author: MAXWELL, J., BARNES, J.,

text:
    Wilbert CROOK a/k/a Wilbert Donnell Crook, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01528-COA.
    Court of Appeals of Mississippi.
    April 10, 2012.
    Rehearing Denied Aug. 28, 2012.

      Leslie S. Lee, Jackson, Phillip Broad-head, Oxford, attorneys for appellant.
    Office of the Attorney General By Lisa Lynn Blount, attorney for appellee.
   MAXWELL, J.,

for the Court:

¶ 1. A Forrest County jury found Wilbert Crook guilty of aggravated assault for stabbing Gemile Carter with a box cutter. The trial court sentenced Crook to twenty years in the custody of the Mississippi Department of Corrections (MDOC) as a habitual offender, without eligibility for parole or probation. Crook now appeals, raising three issues. He claims the trial court erred in refusing jury instruction D-10 on self-defense and allowing certain comments by the prosecution during its closing argument rebuttal. Crook also argues that the verdict was against the weight and sufficiency of the evidence. Finding no error, we affirm Crook’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the afternoon of July 18, 2009, Loletta Dunn, her cousin Carter, and her three sons were in her vehicle on their way to a barbecue at Loletta’s father’s house. Crook and Loletta had been romantically involved for approximately one year but had recently broken up. Crook had borrowed Victor Ramirez’s truck to search for Loletta. Crook’s friend Willie Smith was with him. Crook passed Loletta on the road, and both vehicles pulled over. Crook and Loletta exited their respective vehicles and began arguing.

¶ 3. Testifying for the State, Loletta said Carter left her vehicle and began arguing with Crook, telling Crook to “quit cussing her out and calling out her name.” Crook then “got up in [Carter’s] face” and cursed him. Crook and Carter began fist fighting, but Loletta broke it up. Loletta stated:

And the next thing I know I see Wilbert Crook come out with a box cutter, and I’m like, “Don’t cut my cousin. Don’t cut him.” Like that. But they was steady arguing, but [Crook] looked like he was putting the box cutter back in his pocket, but then they started fighting again and the next thing I know I just see my cousin got blood all over his shirt.

Once the fight stopped, Loletta picked up the box cutter and tossed it into a field. She also began throwing full beer bottles out of her vehicle at Crook’s truck, breaking the windshield. Crook and Loletta drove away in their vehicles. Loletta dropped Carter off at her house and asked someone to call the police. She then went to Ramirez’s apartment, where Crook was located, and began throwing full beer bottles and bricks at the apartment door to keep Crook there until the police arrived. Loletta claimed she did not see who started the fight. Nor did she see Carter -with any weapon. She also did not actually witness Crook stab Carter, but saw that Carter was injured.

¶4. Smith also testified for the State. On July 18, he and Crook decided to borrow Ramirez’s truck and purchase beer and half a pint of whiskey. After drinking the alcohol, they went in search of Loletta and found her. Loletta told Crook to quit following her. The two got out of their vehicles and began arguing. Smith testified that Carter got out of Loletta’s vehicle with a ceiling-fan blade, but tossed it back in his vehicle when Crook told Carter to “fight me like a man.” When the two men began fighting, Carter had no weapon. Smith tried to break them up, but Crook cut Smith across the nose “with the razor.” Smith separated the two men and urged Crook to leave. Crook then put Carter in a “headlock.” Smith saw blood coming from Carter, but did not see Carter get stabbed.

¶ 5. Carter testified that on the day of the incident he went with Loletta and her children to see Loletta’s father. They passed Crook in Ramirez’s truck, and Crook flagged them down. Crook and Lo-letta began arguing, but when Crook became disrespectful and started calling Lo-letta names, Carter got out of Loletta’s vehicle without a weapon and approached Crook. Crook started “getting violent” towards Carter, cursing at him. Carter noticed Crook had a box-cutter knife, so Carter retrieved a wooden ceiling-fan blade from Loletta’s vehicle. Crook told Carter to “fight like a man.” Carter then threw the fan blade back in the vehicle, and Crook put away his box cutter. Carter claims he never hit Crook with the fan blade. They began fighting, and Crook put Carter in a headlock and bit off a chunk of Carter’s finger. Smith saw Crook’s arm moving, then saw blood everywhere. After they stopped fighting, Loletta told Carter he was bleeding. Carter could not breathe and realized he had been stabbed deeply twice in the chest and once in the upper shoulder blade. His injuries required hospitalization.

¶ 6. Ramirez testified that when Crook returned to his apartment, Crook had a ripped shirt with blood on it. Crook told Ramirez he had “just cut some guy.” Ramirez testified Crook always carried a box cutter because Crook was a painter and installed carpet.

¶ 7. Officer Eric Hatten with the Hat-tiesburg Police Department, responding to a dispatch call, arrived at Ramirez’s apartment. Officer Hatten testified that Crook was handcuffed and looked like “he had been involved in something.” He was “real sweaty,” his shirt was torn, and he had a bruise over his left eye that looked like it had been made by a fist. Crook told Officer Hatten that he had been in an altercation and the “person had fallen on a knife or had been cut but the knife did not belong to him.”

¶ 8. Dr. Eric Jordan, who treated Carter in the emergency room, testified Carter had potentially life-threatening injuries. Carter’s three stab wounds penetrated the muscle, and his lung collapsed as a result of the stabbing.

¶ 9. Crook testified on his own behalf. He claimed the State witnesses’ versions of the stabbing conflicted with his version. Crook testified that during the argument Loletta began walking back to her vehicle, and Crook cursed her. Carter then jumped out of Loletta’s vehicle with “his fists balled up,” heading towards Crook. Carter cursed Crook and “started swinging.” Crook hit Carter once, and Carter stated, “that’s all right. I got something for you.” Carter ran back to Loletta’s vehicle, retrieving the fan blade. As Crook was retreating to his truck, Carter walked towards Crook with the fan blade and said, “I’m going to bust me some crack head.” Carter and Loletta were both cursing Crook, so Crook brandished his box cutter from his pants pocket in self-defense. Crook claimed Carter then hit him in the face with the fan blade. Carter pushed Crook to the ground and fell on top of him; Crook still had the box cutter in his hand. The men rolled around until Loletta broke them up. She noticed blood on Carter’s shirt and said to Crook, “you done cut my cousin.” Crook claimed he did not cut anyone. Loletta began throwing full beer bottles at Crook’s vehicle, breaking the truck’s windshield. Crook then departed the scene.

¶ 10. On cross-examination, Crook admitted he had been searching for Loletta to give her a beer prior to the altercation. He claimed he still considered Loletta his girlfriend. Crook also admitted that he and Smith had consumed several beers and a half pint of whiskey before finding Loletta.

¶ 11. In February 2010, Smith was arrested for a probation violation. Smith testified that during his incarceration, he shared a cell block with Crook in the Forrest County Jail. Crook wrote out a statement about the altercation and had Smith sign it. Three fellow prisoners witnessed it. Smith is illiterate, but he can sign his name. This statement, entered into evidence, claimed that Carter had hit Crook in the face with the ceiling-fan blade, which conflicts with Smith’s testimony at trial, where he adamantly denied Carter ever hit Crook with a fan blade. The statement indicates Carter then pushed Crook down, and Carter fell on top of Crook. The men rolled a couple of times, and then Smith and Loletta broke up the fight. Crook testified that he gave this statement to his attorney two months before trial; however, the prosecutor stated he did not receive it until ten days before trial.

¶ 12. The jury found Crook guilty of aggravated assault. Crook’s post-trial motions on the weight and sufficiency of the evidence were denied, and he timely appealed.

ANALYSIS OF THE ISSUES

I. Jury Instruction D-10 on Self-Defense

¶ 13. The standard of review for a challenge to jury instructions is well established:

Jury instructions must be read as a whole to determine if the instructions were proper.... Jury instructions must fairly announce the law of the case and not create an injustice against the defendant. ... “In other words, if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.”

Davis v. State, 18 So.3d 842, 847 (¶ 14) (Miss.2009) (quoting Milano v. State, 790 So.2d 179, 184 [(¶ 14)] (Miss.2001)). “A defendant has a right to jury instructions that present his theory of the case, but that right is not absolute. ‘The court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions or is without foundation in the evidence.’ ” Id. at (¶ 15) (quoting Phillipson v. State, 943 So.2d 670, 671 (¶ 6) (Miss.2006)). Regarding self-defense instructions: “When one jury instruction adequately covers the defendant’s theory of self-defense, the trial court may properly refuse ... a second instruction that is redundant or cumulative.” Johnson v. State, 749 So.2d 369, 374 (¶ 18) (Miss.Ct.App.1999) (citing Gossett v. State, 660 So.2d 1285, 1295 (Miss.1995)).

¶ 14. Crook argues it was reversible error for the trial court to refuse his jury instruction on the standard of reasonableness used to assess whether he acted in justifiable self-defense. Crook claims this refusal denied him the right to have his theory of self-defense fairly presented to the jury. Jury instruction D-10 reads:

The Court instructs the jury that you are not to judge the actions of Wilbert Crook in the cool, calm light of after-developed facts, but instead you are to judge his actions in the light of the circumstances confronting Wilbert Crook, at the time of the altercation with Gemile Carter, as you believe from the evidence that those circumstances reasonably appeared to him on that occasion; and if you believe under those circumstances it reasonably appeared to Wilbert Crook, that he then and there had reasonable grounds to apprehend great bodily harm from the actions of Gemile Carter, and there reasonably appeared to Wilbert Crook to be imminent danger of such harm being accomplished; then Wilbert Crook was justified in acting in self defense and you must find Wilbert Crook not guilty.

The trial judge rejected D-10, after the State objected to the “cool, calm light of after developed facts” language.

