author: ISHEE, J., FOR THE COURT:

text:
    Clyde Eugene WILLIAMS a/k/a Clyde E. Williams a/k/a Clyde Williams, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00634-COA
    Court of Appeals of Mississippi.
    August 22, 2017 Rehearing Denied January 9, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: JUSTIN TAYLOR COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JOSEPH SCOTT HEMLEBEN
    BEFORE GRIFFIS, P.J., ISHEE, CARLTON AND GREENLEE, JJ.
   ISHEE, J., FOR THE COURT:

¶ 1. In June 2013, Clyde Williams was indicted in Pearl River County, Mississippi, where he was charged with one count of sexual battery and two counts of attempted sexual battery of his stepdaughter, S.M. Williams proceeded to trial in the Pearl River County Circuit Court in March 2016. The jury acquitted Williams for one count of attempted sexual battery, but found him guilty of the lesser-included offense of fondling on the remaining two counts. Williams moved for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the circuit court denied. Williams was then sentenced to serve fifteen years for each count of fondling, with the sentences to run concurrently, and without eligibility for parole or probation; his sentence was to be served entirely within the custody of the Mississippi Department of Corrections (MDOC). He now appeals. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. S.M. is the stepdaughter of Williams, and was twenty years old at the time of trial. S.M. testified that Camelle, S.M.'s mother, and Williams first met when S.M. was approximately thirteen years old. S.M. stated that Camelle and Williams dated for four or five years before marrying. S.M. testified that, initially, her relationship with Williams was positive, and that he was a good stepfather;

she detailed many outdoor activities they participated in together. S.M., however, stated that Williams remained "drunk a lot," and that he and Camelle often fought, including over sex.

¶ 3. S.M. described the sleeping arrangements in her home. She stated that Williams would sleep with her in her bed almost nightly, while Camelle and S.M.'s stepsister slept in Camelle's room. It was through these sleeping arrangements that S.M. alleged the sexual abuse by Williams began. S.M. stated that she was fourteen years old when Williams first rubbed her breasts and buttocks. S.M. further testified that when she was fifteen, Williams's abuse progressed, wherein he began "putting his hands under [S.M.'s] shirt and in [her] shorts," as well as groping her breasts and rubbing her buttocks and vagina. S.M. also testified that Williams began to digitally penetrate her. At one point, S.M. testified that when she was in her room, Williams undressed her, had her lie on her stomach, and rubbed his penis on her vagina until he ejaculated. S.M. stated that these incidents took place in her bedroom, in Williams's truck, in a tree stand, and at their leased hunting camp.

¶ 4. S.M. also testified that on July 2, 2012, while camping on land that was part of their hunting lease, Williams sexually abused her. She stated that Williams was drunk and the two began to argue. S.M. went to the tent to lie down, but Williams came in shortly after and was "mad and ... drunk." S.M. testified that Williams then took her clothes off and penetrated her digitally, and with his penis. She stated that she began crying out of resistance, and that Williams covered her mouth in an attempt to muffle her cries so that others nearby would not hear her. S.M. said Williams then got dressed, covered her up, and left the tent.

¶ 5. Additionally, S.M. gave testimony regarding an incident that took place in her bedroom on July 28, 2012. S.M. stated that she returned home and found Williams and his friend, Otis Fairley, in the yard. She testified that Williams was highly intoxicated. When S.M. began to walk toward the house, she stated that Williams commented to Fairley that he was going to "tap that tonight," alluding to intercourse with S.M.; Fairley testified that he never heard the comment. According to S.M., Williams came in her room later that evening and attempted to place a plastic bag over her head; she ripped the bag, and eventually, Camelle came in the room and told Williams to leave S.M. alone. Even later that night, Williams allegedly returned to S.M.'s bedroom and tried to "mess with" her. S.M. ultimately stated that Williams digitally penetrated her vagina, and attempted to penetrate her with his penis. S.M., however, testified that she began to scream, that she told Williams to leave her alone, and that Williams promptly went to sleep afterwards.

¶ 6. The following morning, July 29, 2012, S.M. conveyed to Camelle the allegations of Williams's abuse. Camelle was initially very angry, and questioned Williams regarding the alleged abuse; Williams denied any wrongdoing. S.M. then went to stay at her grandfather Herber Ladner's home, where she has resided in large part ever since. Upon informing Ladner of the abuse, he alerted the authorities.

¶ 7. Williams was arrested following the allegations. He was indicted by a grand jury on one count of sexual battery and two counts of attempted sexual battery. Williams proceeded to trial, where he was ultimately convicted of two counts of the lesser-included offense of fondling. Following trial, Williams filed a motion for a JNOV or, in the alternative, a new trial. The circuit court denied Williams's motion, and sentenced him to a total term of fifteen years in the custody of MDOC. He timely appealed.

DISCUSSION

¶ 8. On appeal, Williams assigns as error the following: (1) fondling is not a lesser-included offense of sexual battery; (2) the circuit court erred in denying his motion for a mistrial; (3) the State committed prosecutorial misconduct; (4) the circuit court improperly limited his cross-examination of S.M.; and (5) certain expert testimony violated his constitutional right to confront witnesses against him. We disagree. Therefore, we affirm.

I. Fondling as a Lesser-Included Offense of Sexual Battery

¶ 9. Williams asserts that the circuit court erred in granting the lesser-included instruction on fondling, as he argues that it is not a lesser-included offense of sexual battery. "Jury instructions are reviewed under an abuse-of-discretion standard." Burgess v. State , 178 So.3d 1266, 1272 (¶ 14) (Miss. 2015). "A lesser-included-offense instruction may be given where there is some evidence supporting the lesser-included offense." Jenkins v. State , 131 So.3d 544, 550 (¶ 18) (Miss. 2013).

¶ 10. Williams was indicted for sexual battery under Mississippi Code Annotated section 97-3-95(2) (Rev. 2006), which states:

A person is guilty of sexual battery if he or she engages in sexual penetration with a child under the age of eighteen (18) years if the person is in a position of trust or authority over the child including without limitation the child's ... stepparent [.]

(Emphasis added). "Sexual penetration" is defined by statute to include "any penetration of the genital or anal openings of another person's body by any part of a person's body[.]" Miss. Code Ann. § 97-3-97(a) (Rev. 2006). Fondling, on the other hand, is defined under section 97-5-23(2) as follows:

Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child younger than himself or herself and under the age of eighteen (18) years who is not such person's spouse, with or without the child's consent, when the person occupies a position of trust or authority over the child shall be guilty .... A person in a position of trust or authority over a child includes ... a child's ... stepparent [.]

(Emphasis added).

¶ 11. In Friley v. State , 879 So.2d 1031 (Miss. 2004), the Mississippi Supreme Court was tasked with determining whether fondling was a lesser-included offense of sexual battery. There, Friley was indicted for sexual battery, but ultimately convicted of fondling. Id. at 1032 (¶ 1). Friley cornered the victim, touched her genital area, and then began touching himself. Id. at (¶ 2). The court held that, under the particular facts of that case, fondling was a lesser-included offense of sexual battery. Id. at 1035 (¶ 17). In reaching its conclusion, the supreme court analyzed when one offense may be considered a lesser-included offense of another, employing the test from Sanders v. State , 479 So.2d 1097, 1108 (Miss. 1985), which states:

Whether applied for the benefit of the [S]tate or defense, in order to authorize such instruction the more serious offense must include all the elements of the lesser offense, that is, it is impossible to commit the greater offense without at the same time committing the lesser-included offense. Also, there must be some evidence to support the lesser-included offense.

Friley , 879 So.2d at 1034 (¶ 13).

¶ 12. Utilizing this test, the Friley court then highlighted the elements that each offense shared, noting, however, that fondling required the added intent element of "for the purpose of gratifying his ... lust, or indulging his ... depraved licentious sexual desires[.]" Id. at 1034-35 (¶ 14). Going further, the court stated that "a plain reading of the statutes shows that sexual battery (penetration) includes [fondling] (touching). It is impossible to penetrate without touching." Id. at 1035 (¶ 15). Most importantly, however, the court found that Friley's specific intent to gratify his lust-though not an element of sexual battery-was the only reasonable inference that could be drawn from his actions. Id. at (¶ 16). In a case of first impression, the Friley court made clear that "intent can be inferred from a defendant's actions," and that "[fondling] may be a lesser-included offense to some types of sexual battery." Id. at 1034-35 (¶¶ 12, 16-17) (citing Moody v. State , 841 So.2d 1067, 1092-93 (Miss. 2003) ).

¶ 13. Then, in Jenkins , a case decided less than four years ago, our supreme court reaffirmed the principles set forth in Friley . Jenkins , 131 So.3d at 550 (¶¶ 18-19). There, the Jenkins court again held that "fondling ... is a lesser-included offense of sexual battery," and that specific, lustful intent can be inferred "from the circumstances of the situation." Id. (citing Friley , 879 So.2d at 1035 (¶ 17) ). More recently, however, this Court found likewise in Ringer v. State , 203 So.3d 794, 798-99 (¶¶ 16-17) (Miss. Ct. App. 2016). Ringer required us to determine whether there was sufficient evidence to uphold the defendant's sexual-battery charge. Ringer , 203 So.3d at 795-96 (¶ 2). Finding there was not, we reversed Ringer's conviction of sexual battery, and rendered a conviction on the lesser-included offense of fondling. Id. at 799 (¶ 18).

¶ 14. Thus, as this Court recently held in Ringer , we so find today-that "[fondling] can be a lesser-included offense of sexual battery when the penetration is alleged to have been done with a body part of the defendant and where a lustful purpose can be inferred from the circumstances of the touching." Id. at 798 (¶ 16) (citing Friley , 879 So.2d at 1034-35 (¶¶ 13-17) ). The record reveals ample evidence supporting the lesser-included offense of fondling, which allowed the jury in this case to reasonably infer Williams's actions were for the purpose of gratifying his lust or his depraved, licentious sexual desires. Thus, in light of the law as it exists today, and the evidence presented at trial, we find that the circuit court did not err in granting the lesser-included fondling instruction. This issue is without merit.

