text:
    Patricia MYATT, individually and on Behalf of all Wrongful Death Beneficiaries of Todd David Myatt, Deceased, Appellant/CrossAppellee, v. PECO FOODS OF MISSISSIPPI, INC., Appellee, and Winston Bailey, Appellee/Cross-Appellant.
    No. 2007-CA-01824-COA.
    Court of Appeals of Mississippi.
    Nov. 10, 2009.

      James Ashley Ogden, Jackson, attorney for appellant/cross appellee.
    Sheldon G. Alston, Jonathan Robert Werne, Jackson, attorneys for appellee.
    John B. MacNeill, Susan R. Bryan, Jackson, Attorneys for Appellee/Cross-Ap-pellant.

      Before LEE, P.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. In this wrongful death claim, Patricia Myatt (Patricia) appeals the Neshoba County Circuit Court’s granting of summary judgment in favor of Peco Foods of Mississippi, Inc. (Peco). Additionally, Winston Bailey, co-defendant of Peco, appeals the entry of the Rule 54(b) final judgment in favor of Peco. Finding that the trial court erred in granting the Rule 54(b) certification, we dismiss this appeal for lack of jurisdiction.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On July 7, 2005, Todd David Myatt was killed when he was run over by a tractor-trailer operated by Bailey. The accident occurred at a feed mill facility owned by Peco. Myatt was an employee of Mississippi Sales and Service (Mid-MS), a construction company that had been hired by Peco to erect a new structure at the Peco facilities. On the morning of the accident, Myatt and co-worker, Daryl Ro-bison, were instructed by the Peco plant manager, Gary Nelson, to begin a painting job in an area adjacent to the paved road where the tractor-trailer trucks were entering and unloading at the plant. When the men started working that morning, no trucks were in the work area. However, later that morning, there was a backup at the plant’s loading dock, and Peco allowed the trucks to park off the paved road in the adjacent area while waiting to unload. Bailey’s truck was parked directly in front of Myatt’s work area and was only about four feet away from where Myatt was painting. Bailey’s truck remained idling in that area for several hours. While Myatt was in the process of changing out a paint gun, Nelson, who could not see down the right side of Bailey’s truck, signaled Bailey to move the truck forward. When Bailey moved the truck, Myatt was pulled underneath the tires and killed.

¶ 3. On December 15, 2005, Patricia filed a complaint against Peco, Griffin Industries, Inc. (Bailey’s employer), Bailey, and John Does 1-5. The complaint alleged that the defendants, independently and in conjunction with one another, caused and/or contributed to Myatt’s death. Peco filed a motion for summary judgment on June 15, 2007. On September 20, 2007, the trial judge granted Peco’s motion and entered a final judgment certified in accordance with Mississippi Rule of Civil Procedure 54(b). Patricia now appeals the trial court’s grant of Peco’s motion for summary judgment. Additionally, Bailey has filed an appeal contesting the trial court’s entry of a Rule 54(b) final judgment for Peco. Finding that the trial judge abused his discretion in certifying the judgment under Rule 54(b) in favor of Peco, we dismiss this appeal for lack of jurisdiction.

WHETHER THE TRIAL COURT ERRED IN ITS ENTRY OF FINAL JUDGMENT FOR PECO UNDER RULE 54(b).

¶ 4. Bailey, in his appeal to this Court, asserts that the dismissal of Peco from the case pursuant to Rule 54(b) was improper. “Where a summary judgment dismisses some of the parties to a lawsuit, but not all of the parties, Rule 54(b) of the Mississippi Rules of Civil Procedure governs.” Fairley v. George County, 800 So.2d 1159, 1161(¶ 4) (Miss.2001). Rule 54(b) states:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

M.R.C.P 54(b). We review a Rule 54(b) judgment “under an abuse of discretion standard.” Laird v. ERA Bayshore Realty, 841 So.2d 178, 180(¶ 7) (Miss.Ct.App.2003) (citation omitted).

¶ 5. Although Bailey is a defendant in the underlying suit, he is not a party to the 54(b) judgment. “ ‘Standing’ is a jurisdictional issue which may be raised by any party or the Court at any time.” City of Madison v. Bryan, 763 So.2d 162, 166(¶ 20) (Miss.2000) (citing Williams v. Stevens, 390 So.2d 1012, 1014 (Miss.1980)). We find that Bailey does not have standing to appeal the 54(b) judgment as there is no evidence that he has a considerable stake in the outcome of this appeal. See Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333-34, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) (a party cannot appeal from a judgment unless he retains a personal stake in the outcome and is “aggrieved” by the judgment); see also Klamath Strategic Inv. Fund ex rel. St. Croix Ventures v. United States, 568 F.3d 537, 546 (5th Cir.2009) (“[a]s a general matter, a party who is not aggrieved by a judgment does not have standing to appeal it”). Bailey does not argue against the propriety of the trial court’s determination that Peco did not breach any legal duty owed to Myatt. Rather, his sole objection is that the entry of final judgment certified under Rule 54(b) would prejudice his defense in future proceedings. He has not, however, shown this Court what this prejudice might be.

¶ 6. Had Bailey not raised the issue, however, this Court would be required to address the appealability of the circuit court’s order on our own initiative. See Williams v. Delta Reg’l Med. Ctr., 740 So.2d 284, 285(¶ 5) (Miss.1999) (although a party fails to raise the issue as to whether the circuit court’s order is appealable, the appellate court “must address this question on [its] own initiative”); see also Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897, 899 (Miss.1987) (noticing “plain error in the improvident granting of [the] judgment,” the supreme court dismissed the appeal sua sponte for improper Rule 54(b) certification). Accordingly, we must address the propriety of the court’s Rule 54(b) certification in order to determine whether we have jurisdiction.

¶ 7. The intent of a Rule 54(b) judgment is “to ease the burdens associated with complex litigation and to allow parties whose liability in such cases has been adjudicated to reach a final resolution without undue delay.” Byrd v. Miss. Power Co., 943 So.2d 108, 111(¶ 9) (Miss.Ct.App.2006) (citing Cox, 512 So.2d at 900) (emphasis added). In Cox, the trial judge granted summary judgment and certified a Rule 54(b) judgment as to one cause of action in favor of the defendants, which Walter Del Cox, Jr. argued was in error. In its review, the supreme court acknowledged that Rule 54(b) was a “new concept in our state trial procedure” and provided “cautionary guidance” to the trial courts regarding the limitation of a Rule 54(b) judgment. Cox, 512 So.2d at 899. The court explained that the discretionary power of the trial court in granting a Rule 54(b) judgment “must be exercised ‘in the interest of sound judicial administration,’ taking into account ‘judicial administrative interests, as well as the equities involved.’ ” Id. at 900 (citing Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980)). The supreme court also recommended that “Rule 54(b) judgments be reserved for rare and special occasions” and advised attorneys and trial judges to exercise restraint in their utilization of Rule 54(b) to avoid “improper or unnecessary appeals.” Id. It further stated that before an attorney proposes a Rule 54(b) judgment to a trial court, he “should review Wright and Miller, Moore’s Federal Practice and Federal case law ... [and] trial judges should require such research and preparation before they even consider the propriety of granting it.” Id.

¶ 8. The supreme court advised the trial court not to issue a Rule 54(b) certification “unless the remainder of the case is going to be inordinately delayed, and it would be especially inequitable to require a party to wait until the entire case is tried before permitting him to appeal.” Id. The United States Court of Appeals for the Fifth Circuit has concurred with this stance, stating that Rule 54(b) certification should only be granted by the district court “when there exists some danger of hardship or injustice through delay which would be alleviated by immediate appeal; it should not be entered routinely as a courtesy to counsel.” PYCA Indus., Inc. v. Harrison County Waste Water Mgmt. Dist., 81 F.3d 1412, 1421 (5th Cir.1996); see also Page v. Gulf Oil Corp., 775 F.2d 1311, 1313 n. 2 (5th Cir.1985) (Rule 54(b) certification “should be reserved for a case where a delay in the appeal might result in prejudice to a party”).

¶ 9. In the present case, there was no discussion at the summary judgment hearing regarding a Rule 54(b) certification. However, the order for final judgment, which was prepared by counsel for Peco and entered by the trial judge, contained the Rule 54(b) language that there was “no just reason for delay.” The order did not contain any analysis or rationale for this conclusion. The Sixth Circuit Coui’t of Appeals has stated that a court should set forth its reasoning for issuing a Rule 54(b) certification. See Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 61 (6th Cir.1986) (a district court should review “competing considerations” in making its Rule 54(b) certification, and “state the ones considered to be most important”). Although other federal jurisdictions have not extended this requirement for articulated reasoning in cases where it was evident that the certification was warranted, they have accorded less deference to those instances where the court failed to do so. See Feinstein v. Resolution Trust Corp., 942 F.2d 34, 40 (1st Cir.1991) (if the district court’s justification for a 54(b) certification is “both apparent and sufficient, appellate jurisdiction attaches notwithstanding the court’s failure to state its reasons”); Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 171 (2nd Cir.2002) (although there are rare situations where the reason for certification may be so obvious no explanation is necessary, in order “[t]o avoid an unnecessary remand, district courts are always better served by providing a brief statement of their reasons”); Carter v. City of Philadelphia, 181 F.3d 339, 346 (3rd Cir.1999) (“the absence of an explanation by the district court [for its Rule 54(b) certification] does not pose a jurisdictional bar when the propriety of the appeal may be discerned from the record”); Fox v. Baltimore City Police Dep’t., 201 F.3d 526, 531 (4th Cir.2000) (deference is given to a district court’s “determination that a judgment is final and no just reason exists for delay”; however, less deference is accorded when “the court offers no rationale for its decision to certify”); Stockman’s Water Co. v. Vaca Partners, L.P., 425 F.3d 1263, 1265 (10th Cir.2005) (“clearly articulated” reasons should be given by a court when entering a Rule 54(b) certification “so that we can review a [Rule] 54(b) order more intelligently and thus avoid jurisdictional remands”); Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 166 (11th Cir.1997) (although a district court is not required to provide a reasoning for certification in every case, the failure to do so nullifies any deference which might otherwise be accorded the decision to grant a Rule 54(b) certification).

