author: RANDOLPH, Presiding Justice,

text:
    EQUIFAX, INC. and Equifax Credit Information Services, Inc. v. MISSISSIPPI DEPARTMENT OF REVENUE f/k/a Mississippi State Tax Commission.
    No. 2010-CT-01857-SCT.
    Supreme Court of Mississippi.
    June 20, 2013.
    Rehearing Denied Nov. 21, 2013.

      Louis G. Fuller, Katie Lofton Wallace, Jackson, Timothy J. Peaden, Mary T. Benton, attorneys for appellants.
    Gary Wood Stringer, James L. Powell, Jackson, attorneys for appellee.
   ON WRIT OF CERTIORARI

RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Before the Court on certiorari review is an income-tax assessment by the Mississippi State Tax Commission (“the Commission”) against Equifax, Inc., and Equifax Credit Information Services, Inc. (collectively “Equifax”). Using the standard apportionment method prescribed by Commission regulation, Equifax computed its Mississippi taxable income as zero. The Commission then audited Equifax and determined that the standard apportionment method did not fairly reflect Equifax’s business in Mississippi. The Commission employed an alternative apportionment method, under which Equi-fax’s income from services provided to customers located in Mississippi was apportioned to Mississippi, and it issued assessments against Equifax.

¶ 2. After Equifax exhausted its administrative remedies, it petitioned the Hinds County Chancery Court for relief, and it affirmed the Commission’s decision. The Court of Appeals reversed the judgment of the chancery court on standard-of-review and burden-of-proof grounds and found all remaining issues moot. Equifax, Inc. v. Miss. Dep’t of Revenue, — So.3d - (Miss.Ct.App.2012). On writ of certiorari, we hold that the Hinds County Chancery Court did not commit reversible error; that the use of an alternative apportionment method for Equifax was not a promulgation of a rule in violation of the Mississippi Administrative Procedures Act; and that the Commission did not abuse its discretion by imposing penalties against Equifax, as provided for in Mississippi Code Section 27-13-25(3). Accordingly, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Hinds County Chancery Court.

FACTS AND PROCEDURAL HISTORY

¶ 3. The Court of Appeals set forth the following facts and procedural history:

¶ 2. The taxpayers are Equifax, Inc. and Equifax Credit Information Services, Inc. (“ECIS”) (collectively referred to as “Equifax”). Equifax, Inc. is a Georgia corporation in the business of consumer credit reporting. It sells credit information and other services to consumers and businesses across the country. Equifax, Inc. was registered to do business and was in fact doing business in Mississippi. Equifax, Inc. is the parent company of ECIS. The services provided by Equi-fax, Inc[.] and ECIS include: credit reporting, information services, direct mail marketing, risk management, and mortgage loan processing and approval. The primary services provided are credit reports, credit scores, and fraud alerts.
¶ 3. The [Commission] audited Equifax for payment of state income taxes for the period of January 1, 2000, through December 31, 2003 (the “audit period”). During the audit period, Equifax had approximately 800 customers located in Mississippi. The revenue generated from these Mississippi customers was $5,275,406 in 2000, $6,579,281 in 2001, $5,646,283 in 2002,. and $5,178,370 in 2003. Based on these figures, the total gross receipts for the sale of Equifax’s services provided to Mississippi customers during the audit period totaled $22,679,340.
¶4. Equifax did not have a corporate office in Mississippi but employed three Mississippi residents. Equifax’s Mississippi customers requested and received services from Equifax at their Mississippi locations. These transactions primarily occurred electronically and took approximately three seconds from the time the customer requested the credit report or score to the time they received the information.
¶ 5. Equifax timely filed Mississippi state income tax returns for each year in the audit period. However, Equifax reported no taxable income in the State for each of these years and paid no income tax for each year. In computing taxable income, Equifax relied on the [Commission’s] regulations and the standard-apportionment method for service companies. As a result, Equifax determined that it had no income subject to tax in Mississippi.
¶ 6. At the conclusion of the audit, on February 28, 2008, the [Commission] issued assessments against Equifax. The [Commission] determined that the apportionment method used by Equifax did not fairly reflect the extent of Equi-fax’s business in Mississippi. The [Commission] determined Equifax should have used an alternative-apportionment method, a market-based sourcing method, during the audit period.
¶ 7. Equifax disagreed with the assessments and appealed the assessments to the Mississippi Tax Commission Board of Review (the “Board”). The Board upheld the assessments in a reduced amount. Equifax then appealed to the three-member Tax Commission, which upheld the Board’s reduced assessments.
¶ 8. On May 29, 2009, Equifax paid the assessments, under protest, including interest and penalties. Equifax, Inc.’s assessments totaled $467,836; and ECIS’s assessments totaled $271,201.
¶ 9. On June 1, 2009, pursuant to Mississippi Code Annotated section 27-77-7 (Rev. 2008), Equifax appealed the assessment to the Hinds County Chancery Court. [The chancellor] held an eviden-tiary hearing on all issues presented. The chancellor then entered an order and final judgment, dated October 26, 2010, affirming the [Commission’s] assessments.

Equifax, — So.3d at -. In its Complaint and Petition, Equifax sought judicial review of the decision of the Tax Commission. Equifax averred that the Commission’s use of the alternative apportionment method was not authorized by Mississippi law and violated Equifax’s rights under the United States Constitution. Equifax and the Commission filed a stipulation of agreed-upon facts. At trial, Equifax was burdened to prove its entitlement to relief — that the Commission’s decision was reversible — by a preponderance of the evidence. The chancellor concluded that Equifax had failed to meet its burden to prove that the Commission’s use of an alternative apportionment method violated the Mississippi Administrative Procedures Act, that its imposition of penalties against Equifax was arbitrary and capricious, or that Equifax’s rights under the United States Constitution had been violated. The court further found that it could not substitute its “judgment for the agency’s unless the latter’s interpretation is arbitrary or unreasonable.” It further found, in the limited record presented, including the agreed-upon facts, that the Commission orders were premised on substantial evidence.

¶ 4. Equifax appealed the decision of the Hinds County Chancery Court to the Court of Appeals. The Court of Appeals found that: (1) a de novo standard applies to judicial review of Commission decisions; and, (2) as the party invoking alternate apportionment, the Commission has the burden to prove that the standard apportionment method is not a fair representation of the taxpayer’s activity in the state and that its chosen alternative method is reasonable. Equifax, — So.3d at -. The Court of Appeals recognized that the arbitrary-and-eapricious standard normally applies to agency decisions, but opined that “[t]his is not the normal case. The Legislature has established a different standard that ... applies here.” Id. at -. The Court of Appeals examined Mississippi Code Section 27-77-7(4) and found that “[tjhis case seems to create a conflict as to exactly what a trial de novo means in an appeal from a [Commission] decision.” Id. at -. Quoting the general understanding that “[a] de novo review ‘means that the case shall be tried the same as if it had not been tried before, and the court conducting such a trial may substitute its own findings and judgment for those of the inferior tribunal from which the appeal is taken[,]’ ” the Court of Appeals concluded that “the chancery court’s review of the [Commission’s] decision should have been conducted just as if the chancery court were sitting as the [Commission].” Id. (citing California Co. v. State Oil & Gas Bd., 200 Miss. 824, 838-39, 27 So.2d 542, 544 (1946) (citation omitted)). Concluding that the chancellor had erred both by applying an incorrect standard of review and by imposing the burden of proof on the wrong party, the Court of Appeals reversed the chancellor’s decision and remanded the case to the Hinds County Chancery Court. Id. at -. As it reversed and remanded on these two issues, the Court of Appeals found all other issues raised on appeal moot. Id.

ISSUES

¶ 5. This Court granted certiorari to address the following issues:

1. Whether the chancellor committed reversible error by applying an arbitrary-and-capricious standard when reviewing a decision of the Mississippi State Tax Commission under Section 27-77-7(4).
2. Whether the chancellor committed reversible error by requiring Equifax to carry its burden of proof of establishing that the Commission’s decision was reversible.

¶ 6. Declining to reverse the chancellor’s judgment on the grounds of standard of review or burden of proof, we also address the following additional issues raised by Equifax:

3. Whether the chancellor manifestly erred by concluding that the Commission’s use of an alternative apportionment method for Equifax’s income was not a promulgation of a new rule in violation of the Mississippi Administrative Procedures Act.
4. Whether the chancellor manifestly erred by declining to abate penalties imposed by the Commission under Section 27-13-25(3).

