author: KITCHENS, JUSTICE,

text:
    Brandon SMITH and Kimberly Wolfe Smith v. Milton MARTIN and Geneva Martin
    NO. 2014-CT-00040-SCT
    Supreme Court of Mississippi.
    04/20/2017
    Rehearing Denied August 2, 2017

      YAZOO ' COUNTY CHANCERY COURT, JANACE H. GOREE, J.
    ATTORNEYS FOR APPELLANTS: GEORGE S. WHITTEN, JR., TOM P. CALHOUN, III
    ATTORNEYS FOR APPELLEES: JAMES H. POWELL, III, SABRINA D. HOWELL
   ON WRIT OF CERTIORARI

KITCHENS, JUSTICE,

FOR THE COURT:

¶ 1. Milton • and Geneva Martin sought grandparent visitation with their two grandsons after they were denied visitation by Kimberly and Brandon Smith, the children’s biological mother and adoptive father. Marty Martin, the children’s father and the Martins’ son, is deceased. The Chancery Court of Yazoo County granted grandparent visitation to the Martins, the Smiths appealed, and the case was assigned to the Mississippi Court of Appeals, which affirmed. We granted the Smiths’ petition for a writ of certiorari. We affirm the judgment of the Mississippi Court of Appeals and the judgment of the Chancery Court of Yazoo County.

FACTS AND PROCEDURAL HISTORY

¶ 2. The following facts are taken, verbatim, from the decision of the Mississippi Court of Appeals:

Kimberly and Marty Martin married in 1996 and divorced in 2003. . The couple had two minor children. The couple’s first son, Cliff, was born in 2001. Their second son, Hank, was born in 2004 after the entry of the divorce decree. Kimberly received physical custody of the two children, and Marty received visitation supervised by his parents, the Martins.
On February 8, 2008, Marty committed suicide. His body was discovered at his home on the Martins’ property while the two children were present for their visitation with him. Marty’s mother, Geneva, testified that the children never saw their father’s body but viewed the emergency personnel who responded to the situation. Following Marty’s death, Kimberly allowed the Martins to continue visitation with the children as they had prior to Marty’s death. The Martins’ visitation included weekend visits, overnight visits, and a week of visitation around Christmas, At one point, -Kimberly was hospitalized after she suffered a nervous breakdown. During this time, the Martins provided full-time care for at least one of Kimberly’s children while Kimberly recovered.
On May 17, 2008, Kimberly married Brandon [Smith]. In 2010, Brandon adopted Kimberly’s children. Following an incident on January 2, 2011, Kimberly and Brandon discontinued the Martins’ visitation with the two minor children. Geneva and Kimberly both testified about the incident on January 2, 2011. The women both testified that the two children were visiting the Martins when Hank became ill. Geneva and Kimberly arranged to meet so that Hank could return home. Kimberly decided that Cliff should return home at the same time.
Geneva testified that, upon learning that he had to go home early, Cliff grew upset and began to cry. Geneva further testified that, upon arriving at the exchange location, she instructed the children to get inside Kimiberly’s car while she spoke to Kimberly. Geneva told Kimberly- that Cliff -had accused Brandon of the following: being mean to Cliff, telling Cliff he was overweight and needed Jenny Craig, and pulling Cliffs hair and arms until they hurt.
At this point in the story, the two women’s accounts of events differed. According to Kimberly, during the conversation, Geneva would sob hysterically, compose herself, and then continue sobbing. Kimberly testified that Cliff, who witnessed the women’s conversation from inside Kimberly’s car, jumped from Kimberly’s car, ran to Geneva’s car, and locked himself inside. Kimberly further testified that, as he ran toward Geneva’s car, Cliff yelled, “You were right, Grandmother. My life would be better if I just lived with you and went to school at Carroll Academy.”
Geneva, however, disputed Kimberly’s version of events. According to Geneva’s testimony, she and Kimberly both remained composed during the conversation. Geneva admitted that, when Kimberly raised her voice at one point during the conversation, Cliff exited Kimberly’s car, hugged Geneva, and then ran to Geneva’s car. Geneva testified, though, that Cliff never yelled anything as he ran to her car and that he never locked himself inside her car.
On redirect, Kimberly testified that Cliff remained upset the entire drive home after the events on January 2, 2011. Even after arriving home, Kimberly stated that Cliff remained inconsolable. During her redirect, Kimberly testified as follows:
[Cliff] was hysterically telling me that I had lied to him, that his grandmother had told him I had lied to him his whole life; that I had divorced his daddy for no good reason, taken him away from [Marty]; [that Marty] got sadder and sadder, sicker and sicker until he died. That Brandon would never be his daddy, Brandon didn’t love him; that Grandmother said [Brandon] would never love him because he wasn’t [Brandon’s] real child, [the adoption] was just a piece of paper; [Brandon] had no right to discipline him. He kept on and on telling me that I had lied to him, I had lied to him his whole life about this divorce. He told Brandon his grandmother said she would hire an attorney and sue us to have his name changed back to Martin.
Because Cliff remained inconsolable and refused to believe anything they told him, the Smiths asked other family members to explain to Cliff the kind of man his father, Marty, had been and to explain why Kimberly had divorced Marty. The Smiths testified that they were reluctant to take this course of action but believed it was the only way to help Cliff calm down. During a proffer, Kimberly testified that she, Brandon, her two older sons, her mother, and her aunt all spoke to Cliff. The family members explained to Cliff that Marty had. experienced an ongoing drug problem; Marty had beaten Kimberly; and Kimberly had divorced Marty because she was afraid for her safety and Cliffs safety. During her direct examination, Kimberly testified that Cliff eventually calmed down after speaking to the other family members. However, because she and Brandon remained concerned, they made an appointment for a psychologist to evaluate Cliff and Hank.
Kimberly further testified that she ended the Martins’ visitation with the children due in part to the events on January 2, 2011. Kimberly testified that she and Brandon also ended the visitation because they had observed a change in the children’s behavior following their visits with the Martins. According to Kimberly, the children acted more aggressively and disrespectfully after visiting the Martins. Both Kimberly and Brandon testified that Cliff even attempted to shoot Brandon with a BB gun in July 2010. Due to the cumulative effect of these incidents, the Smiths decided it was in the children’s best interests to deny the Martins further visitation.
On August 3, 2011, the Martins filed a petition for grandparent visitation pursuant to Mississippi Code Annotated section 93-16-3(2) (Rev. 2013). On August 9, 2011, the Martins filed a motion for temporary visitation. Following a hearing on the Martins’ motion for temporary visitation, the chancellor entered an order granting temporary visitation. The chancellor’s order granted the Martins telephone visitation up to two times a week between 5:30 p.m. and 9 p.m. In addition, the chancellor granted the Martins physical visitation with the children for five hours on December 28, 2011, which was to be supervised by a mutual friend of the parties.
On May 16, 2013, following a two-day hearing, the chancellor entered an order finding that the Martins were entitled to visitation under Mississippi Code Annotated [Slection 93-16-3(1) (Rev. 2013). Because the Martins filed then- petition under [SJection 93-16-3(2) [ (Rev. 2013) ], however, the chancellor also discussed whether the Martins satisfied the criteria for grandparent visitation under that subsection of the statute. The chancellor determined that an award of grandparent visitation was also appropriate under [S]ection 93-16-3(2) since the Martins established the following: (1) a viable relationship existed with the children; (2) the Smiths unreasonably denied visitation; and (3) visitation was in the children’s best interests. See Miss. Code Ann. § 93-16-3(2). Although the Smiths testified that they denied visitation for behavior-related reasons, the chancellor found no causal connection between the children’s behavior and their visits with the Martins.
After determining that the Martins were entitled to visitation under both section 93-16-3(1) and section 93-16-3(2), the chancellor considered the Martin factors. After considering the factors, the chancellor found: (1) limited visitation would not be too disruptive to the children’s lives; (2) the Martins’ activities posed no barrier to their ability to provide a suitable home with sufficient supervision when the children visited; (3) the children were ages eleven and nine at the time of the hearing; (4) the Martins, both in their sixties, appeared to be in good health at the time of the hearing even though Geneva had suffered a nervous breakdown after Marty’s suicide and Milton had experienced stress due to his son’s death and Geneva’s breakdown; (5) strong emotional ties existed between the Martins and the children; (6) no evidence was offered to prove that the Martins were morally unfit to have a relationship with the children; (7) the Martins’ home in Carroll County was not too far from the Smiths’ home in Yazoo County; (8) although the Smiths alleged that the Martins undermined their general discipline of the children, they failed to offer any evidence to substantiate their claims; (9) the Martins’ employment responsibilities would not interfere with visitation; and (10) the Martins testified that they were willing to accept that rearing the children was the Smiths’ responsibility, and they testified that they would do nothing to interfere with that.
The chancellor concluded that it was in the children’s best interests to award grandparent-visitation rights to the Martins. The chancellor therefore granted the Martins visitation with the children on the third weekend of every month. The chancellor also ordered the Smiths, the Martins, and the children to attend family counseling to facilitate a smooth visitation experience between the Martins and the children. In addition, the chancellor ordered that the family counseling would continue until the counselor determined the need for counseling no longer existed.
Following the chancellor’s order, the Smiths filed an unsuccessful motion for a new trial. The Smiths asserted in their motion that the chancellor had erroneously excluded evidence and conducted the hearing in a manner pervasively prejudicial to them. Aggrieved by the chancellor’s grant of visitation and denial of their new-trial motion, the Smiths appeal.

Smith v. Martin, 202 So.3d 263, 265-68 (Miss. Ct. App. 2016).

¶ 3. The Court of Appeals affirmed. We granted certiorari to clarify the applicable standards in light of the Smiths’ argument that the chancellor applied an erroneous legal standard by requiring them to satisfy a heightened burden of proof.

STANDARD OF REVIEW

¶ 4. “Findings of a chancellor will not be disturbed on review unless the chancellor was ‘manifestly wrong, clearly erroneous, or applied the wrong legal standard.’” Heiter v. Heiter, 192 So.3d 992, 994 (Miss. 2016) (quoting Powell v. Campbell, 912 So.2d 978, 981 (Miss. 2006)).

DISCUSSION

¶ 5. Mississippi Code Section 93-16-3 provides, in pertinent part, the following:

(1) Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child’s parents may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in'which the child resides, and seek visitation rights with the child.
(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:
(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and
(b) That visitation rights of the grandparent with the child would be in the best interests of the child.
(3) For purposes of subsection (2) of this section, the term “viable relationship” means a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child, the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year, or the child has been cared for by the grandparents or either of them over a significant period of time during -the time the parent has been in jail -or on military duty that necessitates the absence of the parent from the home.

