author: PIERCE, Justice,

text:
    LAUDERDALE COUNTY SCHOOL BOARD and Randy Hodges, Superintendent v. Esau BROWN, as Next Friend of A.B. and Jacquelyn Ratcliff, as Next Friend of M.C.
    No. 2012-CA-00688-SCT.
    Supreme Court of Mississippi.
    Jan. 31, 2013.
    Lindsey Nicole Oswalt, Holmes S. Adams, Jessica Iris Morris, Ridgeland, Robert H. Compton, John G. Compton, Meridian, attorneys for appellants.
    George Howard Spinks, attorney for ap-pellees.

      Before DICKINSON, P.J., RANDOLPH, P.J., and PIERCE, J.
   PIERCE, Justice,

for the Court:

¶ 1. On March 8, 2012, an incident occurred at West Lauderdale High School which led to the suspension and eventual expulsion of four male students. On March 9, 2012, the principal notified the four students’ parents and/or guardians of the immediate suspension, which was to occur March 19 through March 23, 2012 (following a week of Spring Break). The four male students, for purposes of anonymity, are identified herein as C.D., E.F., G.H., and I.J. On March 23, 2012, the principal contacted the parents and/or guardians and notified them that the four male students were recommended for expulsion for one calendar year. The matter was pending before the school board, and if the board approved the recommendation, the students could request a hearing before the school board to continue the suspension until such hearing occurred. Three of the four students, E.F., C.D., and G.H., requested a hearing, which was set for April 3, 2012.

¶ 2. Prior to the disciplinary hearing, parents of E.F. and C.D. applied for separate ex parte temporary restraining orders (TROs) in the Lauderdale County Youth Court. The ex parte temporary restraining orders were granted without notice on March 28 and March 30, respectively, ordering that E.F. and C.D. be allowed to return to school and enjoining the superintendent and school board from expelling them or assigning them to an alternative school. These two TROs were set for hearing on April 2, 2012. At the hearing, the school district objected to reenrollment because the youth court lacked jurisdiction to order the students’ return to school. Nonetheless, the court ordered the reen-rollment.

¶ 3. The school board held a hearing on April 3, 2012, on the recommendation for expulsion of the four students. After the hearing, the school board expelled all four students for one calendar year on the basis that their presence in school was a safety concern for other students and their actions had constituted a violent act. Although none of the students filed a procedurally proper bill of exceptions or appeal ■with the local courts, on April 10, 2012, C.D. and E.F., through counsel, moved the youth court for reenrollment. The youth court granted this motion and treated it as an appeal on the record of the expulsion and “not a matter de novo.” The youth court relied on Mississippi Code Section 43-21-621, which allows youth courts to reenroll students under certain circumstances. See Miss.Code Ann. § 43-21-621 (Rev.2009). The youth court found that the students’ actions did not fit either category of the statute, which does not permit a youth court to reenroll students expelled for commission of a violent act or an offense threatening the safety of others.

¶4. The youth court further criticized the school board’s hearing, citing due-process concerns, because it was not held before an independent hearing officer. Additionally, the school board was reprimanded because the hearing was held pri- or to the students’ criminal trials, at which they chose to plead the Fifth Amendment. The youth court then imposed additional requirements on the school board, such as requiring the school to provide the same subjects and credits, if the students were placed in alternative schools upon reenrollment.

¶ 5. Shortly thereafter, the school board timely appealed the youth court’s decision to this Court and moved the youth court to stay its judgment pending appeal. Superintendent Randy Hodges was named in an amendment of the notice of appeal on May 9, 2012. On July 25, 2012, the youth court denied the board’s and superintendent’s motion to stay pending appeal, and the school board moved this Court to impose a stay on the underlying judgment until a final decision on the merits could be reached. On August 15, 2012, this Court granted the motion to stay and expedited the appeal.

FACTS

¶ 6. All events giving rise to the sexual battery underlying this case allegedly occurred on March 8, 2012, after school had ended for the day. K.L., a seventh-grade female student, was at track practice at West Lauderdale High School when she left practice momentarily to go to the restroom in the school gym. Track practice was held at the school football field, as there was no separate track field. As K.L. left the restroom, which was located in the girls’ locker room, C.D., E.F., G.H., and I.J., allegedly entered the same room. It is alleged that E.F. came up behind K.L. and pulled her gym shorts down, and then he put a condom on himself. Allegedly, K.L. walked into an adjoining room and the male students followed her. Then, one of the boys allegedly pulled her into his lap and penetrated her with his fingers, and another followed suit. Next, E.F. allegedly tried to push her head down to perform oral sex on him.

¶ 7. During the alleged incident, KL.’s classmate, M.N., went to look for K.L. He allegedly heard her crying from the locker room, so he went to see what was happening. He stated that he saw two of the male students guarding two doors and K.L. lying on the floor while E.F. was attempting to force K.L. to perform oral sex on him. K.L., upon seeing M.N., ran over to him, and M.N. grabbed KL.’s hand and took her from the room.

¶ 8. Principal Kevin Cheatham reported these allegations to the sheriffs office. An investigation began, and the boys gave statements.

¶ 9. The issues before this Court are:

1) Whether the youth court has the authority pursuant to Mississippi Code Section 43-21-621 to order the Lauderdale County School Board to reenroll E.F. and C.D.;
2) Whether the school board was required to await the conclusion of a student’s criminal trial before it conducted a procedurally and constitutionally proper expulsion hearing;
3) Whether C.D. and E.F.’s joint petition to the youth court was improper, as no statutorily mandated appeal to the Lauderdale County Circuit Court was ever taken, and whether the school board’s decision to expel E.F. and C.D. was arbitrary and capricious and supported by substantial evidence; and
4) Whether the youth court exceeded its authority in requiring the school board to provide C.D. and E.F. the same courses at the alternative school as they were taking at the high school.

¶ 10. Because Issue One is dispositive, we need not address Issues Two, Three, and Four.

DISCUSSION

I. Whether the Youth Court has the authority pursuant to Mississippi Code Section 43-21-621 to order the Lauderdale County School Board to re-enroll E.F. and C.D.

¶ 11. Mississippi Code Section 43-21-621 governs a youth court’s power with regard to the reenrollment of students. This statute states: “The youth court may, in compliance with the laws governing education of children, order any state-supported public school in its jurisdiction after notice and hearing to enroll or re-enroll any compulsory-school-age child in school, and further order appropriate educational services.” Miss.Code Ann. 43-21-621 (Rev.2009). However, any student who has been suspended or expelled by a public school for possession of a weapon on school grounds, for an offense involving a threat to the safety of other persons, or for the commission of a violent act shall not be reenrolled. Id. The statute defines a violent act as “any action which results in death or physical harm to another or an attempt to cause death or physical harm to another.” Id. The superintendent of the school district to which such child is ordered may assign the child to the alternative-school program of the district, and the court will have jurisdiction to enforce school and education laws. Id.

¶ 12. The Lauderdale County School Board raises two parts to this issue: 1) Because the students (E.F. and C.D.) are not “compulsory-school-age” children as defined by the statute empowering a youth court to order reenrollment of an expelled student, the youth court has no power to reenroll them; and 2) the sexual battery allegedly committed by E.F. and C.D. was a “violent act,” or an “offense involving a threat to the safety of other persons,” such that the governing statute prohibits the youth court from ordering their reenrollment.

¶ 13. As stated above, the youth court has the power to reenroll students who have been suspended or expelled from public school if the student is of “compulsory school age.” In other words, a “child who has not attained the age of seventeen (17) years on or before September 1 of the calendar year” is entitled to intervention by a youth court pursuant to Section 43-21-621. Miss.Code Ann. § 37-13-91 (Rev. 2007).

¶ 14. Because both students turned seventeen before September 1, 2012 (C.D. turned seventeen on October 15, 2011, and E.F. turned seventeen on July 23, 2011), the students’ ages are undisputed. The statute clearly defines what the Legislature meant by “compulsory school age.” The students argue that, although they are not of compulsory school age, the youth court still has general jurisdiction over them. However, because the statute states otherwise with regard to reenrollment of students expelled from school, we find that the youth court did not have power over the students to order their reenrollment under this statute.

¶ 15. Second, the school board argues that the youth court exceeded its authority by ordering reenrollment of E.F. and C.D., because the students were expelled for the commission of a “violent act” or an “offense threatening the physical safety of others.” We agree. The youth court, in its Order, stated that the actions of the students were not “violent,” because the victim was not harmed or injured in any way. This Court intends to make clear that, should evidence indicate that a sexual assault or attempted sexual assault occurred, it is, without question, a violent act.

¶ 16. Mississippi Code Section 43-21-621 states that:

The youth court shall not order the enrollment or reenrollment of a student that has been suspended or expelled by a public school ... for possession of a weapon on school grounds, for an offense involving a threat to the safety of other persons or the commission of a violent act. For the purpose of this section “violent act” means any action which results in death or physical harm to another or an attempt to cause death or physical harm to another.

Miss.Code Ann. § 43-21-621 (Rev.2009).

¶ 17. If the evidence the school board was presented indicated that a sexual assault occurred, then it was, without a doubt, a violent act.. Thus, the youth court, pursuant to Mississippi Code Section 43-21-621, did not have the power to order the reenrollment of the students for committing a violent act on school campus.

CONCLUSION

¶ 18. The youth court exceeded its statutory authority by reenrolling C.D. and E.F. in high school and/or alternative school, because 1) the students (C.D. and E.F.) are not “compulsory-school-age” children, as defined by the statute empowering a youth court to order reenrollment of an expelled student the youth court has no power to reenroll them; and 2) the youth court would not have the power to order the reenrollment of the students for committing a violent act on school campus, pursuant to Mississippi Code Section 43-21-621. Because the discretion in this situation lies in the school board’s hands, and not the youth court’s, the decision of the Lauderdale County Youth Court is hereby reversed and rendered.

