text:
    Kyle Millie PLATT a/k/a Kyle M. Platt a/k/a Kyle Mille Platt a/k/a Kyle Platt a/k/a Kyle Mille’ Platt, Appellant. v. STATE of Mississippi, Appellee.
    No. 2013-KM-01024-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2014.

      David S. Van Every Sr., Columbus, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Kyle Platt was charged with driving under the influence, and the Madison County Justice Court found him guilty of common law DUI pursuant to Mississippi Code Annotated section 63 — 11—30(1)(a) (Rev. 2013). Platt appealed to the County Court of Madison County. During trial, after Platt’s blood test results were admitted into evidence, the county court granted the State’s ore tenus motion to amend Platt’s charges to include per se DUI pursuant to Mississippi Code Annotated section 63—11—30(l)(c) (Rev. 2013). The county court found Platt guilty of common law DUI. Platt appealed to the Madison County Circuit Court, which affirmed the judgment of the county court. Platt now appeals the judgment of the circuit court, arguing that (1) the evidence was insufficient to support his conviction; (2) the county court erred by finding that there was probable cause for the stop; (3) the county court erred by admitting the blood test results; and (4) the county court erred by amending the charges.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On November 3, 2009, Mark San-dridge, a deputy sheriff of Madison County, arrested Platt for DUI after stopping Platt for driving with an expired tag. Before arresting Platt, Deputy Sandridge administered several field sobriety tests, including two portable breath tests (PBT) that yielded positive results. Deputy San-dridge also administered the horizontal-gaze-nystagmus (HGN) test, the walk-and-turn test, and the one-leg-stand test. Platt failed the HGN test and the walk- and-turn test, although he successfully passed the one-leg-stand test.

¶ 4. Following the arrest, Deputy San-dridge transported Platt to the Madison County Detention Center (MCDC), where nurse Mildred Taylor collected a blood sample from Platt to determine Platt’s blood-alcohol-concentration (BAC) level. Taylor cleaned Platt’s arm with an alcohol swab prior to collecting the blood sample. The blood test revealed a BAC level of nine one-hundredths percent (.09%).

¶ 5. Following several continuances, on February 9, 2012, the justice court found Platt guilty of common law DUI. Platt appealed, and the case proceeded to trial de novo in the county court. During trial, Deputy Sandridge testified that he was traveling southbound on Old Canton Road in Ridgeland, Mississippi, when he observed Platt, who was traveling ahead of him on Old Canton Road, abruptly merge into a left-turn lane and then make a left turn into a Kangaroo Crossings convenience store. According to Deputy San-dridge, when Platt’s vehicle made the abrupt left into the turn lane, he noticed Platt’s expired tag, and this caused him to initiate a traffic stop. Deputy Sandridge parked behind Platt’s vehicle in the store’s parking lot and exited his patrol car to speak with Platt, who was attempting to enter the store. Deputy Sandridge testified that while speaking with Platt, he smelled a strong odor of alcohol on Platt’s breath and that Platt informed him that Platt had consumed alcoholic beverages about an hour prior to being stopped. According to Deputy Sandridge, during the stop, he noticed that Platt’s reflexes seemed “depressed and sluggishf,] [and] [h]is speech was mumbled and slurred.” Deputy Sandridge testified that Platt admitted that he had been driving with an expired tag. Deputy Sandridge also testified that after he stopped Platt, he noticed a half-empty, open beer container in Platt’s vehicle.

¶ 6. During the State’s case, the State introduced evidence of Platt’s blood test results through the testimony of Emily J. Harper, who analyzed Platt’s blood sample and prepared the report of the results of her analysis. The report was admitted into evidence. On cross-examination by Platt’s counsel, Harper testified that she had no independent knowledge regarding the calibration of the machine used to test Platt’s blood sample and that she was sure that there was a certificate of calibration showing the date of the last calibration, although she was unable to produce that document at trial.

¶ 7. Before resting its case, the State made an ore tenus motion, based on the blood test results, to amend the charges against Platt to include per se DUI. Platt objected to the amendment on jurisdictional grounds, arguing that the motion to amend came too late because the State had completed the presentation of -its evidence before moving to amend. The county court granted the State’s motion, finding that the amendment would neither enhance Platt’s charges nor prejudice Platt’s defense. However, before granting the motion, the county court gave Platt the option of continuing the case in order to prepare his defense, and Platt declined.

¶ 8. After the State rested its case, Platt testified in his own defense. He testified that he was traveling northbound on Old Canton Road prior to making an initial right turn followed by a second right turn into the store parking lot. Platt stated that he did not see Deputy Sandridge’s patrol car until Platt was opening the door to enter the store. Platt also stated that he had no knowledge of an open beer container being in his vehicle. Platt indicated that he believed the alcohol from the swab applied by Taylor mixed in with his blood sample, resulting in an increased BAC level. Platt adduced testimony from Kirk Rosenhan, an expert in the field of DUI. Rosenhan testified that the swab may have contaminated Platt’s blood sample and may have led to inaccurate results.

¶ 9. At the conclusion of the evidence, the county court found Platt guilty of common law DUI only. Platt appealed to the Madison County Circuit Court, which affirmed.

DISCUSSION

I. Sufficiency of the Evidence

¶ 10. A person is guilty of common law DUI if he “drive[s] or otherwise operate[s] a vehicle ... under the influence of intoxicating liquor.” Miss.Code Ann. § 63-11-30(1)(a). In Robinson v. State, 794 So.2d 293, 296 (¶ 12) (Miss.Ct.App.2001) (quoting Reed v. State, 749 So.2d 179, 181 (¶3) (Miss.Ct.App.1999)), this Court stated:

The standard of review for determining whether the evidence is legally sufficient to sustain a conviction in a case tried without a jury is the same as the standard of reviewing a denial of a motion for a judgment notwithstanding the verdict. This Court may only reverse “where one or more of the elements of the offense charged is lacking to such a degree that reasonable jurors could only have found the defendant not guilty.”

This court is required to view the evidence in the light most favorable to the prosecution. Id. at (¶ 16).

¶ 11. In this case, Deputy San-dridge testified that he noticed Platt’s expired tag when Platt abruptly merged into a left-turn lane and then turned into the parking lot of a convenience store. Platt admitted that he had consumed alcoholic beverages about an hour prior to being stopped and that he had been driving with an expired tag. As stated, Platt had no explanation for the open beer container found in his vehicle on the night he was arrested. Additionally, Platt acknowledges that the only field sobriety test he passed was the one-leg-stand test, although he insists that passing the one-leg-stand test is evidence that he was not driving under the influence of alcohol. As noted, Deputy Sandridge testified that Platt’s speech was slurred and that Platt swayed back and forth as he and Platt conversed in the store’s parking lot. After reviewing the record, we find that the evidence was sufficient to sustain Platt’s DUI conviction. This issue is without merit.

II. Probable Cause

¶ 12. “ ‘Determinations of reasonable suspicion and probable cause should be reviewed de novo.’ While we review the lower court’s legal conclusions regarding probable cause de novo, we ‘must accept the fact[-]findings that led the lower court to that legal conclusion unless there is clear error in those fact[-]findings.’ ” Martin v. State, 43 So.3d 533, 534 (¶ 4) (Miss.Ct.App.2010) (citations omitted). “As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Mosley v. State, 89 So.3d 41, 46 (¶ 14) (Miss.Ct.App.2011) (quoting Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)).

¶ 13. Here, Deputy Sandridge testified that he noticed Platt’s expired tag when Platt abruptly merged into a left-turn lane and then turned into the store’s parking lot. Deputy Sandridge stated that this observation caused him to stop Platt. On appeal, Platt argues that Deputy San-dridge lacked probable cause to stop him because Deputy Sandridge was traveling northbound on Old Canton Road while he was traveling southbound. Platt insists that it was impossible for Deputy San-dridge to have seen his expired tag because he and Deputy Sandridge were traveling in opposite directions. However, this argument belies Platt’s own admission, made during the traffic stop as well as during trial in the county court, that he was driving with an expired tag on the night he was arrested for DUI. Moreover, when the evidence is conflicting, it is the providence of the fact-finder to resolve the conflict. See Langston v. State, 791 So.2d 273, 280 (¶14) (Miss.Ct.App.2001) (citing Billiot v. State, 454 So.2d 445, 463 (Miss. 1984)). Here the conflicting evidence was resolved against Platt. This issue is without merit.

III. Blood Test Results

¶ 14. “The standard of review for admission of evidence is abuse of discretion.” Debrow v. State, 972 So.2d 550, 552 (¶ 6) (Miss.2007) (citing Smith v. State, 839 So.2d 489, 494 (¶6) (Miss.2003)). “[Reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused occurs.” Wash v. State, 790 So.2d 856, 858 (¶ 5) (Miss.Ct.App.2001) (quoting Sturdivant v. State, 745 So.2d 240, 243 (¶ 10) (Miss.1999)).

¶ 15. Platt argues that the county court erred by admitting the blood test results because there was uncontradicted, uncontested evidence that the blood sample used to test his BAC level was contaminated. Platt asks us to find that “a reasonable doubt and more has been raised about the validity and trustworthiness of the blood test results considering the contamination of the blood.” In response, the State argues that Platt failed to object to the admissibility or reliability of the blood test results during trial, and that Platt is, therefore, procedurally barred from raising this issue on appeal. Additionally, the State points out that Platt also failed to object to the State’s failure to present Taylor at trial.

