text:
    Frank Culley FIRMIN v. Gregory Todd FIRMIN, et al.
    No. 13-401.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.

      Robert A. Mahtook, Jr., Lisa M. Milaz-zo, Kaitlin J. Dyer, Mahtook & LaFleur, Lafayette, LA, for Defendant/Appellee, Oasis Sports Bar & Grill.
    Theodore G. Edwards, IV, Rachel B. Godley, Davidson, Meaux, Sonnier, McElli-gott, Fontenot, Gideon & Edwards, Lafayette, LA, for Plaintiff/Appellant, Frank Culley Firmin.
    Randy M. Guidry, Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Defendant/Appellee, Gregory Todd Fir-min.
    Michael L. Barras, New Iberia, LA, for Defendant/Appellee, James Michael Spieh-ler.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

h The plaintiff in this matter alleges that he was injured as a result of an altercation with his brother. The plaintiff filed suit against the brother, one of his brother’s acquaintances, and the bar where the altercation occurred. The bar filed a motion for summary judgment seeking dismissal of the plaintiffs claims against it. The trial court granted the motion and dismissed the plaintiffs claims against the bar. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that the plaintiff, Frank Culley Firmin, and his brother, Gregory Todd Firmin, were involved in an altercation at the Oasis Sports Bar & Grill, LLC. The parties do not agree as to how the altercation occurred, including which party was the aggressor.

According to Culley, he intended to meet someone at Oasis. Culley alleges that Gregory was already at the bar and was drunk and belligerent. According to Culley, while he was trying to text message his friend to arrange another meeting place, Gregory “jabbed” him in the chest. He told Gregory not to do that again, but Gregory hit him again, causing Culley to drop his phone. At this point, Culley contends that he “wrapped [Gregory] up[.]” Other patrons of the bar, including defendant James Michael Spielher, “took Culley down to the floor, and ... held [him] pinned to the floor.” Culley contends that no one restrained Gregory. While Culley was pinned to the floor, Gregory struck him in the face.

Gregory offered a different version of the altercation. According to Gregory, Culley was accusing him of “sabotaging” his life. He admitted to poking 12CuIIey in the chest, but only in an effort to get Culley to listen to him. Gregory alleges that Culley “choked him off’ after that. Gregory claims that “everything went dark” and that he saw Gulley’s face and hit him. According to Gregory, he does not remember getting out of the choke hold.

Mr. Spiehler also testified that Gregory poked Culley in the chest, although Mr. Spiehler testified that Gregory poked Cul-ley with the neck of a beer bottle. According to Mr. Spiehler, Culley told Gregory “don’t do that again.” Apparently Gregory poked Culley again. Mr. Spiehler testified that Culley “got aggressive” and grabbed Gregory around the neck. Although Mr. Spiehler could not say whether or not Culley was choking Gregory, he stated that “[i]t appeared to be a pretty aggressive move to me.” According to Mr. Spiehler, when he tried to pull Culley off Gregory, he and Gregory tripped and fell to the ground.

Culley testified that he was disoriented and needed medical attention and that his phone was broken. According to his deposition, the bar manager would not call 9-1-1, and instead had her daughter drive him to the emergency room. Culley also testified that as a result of being struck in the face, his left eye was dislocated from the socket, and he had orbital fractures.

Thereafter, Culley filed this action against Gregory, Mr. Spiehler, and Oasis. Culley’s claims against Oasis can be summed up as allegations that: 1) Oasis had knowledge of prior bar fights on its premises, but failed to provide adequate security, including security personnel; and 2) Oasis failed to provide him with adequate medical treatment after the fight. Oasis subsequently filed a motion for summary judgment contending that it owed no duty to Culley and seeking to have all of Culley’s claims against it dismissed. After a hearing, the trial court granted the motion for summary judgment and dismissed Culley’s claims against Oasis.

laCulley appeals, asserting that:

1. The Trial Court erred in concluding that no genuine issues of material fact remained with regard to the liability of Oasis under the applicable Louisiana law as applied to the relevant facts in this matter.
2. The Trial Court erred in granting Oasis’s Motion for Summary Judgment considering the Plaintiff demonstrated that Oasis is liable to him pursuant to Louisiana’s applicable law.

Discussion

Motion for Summary Judgment

Motions for summary judgment are reviewed de novo on appeal using the same criteria the trial court uses to determine whether summary judgment is appropriate. Arkell v. Lafayette City-Parish Consol. Gov’t, 09-918 (La.App. 3 Cir. 2/3/10), 28 So.3d 1248. A motion for summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code CivJP. art. 966(B)(2). Further,

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he ■will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2). Additionally, “an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as | ¿otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial.” La.Code Civ.P. art. 967(B).

Duty to Protect Others from the Criminal Activities of Third Parties

The plaintiff first argues that the trial court erred in finding that Oasis did not have a duty to provide “security and protection to its patrons.” In Posecai v. Wal-Mart Stores, Inc., 99-1222 (La.11/30/99), 752 So.2d 762, the supreme court addressed claims that a business failed to provide adequate security, and, because of that failure, the patron was the victim of a criminal act by a third party. The supreme court found that in order to succeed on such a claim, the plaintiff must prove all of the elements of the duty-risk analysis, including 1) that the conduct in question was the cause-in-fact of the resulting harm; 2) that the defendant owed a duty of care to the plaintiff; 3) that that duty was breached by the defendant; and 4) that the risk of harm was within the scope of protection afforded by the breach. Id. The plaintiff must also show that he or she suffered actual damages. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270.

In cases such as this one, the issue of whether a duty is owed is a threshold issue. Posecai, 752 So.2d 762. Further, whether a duty is owed is a question of law. Id. Generally, a business owner has no duty to protect others from the criminal activities of third persons. Id. However, a duty can arise “when the criminal act in question was reasonably foreseeable to the owner of the business.” Id. at 766.

Ultimately, the supreme court in Posecai adopted a balancing test for determining whether a business owed a duty to protect others from the criminal activities of others. Posecai, 752 So.2d 762. The supreme court adopted the following test:

UThe foreseeability of the crime risk on the defendant’s property and the gravity of the risk determine the existence and the extent of the defendant’s duty. The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business. A very high degree of foreseeability is required to give rise to a duty to post security guards, but a lower degree of foreseeability may support a duty to implement lesser security measures such as using surveillance cameras, installing improved lighting or fencing, or trimming shrubbery. The plaintiff has the burden of establishing the duty the defendant owed under the circumstances.
The foreseeability and gravity of the harm are to be determined by the facts and circumstances of the case. The most important factor to be considered is the existence, frequency and similarity of prior incidence of crime on the premises, but the location, nature and condition of the property should also be taken into account. It is highly unlikely that a crime risk will be sufficiently foreseeable for the imposition of a duty to provide security guards if there have not been previous instances of crime on the business’ premises.

Id. at 768. Additionally, the applicable duty does not change when a patron is attacked by another guest rather than a third party. Fredericks v. Daiquiris & Creams of Mandeville, L.L.C., 04-567 (La.App. 1 Cir. 3/24/05), 906 So.2d 636, writ denied, 05-1047 (La.6/17/05), 904 So.2d 706.

Ultimately, in Posecai, 752 So.2d 762, the supreme court declined to find that a business had a duty to provide security where, even though the business was in a high-crime area, there had been few prior incidents of the type complained of. In Posecai, the plaintiff complained that she was mugged in the parking lot of a Sam’s Club. There was evidence that only three “crimes against the person” occurred on Sam’s premises in the six-and-a-half years preceding the incident, one of which happened after business hours and one of which was related to a domestic violence incident. Based primarily on this evidence, the supreme court found that there was insufficient foreseeability to impose a duty on Sam’s to provide security patrols or lesser security measures. Id. See also Mackey v. Jong’s Super Value # 2, 41,440 (La.App. 2 Cir. 9/27/06), 940 So.2d 118; Pinsonneault, 816 So.2d 270.

In contrast, in Adams v. Traina, 36,306 (La.App. 2 Cir. 10/25/02), 830 So.2d 526, writs denied, 02-2844, 02-2898 (La.2/7/03), 836 So.2d 101-102, there was a history of criminal conduct similar to that which caused the plaintiff harm. Given that history, the second circuit found that there was sufficient foreseeability to impose a duty on the business to provide adequate security. In Adams, the plaintiff, a bystander, was seriously injured during a shooting in the parking lot of a “bottle club.” One of the defendants not only owned the shopping center that contained the club, but also owned and operated a package liquor store in the same building where most of the club’s patrons would purchase alcohol. The alcohol was consumed in either the club or the parking lot. There was evidence that the owner did not have any security for either the liquor store or the parking lot. Further, the owner knew that there were problems with people drinking and fighting in the parking lot, including previous shootings in the parking lot and a stabbing in the club itself. The plaintiff also submitted evidence that the police had been called twenty-five times in the past two years for reports of violence in the parking lot, twenty-four of which involved guns. Based on this evidence, the second circuit found that the plaintiff had submitted sufficient evidence to establish that the owner had a duty to provide security for the parking lot. Id. See also Patton v. Strogen, 39,829 (La.App. 2 Cir. 8/17/05), 908 So.2d 1282, writ denied, 05-2397 (La.3/17/06), 925 So.2d 548.

In cases where the combatants were both patrons of the same business establishment, the duty owed by the business does not change. Fredericks, 906 So.2d 636. In Fredericks, the plaintiff was assaulted in the parking lot by several other patrons of the defendant bar. The plaintiff contended that the bar had inadequate security and that, before the attack, his attackers had been staring at him |7and flirting with his girlfriend inside the bar. The plaintiff also testified that he considered the bar a “classy” place and that he did not know his attackers before that evening. Additionally, the bar introduced evidence that there had never been any violent incidents at the bar before this one and that nothing had occurred inside which alerted the bar’s employees to the possibility of trouble. Based on this evidence, the first circuit found that there was nothing to indicate that the bar owed any duty to “prevent this attack on” the plaintiff. Id. at 645. See also Taylor v. Stewart, 95-1743 (La.App. 1 Cir. 4/4/96), 672 So.2d 302.

