. 30, 2014.

      Timothy Mosby, appellant, pro se.
    John Lewis Hinkle IV, Ridgeland, attorney for appellees.
    Before LEE, C.J., ROBERTS and JAMES, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Timothy Mosby filed a claim for benefits with the Mississippi Workers’ Compensation Commission (“Commission”) for injuries he suffered while working for Tara Cares LLC. The Commission denied Mosby’s request for permanent partial disability benefits. Mosby appeals and argues that the Commission improperly weighed the evidence. We find that the Commission’s decision was supported by substantial evidence. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 18, 2008, Mosby injured his lower back while working at Cleveland Nursing and Rehab, a facility supported by Tara Cares. Mosby was thirty-seven years old at that time. He was initially treated by Dr. Charles Brock at Cleveland Medical Clinic. Dr. Brock diagnosed Mos-by with back strain. According to Dr. Brock, an MRI of Mosby’s back indicated that he had “some disc bulges,” but they were “chronic findings with nothing exactly acute found.” Mosby requested a second opinion, so Dr. Brock referred him to Dr. Jimmy Miller, a neurosurgeon.

¶ 3. Dr. Miller evaluated Mosby on September 3, 2008. After evaluating Mos-by and reviewing his MRI, Dr. Miller’s impression was that Mosby had “[m]ild lumbar spondylosis.” Dr. Miller referred Mosby to anesthesiologist and pain-management physician, Dr. Ahmed Aziz.

¶ 4. Meanwhile, Mosby continued to attend follow-up appointments with Dr. Brock. On September 29, 2008, Dr. Brock released Mosby to return to work the next day. Dr. Brock specified that Mosby should receive “modified duty.” A note from Dr. Brock provides the following guidelines “i.e., folding clothes, no heavy lifting, [and] no driving long distances.” When Mosby returned to work, he was offered light duties that consisted of folding clothes and wrapping silverware. He was assured that no lifting, pulling, walking, resident care, or driving would be required. Mosby’s employer also gave Mosby the option to use a chair or stool.

Mosby signed a form acknowledging that he was offered work within his restrictions, but he chose to resign. He did not return to work. In October 2008, Mosby filed a petition to controvert with the Commission.

¶ 5. Mosby continued to attend appointments with Dr. Aziz. Dr. Aziz primarily treated Mosby with pain medications. Dr. Aziz’s medical records indicate that Mosby suffered from degenerative disc disease.

¶ 6. During December 2009, Mosby began to attend appointments with Dr. Nathan Brown. Dr. Brown’s records indicate that Mosby began seeing him because he wanted to transfer from Dr. Brock’s care. The record contains Dr. Brown’s handwritten notations, which are difficult to read. However, Dr. Brown’s records contain references to Mosby’s statements that he was suffering from pain due to an injury at his former job. Dr. Brown also stated that Mosby suffered from “lumbar disc disease” and degenerative joint disease.

¶ 7. At the request of Mosby’s former attorney, neurosurgeon Dr. Craig Clark evaluated Mosby. Dr. Clark stated that there were no clinical findings related to Mosby’s lumbar injury. Dr. Clark also found that Mosby needed no further treatment, and recommended that Mosby undergo a functional-capacity exam (FCE) to address potential restrictions. Dr. Clark’s records state that he “cannot tell [Mosby] that he is not hurting, but his exam is nonfocal, and shows nothing that will require surgery.” Dr. Clark found that Mosby had reached maximum medical improvement, and assigned Mosby a whole-body-impairment rating of zero percent.

¶ 8. Chad Barker of Tupelo Physical Therapy performed the FCE on Mosby on December 10, 2010. According to Barker, Mosby said that he had been told “that if [he] lift[s] anything or do[es] anything like play sports, then [he is] within one inch of being paralyzed.” When Barker further questioned the validity of that statement, Mosby said, “Well I may have added that little extra bit. You know it is bad. I may not be paralyzed, but it is really bad.” Barker reported that Mosby became increasingly agitated during the FCE. Ultimately, Barker had to terminate the FCE. Barker later reported that Mosby had “self-limited” on all tasks, and he had a substantial amount of “non-organic findings.” Barker released Mosby to return to work with no restrictions or limitations.

¶ 9. On October 7, 2011, Mosby underwent a Commission-ordered independent medical evaluation (IME) with Dr. Jeffrey Summers. During the IME, Mosby told Dr. Summers that he had osteoarthritis. Dr. Summers stated that osteoarthritis “would be consistent with his clinical presentation.” Following the IME, Dr. Sum■mers opined that nothing was preventing Mosby from returning to essentially normal activities. Dr. Summers further opined that Mosby’s “problems do not appear to be posttraumatic, but rather more related to a diffuse joint pain.” According to Dr. Summers, Mosby’s complaints “would not appear to be related to a specific work injury.”

