author: ROBERTS, J.,

text:
    Adrian WILLIAMS a/k/a Adrian K. Williams, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01958-COA.
    Court of Appeals of Mississippi.
    Feb. 25, 2014.

      Office of State Public Defender by Erin Elizabeth Pridgen, attorney for appellant.

      Office of the Attorney General by Brad Alan Smith, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. A jury in the Adams County Circuit Court found Adrian Williams guilty of the murder of Quinton Brown. Williams was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). Williams filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The circuit court denied these motions. Williams timely filed this appeal and asks this Court to determine whether the circuit court erred in failing to grant his motion for a new trial and whether his statement to law enforcement, officers about the location of the weapons was inadmissible. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 28, 2011, the body of Brown was discovered slumped over a curb of the road near the Natchez City Cemetery. The Natchez Police Department discovered a .380 pistol and a live nine-millimeter bullet near Brown’s body. Upon identifying Brown’s body, the police department began questioning his friends and family, including Williams. Williams gave a statement on May 28, 2011. In this statement, he said that he, Denzel Fort, and Keldrick Washington had been riding around town when Brown asked Williams for a ride. Williams said they dropped Brown off, and he had nothing to do with Brown’s murder.

¶ 3. Two days later, Williams provided another written statement. In this second statement, he claimed that he, Brown, and Fort drove to the cemetery to physically resolve an ongoing disagreement between Fort and Brown, but before the fight started, Brown pulled a pistol and shot one round. Williams said he reacted by shooting Brown once in self-defense. Fort grabbed the gun from Williams and shot Brown several more times. Shortly thereafter, Williams recanted this version and provided yet another written statement. In this third statement, Williams confessed he shot Brown six times, and he threw the two .357 magnum handguns he used in the Mississippi River.

¶ 4. After his last statement, Williams was placed in a holding cell in the booking area. Williams asked a booking officer if he could smoke a cigarette, and the officer informed him that he would not be able to smoke until he told officers where the guns were located. Approximately an hour later, Williams asked to speak with the booking officer. Williams told the booking officer and Investigator Jerry Ford that two .357 magnums and a .380 pistol were located in an abandoned house next to his mother’s house. Officers were able to locate the guns where Williams said they would be located. After officers found the guns, Williams was given a cigarette.

¶ 5. On March 28, 2012, an Adams County grand jury indicted Williams for the murder of Brown. Williams filed a motion to dismiss the indictment or suppress statements on October 25, 2012; the circuit court denied these motions because Williams voluntarily informed officers where the guns were located. Williams’s trial began on November 14, 2012, and ended the following day with the jury finding him guilty of the murder of Brown. The circuit court sentenced Williams to life imprisonment in the custody of the MDOC.

¶ 6. Williams filed a motion for a JNOV or, alternatively, a new trial. But his motion was denied. He filed the present appeal and raises the following issues for review:

I. Williams[’s] statements to police regarding the location of the guns should not have been admitted into evidence because the statements were the results of impermissible promises made by law enforcement.
II. The [circuit] court erred in failing to grant the motion for [a] new trial[,] as the verdict was against the overwhelming weight of the evidence.

ANALYSIS

I. Admissibility of Evidence

¶ 7. When reviewing the admissibility of evidence, an appellate court employs the abuse-of-discretion standard. Dunn v. State, 111 So.3d 114, 115 (¶6) (Miss.Ct.App.2013) (citing Catchings v. State, 39 So.3d 943, 950 (¶29) (Miss.Ct.App.2009)). “Determining whether a confession is admissible is a finding of fact which is not disturbed unless the trial judge applied an incorrect legal standard, committed manifest error, or [made a decision] contrary to the overwhelming weight of the evidence.” Balfour v. State, 598 So.2d 731, 742 (Miss.1992).

¶ 8. On October 25, 2012, Williams filed a motion to suppress evidence seized, including statements made after an alleged illegal search. In his motion, Williams asserted that while he was in a holding cell in the booking area, he asked a booking officer if he could smoke a cigarette. The booking officer responded that he could not until Williams told him where the guns were located. Approximately an hour passed, and Williams asked to speak with the booking officer again. He told the booking officer that the guns were located in an abandoned house next door to Williams’s mother’s house. The guns were recovered from that location; Williams was then allowed to smoke a cigarette. According to Williams, his statement telling officers the location of the guns was solely a result of the promise of a cigarette. Additionally, Williams filed a second motion to suppress the guns seized as a result of his statement because police did not have proof the home was abandoned and failed to secure a search warrant to search the home. The circuit court denied these motions and said: “[T]he motion[s] to suppress will be denied ... because [Williams] previously gave statements, and ... this [ (the promise of a cigarette) ] does [not] involve anything of his freedom .... [I]t’s a cigarette and not anything involving freedom or leniency about the charge against him[.]”

¶ 9. There is no dispute that prior to asking the booking officer for a cigarette, Williams had been advised of his Miranda rights and voluntarily waived them when he wrote two separate statements confessing his involvement with the murder of Brown. It was after he waived his Miranda rights and voluntarily wrote two statements that he requested a cigarette. The booking officer did tell Williams that he would give him a cigarette in exchange for information about the location of the guns used in the murder. The booking officer did not offer Williams any leniency for the crime. A defendant’s confession may be admissible only where the circuit judge finds the confession was intelligently, knowingly, and voluntarily made, rather than bargained for with promises, threats, or inducements by law enforcement officers. See Wilson v. State, 936 So.2d 357, 361 (¶ 8) (Miss.2006) (citing Manix v. State, 895 So.2d 167, 180 (¶ 39) (Miss.2005)).

¶ 10. Based on our review of the record, we cannot find that the circuit court abused its discretion in allowing Williams’s statement about the location of the guns. Williams had been read his Miranda rights and waived them prior to giving his other statements. The waiver of those rights is not at issue, and there is no argument that Williams did not know his statements could be used against him. Also, it was Williams who initiated the conversation with the booking officer by requesting a cigarette. The factual situation before us is unique, as most cases involve whether a defendant was offered leniency in exchange for a confession. In the present case, there was not an offer of leniency or threats of increased prison time for failure to cooperate or provide information. Instead, Williams was provided with the cigarette he requested in exchange for information about the location of the guns.

¶ 11. Assuming arguendo that Williams’s statement was given as a result of a promise, no matter how slight, “[t]he Mississippi Supreme Court has held that ‘errors involving a violation of an accused’s constitutional rights may be deemed harmless beyond a reasonable doubt where the weight of the evidence against the accused is overwhelming.’” Singleton v. State, 1 So.3d 930, 936 (¶ 17) (Miss.Ct.App.2008) (quoting Clark v. State, 891 So.2d 136, 142 (¶ 29) (Miss.2004)). The weight of the evidence against Williams was overwhelming, as evidenced by his written confession and other testimony. The weight of the evidence will be discussed in more detail in the next issue.

¶ 12. We find that the circuit court’s decision to allow the statement — based on Williams’s valid waiver of his Miranda rights coupled with the facts that Williams initiated the contact with the law enforcement by requesting a cigarette and that the promise to give him a cigarette did not involve his freedom — was not error. Assuming it was error, it was harmless.

II. Motion for a New Trial

¶ 13. We review the trial court’s denial of a motion for a new trial under the abuse-of-discretion standard. Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). A motion for a new trial is a challenge to the weight of the evidence. Beckum v. State, 917 So.2d 808, 812 (¶ 10) (Miss.Ct. App.2005) (citing Carr v. State, 774 So.2d 469, 472 (¶ 15) (Miss.Ct.App.2000)). This Court reviews challenges to the weight of the evidence by viewing “the evidence in the light most favorable to the verdict” and determining whether the verdict is “so contrary to the overwhelming weight of the evidence that to allow it to stand would bring about an unconscionable injustice.” Jones v. State, 95 So.3d 641, 647 (¶ 20) (Miss.2012) (citing Sanders v. State, 63 So.3d 497, 503 (¶ 18) (Miss.2011)). In reviewing the weight of the evidence supporting a verdict, this Court will not “pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted as having been found worthy of belief.” Massey v. State, 992 So.2d 1161, 1163 (¶ 12) (Miss.2008) (citing Moore v. State, 933 So.2d 910, 922 (¶ 43) (Miss.2006)).

¶ 14. Williams argues that the overwhelming weight of the evidence did not support a finding that he committed deliberate-design murder. According to Williams, there was no fingerprint evidence presented linking him to the guns involved, and the State did not disprove that he acted in necessary self-defense. Williams ultimately contends that “[t]he jury based its guilty verdict on weak evidence[.]”

¶ 15. Natchez Police Officer Juan McDonald testified that Williams and Fort voluntarily came to the police department and initially acted as each other’s alibi. Williams was advised of his Miranda rights, which he waived. Williams gave a written statement denying his involvement with the murder. On May 31, 2011, two days later and after again waiving his Miranda rights, Williams gave another written statement in which he claimed that while in the graveyard, Brown pulled a gun and fired one shot. Williams stated he reacted to that and shot Brown one time, and that Fort took the gun from Williams and shot Brown several more times. Later that same day, Williams gave another written statement. In this final statement signed by him, Williams stated that he was the only one that shot Brown, and he shot him six times. As was explained above, Williams also informed the police officers of what weapons he used and where they were located. The police officers retrieved these weapons, and Williams identified them as the weapons he used to murder Brown.

