author: CHANDLER, Justice,

text:
    Elizabeth Regina DEES a/k/a Elizabeth Dees a/k/a Regina Dees v. STATE of Mississippi.
    No. 2012-KA-01128-SCT.
    Supreme Court of Mississippi.
    Nov. 21, 2013.

      Office of State Public Defender by Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before DICKINSON, P.J., KITCHENS and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. After a trial in the Circuit Court of Tippah County, Regina Dees was convicted of arson and insurance fraud. For arson, the court sentenced Dees to ten years in the custody of the Mississippi Department of Corrections, with two years to serve and eight years suspended, with three years on post-release supervision. For insurance fraud, the court sentenced Dees to two years to run concurrently with the arson sentence. Dees appeals, challenging the sufficiency of the evidence supporting both convictions. Because the evidence sufficiently supports the convictions, we affirm.

FACTS

¶ 2. In January 2008, Dees made a claim against her Farm Bureau homeowner’s insurance policy arising out of the burglary of her residence in Ripley, Mississippi. In connection with this claim, Dees submitted a list to Farm Bureau of the stolen items and was reimbursed $7,480.24 for her losses. On October 6, 2008, a fire at Dees’s residence destroyed the kitchen and caused extensive smoke and heat damage to the rest of the house. An investigation ensued, and Dees made another claim on her Farm Bureau policy. When Farm Bureau’s fire investigator visited the house, he noticed the presence of items which Dees had reported stolen in the burglary. Farm Bureau hired an electrical engineer who ruled out an electrical cause of the fire. Then, the State Fire Marshal’s office ruled that the cause of the fire was incendiary.

A. Arson conviction

1. Lay testimony

¶ 8. Stephen Freeman, a volunteer firefighter, testified that Ripley Fire and Rescue was notified of a fire at Dees’s residence at 4:36 a.m. on October 6, 2008. When firefighters arrived, the fire was growing and coming through the roof in the rear of the house. Freeman opined that the fire would have been at the fully involved stage when it was reported four minutes earlier. Nineteen volunteer firemen put out the fire at considerable risk to everyone involved. Freeman observed that Dees showed no signs of exposure to a major fire. He noticed that Dees, who was outside when they arrived, was wearing pajamas and had a lot of jewelry on; also, her carport and vehicle were packed with household items.

¶ 4. On October 7, 2008, Dees spoke to Farm Bureau’s claims adjuster, Delia Es-sary, about the fire, and two days later gave a voluntary statement to the fire marshal’s office. Dees said that she had been fixing up the house to sell. In the last few months, she had put down new floor tile, bought new kitchen appliances, and was painting. Dees said that her son had visited the day before the fire and they had celebrated his birthday. After he left, she applied oil-based primer to the wall behind the refrigerator and painted furniture. That night she fell asleep watching television in the living room. She was awakened when a wind chime fell from the ceiling and hit her on the head. She observed that “the room was unbearably hot[-]flames were all across the kitchen and ceiling and startling] to get smokey.” She ran out of the house, called 911, and tried to extinguish the fire with a garden hose.

¶ 5. Dees did not testify but told witnesses of her belief that the fire had been caused by an electrical problem. Dees said that lights had been flickering in the hall and that she thought that her new refrigerator might have started the fire. She told her expert witness on fire investigation that the light switch on the east kitchen wall had a problem. And she told Essary that she kept mineral spirits in the house because she had been painting.

¶ 6. The State presented the testimony of two deputy clerks with the Tippah County Circuit Clerk’s office. Crystal Graves testified that, a week before the fire, Dees visited the clerk’s office to see her ex-husband, the then-circuit clerk. Dees told Graves that she no longer liked her house and was in the process of moving. According to Graves, Dees said that the wires were not good, the appliances were old, and “[i]t will end up burning down before long.” When Graves asked why it was going to burn, Dees said that “the wires have never been good and it will catch a fire one of these days from it. The fridge has been making noise and it’s got problems too.” Graves was alarmed by the conversation and wrote it down. Rebekah Lewellen testified that, soon after the fire, Dees returned to the clerk’s office and said that the refrigerator had caused her house to burn down.

¶ 7. Dees’s son, Chris Dees, was a student at Northeast Community College in Booneville. Chris testified that, the day before the fire, he had visited Dees and she had asked him to take a number of items of sentimental value back with him to college. He testified that Dees’s house had been rearranged and photographs had been removed from the walls. The day after the fire, Dees told him that she thought the refrigerator had caused the fire.

¶ 8. Dees’s daughter, Alisha Basham, testified that her mother continually painted and remodeled the house. Basham testified that Dees had complained of a popping sound in the house.

¶ 9. The State presented evidence that Dees was undergoing financial hardship. She was unemployed, and her primary income was from disability benefits. She recently had taken out a second mortgage on her home. And three months before the fire, she had stopped receiving child support for Chris. In response, Dees put on evidence that, in October 2007, she had received her share of a settlement in the amount of $43,000.

2. Fire investigation testimony

¶ 10. Several fire investigators testified. Jonathan C. Owens, a deputy with the State Fire Marshal’s office, testified his initial investigation showed the cause of the fire was either electrical or incendiary. Owens determined that the point of origin of the fire was in the area of the kitchen table, which had been covered with clothes. There were seven breakers in the tripped position, including those to the kitchen and refrigerator. This indicated that an electrical problem in the kitchen had tripped the breakers. Owens testified that, because he is not an electrical engineer, he was unable to rule out an electrical cause. Because he was unable to determine the fire’s cause or rule out an electrical cause, Owens’s initial report stated that the fire’s cause was undetermined. But after he received the electrical evaluation of Farm Bureau’s electrical engineer, Dr. John K. Owens, that ruled out an electrical cause, Owens issued an amended report that ruled the fire incendiary in nature.

¶ 11. Dr. Owens testified that he had inspected the electrical system and appliances and had determined that the fire was not ignited electrically. Dr. Owens explained that, while an electrical fire can occur when a short heats a wire’s insulation from the inside out, there was no evidence that a short occurred. He found that the circuit-breaker panel showed no signs of internal heating, and that the fire itself had caused the breakers to trip. Dr. Owens found that the refrigerator cord and wires in the attic displayed arching and beading, which, in some circumstances, can indicate internal heating caused by an electrical problem. But he determined that the arching and beading on the refrigerator cord and attic wires had been caused by fire damage, not from internal heating. He explained that oxidization on the wires would have shown they had overheated internally, and no oxidization was present. He opined that the fire had attacked the insulated wire and burned it, causing arching and beading that produced enough current to trip the breakers. He testified that no light switches had been involved in igniting the fire.

¶ 12. Dennis Welch, a fire investigator for Farm Bureau, visited the scene on October 8, 2008. He found significant fire patterns under the kitchen table and determined that was the point of origin. He testified that no patterns showed that the fire had originated in the east wall of the kitchen. Welch testified that he smelled ignitable liquid in the kitchen. He collected samples of floor tile from the kitchen, including the table area, and sent them for testing. He also collected pieces of the kitchen light fixture, pieces of a cardboard box from the kitchen, and liquid from a melted bottle found in the kitchen in front of the washer and dryer. Dennis Akin, a fire debris analyst, tested these submissions for the presence of ignitable liquid. Akin determined that all the samples contained ignitable liquid. Some of the kitchen floor tiles contained a mineral-spirits-type distillate, probably paint thinner. Other floor tiles and the light fixture parts contained a heavy mineral-spirits-type product. Other floor tiles and the cardboard box pieces contained a deodorized-kerosene-type product, possibly lamp oil.

¶ 13. A.K. Rosenhan, the Fire Services Coordinator for Oktibbeha County, testified for Dees as an expert on fire origin and cause. Rosenhan testified that he is a mechanical engineer, not an electrical engineer. Approximately eleven months after the fire, he visited the scene and spoke with Dees. He saw nothing at the scene to indicate the cause of the fire was incendiary. Rosenhan testified that the mastic underlying floor tile can yield a false positive for the presence of flammable liquid. In response to Dr. Owens’s conclusion that the arching and beading on the wires showed that the fire had not been caused electrically, Rosenhan rejected this conclusion because the determination of whether arching and beading caused a fire or was caused by a fire is subjective.