¶ 19. REVERSED AND RENDERED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Johnny R. YOUNG Jr. a/k/a Johnnie R. Young Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CA-00629-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2011.
    Rehearing Denied Feb. 7, 2012.

      Victor Israel Fleitas, Tupelo, attorney for appellant.

      ■ Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. Johnny R. Young Jr. was convicted, under Mississippi Code Annotated section 97 — 3—95(1)(d) (Rev.2006), of three counts of sexual battery of a minor and sentenced to three concurrent life sentences in the custody of the Mississippi Department of Corrections (MDOC). Young appeals his convictions, and finding no reversible error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In June 2007, Young’s eight-year-old daughter, “Cindy,” confided to a family friend, Richard Dunsford, and her paternal step-grandmother that her father had sexually assaulted her on numerous occasions during the past several years. The Union County Sheriffs Office was contacted, and with the involvement of Child Protective Services, it began an investigation. Cindy was interviewed by Angie Floyd, a forensic-interview specialist with the Children’s Advocacy Center in Tupelo, Mississippi, on June 26, 2007. Cindy also was examined in Memphis, Tennessee, at the Sexual Assault Resource Center by a sexual-assault nurse examiner, Elizabeth Thomas. In her report, Thomas noted that the exam findings were “consistent with [a] history of blunt penetrating trauma of the oral, rectal, hymen, and/or vaginal orifice.”

113. In November 2007, Young was indicted on three counts of sexual battery of a minor. The indictment referenced incidences occurring between November 3, 2005, and November 3, 2006. A jury trial was held September 21-28, 2009, and Young was convicted on all three counts. The circuit court sentenced Young to three concurrent life sentences in the custody of the MDOC. Young filed a motion for a judgment notwithstanding the verdict (JNOV) and, in the alternative, a motion for a new trial, which the circuit court denied. Young timely filed an appeal, alleging that the circuit judge had erred in the admission or exclusion of certain evidence and that the evidence was insufficient to support the verdict.

I. Whether the circuit court erred in admitting into evidence numerous out-of-court statements made by Cindy to other individuals.

¶ 4. Young filed a motion in li-mine to exclude various out-of-court statements made by Cindy, arguing that the statements were hearsay, prior consistent statements, and violations of the Confrontation Clause. Young also made contemporaneous objections to the introduction of such evidence during the trial. Specifically objected to at trial were admission of the videotaped forensic interview conducted by Floyd, which was presented to the jury for viewing, and also the testimony of Dunsford in whom Cindy had confided. Young argues on appeal that the admission of this evidence constituted error.

¶ 5. “The standard of review governing the admission or exclusion of evidence is abuse of discretion.” Catchings v. State, 39 So.3d 943, 950 (¶ 29) (Miss.Ct.App.2009) (citing Williams v. State, 991 So.2d 593, 597 (¶ 8) (Miss.2008)). A circuit court’s decision to admit or exclude evidence will only be reversed if it “result[s] in prejudice and harm or adversely affect[s] a substantial right of a party.” Id. at 951 (¶ 34) (quoting Hammons v. State, 918 So.2d 62, 65 (¶ 10) (Miss.2005)).

¶ 6. Since Cindy was under twelve years of age, the circuit court ruled that her statements fell under Mississippi Rule of Evidence 803(25), which is the tender-years hearsay exception. This rule provides:

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

In assessing whether such testimony is reliable, the comments to the rule list several factors to be considered. These factors are:

(1) whether there is an apparent motive on declarant’s part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declarant’s faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declar-ant’s age, knowledge, and experience make it unlikely that the declarant fabricated.

M.R.E. 803(25) cmt.

¶ 7. We find no abuse of discretion in the court’s admission of the forensic interview and the out-of-court statements made by Cindy to Dunsford. The videotaped forensic interview showed Cindy spontaneously drawing pictures of the sexual abuse that occurred. Floyd testified that she did not prompt Cindy to draw the pictures; in fact, Floyd was not even present in the room when Cindy did so. Therefore, we find that it falls under the tender-years exception. Furthermore, the circuit judge, in addressing the contemporaneous objection to Dunsford’s testimony, thoroughly addressed the factors to be considered in allowing such hearsay evidence and appropriately applied them, stating:

This is a statement under 803(25), and that the child being the declarant, there’s been no proof of any motive to lie on her part or anything disparagement of character. It’s a statement that was only heard by the witness so that actually favors not allowing — clearly, the statements were [made] spontaneously. The timing and the relationships are not particularly notable issues. It does not appear that there’s any possibility of faulty recollection by the witness — by the declarant. This is by the declarant. That’s an issue of her being a child. Certainly, the statements were made.
There’s no doubt that favors admission. Credibility about the person testifying has not been called into question. Age and maturity of the declarant is an issue for the jury. Whether suggestive techniques were used, obviously, it was made spontaneous. There was no inquiry made.

We find no abuse of the circuit court’s discretion in admitting Cindy’s prior statements at trial.

II. Whether the circuit court erred in admitting into evidence prior bad acts of Young as they were prejudicial.

¶ 8. Young filed a motion in limine to exclude evidence of prior bad acts, which the circuit judge denied. Anna Smith, Young’s half-sister, presented testimony that twenty years ago, when Young was fifteen years old and Anna was five years old, Young had Anna take off her pants, removed his pants, and bounced her on his leg, rubbing his penis against her. Anna’s mother, who was also Young’s stepmother, walked in and witnessed this event. Young was sent to Meridian, Mississippi, for several months to receive mental-health treatment. Additionally, Young’s father, Johnnie Edward Young Sr., testified that, in 2004, Cindy told him and his wife “that her daddy put his tongue on her bottom.” As this incident occurred in 2004, the testimony concerns acts prior to those charged in the indictment. Young contends that the admission of this evidence was error, especially as it “was too remote in time and different from the events alleged by [Cindy],” and that the State “failed to establish the alternate basis for the admissibility of the evidence.”

¶ 9. Generally, under Mississippi Rule of Evidence 404(b), evidence submitted “to prove the character of a person in order to show that he acted in conformity therewith” is not admissible. However, in Derouen v. State, 994 So.2d 748 (Miss.2008), the Mississippi Supreme Court carved out an exception in cases that involve the sexual assault of a minor, stating:

Sex crimes against children are furtive, secret events usually lacking evidence other than the conflicting testimony of the defendant and the victim. The only viable proof of motive, intent, plan, knowledge, identity or absence of mistake or accident may be the pattern of abuse suffered by others at the hands of the defendant.

Id. at 754-55 (¶ 17) (quoting Lambert v. State, 724 So.2d 392, 895 (¶ 14) (Miss.1998) (Mills, J., dissenting)). The Derouen court concluded:

[Ejvidenee of a sexual offense, other than the one charged, which involves a victim other than the victim of the charged offense for which the accused is on trial .... [may be] properly admitted under Rule 404(b), [if] filtered through Rule 403, and accompanied by an appropriately-drafted limiting or cautionary instruction to the jury[.]

Id. at 756 (¶ 20) .

¶ 10. Although the incident concerning Anna was remote in years, we find that this fact does not render her testimony inadmissible. The supreme court’s recent holding in Gore v. State, 37 So.3d 1178 (Miss.2010) addressed this identical issue. John T. Gore was indicted and later convicted of “ ‘gratifying his lust or indulging his depraved licentious sexual desires’ ... by ‘intentionally handling, touching, or rubbing with this hands or any part of his body of any member thereof,’ his twenty-one-month-old granddaughter[.]” Id. at 1180 (¶ 1). The circuit court admitted testimony by Gore’s adult children that during their juvenile years, Gore had required them to walk around their home naked. Id. at 1183-84 (¶ 14). His adult daughter also testified that when she was twelve, he had her sit naked on his lap and watch pornographic material on the computer, and Gore had sexually molested her on one occasion. Id. at 1184 (¶ 15). In Gore, the supreme court reiterated its holding in Derouen and found the evidence to be admissible. It concluded that “Gore’s pri- or sexual abuse of his daughter tends to demonstrate ‘pedophilic sexual activities with young and developing female juveniles. The defendant’s means of accomplishing these activities on past occasions bear substantial resemblance to each other and with the present offense.’ ” Id. at 1187 (¶ 20). Other courts have also held that mere passage of time between incidents of sexual assault does not require exclusion of the evidence. See United States v. Gabe, 237 F.3d 954, 960 (8th Cir.2001) (stating that testimony regarding a sexual assault that occurred twenty years earlier was admissible as it “tend[ed] to prove [defendant’s] propensity to molest young children in his family when presented with an opportunity to do so undetected”); State v. Driggers, 554 So.2d 720, 727 (La.Ct.App.1989) (finding no error in admitting evidence of other crimes that occurred seven to twenty-six years prior as victims’ ages were similar, and “the continuity and consistency with which the other crimes occurred indicate a pattern of behavior ....; [thus,] the mere passage of time, without more, does not require their exclusion”). Similarly, while the incident with Anna occurred twenty years ago, it shows similar behavior on the part of the defendant and that the victims were of a similar age. The record also reflects that Young was questioned at trial regarding his mental-health treatment in 1989, with the State noting that there was a diagnosis of “sexual disorder, paraphilia, pedophilia[.]”

