author: LEE, C.J.,

text:
    ROBERT C. LEHMAN, A Professional Law Corporation, Appellant/Cross-Appellee v. MISSISSIPPI TRANSPORTATION COMMISSION, Normand Children Diversified Class Trust, United Truck Group, LLC, and Truck Capital, LLC, Appellees/Cross-Appellants.
    No. 2011-SA-01059-COA.
    Court of Appeals of Mississippi.
    June 18, 2013.
    Rehearing Denied Sept. 17, 2013.
    Certiorari Denied Dec. 12, 2013.

      Hiawatha Northington II, Ridgeland, attorney for appellant.
    Karl Crawford Hightower, Michael B. Holleman, Gulfport, attorneys for appel-lees.
    Before LEE, C.J., FAIR and JAMES, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On December 16, 2009, the Mississippi Transportation Commission (MTC) filed three complaints to condemn in the Special Court of Eminent Domain of Harrison County. The subject of these complaints were three parcels of land, termed Z, Zl, and Z2. The Normand Children Diversified Class Trust (Normand) owns an undivided-whole fee-simple interest in Zl and Z2 and an undivided 9/10 (90%) fee simple interest in Z. Robert C. Lehman PLC (Lehman) owns a 1/10 (10%) fee-simple interest in Z. These three complaints were ultimately consolidated in the trial court.

¶ 2. During litigation of the condemnation suit, Normand, United Truck Group, and Truck Capital (collectively referred to as “Normand” unless otherwise noted) sued Lehman for slander of title. Lehman had filed lis pendens notices, claiming that the property was the subject of a Louisiana suit that sought “to enforce a lien upon, right to, or interest” in the property.

¶ 3. Lehman filed a motion to dismiss the complaint to condemn, asserting that the trial court lacked jurisdiction. On June 29, 2010, the trial court entered a judgment denying Lehman’s motion to dismiss. The judgment also memorialized the trial court’s findings “[tjhat contrary to allegations made in [Lehman’s] [l]is [p]en-dens [n]otices, the Louisiana action does not seek ‘to enforce a lien upon, right to, or interest’ in the subject property ... [and] does not involve the subject property, nor does it make any claim against [Normand], the record owner.” The trial court found that Lehman had intentionally, falsely, and maliciously filed the lis pen-dens notices and slandered the title of Normand. The trial court awarded damages for loss of use of the purchase funds for the three parcels, and granted eight percent interest as “adequate compensation for the delay in these proceedings.” And on July 14, 2010, Lehman moved for reconsideration or, in the alternative, a new trial and for additional time to respond to the cross-plaintiffs’ motion for attorney’s fees.

¶ 4. On August 12, 2010, the trial court entered an agreed judgment. According to the judgment, all parties agreed: Lehman had withdrawn the lis pendens notices and relinquished any interest and any right to compensation as a result of the lis pendens notices; MTC was to pay Lehman $224,358.27 for its ten percent ownership of Z; MTC was to pay Normand $2,019,224.45 for Z, $833,882.36 for Zl, and $754,991.08 for Z2.

¶ 5. On July 7, 2011, the trial court entered its final judgment, incorporating the June 29, 2010 judgment, and denied Normand’s request for reconsideration of damages, denied Lehman’s motion for reconsideration, and awarded sanctions in the form of attorney’s fees of $32,837.06 to Normand. This appeal and cross-appeal followed.

DISCUSSION

¶ 6. Lehman appeals, arguing the trial court erred: (1) in denying the motion to dismiss the complaint to condemn, (2) in denying the motion to reconsider, and (8) in granting the motion for attorney’s fees. Normand cross-appeals, arguing that the trial court erred in denying its request for reconsideration of damages. Since the first two issues are related, we will address them together.

I. MOTION TO DISMISS COMPLAINT TO CONDEMN AND MOTION TO RECONSIDER

¶ 7. Lehman filed a motion to dismiss, which the trial court denied. Lehman then moved for reconsideration on July 14, 2010. On August 12, 2010, all parties entered into an agreed order that addressed the issues regarding the condemnation action. This Court has held that “[a]greed judgments are ‘in the nature of a contract and are binding and conclusive in the absence of fraud, mutual mistake, or collusion.’ ” Julvanna, LLC v. Economy Inns, Inc., 24 So.3d 391, 393 (¶ 8) (Miss.Ct.App.2009) (quoting Ruff v. Estate of Ruff, 989 So.2d 366, 372 (¶ 23) (Miss.2008)).

¶ 8. Lehman does not assert fraud, mutual mistake, or collusion. Therefore, Lehman is procedurally barred from appealing these issues, as it entered into an agreed judgment on the matter. This issue is without merit.

II. ATTORNEYS FEES

¶ 9. This Court reviews a trial court’s award of attorney’s fees for abuse of discretion. Herbrandson v. Thompson, 808 So.2d 975, 977 (¶ 3) (Miss.Ct.App.2001) (citing Bank of Miss. v. S. Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)).

¶ 10. Lehman contends that attorney’s fees were improper as sanctions because the lis pendens notices were filed in good faith, with no evidence showing Lehman acted with malice. However, the trial court stated:

The Louisiana lawsuit had no interest in this proceeding and the actions of Lehman, in my opinion. This shows a reckless disregard for the truth[,] and Lehman, through [its] own mouth, acknowledges the falsity of the [l]is [p]en-dens [n]otices_The actions of Lehman had no justification, much less substantial justification, and were interposed for delay and harassment.
[A]n award of $32,837.06 attorney[’s] fees is justified. Although Lehman is in default, and the [c]ourt accepts the attorney's] fees submitted by Normand as credible and reasonable, the [c]ourt denies attorneyf’s] fees submitted post-[m]otion advancing Normand’s motion for attorneyf’s] fees.

¶ 11. The Mississippi Supreme Court has stated that filing “an instrument which is known to be inoperative, and which disparages the title to land, is a false and malicious statement for which damages may be recovered.” Phelps v. Clinkscales, 247 So.2d 819, 821 (Miss.1971) (citation omitted). Attorney’s fees and costs are an element of damages for slander of title. Welford v. Dickerson, 524 So.2d 331, 332 (Miss.1988). Mississippi Code Annotated section 11-55-5 (Rev. 2012), which is also known as the Litigation Accountability Act, allows attorney’s fees to be awarded as a sanction if the court “finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment[.]”

¶ 12. Lehman filed the lis pendens notices claiming that the land was of interest in the Louisiana action, when in fact the land had nothing to do with the Louisiana action nor were the same parties involved. Lehman, which is a law firm, claims it did not have notice of the filing; however, nothing in the record supports that self-serving statement.

¶ 13. Normand provided documents supporting its request for $37,758.06 in attorney’s fees and costs, and Lehman stipulated that the $200 per hour rate was reasonable. The trial court awarded $32,837.06. The trial court did not abuse its discretion in awarding the attorney’s fees as sanction, and the amount of the fees was supported by credible evidence. This issue is without merit.

III. CROSS-APPEAL: RECONSIDERATION OF DAMAGES

¶ 14. Normand cross-appeals, arguing that the trial court failed to properly calculate and assess damages for slander of title. In its June 4, 2010 ruling, the trial court found that “subject to [Mississippi Code Annotated sections] 11-27-19 [ (Rev. 2004) ] and 11-27-87 [ (Rev.2004) ] as well as Mississippi [State ] Highway Commission v. Owen [], [310 So.2d 920 (Miss. 1975) ], the defendants are authorized to receive [eight] percent interest from December 16, 2009. The [c]ourt feels that this is adequate compensation for the delay in these proceedings.” Normand asserts that the eight percent interest per annum should include the period from September 4, 2009, to August 12, 2010.

¶ 15. The supreme court in Owen found, “Under the provisions of the Act [now codified as Mississippi Code Annotated section 11-27-19 and 11-27-87], the landowner is entitled to interest on the excess of the amount paid into court at the rate of eight percent per annum from the date the petition was filed until the judgment is finally paid.” Owen, 310 So.2d at 922. The complaint to condemn was filed on December 16, 2009. However, Normand asserts that the interest should have begun to accrue on September 4, 2009, when Lehman filed the lis pendens notices. Under Owen and section 11-27-19, the interest is calculated from the date the petition was filed, which was December 16, 2009. Therefore, the trial court did not err in its calculation of damages.

¶ 16. THE JUDGMENT OF THE SPECIAL COURT OF EMINENT DOMAIN OF HARRISON COUNTY IS AFFIRMED ON DIRECT APPEAL AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE CROSS-APPELLANTS AND ONE-HALF TO THE CROSS-AP-PELLEE.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . MTC did not join in the cross-appeal.


source: Caselaw Access Project

author: CARLTON, J., ISHEE, J., dissenting:

license: Public Domain

text:
    BRYAN FOODS, INC., Appellant/Cross-Appellee v. Tommy L. EWING, Appellee/Cross-Appellant.
    No. 2011-WC-01194-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.
    Rehearing Denied Oct. 1, 2013.
    Certiorari Denied Dec. 12, 2013.

      James C. Helveston, West Point, attorney for appellant.
    Lawrence J. Hakim, Batesville, attorney for appellee.
   CARLTON, J.,

for the Court:

¶ 1. Tommie L. Ewing worked for Bryan Foods Inc. for approximately twenty years. Following an injury to his back and leg, Ewing left his position in 2000. After filing an initial petition to controvert in 2000 and a second petition to controvert in 2001, the administrative judge (AJ) dismissed Ewing’s claims for failure to prove by a preponderance of the evidence that his injuries were work-related. The AJ’s order was later overturned by the Workers’ Compensation Commission (Commission), which ruled in favor of Ewing and required Bryan Foods to pay compensation benefits. Aggrieved, Bryan Foods appeals. Ewing cross-appeals. Finding no error, we affirm the order of the Commission.