¶ 16. The record reveals that Platt lodged a “continuing objection” to the blood test results on the ground that the evidence at trial did not show that the machine used to test his blood had been properly calibrated. At trial Platt objected to admission of the blood test results on the basis that the machine used to analyze the blood sample allegedly had not been calibrated. On appeal, he argues that admission was improper because the sample was allegedly contaminated. It is well-settled law that one cannot offer and argue on appeal a different basis than what was offered at trial in objecting to admission of evidence. Ratliff v. State, 906 So.2d 133, 137 (¶ 11) (Miss.Ct.App.2004) (citation omitted). That is exactly what Platt is attempting to do with his argument on appeal that the trial court erred by admitting the results of the blood sample because of overwhelming evidence of its contamination. Therefore, we agree with the State that he is procedurally barred from raising this issue on appeal. Procedural bar notwithstanding, we do not find that the county court abused its discretion in admitting the blood test results. There was ample evidence that the sample was not contaminated and that the machine used to analyze the blood sample had been properly calibrated. This issue is without merit.

IV. Amendment

¶ 17. As previously indicated, section 63—11—30(1)(a) makes it “unlawful for any person to drive or otherwise operate a vehicle ... under the influence of intoxicating liquor.” Section 63—11—30(1)(c) makes it “unlawful for any person to drive or otherwise operate a vehicle, [with] an alcohol concentration of eight one-hundredths percent (.08%) or more for persons who are above the legal age.”

¶ 18. In a case cited extensively by Platt, Young v. City of Brookhaven, 693 So.2d 1355, 1357 (Miss.1997), the State prosecuted a defendant for both common law DUI (under section 63—11—30(1)(a)) and per se DUI (under section 63—11—30(1)(c)). Id. The defendant was convicted of DUI and he appealed, arguing that the State’s prosecution under both subsections prejudiced his defense. Id. There, after extensive analysis, our supreme court found no merit in the defendant’s argument and held that “[section] 63-11-30 merely sets forth numerous methods of committing the same crime.” Id. at 1358.

¶ 19. In Watts v. State, 828 So.2d 835, 842 (¶ 19) (Miss.Ct.App.2002), this court stated, “[An amendment] is permissible if it does not materially alter facts which are the essence of the offense ... as ... originally [charged] or materially alter a defense to [a charge] as it originally stood so as to prejudice the defendant’s case.”

¶ 20. On appeal, Platt argues that “[o]ne would assume that on an appeal of the common law conviction, being a trial de novo, there would only be a retrial of the [jjustice [c]ourt’s trial pursuant to the common law[-]DUI charge.” He insists that to allow the county court to amend the charges “would be a return to a trial by ambush.” In response, the State argues that there is no distinction between common law DUI and per se DUI that would support Platt’s argument that he received an unfair trial. The State also argues that this issue is moot because the county court did not find Platt guilty of per se DUI. We agree.

¶21. The county court allowed the charges to be amended to reflect the evidence presented during trial, and the amendment did not materially alter the charges made against Platt or the essence of the offense that Platt was charged with. Although Platt argues that his defense was prejudiced because he was not given an opportunity to “attack[ ] the machine, [and present] possible expert testimony on issues of science as compared to common law DUI,” the record shows otherwise. During trial, Platt adduced testimony from Harper regarding the certification of the machine used to test his blood. Furthermore, Platt adduced testimony, through Rosenhan, in an attempt to contradict the blood test results. Additionally, although given an opportunity to do so, Platt declined to accept the court’s offer to continue the trial to allow him time to prepare any additional defense he may have deemed necessary as a result of the amendment. This issue is without merit. Accordingly, we affirm.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF FORTY-EIGHT HOURS, WITH FORTY-EIGHT HOURS SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Platt was ticketed for the expired-tag offense, although the charge was later dismissed on motion by the State.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Tyler GRAHAM a/k/a Tyler Lane Graham, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-02059-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2014.

      Tyler Graham, appellant, pro se.
    Office of the Attorney General by Melanie Dotson Thomas, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Tyler Graham appeals the Carroll County Circuit Court’s denial of his motion for post-conviction relief (PCR). On appeal, Graham raises the following issues: (1) whether his claim that his attorney gave him incorrect advice about parole eligibility was time-barred; (2) whether he was entitled to any type of relief due to his attorney’s incorrect advice about parole eligibility; (3) whether the circuit court failed to address his claim regarding intervening decisions of the United States Supreme Court; and (4) whether his convictions violated the Double Jeopardy Clause. Finding no error in the circuit court’s denial of Graham’s PCR motion, we affirm.

FACTS

¶ 2. On October 24, 2006, a grand jury indicted Graham for aggravated assault and armed robbery. On November 20, 2006, Graham pled guilty to both charges, and the circuit court judge sentenced him to serve twenty years for Count I, aggravated assault, and twenty-five years for Count II, armed robbery, both in the custody of the Mississippi Department of Corrections, with the sentence in Count I to run concurrently with the sentence in Count II. On June 7, 2013, Graham filed his PCR motion, and on July 12, 2013, he filed a motion to vacate his conviction and sentence.

¶ 3. The circuit court judge consolidated Graham’s motions after finding that both motions sought to set aside Graham’s convictions and sentences due to a violation of the Double Jeopardy Clause and incorrect advice from Graham’s attorney regarding parole eligibility. In an opinion entered July 16, 2013, the circuit court judge found that Graham’s assignments of error lacked merit and that his PCR motion was barred by the three-year statute of limitations. See Miss.Code Ann. § 99-39-5(2) (Supp.2014). Aggrieved by the circuit court’s ruling denying his PCR motion, Graham now appeals to this Court.

STANDARD OF REVIEW

¶ 4. “When reviewing a circuit court’s denial or dismissal of a PCR motion, we will reverse the judgment of the circuit court only if its factual findings are ‘clearly .erroneous’; however, we review the circuit court’s legal conclusions.under a de novo standard of review.” Boyd v. State, 65 So.3d 358, 360 (¶ 10) (Miss.Ct.App.2011).

DISCUSSION

¶ 5. Because Graham entered a plea of guilty to the counts charged in his indictment, section 99-39-5(2) provides that he had three years from the entry of his judgment of conviction to file his PCR motion. The record reflects that the circuit court entered Graham’s judgment of conviction on November 20, 2006. However, Graham failed to file his PCR motion until June 7, 2013, which fell well outside the three-year statute of limitations provided by section 99-39-5(2). Therefore, unless Graham can demonstrate that he meets an exception to the procedural bars of the Uniform Post-Conviction Collateral Relief Act (UPCCRA), his PCR motion is time-barred.

¶ 6. In previously addressing the UPCCRA’s time bar, this Court stated:

Section 99-39-5(2)(a)-(b) provides three exceptions to the general three-year statute of limitations. To be exempt, a movant must show one of the following: (1) an intervening decision of the United States Supreme Court or Mississippi Supreme Court; (2) new evidence, not reasonably discoverable at trial; or (3) his sentence has expired or his parole, probation, or conditional release has been unlawfully revoked. However, the movant carries the burden of proving that one of the exceptions applies].

Bates v. State, 126 So.3d 990, 992 (¶ 8) (Miss.Ct.App.2013) (internal citations omitted). “In addition to the statutory exceptions afforded by the [UPCCRA], we have provided that an exception to the procedural bars exists for errors affecting certain constitutional rights.” Rowland v. State, 98 So.3d 1032, 1036 (¶ 6) (Miss.2012). However, “the mere assertion of a constitutional right violation is not sufficient to overcome the time bar. There must at least appear to be some basis for the truth of the claim before the limitation period will be waived.” Stovall v. State, 873 So.2d 1056, 1058 (¶7) (Miss.Ct.App.2004).

I. Whether Graham’s claim that his attorney gave him incorrect advice about parole eligibility was time-barred.

II. Whether Graham was entitled to any type of relief due to his attorney’s incorrect advice about parole eligibility.

¶ 7. In his first assignment of error, Graham contends that the circuit court erroneously held as time-barred his claim that he received incorrect parole-eligibility advice from his attorney. Graham argues that, because this claim of ineffective assistance of counsel concerns a constitutional-rights violation, the claim is excepted from the UPCCRA’s procedural bars. Graham also argues in his second assignment of error that the circuit court erroneously found his claim of ineffective assistance of counsel failed to entitle him to any type of relief. Graham asserts that the circuit court should have held an evidentiary hearing before dismissing his claim. For the sake of brevity, we address together these two assignments of error regarding Graham’s claim of ineffective assistance of counsel.

¶ 8. “Where a petitioner asserts a fundamental right, the courts must address the merits of the petition for [PCR] regardless of procedural bars.” Salter v. State, 64 So.3d 514, 517-18 (¶ 14) (Miss.Ct.App.2010) (citing Rowland v. State, 42 So.3d 503, 507-08 (¶ 12) (Miss.2010)). In Salter, the defendant argued that his claims of ineffective assistance of counsel and an involuntary guilty plea were sufficient to invoke the fundamental-rights exception to the UPCCRA’s procedural bars. Id. at 518 (¶ 14). However, this Court disagreed with the defendant’s assertions, recognizing that “[t]he supreme court has held that claims of ineffective assistance of counsel and involuntary guilty pleas are indeed subject to the procedural bars.” Id. (citing Kirk v. State, 798 So.2d 345, 346 (¶ 6) (Miss.2000)). We therefore held that the circuit court correctly dismissed the defendant’s petition as a successive writ. Id. at (¶ 15).

¶ 9. After reviewing relevant caselaw and the facts in the record, we find no error in the circuit court’s ruling that Graham’s PCR motion was procedurally barred as untimely. Notwithstanding the time bar, however, we recognize that Graham’s claim fails for other reasons. As the record reflects, Graham acknowledged under oath during his plea colloquy that he knew and understood the maximum punishment for both crimes charged in his indictment. Graham also stated under oath during the plea colloquy that he was completely satisfied with the representation provided by his attorney.

¶ 10. In addition to Graham’s admissions during his plea colloquy, we recognize that Graham fails to support his allegation of ineffective assistance of counsel with any supporting affidavits. “Our appellate courts routinely hold that [PCR] claims of ineffective assistance are properly dismissed where the defendant offers only his affidavit in support of his allegations.” Edwards v. State, 995 So.2d 824, 826 (¶ 11) (Miss.Ct.App.2008) (citations omitted). “A [PCR] motion unsupported by affidavits other than the petitioner’s own fails to meet the pleading requirements of Mississippi Code Annotated section 99-39-9 [ (Supp.2014) ] and, thus, is deficient on its face and properly dismissed without an evidentiary hearing.” Id. at 826-27 (¶ 11) (citations omitted).

