text:
    Justin MATTHEWS a/k/a Justin D. Matthews a/k/a Justin Dewayne Matthews, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01747-COA.
    Court of Appeals of Mississippi.
    Feb. 11, 2014.

      Wayne Dowdy, Dunbar Dowdy Watt, attorneys for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Justin Matthews was convicted of sexual battery of a sixteen-year-old girl. While the State offered no physical evidence of the rape, the jury heard testimony from the victim and witnesses who corroborated her version of events leading up to and following the sexual encounter.

¶ 2. On appeal, Matthews claims the jury’s verdict was against the overwhelming weight of the evidence. He primarily argues the jury should have been instructed on an evidentiary inference that, had the State conducted forensic testing on the victim’s clothing, the test results would have been exculpatory. But Matthews did not request a jury instruction on a spoliation inference, and our review shows no inference instruction was warranted. To receive a spoliation-of-evidence inference, the defendant must show the State intentionally and in bad faith destroyed potentially exculpatory evidence. And here, Matthews concedes the State did nothing wrong regarding the physical evidence. With no required inference, the jury was free to weigh the evidence concerning the victim’s clothing as it saw fit.

¶ 3. After viewing all evidence in the light most favorable to the jury’s verdict, we find no evidentiary reason to disturb the jury’s decision. And because Matthews did not object and thus waived his remaining argument — that the prosecution made an improper comment during closing argument — we affirm his conviction.

Background Facts and Procedural History

I. Sexual Battery

¶ 4. In July 2011, sixteen-year-old Angela was visiting her cousin Kimberly for a few days. Kimberly, her husband, and their young children lived in a mobile home directly behind Matthews’s brother’s house. One night during Angela’s visit, Matthews, his brother, and his brother’s girlfriend stopped by to socialize. As the night wore on, the gathering dwindled to Kimberly, Angela, and Matthews. Kimberly testified that Angela asked permission to go next door with Matthews to get a cold Dr. Pepper. Kimberly told Angela not to be gone long because it was time for bed.

¶ 5. According to Angela, when she and Matthews returned to the mobile home, they found Kimberly asleep on the couch. So they went outside on the porch to smoke a cigarette. After about ten minutes, Matthews grabbed Angela by the wrist and pulled her around the side of the mobile home where there were no lights. Angela claimed that he then pushed her to the ground, pulled down her shorts, and put his penis in her vagina. While Angela testified she did not scream because she “was too nervous,” she did tell Matthews “no.” And this “no” was loud enough for Matthews to hear because “she wanted to get rid of him.”

¶ 6. Afterwards, Matthews left, and Angela lay on the ground for a few minutes. She eventually got up and went back inside her cousin’s house, where she crawled into a broken baby crib and curled up in the fetal position. She then texted her best friend, saying, “I don’t know what to do.”

¶ 7. Angela testified Matthews raped her around six in the morning, just as it was getting light. And her friend testified she received the first text message from Angela at 6:20 a.m. that morning. The friend immediately called Angela, who was sobbing and barely comprehensible. Through her tears, Angela told her friend that she had “kinda” had sex. When the friend asked what Angela meant by “kinda,” Angela explained that even though she had said “no,” Matthews did not stop.

¶ 8. Angela remained at her cousin’s house several more days but did not tell Kimberly what had happened. According to Kimberly, she did not see Matthews at his brother’s house after that night. Finally, Angela texted her mother’s live-in boyfriend, J.C., to come pick her up. When J.C. arrived, he noticed Angela was acting differently. He asked her what had happened, and she told him about what Matthews had done. After briefly stopping at their home, J.C. took Angela to his mother’s house, while he went to get Angela’s mother from work. When Angela’s mother learned what had happened, she and J.C. took Angela straight to the sheriffs department.

II. Investigation and Trial

¶ 9. According to a sheriffs department investigator, he took Angela’s statement but did not subject her to any physical examination. He decided against forensic testing because several days had passed since the purported rape and Angela had since showered several times. Angela maintained she had not been scratched or bruised during the rape. And while she thought the shorts she had been wearing may have gotten grass stains on them, she told the investigator her mother had already washed them. So the investigator did not attempt to collect her clothes as potential evidence. The investigator questioned Matthews, who admitted to drinking heavily that night. Matthews also admitted to “visiting” with Angela that night and going with her to get the Dr. Peppers. But according to the investigator, Matthews “denied the other allegations.” Matthews was charged with sexual battery — specifically, penetration without Angela’s consent in violation of Mississippi Code Annotated section 97-3-95(l)(a) (Rev.2006).

¶ 10. At trial, Matthews’s attorneys questioned the investigator, J.C., and Angela about the clothes she had been wearing at the time of the claimed rape. They asked the investigator why he did not do any forensic analysis and questioned Angela about what had happened to her clothes after the incident. J.C. was asked if Angela had her clothes bag with her when he picked her up from Kimberly’s, and J.C. testified that she did.

¶ 11. Defense counsel followed up by asking if there was time for Angela’s mother to have washed the clothes before taking Angela to the sheriffs department. And J.C. testified there would not have been time, because they only briefly stopped at home before picking up Angela’s mother and going to see the investigator.

¶ 12. Though Angela’s mother testified, Matthews’s counsel chose not to ask her if she had washed Angela’s clothes after the incident. Angela’s mother did, however, testify that her daughter’s demeanor changed following the claimed rape and that Angela did not sleep or eat well for a month and was very closed off emotionally. Angela’s best friend also testified that Angela acted differently after she told her about Matthews raping her.

¶ 13. Matthews exercised his right not to testify. The defense rested without calling any witnesses. While the defense submitted several jury instructions, it did not request an instruction about the evi-dentiary value of the clothes Angela had been wearing during the rape. The jury found Matthews guilty of sexual battery. He was sentenced to ten years’ imprisonment, with six years suspended and four years to serve.

III. Post-Trial Motion and Appeal

¶ 14. In his motion for a new trial, Matthews for the first time argued that he had been entitled to a presumption that the evidence Angela “destroyed” — the clothes she had been wearing during the attack — would have been exculpatory. He also for the first time complained the prosecutor improperly referred during closing argument to the rape as Angela’s “first sexual experience,” when there was no evidence it had been her first sexual encounter. Finally, Matthews claimed the jury’s verdict was against the overwhelming weight of the evidence.

¶ 15. After the circuit court denied his post-trial motion, Matthews timely appealed, arguing he was entitled to a new trial for the same three reasons offered in his post-trial motion. We review the denial of a motion for a new trial for abuse of discretion. Powell v. State, 80 So.3d 849, 857 (¶ 22) (Miss.Ct.App.2012) (citing Johnson v. State, 42 So.3d 53, 57 (¶ 14) (Miss.Ct.App.2010)).

Discussion

I. Spoliation of Evidence

¶ 16. Matthews first argues he must be retried because Angela “concealed and destroyed important evidence.” He claims he was entitled to an inference that forensic testing of the clothes Angela had been wearing the night of the attack would have produced exculpatory evidence. But Matthews neither requested the jury be instructed on a spoliation inference nor can he show he was entitled to a spoliation instruction, as he concedes the State did nothing wrong regarding Angela’s clothes. Thus, the circuit court did not abuse its discretion when it denied Matthews’s request for a new trial on this basis.

¶ 17. In support of his evidentia-ry-inference argument, Matthews invokes the “spoliation of the evidence” rule. Under this rule, if a party intentionally spoils or destroys evidence relevant to a case, an inference arises that the spoiled or destroyed evidence would have been unfavorable to that party. Washington v. State, 478 So.2d 1028, 1032 (Miss.1985) (citing 29 Am.Jur.2d Evidence § 177 (1968)). In the criminal context, because the State has a duty to preserve evidence, the State’s intentional, bad-faith destruction of material evidence also violates the defendant’s due-process rights. See Harness v. State, 58 So.3d 1, 4-5 (¶¶ 11-13) (Miss.2011) (discussing development of three-factor test to determine whether defendant’s due-process rights have been violated by State’s failure to preserve evidence); Tolbert v. State, 511 So.2d 1368, 1372-73 (Miss.1987) (addressing defendant’s argument that State, by not sending tissue sample to crime lab, violated his due-process rights by intentionally destroying exculpatory evidence). But here, the State did not violate Matthews’s due-process rights. Matthews concedes that no one in the Lincoln County Sheriffs Department or District Attorney’s Office acted in bad faith when investigating or prosecuting Matthew’s case. Instead, he accuses the victim, Angela, of acting in bad faith by telling the investigator her mother had already washed her clothes.

¶ 18. Matthews asks us to expand the spoliation-of-evidence doctrine and apply it to situations where the government did not act in bad faith. In United States v. Wise, 221 F.3d 140, 156 (5th Cir.2000), the United States Court of Appeals for the Fifth Circuit rejected a similar argument. In that case, the Fifth Circuit held there was no issue of spoliation of evidence when a private computer owner upgraded his operating system, wiping out data relevant to the government’s case against defendants who had threatened using weapons of mass destruction. Id. Because the government did not destroy the computer, which was never in its possession, “there [was] no evidence of bad faith conduct by the government[.]” Id. Thus, the Fifth Circuit held that “the district court properly declined to instruct the jury on the issue of spoliation of the evidence.” Id.

¶ 19. Similarly, here there is no evidence of bad-faith conduct by the State. Matthews acknowledges the State did not conceal or destroy Angela’s clothes, which never came into its possession. So even if Matthews had requested an instruction that the jury infer forensic testing of the clothes would have been exculpatory— which he did not — a spoliation instruction would have lacked evidentiary support.

¶20. Our second reason for rejecting Matthews’s spoliation-of-evidence argument is the fact that he waived it. Unlike the criminal defendant in Washington, the record shows Matthews never requested the jury be instructed to infer that, if it found Angela had intentionally destroyed the shorts, the shorts would have been unfavorable to Angela’s version of events. See Washington, 478 So.2d at 1032-33 (holding the trial court properly rejected the defendant’s proposed instruction that the jury could infer untested tissue samples would have been exculpatory because the defendant failed to show intentional spoliation); see also Wise, 221 F.3d at 156 (holding that, because there was no evidence to support the government’s spoliation of the evidence, the trial court properly refused the defendant’s requested instruction that the jury infer the evidence would have been exculpatory); Murray v. State, 849 So.2d 1281, 1286-87 (¶¶ 20-23) (Miss.2003) (same); Guillen v. State, 825 So.2d 697, 698-99 (¶¶ 4-7) (Miss.Ct.App.2002) (same).

