author: BARNES, J., CARLTON, J., ISHEE, J.,

text:
    Brett Anthony SHAW a/k/a Bret Shaw a/k/a Brett Shaw a/k/a Brett A. Shaw, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01536-COA.
    Court of Appeals of Mississippi.
    Oct. 8, 2013.
    Rehearing Denied Jan. 28, 2014.
    Certiorari Dismissed May 29, 2014.

      J. Edward Rainer, Gary Lee Williams, Brandon, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   BARNES, J.,

for the Court:

¶ 1. Brett Anthony Shaw was convicted by a jury in the Rankin County Circuit Court of Count I, aggravated assault, and Count II, felony malicious mischief. He was sentenced to twenty years for Count I, with ten years suspended, and five years for Count II, followed by five years of supervised probation, all in the custody of the Mississippi Department of Corrections (MDOC). Shaw filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The motion was denied. Aggrieved, Shaw appeals. Finding no reversible error, we affirm Shaw’s convictions.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 18, 2010, Shaw, Alex Gill, Shaun Killingsworth, and Steven Dortch were among a number of people attending a party at the apartment of Hannah Hard-wick in Richland, Mississippi. Another party was also being held upstairs in the same building at the apartment of Ian Elward. Both parties involved alcohol.

¶ 3. At one point during Hardwick’s party, Shaw, Gill, and Killingsworth were outside her apartment when Gill threw an empty beer bottle in some nearby bushes. Killingsworth told him to pick up the bottle. Shaw informed Killingsworth that Gill was only seventeen years old and asked Killingsworth to leave Gill alone. Later, in Hardwick’s kitchen, a verbal altercation ensued between Shaw and Killingsworth when Shaw held up his empty beer bottle in a threatening manner. With the situation becoming confrontational, the two men were separated by Dortch and Skylar Slay, another person at the party; Shaw was then escorted from the party by Dortch.

¶ 4. Shortly after, Hunter Elward and Trevor Bell, two people attending the party at Ian’s apartment, came to Hardwick’s apartment and told Killingsworth that Shaw was jumping up and down on the hood of Killingsworth’s car. Killingsworth went outside to confront Shaw, who was still in the parking lot, standing behind the car. Angry and shouting, Shaw approached Killingsworth, who informed Shaw that he did not want to fight. As Shaw continued to yell and beat his chest, Killingsworth pushed Shaw, grabbed him, and pinned him against another car in the parking lot. Gill, who was standing nearby, demanded that Killingsworth release Shaw and proceeded to attack Killings-worth from behind. Killingsworth, keeping his hold on Shaw, turned to see who was striking him. When Killingsworth twisted back around, Shaw bit his ear.

¶ 5. With Shaw still restrained by Kill-ingsworth, the two men fell to the ground and struggled in the grass. Lieutenant David East of the Richland Police Department arrived on the scene and ordered the men to separate. Both men yielded and were handcuffed. Killingsworth was bleeding from his ear, and Lieutenant East called an ambulance to transport him to the hospital. It was later discovered that Killingsworth had lost a portion of his right ear. Shaw was uninjured.

¶ 6. Subsequently, Shaw was arrested and charged with aggravated assault, for biting off a portion of Killingsworth’s ear, and with malicious mischief, for damaging Killingsworth’s car. A trial took place on June 19-22, 2011. At the close of the trial, the jury returned a guilty verdict on both counts. Shaw was sentenced to twenty years, with ten years suspended, for the charge of aggravated assault, and five years, for the charge of malicious mischief, with the sentences to run concurrently, all to be served in the custody of the MDOC. He was also ordered to served five years of supervised probation. Shaw filed a motion for a JNOV, or in the alternative, a new trial, which was denied.

¶ 7. Shaw now appeals, arguing: (1) the trial court erred by denying his motion for a directed verdict and his motion for a JNOV, or in the alternative, a new trial because the evidence was insufficient to support the convictions of aggravated assault and malicious mischief and the jury’s verdict regarding aggravated assault was against the overwhelming weight of the evidence because he was acting in self-defense; (2) the trial court erred by allowing the State to call witnesses, including expert witnesses, in violation of discovery rules; (3) the prosecutor misconstrued the evidence and prejudiced the jury; (4) a mistrial should have been granted based on juror misconduct and an improper line of questioning; (5) teeth are not a mechanism likely to produce death or serious bodily harm; (6) the trial court erred in denying two “words of provocation” jury instructions; and (7) the cumulative errors warrant reversal.

¶ 8. Finding no error, we affirm the judgment.

DISCUSSION

I. Whether the trial court erred in denying Shaw’s motion for a JNOV, or in the alternative, a new trial.

¶ 9. Shaw contends that the trial court erred in denying his motion for a JNOV, or in the alternative, a new trial. A motion for a JNOV challenges the sufficiency of the evidence. See Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citing Carr v. State, 208 So.2d 886, 889 (Miss. 1968)). In order for the evidence to be found sufficient to sustain a conviction, the evidence must show “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Id. This Court will reverse a conviction if the evidence “point[s] in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss. 1985)).

¶ 10. A motion for a new trial challenges the weight of the evidence. Minor v. State, 89 So.3d 710, 716 (¶ 20) (Miss.Ct.App.2012). Viewing the evidence “in the light most favorable to the verdict,” a new trial will only be ordered “where ‘the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction unconscionable injustice.’ ” Id. (citations omitted).

A. Aggravated Assault

¶ 11. Mississippi Code Annotated section 97-3-7(2)(b) (Rev.2006) provides that “[a] person is guilty of aggravated assault if he ... attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm[.]” Shaw was charged with purposely or knowingly “biting a portion of Kill-ingsworth’s right ear off, a means likely to produce death or serious bodily harm.” The State was required to prove, beyond a reasonable doubt, that Shaw acted with either requisite mental state provided for in section 97-3-7(2)(b).

¶ 12. Shaw argues that the State did not put forth any evidence to support the “purposely or knowingly” elements of the charge of aggravated assault. Shaw asserts that it is reasonable that Shaw bit Killingsworth in an attempt to get Kill-ingsworth to release him and not to cause bodily injury. As such, Shaw argues that since he acted in self-defense without the intent to cause serious bodily harm, the evidence was insufficient to sustain his conviction of aggravated assault. We disagree, finding that the evidence was sufficient for the jury to conclude that Shaw intended to inflict serious bodily harm on Killingsworth.

¶ 13. As the State observes, Shaw’s intent to cause serious bodily injury can be inferred from testimony given regarding Shaw’s anger and antagonizing behavior towards Killingsworth. “Intent ordinarily must be inferred from the acts and conduct of the party and the facts and circumstances attending them.” Wales v. State, 73 So.3d 1113, 1121 (¶ 22) (Miss.2011) (citation omitted). Even if intent is not expressly evident, it may be proven “by showing the acts of the person involved at the time, and by showing the circumstances surrounding the incident.” Johnson v. State, 44 So.3d 400, 408 (¶ 24) (Miss.Ct.App.2010) (quoting Boyd v. State, 977 So.2d 329, 335 (¶ 23) (Miss.2008)). Whether a person intended to commit an act is “a question of fact to be gleaned by the jury from the facts shown in the ease.” Id. “The presumption of the law is that each person intends the natural consequences of his actions.” Staten v. State, 813 So.2d 775, 777 (¶ 8) (Miss.Ct.App.2002) (citing Hydrick v. State, 246 Miss. 448, 450—451, 150 So.2d 423, 424 (1963)). “The State must be given the benefit of all reasonable inferences that may be drawn from the evidence.” McBride v. State, 78 So.3d 359, 361 (¶ 7) (Miss.Ct.App.2011) (citing Christian v. State, 859 So.2d 1068, 1071 (¶ 12) (Miss.Ct.App.2003)). “[E]ven ‘slim’ evidence can be used to uphold a guilty verdict so long as it can reasonably be inferred to support such a finding.” Sanders v. State, 949 So.2d 92, 95 (¶ 5) (Miss.Ct.App.2006) (citation omitted).

¶ 14. Brooke Patterson, Shaw’s ex-girlfriend, testified that when the couple initially approached the party, he told her that “he was probably going to end up getting in a fight with this douchebag [ (referring to Killingsworth) ] before the night was over.” Later that evening, Shaw behaved in a threatening manner toward Killingsworth and had to be forcibly removed from the apartment to avoid further conflict. Witnesses stated it was at that point Shaw kicked and jumped on Killings-worth’s car.

¶ 15. Admittedly, both men had been arguing all evening. But, when Killings-worth confronted Shaw about damaging his car, he repeatedly told Shaw that he did not want to fight. Witnesses testified that during this confrontation, Shaw was “antagonizing” Killingsworth and beating his own chest, saying things like “Come on” and “Do something.” Killingsworth, upon this taunting, did initiate contact with Shaw by shoving him and then wrapping his arms around Shaw in an attempt to restrain him and to prevent Shaw from hitting him. However, while he was holding Shaw’s arms, Gill began hitting Kill-ingsworth on the head in an attempt to make Killingsworth let Shaw go. When Killingsworth turned his head to look at Gill, Shaw took advantage of his inattention to retaliate and bite off part of Kill-ingsworth’ s ear. Thus, the fight was essentially two against one. In fact, one witness stated Gill was swinging away so wildly that he almost hit a female bystander. Even after the fight was broken up by police, Shaw continued to be verbally belligerent and uncooperative, saying “F*ck you” to the arresting officer. Killings-worth, on the other hand, was cooperative and quiet.

¶ 16. The determination of Shaw’s intent and whether he was acting in self-defense was a question of fact to be decided by the jury. See Franklin v. State, 72 So.3d 1129, 1136 (¶ 29) (Miss.Ct.App.2011) (“[T]he question of whether a defendant acted in self-defense or in defense of others is a question for the jury to resolve.”) (citing White v. State, 976 So.2d 415, 420 (¶ 23) (Miss.Ct.App.2008)).

To make an assault justifiable on grounds of self-defense, danger to the defendant must be either actual, present and urgent, or [the] defendant must have reasonable grounds to apprehend design on the part of the victim to kill, or to do him some great bodily harm, and, in addition, there must be imminent danger of such design being accomplished.