II. Denial of Motion for Mistrial

¶ 15. Williams next alleges that the circuit court erred in denying his motion for a mistrial after the State asked an improper question of Camelle during cross-examination. "Whether to grant a motion for a mistrial is within the sound discretion of the trial court. The standard of review for denial of a motion for mistrial is abuse of discretion." Ford v. State , 205 So.3d 1172, 1179 (¶ 29) (Miss. Ct. App. 2016). "The trial court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant's case." Rayner v. State , 186 So.3d 881, 893 (¶ 49) (Miss. Ct. App. 2015).

¶ 16. During the State's cross-examination of Camelle, the State asked Camelle whether it was true that Williams had previously been accused of improperly touching another child. Camelle stated that it was untrue, and that it had never happened. Following this question and answer, Williams objected and moved for a mistrial, which the circuit court ultimately denied. Beforehand, however, the circuit-court judge conducted a bench conference with the parties to discuss the subject of the motion. The State contended that Williams had "opened the door" after Camelle and Cindy Tanguis-the mother of the child that was the subject of the State's inappropriate question-had stated that they trusted Williams and had never heard of any similar prior incidents. Nonetheless, the question was found to be inappropriate.

¶ 17. As a result, the circuit court issued a limiting instruction to the jury, stating the following:

The previous question asked by the District Attorney to the witness regarding allegations of any unknown party to this action have absolutely no basis in evidence.
It was an inappropriate question. The witness will not be forced to or asked to answer or be allowed to answer the question. And you should not speculate as to what the answer should be.
I'll leave it at that, but it is not-I'm going to instruct you to totally disregard whether there's any merit to it or whether it was an inappropriate question by the District Attorney.
We're just going to forget it and move on.

Where a limiting instruction is given, "[i]t is presumed, unless otherwise shown, that the jury followed the instruction given by the trial court." Ford v. State , 147 So.3d 325, 330 (¶ 12) (Miss. 2014). Other than mere conclusory statements alleging prejudicial error, Williams has not shown that the jury disregarded the instruction. Thus, we find the circuit court did not abuse its discretion in denying Williams's motion for a mistrial. This issue is without merit.

III. Prosecutorial Misconduct

¶ 18. Building on his immediately preceding argument, Williams asserts that the State's line of questioning discussed above was highly inflammatory, thus constituting prosecutorial misconduct, and denied him his right to a fair trial. We disagree.

¶ 19. In cases where we are called upon to evaluate prosecutorial statements because of their alleged impropriety, we must first discern "whether the natural and probable effect of the improper argument of the prosecuting attorney is to create an unjust prejudice against the accused as to result in a decision influenced by the prejudice so created."

Franklin v. State , 136 So.3d 1021, 1030 (¶ 31) (Miss. 2014) (quoting Dancer v. State , 721 So.2d 583, 589 (¶ 31) (Miss. 1998) ). "Any supposed improper statements must be considered within context while also taking into account the facts surrounding the particular case." Id.

¶ 20. Williams argues that the State knew, or should have known, that its question posed to Camelle was improper, and that the primary purpose of the inquiry was to inflame the jury. Williams admits, though, that "attorneys are allowed a wide latitude in arguing their cases to the jury. However, prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury." Id. at 1031 (¶ 33). As such, a "jury's decision must be based on the evidence[;] thus any verdict based on 'bias, passion, or prejudice' will be overturned." Id. (quoting Sheppard v. State , 777 So.2d 659, 662 (¶ 10) (Miss. 2000) ).

¶ 21. As discussed above, the State asked Camelle during cross-examination whether Williams had been accused of improperly touching another child. Again, in the bench conference following Williams's objection, the State argued that the door had been opened after both Camelle and Cindy Tanguis had testified that Williams was a trustworthy individual. Despite the State's argument, the circuit court deemed it to be an inappropriate question, and issued a limiting instruction. Williams has failed to show that the jury did not adhere to the court's instruction. See Ford , 147 So.3d at 330 (¶ 12). Williams later moved for a directed verdict, which the circuit court denied.

¶ 22. Following that ruling, the State wished to make clear on the record its purpose for asking the question, and stated:

Regarding the attempted elicited testimony about [the other child's] situation, the State received information from [another witness] and we intended to ask [that witness] about her knowledge of that incident on rebuttal, but I decided not to do so in light of the [c]ourt's ruling.
We were attempting to introduce that evidence to impeach both Camelle Williams and Cindy Tanguis as saying that nothing like that had ever happened with Clyde, that he was completely trustworthy.

The court then responded, "Well, I was unaware of that. I knew that there had to be a reason you asked the question and that's why I didn't make a big issue out of it." Therefore, viewing both the State's articulated purpose (witness impeachment), and its deference to the court's ruling, in light of the context and surrounding facts of the case, we cannot say that the "natural and probable effect of the improper [comment] ... was to create an unjust prejudice" against Williams, thus resulting in a decision influenced by the alleged prejudiced so created. Franklin , 136 So.3d at 1030 (¶ 31). This issue is without merit.

IV. Limited Cross-Examination of S.M.

¶ 23. Next, Williams asserts that the circuit court improperly limited his cross-examination of S.M. This Court "review[s] a trial court's decision to limit cross-examination for abuse of discretion." Collier v. State , 183 So.3d 885, 889-90 (¶ 18) (Miss. 2016). Thus, "an abuse of discretion will be found only where the defendant shows clear prejudice from undue restraint on the defense." Id. at 890 (¶ 18).

¶ 24. Williams argues that he was directly prevented from attacking S.M.'s credibility, which he asserts was paramount to his case, after the following exchange occurred between S.M. and Williams's counsel, Glenn White:

White: Did you want to marry [Williams]?
S.M.: No. I don't want to marry an old man. I want someone my age.
White: Really? But you have a boyfriend that's about 51 years old.
S.M.: I do not have a boyfriend that's about 51 years old.

At this point in the cross-examination, the State objected under Mississippi Rule of Evidence 412, commonly referred to as the "rape shield" rule. Prior to trial, however, Williams had filed a motion pursuant to Rule 412 seeking to introduce evidence of S.M.'s past sexual behavior. After a hearing on the matter, the court denied the motion, excluding any reference to S.M.'s sexual history under Rule 412.

¶ 25. Rule 412's purpose is "to prevent the introduction of irrelevant evidence of the victim's past sexual behavior to confuse and inflame the jury into trying the victim rather than the defendant." Burgess , 178 So.3d at 1277 (¶ 32). "Pursuant to Rule 412(a), 'reputation or opinion evidence of [a victim's] past sexual behavior' is inadmissible in criminal cases involving sexual offenses." Id. Rule 412 states, in pertinent part:

(a) Prohibited Uses. The following is not admissible in a criminal case involving an alleged sexual offense:
(1) reputation or opinion evidence of a victim's past sexual behavior; and
(2) evidence of a victim's past sexual behavior other than reputation or opinion, except under subdivisions (b) and (c).
(b) Exceptions. The court may admit evidence of:
(1) specific instances of a victim's past sexual behavior:
(A) with a person other than the defendant, if offered by the defendant to prove that someone else was the source of semen, pregnancy, disease, or injury;
(B) with the defendant, if offered by the defendant to prove consent; and
(C) if constitutionally required to be admitted; and
(2) false allegations of sexual offenses made at any time before trial by the victim.

As none of these exceptions applied to the questions asked by Williams, we cannot say that the circuit abused its discretion in sustaining the State's objection under Rule 412.

¶ 26. In addition, however, the record appears to reflect that the State's objection was sustained because Williams's question failed to open the door regarding S.M.'s alleged fifty-one-year-old boyfriend. The following exchange occurred between the court and Williams's counsel:

Court: Now, there's an objection ... to the question that was asked about whether or not the witness has a 51-year-old boyfriend. The basis for the objection has been stated. Would you begin again with your response?
White: Her answer ... was that she doesn't want an older boyfriend. And the fact-
Court: An older husband?
White: Or boyfriend?
Court: So the objection is sustained.
White: Yes, Your Honor.
Court: The question is not about who she has dated or has not dated. She made a statement about who she wanted to marry later in life. Go ahead.

From this exchange, the State argues the circuit court sustained the objection because White had not laid the foundation for his question. We agree. Thus, we find no abuse of discretion by the circuit court in limiting Williams's cross-examination of S.M. in this regard. This issue is without merit.

V. Expert Witness

¶ 27. Under this issue, Williams asserts that the circuit court refused to allow him to call an expert witness on his behalf, thus depriving him of his fundamental right to a fair trial.

¶ 28. "The admission of expert testimony is within the discretion of the trial court." Galloway v. State , 122 So.3d 614, 632 (¶ 27) (Miss. 2013). "In Mississippi, expert testimony is admissible if it is 'relevant and reliable.' " Id. (quoting Ross v. State , 954 So.2d 968, 996 (¶ 57) (Miss. 2007) ). "Expert testimony is relevant if it will 'assist the trier of fact in understanding or determining a fact at issue.' " Id. "Expert testimony is reliable if it is 'based on methods and procedures of science,' not 'unsupported speculation.' " Id. "Unless th[e] Court concludes that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion, that decision will stand." Id.

¶ 29. Because the circuit court did not conduct a voir dire examination of Williams's expert, Dr. Steven Hayne, Williams argues that the circuit court improperly excluded Dr. Hayne from testifying. As the State highlights on appeal, however, the circuit court partially denied Dr. Hayne's expert testimony on procedural grounds-specifically Uniform Rule of Circuit and County Court Practice 4.04. Rule 4.04(A) states: "Absent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial ." URCCC 4.04(A) (emphasis added).