FACTS

¶2. Ewing began working for Bryan Foods in West Point, Mississippi, in 1979 after withdrawing from high school in his eleventh-grade year. Over the course of his employment with Bryan Foods, Ewing held various positions until his permanent failure to report to work in 2000.

¶ 3. In 1984, Ewing began working as an “edible-products handler,” which required him to wear specialized clothing, including lace-free, slip-on rubber boots with steel toes. His job was to operate a piece of equipment called a “work saver.” The work saver was a battery-powered forklift that Ewing rode through the warehouse and used to move heavy items up to 2,000 pounds. Ewing occasionally had to manually move boxes weighing approximately sixty pounds from a conveyor line to a pallet. Ewing maintained his employment as an edible-products handler until the incidents at issue.

¶ 4. In a demand letter to Bryan Foods dated June 22, 1999, Ewing sought workers’ compensation benefits due to back and leg injuries allegedly sustained from lifting heavy objects at work. However, in his first petition to controvert filed in 2000, Ewing claimed to have tripped on his shoelaces at work on May 12,1998, and to have only injured his back. In his second petition to controvert filed in 2001, Ewing claimed to have sustained an injury to his left-lower knee in the fall, as well. Prior medical records also indicate Ewing told a treating physician that he had injured his back when his forklift ran into a drain hole at work.

¶ 5. We note that whether or not Ewing reported the incident to his supervisors, as required by Bryan Foods’ policy, remains in dispute. Bryan Foods claims to have had no formal reports of any injury to Ewing prior to the receipt of Ewing’s demand letter in 1999. However, while not within the formal purview of injury reports, the records of Bryan Foods’ emergency medical technician (EMT), Letitia Owens, show that Ewing saw Owens on May 12, 1998, claiming to have back pain after tripping on his shoelaces at work.

¶ 6. On October 6, 1997, approximately seven months before the date of the May 1998 injury, Ewing saw Dr. Robert T. Lott, his regular family doctor, complaining of lower-back pain from an injury at work. Although Dr. Lott’s records note that Ewing attributed the pain to an injury at work, no details were provided as to how the injury occurred. On June 23, 1998, Ewing returned to Dr. Lott with similar complaints. Dr. Lott then referred Ewing to Dr. Walter Eckman in Tupelo, Mississippi, for neurosurgical evaluation and treatment.

¶ 7. Dr. Eckman first saw Ewing on October 1, 1998. Ewing complained of lower-back pain but did not mention any injury to his left knee. According to Dr. Eckman’s records, Ewing claimed he had injured his back when his forklift ran into a drain hole, and he failed to mention the alleged fall at work in 1998. After an evaluation, Dr. Eckman diagnosed Ewing with having a Grade I spondylolisthesis at L5-S1 and performed a fusion on March 16,1999.

¶ 8. On May 3, 1999, Dr. Eckman released Ewing to light-duty work. On May 22, 2000, Dr. Eckman released Ewing to full and unrestricted duty. Shortly before his release to full duty, in March and April 2000, Ewing was involved in two motor-vehicle accidents. He admits to sustaining an injury to his back in the March 2000 accident.

¶ 9. Upon his return to work in May 2000, Bryan Foods placed Ewing on the “tumbler job,” which required him to press buttons on a control box to operate a mechanical meat tenderizer. However, Ewing advised his supervisor that he lacked the ability to complete the job because it required him to stand for too long. Bryan Foods then attempted to train Ewing on the “JBA System” of electronic inventorying. A short time into his training, Ewing advised his supervisor that he was going to a medical facility, and he did not return to work until approximately one month later. His supervisor again attempted to train him on the JBA System, but Ewing failed to return from lunch on the first day of his training, and has not returned to work since that time.

¶ 10. After the filing of Ewing’s second petition to controvert in 2001, the case was set for trial. The trial court granted nine continuances between March 14, 2001, and February 28, 2005. On December 13, 2005, the day before the trial, Ewing produced a 2001 Social Security Administration order awarding him Social Security disability benefits. Bryan Foods objected to the introduction of the order on the basis that it had requested this information early in the discovery process, but had never been provided the information. Bryan Foods claimed the order contains references to examining physicians not identified by Ewing during the course of discovery. The order also references mental disabilities not previously claimed by Ewing. Bryan Foods also noted that the order was dated 2001 — four years prior to the date it was produced to Bryan Foods. Bryan Foods now also asserts that the order and the medical opinions therein are inadmissible as untimely, hearsay, and because they were not in medical-affidavit form as required by the Workers’ Compensation Rules of the Commission.

¶ 11. The AJ assigned to the case ruled in favor of Bryan Foods on April 28, 2006, in finding that Ewing failed to establish by a preponderance of the evidence that his injuries were related to his employment. She also ruled that even if Ewing’s left-knee injury was work-related, any claim based on that injury was barred by the statute of limitations. As such, she found that Bryan Foods was not liable to pay workers’ compensation benefits to Ewing.

¶ 12. The Commission later reversed and remanded the AJ’s findings on February 28, 2007, and found that Ewing had met his burden of proving the injuries were work-related. The Commission determined that Ewing’s inconsistencies regarding the cause of his back and knee injuries were due to his “limited intellectual capacity” and “borderline mental retardation].” The Commission relied, in part, on the 2001 order that Bryan Foods contests. On remand, the AJ found that Ewing reached maximum medical improvement (MMI) on May 22, 2000, but had failed to meet his burden of proving a disability under the Workers’ Compensation Act. She also denied Ewing’s request for another back surgery, and again found his claim for benefits for a left-knee injury to be barred by the statute of limitations.

¶ 13. On September 28, 2010, the Commission affirmed the AJ’s finding that Ewing reached MMI on May 22, 2000. Likewise, the Commission upheld the denial of a repeat back surgery. However, the Commission found Ewing’s left-knee-injury claim was not barred by the statute of limitations. The Commission further found that Ewing had sustained a five percent loss of industrial use of the left leg for wage-earning purposes, but had reached MMI, and that he had incurred a fifty percent loss of wage-earning capacity as a result of his lower-back injury.

¶ 14. Ewing then filed a motion for reconsideration asking the Commission to award him penalties and interest and order future medical treatments. In July 2011, the Commission amended its September 28, 2010 order to include a requirement for Bryan Foods to pay a ten percent penalty and interest on any due and unpaid compensation to Ewing, and to pay for Ewing’s reasonable and necessary medical treatment. Bryan Foods appealed the 2010 order, which the Commission denied.

¶ 15. Bryan Foods now appeals, claiming numerous reversible errors. For the purposes of clarity, we have categorized Bryan Foods’ claims of error as the following arguments: (1) Ewing failed to establish by a preponderance of the evidence that he sustained compensable injuries, and the Commission erred in determining that Ewing met his burden of proof; and (2) the Commission erred in its findings that Ewing’s left-knee-injury claim is not barred by the two-year statute of limitations.

¶ 16. Ewing cross-appeals, claiming the Commission erred in its determination that he had reached MMI. Alternatively, Ewing asserts that even if the Commission properly held that he has reached MMI, the Commission erred in failing to find that he has sustained permanent and total disability and loss of wage-earning capacity.

STANDARD OF REVIEW

¶ 17. “The ... Commission sits as the ‘ultimate finder of facts’ in deciding compensation cases, and therefore, ‘its findings are subject to normal, deferential standards upon review.’ ” Pilate v. Int'l Plastics Corp., 727 So.2d 771, 774 (¶12) (Miss.Ct.App.1999) (quoting Natchez Equip. Co. v. Gibbs, 628 So.2d 270, 278 (Miss.1993)). This Court will only reverse the findings of the Commission if the findings are “clearly erroneous.” J.R. Logging v. Halford, 765 So.2d 580, 583 (¶ 13) (Miss.Ct.App.2000) (citing Evans v. Cont’l Grain Co., 372 So.2d 265, 269 (Miss. 1979)). A finding is clearly erroneous if, “although there is some slight evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the [Workers’ Compensation] Act.” Id. However, “this Court reviews matters of law de novo, while according the interpretation of the Commission great weight and deference.” Natchez Equip. Co., 623 So.2d at 273 (citation omitted).

¶ 18. In order to prevail on a claim for workers’ compensation benefits, the claimant must prove by a preponderance of the evidence that he suffered “an accidental injury arising out of and in the course of his employment^] and a causal connection between the injury and the claimed disability.” S. Miss. Elec. Power Ass’n v. Graham, 587 So.2d 291, 294 (Miss. 1991) (quoting Narkeeta, Inc. v. McCoy, 247 Miss. 65, 70,153 So.2d 798, 800 (1963)). Furthermore, the claimant must “establish every essential element of the claim[,] and it is not sufficient to leave the matter to surmise, conjecture[,] or speculation.” Id.

DISCUSSION

¶ 19. On appeal, Bryan Foods asserts that Ewing failed to establish by a preponderance of the evidence that he sustained compensable injuries, and the Commission erred in determining that Ewing met his burden of proof. Bryan Foods also submits that the Commission erred in its findings that Ewing’s left-knee-injury claim is not barred by the two-year statute of limitations.

¶ 20. In his cross-appeal, Ewing asserts that he has suffered back and knee disabilities due to injuries he sustained during his employment with Bryan Foods. He also claims that the Commission should have found that he was totally disabled as a result of his work-related back and leg injuries. Ewing also cites as error the Commission’s finding that he has reached MMI with respect to his leg and back injuries. Ewing states that the Commission’s September 2010 finding that he had reached MMI was based on the same evidence presented in February 2007 when it found that Ewing had not yet reached MMI. As stated, in order to prevail on his claim for workers’ compensation benefits, Ewing must prove by a preponderance of the evidence that he suffered “an accidental injury arising out of and in the course of his employment^] and a causal connection between the injury and the claimed disability.” Id.

