author: FAIR, J.,

text:
    Christopher Lamar SMITH a/k/a Christopher Smith a/k/a Christopher L. Smith, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01485-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2013.

      Edmund J. Phillips Jr., Newton, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before ROBERTS, MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Christopher Smith was convicted of aggravated assault and possession of a firearm by a convicted felon. The Nesho-ba County Circuit Court sentenced Smith to serve twenty years for aggravated assault, five years for possession of a firearm, and ten years for the use or display of a firearm in the commission of a felony. Smith appeals arguing that the trial court erred in enhancing his sentence, refusing an attempted-murder instruction, and admitting his confessions. Finding that the jury determined every fact necessary for Smith’s enhancement, that there is no view of the evidence in which Smith is guilty of attempt and not aggravated assault, and that Smith initiated his communications with the police, we affirm.

FACTS

¶ 2. Wearing camouflage and a face mask, Smith approached Nellie Woodward’s carport as she was unloading groceries. He shot her five times and fled the scene. Woodward suffered wounds to the chest, abdomen, hip, and left arm but survived. The next day, the sheriffs department found Smith in the woods about a mile from Woodward’s house. He was still dressed in camouflage.

¶ 3. At trial, Woodward identified Smith as her attacker. She knew him because he was dating her granddaughter. Woodward was able to identify him despite the mask because he had a distinctive tattoo underneath his right eye, which was visible through the mask’s eye hole. David Whitehead, of the Mississippi Crime Lab, testified that there were particles on Smith’s right hand that indicated gunshot residue. And Investigator Ralph Sciple testified that Smith’s boots matched footprints found near Woodward’s carport. Smith did not testify, but he gave three statements to the authorities that were admitted into evidence. In the last statement, Smith confessed.

DISCUSSION

1. Sentence Enhancement

¶ 4. In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the United States Supreme Court stated: “[Ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Smith argues that the jury did not make the required factual findings for the sentence enhancement. Specifically, he contends that the jury never found that he displayed or used a firearm in the commission of a felony.

¶ 5. Initially, Smith faces a procedural bar in raising this point of error because he did not raise it in the trial court. See Brown v. State, 995 So.2d 698, 703 (¶ 21) (Miss.2008). But “[substantial increases in sentence ... implicate due process to such a degree as to avoid procedural bars.” Id. at 703 (¶ 22) (citing Smith v. State, 477 So.2d 191, 195 (Miss.1985)).

¶ 6. Section 97-37-37(2) of the Mississippi Code Annotated (Supp.2012) states: “[A]ny convicted felon who uses or displays a firearm during the commission of any felony shall ... be sentenced to an additional term of imprisonment ... of ten (10) years, to run consecutively....” In Count I the jury found, beyond a reasonable doubt, that Smith used a firearm to commit an aggravated assault. In Count II the jury found, beyond a reasonable doubt, that he was a convicted felon. Smith does not point to any specific element of the statute that was not decided by the jury. Instead, he analogizes his case to Brown v. State, 995 So.2d 698, 704-OS (¶¶ 26-30) (Miss.2008), where a sentence enhancement was vacated because the trial judge, not the jury, decided Brown was within 1,500 feet of a church. Here, the facts are easily distinguishable; every element of the sentence enhancement was contained in the indictment, submitted to the jury, and decided by the jury. We find this issue is without merit. See Mayers v. State, 42 So.3d 33, 45-46 (¶¶ 51-52) (Miss.Ct.App.2010).

¶ 7. We also point out that the recent Mississippi Supreme Court decision Harris v. State, 99 So.3d 169, 174 (¶ 26) (Miss.2012), is not applicable here. In Harris, the defendant was a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007), which required he be sentenced to the maximum sentence of twenty years for aggravated assault. Harris, 99 So.3d at 171 (¶ 9). The court found that the enhancement under section 97-37-37(2) was not available because another provision of law, section 99-19-81, effectively provided a greater minimum sentence. Harris, 99 So.3d at 174 (¶ 26). Smith is not a habitual offender, and no other applicable provision of law provides a greater minimum sentence than ten years. The minimum sentence for aggravated assault under Mississippi Code Annotated section 97-3-7(2) (Supp.2012) is one year.

2. Attempted Murder

¶ 8. Smith argues that the circuit court erred in refusing to submit a jury instruction on attempted murder. Smith’s motivations are obvious — the maximum sentence for attempted murder is ten years, much less than the twenty years Smith received for aggravated assault.

¶ 9. To qualify for a lesser-non-included-offense instruction, Smith must show (1) that the lesser offense arose from the same operative facts and (2) that there is an evidentiary basis in the record for the instruction. Williams v. State, 53 So.3d 734, 740-41 (¶ 32) (Miss.2010). In analyzing the evidentiary-basis prong:

The trial court should grant the instruction unless it can say taking the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser non-included offense (and conversely not guilty of at least one element of the principal charge).

Sheffield v. State, 64 So.3d 529, 533 (¶ 13) (Miss.Ct.App.2011) (quoting Brady v. State, 722 So.2d 151, 161 (¶ 38) (Miss.Ct.App.1998)).

¶ 10. The circuit court correctly noted that the crime of attempted murder would require the State to prove a specific intent element that is not required for aggravated assault. The intent requirement could be met with the assumption of malice inferred from the use of a deadly weapon. See Russell v. State, 497 So.2d 75, 76 (Miss.1986). Thus, both charges could be established by the same evidence. But, “the same evidence that would otherwise have entitled [the defendant] to an attempted murder instruction legally un-dergirds his conviction of aggravated assault.” McGowan v. State, 541 So.2d 1027, 1030 (Miss.1989). There is no view of the evidence under which Smith could be found guilty of attempted murder and not guilty of aggravated assault. Id. This assignment of error fails.

¶ 11. Further, “the [S]tate is under no obligation to prosecute under the statute with the lesser penalty. It may choose to prosecute under either, and so long as the choice is clear and unequivocal the defendant has no right to complain.” Beckham v. State, 556 So.2d 342, 343 (Miss.1990) (quoting Cumbest v. State, 456 So.2d 209, 222 (Miss.1984)). The indictment clearly charged Smith with aggravated assault under section 97~3-7(2)(a) of the Mississippi Code Annotated. There was no ambiguity.

3. Defendant’s Statements

¶ 12. Finally, Smith asserts that the circuit court erred in admitting his second and third statements to Investigator Sci-ple. He argues that these statements were made after his initial appearance and his right to counsel had attached. Because counsel was not present when the statements were given, Smith argues they should have been suppressed.

¶ 13. Smith certainly had a right to counsel at any post-arraignment custodial interrogations. See United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984). An initial hearing signals the beginning of adversarial judicial proceedings and the attachment of the Sixth Amendment. Id. The question then becomes whether Smith validly waived his right to counsel. The State bears the burden of establishing a valid waiver. Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). We note that under Montejo v. Louisiana, 556 U.S. 778, 789-796, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009), post-initial-hearing waivers are no longer presumed to be involuntary.

¶ 14. The flaw in Smith’s argument is that the right to counsel is not violated when the defendant initiates contact with authorities. The constitutional safeguards Smith now seeks to assert only deal with police-initiated interrogations. See Wilcher v. State, 697 So.2d 1123, 1129 (Miss.1997). “Nothing in the Sixth Amendment prevents a suspect ... represented by counsel from voluntarily choosing, on his own, to speak with police.... [T]he Sixth Amendment does not disable a criminal defendant from exercising his free will.” Id. Once the right to counsel attaches, a defendant may not be further interrogated “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Barnes v. State, 30 So.3d 313, 316-17 (¶ 8) (Miss.2010) (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)).

¶ 15. Smith asserts that he did not intend to open communication regarding the charges. He claims he only asked to speak to Investigator Sciple about receiving medical attention, and then “the interrogations were instigated by Sciple.” Thus, it is uncontested that Smith initiated contact with Investigator Sciple before giving the second and third statements.

¶ 16. Our “standard of review for the admission or suppression of evidence is abuse of discretion.” Miss. Tmnsp. Comm’n v. McLemore, 863 So.2d 31, 34 (¶ 4) (Miss.2003). Who initiated communication regarding the charges is a question of fact. The circuit judge held a suppression hearing where Investigator Sciple testified that Smith had asked to speak with him. Smith testified that he asked for medical attention. The resolution of conflicting testimony in a suppression hearing is left to the trial judge as the finder of fact. Alexander v. State, 610 So.2d 320, 328 (Miss.1992). Smith’s points to nothing in the record that shows manifest error in the trial court’s decision, and we are not convinced that Smith’s uncorroborated testimony was of such worth that it substantially outweighed that of Investigator Sciple. See Littleton v. State, 774 So.2d 473, 476 (¶ 10) (Miss.Ct.App.2000). The circuit judge did not abuse his discretion in admitting Smith’s statements.

