author: CARLTON, J.,

text:
    Jaquita HAYWOOD a/k/a Joquita Haywood a/k/a Jacquita Haywood a/k/a Jaquita Haywood a/k/a “Tete”, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00219-COA.
    Court of Appeals of Mississippi.
    May 28, 2013.
    Rehearing Denied Oct. 15, 2013.
    Certiorari Denied Jan. 30, 2014.

      Stan Perkins, Greenville, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.

      Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Joquita Haywood appeals the judgment of the Bolivar County Circuit Court which convicted her of the crime of aggravated assault and sentenced her to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended and ten years to serve. Haywood argues that insufficient evidence exists to sustain her conviction of aggravated assault.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On March 31, 2011, Jebecca Triplett, Sharonda Rash, and Kinwandra McRoy visited the Paradise Lounge in Mound Bayou, Mississippi. At some point during the evening, Rash and McRoy went to the restroom. When they arrived outside the restroom, they pushed open the door and noticed that women were already inside the restroom. One of the women inside of the restroom shoved the door closed. McRoy and Rash waited outside. Eventually, the women, including Haywood, exited the restroom and began exchanging words with Rash and McRoy. This escalated into a fist fight, which resulted in Rash receiving a blow to the hand with a pool stick. The owner of the club broke up the fight, and the women left the club.

¶ 4. Triplett, Rash, and McRoy walked from the Paradise Lounge across the street to the parking lot where Triplett had parked her vehicle. McRoy testified that Haywood and Tabitha Fields approached the women as they were getting inside of Triplett’s vehicle. McRoy testified that Fields was carrying a stick and swung it at her. McRoy grabbed the stick from Fields as she swung it. The women again exchanged words, and a second fight started. During this altercation, McRoy was shot in the stomach. Triplett and Rash put McRoy inside Triplett’s vehicle and took her to the hospital.

¶ 5. Following an investigation, law enforcement officers presented McRoy with a photo lineup, which included a picture of Haywood, and asked her to identify the shooter. McRoy identified Haywood as her shooter.

¶ 6. A Bolivar County grand jury indicL ed Haywood for the crime of aggravated assault under Mississippi Code Annotated section 97-3-7 (Supp.2012). A jury ultimately convicted Haywood of the crime charged, and the trial court sentenced her to twenty. years in the custody of the MDOC, with ten years suspended. Following the trial court’s denial of Haywood’s motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative,' motion for a new trial, Haywood appealed.

DISCUSSION

¶ 7. In. her only issue on appeal, Haywood argues that the evidence insufficiently supported the guilty verdict. Haywood claims that the contradictory testimony of the State’s witnesses did not support a verdict of guilty beyond a reasonable doubt, and a new trial is warranted. The State responds by arguing that Haywood is procedurally barred from raising this issue on appeal. In support of its argument, the State alleges that Haywood failed to file a peremptory instruction and failed to renew her motion for a directed verdict at the conclusion of all of the evidence.

¶ 8. The record shows that Haywood moved for a directed verdict at the conclusion of the State’s evidence. The trial court denied the motion, and Haywood failed to renew the motion at the conclusion of all of the evidence. “If a defendant puts on evidence in [her] own defense after the denial of [her] motion for a directed verdict, [s]he waives [her] challenge to the sufficiency of the State’s evidence up to that point.” Carey v. State, 80 So.3d 131, 134 (110) (Miss.Ct.App.2012) (quoting Robinson v. State, 749 So.2d 1054, 1058-59 (113) (Miss.1999)). The defense orally moved for a finding of not guilty, or a peremptory instruction, after the record had been closed for receipt of evidence and prior to instruction of the jury by the court. The-trial court denied the defense’s motion for a finding of not guilty. In Haywood’s post-trial motions, she then argued that “the verdict of the jury was against an overwhelming weight of the evidence and further that the State of Mississippi failed to prove a prima facie case as charged in the indictment.” Contrary to the State’s argument, we find that no procedural bar prevents Haywood from raising this issue on appeal.

19. Haywood argues that her conviction by the jury was supported by insufficient evidence, and it was against the overwhelming weight of the evidence. Upon review, we find no merit to her assertion of such error. When reviewing the sufficiency of the evidence, “the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So.2d 836, 843 (116) (Miss.2005) (internal quotations omitted). “A motion for a new trial falls within a lower standard of review than does that of a judgment notwithstanding the verdict or a directed verdict. A motion for a new trial simply challenges the weight of the evidence. [This Court] will reverse the lower court’s denial of a motion for a new trial only if, by doing so, the court abused its discretion.” Daniels v. State, 107 So.3d 961, 963 (¶¶ 10-12) (Miss.2013) (citation omitted).

¶ 10. Here, the record shows that McRoy, the victim, identified Haywood as her shooter in a photo lineup prior to trial, and another eyewitness, Rash, also identified Haywood at trial as the person who shot McRoy. McRoy further testified that she “knew exactly who shot [her]” and never wavered in her testimony that Haywood shot her.

¶ 11. Haywood asserts that the State presented conflicting testimony and argues that “the State used three primary eyewitnesses without the benefit of any physical evidence to support its claim” that Haywood committed aggravated assault. However, the jury possesses the responsibility of balancing the credibility of witnesses and determining the amount of weight to give their testimonies. Carey, 80 So.3d at 135 (¶ 11). Furthermore, we acknowledge that “the absence of physical evidence does not negate a conviction where there is testimonial evidence.” Williams v. State, 879 So.2d 1126, 1128 (¶ 5) (Miss.Ct.App.2004) (citation omitted).

¶ 12. In reviewing the record, we find that sufficient evidence existed to support the guilty verdict. Accordingly, we find that this issue is without merit.

¶ 13. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS, WITH TEN YEARS SUSPENDED AND TEN YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A $2,500 FINE, $500 TO THE CRIME VICTIMS’ COMPENSATION FUND, AND $70 IN RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, PJJ, BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . See Daniels, 107 So.3d at 963 (¶¶ 10-12).


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    EATON CORPORATION and Old Republic Insurance Company, Appellants v. Bobby BROWN, Appellee.
    No. 2012-WC-00990-COA.
    Court of Appeals of Mississippi.
    June 11, 2013.
    Rehearing Denied Nov. 12, 2013.
    Certiorari Denied Jan. 30, 2014.

      M. Reed Martz, attorney for appellant.
    Roger K. Doolittle, Jackson, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Eaton Corporation and Old Republic Insurance Company, the employer and carrier (collectively “Eaton”), appeal the decision of the Mississippi Workers’ Compensation Commission that awarded benefits to Bobby Brown.

FACTS

¶ 2. On April 10, 2007, Brown injured his left shoulder and cervical spine in a com-pensable work accident that occurred when he was lifting a bucket of lapping compound. At the time of his injury, Brown was fifty-two years old and was employed in the finishing cell operating a small spinning lathe. Following his injury, Brown continued to work for Eaton until August 6, 2007, at which point he first began losing time from work.

¶ 3. Dr. Michael Dulske treated Brown. Brown underwent a left-shoulder arthros-copy with repair of labral tear, decompression, distal clavicle excision, and rotator cuff repair on August 28, 2007, and a capsular release and biceps tenotomy on March 11, 2008.

¶ 4. On November 5, 2007, Brown commenced a workers’ compensation action when he filed a petition to controvert. Brown alleged that he had sustained a left-shoulder injury.

¶ 5. On April 27, 2009, Dr. Dulske placed Brown at maximum medical improvement (MMI) for the left shoulder.

¶ 6. On May 1, 2009, Brown filed an amended petition to controvert to add a claim for injury to his cervical spine. The spine injury was initially denied. After the review of additional medical evidence, the spine injury was admitted to be a compensable injury.

¶7. On October 12, 2009, Dr. Dulske assigned a twenty percent impairment to the left upper extremity and stated that Brown was incapable of sedentary work on a sustained and full-time basis.

¶ 8. On August 10, 2009, Brown underwent a C6-7 anterior cervical diskectomy and fusion by Dr. Eric Amundson. Dr. Amundson last saw Brown on December 1, 2009, at which time he sent Brown for a cervical MRI to confirm the efficacy of the surgical procedure. Pending the results of the MRI, Dr. Amundson stated Brown should be evaluated by a physiatrist and undergo a functional capacity evaluation (FCE) to set permanent work restrictions and an impairment rating. Unless the MRI was found to be problematic, Dr. Amundson had completed his treatment of Brown.

¶ 9. The cervical MRI was performed on December 21, 2009. It was satisfactory, so Dr. Amundson referred Brown for a FCE on January 21, 2010. Brown failed to attend the scheduled FCE. Brown complained that his mileage was not prepaid. Brown admitted that the following day he was observed on surveillance footage driving his truck around town.

¶ 10. On January 14, 2010, Brown submitted an application for a lump-sum payment of permanent partial disability benefits, pursuant to Mississippi Code Annotated section 71-337(10) and Mississippi Workers’ Compensation Commission Procedural Rule 13. The Commission entered an order, on February 22, 2010, that authorized the lump-sum payment. Eaton was ordered to pay forty weeks of permanent partial disability benefits at $387.68 per week, beginning on January 21, 2010.