¶ 21. Further, the Mississippi Supreme Court has held that “[a] trial court is not required to sua sponte instruct the jury or suggest jury instructions in addition to what the parties tender.” Wilson v. State, 936 So.2d 357, 363 (¶ 14) (Miss.2006). So the circuit judge had no duty to instruct the jury to consider if Angela had intentionally concealed or destroyed forensic evidence, and if so, to infer that such forensic evidence would have been exculpatory. Consequently, the failure to instruct does not warrant a new trial.

¶ 22. Matthews also claims he was denied “an opportunity to confront his accuser regarding her untruthful statement to the investigator and her unwillingness to have the clothes examined.” This is the same argument made and rejected in Wise — that the “failure to give a spoliation instruction deprived [the defendants] of the opportunity to attack effectively the mishandling of evidence[.]” Wise, 221 F.3d at 156. As did the Fifth Circuit in Wise, we find the fact that no spoliation-of-evidence instruction was given did not mean that Matthews was unable to present his spoliation claim. See id.

¶ 23. At trial, Matthews was given— and took advantage of — the opportunity to challenge the veracity of Angela’s claim that her mother had already washed her clothes. Though Matthew’s attorneys opted not to ask Angela’s mother if she had washed the clothes, they did question Angela, the investigator, and J.C. about the clothes, focusing on why they were not tested, and if Angela’s mother had time to wash them before reporting the rape to the investigator. And during its closing argument, the defense strongly reiterated its theory that Angela lied to the investigator to prevent forensic testing, to conceal that Matthews had not raped her.

¶24. Because no spoliation-of-evidence instruction was requested or required, the jury “could weigh the evidence [concerning the loss of evidence] as presented.” Smith v. State, 835 So.2d 927, 942 (¶ 45) (Miss.2002) (finding no error in denying spoliation-of-evidence instruction where trial judge found State had not intentionally destroyed evidence). We therefore find no error on this issue.

II. Weight of the Evidence

¶ 25. Even without a favorable inference based on spoliation, Matthews claims he is still entitled to a new trial. While he argues the jury’s verdict went against the overwhelming weight of the evidence, we are mindful “the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)). When considering an objection to the weight of the evidence, we view the evidence in the light most favorable to the verdict. And 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.” Id. (citation omitted).

¶ 26. Matthews’s weight-of-the-evidence argument essentially attacks Angela’s credibility. He points to other witnesses’ testimony that called into question Angela’s recollection about the time of day she had been raped and her claim that her mother had washed her clothes before taking her to see the investigator. But “issues of weight and credibility of a witness’s testimony are within the sole province of the jury as fact-finder.” Price v. State, 23 So.3d 582, 586 (¶ 17) (Miss.Ct.App.2009) (quoting King v. State, 798 So.2d 1258, 1262 (¶ 14) (Miss.2001)). And here, the jury, as the “the final arbiter of a witness’s credibility,” was free to find credible Angela’s testimony that Matthews had forced himself upon her without her consent. Collins v. State, 97 So.3d 1247, 1251 (¶ 14) (Miss.Ct.App.2012) (quoting Morgan v. State, 681 So.2d 82, 93 (Miss.1996)).

¶ 27. Angela testified that Matthews grabbed her by the wrist, pushed her to the ground, and had non-consensual sex with her. Angela’s best Mend testified that she talked to Angela immediately after, and her distraught friend told her Matthews did not stop when she said no. And Angela’s cousin testified that she fell asleep, leaving Angela alone with Matthews. Viewing the evidence in the light most favorable to the verdict, we do not find the overwhelming weight of the evidence contradicts the jury’s verdict. So the circuit court did not abuse its discretion in denying Matthews’s motion for a new trial.

III. Prosecutorial Misconduct

¶28. Matthews bases his final argument for a new trial on a claim of prosecu-torial misconduct.

¶ 29. During closing argument the State mentioned that Angela had to tell the investigator “about her first sexual experience.” This comment was made in the context of arguing that Angela had no motive to lie about being raped:

What was her motive for saying this? What would she have to gain by this? I’ll tell you what she did gain by this. She gained sleepless nights. She gained the inability to eat. She gained stomachaches. She distanced herself from her family and from her best friend in the aftermath of this. Not only that, she got to sit and talk with [the sheriffs department investigator], who [sic] she never met before. But still, she had to sit there and tell him about her first sexual experience. She is still upset about this. On top of that, the other thing it gained her was a ticket to that chair in this courtroom. She doesn’t know y’all. She doesn’t know, probably, anybody sitting out back there. And she’s having to tell y’all about it.

Matthews insists this argument was unfair because no evidence had been offered that this incident was Angela’s first sexual experience. See Ross v. State, 954 So.2d 968, 1002 (¶ 74) (Miss.2007) (citations omitted) (“Arguing statements of fact which are not in evidence or necessarily inferable from facts in evidence is error when those statements are prejudicial.”).

¶30. But Matthews admits he did not contemporaneously object to the comment during trial. So appellate review of this issue is waived. See id. at 1001 (¶ 71) (holding “failure to object to the prosecution’s statements in closing argument constitutes a procedural bar”); see also Dampier v. State, 973 So.2d 221, 234-36 (¶¶ 38-40) (Miss.2008) (holding argument that prosecutor made comments that were unsupported by the evidence was procedurally barred because defendant did not object); Havard v. State, 928 So.2d 771, 791 (¶¶ 33-35) (Miss.2006) (same).

¶ 31. Our supreme court has held that “in extreme cases, a failure to object to questions [that] were violative of a constitutional right will not act as a procedural bar to consideration.” Dampier, 973 So.2d at 235 (¶ 39) (quoting Ross, 954 So.2d at 1002 (¶ 71)). But we do not find the comment so extreme as to require reversal, such as when a prosecutor’s comment infringes on a defendant’s constitutional right not to testify. See, e.g., Griffin v. State, 557 So.2d 542, 552 (Miss.1990) (citations omitted). We instead find this case to be like Dampier, where the procedural bar remained intact. Dampier, 973 So.2d at 236 (¶ 40) (concluding “that Dam-pier’s failure to object to the now-disputed comments in closing argument creates a procedural bar, as those comments did not infringe upon Dampier’s constitutional rights”).

¶ 32. To be considered plain error, the substance of a closing argument must not only be “out of bounds for closing argument,” Boyd v. State, 977 So.2d 329, 337 (¶ 34) (Miss.2008) (quoting Minor v. State, 831 So.2d 1116, 1123 (¶ 23) (Miss.2002)), but also infringe upon a defendant’s constitutional rights, Dampier, 973 So.2d at 236 (¶ 40). See also Mitchell v. State, 21 So.3d 633, 642 (¶¶ 31-32) (Miss.Ct.App.2008).

¶ 33. The prosecutor’s boundaries in closing arguments are “wide” — “extending] not only to the facts presented in evidence, but also to deduction and conclusions he may reasonably draw therefrom, and the application of the law to the facts.” Dampier, 973 So.2d at 235-36 (¶ 39) (quotations and citations omitted). Though Angela did not testify she had never had sex before the encounter with Matthews, her best friend’s testimony could be viewed as indicating Angela lacked the sexual experience to describe what had happened. Also, the comment was made in the context of how Angela had suffered physically and emotionally since the assault, a fact established through the testimony of Angela’s mother and Angela’s best friend.

¶34. But assuming the comment was out of bounds, we still must consider the prosecutor’s remarks “in light of the entire trial,” not in isolation. Havard, 928 So.2d at 791 (¶ 35) (citing Byrom v. State, 863 So.2d 836, 872 (¶ 123) (Miss.2003)). And in doing so, we find this lone isolated comment does not rise to the level of prosecu-torial misconduct so extreme as to violate Matthews’s constitutional right to a fair trial. Cf. id. (finding no reversible error in prosecutor’s allegedly unsupported comment that defendant may have previously abused capital-murder victim when such comment was viewed in light of entire trial).

¶ 35. For these reasons, we find the circuit court did not abuse its discretion when it denied Matthews’s motion for a new trial. We therefore affirm Matthews’s conviction and sentence.

¶ 36. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH SIX YEARS SUSPENDED AND FOUR YEARS TO SERVE, FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A FINE OF $2,500 AND RESTITUTION OF $500 TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Angela is a fictitious name, used to protect the identity of the minor victim.

      . Matthews has remained free on bond pending the outcome of this appeal.

      . Matthews first challenged the prosecutor’s statement in his motion for a new trial. The Mississippi Supreme Court has held that, "if an appellant raises for review an issue not raised in the pleadings, transcript, or rulings, the appellant must have preserved the issue by raising it in a motion for new trial.” Hughes v. State, 90 So.3d 613, 623 (¶ 25) (Miss.2012) (quoting Page v. State, 64 So.3d 482, 489 (¶ 29) (Miss.2011)). "But 'raising objections in a motion for new trial which should have been made at trial has never been thought to cure the failure to object at the proper time.’ ” Id. (quoting Smith v. State, 797 So.2d 854, 856 (¶ 7) (Miss.2001)). Instead, "[i]t is axiomatic that a litigant is required to make a timely objection^ and] ... if no contemporaneous objection is made, the error, if any, is waived.” Smith, 797 So.2d at 856 (¶ 7) (citing Walker v. State, 671 So.2d 581, 597 (Miss.1995)). So Matthews’s raising this issue in his post-trial motion did not undo his waiver. See Hughes, 90 So.3d at 623 (¶ 25).


source: Caselaw Access Project

author: ROBERTS, J., JAMES, J.,

license: Public Domain

text:
    Shelton SMILEY, Appellant v. HERCULES CONCRETE PUMPING SERVICE, INC. and the Travelers Indemnity Company, Appellees.
    No. 2012-WC-01437-COA.
    Court of Appeals of Mississippi.
    Feb. 11, 2014.