¶ 21. We first turn to examine Bryan Foods’ claim that Ewing failed to meet his burden of proving that he suffered an injury arising out of and in the course of his employment and showing a causal connection between the injury and the claimed disability. The record reflects that the AJ initially assigned to the matter found that Ewing failed to establish by the preponderance of the evidence that he had suffered compensable injuries related to his employment. The AJ’s April 28, 2006 ruling was based, in large part, on her finding that Ewing failed to connect his injuries to specific incidents at the workplace. On appeal, the Commission overturned the AJ’s decision in its February 28, 2007 order after finding that Ewing in fact sustained compensable injuries to his knee and back as a result of a work-related injury, specifically when he tripped and fell on May 16,1998.

1122. In its February 2007 order, the Commission provided the following in support of its finding that Ewing had suffered work-related injuries to his back and knee:

[T]he testimony of [Ewing] as to the occurrence of his injury and the resulting disability ... [is] generally credible. His description of the accident itself, along with the immediate pain and discomfort he felt following this accident, is not seriously contradicted in our view. We do not believe there is really any question that, on or about May 16, 1998, [Ewing] fell and injured himself. He tripped while descending a flight of stairs.
Dr. Eckman’s ... testimony generally supports [Ewing’s] contention that his current disability is related to his injury at work.
Ewing also testified credibly that he injured his knee in the fall, and Dr. Russell Linton eventually diagnosed a left meniscus tear. This was treated surgically by Dr. Linton, and his testimony also supports Ewing’s claim that his knee injury and resulting impairment is related to his fall at work.

¶ 23. In Moore v. Independent Life & Accident Ins. Co., 788 So.2d 106, 112 (¶ 22) (Miss.Ct.App.2001), this Court stated that “[e]ven though the testimony may be somewhat ambiguous as to causal connection, all that is necessary is that the medical findings support a causal connection.” The Commission also stated that it based its decision to overturn the AJ’s order in part on the Social Security Administration order indicating Ewing was mentally disabled. The Commission determined that this particular order, describing Ewing as borderline mentally disabled and being of limited intellectual capacity, explained and resolved Ewing’s inconsistencies regarding where and how his injury occurred.

¶ 24. With respect to Ewing’s assignments of error regarding his disability benefits, the Commission’s September 2010 order states that Ewing sustained a five percent industrial loss of use of his left leg for wage-earning purposes, and a fifty percent loss of wage-earning capacity as a result of the injury to his lower back. See Spencer v. Tyson Foods, Inc., 869 So.2d 1069, 1073 (¶¶ 15-16) (Miss.Ct.App.2004) (citations omitted). The Commission ordered these awards to be paid by Bryan Foods consecutively, beginning July 4, 2002.

¶ 25. In reaching its determination to award partial, rather than permanent, disability benefits, the Commission acknowledged the following facts: Ewing never graduated high school; he was placed in special-education classes in elementary school; he was functionally illiterate; and according to an order of the Social Security Administration, he was also deemed mentally retarded. The Commission acknowledged Ewing worked for Bryan Foods for approximately twenty years and had never worked anywhere else or received any training for specialized skills. The order of the Commission reflects that it acknowledged Ewing’s “questionable efforts” to seek other employment. The Commission further stated that although Dr. Eckman released Ewing to work without any restrictions, Ewing attempted to return to work in different positions, but without success. The Commission noted that the jobs available to Ewing at Bryan Foods consisted of repetitive manual labor, requiring lifting, pushing, and pulling items weighing sixty pounds or more. The Commission also found that Ewing continued to have pain and physical limitations as a result of his back and leg injuries. The Commission also stated that “it is probative, but by no means binding,” that Ewing has been declared permanently and totally disabled for Social Security purposes. Contrary to the assertions of Bryan Foods, the order of the Commission reflects that it did not base its decision solely on the contested order of the Social Security Administration.

¶ 26. Regarding MMI, the Commission cited the testimony of Dr. Ashraf Ragab, who evaluated Ewing and opined that Ewing needed surgery to relieve his back pain. The Commission found that Dr. Ra-gab’s ultimate recommendation for more surgery was “completely at odds” with the majority of his testimony. As a result, the Commission held that Dr. Ragab’s testimony was not credible. The Commission based its finding that Ewing reached MMI as to his back injury on the opinions of Dr. Eckman and Dr. Rodney Olinger, who both opined that Ewing’s fusion surgery in his lower back was successful. The Commission also considered other medical evidence in the record in making this determination, and provided that its decision was based upon the evidence as a whole. With respect to his knee injury, the Commission noted that Dr. Linton performed surgery on Ewing to repair a meniscus tear, and on July 3, 2002, he placed Ewing at MMI, with a function impairment of two percent to his left leg. Accordingly, the Commission found that Ewing reached MMI from his knee injury on July 3, 2002.

¶ 27. The Commission found that Ewing sustained a work-related injury, had reached MMI, and was entitled to receive partial disability benefits, based on the evidence as a whole. We find that the evidence in the record before us substantially supports the Commission’s decision that Ewing established a causal link between his employment and his injuries. Accordingly, we find that the Commission’s findings and decision were not against the overwhelming weight of the evidence. See Smith v. Johnston Tombigbee Furniture Mfg. Co., 43 So.3d 1159, 1164 (¶ 15) (Miss.Ct.App.2010). The Commission acts as the ultimate fact-finder, and it “enjoys the presumption that it made proper determinations as to the weight and credibility of the evidence.... [I]ts factual findings are binding on this Court ... provided the findings are supported by substantial evidence.” Spencer, 869 So.2d at 1073 (¶ 15) (citations omitted). Therefore, we affirm the Commission’s order awarding compensation benefits.

¶ 28. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT/CROSS-APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. ISHEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, J.

ISHEE, J., dissenting:

¶ 29. With respect to the majority, I must dissent. As noted previously, in order to prevail on his claim for workers’ compensation benefits, Ewing must prove by a preponderance of the evidence that he suffered “an accidental injury arising out of and in the course of his employment[,] and a causal connection between the injury and the claimed disability.” S. Miss. Elec. Power Ass’n v. Graham, 587 So.2d 291, 294 (Miss.1991) (quoting Narkeeta, Inc. v. McCoy, 247 Miss. 65, 70, 153 So.2d 798, 800 (1963)). Furthermore, Ewing must “establish every essential element of the claim[,] and it is not sufficient to leave the matter to surmise, conjecture[,] or speculation.” Id.

¶ 30. Ewing’s claims of injury and assertions as to the cause of the injuries are convoluted, at best. To reiterate, on October 6, 1997, Ewing saw Dr. Lott for low-back pain from an injury he claimed he sustained at work. The injury was never formally reported to Bryan Foods. However, the records of Bryan Foods’ EMT, Owens, show Ewing came to her approximately seven months later, on May 12, 1998, alleging low-back pain from having tripped on his shoelaces at work. Nevertheless, Bryan Foods had required Ewing to wear lace-free, slip-on rubber boots at work. Accordingly, Ewing’s claim that he tripped on his shoelaces gives rise to speculation since Ewing’s boots were lace free. Additionally, Ewing never mentioned to Owens the alleged 1997 incident he reported to Dr. Lott, which he claims resulted in similar low-back pain.

¶ 31. After visiting Owens, Ewing sought treatment from Dr. Eckman. On October 1, 1998, approximately five months after seeing Owens, Ewing reported to Dr. Eckman complaining of low-back pain that he asserted began when his forklift ran into a drain hole at work. Ewing did not tell Dr. Eckman about allegedly tripping on his shoelaces at work, nor did he mention the 1997 work injury of which he complained to Dr. Lott.

¶ 32. The first formal notification of Ewing’s injuries was delivered to Bryan Foods on June 22, 1999, when Ewing sent a demand letter seeking workers’ compensation benefits due to back and leg injuries supposedly sustained from lifting a heavy object at work. This was the first mention of any leg injuries and the first mention of any injuries sustained from lifting a heavy object. No note was made as to Ewing tripping on shoelaces or running his forklift into a drain hole.

¶ 38. In March and April of 2000, Ewing was involved in two motor-vehicle accidents. He admits to having sustained an injury to his back as a result of the March 2000 accident. On April 6, 2000, Ewing filed his first formal petition to controvert, claiming to have tripped on his shoelaces at work and injured his back. No mention was made of leg or knee injuries. Likewise, Ewing cited the back injury as being attributable to tripping on shoelaces, not lifting a heavy object, running his forklift into a drain hole, or being involved in a motor-vehicle accident. Finally, on May 21, 2001, Ewing filed his second petition to controvert, including an injury to his left-lower knee sustained from the alleged fall from tripping on his shoelaces.

¶ 34. I find Ewing’s failure to maintain consistency in his claims of incidents and injuries between 1997 and 2001 to be unsettling. Likewise, the AJ initially assigned to the case found that Ewing had failed to establish by the preponderance of the evidence that he had suffered compen-sable injuries related to his employment. Her ruling was based, in large part, on Ewing’s inability to connect his injuries to specific incidents at the workplace. As stated previously, to receive workers’ compensation benefits, a claimant must establish that the alleged injury arose out of and in the course of his employment without leaving any element subject to conjecture or speculation. Id.

¶ 35. The AJ’s 2006 dismissal was overturned by the full Commission, in part, on the theory that Ewing is mentally disabled. The full Commission determined that the Social Security Administration’s order resolved Ewing’s inconsistencies by showing he is “mentally inflicted.” However, the order is the only evidence in the record that mentions the possibility that Ewing is mentally incapacitated. Ewing has failed to claim a mental incapacity at any time other than through the order. Additionally, Ewing’s medical records, with regard to mental incapacity, were never submitted to the full Commission or the AJ. The order is merely a secondhand interpretation of supposed medical evidence to which neither Ewing’s doctors nor Bryan Foods’ counsel has been privy. While I recognize that the Workers’ Compensation Commission abides by relaxed rules of evidence, this seems largely unjust.