¶ 15. However, the trial judge gave six separate jury instructions touching on self defense. One of them, D-3, is a “Robinson instruction,” complete with the additional language required by Reddix v. State — that the jury must acquit if it believed Crook acted in self defense. D-B, offered by Crook, explained:

The Court instructs the jury that to make an assault justifiable on the grounds of self-defense the danger to the defendant must be either[] actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the other person involved in the altercation to kill the defendant or do him some great bodily harm, and in addition to this the defendant must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the grounds upon which the defendant acts.
If you find from the evidence that Wilbert Crook acted in self-defense during the altercation with Gemile Carter then you must find Wilbert Crook not guilty.

¶ 16. In Gossett v. State, 660 So.2d at 1295, one of the defendants made the exact same argument as Crook, that a Robinson instruction “did not properly instruct the jury to consider the circumstances existing at the time of the incident from his viewpoint as the defendant.” The defendant relied on Windham v. State, 91 Miss. 845, 852, 45 So. 861, 862 (1908) and Johnson v. State, 42 So. 166 (Miss.1906), which both held the “defendant was erroneously denied [a self-defense] instruction stating that jury should not expect from the defendant the same cool and calm judgment they would presently possess, but instead they should judge the defendant’s acts by the facts and circumstances existing at the time of the incident.” Id.

¶ 17. The supreme court in Gossett found, while the given Robinson instruction “may not have specifically addressed this point, the instruction was nevertheless a correct statement of the law on self-defense.” Id. The supreme court “expressly approved the instruction submitted to the jury” and even “urged prosecutors to employ this same self-defense jury instruction in the future.” Id. (citing Robinson, 434 So.2d at 207).

¶ 18. Relying on Gossett, this court has similarly concluded “[w]hen the trial court gives a Robinson instruction, the trial court does not err when it does not instruct the jury to examine the circumstances at the time of the incident from the defendant’s viewpoint.” Johnson, 749 So.2d at 373 (¶ 13) (citing Gossett, 660 So.2d at 1295). However, “[w]hen self-defense becomes an issue, the State’s instruction setting forth the elements of the crime should specifically place the burden of proof upon the State.” Id. at 374 (¶ 20) (citing Miss. Model Jury Instructions, § 114.01 (2d ed.1998)). “Thus, when the State’s elements instruction is paired with the Robinson-approved definition of self-defense, a jury would be sufficiently instructed as to the defendant’s right of self-defense and the State’s burden in disproving self-defense beyond a reasonable doubt.” Id.

¶ 19. Here, in addition to giving the jury a Robinson-approved definition of self-defense, jury instruction S-3A on the elements of the offense specifically placed the burden of proof on the State to prove beyond a reasonable doubt that Crook did not act in necessary self-defense. And D-5 instructed that Crook’s assault was excusable and that the jury must find him not guilty if “Crook by accident and misfortune ... injured Gemile Carter with a box cutter during an altercation.” (Emphasis added). A third instruction, D-2, explained:

The Court instructs the jury that an assault is justified when done in self defense. Wilbert Crook has raised the claim of self-defense. It is the State of Mississippi’s burden to prove beyond a reasonable doubt that Wilbert Crook did not act in self-defense, and unless the State meets this burden and proves to you beyond a reasonable doubt that Wilbert Crook was not acting in self-defense, then it is your sworn duty to find Wilbert Crook “Not Guilty.”

Crook’s “Robinson instruction,” D-S, is a correct statement of the law. When it is viewed in combination with an instruction that the State had to disprove self-defense beyond a reasonable doubt, and another explaining the jury must acquit Crook if it found the stabbing was caused by accident and misfortune during the fight, we find the trial judge sufficiently instructed the jury on Crook’s theory of self-defense.

¶ 20. Both Crook and the dissent argue Maye v. State, 49 So.3d 1124 (Miss.2010) entitled him to instruction D-10. But we point out the supreme court in Maye did not hold or in any way intimate that an instruction mirroring Crook’s proposed D-10 must be routinely given in every case where self-defense is raised. Instead, a split supreme court reversed Corey Maye’s murder conviction because the excluded jury instructions did “not fully define self-defense as applied to the facts of this case.” Id. at 1130 (¶ 10) (emphasis added). Indeed, the supreme court in Maye mentioned the fact-specific nature of its decision on the excluded jury instruction, not once but twice — a pertinent distinction missed by the dissent. Id. at 1130 (¶ 10); id. at 1131 (¶ 15) (finding self-defense instructions given “did not go far enough in this case ”) (emphasis added).

¶21. Without question, Maye’s facts are certainly unusual. Maye shot a police officer who was executing a lawful search warrant at Maye’s residence. At trial, Maye claimed self-defense, suggesting he mistakenly believed the officer to be an intruder. According to Maye, he was not initially aware he had shot a police officer.

¶ 22. Our facts here differ vastly. Crook’s self defense claim, unlike Maye’s, did not concern “after developed facts.” Crook admitted pulling out a box cutter during the fight to allegedly protect himself from Carter smacking him with a fan blade. He claimed he was holding the box cutter, and Carter fell on it during the struggle. In short, he claimed he protected himself but that Carter’s stabbing was accidental — a defense the jury was specifically instructed about in D-5. Crook made no mention of a misapprehension or mistaken belief of imminent danger on his part. Nor did he allege he misjudged his purported attacker’s status. And there was certainly no claim that Crook mistook the supposed weapon Carter allegedly wielded — a wooden fan blade. Had Crook claimed he stabbed Carter because he appeared to be a robber, or that Carter brandished, for example, a toy gun, instead of a real one, or a whiskey bottle, instead of a knife, our view would possibly differ. If such were the case, under Maye, Crook would have likely been entitled to instruct the jury in line with rejected instruction D-10: “you are not to judge the actions of Wilbert Crook in the cool, calm light of after developed facts, but instead you are to judge his actions in the light of the circumstances confronting Wilbert Crook, at the time of the altercation with Gemile Carter.” (Emphasis added). But here, unlike Maye, there is no misapprehension or mistaken belief later brought to light by “after developed facts.” Indeed, nothing at all differed in the least from “the circumstances confronting Wilbert Crook, at the time of the altercation with Gemile Carter.”

¶ 23. Maye ⅛ application is more limited than the dissent suggests. Maye recognized that a Robinson instruction, like D-3, which the trial judge gave here, “correctly defined self defense, generally.” Id. at 1131 (¶ 15). But the Maye court held “it did, not go far enough in this case.” Id. (emphasis added). Unlike Maye, where after-developed facts showed the intruder Maye thought he was shooting was indeed a policeman executing a warrant, here we are faced with a routine self-defense and accident claim. Thus, D-3, the “Robinson instruction”— which has carried the supreme court’s stamp of approval for twenty-five years— was a complete statement of the law, when considered with S-3A, and D-5, the accident/misfortune instruction. Considering these instructions together, we find the jury was adequately instructed on Crook’s defense theory.

II. Prosecutorial Misconduct

¶ 24. Crook complains that the prosecutor made several improper comments during closing argument rebuttal that inflamed the jury and attacked Crook’s constitutional rights, thereby prejudicing him and resulting in an unfair trial. Crook contends the trial judge further compounded the prosecutor’s allegedly prejudicial remarks by admonishing defense counsel in front of the jury, “exacerbating a pattern of disrespect and unnecessary comments” by the trial judge. Further, Crook states that the trial judge only rebuked defense counsel and not the prosecutor during the trial.

¶ 25. “Attorneys are allowed a wide latitude in arguing their cases to the jury. However, prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury.” Sheppard v. State, 777 So.2d 659, 661 (¶ 7) (Miss.2000) (citing Miter v. State, 660 So.2d 961, 966 (Miss.1995)). The standard of review for “lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Slaughter v. State, 815 So.2d 1122, 1130 (¶ 45) (Miss.2002) (citing Sheppard, 777 So.2d at 660 (¶ 7)).

¶ 26. To review whether a prosecutor’s closing remarks were reversible error, we employ the two-part test adopted in Spicer v. State, 921 So.2d 292, 318 (¶ 55) (Miss.2006). First, we review the remarks to determine if they were improper. Id. If so, then we analyze whether the remarks prejudicially affected the rights of the accused. Id. “It must be clear beyond a reasonable doubt[,] that absent the prosecutor’s comments, the jury could have found the defendant guilty.” Id. But before applying this test, we must determine if defense counsel objected to the statement or if defense counsel invited the statement in light of the surrounding circumstances. Id. at 317-18 (¶¶ 52-58). “[I]f no contemporaneous objection is made, the error, if any, is waived.” Slaughter, 815 So.2d at 1130 (¶ 47) (quoting Walker v. State, 671 So.2d 581, 597 (Miss.1995)).

¶ 27. Specifically, Crook complains that the prosecutor made the following improper comments during closing rebuttal, which unjustly prejudiced the defense. First, the prosecutor intentionally sought to inflame the jury with an air of cynicism when he stated: “Everything doesn’t happen in front of the First Baptist Church at twelve noon.” Second, he made a reference to an episode of the Bones television show where the defendant manipulated the witnesses. Third, the prosecutor stated there was “an assault on the judicial system” in reference to testimony in favor of Crook by Loletta’s estranged husband, whom the prosecutor referred to as one of Crook’s “cronies.” The defense did not object to the “church” and “cronies” comments; accordingly, any error is waived. Regardless of waiver, we find Crook was not unjustly prejudiced by any of the above comments. Absent these comments, the jury could have found Crook guilty beyond a reasonable doubt. Additionally, none of these comments equate to an improper send-a-message comment, as Crook argues.