      Christopher Hederi Neyland, Jackson, attorney for appellant.
    Bryan Gray Bridges, attorney for appel-lees.
   ROBERTS, J.,

for the Court:

¶ 1. The Mississippi Workers’ Compensation Commission (Commission) reversed an administrative judge’s (AJ) decision that Shelton Smiley was entitled to workers’ compensation benefits for an alleged on-the-job injury he suffered while working for Hercules Concrete Plumbing Service Inc. in February 2008. Smiley appealed the Commission’s decision to the Noxubee County Circuit Court, and the circuit court affirmed the Commission’s decision. Smiley has now appealed and asks this Court to determine whether the circuit court’s decision to affirm was supported by substantial evidence and whether its decision was arbitrary or capricious. Finding no error, we affirm.

FACTS

¶ 2. Smiley, an employee of Hercules since July 1998, was working a job in Noxubee County on February 14, 2008, that required him to connect approximately ten-foot sections of pipe through which cement would be poured. Though there is contradictory testimony as to how the injury occurred and the events following, Smiley claims that he injured his lower back while completing the job that day. Smiley claims that he reported the injury to Eli Sanchez, his coworker, to Kenny Barker, the dispatcher at Hercules, and to Paul Shelley, Hercules’s president, on the same day as the injury. Barker and Shelley testified that Smiley never informed them that the injury was an on-the-job injury. However, Smiley is adamant that he informed individuals at Hercules several times that it was an on-the-job injury.

¶ 3. Shelley explained that he had asked Smiley multiple times whether the injury was an on-the-job injury, because they would need to fill out some paperwork; however, Smiley never indicated to him that this was necessary and never asked to have the paperwork filled out for the injury. Shelley testified that there was a procedure all employees followed when an on-the-job injury occurred. The employee was to report the injury to Shelley, who would fill out the appropriate paperwork. The employee would then be evaluated and treated at Baptist Occupational Medical Center, located across the street from Hercules. Shelley further testified that Smiley was familiar with this procedure, as he had been injured in the past and had utilized this procedure in seeking treatment for those injuries; however, Smiley did not follow any of this procedure.

¶ 4. According to Smiley, he again informed Shelley that his back was injured and that he would not be able to work. Smiley also attempted to see his family doctor, but could not do so because the doctor was unable to see him that day. It was not until February 18, 2008, that Smiley was able to see a medical professional regarding his back. Smiley stated that he informed the nurse practitioner that he was injured at work and that she ordered that he remain off work and placed him on lifting restrictions of no more than ten pounds. There is no notation on his medical records with the nurse practitioner indicating an on-the-job injury occurred. No other medical records presented indicate an on-the-job injury occurred. Smiley did attend physical therapy six times, but he did not receive any further treatment or evaluation for his injury until the independent medical examination in June 2009.

¶ 5. On June 5, 2009, Smiley was evaluated by Dr. David Collipp with NewSouth NeuroSpine at the request of the insurance carrier. Dr. Collipp’s report notes that Smiley’s medical records after the February 2008 incident indicate that there was no known injury and “[tjhere [was] no documentation of any work injury, or any other injury.” Dr. Collipp further noted that “[f]rom the available information, particularly the documentation from around the time of the injury, it does not appear [Smiley] suffered a work-related injury.” Additionally, Dr. Collipp stated that, hypothetically, if Smiley’s injury was work related and was a lumbar strain, Smiley “would have reached maximum medical improvement on or about March 14, 2008[.]” Lastly, Dr. Collipp found that Smiley “has a minimum of medium duty according to his physical examination, with a minimum maximum lift of [fifty] pounds.”

PROCEDURAL HISTORY

¶ 6. On July 10, 2008, Smiley filed his petition to controvert. A hearing was held before the AJ on March 2, 2010, where the AJ heard live testimony from Smiley and reviewed Smiley’s medical records, the deposition of Shelley, the deposition of Kevin McCarthy, and phone records. The AJ found that Smiley’s testimony as to his injury was credible; therefore, he did suffer a compensable injury. The AJ awarded Smiley temporary total disability benefits from the date of the injury until March 10, 2008, and found that any further determination would require the submission of additional evidence. Additionally, the AJ found Smiley should undergo an MRI to aid in determining “further proposed treatment, maximum medical improvement, disability ratings[,] and permanent restrictions.... ”

¶ 7. Hercules and its insurance carrier appealed the AJ’s decision to the Commission. On October 18, 2010, the Commission reversed the AJ’s decision because of several inconsistencies in Smiley’s testimony and “the lack of any history of a work injury in the initial medical reports following the date of alleged injury.” In considering all the evidence presented, the Commission ultimately found Shelley’s testimony of the events to be more credible than Smiley’s. Smiley timely filed his appeal of the Commission’s decision to the circuit court. The circuit court affirmed the Commission’s decision by order dated April 5, 2012. Still aggrieved, Smiley filed the present appeal.

¶ 8. On appeal, Smiley raises two issues:

I. Did the [Commission] err when it overturned the [AJ] and determined that [Smiley] did not suffer an on[-]the[-]job injury while employed by [Hercules]?
II. Mississippi is a notice pleading state[; therefore] the purpose of pleading in Mississippi is to give notice, not state facts.

STANDARD OF REVIEW

¶ 9. “Our standard of review in actions arising under Workers’ Compensation Law is limited to determining whether the Commission erred as a matter of law or made findings of fact contrary to the overwhelming weight of the evidence.” Smith v. Johnston Tombigbee Furniture Mfg. Co., 43 So.3d 1159, 1164 (¶ 15) (Miss.Ct.App.2010) (citing Clements v. Welling Truck Serv. Inc., 739 So.2d 476, 478 (¶ 7) (Miss.Ct.App.1999)). If the Commission’s order is not “based on substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law,” then reversal of its order is appropriate. Id. (citing Weatherspoon v. Croft Metals Inc., 853 So.2d 776, 778 (¶ 6) (Miss.2003)). Additionally, “the Commission, not the administrative judge, is the ultimate fact-finder, and this Court will apply a general deferential standard of review to the Commission’s findings and decisions despite the actions of the administrative judge.” Id. at (¶ 17) (quoting Smith v. Jackson Constr. Co., 607 So.2d 1119, 1123-24 (Miss.1992)).

ANALYSIS

¶ 10. Smiley’s primary argument is that the Commission erred because the uncorroborated testimony of a claimant “should be accepted by the Commission unless it is inherently improbable, incredible, unreasonable, or shown to be untrustworthy.” Washington v. Woodland Village Nursing Home, 25 So.3d 341, 357 (¶ 40) (Miss.Ct.App.2009) (citing Penrod Drilling Co. v. Etheridge, 487 So.2d 1330, 1333 (Miss.1986)). However, we find that the Commission’s decision was based on substantial evidence, and was not arbitrary or capricious or based on an erroneous application of the law. Upon our review of the record, we find that there was substantial evidence to support the Commission’s finding that Smiley did not suffer a compensable injury.

¶ 11. The Commission sits as the finder of fact, irrespective of the AJ’s findings. Lott v. Hudspeth Ctr., 26 So.3d 1044, 1048 (¶ 12) (Miss.2010) (citing Smith v. Container Gen. Corp., 559 So.2d 1019, 1021 (Miss.1990)). As the finder of fact, the Commission is also charged with determining the credibility of the witnesses and evidence presented. Short v. Wilson Meat House, 36 So.3d 1247, 1251 (¶23) (Miss.2010) (citations omitted). When conflicts in credible evidence arise, the Commission is also charged with determining where the preponderance of the evidence lies. Richardson v. Johnson Elec. Auto. Inc., 962 So.2d 146, 152 (¶ 16) (Miss.Ct.App.2007). Additionally, “contradictory or negative testimony concerning the cause of injury may be substantial evidence upon which a claim may be denied.” Langford v. Southland Trucking LLC, 30 So.3d 1266, 1277 (¶ 40) (Miss.Ct.App.2010) (citing Westmoreland v. Landmark Furniture Inc., 752 So.2d 444, 449 (¶ 15) (Miss.Ct.App.1999)).

¶ 12. The Commission reviewed Smiley’s testimony given at the hearing before the AJ. Smiley testified that on February 14, 2008, he was working a job for Hercules. His job was to connect pipes that would carry cement from a cement truck to a slab. He testified that he was lifting one of the pipes when he injured his lower back. According to Smiley, he immediately informed Sanchez of his injury and then called several people at Hercules about his injury; specifically, he spoke directly to Shelley. Smiley presented phone records showing he called Shelley’s cell phone at the time of the injury, and he claimed it was during that phone call that he informed Shelley he had been injured. He also stated that he spoke -with Shelley in person on February 15, 2008, about his injury. Smiley finished the rest of the job responsibilities for that day, but he had to take two BC powders. Smiley also explained that when he was able to see the medical professional on February 18, 2008, he did inform her that he had hurt his lower back at work; however, the medical report for that visit indicates that there was no known injury.

¶ 18. The Commission also reviewed the deposition testimony of Shelley. In Shelley’s deposition, he stated: “I tried to get [a hold] of [Smiley] a few days after [the injury] because he [did not] call, [and] he [did not] show up for work. I finally got in touch with [him], and he claimed that his back was hurting from an old injury.” Shelley further explained that when he started receiving calls from a doctor’s office about insurance for Smiley, he again called Smiley and asked if it was a workers’ compensation injury, and “[Smiley] stated to me again that this was not a [workers’ compensation] injury.” A letter dated March 5, 2008, written by Shelley to Smiley, was also entered into evidence. The letter indicates that if Smiley had been injured, he would need to come in to the office and fill out the proper paperwork. Shelley testified that Smiley never came in to fill out the paperwork. Shelley additionally explained that Smiley was very familiar with Hercules’s policy on workers’ compensation injuries because Smiley had utilized the procedure in the past on more than one occasion. A written statement from Sanchez, Smiley’s coworker the day of the alleged injury, was produced in which Sanchez denied he had seen Smiley injure himself. McCarthy’s deposition was also reviewed by the Commission. In it McCarthy stated that in the past he had given Smiley BC powders for back pain on multiple occasions. McCarthy stated that he could not remember a time where Smiley told him his back pain was worse than any other time, nor could he remember whether Smiley ever told him he injured his back on February 14, 2008. According to McCarthy, “[Smiley] told every [Hercules] operator in that whole place that his back hurt for years.”

