author: WESTBROOKS, J., FOR THE COURT:

text:
    Dezjon DANIELS a/k/a Nookie, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00501-COA
    Court of Appeals of Mississippi.
    August 15, 2017 Rehearing Denied January 2, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JOSEPH SCOTT HEMLEBEN
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. After a two-day trial, Dezjon Daniels was convicted of sexual battery in the Circuit Court of Pike County. Daniels was sentenced to thirty-five years in the custody of the Mississippi Department of Corrections (MDOC), with twenty-five years to serve, ten years suspended, and five years of postrelease supervision (PRS). Daniels was also ordered to pay $5000 in restitution to the Crime Victims' Compensation Fund. After the verdict, the trial court denied Daniels's motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. On direct appeal, Daniels raises three issues. After review of the record, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On or about July 23, 2014, Pamela Ard reported an incident of sexual battery to Detective Todd Dillon, an investigator with the Pike County Sheriff's Department. Ard reported her son, H.A., had been sexually molested or raped by Daniels or "Nookie." Daniels and H.A. are cousins, and Ard regularly took her children, H.A. and P.A., to stay with Daniels and his mother, Linda Stalling. At the time of this incident, H.A. was either nine or ten years old, and Daniels was at least twenty-four months older than H.A. Daniels was nineteen years old.

¶ 3. H.A. was interviewed at the Children's Advocacy Center by forensic interviewer Jade Douglas. H.A. informed Douglas that Daniels's "front went inside of his back." H.A. and Daniels were left alone one day while Stalling, P.A., and other cousins went to the store. H.A. asked Daniels if he could play the video game that Daniels was playing. H.A. stated Daniels told him that in order to play the game, H.A. had to give him "some booty" or have sex. H.A. stated he went into the bathroom, pulled down his pants, put his hands on the toilet, then Daniels "put his thing in his thing." It was during the interview that Douglas learned H.A. was referring to Daniels's penis entering H.A.'s anus.

¶ 4. At trial, Ard testified she frequently dropped off her children at Stalling's house, because Stalling babysat. Ard stated H.A. had been trying to tell her something, but she kept ignoring him. Finally, H.A. told her of the abuse that occurred at Stalling's house. Ard testified she called Stalling and threatened to tell police if Stalling and Daniels did not meet her at her house to discuss the incident in person. Upon arrival, Ard confronted Daniels. Ard further testified she asked Daniels if he had sex with H.A., and Daniels replied, "If he said I did it, then I did it." Ard notified police shortly after the exchange with Stalling and Daniels.

¶ 5. Detective Dillon, Douglas, P.A., and H.A. testified at trial for the State. Daniels testified at trial and vehemently denied abusing H.A. Following a two-day trial, Daniels was found guilty of sexual battery and later sentenced to thirty-five years in the custody of the MDOC, with ten years suspended and five years of PRS. Daniels filed a motion for a JNOV or, in the alternative, a new trial. After a hearing, the trial court denied Daniels's motion. Daniels now timely appeals.

DISCUSSION

I. Whether the trial court erred in admitting certain expert testimony.

¶ 6. This Court has previously held that "the admission of expert testimony is governed by Rule 702 of the Mississippi Rules of Evidence and caselaw, specifically Mississippi Transportation Commission v. McLemore , 863 So.2d 31 (Miss. 2003)." Carter v. State , 996 So.2d 112, 116 (¶ 13) (Miss. Ct. App. 2008). Rule 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

M.R.E. 702.

¶ 7. "[T]he admission of expert testimony is within the sound discretion of the trial judge." Carter, 996 So.2d at 116 (¶ 13) (citing McLemore , 863 So.2d at 34 (¶ 4) ). "Therefore, the decision of a trial judge will stand unless we conclude that the decision was arbitrary and clearly erroneous, amounting to an abuse of discretion." Id. (citation and quotation marks omitted).

¶ 8. Also, "the trial court must engage in a two-pronged inquiry, determining whether the expert testimony rests on a reliable foundation and is relevant to the matter." Worthy v. McNair , 37 So.3d 609, 615 (¶ 16) (Miss. 2010). Furthermore, "regarding the reliability prong the testimony must be grounded in the methods and procedures of science, not merely a subjective belief or unsupported speculation." Id. (citing McLemore , 863 So.2d at 36 (¶ 11) ); see also Daubert v. Merrell Dow Pharm. Inc. , 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Daniels asserts Douglas's opinion was based on speculation, not reliable scientific principles and methods applied to the facts of the case. However, we disagree. This is an excerpt of Douglas's testimony on direct examination:

Q. Can you tell us what your opinion is as to whether or not-can you tell us what your opinion is as to his consistency with regard to children that have suffered sexual abuse?
A. The consistency comes with being able to provide the details, the sensory details of how it felt, the position in which his body was at the time of the alleged incident, knowing that it was inside or outside of his, what he calls, back. And being able to know that your pants were up or down and how they got down. All of those play into consistent statements of a child who has been sexually abused.

¶ 9. Daniels's trial counsel objected to Douglas being proffered as an expert witness. Douglas has a master's degree in social work. She trained for the ChildFirst forensic interviewing protocol through the National Child Protection Training Center. She has interviewed over 900 children regarding alleged sexual abuse, alleged physical abuse, and witnesses to violent crime. Douglas relied on her training in gathering as much information as possible from H.A. Therefore, we find no abuse of discretion in the trial court's decision accepting Douglas as an expert witness in forensic interviewing.

¶ 10. Further, Daniels argues Douglas's testimony impermissibly passed judgment on whether he was the specific perpetrator of the alleged abuse. The following is an excerpt from Douglas's testimony at trial during direct examination:

Q. Did you form an opinion about [H.A.'s] statements to you with regard to its consistency in your interview?
A. Yes.
Q. Can you tell us what your opinion is as to whether or not-can you tell us what your opinion is as to his consistency with regard to children that have suffered sexual abuse?
A. The consistency comes with being able to provide the details, the sensory details of how if felt, the position in which his body was at the time of the alleged incident, knowing that it was inside or outside of his, what he calls, his back. And being able to know that your pants were up or down and how they got down. All of those play into consistent statements of a child who has been sexually abused.
Q. And did you form an opinion in this case?
A. Yes.
Q. And what was that opinion?
A. It was consistent with the allegations of sexual abuse by Dezjon Daniels.

¶ 11. The Mississippi Supreme Court has held that "the expert should not be permitted to pass judgment on whether the defendant was the specific perpetrator." Smith v. State , 925 So.2d 825, 838 (¶ 31) (Miss. 2006). However, we find that Douglas's testimony did not conclude that Daniels was the perpetrator. Douglas's testimony pertains to H.A.'s credibility rather than H.A.'s veracity. The Supreme Court has previously held that "any opinions as to a witness's veracity should generally be excluded, unless otherwise admissible." Id. at 839 (¶ 33). However, "[e]vidence that [an] interview[ ] w[as] credible, i.e.[,] capable of being believed, [i]s properly admitted." Id. at 838 (¶ 32).

¶ 12. Furthermore, Douglas found that H.A.'s characteristics were consistent with children who had been abused. "While an expert may not opine that an alleged child-sexual-abuse victim has been truthful, the scope of permissible expert testimony under Rule 702 includes an expert's opinion that the alleged victim's characteristics are consistent with those of children who have been sexually abused." Lattimer v. State , 952 So.2d 206, 221 (¶ 38) (Miss. Ct. App. 2006) (citation omitted).

¶ 13. Additionally, the jury examined the videotaped interview between Douglas and H.A. The jury also heard the testimony of Daniels and were able to draw their own conclusions regarding other witness testimony. "As always, the jury has the prerogative to accept or reject, in whole or part, the testimony of any witness, expert or lay." Smith , 925 So.2d at 839 (¶ 33). Accordingly, we find no abuse of discretion in the trial court's decision to overrule the objection allowing Douglas's expert testimony.

II. Whether admission of H.A.'s forensic medical records violated Daniels's Sixth Amendment right to confrontation, and whether trial counsel's stipulation of the records constituted ineffective assistance of counsel.

A. H.A.'s Forensic Medical Records

¶ 14. Daniels asserts H.A.'s forensic medical records are testimonial in nature and violate his Sixth Amendment right to confrontation. "A document is testimonial when it is created for the sole purpose of the State's use as evidence against the defendant." Vanwey v. State , 147 So.3d 367, 370 (¶ 10) (Miss. Ct. App. 2014) (citation omitted). Daniels asserts H.A.'s medical records are testimonial, because the police referred H.A. for forensic evaluations and numerous officers were present for the interview. As a result, Daniels asserts the forensic records are inadmissible hearsay. "However, a general hearsay objection is insufficient to preserve an alleged Confrontation Clause violation for appellate review." Anthony v. State , 23 So.3d 611, 620 (¶ 41) (Miss. Ct. App. 2009) (quoting Briggs v. State , 16 So.3d 696, 698-99 (¶ 11) (Miss. Ct. App. 2008) ). In Anthony , "[the defendant] made no Sixth-Amendment objection to the admission of the abuse record at trial or in [the] posttrial motion, [and] her arguments on this issue [were] procedurally barred." Id.