DISCUSSION

¶ 7. The proper standard of review and burden of proof for an appeal to chancery court of a judgment of the Commission are questions of law dictated by Mississippi statute. Miss.Code Ann. § 27-77-7(4) (2005) (amended 2009). This Court reviews questions of law de novo. Hankins v. Md. Cas. Co./Zurich Am. Ins. Co., 101 So.3d 645, 652 (Miss.2012) (citation omitted).

¶ 8. All agree that the applicable standard of review and burden of proof in chancery court for judicial review of a Commission decision are found in Mississippi Code Section 27-77-7(4), but much disagreement arises over the practical application of that language. The relevant portion of Section 27-77-7(4) reads as follows:

the chancery court shall give deference to the decision and interpretation of law and regulations by the commission as it does with the decisions and interpretation of any administrative agency, but it shall try the case de novo and conduct a full evidentiary judicial hearing on the issues raised. Based on the evidence presented at the hearing, the chancery court shall determine whether the taxpayer has proven, by a preponderance of the evidence or a higher standard if required by the issues raised, that he is entitled to any or all of the relief he has requested.

Miss.Code Ann. § 27-77-7(4) (2005) (amended 2009) (emphasis added). We hold that, under this language, the chancery court must hold a judicial hearing to determine whether the taxpayer challenging the Commission decision can prove entitlement to any or all of the relief requested by a preponderance of the evidence. In this case, the evidence to be considered by the chancellor was the record from the Commission, including the agreed-upon facts. As in other appeals of administrative-agency decisions, to be entitled to reversal of the agency decision, a petitioner must raise and prove one or more of the following: the agency’s decision was unsupported by substantial evidence, the agency’s decision was arbitrary and capricious, the agency’s decision was beyond the power of the administrative agency to make, and/or the agency’s decision violated the complaining party’s statutory or constitutional right. Buffington v. Miss. State Tax Comm’n, 43 So.3d 450, 453-54 (Miss.2010). The court does not adjudicate the wisdom/sageness of the agency’s decision, but rather is limited to examining the legality of the decision. To resolve any confusion surrounding Section 27-77-7(4), we address the pertinent provisions.

¶ 9. First, the chancery court “shall give deference to the decision and interpretation of law and regulations by the commission as it does with the decisions and interpretation of any administrative agency.” Miss.Code Ann. § 27-77-7(4) (2005). Courts accord great deference to decisions of administrative agencies; a judgment of an administrative agency is binding unless a party proves otherwise. See CLC of Biloxi, LLC v. Miss. Dep’t of Health, 91 So.3d 633, 635 (Miss.2012) (“A rebuttable presumption exists in favor of the [agency’s] decision, and the burden lies with the challenging party to prove the contrary.”) (citation omitted). Accordingly, a court will reverse the decision of an administrative agency only if the presumption is overcome, as addressed in Buffing ton, supra. The statute clearly mandates deference for Commission decisions, as for decisions of any administrative agency. These specific bases for reversal apply in appeals of Commission decisions just as they do in appeals of other administrative agencies’ decisions.

¶ 10. Equifax’s complaint in chancery court sought judicial review of the merits of the Commission’s decision, a determination which clearly was outside of the chancery court’s authority. Equifax also averred that: (1) the Commission’s use of alternative apportionment was not authorized by Mississippi law, because the Commission failed to prove, under its own regulations, that standard allocation did not fairly represent Equifax’s business activity in Mississippi and that the alternative method was reasonable; and (2) the Commission’s decision violated Equifax’s rights under the Due Process and Commerce Clauses of the federal Constitution. The chancellor properly limited his analysis to determining whether Equifax had proven that it was entitled to reversal of the Commission’s decision for any of the prescribed legal bases for reversing an agency decision provided by this Court in Buffington.

¶ 11. Section 27-77-7(4) next provides that the chancery court “shall try the case de novo and conduct a full evidentiary judicial hearing on the issues raised.” We emphasize that the subject of the eviden-tiary hearing is the issues raised on appeal in chancery court — whether the decision was made in violation of the tenets announced in Buffington — not the wisdom/sageness of the underlying decision by the Commission. The chancery court had before it the orders of the Commission and the Board of Review, including agreed findings of fact. Under Section 27-77-7(4), Equifax had the opportunity to present evidence contesting the legality of the Commission’s and the Board of Review’s decisions.

¶ 12. Perhaps the confusion surrounding Section 27-77-7(4) stems from the statute’s instruction to the chancery court to “try the ease de novo.” Black’s Law Dictionary defines “de novo” as “anew.” Black’s Law Dictionary 500 (9th ed. 2009). “Anew” means “[a] second time as a new trial or action, over again, afresh, once more.” I The Oxford English Dictionary 457 (2d ed. 1989). “A trial de novo, within the common acceptation of that term ... means that the case shall be tried the same as if it had not been tried before, and the court conducting such a trial may substitute its own findings and judgment for those of the inferior tribunal from which the appeal is taken.” California Co. v. State Oil and Gas Bd., 200 Miss. 824, 838-39, 27 So.2d 542, 544 (1946) (emphasis added). The hearing in chancery court is the first hearing conducted by a judicial tribunal to test the legality of the decision. The proceedings before the Commission are informal, nonjudicial proceedings that are neither conducted under oath nor preserved in the record for appeal. The chancery-court proceedings mark the first time a taxpayer may judicially challenge the legality of the Commission’s final decision. In the absence of a prior proceeding, no trial anew can occur. Thus, the instruction to “try the case de novo” is misdirected. Section 27-77-7(4) provides a judicial forum to try anew (or for the first time) the legal issues raised by the taxpayer in chancery court. Its limited purpose is only to examine whether the Commission’s decision was supported by substantial evidence, was not arbitrary and capricious, was within the Commission’s power to make, and did not violate the taxpayer’s statutory or constitutional rights.

¶ 13. Finally, Section 27-77-7(4) establishes the burden of proof and upon whom the burden rests. “Based on the evidence presented at the hearing, the .chancery court shall determine whether the taxpayer has proven, by a preponderance of the evidence or a higher standard if required by the issues raised, that he is entitled to any or all of the relief he has requested.” Miss.Code Ann. § 27-77-7(4) (2005) (emphasis added). This sentence stands for the simple proposition that, in a taxpayer’s action in chancery court appealing a final judgment of the Commission, as in all other judicial proceedings, the party petitioning the court for relief bears the burden of proving its claims by a preponderance of the evidence or a higher standard, if required by the issues raised.

¶ 14. In this case, under Section 27-77-7(4), the chancery court conducted a hearing to determine whether Equifax (the taxpayer) was able to prove, by the appropriate burden, that the decision was arbitrary and capricious, beyond the Commission’s power, and/or violated Equifax’s statutory or constitutional right. At the hearing in chancery court, the parties were given the opportunity to present such evidence and legal authority as they deemed appropriate to the limited issues being tried, i.e., the legality of the decision. In this case, the chancery court determined that Equifax had failed to prove that the agency’s decision violated one or more of the Buffington tenets.

¶ 15. The chancellor in the case sub judice did just that, finding that his “review of the Order of the [Commission] must be only to determine whether or not the order ‘(1) was supported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party’ ” and that “Equifax clearly bears the burden of proving, by a preponderance of the evidence, that the decision of the [Commission] is reversible .... ” Thus, the chancery court applied the proper standard of review and burden of proof.

¶ 16. It follows that the Court of Appeals erred by reversing the chancellor’s judgment on standard-of-review and burden-of-proof grounds. For the reasons discussed above, the Court of Appeals erroneously construed Section 27-77-7(4) as imposing a de-novo standard of review, such that “the chancery court’s review of the [Commission’s] decision should have been conducted just as if the chancery court were sitting as the [Commission].” Equifax, — So.3d at -. The Court of Appeals further erred by holding that the Commission — rather than the taxpayer-petitioner, Equifax — had the burden of proof, based on cases from other jurisdictions interpreting the Uniform Division of Income for Tax Purposes Act (“UDIT-PA”). Equifax, — So.3d at -. Section 27-77-7(4) clearly places the burden on the taxpayer challenging a decision of the Commission to prove its entitlement to relief, just as petitioners in other judicial proceedings bear the burden of proving their claims. We will not impose a burden on the Commission, in contradiction of the Legislature’s explicit placement of the burden on the taxpayer, on the basis that courts in states whose legislatures have adopted the UDITPA as law have done so. We conclude that the Court of Appeals erred by reversing the chancellor’s judgment requiring Equifax to carry the burden of proving that the Commission’s decision was unsupported by substantial evidence, arbitrary and capricious, beyond the power of the Commission, or in violation of a statutory or constitutional right of Equifax.