¶ 10. After Dr. Summers’s IME, Mosby sought an evaluation from Dr. Rommel Childress. Dr. Childress stated that he reviewed Mosby’s medical records, but he did not specifically address any of the opinions of the physicians who had previously evaluated Mosby. According to Dr. Childress, Mosby’s injury at work “has tended to aggravate” Mosby’s arthritis and spinal stenosis. Dr. Childress assigned Mosby a fourteen percent impairment rating “to the body as a whole.”

¶ 11. After a hearing, the administrative judge (AJ) found that Mosby sustained a compensable work-related injury, and awarded Mosby approximately $260 in temporary total disability benefits. The AJ also awarded Mosby permanent partial disability benefits of $25 per week, for a total of 450 weeks. The AJ further ordered Tara Cares to pay for Mosby’s pain-management treatment with Dr. Aziz and physical therapy.

¶ 12. Mosby appealed to the Commission, and Tara Cares cross-appealed. The Commission affirmed the AJ’s decision regarding temporary total disability benefits. But the Commission reversed the AJ’s decision to award Mosby permanent partial disability benefits of $25 per week for 450 weeks. The Commission further held that Tara Cares was not obligated to pay for any ongoing medical treatments for Mos-by. Mosby appeals.

STANDARD OF REVIEW

¶ 13. “In reviewing appeals from rulings of the ... Commission, this Court must resolve whether a quantum of credible evidence supports the Commission’s decision.” Union Camp Corp. v. Hall, 955 So.2d 363, 368 (¶ 23) (Miss.Ct. App.2007). “We may not resolve conflicts in the evidence. Rather, we presume that the trier of fact, the Commission, resolved all conflicts in evidence.” Id. (internal citation omitted). We employ a highly deferential standard of review. Id. “Essentially, we will overturn the Commission if its decision was arbitrary and capricious.” Id. ‘We will also overturn the Commission if its decision was based on an error of law or an unsupported finding of fact.” Id.

ANALYSIS

¶ 14. Mosby argues that the Commission applied undue weight to the opinions of Dr. Brock, Dr. Miller, Dr. Clark, Dr. Summers, and Barker. According to Mosby, the opinions of Dr. Aziz, Dr. Brown, and Dr. Childress should outweigh the opinions of the physicians who found that he was not suffering from an ongoing work-related injury. Essentially, Mosby invites us to reweigh the evidence.

¶ 15. “As with any fact-finder, the Commission is entitled to rely upon the evidence and reasonable inferences.” Smith v. Tronox LLC, 76 So.3d 774, 778 (¶ 14) (Miss.Ct.App.2011). If the Commission’s findings of fact “are supported by substantial evidence,” this Court will affirm on appeal. Id. “In other words, this Court will reverse an order of the ... Commission only where such order is clearly erroneous and contrary to the overwhelming weight of the evidence.” Id. “Unless common knowledge suffices, medical evidence must prove not only the existence of a disability but also its causal connection to the employment.” Id.

¶ 16. Dr. Aziz is an anesthesiologist and pain-management physician. During a deposition, Dr. Aziz testified that he reviewed Mosby’s MRI and found a central disc protrusion, but it was not impinging on any nerve roots. Dr. Clark, a neurosurgeon, explained that a protrusion does not cause back pain when there is no nerve compression. Dr. Aziz also indicated that the MRI depicted lateral recessed stenosis. According to Dr. Aziz, lateral recessed stenosis caused Mosby to suffer from radiculopathy. Dr. Clark testified that Mosby was not suffering from radicu-lopathy during his examination. Dr. Clark further explained that “radiculopathy shouldn’t come and go,” and “[t]here should be consistent motor and reflex findings to indicate that a certain nerve root is the problem.” Additionally, Dr. Aziz never reviewed Mosby’s MRI. Consequently, there was substantial evidence supporting the Commission’s decision to weigh Dr. Clark’s testimony more heavily than Dr. Aziz’s.

¶ 17. Dr. Brown never testified by deposition or otherwise. Dr. Brown merely recorded Mosby’s statements that he suffered an injury at work. Dr. Brown’s handwritten records contain references to the concept that Mosby suffered from degenerative joint disease. But Dr. Brown never opined that Mosby’s degenerative joint disease was related to the injury that he sustained at work.

¶ 18. Dr. Childress did not testify. Although he concluded that Mosby’s injury at work “has tended to aggravate” Mosby’s arthritis and spinal stenosis, Dr. Childress did not specifically address any of the opinions of the physicians who had previously evaluated Mosby. It was within the Commission’s discretion to assign Dr. Chil-dress’s opinion less weight than physicians who further elaborated on Mosby’s condition.