Anderson v. State, 571 So.2d 961, 963 (Miss.1990) (citations omitted). It is apparent from the verdict the jury members determined that Shaw was not acting in self-defense and had the intent to seriously injure Killingsworth. We find there to be sufficient evidence to support this conclusion.

¶ 17. Giving the State all reasonable inferences that may be drawn from the evidence, we find the evidence is sufficient to support the verdict. We also conclude that the verdict was not contrary to the overwhelming weight of the evidence and does not sanction an unconscionable injustice.

B. Malicious Mischief

¶ 18. Shaw also argues that the evidence was insufficient to support his conviction of malicious mischief. Although Shaw argues that the jury’s verdict is against the weight of the evidence, we find that his arguments actually only address the sufficiency of the evidence. As noted previously, evidence will be deemed sufficient where it shows, beyond a reasonable doubt, that the accused committed the act and every element of the offense existed. Bush, 895 So.2d at 843 (¶ 16).

¶ 19. Shaw was convicted under Mississippi Code Annotated section 97-17-67 (Supp.2012), which provides in pertinent parts:

(1) Every person who shall maliciously or mischievously destroy, disfigure, or injure, or cause to be destroyed, disfigured, or injured, any property of another, either real or personal, shall be guilty of malicious mischief.
(3) If the value of the property destroyed, disfigured or injured is in excess of Five Hundred Dollars ($500.00), it shall be a felony punishable by a fine not exceeding Ten Thousand Dollars ($10,000.00) or imprisonment in the Penitentiary not exceeding five (5) years, or both.

Shaw contends the evidence was insufficient because the State failed to prove that he willfully damaged Killingsworth’s ear in excess of $500. We disagree.

¶ 20. Several people witnessed Shaw kicking and jumping on Killingsworth’s car. Dortch testified that after the kitchen altercation, he escorted Shaw out of Hardwick’s apartment. The two men walked in the direction of Shaw’s apartment, passing Killingsworth’s car on the way. Dortch stated that Shaw went about five meters past Killingsworth’s car, when he abruptly turned around, jumped on the hood of the car, and kicked the fender. Hunter, who was watching the incident from Ian’s balcony, corroborated this testimony. It is evident that Shaw’s actions were willful and malicious.

¶ 21. Shaw argues that damage was present on Killingsworth’s car at least four hours prior to the altercation. ■ He contends that the hood and the fender already had several dents and scratches. Although there was testimony that Killings-worth’s car had minor damage prior to the altercation, the record reflects that Shaw caused further damage. The State presented several pictures of Killingsworth’s car taken thirty-six hours after the altercation. The pictures show two distinct footprints and indentations in the places where Dortch and Hunter testified that Shaw had jumped on and kicked the car. Further, Detective Lee Drake with the Richland Police Department testified that Shaw’s statements about what happened that night “coincided with the damages done to the vehicle.”

¶ 22. Shaw asserts that since the State never placed a value on the car, the State failed to prove the car was worth more than $500. Mark Thomison, an estimator for Barnett’s Body Shop in Ridgeland, Mississippi, testified as an expert witness for the State regarding the cost of damage done to Killingsworth’s car. Thomison stated that the total cost to fix the two dents made in Killingsworth’s car that night would be $729.12.

¶ 23. We conclude there was sufficient evidence to support Shaw’s malicious mischief conviction. The evidence shows that Shaw, after getting in a heated verbal argument with Killingsworth, malevolently jumped on and kicked Killingsworth’s car, causing damage in excess of $500. This issue is without merit.

II. Whether the State committed discovery violations by failing to provide Shaw with proper notice of its witnesses.

¶ 24. Shaw argues that “the trial court violated [his] right to a fair trial by allowing the State to call witnesses without oral summation of their testimony and without complying with Rule 9.04” of the Uniform Rules of Circuit and County Court. Rule 9.04 “requires the prosecution to disclose the names and addresses of all witnesses in chief, and any recorded statements made by the defendant and/or witness, proposed to be offered by the prosecution at trial.” Harris v. State, 37 So.3d 1237, 1241 (¶ 17) (Miss.Ct.App.2010) (citing URCCC 9.04(A)(1)). The guidelines from Rule 9.04 “were intended to prevent ‘ambush’ or unfair surprise at trial by either party.” Ben v. State, 95 So.3d 1236, 1249 (¶ 36) (Miss.2012) (citing Harrison v. State, 635 So.2d 894, 898 (Miss.1994)). Shaw specifically claims that the State failed to properly designate Dr. Michael Angel and Thomison as expert witnesses and, thus, failed to provide the defense notice of their testimony prior to trial. Shaw argues that he was not provided a curriculum vitae, that there was no voir dire of Dr. Angel, and that the defense was not provided an opportunity to interview either witness, leaving him to speculate as to the substance of their testimony.

¶ 25. After Killingsworth testified, defense counsel moved to exclude all other witnesses by the State, arguing that he had not received notice of the testimony because the State failed to provide a witness list. Counsel did admit, however, that he had received discovery documents that contained those witnesses’ signatures.

MR. RAINER: We as defense lawyers have to depend on the Court to make it an even playing field. We ask that all — any—any other witness be excluded for failure to properly identify prior to trial.
THE COURT: Mr. Rainer, let me see that I understand. So you’re saying that the even playing field would be at 4:00 o’clock on the day of trial for you to stand up and say that you have received no witnesses; therefore, the State can’t put on any witnesses, that is an even playing-field?

The trial court went on to note that defense counsel failed to mention any issues with witnesses during a prior meeting regarding the pretrial checklist. Citing this Court’s holding in Murray v. State, 20 So.3d 739 (Miss.Ct.App.2009), the trial judge determined the State had sufficiently identified the testifying witnesses through the discovery documents provided to the defense. In Murray, the trial court ruled that the substance of a witness’s testimony had been provided to the defense through a police report. Id. at 743 (¶ 12). “Although the police report did not go into the specific details of [the witness’s] testimony, this was sufficient to put the defense on notice as to [the witness’s] testimony.” Id.

¶26. We agree with the trial court’s ruling that defense counsel had received notification through the State’s discovery documents regarding witnesses and their respective testimony. Dr. Angel’s testimony was related to his treatment of Killings-worth’s ear, and his signed medical reports had been properly furnished to defense counsel. Additionally, Thomison, a body shop appraiser, testified as to his estimate and to the damage done to Killingsworth’s car. His report/estimate had also been provided to Shaw. Thus, the calling of these witnesses did not subject Shaw’s defense to “ambush” or “unfair surprise.”

¶ 27. Regarding the designation of the expert witnesses, while the State was questioning Dr. Angel regarding his qualifications, defense counsel interrupted, stating that he would accept Dr. Angel as an expert in the field of plastic and reconstructive surgery. After the State tendered Thomison as an expert, the defense still objected as to his expert designation, but did not conduct any voir dire. Furthermore, defense counsel admitted that he had been provided both witnesses’ reports before trial. Thus, the substance of their testimony was available to the defense. The trial judge held regarding Thomison’s testimony:

And for Mr. Thomison, you had a copy from the State. You had a copy of his report. And under the case that I read to you [ (Murray),] like it or not, that’s what the case said, that was sufficient ... to put you on notice.
It put you on notice that he might be called as a witness and that these are the things that he says.... You either want to interview them or you don’t want to interview them. You make that choice[,] and you make that option.

We also cannot see how Dr. Angel’s testimony was a surprise to defense counsel. As already noted, the medical reports had been provided during discovery to defense counsel. Shaw was sufficiently put on notice as to these witnesses’ testimony.

¶ 28. Therefore, we find that there was no violation of Rule 9.04 and that the trial court did not err in allowing these witnesses to testify.

III. Whether the prosecutor misconstrued the evidence and prejudiced the jury.

¶ 29. Shaw contends that throughout the course of the trial, the State constantly mischaracterized the evidence and prejudiced the jury. However, Shaw cites no legal authority to support his argument. A defendant’s failure to cite relevant authority to support his argument “obviates the appellate court’s obligation to review such issues.” Gillett v. State, 56 So.3d 469, 517 (¶ 142) (Miss.2010) (citation omitted) (quoting Simmons v. State, 805 So.2d 452, 487 (¶ 90) (Miss. 2001)). Therefore, this issue is procedurally barred from consideration. Id.

¶ 30. Notwithstanding this procedural bar, in those instances where the defense contemporaneously objected to the State’s line of questioning or statements, we find no testimony or questioning that resulted in prejudice to Shaw. During the prosecution’s questioning of Dortch, Shaw’s friends were referred to by Dortch and the State as a “posse.” Upon the defense’s objection, the trial judge noted that Dortch was the one who originally used the term, but he instructed the jury to disregard the use of the term. Later, when the State questioned Dortch regarding whether Shaw was a truthful person and Dortch responded negatively, the trial judge again sustained the defense’s objection but overruled its motion for a mistrial. The judge instructed the jury:

The last question that was asked by the State of this witness was: “Do you consider the Defendant to be a truthful person?” There was an objection raised and I sustained that objection, and I’m specifically again instructing you that you are to disregard that question and answer because under the Rules of Evidence and Proceduref,] it’s inappropriate at this time. So I will ask you that you follow the instruction of the Court and disregard the question and answer in that regard. Can all of you follow that instruction?

(Jurors indicate affirmatively.)

“When a judge sustains an objection, the remedial acts of the court are usually deemed sufficient to remove any prejudicial effect from the minds of jurors.” Catchings v. State, 39 So.3d 943, 949 (¶ 22) (Miss.Ct.App.2009) (citing Vickery v. State, 535 So.2d 1371, 1380 (Miss.1988)). The jury is presumed to follow the instructions of the court. Id. Thus, we conclude that these instances did not warrant the granting of a mistrial by the trial court.

¶ 31. Shaw also claims that the State should not have been allowed to question Gill regarding portions of a prior inconsistent statement, but as we have already noted, he provides no authority as to why this questioning would be considered pros-ecutorial misconduct.

¶ 32. Therefore, we find no merit to this claim by Shaw.

