author: WINDHORST, J.

text:
    SUCCESSION OF Josephine Catalano GENDRON
    NO. 17-CA-216
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR INTERVENOR/APPELLANT, KAREN GENDRON, MARIA GENDRON LAMBERT, TRACEY GENDRON BOYLE, RAYE CLAIRE GENDRON, AND JUDY GENDRON KLINE, Robert R. Faucheux, Jr.Christophe L. Faucheux, Lindsay M. Faucheux, La Place.
    COUNSEL FOR DEFENDANT/APPELLEE, RAYMOND GENDRON, JR., INDIVIDUALLY AND AS EXECUTOR OF THE SUCCESSION OF JOSEPHINE CATALANO GENDRON, Michael A. McNulty, Jr., Metairie.
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst
   WINDHORST, J.

This matter involves the succession of Josephine Catalano Gendron (hereinafter "Ms. Gendron" or "the deceased"), who was survived by six (6) children and died testate. For the reasons stated below, we reverse the trial court's ruling on the exceptions of vagueness, no cause of action and unauthorized use of ordinary proceedings and remand for further proceedings.

I. Background

Ms. Gendron was married to Raymond Roy Gendron, Sr. (hereinafter "Mr. Gendron, Sr."), who predeceased her and with whom she had six children, namely Karen Gendron, Maria G. Lambert, Tracey G. Boyle, Raye Claire Gendron, Judy G. Kline and Raymond Gendron, Jr. Ms. Gendron died on May 12, 2016 with a Last Will and Testament (the "Will") executed on July 30, 2015 and signed by a notary and two witnesses. The Will names Ms. Gendron's son, Raymond Gendron, Jr., as the Independent Executor (hereinafter the "Executor") of her succession and leaves the balance of her entire estate to him, except for a five percent (5%) commission to Jerry Bordelon on any rent houses sold.

On June 17, 2016, the Executor filed a Petition for Probate of a Notarial Testament and a Petition for Confirmation of Independent Executor in St. John the Baptist Parish, the Fortieth Judicial District Court, seeking execution of the Will and his confirmation as Independent Executor. That same day, Judge Sterling Snowdy signed an Order for Probate, ordering the execution of Ms. Gendron's Will and an Order, confirming Raymond Gendron, Jr. as the Independent Executor of the Succession of Ms. Gendron and directing the issuance of letters testamentary. According to the Sworn Detailed Descriptive List, Ms. Gendron's estate has a total gross value of $5,627,617.07.

On August 1, 2016, Ms. Gendron's other five children, Karen, Maria, Tracey, Raye and Judy (hereinafter "petitioners" or "appellants") filed a Notice of Lis Pendens and a Motion to File a Petition for Intervention in the record of the Succession of Josephine Catalano Gendron, notifying the Executor that petitioners had filed a Petition to Reopen the Succession, Recover Decedent's Funds and Annul Decedent's Probated Testament in the Succession of Mr. Gendron, Sr. Petitioners stated that the outcome of these proceedings may affect the division of property in In Re Succession of Josephine Catalano Gendron. By order dated August 29, 2016, the trial court granted the motion, allowing petitioners to file their Petition of Intervention in this succession and to serve their Petition on the Executor. Thus, on September 30, 2016, petitioners filed the Petition for Intervention into the Succession of Josephine Catalano Gendron (hereinafter the "Petition"), contesting the validity of Ms. Gendron's Will.

In the Petition, petitioners assert that the Will is invalid and null as a matter of law because (1) Ms. Gendron did not have the capacity to comprehend the nature and consequences of the Will due to her declining mental and physical health, including memory lapses and behavioral changes; (2) the Will was a product of undue influence by the Executor in violation of La. C.C. art. 1479 ; and (3) Ms. Gendron did not declare the Will as hers or sign the Will in the presence of two competent witnesses in violation of La. C.C. art. 1577. Petitioners seek a judgment declaring the Will null, recognition as Ms. Gendron's heirs, possession of their shares of Ms. Gendron's estate, and any other damages.

The Executor's Exceptions

On December 5, 2016, Ray Jr. filed Dilatory Exceptions of Unauthorized Use [of Ordinary Proceedings], Vagueness and Ambiguity, Nonconformity and Improper Cumulation of Actions, and a Peremptory Exception of No Cause of Action. In the Exception of Unauthorized Use, Ray Jr. asserts that an action to annul the Will must be done by summary proceeding and that petitioners should have filed a rule to show cause. In the Exception of Vagueness and Ambiguity, Ray Jr. asserts that the petition fails to allege sufficient facts to place the Executor on notice of "the facts upon which the Plaintiffs' claims are based." In the Exception of No Cause of Action, the Executor alleges that petitioners fail to allege sufficient facts to state causes of action based on testamentary incapacity, insufficiency of form or undue influence to annul Ms. Gendron's Will.

The Executor's exceptions were argued before the trial court on January 10, 2017. On January 23, 2017, the trial court granted the Executor's Exceptions of Unauthorized Use of Ordinary Proceedings, Vagueness and Ambiguity and No Cause of Action. The trial court allowed petitioners fifteen (15) days to amend their petition to cure the vagueness and ambiguity and plead specific facts as to their causes of action for testamentary incapacity and undue influence.

On February 6, 2017, petitioners filed a timely motion for appeal, which the trial court granted on February 7, 2017.

II. Issues Presented

(1) Did the trial court err in granting the Executor's exception of vagueness and ambiguity?

(2) Did the trial court err in granting the Executor's exception of no cause of action as to petitioners' claims that the Will is null and void based on vice of form under La. C.C. art. 1577, undue influence, and testamentary incapacity.

(3) Did the trial court err in granting the Executor's exception of unauthorized use of ordinary proceedings?

III. Law and Analysis

Jurisdictional Issue

This case involves a jurisdictional issue concerning the order certifying the judgment at issue as appealable. The relevant judgment does not state reasons why there is no just reason to delay appellate review as required by La. C.C.P. art. 1915. We therefore address whether the trial court abused its discretion in certifying these rulings as appealable using the analysis set forth in R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La. 3/2/05), 894 So.2d 1113. Under Messinger, an appellate court should evaluate whether the trial court properly certified a judgment as appealable by considering the relationship between the adjudicated and non-adjudicated claims; the possibility that the need for review may be mooted by further developments; the possibility that the trial court may reconsider the same issue; and various factors such as delay, economic and solvency considerations, shortening trial, frivolity of claims and expense. Id. We find there is no just reason to delay reviewing the relevant judgment at issue as resolution of the issues presented is necessary for this litigation to proceed. The resolution of these issues affects other issues in the case, and such should decrease the time and expense necessary to resolve this case. We therefore proceed with our review of the issues raised herein.