¶ 17. Reversing the chancellor’s judgment on standard-of-review and burden-of-proof grounds, the Court of Appeals found the remaining issues raised by Equifax moot. As we hold that the chancellor properly interpreted the applicable standard of review and burden of proof under Section 27-77-7(4), we do not reverse on those grounds. Accordingly, we examine Equifax’s remaining claims of error.

¶ 18. Equifax argues that the chancellor erred by finding that the use of an alternative apportionment method was not a promulgation of a new rule in violation of the Mississippi Administrative Procedures Act and that the imposition of penalties under Mississippi Code Section 27-18-25(3) was not arbitrary and capricious. These are factual determinations, and “[w]e review the chancellor’s factual determinations applying a manifest-error standard.” W.C. Fore v. Miss. Dep’t of Revenue, 90 So.3d 572, 578 (Miss.2012) (citation omitted). “This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Long Meadow Homeowners' Ass’n, Inc. v. Harland, 89 So.3d 573, 577 (Miss.2012) (citation omitted).

1Í.19. We hold that the chancellor did not manifestly err by finding that the Commission’s requirement of an alternative apportionment method for Equifax’s income did not amount to a rule, unduly promulgated in violation of the Mississippi Administrative Procedures Act. Equifax argues that the Commission promulgated a new rule for all service companies when it required Equifax to use an alternative apportionment method, because the Commission did “not rely upon a single fact unique to Equifax’s situation in support of invoking alternative apportionment!;,]” but premised its requirement of alternative apportionment “solely on the fact that Equi-fax is a service company and makes sales to customers located in Mississippi.” We disagree. Equifax presented no evidence that the Commission promulgated a new standard apportionment method for all service companies. Rather, the Commission required Equifax to use an alternative apportionment method under an existing rule, which provides that, “[i]f the [standard] allocation and apportionment provisions do not fairly represent the extent of the taxpayer’s business activity in this state, ... the Commissioner may require ... [t]he employment of any other method to effectuate an equitable allocation and apportionment of the taxpayer’s income.” Miss. Admin. Code 35-III-8.06-402.10. This language clearly provides for the Commission to require alternative apportionment where the standard allocation of income does not fairly represent a taxpayer’s activity in the state — such as Equifax’s allocation of zero income to Mississippi, despite having employees in the state and receiving $22,679,340 for services provided to customers in Mississippi during the audit period. The Commission’s judgment requiring Equifax to use an alternative apportionment method did not bind other service companies to the alternative apportionment method imposed on Equifax or alter the standard apportionment method prescribed by Commission regulation. We agree with the chancellor’s conclusion that the Commission “utilized an existing alternative method as prescribed under an existing rule. Therefore, no new promulgation of a rule occurred.”

¶ 20. We likewise hold that the chancellor did not commit manifest error by concluding that Equifax had failed to prove that the Commission’s imposition of penalties pursuant to Mississippi Code Section 27-13-25(3) (2005) (amended 2009) warranted reversal. Section 27-13-25 provided additional penalties to be imposed “[i]n case of failure to pay any additional taxes as assessed under this section, unless it is shown that the failure is due to reasonable cause and not due to willful neglect .... ” Miss.Code Ann. § 27-13-25(3) (emphasis added). Equifax argues that the chancellor is vested with authority to reverse the imposition of penalties because it disagreed with the Commission’s decision-reiterating its argument that the chancery court is to apply a de novo standard of review to appeals of Commission decisions. We disagree. The chancellor properly found as follows:

this Court cannot find that the imposition of penalties is unsupported by substantial evidence, arbitrary or capricious, beyond the power of the [Commission], or violative of some statutory or constitutional right of Equifax. This Court cannot abate penalties based solely upon its disagreement with the [Commission’s] finding as to whether Equifax acted reasonably and without willful neglect.

The chancellor was correct that he could not reverse the Commission’s decision to impose penalties solely because he would have found differently than the Commission; rather, he could reverse only if Equi-fax proved that the imposition of penalties was unsupported by substantial evidence presented to the Commission, arbitrary and capricious, beyond the power of the Commission, or in violation of Equifax’s statutory or constitutional rights — which the chancellor found Equifax had failed to do. As the chancellor pointed out in his order, it was clear that “the lack of any taxable income attributable to the State of Mississippi is not a fair assessment of Equifax’s income earned within the state.” We find that the chancellor did not commit manifest error by concluding that Equifax failed to prove that it was entitled to reversal of the Commission’s imposition of penalties. Accordingly, we conclude that the chancellor did not err by affirming the Commission’s decision, based on the evidence presented at the evidentiary hearing.

CONCLUSION

¶ 21. For the reasons discussed above, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Hinds County Chancery Court affirming the Mississippi State Tax Commission’s use of an alternative apportionment method and assessment of income taxes and penalties against Equifax.

¶ 22. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS REINSTATED AND AFFIRMED.

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

      . Since the events underlying this appeal occurred, the "Mississippi State Tax Commission” has been renamed the "Mississippi Department of Revenue.” Miss.Code Ann. § 27-3-4 (Rev. 2010). In the interest of consistency, this opinion uses the term "Commission.”

      . No claim was made that the Commission’s decision was unsupported by the agreed-upon facts. Rather, Equifax claimed that the Corn-mission improperly applied regulations and laws in an impermissible manner.

      . Or a higher standard, if required by the issues raised. Miss.Code Ann. § 27-77-7(4) (2005).

      . For example, a taxpayer claiming that a Commission decision was the result of fraud must carry the higher burden of proving his claim by clear and convincing evidence. See O.W.O. Investments, Inc. v. Stone Inv. Co., 32 So.3d 439, 446 (Miss.2010) ("these elements [of fraud] must be proven by clear and convincing evidence” (citation omitted)).

      . In W.C. Fore v. Mississippi Department of Revenue, 90 So.3d 572 (Miss.2012), this Court held that Section 27-77-7(4) “clearly requires the chancellor to be the trier of fact on appeal.” Fore, 90 So.3d at 578. We now clarify that the chancellor is the trier of facts related to the taxpayer's claim(s) on appeal, i.e., whether the Commission's decision was unsupported by substantial evidence, arbitrary and capricious, beyond the power of the Commission, or in violation of a statutory or constitutional right of the taxpayer.

      .Commission regulations include the following UDITPA language:
      402.10 Other Provisions. If the allocation and apportionment provisions of this Regulation do not fairly represent the extent of the taxpayer's business activity in this state, the taxpayer may petition for, or the Commissioner may require, in respect to all or any part of the taxpayer’s business activity, if reasonable:
      1. Separate accounting:
      2. The exclusion of any one of the factors;
      3. The inclusion of one or more additional factors which will fairly represent the taxpayer’s business activity in this state; or
      4. The employment of any other method to effectuate an equitable allocation and apportionment of the taxpayer’s income.
      Miss. Admin. Code 35 — III—8.06 (2011) (emphasis added). The Court of Appeals is correct that courts in jurisdictions where the UDITPA has been adopted statutorily have interpreted this language as requiring the party invoking alternative apportionment to prove that the standard apportionment method does not fairly represent the taxpayer’s business in the state and that the chosen alternative is reasonable. Equifax, - So.3d at — (citing Microsoft Corp. v. Franchise Tax Board, 39 Cal.4th 750, 47 Cal.Rptr.3d 216, 139 P.3d 1169, 1178 (2006); Am. Tel. & Tel. Co. v. Huddleston, 880 S.W.2d 682, 691 (Tenn.Ct.App.1994); and Deseret Pharm. Co. v. State Tax Comm'n, 579 P.2d 1322, 1326 (Utah 1978)). However, those decisions do not inform our decision, for the Mississippi Legislature has not adopted the UDITPA as law; in Mississippi, this UDITPA language appears in an administrative regulation adopted by the Commission, and the Mississippi Legislature has specifically provided that the taxpayer bears the burden of proof in appeals of Commission decisions.