¶ 16. Lieutenant Craig Godbold testified that the guns recovered from the abandoned home were two .357s and one .380. Lieutenant Godbold noted that one .357 had four spent shell casings; the other .357 had six spent shell casings. Another .380 was recovered approximately a foot from Brown’s body. A live .380 bullet was recovered from the scene, but no spent .380 shells were recovered.

¶ 17. Fort testified on behalf of the State that he, Williams, Brown, and Washington were going to “test” their pistols at the cemetery when the shooting occurred, meaning they were going to shoot the pistols. Fort testified that Brown and Washington had .380s, Williams had a .357, and he had a 9 millimeter. Fort further explained that when they arrived at the cemetery, he stayed in the van to talk to his girlfriend, while Williams, Washington, and Brown walked down the hill. After hearing shots, Fort saw Washington running back to the van. Washington told Fort that Brown was dead. Fort also testified that when Williams got back to the van, he pulled a pistol on him and Washington and threatened them not to tell.

¶ 18. Carl Fullilove, a forensic scientist with the Mississippi Crime Laboratory, testified that he could not “make a positive identification” of the projectiles recovered to any of the guns recovered, but that the projectiles could be shot from the .357s but not a .380 or other semiautomatic weapon. He explained that the recovered projectiles could not have identifying characteristics due to the condition of the barrel of the firearms or the condition of the projectiles when they were recovered. Thus, they would be incredibly difficult to match to a particular gun, but could be matched to a particular class of guns, like a .357. However, he did testify that four projectiles shared characteristics with one of the ,357s recovered, and the other two projectiles shared characteristics with the other .357 recovered.

¶ 19. Based upon this evidence, we do not find that the circuit court erred in denying Williams’s motion for a new trial, because the weight of the evidence supports the guilty verdict. We note that Williams did not testify, as was his right, and the jury was nevertheless allowed to give “full effect” to the State’s evidence against him. See White v. State, 722 So.2d 1242, 1247 (¶ 27) (Miss.1998). Williams’s voluntary written confession to murdering Brown is a strong piece of evidence supporting the jury’s finding Williams guilty of murder. Although in one of his confessions Williams claimed he shot Brown after Brown shot his gun, nowhere in his final confession did Williams claim he was acting in self-defense. Also in his final confession, he acknowledged that he shot Brown six times; Brown had six gunshot wounds. This full confession to the crime was never called into question at trial. The jury also heard ballistics evidence, and although Fullilove could not testify positively that the projectiles came from the guns recovered, he did testify that the projectiles shared characteristics with the two .357s recovered — the same .357s Williams directed the police officers to recover from the abandoned home. The jury also considered the testimony of Fort. Although Fort was not an eyewitness, he testified that he heard the shots and that Williams threatened his life if he told what happened. Any concerns as to Fort’s credibility as a witness were for the jury to determine. See Harris v. State, 892 So.2d 830, 833 (¶ 9) (Miss.Ct.App.2004).

¶ 20. For the above reasons, we find this issue to be without merit.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Kevin REYNOLDS a/k/a Muhamad Rudul Ali a/k/a Kevin A. Reynolds a/k/a Muhamad Ali, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01566-COA.
    Court of Appeals of Mississippi.
    March 25, 2014.

      Office of State Public Defender by W. Daniel Hinchcliff, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. Kevin Reynolds a/k/a Muhamad Ali was convicted for the murder of Kevin Vandrell (Count I) and possession of a weapon by a felon (Count II). He was sentenced as a habitual offender to life for Count I and ten years for Count II, with the sentences to be served concurrently in the custody of the Mississippi Department of Corrections (MDOC), with credit for time served. Reynolds now appeals his convictions, and finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 31, 2011, Reynolds and an acquaintance, David Gross, went to the home of Kevin Vandrell, another acquaintance of Reynolds’s. Vandrell was alone, cooking dinner, when Reynolds knocked on the door and proceeded to walk inside before Vandrell could answer the door. This action angered Vandrell and prompted a heated disagreement between the two men, since this was not the first time that Reynolds had burst into Vandrell’s home unannounced. Vandrell ordered the men to leave. According to Gross, Vandrell followed them outside, “eall[ed Reynolds] the N word,” and fired a shot from a rifle into the air. After the two men had departed, Vandrell went to his neighbor’s house. The neighbor, Jules Ouder, said Vandrell was angry and upset and was carrying a “semi-automatic” rifle. Ouder also said that Vandrell was fearful for his life because “[Reynolds] told [Vandrell] you have not seen or heard the last of me.”

¶ 8. The following morning, Vandrell’s mother went to his house to pick up his mail, as was her normal routine, and noted that it did not appear he had left for work. Vandrell’s door was unlocked; so she went inside to investigate. She discovered Vandrell’s deceased body, with a gunshot wound to the head, and contacted law enforcement. In the meantime, Reynolds had repeatedly attempted to call Ouder that morning, but Ouder did not answer his phone until the third time. At that point, Ouder was unaware that Vandrell had been killed. Reynolds asked Ouder if he had seen Vandrell; Ouder said that he had not. Reynolds continued to call Ouder throughout the day, but Ouder refused to answer the calls once he learned about Vandrell’s death.

¶ 4. After speaking with Ouder, the Pearl River County Sheriffs Department determined that Reynolds was a person of interest. Two detectives, Scott Wagner and Shane Edgar, went to Reynolds’s home to question him. Initially, Reynolds acted as if he did not know Vandrell but eventually admitted that he knew the victim. During the questioning, Detective Edgar noted that Reynolds was “overly friendly,” but appeared “very nervous.” He also observed a paper plate nailed to a wooden post in Reynolds’s yard that appeared to have been used for target practice. Detective Edgar later testified that the holes in the plate “were about the size of a .22 caliber rifle round.” Law enforcement obtained a search warrant for Reynolds’s residence and arrested Reynolds upon returning, when he was uncooperative in granting them access to his property and acting in “an aggressive manner.” A “.22 caliber Marlin rifle” was seized from Reynolds’s home. It was later determined that Vandrell had been killed by a distant gunshot wound to the head. No projectile was recovered from the body, but a .22-caliber cartridge casing was found in Vandrell’s bedroom.

¶ 5. On December 7, 2011, Reynolds was charged for Count I, murder, and Count II, possession of a firearm by a felon. A jury trial was held August 13-15, 2012. At trial, Gross testified that, on August 31, he had taken Reynolds to run errands, and that he and Reynolds stopped at Vandrell’s home that evening. Reynolds and Vand-rell had an argument, and when Gross and Reynolds were leaving, Vandrell ran after them with a rifle that he pointed upwards, firing a shot into the air. Reynolds persuaded Gross to take him back to Vand-rell’s later that night; Reynolds took a rifle with him. Gross parked a block away and stayed in his truck. Gross claimed that Reynolds then got out of the truck, grabbed his rifle from the back, and went toward Vandrell’s home. Reynolds returned approximately fifteen minutes later and screamed at Gross, “What did you see? What did you hear?” Gross said he did not hear or see anything and pretended that he had been sleeping. The two men left and returned to Reynolds’s home. Ouder also testified regarding Yandrell’s anxious state of mind, that evening over his argument with Reynolds.

¶ 6. Reynolds was convicted on both counts. For Count I, Reynolds was sentenced to life, as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007), without eligibility for parole or probation; for Count II, he was sentenced to ten years. The sentences were ordered to be served concurrently in the custody of the MDOC, with credit for time served. Reynolds was also ordered to pay a fine of $1,000 and $1,585 in restitution to the Mississippi Crime Victims’ Compensation Program.

¶ 7. Reynolds filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The circuit court denied the motion, and Reynolds now appeals. Finding no error, we affirm.

DISCUSSION

I. Whether defense counsel’s performance constituted ineffective assistance of counsel.

¶ 8. Reynolds argues that his counsel rendered ineffective assistance by failing to: (1) stipulate to a prior conviction; (2) object to additional evidence of other bad acts; and (3) object to the submission of a “mis-worded and misleading circumstantial evidence” jury instruction.

¶ 9. For a defendant to prove a claim of ineffective assistance of counsel, he must show: “(1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense.” Whitfield v. State, 105 So.3d 385, 389 (¶ 16) (Miss.Ct.App.2012) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “There is a strong presumption that a counsel’s performance falls within the range of reasonable professional assistance.” Collins v. State, 70 So.3d 1144, 1147 (¶ 16) (Miss.Ct.App.2011) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). “To overcome this presumption, ‘the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

¶ 10. Generally, a claim of ineffective assistance of counsel will only be addressed on direct appeal when “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Gill v. State, 126 So.3d 128, 133-34 (¶ 27) (Miss.Ct.App.2013) (quoting Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999)).

The question presented is not whether trial counsel was or was not ineffective but whether the trial judge, as a matter of law, had a duty to declare a mistrial or to order a new trial sua sponte on the basis of trial counsel’s performance. “Inadequacy of counsel” refers to representation that is so lacking in competence that the trial judge has the duty to correct it so as to prevent a mockery of justice.

