author: ROBERTS, J., IRVING, P.J.,

text:
    William Edward SNOWDEN a/k/a William E. Snowden, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01524-COA.
    Court of Appeals of Mississippi.
    Feb. 11, 2014.

      James B. Everett, Decatur, attorney for appellant.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Newton County Circuit Court found William Edward Snowden guilty of aggravated assault. The circuit court sentenced Snow-den to twenty years in the custody of the Mississippi Department of Corrections with fifteen years suspended and five years to serve. Snowden appeals and raises five issues. However, we find merit to one of Snowden’s issues. Because that issue is outcome determinative, his remaining four issues are moot. In particular, we find that the circuit court erred by allowing the prosecution to proceed on an indictment that specifically charged Snow-den with aggravated assault under Mississippi Code Annotated section 97-3-7(2)(a) (Rev.2006) when the indictment did not include all of the essential elements of a conviction under that provision. Therefore, we reverse the circuit court’s judgment of conviction for aggravated assault and vacate Snowden’s sentence of twenty years in the custody of the MDOC with fifteen years suspended and five years to serve. But because the jury inherently found Snowden guilty of simple assault, we remand this matter to the circuit court so it can sentence Snowden accordingly.

FACTS AND PROCEDURAL HISTORY

¶ 2. During February 2011, Nelson Smith and other members of a church outreach group provided rides home for people who needed rides home after celebrating Mardi Gras in the vicinity of Meri-dan, Mississippi. After Smith stopped providing rides to others, he drove west on 1-20 on his way to his home in Chunky, Mississippi. At approximately 12:45 a.m. on February 27, 2011, Smith got off of I-20 at the Chunky exit ramp. When he drove onto the exit ramp, he noticed a car driving “up behind [him] real fast.” Smith thought that “something’s going on with this person, because [he] was driving really crazy.” Smith yielded the exit ramp to the driver behind him. Specifically, Smith moved left off of the exit ramp. The car behind Smith drove to the end of the exit ramp and turned right onto “Chunky-Duffy Road.”

¶ B. As soon as Smith moved back onto the exit ramp, a white pickup truck drove behind him and let him into traffic. When Smith got to the end of the exit ramp, the driver of the white pickup truck passed him and turned right onto Chunky-Duffy Road. In other words, the driver of the white pickup truck went the same direction as the driver in the first car. According to Smith, the driver of the white pickup truck “just took off’ after he passed Smith.

¶4. Smith rolled down his window and proceeded in the same direction as the other two vehicles. A short distance later, Smith noticed that the white pickup truck had driven halfway down a driveway to a house on the left. Smith thought the driver of the white pickup truck was lost. As Smith drove past the driveway, he heard what he described as “three pops.” Smith first thought the sounds had come from his own vehicle. According to Smith, his right arm began “throbbing and blood start[ed] gushing out of [his] arm.” Smith realized that he had been shot. Because he was less than two miles from his own home, Smith drove there rather than a hospital. Smith’s wife drove him to Rush Hospital in Meridian.

¶ 5. Deputy Jeremy Pinson of the Newton County Sheriffs Department was dispatched to Rush Hospital. Just before 2:00 a.m., Deputy Pinson spoke to Smith. Smith explained that he had been driving past a house on Chunky-Duffy Road just north of the exit off of 1-20 when he was shot in the upper part of his right arm. Shortly after he interviewed Smith, Deputy Pinson went to the house that Smith described. Snowden lived in the house with his wife and stepson. Deputy Pinson explained that he was investigating a report that someone had been shot. Snow-den admitted that he was responsible for the gunshots that occurred earlier that night. According to Snowden, he fired warning shots from a .22 caliber rifle because his stepson, Chris McCans, had been pursued by unidentified people as McCans was driving home from work. Snowden explained that he had been trying to make his stepson’s pursuers leave the property.

¶ 6. After speaking to Deputy Pinson at Rush Hospital, Smith had been transferred to University Medical Center in Jackson, Mississippi, where he underwent exploratory surgery to determine the significance of the damage to his arm. Smith was discharged later that day. Deputy Pinson called Smith while Smith was riding home from Jackson. Deputy Pinson relayed Snowden’s claim that he had been firing warning shots because two people had chased his stepson home. Smith initially said he did not want to press charges against Snowden, but Smith later changed his mind.

¶ 7. On June 5, 2012, Snowden was indicted and charged with aggravated assault. Specifically, the indictment stated:

Snowden ... did willfully, unlawfully, [and] feloniously cause bodily injury to ... Smith ... knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life with a deadly weapon, to-wit: a rifle, by shooting ... Smith with [the] rifle, ... being a means likely to produce death or serious bodily harm, contrary to and in violation of [Mississippi Code Annotated sjection 97-3-7(2)(a) [ (Rev. 2006) ].

(Emphasis added). On the date of the crime and the date the indictment was filed, section 97-3-7(2)(a) provided, “A person is guilty of aggravated assault if he ... attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly[,] or recklessly under circumstances manifesting extreme indifference to the value of human life[.]” (Emphasis added). Mississippi Code Annotated section 97-3-7(2)(b) (Rev.2006) provided that “[a] person is guilty of aggravated assault if he ... attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm[.]” (Emphasis added). Snowden filed two pretrial motions to dismiss the indictment. Snow-den argued that the indictment was duplicitous because it attempted to charge him with both aggravated assault and simple assault. Snowden also argued that the indictment was fatally flawed because it attempted to charge him with some blended form of aggravated assault that is cobbled together with incomplete aspects of both section 97-3-7(2)(a) and section 97-3-7(2)(b). However, the circuit court overruled both of Snowden’s motions to dismiss the indictment.

¶ 8. At trial, the prosecution called Smith and Deputy Pinson as witnesses. After the prosecution rested its case-in-chief, Snowden called McCans as his first witness. McCans testified that the night Smith was shot, McCans had been working at a restaurant in Meridian. McCans stopped at a gas station on his way home. According to McCans, while he was at the gas station, two men in a white pickup truck aimed a laser pointer at him. McCans left the gas station. The two men in the white pickup truck followed him on the interstate, despite the fact that McCans drove approximately ninety to one hundred miles per hour. According to McCans:

[O]nce I got to the Chunky exit, there was a[n] eighteen wheeler in my way, so I couldn’t get off right away, and as I slowed down, they pulled up on the left-hand side of me and struck my window with a — some—a long metal pole, it looked like. Something like that. And at that time, I just took off off the exit, around the vehicle, and headed toward my driveway.

McCans encountered Smith’s car shortly after his pursuers hit his window with a “metal pole.” McCans testified that he used his cellular phone to call his mother, Elayne Snowden, while he was being chased. Elayne corroborated McCans’s testimony that he called her while he was being chased. Elayne further testified that her husband, Snowden, went outside when McCans pulled into the driveway, and Snowden “fired ... warning shots.” According to Elayne, she saw at least one of the occupants of the white pickup truck fire a weapon.

¶ 9. Snowden also testified. Snowden explained that he “had to do something to protect [his] family.” According to Snow-den, he “just fired warning shots and that was it.” Snowden elaborated that he “[j]ust pointed the rifle out and pulled the trigger.” Snowden testified that his last warning shot was a misfire. He speculated that Smith could have been hit by that shot. Snowden went on to testify that he did not intend to shoot Smith or anyone else, and he was “[v]ery sorry that it happened.” Snowden rested after he testified, and the prosecution finally rested.

¶ 10. During the conference on jury instructions, Snowden objected to the following jury instruction, which was designated as jury instruction S-l:

The [c]ourt instructs the [j]ury that if you believe from the evidence in this case beyond a reasonable doubt that at the time and place charged in the indictment and testified about, ... Snowden, did willfully, unlawfully, [and] feloniously cause bodily injury to Nelson Smith, a human being, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life with a deadly weapon, to-wit: a rifle, by shooting ... Nelson Smith with [the] rifle, ... being [a] means likely to produce death or serious bodily harm, then it is your duty to find [Snowden] guilty as charged.

Snowden argued that jury instruction S-l did not adequately describe a violation of section 97 — 3—7(2)(a), which requires proof of “serious bodily injury” rather than “bodily injury.” Snowden also argued that jury instruction S-l was improper because it included language that pertained to a conviction for aggravated assault under section 97 — 3—7(2)(b). However, the circuit court found no merit to Snowden’s arguments and gave jury instruction S-l as written. The jury was not instructed that it had to find that Snowden caused Smith serious bodily injury. The jury found Snowden guilty of aggravated assault. Snowden appeals.

ANALYSIS

¶ 11. Snowden claims the circuit court erred when it allowed the prosecution to proceed on a defective indictment. According to Snowden, the indictment did not adequately charge him with aggravated assault under section 97-3-7(2)(a). “The issue of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by this Court.” Russell v. State, 924 So.2d 604, 607 (¶ 3) (Miss.Ct.App.2006). “As the issue involves a question of law, this Court applies a de novo standard of review.” Id.