¶ 14. Rosenhan testified that the fire pattern and fire damage were consistent with the fire having started in the east wall of the kitchen due to an electrical problem. He testified that the breaker that served the east wall was in the tripped position, which indicated an electrical problem in that area. But because electrical components had been removed since the fire, Rosenhan was unable to determine whether the electrical components in the east wall had caused it. Ro-senhan testified that Dees told him that there had been a problem with the light switch on the east kitchen wall, and that was consistent with what he found at the scene.

B. Insurance fraud conviction

¶ 15. On January 11, 2008, Chris returned home from college to discover that Dees’s home had been burglarized. The police discovered that the point of entry was the carport door window, which had been broken. Dees submitted a contents list of everything that was stolen to Farm Bureau. Stan Sims, who investigated the claim, testified that it was unusual that Dees had receipts for most of the stolen items. Nonetheless, Farm Bureau paid Dees $7,480.24 for her theft-loss claim and closed the file.

¶ 16. Welch testified that, when he investigated the fire scene, he noticed some items in the house that had been part of the theft-loss claim. These items later were matched to those on the contents list. They included a television, a stereo tuner, two keyboards, a CD player/radio, a DVD player, and a truck lift kit. Farm Bureau reopened the theft investigation. During the investigation, Sims discovered that Chris had several items in his college residence that matched those on the contents list, including a Game Boy, a Gameboy case, a Super Nintendo gaming system, compact discs, a DVD player, a Playstation 2 gaming system, video games, DVDs, a range router, a MP3 player, a laptop computer, a flash drive, a printer, and a wireless mouse. The police told Sims that they had not recovered any of the stolen items.

¶ 17. Chris testified that, on several occasions after the burglary, Dees came home with black garbage bags full of items she had reported as stolen. On these occasions, Dees said they had been recovered by the police or that she had found them in a pawn shop. Chris found this explanation suspicious. He became especially suspicious when Dees returned his Playstation, saying she found it at a pawn shop. The power cord was missing, and he told her the machine was useless without it. He asked Dees what pawn shop the Playstation had come from so that he could see if they had the power cord. But Dees immediately went outside and returned with the power cord.

LAW AND ANALYSIS

I. THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE ARSON CONVICTION.

¶ 18. Dees preserved her challenge to the sufficiency of the evidence with her request for a peremptory instruction on both charges, which was refused by the trial court. Shumpert v. State, 935 So.2d 962, 966 (Miss.2006). On review of the sufficiency of the evidence, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Bush v. State, 895 So.2d 836, 843 (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush, 895 So.2d at 843 (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Considering the evidence in the light most favorable to the verdict, we will affirm if, “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Bush, 895 So.2d at 843 (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). But if “the facts and inferences ... ‘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,’ ” then we must reverse and render. Id.

¶ 19. The case against Dees was circumstantial. Nonetheless, “direct evidence is unnecessary to support a conviction when the circumstantial evidence is sufficient to establish guilt beyond a reasonable doubt.” Hughes v. State, 90 So.3d 613, 630 (Miss.2012). “Circumstantial evidence need not exclude every possible doubt, but should exclude every other reasonable hypothesis consistent with innocence.” Id. In both direct and circumstantial cases, the jury is empowered to weigh, and resolve conflicts in, the evidence. Id.

¶ 20. Mississippi Code Section 97-17-1(1) provides that “[a]ny person who willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, whether occupied, unoccupied or vacant ... shall be guilty of arson in the first degree.... ” Miss.Code Ann. § 97-17-1(1) (Rev.2006). Dees contends the evidence was insufficient to show that she willfully and maliciously set the fire. Specifically, she contends that, because the kitchen had known electrical problems, wires in the kitchen showed arching and beading, the kitchen’s breakers were tripped, and the paint thinner was explained by her painting activities, there was a reasonable hypothesis consistent with innocence that the fire was electrical.

¶ 21. We disagree with Dees’s analysis of the evidence and find that the circumstantial evidence presented by the State was sufficient to sustain her conviction of arson. Testing of the floor tile and other items taken from the area of origin revealed the presence of flammable liquids. Owens testified that there were two possible causes of the fire, electrical or incendiary. While Owens lacked the expertise to rule out an electrical cause, Dr. Owens, an electrical engineer, examined the electrical wiring and appliances, and concluded that the fire was not caused electrically. Dr. Owens found that the circuit-breaker panel showed no evidence of internal heating. Dr. Owens testified that the arching and beading on the involved wires had occurred as a result of the fire, not from internal heating from an electrical problem. Although Dees’s expert, Rosenhan, contended that this finding was subjective and that the fire was caused electrically, Rosenhan lacked electrical-engineering expertise. Further, Rosenhan’s testimony that fire patterns showed the fire started on the east wall was contradicted by the testimony of Owens and Welch. Rosenhan admitted that he was unable to verify that electrical components on the east wall had caused the fire, because those components had been removed at the time of his inspection. And Rosenhan’s conclusion that the fire had an electrical cause relied in part on Dees’s unverified description of a problem with a light switch on the east wall. Given the fact that Dr. Owens possessed expertise that Rosenhan lacked, reasonable jurors could have rejected Ro-senhan’s testimony in favor of the testimony of Dr. Owens, Owens, and Welch, and found beyond a reasonable doubt that the fire did not have an electrical cause and was incendiáry.

¶ 22. Further evidence supported a conclusion beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence that Dees had set the fire. The day before the fire, Dees removed items of sentimental value and gave them to Chris. And when firefighters arrived, Dees had a lot of jewelry on and her vehicle and carport were filled with items. From these facts, a rational jury could have inferred that Dees had tried to preserve her belongings before she set the fire. And a rational jury could have concluded from Dees’s financial situation and the strong evidence supporting her prior commission of insurance fraud that Dees had the motive to burn down her house and recover the insurance proceeds.

¶ 28. A rational jury could have concluded that Dees’s statements before and after the fire that the lights had been flickering and that problems existed with a light switch and the refrigerator were self-serving attempts to establish an electrical cause for the fire. Bolstering this conclusion is the fact that, one week before the fire, Dees predicted that her home was going to burn due to an electrical problem. Considering the evidence and all favorable inferences in the light most favorable to the verdict, a reasonable jury could have found beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence that Dees willfully and maliciously set fire to her house.

II. THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE INSURANCE-FRAUD CONVICTION.

¶ 24. Dees was convicted of insurance fraud under Mississippi Code Section 7-5-303(2)(a), which provides that “[a] person or entity shall not, with the intent to appropriate to himself or to another any benefit, knowingly execute, collude or conspire to execute or attempt to execute a scheme or artifice ... [t]o defraud any insurance plan in connection with the delivery of, or payment for, insurance benefits, items, services or claims.... ” Miss. Code Ann. § 7-5-303(2)(a) (Rev.2002). Dees challenges the sufficiency of the evidence on the basis that her Farm Bureau homeowner’s insurance plan did not meet the statutory definition of “insurance plan.” Mississippi Code Section 7-5-303(l)(a) provides the definition of insurance plan and states:

“An insurance plan” means a plan or program that provides health benefits whether directly through insurance or otherwise and includes a policy of life or property and casualty insurance, a contract of a service benefit organization, workers’ compensation insurance or any program or plan implemented in accordance with state law or a membership agreement with a health maintenance organization or other prepaid program.

Miss.Code Ann. § 7-5-303(l)(a) (Rev. 2002).

¶ 25. Dees argues that, under Section 7 — 5—303(l)(a), the defrauded insurance plan must be one that provides health benefits. The State argues that Section 7-5 — 303(l)(a) contains no such limitation, because it refers to life or property and casualty insurance. It is true that Section 7-5-303(l)(a) refers to life and property and casualty insurance. It provides that a plan or program that provides health benefits and includes a policy of life or property and casualty insurance is “an insurance plan” under the statute. Miss.Code Ann. 7 — 5—303(l)(a). In an unpublished opinion, the United States District Court for the Southern District of Mississippi found that only insurance plans which provide health benefits are included in the definition of “insurance plan.” Brown v. State Farm Fire & Cas. Co., 2007 WL 1657417 at *6 (S.D.Miss.2007). The district court stated:

Life, property and casualty policies are mentioned in the definition of “insurance plan,” but these are included within the statutory definition only insofar as they provide health benefits. If the legislature had intended for this statute to encompass all forms of insurance, it would have expressed that intent by defining an “insurance plan” as any plan or policy of insurance without the qualifying and limiting verbiage. Plaintiffs’ effort to bring their homeowners’ policy within the statutory definition of “insurance plan” fails because a homeowners’ policy provides no health benefits. For this reason alone, the court rejects plaintiffs’ argument that they belong to the class this statute was designed to protect.

