author: SAUNDERS, J.

text:
    Carl RAVEY v. ROCKWORKS, LLC, et al.
    No. 12-1305.
    Court of Appeal of Louisiana, Third Circuit.
    April 10, 2013.

      Michael J. Remondet, Jr., Jeansonne & Remondet, Lafayette, LA, for Defendants/Appellees, Rockworks, LLC, Colony Speciality Ins. Co.
    Kilyun Luke Williamson, Williamson, Fontenot & Campbel, Baton Rouge, LA, for Plaintiffs/Appellants, Carl Ravey.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   SAUNDERS, J.

| jThis ease involves a suit by the patron of a rock climbing facility against the facility for negligence in training and supervision. The trial court granted the facility’s motion for summary judgment and dismissed the suit. We affirm.

FACTS AND PROCEDURAL HISTORY:

On August 14, 2010, Plaintiff-Appellant, Carl Ravey (“Ravey”), as a mentor for youth, was visiting Lafayette, Louisiana with the Civil Air Patrol, which operates out of Ascension Parish, Louisiana. The Civil Air Patrol is comprised of children aged twelve to eighteen. The group was in Lafayette for a training exercise at the University of Louisiana at Lafayette. While in Lafayette, the group of sixteen young men and women, with their adult chaperones, and with a Civil Air Patrol Unit from Hammond, Louisiana, visited Rok Haus to use the climbing facilities.

Upon their arrival, the participants paid their individual fees and initiated a group safety training exercise with Adelle Anderson (“Anderson”), one of the employees at Rok Haus that evening. The attendees received training and instruction on climbing safety and the safe use of climbing equipment in a fifteen to twenty minute safety meeting known as a “belay check.” Every climber at Rok Haus is harnessed and equipped with a safety rope, which is attended to and operated by a “belayer,” who controls the safety rope through a locking device known as a Gri-gri. The belayer’s job is to look after the climber’s ropes and to operate the Grigri. In order to release the rope to allow a climber to descend, the belayer must pull a lever on the side of the Grigri.

Following safety training, Ravey began to climb the rock wall while tethered to his belayer, David Kelley (“Kelley”), a fourteen-year-old member of the Civil Air Patrol. The group climbed for approximately forty-five minutes when Ravey, 12upon reaching the top of the wall, a distance of approximately twenty to twenty-four feet from the ground, fell almost all the way to the ground. He was partially suspended, but fell far enough such that his leg impacted the floor and was injured. As Ra-vey fell, the safety rope fed freely through the locking device indicating that Kelley was holding the lever in the open position. When Kelley released the lever, the Grigri locking device engaged and the rope arrested Ravey’s fall, but Ravey’s leg had already made contact with the floor and was injured.

Ravey brought this action alleging negligence on the part of Rok Haus and its affiliates/insurer. Rok Haus filed a motion for summary judgment alleging no duty was breached on the part of Rok Haus and that there was no genuine issue of material fact so judgment was proper as a matter of law. The trial court granted the motion for summary judgment and dismissed Ra-vey’s claims. Ravey appeals.

ASSIGNMENTS OF ERROR:

Ravey sets forth the following assignments of error:
1. The trial court erred in granting the motion for summary judgment as there is an increased duty to provide training and supervision when minors are involved in an inherently dangerous activity.
2. The trial court erred in granting the motion for summary judgment as there are genuine issues of material fact regarding the adequacy of training received by the Ravey party prior to engaging in a hazardous activity and regarding the adequacy of the supervision provided after training.

LAW AND ANALYSIS:

Standard of Review

When an appellate court reviews a district court’s judgment on a motion for summary judgment, it applies the de novo standard of review, “using the same criteria that govern the trial court’s consideration of whether summary judgment is ^appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638.

A motion for summary judgment shall be granted when “the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966. “[I]f reasonable persons could only reach one conclusion, then there is no need for trial on that issue and summary judgment is appropriate.” Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765-66 (quoting Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751). A fact is “material” when “its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Smith, 639 So.2d at 751.

1. Heightened Duty

The first issue raised on appeal deals with the issue of negligence on the part of Rok Haus. In order for liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) duty, (2) breach, (3) cause-in-fact, (4) scope of duty/scope of risk, and (5) actual damages. Pinsonneault v. Merch. & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270.

“Duty is a question of law. Simply put, the inquiry is whether the plaintiff has any law — statutory, jurisprudential, or arising from general principles of fault — to support his claim.” Faucheaux v. Terrebonne Consol. Government, 615 So.2d 289, 292 (La.1993). The duty owed to an invitee “is that of reasonable and ordinary care, which includes the prior discovery of reasonably discoverable conditions of the premises that may be unreasonably dangerous, and correction thereof or a warning to the invitee of the danger.” Alexander v. Gen. Acc. Fire & Life Assur. Corp., 98 So.2d 730, 732 (La.App. 1 Cir.1957). “[MJembers of [gyms] are owed a duty of reasonable care to protect them from injury on the premises.” Thomas v. Sport City, Inc., 31,994 (La.App. 2 Cir. 06/16/99), 738 So.2d 1153, 1157. “This duty necessarily includes a general responsibility to ensure that their members know how to properly use gym equipment.” Id.

Ravey argues that rock climbing at Rok Haus is an unreasonably dangerous activity such that it requires a heightened duty. In support of this argument, he cites Prier v. Horace Mann Ins. Co., 351 So.2d 265 (La.App. 3 Cir.1977), writ denied, 352 So.2d 1042(La.), where the court found that a greater degree of care must be exercised by a school if a student uses an inherently dangerous object or engages in an activity where it is reasonably foreseeable that an accident or injury may occur.

In Prier, the court stated that a teacher could not be “liable in damages unless it is shown that he or she, by exercising the degree of supervision required by the circumstances, might have prevented the act which caused the damage, and did not do so.” Prier, 351 So.2d at 268. “It is also essential to recovery that there be proof of negligence in failing to provide the required supervision and proof of a causal connection between that lack of supervision and the accident.” Id. It further, explained:

Again, the school board cannot foresee and guard against all the dangers incident to the rashness of children. It is not the insurer of the lives or safety of children. The school board, through the principals and/or the teachers, are expected to take reasonable precautions and care to avoid injury to the students.

Id. at 269 (quoting Whitfield v. East Baton Rouge Parish Sch. Bd., 43 So.2d 47 (La. App. 1 Cir.1949)).

As with school boards, gyms are not the insurers of the lives or safety of the patrons of the club. See Gatti v. World Wide Health Studios of Lake Charles, Inc., 323 So.2d 819 (La.App. 2 Cir.1975). A gym cannot be expected to foresee or guard against all dangers incident to the rashness of its patrons. Furthermore, the gym must only take reasonable precautions under the circumstances to avoid injury. To prove negligence on the part of Rok Haus, Ravey must show both a failure to provide reasonable training and supervision under the circumstances, as well as proof of a causal connection between this lack of reasonable training/supervision and the accident.

As a gym, Rok Haus owed a duty of reasonable care under the circumstances. The equipment was visually inspected pri- or to usage and was functioning properly after the incident. Ravey and Kelley were given proper instructions on how to climb the wall and use the' equipment properly. Ravey and Kelley were also observed using the equipment to lower climbers properly before they were allowed to climb and belay by themselves. During the time the group was climbing prior to the accident, two Rok Haus employees observed the group to ensure they were using the gym’s equipment properly. Ravey made five or six successful climbs on the wall of the gym prior to the accident.

It cannot be said that Rok Haus acted unreasonably in training its patrons on the proper use of the climbing equipment and in assisting the patrons with the equipment. Rok Haus employees provided the usual training to Ravey and his belayer. The employees observed them using the equipment properly before allowing them to climb on their own. The Rok Haus employees also continued to supervise the climbers after training. There is no evidence that the measures taken by Rok Haus’ employees to protect its patrons were inadequate under the circumstances and that a lack of supervision/training caused the accident. There |fihas not been a showing of both a failure to provide proper supervision and training along with a causal link to the incident in question. As such, there is no evidence that Rok Haus breached its duty of as a gym owner. Because the first element of negligence has not been sustained, the other four will not be addressed.

2. Adequacy of Training & Supervision

The final issue raised on appeal is whether there is a genuine issue of material fact as to the adequacy of training and supervision provided by Rok Haus. The existence of evidence as to inadequacy of training and supervision is essential to plaintiffs cause of action. Without evidence as to said inadequacy, summary judgment was proper. See La.Code Civ.P. art. 966.

Rok Haus mandates a “belay check” safety session before any patrons climb the rock walls. During the belay check, the patrons are assisted with donning their harnesses and fastening themselves to the safety ropes. When a patron is climbing the wall, he is attached to a rope that runs up to a pulley anchored to the ceiling. From the pulley, the rope runs down to the belayer. The belayer wears a harness which is anchored to the floor and attached to the Grigri, through which the rope from the ceiling pulley runs. The function of the Grigri is to clamp the rope if the climber should fall. It is designed such that it is automatically clamps the rope if there is a sudden pull on the rope. In order to feed slack to the climber so that he may descend, the belayer must manually pull a lever to release the clamp on the rope.

The members of the Civil Air Patrol were instructed in pairs. Ravey and Kelly were given instructions on how to climb the wall and use the equipment properly. When climbing higher than ten feet along the wall, as Ravey was doing, climbers and belayers are required to wear harnesses attached to a safety rope. After instructions and assistance in donning the protective gear, the climber and |7belayer were instructed in the proper method of belaying. Thereafter, the belayers handle the ropes under the instructors’ supervision.

