author: MAXWELL, J., for the Court: CARLTON, J.,

text:
    Gerald Heath HUDSON and Arthur Gerald Hudson, Appellant v. WLOX, INC., Appellee.
    No. 2010-CA-00743-COA.
    Court of Appeals of Mississippi.
    May 8, 2012.
    Rehearing Denied Oct. 80, 2012.
    Certiorari Denied Feb. 28, 2013.

      Jim Waide, attorney for appellant.
    Henry Laird, Samuel Trent Favre, attorneys for appellee.
   MAXWELL, J., for the Court:

¶ 1. The Mississippi Supreme Court has held pre-suit written notice is a prerequisite to filing a defamation suit against a television station. The aggrieved person must specify in his or her pre-suit notice letter (1) the particular telecast and (2) statements in the telecast alleged to be false and defamatory. Here, Gerald Heath Hudson (Heath) and Arthur Gerald Hudson (Gerald) sued WLOX, a Mississippi television station, for defamation. The Hudsons’ pre-suit notice letter specified two telecasts and alleged WLOX “ran a fictitious story” making three false claims: (1) the Hudsons “were not licensed contractors”; (2) “they had been sued for defective work”; and (8) “they had never been licensed contractors in Mississippi.” Their subsequent complaint brought the same allegations. The jury returned a verdict in favor of WLOX. The Hudsons appeal, arguing the circuit court erred in limiting the jury’s consideration to the three statements. We disagree.

¶ 2. Because notice is a prerequisite to filing suit, and because a required element of notice is the specification of the statements alleged to be false and defamatory, we find the circuit court correctly held the Hudsons were limited to proving the publication and falsity of statements substantially similar to those in their pre-suit notice letter and complaint. We find no error in the trial judge instructing the jury accordingly. Thus, we affirm the jury’s verdict in favor of WLOX.

FACTS AND PROCEDURAL HISTORY

¶ 3. Heath and Gerald, who are father and son, own H & H Construction. In 2005, they were framing a house for a relative, Wayne Fairley, when they got into a dispute with Fairley over nonpayment. They did not finish the framing job and filed a construction lien on the house.

¶ 4. A year later, when the Hudsons tried to foreclose on the lien, Fairley contacted a reporter for WLOX and claimed the Hudsons walked off the job after doing poor work. The reporter then called Heath, who told her Fairley’s story was false. On June 21, 2006, WLOX ran a story about Fairley’s dispute with the Hudsons. The report was part of a series exposing the questionable actions by contractors in the aftermath of Hurricane Katrina. After the report, Heath’s wife called the reporter who covered the story, insisting H & H was licensed. The reporter then interviewed Hudson’s wife and re-interviewed Fairley. A second report ran June 26, 2006.

¶ 5. On August 30, 2006, the Hudsons’ attorney sent WLOX a letter “concerning defamatory information, which you telecast ... approximately June l[sic], 2006.” The letter asserted WLOX “ran a fictitious story, claiming that [the Hudsons] were not licensed contractors, that they had been sued for defective work by Mr. Wayne Fairley and that they had never been licensed contractors in Mississippi.” The Hudsons’ attorney requested a copy of the initial report “as well as the retraction, which you ran the following Monday, June 5[sic], 2006.” He also asked WLOX to inform him “as to all reasons why you believe I should not commence suit against you for defamation.... ”

¶ 6. WLOX did not respond to this letter. On October 17, 2006, the Hudsons filed a complaint against WLOX for defamation. The complaint made the same allegations as the pre-suit notice letter: “Defendant, on June 21, 2006, telecast a story, indicating that [the Hudsons] were not licensed contractors, that [they] had been sued for defective work and that [they] had never been licensed contractors in Mississippi.”

¶ 7. The circuit court denied WLOX’s motion for summary judgment, which had argued the Hudsons were limited to proving the falsity of the statements made in the letter. However, it did grant WLOX’s motion in limine, limiting the jury’s consideration to the following statements in the letter and complaint:

“[The Hudsons] were not licensed contractors”;
“they had been sued for defective work by Mr. Wayne Failey”; and “they had never been licensed contractors in Mississippi.”

But the circuit judge separately instructed the jury that:

Plaintiffs are not required to prove that they used the exact language “were not licensed contractors” or “had been sued for defective work by Wayne Fairley.” They are only required to demonstrate that the Defendant made statements substantially the same as saying that Plaintiffs “were not licensed contractors” or substantially the same as saying they “had been sued for defective work by Wayne Fairley.”

(Emphasis added).

¶ 8. The jury returned a verdict in favor of WLOX. The Hudsons filed a motion for a new trial, arguing the trial court erred when it instructed the jury that the Hud-sons’ defamation claim was limited to the statements in the letter. After the trial court denied their motion, the Hudsons timely appealed.

DISCUSSION

¶ 9. The Hudsons’ appeal focuses on the pre-suit notice letter and its effect on their ability to bring a defamation suit against WLOX. The Hudsons argue the circuit court erred in limiting the jury’s consideration to the three statements in the pre-suit notice letter. While the Hudsons acknowledge the supreme court has held notice is required before filing suit, they claim the subsequent lawsuit is not limited to the allegations in the notice. Further, the Hudsons claim the supreme court in Brocato v. Mississippi Publishers Corp., 503 So.2d 241, 243 (Miss.1987) misinterpreted the pre-suit notice statute, Mississippi Code Annotated section 95-1-5(1) (Rev.2004). They argue the statute, correctly interpreted, was intended to bar only the recovery of punitive damages— and not a suit for actual damages — if pre-suit notice is not given.

I. Brocato and the Requirement of Pre-suit Notice

¶ 10. As a preliminary matter, we address the Hudsons’ argument the pre-suit notice statute has been wrongly interpreted. In Brocato, the supreme court held pre-suit written notice is a prerequisite to filing suit, not just to recovering punitive damages. Brocato, 503 So.2d at 243. The Hudsons suggest failure to comply with section 95-1-5(1) was intended to bar punitive damages only, not the ability to bring suit for compensatory damages. The Hudsons acknowledge this court lacks authority to overrule Mississippi Supreme Court precedent. Bevis v. Linkous Const. Co., 856 So.2d 535, 541 (¶ 18) (Miss.Ct.App.2003) (citation omitted). Even so, we are not convinced Brocato was wrongly decided.

¶ 11. In Brocato, the supreme court rejected the plaintiffs argument that the Legislature did not intend section 95-1-5 to be a prerequisite to filing suit. Instead, it found “the ten day notice required in § 95-1-5 is clearly a necessary preliminary step to the proper filing of a libel action.... ” Brocato, 503 So.2d at 243. “When the language of a statute is clear and unambiguous, the statute should be given its plain and obvious meaning.” Id. (citing Pinkton v. State, 481 So.2d 306, 309 (Miss.1985); MISS CAL 204, Ltd. v. Upchurch, 465 So.2d 326, 329 (Miss.1986)). And according to our supreme court, “the language of § 95 — 1—15[sic] is clear and unambiguous. ‘Before any civil action is brought for publication of a libel[,] the plaintiff shall, at least ten (10) days before instituting any such action, serve notice in writing on the defendant.’” Id. (quoting Miss.Code Ann. § 91-1-5(1)).

¶ 12. Brocato cited Florida’s interpretation of its similarly worded notice statute. Id. (citing Ross v. Gore, 48 So.2d 412, 415 (Fla.1950)). Like the Mississippi Supreme Court, the Florida Supreme Court held its “statute provides, in clear and unmistakable terms, that ... the giving of notice in writing is a condition precedent to suit.” Ross, 48 So.2d at 415.

¶ 13. A year after Brocato, the United States District Court for the Northern District of Mississippi relied on Brocato to hold “[t]he plain language of the statute requires that plaintiff must serve a demand for retraction before any civil action is filed against a newspaper[, radio, or television station] for libel.” Pannell v. Associated Press, 690 F.Supp. 546, 549 & n. 2 (N.D.Miss.1988). The district court expressly rejected the plaintiff’s argument “that the retraction statement affects only plaintiffs’ claim for punitive damages, not any claim for actual damages.” Id. at 549. Instead, Judge Senter reinforced Brocato’s holding: “Other jurisdictions with similar retraction statutes hold that a retraction demand is an absolute prerequisite to a cause of action for libel.” Id. (citing Nelson v. Associated Press, 667 F.Supp. 1468, 1473-75 (S.D.Fla.1987) (applying Fla. Stat. Ann. § 770.01)). See also Wisc. Stat. Ann. § 895.05(2) (also requiring written notice “[b]efore any civil action shall be com menced on account of any libelous publication in any newspaper, magazine or periodical”).

II. The Sufficiency of Pre-Suit Notice

¶ 14. Cases that have addressed section 95-1-5(1) have only considered whether notice was given at all, not whether the content of the notice was sufficient. Brocato, 503 So.2d at 242; Holmes v. TV-3, Inc., No. W91-0109 (BR), 1993 WL 328365, at *5-6 (S.D.Miss. May 27, 1993); Pannell, 690 F.Supp. at 548-50; Etheridge v. N. Miss. Commc’ns, Inc., 460 F.Supp. 347, 349 (N.D.Miss.1978). The Hudsons advocate that we apply the substantial-compliance approach adopted by the Mississippi Supreme Court when interpreting the Mississippi Tort Claims Act’s pre-suit notice statute, Mississippi Code Annotated section 11—46—11 (1)—(2) (Rev.2002). But even under a substantial-compliance approach, we find for notice to be sufficient it must specify the statements allegedly to be false and defamatory. And, in order to specify the statements, the notice must identify the alleged false and defamatory statements with sufficient particularity to enable the broadcaster to investigate the allegations and issue a retraction, if necessary.

