author: ISHEE, J„

text:
    Timothy Edward MYERS a/k/a Timothy E. Myers a/k/a Timothy Myers, Appellant. v. STATE of Mississippi, Appellee.
    No. 2012-CP-01973-COA.
    Court of Appeals of Mississippi.
    May 20, 2014.

      Timothy Edward Myers, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J„

for the Court:

¶ 1. Timothy Edward Myers pleaded guilty in 1996 in the Jackson County Circuit Court to one count of kidnapping. He was sentenced as a habitual offender to thirty years, all to be served in the custody of the Mississippi Department of Corrections (MDOC). In 1999, Myers filed a motion for post-conviction relief (PCR), which was denied, and he appealed. This Court reversed his sentence and remanded the case for a new hearing, finding that the State had breached the plea-bargain agreement made with Myers. In May 2001, Myers was resenteneed, in accordance with the plea-bargain agreement, as a habitual offender to twenty-five years in the custody of the MDOC. In June 2012, Myers filed another PCR motion. The circuit court dismissed this subsequent PCR motion as time-barred and successive-writ barred. Myers appeals. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On December 20, 1995, Myers was indicted for one count of kidnapping and one count of felony child abuse. The charges stemmed from offenses against a seven-year-old girl on September 28, 1995. On August 26, 1996, the indictment was amended to allege habitual-offender status. A trial began on August 27,1996.

¶ 3. Following voir dire of the jury, Myers and the State reached an agreement. They agreed that Myers would plead guilty to the charge of kidnapping and the State, in return, would drop the charge of felony child abuse and recommend a twenty-five-year sentence as a habitual offender at a separate sentencing hearing. However, at the separate hearing, the district attorney recommended thirty years instead of the previously agreed upon twenty-five years. Based on this recommendation, Myers was subsequently sentenced as a habitual offender to thirty years in the custody of the MDOC.

¶ 4. In 1999, Myers filed a PCR motion seeking to withdraw his guilty plea. The circuit court denied the motion and Myers appealed. On appeal, Myers argued that no factual basis for his crime was shown at the plea hearing; he was not informed of the minimum and maximum sentences; the prosecution breached the plea-bargain agreement; and he received ineffective assistance of counsel. This Court found that the only meritorious issue concerned the prosecution’s failure to comply with the plea-bargain agreement. As such, this Court reversed the sentence imposed and remanded the case for a new hearing to determine whether Myers could withdraw his plea, and, if not, to sentence Myers according to the original plea-bargain agreement with the State.

¶ 5. At the conclusion of the new hearing, the circuit court determined that there was no sufficient reason to allow Myers to withdraw his guilty plea. Pursuant to the original plea-bargain agreement, Myers was resentenced as a habitual offender to twenty-five years in the custody of the MDOC. On June 20, 2012, Myers filed his second PCR motion. The circuit court dismissed the subsequent PCR motion, finding that it was time-barred and successive-writ barred. Myers now appeals.

DISCUSSION

¶ 6. A trial court’s dismissal of a PCR motion will not be disturbed unless the decision was clearly erroneous. Jackson v. State, 67 So.3d 725, 730 (¶ 16) (Miss.2011) (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)). Questions of law are reviewed de novo. Id.

¶ 7. Myers argues that the circuit court’s denial of his PCR motion was plain error because the State failed, at his original sentencing in 1996, to prove that he was a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007). As such, he asserts that the circuit court failed to conduct a proper sentencing hearing requiring the State to prove each and every element of section 99-19-81. Myers also contends that the circuit court erred in how it conducted a new sentencing hearing on remand, as directed by this Court. He asserts that the circuit court again failed to require the State to prove the elements of section 99-19-81.

¶ 8. Mississippi Code Annotated section 99-39-5(2) (Supp.2013) provides:

A motion for relief under this article shall be made within three (3) years after the time in which the petitioner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction.

Myers filed his second PCR motion on June 20, 2012, challenging both his 1996 sentencing hearing and his 2001 resentenc-ing hearing. The three-year statute of limitations expired on May 11, 2004. On its face, Myers’s PCR motion appears time-barred.

¶ 9. Section 99-39-5(2)(a)-(b) provides three exceptions to the general three-year statute of limitations. To be exempt, a movant must show one of the following: (1) an intervening decision of a higher court; (2) new evidence, not reasonably discoverable at trial; or (3) his sentence has expired, or his parole, probation, or conditional release has been unlawfully revoked. Miss.Code. Ann. § 99-39-5(2)(a)-(b). Further, the Mississippi Supreme Court has found that “[ejrrors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act].” Rowland v. State, 42 So.3d 503, 506 (¶ 12) (Miss.2010).

¶ 10. While these exceptions do exist, Myers has failed to offer any proof that an exception applies to this case. “This court will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate ‘a claim procedurally alive substantially showing the denial of a state or federal right.’” Hughes v. State, 106 So.3d 836, 839 (¶ 4) (Miss.Ct.App.2012) (citation omitted). Accordingly, Myers’s PCR motion is barred by the three-year statute of limitations. Thus, we affirm the circuit court’s judgment.

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

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

      . Myers v. State, 770 So.2d 542, 543 (¶ 1) (Miss.Ct.App.2000).

      . Myers, 770 So.2d at 550 (¶ 36).


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Catina TURNER, Appellant v. ENTERGY MISSISSIPPI INC., Appellee.
    No. 2012-CA-01286-COA.
    Court of Appeals of Mississippi.
    May 20, 2014.
    Carlos Moore, Tangala Hollis, Grenada, attorneys for appellant.
    Roxanne Case, Ridgeland, Franklin Garrison, attorneys for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2009, Catina Turner was working for Temp Staff Inc. when she was directed to Entergy Mississippi Inc. for work as a temporary employee. While in a restroom at Entergy, Turner claims she was injured when an air vent fell on her head. She filed a workers’ compensation action following the incident. Several months later, she also filed a premises-liability claim in the Hinds County Circuit Court, First Judicial District. The circuit court eventually granted summary judgment to Entergy on the grounds that Turner’s remedy for relief lay exclusively in the form of workers’ compensation, and that Turner failed to prove the essential elements of her case. Aggrieved, Turner appeals. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In 2007, Temp Staff, a temporary staffing agency, entered into a contractual agreement with Entergy’s parent company, Guidant. The agreement stated that Temp Staff would provide temporary workers to Guidant and its subsidiaries, including Entergy, for a fee. The agreement also noted that Temp Staff must indemnify and hold harmless Guidant and all its subsidiaries in the event that a temporary worker were injured or filed suit for personal injury or property damage. The agreement was in effect during all times related to the instant case.

¶ 3. On March 28, 2009, Turner was employed by Temp Staff and was placed in a temporary position in Entergy’s customer-service department. While at work, Turner entered a restroom and was allegedly injured by a falling air vent. On May 4, 2009, Turner filed a petition to controvert with the Mississippi Workers’ Compensation Commission against Temp Staff. Temp Staff admitted that the incident occurred and that Turner was its employee, but denied the extent of Turner’s alleged injuries.

¶ 4. On August 11, 2009, Turner filed a premises-liability claim in the circuit court against Entergy. Turner alleged that she was a business invitee of Entergy, and that Entergy breached its duty of reasonable care and duty to warn of a dangerous condition. She sought personal-injury damages, emotional-distress damages, lost wages, punitive damages, and other costs. Entergy denied all allegations, and soon filed a motion to dismiss.

¶ 5. The circuit court treated Entergy’s motion to dismiss as one for summary judgment. After a hearing on the matter, the circuit court determined that the indemnification agreement between Temp Staff and Entergy, by virtue of Guidant, rendered Turner’s claims moot. Furthermore, the circuit court concluded that Turner’s workers’ compensation claim was the exclusive legal remedy for her alleged injuries. Turner now appeals the circuit court’s judgment.

DISCUSSION

¶ 6. We employ a de novo review of a circuit court’s grant or denial of a motion for summary judgment. McSwain v. Sys. Energy Res., Inc., 97 So.3d 102, 105 (¶ 6) (Miss.Ct.App.2012) (citing Anglado v. Leaf River Forest Prods., 716 So.2d 543, 547 (¶ 13) (Miss.1998)). “Summary judgment ‘shall be rendered forthwith if the pleadings, depositions, answers to interrogatories[,] and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. at 105-06 (¶ 6) (quoting M.R.C.P. 56(c)).