Miss. Code Ann. § 93-16-3(1), (2), (3) (Rev. 2013).

¶ 6. This Court has established the following factors for consideration by the chancery court in determining grandparent visitation, no one factor, being “weighed more heavily than the others:”

1. The' amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home . for extensive lengths of time.
2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child.
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents’ home from the child’s home.
8. , Any undermining of the parent’s general discipline of the child.
9. Employment.' of the grandparents and the responsibilities associated with that employment.
10. The willingness' of the grandparents to accept that the rearing of the child is the responsibility- of the parent, .and that the parent’s manner of child rearing is not to be interfered with by the- grandparents.

Martin v. Coop, 693 So.2d 912, 916 (Miss. 1997). The Court clarified that “[t]hese factors are ... not all-inclusive” and that “[t]he chancellor should weigh all circumstances-and factors he feels to be appropriate.” Id.

¶7. The chancellor carefully analyzed Sections 93-16-3(1) and'(2) and each Martin factor in her written order granting grandparent visitation rights to the Martins. On certiorari, the Smiths, however, take issue with various statements made by the chancellor at the hearing, which, they claim, indicate that the chancellor misunderstood that the grandparents bear the burden of proof and that she expected the Smiths (the parents) to prove that grandparent visitation was not in the children’s best interests.

¶ 8. The chancellor stated the following during Smiths’ lawyer’s cross examination of Milton Martin:

Okay. Now I’m giving you-all some latitude here, a lot. But for you to, but I need you to' tie this together. Now it wouldn’t take a rocket scientist to realize that these people having .lost a son due to suicide is gone [sic] be stressed out some. But unless you can show me how it’s going to make them incapable of exercising'grandparent visitation it’s a waste of my time.

The colloquy.with the Smiths’ lawyer continued:

THE COURT: And you-all don’t have but one day here and maybe we need to come together and see if one day is enough time, because you haven’t gotten finished with the first two witnesses and I don’t know how many more you have. But this line of questioning, and I’ve allowed you tó spend a good bit of time, but the question, you know, to say that they were not emotionally and even the children ought to be emotionally affected by the loss of their father. I mean this is life. But, you know, you got to show me that it interferes with their ability to be grandparents and have grandparent visitation.
MR. CALHOUN: Well Your Honor the relevancy we see is one of the Martin v. Coop—one of the primary factors we say is the mental health of the grandparents here. And so we’re exploring that.
THE COURT: That’s why I’m giving you some latitude. But I’m just explaining to you that I’m about to— you’re getting near to the end of my patience because I want it to tie together to whether they are incapable of visiting with the children because of some emotional problem that they have, mental problem that they have.

During the Smiths’ counsel’s direct examination of Kimberly Smith, the chancellor stated: “We’re going to finish this trial today and .I’m going to hear those things that will give me something for a basis for which I could say either these people pose a threat to the child, these children visitation, now or that they don’t.” She continued: “I want to hear what will help me make a decision, today as to whether- these people [the Martins] pose a threat to these children.”

¶ 9. The Smiths urge in their petition for writ of certiorari that the chancellor’s statements conflict with Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In that case, the United States Supreme Court affirmed a judgment of the Washington Supreme Court invalidating a state statute which provided that “ ‘[a]ny person may petition the court for visitation rights at any time including, but not limited to, custody proceedings.’ ” Troxel, 530 U.S. at 61, 75, 120 S.Ct. 2054.

¶ 10. The mother of two children had restricted the children’s paternal grandparents’ visitation to “one short visit per month” following' the father’s suicide. Id. at 60-61, 120 S.Ct. 2054. The grandparents sought visitation pursuant to the visitation statute, and the Washington Superior Court for Skagit County granted their petition, finding grandparent visitation to be in the best interests 'of the children. Id. at 61-62, 120 S.Ct. 2054. The Washington Supreme Court reversed, finding- that the statute “unconstitutionally infringes on the fundamental right of parents to rear their children.” Id. at 63, 120 S.Ct. 2054. A majority of the United States Supreme Court agreed that the judgment of the Washington Supreme Court should be affirmed. Id. at 75-79, 120 S.Ct. 2054.

¶ 11. A plurality of the United States Supreme Court noted that the superior court had given “no special weight at all to [the mother’s] determination of her daughters’ best interests” and that “it appears that the Superior Court applied exactly the opposite presumption.” Id. at 69, 120 S.Ct. 2054. The superior court had stated that:

The burden is to show that it is in. the best interest of the children to have some visitation and some quality time with their grandparents. I think in most situations a commonsensical approach [is that] it is normally in the best interest of the children to spend quality time with the grandparent, unless the grandparent, [sic] there are some issues or problems involved wherein the grandparents, their lifestyles are going to impact adversely upon the children. That certainly isn’t the case here from what I can tell.

Id. According to the plurality, the judge had said that he had not ‘“been shown [that visitation] is not in [the] best interest of the children.’” Id. The plurality observed that “[t]he judge’s comments suggest that he presumed the grandparent’s request should be granted unless the children would be ‘impact[ed] adversely.’ In effect, the judge placed on [the mother], the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters.” Id.

¶ 12. In their petition for a writ of certio-rari, the Smiths compare the statements of the chancellor in this case to those of the trial judge in Troxek

[T]o compound her error of placing the burden of proof upon the parents, the chancellor demanded that the parents’ evidence surpass merely disproving that grandparent visitation would be in the best interests of the children, and that their evidence meet a higher standard of proving that the grandparents either were incapable of hosting the children for visits or would pose a threat to the children.

The Smiths correctly relate that the chancellor informed their lawyer at the hearing that he had to show that the Martins were “incapable of exercising grandparent visitation,” that their son’s death “interfered] with their ability to be grandparents and have grandparent visitation,” and that “they are incapable of visiting with the children because of some emotional problem that they have, mental problem that they have.” The chancellor also challenged the parents’ attorney to adduce testimony that would enable her “to hear what will help me make a. decision today as to whether these people [the Martins] pose a threat to these children.” The chancellor further said to the Smiths’ lawyer, “I want to hear if there’s any reason for which I ought not to allow these grandparents to visit.” When the Smiths’ counsel was questioning the children’s mother, the chancellor stated that “hopefully the questions that you’re going to ask her is going to line up with the burden of proof that have to be, the specific codes require your proof to engender and support.”

¶ 13. In Martin v. Coop, the chancellor had granted visitation rights to paternal grandparents whose son, the child’s father, was deceased. Martin, 693 So.2d at 914. This Court held that because the chancellor had “found that under [Section 93-16-3(1) ] the petitioners are in fact the grandparents of Jesse and that their son is deceased” and therefore, “all the proof necessary under § 93-16-3(1) was present and ... the grandparents should be awarded visitation.” Id. Likewise here, the chancellor found that the Martins were the grandparents of Cliff and Hank, and the Martin’s son, the father of Cliff and Hank, is deceased. Under the Martin analysis, therefore, the Martins in this case are entitled to grandparent visitation rights and the chancellor needed only apply the Martin factors in order to “determine the amount of visitation that grandparents should be granted in this situation .... ” Id. at 916 (emphasis added). The chancellor in the present case, once determining that grandparent visitation was appropriate under Sections 93-16-3(1) and (2), applied the Martin factors to “determine the appropriate visitations that the grandparents should exercise with their grandchildren.”

¶ 14. As the Smiths argue, the Martin Court did not take into account Mississippi Code Section 93-16-6, which states that the chancery court “may, in its discretion, if it finds that such visitation rights would be in the best interest of the child, grant to a grandparent reasonable visitation rights with the child.” Miss. Code Ann. § 93-16-5 (Rev. 2013). Section 93-16-5 obligates the chancellor to consider the best interest of the children), even if the statutory elements of Section 93-16-3(1) are met. This Court has held that “[n]atural grandparents have no common-law ‘right’ of visitation with their grandchildren. Such right must come from a legislative enactment.” Settle v. Galloway, 682 So.2d 1032, 1035 (Miss. 1996) (citing Matter of Adoption of a Minor, 558 So.2d 854, 856 (Miss. 1990)). “Although the Mississippi Legislature created this right by enacting § 93-16-3, it is clear that natural grandparents do not have a right to visit their grandchildren that is as comprehensive to the rights of a parent.” Settle, 682 So.2d at 1035.

¶ 15. The Martin Court erred by instructing chancellors to consider the best interest of the children) only in the context of the amount of visitation, after finding an entitlement to grandparent visitation under Section 93-16-3(1). See Martin, 693 So.2d at 916 (“The chancellor in this case found that under [Section 93-16-3(1) ] the petitioners are in fact the grandparents of [the child] and that their son is deceased. Thus, all the proof necessary under § 93-16-3(1) was present and, therefore, the grandparents should be awarded visitation.”) The Martin Court ignored the requirement of Section 93-16-5 that the best interest of the child(ren) be considered in determining the grandparents’ entitlement to grandparent visitation rights. The Martin Court stated the following: “In determining the amount of visitation that grandparents should be granted in this situation, some guidelines by this Court may be helpful. As always, the best interest -of the child must be the polestar consideration.” Id. (emphasis added). But, under Section 93-16-5, the best interest of the children) must be considered, even if Section 93-16-3(1) is found to apply, since Section 93-16-3(1) states that “either parent of the child’s parent may petition the court ... and seek visitation rights with the child.” Miss. Code Ann. § 93-16-3(1) (emphasis added). Section 93-16-3(1) only permits the grandparents to seek visitation; it does not entitle, them to receive it.

¶ 16. We have reversed a chancellor’s award of grandparent visitation where “[t]here is no indication from the chancellor’s statement, or anywhere else in the record, that the best interests of [the child] were considered by the chancellor in making her decision.” Morgan v. West, 812 So.2d 987, 992 (Miss. 2002). This Court observed that the,chancellor appeared to have been “more concerned with the best interests” of the grandmother because she found:

“from prior testimony and testimony presented today that this grandmother was relied upon during the hard times, and at the present time the parents want to push her aside and treat her as an outsider. It is obvious to the -Court they want to . break the relationship between the grandchild and the grandmother .... ”

Id.

¶17. The Mississippi Court of Appeals likewise has reversed a chancellor’s award of grandparent visitation, noting that “the Legislature has outlined the steps a grandparent should take to pursue visitation” and that “because the child’s best interest is the fundamental concern, a chancellor must review all relevant factors as outlined in Martin before granting grandparent visitation.” Givens v. Nicholson, 878 So.2d 1073, 1077 (Miss. Ct. App. 2004).

