author: KITCHENS, Justice, for the Court: DICKINSON, Presiding Justice,

text:
    Robert D. SHERMAN a/k/a Robert Sherman v. STATE of Mississippi.
    No. 2012-KA-01573-SCT.
    Supreme Court of Mississippi.
    March 20, 2014.
    Rehearing Denied May 22, 2014.

      Office of State Public Defender by Mollie Marie McMillin, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Elliott George Flaggs, John R. Henry, Jr., attorneys for appellee.
    Before WALLER, C.J., KITCHENS and COLEMAN, JJ.
   KITCHENS, Justice, for the Court:

¶ 1. Robert Sherman was indicted for willfully, unlawfully, and feloniously possessing pseudoephedrine and sodium hydroxide, two ingredients used in the manufacture of methamphetamine, with the unlawful intent to manufacture a controlled substance. He was tried and convicted in the Warren County Circuit Court, then sentenced to twelve years in the custody of the Mississippi Department of Corrections, with eight years to serve and four years suspended, plus five years of post-release supervision. Sherman appeals, arguing that his conviction (1) was based upon insufficient evidence, or (2) was against the overwhelming weight of the evidence. We affirm Sherman’s conviction and sentence.

FACTS

¶ 2. The following facts are gleaned from the testimony of the several witnesses who testified at trial. On October 9, 2009, Dwayne Smith, a narcotics investigator for the Vicksburg Police Department, received a complaint regarding possible methamphetamine production at 4407 Halls Ferry Road in Vicksburg, Mississippi. He called Agent Norman Harris of the Mississippi Bureau of .Narcotics to accompany him to the site of the alleged criminal activity. Smith testified that it was getting dark as the officers arrived around 7:30 or 8:00 p.m. Smith and Harris knocked on the door of the trailer at 4407 Halls Ferry Road, and the knock was answered by Sherman’s girlfriend. The officers obtained her permission to search the trailer, but the search yielded nothing.

¶ 3. Upon leaving the trailer, the officers saw two men, Sherman and Calvin Brewer, walking out of the woods about fifteen feet behind Sherman’s trailer. Sherman was carrying a fishing pole and tackle box, and Brewer was holding a machete. The officers instructed Brewer to drop the machete, which he did. They patted him down, finding a marihuana grinder on his person. Brewer was placed in police custody.

¶ 4. The officers began investigating the area around Sherman’s trailer with the aid of a flashlight. Officer Smith found a bottle of liquid drain cleaner near someone else’s trailer in the general vicinity of the area where Sherman and Brewer had walked out of the woods. He acknowledged under cross-examination that the cleaner was not next to Sherman’s trailer. The State’s Exhibit 12 showed that the cleaner was found two trailers away from Sherman’s, near the path on which the two men had walked out of the woods. The drain cleaner formed the basis for Sherman’s sodium hydroxide, precursor possession charge. Officer Smith testified that drain cleaner can be used to manufacture crystal methamphetamine. According to Smith, when Harris showed the bottle of drain cleaner to Sherman, Sherman dropped his head and began to cooperate with the officers. Sherman agreed to show the officers where the meth lab was located and led them to a “cook site” near the edge of the woods. Smith testified that the cook site was “in some bushes, under some mud, probably about two feet buried in mud.” Smith said that the visibility was poor and the officers would not have been able to find the cook site without Sherman’s assistance.

¶ 5. The “cook” itself was a plastic, two-liter Mountain Dew bottle, which Smith testified was used to make methamphetamine by means of the “shake-and-bake” method. He stated that the chemicals found in the bottle “had just been cooked” when they found it. As Sherman and the officers walked back from the cook site, toward Sherman’s trailer, the officers noticed a black bag approximately fifteen to twenty feet away. Inside the bag was a box of pseudoephedrine, a known precursor of methamphetamine. Sherman was placed under arrest. Harris testified that another man on a motorcycle emerged from the woods several hundred yards away from the place at which the officers were interviewing Sherman. The man was never identified.

¶ 6. Brewer testified for the State in exchange for a deal which resulted in his being placed in the drug court program. Brewer testified that, on the day the two were arrested, he had been doing some electrical work for Sherman. The two men had made an arrangement by which Sherman would pay Brewer for working with him with methamphetamine. According to Brewer, he was to act as a decoy by fishing in the lake near- the trailer park while Sherman and a man named James Hawkins cooked the meth. He also testified that Sherman had possession of the black bag, in which the police later found pseudoephedrine, approximately thirty minutes before they were arrested. Brewer said Sherman had ditched the bag as he and Sherman were walking back to the trailer park, and Sherman was the last person Brewer had seen with the bag.

¶ 7. Sherman testified in his own defense. His version of events differs dramatically from the officers’ testimony and Brewer’s. Sherman denied leaving the black bag containing precursors in the woods, he denied possessing the bottle of drain cleaner, and he denied performing a “one-pot cook” at the cook site in question. According to Sherman, on the day he was arrested, he had been fishing in the pond behind the trailer park. He did not catch any fish, he said. On the way out of the woods; he ran into Brewer just before the two were arrested. Sherman denied having led the officers to the cook site, saying instead that he had been showing them where he had been fishing that day and, on the way, the officers had discovered the cook site and the black bag.

¶ 8. The jury found Sherman guilty, and he was convicted of having been in possession of precursor substances in violation of Mississippi Code Section 41-29-313(l)(a)(ii). Sherman filed a motion for judgment notwithstanding the verdict (JNOV), or, in the alternative, for a new trial. The trial court denied the motion, finding that sufficient evidence was presented to the jury to convict Sherman, and that the verdict was not against the overwhelming weight of the evidence. Sherman was sentenced to twelve years in the custody of the Mississippi Department of Corrections, with eight years to serve and four years suspended, and five years of post-release supervision. Sherman appeals, arguing that his motion for JNOV or new trial should have been granted, claiming that there was insufficient evidence at trial to support a conviction, or, in the alternative, his conviction was against the overwhelming weight of the evidence.

ANALYSIS

1. Whether the trial court erred in denying Sherman’s motion for JNOV because the evidence presented against him was insufficient to support a conviction.

¶ 9. When reviewing the sufficiency of the evidence against an accused in the face of a motion for JNOV, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). If “reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient.” Id. (quotation omitted).

¶10. Section 41-29-313(l)(a)(ii), the code section Sherman was charged with violating, provides:

(l)(a) Except as authorized in this section, it is unlawful for any person to knowingly or intentionally:
(ii) Purchase, possess, transfer, manufacture, attempt to manufacture or distribute any two (2) or more of the listed precursor chemicals or drugs in any amount, knowing, or under circumstances where one reasonably should know, that the listed precursor chemical or drug will be used to unlawfully manufacture a controlled substance[.]

Miss.Code Ann. § 41-29-313(l)(a)(ii) (Rev. 2013). Sherman was charged with possessing pseudoephedrine and sodium hydroxide with the unlawful intent to manufacture a controlled substance. Both pseudoephedrine and sodium hydroxide are listed as precursor chemicals. See Miss.Code Ann. § 41-29-313(l)(b)(iv)-(xiv) (Rev.2013).

¶ 11. The jury was instructed that, for it to find Sherman guilty of possession of precursors:

[TJhere must be sufficient facts to warrant a finding beyond a reasonable doubt that the defendant was aware of the character and presence of the precursor substances and was intentionally and consciously in possession of the precursor substances. It need not be actual physical possession. Constructive possession may be shown by establishing that the precursor substances were subject to the defendant’s dominion or control.

A. The Pseudoephedrine

¶ 12. “A presumption of constructive possession arises against the owner of premises upon which contraband is found.” Cunningham v. State, 583 So.2d 960, 962 (Miss.1991). Sherman argues that he did not own the property on which the black bag containing the pseudoephedrine pills was located, and that the State had failed to rebut the presumption that the owner of the property constructively possessed the precursor. He argues that Brewer’s testimony linking him to the black bag was inconsistent and had been given in return for a lenient resolution of the charge against Brewer.

¶ 13. The State responds that competent evidence connected Sherman to the black bag in which the pseudoephed-rine was found. Brewer testified that, thirty minutes prior to Sherman’s arrest, the bag was in Sherman’s physical possession and that he had ditched it in the woods. We agree that the State adduced sufficient evidence to connect Sherman to the pseudoephedrine in the black bag. The State offered testimony showing that Sherman was “aware of the presence and character of the [pseudoephedrine] and was intentionally and consciously in possession of it.” Johnson v. State, 81 So.3d 1020,1023 (¶ 7) (Miss.2011) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)). The evidence, although disputed by Sherman, was sufficient to show that Sherman constructively possessed the pseudoephed-rine pills in the black bag. In fact, if one believes Brewer, the evidence showed that Sherman actually had possessed the bag.

B. The Brain Cleaner

¶ 14. The bottle of drain cleaner, which contained the precursor sodium hydroxide, was found near the area of the woods from which Sherman and Brewer emerged prior to their arrests. Officer Smith admitted on cross examination that the drain cleaner was not found next to Sherman’s trailer, but someone else’s. Agent Harris marked the drain cleaner as having been found near a trailer near the wooded area from which Brewer and Sherman had emerged. The cleaner was found in close proximity to the point at which the two men had emerged, next to a trailer that was two trailers away from Sherman’s residence. There is no evidence of an acknowledgment by Sherman that the drain cleaner was his. Brewer never testified about it. The investigating officers testified that, when confronted with the bottle, Sherman had hung his head and asked Harris whether the officer would help him out if he agreed to show the police where “the cook” was. Harris testified about what happened when he told Sherman that the officers were there to investigate a complaint regarding meth manufacturing in the area.