¶ 19. Finally, Mosby contends that the testimony of his treating physicians should be superior to that of the other expert physicians. We note that Dr. Brock was also Mosby’s treating physician for some time. In any event, this Court has held

[Wjhile a treating physician’s opinion is without question of great import, the Commission is not required to abide by it or required to give it any greater weight than other physicians’ opinions. It is the sole responsibility of the Commission to determine the credibility of the witnesses before it and, when conflicts in credible evidence arise, to determine where the preponderance of the evidence lies. Regardless of whether the Commission makes the decision to rule in line with a treating physician’s opinion, we must affirm its decision so long as it is supported by substantial evidence.

Richardson v. Johnson Elec. Auto., Inc., 962 So.2d 146, 152 (¶ 16) (Miss.Ct.App. 2007). Dr. Brock, Dr. Miller, Dr. Summers, Dr. Clark, and Barker all found that Mosby had no permanent impairment or work restrictions related to his injury at work. “An appellate court may not simply reweigh the evidence and substitute its decision for that of the Commission. Indeed, this Court has a duty to defer to the Commission when its decision can be supported.” Anthony v. Town of Marion, 90 So.3d 682, 687 (¶ 14) (Miss.Ct.App.2012). Because there was substantial evidence to support the Commission’s decision, we affirm its judgment.

¶ 20. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . "Spondylosis is a condition in which bony abnormalities compress the spine.” Spencer v. Tyson Foods Inc., 869 So.2d 1069, 1074 (¶ 21) (Miss.Ct.App.2004).

      . At times, the record refers to Dr. Aziz as Dr. Ahmed Abdel-Aziz.


author: MAXWELL, J„

text:
    Thomas JONES a/k/a Thomas H. Jones a/k/a “Tommy”, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-02031-COA.
    Court of Appeals of Mississippi.
    July 15, 2014.
    Rehearing Denied Oct. 28, 2014.

      Matthew Reid Krell, Horn Lake, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J„

for the Court:

¶ 1. Thomas Jones seeks a new trial. He was tried and convicted of sexual battery of a thirteen-year-old girl. On appeal, he complains that his trial was a “farce” and the jury’s verdict runs contrary to the weight of the evidence.

¶2. We see no farce. While Jones claims the jury was “tainted” by the possibility that a juror was predisposed to find him guilty, the record shows the court, the State, and Jones’s counsel thoroughly vetted the prospective jurors to ensure each understood the presumption of innocence. Jones also insists a sleepy juror entitles him to a new trial. But the record shows Jones’s trial counsel — while voicing concerns that a juror may have been sleeping — never asked the judge to remove the juror. And Jones has not shown how the judge abused' his discretion by not replacing the juror sua sponte.

¶ 3. We also fail to see how the weight of the evidence undermines the jury’s verdict. Jones’s evidentiary challenge boils down to claiming the jury members were wrong in their credibility assessments and resolution of conflicting evidence. But witness-credibility decisions and what weight to give the evidence are questions within the “exclusive province of the jury.” This court only grants new trials in “exceptional cases,” “where the evidence [i]s so extremely doubtful that it [i]s repulsive to the reasoning of the ordinary mind.” And because the jury’s decision that Jones was guilty beyond a reasonable doubt was reasonable based on the evidence, and because allowing Jones’s conviction to stand would not “sanction an unconscionable injustice,” we affirm.

Background

¶ 4. Jones was tried by a jury alongside his wife, Elizabeth. Jones had been charged with sexual battery by engaging in penetration of a child under the age of fourteen. Elizabeth had been charged with contributing to the delinquency of the minor, by permitting a minor to consume alcohol to the point of intoxication, which led to the minor being sexually abused.

I. Day of Battery

¶ 5. In September 2010, Jones and his wife drove down from Connecticut to Tuni-ca County, Mississippi, to visit Elizabeth’s sister, Rachel. Rachel lived with her husband, Andrew; their two infant sons; and Andrew’s thirteen-year-old daughter from a previous relationship, Bethany. The four grown-ups and three children had all been staying in the same three-bedroom apartment for a week. And though Jones and Elizabeth had planned to stay several more days, when Bethany revealed she had been sexually abused, the couple immediately left for Connecticut.

¶ 6. The day of the attack, Jones, Elizabeth, and Bethany had gone to buy groceries and alcohol. Once back at the apartment, Elizabeth made homemade pizzas for supper, while her sister Rachel worked the night shift at a nearby hospital. When the adults began pouring drinks, Bethany asked her father if she could have one. Andrew consented, saying he would rather his daughter experiment at home than elsewhere. Andrew and Bethany testified that Elizabeth poured Bethany a tall glass of vodka and peach tea. But Elizabeth testified Bethany poured her own cocktail.