¶ 18. We clarify that, under Section 93-16-3(1), the chancellor’s consideration of the child’s or children’s best interest is not limited to the determination of the amount of visitation, but must be considered in determining whether the grandparents should receive visitation in 'the first place. The Smiths contend that the chancellor’s statements at the hearing indicate that she expected the Smiths,,in order, for them to prevail, to prove that the mental and emotional health of the Martins rendered them incapable of exercising grandparent. visitation and that the Martins posed a threat to Cliff and Hank. But our review of the record leads us to conclude that the chancellor carefully analyzed Sections 93-16-3(1) and (2) and scrupulously weighed each Martin factor, thereby performing the correct analytical process and properly applying the right procedural, ev-identiary, and statutory principles. This process led her to a fair and just resolution of a difficult and emotionál cáse. The present'case greatly differs from'those in which this Court has deemed reversal the only appropriate remedy. See Morgan, 812 So.2d at 992 (This Court reversed because the chancellor had not considered the best interest of the child at all and “the chancellor did not articulate her findings regarding the Martin factors ..,.”) Here, we can identify no manifest error which would warrant reversal, and the record before us is clear that the paramount consideration supporting the chancellor’s decision was the best interest of the children.

CONCLUSION

¶ 19. Finding no manifest error in the chancellor’s grant of grandparent visitation rights to the Martins, we affirm the judgment of the Mississippi Court of Appeals and the judgment of the Chancery Court of Yazoo County.

¶ 20. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

      . In reference to the minor children, we apply the pseudonyms employed by the parties, as did the Mississippi Court of Appeals. We refer to the eldest son, of Marty and Kimberly as Cliff, and we refer to the youngest son of Marty and Kimberly as Hank.

      . Martin v. Coop, 693 So.2d 912, 916 (Miss. 1997).

      . The plurality opinion was authored by Justice O'Connor and was joined by Chief Justice Rehnquist, Justice Ginsburg, and Justice Breyer. Justice Souter concurred in the judgment, writing that he agreed with "affirming the decision'of the Supreme Court of Washington, whose facial invalidation of its own state statute is consistent with this Court’s prior cases addressing the substantive issue at stake,” but that he "would say no more.” Troxel, 530 U.S. at 75, 120 S.Ct. 2054 (Souter, J., concurring in the judgment). Justice Thomas also concurred in the judgment, writing .that he agreed "with the plurality that this Court’s recognition of a fundamental right of parents to direct the upbringing of their children resolves this case,” but would have added that he "would apply strict scrutiny to infringement of fundamental rights” and that the State of Washington "lacks even a legitimate governmental interest—to say nothing of a compelling one—in second guessing a fit parent's decision regarding visitation with third parties.” Troxel, 530 U.S. at 80, 120 S.Ct. 2054 (Thomas, J., dissenting). Justices Stevens, Scalia, and Kennedy filed dissenting opinions.

      . The chancellor noted that she was ‘‘aware that if subsection (1) of the Miss. Code Ann. 93-16-3(1) applies, then subsection (2) need not be considered in determining whether the Martins have a right to petition for grandparent visitations,” but that “since the Martins petitioned the court to proceed under subsection (2) of the Grandparent's visitation statute, this court will address that subsection (2) in its opinion.” She found both that the Martins had established a viable relationship with Cliff and Hank and that visitation with the grandparents was in the best interest of both children.


source: Caselaw Access Project

author: WALLER, CHIEF JUSTICE, COLEMAN, JUSTICE, KING, JUSTICE,

license: Public Domain

text:
    Dillon WILLIAMS a/k/a Dillon D. Williams a/k/a Dillon Dewayne Williams a/k/a Dillion Williams a/k/a Dillion Dewayne Williams v. STATE of Mississippi
    NO. 2014-CT-01170-SCT
    Supreme Court of Mississippi.
    05/11/2017
    MARSHALL COUNTY CIRCUIT COURT, ROBERT WILLIAM ELLIOTT, J.

      ATTORNEYS FOR APPELLANT: DAVID G. HILL, TIFFANY LEIGH KILPATRICK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS
   ON WRIT OF CERTIORARI

WALLER, CHIEF JUSTICE,

FOR THE COURT:

¶ 1. Dillon Williams pleaded guilty to burglary and aggravated assault, and the Marshall County Circuit Court sentenced him to twenty years’ imprisonment for the aggravated assault and twenty-five years’ imprisonment for the burglary. In addition, pursuant to Mississippi Code Section 99-19-355, the circuit court applied a twenty-year enhancement to the aggravated-assault charge because Williams’s victim was an elderly woman. Dillon filed a petition for post-conviction relief (PCR) in which he contends that he was deprived of his right to be sentenced by a jury to the twenty-year enhancement. We hold that Williams waived his right to sentencing by a jury when he pleaded guilty. Accordingly, his claims have no merit. We affirm the judgment of the trial court that denied Williams’s request for post-conviction relief, and we the affirm the judgment of the Court of Appeals. See Williams v. State, 218 So.3d 1190, 2016 WL 1117659 (Miss. Ct. App. March 22, 2016).

I. Williams’s petition has no merit, because he waived his right to a jury at sentencing by knowingly and intelligently entering a plea of guilty.

¶ 2. As noted above, Williams pleaded guilty. In the instant petition for post-conviction relief, he contends that the trial court erred in failing to convene a jury for purposes of sentencing him to the twenty-year enhancement codified in Mississippi Code Section 99-19-355, which provides, in pertinent part:

(1) Upon conviction or adjudication of guilt of a defendant where notice has been duly given that an enhanced penalty will be sought ..., the court shall conduct a separate sentencing proceeding to determine the sentence. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable.... If trial by jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose. If the defendant enters a plea of guilty and waives trial by jury for the sentencing proceeding, the sentencing proceeding shall be conducted before the trial judge sitting without a jury. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence....
(2) In order to impose an enhanced penalty under the provisions of Sections 99-19-351 through 99-19-357, the jury must find beyond a reasonable doubt:
(a) That the defendant perceived, knew, or had reasonable grounds to know or perceive that the victim was within the class delineated; and
(b) That the defendant maliciously and with specific intent committed the offense to any victim who is sixty-five (65) years of age or older or who is disabled as- described in 42 USCS 12102.

Miss. Code Ann. § 99-19-355 (Rev. 2015). Williams’s contention that the trial judge erred in denying him a jury at sentencing is wholly without merit, as he explicitly waived a jury and admitted to the facts necessary to prove the enhancement.

¶ 3. The grand jury included the Section 99-19-355 enhancement in the indictment against Williams. See Miss. Code Ann. § 99-19-351 (Rev. 2015). According to Williams’s Plea of Guilty, entered by the trial court on November 10, 2010, Williams pleaded guilty not only to the burglary charge but also to the Section 99-19-355 enhancement. During the plea colloquy, the trial judge said the following:

Q. ... If I accept your plea, it’s with the understanding that you are telling me that you are guilty under your oath and that gives me the power and the authority to sentence you to the maximum penalty or anything less. Whatever I think you deserve and your crime warrants. ... Now, before you could be found guilty, the State would have to prove each and every element of the indictment or the information. ... [T]he State has got to prove what they have got you charged with by competent relevant evidence and as I said it must be a unanimous verdict before you can be found guilty....

(Emphasis added.) The State charged Williams with the Section 99-19-355 enhancement in the indictment. Therefore, when the trial court warned Williams that the State would have to prove each and every element of the indictment with competent, relevant evidence and obtain a unanimous verdict to succeed, the trial court informed Williams that, absent his plea, the State would have to prove all allegations of the indictment, including the enhancement, to a jury. That Williams knew he acted to waive his right to a jury for purposes of the enhancement is borne out by the following exchange, which took place as the trial judge directly addressed Williams:

Q. Before you could be found guilty— well, let me back up here, the burglary of a dwelling, home invasion carries with it 25 years and if that penalty is enhanced, of course it could be fifty years and with your aggravated assault it carries with it 20 years and if enhanced it could carry with it 40 years; you understand that?
A. Yes, sir.
Q. Now before you could be found guilty the State would have to prove that Dillon Dwayne [sic] Williams ... did unlawfully, willfully, felo-niously and vigariously [sic] break and enter the dwelling of Pat Crumb [sic] ... under circumstances likely to terrorize Pat Crumb who occupied said dwelling at the time of the offense and their [sic] situated in the dwelling was [sic] certain goods, wares, chattels or merchandise of personal property for the use of Pat Crumb and you intended to take, steal and carry away some of that personal property, did you do that?
A. Yes, sir.
Q. And it further alleges that you committed the aforesaid offense of burglary, against the victim, Pat Crumb, who was over the age of 65 at the time of the offense and upon conviction, it could be enhanced, do you understand that?
A. Yes, sir.

After making sure Williams understood that he was waiving his right to have the State prove the charges against him to a jury, the trial judge went over the pertinent charges as to which a jury would be so waived, including the enhancement charge.

¶ 4. While the appellant’s brief discusses the written plea agreement at some length, it wholly fails to address or even acknowledge the above-quoted exchanges during the plea colloquy, by which the trial judge clearly made Williams aware that he would be waiving a jury as to the enhancement. When a defendant such as Williams enters a knowing and voluntary guilty plea, he “waives certain constitutional rights, among them the privilege against self-incrimination, the right to confront and cross-examine the State’s witnesses, the right to a jury trial, and the right to have the State prove each element of the offense beyond a reasonable doubt,” Joiner v. State, 61 So.3d 156, 159 (¶ 7) (Miss. 2011). Williams voluntarily and knowingly pleaded guilty. The trial judge informed him of the elements of the crime against him and informed him that, in pleading guilty, he- waived the right to have a jury decide the truth of the charges 'against him'—including the enhancement at issue. Accordingly, Williams’s basic claim—that the trial court imparted an illegal sentence by failing to empanel a jury for sentencing—has no merit.

II. The sentence imposed upon Williams is not illegal.

¶5. Williams contends that the sentence imposed upon him is illegal. However, even had Williams not waived his right to- sentencing by a jury when he entered his plea of guilty, as the Court of Appeals correctly concluded, the sentence imposed by the circuit court is not illegal. “[A] sentence is not illegal unless it .exceeds the maximum statutory penalty for the crime.” Foster v. State, 148 So.3d 1012, 1016 (¶ 12) (Miss. 2014) (quoting Grayer v. State, 120 So.3d 964, 969 (¶ 16) (Miss. 2013)). The.sentence imparted to Williams in the case sub judice does not exceed the statutory maximum and therefore is a ilegal sentence.

