author: LEE, C.J., CARLTON, J.,

text:
    Justin BARRON, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01422-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.
    Rehearing Denied Oct. 8, 2013.
    Certiorari Denied Jan. 23, 2014.

      James D. Shannon, Kathryn Lindsey White, Hazlehurst, attorneys for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Justin Barron was convicted of murder by a jury in the Copiah County Circuit Court. Barron was sentenced to serve life in the custody of the Mississippi Department of Corrections. Barron filed post-trial motions, which the trial court denied. Barron now appeals, arguing the trial court erred by: (1) denying his motion for directed verdict; (2) denying his peremptory instruction; (8) admitting hearsay testimony from several witnesses, including rebuttal witnesses; (4) excluding testimony about the victim’s history of domestic violence; (5) overruling his objection to the State’s jury instruction S-5; (6) overruling his objection to certain statements made by the State; and (7) failing to grant his motion for a judgment notwithstanding the verdict (JNOV).

FACTS

¶2. On June 25, 2010, Barron and his mother, Joann Miller (Joann), were at their home in Copiah County, Mississippi. Joann shared the home with her husband, Matthew Miller (Matthew); their son, Matthew Jr.; and Barron, Joann’s eighteen-year-old son from a prior marriage. Their home at the time was a one-room shop, which had been divided by furniture into sleeping and living quarters. Joann testified that she arrived at the home around 5:45 p.m. to find Barron weed-eating the yard, Matthew standing near his truck, and her youngest son playing with a friend. Joann testified Matthew left to run an errand. Matthew returned later and, according to Joann, seemed angry. Matthew entered the shop and began yelling at Joann. Joann testified Matthew then began throwing objects at her, including a love seat, a shop-vac, and a toy box. Matthew left the shop to take their youngest son’s friend home.

¶ 3. Joann testified Matthew returned to the shop and shoved her onto the couch. Matthew then threw part of the shop-vac toward Barron, grabbed Barron, and pushed him against a cabinet. Joann asked Matthew to let Barron go. Matthew hit Joann on the side of the head and shoved her onto the couch again. Matthew began hitting Joann’s hands and feet. Joann testified that she was unable to defend herself. Joann then heard loud sounds, pushed herself out from under Matthew, and saw Barron holding a shotgun. Barron had shot Matthew twice in the back. Joann immediately dialed 911. The 911 call was received at 8:34 p.m. Joann then retrieved a rag to wipe Matthew’s brow.

¶ 4. Sarah Miller (Sarah), Matthew’s sister-in-law, heard about the shooting and called Joann. Sarah testified that Joann told her emergency personnel had not responded yet. Sarah also spoke with Barron and asked him if Matthew was still breathing. Barron was unsure and, at Sarah’s request, went over to Matthew to check for a pulse. Barron responded, “I don’t think so.”

¶ 5. Sarah contacted Sharon Hughes (Sharon) and informed her that Matthew had been shot. Sharon and her husband, Barry Hughes (Barry), lived a few miles away from Joann and Matthew. Sharon and Barry arrived at the scene, finding Barron outside the shop talking on his cell phone. Sharon and Barry each testified they entered the shop and found Matthew’s body on the couch. Joann, Sharon, and Barry moved Matthew’s body onto the floor. Barry attempted to perform CPR. Matthew was wearing a tank top and underwear.

¶ 6. Sharon and Barry each testified that Joann told them Matthew did push her onto the couch, but she got up and was walking toward the front door when Barron shot Matthew. Sharon and Barry also testified Joann had said Barron did not need to shoot Matthew, and that Matthew was not threatening her life.

¶ 7. Dr. Amy Gruszecki, a forensic pathologist, conducted the autopsy on Matthew’s body. Dr. Gruszecki determined Matthew had suffered two gunshot wounds, one to the left-upper back and the other to the left-middle back. Wadding was found in both gunshot wounds, indicating the shots were fired close to Matthew’s body. Dr. Gruszecki also found that Matthew tested positive for alcohol, marijuana, methamphetamine, and an allergy medicine. Dr. Gruszecki opined that Matthew’s body lacked injuries to support Barron’s theory that Matthew exhibited the characteristics of “excited delirium” due to the combination of alcohol and methamphetamine in his system.

¶ 8. Scott Barnes, a deputy with the Copiah County Sheriffs Department, was one of the first emergency personnel to arrive at the scene. Deputy Barnes saw Barron sitting on the hood of a car outside the shop. Deputy Barnes entered the shop and observed Barry performing CPR on Matthew. Barry indicated Barron was responsible. After asking Joann, Sharon, and Barry to exit the shop, Deputy Barnes put Barron in a patrol car.

¶ 9. Jerry Spell, an investigator with the Copiah County Sheriffs Department, arrived at the scene at 9:01 p.m. Investigator Spell interviewed Barron early the next morning. Barron admitted to shooting Matthew but stated he did so because Matthew was on top of Joann. Investigator Spell told Barron that Joann had stated she was not there when Barron shot Matthew. Barron clarified his statement, saying that he heard Joann say “Get off me” but that he did not know where she was when he shot Matthew. Barron told Investigator Spell he could have handled the situation differently, but his first instinct was to get his shotgun.

¶ 10. Investigator Spell testified that Barron told him of another incident in which Matthew had pushed Joann. Barron said he took a gun, pointed it at Matthew, and told him if that happened again, it would not end well for Matthew. Barron told Investigator Spell that was the first time Matthew had assaulted Joann. After speaking with Joann the night of Matthew’s death, Investigator Spell said Joann complained of tenderness to the right side of her hairline, but no injury was visible. Investigator Spell also documented a bruise on the top of Joann’s right foot. Investigator Spell said both Barron and Joann stated they were not in any danger that night.

¶ 11. Dr. Scott Farr Smith, an emergency-room physician, examined Joann on June 28, 2010. Joann complained that her husband had hit her on the left side of her head, and she was experiencing numbness in her hands and lower arms. Dr. Smith noted that there was no bruising to Joann’s head, but Joann did indicate tenderness behind her ear. A scan indicated no fracture or other damage to her head. Dr. Smith also observed a small abrasion on her big toe. An X-ray indicated no fracture to her foot.

¶ 12. Dr. Emily Ward, a forensic pathologist, reviewed Dr. Gruszecki’s autopsy report. Dr. Ward agreed that Matthew had two fatal gunshot wounds to his back. Dr. Ward thought Matthew exhibited the characteristics of “excited delirium” due to the combination of alcohol and methamphetamine in his system.

DISCUSSION

I. DIRECTED VERDICT

II. PEREMPTORY INSTRUCTION

III. JNOV

¶ 13. As several of Barron’s issues address the legal sufficiency of the evidence, we will address them together. McClain v. State, 625 So.2d 774, 778 (Miss.1993). Regarding whether the evidence was legally sufficient to support the verdict, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed!.]’ ” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id. The jury determines the credibility of witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003).

¶ 14. Barron’s indictment stated he “did wilfully, unlawfully, feloniously, [and with] malice aforethought and without authority of law, kill and murder ... Matthew Miller ... in violation of Section 97-3-19.... ” The jury was further instructed on deliberate-design murder. Mississippi Code Annotated section 97-3-19(1)(a) (Rev.2006) defines deliberate-design murder as “[t]he killing of a human being without the authority of law by any means or in any manner ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being.” The State must prove beyond a reasonable doubt: “(1) the defendant killed the victim; (2) without the authority of law; and (3) with deliberate design to effect his death.” Brown v. State, 965 So.2d 1023, 1030 (¶ 27) (Miss.2007).

¶ 15. Barron contends the evidence proves at most that he was guilty of manslaughter because his actions show no premeditation or malice. The jury was given a manslaughter instruction that tracked Mississippi Code Annotated section 97-3-35 (Rev.2006). Section 97-3-35 states that manslaughter is “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense .... ” Heat of passion has been defined as:

[A] state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Givens v. State, 967 So.2d 1, 11 (¶ 33) (Miss.2007) (quoting Mullins v. State, 493 So.2d 971, 974 (Miss.1986)).

¶ 16. From the evidence presented, we find there was sufficient evidence for the jury to find Barron guilty of murder. Although Barron did not testify on his own behalf, his state of mind could be reasonably inferred from his actions and statements to the police. Investigator Spell testified to the following: Barron did not know if Joann was on the couch when he shot Matthew; Barron admitted to him that neither he nor Joann was in danger that night; Barron admitted he could have handled the situation differently; and Barron previously threatened Matthew with a gun after Matthew pushed Joann. There was also testimony from Sharon and Barry that Joann told them she was walking toward the door when Barron shot Matthew. Joann also told the Hugheses that Barron did not need to shoot Matthew because Matthew was not threatening her life. Furthermore, “[deliberate design to kill a person may be formed very quickly, and perhaps only moments before the act of consummating the intent.” Brown, 965 So.2d at 1030 (¶ 28).

¶ 17. “[I]n order for a crime to be reduced from murder to manslaughter, circumstances must exist that would rouse a normal mind ‘to the extent that the reason is overthrown and that passion usurps the mind destroying judgment.’ ” Johnson v. State, 52 So.3d 384, 394 (¶ 29) (Miss.Ct.App.2009) (quoting Graham v. State, 582 So.2d 1014, 1018 (Miss.1991)). There was no evidence or testimony presented showing that Barron was acting in the heat of passion when he killed Matthew. Even Joann’s testimony concerning that night does not support Barron’s contention that he was acting in the heat of passion.

¶ 18. The jury was instructed on deliberate-design murder, manslaughter, and justifiable homicide but found the evidence supported a murder conviction. The jury clearly weighed any conflicts in the evidence in the State’s favor. The jury found that Barron did not act in the heat of passion or in self-defense, but deliberately shot Matthew twice in the back at close range. We find the evidence was sufficient to support the guilty verdict.