Id.

¶ 26. This case does not require this Court to decide whether policies of insurance that do not offer health benefits are included within the definition of “insurance plan” under Section 7-5-303(l)(a). This is because the evidence before the jury showed that Dees’s homeowner’s policy provided for $1,000 in medical benefits. Because the defrauded insurance plan in this case included health benefits, it came within the definition of “insurance plan” under Section 7-5-303(l)(a). And Dees did not have to defraud her insurance plan of medical benefits in order to violate Section 7-5-303(2)(a). That statute is violated by defrauding “any insurance plan in connection with the delivery of, or payment for, insurance benefits, items, services or claims,” and is not limited to defrauding an insurance plan of medical benefits. The evidence that Dees defrauded an insurance plan was sufficient to sustain her conviction of insurance fraud under Section 7-5-303(2)(a).

¶ 27. We note that Dees, for the first time in her reply brief, argues that the definition of “insurance plan” in Section 7-5-303(l)(a) is unconstitutionally vague. The State has filed a motion to strike the argument because it was raised for the first time in the reply brief, depriving the State of an opportunity to respond. This Court has held that it does not consider new issues raised for the first time in an appellant’s reply brief. Bishop v. State, 882 So.2d 135, 155 (Miss.2004). Therefore, we grant the State’s motion to strike.

CONCLUSION

¶28. Because the evidence was sufficient to sustain Dees’s convictions of arson and insurance fraud, we affirm.

¶ 29. COUNT I: CONVICTION OF FIRST DEGREE ARSON AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH EIGHT (8) YEARS SUSPENDED, AND THREE (3) YEARS ON POST-RELEASE SUPERVISION, AFFIRMED. COUNT II: CONVICTION OF INSURANCE FRAUD AND SENTENCE OF TWO (2) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THE SENTENCE IMPOSED IN COUNT II SHALL RUN CONCURRENTLY WITH THE SENTENCE IMPOSED IN COUNT I. APPELLANT SHALL PAY COURT COSTS, RESTITUTION AND BOND FEE TOTALING $7,706.24, WITH CONDITIONS.

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

      . Dr. John K. Owens and Jonathan C. Owens are not related.

      . Dees did not file a motion for judgment notwithstanding the verdict.


source: Caselaw Access Project

author: RANDOLPH, Presiding Justice,

license: Public Domain

text:
    MITCHELL CRANE SERVICES, INC. v. Patricia PAGE, Jeremy Page, Justin Page, Tiffany Page, Sharrod Page, Jermaine Page, Christopher R. Aronhalt, Corrine Page, Melvin Page, Brandi Henricks, Krystle Miller and David Williams.
    No. 2012-CA-00353-SCT.
    Supreme Court of Mississippi.
    Nov. 21, 2013.

      Kaara Lena Lind, William E. Whitfield, III, James E. Welch, Jr., Biloxi, attorneys for appellant.
    Genevieve Gebheim McLeod, Mark Thomas McLeod, Mitchell Harry Tyner, Sr., Jackson, Dale Edward Williams, attorneys for appellees.
    Before RANDOLPH, P.J., KING and COLEMAN, JJ.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Two vehicles struck multi-ton counterweights owned by Mitchell Crane Services, Inc., which were on the traveled portion of Interstate 59 in Pearl River County. The accident occurred on July 25, 1999, at night. The occupants of the two vehicles sued Mitchell Crane. During the liability phase of a bifurcated trial, the jury found that a thief was seventy-five percent responsible, and Mitchell Crane was twenty-five percent responsible for any damages. The trial court denied Mitchell Crane’s motion for judgment notwithstanding the verdict (JNOV). At the conclusion of the damages trial, the jury returned a verdict in favor of Patricia Page and the other plaintiffs (Page), in the amount of $2,357,406.80. The judgment was reduced by the trial court to $1,178,703.40 pursuant to Mississippi Code Section. § 85-5-7(2). Mitchell Crane renewed its motion for JNOV, which was denied. Mitchell Crane appealed, and Page cross-appealed. We reverse the judgment of the trial court.

FACTS

¶ 2. Mitchell Crane was in the business of selling and renting cranes. On Friday afternoon, July 23, 1999, a Mitchell Crane employee picked up a “pull truck” from a repair shop. The truck previously had been loaded with crane counterweights. He drove the truck back to the Mitchell Crane lot, located in Meridian, Mississippi, where he parked it, took the keys out, locked the door, and placed the keys in the key box inside an office. The truck and counterweights were to be used at a job requiring an eighty-ton crane at Slay Steel in Meridian on Monday morning. The counterweights were left on the truck over the weekend.

¶ 3. At approximately 10:00 p.m. on Sunday night, July 25, 1999, the plaintiffs, in two separate vehicles, struck objects in the road, later identified as counterweights, which were strewn across 1-59 South. One vehicle was driven by Melvin Page, and was occupied by Patricia Page, Corrine Page, Tiffany Page, Sharrod Page, Justin Page, Jeremy Page, Jermaine Page, and David Williams, a family friend. The other vehicle was driven by Christopher Aronhalt and passengers Krystle Miller, Brandi Henricks, and Paul Lee. Despite extensive damage to both of the vehicles, all of the occupants survived, albeit not without serious injuries. One of the investigating officers, along with Melvin, traveled to a nearby truck stop at Slidell, Louisiana, but could not find the truck that had carried the counterweights.

¶ 4. On Monday morning, July 26, 1999, a Mitchell Crane employee who had arrived for work at the Meridian lot reported to Walt Marcello, the president of Mitchell Crane, that the truck and counterweights were missing. After contacting other employees to see if they knew the location of the truck, Marcello filed a stolen-vehicle report with the police. Later in the week, Marcello was informed that the counterweights had been found and had been involved in an accident.

¶ 5. The truck, without the counterweights, was found abandoned in a hotel parking lot, located off Interstate 10, in Ocean Springs on September 1, 1999. The interior of the truck was trashed, and the straps on the back deck were broken. Exterior damage revealed a broken hood strap, paint chipped underneath the driver door, and a cut wire hanging from the engine. On September, 13, 1999, Page filed a lawsuit against Mitchell Crane, alleging that Mitchell Crane employees were operating the truck at the time of the collisions. Alternatively, Page pleaded that if the truck was stolen, Mitchell Crane had a duty to prevent unauthorized persons from stealing the vehicle. Upon the request of Mitchell Crane, the trial was bifurcated.

¶ 6. Trial testimony of Mitchell Crane employees established that any time an eighty-ton crane was moved, Mitchell Crane had to request a permit from the Mississippi Department of Transportation. Although a permit is not necessary to transport counterweights, the counterweights were moved only with the cranes. Mitchell Crane employees further testified that it was illegal to transport cranes on Sunday. Although Mitchell Crane had performed jobs in Louisiana on a few occasions previously, no work was scheduled to be performed in Louisiana the weekend or week of the accident.

¶ 7. Officer Ronnie Turan testified that “it is fairly common and routine that equipment like [the' pulltruck] is stolen in the state of Mississippi.” Due to the “substantial foreign market for these kinds of vehicles,” Officer Turan testified that “sophisticated” thieves were able to get these kinds of vehicles off a lot “in a matter of minutes.”

¶ 8. Page’s expert Ronald Bredemeyer opined that a thief would need sophisticated equipment like pre-made jumper wires; and, even if a thief did hot-wire the truck, it would have been able to travel at only thirty to forty miles per hour due to the electrical system. However, on cross-examination, he admitted that a sophisticated thief could hot-wire the truck, and, further, that he had he never inspected the truck. Based on pictures, Bredemeyer also testified that Mitchell Crane was not strapping down the counterweights with large enough straps, thus violating federal regulations. However, Bredemeyer further admitted on cross-examination that the federal regulations apply only when the vehicle is traveling on the road, not when it is parked on a lot. Thus, if the thief was driving the truck, the thief, not Mitchell Crane, would have been in violation of failing to properly secure the counterweights.