¶ 30. Here, the record reflects that trial was set for March 29, 2016. The State was not made aware that Williams intended to call Dr. Hayne to testify until March 22, 2016-seven days before trial. On March 24, 2016, the State moved to exclude Dr. Hayne's testimony pursuant to Rule 4.04(A). In Williams's response, he argued that Rule 4.04 was inapplicable, and that Dr. Hayne should not have been excluded from testifying. Though we agree that Rule 4.04 was inapplicable as to whether Dr. Hayne was permitted to testify, we do not find that the circuit court abused its discretion in its ultimate exclusion of Dr. Hayne's testimony. See URCCC 4.01 (providing Rule 4.04 applies "only in civil proceedings.").

¶ 31. A March 29, 2016 hearing was held, where the State argued that trial had previously been set and continued twice, and that Rule 4.04(A) barred Dr. Hayne from testifying, absent special circumstances. In addition, the State noted that Dr. Hayne's curriculum vitae had not been provided, and that even without obtaining Dr. Hayne's credentials, he was not qualified to testify on the topic of DNA analysis. The State also reiterated that in an agreed scheduling order, all experts were to be designated no later than September 8, 2015.

¶ 32. In its ruling, the circuit court cast much doubt on Dr. Hayne's qualifications in the field of DNA analysis-in the end, it held that, because Williams had failed to timely designate his expert under both Rule 4.04(A) and the agreed scheduling order, and had offered no proof as to Dr. Hayne's qualifications, Dr. Hayne would not be allowed to testify. To be clear, the circuit court stated:

[T]o preserve the record, the [c]ourt will say that not only was there no curriculum vitae or expert's report submitted of Dr. Hayne, there was also never any [notice], until very recently after the scheduling order deadlines, and Rule 4.04's requirements of no special circumstances exist that would allow the relaxation of the rule.

Because we find Rule 4.04 inapplicable to criminal proceedings, however-and in light of Williams's failure to timely designate Dr. Hayne-we conclude that the proper course of action by the circuit court should have been to follow the procedures set forth in Rule 9.04(I), which pertain to discovery violations. See URCCC 9.04(I) (adopting guidelines articulated in Box v. State , 437 So.2d 19, 23-25 (Miss. 1983) (Robertson, J., specially concurring)). We find such proper in light of recent decisions made by both the supreme court and this Court.

¶ 33. Nonetheless, we hold the circuit court's failure to do so inconsequential, as the lack of proof regarding Dr. Hayne's qualification as to DNA analysis was the primary reason his testimony was excluded. Upon the State's challenge to Dr. Hayne's qualifications, Williams bore the burden of establishing that Dr. Hayne was qualified to testify as to DNA. See Daubert v. Merrell Dow Pharm. Inc. , 509 U.S. 579, 592 n.10, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (holding, under Federal Rule of Evidence 104(a), proponent of expert testimony must establish witness's qualifications by preponderance of proof); see also M.R.E. 702 (Rev. 2016) (requiring "witness [be] qualified as an expert by knowledge, skill, experience, training, or education").

¶ 34. Thus, pursuant to Williams's failure to comply with the agreed scheduling order, as well as Williams's failure to show how Dr. Hayne was qualified to testify about DNA-a burden that he ultimately bore-we do not find that the circuit court's decision to exclude Dr. Hayne's expert testimony was an abuse of discretion. This issue is without merit.

VI. Confrontation Clause

¶ 35. Lastly, Williams argues that his constitutional right to confront witnesses against him was violated because Leslia Davis, the State's DNA expert, testified about a serology report performed by Amy Malone, who did not testify at trial.

¶ 36. "Under both the United States Constitution and the Mississippi Constitution, an accused has a right to confront and cross-examine the witnesses against him." Hingle v. State , 153 So.3d 659, 662 (¶ 7) (Miss. 2014) ; U.S. Const. amend. VI ; Miss. Const. art. 3 § 26. "In Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause bars the admission of testimonial hearsay unless the witness is unavailable and the defendant had a prior opportunity for cross-examination." Hingle , 153 So.3d at 662 (¶ 7) (citing Crawford , 541 U.S. at 68, 124 S.Ct. 1354 ). "Generally, testimony is a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. (internal quotation ommitted). "Laboratory reports created to serve as evidence against the accused at trial are testimonial statements covered by the Confrontation Clause." Id. ; see also Melendez-Diaz v. Massachusetts , 557 U.S. 305, 310, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) ; Bullcoming v. New Mexico , 564 U.S. 647, 664, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011).

¶ 37. In light of the principles set forth in Melendez-Diaz and Bullcoming , our supreme court has held "that a defendant's right of confrontation is satisfied by the testimony of an analyst who reviewed the report for accuracy and signed it as a technical reviewer." Hingle , 153 So.3d at 662-63 (¶ 9) (citing Grim v. State , 102 So.3d 1073, 1081 (¶ 22) (Miss. 2012) ). As such, "a supervisor, reviewer, or other analyst involved may testify in place of the primary analyst where that person was 'actively involved in the production of the report and had intimate knowledge of analyses even though [he or] she did not perform the tests firsthand.' " Grim , 102 So.3d at 1081 (¶ 22) (citing McGowen v. State , 859 So.2d 320, 340 (¶ 68) (Miss. 2003) ).

¶ 38. Here, Williams's case falls squarely within the purview of Grim , Jenkins , and Hingle , wherein a reviewer or other analyst-namely, Leslia Davis-testified about the results of a serological analysis performed by the primary analyst, Amy Malone, who did not testify at trial. At trial, Davis testified that Malone was the primary analyst for the serology report, but that Davis reviewed her work to ensure that proper methods and controls were used in accordance with Mississippi Crime Laboratory operating procedure. The State introduced the serology report into evidence, which verified that Malone performed the primary analysis, and that Davis was the "technical reviewer" of Malone's report. Following the serological analysis, Davis stated that she performed a DNA analysis, whose report was also introduced into evidence. Thus, while the serology report was performed by Malone, Davis had intimate knowledge of both the analysis and the production of the report through the role as the report's technical reviewer. And so, Davis's testimony regarding the serological analysis did not violate Williams's constitutional right of confrontation. See Hingle , 153 So.3d at 662-63 (¶ 9) (citing Grim , 102 So.3d at 1081 (¶ 22) ).

¶ 39. Lastly, we find it appropriate to address an argument raised by Williams regarding the holding in Bullcoming : that "[t]he Supreme Court has ... rejected the use of surrogates in testifying about forensic reports." To be clear, this is an inaccurate articulation of the Bullcoming Court's holding. There, the Court stated:

The question presented is whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification-made for the purpose of proving a particular fact-through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.
....
We granted certiorari to address this question: Does the Confrontation Clause permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification.

Bullcoming , 564 U.S. at 652, 658, 131 S.Ct. 2705. "Neither formulation limits the question presented to whether the only scientist or analyst who can testify is the scientist or analyst who performed the underlying analyses." Grim v. Fisher , 816 F.3d 296, 307 (5th Cir. 2016).

¶ 40. As the United States Court of Appeals for the Fifth Circuit held in Grim :

[A]t most, the holding of Bullcoming clearly establishes that, when one scientist or analyst performs a test reported in a forensic laboratory report containing a testimonial certification-made for the purpose of proving a particular fact-and the prosecution introduces the report and certification to prove that particular fact, the Confrontation Clause forbids the prosecution from proving that particular fact through the in-court testimony of a scientist or analyst who neither signed the certification nor performed or observed the test reported in the certification. Bullcoming does not clearly establish what degree of involvement with the forensic testing, beyond what was present in Bullcoming , is required of a testifying witness. In other words, at most, Bullcoming holds that if scientist A performed the test, the prosecution cannot prove a particular fact contained in scientist A's testimonial certification by offering the in-court testimony of scientist B, if scientist B neither signed the certification nor performed or observed the test. But Bullcoming does not hold that scientist B cannot testify even if he has a sufficient degree of involvement with the forensic testing .

Grim , 816 F.3d at 307 (emphasis added). Therefore, we find that Davis, as a technical reviewer, was "actively involved in the production of the report and had intimate knowledge of [the] analys[is] even though ... she did not perform the [serology] tests firsthand." Grim , 102 So.3d at 1081 (¶ 22). As such, the circuit court did not abuse its discretion by allowing Davis to testify. Williams had the opportunity to confront and cross-examine Davis at trial, which satisfied his Sixth Amendment right to confront the witness against him. This issue is without merit.

CONCLUSION

¶ 41. In sum, we find no reversible error on the part of the circuit court. Therefore, we affirm.

¶ 42. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      Because S.M. was a minor at the time that she became a victim of sexual abuse, initials will be used to protect her anonymity.

      The terms "molestation" and "fondling" are used interchangeably by this Court. In addition, Mississippi Code Annotated section 97-5-23 (Rev. 2006), the statute at issue, has also been called the "gratification of lust" statute and the "unlawful touching" statute. We will use the term "fondling" as that is the term the jury used in its handwritten verdict.

      Williams was ultimately acquitted of the attempted-sexual-battery charge related to the July 2, 2012 incident.

      Williams was ultimately convicted of two counts of fondling, a lesser-included offense of sexual battery, related to these July 28, 2012 incidents.

      Both Ladner and Camelle testified that they contacted the authorities.

      Williams was also indicted for attempted sexual battery under Mississippi Code Annotated sections 97-1-7(1) (Rev. 2006) and 97-3-95(2), which require "(1) the intent to commit sexual battery, (2) an overt act toward committing sexual battery, and (3) failure to commit sexual battery." Moore v. State , 112 So.3d 1084, 1087 (¶ 8) (Miss. Ct. App. 2013).

      We note that the Uniform Rules of Circuit and County Court relating to criminal practice have been supplanted by the Mississippi Rules of Criminal Procedure, effective July 1, 2017. But because the former rules were still in effect during Williams's trial, Rule 4.04 applies to Williams's case. The same applies to any other of the former rules cited in this opinion.