Q: And did he say anything at all?
A: Basically, he told me, they were out there fishing. He was — had a fishing pole and a tackle box and they were out there fishing and there wasn’t anything going on.
Q: And what were the other agents and officers doing while you were talking to him?
A: They were then searching the area where they saw them coming from.
Q: And was anything of evidentiary value found at that time?
A: Investigator Smith retrieved a bottle of liquid draino [sic].
Q: Did you relay that information that you found a precursor substance to Robert Sherman?
A: I did.
Q: And did he admit to you to having a meth cook at that time?
A: He did not but we did continue to talk and he later told me that; Mr. Harris, help me out and I will show where the lab is.

¶ 15. Officer Smith also testified about Agent Harris’s confronting Sherman with the bottle of drain cleaner.

Q: Okay, did Agent Harris, when presented with [the bottle of drain cleaner], present that evidence to the Defendant, Robert Sherman?
A: Yes, sir.
Q: And you were standing there with your eyes and you saw Agent Harris present this, how did you see the Defendant react when presented with this precursor substance?
A: Once it was presented, shown the precursor, he dropped his head.
Q: Okay. At that point, I guess, did his cooperativeness change?
A: Yes. He was totally being cooperative at that time.

¶ 16. At no point did Sherman affirmatively admit that he owned or possessed the drain cleaner with which the police confronted him. Sherman was linked to the drain cleaner, and the sodium hydroxide precursor it contained, by testimony that it was found near the location where Sherman had emerged from the woods (although on another’s property), and that Sherman immediately had dropped his head and started cooperating with police after being confronted with it by leading them to the cook site near the location of the bag containing the pseudoephedrine. The issue before us is whether the State presented sufficient evidence and incriminating circumstances to support a conviction of constructive possession of the drain cleaner.

¶ 17. For one to be in constructive possession, “there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Johnson, 81 So.3d at 1023 (¶ 7) (quotation omitted). “Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.” Curry, 249 So.2d at 416. In Johnson, the defendant was convicted of constructively possessing cocaine. Johnson, 81 So.3d at 1022 (¶ 5). The Mississippi Bureau of Narcotics had been conducting a sting operation at a convenience store. Id. (¶ 3). The agents used an informant to purchase drugs from a known drug dealer in the area. Id. After the informant obtained the drugs, the agents sped to the scene. Id. When they arrived, Johnson was standing next to a car that had not been at the scene when the drug deal had occurred. Id. (¶ 4). Johnson had not been on the scene when the drug deal had occurred. Id. The agents noticed Johnson speaking with a man in the car and arrested both of them. Id. A search of the car revealed 0.7 grams of cocaine under the driver’s-side visor. Id. Johnson was arrested for constructively possessing the cocaine found in the car. Id. No evidence was presented indicating that Johnson had owned or driven the car. Id. at 1024 (¶ 11). After his conviction, Johnson challenged the sufficiency of the evidence convicting him of possession of cocaine. Id. at 1021 (¶ 1). This Court overturned his conviction, finding that the State did not “prove the defendant was aware of the cocaine and intentionally possessed it.” Id. at 1026 (¶ 22). Ultimately, this Court held that “Johnson’s location near the vehicle, absent additional incriminating circumstances, is not sufficient to sustain his conviction of constructive possession.” Id. (¶ 23) (quotation omitted).

¶ 18. Here, the drain cleaner was found near where Sherman and Brewer came out of the woods. Under Johnson, absent any other incriminating circumstances, the proximity to the precursor alone indeed may not have been sufficient evidence to show constructive possession. However, we find that there were additional incriminating circumstances which, in combination with Sherman’s proximity to the drain cleaner, were sufficient to support a jury finding that Sherman constructively possessed the drain cleaner. Testimony was adduced that Sherman instantly began cooperating with investigators when shown the drain cleaner. Sherman’s willingness to show the officers the cook site after being confronted with the drain cleaner could be interpreted to mean that Sherman knew the drain cleaner was his and that he intended to use it in the manufacture of methamphetamine. Further, the officers did find a meth cook site in the woods, near a bag that contained another precursor which Brewer testified belonged to Sherman.

¶ 19. Looking at the evidence in the light most favorable to the State, we find that a reasonable jury could have found beyond a reasonable doubt that Sherman constructively possessed the drain cleaner. His proximity to the drain cleaner, combined with the accompanying incriminating circumstances of the meth cook site and Brewer’s testimony, provide sufficient evidence to support the jury’s guilty verdict.

2. Whether the trial court erred in denying Sherman’s motion for new trial, as the overwhelming weight of the evidence supported a finding that Sherman was not guilty.

¶ 20. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). The Court must view the evidence in the light most favorable to the verdict, and if it disagrees with the verdict, the proper remedy is to grant a new trial. Id.

¶21. Sherman argues that there is a lack of evidence showing that he actually possessed the two precursor substances. He also argues that the officers failed to eliminate other potential suspects by failing to apprehend or identify the man on the motorcycle who appeared at the edge of the woods during Sherman’s interview. Sherman posits that this man could have been the possessor of the black bag. We disagree. ■ Brewer testified that Sherman had been cooking methamphetamine at the cook site before the two were arrested, and that he had possessed the black bag containing the pseudoephedrine pills. Smith and Harris testified that Sherman had agreed to show them the cook site after they confronted him with the drain cleaner, and the officers did actually find a cook site with his assistance. Brewer testified that the fishing equipment was used merely as a decoy in an effort to fool any suspicious parties, countering Sherman’s testimony that he had merely been fishing. Sherman’s testimony was vastly different from that of Brewer and the police; but it was up to the jury to determine whether the State sufficiently proved that Sherman had possessed the precursors constructively. Further, the jury was made aware of the presence of the man on the motorcycle and a potential third actor. It was for the jury to decide whether this was relevant. The jury resolved these factual issues against Sherman, and we cannot say that his conviction was against the overwhelming weight of the evidence when viewing the evidence in the light most favorable to the verdict, nor would our upholding the verdict sanction an “unconscionable injustice.” The trial court did not err in denying Sherman’s motion for a new trial.

CONCLUSION

¶ 22. The State presented sufficient evidence to support a conviction, and the conviction was not against the overwhelming weight of the evidence. The conflicting evidence was weighed by the jury, and the jury found against Sherman. The trial court did not err when it denied Sherman’s motion for JNOV or a new trial. Accordingly, Robert Sherman’s conviction and sentence for possession of precursors are affirmed.

¶ 23. CONVICTION OF POSSESSION OF PRECURSORS WITH INTENT TO MANUFACTURE METHAMPHETAMINE AND SENTENCE OF TWELVE (12) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHT (8) YEARS TO SERVE AND FOUR (4) YEARS SUSPENDED, WITH FIVE (5) YEARS OF POST-RELEASE SUPERVISION, WITH CONDITIONS, AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, PIERCE AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND KING, JJ.

DICKINSON, Presiding Justice,

dissenting:

¶24. The majority believes the State introduced sufficient evidence for the jury to find Sherman in constructive possession of a can of drain cleaner that police found. But Sherman was not found in close proximity to the drain cleaner, and no evidence whatsoever connected Sherman to the drain cleaner, so I respectfully dissent.

ANALYSIS.

Sherman was not in close proximity to the drain cleaner.

¶ 25. The majority never says Sherman was in close proximity to the drain cleaner. Police interviewed Sherman on his property. They later found the drain cleaner in what they described as the “general vicinity” of where they had observed Sherman walk out of the woods, carrying a fishing pole and tackle box. The officers never suggested that they saw Sherman toss or hide the drain cleaner.

¶ 26. Furthermore, when the police officers saw Sherman walk out of the woods, he was approximately fifteen feet from his trailer. They later found the drain cleaner two trailers away from Sherman’s trailer. So, unless one presumes that a person who is fifteen feet away is in close proximity to drain cleaner that is two mobile homes away (few, if any, mobile homes are only seven feet wide) Sherman was not in close proximity to the drain cleaner.

No evidence connected Sherman to the drain cleaner.

¶ 27. Even if one accepts the majority’s position that “in the vicinity” equals close proximity, our precedent clearly requires more. The majority correctly observes that, while proximity is an essential element, it is “not adequate in the absence of other incriminating circumstances.” The majority says there is more, but, after scrutinizing the record, I am unable to find it.

¶28. The majority says that Sherman — when confronted with the drain cleaner-hung his head and began to cooperate. In reading the majority’s characterization of this event, one might conclude that, upon being confronted with the drain cleaner that was found two trailers away, Sherman immediately hung his head in shame and led the officers to the meth lab. This characterization is at odds with Officer Harris’s testimony.

¶ 29. When asked whether Sherman, upon being confronted with the drain cleaner, admitted wrongdoing, Officer Harris testified: “He did not but we did continue to talk and he later told me that Mr. Harris, help me out and I will show where the lab is.” This testimony hardly establishes cause and effect, that is to say, it hardly proves that the drain cleaner is what caused Sherman later to cooperate.