A. Substantial-Compliance Approach

¶ 15. The Hudsons rely on the substantial-compliance approach, adopted by the Mississippi Supreme Court in Lee v. Memorial Hospital at Gulfport, 999 So.2d 1263, 1266-67 (¶¶9-13) (Miss.2008), to argue their pre-suit notice letter was sufficient to enable them to bring a defamation suit against WLOX based on the “overall tenor” of the two telecasts. In Lee, the supreme court held a pre-suit notice letter substantially complied with section 11-46-11(2), even though it did not include the plaintiff’s place of residence at the time of injury. Id. at 1267 (¶¶ 11-13). But the supreme court cautioned that Lee “should not be interpreted as holding that the required elements do not need to be explicitly stated in the notice of claim.” Id. at (The supreme court was careful to clarify: “While there may be some cases in which the claimant’s residence is a critical issue, clearly it was not in this case.” Id. at (¶ 12) (emphasis added).

¶ 16. The supreme court found the letter’s content—which included the circumstances which brought about the plaintiffs injury, the date and place her injuries occurred, the extent of her injuries, her medical damages, and all persons known to be involved—“fulfilled the purpose of the statute.” Id. (¶ 13). This purpose is “to insure that governmental boards, commissioners, and agencies are informed of claims against them. Such notice encourages entities to take corrective action as soon as possible when necessary; encourages pre-litigation settlement of claims; and encourages more responsibility by these agencies.” Id. at 1266 (¶ 9) (citation omitted). So under Lee’s substantial-compliance approach, a statutorily required element can be missing fi’om a pre-suit notice only when (1) the missing element is not a “critical issue,” and (2) the notice fulfilled the purpose of the statute. Id. at 1267 (¶¶ 12-13).

1. Section 95-1-5(1)

¶ 17. Applying the Lee approach, we ask: Does section 95-1-5 have any statutorily required elements that neither touch on critical issues nor are necessary to fulfill the statute’s purpose? See Lee, 999 So.2d at 1266-67 (¶9, ¶12). In contrast to section 11-46-11, section 95-1-5 has only two elements that must be provided in the notice—“[ (1) ] the article, broadcast or telecast, and [ (2) ] the statements therein ... allege[d] to be false and defamatory.” Miss.Code Ann. § 95-1-5(1) (emphasis added). According to the Hud-sons and the dissent, only the first element is necessary for substantial compliance. Under this view, as long as the telecast is merely identified, a plaintiff may bring a defamation suit based on any content and inferences from that telecast. We disagree with this approach and find the second explicit element of section 95-1-5 touches on a critical issue and is necessary to fulfill the purpose of the statute.

¶ 18. The allegedly false and defamatory statements are a critical issue because they comprise an essential element of a defamation claim. See Lee, 999 So.2d at 1267 (¶ 12). To establish a defamation claim, the Hudsons had to prove the following elements:

(1) a false and defamatory statement concerning them;
(2) unprivileged publication by WLOX to third party;
(3) fault amounting to at least negligence on part of the publisher, WLOX; and
(4) either actionability of the statement irrespective of special harm or the existence of special harm caused by publication.

Franklin v. Thompson, 722 So.2d 688, 692 (¶ 12) (Miss.1998) (citations omitted); cf. Chalk v. Bertholf, 980 So.2d 290, 296 (¶¶ 11-12) (Miss.Ct.App.2007) (looking to four elements of a defamation claim to determine whether plaintiffs sufficiently pled defamation under Mississippi Rule of Civil Procedure 8).

¶ 19. Like the MTCA’s pre-suit notice statute, the purpose of the defamation notice statute is to “encourage[ ] ... corrective action.” See Lee, 999 So.2d at 1266 (¶ 9).

This opportunity, given by the statute, to correct inadvertent errors prior to suit is, in our opinion, no more than fairly and justly commensurate with the opportunity to make the errors. Thus, if by retraction, the damage is completely off-set or so mitigated as not to warrant suit, the newspaper or periodical will oft-times be saved the annoyance and expense of answering the suit, as well as the opprobrium consequent even to an unfounded suit for libel.

Pannell, 690 F.Supp. at 550 (quoting Ross, 48 So.2d at 415); see also Nelson, 667 F.Supp. at 1475 (holding Florida’s pre-suit notice “statute is designed to allow a defendant the opportunity to be put on notice so as to take necessary steps to mitigate potential damages and perhaps avoid precisely the type of litigation now before the Court”). For a notice to fulfill this purpose-to have the broadcaster correct errors in order to mitigate damages and/or avoid suit-the notice has to communicate what information was erroneous. How else would a potential defendant have notice of the particularly defamatory portions of its telecast to investigate for retraction purposes?

2. The Hudsons’ Letter

¶20. The Hudsons assert their pre-suit notice letter sufficiently notified WLOX to make a reasonable investigation about the veracity of the “overall tenor” of both telecasts. But that is not what the Hudsons’ letter stated. Nor is it what section 95-1-5(1) requires. As discussed, the statute requires more than mere notice of what telecasts are defamatory. It also requires notice of what specific statements within the broadcast are erroneous and defamatory. Miss.Code Ann. § 95-1-5(1).

¶21. The Hudsons’ letter to WLOX specified the stories were untrue because the stories indicated the Hudsons were not licensed and had been sued for defective work. WLOX was not on notice to correct any other errors in the stories. Thus, we reject the Hudsons’ “overall tenor argument—as well as the position taken by the dissent—because it ignores the second requirement of section 95-1-5(1) and seeks to presents claims to the jury of which WLOX had no pre-suit notice.

B. Sufficiently Particular Notice

¶ 22. Because we hold compliance with section 95-1-5(1) requires the pre-suit notice letter to both specify the telecasts and the allegedly false and defamatory statements, we clarify what it means to “specify[ ] ... the statements.” Because Brocato looked to Florida’s interpretation of its notice statute for guidance, we find Florida law instructive on when a notice letter is sufficiently specific. Brocato, 503 So.2d at 243 (relying on Ross, 48 So.2d at 415); see also Pannell, 690 F.Supp. at 549-50 (discussing Nelson, 667 F.Supp. 1468; Ross, 48 So.2d at 415; Hulander v. Sunbeam Television Corp., 364 So.2d 845 (Fla.Ct.App.1978); Orlando Sports Stadium, Inc. v. Sentinel Star, 316 So.2d 607 (Fla.Ct.App.1975)).

¶ 23. Florida requires “the best possible notice[.]” Nelson, 667 F.Supp. at 1474. And determining what qualifies as best possible notice may depend on how the alleged defamatory statement was published. In Nelson, the court held a pre-suit notice letter was insufficient for only referencing the general content of a written news story because the plaintiff had the written stories in her possession “and could have specifically referred to them and quoted them verbatim in her notice[.]” Id. But in Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51, 55 (Fla.Dist.Ct.App.1982), the Florida Court of Appeals rejected the argument that a complaint for defamation based on an oral statement in a television broadcast had to set out the statement verbatim. Instead, it found “it is sufficient that the plaintiff set out [in the complaint] the substance of the spoken words with sufficient particularity to enable the court to determine whether the publication was defamatory.” Id.

¶ 24. Here, the allegedly defamatory statements were broadcast. Applying the best-possible-notice standard from Nelson and Nezelek, the Hudsons’ notice letter did not have to specify the allegedly false and defamatory statements verbatim. But best possible notice under section 95-1-5(1) did require the Hudsons to identify the substance of the spoken statements “with sufficient particularity to enable [WLOX] to determine whether the publication was defamatory.” Nezelek, 413 So.2d at 55; see Hulander, 364 So.2d at 846-47 (holding pre-suit letter demanding a “retraction of any allegations or innuendoes [sic] or intimidations [sic] of criminal conduct on the part of [the plaintiff!” had “failed to advise the broadcasting company with particularity as to which statements were false ... [because n]owhere in the retraction notice were the allegations, innuendos or intimations identified”).

¶ 25. The Hudsons’ pre-suit letter specified the false and defamatory substance of the broadcast was that the Hudsons were not and had never been licensed contractors in Mississippi and that they had been sued for defective work. Thus, the trial court correctly held the pre-suit notice was sufficient for the Hudsons to bring their defamation claim against WLOX based on these statements. And indeed, the Hud-sons brought this exact claim, alleging in their complaint: “Defendant, on June 21, 2006, telecast a story indicating that [the Hudsons] were not licensed contractors, that [they] had been sued for defective work and that [they] had never been licensed contractors in Mississippi.” The trial court correctly denied WLOX summary judgment, even though the Hudsons admitted the statements in their complaint — “[the Hudsons] were not licensed contractors”; “they had been sued for defective work by Mr. Wayne Failey”; and “they had never been licensed contractors in Mississippi” — were not literally used in the telecasts.

¶ 26. The dissent argues the trial court erred by looking to the language in the pre-suit notice letter and not the complaint to instruct the jury. But we point out the language from Jury Instruction D-6(a)(1) tracks the allegations in the complaint, which are almost identical to those in the pre-suit notice letter. The only difference between the pre-suit notice letter and the allegations in complaint is that the letter stated the telecasts “claim[ed]” the Hud-sons had been sued for defective work and were not licensed, while the complaint alleged the telecasts “indicat[ed]” the Hud-sons had been sued and were not licensed. We find this minor distinction immaterial.