¶ 9. At the conclusion of Page’s case-in-chief, Mitchell Crane moved for a directed verdict stating that the evidence showed that the truck was stolen; thus, Page had failed to prove that a Mitchell Crane employee had operated the truck just before the collisions and could not satisfy the proximate-cause element of their claim. The trial court overruled Mitchell Crane’s motion for directed verdict. After Mitchell Crane concluded its defense, the parties rested. The jury returned a verdict in favor of Page, apportioning seventy-five percent of fault to the thief and twenty-five percent of fault to Mitchell Crane. Thereafter, the trial court denied Mitchell Crane’s motion for JNOV, and the damages phase was tried five years later.

¶ 10. After the trial court entered final judgment, it again denied Mitchell Crane’s renewed motion for JNOV. Mitchell Crane then filed a notice of appeal, and Page filed a cross-appeal.

ANALYSIS

¶ 11. Although the parties assign a multitude of errors, this Court addresses only one, for it is dispositive. That issue is whether the trial court erred in denying Mitchell Crane’s motion for JNOV. We review the denial of judgments notwithstanding the verdict as follows:

[T]his Court will consider the evidence in the light most favorable to the appel-lee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standards of review, however, are predicated on the fact that the trial judge applied the correct law.

Reese v. Summers, 792 So.2d 992, 996 (Miss.2001) (quoting Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997)).

¶ 12. The jury returned the following verdict form: “[w]e, the jury, find in favor of the plaintiffs, and apportion fault as follows: 1. Mitchell Cranes Services, Inc. = 25% 2. Thief = 75%.” Mitchell Crane moved for JNOV. Mitchell Crane argued that the thief was an intervening, superseding cause, absolving it of liability. Mitchell Crane renewed its JNOV motion after the damages phase.

¶ 13. This Court has held that a person is not liable where the original negligence “only furnished the condition or occasion from which the injuries were received, but it did not put in motion the negligence and wrongful agency that caused the injury” Hoke v. W.L. Holcomb & Assocs., Inc., 186 So.2d 474, 476-77 (Miss.1966). Addressing this very issue, this Court in Pennenter, noting the great weight of authority across the nation, stated:

if an independent intervening agency was the proximate cause of the injury inflicted, the plaintiff can not recover upon the original act of negligence, we are of the opinion that even though the appellee in this case may have been guilty of negligence in violating the statute prohibiting the leaving of a car unattended with the key in the switch, nevertheless the act of the thief in running a red light at a reckless rate of speed was an intervening agency which caused the accident complained of and superseded the original act of negligence of the ap-pellee.

Permenter v. Milner Chevrolet Co., 229 Miss. 385, 91 So.2d 243, 252 (Miss.1956).

¶ 14. Other cases make it clear that the act of a thief is an intervening and superseding cause. Southern Heritage Ins. Co. v. C.E. Frazier Constr. Co., Inc., 809 So.2d 668, 672 (Miss.2002); Harrington v. L & B Wood, Inc., 883 So.2d 591, 594 (Miss.Ct.App.2004). In Southern Heritage, we followed Permenter and held that “[w]here a thief acts unlawfully and steals the vehicle, the thief s negligent and unlawful driving of the vehicle after the theft constitutes an intervening act which supersedes the liability of the negligent owner of the vehicle.” Southern Heritage, 809 So.2d 668, 672 (Miss.2002).

¶ 15. Page offered a modicum of possibilities of why a Mitchell Crane employee could have been operating the truck just before the collisions. However, the trial judge allowed the case to go to the jury and denied Mitchell Crane’s motion for directed verdict. The jury, after considering the evidence, found that the truck had been stolen, assessing the thief with seventy-five percent fault. Given a jury finding that a thief stole the truck, the trial court erred by not applying our controlling law and granting Mitchell Crane’s original motion for JNOV. Since the trial court erred by not granting Mitchell Crane’s motion for JNOV on liability, discussions of the other issues raised would serve no purpose. We reverse the judgment of the Pearl County Circuit Court and render judgment for Mitchell Crane Services.

¶ 16. ON DIRECT APPEAL: REVERSED AND RENDERED. ON CROSS-APPEAL: REVERSED AND RENDERED.

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

      . The counterweights varied in weight from approximately one to three-and-a-half tons.


author: KITCHENS, Justice,

text:
    Connie Lynn DAVIS, Individually, and as Maternal Grandmother and Next Friend of Danielle Lynn Vaughn v. William Daniel VAUGHN.
    No. 2012-CA-00651-SCT.
    Supreme Court of Mississippi.
    Nov. 21, 2013.

      Rankin County Chancery Court, Dan H. Fairly, J.
    Sharon Patterson Thibodeaux, attorney for appellant.
    William P. Featherston, Jr., attorney for appellee.
    Before RANDOLPH, P.J., LAMAR and KITCHENS, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. In this custody dispute between the natural father and the maternal grandmother, the chancellor granted custody to the father, finding that the father had not deserted his child. Although the grandmother had stood in loco parentis to the child since the mother’s death, the chancellor correctly recognized that this alone could not overcome the natural-parent presumption. See Smith v. Smith, 97 So.3d 43 (Miss.2012) (reemphasizing that a third party’s in loco parentis status, standing alone, could not rebut the natural-parent presumption). Finding no error, we affirm the judgment of the chancery court.

I.

¶ 2. This appeal is before the Court following our reversal of the initial joint custody award and our remand of the case for additional proceedings. Vaughn v. Davis (Vaughn II), 36 So.3d 1261 (Miss.2010). In October 2000, Davis’s daughter, Theresa Davis, gave birth to Danielle, who is the child at the center of this custody dispute. The appellee, William Daniel Vaughn, is Danielle’s natural father. Theresa and Vaughn never married each other, and Danielle lived with her mother and grandmother from birth.

¶ 3. When Danielle was seventeen months old, her mother, Theresa, died in a car wreck. At the time of Theresa’s death, Vaughn was attending school, working full time, and living in an apartment with two roommates. Given his circumstances, Vaughn and Davis agreed that Danielle would continue to live with Davis until Vaughn finished school and became financially stable. Danielle lived with her maternal grandmother for two years under this informal arrangement. During that time, her father’s interaction with her was sporadic, and he contributed little financial assistance.

¶ 4. In August, 2004, Davis filed a petition for custody and emergency temporary relief with the Rankin County Chancery Court. Two days after the petition was filed, Vaughn agreed to an order giving Davis temporary custody, with Vaughn’s receiving biweekly visitation rights, pending a final hearing.

¶ 5. Danielle remained in her grandmother’s care for the next three years and was seven years of age when the chancellor entered his final order granting Davis physical custody of Danielle, with Davis and Vaughn sharing joint legal custody. The chancellor found that Davis had stood in loco parentis since the death of Danielle’s mother, and that Vaughn had forfeited his right to rely on the natural-parent presumption when he voluntarily relinquished physical custody of Danielle in the 2004 agreed order. The chancellor then considered the Albright factors and determined that it was in the best interests of the child to remain with her grandmother. Albright v. Albright, 437 So.2d 1003 (Miss.1983).

¶ 6. Vaughn appealed the final judgment, and the case was assigned to the Court of Appeals. Relying on this Court’s decision in Grant v. Martin, 757 So.2d 264, 265 (Miss.2000), the Court of Appeals affirmed the chancellor’s award of physical custody to the grandmother. Vaughn v. Davis (Vaughn I), 37 So.3d 68 (Miss.Ct.App.2009). In Grant, 757 So.2d at 266, this Court declared that “a natural parent who voluntarily relinquishes custody of a minor child, through a court of competent jurisdiction, has forfeited the right to rely on the existing natural parent presumption.” The decision further held that, upon such forfeiture, the natural parent must demonstrate “by clear and convincing evidence that the change in custody is in the best interest of the child.” Id. Applying Grant, the Court of Appeals found that the chancellor was correct in ruling that Vaughn was not entitled to the natural-parent presumption, given Vaughn’s having voluntarily relinquished custody of his child. Vaughn I, 37 So.3d 68.