¶ 11. On February 22, 2010, the Commission entered an order that authorized the lump-sum payment and directed Eaton to pay forty weeks of permanent partial disability benefits at $387.68 per week from January 21, 2010, to completion.

¶ 12. Brown attended an FCE on March 9-10, 2010. Before this FCE, Brown got an infection in his toenail, and the doctor removed it. Nevertheless, Brown went to the FCE and completed the first part of the evaluation. His foot caused him discomfort, and he had to stop the evaluation. He showed his foot to the therapist, and he was sent home. Subsequently, he was hospitalized and had surgery.

¶ 13. On April 14, 2010, Brown filed a second amended petition to controvert and alleged an injury to his foot as the result of an aggravation of a preexisting foot injury.

¶ 14. Brown also missed his appointment that Dr. Amundson had scheduled with the physiatrist. Brown was to be evaluated by Dr. David Collipp on May 6, 2010. Brown appeared for the appointment with his attorney, but they left without being seen by the physician.

¶ 15. On April 15, 2010, Brown filed a motion to compel temporary total disability payments. On May 10, 2010 the administrative judge (AJ) granted Brown’s motion and compelled Eaton to pay temporary total disability benefits as of March 12, 2010.

¶ 16. On May 12, 2010, Dr. William Geissler, an orthopaedic surgeon at University Medical Center, examined Brown. His evaluation was based on the history and physical examination of Brown, medical records of Dr. Dulske, Dr. Geissler’s previous independent medical exam (IME) for Brown’s long-term disability provider, the FCE, and surveillance video. Dr. Geissler opined that Brown could sit or stand for eight hours. He could also walk. Brown could easily elevate his arm to ninety degrees. Brown can lift from the floor to his waist ten pounds and from his waist to eye level five pounds. He can front carry fifteen pounds, right carry twenty pounds, and left carry ten pounds.

¶ 17. Dr. Geissler determined that Brown would be restricted from overhead lifting but would have no restriction in his lower extremity, in terms of his ability to stand or walk for prolonged periods of time. However, Dr. Geissler noted that he would defer to Dr. Amundson’s opinion as to whether there would be any restrictions to Brown’s lower extremity because of his cervical spine.

¶ 18. Eaton appealed the AJ’s May 10, 2010 order to the Commission. On November 19, 2010, the Commission vacated the order and remanded the matter for further proceedings.

¶ 19. On October 12, 2011, the AJ entered an order that found Brown was permanently totally disabled. The AJ concluded that, although no physician specifically said Brown has reached MMI, it appeared Brown had reached a plateau in medical treatment by the time of the FCE on March 9-10, 2010. The AJ also ordered sanctions against Eaton, in the amount of $1,000 for the attorney’s fees and expenses.

¶ 20. On October 24, 2011, Eaton appealed the AJ’s order. On May 2, 2012, the Commission entered an order that affirmed the award of permanent total disability benefits and reversed the award of sanctions. The Commission clarified that a finding of permanent total disability could be based entirely on Brown’s scheduled-member injury alone without regard to any restrictions related to his cervical injury. The Commission also concluded that because it found that permanent total disability was supported by substantial evidence and because the AJ had awarded permanent total disability benefits from the date of Brown’s injury, Eaton’s argument about the date of MMI was moot.

¶ 21. Brown’s employment was terminated because he had been on disability for twelve months and had no ability to return to work. Eaton offered Brown a scanner position, which Dr. Dulske said he could not perform. As of January 21, 2010, Brown had no outstanding job offer other than the scanning job.

¶22. Brown searched for a job and produced a log that documented his efforts. The log indicated he began looking for employment in May 2011. He applied at nine places for various positions. He told the potential employers of his limitations, and they did not offer him a job.

STANDARD OF REVIEW

¶ 23. The standard of review for a workers’ compensation appeal is well established. This Court will not disturb the Commission’s decision unless it was “not supported by substantial evidence.” Short v. Wilson Meat House, LLC, 36 So.3d 1247, 1250 (¶ 17) (Miss.2010). The supreme court has explained the “substantial-evidence standard”:

Review is limited to a determination of whether or not the decision of the [Cjommission is supported by substantial evidence. If so, the decision of the [Cjommission should be upheld. The [appellate court] acts as a court of review and is prohibited from hearing evidence or otherwise evaluating evidence and determining facts.

Id. at 1250-51 (¶ 18) (quoting Delta CMI v. Speck, 586 So.2d 768, 772-73 (Miss.1991)). The supreme court has further defined substantial evidence:

[Substantial evidence means something more than a “mere scintilla” of evidence, and that it does not rise to the level of a preponderance of the evidence. It may be said that it means such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Substantial evidence means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred.

Short, 36 So.3d at 1251 (¶ 19) (quotation marks omitted) (quoting Speck, 586 So.2d at 773).

¶ 24. Our standard of review in workers’ compensation cases is highly deferential to the Commission’s decision. Id. at (¶ 23). Because the Commission is the fact-finder and also the judge of witness credibility, we cannot reweigh the evidence. Id. Appellate courts are not “empowered to determine where the preponderance of the evidence lies when the evidence is conflicting.” Id. This Court will review questions of law de novo. Id.

ANALYSIS

¶ 25. Eaton’s brief identified six issues for review. The argument section of Eaton’s brief, however, is divided into seven or more separate arguments. The arguments are not numbered, and they do not specifically reference the issues presented for review. To ensure that this Court addresses all of the the issues presented, we encourage the appellant to coordinate the statement of issues, M.R.A.P. 28(a)(3), with the argument, M.R.A.P. 28(a)(6), in each brief. Likewise, the appellee would be wise to respond with a similar coordination of issues to argument. Here, based on the summary of the argument and the headings, used in Eaton’s brief, we have determined that Eaton has presented two main issues with several related arguments under each issue.

I. The Commission erred in finding total disability.

¶ 26. As to this issue, Eaton argues that the Commission erred in determining that Brown met his burden to demonstrate permanent total disability. Since the award was rendered under Mississippi Code Annotated section 71-3-17(a) (Supp. 2012) rather than the scheduled-member provisions found in section 71-3-17(e)(l), Brown was held to the “most rigorous” test for disability, which requires convincing medical proof of a total disability and a legitimate job search for suitable employment. Brown’s paltry, belated effort to find employment in positions plainly outside his restrictions is not a suitable basis on which to affirm the award of permanent total disability. Likewise, the Commission’s total neglect of the more recent, more comprehensive, and more reliable physician and therapist opinions on Brown’s condition and reliance only on the obsolete, incomplete picture provided by the doctor in the worst position to comment on Brown’s permanent disability was error. The Commission also erred by countenancing Brown’s unreasonable refusal to participate in his medical treatment by skipping the FCE and physiatrist appointments recommended by Dr. Amundson.

A. The Commission erred in not considering contradicting information.

¶27. Eaton argues that the Commission cited only Dr. Dulske’s outdated April 27, 2009, opinion to support its decision. The Commission did not acknowledge that Dr. Dulske’s opinion was contradicted by a volume of more current medical information, including the opinion of Dr. Geissler and the March 2010 FCE. The Commission did not discuss the surveillance video that demonstrated that Brown was clearly capable of lifting more than one pound with his left upper extremity. The Commission also omitted any reference to the Brown’s testimony that he felt himself employable and his lack of diligence in the job search. Eaton concludes that because the Commission’s award is unsupported by substantial medical evidence of permanent total disability, Brown’s award should be limited to the scheduled member.

¶ 28. Under this heading, Eaton cites no legal authority and provides no specific argument as to how the Commission was in error for not considering contradicting information. The Commission determined that Brown was entitled to permanent total disability benefits based on his scheduled-member injury. The Commission cited Dr. Dulske’s opinion that Brown was not capable of performing even sedentary duties on a sustained and full-time basis. This Court has said “[i]t is not within the realm of a reviewing court’s authority to re-weigh the evidence to determine whether the preponderance of evidence might favor a result contrary to the Commission’s determination. So long as the record contains credible evidence which, if believed, would support the Commission’s determination, we must affirm.” McCarty Farms, Inc. v. Banks, 773 So.2d 380, 387 (¶ 29) (Miss.Ct.App.2000) (internal citation and quotation marks omitted). We do not find the Commission erred by not considering contradicting information.

B. Brawn proved scheduled-member disability only; no medical proof of disability ,attributable to Brown’s cervical condition was provided.

¶ 29. As to this issue, Eaton argues that the Legislature has arbitrarily set out a schedule of maximum benefits payable for injuries to certain enumerated body parts. Miss.Code Ann. § 71-3-17(c); McCarty Farms, 773 So.2d at 386 (¶ 25). In the case of an arm/upper extremity injury, the Legislature has declared an employee is entitled to- up to 200 weeks of compensation absent a determination that the scheduled-member disability has resulted in a total loss of earning capacity. Miss.Code Ann. § 71 —3—17(c)(1); Smith v. Jackson, 607 So.2d 1119, 1128 (Miss.1992). In scheduled-member claims, “no account is taken as to the claimant’s loss of wage earning capacity.” McCarty Farms, 773 So.2d at 387 (¶ 32). However, when the Commission seeks to go beyond the scheduled member benefits, as it did in this case, the Commission must then treat the claim as an injury to the body as a whole and apply the “most rigorous test” for loss of wage-earning capacity. John R. Bradley & Linda A. Thompson, Mississippi Workers’ Compensation § 5:48 (2011); see also Smith, 607 So.2d at 1128. In such a situation, Brown must meet all the criteria necessary to establish a complete and total loss of wage-earning ability; otherwise the award should be limited to the scheduled member.