¶ 12. The indictment against Snowden states:

Snowden ... did willfully, unlawfully, [and] feloniously cause bodily injury to ... Smith ... knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life with a deadly weapon, to-wit: a rifle, by shooting ... Smith with [the] rifle, ... being a means likely to produce death or serious bodily harm, contrary to and in violation of [Mississippi- Code Annotated s]ection 97 — 3—7(2)(a) [ (Rev. 2006) ].

(Emphasis added). As previously mentioned, at the time that Snowden was indicted, section 97-3-7(2)(a) provided that “[a] person is guilty of aggravated assault if he ... attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly[,] or recklessly under circumstances manifesting extreme indifference to the value of human life[.]” (Emphasis added). The indictment did not accuse Snowden of causing serious bodily injury to Smith. And through jury instruction S-l, the circuit court instructed the jury that it could find Smith guilty of aggravated assault if it found that Snow-den “willfully, unlawfully, [and] feloniously cause[d] bodily injury to ... Smith ... knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life with a deadly weapon.”

¶ 13. When Snowden was indicted, section 97-3-7(2)(b) provided that “[a] person is guilty of aggravated assault if he ... attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm[.]” (Emphasis added). But Snowden was specifically indicted under section 97-3-7(2)(a). The indictment did not charge him with aggravated assault under section 97-3-7(2)(b).

¶ 14. In Stevens v. State, 808 So.2d 908, 920 (¶ 36) (Miss.2002), a defendant claimed that an indictment for aggravated assault was fatally defective because it did not specifically accuse him of violating subsection (2)(a) or (2)(b) of section 97-3-7. The Mississippi Supreme Court held that “it necessarily follows that [Stevens] was charged under both subsections” of section 97-3-7(2). Id. But in this case, the prosecution specifically indicted Snowden under section 97-3-7(2)(a). Consequently, the prosecution was obligated to prove that Snowden caused “serious bodily injury ... purposely, knowingly[,] or recklessly under circumstances manifesting extreme indifference to the value of human life[.]” Miss.Code Ann. § 97-3-7(2)(a).

¶ 15. This Court has previously found that a circuit court did not commit plain error when it allowed a defendant to be convicted of aggravated assault under an indictment that blended language from section 97-3-7(2)(a) and section 97-3-7(2)(b). Johnson v. State, 910 So.2d 1174, 1180 (¶ 20) (Miss.Ct.App.2005). In Johnson, this Court held that the defendant’s conduct “plainly, clearly, and obviously would qualify as aggravated assault under either” section 97-3-7(2)(a) or section 97-3-7(2)(b). Johnson, 910 So.2d at 1179 (¶ 20). ‘Yet, even if there was some doubt about the particular subsection of [section] 97-3-7(2) that was intended to be covered by the indictment, ... our supreme court has held that [section] 97-3-7(2) may be read to cover a ‘considerable latitude’ ” of varying factual situations. Johnson, 910 So.2d at 1180 (¶ 20) (citing Stevens v. State, 808 So.2d 908, 920 (¶ 35) (Miss.2002)). Ultimately, this Court relied on Stevens and held that “the blending of the subsections of [section 97-3-7(2) ] is not necessarily a defect and in this case does not warrant reversal.” Johnson, 910 So.2d at 1180 (¶ 20).

¶ 16. However, this case is distinguishable from Johnson. In this case, Snowden was specifically accused of aggravated assault under section 97-3-7(2)(a). But Snowden was only accused of causing “bodily injury” to Smith. Section 97-3-7(2)(a) required proof of “serious bodily injury.” The Mississippi Supreme Court “has held that an indictment based upon a statutory offense must charge all of the essential elements of the statutory crime and is void for failure to do so.” Spears v. State, 253 Miss. 108, 116, 175 So.2d 158, 161-62 (1965). The jury was instructed that it could find Snowden guilty of aggravated assault if it found that Snowden caused Smith any “bodily injury.” But the jury never found that Snowden caused Smith “serious bodily injury.”

¶ 17. The dissent relies on White v. State, 958 So.2d 241, 244 (¶ 10) (Miss.Ct.App.2007), and Johnson v. State, 94 So.3d 1209, 1215 (¶¶ 26-29) (Miss.Ct.App.2011), to argue for its conclusions that (1) the indictment charged Snowden under both section 97 — 3—Y(2)(a) and 97 — 3—7(2)(b), and (2) the jury inherently found Snowden guilty of aggravated assault under section 97 — 3—7(2)(b). With utmost respect for the dissent, we disagree. White is of no moment in this case, because it is irrelevant whether Snowden could have somehow derived that when the indictment specifically charged him under section 97 — 3—7(2)(a), the indictment really meant to charge him under section 97 — 3—7(2)(b) as well.

¶ 18. And this case is distinguishable from Johnson in that it is legally impossible to affirm Snowden’s conviction for aggravated assault under either section 97-3 — 7(2)(a) or section 97 — 3—7 (2) (b). It is accurate that “bodily injury” rather than “serious bodily injury” is one of the essential elements of a conviction under section 97 — 3—7(2)(b). But under section 97-3-7(2)(b), the prosecution was also obligated to present evidence beyond a reasonable doubt that Snowden “purposely or knowingly” shot at either Snowden or the two people who were chasing McCans. The dissent argues that the jury could have inferred that Snowden intended to shoot the occupants of the white pickup truck. The dissent’s reasoning is based on the assumptions that: (1) Snowden “wanted to be ready for his stepson’s pursuers”; (2) Snowden fired three shots, which the majority assumes were in the direction of the occupants of the pickup truck; and (3) Snowden could have seen Smith’s headlights. But there is absolutely no evidence that Snowden fired directly at the occupants of the white pickup truck. For whatever reason, the occupants of the white pickup truck were never identified. They did not even testify. No witness testified that Snowden fired even one shot directly at them. Furthermore, there was no evidence that Snowden had an unobstructed view of approaching traffic on Chunky-Duffy Road. There was no evidence that Smith and the occupants of the white pickup truck would have been in the same line of fire. That is, there is no evidence that Snowden was aiming directly at the occupants of the white pickup truck, and there was no evidence that Smith would have been in the line of fire if Snowden had been aiming at the occupants of the white pickup truck. The jury may reach inferences based on the evidence, but the dissent cites no authority to support the conclusion that the jury may assume or infer facts that are not supported by the evidence. Speculation is the only path available for the jury to possibly infer from this evidence that Snowden “purposefully or knowingly” attempted to shoot the two unknown occupants of the white pickup truck.

¶ 19. During cross-examination, Deputy Pinson testified that Snowden never told him where he aimed in relation to the two men who were in the pickup truck that pulled into Snowden’s driveway. Deputy Pinson also testified that Snowden did not say that he intended to shoot Smith. According to Deputy Pinson, Snowden merely said that he intended to “scare off’ the people who had been chasing McCans. Snowden testified that he intended to fire “warning shots,” and he “was not firing at anybody.” During cross-examination, Snowden reiterated that he “wasn’t firing at” the occupants of the pickup truck or Smith. When the prosecution asked Snowden whether he was “just shooting at a vehicle,” Snowden responded that he “wasn’t shoot[ing] at anybody or anything.” Even assuming all evidence and inferences favorable to the prosecution are true, there was simply no evidence that Snowden purposely, knowingly, or intentionally shot at the occupants of the pickup truck or Smith. It follows that there can be no transfer of intent to Smith when there is no evidence that Snowden intended to shoot the occupants of the pickup truck. Stated differently, if there was no evidence of specific intent, then logically there can be no transferred intent. Snow-den specifically testified that he did not intentionally shoot Smith and he was “[v]ery sorry that it happened.”

¶ 20. The dissent finds that the prosecution clearly pursued a transferred-intent theory based on the concept that Snowden intended to shoot the occupants of the white pickup truck. The basis for the dissent’s conclusion is that the prosecution obtained a transferred-intent instruction. However, immediately after the prosecution obtained that instruction, it based its closing argument on the theory that Snow-den was guilty of aggravated assault because he acted recklessly when he fired the shot that struck Smith. During the prosecution’s closing argument, the prosecutor said, “I never said to you at any time that Mr. Snowden intentionally shot, knowing it was ... Smith. I never have argued that, because that’s not the case.” The prosecutor went on to argue that “Snowden’s actions were those that you would have to consider reckless and under a circumstance that would show it was an extreme indifference to human life. And that’s what resulted in his shooting the gun and hitting ... Smith.” When the prosecutor replied to Snowden’s closing argument, the prosecutor again said “that was a reckless act.” The prosecutor’s final statement to the jury was that “Snowden acted in such a manner that it was reckless and it was in complete indifference to the [value of] human life.” In other words, the prosecution did not claim nor attempt to prove that Snowden purposefully or knowingly caused bodily injury to Smith, an innocent motorist who unfortunately happened to be in the wrong place at the wrong time. Snowden and Smith did not know one another. The prosecution’s theory was that Snowden either carelessly or negligently fired his .22 caliber rifle over the heads of the two occupants of the white pickup truck in an effort to scare them away from his stepson, but one of the bullets unintentionally struck Smith, a passing motorist, in the arm. Stated differently, the prosecution claimed that Snowden acted “recklessly under circumstances manifesting extreme indifference to the value of human life.” A conviction for aggravated assault under section 97-3-7(2)(b) where a deadly weapon is used to cause a bodily injury does not provide that a defendant’s conduct can be reckless. Instead, such conduct must be purposeful or knowing. Consequently, even if the indictment is legally sufficient to charge Snow-den with aggravated assault under section 97 — 3—7(2)(b), the undisputed proof is insufficient to warrant a conviction under that subsection.

