author: GRIFFIS, P.J.,

text:
    Shaun WHITFIELD a/k/a Shaun Eldon Whitfield, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00395-COA.
    Court of Appeals of Mississippi.
    June 26, 2012.
    Rehearing Denied Nov. 20, 2012.
    Certiorari Denied Jan. 17, 2013.

      Shaun Whitfield, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Shaun Whitfield appeals the circuit court’s dismissal of his motion for post-conviction collateral relief, claiming that his indictment was improperly amended to charge him as a habitual offender and that he received ineffective assistance of counsel. We find no error and affirm.

FACTS

¶ 2. Whitfield was indicted on Count I, conspiracy to manufacture methamphetamine under Mississippi Code Annotated section 97-l-l(l)(a) (Supp.2011), and Count II, possession of precursors under Mississippi Code Annotated section 41-29-313 (Supp.2011). On the day before trial, Whitfield decided to enter a guilty plea to Count II. The State agreed to remand Count I to the file.

¶ 3. The case was assigned to County Court Judge Allen B. Couch Jr. for the purpose of entering the plea. On August 19, 2008, the morning of the plea hearing, the State moved to amend the indictment to charge Whitfield as a habitual offender. The amended indictment alleged that Whitfield had two prior felony convictions in Arkansas. While the motion to amend was still pending, Judge Couch proceeded with the plea hearing. Whitfield presented his plea petition, which stated that he was entering a guilty plea to the charge of possession of two or more precursors “as a 99-19-81 habitual offender.” See Miss. Code Ann. § 99-19-81 (Rev.2007).

¶ 4. Judge Couch noted that the order amending the indictment had not yet been entered. He informed Whitfield that the amendment adding his habitual-offender status could be made at any time before the sentencing. The plea colloquy continued with discussion of Whitfield’s plea as a habitual offender. Judge Couch asked: “You could get a maximum of [thirty] years. And under — especially under the habitual statute, you may have to serve every day of that [thirty]-year sentence. Do you understand that?” Whitfield answered: ‘Tes.”

¶ 5. As part of the plea agreement, the State recommended that Whitfield’s sentence be capped at ten years. Judge Couch warned Whitfield that the sentencing judge would not be bound by that agreement, and Whitfield could be sentenced to the maximum thirty years. ■Whitfield stated that he understood. Judge Couch accepted Whitfield's guilty plea, and the sentencing hearing was set for September 11, 2008.

¶ 6. Circuit Judge Robert P. Chamberlin presided over the sentencing hearing. Judge Chamberlin stated that there was a proposed order amending the indictment to add Whitfield’s status as a habitual offender. Whitfield’s counsel stated that there was no objection to the indictment. The State presented copies of Whitfield’s two prior felony convictions, to which Whitfield’s counsel responded:

Defense Counsel: My understanding is — I think what Ms. Brewer has is one certified copy. The other one is not actually certified. It’s just a copy, but Mr. Whitfield and I had some discussion about that. It’s my understanding that he is going to — which he already has with the plea, but it’s my understanding that he is going to agree before the Court today that he is in fact a habitual offender, even without Ms. Brewer having one of the copies being certified. Mr. Whitfield, have I accurately stated mine and your discussion and your wishes on this case?

Defendant: Yes, sir.

Judge Chamberlin then entered the order amending the indictment, stating:

Judge Couch noted that [Whitfield] was pleading as a habitual offender but that the actual order amending the indictment had not been entered, and Judge Couch specifically told him that the State could come back and amend the indictment, which was understood at the time of the plea and is understood, of course, by Mr. Whitfield today; therefore, I will enter the order amending [the] indictment.

¶ 7. The State recommended that Whitfield’s sentence be capped at ten years. Judge Chamberlin asked whether the State had conducted a proportionality test to determine that something less than the maximum thirty years was appropriate, and the State confirmed that it had done so. Whitfield was sentenced as a habitual offender to twenty years, with ten years to serve, and ten years of post-release supervision. He was also fined $5,000.

¶8. Whitfield file a motion for post-conviction collateral relief on May 19, 2010. He alleged numerous errors, including: the indictment failed to charge him as a habitual offender, the motion to amend the indictment resulted in an unfair surprise, the motion to amend the indictment violated due process and voided the guilty plea, the evidence offered to prove his habitual-offender status was insufficient, he did not knowingly plead guilty as a habitual offender, and he received ineffective assistance of counsel. The circuit court found that Whitfield’s claims did not merit an evidentiary hearing, and the motion was dismissed.

STANDARD OF REVIEW

¶ 9. A circuit court’s dismissal of a motion for post-conviction collateral relief will not be reversed on appeal absent a finding that the circuit court’s decision was clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

1. Amendment of the Indictment

¶ 10. Whitfield argues that he did not knowingly enter a guilty plea as a habitual offender because he was unfairly surprised by the amendment of his indictment. This contention is wholly refuted by the record.

¶ 11. Rule 7.09 of the Uniform Rules of Circuit and County Court allows that indictments may be amended to charge the defendant as a habitual offender. The only limitation on amendment is that the defendant must be “afforded a fair opportunity to present a defense and is not unfairly surprised.” Id. The Mississippi Supreme Court has held:

The rule does not speak to the timing of the amendment, only that the defendant must be “afforded a fair opportunity to present a defense” and “not [be] unfairly surprised.” URCCC 7.09. This means that the defendant must be afforded due process of law and be given fair notice of “the nature and cause of the accusation.” U.S. Const, amends. VI, XIV; Miss. Const, art. 3, §§ 14, 26.

Gowdy v. State, 56 So.3d 540, 545 (¶ 16) (Miss.2010).

¶ 12. The record shows that Whitfield knew the State was seeking habitual-offender status. His signed plea petition explicitly stated his wish to enter a plea of guilty as a habitual offender. Judge Couch began the plea hearing by informing Whitfield that the State had filed the motion to amend, which, if granted, would subject Whitfield to a maximum sentence of thirty years to be served day for day. Whitfield stated under oath that he and his attorney had reviewed the plea petition and the plea offer from the State, and that he wanted to plead guilty. Although he was fully aware of the State’s proposed amendment to the indictment and its effect on his sentence, Whitfield made no objection.

¶ 13. In Spencer v. State, 994 So.2d 878, 880 (¶ 5) (Miss.Ct.App.2008), we held that the defendant was not unfairly surprised because he had time to prepare a defense in the interval between the filing of the State’s motion to amend the indictment and the sentencing hearing. Here, Whitfield was not sentenced until almost one month later. He again expressly stated that he had no objection to the State’s motion to amend. At his sentencing hearing, he declined all opportunities to present a defense to the amendment. Furthermore, he did not request a continuance to prepare such a defense. See Nathan v. State, 552 So.2d 99, 107 (Miss.1989) (stating the supreme court “has held that where a defendant does not ask for a continuance when an indictment is amended[,] he cannot later object that he was surprised and prejudiced in this defense.”) (citations omitted).

¶ 14. Instead of preparing a defense or requesting a continuance, Whitfield admitted both of his prior felony convictions and agreed to be sentenced as a habitual offender. See Evans v. State, 988 So.2d 404, 406 (¶ 12) (Miss.Ct.App.2008) (holding that, in the context of a guilty plea, the defendant’s own admission was sufficient evidence to meet the State’s burden of proving habitual-offender status). We note that, despite his current attack on his guilty plea, Whitfield’s agreement with the State’s plea offer afforded him a much lesser sentence than the maximum thirty years he was facing.

¶ 15. We find that the timing of the amendment was proper, it was not an unfair surprise to Whitfield, and the record conclusively proves Whitfield knowingly entered his guilty plea as a habitual offender. Accordingly, this issue has no merit.

2. Ineffective Assistance of Counsel

¶ 16. Whitfield also claims he received ineffective assistance of counsel. To prove this claim, he must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Whitfield to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In cases involving post-conviction collateral relief, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶ 17. Whitfield provides no support for this claim other than his own statement. He argues that his counsel should have objected to the amendment of his indictment, but the record is clear that Whitfield himself had an opportunity to object. His counsel asked him under oath whether he wanted to proceed to enter his plea as a habitual offender, and he said yes.

¶ 18. Further, Whitfield told Judge Couch that he was satisfied with his representation and that he had no complaints about his attorney. This issue has no merit.

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

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR.

      . In an abundance of caution, Judge Cham-berlin filed a sua sponte order regarding the proportionality of Whitfield’s sentence. He applied certain factors, "including the gravity of the offense and the harshness of the penalty, comparison of the sentences imposed on other criminals in the same jurisdiction^] and comparison of sentences imposed in other jurisdictions for commission of the same crime.” He found "the maximum sentence to be disproportionate ... and that the sentence entered by the Court, pursuant to the agreement of the [S]tate and the defendant, [was] the appropriate proportionate constitutional sentence for this particular case.”


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    Charles MOORE, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-02074-COA.
    Court of Appeals of Mississippi.
    Aug. 14, 2012.
    Rehearing Denied Jan. 15, 2013.

      Dexter Lamon Woodberry, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Charles Moore was convicted of aggravated assault and conspiracy to commit aggravated assault. Moore challenges the trial judge’s denial of his motions for a mistrial after two of the State’s witnesses mentioned his prior imprisonment. Neither of the witnesses’ brief responses about his incarceration were prompted by the State, and we find no abuse of discretion in denying a mistrial. We also find no merit to Moore’s additional challenges to the weight and sufficiency of the evidence. We affirm.