IV. Whether a mistrial should have been granted based on juror misconduct and an improper line of questioning.

¶ 33. Shaw argues that juror misconduct warranted the granting of a mistrial by the trial court. Again, Shaw fails to cite any authority, proeedurally barring the issue from consideration. Regardless, we find nothing to support his claim. During the trial, it came to the court’s attention that one of the jurors had contacted a witness, Patterson, on Facebook. Evidently, the juror, Blake Smallwood, had been a janitor at the school that Patterson had attended. Smallwood knew a couple of the other witnesses as well. Smallwood also made a comment on his Facebook page regarding his jury duty, stating: “I guess all I need to know is GUILTY, lol.”

¶ 34. Our supreme court has held:

In order for the duty to investigate [for juror misconduct] to arise, the party contending there is misconduct must make an adequate showing to overcome the presumption in this state of jury impartiality. Juror polling shall only be permitted by an attorney, outside the supervision of the court, upon written request.
At the very minimum, it must be shown that there is sufficient evidence to conclude that good cause exists to believe that there was in fact an improper outside influence or extraneous prejudicial information.

Moore v. State, 52 So.3d 389, 343 (¶ 14) (Miss.2010) (quoting Gladney v. Clarksdale Beverage Co., 625 So.2d 407, 418-19 (Miss.1993)). The trial judge thoroughly questioned Smallwood regarding his conduct and promptly removed him from the jury. The remaining jurors were polled by the trial judge; all stated that Smallwood had not made any positive or negative statements regarding the witnesses or defendants that would have tainted the jury and that they could be fair and impartial. Therefore, nothing in the evidence supports Shaw’s argument that the jury was subject to any improper outside influence or that the remaining jury was prejudiced by Smallwood in any way.

¶ 35. Shaw also revisits his argument regarding the State’s questioning of Dortch regarding Shaw’s character for truthfulness, claiming that the improper line of questioning should have warranted a mistrial. As we have already held, since the trial court instructed the jury to disregard the question and resulting answer, there was no prejudice suffered by Shaw as a result.

¶ 36. Consequently, we find no error in the trial court’s refusal to grant a mistrial.'

V. Whether teeth are a mechanism likely to produce death or serious bodily harm.

¶ 37. Shaw also “questions whether teeth are ‘a mechanism likely to produce death or seriously bodily harm,’ ” under section 97—3—7(2)(b), as stated in the jury instructions. In Jackson v. State, 594 So.2d 20 (Miss.1992), the supreme court found that the evidence of a beating by fists was sufficient to sustain a charge for aggravated assault.

[W]hether or not hands and closed fists constitute, under [section] 97-3-7(2)(b), a “means likely to produce serious bodily harm” involves a question of fact to be decided by the jury in light of the evidence. The responsibility for determining likelihood remains with the jury which may be left free to give due weight to the characteristics of the parties, the place, the manner in which hands and fists are used, and the degree of force employed.

Id. at 24 (emphasis added).

¶ 38. As to the use of teeth, the District of Columbia Court of Appeals has found that “human teeth may, as a matter of law, be a ‘deadly or dangerous weapon[.]’ ” In re D.T., 977 A.2d 346, 355 (D.C.2009). “Whether an object or material which is not specifically designed as a dangerous weapon is a ‘dangerous weapon’ under an aggravated assault statute is ordinarily a question of fact to be determined by all of the circumstances surrounding the assault.” Id. at 349 (citation omitted). In that case, law enforcement was attempting to subdue the defendant, and the defendant bit the officer in the groin area. The officer required months of antiviral treatment as a result of the injury. Id. at 356. Consequently, the appellate court held that a rational trier of fact could conclude that the defendant “used his teeth in a manner likely to cause great bodily harm.” Id. at 357.

¶ 39. Similarly, in Sizemore v. State, 387 S.W.3d 824, 826-30 (Tex.App.2012), the Texas Court of Appeals concluded that damage caused by an ear bite was sufficient to warrant a conviction for aggravated assault, as the evidence was sufficient to establish that the victim suffered “serious bodily injury.”

¶ 40. Some jurisdictions have ruled that teeth are not considered to be a “deadly” or “dangerous” weapon. See State v. Kuperus, 241 Or.App. 605, 251 P.3d 235, 238-39 (2011) (Defendant’s teeth are not considered a “dangerous” or “deadly” weapon for the purposes of assault.); Commonwealth v. Davis, 10 Mass.App.Ct. 190, 406 N.E.2d 417, 420 (1980) (human body parts not considered dangerous weapons). However, we find these cases distinguishable. Unlike the Mississippi aggravated-assault statute, their statutes require serious bodily injury to have occurred by means of a “deadly weapon” or a “dangerous weapon.” See Kuperus, 251 P.3d at 237 (The crime of assault in the first degree is committed when the person “[i]n-tentionally causes serious physical injury to another by means of a deadly or dangerous weapon.”) (Quoting O.R.S. § 163.185(1)(a)); Davis, 406 N.E.2d at 419 (“Section 15A punishes assaults and batteries committed by ‘means of a dangerous weapon.’ ”) (citing Mass. Gen. Laws ch. 265, § 15A). As our supreme court noted in Jackson:

It is not necessary under [section] 97-3-7(2)(b) that the use of hands and fists constitute the use of a “deadly weapon”; rather, it is enough if their use constitutes a “means likely to produce either death or serious bodily harm.” Nor is it necessary under this section for the State to prove the victim suffered “serious” bodily injury. Mere “bodily injury” is sufficient so long as it was caused with “other means likely to produce death or serious bodily harm.”

Jackson, 594 So.2d at 24. Therefore, the determination whether teeth could be considered a “deadly weapon” is not essential to prove the elements of aggravated assault.

¶ 41. In the present case, Dr. Angel, the plastic surgeon who operated on Kill-ingsworth, testified that Killingsworth’s injury was a “sharp trauma.” Killingsworth required surgery and a one-day hospital stay. By clamping down on Killings-worth’s ear with his teeth, Shaw ripped a seven and one-half by one and one-half centimeter (or a 3 inch by one-half inch) piece of tissue from Killingsworth’s ear. The photos of Killingsworth’s mangled ear were identified and placed into evidence.

¶ 42. Thus, we find that the jury could reasonably determine that Shaw’s use of teeth was sufficient to cause “serious bodily harm” to Killingsworth, thereby satisfying that element of section 97-3-7(2)(b).

VI. Whether the trial court erred in denying Shaw the right to give “words of provocation” jury instructions.

¶ 43. Shaw argues that the trial court should have given Jury Instructions D-32 and D-33, which were “words of provocation” instructions. D-32 stated: “The Court instructs the jury for the Defendant, Brett Anthony Shaw, that an invitation to fight is no[t] sufficient provocation to assault or push or strike another person, even though one may have been the first to make a warlike demonstration and commence to take one’s upper clothing off.” Instruction D-33 said:

The Court instructs the jury for the Defendant, Brett Anthony Shaw, that acceptance of a challenge to fight and voluntar[il]y engaging in a fight because of the challenge, cannot be set up as justification for assaulting another person and is unlawful. And, further, the Court instructs the jury for Brett Shaw that even though you find that Brett Anthony Shaw used insulting words toward Shaun Killingsworth, yet those words, nor would any words, amount [to] such provocation as to deprive Brett Anthony Shaw of the right to self-defense.

¶ 44. The giving or refusal of a jury instruction is subject to the trial court’s discretion. Allen v. State, 111 So.3d 679, 684 (¶ 9) (Miss.Ct.App.2013) (citation omitted). If the instructions, when viewed as a whole, fairly announce the case law and “create no injustice,” then no reversible error will be found. Id.

¶45. Upon review, we find nothing in the evidence to support the giving of these instructions. The trial judge, in refusing the jury instructions at issue, noted that defense counsel provided no authority to support the giving of these instructions, nor can this Court find any. ■ While a defendant may produce evidence that a victim used provoking language to support a theory of self-defense, that is not applicable to the facts of this case. See Miss.Code Ann. § 99-17-19 (Rev.2007). Shaw was the one using words of provocation, not Killingsworth. Further, Killings-worth was not the one on trial for aggravated assault; Shaw was. Accordingly, we find that the refusal of the jury instructions by the trial judge was not an abuse of discretion.

VIL Whether cumulative errors warrant a reversal of Shaw’s conviction.

¶46. As we have found no individual errors, there can be no cumulative error that requires reversal of the judgment. See Lawrence v. State, 116 So.3d 156, 163 (¶ 37) (Miss.Ct.App.2012) (“[I]f there are no individual errors, there can be no cumulative error that warrants reversal.”) (citation omitted).

¶ 47. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS WITH TEN YEARS SUSPENDED, AND COUNT II, MALICIOUS MISCHIEF, AND SENTENCE OF FIVE YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY, FOLLOWED BY FIVE YEARS OF SUPERVISED PROBATION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

CARLTON, J.,

specially concurring:

¶ 48. I concur with the decision of the majority. I submit that the record contains sufficient evidence from which the jury could find beyond a reasonable doubt that Shaw committed aggravated assault by using his teeth to tear off a portion of Killingsworth’s ear. See Williams v. State, 94 So.3d 324, 329-30 (¶ 20) (Miss.Ct.App.2011). Under the applicable standard of review, the evidence in the record is sufficient, and logical inferences may be drawn therefrom, for the jury to conclude that Shaw — not Killingsworth — acted as the initial aggressor in the aggravated assault. Accordingly, I concur with the majority’s decision to affirm the trial court’s judgment and convictions as to both counts — malicious mischief, and aggravated assault. I specially concur with the majority and write separately to address the sufficiency of the evidence and the jury instructions in this case.

¶ 49. Shaw was charged with malicious mischief pursuant to Mississippi Code Annotated section 97-17-67 (Supp.2012) and aggravated assault pursuant to Mississippi Code Annotated section 97-8-7(2)(b) (Rev. 2006). Section 97 — 3—7(2)(b) provides that “[a] person is guilty of aggravated assault if he ... attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.” Shaw’s indictment stated that he purposely or knowingly “[bit] a portion of Killingsworth’s right ear off, a means likely to produce death or serious bodily harm.”