Id. at 134 (¶ 27) (quoting Colenburg, 735 So.2d at 1102 (¶ 8)). “Review of an ineffective-assistance-of-counsel claim on direct appeal is ‘confined strictly to the record.’ ” Id. (quoting Colenburg, 735 So.2d at 1102 (¶ 6)).

¶ 11. Reynolds argues that defense counsel failed to object to evidence presented that he claims showed that he was “a persistent bad actor.” First, he notes testimony and evidence provided by the Louisiana Department of Corrections records custodian that established Reynolds as a habitual offender. Reynolds contends that defense counsel should have stipulated to his prior felony conviction. However, the record clearly shows that defense counsel objected to the admission of this evidence, claiming that it was not the best evidence. Furthermore, counsel was under no duty to stipulate to Reynolds’s prior conviction. This Court addressed this same issue in Williams v. State, 819 So.2d 532, 538 (¶ 18) (Miss.Ct.App.2001), concluding:

Counsel could easily have seen a stipulation as running counter to her trial strategy. The record clearly shows that the only evidence elicited from the past conviction reports dealt with the type and date each crime was committed. These facts would have had to have been admitted to prove an element of the charge “felon in possession of a firearm.” Even if counsel had objected to the admission of this evidence, it would have justifiably been overruled. More importantly, counsel may have felt that a stipulation to these crimes would have given the jury the impression that the defendant had some reason to hide facts of the prior cases from them. “There is a strong, yet rebuttable, presumption that the actions by defense counsel are reasonably strategic.” The Appellant has not rebutted this presumption.

“Counsel’s decisions whether or not to file motions, call certain witnesses, ask certain questions, and make certain objections fall within the definition of trial strategy”; thus, these decisions do not amount to ineffective assistance of counsel. Pittman v. State, 121 So.3d 253, 258 (¶ 14) (Miss.Ct. App.2013) (citations omitted). We find Reynolds has failed to. rebut the presumption that counsel’s decision not to stipulate to the prior conviction was “reasonably strategic.”

¶ 12. Reynolds also alleges that defense counsel should have objected to Butch Rab/s testimony that Reynolds had “been in our jail.” Raby was a custodian of records for the Pearl River County Sheriffs Department and was called at trial to identify Reynolds. He did not testify as to any prior convictions. Again, the failure to object to such testimony falls under trial strategy and does not constitute ineffective assistance of counsel.

¶ 13. Reynolds also argues that his counsel’s performance was ineffective because counsel submitted, and was granted, an erroneous circumstantial-evidence jury instruction. However, as we will discuss in further detail below, the jury instruction was a correct statement of the law; consequently, its submission did not render counsel’s performance deficient.

¶ 14. Upon review, we find nothing in the record to indicate any obvious deficiencies by defense counsel. Therefore, this issue is without merit.

II. Whether the circuit court erred in giving a circumstantial-evidence instruction.

¶ 15. Reynolds claimed that it was error for the circuit court to give Jury Instruction 5, a circumstantial-evidence instruction, which stated:

The Court instructs the Jury that if the State has relied on circumstantial evidence to establish its theory of guilt of the Defendant, either as to Count One or Count Two of the Indictment, then the evidence for the State must be so strong as to establish the guilt of the Defendant, not only beyond a reasonable doubt, but the evidence must be so strong as to exclude every other reasonable hypothesis other than that of guilt.

Reynolds asserts the instruction submitted “was confusing, an inaccurate statement of the law, and placed the burden on the jury to determine whether the case was indeed a circumstantial case.” He further contends: “Aside from the notion that whether a case is premised solely on circumstantial evidence is a matter of law and therefore the domain of the trial judge, the jury [was] given no definition, nor instruction, to aid it making such a determination.”

¶ 16. Since Jury Instruction 5 was submitted by the defense, there was no objection to this jury instruction at trial. “[An a]ppellant has no standing to seek redress from an alleged error of his own creation.” Craft v. State, 970 So.2d 178, 182 (¶ 10) (Miss.Ct.App.2007) (quoting Evans v. State, 547 So.2d 38, 40 (Miss.1989)). Accordingly, this issue is proee-durally barred from review.

¶ 17. Moreover, Reynolds has failed to provide any support for his contention that Jury Instruction 5 was an improper circumstantial-evidence instruction and “misstated the law.” Although he claims that the wording of the circumstantial-evidence instruction has been refused by trial courts, he acknowledges that those cases were found not to be circumstantial, “the proof having either direct evidence or a confession/admission.” Furthermore, the model instruction for circumstantial evidence states:

The court instructs the jury that if the State has relied on circumstantial evidence to establish its theory of guilt of the defendant, then the evidence for the State must be so strong as to establish the guilt of the defendant, not only beyond a reasonable doubt, but the evidence must be so strong as to exclude every other reasonable hypothesis other than that of guilt.

Mississippi Model Jury Instructions: Criminal § 1.18 (2018). Notwithstanding the specific language relating to the individual counts, this model language is identical to the language contained in Jury Instruction 5.

¶ 18. Upon review, we find Jury Instruction 5 was a proper circumstantial-evidence instruction under the law. The Mississippi Supreme Court has held:

[W]here the evidence for the prosecution is wholly circumstantial in nature, the accused is entitled upon request to have the jury instructed that, before they may convict, they must find that each element of the offense has been established beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence.

Keys v. State, 478 So.2d 266, 267 (Miss.1985). A circumstantial-evidence instruction “must be given only where the prosecution is without a confession and wholly without eyewitnesses to the gravamen of the offense charged.” Id. Reynolds did not provide any confession and, while Gross did see Reynolds leave his truck with a gun, he was not an eyewitness to Vandrell’s murder.

¶ 19. We find no merit to Reynolds’s claim that the jury was improperly instructed.

III. Whether the circuit court erred in allowing inadmissible hearsay evidence to be presented to the jury.

¶ 20. Reynolds argues that Ouder’s testimony regarding what Vand-rell told him the night before his death “exceeded the scope of the exception to the hearsay rule by permitting hearsay within hearsay and opinion testimony from the witness.” The State claims that this issue is barred from appellate review due to the failure to object to Ouder’s testimony. See Jackson v. State, 832 So.2d 579, 581 (¶ 3) (Miss.Ct.App.2002) (“Failure to object at trial acts as a procedural bar in an appeal.” (citing Carr v. State, 655 So.2d 824, 853 (Miss.1995))). However, the record shows that defense counsel did assert a continuing objection to the line of questioning regarding what Vandrell had related to Ouder. The trial judge ruled that while Ouder’s testimony was hearsay, it was admissible because it went “to [Vandrell’s] then existing mental frame of mind or his present sense impression[.]” Thus, it fell under the hearsay exception of Mississippi Rule of Evidence 803(3).

¶ 21. We will not reverse a circuit court’s ruling on the admission or exclusion of evidence unless the court abused its discretion. Davis v. State, 904 So.2d 1212, 1215 (¶ 7) (Miss.Ct.App.2004) (citations omitted). At trial, Ouder testified: “[Vandrell] said this white guy [, Gross,] tried to get in between them and keep them apart and was telling them, you know, sit down[,] let’s smoke a cigarette, you know[,] let’s talk this out, stuff like that.” Reynolds claims this testimony constituted hearsay within hearsay because it related what Vandrell said to Ouder regarding Gross’s statements during the altercation.

¶ 22. “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.” M.R.E. 805. We find no merit to this claim by Reynolds, since Gross’s statement, as related by Ouder, did not constitute hearsay. “[T]o be deemed hearsay, the purpose of the testimony must be for the truth of the matter asserted.” Hobgood v. State, 926 So.2d 847, 853 (¶ 16) (Miss.2006). Ouder did not relay Gross’s statement to prove that Gross attempted to calm the situation between Reynolds and Vandrell; it was given to show that the two men had argued and that Vandrell was upset and frightened. Moreover, Gross testified at trial and reiterated what Ouder stated — that he stepped between Vandrell and Reynolds, attempting to keep peace between the two men. Consequently, we find that there was no “hearsay with hearsay” issue; but if there was, any error would be harmless, as Gross testified to the same event at trial.

¶ 23. Reynolds also claims Ouder’s testimony that Vandrell was in fear for his life was “simply speculation” and that it was inadmissible opinion testimony. Mississippi Rule of Evidence 701 provides:

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of [Mississippi Rule of Evidence] 702.

“[A] lay witness may testify regarding an opinion ‘that is based upon his personal perceptions, and that will help the jury fairly resolve a controverted, material fact.’ ” Hosey v. State, 77 So.3d 507, 517 (¶ 37) (Miss.Ct.App.2011) (quoting Marbra v. State, 904 So.2d 1169, 1174 (¶ 15) (Miss.Ct.App.2004)).