¶ 21. Notwithstanding the complete absence of evidence that Snowden knowingly, purposely, or intentionally shot Smith, the jury inherently found Snowden guilty of simple assault. “[S]imple assault has been deemed a lesser-included[ ]offense of the crime of aggravated assault.” Odom v. State, 767 So.2d 242, 245 (¶ 10) (Miss.Ct.App.2000). Mississippi Code Annotated section 97-3-7(1) (Rev.2006) provides that “[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.” (Emphasis added). Through jury instruction S-l, the jury found that Snowden acted recklessly when he caused Smith’s bodily injury. During the hearing on Snowden’s pretrial motion to dismiss the indictment, Snowden’s attorney argued that Snowden should only be prosecuted for simple assault based on language of the indictment. In his appellate brief, Snow-den concedes that he was guilty of simple assault and he should be sentenced accordingly. We agree.

¶ 22. Utilizing the direct-remand rule, an appellate court may remand a case to the trial court for sentencing on a lesser-included offense where the greater offense was not proved, but the elements of the lesser-included offense were sufficiently met. Shields v. State, 722 So.2d 584, 587 (¶ 7) (Miss.1998) (citation omitted). The supreme court explained that the logic behind the direct-remand rule was that “guilt of a true lesser[-]ineluded offense is implicitly found in the jury’s verdict of guilt on the greater offense.” Id. (citations omitted). “The direct-remand rule has also been followed in numerous other state and federal courts, with varying rationales, [based on] either statut[e], rule ... [,] or inherent power.” Id. at 585 (¶ 8). Therefore, we reverse the circuit court’s judgment of conviction for aggravated assault, and vacate Snowden’s sentence for that charge. However, we remand this matter to the circuit court with instructions to sentence Snowden for simple assault. Based on our resolution of this issue, Snowden’s remaining issues are moot.

¶ 23. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT IS REVERSED; THE SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIFTEEN YEARS SUSPENDED AND FIVE YEARS TO SERVE IS VACATED; AND THIS CASE IS REMANDED FOR RESENTENCING ON THE LESSER-INCLUDED OFFENSE OF SIMPLE ASSAULT IN ACCORDANCE WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NEWTON COUNTY.

GRIFFIS, P.J., ISHEE, FAIR AND JAMES, JJ., CONCUR. BARNES AND MAXWELL, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., AND CARLTON, J.

IRVING, P.J.,

dissenting:

¶ 24. The majority reverses Snowden’s conviction for aggravated assault because, in the majority’s view, the indictment is defective because it does not include all of the elements of aggravated assault as set forth in the charging statute. I believe that the indictment substantially describes the offense of aggravated assault, as it sufficiently informed Snowden that he was charged with willfully and unlawfully causing bodily injury to Smith with a deadly weapon, a rifle, and that the rifle was a means likely to produce death or serious bodily harm. The inclusion of additional language in the indictment did not, in my view, cause Snowden to be misinformed as to the nature and cause of the accusation against him. Therefore, I respectfully dissent. I would affirm Snowden’s conviction of aggravated assault.

¶ 25. Snowden’s indictment provides in pertinent part:

William Edward Snowden on or about the 27th day of February did willfully, unlawfully, [and] feloniously cause bodily injury to Nelson Smith, a human being, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life with a deadly weapon, to-wit: a rifle, by shooting the said Nelson Smith with said rifle, said rifle being a means likely to produce death or serious bodily harm, contrary to and in violation of section 97-3-7(2)(a), Miss. Code Ann. (1972).

(Emphasis added).

¶26. The majority notes that the aggravated-assault statute has been amended since the date of the incident and the date of Snowden’s indictment. I agree. However, I point out that the amendment did not make any substantive changes to the elements of the aggravated-assault statute. The amendment only redesignated the subsection’s provisions. At the time of the incident, as well as at the time of the indictment, our aggravated-assault statute read as follows:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly[,] or recklessly under circumstances manifesting extreme indifference to the value of human life; (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm....

Miss.Code Ann. § 97-3-7(2) (Rev.2006). Conversely, our simple-assault statute read in part as follows: “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[.]” Miss.Code Ann. § 97-3-7(1) (Rev.2006).

¶ 27. In my opinion, the language in Snowden’s indictment that is reflected above in bold is sufficient to charge Snow-den with aggravated assault under section 97-3-7(2)(b), as it contains all of the elements specified in that provision of the statute. The fact that the indictment listed the charging statute as 97-3-7(2)(a) and also charged that the action which produced the bodily injury was done “recklessly under circumstances manifesting extreme indifference to the value of human life” is of no consequence, as there is no requirement that the statute be listed in the indictment and the additional language is mere surplusage. It is clear from my review of the record that Snowden fired the rifle “recklessly under circumstances manifesting extreme indifference to the value of human life” because Smith was directly in Snowden’s line of fire when he fired. The phrase — recklessly under circumstances manifesting extreme indifference to the value of human life — simply describes the circumstance of the shooting. It is not ambiguous language that could reasonably be interpreted as describing aggravated assault under section 97-3-7(2)(a), as there is only one incident addressed in the indictment: a shooting with a deadly weapon that caused bodily injury to Smith. Section 97-3-7(2)(b) is the only statute describing aggravated assault that has as one of its elements the use of a deadly weapon or other means likely to produce death or serious bodily harm. While it is true that the indictment also contains language that is only contained in section 97-3-7(2)(a) — recklessly under circumstances manifesting extreme indifference to the value of human life — it is crystal clear that the focus of the indictment is on the shooting with a deadly weapon, not on some other circumstance comprising an aggravated assault by engaging in reckless conduct manifesting extreme indifference to the value of human life.

¶ 28. This Court addressed an indictment’s defectiveness in White v. State, 958 So.2d 241, 244 (¶ 10) (Miss.Ct.App.2007). In White, the indictment “charged White with a violation of section 97-3-7(2)(a)[.]” White, 958 So.2d at 244 (¶ 10). However, “[t]he language used in the indictment describing the crime state[d] that [the defendant] unlawfully, willfully, feloniously, purposefully, and knowingly caused bodily injury to [the victim] with a deadly weapon, to wit: by stabbing him with a knife.” Id. We acknowledged that the language in the indictment was “more in line with section 97 — 3—7(2)(b).” Nevertheless, we ultimately determined that the discrepancy was “of no moment” because

[t]he primary purpose of an indictment is to notify an accused of the charges against him in order to allow him to prepare an adequate defense. Furthermore, the incorrect citation of a statute number does not alone render an indictment defective, but rather is mere sur-plusage and not prejudicial to a defendant.

White, 958 So.2d at 244 (¶ 10) (internal citations and quotation marks omitted).

¶29. As stated, Snowden’s indictment charged Snowden with violating section 97-3-7(a), but the language used in the indictment, like the indictment in White, is more in line with section 97-3-7(b). In White, we did not find that citation to a particular subsection of the aggravated-assault statute was fatal even though the language of the indictment closely tracked the language of a different subsection of the statute. I see no reason to hold differently here regarding Snowden’s indictment. The indictment was sufficient not only to notify Snowden of the aggravated-assault charges against him, but also sufficient to allow him to prepare an adequate defense against the charges. That is the sole purpose of the indictment. That Snowden fully understood that he was charged with committing aggravated assault with a deadly weapon is reflected by his testimony, that he was not firing at anybody and did not intentionally shoot Smith.

¶ 30. We held similarly in Johnson v. State, 94 So.3d 1209 (Miss.Ct.App.2011), a case with a factual scenario similar to the one in the present case. In Johnson, the appellant was charged under Mississippi Code Annotated section 97-17-23 (Rev. 2006) with burglary of a dwelling house. Johnson, 94 So.3d at 1214 (¶ 24). The indictment charged that the appellant

did wilfully, unlawfully, feloniously and burglariously break and enter the dwelling house of Lindsey Callón wherein goods, merchandise and other valuable items were kept and stored, with the felonious intent of Johnson to wilfully, unlawfully, feloniously and burglariously take, steal and carry away said goods, merchandise and other valuable items and did in fact take, steal and carry away a rifle, and the personal property of Lindsey Callón, found and kept in said dwelling house.

Id. We noted that “the italicized phrases [in the indictment were contained] only in [Mississippi Code Annotated] section 97-17-33(1) [ (Rev.2006) ], the other-buildings burglary statute, and not the dwelling-house burglary statue.” Johnson, 94 So.3d at 1215 (¶25).

¶ 31. The appellant made three arguments:

[T]he ambiguity over which statute he was being charged forced him to go to trial without notice of the charges against him[;] ...
the ambiguity require[d] [that] he be resentenced under the lesser statute, [section 97-17-33(1), which carries a lesser sentence; and]
the inclusion of the additional language about “goods, merchandise and other valuable items” created another element to the crime, which was neither proven at trial nor included in the jury instructions.