      . Under the Mississippi Administrative Procedures Act, an agency must observe certain procedures prior to promulgating a new rule, including considering and composing a written report on the economic impact and benefits of the rule, filing notice with the Secretary of State at least twenty-five days before adopting the rule, and, if requested by a political subdivision, agency, or at least ten persons, holding an oral hearing. Miss.Code Ann. §§ 25-43-3.101 to 25-43-3.114 (Rev. 2010).


source: Caselaw Access Project

author: LAMAR, Justice, CHANDLER, Justice,

license: Public Domain

text:
    David CAMPBELL v. STATE of Mississippi.
    No. 2011-CT-00272-SCT.
    Supreme Court of Mississippi.
    Aug. 1, 2013.
    Rehearing Denied Nov. 21, 2013.

      Steven E. Farese, Sr., Ashland, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   ON WRIT OF CERTIORARI

LAMAR, Justice,

for the Court:

¶ 1. David Campbell was convicted of fondling a minor over whom he held a position of trust or authority under Mississippi Code Section 97-55-23(2) (Rev.2006). The Court of Appeals reversed and rendered Campbell’s conviction, finding that “the State failed to prove that Campbell occupied a position of trust or authority as defined by section 97-5-23(2).” We granted certiorari and, finding no merit in Campbell’s assignments of error, we reverse the Court of Appeals and reinstate and affirm Campbell’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. Lauren, a minor with a history of abuse, entered treatment at Millcreek of Pontotoc (“Millcreek”) when she was sixteen years old. Although Lauren was in the legal custody of the Jackson County Department of Human Services and her physical placement was with Millcreek, one of her therapists, Kitty Campbell, along with her husband, David Campbell, agreed to take physical custody of Lauren. Lauren moved in with the Campbells and their two biological children in the spring of 2006. Lauren’s social worker, Gloria Mc-Arthur, testified that Lauren was physically placed with the Campbells while they were in the process of being licensed as foster parents, that the Campbells had physical custody of Lauren, and that they were treating her as one of their own children until they could be licensed. Specifically, McArthur testified as follows:

Q: Mrs. McArthur, were the Campbell’s [sic] in 2006, what was their status regarding [Lauren], do you know?
A: Yes, I remember that. By Mrs. Campbell being [Lauren’s] counsel- or and she was talking back and forth constantly between my supervisor Matt Matthews and myself. So my supervisor Matt decided that since she was a counselor at Mill-creek while going through the process of becoming license [sic] foster parent that it would be okay for [Lauren] to visit, to, you know, just be treated as one of their own children until we can get the finalization of her placement with them. So they had physical custody of [Lauren],

While living with the Campbells, Lauren had her own bedroom and was allowed to have friends over with permission. The Campbells imposed rules on Lauren, such as curfew, limiting television, and taking her phone away when she ran up the bill, and even took Lauren on vacation with their family. On the way home from a vacation, Lauren got into an argument with the Campbells’ son, after which Lauren moved back into the Millcreek facility as a residential patient on August 17, 2006.

¶ 3. On September 9, 2006, less than one month after Lauren moved back to Mill-creek, David Campbell came to visit her at lunch one day. Lauren testified that she and Campbell talked and kissed during his visit. While Lauren and Campbell were visiting on the Millcreek grounds, a group of food service workers observed what they felt was inappropriate behavior. According to the workers, Campbell and Lauren behaved in a manner suitable to boyfriend/girlfriend, not a father and his daughter. There was also testimony that Campbell and Lauren moved their conversation to a truck in the parking lot, that it appeared they were kissing (although no workers actually saw a kiss), and that traffic on the main road slowed as passing motorists watched Campbell and Lauren’s interaction. The workers reported what they saw to a Millcreek supervisor, and Campbell’s visit was cut short.

¶ 4. After Campbell’s visit, Lauren was interviewed by one of her therapists, Leslie May, and Investigator Leland McDi-vett. Lauren initially denied an inappropriate relationship with Campbell. Lauren eventually reported that she and Campbell had been engaged in a consensual sexual relationship since the first week she had been in his custody. Lauren testified that she believed that Campbell was forty-two years old at the time their affair started. Lauren further testified that she loved Campbell and believed that he loved her, that she and Campbell kissed, touched, and had intercourse almost every day, and that Campbell had given her an engagement ring and promised to marry her one day.

¶ 5. May testified that Lauren had been living with her foster family, the Camp-bells, prior to moving into Millcreek. May repeatedly referred to the Campbells as Lauren’s foster family, and testified that they had been included in family counseling sessions. The record further reveals that Kitty Campbell signed Lauren’s “family review of master treatment plan” sign-in sheet as Lauren’s parent/guardian on September 1, 2006. May- testified that Lauren eventually reported during therapy that Lauren and David Campbell had touched, kissed, bathed together, and had sexual intercourse multiple times while she lived with him. May additionally testified that Lauren was very upset after the investigation into her relationship with Campbell began because she felt that she had been abandoned by her family; ie., the Campbells.

¶ 6. One of Lauren’s friends also testified that she had seen Campbell “french kiss” Lauren when spending the night with her at the Campbells’ home. The friend testified that Campbell kissed Lauren “as if she was his wife.” The friend further testified that Lauren later told her that she and Campbell were going to have sex, and that she went outside so that Lauren and Campbell could “go ahead” and have sex. The friend testified that, when she returned, Lauren was wearing lingerie with no bottoms and that she had what appeared to be semen on her body. The friend testified that Lauren indicated the semen was Campbell’s. Lauren also testified about the night’s events, corroborating the sexual activities and the kiss, although her account varied in some of the details.

¶ 7. Campbell was indicted for one count of fondling a minor over whom he held a position of trust or authority under Mississippi Code Section 97-5-23(2) and one count of sexual battery of a minor by a person in a position of trust and authority under Mississippi Code Section 97-3-95(2). The indictment charged that the crimes occurred between the first day of May 2006 and the ninth day of August 2006 and that Campbell’s position over Lauren was, “to-wit, the child’s foster parent.” After a trial, the jury returned a guilty verdict on the charge of fondling and an acquittal on the charge of sexual battery. Campbell appealed, arguing that his conviction and sentence should be reversed and rendered or, alternatively, he should be granted a new trial, because (1) the State failed to prove he was the legal guardian or foster father of Lauren; (2) he was never identified to the jury as the perpetrator of the crime; (B) his age was never proven; (4) the verdict was against the overwhelming weight of the evidence; and (5) the trial court erred in granting jury instruction number nine.

¶ 8. We assigned the case to the Court of Appeals. The Court of Appeals found that .the State had failed to prove that Campbell was “Lauren’s foster father as alleged in the indictment.”. The Court of Appeals concluded that, “[bjecause there is no evidence to support the allegation that Campbell held a position of trust or authority over Lauren, we find the jury could not have found all the elements of the crime of fondling beyond a reasonable doubt.” Therefore, the Court of Appeals reversed and rendered Campbell’s conviction and sentence. Because it found the issue of whether the State had proven that Campbell was Lauren’s foster father dis-positive, the Court of Appeals did not reach the other issues Campbell raised on appeal.

¶ 9. We granted certiorari. We find that there was sufficient evidence that Campbell was in a position of trust or authority over Lauren and we also address the remaining assignments of error.

DISCUSSION

I. The circuit court properly denied Campbell’s motions for directed verdict and judgment notwithstanding the verdict.

¶ 10. Motions for directed verdict and judgment notwithstanding verdict (JNOV) “challenge the legal sufficiency of the evidence.” “Since each requires consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court.” “In appeals from an overruled motion for JNOV, the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State.” “We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.”

A. There was sufficient evidence that Campbell was in a position of trust or authority over Lauren.

¶ 11. To be convicted under Section 97-5-23(2), the State must prove that the person charged was in a position of trust or authority over the minor at the time the crime occurred. The statute includes a nonexhaustive list of the type of positions that would qualify as a person in a position of trust or authority over a child as follows: “A person in á position of trust or authority over a child includes without limitation a child’s teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.” The list of enumerated positions merely provides examples of positions that would fit the statute, and is not intended to limit the circumstances under which a person could be found to be in a position of trust or authority over a minor.

¶ 12. Campbell argues sufficient evidence was not presented at trial to allow the jury to find that he was Lauren’s foster father or that he occupied a position of trust or authority over Lauren; therefore, he argues that his conviction must be reversed. The Court of Appeals found that there was no evidence that Campbell was Lauren’s foster parent or legal guardian, that there was no evidence in the record that the Campbells had any control over Lauren or her care, and that Lauren was merely a visitor in the Campbell’s home. We disagree.