¶ 11. We find that the evidence of Young’s prior bad acts properly fell under the parameters set forth by the supreme court in Derouen and, therefore, was admissible. The circuit judge, noting that Derouen applied 404(b) to this specific fact situation, performed an on-the-record analysis and found that while the “particular evidence [was] prejudicial” under Mississippi Rule of Evidence 403, it “should be admitted under Rule 404(b).” Furthermore, the circuit court submitted to the jury appropriate limiting instructions. Jury Instruction S-2 stated:

The testimony of the [Sjtate’s witness, [Anna Smith], which is not part of charged conduct in this case, is to be used for the purpose of establishing motive, intent, plan, knowledge, identify, or absence of mistake or accident on the part of the defendant JOHNNIE R. YOUNG and should not be considered as proof of the defendant’s character or to show that he acted in conformity therewith.

An identical jury instruction was also given regarding the testimony of Young Sr. Young also admitted at trial that the incident with Anna occurred, and he testified to two other incidents with Anna that had occurred prior to that one.

¶ 12. Based upon Derouen, we find no abuse of discretion in the circuit court’s admission of this evidence, and this issue is without merit.

III. Whether the circuit court erred in admitting the expert testimony of Floyd, the forensic examiner.

¶ 18. Young contends that the circuit court erred in allowing Floyd to testify as an expert in forensic interviews, arguing that her methodology employed in the interviews “does not pass scrutiny under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).” Floyd had been employed as a forensic-interview specialist for the Family Resource Center of Northeast Mississippi in Tupelo since 2005. Prior to that, she was employed in the same capacity at the Children’s Advocacy Center in Mantachie, Mississippi, for a little over a year.

¶ 14. The “admission of expert testimony is governed by Rule 702 of the Mississippi Rules of Evidence and case law[.]” Carter v. State, 996 So.2d 112, 116 (¶ 13) (Miss.Ct.App.2008). The admission of such testimony is subject to the circuit court’s discretion and “will stand ‘unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.’ ” Id. (citation omitted). In Carter, this Court considered the expert testimony of two child-abuse forensic interviewers and deemed the testimony admissible, stating:

Clearly, the accuracy of forensic interviewing is largely untestable, and that Daubert factor therefore does not apply when determining the admissibility of such an expert’s testimony. We note that there is no evidence to suggest that the testimonies in question from [Keith] Stovall and Dr. [Catherine] Dixon failed to meet any of the other factors. Further, the procedure followed by Stovall is peer-reviewed, has general acceptance in the relevant community, and has standards that control the technique’s operation. In fact, [Bryant] Carter’s own witness, Dr. [Gary] Mooers, indicated that he had no problems with the procedure followed by the CAC.

Id. at 117 (¶ 16) (emphasis added). Also, in Lattimer v. State, 952 So.2d 206, 221(1138) (Miss.Ct.App.2006), this Court noted: “While an expert may not opine that an alleged child sex abuse victim has been truthful, the scope of permissible expert testimony under Rule 702 includes an expert’s opinion that the alleged victim’s characteristics are consistent with those of children who have been sexually abused.” (Quoting Elkins v. State, 918 So.2d 828, 832 (¶ 9) (Miss.Ct.App.2005)).

¶ 15. Although the circuit judge expressed his personal concern over forensic interviewing, he acknowledged that this Court has recognized it as an acceptable methodology, and he allowed Floyd to testify as an expert in that field. The circuit judge stated:

She’s testified for me before. That doesn’t mean she automatically has carte blanche to testify again, but this area has value. It’s dangerous, but it has value. It wouldn’t hurt my feelings if the Supreme Court said it didn’t have value, but they think it does, and I do too.

¶ 16. Young has offered no evidence to undermine our Carter analysis; therefore, we find no error in the circuit court’s admission of Floyd as an expert witness in the field of forensic interviewing.

IY. Whether the circuit court erred in admitting the expert testimony of Thomas.

¶ 17. Young claims that the circuit court erred in admitting Thomas as an expert witness to testify regarding her examination of Cindy. Young argues that Thomas “testified repeatedly regarding causation and beyond her disclosed opinions,” which was outside the scope of her expert designation.

¶ 18. To support his argument, Young cites Vaughn v. Mississippi Baptist Medical Center, 20 So.3d 645, 652 (¶ 20) (Miss.2009), which states that testimony from a nursing expert regarding diagnostic impressions is “impermissible” as they “are not qualified to make medical diagnoses or attest to the causes of illnesses.” The record reflects that Thomas testified as to the physical evidence that she found (i.e., the thinning of the hymen, the level of estrogenization, and scars in the anal area). Her testimony was that the examination results were “consistent with blunt penetrating trauma of the vaginal area and the anal area.” Thomas admitted that she was not a doctor, nor was she capable of rendering an opinion as to medical causation.

¶ 19. We find that admission of Thomas’s testimony was not in error. This Court has allowed and accepted a qualified and experienced nursing professional’s testimony “as to whether a victim’s injuries are consistent with a sexual assault.” Murray v. State, 20 So.3d 739, 742 (¶ 7) (Miss.Ct.App.2009). As in the present case, a registered nurse conducted a sexual-assault examination of the minor child in Murray after allegations of sexual assault. We found no error in the admittance of the nurse’s expert testimony at trial, concluding that “[sjince [the nurse] had personally conducted the examination of [the child], her testimony assisted the jury and was both relevant and reliable.” Id. Similarly, Thomas was qualified to conduct sexual-assault examinations, and her testimony regarding her personal examination of Cindy was “relevant and reliable” and of assistance to the jury. This assignment of error is without merit.

Y. Whether the circuit court’s refusal to qualify Young’s expert witness in the field of forensic interviewing was arbitrary and prejudicial to his defense.

¶ 20. The circuit court ruled that Young’s expert witness, Dr. Gary Mooers, was not qualified to provide expert testimony as a forensic interviewer. Young contends that Dr. Mooers has a more extensive education and more years of experience than Floyd and should have been allowed to testify as to how the forensic interview was conducted. Young concludes that this exclusion affected his constitutional rights and was reversible error.

¶ 21. In excluding this particular testimony, the circuit court stated:

[W]e all know that there’s a hands-on component to the jobs that we all do that is important .... and certainly, Dr. Mooers, I’m sure, knows a lot more things about a lot of things that Ms. Floyd does, but there’s no question in the Court’s mind he’s not anywhere near where she is in terms of training or experience in this field, forensic interviewing of children alleging sexual abuse.
Since I don’t like it in the first place and I think it’s ripe with problems to invite somebody else less qualified to critique somebody’s job in an area that’s filled with problems anyway and very difficult for the gate keeper to keep a lid on how that goes is only going to create more confusion for the jury and, clearly would be of a much more prejudicial than the prospects of it being probative or helpful to the fact finder. I’m happy for Dr. Mooers to testify about the field of social work, and you know, things that relate to that, but this business of second guessing an interview by having looked at a DVD of an interview and not having hands-on with the alleged victim or any of that is much more harmful than it had helpful in my opinion.

(Emphasis added). Testimony showed that Dr. Mooers, while highly trained and professionally educated in social work, was only nominally familiar with the methodology utilized by Floyd. Although Floyd was a student of Dr. Mooers while obtaining her Bachelor’s degree, Dr. Mooers admitted that he did not teach classes in forensic interviewing to her as those types of classes were generally “too specialized for an undergraduate course.” Furthermore, Dr. Mooers testified that “the interviewer was certainly competent and that he “didn’t have a criticism of how she did things.” Therefore, the circuit judge concluded:

[Ms. Floyd] works in a highly specialized area and has a lot of experience in that highly specialized area. Dr. Mooers does not. He’s not qualified to second guess those things that are highly specialized. Even though he has, I’m sure, taught many of those things, he’s not taught nor has he learned, apparently, the protocol that’s at issue here, that the Court has allowed.

We find no error in the circuit judge’s reasoning. Accordingly, this issue is without merit.

VI. Whether the prosecution’s closing statements were inflammatory and prejudicial and required a limiting instruction to the jury or a mistrial.

¶ 22. Young claims that during closing arguments, the State went beyond the record and “sought to appeal to the sympathy of the jury and not the facts and the reasonable inferences to be drawn therefrom.” Specifically, Young is referencing the comment made by the State to the jury: “Now [Cindy] has told /all, each and every one of y’all. Are you going to help her?” Young says this statement asked the jury to be advocates for the child, not fact-finders, and the State’s remarks were a modified version of a “golden rule” argument. “A golden rule argument asks the jurors to put themselves in the place of one of the parties.” Jones v. State, 962 So.2d 1268, 1275 (¶47) (Miss.2007) (citation omitted).

¶ 23. The State claims that Young waived this issue by failing to make any specific objections to the argument. However, the record reflects that defense counsel made an immediate objection to the State’s comment and requested a curative instruction. The judge overruled the objection and denied the request, stating: “I see it is pretty close, but I don’t see that a curative instruction is going to cure anything if it was not proper, so I’m going to deny the request.” Young also requested a mistrial based upon the comments, which was also denied. Therefore, the issue was not waived.

¶ 24. The Mississippi Supreme Court has held that deference is given to a circuit court’s ruling regarding the propriety of a closing argument “because the [circuit] court is in the best position to determine if an alleged improper comment had a prejudicial effect; therefore, absent an abuse of that discretion, the [circuit] court’s ruling will stand.” Jones, 962 So.2d at 1275 (¶ 45) (citing Stevens v. State, 806 So.2d 1031, 1057 (¶ 114) (Miss.2001)). Counsel is “usually given wide latitude during closing arguments.” Young v. State, 791 So.2d 875, 880 (¶ 15) (Miss.Ct.App.2001) (citing McGilberry v. State, 741 So.2d 894, 910 (¶44) (Miss.1999)). As such, “when a jury is properly instructed that statements made by counsel are not evidence, reversal is not required.” Walker v. State, 913 So.2d 198, 240 (¶ 157) (Miss.2005) (citation omitted).