¶ 7. Turner first argues that summary judgment was improper because the circuit court improperly recognized her as a dual employee of Temp Staff and Entergy instead of Entergy’s business invitee. A business invitee is owed a duty of reasonable care to “keep the premises in a reasonably safe condition” by the premises owner — in this ease, Entergy. Id. at 107 (¶ 11) (citation omitted). The law defines a business invitee as “a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” Little v. Bell, 719 So.2d 757, 760 (¶ 15) (Miss.1998) (citation omitted).

¶ 8. However, under Mississippi Code Annotated section 71-3-9 (Rev.2011) the “liability of an employer under the terms and provisions for benefits pursuant to the Mississippi Workers’] Compensation Act shall be exclusive and in place of all other liability of the employer to the employee arising out of injuries received by the employee within the course and scope of his employment.” Ray v. Babcock & Wilcox Co., 388 So.2d 166, 167 (Miss.1980). The Mississippi Supreme Court has held that “when an employee is engaged in the service of two (2) employers in relation to the same act (dual employment), both employers are exempt from common[-]law liability, although only one of them has actually provided workers’] compensation insurance.” Id.

¶ 9. Hence, an employee working under two employers is not classified as a business invitee for purposes of common-law liability. Rather, the employee is classified as a dual employee and is not subject to common-law classifications under premises-liability theories. Thus, Turner was properly classified as a dual employee of Temp Staff and Entergy. .

¶ 10. Section 71-3-9 is clear that “[t]he liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee ... and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death.... ” (Emphasis added). The supreme court has stated that in the ease of dual employment, “the only available remedy against either [of the two employers] is workers’ compensation and [the employee] would be barred from bringing a common-law negligence action against [either employer].” N. Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995). Thus, the circuit court did not err in its determination that Turner’s pending workers’ compensation action is her exclusive remedy under the law. Accordingly, summary judgment was proper since En-tergy was entitled to a judgment as a matter of law. The issues raised are without merit.

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

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


text:
    William WALKER, Appellant v. WILLIAMS TRANSPORT, LLC and Arch Insurance Company, Appellees.
    No. 2013-WC-00983-COA.
    Court of Appeals of Mississippi.
    May 20, 2014.

      Taylor R. Brinkley, H. Alexander Brinkley, Hattiesburg, attorneys for appellant.
    L. Matthew Quinlivan, Frederic Theodore Le Clercq, attorneys for appellees.
    Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In July 2011, William Walker was employed with Williams Transport LLC as a truck driver. While working, Walker exited his truck, fell, and was injured. He received medical attention at a nearby hospital shortly after the accident where a urinalysis revealed cocaine in his system. Walker filed a petition to controvert with the Mississippi Workers’ Compensation Commission against Williams Transport. In July 2012, an administrative judge (AJ) found Walker’s intoxication to be the proximate cause of the injury and dismissed the claim. The Commission affirmed the AJ’s findings and Walker now appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. While employed with Williams Transport, Walker was working in Texas driving an eighteen-wheeler truck. On July 18, 2012, Walker drove the eighteen-wheeler to a truck scale to be weighed. When exiting the truck, he claims to have slipped and fallen several feet to the ground below. He testified to having back and rib pain from the fall.

¶ 3. After reporting his injuries to his supervisor, Terry Bass, he was instructed to seek medical attention at a nearby hospital in Shreveport, Louisiana. During his time at the hospital, he submitted to a urinalysis. Shortly thereafter, he was informed that his urinalysis tested positive for cocaine.

¶ 4. On August 19, 2011, Walker filed a petition to controvert against Williams Transport, claiming work-related injuries stemming from his fall. In response, Williams Transport raised the affirmative defense of intoxication due to Walker’s positive drug test at the hospital. In July 2012, the AJ held a compensability hearing. Several witnesses testified, including Walker, Bass, and Dr. William George, an expert in toxicology and pharmacology.

¶ 5. Walker explained that during the time in question, his job with Williams Transport had been to drive an eighteen-wheeler between a sand yard in Marshall, Texas, and a drilling location about an hour and a half away in Mansfield, Louisiana. The truck would be loaded with fracking sand at the sand yard and then unloaded at the drilling location during each trip. Walker testified that on the day before the incident, he drove his regular route until approximately 9 p.m., when he arrived at the drilling location to unload the fracking sand. There, he was met with delays from an accident involving another truck. He stated that he was told he could not unload until 3 a.m. Walker said he slept in the cab of his eighteen-wheeler until 3 a.m., unloaded the sand, and then slept another three to four hours in the cab. Walker testified that he then drove the truck back to the sand yard on the morning of the incident and arrived at approximately 9 a.m. He stated that he made a round trip and arrived back at the sand yard to be refilled again at 3 p.m. The record reflects that his return trip to the sand yard took half an hour longer than usual. On his way out of the sand yard, he stated that he pulled the truck onto a truck scale, opened his door to get out, and fell to the ground.

¶ 6. When questioned about his usage of cocaine, Walker admitted to having been addicted to cocaine in the past, but stated that he had not consistently used cocaine in some time. However, he admitted that he had relapsed about two weeks prior to the accident and had used crack cocaine at a party. Walker told the AJ that he could have taken anywhere between one and ten inhalations of crack cocaine at the party. However, Walker told the AJ he had not used cocaine after the party.

¶ 7. Bass testified that on the day of the incident, he signed Walker’s trip ticket when he left the drilling location for the sand yard the last time before the accident. Bass said that almost immediately after Walker left the drilling location, he telephoned him and asked for directions back to the sand yard. Bass testified that he found this to be strange since Walker had been driving the same route multiple times a day for almost two weeks. Nonetheless, Bass gave him directions and sent him on his way. A few hours later, Bass was informed of Walker’s injuries. Walker and another individual met Bass at a nearby truck stop. Bass stated that Walker appeared “out of it.” Bass accompanied Walker to the nearby hospital, where he observed Walker fall asleep in the emergency waiting room numerous times. Bass testified that Walker seemed to be “a little disoriented.”

¶ 8. Dr. George reviewed Walker’s medical records. He testified that the positive drug test indicated that Walker had used cocaine between two and three days prior to the accident. Dr. George further explained that cocaine has both immediate and lingering effects on the body. Specifically, he stated that delayed effects can include apprehension, depression, fatigue, and impaired concentration for some time after use. While Dr. George admittedly could not presume definitive impairment solely from the urine test, he said that “[the] cocaine has to be considered to be more likely than not the most significant factor in causing the accident.”

¶ 9. Ultimately, the AJ determined that Walker’s use of cocaine was the proximate cause of the accident. Hence, the AJ dismissed Walker’s claim against Williams Transport. The Commission later affirmed the AJ’s findings. Walker now appeals.

DISCUSSION

¶ 10. In workers’ compensation cases, we have held that “[s]o long as there is substantial evidence in the record to support the Commission’s findings, this Court is obligated to affirm the Commission's judgment].” Hollingsworth v. I.C. Isaacs and Co., 725 So.2d 251, 254-55 (¶ 11) (Miss.Ct.App.1998). The issue at hand is whether there is substantial evidence in the record to support a finding that Walker was intoxicated at the time of the incident and that the intoxication was a proximate cause of Walker’s injuries. We find that such evidence exists.

¶ 11. First, Walker admitted to having used crack cocaine at a party on July 5, thirteen days before the incident. Moreover, he admitted that he could have exposed himself to anywhere between one and ten inhalations of crack cocaine during the party. While he states that he did not use cocaine between the time of the party and the time of the incident, the test results at the hospital clearly indicate that cocaine was in his system at the time he fell.

¶ 12. Additionally, we find Dr. George’s testimony to be of particular significance. As an expert in pharmacology and toxicology, he testified that cocaine could affect a user both instantaneously and well after usage. Again, he found that, based on the urinalysis at the hospital, Walker must have used cocaine within two to three days prior to the accident. Dr. George testified that the residual effects of Walker’s crack-cocaine usage prior to the incident likely caused Walker’s fatigue and disorientation, thus contributing to Walker’s fall. This is supported by Bass’s observations of Walker’s disorientation and fatigue during Walker’s phone call to Bass for directions and during Bass’s time with Walker at the hospital after the accident.