BACKGROUND FACTS

¶ 2. On the evening of May 22, 2009, Moore and his three teenaged nephews stopped at a convenience store in West, Mississippi, where Moore bought them quarts of beer. After they finished then-beers, Moore mentioned to- his nephews that he “needed to take care of some business in Lexington.” Moore then drove the group to a rural area in Holmes County, where he stopped his car on a dead-end road near the trailer where his ex-girlfriend, Jennifer Hampton, was staying. Moore popped the trunk and told the boys to “get their guns.” One nephew grabbed a .22-caliber rifle and another a shotgun. Two of the nephews opened fire on a car parked in front of Jennifer’s trailer. Moore, who had snuck behind the trailer, aimed through the bedroom window and shot Jennifer’s then-current boyfriend, Derrell Blair, who was sleeping. Moore’s bullet struck Blair in the head, severely injuring him. Two of the nephews pleaded guilty to conspiracy to commit aggravated assault, but Moore proceeded to trial.

¶ 3. The jury found Moore guilty of aggravated assault and conspiracy to commit aggravated assault. After his motion for a judgment notwithstanding the verdict or new trial was denied, Moore timely appealed.

DISCUSSION

I. Evidence of Prior Criminal History

A. Witnesses’ Testimony

¶ 4. Jennifer and her father, Matthew Hampton, testified during the State’s casein-chief. Both made unsolicited comments about Moore’s having gone to the penitentiary for an unrelated crime. Jennifer and Moore had been in a long-term relationship, having five children together. And both Jennifer’s and Matthew’s unprompted comments were made in the context of explaining why Jennifer’s relationship with Moore had deteriorated.

¶ 5. Jennifer testified on direct examination about her break-up with Moore and her subsequent relationship with Blair. Jennifer explained she and Moore “tried to get back, but he went to jail for like 18 months.” Moore’s counsel objected, and the trial judge instructed the jury to disregard the testimony because “it has nothing to do with this case.” The trial judge denied Moore’s motion for a mistrial.

¶ 6. Matthew, who lived nearby Jennifer, claimed he had heard the gunshots. He immediately thought Moore had shot Jennifer or Blair. When pressed during cross-examination about why he suspected Moore had shot one of them, he explained his suspicions were based on a previous phone conversation he had overheard between Jennifer and Moore. Matthew testified that he confronted Moore about the phone conversation. And Moore purportedly told Matthew: “It ain’t like you heard. I didn’t tell Jennifer I was going to do nothing to her. I just love her, and I want to raise my kids.” Matthew claimed he responded by asking Moore: “Well, how ... can you raise your kids or want to come back home and raise your kids, [when] you jumped up and married [another woman], and now all a sudden when you done went to the penitentiary ... you want to come out and be a father.”

¶ 7. Moore’s attorney requested a bench conference and complained Matthew’s answer was unresponsive. The trial judge noted that “[Matthew] answered the question. He went on to say why that was his first thought. And if it had something to do with the penitentiary, that was why.” The trial judge suggested Moore’s attorney should perhaps not “ask him any open-ended questions.” Moore’s attorney moved for a mistrial, which was denied. No limiting instruction was requested or given regarding Matthew’s testimony.

B. Denial of a Mistrial

¶ 8. Moore claims both mentions of his incarceration violated Mississippi Rule of Evidence 404(b) and required a mistrial. Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” “The reason for the rule is to prevent the State from raising the inference that the accused has committed other crimes and is therefore likely to be guilty of the offense charged.” White v. State, 842 So.2d 565, 573 (¶ 24) (Miss.2003) (citations omitted).

¶ 9. The denial of a motion for a mistrial is reviewed for abuse of discretion. Pittman v. State, 928 So.2d 244, 249 (¶ 1) (Miss.Ct.App.2006) (citing Bass v. State, 597 So.2d 182, 191 (Miss.1992)). And we are mindful that trial judges are better situated than their appellate counterparts to decide whether a trial should be discontinued. Id. (citing Schwarzauer v. State, 339 So.2d 980, 982 (Miss.1976)).

¶ 10. Moore is correct that a government witness’s statement about a defendant’s criminal record is generally improper and inadmissible. Forbes v. State, 771 So.2d 942, 952 (¶ 33) (Miss.Ct.App.2000) (citing Reynolds v. State, 585 So.2d 753, 754-55 (Miss.1991)). But we note Jennifer’s brief comment about Moore’s imprisonment was not prompted by the State and was immediately addressed by the trial judge’s limiting instruction that Moore’s time in prison “has nothing to do with this case.” The Mississippi Supreme Court has held “[wjhere no serious and irreparable damage was engendered by an improper remark, a curative instruction is deemed sufficient to remove the taint from the minds of the jurors.” Clark v. State, 40 So.3d 531, 539 (¶ 16) (Miss.2010) (internal citations and quotations omitted). “Absent unusual circumstances, where [an] objection is sustained to improper questioning or testimony, and the jury is admonished to disregard the question or testimony, we will not find error.” Hill v. State, 4 So.3d 1063, 1065-66 (¶16) (Miss.Ct.App.2009) (quoting Wright v. State, 540 So.2d 1, 4 (Miss.1989)). We find the judge’s curative instruction was sufficient to remedy any improper reference to Moore’s criminal past and prevent any undue prejudice.

¶ 11. As to Matthew’s testimony, the record shows there was no additional limiting instruction to the jury. But that does not mean his comment about Moore’s incarceration mandates reversal. “Where the -witness refers briefly to another crime, and the testimony was not purposely elicited by the district attorney to prove the defendant’s character, no reversible error occurs.” Hobson v. State, 730 So.2d 20, 24 (¶ 10) (Miss.1998). The State did not elicit Matthew’s statements about Moore being in the penitentiary to prove Moore’s bad character. Instead, it was Moore’s attorney who asked Matthew why his first thought upon hearing gunshots was that Moore had shot Jennifer’s boyfriend. Further, in briefly mentioning the penitentiary, Matthew did not say what crime Moore had committed. Cf. Hancock v. State, 964 So.2d 1167, 1179 (¶¶ 26-27) (Miss.Ct.App.2007) (holding no reversible error occurred in the admission of testimony that the defendant told the witness “he’s got experience with the bank robberies from his prior record” because this statement was “ambiguous at best in the eyes of most jurors”).

¶ 12. Given that the jury had previously been instructed Moore’s prior incarceration had nothing to do with the present case, we find no abuse in discretion in denying Moore’s second motion for a mistrial.

II. Sufficiency and Weight of the Evidence

¶ 13. Moore argues he was entitled to a directed verdict because the State presented insufficient evidence to support his aggravated-assault and related conspiracy conviction. Alternatively, he requests a new trial, claiming the jury’s verdict was contrary to the overwhelming weight of the evidence.

A. Sufficiency of the Evidence

¶ 14. “[I]n considering whether the evidence is sufficient to sustain a conviction,” we ask “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.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 15. To establish an aggravated assault, the State was required to prove Moore “knowingly cause[d] bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm[.]” Miss.Code Ann. § 97-3-7(2)(b) (Supp.2011). The conspiracy count required the State “to show that two or more persons agreed to commit [the] crime” of aggravated assault. Berry v. State, 996 So.2d 782, 787 (¶ 12) (Miss.2008) (quoting Morgan v. State, 741 So.2d 246, 255 (¶ 26) (Miss.1999)). The agreement need not be expressed or formal. Morgan, 741 So.2d at 255 (¶ 27). Rather, “[a] conspiracy can be proven by the acts and conduct of the alleged conspirators and can be inferred from the circumstances.” Id. (citations omitted).

¶ 16. Moore only generally asserts the evidence did not support his convictions. Neither in his motion for directed verdict nor in his appeal has he specified what essential elements the State failed to prove. After reviewing the record, we find the two convictions are sufficiently supported by the evidence.

¶ 17. Jennifer testified, the night Blair was shot, she was awake in the living room of her trailer. She heard multiple gunshots outside, then one loud shot, followed by Blair moaning. She ran into the bedroom and found Blair bleeding from his head. The trial court admitted photographs showing the severity of Blair’s injuries. Jennifer also testified Moore had threatened to kill her and Blair during a confrontation a month earlier. In another incident, Moore followed them in his car as they drove away from a relative’s house.

¶ 18. Matthew testified he heard multiple gunshots coming from Jennifer’s front yard, and when he stepped outside, he saw Moore running away. Matthew chased Moore, but Moore continued fleeing and evaded him. One of Moore’s nephews, Eris Lee, testified Moore later told him he “shot that dude.” Viewing this evidence in a light most favorable to the State, we find it sufficient to sustain Moore’s aggravated-assault conviction.

¶ 19. As to the conspiracy count, Moore’s three teenaged nephews—Eris, David Moore, and Sammy Moore—all testified that they agreed to go to Lexington so Moore could “take care of some business.” When they got to Jennifer’s residence, Moore opened his trunk, and two of the nephews “got their guns.” They walked to the front of the trailer, where two of the nephews fired multiple shots with a rifle and shotgun at a parked car, while Moore snuck behind the trailer and allegedly shot Blair through the bedroom window. When the shooting ceased, Moore was spotted by Jennifer’s father, but Moore jumped a ditch and was able to elude him. Moore met his nephews back at his car, and the group drove to Kosciusko. Moore instructed his nephews, if asked, to say they were in Kosciusko that night.

¶ 20. Viewing this evidence in the light most favorable to the State, we find the jury could have reasonably inferred an agreement existed between Moore and his nephews to help Moore carry out the assault.

B. Weight of the Evidence

¶ 21. Our standard of review differs slightly when reviewing a claim based on the weight of the evidence challenging a trial court’s denial of a motion for a new trial. “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844 (¶ 18) (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)). When considering an objection to the weight of the evidence, we view the evidence in the light most favorable to the verdict and “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.” Id. (citation omitted).

¶ 22. As with his claim he should have been granted a directed verdict, Moore does not specify any contradictory evidence that shows his guilty verdict is unconscionably unjust. And we find this is not a case where “the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844 (¶ 18). Viewing the evidence in the light most favorable to the verdict, we do not find the evidence is contrary to the verdict or that the verdict is unconscionably unjust.