¶ 30. Eaton claims that the evaluation for disability stemming from an injury to Brown’s arm, as a scheduled member, differs from the evaluation for an injury to the body as a whole. Bradley & Thompson, at §§ 5:2-5:3. In either category, proof of disability “must be supported by medical findings.” Miss.Code Ann. § 71-3 — 3(i) (Rev.2011). Eaton then contends that there is a total absence of any medical evidence of “disability” due to the cervical injury, and the Commission relied on the outdated, incomplete opinion of Dr. Dulske for support of the permanent total disability award.

¶ 31. Under this heading, Eaton simply cites legal principles but provides no specific argument as to how the Commission was in error. Eaton concedes that the Commission relied upon Dr. Dulske’s opinion and merely argues that it was “outdated” and “incomplete.” As stated in the previous section, “ ‘[i]t is not within the realm of a reviewing court’s authority to re-weigh the evidence to determine whether the preponderance of evidence might favor a result contrary to the Commission’s determination.’ So long as the record contains credible evidence which, if believed, would support the Commission’s determination, we must affirm.” McCarty Farms, 778 So.2d at 387 (¶ 29) (internal citation and quotation marks omitted). We do not find the Commission erred for the reason set forth under this section of Eaton’s brief.

C. A diligent job search is required to support the award; since it is absent, permanent total disability is precluded.

¶ 32. Under this heading, Eaton argues that Brown’s job search was not diligent, and he did not satisfy the test for permanent total disability. Brown had to “make a reasonable effort to seek employment in either a similar job or something within their limitations.” Cuevas v. Copa Casino, 828 So.2d 851, 858 (¶ 21) (Miss.Ct.App.2002).

¶ 33. In Merit Distribution Services, Inc. v. Hudson, 883 So.2d 134, 137 (¶ 6) (Miss.Ct.App.2004), the employer claimed that the claimant had made no real effort to find a job within her limitations. The claimant, a truck driver, applied for work at five companies. Id. at (¶ 7). She only applied for a trucking position. Id. Also, some of the companies claimed she did not apply for a position with them. Id. The Commission said the conflicting evidence weighed in her favor. Id. This Court found there was evidence she had attempted to find subsequent employment. Id. Thus, there was no error. Id.

¶ 34. This case presents facts similar to Hudson. There was evidence that Brown applied for various jobs at different places. Once the potential employers learned of Brown’s disability, however, he was not hired. Eaton argues that Brown testified that he believed he was employable but did not care if he returned to work. Brown cites Eaton’s human resources manager’s testimony that Eaton had concluded that Brown could not return to work. As in Hudson, the Commission here was presented with evidence that Brown did in fact unsuccessfully seek employment. Hence, we cannot conclude that the Commission’s decision was not supported by substantial evidence. Therefore, we find no error as to this issue.

D. The Commission did not properly consider the opinion of Dr. Geissler, the FCE, or the skipped physiatrist evaluation.

¶ 35. Under this heading, Eaton argues that the opinion of Dr. Dulske, which the Commission relied upon, was not the most reliable opinion available. Thus, Eaton claims that Commission’s exclusive reliance upon Dr. Dulske’s obsolete opinion was error.

¶ 36. Eaton cites Daniels v. Peco Foods of Mississippi, Inc., 980 So.2d 360, 365 (¶ 16) (Miss.Ct.App.2008). There, Daniels argued that her regular treating physician’s opinion carried greater weight than other doctors when resolving conflicts of opinion. Id. The Commission’s decision to reject the opinion of the claimant-selected physician was affirmed because the Commission “provided clear reasons” why it rejected one opinion in favor of the other. Id.

¶ 87. Here, Eaton claims that the Commission did not make any attempt to discuss the differences in the opinions of Dr. Dulske or Dr. Geissler, nor did it make a finding as to which was more credible. Rather, the Commission simply relied on Dr. Dulske’s status as the “treating specialist.” In Manning v. Sunbeam-Oster Household Products, 979 So.2d 786, 741 (¶ 17) (Miss.Ct.App.2008), this Court “re-jeet[ed] this distinction between treating and non-treating physicians.”

¶ 38. Eaton argues that Dr. Dulske last evaluated Brown on April 27, 2009. Dr. Dulske did not evaluate Brown after the additional treatment for his cervical-spine condition. He did not have the benefit of the March 2010 FCE. He did not review the records of other physicians. He could not know what additional improvement Brown experienced with additional treatment and recovery time. Dr. Dulske did not review the surveillance footage of Brown “actively raising his arm easily to 90 degrees without hesitation,” exhibiting “active abduction of 90 degrees,” or using his left upper extremity as a helping hand during recreational activities. Dr. Dulske knew only what Brown experienced more than two years before the matter went to hearing. By contrast, Dr. Geissler was the last physician to evaluate Brown. Dr. Geissler had the benefit of the records from both Dr. Dulske and Dr. Amundson, his summary of which covered three single-spaced pages. Dr. Geissler reviewed the surveillance footage previously discussed. Dr. Geissler spent almost an entire single spaced page discussing Brown’s efforts on the FCE, which noted “several ... inconsistencies” and that “[s]elf[-]limiting behavior resulted in the inability to identify maximum work abilities.” Dr. Geissler even had the benefit of his own earlier evaluation of Brown. Dr. Geissler saw Brown for the primary purpose of evaluating Brown’s work ability and examined a “number of parameters” in reaching his conclusion. His report spanned six pages, whereas the narrative records of Dr. Dulske’s treatment were not even entered into evidence. The AJ had to look to Dr. Geissler’s summary to determine what treatment Dr. Dulske offered.

¶ 39. Ordinarily, this Court will defer to the factual findings of the Commission regarding which expert is more credible if those opinions are supported by substantial evidence. See Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988). However, where the finding is clearly erroneous and contrary to the overwhelming weight of the evidence, it must be reversed. Id. “Findings may be determined clearly erroneous, however, if, on the entire record, the reviewing court is left with a firm and definite conviction that a mistake has been made by the Commission in its findings of fact.” Delta Drilling Co. v. Cannette, 489 So.2d 1378, 1381 (Miss.1986).

¶40. Eaton is correct that Mississippi law does not require deference be given to the claimant’s treating physician. Manning v. Sunbeam-Oster Household Prods., 979 So.2d 736, 743 (¶ 25) (Miss.Ct.App.2008). However, that does not mean the Commission is precluded from relying on the treating physician’s opinion. When the Commission has been presented with the testimony of two doctors and after weighing the evidence found one to be more persuasive, there is no error. See Daniels, 980 So.2d at 365 (¶ 16). As the trier of fact, it is the Commission’s job to evaluate and weigh the evidence. Id.

¶ 41. This Court does not make credibility determinations. As long as the Commission’s determination was supported by substantial evidence, it will not be disturbed. The Commission relied on Dr. Dulske’s opinion. Dr. Dulske assigned a twenty percent impairment to the left upper extremity and opined that Brown could not perform sedentary work on a sustained and full-time basis. Hence, we find evidence to support the Commission’s decision, and we 'are not “left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the Act.” We find no merit to this issue.

E. Brown believes he is employable.

¶ 42. Under this heading, Eaton argues that when asked whether he feels himself genuinely employable, Brown responded that he is. Eaton contends that since Brown feels himself capable of working, and only applied at positions which were not suitable for him, the Commission erred in finding he is incapable of any type of work.

¶ 43. This issue was discussed in section C above. We note, however, that Eaton cites no authority for the argument under this heading. This Court has held that “[a] party’s failure to cite authority in support of an argument precludes consideration of the issue on appeal.” Griffith v. Griffith, 997 So.2d 218, 225 (¶ 26) (Miss.Ct.App.2008) (citing Boutwell v. Boutwell, 829 So.2d 1216, 1223 (¶ 29) (Miss.2002)). Therefore, we find this issue has no merit.

II. The Commission erred by awarding disability benefits and penalties when Brown was not disabled.

¶ 44. Eaton argues that the Commission’s calculation of benefits was in error for several reasons. The Commission held that Brown was entitled to permanent total disability benefits at the statutory-maximum rate beginning the date of injury and further held that Eaton was liable for a ten percent penalty and eight percent interest on any installments not timely paid. This award is despite the fact that Brown was not “disabled” until nearly four months after his injury.

A. Brown did not Become disabled until August 2007; awarding benefits from April was error.

¶ 45. Eaton claims that Brown was not entitled to benefits from the date of injury (April 10, 2007) but instead was due benefits from the date of his “disability” (August 6, 2007), the date he began missing work. Thus, the award of benefits at $387.68 per week for the seventeen weeks from April 10, 2007, to August 6, 2007, improperly penalized Eaton for not paying benefits that clearly were not due. This error resulted in the payment of at least $10,342.71.86 in benefits not owed.