¶ 27. Also, in finding reversible error in Jury Instruction D-6(a)(l), the dissent does not mention Jury Instruction P-23, in which the trial court instructed the jury: “Plaintiffs are not required to prove that they used the exact language ‘were not license contractors’ or ‘had been sued for defective work by Wayne Fairley.’” Instead, “they are only required to demonstrate that the Defendant made statements substantially the same [.]” (Emphasis added). See Boone v. Wal-Mart Stores, Inc., 680 So.2d 844, 845 (Miss.1996) (citation omitted) (instructing appellate courts to review the jury instructions “as a whole” to determine if they “fairly — although [maybe] not perfectly — announce the applicable primary rules of law”). Because the jury was instructed it could look beyond the exact language to determine if language substantially the same as the three statements was published and was false and defamatory, we find the trial court correctly instructed the jury on the scope of the Hudsons’ defamation claim, based on the substance of their pre-suit notice letter and their complaint.

¶ 28. Likewise, we find the trial court correctly held the pre-suit notice letter was insufficient for the Hudsons to sue based upon “any allegations or innuendos or intimations” from the telecasts that were not substantially similar to those provided in their pre-suit notice letter. Hulander, 364 So.2d at 847. To hold otherwise would render meaningless section 95-1—5(1)’s language requiring the plaintiff “specify! ] • • • the statements therein, which he alleges to be false and defamatory.” Miss.Code Ann. § 95-1-5(1).

CONCLUSION

¶ 29. The supreme court has held compliance with 95-1-5(1) is required in order to sue a television station for defamation and because specifying the statements alleged to be false and defamatory is required for substantial compliance with section 95-1-5(1). Thus, it stands to reason that failure to specify certain statements or allegations prevents being able to prove their publication, falsity, and defamatory nature in ensuing defamation suit — particularly in this case, where the complaint alleged the telecasts were false and defamatory for the very same reasons as the pre-suit notice letter. Because we find no reversible error in the trial court’s instructions, we affirm the jury’s verdict in favor of WLOX.

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

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, P.J., AND RUSSELL, J.

CARLTON, J.,

dissenting:

¶ 31. Because I would reverse and remand this case for a new trial due to an error in the trial court’s instructions to the jury, I respectfully dissent from the majority’s opinion.

¶ 32. The Hudsons argue that the trial court erred in instructing the jury and framing their claims for relief based upon the three specific statements from WLOX’s broadcast dissected from their pre-suit notice letter instead of framing their claims for relief based on their civil complaint. As discussed below, I submit that this Court must follow Mississippi Supreme Court precedent as set forth in Brocato v. Mississippi Publishers Corporation, 503 So.2d 241, 243 (Miss.1987), and its requirement of pre-suit notice. Interestingly, the record shows that the Hud-sons complied with this pre-suit notice requirement, and in response to a pretrial motion filed by WLOX, the trial court found the Hudsons’ pre-suit notice letter sufficient. Utilizing the substantial-compliance standard of review as articulated by the Mississippi Supreme Court in other cases addressing statutory pre-suit notice sufficiency, I concur with the trial court’s pretrial ruling and submit that the trial court properly determined that the Hud-sons provided WLOX with sufficient pre-suit notice as required by Mississippi Code Annotated section 95-1-5 (Rev.2004) when ruling on pretrial motions. See Price v. Clark, 21 So.3d 509, 520 (¶ 20) (Miss.2009) (discussing whether a notice-of-claim letter substantially complied with the statutory requirements of the Mississippi Tort Claims Act (MTCA)). The record reflects that, at trial, the trial court looked to the pre-suit notice letter instead of the civil complaint when framing the jury instructions and the Hudsons’ claims for relief. I find merit to the Hudsons’ allegations that the trial court erred in granting Jury Instruction D-6(a)(1).

A. STATUTORY PRE-SUIT NOTICE

¶ 33. The Hudsons request that this Court overrule Brocato and its determination'that section 95-1-5 requires pre-suit notice as a condition precedent to filing suit. The Hudsons’ request is unnecessary because the Hudsons sufficiently complied with the statutory pre-suit notice requirements of section 95-1-5. As noted, when ruling on pretrial motions, the trial court found that the Hudsons indeed complied with the pre-suit statutory notice requirement, and I find no error in the trial court’s determination. I turn to review the trial court’s ruling on the sufficiency of the pre-suit notice letter.

¶ 34. In its order denying the motion for summary judgment filed by WLOX on this issue, the trial court stated, in part, as follows:

On October 17, 2006, [pjlaintiffs filed a[c]omplaint alleging damages for defamation and malicious interference with business due to a story [djefendant aired on June 21, 2006. Prior to filing the [cjomplaint, [pjlaintiffs’ counsel sent [djefendant a letter dated August 30, 2006, which specified the defamatory remarks allegedly made by [djefendant. Defendant now moves for summary judgment and argues this letter does not comply with [Mississippi Code Annotated section] 95-1-5.
Under [section] 95-1-5, plaintiffs] must, at least ten days before instituting any civil action, serve notice in writing on ... defendant at its regular place of business, specifying the article, broadcast, or telecast, and the statements therein, which he alleges to be false and defamatory. Upon review, this [cjourt finds the letter of August 30, 2006[,J meets the requirements of [section] 95-1-5. Thus, [djefendant’s motion for summary judgment should be denied.

¶35. After reviewing the record and utilizing the standard of review applicable to statutory pre-suit notice set forth by Mississippi precedent, I find no error in the trial court’s determination that the Hudsons provided sufficient statutory notice in this case. Regarding sufficiency of statutory notice in the context of various statutes, the supreme court has stated:

Where a claimant does provide written notice, we have adhered to the principle that substantial compliance is the standard for analyzing the contents of the notice to determine its sufficiency. Sufficient information must be contained in the notice to permit the recipient to make a reasonable investigation of the claims being made.

Arceo v. Tolliver, 19 So.3d 67, 72 (¶ 17) (Miss.2009) (internal citations omitted). In this case, the trial court explained in its findings that the Hudsons provided WLOX with sufficient written notice of their defamation claim, referencing the defamatory assertions, on August 30, 2006. The Hud-sons subsequently filed their complaint against WLOX on October 17, 2006 — easily satisfying the ten-day requirement. During oral argument, WLOX also admitted that no confusion existed as to which broadcast or complainant was at issue.

B. JURY INSTRUCTION

¶ 36. Jury Instruction D-6(a)(l) framed the Hudsons’ claims for relief based on the pre-suit letter instead of the claims raised in their complaint. The trial court required the Hudsons to prove that WLOX expressly made three allegedly defamatory statements, or substantially similar statements, dissected from the Hudsons’ pre-suit notice letter, without allowing the jury to consider any other false statements in the broadcast. However, the Hudsons’ complaint asserted claims for relief for defamation “indicated” by WLOX’s broadcast. Civil complaints must comply with Rule 8 of the Mississippi Rules of Civil Procedure, and the factfinder must consider the statements in the context of the broadcast as a whole to determine whether the defamation occurred. See Journal Publ’g Co. v. McCullough, 743 So.2d 352, 360 (¶ 24) (Miss.1999). However, Jury Instruction D — 6(a)(1) precluded the jury from considering the broadcast as a whole and in context. The Hudsons were entitled to have the jury properly instructed as to their claims for relief.

¶ 37. Mississippi courts have held that sufficiency of a complaint is a question of law. I find that the Hudsons’ defamation action survived a pretrial motion for summary judgment and a motion for directed verdict at trial. See State v. Bayer Corp., 32 So.3d 496, 502-03 (¶ 21) (Miss.2010); Robison v. Enter. Leasing Co.—S. Cent. Inc., 57 So.3d 1, 2 (¶ 4) (Miss.Ct.App.2010). The Mississippi Supreme Court has overruled pre-rules cases regarding sufficiency of claims for relief pled in the complaint. Bluewater Logistics, LLC v. Williford, 55 So.3d 148, 158 (¶ 37) (Miss.2011). In Bluewater Logistics, the supreme court affirmed the notice-pleading standards of the Mississippi Rules of Civil Procedure. Id. at 157-58 (¶¶ 35-36).

¶ 38. Mississippi Rule of Civil Procedure 8 sets forth the general rules of pleading and only requires a “short and plain statement of the claim showing that the pleader is entitled to relieff.]” The appellate court must bear in mind “that the promulgation of Rule 8 was intended to lessen the pleading requirements so that a plaintiffs rights ‘are not lost by poor drafting sills of counsel.’ ” Chalk v. Bertholf, 980 So.2d 290, 296 (¶ 13) (Miss. Ct.App.2007) (quoting M.R.C.P. 8 cmt.). “Rule 8 abolishes many technical requirements of pleadings[; however,] it does not eliminate the necessity of stating circumstances, occurrences, and events which support the proffered claim.” Id. (citation omitted).

¶ 89. In Chalk, this Court addressed the issue of whether a party’s complaint alleging defamation pleaded sufficient detail pursuant to Rule 8. Id. at 296-97 (¶ 14). The Chalk court, relying upon federal guidance, stated:

Mississippi federal courts have examined our state law and ruled on the matter of pleading requirements in a suit for defamation on several occasions. Quite consistently, these courts have found that Mississippi law requires that a complaint for defamation must provide allegations of sufficient particularity so as to give the defendant or defendants notice of the nature of the complained-of statements.