¶ 30. Also, there is the absence of any testimony from Brewer connecting Sherman to the drain cleaner. In exchange for his testimony against Sherman, Brewer pleaded guilty and was given a favorable deal. Even so, he never connected Sherman to the drain cleaner. And because, in exchange for his deal, he was required to cooperate with the State in its case against Sherman, he certainly would have tied Sherman to the drain cleaner if he could have.

CONCLUSION

¶ 31. Given that Sherman was not in close proximity to the drain cleaner; that he never admitted that the drain cleaner was his; that no evidence tied him to it; and that the State’s star witness did not testify that the drain cleaner was Sherman’s, I simply cannot agree that the State presented sufficient evidence for a jury to find — beyond a reasonable doubt— that Sherman was in constructive possession of the drain cleaner. For these reasons, I respectfully dissent.

CHANDLER AND KING, JJ., JOIN THIS OPINION.

      . See Miss.Code Ann. § 41 —29—313(1)(a)(ii) (Rev.2013).

      . This kind of chemical product can be used as a precursor, or forerunner, of methamphetamine.

      . Hawkins was not arrested in connection with this crime.

      . Curry v. State, 249 So.2d 414, 416 (Miss.1971).


source: Caselaw Access Project

author: CARLTON, J., for the Court:

license: Public Domain

text:
    Jimmy SWINDLE, Individually, and as Natural Father and Guardian of Jason Swindle, A Minor Appellant v. NESHOBA COUNTY SCHOOL DISTRICT, Appellee.
    No. 2012-CA-00758-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2013.
    Rehearing Denied Jan. 7, 2014.
    Certiorari Denied May 8, 2014.

      Wayne E. Ferrell Jr., attorney for appellant.
    Roy A. Smith Jr., Steven James Griffin, Flowood, attorneys for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J., for the Court:

¶ 1. Jimmy Swindle (Swindle), individually and as natural father and guardian of Jason Swindle (Jason), a minor, filed the present action against the Neshoba County School District (School District) pursuant to the Mississippi Torts Claims Act (MTCA), Mississippi Code Annotated section 11-46-1 (Rev.2012), et seq., after his son was injured during a school-sponsored activity. The Neshoba County Circuit Court granted the School District’s motion for summary judgment after finding the School District was entitled to discretionary-function immunity under the MTCA. Swindle now appeals. We find that the trial court erred in determining that discretionary immunity of the MTCA barred the action. We, therefore, reverse the grant of summary judgment and remand this case to the trial court for further proceedings. We find a genuine issue of material fact exists as to whether the School District violated its affirmative duty to maintain discipline and to supervise the students, as required by the School District’s handbook.

FACTS

¶ 2. On May 4, 2007, two members of the Neshoba Central High School football team, Eathan Scarbrough and Jason, got into a physical altercation on the football field during football practice after school. Jason testified that he was walking back to the lines during practice when all of a sudden he felt Eathan on top of him, hitting him. The coaches on the field intervened and inquired as to why the two were fighting. Jason responded, “I don’t know,” and Eathan gave no response. During his deposition, Jason admitted that these types of minor skirmishes are common during football practice, due to its physical nature, and the skirmishes are usually over soon after they happen.

¶ 3. According to Swindle, the next day, on May 5, 2007, when left unsupervised in front of the football locker room after football practice, Eathan again attacked Jason and accused him of talking negatively about Eathan. This time, Eathan beat Jason so severely that he suffered brain damage and bodily injury. Swindle states that Jason suffered a seizure after being knocked to the ground by Eathan. The players notified the coaches of the altercation. Upon arriving at the field house, Coach John Mullins observed Jason lying on the ground, and he testified that Jason was not exhibiting any seizure-like symptoms at that time. When Coach Mullins knelt down to check on Jason, he testified that Jason lunged out and punched Coach Mullins in the nose while yelling at Eath-an. Coach Mullins also stated that several coaches and players had to restrain Jason.

¶ 4. Coach Chuck Friend then instructed Jason to follow him to his office. Jason informed Coach Friend that he could not remember what happened, so Coach Friend returned to the field house to gather details from the players who had witnessed the incident. Swindle claims that the coaches did not call for immediate emergency medical assistance upon learning of the altercation. He also states that Jason suffered a second seizure, this time while unattended in Coach Friend’s office, when Coach Friend was questioning other football players about the incident. Coach Mullins arrived to the office and observed Jason experiencing the second seizure and called an ambulance.

¶ 5. On February 13, 2009, Swindle filed his third amended complaint against the School District, Eathan, and Eathan’s parents, Wendell and Martha Scarbrough, in Neshoba County Circuit Court. Swindle alleged that the School District breached the following duties: the duty to discipline and supervise its students as set forth in the Neshoba County School District handbook; the duty to provide a quick response to a medical emergency; and to adequately hire, train, and monitor its employees. The School District filed its answer and affirmative defenses on March 15, 2009.

¶6. On February 23, 2011, the School District filed a motion for summary judgment, claiming discretionary-function immunity pursuant to the MTCA. Swindle responded with a counter-motion for summary judgment on October 12, 2011. On February 28, 2012, the trial court granted the School District’s motion for summary judgment, entered a Rule 54 judgment of dismissal, and denied Swindle’s counter-motion for summary judgment. This appeal followed.

¶7. We find that the School District possessed a ministerial duty to maintain discipline and to supervise the students on school property during a school-sponsored activity, as required by the School District’s handbook; thus, a genuine issue of material fact exists as to whether the School District breached its duty to exercise ordinary care in supervising students. The discretionary-function immunity of the MTCA fails to apply herein as to this issue; accordingly, we reverse the trial court’s grant of summary judgment and remand on this basis.

STANDARD OF REVIEW

¶ 8. This Court applies a de novo standard when reviewing a trial court’s grant or denial of summary judgment. Waggoner v. Williamson, 8 So.3d 147, 152 (¶ 11) (Miss.2009). Mississippi Rule of Civil Procedure 56(c) provides that summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The supreme court has established that “[t]he moving party has the burden of demonstrating that no genuine issue of material fact(s) exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” Waggoner, 8 So.3d at 152-53 (¶ 11) (citations omitted).

DISCUSSION

¶ 9. Swindle argues that the trial court erred in granting the School District’s motion for summary judgment. Swindle specifically argues that the trial court erred in concluding that the actions and conduct of the coaches, teachers, administration in the School District, and the School District itself, constituted a discretionary duty relating to the supervision of the football players at the school. The School District constitutes a governmental entity, and the issue before us addresses whether immunity under the MTCA exists to bar the instant action against the School District in this case, or, if no governmental immunity exists, whether a disputed issue of material fact exists. We agree that the trial court erred in its determination. The School District herein possessed a ministerial duty to supervise and maintain discipline of students at school, as required by the affirmative duties set forth in the School District’s own handbook, and we, therefore, find that a question of material fact exists as to whether the School District breached its duty of ordinary care in performing this duty.

¶ 10. The School District argues that its alleged acts or omissions were not ministerial, but rather discretionary, in nature, thereby providing the School District with immunity pursuant to Mississippi Code Section ll-46-9(l)(d) (Rev.2012). Additionally, the School District argues that its football coaches possessed no notice that Eathan and Jason would engage in a physical altercation on May 5, 2007, and that such action was not foreseeable. The School District further submits that Eathan failed to exhibit any disciplinary problems prior to that point during spring football. In support of this argument, the coaches and Jason testified that skirmishes between the players are not uncommon during football practice. The coaches and Jason also testified that on May 4, 2007, the day before the May 5th assault at issue herein, the coaches intervened immediately after becoming aware of an altercation that occurred during practice. However, the record shows that at the time of this prior altercation on May 4th, when the coaches intervened, they failed to determine the cause of this prior altercation or achieve resolution of any remaining animosity, leaving foreseeability of a future altercation to be a disputed factual issue. The School District’s argument regarding foreseeability fails to address the failure of the coaches to comply with the supervision requirements set forth in the School District’s own handbook.

¶ 11. On May 5, 2007, the day of the assault, the students were unsupervised as they returned to the locker room after football practice ended, in violation of the School District’s handbook defining its supervision policy. With respect to the existence of discretionary immunity or a ministerial affirmative duty, the issue before us pertains to whether the coaches possessed an affirmative ministerial duty to supervise the students players at this time or whether the coaches possessed the discretion to exercise their own judgment regarding how and when to supervise students. Relevant to this inquiry, the students were still on school property within the designated time for practice during a school-sanctioned extracurricular activity, and the coaches were performing their official coaching duties. With respect to duty and discretion, the School District handbook defined the required supervision of students under such circumstances, and the handbook provided no exemption for coaches from this duty. Stated otherwise, the coaches possessed no discretion to refuse or fail to comply with the supervision requirements of the School District’s handbook.

¶ 12. Swindle also argues that the School District possessed a ministerial duty under Mississippi Code Annotated section 37-9-69 (Rev.2007) and under the School District’s handbook requiring Eath-an and Jason to be disciplined following the minor skirmish during tackling practice on May 4, 2007, and requiring supervision of the players the following day after practice when the students returned to the locker room. Swindle argues that the precedent applicable to a coach’s discretion in his operation of a team fails to apply herein, since football drills and instruction had ended and the students were unsupervised while returning to and outside of the locker room when Jason was assaulted.