Johnson, 94 So.3d at 1215 (¶¶ 25, 28). In rejecting the appellant’s arguments, we stated:

The purpose of an indictment is to provide the accused reasonable notice of the charges against him so that he may prepare an adequate defense. An indictment must contain the essential facts constituting the offenses charged and shall fully notify the defendant of the nature and cause of the accusation. Any potential ambiguity created by including the phrase “goods, merchandise and other valuable items” is negated by the indictment’s express reference to section 97-17-23 and the specific charging language that [appellant] broke into a “dwelling house.”
* * *
[T]he indictment’s language and its citation to the code section for burglary of a dwelling house fully notified [the appellant] of the offense charged. Indeed, the indictment twice referenced Callon’s “dwelling house.” And the charging document included all essential elements of the dwelling-house burglary — breaking and entering a dwelling house with the intent to commit a crime. Thus, we find no reversible error in Count I.
* * *
[The] phrase [“goods, merchandise and other valuable items”] is mere surplus-age, which could have easily been removed from the indictment without changing the substance of the dwelling-house burglary charge.

Johnson, 94 So.3d at 1215 (¶¶ 26-29) (internal citations and quotation marks omitted).

¶ 32. Just as in Johnson, the charging document here — the indictment — includes all of the essential elements of aggravated assault and fully informed Snowden that he was charged with aggravated assault, committed by knowingly shooting Smith with a deadly weapon, a rifle, that caused bodily injury to Smith. The additional language that described the circumstance of the shooting is clearly surplusage, and, as this Court said in Johnson, could have easily been removed from the indictment without changing the substance of the aggravated-assault charge.

¶ 33. The majority says that the dissent relies on Johnson, as well as on White, to support its conclusions that “(1) the indictment charged Snowden under both section 97-3-7(2)(a) and 97-3-7(b), and (2) the jury inherently found Snowden guilty of aggravated assault under section 97-3-7(2)(b).” Maj. Op. at (¶ 17). Suffice it to say that the dissent reaches no such conclusion. Simply stated, it is the dissent’s view that White and Johnson are authority for the proposition that the indictment is legally adequate to have apprised Snowden of the charges against him so as to have enabled him to prepare a defense. As stated, Snowden’s testimony that he was not firing at anybody and did not intentionally shoot Smith provides all the needed proof that Snowden knew that he was being charged with attempting to cause or knowingly causing bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.

¶ 34. Finally, the majority says that “even if the indictment is legally sufficient to charge Snowden with aggravated assault under section 97 — 3—7(2)(b), the undisputed proof is insufficient to warrant a conviction under that subsection.” Maj. Op. at (¶ 20). To support this proposition, the majority relies on the testimonies of Snowden and Deputy Pinson. It is elemental that the jury is the judge of the credibility of the witnesses. The jury was not required to accept as true Snowden’s testimony regarding his intent or his statement to Deputy Pinson that he only intended to scare off the individuals that had chased his stepson onto Snowden’s driveway.

¶ 35. This Court recently addressed the manner in which intent may be proven. In Shaw v. State, _ So.3d _, _ (¶ 13) (Miss.Ct.App.2013), we stated:

Intent ordinarily must be inferred from the acts and conduct of the party and the facts and circumstances attending them. Even if intent is not expressly evident, it may be proven by showing the acts of the person involved at the time, and by showing the circumstances surrounding the incident. Whether a person intended to commit an act is a question of fact to be gleaned by the jury from the facts shown in the case. The presumption of the law is that each person intends the natural consequences of his actions.

(Internal citations and quotations marks omitted).

¶ 36. Prior to the shooting, Snowden’s stepson had called home and advised that he was being chased by some individuals. Snowden got his gun, a .22 rifle, and waited for his stepson to arrive. It is reasonable to assume that he believed that the individuals might chase his stepson home, and he wanted to be ready for his stepson’s pursuers should they be brazen enough to do so. When the pursuers did exactly what Snowden suspected that they might do, he fired three shots — not one, not two, but three — in the direction of the pickup truck that the pursuers were in, which also was in the direction of Smith’s car. Since this occurred around 12:45 a.m., the heart of the night, it cannot be reasonably argued that Snowden did not or could not have seen the headlights of Smith’s vehicle, which was passing on the highway by Snowden’s driveway. On this evidence, the jury could reasonably conclude that when Snowden fired the three shots, he was attempting to shoot his stepson’s pursuers, notwithstanding his testimony that he was only attempting to scare them away and was not trying to shoot anybody. If that were the case, why would he not simply wait until Smith’s vehicle had passed and then shoot? The jury could reasonably assume that Snow-den was angry and was attempting to get his stepson’s pursuers at all cost. Otherwise, why would he shoot toward a passing vehicle that was directly in his line of fire?

¶ 37. The majority says there is no evidence that Snowden fired directly at the occupants of the white pickup truck. I agree that there is no direct evidence of that, but there is adequate evidence from which the jury could have inferred that that was the case. Snowden’s wife, Elayne, testified as follows:

I was out on the front porch waiting. And I saw my son pull in, I saw a car go past, and then the pickup truck came and started to turn into the driveway. That is when my husband fired the warning shots, and the truck stopped turning into the driveway and continued — I started hearing more shots, and I looked over and realized, when I looked back at the pickup truck, there were red flashes coming from the guy with the pickup truck. That it was not Eddie shooting anymore. That was them shooting, and I just hit the patio.
Q. And you say you saw your husband when he shot the gun. How did he hold the gun?
A. I did not actually see him holding the gun. I heard the shots and realized that that’s what was — because he was in front of the garage. The porch light does not reach over that way.

¶ 38. Snowden testified in pertinent part as follows:

Q. Why did you reach and get the rifle?
A. Because [my wife] had — was talking to him. And said they were shining a laser light in his face, and the only thing I could figure of [sic] with a laser light would be on a weapon. And when they hit the car, they hit the glass on the passenger — or driver’s side about four inches from the post. If it’d been a little bit further, it would have come through the glass and hit him in the face.
Q. Okay.
A. But when they hit the car, I knew they intended bodily harm. And that’s why I picked up the rifle and went outside. I mean, you don’t go up and strike a car like that, moving, unless you intend to hurt somebody.
Q. And that’s the only reason you—
A. That’s the only reason. I didn’t know what these idiots had in mind or what, you know, but I knew if they come up to my house, I had to do something to protect my family.
Q. Describe a warning shot?
A. Just pointed the rifle out and pulled the trigger....
Q. And did you know anybody was on the highway — on the Chunky-Duffy Road at the time you fired the gun?
A. No. Like I said, I was not firing at anybody. I was simply firing because I didn’t know what the intentions of these people were that was coming after Chris. Had no idea what their mind was, other than the fact I knew they went — meant bodily harm.

¶ 39. It is clear from the testimonies of Snowden and his wife that the jury, as noted, could reasonably infer that he intended to shoot the occupants of the white pickup truck if the truck followed his stepson onto their driveway. First, based on Snowden’s wife’s testimony, the jury learned that Snowden stood where he could not be seen by the occupants of the truck, as the porch light did not shed light in the area where he stood, waiting "with the rifle. This would indicate that Snow-den was attempting to gain a tactical advantage in what he thought could develop into a shootout with the occupants of the truck. Second, it is a reasonable inference that if Snowden believed that the occupants of the pickup truck had a weapon and were attempting to cause bodily injury to his stepson, he would shoot to stop them, not simply fire several warning shots. Further, the jury heard evidence that Snowden’s home is located on a hill that overlooks Chunky-Duffy Road, providing an unobstructed view of the road below. Therefore, based on the physical position of Snowden’s home, Snowden would not have been able to strike anyone traveling on Chunky-Duffy Road if all he had done was raised his rifle and fired several shots. He had to aim his gun downward. Therefore, the physical evidence contradicts Snowden’s testimony that he was not shooting at anyone and that he simply raised his gun and fired. A fair and impartial consideration of Snow-den’s testimony compels the conclusion that he was not attempting to fire only warning shots. He had concluded, prior to the white pickup truck turning onto his driveway, that the laser light that the occupants of the truck had shined in his stepson’s face was attached to a weapon. Therefore, he believed them to be armed and dangerous.

¶40. Applying the law of transferred intent, the evidence was sufficient for the jury to find Snowden guilty of aggravated assault against Smith, even though he intended to shoot his stepson’s pursuers instead. Clearly, this was the theory that the State pursued, because it asked for, and the circuit court gave, the following instruction:

The Court instructs the jury that if one intends to injure a person with a deadly weapon, and by mistake or inadvertence injures another person with such weapon, his intent is transferred from the person to whom it was directed to the person actually injured, and he may be found guilty of aggravated assault. You may find a person guilty of aggravated assault even if that person intended to injure another.

The majority points to the State’s closing argument in an attempt to discount the notion that the State’s case was based on transferred intent, that is, that Snowden intended to shoot the occupants of the white pickup truck, not Smith. Suffice it to say that closing argument is not evidence. But there was sufficient evidence offered from which reasonable persons could infer that Snowden was attempting to shoot the occupants of the white pickup truck. The jury found Snowden guilty of aggravated assault against Smith. It could do that only if it also found that Snowden was attempting to shoot the pursuers of his stepson but failed, as there is absolutely no evidence that he was attempting to shoot Smith, nor is there any evidence from which that conclusion can be inferred.