¶ 50. I recognize that each witness testifies according to his or her own particular perception and memory of an event and memory thereof, and that it is the province of the jury to resolve conflicts in testimony and to determine credibility. I now turn to review evidence in the record supporting the conviction for aggravated assault, which includes testimony from Killings-worth, the victim, as determined by the jury; Patterson, Shaw’s girlfriend; eyewitnesses including Dortch and Hunter El-ward; three law enforcement officers; as well as medical testimony and automobile-damage-valuation testimony.

¶ 51. The transcript shows that before arriving to the party at Ian’s apartment on July 18, 2010, Shaw revealed to his girlfriend (Patterson) his intent and desire to fight Killingsworth. Shaw explained that Killingsworth’s constant bragging about his- car angered Shaw. Killingsworth testified that during the party, he went outside because a neighbor told him that Shaw was jumping up and down on his car. Killingsworth testified that he saw the damage to his car, and he immediately asked Shaw why he damaged the car. According to Killingsworth’s testimony, Shaw stood aggressively close to Killingsworth’s face. Killingsworth testified that he told Shaw to get out of his face, and stated that he did not want to fight Shaw. However, Shaw responded by telling Killingsworth that he was already in his face. These actions by Shaw provide sufficient evidence to show that he acted with the requisite general intent. See Bright v. State, 986 So.2d 1042, 1046 (¶ 13) (Miss.Ct.App.2008) (“Intent is determined by the act itself, surrounding circumstances, and expressions made by the actor with reference to his intent.”).

¶ 52. • Killingsworth testified that he tried to get Shaw to calm down, so he pushed him against the vehicle and held Shaw there in an effort to prevent Shaw from hitting him. Killingsworth admitted at trial that he made the first contact between himself and Shaw by pushing Shaw out of his face in order to hold him down. Killingsworth claimed that Shaw’s friend Gill came from behind him while he was holding Shaw. Gill then hit Killings-worth, so Killingsworth tried to stop Gill from hitting him. Once Killingsworth turned back around to where he was holding Shaw, Shaw bit Killingsworth on the ear, as well as under the arm.

¶ 53. Killingsworth testified that he tried to get Shaw off of him, and stated that Shaw would not quit biting him. Kill-ingsworth’s statement to the police, introduced during cross-examination, reflected that Killingsworth punched Shaw a couple of times in an attempt to get Shaw to release his bite hold on Killingsworth’s ear. Killingsworth stated that he “wrapped [Shaw] back up,” holding him on the ground. Shaw’s bite hold on Killings-worth’s ear was too tight and strong, re-suiting in Shaw ripping off Killingsworth’s ear. The police then arrived and found Killingsworth and Shaw on the ground.

¶ 54. With respect to other testimony in the record that also supports the jury’s verdict and provides evidence that Shaw acted as the initial aggressor and with the requisite general intent, I note that Dortch, an eyewitness, testified that Shaw acted hostilely earlier at the party and verbally expressed his desire to fight Kill-ingsworth. Shaw. kept asking Killings-worth to go outside to fight. Dortch separated the two, testifying that he took Shaw outside and Killingsworth stayed inside. As to Shaw’s demeanor, Dortch testified that Shaw seemed angry and hostile, but that Killingsworth was not angry. Dortch also testified that he observed Shaw throw the first punch, but he stated that Killings-worth just kept telling Shaw that he did not want to fight. Dortch’s testimony that he witnessed Shaw throw the first punch was consistent on cross-examination, and established that Dortch was consistent as to this claim in his pretrial written statement to law enforcement.

¶ 55. Hunter, another eyewitness, heard Shaw yelling, “Bring it on. Do something. Let’s see what you got.” Hunter saw Shaw take his shirt off and beat his chest “like a gorilla.” Shaw began jumping around, whooping, and hollering. Shaw jumped on the hood of Killings-worth’s car and began slamming his feet into the hood. Shaw jumped off the car and Killingsworth came outside. Hunter heard Shaw yell profanity, and he heard Killingsworth ask why Shaw jumped on his car. Hunter also heard Killingsworth tell Shaw that he did not want to engage in a fight with him. Hunter stated that Shaw acted as the initial aggressor by punching Killingsworth. Hunter explained that he saw Shaw rare back to punch Killings-worth, and prior to that action, Killings-worth had not made any aggressive moves towards Shaw. Killingsworth grabbed Shaw in self defense, and the two began to tussle shortly before Killingsworth slammed Shaw into the ground. Hunter stated that he saw the two holding each other in a headlock on the ground, and it appeared that Killingsworth was trying to prevent Shaw from doing anything. Hunter heard Killingsworth yell that Shaw had bitten his ear. Hunter saw blood on both Shaw and Killingsworth. Hunter testified that the police arrived about two minutes after Shaw bit a portion of Killingsworth’s ear off.

¶ 56. Lieutenant East of the Richland Police Department testified that when he arrived to the scene, Killingsworth and Shaw were on the ground fighting, and he observed Killingsworth trying to hold Shaw down. Both Lieutenant East and Officer Frank Craft, also of the Richland Police Department, testified that Shaw did not appear to be injured upon their arrival. Shaw provided a statement to the police stating that he was too drunk to remember the events of the night, but he stated that he did remember denting Killingsworth’s car before getting into a fight and biting off part of Killingsworth’s ear. Both officers testified that Shaw was defiant and uncooperative upon their arrival at the scene.

¶ 57. In jury instruction 9, the jury was instructed:

[I]f you believe from the evidence that [Killingsworth] was the aggressor in this case, and-if you further believe from the evidence that [Killingsworth] was a much larger and stronger man than [Shaw], and was capable of inflicting great and serious harm upon [Shaw] with his hands and that [Shaw] had reason to believe and did believe as a man of ordinary reason that he was in imminent danger of such harm at the hands of [Killingsworth], and that [Shaw] used his teeth to protect himself from such harm, then it is your duty to find [Shaw] not guilty.

¶ 58. Jury instruction 10 also properly informed the jury that the law in Mississippi provides than an initial aggressor is not entitled to assert the defense of self-defense. Similarly, and without objection, the court instructed the jury in instruction 12 that voluntary intoxication failed to provide a defense to the charge of aggravated assault or malicious mischief in Mississippi. See Harper v. State, 853 So.2d 1286, 1288 (¶ 7) (Miss.Ct.App.2003) (holding that failure to make a contemporaneous objection at trial waives review of the issue on appeal). Voluntary intoxication provides no defense to these offenses since they both constitute general-intent crimes. See Wales v. State, 73 So.3d 1113, 1121 (¶ 22) (Miss.2011) (holding that intent can be inferred from evidence of the defendant’s actions); Bright, 986 So.2d at 1046 (¶ 13) (aggravated assault is a crime of general intent); Griffin v. State, 872 So.2d 90, 91-92 (¶¶ 4-5) (Miss.Ct.App.2004).

¶ 59. I submit that the testimony of the eyewitnesses and the victim indeed provided a sufficient evidentiary basis for the jury to find that Shaw acted as the initial aggressor. During the party, Shaw put his intent on display through his hostile behavior of stomping on Killingsworth’s car and getting in his face to pick a fight. See Wales, 73 So.3d at 1121 (¶ 22); Chambliss v. State, 919 So.2d 30, 35 (¶ 15) (Miss.2005) (questions of a defendant’s intent and knowledge are questions for the jury). The record shows that an expert in auto-body-repair valuation also testified as to the damage of the victim’s car. Eyewitnesses also established that Shaw tried to fight Killingsworth most of the evening, and that Killingsworth repeatedly told Shaw that he did not want to fight. Kill-ingsworth and the eyewitnesses testified that Shaw threw the first punch.

¶ 60. Jury instruction 11 instructed the jury that “serious bodily harm is bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.” Jury instruction 11 further instructed that it was for the jury to determine whether or not biting off part of Killingsworth’s ear, as alleged in this case, constituted a “means likely” to produce serious bodily harm. With respect to jury instruction 11, the record shows that during the court’s conference on jury instructions with counsel for both the State and Shaw, the court requested that counsel submit an instruction that defined “means likely” and also informed the jury that it was their duty to determine whether or not biting off someone’s ear is a “means likely” to produce serious bodily harm. The jury-instruction conference reflects that the court considered case law in its determination of the instructions regarding the law on “means likely” and in the area of initial aggressors in assaults. The court explained that the case law reflected that “means likely” constituted a jury question. The defense raised no objection, and when the amended jury instruction S7(a) was offered to the court with the definition of “means likely” contained therein, the defense accepted the instruction. The court then accepted instruction S7(a), which was presented to the jury as instruction 11. See Foster v. State, 639 So.2d 1268, 1289 (Miss.1994) (“A defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal.”).

¶ 61. In examining the evidence of the serious bodily harm of disfigurement resulting from the aggravated assault, the record includes photographs of Killings-worth’s disfigured ear and testimony from Killingsworth, and medical testimony of Dr. Angel, showing that Killingsworth was missing seven and a half centimeters of his ear, which the record provides constitutes about the full length of his ear. The record shows that Killingsworth required surgery on his ear as a result of the injury. Clearly, disfigurement to the ear results when a person bites part of another’s ear off, and I submit that such permanent disfigurement of the ear constitutes a serious bodily harm, satisfying the injury element of the aggravated-assault statute.

¶ 62. The jury instructions in this case reflect that the trial court properly and thoroughly instructed the jury as to the State’s burden to prove each element of the charged offenses. . The jury instructions also reflect that the trial court properly and thoroughly instructed the jury as to the other issues raised by the evidence in this case. See O’Flynn v. Owens-Corning Fiberglas, 759 So.2d 526, 536 (¶ 31) (Miss.Ct.App.2000) (On appeal, jury instructions are reviewed as a whole to determine whether the instructions properly express the applicable law.).

¶ 63. Certainly, conflicting evidence was presented at the trial, but it is the job of the jury, and not the appellate courts, to determine credibility and resolve conflict in testimony. Nason v. State, 840 So.2d 788, 792 (¶¶ 14-15) (Miss.Ct.App.2003) (jury possesses the duty to resolve conflicts in testimony). The record reflects sufficient evidence to show that Shaw acted as the initial aggressor. Paraphrasing, the record shows that the jury was instructed in jury.instruction 9 that it was required find Shaw not guilty if it found that Killingsworth acted as the initial aggressor and found that Shaw bit Killings-worth’s ear to protect himself because of his reasonable belief that he faced imminent danger of serious bodily harm from Killingsworth. The jury considered this instruction and rejected Shaw’s defense. Sufficient evidence exists in the record for the jury to have found beyond a reasonable doubt that Shaw acted as the initial aggressor by biting and aggressively hitting Killingsworth and damaging his ear. Sufficient evidence also exists for the jury to find that the State met its burden of proving each element of the charged offenses beyond a reasonable doubt.