¶ 14. In the present case, the Commission was presented with conflicting testimony regarding an alleged injury. While Smiley contended he informed several employees of Hercules about the injury, his testimony was contradicted by the depositions of Shelley and McCarthy. The Commission specifically stated that it found Shelley’s testimony to be more trustworthy than Smiley’s testimony. It was the Commission’s duty as the finder of fact to weigh the contradictory evidence, and determine which testimony was more credible. Based on our review of the record, we agree the Commission logically could find Shelley’s testimony was more credible than Smiley’s. Smiley did nothing to facilitate a workers’ compensation claim even though he had utilized Hercules’s worker’s compensation procedure pri- or to his alleged injury, and was informed via the letter on March 5, 2008, of what he needed to do if his injury was a workers’ compensation injury.

¶ 15. Also of importance is the lack of medical evidence presented showing a causal link between Smiley’s employment and his injury. In workers’ compensation cases, the claimant bears the burden of proving by a fair preponderance of the evidence that an injury occurred, and that the injury has a causal connection with the claimant’s employment. City of Laurel v. Blackledge, 755 So.2d 573, 577-78 (¶17) (Miss.Ct.App.2000) (citing Hedge v. Leggett & Platt Inc., 641 So.2d 9, 13 (Miss.1994)). “The causal connection between the claimant’s injury and disability must be proven with competent medical proof and based upon a reasonable degree of medical probability.” Anthony v. Town of Marion, 90 So.3d 682, 690 (¶ 28) (Miss.Ct.App.2012) (quoting Airtran v. Byrd, 953 So.2d 296, 299 (¶ 3) (Miss.Ct.App.2007)). The sole medical evidence in the record on Smiley’s behalf is the medical record from his visit to the nurse practitioner on February 18, 2008, in which there was a notation that there was “no known injury.” The only other medical evidence contained in the record is a letter from Dr. Collipp, who examined Smiley on June 5, 2009, as well as Smiley’s medical history. As was explained above, Dr. Collipp opined that “it does not appear [that Smiley] suffered a work-related injury.” No testimony or evidence was presented linking Smiley’s employment at Hercules to his claim of lower-back pain. We find that this issue is without merit.

¶ 16. Smiley also argues that the Commission erred because it relied on inconsistencies in his testimony and his petition to controvert when it rejected his claim that he had suffered a compensable injury. He submits that because Mississippi is a notice-pleading state, his petition to controvert was solely to give notice and not to state facts; therefore, the Commission erred in relying on the inconsistencies. While the Commission noted the inconsistencies, a review of the record shows that there was additional evidence, described above, to support the Commission’s decision. This issue is without merit.

¶ 17. THE JUDGMENT OF THE NOXUBEE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J„ DISSENTS WITH SEPARATE WRITTEN OPINION.

JAMES, J.,

dissenting:

¶ 18. I respectfully dissent from the majority’s opinion and agree with the argument asserted by Smiley, that the Commission’s decision to reverse the AJ’s finding that Smiley suffered a compensable work-related injury was not supported by substantial evidence. This court must defer to the Commission on issues of weight and credibility; however, “the Commission’s ultimate decision must be based on substantial evidence.” Guy v. B.C. Rogers Processors Inc., 16 So.3d 29, 35 (¶ 24) (Miss.Ct.App.2008). “Substantial evidence requires more than mere conjecture or possibility.” Id.

¶ 19. We have held that “[w]hen testimony is undisputed and not so unreasonable as to be unbelievable, taking into account the factual setting of the claim, the claimant’s testimony generally ought to be accepted as true.” Id. at 36 (¶ 25). “Contradiction exists when there is affirmative evidence to the contrary.” Id. Likewise, uncorroborated testimony of a claimant “should be accepted by the Commission unless it is inherently improbable, incredible, unreasonable, or shown to be untrustworthy.” Washington v. Woodland Village Nursing Home, 25 So.3d 341, 357 (¶ 40) (Miss.Ct.App.2009).

¶ 20. I do not think that Shelley’s deposition testimony qualifies as “affirmative testimony to the contrary” as to whether Smiley suffered a compensable work-related injury. Although there is conflicting testimony, the contradictions are equivocal, pertaining to when or if Smiley informed Shelley of the injury. The only contradictory testimony that pertains directly to whether or not Smiley suffered a work-related injury was Shelley’s testimony that when he asked Smiley if his injury was work related, Smiley said that it was not, and that Smiley referred to his back pain as an “old injury.” Shelley does not affirmatively state that Smiley did not suffer a work-related injury. I do not find these two purported statements to be substantial credible evidence to support reversing the AJ’s finding.

¶21. The Mississippi Supreme Court has held that in worker’s compensation cases, “doubtful cases are to be resolved in favor of compensation so that the beneficial purposes of the act may be achieved.” Meridian Prof'l Baseball Club v. Jensen, 828 So.2d 740, 744-45 (¶ 10) (Miss.2002). I find this to be such a case. Accordingly, I would reverse the Commission’s denial of Smiley’s claim.

      . The full letter stated:
      If you are disabled and cannot work[,] then you will need to report to [Hercules] ... to fill out the proper forms for [workers’ compensation.] You would also be required to be examined by the physician at Baptist Occupational] Health Facility in Pearl. This is all proper procedure when any employee desires to file a claim on [workers’ compensation]. After [filing] this claim[,] you would need to keep in touch with [Shelley] at [Hercules] ... at least [two] or [three] times a week to report about your condition.
      If you are not disabled and can work, you are required to report to work at Hercules ... immediately.


author: THOMPSON, Presiding Judge.

text:
    Anita D. DAVIS and Catherine Nall v. BAYVIEW LOAN SERVICING, LLC, et al.
    2120073.
    Court of Civil Appeals of Alabama.
    June 7, 2013.
    Bill Thomason of Thomason Law, Bessemer, for appellants.

      Thomas A. Woodall, Barry A. Ragsdale, Christopher A Bottcher, and B. Ashten Kimbrough of Sirote & Permutt, P.C., Birmingham, for appellees.
   THOMPSON, Presiding Judge.

Anita D. Davis and Catherine Nall (“the plaintiffs”) appeal from a summary judgment entered in favor of Bayview Loan Servicing, LLC (“Bayview”), Interbay Funding, LLC (“Interbay”), and M & T Bank (“M & T”).

Athough the grounds the plaintiffs assert in support of their appeal of the summary judgment are procedural, a brief explanation of the facts is helpful to an understanding of the issues on appeal. The plaintiffs borrowed money from In-terbay and signed a promissory note and a mortgage in favor of Interbay in October 2004. The property secured by the mortgage is not residential property. In 2005, Interbay assigned the note and the mortgage to Bayview. M & T serviced the loan after it was assigned to Bayview. Bayview and M & T are hereinafter referred to collectively as “the Bayview parties.”

In the spring of 2009, the plaintiffs received an offer to purchase the property that was secured by the mortgage. Apparently, the plaintiffs had difficulties obtaining the payoff amount of the balance of the note, and, in June 2009, they filed a civil action against the Bayview parties and Interbay, alleging various tort claims such as negligence, wantonness, slander of title, and the tort of outrage. They also sought injunctive relief. The plaintiffs stopped making payments on the mortgage in August 2009.

The relevant procedural history includes the following. On May 16, 2011, Interbay and the Bayview parties filed a motion for a summary judgment as to all the plaintiffs’ claims against them. The next day, May 17, 2011, the Bayview parties filed a motion seeking an order requiring the plaintiffs to pay into court the monthly mortgage payments on the property as those payments came due. A hearing on the pending motions was scheduled for August 4, 2011.

On August 2, 2011, the plaintiffs filed their opposition to the motions. In their opposition, they appeared to argue that the Bayview parties should have filed a compulsory counterclaim and presented evidence indicating that they were in possession of the note if they expected to recover the unpaid mortgage payments. The plaintiffs also stated: “Despite the foregoing, the Plaintiffs agree to the entry of a final judgment of dismissal.” The same day, Interbay and the Bayview parties filed a motion asking that, in light of the plaintiffs’ statement that they “expressly ‘agree[d] to the entry of a final judgment of dismissal,’ ” the trial court enter a final summary judgment in their favor, dismiss the action with prejudice, and cancel the August 4, 2011, hearing “on all pending motions” as moot.

The August 4, 2011, hearing was conducted as scheduled on the Bayview parties’ motion seeking to require the plaintiffs to pay funds into the court. After the hearing, the trial court entered an order asking the parties to brief the issue. On August 5, 2011, the plaintiffs filed a motion asking the trial court to dismiss the action with prejudice. On September 2, 2011, after the briefs on the issue of the propriety of paying funds into the court had been submitted, the Bayview parties filed a motion for leave to assert a counterclaim. A copy of the counterclaim was attached to the motion as “Exhibit 1.” In the motion, the Bayview parties asserted that, at the time the plaintiffs had filed the action against them, the plaintiffs were not in arrears on their mortgage payments; therefore, the Bayview parties asserted, they had no basis at that time for asserting a counterclaim against the plaintiffs. However, since filing the complaint, the Bayview parties said, the plaintiffs’ account had become delinquent. The Bay-view parties asserted that, at the August 4, 2011, hearing, the plaintiffs had advanced the position that, in the absence of a counterclaim by the Bayview parties, the plaintiffs could avoid their debt and retain the property, unencumbered by a mortgage. The Bayview parties contended that such a result would be inequitable. They indicated that they intended to commence foreclosure proceedings regarding the property secured by the mortgage. Therefore, the Bayview parties said, they desired to assert a counterclaim seeking a judgment declaring that they were entitled to pursue the remedies for default set forth in the note and the mortgage, including foreclosure.