¶ 19. Barron also contends he should have been convicted of manslaughter under an “imperfect-self-defense” theory. As the State correctly points out, Barron did not raise this defense in the trial court. Barron’s defense was ordinary self-defense, not imperfect self-defense. All testimony, the jury instructions, and the opening and closing statements are void of any mention of imperfect self-defense. Additionally, Barron did not include imperfect self-defense in his motion for a new trial. “[Questions will not be decided upon appeal which were not presented to the trial court ... [giving] that court ... an opportunity to rule on them.” Fleming v. State, 604 So.2d 280, 293 (Miss.1992) (quoting Colburn v. State, 431 So.2d 1111, 1113-14 (Miss.1983)). Accordingly, this issue is procedurally barred from our consideration.

IV. HEARSAY

¶ 20. In his next issue on appeal, Barron contends certain statements made by Barry, Sharon, Sarah, Deputy Barnes, and Inspector Spell were hearsay and should have been excluded.

¶ 21. Sharon and Barry Hughes both testified as to what happened when they arrived at the scene and their subsequent conversations with Joann. Barron objected, and the trial court overruled the objection based upon the excited-utterance and present-sense-impression exceptions to the hearsay rule. Mississippi Rule of Evidence 803(1) states that a present-sense impression is “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.” Mississippi Rule of Evidence 803(2) states that an excited utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The record suggests that Joann was still under the excitement of the event at the time the statements were made to the Hugheses. The statements occurred approximately ten to twenty minutes after the shooting, and Sharon stated Joann seemed to be in shock and was visibly “shaken up.”

¶22. One of Barron’s concerns with Sharon’s and Barry’s testimony is the fact Joann’s statements to them were in response to the Hugheses asking her what had happened. However, “[t]he mere fact that the statement ... was in response to an inquiry ... does not necessarily take [it] outside the realm of admissible excited utterances.” Barnett v. State, 757 So.2d 323, 330 (¶ 18) (Miss.Ct.App.2000) (citing Sanders v. State, 586 So.2d 792, 795 (Miss.1991)). In fact, the Mississippi Supreme Court has held that “[w]here the excited utterance is prompted by a simple question, even from an officer, such as ‘What happened?’ or ‘What’s wrong?’ ” it may still fall under the exception. Carter v. State, 722 So.2d 1258, 1261 (¶ 10) (Miss.1998) (citations omitted).

¶ 23. The trial court found these statements by Joann to the Hugheses fell under both Rule 803(1) and Rule 803(2). We review a trial court’s ruling on the admissibility of evidence under our familiar abuse-of-discretion standard of review. Sanders v. State, 77 So.3d 497, 500 (¶ 9) (Miss.Ct.App.2011). We cannot find the trial court abused its discretion in admitting Joann’s statements to the Hugheses under the excited-utterance exception.

¶ 24. During the State’s rebuttal, Sarah testified that she spoke with Joann the day after Matthew’s murder. Joann told Sarah that she was walking toward the door when Barron shot Matthew. Joann also told Sarah that Barron did not have to shoot Matthew. Barron objected to these statements. The trial court overruled his objection, finding the statements were admissible as prior inconsistent statements under Mississippi Rule of Evidence 801(d)(1)(A). Rule 801(d)(1)(A) states that a statement is not considered hearsay if “[t]he declarant testifies ... and is subject to cross-examination concerning the statement, and the statement is ... inconsistent with the de-clarant’s testimony, and was given under oath.... ” However, Sarah’s testimony does not involve prior statements given under oath. Rather, Sarah’s testimony concerning Joann’s statements was merely impeachment testimony. Mississippi Rule of Evidence 607 states that “[t]he credibility of a witness may be attacked by any party....” Impeachment testimony must be “relevant to the issue at hand.” Johnson v. State, 655 So.2d 37, 41 (Miss.1995). We find this testimony relevant and admissible. It is customary for this Court to affirm a trial court’s decision if the correct result was reached for the wrong reason. Towner v. State, 837 So.2d 221, 225 (¶ 9) (Miss.Ct.App.2003).

¶ 25. Deputy Barnes testified when he arrived at the scene, “Barry came to [him] and said that the young gentleman sitting on the hood of the truck [ (indicating Barron) ] was responsible for the incident.” Barron objected to this statement, and the trial court overruled his objection. Barron contends the statement is hearsay, as it was used to prove that he shot Matthew. However, there was never any doubt that Barron shot Matthew. The jury had previously heard that Barron shot Matthew. Any error committed by the trial court in allowing the officer to testify in this regard is harmless. See Lancaster v. State, 200 So. 721, 722 (Miss.1941) (Errors are harmless if “the same result would have been reached if they had not existed.”).

¶ 26. In regard to Investigator Spell’s testimony, Barron contends the trial court erred in allowing hearsay statements over his objection. However, the only objection Barron made to Investigator Spell’s testimony was to a leading question. Failure to object waives any error. Rubenstein v. State, 941 So.2d 735, 751 (¶ 27) (Miss.2006).

V. REBUTTAL TESTIMONY

¶ 27. In his next issue on appeal, Barron contends rebuttal testimony by Barry, Sharon, Sarah, and Investigator Spell was hearsay and should have been excluded. Barry, Sharon, Sarah, and Investigator Spell were called in to impeach Joann’s testimony in Barron’s defense. Joann had testified that she feared for her life during Matthew’s attack, and that Matthew was holding her down on the couch.

¶ 28. Since Barron made no contemporaneous hearsay objections in regard to Barry’s testimony or Investigator Spell’s testimony (and we discussed Sarah’s rebuttal testimony in the previous issue), we confine our review to testimony from Sharon.

¶ 29. Sharon spoke with Joann around 2:00 a.m. the day after Matthew’s death. Joann told Sharon that she was walking toward the door when Barron shot Matthew. Barron objected to Sharon’s testimony. The trial court overruled the objection, finding the statements to be admissible as prior inconsistent statements. Since we found similar testimony by Sarah to be admissible under Rule 801(d)(1)(A), we cannot find the trial court abused its discretion in admitting Sharon’s testimony.

¶ 30. Barron also argues the trial court should have granted a limiting instruction stating that this testimony should have been considered for impeachment purposes and not as substantive evidence. Barron failed to request a limiting instruction and argues the trial court should have granted one sua sponte. However, the trial court was not required to give a limiting instruction sua sponte; rather, the burden was on Barron to request the instruction. See Brown v. State, 890 So.2d 901, 913 (¶¶ 36-37) (Miss.2004); Franklin v. State, 72 So.3d 1129, 1140 (¶ 49) (Miss.Ct.App.2011). This issue is without merit.

VI. CHARACTER EVIDENCE

¶ 31. In his next issue on appeal, Barron contends the trial court erred in refusing to allow him to introduce evidence concerning prior instances of domestic violence committed by Matthew. During cross-examination of Brooklyn Miller, Matthew’s daughter, Barron asked her to recall an incident involving Matthew. The State objected. Barron was trying to show that Matthew had a history of abuse against Joann. This incident supposedly occurred at least ten years prior to trial, and Barron was unaware of it. The trial court sustained the objection. By not allowing him to present this evidence, Barron contends his defense was prejudiced.

¶ 32. However, we need not reach the issue of whether the trial court erred because Barron failed to properly preserve this issue for appeal. “Generally, when a party seeks to offer evidence which in turn is excluded by the trial court, before we will consider the matter on appeal the party must have somehow placed in the record the nature and substance of the proffered evidence for our consideration.” Granger v. State, 853 So.2d 830, 833 (¶ 9) (Miss.Ct.App.2003) (quoting Harris v. Buxton T.V., Inc., 460 So.2d 828, 833 (Miss.1984)). “When testimony is excluded at trial, a record must be made of the proffered testimony in order to preserve the point for appeal.” Id. (citing Thompson v. State, 602 So.2d 1185, 1188 (Miss.1992)). Barron did not proffer the content of the excluded testimony at trial. Therefore, this assignment of error is without merit.

¶ 33. We note the jury was able to hear testimony that Matthew had pushed Joann at some point prior to the events leading up to his death.

¶ 34. The dissent misinterprets our findings regarding Brooklyn’s testimony. We do not reach the issue of whether the trial court was in error; rather, as previously stated, Barron failed to preserve this issue for appeal. Barron failed to proffer the testimony that he claims would have supported his theory of defense. Case law is clear that it was Barron’s duty to make a proffer of the excluded testimony in order to preserve the point for appeal. Id. We have no idea if Matthew abused Joann, or someone else entirely, approximately ten years prior to his death or if Brooklyn was aware of any such abuse. Many of Barron’s assertions regarding Matthew’s alleged abuse of Joann are vague insinuations. It is not our job to assume facts not in the record.

¶ 35. The dissent further contends the trial court’s limitation of Barron’s cross-examination of Brooklyn violated his right of confrontation. Our law allows “wide-open cross-examination so long as the matter probed is relevant.” Johnston v. State, 618 So.2d 90, 93 (Miss.1993). “Limitations placed on cross-examination are reviewed for abuse of discretion.” Jefferson v. State, 818 So.2d 1099, 1109 (¶ 24) (Miss.2002) (citations omitted). The trial court in this instance found this testimony was not relevant since it occurred at least ten years prior to Matthew’s death. Although Barron did not raise this specific issue on appeal, we do not find an abuse of discretion in the trial court’s ruling.

VII. JURY INSTRUCTION

¶ 36. Barron contends the trial court erred in overruling his objection to the State’s jury instruction S-5. Instruction S-5 provided:

The Court instructs the [j]ury that the chief distinction between murder and manslaughter is the presence of deliberation and malice in murder and [their] absence in manslaughter. Under the law of the State of Mississippi[,] every killing of a human being without authority of law is either murder or manslaughter; murder when done with malice aforethought and a deliberate design to effect the death of the person killed, and manslaughter when done in the heat of passion without malice and without premeditation.