      Compare Overton v. State , 195 So.3d 715 (Miss. 2016) (finding abuse of discretion to exclude defense witnesses disclosed day before trial), with Pelletier v. State , 207 So.3d 1263 (Miss. Ct. App. 2016), cert. granted and dismissed (court evenly divided as to whether court abused its discretion by excluding defense witness disclosed after State had rested).


source: Caselaw Access Project

license: Public Domain

text:
    Kevin Darnell POWELL a/k/a Kevin Powell, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00518-COA
    Court of Appeals of Mississippi.
    August 29, 2017 Rehearing Denied January 16, 2018
    ATTORNEY FOR APPELLANT: IMHOTEP ALKEBU-LAN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KATY TAYLOR GERBER
    BEFORE IRVING, P.J., ISHEE, FAIR AND WILSON, JJ.
   ISHEE, J., FOR THE COURT:

¶ 1. On May 6, 2014, a Warren County grand jury indicted Kevin Powell for one count of sexual battery of a child under the age of fourteen in violation of Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2014). After a jury trial, Powell was found guilty. Powell was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with twelve years to serve, eight years suspended, and five years of postrelease supervision. Additionally, Powell was ordered to pay fines, restitution, and other fees totaling $6,784.50.

¶ 2. Following trial, Powell moved for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial; the trial court denied his motions. Powell now appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. In August 2013, after spending a night at Powell's house, Z.H. told her grandmother, Louise Trueheart, that Powell had been bothering her. While staying at Powell's-who is Z.H.'s uncle-Z.H. fell asleep lying on the floor with her cousins. Powell picked up Z.H. and carried her into a bedroom, where he allegedly "touch[ed] her" and "[put] his mouth on her." At trial, Louise testified that when she asked Z.H. if Powell has put his "thing" in her mouth, Z.H. said yes.

¶ 4. Next, Louise called Z.H.'s mother, Katherine Trueheart, to inform her of the incident. Katherine testified that after she asked Z.H. what happened, Z.H. told her that Powell had "touched her lady," and Powell "had his face between her legs." Then on August 12, 2013, Katherine filed a police report with the Vicksburg Police Department.

¶ 5. Later that afternoon, Powell voluntarily arrived at the Vicksburg Police Department, waived his rights, and was interviewed by Lieutenant Troy Kimble. In the interview, Powell confirmed that Z.H. spent the night. But Powell claimed that it looked as though Z.H. was masturbating while she was lying on the floor. And so, he claimed that he carried her to a bedroom, where he smelled her hands to see if she had been "touching herself." Powell claimed that when he did this, Z.H. moved, and that movement caused her pajama bottoms and underwear to slide down. Powell stated that he smelled around Z.H.'s naval. He claimed that he bumped her naval, she woke up, and then pushed his head toward her vagina. According to Powell, Z.H. said she would not tell on him.

¶ 6. Eventually, on May 6, 2014, Powell was indicted by a Warren County grand jury for one count of sexual battery of a child under the age of fourteen in violation of section 97-3-95(1)(d).

¶ 7. The Vicksburg Police Department referred Z.H. to the Mississippi Children's Advocacy Center (MCAC). At MCAC, Z.H. was interviewed by Erin Gowen-a licensed social worker. During the interview, Z.H. stated that when she spent the night at Powell's house, he "licked [her] lady" and "put his thing in [her] mouth." Z.H. further stated that [Powell] told [her] not to tell anyone."

¶ 8. At trial, Gowen testified that she had worked as a forensic interviewer for three years and had conducted over 300 forensic interviews. Gowen also testified that she had been trained in three interviewing protocols: the RATAC, Child First, and Conner House. She further explained that there was not much difference between these three interviewing protocols. Gowen testified that her report in this case was based on her use of the RATAC protocol-which was reviewed by her supervisor. Gowen also testified that she had been previously accepted as an expert witness in Hinds County Youth Court. The State then tendered, and the circuit court accepted, Gowen as an expert in the field of forensic interviewing. Gowen testified that in her opinion, Z.H.'s disclosure during the interview was consistent with a child who had been sexually abused.

¶ 9. Prior to the trial, the circuit court was informed that Powell was not communicating with defense counsel. Powell's counsel claimed that due to Powell's lack of cooperation, he did not feel that he was going to be properly prepared to go to trial. And so, his counsel asked to withdraw from Powell's case. Powell also informed the circuit court that he did not feel as though he would have adequate representation at trial. According to Powell, his counsel told him that he was not allowed to have any witnesses. But when the circuit court asked Powell what potential witnesses he had, Powell referenced a brother-in-law in California-but he could not recall his name. When the circuit court asked Powell's counsel about Powell's claim that he was advised that he could not have any witnesses, counsel stated that "[Powell] wanted to call character witnesses ...."

¶ 10. The trial court then asked Powell what the potential witness would say; Powell stated that Z.H.'s grandmother, Louise, also accused this potential witness of sexual battery of a child. And Powell stated that there was no attempt by his counsel to contact this witness. Yet when the circuit court asked Powell the potential witness's name, Powell could not recall his name. And when the circuit court asked about any other potential witnesses, Powell admitted that the others were character witnesses.

¶ 11. The next day, the circuit court asked Powell if he had obtained the name of the witness in California. Powell stated that he had not, but he knew his last name was "Dillon." Later that day, it was discovered that Louise had the contact information for her son-in-law, Marcus Dillard, who lived in California.

¶ 12. As the circuit court instructed, counsel for both parties contacted Dillard and informed the circuit court of what Dillard said. Dillard stated that Louise once told Dillard's wife that she was not comfortable with him being alone with his children, and that she did not trust him. When asked if he had specifically ever been accused of any inappropriate sexual action toward his children, Dillard said no.

¶ 13. The circuit court then instructed counsel for both parties to draft the following statement, which the circuit court read to the jury at trial:

Members of the jury, the name of Marcus Dillard has been mentioned during trial. Marcus Dillard is married to Jessica, the daughter of Louise Trueheart. If called to testify he would say he was aware that Louise Trueheart told his wife, Jessica, that Louise was not comfortable with him being alone with his children if something should happen to Jessica.
The [c]ourt is allowing this out of court statement, not for the truth of the matter asserted[,] but only for the purpose that the statement was in fact made.

¶ 14. Also, during the pretrial hearing, Powell argued that counsel did not have a defense strategy. After being asked by the circuit court when he lost faith in his attorney, Powell answered "about four months ago." Powell's counsel said that he would "abide by whatever the [circuit] [c]ourt rule[d] to the best of [his] ability." Several days later, Powell and his defense counsel proceeded to trial.

¶ 15. After Powell's trial, the jury returned a verdict of guilty. The judgment of conviction was entered on November 12, 2015. Powell then retained new counsel to represent him in his posttrial proceedings. After posttrial proceedings, Powell was sentenced to serve twenty years in the custody of the MDOC, with twelve years to serve, eight suspended, and five years of postrelease supervision. The sentencing order after the guilty verdict and after the presentence investigation was entered by the circuit court on December 10, 2015. On December 17, 2015, Powell moved for a JNOV or, in the alternative, a new trial challenging, among other things: (1) the effective assistance of trial counsel, (2) the sufficiency of the evidence, and (3) the weight of the evidence. After a hearing, the trial court denied Powell's motion. Powell now appeals.

DISCUSSION

I. Ineffective Assistance of Counsel

¶ 16. On appeal, Powell argues that his right to a fair trial and to call witnesses on his behalf was denied when his counsel mischaracterized his fact witnesses as character witnesses, and erroneously informed him that he could not call character witnesses or any other witnesses. After a review of the record and the parties' briefs, we characterize, and thus address, Powell's argument as an ineffective-assistance-of-counsel claim raised on direct appeal.

¶ 17. Rule 22(b) of the Mississippi Rules of Appellate Procedure provides:

Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record. Where the appellant is represented by counsel who did not represent the appellant at trial, the failure to raise such issues on direct appeal shall constitute a waiver barring consideration of the issues in post-conviction proceedings.

And the Mississippi Supreme Court has held:

It is unusual for [an appellate c]ourt to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal. This is because we are limited to the trial court record in our review of the claim[,] and there is usually insufficient evidence within the record to evaluate the claim .... [W]here the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant's right to argue the same issue through a petition for post-conviction relief. [An appellate c]ourt will rule on the merits on the rare occasions where (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.

Wilcher v. State , 863 So.2d 776, 825 (¶ 171) (Miss. 2003) (internal citations and quotations omitted).

¶ 18. The record does not affirmatively indicate that Powell received ineffective assistance of constitutional dimensions. Nor have both parties explicitly stipulated that the record is adequate to allow us to make findings without considering a trial judge's findings of fact. Gordon v. State , 977 So.2d 420, 425 (¶ 9) (Miss. Ct. App. 2008). As a result, we decline to address the merits of this issue. Thus, we dismiss Powell's claims under this heading without prejudice to his ability to raise it in postconviction proceedings, if he chooses to do so.

II. Designation of the Expert Witness

¶ 19. Next, Powell claims that the trial court abused its discretion in accepting Gowen as an expert witness.

¶ 20. For expert testimony to be admitted at trial, the testimony must conform to the requirements of Mississippi Rule of Evidence 702, which provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

M.R.E. 702. Expert testimony, under Rule 702, must be both relevant and reliable. Corrothers v. State , 148 So.3d 278, 294 (¶ 24) (Miss. 2014). "Testimony is reliable when it is 'based upon on scientific facts or data,' is 'the product of reliable principles and methods,' and when 'the witness has applied the principles and methods reliably to the facts of the case.' " Id. at 295 (¶ 25). "[T]he admission of expert testimony is within the sound discretion of the trial judge." Pickett v. State , 143 So.3d 596, 604 (¶ 23) (Miss. Ct. App. 2013). Unless the decision was arbitrary and clearly erroneous-amounting to an abuse of discretion-the trial judge's decision will stand. Roberts v. Grafe Auto Co. , 701 So.2d 1093, 1098 (Miss. 1997) (citing Seal v. Miller , 605 So.2d 240, 243 (Miss. 1992) ).