¶ 15. Daniels's trial counsel did not object to the introduction of the records into evidence. In fact, Daniels's trial counsel stipulated to the forensic records being submitted into evidence. Notwithstanding the procedural bar, this Court finds no abuse of discretion by the trial judge allowing H.A.'s forensic report and medical records into evidence. The record reflects that Daniels's trial counsel relied on the results of the forensic records to develop a defense.

B. Assistance of Counsel

¶ 16. "To prove ineffective assistance of counsel, [one] must show that: (1) his counsel's performance was deficient, and (2) this deficiency prejudiced his defense." Jackson v. State , 73 So.3d 1176, 1181 (¶ 19) (Miss. Ct. App. 2011) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). Furthermore, the merits of a claim of ineffective assistance of counsel brought on direct appeal should be addressed only when "(1) the record affirmatively show[s] 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." Id. at 1181 (¶ 20) ; see also Colenburg v. State , 735 So.2d 1099, 1101 (¶ 5) (Miss. Ct. App. 1999).

¶ 17. The State does not stipulate the record affirmatively shows in effectiveness. However, Daniels contends his counsel provided deficient representation because of counsel's decision to stipulate to the admission of the forensic report. However, we disagree with Daniels's assertion. The stipulation of the medical records into evidence is a part of trial counsel's defense strategy. Daniels submits there is no reasonable trial strategy in stipulating the records that violated his Sixth Amendment right to confrontation. However, the forensic records did not document any signs of physical trauma. Furthermore, a strong presumption exists "that the attorney's conduct fell within the wide range of reasonable professional assistance." Hancock v. State , 964 So.2d 1167, 1175 (¶ 18) (Miss. Ct. App. 2007). "[C]ounsel's choice[s] of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy and will not stand as support for an ineffective assistance of counsel claim." Id. (citation and quotation marks omitted).

¶ 18. Accordingly, we find no merit in Daniels's claim that he received ineffective assistance of counsel. Moreover, this Court has held that "when a party raises an ineffective assistance of counsel claim on direct appeal, the proper resolution is to deny relief without prejudice to the defendant's right to assert the same claim in a postconviction relief proceeding." Lattimer , 952 So.2d at 222 (¶ 42) (citation omitted).

III. Whether the evidence was sufficient to establish venue.

¶ 19. Daniels contends the State failed to present sufficient evidence to establish beyond a reasonable doubt that the incident occurred in Pike County. "Proof of venue is indispensable to a criminal trial[,] and it may be proved by direct or circumstantial evidence." Smith v. State , 646 So.2d 538, 541 (Miss. 1994) (citations omitted). In Smith , "none of the witnesses testified during the State's case-in-chief that the crimes took place in [the venue in which the incident was alleged to have occurred]." Id.

¶ 20. Ard testified the incident took place at Stalling's house, located "maybe five or six miles away from her home." She testified Stalling's house is located in Pike County. Daniels asserts no witness testified as to the address of Daniels's house. Further, Daniels argues Ard guessed the location of the house while giving her testimony. The following is an excerpt of Ard's testimony during direct examination:

Q. Okay. What state is it in?
A. It's in Magnolia. It's in Osyka, where she lives.
Q. Okay. What State?
A. Mississippi.
Q. Okay. And what County?
A. Walthall-I mean, Pike County.

¶ 21. "Direct or circumstantial evidence may be used to prove venue." Lee v. State , 910 So.2d 1123, 1126 (¶ 10) (Miss. Ct. App. 2005) (citation omitted). Although Ard mistakenly named the wrong city in which Stalling lives, she quickly corrected herself. Moreover, both cities Ard named are located in Pike County.

¶ 22. Although the State could have presented additional evidence to establish venue, Ard's testimony sufficiently established venue. Accordingly, we affirm the judgment of the circuit court.

¶ 23. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR AND GREENLEE, JJ., CONCUR. WILSON J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      We have used initials to protect the identity of the victim.

      Daniels is sometimes referred to as "Nookie" by his family.

      The trial in this case preceded the nonsubstantive restyling of the Rules of Evidence in July 2016, so we have used the former language.

      In the record, the word "state" is written. However, the word should be "city."

      In Turner v. State , 220 So.2d 295, 297 (Miss. 1969), the Court held, "although additional proof could have been offered by the State to prove venue even more conclusively, ... under all the facts ... the proof was sufficient to meet the burden placed on the State."


source: Caselaw Access Project

author: IRVING, P.J., FOR THE COURT:

license: Public Domain

text:
    Marcus SHELBY a/k/a Shelby Marcus Demond a/k/a Shelby M. Demond, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00312-COA
    Court of Appeals of Mississippi.
    September 12, 2017 Rehearing Denied February 20, 2018 Certiorari Denied May 17, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER
    DISTRICT ATTORNEY: ROBERT SHULER SMITH
    BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. A jury in the Hinds County Circuit Court, First Judicial District, convicted Marcus Shelby of the murder of Duan Penn, and the circuit court sentenced him, as a habitual offender, to life imprisonment in the custody of the Mississippi Department of Corrections, without the possibility of parole. Shelby now appeals, arguing that the trial court erred in denying his motion for a new trial because the verdict is against the overwhelming weight of the evidence. We affirm.

FACTS

¶ 2. On April 11, 2012, the Jackson Fire Department and the Jackson Police Department were dispatched to a fire near Forest Avenue and Methodist Home Road in Jackson, Mississippi. Officer Clarence Gibson, one of the police officers dispatched to the scene, testified at trial that he observed a body burning in the fire, amidst fragments of blue tarpaulin and woven rope. The body was burned beyond recognition; it was mostly naked, with duct tape wrapped around the face and head.

¶ 3. Shortly after the body was found, Officer Delanio Sanders of the Jackson Police Department reported his brother Penn missing. Officer Sanders began searching for his brother in areas where Penn was known to frequent, including Marcellos Coleman's residence at 512 Huron Street. Officer Sanders told his superiors that he suspected something had happened to Penn at that location. Around this time, dental records confirmed that the burned body was Penn's.

¶ 4. On May 18, 2012, pursuant to a search warrant, Officer Robert Bufkin and detectives with the Jackson Police Department conducted a search of 512 Huron Street. Their search led to the discovery of blue tarpaulin fragments and woven rope consistent with that recovered from the burn scene, a roll of duct tape, and evidence of a burn pile where more blue tarpaulin fragments were found.

¶ 5. Earnest Kendricks, who lived across the street from the Huron Street address, later provided a statement to the police, in which he stated that he had seen Shelby and Penn at the Huron Street address on April 11, 2012, and further that "[he knew] that someone hit [Penn]."

¶ 6. On October 2, 2012, a Hinds County grand jury indicted Shelby, Coleman, and Janice Pittman for one count of murder and one count of kidnapping. All three defendants were tried separately.

¶ 7. During Shelby's trial, jurors heard testimony from Kendricks and Pittman, both of whom lived near 512 Huron Street. Kendricks and Pittman both testified that they had previous interactions with Shelby, Penn, and Coleman, and were able to identify them.

¶ 8. Kendricks testified that, on April 11, 2012, Coleman hosted a barbeque at Coleman's residence. Kendricks witnessed the activities at Coleman's residence from where he stood in the yard across the street. He testified that both Shelby and Penn were in attendance. Kendricks further testified that he left the yard shortly after Penn arrived, so he did not see what else happened; however, Kendricks maintained that he overheard Penn say at one point that "he didn't have nothing to do with the break-in." Kendricks continued: "I [saw Pittman] jump over the fence, and I couldn't tell you where she hit him. I couldn't see because of the bushes. [It looked] like something was going on, but I wasn't sure because they [were] all getting loud over there." Then, the following exchange occurred:

[THE PROSECUTOR]: Now, Mr. Kendricks, in the statement that you wrote-
[KENDRICKS]: Yeah.
[THE PROSECUTOR]: -back in 2012, you say you know that someone hit him?
[KENDRICKS]: Yeah, it looked like, but I couldn't tell, though.
[THE PROSECUTOR]: And Marcus-Marcus Shelby was there at that time?
[KENDRICKS]: Yeah. He was out on the side of the street.
* * * *
[DEFENSE COUNSEL]: And you said Mr. Shelby-you saw him. He was by the street, correct?
[KENDRICKS]: Yeah.
[DEFENSE COUNSEL]: Okay. And you-you don't recall-you didn't see anyone hit Mr. Penn, correct?
[KENDRICKS]: No, I didn't see [anyone] do that.
* * * *
[DEFENSE COUNSEL]: ... And when [Pittman] jumped the fence, Marcus Shelby was standing at the street, correct?
[KENDRICKS]: Yeah, he was.
[DEFENSE COUNSEL]: And you did not see Marcus Shelby hit Mr. Penn, correct?
[KENDRICKS]: Not while I was there.
[DEFENSE COUNSEL]: Okay. You didn't see him do anything but stand by the street, correct?
[KENDRICKS]: Uh-huh (affirmative response).