Id. at 297 (¶ 14). The Chalk court further provided that defamation complaints should set forth the following information: the statements made, paraphrased or verbatim; to whom the statements were directed; by whom the statements were made; and how the statements were slanderous. Id. at 298 (¶ 18). Clearly, neither Rule 8 nor pre-rule precedent have ever required defamation to be pleaded verbatim or restricted a jury’s consideration of the context of a broadcast.

¶ 40. In framing the jury instructions, the trial court looked to the statements identified in the Hudsons’ pre-suit letter instead of their complaint, and the court instructed the jury not to consider whether any other statements in the broadcast were false and defamatory. Jury Instruction D-6(a)(1) thus prohibited the jury’s consideration of context and the broadcast as a whole. See McCullough, 743 So.2d at 860 (¶ 24). Therefore, the trial court erred by improperly limiting the jury’s consideration.

¶ 41. Furthermore, the Mississippi Supreme Court also has recognized that “the overall tone or structure of a story may so distort the truth as to make the underlying implication of the story false, even where no material omissions are involved.” Id. at (¶ 27) (citation omitted); see also Church of Scientology of Calif. v. Flynn, 744 F.2d 694, 696 (9th Cir.1984) (“It is well settled that the ‘arrangement and phrasing of apparently non[-]libelous statements’ cannot hide the existence of a defamatory meaning. Indeed, the meaning of a statement is often dependent upon its context.” (Internal citation omitted)); Eselin-Bullock & Assocs. Ins. Agency, Inc. v. Nat’l Gen. Ins. Co., 604 So.2d 236, 241 (Miss.1992) (question of what is or is not implied by allegedly defamatory statements is a question of fact for jury); Hudson v. Palmer, 977 So.2d 369, 385 (¶47) (Miss.Ct.App.2007) (“[T]he relevant inquiry is whether the statement could be reasonably understood as declaring or implying a provable assertion of fact.”).

1142. The pertinent parts of the Hud-sons’ complaint provide as follows:

4. In late May 2006, a false complaint was made to the [defendant from an unreliable source!;] complaint was made maliciously, because the source for the story (Mr. Wayne Fairley) was simply making the complaint because he had declined to pay a bill. Mr. Fairley had become involved in a contract dispute with [plaintiffs, when Mr. Fairley had terminated [plaintiffs’ construction contract and himself dealt directly with subcontractors working under [plaintiffs.
5. Prior to running the story, the [defendant’s agent, A.J. Guardinia, [sic] personally spoke with Gerald Heath Hudson and was told that the story that he was about to run was false. Nevertheless, the [defendant proceeded to run the story, because it wished to run a sensational story regarding improper contract work, so as to attract viewers. The [defendant was willfully indifferent to the [p]laintiff Gerald Heath Hudson’s attempt to correct the story.
6. Thereafter, through gross negligence and without making an appropriate investigation, the [defendant, on June 21, 2006, telecast a story, indicating that [p ]laintijfs were not licensed contractors, that [p ]lain-tiffs had been sued for defective work [,] and that [p]laintijfs had never been licensed contractors in Mississippi
7. Plaintiffs have given the ten[-]day notice required by Mississippi Code Annotated [section] 95-1-5 and this notice is attached as Exhibit “1.”

(Emphasis added).

¶ 43. The Hudsons alleged in their complaint that WLOX’s broadcast “implied” the defamatory assertions of fact with gross negligence and willful indifference so as to attract viewers. “Parties have the right to ‘embody their theories of the case in the jury instructions provided there is testimony to support it.’” APAC Miss., Inc. v. Johnson, 15 So.3d 465, 476 (¶ 26) (Miss.Ct.App.2009) (quoting Reese v. Summers, 792 So.2d 992, 994 (¶ 4) (Miss.2001)). Also, the plaintiff is entitled to have the jury properly instructed on the law. See Simmons v. Strickland, 76 So.3d 178, 182 (¶ 21) (Miss.Ct.App.2011).

¶ 44. Keeping this standard of review in mind, I submit that the trial court erred by granting Jury Instruction D-6(a)(1), resulting in an improperly instructed jury. Jury Instruction D-6(a)(1) provides as follows:

The [c]ourt instructs the jury that the [p]laintiffs, in order to recover against the [defendant, WLOX, must prove by a preponderance of the evidence that the language complained [of], as published by WLOX[,] was false and defamatory.
The [c]ourt further instructs the jury that if the [plaintiffs fail to prove by a preponderance of the evidence that the following statements allegedly broad-casted by WLOX were both false and defamatory, then it is your sworn duty as jurors to return your verdict in favor of the [defendant, WLOX:
“were not licensed contractors”;
“they had been sued for defective work by Mr. Wayne Fairley”; or
“they had never been licensed contractors in Mississippi[.”]
In reaching your verdict, you are not to consider whether any other words or language [p plaintiffs claim WLOX broadcasted were false and defamatory.

(Emphasis added). While WLOX correctly argues that defamation must be clear and not from speculation or conjecture, the jury instructions given by the trial court in this ease erroneously precluded the jury’s consideration of the statements in the context of the broadcast as a whole. The law does not limit defamation to only expressly stated assertions of fact but instead recognizes that defamatory facts may be implied assertions of fact. See McCullough, 743 So.2d at 360 (¶ 24); Ward v. Zelikovsky, 136 N.J. 516, 643 A.2d 972, 981 (1994); Alianza Dominicana, Inc. v. Luna, 229 A.D.2d 328, 645 N.Y.S.2d 28, 30 (N.Y.App.Div.1996) (courts must consider the full context of communication in which the statement appears including surrounding circumstances that signal readers or listeners that what is being read or heard is likely opinion, not fact); New Times, Inc. v. Isaacks, 146 S.W.3d 144, 158 (Tex.2004).

¶ 45. Based on the foregoing, I would reverse and remand this case for a new trial.

IRVING, P.J., AND RUSSELL, J., JOIN THIS OPINION.

      . Brocato v. Miss. Publishers Corp., 503 So.2d 241, 243 (Miss.1987).

      . Miss.Code Ann. § 95-1-5(1) (Rev.2004).

      . Mississippi Code Annotated section 95-1-5 states in its entirety:
      (1) Before any civil action is brought for publication, in a newspaper domiciled and published in this state or authorized to do business in Mississippi so as to be subject to the jurisdiction of the courts of this state, of a libel, or against any radio or television station domiciled in this state, the plaintiff shall, at least ten (10) days before instituting any such action, serve notice in writing on the defendant at its regular place of business, specifying the article, broadcast or telecast, and the statements therein, which he alleges to be false and defamatory-
      (2) If it appears upon the trial that said article was published, broadcast or telecast in good faith, that its falsity was due to an honest mistake of the facts, and there were reasonable grounds for believing that the statements in said article, broadcast or telecast were true, and that within ten (10) days after the service of said notice a full and fair correction, apology and retraction was published in the same edition or corresponding issues of the newspaper in which said article appeared, and in as conspicuous place and type as was said original article, or was broadcast or telecast under like conditions correcting an honest mistake, and if the jury shall so find, the plaintiff in such case shall recover only actual damages. The burden of proof of the foregoing facts shall be affirmative defenses of the defendant and pled as such.
      (3)This section shall not apply to any publication concerning a candidate for public office made within ten (10) days of any primary, general or special election in which such candidate's candidacy for or election to public office is to be determined, and this section shall not apply to any editorial or to any regularly published column in which matters of opinions are expressed.

      . Florida Statutes Annotated section 770.01 (2011) states:

        Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.
      (Emphasis added).

      . Section 11-46-11(2) specifically requires:
      Every notice of claim required by subsection (1) of this section shall be in writing, and shall be delivered in person or by registered or certified United States mail. Every notice of claim shall contain a short and plain statement of the facts upon which the claim is based, including the circumstances which brought about the injury, the extent of the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought and the residence of the person making the claim at the time of the injury and at the time of filing the notice.

      . In Nezelek, the Florida Court of Appeals receded from Hulander to the extent its holding barred single amendment of pre-suit notice letter. Nezelek, 413 So.2d at 57.

      . Cf. Chalk, 980 So.2d at 298-299 (¶ 18-19) (holding the plaintiffs failed to plead a sufficient defamation claim under Rule 8 partly because the complaint did not "provide any substance regarding the allegedly slanderous words”).

      . “This Court, sitting as an intermediate appellate court, is bound by established precedent as set out by the Mississippi Supreme Court and we do not have the authority to overrule the decisions of that court.” Bevis v. Linkous Constr. Co., 856 So.2d 535, 541 (¶ 18) (Miss.Ct.App.2003) (citation omitted).

      . The record shows that various judges presided over this case during the pretrial and trial phases: Judge Jerry O. Terry presided over the pretrial motion for summary judgment as to the sufficiency of the pre-suit notice, and Judge John C. Gargiulo presided over the trial.

      . Pre-suit notice in a defamation case is clearly required by section 95-1-5, which provides, in pertinent part, as follows:
      (1) Before any civil action is brought for publication, in a newspaper domiciled and published in this state or authorized to do business in Mississippi so as to be subject to the jurisdiction of the courts of this state, of a libel, or against any radio or television station domiciled in this state, the plaintiff shall, at least ten (10) days before instituting any such action, serve notice in writing on the defendant at its regular place of business, specifying the article, broadcast or telecast, and the statements therein, which he alleges to be false and defamatory-
      (2) If it appears upon the trial that said article was published, broadcast or telecast in good faith, that its falsity was due to an honest mistake of the facts, and there were reasonable grounds for believing that the statements in said article, broadcast or telecast were true, and that within ten (10) days after the service of said notice a full and fair correction, apology and retraction was published in the same edition or corresponding issues of the newspaper in which said article appeared, and in as conspicuous place and type as was said original article, or was broadcast or telecast under like conditions correcting an honest mistake, and if the jury shall so find, the plaintiff in such case shall recover only actual damages. The burden of proof of the foregoing facts shall be affirmative defenses of the defendant and pled as such.