¶ 21. Here, Powell argues that Gowen was not qualified to testify as an expert, and because she was not qualified, her testimony was unreliable. As for her qualifications, we find that the circuit court did not err in finding that Gowen was qualified to testify as an expert in the field of forensic interviewing. First, Gowen testified that she earned a bachelor's degree in social work, and she was licensed as a social worker by the State of Mississippi. Second, Gowen testified that she had three years of experience working as a forensic interviewer, and had conducted over 300 interviews. Third, Gowen testified that she had received training in the forensic-interviewing protocols. And lastly, Gowen further testified that she had been previously accepted as an expert witness in Hinds County Youth Court.

¶ 22. Yet Powell takes issue with the fact that Gowen was unable to distinguish between the various interviewing protocols: Child First, Corner House, and RATAC. Gowen testified that at the time of Z.H.'s interview, the MCAC was using the RATAC-which was developing into Child First. And Gowen explained that the protocols had a lot of similarities, with very little difference between them. What is more, Gowen testified that not only did she adhere to the RATAC protocol when she conducted Z.H.'s interview, but the interview was reviewed by her supervisor. The record shows that Gowen testified-in detail-as to how she conducted the interview with Z.H., and she testified in detail as to what Z.H. told her. After reviewing the record, we find no indication that Gowen failed to reliably apply the principles and methods of forensic interviewing to the facts of the case. Thus we find that the circuit court judge did not abuse his discretion in admitting Gowen's expert testimony. This claim is without merit.

III. Denial of Motion for JNOV or New Trial

¶ 23. Lastly, Powell claims that the circuit court erred in denying his motion for a JNOV or, in the alternative, a new trial. A motion for a JNOV challenges the legal sufficiency of the evidence. Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005). While on the other hand, a motion for a new trial challenges the weight of the evidence. Id. at 844 (¶ 18).

¶ 24. In arguing that the circuit court erred in denying his motion for a JNOV or new trial, Powell relies not on arguments that challenge the legal sufficiency of the evidence or the weight of the evidence. Instead, Powell's arguments under this issue are related to his ineffective-assistance-of-counsel claims.

¶ 25. While the circuit court denied Powell's motion, we decline to delve into the merits of this issue on appeal, as we find that Powell's motion was untimely. Uniform Rule of Circuit and County Court Practice 10.05 required that "a motion for a new trial must be made within ten days of the entry of judgment." (Emphasis added). As for a motion for a JNOV, our supreme court has held "that a motion for a JNOV, as it relates to a criminal case, is untimely where filed beyond the ten-day limit for a motion for a new trial and beyond the term of the court." Well v. State , 73 So.3d 1203, 1206 (¶ 5) (Miss. Ct. App. 2011) (quoting McGraw v. State , 688 So.2d 764, 770 (Miss. 1997) ).

¶ 26. In this case, the record shows that Powell's judgment of conviction, though not explicitly titled as such, was entered on November 12, 2015. Under the Uniform Rule of Circuit and County Court Practice 10.05, the ten-day time limitation was measured from the date of conviction. See Allen v. State , 200 So.3d 1100, 1101 (¶ 2) (Miss. Ct. App. 2016). And so, to be timely, Powell's motion for a new trial would have needed to be filed within ten days of November 12, 2015. Instead, however, Powell's motion was not filed until December 17, 2015-well past the ten-day requirement, and also outside of the term of the court. Warren County's first November 2015 term began on Monday, November 2, 2015. The term lasted two weeks-ending on November 16, 2015. And so, the term of the court expired before the ten-day limit for filing a motion for a JNOV or, in the alternative, a new trial. This Court has held that the circuit court does not have any discretion to extend time limits for filing a motion for a JNOV or new trial. Ross v. State , 16 So.3d 47, 53 (¶ 7) (Miss. Ct. App. 2009).

¶ 27. Though the circuit court denied Powell's motion on the merits, on appeal, we find that Powell's motion was untimely, and thus, should have been dismissed. As such, we decline to address the merits of the circuit court's denial of Powell's motion for a JNOV or new trial. This issue is without merit.

CONCLUSION

¶ 28. Upon review of the record, we find no merit to any of the issues raised on appeal. Therefore, we affirm the judgment of the circuit court.

¶ 29. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., NOT PARTICIPATING.

      The name of the minor victim is changed for confidentiality purposes. Z.H. was born in 2007.

      Powell's interview was played for the jury.

      Z.H.'s interview was played for the jury.

      Gowen used anatomical drawings to determine that Z.H. used the word "lady" to mean "vagina" and the word "thing" to mean "penis."

      The RATAC interviewing protocol is not defined within the record, but RATAC is an acronym for the forensic-interview protocol of rapport, anatomy, touch inquiry, abuse scenario, and closure. See Mason v. State , 203 So.3d 732, 735 n.3 (Miss. Ct. App. 2016).

      We note that the Uniform Rules of Circuit and County Court Practice no longer govern criminal practice in Mississippi, and have been replaced by the Rules of Criminal Procedure, effective July 1, 2017. Because Powell's motion preceded this change, we apply Rule 10.05 and the accompanying precedent in this case. The rule currently in force, Rule 25.1(c), also includes a ten-day deadline. MRCrP 25.1(c).

      Powell's judgment of conviction was titled "Order Jury Verdict and Pre-Sentence Investigation."

      See State of Mississippi Judicial Directory and Court Calender (2015).


author: LEE, C.J., FOR THE COURT: CARLTON, J., DISSENTING:

text:
    The ESTATE OF Jack Howard BANKSTON, Deceased: Victoria Bankston, Appellant v. CLC OF BILOXI, LLC d/b/a Biloxi Community Living Center, Appellee
    NO. 2016-CA-01190-COA
    Court of Appeals of Mississippi.
    DISPOSITION: September 12, 2017 Rehearing Denied February 6, 2018
    ATTORNEYS FOR APPELLANT: WILLIAM HARVEY BARTON DANIELLE BREWER JONES
    ATTORNEYS FOR APPELLEE: JOHN G. WHEELER MARGARET SAMS GRATZ
    EN BANC.
   LEE, C.J., FOR THE COURT:

¶ 1. Victoria Bankston, on behalf of the estate of Jack Howard Bankston, appeals the circuit court's grant of Biloxi Community Living Center's (CLC) motion to compel arbitration. Finding error, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 21, 2012, Jack fell at his home, hitting his head and fracturing his cervical spine. He was taken to the University of Mississippi Medical Center where he underwent spinal surgery and was admitted to the ICU. While in the ICU, he suffered respiratory distress, which required an emergency bedside tracheostomy. On January 5, 2013, Jack was transferred to a long-term acute-care center, Regency, at Forrest General Hospital. Ralph C. Kahler, M.D., was his primary physician while at Forrest General from January 5, 2013, to January 30, 2013, when Jack was discharged. Dr. Kahler's discharge note indicated that Jack's diagnoses included a "closed head injury with encephalopathy related thereto" and "acute delirium secondary to [the closed head injury ]."

¶ 3. On January 30, 2013, the same date as his hospital discharge, Jack was admitted to CLC. The nurse's admission notes indicate that he still had a tracheostomy, which interfered with his ability to speak. Around 3 p.m. that same day, Jack climbed out of his nursing-home bed by crawling over the rails on the left side. He was placed back in the bed. Only a few minutes later, Jack attempted to get out of his bed by crawling over the rails on the right side. He was again placed back in the bed. Around 8:30 p.m., Jack was found lying on the floor on his back. He was taken to the emergency room at Biloxi Regional Medical Center, where he died the following day-January 31, 2013.

¶ 4. On August 11, 2014, Jack's wife, Victoria, as a representative of his estate, filed a wrongful-death complaint alleging negligence against CLC. CLC responded with a motion to dismiss and compel arbitration. Jack did not sign the nursing-home admission agreement, but Victoria had signed the admission agreement with CLC on Jack's behalf as a "family member." The admission agreement contained an arbitration clause. The circuit court held a hearing on the motion, as well as ordered supplemental briefing on the issue of whether Jack lacked capacity as defined under the controlling statute, Mississippi Code Annotated section 41-41-203(d)

(Rev. 2013). The circuit court held the following:

Upon review, the evidence, including Dr. Kahler's diagnoses, indicates that prior to his admission to CLC, [Jack] lacked capacity as he was unable to understand and to make and communicate his health-care needs and decisions. As a result, [Victoria] had the authority to act as his surrogate under [ Mississippi Code Annotated section 41-41-211(1) (Rev. 2013) ]. Accordingly, [Jack] is bound by the admission agreement and the arbitration provision therein.

¶ 5. Victoria filed a motion to reconsider, and later submitted an affidavit from Dr. Kahler in support of the motion. However, the circuit court denied Victoria's motion. Victoria now appeals, asserting that the circuit erred in: (1) finding that Victoria was a proper healthcare surrogate, (2) finding that the admission agreement was properly executed by Victoria, and (3) not reversing its decision under the motion to reconsider, in light of the filing of Dr. Kahler's affidavit. Finding the healthcare-surrogacy issue dispositive of this appeal, we decline to address Victoria's remaining issues.

STANDARD OF REVIEW

¶ 6. This Court reviews the grant or denial of a motion to compel arbitration under a de novo standard. Harrison Cty. Commercial Lot LLC v. H. Gordon Myrick Inc. , 107 So.3d 943, 949 (¶ 12) (Miss. 2013). In reviewing whether the motion to compel arbitration should have been granted or denied, we do not review or consider the merits of the underlying claim. Id. at (¶ 13).

¶ 7. The Mississippi Supreme Court has recognized the Federal Arbitration Act (FAA) as having "the authority to govern agreements formed in interstate commerce where a contractual provision provides for arbitration." Hattiesburg Health & Rehab Ctr. LLC v. Brown , 176 So.3d 17, 20 (¶ 8) (Miss. 2015) (internal quotation marks and citation omitted). Additionally, the supreme court has ruled that the "FAA is applicable to nursing-home admission agreements that contain arbitration clauses." Id. Under the FAA, this Court must first determine whether a valid arbitration agreement exists. Id. at (¶ 9).