¶ 7. This Court granted Vaughn’s petition for writ of certiorari and reversed, holding that Vaughn’s agreement to the temporary custody order did not constitute relinquishment of his parental rights. Vaughn II, 36 So.3d at 1267. The opinion found Gmnt inapplicable, noting that, unlike the mother in that case, Vaughn never had physical custody of his daughter and that he merely had allowed the grandmother temporarily to retain custody pending a final judgment. Vaughn II, 36 So.3d at 1266. However, the Court noted that “the chancellor could have treated Vaughn’s inaction prior to the agreed order as desertion of Danielle ... even though his actions/inactions d[id] not compare to the behavior our courts have found to constitute abandonment or constructive abandonment”. Id. at 1265 (citations omitted). Accordingly, this Court remanded the case with the following instructions:

Specifically, the court is to determine if Vaughn relinquished the natural-parent presumption for reasons other than forfeiture by agreeing to a temporary custody order. Three years have elapsed since the last hearing. Thus, the chancellor should consider Danielle’s circumstances at the time of the remand hearing, if he determines that desertion has been proven. As always in custody matters, the best interests of the child should guide the analysis as a polestar. As the chancellor’s judgments on joint legal custody, visitation, et cetera, were not part of this appeal, the chancellor retains his discretion in crafting the best arrangements, considering present circumstances.

Id. at 1267.

¶ 8. On remand, the chancellor initially ruled that Davis’s standing in loco paren-tis was sufficient to rebut the natural-parent presumption and, after addressing all of the Albright factors, again awarded custody to the grandmother. At the custody hearing, the chancellor emphasized his belief that Danielle would be better off living with her grandmother rather than with her father. Shortly thereafter, this Court issued its opinion in Smith v. Smith, 97 So.3d 43 (Miss.2012), reemphasizing that a third party’s in loco parentis status, standing alone, cannot rebut the natural-parent presumption. The father filed a motion to reconsider; and, in light of Smith, the chancellor found that, because Vaughn had not deserted or abandoned Danielle, and because Vaughn was not immoral or otherwise unfit as a parent, the natural-parent presumption had not been rebutted. The chancellor granted Vaughn’s motion to reconsider, reversed his earlier ruling, and awarded custody to Vaughn, subject to Davis’s visitation rights.

¶ 9. Aggrieved, the grandmother filed this appeal. The oft-cited standard of appellate review in custody matters is quite narrow: the judgment will not be reversed unless the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. See, e.g., Johnson v. Gray, 859 So.2d 1006, 1012 (Miss.2003) (citing Mabus v. Mabus, 847 So.2d 815, 818 (Miss.2003)). Here, the grandmother challenges the chancellor’s finding that Vaughn had not deserted his child and asks this Court to reconsider our jurisprudence that one standing in loco parentis is not on equal footing with the natural par-entis).

II.

¶ 10. We first address Davis’s assertion that parties standing in loco par-entis should be able to seek custody of the child without having to prove that the natural parent has relinquished his or her parental rights. The law recognizes that parents are the natural guardians of their children, and “it is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party.” In re Dissolution of Marriage of Leverock and Hamby, 23 So.3d 424, 429 (Miss.2009) (citing K.D.F. v. J.L.H., 933 So.2d 971, 980 (Miss.2006)). See also Miss. Code Ann. § 93-13-1 (Rev.2013) (“The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education.... If either father or mother die or be incapable of acting, the guardianship devolves upon the surviving parent.”). However, the presumption in favor of the parent may be rebutted by clear and convincing evidence that “(1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.” Smith, 97 So.3d at 46 (citing Vaughn II, 36 So.3d at 1264-65 (Miss.2010); Leverock, 23 So.3d at 429-30; Carter v. Taylor, 611 So.2d 874, 876 (Miss.1992)). If the natural-parent presumption is successfully rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the child’s best interests. Id. (citing In re Custody of M.A.G., 859 So.2d 1001, 1004 (Miss.2003); Logan v. Logan, 730 So.2d 1124, 1127 (Miss.1998)).

¶ 11. A person in loco parentis is one who stands in place of a parent, having assumed the status and obligations of a parent. Farve v. Medders, 241 Miss. 75, 81, 128 So.2d 877, 879 (Miss.1961). “Any person who takes a child of another into his home and treats it as a member of his family, providing parental supervision, support and education, as if it were his own child, is said to stand in loco parentis.” W.R. Fairchild Constr. Co. v. Owens, 224 So.2d 571, 575 (Miss.1969) (citing Farve, 128 So.2d 877). In loco parentis status carries with it the same duties and liabilities that belong to a natural parent, including a right to custody of the child “as against third persons.” Farve, 128 So.2d at 879 (emphasis added) (citations omitted).

¶ 12. Although this doctrine grants third parties certain parental rights, such rights are inferior to those of a natural parent. Thus, in a custody dispute between one standing in loco paren-tis and a natural parent, the parent is entitled to custody unless the natural-parent presumption is rebutted. Smith, 97 So.3d at 46-47. The court may not consider granting custody to a third party, including one standing in loco parentis, unless and until the third party rebuts this presumption. In other words, “[t]he doctrine of in loco parentis does not, by itself, overcome the natural-parent presumption,” although it may be a factor in determining whether the presumption has been rebutted. Id. at 46-47.

¶ 13. Giving preference to natural parents, even against those who have stood in their place, honors and protects the fundamental right of natural parents to rear their children. Vance v. Lincoln County Dep't of Pub. Welfare, 582 So.2d 414, 417 (Miss.1991) (citing Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S.Ct. 438, 88 L.Ed. 645 (1944)). This concept is hardly new:

Nature gives to parents that right to the custody of their children which the law merely recognizes and enforces. It is scarcely less sacred than the-right to life and liberty, and can never be denied save by showing the bad character of the parent, or some exceptional circumstances which render its enforcement inimical to the best interests of the child.

Moore v. Christian, 56 Miss. 408 (1879). See also Prince, 321 U.S. at 166, 64 S.Ct. 438 (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”) (citing Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, (1925)). Furthermore,

[A]s a consequence of this, it is presumed to be for the real interest of the child that it should be in the custody of its [natural parent], as against collateral relatives, and he, therefore, who seeks to withhold the custody against the natural and legal presumption, has the burden of showing clearly that the [parent] is an unsuitable person to have the custody of his [or her] child; or that, however moral a [person] may be, he [or she] had abandoned his child, contributing nothing to its support, taking no interest in it, and permitting it to remain continuously in the custody of others, substituting such others in his own place so that they stand in loco parentis to the child, and continuing this condition of affairs for so long a time that the affections of the child and of the foster parents have become mutually engaged to the extent that a severance of this relationship would surely result in destroying the best interest of the child.

Hibbette v. Baines, 78 Miss. 695, 29 So. 80 (1900). In other words, by allowing one’s child to remain in another’s custody, without providing any support to or pursuing a relationship with the child, a natural parent may, over time, relinquish his or her parental rights in favor of a de facto parent. More than a century later, the Court continues to recognize these legal maxims, declaring in Smith that “grandparents who stand in loco parentis have no right to the custody of a grandchild, as against a natural parent, unless the natural-parent presumption first is overcome by a showing of abandonment, desertion, detrimental immorality, or unfitness on the part of the natural parent.” Smith, 97 So.3d at 47-48 (Ethredge v. Yawn, 605 So.2d 761, 764, 766 (Miss.1992)).

¶ 14. Davis has cited no authority to support our overruling this line of precedent. Instead, she relies on the facts in her case, arguing that, without a change in the law, there is no “real legal benefit” to the doctrine of in loco parentis. But, this Court clearly has recognized that the doctrine protects those standing in the shoes of the natural parents from outside intrusions, and these rights are constitutionally guarded. For example, in Britt v. Allred, 199 Miss. 786, 25 So.2d 711 (1946), this Court held that parties who had taken in and cared for an orphaned child stood in loco parentis to the infant and could not be deprived of their “parental rights” without notice and an opportunity to be heard. Id. at 789-90 (emphasis added) (citations omitted). That decision noted that this holding was founded upon the “universal rule governing due process of law,” as recognized in our state and federal constitutions. Id. See U.S. Const, amend. XIV; Miss. Const. art. 3, § 14.

¶ 15. Judges often are faced with the difficult task of removing a child from a loving home in deference to a natural parent’s custodial rights. Even so, the law does not allow parental rights to supercede the best interests of the child. Parental rights, as is true of other fundamental rights, can be forfeited or taken away, and our law does recognize some means by which third parties can overcome the law’s preference of natural parents. See Smith, 97 So.3d at 46 (listing the ways in which the natural-parent presumption may be rebutted). Consistent with longstanding legal authority, requiring Davis first to demonstrate that Vaughn had relinquished his right to parent his child, was not an undue burden. The law protects the best interests of the child by its recognition that a natural parent’s “liberty interest ... in the care, custody, and management of their children and families,” is not an absolute right. G.Q.A. v. Harrison County Dep’t of Human Res., 771 So.2d 331, 335 (Miss.2000) (citing Santosky v. Kramer, 455 U.S. 745, 753-54, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)).