¶ 13. Given the evidence before us, we cannot find error in the Commission’s determination that Walker’s intoxication proximately caused his injuries. Accordingly, we affirm the Commission’s judgment. Walker’s issues on appeal are without merit.

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

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


author: JAMES, J.,

text:
    Derrick M. AMOS, Sr., as Next Friend of Derrick M. AMOS, Jr., Appellant v. JACKSON PUBLIC SCHOOL DISTRICT and Superintendent Dr. Lonnie Edwards, Appellees.
    No. 2012-CA-00352-COA.
    Court of Appeals of Mississippi.
    May 20, 2014.

      Precious Tyrone Martin, Suzanne Grig-gins Keys, Jackson, attorneys for appellant.
    JoAnne N. Shepherd, Lula Mae Anderson, Jackson, Kashonda Lekesha Day, attorneys for appellees. .
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Derrick Amos Sr. (Amos) filed a negligence action on behalf of his minor son, Derrick Amos Jr. (Derrick), against the Jackson Public School District (JPSD) in the County Court of the First Judicial District of Hinds County, for injuries Derrick suffered during a recreational football game at school. Following a bench trial, the trial court entered a judgment in favor of the JPSD, after finding that the JPSD was not negligent. Amos appealed to the Circuit Court of Hinds County, and the circuit court affirmed. Amos now appeals. Finding no error, we affirm.

FACTS

¶ 2. In 2008, Derrick was a student at Chastain Middle School. On April 25, 2008, Derrick’s math teacher, Anthony Burkett, took his math class outside as a reward for the class’s positive examination results. Derrick and other male students decided to play a game of football. During the game, Derrick broke his thumb when he tackled another student. On October 24, 2008, Amos filed a complaint in the County Court of the First Judicial District of Hinds County against the JPSD alleging that the JPSD was negligent in allowing the students to play tackle football. The JPSD filed an answer asserting among its defenses immunity under the Mississippi Tort Claims Act (MTCA) pursuant to Mississippi Code Annotated section 11-46-9(1) (Rev.2012).

¶ 3. A bench trial was held on January 27, 2010. At trial Derrick testified that he was injured when he tackled another student, DeAndre Jones. Derrick testified that during the class period, Burkett was using his cellular phone and was not properly supervising the class. According to Derrick, Burkett never told the students not to tackle. DeAndre also testified that Burkett did not instruct the students not to tackle. DeAndre testified that he saw Burkett with a cellular phone in his hand; however, DeAndre could not say for certain whether Burkett was using the phone at the time of the incident.

¶ 4. Burkett testified that he told the students not to play tackle football. Burk-ett stated that he witnessed at least one tackle prior to Derrick’s injury and again instructed the students not to tackle. Burkett denied that he was using his phone at the time of the incident.

¶ 5. At the close Amos’s evidence, the JPSD moved for a directed verdict in its favor on the ground of immunity under the MTCA. The JPSD also moved for a directed verdict on the ground that Amos failed to meet the necessary elements to establish negligence, namely that the evidence did not establish a duty, a breach of duty, or causation. The trial court took both motions under advisement. The JPSD then rested its case and the trial court heard closing arguments. The trial court ruled orally from the bench, finding that the JPSD was not negligent. The trial court also found that the JPSD had immunity pursuant to the MTCA, as Burk-ett was performing a discretionary function. On January 28, 2010, the trial court entered final judgment finding that the JPSD was not negligent.

¶ 6. Amos filed a motion for a judgment notwithstanding the verdict (JNOV) or for a new trial, which the trial court denied by order entered March 1, 2010. Amos then appealed to the Circuit Court of Hinds County, arguing that the JPSD waived immunity by actively participating in the litigation and failing to file a motion to dismiss. The circuit court affirmed the trial court’s judgment without addressing the waiver issue, finding that the trial court specifically found that the JPSD was not negligent. Amos appeals the judgment of the circuit court raising the following issues: (1) whether the circuit court erred in affirming the judgment of the trial court because the trial court applied an incorrect legal standard; and (2) whether the trial court ignored evidence in finding that the JPSD was not negligent; and (3) whether the JPSD waived immunity by failing to pursue the issue.

DISCUSSION

¶ 7. We first note that the trial court granted the JPSD’s motion for a directed verdict; however, “the appropriate motion in a case tried without a jury is not a motion for [a] directed verdict, but [a motion] for involuntary dismissal, pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure.” Gulfport-Biloxi Reg’l Airport Auth. v. Montclair Travel Agency, Inc., 937 So.2d 1000, 1004 (¶ 13) (Miss.Ct.App.2006). Rule 41(b) provides, in part, that “[a]fter the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.” The standard for a motion for involuntary dismissal is different from that of a directed verdict in that the trial court “should grant a motion for involuntary dismissal if, after viewing the evidence fairly, rather than in the light most favorable to the plaintiff, the judge would find for the defendant.” Montclair, 937 So.2d at 1004 (¶ 13) (citing Stewart v. Merchants Nat’l Bank, 700 So.2d 255, 259 (Miss.1997)). Further, “[t]he court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiffs evidence were all the evidence offered in the case.” Id. Finally, “[i]n reviewing a trial court’s grant or denial of a Rule 41(b) motion for involuntary dismissal, we apply the substantial evidence/manifest error standards.” Montclair, 937 So.2d at 1005 (¶ 13).

¶ 8. We also note that Amos’s first two assignments of error are argued for the first time on appeal to this Court. Amos did not raise these issues in his motion for a JNOV before the trial court, or in his appeal to the circuit court. We have held that “[i]ssues not raised at trial cannot be raised on appeal.” Johnson v. Alcorn State Univ., 929 So.2d 398, 407 (¶ 31) (Miss.Ct.App.2006) (citing Southern v. Miss. State Hosp., 853 So.2d 1212 (¶ 5) (Miss.2003)). Thus, these issues are not properly before this Court. The procedural bar notwithstanding, we will address Amos’s assignments of error.

I. Whether the trial court applied an erroneous legal standard.

¶ 9. Amos argues that the trial court used an erroneous legal standard in finding for the JPSD. Particularly, Amos argues that the trial court applied the assumption-of-risk doctrine when it found that the JPSD was not negligent. Amos argues that it was error for the trial court to apply the assumption-of-risk doctrine, which Amos contends was “a significant factor” in the trial court’s decision. We disagree.

¶ 10. Here, the county court was the fact-finder, and the circuit court, and this Court, are bound by the county court’s judgment if its judgment was supported by substantial evidence and was not manifestly wrong. Patel v. Telerent Leasing Corp., 574 So.2d 3, 6 (Miss.1990). As to the findings of fact and conclusions of law, “the judgment of a circuit or county court in a non-jury trial is entitled to the same deference on appeal as a chancery court decree.” Id. (citing Rives v. Peterson, 493 So.2d 316, 317 (Miss.1986)). Thus, “it will be assumed the trial judge made all necessary findings of fact in favor of [the] appellee, whether stated or not.” Id. (citing Brown v. Williams, 504 So.2d 1188, 1191 (Miss.1987)). Furthermore, if the county court’s judgment “can be sustained for any reason, it must be affirmed, ... even [if] the trial judge based it upon the wrong legal reason.” Id.

¶ 11. In ruling from the bench, the trial court found that “the [JPSD] was not negligent. ... [W]hat wrong did the district commit? None[.] ... [T]here is no negligence in taking children outside.” Likewise, the trial court found that Burkett did not abuse his discretion because the principal approved of his decision to take the students outside. The trial court went on to discuss foreseeability, noting that “[n]o one could foresee that [Derrick] would try to tackle a larger student than himself[,] ... [causing the] larger student to fall on his thumb. Unusual, unpredictable, and unbelievable.” In addition, the trial court stated: “Did [Derrick] assume the risk? Any time you aggressively tackle a larger opponent, you assume the risk of being injured.”

