author: LAMAR, Justice,

text:
    Malcolm Clifton WEEKS a/k/a Malcolm Clifton Weeks, Sr. a/k/a Malcolm C. Weeks a/k/a Malcolm Weeks, Sr. a/k/a Malcolm Weeks v. STATE of Mississippi.
    No. 2012-KA-00988-SCT.
    Supreme Court of Mississippi.
    Aug. 22, 2013.
    Rehearing Denied Oct. 24, 2013.

      Kevin D. Camp, Jackson, attorney for appellant.
    Office of the Attorney General by Elliott Flaggs, attorney for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. Malcolm Weeks Sr. was indicted and tried for sexually abusing his fourteen-year-old daughter. He was convicted of one count of child fondling and two counts of sexual battery. On appeal, Malcolm asserts three assignments of error: 1) that the State was permitted to substantively amend his indictment; 2) that the evidence was insufficient to support the jury’s verdicts; and 3) that the jury’s verdicts were against the overwhelming weight of the evidence.

FACTS AND PROCEDURAL HISTORY

¶ 2. Malcolm Weeks Sr. and his wife “Sarah” have two children, “Wesley” and “Mary.” Prior to September 19, 2010, the family lived together in Rankin County, Mississippi. On the morning of September 19, 2010, Malcolm went into Mary’s room to wake her up for church. When Sarah saw Malcolm leaving Mary’s room, she sensed something was wrong and asked him what he was doing in there. Unsatisfied with Malcolm’s response to her question, Sarah called Mary to the front porch and asked her about Malcolm’s behavior. Initially, Mary denied that Malcolm had been doing anything wrong but eventually confessed that he had been touching her inappropriately. Sarah immediately left the house with Wesley and Mary, stopped by her parents’ house briefly, and then took Mary to the Florence police department. At the Florence police department, Mary was interviewed by William Nelson, a deputy with the Rankin County Sheriffs Department. Mary told Officer Nelson that Malcolm had touched her vagina and had performed oral sex on her that morning. She said Malcolm had been touching her inappropriately for about three months and described other incidents in which Malcolm had touched her vagina with his penis, hands, and mouth. When asked by Officer Nelson where she was abused, Mary said her bedroom. She did not tell Officer Nelson that any incidents had occurred in the family’s living room, her parents’ bedroom, or Malcolm’s truck. However, at trial, Mary testified that incidents also occurred in those three locations. She estimated that Malcolm had touched her on more than twenty separate occasions. Mary said the incidents typically occurred in the morning and that she would shower afterward. Mary had not showered the morning of September 19, 2010, so Officer Nelson picked up a sexual-assault examination kit and escorted Mary and Sarah to the University of Mississippi Medical Center (UMMC) emergency room. At UMMC, Mary was seen by a social worker named Jennifer Cook. Cook heard Mary say Malcolm had touched her vagina with his fingers and his mouth that morning. She also heard Mary describe a separate incident in which Malcolm had made her touch his penis until he ejaculated. Mary told Cook these incidents had been occurring for approximately a month and did not mention any incidents happening in Malcolm’s truck or involving a vibrator. Based on her experience, Cook testified that Mary’s disclosure was age-appropriate and consistent with a child who had been sexually abused. At UMMC, Mary also was seen by a pediatric nurse named Tier-ra Brown. Brown took Mary’s personal history and collected samples from her for the sexual-assault examination kit. Mary told Brown that Malcolm had touched her vagina that morning with his fingers, penis, and mouth, and that during a prior incident, he had touched her with a vibrator. Mary was later interviewed on September 23, 2010, by Rachel Daniels, a forensic interviewer with the Mississippi Children’s Advocacy Center. Mary told Daniels how Malcolm had sexually abused her. Mary did not tell Daniels that any incidents had occurred outside her bedroom, but Daniels testified that it would not surprise her if Mary had disclosed additional incidents and locations of abuse after the interview. Daniels found Mary’s disclosure to be consistent with that of a sexually abused child. This interview was observed by the Rankin County investigator assigned to the case, Shelia Tucker. Tucker testified that, during the interview, Mary stated that Malcolm had touched her vagina with his hand, mouth, and penis, and that he had made her touch his penis until he ejaculated. In addition to observing Daniels’s interview of Mary, Tucker reviewed Mary’s medical reports and confirmed that all of Mary’s disclosures to doctors, nurses, and social workers were consistent. Tucker also testified that she had brought the samples from Mary’s sexual-assault examination kit and a DNA sample from Malcolm to Scales laboratory for testing. At Scales laboratory, Kathryn Rodgers, a forensic DNA analyst, performed a Y-chromosome test on the vaginal and vulvar swabs taken from Mary as part of her sexual-assault examination kit. With the Y-chromosome tests, Rodgers obtained a partial profile from both the vaginal and vulvar swabs taken from Mary, confirming to a scientific certainty that there was male DNA inside Mary’s vagina. The partial profiles of both swabs were consistent with a male from Malcolm’s paternal line. Therefore, neither he nor any of his patrilineal male relatives could be excluded as the contributor of the DNA found inside and outside of Mary’s vagina. The testimony of Rodgers concluded the State’s case-in-chief. During the State’s case-in-chief, the trial judge discovered that the sexual-battery counts of the indictment tracked the wrong subsection of the sexual-battery statute. The sexual-battery statute has separate sections for victims under the age of fourteen and those between the ages of fourteen and sixteen. Subsection (c) applies to victims between the ages of fourteen and sixteen and applies if the perpetrator is more than thirty-six months older than the victim. Subsection (d) applies to victims under the age of fourteen and applies if the perpetrator is more than twenty-four months older than the victim. The sexual-battery counts of Malcolm’s original indictment recognized that Mary was fourteen at the time of the alleged criminal behavior, but then tracked subsection (d). The sexual battery counts originally read:

Malcolm Clifton Weeks ... a male human being above the age of eighteen (18) years, whose date of birth is October 18, 1970, did willfully, unlawfully, and intentionally engage in sexual penetration ... with [Mary], a female child (14) years of aye, whose date of birth is March 25, 1996, by performing cunnilingus on [Mary], at a time when Malcolm Clifton Weeks was more than twenty-four (24) months older than [Mary] ... in violation of Section 97-3-95(1) (d), Mississippi Code Annotated (1972, as amended)....

(Emphasis added.)

The State moved to amend the indictment to track subsection (c). Malcolm objected to the motion, but the trial court allowed the amendment. The sexual-battery counts, as amended, read:

Malcolm Clifton Weeks ... a male human being above the age of eighteen (18) years, whose date of birth is October 18, 1970, did willfully, unlawfully, and intentionally engage in sexual penetration ... with [Mary], a female child (14) years of age, whose date of birth is March 25, 1996, by performing cunnilingus on [Mary], at a time when Malcolm Clifton Weeks was more than thirty-six (36) months older than [Mary] ... in violation of Section 97-3-95(1) (c), Mississippi Code Annotated (1972, as amended)....

(Emphasis added.)

¶ 3. The only witness for the defense was Malcolm himself. Malcolm emphasized that he consistently had denied ever touching Mary inappropriately, that he had volunteered to assist the police in their investigation, and that he had refused to plead guilty in exchange for a lesser sentence. This testimony was consistent with that of Tucker, who had acknowledged on cross-examination that Malcolm had called her, that he had volunteered to come to the police department, and that he repeatedly had denied the allegations.

¶4. The jury found Malcolm guilty of two counts of sexual battery and one count of child fondling. Weeks received a thirty-year sentence for each of the sexual-battery convictions and a fifteen-year sentence for the child-fondling conviction. The second thirty-year sentence and the fifteen-year sentence run concurrently with each other but consecutively to the first thirty-year sentence. Following the trial court’s denial of his motion for judgment notwithstanding the verdict or, in the alternative, a new trial, Malcolm timely filed this appeal.

LAW AND ANALYSIS

¶ 5. Three issues are presented on appeal: 1) whether the trial court allowed the State to substantively amend Malcolm’s indictment; 2) whether there was sufficient evidence to support the jury’s verdicts; and 3) whether the verdicts were against the overwhelming weight of the evidence.

A. Amendment of Indictment

¶ 6. Malcolm was indicted for two counts of sexual battery under Mississippi Code Section 97-3-95(1) which reads:

A person is guilty of sexual battery if he or she engages in sexual penetration with:
(a) Another person without his or her consent;
(b) A mentally defective, mentally incapacitated or physically helpless person;
(c) A child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child; or
(d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.