¶ 25. We do not find the State’s remark to be improper. The comment did not ask the jurors to put themselves in Cindy’s place and was not a “golden rule” argument. Nor do we find that the comment resulted in undue prejudice, particularly considering the circuit court submitted the following instruction to the jury: “Arguments, statements, and remarks of counsel are intended to help you understand the evidence and apply the law, but are not evidence. Any arguments, statements, and remarks having no basis in the evidence should be disregarded by you.” As this Court has stated, it is “well-settled law [that] jurors are presumed to follow the instructions given by the court.” Harris v. State, 37 So.3d 1237, 1247 (¶ 37) (Miss.Ct.App.2010) (citing Payne v. State, 462 So.2d 902, 904 (Miss.1984)).

¶ 26. Accordingly, we find that the State’s comment did not constitute reversible error, and this issue is without merit.

VII. Whether the circuit court erred in denying Young’s post-trial motions.

¶ 27. In his appeal to this Court, Young challenges the sufficiency of the evidence as it relates to his motion for a JNOV and, in the alternative, a motion for a new trial. “A motion for a JNOV challenges the legal sufficiency of the evidence.” Fulgham v. State, 12 So.3d 558, 562 (¶ 20) (Miss.Ct.App.2009) (citing Hearn v. State, 3 So.3d 722, 740 (¶53) (Miss.2008)). “[A] motion for a new trial challenges the weight of the evidence.” Id. (citing Hearn, 3 So.3d at 741 (¶ 56)). On appeal, Young claims that there was insufficient proof as to when the alleged incidents of sexual battery occurred and as to whether the incidents occurred at all.

¶ 28. Unless the denial of a motion for a JNOV “is such that fair-minded jurors could only find the defendant not guilty” with respect to one or more elements of the crime charged, it will not be disturbed on appeal. Id. (citing Hearn, 3 So.3d at 740 (¶ 54)). During the trial, Young moved for a directed verdict at the end of the State’s case-in-chief, alleging insufficient proof. The State responded:

She also said that this matter started as a very young age, and we’ve got testimony that three-years-old is the testimony and it happened up until the time that this was reported on the last chance when she was eight-and-a-half years old, your Honor. Those dates encompass that and she said it happened all the time, your Honor, and I think there’s sufficient factual basis for this jury could find that she was penetrated in her anal, vaginal, and oral openings by this man with his penis; and that he is more than 18-years-old and she was under 14 years of age and he was more than 24 months older than her, and it happened in this county, your Honor.

Viewing the matter in the light most favorable to the non-movant, the circuit court denied Young’s motion for a directed verdict.

¶ 29. There was ample testimony that Cindy was sexually assaulted by Young and that it happened during the period alleged in the indictment. Cindy reported the sexual abuse in 2007, and she later testified as follows:

Q. And how old were you when this happened?
A. About — I don’t know how old I was when I was little, but I know it went on until I was eight-and-a-half.
Q. And you’re sure it happened until you were eight-and-a-half?
A. Yes.
Q. How many other times are you saying that this happened, Young Lady?
A. A lot at our house.
Q. And how young were you when you say this started?
A. I do not know that.
Q. You don’t remember?
A. Not when I was little. I was about five or six when it started happening.

If Cindy was approximately five years old when the sexual assault began, then it started in 2003 or 2004 (around the time when Cindy originally mentioned it to her grandfather) and continued until she reported it in 2007.

¶ 30. Viewing the evidence in light most favorable to the State, we find that a “fair-minded juror” could conclude that there was sufficient evidence that Young sexually assaulted Cindy as alleged in the indictment. Also, in considering the circuit court’s denial of the motion for a new trial, we do not find that the verdict is against the overwhelming weight of the evidence. The issue is without merit.

VIII. Whether the cumulative effect of errors require a reversal of Young’s conviction.

¶ 31. “This Court may reverse a conviction and sentence based upon the cumulative effect of errors that independently would not require reversal. However, where there was no reversible error in any part, there is no reversible error to the whole.” McLaurin v. State, 31 So.3d 1263, 1270 (¶ 35) (Miss.Ct.App.2009) (citing Bright v. State, 894 So.2d 590, 596 (¶ 31) (Miss.Ct.App.2004)). Finding that no individual errors exist on appeal, we find no cumulative error that would result in a reversal of Young’s conviction. Accordingly, we affirm the judgment of the circuit court.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF UNION COUNTY OF CONVICTION OF THREE COUNTS OF SEXUAL BATTERY AND SENTENCE OF THREE CONCURRENT LIFE SENTENCES IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO UNION COUNTY.

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

      . To protect the identity of victims of sexual abuse, we substitute fictitious names for the victim and relatives of the victim through which the victim could be identified.

      . Young did not renew his argument regarding the violation of the Confrontation Clause on appeal. Further, Cindy testified at trial and was subject to cross-examination; consequently, the introduction of her out-of-court statements did not violate the Confrontation Clause. See Bridgeman v. State, 58 So.3d 1208, 1213 (¶ 17) (Miss.Ct.App.2010) ("introduction of out-of-court statements, even if unreliable, does not violate the Confrontation Clause where declarant testifies at trial subject to full and effective cross-examination”) (citing United States v. Owens, 484 U.S. 554, 560, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988)).

      . Young Sr. admitted that he did not report the 2004 incident to authorities, but he asked Cindy's mother not to let her be alone with her father.

      . The Derouen court also stated that it was "time for this Court to consider amending the Mississippi Rules of Evidence by way of the adoption of rules modeled after Federal Rules of Evidence 413 and 414” and referred the issue to the Rules Committee "for study and recommendation to the en banc court.” Der-ouen, 994 So.2d at 756 (¶21). Federal Rule of Evidence 413 was enacted in 1994 to allow the admission of evidence of other crimes of sexual assault or child molestation to show propensity. "In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses is admissible, and may be considered bearing on any matter to which it is relevant.” F.R.E. 413(a).

      . In 2001, Louisiana enacted Louisiana Code of Evidence article 412.2 in response to that state's jurisprudence concerning admission of evidence of other crimes in sexual-assault and child-molestation cases. The article states, in subsection (A), that: When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.


author: LEE, C.J.,

text:
    Keith Kinard COOK a/k/a Keith Cook a/k/a Keith K. Cook, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00647-COA.
    Court of Appeals of Mississippi.
    May 8, 2012.
    Rehearing denied Sept. 25, 2012.
    Certiorari Denied Jan. 24, 2013.

      Keith Kinard Cook, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, C.J., ISHEE and FAIR, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Keith Kinard Cook pleaded guilty in the DeSoto County Circuit Court to possession of more than two grams but less than ten grams of cocaine. Cook was sentenced as a habitual offender and a repeat drug offender and ordered to serve eight years in the custody of the Mississippi Department of Corrections followed by eight years of post-release supervision. Cook filed a motion for post-conviction relief (PCR), which the trial court denied.

¶ 2. Cook now appeals, asserting the following issues: (1) his sentence was disproportionate to the crime; (2) he was incorrectly advised concerning his right to appeal; and (3) his guilty plea was involuntary. We affirm.

STANDARD OF REVIEW

¶ 3. A trial court’s denial of a PCR motion will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

I. PROPORTIONALITY OF SENTENCE

¶ 4. Cook argues his crime of cocaine possession is non-violent and should carry a lesser sentence. He also argues his sentence of eight years is cruel and unusual punishment under the Eighth Amendment.

¶ 5. Cook was charged under Mississippi Code Annotated section 41 — 29—139(c)(1)(C) (Supp.2011), which carries a possible sentence of “not less than four (4) years nor more than sixteen (16) years.... ” Cook was sentenced as a habitual offender and a repeat drug offender. See Miss.Code Ann. § 99-19-81 (Rev.2007); Miss.Code Ann. § 41-29-147 (Rev.2009).

¶ 6. Section 99-19-81 states:

Every person convicted in this state of a felony .who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Section 41-29-147 states:

Except as otherwise provided in Section 41-29-142, any person convicted of a second or subsequent offense under this article may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.
For purposes of this section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this article or under any statute of the United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant or hallucinogenic drugs.

¶ 7. Because Cook had two prior felonies, the trial court was required to sentence him to the maximum term of imprisonment allowed by statute, which was sixteen years. Also, because Cook had prior drug convictions, the trial court had the option of doubling the sentence. Thus, Cook faced a possible thirty-two-year sentence without parole or probation. He was sentenced to eight years in prison followed by eight years of post-release supervision.

¶ 8. Cook’s term of imprisonment of eight years was well below what the trial court was authorized to impose. As a general rule, we will not disturb sentences which are permissible by statute. Reynolds v. State, 585 So.2d 753, 756 (Miss.1991). Further, there is no requirement that a trial court conduct a sua sponte proportionality analysis. Home v. State, 825 So.2d 627, 641 (¶ 58) (Miss.2002). Before a proportionality analysis is reached, it must be shown that the sentence is grossly disproportionate to the crime charged. Hoops v. State, 681 So.2d 521, 538 (Miss.1996). Unless this preliminary requirement is shown, Cook is not entitled to the extended comparison analysis under Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Since Cook’s sentence was within the statutory guidelines, we find the trial court did not err by not performing a proportionality analysis. This issue is without merit.

II. RIGHT TO APPEAL

¶ 9. The trial court advised Cook there was no right to a direct appeal from a guilty plea. Cook asserts this was erroneous advice.