Once the instructor determines the be-layer can handle the safety ropes correctly, the belayers are instructed in the proper procedure for lowering a climber. The belayers must then operate the rope and the Grigri under the supervision of an instructor. After demonstrating an ability to belay the instructor, the belayers are allowed to belay volunteer climbers in the group under the supervision of the instructor.

This safety training session lasted approximately fifteen to twenty minutes. The members of the Civil Air Patrol group were individually instructed in safe climbing and belaying techniques and were observed operating the equipment properly before being allowed to climb and belay on their own. After receiving their safety training in the proper methods of belaying, Ravey, Kelley, and the rest of the Civil Air Patrol group climbed for forty-five minutes to an hour. During this time, two supervisors were present who observed the group to ensure that they were using the gym’s equipment properly. Ravey made five or six climbs on the wall prior to his accident.

There is no evidence to suggest that Rok Haus did not act reasonably in training its patrons on the proper use of the climbing equipment and in assisting the patrons in donning the equipment. Each patron who belays (operates the safety control device, the Grigri, and controls the safety rope) is personally instructed on the proper belaying techniques and is observed to ensure that the patron is capable of operating the equipment correctly before they are allowed to belay on their own. Furthermore, after completion of the safety check and practice, the climbers remained under the supervision and watch of two supervisors. The absence of evidence as to the material facts of inadequate training and inadequate supervision |smakes summary judgment appropriate. As such, summary judgment as to the adequacy and training and supervision was proper.

We note that rock climbing is a recreational activity that involves substantial risk. Many other recreational activities such as weight lifting and swimming also involve a substantial degree of risk. The risk associated with these and other physically-challenging sports are well recognized. The duty on the gym operator, when these types of sports are conducted, is that of providing a sound and secure environment for undertaking a clearly risky form of recreation and not that of removing every element of danger inherent in rock climbing, weight lifting, or swimming. The duty imposed on the gym is one of reasonable care under the circumstances. Ravey focuses on the age of the boy holding the rope and argues that he should have been given more training because of his age. However, Ravey points to no authority suggesting that fourteen year olds are not adequately mature to perform this kind of activity or that the training was inadequate in this instance. The record contains no evidence to suggest the training was inadequate or that a person of fourteen years would need more training than was given to teach him to perform. It is this total absence of evidence that drives the summary judgment process and, in this case, compels affirmation.

CONCLUSION:

The record contains no evidence to suggest that the duty of Rok Haus to provide training and supervision was not done reasonably under the circumstances. Furthermore, there is no genuine issue of material fact as to the adequacy of training received by the Ravey party prior to engaging in climbing and regarding the adequacy of the supervision provided after training.

Costs of this appeal are assessed to Ra-vey.

AFFIRMED

      . The particular Grigri (hand brake) in question remained in use for approximately one year after the incident.


source: Caselaw Access Project

author: RANDOLPH, Presiding Justice,

license: Public Domain

text:
    Talib Ammer HANNAH a/k/a Talib Hannah a/k/a Talib A. Hannah a/k/a Kane v. STATE of Mississippi.
    No. 2011-KA-00515-SCT.
    Supreme Court of Mississippi.
    March 7, 2013.
    Rehearing Denied May 16, 2013.
    Brandon Isaac Dorsey, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Following a jury trial in the Circuit Court of Washington County, Mississippi, Talib Hannah was convicted of possession of cocaine with intent. On appeal, Hannah challenges his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. Based upon information from a confidential informant, the “drug unit” of the Washington County Sheriffs Department procured a search warrant for a Green-ville, Mississippi, residence. Upon arrival, Deputy Kevin Seaton positioned himself at a “back windowf,]” in the event of an “escape or flee from the scene.” When the officers entered the residence, Billy Dean Williams was apprehended while seated in the living room. Hannah fled down the hallway and “went off into a bedroom on the far left....” According to Deputy Sea-ton, Hannah “hurled himself through the window where I was positioned.... ” Only Hannah’s “upper torso” extended through the window, and he was commanded to “freeze.” Hannah opened his hands “as if he was releasing something!,]” then “kind of used his elbows to give himself some leverage to go back in.” Seconds later, Hannah was apprehended in the hallway by Sergeant Williams. Sergeant Jimmy Branning went outside “to where Deputy Seaton was standing!,]” and “located ... a bag of suspected crack cocaine” on the ground beneath the window. Additionally, marijuana and a digital scale were found in the living room, along with cash in the amount of $4,670 on Hannah and $225 on Williams.

¶ 3. On June 14, 2010, Hannah and Williams were coindicted for “each acting one with the other, ... unlawfully, willfully, knowingly and feloniously havfing] and possessing] 2.6 grams [c]ocaine, a Schedule II controlled substance, with the intent to sell, barter, transfer or....” On August 11, 2010, Williams filed a motion for severance and a separate trial. On August 18, 2010, the trial court granted Williams’s motion for severance and a separate trial. On August 13, 2010, Hannah filed a motion for continuance. Hannah’s motion for continuance averred his newly appointed counsel needed additional time. The trial court granted the continuance on August 16, 2010. On September 29, 2010, Hannah filed another motion for continuance due to the fact that his attorney had a scheduling conflict. The State did not object and the motion was granted. Trial was set for December 8, 2010. Hannah filed two motions in limine. One of the motions is the subject of the matter on appeal today, a motion for the State to disclose the identity of a confidential informant. Hannah’s attorney filed these motions on November 30, 2010, and hand-delivered them on the same date. The court heard them on Monday, December 6, 2010.

¶ 4. Following the hearing on December 6, the circuit court denied Hannah’s motion. The circuit court found, “the confidential informant was not present at the time of the alleged crime and will not be called as witness at trial, but merely provided information for the search warrant that was issued in this case. Accordingly, his identity is protected under the laws of this State.”

¶ 5. On Wednesday, December 8, 2010, the jury trial commenced. Following Hannah’s introduction to the jury during voir dire, Hannah stated “[c]an I address the [c]ourt, sir? I just wanted to ask, it was another guy that was — ....” At that point, a brief bench conference was conducted outside the jury’s hearing, in which Hannah asked, “[c]an I call ... [Williams] as a witness?” Hannah’s counsel replied, “we have talked about all this.” In subsequent in-chambers proceedings, Hannah’s counsel stated:

I have explained to [Hannah].... He still ... is disgruntled because [Williams] is not here. He’s asked that I issue a subpoena for [Williams]. I have absolutely no idea where [Williams] is. I have also explained that even if [Williams] is subpoenaed to the court today, he has a pending case, and his lawyer ... may very well invoke the Fifth and not let him testify anyway.... [Hjaving said all that, I guess to protect [Hannah’s] rights, ... I’ll ask for a continuance to find [Williams] for whatever reason that would accomplish.

Despite questioning the futility of calling Williams, Hannah’s counsel contended that “[the defense’s] position [is] that ... Williams [is] the one that was selling the drugs, not ... Hannah,” and, as such, “[Williams is] an indispensable witness.” The State objected to Hannah’s motion for continuance, and maintained that Hannah had been granted two prior continuances and this was a pretextual “delay tactic” with “no real chance that [Williams] would in fact testify.” The circuit judge denied Hannah’s motion for continuance, and stated:

I’m going to deny the continuance, because I don’t think you could get this guy to testify anyway. He — certainly his lawyer would not allow him to testify, because he is under indictment himself. He would have a Fifth Amendment right not to testify like you have a right not to testify. And I’m just not going to grant the continuance for that purpose....
See, if they — and their lawyer would tell them not to testify. Whether they wanted to testify or not, their lawyer would tell them not to. Because I wouldn’t let my guy testify, if I were a lawyer.

¶ 6. Later in voir dire, during further in-chambers proceedings, Hannah stated that he “would like to have a paid lawyer” because he “didn’t feel like [his present counsel] was properly ready ... to go to trial.... ” The circuit judge stated that Hannah’s counsel “has done what the defense lawyers do[,]” and that Hannah had not “articulated a single thing that [counsel] has done or failed to do that would not be done by any other competent lawyer in a case of this nature.” Based thereon, the circuit judge concluded that “I’m not going to continue the trial. Now you can tell [counsel] to leave and you can try the case yourself. I don’t think you want to do that.” Hannah replied, “[n]o, I wouldn’t try to do that.”

¶ 7. During direct examination of the State’s first witness, further in-chambers proceedings were conducted, and Hannah stated, “I would like to get another lawyer, but if I have to do it on my own, then that’s the procedure.” The circuit judge first noted that counsel for Hannah had “34 years of experience in being in here[,]” then stated that “you can go hire another lawyer, but he would have to come in right now, and I’m not going to let you leave the courtroom to go find one.” Hannah responded, “I think he’s a good lawyer.... I feel like if I can just let [the jury] know what’s common sense, what took place on the incident ... without leaving out little key pointers that weigh in my favor, ... those little key pointers that’s not being said could really hurt me.... ” The circuit judge reiterated that “[y]ou can’t get [Williams] because he’s indicted in this case[,]” and that Williams’s lawyer “would never allow him to testify in this case, because he would be potentially destroying his own case....” The circuit judge then questioned Hannah about his decision to proceed pro se and informed him of the risks of self-representation. Ultimately, the circuit judgq found that Hannah had made a “knowing, intelligent, and voluntary waiver of [his] right to counsel pursuant to Rule 8.05 of the ... Uniform Circuit and County Court Rules.”