The Exception of Vagueness and Ambiguity

Appellants assert the trial court erred in granting the Executor's exception of vagueness and ambiguity on the claims of testamentary incapacity and undue influence. Appellee argues that the Petition contains conclusory allegations that are insufficient to place the Executor on notice. An appellate court reviews a judgment on an exception of vagueness under the manifest error standard of review because the district court's judgment is based on a factual determination. Wood v. Wood, 14-405 (La. App. 5 Cir. 11/25/14), 165 So.3d 181, 187.

La. C.C.P. art. 891 requires that a petition "contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation." One purpose of this requirement "is to place the defender on notice of the nature of the facts sought to be proved so as to enable him to identify the cause of action." Bustamente v. Vezina, 95-556 (La. App. 5 Cir. 01/30/96), 668 So.2d 1286, citing AAA Delivery, Inc. v. Airborne Freight, 94-346 (La. App. 5 Cir. 11/16/94), 646 So.2d 1113, writ denied, 94-3073 (La. 2/9/95), 649 So.2d 423. Exactitude and detail of pleading beyond placing defendants on notice of the claims asserted is not required. Id. A plaintiff's petition can survive an exception of vagueness if it "fairly informs the defendant of the general nature of the cause of action and alleges facts sufficient to allow the defendant to prepare a defense." Springer v. Nannie O'Neal Apts., 13-570 (La. App. 3 Cir. 11/13/2013), 125 So.3d 606.

On review of the petition, we find that appellants allege sufficient facts to inform the Executor that they are asserting testamentary incapacity and undue influence claims and to allow him to prepare a defense. Petitioners allege that when Ms. Gendron executed the Will, "her mental and physical health was in decline and she could not understand the consequences of her actions" and she "experienced memory lapses and behavioral changes in the time period immediately before, during, and after July 30, 2015." Petitioners also allege that "decedent was confused and conflicted about how her estate would be divided." We find these allegations are sufficient to assert a claim for testamentary incapacity as they provide reasons why the decedent may not have understood the consequences of her actions. In addition, the allegations inform the Executor that the decedent's capacity when the Will was executed is at issue. We therefore find the trial court erred in granting the Executor's exception of vagueness as to the testamentary incapacity claim.

As to the undue influence claim, Petitioners allege that the Executor isolated the decedent from her daughters, monitored the decedent's interactions with her daughters and exhibited domineering control over the decedent in the last year of her life. Petitioners also allege that the July 30, 2015 Will is the product of undue influence by the Executor and that the Executor impaired the volition of the decedent so as substitute his own volition. We find these allegations are sufficient to assert a claim for undue influence as they enumerate the alleged actions by which the Executor influenced the decedent to substitute his wishes for hers and specifically identify the Executor as the person who exerted undue influence on the decedent. Thus, we find the trial court erred in granting the Executor's exception of vagueness as to the undue influence claim.

In light of the foregoing, we reverse the trial court's judgment granting the Executor's exception of vagueness as to the testamentary capacity and undue influence claims.

The Exception of No Cause of Action

Appellants assert that the trial court erred in granting the Executor's exception of no cause of action on their claims that the Will is invalid based on vice of form, testamentary capacity and undue influence. Appellee asserts that appellants' allegations are conclusory. An appellate court reviews the judgment sustaining a peremptory exception of no cause of action de novo , because the exception raises a question of law and the trial court's decision is based only on the sufficiency of the petition. Guidry v. Hanover Ins. Co., 09-220 (La. App. 5 Cir. 11/10/09), 28 So.3d 426, 429, citing City of New Orleans v. Board of Commissioners, 93-0690 (La. 7/5/94), 640 So.2d 237, 241.

An exception of no cause of action questions whether the law extends a remedy to anyone under the factual allegations of the petition. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015 (La. 11/30/94), 646 So.2d 885, 888 ; Zurich American Ins. Co. v. Queen's Machinery Co., Ltd, 08-546 (La. App. 5 Cir. 1/27/09), 8 So.3d 91, 96. On an exception of no cause of action, no evidence may be introduced and the well-pleaded facts in the petition must be accepted as true. La. C.C.P. art. 931 ; Guidry, 28 So.3d at 428-429 ; City of New Orleans, 640 So.2d at 241 ; Zurich, 8 So.3d at 96. Any doubt should be resolved in favor of finding that the petition states a valid cause of action. Id.

The trial court granted the Executor's exception of no cause of action on the vice of form claim and dismissed that claim. In its reasons for judgment, the trial court stated that petitioners "have failed to state a cause of action which can be cured through amendment. This Court specifically finds that the testament meets the form requirements of La. C.C. art. 1577. There is no merit to intervenors' claim that the probated testament is invalid due to form or failure to meet the form requirements of La. C.C. art. 1577." The trial court's language in the reasons for judgment indicates that it addressed the merits of this claim instead of limiting its analysis to whether the petition states any valid cause of action. Thus, the trial court legally erred in its analysis and resolution of this issue.

With regard to their vice of form claim, petitioners allege that "the testator did not declare or signify to the two witnesses that the instrument was her testament" and "did not sign her name in the presence of two competent witnesses." These allegations are sufficient to state a cause of action for vice of form under La. C.C. art. 1577. We therefore find the trial court erred in granting the Executor's exception of no cause of action on this claim.