¶ 64. In the present case, the record shows that Shaw verbally expressed his intent to fight Killingsworth and then later engaged in a physical altercation with Kill-ingsworth, which caused Killingsworth serious bodily harm. The evidence in the record more than sufficiently satisfied that amount of evidence which is required by our standard of review of a jury verdict to establish the defendant’s general intent to commit these offenses. I therefore concur with the majority’s decision to affirm the judgment of the trial court and the verdict of the jury. See Williams, 94 So.3d at 329-30 (¶ 20).

JAMES, J., JOINS THIS OPINION IN PART.

ISHEE, J.,

concurring in part and dissenting in part:

¶ 65. While I concur with the majority’s decision to affirm Shaw’s malicious-mischief conviction, I respectfully dissent from the decision to affirm Shaw’s conviction of aggravated assault. The majority finds that the evidence was sufficient for the jury to conclude that Shaw intended to inflict serious bodily harm on Killings-worth. I disagree. Accordingly, I would reverse and render Shaw’s conviction for aggravated assault.

¶ 66. In order for the evidence to be found sufficient to sustain a conviction, it must show “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this testy it is insufficient to support a conviction.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citing Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Mississippi Code Annotated section 97-3-7(2)(b) (Rev.2006) provides that “[a] person is guilty of aggravated assault if he ... attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm[.]” Shaw was charged with purposely or knowingly “biting a portion of Kill-ingsworth’s right ear off, a means likely to produce death or serious bodily harm.” The State was required to prove, beyond a reasonable doubt, that Shaw acted with either requisite mental state provided for in section 97-3-7(2)(b).

¶ 67. Shaw argues that the State did not put forth any evidence to support the “purposely or knowingly” elements of the charge of aggravated assault. Shaw asserts that it is reasonable that he bit Kill-ingsworth in an attempt to get Killings-worth to release him and not to cause bodily injury. As such, Shaw argues that since he acted in self-defense without the intent to cause serious bodily harm, the evidence was insufficient to sustain his conviction of aggravated assault. I agree.

¶ 68. The State contends that Shaw’s intent to cause serious bodily injury can be inferred from testimony given regarding Shaw’s anger and antagonizing behavior towards Killingsworth. “Intent ordinarily must be inferred from the acts and conduct of the party and the facts and circumstances attending them.” Wales v. State, 73 So.3d 1113, 1121 (¶22) (Miss.2011) (citation omitted). Further, “even ‘slim’ evidence can be used to uphold a guilty verdict so long as it can reasonably be inferred to support such a finding.” Sanders v. State, 949 So.2d 92, 94 (¶ 5) (Miss.Ct.App.2006) (citation omitted).

¶ 69. The only testimony presented concerning the details of the bite to Kill-ingsworth’s ear was by Killingsworth. Killingsworth stated that while he had Shaw restrained beneath him, Gill began punching and kicking him in an attempt to help Shaw. Killingsworth testified that he turned to see who was attacking him and, when he turned his head back around after addressing Gill, Shaw bit his ear. Kill-ingsworth described the incident and stated, “[Shaw] had a tight grip on [the ear] so, I mean, I had to get him off ... [a]nd when he came off[,] [the ear] ripped down and that’s when [the ear] ripped off.” Kill-ingsworth’s testimony fails to prove that Shaw acted with either requisite mental state. Rather, his testimony only provides evidence that the loss of the ear occurred as a result of a struggle between the two men and that Shaw was acting in self-defense.

¶ 70. “Self-defense has long been recognized in our law as a defense to a prosecution for assault, or as it is today known, aggravated assault.” Anderson v. State, 571 So.2d 961, 963 (Miss.1990) (citations omitted).

To make an assault justifiable on grounds of self-defense, danger to the defendant must be either actual, present and urgent, or [the] defendant must have reasonable grounds to apprehend design on the part of the victim to kill, or to do him some great bodily harm, and, in addition, there must be imminent danger of such design being accomplished.

Id. Shaw and Killingsworth had been at odds the entire night. Killingsworth had confronted Shaw twice that evening, once in the kitchen, and later in the parking lot. While Killingsworth testified that, at all times, he informed Shaw that he did not want to fight, he continued to provoke Shaw. He testified that during the argument in the kitchen he did not back down from Shaw. He also stated that upon hearing that Shaw had damaged his car, he was prepared to get in his car to go find Shaw and approach him about the damage.

¶ 71. It is evident that Killingsworth was the initial aggressor and Shaw was in actual danger of harm. At the time of the incident, Killingsworth was twenty-four years old and Shaw was only nineteen years old. Killingsworth, weighing 240 pounds and measuring six feet in height, admitted that he was substantially larger and stronger than Shaw. Although there was testimony that Shaw also presented antagonizing behavior, the first physical contact made between the two men was when Killingsworth shoved Shaw in the parking lot. Shortly thereafter, Killings-worth pinned Shaw down and did not release him until the police officers arrived. At all times during the fight, Shaw was trapped beneath Killingsworth. The only opportunity Shaw had to get away from Killingsworth was when Killingsworth became distracted by Gill, and Shaw attempted to escape with a single bite to Killingsworth’s ear. Although Killings-worth suffered bodily injury, the evidence reflects that Shaw’s action of self-defense was not done with the intent to purposely or knowingly cause serious bodily injury.

¶ 72. While the evidence in this case may meet the elements necessary for simple assault, that charge was not presented to the jury. As such, the evidence must have been sufficient to meet the elements of aggravated assault. I believe that it was not. Therefore, I would reverse and render the jury’s guilty verdict and Shaw’s sentence on the aggravated-assault charge.

LEE, C.J., AND JAMES, J., JOIN THIS OPINION.

      . Some issues have been consolidated on appeal for purposes of clarity.

      . Shaw also asserts that the State attempted to bolster certain testimony merely by asking a witness to repeat an answer, but the defense failed to make a contemporaneous objection to the alleged misconduct.

      . See Chambliss v. State, 919 So.2d 30, 35 (¶ 15) (Miss.2005) (the questions of a defendant’s intent and knowledge are questions for the jury); Bright v. State, 986 So.2d 1042, 1046 (¶ 13) (Miss.Ct.App.2008) ("Intent is determined by the act itself, surrounding circumstances, and expressions made by the actor with reference to his intent.”).

      . See Jackson v. State, 594 So.2d 20, 23 (Miss.1992) (supreme court held that an aggravated assault committed with one's fists may constitute a crime under Mississippi Code Annotated section 97—3—7(2)(b)); Johnson v. State, 230 So.2d 810, 811 (Miss.1970) (shoe-clad foot falls into category of other means); Adams v. State, 726 So.2d 1275, 1278-79 (¶ 8) (Miss.Ct.App.1998) (fist falls into category of other means); Harrison v. State, 724 So.2d 978, 984 (Miss.Ct.App.1998).

      . See Manuel v. State, 667 So.2d 590, 592-93 (Miss.1995); See also Miss.Code Ann. § 99-17-19 (judge in a criminal case shall instruct the jury upon the principles of law applicable to the case).

      . See Owens v. State, 763 So.2d 917, 920 (¶ 9) (Miss.Ct.App.2000).

      . In Jenkins v. State, 913 So.2d 1044, 1048-49 (¶¶ 12-13) (Miss.Ct.App.2005), this Court clarified:
      Both this Court and the Mississippi Supreme Court have held that when an individual is charged pursuant to Mississippi Code Annotated [section] 97 — 3—7(2)(b), the State need not prove the victim suffered "serious” bodily injury. In Jackson v. State, 594 So.2d 20, 24 (Miss. 1992), the Mississippi Supreme Court stated:
      It is not necessary under [section] 97-3-7(2)(b) that the use of hands and fists constitute the use of a "deadly weapon”; rather, it is enough if their use constitutes a "means likely to produce [either] death or serious bodily harm.” Nor is it necessary under this section for the State to prove the victim suffered "serious” bodily injury. Mere "bodily injury” is sufficient so long as it was caused with "other means likely to produce death or serious bodily harm.”

        .See Osborne v. State, 843 So.2d 99, 102 (¶ 11) (Miss.Ct.App.2003) (Evidence presented in support of an aggravated assault charge failed to warrant a lesser-included-offense instruction of simple assault; "[the defendant] was either not guilty since she claimed she did not know how [the victim] was injured and that she did not touch [the victim], or she was guilty of aggravated assault as she caused injury under circumstances manifesting extreme indifference to the value of human life using means likely to produce serious bodily harm.”).

      . See Williams, 94 So.3d at 329-30 (¶ 20) (When considering whether the evidence is sufficient to support a conviction, “the critical inquiry is whether the evidence shows beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.”).

      . See Chambliss, 919 So.2d at 35 (¶ 15); Bright, 986 So.2d at 1046 (¶ 13).


source: Caselaw Access Project

author: JAMES, J.,

license: Public Domain

text:
    Charlie OSBY a/k/a Charles M. Osby a/k/a “Slim”, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01743-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.
    Rehearing Denied May 27, 2014.
    Office of State Public Defender by George T. Holmes, Erin Elizabeth Prid-gen, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorneys for appellee.
    Before IRVING, P.J., ROBERTS and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Charlie Osby was convicted by a jury in the Pike County Circuit Court of burglary of a building. Osby now appeals, arguing he received ineffective assistance of counsel where his attorney failed to request a circumstantial-evidence jury instruction. Finding the evidence did not support the giving of a circumstantial-evidence instruction, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 25, 2012, Lula Campbell sent her two grandsons to a house next door to retrieve a microwave. The house, which had been unoccupied for several months, previously belonged to Lula’s late stepfather. Lula had stored all her stepfather’s belongings in the house and placed a storage lock on the front door. As Lula’s grandsons approached the house, they noticed a car parked on the property. They also noticed the broken storage lock lying on the ground. As the boys got closer to the house, they heard noises coming from inside and saw the blinds move. Fearing that someone had broken into the house and was still inside, they walked back to their grandmother’s house and told her what they had seen.