III.

¶ 16. In the absence of any legally compelling argument or authority that persuades this Court to change its well-established practice and alter the natural-parent presumption, we examine Davis’s argument that the presumption was clearly rebutted. During the proceedings prior to the first appeal, the chancellor specifically found that Vaughn had neither abandoned his child nor was he unfit to have custody. Thus, as instructed by this Court, the chancellor considered whether Vaughn had otherwise deserted Danielle and found that he had not.

¶ 17. Desertion is defined as “foresak-ing one’s duty as well as a breaking away from or breaking off associations with some matter involving a legal or moral obligation or some object of loyalty.” Petit v. Holifield, 443 So.2d 874, 878 (Miss.1984) (citing Ainsworth v. Natural Father, 414 So.2d 417 (Miss.1982)). This Court has explained, “abandonment has to do with the relinquishment of a right or claim, whereas desertion involves an avoidance of a duty or obligation.” Id.

¶ 18. Davis argues that the chancellor’s determination was erroneous, claiming that Vaughn had deserted Danielle prior to the August 2004 agreed order granting her temporary custody. On remand, the trial court expressed some uncertainty regarding the distinction between abandonment and desertion and whether he was required to consider the desertion issue in light of the facts as they existed when Davis filed her petition. Nevertheless, the chancellor heard testimony and arguments related to Vaughn’s relationship with Danielle from the time she was born until the time of the 2012 hearing. Reviewing the record and transcript from the first hearings, and relying on his own recollection, the chancellor found that Vaughn had not deserted Danielle when Davis filed her petition for custody. He also noted several positive developments that were favorable to Vaughn and demonstrated that he had greatly matured over time. For example, the chancellor observed that Vaughn was employed, was married with an additional child and that he wanted to see Danielle develop a relationship with her sibling. He also said that Vaughn had “made a wise decision in marrying” his wife, Melissa, and that he, the chancellor, was favorably impressed by her. Finally, the chancellor considered other cases, specifically Leverock, 23 So.3d 424, and found that this case did not rise to that level. At the conclusion of the extensive hearings, the trial judge declared that he could not “in good conscience find facts that would show by clear and convincing evidence that he [Vaughn] deserted this child.”

¶ 19. Davis bears the burden of demonstrating clear error, and based on the foregoing, we cannot find that she has met this burden.

Conclusion

¶20. As for Davis’s arguments calling for a change in the law, we find no legally compelling reason to alter or abandon our established standards for rebuttal of the natural-parent presumption. The question of whether Vaughn deserted Danielle was a factual question best left to the trial judge, and the evidence supports his ruling that Vaughn did not desert Danielle. Because the chancellor applied the correct legal standard and because his findings of fact were neither manifestly wrong nor clearly erroneous, we affirm the judgment of the Rankin County Chancery Court. Mabus, 847 So.2d at 818.

¶ 21. AFFIRMED.

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


author: RANDOLPH, Presiding Justice, KING, Justice,

text:
    Lee Darrel NIX a/k/a Lee Darryl Nix a/k/a Lee D. Nix a/k/a Lee Darrel Nix a/k/a Lee Nix a/k/a Lee Darrell Nix v. STATE of Mississippi.
    No. 2011-CT-00372-SCT.
    Supreme Court of Mississippi.
    Nov. 21, 2013.

      Lee Darrel Nix, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   ON WRIT OF CERTIORARI

RANDOLPH, Presiding Justice,

for the Court:

¶ 1. On writ of certiorari, Lee Darrell Nix appeals a Court of Appeals judgment affirming the Circuit Court of Harrison County’s denial of his motion for post-conviction relief (PCR). Nix v. State (“Nix II”), 126 So.3d 46, 2012 WL 4875013, *1 (Miss.Ct.App. Oct.16, 2012). Nix was convicted of touching a child for lustful purposes and kidnapping. His conviction was unanimously affirmed by this Court on direct appeal. Nix v. State (“Nix I”), 8 So.3d 141 (Miss.2009). On PCR, Nix argues that the State failed to prove beyond a reasonable doubt an essential element of touching a child for lustful purposes — the victim’s age at the time of the offense. As with all post-conviction petitions, Nix bore the burden to show that he was entitled to relief. He failed to do so. As such, the trial court did not err in denying his petition. Finding no error, we affirm the judgment of the Court of Appeals and the Circuit Court of Harrison County denying post-conviction relief.

FACTS

¶ 2. For an account of the crime, review this Court’s opinion on direct appeal. See Nix I, 8 So.3d at 142-43. The pertinent procedural history of the case will be discussed infra.

ANALYSIS

¶ 3. “On post-conviction relief, we will not disturb the trial court’s findings unless they are found to be clearly erroneous.” Jackson v. State, 965 So.2d 686, 688 (Miss.2007) (citing Brown v. State, 731 So.2d 595, 598 (Miss.1999)). However, questions of law are reviewed de novo. Id.

¶ 4. Nix was indicted by a grand jury for touching a child for lustful purposes and kidnapping. As to the charge of touching a child for lustful purposes, the grand jury was required to find that probable cause existed, inter alia, that the “child ... was at the time in question under the age of sixteen (16) years.” Through its indictment, the grand jury found that sufficient facts existed to establish probable cause that the child was under sixteen.

¶ 5. At trial, the police officer who responded to the crime testified that, “[w]hen I first arrived, I spoke to [the victim], ... a 14 or 15-year-old ... female ....” The officer’s testimony did not conflict with that of the victim — who testified that she was seventeen at the time of trial (more than fifteen months after the crime). The officer testified without objection, and his testimony regarding her age was not challenged or refuted.

¶ 6. Following the close of the State’s case-in-chief, Nix moved for a directed verdict. He argued that “the State ha[d] failed to prove beyond a reasonable doubt each and every material element of the charges against [him].” The victim’s age is an essential element of the crime of touching of a child for lustful purposes, yet Nix did not argue that the victim was sixteen or older. The trial court denied Nix’s motion.

¶ 7. The defense offered two witnesses, including Nix, and then rested, without contesting the age of the victim. In closing argument, defense counsel referred to the victim as a “fifteen-year-old girl[ ].”

¶ 8. The case proceeded to the jury. The jury was properly instructed that it must find guilt as to each element of the offense “beyond a reasonable doubt[,]” including that the “child ... was at the time in question under the age of sixteen (16) years.” Based on the evidence presented and the trial court’s instruction that it must find that the victim was under the age of sixteen beyond a reasonable doubt, the jury convicted Nix of touching a child for lustful purposes. See Johnson v. State, 475 So.2d 1136, 1142 (Miss.1985) (citing Payne v, State, 462 So.2d 902, 904 (Miss.1984)) (“It is presumed that jurors follow the instructions of the court. To presume otherwise would be to render the jury system inoperable.”)

¶ 9. Subsequently, Nix filed his post-trial motion for judgment notwithstanding the verdict (JNOV). He again argued that the “evidence ... supporting the charge of Touching a Child for Lustful Purposes fell short of the standard of beyond a reasonable doubt on all elements of the crime.” The trial court denied that motion.

¶ 10. Following the denial of his post-trial motion, Nix appealed his convictions to this Court. Nix argued “that the evidence presented could not support a finding that the prosecution had proven the elements of the offense charged beyond a reasonable doubt[,]” again without contesting the age of the victim. Nix I, 8 So.3d at 146 (emphasis added). This Court unanimously rejected that argument and affirmed Nix’s convictions. Id.

¶ 11. Now we turn to Nix’s appeal of the denial of post-conviction relief. Nix filed his “Application for Leave to File Motion for Post Conviction Collateral Relief,]” again arguing that the evidence presented by the State was insufficient to prove the elements of the offense of touching a child for lustful purposes — and for the first time arguing that the proof was insufficient as to the age of the victim. Out of an abundance of caution and to ensure that Nix’s conviction did not result in an unconscionable injustice, a panel of this Court granted Nix a hearing in the trial court to establish that the State had failed to present sufficient evidence at trial that the victim was less than sixteen. Nix filed his PCR in the trial court, and the State responded, contending that “based on the testimony ... there was sufficient evidence [at trial] to conclude that the victim was under the age of sixteen.” At the hearing, “[t]he burden of proof ‘[was] on [Nix] to show by a preponderance of the evidence that he [was] entitled to relief.’ ” Roach v. State, 116 So.3d 126, 131 (Miss.2013) (quoting Doss v. State, 19 So.3d 690, 694 (Miss.2009)). Nix failed to meet his burden. The trial court concluded that the jury received sufficient evidence through the police officer’s uncon-tradicted testimony which established age. The officer’s testimony did not conflict with the victim’s own testimony, and the jury was free to accept or reject it. Furthermore, Nix presented no other evidence that the child’s age was anything other than that which was presented to the jury at trial. Thus, no unconscionable injustice was shown.