¶ 11. Based on the record and our applicable caselaw, we find no merit to Graham’s assignments of error regarding his ineffective-assistance-of-counsel claim.

III. Whether the circuit court failed to address Graham’s claim regarding intervening decisions by the United States Supreme Court.

¶ 12. Graham next asserts that the circuit court failed to address his claim that two intervening decisions by the Supreme Court require review of his guilty plea and subsequent convictions and sentences. Graham argues that, although the circuit court’s opinion touched on his first two claims, the circuit court completely failed to recognize or address his claim regarding intervening Supreme Court decisions.

¶ 13. As reflected in the record, Graham cites Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), and Missouri v. Frye, — U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), to support his assertion that his attorney’s incorrect advice regarding parole eligibility entitles him to relief. In Padilla, the Supreme Court found an attorney’s performance deficient because the attorney failed to inform the defendant of the immigration consequences of his guilty plea. Padilla, 559 U.S. at 356. In Frye, the Supreme Court found an attorney’s performance deficient because the attorney failed to inform the defendant of a formal offer to accept a plea on possibly more favorable terms and conditions before the offer’s expiration. Frye, 132 S.Ct. at 1408.

¶ 14. In his opinion denying Graham’s PCR motion, the circuit court judge acknowledged:

On several occasions, it has been held that a criminal defendant [who] is given incorrect advice from his attorney concerning parole eligibility might be entitled to [PCR]. Fairley v. State, 834 So.2d 704 (Miss.2003); Garner v. State, 928 So.2d 911 (Miss.Ct.App.2006); Thomas v. State, 881 So.2d 912 (Miss.Ct. App.2004). This was the law at the time [Graham] entered his guilty pleas, and not some intervening appellate court decision that was rendered after [Graham] pleaded guilty.

The circuit court judge thus found “Graham’s claim that he [was] entitled to have his convictions and sentences set aside, due to incorrect advice from his attorney concerning parole eligibility, to be barred” by the UPCCRA’s three-year statute of limitations.

¶ 15. As previously discussed, we find no error in the circuit court’s ruling that Graham’s claims of ineffective assistance of counsel are time-barred. Despite Graham’s assertions to the contrary, a review of Padilla and Frye fails to demonstrate that these cases impact the outcome of Graham’s convictions and sentences. As a result, we find no merit to Graham’s argument that these two Supreme Court decisions constitute intervening caselaw requiring the reversal of his convictions and sentences.

IV. Whether Graham’s convictions violated the Double Jeopardy Clause.

¶ 16. Graham asserts that his convictions for armed robbery and aggravated assault violate the Double Jeopardy Clause. Graham argues that “violence to the victim’s person” was a necessary element of both crimes, and he contends that his “conviction for two crimes based on the same single violent act[, which served] as a required element for both crimes, is a violation” of the Double Jeopardy Clause.

¶ 17. In Thomas v. State, 930 So.2d 1264, 1266 (¶5) (Miss.Ct.App.2005), this Court found no merit to the defendant’s claim that his convictions for armed robbery and aggravated assault, which were based on a single set of events, amounted to double jeopardy. We recognized that Mississippi jurisprudence applies the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether double jeopardy applies to a defendant’s claim. Thomas, 930 So.2d at 1266 (¶ 6). “The Blockburger test states that ‘a single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’” Thomas, 930 So.2d at 1266 (¶ 6) (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. 180).

¶ 18. “In determining whether two charged offenses actually constitute but one crime, we look to the elements of each crime. Where one crime charged requires proof of an additional fact not required of the second charge, the charges are, in fact, two separate crimes.” Rio- vail, 873 So.2d at 1058 (¶ 10) (citing State v. Thomas, 645 So.2d 931, 933 (Miss.1994)). Furthermore, “Mississippi has long recognized that separate offenses, though committed under a common nucleus of operative fact, [do] not present a legal impediment to multiple prosecutions under the [D]ouble [J]eopardy [C]lause of both the federal and the state constitutions.” Henley v. State, 749 So.2d 246, 249 (¶ 12) (Miss.Ct.App.1999) (citations' omitted).

¶ 19. As our precedent establishes, “[a]ggravated assault does not require the taking or attempt to take property. Armed robbery does not require an attempt to cause bodily injury.” Thomas, 930 So.2d at 1266 (¶ 9). Based on our statutory law and previous caselaw, we find that each of Graham’s charges required proof of an additional fact not required by the other charge. Therefore, Graham’s convictions for armed robbery and aggravated assault clearly constituted two separate offenses. As a result, we find no merit to Graham’s argument that his convictions for armed robbery and aggravated assault violate the Double Jeopardy Clause.

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

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

      . As reflected in Graham’s plea colloquy, the State was prepared to prove at trial that Graham hit the victim in the head multiple times, causing traumatic brain injury, a skull fracture, and multiple facial bone fractures. The State was further prepared to prove that Graham then left the victim in this injured condition and stole the victim’s truck.

      . To support his argument that his convictions violate the Double Jeopardy Clause, Graham cites Rowland, where the supreme court found that the defendant "was placed in double jeopardy when he was convicted of capital murder (killing while engaged in the commission of armed robbery) and the included offense of armed robbery....” Rowland, 98 So.3d at 1039 (¶ 14). Graham asserts on appeal that the circuit court relied on a string of pre-Rowland cases, including Thomas, to reach a generic holding that Graham’s convictions failed to violate the Double Jeopardy Clause. Despite Graham's assertions, a review of Rowland confirms that our holding in Thomas and similar cases is still good law and was not overturned by the supreme court's decision in Rowland.

      . See also Miss.Code Ann. § 97-3-7(2) (Rev. 2006) (providing the elements required for aggravated assault); Miss.Code Ann. § 97-3-79 (Rev. 2006) (providing the elements required for armed robbery).


author: ROBERTS, J.,

text:
    Freddrick STAMPS, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-01147-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2014.

      Freddrick Stamps, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    ■ Before LEE, C.J., ISHEE, ROBERTS and JAMES, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Freddrick Stamps pled guilty to burglary. The Sharkey County Circuit Court sentenced him to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended and five years to serve, followed by three years of post-release supervision. By pleading guilty to burglary, Stamps avoided prosecution for sexual battery. Additionally, Stamps avoided prosecution as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007). After he pled guilty, Stamps filed a motion for post-conviction relief (PCR), and later “amended” his PCR motion to raise additional issues. The circuit court found no merit to Stamps’s PCR motion and summarily denied his request for relief. Stamps appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Stamps was indicted for sexual battery and burglary of a dwelling. Additionally, the prosecution alleged that Stamps qualified for enhanced sentencing as a habitual offender under section 99-19-81. Accordingly, Stamps faced a potential sentence of twenty-five years for burglary. Miss.Code Ann. § 97-17-23(1) (Rev. 2014). He also faced a maximum sentence of thirty years for sexual battery. Miss.Code Ann. § 97-3-101(1) (Rev. 2014). Later, the prosecution offered to drop the sexual-battery charge and the habitual-offender portion of the indictment if Stamps agreed to plead guilty to burglary. The prosecution also agreed to recommend that the circuit court sentence Stamps to fifteen years in the custody of the MDOC, with ten years suspended and five years to serve, followed by three years of post-release supervision. Stamps took the deal. He pled guilty to burglary on October 9, 2012. The circuit court sentenced him consistent with the prosecution’s recommendation.

¶ 3. In January 2013, Stamps filed a PCR motion. He claimed that his conviction and sentence for burglary should be vacated because he did not receive an initial appearance within forty-eight hours of his arrest. Stamps also claimed he received ineffective assistance of counsel because his attorney did not make the circuit court aware of alleged variations between the victim’s statement and the statement discussed in a police report. He also argued that his lawyer was ineffective because she did not inform the circuit court of the delay in Stamps’s initial appearance. Finally, Stamps claimed that his guilty plea was involuntary because he told his lawyer that he wanted to go to trial before he decided to plead guilty.

¶ 4. Two months later, Stamps filed an “amendment” to his PCR motion. Within his “amendment,” Stamps raised four new issues. He claimed that there was insufficient evidence that he was guilty of burglary, because there was insufficient evidence that he broke into the victim’s house with the intent to commit sexual battery. Stamps also claimed that the burglary charge in the indictment was fatally defective. It appears that he attempted to raise a new issue regarding his delayed initial appearance, but he essentially repeated the claim he raised in his original PCR motion. Lastly, he claimed that the sexual-battery charge in the indictment was fatally defective because it did not allege that he committed an overt act in furtherance of attempted sexual battery.

¶ 5. The circuit court considered the merits of the claims that Stamps raised in his original PCR motion and the “amendment” that he filed two months later. However, the circuit court found no merit to Stamps’s claims. Stamps appeals.

STANDARD OF REVIEW

¶ 6. In reviewing a circuit court’s decision to deny a PCR motion, an appellate court will not disturb the circuit court’s factual findings unless they are clearly erroneous. Rowland v. State, 42 So.3d 503, 506 (¶8) (Miss.2010). We review questions of law de novo. Id.

ANALYSIS

I.INITIAL APPEARANCE

117. Stamps’s first issue stems from the fact that his initial appearance before the Sharkey County Justice Court did not occur within forty-eight hours of his arrest. According to Stamps, because his initial appearance was approximately eighty-one hours after he was arrested, his guilty plea should be set aside, his sentence should be vacated, and both charges in the indictment should be dismissed with prejudice. Stamps does not claim that he experienced any particular prejudice because his initial appearance was delayed. In other words, Stamps suggests that he is immune to prosecution simply because his initial appearance was approximately thirty-three hours too late.