On October 28, 2011, the trial court granted the Bayview parties’ request for leave to assert a counterclaim and ordered that the plaintiffs respond to the counterclaim no later than November 21, 2011. On November 22, 2011, the Bayview parties filed a supplement to their pending motion for a summary judgment, asserting that they were entitled to a summary judgment in their favor on their counterclaim.

On February 16, 2012, the plaintiffs filed an objection to the Bayview parties’ supplemental motion for a summary judgment, pointing out, among other things, that no counterclaim had ever been filed. On February 17, 2012, the trial court entered a summary judgment in favor of Bayview, Interbay, and M & T. The plaintiffs filed a postjudgment motion, in which they again pointed out that no counterclaim had been filed. On March 22, 2012, without seeking leave of the trial court, the Bayview parties filed their counterclaim, with exhibits attached, and paid the appropriate filing fee. On June 4, 2012, the trial court denied the plaintiffs’ postjudgment motion. The plaintiffs’ appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

This court’s clerk’s office reinvested the trial court with jurisdiction until December 17, 2012, to consider and enter, if it chose, a final judgment addressing all claims and forms of relief requested. On December 12, 2012, the trial court explicitly granted the Bayview parties’ supplemental motion for a summary judgment on their counterclaim for a declaratory judgment, stating that it had intended for the February 17, 2012, summary judgment to encompass the Bayview parties’ counterclaim. The trial court stated that the plaintiffs had breached the terms of the note and the mortgage and that the Bayview parties were entitled to pursue foreclosure of the property and any other remedies available under the terms of the note and the mortgage. In response, the plaintiffs filed a post-judgment motion challenging the trial court’s granting declaratory relief. The postjudgment motion was denied, and the appeal proceeded.

On appeal, the plaintiffs contend that the declaratory judgment entered in favor of the Bayview parties on their counterclaim is void because, they say, the trial court lacked subject-matter jurisdiction over that claim. Specifically, the plaintiffs argue that, pursuant to Rule 41(a)(l)(ii), Ala. R. Civ. P., this action was automatically dismissed in August 2011, before the Bayview parties sought leave to file the counterclaim.

Rule 41(a)(1)(H), Ala. R. Civ. P., provides that, subject to certain rules and statutes not applicable in this case, “an action may be dismissed by the plaintiff without order of court ... (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action.”

“ ‘The purpose of Rule 41(a) is to facilitate voluntary dismissals but to limit them to an early stage of the proceedings before issue is joined.’ Rule 41 (Committee Comments on 1978 Adoption) (emphasis added). If the conditions of Rule 41(a)(1) are satisfied, dismissal is automatic, that is, ‘[n]o order of the court is required- [and] the notice [of dismissal] terminates the action. ...’ 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2363, at 439-41 (3d ed.2008) (footnotes omitted) (commenting on Fed.R.Civ.P. 41(a)(1)); see also Greene v. Town of Cedar Bluff, 965 So.2d 773, 777-79 (Ala.2007). Dismissal under Rule 41(a)(1) is a question of law and, therefore, is reviewable de novo. See Matthews v. Gaither, 902 F.2d 877, 879 (11th Cir.1990) (reviewing Rule 41, Fed.R.Civ.P.).
“On the other hand, if the conditions of Rule 41(a)(1) are not met, ‘ “voluntary dismissal can only be upon court order [under Rule 41(a)(2) ] and the court is given broad powers to prevent harassment of or inconvenience to the defendant by an arbitrary dismissal at this advanced stage of the case.” ’ Milliken v. South Realty Co., 628 So.2d 928, 930 (Ala.Civ.App.1993) (quoting Committee Comments on 1973 Adoption of Rule 41). See Rule 41(a)(2) (‘Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper.’).”

Riverstone Dev. Co. v. Nelson, 91 So.3d 678, 681 (Ala.2012).

The plaintiffs assert on appeal that “all parties clearly and unequivocally consented to dismissal of all pending claims with prejudice.” The plaintiffs appear to contend that their agreeing to the entry of a “final judgment of dismissal” in their opposition to the Bayview parties’ motion seeking that mortgage payments be paid into court, combined with Interbay’s and the Bayview parties’ request in their motion for a summary judgment that the action be dismissed, constituted a joint stipulation of dismissal between the parties. The plaintiffs’ contention is not supported by the record on appeal, however.

In the motions they filed with the trial court, the plaintiffs never suggested that the parties had agreed to a stipulation of dismissal. A stipulation of dismissal of the case does not appear in the record. In their August 2, 2011, motion for the entry of a summary judgment, Interbay and the Bayview parties did not agree to merely dismiss the case; instead, they requested a summary judgment in their favor and the dismissal of the action in light of the plaintiffs’ agreement to “the entry of a final judgment of dismissal.” Clearly, a request for a summary judgment in their favor cannot be construed as an agreement to dismiss the action, as the plaintiffs have advanced. Moreover, the trial court held further proceedings, including a hearing on the Bayview parties’ motion to have the plaintiffs pay money into court, indicating that it did not consider the parties’ statements to be a stipulation of dismissal.

We agree with the Bayview parties that a stipulation of dismissal was not filed in this case. Therefore, there was no automatic dismissal of the action in August 2011, and the trial court did not lose jurisdiction over the action at that time.

The plaintiffs also contend, however, that the Bayview parties’ counterclaim was not properly filed until 34 days after the initial summary judgment in favor of the Bayview parties was entered on February 17, 2012. Therefore, they argue, there was no' counterclaim pending before the court when it purported to enter a judgment in favor of the Bayview parties.

The Bayview parties assert that when the trial court entered the order on October 28, 2011, granting them leave to file the counterclaim and ordering the plaintiffs to respond by a certain date, “the trial court implicitly deemed the counterclaim to have been filed on October 28, 2011.” The Bayview parties do not cite any authority for their contention, and this court has been unable to find any authority allowing an “implicit” filing of a counterclaim.

Rule 5(e), Ala. R. Civ. P., provides, in pertinent part:

“The filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event, the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk.”

Furthermore, we can find no authority for the proposition that attaching a counterclaim as an exhibit to a motion for leave to file a counterclaim constitutes a “filing” of that counterclaim. Our research has not produced any authority by which we can conclude that the Bayview parties had filed a counterclaim in this action at the time the trial court entered the judgment of February 17, 2012. Therefore, we conclude that the trial court did not have jurisdiction over the purported counterclaim when it entered that judgment.

As mentioned, when the plaintiffs appealed from the February 17, 2012, summary judgment, this court’s clerk’s office reinvested the trial court with jurisdiction to enter a “final judgment” addressing all claims and forms of relief requested. In response, on December 10, 2012, the trial court entered what was purported to be a “final judgment,” stating that it had intended for the February 17, 2012, summary judgment to encompass the Bayview parties’ counterclaim. However, we have already concluded that there was no counterclaim before the court at the time the February 2012 summary judgment was entered.

On appeal, the Bayview parties argue that because they had filed their purported counterclaim and paid the filing fee before the entry of the December 10, 2012, “final judgment,” they had cured any deficiency that may have existed at the time the February 2012 judgment was entered. In support of their contention, the Bayview parties cite Espinoza v. Rudolph, 46 So.3d 403 (Ala.2010).

Espinoza is distinguishable from the instant case. In Espinoza, before the entry of the judgment, a counterclaim was filed with the court’s clerk; however, the filing fee had not been paid. Our supreme court held that the trial court could properly “reinstate” the counterclaim upon payment of the docketing fee. Id. at 414. In this case, however, the counterclaim itself was not filed until after the judgment was entered in the plaintiffs’ action. The failure to file a counterclaim is not comparable to the failure to pay a docketing fee upon the filing of a counterclaim.

This court has previously held that a party cannot file a counterclaim or amend a complaint on remand. In Ex parte M.C. Dixon Family Partnership, LLLP, 993 So.2d 447, 450 (Ala.Civ.App.2006), this court issued a writ of mandamus instructing the trial court to vacate its order granting leave for Envision to amend its pleadings in the case to add a new counterclaim, reasoning that “[t]he philosophy favoring finality of judgments dictates that Envision should not be allowed to amend its pleadings on remand to assert a counterclaim.” See also Eskridge v. Allstate Ins. Co., 855 So.2d 469, 473 (Ala.2003) (quoting Karagan v. Bryant, 537 So.2d 10, 11 (Ala.1988), quoting in turn other authorities) (emphasizing that “““the liberal amendment policy of Rule 15(a)[, Ala. R. Civ. P.,] [is not] to be employed in a way that is contrary to the philosophy favoring finality of judgments and the expeditious termination of litigation’ ” ’ ”); Karagan v. Bryant, supra (holding that a defendant in an action to redeem property from a tax sale was barred from asserting on remand a counterclaim for the value of improvements made to the property); and Costellos v. Jebeles, 406 So.2d 393 (Ala.1981) (party not allowed on remand to file an amended counterclaim setting out new claims).

Although the Bayview parties filed their purported counterclaim before the trial court was reinvested with jurisdiction for the entry of a “final judgment,” the rationale of the authorities cited above applies in this case. Once a judgment has been entered in a case, a party cannot be permitted to file a counterclaim in the same matter. To do so would deprive the party opposing the counterclaim of the opportunity to respond to the counterclaim. Accordingly, we conclude that the Bayview parties’ counterclaim, filed after the entry of the judgment in this matter, was a nullity.

For the reasons set forth above, we conclude that the trial court never had jurisdiction over the Bayview parties’ counterclaim. Accordingly, to the extent that the summary judgment purported to grant a declaratory judgment in favor of the Bayview parties on their counterclaim, the judgment is void.

Because we find that the judgment in favor of the Bayview parties on their counterclaim is void, we pretermit discussion of the plaintiffs’ contention that the trial court erred in considering the Bayview parties’ supplemental motion for a summary judgment.