¶ 17. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCES OF TWENTY YEARS AND TEN YEARS AS AN ENHANCEMENT FOR THE USE OR DISPLAY OF A FIREARM IN THE COMMISSION OF A FELONY, WITH THE TEN-YEAR ENHANCEMENT TO RUN CONSECUTIVELY TO THE TWENTY-YEAR SENTENCE; AND COUNT II, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF FIVE YEARS, WITH THE SENTENCE TO RUN CONSECUTIVELY TO THE TWENTY-YEAR SENTENCE IN COUNT I AND CONSECUTIVELY TO THE TEN-YEAR ENHANCEMENT, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.

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

      . At the hearing, Smith argued that he confessed because Investigator Sciple made promises of reward. The suppression hearing was focused on that issue, not Smith's right to counsel.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Wanda PIERCE and Dale Pierce, Appellants v. William J. GIBSON, Jr., M.D., Appellee.
    No. 2011-CA-01077-COA.
    Court of Appeals of Mississippi.
    Feb. 5, 2013.

      Jim Waide, Tupelo, Ron L. Woodruff, attorneys for appellants.
    Stephen P. Kruger, Kristopher Alan Graham, Jan F. Gadow, Jackson, attorneys for appellee.
   CARLTON, J.,

for the Court:

¶ 1. On March 5, 2004, Dale and Wanda Pierce (collectively, the Pierces) filed suit against Dr. William J. Gibson Jr., alleging that Dr. Gibson negligently failed to provide adequate medical treatment to Wanda. After a trial held in the Rankin County Circuit Court on October 13, 2010, the jury returned a verdict in favor of Dr. Gibson. On October 19, 2010, the circuit court entered its final judgment reflecting the jury’s verdict. The Pierces filed a motion for a new trial on October 25, 2010, which the circuit judge subsequently denied. On July 14, 2011, the Pierces filed this appeal, asserting that the jury verdict in favor of Dr. Gibson was against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS

¶2. Wanda Pierce sought preventative medical treatment from Dr. William J. Gibson Jr., a breast and thyroid specialist, from 1984 through 2003. Wanda had a family history of breast cancer and also suffered from a condition called fibrocystic disease, which caused the formation of multiple cysts in her breasts. Between 1984 and 2003, Wanda scheduled appointments with Dr. Gibson every six months for checkups. During that time frame, Dr. Gibson removed one benign mass from Wanda’s breast. Dr. Gibson also performed numerous fine-needle aspirations upon various masses that he discovered in both of Wanda’s breasts over the years.

¶ 3. In June 2002, Wanda met with Dr. Gibson for one of her regular checkups. The record shows that Dr. Gibson performed an ultrasound in his office at this June 2002 visit. Wanda’s medical records from the visit reflect “numerous cysts bilateral,” but no solid masses. Wanda asserts Dr. Gibson found a mass on her right breast at this June 2002 visit, but Dr. Gibson claims he found no mass in her right breast at this visit, citing his medical records from that exam. Wanda testified that during this visit in June 2002, Dr. Gibson palpated her right breast, discovered a mass, and inquired about it. Wanda asserts that she informed Dr. Gibson that she had failed to notice the mass, and in response, Dr. Gibson placed Wanda’s hand over her breast to help her feel the mass. Wanda testified that Dr. Gibson told her that the mass was “round,” “moveable,” and a “cyst.” Wanda testified that Dr. Gibson instructed Wanda to watch the mass for six months, then return to his office in January 2003.

¶ 4. At trial, Dr. Gibson testified that he found no mass in Wanda’s right breast during the June 2002 visit, but he testified he found a small cyst on Wanda’s left breast, as documented on the report of that exam. The report of this examination reflects an ultrasound was performed. However, Wanda’s daughter, Rachel, testified that she observed the conversation between Dr. Gibson and Wanda where Dr. Gibson allegedly alerted Wanda to the discovery of a mass on her right breast. As stated, Dr. Gibson’s medical record documenting Wanda’s June 2002 examination was admitted into evidence and reflected “numerous cysts bilateral” in both of Wanda’s breasts, as well as a “palpable cyst at four o’clock in the left breast.” However, no documentation of a mass in Wanda’s right breast appears in the medical record from the June 2002 visit. Dr. Gibson further explained that a mass and cyst are characterized differently, and he stated he made sure to distinguish between the two in his medical records.

¶ 5. Wanda returned as directed to Dr. Gibson’s office six months later in January 2003 for her follow-up appointment. Dr. Gibson examined both of Wanda’s breasts, and Wanda asserted in her testimony that he reported to her that the lump in her breast was still round, moveable, and a cyst. Dale Pierce, Wanda’s husband, accompanied Wanda to this appointment. Dale testified at trial that Dr. Gibson told Wanda that the lump had gotten bigger. Dr. Gibson disputed this allegation at trial, denying any previous knowledge or previous discovery of this lump or mass in her right breast. As previously discussed, Dr. Gibson testified that he first discovered the mass in Wanda’s right breast during this January 2008 appointment, and upon discovery of the mass, he referred Wanda to River Oaks Hospital in Flowood, Mississippi, for her annual mammogram. Wanda received this annual mammogram in January 2003, as referred, and this mammogram reflected what the radiologist described as a benign-appearing cyst.

¶ 6. More specifically, when reviewing Wanda’s January 2003 mammogram results, the radiologist, Dr. Ed Barham, noted a “nodular opacity” in the right breast and recommended an ultrasound. Dr. Barham performed an ultrasound on Wanda’s right breast, which reflected a “benign-appearing” cyst in her right breast. Dr. Barham also observed that the cyst was 1.2 centimeters, and observed “no solid masses or other suspicious findings.” No biopsy was done at that time based upon the ultrasound findings. The record nonetheless shows that the radiologist noted to Dr. Gibson that “a negative report should not delay biopsy of a dominant mass or clinically suspicious condition.” Dr. Gibson instructed Wanda to return in six month for an examination.

¶ 7. Wanda returned to Dr. Gibson’s office on June 10, 2003. Wanda alerted Dr. Gibson that the lump in her breast had more than doubled in size. Dr. Gibson performed a fine-needle aspiration on the mass. The cytology report states: “positive — malignant cells adenocarcinoma.” Wanda’s medical records from that day state: “Lump in right breast is bigger.” On Friday, June 13, 2003, Dr. Gibson called Wanda and informed her that she had breast cancer. Dr. Gibson instructed Wanda to return on the following Monday for a lumpectomy.

¶ 8. Wanda testified that she asked Dr. Gibson to perform a mastectomy, but she asserted that Dr. Gibson insisted on a lumpectomy, informing Wanda that she would not require a mastectomy if the tumor were “encapsulated.” Dr. Gibson’s testimony confirms that he indeed recommended a lumpectomy for the removal of the mass. Dale testified that while waiting with Wanda in the surgical holding area, he asked Dr. Gibson “How in the world did we get here?” Dale stated that Dr. Gibson responded, “I think you know, I just missed it.”

¶ 9. Wanda asserts that Dr. Gibson negligently failed to perform a sentinel node biopsy at the time of the lumpectomy and made no effort to examine Wanda’s lymph nodes. After the surgery, Dr. Gibson called Rachel and reported to her that the pathology reports provided that the surgical margins were clear, and Dr. Gibson “had gotten all the cancer.”

¶ 10. Rachel and Dale testified that after Dr. Gibson allegedly admitted to them that he “just missed it,” referring to Wanda’s cancer, they decided to seek the opinions of other doctors on Wanda’s condition. In order to prepare to meet with other doctors, the Pierces sought Wanda’s medical records and pathology report from the lumpectomy. Soon after requesting the pathology report, Dr. Janis P. McNeill, a pathologist at the lab that examined the mass Dr. Gibson removed from Wanda’s breast, called Wanda and explained that the margins were not in fact clear, and Dr. Gibson had failed to remove all of the cancer. After receiving that phone call, Rachel testified that she called Dr. Gibson numerous times, and she alleged that he would neither accept nor return her calls. Wanda testified that since Dr. Gibson failed to return Rachel’s phone calls, Wanda decided to “get other opinions.” Wanda testified she then proceeded to see other doctors in Memphis and Birmingham.

¶ 11. In an effort to find a new physician, Wanda met with multiple breast-cancer specialists. On July 7, 2003, Wanda underwent a right mastectomy at the University of Alabama at Birmingham (UAB) Hospital. Shortly thereafter, she underwent chemotherapy. In October 2005, Wanda’s cancer recurred in her chest wall, and she underwent a chest-wall resection.

¶ 12. On March 5, 2004, the Pierces filed suit against Dr. Gibson, alleging that Dr. Gibson negligently had failed to provide adequate medical treatment to Wanda. Specifically, the Pierces alleged that Dr. Gibson negligently had failed to diagnose Wanda with breast cancer and negligently had failed to provide medical care upon its discovery. The Pierces sought to recover actual and punitive damages.