In this case, both Culley and Gregory’s deposition testimony indicated that the bar had no security. Oasis submitted evidence that indicated that Culley, Gregory, and Mr. Spiehler all considered Oasis to be a “decent and peaceful place” over the last few years. Further, both Gregory and Mr. Spiehler testified that they had been frequent customers at Oasis for more than five years. However, Gregory testified that he had heard about other fights at the bar, but had only witnessed one.

Culley asserted that there had been an earlier incident where another patron had gotten into a fight in the parking lot and had died as a result of injuries suffered during the fight. According to Culley, this incident was sufficient to put Oasis on notice that it needed to implement security measures. Culley submitted into evidence a copy of a lawsuit filed concerning the earlier incident, including an affidavit from Kathryn Westley, who had been bar-tending at Oasis for more than ten years. In her affidavit, she stated that fights were a “rare occurrence” at the bar. Further, Ms. Westley averred that the plaintiff in that case refused medical treatment. A police report submitted into evidence indicated that the police | ^responded to the scene and that the plaintiff refused medical treatment for a head injury. According to the police report, the plaintiff died the next day as a result of the head injury.

Based on our review of the evidence in the record, Oasis successfully pointed out an absence of factual support for Culle/s claim that Oasis had a duty to provide adequate security under the facts of this case. Thus, according to La.Code Civ.P. art. 966(C)(2), Culley was required to produce factual support sufficient to establish that he would be able to satisfy his eviden-tiary burden at trial. Our review reveals that Culley failed to do so. Although there are conflicting accounts about who instigated the altercation and how the altercation occurred, those facts are not determinative of whether Oasis had a duty to provide security to protect patrons from the criminal activities of third persons. Thus, the dispute concerning the details of the altercation are not material facts for the purposes of this motion for summary judgment. See Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730.

Further, the defendants presented deposition testimony indicating that Oasis was a “decent and peaceful place” in the years before this incident. That testimony is supported by Ms. Westley’s affidavit which stated that fights were a “rare occurrence!;.]” Culley submitted no evidence indicating how often the police had been called to Oasis and, if so, how many of those incidents concerned violent encounters. Compare with Patton, 908 So.2d 1282; Adams, 830 So.2d 526. Although Culley asserts that the earlier incident — in which a patron unfortunately lost his life as a result of injuries suffered during a fight in Oasis’s parking lot — is sufficient to require that Oasis provide security, that incident occurred more than a year and a half before the altercation at issue here. See Posecai, 752 So.2d 762.

| pSimilarly, although many of the details of who instigated the altercation and how it proceeded are in dispute, Culley presented no evidence of actions before the fight began that would notify Oasis or its employees that “trouble was imminent[.]” Fredericks, 906 So.2d at 645. Nor did Culley submit any evidence that there was any “time or opportunity to warn [Culley] or prevent the attack on him once it began.” Id.

Following Posecai, 752 So.2d 762, we find that Culle/s submission is insufficient to indicate that he will be .able to establish that Oasis possessed the requisite foreseeability of the crime risk so as to impose a duty to post security guards or other, lesser, security measures. Culley’s argument in this regard is without merit.

Duty to Notify the Authorities

Culley also asserts that Oasis failed to contact the authorities once the altercation had begun. In Rodriguez v. New Orleans Public Service, Inc., 400 So.2d 884, 887 (La.1981), a pre-Posecai case, the supreme court stated that a proprietor’s duty to keep its premises safe from unreasonable risks of harm “can be discharged by the summoning of those entrusted by law with the power of immediately maintaining the peace, the police, at the time the proprietor knows or should reasonably know of the third person’s intention and apparent ability to execute the intended acts.” However, there are two flaws to Culley’s argument.

First, Culley has presented no evidence that Oasis knew or should have reasonably anticipated that Gregory presented any danger or that, if it did, it had time to contact the police between having knowledge of the potentially dangerous situation and the start of the fracas. See Borne v. Bourg, 327 So.2d 607, 610 (La.App. 4 Cir.1976)(“Under our law part of the duty imposed on those in charge |inof a business establishment, if time allows, is to call the police in the event of a disturbance in order to prevent injury to patrons.”)(Emphasis added.).

Second, Culley’s argument with regard to this issue is primarily that Oasis should have contacted the authorities for medical treatment not for police protection. Even assuming that Rodriguez, 400 So.2d 884, extends such a duty to Oasis, Culley offered no evidence that he suffered actual damages as a result of any failure on the part of Oasis to contact the authorities. See Pinsonneault, 816 So.2d 270. Although Culley asserted at the hearing on the motion for summary judgment that this was an issue for the factfinder, the moving party sustained its initial burden under La.Code Civ.P. art. 966(C)(2). Thus, Culley was required to show that he would be able to meet his evidentiary burden of proof at trial. Id. He did not do so, offering only an assertion instead. “[Sjuch speculation falls far short of the factual support required to establish that plaintiff will be able to satisfy his evidentiary burden of proof at trial.” Babin v. Winn-Dixie La., Inc., 00-78, p. 5 (La.6/30/00), 764 So.2d 37, 40.

Culley’s argument in this regard is without merit.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment granting the motion for summary judgment dismissing the plaintiffs claims against the defendant, Oasis Sports Bar & Grill, LLC. Costs of this appeal are assessed to the plaintiff, Frank Culley Firmin.

AFFIRMED.

      . Culley Firmin’s name is also spelled as "Cully” in the record. We use the spelling contained in the petition and the parties’ briefs.

      . We note that the legislature amended La. Code Civ.P. art. 966(B)(2) in 2013 La. Acts 391, effective August 1, 2013.

      . However, we note nothing in the record indicating that this case has been resolved in any of the parties’ favor.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Melissa BROUSSARD, et al. v. RETAIL INVESTORS OF TEXAS, LTD., et al.
    No. 13-414.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.

      James R. Morris, Attorney at Law, Lake Charles, LA, for plaintiff/appellant: Melissa Broussard, Jessica Broussard and Ricky B. Broussard.
    Christopher P. Ieyoub, Plauche, Smith & Nieset, L.L.C., Lake Charles, LA, for defendant/appellee: New Hampshire Insurance Company, Retail Investors of Texas, LTD d/b/a Market Basket Food Stores, Inc. and Jessica Austin.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JOHN E. CONERY, Judges.
   SAUNDERS, Judge.

| ¶ This is a trip and fall case in which a grocery store patron fell near an employee who was using a work cart to clean shelves. The patron sustained injuries from her fall, and she and her family filed suit against the grocery store. Defendants filed a motion for summary judgment alleging that the danger was open and obvious and that plaintiffs cannot support the cause-in-fact element of their claim. The trial court granted the motion. The plaintiffs appeal. For the reasons discussed herein, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Melissa Broussard (hereinafter “Broussard”), was shopping at Market Basket, defendant’s grocery store in Lake Charles, Louisiana, on July 12, 2010. She went into an area where a Market Basket employee was using a work cart to load and unload merchandise as he cleaned the store’s milk shelves. The area was marked with a warning cone. It is Market Basket’s policy to prevent patrons from entering such an area by marking it as dangerous and by having employees offer to retrieve the product for patrons. Broussard retrieved milk from the area herself, then tripped and injured her ankle. Broussard filed suit against the owner of Market Basket (hereinafter “Market Basket”) alleging that her injury resulted from Market Basket’s negligence.

Market Basket filed a motion for summary judgment on two grounds. First, Market Basket alleged that because the danger of the work cart was open and obvious, there was no issue of material fact as to the presence of an unreasonably dangerous condition. Second, Market Basket alleged that because Broussard testified during her deposition that she did not know what caused her fall, and because Broussard has presented no other evidence of causation, she cannot support the cause-in-fact element of her claim. The trial court granted the motion |2in favor of Market Basket based on the latter argument regarding cause-in-fact. Broussard filed a motion for new trial. The trial court conducted an additional hearing, then dismissed the motion. Broussard now appeals the summary judgment.

ASSIGNMENT OF ERROR

On appeal, Broussard asserts that the trial court erred in granting Market Basket’s motion for summary judgment.

LAW AND ANALYSIS

This court reviews summary judgments de novo. Thibodeaux v. Lafayette Gen. Surgical Hasp., 09-1523 (La.App. 3 Cir. 5/5/10), 38 So.3d 544. Summary judgment “is designed to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2). “The procedure is favored and shall be construed to accomplish these ends.” Id. A motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

This court has stated, and the supreme court agreed, “[pjrovided that sufficient time for discovery has been allowed, we will assess the proof submitted by the parties in order to weed out meritless litigation, and to secure the just, speedy, and inexpensive determination of every action submitted for summary judgment.” Hardy v. Bowie, 98-2821, pp. 5-6 (La.9/8/99), 744 So.2d 606, 610 (quoting Hayes v. Autin, 96-287, p. 7 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, 695, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41).

The burden of proof is on the movant. However, as here, where the movant will not bear the burden of proof at trial, the movant’s burden on the motion does |snot require it to negate all essential elements of the adverse party’s claim. The movant need only establish that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that she will be able to meet her evidentiary burden of proof at trial, no genuine issue of material fact exists. La. Code Civ.P. art. 966(C)(2).

In this case, Broussard filed suit against Market Basket, alleging that the company’s actions were negligent and that those actions resulted in her injury. Broussard bears the burden to prove this at trial. She must prove the following elements of merchant liability: (1) the condition presented an unreasonable risk of harm to the claimant and that risk was reasonably foreseeable; (2) the merchant either created or had actual or constructive notice of the condition; and, (8) the merchant failed to exercise reasonable care. La.R.S. 9:2800.6(B).