¶ 46. “Disability” is defined as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.” Miss.Code Ann. § 71 — 3—3(i). Eaton claims that Brown was not disabled until August 6, 2007, when be began to miss work.

¶ 47. Brown claims that the Commission fashioned a method of harmonizing the lump-sum order with the multiple periods of disability, multiple MMI dates for the individual injuries, and multiple permanent impairment ratings arising out of the multiple injuries. Brown claims that this issue is moot because Eaton was given a credit for payments previously made.

¶ 48. Having reviewed the calculation of the lump-sum award, we do not find that the credit has been given to Eaton. We agree that the Commission erred when it declared Brown’s permanent total disability benefits related back to the date of injury. The evidence establishes that Brown was not disabled on the date of injury because he was able to continue to work until August.

¶ 49. When a claimant is entitled to permanent total disability benefits, his entire disability relates back to the beginning of his rating of temporary disability. Morgan v. J.H. Campbell Constr. Co., 229 Miss. 289, 299, 90 So.2d 663, 667-668 (1956). Furthermore, it would be illogical to conclude Brown was entitled to disability benefits from the date of his injury, as at that time he did not meet the definition of disability. The record established that Brown was injured on April 10, 2007. However, he was able to work and continue to earn wages until August 6, 2007. As a result, Brown was not disabled until August 6, 2007. The award of permanent total disability benefits should relate back to August 6, 2007. As to this issue, we reverse the judgment of the Commission and remand for the Commission to calculate any appropriate adjustments in benefits, penalties, or interest.

B. A correct MMI date is vital to properly calculate the amount of benefits due.

¶ 50. Eaton argues that the Commission erred when it declared that the issue of whether the date of MMI was correct was moot because it found Brown was entitled to permanent total disability benefits.

¶ 51. Mississippi Code Annotated Section 71-3-17(a) provides that compensation for permanent total disability shall be paid as follows: “[S]ixty-six and two-thirds percent (66-2/3%) of the average weekly wages of the injured employee, subject to the maximum limitations as to weekly benefits as set up in this chapter, ... not to exceed four hundred fifty (450) weeks....” Based on this provision, the date of MMI is not necessary for a computation of benefits.

¶ 52. We note, however, that to the extent that MMI may be relevant to determine the amount of penalties and interest owed, issues that we have remanded to the Commission, the Commission may certainly consider MMI to calculate the proper adjustment of penalties or interest owed. Other than as necessary to make the appropriate adjustment on remand, we find no merit to this issue.

¶ 53. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANTS AND THE APPELLEE.

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


author: MAXWELL, J„

text:
    Saheed DAVIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01549-COA.
    Court of Appeals of Mississippi.
    Aug. 13, 2013.
    Rehearing Denied Nov. 19, 2013.
    Certiorari Denied Jan. 30, 2014.

      Jane E. Tucker, Jackson, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J„

for the Court:

¶ 1. Saheed Davis shot and killed Maurice Warner at a family gathering on Christmas Day. Davis was convicted of murder and sentenced to life imprisonment. On appeal, he argues flaws in the jury instructions, hearsay testimony from an investigator, and his inability to introduce evidence of the victim’s bad character warrant reversal. Davis also challenges the sufficiency and weight of the evidence supporting his conviction and claims his attorney was constitutionally ineffective. After review, we affirm his conviction and sentence.

Background

¶ 2. On Christmas Day 2008, Davis and his fiancée, Yolanda Wooten, joined a large gathering of Yolanda’s family members at the Wooten family home in Jackson, Mississippi. Yolanda’s sister, Latoya, and her husband, Maurice, were among those present. At some point that day, Davis and Maurice — who undisputedly had strong disdain for one another — exchanged words in front of several family members. When Davis and Yolanda later stepped outside of the house, Maurice followed them.

¶ 3. According to Yolanda, Davis asked Maurice what he had said to him earlier that day. And Maurice clarified for Davis that he had called him “a punk a*s, f*ggot a*s b*tch.” When Davis asked, “What?” Maurice said, “N*gger, you heard me.” Maurice then swung and hit Davis in the neck. After the tussle was broken up, Maurice headed for his car, and Davis jumped the fence and ran to his vehicle. Soon after, Davis returned armed with a .40-caliber pistol.

¶ 4. According to multiple witnesses, Davis then shot Maurice. One of the two initial bullets struck Maurice in the head; the other hit his throat. Maurice, who was unarmed, collapsed in the street. And while Maurice was lying face down on the concrete, Davis stood over his body and shot him eight more times — twice in the right shoulder and six times in the back. An ambulance transported Maurice to University Medical Center where he died from the gunshot wounds.

¶ 5. Davis fled and eluded authorities until October 2010, when he was caught by U.S. Marshals in Texas and returned to Mississippi. Davis was indicted for deliberate-design murder with a handgun in violation of Mississippi Code Annotated section 97-3-19(l)(a) (Rev.2006). Davis pursued a self-defense theory at trial, but the jury rejected that the shooting was justified. The jury found Davis guilty of murder, and he was sentenced to life imprisonment. He now appeals.

Discussion

¶ 6. On appeal, Davis argues the trial judge erred in (1) not sua sponte crafting a separate heat-of-passion manslaughter instruction, (2) instructing the jury that if it deemed Davis the aggressor, it could not find he acted in self-defense, (3) allowing hearsay testimony, and (4) preventing witnesses from testifying about alleged specific instances of Maurice’s bad conduct toward Davis. Davis also challenges (5) the sufficiency and weight of the evidence and argues (6) his defense counsel was constitutionally ineffective.

I. Jury Instructions

A. Heat-of-Passion Instruction

¶ 7. Davis’s actual trial strategy is somewhat incongruent with his more recently crafted appellate argument challenging the lack of instruction on heat-of-passion manslaughter. At trial Davis’s attorney stringently argued that the shooting was in self-defense — and was not murder or manslaughter. But on appeal, he claims that even though he neither requested a heat-of-passion manslaughter instruction nor proposed one to the trial judge, the judge erred in not sua sponte fashioning a separate substantive instruction on this lesser offense. While this argument is waived, we find it is further complicated, as discussed below, by the fact that the State did indeed offer an instruction defining heat-of-passion, to which Davis did not object.

(1)Waiver

¶ 8. Our first inquiry involves Davis’s waiver of this issue. Our supreme court has held that if a defendant fails to “tender a heat-of-passion-manslaughter jury instruction to the trial court[,] ... he is procedurally barred from arguing on appeal that the jury should have been instructed on heat-of-passion manslaughter.” Neal v. State, 15 So.3d 388, 408 (¶ 51) (Miss.2009). And here Davis did not ask for, much less tender, a separate proposed heat-of-passion manslaughter instruction. Thus, he is barred from first raising this issue on appeal.

(2)Plain Error

¶ 9. Second, because Davis forfeited this issue by not urging it at trial, he proceeds solely under the more stringent plain-error doctrine. Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Under this standard, we will generally only exercise our discretion to review and correct a clear or obvious error if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. at 135, 129 S.Ct. 1423. So our review focuses on whether there was a manifest injustice.

a. Manslaughter

¶ 10. Considering the applicable legal principles and the relevant instructions given, we note that manslaughter is generally defined as “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense[.]” Miss. Code Ann. § 97-3-35 (Rev.2006). There are several distinct variants of this lesser-included offense of murder, including both “imperfect self-defense[,]” which our supreme court has recognized reduces “an intentional killing ... [to] manslaughter if done without malice but under a bona fide (but unfounded) belief that it was necessary to prevent great bodily harm[,]” Moore v. State, 859 So.2d 379, 383 (¶ 9) (Miss.2003) (quoting Wade v. State, 748 So.2d 771, 775 (¶ 12) (Miss.1999)), and heat-of-passion manslaughter. The jury here was instructed on both.

b. Instruction S-8

¶ 11. At trial, the State offered an imperfect self-defense instruction, S-8, without objection. This instruction advised the jury it could consider the lesser offense of manslaughter if it found that the State had failed to prove all the elements of murder, and that Davis killed Maurice under an “actual bona fide[ ] belief that such a killing [was] necessary in order to protect himself from great bodily harm or death, but that such belief [was] not reasonable under the circumstances.”

c. Instruction S-7

¶ 12. The trial judge also granted the State Instruction S-7 — without objection by Davis — which defined “heat of passion” as follows:

The court instructs the jury that “heat of passion” is defined as a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.
This passion should be an emotion brought about by some insult, provocation, or injury, which would produce in the minds of ordinary men “the highest degree of exasperation.” We have stated that words alone and disagreements among people are not enough to invoke the passion required for this defense. Mere words, no matter how provocative, are insufficient to reduce an intentional and unjustifiable homicide from murder to manslaughter.

(Emphasis added). This instruction tracks the definition and description of heat-of-passion manslaughter from Phillips v. State, 794 So.2d 1034, 1037 (¶9) (Miss.2001). And the form-of-the-verdict instruction, S-5A, instructed that if the jury found Davis not guilty of murder, it should continue deliberations to determine if he was guilty of manslaughter.