¶ 12. The trial court entered a final judgment finding that the JPSD was not negligent. The circuit court affirmed the judgment of the trial court, noting that the trial court “specifically found that the [JPSD] was not negligent,” and that the finding was “supported by substantial evidence.”

¶ 13. Amos is correct in his assertion that, in Mississippi, the assumption-of-risk doctrine has been subsumed into comparative negligence. See Churchill v. Pearl River Basin Dev. Dist., 757 So.2d 940, 943 (¶ 12) (Miss.1999). Here, however, the trial court specifically found that the JPSD was not negligent. That the trial court, after finding that the JPSD was not negligent, went on to discuss the fact that Derrick assumed the risk by voluntarily playing in the game is superfluous. It is clear from the record that the trial court did not utilize the assumption-of-risk doctrine as a bar to recovery. This is supported by the trial court’s final judgment, which states: “[T]he court[,] ... having heard testimony and considered the evidence, determined] that the [defendants were not negligent.” We find that the trial court did not apply an erroneous legal standard. Accordingly, this issue is without merit.

II. Whether the trial court ignored evidence in finding that the JPSD was not negligent.

¶ 14. Amos next argues that the trial court “ignorefd] a great amount of evidence,” and “made a simple conclusion that the [JPSD] was not negligent.” Essentially, Amos argues that the trial court’s finding was not supported by substantial evidence.

¶ 15. As noted above, an involuntary dismissal should be granted if “after viewing the evidence fairly, rather than in the light most favorable to the plaintiff, the judge would find for the defendant.” Montclair, 937 So.2d at 1004 (¶ 13).

¶ 16. Here, the trial court discussed the evidence and testimony at length when ruling from the bench. The trial court cited to testimony, stating that the purpose of taking the students outside was to reward them for their achievements on the math examination. As to foreseeability, the trial court cited to trial testimony in concluding that the injury was not foreseeable. The trial court also noted that, based on the testimony, Derrick was playing voluntarily. Finally, the trial court found that Burkett did not abuse his discretion because the school principal approved the move outdoors.

¶ 17. Based on the record before us, it is clear that the trial court considered the evidence and testimony in rendering his judgment. Viewing the evidence fairly, we find that the trial court’s judgment was based on substantial evidence. Therefore, this issue is without merit.

¶ 18. Because the trial court specifically found that the JPSD was not negligent, we do not need to address whether the JPSD waived immunity under the MTCA. Accordingly, the judgment of the circuit court is affirmed.

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

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


text:
    Justin HOWSE, By and Through His Adult Next Friend, Elwanda BLASINGAME, Appellant v. BRENTWOOD BEHAVIORAL HEALTHCARE OF MISSISSIPPI, Appellee.
    No. 2013-CA-00893-COA.
    Court of Appeals of Mississippi.
    May 20, 2014.

      Jay L. Jernigan, Hattiesburg, attorney for appellant.

      John David Price, Jackson, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Justin Howse sustained injuries from an incident with Alex Jevette Archie, an employee of Brentwood Behavioral Healthcare of Mississippi. Howse filed a civil action, suing Archie and the facility. The Circuit Court of Rankin County granted Brentwood’s motion for summary judgment. Howse appeals the circuit court’s judgment, raising the following issues: (1) whether the circuit court failed to apply the correct standard when considering the standard of care applicable to Brentwood, (2) whether Brentwood was negligent; and (3) whether Brentwood is vicariously liable for the intentional acts of Archie. Finding no error, we affirm.

FACTS

¶ 2. Archie, an employee at Brentwood, removed Howse, a student and patient, from a classroom for misbehaving. The record is unclear as to what happened next, but ultimately, Howse suffered an injury at the hands of Archie, and the act was witnessed by another employee through an open door. Brentwood then reported the matter to the Attorney General’s office for prosecution. On June 11, 2010, Archie was fired from his position at Brentwood. Archie pled guilty to abuse of a vulnerable adult. On October 21, 2011, Howse filed a personal-injury complaint against Archie and Brentwood. Brent-wood filed a motion for summary judgment, which the circuit court granted. Howse appeals.

STANDARD OF REVIEW

¶ 3. This Court “employs a de novo standard of review when reviewing a trial court’s grant of summary judgment.” Sykes v. Home Health Care Affiliates, Inc., 125 So.3d 107, 109 (¶ 5) (Miss.Ct.App.2013). Further,

[t]his Court ... looks at all the eviden-tiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If in this view, the moving party is entitled to [a] judgment as a matter of law, summary judgment should ... be entered in his favor. Otherwise, the motion should be denied.

Richardson v. Methodist Hosp. of Hattiesburg, Inc., 807 So.2d 1244, 1246 (¶ 6) (Miss.2002). “The burden of demonstrating that there are no genuine issues of material fact is upon the movant, and the non-moving party must be given the benefit of every reasonable doubt.” Parmenter v. J & B Enters., Inc., 99 So.3d 207, 213 (¶ 7) (Miss.Ct.App.2012).

DISCUSSION

I. Whether the circuit court failed to apply the correct standard of care for the institution.

¶ 4. Howse argues that the circuit court failed to apply the correct standard of care. Howse also suggests that an exception should be carved out of the current caselaw to hold mental-healthcare providers liable for the criminal acts of employees.

¶ 5. The Mississippi Supreme Court has adopted the Texas standard of care: “[A] hospital is under a duty to exercise reasonable care to safeguard the patient from any known or reasonably ap-prehensible danger from herself and to exercise such reasonable care for her safety as to her mental and physical condition, if known, may require.” Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917, 923 (¶ 8) (Miss.2006). A hospital is liable “for want of ordinary care....” New Biloxi Hosp., Inc. v. Frazier, 245 Miss. 185, 196, 146 So.2d 882, 887 (1962). Brentwood provided ordinary care because it took steps to remove a disruptive patient away from the others and provided a room where Howse could regain his composure.

¶ 6. Also, Dr. Cynthia Undesser stated in her deposition: “As the medical director here, I’m responsible for everything that happens here.... Directly responsible, personally responsible, no. Medically, legally responsible, yes.” Howse relies on this one statement in a deposition to establish the standard of care. As Brentwood correctly points out, Dr. Undesser’s comments are her subjective belief as to her obligations. Further, there is no testimony as to what the national standard of care is or what is considered to be the norm in facilities similar to Brentwood.

¶ 7. Howse asserts that Dr. Undesser is a child-psychiatrist expert and medical director of an institution for children; and as such, she is qualified to testify to the standard of care. This Court has stated that “a plaintiff is generally required to present expert medical testimony, ... establishing that the defendant physician or hospital failed in some causally significant respect to conform to the required standard of care.” Delta Reg’l Med. Ctr. v. Taylor, 112 So.3d 11, 24 (¶ 37) (Miss.Ct.App.2012). However, from the deposition excerpts in the record, there does not seem to be a foundation to qualify Dr. Undesser as an expert to testify as to the standard of care of health facilities to their patients.

? 8. Howse argues that there should be an exception carved out for the mental-healthcare providers to be held responsible for the criminal actions of their employees. However, the Mississippi Supreme Court has stated that “[w]e recognize that it is not for the courts to decide whether a law is needed and advisable in the general government of the people. That is solely a matter for the wisdom of the Legislature.” City of Belmont v. Miss. State Tax Comm’n, 860 So.2d 289, 307 (¶ 43) (Miss.2003) (citation omitted). Howse asks this Court not only to hold Brentwood accountable for an unforeseeable assault on a patient, but to establish caselaw holding healthcare providers liable for the criminal acts of their employees. Such an action is something best reserved for the Mississippi Legislature. Accordingly, this issue is without merit.

II. Whether Brentwood was negligent.

¶ 9. Howse argues that Brentwood was negligent in failing to have a working video camera in the time-out room where Howse was injured.

¶ 10. It is a well-settled rule that “[t]o prevail on a negligence claim, a plaintiff must prove by a preponderance of the evidence each element of negligence: duty, breach of duty, proximate causation, and injury.” Schepens v. City of Long Beach, 924 So.2d 620, 623 (¶ 9) (Miss.Ct.App.2006). Howse only states that a camera was not in the room where Howse was assaulted. But all four elements of negligence must be satisfied.