Because we hold that there was no joint stipulation of dismissal filed before the entry of the trial court’s February 2012 summary judgment, we affirm that portion of the judgment in favor of Inter-bay and the Bayview parties on the plaintiffs’ claims against them. That portion of the judgment purporting to grant a declaratory judgment in favor of the Bayview parties on their counterclaim is void. Because a void judgment will not support an appeal, we must dismiss the appeal as to the judgment entered on the counterclaim. Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008). In doing so, however, we instruct the trial court to vacate its void judgment. See Alabama Dep’t of Envtl. Mgmt. v. Friends of Hurricane Creek, 114 So.3d 47, 55 (Ala.Civ.App.2012).

AFFIRMED IN PART; APPEAL DISMISSED IN PART WITH INSTRUCTIONS.

PITTMAN, THOMAS, and DONALDSON, JJ., concur.

MOORE, J., concurs in the result, without writing.

      . In Espinoza, our supreme court distinguished between the consequences of failing to pay a filing fee upon the filing of a complaint, which is jurisdictional, § 12-19-70(a), Ala.Code 1975, and the failure to pay a docketing fee upon the filing of a counterclaim — a deficiency that can be cured. Espinoza, 46 So.3d at 414.


author: JOINER, Judge.

text:
    G.V.C. v. STATE of Alabama.
    CR-11-0476.
    Court of Criminal Appeals of Alabama.
    June 7, 2013.
    Marcus T. Foxx, Mobile, for appellant.
    Luther Strange, atty. gen., and Marc Alan Starrett, asst. atty. gen., for appellee.
   JOINER, Judge.

G.V.C. was tried on a single-count indictment charging first-degree sexual abuse, see § 13A-6-66, Ala.Code 1975, and was subsequently convicted. G.V.C. now appeals, arguing that a discrepancy between the indictment and the jury-verdict form— along with the trial court’s subsequent correction of the verdict form — require reversal of his conviction. We affirm.

In November 2011, G.V.C. was tried by way of a single-count indictment charging first-degree sexual abuse; specifically, the indictment charged that G.V.C. “did knowingly subject M.S. to sexual contact, to-wit: by fondling her breast with [his] hands, while the said M.S. was incapable of giving consent by reason of [being] physically helpless.” (C. 21.) At the beginning of jury selection, the trial court read the indictment charging first-degree sexual abuse to the jury. (R. 15.) Following jury selection, the trial court explained the trial process to the jury and again informed the jury that the sole issue was “sexual abuse in the first degree” where “the victim is incapable of consent”; likewise, the trial court advised the jury that it would be instructed on “beyond a reasonable doubt and sexual abuse in the first degree” at the conclusion of trial. (R. 39-40.)

During its opening statement, the State discussed the elements of “sex abuse in the first degree” and the evidence it intended to present in support of the charge. (R. 43.) Likewise, in closing, the State argued that it had “met all the elements in the case” and urged the jury to convict G.V.C. “of sex abuse in the first degree.” (R. 160.) Similarly, during his closing argument, G.V.C.’s attorney discussed “sex abuse.” (R. 174.)

At the conclusion of trial, the jury was charged on first-degree sexual abuse. Specifically, the trial court charged the jury as follows:

“I’m going to charge you as to what is sexual abuse in the first degree, which is what he’s charged with. And you remember I read the indictment to you at the first and this is what it is. A person commits the crime of sexual abuse in the first degree if he subjects another person to sexual contact who is incapable of consent by reason of being physically helpless. To convict the State must prove beyond a reasonable doubt each of the following elements of sexual abuse in the first degree; number one, that the Defendant [G.V.C.] subjected [M.S.] to sexual contact, and that'[M.S.] was incapable of consent by reason of being physically helpless, and the Defendant must have acted knowingly, intentionally.”

(R. 185-86.)

Following the jury instructions, the trial court addressed the verdict form the jury would use to announce its decision; before giving the form to the jury, the trial court explained the two options on the form, stating that “[t]he first one says we find the Defendant guilty of sexual abuse in the first degree as charged in the indictment and signed by the foreman or we find the Defendant not guilty signed by the foreman.” (R. 187.)

The record indicates, however, that the trial court’s description of the verdict form to the jury was inaccurate. The verdict form, in fact, had the following two options: “We, the jury, find the defendant [G.V.C.] GUILTY of Sexual Assault 1st Degree as charged in the indictment” (emphasis added) or “We, the jury, find the defendant [G.V.C.] NOT GUILTY.” (C. 22.) The form was returned by the jury and read by the foreman in open court. (C. 22.) The trial court subsequently polled and discharged the jury.

Later on that same day, the trial court— recognizing that the verdict form referenced “sexual assault 1st degree” and not first-degree sexual abuse — sua sponte entered an order setting a hearing to correct the verdict form. (C. 13.) At the hearing, the following occurred:

“THE COURT: Now, [the State] is here. [Defense counsel] is here and [G.V.C.] ... is here, bring him out. Now, you know here, we even have the instigator of all this here. We tried the case for sex abuse, we charged on sex abuse, y’all argued on sex abuse and I feel like it was a typographical error that the verdict form said sexual assault, and that’s wrong.
“[Defense counsel]: Yes, sir.
“THE COURT: Now, I think that Rule 29, Rules of Criminal Procedure, allows me to correct that but I want to hear from you, if you disagree or object, which I’m sure you do, and I’ll hear from [State’s attorney] and then I will make my decision.”
“[Defense counsel]: Yes, sir, Judge. We would object to changing the verdict form. When the jury went back they had a sexual assault first degree, that’s what they were looking at and that’s what they had to have discussed was sexual assault. They didn’t come out and ask a question why did you charge us on this and give us this verdict form, they didn’t do that. They just simply returned the verdict form. I think it’s very misleading because assault is different from abuse and the jury but of course anybody can understand an assault. Sexual abuse you might have to explain that but sexual assault you wouldn’t. So I would object to changing the verdict form at this late date and ask the Court for a new trial.
“THE COURT: I know. And I see exactly — I think we all see what has happened here, we all see there is a real issue here—
“THE COURT: — -and it will be probably be resolved by higher authority. So I’m going to allow the amendment. [State’s attorney], I want you to prepare a short order for me to sign and be sure and let [defense counsel] see it and when he says it’s okay then I’ll sign it. Then we’ll have the sentencing which is sometime that’s when we’ll see what we’re going to do and then we will take it up from there. Thank you both very much.”

(R. 195-96,199-200.)

Following the hearing, the trial court entered the following written order:

“The above-styled case came for trial on November 16, 2011, [G.V.C.] having been duly indicted and arraigned on the charge of Sex Abuse in the 1st Degree. The State of Alabama ... and [G.V.C.] ... presented evidence as to Sex Abuse in the 1st Degree. The respective parties did their respective closing arguments as to the charge of Sex Abuse in the 1st Degree. The Court instructed the jury on the charge of Sex Abuse in the 1st Degree. However, due to a mistake or inadvertence, the verdict form provided to the jury gave the jury the option of finding the defendant guilty or not guilty of ‘sexual assault in the 1st degree.’ The jury returned the verdict of guilty of ‘sexual assault in the 1st degree.’ When polled, each member of the jury confirmed that was their verdict.
“Notice of the clerical error was made to the State and [G.V.C.’s] Counsel. The Court notified the State and [G.V.C.’s] Counsel of its intention to correct the verdict form pursuant to [Rule 29, Ala. R.Crim. P.,] in open court on November 29, 2011.
“The Court, on its own motion, finds that the jury verdict form contained a clerical mistake arising from oversight or omission and must be corrected to conform to the indictment, the evidence, and the jury instructions. The corrected verdict form reads as follows: ‘We the jury find the Defendant, [G.V.C.], guilty of Sex Abuse in the 1st Degree as charged in the indictment.’ ”

(C. 17.)

On appeal, G.V.C. argues that the verdict returned by the jury — finding G.V.C. guilty of “first-degree sexual assault” for which there is no statutory provision in the Code of Alabama 1975 — is a nullity and, further, that the trial court erred when it corrected the verdict form. In response, the State asserts that these issues are not preserved and, further, that these issues are without merit.

The issues presented to this Court relate only to questions of law and thus are reviewed de novo. See Ex parte Lamb, 113 So.3d 686 (Ala.2011).

As a threshold matter, the State asserts that G.V.C.’s appellate claims are not preserved for appellate review. (State’s brief, p. 11.) Our caselaw—although predating Ex parte Seymour, 946 So.2d 536, 538 (Ala.2006) — suggests that the issues presented by G.V.C. on appeal are nonwaiva-ble. See Bradford v. State, 948 So.2d 574, 582-83 (Ala.Crim.App.2006) (sua sponte addressing the propriety of a verdict finding a defendant guilty of “reckless endangerment” when the defendant was actually charged with “reckless driving”); Tinker v. State, 932 So.2d 168, 176 (Ala.Crim.App.2005) (addressing “the issue of the discrepancy between the offense charged ... and the verdict” even though not raised on appeal, because the issue “implicates the jurisdiction of the trial court to pronounce judgment on the verdict”); Pittman v. State, 621 So.2d 351, 352 (Ala.Crim.App.1992) (addressing an improper-verdict-form argument, even though it was not raised when the verdict form was given to the jury, and recognizing that the claim relates to the jurisdiction of the trial court to impose judgment).

Moreover, we note that the trial court sua sponte raised this issue and, thus, that the issues surrounding the verdict form— including the discrepancy issue and the amendment of the verdict by the trial court — were clearly before the trial court. See generally Johnson v. State, 500 So.2d 69, 72 (Ala.Crim.App.1986) (“The primary purpose of objections is not to ‘preserve error’ for appellate review. Their primary purpose is to give the trial court an opportunity to correct that which might otherwise have been error.”).

Nevertheless, because we are affirming, we need not decide whether this issue was preserved or address whether it is non-waivable. Accordingly, we address G.V.C.’s claims.

I.

G.V.C. first argues that the jury verdict returned in this case — convicting him of first-degree “sexual assault” — is a nullity and that he is entitled to a new trial. We disagree.