¶ 13. A jury trial was held on October 13, 2010, in the Rankin County Circuit Court. The trial court heard testimony from Wanda, Dale, and their daughter, Rachel, as well as Dr. Gibson and Dr. Ed Barham, the radiologist who performed and interpreted Wanda’s mammogram and ultrasound. The court also heard expert testimony from Dr. Linda Sanders Haigh and Dr. Galen Poole, who testified regarding the applicable standard of care in diagnosing and treating breast cancer.

¶ 14. On October 14, 2010, the jury returned a verdict in favor of Dr. Gibson. On October 19, 2010, the circuit court entered its final judgment reflecting the jury’s verdict. The Pierces filed a motion for a new trial on October 25, 2010, which the circuit judge subsequently denied. On July 14, 2011, the Pierces appealed the circuit court’s order denying the motion for a new trial, asserting the following assignment of error: whether the jury verdict in favor of Gibson was against the overwhelming weight of the evidence.

STANDARD OF REVIEW

¶ 15. The Mississippi Supreme Court has established that the standard for reviewing a motion for a new trial is abuse of discretion. Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997). “The weight of the evidence, rather than the legal sufficiency, is tested in a motion for a new trial.” Johnson v. St. Dominics-Jackson Mem’l Hosp., 967 So.2d 20, 23 (¶ 8) (Miss.2007). ‘When reviewing a de nial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

¶ 16. We review the evidence in the light most favorable to the verdict, only setting aside a jury verdict when it is contrary to the substantial weight of the evidence. Venton v. Beckham, 845 So.2d 676, 684 (¶ 27) (Miss.2008) (citing Ducker v. Moore, 680 So.2d 808, 811 (Miss.1996)); Piggly Wiggly of Greenwood, Inc. v. Fipps, 809 So.2d 722, 725 (¶ 10) (Miss.Ct.App.2001). Any conflicts in the evidence presented at trial are to be resolved by the jury. Venton, 845 So.2d at 687 (¶ 86) (citing Jackson v. Griffin, 390 So.2d 287, 289 (Miss.1980)).

DISCUSSION

¶ 17. The Pierces argue that contrary to the overwhelming weight of the evidence, the jury found no negligence in Dr. Gibson’s medical treatment of Wanda. Dr. Gibson argues that the evidence presented at trial “overwhelmingly” supported the jury’s verdict establishing that no negligence occurred in his medical treatment of Wanda, and Dr. Gibson argues that evidence at trial overwhelmingly showed no mass existed in Wanda’s right breast in June 2002.

¶ 18. As acknowledged, the standard of review on a motion for a new trial is abuse of discretion. Steele, 697 So.2d at 376. A motion for a new trial challenges the weight of the evidence. Bush, 895 So.2d at 844 (¶ 18) (citations omitted). The Mississippi Supreme Court established that “[w]hen reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id.; see Lift-All Co. v. Warner, 943 So.2d 12, 15 (¶ 11) (Miss.2006).

¶ 19. Upon appellate review, the evidence must be weighed in the light most favorable to the verdict. Herring, 691 So.2d at 957. “[I]f the jury verdict is supported by the substantial weight of the evidence, it should not be set aside.” Warmer, 943 So.2d at 15 (¶11). This Court gives great deference to a jury’s verdict, and “conflicts of evidence presented at trial are to be resolved by the jury.” Id. at 16 (¶ 11). The verdict must be contrary to the substantial weight of the evidence in order to warrant a reversal of the verdict and a new trial. Blossman Gas, Inc. v. Shelter Mut. Gen. Ins. Co., 920 So.2d 422, 424 (¶ 10) (Miss.2006).

¶ 20. In order to prevail in a medical-malpractice action, a plaintiff must establish, by expert testimony:

(1) the existence of a duty on the part of a physician to conform to the specific standard of conduct, (2) the applicable standard of care, (3) the failure to perform to that standard, (4) that the breach of duty by the physician was the proximate cause of the plaintiffs injury, and (5) that damages to the plaintiff resulted.

Patterson v. Tibbs, 60 So.3d 742, 753 (¶ 41) (Miss.2011) (quoting Estate of Northrop v. Hutto, 9 So.3d 381, 384 (¶ 9) (Miss.2009)). Mississippi has adopted the national standard of medical care, which provides:

each physician has a duty to use his or her knowledge and therewith treat through medical recovery, each patient, with such reasonable diligence, skill, competence, and prudence as are practiced by minimally competent physicians in the same specialty or general field of practice throughout the United States, who have available to them the same general facilities, services, equipment and options.

McCaffrey v. Puckett, 784 So.2d 197, 203 (¶ 20) (Miss.2001) (citation omitted).

¶ 21. Conflicting evidence was presented to the jury in this case, and we must determine if the jury’s verdict is supported by the substantial weight of the evidence. See Venton, 845 So.2d at 684 (¶ 27). The Pierces claim that Dr. Gibson breached the standard of care in his treatment of Wanda. Specifically, the Pierces claim that a solid mass existed in Wanda’s right breast in June 2002 and that this mass remained untreated by Dr. Gibson until June 2003. In support of their argument that Dr. Gibson breached the applicable standard of medical care, the Pierces cite to Wanda and Rachel’s testimony claiming that a mass was present in Wanda’s right breast during her exam by Dr. Gibson in June 2002, and that Dr. Gibson failed to perform further testing to determine whether the mass was cancerous until June 2003. The Pierces also argue that Dale’s testimony recounting his conversation with Dr. Gibson in 2003 reflected Dr. Gibson’s admission that he “missed” Wanda’s cancer diagnosis.

¶ 22. The Pierces called Dr. Haigh, an expert in breast cancer surgery, as an expert witness to testify regarding the standard of care in breast cancer diagnosis and treatment. During voir dire, Dr. Haigh testified that she earned a Ph.D. in molecular physics, earned a pre-doctoral fellowship from the National Institutes of Health, and earned a post-doctoral fellowship at the Massachusetts Institute of Technology, where she had a grant from the American Cancer Center to study “how cancer works.” Dr. Haigh graduated from Harvard Medical School. Dr. Haigh served as a professor of surgery at Harvard and other universities. Dr. Haigh spent time as a surgeon in private practice, and wrote multiple published articles, as well as co-authored a book, on breast cancer.

¶ 23. Dr. Haigh testified that she had reviewed Wanda’s medical history relating to her breast cancer diagnosis and treatment. Regarding the tumor, Dr. Haigh opined: “In June of 2002, we know by history that a right breast mass was present, but no notation is made on it in the office note. We know it was there because it’s now bigger six months later.” Dr. Haigh further opined that the histories in the medical records of the other physicians Wanda saw while searching for a new physician were all identical to the history from Dr. Gibson’s own records.

¶ 24. Dr. Haigh also testified to numerous alleged breaches of the standard of care by Dr. Gibson. Specifically, Dr. Haigh asserted that Dr. Gibson failed to completely fill out his office records; did not have appropriate diagrams; and made no reference to lymph nodes. Dr. Haigh further testified that a lumpectomy was an inappropriate treatment for Wanda, based on the size of the tumor when compared to the size of Wanda’s breast. Dr. Haigh also testified that Dr. Gibson’s breach of the standard of care in failing to examine Wanda’s lymph nodes during the lumpectomy necessitated the removal of additional lymph nodes during later surgeries. Dr. Haigh further opined that Dr. Gibson breached the standard of care by failing to perform an excisional biopsy or fine-needle aspiration on the mass Wanda claims existed in her right breast in June 2002 and January 2003, and that such failure delayed the diagnosis of her cancer.

¶25. In contrast, Dr. Gibson denies that any mass existed in Wanda’s right breast in June 2002, and Dr. Gibson argues that Dr. Haigh’s testimony fails to support Wanda’s claims of a breach of the standard of care in Dr. Gibson’s medical treatment. Dr. Gibson argues that Dr. Haigh admitted that she was unsure whether the cyst found in January 2003 was the same cyst Wanda alleged existed in June 2002. Dr. Gibson supports .his argument by acknowledging that at trial, Dr. Haigh agreed, upon examining Wanda’s January 2003 ultrasound results, that the cyst in Wanda’s right breast appeared to be benign. Significant to Dr. Gibson’s position, Dr. Haigh also confirmed at trial that based on surgical literature, the standard of care provides that upon discovering a simple cyst in a breast, the cyst should be reevaluated within six months. In further support of Dr. Gibson’s argument, Dr. Haigh testified that the book that she co-authored on breast cancer states that if a patient possesses a simple cyst, no requirement exists to aspirate or biopsy the cyst. Regarding Dr. Haigh’s testimony that Dr. Gibson breached the standard of care in failing to examine Wanda’s lymph nodes during the lumpectomy, Dr. Gibson asserts that no evidence exists showing that Wanda had any cancer in any of her lymph nodes. Dr. Haigh testified that if a patient suffers no reoc-currence of cancer in five years, the patient is “most likely” cured from the disease. Dr. Haigh agreed that Wanda has remained cancer-free for the last five years prior to trial.