Barron argues the language concerning deliberate design and malice aforethought is covered in the other jury instructions. Barron objected on the ground that he did not think there was such a thing as a “chief distinction” between murder and manslaughter. Since the first sentence of the instruction is a correct statement of law, we find no error by the trial court in overruling Barron’s objection. See Goldsby v. State, 226 Miss. 1, 15-16, 78 So.2d 762, 767 (1955); Johnson, 52 So.3d at 391 (¶ 17).

¶ 37. Barron further argues instruction S-5 does not address justifiable homicide, self-defense, or defense of another. However, Barron did not object to instruction S-5 on those grounds. As previously stated, Barron objected on the ground that he did not think there was such a thing as “a chief distinction” between murder and manslaughter. “An objection must be made with specificity, and failure to articulate the grounds for objection constitutes .a waiver of the alleged error.” Ross v. State, 954 So.2d 968, 987 (¶ 27) (Miss.2007). This issue is without merit.

VIII. OBJECTIONABLE STATEMENTS

¶ 38. In his final issue on appeal, Barron contends the guilty verdict was based upon innuendo and conjecture. Barron refers specifically to the .State’s cross-examination of Richard Stevens, the 911 director who received Joann’s call at 8:34 p.m. that night. Stevens played the recording of the 911 call placed by Joann. During the cross-examination of Stevens, the State asked him whether Joann ever said she was assaulted by Matthew or was injured in any way. Stevens answered in the negative to these questions. Barron objected on the ground that the recording spoke for itself.

¶ 39. Barron is correct that “[i]t is prejudicial error for questions on cross-examination to contain insinuations and intimations of conduct for which there is no basis in fact.” Mingo v. State, 944 So.2d 18, 31 (¶ 48) (Miss.2006) (citations omitted). However, in this instance the State was asking questions for legitimate reasons' — it was trying to prove its theory of the case, that Barron murdered Matthew and did not commit the killing in the heat of passion or in self-defense. This issue is without merit.

¶ 40. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS AND FAIR, JJ„ CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT . WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY ISHEE AND JAMES, JJ.

CARLTON, J.,

dissenting:

¶ 41. I respectfully dissent from the majority’s opinion. The trial court erred in limiting Barron’s cross-examination of State witness Brooklyn, violating his right of confrontation and constituting reversible error. See generally Anthony v. State, 108 So.3d 394, 397-98 (¶¶ 5-8) (Miss.2013); Suan v. State, 511 So.2d 144, 146-48 (Miss.1987). First, the trial court’s limitation of the cross-examination by Barron unconstitutionally restricted his cross-examination on a matter affecting the witness’s credibility, thereby violating his right of confrontation. Second, the trial court prevented Barron from presenting evidence through her testimony that was necessary for his defense to show why he was provoked to a state of mind of heat of passion. See Meeks v. State, 604 So.2d 748, 755 (Miss.1992); Freeman v. State, 204 So.2d 842, 844-47 (Miss.1967); see also M.R.E. 401; M.R.E. 616. These errors by the trial court affected substantial rights of Barron and prevented him from presenting his defense. See Herrington v. State, 102 So.3d 1241, 1247 (¶ 21) (Miss.Ct.App.2012) (An error falls under the plain-error doctrine “if it ‘affects substantive rights of the defendant.’ ”). These rulings by the trial court denied Barron a fair trial.

¶42. I will first briefly address the error of the trial court in preventing Barron from presenting evidence necessary for his defense. Barron contends that the evidence showed that, at most, he was guilty of only manslaughter. The trial court gave the jury a manslaughter instruction, but during trial, the trial court failed to allow Barron to elicit testimony concerning past domestic violence perpetuated by Matthew, supporting the theory that he was the initial aggressor against Joann, Barron’s mother. In denying the admission of this evidence of past domestic violence, the trial court prevented Barron from presenting his defense to the murder charge, prohibiting evidence proving that he acted in the heat of passion and showing the cause of Barron’s provocation and sensitivity with respect to the current abuse against his mother. See M.R.E. 404(b); M.R.E. 803(2); see also Mitchell v. State, 90 So.3d 584, 592-93 (¶¶ 19-20) (Miss.2012). Mississippi law holds a heat-of-passion defense requires evidence of adequate provocation. Magee v. State, 752 So.2d 1100, 1104 (¶ 16) (Miss.Ct.App.1999).

¶ 43. The evidence of Matthew as the aggressor in past instances of domestic violence against Joann relevantly relates to Barron’s state of mind, showing why Barron responded in such an extreme manner to Matthew’s abuse on this occasion, and the evidence also relevantly relates to the reasonableness of Barron’s response in shooting Matthew. See M.R.E. 802; see also Jobe v. State, 97 So.3d 1267, 1269 (¶ 9) (Miss.Ct.App.2012) (“A criminal defendant is entitled to present his defense to the finder of fact.”). Therefore, the jury was prevented from considering evidence that Barron was not guilty and acted reasonably in his defense and, alternatively, that he acted in the heat of passion to protect his mother, a long-standing domestic-violence victim, in support of the manslaughter instruction. Hobson v. State, 730 So.2d 20, 26-27 (¶¶ 22-23) (Miss.1998). This Court has defined heat of passion as “a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time.” Anderson v. State, 914 So.2d 1239, 1243 (¶ 16) (Miss.Ct.App.2005). “The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment[,] or terror.” Id.; see Underwood v. State, 708 So.2d 18, 36 (¶ 54) (Miss.1998); Tait v. State, 669 So.2d 85, 89 (Miss.1996); see also M.R.E. 401 (relevant evidence defined). Evidence of past wrongs or acts is not admissible to prove character, but it is admissible for other purposes. See M.R.E. 404(b); see also Freeman, 204 So.2d at 844-47.

¶ 44. The trial court additionally violated Barron’s constitutional right of confrontation by limiting his cross-examination of Brooklyn, a State’s witness and the daughter of the deceased. The majority finds no error in the exclusion of evidence that Matthew was the aggressor in past instances of domestic violence. In finding no error in the exclusion of this past domestic violence, the majority reasons no error occurred because Barron did not know of the particular instances. However, the State opened the door to this testimony in its direct examination of State’s witness Brooklyn, and Barron was entitled to cross-examine her as to the accuracy of the happy family image she portrayed to the jury. Moreover, nothing in the record reflects that Barron was unaware that his mother had been in an abusive relationship or a victim of past abuse at the hands of Matthew, the deceased. Contradicting the logic of the majority’s analysis, the record shows Barron’s knowledge of domestic abuse of Joann. Barron told Investigator Spell of an occurrence of past domestic violence where Matthew assaulted Joann by pushing her. Moreover, the trial court erred in failing to allow Barron to cross-examine Brooklyn, Matthew’s daughter, regarding Matthew’s actions as an aggressor in past domestic violence against Barron’s mother, Joann. On its face, the record reflects the relevancy of this evidence, and as acknowledged, in denying Barron his right to cross-examine this witness offered by the State against him, the trial court violated Barron’s right of confrontation. A trial court may not unduly limit the cross-examination of a State’s witness by a criminal defendant. See Carey v. State, 80 So.3d 131, 134 (¶ 9) (Miss.Ct.App.2012) (“Limitations placed on cross-examination are reviewed for abuse of discretion.”). The State called Brooklyn as a witness and elicited testimony from her establishing that she was the daughter of Matthew, the deceased, and the State entered into evidence a photograph of Brooklyn with her father at a high-school homecoming. The photo painted a picture for the jury of a sympathetic victim leaving behind a grieving daughter and happy family. Barron should have been allowed to cross-examine this witness about that portrait of the happy family she painted for the jury regarding her father’s participation in past domestic abuse. On cross-examination, the defense elicited testimony that her father’s nickname was “Killer,” and testimony as to the frequency of her visitations in the past with her father after he divorced her mother. The trial court prohibited Barron’s counsel from cross-examining her about abuse perpetrated by her father when she was ten years of age. This evidence was relevant to: the witness’s credibility; the defense of justifiable homicide showing force necessary to prevent harm to Joann; the credibility of Joann as a victim with a history of domestic violence; and heat of passion of Barron acting to protect a victim of past domestic violence. As provided recently in Anthony, 108 So.3d at 397 (¶ 5), limitations on cross-examination are reviewed for abuse of discretion. The ruling will be affirmed unless the ruling resulted in prejudice to the accused. Id. (citing Clark v. State, 40 So.3d 531, 542 (¶ 29) (Miss.2010)). Mississippi allows wide open cross-examination concerning anything relevant, including possible bias, interest, or prejudice of the witness. Id. (citing Meeks, 604 So.2d at 755). For purposes of attacking credibility of a witness, evidence of bias, prejudice, or interest of the witness is admissible. Id. (quoting M.R.E. 616). This right is secured by our rules of evidence and, more significantly, by the Confrontation Clause of the federal and state constitutions. See M.R.E. 616. The rulings by the trial court addressed herein violated Barron’s substantial constitutional rights of confrontation and to present evidence in his defense. These rulings by the trial court resulted in prejudice to Barron and manifest injustice by denying him a fair trial. See Herrington, 102 So.3d at 1247 (¶ 21).

¶ 45. Based on the foregoing, I dissent.

ISHEE AND JAMES, JJ., JOIN THIS OPINION.

      . See U.S. Const. amend. VI; Miss. Const. art. 3, § 26.

        . See Miss.Code Ann. § 97-3-35 (Rev.2006); Miss.Code Ann. § 97-3-47 (Rev.2006); Wade v. State, 724 So.2d 1007, 1011 (¶¶ 11-13) (Miss.Ct.App.1998); Lanier v. State, 684 So.2d 93, 97 (Miss.1996).

      . See Rogers v. State, 994 So.2d 792, 803-04 (¶ 45) (Miss.Ct.App.2008); Jones v. State, 827 So.2d 21, 26 (¶ 19) (Miss.Ct.App.2002) (heat of passion manslaughter includes a state of mind characterized by anger, rage, hatred, furious resentment or terror).