¶ 8. Rule 6.03 of the Uniform Rules of Circuit and County Court Practice provides that “[e]very person in custody shall be taken, without unnecessary delay and within 48 hours of arrest, before a judicial officer or other person authorized by statute for an initial appearance.” Rule 6.03 further states:

Upon the defendant’s initial appearance, the judicial officer or other person authorized by statute shall ascertain the defendant’s true name and address, and amend the formal charge if necessary to reflect this information. The defendant shall be informed of the charges against him/her and provided with a copy of the complaint. If the arrest has been made without a warrant, the judicial officer shall determine whether there was probable cause for the arrest and note the probable cause determination for the record. If there was no probable cause for the warrantless arrest, the defendant shall be released. The judicial officer shall also advise the defendant of the following:
1. That the defendant is not required to speak and that any statements made may be used against him ...;
2. If the defendant is unrepresented, that the defendant has the right to assistance of an attorney, and that if the defendant is unable to afford an attorney, an attorney will be appointed to represent him ...;
3. That the defendant has the right to communicate with an attorney, family or friends, and that reasonable means will be provided to enable [him] to do so;
4. Conditions under which the defendant may obtain release, if any; [and]
5. That the defendant has the right to demand a preliminary hearing while [he] remains in custody.

Stamps does not claim that his initial appearance, though delayed, was otherwise insufficient in any way. Although he claims that he experienced prejudice because of the delay, he does not elaborate regarding exactly how he was prejudiced.

¶9. The record reflects that Stamps exercised his right to remain silent, and otherwise refused to cooperate with the investigation after he was arrested. Consequently, the prosecution did not obtain any evidence against Stamps while he was waiting for his initial appearance. Additionally, there is no indication that the prosecution obtained some sort of tactical advantage by virtue of the delay. “[T]he failure to provide an initial appearance for the accused within forty-eight hours does not itself mandate reversal of his ... convictions” when the accused did not suffer prejudice as a result of the delay. McClendon v. State, 124 So.3d 709, 714 (¶ 13) (Miss.Ct.App.2013). A broad allegation of unspecified prejudice is insufficient. Because Stamps did not carry his burden to prove that the delay caused him some form of specific prejudice, we find no merit to this issue.

II. DOUBLE JEOPARDY

¶ 10. Next, Stamps claims that the circuit court should have dismissed the indictment against him because he was charged twice for the same crime. That is, Stamps claims he experienced double jeopardy because he was charged with sexual battery and burglary of a dwelling. Stamps’s reasoning is based on the premise that the burglary charge was related to his intent to commit sexual battery after he broke into the victim’s house.

¶ 11. Stamps raises this issue for the first time on appeal. Mississippi Code Annotated section 99-39-21(1) (Rev. 2007) states:

Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.

However, the Mississippi Supreme Court has held that the constitutional right to be free from double jeopardy is a fundamental right, and the procedural bars referenced in the Mississippi Uniform Post-Conviction Collateral Relief Act do not apply to double-jeopardy claims. Rowland, 42 So.3d at 508 (¶ 15). Additionally, “[e]r-rors affecting fundamental rights are exceptions to the rule that questions not raised in the trial court cannot be raised for the first time on appeal.” Read v. State, 430 So.2d 832, 837 (Miss.1983). Consequently, Stamps may raise this issue for the first time on appeal. However, Stamps is mistaken regarding his claim that he experienced double jeopardy.

¶ 12. A person’s life or liberty may not be placed in jeopardy twice for the same offense. U.S. Const. amend. V; Miss. Const. art. 3, § 22. “The double-jeopardy clause affords three protections: (1) protection from a second prosecution for the same offense after acquittal, (2) protection from a second prosecution for the same offense after conviction, and (3) protection from multiple punishments for the same offense.” Foreman v. State, 51 So.3d 957, 960 (¶8) (Miss.2011). The circumstances of Stamps’s case do not fall under any of those three categories. He was never prosecuted twice for the same offense. “[Pjrosecuting a defendant for separate and distinct statutory offenses does not violate the constitutional prohibition against double jeopardy — even if those offenses arise out of the same set of facts.” Adams v. State, 117 So.3d 674, 678 (¶ 12) (Miss.Ct.App.2013). “The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

¶ 13. Under Mississippi Code Annotated section 97-3-95(1)(a) (Rev. 2014), “[a] person is guilty of sexual battery if he or she engages in sexual penetration with ... [a]nother person without his or her consent[.]” To prove that someone is guilty of burglary, there must be proof beyond a reasonable doubt that the accused committed a “breaking and entering [of a] dwelling house ... with the intent to commit some crime therein[.]” Miss.Code Ann. § 97-17-23(1) (Rev. 2014). Burglary and sexual battery require proof of different facts. Consequently, even if the prosecution had pursued the sexual-battery charge, Stamps would not have been subjected to double jeopardy because he pled guilty to burglary. See also Norman v. State, 543 So.2d 1163, 1164 (Miss.1989) (holding that no 'double-jeopardy violation results from convictions for rape and burglary even where both charges arose from a common set of facts). There is no merit to this issue.

III. EFFECTIVE ASSISTANCE OF COUNSEL

¶ 14. Next, Stamps claims the circuit court erred when it did not find that he received ineffective assistance of counsel. Although Stamps raises a myriad of claims related to the underlying concept that he received ineffective assistance of counsel, he does not support his claims with any affidavits. “[Wjhere 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). Furthermore, most of Stamps’s claims are not specific enough to review. He claims that his attorney was ineffective because: (1) she failed to file unspecified “critical motions,” (2) she failed to investigate unspecified information “relating to his innocence,” (3) she would not assist him with some requests that he does not specify, and (4) she “attacked” him in some unspecified way. Such broad and conclusory allegations are insufficient for us to review.

¶15. “A voluntary guilty plea waives claims of ineffective assistance of counsel except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea.” Adams, 117 So.3d at 677 (¶ 10). To prove ineffective assistance of counsel, Stamps is obligated to prove: (1) his counsel’s performance was deficient, and (2) the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Stamps’s most developed claims were that his lawyer told him that he did not have a defense, and she did not point out a discrepancy between the victim’s statement and a police report that briefly summarized the victim’s statement. Stamps does not demonstrate how his lawyer’s performance was deficient for advising him that he did not have a defense. What is more, he does not even elaborate as to what defense he supposedly had. As for any discrepancy between the victim’s actual statement and the statement that was relayed in a police report, it was irrelevant. The discrepancy was relevant as to the sexual-battery charge. Stamps pled guilty to burglary. The prosecution did not pursue the sexual-battery charge. It would make no sense to point out a discrepancy that related to a charge for which Stamps was not being prosecuted. This issue has no merit.

IV. VOLUNTARY GUILTY PLEA

¶ 16. Stamps claims the circuit court erred when it found no merit to his claim that his guilty plea was involuntary. According to Stamps, his lawyer coerced him to accept the plea deal. He also claims that his guilty plea was involuntary because he told his lawyer that he wanted to go to trial before he decided to plead guilty.

¶ 17. “[A] guilty plea is valid so long as it was voluntarily and intelligently made by the criminal defendant before the trial court.” Larry v. State, 129 So.3d 263, 265 (¶ 6) (Miss.Ct.App.2013). “To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of that plea.” Id. During the guilty-plea hearing, Stamps swore that he- wanted to plead guilty. He was thirty-six years old at that time, and he had a twelfth-grade education. He said he understood his guilty-plea petition, and he signed it. On six separate occasions as the circuit court explained the rights that he was waiving, Stamps swore that he still wanted to plead guilty. “Solemn declarations made in open court carry a strong presumption of verity.” Id. There is entirely no merit to this issue.

Y. FACTUAL BASIS FOR THE GUILTY PLEA

¶ 18. For the first time on appeal, Stamps claims that there was no factual basis for his guilty plea. “[A petitioner] who fails to raise an issue in his motion for post-conviction relief before the trial court may not raise that issue for the first time on appeal.” Fluker v. State, 17 So.3d 181, 183 (¶ 5) (Miss.Ct.App.2009) (citing Gardner v. State, 531 So.2d 805, 808-09 (Miss.1988)). This issue is procedurally barred.

VI. SUFFICIENCY OF THE EVIDENCE

¶ 19. Next, Stamps claims there was insufficient evidence that he was guilty of burglary. By pleading guilty, an offender waives a claim that there was insufficient evidence to find him guilty. Welch v. State, 958 So.2d 1288, 1289 (¶ 5) (Miss.Ct.App.2007). There is no merit to this issue.

VII. DISCOVERY VIOLATION

¶ 20. Stamps also claims that the prosecution did not provide him with his clothes and pictures of the window that he used to access the victim’s home. Stamps did not raise this issue in his PCR motion. “[A petitioner] who fails to raise an issue in his motion for post-conviction relief before the trial court may not raise that issue for the first time on appeal.” Fluker, 17 So.3d at 183 (¶ 5). Consequently, this issue is procedurally barred.

VIII. SPEEDY TRIAL

¶ 21. Next, Stamps seems to claim that he was denied his right to a speedy trial, because 436 days passed between the time of his arrest and the date he pled guilty. Stamps did not raise this issue in his PCR motion. “[A petitioner] who fails to raise an issue in his motion for post-conviction relief before the trial court may not raise that issue for the first time on appeal.” Id. Procedural bar notwithstanding, “[a valid] guilty plea waives all non-jurisdie-tional rights or defects, ... including the right to a speedy trial.” Fulton v. State, 844 So.2d 1171, 1172 (¶ 4) (Miss.Ct.App. 2003).

IX. SUFFICIENT INDICTMENT

¶ 22. Finally, Stamps claims the burglary charge in the indictment was insufficient. The precise nature of Stamps’s claim is unclear. As best we can tell, Stamps reiterates his claim that he could not be charged with sexual battery and burglary, where the underlying intent of the burglary was to commit sexual battery. Essentially, this is simply a revised version of his meritless double-jeopardy claim. In any event, a guilty plea waives all non-jurisdictional defects in an indictment. Maggitt v. State, 26 So.3d 363, 365 (¶ 10) (Miss.Ct.App.2009). There is no merit to this issue.