CONCLUSION

¶ 6. Williams waived his statutory right to have a jury sentence him pursuant to Mississippi Code Section 99-19-365 and, even had he not done so, the sentence imparted upon him is not illegal. Accordingly, his petition is without merit. We affirm the ; judgments of the Marshall County Circuit Court and the Court of Appeals.

• ¶ 7. AFFIRMED.

DICKINSON AND RANDOLPH, P.JJ., COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. COLEMAN, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON AND RANDOLPH, P.JJ., AND BEAM, J.; MAXWELL, J., JOINS IN PART. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J,

COLEMAN, JUSTICE,

CONCURRING:

¶ 8. I concur with the majority’s reasoning and conclusion that no merit can be found in Williams’s claim. I write separately because the Court never has properly addressed the effect of the codification of various bars to post-conviction relief, such as the two at issue today, on the fundamental-rights exception .to the procedural bars. Because the Legislature can only enact substantive law and may not enact procedural law in the form of bars to relief or any other, I would overrule Rowland v. State, 42 So.3d 503 (Miss. 2010), Rowland v. State, 98 So.3d 1032 (Miss. 2012), and any other case in which the Mississippi Supreme Court has held that the courts of Mississippi can apply the judicially crafted fundamental-rights exception to constitutional, substantive enactments of the Legislature.

¶ 9. Despite the passage of the Mississippi Uniform Post-Conviction Collateral Relief Act, the Mississippi Supreme Court has continued to apply pre-existing law regarding the inapplicability of certain procedural bars to the substantive law as delineated by the Legislature, Our failure to address head-on the effect of codifying the various bars to post-conviction relief has forced our courts—trial and appellate—to perform feats of jurisprudential contortion, e.g., repeatedly referring to enactments of the Legislature as “procedural” bars. Another example of the self-imposed paradox can be found in the Court of Appeals’ opinion, in which the Court of Appeals first had to determine that Williams’s petition had no merit before it then wrote that his claim was procedurally barred. Williams v. State, 218 So.3d 1190, 2016 WL 1117669 (Miss. Ct. App. March 22, 2016).

¶ 10. The trial court relied on two statutory bars in issuing its denial of Williams’s petition: Mississippi Code Section 99-39-23(6), which bars “second or successive” petitions after a first petition is dismissed or denied, and Mississippi Code Section 99-39-21(1), which bars “objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal” except upon a showing of cause and actual prejudice. The State raises the issue and argues on appeal that both sections bar Williams’s petition. Both sections became effective in 1984 with the passage of the Mississippi Uniform Post-Conviction Collateral Relief Act. Williams contends that the fundamental-rights exception to the procedural bars applies to his claim to prevent the application of the statutory bars,

¶ 11. Nine years prior to the passage of the Uniform Post-Conviction Collateral Relief Act, the Mississippi Supreme Court decided Newell v. State, 308 So.2d 71 (Miss. 1976), in which the Court held that rules of procedure are the sole province of the courts. According to the Newell holding, the Legislature has no authority to enact rules of procedure. Id. at 78. Here one finds the unspoken and, unworkable paradox that plagues our current post-conviction jurisprudence. If the two bars codified in Section 99-39-23(6) and Section 99-39-21(1) truly are procedural, then pursuant to Newell, the Legislature has no authority to enact them in a statute and the bars as expressed in the statutes are unconstitutional on their face. If, on the other hand, the two bars in play in the instant case are constitutional, positive expressions of substantive law, then the courts of our state have no business not following, and enforcing them. Little v. Miss. Dep’t of Transp., 129 So.3d 132, 138 (¶ 12) (Miss. 2013) (‘We—the judicial branch of government—should not place ourselves in the position of changing the substantive law enacted by the Legislature. ...”) (citing Stockstill v. State, 854 So.2d 1017, 1022-23 (¶ 18) (Miss. 2003)). Courts have a “constitutional mandate to faithfully apply the provisions of constitutionally enacted legislation.” Tallahatchie Gen. Hosp. v. Howe, 49 So.3d 86, 92 (¶ 17) (Miss. 2010), Although the Uniform Post-Conviction Collateral Relief Act is civil in nature, it is instructive .that in Harris v. State, 179 Miss. 38, 176 So. 342 (1937), the Court wrote, “[W]e are admonished and have clearly in mind that penal statutes must be strictly construed, and that the court can neither add to nor take from them, and we cannot by judicial construction, or considerations of expediency, supply what is palpably omitted from a statute.” Id. at 344. I herein take no position as to whether the statutory bars raised by the State and relied upon by the trial judge in the case sub judice are substantive or procedural. I do, however, reexamine the effect on the fundamental-rights exception on the procedural bars codified by the Legislature.

¶ 12. Rowland v. State, 42 So.3d 503 (Miss. 2010), is often considered to be the seminal case in which the Court began applying the fundamental-rights exception to the bars enacted by the Legislature. The Rowland I holding was clarified and narrowed in Rowland v. State, 98 So.3d 1032 (Miss. 2012), or Rowland II. There, the Court wrote, “In addition to the statutory exceptions afforded by the Act, we have provided that an exception to the procedural bars exists for errors affecting certain constitutional rights.” Id. at 1036 (¶ 6). It is the exercise of judicial power to apply judicially created bars to legislatively enacted statutes with which I take issue today. In Smith v. State, 477 So.2d 191 (Miss. 1985), a case cited by the Rowland II Court, one gets a good view into the state of post-conviction relief law at the time the Uniform Post-Conviction Collateral Relief Act went into effect.

This Court has repeatedly and consistently held that “post-conviction relief in Mississippi is not granted upon facts and issues which could or should have been litigated at trial and on appeal.” Smith v. State, 434 So.2d 212, 215 (Miss. 1983), and the numerous authorities cited therein. Post-conviction proceedings are for the purpose of bringing to the trial court’s attention facts not known at the time of judgment. Questions not alleged and raised at trial and/or on direct appeal are procedurally barred and may not be litigated collaterally in a post-conviction environment. Gilliard v. State, 446 So.2d 590 (Miss.1984); Pruett v. Thigpen, 444 So.2d 819 (Miss. 1984); King v. Thigpen, 441 So.2d 1365 (Miss. 1983); Evans v. State, 441 So.2d 520 (Miss.1983); Smith v. State, 434 So.2d 212 (Miss.1983); Edwards v. Thigpen, 433 So.2d 906 (Miss. 1983); Wheat v. Thigpen, 431 So.2d 486 (Miss. 1983); Callahan v. State, 419 So.2d 165 (Miss. 1982).
As the state suggests, it is noted that this issue was not raised on direct appeal, nor does the motion here show such facts as are necessary to demonstrate that this claim is not procedurally barred.
However, this Court has previously held that errors affecting fundamental rights are exceptions to the rule 'that questions not raised in the trial court cannot be raised for the first time on appeal. Read v. State, 430 So.2d 832 (Miss. 1983); Brooks v. State, 209 Miss. 150, 46 So.2d 94 (1950). It is noted that in the case sub judice that the defense counsel failed to raise the sentence issue on appeal, but that this defendant is raising the issue in his pro se post-conviction motion to correct sentence. This Court recognizes that citizens may not be deprived of constitutional rights without due process of law and that due process requires reasonable advance notice ánd a meaningful opportunity to be heard. Read, supra. An analysis of the indictment in this case, together with the foregoing transcript of the sentencing hearing, clearly show a denial of due process in sentencing. The comparison of a seven year sentence, as opposed to a life sentence, without probation or parole is too significant a deprivation of liberty to be subjected to a procedural bar.
Therefore, this Court is compelled to address this plain error in the sentencing order.

Smith v. State, 477 So.2d 191, 195-196 (Miss. 1985).

¶ 13. For the purpose of considering the application of the fundamental-rights exception to the procedural bars to the statute of limitations, it is critical to notice what the Smith Court did in the above-quoted, admittedly lengthy, section above. In the first paragraph, the Court clearly, unequivocally established that issues “not alleged” at trial are procedurally barred from consideration on direct appeal. In the second, the Court took the direct-appeal procedural bar and applied it to Smith’s post-conviction claims. What happened next, in paragraph three, matters. The Smith Court took from the procedural and judicially created rule that procedural bars do not apply in the face of fundamental rights raised in the plain-error context and imported the rule to the post-conviction-relief context. In other words, the Smith fundamental-rights exception to the procedural bars as applicable to post-conviction relief was taken, at least in part, from the procedural bars created by the Court; the bars in question are procedural and judicially created.

¶ 14. The members of the Legislature take an oath of office, in which they swear to “faithfully support the Constitution of the United States and of the State of Mississippi.” Miss. Const. art. 4, § 40. In other words, the judiciary is not the only branch of government that need concern itself with ensuring constitutional rights are protected. Nevertheless, we effectively have found Section 99-39-23(6) and Section 99-39-21(1) unconstitutional without ever giving the State a chance to argue otherwise or requiring that their unconstitutionality be proven beyond a reasonable doubt. Fulgham v. State, 47 So.3d 698, 701 (¶ 8) (Miss. 2010) (citing Edwards v. State, 800 So.2d 454, 460 (Miss. 2001)).

¶ 15. Because even the Supreme Court of Mississippi cannot lawfully amend or ignore the substantive law enacted by the Legislature, I would overrule Rowland I, Rowland II, and any other case in which, and to the extent that, we have held that the fundamental-rights exception to the procedural bars can apply to the substantive bars codified by the Legislature in the Uniform Post-Conviction Collateral Relief Act. I acknowledge that other arguments attack the constitutionality of the statutory bars, either as applied to particular cases or on their face, and I have no intent to address their validity one way or the other.

DICKINSON AND RANDOLPH, P.JJ., AND BEAM, J., JOIN THIS OPINION. MAXWELL, J., JOINS THIS OPINION IN PART. .

KING, JUSTICE,

DISSENTING:

¶ 16. Because Williams’s sentence enhancement was illegal, I respectfully dissent from the majority’s finding that he waived sentencing by a jury and that his sentence was legal.

¶ 17. Procedural bars to PCR motions are inapplicable when errors affecting fundamental rights exist. Rowland v. State, 42 So.3d 503, 505-06 (Miss. 2010). Even where the court ultimately finds the sentence to be a legal one, an allegation that the petitioner is serving time under an illegal sentence suffices to defeat the procedural bars. See Ivy v. State, 731 So.2d 601, 603 (Miss. 1999); Kennedy v. State, 626 So.2d 103, 105 (Miss. 1993) (PCR claims are exempt from procedural bars “where it is clear from the record that the circuit court has exceeded its statutory authority in sentencing and fundamental constitutional rights may be involved”); Grubb v. State, 584 So.2d 786 (Miss. 1991).