¶ 23. THE JUDGMENT OF THE HOLMES COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS, WITH FIVE YEARS SUSPENDED AND PLACED ON SUPERVISED PROBATION AFTER RELEASE FROM INCARCERATION; AND COUNT II, CONSPIRACY TO COMMIT AGGRAVATED ASSAULT, AND SENTENCE OF FIVE YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.

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


author: ROBERTS, J.,

text:
    Roger McMURTRY, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KM-00967-COA.
    Court of Appeals of Mississippi.
    Aug. 28, 2012.
    Rehearing Denied Jan. 15, 2013.

      Kevin Dale Camp, John Michael Duncan, Christopher Tyler Kent, attorneys for appellant.

      Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Roger McMurtry appeals his convictions for careless driving and first offense driving under the influence of alcohol. Following an unsuccessful appeal to the Rankin County Circuit Court, McMurtry claims the prosecution was obligated to call a witness to sponsor the results of the Intoxilyzer 8000 test that indicated his breath-alcohol content was .16%. MeMur-try also claims the prosecution should have been obligated to present the calibration certificates for the Intoxilyzer 8000. Additionally, McMurtry claims there was no probable cause to stop him. Finally, McMurtry argues that there was insufficient evidence to convict him for careless driving or driving under the influence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. McMurtry’s convictions stem from events that began at approximately 7:05 p.m. on November 9, 2009. Two separate callers notified the Brandon Police Department of a reckless driver on Highway 80. The reckless driver was later identified as McMurtry. One of the callers followed McMurtry and updated the police department regarding his location. Sergeant Joshua Arnold caught up and followed McMurtry, who had turned onto Interstate 20 since the callers had contacted the police department.

¶ 3. As Sergeant Arnold followed him, McMurtry drifted from one edge of his lane to the other. After McMurtry failed to stop at a stop sign, Sergeant Arnold turned on his blue lights. McMurtry did not stop. Instead, he turned left onto Highway 80. According to Sergeant Arnold, McMurtry continued driving “for a pretty good time.” McMurtry stopped after Sergeant Arnold turned on his siren.

¶ 4. Sergeant Arnold approached McMurtry’s van. Sergeant Arnold later testified that he “immediately smelled the odor of an intoxicant coming from [McMurtry’s] area.” Sergeant Arnold also observed that McMurtry’s pupils were dilated. When Sergeant Arnold asked McMurtry whether he had been drinking, McMurtry responded that “he had had one beer.” Sergeant Arnold asked, “Is that it?” McMurtry held up two fingers and said he had consumed two beers.

¶ 5. McMurtry got out and walked to the back of the van. According to Sergeant Arnold, he “could still smell the odor of an intoxicant coming from [McMurtry’s] breath.” Sergeant Arnold also noted that McMurtry “was swaying back and forth while [they] were talking.” McMurtry’s speech was also “slightly slurred.”

¶ 6. McMurtry consented to a portable breath test. Sergeant Arnold later testified that McMurtry’s portable breath test was “positive for alcohol.” McMurtry also consented to two field sobriety tests. Sergeant Arnold asked McMurtry to recite the alphabet from F to W. McMurtry tried three times, but he could not complete the test. Furthermore, McMurtry was unable to count backward from 42 to 17. Sergeant Arnold arrested McMurtry for DUI. While waiting for a tow truck, McMurtry allowed Sergeant Arnold to search the van. Sergeant Arnold found “a red cup that was still kind of cold to the touch.” Sergeant Arnold clarified that it smelled like a “mixed drink.”

¶ 7. Sergeant Arnold drove McMurtry to the Brandon Police Department. An In-toxilyzer 8000 test indicated that McMur-try’s breath-alcohol content was .16%. Sergeant Arnold charged McMurtry with driving under the influence and careless driving.

¶ 8, McMurtry went before the Brandon Municipal Court and pled nolo contendré to both charges. McMurtry then appealed to the Rankin County County Court for a de novo trial. At trial, the prosecution called Sergeant Arnold and Maury Phillips, an expert witness who testified regarding the operation and accuracy of the Intoxilyzer 8000. After the prosecution rested its case-in-chief, McMurtry called Dr. Stephen T. Hayne as an expert witness in the field of clinical pathology. Dr. Hayne testified that his retrograde-extrapolation calculation indicated that McMur-try’s blood-alcohol content was .03% at the time Sergeant Arnold stopped McMurtry. McMurtry rested after Dr. Hayne testified. The prosecution called Phillips during rebuttal. Phillips contradicted Dr. Hayne’s calculation. Sitting without a jury, the county court found McMurtry guilty of driving under the influence of alcohol and careless driving. For driving under the influence, the county court sentenced McMurtry to forty-eight hours in the Rankin County Jail, but the county court suspended the entire sentence. The county court also fined McMurtry $1,000 and suspended one-half of that fine. For careless driving, the county court fined McMurtry $50. McMurtry appealed to the circuit court. The circuit court affirmed the county court’s judgment. McMurtry appeals.

ANALYSIS

I. CONFRONTATION CLAUSE

¶ 9. McMurtry cites the United States Supreme Court’s decision in Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011) for the principle that the county court -violated his right to confront his accusers. Specifically, McMurtry claims the county court erred when it allowed the prosecution to present the results of McMurtry’s Intoxi-lyzer 8000 test without allowing McMurtry to cross-examine the person who had calibrated the machine.

¶ 10. The Mississippi Supreme Court has rejected McMurtry’s argument. “[Rjecords pertaining to intoxilyzer inspection, maintenance, or calibration are indeed nontestimonial in nature, and thus, their admission into evidence is not viola-tive of the Confrontation Clause of the Sixth Amendment.” Matthies v. State, 85 So.3d 838, 844 (¶ 19) (Miss.2012). Consequently, this issue is without merit.

II. INTOXILYZER 8000 CERTIFICATES

¶ 11. McMurtry claims the county court erred when it allowed the prosecution to submit the results of the Intoxilyzer 8000 test into evidence without submitting the machine’s calibration certificate. The State argues that McMurtry is procedurally barred from raising this issue because he did not raise it in the county court. McMurtry contends that his attorney preserved the issue by raising “a broad objection relating in all respects to the calibration of the Intoxilyzer 8000.”

¶ 12. McMurtry’s attorney objected based on the United States Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). That is, when the prosecution moved to introduce the Intoxi-lyzer 8000 results, McMurtry’s counsel objected “based upon the Melendez-Diaz holding ... that [the prosecution] would have to bring in some sort of testimony about the calibration of the machine.” In other words, McMurtry’s attorney objected because the prosecution did not produce a witness to testify regarding the calibration of the Intoxilyzer 8000.

¶ 13. Even if we were required to view McMurtry’s objection in the light most favorable to him, it does not encompass the fact that the prosecution did not produce the Intoxilyzer 8000 calibration certificates. Accordingly, McMurtry raises “an error on appeal different from that raised at the trial level.” Jones v. State, 606 So.2d 1051, 1058 (Miss.1992). “A defendant is procedurally barred from raising an objection on appeal that is different than that raised at trial.” Id. Further, “[a] trial judge will not be found in error on a matter not presented to him for decision.” Id. (citing Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988)). It follows that this issue is procedurally barred.

III. PROBABLE CAUSE

¶ 14. Next, McMurtry claims Sergeant Arnold did not have probable cause to stop him. But McMurtry never raised this issue before the county court. Consequently, this issue is also procedurally barred.

IV. SUFFICIENCY OF THE EVIDENCE

¶ 15. Finally, McMurtry claims the prosecution failed to prove beyond a reasonable doubt that he was guilty of DUI or careless driving. As our Mississippi Supreme Court has stated:

[I]n considering whether the evidence is sufficient to sustain a conviction 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 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.... [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. Should the facts and inferences considered in a challenge to the sufficiency of the evidence point 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 proper remedy is for the appellate court to reverse and render.

Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (internal citations and quotations omitted). However, this Court will determine that there was sufficient evidence to sustain the jury’s verdict if the evidence was “of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Id. (internal citations and quotations omitted).

A. Careless Driving

¶ 16. McMurtry argues that the prosecution failed to offer sufficient evidence that he was guilty of careless driving because the prosecution did not prove that he bumped or crossed any of the traffic lanes. “Any person who drives any vehicle in a careless or imprudent manner, without due regard for the width, grade, curves, corner, traffic and use of the streets and highways and all other attendant circumstances is guilty of careless driving.” Miss.Code Ann. § 63-3-1213 (Rev. 2006).

¶ 17. Two independent drivers called 911 and reported that McMurtry was driving carelessly. Sergeant Arnold testified that McMurtry was “kind of drifting” from right to left. Sergeant Arnold explained that he charged McMurtry for careless driving because “it was pretty obvious that [McMurtry] could not maintain control of [his] vehicle to keep it in his direct lane.” Sergeant Arnold also testified that McMurtry did not stop when Sergeant Arnold turned on his blue lights. According to Sergeant Arnold, McMurtry did not come to a complete stop at a stop sign. During cross-examination, Sergeant Arnold testified that he could see McMurtry “swerving in the roadway.” There was sufficient evidence to conclude that McMurtry was driving “without due regard for the width” of the road. Furthermore, a conviction for careless driving “can be sustained based on the uncorroborated testimony of just one witness.” Varvaris v. City of Pearl, 723 So.2d 1215, 1216 (¶ 5) (Miss.Ct.App.1998). We find no merit to McMurtry’s claim that there was insufficient evidence to sustain his conviction for careless driving.