      . See Price, 21 So.3d at 520 (1120) (finding that the law requires substantial compliance, not strict compliance, with statutory notice requirements).

      . WLOX filed several pretrial motions for summary judgment, all of which were denied by the trial court.

      . As recognized in Arceo, the Mississippi Supreme Court has repeatedly applied the same standards for evaluating statutory notice to the Medical Malpractice Tort Reform Act and the MTCA. Arceo, 19 So.3d at 71-72 (¶¶ 16-17). See also Price, 21 So.3d at 520 (¶ 20) (finding that substantial compliance, not strict compliance, is the applicable standard for addressing whether the contents of a notice-of-claim letter complied with the MTCA); Lee v. Mem'l Hosp. at Gulfport, 999 So.2d 1263, 1266-67 (¶¶ 9-13) (Miss.2008) (finding statutory notice required under the MTCA as to delivery of notice and contents of notice, while not a question of fact, but one of law, is a fact-sensitive question).

      .In order to establish a defamation claim, an ordinary plaintiff is required to show the following: (1) “a false and defamatory statement concerning the plaintiff”; (2) "an unprivileged publication to a third party”; (3) "fault amounting at least to negligence on the part of the publisher”; and (4) "either action-ability of the statement irrespective of special harm or the existence of special harm caused by the publication.” McCullough, 743 So.2d at 359(¶ 22). "This Court has described a defamatory statement as 'any written or printed language which tends to injure one’s reputation, and thereby expose him to public hatred, contempt or ridicule, degrade him in society, lessen him in public esteem or lower him in the confidence of the community.’ ” Id. at 360 (¶ 24) (quoting Fulton v. Miss. Publishers Corp., 498 So.2d 1215, 1217 (Miss.1986)). "The words employed must have clearly been directed toward the plaintiff, and the defamation must be clear and unmistakable from the words themselves and not be the product of innuendo, speculation or conjecture.” Id. (citation omitted). Additionally, the headline or portions of the story "must be considered together and construed as a whole.” Id.

      . See APAC Miss., Inc. v. Johnson, 15 So.3d 465, 476 (¶ 26) (Miss.Ct.App.2009).

      . The record reflects no pretrial motions by WLOX to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Mississippi Rules of Civil Procedure.

      . See generally Long v. McKinney, 897 So.2d 160 (Miss.2004) (acknowledging Mississippi Supreme Court’s authority to promulgate procedural rules applicable in civil cases in state courts and stating that sufficiency of a complaint constitutes a question of law).

      . See TracFone Wireless, Inc. v. Carson, No. 3:07-CV-1761-G, 2008 WL 4107584, at *9 (N.D.Tex. August 28, 2008) ("Although federal courts do not require parties to ‘set forth allegedly defamatory statements en haec ver-bis,' such allegations must 'afford the other party sufficient notice of the communications complained of to enable him to defend himself.' ”).

      . See also Roussel v. Robbins, 688 So.2d 714, 723 (Miss.1996); Joyner v. Wear, 665 So.2d 634, 638 (La.Ct.App.1995) (The question of whether communication is defamatory is answered by determining whether "a listener could have reasonably understood the communication, taken in context, to have been intended in a defamatory sense.”). See also 50 Am.Jur.2d Libel & Slander § 107 (2006); Restatement (Second) of Torts § 566 (1977).

      . In its answer to paragraph five of the Hud-sons' complaint, WLOX admitted that Giardi-na and Heath spoke with each other, but WLOX denied the other allegations regarding the conversation. WLOX also admitted in its answer to paragraph six of the Hudsons' complaint that it telecast a news story on or about June 21, 2006, but WLOX denied the remainder of the allegations in paragraph six.

      . See Chalk, 980 So.2d at 296 (¶ 12); Hayne v. The Innocence Project, No. 3:09-CV-218-KS-LRA, 2011 WL 198128, at *9 (S.D.Miss. Jan. 20, 2011); Perry v. Sears, Roebuck, and Co., No. 1:09CV260-SA-JAD, 2010 WL 1427334, at *2 (N.D.Miss. April 8, 2010).

      . See Hudson, 977 So.2d at 385 (¶ 47).


source: Caselaw Access Project

author: RUSSELL, J.,

license: Public Domain

text:
    Jeffrey PARKMAN a/k/a Jeffrey D. Parkman, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KM-00723-COA.
    Court of Appeals of Mississippi.
    June 19, 2012.
    Rehearing Denied Nov. 27, 2012.
    Certiorari Denied Feb. 28, 2013.

      Kevin Dale Camp, Jackson, John Michael Duncan, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Jeffrey Parkman appeals his conviction of driving under the influence (DUI), first offense. This case concerns the admissibility of Parkman’s intoxilyzer test results. Specifically, Parkman argues that the results were inadmissable because (1) the officer did not observe Parkman for twenty minutes prior to administering the test; (2) the person charged with calibrating the machine did not testify, violating Parkman’s Sixth Amendment right to confrontation; and (3) the State failed to produce certificates of calibration. Therefore, Parkman argues that his conviction should be reversed. Upon review, we find no error and therefore affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 1, 2009, at approximately 5:07 a.m., Parkman approached a safety checkpoint at highway 1-20 at the 54 eastbound off-ramp inside the city limits of Brandon. Parkman was stopped by Officer Chad Maclain, who observed Parkman swerving across the road. Officer Maclain asked Parkman for his identification and proof of insurance. As the two were speaking, Officer Maclain detected an odor of alcohol. As a result, Officer Ma-clain asked Parkman to pull off the road so that he could investigate further. Officer Maclain then asked Parkman whether he had been drinking, and Parkman stated his last drink was at approximately 5:00 pm. the previous day. Officer Maclain also asked Parkman whether he had any alcohol in the vehicle, and Parkman stated he had an open bottle of vodka. There was also a cup of orange juice in plain view that smelled of alcohol. Officer Maclain asked Parkman what was in the drink, and Parkman admitted the cup contained orange juice and vodka. Officer Maclain asked Parkman if he would submit a breath sample into the preliminary breath test (PBT) machine, and Parkman consented. Parkman tested positive for the presence of alcohol in his system.

¶ 3. Officer Maclain testified that at approximately 5:29 a.m., he placed Parkman under arrest for driving under the influence, careless driving, and possession of alcohol. He then transported Parkman to the Brandon Police Department, where Parkman gave two breath samples into the Intoxilyzer 8000 machine. Officer Maclain further stated that they were on their way to the Brandon Police Department at 5:29 a.m. Shortly after arriving at the station, Officer Maclain started the intoxilyzer test at 5:40 a.m., and two samples were obtained from Parkman. The first sample was obtained at 5:47 a.m., when Parkman’s blood-alcohol content (BAC) registered .135. The second sample — the one used to convict Parkman — was obtained at 5:49 a.m., when Parkman’s BAG registered .129.

114. On June 23, 2010, Parkman entered a plea of nolo contendré in the Brandon Municipal Court. He appealed his conviction to the County Court of Rankin County. On October 14, 2010, the county court judge held a de novo bench trial and found Parkman guilty of driving under the influence, first offense, and careless driving. Parkman filed a motion for JNOV, which was denied. Parkman appealed to the Circuit Court of Rankin County, which affirmed. He timely appealed to this Court.

DISCUSSION

¶ 5. “The standard of review regarding the admission or exclusion of evidence is abuse of discretion.” Hudspeth v. State, 28 So.3d 600, 602 (¶5) (Miss.Ct.App.2009) (quoting Morris v. State, 963 So.2d 1170, 1175 (1115) (Miss.Ct.App.2007)). “[Ajbsent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal.” Id. (quoting McCoy v. State, 820 So.2d 25, 31 (¶ 15) (Miss.Ct.App.2002)).

I. Whether the officer failed to observe Parkman for twenty minutes prior to administering the Intoxi-lyzer 8000 test.

¶ 6. Parkman argues that Officer Ma-elain failed to observe him for twenty continuous minutes prior to administering the Intoxilyzer 8000 test. Mississippi Code Annotated section 63-11-5(1) (Rev.2004) states that “[n]o such tests shall be given by any officer or any agency to any person within fifteen (15) minutes of consumption of any substance by mouth.” However, a twenty-minute observation period is required under the Mississippi Department of Public Safety’s guidelines and the Intox-ilyzer 8000 Implied Consent Policies and Procedures manual:

According to the Mississippi Department of Public Safety’s guidelines and the Intoxilyzer 8000 Implied Consent Policies and Procedures manual, a twenty-minute observation period is required immediately before a breath sample is taken. The glossary to this manual defines observation period as follows: “A period during which the person being tested has been observed to determine that he has not ingested alcohol or other fluids, regurgitated, vomited, eaten, smoked, or placed anything into his mouth in the 20 minutes immediately prior to the collection of a breath sample.”

Hudspeth, 28 So.3d at 602 (¶ 6). Further, our supreme court has stated the following:

The length of time that a person charged with driving under the influence must be observed prior to the administration of the breath test is mandatory. In Mississippi, by statute, that length of time is fifteen minutes; however, police procedure requires that the person be observed for twenty minutes. The observation itself can be performed as long as the defendant is in the presence of the officer. The officer is not required to stare at the defendant for the observation to be effective. A dispute as to whether the observation lasted the mandatory length of time or whether the observation was performed while in the presence of an officer goes to the weight of the testimony and the credibility of the witnesses.