¶ 23. THE JUDGMENT OF THE SHARKEY COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SHAR-KEY COUNTY.

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

      . Stamps had previously been convicted of grand larceny in 1998. During 2007, he was convicted of burglary and aggravated assault.


author: MAXWELL, J.,

text:
    April SERRANO, Appellant v. LAUREL HOUSING AUTHORITY, Appellee.
    No. 2013-CA-01750-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2014.
    K. Douglas Lee, attorney for appellant.
    Steven Lloyd Lacey, Madison, attorney for appellee.
    Before LEE, C.J., ROBERTS, CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. April Serrano claimed she was injured when the fluorescent light box attached to the kitchen ceiling of her apartment partially fell, causing patches of drywall to land on her. No one disputes the light box and drywall fell. But Laurel Housing Authority, the government entity that managed the apartment complex, hotly contested that it knew or should have known the heavy light box posed a danger of falling.

¶ 2. To recover damages, Serrano had to prove Laurel Housing had actual or constructive notice the light box was a dangerous condition. And to prevent Laurel Housing from enjoying sovereign immunity under Mississippi Code Annotated section 11-46-9(1)(v) (Rev. 2012), she had to overcome Laurel Housing’s claim it had no notice about the danger her light posed before it fell.

¶ 3. As this was a bench trial, it was the judge who was tasked with sifting the conflicting testimony about Laurel Housing’s notice that the light fixture posed a danger. And in the end, the judge concluded the testimony that Laurel Housing had no notice was more credible than Serrano’s witnesses’ claims that it did. Because there is substantial record evidence supporting this finding of fact, we must defer to it. We thus affirm the judgment in favor of Laurel Housing based on the immunity provided by section 11-46-9(1)(v).

Background

¶ 4. After the light box and drywall fell, Serrano sued Laurel Housing for breach of implied warranty of habitability and premises-liability-based negligence. The circuit judge ordered a bifurcated trial. The issue of liability would be tried first. And if Serrano succeeded, her evidence on the extent of her damages would be presented after.

I. Evidence at Trial

¶ 5. The evidence presented during the one-day bench trial centered around notice. Serrano argued Laurel Housing knew the light boxes — with their four fluorescent light tubes and ballasts — were too heavy for the spot in the kitchen ceiling where they had been hung. Apparently, all units in Serrano’s complex had at some point been renovated. And as part of those renovations, the same type of fluorescent light had been installed in each apartment. Though Serrano conceded that Laurel Housing had not installed the light boxes, Serrano claimed Laurel Housing at some point realized these fixtures were too heavy for the brittle drywall and had been in the process of replacing them.

¶ 6. To support her claims, Serrano first called Dexter Scott, ex-maintenance mechanic for Laurel Housing. Scott testified he had worked on the building where Serrano lived and had gone to her apartment after the light box and ceiling fell. According to Scott, other similar fixtures had fallen before, because they were only attached to the drywall, not the ceiling joists. And when those fixtures had fallen, the maintenance staff would replace the light ^boxes with smaller, lighter fixtures that only used two incandescent bulbs. Scott testified Laurel Housing had known about the problem for at least five years. Scott further testified he had worked on Serrano’s apartment before the accident, caulking and painting cracks in her kitchen ceiling.

¶ 7. Serrano also called her husband, who was not in the apartment when the ceiling fell, but came by shortly after. Her husband testified he did not see Scott in the apartment that afternoon. But he did talk with L.M. Ducksworth, the maintenance supervisor. And Ducksworth told him the reason the ceiling fell was that the light was too heavy for the drywall and that Laurel Housing was going to swap out the light boxes for smaller fixtures throughout the complex. But her husband admitted Ducksworth never said Laurel Housing had changed out light boxes in the past based on this same problem.

¶ 8. Ducksworth, who was still the maintenance supervisor at the time of trial, was called as an adverse witness. He testified that he went to Serrano’s apartment as soon as he got the call about her ceiling falling. He removed the dangling light fixture completely, as well as the damaged drywall. After he repaired the ceiling, he put up a smaller incandescent fixture, which was easier to install.

¶ 9. Ducksworth testified he did not remember any other light boxes ever falling before Serrano’s. While he had replaced other fluorescent light boxes with smaller fixtures in other units, he denied the replacement was due to their being improperly installed or dangerous. He also flatly denied telling Serrano’s husband that, based on other fixtures falling in the past, he knew her fixture fell because it was too heavy.

¶ 10. Serrano herself testified. She said she had been living in the apartment for five years when the accident occurred. When she first moved in, she noticed cracks in the ceiling, which she reported and which Laurel Housing repaired. Later on, she made a second report about more cracks and sagging drywall. But she admitted she never reported to Laurel Housing that she thought the light box was going to fall.

¶ 11. Like her husband, she admitted she had not seen Scott come to her apartment after she reported the ceiling falling. But she too spoke to Ducksworth, who explained the reason the light box fell was that it had been improperly hung. Ducks-worth also told her Laurel Housing planned to replace all the light boxes in the future.

¶ 12. The final witness was Ruby Jones, property manager for Laurel Housing. Jones testified there was no paperwork or records documenting any light boxes falling and being replaced before Serrano’s fell. Nor did Jones have any recollection of something like that ever happening before.

II. Conclusion Drawn from Facts

¶ 13. Because this was a MTCA case, there was no jury. Instead, the trial judge was the fact-finder. See Miss.Code Ann. § 11-46-13(1) (Rev. 2012). As such, it was his task to resolve the disputed testimony and any credibility issues. Evidently, he did not find Scott’s testimony credible. He concluded Serrano failed to prove Laurel Housing had notice — before Serrano’s ceiling fell — that the fluorescent light was a dangerous condition. And because Laurel Housing had no notice, the judge held Laurel Housing was immune from liability under section 11-46-9(1)(v).

¶ 14. Alternatively, the judge found Laurel Housing enjoyed discretionary-function immunity, based on his conclusion that apartment maintenance was a discretionary function. See Miss.Code Ann. § 11^6-9(l)(d).

Discussion

I. Trial Judge’s Finding of Fact

¶ 15. On appeal, Serrano claims the judge’s finding of fact of no notice was manifestly wrong. She seizes on Scott’s testimony, which she argues the trial judge improperly discredited. Serrano suggests that if anyone lacked credibility, it was Ducksworth, whose status as a current employee gave him more reason to protect his employer. While we understand Serrano’s argument, this court is not tasked with engaging in witness-credibility questions or reweighing witness testimony. Banks v. Lockhart, 119 So.3d 370, 373 (¶ 11) (Miss.Ct.App.2013) (“Determining the credibility of a witness or the weight of their testimony is not the province of this Court.”). Instead, the trial judge “has the sole authority in determining credibility of witnesses when sitting as a trier of fact in a bench trial.” Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 146 (¶ 20) (Miss.2007) (citing Pride Oil Co. v. Tommy Brooks Oil Co., 761 So.2d 187, 193 (¶ 18) (Miss.2000)). Thus, it was the trial judge who “had the prerogative to place whatever weight he chose on [each witness’s] testimony.” Id. The only question this court asks is — After considering the entire record, was there substantial evidence to support the trial judge’s findings? Miss. Dep’t of Transp. v. Trosclair, 851 So.2d 408, 412-13 (¶ 10) (Miss.Ct.App.2003). And here, we find there was.

¶ 16. Laurel Housing’s long-term maintenance supervisor, Ducksworth, and its property manager for almost two decades, Jones, both testified they were not aware of other light boxes falling before Serrano’s. While Ducksworth had replaced light boxes in the past, he did not say it was because he knew they were too heavy, improperly installed, or otherwise dangerous.

¶ 17. Serrano makes much of the fact the fluorescent fixture was not rehung after the ceiling was repaired. She argues the fact a smaller, lighter fixture was put up instead proves Laurel Housing knew before her fixture fell that it was too heavy. But as the trial judge pointed out to Serrano’s counsel, evidence of a subsequent remedial measure is not admissible to prove negligence or a need to warn. See M.R.E. 407. In other words, just because Laurel Housing decided not to rehang the heavy fixture after it pulled away from the ceiling does not necessarily prove it somehow had notice before the fixture fell that it was too heavy or otherwise posed a danger.

¶ 18. While it is possible a reasonable fact-finder may have found the opposite— that Laurel Housing did have actual or constructive notice — the finding the trial judge made after considering the competing evidence — that Laurel Housing had no notice — was not “manifestly wrong.” Trosclair, 851 So.2d at 413 (¶ 10). Because this finding of fact was based on substantial evidence, we leave this finding undisturbed on appeal. See id.

II. Immunity Under Section 11-46-9(1) (d)

¶ 19. Because Laurel Housing lacked actual or constructive notice of the dangerous condition, it was immune under section 11-46-9(1)(v). This provision reinstates sovereign immunity for tort claims:

Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against[.]

Miss.Code Ann. § 11-46-9(1)(v). Serrano’s claim arose out of an alleged injury caused by a dangerous condition in her government-managed apartment. So under this provision, Laurel Housing cannot be held liable if it neither caused nor had notice of the dangerous condition.

¶ 20. As Serrano states in her brief, she “did not attempt to prove that [Laurel Housing] actually created the dangerous condition[.]” So this first requirement for immunity under subsection (v) is not in dispute. And as discussed above, the trial judge found Serrano failed to prove Laurel Housing had actual or constructive notice of the condition. See Hodges v. Madison Cnty. Med. Ctr., 929 So.2d 381, 384(10) (Miss.Ct.App.2006) (listing the plaintiffs proof that government entity had actual or constructive notice of the dangerous condition as one way to “defeat” the defense of sovereign immunity). Therefore, Laurel Housing also met the second requirement for immunity under subsection (v), meaning it could not be held liable for Serrano’s claim.