In addition, Broussard must prove the five elements of the well-established duty/risk analysis: (1) the defendant had a duty to conform his conduct to a specific standard; (2) the defendant failed to conform his conduct to the appropriate standard; (3) the defendant’s conduct was a cause-in-fact of the plaintiffs injuries; (4) the defendant’s conduct was a legal cause of the plaintiffs injuries; and, (5) actual damages. Berg v. Zummo, 00-1699 (La.4/25/01), 786 So.2d 708 (citing Roberts v. Benoit, 605 So.2d 1032 (La.1991) (on rehearing)).

Market Basket need only point out a lack of support for at least one of these elements. La.Code Civ.P. art. 966(C)(2). The burden then shifts to Broussard to show she can meet her evidentiary burden for that element. Id. If she cannot do so, summary judgment should be granted. Id.

Market Basket based its motion for summary judgment on two grounds. First, it alleged that Broussard is unable to show the work cart presented an ^unreasonable risk of harm because it was open and obvious. Second, Market Basket alleged that Broussard cannot support the cause-in-fact element of the duty/risk analysis because she testified during her deposition that she did not know what caused her fall, and she has presented no other evidence of causation. The trial court granted summary judgment based on Broussard’s inability to show evidentiary support for the cause-in-fact element. The trial court did not reach the merits of the issue of the condition being open and obvious. We will address the cause-in-fact issue first.

In support of its allegation that Broussard cannot meet the evidentiary burden for cause-in-fact, Market Basket offers the following testimony from Brous-sard’s deposition:

Q: And tell us the mechanics of that. What caused you to trip?
A: I don’t know what caused me to trip.
Q: Okay. You don’t?
A: No, I don’t.
Q: All right. Do you know if any part of your body hit any part of the cart?
A: Not that I know of.
Q: Okay. Have you spoken to anyone who said they witnessed the accident and saw what part of your body hit what part of the cart?
A: No.
Q: Okay. As you sit here today, Ms. Broussard, can you tell us under oath what you believe made you fall? I don’t want you to guess.
A: Yeah.
Q: If you know, tell us.
A: No, I don’t.
|-Q: Okay. Do you have any idea, Ms. Broussard, what happened to your ankle in order to injure it? In other words, some people say, “I rolled my ankle,” or, “I caught it this way or that way.” Do you know?
A: No, I don’t.
Q: Okay. Is this a problem you think with your memory today? Did at one time you feel like you knew what happened and today you don’t, or have you never known what happened?
A: No.

This testimony establishes that there is an absence of factual support for the cause-in-fact element of Broussard’s claim. Therefore, the burden shifts to Broussard to produce factual support sufficient to establish that at trial, she will be able to meet her evidentiary burden of proving the work cart was a cause-in-fact of her injury. La.Code Civ.P. art. 966(C)(2). If she cannot do so, the motion for summary judgment must be granted. Id.

Broussard argues that Market Basket’s above-stated policy constitutes circumstantial evidence that the work cart caused her to trip. Under the standard set forth by La.Code Civ.P. art. 966, we find this argument fails to show that Broussard can meet her evidentiary burden as to the cause-in-fact element of her claim. Market Basket’s attempt to prevent patrons from tripping over the work cart through an internal policy does not constitute evi-dentiary support that Broussard tripped over the work cart.

Broussard also offers a sworn statement from a Market Basket manager stating that just after Broussard fell, Broussard told her that she had tripped over the cart. Such a statement does not carry Broussard’s burden to show that evi-dentiary support for the cause-in-fact element of her claim exists. When moving for or against a motion for summary judgment, “[sjupporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is | (¡competent to testify to the matters stated therein.” La. Code Civ.P. art. 967. Austin was not present when Broussard fell and did not witness her fall. She came upon the scene shortly thereafter. Therefore, she does not have personal knowledge as to the cause-in-fact of Broussard’s fall, and her testimony thereon may not be considered for the purpose of summary judgment. Id.

Furthermore, after more than two years of litigation, Broussard has failed to discover and offer any evidence of the cause of her injury. Sufficient time for discovery has been allowed and an element of Broussard’s claim still cannot be met. Given Broussard’s testimony that she does not know the cause-in-fact of her injury, coupled with the lack of other evidence as to causation, summary judgment is appropriate in this case.

The trial court granted summary judgment based on the absence of evidentiary support for causation, and we affirm its judgment on the same grounds. The trial court did not reach the issue of the open and obvious nature of the condition. However, this point is also sufficient grounds on which to affirm summary judgment.

In addition to an absence of eviden-tiary support for the cause-in-fact element of Broussard’s claim, there is an absence of support for the existence of a condition presenting an unreasonable risk of harm to Broussard. Market Basket argues that the work cart was open and obvious to such a degree that it did not present an unreasonable risk under the merchant statute. Market Basket points out that the cart was large, uncovered, and accompanied by a clear warning cone.

In response, Broussard again invokes Market Basket’s policy to prevent patrons from entering such an area, arguing that the policy indicates that such an area presents an unreasonably dangerous risk. We find this argument without merit. Market Basket’s internal policy does not determine whether a reasonable |7person would perceive a condition. We find that the work cart was so open and obvious that there exists no genuine issue of material fact as to whether it presented an unreasonable risk of harm.

CONCLUSION

Melissa Broussard’s assignment of error alleges that the trial court erred in granting Market Basket’s motion for summary judgment. Because the standard of review for a motion for summary judgment is a de novo review of the record, we limit our discussion to whether the trial court properly granted the motion.

In conclusion, we find the evidence indicates that Melissa Broussard cannot establish that the work cart, or any action on the part of Market Basket, is a cause-in-fact of her injury. As such, she would be unable to carry her evidentiary burden at trial. Moreover, we find the evidence indicates that even were she able to support the cause-in-fact element of her claim, the condition was open and obvious to such a degree that she would be unable to show it presented an unreasonable risk of harm to her. On this point as well, she would be unable to carry her evidentiary burden at trial. Melissa Broussard has failed to raise a genuine issue of material fact as to the issue of cause-in-fact and as to the issue of unreasonable risk. Therefore, we affirm the trial court’s ruling granting summary judgment. All costs of this appeal are assessed to Plaintiff, Melissa Broussard.

AFFIRMED.


text:
    STATE of Mississippi, Petitioner v. Robert Shuler SMITH, et al., Respondents.
    Nos. 2013-IA-01220-SCT, 2013-TS-01241-SCT.
    Supreme Court of Mississippi.
    Aug. 29, 2013.
   ORDER

RANDY GRANT PIERCE, Justice for the Court:

This matter is before the Court en banc on the State of Mississippi’s Combined Petition for Interlocutory Appeal and Motion to Vacate Permanent Injunction. Also before the Court is the Response in Opposition filed by Robert Shuler Smith, et al. In addition, various amicus briefs have been filed and are before the Court.

After due consideration, the Court finds that the Petition for Interlocutory Appeal is well taken and should be granted. The Court also finds that further record preparation and briefing is not needed, and the merits of the petition may be decided at this time. The Court further finds that Cause No. 2013-TS-01241-SCT, which is a direct appeal from the same trial court order, will be decided at this time, without further record preparation or briefing.

On July 12, 2013, a Circuit Judge of the Circuit Court of the First Judicial District of Hinds County, Mississippi, entered an Order Granting Plaintiffs’ Motion for In-junctive Relief. The Circuit Judge found House Bill 2 to be unconstitutionally vague and ordered that House Bill 2 shall not take effect until such time as the Mississippi Legislature reviews, amends, or clarifies the Bill.

This Court has recognized that “a governmental enactment is impermissibly vague where it fails to provide persons of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits.” Mayor & Bd. of Aldermen, City of Clinton v. Welch, 888 So.2d 416, 421 (Miss.2004). We have held that “statutes must clearly warn what conduct is prohibited when evaluated by common understanding and practice, and that a rule is not objectionable merely because it is stated in general terms.” State ex rel. Hood v. Louisville Tire Center, Inc., 55 So.3d 1068, 1072 (Miss.2011).

This Court now finds that the Circuit Judge erred as a matter of law when he found House Bill 2 to be vague and, therefore, unconstitutional. He also erred when he stated that “a reasonable person reading the bill could not discern what the law allows and what it prohibits.” Therefore, the Petition for Interlocutory Appeal is granted and rendered, and the Order Granting Plaintiffs’ Motion for Injunctive Relief is vacated.

IT IS THEREFORE ORDERED that the State of Mississippi’s Combined Petition for Interlocutory Appeal and Motion to Vacate Permanent Injunction is hereby granted.

IT IS FURTHER ORDERED that the Order Granting Plaintiffs’ Motion for In-junctive Relief, entered on July 12, 2013, in Cause No. 251-13-595CIV, in the Circuit Court of the First Judicial District of Hinds County, Mississippi, is hereby vacated.

IT IS FURTHER ORDERED that the appeal in Cause No. 2013-TS-01241-SCT is hereby dismissed. Costs of the appeal are assessed to the Appellees.

SO ORDERED.

TO GRANT AND RENDER: ALL JUSTICES.


author: JOSIAH DENNIS COLEMAN, Justice. CHANDLER, Justice,

text:
    Ronald PAYNE and Thomas Payne, Individually and on Behalf of the Wrongful Death Beneficiaries of Marie Payne, Deceased, Appellant v. Cleveland GOWDY, Individually and as an Employee of Schneider National Carriers, Inc., and Schneider National Carriers, Inc., Appellee.
    No. 2010-CT-01929-SCT.
    Supreme Court of Mississippi.
    Sept. 9, 2013.
   ORDER

JOSIAH DENNIS COLEMAN, Justice.

The instant matter is before the Court sitting en banc on the Petition for Writ of Certiorari filed by counsel for Ronald Payne. The petition was granted by order of the Court entered on March 21, 2013. Upon further consideration, the Court finds that there is no need for further review and that the writ of certiorari should be dismissed.

IT IS THEREFORE ORDERED that the writ of certiorari is hereby dismissed on the Court’s own motion.

SO ORDERED.

TO DISMISS: DICKINSON AND RANDOPLH, P.JJ., LAMAR, PIERCE AND COLEMAN, JJ.

CHANDLER, J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY WALLER, C.J., KITCHENS AND KING, JJ.