¶ 13. Section 97-5-23(2) does not limit the categories of people who can be found to be in a position of trust or authority over a minor to those who have a legal relationship with the child or who hold some license or certification, but rather provides a general list of examples to be considered when determining whether a person does hold a position of trust or authority over a certain child. In support of its conclusion that Campbell was not in a position of trust or authority over Lauren, the Court of Appeals noted that the enumerated positions included in Section 97-5-23 all require, or generally require, a certifícate or license. However, this reasoning focuses on the status of the accused only, and not on the relationship between the accused and the victim. Certainly, merely holding a license as a foster parent or counselor or other licensed position does not place one in a position of trust or authority over every minor — the statute clearly states that the accused must be the child’s counselor, coach, etc.

¶ 14. Additionally, while many teaching and coaching positions do require certification, not all do. We doubt that anyone would argue a school teacher is not in a position of trust or authority over his or her student, simply because he or she does not have a teaching certificate or license. Thus, while a determination of whether Campbell was Lauren’s licensed foster parent or legal guardian is a good starting point for analysis, it is not the end of the discussion. To determine whether there was sufficient evidence for a jury to determine that Campbell was in a position of trust or authority over Lauren, we look to all the evidence presented and the totality of the circumstances, not just to Campbell’s legal position.

¶ 15. Although Campbell was not a licensed foster parent, we find that there was sufficient evidence for the jury to determine that Campbell was in a position of trust or authority over Lauren because he acted as her de facto foster parent. Black’s Law Dictionary defines “de facto” in the first instance as “actual; existing in fact; having effect even though not formally or legally recognized.” Black’s further defines “foster parent” as “an adult who, though without blood ties or legal ties, cares for and rears a child, especially an orphaned or neglected child who might otherwise be deprived of nurture.” In this case, there was clear evidence that Campbell actually cared for Lauren, a neglected child with whom he had no blood or legal ties, even though he was not licensed as her foster father.

¶ 16. Lauren testified that she believed Campbell was her foster father, that she lived with the Campbells for several months, that she had her own bedroom in the Campbells’ residence, that she was allowed to have a friend over to spend that night with her while living with the Camp-bells after she asked permission, that she went on family vacations with the Camp-bells, and that the Campbells imposed rules on her, such as giving her a curfew; taking away her cell phone when she ran up the bill, and limiting her television. Lauren’s social worker testified that Lauren was physically placed with the Camp-bells while they were in the process of being licensed as foster parents, and that the Campbells had physical custody of Lauren and were treating her as one of their own children until they could be licensed. May, Lauren’s therapist, repeatedly referred to the Campbells as Lauren’s foster family, included the Camp-bells in family counseling sessions, and testified that Lauren considered the Campbells her family. Furthermore, the State presented a copy of a message sent by Campbell to Lauren via her My Space account in which he referred to her as his daughter. It is clear that Lauren was much more than a visitor in Campbell’s home.

¶ 17. We find that there was sufficient evidence for the jury to conclude that Campbell was in a position of trust or authority over Lauren at the time the crime occurred. This issue is without merit.

B. There was sufficient evidence that Campbell was the perpetrator of the crime.

¶ 18. Campbell further argues that there was not sufficient evidence for the jury to convict him because he was never identified as the perpetrator of the crime, and that no evidence was presented that Campbell, the defendant, was the same person as Campbell, the alleged perpetrator of the crime. Investigator McDivett testified regarding his investigation of the reported inappropriate lunchtime activity as follows:

Q: Investigator McDivett, I had just handed you what has been marked as State’s exhibit 1 for identification purposes, can you tell the jury what that document is?
A: Yes, ma’am. It’s a My Space copy of the My Space account that was printed with the words Dave and a picture of Mr. Campbell, the defendant, on it and it says ‘my true story or the true story I told’, and it’s marked September 12, 2006.
Q: Did you obtain that document from the My Space account of [Lauren]?
A: I did.

McDivett additionally testified regarding his interrogation of Campbell as follows:

Q: Where did the interview take place?
A: In a hotel in Southaven.
Q: Was the defendant placed under arrest or any type of custody during the interview?
A: No ma’am, it was a non-custodial interview.
Q: How did the defendant react in your interview with him regarding the allegations made at Millcreek by [Lauren]?
A: He denied everything.

McDivett testified at length as to his investigation of Campbell and his discovery that Lauren and Campbell were involved in a sexual relationship. It is clear from his testimony that he was referring to David Campbell, the defendant.

¶ 19. We have stated:

The character and adequacy of evidence of identification of an accused in a criminal case is primarily a question for the jury, provided the evidence could reasonably be held sufficient to comply with the requirement of proof beyond a reasonable doubt. The jury need not be controlled by the number of witnesses testifying to the identification of an accused. Identification based on the testimony of a single witness, if complying with the standard in criminal cases, can support a conviction....

The jury heard McDivett repeatedly testify that he had investigated. David Campbell, the defendant, based upon Lauren’s allegations, and that he had concluded there was a sexual relationship between the two. Furthermore, the jury heard several witnesses testify regarding the sexual relationship between Lauren and David Campbell, including Lauren herself. Even though not every witness specifically identified David Campbell as the defendant, there was sufficient evidence from the testimony as a whole for the jury to conclude that David Campbell, the defendant, was David Campbell, the alleged perpetrator of the crime. This issue is without merit.

C. There was sufficient evidence that Campbell was over the age of eighteen at the time he committed the crime.

¶ 20. Another essential element that must be proven for a defendant to be convicted under Section 97-5-23(2) is that the defendant was over the age of eighteen at the time the crime occurred. The State bears the burden of proving a defendant’s age as “an affirmative fact.” Campbell, who does not claim that he was under the age of eighteen at the time of the crime and was in fact forty-two years old, argues that the State failed to prove this element at trial. Specifically, Campbell argues that the only evidence presented to the jury regarding his age is Lauren’s testimony that she “believed” Campbell to be forty-two years old at the time of the crime, and that such testimony is not credible.

¶21. During its direct examination of Lauren, the State asked Lauren how old Campbell was when she lived with and engaged in a sexual relationship with him. Lauren replied, “I believe he was forty-two.” We have held that similar testimony is sufficient to prove a defendant’s age. In Crenshaw v. State, the defendant argued that the State had failed to prove he was over the age of eighteen and, therefore, had failed to prove an essential element of the crime of gratification of lust under Mississippi Code Section 97-5-23. In determining there was no merit to defendant’s argument, we explained that one of the State’s witnesses, a close friend of the defendant, had testified “I think he’s thirty-eight (38).” We held that such testimony established defendant’s age by competent evidence.

¶ 22. We find that there was sufficient evidence for the jury to determine that Campbell was over the age of eighteen at the time the crime occurred. This issue is without merit.

II. The trial court properly denied Campbell’s motion for a new trial.

¶ 23. “A motion for a new trial challenges the weight of the evidence. A reversal is warranted only if the trial court abused its discretion in denying a motion for a new trial.” “We will disturb a verdict only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” “[T]he evidence should be weighed in the light most favorable to the verdict.”

¶ 24. Campbell did not testify and did not call any witnesses. Campbell argues that the trial court erred in denying his motion for a new trial because the jury’s verdict rests only on the testimony of Lauren and her friend, and that neither girl’s testimony was credible, because Lauren gave conflicting stories to investigators and because Lauren’s and her friend’s testimony differed on certain details. However, “it is the role of the jury to evaluate the veracity of the witnesses.”: Based on the evidence previously discussed, we find that the verdict was not contrary to: the overwhelming weight of the evidence and that the trial court properly denied Campbell’s motion for a new trial. This issue is without merit.

III. The trial court did not err in giving jury instruction number nine.

¶ 25. “Jury instructions are within the discretion of the trial court and the settled standard of review is abuse of discretion.” “The jury instructions are to be read as a whole, with no one instruction to be read alone or taken out of context.” “When read together, if the jury instructions state the law of the - case and create no injustice, then no reversible error will be found.”

¶26. Campbell argues that the trial court erred in giving jury instruction number nine because subsections 3(b) and 3(c) are not supported by Mississippi law. Instruction number nine instructed the jury in relevant part that it should, find Campbell guilty if it found that he:

3. For the purpose of gratifying his lust or depraved licentious sexual desires did either of the following, with or without the consent of [Lauren] ...
(b) passionately kiss [Lauren] while groping her body with his hands; or
(c) passionately kiss [Lauren].