¶ 9. Pittman testified that she and her boyfriend, Raymond Jackson, were awoken by shouting on the night of April 11, 2012. She and Jackson went out onto her porch, where they could see into Coleman's front yard. There, Pittman saw four men-Coleman, Shelby, a "skinny guy," and a "big guy" with dreadlocks-encircling another man who was lying on the ground, naked. Pittman heard the men shouting about a break-in and realized that the man on the ground must have been Penn, whom she had recently reported to police as being involved in the break-in at Coleman's home. The four men were beating and kicking Penn, and at one point a flame arose from Penn's body. Pittman testified that, at some point, the men noticed her watching them from her porch, and the skinny guy shouted over to her that Penn was accusing her and her daughter of being involved with the break-in at Coleman's home. Pittman testified that she walked over to Coleman's front yard where the beating was taking place:

And when I went over there, I was-I was standing like-you know, I had-got down-as close to-on my knees because I was standing-was right there at [Penn's] head. And I had-one of the guys that was-he was kind of on my left side over here and then Shelby was on the right side.

Pittman confronted Penn about accusing her of being involved in the break-in; then she punched him four times in the face; during this time, Shelby, the skinny guy, and the big guy with dreadlocks were still surrounding Penn:

Shelby was standing-well, if I was on my knees and I was right there at the-at the head, he was on the, like, right here-the left side of me-on the right side of me.

Pittman further testified that Coleman had walked somewhere else at this point and that Penn was still alive during that time.

¶ 10. After partaking in the beating, Pittman returned home and noticed that she had blood on her shirt, so she changed clothes. Sometime later, the big guy with the dreadlocks walked over and asked Pittman for her bloody shirt. Pittman gave him the shirt, which he took and put in a burn barrel along with other pieces of evidence. Pittman testified that, after this, she stood out on her porch for a while and watched as the four men continued beating Penn, then carried his body to Coleman's backyard. After about fifteen or twenty minutes, the skinny guy went to Shelby's house, which was apparently up the street, and got into a car. Pittman watched as the skinny guy backed the car into Coleman's driveway, and then both the skinny guy and Shelby went into the backyard. About twenty minutes later, Pittman saw the skinny guy and big guy with dreadlocks place something wrapped in a tarp into the trunk of the car. All four men subsequently got into the car and drove away. Pittman testified that, twenty minutes later, Coleman and the big guy with dreadlocks returned and said that they needed some gasoline but had no cash. Coleman asked Pittman to purchase some, so Pittman walked down the street to the store and filled up a small jug with gasoline, which she gave to Coleman. Pittman testified that she subsequently left the scene to pick her daughter up from work.

¶ 11. Detective Carlotta Taylor with the Jackson Police Department also testified at Shelby's trial. On April 11, 2012, Detective Taylor was called to the scene where the burning body was found. Detective Taylor testified that she collected evidence and conducted an investigation in the following weeks. Around the time that the body was identified as Penn's, Detective Taylor received information from Officer Sanders regarding 512 Huron Street. Detective Taylor and several other detectives went to 512 Huron Street; however, no one was home, so they wandered over to Pittman's residence, nearby. Detective Taylor testified that Pittman and two other subjects were taken to the police station for interviewing; while there, Pittman told Detective Taylor about the "beating, burning[,] and torture of Duan Penn" that had taken place. Pittman also admitted to Detective Taylor that she had participated in the beating. At this point in Detective Taylor's testimony, the State offered as exhibits two photo-lineup identifications. Detective Taylor testified that, after Pittman was brought to the police station, Pittman correctly identified Shelby in one lineup and Coleman in the other. On the lineup depicting Shelby, Pittman handwrote, "[Shelby] was standing around, was also hitting him, as well."

¶ 12. On cross-examination, defense counsel asked Detective Taylor whether she also interviewed Jackson, Pittman's boyfriend, and whether she tried to coerce Jackson into identifying Shelby by pointing at pictures and asking Jackson about each picture individually. Detective Taylor admitted to interviewing Jackson but denied trying to make Jackson identify Shelby. Defense counsel asked for a bench conference and requested a recess so that Detective Taylor could review the video recording of her interview with Jackson, asserting that the video portrayed that she did in fact attempt to coerce Jackson into identifying Shelby. However, the video recording was about two hours long and defense counsel admitted that he did not know which portion of the tape was relevant to the issue. Defense counsel offered to let Detective Taylor read a transcript of the video that had been prepared. The judge agreed to let counsel review the transcript to find the relevant portion. However, defense counsel ultimately abandoned his request and stated, "Your Honor, I'm ready to proceed. I think we-I'm just going to move on. I mean, I could use it, but I'll just get on to some other stuff, Judge." The trial judge replied, "All right. So you're abandoning that effort to cross-examine on the transcript of the videotape?" Defense counsel replied, "Until another issue arises where there's a lack of recollection, and I suspect that may happen." However, no such issue ever arose and the video recording was not mentioned again.

¶ 13. Additionally, during Detective Taylor's testimony at trial, she was asked about the statement that Jackson made to police:

[DEFENSE COUNSEL]: [Jackson] said that-he also said that [Shelby] was standing in the street, walking down the street and didn't go with anybody to dispose of the body, correct? He said [Shelby] walked up the street?
[DETECTIVE TAYLOR]: There was a statement that [Shelby] walked up the street.
[DEFENSE COUNSEL]: Okay. And that was Mr. Jackson that stated that, correct? He said everybody had left except [Shelby]. He walked up the street. That's his statement, correct?
[DETECTIVE TAYLOR]: I know that there was a statement that he walked up the street. I'm not sure if it was by [Jackson] or not.

However, Jackson, himself, did not testify at trial, and his statement to police was not included in the record.

¶ 14. The jury also heard expert testimony from Jacob Burchfield, with the Mississippi Crime Laboratory, who testified that the rope samples and blue tarp collected from the burn scene were consistent with that recovered from 512 Huron Street. Finally, Dr. Mark LeVaughn, the chief medical examiner at the Mississippi medical examiner's office, testified that Penn's injuries were consistent with blunt trauma, strangulation, and asphyxiation. Dr. LeVaughn testified that he was unable to determine which of these injuries was the ultimate cause of Penn's death; however, Dr. LeVaughn testified that each injury played a role in Penn's death.

¶ 15. The jury ultimately convicted Shelby of depraved-heart murder, but found him not guilty of kidnapping. On May 26, 2015, Shelby was sentenced to life in prison without parole as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2015). Shelby filed a motion for a judgment notwithstanding the verdict (JNOV) or for a new trial on May 27, 2015. The court denied Shelby's motion on May 29, 2015.

¶ 16. On January 19, 2016, Shelby filed a handwritten letter in which he requested an out-of-time appeal, maintaining that, after trial, he had fully intended to appeal but his counsel had failed to take action on his behalf. On February 11, 2016, Shelby's attorney filed a motion for leave to file an out-of-time appeal, arguing that he never received a copy of the May 29, 2015 order denying Shelby's motion for JNOV or a new trial. On February 12, 2016, the circuit court granted the motion, and Shelby filed his notice of appeal on February 29, 2016. Shelby's trial attorney subsequently withdrew from his appeal, and Shelby was allowed to proceed in forma pauperis with newly appointed appellate counsel.

DISCUSSION

¶ 17. Shelby argues that the verdict was against the overwhelming weight of the evidence for three reasons: (1) the only evidence of his involvement in Penn's beating came from Pittman's testimony, which was directly contradicted by Kendricks's testimony, Jackson's testimony, and Pittman's own statement to police; (2) "[t]he only evidence linking Shelby from Pittman's original statement to police involved a lineup procedure that was questionable at best"; and (3) Pittman had improper motives in testifying against Shelby, due to her status as a co-indictee in the crime.

¶ 18. "When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, [an appellate court] will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Bush v. State , 895 So.2d 836, 844 (¶ 18) (Miss. 2005) (citation omitted). "However, the evidence should be weighed in the light most favorable to the verdict." Id. (citation omitted).