CHANDLER, Justice,

objecting to the order with separate written statement:

¶ 1. I do not join the Court’s order dismissing the certiorari petition. This case involved the tragic death of seventy-eight-year-old Marie Payne (Mrs. Payne), who was run over by Cleveland Gowdy as he backed his pickup truck through a parking garage on September 5, 2008. There were no eyewitnesses to the accident other than Gowdy and his wife. Gowdy denied that he saw Mrs. Payne prior to the accident and, throughout the trial, the defense suggested that the reason Gowdy had not seen Mrs. Payne was that she had fallen just prior to being struck by Gowdy’s truck. Mrs. Payne had fallen on prior occasions, but the trial court excluded the evidence of her prior falls as irrelevant and more prejudicial than probative. But later, the trial court allowed evidence of a May 2008 fall in the guise of impeachment evidence. The jury found that Gowdy was not negligent. As explained below, the trial court’s ruling erroneously permitted Gowdy to impeach Mrs. Payne’s sons, (the Paynes) on a collateral matter, resulting in substantial prejudice. I would reverse and remand for a new trial.

¶ 2. Relying upon the principle that a picture is worth a thousand words, I attach to my objection an exhibit that shows Mrs. Payne’s final resting place under Gowdy’s truck. The exhibit shows how far Gowdy traveled as he backed through the parking garage in the wrong direction. Mrs. Payne was five feet tall, approximately nine to ten inches taller than the tailgate of Gowdy’s truck. Tim Corbitt, an accident reconstructionist, testified that Mrs. Payne would have been visible to Gowdy at all times as he backed up. No expert testimony or other evidence substantiated the defense’s speculation that Mrs. Payne fell prior to being hit by Gowdy. Because no evidence substantiated the fall theory, the trial court excluded evidence that Mrs. Payne had fallen on prior occasions as irrelevant and more prejudicial than probative.

¶ 3. But later, the trial court permitted evidence that Mrs. Payne had fallen in May 2008 to impeach the testimony of Thomas Payne. Thomas testified that Mrs. Payne had no physical restrictions. Thomas testified that Mrs. Payne saw doctors, but she was an independent person and never discussed her medical conditions with him. On cross-examination, Gowdy asked whether Mrs. Payne had ever had any issues with her shoulder. Thomas replied, “Not that I’m aware of.” His brother Ronnie testified that he had seen his mother daily. Gowdy did not ask Ronnie if he was aware of Mrs. Payne’s shoulder injury. Neither brother was asked about Mrs. Payne’s prior falls.

¶ 4. During the defense ease, the deposition testimony of Mrs. Payne’s treating physician, Dr. Rhonda Wilson, was read to the jury. The Paynes sought to redact from Dr. Wilson’s testimony all mention of prior falls. Gowdy argued that he should be allowed to read Dr. Wilson’s response concerning Mrs. Payne’s May 2008 fall because, in the response, Dr. Wilson mentioned that Mrs. Payne had sustained a fracture to her right shoulder in the fall. Gowdy argued that Dr. Wilson’s testimony that Mrs. Payne had a shoulder injury impeached the Paynes’ testimony that Mrs. Payne had no physical restrictions. The trial court permitted the impeachment despite its prior ruling that the evidence of prior falls was irrelevant and unduly prejudicial, stating, “The way I recall, I said that if there is affirmative information that’s presented that you feel like is inconsistent with the truth, you can impeach on that issue. And he asked Mr. Payne about that; he denied that. Evidently, that’s the truth.” The trial court attempted to limit Dr. Wilson’s testimony so that it would not incorporate evidence of prior falls. Nonetheless, the following testimony of Dr. Wilson was read to the jury:

Q. Okay. Well, do you know whether in May of 2008 Ms. Payne had complained of having fallen?
A. There was — in May of 2008, the note indicates that she said she had fallen at that point since I saw her last and had sustained a fracture to her right shoulder. But — so she said she was progressing okay from that standpoint.

The Paynes responded with the following testimony from Dr. Wilson:

Q. As far as if someone tries to suggest that Dr. Wilson’s record mentioned a fall and because of that Marie Payne fell before she was struck by this truck, you are not saying that here today, are you?
A. I’m not saying that, and I don’t know that anybody would know — could possibly know that.

¶ 5. This Court reviews the trial court’s ruling admitting or excluding evidence for abuse of discretion. Richardson v. State, 74 So.3d 317, 329 (Miss.2011). We will reverse only if there was an abuse of discretion that affected a substantial right of a party. Id.; M.R.E. 4 103(a). “Impeachment is the process of discrediting a witness.” Johnson v. State, 655 So.2d 37, 41 (Miss.1995). A witness may be impeached by showing bias or prejudice, or by attacking the witness’s recollection of events. Id. But “[i]t is a well established rule that it is error to allow a witness to be contradicted on an immaterial (or collateral) matter.” Id. (quoting Price v. Simpson, 205 So.2d 642, 643 (Miss.1968)). A party has no right to establish a contradiction regarding a collateral matter. Johnson, 655 So.2d at 41. A matter is considered to be collateral if the cross-examining party would not be able to prove the matter in his or hers case-in-chief. Id. “[A] matter is collateral if it is not ‘one embodying a fact substantive in its nature and relevant to the issue made in the case.’ ” Croft v. State, 992 So.2d 1151, 1156 (Miss.2008) (quoting Lee v. State, 944 So.2d 35, 43 (Miss.2006)).

¶ 6. I examine the testimony of Dr. Wilson to determine whether its use constituted impeachment on a collateral matter. Because Thomas testified that Mrs. Payne did not share her medical information with him, the evidence of the shoulder injury was of trivial impeachment value — the jury already knew that Thomas was not completely familiar with his mother’s medical history. Gowdy elected not to question Thomas about Dr. Wilson’s note on the shoulder injury during cross-examination. Instead, Gowdy sought admission of the question and answer that acknowledged Mrs. Payne’s May 2008 fall. However, the trial court had excluded all evidence of the prior falls, finding that this evidence was irrelevant and more prejudicial than probative. Therefore, evidence of the prior falls was inadmissible at the trial. Plainly, Gowdy’s request for admission of extrinsic evidence of the fall and resultant shoulder injury was an attempt to place inadmissible evidence before the jury. Gowdy would not have been able to admit the evidence of the prior fall in his case-in-chief. Under the trial court’s exclusionary ruling, the evidence of the prior fall was irrelevant and collateral; it did not “embody[ ] a fact substantive in its nature and relevant to the issue made in the case.” Croft, 992 So.2d at 1156 (quoting Lee, 944 So.2d at 43). The trial court erred by allowing Gowdy to impeach the Paynes on a collateral issue.

¶ 7. It is beyond question that the erroneous impeachment substantially prejudiced the Paynes. Gowdy had questioned witnesses about the possibility that Gowdy had not seen Mrs. Payne because she had fallen prior to being run over. Gowdy argued in closing that he had shown “very reasonable circumstances where Mr. Gow-dy could not have seen her as she crossed his path or had fallen behind his truck.” Gowdy also reminded the jury that Mrs. Payne had fallen in May 2008. At the hearing on the Paynes’ motion for judgment notwithstanding the verdict or a new trial, Gowdy argued that “circumstantial evidence could have led the jury to conclude what happened was unavoidable and that she may have fallen.” In discussing the ruling allowing Dr. Wilson’s testimony about the May 2008 fall, the trial court stated “I allowed evidence that was clearly prejudicial.” Certainly, the erroneous admission of the unrelated May 2008 fall substantially prejudiced the Paynes by supporting Gowdy’s speculative argument that Mrs. Payne had fallen on the day of the accident. I would reverse and remand for a new trial.

WALLER, C.J., KITCHENS AND KING, JJ, JOIN THIS SEPARATE WRITTEN STATEMENT.


text:
    Charles Sylvester BELL a/k/a Charles S. Bell v. STATE of Mississippi.
    No. 2011-CT-00645-SCT.
    Supreme Court of Mississippi.
    Sept. 10, 2013.
    See also 95 So.3d 760 and 751 So.2d 1035.
   EN BANC ORDER

This matter comes before the en banc court after granting Charles Sylvester Bell’s petition for certiorari. In 2010, Bell filed his petition for post-conviction relief in the Circuit Court of Forrest County, claiming that his armed robbery conviction violates the Double Jeopardy Clauses of the United States and Mississippi Constitutions because the same armed robbery served as the predicate felony in his capital murder conviction. He also argued that his sentence as a habitual offender violated the constitutional prohibition of ex post facto application of the law.

In 2011, the circuit court dismissed Bell’s petition as time-barred. Bell appealed, and the Mississippi Court of Appeals held that the circuit court erred by dismissing Bell’s petition because this Court’s holding in Rowland v. State excepts his claims from the procedural bars of the UPCCRA. But the Court of Appeals affirmed the dismissal of Bell’s petition because it found that a previous decision of this Court held that Bell waived his double-jeopardy and ex post facto claims by pleading guilty. We granted certiora-ri.

We find that Rowland indeed excepts Bell’s claims from the procedural bars of the UPCCRA. But we also find that both this Court and the trial court have considered the merits of Bell’s ex post facto claim and have held that he waived that claim. Accordingly, Bell’s ex post facto claim is res judicata.

The Court of Appeals erred in finding that Bell’s guilty plea alone was sufficient to constitute a waiver of double jeopardy. We also find that the trial court has never conducted a hearing on whether Bell made a knowing and intelligent waiver of double jeopardy.

It is therefore ORDERED: that the judgment of the Court of Appeals is affirmed in part and reversed in part, the judgment of the Circuit Court of Forrest County is affirmed in part and reversed in part and this case is remanded to the Circuit Court of Forrest County for an evidentiary hearing on whether Bell made a knowing and intelligent waiver of double-jeopardy. If the trial court finds that Bell did make a knowing and intelligent waiver of double jeopardy, it shall make a legal determination of whether such waivers are constitutionally permissible, and rule on Bell’s petition. On remand, the trial court should consider appointing counsel to represent Bell with respect to these issues. Forrest County shall pay all costs associated with this appeal.