B. Driving Under the Influence

¶ 18. McMurtry was found guilty of violating Mississippi Code Annotated section 63 — 11—30(l)(c) (Rev.2006). Section 63 — 11—30(l)(c) provides that it is unlawful for any person to drive or operate a vehicle in Mississippi if he has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons at or above the legal age to purchase alcoholic beverages. McMurtry argues that the prosecution failed to prove beyond a reasonable doubt that his breath-alcohol content was .08% or greater at the time that he was driving.

¶ 19. McMurtry’s argument is based on the concept that although he was intoxicated at the time he took the intoxilyzer test, he was not intoxicated when he was driving. McMurtry notes that Sergeant Arnold administered the Intoxilyzer 8000 test one hour and forty-three minutes after the traffic stop. McMurtry further notes that the prosecution’s expert witness, Phillips, testified that it was impossible to pinpoint McMurtry’s exact blood-alcohol content at the time Sergeant Arnold stopped McMur-try. Additionally, McMurtry draws our attention to Dr. Hayne’s retrograde-extrapolation testimony. Dr. Hayne testified that McMurtry’s blood-alcohol content would have been .03% at the time of Sergeant Arnold’s traffic stop.

¶ 20. Dr. Hayne’s calculation was based on multiple variables, including the volume of alcohol McMurtry had consumed, when McMurtry had consumed it, when McMur-try had eaten, and how much McMurtry had eaten. The county court judge noted that Dr. Hayne’s calculations relied on the concept that McMurtry “could have drank [sic] nine or eighteen beers and then gotten in his [van] and tried to drive.” The county court judge found that Dr. Hayne’s testimony was not credible and “absolutely incomprehensible.” It was within the county court judge’s discretion to determine credibility. Suffice it to say, the credibility of the witnesses is not for this Court to decide. Gary v. State, 11 So.3d 769, 772 (¶11) (Miss.Ct.App.2009). We find no merit to this issue.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY AFFIRMING THE COUNTY COURT’S CONVICTION OF COUNT I, FIRST OFFENSE DRIVING UNDER THE INFLUENCE, AND SENTENCE OF FORTY-EIGHT HOURS IN THE RANKIN COUNTY JAIL WITH THE ENTIRE SENTENCE SUSPENDED AND FINE OF $1,000 WITH ONE-HALF OF THAT AMOUNT SUSPENDED; AND COUNT II, CARELESS DRIVING, AND FINE OF $50 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . "Retrograde extrapolation” has been described as "a scientific method of making a determination of [one’s blood-alcohol content] at a particular point in time by predicting an earlier unknown value by calculating a known later value with a series of generally used average values, and projecting that result back in time.” Evans v. State, 25 So.3d 1061, 1065 (¶ 9) (Miss.Ct.App.2008) (citation and internal quotation omitted).

      . The county court judge did not find that Dr. Hayne was uninformed regarding retrograde extrapolation. Instead, the county court judge noted that Dr. Hayne "had to make a bunch of assumptions that are information only in the possession of [McMurtry] who has an obvious interest in making that formula work.”


author: ISHEE, J.,

text:
    Sylvester BELL, a/k/a Bell Sylvester, Appellant, v. STATE of Mississippi, Appellee.
    No. 2011-CP-00214-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2012.
    Rehearing Denied Jan. 15, 2013.

      Sylvester Bell, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, C.J., ISHEE and FAIR, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Sylvester Bell pleaded guilty to statutory rape and was sentenced to serve thirty years in the Mississippi Department of Corrections (MDOC) as a habitual offender, without eligibility for parole or probation. On October 19, 2009, Bell filed a motion for post-conviction relief (PCR) in the Tunica County Circuit Court. The circuit court denied Bell’s PCR motion. On appeal, Bell abandons the issues raised in his PCR motion, and, instead, he argues the circuit court erred by failing to include the transcript from his guilty plea and sentencing hearing in response to his request for the designation of records pursuant to Mississippi Rule of Appellate Procedure 10(b)(1). Because Bell did not request the transcripts during his PCR action, and the circuit court never ruled on the issue, the matter is procedurally barred. Thus, we affirm the circuit court’s denial of Bell’s PCR motion.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 17, 2004, Bell was indicted for statutory rape under Mississippi Code Annotated section 97-3-65(l)(a) (Supp.2011). Upon a motion by the State, the indictment was amended to charge Bell as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). On July 3, 2007, he pleaded guilty to the charge. Prior to sentencing, the circuit court determined that Bell had qualified as a habitual offender and was subject to sentencing under the habitual-offender statute. Bell was then sentenced to serve thirty years in the custody of the MDOC as a habitual offender, without eligibility for parole or probation.

¶ 3. On October 19, 2009, Bell filed a PCR motion in the circuit court. He argued his sentence was illegal because he was not originally indicted as a habitual offender by the grand jury. Bell also alleged certain defects on the face of the indictment.

¶4. On January 18, 2011, the circuit court denied Bell’s PCR motion, rejecting Bell’s claims of defects on the face of the indictment and his claim that he was illegally sentenced. The circuit court found that Bell was not unfairly surprised by the habitual-offender amendment to his indictment because he and his attorney were aware of the amendment prior to Bell entering a guilty plea. The circuit court reasoned that the amendment only affected Bell’s potential sentence and not his ability to defend himself against the charges. On appeal, Bell does not raise any of the issues contained in his PCR motion. Instead, he argues the circuit court erred by failing to include the transcript from his guilty plea and sentencing hearing in response to his request for the designation of records pursuant to Rule 10(b)(1).

DISCUSSION

¶ 5. When reviewing a denial of a PCR motion, this Court will not reverse the circuit court’s factual findings unless they are clearly erroneous. Smith v. State, 12 So.3d 563, 564 (¶ 4) (Miss.Ct.App.2009) (citing Andrews v. State, 932 So.2d 61, 62 (¶ 4) (Miss.Ct.App.2006)). However, where questions of law are raised, the standard of review is de novo. Id.

¶ 6. Bell argues the circuit court erred by failing to grant his request for the designation of records pursuant to Rule 10(b)(1). Rule 10(b)(1) states: “Within seven (7) days after filing the notice of appeal, the appellant shall file with the clerk of the trial court and serve both on the court reporter or reporters and on the appellee a written designation describing those parts of the record necessary for the appeal.” Bell filed a designation of records requesting that the circuit court provide “[a]ll Clerk’s papers, trial transcripts and exhibits filed, taken or offered in this case,” and “[t]he order entered on the 18th day of January, denying [Bell’s] [PCR][m]otion.”

¶ 7. We note at the outset that there is no indication that the Tunica County Circuit Clerk failed to provide the complete record regarding Bell’s PCR motion. However, Bell argues the circuit court did not provide a copy of the transcript of the guilty plea and sentencing hearing from his original criminal ease. He asserts this has hindered his ability to perfect his appeal.

¶8. Under Mississippi Uniform Post-Conviction Collateral Relief Act (UP-CCRA), “[a] prisoner who has filed a proper motion pursuant to this Act, and whose motion has withstood summary dismissal under [Mississippi Code Annotated section] 99-39-11(2) [ (Supp.2011) ], may be entitled to trial transcripts ... under the discovery provisions of [Mississippi Code Annotated section] 99-39-15 [ (Rev.2007) ], upon good cause shown and in the discretion of the trial judge.” Fleming v. State, 553 So.2d 505, 506 (Miss.1989). Thus, in a PCR action, the defendant may request the production of transcripts under section 99-39-15. However, if no such request is made, the defendant may not then argue on appeal that the circuit court erred by failing to provide transcripts related to the original conviction. A defendant may only appeal the circuit court’s denial of a request for transcripts if (1) the request for transcripts was included in a motion under the UPCCRA, or (2) the claim is raised on a direct appeal from the conviction. Fleming, 553 So.2d at 506.

¶ 9. The instant case is not a direct appeal from the conviction, and Bell never requested the transcripts either in his PCR motion or in a separate motion requesting the record. In a PCR action, the proper avenue to request transcripts is under the discovery provisions of section 99-39-15. Fleming, 553 So.2d at 506. Bell failed to follow the proper procedure for requesting his transcript. His attempt to gain access to the transcripts from his original criminal conviction through a Rule 10(b)(1) designation of records was improper.

¶ 10. “It is well settled that issues not raised before the trial court for resolution are procedurally barred from being raised for the first time before the appellate court.” Chandler v. State, 44 So.3d 442, 443 (¶ 7) (Miss.Ct.App.2010) (citing Foster v. State, 716 So.2d 538, 540 (¶7) (Miss.1998)). Because Bell failed to properly request the transcripts, the circuit court never had an opportunity to rule on the issue. Accordingly, the sole issue raised on appeal is procedurally barred. As such, we affirm the circuit court’s denial of Bell’s PCR motion.

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

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


author: RUSSELL, J„

text:
    Stephanie ROBERSON, Appellant v. LFI FORT PIERCE, INC., Mistakenly Identified as Labor Finders, and Labor Finders International, Appellee.
    No. 2011-CP-01247-COA.
    Court of Appeals of Mississippi.
    Sept. 11, 2012.
    Rehearing Denied Jan. 15, 2013.

      Stephanie Roberson, appellant, pro se.
    Thomas L. Carpenter, Gulfport, attorney for appellee.
   RUSSELL, J„

for the Court:

¶ 1. Stephanie Roberson filed a negligence action against her employer for injuries she allegedly sustained at work. The circuit court dismissed her negligence action for failure to prosecute and because the exclusivity provision of the Mississippi Workers’ Compensation Act (Act) barred her suit. Roberson argues that the dismissal was improper, citing five errors by the circuit court, but she fails to articulate a legal basis to support her assertions. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On September 10, 1999, Roberson was injured on her first day of work with LFI Fort Pierce Inc. (LFI), a franchise of Labor Finders International. Roberson filed for workers’ compensation benefits with the Mississippi Workers’ Compensation Commission (Commission), and she filed a separate negligence action in circuit court. This appeal pertains to the negligence action only.