The counts initially tracked subsection (d), despite the fact that the indictment explicitly stated Mary was fourteen years old at the time of the alleged criminal behavior. At trial, the State was permitted to amend the indictment to change subsection (d) to subsection (c) and twenty-four (24) months to thirty-six (36) months. Malcolm contends that the amendments were improper because they were of substance, as opposed to form.

¶ 7. The question of whether an indictment is legally sufficient is a question of law and must be reviewed de novo. It is well-established that “courts may amend indictments only to correct defects of form; however, defects of substance must be corrected by the grand jury.

[A] change in the indictment is permissible if it does not alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case.

“The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood will be equally available after the amendment is made.”

¶ 8. The amendments to Malcolm’s indictment are akin to those that were at issue in Smith v. State, Like Malcolm, Smith was indicted under Mississippi Code Section 97-3-95(1) for sexual battery. Smith was indicted for three counts of sexual battery, and each count stated that “at the time of the said offense, ... the victim was under the age of 16 years, having a date of birth of November 11, 1992.” At trial, the State moved to amend the indictment to have each count state that, at the time of the alleged crime, the victim was “under the age of 14 years, having a date of birth of November 11, 1992” in order “to bring the indictment in conformity with the statutory language defining sexual battery.” The trial court denied the State’s motion because the proposed amendment would have increased Smith’s potential sentence from thirty years to life imprisonment, a result the trial court deemed prejudicial to Smith. On appeal, Smith argued that the indictment was fatally flawed because its “inclusion of the language ‘under the age of 16 years’ and the victim’s date of birth tracks the language of two separate subsections of the sexual-battery statute,” namely subsections (c) and (d) which also are at issue here. The Court of Appeals held the indictment was sufficient, despite tracking the language of both subsections and listing the wrong age for the victim, because the indictment included the birthdays of both Smith and the victim and the date of the alleged crime. Therefore, a “simple math” calculation would have notified Smith that he was being charged with sexually battering a nine-year-old girl when he was twenty-five years old and, as such, he should have anticipated being prosecuted under subsection (d).

¶ 9. As in Smith, Malcolm’s indictment included the birth dates of Mary and Malcolm and the dates of the alleged criminal behavior. It also specifically stated that Mary was fourteen at the time of the alleged crimes. Malcolm argues his case is distinguishable from Smith because Smith’s indictment did not name a specific subsection of Mississippi Code Section 97-3-95(1), whereas his indictment named the wrong subsection. While this factual distinction is correct, it does not necessitate a different result. An indictment is sufficient despite citing the wrong statutory subsection so long as it contains a “clear and concise statement of the elements of the crime charged.” It was clear from the face of Malcolm’s original indictment that he was charged with sexually battering his fourteen-year-old daughter when he was thirty-nine years old. As such, Malcolm should have anticipated being prosecuted under subsection (c).

¶ 10. The amendments also did not alter Malcolm’s defense. Malcolm never claimed he was innocent based on Mary’s age. Rather, he consistently maintained that he never inappropriately touched Mary. Malcolm’s original indictment was sufficient, and the State’s amendments corrected only defects of form. This issue is without merit.

B. Sufficiency of the Evidence

¶ 11. Malcolm claims that the State failed to present sufficient evidence to support any of his three convictions, and that the trial court erred in denying his motion for judgment notwithstanding the verdict (JNOV). When reviewing the denial of a motion for JNOV, the evidence is viewed in the light most favorable to the verdict. A reversal is appropriate “only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.”

¶ 12. To convict Malcolm of child — fondling, the State had to prove that Malcolm, “for the purpose of gratifying his ... lust, or indulging his ... depraved licentious sexual desires, ... handle[d], touch[ed] or rub[bed] [Mary] with hands or any part of his ... body or any member thereof’ when he was more than eighteen years old and Mary was less than sixteen years old. And, to convict Malcolm of sexual battery, the State had to prove Malcolm was at least thirty-six months older than Mary and that he sexually penetrated her when she was between the ages of fourteen arid sixteen. The parties do not dispute that Mary was fourteen and Malcolm was thirty-nine at the time of the alleged crimes. The question is simply whether there was sufficient evidence: 1) that Malcolm fondled Mary on September 19, 2010, and 2) that Malcolm sexually penetrated Mary between June 16, 2010, and September 18, 2010, and on September 19, 2010. In the sexual-battery context,

Sexual penetration includes cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal openings of another person’s body by any part of a person’s body, and insertion of any object into the genital or anal openings of another person’s body.