      . A Confrontation Clause violation is a violation of a substantive, fundamental right. Corbin v. State, 74 So.3d 333, 337 (¶ 12) (Miss.2011).

      . Brooklyn's parents divorced when she was seven years old.

      . In cases where the issue pertains to who was the initial aggressor, evidence of the character of the deceased is admissible even though the defendant had no knowledge thereof. Freeman, 204 So.2d at 844.

        .See Gray v. State, 549 So.2d 1316, 1321 (Miss.1989) (discussing the plain-error doctrine); see also M.R.E. 401 (relevant evidence); M.R.A.P. 28(a)(3) (noting that appellate courts may address plain error).

      . See also Smith v. State, 986 So.2d 290, 294 (¶ 10) (Miss.2008); Brown v. State, 995 So.2d 698, 703 (¶ 21) (Miss.2008).


source: Caselaw Access Project

author: ROBERTS, J., IRVING, P.J.,

license: Public Domain

text:
    R.L. ROGERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00148-COA.
    Court of Appeals of Mississippi.
    June 11, 2013.
    Rehearing Denied Oct. 8, 2013.
    Certiorari Denied Jan. 23, 2014.

      W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Harrison County Circuit Court found R.L. Rogers guilty of armed robbery and possession of a firearm by a convicted felon. Following unsuccessful post-trial motions for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial, Rogers appeals. Rogers claims that: (1) regardless of the fact that he stipulated that he had previously been convicted of a felony, there was insufficient evidence to support his conviction for felon in possession of a firearm because the prosecution failed to introduce evidence that he had previously been convicted of a felony; (2) the circuit court erred when it allowed the prosecution to introduce a statement that Rogers gave before he had received the familiar warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and (3) he was entitled to a mistrial because members of the jury discussed the first witness’s testimony prior to jury deliberations. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. During April 2010, a man later identified as Rogers robbed Advance America, a cash-advance business in Gulfport, Mississippi. Armed with a chrome .22 caliber Jennings pistol, Roger walked into the business and told Josephine Hurt, the branch manager, to give him some money. Hurt complied. Rogers took the money from Hurt and ordered her and Megan Smith, a customer, to get on the floor. He left after Hurt and Smith followed his instructions.

¶ 8. Officer Lee Seymour of the Gulfport Police Department received a call that a man matching the robber’s description had been spotted on Texas Avenue in Gulfport. When Officer Seymour arrived, a local resident told Officer Seymour that she had seen a man drop something in a bush. Officer Seymour found a pair of black sunglasses in the bush.

¶ 4. Officer Matthew Boone of the Gulf-port Police Department also responded to the Texas Avenue area. Other police officers had discovered Rogers hiding in a bush, but Rogers ran from the police. Officer Boone caught Rogers. Officer Seymour proceeded to the area where Rogers had hidden. Officer Seymour searched the area and found a black fleece jacket, $140 in one of the pockets, $1,170 on the ground, and a chrome .22 caliber Jennings pistol.

¶ 5. At the police station, Investigator Matthew Thomas of the Gulfport Police Department spoke with Rogers. Investigator Thomas asked Rogers if he wanted to make a statement. According to Investigator Thomas, Rogers responded, ‘You guys found the money, my clothes[,] and the gun. Why do I need to make a statement[?]”

¶ 6. Indicted for armed robbery and felon in possession of a firearm, Rogers opted for a trial. Regarding the charge that Rogers was a convicted felon in possession of a firearm, the prosecution intended to present evidence of Rogers’s prior felony conviction. Rogers’s attorney wanted to avoid any prejudicial effect that might result from the jury being aware that Rogers had previously been convicted of a felony. To that end, Rogers’s attorney was willing to stipulate that Rogers had a prior felony conviction.

¶ 7. At trial, the prosecution called Hurt as its first witness. Based on a distinctive gap in Rogers’s teeth, Hurt identified Rogers as the person who robbed her. Hurt also identified Rogers’s pistol.

¶ 8. The circuit court took a brief recess after Hurt testified. During the recess, court security overheard some of the jurors discussing aspects of Hurt’s testimony. Rogers requested a mistrial. The circuit court questioned each juror, and multiple jurors stated that they had discussed or heard other jurors discuss Rogers’s teeth and Rogers’s pistol. The circuit court discovered that one juror in particular had instigated the discussions. Consequently, the circuit court asked Rogers whether he wanted to replace the instigating juror with an alternate. Rogers’s attorney argued that replacing the juror would not cure the offense. Because all of the jurors said that they had not formed an opinion about the evidence or the case, the circuit court denied Rogers’s request for a mistrial. The circuit court consistently reminded the jurors that they were prohibited from discussing the case prior to deliberations.

¶ 9. Next, Smith testified for the prosecution. Smith said that she was present during the robbery. She described the man who robbed the business as a tall black male, and she said he had been wearing a black jacket. However, Smith could not identify the man who robbed the business, but she was able to recognize the pistol.

¶ 10. Officers Seymour and Boone testified regarding their involvement in Rogers’s apprehension. Investigator Thomas also testified. Rogers did not object when Investigator Thomas testified that Rogers had said, “You guys found the money, my clothes[,] and the gun. Why do I need to make a statement!"?]”

¶ 11. When the prosecution rested its case-in-chief, the circuit court reminded the prosecution that the jury was not aware of Rogers’s stipulation that he had previously been convicted of a felony. The prosecution explained that it had not introduced evidence of Rogers’s prior convictions because Rogers’s attorney wanted the stipulation to appear in a jury instruction. Rogers and the prosecution agreed that Rogers would incorporate the stipulation in one of his jury instructions, which had been designated as jury instruction D-11.

¶ 12. Rogers chose to testify. He denied that he had robbed Advance America. Rogers claimed that he and his girlfriend had been arguing while they were driving during the night before the robbery. Rogers testified that he got out of the car to end the argument. According to Rogers, he was drunk, and he fell asleep in some bushes near the area where he was arrested the next day. Rogers said that a woman woke him up the next morning and told him to run, so he ran. Rogers admitted that he made the statement that Investigator Thomas referenced, but Rogers also said that Investigator Thomas had misquoted him. Additionally, Rogers claimed that his statement to Investigator Thomas was sarcastic.

¶ 13. After Rogers rested, the circuit court instructed the jury. In Rogers’s jury instruction D-ll, Rogers and the prosecution stipulated that Rogers had a prior felony conviction. The jury found Rogers guilty of both armed robbery and possession of a firearm by a felon. The circuit court subsequently found that Rogers qualified for enhanced sentencing as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). For armed robbery, the circuit court sentenced Rogers to twenty-three years in the custody of the Mississippi Department of Corrections (MDOC). For possession of a firearm by a felon, the circuit court sentenced Rogers to ten years in the custody of the MDOC. The circuit court set Rogers’s two sentences to run consecutively to one another. Finally, the circuit court held that Rogers was ineligible for parole. Rogers appeals.

ANALYSIS

I. FELON IN POSSESSION OF A FIREARM

¶ 14. At trial, the circuit court gave Rogers’s jury instruction D-ll in which Rogers stipulated that he had previously been convicted of a felony. Nevertheless, for the first time on appeal, Rogers now claims that the prosecution failed to prove that he had a prior felony conviction. Rogers reasons that there was insufficient evidence to convict him for possession of a firearm by a convicted felon.

¶ 15. Rogers did not raise this issue in his motion for a directed verdict or his motion for a judgment notwithstanding the verdict (JNOV). The dissent suggests that Rogers’s proposed peremptory jury instruction preserved the issue. The dissent notes that Rogers’s peremptory instruction “was not limited to the armed-robbery conviction.” However, a motion challenging the sufficiency of the evidence “must state specifically wherein the [prosecution] has failed to make out a prima facie case.” Sheffield v. State, 749 So.2d 123, 126 (¶ 10) (Miss.1999) (quoting Banks v. State, 394 So.2d 875, 877 (Miss.1981)). Additionally, we review the sufficiency of the evidence on the last occasion the challenge was made at trial. Townsend v. State, 939 So.2d 796, 801 (¶ 23) (Miss.2006) (quoting McClain v. State, 625 So.2d 774, 778 (Miss.1993)). Rogers last challenged the sufficiency of the evidence in his motion for a JNOV, and he did not claim that there was insufficient evidence that he had previously been convicted of a felony. Because Rogers never raised this issue in the circuit court, he is procedurally barred from raising it for the first time on appeal. Id.

¶ 16. Despite the fact that Rogers does not argue that his conviction for felon in possession of a firearm was “plain error,” the dissent would have to find plain error to reach its result. Plain error applies to an “obvious” error that a trial court should have cured even in the absence of an objection. See Conners v. State, 92 So.3d 676, 682-84 (¶¶ 15-19) (Miss.2012) (plain error occurred when Mississippi Crime Laboratory’s reports were introduced without proper sponsoring testimony in violation of a defendant’s Sixth Amendment rights). Rogers does not claim that the circuit court erred when it gave jury instruction D-11, in which Rogers stipulated that he had previously been convicted of a felony. Notwithstanding that neither issue is presently before this Court, the dissent tacitly finds that the circuit court should have refused Rogers’s jury instruction, and the circuit court should have sua sponte found that there was insufficient evidence that Rogers had previously been convicted of a felony.

¶ 17. When reviewing a challenge to the legal sufficiency of the evidence, appellate courts consider the evidence “in the light most favorable to the prosecution.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). If “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!,]’ ” appellate courts will not disturb the verdict. Id. (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). However, should the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.” Id. (citations omitted).

¶ 18. Mississippi Code Annotated section 97-37-5(1) (Rev.2006) provides that “[i]t shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm ... unless such person” qualifies for one of three expressly stated exceptions. Consequently, the prosecution was required to prove that on the date charged in the indictment: (1) Rogers possessed a firearm, and (2) Rogers had been previously convicted of a felony. See Jones v. State, 920 So.2d 465, 473 (¶ 24) (Miss.2006).