¶ 13. The School District argues that immunity applies pursuant to 11-46-9(l)(d), and in support this argument, submits that its alleged conduct constitutes discretionary behavior. “A duty is discretionary if it requires the official to use her own judgment and discretion in the performance thereof.” Stewart ex rel. Womack v. City of Jackson, 804 So.2d 1041, 1048 (¶ 14) (Miss.2002). Our supreme court has deemed the coaching responsibilities of coordinating and supervising high school football players to be discretionary acts. See Harris v. McCray, 867 So.2d 188, 192 (¶ 15) (Miss.2003). The School District maintains that the football coaches at Neshoba Central High School exercised their own judgment and discretion in determining how to effectively operate their team. That judgment includes what drills to run, who played each position, how long practice should last, and the method for returning to the locker room at the conclusion of practice. The School District’s argument certainly addresses a coach’s discretion in teaching the strategies and maneuvers of football and the operation of such instruction. However, the argument fails to address the supervision requirements positively imposed on teachers and coaches by the School District’s handbook and the lack of any exemptions for coaches, from complying with the level of supervision required in the handbook.

¶ 14. The handbook states that these supervision and discipline requirements must be carried out “before, during, and after regular classes and in all extracurricular activities,” and at all times when under the legal supervision of the school. The return to the locker room included no instruction in football strategy, drills, technique, or training, but rather, involved the orderly return of students involved in this activity for personal hygiene and to collect personal belongings before leaving school property. The handbook clearly included all extracurricular activities and contained no exclusion for student football players or their coaches. The students were still un-' der the legal supervision of the school at the sanctioned extracurricular event, using school facilities and on school property.

¶ 15. As stated, the School District “constitutes a ‘governmental entity’ and a ‘political subdivision’ pursuant to the MTCA.” See Covington Cnty. Sch. Dist. v. Magee, 29 So.3d 1, 4 (¶ 7) (Miss.2010) (citing Miss.Code Ann. § 11-46-1 (Rev.2012)). “The MTCA provides the exclusive remedy against a governmental entity or its employee for the act or omission which gave rise to the suit.” Id. (citing Miss.Code Ann. § 11-46-7(1) (Rev.2012)). The supreme court has stated that the MTCA serves to provide immunity from suit to the State and its political subdivisions; however, the court clarified that “the MTCA waives immunity for claims for money damages arising out of the torts of government entities and employees while acting within the course and scope of their employment to the extent set forth in the MTCA.” Id. (citing Miss.Code Ann. §§ 11-46-3(1), 11-46-5(1) (Rev.2012)).

¶ 16. Mississippi Code Annotated section 11^16-9 lists the MTCA exemptions applicable to this case:

(1) A governmental entity and its em- ■ ployees acting within the course and scope of their employment or duties shall not be liable for any claim:
(b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid;
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part, of a governmental entity or employee thereof, whether or not the discretion be abused;

We turn to case law applying the MTCA to ascertain whether the duties here were discretionary or ministerial.

¶ 17. In Stewart, 804 So.2d at 1048 (¶ 15), the supreme court held that “an act is ministerial (if) the duty is one which has been positively imposed by law and its performance required at a time and in a manner or under conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion.” Id. (quotation omitted). Section 37-9-69 also requires school districts, principal, and teachers to hold students accountable “for disorderly conduct at school, on the way to and from school, on the playground, and during recess, stating:

It shall be the duty of each superintendent, principal!,] and teacher in the public schools of this state to enforce in the schools the courses of study prescribed by law or by the state board of education, to comply with the law in distribution and use of free textbooks, and to observe and enforce the statutes, rules and regulations prescribed for the operation of schools. Such superintendents, principals and teachers shall hold the pupils to strict account for disorderly conduct at school, on the way to and from school, on the playgrounds, and during recess.

If the School District’s conduct is deemed ministerial, it is then protected from liability only if ordinary care is exercised in performing or failing to perform the statutory duty or regulation. Stewart, 804 So.2d at 1048 (¶ 18).

¶ 18. The School District issued a handbook, entitled the Neshoba Central Student Handbook, that sets forth its code of conduct, including the requirement of student supervision. The handbook defines the affirmative duty or standard of ordinary care imposed on teachers and coaches to supervise students during and after class and at all extracurricular activities. The Neshoba Central handbook specifically provides: “The School Board holds all school personnel, including the superintendent, responsible for the proper conduct and control of students while under legal supervision of the school.” The handbook further states: “Administrators and teachers shall hold students to strict account for disorderly conduct or misconduct at any school, on the way to and from school, on the playgrounds, at school meetings, programs, functions and activities and upon school buses.” The handbook mandates: “All teachers must accept responsibility for ... maintaining reasonable discipline among the members of the student body before, during, and after regular classes and in all extracurricular activities -Students should never be left unsupervised!” See also Miss.Code Ann. § 37-9-69 (requires school districts, principals, and teachers to maintain discipline without defining any specific discipline methods or supervision levels, in contrast to the specific supervision requirements defined in the School District’s handbook).

¶ 19. Upon review, we find that neither the school handbook nor the statute provides an exclusion for the teachers or coaches of the football team from the code of conduct or from the rule mandating the faculty’s supervision over the students while on school property during a sanctioned extracurricular activity. See Dixon ex rel. Dixon v. Alcorn Cnty. Sch. Dist., No. 3:10-CV-00092-GHD-SAA, 2012 WL 273079, *4 (N.D.Miss.2012); Lang v. Bay St. Louis/Waveland, Sch. Dist., 764 So.2d 1234, 1240-41 (¶¶ 28-29) (Miss.1999); see generally Garrett v. Nw. Miss. Junior Coll, 674 So.2d 1, 4 (Miss.1996). The handbook specifies that teachers must maintain discipline over students in all extracurricular activities. Therefore, the School District’s duty to supervise the students in this case, as defined by the School District’s own handbook, constitutes a ministerial duty. The handbook left no discretion for teachers or coaches to decide whether to follow the handbook’s supervision requirements for students on school property assigned to their particular field of instruction at a school-sanctioned extracurricular activity. See id. at *4; Lang, 764 So.2d at 1285 (¶¶2-3), 1240-41 (¶¶ 28-29) (student injured after school-sponsored band concert due to falling off a brick wall to avoid a fight; supreme court held “the school district’s duty to control and discipline students is ministerial not discretionary”); see generally Garrett, 674 So.2d at 4.

¶ 20. Accordingly, we find a genuine issue of material fact exists as to whether the School District breached its ministerial duty to exercise ordinary care in supervising students as required by the School District’s handbook. Since we find the MTCA fails to bar this action, we reverse the trial court’s grant of summary judgment and remand this case for further proceedings consistent with this opinion. We find this issue determinative, and also find no merit to Swindle’s argument that a dispute of material fact exists in support of his claim that the School District breached a ministerial duty to seek immediate emergency medical treatment.

¶ 21. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, FAIR AND JAMES, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. MAXWELL J., NOT PARTICIPATING.

      . See Dixon, 2012 WL 273079 at *4; Lang, 764 So.2d at 1240-41 (¶¶ 28-29).

      . See generally 7 Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 65:208, at 495 (2001), which states:
      School boards must adopt and distribute to all teachers, school personnel, students, and parents or guardians a code of student conduct based on the rules governing student conduct and discipline adopted by the school board. Student conduct codes should be published in the student handbook.

      . See also Miss.Code Ann. § 37-3-83 (Supp. 2012) (School Safety Grant Program) (Offers various preventative services including metal detectors, video surveillance cameras, etc.; also states that to apply for grant monies, school must adopt a safety plan and update it on an annual basis).


author: IRVING, P. J., for the Court: ISHEE, J.,

text:
    Elizabeth DUNNAM, Appellant v. Darrin ABNEY and Hope Abney, Appellees.
    No. 2012-CA-00457-COA.
    Court of Appeals of Mississippi.
    Nov. 12, 2013.
    Rehearing Denied March 18, 2014.
    Certiorari Denied May 8, 2014.

      William Dribben Montgomery, Toby Justin Gammill, Jackson, attorneys for appellant.
    David Garner, Eugene Coursey Tullos, Raleigh, attorneys for appellees.
   IRVING, P. J., for the Court:

¶ 1. This appeal arises from a negligence action stemming from an automobile accident that occurred between Hope Abney (Hope) and Elizabeth Dunnam in Laurel, Mississippi, on January 28, 2010. As a result of the accident, Darrin Abney (Darrin), a passenger in the car driven by his wife, Hope, filed suit against Hope and Dunnam. Subsequently, Hope filed a cross-claim against Dunnam. On February 8, 2012, a Jasper County jury awarded damages to Hope and Darrin against Dun-nam at the instruction of the circuit court. Feeling aggrieved, Dunnam appeals and argues that the circuit court erred in instructing the jury to find for Hope on the cross-complaint, thereby precluding the jury from apportioning fault.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On January 28, 2010, an automobile driven by Dunnam was traveling west on Jefferson Street in Laurel, Mississippi. In the meantime, an automobile driven by Hope was traveling south on Ellisville Boulevard. Both vehicles approached the intersection of Jefferson Street and Ellisville Boulevard at approximately the same time. However, it is undisputed that Hope had the right-of-way and was not speeding. The weather conditions were reported as clear and dry. Upon reaching the intersection, Dunnam either paused or came to a complete stop at the stop sign that regulated westbound traffic on Jefferson Street, before pulling out into the intersection where she was struck by the automobile driven by Hope and occupied by Darrin. The front center of Hope’s vehicle made impact with the front passenger side of Dunnam’s vehicle.