The trial court also found petitioners' allegations insufficient to support their claims of testamentary incapacity and undue influence, but granted them leave to amend their petition to more specifically state allegations for these causes of action. To have testamentary capacity, a person must be able "to comprehend generally the nature and consequences of the disposition that he is making." La. C.C. art. 1477. Considering this code article, to state a cause of action for testamentary incapacity, the petition should include allegations that the decedent was unable to understand the nature and consequences of his actions on the day he made the will. See, Succession of Salvadore Culotta, Jr., 04-1298 (La. App. 5 Cir. 03/01/1995), 900 So.2d 137. We find the following allegations from the petition sufficient to state a cause of action for testamentary incapacity, namely that (1) when Ms. Gendron executed the Will, "her mental and physical health was in decline and she could not understand the consequences of her actions"; (2) she "experienced memory lapses and behavioral changes in the time period immediately before, during, and after July 30, 2015"; and (3) "decedent was confused and conflicted about how her estate would be divided." Given that petitioners assert sufficient facts to state a cause of action for testamentary incapacity, we find the trial court erred in granting the exception of no cause of action on this claim.

To assert an undue influence claim, petitioners should assert facts indicating that a person exercised psychological domination over the decedent to the extent that the decedent could not help but do what the dominating person wanted. Cupples v. Pruitt, 32,786 (La. App. 2 Cir. 03/01/00), 754 So.2d 328. For a will to be declared null based on undue influence, there must be "proof that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor." La. C.C. art. 1479. As necessary, Petitioners allege that the July 30, 2015 document is the product of the Executor's volition. In addition, the Petition contains sufficient allegations that the Executor exercised psychological domination over the decedent as it alleges he isolated the decedent from her daughters, monitored the decedent's interactions with her daughters and exhibited domineering control over the decedent in the last year of her life. Given these allegations, we find the trial court erred in granting the exception of no cause of action on this claim.

For the reasons stated above, we reverse the trial court's judgment granting the Executor's exceptions of no cause of action on the vice of form, testamentary incapacity and undue influence claims.

Exception of Unauthorized Use [of Ordinary Proceedings]

The trial court also granted the Executor's exception of unauthorized use of ordinary proceedings, finding that the use of ordinary process to annul a testament is improper under La. C.C.P. art. 2931. Appellants assert that they have not used any improper process, but that they have complied with the Code of Civil Procedure's requirements by filing their petition for intervention in the succession proceedings and serving the Executor with a certified copy of the petition. Appellee asserts that appellants should have filed a rule to show cause. Based on the record and the law, we find appellants have not employed any improper process in this matter.

There are three different modes of procedure used in civil matters in Louisiana trial courts: ordinary, summary, and executory. La. C.C.P. art. 851. Ordinary proceedings are used "in the district courts in all cases, except as otherwise provided by law." Id."Summary proceedings are those which are conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all the formalities required in ordinary proceedings." La.C.C.P. art. 2591. La. C.C.P. art. 2592 states that summary proceedings may be used for, among other things, the disposition of "[a]n action to annul a probated testament under Article 2931." Under La. C.C.P. art. 2931, "[a] probated testament may be annulled only by a direct action brought in the succession proceeding against the legatees, the residuary heir, if any, and the executor, if he has not been discharged. The action shall be tried as a summary proceeding." La. C.C.P. art. 2971 provides that "the rules of pleading and service of process applicable in ordinary proceedings shall apply to succession proceedings. A certified copy of the petition, opposition, contradictory motion, or rule initiating a contradictory succession proceeding shall be served on the adverse party...."

The record indicates that on August 17, 2016, appellants filed a Motion to File Petition for Intervention in In Re: Succession of Josephine Catalano Gendron. By order dated August 29, 2016, the trial court issued an order allowing them to file their Petition of Intervention in this succession and to serve their Petition on the Executor. Pursuant to this order, on September 30, 2016, appellants filed their Petition in the succession proceedings and served all parties. On December 2, 2016, the Executor responded to the Petition by filing a number of Exceptions, including those discussed herein.

Nothing in the Petition indicates that appellants intended to employ ordinary proceedings and not summary proceedings in this case. As required by La. C.C.P. art. 2972 and pursuant to the court's August 29, 2016 order, appellants properly served the Executor with a copy of their petition. In addition, La. C.C.P. art. 2596 indicates that even in cases involving summary proceedings, the rules of ordinary proceedings may also be used. Specifically, this article provides that "[t]he rules governing ordinary proceedings are applicable to summary proceedings, except as otherwise provided by law." While the Executor asserts that appellants should have filed a rule to show cause, the allegations of the Petition suggest that discovery is necessary before any contradictory hearing could resolve the claims herein. Thus, we find there is nothing in the record to support a conclusion that appellants employed any improper process and reverse the trial court's ruling on appellee's exception of unauthorized use of ordinary proceedings.

IV. Conclusion

For the reasons discussed above, we reverse the trial court's January 23, 2017 Judgment granting the Executor's exceptions of vagueness, no cause of action and unauthorized use of ordinary proceedings and remand for further proceedings.

REVERSED AND REMANDED

      The relevant judgment in this matter is entitled Judgment on Exceptions, and it contains both written reasons for judgment and the judgment. La. C.C.P. art. 1918 provides that a judgment and written reasons for judgment should be separate. An appellate court reviews judgments, not reasons for judgments. Wooley v. Lucksinger, 09-571 (La. 04/01/11), 61 So.3d 507.

      The Executor titled this Exception "Exception of Unauthorized Use and Nonconformity" and the trial court, in its Judgement, titled it "Exception of Unauthorized of Ordinary Proceeding." Notably, this exception is not listed in La. C.C.P. art. 926, and there is no Louisiana law addressing such an exception. La. C.C.P. art. 926, however, states that the list of dilatory exceptions are not exclusive, and it appears that the Executor's exception is a confection of "unauthorized use of summary proceeding."

      We do not discuss executory process here as it is not at issue in this matter.


source: Caselaw Access Project

license: Public Domain

text:
    John RENNER v. RETZER RESOURCES, INC. and Velencia Hubbard, Individually and in Her Capacity as Manager of McDonald's
    NO. 2016-CA-01255-SCT
    Supreme Court of Mississippi.
    December 7, 2017 Rehearing Denied February 15, 2018 Certiorari Denied March 15, 2018
    ATTORNEYS FOR APPELLANT: DAVID NEIL McCARTY, ROBERT ALLEN SMITH, JR.
    ATTORNEY FOR APPELLEE: ROBERT F. STACY, JR.
    BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
   RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. The instant case arises from a trip-and-fall at a McDonald's restaurant in Winona, Mississippi. The circuit court granted summary judgment in favor of defendants. The plaintiff appeals, arguing that summary judgment was not proper because (1) he established each element of a premises-liability claim, and (2) the defendants lost or destroyed key video evidence, which he argues forecloses the grant of summary judgment. The plaintiff has established several triable issues of fact. Accordingly, summary judgment was inappropriate, and the Court reverses and remands.