III. No Immunity Under Section 11-46-9(1)(d)

¶ 21. The application of one exception to the general waiver of sovereign immunity is sufficient for Laurel Housing to be immune. Fair v. Town of Friars Point, 930 So.2d 467, 471 (¶9) (Miss.Ct. App.2006). But since the judge also found Laurel Housing enjoyed discretionary-function immunity, it is worth noting why this determination is now error, based on Little v. Mississippi Department of Transportation, 129 So.3d 132, 137-38 (¶¶ 10-11) (Miss.2013). In that case, the Mississippi Supreme Court expressly overruled its line of previous cases that had held that, “while a certain act may be mandated by statute, how' that act is performed can be a matter of discretion.” Id. at 137 (¶ 10). Instead, “where a statute mandates the government or its employees to act, all acts fulfilling that duty are considered mandated as well, and neither the government nor its employees enjoys immunity.” Id. at 138 (¶10).

¶ 22. One of the reasons our Legislature created housing authorities and empowered them to manage housing projects was to “provid[e] ... safe and sanitary dwelling accommodations for persons of low income[.]” Miss.Code Ann. § 43-33-3 (Rev. 2009). Built into the Legislative definition of a “housing project” is that it is a “work or undertaking ... to provide decent, safe and sanitary urban or rural dwellings, apartments, or other living accommodations for persons of low income[.]” Miss.Code Ann. § 43 — 33—l(j) (Rev. 2009) (emphasis added). So Laurel Housing’s duty to provide safe apartments for its low-income residents is clearly mandated by the Legislature.

¶ 23. This means, following Little ⅛ logic, “all acts in furtherance of that [mandated] duty ... are ministerial unless ... another statute makes a particular act discretionary.” Little, 129 So.3d at 138 (¶ 11). Because any act of maintaining or repairing the apartments — or failing to maintain or repair — fell under Laurel Housing’s duty to provide its residents a safe dwelling, it cannot be said the decision to not repair or replace a light fixture was the exercise of a discretionary function.

¶24. In the trial judge’s defense, his final judgment was entered several weeks before Little, and he was not asked to revisit his decision in light of the supreme court’s change of the law. Still, his determination that apartment maintenance was an exercise of a discretionary function is now erroneous based on that case.

¶ 25. THE JUDGMENT OF THE JONES 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 FAIR, JJ„ CONCUR. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Serrano neither alleged nor tried to prove that Laurel Housing caused the dangerous condition (i.e., was the one who improperly hung the light box).

      . Serrano filed suit within the one year,- as required by the Mississippi Tort Claims Act (MTCA). See Miss.Code Ann. § 11-46-11(3) (Rev. 2012) (providing one year to commence a lawsuit under the MTCA); see also Miss. Code Ann. § 11-46-7 (Rev. 2012) (declaring the MTCA to be the exclusive remedy for tort claims against a governmental entity).

      . Even if Laurel Housing were a private . apartment complex, Serrano still would have lost at trial based on the fact-based conclusion that Laurel Housing lacked notice of the dangerous condition.
      Serrano had two theories of liability — (1) Laurel Housing breached its implied warranty of habitability, and (2) Laurel Housing breached its duty to her, as an invitee on its property, to keep the premises reasonably safe and, when not reasonably safe, to warn her about any dangerous condition. Both of the theories required Serrano to prove Laurel Housing knew about the dangerous condition of the light box.
      Under the implied warranty of habitability, Laurel Housing had a duty "to provide a reasonably safe premises at the inception of a lease, and to exercise reasonable care to repair dangerous defective conditions upon notice of their existence by the tenant." Dulin v. Sowell, 919 So.2d 1010, 1012 (¶5) (Miss.Ct. App.2005) (emphasis added) (quoting O’Cain v. Harvey Freeman and Sons, Inc. of Miss., 603 So.2d 824, 833 (Miss.1991) (Sullivan, J. concurring)). So Laurel Housing’s duty to repair the dangerous condition was qualified by Serrrano’s "duty to provide notice to ... her landlord” of the dangerous defective condition in need of repair. Id. at 1013 (¶ 6). As part of his opinion, the trial judge found Serrano “never put the Laurel Housing Authority on notice of any alleged dangerous condition during her time as a resident in the apartment at issue[.]” This finding was supported by Serrano’s own admission on the witness stand. Thus, Serrano failed to prove her implied-warranty-of-habitability claim.
      Under premises-liability law, Laurel Housing owed Serrano, a business invitee, the duty "to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition or to warn of dangerous conditions not readily apparent, which the owner knows of, or should know of, in the exercise of reasonable care." McCullar v. Boyd Tunica, Inc., 50 So.3d 1009, 1012 (¶ 12) (Miss.Ct.App.2010) (emphasis added). So to prove her claim that Laurel Housing breached this duty, Serrano had to show: (1) Laurel Housing’s negligent act caused the dangerous condition, or (2) Laurel Housing had actual knowledge of the dangerous condition but failed to protect or warn Serrano, or (3) the dangerous condition remained long enough to provide Laurel Housing with constructive knowledge. Id. at 1013 (¶ 13). As Serrano never claimed Laurel Housing negligently installed the light box, once again Laurel Housing's knowledge is key. Serrano had to prove Laurel Housing knew or should have known about the dangerous condition posed by the light box but failed to act. And because the trial judge found Serrano failed to prove Laurel Housing had the requisite knowledge, even without MTCA immunity, her premises-liability claim still fails.


author: FAIR, J.,

text:
    Clarence Dwayne JEFFERSON a/k/a Clarence D. Jefferson a/k/a Clarence Jefferson, Appellant, v. STATE of Mississippi, Appellee.
    No. 2013-KA-02048-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2014.

      Office of State Public Defender by Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, C.J., CARLTON and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Clarence Jefferson was convicted of felony DUI, which required proof that he was driving while intoxicated and that he had two prior DUI convictions within the last five years. Jefferson contends that the evidence against him was insuffi-* cient in both respects. We disagree, so we affirm his conviction and sentence.

DISCUSSION

1. The Sufficiency of the Evidence Test

¶ 2. When the sufficiency of the evidence is challenged, the issue before this Court on appeal 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.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). “[W]here the evidence fails to meet this test it is insufficient to support a conviction.” Id.

¶ 3. But, as the United States Supreme Court has explained, a court should not “ask itself whether it believes that the evidence established guilt beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (emphasis in original; internal quotation marks omitted). “Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson, 443 U.S. at 315, 99 S.Ct. 2781).

¶ 4. A reviewing court must reverse the conviction and render a judgment of acquittal if “the facts and inferences ... point in favor of the defendant on any [one] element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty.” Id. (citation and internal quotation marks omitted).

2. The Definition of Felony DUI

¶ 5. The crime of felony DUI is defined by statute. Jefferson was charged under Mississippi Code Annotated section 63-11-30 (Rev. 2013), which at the time of the alleged offense provided in relevant part:

(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; [or] ... (c) has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons who are above the legal age to purchase alcoholic beverages under state law.. .■.

While the first and second DUI offenses are misdemeanors with a lesser punishment, Jefferson was charged under subsection (2)(c), which makes it a felony to commit a third or subsequent DUI within a five-year period (quoted in relevant part):

[F]or any third or subsequent conviction of any person violating subsection (1) of this section, the offenses being committed within a period of five (5) years, such person shall be guilty of a felony and fined not less than Two Thousand Dollars ($2,000.00) nor more than Five Thousand Dollars ($5,000.00), shall serve not less than one (1) year nor more than five (5) years in the custody of the Department of Corrections; provided, however, that for any such offense which does not result in serious injury or death to any person, any sentence of incarceration may be served in the county jail rather than in the State Penitentiary at the discretion of the circuit court judge. The minimum penalties shall not be suspended or reduced by the court and no prosecutor shall offer any suspension or sentence reduction as part of a plea bargain. The law enforcement agency shall seize the vehicle operated by any person charged with a third or subsequent violation of subsection (1) of this section, if such convicted person was ‘driving the vehicle at the time the offense was committed. Such vehicle may be forfeited in the manner provided by Sections 63-11-49 through 63-11-53. Except as may otherwise be provided by paragraph (e) of this subsection, the Commissioner of Public Safety shall suspend the driver’s license of such person for five (5) years.

¶ 6. Operating a vehicle while under the influence of intoxicating liquor and having two convictions for DUIs committed within the last five years are both elements of the offense of felony DUI. See Williams v. State, 991 So.2d 593, 605 (¶ 40) (Miss.2008). Since Jefferson must be acquitted if he prevails in showing insufficient evidence of either element of the offense, we will address the evidence that supports each element separately. See Bush, 895 So.2d at 843 (¶ 16).