Campbell argues these subsections singled out and gave undue prominence to certain evidence and also invited the jury to speculate that the kiss was done with the purpose of satisfying Campbell’s lust. The State argues that Campbell did not raise these specific objections at trial and is, therefore, procedurally barred from seeking appellate review of these issues. Alternatively, the State argues that instruction number nine was properly given.

¶ 27. Campbell objected at trial to instruction number nine (proposed instruction S — 2) in relevant part as follows:

[Counsel for Campbell]: Yes, sir. I don’t think that subsection c should be ■ included at all as stated there. I don’t think that is the law. I mean and it’s duplicative of subparagraph b.
[Counsel for the State]: Your Honor, ... there is no other reason other than fondling to kiss a minor in your care and there was testimony that it was done, open mouth kiss. I don’t have to establish that there was actually groping in order to establish a charge of fondling.
[Counsel for Campbell]: I disagree, I know of no authority that would support that jury instruction as specifically pointing out the passionately kiss. And if their position is, and I also think it’s duplicative of subsection b.
[Counsel for the State]: It’s either or. There was evidence that there was groping and there was evidence that there was a kiss on two different occasions.
By the Court: Anybody have any law of where passionate is—
[Counsel for the State]: I have law and I will grab it. It says a kiss with evidence of other licentious sexual desires is enough evidence to prove a charge of fondling. And we have other evidence of a relationship existing between these two individuals.
By the Court: Well, what about passionate kiss and added that with other, where were the other licentious.
[Counsel for the State]: It requires for the purpose of gratifying his lust or depraved licentious desires.
By the Court: I am going to grant that instruction. We will give it.

¶ 28. The record reveals that Campbell did not specifically object to instruction number nine on the basis that it required the jury to assume or speculate that the kiss was done for the purpose of gratifying Campbell’s lust. Therefore, this specific assignment of error is procedurally barred from our review. This assignment of error is without merit.

¶ 29. The record further reveals that Campbell objected to instruction number nine in part on the basis that it “pointed out the passionate kiss.” However, Campbell did not specify why pointing out the kiss would be improper and did not argue to the trial judge that including “passionately kissed” in the instruction would “give undue prominence to certain portions of the evidence.” Rather, it appears the discussion regarding instruction number nine dealt with whether a kiss could support a conviction for fondling and whether subsection (c) was duplicative of subsection (b). Campbell did not specifically object at trial to instruction number nine on the same grounds he now raises on appeal. We find that this assignment of error is procedurally barred and without merit.

CONCLUSION

¶ 30. For the reasons discussed above, the judgment of the Court of Appeals is reversed, and David Campbell’s conviction and sentence are reinstated and affirmed.

¶ 31. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED. CONVICTION OF FONDLING A MINOR AND SENTENCE OF SEVEN (7) YEARS, WITH FIVE (5) YEARS SUSPENDED, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED. UPON RELEASE APPELLANT SHALL BE PLACED ON TWO (2) YEARS OF POST RELEASE SUPERVISION.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR. CHANDLER, J„ SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J.

CHANDLER, Justice,

specially concurring:

¶ 32. I concur with the Court’s holding that David Campbell was in a position of trust or authority over the minor victim. Section 97-5-23(2) proscribes the fondling of a person under the age of eighteen with or without the child’s consent when the perpetrator “occupies a position of trust or authority over the child.” Miss.Code Ann. § 97-5-23(2) (Rev.2006). I write separately to express my opinion that this Court should construe Section 97-5-23(2) prudently so that the statute’s reach is not over-inclusive.

¶ 33. The victim in this case was sixteen years old and above the age of consent. See Miss.Code Ann. § 97-3-65 (Rev.2006). While Campbell’s conduct was reprehensible, it was criminal only if Campbell was in a position of trust or authority over the victim. Under Section 97-5-23(2), “[a] person in a position of trust or authority over a child includes without limitation a child’s teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.” Id. A person in a position of trust or authority over a child has special access to the' child, and may use the position to exact the victim’s compliance. Therefore, a child over sixteen and under eighteen years of age cannot legally consent to sexual activity with a person in a position of trust or authority. Miss.Code Ann. § 97-5-23(2); Miss.Code Ann. § 97-3-95(2) (Rev.2006) (“a person is guilty of sexual battery if he or she engages in sexual penetration with a child under the age of eighteen (18) years if the person is in a position of trust or authority -”). But if the older person is not in a position of trust or authority over the sixteen-year-old when the sexual activity occurs, no crime has occurred. Because the statute does not limit the persons who may be considered to be in a position of trust or authority, that task is left to our appellate courts, considering the particular facts and circumstances of each case. It is vital that this Court prudently determine the limitations of the statute so that its reach is not over-inclusive.

¶ 34. I turn to the facts of this case. Campbell was an applicant for the status of foster parent, and he had accepted Lauren into his home with the approval of the Department of Human Services. DHS considered Lauren to be in the “physical custody” of the Campbells. She was to be “treated as one of their own children” until the placement was finalized. As outlined by the majority, Campbell and his wife made all decisions related to Lauren’s day-to-day care as if she was one of their own children. They controlled Lauren’s ability to come and go, decided if she could have visitors, gave her a curfew, limited her television, and paid for and monitored her cell-phone use. Under these circumstances, Campbell stood in loco parentis to Lauren. Certainly, a person standing in loco parentis to a child is in a position of trust or authority over that child under Section 99-5-23(2). I concur with the majority’s holding.

DICKINSON, P.J., JOINS THIS OPINION.

      . Campbell v. State, 125 So.3d 58, 59 (Miss.Ct.App.2012).

      . We use the same fictitious name as used by the Court of Appeals to protect the victim’s identity.

      . Millcreek is a psychiatric treatment facility offering residential, day, and outpatient therapy services for patients between the ages of six and twenty-one. Millcreek is accredited by the Joint Commission, the Division of Medicaid, the Department of Education, and the Department of Human Services. Referrals are made by family members, mental-health facilities, acute-care facilities, service agencies, and school districts. See www.millcreek ofpontotoc.com (July 31, 2013).

      . The jury was instructed that it had to find that Campbell was in a position of trust or authority over [Lauren] as her foster parent to find Campbell guilty of fondling.

      . Id. at 62-63.

      . Id.

      . McClain v. State, 625 So.2d 774, 778 (Miss.1993).

      . Id.

      . Id. (citations omitted).

      . Id. (citations omitted).

      . Section 97-5-23 has two subsections. Under subsection one, the victim must be under the age of sixteen. Subsection two applies when the victim is between the ages of sixteen and eighteen. Miss.Code Ann. § 97-5-23 (Rev.2006). As Lauren was sixteen at the time of the offense, Campbell was charged under subsection two.

      . Miss.Code Ann. § 97-5-23(2) (Rev.2006) (emphasis added).

      . Black's Law Dictionary 183 (2d pocket ed.2001).

      . Id. at 511-12.

      . Mamon v. State, 724 So.2d 878, 881 (Miss.1998).

      . Crenshaw v. State, 520 So.2d 131, 133 (Miss.1988).

      . Id.

      . Id. at 134.

      . Id.

      . Horton v. State, 919 So.2d 44, 50 (Miss.2005) (citations omitted).

      . Bush v. State, 895 So.2d 836, 844 (Miss.2005) (citation omitted).

      . Id. (citation omitted).

      . Montana v. State, 822 So.2d 954, 965 (Miss.2002) (citation omitted).

      . Bailey v. State, 78 So.3d 308, 315 (Miss.2012) (citing Newell v. State, 49 So.3d 66, 73 (Miss.2010)).

      . Bailey, 78 So.3d at 315 (citing Young v. State, 891 So.2d 813, 819 (Miss.2005) (citing Howell v. State, 860 So.2d 704, 761 (Miss.2003))).

      . Bailey, 78 So.3d at 315 (citing Newell, 49 So.3d at 73) (citing Rubenstein v. State, 941 So.2d 735, 784-85 (Miss.2006))).

        . Morgan v. State, 741 So.2d 246, 253 (Miss.1999) ("in order to preserve a jury instruction issue on appeal, a party must make a specific objection to the proposed instruction in order to allow the lower court to consider the issue”).

      . Id. ("an objection on one or more specific grounds constitutes a waiver of all other grounds”) (citations omitted).

      . Id.