¶ 41. For the reasons presented, I dissent. I would affirm the judgment of the circuit court.

LEE, C.J., AND CARLTON, J., JOIN THIS OPINION.

      . Smith thought that his health insurance provider would not pay the costs of his treatment if he did not press charges against Snowden. Smith never explained why he came to that conclusion.

      . Effective July 1, 2012, the Mississippi Legislature amended section 97-3-7(2)(a), which now provides, in pertinent part:
      A person is guilty of aggravated assault if he (i) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; [or] (ii) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm....”
      Miss.Code Ann. § 97-3-7(2)(a) (Supp.2013).

      . I note that the author of the opinion in White is the author of today's majority opinion.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Monique DOSS, Nadia Harris, Shavonda Gibbs, Rochell Childs, Darren Childs, Ladarius Johnson, Tamara Green, Darius West, Roger Hawkins, Takeera Johnson, Levan Harris, Joseph Doss, Tyneeta Doss, Justin Childs, A Minor by and Through Brenda Childs, As Next Friend and Natural Guardian, Nancy Pointer, Mishay Hampton, Tarmeisha Hampton and Kimeyatter Pointer, A Minor by and Through Nancy Pointer, As Next Friend and Natural Guardian, Appellants v. Jessica DIXON, Marquitta Hawkins and Christine Whitehall, Appellees.
    No. 2012-CA-01017-COA.
    Court of Appeals of Mississippi.
    Feb. 11, 2014.

      Carlos Eugene Moore, Tangala Laniece Hollis, Grenada, attorneys for appellants.
    Leland S. Smith III, Robert R. Stephenson Jr., Jackson, attorneys for appellees.
    Before IRVING, P.J., ROBERTS and JAMES, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Seventeen customers of the Pizza Hut in Greenwood, Mississippi, filed a complaint in the Leflore County Circuit Court on March 14, 2011, against the employees of the Pizza Hut. In their complaint, the customers claimed that the employees negligently prepared and served them food, causing the customers to seek immediate medical treatment. In response, the employees filed their motion to dismiss, and the circuit court dismissed the case on May 22, 2012. The customers timely filed their appeal and ask this Court to determine whether the circuit court erred in dismissing their case on the ground that it was barred by the doctrines of res judicata, collateral estoppel, and stare decisis. We affirm the dismissal of the case.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 18, 2009, The customers ate at the Pizza Hut in Greenwood. Immediately, several of them complained of a variety of gastrointestinal problems, including nausea, vomiting, and diarrhea, and they sought treatment for these symptoms.

¶ 3. Initially, there were several lawsuits filed against NPC International Inc., which owns the Pizza Hut in Greenwood; A & D Management; and Shane Brown, Pizza Hut’s manager, on behalf of varying combinations of the Customers. However, the employees were not a party to any of these lawsuits. The initial food-poisoning lawsuits were removed to the United States District Court for the Northern District of Mississippi and were consolidated. NPC International filed its motion for summary judgment, and the district court granted the motion on February 24, 2011. The district court found that the customers failed to establish all of the elements of proximate cause, primarily “that [the customers were] unable to establish that they were served food that was unfit for human eonsumption[.]” Thus, they could not establish that a duty was breached. Further, the district court found that the customers could not establish “a causal link between the alleged illness and negligence on the part of Pizza Hut” because a review of their medical records revealed “no conclusive diagnosis of food poisoning.” The customers then appealed to the United States Court of Appeals for the Fifth Circuit, which affirmed the district court’s grant of summary judgment in favor of all defendants in February 2012.

¶ 4. The customers filed the present complaint against the employees on March 14, 2011, in the circuit court. In their complaint, the customers claimed that the employees negligently prepared and served the food that caused them to become ill. As a result of the employees’ negligence, the customers “suffered injuries, including ... loss of income, bodily injuries, mental anguish[,] and emotional distress.” The employees filed their motion to dismiss on April 15, 2011. In their motion to dismiss, the employees argued that the customers’ case was barred by the doctrines of collateral estoppel and stare decisis. They filed an amended motion to dismiss on May 13, 2011, adding a claim of insufficiency of process regarding Dixon. A second amended motion to dismiss was filed on June 3, 2011. This motion to dismiss added that the case was barred by the doctrine of res judicata.

¶ 5. On May 22, 2012, the circuit court entered its order and opinion in the case. It noted that it had considered the motions, briefs, and arguments of counsel. Further, because it had considered matters outside of the pleadings, the circuit court noted the employees’ motion to dismiss would be treated as a motion for summary judgment. The circuit court ordered that the customers’ case be dismissed based on the doctrines of collateral estoppel, stare decisis, and res judicata. The customers filed their notice of appeal on June 5, 2012.

¶ 6. On appeal, they raise one issue with three sub-issues:

Whether the circuit court erred in granting [the employees’] motion to dismiss; [the employees’] amended motion to dismiss; and [the employees’] second amended motion to dismiss on the basis of res judicata, stare decisis, and collateral estoppel.
I. The issue of res judicata cannot be properly raised in this claim because [the] issue of the employees negligently handling the food has not been adjudicated.
II. The circuit court ... erroneously asserted the doctrine of stare decisis, as there are disputed issues of material facts.
III. The doctrine of collateral estop-pel cannot be employed to bar this claim because [the customers] have brought forth a claim that has not been formerly adjudicated.

STANDARD OF REVIEW

¶ 7. The employees filed motions to dismiss the case under Mississippi Rule of Civil Procedure 12(b)(6); however, the circuit court reviewed the motions under Mississippi Rule of Civil Procedure 56, as it considered matters outside of the pleadings.

Rule 12(b)(6) tests the legal sufficiency of a complaint, and provides that dismissal shall be granted to the moving party where the plaintiff has failed to state a claim upon which relief can be granted. In applying this rule a motion to dismiss should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of the claim. Motions to dismiss under Rule 12(b)(6) are considered on the face of the pleadings alone. Quite differently, Rule 56 tests the notion of well-pled facts and requires a party to present probative evidence demonstrating triable issues of fact. Accordingly, Rule 56(c) provides that summary judgment shall be rendered for the moving party 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 judgment as a matter of law.

Moorman v. Crocker, 38 So.3d 662, 665 (¶ 9) (Miss.Ct.App.2010) (quoting Chalk v. Bertholf, 980 So.2d 290, 293 (¶ 4) (Miss.Ct.App.2007)). Both a motion to dismiss under Rule 12(b)(6) and under Rule 56 receive a de novo review because they raise questions of law. Moorman, 38 So.3d at 665 (¶ 9). The customers make no claim relating to the circuit court’s conversion of the Rule 12(b)(6) motion to a Rule 56 motion.

ANALYSIS

I. Res Judicata

¶ 8. “Res judicata is fundamental to the equitable and efficient operation of the judiciary and ‘reflects the refusal of the law to tolerate a multiplicity of litigation.’” Harrison v. Chandler-Sampson Ins. Inc., 891 So.2d 224, 232 (¶ 23) (Miss.2005) (citing Little v. V & G Welding Supply Inc., 704 So.2d 1336, 1337 (Miss.1997)). There are four identities that must be present for the bar of res judicata to apply: “(1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made.... [T]he absence of any one of the elements is fatal to the defense of res judicata.” Id. at (¶ 24) (citations omitted). Additionally, the prior judgment must be a final judgment adjudicated on the merits. Beene v. Ferguson Auto. Inc., 37 So.3d 695, 698 (¶ 7) (Miss.Ct.App.2010) (citing EMC Mortgage Corp. v. Carmichael, 17 So.3d 1087, 1090 (¶ 10) (Miss.2009)).

¶ 9. The customers argue that several of the identities of res judicata are not present; therefore, they claim it could not act as a bar to their lawsuit against the employees. In their federal complaint, the customers alleged that NPC International was liable under the doctrine of responde-at superior, and that it negligently failed to use reasonable care in preparing, maintaining, shipping, packaging, and storing the food. They also claimed that NPC International negligently hired and retained its employees and that the employees were negligently trained. The claims brought in the present suit against the employees are almost identical, with the addition of allegations that employees failed to keep the premises in a reasonably safe condition and that a specific employee negligently prepared food even though she was not trained to prepare food. However, those additional allegations fall under the claims of negligent food preparation and negligent training. In its opinion, the federal court stated that the customers presented no evidence that the food served was not fit for human consumption; thus, there was no proof of the negligent preparation, maintenance, shipping, packing, or storing of food. Additionally, the federal court specifically found that there was no negligent training, since there was no evidence presented that any specific training issues occurred that led to the alleged injuries or that Pizza Hut lacked a training program. Based on this, there is no doubt that the first two identities of res judicata are present, as the claims brought arise out of the same series of facts, and they are almost completely identical to the claims that were decided in the federal case.