¶ 36. Ewing’s inconsistencies about his injuries and how he received his injuries should serve as a substantial basis to support the AJ’s original order denying Ewing’s claims. At present, I find that Ewing cannot meet his burden of proving by the preponderance of the evidence that his injuries were sustained at work since the injuries were reported at different and contradicting times, and the causes of the injuries were also reported in an inconsistent manner.

¶ 37. The majority places great emphasis on medical evidence in the record supporting the notion that Ewing actually sustained injuries. Nevertheless, the majority fails to recognize the legal requirement for Ewing to first prove a causal link between the injuries and his employment. See id. With due respect to the majority, our analysis at this time should not lend itself to determining the extent of Ewing’s injuries. Rather, we must first address the threshold question of whether his injuries are, in fact, work-related, as defined under Mississippi workers’ compensation laws. Since Ewing has yet to establish the causal connection required under the law, I find that Ewing has not presented this Court with a prima facie workers’ compensation claim.

¶ 38. However, should Ewing suffer from a verifiable mental condition that would relate to his inability to coherently recount work events causing his injuries, I may view the case differently. Nonetheless, I cannot find from the evidence before us that Ewing is mentally inflicted. Likewise, I cannot determine that the full Commission was presented with sufficient evidence in the record before it to make such a finding.

¶ 39. The Social Security Administration’s order is simply not sufficient to establish a mental incapacity, and should not have been considered by the full Commission as substantive evidence of a mental disability. Again, the order is merely a secondhand opinion of medical records not provided to Bryan Foods or Ewing’s doctors involved in the present litigation. As such, in addition to Ewing not properly establishing a mental incapacity in the record, Bryan Foods was not provided any opportunity to rebut the notion of a mental incapacity.' Additional medical evidence regarding Ewing’s mental state is necessary to determine whether or not he has a viable claim for any compensable injuries. As such, I would reverse and remand this case for further findings on Ewing’s mental capacity as it relates to his claims for workers’ compensation benefits.

BARNES, J., JOINS THIS OPINION.


author: FAIR, J.,

text:
    Darnell WINN a/k/a Nell, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00938-COA.
    Court of Appeals of Mississippi.
    Sept. 3, 2013.
    Rehearing Denied Dec. 10, 2013.

      Leslie S. Lee, Jackson, Sanford E. Knott, Justin Taylor Cook, Marvell Maurice Gordon, Jackson, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Darnell Winn was convicted of aggravated assault in the attempted shooting of Robert Johnson, his stepbrother. Winn’s argument on appeal is essentially that because the bullet did not hit Johnson, there is insufficient evidence he intended it to. We do not find this argument persuasive and conclude a rational trier of fact could have found that Winn simply missed.

FACTS

¶ 2. Winn and Johnson had known each other for nearly all their lives. Their relationship soured while they were in college, after their girlfriends began feuding over a television they had once shared as roommates. On April 2, 2010, Good Friday, Johnson and Winn found themselves together at a convenience store in their hometown of Hollandale. Both girlfriends were present, as were numerous other people they knew. Winn approached Johnson and they began arguing about what one had previously said about the other. A fight ensued that could only be described as mutually joined.

¶ 8. According to the State’s witnesses, Johnson eventually got the upper hand and decisively knocked Winn down in a way that evoked laughter from the spectators. Winn then made a threatening remark about his “iron” and stated “it’s not over.” After being pulled back into his girlfriend’s car, Winn came out with a pistol. He fired a single shot into Johnson’s vehicle as it was leaving the parking lot. The shot did not hit anyone, but it shattered the front passenger’s side window. Each of the passengers in the vehicle with Johnson claimed to have seen Winn fire the shot.

¶ 4. Winn testified in his own defense, denying he lost the fight. He claimed he was being restrained by a friend when the shot was fired and did not see where it came from. At the time, he believed it was Johnson who had shot at him. Winn’s denial was corroborated by several witnesses, who acknowledged a shot was fired, but not by Winn. None could say where the shot came from, however.

¶ 5. The jury convicted Winn of aggravated assault, and he was sentenced to eight years, with three to serve. He appeals contending the verdict was unsupported by sufficient evidence or, in the alternative, was against the overwhelming weight of the evidence.

DISCUSSION

1. Sufficiency of the Evidence

¶ 6. Winn’s first contention is that the State failed prove he attempted to shoot Johnson because the bullet struck the front passenger’s side door of Johnson’s vehicle, while Johnson was sitting in the back seat on the driver’s side.

¶ 7. One is guilty of aggravated assault under Mississippi Code Annotated section 97-3-7(2)(a) (Supp.2012) if he “attempts to cause ... bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.... ” The indictment tracks the language of the statute and specifically identifies Johnson as Winn’s intended victim.

¶ 8. The inquiry as to sufficiency is whether the evidence shows “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quotation omitted). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 9. “[Ijntent, being a state of mind, is rarely susceptible of direct proof.” Jones v. State, 920 So.2d 465, 472 (¶ 17) (Miss.2006). Instead, it “ordinarily must be inferred from the acts and conduct of the party and the facts and circumstances attending them.” Wales v. State, 73 So.3d 1113, 1121 (¶ 22) (Miss.2011).

¶ 10. According to the State’s evidence, Winn had lost a fight with Johnson and was bloodied and humiliated. Immediately before the shooting, Winn threatened Johnson, and he had no apparent motive to shoot the person sitting in the front passenger’s seat. Moreover, Johnson’s vehicle was described by some witnesses as being in motion and turning when the shot was fired. The jury could have rationally concluded Winn’s aim was affected by his injuries and emotions and that he simply missed when he tried to shoot Johnson. The jury could also have found that the orientation of the vehicle was such that Winn believed he could hit Johnson by firing through the vehicle diagonally.

¶ 11. The fact that competing inferences could be drawn from the surrounding facts is of no concern when the issue is sufficiency of the evidence; any conflict is for the jury to resolve. Goff v. State, 14 So.3d 625, 650 (¶ 97) (Miss.2009). The jury, like any finder of fact, is entitled not only to judge credibility and weigh evidence; it is entrusted to interpret evidence that is “capable of more than one reasonable interpretation.” See Trim, v. Trim, 38 So.3d 471, 479 (1120) (Miss.2010).

¶ 12. There is sufficient evidence to support Winn’s conviction.

2. Weight of the Evidence

¶ 13. Winn’s final contention is that the verdict was against the overwhelming weight of the evidence. A new trial based on the weight of the evidence should be granted “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844 (¶ 18) (citation omitted). The motion for a new trial is entrusted to the circuit judge, who had a first-hand view of the trial. “[R]eversal is warranted only if the trial court abused its discretion in denying [the] motion for new trial.” Ivy v. State, 949 So.2d 748, 753 (¶ 21) (Miss.2007).

¶ 14. Winn acknowledges that numerous witnesses testified he fired the shot, but he points out that no shell casing was recovered, no gun was found, and several other witnesses denied that he fired the shot. He also notes that the witnesses testifying against him might have been biased toward Johnson’s side, while he claims his witnesses were shown to be more neutral. Johnson essentially asks this Court to reweigh the credibility of witness testimony on appeal, which we cannot do. Conflicts in witness testimony are for the jury to resolve; it is the sole judge of credibility. Nix v. State, 8 So.3d 141, 146 (¶ 26) (Miss.2009).

¶ 15. The verdict is not against the overwhelming weight of the evidence. This issue is without merit.

¶ 16. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED, AND FIVE YEARS OF SUPERVISED PROBATION, AND TO PAY A $4,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Winn left the scene after the shooting and could easily have taken these things with him.


author: ISHEE, J„

text:
    Jeremy CLARK a/k/a Jeremy D. Clark, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01663-COA.
    Court of Appeals of Mississippi.
    Sept. 3, 2013.
    Rehearing Denied Dec. 10, 2013.

      Jane E. Tucker, Jackson, Leslie R. Brown, Madison, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    GRIFFIS, P.J., ISHEE, ROBERTS and CARLTON, JJ.
   ISHEE, J„

for the Court:

¶ 1. Jeremy Clark was convicted in the Madison County Circuit Court of possession of a weapon by a felon. He was sentenced to ten years in the custody of the Mississippi Department of Corrections (MDOC), with a ten-year sentence enhancement for the use of a firearm during the commission of a felony. Clark filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The motion was denied. Aggrieved, Clark appeals. Finding error, we reverse and remand for a new trial consistent with the findings of this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 15, 2010, Madison County-Sheriffs Deputy Shane Lang received reports of illegal drug activity. He then drove to the location of the alleged drug activity. Upon arriving at the location, he observed a small group of people standing behind a building. An individual, later discovered to be Clark, started to run away. Deputy Lang pursued Clark. He could see that Clark was holding something in his right hand. As Deputy Lang neared Clark, Clark threw something onto the roof of a building. Thereafter, Clark was apprehended.

¶ 3. It was later discovered that the item Clark threw onto the roof of the building was a silver Rossi .38 handgun. Deputy Lang admitted that the gun was never examined for fingerprints, had not been reported stolen, and was not registered with the Department of Public Safety.

¶ 4. Since Clark had been convicted of robbery in August 2008, he was charged ■with possession of a firearm by a felon. He was later indicted by the Madison County grand jury for possession of a firearm by a felon in violation of Mississippi Code Annotated section 97-37-5 (Supp. 2012). The parties agreed to stipulate to the fact that Clark was a felon within the meaning of the statute.

¶ 5. Before Clark’s trial, Cedric Wood-berry approached Assistant District Attorney Bryan Buckley and informed him that the gun in question was actually his. However, when Woodberry went to Deputy Lang to make a written statement, Woodberry declined to provide one after being told he could be charged with making a false statement. Nonetheless, during the trial, the defense called Woodberry as a witness. He testified that he was part of the group of individuals present when Deputy Lang arrived on the day of the incident. According to Woodberry, he was carrying a .38 Rossi handgun, and he was the one who threw the gun onto the roof of the building.