Andrew did not stay up to supervise his daughter’s drinking.

¶ 7. At some point that night, Bethany went outside to walk the dog. Bethany testified her step-aunt joined her. Shortly after, Elizabeth helped the increasingly inebriated Bethany back inside to the couch. But the young girl’s drinking did not stop. Jones told Elizabeth to fix Bethany another drink. And Bethany became so drunk that she vomited, and Elizabeth had to help Bethany to her bedroom.

¶ 8. Bethany testified “shortly after that, somebody came into the room, and I’m pretty sure it was Tommy [ (Jones) ]. And it felt like he was holding my wrists back, and I felt pain down there [ (between her legs) ].” When Bethany woke up the next morning, her genitals were “really sore,” and she noticed blood in her urine.

II. Aftermath

¶ 9. Andrew was at work when Bethany woke up. In fact, Jones had driven Andrew to work that morning, and the two men had made plans to grill out that night. But sometime mid-morning Bethany text-ed her father, telling him that she thought she had been raped and that “Uncle Tommy” was the one who did it.

¶ 10. After receiving the text, Andrew called his wife, who had already returned from work early that morning. Rachel asked Bethany to come into her parents room and tell her what happened. Rachel then told Bethany to keep herself locked inside their room until she returned. The plan was for Rachel to go get Andrew from work. But just as Rachel was about to leave, Jones told her that he and Elizabeth had received an emergency phone call. He said they had to return to Connecticut immediately. Rachel told them she had to go somewhere but would be right back and asked them to delay departing for their two-day trip until she returned. But instead of waiting, Jones and Elizabeth hurriedly packed their belongings and left.

¶ 11. By this point, Rachel and Andrew had called 911, and law enforcement began searching for Jones’s green Jeep Cherokee. The couple was located and pulled over before they could leave Tunica County. Inside their vehicle, sheriffs deputies found a duffle bag containing sex toys and condoms.

III. Investigation

¶ 12. Back at the apartment, deputies interviewed Andrew and Bethany. They then took Bethany to the hospital to take DNA samples. While none of Jones’s DNA was found on Bethany, her DNA was discovered on one of the sex toys.

¶ 13. Two months later, Bethany met with a forensic psychologist, who specialized in working with child sexual-abuse victims. The psychologist testified about her finding that Bethany’s interview was consistent with a child who had been sexually abused. The psychologist relayed what Bethany had shared in the interview — that Jones had come into her room and gotten on top of her, that she felt a sharp pain inside her, and that she thought it was Jones’s penis but was not certain.

IV. Defense

¶ 14. Both Elizabeth and Jones testified in their own defense. Both of their versions diverged from Bethany’s description of what happened at the point Elizabeth and Bethany returned inside from walking the dog that night. According to Elizabeth, she and Jones left the drunk Bethany on the couch, then went into Bethany’s room and had sex, during which they used a sex toy. They claimed they heard a thud out in the living room, so they stopped having intercourse to check on Bethany, who had fallen on the floor. This is supposedly when Bethany threw up. Elizabeth testified that Jones pulled Bethany up from the floor by her wrists and helped her to bed.

¶ 15. Once Bethany was in bed, Elizabeth decided to make more pizzas with the leftover ingredients. And while the pizzas were baking, she and Jones began having sex again-this time on the living room sofa. It was then, according to Elizabeth, that they realized they had left a sex toy in Bethany’s room. Elizabeth claimed she went back into the bedroom to retrieve the object, only to find it in a different spot than where it was left. While Elizabeth suggested Bethany had moved the object, on cross-examination she admitted that just thirty minutes earlier Bethany had passed out from drinking and was unconscious.

¶ 16. During Elizabeth’s testimony, the defense offered into evidence a letter Elizabeth had written to Rachel from jail. The defense also offered the sworn statement Elizabeth had given authorities four months after the sexual assault. In the letter, Elizabeth described vivid examples of Jones’s sexual deviance and abuse toward her. And in her statement, Elizabeth wrote that Jones had confessed to her, as they were being pulled over by police, that the reason they were being stopped was because he had sexually penetrated Bethany the night before.

¶ 17. On the stand, Elizabeth changed her story and said she had been lying when she wrote the letter and statement. She claimed she only wrote the letter so her sister would feel sorry for her and bail her out. And she said originally implicated Jones so charges against here would be dropped, which she hoped would help her regain visitation rights with her child in Connecticut.

¶ 18. Jones’s testimony about that night was very similar to Elizabeth’s.

V. Verdict

¶ 19. The jury found Elizabeth not guilty of contributing to the delinquency of a minor. But the jury found Jones guilty of sexual battery. He was sentenced to twenty-five years’ imprisonment.