A. Workers’ Compensation Case

¶ 3. On December 28, 2000, Roberson filed a pro se petition to controvert with the Commission, and a hearing was held on November 2, 2006. On February 28, 2007, the administrative law judge (ALJ) entered an order denying benefits. On April 2, 2007, Roberson appealed the ALJ’s order denying benefits to the full Commission. On April 5, 2007, the Commission dismissed her case as untimely because Roberson failed to file her appeal within twenty days of the ALJ’s order. The Commission’s order was affirmed by the Forrest County Circuit Court, and Roberson appealed to this Court. On September 16, 2008, this Court handed down an opinion disposing of Roberson’s first appeal, and we affirmed the decision of the circuit court, which found that the Commission properly dismissed Roberson’s workers’ compensation appeal as untimely. See Roberson v. LFI Fort Pierce, Inc., 3 So.3d 788, 790 (¶ 7) (Miss.Ct.App.2008). On March 5, 2009, the Mississippi Supreme Court denied Roberson’s petition for writ of certiorari.

B. Negligence Action

¶ 4. On November 8, 2005, Roberson, proceeding pro se, filed a negligence action against Labor Finders and Labor Finders International in the circuit court, which was apparently intended to be filed against her employer, LFI. In response, LFI filed a motion for summary judgment, asserting a statute-of-limitations defense and the workers’ compensation exclusivity bar as a defense. On January 3, 2006, the circuit court entered an order regarding the motion for summary judgment, which stated:

[T]he cause of action which [Roberson] asserts is currently being heard by [an ALJ at] the Mississippi Workers’ Compensation Commission; ... [B]ecause of the workers’ compensation case pending with the Commission, there is a workers’ compensation exclusivity bar which applies to bar this suit; ... Nevertheless, noting that [Roberson] is pro se, this [c]ourt wishes to afford her the opportunity to challenge why this bar may not apply; ... This [c]ourt grants [Roberson] sixty (60) days from the date of the hearing on this ease, December 16, 2005, until February 14, 2006, for [Roberson] to have an attorney file a written application with this [c]ourt demonstrating good cause why this case should not be dismissed with prejudice because of the workers’ compensation exclusivity bar; ... If [Roberson] does not have such an application filed within sixty (60) days, this [c]ourt will dismiss this cause of action and grant summary judgment without the need for an additional written order. This [j Judgment will at that time be designated a[f]inal [j Judgment under Rule 58 of the Mississippi Rules of Civil Procedure.

(Emphasis added). No action was taken by Roberson within that sixty-day period. In fact, Roberson failed to take any further action until 2010.

¶ 5. On September 29, 2010, the circuit clerk filed a motion to dismiss for lack of prosecution of the negligence action. On October 26, 2010, Roberson filed a document contesting the dismissal, but she basically just reiterated that she was injured at work and wanted compensation.

¶ 6. On July 21, 2011, Roberson filed a motion requesting a jury trial to enforce medical-care coverage in the negligence action. On July 29, 2011, a hearing was held, and the circuit court entered a final judgment:

This document will grant a final judgment, as first, [Roberson] did not comply with this [c]ourt’s directions in its [o]rder of January 3, 2006[,] on the application of the workers’ compensation exclusivity bar, and further, because the workers’ compensation exclusivity bar applies to bar the recovery [Roberson] requests in this cause of action.... This [c]ourt directs the [c]ircuit [c]lerk to file this document as a final judgment in this cause of action.... Because of [Roberson’s] failure to comply with this [c]ourt’s [o]rder of January 3, 2006, coupled with the absolute inactivity in this case for four and one half years thereafter, and the application of the workers’ compensation exclusivity bar, this [c]ourt finds no good cause present to prevent the dismissal of this case for lack of prosecution. This finding serves as an additional reason why this case should be dismissed with a final judgment.

(Emphasis added).

¶ 7. On August 5, 2011, Roberson filed a motion for reconsideration. On August 24, 2011, Roberson filed a motion to join Deep South Trucking Co. and American Interstate Insurance Co. On August 26, 2011, a hearing was held, and the court entered an order denying reconsideration and denying the motion to join. On September 9, 2011, Roberson appealed the circuit court’s dismissal of her negligence action for lack of prosecution and due to the Act’s exclusivity provision.

DISCUSSION

¶ 8. Our standard of review regarding a circuit court’s dismissal of an action for lack of prosecution is abuse of discretion. Hine v. Anchor Lake Prop. Owners Ass’n, 911 So.2d 1001, 1003 (¶8) (Miss.Ct.App.2005). A circuit court’s decision “will not be overturned unless there has been manifest error.” Id.

¶ 9. At the outset, we note that Roberson, who is proceeding pro se on this appeal, fails to provide a legal basis to support her contention that her negligence action should not have been dismissed. Therefore, under Mississippi Rule of Appellate Procedure 28(a)(6), her argument is procedurally barred. Notwithstanding this procedural bar, we will address the merits of her contention.

¶ 10. “It is well established that the Act is the exclusive remedy for an employee injured while acting in the scope and course of his employment.” Hurdle v. Holloway, 848 So.2d 183, 185 (¶ 5) (Miss.2003) (citing Miss.Code Ann. § 71-3-9 (Rev.2000)). Our workers’ compensation statute states:

The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action of law for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.

Miss.Code Ann. § 71-3-9 (Rev.2011) (emphasis added).

¶ 11. “The exclusivity provision of the Act is not applicable to an employee’s claim if: (1) the injury is caused by the willful act of the employer or another employee acting in the course and scope of employment and in the furtherance of the employer’s business; and (2) the injury [is] one that is not compensable under the Act.” Hurdle, 848 So.2d at 185 (¶ 5) (citing Newell v. S. Jitney Jungle Co., 830 So.2d 621, 624 (¶ 13) (Miss.2002)). Further, “[i]f the injuries were caused by an intentional tort, the exclusivity provision would not apply.” Id. at n. 4.

¶ 12. In this case, while the Commission already determined that Roberson did not have a compensable injury under the Act, Roberson has not alleged or shown any evidence of an intentional or willful act of her employer or another employee. Thus, the exception to the exclusivity provision of the Act does not apply here. Because the Act is the exclusive route under which Roberson could possibly obtain recovery in her case, her negligence action was properly dismissed.

¶ 13. We also find that the circuit court properly dismissed Roberson’s negligence action for lack of prosecution. Mississippi Rule of Civil Procedure 41(b) states: “For the failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or any claim against him.” Rule 41(d)(1) further provides:

In all civil actions wherein there has been no action of record during the preceding twelve months, the clerk of the court shall mail notice to the attorneys of record that such case will be dismissed by the court for want of prosecution unless within thirty days following such mailing, action of record is taken or an application in writing is made to the court and good cause shown why it should be continued as a pending case. If action of record is not taken or good cause is not shown, the court shall dismiss each such case without prejudice.

¶ 14. On January 3, 2006, the circuit court entered an order affording Roberson the opportunity to show why her action should not be dismissed under the exclusivity provision of the Act, with a deadline of February 14, 2006:

This [c]ourt grants [Roberson] sixty days ... to have an attorney file a written application with this [c]ourt demonstrating good cause why this case should not be dismissed with prejudice because of the ... exclusivity bar[.] ... If [Roberson] does not have such an application filed within sixty (60) days, this [c]ourt will dismiss this cause of action[.]

¶ 15. Roberson failed to take any action for four and a half years after the circuit court entered this order. Thus, on September 29, 2010, the circuit clerk filed a motion to dismiss for lack of prosecution of the negligence action. On October 26, 2010, Roberson filed a document contesting the dismissal, but she failed to show any good cause. As a result, the circuit court entered an order dismissing the case. We cannot say that the circuit court abused its discretion in dismissing the negligence action for failure to prosecute. Therefore, we affirm the circuit court’s judgment.

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

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


author: ISHEE, J„

text:
    Sharleen NORWOOD, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2011-CC-01588-COA.
    Court of Appeals of Mississippi.
    Nov. 27, 2012.

      Sharleen Norwood, appellant, pro se.
    Albert B. White, Madison, Leanne F. Brady, attorneys for appellee.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J„

for the Court:

¶ 1. In 2011, Sharleen Norwood was terminated from her employment at Rehabilitation Centers Inc. (the Center) in Magee, Mississippi, for sleeping while at work. After her request for unemployment benefits was denied, she appealed her termination and the denial of unemployment benefits to the Mississippi Department of Employment Security (MDES). After a hearing, MDES upheld her termination and the denial of unemployment benefits. Norwood then appealed MDES’s decision to the Jefferson Davis County Circuit Court. The circuit court affirmed MDES’s decision, and Norwood now appeals. Because Norwood has failed to assert a claim for relief or to cite legal authority for her appeal, we are precluded from reviewing the case. Accordingly, we affirm the circuit court’s judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Norwood was employed with the Center from January 2008 until January 2011. Norwood served as a caregiver for mentally retarded children needing constant supervision. The Center’s employee handbook listed sleeping while at work as a ground for immediate termination. Nor-wood was aware of this policy but was found with her head down on a table and her eyes closed while she was supposed to be supervising residents. After being questioned about the incident, Norwood wrote a statement admitting she had “dozed off.”

¶ 3. She was immediately terminated. After her request for unemployment benefits was denied, she appealed her termination and the denial of unemployment benefits to MDES. MDES held a hearing on the matter and affirmed the termination and the denial of benefits. Aggrieved, Norwood appealed MDES’s decision to the circuit court, which upheld MDES’s decision. She now appeals the circuit court’s judgment.