¶ 11. Here, there is no evidence that Brentwood breached the duty owed to Howse as a patient and proximately caused an injury. The record states that Howse was “hurt” by Archie, but there are no medical records or documents that provide details about the nature of his injury. Also, Howse has not produced any evidence that the lack of cameras in the timeout room was the proximate cause of his injury.

¶ 12. Additionally, even if Brent-wood were found negligent, a “criminal act[ ] can be [an] intervening cause[ ] which break[s] the causal connection with the defendant’s negligent act, if the criminal act is not within the realm of reasonable foreseeability.” Williams ex rel. Raymond v. Wal-Mart Stores E., L.P., 99 So.3d 112, 118 (¶ 19) (Miss.2012). Brentwood exercised its due diligence in hiring Archie by checking his references and, as far as the record shows, there were no reported instances of abuse of patients at Brentwood by Archie. Further, Archie was observed through an open door by a fellow employee. Therefore, the lack of a camera in the time-out room did not contribute to the injury. Accordingly, this issue is without merit.

III. Whether Brentwood is vicariously liable for the intentional acts of Archie.

¶ 13. Howse argues that Archie was acting within his scope of employment when Howse was injured. Howse contends that since Archie was removing a disruptive patient from the classroom and escorting him to the time-out room, Archie was acting within the scope of his employment as a mental-health technician. Howse also argues that Archie’s intentional acts were incidental to the authorized conduct of his employment. Further, Howse suggests that Archie’s guilty plea to a charge of felony abuse of a vulnerable person is evidence of Brentwood’s liability for his injuries.

¶ 14. “It is well established that an employer is responsible for the torts of its employee only when the torts are committed within the scope of employment.” Hall v. Mi Toro No. 2, Inc., 115 So.3d 125, 128 (¶ 11) (Miss.Ct.App.2013) (quotation marks omitted). When determining whether a tort was committed in the scope of employment, we determine “whether it was done in the course of and as a means to the accomplishment of the purposes of the employment and therefore in furtherance of the master’s business.” Parmenter, 99 So.3d at 216 (¶ 14). The definition of scope of employment also includes “tortious acts incidental to the authorized conduct.” Id.

¶ 15. However, it should be noted that just because “an employee’s acts are unauthorized does not necessarily place them outside the scope of employment if they are of the same general nature as the conduct authorized or incidental to that conduct.” Id. An employer is not liable “if the employee ‘abandoned his employment and went about some purpose of his own not incidental to the employment.’ ” Hall, 115 So.3d at 129 (¶ 11) (citation omitted). Further, “[t]here is no vicarious liability where an agent acted with personal or malicious motive, unless the principal authorized or ratified the acts.” Mabus v. St. James Episcopal Church, 884 So.2d 747, 763 (¶36) (Miss.2004).

¶ 16. Here, Archie was acting within the scope of his employment when he removed Howse for being disruptive. Archie deviated from the scope of employment after he and Howse entered the time-out room and Archie assaulted Howse. Archie’s actions were not incidental to authorized conduct as an employee of Brentwood. Howse was not injured as a result of Archie trying to restrain him or carry out any other action related to his employment as a mental-health technician. The actions of Archie did not accomplish the purposes of employment as a mental-health technician. Further, Brentwood did not authorize Archie to assault Howse, nor did it ratify Archie’s actions. Instead, Brentwood immediately suspended Archie the day of the incident and fired him the next day. Brentwood also turned the case over to the Mississippi Attorney General in a timely fashion. Accordingly, this issue is without merit.

CONCLUSION

¶ 17. For the foregoing reasons, we affirm the circuit court’s judgment granting summary judgment to Brentwood.

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

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


author: IRVING, P.J.,

text:
    Robert COOK, Appellant v. NESHOBA COUNTY GENERAL HOSPITAL and Mississippi Hospital Association Public Workers’ Compensation Group, Appellees.
    No. 2013-WC-00754-COA.
    Court of Appeals of Mississippi.
    May 20, 2014.
    Christopher Hederi Neyland, Jackson, attorney for appellant.
    Andrew D. Sweat, Jennifer Hughes Scott, Jackson, attorneys for appellees.
    Before IRVING, P.J., ROBERTS and FAIR, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises out of the Mississippi Workers’ Compensation Commission’s order affirming an administrative judge’s (AJ) order that dismissed Robert Cook’s workers’ compensation claim with prejudice. Feeling aggrieved, Cook appeals and argues that the Commission erred in dismissing his claim because it lacked jurisdiction to do so and because Rule 7 of the Mississippi Workers’ Compensation Commission Procedural Rules allows a claimant’s absence from a scheduled hearing.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On November 23, 2009, Cook filed a petition to controvert with the Commission. Cook alleged that while working as a security guard for Neshoba County General Hospital, he was running to assist with a disturbance and subsequently slipped and landed on his hands and knees. Cook stated that he injured his left knee and his lower back and that although medical treatment had been furnished by his employer previously, medical treatment was not being furnished at the time he filed his petition.

¶ 4. On April 17, 2012, the AJ issued an order dismissing Cook’s claim due to Cook’s failure to file a complete prehearing statement. The order stated that the dismissal would become final unless, pursuant to Mississippi Code Annotated section (Rev. 2011), Cook filed a written request for review of the order within twenty days. The order further stated that in order to properly request reinstatement of his claim, Cook must timely file a motion to reinstate and attach a complete prehearing statement to the motion.

¶ 5. On May 3, 2012, Cook filed a motion to reinstate the claim, asserting that he had filed and completed a prehearing statement. On June 1, 2012, the AJ issued an order reinstating Cook’s claim. Thereafter, the Commission set the hearing on Cook’s claim for August 17, 2012. However, due to a witness’s family emergency, the Commission reset the hearing for October 19, 2012.

¶ 6. Cook failed to appear at the October 19, 2012 hearing, and the hospital and its workers’ compensation carrier, Mississippi Hospital Association Public Workers’ Compensation Group, moved to dismiss the claim, arguing that Cook had proper notice of the hearing date and did not contact anyone to give a reason for his absence. Cook’s counsel advised that he had communicated with Cook once after the hearing was set for October 19, 2012, and that Cook had told him that he had been involved in a serious automobile accident and had undergone brain surgery. Counsel for the hospital and its carrier informed the AJ that they had not received any documentation regarding Cook’s brain injury. Counsel for the hospital and its carrier also informed the AJ that Cook’s counsel attempted to call Cook on the day of the hearing at Cook’s place of employment and was informed that Cook was at work on the day of the hearing. Cook’s counsel opposed the motion to dismiss and moved for a continuance.

¶ 7. The AJ entered an order dismissing Cook’s claim with prejudice and denying Cook’s motion for a continuance. The order stated that Cook failed to appear at the hearing set for October 19, 2012, and failed to contact his counsel and advise why he would not be able to make an appearance. Cook petitioned the full Commission for a review of the AJ’s order. The full Commission affirmed the AJ’s order.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 9. “The standard of review in a workers’ compensation appeal is limited to whether the [Commission’s] decision is supported by substantial evidence.” Omnova Solutions, Inc. v. Lipa, 44 So.3d 985, 940 (¶ 15) (Miss.2010) (quoting Lott v. Hudspeth Ctr., 26 So.3d 1044, 1048 (¶ 12) (Miss.2010)). “[Appellate courts] will reverse an order of the ... Commission only where such order is clearly erroneous and contrary to the overwhelming weight of the evidence.” Lott, 26 So.3d at 1048 (¶ 12).

¶ 10. Cook claims that the Commission lacked jurisdiction to dismiss his claim because there was no evidence to support the Commission’s decision and because claims brought under the Mississippi Workers’ Compensation Act (Act) should be construed liberally and resolved in favor of compensation. It is true that “workers’ compensation law is to be liberally and broadly construed, resolving doubtful cases in favor of compensation so that the beneficent purposes of the [A]ct may be accomplished.” Prentice v. Schindler Elevator Co., 13 So.3d 1258, 1260-61 (¶ 7) (Miss.2009) (quoting McCrary v. City of Biloxi, 757 So.2d 978, 981 (¶ 15) (Miss.2000)). However, Cook has failed to show how the Commission lacked jurisdiction over his claim. Rule 7 of the Commission’s procedural rules provides

No case set for hearing on the merits shall be continued except in the event of illness of an interested party or other extreme circumstances. A1 requests for continuances shall be in writing and shall state with particularity the grounds therefor. An [AJ] or a Commissioner may grant such continuance by written order.
Should a party fail to appear at a scheduled hearing, the [AJ] on his or her motion, or on a motion of an appearing party, may dismiss the case or award compensation upon presentation of proper proof. If, however, a justifiable reason is presented within fourteen (14) days after the date of the order dismissing or awarding compensation, a motion to reopen or set aside the order of dismissal may be heard in the Com-missionfs] or [AJ’s] discretion.