3. Driving Under the Influence

¶ 7. The record from the trial indicates that Jefferson was stopped at a safety checkpoint in Columbia, Mississippi, at around 9:45 p.m. on October 15, 2012, a Friday night. Officer Justin McKenzie of the Columbia Police Department, a DUI enforcement officer, testified that he encountered Jefferson after he was stopped. Officer McKenzie, who is a certified field sobriety test instructor, testified at length as to his observations and investigation of Jefferson:

A. When I approached [Jefferson] and beg[an] conversing] with him, he seemed pretty nervous. He was kind of pacing back and forth. He had bloodshot eyes. I could smell the aroma of intoxicáting beverages coming from his person. And based upon that, I deemed that I needed to perform some field sobriety tests and possibly a portable Breathalyzer. I used the PBT, preliminary breath test, and it indicated positive for the presence of alcohol. From there I moved on to the standardized field sobriety testing.
Q. And you stated before that you had .specific training in these field sobriety tests?
A. Yes, ma’am.
Q. Which tests did you perform first?
A. To begin with, the horizontal gaze nystagmus. During that test I received six of the six clues, plus vertical.
Q. Let’s back-up. Can you explain to the jury what the horizontal gaze nys-tagmus is?
A. It’s commonly — a lot of folks will say the finger test or the pen test, where they are asking you to follow a certain stimulus, be it your finger, a pen, a small light, or anything of that nature. Of course, the horizontal and the gaze is referred to as you are going in a horizontal movement. There’s three phases to . that test. Then you want to check for vertical gaze nystagmus.
Q. When you performed the test, what are you looking for specifically?
A. You’re looking for the nystagmus. Nystagmus is the involuntary jerking of the eyes.
Q. You said you noted six of six clues. How many possible clues are there?
A. There are six clues total. That’s based upon a person with two eyes, because each — you are looking for three clues, and then you have two eyes. So that’s where you justify the six of the six. That’s based on the criteria that NHTSA provides us, which is the National Highway Traffic Safety Administration.
Q. What are the three clues that are six total?
A. The first thing you are looking for is the lack of smooth pursuit. The second is distinct and sustained nys-tagmus at maximum deviation. And the third is onset prior to 45 degrees.
Q. Can you explain that in a way that we can understand it?
A. The first one is just — to begin the test, you would do an equal tracking format, which is basically just moving it two times in both directions at roughly the same speed. Just a common pace back and forth. You’re making sure both eyes will track together so you can perform the test. From there you check for the lack of smooth pursuit, which is two more passes at basically the same pace. You are making sure that both eyes are tracking from side to side together. While you are watching them — I start with the left eye first, because you always start with the suspect’s left side. You move to the left, to the right, back to the left, then back to the right, and then back to the center. During the first pass I’m looking at the left eye. The second pass, I’m looking at the right eye. You are looking for involuntary jerking as the eye moves along. It was very distinguished that night with Mr. Jefferson.
Q. After you performed the horizontal gaze nystagmus test, what did you do next?
A. I attempted to do the walk-and-turn, which we were able to complete, but it was without good cooperation from Mr. Jefferson. Mr. Jefferson made two different attempts to go back to his vehicle. Both times he attempted to get — not necessarily get in, but he was reaching into the vehicle for whatever reason. He was instructed several times not to go back to the vehicle, to remain where he was.
From that point I would have proceeded with the instruction stage, which is to basically imagine there’s a line, if there’s not one available, put his left foot on that line and the right foot in front heel to toe and remain in that position. Mr. Jefferson continuously attempted to start the test and do it on his own. We run across that on various occasions with different impaired people that believe they already know the test, so they want to go ahead and do the test. The instructions were simple: To remain in that position. The first clue that was actually noted when the test was complete was that he could not maintain the balance and he began the test before instructed to do so. Mr. Jefferson — upon completing the test, I collected six of the eight clues available, and that is: He used his arms to balance; he missed heel to toe; he stepped off the line to the left and to the right; when he made the turn, he made an incorrect turn by making a wide radius turn, and then he took three steps backwards in an attempt to regain his balance before proceeding with nine steps in the other direction.
Q. Did you perform any other field sobriety tests?
A. I attempted the one-leg stand, which is the final stage of the standardized field sobriety. After he attempted to do the test twice incorrectly, the test was discontinued.
Q. After you discontinued the field sobriety tests, what did you do next?
A. I placed him into custody and transported him to Marion County jail.

¶ 8. After his arrest, Jefferson initially refused to have his blood alcohol concentration tested, but he eventually consented to test his breath with a machine called the Intoxilyzer 8000. However, the device would not self-calibrate properly and could not be used. According to Officer McKenzie, when it became clear the Intoxilyzer 8000 would not work, Jefferson insisted on using it. He did not respond to offers to have blood drawn for direct testing.

¶ 9. Officer McKenzie also testified that Jefferson admitted he had “a few earlier,” apparently referring to alcoholic beverages. McKenzie concluded, from his observations and from his training and experience, that Jefferson was under the influence.

¶ 10. Mississippi’s DUI statute provides that proof of driving under the influence may be shown either by the defendant’s blood alcohol content, called “per se DUI,” or by evidence sufficient to show the defendant was “under the influence of intoxicating liquor,” — common law DUI. “Common law DUI is proven when a defendant’s blood alcohol results are unavailable ... but there is sufficient evidence to [show] that the defendant operated a motor vehicle under circumstances indicating his ability to operate the vehicle was impaired by the consumption of alcohol.” Young v. State, 119 So.3d 309, 315 (¶ 19) (Miss.2013) (citation omitted). Since there were no blood alcohol test results available in this case, Jefferson’s prosecution was under the common law DUI theory.

¶ 11. Officer McKenzie testified that Jefferson admitted he had been drinking earlier that night; that he smelled of alcoholic beverages, had bloodshot eyes, appeared nervous, and acted obstinately; and that a portable breath test was positive for alcohol. These are all evidence of intoxication. See Saucier v. City of Poplarville, 858 So.2d 933, 936 (¶ 14) (Miss.Ct. App.2003). Officer McKenzie also described at length how Jefferson failed or could not complete all three field sobriety tests, including the walk-and-turn, the horizontal-gaze-nystagmus, and the one-leg-stand. Field sobriety tests can also be evidence of intoxication. See Deloach v. City of Starkville, 911 So.2d 1014, 1018 (¶ 16) (Miss.Ct.App.2005).

¶ 12. Jefferson exercised his right not to testify in his own defense, instead relying on the argument that the prosecution failed to meet its burden to prove him guilty beyond a reasonable doubt. On appeal, he points out that no one testified that his operation of the vehicle appeared to be affected. He notes that his performance of the field sobriety tests could have been affected by conditions such as arthritis or poor footwear, though there was no evidence this was actually the case. Jefferson further notes that Officer McKenzie admitted the encounter could have been recorded on video, but was not.

¶ 13. All of Jefferson’s arguments are actually directed to the weight of the evidence rather than its sufficiency. In other words, Jefferson attempts to place the evidence of guilt into doubt. But conflicts in the evidence, or conflicting inferences that could be drawn from the evidence, were for the jury to resolve as the trier of fact. Since the jury convicted Jefferson, on appeal this Court must view the evidence “in the light most favorable to the prosecution,” and ask only whether “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) (citation omitted).

¶ 14. After reviewing the record, we find the evidence we have discussed above, viewed in its totality, was sufficient for a reasonable juror to conclude beyond a reasonable doubt that Jefferson “operated a motor vehicle under circumstances indicating his ability to operate the vehicle was impaired by the consumption of alcohol.” Young, 119 So.3d at 315 (¶ 19) (citation omitted). Jefferson’s arguments to the contrary are without merit.

4. Prior DUI Convictions

¶ 15. The other contested element of Jefferson’s guilty verdict is whether he had been convicted of two other DUIs committed in the previous five years. To prove this element, the prosecution called two witnesses, custodians of court records from two different jurisdictions in Mississippi.

¶ 16. Melissa Creel was a deputy court clerk at the Municipal Court of Petal. She provided the foundation for introducing a certified abstract of a conviction of “Clarence D Jefferson” for a DUI committed on January 17, 2010. The abstract contained various identifying information such as an address in' Columbia, Mississippi, Jefferson’s race and sex, the tag number and make of his vehicle, and his social security number and date of birth. It indicated “NL” for the driver’s license, presumably indicating “no license.”

¶ 17. Wynette Parkman was a clerk who oversaw the Marion County Justice Court clerk’s office. She authenticated a certified abstract of conviction and various accompanying documents for a DUI committed by “Jefferson Clarence Dwayne” on January 18, 2010. The abstract also contained identifying information, but it was not exactly the same as the Petal abstract. Jefferson’s race and sex were indicated and were the same. The same day and month were given for the birth, but the year was different — 1969 on the Petal abstract and 1964 on the Marion County abstract. A different address was shown, but both were in Columbia. The Marion County abstract had no box for a social security number, but it gave a driver’s license number that was the same as Jefferson’s social security number on the Petal abstract. No vehicle information was given.

¶ 18. The ticket for the DUI in today’s case was admitted into evidence and authenticated by Officer McKenzie. It showed Jefferson’s race and sex as on the abstracts, and the same day and month of birth, with 1964 as the year. Jefferson’s license address was the same address as on the Marion County abstract. Jefferson’s driver’s license number was the same as the driver’s license number on the Marion County abstract and the social security number on the Petal abstract. Officer McKenzie testified that this was also Jefferson’s social security number. A vehicle was indicated, but it was different from the one on the Petal abstract.

¶ 19. Jefferson’s argument on appeal is that because some of the information on these documents is conflicting — primarily the year of birth, 1964 versus 1969 — the jury did not have before it sufficient evidence to conclude it was the same Clarence Jefferson in each case. We disagree.

All of the documents bear the same social security or driver’s license number, and Officer McKenzie testified that it was both Jefferson’s social security number and driver’s license number. It is also a matter of common knowledge that, until recently, Mississippi often used a person’s social security number as his driver’s license number. The differing year of birth can be explained as a scrivener’s error, given the similarity of the numerals “4” and “9” and Creel’s testimony that the Petal abstract was entered into a computer from a handwritten ticket. As to Jefferson’s address, it is true that the addresses on the two abstracts differ. This is concerning because the abstracts refer to offenses that occurred on consecutive days— January 17 and 18, 2010. However, .the source of the addresses is not given; they could have come from Jefferson himself, from his driver’s license, or from some other source. Addresses are easily changed and one’s address as indicated on a.license or kept in a database can be outdated. In fact, one of the abstracts indicates “NL” for the license number, presumably indicating that Jefferson had no license with him when he was arrested. Given this, that the addresses were different goes to the weight of this evidence rather than its sufficiency.