¶ 10. In Mississippi, our supreme court has echoed this view.

While we will not require a trial court to set forth specific reasons and findings prefatory to entering a Rule 54(b) judgment, we will look with disfavor on such judgment. Indeed, unless the reason the judgment was granted is clear from, the record, we will not search for a justification, but will vacate the appeal.

Cox, 512 So.2d at 901 (emphasis added). In this case, no explanation or reason was given by the trial court as to its justification for the entry of the final judgment for Peco, aside from the formulaic recitation of “no just reason for delay.” This failure by the trial court to include a reasoned explanation makes any review by this Court, as to whether there was an abuse of discretion in the entry of the Rule 54(b) judgment, merely speculative. See Solomon, 782 F.2d at 61 (the district court’s failure to give a reasoned statement regarding its entry of a Rule 54(b) judgment makes any appellate “judgment as to the propriety of certification speculative, both as to whether any consideration was given to the order and what factors were considered”); see also McAdams v. McCord, 533 F.3d 924, 928 (8th Cir.2008) (the district court’s failure to provide specific reasons for its Rule 54(b) certification, makes the review by the appellate court “more speculative and less circumscribed than would be the case had the court explained its actions more fully”). Consequently, this Court requested that the trial court submit additional findings regarding its reasoning for granting the Rule 54(b) certification. However, the trial court’s response was not instructive. It merely reiterated the court’s reasoning for granting summary judgment and, once again, stated that the Rule 54(b) final judgment was granted as “there is no just reason for delay.”

¶ 11. Although our supreme court has not required Mississippi trial courts to provide an articulated reasoning for a Rule 54(b) certification, we have stated that “[i]f there is nothing about a case that merits a Rule 54(b) judgment, this Court will dismiss the appeal despite a trial court’s mechanical use of the ‘no just reason for delay language.” Walters v. Walters, 956 So.2d 1050, 1054(¶ 13) (Miss.Ct.App.2007) (citing Cox, 512 So.2d at 900-01). Here, the record does not support the trial court’s entry of the Rule 54(b) judgment. There would not have been an inordinate delay in the trial proceedings if the trial court had not entered the Rule 54(b) certification. The trial date was set for October 29, 2007, only five weeks after the entry of the summary judgment in favor of Peco. It was merely upon Bailey’s filing of his notice to appeal that the trial judge granted a stay of trial proceedings pending the outcome of this appeal. In this case, the delay would have been minimal had Peco not requested, and the trial judge not certified, judgment pursuant to Rule 54(b).

¶ 12. Additionally, the underlying facts and the relationship of the claims involved were also factors against the entry of a Rule 54(b) judgment. In making a Rule 54(b) certification, it is proper for a court “to consider such factors as whether the claims under review were separable from the others remaining to be adjudicated and whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals.” Curtiss-Wright Corp., 446 U.S. at 8, 100 S.Ct. 1460. The United States Court of Appeals for the Sixth Circuit has reasoned that “the greater the overlap in the factual basis between the adjudicated and unadjudicat-ed claims, the greater the possibility that [a] court will have to revisit the same facts under a different theoiy in a second appeal.” Lowery v. Fed. Express Corp., 426 F.3d 817, 823 (6th Cir.2005). Rule 54(b) “attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties.” Solomon, 782 F.2d at 60. If there is “a commonality of operative facts” which underlies the claims and defenses of a case, Rule 54(b) certification is not warranted. Lowery, 426 F.3d at 823. In Byrd, 943 So.2d at 111(¶ 10), this Court found that the case, while involving multiple defendants, arose “from a single set of facts and raise[d] a limited number of issues.” Therefore, the granting of the Rule 54(b) certification, “as a practical matter, would result in piecemeal litigation.” Id. In the case currently before us, it was the combined acts of Peco and Bailey which allegedly contributed to the undivided injury which resulted, Myatt’s death. Therefore, we find that the “single set of facts” and relationship between the claims against Peco and Bailey were undeniably intertwined, thus making a Rule 54(b) certification in favor of Peco inappropriate.

¶ 13. Based on these factors, we cannot see where postponing the final judgment for Peco until the remaining claims could be adjudicated would have resulted in any prejudice, hardship, or injustice to any of the parties. Consequently, we conclude that the trial judge abused his discretion in granting a Rule 54(b) judgment in favor of Peco, and we dismiss this appeal for lack of jurisdiction.

¶ 14. THE APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLEE PECO FOODS OF MISSISSIPPI, INC.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE AND MAXWELL, JJ., CONCUR. ROBERTS, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING AND CARLTON, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . Rule 54(b) of the Federal Rules of Civil Procedure, which has similar language to the Mississippi rule, also requires an express determination that there is no just reason for delay.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Robert DUBOSE a/k/a Robert T. Dubose, Sr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-01170-COA.
    Court of Appeals of Mississippi.
    Nov. 10, 2009.

      Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Glenn Watts, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. A jury in the Jasper County Circuit Court convicted Robert T. Dubose of three counts of gratification of lust under Mississippi Code Annotated section 97-5-23(1) (Rev.2006). Dubose was sentenced to serve ten years for each count, with each sentence to run consecutively for a total of thirty years, in the custody of the Mississippi Department of Corrections (MDOC). Dubose filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied the motion, and Dubose filed the instant appeal. Dubose raises the following three issues: (1) the trial court erred in denying his motion for a new trial based on the misconduct of a juror; (2) the trial court erred in accepting the race-neutral reasons given by the State, regarding six African American jurors, after he raised a Batson objection; and (3) the trial court erred in denying his motion for a new trial because the verdict is against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS

¶ 2. Dubose and his wife, Mary Dubose (Mary), were married in 2000, and several years later, they adopted three children, C.D., L.D., and A.D. Mary testified that the children lived with them for a few years prior to the adoption. In March 2006, due to congestive heart failure, Mary was hospitalized for nearly a week. On March 22, 2006, Lyrita Moffit-Parker, an employee of the Jasper County Department of Human Services, received a report of alleged sexual abuse against C.D., L.D, and A.D. At that time, the children were ages nine, eight, and six, respectively. Parker testified that she went to the children’s school and interviewed all three children individually. Parker further testified that each child told her of numerous episodes of fondling and sexual battery committed by Dubose.

¶ 3. The children told Parker that the incidences of touching and sexual battery happened when Mary was absent from the home. Pursuant to an order issued by a youth court judge, the children were removed from Dubose’s home on March 22, 2006. About a week later, each child was examined by Dr. Patricia Tibbs, a pediatrician in Ellisville, Mississippi.

¶ 4. At trial, the three children described incidences wherein Dubose either touched them unlawfully or committed sexual battery upon them. C.D. testified that one evening while L.D. and A.D. were sleeping and Mary was away from their home, Du-bose asked her “if she wanted to have fun,” but she told him “no sir.” She went on to testify that a while later, Dubose returned and had her go to his bedroom and remove her “bottom” clothes. She further testified that he then “put his hand on [her] ‘private parts’,” and he had her put her leg over his leg. She stated that he then had her hold his penis, and he digitally penetrated her vagina. When asked, at trial, what threats, if any, were ever made by anyone, C.D. responded that “[Dubose] said that he would beat us to death if we tell [sic].”

¶ 5. Also, L.D. testified that one night while Mary was in the hospital, Dubose had her go to Dubose and Mary’s bed and remove her clothes. L.D. stated that Du-bose then touched her breasts and her “private part” with his hand. When asked whether she was ever threatened, L.D. responded that Dubose told her “[they] was [sic] going to get a beat down,” if she told anybody about the incident.

¶ 6. A.D., the last child to testify, described multiple incidences wherein Du-bose touched him unlawfully. A.D. stated that Dubose would kiss him and/or penetrate A.D.’s anus with either his hand or “private part.” A.D. also testified that Dubose had him touch Dubose’s “private part” with his mouth. C.D. and L.D. both testified that, at separate times, they each witnessed Dubose molest A.D. The children testified that the episodes of sexual abuse by Dubose against A.D. happened in either A.D.’s room or Dubose and Mary’s room. C.D. and L.D. testified that they peeked into the rooms through a curtain or slightly-opened door.

¶ 7. The record reflects that the testimony the children gave at trial was much the same as they told Parker and Dr. Tibbs. Dr. Tibbs testified that her examinations of the children revealed the children had physical injuries, which were healing, but were consistent with the account given by them. However, in response to cross-examination questions, Dr. Tibbs acknowledged that she could not rule out the possibility that some of the injuries could have been caused by something other than sexual battery. Specifically, A.D.’s anal fissures, or tears, could have been caused by constipation. But, Dr. Tibbs maintained that, despite the possibility, the tears were consistent with A.D.’s stated history of sexual abuse. Dr. Tibbs also testified that she found physical evidence that L.D.’s vagina had been sexually penetrated because L.D. had indicia of a healed tear of her hymen. After deliberating about an hour, the jury found Du-bose guilty of three counts of gratification of lust. On March 3, 2008, Dubose was sentenced to serve a total of thirty years in the custody of the MDOC. From his conviction and sentence, Dubose files this appeal.

I. WHETHER THE TRIAL COURT ERRED IN DENYING DUBOSE’S MOTION FOR A NEW TRIAL BASED ON THE MISCONDUCT OF A JUROR.

¶ 8. Dubose claims that he was denied a fair and impartial jury because juror number 8, Michael E. Thigpen, failed, during voir dire, to disclose his relationship to Dubose’s wife, Mary. According to Dubose’s brief to this Court, Thigpen was related to Mary’s ex-husband, Quillie McDonald (McDonald). For resolution of this issue, we consider the following:

Where a prospective juror in a criminal case fails to respond to a question by defense counsel on voir dire, the [cjourt should determine whether the question was (1) relevant to the voir dire examination, (2) whether it was unambiguous, and (3) whether the juror had substantial knowledge of the information sought to be elicited. If all answers to the above questions are affirmative, then the court determines if prejudice to the defendant in selecting the jury could be inferred from juror’s failure to respond.