¶ 19. Indicted as a habitual offender, Rogers had at least four prior felony convictions. The indictment charged that Rogers had a prior felony conviction in that he had been convicted of burglary of a dwelling in Mississippi. Rogers also had an additional conviction for burglary of a dwelling. In Washington, Rogers had been convicted of “first degree robbery with a deadly weapon” during September 1991. Approximately one year later, a Washington federal court convicted Rogers for “felon in possession of a firearm” as an “armed career criminal.” For that felony conviction, Rogers was sentenced to 210 months in federal prison. Not long after his release from federal custody, Rogers robbed the cash-advance business in Gulf-port.

¶ 20. Quite appropriately, more than a week before Rogers’s scheduled trial, his attorney filed two motions in limine intended to prevent the prosecution from introducing evidence of Rogers’s prior convictions. According to Rogers’s attorney, evidence of his prior convictions was unduly prejudicial under Rule 404(b) of the Mississippi Rules of Evidence. During a hearing on Rogers’s motions in li-mine, the prosecution announced that it was prepared to introduce evidence of Rogers’s prior convictions by way of Rogers’s pen-pack and his judgments of conviction. However, Rogers’s attorney offered to stipulate that Rogers had previously been convicted of a felony. Specifically, Rogers’s attorney wanted to use a jury instruction to stipulate that Rogers had previously been convicted of a felony. Although the circuit judge expressed concern regarding the lack of a written stipulation, Rogers’s counsel unequivocally said she wanted the stipulation to be included in a jury instruction.

¶ 21. Before voir dire, Rogers’s attorney reiterated that Rogers had agreed to stipulate that he had previously been convicted of a felony. After the prosecution presented its case-in-chief, Rogers moved for a directed verdict. However, Rogers only challenged the sufficiency of evidence related to his armed-robbery charge. In other words, Rogers did not claim there was insufficient evidence that he was a felon in possession of a firearm. Even so, the circuit judge explicitly noted that nothing had been read to the jury concerning the verbal stipulation that Rogers had previously been convicted of a felony. The following exchange then occurred:

[The prosecution]: Right. As I am aware [Rogers’s attorney] has [the stipulation] as D-ll in her jury instructions.
The [e]ourt: I think she does, but I also — I think what it talks about is it’s a limiting instruction, correct?
[Rogers’s attorney]: I’m not sure what other type of instruction other than the one that I showed the [c]ourt earlier because that’s the language that’s out of ... Rigby [v. State, 826 So.2d 694 (Miss.2002) ], which is what [the Mississippi Supreme Court] crafted after reading ... [Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) ].

Eighteen lines later in the transcript, Rogers’s attorney further stated, “Just so the record is clear[,] ... I did say that I would stipulate to this rather than putting the pen pack in. I do agree that [regarding] the felony referenced in count two of the indictment[,] ... there is sufficient impact information on that prior conviction.”

¶ 22. During the conference on jury instructions, Rogers submitted jury instruction D-ll, which states:

The [c]owi instructs the jury that [Rogers ] has stipulated to the fact that he has a felony conviction that occurred on a date prior to April 24, 2010. The [c]ourt instructs the jury that [Rogers’s] prior conviction ... may not be considered as evidence that [Rogers] committed the offense with which he is currently charged in Count 2 of the [i]ndietment. It may, however, be used for the limited and sole purpose of proving the prior conviction element of the crime of unlawfully possessing a firearm after having previously been convicted of a felony.

(Emphasis added). Essentially, jury instruction D-ll is a combination of a factual stipulation, a peremptory instruction, and a limiting instruction. In State v. Flippen, 344 N.C. 689, 477 S.E.2d 158, 164 (1996), the North Carolina Supreme Court addressed circumstances in which the prosecution and a defendant who was facing the death penalty had stipulated that the defendant had no significant history of prior criminal activity. The Flip-pen court noted that “in those cases where the evidence is truly uncontradict-ed, the defendant is ... entitled to a peremptory instruction when he requests it.” Id. at 165. Technically, there was no evidence that Rogers had previously been convicted of a felony. But, as the Flippen court discussed, “[a] stipulation entered into between the parties has the effect of removing a question of fact from the jury’s consideration. Neither party need present evidence or show proof of the existence of such facts that are contained within the stipulation.” Id. “In other words, the stipulation is substituted for proof[,] and [it] dispenses with the need for evidence.” Id. Similarly, the Mississippi Supreme Court has held that the effect of a stipulation to an element of a crime is that the element is conclusively established without the State having to submit further proof to the fact-finder. See e.g., Randall v. State, 806 So.2d 185, 236 (¶ 152) (Miss.2001).

¶ 23. Rogers’s attorney explicitly stipulated into the record that Rogers had previously been convicted of a felony. During a pretrial hearing, before voir dire, and during the hearing on Rogers’s motion for a directed verdict, Rogers’s attorney repeatedly expressed her preference that the stipulation appear in a jury instruction. Rogers’s attorney patterned that jury instruction on the jury instruction countenanced by the supreme court in Rigby v. State, 826 So.2d 694, 702-03 (¶ 14) (Miss.2002), which allowed a defendant charged with a subsequent DUI offense to stipulate that he had previously been convicted of a DUI. The instruction in Rigby was also submitted with a limiting instruction to prevent the possibility of any undue prejudice that might stem from the jury hearing specific evidence of the prior conviction. Id. According to Rigby, “[c]ertain procedural safeguards are warranted if a defendant offers to stipulate to previous DUI convictions. The trial court should accept such stipulations, and they should be submitted to the jury with a proper limiting instruction.” Id. at 702 (¶ 14). That is exactly what happened in this case.

¶ 24. It would have been preferable for Rogers and the prosecution to enter a written stipulation into the record and/or have the judge read the stipulation to the jury before completion of the prosecution’s case-in-chief. However, a written stipulation is not required by Rigby or any other Mississippi case. In Casas v. State, 735 So.2d 1053, 1055-57 (¶¶ 1, 16) (Miss.Ct.App.1999), this Court affirmed a conviction after a defendant’s attorney verbally stipulated that substances seized in a search were marijuana and cocaine. Similarly, in Waldon v. State, 749 So.2d 262, 264-265 (¶¶ 1, 5) (Miss.Ct.App.1999), this Court affirmed a forgery conviction after a defendant’s attorney verbally stipulated to evidence that did away with the necessity of calling a handwriting analyst as a witness. Verbal stipulations as to prior convictions occur in other jurisdictions. Still, reducing a stipulation to writing has a significant advantage of removing any uncertainty as to the terms. However, there is no uncertainty in this case, and the record is clear that Rogers received exactly what he sought. Rogers conceded that the prosecution did not have to prove that he had previously been convicted of a felony. In return, Rogers avoided the possible prejudicial effect of the jury’s awareness of his specific prior bad acts as set forth in the pen-pack that the prosecution intended to introduce.

¶ 25. Nevertheless, the dissent concludes that the circuit court erred despite the fact that Rogers’s attorney, the prosecution, and the circuit court all complied with the procedure set forth in Rigby regarding stipulation of prior convictions. The circuit court did not err when it accepted Rogers’s attorney’s numerous verbal stipulations that Rogers had previously been convicted of a felony. Rogers’s attorney repeatedly opted to instruct the jury that Rogers had previously been convicted of a felony. In other words, even if we were to assume that there was some error in the circuit court’s decision to allow Rogers’s attorney to use a jury instruction to stipulate that Rogers had been convicted of a felony, it was an invited error that Rogers’s attorney created. Reversible error does not occur when a defendant’s own actions open the door to error, and a circuit court either issues a curative instruction or the defense declines the cure. See e.g., Pittman v. State, 42 So.3d 556, 560 (¶ 12) (Miss.Ct.App.2009) (mistrial not warranted when defense’s actions led to allegedly improper admission of evidence of prior bad acts, and defense counsel declined to have the court provide a corrective instruction); Saunders v. State, 733 So.2d 325, 331 (¶28) (Miss.Ct.App.1998) (mistrial not warranted when defense opened the door to prior bad acts by asking about defendant’s parole eligibility for prior aggravated-assault charge).

¶ 26. The record is clear that the prosecution was prepared to introduce a pen-pack and/or a sentencing order to prove that Rogers had previously been convicted of a felony. Rogers’s attorney argued that those documents could unfairly prejudice the jury. Additionally, Rogers’s attorney repeatedly argued that she should be allowed to stipulate via a Rigby instruction that Rogers had previously been convicted of felony. The circuit court gave Rogers precisely what his attorney requested. There is no merit to the concept that the circuit court erred when Rogers received the benefit of his decision at trial.

II. STATEMENT

¶ 27. Rogers asserts that his statement to Investigator Thomas was inadmissible because Investigator Thomas failed to inform him of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prior to asking Rogers if he would like to make a statement. At the outset, we note that Rogers failed to object at trial to Investigator Thomas’s testimony-regarding his statement. Rogers never moved to suppress his statement. Therefore, Rogers “must rely on plain error to raise the issue on appeal, because otherwise it is procedurally barred.” Parker v. State, 30 So.3d 1222, 1227 (¶14) (Miss.2010) (citing Walker v. State, 913 So.2d 198, 216 (¶ 45) (Miss.2005)). “Plain error exists where such error affects the defendant’s substantive/fundamental rights, even though no objection was made at trial.” Id. Our supreme court has previously refused to review an alleged Miranda violation for plain error. See Williams v. State, 971 So.2d 581, 590 (¶ 29) (Miss.2008) (stating that “[a]s a general rule, constitutional questions not asserted at the trial level are deemed waived”). Because Rogers failed to object to Investigator Thomas’s testimony regarding Rogers’s statement, this issue is procedurally barred, and we decline to review the challenge for plain error.