This Court applies the law of contracts to determine if a valid arbitration agreement exists. The elements of a contract are (1) two or more contracting parties, (2) consideration, (3) an agreement that is sufficiently definite, (4) parties with legal capacity to make a contract , (5) mutual assent, and (6) no legal prohibition precluding contract formation.

Id. (internal quotation marks and citation omitted).

DISCUSSION

¶ 8. Victoria argues that the arbitration agreement was not valid, and thus the trial court erred in granting CLC's motion to compel arbitration. Specifically, Victoria argues that she did not possess the authority as Jack's healthcare surrogate-as the trial court determined-to execute the admission and arbitration agreement on Jack's behalf. We agree.

¶ 9. In Hattiesburg Health (HHRC ), the supreme court explained the proper designation of a healthcare surrogate:

Under the healthcare surrogate statutes, a third party may make healthcare decisions for another, but only if certain prerequisites are met: A surrogate may make a health-care decision for a patient who is an adult or emancipated minor if the patient has been determined by the primary physician to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available.

HHRC, 176 So.3d at 22 (¶ 17) (citing § 41-41-211(1) ).

¶ 10. In the instant case, Victoria argues that the circuit court improperly found that Jack had been determined by the primary physician to lack capacity. She contends that no such determination was made at all. CLC argues that Dr. Kahler's discharge-summary note, charted the same day Jack was admitted to CLC, and which specified that Jack's diagnoses consisted of a "closed head injury with encephalopathy related thereto" and "acute delirium secondary to [the closed head injury ]," constituted a determination of lack of capacity. CLC also points to the nurse's admission notes from the day Jack was admitted to CLC, which stated that the "patient does not speak and is confused in nature" and that he "did not acknowledge understanding." CLC argues that these medical records showed that Jack was incapacitated. The supreme court has, however, stressed a "strict interpretation of the surrogate statutes" and, in doing so, has rejected similar medical-record arguments. Id. at 23 (¶ 22).

¶ 11. With similar facts to the instant case, in HHRC ,"[a] nursing home resident's wife signed an admission agreement that contained an arbitration provision." Id. at 18 (¶ 1). "Her husband died soon after his discharge, and she brought a wrongful-death suit against the nursing home, Hattiesburg Health & Rehab Center, LLC (HHRC)." Id. "HHRC moved to stay the proceedings and to compel arbitration." Id. The trial court denied HHRC's motion, and on appeal, the supreme court affirmed. Id. One of HHRC's arguments was that the decedent's wife had executed the admission and arbitration agreement on behalf of her husband as his healthcare surrogate. Id. at 22 (¶ 17).

¶ 12. The supreme court noted that the parties had attached medical records, which they alleged showed that the decedent was incapacitated based on his medical diagnoses. Id. at (¶ 19). But the supreme court rejected the notion that the attaching of medical records was sufficient as a determination of lack of capacity:

[T]here is simply no evidence in the record that [the decedent's] primary physician ever made any capacity determination. It is true that [the decedent's wife] attached some medical records to her response to the motion to compel, but we found nowhere in the record ... any indication that [the decedent's primary physician] had determined that [the decedent] lacked capacity.

Id.

¶ 13. Similarly, here, CLC relies on Jack's medical records as sufficient for the prerequisite that the primary physician had made a determination that he lacked capacity. But, like HHRC , nowhere in the record is there an indication that Jack had been determined by Dr. Kahler to lack capacity. Medical records indicating Jack's diagnoses and symptomatology are not the equivalent of an affirmative determination by a physician that the patient lacks capacity as defined by the statute. Additionally, the nurse's admission note stating that Jack exhibited confusion and did not indicate understanding, which CLC argues supports the finding that Jack lacked capacity, is of no bearing. The supreme court in HHRC makes it clear that a nonphysician's "opinion is irrelevant to this inquiry under Section 41-41-211." Id. at 23 (¶ 22). Furthermore, Dr. Kahler later executed an affidavit stating that he was Jack's primary physician and that "[d]ue to the lack of medical evidence, [could not] form a medical opinion one way or the other as to whether [Jack] needed a health care surrogate at the time of his discharge on January 30, 2013."

¶ 14. A determination that an individual lacks capacity to make healthcare decisions is not one for a court to make after reviewing a patient's medical records. "Our Legislature has very specifically provided the manner in which the presumption that an individual has capacity to make a health-care decision may be rebutted: by a primary physician determining lack of capacity." Id. (quoting Adams Cmty. Care Ctr. v. Reed , 37 So.3d 1155, 1159 (¶ 10) (Miss. 2010) (citing § 41-41-211(1) )). Here, the circuit court stated that "[u]pon review, ... the evidence, including Dr. Kahler's diagnoses, indicates that prior to his admission to CLC, [Jack] lacked capacity. ..." However, the standard is not whether the court, in its opinion, finds that the evidence indicates that the patient lacked capacity. The standard is whether the primary physician has made the determination that a patient lacked capacity. Here, there is no evidence in the record that Dr. Kahler made the determination that Jack lacked "capacity" as that term is defined under section 41-41-203(d).

¶ 15. The dissent argues that the trial court should be affirmed because "the discharge summary note indicated that Jack lacked capacity ..." and because the "trial court also opined that Dr. Kahler's notes in Jack's medical records indicated that Jack lacked capacity." However, the dissent's rationale is not in accord with our law as set forth by the Legislature. It is not for the trial court, or this Court, to determine whether Jack lacked capacity or to attempt to interpret whether medical records indicated a lack of capacity. It matters not that Jack's medical records indicated he had suffered a closed head injury and exhibited acute delirium, or what symptoms nonphysician medical personnel charted. It matters not that this Court or other reasonable minds may conclude that Jack lacked capacity. Furthermore, in the instant case, it matters not whether Jack actually lacked capacity. What matters-and what section 41-41-211 requires-is whether a physician has made an affirmative finding that a patient lacks capacity. The dissent seeks to assert its own judgment where the Legislature has explicitly required the judgment of a physician.

¶ 16. "This Court must follow the plain and unequivocal language of the statute and require that, in order for one to act as a health-care surrogate, there must first be a determination of a lack of capacity by a patient's primary physician." HHRC , 176 So.3d at 23 (¶ 22) (quoting Adams Cmty. Care , 37 So.3d at 1159 (¶ 11) ). Because there is no evidence that Dr. Kahler determined that Jack lacked capacity, Victoria lacked the authority to act as his healthcare surrogate and thus bind him to arbitration. Again, as this issue is dispositive, we decline to address Victoria's remaining issues. Accordingly, we hold that the trial court erred in granting CLC's motion to compel.

¶ 17. REVERSED AND REMANDED.

IRVING, P.J., ISHEE, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J. BARNES, J., NOT PARTICIPATING.

CARLTON, J., DISSENTING:

¶ 18. I respectfully dissent. I would affirm the trial court's finding that Dr. Kahler's discharge-summary note indicated that Jack lacked capacity as defined by the Uniform Health-Care Decisions Act (the Act). See Miss. Code Ann. § 41-41-211(1)

(Rev. 2013). As a result of this finding, the trial court correctly found that Victoria, as Jack's spouse, was therefore authorized under the Act to enter into CLC's admission and arbitration agreement on behalf of Jack, thus binding Jack to the agreement. See Miss. Code Ann. § 41-41-211(2)(a).

¶ 19. The record reflects that on January 30, 2013, Dr. Kahler entered a discharge summary for Jack upon his discharge from Forrest General Hospital and subsequent transfer to CLC. The trial court observed that in the discharge summary, Dr. Kahler, as Jack's primary-care physician, diagnosed Jack with a "closed head injury with encephalopathy" and "acute delirium secondary" to his closed head injury. The discharge summary also reflected that at the time of his transfer, Jack had a tracheostomy and was unable to speak. Jack's patient-care report provided by American Medical Response, the company transporting Jack from Forrest General to CLC, further documented that Jack did not speak and was "confused in nature." Additionally, patient notes provided by a nurse on January 30, 2013, reflected that Jack "did not acknowledge understanding."

¶ 20. Based on the evidence presented, the trial court opined that Dr. Kahler constituted Jack's primary-care physician as defined by Mississippi Code Annotated section 41-41-203(o) (Rev. 2013). Medical records presented at trial, showing that Dr. Kahler was responsible for and assumed primary care of Jack while at Forrest General Hospital, support this finding. The trial court also opined that Dr. Kahler's notes in Jack's medical records indicated that Jack lacked capacity as defined by statute.

¶ 21. After reviewing the record, I find that the evidence presented at trial clearly supports the trial court's finding that Victoria possessed authority as Jack's surrogate under the Act to bind him to the admission and arbitration agreement. See Brown , 949 So.2d at 736-37 (¶¶ 10-11) (overruled on other grounds) (discussing a surrogate's authority to bind a patient to an arbitration agreement contained in a nursing-home admission agreement pursuant to section 41-41-211 ). Based upon the foregoing, I submit that the trial court properly granted CLC's motion to dismiss and compel arbitration.

GRIFFIS, P.J., JOINS THIS OPINION.

      Section 41-41-211 provides:
      (1) A surrogate may make a health-care decision for a patient who is an adult or emancipated minor if the patient has been determined by the primary physician to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available.
      (2) An adult or emancipated minor may designate any individual to act as surrogate by personally informing the supervising health-care provider. In the absence of a designation, or if the designee is not reasonably available, any member of the following classes of the patient's family who is reasonably available, in descending order of priority, may act as surrogate:
      (a) The spouse, unless legally separated;
      (b) An adult child;
      (c) A parent; or
      (d) An adult brother or sister.