(Emphasis added).

¶ 11. Here, Cook claims that he was involved in a vehicular accident that resulted in his having brain surgery. He insists that the brain surgery constitutes an illness or extreme circumstance that justifies a continuance of his case. However, Cook never informed his attorney that he was unable to attend the hearing scheduled for October 19, 2012. Cook also failed to request a continuance in writing, explaining with particularity the circumstances justifying the continuance. In fact, the record indicates that Cook was at his place of employment on the day of the hearing. Additionally, Cook did not file a motion to reopen the case or set aside the order of dismissal. Therefore, the Commission’s order affirming the AJ’s dismissal of Cook’s claim with prejudice is not clearly erroneous or contrary to the overwhelming weight of the evidence.

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

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

      . Cook did not file a motion to reinstate the case after the AJ dismissed his claim.

      . Mississippi Code Annotated section 71-3-
      1(1) (Supp.2013) now provides:
      [N]otwithstanding any common law or case law to the contrary, this chapter shall not be presumed to favor one part over another and shall not be liberally construed in order to fulfill any beneficent purposes. However, this provision is inapplicable to this case, as it only applies to injuries occurring on or after July 1, 2012. Here, Cook was injured in 2009.


author: CARLTON, J.,

text:
    Ruben Orlando BENITEZ a/k/a Ruben O. Benitez, Appellant. v. STATE of Mississippi, Appellee.
    No. 2013-KA-00469-COA.
    Court of Appeals of Mississippi.
    May 20, 2014.

      Office of State Public Defender by George T. Holmes, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, C.J., ROBERTS, CARLTON and JAMES, JJ.
   CARLTON, J.,

for the Court:

¶ 1. On March 7, 2013, a Harrison County jury convicted Ruben Orlando Benitez of murder. The Harrison County Circuit Court sentenced Benitez to life in the custody of the Mississippi Department of Corrections (MDOC). Benitez now appeals his conviction and sentence.

FACTS

¶ 2. On the morning of September 18, 2011, Sergeant Joey Fore with the D’Iber-ville, Mississippi Police Department and Transportation Security Administration (TSA) representative Jonathan Rhodes performed a welfare check at the apartment of Stacey Wright. Wright was employed by TSA at the Gulfport Biloxi Regional Airport and had failed to report to work that day. Sergeant Fore and Rhodes were accompanied by Steve Ramsey, the courtesy officer for Wright’s apartment complex. Upon arriving to Wright’s apartment in D’Iberville, Sergeant Fore found that the door was unlocked. Upon entering, Sergeant Fore saw Wright’s lifeless body in the hallway. Sergeant Fore observed that Wright had a wound on her left chest and dried blood on her shirt.

¶ 3. Later that afternoon, Detective Marty Griffin of the D’Iberville Police Department spoke to Kent Banks, the law enforcement liaison for TSA, and Benitez, the assistant federal security director for TSA and also Wright’s boss, regarding Wright’s death. During this conversation, Detective Griffin learned that Wright had been involved in a romantic relationship with another TSA employee and that the two had been together on the day of Wright’s murder. Detective Griffin then drove to Jackson, Mississippi, to meet with Banks and Benitez in order to follow up on the investigation.

¶ 4. Detective Griffin met Banks and Benitez at the Jackson Police Department (JPD). Detective Griffin testified that upon meeting Benitez, he noticed that Benitez had a Band-Aid on his right-hand pinky finger. When asked about the injury, Benitez responded that he cut his finger washing his car. Detective Griffin found the cut on Benitez’s finger to be significant, since Wright had been stabbed to death. While at the police department, Benitez was advised of, and then waived, his Miranda rights. During the initial questioning by Detective Griffin, Benitez denied any relationship with Wright and denied that he was in D’Iberville on the day of her murder. However, Benitez eventually confessed that he and Wright were having an affair and that he had been in D’Iberville on the day of the murder. JPD officers obtained biological samples from Benitez, which Detective Griffin took possession of and delivered to the D’Iber-ville Police Department. Benitez made no confession regarding Wright’s murder, and the officers told Benitez that he was free to leave at the conclusion of the questioning.

¶ 5. Search warrants for Benitez’s home in Pearl, Mississippi, his personal vehicle, and his government vehicle were executed. During the search, officers discovered blood in the cabin of Benitez’s personal vehicle, and a bloody pair of men’s shoes in the trunk. Law enforcement officers then traveled to the Jackson airport to search Benitez’s government vehicle.

¶ 6. On the evening of September 19, 2011, assistant special agents for the Office of the Inspector General Terry Crump and Donald Bratton arrived at the Jackson-Evers International Airport in Jackson, Mississippi, to assist local law enforcement with the search of the TSA vehicle. Upon arriving at the airport, Special Agent Crump was advised that Benitez was inside the airport waiting on his wife’s flight .to arrive. Special Agent Crump entered the airport and approached Benitez. He informed Benitez that he was not under arrest, but that he would like to speak to Benitez about Wright’s death.

¶ 7. Benitez agreed to speak to Special Agent Crump, but requested that he be allowed to talk to his wife first, who was flying in from Chicago. However, due to bad weather, Mrs. Benitez’s flight was delayed until the next morning. After Beni-tez called his wife, he went to a public area at the airport to talk with Special Agent Crump and another agent, Donald Brat-ton.

¶ 8. Special Agent Crump gave Benitez a “rights advisement for employees” form to read and sign. Benitez signed the form. Special Agent Crump then asked Benitez if he had any involvement or knowledge regarding the murder of Wright. Special Agent Crump informed Benitez that blood stains had been found in Benitez’s car. Benitez then admitted to stabbing Wright.

¶ 9. Benitez informed the agents that it was difficult to discuss the events surrounding Wright’s death, and that he would prefer to write about it. He walked over to another small table and prepared a written statement describing in detail the evening of Wright’s death. Benitez then returned to the agents. Special Agent Crump swore Benitez to the statement. Benitez also drew a diagram of Wright’s apartment, the scene of the murder.

¶ 10. Shortly after, Officer Joel Wallace, a detective from the Mississippi Bureau of Investigation, arrived at the airport. Officer Wallace advised Benitez of his rights, and proceeded to interview him. At trial, Officer Wallace testified that Ben-itez told him that he was in fact having an extramarital affair with Wright, and that prior to the incident, he and Wright were eating at the Island View Casino. Benitez and Wright were both married to other people, but Wright was separated from her husband. During the meal, Benitez and Wright began discussing their marriage relationships, and the conversation continued after they left the casino and arrived at Wright’s apartment. Officer Wallace testified that Benitez admitted to stabbing Wright at her apartment that night, then gathering his clothing, getting into his car, and driving back to Jackson on Highway 49. Benitez stated that he dropped off his clothing along the way.

¶ 11. Benitez was arrested on September 19, 2011, and subsequently indicted for one count of murder pursuant to Mississippi Code Annotated 97—3—19(1)(a). Benitez pled not guilty on December 10, 2012.

¶ 12. At trial, Benitez testified that he worked for TSA and that his job responsibilities included keeping the state of Mississippi up to code with the latest policies sent from Washington, D.C. Benitez also testified that he and Wright were romantic companions, and that he provided her with financial support. Benitez stated that on September 17, 2011, he woke up at Wright’s apartment in D’Iberville. Wright went to work, but Benitez stayed at the apartment and cleaned it, and had a bath ready for Wright when she came home from work, since she had been complaining about her fibromyalgia. After the bath, Benitez gave Wright a massage. They then went to the grocery store together and returned to the apartment to watch movies. Later, they left the apartment and went to the Island View Casino. At the casino, they ate and had alcoholic beverages.