      . The status of in loco parentis “exists when [one] person undertakes care and control of another in absence of such supervision by [the] latter's natural parents and in absence of formal legal approval, and is temporary in character and is not to be likened to an adoption which is permanent.” Smith v. Smith, 97 So.3d 43, 47 (Miss.2012) (quoting J.P.M. v. T.D.M., 932 So.2d 760, 780 (Miss.2006)).


author: GRIFFIS, P.J.,

text:
    David CAMPBELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00272-COA.
    Court of Appeals of Mississippi.
    July 17, 2012.
    Rehearing Denied Dec. 11, 2012.
    Steven E. Farese Sr., Ashland, attorney for appellant.

      Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. David Campbell was convicted of fondling a minor over whom he held a position of trust or authority under Mississippi Code Annotated section 97-5-23(2) (Rev.2006). On appeal, he claims: (1) there is no evidence that he occupied a position of trust or authority over the minor; (2) he was never identified to the jury as the perpetrator of the crime; (3) his age, which was an essential element of the crime, was never proven; (4) the verdict is against the overwhelming weight of the evidence; and (5) the circuit court improperly granted Jury Instruction 9. We agree that the State failed to prove that Campbell occupied a position of trust or authority as defined by section 97-5-23(2). Therefore, Campbell’s conviction and sentence are reversed and rendered. Because we reverse on Campbell’s first assignment of error, the remaining issues need not be addressed.

FACTS

¶ 2. Lauren entered residential treatment at Millcreek of Pontotoc when she was sixteen years old. She was in the legal custody of the Jackson County Department of Human Services (DHS) at the time. Lauren had an extensive history of abuse: she was taken into DHS custody when she was two months old; she was placed with her biological father when she was four years old, and he exposed her to physical and sexual abuse; she was placed with her maternal great-grandparents at age seven; and she moved from family member to family member until age fourteen, when she was again placed in DHS custody.

¶ 3. Kitty Campbell, one of Lauren’s therapists, agreed to let Lauren come and live with her and her husband, David Campbell. Lauren stayed with the Camp-bells for approximately three months. During a vacation to California, Lauren had an argument with the Campbells’ son. When the Campbells pulled the car to the side of the road to address the argument, Lauren got out and started walking down the side of the interstate. When they returned home, Lauren was taken back to Millcreek.

¶4. On September 9, 2006, Campbell went to Millcreek to return some of Lauren’s personal belongings. He brought lunch, and he and Lauren sat outside at a gazebo to eat. A group of food-service employees were also outside. They observed Lauren touch Campbell’s face and sit very close to Campbell, acting more like Campbell’s girlfriend than his daughter.

¶ 5. Lauren and Campbell then moved to Campbell’s vehicle, which was backed into a parking space in the Millcreek parking lot. They went to the back of the vehicle. Witnesses testified that Campbell and Lauren sat on the tailgate and lifted their feet into the vehicle. They also said that traffic on the road that faced the back of the vehicle came to a crawl to stare at Campbell and Lauren. The witnesses assumed that Campbell and Lauren were engaged in oral sex, but none could say that they actually saw that behavior. Several of the witnesses testified that they saw Lauren and Campbell kiss, but when cross-examined, they admitted that they just saw Lauren’s and Campbell’s heads come together and assumed that they were kissing.

¶ 6. The food-services employees reported their suspicions to Millcreek, and Campbell was told to leave. Lauren was questioned by her therapist, Leslie May, about the incident. Lauren denied that any inappropriate behavior had occurred. May questioned Campbell, who also denied that anything inappropriate had happened. Millcreek ordered that a rape kit be administered, which came back negative with no signs of penetration of Lauren’s vagina.

¶7. Lauren made several more denials before she reported that she and Campbell had been in a relationship in which he had kissed, fondled, and had intercourse with her. Lauren testified at trial that she had consensual intercourse with Campbell almost every day. A friend of Lauren’s testified that, while she was spending the night with Lauren at the Campbells’ home, she saw Lauren and Campbell share a passionate kiss. She testified that she waited outside while Campbell and Lauren had sex. When she went back to Lauren’s room, she saw what appeared to be semen on Lauren’s leg. She assumed the semen was Campbell’s because he had just left the room and because Lauren told her that it was Campbell’s.

¶ 8. Campbell was charged with Count I, sexual battery of a minor under Mississippi Code Annotated section 97-3-95 (Rev. 2006), and Count II, fondling of a minor under section 97-5-23(2). The jury found him not guilty of sexual battery but guilty of fondling. Campbell was sentenced to seven years in the custody of the Mississippi Department of Corrections, with two years to serve, five years suspended, and two years of post-release supervision.

ANALYSIS

¶ 9. Campbell claims that there was insufficient evidence to support his conviction of fondling because the State failed to prove that he held a position of trust or authority over Lauren. Therefore, he states that the circuit judge erred by not granting his motion for a directed verdict.

¶ 10. When reviewing a motion for a directed verdict, this Court looks to the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). When reviewing the sufficiency of the evidence, we examine the evidence in the light most favorable to the State to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.

¶ 11. The fondling statute is divided into two parts. Under subsection one, the minor victim must be under the age of sixteen. Since Lauren was sixteen at the time she lived with the Campbells, Campbell was charged under subsection two, which states the following:

Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child younger than himself or herself and under the age of eighteen (18) years who is not such person’s spouse, with or without the child’s consent, when the person occupies a position of trust or authority over the child shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court. A person in a position of trust or authority over a child includes without limitation a child’s teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.

Miss.Code Ann. § 97-5-23(2). Thus, when the child is between sixteen and eighteen years old, the State must prove the additional element that the defendant occupied a position of trust or authority over the child.

¶ 12. The indictment alleged that Campbell “was in a position of trust and authority over the victim, to wit: the child’s foster parent.” While it seems that foster parent would easily fit into the category of a person in a position of trust or authority, the State failed to prove that Campbell was, indeed, Lauren’s foster parent.

¶ 13. Gloria McArthur, the DHS worker assigned to Lauren’s case, testified that Lauren’s legal custody was held by Jackson County DHS and that her physical custody was at Millcreek. McArthur testified that Lauren was placed with the Campbells; however, on cross-examination, she admitted the following:

Q: What was ... the Cambell[s’] relationship with [Lauren], what were their titles?
A: They were in the process of being approved as foster parents.
Q: But one thing we know they were not foster parents; correct?
A: I can’t remember. I don’t remember seeing the paperwork come through that they were.
Q: Because in order to become a foster parent you have to go through certain hoops, in other words, requirements?
A: Correct.
Q: And one of those requirements is the [paperwork] and orders that designate them as foster parents; correct?
A: They must be licensed.
Q: You have never seen that paperwork have you?
A: We have — like each foster parent that [has] gone through the system we have licensed.
Q: I understand they have to be licensed to be a foster parent; correct?
A; Correct.
Q: Did you ever see the Campbell[s’] license?
A: We did not.

¶ 14. Throughout the trial, the State made reference to the Campbells as Lauren’s foster parents, but it failed to put on any evidence to prove that fact other than McArthur’s testimony that the Campbells were in the process of becoming foster parents. Even on redirect, McArthur’s explanation fell short of proof that the Campbells were foster parents. She stated:

By Mrs. Campbell being [Lauren’s] counselor and she was talking back and forth constantly between my supervisor Matt Matthews and myself. So my supervisor Matt decided that since she was a counselor at Millcreek while going through the process of becoming [a] licensed foster parent that it would be okay for [Lauren] to visit, to, you know, just be treated as one of their own children until we can get the finalization of her placement with them. So they had physical custody of [Lauren].

(Emphasis added).

¶ 15. As Campbell points out in his brief, of the sixteen named relationships in section 97-5-23(2), ten of those are licensed by a government agency-teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, and legal guardian. Four involve either a birth certificate or marriage licence — parent, stepparent, aunt, and uncle. And the last two — scout leader or coach — are roles that generally require certification from an organization such as the Boy Scouts of America, the Girl Scouts of the USA, the Mississippi Soccer Association, etc. Again, had the State proven that Campbell was a licensed foster parent, his status would have undoubtably fallen neatly into this list of relationships involving trust or authority over a child.

¶ 16. It is undisputed that, at all times, Lauren was in the legal custody of DHS. While the State says in its brief that Lauren was in the physical custody of the Campbells, the evidence shows that Lauren’s physical custody remained with Mill-creek. The State argues that Lauren was the de facto foster child of the Campbells. It supports this argument largely by Lauren’s testimony that she believed Campbell was her foster father. Even viewing the evidence in favor of the State, we do not agree that Lauren’s subjective belief, which was contrary to the other evidence, is sufficient credible evidence to prove an essential element of the crime charged.