FACTS AND PROCEDURAL HISTORY

¶ 2. According to the plaintiff, on August 13, 2012, seventy-six-year-old John Renner ("Renner") was traveling from Jackson, Mississippi, to his home in St. Louis, Missouri. He, his wife, and two other family members stopped at a McDonald's in Winona around 9:30 a.m. After he received his order, Renner set his food down at a table and walked to the condiment station. Renner picked up some condiments. Before returning to his table, he thought one of the McDonald's employees spoke to him. Renner turned and faced the counter before realizing the employee was speaking to another customer. As Renner turned back around to return to his table, his left foot struck a protruding leg of a highchair, causing him to fall and suffer injury to his face and left shoulder. After the fall, Renner heard one of the McDonald's employees ask another what the highchair was doing there, and to move it.

¶ 3. Two and a half years later, Renner filed suit against McDonald's; Retzer Resources, Inc., the owner and operator of the Winona McDonald's; and Velencia Hubbard, the manager of the Winona McDonald's. During discovery, the defendants claimed that video footage of the fall no longer existed.

¶ 4. The defendants, Hubbard and Retzer, moved for summary judgment, arguing that Renner could not demonstrate the existence of any genuine issue of material fact that: (1) the highchair was a dangerous condition; (2) any alleged danger was hidden; or (3) defendants had actual or constructive knowledge of the alleged dangerous condition. Attached to the defendants' motion and the plaintiff's response were the depositions of Greta Siegel, John Renner, Renner's wife Sherlyn, Velencia Hubbard, and Hugh Ballard, an Information Technology (IT) employee of Retzer Resources.

¶ 5. Greta Siegel was an eyewitness to the fall. Siegel, originally from Winona and a former Dean of Students at a college in California, was a frequent patron of the Winona McDonald's. Siegel visited McDonald's often in order to use its Wi-Fi connection. On the morning of the fall, Siegel was seated in a booth catty-corner to the location of the accident. Siegel's attention was directed that way when she heard a loud noise. She saw Renner fall and land on the floor. She also saw Renner's left foot tangled in the leg of a highchair. Siegel then heard a McDonald's employee immediately instruct other McDonald's employees to move the highchairs away from that area.

¶ 6. Siegel testified that she was not surprised that Renner had tripped at the condiment station, because the highchairs are obscured from view behind a "half wall," and because the legs of the highchairs protrude out farther than the tops of the highchairs. When questioned about the visibility of the highchairs, Siegel testified that, "[w]hat is hidden is the way that bottom juts out, because as you walk up to the chairs, obviously, they are there, but what you wouldn't expect is for a ... piece of it to be sticking out." When asked about the particular morning of Renner's fall and whether the highchairs were sticking out into the aisle, Siegel confirmed that they were and described the placement of the chairs as a "big hazard."

¶ 7. Siegel previously had seen other McDonald's customers bump into the highchairs at the same location where Renner fell. Siegel testified that she had seen approximately three customers stumble against the chairs and had seen other customers accidently kick the chairs. She described the customers' reactions to the chairs as being confused about what they had kicked, "because the top seems to be what you would hit first ... [b]ut with that bottom sticking out, it is something that people hit and they don't realize what they are kicking."

¶ 8. Siegel had complained several times about the location of the highchairs to a manager and to other McDonald's employees prior to this accident. Siegel testified that after complaining about the chairs, the employees would move them away from the corner, but still leave them on the same wall. However, Siegel also testified that, since the accident, the chairs remain in the same location.

¶ 9. Velencia Hubbard, the shift manager of McDonald's at the time of the accident, did not dispute any of Siegel's testimony. She opined that she thought the chairs were properly stored and did not believe they were out of place. Throughout her deposition testimony, Hubbard testified the she did not know or did not remember key facts. For example, Hubbard testified that she was not sure whether the legs of the highchairs protruded into the aisle at the time of the accident. Hubbard testified that she saw Renner fall and saw that his feet were caught in the highchair. She remembered speaking with the Renners, completing an incident report, and calling the insurance company, which was standard procedure after a slip and fall. Valencia testified that the placement of the chairs did not change after Renner's fall, and that they always remained in the same location. Valencia also testified that there was a video recording of Renner's fall, though she could not remember if she had ever seen it.

¶ 10. Sherlyn and Renner both provided affidavits relating events after the accident. Sherlyn and Renner testified that, two days after the fall, a risk management company for McDonald's called to check on Renner's condition. Sherlyn spoke with a woman from the company, who told Sherlyn that McDonald's had provided them with videotapes of the incident and that they would review the tapes to see what happened. Renner testified that about four to five weeks later, he called an "800 number" on a McDonald's incident form that he was provided. Renner spoke with a representative who told him that security tapes would have to be reviewed before they could speak about the accident with Renner. Another four to five weeks later, Renner called again. He was told the tapes had still not been reviewed. No video footage was produced per requests in discovery.

¶ 11. Hugh Ballard, the IT employee in charge of video surveillance at the Winona McDonald's, testified that a video camera faces the location where Renner fell. The video camera is motion-activated and does not record constantly. Ballard testified that the recordings are kept temporarily on a computer hard drive for approximately sixty-three to sixty-four days, depending on how quickly the hard drive fills up. The recordings are then recorded over. Ballard testified that he received a request from another Retzer Resources employee on October 17, 2013-sixty-five days after the accident-to preserve the video footage of Renner's fall. Ballard testified that he "imagined" that he tried to retrieve the footage, though he could not remember. Ballard testified that the video was gone. He had no way of knowing whether the footage was recorded over or whether it ever existed, although there was no indication that the camera was not operational on the day of Renner's fall.

¶ 12. Renner responded to the defendant's motion for summary judgment, arguing that the testimony of each of the five witnesses established that McDonald's was either directly negligent in causing his fall, or McDonald's had actual or constructive knowledge of the alleged dangerous condition. Further, Renner argued that, because of the unfavorable presumption that attaches to evidence spoliation, summary judgment would be inappropriate.