In Edwards v. State, 570 So.2d 252, 252-54 (Ala.Crim.App.1990), Edwards was indicted and tried on two counts of distribution of marijuana; the verdict forms submitted to the jury, however, allowed only a guilty or not-guilty finding on the offense of “possession of marijuana,” which, in that case, was not a lesser-included offense. The jury returned guilty verdicts, and Edwards was subsequently adjudicated guilty and was sentenced on the verdicts; Edwards then appealed.

After noting that the verdict and indictment “impermissibly varied” and, further, after discussing the indictment and lesser-included offenses, this Court stated:

“ ‘The verdict in a criminal case must be responsive to the offense charged in the indictment, but surplusage can be disregarded if the intent of the jury is clear. A jury verdict will be held to be sufficient if its meaning can be reasonably ascertained from the words used. Where the error in the charge is in the form of the verdict and there is not prejudice to the rights of the accused the error is harmless.’ ”

Edwards, 570 So.2d at 253-54 (quoting Peterson v. State, 508 S.W.2d 844, 849 (Tex.Crim.App.1974)). This Court, applying the language from Peterson — that a jury verdict is sufficient when its meaning can be reasonably ascertained from the words used in a verdict form and, further, that, where there is no prejudice to the rights of the accused, any error is harmless — stated:

“In the present case, the jury’s verdict was not responsive to the offense charged in the indictment and the jury’s intent is not clear; therefore, the language stating that the appellant was found guilty of ‘possession of marijuana’ cannot be held to be surplusage.”

Edwards, 570 So.2d at 254. Following this analysis, this Court concluded by holding:

“Because [Edwards] was charged with the unlawful sale of a controlled substance but was convicted, pursuant to the jury verdict forms, of the possession of marijuana, where the latter could not be a lesser included offense of the former, the judgment is due to be reversed and the cause remanded for a new trial.”

570 So.2d at 254.

G.V.C. reads Edwards for the proposition that “where the offense erroneously judged upon cannot be construed as a lesser-included offense, judgment is due to be reversed” and asserts that, in this case, “[a] conviction based upon the verdict form notation of ‘Sexual Assault First Degree’ cannot be conceived as a lesser-included offense of ‘Sexual Abuse First Degree,’ because the offense doesn’t exist.” (G.V.C.’s brief, p. 11.) We do not read Edwards so broadly.

Edwards does not, as G.V.C. asserts, stand solely for the proposition that “when an offense cannot be contemplated as a lesser-included offense of the former, the judgment is due to be reversed.” (G.V.C.’s brief, p. 12.) Although this Court held that Edwards’s conviction for possession of marijuana could not stand when it was not a lesser-included offense, this conclusion was reached only after this Court applied the language in Peterson regarding harmless error and discerning the intent of the jury from its verdict.

In Pittman, 621 So.2d 351, 352 (Ala.Crim.App.1992), the defendant argued on appeal that he was entitled to a new trial because of an improper verdict form. In that case, Pittman was charged with attempted murder, and, at the conclusion of trial, the trial court charged the jury on both “attempted murder” and the “intent to commit murder.” Id. “The verdict form submitted to the jury[, however,] contained a charge of ‘intent to commit murder’ rather than ‘attempted murder.’ ” Id. The jury returned a guilty verdict on the “intent to commit murder” verdict form, and, after attempting to correct the discrepancy, the trial court entered a judgment of conviction against Pittman. Pittman, 621 So.2d at 352.

This Court held that “the [trial] court was without jurisdiction to pronounce judgment on the verdict finding the defendant guilty of ‘intent to commit murder’ ” because, “[although ‘intent’ to commit a crime is a necessary element within any ‘attempt’ statute, it is not, in and of itself, a crime to possess intent.” 621 So.2d at 352-53. The Pittman Court appeared to be concerned that, by allowing a conviction on the guilty verdict for “intent to commit murder,” the trial court had “modified], ehange[d], or alter[ed] the statutes of the State of Alabama.” 621 So.2d at 352 (internal quotation marks omitted).

According to G.V.C.’s reading of Pittman, “[t]his Court held that where there were some analogous elements between the indictment and the erroneous listed offense, it was not in and of itself, a crime” and “[h]ence, the court was without jurisdiction to pronounce judgment on the verdict finding the defendant guilty of ‘intent to commit murder.’ ” (G.V.C.’s brief, p. 14.) We agree with this reading of Pittman, but we disagree that it is applicable to G.V.C.’s case.

This Court in Pittman concluded that the trial court was without jurisdiction to enter a judgment on a verdict where the verdict was nothing more than a finding of guilty of an element of the charged offense; as the Pittman Court noted, the trial court may not change the law and convict a defendant on less than the required statutory elements. In this case, however, we have no such issue. Unlike the defendant in Pittman, the jury in this case did not return a verdict on a mere element of the offense.

As Edwards recognized, this Court reviews the intent of the jury to determine the sufficiency of the jury’s verdict. In Tinker, Tinker was charged with conspiracy to traffic in cocaine; the verdict forms, however, allowed only a guilty or not-guilty decision on trafficking in cocaine. 932 So.2d at 175-76. The jury returned a guilty verdict, and Tinker was adjudicated guilty and was sentenced based on the verdict; Tinker then appealed.

In our opinion reversing Tinker’s conviction, this Court, relying on Edwards and Pittman, concluded:

“[Although the trial court’s charge to the jury properly contained an instruction regarding trafficking in cocaine in order to assist the jury in determining whether Tinker was guilty of conspiracy to traffic in cocaine, it is conceivable that a layperson on the jury could have easily construed the instructions as requiring the jury to determine whether Tinker was guilty of trafficking in cocaine, especially since the verdict form provided to the jury gave the jury two choices on count 1 — that the jury could find Tinker either guilty or not guilty of ‘trafficking cocaine, as charged in count one of the indictment.’ Thus, under the facts of this case, the jury’s intent is unclear.”

Tinker, 932 So.2d at 177 (emphasis added). Accordingly, because the intent of the jury was not clear from the verdict form, this Court reversed Tinker’s conviction and his sentence. Tinker, 932 So.2d at 178.

In Bradford — a case G.V.C. does not acknowledge or address — this Court applied Tinker to address a verdict-form-diserepancy issue. 948 So.2d 574 (Ala.Crim.App.2006). In that case, Bradford was indicted for, among other things, reek-less driving; throughout trial, however, the charge was referenced nearly exclusively as “reckless endangerment,” a different offense. Id. at 581. Notably, the jury charge — although providing the correct statute — referenced the crime as “reckless endangerment,” and the jury-verdict form referenced “reckless endangerment” instead of “reckless driving.” Id. at 581-82.

On appeal, Bradford argued that his one-year sentence for reckless driving exceeded the statutory maximum and that his sentence was therefore illegal; this Court addressed the verdict-form-discrepancy issue to establish whether Bradford was convicted of reckless endangerment— which would permit a one-year sentence— or of reckless driving — for which the punishment may not exceed six months. Regarding the discrepancy, this Court concluded that the intent of the jury was clear, stating as follows:

“The jury was never instructed on the elements of reckless endangerment, as set out in § 13A-6-24, Ala.Code 1975.... Rather, the jury was instructed only, on the elements that constitute the offense of reckless driving, i.e., the offense for which Bradford was indicted. Thus, the erroneous reference on the verdict form to the charge as reckless endangerment does not draw the jury’s intent into question, because the jury could not have found Bradford guilty of an offense as to whose elements it had not been instructed. Clearly, the jury in this case found Bradford guilty of violating § 32-5A-190, Ala.Code 1975, because those were the only elements given in that charge.”

Bradford, 948 So.2d at 582-83.

Unlike Tinker, where the intent of the jury was unclear, the facts in this case indicate that, “[cjlearly, the jury in this case found [G.V.C.] guilty of violating § [13A-6-66], Ala.Code 1975, because those were the only elements given in that charge.” Bradford, 948 So.2d at 583.

Regarding this jury-intent analysis, G.V.C. asserts only that “a verdict explanation would require some clarification on the part of the jury, thereby rendering their intent unclear.” (G.V.C.’s brief, p. 13.) We disagree. Here, the sole issue charged in the indictment was first-degree sexual abuse, and there was no lesser-included offense to confuse the jury; the sole issue discussed by the judge and attorneys at trial was first-degree sexual abuse; the jury was charged without objection on first-degree sexual abuse; the trial court informed the jury that it would be returning a verdict on first-degree sexual abuse; and, finally, the verdict form and the indictment differed by only one word. In light of these facts, we conclude that the intent of the jury’s guilty verdict — which was limited to a single issue clearly presented to the jury — is clear.

II.

As discussed above, the trial court, following a hearing, corrected the jury’s verdict to reflect its intent. G.V.C. argues, however, that the trial court was without authority to do so. We disagree.

As a threshold matter, we question whether the jury-verdict form needed to be corrected. In Edwards, this Court clearly recognized that “ ‘[a] jury verdict will be held to be sufficient if its meaning can be reasonably ascertained from the words used. Where the error in the charge is in the form of the verdict and there is not prejudice to the rights of the accused the error is harmless.’ ” Edwards, 570 So.2d at 253-54 (quoting Peterson, supra). In Bradford, the trial court entered judgment on the jury-verdict form reading “reckless endangerment,” instead of “reckless driving.” Bradford, supra. According to this logic, as well as the holding of Edwards, subsequent judgment on an imperfect verdict form that nonetheless clearly evidences the intent of the jury is acceptable; to hold otherwise would call into question the necessity of assessing “intent” in jury-verdict-discrepancy issues. See Tinker, 932 So.2d at 177 (“Thus, under the facts of this case, the jury’s intent is unclear.”) Accordingly, any error in correcting the verdict form to read “abuse” instead of “assault” was harmless, because the trial court could have entered a judgment without making that correction. Rule 45, Ala. R.App. P.

Regarding clerical mistakes, the Alabama Rules of Criminal Procedure state:

“Clerical mistakes in judgments, orders, or other parts of the record, and errors arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be so corrected by the trial court.”
Rule 29, Ala. R.Crim. P.
“The committee comments to Rule 29 state that Rule 29 is taken directly from Rule 60(a), Ala. R. Civ. P. Because Rule 29 is taken directly from Rule 60(a), Ala. R. Civ. P., cases construing Rule 60(a) should be examined to determine the proper construction to be placed on Rule 29. See H. Maddox, Alabama Rules of Criminal Procedure, § 29.1, p. 919 (2d ed.1994).”