¶ 13. Mary testified that Malcolm had touched her vagina and had performed oral sex on her the morning of September 19, 2010. She also testified that Malcolm had touched her vagina several times between the end of June 2010 and September 18, 2010, with his hands, mouth, penis, and a vibrator. Such behavior constitutes sexual penetration under Section 97-3-97(a) and fondling under Section 97-5-23. Mary’s story was corroborated by testimony from several witnesses who heard Mary recount her allegations of abuse during the investigative process. DNA evidence also established the presence of male DNA inside and outside Mary’s vagina and could not eliminate Malcolm as a potential source of the DNA. We find sufficient evidence supported Malcolm’s sexual-battery and child-fondling convictions. As such, the trial court did not err in denying Malcolm’s motion for JNOV.

C. The Weight of the Evidence

¶ 14. Finally, Malcolm argues that the jury’s verdict is against the overwhelming weight of the evidence and faults the trial court for denying his motion for a new trial. A “motion for a new trial is addressed to the discretion of the trial court, and such motion should be considered with caution. ‘[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.’ ” This Court must “weigh the evidence in the light most favorable to the verdict” and must therefore look at the evidence in the light most favorable to the State’s theory of the case. This Court “will disturb the verdict only ‘when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” For the reasons expressed in the sufficiency-of-the-evidence analysis, this Court will not sanction an unconscionable injustice to allow Malcolm’s convictions to stand. The overwhelming weight of the evidence supported the jury’s verdicts, and the trial court did not err in denying Malcolm’s motion for a new trial.

CONCLUSION

¶ 15. Malcolm Weeks Sr. was indicted and tried for sexually abusing his fourteen-year-old daughter. Malcolm was convicted of one count of child — fondling and two counts of sexual battery. Malcolm’s indictment was sufficient, even though the sexual-battery counts initially tracked the wrong subsection of the sexual-battery statute. The indictment provided Malcolm with notice of the charges against him, because it specifically alleged that he abused his fourteen-year-old daughter and included his birthday, his daughter’s birthday, and the dates of the alleged crimes. The trial court appropriately granted the State’s motion to amend the indictment to reflect the appropriate subsection of the sexual-battery statute, as the amendment was one of form. The trial court also appropriately denied Malcolm’s motion for judgment notwithstanding the verdict, or in the alternative a new trial, because the jury’s verdicts were sufficiently supported by the evidence and were not against the overwhelming weight of the evidence. The judgment of the Rankin County Circuit Court is affirmed.

¶ 16. COUNT II: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF GRATIFICATION OF LUST AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IV: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THE LAST FIFTEEN (15) YEARS IN COUNT IV ARE STAYED AND THAT PORTION OF THE SENTENCE IS SUSPENDED AND THE APPELLANT SHALL BE RELEASED AND PLACED ON FIVE (5) YEARS SUPERVISED PROBATION AND IS REQUIRED TO REGISTER AS A SEX OFFENDER. SENTENCES IMPOSED IN COUNTS III AND IV SHALL RUN CONCURRENTLY WITH EACH OTHER BUT CONSECUTIVELY TO SENTENCE IN COUNT II, WITH CONDITIONS.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ„ CONCUR.

      . Weeks was indicted for two counts of child fondling and two counts of sexual battery.

      . Fictitious names have been used for the minor victim and her family members to protect the identity of the victim. Members of the Weeks family will be referred to by first names to avoid confusion.

      .The parties dispute how Malcolm responded. Malcolm claims he told Sarah that "he was waking [Mary] up for church,” while Sarah claims he said "nothing.”

      . A Y-chromosome test is often used when a sample is likely to have a large amount of female DNA and only a minimal amount of male DNA. This test cannot pinpoint an individual but it can pinpoint a paternal line.

      . Miss.Code Ann. § 97-3-95(1) (Rev.2006).

      . Miss.Code Ann. § 97-3-95(l)(c) (Rev.2006).

      .Miss.Code Ann. § 97-3-95(l)(d) (Rev.2006).