¶ 24. We observe that defense counsel did not make a specific objection on this ground, which would bar this particular assignment of error from review. Regardless, we find no merit to Reynolds’s argument. At trial, Ouder testified that Vand-rell came to his home after the argument with Reynolds and that Vandrell was carrying a rifle and concerned for his own safety. Ouder’s statement that Vandrell “feared for himself’ was rationally based on Ouder’s perception at the time. Ouder saw Vandrell with a gun, and Vandrell explained that he had the gun because he and Reynolds had argued. Ouder testified: “And I believe that’s why he was carrying a weapon because of the threat [by Reynolds.]” Therefore, Ouder’s testimony was admissible as lay opinion testimony, and we find no abuse of discretion by the circuit court in admitting the testimony.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY OF CONVICTION OF COUNT I, MURDER, AND COUNT II, POSSESSION OF A WEAPON BY A CONVICTED FELON, AND SENTENCE AS A HABITUAL OFFENDER OF LIFE, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, FOR COUNT I, AND TEN YEARS FOR COUNT II, WITH THE SENTENCES TO BE SERVED CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CREDIT FOR TIME SERVED; TO PAY A FINE OF $1,000; AND TO PAY $1,585 IN RESTITUTION TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION PROGRAM, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

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

      . Mississippi Rule of Evidence 803(3) says that "[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition” is not excluded by the hearsay rule.


author: LEE, C.J.,

text:
    In the Interest of C.B., a Minor, and K.B., a Minor.
    No. 2012-CP-00639-COA.
    Court of Appeals of Mississippi.
    April 8, 2014.
    Victoria Jacobs-Branson, appellant, pro se.

      Kelly G. Williams, attorney for appellee.
    Before LEE, C.J., ROBERTS and JAMES, JJ.
   FACTS AND PROCEDURAL HISTORY

LEE, C.J.,

for the Court:

¶ 1. On July 14, 2011, officers from the Jackson Police Department responded to the home of Minnie Jacobs. Jacobs’s daughter, Victoria Jacobs-Branson (“Bran-son”), had come to the home in the middle of the night exhibiting troubling and erratic behavior. She had damaged Jacobs’s home and had broken several windows. Also, Branson’s sister, Kathy Levy, believed that Branson had tried to bury her children. The officers found Branson and her two minor sons, eight-year-old Caleb and seven-year-old Kevin, hiding in a planter’s box in a neighbor’s carport. Instead of being taken into police custody, Branson was admitted to St. Dominic Hospital for psychiatric treatment. The officers placed Caleb and Kevin with Levy and filed a report with the Mississippi Department of Human Services (DHS).

¶ 2. On April 3, 2012, an adjudication hearing was held in Hinds County Youth Court. The court found that Caleb and Kevin were neglected children under Mississippi Code Annotated section 43-21-105(Z) (Supp.2013). The court ordered the children’s care and custody to remain with DHS for appropriate placement, and for both children to receive counseling until they are released.

STANDARD OF REVIEW

¶ 3. “The standard of review for [a youth court judgment] is the same as that of a chancellor^] whether the ruling was manifestly wrong [or] clearly erroneous, or [the court] applied an erroneous legal standard.” In re B.S., 105 So.3d 1120, 1121-22 (¶ 6) (Miss.2013) (internal quotations omitted).

DISCUSSION

¶ 4. Branson argues on appeal that there was no evidence to support the youth court’s determination that Caleb and Kevin were neglected under section 43-21-105(Z). Section 43-21-105(Z) defines a neglected child as one:

(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter; or
(ii) Who is otherwise without proper care, custody, supervision or support; or
(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether the mental condition is having mental illness or having an intellectual disability; or
(iv) Who, for any reason, lacks the care necessary for his health, morals or well-being.

¶ 5. At the adjudication hearing, Sharon Douglas, a family-protection specialist with DHS, testified that during her interview with Caleb, he stated that while walking to Jacobs’s house in the middle of the night, Branson had put him headfirst into a garbage can and pushed him in the garbage can. Caleb also stated than Bran-son did not feed him, and he indicated that she had hurt him but would not elaborate any further. During Douglas’s interview with Kevin, he stated that Caleb was put into a garbage can because “he was dirty.” Kevin also stated that Branson had “put a knife to [Kevin’s] neck.” Kevin told Douglas that Branson made him lie in a hole in the backyard to bury him, although she never covered him with dirt. Kevin disclosed the burying incident during his forensic evaluation at the Children’s Advocacy Center.

¶ 6. Additionally, Douglas spoke to Branson. Branson admitted to threatening Kevin with a knife, which she already had in her hand because she was in the kitchen cooking. When Douglas spoke to Levy, she explained that Branson had an extensive history involving similar incidents in the past and had been hospitalized many times before. Branson has a histoiy of bipolar disorder, and at the time of the incident, she was believed to be off her medication.

¶ 7. Branson testified at the hearing. She stated that she pushed Caleb down the street in a neighbor’s wheelbarrow— not a trash can. She also claimed that she did not attempt to bury Kevin alive. Instead, she stated that she and Kevin had lain in the backyard and looked up at the stars. Additionally, she denied ever admitting to Douglas that she threatened Kevin with a knife. Branson also testified that she had been diagnosed as bipolar. While she had been prescribed anxiety medication, she had not taken it in three weeks.

¶ 8. From the record, it is clear that the youth court found Douglas to be a more credible witness. There is nothing in the record to show that the court was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. This issue is without merit.

¶ 9. THE JUDGMENT OF THE HINDS COUNTY YOUTH COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . The names of the children have been changed to protect their identities.


author: LEE, C.J., CARLTON, J.,

text:
    Milton HARPER, Deceased, by and through his Dependents, Maggie HARPER and Andrea Harper, Appellant v. BANKS, FINLEY, WHITE & CO. OF MISSISSIPPI, P.C., Appellee.
    No. 2012-WC-00811-COA.
    Court of Appeals of Mississippi.
    April 15, 2014.

      Willie T. Abston, attorney for appellant.
    Phillip Andrew Laird Jr., William Anthony Davis III, H. Thomas Wells III, attorneys for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   LEE, C.J.,

for the Court:

¶ 1. This appeal arises from the Hinds County Circuit Court’s decision reversing the Mississippi Workers’ Compensation Commission (the Commission) and finding that Milton Harper’s conduct disqualified him from receiving workers’ compensation benefits. As we find the Commission’s decision was supported by substantial evidence, we reverse the judgment of the circuit court and reinstate the decision of the Commission.

FACTS AND PROCEDURAL HISTORY

¶ 2. Harper was the managing partner and president of the accounting firm Banks, Finley, White & Company of Mississippi (Banks). He was first diagnosed with high blood pressure on January 4, 1995, by Dr. Marvin Jeter. In October 1995, Harper went to the emergency room after becoming dizzy. At that time, Dr. Jeter began prescribing him blood-pressure medication. Harper saw Dr. Jeter four times from 1995 until 1998. During that time, Harper would intermittently take his blood-pressure medication, which resulted in his blood pressure ranging from normal to elevated.

¶ 3. On August 3, 2000, Harper was rushed to the emergency room at St. Dominic Hospital. Dr. Jeter examined Harper, noted that he had not been taking his blood-pressure medication, and concluded that he had suffered a stroke. Dr. Jeter referred Harper to Dr. Salil Tuwari, a neurologist. After a series of tests, it was determined that Harper had suffered multiple small-vessel strokes in the brain.

¶ 4. After resting for two weeks, Harper returned to work, initially part-time and then to his usual full-time schedule of 8:00 a.m. until 6:30 or 7:30 p.m. However, Harper did not work as many weekends as he did prior to his stroke.

¶ 5. In the early morning of Sunday, July 8, 2001, Harper woke up to go to the restroom. When he returned, Harper’s wife, Maggie, asked him a question, and Harper responded with unintelligible noises and became nonresponsive. Harper was taken by ambulance to the University of Mississippi Medical Center, immediately put on life support in the intensive-care unit, and never regained consciousness. On July 10, 2001, Harper was taken off life support and died from the stroke he had suffered two days earlier.

¶ 6. On July 29, 2002, Maggie and her daughter, Andrea Harper, filed two petitions to controvert with the Commission, seeking workers’ compensation benefits for Harper’s strokes on August 3, 2000, and July 8, 2001. The administrative judge (AJ) found that Harper’s strokes were too proximally connected to separate and combined the cases. The AJ held a hearing that began on September 25, 2008, and concluded on November 12, 2008.

¶ 7. The AJ found Maggie and Andrea proved that Harper’s work-related stress caused his high blood pressure, which, in turn, caused his stroke on August 3, 2000, and his death on July 10, 2001. The AJ found that Maggie and Andrea proved a compensable workers’ compensation claim, and that Banks did not prove Harper had a preexisting condition to warrant denial of the claim or apportionment.

¶ 8. Banks appealed to the Commission, which heard the case on December 7, 2009. The Commission affirmed the AJ’s findings with regard to the compensability of the claim. However, the Commission held that Harper had a clearly identifiable preexisting condition that materially contributed to his death, and it apportioned the benefits by sixty-five percent. One commissioner dissented, stating that he would deny the claim because the stroke was not in any way work related.

¶ 9. Banks appealed to the Hinds County Circuit Court. The circuit court agreed that substantial evidence supported the Commission’s findings that: (1) Harper’s strokes arose out of and in the course of employment; (2) Harper was an officer of a corporation; and (3) Harper’s workers’ compensation benefits should be apportioned. But the circuit court reversed the Commission’s judgment because it found that Harper’s decision not to obtain workers’ compensation insurance disqualified him from receiving benefits that he would have otherwise been entitled to receive.