¶ 19. First, Shelby argues that Kendricks and Pittman offered directly contradictory testimony, in that Kendricks testified that Shelby was "out by the street during the period when Penn was attacked," while Pittman testified that Shelby was standing beside her when she began partaking in the beating. However, this argument presents an improper characterization of the facts. Kendricks never said that Shelby was standing in the street when Pittman actually punched Penn; rather, Kendricks testified that Shelby was standing in the street when Pittman jumped the fence. Both Kendricks's testimony and Pittman's testimony could be true if Shelby was standing out in the street when Pittman jumped the fence, and then ran over to where Pittman was when she began punching Penn. It is unclear from the record whether this set of facts is correct; however, taking both Kendricks's and Pittman's testimonies into consideration, we find no direct contradiction between the two. As such, this issue is without merit.

¶ 20. Second, Shelby argues that Jackson's statement to police directly contradicts Pittman's testimony; however, like Shelby's argument regarding Kendricks's testimony, this argument does not present an entirely accurate depiction of the facts. Detective Taylor testified that Jackson, in his statement to police, merely stated that Shelby walked up the street, without specifying when he did so. As with Kendricks's testimony, Jackson's statement is not necessarily in conflict with Pittman's testimony that Shelby was standing beside her as she beat Penn, for Shelby could have been up the street before the beating began but returned to where Pittman was as she began to beat Penn, or he could have gone up the street after the beating occurred. Therefore, this argument is also without merit.

¶ 21. Third, Shelby argues that Pittman's testimony at trial varied from the oral statement she gave to police, because she did not implicate Shelby in her oral statement. She did not include Shelby in her account of the events until she saw his name and picture in a photo lineup. At that time, she circled his name. Shelby further asserts that this photo-lineup identification was improper. However, Shelby fails to support either of these assertions. "Arguments advanced on appeal must contain the contentions of the appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on." Gray v. State , 202 So.3d 243, 262 (¶ 73) (Miss. Ct. App. 2015) ; see also M.R.A.P. 28(a)(7). "Failure to comply with Rule 28(a) [ (7) ] renders an argument procedurally barred." Id. (citation omitted). The record is void of any transcription of Pittman's oral statement to police. Further, her photo-lineup identification of Shelby was excluded from the record. Additionally, Shelby offers no facts or authority to suggest how Pittman's lineup identification was improper. Thus, this issue is without merit.

¶ 22. Lastly, Shelby argues that doubt should be cast upon Pittman's testimony, due to her status as Shelby's co-indictee. However, to this argument, we reply simply that "the jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness." Reeves v. State , 825 So.2d 77, 80 (¶ 8) (Miss. Ct. App. 2002) (citations omitted). Further,

[t]his Court may not make an assessment on the credibility of the trial witnesses as this task is one for the jury presiding over the matter. Kinzey v. State , 498 So.2d 814, 818 (Miss. 1986). When this Court analyzes a jury's verdict to determine whether it goes against the overwhelming weight of the evidence, we must keep in mind that the jury is the ultimate finder of fact. This Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.

Id. We refuse to usurp the jury's role as fact-finder in this matter. It chose to convict Shelby after hearing each witness's testimony at trial. Furthermore, it heard Pittman acknowledge that she was a co-indictee, yet it still chose to convict him. We will not disturb its verdict based on these facts.

¶ 23. In summary, we note that not one witness testified that he or she saw the entirety of the beating: Kendricks testified that he only heard yelling and that he knew Penn had been hit, while Pittman testified that she and Jackson were awoken by shouting and came outside as the beating was already underway. Thus, it is entirely possible-and plausible, according to the jury-that Shelby may have wandered down the street at some point, while still partaking in Penn's beating, and ultimately his murder. He need not have been present for the entire beating to have played a role in Penn's death. Furthermore, the jury clearly relied on Pittman's testimony that she witnessed Shelby, along with the other three men, beating Penn from where she stood on her porch. Pittman's testimony, along with Kendricks's, places Shelby at the scene of Penn's murder, and Pittman's testimony implicates Shelby in Penn's ultimate death. In viewing all of the above evidence presented in the light most favorable to the verdict, we cannot say that an unconscionable injustice resulted here. Therefore, we affirm the judgment of the circuit court, which adjudged Shelby guilty of murder, as a habitual offender, and sentenced him to life imprisonment, without parole, in the custody of the Mississippi Department of Corrections.

¶ 24. AFFIRMED.

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

      Pittman stated at trial that she had chosen to testify because it was "the right thing to do." She denied having been promised leniency by the State in exchange for her testimony against Shelby.

      Pittman did not mention hopping over a fence to get to Coleman's yard, as Kendricks had described; rather, she testified that she "had to walk around because the car was in the driveway and the truck was parked on the corner by a bush toward the-as you-almost into the driveway."

      Pittman also testified that Coleman had "taken a gun and shot at [Penn]" at some point. Likewise, Kendricks testified that Coleman "shot down at [Penn]." However, the record is unclear as to when exactly this occurred. A gun was later obtained from 512 Huron Street.

      At some point, Kendricks wandered over to Pittman's porch and sat there as well. Pittman testified that her daughter's girlfriend also came out onto the porch for a bit; however, Pittman did not give the daughter's girlfriend's name, and the girlfriend did not testify at Shelby's trial. Jackson, Pittman's boyfriend, did not testify at trial either.

      Detective Taylor was known as Detective Carlotta Bacon at the time of the incident. At the time of the trial, she had married and changed her surname to Taylor.

      Shelby had previously been convicted of multiple offenses, including aggravated assault, possession of contraband while in prison, and possession of a firearm as a felon.

      We note that pursuant to the provisions of Rule 4(h) of the Mississippi Rules of Appellate Procedure, the trial court was without authority to grant the out-of-time appeal because it had been more than six months since the entry of the order overruling Shelby's post-trial motion. However, pursuant to the authority granted by Rule 2 of the Mississippi Rules of Appellate Procedure, we, for good cause as shown in Shelby's January 19, 2016 letter, suspend the thirty-day appeal-time requirement and allow this appeal to proceed.


text:
    Christopher WALKER, Appellant v. KINDER MORGAN, INC. and Old Republic Insurance Company, Appellees
    NO. 2016-WC-01415-COA
    Court of Appeals of Mississippi.
    September 19, 2017 Rehearing En Banc Denied February 20, 2018
    JAMES KENNETH WETZEL, RUSSELL S. GILL, GARNER JAMES WETZEL, ATTORNEYS FOR APPELLANT.
    JEFFERSON PINCKNEY W. SKELTON, ANDY LOWRY, ATTORNEYS FOR APPELLEES.
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Christopher Walker appeals the Workers' Compensation Commission's decision overturning an administrative judge's determination that he suffered an on-the-job injury to his lower back. The administrative judge found in favor of Walker and awarded him temporary total disability benefits until he reached maximum medical improvement, as well as medical expenses, including for spinal surgery. On a petition for review, the Commission disagreed with the administrative judge's findings, reversed the administrative judge's order, and dismissed Walker's petition for failure to prove a compensable workplace injury. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Walker had an extensive medical history with lower-back pain prior to working for Kinder Morgan Inc. Walker began his employment with Kinder Morgan on or about September 26, 2011. When he started working he was already undergoing physical therapy for his back from a prior accident. According to Walker, Kinder Morgan was unaware of his previous work-related and automobile injuries. Around February 11, 2015, Walker had an automobile accident. Damage was done to his vehicle, and Walker was taken to the emergency room. According to Walker, he was experiencing muscle spasms and tingling in his foot following the accident.

¶ 3. Walker was prescribed a muscle relaxer and pain medication, and he was taken off work for a week because Kinder Morgan does not allow its employees to work while taking mood-altering medications. Walker returned to Kinder Morgan on February 24, 2015, with no restrictions. On his first day back to work, Walker was required to assist a coworker, Donte Meyers, in dismantling a compressor, draining its oil, and removing and replacing the inner filters. The lid attached to the compressor had to be removed to change the oil.

¶ 4. The lid weighed approximately seventy to eighty pounds. Walker and Meyers lifted the lid off of the compressor. While lifting the lid and twisting around, Walker testified that he felt a "bite" in his back. According to Walker, his weight was on his right hand, side, and knee, and he had a preexisting low-back injury.

¶ 5. After Walker and Meyers lifted the lid, Walker carried it over a threshold; at that point he turned the lid in a different position and carried it against his chest down a step. He again felt a "pinch" in his back when he laid the lid on the concrete area. According to Walker, Meyers was on the opposite side of the compressor, and did not see Walker maneuvering the lid because his view was obstructed. Walker testified that he did not inform Meyers that he injured his back, since he had just returned to work.