¶ 13. When reviewing jury instructions, we read the instructions “as a whole to determine whether the jury was fully and fairly instructed according to the applicable law.” Clark v. State, 40 So.3d 531, 544 (¶ 36) (Miss.2010) (citing Davis v. State, 18 So.3d 842, 847 (¶ 14) (Miss.2009)). As our supreme court has emphasized, “if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.” Id. (quoting Davis, 18 So.3d at 847 (¶ 14)).

¶ 14. After fairly viewing Instructions S-7, S-8, and S-5A, in combination with one another, we find these instructions, as a whole, adequately announce the applicable rule of law that a killing in the heat of passion “will reduce a homicide from the grade of murder to that of manslaughter.” So not only is Davis’s challenge barred, but we find no instructional error and certainly no manifest injustice affecting the fairness, integrity, or public reputation of his trial.

B. Self-Defense Instruction

¶ 15. Davis pursued a self-defense theory and was given, at his request, an instruction, directing the jury to find for him if it deemed the killing justified. But he objected to the judge’s giving of a separate instruction, S-6, which advised the jury: “[I]f the defendant is the aggressor, the defense of self[-]defense is not available to him even where he must resort to defending himself against an unexpectedly aggressive intended victim.” On appeal, Davis argues the trial judge erred in giving Instruction S-6, since as Davis sees it, there was no evidence he was the aggressor.

¶ 16. Our review of this issue requires that we ask whether the challenged “jury instruction correctly stated the law and was supported by the evidence.” Bradford v. State, 102 So.3d 312, 317 (¶ 22) (Miss.Ct.App.2012) (citing Utz v. Running & Rolling Trucking, Inc., 32 So.3d 450, 474 (¶ 78) (Miss.2010)). In addressing this two-part inquiry, we begin by noting that “Mississippi adheres to the common law rule that an aggressor is precluded from pleading self-defense.” Simmons v. State, 805 So.2d 452, 473 (¶ 30) (Miss.2001) (quoting Layne v. State, 542 So.2d 237, 244 (Miss.1989)). Though Yolanda was the only witness to the entire exchange and testified Maurice’s insults and initial fight with Davis were unprovoked, our law is clear that “one who leaves an altercation, arms himself, and returns with the intent to and does use his weapon on the other party cannot claim self-defense.” Griffin v. State, 495 So.2d 1352, 1354 (Miss.1986) (citing Cooley v. State, 391 So.2d 614, 617 (Miss.1980)); see also Skinner v. State, 751 So.2d 1060, 1074 (¶ 48) (Miss.Ct.App.1999).

¶ 17. By almost all accounts, including Yolanda’s, Davis left the immediate area of the threat, jumped a fence, went to his car, and returned armed with a handgun. He then opened fire on Maurice, who was unarmed, shooting him in the head and neck. Immediately after, Davis hovered over the face-down man, and emptied his pistol into his back and shoulder. After review, we find the law was correctly stated and that the evidence was more than adequate to support Instruction S-6. Thus, the trial judge did not abuse his discretion in giving it.

II. Hearsay Testimony

¶ 18. Davis also suggests the State elicited impermissible hearsay, which violated his Sixth Amendment confrontation right, when the judge allowed an officer to testify about his interview of Yolanda at the scene immediately after the shooting.

¶ 19. In response to the State’s question about what information Officer Michael Shorter had obtained from Yolanda, Officer Shorter testified, over defense counsel’s objection:

At the time when I was speaking to [Yolanda], she advised that the suspect and the victim were in an altercation. The victim had been provoking the suspect all day or what not, saying little gestures to him. She didn’t hear what he said, but she said that he was provoking him all day. They had, like, a Christmas gathering. And that day, also, the victim had — had assaulted him, I believe, by slapping him [on] the face or whatever, and that’s when supposedly the suspect went out the house and got a — got a gun.

The trial judge found Officer Shorter’s recitation was admissible to show the investigative steps the officer had taken shortly after the shooting — not for the truth of the matter asserted. Though Davis did not invoke his confrontation right at trial, he does on appeal. So we review his unpre-served constitutional claim for plain error.

A. Confrontation Clause

¶ 20. The Sixth Amendment of the United States Constitution, as incorporated by the Fourteenth Amendment, guarantees criminal defendants the right to confront the witnesses against them. U.S. Const. amends. VI, XIV; see also Miss. Const. art. 3 § 26. Consequently, when hearsay is deemed “testimonial,” it cannot be admitted against a criminal defendant, unless the declarant is unavailable at trial and the defendant has had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

¶21. But we need not delve into the varying distinctions nor make the often difficult constitutional call of whether the challenged statement was “testimonial” or “non-testimonial” in nature. See Michigan v. Bryant, — U.S. -, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011); Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). We find such analysis unnecessary here, since Yolanda ultimately testified at Davis’s trial, subjecting herself to cross-examination.

¶ 22. The United States Supreme Court has recognized: “[T]here is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declar-ant is testifying as a witness and subject to full and effective cross-examination.” California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Or as the Court more recently put it, “the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witnesses] demeanor satisfy the constitutional requirements.” United States v. Owens, 484 U.S. 554, 560, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988) (citing Green, 399 U.S. at 158-161, 90 S.Ct. 1930).

¶ 23. Because Yolanda testified and all of these traditional protections were present, we find Davis’s confrontation rights were not violated by Officer Shorter’s recitation of Yolanda’s statement.

B. Statements Made During Police Investigation

¶24. Still, there is the hearsay question, which Davis preserved. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). While hearsay is generally inadmissible, our state supreme court has created an exception to the hearsay rule for statements made to police during the course of their investigations. Rubenstein v. State, 941 So.2d 735, 764 (¶ 111) (Miss.2006). Relying on this rationale, this court has similarly held that “out-of-court statements made to the police during the course of their investigations [are admissible].” Gray v. State, 931 So.2d 627, 631 (¶ 14) (Miss.Ct.App.2006) (citing Swindle v. State, 502 So.2d 652, 658 (Miss.1987)). We review the admission of such evidence for an abuse of discretion. Lynch v. State, 877 So.2d 1254, 1281 (¶ 86) (Miss.2004).

¶ 25. Officer Shorter testified that after securing the crime scene, he began interviewing witnesses. Through his conversation with Yolanda, Officer Shorter identified Davis as a suspect. He also learned Maurice had been provoking Davis before the shooting. From this, we find it was within the trial court’s discretion to allow Officer Shorter’s recitation of Yolanda’s statement for a purpose other than to prove the truth of the matter asserted. But even if it was error to do so, we find most of the recitation favored Davis. And the portion that did not — the mention that he retrieved a gun — was independently established at trial through several eyewitnesses, including Yolanda, who testified and were cross-examined. Therefore, even if it was error to admit Yolanda’s purported statement through Officer Shorter, it was at most harmless.

III. Character Evidence

¶ 26. Davis also claims several of the trial judge’s evidentiary rulings prevented him from questioning witnesses about Maurice’s reputation for violence and his specific past instances of violent behavior. While this may be so, because Davis made no proffer of Maurice’s violent reputation nor made a record of the purported specific instances of his violent conduct, we do not hold the trial judge in error.

¶ 27. Mississippi Rules of Evidence 404 and 405 govern admissibility of character evidence. While Rule 404 precludes admitting character evidence to prove action in conformity therewith, it “specifically authorizes inquiry by a criminal defendant into a victim’s character.” Jackson v. State, 784 So.2d 180, 184 (¶ 23) (Miss.2001). This exception enables defendants to prove that a purported victim was the initial aggressor and that the defendant acted in self-defense. Id. at 185 (¶ 23) (citing M.R.E. 404 emt.). If Rule 404 is satisfied, opinion or reputation-based character evidence is admissible “without further restriction.” Jackson, 784 So.2d at 185 (¶ 23). However, when character evidence passes through Rule 404(a)(2), and is offered as specific instances of conduct, it is only admissible on cross-examination. Jackson, 784 So.2d at 185 (¶ 23) (citing M.R.E. 405(a)).

¶ 28. Yet where character or the trait of character is “an essential element of a charge, claim, or defense,” specific instances of conduct are admissible whether on direct or cross-examination. Id. And such past acts are admissible where a defendant alleges self-defense, as the character trait of violence is an “essential element” of the defense under Rule 405(b). Jackson, 784 So.2d at 185 (¶ 23) (citing Heidel v. State, 587 So.2d 835, 845 (Miss.1991)).

¶ 29. Here, Davis claims his self-defense theory was frustrated, pointing to three instances where he insists the judge “stymied” his attempt to delve into his long-running feud with Maurice.

A. Previous Threats by Victim

¶ 30. During Yolanda’s cross-examination, the State objected on relevancy grounds, when defense counsel asked Yolanda if she was ever present when Maurice threatened Davis. The judge allowed the question, but instructed that only recent threats would be relevant. Davis’s attorney did not take issue with the court’s ruling. Instead, he rephrased the question, prompting the following exchange:

Q: Leading up to this incident were you present or did you — in the close vicinity to this incident were you privy to any threats that Maurice may have made against [Davis]?
A: He just told me himself that he couldn’t have him around him.
Q: Who told you that?
A: Maurice Warner did.
Q: And why didn’t he want [Davis] around him?
The State: Objection, Your Honor. This is all hearsay.
The Court: I’m going to sustain that.
Defense Counsel: Okay.