¶ 8. During trial, Hannah cross-examined several of the State’s witnesses, but voluntarily absented himself from the courtroom following a noon recess. The State moved for the trial to continue “forward in absentia.” The circuit judge informed the jury that “under the law of this state as long as you are present when the trial begins, the trial proceeds. [] ... So we’re going to go forward and maybe [Hannah] will show up and maybe he won’t....” The jury found Hannah guilty of possession of cocaine with intent. Two months later, a sentencing hearing was conducted with Hannah and new counsel present. Following that hearing, the Court sentenced Hannah to sixty years.

ISSUES

¶ 9. On appeal, this Court will consider:

(1) Whether the circuit court abused its discretion in denying Hannah’s “Motion for the State to Disclose the Identity of Its Confidential Informant.”
(2) Whether the circuit court abused its discretion in denying Hannah’s motion for continuance.

ANALYSIS

I. Whether the circuit court abused its discretion in denying Hannah’s “Motion for the State to Disclose the Identity of Its Confidential Informant.”

¶ 10. The circuit court’s ruling regarding the disclosure, vel non, of a confidential informant is reviewed for abuse of discretion. See Young v. State, 245 So.2d 26, 27 (Miss.1971).

¶ 11. The privilege extended to confidential informants operates to protect “the public interest in effective law enforcement,]” insofar as it “recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.” Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957). Uniform Circuit and County Court Rule 9.04(B)(2) provides that:

[disclosure of an informant’s identity shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose his/her identity will infringe the constitutional rights of the accused or unless the informant was or depicts him-selfiherself as an eyewitness to the event or events constituting the charge against the defendant.

URCCC 9.04(B)(2) (emphasis added). According to this Court:

[i]n Pace v. State, 407 So.2d 530, 583 (Miss.1981), the Court said:

There is no absolute rule requiring disclosure of an informer’s identity. Recognition of the public interest and effective law enforcement has led to a privilege, although not absolute, of the prosecution to refuse disclosure of the identity of a confidential informer. [Roviaro, 353 U.S. at 53, 77 S.Ct. 623]. In Roviaro, the United States Supreme Court stated:

Where the disclosure of the informer’s identity, or of the contents of his communication is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. ([Roviaro, 353 U.S. at 60-61, 77 S.Ct. 623]).

The proper rule regarding the circumstances under which the identity of the informer should be disclosed was stated in [Young ]:

Ordinarily, disclosure of the identity of an informer, who is not a material witness to the guilt or innocence of the accused, is within the sound discretion of the trial court. Strode v. State, 231 So.2d 779 (Miss.1970). On the other hand, where the informer is an actual participant in the alleged crime, the accused is entitled to know who he is.... (Young, 245 So.2d at 27).

Read v. State, 430 So.2d 832, 835-36 (Miss. 1983).

¶ 12. In Read, this Court concluded that the confidential informant’s identity was not required to be disclosed, as:

it is clear from the record that the informant was not a participant in the crime, but that he personally saw drugs at the residence and related such information to the police. There is no indication or suggestion th^t he bought or used the drugs, and he was not present when the officers searched the house.

Id. at 836 (emphasis added). See also Carry v. State, 710 So.2d 853, 858-59 (Miss.1998) (“there is no evidence in the record that the informant participated in the crime or was an eyewitness to the crime.... Therefore, the trial judge’s decision to deny the defendant’s motion to require disclosure of the confidential informant’s identity was not manifestly wrong.”); Esparaza v. State, 595 So.2d 418, 424 (Miss.1992) (“the confidential informant did not witness the offense charged and did not serve as a witness in the proceeding. The informant merely provided data that established probable cause to support a search warrant. Under Mississippi law, that degree of connection with the crime charged constitutes too tenuous a link to justify disclosing the informant.”) (emphasis added); Amett v. State, 532 So.2d 1003, 1008 (Miss.1988) (“There is no evidence in the record that the informant was a participant or an eyewitness to the crime, and consequently disclosure of the witness was within the sound discretion of the trial judge.... No error was committed in withholding the informant’s identity.”).

¶ 13. The circuit court’s order denying Hannah’s “Motion for the State to Disclose the Identity of Its Confidential Informant” provided that “the confidential informant was not present at the time of the alleged crime and will not be called as witness at trial, but merely provided information for the search warrant .... Accordingly, his identity is protected under the laws of this State.” (Emphasis added.) We cannot conclude that the circuit court abused its discretion in denying Hannah’s “Motion for the State to Disclose the Identity of Its Confidential Informant,” as these circumstances provided “too tenuous a link to justify disclosing the informant.” Esparaza, 595 So.2d at 424. Accordingly, this issue is without merit.

II. Whether the circuit court abused its discretion in denying Hannah’s motion for continuance.

¶ 14. This Court has stated that:

[t]he decision to grant or deny a motion for continuance is within the trial court’s sound discretion. Payton v. State, 897 So.2d 921, 931 (Miss.2003). It “will not be grounds for reversal unless shown to have resulted in manifest injustice.” Id.

Harden v. State, 59 So.3d 594, 601 (Miss. 2011).

¶ 15. The circuit court’s denial of Hannah’s motion for a continuance was for a practical reason, albeit without legal basis. The circuit court recognized the likely (almost certain) futile outcome of the defendant exercising his constitutional right “to have compulsory process for obtaining witnesses in his favor.” However, the circuit court’s conclusory reasoning lacks a proper legal basis to deny the defendant his right to call a witness. See supra, ¶¶ 5, 7.

¶ 16. It is well-settled in Mississippi that a “criminal defendant must be allowed to call witnesses to the stand even though the defendant is aware that the witness, if called, will invoke the Fifth Amendment to every question.” Balfour v. State, 598 So.2d 731, 751 (Miss.1992). “It is not enough to presume or suspicion [sic] that someone will assert his Fifth Amendment privilege against self-incrimination and refuse to testify. [He] must be called to the stand and there refuse to testify before [he] becomes unavailable due to invoking the Fifth Amendment.” Slater v. State, 731 So.2d 1115, 1117 (Miss.1999).

¶ 17. Consistent with Balfour and Slater, this Court also has stated:

[T]his Court ha[s] previously considered the right of a defendant to call a witness when it was known that the witness would claim the Fifth Amendment right to refuse to answer questions. Stewart v. State, 355 So.2d 94 (Miss.1978). In Stewart, we held it was reversible error to refuse to permit the defendant to call as a witness another person involved in the altercation which was the subject of the criminal prosecution. The fact that the witness would refuse to answer most of the questions asked on the grounds that they might incriminate him was held not to bar a defendant’s right to call and question witnesses in his behalf.

Coleman v. State, 388 So.2d 157, 158-59 (Miss.1980). Like the defendants in Stewart and Coleman, Hannah desired to call a witness, his coindictee, who was “involved in the [event] which was the subject of the criminal prosecution.” Id. at 159. The circuit court’s ruling mirrored the errors found in Stewart and Coleman, ie., that it would be futile to put the witness on the stand because he inevitably would invoke his Fifth Amendment privilege against self-incrimination, despite Hannah’s constitutional right “to have a the jury hear the [witness] either answer questions or else claim h[is] Fifth Amendment rights.” Id.

CONCLUSION

¶ 18. As Hannah’s Sixth Amendment right to compulsory process to call a witness was not recognized, we are constrained to reverse his conviction and sentence and remand for a new trial.

19. REVERSED AND REMANDED.

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

      . Williams was represented by the. local public defender's office and was bonded by a local bail bondsman agency.

      . See Blanchard v. State, 55 So.3d 1074, 1077-78 (Miss.2011) (quoting Jay v. State, 25 So.3d 257, 264 (Miss.2010)) (a defendant’s constitutional right "to be present at every stage of his trial ... may be waived based on a defendant's 'willful, voluntary, and deliberate absence from trial.' "); Miss.Code Ann. § 99 — 17—9(b) (Rev.2007).

      . The circuit court stated: "[Hannah is adjudicated] a subsequent offender pursuant to [Section] 41-29-147, as [Hannah] has been previously convicted of a prior felony relating to narcotic drugs, marijuana, depressant, stimulant, or hallucinogenic drug.... [Farther. ... [Hannah] [i]s a habitual criminal pursuant to [Section] 99-19-81, as [Hannah] has been previously convicted of two prior felonies separately brought and arising out of separate incidents at different times and was sentenced to a year or more in a state or federal penal institution.”

      . Miss. Const, art. 3, § 26.

      . The record reveals multiple legal grounds upon which the circuit court properly might have denied Hannah’s motion for continuance. Hannah's ore tenus motion on the day of trial which raised the issue of an indispensable witness (for the first time) could have been held to be untimely. Furthermore, Hannah provided no indication to the circuit court that it had been impossible or impracticable to obtain Williams to testify, and he provided no affidavit or proffer as to what Williams's testimony might reveal or how his testimony might aid Hannah’s defense. See Muise v. State, 997 So.2d 248, 255 (Miss.Ct. App.2008) (quoting Cleveland v. State, 820 So.2d 37, 39 (Miss.Ct.App.2002)) ("The refusal of a motion for continuance on the ground of the absence of a witness will not be overturned on a motion for new trial unless the witness, or his affidavit showing what his testimony would be, is offered on the hearing of the motion, or it is shown that it was impossible or impracticable to secure the attendance of the witness or to secure his affidavit.”). Lastly, Hannah made no request for a subpoena instanter for Williams. Had the circuit court based its denial of continuance on any of, but not limited to, these grounds, we very well may have found that the circuit court was within its discretion to deny Hannah’s continuance.


author: KITCHENS, Justice,

text:
    Travis KEITHLEY a/k/a Travis Lee Keithley v. STATE of Mississippi.
    No. 2010-KA-01581-SCT.
    Supreme Court of Mississippi.
    April 18, 2013.