¶ 3. Lula, along with her son-in-law, Kelvin Smith, walked next door to the property with her grandsons. Lula and Kelvin heard noises coming from inside the house. Kelvin knocked on the door and demanded that whoever was inside come out. Kelvin, Lula, and her grandsons then walked around to the side of the house. Lula noticed the unfamiliar vehicle parked on the property and wrote the tag number on a piece of paper. She looked through the car window and saw boxes full of crystals, pots, pans, and other items that belonged to her stepfather on the backseat of the car. Lula yelled for whoever was inside the house to come out, but no one answered. Shortly after, the family saw Osby emerge from the back of the house carrying fishing rods. Lula testified that the fishing rods belonged to her stepfather and- were stored inside the house. Lula asked Osby who he was and where he was going with her stepfather’s belongings. Osby responded that he was “going through hard times and didn’t mean no harm.” Lula asked Osby if he had taken the items in his car from the house, and Osby responded, “no.” Lula then asked Osby to let her see the items and to open the trunk of the car. Osby refused. At that moment, Osby threw the fishing rods on the ground and stated, “I hope I ain’t in no trouble. I don’t mean no harm.” Osby then apologized, got into his car and drove away. Lula called the police. After the police arrived, Lula went inside the house and noticed that her stepfather’s crystals, pots and pans, and other items were missing from the home.

¶ 4. Osby was indicted for burglary of a building. Following a trial held on September 18, 2012, Osby was found guilty, and was sentenced as a habitual offender to serve seven years in the custody of the Mississippi Department of Corrections, without the possibility of parole, probation, or early release. The sentence was ordered to run consecutively to a prior sentence. Osby was also ordered to pay a fine of $3,000. On October 4, 2012, Osby filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. Following the denial of that motion, Osby filed the present appeal.

DISCUSSION

¶ 5. Osby argues he received ineffective assistance of counsel where his attorney failed to request a circumstantial-evidence jury instruction. Osby contends the evidence presented by the State was purely circumstantial, and the jury was not properly instructed. “A circumstantial evidence case is one where the State is ‘without a confession and wholly without eyewitnesses to the gravamen of the offense charged.’” Garrett v. State, 921 So.2d 288, 291 (¶ 17) (Miss.2006) (quoting Kniep v. State, 525 So.2d 385, 392 (Miss.1988)). “The defendant is not entitled to a circumstantial evidence instruction where both circumstantial and direct evidence are admitted at trial.” Id. at 292 (¶ 17) (citing Gilleylen v. State, 255 So.2d 661, 663-64 (Miss.1971)).

¶ 6. Here, the State produced direct evidence of the burglary, including three eyewitnesses. Lula, Kelvin, and Lula’s oldest grandson all testified that they saw Osby walk around the side of the house carrying fishing rods that belonged to Lula’s stepfather. Each witness testified that immediately before they saw Osby outside, they heard noises coming from inside the house. Lula also testified that she saw boxes containing items that were previously stored inside the house on the back seat of Osby’s car.

¶ 7. In addition, each witness testified that Osby apologized before he got into his car and drove away. Each witness stated that after Osby got caught stealing the items, he stated that he was “going through hard times” and “didn’t mean [any] harm.” In light of the surrounding events, Osby’s statements constitute an admission to the offense. “An admission is but a statement by the accused which may be direct or implied by facts pertinent to the issue and tending to prove his guilt.” Brown v. State, 19 So.3d 85, 92 (¶ 20) (Miss.Ct.App.2008) (quoting Lynch v. State, 877 So.2d 1254, 1266 (¶17) (Miss.2004)).

¶ 8. Osby argues that because the family did not see him break into the house, his conviction was based on purely circumstantial evidence. However, we find that the eyewitness testimony, in addition to Osby’s statements, which amounted to an admission, obviated the need for a circumstantial-evidence jury instruction. Therefore, Osby’s claim of ineffective assistance of counsel due to his attorney’s failure to request a circumstantial-evidence jury instruction is without merit.

¶ 9. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A BUILDING AND SENTENCE AS A HABITUAL OFFENDER OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE, PROBATION, OR EARLY RELEASE, WITH THE SENTENCE TO RUN CONSECUTIVELY TO A PRIOR SENTENCE AND TO PAY A $3,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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


author: MAXWELL, J.,

text:
    CAPPAERT MANUFACTURED HOUSING, INC., Appellant v. Gary E. THRONSON, II, Barbara Butrich Thronson, Rodney St. Romain and Judy Lachey St. Romain, Appellees.
    No. 2012-CA-01969-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2013.
    Rehearing Denied March 11, 2014.
    Certiorari Denied May 29, 2014.

      Frank G. Vollor, Vicksburg, attorney for appellant.
    William M. Bost Jr., attorney for appel-lees.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Mississippi will only deny full faith and credit to a foreign judgment where the originating court lacked jurisdiction or the judgment was obtained through extrinsic fraud. Here, Cappaert Manufactured Housing, Inc., asks that we not enforce a judgment obtained against it in Louisiana. It bases its request on assertions of “extrinsic fraud” concerning what it deems “ill practices” by members of Louisiana’s judiciary in appointing a biased trial judge. But Cappaert presents nothing extrinsic to the Louisiana proceedings as evidence of fraud. Instead, it solely relies on an order that was part of the record of its Louisiana appeal — an order that the Louisiana appellate court addressed when finding the judgment valid.

¶ 2. Because Cappaert did not raise the issue in its Louisiana appeal and presents no evidence of illicit goings-on outside of the Louisiana proceedings that led to the judgment, we find there is no “extrinsic fraud” that would render the judgment unenforceable in Mississippi. We thus affirm the judgment of the Warren County Circuit Court, denying Cappaert’s objection to the enrollment and enforcement of the foreign judgment.

Background

¶ 3. Cappaert is a Mississippi company that builds manufactured housing. Capp-aert was sued in Louisiana by multiple plaintiffs, who lived in nine different Cappaert-built homes in that state. The plaintiffs raised claims of redhibition and personal injury resulting from alleged defective conditions in the homes. Plaintiffs who lived in seven of the nine homes were ordered to arbitrate. But the claims of the residents of the two remaining mobile homes, Gary and Barbara Thronson and Rodney and Judy St. Romain, went to trial in Avoyelles Parish, Louisiana.

¶ 4. The weekend before trial, the assigned trial judge had a family emergency, which prevented him from serving the next week. So the Supreme Court of Louisiana assigned Retired Judge Ronald D. Cox as “judge pro tempore.” The order assigning Judge Cox was signed by Chief Justice Catherine D. Kimball.

¶ 5. When the parties learned of Judge Cox’s appointment, there were no complaints. Trial proceeded, with Judge Cox ruling in favor of the Thronsons and St. Romains on their redhibition claims. He awarded the Thronsons $68,465.02 and the St. Romains $222,549.44. After an unsuccessful post-trial motion, Cappaert filed a devolutive appeal. (In Mississippi, we would describe the appeal as being “without supercedeas,” meaning the enforceability of the judgment was not stayed during the appeal.)

¶ 6. Because the Louisiana appeal did not suspend the enforcement of the judgment, the Thronsons and the St. Romains enrolled their judgment in the Warren County Circuit Court while the appeal was still pending. Cappaert objected, arguing the judgment was void and should not be given full faith and credit by Mississippi. Cappaert’s cited reason for voiding the judgment was its insistence that the appointment of Judge Cox was procured by “ill practices.” The order appointing Judge Cox was signed by Chief Justice Kimball “for Jeannette Theriot Knoll, Justice.” According to Cappaert, this meant it was really Justice Knoll, not Chief Justice Kimball, who appointed Judge Cox. And Cappaert maintained this was unethical because Justice Knoll is married to one of the attorneys who represented the Thronsons and St. Romains at the trial for which Judge Cox was appointed. Capp-aert further asserted that Justice Knoll purposefully selected Judge Cox to ensure her husband’s clients would prevail. Cappaert pointed to comments Judge Cox made in the hearing on Cappaert’s post-trial motion as evidence of Judge Cox’s bias. Cappaert also objected to the enrollment and enforcement of the judgment because, in its estimation, it was so excessive as to violate due process.

¶ 7. Even though the Louisiana appeal was devolutive (without supercedeas), the Warren County Circuit Court stayed enrollment of the judgment until the Louisiana appeal was resolved. In that appeal, Cappaert argued the judgment was void for a different reason relating to Judge Cox — but it made no allegations of “ill practices” or violations of the Louisiana Code of Judicial Conduct. Rather than attacking the validity of the order appointing Judge Cox, Cappaert instead claimed Judge Cox had exceeded the temporary authority granted him in the order appointing him judge pro tempore. Smith v. Cappaert Manufactured Housing, Inc., 89 So.3d 1234, 1237-38 (La.Ct.App.2012). Cappaert also challenged the amount of the judgment as representing “double recovery.” Id. at 1246.

¶8. The Court of Appeal of Louisiana, Third Circuit, rejected Cappaert’s arguments, neither finding the judgment was void based on Judge Cox’s appointment nor that the judgment was excessive. But in affirming the judgment, the court of appeal did credit Cappaert $27,057.54 against the Thronsons’ judgment, based on rental income they had received from their mobile home. Id. at 1248.

¶ 9. Once the Court of Appeal of Louisiana affirmed the judgment, at the reduced amount, the Warren County Circuit Court found it was likewise enforceable in Mississippi. The circuit court specifically rejected Cappaert’s arguments of a fraudulent appointment and an excessive damage award because Cappaert had not raised these objections in its Louisiana appeal.

¶ 10. Cappaert timely appealed the circuit court’s order.

Discussion

¶ 11. Though Cappaert now claims extrinsic fraud, ill practices, and lack of due process in the Thronsons and St. Romains’ procurement of the Louisiana judgment, we note the Court of Appeal of Louisiana has already ruled on the validity of the judgment, including Judge Cox’s appointment and the amount of the judgment. Smith, 89 So.3d at 1238, 1246. After review, we refuse to deny full faith and credit to the already judicially approved final judgment, based on arguments Capp-aert could have and, perhaps, should have raised with the Louisiana court.