¶ 4. At trial, Hope, Darrin, and Dunnam were the only ones who testified as to the events of that day. Dunnam testified that she was unfamiliar with the intersection and had only taken that route due to construction issues in Laurel at the time. She asserted that because the road angled and was not straight, she was unable to clearly see cars approaching from her right side. She stated that she came to a complete stop at the stop sign and looked to both her left and her right before proceeding out into the intersection at less than five miles per hour, but did not see Hope’s vehicle until the point of impact. Dunnam admitted that her failure to see Hope’s vehicle was the cause of the accident, as shown in the following colloquy:

Q. All right. Well, let me ask you this. Would you agree with me, Ms. Dun-nam, that your inability or your failure to see Mrs. [Hope] Abney is what caused this accident?
A. Yes, sir.
Q. There’s no dispute about that, is there?
A. No, sir.
Q, And even though you didn’t mean it to happen—
A. Right.
Q. Right.
Q. —what did happen, you caused by not seeing?
A. Right.
Q. And there’s no question in your mind about that, is there?
A. No, sir.
Q. And the jury should have no question about that?
A. No, sir.
Q. That the accident, while it is regrettable, was caused by your failure to see her?
A. Right.
Q. Now, do you know of anything that the driver of the car Mr. Abney— Darrin was riding in could have done to prevent the accident?
A. Unless she had seen me and swerved out of the way or slammed on brakes.
Q. But you don’t contend she was driving too fast?
A. No, sir.

¶ 5. Hope testified that as she came into the intersection, Dunnam’s vehicle stopped but then continued on into the intersection, causing Hope’s vehicle to strike Dunnam’s vehicle. Hope stated that she was traveling “[m]aybe not even [twenty] miles” per hour when she struck Dunnam’s vehicle. She further testified:

Q. And tell the Court and the jury what precautionary sign there is at the intersection of Jefferson Street and Ellisville Boulevard?
A. It was a stop sign on [Dunnam’s] side.
Q. Do you to your own personal knowledge know whether or not she stopped at the stop sign?
A. It was like a pause, but I can’t quite recall.
Q. You just don’t know then?
A. Yes, sir.
Q. All right. And then what happened?
A. The car proceeded out — it happened so fast until it was — it was an accident before we knew it.
Q. There was nothing you could have done to—
A. No, sir.
Q. —avoid the wreck?
A. No, sir.

Darrin testified that as Dunnam entered the intersection, Hope attempted to turn her car to keep from hitting Dunnam’s car.

¶ 6. At the close of the evidence, Dun-nam submitted the following jury instruction:

If you find by a preponderance of the evidence that the accident in question was caused by the negligenfce] and/or omissions of Elizabeth Dunnam and/or Hope Abney[,] you are instructed to apportion a percentage of fault to the defendant.

The circuit court refused Dunnam’s requested instruction and gave, instead, Hope’s requested peremptory instruction, which stated: “The [c]ourt instructs the jury to find for the Cross-Claimant, Hope Abney, against the Cross-Defendant, Elizabeth Dunnam.” Subsequently, the jury found for Hope and awarded damages to Darrin in the amount of $10,000 and to Hope in the amount of $75,000 on her cross-complaint.

¶ 7. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶8. On appeal, our standard of review for jury instructions is well settled:

[Appellate] [e]ourt[s do] not review jury instructions in isolation; rather, they are read as a whole to determine if the jury was properly instructed. Defects in specific instructions do not require reversal “where all instructions taken as a whole fairly — although not perfectly— announce the applicable primary rules of law.” However, if those instructions do not fairly or adequately instruct the jury, [appellate courts] can and will reverse.

Mitchell v. Barnes, 96 So.3d 771, 775 (¶ 9) (Miss.Ct.App.2012) (quoting Burton ex rel. Bradford, v. Barnett, 615 So.2d 580, 583 (Miss.1993)). The Mississippi Supreme Court has stated that “[w]hen analyzing the grant or refusal of a jury instruction, two questions should be asked: Does the instruction contain a correct statement of law and is the instruction warranted by the evidence?” Id. (quoting Beverly Enters. Inc. v. Reed, 961 So.2d 40, 43 (¶ 8) (Miss.2007)).

¶ 9. Dunnam argues that a question of fact remained at the end of the trial concerning liability. She asserts that a reasonable juror could have found that she was not negligent or that Hope was comparatively negligent. Therefore, Dunnam contends that the circuit court erred when it failed to allow the jury to apportion fault. Hope and Darrin contend that, based on uncontradicted testimony, the court properly removed the issue of liability from the jury’s consideration. We agree with Hope and Darrin.

¶ 10. Mississippi Code Annotated section 85-5-7(5) (Rev.2011) provides that “[i]n actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault.... ” Our supreme court has held that “Mississippi is a pure comparative-negligence state.” Wansley v. Brent, 80 So.3d 125, 128 (¶ 12) (Miss.Ct.App.2011). Pursuant to the doctrine of comparative negligence, “negligence is measured in terms of percentage, and any damages allowed shall be diminished in proportion to [the] amount of negligence attributable to the person for whose injury, damage[,] or death recovery is sought.” Melca v. Grant Plumbing & Air Conditioning Co., 67 So.3d 18, 23 (¶ 15) (Miss.Ct.App.2011).

¶ 11. While our state is a pure comparative-negligence state, an instruction allowing a jury to apportion fault between joint tortfeasors is appropriate only if there is some evidence that at least two people were potentially at fault. Here, there is no evidence that Hope, in any way, contributed to the accident. Hope admitted during trial that she saw Dunnam as Dunnam approached the stop sign and entered the intersection. However, Hope also testified that there was nothing that she could have done to avoid the accident. This testimony went unchallenged. In fact, Dunnam admitted that the accident was caused by her failure to see Hope’s vehicle before she entered the intersection. With Dunnam’s admission and her failure or inability to offer any expert testimony challenging Hope’s contention that Hope could not have avoided the accident, there was no factual dispute regarding liability left for the jury to decide.

¶ 12. The dissent contends that Mississippi Code Annotated section 63-3-805 (Rev.2013) governs this case. This section provides:

The driver of a vehicle shall stop as required by this chapter at the entrance to a through highway and shall yield the right-of-way to other vehicles which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute an immediate hazard. However, said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through highway shall yield the right-of-way to the vehicle so proceeding into or across the through highway.
The driver of a vehicle shall likewise stop in obedience to a stop sign as required by this chapter at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through highway and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, but may then proceed.

¶ 13. We agree as to the statute’s relevance. However, we part ways with the dissent over the application of the statute to the facts. Apparently, the dissent believes that Dunnam’s testimony that she stopped at the stop sign and looked both to her left and her right before slowly pulling into the intersection is enough to raise a factual issue as to whether Hope also may have been partially at fault. Despite Dun-nam’s uncontradicted testimony that she looked both to her left and her right and did not see Hope’s vehicle in the intersection, other undisputed facts prove, beyond any question, that Hope was approaching the intersection so closely, if not already in it, as to constitute an immediate hazard for Dunnam to pull out into the intersection.

¶ 14. It is undisputed that Hope was not speeding and was traveling “maybe not even [twenty] miles per hour.” Dunnam’s testimony — that at some point north of the intersection in question, Ellisville Boulevard “angled and was not straight” — does not create a triable issue of fact on the question of fault for at least three reasons. First, if Dunnam, from her position, could not see Hope because of the “angled and not-straight” portion of Ellisville Boulevard, then Hope would not have been able to see Dunnam either. Therefore, no fault could be assigned to Hope. Interestingly, however, Dunnam, even after entering the intersection, never saw Hope prior to impact. Second, Dunnam presented no evidence of the distance that the “angled” or “not-straight” portion of Ellisville Boulevard was from the intersection. Without evidence of such distance, the jury would have been left to speculate that the angled portion of Ellisville Boulevard north of the intersection is engineered in a manner that creates an immediate hazard to any motorist approaching the intersection of Ellis-ville Boulevard and Jefferson Street. Third, it appears physically impossible for Hope’s vehicle, traveling at a speed of no more than twenty miles per hour, maybe even less, to have suddenly appeared in the intersection when Dunnam claims that just seconds earlier, it could not be seen by her while she was stopped on the east side of the intersection. The point of impact of the collision — the front passenger side of Dunnam’s vehicle — is strong evidence that Dunnam’s assertion that Hope’s vehicle was not visible when Hope looked to her right is extremely implausible.