¶ 26. Dr. Gibson submits that the evidence presented at trial proves, or provides substantial evidence supporting the jury’s verdict, that no mass existed in Wanda’s right breast in June 2002. With respect to the evidence supporting the jury’s verdict and Dr. Gibson’s argument, Dr. Gibson testified that the medical records for Wanda’s examination in January 2002 reflect he observed a cyst in Wanda’s left breast, not her right breast. The trial court admitted medical records for Wanda’s June 2002 exam into evidence at trial, and the records show that Dr. Gibson performed a physical exam and ultrasound study of both of Wanda’s breasts. Dr. Gibson points to his records from the June 2002 visit. In these records, he detailed his findings of more than fifteen cysts in both breasts, but no solid masses and no mass in the right breast. The medical records supported the trial testimony of Dr. Gibson, and the records show that Dr. Gibson found no existing masses. Consistent with Wanda’s history, the record shows that Dr. Gibson observed a palpable cyst on Wanda’s left breast. The medical record reflects that the ultrasound he performed showed that the cyst was smooth and clear. Dr. Gibson argues that his detailed records support that he conducted a through breast exam in June 2002, and no mass existed in Wanda’s right breast at that time. Dr. Gibson asserts that the evidence supports his testimony and the jury’s verdict that he complied with the applicable standard of care in providing medical treatment for a benign cyst discovered in January 2003 that displayed no solid mass or suspicious radiology findings.

¶ 27. Dr. Gibson also argues that the histories taken by all of the other physicians who met with Wanda conclusively showed that the mass in Wanda’s breast was discovered in January 2003, not June 2002. Dr. Gibson contends that the records of all of these physicians reflect that the physicians recorded that Wanda stated she discovered the mass in January 2003, not June 2002. In support of his argument, Dr. Gibson refers to documentation from July 2003 showing that Wanda requested her medical records from Dr. Gibson’s office after consulting with the doctors in Memphis and Birmingham in June 2003. Dr. Gibson asserts that this documentation and timeline therefore proves that Wanda herself provided the medical history to the physicians. Conversely, Wanda claims that the histories transcribed in the medical records of the other physicians who treated her are incorrect, and she asserts that these physicians obtained her medical history from Dr. Gibson’s records. Dr. Gibson asserts that he did not provide inaccurate exam findings or inaccurate patient histories to the UAB physicians who treated Wanda after her lumpectomy. In support of his argument that these physicians failed to obtain Wanda’s medical history from his records, Dr. Gibson explains that medical records of the other physicians fail to use the same language used by him in medical documentation.

¶28. Dr. Gibson further refutes the Pierces’ claim that he admitted to Dale that he “missed” the cyst in Wanda’s breast. Dr. Gibson claims that the Pierces are attempting to take advantage of his aphasia, which he suffered as a result of a stroke in 2004, to misconstrue his testimony. We acknowledge that matters of credibility and conflicts in testimony are matters for the jury to resolve. Indep. Life & Accident Ins. Co. v. Mullins, 252 Miss. 644, 651, 178 So.2d 663, 665 (1965). Dr. Gibson also challenges Wanda’s testimony that in performing the lumpectomy, he failed to remove all of the cancer. Dr. Gibson stated that after performing the lumpectomy and removing the mass from Wanda’s breast, the pathologist found that clear margins were obtained. However, the record reflects that a pathologist later re-reviewed the results and ultimately determined that the lumpectomy failed to obtain clear margins, therefore requiring further surgery. Dr. Gibson testified that had Wanda continued seeking treatment from him after discovering that the lumpectomy had failed to remove all of the cancer, then he would have then performed a masectomy.

¶ 29. Dr. Gibson presented expert testimony from Dr. Poole, an expert in surgical oncology and the treatment of breast cancer. Dr. Poole attended medical school at the University of Kentucky and did his general surgery training at Wake Forest University. After his residency, Dr. Poole completed a fellowship in trauma and critical care. Dr. Poole previously served as the chief of trauma service and the chief surgical oncologist at University of Mississippi Medical Center. Dr. Poole currently works at Crossgates River Oaks Hospital in private practice.

¶ 30. Dr. Poole testified that based on Dr. Gibson’s physical examination of Wanda, as well as the results of the mammogram and ultrasound, Dr. Gibson complied with the standard of care applicable to a reasonably prudent, minimally competent physician in providing medical treatment to Wanda for a benign cyst with no solid mass or suspicious findings. Dr. Poole testified that the standard of care failed to include or require fine-needle aspiration, surgical removal, or biopsy of a benign cyst with no solid mass unless the mass changed or grew larger. Dr. Poole specifically stated: “[I]t’s very clear to me, from the records that Dr. Gibson provided and are part of the records that I reviewed to prepare for this, that Dr. Gibson did meet the standard of care that any good[,] prudent physician would have met in this case.” Dr. Poole testified that based upon his training, education, and experience, he found no evidence on the clinical examination, mammography, or ultrasonography that any cancer existed in Wanda’s right breast in January 2003. Dr. Poole stated that based on the January 2003 ultrasound report showing no solid mass, the standard of care did not include fine-needle aspirations, biopsy, or surgical removal. Dr. Poole additionally opined that Dr. Gibson also complied with the standard of care in performing a lumpectomy, rather than a masectomy, on Wanda in an attempt to get clear margins when removing the cyst. Dr. Poole also explained that breast surgeons “used to remove all of the lymph nodes in women with breast cancer[;] now, unless the nodes are palpable, we routinely do just the sentinel node biopsy, and only one to four lymph nodes from the armpit will be removed.” Dr. Poole opined that Wanda’s recurrence of cancer in her chest walls in October 2005 had no relation to Dr. Gibson’s treatment of Wanda or the lumpectomy he performed.

¶ 31. With respect to whether the jury’s verdict is based upon the substantial weight of the evidence, the Pierces assert that during the trial, Dr. Gibson’s expert witness, Dr. Poole, failed to sufficiently refute Dr. Haigh’s testimony that Dr. Gibson negligently breached the standard of care in providing medical care to Wanda. The Pierces specifically claim that Dr. Poole offered no opinion as to whether Gibson’s medical records met the standard of care for a minimally competent physician. The Pierces point out that Dr. Poole testified that throughout his prior testimony in medical-malpractice cases, he has never testified that a physician failed to meet the standard of care. However, the evidence offered at trial by Dr. Gibson included more than the testimony of Dr. Poole. We must therefore examine whether sufficient evidence exists to support the jury’s verdict that Dr. Gibson met the applicable standard of care. Venton, 845 So.2d at 684 (¶ 27).

¶ 32. The testimony of Dr. Gibson and of his expert, Dr. Poole, was supported by the testimony of radiologist Dr. Ed Bar-ham. Dr. Barham testified that he performed Wanda’s January 2003 mammogram and ultrasound and, after studying her results from the tests, documented in his report the “benign-appearing cyst” measuring approximately 1.2 centimeters. The January 2003 ultrasound also revealed no solid masses or other suspicious findings. Dr. Barham explained that his job is to report his findings to surgeons as to whether a patient’s test results are benign or malignant, and then the surgeon decides which course of treatment — whether biopsy, surgical intervention, etc. — would be appropriate. Dr. Barham also testified that he showed Wanda’s results to his medical partners, who all agreed that her cyst appeared benign. The record reflects that Dr. Poole’s expert testimony and the testimony of Dr. Barham both support Dr. Gibson’s testimony asserting he met the applicable standard of care in treating Wanda. Dr. Gibson’s trial testimony was also supported by his documentation of the June 2002 exam.

¶ 33. As previously acknowledged, any conflicts in the evidence presented at trial are to be resolved by the jury. Venton, 845 So.2d at 687 (¶ 36). In the present case, the jury determined the credibility of the witnesses, as well as the weight to give to the testimony and evidence at trial, in determining whether Dr. Gibson breached the standard of care in providing medical treatment to Wanda. After hearing the testimony and evidence, the jury rendered a verdict in Dr. Gibson’s favor, finding no negligence in his medical treatment of Wanda. We find sufficient evidence in the record supports the jury’s verdict. Johnson, 967 So.2d at 24 (¶ 12); Venton, 845 So.2d at 684 (¶ 27).

¶ 84. Upon review of the record, we find that the jury’s verdict is not contrary to the overwhelming weight of the evidence, and we cannot say that the verdict shocks the conscience or rests on a complete lack of evidence. See Johnson, 967 So.2d at 28 (¶ 10). Accordingly, we affirm the trial court’s denial of the Pierces’ motion for a new trial.