¶ 6. Two Kinder Morgan supervisors, Kelly Pitts and Darwin Stillson, were making safety rounds and walked over to Walker's area as he was placing the lid on the ground. Stillson and Pitts briefly conversed with Walker and Meyers, but Walker did not mention the injury to them. That evening, Walker went home and lay on the floor, attempting to ease his back pain. His pain did not subside and actually worsened. The next day Walker noticed that his right foot was numb and his back was still hurting; however, he did not report the injury that day, though Kinder Morgan's policy was to report the injury immediately.

¶ 7. Two days after the injury, Walker noticed numbness in his foot and sharp pains in his back. Three days after the injury, Walker went to his work leader, James Rachal, and reported the injury. According to Walker, Rachal recommended that an injury report be made, and that he see his family physician. Walker's family physician recommended that he see Dr. Eric Graham, who performed his surgery in 2006.

¶ 8. After Dr. Graham examined Walker, surgery was recommended, but Kinder Morgan denied the claim. Walker filed a petition to controvert on June 10, 2015, alleging that on February 24, 2015, he received a work-related injury to his lower back and right leg while lifting a metal lid at work. Kinder Morgan denied the compensability of the injury and did not pay workers' compensation benefits.

¶ 9. Following discovery by the parties, a hearing was held on January 13, 2016, at the Jackson County Courthouse in Pascagoula, Mississippi. The issue submitted to the administrative judge for resolution was whether a compensable work-related injury occurred on or about February 24, 2015. During the hearing, Walker admitted that he had prior back problems due to previous accidents. However, Walker testified that those problems were relieved by surgery and therapy.

¶ 10. At the hearing, Kinder Morgan introduced the depositions of Rachal, Pitts, Stillson, Meyers, Kevin Damazio, and Brian Gilliand. The depositions by Rachal, Pitts, Stillson, and Gilliand noted that Walker failed to report the injury the day that it happened, and Kinder Morgan's company policy was to report any injury immediately. Stillson and Gilliand also stated that Walker informed them that he was unsure if his injury was due to work or the car accident he was involved in a week prior. Damazio testified that later in the week, following Walker's injury, Walker engaged in horseplay at work and kicked his leg in the air to show his fellow employees how high it could reach.

¶ 11. Dr. Graham's testimony was also introduced during the hearing. Dr. Graham is an orthopedic spine surgeon who Walker had known for several years, because they attended high school together. According to Dr. Graham, Walker's spine problems began around 2005. In 2005, Walker suffered a work-related injury while working for a water and sewer company. Dr. Graham performed a two-level fusion on Walker's cervical spine at C5-6 and C6-7. Following the surgery, Walker reached maximum medical improvement; however, Dr. Graham assigned a twenty-eight percent overall impairment rating. Walker filed a workers' compensation injury and settled it. According to Dr. Graham, Walker was pain free in his neck by 2007.

¶ 12. Around January 31, 2008, Walker suffered his first lumbar (lower back) injury while lifting a chair. Two months later, Walker saw Dr. Graham for lower-back pain and, to a lesser extent, leg pain. At that time, Walker had a history of back pain and was seeing a chiropractor. Dr. Graham had no knowledge of how long Walker had been seeing a chiropractor. Therefore, he ordered an MRI scan to evaluate Walker's lumbar problems.

¶ 13. The MRI scan showed a bulge at the lubosacral joint (L5-S1) and a synovial (facet) cyst. Dr. Graham treated Walker with trigger point and facet injections. Walker saw Dr. Graham a year and a half later, still plagued with similar symptoms. Walker was also seeing another doctor and a pain-management specialist. Dr. Graham reviewed a CT scan and found a lytic lesion, which could be developmental or congenital. Dr. Graham offered Walker a discogram or possible lumbar spinal fusion surgery; however, Walker refused.

¶ 14. On January 31, 2011, Walker returned to Dr. Graham and wanted to proceed with the discogram. The discogram was performed by Dr. Joe Chen and was positive, with back and leg pain at L5-S1. Dr. Graham advised Walker to either live with his pain or undergo lumbar-fusion surgery at L5-S1. Walker next saw Dr. Graham on January 19, 2012. Walker testified that the year following his last visit he continued to experience the same symptoms. Dr. Graham reviewed an MRI scan, which was different from the prior scans, because it showed more stress on the pedicles, which meant there was bone-on-bone wear.

¶ 15. Dr. Graham recommended lumbar-fusion surgery again, but Walker wanted to wait three months so that he could attempt to lose weight. Walker returned to Dr. Graham six months later, and his symptoms had not changed. Walker decided that he wanted to proceed with the surgery, but he never called the office to schedule the procedure. The next time Walker saw Dr. Graham was after the alleged injury at Kinder Morgan.

¶ 16. Dr. Graham testified that before the February 24, 2015 accident, ninety-five percent of Walker's pain was in his back and five percent was in his leg. After the accident, the pain was distributed fifty-fifty between Walker's back and legs. Moreover, before the accident Walker's pain was bilateral, but after the accident, the pain was concentrated on the right side. Before the accident, Walker's leg pain stopped at his knee; after the accident, it proceeded down his leg.

¶ 17. The administrative judge concluded that Walker suffered a compensable work-related injury. The judge found Walker to be a credible witness and that his testimony was neither unreasonable nor unbelievable, considering the facts of the case and the evidence as a whole. The administrative judge acknowledged that after the date of the alleged injury, an eye bolt was added to the top of the compressor to assist with lifting the lid.

¶ 18. Next, the administrative judge found Dr. Graham's opinion to be more compelling than the results of Kinder Morgan's physician. Dr. Graham opined that Walker was prone to lumbar problems/back reinjury due to his preexisting developmental condition and because of his substantial history of preexisting lower-back problems. Dr. Graham found that Walker's lifting incident while employed at Kinder Morgan necessitated surgery. The administrative judge acknowledged that Walker had preexisting conditions, but found that the February 24, 2015 incident aggravated Walker's preexisting injuries and culminated in him absolutely needing surgery.

¶ 19. The judge acknowledged that the doctor who performed the employer medical evaluation, Dr. Eric Amundson, opined that Walker did not injure his back while lifting the metal compressor lid on February 24, 2015. Dr. Amundson asserted the low-back and right-leg symptoms that Walker was experiencing were secondary to symptom magnification and/or preexisting symptomatic pathology at L5-S1.

¶ 20. However, the administrative judge found Dr. Graham's medical opinion to be more compelling than that of Dr. Amundson, since Dr. Graham was Walker's treating physician for many years. The administrative judge awarded Walker temporary total disability benefits in the amount of $463.59 weekly, until Walker reached maximum medical improvement. Walker was also awarded medical expenses, including those for his spinal surgery.

¶ 21. Kinder Morgan appealed the administrative judge's decision to the Commission. The Commission reversed the order of the administrative judge and dismissed Walker's petition for failure to prove a compensable workplace injury. The Commission found that the evidence did not support a finding of causation required to establish the compensability of Walker's claim. The Commission found that the testimony of Walker's coworker did not support his allegations of sustaining a work-related injury. The Commission opined that Walker's failure to report his injury for three days without a valid reason likewise did not support Walker's allegations.

¶ 22. The Commission also found Dr. Amundson's testimony more compelling than Dr. Graham's. The Commission noted that Dr. Amundson examined Walker and reviewed all of his medical records, including the MRI scan following his car accident. In contrast, Dr. Graham derived his opinion ninety-five percent from Walker's medical history and five percent from Walker's MRI scans. The Commission noted that Dr. Graham did not review the MRI scan taken after Walker's car accident. As a result, the Commission concluded that Walker failed to establish the existence of a compensable injury, reversed the administrative judge's order, and dismissed Walker's claim. Walker appeals.

STANDARD OF REVIEW

¶ 23. "[R]eview of a decision of the Commission is limited to determining whether the decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated one's constitutional or statutory rights." Cook v. Home Depot , 81 So.3d 1041, 1044 (¶ 3) (Miss. 2012) (quoting Short v. Wilson Meat House LLC , 36 So.3d 1247, 1250 (¶ 17) (Miss. 2010) ). "Because the Commission is the ultimate fact-finder and judge of the credibility of the witnesses, this Court may not reweigh the evidence before the Commission." Id. at 1044-45 (¶ 3).

¶ 24. This Court affords de novo review to the Commission's application of the law. Natchez Equip. Co. v. Gibbs , 623 So.2d 270, 273 (Miss. 1993). "The legal effect of the evidence [ ] and the ultimate conclusions drawn by [the Commission] from the facts ... are questions of law, especially where the facts are undisputed or the overwhelming evidence reflects them." Cent. Elec. Power Ass'n v. Hicks , 236 Miss. 378, 110 So.2d 351, 356 (1959). "[W]hen the agency has misapprehended a controlling legal principle, no deference is due, and our review is de novo." ABC Mfg. Corp. v. Doyle , 749 So.2d 43, 45 (¶ 10) (Miss. 1999) ; see also Gregg v. Natchez Trace Elec. Power Ass'n , 64 So.3d 473, 475-76 (¶ 9) (Miss. 2011).