¶ 15. Our facts are strikingly similar to the facts in Stribling v. Hauerkamp, 771 So.2d 415 (Miss.Ct.App.2000). The relevant facts in Stribling are as follows:

At approximately 10:30 p.m. on the evening of February 22, 1998, the Hauer-kamp family was traveling south on U.S. Highway 45 in Lowndes County.... Hauerkamp was driving approximately fifty to fifty-five miles per hour. The speed limit on Highway 45 is fifty-five miles per hour. There was no dispute as to the speed of the Hauerkamp vehicle at trial....
Stribling ... was exiting a private driveway that met Highway 45. Stribling came to a stop at the end of the driveway, and after seeing the location of Hauerkamp’s vehicle, decided that he had enough time and distance to make a left turn across the southbound lane of the highway and on to the northbound lane. Stribling testified that when he began to exit the driveway he had a clear line of sight of the Hauerkamp vehicle, and that it was approximately ninety to one hundred feet away. Hauerkamp testified that when he initially saw Stribling’s vehicle exiting the driveway he was approximately ninety feet away. Mrs. Hauerkamp, who was sitting in the passenger side of the vehicle, screamed, “He’s gonna pull out.” Hauerkamp testified that he swerved to the right, then back to the left in an attempt to avoid the collision; however, a collision ensued before Mrs. Hauer-kamp completed her sentence. Hauerkamp collided with Stribling approximately on the centerline of the highway. Stribling testified that at the time of the impact one fourth of his vehicle was still in the southbound lane. Hauerkamp testified that a quarter to half of Stribling’s vehicle was still in the southbound lane at the time of impact. ...
At trial, Stribling made the following statements:
Q. Do you think he was totally responsible for the accident?
A. No, sir.
Q. Any way do you say you don’t think he was totally responsible for the accident?
A Because I think that, you know, probably at the time I shouldn’t have, , you know, pulled out. I shouldn’t have pulled out at the time.
Q. Why do you think Mr. — why is it your opinion that Mr. Hauerkamp is partly responsible for this accident? A. Because I felt that he could have avoided me. I felt that I was farther over into the northbound lane to be avoided.
Finding that the facts were not in dispute and Stribling was the sole cause of the accident, the trial judge granted a motion for directed verdict [in favor of Hauerkamp] at the close of the plaintiffs case.

Id. at 415-16 (¶¶ 2-7).

¶ 16. On appeal, this Court, after discussing the facts in some detail, as well as Mississippi Code Annotated sections 63-3-805, -807 (Rev.2013) and the circuit court’s finding, stated:

[Tjhere is no dispute of fact in the case at hand. Stribling not only agrees with Hauerkamp as to the details of the factual scenario of the accident, he admits to being at fault, even though he likewise faults Hauerkamp. Because there is no factual dispute presented, only a legal application remains. Hauerkamp was not traveling at an excessive speed and Stribling had a clear line of sight, as demonstrated by the exhibit Stribling offered into evidence....
Although we are loathe to take a case from a jury, under the stark facts of this case[,j we are left with no other conclusion other than the fact that the trial court was correct in granting the motion for directed verdict in Hauerkamp’s favor.

Stribling, 771 So.2d at 418 (¶¶ 14-15).

¶ 17. The evidence presented by Dun-nam is no stronger than the evidence presented by Stribling in Stribling, where the trial court found, and this Court agreed, “that the evidence [presented] was of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment could not possibly differ as to the verdict in favor of Hauerkamp.” Id. at (¶ 14). The same conclusion is justified by the facts here: no reasonable and fair-minded juror in the exercise of impartial judgment could possibly differ as to a verdict in favor of Hope.

¶ 18. Following our holding in Stribling and based on our review of the record, we cannot find that the circuit court erred in refusing Dunnam’s apportionment-of-fault jury instruction, as the uncontested evidence presented at trial demonstrated that it was Dunnam’s negligence that was the sole proximate cause of the accident and of Hope’s and Darrin’s injuries. Accordingly, this issue is without merit.

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

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

ISHEE, J.,

dissenting:

¶ 20. I respectfully dissent from the decision to affirm the Jasper County circuit court’s judgment against Dunnam. The majority finds that the trial court correctly instructed the jury to find that Dunnam was the sole proximate cause of the accident and injuries to Darrin and Hope. I disagree, finding that the trial court erred in instructing the jury to find for Hope. Accordingly, I would reverse the judgment and remand the case for findings consistent with this opinion.

¶ 21. Dunnam asserts that the trial court erroneously gave a peremptory instruction that precluded the jury from determining liability. Dunnam contends that a reasonable juror could have found Hope to be comparatively negligent. Hope and Darrin contend that the evidence presented at trial was undisputed and the trial court properly refused to allow the jury to consider apportionment of fault. I disagree.

¶ 22. “When reviewing requests for peremptory instructions, we consider the evidence in the light most favorable to the non-moving party, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence.” Entergy Miss., Inc. v. Bolden, 854 So.2d 1051, 1055 (¶ 8) (Miss.2003) (citing Steele v. Inn of Vicksburg Inc., 697 So.2d 378, 376 (Miss.1997)). Our rules and case law allow for questions to be removed from the jury’s consideration when there are no factual questions for the jury to resolve. M.R.C.P. 50(a) & cmt. See also Mayor & Bd. of Aldermen of Vicksburg v. Young, 616 So.2d 883, 886-87 (Miss.1992); Hasson v. Hale, 555 So.2d 1014, 1016 (Miss.1990); Bryant v. Alpha Entm’t Corp., 508 So.2d 1094, 1096-97 (Miss.1987). I believe a factual question concerning liability remained at the conclusion of trial.

¶ 28. Based on the doctrine of comparative negligence, the Mississippi supreme court has found:

[Njegligence is measured in terms of percentage, and any damages allowed shall be diminished in proportion to amount of negligence attributable to the person for whose injury, damaged or death recovery is sought. Where negligence by both parties is concurrent and contributes to [an] injury, recovery is not barred under such doctrine, but [the] plaintiffs damages are diminished proportionately^] even to the extent that negligence on the part of the plaintiff was ninety percent (90%) and on the part of the defendant was ten percent (10%), the plaintiff would be entitled to recover theoretically that ten percent. Therefore, a plaintiff, though himself negligent, may still recover from a defendant whose negligence contributed to his injuries. Comparative negligence thus diminishes but does not bar recovery.

Wansley v. Brent, 80 So.3d 125, 128 (¶ 12) (Miss.Ct.App.2011) (quoting Burton ex rel. Bradford v. Barnett, 615 So.2d 580, 582 (Miss.1993)). Under this doctrine, a reasonable juror could have diminished the fault of Dunnam in proportion to the amount of negligence attributable to Hope. Therefore, I believe that the trial court failed to adequately instruct the jury.

¶ 24. The relevant traffic law for the instant case is found in Mississippi Code Annotated section 63-3-805 (Rev.2013), which provides:

The driver of a vehicle shall stop as required by this chapter at the entrance to a through highway and shall yield the right-of-way to other vehicles which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute an immediate hazard. However, said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through highway shall yield the right-of-way to the vehicle so proceeding into or across the through highway.
The driver of a vehicle shall likewise stop in obedience to a stop sign as required by this chapter at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through highway and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, but may then proceed.

¶25. It is evident that there was a question as to whether or not Hope’s proximity to the intersection constituted an immediate hazard to Dunnam. The record reflects that Dunnam made a complete stop at the intersection, looked both ways, and cautiously entered the intersection when she determined there was no approaching vehicle. Although she admitted that she was unfamiliar with the intersection and that the angled road obstructed her view from the right side, she entered the intersection with the necessary caution set forth in Mississippi Code Annotated section 63-3-805. However, she did not see Hope’s car until impact.

¶ 26. Hope admitted that she saw Dun-nam as she approached the stop sign and entered the intersection. However, it is not clear from the record whether Hope took any evasive action. Hope testified that the accident occurred so quickly that she was unable to avoid Dunnam. However, Darrin contended that Hope attempted to avoid the accident by turning the wheel. The record reflects that the front center of Hope’s vehicle hit the front passenger side of Dunnam’s vehicle. Therefore, a question remains as to whether or not Hope was acting with the necessary caution in yielding the right-of-way to vehicles proceeding through the intersection.

If a person is adhering to the statutory mandate of [s]ection 63-3-805 when operating a motor vehicle on the roads and highways of this state, that person is engaging in an exercise of common sense. Just because a person may be driving on a through highway with the lawful right-of-way to proceed through an intersection with another road where there are located stop signs, does not mean that person may approach and enter the intersection with impunity and without exercising caution.

Thompson ex rel. Thompson v. Lee Cnty. Seh. Dist., 925 So.2d 57, 71 (¶ 21) (Miss. 2006).

¶ 27. As stated previously, a factual question as to the negligence of both Dun-nam and Hope remained and should have been resolved by the jury. Therefore, I believe the peremptory instructions to the jury were improper. I would reverse the circuit court’s judgment and remand this case for a new trial consistent with the findings of this opinion.

LEE, C.J., BARNES AND JAMES, JOIN THIS OPINION.


author: BARNES, J., for the Court:

text:
    Thomas HOLDER a/k/a Thomas L. Holder, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01004-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.
    Rehearing Denied March 4, 2014.
    Certiorari Denied May 8, 2014.