Barker v. State, 463 So.2d 1080, 1083 (Miss.1985). The record reveals that the questions presented during voir dire were relevant questions, and they were not ambiguous. Therefore, we look at the third factor: whether Thigpen had substantial knowledge of the information sought. We also determine whether prejudice during the jury selection can be inferred.

¶ 9. Dubose claims that Yolanda Street-er, daughter of Mary and McDonald, confronted juror Thigpen about his recognition of, or relationship with, Mary after voir dire of the prospective jurors. Du-bose states, “it is believed that Thigpen simply smiled in response.” According to Dubose, Streeter did not disclose this interaction between her and Thigpen, at the time of the trial, because she did not want to get Thigpen in trouble for failing to reveal his relationship to Mary’s ex-husband. ' In determining whether Thigpen had substantial knowledge of the information sought, we consider the record of the voir dire proceedings.

¶ 10. The record reveals that Thigpen readily acknowledged he recognized Streeter, Mary’s daughter and potential witness. As well, he stated that Streeter’s husband was his classmate. The following transpired during voir doire:

[Defense attorney]: I believe we already went through Mary Dubose, who will be one of the defense witnesses. Yolanda Streeter ..., if you would, please stand up.
[Defense attorney]: Yolanda is a potential defense witness, as well. Does anybody here know Yolanda Streeter?
[Defense Attorney]: Number 8 [Thig-pen]?
[Thigpen]: Her husband is my classmate.
[Defense attorney]: Her husband is your classmate? Okay. Does that fact influence you one way or the other? Do you know her personally, or do you just know her husband as your classmate? [Thigpen]: I know of her. I don’t know her personally.

¶ 11. Additionally, Thigpen and the ve-nire were questioned by the trial judge as to their willingness to determine a verdict based only upon the testimony and exhibits presented at trial. The record reflects the following:

Court: Under the law, you’re to decide this case based on two things and two things alone. That is the evidence which will come to you in the form of oral testimony from the witness stand and the physical articles that we call exhibits that you’ll be allowed to pass among yourselves and examine.
And secondly, the law, which will be read to you at the conclusion of the testimony but prior to the closing statements of the attorneys. Now, I told you that in order to ask you this: Can each of you decide this case based on those two things and those two things alone?
Jury: (no verbal response.)
Court: Is there anyone who cannot do so?
Jury: (No verbal response.)
Court: Is there anything on your mind you feel you should make known to the parties, the attorneys or the [c]ourt which might affect your ability to be a fair, impartial, and attentive juror throughout the trial of this case?
Jury: (No verbal response.)

¶ 12. Thigpen indicated that he would not be influenced by the fact that he knew one of the witnesses or their spouse, and he would make a decision based upon evidence presented at trial. During jury selection, neither the State nor the defense questioned the attentiveness of Thigpen during voir dire or challenged him as a juror. Furthermore, Mary did not recognize Thigpen. In his brief to this Court, Dubose acknowledges that “Mary Dubose did not recognize Thigpen as McDonald’s cousin at the trial[ ] and only learned of his identity on February 27 or 28, 2008.” Possibly Mary did not recognize Thigpen because, according to her testimony, she had been divorced from McDonald for about twenty years at the time of the trial. Mary was the only witness for the defense, and her testimony primarily consisted of her stating that the children never told her of any abuse. And, she stated the only time she was away from the children or their home was while she was in the hospital during March 2006. Dubose did not testify at trial, nor did Streeter.

¶ 13. As mentioned, Thigpen readily revealed that he “knew of’ Streeter because her husband was his classmate. Dubose has offered no motive that Thigpen may have had for not acknowledging a possible familial relationship with McDonald or how he was prejudiced and denied a fair trial. Given that Thigpen readily acknowledged he recognized Mary’s daughter, who was presented at trial as a possible witness, it stands to reason, he would have been forthcoming about any other knowledge he may have had concerning Mary and her ex-husband.

¶ 14. Following the trial, Dubose filed three motions for a judgment notwithstanding the verdict or, in the alternative, for a new trial. Both Thigpen and Street-er were subpoenaed to appear and testify concerning Thigpen’s relationship to McDonald. However, the record indicates that service of process was never completed. A hearing on Dubose’s motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial was held on August 26, 2008, and Dubose’s motion was denied. The record does not indicate whether Streeter or Thigpen were present to testify concerning this matter. After carefully examining the record, we are satisfied that there is neither any inference that Dubose was prejudiced during jury selection and denied a fair trial, nor do we find that the trail court committed reversible error in declining to grant a new trial on this ground. This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN ACCEPTING THE RACE-NEUTRAL REASONS GIVEN BY THE STATE, REGARDING SIX AFRICAN AMERICAN JURORS, FOLLOWING A BATSON OBJECTION.

¶ 15. Dubose next contends that the State used all six of its peremptory strikes to eliminate six African Americans from the venire for racially-motivated reasons. He argues that the reasons offered by the State, following his Batson objection, were merely pretextual. Dubose claims that the State “clearly engaged in disparate treatment[,] and the reasons for striking the jurors were insufficient.” We disagree.

¶ 16. “Under Batson, the party objecting to the peremptory challenge must first make a prima facie showing that race was the criteria for the exercise of the peremptory strike.” Finley v. State, 725 So.2d 226, 239(¶ 59) (Miss.1998) (citing Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). The burden then shifts to the party exercising the challenge to offer a race-neutral explanation for striking the potential juror, and the trial court then determines if the peremptory strike was offered for purposeful discrimination. Id. at 240(¶ 59) (citation omitted).

¶ 17. If the trial court accepts the prosecutor’s race-neutral reasons for a strike, our standard of review of the trial court’s decision is as follows:

This Court accords great deference to the trial court in determining whether the offered explanation under the unique circumstances of the case is truly a race-neutral reason. This Court will not reverse a trial judge’s factual finding on this issue unless they appear clearly erroneous or against the overwhelming weight of the evidence. One of the reasons for this is because the demeanor of the attorney using the strike is often the best evidence on the issue of race-neutrality.

Le v. State, 913 So.2d 913, 926(¶ 26) (Miss.2005) (internal citations and quotations omitted). However, despite our deferential standard of review, we remind our trial courts that a facially race-neutral explanation for a peremptory challenge should never be sufficient, standing alone, to meet a Batson objection. Batson requires more. Batson mandates that the trial judge determine whether the facially race-neutral reason is in fact a pretext for purposeful discrimination: a “smokescreen,” if you will.

¶ 18. The trial judge should consider: the racial composition of the venire panel summoned and qualified to serve, the racial composition of the potential jurors actually considered for jury service in the case, and the racial composition of the jurors and alternates who actually served. Without such consideration, it is extraordinarily difficult, if not impossible, for either the trial judge or an appellate court to determine if a stated race-neutral reason is pretextual, regardless of whether it is presented by the prosecution or the defense. Situations may occur wherein an attorney may use all of his or her peremptory strikes to excuse jurors of only one race without it indicating racial motivation. For instance, when the racial composition of the jurors under consideration is ninety percent one race, it is not as likely there will be a heightened sense of racially-motivated pretext when a party strikes six jurors of that same race since nine out of every ten jurors under consideration by the proponent of the race-neutral reason would be of the same race. It is quite another situation where a party uses all six of his or her peremptory strikes to excuse jurors of only one race leaving no, or few, remaining jurors of that same race on the panel. A trial judge must consider the entire voir dire proceedings, and all of the inherent facts therein, when considering claims of racially-motivated peremptory strikes.

¶ 19. The supreme court has recognized the potential to manipulate voir dire proceedings in order to eliminate prospective jurors solely on the basis of race. In Flowers v. State, 947 So.2d 910, 937(¶ 69) (Miss.2007), Justice Graves speaking for the supreme court, stated the following:

Because racially-motivated jury selection is still prevalent twenty years after Batson was handed down ... we agree that it is necessary to reconsider Bat-son’s test and the peremptory challenge system as a whole. While the Batson test was developed to eradicate racially discriminatory practices in selecting a jury, prosecuting and defending attorneys alike have manipulated Batson to a point that in many instances the voir dire process has devolved into an exercise in finding race[-]neutral reasons to justify raciallyH motivated strikes. When Batson was handed down, Justice Marshall predicted that[:] Merely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge. Unfortunately, ... Justice Marshall was correct in predicting that this problem would not subside. His solution to this problem was to ban peremptory challenges outright, a position later advocated by Mississippi Supreme Court Justice Michael Sullivan.

(Internal citations and quotations omitted). We are aware that making the determination whether a stated race-neutral reason is pretextual may be the equivalent of attempting to discern someone’s thoughts and heart. However, as long as the peremptory-challenge system remains, a determination of pretext must be made.

¶ 20. We commend our trial judges and recognize they are in a uniquely-advantageous position to make this call because they are present in the heat of the battle and can observe and sense the true motivations of the proponent from all the relevant surrounding circumstances. However, we urge our trial judges and attorneys to make and furnish an adequate record from which an appellate court may fully analyze the voir dire proceedings. As mentioned, without information relating to the entire racial and/or gender composition of the venire and the petit jury, it is extraordinarily difficult, if not impossible, for an appellate court to declare the trial judge’s decision clearly erroneous or against the overwhelming weight of the evidence. Our research of the record in the instant case has not revealed the racial composition of the venire panel or the jury. With that limitation, we now consider the race-neutral reasons given by the State for striking six African Americans from the jury, and we evaluate them according to precedent and facts that are apparent from the record.

¶ 21. First, at trial, Dubose claimed that Juror No. 4, Johnny Pierce, was excluded without the State giving a race-neutral reason. The State responded that “Mr. Pierce was wanting to get off the panel, Your Honor. And[,] he was not attentive when I was talking with him. And[,] ... he was looking the other way. Just his attitude and his inattentiveness, Your Honor.” The trial judge stated that “inattentiveness is a legitimate reason, [s]o I’ll allow that strike.” The trial judge was correct: “Inattentiveness alone has been accepted as a race-neutral explanation for the exercise of a peremptory strike.” Hicks v. State, 973 So.2d 211, 220(¶ 28) (Miss.2007).