¶ 6. Arthur Jackson also testified at trial. He lives behind the building around which the individuals were gathered. He observed Clark’s arrest. In Jackson’s opinion, the officers would not have been able to observe which individual threw the gun onto the roof of the building because their view would have been blocked by the building.

¶ 7. Ultimately, the jury returned a guilty verdict. Clark filed a motion for a JNOV or, in the alternative, a new trial. His motion was denied. Clark was then sentenced to serve ten years in the custody of the MDOC for possession of a firearm by a felon. He was further sentenced to serve an additional ten years pursuant to Mississippi Code Annotated section 97-37-37(2) (Supp.2012) for the use of a firearm during the commission of a felony. The two terms were ordered to be served consecutively with each other. Clark’s suspended sentence from his 2008 robbery conviction was also revoked and ordered to be served consecutively with the other sentences imposed.

¶ 8. Clark now appeals, arguing: (1) the trial court impermissibly sentenced him twice for the same conduct in violation of the Double Jeopardy Clause; (2) the sentence enhancement was improperly applied because there was no evidence Clark used the firearm during the commission of a felony, only that he possessed it; (3) application of the enhancement by the trial court and not the jury violates his right to a trial by jury, and the enhancement was not included in the indictment; (4) the trial court erred by refusing to allow Shoneital Shields to testify; and (5) the trial court erred by denying his motion for a JNOY or, in the alternative, a new trial. Finding error, we reverse and remand for a new trial.

DISCUSSION

¶ 9. We find that the trial court abused its discretion and committed reversible error by excluding Shields’s testimony. Although this issue is dispositive, we will also address Clark’s assignments of error regarding double jeopardy, the application of the sentence enhancement, and the right to a trial by jury. We discuss these issues for purposes of remand, should they reappear.

I. Exclusion of Defense Witness

¶ 10. Clark argues the trial court erred by excluding a defense witness, Shields, from testifying. At trial, the State asked that the witness be prevented from testifying because of the defense’s failure to comply with Uniform Rule of Circuit and County Court 9.04 and the witness’s violation of Mississippi Rule of Evidence 615, the sequestration rule.

¶ 11. Rule 9.04(C)(1) states:

If the defendant requests discovery under this rule, the defendant shall ... promptly disclose to the prosecutor ... [the][n]ames and addresses of all witnesses in chief which the defendant may offer at trial, together with a copy of the contents of any statement, written, recorded or otherwise preserved of each such witness and the substance of any oral statements made by any such witness!.]

Rule 9.04(1) provides the appropriate remedy for evidence not timely disclosed during discovery. That section states in part:

If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.

This section also applies to discovery violations made by the defense.

¶ 12. The State was only provided Shields’s name one day before the trial. Her address was also incorrectly listed as “Dinkins Street,” when she had actually moved to “Canal Street.” Furthermore, her first name had been misspelled. On the day of the trial, a proffer of Shields’s testimony was made, but the State still claimed unfair surprise. The trial judge declined to declare a mistrial and found that a continuance would not remedy the situation. Therefore, he excluded the witness.

¶ 13. The exclusion of Shields’s testimony was an abuse of discretion. Although her first name was misspelled and the wrong street address was listed, there is no evidence that this hindered the State’s ability to contact her. There is no evidence that the State even attempted to contact her. Furthermore, the State heard Shields’s proffered testimony outside of the presence of the jury. The State had the opportunity to cross-examine her at this point but declined to do so. The proper remedy in this case would have been to grant a continuance, if requested by the State, rather than exclude the witness.

¶ 14. When considering a violation of the sequestration rule, our review is limited to an abuse of discretion. Whit-tington v. State, 748 So.2d 716, 719 (¶ 19) (Miss.1988) (citation omitted). Mississippi Rule of Evidence 615 states:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.

Failure to comply with a sequestration order does not automatically render the witness’s testimony inadmissable. Harris v. State, 937 So.2d 474, 479 (¶ 16) (Miss.Ct. App.2006). Instead, “Appropriate remedies for a sequestration violation include prospectively excluding the witness where prejudice will otherwise ensue; striking the testimony where connivance gave rise to the testimony; [or] striking the testimony where the prejudice arose.” Kiker v. State, 919 So.2d 190, 194 (¶ 9) (Miss.Ct. App.2005). “Exclusion of the testimony is a ‘serious sanction,’ and appropriate only where probable prejudice would result to the other party.” Harris, 937 So.2d at 479 (¶ 16) (citing Douglas v. State, 525 So.2d 1312, 1318 (Miss.1988)).

¶ 15. With regard to the exclusion of Shields based on her violation of the sequestration order, we also find this was an abuse of discretion. There is no evidence the State would be prejudiced by her testimony. The record reflects that Shields inadvertently walked into the courtroom as Woodberry was completing his testimony. Although her testimony was consistent with Woodberry’s testimony, in her proffer, she testified to independent facts. Shields was present at the scene and witnessed the entire event, and her testimony was more far-reaching than Woodberry’s testimony. There was no evidence that she altered her testimony in any way to conform to Woodberry’s version of events. Accordingly, she should have been permitted to testify despite her violation of the sequestration order. We reverse the trial court’s judgment and remand this case for further proceedings consistent with this opinion.

II. Double Jeopardy

¶ 16. Clark asserts his sentence enhancement for possession of a firearm during the commission of a felony constitutes double jeopardy. He asserts the two offenses — possession of a firearm by a felon and use of a firearm during the commission of a felony — are the same offense. Therefore, he claims that each charge does not require proof of an additional fact that the other does not. The State asserts that the sentence enhancement is not punishment for an actual crime, but merely alters the sentence for the crime committed; thus, it does not raise any double-jeopardy issues.

¶ 17. The Fifth Amendment to the United States Constitution guarantees that “[no] person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.... ” “This guarantee, enforceable against the states through the Fourteenth Amendment, assures three separate protections: (1) protection from a second prosecution for the same offense after acquittal, (2) protection from a second prosecution for the same offense after conviction, and (3) protection from multi-pie punishments for the same offense.” Graves v. State, 969 So.2d 845, 847 (¶ 7) (Miss.2007) (citing United States v. Dixon, 509 U.S. 688, 695-96, 118 S.Ct. 2849, 125 L.Ed.2d 556 (1993)). To determine whether one is subject to multiple punishments for the same offense, the well-established test is whether each offense requires proof of a fact that the other does not. Block-burger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). On appeal, we review claims of double jeopardy de novo. Foreman v. State, 51 So.3d 957, 960 (¶ 8) (Miss.2011) (citation omitted).

¶ 18. We addressed the issue of whether a sentence enhancement can give rise to a claim of double jeopardy in the benchmark case Mayers v. State, 42 So.3d 33 (Miss.Ct.App.2010). In Mayers, the defendant argued “that the application of Mississippi Code Annotated section 97-37-37,” the same sentence enhancement applicable in this case, “constitute[d] double jeopardy because it require[d] proof of the same elements as the underlying crimes.” Mayers, 42 So.3d at 45 (¶ 49). Mayers’s underlying felony was aggravated assault. Id. Although the issue in Mayers was procedurally barred, we nonetheless found it was without merit. Id. at (¶ 50). In finding the issue was without merit, we reasoned that section 97-37-37 is clearly a sentence enhancement and does not set out separate elements of an underlying felony. Mayers, 42 So.3d at 45 (¶ 50). The holding in Mayers is well established and was affirmed as recently as April 2013. Lewis v. State, 112 So.3d 1092, at 1096 (Miss.Ct.App.2013).

¶ 19. As in Mayers, Clark was only subjected to a sentence enhancement and was not charged with a separate felony. Because the sentence enhancement does not give rise to a double-jeopardy claim, this issue is without merit.

III. Sentence Enhancement

¶ 20. Clark argues the trial court erred by applying the enhancement when there was no evidence that he actually used the firearm, only that he possessed it. The State argues that possession of the weapon during the commission of the felony is sufficient to meet the statutory requirements of the enhancement.

¶ 21. Mississippi Code Annotated section 97-37-37(2) provides:

Except to the extent that a greater minimum sentence is otherwise provided by any other provision of law, any convicted felon who uses or displays a firearm during the commission of any felony shall, in addition to the punishment provided for such felony, be sentenced to an additional term of imprisonment in the custody of the Department of Corrections of ten (10) years, to run consecutively, not concurrently, which sentence shall not be reduced or suspended.

While Clark was found to be in possession of the weapon, the evidence does not support that he used or displayed the firearm in the commission of the felony. The Supreme Court has previously addressed the meaning of “use” in a similar statute, and stated that it “must connote more than mere possession.... ” Bailey v. United States, 516 U.S. 137, 143, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (superceded by statute on other grounds). Furthermore, the Supreme Court stated that “[t]he Government must show that the defendant actively employed the firearm during and in relation to the predicate crime.” Id. at 150,116 S.Ct. 501.

¶ 22. The evidence in this case reflects that Clark merely possessed the gun. The trial court incorrectly determined that possession alone constitutes use or display. Therefore, we also find that the trial court improperly applied the sentence enhancement because there was insufficient evidence showing Clark used or displayed the firearm during the commission of a felony.

IV. Right to Trial by Jury

¶ 23. Clark argues he was denied the right to a trial by jury because the trial judge, and not the jury, determined that the sentence enhancement was applicable. Clark bases his argument on the well-established rule that a defendant is entitled to “a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (citing United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)). Furthermore, the sentence enhancement was not included in the indictment. The State argues the jury found each element of the sentence enhancement when it found Clark guilty of possession of a weapon by a felon.

¶ 24. In Mayers, the defendant argued the sentence enhancement was not included in the indictment and was not decided by the jury. Mayers, 42 So.3d at 45 (¶ 51). We held: “The jury found beyond a reasonable doubt ... that Mayers used a firearm during the commission of a felony.” Id. at 46 (¶ 52). Therefore, each factor contained in Mississippi Code Annotated section 97-37-37 was contained in the indictment and decided by the jury. Mayers, 42 So.3d at 46 (¶ 52). Accordingly, we found the issue was without merit. Id.