I. Appointment of Judge Cox

¶ 12. Article IV, Section 1 of the United States Constitution directs Mississippi to give full faith and credit to all final judgments by another state or federal court. But there are two notable limitations. Mississippi does not have to extend full and credit “where the court rendering the judgment was without jurisdiction or judgment was obtained by extrinsic fraud.” Reeves Royalty Co. v. ANB Pump Truck Serv., 513 So.2d 595, 598 (Miss.1987) (citation omitted). Because Cappaert alleges the judgment was obtained by extrinsic fraud, we focus on this exception to the Full Faith and Credit Clause.

¶ 13. “Extrinsic fraud has been defined as any fraudulent conduct of the successful party which was practiced outside of an actual adversary trial directly and affirmatively on the defeated party whereby he was prevented from presenting fully and fairly his side of the cause.” Id. at 598-99 (emphasis added) (quoting Britton v. Gannon, 285 P.2d 407, 409-10 (Okla.1955)). For example, in Reeves Royalty, a creditor obtained a default judgment in Texas after it had assured the debtor that it would take no further action to collect the debt. Id. at 597. Because the Texas judgment was procured by assurances made outside of the trial proceeding, our supreme court found extrinsic fraud rendering the judgment unenforceable. Id. at 599.

¶ 14. But here, Cappaert points to nothing that occurred outside of the trial proceedings in Louisiana that led to the judgment. In other words, Cappaert is not alleging that it has, since the Louisiana appeal, learned of a conversation or agreement or assurance made outside of the trial proceeding that prompted the unfavorable judgment. Cappaert’s only evidence to support its claim of extrinsic fraud is the order appointing Judge Cox, which bore the name, but not the signature, of Justice Knoll — an order that Capp-aert relied on in its Louisiana appeal.

¶ 15. Cappaert asks us to assume that this order, on its face, proves judicial misconduct so severe as to vitiate the judgment that followed Judge Cox’s appointment. But the Court of Appeal of Louisiana, Third Circuit, was well aware of this order. Indeed, the first point of error in Cappaert’s Louisiana appeal was that Judge Cox exceeded the temporal authority granted to him by this order. Smith, 89 So.3d at 1237-38. And the court of appeal relied on the order’s language in rejecting Cappaert’s argument. See id. Were it as obvious as Cappaert makes it out to be that this order was the product of judicial misconduct, we have no doubt that the Louisiana appellate court — which is more familiar with its procedures for temporary judicial appointments and has a great interest in protecting the integrity of its judiciary— would have addressed it. Cf. Sollitt v. Robertson, 544 So.2d 1378, 1381 (Miss.1989) (citing Reeves Royalty, 513 So.2d at 598) (“If the law of the state where the judgment was obtained would require the courts of that state to grant relief to judgment debtor, this state will similarly grant relief.”).

¶ 16. And if Cappaert sincerely believed the unfavorable judgment was the product of “ill practices” and thus void, this issue should have been specifically raised in the Louisiana appeal. By that point, Cappaert was certainly familiar with the order appointing Judge Cox, who presided over its trial. In fact, Cappaert crafted and presented its “ill practices” argument in Mississippi while its Louisiana appeal was still pending. And the Warren County Circuit Court postponed its ruling until the Court of Appeal of Louisiana issued its opinion on the judgment’s validity.

¶ 17. In Schwartz v. Hynum, this court found that the principle of res judicata applies to a challenge to the enrollment of a foreign judgment. Schwartz v. Hynum, 933 So.2d 1039, 1042-43 (¶¶ 11-15) (Miss.Ct.App.2006). In Schwartz, because the issue of personal jurisdiction had already been adjudicated in New Mexico, res judicata barred relitigation in the Mississippi foreign-judgment-enrollment proceeding of the issue of whether New Mexico properly asserted personal jurisdiction over the defendant. Id.

¶ 18. “Res judicata bars all issues that might have been (or could have been) raised and decided in the initial suit, plus all issues that were actually decided in the first cause of action.” Id. at 1042 (¶ 12) (quoting Estate of Anderson v. Deposit Guar. Nat’l Bank, 674 So.2d 1254, 1256 (Miss.1996)). Here, Cappaert did raise in the Louisiana appeal the issue of the scope of Judge Cox’s appointment and could have easily raised the issue of the validity of the appointment itself. But it did not. We therefore find the circuit court properly afforded the foreign judgment full faith and credit in Mississippi.

II. Amount of Damages

¶ 19. Cappaert also argues the amount of both judgments, when compared to the original purchase prices of both manufactured homes, is so excessive as to violate due process. However, the amount of a judgment, in itself, cannot form the basis for denying full faith and credit, as it is neither evidence of lack of jurisdiction nor extrinsic fraud. See Massie v. Minor, 307 Ill.App.3d 115, 240 Ill.Dec. 263, 716 N.E.2d 857, 862 (1999) (finding that the judgment debtor’s challenge to the amount of a judgment obtained in Mississippi was “not a matter of extrinsic fraud where Massie could have litigated it in Mississippi”). This is especially true here, where the amount of the award could have been, and in fact was, challenged in Louisiana. See Smith, 89 So.3d at 1246-7 (rejecting Cappaert’s argument that the judgment amounted to “double recovery”).

¶ 20. For these reasons, we affirm.

¶ 21. THE JUDGMENT OF THE WARREN 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, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.

      . Redhibition is a type of products-liability claim based on the allegation that the product purchased, in this case the mobile home, was so defective as to render the product useless.

      . The arbitration plaintiffs were equally successful in obtaining an award against Cappaert. And Cappaert was equally staunch in its efforts to have the arbitration award declared unenforceable. Chesne v. Cappaert Manufactured Housing, Inc., 111 So.3d 526, 528 (La.Ct.App.2013) (declaring “Cappaert's attempt to wipe out Plaintiffs’ legally obtained confirmation award [to be] unreasonable”).


author: FAIR, J.,

text:
    LEGACY HALL OF FAME, INC., Bill Kinard and Linda Kinard, Appellants v. TRANSPORT TRAILER SERVICE, INC., Larry Michael and Becky Michael, Appellees.
    No. 2012-CA-01978-COA.
    Court of Appeals of Mississippi.
    Jan. 21, 2014.
    Rehearing Denied May 27, 2014.

      Richard Shane McLaughlin, Nicole H. McLaughlin, Tupelo, attorneys for appellants.
    Kenneth Harold Coghlan, Oxford, Tommy Dexter Cadle, attorneys for appellees.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ This appeal arises from a motion to set aside a settlement agreement. On March 12, 2010, Bill Kinard and Linda Kinard, as directors of Legacy Hall of Fame Inc. (collectively “Legacy Hall”), filed a complaint in chancery court against Transport Trailer Service Inc., Larry Michael, and Becky Michael (collectively “Transport Trailer”), seeking delivery of a negotiated bus and money damages. Transport Trailer filed a counterclaim seeking $188,058.71 from Legacy Hall for attorneys’ fees and services rendered. The parties entered into a written settlement agreement on December 12, 2011. The bus was sold at auction in March 2012 to Transport Trailer. Four months later, Legacy Hall filed a motion to set aside the settlement agreement, claiming that Bill had lacked the mental capacity to agree to the settlement. The chancellor held an evidentiary hearing and found that the agreement was enforceable and that Bill was competent at the time he signed it. Legacy Hall appealed. After careful review, we affirm the chancellor’s decision.

FACTS

¶2. In 2009, Legacy Hall hired Transport Trailer to deliver a 1976 tour bus and a 1957 Cadillac from Yakima, Washington, to Tupelo, Mississippi. The tour bus and Cadillac were allegedly connected to Elvis Presley. Transport Trailer eventually delivered the Cadillac to Legacy Hall but refused to deliver the bus. Transport Trailer requested the sum of $188,058.71 for its services, which included retrieval of the vehicles and restoration of the bus.

¶3. Bill’s deposition was scheduled for December 12, 2011, at his attorney’s office in Tupelo. That same day, the parties reached an agreement to resolve the dispute. The settlement agreement gave Legacy Hall forty-five days to sell the bus and pay Transport Trailer $134,000 from the sale proceeds. The agreement further provided that if the bus did not sell within forty-five days, then the bus would be sold by a third party, with Transport Trailer receiving the first $134,000 from the proceeds of the sale.

¶ 4. Legacy Hall was unable to sell the bus within forty-five days. So, as stated in the settlement agreement, the bus was auctioned on March 31, 2012. Larry of Transport Trailer was the only bidder, winning the bus for $85,000. On July 26, 2012, Legacy Hall filed a motion to set aside the settlement agreement, alleging that Bill was incompetent on December 12, 2011, when he signed the agreement. The chancery court subsequently held an evi-dentiary hearing on the motion.

¶ 5. At the hearing, Legacy Hall called Dr. Deanna White, Bill’s physician and an internal medicine attending physician at North Mississippi Medical Center in Tupe-lo. Dr. White was introduced as a lay witness giving her opinion as Bill’s physician. Dr. White testified that she began treating Bill in April 2008 for several conditions, primarily bipolar disorder. Legacy Hall attempted to elicit Dr. White’s opinion on Bill’s competency before and after the agreement was signed.

¶ 6. Dr. White testified that she saw Bill three times in December 2011-December 5, 13, and 21. Dr. White stated that Bill was incompetent on December 5. Dr. White said that on December 13, Bill was “intact,” but not necessarily competent. As for December 21, Dr. White said that Bill was competent and capable of conducting business.

¶ 7. The chancellor also heard testimony from Bill, Linda, Larry, Ben Logan (Legacy Hall’s attorney at the time of the deposition), and Meah Bennett, the court reporter present at the deposition.

¶ 8. On November 15, 2012, the chancery court entered an order denying Legacy Hall’s motion to set aside the settlement agreement. The court also confirmed the sale of the bus to Transport Trailer. Aggrieved, Legacy Hall appealed.