¶ 22. Second, Juror No. 9, Makita Jones, was excluded by the State because she failed to respond to the State’s question of whether any jurors or any member of their family had sexual allegations lodged against them. The State attempted to have Jones struck for cause because, after voir dire, Parker informed the State that, at one time, Jones’s husband had been accused of molestation. The defense counsel objected to striking her for cause because the conversation between Parker and the State’s counsel occurred off the record and was irrelevant unless Jones was questioned on the record about the matter. The trial judge responded that “it [was] certainly good grounds for a peremptory challenge.” Following the State’s race-neutral reasons for striking Jones, the defense counsel made no response, and the trial judge found the reason to be both race and gender neutral.

¶ 23. The likelihood that Jones would have possessed bias due to possible allegations against her husband for the same crime with which Dubose was charged was undoubtedly a race-neutral reason for striking Jones. As well, she would have likely been excused for cause had further questioning verified Parker’s statement to the State, which was that Jones’s husband had indeed been accused of molestation. Given the presumed prejudice for withholding this type of information, we find no error in the trial judge’s acceptance of the State’s race-neutral reason. Furthermore, at trial, the defense counsel offered no further challenge to the State’s use of a peremptory strike to excuse Jones from the jury panel.

¶ 24. Third, Juror No. 14, Robert Magee, was struck because he “showed more attentiveness to [the defense counsel],” and he knew Streeter and her husband. The defense counsel responded that the State had already accepted a juror that knew Streeter and her husband, which was Thigpen, and argued that a juror paying more attention to him instead of the State’s counsel was not a race-neutral reason. The State responded that, in addition to those reasons, there had been several arrests in the Magee family. The trial judge stated that he would allow it, but he would reconsider it later, if he found out that it was improper to accept a juror who knew the same witness as a juror that was rejected, and that was the sole reason. However, the trial judge recognized that the State had assigned other reasons than Magee’s mere knowledge of Streeter, so on the whole, he determined that they were race-neutral reasons.

¶ 25. “Reasons this Court has accepted as race-neutral include being single with children, having short-term employment, and having a friend or family member charged with a crime.” Pruitt v. State, 986 So.2d 940, 945(¶ 17) (Miss.2008) (citing Magee v. State, 720 So.2d 186, 188—89(¶ 9) (Miss.1998)). Additionally, this Court has held that living in an area of “high crime” is an acceptable, race-neutral reason. Id. (Citing Lynch v. State, 877 So.2d 1254, 1271-72(¶ 51) (Miss.2004)). Based upon Pruitt and Lynch, there was no error in the trial judge’s acceptance of the State’s race-neutral reasons of Magee’s family’s history with law enforcement and Magee’s inattention during questioning.

¶ 26. Fourth, Juror No. 17, Bobby Chapman, was struck because several members of his family had been arrested by the Jasper County Sheriffs Department, and Chapman, himself, was known by the sheriff because of his family’s prior “run-ins” with law enforcement. The defense counsel found the reason to be “guilt by association” and; therefore, it was not a racial-neutral reason. The trial judge stated that he recalled that the supreme court had held that arrests "within a family of prospective jurors was a race-neutral reason. Based upon Pruitt, stated above, we find no error in the trial judge’s decision.

¶ 27. Fifth, Juror No. 21, Mack A. Holder, Jr., was struck because: he, too, had family members who had been arrested; he and his family were known by law enforcement; and the State believed that Holder had been arrested as well. The defense counsel responded, once again, that it was guilt by association, and there was no proof that Holder himself had been arrested. For the same reasons set forth for jurors Chapman and Magee, we find no error in the trial judge’s decision to find the State’s reasons to be race-neutral.

¶ 28. Sixth, Juror No. 24, Mary Anne Barnett, was struck because she knew Dubose from church services, where he played the organ. There was some dispute as to whether she actually attended the same church as Dubose. However, during voir dire, she stated that she “[saw] [Dubose] at church.” The trial judge found “the mere fact that she saw him [was] sufficient for a peremptory strike.”

¶ 29. Similarly, in Council v. State, 976 So.2d 889, 897(¶ 12) (Miss.Ct.App.2007), the defendant argued that the exercise of a peremptory challenge against a juror because the juror attended church with the defense counsel was not in violation of Batson. In Council, this Court acknowledged that the record did not verify that the juror actually attended the same church as the defense counsel, but we determined that a peremptory challenge based upon the family friendship with the defense counsel was not in violation of Batson. Id. However, the error caused from the improper exclusion of the prospective juror was found to be harmless. Id. Accordingly, we find any error in the acceptance of the State’s race-neutral reason for striking juror Barnett was harmless.

¶ 30. “Batson was originally intended to prevent racial discrimination in the use of peremptory challenges during jury selection by the State. The application of Bat-son has since been expanded in scope several times and now extends to, among other things, the use of peremptory challenges by criminal defendants.” Parker v. State, 5 So.3d 458, 462(¶ 14) (Miss.Ct.App.2008) (citing Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992)).

¶ 31. Dubose used all six of his peremptory strikes to eliminate Caucasian jurors. Following a McCollum objection by the State, Dubose offered many of the same race-neutral reasons as the State had: namely, inattentiveness and knowledge of potential witnesses. Based upon the juror’s names, it appears that the selected jurors consisted of eight females and four males, and, as stated, the record does not reflect the overall composition of the jury as to race. After thoroughly studying the record and applicable case law, we find that Dubose failed to meet his burden of proving purposeful discrimination, and we find that the trial judge’s rulings on the Batson challenges were neither clearly erroneous nor against the weight of the evidence. This issue is without merit.

III. WHETHER THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 32. Dubose contends that “at a minimum [he] is entitled to a new trial as the verdict is against the overwhelming weight of the evidence.” He argues that “there was almost no evidence that Dubose sexually assaulted any of the children.” We disagree. This Court sits as a “thirteenth juror” when determining whether a jury verdict is against the overwhelming weight of the evidence. Jenkins v. State, 947 So.2d 270, 278(¶ 24) (Miss.2006). We must accept as true the evidence which supports the verdict, and we will reverse only when convinced that the trial court abused its discretion in failing to grant a new trial. Id. (citing Baker v. State, 802 So.2d 77, 81(¶ 14) (Miss.2001)). Sitting as the “thirteenth juror,” we now recap some of the evidence presented to the jury.

¶ 33. In graphic detail, all three children testified that Dubose had touched them with either his hands, mouth, and/or penis. A.D. and C.D. testified that Dubose had committed both oral and anal sex upon A.D., and the children testified that Du-bose had sexually battered both C.D. and L.D. All three children stated that the touching and assaults occurred when Mary was gone from their home and/or in the hospital. Parker, a twenty-year veteran with the Jasper County Department of Human Services, testified that she received a report of alleged sexual abuse against the three children on March 22, 2006. Mary testified that she was in the hospital in March 2006 for nearly a week.

¶ 34. Parker further testified that she interviewed all three children individually at their school, and after the children’s account of the events stated above, she sought a hearing before a youth court. The children were removed from the home, and they were later taken to Dr. Patricia Tibbs, a pediatrician, in Ellisville, Mississippi. Dr. Tibbs testified that all three children had injuries consistent with the children’s account of sexual abuse.

¶ 35. The jury heard that L.D.’s hymen had indicia of vaginal penetration, and that A.D. had two anal fissures that were healing. Dubose attempts to discount Dr. Tibb’s testimony by asserting that she only testified as to whether a sexual battery occurred, not to an unlawful touching. This is unpersuasive given that it is improbable that a sexual battery would have occurred in the absence of an unlawful touching. “The lustful touching of a child under fourteen is not necessarily a lesser [-^included offense of statutory rape. Lustful touching is, however, a lesser[-]related offense.” Branch v. State, 998 So.2d 411, 417(¶ 27) (Miss.2008) (internal citations and quotation omitted). Although Dubose was neither indicted nor convicted of statutory rape, the supreme court’s analysis regarding lustful touching and statutory rape is analogous to lustful touching and sexual battery. The record indicates that both Dr. Tibb’s and Parker’s reports and testimonies corroborated the children’s rendition of what occurred.

¶ 36. Dubose emphasizes that A.D.’s testimony regarding the number of times Dubose touched and/or sexually assaulted him varied from the testimony given by A.D. and C.D. In response to the defense attorney’s questions, such as “did this happen more than twenty times?” or “did this happen more than forty times?,” A.D. said that it happened up to one hundred times. On redirect, A.D. testified that it happened more than five times. A.D. was about six years old when the episodes occurred, and it had been approximately two years by the time of the trial. Credibility of A.D.’s testimony and consideration of his tender age was a fact for the jury to weigh.

¶ 37. “Mississippi courts generally allow children of tender years to testify if competent.” Mohr v. State, 584 So.2d 426, 431 (Miss.1991). “Rule 601 of the Mississippi Rules of [E]vidence provides that every person is competent to be a witness unless they are incompetent or otherwise restricted.” Id. “It is in the sound discretion of the trial judge to determine the competency of a child witness.” Id. After studying AD.’s testimony and the record, we find that he was a competent witness. He exhibited the ability to understand and answer questions; he remembered events; and his testimony was consistent with the statements he had made previously to Parker and Dr. Tibbs.

¶ 38. Dubose asserts that the jury did not find him guilty of sexual assault, and he argues that “[i]f the alleged victims were credible as to their allegations of fondling, then there [was] no reasonable basis for a jury to conclude that they were not credible as to their allegations of sexual assault.” We interpret this to mean that Dubose argues the verdicts were inconsistent. Although we disagree, we note that: “[I]nconsistent or even contradictory verdicts are not, in and of themselves, reasons to overturn a criminal conviction.” George v. State, 752 So.2d 440, 443(¶ 20) (Miss.Ct.App.1999). As shown above, Mississippi Code Annotated section 97-3-95 requires sexual penetration in order to convict a defendant of sexual battery. Sexual penetration is not required to prove an unlawful touching. During deliberations, the jury sent a note to the trial judge asking the judge the following question: “Define sexual penetration in reference to sexual battery.” The trial judge responded that the law did not permit him to instruct them at that point in time. The fact that the jury did not find Dubose guilty of sexual battery does not vitiate the evidence as to touching. It simply means that the jury was discerning and did not find sufficient evidence to support the sexual battery charges. “The jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Nix v. State, 8 So.3d 141, 146(¶ 26) (Miss.2009) (citing Mohr, 584 So.2d at 431). Furthermore, an independent appellate review of the sufficiency of the evidence for the charge for which Du-bose was convicted provides adequate protection from juror irrationality or error. Chambers v. State, 973 So.2d 266, 270-271(¶ 12) (Miss.Ct.App.2007). For the foregoing reasons, we find that the verdict is not against the overwhelming weight of the evidence.