¶ 10. The customers submit that they “have filed a new separate suit against the individual employees in their individual capacities.” Therefore, their main argument is that the third identity is not present because the employees were not the same parties in the federal suit nor are they in privity with the parties in the federal suit. To satisfy the third identity of res judicata, the parties in the two actions must be “substantially identical.” Carmichael, 17 So.3d at 1091 (¶ 13) (citing Hogan v. Buckingham ex rel. Buckingham, 730 So.2d 15, 18 (¶ 11) (Miss.1998)). The employees were not named in the federal suit; therefore, for res judicata to act as a bar, this Court must determine if they were in privity with the parties in the federal suit.

¶ 11. “Privity describes a relationship between one who is a party of record and a nonparty that is sufficiently close[,] so a judgment for or against the party should bind or protect the nonparty.” Little, 704 So.2d at 1341 (¶ 29) (citing Hart v. Yamaha-Parts Distributors Inc., 787 F.2d 1468, 1472 (11th Cir.1986)). In Black v. City of Tupelo, 853 So.2d 1221, 1225 (¶ 11) (Miss.2003), the Mississippi Supreme Court held that the individual police officers named in a second suit were in privity with the City of Tupelo, which was named as a defendant in the first and second suits. The police officers were not named defendants in the first suit.

[A] party who is vicariously responsible for the acts of another party is in privity with that party. Thus, [an] employer-employee ... relationship satisfies] privity when the action against the employer ... is based on vicarious liability or respondeat superior.... [A] judgment excusing the master or principal from respondeat superior liability on the ground the servant or agent was not at fault bars a subsequent suit against the servant or agent on the same claim.

21A Federal Procedure: Lawyers’ Edition § 51:241, at 562 (2008).

¶ 12. We find that the employees are in privity with NPC International. As was explained above, the customers asserted that NPC International was liable under the doctrine of respondeat superior; the federal court disagreed and found that it was not responsible. Therefore, a subsequent suit solely against the employees on the same claims must also be barred. The relationship between the employees and NPC International is sufficiently close that logic demands we find them in privity with one another and that the third identity of res judicata is satisfied. All identities are present; thus, the application of res judi-cata was appropriate.

. II. Remaining Issues

¶ 13. Because we find that res judicata bars the customers’ case, it is unnecessary to address the remaining issues of stare decisis and collateral estoppel.

¶ 14. THE JUDGMENT OF THE LE-FLORE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . While it is generally our practice to refer to parties by their proper names, due to the number of parties in the present case and to prevent confusion in the opinion, we will refer to the appellants collectively as "the customers." The individual appellants are: Monique Doss; Nadia Harris; Shavonda Gibbs; Rochell Childs; Darren Childs; Ladarius Johnson; Tamara Green; Darius West; Roger Hawkins; Takeera Johnson; Levan Harris; Joseph Doss; Tyneeta Doss; Justin Childs, a minor by and through Brenda Childs, as next-friend and natural guardian; Nancy Pointer; Mishay Hampton; Tarmeisha Hampton; and Kimeyatter Pointer, a minor by and through Nancy Pointer, as next-friend and natural guardian. The appellees are Jessica Dixon, Marquitta Hawkins, and Christine Whitehall, and they will be referred to collectively throughout as "the employees." When referring to a party in his or her individual capacity, we will use his or her proper name.

      . The defendants in those lawsuits will be collectively referred to as NPC International.

      . Doss v. NPC Int’l Inc., 460 F. App’x 362 (5th Cir.2012).


text:
    Dr. Edwin Love HOLT, Appellant v. MISSISSIPPI STATE BOARD OF DENTAL EXAMINERS, Appellee.
    No. 2012-SA-01370-COA.
    Court of Appeals of Mississippi.
    Feb. 11, 2014.

      Clarence McDonald Leland, Anders Ferrington, Jackson, attorneys for appellant.
    Stanley T. Ingram, Heather Philo Wagner, Jackson, Onetta Whitley, Travis Jonathan Conner, Jackson, attorneys for appel-lee.
    Before IRVING, P.J., ROBERTS and JAMES, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. The Mississippi State Board of Dental Examiners found that Dr. Edwin Holt violated several conditions of a consent agreement related to his practice of dentistry in Mississippi. Following his unsuccessful appeal to the Adams County Chancery Court, Dr. Holt appeals to this Court. Dr. Holt claims that the Board’s decision was not supported by substantial evidence. He also raises numerous issues that center on the concept that the Board violated his due-process rights. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2010, the Board initiated disciplinary proceedings against Dr. Holt based on three allegations that he violated the Mississippi Dental Practice Act by advertising and practicing outside of the scope of dentistry. To avoid a disciplinary hearing, Dr. Holt entered a consent agreement on February 25, 2011. Dr. Holt agreed that his license would be suspended for five years, but his suspension would be stayed for all of that period except six weeks. Dr. Holt was to serve his six-week suspension during two separate three-week periods. The consent agreement provided that Dr. Holt was forbidden from practicing dentistry “directly or indirectly” during his three-week suspension periods. Among other conditions, Dr. Holt was also obligated to successfully complete an ethics course, submit to unannounced inspections, and dismiss a federal lawsuit against the members of the Board.

¶ 3. Dr. Holt’s first three-week suspension period was from April 7, 2011, through April 27, 2011. During that time, Dr. Holt went to his clinic in Natchez, Mississippi, and performed dental services on one of his employees. He also returned to the Natchez clinic to review treatment plans, critique another dentist’s work, and participate in the “morning huddles.” During the “morning huddles,” Dr. Holt instructed the staff regarding the manner in which patients would be treated. The Board conducted an informal, nonadjudica-tory hearing on May 13, 2011. The purpose of that hearing appears to have been to determine whether Dr. Holt was making adequate progress regarding his compliance with the terms of the consent agreement. During the informal hearing, Dr. Holt stated that he had not visited his clinic during the initial three-week suspension period for any purpose other than to feed his horses.

¶4. As mentioned above, the consent agreement provided that Dr. Holt’s dental practice “shall be subject to unannounced, periodic inspections” during the stayed five-year suspension period. On Thursday, August 4, 2011, two investigators employed by the Board traveled to Dr. Holt’s clinic to conduct a periodic inspection. According to the investigators, Dr. Holt and his staff interfered with the investigation. The investigators claimed that Dr. Holt instructed his staff to stand over them as they copied his files. The investigators also stated that they cut their investigation short because Dr. Holt acted hostilely toward them. Specifically, the investigators said that Dr. Holt kicked a bucket behind his clinic, and broke a lamp out of frustration at their presence. As a result, the investigators had to complete their investigation the following week after obtaining a search warrant from the Adams County Circuit Court.

¶ 5. On August 19, 2011, Karen Wilson, a licensing investigator supervisor for the Board, alleged that Dr. Holt had breached numerous conditions of the consent agreement. On February 3, 2012, the Board conducted a hearing on Wilson’s complaint. That same day, the Board held that Dr. Holt had committed eleven breaches of the consent agreement. Consequently, the Board rescinded the previous stay. In effect, the Board suspended Dr. Holt’s license until February 25, 2016.

¶ 6. Dr. Holt appealed to the chancery court. He claimed that the Board erred when it suspended his license for five years. Specifically, Dr. Holt argued that the Board should not have found that: (1) he directly practiced dentistry while his license was suspended; (2) he indirectly practiced dentistry while his license was suspended; (3) he answered untruthfully during a hearing before the Board; (4) he interrupted the Board’s inspection; (5) he failed to dismiss his lawsuit with prejudice as required by the consent order; (6) he failed to complete the ethics program as required by the consent order; and (7) he had over-sedated some of his patients. Dr. Holt also claimed that the Board violated his due-process rights during practically every stage of the proceedings before the Board. The chancellor held that there was not substantial evidence to support the Board’s finding that Dr. Holt had interrupted a periodic inspection. The chancellor also found that the Board had violated Dr. Holt’s right to due process when it failed to provide discovery related to its claim that he had over-sedated some of his patients. Otherwise, the chancellor affirmed the remainder of the Board’s decisions. Dr. Holt appeals.

STANDARD OF REVIEW

¶ 7. “Judicial review of an administrative decision is limited.” McFadden v. Miss. State Bd. of Med. Licensure, 735 So.2d 145, 151 (¶ 20) (Miss.1999). This Court will not disturb an administrative agency’s decision unless the decision is unsupported by substantial evidence, arbitrary or capricious, beyond the scope or power granted to the agency, or in violation of one’s constitutional rights. Dawson v. Miss. State Bd. of Massage Therapy, 949 So.2d 829, 831 (¶ 5) (Miss.Ct.App.2006). “A rebuttable presumption exists in favor of [an] administrative agency[’s] decisions.” Id. “Reviewing courts are bound by the record, and are prohibited from reweighing the facts of the case.” Id. However, “[w]hether a party received due process is a question of law, which [an appellate court reviews] de novo.” Akins v. Miss. Dep’t of Rev., 70 So.3d 204, 208 (¶ 9) (Miss.2011).

ANALYSIS

I. DUE PROCESS

¶ 8. Dr. Holt argues that he “was denied any semblance” of due process during the entire proceeding before the Board. According to Dr. Holt, “[f]rom the very beginning of [his] pilgrimage ... his rights have been violated by the Board, its investigators[,] and its [p]rosecutorial [c]ounsel.” Both the United States and Mississippi Constitutions guarantee Dr. Holt due process of law before an administrative agency. U.S. Const, amend. XIV; Miss. Const, art. 3, § 4. “Due process always stands as a constitutionally grounded procedural safety net in administrative proceedings.” Dawson, 949 So.2d at 831 (¶7).