¶ 10. Cook cites to Trotter v. State, 554 So.2d 313, 315 (Miss.1989), in support of his argument that he may file a direct appeal from a guilty plea. Cook is correct that the holding in Trotter allowed a direct appeal in certain matters involving an appeal from a guilty plea. However, Trotter applies the 1972 version of Mississippi Code Annotated section 99-35-101, which states: “Any person convicted of an offense in a circuit court may appeal to the supreme court, provided, however, an appeal from the circuit court to the supreme court shall not be allowed in any ease where the defendant enters a plea of guilty.” Under the wording of this statute, the Mississippi Supreme Court held that a defendant who pleaded guilty could file a direct appeal to challenge the sentence imposed, but not the guilty plea itself. Trotter, 554 So.2d at 315. This statute has since been amended and is not applicable to Cook’s case.

¶ 11. The current version of section 99-35-101 states: “[WJhere the defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed.” Miss.Code Ann. § 99-35-101 (Supp.2011). This statute went into effect July 1, 2008. Thus, direct appeals from guilty pleas after this date are not allowed. Seal v. State, 38 So.3d 635, 638 (¶ 8) (Miss. Ct.App.2010). Cook’s guilty plea occurred in January 2010. Based on the statute in effect in January 2010, Cook had no right to a direct appeal from his guilty plea. The trial court did not give Cook erroneous advice. This issue is without merit.

III. VOLUNTARINESS OF PLEA

¶ 12. Cook argues the trial court erred in accepting his guilty plea without first conducting a competency hearing.

¶ 13. Uniform Rule of Circuit and County Court 9.06 states in part: “If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination....” Cook does not give any reason the trial court should have had reasonable ground to believe he was incompetent to stand trial. The trial court questioned Cook and determined he was not under the influence of drugs, alcohol, or any medication that would have affected his ability to think clearly. Cook told the trial court he did not have a history of mental illness and understood the implications of his guilty plea. We find no merit to this issue.

¶ 14. Finally, Cook makes another argument regarding relief in federal court. He states in his brief: “[T]he validity of the indictment is at an [sic] issue here.... Petitioner here is prosecuting his state application with such diligence to ensure he does not lose the right to seek relief in the Federal Court....” This argument is unclear, but to the extent Cook is arguing that his indictment is invalid, Cook cites no law or facts for this proposition. Thus, we decline to address this issue.

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

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


author: BARNES, J„ CARLTON, J.,

text:
    Norma SPRINGFIELD, Appellant v. MEMBERS 1ST COMMUNITY FEDERAL CREDIT UNION, Appellee.
    No. 2010-CA-00359-COA.
    Court of Appeals of Mississippi.
    May 29, 2012.
    Rehearing Denied Oct. 30, 2012.
    Certiorari Denied Jan. 24, 2013.

      Luanne Stark Thompson, Aberdeen, T. Kilpatrick, attorneys for appellant.
    Timothy Michael Peeples, Oxford, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   BARNES, J„

for the Court:

¶ 1. Norma Springfield filed a complaint in the Monroe County Circuit Court for malicious prosecution against her former employer, Members 1st Community Federal Credit Union’s (Members 1st) and others, after embezzlement charges were brought against her and later dismissed. The trial court granted the defendants’ second motion to dismiss, finding that Norma failed to establish “want of probable cause.” Norma now appeals. Finding error with the trial court’s dismissal, we reverse and remand for proceedings consistent with this opinion.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. In May 2009, Norma sued Members 1st, Pollan & Associates, Chris Pollan, and Mitchell Springfield for malicious prosecution. The complaint alleged that in approximately November 2005, Chris Pollan (Pollan), an agent of Members 1st, “armed with certain false information attempted to secure an indictment against [Norma].” When these efforts failed, in January 2006 Pollan:

reappeared before the Grand Jury of Lowndes County ... and repeated his efforts to have the former employee [Norma] indicted but this time ... Pol-lan included an affidavit signed by Defendant Mitchell Springfield, the former husband of [Norma], alleging criminal conduct by [Norma] to have occurred during the marriage of the parties with regard to marital property and marital liabilities.

The complaint stated Norma was later “arrested, booked, and processed” for embezzlement, but in May 2008, the trial court entered an order of nolle prosequi on the charge.

¶ 3. In November 2009, Pollan & Associates and Pollan filed a motion to dismiss under Mississippi Rules of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted, claiming that Norma could not, as a matter of law, satisfy the element of “want of probable cause” under her malicious prosecution claim because Norma had been indicted for embezzlement, and indictments are based on probable cause. Members 1st joined this motion to dismiss. The trial court granted the motion to dismiss as to Members 1st and Pollan & Associates. Norma appealed.

¶ 4. At the end of the hearing on the motions to dismiss, the trial court noted that there was one remaining defendant in the action, Mitchell. A docket entry in October 2009 reflected that Mitchell was served with process; however, the record did not indicate any final adjudication as to him. Nor was there any Mississippi Rule of Civil Procedure 54(b) certification on either of the January 2010 orders granting dismissal to the other defendants. Therefore, we issued an order asking the parties to brief whether this Court has jurisdiction, as the circuit court action appeared to be still pending against Mitchell Springfield. Norma responded by providing this Court with an order signed September 5, 2011, by the trial judge granting a motion for voluntary dismissal of Mitchell Springfield, thereby closing the case. Norma argues the jurisdictional issue is now moot. In its supplemental brief, Members 1st also argues for this Court to maintain jurisdiction. We find appellate jurisdiction is now proper.

STANDARD OF REVIEW

¶ 5. An appellate court “applies a de novo standard of review when examining a trial court’s grant or denial of a motion to dismiss.” Saul ex rel. Heirs of Cook v. S. Cent. Reg'l Med. Ctr., Inc., 25 So.3d 1037, 1039 (¶ 6) (Miss.2010) (citing Burleson v. Lathem, 968 So.2d 930, 932 (¶ 7) (Miss.2007)). “When considering a motion to dismiss, the allegations in the complaint must be taken as true[,] and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Id. A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Rose v. Tullos, 994 So.2d 734, 737 (¶ 11) (Miss.2008) (citing Cook v. Brown, 909 So.2d 1075, 1077-78 (¶ 8) (Miss.2005)).

ANALYSIS OF THE ISSUE

¶ 6. Norma raises one issue: whether the trial court improperly granted Pollan & Associates and Members lst’s second motion to dismiss. Norma’s argument is two-fold: (1) the trial court improperly converted the motion to dismiss into a motion for summary judgment, and (2) the trial court improperly ruled that she could not meet her burden of proof on the “want of probable cause” element of her malicious prosecution claim. We find Norma’s second contention has merit and is disposi-tive; therefore, we decline to discuss her first contention.

1. Malicious Prosecution “Want of Probable Cause” Element

¶ 7. In order to establish a claim of malicious prosecution, the plaintiff must prove, by a preponderance of the evidence:

(1) The institution [or continuation] of a criminal proceeding; (2) by, or at the insistence of, the defendant; (3) the termination of such proceedings in plaintiffs favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceeding; (6) the suffering of injury or damage as a result of the prosecution.

Condere Corp. v. Moon, 880 So.2d 1038, 1042 (¶ 13) (Miss.2004).

¶ 8. The legal issue raised on appeal is whether the return of an indictment by the grand jury means Norma cannot, as a matter of law, prove the element of “want of probable cause.” Norma contends that the trial court equated the “want of probable cause” element in a malicious prosecution claim with the probable cause needed to return an indictment in a criminal case, thereby improperly dismissing her claim. We agree and find the trial court’s ruling was error.

¶9. Regarding the element of “want of probable cause,” a court must look “to the facts reasonably available to each [defendant at the time” the malicious prosecution was initiated. Strong v. Nicholson, 580 So.2d 1288, 1294 (Miss.1991) (citing Benjamin v. Hooper Elec. Supply Co., 568 So.2d 1182, 1190 (Miss.1990); Royal Oil Co. v. Wells, 500 So.2d 439, 443 (Miss.1986); Owens v. Kroger Co., 480 So.2d 848, 846 (Miss.1983)). “Probable cause requires the concurrence of (1) a subjective element — an honest belief in the guilt of the person accused, and (2) an objective element — reasonable grounds for such belief[s].” Id. (citing Benjamin, 568 So.2d at 1190; Royal Oil, 500 So.2d at 443; Harvill v. Tabor, 240 Miss. 750, 755, 128 So.2d 863, 865 (1961)). “One is as essential as the other.” Harvill, 240 Miss, at 755, 128 So.2d at 865. “The question in the end is not whether the defendant thought he had probable cause, but whether the fact-finder thinks he did.” Strong, 580 So.2d at 1294.

¶ 10. Members 1st claims that under Mississippi law, the existence of an indictment establishes probable cause as a matter of law, citing Rogers v. State, 881 So.2d 936 (Miss.Ct.App.2004), a criminal case that had nothing to do with the tort of malicious prosecution. In Rogers, probable cause was discussed in relation to the criminal defendant’s argument that he was improperly denied a preliminary hearing. Id. at 940 (¶ 16). We cannot agree with Members 1st or the trial court that “probable cause” found in the grant of preliminary hearings or the return of indictments conclusively establishes probable cause preventing a subsequent action for malicious prosecution.