¶ 35. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE AND FAIR, JJ., CONCUR. ROBERTS, J., CONCURS IN PART AND IN THE RESULT. MAXWELL AND JAMES, JJ., NOT PARTICIPATING.

      . Dr. Gibson testified that he previously found these small cysts during a routine examination on Wanda in August 2001. During that visit, Dr. Gibson performed an ultrasound on both of Wanda's breasts and concluded, based on the results, that "[e]verything is consistent with the benign process. There are no suspicious findings on [the] breast exam or ultrasound.”

      . Dr. Gibson also testified that the ultrasound reflected numerous cysts bilaterally in both of Wanda’s breasts. However, he explained that these cysts were only detectable on the ultrasound; he could not feel the cysts during the physical exam.

      .The record reflects that Rachel scheduled her yearly exam with Gibson to coincide with Wanda's exam. Rachel testified that when she accompanied Wanda to the appointments, the two always shared an exam room.

      . The patient history provided by Wanda at the beginning of her January 2003 examination, and then transcribed into Dr. Gibson’s medical records, reflects that Wanda reported to Dr. Gibson that the lump in her right breast was "bigger.”

      . In Johnson, 967 So.2d at 23 n. 2, the supreme court stated that it had "specifically disclaimed any role as the ‘thirteenth juror’ in the context of granting a new trial on the issue of damages, ... as well as when [reviewing] a motion for [a] judgment notwithstanding the verdict.” (citation omitted). However, when an appellate court "reviews a verdict ... alleged to be against the overwhelming weight of the evidence, this presents a distinctive situation which necessitates the court sitting as a 'thirteenth juror.’ ” Bush, 895 So.2d at 844 n. 2.

      . Dr. Gibson testified that as a result of his stroke, he suffered expressive aphasia, which made it difficult for him to express lengthy statements.

      . Mullins, 252 Miss, at 651, 173 So.2d at 665 ("It is the province of the jury to determine the weight and worth of testimony, and the credibility of the witness.”).


author: MOORE, Judge.

text:
    M.D.C. v. STATE of Alabama.
    2071224.
    Court of Civil Appeals of Alabama.
    Sept. 21, 2012.
    Robert J. Lee of Brinyark, Lee & Hickman, P.C., Tuscaloosa, for appellant.
    Troy King, atty. gen., and David W. Huddleston, asst. atty. gen., Alabama Department of Mental Health and Mental Retardation, for appellee.
   MOORE, Judge.

M.D.C. appeals from a judgment of the Tuscaloosa Juvenile Court (“the juvenile court”) dismissing a petition for M.D.C.’s involuntary commitment filed by his mother, K.C. We affirm.

On or about March 8, 2008, M.D.C. was accused of shooting and killing J.D.F. with a semi-automatic handgun. On March 11, 2008, the State of Alabama moved to transfer proceedings in the juvenile court involving M.D.C. to criminal court, pursuant to § 12-15-34, Ala.Code 1975; that request was filed under ease no. JU-04-658.17.

On March 18, 2008, M.D.C.’s mother, K.C. (“the mother”), filed in the juvenile court a petition for the involuntary commitment of M.D.C.; that petition was assigned case no. JU-04-658.18. The mother asserted in her petition that M.D.C. is “mentally ill and poses a real and present threat of substantial harm to himself or others.” She further asserted, among other things, that

“[M.D.C.] has a long history of out of control behaviors, trouble controlling his anger and trouble sleeping. While in Southern Oaks Center in August 2007, he had medication prescribed for him for mental health issues; however, when he was released the family was not given any prescriptions for [M.D.C.], therefore, [M.D.C.] is not currently taking any medications. Several of [M.D.C.] ’s family members suffer from mental health issues. On or about March 8, 2008, [M.D.C.] allegedly caused the death of [J.D.F.] by shooting him multiple times with a semi-automatic handgun. [M.D.C.] is currently placed in the Tuscaloosa County Juvenile Detention Facility and is presently on suicide watch. [M.D.C.] has previously undergone a psychological evaluation that indicated that [M.D.C.] suffers from mental health issues.”

The juvenile court entered an order on March 18, 2008, appointing Cheryl Stahl as M.D.C.’s guardian ad litem and scheduling a hearing on the State’s and the mother’s motions for March 14, 2008. At that hearing, the guardian ad litem submitted excerpts of a 2006 psychological evaluation that had been performed on M.D.C. and requested that the juvenile court order a new psychological evaluation of M.D.C. before addressing the State’s transfer request. M.D.C.’s defense attorney submitted the 2006 psychological evaluation as an exhibit.

Monte Petersen, M.D.C.’s probation officer, who testified with regard to only the State’s motion to transfer, testified that M.D.C. had been in the court system since July 2004. According to Petersen, as part of the probation office’s rehabilitative efforts, M.D.C. had been placed at various times in Thomasville Boot Camp; Camp Cobia, a therapeutic group home; Teen University, which is also called New Life Center for Change; and Southern Oaks Center, a group home for boys.

The mother testified at the hearing that, when M.D.C. had been released from Southern Oaks, she had received a telephone call and learned that M.D.C. was suffering from stress and depression, that he had not been sleeping well, and that he had been prescribed Zoloft and another medication. She stated that, since he had returned home, M.D.C. had been saying that he was ready to die and kill himself, had not been sleeping well, and had not had a good appetite. The mother testified that M.D.C. had been walking around the house with his head down and that he sometimes would sit “like he’s just in outer space.” She stated that she was concerned that he would be a danger to himself or to others. According to the mother, members of her family suffer from mental-health issues and, based on her and other members of her family’s diagnoses, she was concerned about M.D.C.’s behaviors. The mother testified that M.D.C. was not on any medications to address any mental-health issues and that he had not been on any such medications since his release from Southern Oaks in August 2007. The mother also testified that she had not taken M.D.C. for mental-health treatment since his release from Southern Oaks and that she was aware that, at the time of the hearing, he was on suicide watch in the juvenile-detention facility.

On March 14, 2008, the juvenile court entered an order on the case-action-summary sheet in case no. JU-04-658.18, stating, in pertinent part: “[Bjased on the evidence and based on the Petition, IT IS ORDERED that the Petition is dismissed as the face of the Petition and the testimony demonstrate that the Petition is totally without merit.” (Capitalization in original.) Apparently, the juvenile court also transferred the criminal aspect of the proceedings — i.e., JU-04-658.17 — to the circuit court. (MJD.C.’s brief, p. 3.)

On March 25, 2008, M.D.C. appealed the dismissal of the petition for involuntary commitment to the Court of Criminal Appeals. That court transferred the appeal to this court on September 29, 2008. As we stated in note 1, supra, the appeal was transferred back to the Court of Criminal Appeals and then to the Alabama Supreme Court before ultimately being transferred back to this court on August 15, 2012.

In M.D.C.’s brief on appeal, M.D.C. raises one issue: “Did the [juvenile court] err in granting the State’s motion for transfer of case to criminal court.” The standard of review stated in M.D.C.’s appellate brief speaks only to the transfer of the criminal aspect of the case from the juvenile court to the circuit court for disposition. Additionally, the overwhelming majority of M.D.C.’s argument on appeal is dedicated to the transfer of the criminal aspect of the case, rather than to the dismissal of the mother’s petition for the involuntary commitment of M.D.C., which is civil in nature. See Clancy v. State, 107 So.3d 1118 (Ala. Crim.App.2012) (noting that a transfer hearing arises out of a delinquency proceeding, which is criminal in nature, while an involuntary-commitment hearing is a civil matter).

The State of Alabama filed its appellee’s brief with the Court of Criminal Appeals on November 13, 2008. In that brief, the State asserted that, because the appeal arose from case no. JU-04-658.18 and, thus, related only to the denial of the mother’s petition rather than to the motion to transfer the criminal aspect of the case, the appeal should lie in this court rather than in the Court of Criminal Appeals. The State also questioned in its brief on appeal whether M.D.C. has standing to appeal the denial of the mother’s petition because, it asserts, the very nature of the mother’s petition is adversarial to M.D.C.

“A party that is not aggrieved by a trial court’s judgment lacks standing to appeal from that judgment, and this court lacks jurisdiction over such an appeal.” Edwards v. Ford, 93 So.3d 99, 103 (Ala.Civ.App.2011). Involuntary-commitment cases arise in an “adversary context.” Dunson v. Christian, 419 So.2d 249, 251 (Ala.Civ.App.1982). In the present case, the dismissal of the petition to involuntarily commit M.D.C. was determined in M.D.C.’s favor. Thus, the outcome did not aggrieve M.D.C. As a result, we conclude that M.D.C. does not have standing to appeal the dismissal of the mother’s petition. Although the arguments on appeal predominantly pertain to the transfer order, as noted by the State, the dismissal of the involuntary-commitment petition is the only matter before this court in the appeal from case no. JU-04-658.18. Thus, because M.D.C. lacks standing, we must dismiss this appeal. See Goodyear Tire & Rubber Co. v. Moore, 900 So.2d 1239, 1240 (Ala.Civ.App.2004).