¶ 25. Mississippi Code Annotated section 97-37-5(1) states: “It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm.... ” Section 97-37-5(2) further states that “[a]ny person violating this section shall be guilty of a felony....” The jury found Clark guilty of possession of a weapon by a felon under this statute. Unlike in Mayers, though, the jury in this case did not find that Clark used the firearm during the commission of the felony. Accordingly, Clark was not found to be guilty of every element of the crime beyond a reasonable doubt. Therefore, in addition to finding the trial court erred by applying the enhancement when there was no proof of use or display of a firearm, we find the trial court’s application of the enhancement violated Clark’s right to a trial by jury.

¶ 26. In sum, we reverse and remand for a new trial consistent with this opinion.

¶ 27. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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


author: ISHEE, J.,

text:
    Howard Clarke REEVES, Appellant v. Brenda McCullough REEVES, Appellee.
    No. 2012-CA-01182-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.
    J. Edward Rainer, Gary Lee Williams, Brandon, attorneys for appellant.
    Joseph A. Fernald Jr., Brookhaven, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In February 2010, in the Lincoln County Chancery Court, Howard Clarke Reeves sought separate maintenance from his wife, Brenda McCullough Reeves, after Brenda left their marriage. The chancellor denied Howard’s request, concluding that Howard’s alcoholism and abuse throughout the eight-year period prior to his filing largely contributed to Brenda’s departure. In April 2011, Howard filed a complaint for divorce on the ground of desertion. Brenda filed a motion to dismiss Howard’s complaint, stating he had not proven the basic elements of desertion. Brenda claimed that under their circumstances, in order to claim desertion, the law required Howard to prove that he had made a good-faith reconciliation offer to Brenda at least one year prior to his filing for divorce. The chancellor agreed, and found that Howard had not met the one-year requirement as of April 2011. The chancellor granted Brenda’s motion and dismissed the complaint. Howard now appeals, asserting the chancery court erred in its determination that he had not met the one-year requirement and erred in its failure to grant him a divorce on the ground of desertion. Finding no error, we affirm the chancery court’s judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Howard and Brenda married in January 1977. The record reflects that around February 2008, Brenda left the marital home. Shortly thereafter, Howard filed for separate maintenance, seeking financial support from Brenda. Brenda filed a motion to dismiss Howard’s petition, and the case was tried in February 2010.

¶ 3. During the trial, the evidence revealed Howard had a substantial temper, had consistently abused alcohol over an eight-year period prior to the trial, and had engaged in numerous violent rampages where he was physically and emotionally abusive toward Brenda. As such, the chancellor determined that Howard was the greatest cause of Brenda’s departure from the marriage. On February 3, 2010, the chancellor granted Brenda’s motion to dismiss Howard’s petition for separate maintenance.

¶ 4. One month later, Howard filed his first complaint for divorce on the ground of desertion. For reasons not related to this matter, the complaint was dismissed. On April 11, 2011, Howard filed another complaint for divorce on the ground of desertion. Brenda filed a motion to dismiss. Brenda’s motion was denied in September 2011, and the matter was set for trial on February 8, 2012.

¶ 5. At trial, Howard presented evidence in his ease-in-chief that Brenda had maintained her separation from Howard and their marital residence for approximately four years. However, after Howard rested his case, Brenda moved again to dismiss Howard’s case. Brenda asserted that under Mississippi law, if a separate-maintenance action was previously filed and ruled on adversely to a petitioner now seeking divorce on the ground of desertion, the petitioner must prove he made a good-faith reconciliation attempt with his spouse at least one year prior to his filing for divorce. Brenda then claimed Howard did not make a good-faith-reconciliation attempt at least one year prior to April 11, 2011, and, hence, he had failed to prove a prima facie case for divorce on the ground of desertion.

¶ 6. The chancery court agreed. The chancellor stated that Howard had not provided substantial proof to meet the one-year requirement under Mississippi law. Therefore, the chancellor dismissed Howard’s complaint. Howard now appeals.

DISCUSSION

¶ 7. It is well settled that appellate courts are bound by a limited standard of review in domestic-relations matters. See, e.g., Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss.1994). The Mississippi Supreme Court has held that a chancellor’s findings of fact, especially in divorce cases such as the instant case, “will generally not be overturned by this Court on appeal unless they are manifestly wrong.” Fancher v. Pell, 831 So.2d 1137, 1140 (¶15) (Miss. 2002) (citing Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989)). The chancellor must have been “manifestly wrong, clearly erroneous[,] or an erroneous legal standard [must have been] applied,” for the findings to be overturned. Montgomery v. Montgomery, 759 So.2d 1238, 1240 (¶ 5) (Miss.2000) (quotation omitted).

¶8. Howard asserts the chancery court erred in finding that he failed to meet the one-year requirement for seeking a divorce on the ground of desertion. As such, Howard also asserts that the chancery court erred in failing to grant him a desertion-based divorce. The supreme court has addressed divorce cases such as the instant case wherein a separate maintenance action has been adjudicated prior to the filing for divorce on the ground of desertion. See Day v. Day, 501 So.2d 353, 354 (Miss.1987). In Day, the supreme court summarized desertion as follows:

If either party, by reason of such conduct on the part of the other as would reasonably render the continuance of the marital relationship unendurable, or dangerous to life, health[,] or safety, is compelled to leave the home and seek safety, peace[,] and protection elsewhere, then the innocent one will ordinarily be justified in severing the marital relation and leaving the domicile of the other, so long as such conditions shall continue, and in such case the one so leaving will be not guilty of desertion. The one whose conduct caused the separation will be guilty of constructive desertion[,] and if the condition is persisted in for a period of one year, the other party will be entitled to a divorce.

Id. at 356 (citation omitted).

¶ 9. However, the determination of whether desertion exists is viewed differently in light of an adjudicated separate-maintenance order. Id. (citation omitted). The supreme court noted that if a plaintiff seeking divorce can show that, “since the judgment for separate maintenance in favor of the defendant, the conditions have changed and the plaintiff has made efforts of reconciliation with the defendant with no avail, [then] the defendant is now a deserter and the plaintiff is entitled to a divorce for desertion.” Id. (citation omitted). The proof must show that the plaintiff was “honest in his intention to remedy his fault, and that his offers of reconciliation and request to return were made in good faith, with honest intention to abide thereby, and that the defendant deliberately refused his offers.” Id. at 357 (quoting Rylee v. Rylee, 142 Miss. 832, 840-41,108 So. 161, 163 (1926)).

¶ 10. The evidence before us fails to prove that Howard made a good-faith reconciliation offer at least one year prior to April 11, 2011, as required by Day and Rylee. Howard testified at trial that he called Brenda once a month asking to reconcile. Brenda disputes this fact and further asserts that Howard’s occasional generic request to reconcile did not include a promise that he would seek rehabilitation for his alcohol abuse, nor did his requests include repentance for his prior abusive actions toward Brenda or promises that the abuse would not occur again. The evidence shows that the only good-faith reconciliation offer acknowledged by both parties was made on or about June 7, 2011 — approximately two months after Howard filed his complaint for divorce on the ground of desertion.

¶ 11. This was reflected in the chancellor’s following comments made during his ruling:

It seems to me that after a separate[-]maintenance proceeding, in order for the time to start ticking under Day, it is incumbent upon Mr. Reeves to make a good[-]faith offer.... I don’t have proof that I think rises to a preponderance of the evidence to show that Mr. Reeves made an offer for Mrs. Reeves to return home, satisfying whatever concerns she may have had, that would have started the one year running as contemplated by Day. I’m going to decline to talk about the reasonableness or unreasonableness of these post[-]filing offers that have transpired between Mr. and Mrs. Reeves....

We agree with the chancellor. The law is clear that, under these circumstances, Howard was required to make a good-faith reconciliation offer at least one year prior to filing a complaint for divorce on the ground of desertion. The evidence simply does not show that he did so. As such, the chancellor did not err in his determination that Howard failed to meet the one-year requirement at issue. This issue is dispos-itive of Howard’s second claim on appeal that the chancery court erred in failing to grant him a divorce on the ground of desertion. These issues are meritless.

¶ 12. THE JUDGMENT OF THE LINCOLN COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: IRVING, P.J.,

text:
    Terry Mark ASHMORE a/k/a Terry M. Ashmore a/k/a Terry Ashmore, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-02016-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2013.

      Terry Mark Ashmore, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., ROBERTS and JAMES, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Terry Mark Ashmore pleaded guilty to one count of conspiracy to sell morphine, a controlled substance, and two counts of the sale of morphine. The Coa-homa County Circuit Court sentenced Ashmore to five years for the conspiracy conviction and to ten years for each sale-of-morphine conviction, with the sentences to run concurrently, all in the custody of the Mississippi Department of Corrections. Ashmore filed a pro se motion for post-conviction relief (PCR), alleging that the indictment was improper, that his sentence was contrary to his plea agreement, and that he received ineffective assistance of counsel. The circuit court summarily dismissed Ashmore’s PCR motion. Feeling aggrieved, Ashmore appeals and argues that the circuit court erred in dismissing his PCR motion.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On December 8, 2009, law enforcement officials arrested Ashmore, along with a female codefendant, for conspiracy to sell a controlled substance and for the sale of a controlled substance. Ashmore insisted that he was arrested only for the unauthorized sale of Klonopin. The indictment alleged that Ashmore and his female codefendant had conspired to sell morphine and that Ashmore had, on two separate occasions, sold morphine. Ashmore pleaded guilty to the charges in the indictment. The circuit court determined that Ashmore’s pleas were “knowingly, understandably, freely, and voluntarily made” and accepted Ashmore’s guilty pleas to all counts of the indictment.