Fisher v. City of Eupora, 587 So.2d 878, 882 (Miss.1991).

¶ 7. Here, Officer Maclain stopped Parkman at 5:07 a.m. Officer Maclain testified that they were en route to the Brandon Police Department at 5:29 a.m., and the intoxilyzer test that was the basis of Parkman’s DUI charge was given at 5:49 a.m. While Officer Maclain did testify that he spoke with the tow-truck driver prior to departing the safety-checkpoint location, our supreme court has held that an “officer is not required to stare at the defendant for the observation to be effective.” Id. Further, when asked whether he had observed Parkman for more than twenty minutes, Officer Maclain answered affirmatively. This issue is without merit.

II. Whether the State was required to produce certificates of calibration.

¶ 8. Parkman contends that the county court erred by allowing the results of the Intoxilyzer 8000 into evidence because the certification of calibration was never introduced into evidence. However, counsel for Parkman moved to exclude the Intoxilyzer 8000 test results from evidence based on the Confrontation Clause — not because the State failed to produce certificates of calibration. Further, upon a review of the record, counsel for Parkman never raised the issue of calibration certificates.

¶ 9. Parkman is raising “an error on appeal different from that raised at the trial level.” Jones v. State, 606 So.2d 1051, 1058 (Miss.1992). “A defendant is procedurally barred from raising an objection on appeal that is different than that raised at trial.” Id. Further, “[a] trial judge will not be found in error on a matter not presented to him for decision.” Id. (citing Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988)). This issue is procedurally barred.

III. Whether Parkman’s Sixth Amendment right to confrontation was violated where the person charged with calibrating the machine did not testify.

¶ 10. In a 2011 decision, this Court considered the exact issue raised by Parkman: “whether, for the proper admission of intoxilyzer calibration records, the Confrontation Clause requires the person who calibrated the intoxilyzer to testify.” Matthies v. State, 85 So.3d 872, 874 (¶ 5) (Miss.Ct.App.2011). We determined that intoxilyzer calibration records are nontesti-monial in nature; therefore, “the Confrontation Clause does not require the testimony of their preparer.” Id. at 873 (¶ 1). Subsequently, our supreme court granted Matthies’s petition for writ of certiorari. Matthies v. State, 76 So.3d 169 (Miss.2011). Our supreme court affirmed, holding that “records pertaining to intoxilyzer inspection, maintenance, or calibration are indeed nontestimonial in nature, and thus, their admission into evidence is not viola-tive of the Confrontation Clause of the Sixth Amendment.” Matthies v. State, 85 So.3d 838, 844 (¶ 19) (Miss.2012). This issue is without merit.

IV. Whether the State met its burden of proving guilt beyond a reasonable doubt.

¶ 11. Because we have determined that, based on current precedent, the intoxilyzer results were properly admitted into evidence, we find that the State met its burden of proving Parkman’s guilt beyond a reasonable doubt. Therefore, we affirm the judgment of the circuit court.

¶ 12. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF FORTY-EIGHT HOURS IN THE RANKIN COUNTY JAIL TO BE SUSPENDED IN ITS ENTIRETY, AND TO PAY A $1,000 FINE PLUS COSTS AND ASSESSMENTS, WITH $200 OF SAID FINE TO BE SUSPENDED AND $800 TO BE PAID, AND TWO YEARS OF UNSUPERVISED PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.

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


text:
    Christopher R. SMITH a/k/a Chris Smith/Christopher Anderson a/k/a Christopher Smith, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00572-COA.
    Court of Appeals of Mississippi.
    July 24, 2012.
    Rehearing Denied Nov. 27, 2012.
    Certiorari Denied Feb. 28, 2013.

      Christopher R. Smith, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Christopher Smith appeals the Hinds County Circuit Court’s order denying his motion for post-conviction relief (PCR). Smith argues that he received ineffective assistance of counsel, and that his thirty-year sentence as a habitual offender was illegal. Upon review, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2001, Smith was convicted of armed carjacking in the Hinds County Circuit Court. The circuit court sentenced him as a habitual offender to thirty years’ imprisonment -without parole. On direct appeal, our supreme court affirmed Smith’s conviction and sentence.

¶ 3. On March 28, 2008, Smith filed a motion for leave to file a PCR motion in the circuit court. There is nothing to indicate that this motion was ever directly filed with the Mississippi Supreme Court. Instead, it appears that the circuit court forwarded the motion for leave to file a PCR motion to our supreme court.

¶ 4. Thereafter, no action was taken for some time. Then, on April 3, 2009, Smith filed a petition for a writ of mandamus or for an order to show cause with our supreme court. Smith alleged that he had previously filed a motion for reconsideration, and sought an order from our supreme court requiring the circuit court to rule on that motion. However, no motion for reconsideration was ever filed. Instead, it appears that Smith was referring to his motion for leave to file a PCR motion.

¶ 5. On May 27, 2009, the circuit court entered an order in response to a writ from the supreme court. That order states that Smith “did not actually filed a[m]otion for [r]econsideration.” The order further reads, in relevant part, as follows:

The [pjetition for [w]rit [of mandamus] states the [m]otion for [reconsideration was “in regards to a revocation proceeding.” This [c]ourt does not find that a revocation proceeding ever took place as can be seen by the sentence. Smith was sentenced to thirty years, in 2003, without the possibility of parole. So, ... no revocation proceeding of any type would have taken place as to this date.

¶ 6. On June 15, 2009, our supreme court entered an order granting Smith’s petition for writ of mandamus. That order states, in pertinent part:

In his petition, Smith states that he filed a “[m]otion for [reconsideration” that is still pending in the trial court. However, the trial court motion attached to his petition is his application for post-conviction relief. This Court called for a response from the trial judge. The trial judge acknowledged the application for post-conviction relief[,] but no ruling on that motion is apparent. The trial judge states only that no “[m]otion for Reconsideration” is now pending. After due consideration, the panel finds the petition should be granted and that the trial court should be required to enter a ruling on Smith’s application for post-conviction relief within thirty days of entry of this order.
IT IS THEREFORE ORDERED that the [p]etition for [w]rit of [mjandamus filed pro se by [Smith] is granted.

¶ 7. On June 25, 2009, the circuit court entered an order denying Smith’s PCR motion, finding that his claims of ineffective assistance of counsel and illegal sentence were without merit. On July 23, 2009, Smith filed a notice of appeal from the June 25, 2009 order denying his PCR motion. Also on July 23, 2009, Smith filed a motion to proceed in forma pauperis in the circuit court.

¶ 8. On November 11, 2009, Smith filed a motion for a contempt citation or for an order directing the record be filed. On January 5, 2010, this Court entered an order dismissing Smith’s motion for contempt or for order directing the record be filed.

¶ 9. On June 18, 2010, Smith filed a petition for a writ of mandamus or for an order to show cause regarding his motion to proceed in forma pauperis. On August 2, 2010, this Court entered an order on Smith’s petition for writ of mandamus and remanded the case to the circuit court to render a judgment or conduct an eviden-tiary hearing on the motion to proceed in forma pauperis.

¶ 10. On August 26, 2010, Smith filed a motion to clarify the status of his appeal and to require the trial court to rule on his motion to proceed in forma pauperis. On August 30, 2010, this Court entered an order denying Smith’s motion to clarify.

¶ 11. On September 13, 2010, Smith filed a second motion in the circuit court to proceed in forma pauperis on appeal. On November 16, 2010, the circuit court entered an order granting Smith’s second motion to proceed in forma pauperis on appeal.

DISCUSSION

¶ 12. “A circuit court’s dismissal of a motion for post-conviction collateral relief will not be reversed on appeal absent a finding that the circuit court’s decision was clearly erroneous.” Willis v. State, 66 So.3d 740, 742 (¶ 7) (Miss.Ct.App.2011) (citing Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004)). “However, when reviewing issues of law, this Court’s proper standard of review is de novo.” Id. at 743 (¶ 7) (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)).

¶ 13. We note at the outset that when a defendant’s conviction and sentence have been affirmed on direct appeal, the defendant must obtain permission from our supreme court before filing a PCR motion in the circuit court. See Miss.Code Ann. § 99-39-7 (Supp.2011). In this case, Smith’s conviction and sentence were affirmed on direct appeal. Smith then filed a motion for leave to file a PCR motion, but he filed it in the circuit court instead of the supreme court. It appears from the record that the circuit court forwarded Smith’s motion to the supreme court. We have searched the record and have been unable to find an order from our supreme court granting Smith leave to file a PCR motion. However, based on the supreme court’s order directing the circuit court to rule on Smith’s PCR motion, along with the subsequent actions taken by the circuit court, it seems that leave to file the PCR motion was presumed to have been granted by our supreme court. Therefore, notwithstanding some procedural doubt, we will address the merits of Smith’s PCR appeal.