There was no attempt to elicit further testimony from Yolanda to continue this line of questioning, nor was any proffer given.

¶ 31. While we generally agree that Rule 405 authorized Davis to offer specific instances of Maurice’s threats, his defense counsel did not dispute the trial court’s ruling. And more important to our review, he failed to proffer any details of the alleged prior threats Yolanda would have testified about had she been allowed to continue.

¶ 32. Our evidentiary rules clarify that error may not be predicated upon a ruling that excludes evidence unless a substantial right of the party is affected, and the substance of the. evidence was made known to the court or was apparent from the context of the questions. M.R.E. 103(a)(2). And our supreme court similarly instructs that “[w]hen testimony is not allowed at trial, a record of the proffered testimony must be made in order to preserve the point for appeal.” Metcalf v. State, 629 So.2d 558, 567 (Miss.1993) (citations omitted). Because there is no record of a proffer and the alleged prior violent instances are not clear from the question, we cannot find the trial judge abused his discretion on this evidentiary call.

B. Length of Feud Between Davis and Victim

¶ 33. Michelle Wooten, Yolanda’s mother, was also asked by defense counsel at trial if she had been aware of the feud between Davis and Maurice. She answered: “Well I had never been just told, but I had heard that there was some confrontation between the two of them.” After defense counsel then asked how long the feud had been ongoing, the judge sustained the State’s hearsay objection.

¶ 34. Again, defense counsel failed to proffer what Michelle’s testimony might have been had she been allowed to continue. See M.R.E. 103(a)(2); Metcalf, 629 So.2d at 567. And we will not reverse based on an evidentiary exclusion, when a party has not proffered “the evidence he would have offered had the court ruled otherwise.” Heidel, 587 So.2d at 844.

C. Police Officer’s Familiarity with Victim

¶ 35. The last challenged exclusion concerns the testimony of Eric Smith, an investigator with the Jackson Police Department, who testified for the State. On cross-examination, Detective Smith confirmed he had known Maurice before the shooting. When defense counsel asked how he knew Maurice, the State objected. But defense counsel withdrew the objection before the judge could rule. If the judge is not given an opportunity to err, we find it only makes sense that there can be no error. See Vickers v. State, 994 So.2d 200, 224 (¶ 92) (Miss.Ct.App.2008). So we find no merit to this challenge.

IV. Sufficiency of the Evidence

¶ 36. Davis also contests the sufficiency of the evidence. He argues that, at most, the evidence is sufficient to support manslaughter, but not murder, because he killed Maurice in the “heat of passion” after being provoked by him—an argument he did not make at trial.

¶ 37. When addressing the legal sufficiency of evidence, we consider all evidence in a light most favorable to the State. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). Credible evidence consistent with guilt must be accepted as true. We are instructed to give the State the benefit of all favorable inferences reasonably drawn from the evidence. Jones v. State, 20 So.3d 57, 64 (¶ 16) (Miss.Ct.App.2009) (citing Hughes v. State, 983 So.2d 270, 275-76 (¶¶ 10-11) (Miss.2008)). The jury resolves matters of weight and credibility. Reversal is proper when reasonable and fair-minded jurors could only find the accused not guilty. Id. Our essential duty is to determine whether from the evidence presented it would be impossible for a reasonable juror to find the defendant guilty. Ducksworth v. State, 767 So.2d 296, 301 (¶ 10) (Miss.Ct.App.2000).

¶ 38. Davis’s jury was instructed on murder- and the lesser-included offense of manslaughter. Deliberate-design murder is “[t]he killing of a human being without the authority of law by any means or in any manner ... [w]hen done with deliberate design to effect the death of the person killed[.]” Miss.Code Ann. § 97-3-19(l)(a). Manslaughter is “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense[.]” Miss.Code Ann. § 97-3-35.

¶ 39. Issues regarding whether a crime occurred in the heat of passion are resolved by the jury. The jury heard testimony that Maurice had struck Davis, so there was likely anger and rage on Davis’s part. But anger alone is insufficient to support a heat-of-passion jury instruction. See Mullen v. State, 986 So.2d 320, 323 (¶ 9) (Miss.Ct.App.2007). “[TJhere must be such circumstances as would indicate that a normal mind would be roused to the extent that reason is overthrown and that passion usurps the mind destroying judgment.” Id.

¶40. The jury obviously determined that in its view, the circumstances confronting Davis would not rouse a normal mind to the level that reason is overthrown and judgment is destroyed. Further, Davis’s attorney did not even argue during his closing argument that the killing occurred in the heat of passion — he instead pressed self-defense. Indeed, he was emphatic that “this is not a murder case. This is not a manslaughter case. This is self[-]defense.”

¶ 41. The jury heard evidence from several eyewitnesses that after the skirmish broke up, Davis leapt over a fence, headed for his ear, and returned with a semiautomatic pistol, which he used to shoot an unarmed man ten times. Viewing this evidence in the light most favorable to the State, which we must, we do not find that fair-minded jurors could only find Davis guilty of manslaughter on these facts.

V. Weight of the Evidence

¶ 42. Davis similarly contests the weight of the evidence supporting his murder conviction. When considering an objection to the weight of the evidence, we view the evidence in the light most favorable to the verdict. Bush, 895 So.2d at 844 (¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). We will not disturb a verdict unless “it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (citation omitted). In addressing this challenge, we return to the evidence just mentioned. Viewing this evidence this time in the light most favorable to the verdict, we find Davis’s murder conviction is not against the overwhelming weight of the evidence.

VI. Ineffective Assistance of Counsel

¶ 43. Davis finally argues his defense counsel was ineffective for failing to request a heat-of-passion-manslaughter instruction and not introducing Maurice’s prior bad acts.

¶44. To establish ineffective assistance of counsel, Davis must show: (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). 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. And here we see nothing to overcome this presumption. However, we typically only address the merits of an ineffective-assistance-of-counsel claim on direct appeal when “(1) the record affirmatively show[s] ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999). Neither of these requisites are present.

¶ 45. Since the record is simply not as developed as it would be in a post-conviction-relief proceeding, we deny relief on this issue without prejudice. Davis may seek post-conviction relief on this claim if he so desires.

¶ 46. We affirm.

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

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


author: JAMES, J.,

text:
    Peggy J. STURDIVANT, Appellant v. MOORE BAYOU WATER ASSOCIATION, INC. and Coahoma County, Mississippi, Appellees.
    No. 2012-CA-00717-COA.
    Court of Appeals of Mississippi.
    Aug. 13, 2013.
    Rehearing Denied Nov. 26, 2013.
    Certiorari Denied Jan. 30, 2014.

      Lawrence Maynard Magdovitz II, Clarksdale, attorney for appellant.
    Roy Jefferson Allen, Gerald H. Jacks, Mary McKay Lasker, Jamie Ferguson Jacks, Cleveland, attorneys for appellees.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. This appeal involves a complaint against a water supply company and Coa-homa County, Mississippi (Coahoma County) following the destruction of a water line to Peggy Sturdivant’s property. Sturdi-vant contests the judgment of the Coaho-ma County Circuit Court granting summary judgment in favor of Moore Bayou Water Association, Inc. (Moore Bayou) and dismissing all claims against Coahoma County. Sturdivant assigns the following errors: 1) the trial court’s grant of summary judgment was improper because genuine issues of material fact existed regarding Sturdivant’s membership with Moore Bayou, and 2) Sturdivant’s claims against Coahoma County were not properly dismissed because good cause for failure to timely serve process was shown. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Moore Bayou is a nonprofit corporation authorized by the Mississippi Public Service Commission to supply water to properties of its members within a specified service area. Some of Moore Bayou’s water lines run along Highway 61 in Coa-homa County, Mississippi. Sturdivant is the owner of Showtime, Inc., a corporate entity existing under the laws of Mississippi. Sturdivant purchased a building located on the east side of Highway 61, and began operating Showtime from that location. The property purchased by Sturdivant has been generally used for commercial purposes. On October 4, 2005, Showtime entered into a water user’s agreement with Moore Bayou, and paid a membership fee and deposit of $135.41. Thereafter, Moore Bayou began supplying water to the property. At some point, Showtime’s water account with Moore Bayou became several months delinquent, and had accrued an outstanding balance of $104.46. As a result, Showtime’s water services were cut off, and its membership with Moore Bayou was terminated. Moore Bayou issued a check to Showtime in the amount $30.95, which represented the difference between Showtime’s deposit and membership fee of $10 and its outstanding balance. The check, dated June 14, 2006, was later negotiated by Sturdivant. On July 5, 2006, the check cleared through Moore Bayou’s bank account.