¶ 28. Finally, Crook argues that the trial judge was disrespectful to defense counsel and unfairly biased towards the State throughout the trial. Specifically, Crook notes the following instances. During the defenses’s case-in-chief, when defense counsel attempted to offer Smith’s statement into evidence during the direct examination of another witness who signed it, and the trial judge stated: “Why didn’t you bring it out when Mr. Smith was on the stand?” Also, during defense counsel’s closing argument when he told the jury Crook had been in jail for a year and hasn’t “been able to bond out” because of lack of financial resources, the trial judge sustained the State’s objection to the comment and told the defense counsel he “was out of line.” Crook further criticizes the trial judge for not admonishing the prosecutor, or sustaining defense counsel’s objections, when the State made the comment about the Bones television show, called Crook and the defense witness “cronies,” and made the comment about “an assault on the judicial system.” “[T]rial judges may explain their rulings on evi-dentiary objections as long as they do not comment upon the evidence in a prejudicial manner.” Walden v. State, 29 So.3d 17, 22 (¶ 18) (Miss.Ct.App.2008). We find no demonstration of disrespect or bias during the trial by the trial judge against the defense; this argument is wholly without merit.

III. Sufficiency and Weight of the Evidence

¶ 29. Finally, Crook claims the jury verdict was against the sufficiency and weight of the evidence.

A. Sufficiency of the Evidence

¶ 30. A motion for a directed verdict and a judgment notwithstanding the verdict (JNOV) challenge the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “All credible evidence supporting the conviction is taken as true; the State receives the benefit of all favorable inferences reasonably drawn from the evidence.” Withers v. State, 907 So.2d 342, 351 (¶ 24) (Miss.2005) (quoting Eakes v. State, 665 So.2d 852, 872 (Miss.1995)). The court must ask “whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]’ ” Bush, 895 So.2d at 843 (¶ 16) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). “[I]f a review of the evidence reveals that it is of such quality and weight that, ‘having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ the evidence will be deemed to have been sufficient.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 31. Considering the evidence in the light most favorable to the State, we find that there was sufficient evidence presented for the jury to convict Crook of aggravated assault. The jury was instructed on the elements of aggravated assault: that Crook “unlawfully, willfully, and feloniously and knowingly caused bodily injury to Gemile Carter with a box cutter.” See Miss.Code Ann. § 97-3-7(2)(b) (Supp.2011). It was further instructed it must find “such behavior was not done in necessary self-defense.” The State presented sufficient evidence that Crook was the initial aggressor and did not act in self-defense. Crook went looking for and found Loletta in an attempt to reconcile their relationship, but during the confrontation Loletta told him to quit following her. Crook and Smith had been drinking before the altercation. Carter exited Loletta’s vehicle to tell Crook to stop “disrespecting” his cousin Loletta. According to Loletta’s testimony, Carter did not have a weapon, and Crook “got up in [Carter’s] face and cursed him.” Carter testified he retrieved the fan blade only after Crook became violent towards him; however, Carter did not walk towards Crook with the fan blade, but put it back in the vehicle. Carter also testified he never hit Crook with it. Crook testified that he was cursing Loletta, that Carter exited Loletta’s vehicle without a weapon, and Crook hit Carter. Loletta testified Crook pulled the box cutter out of his pocket. Smith, who was with Crook during the incident, also testified that Carter put the fan blade back in the vehicle and did not hit Crook with it. Although Smith did not see Crook stab Carter, he did see Crook’s arm move when Crook had Carter in a headlock, and then there was blood everywhere. Further, Ramirez testified that Crook told him he had cut someone. Additionally, Carter’s wounds were consistent with a stabbing, as they were deep.

¶ 32. Viewing the evidence in the light most favorable to the State, there was sufficient evidence to convict Crook of aggravate assault. Accordingly, the trial court did not abuse its discretion in denying Crook’s motion for a directed verdict or a JNOV.

B. Weight of the Evidence

¶ 33. A motion for a new trial challenges the weight of the evidence. Bush, 895 So.2d at 844 (¶ 18). The standard of review for a trial court’s denial of a motion for a new trial is abuse of discretion. Id. The reviewing 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.” Id. All “evidence consistent with the defendant’s guilt is accepted as true together with any reasonable inferences that may be drawn from that evidence.” Young v. State, 891 So.2d 813, 821 (¶ 21) (Miss.2005) (citations omitted). “Any factual disputes are properly resolved by the jury and do not mandate a new trial.” Moore v. State, 859 So.2d 379, 385 (¶ 26) (Miss.2003) (quoting McNeal v. State, 617 So.2d 999, 1009 (Miss.1998)).

¶ 34. Crook argues that the inconsistent testimony by the State’s witnesses points to a lack of weight as to the State’s evidence. We disagree. While there were inconsistencies in the testimony, the State established all of the elements of aggravated assault. The jury resolves conflicts in evidence, and in the case apparently found the testimony of Loletta, Carter, and Smith more credible than Crook’s testimony. Viewing the evidence in the light most favorable to the verdict, the weight of the evidence was not so contrary to the verdict that allowing this judgment to stand would sanction an unconscionable injustice. Therefore, the trial court did not err in denying Crook’s motion for a new trial.

¶ 35. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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

BARNES, J.,

dissenting:

¶ 36. With all respect to the majority, I find this case is controlled by Maye v. State, 49 So.3d 1124 (Miss.2010) and the principles noted therein. I would, therefore, reverse Crook’s conviction and remand for a new trial before a properly instructed jury.

¶ 37. The trial court’s refusal of jury instruction D-10 resulted from the prosecution’s misrepresentation of controlling authority to the court. The prosecutor cited Miller v. State, 733 So.2d 846 (Miss.Ct.App.1998) and Booker v. State, 64 So.3d 988 (Miss.Ct.App.2010) as being critical of the “cool, calm light of after-developed facts” language of proposed instruction D-10. While both cases dealt with jury instructions similar to D-10, the prosecutor’s comment was inaccurate because those cases did not criticize the language of this jury instruction. On appeal, the State concedes that the prosecutor “misapprehended controlling case law,” but claims the prosecutor’s misrepresentation to the trial court was unintentional and that any error was harmless. While I have no reason to doubt the unintentional nature of the misrepresentation, I cannot agree that it was harmless. The misrepresentation resulted in the denial of a proper jury instruction that was not covered by any other instruction.

¶38. In Crook’s case, three jury instructions relating to self-defense were given to the jury — one from the prosecution and two from the defense-S-2, D-3, and D-4. However, none of these instructions provided proper guidance to the jury on how to judge the reasonableness of Crook’s actions during the altercation, as I find mandated by Maye.

¶ 39. The majority seeks to distinguish Maye because Maye’s theory for claiming justifiable homicide was not merely self-defense, but also a “defense-of-others” rationale with respect to his infant daughter. Maye, 49 So.3d at 1130 (¶ 11). The supreme court reversed, expressly stating that “neither” Maye’s theory of self-defense nor his theory of defense-of-others was covered by the other instructions given on self-defense:

Maye’s theory of the case was self-defense, which was supported by some evidence. Instruction D-8 was a correct statement of the law regarding how the jury should have interpreted Maye’s actions, and it properly would have extended Maye’s self-defense claim to include his asserted claim of defense of his infant daughter. Neither of these was covered by other instructions. Therefore, we hold that the trial court abused its discretion by refusing instruction D-8, an error which warrants reversal.

Id. at 1132 (¶ 18) (emphasis added and citation omitted). I cannot adopt the majority’s position that the defense-of-others rationale was the supreme court’s reason for finding reversible error. The Maye court clearly found two separate errors in the denial of the instruction: both Maye’s defense-of-others rationale and his self-defense rationale.

¶ 40. Maye recognized that the language of proposed instruction D-10 has been a proper statement of the law for over one hundred years. The Maye court cited McCrory v. State, 25 So. 671, 671-72 (Miss.1899) for the principle that “the defendant should ... be permitted to claim the benefit of any apparent, as well as of any real, danger that the evidence afforded him, and that he may ... act upon the facts of the case as they reasonably appeared to him, and was justified in so doing.” Maye, 49 So.3d at 1132 (¶17). Maye further cited Scott v. State, 42 So. 184, 184-85 (Miss.1906), where the court stated that “in passing upon the action of the defendant the jury should not try him by the light of after-developed events [nor] hold him to the same cool and correct judgment which they are able to form. They should put themselves in his place and judge of his acts by the facts and circumstances by which he was surrounded.” Maye, 49 So.3d at 1132 (¶ 17) (brackets by the Maye court).

¶ 41. Further, the Maye court found the “Robinson instruction” — jury instruction six in Maye and instruction D-3 in this case — to be insufficient in instructing the jury on how to view the conduct of the defendant at the time of the incident. Both jury instructions are substantially similar in their statement that the defendant must have “reasonable grounds” to believe or apprehend that the victim intended to do “some great bodily harm” and have “reasonable grounds to apprehend that there is imminent danger of such” design or act “being accomplished.” See id. at 1130 (¶ 10). Further, each instruction advised that the jury determines “the reasonableness of the grounds.” See id. However, the Maye court criticized instruction six because it did not “go far enough” and tell the jury how to “determine the reasonableness of the grounds upon which the defendant acts.” Id. at 1131 (¶ 15). In this case, the only refer-enees to “reasonableness” as it relates to self-defense appear in three instructions given to the jury: D-3, S-2, and D — 1 Instruction S-2 stated that the assault can only be justified if the danger to life or injury “must be, or reasonably appear[s] to be, imminent and present at the time the defendant commits the assault....” Also, D-4 provided that Crook acted in self-defense if he “had reasonable grounds to fear he would suffer great bodily harm and there was imminent danger of such harm occurring.”