¶ 20. “It [is] within the jury’s province to draw reasonable inferences from the evidence based on their experience and common sense.” Broomfield v. State, 878 So.2d 207, 215 (¶ 30) (Miss.Ct.App.2004). Jefferson’s name, social security/driver’s license number, day and month of birth, sex, race, and city of residence appear on both abstracts. There is some conflicting data, but it is easily explained; so we are satisfied that a reasonable jury could have found that Jefferson is the person who was convicted of both prior offenses. This issue is without merit.

CONCLUSION

¶ 21. Because there was sufficient evidence for a reasonable jury to find every element of the offense, the question of Jefferson’s guilt or innocence was properly entrusted to the jury. This Court cannot disturb the jury’s verdict on appeal.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY OF CONVICTION OF FELONY DUI AND SENTENCE AS A HABITUAL OFFENDER OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH ONE YEAR SUSPENDED AND FOUR YEARS TO SERVE, AND TO PAY A $1,000 FINE AND $1,000 TO THE MARION COUNTY PUBLIC DEFENDER’S FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

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

      . It should be noted that this is the day after the date of the offense on the other abstract.


author: IRVING, P.J.,

text:
    Joshua Daniel GRAHAM a/k/a Joshua D. Graham a/k/a, Joshua Graham, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-01040-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2014.
    Office of State Public Defender by Mollie Marie McMillin, attorney for appellant.
    Office of the Attorney General by Melanie Dotson Thomas, attorney for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. A DeSoto County jury found Joshua Graham guilty of aggravated assault upon a police officer in violation of Mississippi Code Annotated section 97-3-7 (Rev. 2014). Graham filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied. Graham appeals, challenging the weight of the evidence presented against him during trial.

¶ 2. Finding no error, we affirm.

FACTS

¶ 8. During the early morning of February 27, 2012, Officer Mitzi Stewart, a police officer with the Southaven Police Department, spotted a blue Ford Crown Victoria, with no tag, driving slowly through the parking lot of a convenience store located near Church Road in Southa-ven, Mississippi. The store was closed at the time. After the car came to a stop, Officer Stewart parked her patrol car behind the car and radioed to dispatch. As Officer Stewart did this, Graham exited the car and walked towards Officer Stewart’s patrol car. The driver-side door of Graham’s car remained open. Officer Stewart exited her patrol car and initiated dialogue with Graham, who informed her that he was searching for an air machine in order to put air in his front driver-side tire. Upon inspection, Officer Stewart determined that the tire was not low. Graham stated that he was a resident of Memphis, Tennessee, and that he was in the area visiting his girlfriend, who was a student at a local college. Upon inquiry by Officer Stewart, Graham was unable to provide his girlfriend’s name, the name of the college she attended, or her major. Graham also told Officer Stewart that the car Graham was driving belonged to Graham’s girlfriend. When asked to provide identification, Graham stated that his girlfriend had his license in her bag.

¶ 4. Officer Stewart asked Graham if she could search him for weapons, and Graham stated that she could. She conducted a pat-down of Graham’s person as he stood toward the rear of his car. Officer Stewart felt a small baggy in Graham’s pants pocket. She asked Graham to empty his pockets, and he complied, revealing what appeared to Officer Stewart to be marijuana and giving Officer Stewart probable cause to arrest him. As she reached for her handcuffs to arrest Graham, he dashed to his car and entered the car through the open driver-side door.

¶ 5. During trial, Officer Stewart testified that as Graham dashed to the front of his car, she attempted to grab him with her left hand. As Graham entered his car, he pulled Officer Stewart into the car with him, trapping her right arm behind his back. According to Officer Stewart, the upper part of her body was inside Graham’s car, while the lower part was outside the car. Officer Stewart stated that while she was in this position, Graham began to accelerate slowly, forcing her to run beside the car to avoid being dragged on the pavement. At some point, Graham turned the car onto Church Road. Officer Stewart testified that as Graham increased his speed, she made the decision to jump inside the car, landing in Graham’s lap. The driver-side door remained open, and the car continued to travel down Church Road. Inside the moving car, a physical altercation ensued, and according to Officer Stewart, Graham repeatedly punched her in her face with his fist and kicked her numerous times, causing bruising, black eyes, and a broken nose. These injuries were reflected in photographs that were presented by the State during trial and admitted into evidence. Officer Stewart testified that she tried to gain control of the car as Graham continued to physically assault her and as she pleaded for her life. At some point, Officer Stewart was able to retrieve her weapon, request backup, and subdue Graham, whom she held at gunpoint until backup arrived. Officer Stewart was transported to a local hospital where she was treated for her injuries.

¶ 6. Officer Jeff Logan, who served as Officer Stewart’s backup, testified that he spoke with Graham at the Southaven Police Department where, according to Officer Logan, Graham admitted that he had attempted to flee from Officer Stewart and that he had struck Officer Stewart in her face. Officer Logan stated that Graham denied striking Officer Stewart more than once. Officer Logan identified physical evidence recovered from scene of the incident, including a “green leafy substance consistent with marijuana.”

¶7. After the State rested its case, Graham did not move for a directed verdict as to the aggravated-assault charge, although the circuit court indicated that the State had made a prima facie case as to the aggravated-assault charge. Following this ruling, Graham testified in his own behalf.

¶ 8. According to Graham, at no point during the incident was any part of Officer Stewart’s body outside the car. Graham testified that, in hitting Officer Stewart, he was simply attempting to “defend” himself, but he insisted that he had hit her only once. Graham had no explanation for Officer Stewart’s other injuries. On cross-examination, Graham also insisted that Officer Stewart voluntarily entered his car during his attempt to evade arrest.

¶ 9. During trial, the circuit court instructed the jury:

If you find that the State has failed to prove, beyond a reasonable doubt, any one or more of the elements of the crime of Aggravated Assault on a Law Enforcement Officer, you will find the Defendant not guilty of this original charge and may proceed with your deliberations to decide whether the State has proven, beyond a reasonable doubt, all of the elements of the lesser offense of Simple Assault on a Law Enforcement Officer.
If the State has failed to prove, beyond a reasonable doubt, any one or more of the elements of the crime of Simple Assault on a Law Enforcement Officer, then you shall find the Defendant, Joshua Daniel Graham, not guilty.

¶ 10. Following trial, Graham filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, challenging the weight and the sufficiency of the evidence. The circuit court denied that motion. As stated, on appeal, Graham challenges the weight of the evidence presented against him during trial.

DISCUSSION

¶ 11. The State argues that Graham’s appeal is procedurally barred because Graham never moved for a directed verdict as to the aggravated-assault charge. Apparently, the State is referring to Graham’s failure to move for a directed verdict at the close of the evidence, as the record is clear that Graham filed a post-trial motion challenging both the weight and sufficiency of the evidence offered against him. The filing of ,the post-trial motion for a new trial preserved the issue for review on appeal. Collins v. State, 594 So.2d 29, 36 (Miss.1992) (citing Jackson v. State, 423 So.2d 129, 131 (Miss.1982)). Therefore, we find that Graham is not procedurally barred from raising on appeal the issue as to the weight of the evidence. Nevertheless, we find this issue to be without merit.

¶ 12. “When reviewing challenges to the weight of the evidence, we ‘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.’ ” Cannon v. State, 141 So.3d 442, 444 (¶ 9) (Miss.Ct.App.2013) (quoting Vaughn v. State, 926 So.2d 269, 271 (¶4) (Miss.Ct.App.2006)). The evidence must be viewed in the light most favorable to the verdict. See Long v. State, 52 So.3d 1188, 1192 (¶ 11) (Miss.2011).

¶ 13. Section 97-3-7 states, “A person is guilty of aggravated assault if he ... attempts to cause or purposely or knowingly causes 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 (Rev. 2014). The penalty is enhanced if the assault is upon a law enforcement officer. Miss. Code Ann. § 97-3-7(14)(a) (Rev. 2014).

¶ 14. Graham argues that the evidence shows that he did not cause or attempt to cause serious bodily injury to Officer Stewart with a deadly weapon or with other means likely to produce death or serious bodily harm. According to Graham, his fists and feet, which he used to cause injury to Officer Stewart, were not deadly weapons and were not means likely to produce death or serious bodily harm. Additionally, Graham insists that the evidence only supports a conviction for simple assault because Officer Stewart’s injuries were minor. Graham asks this Court to reverse and remand this case for a new trial or, alternatively, to remand this case with instructions to convict him on a charge of simple assault upon a law enforcement officer.

¶ 15. In response, the State argues that the evidence revealed that Officer Stewart was severely injured by Graham during the altercation, and that she had to receive medical treatment for her injuries. Citing Jackson v. State, 594 So.2d 20, 23 (Miss.1992), the State argues that the jury properly found that Graham’s “intentional actions were likely to produce serious bodily harm.” We agree. As evidenced by Jury Instruction 11, the jury was given the opportunity to consider the lesser offense of simple assault. In viewing the evidence in the light most favorable to the verdict, we find that the verdict in this case was not so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Accordingly, we affirm.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF AGGRAVATED ASSAULT UPON A LAW ENFORCEMENT OFFICER AND SENTENCE OF EIGHTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, FOLLOWED BY TWELVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A $1,000 FINE AND $100 TO THE CRIME VICTIMS’ COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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

      . Graham was also charged with kidnapping in violation of Mississippi Code Annotated section 97-3-53 (Rev. 2014). The jury acquitted him of this charge.

      . In Jackson, the defendant assaulted his ex-wife by "hit[ting] her in the head with his fists 'real hard,' and calling] her a ‘stupid b-.’ ” Jackson, 594 So.2d at 22. The defendant banged his ex-wife's head against a wall repeatedly, creating a split in the wall. Id. The ex-wife was later taken to the emergency room, complaining of a severe headache. Examinations revealed that she could not hear out of her left ear. Id. She was treated for "multiple bruises and contusions to her [body,] a subconjunctival hemorrhage of the left eye[,] and a definite rupture of the left eardrum[.]” Id. Our supreme court held that "a violent and aggravated assault committed with one's fists may constitute [aggravated assault].” Id. at 23.