      Office of State Public Defender by Leslie S. Lee, Justin Taylor Cook, Phillip Broadhead, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, Scott Stuart, attorneys for appellee.
   KITCHENS, Justice,

for the Court:

¶ 1. In this appeal from his conviction for aggravated assault, Travis Keithley argues that it was plain error to admit into evidence the “statements” of two anonymous people, that the verdict was not supported by the evidence, and that he received ineffective assistance of counsel. Finding no reversible error, we affirm Keithley’s conviction and sentence, and dismiss his ineffective-assistance-of-counsel claims without prejudice.

The Evidence

¶ 2. The majority of the inculpatory evidence was presented to the jury through the testimony of the complaining witness, Timothy Thomas. Thomas testified that, on the night of March 7, 2009, as he was leaving a store in Leland, Mississippi, Keithley confronted Thomas, accusing him of “talking noise.” Thomas responded that Keithley must have had him confused with someone else, whereupon Thomas turned to walk away. According to Thomas, Keithley began following him, and when Thomas turned around, Keithley pulled out a handgun and began shooting at him. Thomas testified that he had tried to run away, but tripped and fell to the ground. Already wounded, Thomas looked up and saw Keithley standing over him. Keithley shot Thomas once more and fled. Several bystanders came to Thomas’s aid, and Thomas testified that, just before losing consciousness, he told an unidentified man that he had been shot. In all, Thomas suffered six gunshot wounds.

¶ 3. Thomas awoke in an intensive care unit (ICU) of the University of Mississippi Medical Center. On the second day of his hospitalization, Gloria Rodgers of the Leland Police Department interviewed Thomas about the shooting. Thomas was unable to speak but gave a handwritten statement identifying Keithley as his attacker.

¶ 4. Officer Rodgers had been one of the first law enforcement officials to respond to the shooting incident. She testified at trial that, when she arrived, she and her fellow officers had to make their way through a crowd that had gathered after the shooting. When Rodgers reached Thomas, he was lying on the ground and was unresponsive.

¶ 5. Officer Rodgers attempted to gather information from several people at the scene; but, according to her, most of them were afraid to get involved. However, she did find two people who were willing to talk with her on condition of anonymity. Rodgers gave no testimony about what these two people had told her, and the only relevant exchange during her direct examination was as follows:

Prosecutor: And were you able to get cooperation from anyone? Would they talk to you?
Rodgers: Well, I had a couple of people to talk to me, but they wanted to remain anonymous.
Prosecutor: Well, during the course of your investigation that night, were you able to establish a suspect?
Rodgers: Yes.
Prosecutor: And who was that suspect?
Rodgers: Travis Keithley.

¶ 6. Rodgers testified that the only physical evidence recovered at the scene consisted of one spent .380 cartridge casing and two ink pens. None of these items was ever connected to the crime. Rodgers also gave testimony that confirmed Thomas’s account of his written statement given in the ICU.

¶ 7. Keithley did not testify or call any witnesses on his behalf. The jury found Keithley guilty of aggravated assault, and he was sentenced to fifteen years in custody, with thirteen years to serve and two years of supervised probation.

No apparent error stems from Rodgers’s testimony.

¶ 8. Keithley argues that Officer Rodgers’s testimony (quoted above) regarding the two anonymous people who talked to her at the scene was rank hearsay that violated Keithley’s constitutional right to confront his accusers. U.S. Const, amend. VI; Miss. Const, art. 3 § 26. Because there was no objection, reversal is unwarranted absent plain error. “To constitute plain error, the trial court must have deviated from a legal rule, the error must be plain, clear or obvious, and the error must have prejudiced the outcome of the trial.” Cox v. State, 793 So.2d 591, 599 (Miss.2001) (citing Grubb v. State, 584 So.2d 786, 789 (Miss.1991); Porter v. State, 749 So.2d 250, 260-61 (Miss.Ct.App.1999)).

¶ 9. We are unable to discern plain error resulting from Rodgers’s testimony. Contrary to Keithley’s characterization of the testimony, Rodgers did not testify that the two people who identified Keithley as the shooter were eyewitnesses. Moreover, she did not convey any statements or assertions made by the two anonymous people, either directly or indirectly, and she did not reveal the substance of her conversations with them. M.R.E. 801(a) (In the context of hearsay, “[a] ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person if it is intended by the person as an assertion.”); United States v. Meises, 645 F.Bd 5, 21-28 (1st Cir.2011) (holding that, under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1854, 158 L.Ed.2d 177 (2004), the Confrontation Clause is implicated if the substance of the out-of-court accusations is revealed).

¶ 10. Rodgers’s confirmation that Keithley had become a suspect “during the course of [her] investigation,” was immediately preceded by her statement that she “had a couple of people talk to [her].” On examination of this exchange out of context, one arguably could have suggested that the two anonymous persons had identified Keithley as the shooter. However, just before the testimony at issue, Rodgers had given a detailed account of her actions that night, and it is clear that her investigation involved much more than a conversation with these two people. Thus, examining her testimony as a whole, it is not apparent that the testimony at issue was hearsay or that the unnamed people could be classified as accusers. For these reasons, we can find no plain error arising from Rodgers’s testimony.

The verdict was supported by the evidence.

¶ 11. Keithley argues that he is entitled to an acquittal or a new trial, challenging both the sufficiency and the weight of the evidence. His arguments center around the alleged identifications made by the anonymous “witnesses,” the absence of any physical evidence implicating Keithley as the shooter, and an unsubstantiated and highly speculative claim that the victim’s testimony was unreliable and a result of bias.

¶ 12. Rodgers’s testimony about the two anonymous bystanders did not constitute an inadmissible identification, and, therefore, does not undermine the verdict. In addition, a criminal conviction does not require inculpatory physical evidence. See Moore v. State, 933 So.2d 910, 922-23 (Miss.2006) (burglary conviction not against the weight of the evidence where there was no physical evidence tying defendant to crime). Finally, any question regarding the credibility of a witness is wholly within the province of the jury. Moreover, Thomas’s identification of Keithley as the shooter was uncontradict-ed, as was Thomas’s account of the entire incident. As the sole judges of his credibility and believability, the jury was entitled to accept or reject his testimony. Blanchard v. State, 55 So.3d 1074, 1079 (Miss.2011) (citing Moore, 933 So.2d at 922)). Accordingly, we find no deficiencies in the evidence that would warrant a new trial or an acquittal.

The ineffective-assistance-of-counsel claim is dismissed without prejudice.

¶ 13. Keithley makes numerous allegations that his attorney’s performance was deficient. For example, he argues that his attorney: failed to object to Officer Rodgers’s testimony, put on no evidence in his client’s defense, did not pursue an alibi defense, made no objection to the relevance and introduction into evidence of the .380 cartridge casing and a fingerprint card, and failed to make adequate preparation for trial. Yet, these alleged deficiencies are not “based on facts fully apparent from the record,” and are more appropriate for post-conviction review. M.R.A.P. 22.

¶ 14. In Archer v. State, 986 So.2d 951, 955 (Miss.2008), this Court explained why ineffective-assistance-of-counsel claims are seldom capable of review on direct appeal:

Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings. This is because during direct appeals the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately. Wilcher v. State, 863 So.2d 776, 825 (Miss.2003). In such a case, the appropriate procedure is to deny relief, preserving the defendant’s right to argue the issue through a petition for post-conviction relief. Read v. State, 430 So.2d 832, 837 (Miss.1983).

¶ 15. It is clear that the claims raised by Keithley on this issue are not reviewable based on the record before us. He points to nothing in the record that supports his claim that his attorney failed adequately to prepare for trial. Nothing in the record indicates that there was evidence to support any particular defense, especially an alibi defense. Although Keithley says that his mother could have provided favorable testimony, nothing before us supports this assertion. As for the attorney’s failure to object to the cartridge casing and a fingerprint card, Keithley does not explain how this evidence was prejudicial, and it is not clear whether relevance would have been a viable objection.

¶ 16. Because these alleged deficiencies require proof that is not in the record on direct appeal, we find that, in accordance with Archer, 986 So.2d at 955, Keithley’s ineffeetive-assistance-of-counsel claims do not warrant reversal at this stage and are preserved should the defendant wish to raise these issues in post-conviction-relief proceedings.

Conclusion

¶ 17. We find no error requiring reversal. Officer Rodgers’s testimony was not inadmissible hearsay and did not violate Keithley’s right to confront his accusers. Moreover, the verdict was supported by the evidence, and any issues regarding the victim’s credibility were resolved by the jury. Finally, Keithley’s unsubstantiated claims that his trial counsel was deficient are dismissed without prejudice and are preserved for post-conviction relief consideration, should any be sought. Accordingly, Keithley’s conviction and sentence are affirmed.

¶ 18. CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THIRTEEN (13) YEARS TO SERVE AND TWO (2) YEARS OF SUPERVISED PROBATION, AFFIRMED.

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

      . Our opinion should not be read as blanket approval of lawyers' asking witnesses what they learned, or concluded, or did as a result of a conversation. Such testimony must be evaluated for its real purpose; and if the apparent purpose is to inform the jury of the content or import of an out-of-court statement, it should be treated as any other hearsay. See Swindle v. State, 502 So.2d 652, 657 (Miss. 1987) (conversation of informant generally inadmissible where part of State's development of proof on the merits, but not in other circumstances for other purposes); Meises, 645 F.3d at 21 (under the Sixth Amendment, "[i]t makes no difference that the government took care not to introduce [the declarant’s] ‘actual statements'.... [I]f what the jury hears is, in substance, an untested, out-of-court accusation against the defendant, particularly if the inculpatory statement is made to law enforcement authorities, the defendant’s Sixth Amendment right to confront the declarant is triggered.”).


author: CHANDLER, Justice,

text:
    LIBERTY MUTUAL INSURANCE COMPANY v. Richard SHOEMAKE.
    No. 2011-CT-00179-SCT.
    Supreme Court of Mississippi.
    May 2, 2013.