      Thomas Holder, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   BARNES, J., for the Court:

¶ 1. Thomas Holder pleaded guilty to the fondling of a child. He was sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with credit for time served and the remainder of the sentence to be suspended upon completion of certain conditions, including registration as a sex offender. Holder was also required to reside at least one hundred miles from the Forrest County Courthouse and to pay a $2,500 fine, restitution, and court costs. After it was discovered that Holder had provided an incorrect address on his sex-offender-registry form, his suspended sentence was revoked. Holder filed a motion for post-conviction relief (PCR), which the circuit court denied. On appeal, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 20, 2008, Holder pleaded guilty to fondling in violation of Mississippi Code Annotated section 97-5-23 (Rev.2006). He was sentenced to fifteen years in the custody of the MDOC, with credit for time served and the remainder to be suspended upon compliance with certain conditions. Two of the conditions were: (1) that Holder was to “[immediately register as a sex offender in [the] state and county of his domicile” and any subsequent domicile; and (2) that he was to “[d]epart from Hattiesburg, Mississippi[,] within twenty-four (24) hours of his release from custody and remain outside a radius or distance of one hundred (100) miles from the Forrest County Courthouse situated in Hattiesburg, Mississippi, for the entire period of his suspended sentence.”

¶ 3. Holder, upon release from county jail two days later, informed the probation officer in Forrest County that he was returning to Alcorn County, Mississippi. Holder then traveled to Alcorn County by bus. The following Monday morning, Holder reported to the office of the Alcorn County Sheriffs Department; however, there was no probation officer in the office. Holder was told to return the folio-wing day, and he gave his former address to the woman at the sheriffs department’s office. Holder was allegedly staying in a motel at the time. Holder returned the next day, and upon investigation, it was discovered that he had provided an incorrect address on his sex-offender-registry form. Holder was placed in custody on December 1, 2008, and the State filed a petition to revoke Holder’s sentence, noting that he was in violation of Mississippi Code Annotated section 45-33-33(l)(a) (Rev.2011).

¶ 4. A revocation hearing was held on January 16, 2009, in Forrest County Circuit Court. Holder claimed that at the time he filled out the sex-offender-registry form, he had not been taking his prescribed medication for neuropathy, diabetes, and cholesterol; therefore, he was sick and not “in [his] right mind.” He admitted that he told the sheriffs department the false address was his current address because it “was the only address [he] had.” The State responded that the Alcorn County Sheriffs Department had investigated all the addresses given to them by Holder, and none of them were valid:

Your Honor, it’s our understanding from speaking with Alcorn County Sheriffs Department that [Holder] not only gave the wrong address but when they went to verify the address, he had not lived there for more than three years prior to the time he was arrested in Forrest County.
That he then gave the address of the hotel, and they called and were able to verify that he was, in fact, not living there; someone else lived there and had been living there.
He then told them that he had rented the motel room by the week. They called to verify that. He had only paid up through that day. He had not paid up through the week.
They went back in to find out why he had given the wrong address, and his reasoning was that he didn’t want to tell them he was living in a hotel; that he was aware he no longer lived at that address and that he no longer had an apartment at that address.

The circuit court found that Holder had violated the terms of his suspended sentence, and he was remanded into the custody of the MDOC to serve the remainder of his sentence.

¶ 5. Holder filed a PCR motion on April 12, 2011, alleging: (1) he received ineffective assistance of counsel at his plea hearing, and (2) he should have been provided counsel for his revocation hearing. The circuit court denied the motion, and Holder now appeals. Finding no error, we affirm the circuit court’s denial of the PCR motion.

STANDARD OF REVIEW

¶ 6. “This Court reviews a circuit court’s denial of a PCR motion under the clearly-erroneous standard of review.” Swilley v. State, 93 So.3d 901, 903-04 (¶ 7) (Miss.Ct.App.2012) (citing Holloway v. State, 31 So.3d 656, 657 (¶ 5) (Miss.Ct.App.2010)). Questions of law, however, are reviewed de novo. Id.

DISCUSSION

I. Whether Holder received ineffective assistance of counsel at his plea hearing.

¶ 7. Holder claims that defense counsel should have informed the court that he was mentally and physically disabled and that he was unable to work to pay for the fine and court fees. Specifically, Holder claims that he is “bipolar” and “schizophrenic.” He further alleges that counsel’s failure to inform the court that Holder did not have a legitimate address to return to resulted in prejudice to him. Holder also argues that counsel failed to inform him of the minimum sentence of two years and, had he known of the minimum sentence, he would not have accepted the fifteen-year suspended sentence.

¶ 8. Entry of a guilty plea “waives claims of ineffective assistance of counsel ‘except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea.’ ” Adams v. State, 117 So.3d 674, 677 (¶ 10) (Miss.Ct.App.2013) (quoting Hill v. State, 60 So.3d 824, 827 (¶ 6) (Miss.Ct.App.2011)). In the context of a plea bargain, a claim of ineffective assistance of counsel is governed by the two-part test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):(1) whether counsel’s performance was deficient; and if so, (2) whether the deficiency resulted in prejudice to the defendant. Adams, 117 So.3d at 677 (¶ 10).

¶ 9. Holder provides no evidence, except his own assertions, that he received ineffective assistance of counsel. “[Mjere allegations are insufficient to entitle a defendant to an evidentiary hearing on a post-conviction claim of ineffective assistance of counsel.” Ealey v. State, 967 So.2d 685, 691 (¶ 18) (Miss.Ct.App.2007) (citation omitted). There is nothing to indicate that Holder informed his counsel at the plea hearing that he had no permanent address. Further, while his guilty-plea petition did state that he was bipolar and schizophrenic, he told the circuit court at his hearing that he understood the petition and stated that everything in the petition was true and correct.

¶ 10. In regard to sentencing, the signed petition stated that Holder understood he could be sentenced to a term of “0 years (minimum) to 15 years (maximum).” The State concedes that the minimum sentence stated in the petition is “incorrect.” However, the failure to make a defendant aware of the mandatory minimum sentence at the time of his plea “may be harmless error if the defendant was correctly informed by another source or ‘if [it] appears beyond a reasonable doubt that the plea would have been entered anyway.’ ” Johnson v. State, 39 So.3d 14, 19 (¶ 7) (Miss.Ct.App.2010) (quoting Dockens v. State, 879 So.2d 1072, 1075 (¶ 6) (Miss.Ct.App.2004)). While the minimum sentence is indeed two years rather than zero years, Holder suffered no prejudice from this clerical error on his petition. Holder was informed at the hearing that the State had recommended he receive a fifteen-year suspended sentence. The circuit court asked Holder if he understood “the minimum and maximum sentences that could be enrolled on this plea” and that he could receive up to fifteen years. Holder responded affirmatively. It is not clear from the record whether Holder was informed that the minimum sentence was two years. But since the minimum sentence stated in the petition was actually less than two years, we find nothing to support Holder’s claim that had counsel told him the minimum sentence was two years, rather than zero years, he would not have “accepted” the fifteen-year suspended sentence. It is evident that Holder accepted the plea offered by the State because he knew that it would result in his immediate release from custody.

¶ 11. Thus, Holder has failed to show that, but for counsel’s performance, he would not have entered a voluntary guilty plea. Additionally, Holder told the circuit judge that he was satisfied with his attorney’s services. We find Holder’s claim that his counsel was ineffective at his plea hearing is without merit.

II. Whether the failure to appoint counsel to represent Holder at his revocation hearing violated his state and federal constitutional rights.

¶ 12. Holder argues that he should have been appointed counsel for the hearing regarding the revocation of his probation. However, a defendant does not have a right to counsel at a revocation hearing, unless the circuit court determines that appointment of counsel is necessary because “the issues relevant to the hearing are complex or difficult to develop.” Smith v. State, 94 So.3d 335, 341 (¶ 18) (Miss.Ct.App.2011) (citation omitted). The matter at issue here — whether Holder provided an address that he knew to be false on his sex-offender-registry form — was not complex. Holder admitted that he provided his former address on the form. Furthermore, the State found that Holder gave false information regarding his temporary address at the motel. We fail to see how the presence of counsel would have affected the outcome of the hearing.

¶ 13. Accordingly, we affirm the circuit court’s denial of Holder’s PCR motion.

¶ 14. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.

ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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

      . Mississippi Code Annotated section 45-33-33(l)(a) states:
      The failure of an offender to personally appear at a Department of Public Safety Driver’s License Station or to provide any registration or other information, including, but not limited to, initial registration, reregistration or change of address information, change of employment, change of name or required notification to a volunteer organization, as required by this chapter, is a violation of the law. Additionally, forgery of information or submission of information under false pretenses is also a violation of the law.

      (Emphasis added).

      . Although the original appellate record did not contain transcripts, this Court issued an order on August 21, 2013, requesting a transcript of the revocation hearing. A copy of that transcript and the plea hearing transcript were thereafter provided.


author: ISHEE, J., for the Court:

text:
    Paul HERNANDEZ a/k/a Paul “Tito” Hernandez a/k/a Paul Henandez Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01685-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.
    Rehearing Denied March 18, 2014.
    Certiorari Denied May 8, 2014.

      Office of State Public Defender by George T. Holmes, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   ISHEE, J., for the Court:

¶ 1. On September 20, 2012, Paul Hernandez was convicted by a jury in the Harrison County Circuit Court of two counts of statutory rape. He was sentenced to twenty years on each count, with twenty years suspended and five years to serve on probation, all in the custody of the Mississippi Department of Corrections (MDOC). Hernandez filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The motion was denied. Aggrieved, Hernandez appeals.

STATEMENT OF FACTS

¶ 2. In February or March of 2007, Hernandez, his wife, Jennifer, and their children moved from New Mexico to Saucier, Mississippi. Initially, the Hernandez family moved into the home of Jennifer’s father and stepmother, where they resided with Jennifer’s half sister, S.H. S.H., born on July 1, 1992, was fourteen years old at the time. Hernandez, born December 6, 1967, was thirty-eight years old.