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.

      . The case was initially appealed to the Court of Criminal Appeals; that court transferred the appeal to this court on September 29, 2008. After reviewing M.D.C.'s brief on appeal, see Clancy v. State, 107 So.3d 1118 (Ala.Ciim.App.2012) (noting that a transfer hearing arises out of a delinquency proceeding, which is criminal in nature, while an involuntary-commitment hearing is a civil matter), this court determined that M.D.C.’s arguments were more properly presented to the Court of Criminal Appeals, and, thus, we transferred the case back to that court for lack of subject-matter jurisdiction on October 23, 2008. On December 11, 2008, the Court of Criminal Appeals requested that the appeal be transferred to the Alabama Supreme Court. On July 30, 2009, the Alabama Supreme Court ordered that the case be transferred to that court. On August 15, 2012, the supreme court entered an order transferring the appeal to this court.


text:
    Harry HITCHCOCK v. STATE of Alabama.
    2110689.
    Court of Civil Appeals of Alabama.
    Sept. 28, 2012.

      Alan R. Elledge, Florence, for appellant.
    Luther Strange, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   MOORE, Judge.

Harry Hitchcock appeals from a judgment of the Madison Circuit Court (“the trial court”) ordering the forfeiture of Hitchcock’s 2010 Chevrolet Camaro automobile. We affirm.

Background

On March 30, 2010, Hitchcock was arrested for possession of marijuana and for driving under the influence (“DUI”); the marijuana was found in the 2010 Chevrolet Camaro in which Hitchcock was sitting at the time of his arrest. On April 7, 2010, the State of Alabama initiated forfeiture proceedings, pursuant to Ala.Code 1975, § 20-2-93, against the Chevrolet Camaro. Hitchcock answered the complaint, admitting that he was the owner of the Camaro but denying that it was subject to forfeiture.

On April 18, 2011, Hitchcock entered a guilty plea to possession of marijuana in the second degree, a Class A misdemean- or. He was sentenced to serve one year in jail, but that sentence was suspended, conditioned on his successfully completing two years’ supervised probation and paying certain assessed fines. The DUI charge was nolle prossed by the State.

On March 9, 2012, Hitchcock, through legal counsel, moved for a judgment as a matter of law in the forfeiture action. On March 12, 2012, the trial court conducted an ore tenus hearing on the State’s forfeiture complaint, and, on March 14, 2012, the trial court entered a judgment ordering the forfeiture of the Camaro. The trial court specifically found that Hitchcock had used the Camaro to transport controlled substances and that the forfeiture of the Camaro was reasonable and was not excessive in light of the offense charged and the amount and packaging of the drugs found in the vehicle. Hitchcock timely appealed that judgment.

Evidentiary Background

The evidence presented at the March 12, 2012, trial established the following. Officer Tanner Wilkerson testified that, on March 30, 2010, he received a report that a person was sitting in a Camaro smoking marijuana at the “skate park.” Wilkerson testified that he proceeded to the skate park and found Hitchcock sitting in a 2010 Camaro automobile. According to Wilkerson, he approached Hitchcock, who stated that he had just arrived in town from Florida to visit a friend; Wilkerson testified that Hitchcock could not or would not identify the friend or where the friend lived. Wilkerson testified that, while talking with Hitchcock, he smelled what he believed to be marijuana and alcohol. According to Wilkerson, Hitchcock admitted that he had consumed a “rum and Coke” and that he had smoked marijuana before Wilkerson arrived on the scene.

Wilkerson testified that, after conducting a field-sobriety test, he searched the Camaro and found a hand-rolled cigarette containing what he believed to be marijuana. Wilkerson testified that his backup officer had located additional marijuana in the Camaro. Wilkerson stated that he had also found a cup containing the remains of a rum and Coke mixed drink in the Cama-ro. Wilkerson testified that Hitchcock had been arrested and charged with possession of marijuana and DUI.

Investigator Ted Thiele testified that, on March 30, 2010, he had accompanied Officer Wilkerson to the skate park. Thiele testified that he had found a blue and white cooler in the trunk of the Camaro and that, inside the cooler, he had found a large, clear “Ziploek” bag. Thiele testified that, inside the Ziploek bag, he found four separate bags of a green, leafy substance that he believed to be marijuana. According to Thiele, subsequent toxicology testing confirmed that the substance was, in fact, marijuana weighing approximately two ounces. According to Thiele, after Hitchcock was arrested, the Camaro was towed to the police station.

Nathan Beard testified that he is employed as an investigator by the Madison Police Department and that, on March 30, 2010, he also went to the skate park to assist in the search of the Camaro. Beard testified that he had examined the marijuana that was found in the Camaro and had observed that it was individually wrapped, which, Beard testified, was “typical of a ‘for sale’ product”; he admitted, however, that the marijuana could also have been for personal use and simply packaged that way. Beard testified that Hitchcock had no luggage or personal items with him in the Camaro, which would be expected if Hitchcock was in Madison County on a personal visit from Florida, and that the Camaro showed no insects or dirt or other indications that it recently had traveled any distance from out of state.

Beard testified that the value of the marijuana seized from the Camaro depended on whether it was broken down by grams or ounces. According to Beard, if it was broken down into ounces, it would be worth $100 per ounce, but if it was broken down into grams, it would be worth approximately $20 per gram. According to Beard, 28 grams equals 1 ounce. Beard testified that the toxicology report indicated that the marijuana seized from the Camaro weighed approximately 26 grams. Beard testified that he had worked as a narcotics officer for approximately two years.

The State rested its case, and Hitchcock moved for a judgment as a matter of law, asserting that the State had failed to establish that he was the owner of the Cama-ro; that the seizure of the Camaro violated Ex parte Kelley, 766 So.2d 8S7 (Ala.1999); that the State had failed to timely prosecute its forfeiture case; and that, because the Alabama statutes had improperly classified marijuana as a Schedule I controlled substance, the seizure violated his constitutional rights. The trial court denied Hitchcock’s motion.

Hitchcock then testified on his own behalf. He testified that he is a retired Alabama and Florida high-school teacher. He stated that he lives in Florida but that, on March 30, 2010, he had driven to Madison County to visit a friend. Hitchcock admitted that he had purchased the marijuana in Madison County on that date, but he also claimed that it was “like a medicine” to him because it helped him deal with pain caused by peripheral neuropathy in his feet. Hitchcock testified that the marijuana in his possession had been for his personal use. He explained that the marijuana had been bagged separately because he had three or four varieties of marijuana, which he identified as “Tangerine Dream,” “Pineapple Chunk,” “Northern Lights,” and a possible fourth variety that he could not recall.

Hitchcock denied purchasing the Cama-ro with funds from the sale of marijuana or other controlled substances; he testified that he had purchased the Camaro using money he had received from a trust established by his mother. He offered into evidence sworn affidavits from the trustee of a revocable living trust that had been established by Hitchcock’s mother; according to the affidavits, Hitchcock was a beneficiary of that trust and had received funds from it. Hitchcock introduced into evidence documents establishing that the Camaro had been new when he purchased it in November 2009 for a total of $32,129. The State stipulated that the value of the Camaro was as shown in those documents.

Analysis

Hitchcock first argues that the judgment must be reversed because the State failed to establish that he owned the Camaro. Hitchcock, however, admitted in his answer to the forfeiture complaint that he was the owner of the Camaro. Thus, to the extent the State was required to establish the legal owner of the Camaro, Hitchcock had stipulated to that fact and did not dispute that fact at trial.

Moreover, in his appellant’s brief, Hitchcock fails to cite any authority to indicate that, in a forfeiture action, the State bears the burden of establishing the ownership of the vehicle. It is well settled that “[t]his court will address only those issues properly presented and for which supporting authority has been cited.” Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996). “Rule 28(a)(10)[, Ala. R.App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived.” White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008). Thus, we need not address that argument further.

We next address Hitchcock’s argument that the State violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution by failing to timely bring the forfeiture action to trial. In his brief, Hitchcock has failed to cite any authority in support of that argument, and, as a result, we need not address his argument on appeal. See Asam v. Devereaux, supra; Rule 28(a)(10), Ala. R.App. P.; and White Sands Group, L.L.C. v. PRS II, LLC, supra.

In any event, Ala.Code 1975, § 20-2-93(c), requires only that a forfeiture proceeding be “instituted promptly.”