¶ 11. While there are no Mississippi state cases exactly on point regarding the impact of an indictment on the “want of probable cause” element of malicious prosecution, legal encyclopedias on the issue explain that the impact has been considered in one of two ways. The American Law Reports encyclopedia states some courts have recognized that an indictment by a grand jury against the plaintiff is “evidence tending to show that the defendant had probable cause for his alleged part in the prosecution” but does not constitute prima facie evidence. 28 A.L.R.3d 748, 753 (1969) (emphasis added). However, the majority of courts take the view that an indictment is prima facie evidence “that the defendant had probable cause for his alleged part in the prosecution, but that such evidence is not conclusive on the issue.” Id. Prima facie evidence may be contradicted by other evidence. Id. at n. 5. Thus, when a complaint for malicious prosecution shows on its face that a grand jury indicted the plaintiff, the plaintiff must “plead facts showing fraud or other improprieties in his prosecution to overcome this prima facie probable cause.... ” Id. at 754.

¶ 12. Similarly, Corpus Juris Secundum acknowledges that “[wjhile there is some authority to the contrary,” generally, the return of an indictment by a grand jury is “prima facie, but not conclusive, evidence of probable cause” in malicious prosecution cases. 54 C.J.S. Malicious Prosecution § 48 (2010) (emphasis added). It further explains:

Once an indictment has been returned by a grand jury, the plaintiff in a malicious prosecution action has the burden of producing evidence to establish lack of probable cause. The plaintiff must produce evidence that the return of the indictment resulted from perjured testimony or that the grand jury proceedings were otherwise significantly irregular. The plaintiff may show that the indictment was obtained by failing to make a full and complete statement of facts to the grand jury or district attorney, by the withholding of information by the prosecutor which might have affected the result, or by showing that the indictment was produced by the misconduct of the party seeking indictment.

Id.

¶ 13. Moreover, the American Jurisprudence encyclopedia states that an indictment is prima facie evidence of probable cause, but it is not conclusive evidence, and may be overcome by proof that there was no probable cause for the prosecution. 52 Am.Jur.2d § 64 (2000). Some courts have also held that the return of an indictment raises a rebuttable presumption that probable cause exists, and this presumption may only be rebutted "with substantial evidence that the grand jury proceedings were in some way irregular. Id.

¶ 14. The Second Restatement on the Law of Torts takes the position that “[t]he indictment of the accused by a grand jury is evidence that the person who initiated the proceedings had probable cause for initiating them.” Restatement (Second) of Torts § 664(2) (1977) (emphasis added). Importantly, however, the comment notes, “[ajlthough the indictment is evidence of probable cause, it may be explained by evidence of the same general nature” as evidence relating to the discharge of the accused as conclusive of the lack of probable cause. Id. at § 664 cmt. b. “If so explained, the evidence of the indictment is refuted.” Id.

¶ 15. The closest case on point in Mississippi is Royal Oil. There, the supreme court affirmed a verdict for the plaintiff on her malicious prosecution claim arising out of embezzlement charges, where the grand jury ultimately failed to return an indictment. Royal Oil, 500 So.2d at 440. The appellants’ argument in Royal Oil is similar to the trial court’s rationale here for dismissal of Norma’s malicious prosecution claim: because the justice court judge “found probable cause to bind the matter over to the Grand Jury, probable cause [was] necessarily present and thus a claim of malicious prosecution must fail.” Id. at 443. The supreme court rejected this argument:

When a conviction is obtained in a lower court prosecution, whether reversed or not, a prima facie case is made that probable cause is present, in the absence of fraud, perjury or other corrupt practices. That prima facie case, of course, is subject to rebuttal by plaintiff’s evidence. In the factual context we consider here, Appellants appeared before the trial court armed with no such prima facie case, as a result of which the question of probable cause or the want thereof naturally became a jury question, with respect to which plaintiff bore the burden of proof by a preponderance of the evidence.

Id. (citations omitted). Thus, Royal Oil held that when a conviction is obtained, a prima facie case is established that probable cause is present unless there was some corrupt practice involved in the conviction; however, the prima facie case is subject to rebuttal by the plaintiff. Since the appellants could show no conviction, they made out no prima facie case, and the matter of probable cause was a question for the jury. M

¶ 16. Members 1st cites two federal district court cases in support of its argument that the existence of an indictment in a malicious prosecution claim establishes conclusive evidence of probable cause: Porter v. Farris, No. 1:06CV293-SA-JAD, 2008 WL 3842905 (N.D.Miss. August 13, 2008) and Sullivan v. Boyd Tunica, Inc., No. 2:06CV016-B-A, 2007 WL 541619 (N.D.Miss. February 16, 2007).

¶ 17. In Porter, the district court granted summary judgment in favor of the defendants regarding a malicious prosecution and Section 1983 claim against James Farris. Porter at *1, *5. The complaint alleged that the indictment for false pretenses and embezzlement, which was ultimately dismissed, was not based upon probable cause, thereby violating the plaintiffs Fourth Amendment rights and amounting to malicious prosecution. Id. at *1. Regarding the “want of probable cause” element of malicious prosecution, the district court stated:

Under Mississippi law, the existence of an indictment establishes probable cause as a matter of law. See Rogers v. State, 881 So.2d 936, 940 (Miss.Ct.App. 2004). Having established that [the defendant’s] indictment served to conclusively establish the existence of probable cause in the prior proceeding [Porter 1 ], Plaintiff has failed, as a matter of law, to establish the requisite elements for a malicious prosecution claim.

Id. at *5 (emphasis added). As stated earlier, Rogers did not deal with the probable cause element of malicious prosecution, but rather the grant of a preliminary hearing in a criminal case. Further, Porter does not explain how an indictment- can be conclusive proof on the issue of probable cause in the context of malicious prosecution when the Mississippi Supreme Court has determined that a conviction is not conclusive but only prima facie evidence. See Royal Oil 500 So.2d at 448.

¶ 18. In Sullivan, the district court found the malicious prosecution claim failed because “if facts supporting an arrest are placed before an independent intermediary such as a magistrate or grand jury, the intermediary’s decision breaks the chain of causation.” Sullivan, 2007 WL 541619, at *4 (quoting Taylor v. Gregg, 36 F.3d 458, 456 (5th Cir.1994) (overruled on other grounds)). The district court relied on the Fifth Circuit Court of Appeals’ false arrest analysis in Taylor for authority. The district court in Sullivan declined to distinguish between false arrest and malicious prosecution claims, however, and held that even though:

the Taylor court was addressing a claim for false arrest ... this court finds the case [is] equally applicable in a malicious prosecution context because the central issue addressed is the issue of probable cause. The absence of probable cause is an essential element of both causes of action. ‘Where probable cause exists for an arrest, a suit for false arrest and malicious prosecution will not lie.... ’ Keen v. Simpson County, 904 So.2d 1157, 1161 (¶ 21) (Miss.Ct.App.2004).

Id. at *4. We respectfully disagree.

¶ 19. First, the citation to Keen is entirely true as stated. If an arresting officer has probable cause, he cannot be liable for either false arrest or malicious prosecution. Keen, 904 So.2d at 1161 (¶21). However, Keen does not hold that an indictment conclusively establishes probable cause or breaks the chain of causation for proximate cause.

¶ 20. Second, the Fifth Circuit Court of Appeals has rejected the very analogy made by the district court in Sullivan. In Taylor, both false arrest and malicious prosecution claims were brought against the City of Lubbock, Texas, and the arresting officer under the Texas Tort Claims Act. Taylor, 36 F.3d at 454-55. The plaintiffs, Taylor and Dixon, were brought before a federal magistrate judge and later indicted by a grand jury for interfering with a flight crew, stemming from incident where they became rowdy during a return flight after a Dallas Cowboys game. Id. Taylor and Dixon later entered into a pre-trial diversion agreement (an alternative to prosecution), and subsequently filed suit against the defendants claiming a violation of their constitutional rights. Id. at 455. The district court granted summary judgment in favor of the defendants. Id. Taylor held that, regarding the malicious prosecution claim, entering a pretrial diversion agreement did not terminate the criminal action in favor of the defendants. Id. at 456. Regarding the claim for false arrest, as stated earlier, the Fifth Circuit held that the chain of causation was broken by the defendant’s appearance before an independent intermediary, the magistrate and grand jury. Id. In support of this holding, Taylor cited to Wheeler v. Cosden Oil & Chemical Co., 744 F.2d 1131 (5th Cir.1984), which expressly determined that the independent-intermediary doctrine applied to false arrest but not malicious prosecution claims. Taylor, 36 F.3d at 456; Wheeler, 744 F.2d at 1132.

¶ 21. Third, the extension of the independent-intermediary doctrine to malicious prosecution claims would undermine the holding in Royal Oil, because if an indictment could break the chain of causation and nullify the claim, the Mississippi Supreme Court would have had no reason to discuss that a conviction only made out a prima facie case for the presence of probable cause in such a claim. See Royal Oil, 500 So.2d at 443.

¶ 22. In her brief, Norma also argues that the trial court judge improperly converted his ruling on the second motion to dismiss under Rule 12(b)(6) into one for summary judgment. To the extent the trial court may have relied on any facts other than the indictment, we agree. We find the dissent makes a similar error in its claim that “no facts were disputed” in the element of “want of probable cause.” In support of its analysis, the dissent cites facts which were discussed by Norma’s counsel at the hearing on the second motion to dismiss in relation to the indictment’s charges, thereby improperly analyzing the motion as one for summary judgment under Mississippi Rule of Civil Procedure 56, not dismissal under Rule 12(b)(6), which was the basis of the motion. Norma’s counsel acknowledged at the hearing that discovery still needed to be conducted, after which the defendants could file a motion for summary judgment if appropriate. Counsel for Members 1st also acknowledged that the facts Norma’s counsel discussed (the same facts the dissent mentions), were not yet in the record. A Rule 12(b)(6) motion is based on failure of the pleadings to state a claim upon which relief can be granted. M.R.C.P. 12(b)(6). While Rule 12(b) provides that a motion to dismiss can be treated as one for summary judgment if “matters outside of the pleadings are presented” and not excluded by the court, and “all parties are given reasonable opportunity to present all material made pertinent” under Rule 56, that is not the case here. There were no affidavits filed in the case, and no depositions had been taken. Norma was not given proper notice by the trial court that the motion was being converted into a Rule 56 motion. Therefore, the motion could not be converted into one for summary judgment at the hearing, and the case dismissed, as the dissent suggests, because “no facts were disputed.”