¶ 42. These instructions go no further in advising the jury how to interpret Crook’s actions than the Robinson instruction found inadequate in Maye. No instruction told the jury to judge Crook’s actions as the “circumstances reasonably appeared to him” at the time of the altercation, and not within the “cool” judgment that they were able to form. It is uncontested that there was an altercation between Crook and Carter, and that at some point Carter was wielding a fan blade. Therefore, I find it was important for the jury to be instructed to consider Crook’s self-defense theory from the standpoint of the circumstances as they appeared to Crook at the time of the incident. I cannot limit Maye ⅛ holding to just its facts.

¶43. The majority also claims there was no justification in the record for misapprehension or mistaken belief, which was later brought to light by “after developed facts”; therefore, jury instruction D-10 was not justified. However, the State in Scott argued that it was not reversible error to refuse a similar instruction because there was no conflict in the testimony. Scott, 42 So. at 184. The supreme court disagreed, reversing and remanding the case for a new trial. Id. at 185. The supreme court in Maye quoted Scott in holding that the jury should have been instructed on two separate issues, noting: “in passing upon the action of the defendant the jury should not try him by the light of after-developed events [nor] hold him to the same cool and correct judgment they are able to form.” Maye, 49 So.3d at 1132 (¶ 17) (quoting Scott, 42 So. at 184-85) (brackets by the Maye court). Further, if the “after-developed events” portion of the jury instruction was not justified here, it would have been the duty of the trial judge to revise it and give the remainder of the instruction to which the defendant was entitled. See Maye, 49 So.3d at 1132 n. 3 (citing Manuel v. State, 667 So.2d 590, 593 (Miss.1995)).

¶ 44. In conclusion, the principles announced in D-10 have been a proper statement of the law in this State for over one hundred years. See Maye, 49 So.3d at 1131-32 (¶ 17). Jury instruction D-10 was properly supported by the facts, and none of the other jury instructions cover how the conduct of the defendant should be viewed. The Mississippi Supreme Court in Maye expressly determined that the Robinson instruction was inadequate to do so. Therefore, I would reverse and remand for a new trial before a properly instructed jury.

GRIFFIS, P.J., ISHEE AND RUSSELL, JJ„ JOIN THIS OPINION.

      .In addition to the four instructions reproduced in this opinion (including note 4), the trial judge also gave the following two instructions:
      Jury instruction S-2:
      This Court instructs the Jury that a person may not use more force than reasonably appears necessary to save his life or protect himself from great bodily harm. The question of whether Wilbert Donnell Crook was justified in using the weapon is for the determination by Jury.
      The law tolerates no justification and accepts no excuses for assault with a deadly weapon on the plea of Self-Defense except that the assualt by Wilbert Donnell Crook on Gemile Carter was necessary or apparently so to protect his life or his person from great bodily injury and there was immediate danger of such design being accomplished. The danger to life or of great personal injury must be, or reasonably appear to be, imminent and present at the time the defendant commits the assault with the deadly weapon. The term “apparent” as used in "apparent danger” means such overt, actual demonstration by conduct and acts of a design to take life or do some great personal injury as would make the assault apparently necessary to self-preservation or to escape great bodily harm.
      Jury instruction D-4:
      The Court instructs the jury that a person is under no duty to retreat and avoid the necessity of using deadly force where otherwise an assault is committed in self defense. If you find from the evidence that Wilbert Crook acted in self defense during the altercation with Gemile Carter because he had reasonable grounds to fear that he would suffer great bodily harm and there was an imminent danger of such harm occurring, then Wilbert Crook would have no duty to retreat from the altercation with Gemile Carter whether he could have done so with complete safety or not.

      . In Robinson v. State, the supreme court recommended the following self-defense instruction:
      The court instructs the jury that to make a killing justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the defendant acts.

        Robinson v. State, 434 So.2d 206, 207 (Miss. 1983) (overruled by Flowers v. State, 473 So.2d 164, 165 (Miss.1985) to extent that it merely criticized instead of condemned the instruction it replaced).

      . See Reddix v. State, 731 So.2d 591, 595 (¶ 20) (Miss.1999) (holding the Robinson instruction given, "while fine for the State, is not sufficient as a neutral self defense instruction” because it "failed to notify the jury it was bound to acquit [the defendant] if it found that he acted in self defense”).

      . Jury instruction S-3A reads:
      The Court instructs the Jury that Wilbert Donnell Crook has been charged with the crime of Aggravated Assault.
      If you find from the evidence beyond a reasonable doubt that:
      1. Wilbert Donnell Crook, on or about July 18, 2009, in Forrest County, Mississippi;
      2. unlawfully, feloniously, willfully, and knowingly caused bodily injury to Gemile Carter, with a deadly weapon, to wit: a box cutter, but stabbing Gemile Carter with a box cutter; and
      3. that such behavior was not done in necessary self defense, accident, or misfortune;

      then you shall find Wilbert Donnell Crook, guilty of Aggravated Assault.

        If the State has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find Wilbert Donnell Crook, not guilty of Aggravated Assault.

      (Emphasis added). Jury instruction D-5 further instructed:
      The Court instructs the jury that an assault shall be excusable when committed by accident or misfortune, in the heat of passion, upon any sudden and sufficient provocation.
      If you find from the evidence that Wilbert Crook by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, injured Gemile Carter with a box cutter during an altercation on July 18, 2009, then you must find Wilbert Crook not guilty.

      . Maye's defense-of-others justification, which is not at issue in this case, was also a cited reason the supreme court found reversible error. Maye, 49 So.3d at 1130-31 (¶¶ 10-14). Maye's fourteen-month-old daughter was present when he shot the officer whom he allegedly mistakenly believed was an intruder. Id. at 1131 (¶ 14). The supreme court held Maye was entitled to a defense-of-others instruction, and neither of the given self-defense instructions "addressed Maye’s asserted self-defense theory to include a ‘defense-of-others’ rationale.” Id. at 1130 (¶11). Because refused instructions D-8 and D-9 addressed defense of others — and because they were correct statements of the law — the supreme court held the refusal of these instructions was reversible error. Id. at 1131-32 (¶¶ 14-19).

      . Miller found jury instruction D-7 did not properly set out the law of self-defense, but did not elaborate — the issue being whether to grant the defense the opportunity to amend the instruction when no other self-defense instruction was presented to the jury. See Miller, 733 So.2d at 848 (¶ 5). In Booker, the State originally objected to the defense’s proffered instruction D-3 because it improperly commented on the evidence; so, the defense revised the instruction. But the revised instruction still contained the "cool, calm light” language. Booker, 64 So.3d at 996 (¶¶ 19-20). Hearing no objections, the trial court gave the amended instruction. Id. at (¶ 20). On appeal, Defendant Booker claimed reversible error in the revision of the original proffered instruction, even though he had agreed to it. Id. at (¶ 21). This Court agreed with the trial court that the original instruction improperly commented on the evidence, and we found no error in its refusal. Id. We did not discuss the language at issue here. See id.


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    Wade Lee TOWNSEND, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01190-COA.
    Court of Appeals of Mississippi.
    April 17, 2012.
    Rehearing Denied Jan. 15, 2013.

      Edmund J. Phillips Jr., Newton, P. Shawn Harris, Forest, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On June 10, 2010, a jury convicted Wade Lee Townsend of first-degree arson. The Scott County Circuit Court sentenced Townsend to six years in the custody of the Mississippi Department of Corrections with three years to serve, three years suspended, and five years of post-release supervision. At the close of the evidence, Townsend moved for a directed verdict, which the circuit court denied. On July 8, 2010, Townsend filed a motion for a new trial, which the circuit court also denied.

¶2. Feeling aggrieved, Townsend appeals and argues that the circuit court erred by: (1) denying his motion for a directed verdict and for a new trial, (2) denying his request for a peremptory instruction, (3) admitting his police statement into evidence, and (4) refusing to allow Larry Crimm to testify at the suppression hearing.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. On April 4, 2009, firefighters responded to a house fire in Scott County. Once on the scene, they noticed smoke rising from the rear of the home. Firefighters extinguished the fire within ten minutes of their arrival. The fire caused approximately $5,500 worth of damage.

¶ 5. At the time of the fire, Townsend was renting the home from Crimm. Townsend later gave a written statement to Captain Willie Anderson, an investigator with the Scott County Sheriff’s Office. In his statement, Townsend explained that he had gotten mad and had “held a Bic lighter by the bottom of the house.” Townsend claimed that once the fire started, he “put it out” and “went inside to go to bed.” According to Townsend, when he woke up, the house was on fire. He attempted to extinguish the fire, but when he could not, he called the fire department. At the suppression hearing, Townsend testified that his written statement was involuntary because Captain Anderson threatened to send him to jail if he did not confess to arson.

¶ 6. Jason Tillman, the fire chief for the City of Forest Fire Department, testified that Townsend gave him a different statement on the day of the fire. According to Chief Tillman, Townsend said that he had been lying in bed watching television and had fallen asleep. When he awoke, his eyes and nose were burning because of smoke. Townsend then claimed that he went outside, discovered the fire at the rear of the house, tried but failed to extinguish it, and then called 911. During his inspection of the home on the day of the fire, Chief Tillman found a working smoke detector lying on Townsend’s porch. Chief Tillman further testified that he did not find a “source of heat to start a fire”; therefore, he suspected arson.

¶ 7. Captain Anderson testified that Townsend voluntarily gave his written statement after an interview that lasted three-and-one-half hours. Captain Anderson also testified that he and Chief Tillman observed what they believed to be the point of origin for the fire and determined that the fire did not originate in the house’s wiring. However, neither Captain Anderson nor Chief Tillman found an ac-celerant at the scene.