DISCUSSION

¶ 25. Walker asserts two errors on appeal. First, he argues that the Commission arbitrarily and capriciously applied the facts to the law and ignored his uncontradicted testimony. Second, Walker asserts that the Commission ignored the testimony and opinion of Walker's treating physician, Dr. Graham, and denied the compensability of his claim solely due to the opinion of Dr. Amundson, who evaluated him once.

¶ 26. "[T]o establish a prima facie case of disability, a claimant must show by a fair preponderance of the evidence that (1) an accidental injury occurred (2) which arose out of and in the course of employment and (3) that the injury and claimed disability are causally connected." Harrison Cty. Bd. of Sup'rs v. Black , 127 So.3d 272, 275 (¶ 10) (Miss. Ct. App. 2013) (citing Hedge v. Leggett & Platt Inc. , 641 So.2d 9, 13 (Miss. 1994) ). "Once the claimant establishes a prima facie case of disability, the burden of proof shifts to the employer to rebut or refute the claimant's evidence." Id. (citing Thompson v. Wells-Lamont Corp. , 362 So.2d 638, 641 (Miss. 1978).

I. Whether the Commission acted arbitrarily and capriciously in its application of the facts.

¶ 27. Walker argues that the evidence did not support the Commission's order. Walker asserts that the evidence that he sustained a compensable injury was uncontradicted. In support of his contention, Walker cites the administrative judge's finding that the lay and medical testimony supported Walker's claim of a work-related injury. On appeal, Walker reiterates that he felt "better than ever" when he returned to work after his February 11, 2015 automobile accident. Walker argues that he did not report his accident on the day that it occurred because he and Donte were "under the gun" to complete the project by the end of the day.

¶ 28. Walker also argues that he became aware that he had injured himself at work after noticing a new pain radiating down his leg the day after the accident. Walker argues that he presented credible uncontradicted testimony, and there were no material contradictions in his testimony during the compensability hearing. We disagree.

¶ 29. Six depositions of Kinder Morgan employees were submitted during the compensability hearing. Though four of the six merely reiterated Kinder Morgan's policy that injuries be reported immediately, the depositions of Gilliand and Stillson contradicted Walker's testimony. Walker submitted to the administrative judge that he was not in pain on the morning of the accident. However, according to the deposition testimony of Stillson and Gilliand, Walker was unsure whether the pain he had experienced on the day of the accident was due to a work-related injury or the automobile accident he was involved in a week prior. Moreover, Damazio's testimony that Walker was "horseplaying" in the shop and kicked his leg in the air to see how high it could reach also contradicts Walker's testimony that he was in an extensive amount of pain following the accident.

¶ 30. The Commission found that the greater weight of the evidence did not support the causation required to establish compensability. The Commission found that the testimony of Walker's coworkers was more compelling than Walker's testimony and that it contradicted Walker's evidence of a compensable claim. "The Commission is the trier and finder of facts in a compensation claim, the findings of the [administrative judge] to the contrary notwithstanding." Fought v. Stuart C. Irby Co. , 523 So.2d 314, 317 (Miss. 1988) (citing Vardaman S. Dunn, Mississippi Workers' Compensation § 284 (3d ed. 1982)). "If the Commission's decision and findings of fact are supported by substantial evidence, then we are bound by them." In re Dependents of Harbin, 958 So.2d 1260, 1262 (¶ 5) (Miss. Ct. App. 2007). Walker could not cite to any specific action of the Commission to illustrate that it acted arbitrarily or capaciously. He merely argues that the evidence he submitted was uncontradicted. We find no error in the Commission's findings.

II. Whether the Commission ignored the testimony of Walker's treating physician.

¶ 31. Walker argues that the Commission acted arbitrarily and capaciously by ignoring Dr. Graham's testimony in favor of Dr. Amundson's testimony. Walker asserts that the Commission was faced with a disagreement of medical opinions. Walker contends that he met his credibility burden through both his uncontradicted testimony and that of his treating orthopedic surgeon, Dr. Graham. Walker reiterates that Dr. Graham was his treating physician for many years. Walker also asserts that the administrative judge found Dr. Graham's testimony to be more compelling than that of Dr. Amundson, who evaluated him once. Therefore, Walker argues that the Commission acted arbitrarily and capraciously in giving more weight to Dr. Amundson's testimony. We disagree.

¶ 32. The Commission found Dr. Amundson's testimony compelling. The Commission noted that Dr. Amundson found Walker's behavior to be exaggerated and his medical condition unchanged after evaluating his MRI's scans, including those that were taken on the day of his car accident. The Commission's order noted that Dr. Graham testified that he did not review Walker's medical records from the automobile accident and derived his recommendation for lumbar-fusion surgery ninety-five percent from Walker's history and five percent from the MRI scans. The evidence used to prove the causation must be credible medical evidence and not mere speculation. See Langford v. Southland Trucking LLC , 30 So.3d 1266, 1280 (¶ 52) (Miss. Ct. App. 2010).

¶ 33. We find that the Commission did not act arbitrarily and capriciously in reversing the order of the administrative judge and dismissing Walker's claim. Finding no error, we affirm.

¶ 34. AFFIRMED.

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

      A lytic lesion is a soft spot that develops at birth or over time, particularly when the bone structure has been damaged. The lesion can extend from the inner bone to the outside and can be seen on a standard x-ray as a hole on the bone.

      A discogram is an invasive diagnostic test that uses x-rays to examine the intervertebral discs of one's spine. A special dye is injected into the injured disc or series of discs. The dye makes the disc visible on a fluoroscope monitor and x-ray film.


author: GRIFFIS, P.J., FOR THE COURT:

text:
    Timothy PRICE, Appellant v. MTD PRODUCTS AND SAFETY NATIONAL CASUALTY CORPORATION, Appellees
    NO. 2016-WC-00925-COA
    Court of Appeals of Mississippi.
    September 19, 2017 Rehearing Denied February 13, 2018 Certiorari Denied May 17, 2018
    ATTORNEYS FOR APPELLANT: J. KEITH PEARSON, SARAH L. DICKEY
    ATTORNEY FOR APPELLEES: GINGER M. ROBEY
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Timothy Price appeals the Mississippi Workers' Compensation Commission's denial of his workers' compensation claim. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Price was employed by MTD Products from 1989 to 2012. MTD manufactures lawn equipment, including lawnmowers, snow blowers, edgers, and tillers. Price's primary job was to drive a tow motor, which is a modified forklift. Price would use the tow motor to pick up and transport boxes. However, if the production line became backed up or there were problems with the products coming down the general assembly line, Price would have to physically pick up the boxes and stack them on the floor. Price estimated the boxes could weigh up to 120 pounds.

¶ 3. Price alleges he sustained a compensable work-related injury to his neck and lower back on September 6, 2012. Specifically, Price claims he "suffered back and neck injuries, stemming from loading heavy boxes and from twisting and bending at work." He filed a petition to controvert on May 14, 2013. An evidentiary hearing was subsequently held before an administrative judge. A summary of the evidence is as follows:

Lay evidence

¶ 4. Price testified that he presented to work on September 6, 2012, around 6 a.m., feeling "fine." However, around 1 to 1:30 p.m., he "all of the sudden started feeling pain." According to Price, he advised his supervisor, David Swain, that he hurt his neck and back lifting lawnmowers. Price testified that Swain instructed him to see Janice Moore, MTD's occupational nurse, who advised him to go to Med Serve for treatment.

¶ 5. Price went to Med Serve on September 7, 2012, and saw Dr. Timothy Albers. Price claimed he told Dr. Albers that he was hurt at work. Price subsequently went to Baldwyn Family Medical on September 18, 2012, where he saw nurse practitioner Pam Hodges.

¶ 6. Price stated that his group health carrier was paying for his treatment since he did not know about workers' compensation. However, Price admitted that he went through yearly training at work, during which he was instructed on reporting work-related accidents. Price further acknowledged watching PowerPoint presentations wherein he was instructed to always report work-related injuries.

¶ 7. Price applied for and received Family Medical Leave Act (FMLA) leave and short-term disability for twenty-six weeks, beginning September 18, 2012. He completed an Employee's Report of Incident or Injury on October 31, 2012.

¶ 8. Swain, Price's supervisor, testified that he did not recall Price reporting a work-related injury on September 6, 2012. Instead, Price complained of a backache and stated that his back had been hurting for a long time. Price asked to take off the next day to go to a doctor's appointment, which he had already scheduled. Swain stated that he would have completed a supervisor's accident report on September 6, 2012, had Price reported a work-related injury. However, Swain did not complete an accident report until November 1, 2012, after he was notified by Moore of Price's allegations.