¶ 9. Dr. Holt actually raises several issues under this single heading. Many of Dr. Holt’s claims under this heading are entirely unrelated to his right to due process. Before we turn to Dr. Holt’s myriad of issues, it is necessary to address the fact that in his appellate brief, Dr. Holt attempts to inject matters that do not appear in the record. “Appellate review of an agency decision is limited to the record and the agency’s findings.” Bd. of Law Enforcement Officers Standards & Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996). Consequently, we will not discuss matters that do not appear in the record. We turn to Dr. Holt’s issues on appeal.

A. The Right to Counsel

¶ 10. After Dr. Holt had agreed to the terms of the consent agreement, the Board requested that he attend an informal, no-nadjudicatory hearing to discuss the status of his compliance with the terms of the consent agreement. On the originally scheduled date of the informal hearing, Dr. Holt’s attorney was involved in a traffic accident. Because Dr. Holt’s attorney could not attend the informal hearing, the Board postponed it until May 13, 2011.

¶ 11. On the rescheduled date of the informal hearing, Dr. Holt appeared without an attorney. Dr. Holt asked whether he needed an attorney, and he was told “no.” During the informal hearing, the prosecutor asked whether Dr. Holt had gone to his clinic during his initial three-week suspension. Dr. Holt said that he had, but only to feed horses that he kept on the clinic’s property.

¶ 12. Later, Wilson accused Dr. Holt of lying to the Board. In his answer to the Board’s complaint, Dr. Holt admitted that he had “performed certain dental services” during his initial three-week suspension. During the subsequent adjudicatory hearing, three witnesses testified that Dr. Holt was not truthful when he told the Board that he had only been at his clinic to feed his horses. As a result, the Board found that Dr. Holt breached the consent agreement by giving a false statement during the informal hearing. According to Dr. Holt, because the Board did not tell him that he needed to have an attorney present during the informal hearing, “he was deprived of his attorney on that day by the Board.”

¶ 13. Dr. Holt cites no authority that expressly provides that the Board was obligated to ensure that he had an attorney present at an informal, nonadjudicatory hearing. Mississippi Code Annotated section 73-9-65 (Rev.2012) only addresses a dentist’s right to have an attorney present during disciplinary hearings. Specifically, section 73-9-65 provides that “[t]he accused may be present at the hearing in person, by counsel, or both.” (Emphasis added). At the time of the informal, no-nadjudicatory hearing, Dr. Holt was not “accused” of improper conduct. The Board merely sought to determine the status of his compliance with the terms of the consent agreement. The Board had not expressly accused Dr. Holt of violating any particular condition of the consent agreement at that time.

¶ 14. The Board postponed the original date of the informal hearing to accommodate Dr. Holt’s attorney. Even so, Dr. Holt appeared at the informal hearing without an attorney. The Board was not obligated to ensure that Dr. Holt had an attorney during the informal, nonadju-dicatory hearing. We find no merit to this claim.

B. Excessive Fine

¶ 15. Next, Dr. Holt claims that the Board’s decision to suspend his license is the equivalent of an excessive fine. To support his argument, Dr. Holt contends that he will lose “in the neighborhood of 1.2 million dollars in gross revenue per year” while his license is suspended. Dr. Holt reasons that, therefore, the Board should not have suspended his license for five years.

¶ 16. The Mississippi Constitution provides that “[cjruel or unusual punishment shall not be inflicted, nor excessive fines be imposed.” Miss. Const. art. 3, § 28. However, under certain circumstances, the Board clearly has the authority to revoke or suspend a dentist’s license. Miss.Code Ann. § 73-9-61(1) (Rev.2012). A license to practice medicine has been described as a “valuable property right.” Montalvo v. Miss. State Bd. of Med. Licensure, 671 So.2d 53, 57 (Miss.1996) (citing Miller v. State Bd. of Pharmacy, 262 So.2d 188, 189 (Miss.1972)). However, in Mississippi State Board of Nursing v. Wilson, 624 So.2d 485, 494 (Miss.1993), a nursing license was categorized as a “revocable privilege,” which, “much like a license to practice medicine and dentistry, represents a property interest, not a fundamental right.” (Emphasis added).

¶ 17. As the Board notes, Dr. Holt’s argument is essentially that if a professional earns a substantial enough income, the suspension of his license is an excessive fine. Stated differently, Dr. Holt claims that a dentist’s license should be untouchable if that dentist has a lucrative practice. We are not persuaded by Dr. Holt’s reasoning. It was not an excessive fine to suspend Dr. Holt’s license for five years. There is no merit to this claim.

C. Alleged Prosecutorial Misconduct

¶ 18. Dr. Holt raises several claims centered on the concept that prose-cutorial counsel behaved improperly during the adjudicatory hearing. Specifically, Dr. Holt claims that the prosecutorial counsel engaged in reversible misconduct when he: (1) called him a liar during the adjudicatory hearing; (2) asked leading questions during the adjudicatory hearing; (3) expressed his opinion that Dr. Holt was not credible; and (4) asked three witnesses to comment on Dr. Holt’s previous statement that he only visited his clinic to feed his horses during his initial three-week suspension. Before we delve into Dr. Holt’s claims, we note that “the formalities of practice, procedure, and evidence are relaxed in all administrative proceedings, including those concerning licenses.” Miss. Bd. of Veterinary Med. v. Geotes, 770 So.2d 940, 943 (¶ 14) (Miss.2000).

¶ 19. Dr. Holt takes issue with the prosecutorial counsel’s statement that Dr. Holt lied during the informal, nonadju-dicatory hearing. Dr. Holt argues that the prosecutorial counsel is prohibited from commenting on an accused’s credibility. However, there was nothing inherently improper about the prosecutorial counsel’s statement because Dr. Holt had been accused of giving a false answer during the previous hearing. And the prosecutorial counsel’s comment was directed at Dr. Holt’s specific statement, rather than his credibility as a whole.

¶ 20. Next, Dr. Holt argues that the prosecutorial counsel should not have been allowed to ask leading questions during the adjudicatory hearing. Dr. Holt also claims that the prosecutorial counsel impermissibly asked witnesses to comment on Dr. Holt’s previous statement during the informal, nonadjudicatory hearing. That is, Dr. Holt argues that the prosecu-torial counsel should not have been allowed to ask three witnesses whether it was true that Dr. Holt only visited his clinic to feed his horses during his initial three-week suspension. However, Dr. Holt did not object to those questions during the adjudicatory hearing. Failure to raise a contemporaneous objection to evidence constitutes a waiver of the issue on appeal. Patton v. State, 742 So.2d 150, 153 (¶ 9) (Miss.Ct.App.1999). Therefore, this issue is proeedurally barred.

D. Impermissible Conflicts of Interest

¶ 21. According to Dr. Holt, the prosecutor should have recused himself from Dr. Holt’s adjudicatory hearing. Dr. Holt’s claim is based on the fact that he had unsuccessfully filed a bar complaint against the prosecutor. That bar complaint was later dismissed because it had no merit.

¶ 22. In the context of criminal trials, “the mere filing of a lawsuit, wherein a prisoner is allowed to proceed in forma pauperis, is insufficient to require recusal of a trial judge named as a defendant in that lawsuit where there is no evidence in the record which demonstrates that the trial judge is biased or unqualified.” Evans v. State, 725 So.2d 613, 678-79 (¶ 282) (Miss.1997). Additionally, “a judge is not disqualified merely because a litigant sues or threatens suit.” In re Hipp Inc., 5 F.3d 109, 116 (5th Cir.1993). By extension, the mere filing of a bar complaint against the Board’s prosecutor is insufficient to force him to recuse.

¶ 23. Reversible error does not stem from the fact that the prosecutorial counsel vigorously presented his case. That is to be expected. And the outcome of Dr. Holt’s disciplinary hearing had no bearing on the outcome of a bar complaint that had been found lacking in merit years earlier. Dr. Holt does not point to any specific instances where the prosecutorial counsel’s bias was evident. Dr. Holt was obligated to point to specific factual issues supporting his claim for relief accompanied by citations to the record showing where the evidence relating to the issues may be found. Moody v. State, 838 So.2d 324, 338 (¶ 57) (Miss.Ct.App.2002). “Without such support for his arguments, an appellate court cannot adequately consider an issue raised on appeal and make an informed decision as to whether it has ... merit.” Id.

¶ 24. Next, Dr. Holt claims that the Board’s investigator, Wilson, should have been prohibited from participating in the disciplinary hearing. “Administrative proceedings should be conducted in a fair and impartial manner, free from any suspicion of prejudice or unfairness.” Freeman v. Pub. Emps' Ret. Sys. of Miss., 822 So.2d 274, 281 (¶ 21) (Miss.2002). “Due process guarantees neutrality on the part of those sitting in a judicial or semi-judicial capacity.” Id. “[The supreme court] has rejected the proposition that administrative agencies cannot perform both investigative and adjudicative functions.” Id. at (¶ 22). “While administrative agencies may perform both investigative and adjudicative functions, those functions cannot be performed by the same person.” Id. at (¶ 23). “[T]here is a presumption that the officers conducting the hearing and the members of the Board behave honestly and fairly in the conduct of the hearings and in the decision-making process.” McFadden, 735 So.2d at 158 (¶ 53). “Absent some showing of personal or financial interest on the part of the hearing officer or evidence of misconduct on the officer’s part, this presumption is not overcome.” Id.