      Tara Strickland Clifford, Jackson, attorney for appellant.
    David C. Dunbar, Ridgeland, attorney for appellee.
   ON WRIT OF CERTIORARI

CHANDLER, Justice,

for the Court:

¶ 1. Ultimately, this ease concerns the proper procedure by which a workers’ compensation insurer may enforce a subro-gation claim arising under Mississippi Code Section 71-3-71. Richard Shoemake was injured in Alabama but received workers’ compensation benefits from Liberty Mutual Insurance Company under Mississippi law. He brought and settled a third-party action in Alabama state court and reimbursed Liberty Mutual only the amount it was entitled to under Alabama law. Liberty Mutual, which knew of but did not join or intervene in the Alabama lawsuit, then sued Shoemake in the Circuit Court of Newton County, seeking full reimbursement as allowed under Section 71-3-71. In granting Shoemake summary judgment, the circuit court held that Alabama law applied and further concluded that res judicata and Liberty Mutual’s failure to intervene in the Alabama action barred Liberty Mutual’s claim.

¶ 2. The Court of Appeals reversed, holding that Mississippi law governed the amount of Liberty Mutual’s subrogation claim and that Liberty Mutual was not required to intervene in the Alabama action to become entitled to reimbursement under Mississippi law. Because we find that Mississippi Code Section 71-3-71 requires a workers’ compensation insurer to join or intervene in a third-party action to become entitled to reimbursement, we reverse the judgment of the Court of Appeals and affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS BELOW

¶ 3. Richard Shoemake is a Mississippi resident who was employed by Simmons Wrecker Service, a Mississippi company. On September 18, 2003, while in the course and scope of his employment with Simmons, Shoemake was injured when a train collided with his truck in Macon County, Alabama. Shoemake filed a workers’ compensation claim under Mississippi law and received $132,402.65 in benefits from Simmons’s insurance carrier, Liberty Mutual Insurance Company. Shoemake then brought a third-party tort action against the train operator in Alabama state court.

¶4. Liberty Mutual had notice of the action at all relevant times and was periodically advised of the status of the litigation and mediation by Shoemake’s Alabama counsel but made no attempt to join in, intervene in, or in any way participate in the Alabama action. The action was settled without trial on June 27, 2007, for $315,000. A final order dismissing the action with prejudice was entered by the Alabama court on January 16, 2008. Out of the settlement funds, Shoemake remitted $82,226.84 to Liberty Mutual on December 12, 2008. Liberty Mutual subsequently sued Shoemake in the Circuit Court of Newton County on April 14, 2009, to recover an additional $50,175.81.

¶ 5. Liberty Mutual claimed that, under Mississippi workers’ compensation law, it was entitled to recover all $132,402.65 in compensation benefits it had paid to Shoe-make, without sharing the costs of collection. Shoemake sought summary judgment, arguing that Alabama’s “common funds” doctrine applied to the Alabama tort action, and as such, Liberty Mutual was required to pay 35% of his attorney fees and a proportional share of other collection costs. He claimed that, after these had been deducted, Liberty Mutual was fully reimbursed. Moreover, he argued that the dismissal of the Alabama action with prejudice precluded Liberty Mutual from relitigating the choice-of-law issue and the amount of subrogation it was owed. The circuit court granted summary judgment for Shoemake, finding that Alabama law governed, that Liberty Mutual’s claims had been settled by the Alabama action and were barred by res judicata, and that Liberty Mutual had waived its right to have its subrogation claim heard by failing to intervene in the Alabama action.

¶ 6. Liberty Mutual successfully appealed to the Mississippi Court of Appeals, which held that, under the “significant relationship” test, Mississippi law governed the subrogation claim. Liberty Mut. Ins. Co. v. Shoemake, 112 So.3d 1 (Miss.Ct. App.2012). Further, it held that Section 71-3-71 did not require Liberty Mutual to intervene in the third-party action to pursue subrogation. We agree that, as between Liberty Mutual and Shoemake, Mississippi law defines and governs Liberty Mutual’s subrogation claim. However, because Mississippi Code Section 71-3-71 requires an employer or insurer to intervene in a third-party action in order to become entitled to reimbursement, we reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court.

STANDARD OF REVIEW

¶ 7. We review the circuit court’s grant or denial of summary judgment under a de novo standard. Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1205 (Miss.1998). Further, “whether the circuit court had proper jurisdiction to hear a particular matter is a question of law,” which also requires a de novo standard of review. Id. at 1204-05.

DISCUSSION

¶ 8. We begin by noting the anomalous situation in this case. Shoemake’s receipt of benefits, his retained right to sue a responsible third party, and Liberty Mutual’s subrogation claim all arise out of Mississippi’s workers’ compensation statute. However, once Shoemake sued in Alabama, the choice-of-law question would have been determined by an Alabama court, had Liberty Mutual chosen to join or intervene in that action. We would not have had any opportunity to determine what law applied, had a separate Mississippi state lawsuit not been filed. We find no fault with the Court of Appeals’ choice-of-law analysis as it applies to the Mississippi action. In a Mississippi action, where a Mississippi resident employed by a Mississippi company elects to receive compensation benefits under Mississippi law, regardless of whether the injury occurred in another state, Mississippi’s workers’ compensation law governs the statutory subro-gation rights of an employer or insurer who has paid benefits to that worker.

¶ 9. However, this case can be decided without reaching a putative conflict-of-law issue. Today’s action, which seeks the enforcement of Liberty Mutual’s subrogation claim, arose solely under Mississippi law. The procedure by which an employer or insurer who has paid compensation benefits can be reimbursed out of damages paid by a third party is set out in Mississippi Code Section 71-3-71, and the proper interpretation of that provision resolves this dispute. See Miss.Code Ann. § 71-3-71 (Rev.2011). The real question before us then is whether a statutory subrogation claim under Section 71-3-71 may be brought in a separate action after the conclusion of a third-party action in which the insurer had notice but did not join or intervene.

1. Does Section 71-3-71 require an employer or insurer to join or intervene to become entitled to reimbursement?

¶ 10. First, we must determine whether Liberty Mutual should have intervened to enforce its subrogation claim. The subrogation rights of an employer or insurer who has paid workers’ compensation benefits “do not spring from a contractual agreement ..., but rather are conferred by Section 71-3-71.” Federated Mut. Ins. Co. v. McNeal, 943 So.2d 658, 661 (Miss.2006). Because the right to reimbursement “exists by virtue of statute and must rise or fall strictly as a matter of statutory interpretation,” we must first look to the plain language of Section 71-3-71 to determine whether Liberty Mutual is entitled to reimbursement without intervention. Id. (quoting Mississippi Food & Fuel Workers’ Comp. Trust v. Tackett, 778 So.2d 136, 143 (Miss.Ct.App.2000)).

¶ 11. Section 71-3-71 permits an injured worker who receives compensation benefits from his employer or its insurer to pursue an action against a third party and gives the employer or insurer the right to either join or intervene in such an action. In turn, the statute allows the employer or insurer to be fully reimbursed for all compensation paid out of the worker’s net recovery. However, the language of Section 71-3-71 clearly conditions the employer or insurer’s right to reimbursement upon the employer or insurer’s join-der or intervention in the third-party action:

The acceptance of compensation benefits from or the making of a claim for compensation against an employer ... shall not affect the right of the employee or his dependents to sue any other party at law for such injury or death, but the employer or his insurer shall be entitled to reasonable notice and opportunity to join in any such action or may intervene therein. If such employer or insurer join in such action, they shall be entitled to repayment of the amount paid by them as compensation and medical expenses from the net proceeds of such action (after deducting the reasonable costs of collection) as hereinafter provided.

Miss.Code Ann. § 71-3-71 (Rev.2011) (emphasis added). The phrase “if such employer or insurer join” means that the employer or insurer is entitled to repayment under the statute only if it first joins or intervenes in the action. Further, where the following paragraph states that the employee’s net recovery “shall be used to discharge the legal liability of the employer or insurer,” it is simply elaborating on the earlier phrase “as hereinafter provided” and applies only where the employer or insurer joins or intervenes in the action. Miss.Code Ann. § 71-3-71 (Rev. 2011).

¶ 12. In spite of the clear language of Section 71-3-71, Liberty Mutual argues that this Court has never required a workers’ compensation insurer to intervene in a third-party action to enforce its statutory right of reimbursement. Following language in Federated Mutual Insurance Company v. McNeal, 943 So.2d 658 (Miss. 2006), the Court of Appeals drew the same conclusion. Importantly, the McNeal Court did not have before it the question of whether intervention was a prerequisite to subrogation. Moreover, neither the cases cited by McNeal nor Liberty Mutual support Liberty Mutual’s claim.