¶ 10. Harper now appeals, arguing: (1) coverage was not waived under Mississippi Code Annotated section 71-3-79 (Rev. 2011); and (2) his injury was compensable.

STANDARD OF REVIEW

¶ 11. The standard of review in a workers’ compensation case is well settled. If the findings of the Commission are supported by substantial evidence, then they are binding on this Court. Mitchell Buick, Pontiac & Equip. Co. v. Cash, 592 So.2d 978, 980 (Miss.1991). “The [Commission] sits as the ‘ultimate finder of facts’ in deciding compensation cases, and therefore, ‘its findings are subject to normal, deferential standards upon review.’ ” Pilate v. Int’l Plastics Corp., 727 So.2d 771, 774 (¶ 12) (Miss.Ct.App.1999) (quoting Natchez Equip. Co., Inc. v. Gibbs, 623 So.2d 270, 273 (Miss.1993)). “We are bound even though the ‘evidence would convince the [C]ourt otherwise if it were instead the ultimate fact[-]finder.’ We will overturn [the] Commission’s decision only when there is an error of law or an unsupportable finding of fact.” Montana’s Sea Kettle Rest. v. Jones, 766 So.2d 100, 102 (¶ 7) (Miss.Ct.App.2000) (internal citation omitted) (quoting Walker Mfg. Co. v. Butler, 740 So.2d 315, 320 (¶ 19) (Miss.Ct.App.1998)).

DISCUSSION

I. EXCLUSION OF COVERAGE

¶ 12. As president of Banks, Harper was responsible for making decisions regarding insurance. Even though Banks had at least five employees and was obligated to obtain coverage under Mississippi Code Annotated section 71-3-5 (Rev.2006), Harper erroneously determined that Banks did not have the requisite number of employees to legally mandate Banks to purchase workers’ compensation insurance. Based on that determination, Banks chose not to obtain the insurance.

¶ 13. Banks argued before the Commission that Harper could not receive workers’ compensation benefits because it was his decision not to obtain the insurance and therefore opt out of the coverage. While under section 71-3-79 an executive officer can elect to exclude himself from workers’ compensation insurance coverage, this exclusion must be in writing. The Commission found that Harper could not have “elected not to be covered as an executive officer because there was no policy from which he could have otherwise excluded himself.”

¶ 14. At the circuit court level, Banks argued that it was unjust for the Commission to hold that Harper was covered for failure to opt out under section 71-3-79, because it was Harper’s decision that Banks not acquire workers’ compensation insurance. The circuit court found this argument compelling and denied Harper benefits. On appeal, Banks asserts that when Harper affirmatively elected not to procure workers’ compensation insurance for either himself or his firm, he also affirmatively elected not to be covered under the act.

¶ 15. When applying a statute, a court must determine if the language of the statute is ambiguous. If a statute is not ambiguous, the court should apply the plain meaning of the statute. City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992). Section 71-3-79 clearly states that an “executive officer may reject [the] coverage by giving notice in writing to the carrier of this election not to be covered as an employee.” At no point did Harper reject the coverage by giving notice in writing. The Commission’s finding that Harper did not opt out of coverage is supported by substantial evidence. This issue is without merit.

II. COMPENSABLE INJURY

¶ 16. In his petition to controvert, Harper seeks death benefits under Mississippi Code Annotated section 71-3-25 (Supp.2013). For Harper’s death to be covered under Mississippi’s workers’ compensation statutes, his death must have resulted from an injury that “ar[ose] out of and in the course of employment!.]” Miss. Code Ann. § 71-3-3(b), (c) (Rev.2011). For the injury to arise out of employment, there must be “a causal connection between the employment and the injury.” Singley v. Smith, 844 So.2d 448, 453 (¶20) (Miss.2003). One is injured in the course of employment when an injury results from an activity that was actuated partly by a duty to serve the employer or was reasonably incident to the employment. Id.

¶ 17. The AJ, the Commission, and the circuit court agreed that the injury arose out of the course and scope of Harper’s employment. The Commission looked to the testimony of Dr. John Davis, a neurosurgeon who had never examined Harper, which stated that Harper’s strokes were caused by his high blood pressure. The Commission also relied on Dr. Jeter’s testimony that Harper’s significantly stressful work aggravated his high blood pressure to some degree and was a contributing cause of his death. Dr. Jeter also noted in his testimony that Harper had no other risk factors for vascular disease except high blood pressure.

¶ 18. Maggie testified that Harper was a “workaholic,” and that he was “constantly working.” She also stated that Harper kept saying that he was getting behind at work and having problems balancing being out of town for audits and trying to manage the office at the same time. Harper’s coworkers Kaiser Brown and Dian Parkinson both testified that Harper worked from 8:00 a.m. until 6:30 or 7:00 p.m. on week nights and usually worked some on the weekends. Additionally, Parkinson stated that Harper had more responsibilities than anyone else at Banks because he was the president. The Commission agreed with the AJ’s findings that the injuries arose out of the course and scope of Harper’s employment, but found that Harper’s preexisting condition of high blood pressure materially contributed to his death. We find this decision was supported by substantial evidence. Because the Commission’s decision was supported by substantial evidence, we reverse the judgment of the circuit court and reinstate the Commission’s judgment, including the apportionment of benefits by sixty-five percent.

¶ 19. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND RENDERED, AND THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS REINSTATED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J.

CARLTON, J.,

dissenting:

¶ 20. I respectfully dissent. I submit that the decision of the Commission is not supported by substantial evidence. See Lott v. Hudspeth Ctr., 26 So.3d 1044, 1048 (¶ 12) (Miss.2010); Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1245-47 (Miss.1991). The record fails to support a finding that Harper’s employment caused or contributed to his chronic failure to treat, and hence control, his established high blood pressure. The record shows that his high blood pressure continued unabated over the course of many years and that he took his medicine intermittently. No evidence in the record, or in the Commission’s decision, indicates that Harper’s employment prevented him from taking his medicine or from accessing the pertinent medical services or medicines. The record indicates that Harper knew he suffered from high blood pressure for many years. Yet he failed to comply with the treatment, resulting in chronic, untreated high blood pressure.

¶ 21. The record reflects that Dr. Davis, a neurosurgeon, testified that Harper’s death was caused by a brain hemorrhage, which resulted from uncontrolled high blood pressure, and was not caused or contributed to by his employment. The Commission’s opinion acknowledges that Harper’s death was largely due to uncontrolled high blood pressure and that the condition, in and of itself, is not work related. The Commission nonetheless found Harper’s death compensable, but apportioned the benefits.

¶ 22. However, I submit that the record fails to show how Harper’s employment prevented him from seeking treatment for his high blood pressure. The record shows that the Commission’s order even acknowledged that Harper failed to take his blood-pressure medicine even though his high blood pressure had been repeatedly documented. The Commission also acknowledged that a hypertensive hemorrhage in the brain is the most common complication of chronically untreated high blood pressure. The Commission further provided that the most common place to suffer such a brain hemorrhage was the basal ganglia, which was where Harper suffered his hemorrhage.

¶ 23. The crux of the issue is that Harper failed to treat his high blood pressure and allowed his hypertension to be chronically uncontrolled, thereby causing his death by a brain hemorrhage. I thus find that the Commission’s decision determining that Harper’s death was compensable is not supported by substantial evidence. See generally Guy v. B.C. Rogers Processors Inc., 16 So.3d 29, 37 (¶¶ 30-31) (Miss.Ct.App.2008). I would therefore affirm the decision of the circuit court.

IRVING, P.J., JOINS THIS OPINION.


author: GRIFFIS, P.J.,

text:
    FORREST GENERAL HOSPITAL, Appellant v. Michael HUMPHREY, Appellee.
    No. 2013-WC-00424-COA.
    Court of Appeals of Mississippi.
    April 15, 2014.

      Joseph O’Connell, Hattiesburg, Gary K. Jones, Jackson, attorneys for appellant.
    William H. Jones, Daniel Austen Silk-man, Petal, attorneys for appellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Forrest General Hospital appeals the determination by the Mississippi Workers’ Compensation Commission that Michael Humphrey suffered a compensa-ble, work-related injury. The hospital argues that (1) the Commission erred when it based its finding of compensability on the hospital’s voluntary payments of medical expenses and compensation benefits; and (2) the Commission’s decision was not supported by substantial evidence. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Humphrey was employed as a security officer by the hospital. On May 14, 2008, Humphrey claims that he injured his back while he and two other security officers tried to restrain a young psychiatric patient who became violent and made a disturbance. The hospital’s surveillance cameras captured the incident. The video revealed that Humphrey, along with the other officers and members of the medical staff, helped to restrain the uncooperative psychiatric patient after the patient was tackled and taken to the ground. Humphrey held one arm of the patient. Humphrey claims that this effort caused him to pull a muscle in his lower back. Humphrey then assisted the other officers as they rotated the patient on the floor, so he could be handcuffed, and eventually lifted and placed the patient on a stretcher.

¶ 3. Humphrey did not seek medical attention for the next several months. Humphrey testified that he felt he pulled a muscle in his back during the altercation and “didn’t think much about it” after-wards. Humphrey, however, testified that the pain from the injury did not go away and even got worse, though he continued to work through it.