CONCLUSION

¶ 39. Finding that Dubose’s arguments are without merit for the foregoing reasons, this Court affirms the convictions and sentences.

¶ 40. THE JUDGMENT OF THE JASPER COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, GRATIFICATION OF LUST, AND SENTENCE OF TEN YEARS; COUNT II, GRATIFICATION OF LUST, AND SENTENCE OF TEN YEARS TO RUN CONSECUTIVELY TO COUNT I; AND COUNT III, GRATIFICATION OF LUST, AND SENTENCE OF TEN YEARS TO RUN CONSECUTIVELY TO COUNTS I AND II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JASPER COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR.

      . Mississippi Code Annotated section 97-5-23(1) provides:
      (1) 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 under the age of sixteen (16) years, with or without the child's consent, or a mentally defective, mentally incapacitated or physically helpless person as defined in Section 97-3-97, shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court.
      We note that the terms “molestation,” "touching,” and "fondling" may be used interchangeably, but regardless of the term used, Mississippi Code Annotated section 97-5-23 has been called the "gratification of lust” statute and/or the "unlawful touching” statute. Friley v. State, 879 So.2d 1031, 1033 n. 4 (Miss.2004).

      . To protect their identity, the names of the minor children will be referred to by initials.

      . Sexual battery is defined by Mississippi Code Annotated section 97-3-95 (Rev.2006), and it provides in relevant part: (1)“A person is guilty of sexual battery if he or she engages in sexual penetration with: ... (d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.”
      Dubose was also indicted on two counts of sexual battery, one against C.D. and one against A.D. During jury deliberations, the jury sent a note to the judge asking for a definition of sexual penetration in regard to the charge of sexual battery. In response, the judge informed the jury that the law prohibited him from giving them further instructions at that time. The jury found Dubose not guilty of the sexual battery charges.

      . Dr. Tibbs's testimony pertaining to L.D.'s physical injury was met with an objection by Dubose’s counsel because Dubose was indicted for sexual battery of C.D. and A.D., not L.D. The objection was overruled.

      . Dubose's brief to this Court slates that “[u]pon information and belief, Thigpen is the cousin of Quillie McDonald....”

      . The record does not indicate where the two were classmates.


author: MAXWELL, J.,

text:
    Billy J. COSSEY, Appellant, v. Nancy L. COSSEY, Appellee.
    No. 2008-CA-00829-COA.
    Court of Appeals of Mississippi.
    Nov. 10, 2009.

      Helen Bagwell Kelly, Adam A. Pittman, Batesville, attorneys for appellant.
    Joe M. Davis, New Albany, attorney for appellee.
    Before MYERS, P.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court.

¶ 1. Billy J. Cossey alleges the Pontotoc County Chancery Court erred in (1) granting him a divorce from his wife, Nancy L. Cossey, on irreconcilable differences grounds; (2) awarding unreasonable visitation rights between him and his nineteen-year-old son, Tyler Cossey; (3) ordering him to pay one-half of the college expenses for Tyler; and (4) administering the equitable distribution of assets. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Billy and Nancy have been married to each other twice. Their most recent marriage took place on March 4, 1977. The couple has three children: Dionne Gu-ter Cossey; Billy Cossey Jr.; and Tyler. Their youngest son, Tyler, was born on July 18, 1988, and was not emancipated at the time of trial.

¶ 3. Billy and Nancy separated in January 2002. Over five years later, on September 5, 2007, Billy filed his complaint for divorce. He alleged adultery, desertion, and habitual cruel and inhuman treatment as grounds for the divorce. The complaint also contained an alternative claim that irreconcilable differences existed between him and Nancy. Nancy denied the allegations, and filed a counter-complaint for divorce on the grounds of desertion, adultery, and habitual cruel and inhuman treatment. In the alternative, she argued irreconcilable differences existed between the two of them. Nancy also sought legal and physical custody of Tyler. Billy denied the allegations in Nancy’s counter-complaint.

¶ 4. Thereafter, on March 17, 2008, Billy and Nancy filed a consent agreement. The two agreed to a divorce based on irreconcilable differences, but set forth twenty-three separate areas of dispute for the chancellor to resolve. Among the contested issues were identification, valuation, and distribution of the marital assets. Nancy also requested past and future child support, medical expenses, and college expenses for Tyler. They also disagreed over the paternity of Tyler, whom Billy contended was not his natural son, though he had raised him as his son since birth.

¶ 5. After a two-day trial, the chancellor granted Billy and Nancy a divorce based on irreconcilable differences. The chancellor entered a twenty-eight page judgment in which he directed the equitable distribution of the marital assets, and ordered the parties and Tyler to undergo paternity testing. The chancellor conditioned his rulings concerning custody, visitation, and past and future child support, medical expenses, and college expenses on the outcome of the paternity tests.

¶ 6. The chancellor awarded legal and physical custody of Tyler to Nancy. He granted Billy visitation with Tyler according to Tyler’s wishes. The chancellor also ordered Billy to provide child support to Nancy. The child support award was based on fourteen percent of Billy’s adjusted gross income. The chancellor further held the college expenses of Tyler would be borne equally by Billy and Nancy.

¶ 7. Nancy was also awarded $10,403.05 for past school expenses, child support, and medical expenses.

STANDARD OF REVIEW

¶ 8. We will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002). We review questions of law de novo. Estate of Jones v. Howell, 687 So.2d 1171, 1174 (Miss.1996).

ANALYSIS

I. Divorce on Ground of Irreconcilable Differences

¶ 9. “[D]ivorce in Mississippi is a creature of statute.” Perkins v. Perkins, 787 So.2d 1256, 1261(¶ 11) (Miss.2001) (quoting Gardner v. Gardner, 618 So.2d 108, 111-13 (Miss.1993)). A divorce based on irreconcilable differences has certain statutory requirements that must be strictly complied with. Id.; see also Irby v. Estate of Irby ex rel. Marshall, 7 So.3d 223, 239(¶ 54) (Miss.2009). Mississippi Code Annotated section 93-5-2 (Supp. 2008) provides the procedure for divorce on the ground of irreconcilable differences. Specifically, section 93-5-2(3) allows parties who desire an irreconcilable differences divorce, but cannot agree on custody, maintenance, or property division, to consent to allow the chancery court to decide the disputed issues. The consent agreement must be in writing and signed by both parties. Id. In addition, the parties must acknowledge that the decision of the court will be a binding and lawful judgment. Id.

¶ 10. Section 93-5-2(5) requires withdrawal or cancellation of a party’s original denial or contest before an irreconcilable differences divorce may be granted as follows:

Except as otherwise provided in subsection (3) of this section, no divorce shall be granted on the ground of irreconcilable differences where there has been a contest or denial; provided, however, that a divorce may be granted on the ground of irreconcilable differences where there has been a contest or denial, if the contest or denial has been withdrawn or cancelled by the party filing same by leave and order of the court.

¶ 11. Billy alleges the chancellor erred in granting an irreconcilable differences divorce because the parties did not withdraw or cancel their former contests or denials, as required by section 93-5-2(5). However, Nancy argues the filing of a consent agreement, pursuant to section 93-5-2(3) satisfied the statutory requirements for a divorce based on irreconcilable differences.

¶ 12. Recently, in Irby, the supreme court addressed this identical issue. Irby, 7 So.3d at 236, 239-40 (¶¶ 43, 54). In Irby, the supreme court found that where parties filed a consent agreement in compliance with Mississippi Code Annotated section 93-5-2(3), a chancellor may order a divorce on the ground of irreconcilable differences even though the parties did not move to withdraw their contests. Irby, 7 So.3d at 239-40(¶ 54) (citing Miss.Code Ann. § 93-5-2). More specifically, the supreme court instructed:

The plain language of subsection (5) mandates that a contest or denial be withdrawn or canceled, by leave and order of the court, by the party who filed the contest or denial. This is a procedural safeguard which has existed within the framework of [sjection 93-5-2 since its promulgation. However, the exception clause, which was added in 1990 when the statute was amended to provide for “trial by mutual consent,” clearly indicates that subsection (5) should be read in conjunction with subsection (3). Once the parties fully and properly acceded to the procedural strictures of subsection (3), the safeguards provided by subsection (5) were no longer necessary.

Id. (emphasis added and internal citation omitted). We recently applied Irby ⅛ holding in Sellers v. Sellers, 22 So.3d 299, 2007-CA-01459-COA (¶ 22) (Miss. Ct.App. June 23, 2009). A few months later, in O’Neal v. O’Neal, 17 So.3d 572 (¶ 18) (Miss.2009), the supreme court revisited this identical issue and reaffirmed Irby ⅛ holding, noting “[t]he Irby decision made it exceedingly clear that, pursuant to Mississippi Code [Annotated] Section 93-5-2, no ... withdrawal of the initially asserted fault-based grounds is necessary.”

¶ 13. In the present case, the parties complied with the requirements of subsection (3) and filed a consent agreement prior to trial. This written agreement, which was signed by both parties, indicated “the parties have agreed there are irreconcilable differences between them and agree and consent that a divorce be granted to them on grounds [sic] of irreconcilable differences.” The consent agreement also contained stipulated issues of dispute between the parties for the chancellor to determine. Further, the terms of the consent agreement made clear that after the chancellor commenced the hearing, the parties could not withdraw their consent without leave of court.

¶ 14. We find the parties provided express written consent to permit the chancellor to decide each of the issues and explicitly acknowledged they understood the chancellor’s decisions would be binding. Because the parties fully and properly acceded to the procedural strictures of Mississippi Code Annotated section 95-5-2(3), we find the safeguards provided by subsection (5) — namely the withdrawal of any contest or denial — were no longer necessary.