¶ 13. As in this case, McNeal involved an injured employee who settled a third-party action after receiving compensation benefits. Id. at 659. The insurer in that case, Federated Mutual, failed to intervene formally according to Rule 24 of the Mississippi Rules of Civil Procedure. Id. at 659, 662. Instead, after the case was settled, but before the settlement funds were disbursed, Federated filed a motion to compel reimbursement of all compensation paid under Section 71-3-71. Id. at 659. Federated appealed the denial of that motion to this Court. Id. at 660. The McNeal Court then made the following statement which Liberty Mutual and the Court of Appeals now seize upon:

Federated pointed out in oral argument that our case law has not required a workers’ compensation insurer to intervene or join in an employee’s third-party suit in order to assert its statutory lien. Indeed, Federated is correct, as this Court has never required the insurance carrier to join or intervene in an employee’s third-party litigation to validate or enforce its subrogated claim to the proceeds recovered in that litigation. See, e.g., Sneed v. Verdun, 611 So.2d 947, 948 (Miss.1992); Kidwell v. Gulf, Mobile & Ohio R.R., 251 Miss. 152, 168 So.2d 735, 736 (1964).

McNeal, 943 So.2d at 662.

¶ 14. However, the issue McNeal resolved was “not whether Federated is entitled to subrogation without intervention, but rather whether Federated may appeal the circuit court’s decision without intervention.” Id. We went on to find that “the circuit court and all parties to the litigation accepted Federated as having intervened in the proceedings,” and that “[although the formal procedural requirements of Rule 24 were not met, no objection was raised to either Federated’s participation in the trial court or its pursuit of this appeal.” Id. at 663. Finally, in spite of our lenient application of Rule 24, “we stressed] that the better practice for insurers who anticipate the possible need for judicial assistance in enforcing their liens is to file a formal intervention in accordance with the provisions of Rule 24 of the Mississippi Rules of Civil Procedure.” Id.

¶ 15. Because the McNeal Court accepted Federated’s misnomed claim in the third-party action, it did not determine whether intervention is a prerequisite to subrogation. As such, the McNeal decision itself is an inadequate basis for a rule that subrogation does not require intervention. While McNeal cited Sneed v. Verdun, 611 So.2d 947, 948 (Miss.1992), and Kidwell v. Gulf, Mobile & Ohio Railroad Co., 251 Miss. 152, 168 So.2d 735 (1964), neither case supports a conclusion that Section 71-3-71 and our prior decisions do not require an employer or insurer to join or intervene to become entitled to reimbursement.

¶ 16. In Sneed, the circuit court approved a settlement between the injured worker and third party, but retained jurisdiction to allow the employer notice and the opportunity to intervene before final disbursement of the funds. Sneed, 611 So.2d at 947-48. The employer did in fact intervene, and we affirmed the circuit court’s decision that intervention at that point was timely. Id. at 948. We did not, however, state that intervention was unnecessary. Indeed, the allowance of an eleventh-hour intervention suggests that intervention was necessary for the employer to be reimbursed.

¶ 17. In Kidwell, the insurer intervened in the employee’s third-party action prior to trial. Kidwell, 168 So.2d at 736. The issue we decided was whether the insurer was entitled to have its attorney fees incurred in the intervention reimbursed out of the employee’s recovery. Id. at 736. We emphasized that intervention “assured the intervenor, by statute, his right of reimbursement for monies expended as compensation and medical expenses or of the discharge of his legal liability therefor in the event judgment was obtained.” Id. As such, the insurer had a choice either to pursue reimbursement and bear the costs of intervention, or forgo reimbursement altogether by not intervening:

The intervention is not required by law, but is optional on the part of the carrier. It could intervene if the prospective judgment appeared great enough to reimburse it for monies expended in accordance with section 6998-36 [now Section 71-3-71], or it might decline to do so as discretion might dictate. The choice of intervention is that of the carrier and is not mandatory.

Id. Rather than holding that intervention is not required for reimbursement, Kidwell supports our interpretation of Section 71-3-71 that an employer or insurer forgoes reimbursement if it exercises its discretion not to intervene.

¶ 18. Also at issue in McNeal was whether an employer or insurer was entitled to reimbursement if the injured employee was not “made whole” by the third-party recovery. McNeal, 943 So.2d at 659-60. We reiterated that Section 71-3-71 “unambiguously provides that, after deducting the costs of collection and attorney’s fees, any recovery from a third party ... must be applied first to repay the workers’ compensation insurer” and thus, the “made-whole” doctrine did not apply to the statute. Id. at 660. Again, the cases MeNeal cites do not suggest that reimbursement is mandated where the employer or carrier does not intervene. Because the Court of Appeals used this language to support its holding that intervention is unnecessary, we simply point out that the statute also unambiguously provides that an employer or insurer must first join or intervene to be entitled to reimbursement. Only after joinder or intervention does the statute mandate that an employer or insurer who has paid compensation benefits must be reimbursed from any third-party recovery.

¶ 19. In addition to the cases cited in McNeal, Liberty Mutual relies on Powe v. Jackson, 286 Miss. 11, 109 So.2d 546 (1959). In Powe, an injured worker settled his third-party claims before filing suit and without the approval of the Workers’ Compensation Commission. Id. at 550. While the employer knew of the settlement negotiations, there was no action in which it could have joined or intervened. Id. at 549-550. We held only that the employer did not waive its right to reimbursement by not intervening in a settlement that took place before an action was ever filed and that was not approved by the Commission. Id. at 550. We explained that Commission approval of a settlement without suit serves “to preserve the subrogation and indemnity rights of the employer or insurer.” Id. Because the unapproved settlement prevented the insurer from having the opportunity to join, we held that the settlement was invalid and void. Id.

¶ 20. Liberty Mutual also cites McClus-key v. Thompson, in which the employer and its insurer who were wrongly named as defendants in the third-party action sought dismissal “without prejudice to their rights to later intervene as plaintiffs under section 71-3-71-” McCluskey, 863 So.2d 256, 257-58 (Miss.1978). However, the trial court erroneously ordered that they join in the action within thirty days or have their subrogation claim barred. Id. at 258. We simply reiterated that intervention is optional and that the statute does not require intervention within a specified time period. Id. at 265. We did not decide, however, that an employer can still be reimbursed if it exercises its option not to intervene.

¶ 21. To the contrary, we have on multiple occasions construed Section 71-3-71 according to its plain language and paraphrased it as requiring intervention before an insurer may be reimbursed. In Index Drilling Co. v. Williams, we explained that an employee may recover damages from a third-party tortfeasor even if he or she first accepts compensation benefits, and that “if the employer or insurer join in such action, they are entitled to be reimbursed for compensation benefits paid by them from the net proceeds of the suit.” Index Drilling Co. v. Williams, 242 Miss. 775, 784, 137 So.2d 525, 528 (1962) (emphasis added). In Richardson v. United States Fidelity & Guaranty Co., we described the distribution scheme contained in the second paragraph of Section 71-3-71 as being dependent upon the employer’s or insurer’s intervention in the suit:

[W]hen a compensation beneficiary brings an action for his injuries against a third-party wrongdoer, and if such employer or insurer join in such action, the net proceeds of such action shall be applied as follows: (1) “The reasonable cost of collection,” and (2) “the remainder, or so much thereof as is necessary, shall be used to discharge the legal liability of the employer or insurer,” and (3) “any excess shall belong to the injured employee or his dependents.”

Richardson v. U.S. Fidelity & Guaranty Co., 233 Miss. 375, 381, 102 So.2d 368, 370 (1958) (emphasis added).

¶ 22. Finally, in Merchants Co. v. Hutchinson, we clearly stated that the right of reimbursement is premised upon a single requirement:

All that was necessary for the interve-nor to do was to let the court know how much had been expended by the insurance carrier, either by a petition to intervene or by a petition to join in the cause of action; thenceforth, Mississippi Law mandatorily provided for the distribution of any verdict rendered.

199 So.2d 813, 820 (Miss.1967) (emphasis added). Other cases indicate that an employer or insurer who is denied intervention will be unable to enforce its statutory right of subrogation. See Miss. Ins. Guar. Ass’n v. Brewer, 922 So.2d 807, 813 (Miss.Ct.App.2005) (holding that denial of a motion to intervene infringed on employer and insurer’s “statutory right of subrogation for monies paid to” claimant); Miss. Food & Fuel Workers’ Comp. Trust v. Tackett, 778 So.2d 136, 142-43 (Miss.Ct. App.2000) (explaining that intervention is the procedural means by which the subro-gation right is protected). See also McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1072, 1074 (5th Cir.1970) (allowing post-judgment intervention because insurer “sought to intervene for the limited purpose of protecting its subrogation interest in a fund which had not yet been distributed” and stating that “denial of the motion to intervene [would] harm [the insurer] by frustrating its efforts to satisfy its subro-gation interest”).

¶ 23. In addition to the plain language of Section 71-3-71, the overwhelming weight of our caselaw supports our conclusion that Liberty Mutual was required to join or intervene in Shoemake’s Alabama action to enforce its statutory subrogation claim. We note that nothing prohibits an employer or insurer from entering a contractual subrogation agreement with the employee whereby joinder or intervention would be unnecessary. However, we emphasize that an employer or insurer cannot simply sit out a third-party action by the employee and later, after judgment has been entered and all funds dispersed, sue to enforce its statutory subrogation claim.