Dollar v. State, 687 So.2d 209, 210 (Ala.1996).

“The term ‘clerical errors’ is not limited solely to errors by the clerk in transcription. It can also include errors by others, such as & jury foreman, counsel, a party, or the judge himself” Continental Oil Co. v. Williams, 370 So.2d 953, 954 (Ala.1979), overruled on other grounds, Ex parte Cincinnati Ins. Cos., 806 So.2d 376 (Ala.2001).

G.V.C. argues, however, “a clerical error under the law cannot be one that involves judicial reasoning, a mistake of fact, or a modification of an original judgment” and that “to change a jury’s verdict, whether in written or oral form, is unavoidably a substantial change, not a mere correction of a clerical mistake.” (G.V.C.’s brief, pp. 10-11.) In support of this argument, G.V.C. relies on Ex parte Lamb, supra.

In Ex parte Lamb, the trial court attempted to formally adjudicate guilt on the jury’s verdict, at which point the trial court “noticed that the verdict form for count II ... was signed by the jury foreman as ‘not guilty’ — as opposed to what the foreman had orally announced in open court— ‘guilty.’” 113 So.3d at 687-88. Following this discovery, the trial court attempted to reassemble the discharged jury, and, although the trial court was able to find only 7 of the 12 jurors, the trial court instructed the foreman to “correct” count two from “not guilty” to “guilty.” Id. at 689. The trial court then entered judgment on the revised verdict.

Addressing this issue, the Alabama Supreme Court stated:

“Undertaking to change a jury’s verdict, whether in written or oral form, is unavoidably a substantial change, not a mere correction of a clerical mistake, and such a change should have been noticed, altered, and entered on the record before the jury was discharged, the moment that ‘ends [its] consideration of the case.’ [Preferred Risk Mut. Ins. Co. v. Stuart, 395 So.2d 980, 986 (Ala.1981) ](citing [St. Clair v. Caldwell & Riddle, 72 Ala. 527 (1882)]). It is clear from the record that the trial court was not making this correction pursuant to Rule 29, Ala. R.Crim. P., because Rule 29 allows the court to make such a correction ‘at anytime of its own initiative.’ Rather, the trial court recalled seven of the discharged jurors, inquired of their intent on the record, re-polled them as to the verdict, and requested that the jury foreman make the necessary correction on the verdict form for count II.”

113 So.3d at 690.

The facts underlying Preferred Risk Mutual Insurance Co. v. Stuart, 395 So.2d 980 (Ala.1981), a case relied upon heavily by the Alabama Supreme Court in Ex parte Lamb, are quite similar. In Preferred Risk, the jury returned a verdict in favor of the plaintiffs, and the jury was discharged. 395 So.2d at 984. Following this verdict, the plaintiffs attorney spoke with one of the jurors regarding the verdict and relayed his conversation to the trial court; the trial court subsequently reempaneled the discharged jury. 395 So.2d at 983. Once reempaneled, the trial court discussed the verdict with the jury, and the jury relayed to the trial court that there was a misunderstanding. Preferred Risk, 395 So.2d at 983-84. The jury indicated that it wished to reconsider its verdict, and the trial court permitted additional deliberation; following deliberation, the jury again returned a verdict in favor of the plaintiffs but included additional damages. Id. at 986.

In both Preferred Risk and Ex parte Lamb, the Alabama Supreme Court expressed an overarching concern regarding the discharge and subsequent reempanel-ing of the jury, along with the appearance of impropriety; specifically, in Ex parte Lamb, the Alabama Supreme Court stated:

“A critical concern raised by a jury’s discharge, later recall, and subsequent rendering of a second verdict is the possibility that ‘ “any outside influence” ’ could be brought to bear on the jurors or the jurors could be ‘ “communicated with or tampered with by any person” ’ during the ‘ “very few minutes that transpired between the time of discharge and recall.” ’ Preferred Risk, 395 So.2d at 988 (quoting Masters v. State, 344 So.2d 616, 619 (Fla.Dist.Ct.App.1977)).
“At Lamb’s trial, the jury was outside the courtroom and outside the presence and supervision of any officer of the court for a few minutes between its discharge and the recall. Additionally, five members of that jury were completely unavailable and did not participate in that recall. Even if this Court were to somehow overlook the possibility of taint once this jury was formally discharged and beyond the presence and supervision of the court, a significant concern remains that five members of the discharged jury were not available to attempt to correct the inconsistent verdicts.
“An additional concern raised by the facts of this and similar cases, as this Court discussed in Preferred Risk, is the appearance of impropriety. 395 So.2d at 987. The integrity of jury verdicts and their acceptance by the society governed by them are ‘at the very root and branch of the jury system itself.’ 395 So.2d at 987. What is before us — a correction to inconsistent verdicts on a single count of an indictment by seven members of a discharged jury who had been beyond the presence and supervision of the court — certainly appears improper.”

Ex parte Lamb, 113 So.3d at 691.

Furthermore, the Alabama Supreme Court in Ex parte Lamb noted that there were double-jeopardy concerns in that case. See Ex parte Lamb, 113 So.3d at 690 (“Further, because it was a civil action, Deramus [Hearing Aid Center, Inc. v. American Hearing Aid Associates, Inc., 950 So.2d 292 (Ala.2006)], was not affected by double-jeopardy concerns. In the present case, the only entity authorized at law to determine the verdict as to count II of the indictment charging Lamb was the jury. At the moment the jury was discharged, the record contained a written verdict form stating the jury had found Lamb ‘not guilty as to count II and the trial court had polled the jurors, who indicated that they had rendered a guilty verdict as to that same count.”).

This case, unlike Ex parte Lamb and Preferred Risk, does not involve a substantive change to the jury verdict but, instead, involves the trial court’s correcting the verdict form to read “abuse” instead of “assault”; the jury was not reempaneled, and the jury did not return an additional or different verdict from the verdict originally announced. Here, the jury returned a “guilty” verdict against G.V.C. on the only issue that was before it, and its intent was clear from the verdict form, despite the fact that the jury-verdict form contained the word “assault” instead of “abuse”; likewise, because this matter involves only a guilty verdict on the only offense at issue in the case and the only offense on which the jury was charged, there are no double-jeopardy implications. To hold otherwise would be to overrule Edwards and its progeny, which no one has asked us to do, and which is not, from our reading, overruled by Ex parte Lamb.

For the foregoing reasons, we affirm the judgment of the circuit court.

AFFIRMED.

WINDOM, P.J., and WELCH, KELLUM, and BURKE, JJ., concur.

      . G.V.C. first argues that he "was deprived of his constitutional-due-process rights to be tried and convicted on the offense cited in the indictment.” (G.V.C.’s brief, p. 6.) In support of this argument, G.V.C. relies exclusively on Gayden v. State, 262 Ala. 468, 469, 80 So.2d 501, 502 (1955). Gayden, however, addresses the sufficiency of an indictment charging controlled-substances crimes; G.V.C., however, is not truly challenging the sufficiency of his indictment — in fact, for all that appears, he has never challenged the sufficiency of the charging instrument — but instead, he is challenging the wording of the jury-verdict form. Although G.V.C. quotes Gayden for a broad proposition of law, it is inapposite to the outcome of this case, and we do not address it.

      . G.V.C. also relies on Franklin v. State, 23 So.3d 694 (Ala.Crim.App.2008), in support of reversal of his conviction. (G.V.C.’s brief, p. 15.) In Franklin, this Court addressed a verdict-discrepancy claim. 23 So.3d at 697. The portion of that opinion addressing the verdict-discrepancy claim — II.B.—received no concurring votes, and the four votes concurring in the result — which included two special writings — offered differing rationales for reversal on that claim. See Franklin, 23 So.3d at 705. Accordingly, any reliance on Franklin — with respect to the verdict-discrepancy claim — is misplaced. See generally Ex parte Discount Foods, Inc., 789 So.2d 842, 845 (Ala.2001) ("The precedential value of the reasoning in a plurality opinion is questionable at best.”).

        .See § 13A-6-24, Ala.Code 1975 ("A person commits the crime of reckless endangerment if he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.”). Reckless endangerment is a class A misdemeanor.

      . See §§ 13A-5-7 and 32-5A-190, Ala.Code 1975.

      . G.V.C. also argues that "the trial court in the instant case failed to act responsibly to maintain the integrity of the jury trial process.” (G.V.C.’s brief, p. 15.) In support of this assertion, G.V.C. relies on Allen v. State,
        52 Ala. 391 (1875), for the proposition that "it is the duty of the trial court, and the prosecuting officer, to look after its form and substance, so far as to prevent an unintelligible, or a doubtful, or an insufficient verdict from passing into the records of the court, to create embarrassments afterward and perhaps the necessity of a new trial.” (G.V.C.'s brief, p. 16.) Further, G.V.C. asserts that "[t]he appearance of a verdict that was entered to an offense that doesn't exist in code law is an inexcusable error” and that "the appearance of impropriety that a judge could alter a verdict without contact or input from the jury undermines the very basic foundation that any defendant would expect from the jury system.” (G.V.C.'s brief, p. 16.)
      Other than quoting Allen for broad propositions of law, G.V.C. fails to address the facts of Allen, and, although he argues that he is entitled to reversal based on Allen, G.V.C. fails to provide any rationale for this position. Accordingly, this argument is without merit.

      . For this same reason, this case is distinguishable from Ex parte T.D.M., 117 So.3d 933 (Ala.2011). In Ex parte T.D.M., a jury announced the defendant guilty of first-degree sexual abuse and not guilty of sodomy. 117 So.3d at 934. After the jury was discharged, the trial court discovered that the not-guilty verdict on the sodomy charge was not the intent to the jury. 117 So.3d at 934. The trial court then reassembled the jury, and the jury was allowed to amend its verdict. 117 So.3d at 934. As stated above, in this case, the jury clearly returned a guilty verdict on the sole issue before it.