¶ 15. We reach this decision, as we did in Sellers, by strictly applying the supreme court’s recent interpretation of section 95-5-2(3) and (5). Accordingly, we find the chancellor did not err in granting a divorce based on irreconcilable differences.

II. Visitation

¶ 16. Billy next argues the chancellor abused his discretion in granting Billy limited visitation with Tyler. His complaint is based on the chancellor’s acceptance of Tyler’s desires, rather than Billy’s.

¶ 17. The right and obligation for visitation ceased upon Tyler’s twenty-first birthday, which was July 15, 2009. Miss. Code. Ann. § 93-11-65(8)®; see also Caldwell v. Caldwell 579 So.2d 543, 549 (Miss.1991) (“In a general sense, parental emancipation signifies a surrender and renunciation of the correlative rights and duties touching the care, custody, and earnings of the child.”). The supreme court has stated that “[c]ases in which an actual controversy existed at trial but the controversy has expired at the time of review, become moot.” Allred v. Webb, 641 So.2d 1218, 1220 (Miss.1994). Because Tyler is now emancipated, this issue is moot.

III. College Expenses

¶ 18. Billy also contends the chancellor erred in requiring him to pay one-half of Tyler’s college expenses.

¶ 19. “[A]n award of child support is a matter within the discretion of the chancellor and that determination will not be reversed unless the chancellor was manifestly wrong in his finding of fact or manifestly abused his discretion.” Fancher v. Pell 831 So.2d 1137, 1141(¶ 20) (Miss.2002) (citing Gillespie v. Gillespie, 594 So.2d 620, 622 (Miss.1992)). Further, “[t]he process of weighing evidence and arriving at an award of child support is essentially an exercise in fact-finding, which customarily significantly restrains [appellate] review.” Id.

¶ 20. In Mississippi, the duty to send a child to college is not absolute. Wallace v. Wallace, 965 So.2d 737, 745(¶ 27) (Miss.Ct.App.2007). Rather, it is dependent upon the child’s aptitude for college, the child’s behavior toward and relationship with the parent, and the parent’s ability “to pay for the education without affecting his customary lifestyle.” Id. (citing Saliba v. Saliba, 753 So.2d 1095, 1101(¶ 21) (Miss.2000); Lawrence v. Lawrence, 574 So.2d 1376, 1383 (Miss.1991)). “[O]ne or both parents may be ordered to pay part or all of a child’s college tuition and related expenses.” Wallace, 965 So.2d at 745(¶ 27) (citing Saliba, 753 So.2d at 1101(¶ 21)). The supreme court has also held that payments of a child’s educational expenses are seldom used “as offset for child support, ‘as they do not diminish the child’s need for food, clothing and shelter.’” Fancher, 831 So.2d at 1141(¶ 23) (quoting Varner v. Varner, 588 So.2d 428, 435 (Miss.1991)).

A. Aptitude for College

¶ 21. The record reflects that Tyler is presently enrolled in community college in his fourth semester and has attained good grades. The evidence before us also shows Billy had the ability to pay for his son’s college expenses without substantially affecting his customary lifestyle. In fact, Billy testified he would pay one-half of Tyler’s college expenses until he turned twenty-one years old. After that, his educational support would depend upon Tyler’s performance in school.

B. Behavior and Relationship with Parent

¶ 22. With regard to Tyler’s relationship with Billy, it appears that prior to the couple’s separation, Billy and his son had a good relationship. However, the chancellor noted the relationship began to deteriorate when Billy denied he was Tyler’s father after raising him since birth.

C.Parent’s Ability to Pay

¶ 23. Billy argues the chancellor did not specifically find he had the financial ability to pay Tyler’s college expenses. He also complains the chancellor did not apportion Tyler’s college expenses according to Billy’s and Nancy’s respective incomes. We note the chancellor found Billy’s adjusted gross income was $2,555 per month, but he also pointed out that Billy was engaged in heavy-equipment dirt work, which resulted in “much unreported, untaxed income.” In addition, the chancellor held that both Billy and Nancy would be financially secure considering the property division and child support since “[b]oth of the [parties were] gainfully employed, ha[d] their separate incomes and retirements, and [Billy] ... exhibited an outside earning capacity in heavy-equipment work.” Thus, we find the chancellor did not abuse his discretion in determining that Billy had the financial ability to pay for one-half of Tyler’s college expenses.

¶ 24. Billy’s argument that the chancellor must apportion college expenses between parents based on their respective incomes also lacks merit. Saliba, 753 So.2d at 1101(¶ 22). In Saliba, the supreme court considered and rejected a similar argument raised by a father who claimed the chancellor erred in equally apportioning responsibility for college expenses where the mother’s net worth exceeded the father’s. Id. The supreme court noted the chancellor “does not merely apply a mathematical proportionality formula” in apportioning college expenses. Id. at (¶ 22). Here, the chancellor found both parents had ample means to pay. Based on our review, the chancellor’s findings on this issue are supported by substantial evidence and are not clearly erroneous.

IV. Equitable Distribution of Marital Assets

¶ 25. Chancellors have the authority to order an equitable division of property accumulated through the joint efforts and contributions of the parties. Christopher v. Christopher, 766 So.2d 119, 121(¶ 7) (Miss.Ct.App.2000). In equitably dividing marital property, chancellors must consider the following guidelines, commonly known as the Ferguson factors:

(1) contribution to the accumulation of property, (2) dissipation of assets, (3) the market or emotional value of assets subject to distribution, (4) the value of assets not subject to distribution, (5) the tax and economic consequences of the distribution, (6) the extent to which property division may eliminate the need for alimony, (7) the financial security needs of the parties, and (8) any other factor that in equity should be considered.

Hults v. Hults, 11 So.3d 1273, 1281(¶ 36) (Miss.Ct.App.2009) (citing Ferguson v. Ferguson, 639 So.2d 921, 928-29 (Miss.1994)).

¶ 26. Billy acknowledges the chancellor used the correct legal standard outlined in Ferguson for the equitable distribution of marital property. However, he claims the chancellor’s judgment is unclear as to which assets were subject to equitable distribution. Billy also alleges the chancellor erred by valuing Billy’s retirement as of the date of trial and valuing Nancy’s retirement on the date of separation.

¶ 27. This Court has held that “when making an equitable distribution of marital property, [chancellors] are not required to divide the property equally.” Goellner v. Goellner 11 So.3d 1251, 1264(¶ 45) (Miss.Ct.App.2009) (quoting McLaurin v. McLaurin, 853 So.2d 1279, 1283(¶ 11) (Miss.Ct.App.2003)). And, in reviewing a chancellor’s judgment concerning property division, the appellate court does not conduct a Ferguson analysis anew. Instead, the judgement is reviewed to ensure the chancellor followed appropriate standards and did not abuse his or her discretion. Goellner, 11 So.3d at 1264(¶ 45) (citing Phillips v. Phillips, 904 So.2d 999, 1001(¶ 8) (Miss.2004)).

¶ 28. Here, the chancellor’s judgment consists of twenty-eight pages. Nineteen of those pages are committed to the chancellor’s determination of (1) what constituted marital property, (2) his valuation of the property, and (3) the manner of distribution of the property. The chancellor was faced with the daunting task of untangling assets and allegations which arose over the course of a thirty-year marriage, including a six-year period of separation. After a thorough review, we find the chancellor fully examined each of the Ferguson factors in reaching his determination. In addition, he was confronted with evidence that Billy concealed marital property, had friends and neighbors lie about their ownership of property, and ceased contributing to his retirement account upon his and Nancy’s separation.

¶29. While Billy complains the judgment did not clearly describe which assets were marital, the chancellor pointed out “all properties described herein are marital properties accumulated during their marriages and subject to equitable distribution, unless stated otherwise.” The chancellor specifically identified the items and value of the marital property, and then directed the disposition of the property. Therefore, we find the chancellor’s judgment clearly states the identity, value, and disposition of the marital property.

¶ 30. Billy next complains the chancellor erred in valuing his retirement account as of the date of trial, and Nancy’s retirement account as of the date of separation. Specifically, the chancellor valued Nancy’s retirement as of the date of separation as “part of [the c]ourt-determined equitable distribution, as opposed to the current-amount balance.” However, Billy fails to cite any authority to support his argument that the chancellor erred in valuing the retirement accounts at differing times; therefore, this issue is procedurally barred. See, e.g., Dampier v. State, 973 So.2d 221, 228-29(¶ 20) (Miss.2008) (citation omitted). Notwithstanding the procedural bar, we note the record reflects that the chancellor valued the retirement accounts after considering undisputed evidence that upon separation from Nancy, Billy discontinued contributions to his retirement account, while Nancy continued making contributions to her retirement account. Thus, we find the chancellor did not abuse his discretion in valuing the retirement accounts from different dates.

¶ 31. Further, Billy alleges the chancellor’s distribution of the property is not supported by substantial evidence because it is unclear what assets the chancellor considered in entering a monetary judgment of one-half of the total assets subject to equitable distribution. The chancellor entered $343,598.59 as the total marital assets in paragraphs 23 and 24 of his corrected judgment, and awarded one-half of this amount, $171,799.29, to each of the parties.

¶ 32. After reviewing the corrected judgment, we find the chancellor’s calculations were clearly based on the values assigned to all marital property set forth in the judgment. However, in comparing the original judgment with the corrected judgment, we note that it is apparent the chancellor did not accurately recalculate the total assets subject to equitable distribution upon entering his corrected judgment, which revised an error found in the valuation of the lumber in the original judgment. This miscalculation in the corrected judgment is obviously a clerical error, which the chancellor should be given an opportunity to correct. Using the corrected value of the lumber, the total value of assets subject to equitable distribution is $344,108.59; one-half of which is $172,054.29.

¶ 33. Though we find the chancellor did not commit reversible error in equitably dividing the property, as his calculations were properly based on all marital property, we must remand, the case to the chancellor for the limited purpose of correcting the sole clerical error present in his corrected judgment.

¶ 34. THE JUDGMENT OF THE PONTOTOC COUNTY CHANCERY COURT IS AFFIRMED, AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Since the trial, Tyler has become emancipated. See Miss.Code. Ann. § 93 — 11—65(8)(i) (Supp.2008).