DISCUSSION

¶4. We must first note that Nor-wood fails to raise any appealable issues or cite any authority in her appellate brief. Norwood’s brief reads, in full: “I [Sjhar-leen [Njorwood hereby don’t have anything more to add A[sic] this time other then [sic] I need my ben[e]fits[.]” Likewise, in her brief to the circuit court, Nor-wood submitted a one-and-a-half-page hand-written statement reiterating that because she was not fully asleep she should not have been terminated.

¶ 5. We have yet to find in the record an instance where Norwood stated any actual assignment of error or cited any authority for her position. Mississippi Rule of Appellate Procedure 28(a)(6) requires an appellant’s brief to “contain the contentions of [the] appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” Likewise, Mississippi case law has consistently held that “[fjailure to cite any authority is a procedural bar, and [a reviewing court] is under no obligation to consider the assignment.” Taylor v. Kennedy, 914 So.2d 1260, 1262 (¶ 4) (Miss.Ct.App.2005) (citation omitted).

¶ 6. We acknowledge that Norwood has appealed this matter pro se. Nonetheless, the Mississippi Supreme Court has repeatedly stated that “pro se parties should be held to the same rules of procedure and substantive law as represented parties.” Forrest v. McCoy, 996 So.2d 158, 160 (¶ 7) (Miss.Ct.App.2008) (citations omitted). Due to Norwood’s complete failure to raise any appealable issue or cite a single authority of law, we decline to address the merits of this appeal.

¶ 7. THE JUDGMENT OF THE JEFFERSON DAVIS COUNTY CIRCUIT COURT IS AFFIRMED.

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


text:
    Theresia NORRIS and Michael Norris, Individually and on Behalf of All Wrongful Death Beneficiaries of Zachary Norris, Deceased, and The Estate of Zachary Norris, by and through Theresia Norris, Administratrix, Appellants v. SOUTHWEST MISSISSIPPI REGIONAL MEDICAL CENTER, Appellee.
    No. 2011-CA-00227-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.

      G. Joseph Diaz Jr., Christopher P. Williams, Dennis C. Sweet, III, Jackson, attorneys for appellants.
    J. Robert Ramsay, Hattiesburg, attorney for appellee.
    Before LEE, C.J., MAXWELL and RUSSELL, JJ.
   RUSSELL, J„

for the Court:

¶ 1. This case involves a wrongful-death action based on medical malpractice filed in the Circuit Court of Pike County, Mississippi. The circuit court entered a judgment in favor of Southwest Mississippi Regional Medical Center (SMRMC). Theresia Norris now appeals claiming the trial court erred in failing to amend its findings of facts and conclusions of law, as the final judgment was against the weight of the evidence; and, the trial court abused its discretion by denying the plaintiff’s motion to strike the defendant’s expert testimony and exhibits. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the morning of November 2, 2002, Theresia Norris was admitted to the Emergency Unit at SMRMC due to what she believed to be extreme labor pains. Theresia was thirty-one years of age and thirty-three weeks pregnant. Her due date was December 18, 2002. Theresia was categorized as a high-risk pregnancy for several reasons, including her obesity; her being an insulin-dependent diabetic; her having had four previous caesarean sections; and her having previously given birth to very large twins. Theresia’s last caesarean section was ten months prior, on January 24, 2002.

¶ 3. Upon arrival to SMRMC, Theresia was taken to the obstetrics unit. Nurse Vicki Brown attached Theresia to a fetal heart monitor and tocodynamometer to assess uterine activity. Nurse Brown performed a vaginal examination on Theresia, which revealed no dilation in Theresia’s cervix. At approximately 9:30 a.m., There-sia was examined by Dr. David Hubbs, who was also the on-call physician for that morning. Dr. Hubbs was Theresia’s obstetrician-gynecologist, and had delivered Theresia’s previous three children. After performing a vaginal examination, Dr. Hubbs noted that Theresia’s cervix was “closed and thick,” meaning there had been no cervical changes indicative of labor. Dr. Hubbs also found that Theresia’s blood sugar was elevated, and ordered insulin and magnesium gluconate to stabilize her glucose levels. In addition, Dr. Hubbs ordered that Theresia’s blood sugar levels be checked every four hours while she was awake. Dr. Hubbs then left the hospital.

¶ 4. At around 10:30 a.m., Nurse Brown noted that Theresia’s abdominal pains had increased, and proceeded to page Dr. Hubbs. As Theresia’s pain intensified, Nurse Brown began searching for fetal heart tones using the fetal monitor. After no success in finding a fetal heart tone around 10:33 a.m., Nurse Brown asked Nurse Sharon Moak to continue searching for fetal heart tones while Nurse Brown paged Dr. Hubbs a second time from the nurse’s station. Nurse Moak noted her search for the fetal heart tones at around 10:55 a.m. At approximately 11:00 a.m., Nurse Brown noted that Dr. Hubbs had responded to her page, had been notified of Theresia’s condition, and was on his way to the hospital.

¶ 5. Upon arrival, Dr. Hubbs performed a sonogram and found that the baby had no heart rate. Dr. Hubbs then ordered a caesarean section, and Theresia was taken to surgery. The caesarean section revealed that Theresia had suffered a uterine rupture, where the fetus and placenta had completely separated from the uterus and had extruded into Theresia’s abdominal cavity.

¶ 6. On October 31, 2003, Theresia filed a wrongful-death/medical-malpractice claim against SMRMC, against Dr. Hubbs, individually, and against his clinic, David R. Hubbs, M.D., PLLC, Hubbs Richardson PLLC. Theresia included the baby’s wrongful-death beneficiaries as plaintiffs. SMRMC filed a separate answer on January 24, 2004. On August 28, 2007, There-sia filed an amended complaint to include the baby’s estate.

¶ 7. A trial was held on July 27, 2010. On July 30, 2010, the jury could not reach a verdict as to Dr. Hubbs and his clinic, and the court declared a mistrial. As to SMRMC, the court took the matter under advisement and reserved its ruling for a later date. The court requested proposed findings of facts and conclusions of law from both SMRMC and Theresia.

¶ 8. Before filing her trial brief, There-sia filed a motion to strike the testimony of Dr. John Morrison, one of SMRMC’s expert witnesses. Theresia argued that Dr. Morrison’s use of pictures of fetal monitoring strips from another patient was unauthorized, and the use of confidential patient medical records constituted a violation of the Health Insurance Portability and Accountability Act (HIPAA). She also argued that Dr. Morrison’s use of the pictures was a discovery violation because, although Theresia was aware that the pictures of the fetal monitoring strips would be used at trial, she did not know that the strips were from an actual patient.

¶ 9. The trial court denied the motion to strike because the motion was untimely filed. While an objection to the use of the fetal monitoring strips was made during trial, Theresia’s counsel failed to state a basis for the objection. There was never an objection made based on a HIPAA violation or a discovery violation until the motion was filed. The court ruled that Theresia had been put on notice about the pictures prior to trial, and could have addressed the issue then. The court went on to say that the use of the pictures was not a HIPAA violation, because the pictures contained no identifying information.

¶ 10. On March 23, 2010, the court entered its findings of fact and conclusions of law, followed by a final judgment incorporating the former on April 11, 2011. The court dismissed the claims, ruling in favor of SMRMC. Theresia subsequently filed a motion for amended findings of fact and conclusions of law and entry of a new judgment, or in the alternative, a new trial. The trial court entered an order denying the motion on May 31, 2011.

¶ 11. On appeal, Theresia asserts that the trial court erred in denying her motion, because the court merely adopted verbatim SMRMC’s proposed findings of fact and conclusions of law, and because the judgment was against the overwhelming weight of the evidence. She also claims the trial court abused its discretion in allowing the expert testimony of Dr. Morrison. We discuss each of these issues below.

DISCUSSION

¶ 12. At the outset, we note that this case involves multiple parties. Therefore, this Court does not have jurisdiction unless the requirements of Mississippi Rule of Civil Procedure Rule 54(b) are met. Rule 54(b) states:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

¶ 13. In the case before us, on April 11, 2011, the circuit court entered a final judgment as to SMRMC, expressly determined that there was no just reason for delay under Rule 54(b), and directed the entry of a final judgment for SMRMC. Therefore, this Court has jurisdiction to proceed with this appeal.

I. Whether the trial court erred in declining to amend its findings of fact and conclusions of law.

¶ 14. “The standard by which an appellate court reviews factual determinations made by a trial judge sitting without a jury is the substantial-evidence standard.” Delta Reg’l. Med. Ctr. v. Venton, 964 So.2d 500, 503 (¶ 4) (Miss.2007). Under this standard, a trial judge’s “findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence.” Id. This Court will apply a heightened level of scrutiny where a trial court has adopted a party’s proposed findings verbatim as its own, or where a trial court has made only minor alterations. Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 145 (¶ 11) (Miss.2007) (citing Venton, 964 So.2d at 504 (¶ 5); Miss. Dep’t of Transp. v. Johnson, 873 So.2d 108, 111 (¶ 8) (Miss.2004)); Smith v. Orman, 822 So.2d 975, 977-78 (¶ 7) (Miss.Ct.App.2002). However, if a review of the record reveals that evidence exists reasonably supporting the trial court’s findings, we will not find the trial court’s reliance on the proposed findings to be in error. Thomas v. Scarborough, 977 So.2d 393, 396 (¶ 10) (Miss.Ct.App.2007) (citing Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 18) (Miss.2002)).

¶ 15. Theresia argues that the trial court erred in not amending its findings of fact and conclusions of law, because it simply restated SMRMC’s proposed findings and conclusions, with the exception of a few sentences. A review of the record shows that the trial court did, in fact, adopt nearly verbatim SMRMC’s proposed findings and conclusions as its own; however, the record contains ample credible evidence supporting the trial court’s findings.