III. MISTRIAL

¶ 28. Finally, Rogers contends that the circuit court erred in failing to declare a mistrial after several members of the jury discussed Hurt’s testimony before the jury deliberated. When questioned by the circuit court, eight out of thirteen jurors admitted that they had either discussed or heard other jurors discussing various aspects of Hurt’s testimony. However, “not every incident of juror misconduct requires a new trial.” Turner v. State, 748 So.2d 706, 709 (¶ 8) (Miss.1999) (citations omitted).

¶ 29. Whether to grant a mistrial is left to the sound discretion of the circuit court. Caston v. State, 823 So.2d 473, 496 (¶ 76) (Miss.2002). Therefore, “[t]he standard of review for [the] denial of a motion for [a] mistrial is abuse of discretion.” Id. at 497 (¶ 76) (citations omitted). “The failure to grant a misti'ial is considered an error only where there is a determination of an abuse of discretion by the trial judge[;] otherwise the decision will not be disturbed on appeal.” Id. (citations omitted).

¶ 30. Here, after learning of the conversation between the jurors, the circuit court immediately questioned each juror as to what he or she may have heard and who may have said it. None of the jurors, including the juror who began the discussion of Hurt’s testimony, said that they had formed an opinion regarding the outcome of the case or the evidence that they had heard. The circuit court gave the prosecution and Rogers’s attorney the opportunity to question each juror. The circuit court also asked Rogers’s attorney if she wanted to replace the juror that began the conversation. Rogers’s attorney declined. The circuit court denied the motion for a mistrial and instructed the jurors again that they were not allowed to discuss the case until they had heard all of the evidence. Absent evidence to the contrary, “it is presumed that jurors follow the instructions of the court.” Moffett v. State, 49 So.3d 1073, 1108 (¶ 115) (Miss.2010) (quoting Williams v. State, 684 So.2d 1179, 1209 (Miss.1996)).

¶ 31. Rogers does not allege that the jury was unfair to him or partial to the prosecution. And the record does not indicate that the jury was anything but fair and impartial. As such, the circuit court did not abuse its discretion in refusing to grant a mistrial. There is no merit to this issue.

¶ 32. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ARMED ROBBERY, AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY-THREE YEARS, AND COUNT II, UNLAWFUL POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE AS A HABITUAL OFFENDER OF TEN YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

IRVING, P.J.,

concurring in part and dissenting in part:

¶ 33. While I agree with the majority’s decision to affirm Rogers’s armed-robbery conviction, I must respectfully dissent from the majority’s decision to affirm Rogers’s conviction for the unlawful possession of a firearm. In my opinion, the State failed to prove Rogers’s prior-felony status by either a stipulation, a certified record of a prior felony conviction, or other evidence adduced through a witness during the evidence phase of Rogers’s trial. Therefore, there is insufficient evidence to sustain his conviction of possession of a firearm by a convicted felon. I would reverse and render Rogers’s unlawful-possession conviction.

¶ 34. Before delving into the discussion of the issue, I must correct the majority’s misstatement of the central issue. As to the central issue, the majority says: “Rogers claims that: (1) regardless of the fact that he stipulated that he had previously been convicted of a felony, there was insufficient evidence to support his conviction for felon in possession of a firearm because the prosecution failed to introduce evidence that he had previously been convicted of a felony[.]” Maj. Op. at (¶ 1). In fact, Rogers states the issue as follows: “Whether the [Sjtate produced evidence of a previous conviction of a felony crime for a jury to have sufficient evidence to convict appellant on the charge of unlawful possession of a firearm by a convicted felon[.]” I have perused the record with great care, and I have not been able to find any place where a stipulation was read to the jury. For sure, during the course of the trial, Rogers stated that he was agreeable to stipulating that he had a prior felony conviction and that he wanted to handle the stipulation through a jury instruction. It is also accurate that during the jury-instruction conference, Rogers submitted an instruction that informed the jury of his prior-felony status, and the circuit court gave the instruction, which the court described as a limiting instruction, not a stipulation of fact.

¶ 35. The majority and I disagree as to whether the procedure that was used was sufficient to allow the State to meet its burden — during the evidentiary phase of the trial — of proving every element of the charged offense of possession of a firearm by a convicted felon. Apparently, the majority either believes (1) that the State had met its burden because Rogers had agreed to stipulate that he was a convicted felon even though the stipulation had not been read to the jury or (2) that the submission of the jury instruction cured the problem. Not at any time prior to the jury being instructed had the jury been presented evidence of Rogers’s prior felony conviction either by proof through a witness from the witness stand, .by admission of a certified record of a previous conviction, or by an oral or written stipulation that the State and Rogers agreed that Rogers was a previously-convicted felon.

¶ 36. A proper resolution of today’s case turns on the answer to two vital questions. The first question is whether the State is relieved of its responsibility to prove an essential element of a crime when a defendant states that he is willing to stipulate to the element, but the stipulation, whether oral or written, is never placed before the jury at any time prior to the close of the evidentiary phase of the trial. The second question is whether the State may prove a crucial element of its case through a jury instruction that instructs the jury that it may consider an elemental fact that was never presented to the jury during the evidentiary phase of the trial.

¶ 37. The answer to both of the questions is quite evident to me. The answer to the first question is clearly in the negative, as the State always has the burden of presenting evidence from which the jury may find that all of the essential elements of the crime have been proved. See Warren v. State, 709 So.2d 415, 420 (¶ 25) (Miss.1998). The answer to the latter question is a little less clear but clear enough. The Mississippi Supreme Court has stated the purpose and role of jury instructions. They are not testimonial and cannot add to the body of factual evidence adduced during the trial. Rather, their sole purpose is to instruct the jury as to the application of the law to the facts. Additionally, there must be an existing evidentiary basis to support an instruction before it is lawful for it to be given. See Anderson v. State, 79 So.3d 501, 505 (¶ 15) (Miss.2012). Therefore, it logically follows that the answer to the second question is also in the negative. Yet, the majority, without citing any authority for its position, apparently finds that the jury instruction submitted by Rogers cured the problem.

¶ 38. The majority also finds that Rogers is proeedurally barred from raising the issue regarding the insufficiency of the evidence because he only challenged the sufficiency of the evidence with respect to his robbery conviction. This position is based on a misreading of the entire record. While it is true that Rogers only challenged the sufficiency of the evidence regarding his robbery conviction in his post-trial motion, he submitted a peremptory instruction (Instruction D-l), which was refused by the circuit court, that was not limited to the armed-robbery conviction. It is well-settled law that a peremptory instruction implicates the sufficiency of the evidence, and the refusal of the instruction by the trial court preserves the issue for appellate review. Magee v. State, 966 So.2d 173, 179 (¶ 13) (Miss.Ct.App.2007).

¶ 39. For the reasons presented, I dissent from that portion of the majority opinion affirming Rogers’s conviction for possession of a firearm by a convicted felon.

BARNES, J„ JOINS THIS OPINION.

      . The basis for the Rigby decision was the United States Supreme Court’s decision in Old Chief, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574. According to the Rigby court:

        Old Chief held that "a district court abuses its discretion if it spurns an offer to stipulate to a prior conviction and admits the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction.”

        Rigby, 826 So.2d at 699 (¶ 8) (quoting Old Chief, 519 U.S. at 174, 117 S.Ct. 644)).

      . See, e.g., Littlejohn v. State, 320 Ga.App. 197, 739 S.E.2d 682, 689 (2013) (oral stipulation by counsel that was entered into the record in a pretrial hearing obviated necessity of proof of prior burglary conviction); State v. Powell, 732 S.E.2d 491, 495 (N.C.Ct.App.2012) (defendant’s oral stipulation to the existence of out-of-state felony drug conviction was sufficient evidence for enhanced sentencing); Bass v. State, 160 S.W.3d 604, 605-06 (Tex.App.2005) (verbal stipulation entered into the record prior to voir dire as to prior DUI convictions was sufficient proof of previously convicted status, and the prosecution was not required to introduce documentary proof).


author: ISHEE, J.,

text:
    Julius Wesley KIKER a/k/a Julius W. Kiker a/k/a Julius Kiker, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00089-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.
    Rehearing Denied Oct. 29, 2013.
    Certiorari Denied Jan. 23, 2014.

      Kevin D. Camp, Jackson, John Michael Duncan, attorneys for appellant.

      Office of the Attorney General by Elliott George Flaggs, John R. Henry Jr., attorneys for appellee.
    Before IRVING, P.J, ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:-

¶ 1. On March 6, 2002, Renee Kiker was shot after a heated argument with her husband, Julius Kiker. Renee died as a result of the gunshot. Kiker was indicted in the George County Circuit Court for her murder. In his first trial, Kiker was convicted of murdering Renee.. However, the Mississippi’ Supreme Court reversed his conviction and.remanded the case to the trial court. A second trial was held before the same trial judge who presided over the original trial. Before trial, Kiker filed a motion for recusal of the trial judge, which was denied. Kiker was convicted of deliberate-design murder and sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). Kiker now appeals, arguing (1) the Weathersby rule is applicable in this case; therefore, the trial court erred in denying his motion for a directed verdict; and (2) the trial judge erred by denying the motion for recusal. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 6, 2002, Kiker and Renee were engaged in a heated argument. Kiker claimed that during the argument, Renee burned- his clothes and destroyed his belongings. He further claimed that she physically assaulted him. At approximately 5:00 p.m., Kiker called the George County Sheriffs Department because of the argument. Deputy Sheriff Lewis Howell responded to the call. After speaking with the couple, Deputy Howell advised Renee to leave the house. Renee complied, and told Deputy Howell that she had removed all of the weapons from the house. Deputy Howell stated that he left the house at approximately 6:00 p.m.