      . Malcolm does not specifically attack the legal sufficiency of the State’s evidence. Instead, he makes arguments against both the sufficiency and the weight of the evidence under one heading reading "The lower court erred in denying the Defendant's Motion for JNOV, and in failing to grant a new trial where the jury returned a verdict against the overwhelming weight of the evidence.” To avoid confusion, these issues are addressed separately.

      . Malcolm also was indicted for two counts of child fondling under Mississippi Code Section 97-5-23, Count I and Count III in the indictment. These counts were not amended. Malcolm challenges the validity of his Count III conviction based on the sufficiency and the weight of the evidence. Those arguments are addressed infra. Malcolm was not convicted of Count I; therefore it is not at issue in this appeal.

      . Miss.Code Ann. § 97-3-95(1) (Rev.2006).

      . Patton v. State, 109 So.3d 66, 80 (Miss.2012).

      . Id. (internal quotations omitted).

      . Id. (quoting Montgomery v. State, 891 So.2d 179, 186 (Miss.2004)).

      . Patton, 109 So.3d at 81 (internal quotations omitted).

      . Smith v. State, 989 So.2d 973 (Miss.Ct.App.2008).

      . Id. at 975.

      . Id. at 976.

      . Id. at 977.

      . Id. at 977. Notably, the same prejudice does not accompany the amendment at issue here. By changing Weeks’s indictment to charge him under subsection (c) as opposed to subsection (d), the State reduced his potential maximum sentence.

      . Id. at 978.

      . Id. at 979.

      . Id.

      . See Evans v. State, 916 So.2d 550, 552 (Miss.Ct.App.2005) (citing White v. State, 169 Miss. 332, 153 So. 387, 388 (1934)).

      . See Givens v. State, 730 So.2d 81 (Miss.Ct.App.1998) (amendment changing the date of the alleged crime held to be one of form because the date change did not change the crime charged and did not prejudice Givens's defense, which was not time-specific).

      . Patton, 109 So.3d at 82.

      . Id. (quoting McClain v. State, 625 So.2d 774, 778 (Miss.1993) (internal quotations omitted)).

      . Miss.Code Ann. § 97-5-23(1) (Rev.2006).

      . Miss.Code Ann. § 97-3-95(c) (Rev.2006).

      . Miss.Code Ann. § 97-3-97(a) (Rev.2006) (internal quotations omitted).

        .See Brady v. State, 722 So.2d 151 (Miss.Ct.App.1998) (evidence that defendant kissed nine-year-old victim’s vagina was sufficient to establish that defendant had performed cunnilingus on the victim for the purpose of proving sexual penetration); Golden v. State, 984 So.2d 1026 (Miss.Ct.App.2008) (seven-year-old victim’s testimony that defendant licked her vagina three or four times was sufficient to support fondling conviction under Mississippi Code Section 97-5-23).

      . Weatherspoon v. State, 56 So.3d 559, 564 (Miss.2011).

      . Id. at 564 (citations omitted).

        .Ben v. State, 95 So.3d 1236, 1253 (Miss.2012) (citing Bush v. State, 895 So.2d 836, 844 (Miss.2005)).


source: Caselaw Access Project

license: Public Domain

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Eddie H. BOWEN.
    No. 2013-JP-00776-SCT.
    Supreme Court of Mississippi.
    Oct. 3, 2013.

      Darlene D. Ballard, John B. Toney, attorneys for appellant.
    Sam S. Thomas, Madison, attorneys for appellant.
   LAMAR, Justice,

for the Court:

¶ 1. In this judicial-misconduct case, Eddie H. Bowen, Circuit Court Judge for the Thirteenth District, State of Mississippi, failed to disclose a conflict to the parties in a civil lawsuit and failed to rule on counsel’s motion to recuse made after the conflict was discovered. The Mississippi Commission on Judicial Performance (Commission) recommends, in a joint motion for approval of recommendations, that Judge Bowen be publicly reprimanded and assessed costs in the sum of $200 under Section 177A of the Mississippi Constitution of 1890, as amended, (Section 177A) and Rule 10A of the Rules of the Mississippi Commission on Judicial Performance. After reviewing the record, we find that the recommended sanctions are insufficient. We order that Judge Bowen be publicly reprimanded, fined $500, and assessed costs in the amount of $200.