¶ 3. Soon after the family’s move, a relationship evolved between Hernandez and S.H. S.H. became infatuated with Hernandez and, according to her, they frequently conversed via text message, laid in bed together, and even kissed. In May 2007, the Hernandez family moved into a nearby camper, and S.H. began to visit them regularly. It was then, S.H. testified, that she and Hernandez “engaged in intercourse” for the first time.

¶ 4. During the summer of 2007, Hernandez moved with his wife to a larger trailer but continued his relationship with S.H. S.H. stated that she and Hernandez would engage in sexual activity whenever the opportunity presented itself. At times, the activity occurred while Jennifer was away at work, during the weekdays, on the weekends, or whenever others were not present. S.H. also maintained, though, that sexual intercourse even occurred in the presence of others while they were sleeping. S.H. stated that Hernandez told her that he would one day leave Jennifer for her.

¶ 5. The sexual affair continued until S.H.’s senior year of high school in May 2010. S.H. asserted that the couple mutually agreed to end the relationship. In August 2010, S.H. reported the relationship to the Harrison County Sheriffs Office. S.H. believed that she had been taken advantage of by Hernandez. S.H. provided investigators with details of their sexual relationship, including nearly 300 intimate photographs of the couple that had been taken by S.H. and downloaded on compact discs by Hernandez. Subsequently, Hernandez was arrested.

¶ 6. In March 2011, Hernandez was in-dieted by a grand jury on six counts, including multiple counts of statutory rape, sexual battery, and touching of a child for lustful purposes. On May 15, 2012, Hernandez filed a motion to dismiss the charges of statutory rape, alleging that the statute of limitations had run. Hernandez argued that while rape is one of the crimes exempt from the statute of limitations, statutory rape is not; therefore, the statute of limitations for S.H.’s allegations had run. The circuit court denied the motion.

¶ 7. A trial took place from September 18-20, 2012. Hernandez was convicted by a jury of two counts of statutory rape and was sentenced to twenty years on each count, with twenty years suspended and five years of probation. He filed a motion for a JNOY or, in the alternative, a new trial, which was denied. Hernandez now appeals, arguing: (1) the circuit court erred by refusing to dismiss the counts of statutory rape based on the expiration of the statute of limitations; and (2) the jury’s verdict was against the sufficiency and weight of the evidence.

DISCUSSION

I. Motion to Dismiss

¶ 8. In reviewing a grant or denial of a motion to dismiss, this Court applies a de novo standard of review. Spencer v. State, 880 So.2d 1044, 1045 (¶6) (Miss. 2004) (citation omitted). Hernandez argues that the circuit court erred by denying his motion to dismiss, because the statutory-rape charges were barred by the statute of limitations set forth in Mississippi Code Annotated section 99-1-5 (Supp.2013). Section 99-1-5 states in pertinent part: “[t]he passage of time shall never bar prosecution against any person for the offense[ ] of ... rape.... A person shall not be prosecuted for any other offense not listed in this section unless the prosecution for the offense is commenced within two (2) years next after the commission thereof.”

¶ 9. Hernandez asserts that while the crime of rape is excluded from the two-year general statute of limitations, the crime of statutory rape is not. Therefore, Hernandez contends that his prosecution was barred by the statute of limitations because more than two years had passed since the offense was committed before the indictment, which charged Hernandez with statutory rape that allegedly occurred in May 2007 and April 2008, was issued. Further, more than two years had passed since the date of the offense before an arrest warrant was issued in August 2010.

¶ 10. The State points to the circuit court’s reasoning as to why statutory rape is considered to be included in the offenses excepted from the general statute of limitations. The circuit court found that since Mississippi Code Annotated section 97-3-68 (Rev.2006) specifically includes statutory rape as rape, then the crime of statutory rape falls within the definition of rape as used in Mississippi Code Annotated section 99-1-5.

¶ 11. This Court has addressed the issue of whether statutory rape is considered rape for the purposes of the general statute of limitations. Dawkins v. State, 919 So.2d 92, 98 n. 5 (Miss.Ct.App.2005). In Dawkins, the appellant argued, as Hernandez does, that his prosecution was barred by a two-year statute of limitations, as set forth in Mississippi Code Annotated section 99-1-5. Dawkins, 919 So.2d at 98 n. 5. In reviewing the relevant statute, this Court found that “[r]ape ... is expressly excluded!,] • • • [and][b]y necessity, statutory rape is included within this exception.” Id.

¶ 12. Although statutory rape is not expressly included in the statute, it is within the definition of rape for purposes of the exceptions to the general two-year statute of limitations. Because the statute of limitations had not run on the charges of statutory rape, the circuit court did not err by denying Hernandez’s motion to dismiss. Accordingly, we find this issue without merit.

II. Sufficiency of the Evidence and Weight of the Evidence

¶ 13. A motion for a JNOV challenges the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citing Carr v. State, 208 So.2d 886, 889 (Miss.1968)). In order for the evidence to be found sufficient to sustain a conviction, the evidence must show “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed!.]” Id. This Court will reverse a conviction only if the evidence “point[s] in favor of the defendant on any element- of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 14. Hernandez was convicted under Mississippi Code Annotated section 97-3-65(l)(a) (Supp.2013), which provides:

The crime of statutory rape is committed when: Any person seventeen (17) years of age or older has sexual intercourse with a child who: (i) Is at least fourteen (14) but under sixteen (16) years of age; (ii) Is thirty-six (36) or more months younger than the person; and (iii) Is not the person’s spouse[.]

Hernandez argues that S.H. was inconsistent in her testimony about her age and the date on which the alleged sexual activity occurred. Further, he maintains that the testimony of S.H. was uncorroborated, and, therefore, insufficient to support his conviction. Hernandez contends that the only arguable corroboration of S.H.’s testimony was the photographic evidence introduced at trial. Hernandez asserts, however, that the photographs were not dated and, thus, were unreliable. Further, he alleges, based on the testimony of his wife, that the photographs were made after S.H. had reached sixteen years old, the legal age of consent.

¶ 15. S.H. testified that even though the sexual affair continued after she reached the legal age of consent, she was fourteen years old when she first had sexual intercourse with Hernandez. Captain Carl Rhodes, the investigating officer with the Harrison County Sheriffs Office, corroborated this testimony when he testified that S.H. informed him in August 2010 that she had been sexually assaulted by her brother-in-law when she was fourteen or fifteen years old.

¶ 16. Captain Rhodes also testified that S.H. provided him with compact discs containing sexually explicit photographs of her and the defendant. Captain Rhodes stated that there were “about 300 pictures” that spanned an extended two- to three-year period. He found, through an examination of the compact discs, that some of the sexually explicit photographs had been made prior to July 1, 2008, the date upon which S.H. would have reached sixteen years of age.

¶ 17. Viewing the evidence in the light most favorable to the State, we find the evidence was sufficient to prove that Hernandez had committed statutory rape. The testimony of S.H. and Captain Rhodes, along with the nearly 800 photographs depicting explicit sexual activity, provides evidence that Hernandez had engaged in sexual intercourse with S.H., who at the time was not his spouse and was at least fourteen years old but under sixteen years old and thirty-six months younger than him. Further, “[a]n individual may be found guilty of rape on the uncorroborated testimony of the prosecuting witness, where the testimony is not discredited or contradicted by other credible evidence.” Parramore v. State, 5 So.3d 1074, 1077-78 (¶ 12) (Miss.2009). We find there was sufficient evidence for any rational juror to find, beyond a reasonable doubt, that Hernandez was guilty of statutory rape.

¶ 18. In contrast to a motion for a JNOV, a motion for a new trial challenges the weight of the evidence. A jury’s verdict will not be disturbed unless “it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

¶ 19. Hernandez argues that the verdict was against the great weight of the evidence. He contends that, along with S.H.’s contradictory testimony, her allegation that the two had engaged in sexual intercourse while others were asleep in the same room is incredulous. As previously stated, S.H.’s testimony was corroborated by the testimony of Captain Rhodes. Further, physical evidence was presented in the form of photographs depicting intimate and sexual activity occurring between Hernandez and S.H. It is well settled that “the jury is the final arbiter of a witness’s credibility.” Collins v. State, 97 So.3d 1247, 1251 (¶ 14) (Miss.Ct.App.2012) (quoting Morgan v. State, 681 So.2d 82, 93 (Miss.1996)). Therefore, it was the jury’s role to determine whether or not S.H.’s allegations were true.

¶ 20. We cannot find that the verdict was against the overwhelming weight of the evidence. Accordingly, we find that the circuit court did not abuse its discretion in denying Hernandez’s motion for a JNOV or, in the alternative, a new trial. This issue is without merit.

¶ 21. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF TWO COUNTS OF STATUTORY RAPE AND SENTENCE OF TWENTY YEARS FOR EACH COUNT, WITH TWENTY YEARS SUSPENDED AND FIVE YEARS OF PROBATION, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A $5,000 FINE AND $300 TO THE CRIME VICTIMS’ COMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . This Court declines to identify minor victims in child-sexual-abuse cases. To protect the child’s confidentiality, we will refer to her throughout this opinion as S.H.