¶ 4. Humphrey testified that he was hesitant to file a workers’ compensation claim even as his back injury worsened. Humphrey claimed that he was concerned about how the hospital’s management would treat him due to the difficulty one of his fellow officers, Jerry Wade, faced after he filed a workers’ compensation claim.

¶ 5. Humphrey first sought treatment for his back with Dr. Glenn Campbell, a general practitioner, on January 7, 2009, seven months after the accident. Dr. Campbell ordered an MRI of his back. Dr, Campbell referred Humphrey to Dr. David Clark Lee, a board-certified neurosurgeon.

¶ 6. At about the same time, Humphrey informed the hospital that he wanted to file a workers’ compensation claim for the back injury he sustained on May 14, 2008. Thus, just a few days before he was scheduled for his MRI, Humphrey reported his injury. Sergeant Ronnie Mills, the first sergeant of the hospital’s security department, prepared an employee-occurrence report on Humphrey’s behalf. Humphrey testified that the hospital paid for his medical treatments and provided indemnity benefits until the employer-medical evaluations were conducted, at which time such benefits ceased.

¶ 7. Humphrey filed a petition to controvert on April 2, 2009. The petition alleged that Humphrey sustained an injury to his back on May 14, 2008, while he acted in the course and scope of his employment. The hospital responded to the petition and denied that Humphrey sustained a work-related injury or that his claim was com-pensable. Humphrey’s employment with the hospital ended on February 28, 2011.

¶ 8. On September 14, 2011, the workers’ compensation administrative judge (AJ) held a hearing on compensability. In addition to the testimony discussed above, Humphrey was cross-examined about previous ailments and injuries, including a heart attack and a cervical fusion on his neck. The video of the May 14, 2008 incident was introduced at the hearing.

¶ 9. In addition, several of Humphrey’s coworkers testified at the hearing. Sergeant Mills and Ken Ritchey witnessed the May 14 altercation that allegedly caused Humphrey’s injury. Sergeant Mills and Ritchey both corroborated Humphrey’s testimony about the altercation. Ritchey testified that Humphrey’s back problems began after the May 14 altercation. Other witnesses testified about Humphrey’s frequent complaints of a back injury, as well as activities he conducted that involved heavy lifting during the time of his back injury.

¶ 10. Dr. Lee testified that he initially treated Humphrey for a neck injury that occurred in 2006, upon a referral from Dr. Campbell. Dr. Lee stated that Humphrey informed him of the back injury caused by the May 14 altercation during his February 2009 visit. Dr. Lee reviewed the MRIs ordered by Dr. Campbell, and determined that Humphrey had degenerative-disc disease with disc bulging at L2 to L5. Dr. Lee treated Humphrey with lumbar-epidural shots and physical therapy. Dr. Lee opined, to a reasonable degree of medical certainty, that the altercation with the mental patient could have aggravated or exacerbated his degenerative-disc disease.

¶ 11. Dr. Eric Amundson, a board-certified neurosurgeon, and Dr. David C. Col-lipp, a board-certified physical-medicine and rehabilitation specialist, were both asked by the hospital to conduct an employer medical evaluation on Humphrey. After a review of Humphrey’s medical records and an examination, both opined with a reasonable degree of medical certainty that the altercation with the mental patient on May 14, 2008, was not causally connected to Humphrey’s back injury.

¶ 12. On June 4, 2012, the AJ issued an order that found that Humphrey met his burden of proof and concluded that Humphrey suffered a compensable, work-related injury on May 14, 2008. The judge specifically noted:

Inherent in this decision is the fact that the employer initially accepted the claim and paid benefits, medical and indemnity, for some period of time. Also compelling is the testimony of various lay witnesses[,] as the import of the testimony and the clear indication would be that this employer was aware and had knowledge of the situation and facts surrounding the same.

¶ 13. The hospital filed a petition for review with the Commission. On February 7, 2013, the Commission affirmed the AJ’s decision. The hospital now appeals the Commission’s decision, and the appeal has been assigned to this Court.

STANDARD OF REVIEW

¶ 14. This Court employs a substantial-evidence standard of review to resolve a workers’ compensation case; however, the standard of review is de novo when the issue is one of law and not of fact. Hugh Dancy Co. v. Mooneyham, 68 So.3d 76, 79 (¶ 6) (Miss.Ct.App.2011). “Absent an error of law, we must affirm the Commission’s decision if there is substantial evidence to support the Commission’s decision.” Id. (citing Shelby v. Peavey Elecs. Corp., 724 So.2d 504, 506 (¶ 8) (Miss.Ct.App.1998)). “In a workers’ compensation case, the Commission is the trier and finder of facts.” Id. (citing Radford v. CCA-Delta Corr. Facility, 5 So.3d 1158, 1163 (1120) (Miss.Ct.App.2009)). lithe Commission’s order is supported by substantial evidence, this Court is bound by the Commission’s determination, even if the evidence would convince us otherwise if we were the fact-finder. Id. “On the other hand, reversal is proper where the Commission has misapprehended the controlling legal principles, as the standard of review in that event is de novo.” Id.

ANALYSIS

1. Whether the Commission erred when its based its findings on the hospital’s initial voluntary payments of medical and compensation benefits.

¶ 15. The hospital argues that the Commission’s findings were erroneous as to compensability for Humphrey’s back injury based on the initial voluntary payments of medical expenses and compensation benefits. It also argues the decision was erroneous because it violated the hospital’s statutory right to pay workers’ compensation claims on a voluntary basis, and the voluntary payments were improperly used as evidence of compensability.

¶ 16. In support of its argument, the hospital cites Mississippi Code Annotated section 71-3-37 (Rev.2011):

(1) Compensation under this chapter shall be paid periodically, promptly, in the usual manner, and directly to the person entitled thereto, without an award except where liability to pay compensation is controverted by the employer.
(4) If the employer controverts the right to compensation he shall file with the commission, on or before the fourteenth (14th) day after he has knowledge of the alleged injury or death, a notice in accordance with a form prescribed by the commission, stating that the right to compensation is controverted, the name of the claimant, the name of the employer, the date of the alleged injury or death, and the grounds upon which the right to compensation is controverted. Failure to file this notice shall not prevent the employer raising any defense where claim is subsequently filed by the employee, nor shall the filing of the notice preclude the employer raising any additional defense.

(Emphasis added). Based on this statute, the hospital contends that an employer may initially pay benefits to a claimant on a voluntary basis without any prejudice to the employer’s ability to challenge the compensability of a claim or raise any other defenses. Hence, the hospital claims that the Commission may not rely solely on the evidence of an employer’s initial payment of medical claims and benefits to determine the compensability of the worker’s claim.

¶ 17. The hospital also cites Mississippi Rule of Evidence 409 as justification for this argument. Rule 409 provides that “[e]vidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.”

¶ 18. We must consider whether the Commission, as the fact-finder, may rely on the evidence of an employer’s initial voluntary payment of medical benefits to determine the compensability of the worker’s claim.

¶ 19. The Commission is not bound by a strict adherence to the Mississippi Rules of Evidence. Miss.Code Ann. § 71-3-55(1) (Rev.2011). See also Sanderson Farms Inc. v. Johnson, 68 So.3d 67, 75 (¶ 21) (Miss.Ct.App.2010). Mississippi Rule of Evidence 1101(a) provides that “[ejxcept as otherwise provided by subdivision (b), these rules apply to all actions and proceedings in the courts of the State of Mississippi.” No supreme court decision has held that the Commission is a “court” such that workers’ compensation proceedings must adhere to the Mississippi Rules of Evidence. In fact, Commission Procedural Rule 8 provides direction for evidence considered by the Commission:

GENERAL RULES OF EVIDENCE RELAXED. In compensation hearings the general rules of evidence shall be relaxed so as to permit the introduction of any relevant and competent evidence. There shall be excluded from the record, however, by motion of either party or at the direction of the administrative judge, any matters that are libelous or of a personal nature which do not in the opinion of the administrative judge have a direct bearing on the case at hand. All other matters sought to be introduced, and which are accepted by the administrative judge over the objection of either party, shall become a part of the record with the objection properly shown.

¶ 20. We find no case precedent, statute, or common-law authority that prohibits the Commission from relying upon payment of benefits as evidence of the compensability of a workers’ compensation claim. Neither the supreme court nor this Court has addressed this issue.

¶ 21. The hospital cites Rankin v. Averitt Express, Inc., 115 So.3d 874, 879 (¶ 118) (Miss.Ct.App.2013), which affirmed a decision by the Commission that denied com-pensability of a claim where the employer initially paid medical expenses and compensation benefits. However, neither Rankin nor any other Mississippi case determines that a voluntary payment is inadmissible as evidence of compensability. If the only evidence of compensability was the employer’s initial payment of medical and compensation benefits, we would agree that such a rule would restrict the ability of employers to challenge a claim’s com-pensability once some benefits were voluntarily paid. As a result, such a rule would abrogate the employer’s statutory right to contest the occurrence of a work-related injury and the compensability of the claim. Further, to allow such evidence would also discourage employers from making initial payments of medical and compensation claims to an injured worker.