¶ 20. Following the denial of his post-trial motion, Jones timely appealed. On appeal, he claims he is entitled to a new trial because the verdict was against the overwhelming weight of the evidence. He also suggests he was denied a fair trial because one potential juror thought he was guilty even before proven so and another empaneled juror had fallen asleep during trial.

Discussion

I. Weight of Evidence

¶ 21. Jones’s main argument is substantive — that the jury got it wrong based on the evidence.

A. Standard for Reversal

¶ 22. Because he claims the evidence also supported his theory of what happened, he urges this court as “thirteenth juror” should grant him a new trial if we tend to disagree with jury’s assessment of the evidence. Jones seizes on language from Bush v. State,. 895 So.2d 836, 844 (¶ 18) (Miss.2005), going so far as saying this court is “commanded” by the Mississippi Supreme Court to give no deference whatsoever to the jury’s guilty verdict or the trial court’s decision to deny a new trial. Nor should this court, according to Jones, even view the evidence in the light most favorable to the verdict.

¶ 28. After review, we are not swayed by his narrow interpretation of Bush, since it omits the bulk of what the supreme court said about the weight of the evidence in Bush and is contrary to our supreme court’s other more recent opinions.

¶ 24. In Bush, the supreme court made clear that the court’s role as the thirteenth juror was “limited.” Id. at (¶ 19). While the court does not have to accept all evidence in favor of guilt as true, id. at n. 3, we do have to view the evidence in the light most favorable to the verdict and may “only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. at (¶ 18). Moreover, motions for a new trial are “addressed to the discretion of the [trial] court,” which should invoke its power to grant a new trial “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. Very recently, in Renfro v. State, 118 So.3d 560, 564 (¶ 14) (Miss.2013), the supreme court explained that the verdicts that have been overturned on appeal on weight-of-the evidence grounds were “based on extremely weak or tenuous evidence” — evidence “so extremely doubtful that it was repulsive to the reasoning of the ordinary mind.” (Citations omitted).

¶ 25. In Renfro, the supreme court made equally clear that appellate courts must defer to the jury’s credibility and weight-of-the-evidence assessments. Id. To Renfro’s dictates, we could also add: Nelson v. State, 10 So.3d 898, 905(29) (Miss.2009) (“The jury determines the weight and credibility of witness testimony.”); Harris v. State, 970 So.2d 151, 156 (¶20) (Miss.2007) (“It is well established that the jury is the sole judge of the credibility of the witness.”); Townsend v. State, 939 So.2d 796, 802 (¶27) (Miss.2006) (“As this Court has repeatedly held, the jury is the final arbiter of a witness’s credibility.”); and the pre-Bush opinion King v. State, 798 So.2d 1258, 1262 (¶ 14) (Miss.2001) (“The jury has a much better vantage point to view and assess the tone, mannerisms, and disposition of witnesses.”).

¶ 26. The bottom line is that the job of “weighing the credibility of witnesses is the exclusive povvince of the jury[.]” Renfro, 118 So.3d at 564 (¶ 14) (emphasis added and citations omitted). And the jury has the prerogative to “choose to believe one witness over another” and “draw such reasonable inferences from the evidence as it deems justified!.]” Id. So contrary to Jones’s suggestion, this court cannot overturn a jury’s verdict simply because we disagree. Rather, to reverse Jones’s conviction, we would have to find the evidence supporting guilt extremely tenuous, the inferences the jury made beyond reason, and the verdict reached unconscionable. See id. at 563-64 (¶¶ 13-14). With this proper standard in mind, we review the evidence against Jones.

B. Evidence Supporting the Jury’s Guilty Verdict

¶ 27. To find Jones guilty of sexual battery, the jury had to find beyond a reasonable doubt that Jones sexually penetrated Bethany, when she was under the age of fourteen and he was more than twenty-four months older than she, by inserting his penis and/or an object into her vagina. See Miss.Code Ann. § 97-3-95(l)(d) (Rev. 2006).

¶ 28. The jury heard undisputed evidence that on the night she was battered Bethany was two weeks shy of turning fourteen, while Jones was in his forties. The jury also heard uncontradicted evidence that forensic testing detected Bethany’s DNA on one of the sex toys found in Jones’s car the next morning.

¶ 29. For the evidence that was disputed, the jury got to choose which witnesses to believe. See Renfro, 118 So.3d at 564 (55714). Thus, the jury “was entitled to believe” Bethany’s testimony that, although she was drunk, she was sure she had been held down and sexually penetrated by Jones. See id. at (¶ 17). This testimony was corroborated by the forensic interviewer, who testified that Bethany was sure Jones had penetrated her, despite being unsure whether he used his penis or some object. With forensic evidence placing Bethany’s DNA on the sex toy, the jury could have reasonably inferred that Jones had used the object to penetrate Bethany. Cf. id. (finding jury “was entitled to draw a reasonable inference” that the defendant had a motive to commit the crime and in fact did commit the crime). The forensic interviewer also testified that she found Bethany’s behavior to be consistent with a child sexual-abuse victim.