¶ 13. On August 2, 2016, the trial court issued its opinion and final judgment granting summary judgment in favor of the defendants, Hubbard and Retzer. The trial court found that Renner was an invitee of McDonald's, and therefore, McDonald's owed a duty to keep the premises reasonably safe and to warn only when there was hidden danger, not in plain and open view. The trial court found that "[t]he presence of a high chair in a restaurant like McDonald's is clearly a 'normal' and 'usual' condition that an invitee could 'expect to encounter.' Therefore, McDonald's cannot be held liable for Mr. Renner's injuries in this case." The trial court found that Renner had failed to produce any evidence that any McDonald's employee had placed the high chair in Renner's path or had any actual or constructive knowledge that the highchair posed a danger to Renner. The trial court's opinion made no reference to the missing video evidence. Renner timely appealed and raises two issues: (1) whether summary judgment was granted erroneously because Renner had proved each element of his premises-liability claim, and (2) whether the defendants' loss or destruction of key video evidence prohibited the grant of summary judgment.

DISCUSSION

¶ 14. "Summary judgment shall be rendered if the 'pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' " Miss. R. Civ. P. 56(c). "Summary judgment 'is appropriate when the non-moving party has failed to "make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." ' " Karpinsky v. American Nat'l Ins. Co. , 109 So.3d 84, 88 (Miss. 2013) (citing Buckel v. Chaney , 47 So.3d 148, 153 (Miss. 2010). We review the grant of summary judgment de novo and will view evidence "in the light most favorable to the party against whom the motion has been made." Id. (citing Pratt v. Gulfport-Biloxi Reg'l Airport Auth. , 97 So.3d 68, 71 (Miss. 2012) ).

I. Premises-Liability Claim

¶ 15. Renner argues that the trial court erred in granting summary judgment because he proved each element of his premises-liability claim. The parties do not dispute that Renner was an invitee of McDonald's. "A landowner owes an invitee the duty 'to keep the premises reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not in plain and open view." Mayfield v. The Hairbender , 903 So.2d 733, 737 (Miss. 2005) (citations omitted). To recover in a trip-and-fall case, a plaintiff must "(1) show that some negligent act of the defendant caused his injury; or (2) show that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff; or (3) show that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known of the dangerous condition." Anderson v. B.H. Acquisition, Inc. , 771 So.2d 914, 918 (Miss. 2000) (citing Downs v. Choo , 656 So.2d 84, 86 (Miss. 1995) ).

¶ 16. Renner established sufficient facts, which, if believed, would defeat a motion for summary judgment. It would be a question for the finder of fact whether the defendants had actual knowledge of the alleged dangerous condition and failed to warn Renner, or whether the defendants had constructive knowledge of the alleged dangerous condition (another issue for a jury). Renner offered the deposition testimony of Siegel, who testified that the legs of the highchairs protrude into the aisle and are obscured from view behind a "half wall." Siegel claimed personally to have witnessed at least three customers bump into or kick the highchairs. Siegel testified that she repeatedly had alerted several McDonald's employees about her concerns regarding the alleged hidden nature and dangerous condition of the highchairs. This testimony regarding McDonald's knowledge was undisputed by Valencia Hubbard or any other witness.

¶ 17. The defendants take issue with Siegel's testimony and affidavit, arguing that she offered inadmissible opinions. Mississippi Rule of Evidence 701 sets forth the rules regarding lay witness opinion: "If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702," which sets forth the rules for expert testimony. The Advisory Committee Note to the rule states that Rule 701favors the admission of lay opinion when the opinion is based on first-hand knowledge or observation, and when the opinion is helpful in resolving the issues. The defendants' argument is without merit. Siegel's testimony and affidavit are based wholly on her own observations, and they certainly are helpful in deciding the issues of Renner's premises-liability claim.

¶ 18. The defendants also argue that Siegel offered inadmissable expert testimony because she opined that the highchair's design constituted a hazard. This argument is without merit. Siegel simply testified that the she physically saw that the legs of the highchairs protruded into the aisle and that several customers had bumped into or kicked the highchairs. She stated that, in her opinion, the highchairs were a "big hazard" because they were obscured behind a "half wall," and the legs jutted out farther than the tops of the highchairs. Siegel did not offer a scientific or technical opinion as to the highchair's design, but rather testified about her observations of the highchairs based on the many hours she has spent patronizing the Winona McDonald's.

¶ 19. The trial court's opinion fails to account for the testimony of Siegel and concluded that, because highchairs normally are present in restaurants, an invitee could expect to encounter them. The trial judge's opinion erroneously supplanted the facts in the record with his own opinion regarding the location of the highchairs. This is a role for jurors. See Prescott v. Leaf River Forest Prods., Inc ., 740 So.2d 301, 309 (Miss. 1999) ("The trial court's function on a Rule 56 motion for summary judgment is not to resolve disputed factual issues, but rather to determine whether issues of fact exist to be tried.")

¶ 20. At the very least, genuine issues of material fact remain for trial. Siegel testified that she did not know of any person moving the highchairs at any time before the fall. Hubbard testified that she could not remember whether the highchairs had been moved. Further, Hubbard testified that Renner was walking from the counter with a tray in his hands, while the Renners and Siegel all testified that Renner did not have a tray, and that he was walking from the condiment station to the dining area. The number of highchairs stored behind the "half wall" also is in dispute, as Hubbard testified that there were only two, while Siegel testified that there were five or six.

¶ 21. "The moving party has the burden of demonstrating that [no] genuine issue of material fact[s] exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact." Duckworth v. Warren , 10 So.3d 433, 437 (Miss. 2009) (quoting One South, Inc. v. Hollowell , 963 So.2d 1156, 1160 (Miss. 2007) ) (citation omitted). Renner produced sufficient testimonial evidence establishing that genuine issues of material fact exist, and Renner should be given the benefit of every reasonable doubt . Ladnier v. Hester , 98 So.3d 1025, 1028 (Miss. 2012) (citation omitted) (emphasis added). In any case "[w]here doubt exists as to whether there is a genuine issue of material fact, the trial judge should err on the side of denying the motion and permitting a full trial on the merits." Prescott , 740 So.2d at 309. It was error for the trial court to grant summary judgment in favor of the defendants because triable issues of fact remain.