SO ORDERED.

/s/ Jess H. Dickinson

JESS H. DICKINSON, PRESIDING JUSTICE

ALL JUSTICES AGREE.

      . Bell v. State, 95 So.3d 760, 764 (Miss.Ct. App.2012) (citing Rowland v. State, 42 So.3d 503, 508 (Miss.2010)).

      . Id. (citing Bell v. State, 751 So.2d 1035, 1037 (Miss.1999)).

      . Rowland, 42 So.3d at 508.

      . Bell, 751 So.2d at 1038.

      . Willie v. State, 738 So.2d 217, 219 (Miss.1999).


author: BARNES, J.,

text:
    Charles Dennis HARRIS a/k/a Charles Harris, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00753-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2013.

      Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. In March 2011, a Rankin County grand jury returned a five-count indictment against Charles Harris for felonious child abuse of a nine-month old, Sue Brown, under Mississippi Code Annotated section 97-5-39 (Rev.2006). The counts included breaking her left arm (Count I), breaking her right arm (Count II), burning her fingers (Count III), burning her lips and mouth (Count IV), and striking her chest causing “bilateral pneumothoraces” (Count V). A jury convicted Harris on Count III, but was unable to reach a verdict regarding the other counts, resulting in a mistrial for those counts. The trial court sentenced him to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with eight years suspended and five years of supervised probation. Harris now appeals, raising three issues. He argues a mistrial should have been declared when the prosecution played a video recording to the jury. The video contained Harris’s alleged exercise of his post-Miranda right to an attorney during a custodial interview. He also claims the trial court erred in refusing a lesser-offense jury instruction on simple assault and a lesser-included-offense jury instruction on misdemeanor child abuse. Finally, he argues the verdict is against the weight of the evidence. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In March 2009, Sue, Carrie Cran-dle’s nine-month-old daughter, suffered injuries after a series of “accidents” while under the care of her nineteen-year-old babysitter, Harris. Crandle and the baby’s father, George Brown, had been living together in Jackson, Mississippi, when Sue was born, but three weeks after her birth, George relapsed into drug addiction. Crandle left Jackson and took Sue and her four-year-old half-brother to Leakesville, Mississippi, where some relatives live. She stayed with her best friend and received food stamps. After six weeks, Brown found a place for Crandle and the children to live in Florence, Mississippi, where they moved in August 2008. Through the WIN Job Center, Crandle obtained a job at a hotel in Brandon, Mississippi, as a front desk clerk, where she worked the night shift most of the time.

¶ 3. When issues arose with the childcare arrangements Crandle had initially made with friends and family, she began looking at babysitting services. She searched websites and interviewed a couple of individuals. Harris, whom Crandle had met at a church in Pearl, Mississippi, had offered to watch her children, but she initially declined his offer. Crandle had known him for three or four months. Having difficulty finding a babysitter, though, Crandle decided to contact Harris. Harris lived in a house with his grandparents, sister, uncle, uncle’s girlfriend, and uncle’s three children. Crandle set up a meeting to inspect the house and meet Harris’s family. After the meeting, Cran-dle felt it would be “okay” to have her children cared for by Harris at his home. At first, Crandle sent only her son, but after Harris did “fine” with him, she also started leaving Sue. At the time, Sue was neither walking nor crawling.

¶ 4. On March 6, 2009, Crandle received a text message from Harris, stating he thought Sue’s arm might be broken. Harris then called Crandle and explained Sue had been “fussy.” When he was changing her diaper, she rolled off the bed and landed on a walking cane on the floor. Harris stated he then picked Sue up and put her in his bed, where she cried a bit and then went to sleep.

¶ 5. Crandle called Harris’s grandmother to see “what was going on.” After speaking with the grandmother, Crandle decided to leave work early and take Sue to River Oaks Hospital in Flowood, Mississippi. In the emergency room, Sue’s left and right arms were x-rayed. Physicians confirmed Sue’s left arm was broken. While at the hospital, Crandle also met with a social worker due to the nature of Sue’s injury and her age. At this point, Crandle did not suspect Harris of abuse.

¶ 6. On March 22, 2009, Crandle left work at 11:00 p.m. to pick up her children from Harris’s house. She found Sue sitting on Harris’s bed and noticed a bandage on Sue’s right middle finger. Harris explained to Crandle that Sue had a blister on her finger and had chewed it off. Crandle also noticed Sue’s mouth had a red, blistery rash on it, and there were blisters on three fingers of her other hand. Harris claimed ignorance about what happened to Sue’s fingers.

¶ 7. Crandle immediately took Sue to the Crossgates River Oaks Hospital emergency room in Brandon. Sue’s fingers were treated, and it was recommended Crandle follow up with Sue’s pediatrician, Dr. Phyllis Hightower. The next day, Dr. Bettie Knight saw Sue because Dr. Hightower was out. She informed Crandle that Sue had second-degree burns on her fingers caused from heat.

¶ 8. On March 24, 2009, Crandle took Sue to the Mississippi Sports Medicine Center for a follow up visit for Sue’s broken arm. Crandle then took Sue back to Dr. Hightower’s office to change the bandages on Sue’s fingers. But when Dr. Hightower took Sue from Crandle’s arms to examine her, Sue emitted “a high-pitched cry ... in obvious discomfort” as the physician held Sue around her trunk. Concerned about possible rib fractures, Dr. Hightower ordered a full skeletal survey of Sue at Rankin General Hospital’s emergency room. Crandle proceeded to the hospital with Sue where the x-ray was performed. Physicians discovered Sue had additional injuries — her right arm was also broken, and there were issues with her lungs. Sue was taken by ambulance to the University of Mississippi Medical Center (UMMC), where she had to have emergency surgery due to her lung injuries. Sue was in the pediatric intensive care unit (PICU) for four days and in the hospital for six days.

¶ 9. On March 26, 2009, Officer Sheila Tucker, a juvenile investigator in the Rankin County Sheriffs Office, interviewed Harris. A video recording of the interview was taken. Initially, Harris denied knowing what happened to Sue, and suggested that maybe Sue’s father injured her, even though Sue had not been around her father lately. Then, he proposed that the injuries occurred when he was asleep, or his cousins might have burned Sue’s fingers. Later, he suggested a lamp might have caused the burns. Toward the end of the interview, he admitted that the burned fingers and one broken arm occurred during his care. But, he maintained that he did not know how Sue’s lungs became collapsed. After being advised of his Miranda rights, Harris signed a waiver and, at the end of the interview, gave a written statement.

¶ 10. In his written statement, Harris explained that when Sue “first broke her right arm,” he had set her on his bed against the wall with pillows and gone into the kitchen for five minutes to eat a piece of cake. The statement continues that on March 21, 2009, Sue was on his bed and dropped her pacifier on the floor. When she reached for it, she nearly fell off his bed. Harris grabbed her right arm and heard a “pop.” Sue started to cry; so, he gave her a bottle, and she threw up on his bed. Regarding Sue’s burned fingers, Harris stated that while he was giving her a bath, Sue reached for a burning tea candle and got wax on her finger tips. He immediately rinsed her fingers off in cold water. His grandmother came to see where Sue “puked” on his bed, and held her while he flipped the mattress. Harris soon went to sleep and claims he did not know how Sue’s lungs became collapsed, unless he rolled onto her while asleep. He admits that while he told Crandle about Sue’s throwing up, he “withheld the part about Sue almost falling off [his] bed and her burned fingers.”

¶ 11. In February 2011, during a pretrial hearing, Harris moved to suppress the written statement, which was prepared at the end of his interview, because he invoked his right to counsel. After watching the videotape of the interview, the trial judge ruled that Harris did not actually assert his right to counsel; thus, Harris’s written statement could be admitted into evidence.

¶ 12. In February 2012, Harris’s trial began. Testifying for the State were Crandle, Officer Tucker, and five physicians who treated Sue’s various injuries in March 2009, including her pediatrician, Dr. Hightower.

¶ 13. During Officer Tucker’s examination, she explained that Harris admitted the only other person in the house having contact with Sue was his grandmother, who did so occasionally. Importantly, Harris also admitted to Officer Tucker that Sue was injured only during his care.

¶ 14. While Officer Tucker was on the witness stand, defense counsel objected to the admission of the video recording of Harris’s interview with Officer Tucker. The trial judge overruled the objection, and the video was played to the jury. The defense counsel then moved for a mistrial. He again argued, as he did at the hearing in February 2011, that Harris invoked his right to an attorney, and that portion of the video “should have been redacted.” The trial judge denied the motion for a mistrial.

¶ 15. Dr. Barry McCay testified for the State. He was accepted by the court as an expert in digital radiology. He also interpreted the x-rays of Sue’s arms taken on March 7, 2009, at River Oaks Hospital. At the time, he found the left arm had a buckle fracture, and the right arm had a possible fracture. The injuries were recent. He stated it was unlikely Sue broke her arm falling off Harris’s bed onto a cane, and it was “impossible” for her to break both arms in such a manner. It was his opinion that having both upper arm bones broken is “highly suspicious of child abuse.”

¶ 16. Dr. Lawrence Dautenhahn was also accepted by the court as an expert in the field of pediatric radiology. He had reviewed Sue’s x-rays taken on March 24, 2009, at Crossgates River Oaks Hospital. The x-rays showed that both arms were fractured, both lungs were partially collapsed, and air was present in the soft tissues of her chest wall up to her neck. Dr. Dautenhahn stated a nine-month-old infant would not break both arms falling off a bed onto a carpeted floor and hitting a cane. He stated a child’s bones are pliable and difficult to break. He also found Sue’s injuries not accidental but consistent with child abuse.

¶ 17. Dr. Neva Ekland, a pediatric dentist at UMMC, testified about the ulcera-tive lesions found inside Sue’s mouth and upper lip. She claimed all of these injuries occurred at the same time. It was her opinion, to a reasonable degree of medical certainty, that the lesions were “consistent with the forced feeding of hot liquid or hot feeding implements,” such as a bottle, forcibly held in Sue’s mouth.