¶ 30. Bethany’s testimony was also corroborated by Andrew, Rachel, and the investigating officers, who all testified that Bethany had told them the following morning she thought Jones had raped her. And Rachel testified about Bethany’s demeanor that morning — that Bethany appeared very “tearful” and “shocked,” as if something really wrong had happened. Additionally, Andrew and Rachel both testified that, before the rape, Jones and Elizabeth had planned to stay in Mississippi for a few more days — with Jones even discussing cooking on the grill that night. But as soon as Bethany told Andrew and Rachel what happened, Jones and Elizabeth suddenly bolted, refusing to delay their two-day drive for even the few minutes it would have taken Rachel to pick Andrew up from work. So the jury could have reasonably inferred the reason Jones and Elizabeth left so abruptly was to flee Mississippi and evade arrest.

¶ 31. Elizabeth too corroborated Bethany’s testimony through the sworn statement introduced by the defense without limitation. In this statement, Elizabeth said Jones had confessed to her that he had sex with Bethany the night before their arrests.

¶ 32. While Elizabeth and Jones both later contradicted Bethany, the jury was free to resolve the competing evidence as they saw fit. Cf. id. Assigning little weight to Elizabeth’s testimony was not unreasonable, given that she asked the jury to disregard her letter and sworn statement, both of which she claimed contained made-up stories to manipulate her sister and the police into helping her.

¶ 33. Viewing this evidence in the light most favorable to the verdict, as we must, there is plenty of evidence supporting Jones’s guilt. Simply put, the evidence of Jones’s guilt is not outweighed by evidence supporting acquittal, the inferences the jury made were not unreasonable, and the verdict is not unconscionable. Thus, the trial judge properly denied Jones’s motion for a new trial.

II. Presumption of Innocence

¶ 34. Jones remaining two arguments are procedural — that two things happened at trial that interfered with his right to a fair trial.

¶ 35. According to Jones’s appellate counsel, something “most troubling” transpired during voir dire. He asserts a veni-re member with a predisposition to find Jones guilty may have made it onto the panel.

¶ 36. In seeking reversal on this point, Jones asks this court to solely focus on something that is not in the record — the identity of a prospective juror who answered “guilty” during voir dire. We, however, have read what is in the record. And the voir dire transcript shows Jones’s trial counsel, the State, and the court were thorough in their efforts to ensure all potential jurors understood Jones was “not guilty” until proven otherwise.

A. The Venire Understood the Presumption of Innocence

¶ 37. During voir dire, the assistant district attorney discussed with the venire the presumption of innocence. He rhetorically asked, “If y’all had to go back there and vote right now, how would you vote now?” A prospective juror replied, “Guilty.” Jones claims that because this juror was not identified on the record, there is no way to know who he or she was or if he or she was empaneled on the jury. And because there is a possibility that a member of the jury disagreed with the presumption of innocence, Jones says he must be retried.

¶ 38. But just because the identity of the person saying “guilty” is unknown to appellate counsel does not necessarily mean this person’s identity was not known by Jones’s trial counsel. Further, the record shows Jones’s trial lawyer had retained additional local counsel to help with voir dire. So Jones had two pairs of eyes and ears observing the venire during the State’s questions about the presumption of innocence. The record also shows Jones’s trial attorney scrutinized the venire, pushed for as many strikes for cause as possible, and used all of her peremptory strikes to get a fair jury. And the trial judge also was careful to err on the side of releasing any prospective juror that seemed like he or she was not up to the task. So the record shows vigilance, not carelessness, on the court’s and Jones’s counsel’s part to prevent any taint.

¶ 39. Also, when the unidentified prospective juror answered “guilty,” the assistant district attorney quickly intervened. The prosecutor explained that the correct answer to the hypothetical was that no juror could find Jones guilty — but instead all were bound to find Jones not guilty— because no evidence had yet been presented. After giving an analogy of what it would look like for the State to overcome the presumption of innocence, the assistant district attorney asked the venire, “Do we understand each other now?” And the whole room of jurors answered “yes.” The prosecutor then followed up, “Will /all hear this case and base your decision solely on the evidence that you hear in this jury box?” And again, the entire pool said they would. So any potential misunderstanding about the presumption of innocence was immediately corrected.