      See Covenant Health & Rehab. of Picayune L.P. v. Brown , 949 So.2d 732, 736-37 (¶¶ 10-11) (Miss. 2007) (overruled on other grounds) (admitting physician at hospital found that Brown lacked mental capacity to manage her affairs prior to signing of hospital's admission agreement).


author: GREENLEE, J., FOR THE COURT:

text:
    Kenneth HARTZOG a/k/a Kenneth K. Hartzog a/k/a Kenneth Keith Hartzog, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00434-COA
    Court of Appeals of Mississippi.
    December 5, 2017 Rehearing Denied April 17, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. Kenneth Hartzog was indicted for one count of being a felon in possession of a firearm in violation of Mississippi Code Annotated section 97-37-5 (Rev. 2014). After a trial by jury, Hartzog was found guilty as charged, and was sentenced as a habitual offender to serve ten years in the custody of the Mississippi Department of Corrections. He now appeals this conviction. Finding no error, we affirm.

BACKGROUND

¶ 2. On the morning of October 5, 2014, Jackson Police Department Officers Melvin Williams and Jeremy McCinnis were called to a home near Raymond Road, after receiving information that shots were fired there. After arriving at the residence, the officers cautiously approached, hearing what they believed to be a loud verbal altercation between a male and female. The front door was slightly open, and Officer Williams pushed on it. Then, he knocked and announced his presence. Hearing no response or acknowledgment, Officer Williams pushed the door completely open, and noticed a man and woman in the living room. The man and woman, undisturbed by the officers' arrival, continued their apparent argument.

¶ 3. Officer Williams testified that he knew they were responding to a call about shots being fired, so he attempted to see what was in the male's hands; however, he could only see the male's left hand, which held a cell phone. But Officer McCinnis testified he saw the man holding a gun, and did not see what was in the man's other hand.

¶ 4. Upon noticing the officers, the man walked towards the kitchen. Officer McCinnis testified that during that time, the man quickly went to the kitchen area, then threw the gun on the floor, and attempted to flee. Officer McCinnis then came into contact with the man, tackled him to the ground, and placed him in handcuffs. Both the man and woman were briefly questioned at the scene, and the woman, who owned the home, told officers the man was her boyfriend and he had accused her of cheating on him. The man was arrested, and his true identity, Hartzog, was discovered later. The woman was identified as Rosina Griffin.

¶ 5. After his arrest, Hartzog signed a Miranda waiver, and agreed to talk to Investigator Craig Crowley. During the interview, which was conducted after Hartzog was charged with being a felon in possession of a firearm, Hartzog admitted he obtained the gun from a back bedroom and shot it. The interview was admitted into evidence as Exhibit 4, and Hartzog's account of what happened is as follows.

¶ 6. Hartzog said he woke up that morning and realized his girlfriend was not in bed, so he went to look for her. He explained that Griffin had to work at 8 a.m., so she had gone to the front of the house to work out. When Hartzog came and found her, he noticed the door was messed up, and asked Griffin what had happened. Hartzog said Griffin had not been paying attention and had not noticed the damage. Then, Hartzog asked Griffin where the bat was that she sometimes kept by the door. Griffin told him she did not have the bat anymore, but told him she did have a gun. Although Hartzog did not see anyone who might have done the damage, Hartzog said he went and got the gun, stepped outside the front door, and fired a shot in the air. He explained that he thought Griffin's daughter may have gone to call the police. But, when the police arrived, they came straight towards him and grabbed him, even though he warned the police that the person who did the damage was going to get away. When Hartzog was asked whether the police ever found a suspect, he explained the police did not find anyone because they did not look.

¶ 7. Griffin, Hartzog's girlfriend at the time of his arrest (and wife at the time of his trial), testified she was at home with Hartzog on the day in question. Griffin stated, on that night, she heard a noise that woke her up, so she awoke Hartzog. She said, at some point, they noticed someone had kicked the door in, someone called the police, and the police came to the home. Griffin explained that when the police arrived, she and Hartzog were not arguing. Instead, they were hysterical because someone kicked the door in. Griffin expressed that the officers never asked about the alleged burglary and, when they arrived, they immediately tackled Hartzog. Griffin tried to explain to the officers that they had the wrong person-she thought the police were there to investigate a burglary. However, when she told the officers someone else had kicked the door in, Griffin testified that Officer McCinnis told her to shut up and accused her of lying. She also said he threatened that if she did not tell him she had a gun, he would take her to jail and call DHS to pick up her children, who were also at the home. Griffin testified the police must have thought Hartzog was the aggressor, even though he did not run or make any sudden movements.

¶ 8. Contrary to Hartzog's statement, Griffin testified Hartzog was only holding a cell phone. She said she did have a gun in the house, but it was six or seven steps away from Hartzog-inside a box-and she never told Hartzog it was there. Griffin stated that when Officer McCinnis threatened to call DHS, Hartzog almost started crying because he did not want anything to happen to her or the children. She reiterated that she never saw Hartzog with a gun, and did not see him fire a gun. Although Griffin was aware Hartzog told the police that Griffin had been working out before they arrived, Griffin testified that he must have said that because he was threatened. Griffin was also aware Hartzog admitted to holding the gun and shooting it that night, but had no explanation for that admission.

¶ 9. The jury found Hartzog guilty as charged, and on November 24, 2015, Hartzog was sentenced to serve ten years in the custody of the Mississippi Department of Corrections, without the benefit of early release or probation. The court also ordered Hartzog to participate in alcohol and drug treatment while incarcerated.

DISCUSSION

I. Whether Hartzog timely appealed.

¶ 10. Hartzog filed a motion for appointment of counsel and other relief on December 23, 2015, twenty-nine days after his sentence was imposed. In his motion, Hartzog informed the court he desired an appeal, his hired attorney had yet to perfect an appeal, and he could not afford to hire appellate counsel or pay the necessary filing fees and costs associated with preparing the record for an appeal. On March 21, 2016, the trial court entered an order authorizing an appeal in forma pauperis and appointing appellate counsel, in which the trial court found Hartzog indigent and entitled to file an out-of-time notice of appeal. Thereafter, Hartzog's appointed counsel filed a notice of appeal on March 28, 2016. The State now challenges Hartzog's entitlement to appeal. Jurisdiction is a question of law which this Court reviews de novo. Busby v. Anderson , 978 So.2d 637, 639 (¶ 6) (Miss. 2008).

¶ 11. Mississippi Rule of Appellate Procedure 4(a) requires that a notice of appeal be filed within thirty days after the entry of the judgment or order appealed from. M.R.A.P. 4(a). Rule 4(g) allows the trial court to extend the time for filing a notice of appeal upon a timely motion. M.R.A.P. 4(g). A motion for extension filed before the expiration of the thirty-day period in 4(a) may be granted for good cause and may be ex parte. Id. The trial court may grant a party an additional thirty days in which to file his or her notice of appeal. Id.

¶ 12. Hartzog's motion for appellate counsel and for other relief was filed within thirty days after the date the judgment was entered. The motion stated: "[I]f it has been more than thirty days from the date that Judgment was entered herein, or more than thirty days since denial of [the] post[-]trial motion, Defendant prays for authority from the court to file [an] appeal out of time pursuant to Rule 4 [.]" Hartzog further indicated he was indigent and could not afford to hire appellate counsel or pay the filing fees and costs associated with preparing the record for appeal. Given these circumstances, we find good cause existed under Rule 4 for the trial court to grant Hartzog additional time to file his notice of appeal. See M.R.A.P. 4. Once appointed, Hartzog's counsel perfected the appeal within the trial court's thirty-day extension. We therefore find Hartzog's appeal was timely, and proceed to ruling on the merits of the case.

II. Whether the jury was adequately instructed.

a. Denial of Defense's Proposed Instruction

¶ 13. At trial, defense counsel submitted the following jury instruction, D-6: "The Court instructs the jury if you believe from the evidence that the defendant did not know that there was a deadly weapon in the house, then it is your sworn duty to find the defendant not guilty." After taking the instruction under advisement, the trial court found it unnecessary. On appeal, Hartzog argues the trial court abused its discretion when it denied D-6 "because it was a correct statement of the law, it was supported by the evidence in this case, and it supported the theory of defense." He also argues that none of the instructions given instructed the jury it must find Hartzog "knowingly and consciously possessed the weapon" in order to convict him.

¶ 14. Jury instructions are not reviewed in isolation, but read as a whole to determine if the jury was properly instructed. Milano v. State , 790 So.2d 179, 184 (¶ 14) (Miss. 2001). The instructions must fairly announce the law of the case and not create injustice. Id. "In other words, if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results." Id. While a defendant has a right to present his theory of the case, that right is not absolute and trial courts "may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions[,] or is without foundation in the evidence." Davis v. State , 18 So.3d 842, 847 (¶ 15) (Miss. 2009).

¶ 15. In this case, the jury was instructed on the essential elements of possession, as our law requires. Under Mississippi Code Annotated section 97-37-5, the State must prove two things for a person to be convicted of felon in possession of a weapon: (1) the defendant was in possession of a firearm, and (2) the defendant had previously been convicted of a felony crime. Cooley v. State , 14 So.3d 63, 66 (¶ 13) (Miss. Ct. App. 2008). Jury instruction S-1A instructed the jury it must find Hartzog not guilty unless it found, beyond a reasonable doubt, Hartzog did "willfully , unlawfully have in his possession a Smith and Wesson handgun." As the Mississippi Supreme Court has acknowledged, "[i]t is inconceivable that an act willfully done is not also knowingly done." Moore v. State, 676 So.2d 244, 246 (Miss. 1996) (quoting Ousley v. State , 154 Miss. 451, 122 So. 731, 732 (1929) ). Therefore, although the jury was not instructed it must find Hartzog "knowingly" possessed the gun, the instructions that were given covered the issue of "knowing possession." Further, when read as a whole, the instructions properly stated the law and required the jury to find that all elements of the offense had been proved before Hartzog could be found guilty.

b. Supplemental Instruction

¶ 16. During deliberations, the jury asked the trial court three questions concerning the definition of possession. In response to the first two questions, the court informed the jury it should review the evidence and instructions presented, and should continue deliberating. Then, the jury asked a third question requesting information about "Mississippi law concerning convicted felon and possession." The trial court responded by providing the following written instruction, C-10:

The Court instructs the jury that in determining whether the defendant, Kenneth Hartzog, was in possession of a weapon, it need not be actual physical possession in the defendant's hands or on his person. Constructive possession may be shown by establishing, beyond a reasonable doubt[,] that the defendant was aware of the presence and character of a particular item and that it was subject to his dominion or control.
Ladies and gentlemen, you are further reminded to read and take all of these instructions as a whole. Although the court is giving a new instruction, you are not to single out any one instruction over the others and they are to be considered as a whole.