STANDARD OF REVIEW

¶ 9. We employ a limited standard of review on appeals from chancery court. Miller v. Pannell, 815 So.2d 1117, 1119 (¶ 9) (Miss.2002). We will not disturb the factual findings of a chancellor so long as the chancellor’s findings were supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Biglane v. Under The Hill Corp., 949 So.2d 9, 13-14 (¶ 17) (Miss.2007). “We use a de novo standard when analyzing questions of law.” Id.

DISCUSSION

¶ 10. “[W]e apply contract law analysis to settlement agreements.” Chantey Music Pub’g Inc. v. Malaco Inc., 915 So.2d 1052, 1056 (¶ 11) (Miss.2005). The elements of a valid contract are: “(1) two or more contracting parties, (2) consideration, (8) an agreement that is sufficiently definite, (4) parties with legal capacity to make a contract, (5) mutual assent, and (6) no legal prohibition precluding contract formation.” GGNSC Batesville LLC v. Johnson, 109 So.3d 562, 565 (¶ 6) (Miss.2013) (citation omitted).

¶ 11. “[I]n order to prove that one is non compos mentis to [contract], it must be proven by clear and convincing evidence, rather than by a preponderance of the evidence, and must be proven by the proponent of that position.” Morgan v. Citizens Bank, 912 So.2d 1133, 1136 (¶ 13) (Miss.Ct.App.2005). The contracting party’s mental capacity is evaluated at the time the contract was executed. Mullins v. Ratcliff, 515 So.2d 1183, 1190 (Miss.1987).

¶ 12. On appeal, Legacy Hall first argues that the chancellor erred as a matter of law because he denied the motion to set aside the agreement solely based on the fact that Bill actually signed the settlement agreement. The record clearly shows that this assertion is incorrect.

¶ 13. In his bench opinion, the chancellor considered Bill’s mental state and specifically found that Legacy Hall failed to show that Bill was incompetent on December 12, 2011, when he signed the settlement agreement:

There is no testimony before me, medically speaking, expertly wise speaking, that [Bill] was incompetent on the 12th day of December of 2011. Even taking lay testimony at its best, and even Dr. White’s testimony[,] ... I do not find that there’s really any conclusive evidence here, medically or otherwise, that he was incompetent to execute a contract.

¶ 14. This argument is without merit.

¶ 15. Legacy Hall also argues that the chancellor clearly erred in finding that Bill was competent on December 12, 2011. Legacy Hall claims that its introduction of “uncontroverted medical testimony” showed Bill lacked the mental capacity to enter the agreement.

¶ 16. Dr. White was Legacy Hall’s first witness. Dr. White testified that, prior to December 5, 2011, she consulted with psychiatrists Dr. Mark Ramsey and Dr. Marianne Barnes concerning Bill’s admission to North Mississippi Medical Center’s Behavior Health Clinic. Dr. White’s medical records, including a consultation report from Dr. Barnes, were admitted into evidence. Dr. Barnes’s report showed that on November 3, 2011, she recommended that Bill be admitted to the clinic if he chose to do so. Dr. White testified that Bill chose not to be admitted.

¶ 17. Dr. White also testified to Bill’s mental state before and after the agreement was signed. Dr. White testified that Bill was incompetent on December 5. She also saw him on December 13, and said he was “intact,” but she could not say for certain that he was competent. Dr. White saw Bill a third time on December 21 and found him to be competent and capable of conducting business. Dr. White offered no testimony as to whether Bill was incompetent on December 12, 2011.

¶ 18. In addition, the court heard from several other witnesses before denying the motion to set aside the settlement agreement. Bill and Linda, along with Larry, testified to the events surrounding the events on December 12. Bill testified that he was under extreme stress, but he remembered signing the agreement.

¶ 19. Logan testified that he had no reason to suspect that Bill was incompetent on December 12, 2011. He also stated that he would not have let Bill sign the agreement if Bill seemed incompetent.

¶ 20. Bennett, who was present as a court reporter on the day the agreement was signed, testified that she spoke with Bill for thirty to forty-five minutes. She testified that Bill wore a large cross around his neck, saying that he was an ordained minister and, therefore, could not tell a lie. Bennett found this “a little odd,” but also stated that Bill did not seem to be under any extreme stress at that time. According to Bennett, Bill seemed “pretty calm” and discussed other topics. In his bench opinion, the chancellor stated that because Bennett was a disinterested party, the court must give great credibility to her testimony.

¶ 21. This Court’s “standard of review is indeed deferential, as we recognize that a chancellor, being the only one to hear the testimony of witnesses and observe their demeanor, is in the best position to judge their credibility.” In re Estate of Carter, 912 So.2d 138, 143 (¶ 18) (Miss.2005) (citing Culbreath v. Johnson, 427 So.2d 705, 708 (Miss.1983)).

¶ 22. The chancellor made it clear in his bench opinion that he was considering Dr. White’s testimony. We find that the chancellor was not clearly erroneous in finding that Legacy Hall did not overcome the presumption of competency. Therefore, we affirm the chancellor’s decision.

¶ 23. THE JUDGMENT OF THE CHANCERY COURT OF LEE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: IRVING, P.J.,

text:
    Raymond FORTENBERRY, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01961-COA.
    Court of Appeals of Mississippi.
    March 25, 2014.

      Office of State Public Defender by Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. A Pike County jury found Raymond Fortenberry guilty of aggravated assault, and the circuit court sentenced him to twenty years in the custody of the Mississippi Department of Corrections, with ten years suspended, teii years to serve, and five years of post-release supervision. Fortenberry filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied. Feeling aggrieved, Forten-berry appeals and argues that the verdict is against the overwhelming weight of the evidence because he acted in self-defense.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On the day of the incident giving rise to this charge, Fortenberry approached Delwin Robinson while Robinson was sitting on Robinson’s parents’ front porch. Fortenberry asked Robinson for a cigarette, and after Robinson gave him the cigarette, Fortenberry stood in the yard while he and Robinson chatted. Forten-berry made a disrespectful remark to Robinson’s father, who was outside mowing the lawn at that time. Robinson and For-tenberry began arguing, resulting in Robinson pushing Fortenberry. Fortenberry pushed him back, and Robinson responded with a punch. Robinson’s father broke up the fight and told Robinson to go inside the house. As Robinson was turning to walk away, he noticed that Fortenberry was walking toward him. Robinson walked back toward Fortenberry. Forten-berry then reached around Robinson’s father and punched Robinson in the face. The two began to tussle, and gunshots rang out. Robinson did not realize that he had been shot in the leg at that time, but noticed that Fortenberry had a gun in his hand. Robinson fell on top of Fortenberry as he was trying to wrestle the gun out of Fortenberry’s hand. Robinson’s father eventually separated the two men and retrieved Fortenberry’s gun.

¶4. Additional facts, as necessary, will be related in our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 5. Fortenberry claims that the circuit court erred in denying his motion for a new trial because the verdict is against the overwhelming weight of the evidence. Specifically, he argues that the evidence demonstrated that he acted in reasonable self-defense. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 886, 844 (¶ 18) (Miss.2005). “[T]he evidence should be weighed in the light most favorable to the verdict.” Id.

¶ 6. We have held that

[t]o make an assault justifiable on [the] grounds of self-defense, danger to the defendant must be either actual, pres-entí,] and urgent, or [the] defendant must have reasonable grounds to apprehend [a] design on the part of the victim to kill, or to do him some great bodily harm, and, in addition, there must be imminent danger of such design being accomplished.

Anderson v. State, 102 So.3d 304, 310 (¶ 23) (Miss.Ct.App.2012) (quoting Anderson v. State, 571 So.2d 961, 963 (Miss.1990)). Mississippi Code Annotated section 97-3-7(2)(a) (Supp.2013) states in pertinent part that

[a] person is guilty of aggravated assault if he (i) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly[,] or recklessly under circumstances manifesting extreme indifference to the value of human life; [or] (ii) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm[J

The State has the burden of proving that the defendant acted purposely or knowingly, and not in self-defense. Gilmore v. State, 119 So.3d 278, 285 (¶ 10) (Miss.2013). We note that Fortenberry did not testify at trial, and that Robinson was the only witness to testify regarding the incident. It is undisputed that Fortenberry purposely fired a gun at Robinson, striking him in the leg.

¶ 7. Fortenberry argues that he was in actual, present, and urgent danger when Robinson “knocked him down and punched him in the face.” He insists that Robinson intended to cause him great bodily harm, and that he acted in reasonable self-defense when he shot Robinson in the leg. We find no evidence that Fortenberry was in danger of imminent death or great bodily harm. Robinson’s testimony indicated that after Fortenberry punched him in the face, they started “wrestling.” His testimony does not reveal any action that would have led Fortenberry to reasonably believe that Robinson was trying to kill him or cause him great bodily harm. Also, according to Robinson’s testimony, Robinson was the initial aggressor, as Robinson admitted that he pushed Fortenberry first. However, after Robinson’s father stepped between them to break up the initial fight, Fortenberry became the aggressor when he reached around Robinson’s father and punched Robinson in the face.

¶8. As stated, Fortenberry’s argument is that he acted in self-defense. The jury was instructed to render a verdict in favor of Fortenberry if it concluded that Forten-berry had acted in self-defense when he shot Robinson. The jury is charged with making a determination of the facts. Here, the jury determined, from the evidence, that Fortenberry had not acted in self-defense when he shot Robinson. The record supports the jury’s findings, as the record shows that Fortenberry became the aggressor after Robinson’s father broke up the initial fight. As we have already stated, there is no evidence that Fortenberry was in danger of imminent death or great bodily harm at the hands of Robinson when Fortenberry shot Robinson in the leg. Therefore, allowing the verdict to stand would not sanction an unconscionable injustice. This issue is without merit.

¶ 9. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS SUSPENDED, TEN YEARS TO SERVE, AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A FINE OF $2,500 AND $4,289.59 IN RESTITUTION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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

      . Although Fortenberry argues in his appellate brief that Robinson knocked him down, there is no evidence in the record to that effect. As stated, Fortenberry did not testify, and Robinson did not testify to knocking For-tenberry down. The video recording of For-tenberry's interview was played for the jury. We reviewed that recording and found no clear evidence to that effect.