II. Spoliation of Video Evidence

¶ 22. Renner argues that the defendants' loss or destruction of video evidence forbids summary judgment. An examination of the record reveals that this issue has not been fully developed in discovery. The facts, as they are available now, indicate only that the IT employee claims no video of the fall exists. Whether the risk management company has or had the video is in dispute. If further discovery indicates that spoliation occurred, the trial court should approve a spoliation jury instruction, if appropriate. See Copeland v. City of Jackson , 548 So.2d 970, 973 (Miss. 1989) ("[J]ury instructions should only be granted where there is evidence presented to support the giving of those instructions.")

¶ 23. This Court has held that where there is proof of spoliation, the nonoffending party is entitled to a "spoliation inference." Dowdle Butane Gas Co., Inc. v. Moore , 831 So.2d 1124, 1127 (Miss. 2002) (citing Bott v. Wood , 56 Miss. 136 (1878) ). "The inference entitles the non-offending party to an instruction that the jury may infer that spoliated evidence is unfavorable to the offending party." Id. (citing DeLaughter v. Lawrence County Hosp. , 601 So.2d 818, 822 (Miss. 1992) ). In other words, the jury is not required to draw an adverse inference that the evidence would have been unfavorable, but the innocent party is entitled to an instruction permitting the jury to draw a negative inference from spoliated evidence. See Kronisch v. U.S. , 150 F.3d 112, 126 (2d Cir. 1998). To prove that spoliation occurred, the innocent litigant is not required to show fraudulent intent on the part of the spoliator. Thomas v. Isle of Capri Casino , 781 So.2d 125, 133 (Miss. 2001). Even where evidence is unavailable due to negligence, an inference arises that the evidence would have been unfavorable, and the jury should be so instructed. Id. (citation omitted). Accordingly, if the evidence reveals that the video was lost intentionally or negligently, Renner is entitled to a spoliation jury instruction.

CONCLUSION

¶ 24. The trial court erroneously granted summary judgment because triable issues of fact remain. The Court reverses the judgment of the Washington County Circuit Court and remands for proceedings consistent with this opinion.

¶ 25. REVERSED AND REMANDED .

WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.


text:
    Amy Clemons PLUMMER v. James Jeffrey PLUMMER
    2016-CT-00409-COA
    Supreme Court of Mississippi.
    Filed: October 27, 2017 Closed: February 1, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    MISSISSIPPI DEPARTMENT OF HUMAN SERVICES v. Ben PORTER
    2016-CT-00383-COA
    Supreme Court of Mississippi.
    Filed: November 13, 2017 Closed: February 15, 2018
    Motion Desc: Appellees Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Aaron LYONS v. STATE of Mississippi
    2015-CT-01004-COA
    Supreme Court of Mississippi.
    Filed: November 13, 2017 Closed: February 8, 2018
    Motion Desc: Petition For Writ Of Certiorari.
    Certiorari - Denied.


text:
    Wendell DUNCAN v. STATE of Mississippi
    2016-CT-00366-COA
    Supreme Court of Mississippi.
    Filed: October 31, 2017 Closed: February 1, 2018
    Motion Desc: Petition for a Writ of Cert.
    Certiorari - Denied.


text:
    William Ray PARKS v. STATE of Mississippi
    2015-CT-01462-COA
    Supreme Court of Mississippi.
    Filed: November 13, 2017 Closed: February 1, 2018
    Motion Desc: PETITIONER FOR WRIT OF CERTIORARI.
    Certiorari - Denied.


text:
    Connie HAWKINS v. HECK YEA QUARTER HORSES, LLC
    2016-CT-00215-SCT
    Supreme Court of Mississippi.
    Filed: November 16, 2017 Closed: February 8, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Granted.


text:
    Peter J. PATRICOLA v. IMPERIAL PALACE OF MISSISSIPPI, LLC
    2016-CT-01043-COA
    Supreme Court of Mississippi.
    Filed: November 20, 2017 Closed: February 1, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Janice Loden SULLIVAN v. James Wayne SULLIVAN
    2015-CT-01513-COA
    Supreme Court of Mississippi.
    Filed: November 20, 2017 Closed: February 1, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Edwina ROBBINS v. STATE of Mississippi
    2015-CT-01627-COA
    Supreme Court of Mississippi.
    Filed: December 1, 2017 Closed: February 1, 2018
    Motion Desc: Petition For Writ Of Certiorari.
    Certiorari - Denied.


text:
    James Curtis CLARK v. STATE of Mississippi
    2016-CT-01278-COA
    Supreme Court of Mississippi.
    Filed: December 12, 2017 Closed: February 15, 2018
    Motion Desc: Clark petition for writ of certiorari.
    Certiorari - Denied.


text:
    Akeem RASHEED v. STATE of Mississippi
    2016-CT-00630-COA
    Supreme Court of Mississippi.
    Filed: December 22, 2017 Closed: February 15, 2018
    Motion Desc: Petition For Writ Of Certiorari.
    Certiorari - Denied.


text:
    Demarco WOLFE v. STATE of Mississippi
    2016-CT-00401-COA
    Supreme Court of Mississippi.
    Filed: December 12, 2017 Closed: February 8, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Darius Cornelius FORD v. STATE of Mississippi
    2016-CT-01498-COA
    Supreme Court of Mississippi.
    Filed: December 13, 2017 Closed: February 1, 2018
    Motion Desc: Petition For Writ of Certiorari.
    Certiorari - Dismissed.


text:
    Kenneth Ray AINSWORTH v. STATE of Mississippi
    2016-CT-01019-COA
    Supreme Court of Mississippi.
    Filed: November 28, 2017 Closed: February 22, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Johnny Lewis WASHINGTON v. STATE of Mississippi
    2016-CT-00124-COA
    Supreme Court of Mississippi.
    Filed: November 28, 2017 Closed: February 15, 2018
    Motion Desc: Petition For Writ of Certiorari.
    Certiorari - Denied.


text:
    Ralph Edward LLOYD v. STATE of Mississippi
    2016-CT-01136-COA
    Supreme Court of Mississippi.
    Filed: December 12, 2017 Closed: February 8, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


author: CARLTON, J., FOR THE COURT:

text:
    Kenneth Ray AINSWORTH a/k/a Kenneth Ainsworth a/k/a Kenneth R. Ainsworth, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01019-COA
    Court of Appeals of Mississippi.
    July 25, 2017 Rehearing Denied November 14, 2017 Certiorari Denied February 22, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. On May 26, 2015, a grand jury indicted Kenneth Ray Ainsworth for possession of a controlled substance with intent to distribute in violation of Mississippi Code Annotated section 41-29-139(a)(1) (Rev. 2013). A jury convicted Ainsworth of the charge on May 4, 2016. Then, on May 11, 2016, the Harrison County Circuit Court, Second Judicial District, sentenced Ainsworth as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015), with an enhanced penalty under Mississippi Code Annotated section 41-29-147 (Rev. 2013). The trial court ordered Ainsworth to serve twenty years in the custody of the Mississippi Department of Corrections without the possibility of parole. On June 27, 2016, the trial court denied Ainsworth's motion for a new trial or an acquittal notwithstanding the verdict. Aggrieved by his conviction and sentence and the denial of his posttrial motion, Ainsworth timely appeals.