¶ 28. Taking all of the allegations of the complaint as true, we find that Norma’s complaint is legally sufficient. Under Royal Oil, Members 1st will not ever be “armed with [a] prima facie case” of probable cause. See Royal Oil, 500 So.2d at 443. The trial court’s dismissal of the case was error.

2. Untimely brief

¶ 24. Members 1st argues that Norma’s brief was untimely served upon them and therefore her appeal must be dismissed. After the grant of two extensions of time, Norma’s appellate brief was due October 1, 2010. The record shows Norma’s brief was timely filed with this Court on October 1, 2010. However, Norma admits in her reply brief that she did not send her brief to Members 1st until the next business day of October 4, 2010.

¶ 25. Rule 25(b) of the Mississippi Rule of Appellate Procedure states that “[c]opies of all papers filed by any party and not required by these rules to be served by the clerk shall, at or before the time of filing, be served by a party or person acting for that party on all other parties to the appeal.” Appellate Rule 25(c) provides that “[s]ervice by mail is complete on mailing.” Appellate Rule 31(d) provides the consequences for failing to file a brief only, but this rule would also provide for the failure to serve a copy of the brief on another party, since both are required under Rule 25. Rule 31(d) provides that if the appellant fails to timely file his brief, “the appeal may be dismissed on motion of appellee or on the [appropriate appellate court]’s own motion as provided in Rule 2.” Mississippi Rule of Appellate Procedure 2(a)(2) provides for discretionary dismissal of an appeal. Either the appropriate appellate court or the opposing party may move for dismissal if a party fails to comply with the rules. Id. The clerk must then give notice to the defaulting party as to the nature of the deficiency, and that party has fourteen days to correct the deficiency; otherwise, the appeal will be dismissed by the clerk. Id,

¶ 26. Upon examining the case file, we find no motion to dismiss the appeal by Members 1st due to the untimely service of Norma’s brief. Instead, Norma corrected the deficiency by sending the brief to Members 1st on October 4, 2010, by UPS overnight service, as she stated in her reply brief. This Court could award “other sanctions” under Rule 2(b) for failure to provide timely service, but we decline to do so in this case where the deficiency was promptly remedied and Members 1st has alleged no prejudice as a result of the deficiency. Accordingly, this issue is without merit.

CONCLUSION

¶ 27. The complaint’s allegations sufficiently state a claim for malicious prosecution upon which relief can be granted; thus, the trial court erred in granting the defendants’ motion for dismissal under Rule 12(b)(6). We therefore reverse and remand for further proceedings consistent with this opinion.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, RUSSELL AND FAIR, JJ„ CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.

CARLTON, J.,

dissenting:

¶ 29. I respectfully dissent, and would affirm the trial court’s dismissal in this case. Our supreme court has established that “[w]hen the facts are undisputed, it is the function of the court to determine if probable cause existed” in malicious-prosecution actions. Nassar v. Concordia Rod & Gun Club, Inc., 682 So.2d 1035, 1044 (Miss.1996) (quoting Benjamin v. Hooper Elec. Supply Co., 568 So.2d 1182, 1190-91 (Miss.1990)); see also Owens v. Kroger Co., 430 So.2d 843, 846 (Miss.1983). I submit that the record in this case reflects that the facts are not in dispute; therefore, I respectfully dissent.

¶ 80. The record shows that in its order granting Members lst’s motion to dismiss, the trial court considered the elements of a malicious prosecution cause of action. The trial court cited Page v. Wiggins, 595 So.2d 1291, 1293 (Miss.1992) and Croft v. Grand Casino Tunica, Inc., 910 So.2d 66, 72 (¶ 14) (Miss.Ct.App.2005), noting that the fifth element of a malicious prosecution claim is the “want of probable cause.” The trial court recognized that this fifth element required the court to look at the intent of the defendants at the time of initiation of the prosecution. After so doing, the court then found that Norma failed to present any evidence to show a want of probable cause.

¶ 31. Additionally, the record reflects no factual dispute by the parties. After hearing the arguments of the parties, the trial court’s order reflected its finding that probable cause did exist, especially in light of Norma’s indictment. However, the record supports that the trial court did not predicate its ruling solely on the indictment, but looked to whether Norma proffered any evidence to show a want of probable cause. In so doing, the trial court acknowledged in its order that courts look at the honest belief in the guilt of the person accused and also whether reasonable grounds existed for such belief at initiation of the prosecution. See McClinton v. Delta Pride Catfish, Inc., 792 So.2d 968, 973, 973 (¶ 11) (Miss.2001) (explaining the appellate court must focus on objective of defendant who instituted the criminal proceeding); Coleman v. Smith, 914 So.2d 807, 811-12 (¶ 12) (Miss.Ct.App.2005) (malice required for prosecution is that “other than ‘bringing an offender to justice’”).

¶ 32. Norma’s counsel presented an argument on the motion to dismiss, addressing the embezzlement charges against Norma and explaining that the charges included irregularities in the management of the credit union where she was employed. Her counsel’s argument showed that Norma was accused of continuing to process overdrafts for a customer with continual overdrafts, without charging a fee for them. Norma was also charged with improperly processing her own overdrafts. Her counsel explained that Norma’s criminal charges also related to a “bad” loan. Norma’s counsel asserted reasons and potential defenses as to why these various acts occurred, yet asserted no denial of the acts and no evidence of improper motive on behalf of Members 1st. Consequently, I submit that Norma presented no evidence showing a lack of probable cause for the prosecution of the embezzlement charges.

¶ 33. Since no facts were disputed, the trial court properly determined Norma’s failure to satisfy the element of want of probable cause. Failure to prove any of the six elements of a malicious prosecution claim by a preponderance of the evidence is fatal to the claim. Perkins v. Wal-Mart Stores, Inc., 46 So.3d 839, 845 (¶ 10) (Miss.Ct.App.2010). Therefore, I would affirm the trial court’s dismissal of Norma’s complaint for malicious prosecution.

      . Pollan & Associates and Pollan had previously filed a motion based on untimely service of process and expiration of the statute of limitations for malicious prosecution. The trial court granted this first motion to dismiss as to Pollan & Associates as well. Norma conceded Pollan was improperly served and thus voluntarily dismissed her claim against him, leaving one remaining defendant to the action: Mitchell Springfield.

      . We note that this section of the American Law Reports does not cite any Mississippi cases for either the minority or majority position.

      . The comment further provides:
      When [the accuser] produces evidence to sustain this burden [that he had probable cause], the discharge by the magistrate becomes completely immaterial on this issue and is no longer a matter that the court should take into account in determining the existence or nonexistence of probable cause. This is true since it is the function of the court to determine whether the accuser had probable cause for initiating the proceedings, and not merely to determine whether the magistrate erred in dismissing the charge.

        Id. at § 663 cmt. c.

      . This conclusion was the culmination of different views Mississippi courts have taken of the effect of a conviction on the "want of probable cause” element of malicious prosecution. Brooks v. Super Service, Inc., 183 Miss. 833, 833, 185 So. 202, 202 (1938) explained that historically there were three lines of cases dealing with the effect of a conviction on probable cause: (1) it was considered conclusive evidence of probable cause; (2) it was considered conclusive evidence unless obtained by fraud, perjury, or other corrupt means; or (3) it was only prima facie evidence and may be rebutted. Brooks “unhesitatingly decline[d] to follow” the first line of cases, and aligned itself with the second line of cases. Subsequent cases have followed the third line. See Gaylord v. Sicard, 384 So.2d 1042, 1044 (Miss.1980) (overruled on other grounds) ("[C]onviction in a lower criminal court, although reversed by an appellate court, [was] prima facie evidence that the prosecuting party had probable cause to proceed with the prosecution, which may be overcome by the defendant’s (plaintiff in the civil proceeding) proof.”); J.C. Penney Co. v. Blush, 356 So.2d 590, 592 (Miss.1978) (overruled on other grounds) (Evidence of conviction was prima facie evidence probable cause existed.); Hyde Constr. Co., Inc. v. Koehring Co., 387 F.Supp. 702, 713 (S.D.Miss.1974) (overruled by Dunn v. Koehring Co., 546 F.2d 1193 (5th Cir.1977)) ("In Mississippi, it [was] also clear that a judgment of conviction at the original prosecution, whether reversed or not, [was] prima facie if not conclusive evidence of probable cause, at least in the absence of fraud, perjury or other corrupt practices.”). But see Pugh v. Easterling, 367 So.2d 935, 938 (Miss.1979) ("We hold that a conviction is conclusive evidence of probable cause for instituting a criminal prosecution, and a plaintiff, in a suit for malicious prosecution based on a criminal prosecution, must show that the criminal proceeding terminated in his favor as a condition precedent to recovery.”).

      . We note that in Royal Oil, the plaintiff's evidence may rebut the prima facie case and not just present evidence of corrupt practices as indicated by American Law Reports and Corpus Juris Secundum.