¶ 8. Captain Anderson testified that Townsend initially stated that Townsend believed that his estranged wife, Chauntay Townsend, had started the fire. However, when she was eliminated as a suspect, Townsend became the prime suspect. Captain Anderson testified that he did not coerce Townsend into giving a statement and that Townsend had voluntarily waived his Miranda rights.

¶ 9. Cindy Harris, Townsend’s girlfriend at the time of the fire, testified that she accompanied Townsend to the police department on May 5, 2009, when he gave his statement to Captain Anderson. Harris testified that she saw Captain Anderson and Townsend talking outside of the police department but that she was not allowed to talk to Townsend until after he had given his statement. Harris testified that Townsend never said that Captain Anderson had forced him to confess.

¶ 10. At trial, Crimm testified that he knew Townsend before Townsend started renting the house from him. Crimm stated that he did not learn that the police suspected that Townsend had started the fire until several months after the fire. Crimm also testified that while he knew nothing about the circumstances under which Townsend’s statement was given, he was at the police station when Captain Anderson arrested Townsend. Although Townsend attempted to call Crimm as a witness during the suppression hearing, the circuit court ruled that his testimony was irrelevant as to the issue of whether Townsend’s statement was involuntary.

¶ 11. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Directed Verdict, Peremptory Instruction, and New Trial

¶ 12. Townsend argues that the circuit court erred in denying his motion for a directed verdict and for a new trial. He also contends that the circuit court erred in denying his request for a peremptory instruction. Because this contention of error implicates both the sufficiency and weight of the evidence presented at trial, we will address them separately. Further, there is no substantive difference between a request for a peremptory instruction and a motion for a directed verdict. Therefore, we will not address the request for a peremptory instruction separately. A holding that the motion for a directed verdict was properly denied applies with equal force to a motion for a peremptory instruction, as they both implicate the sufficiency of the evidence.

a. Sufficiency of the Evidence

¶ 13. “A motion for ... a directed verdict must set out specific, not general, facts that demonstrate a failure to establish a prima facie case.” Harrison v. McMillan, 828 So.2d 756, 768 (¶21) (Miss.2002) (citations omitted). Furthermore, “[i]n the absence of such specificity, the [circuit] court will not be put in error for overruling [the] same.” Foster v. State, 928 So.2d 873, 879 (¶ 13) (Miss.Ct.App.2005) (quoting Davis v. State, 866 So.2d 1107, 1113 (¶ 21) (Miss.Ct.App.2003)).

¶ 14. In his motion for a directed verdict, Townsend generally stated that the State had “failed to make out a case beyond a reasonable doubt.” He did not raise the specific allegation that he now raises on appeal-that the State failed to prove malice. Thus, this issue is procedurally barred.

¶ 15. Procedural bar notwithstanding, we find no merit to Townsend’s contention that evidence of malice is lacking. When a defendant challenges the sufficiency of the evidence, a conviction will be reversed only if the “facts and inferences ... point in favor of the defendant on any element of the offense with sufficient force that reasonable [persons] could not have found beyond a reasonable doubt that the defendant was guilty.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (internal quotations omitted). The evidence must be viewed in the light most favorable to the State, giving the State the benefit of all “favorable inferences that may be reasonably drawn from the evidence.” Smith v. State, 839 So.2d 489, 495 (¶ 11) (Miss.2003) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)).

¶ 16. Townsend was charged pursuant to Mississippi Code Annotated section 97-17-1 (Rev. 2006), which reads in pertinent part: “Any person who willfully and maliciously sets fire to or burns ... any dwelling house ... shall be guilty of arson in the first degree.... ” Thus, it cannot be disputed that malice is an essential element of arson. However, viewing the evidence in the light most favorable to the State, we hold that the State presented sufficient evidence of malice. The State presented Townsend’s written statement to the police in which he admitted that he had used a Bic lighter to set fire to the house. Additionally, both Captain Anderson and Chief Tillman testified that they were unable to find an alternative cause for the fire. Furthermore, the origin of the fire was at the exact spot where Townsend said he had held the lighter to the house. Accordingly, we affirm the circuit court’s denial of Townsend’s motion for a directed verdict and his request for a peremptory instruction since there was sufficient evidence to support the arson conviction.

b. Weight of the Evidence

¶ 17. “A motion for a new trial challenges the weight of the evidence.” Smith v. State, 925 So.2d 825, 832 (¶ 16) (Miss.2006) (quoting Howell v. State, 860 So.2d 704, 764 (¶ 212) (Miss.2003)). A circuit court’s decision to deny a motion for a new trial is reviewed for abuse of discretion. Id. A new trial is warranted only if the verdict is “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18) (citation omitted). Furthermore, a new trial will only be granted “in exceptional cases in which the evidence preponderates heavily against the verdict.” Taylor v. State, 62 So.3d 962, 967 (¶ 21) (Miss.2011) (quoting Dilworth v. State, 909 So.2d 731, 737 (¶ 21) (Miss.2005)).

¶ 18. The jury found that Townsend had willfully and maliciously set fire to his house. In his statement to Captain Anderson, Townsend said that he had set fire to the house with a lighter because he had gotten angry. Both Captain Anderson and Chief Tillman testified that no acceler-ant was used to start the fire and that the fire’s point of origin was where Townsend stated that he had held the lighter to the bottom of the house. Additionally, Chief Tillman testified that he found a working smoke detector on Townsend’s porch-a discovery consistent with the jury’s verdict. Our review of the record does not reveal evidence that preponderates so heavily against the verdict that the circuit court’s failure to grant a new trial resulted in an unconscionable injustice. This assignment of error is without merit.

2. Written Police Statement

¶ 19. Townsend argues that the circuit court erred in admitting his written police statement into evidence. Townsend testified that the statement was the product of coercion and, thus, involuntary.

¶20. An appellate court will reverse a circuit court’s ruling on a motion to suppress “if the incorrect legal principle was applied; if there was no substantial evidence to support a voluntary, knowing, and intelligent waiver of Miranda rights; and if the denial was a result of manifest error.” Redmond v. State, 66 So.3d 107, 111 (¶ 12) (Miss.2011) (quoting Scott v. State, 8 So.3d 855, 861 (¶ 22) (Miss.2008)). “The [circuit court] must determine beyond a reasonable doubt that a confession was voluntary and knowing and that the defendant was given his Miranda rights prior to any custodial interrogation.” Id. (quoting Scott, 8 So.3d at 861 (¶ 23)). The State carries the burden of proving that a confession is voluntary. Id. The State’s burden is met by presenting “the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward.” Scott, 8 So.3d at 861 (¶ 24) (quoting Bell v. State, 963 So.2d 1124, 1134 (¶ 26) (Miss.2007)). If the accused offers testimony to the contrary, the State must offer the testimony of the officers who witnessed the confession. Id. An appellate court “will not reverse the [circuit] court on conflicting testimony as to whether coercion was used to obtain a confession.” Id. at (¶ 25) (quoting Bell, 963 So.2d at 1134 (¶ 26)).

¶ 21. Townsend’s signed Miranda waiver and signed statement were admitted into evidence. Additionally, Captain Anderson, the officer who read Townsend his Miranda rights and took his statement, testified that he did not threaten or promise a reward in exchange for Townsend’s statement. Townsend testified at the suppression hearing that Captain Anderson had promised him that he would not be prosecuted and that he could go to work if he confessed. Harris testified that Townsend never told her that his written statement was untruthful or involuntary.

¶ 22. Townsend’s signed Miranda waiver, his signed written statement, and Captain Anderson’s testimony all support a finding that Townsend gave his written statement voluntarily. Accordingly, we hold that the circuit court did not abuse its discretion in denying Townsend’s motion to suppress his statement. This issue is without merit.

3. Crimm’s Testimony

¶28. Townsend argues that the circuit court erred in refusing to allow Crimm to testify during the suppression hearing. We cannot examine the merits of this issue because Townsend failed to properly preserve this issue for appeal. “[W]hen testimony is excluded at trial, a record must be made of the proffered testimony in order to preserve the point for appeal.” Abernathy v. State, 30 So.3d 320, 325 (¶ 19) (Miss.2010) (quoting Murray v. State, 849 So.2d 1281, 1289 (¶ 32) (Miss.2003)).

¶ 24. In this case, there was no proffer of Crimm’s testimony; thus, this contention of error was not properly preserved for appeal. Without a proffer, the record is insufficient to determine whether Crimm’s testimony would have been relevant. Therefore, we are unable to hold the circuit court in error. This issue is without merit.

¶ 25. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT OF CONVICTION OF FIRST-DEGREE ARSON AND SENTENCE OF SIX YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THREE YEARS TO SERVE, THREE YEARS SUSPENDED, AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.

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

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


author: LEE, C.J.,

text:
    William HOWARD a/k/a William C. Howard a/k/a William Christopher Howard, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CA-00729-COA.
    Court of Appeals of Mississippi.
    June 5, 2012.
    Rehearing denied Oct. 9, 2012.
    Certiorari Denied Jan. 17, 2013.

      James H. Powell III, Durant, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, C.J., ISHEE and FAIR, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On April 28, 2008, William Howard pleaded guilty in the Oktibbeha County Circuit Court to felony driving under the influence (DUI), third offense. At the time of his third offense, Howard was twenty years old. Howard was sentenced to five years in the custody of the Mississippi Department of Corrections, with the first year to be served on house arrest followed by supervised probation for four years upon successful completion of house arrest. Howard was also ordered to pay a $2,000 fine. At the time of filing his motion for post-conviction relief, Howard had successfully completed his year of house arrest.