¶ 2. On appeal, Ainsworth raises the following issues: (1) whether the trial court erred in issuing a supplemental jury instruction; (2) whether the trial court erred in instructing the jury to continue deliberations in light of the jury's note indicating unanimous agreement as to a lesser-included charge; and (3) whether his attorney was ineffective for failing to object to the supplemental jury instruction.

¶ 3. Finding no error, we affirm Ainsworth's conviction and sentence.

FACTS

¶ 4. Due to the nature of the claims Ainsworth raises, the underlying facts of his indictment for possession of a controlled substance with intent to distribute are not at issue in this appeal. Instead, the relevant facts of Ainsworth's appeal relate to a supplemental jury instruction the trial court issued in response to a note from the jury during the jury's deliberations.

¶ 5. Following closing arguments in Ainsworth's trial, the trial court excused the jury to begin deliberations. Over two hours later, the trial court received a note from the jury that read as follows:

Kenneth Ray Ainsworth
Guilty of Possession of a Controlled Substance 2 [grams]-10 [grams] Cocaine 12 [Jurors] For
Guilty of Possession of a Controlled Substance with Intent to Distribute 2 [grams]-10 [grams] of Cocaine 11 [Jurors] For[,] 1 Against
There is no agreement on Not Guilty with Intent to Distribute.

¶ 6. The trial court stated on the record that it was unsure how to handle the jury's note and that it had advised the attorneys for both parties of the note's contents. The trial court summarized its perceived problem with the jury's note as follows:

[T]he [jurors are] not unanimous with regard to the charge of possession with intent[,] but ... they have gone on to deliberate as to the lesser[-]included charge.
And it's my understanding that the jury instruction as drafted[,] and my understanding generally of the law[,] is that [the jurors] must consider the actual charge, being possession with intent, and ... only if they find Mr. Ainsworth not guilty of that charge are they then to proceed to the lesser [-]included crime of possession.

Both parties' attorneys agreed with the court's summary.

¶ 7. The trial court proposed to give a Sharplin instruction but opined that the instruction might not sufficiently "address the issue that appears to be troubling the jury." The trial court acknowledged that the jury had not followed proper procedure in voting. After conferring with the parties' attorneys, who agreed to the court's proposed course of action and supplemental instruction, the trial court further instructed the jury as follows: "So [,]

first of all, I'll remind you that all of your instructions are to be considered as a whole. I'm going to give you two additional instructions. So [,] if you will pay attention to these two [in addition] to the ones you already have." First, the trial court delivered the Sharplin instruction. Next, the trial court delivered the following supplemental instruction, which was an agreed-upon modified version of a previously delivered instruction:

As instructed prior to beginning your deliberations, it is your duty to accept the law given to you by the [c]ourt, and if the facts and the law warrant a conviction of the crime of Possession of [a] Controlled Substance with Intent, then it is your duty to make such finding uninfluenced by your power to find a lesser offense. This provision is not designed to relieve you from the performance of an unpleasant duty. It is included to prevent a failure of justice if the evidence fails to prove the original charge but does justify a verdict for the lesser crime.
Therefore, if you find the Defendant, Kenneth Ray Ainsworth, not guilty of Possession of [a] Controlled Substance with Intent, then you shall proceed with your deliberations to decide whether the State has proved beyond a reasonable doubt all of the elements of the lesser crime of Possession of [a] Controlled Substance.

The trial court then excused the jury to continue its deliberations, and the jury returned over an hour later with a verdict that read: "We, the jury [,] find the Defendant, Kenneth Ray Ainsworth, guilty of Possession of [a] Controlled Substance with Intent [to Distribute]."

¶ 8. The trial court entered a final judgment and sentenced Ainsworth accordingly. Ainsworth then filed an unsuccessful motion for a new trial or an acquittal notwithstanding the verdict. Aggrieved by his conviction and sentence and the denial of his posttrial motion, Ainsworth appeals.

STANDARD OF REVIEW

¶ 9. "A trial court has authority to give supplemental instructions to a jury[,] and the decision to do so is reviewed under an abuse-of-discretion standard." Hughes v. State , 983 So.2d 270, 280 (¶ 41) (Miss. 2008) (citing Mickell v. State , 735 So.2d 1031, 1033 (¶ 7) (Miss. 1999) ). As the Mickell court stated:

The appropriate standard of review regarding supplemental jury instructions ... "is not whether the circuit judge ruled contrary to what one of us might have ruled, not whether he was 'right' or 'wrong' in our view, but whether he abused his discretion. And, unless the trial [judge] based his decision on an erroneous view of the law, we are not authorized to reverse for an abuse of discretion unless we find it was 'arbitrary and clearly erroneous.' "

Mickell , 735 So.2d at 1033 (¶ 7) (quoting Westbrook v. State , 658 So.2d 847, 851 (Miss. 1995) ).

¶ 10. However, because Ainsworth failed to raise contemporaneous objections at trial to the supplemental jury instructions, he "must rely on plain error to raise the issue[s] on appeal, because otherwise [they are] procedurally barred." Parker v. State , 30 So.3d 1222, 1227 (¶ 14) (Miss. 2010) (citing Walker v. State , 913 So.2d 198, 216 (¶ 45) (Miss. 2005) ). "Plain error exists where such error affects the defendant's substantive/fundamental rights, even though no objection was made at trial." Id. "Applying the plain-error rule, the [appellate court] must determine: (1) whether the trial court deviated from a legal rule; (2) whether the error is plain, clear, or obvious; and (3) whether the error prejudiced the outcome of the trial." Willie v. State , 204 So.3d 1268, 1279 (¶ 29) (Miss. 2016) (citing Foster v. State , 148 So.3d 1012, 1018 (¶ 20) (Miss. 2014) ). "Only if the error 'resulted in a manifest miscarriage of justice' will reversal occur." Id. (quoting Foster , 148 So.3d at 1018 (¶ 20) ).