¶ 4. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 5. The circuit court may summarily dismiss a PCR motion without an evi-dentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits[,] and the prior proceedings in the case that the movant is not entitled to any relief[.]” Miss.Code Ann. § 99-39-11(2) (Supp.2013). An appellate court will not reverse a circuit court’s dismissal of a PCR motion unless the circuit court’s decision was clearly erroneous. Means v. State, 43 So.3d 438, 441 (¶ 6) (Miss.2010). However, questions of law are reviewed de novo. Id. The record does not demonstrate that the circuit court’s dismissal of Ashmore’s PCR was clearly erroneous.

I. Defective Indictment

116. Ashmore contends that his indictment was defective because, while he was arrested for the sale of Klonopin, the indictment charged him with the sale of morphine. First, it is well settled that a valid guilty plea waives all technical and non-jurisdictional defects or insufficiencies in the indictment, except the failure to charge an essential element of the crime and the circuit court’s lack of subject-matter jurisdiction. Joiner v. State, 61 So.3d 156, 159 (¶ 7) (Miss.2011). Ashmore does not challenge the indictment on either of these grounds. Also, based on the record, Ashmore entered a knowing and voluntary guilty plea; thereby waiving appellate review of all other defects in the indictment.

¶ 7. Waiver aside, Ashmore’s claim is without merit. During the plea hearing, the court informed Ashmore that he was charged with and was pleading guilty to selling morphine. After the State read Count II of the indictment, the court engaged in the following exchange with Ash-more:

COURT: Mr. Ashmore, do you understand the charge of sale of a controlled substance, that being morphine, as stated in Count II of the indictment?
ASHMORE: Yes, sir.
COURT: Did you commit that crime, sir?
ASHMORE: Yes, sir.

The court had an identical exchange with Ashmore after the State read Count IV of the indictment, which also charged Ash-more with the sale of morphine. Additionally, the State gave the following factual basis to support Ashmore’s plea:

If this matter were to go to trial, the State would prove through testimony from members of the Clarksdale Police Department’s Narcotics Unit, including
Ricky Bridges, Vincent Ramirez, and Joseph Wide, as well as the confidential informant’s testimony whose name is Sam Guest, your Honor, that on these two dates in question, September 14th and September 16th, 2009, that the narcotics unit met with the confidential informant and supplied him with bills, officially issued bills, to use in the controlled buy; that they outfitted him with video and audio surveillance.... The confidential informant traveled to the defendant’s home, met with him for a period of time and eventually exchanged twenty dollars for some Klono-pin pills, and, yes, that’s with — as to Terry Ashmore.
[T]he confidential informant then returned to the Clarksdale Police Department’s Narcotics Unit and surrendered the pills. They were eventually taken to the Mississippi Crime Lab and tested by Rob Reid and determined to be morphine, your Honor.

(Emphasis added).

¶ 8. The factual basis supporting Ash-more’s pleas, as recited by the State, revealed that even though Ashmore thought that he sold Klonopin to the confidential informant, diagnostic testing revealed that the pills were actually morphine. Therefore, Ashmore’s indictment was not defective because it stated that Ashmore sold morphine instead of Klonopin. Also, Ash-more heard the State’s presentation and knowingly and voluntarily entered guilty pleas to these charges. This issue is without merit.

II. Enhanced Penalty

¶ 9. Ashmore argues that the circuit court violated his due-process rights by enhancing his sentences after his trial attorney informed him that the State would not seek any sentence enhancements. The record clearly belies Ash-more’s argument. Ashmore’s guilty-plea petition, which he admitted that he read and signed, indicated that Ashmore understood that the sentence for each count of the sale of morphine could be a maximum of sixty years. In fact, on the guilty-plea petition, Ashmore wrote “enhanced — each count” beside the charges for the sale of morphine. Thus, he was aware that the State sought the enhanced penalty for each sale-of-morphine conviction.

¶ 10. It is clear from the record, however, that the circuit court did not enhance Ashmore’s sentences. Prior to accepting Ashmore’s guilty pleas, the court explained to Ashmore that he could be sentenced to a maximum of 125 years as a result of the sentencing enhancements for each conviction of the sale of morphine. Yet, in accordance with the recommended sentencing from the State, the court gave Ashmore a combined sentence amounting to one-fifth of the time that he could have received according to statutes. Additionally, Ash-more remains eligible for parole or probation. Accordingly, as the circuit court did not enhance Ashmore’s sentences, this issue is without merit.

III. Ineffective Assistance of Counsel

¶ 11. Ashmore’s final challenge in his PCR motion is that he received ineffective assistance of counsel. This Court has previously held that a voluntary guilty plea waives claims of ineffective assistance of counsel, “except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea.” Hill v. State, 60 So.3d 824, 827 (¶ 6) (Miss.Ct.App. 2011). Ashmore does not contend that his guilty plea was involuntary. Specifically, Ashmore asserts that his trial counsel was ineffective because counsel allegedly told Ashmore that the State would not pursue sentencing enhancements and counsel never informed Ashmore that he could chai-lenge the identity of the substance that he sold to the confidential informant.

¶ 12. To succeed on an ineffective-assistance-of-counsel claim, the petitioner must satisfy the two-pronged test espoused by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468, 476 (Miss.1984). “First, the defendant must show that counsel’s performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense.” Id. at 477 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). When a defendant pleads guilty, “he must show unprofessional errors of substantial gravity.” Cole v. State, 918 So.2d 890, 894 (¶ 10) (Miss.Ct.App. 2006) (citing Reynolds v. State, 521 So.2d 914, 918 (Miss.1988)). The defendant must demonstrate that his counsel’s “conduct proximately resulted in [a] guilty plea, and [that] but for counsel’s errors, he would not have entered the plea.” Id. (citing Reynolds, 521 So.2d at 918). Moreover, “[i]n cases involving post-conviction collateral relief, where a party offers only his affidavit, then his ineffective[-]assistance[of-eounsel] claim is without merit.” Cherry v. State, 24 So.3d 1048, 1051 (¶ 6) (Miss. Ct.App.2010) (citation and internal quotation marks omitted).

¶ 13. To support his argument, Ashmore offers only his own affidavit alleging deficiency on the part of his trial counsel. Although Ashmore’s affidavit listed other witnesses that would attest to the statements made by his trial attorney, he failed to submit affidavits from these potential witnesses and failed to state why he could not obtain affidavits from the potential witnesses. See Miss.Code Ann. § 99 — 39—9(1)(e) (Supp.2013). Accordingly, Ashmore was not entitled to an evidentiary hearing on his ineffective-assistance-of-counsel claim.

¶ 14. Consequently, because Ashmore entered a valid guilty plea, in which he knowingly and voluntarily pleaded guilty to conspiracy to sell a controlled substance and two counts of the sale of morphine, and accepted a sentence less than the sentence allowed by law, the circuit court did not err in dismissing his PCR motion. This issue is without merit.

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

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


text:
    Julian SIMS a/k/a Julian D. Sims, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01427-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2013.

      Office of State Public Defender by Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. A Yazoo County jury convicted Julian Sims of gratification of lust, kidnapping, statutory rape, and sexual battery. The circuit court sentenced Sims as a habitual offender to fifteen years for the gratification-of-lust conviction, thirty years for the kidnapping conviction, thirty years for the statutory-rape conviction, and thirty years for the sexual-battery conviction, with all sentences to run concurrently and to be served in the custody of the Mississippi Department of Corrections. Sims filed a motion for a directed verdict, a motion for a judgment notwithstanding the verdict (JNOV), and a motion for a new trial. The circuit court denied all three motions. Feeling aggrieved, Sims appeals and argues that the circuit court erred in denying his motions because the evidence is insufficient to support the verdicts and the verdicts are against the overwhelming weight of the evidence.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. One day in October 2010, fourteen-year-old Sara went to visit with Georgia May Carter, Diane Moore, and Lillian at the house the three women shared. Sims, Moore’s boyfriend, was sitting on the front porch of the house that day. After Sara knocked on the front door, Sims told her to go in. She went in and called out to Carter and Lillian, but neither answered. She looked around to see if anyone was home, but no one was there. Sims came into the house and locked the door behind him. When Sara tried to leave, Sims told her that she was not going anywhere. Sims then grabbed her by her arm, pushed her over a chair, put a condom on, pulled down her underwear, and inserted his penis into her rectum. Sara told Sims to stop and attempted to push him off of her. After Sims finished assaulting her, he told Sara not to tell anyone, and she did not at that time.

¶ 4. Skylah Fanroy testified that on the day of the October incident, she and Sara were walking down the street together, and Sara said that she was going to see if Carter was home. Fanroy stated that Sara asked Sims if Carter was home, and he responded that she was. Sara then walked into the house, and Sims walked in behind her.

115. Carter testified that Sims had been living at the house with her and her granddaughter, Moore, for about two weeks before he was arrested in December 2010, but he had been coming there to visit Moore for about two months prior to his arrest. Moore testified that Sims did not begin living or visiting with her at the house, where the October incident occurred, until November 2010. She also stated that when no one was there, they would lock the doors.

¶ 6. In December 2010, Sims approached Sara’s house while her younger brother, Jared, played outside. Sims, claiming that he had a toothache, asked Jared if Sara had any pain pills. Jared went inside and told Sara that Sims was outside. When Sara went outside with Jared, Sims asked her for the pills, then asked her if she would walk him to the stop sign down the street. Sara told Sims that she did not know what he was talking about regarding the pills and would not walk with him to the stop sign. He then grabbed her by the hand and pulled her down the street and into an alley, with Jared following them. He told Jared to “watch his back.” Sims pulled out his penis, put Sara’s hand on it, and told her that he was going to get her pregnant. Sims starting kissing Sara on her mouth and neck. After Sims let her go, Sara and Jared went home. Jared told their mother what happened. Their mother called their father, who called the police. Sara testified that she did not tell anyone about the incidents because she was afraid for her life.