2. The circuit court was not the proper forum for Liberty Mutual’s subrogation claim.

¶ 24. Finally, we stress that the present Mississippi state-court action is contrary to the intent of Section 71-3-71 and should have been dismissed for lack of jurisdiction even if Liberty Mutual had intervened in the Alabama action. Section 71-8-71 effectively funnels all claims of the employer, insurer, or employee against a third party into one action, thereby preventing the need for multiple lawsuits, as have taken place in this case. As discussed above, if an employer or insurer does not join or intervene in an employee’s third-party action, its subrogation claim is waived. As an alternative to the injured worker bringing suit, Section 71-3-71 allows an employer or insurer who has paid compensation benefits to sue the third party directly. Miss.Code Ann. § 71-3-71 (Rev.2011). However, if the employer or insurer gives the employee notice and an opportunity to be represented in the action, “all claims of such compensation beneficiary shall be determined in such action, as well as the claim of the employer or insurer.” Miss.Code Ann. § 71-3-71 (Rev. 2011). The goal of the statutory scheme is for all parties who are entitled to recovery in the third-party action and who have been given notice to have their claims settled in one action, whether the employee, the employer, or the insurer brings the suit.

¶ 25. We affirmed this policy in Owen & Galloway v. Travelers Insurance Co., 499 So.2d 776 (Miss.1986). In that ease, the attorneys for the employee — who prevailed in his third-party action in federal court and made reimbursement under Section 71-3-71 — filed a separate action in chancery court against the intervening insurer, seeking an equitable division of the attorney fees and costs from the first action. Id. at 777-78. We looked to language in Section 71-3-71 providing that collection costs (which include attorney fees) are to be “approved and allowed by the court in which such action is pending,” and reasoned that “[w]hen a judgment is rendered in a. third party suit and all interested parties are properly before the court, the rights of all parties are determined by the court.” Id. at 778 (quoting Vardaman S. Dunn, Mississippi Workmen’s Compensation, § 235 (3d ed.1982)). Because we found “the intention of the Legislature eminently clear that the court in which the action was pending is the proper forum for issues concerning the distribution of settlement proceeds,” we held that the chancery court lacked jurisdiction over the second action. Id-at 779.

¶ 26. Procedurally, Liberty Mutual should have intervened in the Alabama action and then tried to persuade the Alabama court to apply Mississippi law to its subrogation claim. This would have been a difficult burden, as Alabama consistently has applied the lex loci delicti rule in third-party tort claims brought by an out-of-state worker who had availed himself of another state’s workers’ compensation statute. Ne. Utils., Inc. v. Pittman Trucking Co., 595 So.2d 1351, 1353 (Ala.1992); Powell v. Sappington, 495 So.2d 569, 570 (Ala.1986). Regardless, Liberty Mutual waived its right seek to have Mississippi law applied to its claim by choosing not to join or intervene in the Alabama action. It cannot now, having failed to follow the procedure set out in Section 71-3-71, enforce in a second lawsuit a subrogation claim which arose only under that section.

CONCLUSION

¶ 27. Liberty Mutual waived its right to judicial enforcement of its statutory subro-gation claim by failing to join or intervene in the Alabama action. This opinion should not be construed as a retreat from our longstanding policy that an injured worker should not receive a double recovery under our workers’ compensation statute. See Sawyer v. Dependents of Head, 510 So.2d 472, 477-78 (Miss.1987). Instead, because Liberty Mutual slept on its rights while Shoemake’s third-party action was adjudicated in Alabama, it forewent its rights. Accordingly, Liberty Mutual is not entitled to recover additional funds from Shoemake. We reverse the Court of Appeals’ judgment and reinstate and affirm the judgment of the Circuit Court.

¶ 28. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY IS REINSTATED AND AFFIRMED.

WALLER, CJ., RANDOLPH, P.J., KITCHENS, PIERCE, KING AND COLEMAN, JJ., CONCUR. LAMAR, J„ CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. DICKINSON, P.J., NOT PARTICIPATING.

      . The phrase "if such employer or insurer join in such action" can be fairly read to mean "join or intervene in such action.” The preceding sentence unambiguously gives an employer or insurer the right either to join or intervene in the third-party suit. The Legislature's choice of the word “join” to describe the employer or carrier’s participation in the suit should not be construed strictly as meaning that joinder alone, and not intervention as well, is the only means by which an employer or carrier may become entitled to reimbursement. We recognize that joinder and intervention are distinct concepts governed by different procedural rules, although for our purposes they may be used interchangeably in the cases discussed below. However, the plain language of Section 71-3-71— which pre-dates the adoption of our rules of civil procedure — allows either joinder or intervention, and we affirm that either will suffice to protect an insurer's or employer’s right to reimbursement.

      . See Miss. Power Co. v. Jones, 369 So.2d 1381, 1387-88 (Miss.1979) (holding that insurer could be reimbursed only out of punitive damages recovered by employee); Litton Sys., Inc. v. Murphree, 301 So.2d 850, 852-53 (Miss.1974) (holding that it was error for the trial court to deny intervention and also that Section 71-3-71 unambiguously allows for reimbursement from wrongful-death beneficiaries); Merchants Co. v. Hutchinson, 199 So.2d 813, 820 (Miss.1967) (holding that, because workers’ compensation statute was unambiguous, it was unnecessary and erroneous to allow intervening insurer to introduce prejudicial evidence related to its subrogation claim).

      . Our cases liberally have allowed intervention at any point before the final distribution of funds to prevent a double recovery for the injured worker and ensure that an employer or insurer who has paid compensation will be fully reimbursed. See Sneed v. Verdun, 611 So.2d 947, 948 (Miss.1992); Miss. Food & Fuel Workers’ Comp. Trust v. Tackett, 778 So.2d 136, 142 (Miss.Ct.App.2000). See also McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1074 (5th Cir.1970).

      . The only scenario under which the statute might permit multiple suits is where the party bringing suit has failed to give to the other party the statutorily required notice and opportunity to join. This situation is not before us in this case, however, and does not change the underlying objective of the statute for all claims to be heard together expeditiously and resolved in a single action.


author: GRIFFIS, P.J.,

text:
    Charlie BLOUNT a/k/a Charlie Blunt a/k/a Charlie Blout, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00906-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2012.
    Rehearing Denied Feb. 5, 2013.
    Certiorari Denied May 2, 2013.

      Leslie S. Lee, Aafram Yaphet Sellers, Jackson, Justin Taylor Cook, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Charlie Blount was convicted of motor-vehicle theft under Mississippi Code Annotated section 97-17-42 (Supp.2011). Blount was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev.2007). On appeal, Blount argues: (1) the circuit court erred in denying his proposed lesser-offense trespass jury instruction; (2) the circuit court improperly sentenced him as a habitual offender under section 99-19-83; (3) the circuit court erred in denying his motion for a judgment notwithstanding the verdict because the State did not present sufficient evidence; and (4) the verdict was against the overwhelming weight of the evidence. We find no error and affirm.

FACTS

¶ 2. On May 26, 2010, Jackson Police Department Officer Shiameka Freemen investigated a call about an auto theft on Mill Street in Jackson, Mississippi. When Officer Freemen arrived to investigate, she saw a Canadian National Railroad (CN) truck fitting the stolen vehicle’s description. It was parked at a house near the scene of the reported theft. While at the scene, Blount approached Officer Freemen. Officer Freemen testified that Blount asked her why she was touching his truck. Officer Freemen then placed Blount under arrest.

¶ 3. Brian Tripp, a CN employee, was working that night. Tripp testified that he was using the CN truck near the railroad tracks. Tripp was conducting a safety inspection on the railroad track. Tripp had exited the truck to “blue light” a railroad track line. “Blue lighting” means to temporarily suspend traffic on the line. After he exited the CN truck, Tripp saw Blount enter the driver’s seat. Tripp’s co-worker, John Downing, was in the passenger seat. Tripp and Downing were wearing CN security shirts.

¶ 4. Tripp testified that he told Blount to get out of the truck. Blount was belligerent. By this time, Downing had exited the passenger-side of the truck. Tripp testified that he saw Blount reach into his pocket and thought that Blount had a weapon. Tripp fled the area of the truck and ran to a nearby bridge. He then radioed the yardmaster to report the incident. Later, Tripp picked Blount out of a six-man photographic line-up.

¶ 5. Downing testified that he had tried to persuade Blount to get out of the truck. However, Blount refused. According to Downing, Blount stated that he was “taking the [expletive] truck” and claimed he “own[ed] the [expletive] railroad.” Downing also testified to seeing Blount reach into his pocket. Downing stated he saw Blount drive the truck down Mill Street and stop the truck near a house. Downing also picked Blount out of a six-man photographic line-up.

¶ 6. Jackson Police Department Detective Kenneth West interviewed Blount two days after his arrest. Blount was given his Miranda rights, and he waived them. Blount told Detective West that the truck was parked near his house, that the motor to the truck was running, and that the lights were on. Blount stated he saw someone in the truck and saw someone exit the truck. At that point, Blount said he got in the truck and moved the truck about one-hundred feet.

¶ 7. Blount admitted to Detective West that he did not have permission to move the truck. Blount stated that he told one of the men at the scene that he moved the truck because he thought someone was going to steal something off the back of the truck. Blount denied threatening anyone at the time he moved the truck.

¶ 8. Following a jury trial, Blount was convicted of motor-vehicle theft and was sentenced as a habitual offender to life in prison without eligibility for parole or probation. The circuit court denied Blount’s post-trial motions, and Blount now appeals.