CONCLUSION

¶ 12. Based on the foregoing analysis, we find no error in the circuit court’s denial of Nix’s petition for PCR. Thus, we affirm both the judgments of the Court of Appeals and the Circuit Court of Harrison County denying post-conviction relief.

¶ 13. AFFIRMED.

WALLER, C.J., DICKINSON, P.J., LAMAR, PIERCE AND COLEMAN, JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND CHANDLER, JJ.

KING, Justice,

dissenting:

¶ 14. Nix sought PCR based upon the failure of the State to establish at trial that the victim was less than sixteen years of age. Thus, the only burden of proof placed upon Nix was to establish that the State, at trial, failed to prove beyond a reasonable doubt the victim’s age at the time of the incident. By showing that the State had failed to prove the victim’s age at trial on the charge of touching a child for lustful purposes, Nix fulfilled his burden on post-conviction relief. Thus, I dissent.

¶ 15. On direct appeal, the Court addressed whether Nix’s conviction was against the overwhelming weight of the evidence. Nix v. State (“Nix I”), 8 So.3d 141 (Miss.2009). The Court stated, “Nix asserts that the evidence presented could not support a finding that the prosecution had proved the elements of the offense charged beyond a reasonable doubt.” Id. at 146 (¶ 23). However, the Court’s opinion failed to address one element of the offense—the victim’s age. See id. at 146 (¶¶ 23-27).

¶ 16. Nix was indicted under Mississippi Code Section 97-5-23(1), which provides, in part, that:

Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child’s consent ... shall be guilty of a felony....

Miss.Code Ann. § 97-5-23(1) (Rev.2006) (emphasis added). The State bears the burden to prove every element of the charged offense beyond a reasonable doubt. Washington v. State, 645 So.2d 915, 918 (Miss.1994). In this case, “the age of the victim is an essential element of the offense that must be alleged and proved.” Id.

¶ 17. In Washington, the defendant was charged with sexual battery of a child under fourteen years of age. Washington, 645 So.2d at 917. During trial, evidence regarding the victim’s age was presented outside the presence of the jury. Id. at 918. The defendant argued that the State had failed to prove the victim’s age. Id. at 917-18. The circuit court determined that, based on the seven-year-old child’s appearance, the jury could make a determination regarding her age. Id. On appeal, the Court rejected the circuit court’s reasoning, stating:

The age of the victim “makes or breaks” the conviction. The prosecution’s failure to offer proof as to this element in sexual assault cases parallels the situation in which the prosecution fails to offer proof that an alleged victim of a murder is in fact dead. Such proof is usually easy to come by. But if the prosecution does not bring it before the jury, it has not overcome the presumption of innocence .... The State, as prosecutor, is bound by law to prove beyond a reasonable doubt every element of the crime.... There is no question that the Constitution’s supremacy precludes conviction under a criminal statute until the State, not the judiciary, meets the burden of proof, and until a jury, not the court, decides that the burden has been met.

Id. at 919-20. Accordingly, the Court reversed the conviction. Id. at 920. Interestingly, in Nix II, the State conceded that “limited testimony was provided at trial regarding the victim’s age and that if the issue had been raised on direct appeal it probably would have been held to have merit.”

¶ 18. The majority incorrectly suggests that, in Nix I, the Court considered evidence regarding the victim’s age and denied Nix’s claim. Maj. Op. at 42. The Court conducted no analysis on this element. The only reference to the victim’s age was provided in the opinion’s fact section, where the Court incorrectly stated that the victim was fourteen years old on the date of the incident. It is mathematically impossible for the victim to have been fourteen years old on the date of the incident and, fifteen months later, to have been seventeen years old on the date of trial. The Court’s error highlights the State’s failure to put on sufficient proof of the victim’s age at trial.

¶ 19. The majority also incorrectly suggests that the Court’s order in Nix II, granting Nix leave to proceed on his motion for PCR, required Nix to prove the victim’s age, stating: “a panel of this Court granted Nix a hearing in the trial court to establish that the State had failed to present sufficient evidence at trial that the victim was less than sixteen.” Maj. Op. at 42. The Court’s June 15, 2010, order directed simply “that the trial court shall conduct a hearing, limited to Nix’s issue regarding proof of the victim’s age on September 25, 2005.... ” In his PCR, Nix alleged that the State had failed to prove the victim was less than sixteen years old as mandated by the statute. See Miss.Code Ann. § 97-5-23(1) (Rev.2006). For Nix to prove that he was entitled to relief, he had to show only that the State had failed to present evidence before the jury which proved the victim’s age beyond a reasonable doubt. Because the victim’s age was an essential element of the crime charged, the burden of proof rested always with the State. Washington, 645 So.2d at 918. And whether the State met its burden must be judged solely on the evidence placed before the jury. Id. at 919-20. Accordingly, any affirmative evidence of the victim’s age offered by the State during the PCR hearing is irrelevant and cannot be considered in determining whether the State met is burden of proof at trial.

¶ 20. In Nix’s case, the incident occurred on September 25, 2005. The victim testified that she was seventeen years old at the time of trial-January 9, 2007. Her date of birth was never introduced at trial, and she did not testify regarding her age at the time of the offense. Fifteen months had elapsed between the date of the incident and Nix’s trial. Depending upon the victim’s birth date, she easily could have been sixteen years old at the time of the offense, which fails to satisfy the statute’s requirement that the victim be under the age of sixteen. Officer Manning testified that the victim was “a 14- or 15-year-old black female.” Officer Manning’s testimony also is insufficient to prove the victim’s age at the time of the offense. Indeed, the State failed to place any evidence before the jury for it to determine the victim’s age at the time of the incident beyond a reasonable doubt.

¶21. The majority mentions that “defense counsel referred to the victim as a ‘fifteen-year-old girl.’ ” Maj. Op. at 42. The majority, however, conveniently ignores an important rule of law: statements and arguments made by counsel are not evidence. See Walker v. State, 913 So.2d 198, 240 (¶ 157) (Miss.2005). The majority also, in footnote five, gives the impression that evidence of the victim’s date of birth was in fact introduced. That impression is misleading. The relevant question is what evidence regarding the victims’s date of birth was placed before the jury. The answer to that question is absolutely none. Any evidence of the victim’s date of birth presented after the jury has returned its verdict is irrelevant and of absolutely no probative value. In Washington, the Court stated that:

The references to the attorneys and judge agreeing that the child is under the age of fourteen is a separate and irrelevant question from whether the state put on proof, before the jury, sufficient to sustain a verdict that beyond a reasonable doubt, the victim was under the age of fourteen.

Washington, 645 So.2d at 919 (emphasis added). Evidence of the victim’s age that is presented outside the presence of the jury is insufficient to meet the State’s burden of proof. Id. At trial, the State, not Nix, bore the burden to prove every element of the offense beyond a reasonable doubt. It failed to do so.

¶ 22. The circuit court erred by denying Nix’s PCR. Based on the testimony presented at trial, the evidence was insufficient for a rational juror to determine beyond a reasonable doubt the victim’s age at the time of the offense. Nix has proved that he is entitled to relief. Because the State failed to prove an essential element of the offense at trial, I would reverse and render Nix’s conviction and sentence on the charge of touching a child for lustful purposes.

KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.

      . "Age may be adequately proven by testimony.” Watson v. State, 100 So.3d 1034, 1038 (Miss.Ct.App.2012) (citing Wright v. State, 856 So.2d 341, 344 (Miss.Ct.App.2003)).

      ."[I]n the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows 'beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed. Bush v. State, 895 So.2d 836, 843 (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). However, this inquiry does not require a court to
      ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

        Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

      . The jury was properly instructed that it should disregard any statements of counsel which ”ha[d] no basis in the evidence.” See Walker v. State, 913 So.2d 198, 240-41 (Miss.2005). Defense counsel's statement in closing did not conflict with any evidence presented to the jury.