¶ 3. The following year, the Mississippi Department of Transportation (MDOT), along with Coahoma County, began a highway-expansion project on Highway 61. At a board meeting held on August 14, 2007, Moore Bayou learned that its water lines had been struck several times during the course of the construction, including the water line that previously supplied water to Sturdivant’s property on Highway 61. As result of the damage, the water line to Sturdivant’s property was irreparable. After meeting with a representative from Evans Engineering to assess the damage, Moore Bayou was informed that a new water line leading to Sturdivant’s property would cost $19,688. At that time, Moore Bayou was not providing water services to any property on or near Highway 61. For this reason, Moore Bayou decided not to extend a new water line along Highway 61 due to the great expense. According to Moore Bayou, the total cost for the line, including replacement, construction, labor, and materials, would be approximately $33,204. Pursuant to a mutual agreement, Moore Bayou and Coahoma County each paid a portion of the fee to replace the damaged water lines that serviced other properties. A new line ending approximately 7,000 feet from Highway 61 was installed. As of the time this matter was before the trial court, the water line leading to Sturdivant’s property had not been replaced.

¶ 4. In August 2010, Sturdivant contacted Moore Bayou to request water service to her property. Sturdivant claims that she never received notice from Moore Bayou about the termination of her water service. According to Sturdivant, she temporarily disconnected the water service in 2006 to avoid the hazard of burst pipes or water leaks while she was away from her property. However, Moore Bayou denies this contention. Charles Veazey, treasurer for Moore Bayou, issued a letter to Sturdivant informing her that she would have to pay a membership fee and deposit and be issued a new water user’s agreement in order to restore water service to her property. Veazey also informed Stur-divant that she would have to bear the cost to have the line replaced. Attached to the letter was a itemization of the projected $33,204 for replacing the water line.

¶ 5. On September 1, 2010, Sturdivant filed a complaint for damages against Moore Bayou, Coahoma County, and MDOT. In the complaint, Sturdivant alleged that Moore Bayou was negligent in failing to install a new water line to her property and in failing to provide notice to her that the line was damaged. Also, Sturdivant alleged that Moore Bayou breached its contract with her by terminating her water service without notice. Regarding MDOT and Coahoma County, Sturdivant included an inverse-condemnation claim, arguing that the destruction of the water line during the highway-expansion project had reduced the value of her property.

¶ 6. On September 24, 2010, Sturdivant issued a notice-of-claim letter to Coahoma County. On April 19, 2011, nearly seven months after filing the complaint, Sturdi-vant served process on Coahoma County. On March 14, 2011, Moore Bayou filed a motion for summary judgment. Finding that Sturdivant had failed to present sufficient evidence to support her claims of negligence and breach of contract against Moore Bayou, the trial court granted the motion. On January 16, 2012, Coahoma County filed a motion to dismiss, arguing, among other things, that Sturdivant failed to timely effectuate service of process under Rule 4(h) of the Mississippi Rules of Civil Procedure. Finding that Sturdivant failed to show good cause for her delay, the trial court granted the motion. Aggrieved, Sturdivant now appeals.

DISCUSSION OF THE ISSUES

I. Whether the trial court’s grant of Moore Bayou’s motion for summary judgment was proper.

¶7. “The standard of review of a trial court’s grant of a summary judgment motion is de novo.” Stuckey v. The Provident Bank, 912 So.2d 859, 864 (¶ 8) (Miss.2005) (citing Miller v. Meeks, 762 So.2d 302, 304 (¶ 3) (Miss.2000)). 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). “[W]hen a motion for summary judgment is made and supported, ‘an adverse party may not rest upon the mere allegations or denials set forth in his pleadings, but his response must set forth specific facts showing that there is a genuine issue for trial.’ ” In re Estate of Laughter, 23 So.3d 1055, 1060 (¶ 17) (Miss.2009) (quoting M.R.C.P. 56(e)).

¶8. As a basis for her argument that genuine issues of material fact exist regarding both of her claims against Moore Bayou, Sturdivant maintains that at the time the water line to her property was destroyed, her membership with Moore Bayou was active, as Moore Bayou never provided her with any notice of termination of her water service. It is Stur-divant’s contention that because she was still an active member at the time the water line was destroyed, Moore Bayou had a duty to inform her of the damage and to make the necessary repairs. Moore Bayou argues that it owed Sturdivant no such duty, as Sturdivant was never a member of the water association. Our review of the record shows that, as Moore Bayou contends, Showtime, as opposed to Sturdi-vant herself, was a member of the association, as evidenced by a “Water User’s Agreement.” Moore Bayou undertook to provide water service to Showtime, not to Sturdivant. Although Sturdivant is the sole shareholder of Showtime, the record does not indicate that Sturdivant took any steps to become a successor-in-interest of the corporation, which would have given her independent standing to sue Moore Bayou for breach of contract. The general rule is that “an action to redress injuries to a corporation, whether arising in contract or in tort[,] cannot be maintained by a stockholder in his own name, but must be brought by the corporation because the action belongs to the corporation and not the individual stockholders whose rights are merely derivative.” Bruno v. Se. Servs., Inc., 385 So.2d 620, 622 (Miss.1980). This rule applies even when the claimant is the sole shareholder of the corporation. Id. (citations omitted).

¶ 9. Despite the standing issue, Sturdivant’s argument fails for a number of reasons. First, regarding Sturdivant’s breach-of-contract claim, Moore Bayou produced evidence in support of its summary-judgment motion showing that its contractual relationship with Showtime had ended long before the water line to Sturdivant’s property was damaged. As previously stated, Showtime’s account with Moore Bayou had become several months delinquent. Sturdivant maintains that she never received notice of termination of the account from Moore Bayou. However, a refund check for $30.95 was issued by Moore Bayou in 2006. This amount reflected the difference between the $135.41 water deposit and the overdue balance of $104.46. Although Sturdivant argues that the check itself was not sufficient notice of termination, the record shows that she later negotiated the check, and made no inquiry as to what the check represented. In fact, Sturdivant had no contact with Moore Bayou for over four years thereafter.

¶ 10. To rebut Moore Bayou’s summary-judgment motion, Sturdivant simply denied that the membership was terminated, and asserted that she merely disconnected the water service temporarily in order to avoid any water leaks or burst pipes while she was away from the property. Yet, Sturdivant has not presented any probative evidence to support her argument, as required by Rule 56. “Mere general allegations which do not reveal detailed and precise facts will not prevent the award of summary judgment.” Stuckey, 912 So.2d at 865 (quoting Brown v. Credit Ctr., 444 So.2d 358, 364 (Miss.1983)). “The party opposing the motion is required to bring forward significant probative evidence demonstrating the existence of the triable issue of fact.” Id. (quoting Brown, 444 So.2d at 364). Here, Sturdivant relied solely on her general allegations in an effort to avoid summary judgment. Thus, the trial court properly granted summary judgment in favor of Moore Bayou regarding the breaeh-of-con-tract claim.

¶ 11. As for the negligence claim, Sturdivant argues that Moore Bayou had a duty to provide water service to her property, and because Moore Bayou failed to replace the damaged water line, Sturdivant had suffered damages in the form of lost profits to Showtime. As pointed out by the trial court, Sturdivant has mistakenly couched her claim in terms of negligence. However, Moore Bayou’s decision to not replace the damaged water line to Sturdi-vant’s property was intentional. Sturdi-vant has not presented any evidence to show negligence on the part of Moore Bayou. Furthermore, Sturdivant has not presented evidence of any injury suffered as a result of the damage to the water line. Although she contends that Showtime’s business operations have suffered due to the lack of water supply to her property, nothing in the record supports this claim. In fact, during the hearing on the motion for summary judgment, Sturdivant’s attorney stated that Showtime was administratively dissolved by the State in 2007. Without any probative evidence of damage, Sturdivant cannot demonstrate a triable issue on her negligence claim. Accordingly, we find that the trial court’s grant of summary judgment with respect to this cause of action was proper. This issue is without merit.

II. Whether the trial court erred in granting Coahoma County’s motion to dismiss. •

¶ 12. Next, Sturdivant argues that the trial court’s dismissal of all claims against Coahoma County was improper. The primary basis for Coahoma County’s motion to dismiss was Sturdivant’s failure to timely effectuate service of process as required by Rule 4(h) of the Mississippi Rules of Civil Procedure. Rule 4(h) states:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

¶ 13. Sturdivant filed her complaint on September 1, 2010. Thus, she had 120 days from that date to serve process on Coahoma County. However, Sturdivant did not serve process on Coahoma County until April 19, 2011, substantially beyond the 120-day time limit. As an excuse for her delay, Sturdivant argues that she was presented with the problem of having one defendant — Moore Bayou — that was a non-governmental entity, and one defendant — the County — that was a governmental entity and protected by the Mississippi Tort Claims Act (MTCA), which mandates a ninety-day notice period before having summons issued upon a governmental entity. Miss.Code Ann § 11-46-11(1) (Rev. 2012). Here, a notice of claim was issued to Coahoma County by Sturdivant on September 24, 2010. Sturdivant claims that in order to comply with the notice requirement under the MTCA, she had to wait until the ninety-day notice period expired before serving process on Coahoma County.