¶25. Wilson did not act in an adjudicatory capacity at Dr. Holt’s disciplinary hearing. She merely investigated the claims against Dr. Holt, assisted in preparing the complaint against him, and testified at the disciplinary hearing. Because Wilson did not act in both an investigatory and adjudicatory capacity, there is no merit to Dr. Holt’s claim.

E. Insufficient Notice

¶ 26. Finally, Dr. Holt claims that he received insufficient notice of the Board’s claims in counts thirteen, fourteen, and fifteen that he sedated some of his patients beyond anxiolysis. The complaint against Dr. Holt did not allege that he took any specific patients beyond anx-iolysis on any particular date. On November 28, 2011, Dr. Holt requested that the Board disclose all information and material that was discoverable under the Board’s rules of procedure.

¶27. “Courts have never required that there be a particular form of notice or that particular procedures be adopted in order to satisfy constitutional due process requirements.” Geotes, 770 So.2d at 943 (¶ 13). “[D]ue process is not a fixed content unrelated to time, place and circumstances.” Id. “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Id. “The fundamental requirement of due process is simply the opportunity to be heard at a meaningful time and in a meaningful manner.” Id. “[T]he formalities of practice, procedure, and evidence are relaxed in all administrative proceedings, including those concerning licenses.” Id. at (¶ 14). “Further, due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections.” Id. In Miller, 262 So.2d at 189, the supreme court held:

The revocation of a professional license is a matter of the most serious consequences. Proceedings directed toward that end have not been regarded in Mississippi as criminal in character. Nevertheless, the professional man accused of derelictions of such gravity as to justify revocation of his license to practice his profession, is entitled, as a matter of right, to be informed of the nature of the charge against him, if not with the exact specificity required in a criminal indictment, the charge must be made with not less exactitude and fullness than would be necessary in a bill of complaint or declaration in a civil case. Moreover, he is entitled to demand and obtain a bill of particulars or require that the charge be made more definite and certain under circumstances prescribed in the statutes, practice and procedure of this State.

¶ 28. The chancellor held that “[i]t is not fair to withhold both the identities and dates of alleged violations from an accused until it is too late for him to have a reasonable opportunity to rebut the allegations.” We agree. Accordingly, we reverse the Board’s decision to suspend Dr. Holt’s dental license based on the allegation that Dr. Holt sedated patients beyond anxioly-sis. However, our decision does not affect the Board’s decision to suspend Dr. Holt’s license for any other reason.

II. SUBSTANTIAL EVIDENCE

¶ 29. Dr. Holt claims that there was not substantial evidence to support the Board’s decision. Similarly, Dr. Holt argues that the Board’s decision was arbitrary and capricious. “Because the li-censure statutes and regulations at issue in this case are penal in nature, the Board [was] required to prove its case ... by clear' and convincing evidence, and the statutes and regulations at issue must be strictly construed in favor of Dr. [Holt].” McFadden, 735 So.2d at 152 (¶ 24). “Substantial evidence is ‘something less than a preponderance of the evidence but more than a scintilla or glimmer. The reviewing court is concerned only with the reasonableness of the administrative order, not its correctness.’ ” Sierra Club v. Miss. Envtl. Quality Permit Bd., 943 So.2d 673, 678 (¶ 11) (Miss.2006) (quoting Miss. Dep’t of Envtl. Quality v. Weems, 653 So.2d 266, 280-81 (Miss.1995)). Furthermore, the Board’s decision was “arbitrary or capricious if the agency entirely failed to consider an important aspect of the problem, or offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. As previously mentioned, “[a] rebutta-ble presumption exists in favor of agency decisions, and [an appellate court] may not substitute its own judgment for that of the agency.” Id.

¶ 30. The Board held that Dr. Holt’s license should be suspended because he directly practiced dentistry during his initial three-week suspension period. In his first amended answer to the Board’s complaint, Dr. Holt admitted that “on April 15, 2011, he performed certain dental services on Dee Hammett.” During the adjudicatory hearing, Dr. Holt testified that he “numbed [Hammett] up ... and [he] removed her crown.” Dr. Holt also testified that “looking back at it, it can be considered dentistry, and I shouldn’t have done it[.]”

¶31. Mississippi Code Annotated section 73-9-3 (Rev.2012) defines “dentistry” as the “evaluation, diagnosis, prevention^] and/or treatment (nonsurgical, surgicalf,] or related procedures) of diseases, disorders[,] and/or conditions of the oral cavity, maxillofacial area[,] and/or the adjacent and associated structures and their impact on the human body....” We agree with the chancellor that “the numbing of a patient [and] removal and insertion of a crown is certainly within” the definition of dentistry. Consequently, we find that the Board acted well within its discretion when it held that there was clear and convincing evidence that Dr. Holt violated the terms of the consent agreement by directly practicing dentistry during his initial three-week suspension period.

¶ 32. Although this conclusion is in and of itself sufficient to affirm the Board’s decision, we note that there was substantial evidence to find that Dr. Holt violated other terms of the consent agreement. There was substantial evidence that Dr. Holt indirectly practiced dentistry during his initial three-week suspension period. Another dentist testified that Dr. Holt visited his clinic during his suspension period and participated in “morning huddles.” During those meetings, Dr. Holt discussed treatment plans for specific patients, discussed patient records, and critiqued the work of a visiting dentist. There was also substantial evidence that Dr. Holt gave an untruthful statement that he had only visited his clinic to feed his horses during his three-week suspension. Further, there was substantial evidence that Dr. Holt failed to satisfy his obligation to successfully complete the “ProBe” ethics course. Dr. Holt took the ProBe ethics course, but he failed it. The assessment report that followed the ProBe ethics course stated that Dr. Holt arrived late and declined to participate in the discussions. The program director reported that Dr. Holt was inattentive, and he twice had to be reminded to put away his cell phone. Additionally, Dr. Holt left the seminar early. According to the program director, Dr. Holt’s “poor participation and lack of preparation and engagement [led] us to the assessment that he did not demonstrate the behavior and necessary understanding to warrant even a conditional pass of the course.”

¶ 33. “Issues of fact and credibility are the primary responsibility of the trier of fact.” McFadden, 735 So.2d at 152 (¶ 26). “Accordingly, [an appellate court] should not reweigh the facts nor substitute its judgment for that of the fact finder as to credibility issues.” Id. We find there was substantial evidence to support the Board’s decision that Dr. Holt violated a number of the conditions set forth in the consent agreement. Furthermore, the Board’s decision was not arbitrary and capricious. It follows that we find no merit to this issue.

III. THE BOARD’S AUTHORITY

¶ 34. Finally, Dr. Holt claims that the Board, the prosecutor, and the Board’s investigators “all acted beyond their authorized powers.” Much of Dr. Holt’s argument is based on matters that do not appear in the record. Additionally, Dr. Holt failed to support his argument with authority. Mississippi Rule of Appellate Procedure 28(a)(6) requires an appellant’s brief to “contain the contentions of [the] appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” Likewise, Mississippi case law has consistently held that the “[f]ailure to cite any authority is a procedural bar, and [a reviewing court] is under no obligation to consider the assignment.” Taylor v. Kennedy, 914 So.2d 1260, 1262 (¶ 4) (Miss.Ct.App.2005) (citation omitted). Procedural bar notwithstanding, the Board clearly has the authority “[t]o regulate the practice of dentistry ... and to promulgate reasonable regulations as are necessary or convenient for the protection of the public.” Miss.Code Ann. § 73-9-13(b) (Rev.2012). Additionally, the Board has the authority “[t]o prosecute, investigate!],] or initiate prosecution for violations of the laws of the state pertaining to practice of dentistry ... or matters affecting the rights and duties, or related thereto.” Miss.Code Ann. § 73-9-13(m) (Rev.2012). We find no merit to Dr. Holt’s claim that the Board, the prosecutor, or the Board’s investigators acted beyond the scope of their authority. Therefore, this issue is merit-less.

¶ 35. THE JUDGMENT OF THE ADAMS COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Wilson originally raised fifteen allegations against Dr. Holt, but the Board only pursued eleven of those allegations during the subsequent disciplinary hearing.

      . Dr. Holt attempts to raise matters that appear outside of the record. As previously mentioned, an appellate court can only consider matters that appear in the record. McFadden, 735 So.2d at 160 (¶ 61). Therefore, we do not discuss those matters that appear outside of the record.

      . In its brief, the Board defined “anxiolysis” as "the pharmacological reduction of anxiety through the administration of a minor tranquilizer which allows for the uninterrupted interactive ability in a totally awake patient with no compromise in the ability to maintain patient airway continuously and without assistance.”