FACTS AND PROCEDURAL HISTORY

¶2. In January 2012, the Commission filed a formal complaint against Judge Bowen, charging him with judicial misconduct constituting a violation of Section 177A. Judge Bowen filed his answer to the complaint on May 29, 2012. An agreed statement of facts and proposed recommendation were filed by the parties on February 4, 2013.

¶ 3. According to the agreed facts, in early April 2011, Judge Bowen commenced a trial in the matter of Brown v. Phillips 66 Co., Union Carbide Corp., et al., Smith County Circuit Court Civil Action No. 2006-196. Brown sought damages from the defendants based on his alleged exposure to asbestos. During jury selection, Judge Bowen preemptively struck, for cause, all prospective jurors who had family members within the first degree of consanguinity who had been screened for an asbestos-related disease or had made a claim for injuries related to asbestos exposure.

¶ 4. After two weeks of trial, Judge Bowen mentioned to the attorneys in chambers that his father might have been tested for asbestosis, but he did not make such a disclosure on the record. When the defendants requested the name of Judge Bowen’s father, he refused to relate it. Defendants later determined, after conducting their own investigation, that Judge Bowen’s father had filed two asbestosis lawsuits and that both Judge Bowen’s mother and father had settled asbestosis claims with Union Carbide and other Defendants. Defendants also found that Judge Bowen’s father had submitted a claim to the bankruptcy trustee for Union Carbide’s asbestos supplier.

¶ 5. After the trial, Union Carbide filed a motion requesting that Judge Bowen re-cuse himself. Judge Bowen did not rule on the motion within the thirty days required by Rule 1.15 of the Uniform Rules of Circuit and County Court Practice (URCCC). Based on Judge Bowen’s failure to rule on the motion to recuse, Union Carbide appealed to this Court. In an en banc order, Union Carbide Corp., et al. v. Brown, No.2011-M-00874, we removed Judge Bowen from the case based on his refusal to provide information about his father, his decision to preemptively strike all prospective jurors with family members who had asbestos-related claims, the history of asbestosis claims filed by Judge Bowen’s parents, and the settlement between Judge Bowen’s father and Union Carbide. We found that a reasonable person, knowing all the circumstances, would have doubts regarding Judge Bowen’s impartiality in the case.

¶ 6. The Commission accepted the agreed facts and found by clear and convincing evidence that, by engaging in such conduct, Judge Bowen violated Canons l, 2A, and 3E(l)(a) of the Code of Judicial Conduct of Mississippi. The Commission also found by clear and convincing evidence that Judge Bowen’s conduct constituted willful misconduct in office under Section 177A. The Commission now recommends that Judge Bowen be publicly reprimanded under Section 177A and be assessed costs of this proceeding in the amount of $200. Judge Bowen joins the Commission’s recommendation.

DISCUSSION

¶7. This Court has the power, “[o]n recommendation of the commission on judicial performance,” to “remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for ... willful misconduct in office ... or ... conduct prejudicial to the administration of justice which brings the judicial office into disrepute[.]” Willful misconduct in office includes “the improper or wrongful use of power of his office by a judge acting intentionally, or with gross unconcern for his conduct and generally in bad faith.” “However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner so as to bring the judicial office into disrepute.”

¶ 8. “This Court is vested with the sole power to impose sanctions in judicial misconduct cases and, thus, must undertake an independent inquiry of the record.” “In so doing, this Court ‘accords careful consideration [to] the findings of fact and recommendations of the Commission, or its committee, which has had the opportunity to observe the demeanor of the witnesses.’ ” “This Court may ‘accept, reject, or modify, in whole or in part, the findings and recommendation of the Commission.’ ”

A. Judge Bowen committed misconduct.

¶ 9. It is clear that Judge Bowen committed willful misconduct and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. Judge Bowen failed to disclose a conflict to the parties in a civil trial and, upon discovery of the conflict, failed to rule on counsel’s motion to recuse as required by Rule 1.15. We removed Judge Bowen from the case because a reasonable person, knowing all the circumstances, would have doubts regarding Judge Bowen’s impartiality in the case. Additionally, Judge Bowen’s conduct caused the parties to incur additional time and expense in bringing the matter of his recusal before this Court. Therefore, Judge Bowen violated Canons 1, 2A, and 3E of the Code of Judicial Conduct of Mississippi and Section 177A of the Mississippi Constitution.