¶ 16. The trial court found that based on the evidence, the nursing staff at SMRMC “did not deviate from the standard of care of a reasonably prudent[,] diligent, minimally competent obstetrical nurse under the circumstances then existing,” nor was “any action or inaction [on the staffs part] the proximate cause of the fetal death.” Theresia argues that the nursing staff at SMRMC deviated from the standard of care by failing to timely notify Dr. Hubbs of Theresia’s condition, failing to properly assess her pain as labor pains, and failing to assess the significance of the loss of fetal heart tones.

¶ 17. During trial, Dr. Stephen Jones, an expert witness for Theresia, stated that the amount of time a nurse should search for fetal heart tones after they are lost is not defined. Dr. Jones stated that in his opinion, if the fetal heart rate is lost for over a period of five minutes, the nurse should notify the doctor.

¶ 18. Nurse Brown testified that after performing Theresia’s vaginal examination, it was determined that Theresia was not in labor due to her cervix being closed. Nurse Brown stated that once Theresia’s stomach pains worsened, she paged Dr. Hubbs. While Nurse Moak continued to search for the fetal heart tones on the monitor, Nurse Brown paged Dr. Hubbs a second time before resuming her attempt to locate the fetal heart tones on the monitor. Nurse Brown stated that after she paged Dr. Hubbs the second time, he called back within two to three minutes. According to Nurse Brown, by 11:10 a.m., Dr. Hubbs had arrived at the unit, performed an ultrasound on Norris, and instructed the staff to set up for a caesarean-section procedure. Nurse Brown also testified that it is not uncommon for a fetal heart monitor to take ten or fifteen minutes to locate a baby’s heart rate in preterm obese patients. Nothing in the record suggests that the nursing staff at SMRMC deviated from the standard of care in searching for the fetal heart tones and attempting to contact Dr. Hubbs.

¶ 19. A review of the record indicates that Theresia was never in true labor while in the nurses’ care. Dr. Morrison testified that Theresia’s contractions demonstrated high frequency, low amplitude, which both he and Dr. Jones termed as “uterine irritability,” and not labor. Dr. Morrison provided the medical definition of labor as “regular contractions associated with changes in the cervix,” which Theresia’s multiple examinations did not reveal. After Dr. Hubbs performed Theresia’s caesarean section, Theresia’s cervix was still closed and thick, indicating that she was not in labor.

¶ 20. It was established during trial that Theresia’s uterine rupture occurred at some time between 10:31 a.m. and 10:33 a.m. Both Dr. Morrison and Dr. Jones testified that once a uterine rupture occurs, unless a caesarean section is performed within seventeen to eighteen minutes after the extrusion of the fetus, the likely result would be universal long-term neurological damage or death. However, Dr. Jones stated that he could not determine to a medical certainty whether Theresia’s uterine rupture resulted in the immediate expulsion of the fetus or whether the expulsion occurred over a period of five or ten minutes.

¶ 21. Based on the evidence, we cannot say that the trial court’s findings were erroneous. Although the trial court relied on SMRMC’s findings of fact and conclusions of law, its findings are consistent with substantial credible evidence in the record. For these reasons, we find that the trial court did not err in declining to amend its findings of fact and conclusions of law, as the judgment was well supported by the evidence. This issue is without merit.

II. Whether the trial court abused its discretion in denying Theresia’s motion to strike Dr. Morrison’s expert testimony and use of exhibits.

¶ 22. Next, Theresia contends that the trial court erred by allowing Dr. Morrison’s expert testimony and use of pictures of fetal monitoring strips from an actual patient. “Admission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion.” Haggerty v. Foster, 838 So.2d 948, 958 (¶ 25) (Miss.2002) (quoting Broadhead v. Bonita Lakes Mall, Ltd. P’ship., 702 So.2d 92, 102 (Miss.1997)). Also, “[demonstrative evidence may be admitted at the trial court’s discretion, if such evidence [is] reasonably necessary and material.... ” Id. (internal citations omitted) (quoting Murriel v. State, 515 So.2d 952, 956 (Miss.1987)).

¶ 23. The purpose of the pictures was to demonstrate to the jury what contractions look like in a laboring patient. The pictures contained two separate exemplars illustrating the patterns of true labor versus the patterns of uterine irritability. One of the fetal monitoring strips on the pictures belonged to Theresia, and the other strip belonged to an unidentified patient of Dr. Hubbs. In her motion to strike, Theresia claimed Dr. Morrison’s use of the pictures constituted a discovery violation because Theresia was not informed prior to trial that one of the strips on the pictures was taken from an actual patient. The trial court denied the motion, ruling that any information pertaining to the pictures was discoverable, as Theresia was put on notice about SMRMC’s intention to use the pictures prior to trial.

¶ 24. Theresia also argues that Dr. Morrison’s use of the pictures constituted a discovery violation of HIPPA because Dr. Morrison did not obtain the patient’s consent. The trial court ruled that using the pictures was not a HIPPA violation, because no identifying information was associated with the pictures. The trial court further held that even if a HIPPA violation did occur, it was not a claim for Theresia to assert. We agree. Under Mississippi law, only the patient or the patient’s physician may assert claims pertaining to doctor-patient confidentiality. See M.R.E. 503(c).

¶25. Theresia admits in her own brief that the most highly contested issue in this case was whether or not she was, in fact, in labor. The pictures were both highly relevant and material because they provided the jury with a visual comparison of labor versus uterine irritability, which was the core of the main issue in this case. For these reasons, we find that the trial court did not abuse its discretion by allowing the expert testimony of Dr. Morrison and his use of the demonstrative aids. Thus, this issue is without merit.

CONCLUSION

¶26. The trial court did not err in declining to amend its findings of fact and conclusions of law, as the judgment was supported by substantial credible evidence. Furthermore, the trial court did not abuse its discretion by denying Theresia’s motion to strike the expert testimony of Dr. Morrison and his use of pictures as demonstrative aids. Therefore, we affirm the judgment of trial court.

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

LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. ROBERTS, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., NOT PARTICIPATING.

      . The record is unclear as to the exact time of Dr. Hubbs’s arrival. However, the record does indicate that he arrived before 11:10 a.m. Norris’s medical records show that Dr. Hubbs had performed an ultrasound and ta-structed Nurse Brown to set up for Norris’s caesarean section at 11:10 a.m.

      . This appeal pertains solely to the circuit court’s judgment regarding SMRMC.


author: RUSSELL, J.,

text:
    Crystal HENLEY, Appellant v. Dr. Frank G. MARTIN and Biloxi Regional Medical Center, Appellees.
    No. 2011-CP-01392-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.
    Crystal Henley, appellant, pro se.
    Stephen Giles Peresich, Mary Margaret Kuhlmann, Gulfport, Mary Winter Van Slyke, Biloxi, George F. Bloss III, Gulf-port, attorneys for appellees.
    Before LEE, C.J., MAXWELL and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Crystal Henley appeals the Harrison County Circuit Court’s grant of summary judgment in favor of Dr. Frank Martin and Biloxi Regional Medical Center (BRMC). She asserts that the circuit court erred in: (1) relying on an affidavit filed three days before the scheduled hearing in granting the summary-judgment motion; (2) granting summary judgment; and (3) holding that the one-year time period for filing an action for assault and battery runs from the date of the incident without regard to the time of the discovery. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 17, 2006, Dr. Martin performed surgery on Henley at BRMC. Prior to surgery, Henley indicated that she would not accept a blood transfusion due to her religious beliefs, and the nurse made a notation in Henley’s medical record. The consent to treatment and admission form also indicated that Henley had refused to accept blood or blood components for transfusion.

¶ 3. Henley was discharged on November 24, 2006. The discharge summary stated: “Estimated blood loss was 1000 milliliters.... The patient was transfused with 2 units of packed red blood cells.” The discharge summary was prepared by Dr. Martin’s nurse practitioner on December 6, 2006, and was signed by Dr. Martin on December 8, 2006.

¶ 4. On May 14, 2007, Henley requested a copy of her medical records from her November 17, 2006 admission. Henley later testified that she received her medical records in May 2007. These medical records included the discharge summary, which mistakenly stated that she had received a blood transfusion.

¶ 5. On November 9, 2009, Henley wrote Dr. Martin a letter indicating that she needed to know, for legal purposes, whether “the two units of blood were in fact introduced into [her] body.” On November 19, 2009, Henley was notified by Dr. Martin’s office that she did not receive a transfusion.

¶ 6. On February 4, 2011, Henley filed a complaint against BRMC and Dr. Martin for assault, battery, and medical malpractice, alleging that she had received a blood transfusion despite her pre-surgery instructions. Her complaint stated:

The actions complained of ... occurred on November 17, 2006[;] however, [Henley] will show that the cause of action was fraudulently concealed from [her] as such is contemplated by [s]ection 15-1-36(2)(b) of the Mississippi Code [Annotated] until February 15, 2010, and as such, for the purpose of this action[,] the cause of action is considered to have accrued on February 15, 2010[ — ]the date that [Henley] discovered the cause of action.

¶ 7. On August 5, 2011, Dr. Martin executed an affidavit, which read, in part, as follows:

I performed [a procedure] on [Henley] at [BRMC] on November 17, 2006. During the operation, [Henley] lost approximately 1000 cc’s of blood. Two units of red blood cells were ordered and were available for possible infusion while [Henley] was in the ICU, but [Henley] refused the blood transfusion.
There is only one document in the ... medical chart [that] indicates that [Henley] received a blood transfusion. The [discharge [s]ummary indicates, among other things, that “the patient was transfused with two units of packed red blood cells.” The [discharge [s]ummary was dictated by ... my nurse practitioner, and I subsequently signed it. The inclusion of such language ... was in error, as can be demonstrated by other documents contained in the hospital chart.
Records from [BRMC’s] blood bank confirm that the two ordered units of blood were never transfused.
Other records from the hospital chart further confirm that [Henley] did not receive any blood products.
I received a letter dated November 9, 2009, from [Henley] ... asking if she actually received any blood products as a result of the surgery. There is a handwritten notation on that letter which indicates that on November 18, 2009, one of my staff members ... called [Henley] ... and left her a message. There is a separate handwritten notation ... which indicates that on November 19, 2009, [a staff member] spoke with [Henley] and informed her that she did not receive a blood transfusion in November 2006.
[Henley] did not receive a transfusion of blood products as a result of the November 17, 2006 surgery and subsequent admission to [BRMC].