¶ 13. Benitez testified that they left the casino, and when they got into the vehicle, they began to argue about their relationship. Benitez stated that Wright asked him for more financial support, and threatened to tell his supervisor about their relationship, which is against TSA policy, if he failed to cooperate. Benitez stated that Wright continued to threaten him all the way back to her apartment. Once inside, Benitez testified that he saw Wright raise up her hand, which had something in it. He stated that she compared Benitez to her husband, which caused Benitez to go into an uncontrollable rage. He testified that at during this rage, he lost control and stabbed Wright multiple times. He then grabbed his belongings and left the apartment.

¶ 14. Wright’s daughter, Bria, testified that on the night of September 17, 2011, she received a phone call from her mother. The phone rang only once, and when Bria answered it, she did not hear anything on the other line. Bria immediately called her mother back. Bria testified that her mother answered the phone, and Bria could hear her mother yelling: “[D]on’t you see my daughter [is] calling me?” Bria then heard a man’s voice tell her mother to shut up and keep driving, and then the phone hung up. Bria testified that the man’s voice sounded agitated. Bria tried calling Wright back again, because Wright’s tone sounded upset, but the phone went straight to voicemail. Bria then called her father and her two aunts to relate what had happened. Bria testified that she continued calling her mother at least twenty times that night and never got a response, even after leaving numerous texts and voicemails. She grew concerned and contacted the D’Iberville Police Department. Bria testified that the next morning, she and her father drove down to Wright’s apartment in D’Iberville, where she learned of Wright’s death.

¶ 15. The jury also heard testimony from Special Agent Crump; Officer Wallace; D’Iberville Police Officers Lee Donald and Mike Manna; Sergeant Fore; Detective Griffin; Stacy Smith Jones, a forensic scientist for the Mississippi Bureau of Investigations; Joseph Heflin, a forensic biologist for the Mississippi Crime lab; Dr. Paul McGarry, a pathologist; Kent Banks; and Mary Ann Beni-tez, Benitez’s wife. At the conclusion of the trial, the trial court provided the jury with instructions on murder as well as heat-of-passion manslaughter, and the elements of both.

¶ 16. After the trial, the jury returned a verdict finding Benitez guilty of murder. The trial judge then sentenced Benitez to a term of life in the custody of the MDOC. Benitez filed a motion for a new trial, or, in the alternative, a judgment notwithstanding the verdict (JNOV)- The trial court denied the motion on March 19, 2013. This appeal followed.

¶ 17. On appeal, Benitez makes the following assertions: (1) the evidence supports a conviction for manslaughter rather than murder; (2) the trial court erred in not suppressing Benitez’s illegal statement given to TSA investigators because Beni-tez was not made aware of his right to counsel; and (3) the trial court erred by not suppressing evidence seized in the search of Benitez’s apartment and automobile, because the underlying facts and circumstances attached to the search warrants failed to satisfactorily show probable cause.

STANDARD OF REVIEW

¶ 18. We review challenges to the sufficiency of the evidence by viewing the evidence in the light most favorable to the State. Ellis v. State, 778 So.2d 114, 117 (¶ 7) (Miss.2000). “[T]he critical inquiry is 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.’ ” Brown v. State, 48 So.3d 614, 616 (¶ 6) (Miss.Ct.App.2010) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)).

¶ 19. We review a trial court’s decision to admit or suppress evidence by assessing whether substantial credible evidence existed to support the trial court’s findings. Culp v. State, 933 So.2d 264, 274 (¶ 26) (Miss.2005). We will only reverse a trial court’s admission of evidence upon a finding that the trial court abused its discretion. Id.

DISCUSSION

I. Sufficiency of the Evidence

¶20. Benitez argues that the evidence presented at trial supports a manslaughter conviction rather than a murder conviction. Benitez claims that the State failed to prove that he did not act out of the heat of passion, and he argues that based on the evidence presented at trial, no reasonable juror could find beyond a reasonable doubt that he was not in fact acting out of heat of passion.

¶ 21. As stated, when reviewing challenges to the sufficiency of the evidence, we must view the evidence in the light most favorable to the State. Ellis, 778 So.2d at 117 (¶ 7). If “any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction.” Brown, 48 So.3d at 616 (¶ 6) (quoting Bush, 895 So.2d at 843 (¶ 16)). “If we find that reasonable, fair-minded jurors could have concluded that the defendant was guilty of the accused crime, the evidence will be deemed sufficient.” Id.

¶ 22. Mississippi Code Annotated section 97-3-19(1)(a) (Rev.2006) defines murder as “The killing óf a human being without the authority of law by any means or in any manner ... [w]hen done with deliberate design to effect the death of the person killed, or oq any human being[.]”

¶ 23. Heat-of-passion manslaughter is defined as: “The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense[.]” Miss.Code Ann. § 97-3-35 (Rev. 2006). The Mississippi Supreme Court has defined “heat of passion” as:

[A] state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Mullins v. State, 493 So.2d 971, 974 (Miss.1986) (citing Black’s Law Dictionary, 650 (5th ed.1979)).

¶24. Benitez asserts that during his argument with Wright on the night of her murder, she threatened to call his boss and disclose their relationship, which was against TSA rules, which meant Benitez would lose his job. He stated that Wright also compared Benitez to her husband, whom Benitez despised. Benitez claims that this comparison caused him to become “uncontrollably enraged.” He testified that the moment she said this insult, she put her hand up in the air with what looked like a sharp object, and came towards Benitez. Benitez explains that it was in this moment that he picked up the knife and stabbed Wright.

¶ 25. The record reflects that the trial court instructed the jury on the elements of both murder and heat-of-passion manslaughter. The trial court further instructed the jury that “mere words, no matter how provocative, are insufficient to reduce an intentional and unjustifiable homicide from murder to manslaughter.” Benitez testified relating the facts surrounding Wright’s death. Benitez admitted to stabbing Wright multiple times, then leaving her apartment and driving to Jackson. The pathologist testified that Wright had been stabbed in the chest eleven times. The jury also heard Benitez’s testimony claiming that he thought he saw a sharp object in Wright’s hand prior to stabbing her, and that at the time of the incident he was in an uncontrollable rage stemming from an argument between him and Wright. “The determination of witness credibility lies within the sole province of the jury.” Leggett v. State, 54 So.3d 317, 321 (¶ 22) (Miss.CtApp.2011) (citation omitted). We do “not disturb a jury’s finding on conflicting testimony where there is substantial evidence to support the verdict.” Id.

¶ 26. As stated, the trial court instructed the jury on the elements of murder and heat-of-passion manslaughter. After being so instructed, the jury chose to convict Benitez on the murder charge. After examining the evidence in the light most favorable to the State, we find that the record contains sufficient evidence from which a rational juror could find Benitez guilty of murder beyond a reasonable doubt. See Miss.Code Ann. § 97-3-19(1)(a). The trial court did not abuse its discretion when it denied Benitez’s post-trial motion. See Brown, 48 So.3d at 616 (¶ 6).

II. Suppression of Statement

¶ 27. Benitez next argues that the trial court erred in refusing to suppress his statement given to TSA investigators, Special Agents Crump and Bratton, because, he alleges, he was not made aware of his right to counsel. Benitez testified that when Special Agents Crump and Bratton approached him at the Jackson airport on September 19, 2011, he felt that he was in a custodial interrogation, and Benitez claims he did not feel as if he was free to go. He asserts that he was not given a Miranda warning and was not made aware of his right to counsel before giving his statement to Special Agents Crump and Bratton. Benitez argues that his statement was taken in violation of his Fifth and Fourteenth Amendment rights, and as a result, he claims his statement was illegal.

¶ 28. Alternatively, the State argues that the record clearly shows that Benitez was not in custody at the time he gave the voluntary statement to Special Agent Crump. Regarding our review of the admission of a pretrial statement into evidence, the Mississippi Supreme Court has established:

When reviewing a trial court’s ruling on the admission or suppression of evidence, this Court must assess whether there was substantial credible evidence to support the trial court’s findings. The admission of evidence lies within the discretion of the trial court and will be reversed only if that discretion is abused.