¶ 40. What is more, when it was Jones’s counsel’s turn to poll the venire, she essentially asked the same question as the State — did anyone think Jones was guilty simply because he was here for trial? When no one responded, she asked again, telling them, “If you do, that’s okay. I just need to know.” But again no one responded, so she moved on to other questions.

¶ 41. Then, at the end of trial, the judge expressly instructed the empaneled jury on the presumption of innocence before it began deliberating. And “it is presumed that jurors follow the instructions of the court.” Pitchford v. State, 45 So.3d 216, 240 (¶ 96) (Miss.2010) (quoting Chase v. State, 645 So.2d 829, 853 (Miss.1994)). Thus, we find no presumption-of-innocence problem with Jones’s trial.

B. Jones and His Counsel Were Present During Empaneling

¶ 42. Jones cites Strickland v. State, 477 So.2d 1347, 1348-50 (Miss.1985), as “instructive” on why he should get a new trial based on voir dire. But the lesson from Strickland is based on inapposite circumstances. In Strickland, when the trial judge learned prospective jurors had been contacted by a relative of the defendant, the judge questioned the jurors in chambers, outside the presence of the defendant and his counsel. The supreme court deemed the judge’s questions as “tantamount to determining whether they were qualified to be empaneled.” Id. at 1349. And because the defendant had “an absolute right to be present during the empaneling of a jury,” excluding the defendant from the interrogation of jurors was reversible error. Id. (citations omitted). But the record here differs. It shows the potential jurors were questioned not only in Jones’s presence but also with his two attorneys — including one attorney who had been hired just to observe and advise about the venire. So the “injustice” that occurred in Strickland did not happen here.

¶ 43. Because the record, when considered fully, shows no violation of Jones’s right to a fair trial, Jones is not entitled to a new trial based on his claim the jury was potentially tainted.

Ill, Alleged Sleeping Juror

¶ 44. Jones also claims he is entitled to a new trial because the record shows one of the jurors was suspected of sleeping. According to Jones, the judge reversibly erred by failing to address this issue. But the record shows the judge did address the issue — and he did so to Jones’s apparent satisfaction.

¶ 45. At the end of the first day of trial, Jones’s counsel told the court that Juror 1 had been sleeping and “may need to [be] replace[d].” The judge, who had also observed Juror 1 earlier when he called for a coffee break, said he could address the matter then or in the morning. The State asked that they take up the issue in the morning, and Jones’s lawyer agreed. But the next morning, Jones’s counsel opted not to follow up and made no mention of Juror 1. Instead, it was the judge who brought up the issue that jurors “perhaps were sleeping.” The State asked the judge to wait until the end of trial before deciding whether to remove Juror 1. The judge agreed but told the bailiff to watch for inattentive jurors and vowed to keep the jury awake for the rest of trial.

¶ 46. That afternoon, the second day of trial, Jones’s counsel alerted the court that Jurors 1 and 7 looked like they were sleeping. The judge immediately granted her request to take a break and instructed Jurors 1 and 7 to get some coffee. On the third day of trial, there was a bench conference about two other jurors — Jurors 4 and 12 — who had scheduling conflicts that day. Because these jurors had not told the court of their conflicts during jury selection and because the alternates may have been needed to replace sleepy jurors, the court refused to release Jurors 4 and 12.

¶ 47. That was the last discussion about the jury. When both sides rested, the court asked if either, side had any matters that needed to be addressed. Jones’s counsel did not move the court to replace Juror 1, even though two alternates were still available. So the two alternates were released — without objection by Jones’s attorney — and Jurors 1-12 were sent to deliberate.

¶ 48. After the jury returned a “guilty” verdict, Jones moved for a new trial. But he did not see fit to base his post-trial motion on a claim that jury members had been asleep. Instead, for the first time on appeal, Jones suggests that Juror 1 should have been replaced with an alternate. As he now sees it, the trial judge’s failure to do so sua sponte entitles him to a new trial. As support, Jones cites Church v. Massey, 697 So.2d 407, 414 (Miss.1997), in which our supreme court expressed “great concern” over a sleeping juror. But Jones “goes too far in arguing his case is analogous to Church v. Massey, where a juror slept through ‘most of the proceedings.’ ” Birkhead v. State, 57 So.3d 1223, 1237 (¶47) (Miss.2011) (quoting Church, 697 So.2d at 413). Here, unlike Church, the record does not show Juror 1 slept through most of the trial. Rather, once the court was alerted that Juror 1 “perhaps” fell asleep during the first afternoon of trial, the court watched her and the rest of the panel closely for the rest of the trial to ensure no one dozed off. See id. at 1236-37 (¶¶ 46-47) (noting that, after the court was alerted a juror may have fallen asleep, the record indicated no further problems with that juror).