¶ 18. Mississippi Code Section 99-19-355 provides the sentencing procedure for the enhancement that Williams received. Miss. Code Ann. § 99-19-355(1) (Rev. 2015). Section 99-19-355 provides that a separate sentencing proceeding, conducted by the trial judge before the trial jury, must be conducted to determine the sentence. Id.

If trial by jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose. If the defendant enters a plea of guilty and waives trial by jury for the sentencing proceeding, the sentencing proceeding shall be conducted before the trial judge sitting without a jury.

Id. (emphases added). The statute requires, in no uncertain terms, that either a jury apply the sentence enhancement or the defendant waive trial by jury for the sentencing proceeding. Clearly, Williams was not sentenced to the enhancement by a jury. Nor did Williams waive the right to a trial by jury for sentencing. The record must illustrate that any waiver was knowing and voluntary. Chunn v. State, 669 So.2d 29 (Miss. 1996). The. record contains no waiver whatsoever of a trial by jury for the sentencing proceeding; indeed, the judge never mentioned to Williams that he would be entitled to a jury for the enhancement sentencing. The plea hearing included Williams and several other criminal defendants unrelated to Williams’s case, who were also pleading guilty to their respective crimes. In the group setting, the circuit court explained that each was waiving his or her right to a trial by jury for their crime or crimes, then asked each individually to confirm that he or she understood that he or she was waiving that right to a trial by jury for their crime or crimes. Williams' confirmed that he understood that he- was waiving the right to be tried by a jury for the crimes of burglary and aggravated assault. No indication exists that he understood and waived that he would have been allowed a sentencing jury for the sentence enhancement.

¶ 19. This Court has held that, where a sentence requires a jury determination, and a judge fixes that sentence without a jury, the sentence is illegal and is plain error. In Grubb, the defendant pled guilty under the kidnapping statute. Grubb, 584 So.2d at 789. The statute stated that a person convicted of kidnapping shall “be imprisoned for life ... if the punishment is so fixed by the jury in its verdict. If the jury fails to agree on fixing the penalty at imprisonment for life, the court shall fix .the penalty at not less than one (1) year nor more than thirty (30) years....” Id. (quoting Miss. Code Ann. § 97-3-53 (Supp. 1990)). Grubb pled guilty to kidnapping and the trial judge sentenced him to life imprisonment. Grubb, 584 So.2d at 789. The Court found that the trial judge only “had authority to fix the penalty at not less than one year nor more than thirty years in the state penitentiary under the statute.” Id. The Court found plain error that affected fundamental constitutional rights, since the sentence was not submitted to a jury. Id.; see also Luckett v. State, 582 So.2d 428 (Miss. 1991), overruled on other grounds by Bester v. State, 188 So.3d 526 (Miss. 2016) (where the law at the time was that only a jury could sentence a defendant to life imprisonment for rape, it was a denial of due process in sentencing for the trial judge to sentence the defendant to life imprisonment). Likewise in this case, only a jury had the authority to apply the enhancement in Section 99-19-355; the trial judge had no such authority. The enhancement portion of Williams’s sentence is therefore illegal and violates his due process rights in sentencing.

¶ 20. Because the enhancement portion of Williams’s sentence is illegal, I would reverse and - remand Williams’s twenty year sentence enhancement.

KITCHENS, J., JOINS THIS OPINION.


author: MAXWELL, JUSTICE, DICKINSON, PRESIDING JUSTICE,

text:
    Laterrence LENOIR a/k/a Laterrence A. Lenoir a/k/a Laterrence Awson Lenoir a/k/a Laterrance Lenoir v. STATE of Mississippi
    NO. 2016-KA-00226-SCT
    Supreme Court of Mississippi.
    05/18/2017

      LINCOLN COUNTY CIRCUIT COURT, MICHAEL M. TAYLOR, J.
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: JUSTIN TAYLOR COOK, GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART
   MAXWELL, JUSTICE,

FOR THE COURT:

¶ 1. This case involves Mississippi Rule of Evidence 701. Under this rule, when a fact issue exists about who is portrayed in a surveillance video, a witness with greater familiarity with the defendant than the jury could possess may offer an opinion that the defendant is the person in the video. In this case, Laterrence Lenoir was claimed to be one of the armed robbers captured on surveillance video. So under Rule 701, the trial judge was within his discretion to admit testimony from witnesses familiar with Lenoir that, in their opinion, Lenoir was one of the robbers in the video. Thus, we find no error in the trial judge’s admission of this testimony, nor do we find error in the judge’s denial of Lenoir’s motion for new trial. We therefore affirm Lenoir’s convictions and sentences.

Background Facts and Procedural History

I. Armed Robbery

¶2. Surveillance video showed that, on the evening of September 7, 2013, a man approached the front door of the Dollar General in Brookhaven, Mississippi. He looked inside and then walked away. The man soon returned with a second man wearing a mask. After the two men entered the store, the first man pulled a mask over his face too. The first man was carrying a pistol. And the second man was carrying a sack.

¶3. There were two employees in the store that night, Shanti Freeman Nettles and Kaitlynn Calcotte. Their manager, Jessica Odum, had instructed Nettles to open the safe early, so she and Calcotte could go home. When the two robbers showed up, Nettles was in the office counting the money in the safe. Calcotte was at the register. When she saw the two masked men, she went into the office with Nettles.

¶ 4. The video showed the two men followed Calcotte to the office. The first man pointed his pistol at them, and Nettles and Calcotte handed over their personal money and their cell phones. Then, at the direction of the second man, they handed over the money from the safe.

II. Investigation

¶ 5. After the robbers left, Nettles and Calcotte called 911. Captain Byron Catchings with the Lincoln County Sheriffs Department was tasked with investigating the robbery. During his investigation, Lenoir had surfaced as a person of interest. So Catchings began surveilling him. Based on his personal observations of Lenoir, Catchings concluded Lenoir was the first man in the video. Lenoir was charged with two counts of armed robbery and one count of conspiracy to commit armed robbery.

III.Trial and Conviction

¶ 6. At trial, Catchings testified about his investigation and his identification of Lenoir as the first man in the video, which was played for the jury. The State also called two other witnesses familiar with Lenoir—Willie Butter and Greta Mathis. Willie Butler’s niece had dated Lenoir. At the time of trial, Butler testified he had known Lenoir for “possibly two years.” Butler testified he recognized Lenoir as the man in the video based on “his body and his walk.” He also testified he had seen Lenoir’s face at the beginning of the surveillance video. Greta Mathis, like Butler, was related to Lenoir’s girlfriend. She testified she also recognized Lenoir as the man in the video “just [by] the way he walk[ed].”

¶ 7. The State called a third witness familiar with Lenoir—Jeffery Thomas. Thomas went to church with Lenoir. Before trial, Thomas had given a statement identifying Lenoir as the man in the video. But at trial, he said he had given this statement under pressure. Thomas testified he did not know who it was in the video because it was too blurry make an identification. Odom, the Dollar General manager, testified on behalf of Lenoir. She said she had watched the surveillance video, and the man in the video was not Lenoir. Lenoir himself testified, denying any involvement in the robbery.

1t 8.-At the close of trial, the jury found Lenoir guilty of all- three counts.

iy. Appeal

¶ 9. After his motion for a new trial was denied, Lenoir timely appealed. On appeal, he raises two issues:

(1) The trial court erred in admitting the nonspecific, nonsubstantive identification of Lenoir by Butler and Mathis based solely on the, purported way Lenoir walked.
(2) Lenoir’s convictions are against the overwhelming weight of the evidence.

Discussion

I. Admission of Identification Testimony

¶ 10. Lenoir first argues the trial court reversibly erred when it admitted Butler’s and Mathis’s testimony identifying Lenoir as one of the robbers in the video.

¶ 11. Before .trial, Lenoir had filed a motion in limine to exclude Butler’s and Mathis’s identifications. But the trial court overruled Lenoir’s motion, finding the lay opinion testimony admissible under Mississippi Rule of Evidence 701. Rule 701 provides: “If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a. fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Butler’s and Mathis’s opinions were based on their personal perception of how Lenoir walked.

And due to the grainy quality of the video, the trial court determined their identifications were helpful to determining a fact in issue. So their testimony met -the requirements of Rule 701..

¶ 12. While Lenoir now asserts the trial court reversibly erred, the admission of testimony is within the sound discretion of the trial court. Bishop v. State, 982 So.2d 371, 375 (Miss. 2008). And after review, we find no abuse of discretion in admitting this testimony.

¶ 13. While this Court has yet to address the admissibility of opinión testimony identifying a person in a video under Rule 701, the Mississippi Court of Appeals has. In Bennett v. State, 757 So.2d 1074, 1076 (Miss. Ct. App. 2000), the Court of Appeals looked to other jurisdictions that had addressed this issue, finding “a majority view has developed that, at least under certain circumstances, such opinion evidence may be admitted to aid the jury.” Particularly instructive was the federal case United States v. Jackman, 48 F.3d 1 (1st Cir. 1995). In Jackman, the First Circuit “concluded that [opinion identification] evidence ought to be admitted in any circumstance where it can be demonstrated that the witness has a greater familiarity with the defendant’s appearance than the jury could possess and the recorded likeness is not either (a) so unmistakably clear, or (b) so hopelessly obscured, that the witness is no better suited than the jury to draw a meaningful conclusion as to the identity of the person depicted.” Bennett, 757 So.2d at 1076 (citing Jackman, 48 F.3d at 4-5).

¶ 14. Applying this principle to Bennett’s facts, the Court of Appeals held it was error for the trial court to exclude the defendant’s mother’s opinion testimony that her son was not the man selling drugs in a video the State had introduced. Id. at 1077. In that case, “there was a legitimate issue of identification of the [defendant] as the person carrying out the videotaped drug transaction.” Id. And the court found “[t]hat is the very circumstance in which opinion evidence may properly be received from witnesses who, by their previous acquaintance with the [defendant], have some greater ability to identify him in a photograph or videotape than would a typical juror having no previous involvement with the [defendant].” Id. Because the defendant’s theory was mistaken identity, the Court of Appeals held- the defendant’s mother should have been permitted to testify “she had viewed the videotape, and based upon her intimate familiarity with her son, was of the opinion that the person carrying out the drug transaction was not Cavaleer Bennett.” Id.