¶ 7. Jared’s testimony corroborated Sara’s testimony regarding the December incident. He added that, during the incident, Sims told Sara, “This [is] what you [are] gonna get.” He stated that Sara kept trying to pull away from Sims, but Sims held her hand tight.

¶ 8. Dr. Farhan Nafis examined Sara after the December incident. Dr. Nafis testified that he had performed a physical exam but not a pelvic exam because Sara did not complain of any pain or discomfort in her pelvic area. Dr. Nafis also stated that because the October incident had occurred two months prior to the examination, any evidence of trauma to Sara’s rectum would have healed by then.

¶ 9. Sims testified that the October incident never occurred. However, he stated that he did go to Sara’s house in December and asked Jared if Sara had any pain pills. After Jared told him that Sara was washing dishes, Sims began walking down the street. He stated that Sara called his name, walked toward him, and said that she had some pills, but not with her. Sims stated that he was “about to continue walking],” and that Sara “caught up with him ... at a little jog.” Sims knew that Jared was following them. He stated that Sara hugged him and told him that she had a tooth pulled. He claimed that he tried to console her by hugging her and that she “went in [his] pants and she grabbed [his] private part.” He testified that he did not stop her and that when he let her go, she pulled her hands out of his pants.

¶ 10. Additional facts, as necessary, will be related in the analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

I. Sufficiency of the Evidence

¶ 11. Sims argues that the circuit court erred in denying his motion for a directed verdict made at the conclusion of the evidence and his motion for a JNOV. The Mississippi Supreme Court has stated that

in the face of a motion for [a] directed verdict or for [a] judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test[,] it is insufficient to support a conviction.

Bush v. State, 895 So.2d 886, 843 (¶16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)) (internal quotation marks omitted). The supreme court went on to say that

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

Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (internal quotation marks omitted). When the evidence points “in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the judgment must be reversed and rendered. Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 12. Sims claims that the State’s only evidence of the October incident was Sara’s testimony and that there was no physical evidence that the October incident or the December incident had occurred. Sims further argues that Jared’s testimony regarding the December incident is not reliable because it is inconsistent with Jared’s statement to the police and because Jared’s vantage point of the incident was “not ideal.”

A. Statutory Rape

¶ 13. Sims claims that because there is no physical evidence that the October incident occurred, his statutory-rape conviction is based on insufficient evidence. Mississippi Code Annotated section 97-3-65(l)(a) (Supp.2013) states:

The crime of statutory rape is committed when [a]ny person seventeen (17) years of age or older has sexual intercourse with a child who: (i)[i]s at least fourteen (14) but under sixteen (16) years of age; (ii)[i]s thirty-six (36) or more months younger than the person; and (iii)[i]s not the person’s spouse.

Sara, who was not Sims’s wife, was fourteen years of age, and Sims was twenty-six years of age at the time of the October incident.

¶ 14. Sara’s testimony alone is sufficient to support Sims’s statutory-rape conviction. “[A]ny questions regarding the credibility of [Sara’s] testimony [are] to be resolved by the jury.” Stevenson v. State, 13 So.3d 314, 319 (¶26) (Miss.Ct. App.2008) (quoting Price v. State, 898 So.2d 641, 652 (¶25) (Miss.2005)). Sara stated that Sims inserted his penis into her rectum. Although Sims insists that Sara’s testimony is insufficient because there is no physical evidence of the incident, “the absence of physical evidence does not negate a conviction where there is testimonial evidence.” Williams v. State, 879 So.2d 1126, 1128 (¶ 5) (Miss.Ct.App.2004) (quoting Graham v. State, 812 So.2d 1150, 1153 (¶ 9) (Miss.Ct.App.2002)). Accordingly, there is sufficient evidence to support Sims’s statutory-rape conviction.

B. Sexual Battery

¶ 15. As with his statutory-rape argument, Sims insists that because there is no physical evidence and a lack of corroborating witnesses, the evidence is insufficient to support his sexual-battery conviction. Mississippi Code Annotated section 97-3-95(l)(c) (Rev.2006) defines sexual battery as an act where a person “engages in sexual penetration with ... [a] child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child[.]” The definition of sexual penetration includes the insertion of one person’s penis into another’s anus. See Miss.Code Ann. § 97-3-97(a) (Rev.2006). As stated, Sara was fourteen years old at the time of the incident, while Sims was twenty-six years old. Sara testified that Sims inserted his penis into her rectum. As we have already noted, Sara’s testimony alone is sufficient to support Sims’s conviction for sexual battery, notwithstanding the lack of physical evidence. Thus, we find that there is sufficient evidence to sustain Sims’s sexual-battery conviction.

C. Gratification of Lust

¶ 16. Sims’s gratification-of-lust conviction arises from the December incident. Mississippi Code Annotated section 97-5-23(1) (Rev.2006) provides that:

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

Sims admitted that he was twenty-six years old at the time of the December incident. Sara testified that she was fourteen years old at that time. Although Sims insisted that he did not force Sara to touch his penis, he admitted that he did not do anything to stop her.

¶ 17. Our supreme court has held that the testimony of a single[,] uncorroborated witness is sufficient to sustain a conviction even though there may be more than one person testifying to the contrary.... The unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence!.]

Derouen v. State, 994 So.2d 748, 752 (¶ 9) (Miss.2008) (internal citations and quotation marks omitted). Jared corroborated Sara’s testimony at trial, stating that Sims forced Sara to touch Sims’s penis. Sims claims that Jared did not mention in his statement to the police that Sims asked for pain pills or pulled Sara down the street. However, Jared’s statement to the police did not conflict with his or Sara’s trial testimony of the sexual contact between Sara and Sims. Additionally, Sims’s claim that Jared’s vantage point of the incident was not ideal is of no matter here because not only was Sara’s testimony alone sufficient evidence of the incident, Jared’s testimony corroborated Sara’s testimony. Therefore, we find that the jury had sufficient evidence to convict Sims of gratification of lust.

D. Kidnapping

¶ 18. Sims’s kidnapping conviction arises from the October incident. Sara testified that Sims held her in the house against her will before he raped her. Mississippi Code Annotated Section 97-3-53 (Supp.2013) states:

Any person who, without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will, or without lawful authority shall forcibly seize, inveigle or kidnap any vulnerable person as defined in [Mississippi Code Annotated] Section 43-47-5 [ (Supp. 2013) ] or any child under the age of sixteen (16) years against the will of the parents or guardian or person having the lawful custody of the child, upon conviction, shall be imprisoned for life in the custody of the Department of Corrections if the punishment is so fixed by the jury in its verdict.

Although Sims denied that the October incident occurred, Sara testified that on the day of the incident, when she tried to leave the home after realizing that no one was inside, Sims locked the door, grabbed her by her arm, and told her that she was not going anywhere. Sims argues that Moore’s testimony — that the doors would always be locked when no one was home— corroborates his assertion that the incident did not occur because Sara could not have entered the house. He further asserts that reasonable jurors could have reached a different conclusion. That may be true, but that is not the test for determining whether a motion for a JNOV was improperly denied. Even with Moore’s testimony, the evidence does not point in Sims’s favor with such force that reasonable men could not have found without a reasonable doubt that he was guilty of kidnapping. Therefore, we find that there is sufficient evidence to convict Sims of kidnapping.

II. Weight of the Evidence

¶ 19. “When reviewing [the] denial of a motion for a new trial based on an objection to the weight of the evidence, [appellate courts] will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). The evidence is viewed in the light most favorable to the prosecution. Strahan v. State, 955 So.2d 968, 972 (¶ 11) (Miss.Ct.App.2007).

¶20. Sims insists that because there was no physical evidence and because the State relied only on Sara’s testimony, the verdicts are against the overwhelming weight of the evidence. However, “we do not find [that] the lack of physical evidence overwhelmingly weighs against the verdict[s].” James v. State, 86 So.3d 286, 297 (¶ 44) (Miss.Ct.App.2012). Physical evidence is not required to sustain Sims’s convictions of statutory rape, sexual battery, or gratification of lust. Additionally, although Sara’s testimony alone regarding the December incident is sufficient to support the verdict, we note that Jared corroborated Sara’s testimony. Further, Sims admitted that there was physical contact between him and Sara during the December incident, although his version of what occurred differed from hers. Regarding the kidnapping conviction, the jury’s determination that Sims was guilty of kidnapping was based primarily on Sara’s testimony of the October incident, and “[t]he jury is the sole judge of the weight of the evidence[.]” Lenard v. State, 77 So.3d 530, 539 (¶ 37) (Miss.Ct. App.2011) (quoting Nix v. State, 8 So.3d 141, 146 (¶ 26) (Miss.2009)). Based on these facts, we cannot say that the jury’s verdicts finding Sims guilty of statutory rape, sexual battery, gratification of lust, and kidnapping are against the overwhelming weight of the evidence or that allowing them to stand would sanction an unconscionable injustice.

¶ 21. THE JUDGMENT OF THE YA-ZOO COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, GRATIFICATION OF LUST, AND SENTENCE AS A HABITUAL OFFENDER OF THIRTY YEARS; COUNT II, KIDNAPPING, AND SENTENCE AS A HABITUAL OFFENDER OF THIRTY YEARS; COUNT III, STATUTORY RAPE, AND SENTENCE AS A HABITUAL OFFENDER OF THIRTY YEARS; AND COUNT IV, SEXUAL BATTERY, AND SENTENCE AS A HABITUAL OFFENDER TO THIRTY YEARS, WITH ALL SENTENCES TO RUN CONCURRENTLY AND TO BE SERVED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

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

      . To protect the identity of minor victims of sexual abuse, we substitute fictitious names for the victim and close relatives of the victim.

      . The record does not refer to Lillian by her full name.