      . The chancery court later entered a corrected judgment for divorce wherein he revised . typographical errors.

      . The parties acknowledge the court-ordered paternity tests established Billy was Tyler’s natural father.

      . We note that Sellers is not a final decision due to a pending motion for rehearing. See Gray v. Univ. of Miss. Sch. of Med., 996 So.2d 75, 79(¶ 11) (Miss.Ct.App.2008) (citation omitted).

      . We find the miscalculation in this case calls for the same course of action taken in Parker v. Mississippi Department of Human Services, 827 So.2d 18, 20(¶ 5) (Miss.Ct.App.2002). There, we remanded die case for the chancellor to correct a similar error in the chancellor's child-support order. Id.

      . In section VII, number 2(e) of the corrected judgment, the chancellor revised a typographical error in the valuation of lumber, but did not use the substituted value when calculating the total marital assets, resulting in a $510 deficit.


author: KING, C.J.,

text:
    Martha VIA, Appellant v. MISSISSIPPI FARM BUREAU FEDERATION, Rankin County Farm Bureau, Rural Insurance Agency, Inc., Southern Farm Bureau Life Insurance Company, Southern Farm Bureau Casualty Company, Mississippi Farm Bureau Casualty Insurance Company a/k/a Farm Bureau Casualty Insurance Company, Tommy Allen, Marcus Martin, and Dan Martin, Appellees. Martha Via, Appellant v. Mississippi Farm Bureau Federation, Rankin County Farm Bureau, Rural Insurance Agency, Inc., Southern Farm Bureau Life Insurance Company, Southern Farm Bureau Casualty Insurance Company, Mississippi Farm Bureau Casualty Insurance Company a/k/a Farm Bureau Casualty Insurance Company, Tommy Allen, Marcus Martin, and Dan Martin, Appellees.
    Nos. 2008-CA-00782-COA, 2008-CA-00783-COA.
    Court of Appeals of Mississippi.
    Nov. 10, 2009.
    Hinds County Circuit Court, Hon. Bobby Burt Delaughter, J.
    Mark Thomas McLeod, Mitchell Harry Tyner, Jackson, attorneys for appellant.
    Dale G. Russell, Ken R. Adcock, Ridge-land, Sam E. Scott, Ellen Patton Robb, Ridgeland, attorneys for appellees.
   KING, C.J.,

for the Court.

¶ 1. Martha Via was one of five plaintiffs, including Barbara Rigdon, who filed a joint action against Mississippi Farm Bureau Federation, Rankin County Farm Bureau, Rural Insurance Agency, Inc., Southern Farm Bureau Life Insurance Company, Southern Farm Bureau Casualty Insurance Company, Mississippi Farm Bureau Casualty Insurance Company, Tommy Allen, Marcus Martin, and Dan Martin (hereinafter collectively referred to as “the Ap-pellees”) in the Circuit Court of Claiborne County on August 30, 1999. The claims alleged breach of contract, tortious breach of contract, fraud, conspiracy, intentional misrepresentation, negligent misrepresentation, intentional infliction of emotional distress, and negligent infliction of emotional distress.

¶ 2. Our supreme court ordered a severance of the cases. Thereafter, Via re-filed her claims in the Circuit Court of Hinds County, as did Rigdon, and the Appellees filed a motion to dismiss the claims. The trial court found that Via was statutorily barred from bringing the action and dismissed the case. Aggrieved, Via appeals the trial court’s dismissal of her complaint.

¶ 3. On November 3, 2009, this Court issued its opinion in Barbara Rigdon v. Mississippi Farm Bureau Federation, 2008-CA-00777-COA, 22 So.3d 321, which dismissed that appeal for lack of jurisdiction. The material facts and controlling law in Rigdon and Via’s case are the same. Therefore, for the reasons set forth in Rigdon, this Court dismisses Via’s appeal for lack of jurisdiction.

¶ 4. THE APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. GRIFFIS AND MAXWELL, JJ., NOT PARTICIPATING.


author: ISHEE, J.,

text:
    Joshua Lowell ODOM, Appellant v. FEDEX GROUND PACKAGE SYSTEM, INC., Appellee.
    No. 2009-WC-00444-COA.
    Court of Appeals of Mississippi.
    Nov. 10, 2009.
    Leonard Brown Melvin III, Hattiesburg, attorney for appellant.
    William Bienville Skipper, attorney for appellee.
    Before LEE, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court.

¶ 1. The Mississippi Workers’ Compensation Commission (Commission) affirmed the administrative law judge’s denial of workers’ compensation benefits to Joshua Odom. Odom then appealed to the Circuit Court of Forrest County, which affirmed the Commission’s judgment. Aggrieved, Odom appeals and argues that it was in error to deny his claim for workers’ compensation benefits. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Odom was a student at Jones Community College and a part-time employee with FedEx Ground in Hattiesburg, Mississippi. He began working for FedEx in the summer of 2002. He generally worked weekdays from 5:00 p.m. until 9:00 p.m., for approximately fifteen to twenty hours per week. In December 2003, Odom experienced pain in his back while at work. Odom filed a petition to controvert on January 18, 2005. In it, he claimed that the injury occurred on December 14, 2003, and that his supervisor allowed him to go home early that night.

¶ 3. Odom claimed that, after the injury, he visited Dr. John Beamon, at the Family Care Clinic, complaining about back pain. The first of these visits occurred on December 11, 2003. Odom indicated that he may not have told Dr. Beamon that the injury occurred at work, and it was shown that Odom’s record from the visit to Dr. Beamon’s contained a notation of “rein-jured.” Odom returned to see Dr. Beam-on on December 16, 2003, at which time he was referred to Dr. Michael Molleston, with Wesley Medical Center.

¶ 4. On December 18, 2003, Odom went to the emergency room at Wesley. He indicated on the patient information form that the injury was not work related. His record from that visit reflected the following: chronic back pain that began six months prior, a recent turning injury at home, and prior chronic back pain. When Odom returned to Wesley on December 20, his record reflected the following: pri- or back injury/pain, a recent lifting/turning/bending injury at work, and that the back pain began twenty-two weeks prior. On January 7, 2004, Dr. Molleston diagnosed Odom with a ruptured disc and severe sciatica, and Dr. Molleston later performed surgery on Odom to correct the problem. Odom told Dr. Molleston that he had begun experiencing back pain approximately ten or eleven months ago and that he had been referred to a doctor at that time. However, he also told Dr. Molleston that he had hurt his back lifting a thirty-five pound sack of parcels at work.

¶ 5. At Dr. Molleston’s deposition, he testified that Odom’s symptoms were consistent with the lifting injury that Odom described, and Dr. Molleston thought that the injuries were work related. He did not believe that Odom could have worked at FedEx since 2002 with the ruptured disc. More likely, the injury had likely occurred between three weeks and three months before Dr. Molleston first saw Odom. Following Odom’s surgery, Dr. Molleston initially told Odom not to lift anything more than thirty pounds, but the doctor indicated that Odom could return to work with no restrictions after May 3, 2004. However, as of February 2006, Dr. Molleston had placed a forty to fifty pound lifting restriction on Odom.

¶ 6. Pattie Boone was the manager of the Hattiesburg FedEx office. She participated in two depositions. She said that there was never a work-related injury reported to her by Odom or his supervisor, Willie Thompson. Apparently, Thompson had told Boone that he allowed Odom to leave early on the night Odom allegedly injured his back because his back “felt funny.” Neither Thompson nor anyone else filed an accident report concerning the incident. According to Boone, it was FedEx’s policy to file an accident report whenever there was an accident, and the lack of such a report indicated that Odom never reported an accident. Also, Boone testified that Odom had suffered a skateboarding accident in the summer of 2003. She said that she had given Odom the name of a chiropractor that she recommended.

¶ 7. At the hearing on the matter, Odom admitted that he was unsure of the date of his injury. He agreed that it must not have occurred on December 14. He said that he visited Dr. Beamon the day after the injury, so, since Dr. Beamon’s records indicated a December 11 visit, the injury must have occurred on December 10. When Odom was shown his time sheet for FedEx, he was unable to explain why it reflected that he worked December 10, 11, and 12. Additionally, Odom testified that he went home early that night and never returned to work for FedEx. He said that, while lifting a sack of parcels, he felt a sharp pain in the left side of his back and in his leg. Between December 10, 2003, and his surgery on January 26, 2004, he said that he could do nothing but lie in bed all day. He could not explain why Dr. Beamon’s records did not reflect that his back pain was work related. As for the records at Wesley, Odom said that his mother filled out those forms for him. Odom admitted that he had experienced back pain prior to the alleged injury; however, the exact time when he began experiencing back problems was unclear. He had been referred to see a Dr. Patterson, but according to Dr. Molleston, Odom never visited Dr. Patterson because he had to quit work and lost his medical insurance. However, Odom maintained that he experienced back problems the entire time he worked for FedEx and that he was referred to Dr. Patterson while working for FedEx. Odom also admitted that he liked skateboarding, but he denied Boone’s statement that he had injured his back while skateboarding.

¶ 8. At the time of the hearing, Odom was working for the Ford dealership in Hattiesburg. He was working full-time delivering parts and making approximately $200 per week more than when he worked at FedEx. FedEx had not paid Odom any benefits, but Vocational Rehabilitation had provided some assistance to pay for his medical treatment.

¶ 9. The administrative law judge determined that Odom had not met his burden of proving that he had sustained a compen-sable work-related injury. The judge concluded that to find for Odom, he “would have to indulge in excessive speculation and conjecture because of the numerous contradictions and inconsistencies in [Odom’s] story....” Therefore, the judge denied Odom’s claim for workers’ compensation benefits. Odom appealed that ruling to the Commission, which affirmed the administrative law judge’s ruling. Odom then appealed to the circuit court, which affirmed the Commission’s decision. Following that judgment, Odom filed the present appeal.