ANALYSIS

1. Whether the circuit court erred in refusing Blount’s jury instruction for a lesser-included offense of trespass.

¶ 9. Where a defendant claims “he was entitled to a lesser-included[-]offense instruction, we conduct [a] de novo review, as this is a question of law.” Downs v. State, 962 So.2d 1255, 1258 (¶ 10) (Miss.2007). “[T]he instructions actually given must be read as a whole.” Myles v. State, 854 So.2d 502, 506 (¶ 12) (Miss.Ct. App.2003) (quoting Tyler v. State, 784 So.2d 972, 974 (¶ 6) (Miss.CtApp.2001)). There will be no reversible error if the instructions read as a whole “fairly announce the law of the case and create no injustice.” Id. A lesser-ineluded-offense instruction should be given only “where a reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable doubt.” Id. Furthermore, in Odom v. State, 767 So.2d 242, 246 (¶ 11) (Miss.Ct.App.2000), this Court stated that:

[A] lesser-included-offense instruction should be given unless the trial judge determines, by looking at the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser-included[ joffense, and ultimately not guilty of at least one element of the principal charge. Whether the lesser-included-offense instruction is allowed also turns on whether there is an evidentiary basis for it. There must be some evidence to support the lesser-included[ joffense.

(internal citations omitted).

¶ 10. Mississippi Code Annotated section 99-19-5(1) (Rev.2007) provides:

On an indictment for any offense the jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense, or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment, whether the same be a felony or misdemeanor, without any additional count in the indictment for that purpose.

¶ 11. Therefore, in order to grant a lesser-included-offense jury instruction, the more serious offense must include all the elements of the lesser offense, meaning it is impossible to commit the greater without also committing the lesser. Hailey v. State, 537 So.2d 411, 415 (Miss.1988).

¶ 12. Section 97-17-42(1), the definition of motor-vehicle theft, reads:

Any person who shall, willfully and without authority, take possession of or take away a motor vehicle of any value belonging to another, with intent to either permanently or temporarily convert it or to permanently or temporarily deprive the owner of possession or ownership, and any person who knowingly shall aid and abet in the taking possession or taking away of the motor vehicle, shall be guilty of a felony and shall be punished by commitment to the Department of Corrections for not more than ten (10) years.

¶ 18. In Richmond v. State, 751 So.2d 1038, 1046-47 (¶23) (Miss.1999) (citing Deal v. State, 589 So.2d 1257, 1260 (Miss. 1991)), the supreme court rejected the defendant’s argument that he was entitled to a lesser-included-offense jury instruction on trespass in a case involving a motor-vehicle theft. The supreme court concluded that there was no evidence that would have led a reasonable juror to believe that the defendant was just borrowing the vehicle. Id. at 1047 (¶ 24).

¶ 14. The facts here are similar. There were facts presented to establish that Blount claimed ownership of the CN truck. In fact, the men from whom Blount took the truck were both wearing hard hats, shirts with the CN logo (the same logo that was on the truck), bright green reflective vests, tool belts, and safety glasses. Blount admitted to police that he did not have permission to enter or move the truck. Further, Blount asked Officer Freeman why she was touching “his truck.”

¶ 15. The refused instruction on trespass stated that trespass is “wilfully and maliciously entering another’s real or personal property....” However, Blount did not just enter the CN truck. He physically removed the truck from the control of the CN employees and drove it away. He intimidated the employees with cursing, belligerence, and threatening gestures, such as reaching into his pocket as if he were going to draw a gun. When confronted by police, he claimed the CN truck was his. The fact that Blount claimed the truck was his and took it from men who were clearly CN employees simply does not support Blount’s theory that he was just moving the truck because the persons driving it were unfamiliar to him.

¶ 16. Jury instructions should be given only when there is evidence to support them. The evidence discussed above did not point to trespass. There was no evi-dentiary basis for a lesser-ineluded-offense instruction on trespass here. “A lesser-ineluded-offense instruction is appropriate only when there is an evidentiary basis for it.” Myles, 854 So.2d at 507 (¶ 17). The State presented strong evidence of motor-vehicle theft. A reasonable juror would not have been led to conclude that Blount was only guilty of trespass. To have instructed the jury on trespass would have been “based purely on speculation or surmise.” Wilson v. State, 639 So.2d 1326, 1329 (Miss.1994).

¶ 17. Taking the evidence in the light most favorable to Blount, no reasonable jury could find Blount guilty of only trespass. The circuit court correctly refused to instruct the jury on trespass, as requested by Blount. Therefore, this issue has no merit.

2. Whether the circuit court improperly sentenced, Blount as a habitual offender.

¶ 18. Mississippi Code Annotated section 99-19-83 (Rev.2007) provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

¶ 19. The propriety of Blount’s life sentence turns on his conviction for simple assault on a law-enforcement officer. Blount argues that his conviction for simple assault does not constitute a crime of violence. Additionally, he argues that the state failed to provide sufficient evidence that he served more than a year for the offenses.

¶ 20. The requirements to impose a sentence as a habitual offender are “that the accused be properly indicted as a[ ] habitual offender, that the prosecution prove the prior offenses by competent evidence, and that the defendant be given a reasonable opportunity to challenge the prosecution’s proof.” Keyes v. State, 549 So.2d 949, 951 (Miss.1989) (internal citations omitted); see also Frazier v. State, 907 So.2d 985, 991 (¶14) (Miss.Ct.App. 2005); Crouch v. State, 826 So.2d 772, 776 (¶ 4) (Miss.Ct.App.2002). Enhanced sentences “are based not merely on [a defendant’s] most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced to other crimes.” Huntley v. State, 524 So.2d 572, 575 (Miss.1988) (quoting Rummel v. Estelle, 445 U.S. 263, 284, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980)).

¶ 21. Simple assault of a police officer has been deemed a crime of violence. Cook v. State, 910 So.2d 745, 746 (¶ 3) (Miss.App.Ct.2005). Blount’s indictment for simple assault stated that he attempted to cause bodily injury to a law-enforcement officer, Jim Jones, who was acting within his scope of duty and office, by pointing a pistol at him. Blount’s signed plea petition stated “simple assault on LEO: purposefully, unlawfully, and knowingly attempt to put a police officer acting [within] the scope of his office in serious bodily harm.” He also admitted, “I pointed a gun at a police officer.” The sentencing orders entered on March 1, 1993, stated: “simple assault ... 5 years”; “acc after fact grand larceny ... 5 years”; and “rec stolen goods ... 5 years.” The sentencing orders stated that each separate sentence would run concurrently.

¶ 22. Blount’s five-year sentence for simple assault is consistent with a sentence prescribed for simple assault of a law-enforcement officer under Mississippi Code Annotated section 97-3-7(1) (Supp. 2011). Simple assault upon certain categories of persons carries a maximum sentence of six months. Id. Simple assault upon other categories of persons, including law-enforcement officers, carries a maximum sentence of five years. Id. The evidence discussed above was sufficient to find that Blount was convicted of simple assault on a law-enforcement officer, not just simple assault. Therefore, Blount’s argument that his sentence is improper because he was not convicted of a crime of violence is without merit.

¶ 23. The State presented evidence of Blount’s prior convictions and sentences by providing certified copies of the indictment, plea petition, and sentencing orders. Also, the office supervisor at the Central Mississippi Correctional Facility of the Mississippi Department of Corrections testified that Blount served two years and two days for the simple-assault charge along with his other separate concurrent convictions. He also served three years for a cocaine conviction. However, it is not necessary to show that a defendant sen>ed more than one year. Frazier, 907 So.2d at 991 (¶ 15). “[P]roof of habitual status is sufficient where the State demonstrates that a defendant was sentenced to terms in excess of one year.” Id. (emphasis added). Blount served over one year and was sentenced over one year. Therefore, Blount’s argument that his sentence is improper because there was not sufficient evidence of him serving over one year is without merit.

¶ 24. The circuit court properly sentenced Blount as a habitual offender under section 99-19-83. Therefore, this issue has no merit.

3. Whether the circuit court erred in denying Blount’s motion for a judgment notwithstanding the verdict because the State did not present sufficient evidence.

¶ 25. The standard of review for sufficiency of evidence is “whether, after reviewing 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 v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted).

¶ 26. The elements of motor-vehicle theft are: “willfully and without authority, take possession of or take away a motor vehicle of any value belonging to another, with intent to either permanently or temporarily convert it or to permanently or temporarily deprive the owner of possession or ownership.... ” Miss.Code Ann. § 97-17-42(1) (Supp.2011).

¶ 27. The evidence was sufficient to support Blount’s conviction. Blount told Downing that he was “taking the [expletive] truck.” When Officer Freeman approached Blount, he asked why she was touching “his truck.” This demonstrated that he intended to permanently or temporarily deprive CN of the truck. According to the statute’s language, it does not matter that he only took the truck approximately one-hundred feet. He happened to reside that approximate distance from the site of the theft. Blount admitted to Detective West that he did not have permission to move the truck. He willfully, unlawfully, and feloniously took the truck without authority.

¶ 28. The truck had the CN logo on it, as demonstrated by photos admitted into evidence. Downing and Tripp had bright reflective clothes on and hard hats with light attachments. They were wearing shirts with the CN security logo. These shirts were admitted into evidence. Considering the evidence in the light most favorable to the State, we find that a rational juror could have found the essential elements of motor-vehicle theft beyond a reasonable doubt. Therefore, this issue has no merit.

A Whether the verdict was against the overwhelming weight of the evidence.

¶ 29. In reviewing “the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). “[T]he evidence should be weighed in the light most favorable to the verdict.” Id. The testimony detailed above establishes Blount drove the CN vehicle off without the authority to do so. Blount intended it to be his truck. The verdict was not against the overwhelming weight of the evidence. Viewing the evidence in a light most favorable to the verdict, upholding the verdict would not be an unconscionable injustice. Therefore, this issue has no merit.

¶ 30. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF MOTOR-VEHICLE THEFT, AND SENTENCE AS A HABITUAL OFFENDER OF LIFE 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 HINDS COUNTY.

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