¶ 18. Dr. Scott Benton, a professor of pediatrics and chief of the forensic medicine department at UMMC, as well as the medical director of the Children’s Justice Center, was accepted as an expert in the field of pediatric forensic medicine. Dr. Benton had been consulted by the pediatric trauma surgeon at UMMC about the possibly abusive nature of Sue’s injuries while she was in the PICU. Dr. Benton explained Sue’s most pressing injuries were pneumothorax in both areas of her chest; pneumopericardium around her heart; pneumomediastinum around her back and chest; air around her kidneys; and “pulmonary contusions,” or bruises inside her lungs due to trauma. In his opinion, “what caused great concern” was that Sue’s second-degree burns were not caused by “a child exploring [her] environment” by reaching out to touch an object such as a hot lamp, a burning candle, or hot wax, because the burns were not on her dominant fingers. He considered this fact a “red flag” for abuse. He testified that burns “on both sides of the body,” such as her finger burns, were also a “red flag.” It was his opinion the burns came from an object that could get hot enough to touch and burn solidly the tips of the fingers. Dr. Benton concluded that Sue’s injuries were not accidental, and it was his opinion she was an abused child.

¶ 19. Harris chose not to testify at trial, and the defense did not put on any other witnesses. While jury instructions for each count were given on felonious child abuse, the trial court refused the defense’s request for jury instructions on the lesser offense of simple assault and the lesser-included offense of misdemeanor child abuse.

¶20. The jury found Harris guilty of felonious child abuse for Count III of the indictment (for burning Sue’s fingers), but the jury was unable to reach a verdict with respect to Counts I, II, IV, and V. Therefore, the trial judge declared a mistrial on those counts. The jury was also unable to affix a life sentence to Harris’s conviction for Count III. Thus, following a sentencing hearing, the trial judge sentenced Harris to thirty years in the custody of the MDOC, with eight years suspended and five years of supervised probation. Harris filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which was denied.

ANALYSIS

I. Motion for Mistrial

¶ 21. Harris argues that it was an “incurable” error for the jury to have heard his alleged request for an attorney during the video recording of his custodial interview. Thus, he claims his motion for a mistrial should have been granted. Relat-edly, he argues his privilege against self-incrimination and his right to counsel were violated.

¶ 22. During the February 2011 hearing, the trial judge ruled that Harris did not invoke his right to counsel at the end of the interview. One year later, at trial, the trial court overruled defense counsel’s objection to the admission of the video recording. After the video recording was played for the jury, the defense moved for a mistrial, claiming Harris’s alleged request for an attorney should have been redacted. The trial judge denied the motion, but admitted it would have been better had that portion of the video been redacted.

¶ 23. “Whether to grant a motion for mistrial is within the sound discretion of the trial court. The standard of review for denial of a motion for mistrial is abuse of discretion.” Gunn v. State, 56 So.3d 568, 571 (¶ 14) (Miss.2011) (quoting Caston v. State, 823 So.2d 473, 492 (¶ 54) (Miss.2002)). Under Miranda, the accused must be informed of the right to remain silent and the right to an attorney before any custodial interrogation occurs. Barnes v. State, 30 So.3d 313, 316 (¶ 8) (Miss.2010) (citing Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). “Once a defendant asks for counsel, he cannot be interrogated further until counsel has been made available, ‘unless the accused himself initiates further communication, exchanges, or conversations with the police.’ ” Id. at 316-17 (¶8) (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). In determining whether a defendant’s right to counsel has been violated, there are two considerations. Chamberlin v. State, 989 So.2d 320, 332 (¶ 36) (Miss.2008) (citing Holland v. State, 587 So.2d 848, 856 (Miss.1991)). First, the defendant must have actually invoked his right to counsel. Id. Second, if he did, he must not be subject to further interrogation until counsel is made available to him, unless he initiates communication with law enforcement himself. Id. (citing Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880). An invocation of counsel must be unambiguous; “an ambiguous mention of possibly speaking with one’s attorney is insufficient to trigger the right to counsel.” Delashmit v. State, 991 So.2d 1215, 1220 (¶ 14) (Miss.2008) (quoting Grayson v. State, 806 So.2d 241, 247 (¶11) (Miss.2001)). “A suspect must articulate his ... desire to have counsel present with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Id. (quoting Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)).

¶ 24. It is undisputed that Harris was properly given his Miranda warnings. The March 26, 2009 interview at the police department began at approximately 3:00 p.m. On the video, Officer Tucker read Harris his rights, and gave him a copy of a waiver-of-rights form, which contained the standard Miranda warnings. Harris signed the waiver-of-rights form at 3:06 p.m., noting that he was “willing to answer questions without a lawyer present.” Officer Tucker testified that Harris understood his waiver of rights. Harris willingly spoke with Officer Tucker for approximately forty-five minutes, with Officer Tucker stepping out of the room twice. At the end of the interview, Officer Tucker instructed Harris to write down everything he could remember about how Sue came to be injured in a statement. As she was leaving the room, Harris asked, “Can I ask a lawyer for legal advice?” Officer Tucker responded, “Yes, you can get a lawyer any time you want to.” Harris responded “ok,” then looked down and began writing his statement. Officer Tucker left the room, and the interview concluded. Officer Tucker returned to the room at 4:49 p.m. to retrieve Harris’s completed statement.

¶25. We agree with the trial court that Harris did not actually invoke his right to counsel. The only time Harris mentioned a lawyer was at the end of the interview. Further, his question was posed as more of a request for reassurance that he could get a lawyer at some point. Also, after Harris asked the question, he continued communicating with law enforcement by writing his statement. Officer Tucker did not coerce Harris to write the statement. It is doubtful that a reasonable police officer would understand Harris’s question alone to be an unequivocal assertion of the right to counsel. And even if Harris’s comment about an attorney was an invocation of his right to counsel, all questioning had ceased by that time, as the interview had concluded. We find no violation of Harris’s right to counsel or his privilege against self-incrimination.

¶ 26. Additionally, Harris argues that he was “incurably” prejudiced by the jury’s hearing his request for an attorney; yet, we cannot see how. The statement was not an implication of guilt. Throughout the interview, Harris denied either injuring Sue, or injuring her intentionally. Further, his written statement was entirely exculpatory in nature. The jury could have chosen to believe Harris’s explanations for Sue’s burned fingers, but did not. Accordingly, the trial court did not abuse its discretion in denying Harris’s motion for a mistrial.

II. Jury Instructions

¶ 27. Harris next argues that the trial court erred in refusing two jury instructions: the lesser-included offense of misdemeanor child abuse (D-12), and the lesser-nonincluded offense of simple assault (D-17). The jury was instructed that it could find Harris guilty or not guilty of the crime of felonious child abuse for each count. The elements of felony child abuse found in the given jury instruction (S — 3) included whether Harris: (1) “willfully, unlawfully, and intentionally”; (2) “whipped, struck or otherwise abused or mutilated [Sue]”; (3) “in such a manner as to cause serious bodily harm to [Sue] by burning her fingers.” See Miss.Code Ann. § 97-5-39(2).

¶28. When a party claims that he is entitled to a lesser-included-offense jury instruction, the standard of review is de novo, as it is a question of law. Downs v. State, 962 So.2d 1255, 1258 (¶ 10) (Miss.2007). Both lesser-included-offense instructions or lesser-nonincluded-offense (also known as “lesser-offense”) instructions should only be granted if there is an evidentiary basis in the record. Delashmit, 991 So.2d at 1221 (¶ 18) (citing Griffin v. State, 533 So.2d 444, 447 (Miss.1988)). The Mississippi Supreme Court has stated for both lesser-included offenses and lesser-nonincluded offenses:

An instruction should be granted unless the trial judge — and ultimately [the appellate court] — can say, taking all the evidence in the light most favorable to the accused and considering all reasonable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser included offense (and conversely not guilty of at least one essential element of the principal charge).

Williams v. State, 53 So.3d 734, 741 (¶ 34) (Miss.2010) (quoting Mease v. State, 539 So.2d 1324, 1330 (Miss.1989)). Another factor to consider is “the disparity in maximum punishments.” Id. at (¶ 33) (citing Boyd v. State, 557 So.2d 1178, 1181 (Miss.1989)). However, even if a disparity exists, the trial judge still cannot give instructions on “pure speculation”; there must be “some evidence regarding the lesser included [or lesser-nonincluded] offense.” Id.

¶ 29. Here, the trial judge denied both of these instructions based on Payton v. State, 642 So.2d 1328 (Miss.1994). In Pay-ton, the jury found the defendant guilty of felony child abuse. Id. at 1329. The evidence showed the defendant-mother had been intentionally feeding her baby crushed glass, causing scratches to the baby’s palate and bleeding in the baby’s gastrointestinal tract. Id. at 1330-31. The Mississippi Supreme Court found the trial court properly refused jury instructions on misdemeanor child neglect, or child abuse, and simple assault. Id. at 1335-36. We find Payton analogous, and that the trial court did not err in refusing these two instructions.

A. Jury Instruction D-12: Misdemeanor Child Abuse

¶ 30. Harris argues it was error for the trial court to refuse the lesser-included-offense jury instruction D-12 on misdemeanor child abuse. The jury instruction stated that if the jury found beyond a reasonable doubt that Harris “did wilfully ... cause non-accidental physical injury” to Sue, he should be found guilty of misdemeanor child abuse. See Miss.Code Ann. § 97-5-39(1); see also Miss.Code Ann. § 43-21-105(m) (Rev.2009).

¶ 31. Harris claims there was evidence presented for misdemeanor child abuse, because it was unknown exactly what object actually caused the burns on Sue’s fingers. We do not find this argument persuasive. As Payton discusses, the only difference between misdemeanor and felonious child abuse is the degree of the injury — whether there was “serious bodily harm” or not. See Payton, 642 So.2d at 1335. The medical evidence shows that the burns to Sue’s fingers were “second-degree” burns — which cannot be classified as anything other than “serious bodily harm” regardless of their cause. Accordingly, no reasonable jury could find Harris guilty of merely misdemeanor child abuse. There was no evidentiary basis for this instruction, and a lesser-included instruction cannot be granted based on speculation. The trial judge did not err in refusing the jury instruction on misdemeanor child abuse.