¶ 14. The trial court determined that Sturdivant’s intentional delay in serving process did not constitute good cause. Sturdivant made no attempt to obtain an extension of time to serve process on Coa-homa County. Furthermore, Sturdivant provided no authority to support her argument that compliance with the MTCA’s notice period should excuse a plaintiffs failure to serve process upon a defendant, that defendant being a governmental entity, within 120 days as required by Rule 4(h). The appellate court “leaves to the discretion of the trial court the finding of fact on the existence of good cause or excusable neglect for delay in serving process under Rule 4(h).” Stutts v. Miller, 37 So.3d 1, 3 (¶ 7) (Miss.2010) (quoting Johnson v. Thomas ex rel. Polatsidis, 982 So.2d 405, 409 (¶ 11) (Miss.2008)). “Only where such discretion is abused or is not supported by substantial evidence will [the appellate court] reverse.” Id. (internal quotation and citation omitted). Here, we find no abuse of discretion in the trial court’s determination that no good cause was shown by Sturdivant in failing to timely serve process on Coahoma County. Thus, the grant of Coahoma County’s motion to dismiss was proper. This issue is without merit.

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

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

      . Sturdivant is a resident of Los Angeles, California, and owns property in Coahoma County, Mississippi.

      . The record is silent as to what percentage of the cost was paid by each party. For reasons unclear to this Court, both parties agreed that the $19,688 needed to replace the line to Sturdivant's property would be solely borne by Moore Bayou.

      . Later in the proceedings, Sturdivant filed a motion to dismiss MDOT without prejudice, which was granted by the trial court.

      . The 135.41 water deposit included a $10 membership fee and a $120 meter deposit plus tax.


author: ROBERTS, J.,

text:
    Roy L. STEWART a/k/a Roy Stewart a/k/a Roy L. Steward a/k/a Roy Steward, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00895-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2013.
    Rehearing Denied Jan. 28, 2014.

      George T. Holmes, Jackson, Ernest Tucker Gore, Phillip Broadhead, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before IRVING, P.J., ROBERTS, CARLTON and JAMES, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Roy L. Stewart was convicted on one count of burglary by a jury in the Washington County Circuit Court. He was sentenced to serve six years in the custody of the Mississippi Department of Corrections (MDOC), with four years to serve and two years of post-release supervision (PRS). Stewart now appeals his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. During the early morning hours on September 1, 2010, a Leland police officer discovered that Buster’s Liquor Store in Leland, Mississippi, had been broken into at some point that morning. He observed that the hasp was broken off the door and that the plexiglass around the door was also broken. It was later determined that the only items missing from Buster’s were bottles of alcohol.

¶ 3. Several months later, the Greenville Police Department contacted the Leland Police Department and informed them that they had detained Lakesha Warfield on unrelated charges, but she had stated that she had information about the Buster’s burglary. Leland police officers interviewed Warfield about the incident. Warfield, Stewart’s on-again-off-again girlfriend and the mother of three of his children, told police that she and Stewart had rented a room at the neighboring Leland Motel on the night of the burglary. She told the police that they saw two unidentified men breaking into the store, but they did not see anything else. Before she left, he took the bedspread off of the bed and went out the motel door. After Stewart removed the bedspread, Warfield stated, she did not go outside the room until he had come back to the room. They never discussed what he did during the time he was outside of the room and she never actually saw Stewart go into Buster’s; however, she did hear some clinking sounds like bottles hitting each other while Stewart was outside of the room with the bedspread. Further, she stated that the following day she observed approximately fifteen bottles of unopened alcohol in the trunk of- Stewart’s car, which he then sold on the street. She also testified that when she left to go home, she left Stewart in the room alone. Warfield described Stewart’s vehicle as a light blue 1998 Mercury Marquis.

¶ 4. Police arrested Stewart for the burglary of Buster’s, and a grand jury indicted him for the crime on July 12, 2011. Stewart’s jury trial began on April 17, 2012, and ended the following day on April 18, 2012. At trial, Warfield testified to the above facts. However, she admitted that she and Stewart had a volatile relationship, and at the time she gave information to the police, she was angry at him for cheating on her. Stewart’s attorney asked Warfield the following question: ‘You were mad at him, and this is why you exaggerated your story about what happened that night. Correct?” Warfield responded, “Yes, sir.”

¶ 5. Additionally, the State produced the testimony of Leland Police. Officer Scott Tarpley, who initially discovered the burglary while on patrol. He .also testified that no prints were obtained from the scene. The State also provided the testimony of Kenny Thomas, the owner of the Leland Motel, who explained the video-surveillance system the motel utilizes. He explained that while none of the video cameras directly show Buster’s, the cameras do show the parking lot adjacent to Buster’s. The State showed the jury the video-surveillance footage from that night. In the footage, a man exits a motel room and walks toward Buster’s. He then goes out of frame for a few minutes until he is again seen pushing a wheelbarrow toward the trunk of his car parked in the motel parking lot. He unloads the contents of the wheelbarrow into the trunk. The man then gets a bedspread from a motel room and again walks toward Buster’s. He appears on camera carrying a load of something in the bedspread. He again puts the contents into the trunk of his car. Leland Police Department Investigator Karen Taylor also testified for the State. Investigator Taylor was the officer that interviewed Warfield. Investigator Taylor also determined that the vehicle in the surveillance video matched Stewart’s vehicle. Lastly, Russell King, part owner of Buster’s, testified as to the items missing from the store. He also stated that Buster’s usually kept a wheelbarrow outside of the store, and that it was also missing until Thomas informed him it was in the motel parking lot.

¶ 6. A jury convicted Stewart for the burglary of Buster’s. He was sentenced to serve six years in the custody of the MDOC, with four years to serve and two years of PRS. Stewart timely filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial; the circuit court denied this motion on May 31, 2012. Stewart executed the current appeal and raised the following issue: “Did the [circuit] court err in failing to sustain [Stewart’s] motion for directed verdict, peremptory instruction and/or the motion for [JNOV] because the evidence presented during the [State’s] case-in-chief was legally insufficient!?]”

ANALYSIS

¶ 7. Stewart’s challenge to the denial of his motions for a JNOV and a directed verdict is a challenge to the sufficiency of the evidence. Our standard of review to challenges to the sufficiency of the evidence has been outlined in the Mississippi Supreme Court case of Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). In Bush, the supreme court stated: “[T]he critical inquiry is whether' the evidence, ■viewed in a light most favorable to the State, shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test[,] it is insufficient to support a conviction.’ ” Id. (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Additionally, “if a review of the evidence reveals that it is of such quality and weight that, ‘having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ the evidence will be deemed to have been sufficient.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 8. Stewart argues that the State failed to put on any evidence identifying him as the person who committed the crime. He submits that “[t]he State provided no evidence, direct or circumstantial, to decisively identify [Stewart] as the exact person who burglarized the liquor store” and that the reliance on a “scorned” girlfriend’s testimony was not sufficient. We disagree. At trial, Warfield testified that she was again dating Stewart; however, she did not recant any portion of her story, including her claim that she saw Stewart leave their motel room with a bedspread and that she later saw unopened bottles of alcohol in the trunk of his car, a Mercury Marquis. Additionally, Investigator Taylor testified that she was able to determine that Stewart’s vehicle was the same as the vehicle in the surveillance video. It is well settled that it is for the jury to weigh the credibility of witnesses. Carpenter v. State, 102 So.3d 290, 294 (¶ 10) (Miss.Ct.App.2012) (citing Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003)). Based upon the evidence presented, we find that a reasonable juror could have found that the State satisfied its burden of identifying Stewart as the man who burglarized Buster’s. ..

¶ 9. Stewart also argues that the State failed to satisfy the elements of “breaking” and “entering” in proving the necessary elements of burglary beyond a reasonable doubt. Therefore, he claims that the evidence was insufficient to support his conviction and subsequent sentence for burglary of a business. Mississippi Code Annotated section 97-17-33(1) (Rev.2006) provides: “Every person who shall be convicted of breaking and entering, in the day or night, any shop [or] store ... in which any goods, merchandise, equipment or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony, ... shall be guilty of burglary[.]” Stewart argues that the State’s case was solely based on circumstantial evidence, and the State did not disprove every possible hypothesis of his innocence, including that other unidentified men originally broke into Buster’s and carried the alcohol outside of the' building and left it there. Based on this scenario, he would not have had to actually enter the building to take the alcohol. While Stewart is correct that in circumstantial-evidence cases, the State does have to disprove every reasonable hypothesis consistent with innocence, this is not a wholly circumstantial case. The jury was presented with video surveillance depicting a man carrying the stolen bottles to the trunk of his vehicle using what appeared to be a bedspread or sheet. Stewart’s own girlfriend described how he took the bedspread off the hotel bed and went outside of the hotel room, and then the following day, she observed many unopened bottles of alcohol in the trunk of his car. Additionally, Investigator Taylor testified that Stewart’s vehicle matched the vehicle seen in the surveillance video. Based on the evidence, it was reasonable for the jury to conclude that Stewart gained entry to Buster’s through the door and used the wheelbarrow and bedspread to move the bottles from inside the store to the trunk of his car.

¶ 10. With the above standard of review in mind, we find that the circuit court did not err in denying Stewart’s motions for a directed verdict and a JNOV. Therefore, this issue is without merit.

¶11. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY AND SENTENCE OF SIX YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FOUR YEARS TO SERVE AND TWO YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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