¶ 15. We agree with the Court of Appeals. “When there is a genuine issue of fact as to who is actually portrayed in a photograph or videotape, it is that sort of lay opinion evidence that can prove ‘helpful’ to the jury within the meaning of Mississippi Rule of Evidence 701.” Id. In this case, the video was neither “so unmistakably clear” that no identification testimony was needed nor “so hopelessly obscured, that the witness is no better suited than the jury to draw a meaningful conclusion as to the identity of the person depicted.” Id. at 1076. So the trial court was within its discretion to admit testimony by “a witness [who] has greater familiarity with the defendant’s appearance than the jury could possess.” Id.

¶ 16. On appeal, Lenoir concedes “the law is fairly well settled that lay witnesses can offer opinions concerning the identity of someone on a video.” Still, he insists Butler’s and Mathis’s opinions do not pass muster under Rule 701, because—in contrast with the mother in Bennett—they were not sufficiently familiar with Lenoir to offer such an opinion. But we find the level of familiarity with Lenoir goes to the weight and credibility of their opinion testimony, not its admissibility. Rule 701 requires lay opinion testimony to be “rationally based on the perception of the witness.” M.R.E. 701. And both Butler and Mathis testified their opinions were grounded in their observation of how Lenoir walked. Thus, we find no abuse of discretion in the trial court’s permitting Butler and Mathis to testify they had viewed the video and, based on their familiarity with how Lenoir walked, were of the opinion the first man in the video was Lenoir. Cf. id.

¶ 17. Nor do we find, as Lenoir contends, the probative value of this admissible evidence was outweighed by . the danger of unfair prejudice. See M.R.E. 403. Undoubtedly, this evidence had probative value, as it went to the key factual issue at trial—whether Lenoir was in fact the first man in the video. And Lenoir’s argument for why the evidence is unfairly prejudicial—Butler’s and Mathis’s bias against him—goes to the weight the jury-ought to have given the evidence, not its admissibility. See id. (finding “questions of bias, even if evident on their face, go to the issue of the weight the jury ought to give the evidence and do not affect its admissibility”).

¶ 18. In other words, we find Lenoir’s claims of lack of sufficient familiarity with how he walked and bias'against him were weight-and-credibility issues for him to expose on cross-examination, and not reasons for this Court to reverse the trial court’s evidentiary ruling.

II. Weight of the Evidence

¶ 19. Lenoir’s only other claim on appeal is that he is entitled to a new trial based on the weight of the evidence.

¶ 20. When reviewing the denial of a motion for new trial, we weigh the evidence in the light most favorable to the verdict and “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 v. State, 895 So.2d 836, 844 (Miss. 2005). With this standard in mind, we find no reason to disturb the jury’s verdict.

¶ 21. The jury heard admissible testimony from three witnesses—Catchings, Butler, and Mathis—that Lenoir was one of the men in the video robbing the Dollar General employees at gunpoint. The jury also watched the video. Catchings further testified about his investigation and the other facts that led him to conclude Lenoir was one of the men who robbed the Dollar General. Of course, the jury also heard from a witness who testified Lenoir was not the man in the video and another witness who testified the video was too blurry for him to make an identification. And Lenoir himself also testified in his defense. But “[tjhis Court has in numerous cases, too many to mention, said that when the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony.” Gathright v. State, 380 So.2d 1276, 1278 (Miss. 1980).

¶ 22. By finding Lenoir guilty, the jury obviously believed Catchings’s, Butler’s, and Mathis’s identifications were more credible. Viewing this evidence in the light most favorable to the verdict, we cannot say that the evidence preponderates heavily against the jury’s decision to find Lenoir guilty of all three counts. Thus, we find the trial judge did not abuse his discretion when he denied Lenoir’s motion for a new trial.

III. Sufficiency of the Evidence

¶ 23. Finally, we address the dissent’s contention that the evidence was legally insufficient to support the jury’s verdict. We begin by emphasizing Lenoir has not raised this issue on appeal. Rather, the dissent has injected this issue sua sponte.

¶ 24. The dissent actually agrees there was no error in the judge admitting testimony from three different witnesses who identified Lenoir as one of the robbers captured on the surveillance video. But it then chooses to invoke its own plain-error challenge to the sufficiency of what it concedes was admissible evidence identifying Lenoir as the robber. In doing so, it improperly acts as a thirteenth juror and proceeds to reevaluate the evidence in the wrong light. Instead of reviewing the evidence in the light most favorable to the State—as precedent requires—it eyes the evidence in the light most skeptical to the State. This approach is inappropriate.

¶ 25. “The Bush v. State test for sufficiency of the evidence is familiar.” Poole v. State, 46 So.3d 290, 293 (Miss. 2010) (citing Bush v. State, 895 So.2d 836, 843 (Miss. 2005)). When this Court reviews the sufficiency of evidence supporting a guilty verdict, we view the evidence in the light most favorable to the State and decide if rational jurors could have found the State proved each element of the crime. Id. “We are not required to decide—and in fact ive must refrain from deciding— whether we think the State proved the elements.” Id. at 293-94 (emphasis added). “Rather, we must decide whether a reasonable juror could rationally say that the State did.” Id. at 294.

¶ 26. Here, the dissent finds, on plain-error review, that the sufficiency-of-the-evidence test was not met. But in doing so, the dissent does not refrain from deciding whether it thinks the State proved its case beyond a reasonable doubt. Instead, the dissent actively reevaluates the sufficiency, weight, and credibility of the evidence anew—even going so far as to discredit any reliance by the jury on Catchings’s, Butler’s, and Mathis’s identifications based on the dissent’s personal take on the video.

¶ 27. Presiding Justice Dickinson bases his dissent on his personal view of the surveillance video. Because he personally could not distinguish the robber’s “nose from his mouth,” because he found the robber’s clothes to be “unremarkable,” and because he could discern “[njothing distinguishing or unusual ... about the walk of the person in the video,” he ¡declares the evidence is therefore legally insufficient “in his view.”

¶ 28. This is contrary to our standard of review. Appellate judges simply may not ask whether we think Lenoir was proven guilty beyond a reasonable doubt. Nor may we consider the evidence in the light least favorable to the State. Instead, precedent mandates we view the evidence in the light most favorable to the State and ask whether a fair-minded, rational juror could find the State proved its case beyond a reasonable doubt.

¶29. In other words, we are without authority to review the surveillance video and ask ourselves whether we think Catchings’s, Butler’s, and Mathis’s identifications of Lenoir were credible in light of the video quality and physical characteristics of the robbers. This is because “the jury [is the] sole judge of .the credibility of witnesses and the weight and worth of their testimony.” Roberson v. State, 199 So.3d 660, 670 (Miss. 2016). And here, the jury heard admissible testimony from three witnesses that Lenoir was one of the men in the video robbing the Dollar General employees at gunpoint. The jury also watched the video themselves. Though Thomas testified the video was too blurry for him to identify anyone, it was the jury’s job exclusively to determine the weight and credibility of the identification testimony.

¶ 30. Again, by finding Lenoir guilty, the jury obviously found Catchings’s, Butler’s, and Mathis’s identifications to be credible. We have been crystal clear that “[a] jury’s resolution of such factual determinations must be respected where, after reviewing all the evidence in the light most' consistent toith the jury’s finding, we conclude there was sufficient evidence to support the finding.” Boyd v. State, 977 So.2d 329, 336 (Miss. 2008) (emphasis added). Here, viewing the evidence in the light most consistent with the guilty verdict—and not adverse to it—there is sufficient evidence to support the jury’s guilty verdict.

Conclusion

¶ 31. Because the trial court erred neither in denying Lenoir’s motion in limine nor in denying Lenoir’s motion for new trial, we affirm Lenoir’s convictions and sentences.

1132. COUNT I: CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE (5) YEARS SUSPENDED, TWENTY (20) YEARS TO SERVE, AND FIVE (5) YEARS OF POST-RELEASE SUPERVISION, WITH CONDITIONS, AFFIRMED. COUNT II: CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE (5) YEARS SUSPENDED, TWENTY (20) YEARS TO SERVE, AND FIVE (5) YEARS OF POST-RELEASE SUPERVISION, WITH CONDITIONS, AFFIRMED. COUNT III: CONVICTION OF CONSPIRACY TO COMMIT ARMED ROBBERY AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES IN COUNTS II AND III SHALL RUN CONCURRENTLY WITH SENTENCE IN COUNT I. APPELLANT SHALL PAY A FINE IN THE AMOUNT OF $5,000, RESTITUTION IN THE AMOUNT OF $1,995 TO DOLGENCORP, LLC. d/b/a DOLLAR GENERAL #12911 AND $5 TO DOLLAR GENERAL # 12911 AND $150 TO KAITLYNN CALCOTE AND COURT COSTS IN THE AMOUNT OF $ 419.50.

WALLER, C.J., RANDOLPH, P.J„ COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND KING, JJ.

DICKINSON, PRESIDING JUSTICE,

DISSENTING:

¶ 33. Because Butler and Mathis were familiar with Lenoir, the majority correctly finds no error in the trial judge’s decision allowing them to provide lay opinions about the perpetrator’s identity. But this conclusion does not dispose of this case. Lay opinion about a perpetrator’s identity will, in most cases, suffice to support a conviction. But not always. For instance, it would be absurd to suggest that a reasonable jury could find guilt beyond a reasonable doubt, where its verdict rested solely on the relevant, admissible testimony of a witness who looked at a video and opined that the defendant was the person in the video because both have big ears, when no other evidence suggests the defendant committed the crime.

¶ 34. Here, no reasonable juror could find guilt beyond a reasonable doubt based on this lay opinion testimony about the perpetrator’s identity because the identifications are not sufficiently definite—containing reasonable doubt within themselves—and because the witnesses solely based their opinions on a foundation itself wrought with reasonable doubt. But to the few who read this dissent, do not take my word for it. Consider whether you believe a reasonable juror could determine guilt beyond reasonable doubt after viewing the video for yourselves.

¶ 35, Actual, positive identification of the perpetrator in this case does not exist. Instead, the prosecution’s case rested entirely , on lay opinions that, the person’s clothes and walk were similar to those of the defendant, even though neither contained any discernable characteristic. We have the duty to review the evidence to be sure a reasonable juror could find it is capable of supporting a conviction beyond a reasonable doubt. Here, one could not.

¶ 36. The surveillance video of this robbery is so pixilated that no reasonable juror—or witness for that matter—could positively identify the defendant from the video alone. During the two seconds the robber’s face is exposed, that his face appears to be nothing more than a blur with no distinguishable characteristics. One cannot even determine the nose from the mouth. And during the rest of the video, both mfen are wearing masks. No one—no matter how familiar with Lenoir—could identify him by facial recognition.