“ ‘ “The mandate in [§ 20-2-93(c), Ala. Code 1975,] that forfeiture proceedings be instituted promptly is necessary to the statute’s constitutionality.” ’ Adams v. State ex rel. Whetstone, 598 So.2d 967, 969 (Ala.Civ.App.1992) (quoting Reach v. State, 530 So.2d 40, 41 (Ala.1988)). Furthermore, a forfeiture proceeding that is not instituted promptly is ineffectual. Adams, 598 So.2d at 969. ‘The term “promptly” has been construed to mean with a reasonable time in light of all the circumstances.’ State v. $17,636.00 in United States Currency, 650 So.2d 900, 901 (Ala.Civ.App.1994).”

State v. Chesson, 948 So.2d 566, 568-69 (Ala.Civ.App.2006). In $3,011 in United States Currency v. State, 845 So.2d 810, 814 (Ala.Civ.App.2002), this court stated that, “[a]s the Supreme Court noted in Lightfoot [v. Floyd, 667 So.2d 56 (Ala. 1995),] ‘[w]hat is “prompt” is decided on the facts of a given case, but a fairly short time frame,’ i.e., less than 7 to 10 months, ‘is evident from the cases addressing the issue.’ 667 So.2d at 66 (collecting cases).”

In this case, Hitchcock’s Camaro was seized on March 30, 2010, the forfeiture action was initiated on April 7, 2010, and Hitchcock was served on April 7, 2010. Thus, the State initiated the forfeiture proceeding approximately one week after seizing the Camaro; that time frame unequivocally complies with the promptness requirement of § 20-2-93(c). Hitchcock has failed to provide any authority in support of his argument that not only must the forfeiture action be initiated in a prompt manner, but the State’s forfeiture action must be brought to trial within a certain time frame as well. We, therefore, need not address that argument. See Rule 28(a)(10), Ala. R.App. P.; Asam v. Devereaux, supra; and White Sands Group, L.L.C. v. PRS II, LLC, supra.

Hitchcock next argues that the judgment ordering the forfeiture of the Camaro violates Ex parte Kelley, 766 So.2d 837 (Ala.1999), in which our supreme court considered whether a civil-forfeiture judgment was so excessive as to violate the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. “[T]he question whether a fine is constitutionally excessive calls for the application of a constitutional standard to the facts of a particular case, and in this context de novo review of that question is appropriate.” United States v. Bajakajian, 524 U.S. 321, 336 n. 10, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998).

In Spears v. State, 929 So.2d 477 (Ala.Civ.App.2005), this court discussed Ex parte Kelley, supra, at length and elaborated on the proper application of the proportionality test established in United States v. Bajakajian, supra. Because of its relevance to Hitchcock’s issue, we quote from Spears at length:

“In Ex parte Kelley, 766 So.2d 837, 839-40 (Ala.1999), our supreme court applied the proportionality test set out in United States v. Bajakajian, 524 U.S. 821, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998), to determine whether the seizure of a vehicle constituted an excessive fine. The court first set out the general standard — the proportionality test.
“ ‘ “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality. The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.... Until today, however, we have not articulated a standard for determining whether a punitive forfeiture is constitutionally excessive. We now hold that a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.” ’
“Ex parte Kelley, 766 So.2d at 839 (quoting Bajakajian, 524 U.S. at 334, 118 S.Ct. 2028). Our supreme court then discussed the United States Supreme Court’s explanation of how to apply the proportionality test, which requires a court considering the issue to ‘ “compare the amount of the forfeiture to the gravity of the defendant’s offense. If the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense, it is unconstitutional.”’ Ex parte Kelley, 766 So.2d at 840 (quoting Bajakajian, 524 U.S. at 336-37, 118 S.Ct. 2028).
“The Kelley court then considered whether the forfeiture of Kelley’s $30,000 vehicle constituted an excessive fine in light of the proportionality test. Ex parte Kelley, 766 So.2d at 840. Kelley had been charged with a class C felony offense carrying a potential $5,000 fine. Id. Thus, the court concluded, a forfeiture of the $30,000 vehicle, which was six times the amount of the maximum fine that could be imposed, was ‘grossly disproportional to the gravity of [Kelley’s] offense’ and therefore constituted an excessive fine that violated the Eighth Amendment. Id.”

Spears, 929 So.2d at 478-79.

This court in Spears continued:

“The federal courts have enumerated some possible factors for consideration by a court facing an excessive-fine argument in [a] civil-forfeiture case. See United States v. One 1992 Isuzu Trooper VIN # JACDH58W3N79112571, 51 F.Supp.2d 1268 (M.D.Ala.1999). Among the possible factors are ‘(1) the culpability of the claimant; (2) the gravity of the crime; (3) the sentence that could have been imposed on the perpetrator of the offense; and (4) the nature and value of the property forfeited.’ One 1992 Isuzu Trooper, 51 F.Supp.2d at 1273 n. 4. The claimant in One 1992 Isuzu Trooper was not involved in the drug transaction in which the vehicle was involved, and her boyfriend, who had committed the offense from which the forfeiture action arose, was convicted of ‘simple possession’ and fined only $250. Id. at 1273. Although the court agreed that the ‘actual convictions in a case are not disposi-tive for proportionality review purposes,’ it stated that ‘the relevant factors will vary from case to case.’ Id. at 1273-74. The court in [One 1992 Isuzu Trooper ] ultimately concluded that the forfeiture of the claimant’s vehicle constituted an excessive fine.
“Spears argues that the forfeiture of an item worth three times the possible fine for the offenses charged is an excessive fine under the Eighth Amendment and the proportionality test. He makes much of the fact that, despite being charged with possession of marijuana in the first degree, the amount of marijuana in his possession was not enough to qualify as an amount for sale. In addition, he argues that Bond [a roommate] and the third roommate were not charged; however, some testimony at trial indicated that money seized from the third roommate’s safe was, in fact, condemned as well.
“As noted above, Spears is facing potential fines in the amount of $10,000. The trial court found that his vehicle, although containing several enhanced accessories, had a fair market value of approximately $30,000 at the time of its seizure. Spears admitted that he and Bond used the vehicle to travel to purchase both marijuana and cocaine. The vehicle contained 1.19 grams of marijuana and traces of cocaine residue. Spears had previously been convicted of possession of marijuana. He now stands charged with possession of marijuana in the first degree and unlawful possession of a controlled substance. Based on these facts and circumstances, the trial court concluded that a forfeiture of an item worth three times the maximum possible fines did not constitute an excessive fine under the Eighth Amendment.
“We simply do not agree with Spears that the forfeiture of his vehicle worth three times the amount of the potential fines for the particular offenses with which he is charged is grossly disproportional to the gravity of the offenses. In Harris v. State, 821 So.2d 177, 186 (Ala.2001), our supreme court determined that the forfeiture of $165,501 in currency was not an excessive fine. One of the claimants in Harris, Gregory Binion, was found by the trial court to be ‘ “involved in a high-profit business of narcotics sales.” ’ Harris, 821 So.2d at 186. Based on this factual determination, the Harris court noted that the fines for a cocaine-trafficking conviction ranged from $50,000 to $250,000 depending on the quantity of the cocaine being trafficked. Id. The court stated that it could not conclude that the forfeiture of $165,501 was an excessive fine in light of the range of possible fines provided for by the legislature. Id. Because our supreme court determined that the fine in Harris ($165,501, which was more than three times the lowest possible fine) was not excessive, we likewise conclude that the forfeiture of Spears’s vehicle, worth three times the amount of the fines that could be imposed against Spears, satisfies the proportionality test. Accordingly, we affirm the judgment of the trial court.”

Spears, 929 So.2d at 479-80.

As recognized in Spears, supra, for purposes of a civil-forfeiture proportionality review, the trial court may consider the maximum fine that could have been imposed based on the facts of the case; the trial court is not limited by the maximum fine imposed based on the actual conviction or guilty plea. Additionally, in Spears, supra, and in Harris, supra, a forfeiture of three or more times the amount of the fine that could have been imposed in those cases was affirmed.

The evidence in this case established that Hitchcock was in possession of 26 to 27 grams of marijuana packaged in a manner suitable for sale. Hitchcock had used the Camaro to conceal and to transport the marijuana, he had the marijuana in a public skate park where young people are known to congregate, and, although he lives out of state, he could not or would not identify his specific destination in Alabama at the time of his arrest. Although he was charged with possession of marijuana in the first degree, see Ala.Code 1975, § 13A-12-213 (possession of marijuana for other than personal use), a Class C felony punishable by imprisonment and a fine of not more than $15,000, see Ala.Code 1975, § 13A-5-6(a)(3) (addressing term of imprisonment for a Class C felony), and Ala. Code 1975, § 13A-5-11(a)(3) (stating the maximum fine allowed for a Class C felony), he entered a guilty plea to possession of marijuana in the second degree, see Ala.Code 1975, § 13A-12-214 (possession of marijuana for personal use), a Class A misdemeanor.