¶2. Howard’s first DUI conviction occurred on July 21, 2004, in Holmes County, Mississippi. He was seventeen years old at the time. Howard pleaded guilty, and he was ordered to pay a $178.50 assessment. His fine was suspended. Howard’s blood-alcohol concentration (BAC) at the time of arrest was .143%. Howard’s second DUI conviction, also via guilty plea, occurred on September 26, 2006, in Holmes County. Howard was nineteen years old at the time. The record reflects Howard’s BAC was .023% at the time of arrest. Howard was sentenced to serve five days in the Holmes County jail and perform ten days of community service. Howard was also ordered to pay a $801 fíne and a $236.50 assessment.

¶ 3. Howard filed a motion for post-conviction relief asserting, among other things, that his conviction and sentence for felony DUI, third offense, violated Mississippi Code Annotated section 63-11-30 (Supp.2011). The trial court dismissed Howard’s motion for post-conviction relief. Howard now appeals.

STANDARD OF REVIEW

¶ 4. A trial court’s dismissal of a motion for post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Evans v. State, 75 So.3d 1119, 1120 (¶ 4) (Miss.Ct.App.2011). However, when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

¶ 5. In his only issue on appeal, Howard contends his conviction and sentence for the felony DUI, third offense, violated section 63-11-30. Specifically, Howard argues his second DUI conviction should not have been used as a prior conviction for his felony DUI because the second conviction fell under section 63-11-30(3)(a), which is the Zero Tolerance for Minors section of DUI sentencing provisions.

¶ 6. Section 63-ll-30(3)(a) “shall apply” when section 63-11-30(1) is violated by a person who is under twenty-one years of age and has a BAC of less than .08% but greater than .02% or more. At the time of his second DUI conviction, Howard was under twenty-one years old and his BAC was .023%. It appears Howard should have been sentenced under the Zero Tolerance for Minors subsection. However, there is nothing in the statute to indicate that a conviction under the Zero Tolerance for Minors subsection cannot be used as a sentence enhancement for subsequent DUI convictions, regardless of whether the subsequent convictions fall under the Zero Tolerance subsection. In fact section 63-11-30(8) states the following:

For the purposes of determining how to impose the sentence for a second, third or subsequent conviction under this section, the indictment shall not be required to enumerate previous convictions. It shall only be necessary that the indictment state the number of times that the defendant has been convicted and sentenced within the past five (5) years under this section to determine if an enhanced penalty shall be imposed. The amount of fine and imprisonment imposed in previous convictions shall not be considered in calculating offenses to determine a second, third or subsequent offense of this section.

¶ 7. The trial court found Howard’s issues to be without merit and dismissed the motion for post-conviction relief. The trial court relied upon Arnold v. State, 809 So.2d 753, 757 (¶ 11) (Miss.Ct.App.2002), which states that “any third conviction of the crime of driving under the influence under ... [section] 63-11-30(1), may be sentenced as a felony charge.” Although Arnold did not involve the Zero Tolerance subsection, this Court stated a defendant merely has to be convicted of DUI three times within five years, without any further stipulations. Id. We find Howard’s arguments to be without merit, and we affirm the trial court’s decision to dismiss Howard’s motion for post-conviction relief.

¶ 8. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: BARNES, J.,

text:
    MISSISSIPPI FORESTRY COMMISSION, Appellant v. Stephen OGLESBY, Appellee.
    No. 2010-SA-01602-COA.
    Court of Appeals of Mississippi.
    June 19, 2012.
    Rehearing Denied Oct. 23, 2012.
    Certiorari Denied Jan. 17, 2013.

      Richard A. Compere, Jackson, attorney for appellant.
    James D. Bell, Sarah Ann Ellis, Jackson, attorneys for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. The Mississippi Forestry Commission (MFC) terminated Stephen Oglesby, a licensed professional forester in Franklin County, Mississippi, for insubordination. Oglesby appealed to the Mississippi Employee Appeals Board (EAB), where the hearing officer upheld his termination. He appealed to the full EAB, which also affirmed his termination. Oglesby next appealed to the Franklin County Circuit Court, which reversed the EAB’s decision, stating Oglesby’s termination was not supported by substantial evidence. The MFC appealed to this Court. We find the EAB’s decision was supported by substantial evidence; accordingly, we reverse the circuit court’s decision and render judgment, thereby reinstating the EAB’s decision to terminate Oglesby.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Oglesby was employed as a Forester II by the MFC. He had worked for the MFC in Franklin County for over twenty-five years. His primary responsibility was management of sixteenth section trust lands, which produce revenue for the Franklin County School System. The conflict between Oglesby and the MFC originated with the MFC’s change to a more aggressive timber management plan for sixteenth section lands in order to obtain higher, more sustained timber revenue for the schools. The new approach called for moving from a sixty-year rotation to a thirty-five year rotation, meaning timber stands would be thinned, and older, high risk timber would be harvested. At a meeting in June 2008, MFC’s leadership explained the rationale behind the new management plan and instructed its foresters, including Oglesby, to -write new timber management plans consistent with the new strategy. Franklin County had some very old timber that would require aggressive harvesting and immediate, significant timber sales. On October 1, 2008, Oglesby submitted his timber management plan to Randy Chapin, the MFC’s district forester and Oglesby’s immediate supervisor.

¶ 3. On October 31, 2008, in a letter entitled “Notice of Reprimands and Employer/Employee Conference,” Chapin charged Oglesby with three separate “Group Two Offenses” of insubordination for refusing to follow the agency’s instructions. In the first instance, after the June 2008 meeting, Chapin learned that Oglesby was resisting and opposing the agency’s plan of moving to the thirty-five year rotation. Chapin spoke with Oglesby on the telephone in the third week of September 2008, reminding him that “before he turned in his final version of the plan,” he needed “to include all the old timber in Franklin County.” Chapin testified that when Oglesby turned in his plan, he did not comply with these instructions, leaving approximately 3,000 acres of old timber unharvested for the next ten years. However, Chapin admitted Oglesby’s plan was slightly more aggressive and included the harvesting of some of the old timber. Chapin estimated that Oglesby’s plan would have provided a revenue in the first ten years of approximately $8 million, whereas the agency’s new plan would generate approximately $15 million in revenue. Chapin testified that he evaluated Oglesby’s plan, and it provided for a sixty-year rotation, not thirty-five. The MFC identifies this as the first instance of Oglesby’s insubordination.

¶ 4. According to the MFC, the second instance of insubordination began when Chapin sent an email to Oglesby on October 16, 2008, instructing Oglesby to revise the management plan and comply with the instructions that had been previously given to him because his plan was not acceptable. Chapin specifically noted that Ogles-by’s plan had 3,000 acres of old timber untouched during the next ten years. Oglesby responded via email stating that some of the new plan’s “added cuts are ok, just not all, for one reason or another.” He also stated that the new plan was “not even a thirty-year rotation,” and expressed his concern that “for many years there would be no revenue to [the] school.” Oglesby stated that he would look over the plan more closely that day and get back with Chapin. On October 22, 2008, Chapin testified that Oglesby called and stated he would not comply with the directions in the October 16 email, and to take his name off the plan. The MFC claims this action constituted the second instance of insubordination.

¶ 5. The MFC contends the third instance of insubordination occurred on October 23, 2008, when, at Chapin’s request, Oglesby met with him; the State Forester (MFC’s executive director), Charlie Morgan; and Stuart Sellers. Morgan explained to Oglesby why he wanted to make the change in the MFC’s management plan, moving towards a thirty-five year rotation. Morgan testified that he was met with “pretty strong resistence” by Oglesby, who showed a “total lack of respect for authority or for business”— Oglesby ground his teeth and shook his head as Morgan was speaking with him at the meeting. Morgan also testified that Oglesby had been “actively engaged in communication with the Franklin County School Board in advising [it] that the MFC’s timber management plan should not be approved or accepted.” However, the school superintendent testified that while Oglesby expressed professional concern and reluctance about the new plan, he never told the school board it should refuse to go along with it.

¶ 6. In November 2008, Morgan suspended Oglesby, putting him on administrative leave with pay. In a letter to Chapin dated November 17, 2008, Oglesby responded to the accusations, denying any insubordination. Regarding the first instance, Oglesby claimed that in the summer of 2008, there was just one meeting, not “several,” as Chapin had stated, where Morgan and Tucker discussed a more aggressive approach to timber management, but “no details were provided and no definite plan was outlined.” Oglesby denied that he was ordered to include specific timber sales in that plan and claimed that in response to this meeting, he prepared a plan that provided a “more aggressive” approach.

¶ 7. Regarding the second offense, Oglesby claimed Chapin sent him revisions to his plan. These revisions had never been discussed with Oglesby. Therefore, he called Chapin on October 22 to discuss them. Oglesby asked Chapin to remove his name from the new management plan with the proposed revisions because in Oglesby’s professional opinion the proposal was “not based on sound forestry management practices” and therefore was not in the best interest of the lands or the school district. Oglesby agreed he “would do the work if [the plan was] approved.” He also claimed he did not refuse to comply with the directions of his superiors “except to the extent that those instructions required [him] to violate or attempt ... to violate ... the Code of Ethics and [his] own common sense and knowledge of the properties and timber in question.”

¶ 8. Finally, regarding the third occasion of insubordination, Oglesby claimed that he listened carefully to the rationales of Morgan, Chapin, and Sellers at the October 28 meeting, but Oglesby “was not convinced” on the propriety of the new plan and expressed his professional concerns. However, he claims he never refused to “implement” the MFC’s plan, but he did request that someone else sign off on the plan. At the end of this meeting, the MFC took Oglesby’s work computer, which contained the computer program for the timber plan.