Culp, 933 So.2d at 274 (¶ 26). Miranda warnings are a prerequisite to the admissibility of a defendant’s statement at trial only when that statement is made during custodial interrogation. Tolbert v. State, 511 So.2d 1368, 1375 (Miss.1987). The test for whether a person is in custody for Miranda purposes “is whether a reasonable person would feel he was in custody[, which] depends upon the totality of the circumstances.” Hopkins v. State, 799 So.2d 874, 878 (¶ 7) (Miss.2001). The supreme court has also provided factors to consider in determining whether a person is in custody, including: “[T]he place and time of the interrogation, the people present, the amount of force or physical restraint used by the officers, the length and form of the questions, whether the defendant comes to the authorities voluntarily, and what the defendant is told about the situation.” Id. Significant to this case, the supreme court has held that “[t]he key to determining if the questioning of a person is a custodial interrogation within the meaning of Miranda is whether the defendant is deprived of his freedom of action in any significant manner and whether he is aware of such restraint.” Id. (quoting Roberts v. State, 301 So.2d 859, 863 (Miss.1974)).

¶ 29. When making his ruling denying the motion to suppress Benitez’s statement to Agents Crump and Bratton, the trial judge observed that Benitez possessed an education level of at least two years in college, and that Benitez was employed in upper management. The trial judge also found that “[t]he record is replete that the subject interview took place ... in an open[,] public mezzanine area. I think it’s fair to say it was an open and public location.”

¶ 30. The trial judge noted that Agent Crump used a Garrity , form to advise Benitez of his rights. Agent Crump provided testimony explaining that a Garrity form constitutes a standard form the Department of Homeland Security uses to advise a federal employee of his rights during a criminal-investigation interview. Agent Crump clarified that a Garrity form is used by the Department of Homeland Security to advise an individual who is not in custody of his rights; the department uses another form to advise individuals of their Miranda rights when they are taken into custody. Agent Crump testified that while at the airport, he advised Benitez two times that he was not in custody. Agent Crump also testified that he went over the Garrity form with Benitez. Based on Agent Crump’s testimony regarding the Garrity form, the trial judge found that Agent Crump opted to use the Garrity form because Benitez was not in custody. The trial judge then explained “that [the] Sixth Amendment right to counsel attaches upon the subject or suspect being in custody. The court is taking in to consideration the fact that [Benitez] was advised of his Miranda warnings two days prior to the subject interview giving rise to the motion [to suppress the statement].” The trial court further observed that testimony reflected that Benitez’s statement to Agents Crump and Bratton “was not derived through any promises, threats or inducements^] there is no indication of force, duress, coercion, or promises.”

¶ 31. Upon our review, we find that the record contains substantial credible evidence in support of the trial judge’s denial of the motion to suppress Benitez’s statement to Agents Crump and Bratton. See Culp, 933 So.2d at 274 (¶ 26). Substantial evidence in the record supports the trial court’s determination that the statements by Benitez were freely and voluntarily given, and that Benitez was not in custody at the Jackson airport when he gave these statements. Accordingly, we find no abuse of discretion by the trial court’s admission of Benitez’s statement into evidence.

III. Suppression of Search

¶ 32. Benitez also argues that the trial court erred by not suppressing the search of his apartment and automobile. Benitez explains that the underlying facts and circumstances attached to the search warrants failed to satisfactorily show the probable cause required.

¶ 33. Benitez specifically asserts that the affidavit for the search warrants lists his property, describes his car, and gives his address, but fails to mention his name and the probable cause connecting him to the crime. Benitez claims that the failure to include his name or the probable cause is a violation of Article 3, Section 23 of the Mississippi Constitution.

¶ 34. Benitez cites to the hearing on the motion to suppress the search of his apartment and automobile, where Officer Wallace testified that the justice court judge did not read the underlying facts and circumstances in the affidavit, only what was stated orally. The State, however, argues that Officer Wallace’s oral supplementation presented to the judge who issued the search warrants did indeed provide the probable cause necessary for the issuance of the search warrants.

¶ 35. “A search warrant may only be issued when the police have demonstrated probable cause by introducing evidence of underlying facts and circumstances before the magistrate granting the warrant.” Barrett v. Miller, 599 So.2d 559, 566 (Miss.1992). The supreme court has explained that “[pjrobable cause exists when facts and circumstances within an officer’s knowledge, or of which he has reasonably trustworthy information, are sufficient within themselves to justify a man of average caution in the belief that a crime has been committed and that a particular person committed it.” Id. The supreme court has held that where

the underlying facts stated in an affidavit for search warrant, considered alone, may not be sufficient to confer probable cause, oral testimony adduced before the issuing magistrate, when taken together with the affidavit, may sufficiently establish probable cause for issuance of a search warrant under the “totality of the circumstances” test.

Petti v. State, 666 So.2d 754, 758 (Miss.1995); see also Roberson v. State, 595 So.2d 1310, 1317 (Miss.1992); Hickson v. State, 512 So.2d 1, 3 (Miss.1987); Lockett v. State, 517 So.2d 1317, 1324 (Miss.1987).

¶ 36. Upon review of a judge’s finding of probable cause, this Court determines if a substantial basis existed for the judge’s determination of probable cause. Barrett, 599 So.2d at 566. When conducting this review, we must look “to both the facts and circumstances set forth in the affidavit for [the] search warrant and ... the sworn oral testimony presented to the issuing magistrate.” Petti, 666 So.2d at 758 (quoting Williams v. State, 583 So.2d 620, 622 (Miss.1991)).

¶ 37. The record reveals that Officer Wallace testified at the suppression hearing that when he arrived to the justice court judge’s residence, the justice court judge placed him under oath. Officer Wallace provided the justice court judge with a copy of the search warrants, as well as documents providing information as to Benitez’s apartment and his personal and government vehicles. Officer Wallace stated he also provided the judge the affidavit for the search warrants, with the typed underlying facts and circumstances. Officer Wallace testified that he watched the judge review these documents. Once under oath, Officer Wallace proceeded to orally advise the judge of the relevant facts and circumstances. Officer Wallace informed the justice court judge of Wright’s murder in D’Iberville and explained that Benitez, with whom Wright had an intimate relationship, was a suspect in the murder. Officer Wallace stated that Benitez lived in Rankin County, and Beni-tez admitted that he had visited Wright at her apartment on the day of the murder, and that he had driven his vehicle to and from her apartment. Officer Wallace explained that Benitez possessed both a government vehicle and a personal vehicle. Officer Wallace also informed the justice court judge that Benitez had a cut on his finger, which was significant because Wright had been stabbed to death. The record shows that the justice court judge possessed the affidavit for the search warrants that included the underlying facts and circumstances, as well as Officer Wallace’s oral statements, to support his finding of probable cause.

¶ 38. After hearing Officer Wallace’s testimony, as well as arguments from Ben-itez and the State, the trial judge denied the motion to suppress the evidence seized from the search of Benitez’s automobile and apartment, finding probable cause indeed existed to issue the search warrants. The trial judge explained:

[After] [considering the totality of the circumstances, this court find that the warrant was issued by a detached and neutral magistrate. The description of what was sought was specific to a reasonable certainty. The affidavit adequately described the area to be searched with sufficient [particularity], [and] the variance between the underlying facts and circumstances and the affidavit, the search warrant, and [Officer Wallace’s] supplement was not a material variance as to render the search warrant illegal.

¶ 39. On appeal, our review of the record also shows substantial evidence supporting the justice court and trial court’s determination that probable cause existed to issue the search warrants for Benitez’s vehicles and apartment. Accordingly, we find no abuse of discretion in the denial of Benitez’s motion to suppress the evidence from the search. See Cooper v. State, 93 So.3d 898, 900 (¶ 6) (Miss.Ct.App.2012) (appellate courts review a judge’s issuance of a warrant for whether the judge possessed a substantial basis for concluding that probable cause existed).

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

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

      . The Office of the Inspector General is an agency inside the Department of Homeland Security.

      . Both appellate briefs explain that this form is given to employees who are not in custody.

      . We recognize that the Legislature recently amended section 97-3-19(1)(a) in 2013 to classify deliberate-design murder as first-degree murder.

      . Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).