B. The recommended sanctions are not sufficient.

¶ 10. We traditionally have considered the following six factors in determining the appropriate sanctions for judicial misconduct:

(1) The length and character of the judge’s public service;
(2) Whether there is any prior caselaw on point;
(3) The magnitude of the offense and the harm suffered;
(4) Whether the misconduct is an isolated incident or evidences a pattern of conduct;
(5) Whether moral turpitude was involved; and,
(6) The presence or absence of mitigating or aggravating circumstances.

¶ 11. However, we recently modified the fifth Gibson factor involving the presence of hard-to-define moral turpitude. Instead of examining whether moral turpitude was involved in the alleged misconduct, we now examine “whether the conduct was willful and the extent to which the conduct exploited the judge’s position to satisfy his or her personal desires or was intended to deprive the public of assets or funds rightfully belonging to it.”

(1)The length and character of the judge’s public service

¶ 12. Judge Bowen has been a circuit court judge for almost three years. The record is silent as to the character of his public service.

(2) Whether there is any prior case-law on point.

¶ 13. While numerous cases address whether or not a judge should have re-cused himself, there is very little caselaw regarding what sanctions are proper in a situation in which a judge should have recused himself, but failed to do so. In Mississippi Commission on Judicial Performance v. Hartzog, 32 So.3d 1188 (Miss.2010), we found that a judge’s failure to timely recuse himself from a case in which he had an obvious conflict of interest warranted a public reprimand and a six-month suspension from office. However, the judge in that case had several disciplinary actions against him, his conduct showed a pattern of continued violations of the Code of Judicial Conduct, and he never acknowledged any wrongdoing.

(3) The magnitude of the offense and the harm suffered

¶ 14. The parties incurred additional time and expense as a result of Judge Bowen’s failure to rule on Union Carbide’s motion to recuse, as they were forced to bring the matter to this Court’s attention. After we removed Judge Bowen from the case, the newly appointed judge entered an order voiding and vacating the judgment, the jury verdict, and all rulings and orders issued by Judge Bowen. The parties were forced to try the case twice, costing the parties and the court additional time and expense. Media outlets published articles regarding Judge Bowen’s actions and the set-aside of the jury verdict, making the public aware of the matter. Judge Bowen’s actions compromised the integrity and independence of the judiciary and his duties as a judicial officer.

(4) Whether the misconduct is an isolated incident or evidences a pattern of conduct.

¶ 15. Judge Bowen does not have a disciplinary history with the Commission, and his conduct was an isolated event.

(5) Whether the conduct was willful.

¶ 16. We recently explained this factor as follows:

In examining the extent to which the conduct was willful, we will examine “whether the judge acted in bad faith, good faith, intentionally, knowingly, or negligently.” In re Coffey’s Case, 157 N.H. 156, 949 A.2d 102, 115 (2008) (quoting [C. Grey, American Judicature Society: A Study of State Judicial Discipline Sanctions 77-82 (2002) ]). “[Mjisconduct that is the result of deliberation is generally more serious than that of a spontaneous nature.” In re Coffey’s Case, 949 A.2d at 115-16. For example, spontaneous conduct, such as provoked conduct, may fall on one end of the spectrum, and may indicate a lesser sanction. Planned, premeditated conduct may fall on the opposite end of the spectrum, indicating the appropriateness of a harsher sanction. Conduct that is knowing and/or deliberate, but not the result of premeditation, may fall between spontaneous and premeditated conduct. Certainly, the analysis of the extent of willfulness will allow for consideration of acts of dishonesty. Furthermore, the inappropriateness of the action may also be considered under the aggravating circumstances factor.

In this case, the record indicates that Judge Bowen acted with knowledge that his actions were wrong. He was aware, or should have been aware, of his conflict with the case; he refused to provide his father’s name to counsel when requested; and he failed to rule on counsel’s motion to recuse. Judge Bowen’s actions were not the product of provocation or a spontaneous decision, as he had time to contemplate his possible conflict and recuse himself. Therefore, his conduct was willful and deliberate, but the record contains no evidence of any premeditation.

(6) Exploitation of the judge’s position to satisfy personal desires or whether the judge’s conduct was intended to deprive the public of assets or funds rightfully belonging to it.