        . In Porter v. Lowndes Co., Miss., 406 F.Supp.2d 708, 712-13 (N.D.Miss.2005) (Porter I), the district court granted the defendants’ motion for summary judgment as to Porter’s Section 1983 claim against Lowndes County and the sheriff’s department, because, after reviewing the evidence, it found the grand jury had probable cause to indict Porter.

      . The district court granted the defendants' motion for summary judgment for a malicious prosecution claim. Sullivan, 2007 WL 541619, at * 5-6. James Sullivan was indicted and arrested for criminal activity, but a jury acquitted him. Id. at *2.

      . Taylor did not cite the independent-intermediary doctrine as a secondary reason to deny the malicious prosecution claim, but held that this doctrine applied to false arrest. Taylor, 36 F.3d at 456-57.

      .We note that at the hearing the circuit court specifically cited only the indictment in granting the motion to dismiss. Regarding the element of lack of probable cause, the Court found "that probable cause did exist and especially in light of the indictment in Lowndes County, along with criminal charges."

      . Members 1st argued that it was entitled to dismissal as a matter of law because of “a complete lack of probable cause as evidenced by the grand jury's indictment.”

      . Before a court converts a motion to dismiss to a motion for summary judgment, the nonmoving party must be granted ten-days' notice. Sullivan v. Tullos, 19 So.3d 1271, 1274-76 (¶¶ 14-19) (Miss.2009).


author: MAXWELL, J.,

text:
    Robert E. HUGHES a/k/a Robert Hughes a/k/a Robert Earl Hughes, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00892-COA.
    Court of Appeals of Mississippi.
    June 12, 2012.
    Rehearing Denied Oct. 16, 2012.
    Certiorari Denied Jan. 24, 2013.

      Robert E. Hughes, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Robert E. Hughes appeals the May 2011 dismissal of two motions for post-conviction relief (PCR). Hughes had previously been denied post-conviction relief in March 2009. Thus, both motions are procedurally barred as successive. Because we find no applicable exception to this procedural bar, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 20, 2004, Hughes allegedly robbed Ladarreo Wells at gunpoint, taking his 1991 Chevrolet Caprice. Though Hughes was caught and arrested for armed carjacking, a Hinds County grand jury returned an indictment charging him with armed robbery. On the advise of counsel, Hughes pled guilty to armed robbery on March 14, 2006. The circuit court sentenced Hughes to twenty-five years in the custody of the Mississippi Department of Corrections, with ten years suspended and fifteen years to serve, followed by three years of post-release supervision.

¶ 3. In October 2007, Hughes filed his first PCR motion. He filed a second PCR motion on March 13, 2009, which was denied on March 31, 2009. Hughes did not appeal this order of denial. On December 13, 2010, he filed a third PCR motion. The circuit court dismissed this motion, along with his 2007 motion, by order dated May 16, 2011. It is from this order that Hughes appeals.

STANDARD OF REVIEW

¶ 4. We review the dismissal or denial of a PCR motion for abuse of discretion. We will only reverse if the trial court’s decision is clearly erroneous. Crosby v. State, 16 So.3d 74, 77 (¶ 5) (Miss.Ct.App.2009). When reviewing questions of law, our standard is de novo. Williams v. State, 872 So.2d 711, 712 (¶2) (Miss.Ct. App.2004). “The trial court may summarily dismiss a PCR motion where ‘it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.’ ” White v. State, 59 So.3d 633, 635 (¶ 4) (Miss.Ct.App.2011) (quoting Miss.Code Ann. § 99-39-11(2) (Supp. 2010)). “This court will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate ‘a claim procedurally alive substantially showing the denial of a state or federal right.’” Id. (quoting Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009)).

DISCUSSION

¶ 5. On appeal, Hughes argues he is entitled to relief because his guilty plea was not valid and his counsel was ineffective. Because the March 2009 denial of post-conviction relief addressed both of these claims, we find these issues are procedurally barred. And we reject Hughes’s re-characterization of his claims as errors affecting fundamental rights, not subject to the procedural bars. Instead, we find Hughes’s mere assertions of constitutional-rights violations do not trigger any procedural-bar exceptions.

I. Procedural Bars

¶ 6. Under Mississippi Code Annotated section 99-39-23(6) (Supp.2011), an order “denying relief ... is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.” In Hughes’s 2009 PCR motion, he raised the very same claims as his outstanding 2007 PCR motion — that his counsel was ineffective and his guilty plea was involuntary. The circuit court’s March 2009 order expressly found these claims to be without merit. Hughes did not appeal this order. Because the 2009 order disposed of the claims also made in his 2007 motion, we find it acted as a procedural bar to this later-dismissed motion. See Madden v. State, 52 So.3d 411, 412 (¶ 7) (Miss.Ct.App. 2010) (applying successive-writ bar to issues previously addressed by court when reviewing a separate PCR motion). Likewise, it barred his 2010 motion as successive under section 99-39-23(6).

¶ 7. Mississippi Code Annotated section 99-39-5(2) (Supp.2011) also requires that “[a] motion for relief under this article shall be made ... in case of guilty plea, within three (3) years after entry of the judgment of conviction.” Hughes’s 2010 motion was not filed until December 13, 2010, more than four-and-a-half years after his March 14, 2006 guilty plea. So, we find Hughes’s 2010 PCR motion is also time-barred.

II. No Exceptions to the Procedural Bars Apply

¶8. Because Hughes raises issues that are both successive and untimely, we look to see whether an exception to these procedural bars applies. “The burden falls on the movant to show he has met a statutory exception.” White, 59 So.3d at 635 (¶ 8) (citing Adams v. State, 954 So.2d 1051, 1053 (Miss.Ct.App.2007)). “Errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act].” Id. (quoting Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010)). “But mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar.” Id. at 636 (¶ 11) (citing Chandler v. State, 44 So.3d 442, 444 (¶8) (Miss.Ct.App.2010)). From our review, we find no issues that overcome the procedural bars.

¶ 9. Hughes argues his guilty plea was not voluntary because he was neither advised of the minimum sentence for armed robbery nor the fact his guilty plea would waive his right against self-incrimination. But “a claim of an involuntary guilty plea does not surmount the procedural bar.” Smith v. State, 922 So.2d 43, 48 (¶ 13) (Miss.Ct.App.2006) (citing Trotter v. State, 907 So.2d 397, 402 (¶¶ 14-15) (Miss.Ct.App.2005)). In Trotter, this court rejected the argument that an involuntary-guilty-plea claim should be considered a claim of a violation of a fundamental right. Trotter, 907 So.2d at 402 (¶ 15). Instead, we have found this claim concerns one of the constitutional rights that is subject to procedural bar. Id. (citing Cole v. State, 608 So.2d 1313, 1319 (Miss.1992)). Further, Hughes’s sworn plea petition shows that he was advised not only that the minimum sentence for armed robbery was three years but also that he was waiving his right against self-incrimination.

¶ 10. In contrast, the right to be free from an illegal sentence is a fundamental right not subject to the time-bar or res judicata. Kennedy v. State, 732 So.2d 184, 186-87 (¶¶ 7-8) (Miss.1999). In his reply brief, Hughes asserts he was given an illegal sentence because he was sentenced for armed robbery. Despite pleading guilty to armed robbery, Hughes claims he was wrongly charged with this crime. Hughes suggests he is only guilty of carjacking. But this distinction in charges is of no import here. The law is clear that where two or more statutes govern a given course of conduct, the State may elect to proceed under either statute, so long as the accused is given fair notice of the crime charged. Cumbest v. State, 456 So.2d 209, 228 (Miss.1984) (citations omitted).

¶ 11. The State chose to present a charge of armed robbery. And after the grand jury returned an indictment charging armed robbery, Hughes pled guilty to this offense. Therefore, we find no merit to his claim that his sentence was illegal.

¶ 12. Hughes also claims his constitutional right to effective assistance of counsel was violated. “[T]he Mississippi Supreme Court has consistently held that the time bar of Mississippi Code Annotated section 97-39-5(2) applies to post-conviction relief claims based on ineffective assistance of counsel.” Crosby, 16 So.3d at 78 (¶8). An ineffective-assistance claim requires showing: (1) counsel’s performance was deficient; and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). While “[i]t is conceivable that under the facts of a particular case, ... a lawyer’s performance was so deficient, and so prejudicial to the defendant that the defendant’s fundamental constitutional rights were violated,” the supreme court “has never held that merely raising a claim of ineffective assistance of counsel is sufficient to surmount the procedural bar.” Smith, 922 So.2d at 47 (¶ 9) (quoting Bevill v. State, 669 So.2d 14, 17 (Miss.1996))

¶ 13. We find Hughes merely asserts a claim of ineffective assistance of counsel under Strickland, without supporting his claim with facts that would overcome the strong presumption his counsel’s performance was sufficient. See id. at (¶¶ 9-10). Hughes’s deficiency argument is based on the same premise as his illegal-sentence argument — that because he was guilty of carjacking he could not be guilty of armed robbery. And Hughes claims his counsel was deficient for not advising him so. As just discussed, Hughes is incorrect-the State was entitled to proceed with the charge of armed robbery. Thus, Hughes cannot show his counsel was deficient at all, let alone so deficient as to overcome the procedural bars.

CONCLUSION

¶ 14. Because we find Hughes’s 2007 and 2010 PCR motions are successive writs and his 2010 motion also falls outside the three-year statute of limitations under section 99-89-5(2), we find both motions to be procedurally barred. Because Hughes has failed to establish an exception to the applicable procedural bars, we affirm the circuit court’s dismissal of Hughes’s PCR motions.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY DISMISSING THE MOTIONS FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . An armed carjacking also qualifies as an armed robbery. Under Mississippi Code Annotated section 97-3-79 (Rev. 2006), "Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery-”