¶ 9. Moore, MTD's occupational nurse, testified that she had no recollection of Price reporting a work-related injury to either his back or neck on September 6, 2012. She further testified that had Price reported a work-related injury, she would have documented the complaints and instructed Price's supervisor to complete an accident report. Additionally, Moore stated that had Price reported a work-related injury, she would have sent him to Express Care South, not Med Serve. Moore explained that she did not use Med Serve for work-related injuries, but instead sent injured workers to Express Care South.

¶ 10. Moore testified that she was first notified by Price of his work injury on October 30, 2012, by telephone. She advised Price that he would need to return to the office to complete an injury report. Price reported to her office October 31, 2012, and completed the report.

¶ 11. Teresa Dye, the human resources coordinator at MTD, confirmed that Price applied and was approved for FMLA and short-term disability. Dye stated Price never advised of a work-related injury and would not have been eligible for short-term disability had his injury been work-related.

Medical evidence

¶ 12. Medical records from Aurora Spine Centers show Price presented to Dr. Walter Eckman on October 5, 2009, approximately three years prior to his alleged work injury, with a chief complaint of low back pain. The records note that Price had experienced "[c]hronic intermittent low-back and neck pain for 4 years."

¶ 13. Medical records from Med Serve indicate that on September 7, 2012, the day after his alleged injury, Price presented to Dr. Albers with a chief complaint of neck and back pain. According to Dr. Albers's notes, Price had experienced pain "on and off since 2008" and had "long-standing cervical and lumbar pain." However, Dr. Albers noted "[n]o discrete history of trauma to neck or low back." The notes further reflect that Price had previously received epidurals for pain and wanted to pursue this option again, as his pain had "significantly worsen[ed] over the past couple of months."

¶ 14. The medical records from Price's September 7, 2012 visit do not indicate an acute injury or "sudden" pain, as described by Price, nor do they support Price's assertion that he told Dr. Albers he was injured at work.

¶ 15. On September 10, 2012, an MRI of both the cervical and lumbar spine was performed, which indicated cervical and lumbar spondylosis, and multilevel cervical and lumbar disc bulges. Thereafter, on September 18, 2012, Dr. Albers diagnosed Price with degenerative disc disease, degenerative joint disease, chronic neck and low-back pain, and spondylosis. Price was excused from work until September 27, 2012.

¶ 16. Price saw nurse practitioner Hodges at Baldwyn Family Medical Clinic on September 18, 2012. The medical records show Price complained of back pain and stated he was unable to work. However, the medical records do not reflect that Price reported a work-related injury or stated that his pain was work-related. Instead, Price described the duration of his pain as "3 y[ea]rs."

¶ 17. Neurosurgeon Dr. Glenn Crosby II testified by deposition that he first saw Price on October 26, 2012, for an evaluation of his neck and low back. Price described his low-back pain as "chronic in nature" and "felt his back pain was related to the type of work he did." Price indicated that his neck pain was "more acute" and "was aggravated in mid-September when he was doing fine without neck pain and was injured at work lifting some heavy objects, [and] had immediate neck pain."

¶ 18. Dr. Crosby's impression was that Price had a work injury, which caused a cervical disc rupture with severe neck pain. He further found Price's chronic back pain was aggravated by his work conditions. Dr. Crosby performed surgery on February 6, 2013, to repair the ruptured cervical disc. Dr. Crosby last saw Price in June 2013.

¶ 19. Dr. Crosby admitted that he had not reviewed Price's medical records from other physicians prior to his deposition. Moreover, Dr. Crosby admitted that his opinions on causation were based on the history that Price provided to him.

¶ 20. Dr. Samuel Murrell performed an employer medical evaluation on September 9, 2013. Dr. Murrell noted that Price did not mention an acute injury or aggravating event at work to Dr. Albers or nurse Hodges. Dr. Murrell opined that Price's "complaints did not appear de novo from his 09/06/2012[,] but rather represented another of his many episodes for a chronic degenerative problem." Moreover, Dr. Murrell opined there was "no temporary aggravation or structural change in [Price's] underlying degenerative condition as a result of any injury [alleged] to have occurred on or about 09/06/2012."

¶ 21. Dr. Rodney Olinger, a neurosurgeon, performed an independent medical evaluation (IME) on March 12, 2015, and subsequently issued a written report. In his report, Dr. Olinger noted that he had reviewed the MRI of Price's neck and back and did not see any "acute ruptured disks." Dr. Olinger "agree[d] with a lot of what Dr. Murrell said" and felt that Price's condition was a chronic, longstanding problem. Dr. Olinger opined that "the most [he could] say [was] that [the] episode [on September 6, 2012] may have aggravated the situation but obviously not caused it. The majority of his problem [was] pre-existing."

¶ 22. Dr. Olinger was subsequently deposed and further explained his opinions. He testified during direct examination as follows:

Q. [Dr. Olinger], with regard to his cervical problems, I want you to assume the following: Assume, first of all, that [Price] had no significant cervical symptoms between late 2009 and September 6 of 2012. Further assume that on September 6, 2012 he was driving a forklift for the employer and also lifting heavy boxes. Assume that on throughout [sic] the day he developed cervical pain radiating into his arm but he did not have a particular discrete injury as we discussed earlier. Further assume that he told the employer at the end of the day that he was having problems and that, in fact, the employer is the one that sent him to Dr. Albers the next day, and presume that he subsequently treated and had surgery. Would the neck injury which necessitated this surgery have been caused by the work activities of September 6, 2012 as Price described those activities?
A. Well, I still-I'm not sure-I guess we have to say Dr. Albers, he did not-he didn't mention any problem with work to Dr. Albers, but I guess we'll just assume that-we'll just assume he had an injury on 9-6-2012, and like your hypothetical says and it may not have been, you know, it may have been, you know, happened, you know, within a short time after his work, assume that he did have a new ruptured disc in his neck and he was operated on. Then based on the hypothetical, I would have to say that-and nothing happening in between 2009 and 2012 and he had no problems, then I would have to say that his work injury in the hypothetical was probably the source of his need for surgery.
Q. So, again, if [Price] on September 6, 2012 ... wasn't having problems with his neck, goes to work doing this lifting, doing the driving of the forklift with his arms and such and doing the lifting, develops the problems manifest at work, worsened, get worse to where at the end of the day he's saying I need to see a doctor, would you relate what he was doing at work, would that be the cause of his neck problems?
A. Yes. I mean, that is the most likely cause ....

¶ 23. Dr. Olinger further testified during cross-examination:

Q. Dr. Olinger, you were asked the question whether-you were asked a hypothetical to assume certain facts to be true, that [Price] started work and his symptoms got worse throughout the course of the day and then he went to the doctor. But, [Dr. Olinger], you would agree with me that when he went to see Dr. Albers that's not the history he gave?
A. That's correct.
Q. And you would agree with me that he told Dr. Albers that he was having neck and back pain on and off since 2008 and that he had longstanding neck and back pain?
A. That's what he said.
Q. So the patient's own testimony is the evidence that there had been an ongoing problem between 2009 and 2012, correct?
A. Yes.
Q. You'd agree with that?
A. I certainly agree with that ....
Q. And you would agree that he told Dr. Eckman in October of 2009 that he had intermittent back and neck pain for four years and he had already sought medical treatment before then, correct?
A. Yes.
Q. And, [Dr. Olinger], you were asked about an acute type injury or I think it was termed a discrete injury which there's no evidence that he had a discrete injury in this case. [Price]'s own testimony was that there was not a discrete injury. So removing that discrete type injury from the equation here, do you have patients that have ongoing back and neck problems for a number of years whose symptoms gradually worsen on their own without regard to what they're doing at work on a daily basis, correct?
A. Correct.
....
Q. And without evidence of an acute type injury to him and just a gradual onset as [Price] testifie[d], in conjunction with the history that he gave the day after this alleged work injury that this had been ongoing since 2008 and longstanding, can you give an opinion that the causal factor for the need for surgery was something that happened at work on September the 6th of 2012?
A. The most I could say if I take into account the patient's own statement that he had continued problems is that he aggravated himself at most.
Q. I want you to assume that [Price], the patient that you saw, did not tell his employer ... that there was something that happened at work that day. I want you to assume that he did not report any work-related injury to his employer. Based on his history given to Dr. Albers, that would suggest that it was not related to his work?
A. That's correct, and that's what my original IME basically was saying.
....
Q. In [Price]'s deposition, he did try to relate his symptoms or his testimony was that, you know, his symptoms were something that started at work that day when he was lifting boxes, but his deposition was given in this case in July of 2013, so there was a significant-almost a year, ten months, after this alleged incident occurred before his deposition was given and after, you know, his opportunity to retain counsel in this matter. But his deposition testimony, if he said that this was something that started at work and progressed throughout the course of the day, you would agree with me that that's not the history that was recorded by Dr. Albers and Pam Hodges?
A. It was not the history recorded by those people, that's correct.