Because the value of the Camaro was stipulated to be between $32,000 and $33,000, the forfeiture of the Camaro was approximately twice the value of the maximum applicable fine Hitchcock could have received for his actions on March 30, 2010. Based on Spears, supra, we conclude that the forfeiture in this ease was not excessive and, therefore, does not violate the Excessive Fines Clause of the Eighth Amendment to the United States Constitution.

Hitchcock next asserts that the forfeiture of the Camaro pursuant to the Alabama Controlled Substances Act, Ala.Code 1975, § 20-2-1 et seq., violates his due-process rights. He asserts that marijuana should no longer be classified as a Schedule I controlled substance, pursuant to Ala. Code 1975, § 20-2-23. Because of the alleged improper classification of marijuana, Hitchcock argues, his property was seized and ordered forfeited in violation of his constitutional rights. We disagree.

Section 20-2-93(a)(5) states, in pertinent part, that the following are subject to forfeiture: “All ... vehicles ... which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of any property described in subdivision (1) or (2) of this subsection.” Subdivision (1) of § 20-2-93(a) describes “[a]ll controlled substances which have been grown, manufactured, distributed, dispensed or acquired in violation of any law of this state.” (Emphasis added.)

Hitchcock offered no evidence to establish that he had acquired the marijuana that he admittedly possessed in any manner other than in violation of the laws of Alabama, i.e., Hitchcock failed to argue or establish that he had obtained the marijuana in compliance with Ala.Code 1975, § 20-2-110 et seq., or via some other legal means. Thus, whether marijuana is classified as a controlled substance under Schedule I, or under Schedule II, III, IV, or V, it is undisputed that, in Alabama, marijuana is a controlled substance and that Hitchcock had acquired it in violation of the law. Additionally, the evidence presented to the trial court established that Hitchcock had concealed and had transported the illegally acquired marijuana in the Camaro. That is all that is required under the forfeiture statute. Thus, the trial court’s judgment is affirmed.

AFFIRMED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.

      . We acknowledge the discrepancy in the testimony of Thiele and Beard regarding the total weight of marijuana seized from the Camaro. Thiele's testimony was simply an estimate of the amount of marijuana seized, while Beard testified to the actual amount of marijuana seized based on the results of the toxicology report. That discrepancy does not impact our resolution of Hitchcock's appeal.

      . The State raised no objection to the admission of those documents into evidence.

      . Hitchcock asserts that, pursuant to statute, a Schedule I controlled substance is one that has a "high potential for abuse” and has "no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.” See Ala.Code 1975, § 20-2-22. Hitchcock argues that marijuana no longer meets the criteria for inclusion under Schedule I because, he asserts, marijuana has medicinal value. In support of that argument, he points to other states that have legalized the medicinal use of marijuana. He also points to the fact that Alabama has authorized research and experimentation with marijuana for the treatment of certain side effects from chemotherapy and glaucoma in the “Alabama Controlled Substances Therapeutic Research Act,” Ala.Code 1975, § 20-2-110 et seq.


author: THOMAS, Judge.

text:
    Michael T. CHAPPELL v. JP MORGAN CHASE BANK, NA.
    2110510.
    Court of Civil Appeals of Alabama.
    Sept. 28, 2012.
    Michael T. Chappell, pro se.
    Sara Anne Ford, Madeline H. Haikala, and Alysia J. Harris of Lightfoot, Franklin & White, L.L.C., Birmingham, for appel-lee.

      . The order granting Chase’s summary-judgment motion is a handwritten notation on the bottom of the motion that is signed by the judge. See Rule 58(b), Ala. R. Civ. P. ("A written order or a judgment will be sufficient if it is signed or initialed by the judge....").

   THOMAS, Judge.

Michael T. Chappell appeals from a judgment of the Montgomery Circuit Court (“the circuit court”) in favor of JP Morgan Chase Bank, NA (“Chase”). We dismiss the appeal.

On June 1, 2010, Chappell filed a complaint in the Montgomery District Court (“the district court”), alleging that Chase owed him $1,490 because, he said, Chase “stole this amount of money from [him].” Chappell filed an application for a default judgment in the district court on September 2, 2010. The district court entered an order setting the case for “Writ of Inquiry” and requiring all parties to the action to appear before the district court on October 4, 2010. Before October 4, 2010, Chappell filed a motion styled as a “Motion to Stop Foreclosure Sale” in the district court, requesting the district court to stop Chase from proceeding with its foreclosure of Chappell’s residence. That motion effectively amended Chappell’s complaint.

On October 4, 2010, the parties appeared before the district court. That same day the district court entered an order denying Chappell’s “Motion to Stop Foreclosure Sale,” stating that the district court “lacks jurisdiction over matters of equitable relief.” On October 20, 2010, Chappell filed an appeal from the district court to the circuit court.

After Chappell’s case had been appealed to the circuit court, on November 80, 2010, Chappell filed a motion styled as a “Motion to Stop Foreclosure” in the circuit court, requesting that the circuit court stop Chase from proceeding with its foreclosure of Chappell’s residence. Chase filed an answer to Chappell’s “Motion to Stop Foreclosure,” denying the material allegations and asserting affirmative defenses. On September 14, 2011, Chase filed a motion for a summary judgment on Chap-pell’s claims. Chappell filed a motion in opposition to Chase’s motion for a summary judgment on October 13, 2011.

On January 18, 2012, the circuit court entered a summary judgment in favor of Chase on Chappell’s claims. Chappell timely appealed to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Chase raises potential issues regarding the circuit court’s jurisdiction over the action. It is well settled that

“ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). ‘Lack of subject matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu.’ Ex parte Smith, 438 So.2d 766, 768 (Ala.1983).”

MPQ, Inc. v. Birmingham Realty Co., 78 So.3d 391, 393 (Ala.2011).

Section 12-11-9, Ala.Code 1975, states, in pertinent part:

“If a case filed in the circuit court is within the exclusive jurisdiction of a district court or a case filed in the district court is within the exclusive jurisdiction of the circuit court, the circuit clerk or a judge of the court where the case was filed shall transfer the case to the docket of the appropriate court, and the clerk shall make such cost and docket fee adjustments as may be required and transfer all case records.”

Therefore, Chappell’s case was not properly before the circuit court because the district court was required to transfer the action to the circuit court in order for it to attain jurisdiction over the action pursuant to mandatory procedures provided in § 12-11-9. See Ex parte Smith, 438 So.2d 766, 768-69 (Ala.1983) (discussing the mandatory nature of transferring a case from the district court to the circuit court pursuant to § 12-11-9 in order to confer the circuit court with subject-matter jurisdiction over the case). Accordingly, because the circuit court lacked subject-matter jurisdiction to enter a judgment in Chap-pell’s case, the January 18, 2012, judgment is void, and, because a void judgment will not support an appeal, we must dismiss Chappell’s appeal. See Greene v. Town of Cedar Bluff, 965 So.2d 773, 779 (Ala.2007) (quoting Underwood v. State, 439 So.2d 125, 128 (Ala.1983)) (“ ‘[Sjince a void judgment will not support an appeal, it follows that the appeal is due to be dismissed.’ ”).

Moreover, even if an appeal, as opposed to a transfer, was the proper method for moving the action to the circuit court, the district court’s judgment is a nonfinal judgment that cannot support an appeal because the district court’s order did not dispose of Chappell’s claim for monetary damages in the amount of $1,490. See § 12-12-70(a), Ala.Code 1975 (“Any party may appeal from a final judgment of the district court in a civil case by filing a notice of appeal.... ”); § 12-12-71, Ala.Code 1975 (noting that appeals are taken from final judgments). A judgment is nonfinal if it fails to adjudicate all the claims between the parties, see Wright v. Wright, 882 So.2d 361, 363 (Ala.Civ.App.2003), and “[a] nonfinal judgment will not support an appeal.” Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004). Therefore, we must dismiss Chappell’s appeal.

Accordingly, because the district court failed to properly transfer the action to the circuit court in accordance with § 12-11-9 and because the district court’s judgment was a nonfinal judgment, we dismiss the appeal.

APPEAL DISMISSED.

THOMPSON, P.J., and BRYAN and MOORE, JJ., concur.

PITTMAN, J., recuses himself.

      . Chase filed a "Motion to Confirm Jurisdiction and Suspend Briefing" with this court, addressing the potential jurisdictional issues in this action. In its motion, Chase suggests that this court "treat Chappell’s appeal to the circuit court as a § 12-11-9 transfer that fixed jurisdiction in the circuit court.” It attempts to distinguish Ex parte Smith, 438 So.2d 766, to bolster this argument. However, the record clearly indicates that the mandatory procedures for transferring this case from the district court to the circuit court were not followed and that the holding in Ex parte Smith is clearly applicable to the case at hand.