¶ 37. So, having no other evidence against Lenoir, and recognizing the video itself would get it nowhere, the State introduced opinions from Butler, Mathis, and Catehings to identify the defendant. This was the only evidence linking Lenoir to the robbery: the testimony .of persons who looked at a pixilated video and testified that the person in the video was Lenoir because they recognized his clothes—the perpetrator was wearing an unremarkable black tee shirt and unremarkable black shorts, and apparently, Lenoir owned a black tee shirt and a pair of black shorts— and they recognized the way he walked. Nothing distinguishing or unusual can be discerned about the walk of the person in the video, and the majority identifies none. Not even a limp.

¶ 38. And as for the black tee shirt and black shorts worn by the person in the video, neither contains a logo, emblem, tear, or any other feature that would distinguish these items of clothing from any other black tee shirts and shorts; and again, by its silence, I must assume the majority finds none.

¶ 39. Catehings admitted that, during his interrogation of Lenoir, he denied being the robber. And while Catehings testified that Lenoir shrugged his shoulders during the interrogation when asked why he robbed the store, neither Catehings nor the majority has any way of knowing what Lenoir meant by this gesture, particularly in light of his consistent denials that he had anything to do with the crimé.

¶ 40. In this ease, there are no eyewitnesses. There is no forensic evidence. No fingerprints, DNA, or hair. So wé are left with a conviction based solely on witnesses who looked at a pixilated video and testified that the person in the '' video had clothes like Lenoir and walked like Lenoir. And both the clothes and the walk were not distinctive in any way. That evidence, in my view, is insufficient for a finding beyond a reasonable doubt of guilt. No reasonable juror could reject the doubt inherent in opinions based bn such ambiguous criteria.

¶ 41. Lenoir moved for a directed verdict at the close of the prosecution’s case-in-chief; however, he did not raise the sufficiency of the evidence on appeal—although his weight-of-the-evidence argument reads more like a sufficiency-of-the-evidence argument, challenging the State’s proof of his identity. So the only avenue for review is the plain-error doctrine. “For the plain-error doctrine to apply, there must have been ‘an error that resulted in a manifest miscarriage of justice or seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ”

¶ 42. Further, when assessing the legal sufficiency of a conviction, this Court determines “ ‘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.’ ” This Court must reverse a conviction “[i]f facts and inferences considered by the Court ‘point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty.’ ”

¶ 43. I do not contend that the jury was not free to believe the opinions of Butler, Mathis, and Catchings. The jury certainly could accept as true that the witnesses actually believed Lenoir was the man in the video and, in fact, I assume they did. But, given the facts in this case, those opinions, standing alone, are insufficient to lead any reasonable juror to conclude beyond a reasonable doubt that Lenoir committed the crime.

¶ 44. There can be no greater miscarriage of justice than to allow a conviction to stand based on wholly insufficient evidence. Accordingly, I would reverse Lenoir’s convictions of armed robbery and conspiracy to commit armed robbery and render judgment in his favor.

' KITCHENS AND KING, JJ., JOIN THIS OPINION.

      . Bennett v. State, 757 So.2d 1074, 1076 (Miss. Ct. App. 2000) (citing United States v. Jackman, 48 F.3d 1, 4-5 (1st Cir. 1995)).

      . Lenoir’s motion in limine did not seek to ' exclude Catchings’s identification testimony. Nor did Lenoir object at trial when Catchings testified he thought Lenoir was the first man in the video, based on his observations of him,

      . Lenoir argues their alleged lack of sufficient familiarity, with him meant their testimony could not pass through Rule 602’s filter. See M.R.E. 602 ("A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”). But Lenoir never raised a Rule 602 objection to Butler’s and Mathis’s identification testimony in his motion in limine or at trial. So this particular objection is waived. See Ballenger v. State, 667 So.2d 1242, 1266 (Miss. 1995) (“The assertion on appeal of grounds for an objection which was not the assertion at trial is not an issue properly preserved on appeal.”). Moreover, both witnesses testified they were personally acquainted with Lenoir and could recognize him by the way he walked, thus satisfying Rule 602’s threshold requirement.

      . United States v. Jackman, 48 F.3d 1, 5 (1st Cir. 1995).

      . https://courts.ins.Kov/Newsite2/appellate courts/sc/oawebcasts ,php? vid=D 6 AOxI7 FyB 4

      . Green v. State, 183 So.3d 28, 30 (Miss. 2016) (citing Holmes v. State, 798 So.2d 533, 534 (Miss. 2001); Miss. R. Evid. 103(d); Miss. R. App. P. 28(a)(3)).

      . Hall v. State, 201 So.3d 424, 428 (Miss. 2016) (quoting Brown v. State, 995 So.2d 698, 703 (Miss. 2008)).

      . Graham v. State, 185 So.3d 992, 998 (Miss. 2016) (quoting Bush v. State, 895 So.2d 836, 843 (Miss. 2005)).

      . Id. (quoting Bush, 895 So.2d at 843).


author: WALLER, CHIEF JUSTICE, DICKINSON, PRESIDING JUSTICE,

text:
    Hosan M. AZOMANI a/k/a Hosan Azomani a/k/a Hosan Menanya Azomani a/k/a Dr. Azomani a/k/a Hosan Azomani M.D. a/k/a Dr. Hosan M. Azomani v. STATE of Mississippi
    NO. 2015-CT-00050-SCT
    Supreme Court of Mississippi.
    06/01/2017

      WASHINGTON COUNTY CIRCUIT COURT, BETTY W. SANDERS, J.
    ATTORNEY FOR APPELLANT: GLENN S. SWARTZFAGER
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER
   ON WRIT OF CERTIORARI

WALLER, CHIEF JUSTICE,

FOR THE COURT:

¶ 1. Dr. Hosan Azomani seeks review of the Court of Appeals’ affirmance of his conviction and sentence for two counts of Medicaid fraud in violation of Mississippi Code Sections 43-13-213 and 43-13-215. We granted certiorari to address venue and statute-of-limitations issues. Finding that venue was proper and that the claims were prosecuted within the statute of limitations, we affirm the judgment of the Court of Appeals and affirm the conviction and sentence of the trial court.

FACTS AND PROCEDURAL HISTORY

¶2. Dr. Azomani practiced pediatric medicine under the name Children’s Medical Group of Greenville PLLC, in Green-ville, Mississippi, which is located in Washington County. In 2007, the Division of Medicaid conducted an audit of Dr. Azo-mani’s patient files, which revealed three coding errors. Though Dr. Azomani admitted to the errors, he claimed that he had not deliberately made the mistakes.

¶3. Later, following three complaints involving Dr. Azomani’s choices of treatment for patients, Officer David Delgado of the Medicaid Fraud Control Unit investigated Dr. Azomani’s Medicaid billing. Officer Delgado testified that Dr. Azomani regularly billed the highest-level code for almost all of his patients. Specifically on October 19, 2010, Dr. Azomani billed Mississippi Medicaid under the highest-level code for all fifty-six children he treated that day. And on January 3,. 2011, he used the same code to bill Medicaid for the sixty-nine children he treated on that -day. Using this code for all children treated on those two days, he was reimbursed the highest possible amount for all office visits on those two days, for which Medicaid paid him a total of $14,715.66. Experts who reviewed Dr. Azomani’s records for Medicaid unanimously concluded that none of the children Dr: Azomani treated during those two days should have been billed under that code.

¶4. Dr. Azomani was indicted in the Washington County Circuit Court on January 13, 2014,' on thirteen counts of Medicaid fraud. He was tried over six days beginning on October 27, 2014. At trial,'the State called numerous witnesses involved with the investigation and audit of Dr. Azomani’s files. Experts for the State and Dr. Azomani agreed that he improperly •billed Medicaid for all of the patients he treated during the two days at issue. Dr. Azomani testified that he did not intend to bill Medicaid improperly. Instead, he claimed that he had relied on the 2007 partial review of his files, which allegedly had suggested incorrectly that he had been billing properly. On November 1, 2014, the jury found him guilty of two counts of fraudulently misusing the highest-level billing code, an inappropriate code for the 125 children he treated on the two aforementioned days; Dr, Azomani was acquitted on the other eleven counts. Dr. Azoma-ni was sentenced to three years for each count, to be served' concurrently.

¶ 5. Dr. Azomani appealed, raising multiple issues including: (1) improper venue, (2) variance between the jury-instruction language and the indictment language, (3) indictment after the statute-of-limitations period, (4) the State’s failure to, prove beyond a reasonable doubt that Dr. Azomani willfully, unlawfully, and feloniously made false, fictitious, and fraudulent claims for Medicaid benefits, (5) ineffective assistance of counsel, and (6) cumulative errors that warranted reversal. The Court of Appeals found that none of these issues warranted reversal and affirmed the trial court’s judgment. Azomani v. State, 222 So.3d 343, 2016 WL 4187614 (Miss. Ct. App. Aug. 9, 2016).

¶ 6. This Court granted certiorari to review issues (1) and (3). See Miss. R. App. P. 17(h).

DISCUSSION

I. Whether Hosan ,M. Azomani was denied his right to due process under the United States and Mississippi Constitutions when the State failed to establish proper venue.

¶7. During pretrial proceedings, Dr. Azomani filed a motion to dismiss for improper venue, arguing that venue would be proper in Madison County, his home county, or Hinds County, pursuant to Mississippi Code Section 43-13-223(1) of the Medicaid Fraud Control Act. See Miss. Code Ann. § 43-13-223(1) (Rev. 2015). However, Dr. Azomani’s lawyer advised the trial court that he was not going to pursue the motion for improper venue. While Dr, Azomani’s counsel did state he might' address the motion later, he failed to pursue it, and no ruling was made on the motion. Following the State’s case, Dr. Azomani moved for a directed verdict based on the State’s failure to prove venue. The trial court denied the motion, finding that the State had proven that Dr. Azomani’s practice, patients, patients’ records, and other evidence were originated, performed, or retained in Washington County.

¶ 8. Dr. Azomani, for the first time on appeal, asserted that the State had failed to establish venue, denying his right to due process under the Constitutions of the United States and the State of Mississippi. The Court of Appeals found that the venue issue asserted under the Medicaid Fraud Control Act was waived, and, as a result, it found the issue was proeedurally barred. Azomani v. State, 222 So.3d 343, 347-48, 2016 WL 4187614, *2 (Miss. Ct. App. Aug. 9, 2016). The Court of Appeals determined that, because venue was established pursuant to Article 3, Section 26 of the Mississippi Constitution, Section 43-13-223(1) must apply only to civil actions. Id. at 349-50, 2016 WL 4187614, at *4.