¶ 9. On November 18, 2008, Oglesby responded to the charges in an employer/employee conference before a hearing officer designated by the State Forester. Oglesby was present and represented by counsel. On December 12, 2008, Morgan decided to terminate Oglesby, and Oglesby appealed to the EAB. In March 2009, Oglesby’s case was heard by Hearing Officer Ingrid Dave Williams, and the parties were given the opportunity to examine witnesses and present evidence. Chapin and Morgan testified for the MFC. Testifying on Oglesby’s behalf were Clayton Fleming, Superintendent of the Franklin County Schools; Sidney Boteler, a professional forester; Oglesby’s wife; and Oglesby himself. In August 2009, Hearing Officer Williams issued an order upholding Oglesby’s termination. In January 2010, Oglesby appealed to the full Board, which affirmed his termination. Oglesby then appealed ■ to the Franklin County Circuit Court, which reversed the Board, finding there was not substantial evidence to support the termination, and the matter was more of a disagreement of professional opinions than insubordination. The MFC timely appealed to this Court, arguing that the circuit court ignored substantial evidence in the record, failed to apply the full definition of “insubordination,” improperly reweighed the evidence, and failed to give deference to certain statutory authority. In his brief, Oglesby also raises two additional reasons the circuit court could have reversed the EAB’s decision: the EAB failed to apply the correct burden of proof, and the MFC failed to follow the Mississippi State Employee Handbook.

STANDARD OF REVIEW

¶ 10. The decision of an employee appeals board will be upheld upon judicial review unless it is: “(a) [n]ot supported by substantial evidence; (b) [arbitrary or capricious; or (c) [i]n violation of some statutory or constitutional right of the employee.” Pannell v. Tombigbee River Valley Water Mgmt. Dist., 909 So.2d 1115, 1120 (¶ 11) (Miss.2005) (quoting Miss.Code Ann. § 25-9-182 (Rev. 2010)) (citation omitted). “These factors ... are the only grounds for overturning an agency’s action; otherwise the agency’s determination must remain undisturbed.” Id. (quoting Miss. Transp. Comm’n v. Anson, 879 So.2d 958, 963 (¶ 13) (Miss.2004)).

¶ 11. In our review, this Court does not act as an initial fact-finder. “We determine whether the agency could properly have evaluated the contested evidence in a manner that supports the agency decision.” Miss. Dept. of Corr. v. Harris, 831 So.2d 1190, 1192 (¶ 6) (Miss.Ct.App.2002) (citing Miss. Pub. Serv. Comm’n v. Merchants Truck Line, Inc., 598 So.2d 778, 782 (Miss.1992)). The reviewing court “must often determine whether a circuit court has exceeded its authority in overturning an agency action.” Pannell, 909 So.2d at 1120 (¶ 11). We note “a rebuttable presumption exists in favor of the action of the agency, and the burden of proof is on the party challenging an agency’s action.” Id. (quoting Pub. Employees’ Ret. Sys. v. Shurden, 822 So.2d 258, 263 (¶ 13) (Miss.2002)). “Where that authority has been exceeded, [the reviewing court] will not hesitate to reverse and reinstate the agency’s order.” Id. (citing Miss. Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993)).

ANALYSIS

I. SUBSTANTIAL EVIDENCE

¶ 12. The MFC argues that the EAB’s ruling, which affirmed the agency’s termination of Oglesby for insubordination, was supported by substantial evidence in the record, and the circuit court erred in overlooking this evidence. We agree.

¶ 13. The circuit court, which had the same standard of review for the EAB’s decision as this Court does now, stated that the “essential question” for the court was whether “there was substantial evidence that Oglesby was actually insubordinate on his job.” However, as the MFC notes, the proper question for the reviewing court is whether there is sufficient evidence to support the EAB’s finding that Oglesby was insubordinate. In its September 2010 order reversing the EAB’s decision, the circuit court ruled that there was not evidence of actual insubordination in the record; instead, the evidence showed Oglesby was willing to abide by the new policy. The only evidence of outright refusal was Oglesby’s refusal to sign off on the plan for “professional ethical reasons”; therefore, the circuit court concluded the termination for insubordination was not supported by substantial evidence.

¶ 14. “Substantial evidence means more than a scintilla or a suspicion.” Miss. State Dep’t of Health v. Natchez Cmty. Hosp., 743 So.2d 973, 977 (¶ 12) (Miss.1999). It is such evidence that “reasonable minds might accept as adequate to support a conclusion.” Delta CMI v. Speck, 586 So.2d 768, 773 (Miss.1991). If an administrative agency’s decision is based on substantial evidence, it is not arbitrary and capricious. Pannell, 909 So.2d at 1122 (¶ 21) (citing Anson, 879 So.2d at 964 (¶ 17)). The definition of “insubordination” the MFC used in its October 2008 notice of reprimands letter, which is found in the State Personnel Board Policy and Procedures Manual, “include[s], but [is] not limited to, resisting management directives through actions and/or verbal exchange, and/or failure or refusal to follow supervisor’s instructions, perform assigned work, or otherwise comply with applicable established written policy.”

¶ 15. The full EAB upheld the hearing officer’s decision, which found “Oglesby did refuse to follow management directives on three separate occasions cited in the ‘Notice of Reprimands’ ” letter of October 31, 2008. These occasions were the basis of the three Group Two offenses. We find each of these instances was supported by substantial evidence from the record.

¶ 16. The first charge of insubordination was Oglesby resisting and failing to submit a timber management plan that included the more aggressive timber rotation in sixteenth section lands, which had been decided upon by MFC’s leadership in the summer of 2008 and presented to the service foresters, including Oglesby, in June 2008. Chapin testified Oglesby’s initial plan did not follow the MFC’s instructions and did not include approximately 3,000 acres of the old timber in Franklin County. Further, it is undisputed that Oglesby’s professional opinion was in opposition to the MFC’s new plan; he thought it was overly aggressive and not in the best interest of the Franklin County School District. In his defense to this charge, Oglesby contends that he received only limited instructions to fashion a “more aggressive” plan that moved toward a thirty-five year instead of a sixty year rotation, and he did just that. Yet substantial evidence shows Oglesby’s initial plan did not go nearly far enough in harvesting timber, and he was aware of the more aggressive direction the agency was going with the new timber management strategy-

¶ 17. The second instance of insubordination was Oglesby fading to revise his plan to include certain timber sales, including the 3,000 acres of older timber, after Chapin had told him in an email dated October 16, 2008, to include these sales. Chapin testified Oglesby called him October 22 and stated that he would not comply with Chapin’s instructions to revise the plan. Also, Chapin stated Oglesby wanted his name off the plan. In response to this charge, Oglesby stated that he expressed “professional concern about specific sales,” but did not refuse to comply with Chapin’s orders regarding revisions. Oglesby also claims he agreed to implement the plan, but refused to sign off on it personally. However, this Court has found refusal to sign a required document constitutes insubordination. In Spears v. Mississippi Department of Wildlife, Fisheries & Parks, 997 So.2d 946, 952-53 (¶¶ 31, 35) (Miss.Ct.App.2008), this Court held that refusal to sign a required document — a performance appraisal review — was considered an act of insubordination. Oglesby also requested his name be removed from the face of the document. In spite of the conflicting evidence on whether Oglesby agreed to follow Chapin’s instructions regarding the plan’s revisions, there is substantial evidence of insubordination. There is evidence that Oglesby not only refused to sign off on the plan, but that he also refused to draft the plan according to his superiors’ instructions.

¶ 18. Finally, the third incident of insubordination occurred during the meeting between State Forester Morgan, Chapin, and Oglesby on October 23, 2008, where Morgan tried to impress upon Oglesby the importance of his compliance with the new management plan to increase timber sales. Morgan testified Oglesby was resistant to the new plan, refused to revise his plan, and refused to sign a revised plan. Further, Morgan testified that Oglesby’s behavior during this meeting showed a lack of respect for authority. Although testimony conflicted, Morgan determined that Oglesby had been “actively engaged in communication” with the Franklin County School Board criticizing the new plan. Nonetheless, School Superintendent Fleming testified that while Oglesby had expressed professional concerns about the new strategy, he had not told the school board to disagree with it. Oglesby responded that it would be improper to terminate him for refusing to accept the rationale of his superiors. However, not only did he disagree with the rationale of his superiors, but he did not follow their instructions or perform his required duties.

¶ 19. Further, we are not persuaded by Oglesby’s argument that signing the new plan would violate “his professional code of ethics.” In his brief, Oglesby has not cited any part of this code to support his position, and we find nothing in the registered forester’s code of ethics that states putting one’s name on a document means complete agreement with the document’s rationale. In oral argument, counsel for Oglesby also admitted that there was nothing in this code that stated it would be unethical to sign the plan. Instead, in his written statement of November 17, 2008, in response to the charges against him, Oglesby indicated that he alone knew what was best for the timber of Franklin County. He stated: “In my mind I firmly believe that no one knows these lands as well as I do because of my years of involvement with them.” He explained that he contacted Chapin because “the proposed timber sales that [he] was requested to include would in fact violate the Code of Ethics, [and] would not be in the best interest of those timber stands” or the Franklin County School District, the MFC, or the State. He goes on to explain that he complied with the instructions of his superiors, “except to the extent that those instructions required [him] to violate ... the Code of Ethics and [his] own common sense and knowledge of the properties and timber in question.” (Emphasis added).

¶ 20. However, this attitude is unmistakably insubordinate because Oglesby indicated that he knew better than his superiors, and was in direct opposition to their instructions. Oglesby’s view of professional ethics appears to be that whatever he thinks is the right direction for the timber harvesting must be implemented, or he is acting unethically. Thus, he could not attach his name “to an inappropriate proposal that was not based on sound forestry management practices as I understand and appreciate them....” Indeed, the MFC referred to Oglesby’s ethics argument as a “smokescreen” in oral argument before this Court. Even though he had been working as a forester in this area for over twenty-five years, Oglesby’s ultimate job was to prepare the plan in accordance with the instructions of his superiors, whether he agreed with those instructions or not.