I. Whether Smith received ineffective assistance of counsel.

¶ 14. Smith argues that he received ineffective assistance of counsel. “To prove ineffective assistance of counsel, [a defendant] must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense.” Willis, 66 So.3d at 745 (¶ 21) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “The burden of proof rests on [the defendant] to show both prongs.” Id. (citing McQuarter v. State, 574 So.2d 685, 687 (Miss.1990)). “Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance.” Id. (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). “The defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (citing Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001)). “To overcome this presumption, ‘the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

¶ 15. In this case, Smith alleged the following:

[Smith] was provided with ineffective assistance of counsel during trial where counsel: (a) failed to summon adequate witnesses; (b) failed to perform pretrial investigation; (c) failed to establish facts or investigate and prepare for trial by securing discovery or conferring with [Smith] regarding the defense to be raised; (d) failed to argue to the court that a [thirty] year mandatory sentence was illegal for armed carjacking when it was enhanced to a mandatory sentence and where, in such enhanced state, increased the sentence to exceed Smith’s life expectancy; (e) did not argue to [the] jury that [the][S]tate used testimony of a seasoned criminal to implicate [Smith] in [the] crime; (f) failed to present to the [circuit court] the issue of disparity in the sentence imposed upon co-defendants who [were] not charged and prosecuted as habitual offenders]; (g) failed to secure discovery from the prosecution in this case; (h) never investigated [the] case properly where counsel did not conduct an investigation of the crime scene or any other [scene]; [and] (i) failed to present the issue to the [circuit court] that the indictment [improperly charged Smith] because [it was] vague and unspecific.

Smith did not state anything further regarding his claim for ineffective assistance of counsel.

¶ 16. “A post-conviction claim of ineffective assistance of counsel is properly dismissed ... where it is manifestly without merit.” Robertson v. State, 669 So.2d 11, 13 (Miss.1996). A claim of ineffective assistance of counsel is manifestly without merit “where the defendant fails to allege with ‘specificity and detail’ that his counsel’s performance was deficient and prejudicial to his defense.” Id. In this case, Smith failed to allege with specificity and detail that his counsel’s performance was deficient and prejudicial to his defense.

¶ 17. We further note that “where a party offers only his affidavit, ... his ineffective assistance of counsel claim is without merit.” Willis v. State, 66 So.3d 740, 746 (¶ 22) (Miss.Ct.App.2011) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995)). Here, Smith failed to submit any affidavits or other evidence to support his contentions. More specifically, Smith has failed to show with a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. Accordingly, this issue is without merit.

II. Whether Smith’s sentence is illegal.

¶ 18. Smith also argues that his sentence is illegal under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The circuit court found this issue was without merit as follows:

[Smith] asserts that his thirty ... year sentence is unconstitutional under Blakely and Apprendi [,] as the court did not submit to the jury for determination [h]is habitual offender status.
Blakely held that any fact which increases the penalty for a crime must be submitted to the jury. Apprendi held that a jury must determine beyond a reasonable doubt that the defendant committed every element of the crime before he can be found guilty.
Both cases make an exception for prior convictions. Therefore, [Smith’s] assertion that his sentence as a habitual offender violates the above holdings is without merit.

We agree. Further, our supreme court addressed the Apprendi decision in Brown v. State, 995 So.2d 698, 702-03 (¶¶ 18, 20) (Miss.2008). In that case, Brown argued that the circuit court erred in failing to allow a jury to consider his sentence enhancement. Id. at 702 (¶ 16). Our supreme court noted that Brown’s argument was “in patent conflict with the U.S. Supreme Court’s decision in Apprendi.” Id. at 703 (¶ 20). Our supreme court continued: “We hold today that, ‘other 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.” Id. (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348) (emphasis added). This issue is without merit.

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

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

      . See Smith v. State, 907 So.2d 292, 300 (¶ 38) (Miss.2005).


author: BARNES, J.,

text:
    Cynthia DOMINICK, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KM-00720-COA.
    Court of Appeals of Mississippi.
    July 31, 2012.
    Rehearing Denied Nov. 27, 2012.
    Certiorari Denied Feb. 28, 21013.

      Kevin Dale Camp, Jackson, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court:

¶ 1. This is an appeal from the Circuit Court of Rankin County. Cynthia Dominick was found guilty in the Brandon Municipal Court of careless driving and driving under the influence. At a bench trial-in the County Court of Rankin County, Dominick was again found guilty and sentenced to pay a fine of $1,000, plus court costs and assessments, with $500 suspended, and ordered to serve forty-eight hours in the Rankin County Jail, with credit for time served, and ninety days of probation. The circuit court affirmed the county court’s sentencing and fines.

¶ 2. On appeal, Dominick raises the following issues:

I. Whether the county court erred in allowing into evidence the Intoxilyzer 8000 test results without allowing Dominick her right under the Sixth Amendment to confront the person in charge of calibrating the machine.
II. Whether- the test results from the Intoxilyzer 8000 should have been admitted into evidence, as Officer Blissard failed to keep Dominick in his presence during the entire twenty-minute observation period.
III. Whether the police lacked the requisite probable cause or reasonable suspicion to stop Dominick’s automobile on the evening in question.

Finding no error, this Court affirms.

FACTS

¶ 3. On November 6, 2010, Dominick and her boyfriend (now husband) left Hot Shots at approximately 10:30 p.m. after an evening of karaoke. Dominick was driving since her boyfriend had been drinking. Although Dominick had consumed at least three beers earlier in the evening, she began drinking water when she realized that she would have to drive. After leaving Hot Shots, Dominick and her companion drove to Waffle House in Brandon, Mississippi. They remained there for approximately one hour before heading home.

¶ 4. At approximately 12:20 a.m., Dominick was stopped by Officer Chris Blissard of the Brandon Police Department. Dominick initially told Officer Blissard that she had not been drinking. Office Blissard testified that he could smell alcohol on her breath. When Officer Blissard asked Dominick to step out of the car, she informed him that she had consumed four beers. However, Dominick later obtained a statement from the bartender at Hot Shots that stated she had consumed only three beers.

¶ 5. Officer Blissard performed a portable breath test and received a positive reading after Dominick blew into the machine. Officer Blissard also conducted a series of field sobriety tests on Dominick, including the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test. Dominick was then placed under arrest and transported to the Brandon Police Department, where Officer Blis-sard administered the Intoxilyzer 8000 test. The results showed a breath-alcohol content (BAC) of .12%, above Mississippi’s legal limit of .08%.

¶ 6. Dominick entered a plea of nolo contendré in the Brandon Municipal Court and was found guilty. She appealed to the county court. The county court judge conducted a bench trial de novo and found Dominick guilty of careless driving under Mississippi Code Annotated section 63-3-1213 (Rev.2004) and driving under the influence, first offense, in violation of Mississippi Code Annotated section 63-11-30(l)(c) (Supp.2011), as her alcohol concentration was above 0.8%. The county court judge stated, “[Tjhere is really not anything with a straight face I can say that creates a reasonable doubt on the (c) case.” Dominick appealed to the circuit court, which affirmed the ruling. Upon review, we affirm.

STANDARD OF REVIEW

¶ 7. “The standard of review regarding the admission or exclusion of evidence is abuse of discretion.” Hudspeth v. State, 28 So.3d 600, 602 (¶5) (Miss.Ct.App.2009) (quoting Morris v. State, 963 So.2d 1170, 1175 (¶ 15) (Miss.Ct.App.2007)). “Absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal.” Id. (quoting McCoy v. State, 820 So.2d 25, 31 (¶ 15) (Miss.Ct.App.2002)).

DISCUSSION

I. Confrontation Rights

¶ 8. Dominick argues that the admission of Intoxilyzer 8000 results under the Confrontation Clause of the Sixth Amendment requires the person who calibrated the machine to testify. This Court addressed this issue in Matthies v. State, 85 So.3d 872, 875-76 (1112, 14) (Miss.Ct.App.2011), and held that the person who calibrated an intoxilyzer is not required to testify and that the certification is not always testimonial. In rejecting the Sixth Amendment argument, this Court analyzed Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) and cases from other jurisdictions. We noted:

The certificates at issue here do nothing more than verify the accuracy of the equipment. Though the intoxilyzer was calibrated for use in criminal prosecutions, the certificates were not specifically prepared with an eye on prosecuting Matthies. Therefore, the calibration records in this case are different from the lab analysts’ certificates at issue in Melendez-Diaz, which were prepared after the drug seizure to establish at the defendant’s trial that the substance obtained from him was cocaine.

Matthies, 85 So.3d at 875 (¶ 13). The Mississippi Supreme Court granted certiorari and recently affirmed our holding in Matthies. See Matthies v. State, 85 So.3d 838, 844 (¶ 22) (Miss.2012).

¶ 9. Furthermore, Officer Blissard administered the intoxilyzer test, and he testified as to the BAC revealed by the test. The person who calibrated the intoxilyzer is not required to testify. Therefore, we find no merit to this issue.

II. Period of Observation

¶ 10. Dominick contends that Officer Blissard did not observe her for a required uninterrupted twenty minutes prior to the test; therefore, the results of the Intoxilyzer 8000 should not have been admitted into evidence. Dominick argues that Officer Blissard left her handcuffed in the back of his patrol car while he retrieved her cell phone from her car and that, during this time, she was not under observation.

¶ 11. Mississippi Code Annotated section 63-11-5(1) (Rev.2004) provides for a minimum observation period of fifteen minutes and states: “No such tests shall be given by any officer or any agency to any person within fifteen (15) minutes of consumption of any substance by mouth.” While the statutory period is a minimum of fifteen minutes, the Mississippi Department of Public Safety’s guidelines and the Intoxilyzer 8000 Implied Consent Policies and Manual require a twenty-minute observation period prior to testing. Hudspeth, 28 So.3d at 602 (¶ 6).