¶ 22. That is not the issue here. The AJ considered the testimony of the lay witnesses as being just as “compelling” as the voluntary payments of benefits in reaching the decision of compensability. Hence, the Commission did not solely rely on the employer’s initial payments of medical and compensation benefits to Humphrey in order to make a determination of compensability. The Commission considered other evidence in addition to the employer’s voluntary benefit payments. Based on the standard of review, we find no error in the Commission’s decision.

2. Whether the Commission’s decision was based on substantial evidence.

¶23. Next, the hospital argues that the Commission’s decision was not supported by substantial evidence. The Commission is the finder of fact. Daniels v. Peco Foods of Miss. Inc., 980 So.2d 360, 365 (¶ 16) (Miss.Ct.App.2008). In such a capacity, the Commission must evaluate and determine the weight of the evidence. Id. This Court must defer to the Commission’s findings and not reweigh the evidence. Short v. Wilson Meat House LLC, 36 So.3d 1247, 1251 (¶ 23) (Miss.2010). “So long as the record contains credible evidence which, if believed, would support the Commission’s determination, we must affirm.” McCarty Farms, Inc. v. Banks, 773 So.2d 380, 387 (¶ 29) (Miss.Ct.App.2000).

¶ 24. We find that the Commission’s decision was supported by substantial evidence. We will not restate the evidence discussed above. However, we find that several witnesses corroborated Humphrey’s complaints of a back injury related to the May 14 altercation. The hospital completed an occurrence report and began to pay medical and compensation benefits for Humphrey’s back injury. Further, the medical testimony supported the Commission’s decision. Dr. Lee testified that Humphrey’s back injury was causally connected to the May 14 altercation. Dr. Collipp’s opinion, which contradicted Dr. Lee’s opinion, even acknowledged that Humphrey had a “previous lumbar strain” based on the May 14 altercation.

¶ 25. The hospital argues that the lay testimony was insufficient to find that Humphrey’s claim was compensable. It argues that while the lay testimony supported Humphrey’s complaints of back problems, such complaints were not within the eight-month time period between the injury and when he first reported it. The hospital also criticizes other evidence, such as the video surveillance of the accident, as well as the time it took for Humphrey to seek treatment for his back injury. However, our limited standard of review precludes this Court from an analysis that reweighs the evidence. Instead, we must decide only if there was substantial evidence to support the Commission’s decision. We find that there was substantial evidence to support the Commission’s decision. Therefore, it is affirmed.

¶ 26. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J„ NOT PARTICIPATING.


text:
    Heidi MATLOCK, Appellant v. MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, Gordon Flake and Nancy Todd, Appellees.
    No. 2009-CP-01869-COA.
    Court of Appeals of Mississippi.
    April 15, 2014.

      Heidi Matlock, appellant, pro se.
    Jennifer Louise Morgan, John Thomas Lamar Jr., Senatobia, Scott Watson Weatherly Jr., attorneys for appellees.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Heidi Matlock brings this pro se appeal to challenge the chancellor’s judgment that found her to be in contempt and in arrears for failing to pay child support for her minor child and ordered the minor child’s birth certificate to be corrected to his original name given at birth. We affirm.

FACTS

¶ 2. This case considers the custody of a minor, whom we will refer to as “Jason” to maintain his confidentiality. Jason was born on March 3, 1996. Heidi is his mother. Kevin Flake is his father. Gordon and Nancy Flake (the “Flakes”) are his paternal grandparents. Jason had resided with the Flakes since 1998.

¶ 3. On July 9, 2002, Heidi and the Flakes filed a joint petition for custody. The petition asked that Jason be placed in the custody of the Flakes. The chancellor entered an order that awarded temporary custody of Jason to the Flakes and ordered Heidi and Kevin to pay child support.

¶ 4. On December 4, 2008, the Mississippi Department of Human Services (MDHS) filed a petition for contempt against Heidi. The petition alleged that Heidi was $20,914.96 in arrears on her child-support obligation. In this action, during her appeal, Heidi revealed that she had changed Jason’s birth certificate in Tennessee. The birth certificate changed Jason’s last name and listed Heidi’s current husband as Jason’s father.

¶ 5. On May 5, 2009, the Flakes filed a motion that asked the chancellor to restore Jason’s birth certificate to its original state. The motion included an affidavit signed by Kevin; in the affidavit, Kevin testified that he was Jason’s natural father, and the birth certificate was altered without his knowledge or consent.

¶ 6. On August 24, 2009, the chancellor entered a judgment of contempt against Heidi. The order found that Heidi was $10,164.84 in arrears for delinquent child support. The chancellor also continued his consideration of the birth-certificate issue until October 27, 2009. At that time, the chancellor entered an order that granted the motion to change Jason’s birth certificate to his original name.

¶ 7. On November 12, 2009, the chancellor granted Heidi the right to file an indigent appeal. On November 16, 2009, the Tate County Chancery Clerk signed and filed a pleading that indicated a notice of appeal had been filed with the Supreme Court of Mississippi.

STANDARD OF REVIEW

¶ 8. In domestic-relations cases, this Court “will not disturb a chancellor’s judgment when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous, or [applied] an erroneous legal standard^]” Rolison v. Rolison, 105 So.3d 1136, 1137 (¶ 4) (Miss.Ct.App.2012) (citations and quotations omitted). Questions of law, however, are reviewed de novo. Price v. Price, 22 So.3d 331, 332 (¶ 8) (Miss.Ct.App.2009) (citation omitted).

DISCUSSION

¶ 9. Heidi has filed an initial and reply brief, both pro se. The initial brief is titled “Plaintiffs Trial Memorandum,” and it indicates that it is filed “In the United States District Court of Appeals Mississippi Supreme Court at Jackson.”

¶ 10. Heidi’s brief states the following issues:

1. Do the actions of Gordon and Nancy Flake constitute a deprivation of civil rights pursuant to 42 U.S.C. § 1985(3)?
2. Can the Plaintiff seek attorney’s fees and court costs under 42 U.S.C. § 1988(b)?
3. Can Gordon and Nancy Flake keep my son against his will, without any permission? (18 U.S.C. § 1201).
4. Why have the Flakes not been arrested for federal kidnapping?

¶ 11. At the outset, we recognize that our review must consider the fact that Heidi has chosen to act as her own counsel in this appeal. In Harvey v. Stone County School District, 862 So.2d 545, 549 (¶ 9) (Miss.Ct.App.2003), this Court ruled:

The supreme court has held that “pro se parties should be held to the same rules of procedure and substantive law as represented parties.” However, the supreme court has also held that we will “credit not so well pleaded allegations so that a [pro se] prisoner’s meritorious complaint may not be lost because inart-fully drafted.” Our courts will also allow the same deference to pro se litigants in civil actions.

(Citations omitted). Later, we noted that “pleadings filed by pro se litigants are to be held ‘to less stringent standards than formal pleadings drafted by lawyers.’ ” Id. at 551 (¶ 17).

¶ 12. Following this direction, we must note that the issues raised by Heidi in this appeal were not the issues decided by the chancellor in this case. Our review is limited to the chancellor’s decision that held Heidi in contempt and restored Jason’s original name on the birth certificate.

¶ 13. Neither Heidi’s original brief nor her reply brief addresses the issues decided by the chancellor. Instead, Heidi argues that the Flakes are guilty of “federal kidnapping” and the withholding of Jason since 2002. She also claims that Kevin is not Jason’s father. These issues were decided in 2002 or earlier and are not properly before this Court in this appeal.

¶ 14. We find that Heidi has presented no legal argument that is supported by a citation to legal authority or evidence in the record that would substantiate any claim that the chancellor’s judgment was erroneous and should be reversed. It is well-settled law that if an appellant fails to support her assignment of error with authority or argument, the Court need not consider the issue. Entergy Miss. Inc., v. Bolden, 854 So.2d 1051, 1057 (¶ 18) (Miss.2003). Here, Heidi’s failure to cite any legal authority or evidence in the record to support an assignment of error regarding the chancellor’s order (or to even address it for that matter) constitutes a waiver her issues on appeal. Id. (citation omitted).

¶ 15. Further, following the direction to hold pro se litigants to a less stringent standard, we have found nothing in the record that would lead us to find reversible error in the chancellor’s decisions that are before us. Certainly, this Court does not possess jurisdiction or any authority to consider or address the alleged “federal kidnapping” and federal civil-rights violations that Heidi has discussed in her brief.

¶ 16. Accordingly, we find no reversible error and affirm the chancellor’s judgment.

¶ 17. THE JUDGMENT OF THE CHANCERY COURT OF TATE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

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

      . Heidi’s appeal was dismissed on February 25, 2009, by order of the Mississippi Supreme Court, based on lack of appellate jurisdiction. Streukens v. Miss. Dep’t of Human Servs., 2009-TS-00189.


text:
    RESIDENTIAL ADVANTAGE DEVELOPMENT, LLC and Matthew Avery, Appellants v. EXECUTOR, ADMINISTRATORS, DEVISEES, BENEFICIARIES, and ASSIGNS OF HEIRS-AT-LAW OF Dwight Tyrone ROSS, Marvin Fisher, Dwight T. Ross, Jr., Donna M. Ross, John Lees Ross and Catherine Ross, et al., Appellees.
    No. 2012-CA-01996-COA.
    Court of Appeals of Mississippi.
    April 15, 2014.