B. Jury Instruction D-17: Simple Assault

¶ 32. Harris claims the lesser-offense jury instruction for simple assault should have been given. The instruction read that if the jury found beyond reasonable doubt that Harris “purposefully, knowingly, or recklessly” caused “bodily injury” to Sue, he should be found guilty of simple assault. See Miss.Code Ann. § 97-3-7(l)(a) (Supp.2012).

¶ 33. Harris argues there is an evidentiary basis arising out of the same operative facts pled in the indictment for an instruction of simple assault, and there is no evidence Harris intentionally burned Sue’s fingers. We disagree. Some of the strongest evidence against Harris presented at trial was the fact that Sue’s burns were on her nondominant fingers, as testified to by Dr. Benton. Therefore, the burns were not caused by a child exploring her environment. It was Dr. Benton’s unequivocal opinion the burns were nonacci-dental. Further, the burns came from a hot, solid object. Again, under these facts, no reasonable juror could find Sue’s second-degree burns on nondominant fingers were not considered “serious bodily harm.” The trial judge properly refused the jury instruction on simple assault.

III. Weight of the Evidence

¶ 34. “A motion for [a] new trial challenges the weight of the evidence. A reversal is warranted only if the lower court abused its discretion in denying a motion for [a] new trial.” Dilworth v. State, 909 So.2d 731, 737 (¶ 20) (Miss.2005) (quoting Howell v. State, 860 So.2d 704, 764 (¶ 212) (Miss.2003)). This Court “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 836, 844 (¶ 18) (Miss.2005). The evidence will be considered in the light most favorable to the verdict. Id. As stated earlier, the elements of felonious child abuse are whether the defendant “(1) intentionally (2) abuse[d] a child (3) in such a manner as to cause serious bodily harm.” Payton, 642 So.2d at 1335; Miss.Code Ann. § 97-5-39(2).

¶ 35. Harris argues that the jury was not presented with any evidence of a motive to injure Sue, or of the element of intent. We disagree. First, proof of motive was not required as it is not an element of felonious child abuse. However, the jury could have thought Harris burned Sue because he was angry with Sue for “puking” in his bed. In his statement, Harris says Sue was burned while he was giving her a bath right after she became sick. Second, evidence that Harris intentionally burned Sue was presented to the jury. Expert witness Dr. Benton, who treated Sue at UMMC, found Sue’s burns consistent with child abuse because the burns were on both hands and the burns were not on her dominant fingers. He testified that infants Sue’s age explore and grab objects with their thumb and index fingers, yet Sue did not have burns on these fingertips. He also opined the burns were from a solid hot surface. At trial, Harris did not refute this evidence.

¶36. Harris’s explanations for Sue’s burned fingers were numerous, contradictory, and inconsistent with the medical testimony. Initially, he told Crandle that Sue had chewed a blister off of one finger, but he could not give a good explanation of what happened, and feigned ignorance. Later, Harris’s various other explanations for the burns were a lamp, chemicals, and a tea candle. And even though Crandle did admit to having three space heaters in her own home, she testified Sue was not injured prior to going to Harris’s house, and there is no evidence to contradict her testimony. Also, the jury was presented with evidence that Sue, at nine months of age, could neither walk nor crawl.

¶ 37. Considering the evidence in the light most favorable to the verdict, the jury was presented with substantial evidence to support Harris’s conviction for felonious child abuse. Therefore, the trial court did not abuse its discretion in denying Harris’s motion for a new trial.

¶ 38. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF FELONIOUS CHILD ABUSE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHT YEARS SUSPENDED AND FIVE YEARS OF SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

      . Due to the sensitive nature of this case, pseudonyms have been used for the victim, her mother, and her father to protect their privacy.

      . "Pneumothorax [ (pl.pneumothoraces) ] is the collection of air or gas in the space inside the chest around the lungs, which leads to a lung collapse.” Medline Plus, http://www. nlm.nih. gov/medlineplus/ency/article/007312. htm (last visited Sept. 5, 2013).

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

      .Both the video recording and the written statement were entered into evidence, but parts of each were redacted to exclude inadmissible evidence.

      . The statement is disjointed here, probably due to redaction.

      . The trial was continued until February 2012.

      . The right arm was later found to be fractured as well.

      . Pneumopericardium is air within the pericardium, or air surrounding the heart. Radi-opaedia.org., http://radiopaedia.org/articles/ pneumopericardium (last visited Sept. 5, 2013).

      .Pneumomediastinum is air in the space in the middle of the chest, between the lungs. Medline Plus, http://www.nlm.nih.gov/ medlineplus/ency/article/000084.htm (last visited Sept. 5, 2013).

      . We note at the hearing the year before, in February 2011, the defense did not move to suppress the video recording, nor did counsel object to this portion of the video then.

      . As the defense pointed out, there appears to be a typographical error in jury instruction D-12, as both D-l 1 (also refused) and D-12 deal with Count II and the lesser-included offense of misdemeanor child abuse. It would seem that D-12 was offered for Count III, not Count II.


author: GRIFFIS, P.J.,

text:
    Christopher EDWARDS, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00409-COA.
    Court of Appeals of Mississippi.
    Oct. 15, 2013.

      Christopher Edwards, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Christopher Edwards appeals the denial of his motion for post-conviction collateral relief. Edwards argues that he was subjected to double jeopardy, his plea was involuntary, and he was denied effective assistance of counsel. We find no error and affirm.

FACTS

¶2. On April 10, 2006, Edwards pled guilty to the crime of statutory rape. He was then sentenced to serve a term of twenty years, with fifteen years to be suspended, five years to serve, and five years of post-release supervision after his incarceration.

¶3. On January 20, 2010, Edwards’s probation was revoked for failure to comply with the terms of his post-release supervision. Specifically, Edwards was arrested for domestic violence. After a hearing, Edwards was ordered to serve the previously suspended fifteen years in prison.

¶ 4. On October 13, 2011, Edwards filed a motion for post-conviction collateral relief. His motion alleged that: (1) his conviction and sentence were imposed in violation of the United States Constitution and the Mississippi Constitution; (2) his sentence exceeds the maximum authorized by law; (3) there exists evidence of material facts not previously presented and heard that require vacation of the conviction or sentence in the interest of justice; (4) his plea was made involuntarily; and (5) his counsel was ineffective. On January 19, 2012, the circuit court determined that there was no merit to Edwards’s contentions and dismissed the motion.

ARGUMENT

I. Whether Edwards was subject to double jeopardy.

¶ 5. Edwards argues that double jeopardy was “imposed” upon him when the court reinstated the previously suspended fifteen-year portion of his sentence. Specifically, Edwards asserts that the court did not have the right to reinstate the fifteen-year portion of his initial sentence, which was suspended following his guilty plea to the charge of statutory rape.

¶ 6. It is well settled in Mississippi that courts have the authority to reinstate any sentence that was previously suspended. Pruitt v. State, 953 So.2d 302, 305 (¶ 8) (Miss.Ct.App.2002). Pruitt was arrested for violating the terms of his post-release supervision. Id. at 303 (¶ 2). Pruitt argued that he was subjected to double jeopardy when the circuit court revoked his suspended sentence and reincar-cerated him. Id. at 304 (¶ 6). This Court found that Pruitt was not “resentenced,” but rather his original sentence that had been suspended was reinstated for failure to comply with the terms of his post-release supervision. Id. at 304-05 (¶ 8).

¶ 7. In Anderson v. State, 89 So.3d 645, 651 (¶ 15) (Miss.Ct.App.2011), this Court held that the circuit court has the authority to revoke post-release supervision and order the defendant to serve the remainder of his suspended sentence. We concluded that this was not an alteration of the sentence but, rather, an enforcement of the original sentence. Id. at (¶ 14).

¶ 8. Mississippi Code Annotated section 47-7-34(2) (Rev.2011) provides:

The period of post-release supervision shall be conducted in the same manner as a like period of supervised probation, including a requirement that the defendant shall abide by any terms and conditions as the court may establish. Failure to successfully abide by the terms and conditions shall be grounds to terminate the period of post-release supervision and to recommit the defendant to the correctional facility from which he was previously released. Procedures for termination and recommitment shall be conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence.

Because Edwards failed to abide by the terms of his post-release supervision, no error occurred when the circuit court reinstated his original sentence and reincarcer-ated him for the remaining fifteen years. We find no error as to this issue.

II. Whether Edwards’s plea was voluntarily made.

¶ 9. Edwards next argues that he was induced to plead guilty, because he was never told that if after his release he violated the terms of his post-release supervision, he could potentially be sent back to prison.

¶ 10. When Edwards pled guilty, the plea petition provided that the prosecutor recommended that Edwards receive twenty years in the custody of the Mississippi Department of Corrections, with five years to serve and five years under post-release supervision. During his sentencing hearing, Edwards gave sworn testimony that he and his attorney had reviewed the sworn petition. Edwards acknowledged that his attorney had advised him of all of his constitutional rights and that he wanted to plead guilty to the charge of statutory rape.

¶ 11. The Mississippi Supreme Court has previously stated: “A guilty plea will be found valid if it is shown to have been voluntarily and intelligently made by the criminal defendant before the trial court.” Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009) (citing King v. State, 738 So.2d 240, 241 (Miss.1999)). “To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea.” Id. (citing Harris v. State, 806 So.2d 1127, 1130 (Miss.2002)).

¶ 12. The record supports a finding that the court told Edwards the prosecutor’s recommendation and that Edwards voluntarily and intelligently pled guilty after he was advised of his rights, the nature of the charge against him, and the consequences of his plea. We find that Edwards was well aware of what he was pleading guilty to and clearly understood the consequences of his plea. The circuit court was correct to deny the motion for post-conviction collateral relief on this issue. We find no error as to this issue.