¶ 17. “When analyzing the extent to which the conduct exploited the judge’s position to satisfy personal desires, we will examine factors such as whether the judge received money, received favors, or otherwise acted in a manner indicative of any improper personal motivation.” There is no evidence that Judge Bowen’s conduct was intended to satisfy any personal desires and no evidence that Judge Bowen personally gained from his actions. Whether the judge’s conduct was intended to deprive the public of assets or funds is not at issue here.

(7) The presence or absence of mitigating or aggravating circumstances

¶ 18. In Skinner, we noted that “inappropriateness of the action” could be considered under the aggravating-circumstances factor. It certainly was inappropriate for Judge Bowen to refuse to provide counsel with his father’s name when requested and to fail to rule on counsel’s motion to recuse. As a result of Judge Bowen’s actions, we were forced to remove him from the case, and the circuit court and parties were forced to shoulder the additional expense and time demands of a second trial. Mitigating factors in this case are that Judge Bowen cooperated with the Commission, has agreed that his actions were improper, and has entered into an Agreed Statement and Joint Motion with the Commission without the requirement of a hearing. Furthermore, this is the first formal complaint against Judge Bowen, and he has not been the subject of prior discipline by the Commission.

¶ 19. While we recognize that a judge’s cooperation with the Commission and acknowledgment of wrongdoing are mitigating factors, we must keep in mind that “the primary purpose of sanctions is ‘to restore and maintain the dignity and honor of the judicial office and to protect the public against future excesses,’ rather than punishment of the individual.” Judge Bowen’s actions compromised the integrity and independence of the judiciary and his duties as a judicial officer, and sanctions must be sufficient to accomplish these purposes.

CONCLUSION

¶20. Judge Bowen’s actions clearly constituted willful judicial misconduct in violation of the Mississippi Constitution of 1890, as amended, and the Code of Judicial Conduct. After considering the relevant factors, we find that Judge Bowen should be publicly reprimanded, fined in the amount of $500, and assessed costs of this proceeding in the amount of $200.

¶ 21. CIRCUIT COURT JUDGE EDDIE H. BOWEN SHALL BE PUBLICLY REPRIMANDED, FINED $500 AND ASSESSED COSTS OF $200. THE PUBLIC REPRIMAND SHALL BE READ IN OPEN COURT BY A SPECIAL JUDGE TO BE APPOINTED BY THIS COURT FOR THAT PURPOSE ON THE FIRST DAY OF THE NEXT TERM OF THE SMITH COUNTY CIRCUIT COURT IN WHICH A JURY VE-NIRE IS PRESENT AFTER THE ISSUANCE OF THIS COURT’S MANDATE, WITH JUDGE BOWEN IN ATTENDANCE.

WALLER, C.J., DICKINSON, P.J., KITCHENS, CHANDLER, KING AND COLEMAN, JJ„ CONCUR. RANDOLPH, P.J., AND PIERCE, J., NOT PARTICIPATING.

      . Canon 1 provides that judges "should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved.” Code of Judicial Conduct Canon 1.

      . Canon 2A provides that judges "respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Code of Judicial Conduct Canon 2A.

      . Canon 3E(l)(a) provides that judges “should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law, including but not limited to instances where: the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings.” Code of Judicial Conduct Canon 3E(l)(a).

      . Miss. Const, art. 6, § 177A.

      . Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872, 874 (Miss.2000) (citation omitted).

      . Id. (citations omitted).

      . Mississippi Comm’n on Judicial Performance v. Smith, 109 So.3d 95, 98 (Miss.2013) (citation omitted).

      . Id. (quoting In re Anderson, 412 So.2d 743, 746 (Miss.1982)).

      . Smith, 109 So.3d at 98 (quoting Miss. Comm’n on Judicial Performance R. 10(E)).

        .Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004), overruled in part on other grounds by Miss. Comm'n on Judicial Performance v. Boone, 60 So.3d 172, 174 (Miss.2011); modified in part by Miss. Comm'n on Judicial Performance v. Skinner, 119 So.3d 294 (Miss.2013).

      . Skinner, 119 So.3d at 294 .

      . Id. at 306, ¶ 32.

      . Id. at 1196-97.

      . Skinner, 119 So.3d at 306, ¶ 32.

      . Id.

      . Id.

      . Id. at 300 (¶ 12) (quotation omitted).