¶ 17. There is no evidence in the record to support the State’s argument that Campbell was acting as Lauren’s de facto foster parent other than the sole fact that Lauren was staying at his home. Even McArthur, a witness for the State, said that DHS allowed Lauren to visit the Campbells’ home — even though they were not licensed foster parents — because Kitty, Campbell’s wife, was Lauren’s counselor.

¶ 18. In Blackmon v. State, 803 So.2d 1253, 1254 (¶ 1) (Miss.Ct.App.2002), Edward Blackmon was convicted of sexual battery by a person in a position of trust or authority in violation of Mississippi Code Annotated section 97-3-95(2). This statute has the same language as the fondling statute concerning who occupies a position of trust or authority-teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader, or coach.

¶ 19. Blackmon was the uncle of the minor victim; therefore, he was a member of one of the named classes in the statute. Blackmon, 803 So.2d at 1256 (¶ 14). In his motion for a directed verdict, Blackmon claimed that the State had failed to meet its burden because there was no proof that the victim was under Blackmon’s care and control. Id. at (¶ 13). We stated: “this Court interprets the statute to state that any person in control of the care of the child, including, but not limited to, the named classification of individuals, can be held accountable for this crime.” Id. (emphasis added). However, we went on to hold: “Blackmon, the uncle, was a member of one of the particular classes the statute classifies as in a continuous position of trust and authority, regardless of who is ‘in charge’ of the child.” Id. at (¶ 14).

¶ 20. Blackmon arguably creates a window in which Campbell could be held accountable for this crime, even though he is not in one of the named classes, if there was proof that he was in control of Lauren’s care. But there is no such proof in the record. Instead, the proof shows that DHS had legal custody, and Millcreek had physical custody. Lauren was living with the Campbells while they were in the process of becoming foster parents. There is no proof that Campbell exerted any control over Lauren’s care. The evidence merely shows that the Campbells took Lauren into their home and allowed her to accompany them on family vacations. The State did not put on evidence that Campbell controlled Lauren’s care in any way.

¶ 21. The State did not prove that Campbell was Lauren’s foster parent as alleged in the indictment. Because there is no evidence to support the allegation that Campbell held a position of trust or authority over Lauren, we find the jury could not have found all of the elements of the crime of fondling beyond a reasonable doubt. Accordingly, Campbell’s conviction and sentence are reversed and rendered.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAFAYETTE COUNTY.

LEE, C.J., ISHEE, ROBERTS, RUSSELL AND FAIR, JJ„ CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, L, CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., AND BARNES, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . We use a fictitious name to protect the identity of the minor victim.


author: BARNES, J.,

text:
    Terun MOORE a/k/a Terum Moore, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CA-01723-COA.
    Court of Appeals of Mississippi.
    April 2, 2013.
    Rehearing Denied Aug. 13, 2013.
    Certiorari Denied Nov. 7, 2013.

      Imhotep Alkebu-Lan, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   BARNES, J.,

for the Court:

¶ 1. Terun Moore appeals the denial of his motion for post-conviction relief (PCR) by the Hinds County Circuit Court. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Moore and his friend, James Washington, were playing basketball, drinking alcohol, and smoking marijuana with some friends at Hico Park in Jackson, Mississippi. Washington, Moore, and others conspired to rob Louis Avery and his brother, Michael Evans. Witnesses said that when Avery and Evans tried to flee, Moore shot into the car. Moore also confessed his involvement to police. Evans died, and Moore was convicted of murder on June 15, 2001, and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC).

¶ 3. Moore filed a motion for post-conviction relief on March 18, 2009. The PCR motion alleged facts not known at the time of trial that would have yielded different results and that Moore claimed warranted a vacation of his conviction and sentence. An affidavit from his accomplice, Washington, was attached to the motion. In the affidavit, Washington recanted his trial testimony that Moore was involved in the robbery and shooting.

¶ 4. On March 25, 2011, the circuit court held an evidentiary hearing, during which Washington testified and recanted his previous trial testimony. He claimed the police promised him a plea agreement to a lesser sentence for manslaughter in exchange for testifying that Moore was the shooter. He stated that the shooter was actually Kewanee Coleman.

¶ 5. On March 29, 2011, the circuit court denied Moore’s PCR motion, concluding that Moore failed to show that, “but for Washington’s testimony, the jury would have reached a different conclusion.” Moore now appeals the denial of his motion, and finding no error, we affirm the circuit court’s judgment.

STANDARD OF REVIEW

¶ 6. Unless a circuit court’s denial of a motion for post-conviction relief is clearly erroneous, it will not be reversed on appeal. Patton v. State, 96 So.3d 790, 792 (¶ 6) (Miss.Ct.App.2012) (citing Thorson v. State, 76 So.3d 667, 674 (¶ 18) (Miss.2011)). “However, questions of law are reviewed de novo.” Id. (citing Thorson, 76 So.3d at 674 (¶ 19)).

DISCUSSION

¶ 7. At Moore’s trial, Washington testified that Moore shot Evans. Washington, who pleaded guilty to a lesser charge of manslaughter and received a sentence of eight years, was released from MDOC custody in 2007. In an affidavit dated May 5, 2008, Washington recanted his prior trial testimony, stating: “I testified that on April 2, 1998[,] Terun Moore and I participated in a robbery. I further testified that Terun Moore had a .25 millimeter pistol and I saw him pointing and firing the gun during the robbery. This was not the truth.” Washington said that Coleman fired the gun, not Moore. Although Washington also testified at the evidentiary hearing that he had told his girlfriend that Moore was not the shooter, she was not called as a witness.

¶ 8. Moore contends that the circuit judge erred in finding Moore failed to meet his burden of proof regarding the recanted testimony and in denying his PCR motion. Although “recanted testimony does not entitle a defendant to a new trial[,] ... an evidentiary hearing is required when recanted testimony is raised in a PCR motion.” Esco v. State, 102 So.3d 1209, 1214 (¶ 13) (Miss.Ct.App.2012) (citations omitted). Whether a new trial should be granted based on recanted testimony is reviewed “under an abuse-of-discretion standard.” Id. “[R]ecanted testimony is ‘exceedingly unreliable, and is regarded with suspicion; and it is the right and duty of the court to deny a new trial where it is not satisfied that such testimony is true.’ ” Id. (quoting Bradley v. State, 214 So.2d 815, 817 (Miss.1968)). A determination on whether to grant a new trial based on recanted testimony “should be left to the sound discretion of the [circuit] court and should not be set aside unless clearly erroneous.” Turner v. State, 771 So.2d 973, 976 (¶ 11) (Miss.Ct.App.2000) (quoting Peeples v. State, 218 So.2d 436, 439 (Miss.1969)).

¶ 9. At trial, there was testimony by several police officers that Moore confessed to the shooting. The victim’s brother, Avery, testified that Moore was standing next to the car when the shooting occurred. Coleman, who Washington now claims was the shooter, was a witness at trial. Coleman admitted he was at the park at the time of the shooting and claimed Moore had left at some point before the shooting. But he also testified that his back was turned during the shooting and that he was running away when the shots were fired. Coleman did not testify at the hearing.

¶ 10. The circuit court conducted the appropriate evidentiary hearing and concluded that Washington’s recanted testimony did not warrant granting Moore a new trial. Moore has produced no additional evidence to corroborate Washington’s new version of the shooting. Further, as the circuit court noted in its order:

[T]here is no actual evidence that Washington’s original trial testimony was a lie. To the contrast, ... other evidence amply supports Washington’s trial testimony, including the eyewitness testimony of the victim’s brother.
Given the admission of [Moore’s] confession, which has already been upheld on appeal, and the testimony of the brother, the Court is confident the original verdict was just and further finds it unlikely a new trial, without the recanted testimony, would produce a different result.

We cannot find that the circuit court’s denial of a new trial based on Washington’s recanted testimony was an abuse of discretion. Accordingly, the circuit court’s denial of Moore’s PCR motion was not in error.

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

LEE, C.J., IRVING and GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR and JAMES, JJ., concur.

      . Moore filed a direct appeal of his conviction and sentence with this Court, and we affirmed the judgment. See Moore v. State, 914 So.2d 185, 193 (¶ 30) (Miss.Ct.App.2005).

      . The Mississippi Supreme Court granted Moore leave to file his PCR motion on December 10, 2008.