¶ 24. On October 16, 2015, the administrative judge determined Price "suffered a compensable work-related cervical and low back injury in the course and scope of his employment with [MTD] on or about September 6, 2012, when he aggravated his preexisting condition." The administrative judge found Price was entitled to benefits pursuant to the Mississippi Workers' Compensation Act. MTD subsequently appealed.

¶ 25. By order entered June 13, 2016, the full Commission found "that the greater weight of the evidence ... [did] not support a finding of causation required to establish compensability in this claim." As a result, the Commission reversed the order of the administrative judge and dismissed Price's claim. Price timely appealed.

STANDARD OF REVIEW

¶ 26. "The Workers' Compensation Commission is the ultimate finder of fact." Franks v. Foam Craft , 929 So.2d 350, 352-53 (¶ 12) (Miss. Ct. App. 2006). "The findings of the [Commission] are binding on this Court when the Commission's decision is supported by substantial evidence." Id. at 353 (¶ 12). However, "where the Commission has misapprehended the controlling legal principles," the standard of review is de novo. Hugh Dancy Co. v. Mooneyham , 68 So.3d 76, 79 (¶ 6) (Miss. Ct. App. 2011).

ANALYSIS

¶ 27. Price claims the Commission's decision is not supported by substantial evidence in the record. We disagree and find both the lay and medical evidence support the Commission's decision.

¶ 28. In a workers' compensation case, the claimant, Price, must prove by a "fair preponderance of the evidence" each of the following elements: "(1) an accidental injury, (2) arising out of and in the course of employment, and (3) a causal connection between the injury and the ... claimed disability." Owens v. Washington Furniture Co. , 780 So.2d 643, 645 (¶ 6) (Miss. Ct. App. 2000). Price "has the burden of establishing the essential elements of his claim, leaving nothing to surmise, conjecture, or speculation." Id.

¶ 29. " 'Injury' means accidental injury ... arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner." Miss. Code Ann. § 71-3-3(b) (Rev. 2011). "[A]n injury arises out of and in the cour[se] of employment even if it amounts to aggravation or exacerbation of a pre-existing condition." Hedge v. Leggett & Platt, Inc. , 641 So.2d 9, 13 (Miss. 1994).

¶ 30. The lay testimony from Swain, Moore, and Dye shows no contemporaneous report by Price of a work-related injury to or an aggravation of his neck or back on September 6, 2012. Instead, the testimony shows that on September 6, 2012, Price advised Swain that his back had been hurting for a long time and asked to take off the next day to go to a previously scheduled doctor's appointment. This testimony is consistent with the medical records of Dr. Albers, which do not mention a work-related injury, but instead note an ongoing history of neck and back pain. As Dr. Olinger noted, whether the injury at work did occur is in question, as Price did not even mention it to Dr. Albers the following day when such an injury or aggravation "would be fresh on his mind." In fact, the record shows Price waited almost two months to report his alleged work injury to his employer.

¶ 31. Although Dr. Crosby opined that Price's neck and back problems were causally related to his employment, Dr. Crosby acknowledged that he had not reviewed the medical records from the other physicians prior to his deposition but, instead, based his opinions on the history provided by Price. Dr. Crosby was given the opportunity to review the medical records during his deposition and testified that his opinions regarding causation did not change. However, Dr. Crosby emphasized that his causation opinions were based solely on the history provided by Price.

¶ 32. Dr. Crosby testified as follows:

A. But on the day of [Price's] first visit with my office, despite the fact that he had what you've shown me this morning about chronic problems with his spine, he indicated that in mid-September he was doing fine without neck pain at that point when he had an acute injury .... So at that point, I attributed what I was looking at on his cervical MRI as an acute injury .... But based on what he told me, I'm attributing the cervical problems to an acute injury and the lower back to an aggravation of a preexisting problem.
....
Q. Are you able to testify to a reasonable degree of medical probability whether that is an acute condition versus a long-standing or degenerative-type change?
A. Right. So the snapshot of the MRI scan, I don't have prior ones to compare it to. I don't have any way to say when that happened. I can only base that on when the patient tells me his symptoms were aggravated.
Q. And if there is no contemporaneous report of an injury to his employer and no documented injury in his September records, you still find this patient more credible than those physicians and his employer?
A. I do.
Q. Why is that?
A. Well, I'm not comparing his veracity to employers and other physicians. I'm basing it on what he told me that morning.

¶ 33. "When a physician bases his medical opinion on the subjective complaints of his patient, the patient's credibility then becomes the issue for determination by the Commission." Airtran, Inc. v. Byrd , 953 So.2d 296, 300 (¶ 8) (Miss. Ct. App. 2007). Here, the Commission implicitly determined Price to be incredible. See id. Such determination is supported by the record, as Price's reported history to Dr. Crosby is different from what he reported to Dr. Albers and nurse Hodges shortly after his injury. Price's reported history to Dr. Crosby is negated by the medical records following his alleged injury, which do not report sudden or immediate pain, but instead indicate longstanding neck and back pain, with no acute or discrete injury.

¶ 34. Additionally, the medical testimony is conflicting. Dr. Crosby attributed Price's low-back pain to an aggravation of a preexisting condition. However, Dr. Murrell found no aggravation in Price's underlying condition. Although Dr. Olinger opined that the episode on September 6, 2012 "at most ... may have aggravated the situation," he testified during his deposition that he has had patients with ongoing neck and back pain that gradually worsened without regard to their daily work activities. Moreover, Dr. Olinger agreed that assuming Price did not report any work-related injury to his employer, and in light of the history given to Dr. Albers, Price's problems were not related to his work.

¶ 35. "Where there is conflicting medical testimony, the Commission has the responsibility to apply its expertise and determine which evidence is more credible." Washington v. Woodland Village Nursing Home , 25 So.3d 341, 355 (¶ 33) (Miss. Ct. App. 2009). "We will uphold that determination unless it is clearly erroneous." Id .

¶ 36. Here, the Commission reviewed the record, including the conflicting medical testimony, and ultimately determined which evidence was more credible. We cannot say that the Commission's determination was clearly erroneous. As the Commission properly stated in its order, "[Price's] proof on the issue of causal connection must rise above mere speculation or possibility, such as instances where the medical testimony is that it could have been one way just as well as the other." Vardaman S. Dunn, Mississippi Workers' Compensation § 273 (2d ed. 1978); see also S. Brick & Tile Co. v. Clark , 247 So.2d 692, 693-95 (Miss. 1971).

¶ 37. Considering the inconsistencies in Price's testimony, the inconsistencies in his reported medical history, the extended period of time between Price's alleged injury and his report of a work-related injury, and the conflicting medical testimony, we do not find the Commission erred in its determination that Price failed to carry his burden of proof as to causation.

¶ 38. Price claims the Commission "fail[ed] to apply or even acknowledge relevant law" regarding the "compensability of aggravations." However, the Commission correctly noted the necessary elements and burden of proof. At no point in its order did the Commission find, infer, or suggest that an aggravation of a preexisting condition was not a compensable injury. Instead, after "[h]aving thoroughly studied the record in this matter and the applicable law," the Commission simply found the evidence did not support a finding of causation related to Price's alleged injury on September 6, 2012.

CONCLUSION

¶ 39. We undertake only a limited review of the Commission's actions in regard to resolving disputed issues of fact and are not to interfere if we are satisfied that there is substantial evidence in the record to support the Commission's determination. See Mooneyham , 68 So.3d at 79 (¶ 6) ("If supported by substantial evidence, the appellate court is bound by the determination of the Commission 'even though the evidence would convince [us] otherwise, were we the fact-finder.' "). We do not reweigh the evidence and are not authorized to substitute our judgment for that of the Commission. Short v. Wilson Meat House, LLC , 36 So.3d 1247, 1251 (¶ 23) (Miss. 2010).

¶ 40. Overall, we are satisfied that there is substantial evidentiary support for the Commission's determination that Price failed to show the necessary causative link between his employment and his neck and back problems. Thus, we affirm.

¶ 41. AFFIRMED.

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

      Dr. Crosby was given the opportunity to review Price's medical records during his deposition.

      When MTD learned of the alleged work injury on October 30, 2012, the incident was immediately documented. The record provides no explanation of why MTD would be willing to complete an accident report on November 1, 2012, but would not have taken the same steps had Price in fact reported an injury on September 6, 2012.