¶ 8. On August 8, 2011, Dr. Martin filed a motion to dismiss with prejudice due to the expiration of the statute of limitations and a motion for summary judgment. On August 9, 2011, BRMC joined in this motion.

¶ 9. On August 15, 2011, BRMC filed an affidavit executed on August 12, 2011, by Michael Seabet, BRMC’s blood bank supervisor. Scabet’s affidavit documented the procedure for selecting, labeling, releasing, and issuing units of blood from BRMC’s blood bank. He explained that each unit of blood has a specific unit number, which is used to track the location and disposition of each unit of blood in a computerized system called a unit-history report. The unit-history report identifies each time a particular unit of blood is “selected” for a particular patient and tracks whether the unit of blood is subsequently “released” or “issued and transfused.” If a selected unit of blood is not issued and transfused to a patient within three days, the unit of blood is released back into the blood bank’s general stock, and the unit of blood becomes available for use by another patient. The unit-history report also identifies each subsequent patient the particular unit of blood is selected for, when the unit of blood is actually issued and transfused into a patient, and the exact patient who actually receives the unit of blood. Seabet stated that he personally conducted a search of the blood bank database for any units of blood selected for Henley during her hospitalization from November 17, 2006, until her discharge on November 24, 2006. He determined that two units of blood were selected for Henley on November 17, 2006, at 10:08 a.m., and that these same two units were released to the general blood bank on November 21, 2006, at 7:81 a.m. The unit-history report confirmed that these two units of blood were then selected for another patient, and the other patient actually received both units of blood on November 25, 2006, at 8:00 a.m. Therefore, Seabet was able to conclude that Henley did not receive a blood transfusion at BRMC during her hospitalization from November 17, 2006, through November 24, 2006.

¶ 10. On August 18, 2011, a hearing was held on the motion to dismiss and for summary judgment. At this hearing, Henley testified that in December 2006, she had her first follow-up visit at Dr. Martin’s office, and she was told that she did not receive a transfusion. She stated that approximately six months after her follow-up visit, she requested her medical records. Henley testified that she actually received her medical records in May 2007, which included the discharge summary mistakenly indicating she had received a transfusion.

¶ 11. On August 31, 2011, the circuit court granted the motion to dismiss and for summary judgment in favor of the appellees. The circuit court found that the assault and battery claims were time-barred by the one-year statute of limitations; therefore, it granted a Mississippi Rule of Civil Procedure 12(b)(6) motion to dismiss for these claims. The circuit court further determined that Henley’s medical-malpractice claim was time-barred:

The remaining claims made by [Henley] are all claims arising out of her treatment by Dr. Martin at [BRMC].... [Mississippi Code Annotated] [s]ection 15 — 1—36[ (1) ] provides that all such claims must be filed within two (2) years from the date the alleged action, omission[,] or neglect shall or with reasonable diligence might have been first known or discovered. [Henley] had a copy of her complete medical record on May 14, 2007. That record clearly states in the discharge summary that she received two units of blood. Once she obtained the records, she had a duty to use reasonable diligence to review the records to discover whether she had a potential cause of action against these defendants. He[r] complaint was not filed until February 4, 2011, more than three years after she received the records. Whether the date of the surgery or the date she received the record is used to trigger the statute, [Henley’s] cause of action for malpractice is time[-]barred by [section] 15-1-36(1).

Finally, the circuit court determined that, even if Henley’s claims were not time-barred, there was no genuine issue of material fact:

In support of the motion [for summary judgment,] there is an affidavit from Dr. Martin[,] which avers that the discharge summary is in error and that, although blood was ordered, it was never administered to [Henley]. The medical records reflect that the blood was “released” and not transfused into [Henley]. Further supporting Dr. Martin’s position that no blood was administered is the affidavit of [Scabet], the [b]lood [b]ank [supervisor at [BRMC]. According to Scabet’s affidavit, each unit of blood is tracked by its “unit number[,]” and a “unit history” is maintained for each unit of blood. Scabet’s search of the [b]lood [b]ank database identified two (2) units of blood that were selected for Henley on November 17, 2006. The units’ history indicated that the two units were released on November 21, 2006[,] and then indicates that the two (2) units were later selected for a different patient who received both units of blood on November 25, 2006. [Henley] failed to present any sufficient evidence to create a genuine issue of material fact regarding the question of whether she received a blood transfusion in November 2006. [Henley] is unable to establish a prima facie case of assault and battery [or] medical negligence against Dr. Martin or [BRMC].

¶ 12. Henley appealed the circuit court’s order granting the motion to dismiss and for summary judgment.

DISCUSSION

I. Whether the circuit court erred in relying on an affidavit filed three days before the scheduled hearing in granting the motion for summary judgment.

¶ 13. Henley argues that the circuit court erred in considering an affidavit filed three days prior to the hearing on the motion for summary judgment. She argues that Rule 56 requires an affidavit be filed and served at least ten days prior to a scheduled hearing. The ten-day provision in Rule 56(c) states that “[t]he motion shall be served at least ten days before the time fixed for the hearing.” (Emphasis added). Thus, there is no time limit for serving affidavits in Rule 56. Id. This issue is -without merit.

II. Whether the circuit court erred in granting summary judgment.

¶ 14. We review a circuit court’s grant of summary judgment de novo. Perez v. Univ. of Miss. Med. Ctr., 75 So.3d 609, 611 (¶ 10) (Miss.Ct.App.2011). In considering a motion for summary judgment, “[t]he evidence is considered in the light most favorable to the nonmoving party[.]” Id. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). Under Rule 56(e):

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

¶ 15. Henley argues that the circuit court erred in granting summary judgment, because there was conflicting evidence upon which a jury could have found that a transfusion took place. However, Henley does not rely upon anything other than her bare assertions that she received a blood transfusion as stated in the discharge summary. On the other hand, the appellees presented an affidavit from Dr. Martin stating that Henley did not receive the blood transfusion, and that the notation in the discharge summary was an error. Further, the blood bank supervisor submitted an affidavit explaining that the blood initially “selected” for Henley was actually transfused into another patient. After these affidavits were introduced, Henley failed to respond or set forth specific facts showing there was a genuine issue of material fact. Therefore, summary judgment was properly granted in favor of the appellees. This issue is without merit.

III. Whether the circuit court erred in holding that the one-year limitations period for filing an action for assault and battery runs from the date of the incident without regard to the time of the discovery.

¶ 16. The circuit court dismissed Henley’s claims for assault and battery due to the running of the statute of limitations. We review a trial court’s grant of a motion to dismiss de novo. Campbell v. Davis, 8 So.3d 909, 911 (¶ 13) (Miss.Ct.App.2009).

¶ 17. Henley argues that this Court should extend the time period for the statute of limitations so that the statute of limitations will not begin to run until the assault and battery has been discovered or should have been discovered. Initially, we note that statutes of limitations are a creature of statute. It is the role of the Legislature—not the courts—to establish statutes of limitations. See Fairley v. George Cnty., 871 So.2d 713, 718 (¶ 13) (Miss.2004) (noting that the court’s “role is one of interpreting the law as passed by the Legislature,” and the courts “will interpret the statute as written, ever mindful that the Legislature has the ultimate authority to further modify the statutes if it deems necessary”).

¶ 18. Turning to the relevant statute for assault and battery, Mississippi Code Annotated section 15-1-35 (Rev.2012) states: “All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels, shall be commenced within one (1) year next after the cause of such action accrued, and not after.” (Emphasis added). “[A] cause of action involving an intentional tort begins to run from the time the individual is injured and not its discovery unless the running of the limitations period is tolled by” fraudulent concealment of the cause of action. Goleman v. Orgler, 771 So.2d 374, 377 (¶ 9) (Miss.Ct.App.2000) (emphasis added).

¶ 19. In this case, Henley’s alleged injury would have occurred on November 17, 2006 — the date of her surgery. Henley did not file her complaint until February 4, 2011, which is well over one year from the date of her surgery. Therefore, her action for assault and battery is time-barred.

¶20. Even assuming for the sake of argument that a discovery rule did apply to Henley’s claim for assault and battery, Henley received the medical records in May 2007, which included the discharge summary indicating (mistakenly) that she received a blood transfusion. Henley did not file her complaint until February 4, 2011 — well over a year from the date she received the medical records. In sum, whether the discovery rule applies or not, her action for assault and battery is time-barred. This issue is without merit.

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

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

      . The notation stated: "[patient] adamant about never[,] under [any] circumstances[,] ... accepting] blood transfusions [due to] religious beliefs.”

      . According to Henley, she wanted to know why her surgery took much longer than expected.

      . Henley does not appeal the circuit court's dismissal of her medical-malpractice claim, which was dismissed due to the running of the two-year statute of limitations for medical malpractice cases under Mississippi Code Annotated section 15-1-36 (Rev.2012). We note that her medical-malpractice claim was properly dismissed as time-barred. Although there is a discovery rule for medical-malpractice cases, Henley received her medical records in May 2007, and her complaint was not filed until February 4, 2011. Therefore, the circuit court properly dismissed this claim as well.