¶ 17. Hartzog now argues C-10 should not have been given because: (1) constructive possession was a new prosecution theory that the jury was unfamiliar with, and (2) the instruction prejudiced Hartzog's defense by hindering his attorney's ability to provide effective counsel. A trial court's decision to grant a supplemental instruction is reviewed for an abuse of discretion. Hughes v. State , 983 So.2d 270, 280 (¶ 41) (Miss. 2008).

¶ 18. The guideline to follow when a jury has a question during deliberations was enunciated in Girton v. State , 446 So.2d 570, 572 (Miss. 1984) :

Our first recommendation is that the circuit judge determine whether it is necessary to give any further instruction. Unless it is necessary to give another instruction for clarity or to cover an omission, it is necessary that no further instruction be given. Of course, a circuit judge may realize such a necessity even in the absence of an inquiry from the jury, and under such circumstances quite properly may give the jury additional written instructions.

Id.

¶ 19. Rule 3.10 of the Uniform Rules of Circuit and County Court Practice states in pertinent part, as follows:

If the jury, after they retire for deliberations, desires to be informed of any point of law, the court shall instruct the jury to reduce its question to writing and the court in its discretion, after affording the parties an opportunity to state their objections or assent, may grant additional written instructions in response to the jury's request. If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give an appropriate instruction.

URCCC 3.10. Based upon the plain language of Rule 3.10 and the precedent cited above, the trial court was within its authority to issue C-10.

¶ 20. Again, in determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. Milano , 790 So.2d at 184 (¶ 14). If the instructions, when so read, fairly announce the law of the case and create no injustice, no reversible error will be found. Id.

¶ 21. We find the jury was fairly and fully appraised of the applicable law through the instructions given. Possession can be proven by showing the accused either actually possessed or constructively possessed a weapon. Short v. State , 929 So.2d 420, 427 (¶ 21) (Miss. Ct. App. 2006). Constructive possession requires that the defendant was aware of the presence and character of the particular item, and was intentionally and consciously in possession of it. Curry v. State , 249 So.2d 414, 416 (Miss. 1971). Constructive possession may be shown by establishing the item involved was subject to his dominion or control. Id. Here, C-10 instructed the jury it had to find beyond a reasonable doubt that (1) Hartzog was aware of the presence and character of a particular item, and (2) the item was subject to Hartzog's dominion and control. In addition, S-1A contained language to the effect of proving Hartzog "intentionally and consciously" possessed the gun. We therefore find that the jury was fairly and adequately instructed on constructive possession. This issue is without merit.

CONCLUSION

¶ 22. The jury was fairly and adequately instructed on both actual and constructive possession. Denial of jury instruction D-6 was not error; read as a whole, the jury instructions fairly and adequately covered the issue of possession. Further, instruction S-1A covered the issue of "knowing possession." The trial court was within its discretion to issue a supplemental written instruction under Rule 3.10 following the jury's request for additional information.

¶ 23. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, WESTBROOKS AND TINDELL, JJ., CONCUR.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Neither officer recalled any report of a house burglary.

      Officer McCinnis denied making any threats to Griffin or Hartzog, and both officers explained Griffin was not arrested because there was no reason to arrest her.

      Hartzog asserts several other arguments which presume the trial judge did not instruct the jury on the elements of constructive possession. We decline to address those arguments, as that presumption is incorrect. It is clear from the record in this case that the court provided the jury with a supplemental written instruction covering constructive possession. See Suppl. C.P. 11. The full text of the supplemental instruction is found in the jury-instruction portion of the record, but not in the transcript portion, which only refers to the supplemental instruction.

      Effective July 1, 2017, the Uniform Rules of Circuit and County Court Practice were supplanted by the Mississippi Rules of Criminal Procedure. We apply the former rule here because it was in effect when Hartzog's trial took place.


author: BARNES, J., FOR THE COURT:

text:
    Joseph Paul PURVIS a/k/a Joseph P. Purvis, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CA-00985-COA
    Court of Appeals of Mississippi.
    December 5, 2017 Rehearing Denied April 17, 2018 Certiorari Denied April 19, 2018
    ATTORNEY FOR APPELLANT: BRENT M. BRUMLEY
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KAYLYN HAVRILLA MCCLINTON
    BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Joseph Purvis appeals the Rankin County Circuit Court's denial and dismissal of his motion for post-conviction relief (PCR). Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In February 1995, Purvis was indicted for rape. The charge stemmed from a blind date with the victim on New Year's Eve of 1994. That night, Purvis was arrested and spent twelve days in jail, when he was released on bond. Assigned a public defender, Purvis was arraigned and pleaded not guilty to rape on March 24, 1995. On the same date, an order set trial for June 27, 1995. A bench warrant was issued for Purvis on June 16, 1995, with the handwritten notation "no bond!" It is unclear from the record whether Purvis was taken into custody at that point.

¶ 3. In July 1995, the case was continued until October 1995 due to a congested docket. The record shows the case was continued several times. In June 1996, Purvis's public defender requested that Purvis's case be reassigned as he had a conflict-counsel had represented the victim on a DUI in the past and was then representing her in a civil matter. In April 1997, the case was continued again to give the parties additional time to investigate the facts and continue plea negotiations. In May 1999, the case was set for trial in June 1999. The record indicates a second bench warrant was issued for Purvis in September 2000.

¶ 4. Purvis claims that he regularly checked in with his bond company or counsel, but nothing was happening on his case. Eventually, he stopped checking in. Then, on September 6, 2001, Purvis was arrested and taken to the Rankin County jail. He was appointed counsel, who advised him that if he pleaded guilty to sexual battery, the lesser-included charge of rape, he could go free immediately. Purvis entered a guilty plea on the same day, and received a suspended sentence of seven years, with three years of supervised probation. In October 2002, Purvis's probation status was changed to unsupervised.

¶ 5. On April 27, 2016, Purvis filed a PCR motion claiming his guilty plea was invalid and his counsel was ineffective. Purvis contended that when he pleaded guilty to sexual battery, he was not told that he would have to register as a sex offender for life. Further, he argued that his counsel did not advise him that the statute of limitations had run on the sexual-battery charge, nor did counsel investigate his case or request any discovery. Simultaneously, Purvis filed a discovery motion for the evidence in the State's file, which he claimed would prove that had his counsel requested this evidence, he would have recommended Purvis reject the plea deal.

¶ 6. On June 20, 2016, the trial court entered an order denying and dismissing Purvis's PCR motion. The trial court stated that because Purvis was no longer in custody under the conviction and sentence of which he complained, he lacked standing to bring his PCR motion; thus, the court lacked jurisdiction. Additionally, the trial court noted Purvis's motion was time-barred, and no fundamental-rights exceptions applied. Finally, the trial court ruled that Purvis's argument about a statute-of-limitations defense was waived by entry of a guilty plea. Purvis timely appealed.

STANDARD OF REVIEW

¶ 7. The trial court's denial or dismissal of a PCR motion is reviewed for an abuse of discretion. Wallace v. State , 180 So.3d 767, 769 (¶ 7) (Miss. Ct. App. 2016). The appellate court will not disturb the trial court's factual findings unless they are clearly erroneous. Questions of law are reviewed de novo. Moore v. State , 986 So.2d 928, 932 (¶ 13) (Miss. 2008).

ANALYSIS

¶ 8. The trial court denied and dismissed Purvis's PCR motion because at the time of its filing, in April 2016, Purvis was no longer under the conviction and sentence of which he complained. We agree with the trial court that Purvis lacks standing to challenge his conviction and sentence.

¶ 9. At the time of Purvis's conviction in September 2001, Mississippi Code Annotated section 99-39-5(1) (Rev. 2000) stated that those who had standing to file a PCR motion were "[a]ny prisoner in custody under sentence of a court of record of the State of Mississippi." Purvis did not qualify as he was not "in custody," but received a suspended sentence and probation. Then, during the 2009 legislative session, section 99-39-5(1) was amended to include more specific descriptions of individuals who may file a PCR motion, including those on probation or subject to sex-offender registration:

Any person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated, civilly committed, on parole or probation or subject to sex offender registration for the period of the registration or for the first five (5) years of the registration, whichever is the shorter period.

Miss. Code Ann. § 99-39-5(1) (Rev. 2015). Purvis did not meet the requirements under this version of the statute, either. He was not incarcerated or on probation in April 2016 when he filed his PCR motion. Further, Purvis's five-year period for sex-offender registration had ended prior to his filing.

¶ 10. Prisoners cannot collaterally attack their convictions if they lack standing.

See Wilson v. State , 76 So.3d 733, 736 (¶ 13) (Miss. Ct. App. 2011) ; Wilson v. State , 990 So.2d 828, 830 (¶¶ 6-7) (Miss. Ct. App. 2008). Purvis had no standing before the trial court as he was never incarcerated; his PCR motion was filed after he had fully served his probation, and more than five years after his registration as a sex offender.

¶ 11. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      Although neither the plea agreement nor the court's order states when Purvis had to register as a sex offender, under the statute he must "register with the responsible agency within three business days of the date of judgment," or September 6, 2001, since he was not sentenced to incarceration. See Miss. Code Ann. § 45-33-25(1) (Rev. 2015).