¶ 12. In Fisher v. City of Eupora, 587 So.2d 878, 882 (Miss.1991), the Mississippi Supreme Court analyzed decisions from other jurisdictions as to the observation period prior to testing and concluded: “A dispute as to whether the observation lasted the mandatory length of time or whether the observation was performed while in the presence of an officer goes to the weight of the testimony and the credibility of the witnesses.” In this case, Officer Blissard testified that he observed Dominick for the required time. There is no testimony that Officer Blissard’s observation of Dominick was obstructed. As in Fisher, Dominick “was not out of the officer[’s] range of vision.” Id. at 880. Officer Blissard also testified that Dominick did not throw up or put anything in her mouth. Dominick never testified that she consumed anything during the observation period, which would have made the testing invalid under the statute. The county court judge concluded that he “didn’t see any evidence of anything that would have invalidated this test.” Neither do we. The State introduced video from Officer Blissard’s patrol car that showed the patrol car and Dominick’s car were in very close proximity and that Dominick was not out of Officer Blissard’s range of vision at any time. Thus, we are unable to conclude that the court abused its discretion in allowing the test results to be admitted into evidence.

III. Probable Cause

¶ 13. Dominick disputes that there was probable cause for the traffic stop. She contends that her driving was not careless; as such, the stop of her vehicle was illegal according to the Fourth Amendment to the United States Constitution, as well as Article 3, Section 23 of the Mississippi Constitution. She contends that, because the stop was illegal, any evidence from it should be rendered inadmissible. The United States Supreme Court has stated that, as a general rule, “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

¶ 14. Officer Blissard testified that Dominick’s car “bumped” or “simply rode” the fog line prior to changing lanes. Dominick did not dispute this, and her testimony validated the officer’s conclusion. A review of the videotape does not contradict the officer’s testimony. While the videotape from the front bumper of the officer’s vehicle is not clear, it also does not contradict the officer’s conclusion at the time or his testimony. As the county court found, “the car was too far away to see what the officer saw.” In Martin v. State, 43 So.3d 533, 535 (¶ 9) (Miss.Ct.App.2010), this Court found sufficient probable cause existed where a vehicle bumped the fog line of a county highway.

¶ 15. Although Dominick could explain why she changed lanes, this information was not known to the officer at the time. Dominick testified that she initially changed lanes because her boyfriend wanted to go to his apartment but changed his mind, so she moved her car into the left-hand lane of the roadway. As stated in United States v. Escalante, 239 F.3d 678, 681 (5th Cir.2001), the test for probable cause “is an objective test based on the facts known to the officer at the time of the stop[.]”

¶ 16. Officer Blissard also testified that after the car went into the left lane, the car “bumped the center line to the right,” or “[s]he rode on to the center line.” Contrary to Dominick’s argument, there were several articulated reasons for the stop, and she did not explain why she “bumped” the fog line or center line to the right. After reviewing the evidence, the county court judge found that the officer certainly had “probable cause to stop her” and found Dominick guilty of careless driving and driving under the influence.

¶ 17. Accordingly, there was sufficient evidence to support a finding of probable cause, and we find no merit to this assignment of error.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF CARELESS DRIVING AND DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF $1000, PLUS COSTS AND ASSESSMENTS, WITH $500 SUSPENDED, AND FORTY-EIGHT HOURS IN CUSTODY WITH CREDIT FOR TIME SERVED AND NINETY DAYS PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: MAXWELL, J., for the Court:

text:
    Nathan SELLERS a/k/a Nathan P. Sellers, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01008-COA.
    Court of Appeals of Mississippi.
    Aug. 28, 2012.
    Rehearing Denied Dec. 11, 2012.
    Certiorari Denied Feb. 28, 2013.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   MAXWELL, J., for the Court:

¶ 1. A Rankin County jury found Nathan Sellers guilty of aggravated assault after he used his hands and arms to choke Terry Brown. Sellers argues the evidence is insufficient to support an aggravated-assault conviction. He asks this court to reverse his conviction or, alternatively, directly remand his case for sentencing on the lesser-included offense of simple assault. Viewing the evidence in the light most favorable to the State, we find a reasonable jury could have found that “by choking [Brown] with his hands until she almost passed out” Sellers attempted to cause bodily injury to Brown by means “likely to produce death or serious bodily injury.” We therefore affirm his aggravated-assault conviction.

FACTS

¶ 2. On December 16, 2006, Sellers and his girlfriend, Brandi Eades, went to the home of Bethany Giesler. Around 2:00 or 3:00 a.m. the next morning, Sellers left the hoüse with Giesler’s boyfriend to go drinking. Sellers admitted that he had consumed alcohol as well as Xanax and Lortab or Lorcet before returning to Giesler’s house around 7:30 a.m. That morning, an argument erupted between Sellers, Gies-ler, and Eades about whether Sellers was too intoxicated to drive home with the child Eades was babysitting. During the argument, Sellers purportedly hit Eades and wielded a knife, threatening to kill himself. Giesler’s seven-year-old daughter, Savannah, went to the neighbors’ home for help. Savannah told neighbor Terry Brown “her mommy was getting beat up” by a man with a knife. Brown armed herself with a pistol, putting it in the pocket of her pajama pants. She then went to Giesler’s house, where the argument had spilled into the driveway.

113. When Brown arrived, she saw Sellers pick Giesler up and throw “her down like a beanbag.” Sellers then grabbed Eades by the neck. As Brown tried to help Eades, Sellers taunted: “Oh, do you want some too?” He then grabbed Brown and put her in a choke hold, lifting her off the ground. Brown’s face turned blue. She testified that she felt like she was about to pass out. She could not breathe and described that Sellers was “choking [her] to death.” Giesler tried unsuccessfully to pry Seller’s hands from Brown, but Sellers would not release his hold. Brown was able to draw her pistol and shoot Sellers in the leg, prompting him to let go. A responding officer noted red marks on Brown’s neck.

¶ 4. Sellers was charged with aggravated assault. At trial, Sellers disputed the State’s witnesses’ testimony and argued that Brown’s injuries were not serious and that the choking was not carried out in a means likely to produce death or serious bodily injury. The jury found Sellers guilty of aggravated assault, and the circuit judge sentenced Sellers to twenty years’ imprisonment. See Miss.Code Ann. § 97-3-7(2) (Supp.2011) (aggravated assault punishable “by imprisonment ... in the Penitentiary for not more than twenty (20) years”). Sellers appeals from the circuit judge’s denial of his motion for a judgment notwithstanding the verdict.

DISCUSSION

¶ 5. On appeal, Sellers argues the evidence was insufficient to support an aggravated-assault conviction. He suggests that, because no serious bodily injuries resulted, the choking at most supported a simple assault. Sellers also briefly claims his actions were justified to repel Brown’s aggression towards him. We note Sellers did not pursue a self-defense instruction at trial and also withdrew his proposed instruction on the lesser-included offense of simple assault. Thus, we limit our scope of review to deciding whether sufficient evidence supports the aggravated-assault conviction.

¶ 6. When considering the sufficiency of the evidence, we view the evidence in the light most favorable to the State. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Viewing the evidence in this manner, we ask whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.

¶ 7. Under Mississippi Code Annotated section 97-3-7(2), a person is guilty of aggravated assault if he “attempts to cause or purposefully or knowingly causes bodily injury with a deadly weapon or other means likely to produce death or serious bodily harm.” (Emphasis added). “It is not necessary under [section] 97-3-7(2)(b) that the use of hands and fists constitute the use of a ‘deadly weapon[.]’ ” Jackson v. State, 594 So.2d 20, 24 (Miss.1992). Instead, it is sufficient “if their use constitutes a ‘means likely to produce either death or serious bodily harm.’ ” Id. And the State need not prove the victim suffered “serious” bodily injury. “Mere ‘bodily injury' is sufficient so long as it was caused with ‘other means likely to produce death or serious bodily harm.’ ” Id. Whether hands and arms are considered a “means likely to produce serious bodily harm” is a question for the jury to decide. Id.

¶8. This case presents a classic jury question. Sellers and his girlfriend Eades disputed that he violently choked Brown. Sellers claims he grabbed Brown while defending himself. But our inquiry requires that we view the evidence in the light most favorable to the State. Brown testified that when she tried to help Eades, Sellers grabbed her in a choke hold. Brown testified Sellers was “choking [her] to death,” and she felt like she was going to pass out. Giesler recalled that Sellers lifted Brown in the air while choking her, and another witness described Brown as turning blue. Sellers, who was admittedly drunk and fueled by narcotics, did not let go until Brown shot him. A responding officer noticed red marks on Brown’s neck.

¶ 9. The jury obviously found Sellers intended to injure Brown “by choking her with his hands until she nearly passed out,” as alleged in the indictment. The jury also found the choke hold was indeed serious enough to constitute “a means likely to produce serious bodily harm.” Because we find sufficient evidence supports the verdict, we affirm.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

      . Sellers’s indictment charged that he committed aggravated assault on Terry Brown "by choking her with his hands until she nearly passed out.” And the jury was instructed that if it found beyond a reasonable doubt that Sellers "attempted to cause bodily injury, using a means likely to produce death or serious bodily harm to Terry Brown ... [b]y choking her until she almost passed out[,j then [it] shall find the defendant, Nathan Sellers, guilty of Aggravated Assault."

      . In contrast, "[a] person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm[J” Miss.Code. Ann. § 97-3-7(1) (Supp.2011).

      . Effective July 1, 2012, section 97-3-7(2) was amended. 2012 Miss. Laws WL No. 147 (H.B. 780). The aggravated-assault provision applicable in this case, which had been codified as section 97~3-7(2)(b), is now codified as section 97-3-7(2)(a)(ii).