STANDARD OF REVIEW

¶ 10. This Court applies a limited standard when reviewing a decision of the Commission. Ameristar Casino-Vicksburg v. Rawls, 2 So.3d 675, 679(¶ 16) (Miss.2008) (citation omitted). As the Commission is the ultimate fact-finder, we will only reverse its decision if it was not supported by substantial evidence, was arbitrary and capricious, or if it contained an error of law. Id. ‘When, as here, the Commission accepts the [administrative law judge’s] findings and conclusions, we review those findings and conclusions as those of the Commission.” Id. (citation omitted).

DISCUSSION

¶ 11. Odom asserts only one issue on appeal-that the Commission erred in finding that he did not prove by a preponderance of the evidence that he suffered a compensable work-related injury. Accordingly, Odom argues that it was error to deny his claim for workers’ compensation benefits.

¶ 12. In support of Odom’s argument that he presented substantial evidence to support his claim, he notes a number of allegedly erroneous findings made by the Commission. First, Odom argues that, although the actual date of the alleged injury was disputed, it was undisputed that he hurt his back one night while lifting boxes in the scope of his employment. He notes that Boone’s testimony corroborates his claim that he suffered an injury at work, and he argues that his inability to pinpoint the exact date of the injury is irrelevant. Second, Odom points to the testimony of Dr. Molleston as support for his claim. According to Dr. Molleston, there was evidence that Odom had prior back pain, but it was Dr. Molleston’s opinion that Odom suffered a recent acute rupture of a vertebrae, which was the actual injury. Lastly, Odom argues that the Commission should not have held it against Odom that FedEx did not follow its established procedure in filling out an accident report following his injury. Other than there having been no injury at all, Boone offered no explanation for the absence of an accident report. Odom notes that it was FedEx’s responsibility, and not his own, to fill out an accident report; therefore, he argues that its absence should not have been construed against him.

¶ 13. It is, of course, the rule that doubtful workers’ compensation cases should be resolved in favor of compensation. Reichhold Chem., Inc. v. Sprankle, 503 So.2d 799, 802 (Miss.1987). The Commission cited this standard in its ruling. The Commission further relied on the correct legal standard in stating that Odom had the burden of proving by a preponderance of the evidence that he suffered an accidental injury arising out of and in the course of his employment. Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 13 (Miss.1994) (citation omitted). Additionally, the Commission noted that this standard required Odom to prove his case “beyond speculation and conjecture.” Coleman v. Chattanooga Container Corp., 377 So.2d 606, 608 (Miss.1979) (affirming denial of workers’ compensation benefits to a claimant when the “physical facts, circumstances[,] and contradictions” were sufficient to rebut her testimony of an on-the-job injury) (citation omitted).

¶ 14. In the present case, the Commission pointed out numerous contradictions and inconsistencies in Odom’s account. Among those were the following: (1) Odom was unsure of the date of the injury; (2) Odom claimed to have gone home early and never returned to work after the injury, but his medical records showed that he visited Dr. Beamon on December 11, the day after the alleged injury, but his FedEx time sheets reflected that he worked his normal shifts on December 10, 11, and 12; (3) Dr. Beamon’s reports mention no work injury; (4) upon checking in at Wesley, Odom first indicated that his injury was not work related but had occurred at home, but on his second visit, he said that the injury had occurred at work; and (5) despite Odom’s assertion that he signed an accident report, there was no record of anyone ever filling out such a report.

¶ 15. According to Odom, his supervisor, Boone, admitted that Odom had suffered a back injury while at work. However, Boone’s testimony reveals that she was informed that Odom went home early simply because his back “felt funny.” Both Odom and Boone agreed that the night that Odom left work early was the last time he reported to work. Odom initially stated that the injury occurred on December 14, 2003, which he said was the day before he went to see Dr. Beamon. As it turned out, December 14 was a Sunday, and Dr. Beamon’s records reveal that Odom came for a visit on December 11. This would put the date of the alleged injury on December 10, the day before Odom visited Dr. Beamon. Contrary to Odom’s claim that the injury occurred on his last day of work, his timesheet shows that he worked full shifts on December 10 — the date of the injury — and the following two days. If, as Odom and Boone agree, Odom went home early on his last day of work, then he had already visited Dr. Beamon for a back injury the previous day. These facts indicate that Odom would have actually sustained the injury to his back prior to his last day of work, when he claimed to have suffered a work-related injury and went home early. There was no evidence in the record that revealed any work-related injury prior to Odom’s last day of work.

¶ 16. Not only was Odom’s account contradictory regarding the date of the alleged injury, but also his medical records were contradictory regarding whether the injury even occurred at work. “When a patient gives a history to a physician which is inconsistent with allegations in a workers’ compensation case, this is a significant factor in support of denial of a claim.” Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 336(¶ 16) (Miss.2003) (citing Hudson v. Keystone Seneca Wire Cloth Co., 482 So.2d 226, 227-28 (Miss.1986)). In the present case, Odom’s various medical records reflect different accounts as to whether the injury occurred at home or at work and also as to when the injury occurred.

¶ 17. Ultimately, the Commission is the judge of the credibility of the witnesses. Barber Seafood, Inc. v. Smith, 911 So.2d 454, 461(¶ 27) (Miss.2005) (citation omitted). It was the Commission’s finding in the present case that, in light of the inconsistencies and contradictions in the evidence and in Odom’s account, Odom did not prove by a preponderance of the evidence that he suffered a compensable work-related injury. We find that the Commission’s decision to deny benefits to Odom was not the product of an error of law and was not arbitrary and capricious. Further, Odom failed to prove that he suffered a compensable on-the-job injury.

¶ 18. Odom’s testimony was that he suffered an injury on his last day of work with FedEx — December 12. However, he visited Dr. Beamon the day before for a back injury, at which time he apparently did not inform the doctor that his injury was work related. If we are to ignore the uncontradicted testimony that Odom’s injury occurred on his last day of work and assume, as Odom also testified, that the injury occurred the day before he visited Dr. Beamon, we are then left with the fact that he worked full shifts on the date of the alleged injury and the following two days. Based on these facts, we agree with the Commission that Odom’s claim was based on too much speculation and conjecture. We find there was substantial evidence to support the Commission’s finding that Odom did not prove his claim by a preponderance of the evidence. Accordingly, this issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J„ NOT PARTICIPATING.

      . Dr. Patterson's first name is not given.


author: LEE, P.J.,

text:
    Ramonz PAYNE, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CA-01243-COA.
    Court of Appeals of Mississippi.
    Nov. 17, 2009.
    Wanda Turner-Lee Abioto, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., CARLTON and MAXWELL, JJ.
   LEE, P.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On February 1, 2001, in the Lauder-dale County Circuit Court, Ramonz Payne pleaded guilty to the sale of cocaine. Payne was sentenced to thirty years, with twenty-eight years suspended upon the completion of five years’ supervised probation. On August 23, 2004, Payne entered into an agreed order of revocation for violating the terms of his suspended sentence by possessing cocaine on October 3, 2003. Payne was sentenced to twenty-five years, with one year to serve in the custody of the Mississippi Department of Corrections, twenty-four years suspended, and five years’ post-release supervision.

¶ 2. On November 7, 2006, Payne was indicted for the offense of sale of cocaine within 1,500 feet of a church, which occurred on August 15, 2006. On June 7, 2007, the trial court entered an order of revocation finding that Payne had violated the conditions of his post-release supervision. Payne was ordered to serve the remaining term of his twenty-four-year sentence, with credit for time served.

¶ 3. On February 19, 2008, the trial court entered an order of nolle prosequi, dismissing the charge of sale of cocaine within 1,500 feet of a church. On May 2, 2008, Payne filed a motion for post-conviction relief. The trial court denied Payne’s motion for relief. Payne now appeals, asserting the following: (1) the standard of review is de novo; (2) the agreed revocation order was a contract with the State; (3) he was entitled to all statutory and constitutional rights afforded to one accused of a crime; (4) he is entitled to the protections under the agreed revocation order; (5) Mississippi judicial precedent regarding revocation procedures denies the application of constitutional protections; (6) newly discovered evidence would have resulted in a different outcome; (7) the trial court erred in allowing a lab report into evidence without the testimony of a lab technician; and (8) his probation should be reinstated. However, as Payne’s issues one and six are related and issues two, three, four, five, and eight are related, we will address his issues as follows: (1) the trial court did not properly review the evidence; (2) he was denied the protections afforded by the order of revocation; and (3) the trial court erred in allowing a lab report to be introduced without the testimony of a lab technician.

STANDARD OF REVIEW

¶ 4. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, where questions of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

DISCUSSION

I. REVIEW BY THE TRIAL COURT

¶ 5. Payne initially argues that he is entitled to de novo review of the judgment because the court failed to fully review the grounds for relief. We note that Payne fails to point to any specific question of law requiring de novo review. However, Payne's actual contention is that the trial court failed to consider the affidavits purporting to show newly discovered evidence. The trial court, citing Mississippi Code Annotated section 99-39-11 (Rev.2007), stated in its decision that it “made a full examination of the [pjetition, together with all the files, records, transcripts and correspondence .... ” We find no merit to this issue.

II. REVOCATION ORDER

¶ 6. Payne contends that he was denied the protections afforded him by the revocation order. Payne argues that a charge which does not result in a conviction cannot be used to support revocation. However, “our supreme court has stated that a conviction is not necessary to revoke probation. Probation may be revoked upon a showing that the defendant ‘more likely than not’ violated the terms of probation.” Younger v. State, 749 So.2d 219, 222(¶ 12) (Miss.Ct.App.1999) (internal citation omitted). We note that the trial court dismissed the sale of cocaine charge “to best serve justice and judicial economy.” However, there were sufficient facts and circumstances produced at the hearing for the trial court to determine that Payne more likely than not committed the offense of sale of cocaine within 1,500 feet of a church. Therefore, we find no merit to this argument.

III. TESTIMONY OF LAB TECHNICIAN

¶ 7. Payne argues that the trial court erred in allowing the State to introduce the lab report without the testimony of the lab technician. This issue was not raised before the trial court in Payne’s motion for post-conviction relief; thus, it is waived for purposes of our appellate review. Long v. State, 982 So.2d 1042, 1045(¶ 13) (Miss.Ct.App.2008). This issue is procedurally barred.

¶ 8. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. ROBERTS, J„ NOT PARTICIPATING.