¶ 49. Church also has another key difference. In Church, plaintiffs counsel, after alerting the court during trial that a certain juror had been sleeping, made a motion at the end of trial to excuse the juror, which the judge denied. Church, 697 So.2d at 414. So on appeal the issue was teed up for the supreme court to decide whether the trial court abused its discretion by denying the plaintiffs motion — not whether the trial court had a sua sponte duty to remove. Id.

¶ 50. Instead of being like Church, we find Jones’s case is analogous to Norris v. State, 490 So.2d 839, 845 (Miss.1986). There, the court raised its own concerns during trial that a juror may be sleeping. But it was only after the jury found the defendant guilty that defense counsel moved for a new trial based on the sleeping juror. The judge refused to grant the defendant’s post-trial motion because, as soon as the court had been alerted that a juror may have fallen asleep, the court had roused the jury and made them stand up and stretch. From that point, the court “constantly observed the jury,” so “if this juror was, in fact, asleep,” the court found “he could have only been asleep for a few brief moments” and, thus, could not have “missed very much of the testimony.” Id.

¶ 51. On appeal, not only did the supreme court find no abuse of discretion in the trial court’s decision, the court also found “there [had been] no timely complaint by counsel to the juror continuing to serve.” Id. at 846. The supreme court applied Gerlach v. State, 466 So.2d 75, 79 (Miss.1985), another case in which defense counsel did not complain about a member of the jury “until several days later, after the jury’s guilty verdict.” Norris, 490 So.2d at 846 (citing Gerlach, 466 So.2d at 79). In Gerlach, the supreme court found that, had defense counsel requested that the juror who had been tampered with be removed, “then [the juror] should have been taken off the jury and an alternate juror seated.” Gerlach, 466 So.2d at 79. But “[b]ecause the record fails to reflect a timely and adequate objection on the part of defense counsel,” the supreme court “den[ied] the assignment of error.” Id.

¶ 52. Like Norris and Gerlach, Jones did not move to have Juror 1 removed at the end of trial. Nor did he raise the issue in his motion for a new trial. Instead he waited until his appeal — which the supreme court has held is too late. See Birkhead, 57 So.3d at 1237(48) (defendant’s failure to raise the issue of a sleeping juror at trial or in a motion for new trial bars consideration on appeal).

¶ 53. Jones tries to get around Birk-head,’s procedural bar by arguing that, by merely voicing concerns the first day of trial that Juror 1 had been sleeping, his trial counsel had sufficiently “raised” the issue. But suggesting a juror “may” need to be removed does not equate with moving the court to actually remove the juror.

¶ 54. A motion would have resulted in the judge making an on-the-record decision. With a properly raised motion, the judge would have had to make a factual finding whether Juror 1 had been sleeping and, if so, for how long. The judge would have then had to exercise his discretion by either removing Juror 1 or justifying his keeping her on the jury. Cf. Norris, 490 So.2d at 845 (addressing trial court’s on-the-record findings regarding sleeping juror, made during motion for new trial). But because Jones made no motion, there are no on-the-record findings. Nor do we have the benefit of the court’s reasoning for keeping Juror 1 on the panel. All we have is the judge’s statement that Juror 1 “perhaps” had been sleeping on the first afternoon of trial, which is why he immediately roused her and told her to get coffee.

¶ 55. The decision to excuse jurors is within the trial judge’s discretion. Church, 697 So.2d at 414. And this court does not “lightly interfere” with such decisions. Reversal is proper only when we are “satisfied that the trial court has erred in holding a juror competent!.]” Id. Because Jones did not ask the judge to remove Juror 1, we have no decision to review for an abuse of discretion — let alone a basis in the record to interfere with that decision. We thus find Jones is not entitled to a new trial on this ground.

¶ 56. THE JUDGMENT OF THE TU-NICA COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TO BE SERVED CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED, AND TO REGISTER AS A SEX OFFENDER WITH THE MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P JJ., ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Renfro v. State, 118 So.3d 560, 564 (¶ 14) (Miss.2013) (citation omitted).

      . Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (citation omitted).

        .Renfro, 118 So.3d at 564 (¶ 14) (quoting Dilworth v. State, 909 So.2d 731, 738 (¶ 33) (Miss.2005)).

      . Bush, 895 So.2d at 844 (¶ 18).

      . Bethany is a fictitious name, used to protect the identity of the sexual-assault victim, who was a minor at the time of the crime.

      . Jones was represented by different counsel at trial.

      . In Church, by the time the supreme court addressed the sleeping-juror issue, the court had already decided to reverse on other grounds. So while "concemfed]," the supreme court did not ultimately address the question whether the trial court had abused its discretion when it denied the plaintiffs motion to remove the juror. See Church, 697 So.2d at 414.