¶ 3. Renee left the marital home and went to the house of their neighbor, Anthony Buckley. Renee returned to the marital home less than an hour after' she had left. According to Kiker, when Renee returned, he was on the phone with his brother. He stated that Renee then cut the telephone line. They argued for several minutes at which point Kiker went into the backyard of the home. Kiker claimed that Renee followed him into the yard with a loaded handgun and threatened him. He stated that he approached Renee in an attempt to disarm her. However, during the struggle two shots were fired. He claimed that Renee pulled the trigger for both shots. One shot struck Renee and killed her.

¶ 4. Buckley testified that he heard gunshots between 6:30 p.m. and 7:00 p.m. However, the sheriffs department was not called to the house until 9:44 p.m., when Kiker’s mother called 911. Officer Eric Purvis responded to the call. Upon his arrival, he saw Kiker pulling a blanket over something outside of the home. Kiker was holding a weapon in his hand. Officer Purvis demanded that he drop the weapon and then placed Kiker in custody for safety reasons. Officer Purvis then looked under the blanket and discovered Renee’s body. The murder weapon, a .357 Magnum revolver, was also found on top of the blanket. Kiker was then arrested.

¶ 5. At trial, the State presented several lay witnesses. Wade Bowlin, Renee’s son and Kiker’s stepson, testified about the events of March 6, 2002. Bowlin testified that on the day in question, his mother picked him up from school. He noticed that she had placed the four guns from their house in the back of her vehicle. When they arrived home, Renee and Kiker began to argue. During the argument, Bowlin noticed a .357 revolver in Kiker’s front pants pocket. Thereafter, Renee began burning Kiker’s clothing, and Bowlin’s aunt came and picked him up from the house.

¶ 6. Dee Tompkins, a neighbor and Renee’s uncle, saw Kiker on the night in question. Kiker had asked to use his phone to make a long-distance call; however, Tompkins did not have long-distance calling. Tompkins testified that after Kiker mentioned the clothes Renee had burned, Kiker stated: “[S]he will burn for that.” Thereafter, at approximately 6:40 p.m., Kiker proceeded in the direction of his house, and Tomkins left to purchase cigarettes.

¶ 7. The State also presented expert testimony. Dr. Steven Hayne, the chief medical examiner, performed the autopsy on Renee’s body. He testified that the gunshot entrance wound was through Renee’s cheek. The wound was stellate or star shaped, which represents a “hard-contact” wound, indicating the barrel of the gun had hard contact with her cheek upon firing. He further found abrasions on her right arm and thigh that occurred at or near the time of her death. In addition, David Whitehead, an expert with the Mississippi Crime Lab, testified that no gunpowder residue was found on Renee’s hands. Finally, a deposition by Dr. John VanDerwood was read into evidence to impeach Kiker’s testimony. The deposition indicated a prior violent altercation between the parties in which Renee was left with a laceration on her head and bruises on her chest.

¶ 8. On January 18, 2012, a second jury trial began in this case. Before the trial began, Kiker filed a motion for recusal, claiming the trial judge was not impartial since he was the trial judge in the original case. The motion was denied. On January 20, 2012, Kiker was found guilty of deliberate-design murder. He was then sentenced to life in the custody of the MDOC. Kiker then filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a motion for a new trial. His motion was denied, and Kiker now appeals.

DISCUSSION

I. Weathersby Rule

¶ 9. In Kiker’s first argument on appeal, he asserts the trial court erred by failing to apply the Weathersby rule and, therefore, by denying his motion for a directed verdict. On appeal, when considering whether the evidence was sufficient in the face of a motion for a directed verdict, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). We will find the evidence sufficient, “if a review of the evidence reveals that it is of such quality and weight that, ‘having in mind the beyond a reasonable doubt burden of proof standard," reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense[.]’ ” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 10. The Weathersby rule states: It has been for some time the established rule in this state that where the defendant ... [is] the only eyewitness[ ] to the homicide, [his] version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts[,] or by the facts of common knowledge.

Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933) (citations omitted).

¶ 11. Here, although Kiker was the only eyewitness to the crime, the State’s witnesses contradicted several of his statements. First, Kiker claimed that Renee took all of the guns out of the house earlier in the day. Deputy Howell and Bowlin confirmed that Renee had taken weapons out of the house. However, Bow-lin saw the .357 revolver on Kiker’s person on the afternoon of the incident, after Renee had removed the guns from the house. Therefore, although Kiker claims that Renee had taken all of the weapons, including the murder weapon, testimony established that he was actually in possession of the .357 revolver. As such, his allegation that she had the murder weapon in her possession was contradicted by Bowlin.

¶ 12. Furthermore, there was no gunpowder residue found on Renee’s hands. During Kiker’s testimony he stated:

Q: When the gun fired the first time, it was Renee pulling the trigger, not you?
A. Yes, sir.
Q. And when that gun fired the second time, it was Renee pulling the trigger, not you?
A: Yes, sir.

The fact that no gunpowder residue was found on Renee’s hands discounts Kiker’s claim that Renee actually pulled the trigger of the gun.

¶ 13. Finally, while not in direct contradiction of Kiker’s version of events, several facts place Kiker’s self-defense theory in question. First, Tompkins testified to hearing Kiker say “she will burn for that” in reference to Renee. Next, although Kiker claims he was acting in self-defense, he never called the police. The police were not alerted until Kiker’s mother called 911 nearly three hours after Renee was shot. The jury could certainly have found this inconsistent with the way an individual would act if the shooting was actually in self-defense. Finally, there was a history of violence between Kiker and Renee. We find the application of the Weathersby rule would not have been appropriate in this ease, and the trial court properly denied Kiker’s motion for a directed verdict. This issue is without merit.

II. Motion for Recusal

¶ 14. Kiker argues that the trial judge should have recused himself from the second trial because he presided over the original trial. Canon 3(E)(1) of the Mississippi Code of Judicial Conduct states: “Judges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances.... ” “When a judge is not disqualified under the constitutional or statutory provisions, ‘the propriety of his or her sitting is a question to be decided by the judge, and on review, the standard is manifest abuse of discretion.” Farmer v. State, 770 So.2d 953, 956 (¶ 6) (Miss.2000) (quoting Ruffin v. State, 481 So.2d 312, 317 (Miss.1985)).

¶ 15. The Mississippi Supreme Court has recognized that “it is not unusual for a judge to sit on successive trials following mistrials or to hear on remand a case where he previously has heard and ruled on the evidence.” Id. at 956-57 (¶ 7) (quoting Garrison v. State, 726 So.2d 1144, 1151 (Miss.1998)). The only evidence of bias cited by Kiker is the trial judge’s failure to apply the Weathersby rule. However, as noted above, the Weathersby rule is not applicable to this case. Accordingly, Kiker has failed to present any evidence of prejudice, bias, or abuse of discretion on the part of the trial judge. This issue is without merit.

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

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

      . The first trial resulted in Kiker’s conviction. However, the case was reversed and remanded by the Mississippi Supreme Court based on a conflict of interest between Kiker and his attorney in the original trial. Kiker v. State, 55 So.3d 1060, 1068 (¶ 23) (Miss.2011).

      . Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933).


author: CARLTON, J.,

text:
    Alfred STEWART, Jr. a/k/a Alfred Lee Stewart, Jr. a/k/a Alfred L. Stewart a/k/a Alfred Stewart, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01112-COA.
    Court of Appeals of Mississippi.
    Jan. 21, 2014.
    Office of State Public Defender by George T. Holmes, Mollie Marie McMillin, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

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

for the Court:

¶ 1. Alfred Stewart Jr. was convicted of sale of cocaine in the Lauderdale County Circuit Court and sentenced to twelve years in the custody of the Mississippi Department of Corrections (MDOC), with nine years suspended, followed by five years of post-release supervision. The trial court also ordered Stewart to pay a $5,000 fíne and court costs. Stewart appeals his conviction and sentence. Finding no arguable appellate issues in this case, and finding that the trial court’s judgment of conviction is supported by the record, we affirm Stewart’s conviction and sentence.

FACTS

¶2. On November 17, 2009, Brandon Johnson contacted Officer Christopher Scott, a police officer with the Meridian Police Department assigned to the East Mississippi Drug Task Force, with information about a potential drug sale. Johnson had worked for the Task Force before as a confidential informant and was paid to make drug purchases. Officer Scott testified that Johnson informed him that he had contacted “BC, Boo Cooley,” and arranged to buy cocaine from him. Officer Scott knew “Cooley” to be Alfred Stewart.

¶ 3. Johnson went to the Task Force office, where officers searched him. Officer Scott testified that he conducted the search of Johnson, and he only required Johnson to remove his shirt. He also searched Johnson’s pants’ pocket and waistband.

¶4. The officers called Stewart and ordered $100 worth of cocaine. Officer Scott outfitted Johnson with a covert camera and an electronic listening device. The officers also searched Johnson’s car and installed an additional electronic listening device in the car.

¶ 5. The officers gave Johnson $100 in $20 bills. Johnson originally planned to meet Stewart at the Walmart on Highway 19 in Meridian. However, during the drive to Walmart, Stewart changed the meeting location, and Johnson instead met Stewart at the Quiznos near the Walmart. Johnson stopped once during his drive, at the request of police officers, so that he could adjust some of the equipment installed in his car.

¶ 6. Once Johnson arrived at Quiznos, he waited outside of his car for a few minutes before Stewart arrived. The video taken of the transaction between Johnson and Stewart shows Johnson walking up to Stewart’s car window, and the two then conversing. Counsel for Stewart asserts that the video does not reveal anything changing hands.

¶ 7. After Johnson left his meeting with Stewart, he drove to meet the police officers at the Task Force office. Officers contacted Johnson and advised him to slow down so that he did not arrive at the office before them, explaining that they needed to take immediate control of the drugs. Johnson testified that he still arrived at the Task Force about ten minutes before the officers arrived. When the officers arrived, Johnson turned over the cocaine.