III. Whether Edwards was denied effective assistance of counsel.

¶ 13. At Edwards’s sentencing hearing, he was represented by his original attorney. Once his probation was revoked for failure to abide by its terms, Edwards had a revocation hearing and was appointed a different attorney. Edwards argues that he received ineffective assistance of counsel when his original attorney was allowed to withdraw, and the attorney appointed to represent him at the revocation hearing lacked knowledge of his case.

¶ 14. In its order, the court noted that the agreement between Edwards and his original attorney required representation only through his plea hearing. Moreover, the court found that Edwards did not allege any conduct by his second attorney that would amount to ineffective assistance of counsel.

¶ 15. In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court stated:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Edwards has failed to offer any evidence that would show ineffective assistance of counsel. In fact, the only information Edwards provides in regard to this claim is that the trial court allowed ■ the original attorney to withdraw, because Edwards’s grandmother did not fully pay for the representation.

¶ 16. In applying Strickland to Edwards’s claim, we find that Edwards has failed to show that his attorneys’ performance was deficient or that any such deficiency prejudiced Edwards. We find no error as to this issue.

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

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


author: CARLTON, J.,

text:
    David FOSTER, Appellant v. Linda DURR and Mississippi Department of Corrections, Appellees.
    No. 2012-CP-01521-COA.
    Court of Appeals of Mississippi.
    Oct. 15, 2013.
    David Foster, appellant, pro se.
    Office of the Attorney General by R. Stewart Smith Jr., attorney for appellees.
    Before LEE, C.J., MAXWELL, and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. David Foster appeals the Sunflower County Circuit Court’s denial of his motion for post-conviction relief (PCR). Foster argues that his jail time served while awaiting trial should be applied to each of his consecutive sentences. Finding no error, we affirm.

FACTS

¶ 2. A Lauderdale County jury convicted Foster of grand larceny and robbery. On November 21, 1994, the Lauderdale County Circuit Court sentenced Foster as a habitual offender to serve five years in the custody of the Mississippi Department of Corrections (MDOC) for the grand-larceny conviction. The circuit court sentenced Foster to serve a consecutive term of fifteen years for the robbery conviction.

113. While awaiting trial on the grand-larceny and robbery charges, Foster spent a combined total of 233 days in the Meridian City Jail and the Lauderdale County Jail. His confinement included the following: 26 days for grand larceny from December 15, 1993 to January 10, 1994; 44 days for grand larceny from January 15, 1994 to February 28, 1994; 149 days for robbery from April 16, 1994 to September 12, 1994; and 14 days for grand larceny and robbery from November 7, 1994 to November 21, 1994. Foster received credit for the 233 days of pretrial jail time.

¶ 4. Foster filed a PCR motion, arguing that his jail time served while awaiting trial should be applied to each of his sentences. The circuit court denied the motion, finding that Foster received 233 days of jail-time credit for pretrial detention in the Meridian City Jail and the Lauderdale County Jail, which MDOC had already applied to the total term of the two sentences. The circuit court further explained that “Foster cannot receive credit twice for presentence jail-time served for multiple offenses during the same time period.” Foster appeals that decision.

STANDARD OF REVIEW

¶ 5. “This Court reviews a circuit court’s denial of a PCR motion under the clearly-erroneous standard of review.” Swilley v. State, 93 So.3d 901, 903 (¶ 7) (Miss.Ct.App.2012). We review questions of law de novo. Id.

DISCUSSION

¶ 6. Foster argues that his jail-time credit should apply to each of his sentences individually because his sentences are consecutive.

¶ 7. Mississippi Code Annotated section 99-19-23 (Rev.2007) states that a prisoner shall receive credit for the number of days incarcerated in municipal or county jail while awaiting trial on a criminal charge or appeal to a higher court after conviction. However, this Court clarified in Stanley v. State, 850 So.2d 154, 157 (¶ 12) (Miss.Ct.App.2003), that “a prisoner actually serving time for another conviction is not, within the meaning of [sjection 99-19-23, being held to await trial.”

¶ 8. The record reflects that Foster spent 233 days incarcerated for both grand larceny and robbery while awaiting trial on both charges. In addition, the Lauderdale County Circuit Court sentenced Foster for both convictions on the same day, November 21, 1994. We thus conclude that the circuit court correctly determined that Foster cannot receive credit twice for the same presentence jail-time served for multiple offenses. See generally Stanley, 850 So.2d at 157 (¶ 12).

¶ 9. After reviewing the record, we find no merit to Foster’s argument.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, MAXWELL, FAIR AND JAMES, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.


author: FAIR, J.,

text:
    Monroe RANDLE, Appellant v. MISSISSIPPI PAROLE BOARD, Appellee.
    No. 2013-CP-00576-COA.
    Court of Appeals of Mississippi.
    Oct. 15, 2013.
    Monroe Randle, appellant, pro se.
    Anthony Louis Schmidt Jr., James M. Norris, R. Stewart Smith Jr., attorneys for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Randle was convicted of murder in 1980 in the Circuit Court of Clay County, Mississippi, and received a life sentence. In February of 2010 he was granted parole by the Mississippi Parole Board, which revoked his parole in July of 2012, when he was arrested for simple assault by threat and firearm possession.

¶ 2. Randle asserted the Board’s revocation of his parole was unlawful and filed a petition for habeas corpus relief seeking that the revocation be set aside. His petition was properly treated as a post-conviction collateral relief (PCR) petition by the Rankin County Circuit Court, which dismissed it for lack of jurisdiction. He has appealed that dismissal to this Court.

¶ 8. We concur with the trial court’s finding that it did not have jurisdiction to adjudicate Randle’s PCR claims. “[A] PCR motion is properly filed in the county where the prisoner was convicted, not where the prisoner is incarcerated.” Nelson v. Bingham, 116 So.3d 172, 174 (¶ 6) (Miss.Ct.App.2013). Therefore, we affirm the trial court’s dismissal for the reasons discussed in detail in Nelson.

¶ 4. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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


author: IRVING, P.J.,

text:
    James KIMBROUGH, Appellant v. FOWLER’S PRESSURE WASHING, LLC and Amfed National Insurance Company, Appellees.
    No. 2012-WC-01451-COA.
    Court of Appeals of Mississippi.
    Oct. 15, 2013.

      Robert E. O’Dell, Pascagoula, attorney for appellant.
    Jeffrey Stephen Moffett, Ridgeland, Jeremy Thomas England, Gulfport, attorneys for appellees.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. James Kimbrough, while working for Fowler’s Pressure Washing LLC (Fowler’s), filed a motion to compel the payment of compensation benefits with the Mississippi Workers’ Compensation Commission (Commission) after his employer’s insurer, Amfed National Insurance Company (Amfed), ceased payment of benefits. An administrative judge (AJ) denied Kim-brough’s motion. Kimbrough then filed a petition for review with the full Commission, which affirmed the AJ’s ruling. Feeling aggrieved, Kimbrough appeals and argues that the Commission erred in not ordering Fowler’s and Amfed to resume paying him compensation benefits.

¶ 2. Because we find that the Commission’s order is not a final, appealable judgment, we dismiss this appeal for lack of jurisdiction.

FACTS

¶ 3. On September 12, 2010, Kimbrough slipped and fell on loose gravel at his work site, injuring himself while cleaning vessels in Pascagoula, Mississippi. At the time of the incident, Kimbrough’s employer, Fowler’s, was a subcontractor for Patriot Environmental Services Inc. (Patriot). As a result of his fall, he injured his left knee, which required surgery. While in physical therapy for his knee injury, Kimbrough injured his back. Kimbrough filed a petition to controvert with the Commission on December 6, 2011. Amfed initially paid benefits to Kimbrough.

¶ 4. Kimbrough subsequently filed a claim for compensation with the U.S. Department of Labor under the U.S. Long-shore and Harbor Workers’ Compensation Act (LHWCA) against Patriot. Upon learning that Kimbrough had filed a claim under the LHWCA, Amfed discontinued payment of compensation benefits. Kim-brough filed a motion to compel payment. Fowler’s and Amfed moved to dismiss Kimbrough’s claim for benefits on the grounds that Kimbrough was classified as a maritime employee and was precluded from receiving benefits under the Mississippi Workers’ Compensation Act (MWCA) because the MWCA does not apply to maritime employment. After hearing arguments on the motions, the AJ denied Kim-brough’s motion to compel the payment of benefits, denied Fowler’s and Amfed’s motion to dismiss, and stayed the claim until further notification as to a finding by the U.S. Department of Labor.

¶ 5. Additional facts, as necessary, will be related during the analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. The law is clear that an appeal may not be taken unless the Commission’s order is final. Superior Mfg. Group, Inc. v. Crabtree, 62 So.3d 992, 995 (¶ 11) (Miss.Ct.App.2011). This Court lacks jurisdiction if the Commission’s order is not a final one. Id. at 993 (¶ 2). “[Wjhen the substantial rights of the parties involved ... remain undetermined[,]” the order is not final. Bullock v. AIU Ins. Co., 995 So.2d 717, 723 (¶ 20) (Miss.2008) (quoting Blankenship v. Delta Pride Catfish, 676 So.2d 914, 917 (Miss.1996)) (internal quotation marks omitted). Here, the Commission affirmed the AJ’s order, which only denied Kim-brough’s motion to compel, denied Fowler’s and Amfed’s motion to dismiss, and stayed the case pending the U.S. Department of Labor’s decision on Kimbrough’s petition under the LHWCA. The Commission did not make a final adjudication on the merits of Kimbrough’s claim. Thus, we lack jurisdiction to entertain this appeal, and it must be dismissed.

¶ 7. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . According to Kimbrough’s motion to compel payment of compensation benefits, Amfed began paying Kimbrough compensation benefits in November 2010, and suspended the payments in February 2011.

      . After Kimbrough filed his notice of appeal, Patriot and its insurance carrier agreed to pay Kimbrough compensation under the LHWCA.