¶ 21. There is also evidence that Ogles-by delayed in his refusal to follow instructions. After the June 2008 meeting, it was not until October 2008 that Oglesby turned in only a slightly more aggressive plan, which did not comply with the MFC’s instructions. On October 16, 2008, Oglesby was told to redo the plan to comply with the instructions, but he refused. On October 31 he was charged with insubordination. State Forester Morgan even met with Oglesby to explain why the change to a thirty-five year rotation needed to be made. Very few employers would go to such lengths to get an employee “on board” with a project; however, Oglesby continued to express his disagreement with the plan and refused to sign the plan.

¶ 22. Since review of an order from an administrative agency’s proceedings is limited to the record and findings of the agency, it follows that the reviewing court “may neither substitute its own judgment for that of [the] administrative agency which rendered the decision nor reweigh the facts of the case.” Anson, 879 So.2d at 964 (¶ 18) (citing Miss. Employment Sec. Comm’n v. Pulphus, 538 So.2d 770, 772 (Miss.1989); Shurden, 822 So.2d at 263 (¶ 13)). The circuit court reinterpreted the entire situation as a disagreement of professional opinions between Oglesby and the MFC rather than insubordination. The circuit court noted that timber management is an “inexact science” where there is “room for legitimate and sincere disagreement among qualified foresters” regarding the best timber management plan. While this may be so, we find the circuit court erred in substituting its opinion of the evidence for that of the EAB, which showed Oglesby continued to voice his disagreement and failed to prepare a plan in accord with the instructions of his supervisors. This evidence could certainly be considered insubordination by the fact-finder.

¶ 23. We cannot find the EAB erred in upholding Oglesby’s termination for insubordination. In Anson, the Mississippi Supreme Court stated that the EAB is empowered to accept the testimony of one witness over another. Anson, 879 So.2d at 964 (¶ 17). Additionally, even in the face of conflicting testimony, we are bound by our limited standard of review. This Court does not act as an initial fact-finder; the agency’s findings are presumed to be correct. Miss. Dept. of Corr. v. Harris, 831 So.2d 1190, 1192-93 (¶¶ 6, 10) (Miss.Ct.App.2002). Oglesby failed to meet his burden of proving otherwise. See id. at (¶ 10) (quoting Richmond v. Miss. Dep’t of Human Servs., 745 So.2d 254, 258 (¶ 14) (Miss.1999)). There is substantial evidence in the record to support the EAB’s finding of three instances of insubordination.

II. OGLESBY’S ISSUES

¶ 24. Oglesby raises two more reasons the circuit court could have reversed the EAB’s decision: the EAB failed to apply the correct burden of proof, and the MFC failed to follow the State Employee Handbook. We are not persuaded by either argument.

A. Burden of Proof

¶ 25. Oglesby claims the EAB applied the incorrect burden of proof-that Oglesby must prove the agency’s decision was “arbitrary, capricious, or against the overwhelming weight of the evidence.” Ogles-by contends that even though the circuit court did not address this issue, the decision of the EAB is erroneous as a matter of law because the standard the EAB used violates Mississippi Code Annotated section 25-9-127(1) (Rev. 2010). This statute provides that on appeal, an employee who receives a notice of dismissal is “required to furnish evidence that the reasons stated in the notice of dismissal ... are not true or are not sufficient grounds for the action taken.” Additionally, Oglesby states that EAB Administrative Rule 21(C) sets forth the proper burden of proof, which is the same standard as that found in section 25-9-127(1). Oglesby claims that he met his burden of proof because the evidence demonstrated that the reasons listed in the notice of dismissal letter of October 2008 were not true.

¶ 26. The EAB hearing officer’s order of August 2008 states that the EAB rule is that “the appealing party shall have the burden of proving that the action taken against the employee is arbitrary, capricious, against the overwhelming weight of the evidence and merits the relief requested.” The EAB hearing officer found that the MFC’s actions in terminating Oglesby were not “arbitrary, capricious, or against the overwhelming weight of the evidence,” and Oglesby failed to meet his burden of proof. In its order of January 2010, the full EAB found that there was sufficient evidence to support the action of the MFC.

¶ 27. In response to Oglesby’s argument, the MFC points out that Oglesby failed to note while an employee must prove the reasons for the dismissal are not true, the employee must also prove that the action taken against the employee is arbitrary, capricious, against the overwhelming weight of the evidence, and merits the relief requested under EAB Administrative Rule 21(B). In support, the MFC cites Pannell, where the supreme court found the circuit court properly reviewed the proceedings under both EAB Rule 21(B) and (C). Pannell, 909 So.2d at 1122-23 (¶ 22). We find no error with the burden of proof used in the EAB hearing officer’s August 2008 order. Oglesby’s issue is without merit.

B. State Employee Handbook

¶ 28. Oglesby also argues that the circuit court should have found the MFC violated the Mississippi State Employee Handbook (Handbook).

¶ 29. First, Oglesby complains that if any disciplinary action was to be taken against him, it should have been applied in steps, in accordance with the rules in the Handbook for Group Two offenses, and not simultaneously. Additionally, Oglesby claims his termination after a twenty-five year career as a forester, without prior reprimands, was “inappropriate and unprofessional.”

¶ 30. Oglesby does not cite any authority for his first argument. In response, the MFC cites Young v. Mississippi State Tax Commission, 635 So.2d 869, 871 (Miss.1994), where an employee was charged at one time with four incidents of Group Two offenses for insubordination. On appeal, the employee argued the agency, in terminating him, failed to follow the published guidelines and rules. Id. at 872. The Young court did not find the application of the charges in error, and cited the State Personnel Board Policy Manual requiring “the application of disciplinary action in steps of increasing severity ‘whenever practical.’ ” Id. at 872-73. No authority has been cited to us that disciplinary action must be taken in steps. Therefore, we find no merit to Ogleby’s argument.

¶ 31. Second, Oglesby claims that his reprimands violated the Handbook and therefore were “unethical.” In the October 31, 2008 notice of reprimands letter to Oglesby, the MFC stated that “[i]f any of the charges are found to be proper, a decision will be made that could result in possible further discipline, up to and including, suspension, demotion or the termination of your employment....” (Emphasis added.) Oglesby cites the rules in the Handbook providing: “Group Two offenses may be disciplined by written reprimand and/or suspension without pay not to exceed five working days. Accumulation of two Group Two written reprimands within a one-year period may result in demotion or dismissal.” He appears to make the argument that the word “any” in the letter is improper and violates the Handbook rules because one Group Two offense would not warrant his termination.

¶ 32. We find no merit to this argument. The MFC’s October 2008 letter merely puts Oglesby on notice of the possibly consequences and disciplinary actions that may be taken for the offenses.

CONCLUSION

¶ 33. Because there was substantial evidence in the record to support the EAB’s decision, the circuit court erred in reversing the decision of the EAB. We therefore reverse the circuit court’s decision and reinstate the EAB’s decision to terminate Oglesby.

¶ 34. THE JUDGMENT OF THE FRANKLIN COUNTY CIRCUIT COURT IS REVERSED AND RENDERED, AND THE JUDGMENT OF THE MISSISSIPPI EMPLOYEE APPEALS BOARD IS REINSTATED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Sixteenth section trust lands are overseen by the Mississippi Secretary of State’s Office, with timber management under the direction of the MFC, not the service forester. See Miss.Code Ann. § 29 — 3—45(1)(a)—(b) (Rev. 2010).

      . See http://www.spbrez.ms.gov/SPB% 20Doc-uments/SPB/SPB% 20pubs.asp (follow "MSBP Employee Handbook 3/1/10 version” hyperlink).

      . Oglesby argues that the three alleged offenses actually refer to a single event-Ogles-by’s “reluctance” to sign the MFC’s new plan.

      . In his November 2008 letter, Oglesby did cite the following propositions from the Code of Ethics for the Registered Forester, but we fail to see how signing the plan would violate any of them:
      1. I will strive to be accurate in my knowledge of forestry and will disseminate and speak out against the spreading of false or misleading statements concerning forestry.
      2. I will advise only in a worthy and truthful manner refraining from misleading or exaggerated statements concerning what I am preparing to perform.
      3. When participating in a public or private fact-finding session, I will base my testimony on adequate knowledge of the subject, and will not withhold data in order to substantiate my point of view.
      4.I will perform services of only the highest standards and with complete loyalty to my employer or client and will not voluntarily disclose information about the business affairs of my employer or client which the employer desires to keep confidential.
      11. I will obligate myself, without reservation, to utilize all of my forestry knowledge and experience for the use, benefit, and betterment of my fellow man and his environment.
      The entire ethical code includes eleven points, but none support Oglesby’s ethical violation argument. See http://www.cfr.msstate.edu/ borf/codeofethics.asp.

      . EAB Rule 21(B) states: "The appealing party shall have the burden of proving that the action taken against the employee is arbitrary or capricious, not supported by any substantial evidence or in violation of some statutory or constitutional right and merits the relief requested." http://www.spbrez.ms.gov/SPB% 2 ODocuments/SPB/EAB% 20webpage-ñews.pdf (follow "EAB Administrative Rules” hyperlink).

      . EAB Rule 21(C) states: "An appealing party who is a permanent State Service employee and who has by written notice been dismissed or otherwise adversely affected as to his or her compensation or employment status shall be required to furnish evidence that the reasons stated in the notice of such action are not true or are not sufficient grounds for the action taken.” Id.

      . See http://www.spbrez.ms.gov/SPB% 20Doc-uments/SPB/SPB% 20pubs.asp (follow "MSBP Policy and Procedures Manual 10/1/10 version” hyperlink).