¶ 9. Dr. Azomani in his Petition for Certiorari takes issue with the holding of the Court of Appeals concerning waiver of his venue claim for failure to bring his motion to a hearing. He asserts that the issue of venue can be raised for the first time on appeal as a constitutional right. Rogers v. State, 95 So.3d 623, 630 (Miss. 2012) (citing Gillett v. State, 56 So.3d 469, 502 (Miss. 2010) (finding that venue in criminal cases is jurisdictional and may be raised for the first time on appeal)). Dr. Azomani is correct in his assertion that the Court of Appeals erred in holding venue in a criminal case can be waived. After finding that a review of Dr. Azomani’s original venue motion was proeedurally barred, the Court of Appeals also reviewed the claim of improper venue on the merits as an exception to the procedural bar. Azomani, 222 So.3d at 347, 2016 WL 4187614, at *2 (quoting Foster v. State, 148 So.3d 1012, 1016 (¶ 12) (Miss. 2014)). The Court of Appeals found the issue was without merit because Article 3, Section 26 of the Mississippi Constitution provides that a defendant has a constitutional right to be tried in the county where the offense was committed. Id.

¶ 10. In his Petition for Certiorari, Dr. Azomani conflates a statutory venue provision'into a constitutional right. We disagree that Dr. Azomani has a constitutional right to venue under Section 43—13— 223(1). As the Court of Appeals recognized, the constitutional right to venue is set out in Article 3, Section 26, which directs that the accused shall'have a right to a “public trial by an impartial jury of the county where the offense was committed.” State v. Caldwell, 492 So.2d 575, 577 (Miss. 1986) (emphasis added). As correctly noted by the Court of Appeals, the only reasonable interpretation of the venue provisions under the Medicaid Fraud Control Act under Section 43-13-223(1) is that their application would be limited to civil cases. Azomani, 222 So.3d at 349-50, 2016 WL 4187614, at *4; see also Walker v. State, 881 So.2d 820, 824 (Miss. 2004) (statutes are presumed to be constitutional).

¶ 11. Because Dr. Azomani’s trial was in the county “where the offense was committed,” as provided by the Mississippi Constitution, we find that venue was proper in Washington County and that this issue is without merit.

II. Whether Medicaid fraud is within the exception to the two-year statute of limitations.

¶ 12. In 1998, the Mississippi Legislature amended Mississippi Code Section 99-1-5 and added “obtaining money or property under false pretenses or by fraud” to the list of the crimes that are exempt from the two-year statute of limitations. At that time and even today, no crimes are specifically entitled “obtaining money or property under false pretenses or by fraud,” as provided in the statute. Miss. Code Ann. § 99-1-5 (Rev. 2015). Dr. Azomani argued that, since Mississippi Code Section 99-1-5 specifically does not include “Medicaid fraud,” then Medicaid fraud has a two-year statute of limitations.

¶ 13. In Moffett v. State, Moffett argued that, since capital murder was not listed specifically under Section 99-1-5, it was not exempt from the two-year statute of limitations. Moffett v. State, 49 So.3d 1073, 1081 (Miss. 2010). Relying on a Texas case which dealt with a similar issue, this Court addressed the issue as one of first impression. Id. at 1082 (citing Fearance v. State, 771 S.W.2d 486, 494-95 (Tex. Crim. App. 1988)). We found that capital murder was a species of murder, and as such, it had no statute of limitations. Id.

¶ 14. In another case, a similar argument was advanced with the same result. The Court of Appeals, in Hernandez v. State, 137 So.3d 889 (Miss. Ct. App. 2013), correctly reasoned that, even though statutory rape was not expressly set out in Section 99-1-5, “it is within the definition of rape for purposes of the exceptions to the general two-year statute of limitations.” Id. at 892. Accordingly, we find that Medicaid fraud is a species of or within the definition of “obtaining money or property under false pretenses or by fraud” and that this issue is without merit.

CONCLUSION

¶ 15. Finding that Dr. Azomani was indicted and convicted in the proper venue and that Medicaid fraud is exempt from the two-year statute of limitations, we affirm the judgment of the Court of Appeals and affirm the trial court’s judgment including conviction and sentence for both counts of Medicaid fraud.

¶ 16. THE JUDGMENTS OF THE COURT OF APPEALS AND THE WASHINGTON COUNTY CIRCUIT COURT ARE AFFIRMED. COUNT I: CONVICTION OF MEDICAID FRAUD AND SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, SUSPEND EXECUTION, TO BE SERVED AS ONE (1) YEAR SUPERVISED PROBATION FOLLOWED BY TWO (2) YEARS UNSUPERVISED PROBATION, AFFIRMED. COUNT II: CONVICTION OF MEDICAID FRAUD AND SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, SUSPEND EXECUTION, TO BE SERVED AS ONE (1) YEAR SUPERVISED PROBATION FOLLOWED BY TWO (2) YEARS UNSUPERVISED PROBATION, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONCURRENTLY WITH THE SENTENCE IN COUNT I. APPELLANT SHALL COMPLETE 100 HOURS OF COMMUNITY SERVICE. APPELLANT SHALL PAY COURT COSTS AND ASSESSMENTS, $6,621.37 AS THE AMOUNT RECEIVED IN COUNT I OF THE INDICTMENT PAYABLE TO THE STATE OF MISSISSIPPI DIVISION OF MEDICAID, $8,094.39 AS THE AMOUNT RECEIVED IN COUNT II OF THE INDICTMENT PAYABLE TO THE STATE OF MISSISSIPPI DIVISION OF MEDICAID, AND $44,147.28 AS TREBLE DAMAGES AUTHORIZED BY THE MEDICAID FRAUD CONTROL ACT: MISS. CODE ANN. § 43-13-225 PAYABLE TO THE STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL. PAYMENT PLAN TO BE FILED BY PROBATION AND PAROLE.

RANDOLPH, P.J., KITCHENS, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY COLEMAN, J. KING, J., NOT PARTICIPATING.

DICKINSON, PRESIDING JUSTICE,

CONCURRING IN PART AND IN RESULT:

¶ 17. Today, the majority perpetuates the imprecise dicta from previous cases regarding venue in criminal cases by holding that Article 3, Section 26 of the Mississippi Constitution mandates venue in the county where the criminal offense was committed. Article 3, Section 26 of the Mississippi Constitution provides: “In all criminal prosecutions the accused shall have a right to ... a speedy and public trial by an impartial jury of the county where the offense was committed.” The provision neither mentions nor mandates venue in any particular county. Upon careful review of the Constitution’s precise language, I respectfully disagree with the majority’s reasoning.

¶ 18. Dr. Azomani was indicted and convicted in Washington County, where he committed Medicaid fraud. He argues that, for Medicaid fraud, venue for his crime is set by Mississippi Code Section 43-13-223, which provides that a Medicaid-fraud prosecution “may be filed in the circuit court of the First Judicial District of Hinds County or in the circuit court of the county in which the defendant resides.” And because the statute does not provide for venue in Washington County, the county where the crime was committed, Dr. Azo-mani argues the State failed to prove Washington County was a permissible venue.

¶ 19. The majority finds venue proper in Washington County based on Article 3, Section 26 of the Mississippi Constitution. But venue is “the proper or a possible place for a lawsuit to proceed,” and Article 3, Section 26 says nothing about where a prosecution must occur. Instead, it guarantees the defendant a jury drawn from a particular county.

¶ 20. At times, this Court loosely has referred to Article 3, Section 26 as a venue requirement. But we never have faced a case that required us to determine whether that provision requires a trial physically to be held in a particular county, or only that the jury be selected from a particular county. In my view, this Court should hon- or the clear language of the constitutional provision—“trial by an impartial jury of the county where the offense was committed”—and cease to apply it to the location of the trial. However, as to Dr. Azomani’s case, the inquiry does not end here.

¶21. Mississippi Code Section 99-11-3 provides that “[t]he local jurisdiction of all offenses, unless otherwise provided by law, shall be in the county where committed.” So in most cases—including the one before us today—Section 99-11-3 establishes venue in the county where the crime was committed.

¶ 22. While Mississippi Code Section 43-13-223 does provide that a Medicaid-fraud prosecution “may be filed in the circuit court of the First Judicial District of Hinds County or in the circuit court of the county in which the defendant resides,” it contains no language suggesting a Medicaid-fraud prosecution may be brought only in those counties. Instead, it simply states the action may be brought there, thus allowing for venue in other counties where venue is provided by statute. In my view, Section 43-13-223’s permissive language simply adds permissible venues to the one in Section 99-11-3. So, because I believe venue was proper under Section 99-11-3,1 concur in part and in result.

COLEMAN, J., JOINS THIS OPINION

      . The highest-level code under the “Current Procedural Terminology” (CPT) is 99215. This code requires that the doctor spend forty minutes face-to-face with the patient.

      . While Dr, Azomani stated in both his briefs and petition for certiorari that the trial court erred in denying his motion for directed verdict, he failed to assert his right to review on the issue since the issue was not supported by any authority, Brown v. State, 534 So.2d 1019, 1023 (Miss. 1988) (The Court had no obligation to consider the issue for defendant’s failure to provide authority for the argument).

      . The entire act addresses both civil and criminal actions. Criminal penalties are established in Section 43-13-215 and civil penalties are provided for under Section 43-13-225.

      .In discussing the waiver of venue, the Court of Appeals stated that this Court previously had found that the Court of Appeals “went too far when applying the principle that venue is not waivable." Azomani, 222 So.3d at 348, 2016 WL 4187614, at *3 (citing Moreno v. State, 79 So.3d 508, 511 (Miss. 2012)). However, Moreno dealt with an appeal from a trial court’s denial of post-conviction-relief proceedings and not a direct appeal situation as the case sub judice, Moreno, 79 So.3d at 511. This Court will not, as a rule, consider a claim for improper venue filed for the first time in post-conviction-relief proceedings. Id.

      . Miss. Const. art. 3, § 26 (emphasis added).

      . Miss. Code Ann. § 43-13-223(1) (Rev. 2015) (emphasis added).

      . Venue, Black’s Law Dictionary 1339 (abr. 9th ed. 2010) (emphasis added).

      . Miss. Const. art. 3, § 26.

      . See e.g. Nuckolls v. State, 179 So.3d 1046, 1048-49 (Miss. 2015) (citing Smith v. State, 646 So.2d 538, 541 (Miss. 1994); quoting Rogers v. State, 95 So.3d 623, 630 (Miss. 2012) (quoting Miss. Const. art. 3, § 26)).

      . Miss. Code Ann. § 99-11-3 (Rev. 2015).

      . Miss. Code Ann. § 43-13-223(1) (Rev. 2015) (emphasis added).