      . In his "Supplemental Argument” to his motion for JNOV, Nix contended that he "should be held responsible only for the lesser crime of touching a child for lustful purposes....”

      . In its response to Nix’s motion before the trial court, the State offered that the victim's date of birth was December 27, 1989. It was undisputed that the incident occurred on September 25, 2005. Consistent with the testimony adduced at trial, the victim was under sixteen at the time of the crime.

      . The dissent cites Washington v. State, 645 So.2d 915 (Miss.1994). In Washington, "no direct oral testimony [was] presented to the jury” by which it could conclude that the victim’s age met the statutory requirements. Id. at 916. We also note that the dissent would reverse and render this case, ignoring the proper disposition of the case upon which it relies, for the Washington Court reversed and remanded. Id. at 920.

      . "If a defendant is charged with sexual battery ... then age of the victim is a critical element of the charge. Failure to prove the victim’s age can be fatal to a conviction.” Jeffrey Jackson and Mary Miller, 3 Encyclopedia of Mississippi Law § 23:101 (2001) (emphasis added).

      . While the victim testified that she was seventeen years old on the date of trial, her testimony did not establish that she was less than sixteen years old on the date of the charged incident. It is just as probable that she could have been seventeen on the day of trial and sixteen on the date of the incident as it is probable that she could have been seventeen on the date of trial and less than sixteen on the date of the incident.

      . The majority suggests that to reverse and render the case is incorrect, and we should, as done in Washington, reverse and remand the case to the trial court. In regard to the disposition of this case, the majority is wrong. The law is clear:
      Our law is that the burden of proof is upon the State to prove each element of the crime. If it fails in so doing, the defendant is entitled to an acquittal on the offense charged....

        Warren v. State, 709 So.2d 415, 420 (¶ 25) (Miss.1998) (citations omitted) (emphasis added). Because the State failed to prove each element of the offense, the appropriate remedy is to reverse and render the case.


author: GRIFFIS, P.J.,

text:
    Lee Darrel NIX a/k/a Lee Darryl Nix a/k/a Lee D. Nix a/k/a Lee Darreln Nix a/k/a Lee Nix a/k/a Lee Darrell Nix, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00372-COA.
    Court of Appeals of Mississippi.
    Oct. 16, 2012.
    Rehearing Denied April 2, 2013.

      Lee Darrel Nix, pro se, appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Lee Darrel Nix appeals the circuit court’s denial of his motion for post-conviction collateral relief. He argues that the circuit court improperly found that the State had met its burden to prove the age of the victim in this case. We find that Nix waived this issue when he failed to raise it in his direct appeal to the Mississippi Supreme Court. Accordingly, the circuit court’s denial of post-conviction collateral relief is affirmed.

FACTS

¶ 2. Nix was charged with touching a child for lustful purposes in violation of Mississippi Code Annotated section 97-5-23(1) (Rev.2006) and kidnapping in violation of Mississippi Code Annotated section 97-3-53 (Supp.2011). The jury found Nix guilty of both crimes. He was sentenced to serve two consecutive ten-year terms in the custody of the Mississippi Department of Corrections.

¶ 3. Nix appealed his conviction to the Mississippi Supreme Court. He presented two assignments of error: (1) his counsel was ineffective, and (2) the verdict was against the overwhelming weight of the evidence. Nix v. State, 8 So.3d 141, 142 (¶ 1) (Miss.2009). The supreme court found no error and affirmed Nix’s conviction. Id. at (¶ 2).

¶ 4. Nix then sought permission from the supreme court to file a motion for post-conviction collateral relief in the circuit court. See Miss.Code Ann. § 99-39-7 (Supp.2011). The supreme court granted Nix’s request. The circuit court was ordered to conduct a hearing “limited to Nix’s issue regarding proof of the victim’s age on September 25, 2005, as it pertains to his conviction of [tjouching a [cjhild for [ljustful [pjurposes.”

¶ 5. Nix filed his motion, and the circuit court held a hearing solely to determine whether the State had met its burden at trial of proving the age of the minor victim. The State presented evidence from the record to prove that the date of the incident was September 25, 2005. However, the State could only show two instances in the record where witnesses testified about the victim’s age.

¶ 6. First, the victim testified that she was seventeen years old on January 9, 2007—the day of trial. Second, Officer Kit Manning of the Biloxi Police Department testified that, when he arrived on the scene on September 25, 2005, he spoke with the victim, whom he described as a “[fourteen]- or [fifteen]-year-old black female.”

¶ 7. The State argued that these statements constituted sufficient evidence to prove that the victim was fifteen years old on September 25, 2005. The circuit court agreed. It concluded that “[w]hile the jury was never told the victim’s birthday at the trial, her age was mentioned several times[,] and the Defendant never objected. In fact, defense counsel even referenced that the victim’s age was fifteen years old on the night of the incident.” Thus, Nix’s motion for post-conviction collateral relief was denied.

STANDARD OF REVIEW

¶ 8. A circuit court’s denial of post-conviction collateral relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

¶ 9. Nix’s current attack of his conviction is governed by the Mississippi Uniform Post-Conviction Collateral Relief Act, codified in Mississippi Code Annotated sections 99-39-1 to -29 (Rev.2007 & Supp.2011). “The Post-[C]onviction Collateral Relief Act provides a procedure limited in nature to review those matters which, in practical reality, could not or should not have been raised at trial or on direct appeal.” Foster v. State, 687 So.2d 1124, 1129 (Miss.1996).

¶ 10. In fact, the Act itself limits the issues that may be raised on collateral attack and includes the following waiver:

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

Miss.Code Ann. § 99-39-21(1) (Rev.2007).

¶ 11. Here, Nix’s claim that challenges the victim’s age could have been made at trial and on direct appeal. Thus, he must show cause and actual prejudice to be granted relief from the waiver.

¶ 12. The term “cause” is “limited to those cases where the legal foundation upon which the claim for relief is based could not have been discovered with reasonable diligence at the time of trial or direct appeal.” Miss.Code Ann. § 99-39-21(4). The issue now raised by Nix was certainly ripe for review on direct appeal; the question of whether there was sufficient evidence to prove the victim’s age could have been discovered with reasonable diligence at the time of trial or direct appeal.

¶ 13. The supreme court considered this issue in Woodward v. State, 635 So.2d 805, 807 (Miss.1993). In the petitioner’s motion for post-conviction collateral relief, he raised a Fourth Amendment objection to the admission of illegally obtained evidence. Id. Woodward had not raised the issue on direct appeal. Id. The supreme court, citing the definition of “cause” in section 99-89-21(4), held that the issue was barred by the waiver in section 99-39-21(1). Woodward, 635 So.2d at 807. The supreme court stated:

Woodward cannot meet the test of cause. Here, the basis of the Fourth Amendment objection to the admission of illegally obtained evidence is certainly by now deeply rooted and well known. This Court has a long tradition of reversing convictions based on the admission of illegally obtained evidence.

Id. (citation omitted).

¶ 14. Similarly, objections to the sufficiency of the State’s proof on an essential element of the crime charged are routinely raised at the trial level and on direct appeal. Because Nix failed to raise the issue of the victim’s age, he cannot show cause, and the waiver in section 99-39-21(1) applies. The circuit court reached the right result in denying Nix’s request for post-conviction collateral relief; therefore, the judgment of the circuit court is affirmed.

¶ 15. As additional grounds to deny the relief sought, we note that “[t]he term ‘actual prejudice’ as used in this section shall be defined and limited to those errors which would have actually adversely affected the ultimate outcome of the conviction or sentence.” Miss.Code Ann. § 99-39-21(5). Here, Nix would be required to show that this error would have adversely affected the outcome of his conviction. Id. To prevail on a motion for post conviction collateral relief, Nix had the burden to show that this error would have changed the result of his conviction. Miss.Code Ann. § 99-39-21(6). We interpret this to require Nix to present evidence of the victim’s actual age to show that he would be entitled to relief. He has not. We find no error in the circuit court’s judgment.

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

LEE, C.J., BARNES, ISHEE, ROBERTS, CARLTON, RUSSELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY. MAXWELL, J., CONCURS IN PART AND IN THE RESULT.