¶ 8. Officer Scott admitted at trial that he failed to search Johnson’s groin area prior to his meeting with Stewart. Officer Scott also admitted that it was possible that Johnson could have hidden the drugs in that area prior to meeting with the officers.

¶ 9. Johnson testified that he began working with the police as an informant in 2005, after running into legal problems. Johnson confirmed that on the day at issue in this case when he purchased drugs from Stewart, officers searched him and searched his car at the Task Force office. Johnson planned to meet Stewart at Wal-mart, but when Johnson called Stewart to inform him that he was near Walmart, Stewart then advised him to instead come to the nearby Quiznos restaurant. Johnson explained that he met Stewart at Quiz-nos, bought $100 worth of cocaine, and left Quiznos after meeting with Stewart.

¶ 10. The defense called Roshanda McMillan to testify at trial. McMillan testified that she previously dated Stewart for about six months and was dating Johnson at the time he bought the drugs from Stewart, as alleged in the charges in this case. McMillan also dated Johnson previously for about four or five years, on and off. McMillan alleged that when Johnson discovered that she was dating Stewart, he grew angry. McMillan claimed that Johnson became violent with her when he thought she talked on the phone with Stewart. McMillan also testified that Johnson had Stewart “on deck” to set up.

¶ 11. The jury returned a verdict finding Stewart guilty of sale of cocaine, and the trial court sentenced Stewart to serve a term of twelve years in the custody of the Mississippi Department of Corrections (MDOC), with nine years suspended, and five years of post-release supervision. The trial court directed that after Stewart completed three years of incarceration, he would be placed under the supervision of the MDOC for the supervised portion of his sentence. The trial court also ordered that Stewart pay a fine of $5,000, a $300 crime-lab fee, court costs of $445.50, and an appearance-bond fee of $300, for a total of $6,055.50.

¶-12. Stewart now appeals his conviction and sentence. The Office of State Public Defender, Indigent Appeals Division, represents Stewart, and his attorney filed a Lindsey brief asserting that she found no error in the trial court proceedings. Lindsey v. State, 939 So.2d 743 (Miss.2005).

DISCUSSION

¶ 13. In Lindsey, the Mississippi Supreme Court implemented the following procedure to govern cases in which counsel for indigent defendants find no arguable issues in the record to present on appeal:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)-(4), (7); see also Smith v. Robbins, 528 U.S. 259, 280-81, 120 S.Ct. 746, 145 L.Ed.2d 756 ... (2000) (stating that “counsel’s summary of the case’s procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.”).
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Catchings v. State, 58 So.3d 58, 54-55 (¶ 6) (Miss.Ct.App.2011) (quoting Lindsey, 939 So.2d at 748 (¶ 18)).

¶ 14. The record reflects that Stewart’s appellate counsel complied with the procedures set forth in Lindsey. The brief complied with Rule 28(a)(1)—(4) and (7), including a statement of the case and a statement of the facts with record citations. Appellate defense counsel provided her finding that, based on a thorough examination of the record, the case presented no arguable issues on appeal that could be presented to this Court on Stewart’s behalf. Counsel specifically asserted that she reviewed the record concerning: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of Stewart’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prose-cutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing. Lindsey, 939 So.2d at 748 (¶ 18). Counsel confirmed that she sent a copy of the brief to Stewart, advising Stewart that, while she found no arguable issues in the record, Stewart had the right to file a pro se supplemental brief. Stewart failed to file a pro se brief.

¶ 15. The evidence in the record provides proof of the elements of the charged offense sufficient for the jury to find Stewart guilty beyond a reasonable doubt. See McGlasten v. State, 109 So.3d 620, 623-24 (¶¶ 8-11) (Miss.Ct.App.2013). We also acknowledge that determining the credibility of witnesses and resolving inconsistent statements lie within the province of the jury. Doe v. Stegall, 900 So.2d 363, 366-67 (¶ 15) (Miss.Ct.App.2003).

¶ 16. After our own review of the record, we similarly find no arguable appellate issues in this case. We also find that the evidence in the record supports Stewart’s conviction and the judgment of the trial court. See McGlasten, 109 So.3d at 623-24 (¶¶ 8-11). We therefore affirm Stewart’s conviction and sentence.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH NINE YEARS SUSPENDED, AND FIVE YEARS OF REPORTING POST-RELEASE SUPERVISION, AND TO PAY A FINE OF $5,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

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

      . See Lindsey v. State, 939 So.2d 743, 748 (¶ 18) (Miss.2005).


author: GRIFFIS, P.J.,

text:
    Maxine GIBSON, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2013-CC-00084-COA.
    Court of Appeals of Mississippi.
    Jan. 21, 2014.
    Maxine Gibson, pro se.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Maxine Gibson appeals an unemployment-compensation-benefits decision. We find no error and affirm.

FACTS

¶ 2. Gibson began her employment with Comcast Cablevision on February 22, 2010. Her position was a customer-account executive. She was terminated on October 21, 2011, due to excessive tardiness in violation of Comcast’s attendance policy and a failure to take reasonable steps to improve her attendance at work.

¶ 3. Comcast established a no-fault attendance policy that is based on the number of tardies. If an employee received four tardies within a six-month time period, the employee is encouraged to improve her attendance. If there is a fifth tardy, the employee is subject to a verbal warning about the violation of the tardiness policy. The employee receives a written warning after the seventh tardy. At the ninth tardy, the employee receives yet another verbal warning. If the employee receives ten tardies, the employee is subject to termination. Once an employee is in the progressive disciplinary process, meaning after the first four tardies received within the six-month period, the last warning stays active for six months. During that time, if there is another occurrence, the next step in the disciplinary process is taken.

¶ 4. Gibson received a copy of the employee handbook, which contained the no-fault attendance policy, during her orientation. Gibson received eight tardies before she was issued a final warning on August 29, 2011. She was informed that any further incident of tardiness would result in her termination.

¶ 5. Thereafter, Gibson was tardy on October 2, 11, 12, and 14, 2011. On October 21, 2011, Gibson was terminated.

¶ 6. Gibson filed for unemployment benefits with the Mississippi Department of Employment Security (“MDES”). During her hearing, Gibson admitted that she was fired after receiving multiple tardies after a final warning regarding termination because of her eight previous tardies. Gibson also admitted she was aware of Com-cast’s no-fault attendance policy in the employee handbook. Gibson claimed that she violated the attendance policy because of the failure of the computer equipment. Because the computer equipment was faulty, Gibson argued, she was unable to log-in on time to report to work. She claimed she was unable to report the computer problems to her supervisor, because her supervisor was not present. In response, Comcast presented testimony that the supervisor was present and on call, and the computer equipment was checked after Gibson’s complaint. The equipment was found to be working properly.

¶ 7. After the hearing, the MDES claims examiner found that Gibson was discharged due to the misconduct of her excessive tardiness in violation of Comcast’s attendance policy. As a result, Gibson was determined to be ineligible to receive unemployment benefits. The claims examiner’s decision was affirmed by the MDES administrative law judge (“ALJ”).

¶ 8. Gibson appealed to the MDES Board of Review. The Board affirmed the ALJ’s decision. Gibson then appealed to the Circuit Court of Hinds County. The circuit court affirmed the Board’s decision. It is from that decision that Gibson now appeals.

STANDARD OF REVIEW

¶ 9. The standard of review that this Court employs in administrative-agency decisions is that “[a]n agency’s conclusions must remain undisturbed unless the agency’s order[:] 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates [the claimant’s] constitutional rights.” Maxwell v. Miss. Emp’t. Sec. Comm’n, 792 So.2d 1031, 1032 (¶ 7) (Miss.Ct.App.2001). Upon judicial review, “the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” Miss.Code Ann. § 71-5-531 (Rev.2011).

DISCUSSION

¶ 10. Mississippi Code Annotated section 71-5-513(A)(1)(b) (Supp.2013) provides that an employee is disqualified from receiving unemployment benefits if he or she is discharged for misconduct. Gibson argues that she was not guilty of misconduct. To deny unemployment benefits, the employer has the burden of showing “by substantial, clear, and convincing evidence” that the former employee’s actions amounted to disqualifying misconduct. City of Clarksdale v. Miss. Emp’t Sec. Comm’n, 699 So.2d 578, 580 (¶ 15) (Miss.1997) (quoting Foster v. Miss. Emp’t Sec. Comm’n, 632 So.2d 926, 927 (Miss.1994)).

¶ 11. The Mississippi Supreme Court has defined misconduct as:

[C]onduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer [fall] within the term.

Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982) (citation omitted). “[Wjhenever analyzing ‘misconduct,’ we not only assess violations of an employer’s stated policy, but we also consider all action (or inaction) which could be expected of the employee, and which affects the interests of the employer, regardless of whether such actions are included within the stated policy.” Miss. Emp’t Sec. Comm’n v. Percy, 641 So.2d 1172, 1175 (Miss.1994).

¶ 12. The supreme court has specifically held that an employee’s violation of an employer’s no-fault absenteeism policy constitutes misconduct that would disqualify that employee from receiving unemployment benefits. See generally Broome v. Miss. Emp’t Sec. Comm’n, 921 So.2d 334, 338 (¶ 16) (Miss.2006) (citation omitted); see also McNeil v. Miss. Emp’t Sec. Comm’n, 875 So.2d 221, 226 (¶ 16) (Miss.Ct.App.2004).

¶ 13. Here, there was substantial evidence of Gibson’s misconduct. Gibson was aware of Comcast’s attendance policy. She admitted that she received a copy of the handbook during her orientation. Gibson’s excessive tardies were properly documented, and she was given the warnings required under the policy. Gibson blames her tardiness on computer problems. Yet she failed to report the problems with the computer equipment to her supervisors initially. When the problem was reported, Comcast examined the computer equipment and found it to be operating properly. The violation of Comcast’s attendance policy constitutes misconduct. Therefore, we must affirm the judgment of the circuit court.

¶ 14. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED.

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