      Christopher Solop, Otis Johnson, Travis Jonathan Conner, Jackson, attorneys for appellants.
    Donna Ross Philip, attorney for appel-lees.
    Before LEE, C.J., ROBERTS and JAMES, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Residential Advantage Development LLC and Matthew Avery (collectively “RAD”) appeal the Hinds County Chancery Court’s grant of the Ross family’s request for permanent injunctive relief. At issue is Lot 20, Block F of Beverly Heights, Part 2, located in Hinds County, owned by the Ross family, but upon which RAD, which owns Lot 21, mistakenly built a residence. RAD asks this Court to determine whether the chancery court erred in failing to consider ejectment as an available equitable remedy. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 24, 2009, RAD was issued a forfeited tax land patent covering Lot 21, Block F of Beverly Heights, Part 2. RAD constructed a residence on an empty lot it believed to be Lot 21; however, the empty lot was actually Lot 20, belonging to the Ross family. It was not until the construction was complete that RAD had a survey conducted, and it was discovered that the residence was built mistakenly on Lot 20 instead of Lot 21.

¶ 3. Following this discovery, RAD filed suit on May 12, 2011, requesting the chancery court impose a constructive trust on the lot and, following a trial on the merits, compel the Ross family to sell Lot 20 to RAD for the unimproved value of the lot. The Ross family filed its answer and a counterclaim for injunctive relief in the form of a permanent injunction for RAD to remove the residence from Lot 20.

¶ 4. Trial began in the chancery court on May 29, 2011. RAD presented three witnesses at trial: Craig Lipka, Kenneth Williams, and Kenneth Avery. Lipka, a managing partner of RAD, testified that according to Mississippi land databases, the lot RAD owned was vacant and unimproved, when in actuality, the prior owner, who had owned Lots 21 and 22, had built a house on Lot 21 and not on Lot 22 as the city land databases indicated. He also testified to the extent of difficulty and cost RAD would incur to move the residence off of the Ross family’s lot. Lipka also testified that RAD would be willing to compensate the Ross family for the original, unimproved lot, or should the Ross family want to keep the lot, have the chancery court award RAD the cost of the residence, as it is an improvement on the lot. On cross-examination, Lipka acknowledged that if RAD had conducted a survey of the lot prior to beginning construction, it would have become apparent that it was not the correct lot. But Avery later testified that a pre-construction survey is generally not done in a platted subdivision recorded with the county or city “unless there would be some reason to assume that [there] was an issue with the lot line or an encroachment or something else.” Both Lipka and Avery testified that RAD never received notice from the Ross family or anyone in the community that it could be building on the wrong lot.

¶ 5. Williams, a certified residential appraiser, testified that the value of Lot 21, in its vacant and unimproved state, was approximately $7,100, and that the appraisal values of Lot 20 and Lot 21 would be substantially similar.

¶ 6. The Ross family provided the testimony of Dwight Ross. Ross testified that the family owned several adjacent lots in the area, and had no intention of selling those lots, as there may have been future commercial or mixed-use zoning opportunities. According to Ross, “[w]e wanted to control ... what was being placed next to our commercial lots[,] and that [is] why we definitely did not have intentions of selling [Lot 20] or even putting anything on it.” Ross also testified that while he had seen construction of a residence in that area, he could not tell that it was on the Ross family’s lot and knew that two lots in the area did not belong to his family on which the residence could be constructed. There was no other evidence that any members of the Ross family knew that RAD was constructing a residence on their lot but remained silent on the mistake until construction was complete.

¶ 7. The chancery court entered an order on June 7, 2012, granting the Ross family permanent injunctive relief and ordering RAD to remove or demolish the house built on the Ross family’s lot within ninety days. RAD filed a motion to alter or amend the judgment, and a hearing before the chancery court was held on August 24, 2012. Then, on November 9, 2012, the chancery court entered an order denying RAD’s motion to alter or amend the judgment. RAD filed the present appeal.

¶ 8. On appeal, RAD raises three issues:

I. Whether the [chancery] court committed error in not granting relief codified under the Mississippi ejectment statutes.
II. Whether the [chancery] court committed error in its exclusive reliance on Turner v. Morris[, 196 Miss. 297, 17 So.2d 205 (1944)].
III. Whether the [chancery court] committed error in providing inequitable relief.

ANALYSIS

¶ 9. The standard of review for a denial of a motion under Mississippi Rule of Civil Procedure 59 is abuse of discretion. Perkins v. Perkins, 787 So.2d 1256, 1261 (¶ 9) (Miss.2001). On appeal, a chancery court’s findings of fact will not be disturbed absent a finding that the findings are manifestly wrong or clearly erroneous. Lowrey v. Lowrey, 25 So.3d 274, 285 (¶ 26) (Miss.2009) (citing Sanderson v. Sanderson, 824 So.2d 623, 625 (¶ 8) (Miss. 2002)). “Even if this Court disagreed] with the [chancellor] on the finding of fact and might have arrived at a different conclusion, we are still bound by the chancellor’s findings unless [the findings are] manifestly wrong[.]” Richardson v. Riley, 355 So.2d 667, 668 (Miss.1978).

¶ 10. The crux of RAD’s argument is that the chancery court erred in failing to consider and apply ejectment, pursuant to Mississippi Code Annotated section 11-19-95 (Rev.2004), as a proper equitable remedy, and, based on the statute, the chancery court should have awarded RAD the value of the improvements to the Ross-family lot, less applicable rent and damages.

¶ 11. After hearing all the evidence, including RAD’s argument that ejectment was a viable remedy, the chancery court found that the Ross family should not be forced to pay RAD for the mistaken improvements, nor should they be required to convey RAD the property due to RAD’s mistake, particularly because the mistake was due to RAD’s failure to conduct a survey of the property before construction. The chancery court stated: “The only true equitable relief the [chancery c]ourt can provide ... is for [RAD] to bare [sic] the cost of their own mistake and to make the Ross [family] whole again by having the home demolished.”

¶ 12. As the chancery court pointed out in its order, “[t]he general rule is that a landowner is entitled to an injunction directing the removal of a trespassing structure on his land erected thereon by the owner of adjoining land.” Turner, 196 Miss. 297, 302, 17 So.2d at 207. Further, “[t]he facts that the aggrieved owner suffers little or no damage from the trespass[,] ... that the wrongdoer acted in good faith and would be put to disproportionate expense by removal of the trespassing structures[,] ... and that neighborly conduct as well as business judgment would require acceptance of compensation in money for the land appropriated, ... are ordinarily no reasons for denying an injunction.” Id. (citation omitted). The chancery court was presented with RAD’s ejectment argument, but did not find it to be persuasive, as relief on that ground was not granted or addressed in the chancery court’s opinion.

¶ 13. Additionally, in Ruff v. Estate of Ruff, 989 So.2d 366, 370 (¶ 14) (Miss.2008) (quoting Rotenberry v. Hooker, 864 So.2d 266, 271 (¶ 17) (Miss.2003)), the Mississippi Supreme Court stated:

[W]here the mistake is of so fundamental a character ... where an unconscionable advantage has been gained, by mere mistake or misapprehension; and there was no gross negligence on the part of the plaintiff, either in falling into the error, or in not sooner claiming redress; and no intervening rights have accrued; and the parties may still be placed in status quo; equity will interfere, in its discretion, in order to prevent intolerable injustice.

The supreme court held that “even if [Philip] Ruff satisfied all the conditions set forth in Rotenberry, the chancellor nevertheless retained discretion on whether to grant equitable relief[,]” and “still reserves discretion on whether equity should interfere.” Id. at (¶ 17) (internal citation omitted). Thus, assuming RAD was not grossly negligent in failing to conduct a survey prior to beginning construction, the chancery court had discretion in granting other equitable relief. It is clear that, in this case, the chancery court declined to exercise such discretion.

¶ 14. There is no dispute that RAD will suffer financial loss based on the chancery court’s decision; however, based on our standard of review, the evidence in the record, and the relevant case law, we cannot find that the chancery court abused its discretion in granting the Ross family’s request for injunctive relief and denying RAD’s motion to alter or amend the judgment. This issue is without merit.

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

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

      . While it is generally our practice to refer to parties by their proper names, for the sake of clarity we will refer to the appellees collectively as the "Ross family.” The individual appellees are as follows: the executor, administrators, devisees, beneficiaries, and assigns of the heirs-at-law of Dwight Tyrone Ross; Marvin Fisher; Dwight T. Ross Jr.; Donna M. Ross; John Lees Ross; Catherine Ross Parker a/k/a Catherine Lynett Hardin a/ka Catherine Ross Strickland; et al.

      . Avery testified to the following:
      "Well, as it turns out, the city had [Lot 20 and Lot 21's prior owner's] house on the wrong lot or [the prior owner] built the house on the wrong lot. His house should have been one ... lot [farther] east. [The prior owner] built on the western most of two lots that he owned, which put his house on the wrong lot, which ... moved us one lot over."

      . RAD did not raise an ejectment argument before the chancery court until closing arguments at trial and in its post-trial motion, and ejectment was not raised in RAD’s complaint or response to the Ross family’s counterclaim. The Ross family never sought relief under the ejectment statute.