DISCUSSION

I. Whether the trial court erred in issuing a supplemental jury instruction.

II. Whether the trial court erred in instructing the jury to continue deliberations in light of the jury's note indicating unanimous agreement as to a lesser-included charge.

¶ 11. In Ainsworth's first two assignments of error, he asserts that the trial court erred in issuing a supplemental instruction and in issuing the Sharplin instruction. However the record reflects that, during the jury's deliberations, the defense not only failed to raise a contemporaneous objection to the Sharplin charge issued by the trial court but also agreed to the supplemental instruction. The record further reflects that the trial court was within its discretion when it issued a Sharplin charge in accordance with Rule 3.10 of the Uniform Rules of Circuit and County Court Practice, and the supplemental instructions agreed upon by the defense were consistent with that charge. Therefore, this issue is procedurally barred since the defense failed to preserve it through a contemporaneous objection and failed to raise the issue in posttrial motions. See McCoy v. State , 878 So.2d 167, 174-75 (¶ 21) (Miss. Ct. App. 2004).

III. Whether Ainsworth's attorney was ineffective for failing to object to the supplemental jury instruction.

¶ 12. In his third assignment of error, Ainsworth asserts that his attorney provided ineffective assistance by agreeing to and failing to object to the supplemental instruction. Decisions that fall within the scope of trial strategy fail to give rise to an ineffective-assistance-of-counsel claim. Spicer v. State , 973 So.2d 184, 203 (¶ 69) (Miss. 2007). Thus, Ainsworth has failed to show by a preponderance of the evidence that his attorney's performance at trial was defective or that it constituted ineffective assistance of counsel. We therefore find this assignment of error lacks merit.

¶ 13. Based upon the foregoing, we affirm the judgment of the trial court.

¶ 14. AFFIRMED.

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

      See Sharplin v. State , 330 So.2d 591, 596 (Miss. 1976).

      The previously delivered instruction omitted "as instructed prior to beginning your deliberations" and contained at the conclusion of the instruction the elements of the crime of possession of a controlled substance.

      See Sharplin , 330 So.2d at 596 ; see also Edlin v. State , 523 So.2d 42, 44 (Miss. 1988) (discussing the issuance of a Sharplin instruction).

      See Thornton v. State , 841 So.2d 170, 176-78 (¶¶ 30-37) (Miss. Ct. App. 2003) (finding no abuse of discretion in the trial court's issuance of a supplemental instruction after the jury's deliberations had begun).

      See also Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (providing that the following criteria must be met by a preponderance of the evidence to establish ineffective assistance of counsel: (1) counsel's performance was defective; and (2) the defect was so prejudicial that it prevented the defendant from receiving a fair trial).


author: BARNES, J., FOR THE COURT:

text:
    Larry BARDNEY, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00822-COA
    Court of Appeals of Mississippi.
    September 12, 2017 Rehearing Denied February 13, 2018
    ATTORNEY FOR APPELLANT: LARRY BARDNEY (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. On September 24, 1994, Tommie Penn's neighbor heard a commotion outside. When she peered out, she saw Larry Bardney chase Penn into his yard, making a stabbing-type motion while standing over Penn's body. The neighbor then heard Patricia Young, Penn's girlfriend, scream and witnessed Bardney chase Young back into the house, where she was later discovered deceased. Penn managed to run to the neighbor's house after the altercation, where he fell onto her floor and died. A witness had seen Bardney with Young earlier that evening, and several witnesses stated Bardney had been wearing a shirt that was recovered at the crime scene. Laboratory testing found blood matching Penn's blood type on Bardney's underwear.

¶ 2. Bardney was indicted for the murders of Penn and Young, and he pleaded guilty to both counts of murder on June 19, 1995. At the plea hearing, the Humphreys County Circuit Court judge informed Bardney of the constitutional rights he was waiving by entering a guilty plea. Defense attorneys told the court that Bardney, who had no prior criminal record, had consistently maintained his innocence in prior meetings with them, but Bardney assured the circuit judge at the hearing that he was entering his guilty plea because he was guilty and for no other reason. The court sentenced him to serve two concurrent life sentences in the custody of the Mississippi Department of Corrections.

¶ 3. Bardney filed a motion for post-conviction relief (PCR) on January 8, 1996. The circuit court denied the motion, finding no evidence of coercion to enter a guilty plea, Bardney's guilty pleas "were knowingly and voluntarily" entered, and Bardney was advised by the court and his attorneys regarding the minimum and maximum sentences that could be imposed. The Mississippi Supreme Court affirmed the court's decision on November 6, 1997. See Bardney v. State , 703 So.2d 861 (Miss. 1997) (affirmed without published opinion).

¶ 4. On July 7, 2015, Bardney filed a second PCR motion, contending that his indictment was fatally defective. He also alleged ineffective assistance of counsel for counsel's failure to move for dismissal based on a violation of his right to a speedy trial. The circuit court denied the motion on the merits, finding Bardney had not provided sufficient evidence to establish his indictment was fatally defective or "to show that his counsel was ineffective."

¶ 5. On appeal, we find Bardney's PCR motion is procedurally barred, and we affirm the court's judgment.

STANDARD OF REVIEW

¶ 6. A circuit court's denial of a PCR motion will not be overturned unless the court's decision was "clearly erroneous." Parish v. State , 203 So.3d 718, 721 (¶ 6) (Miss. Ct. App. 2016) (citing Chapman v. State , 135 So.3d 184, 185 (¶ 6) (Miss. Ct. App. 2013) ). "When reviewing questions of law, this Court's standard of review is de novo." Id.

DISCUSSION

¶ 7. Bardney claims his indictment was fatally defective for failing to state it was "brought in the name and by the authority of the State of Mississippi," for failing to include the language "without authority of law," and for failing to state the victims were "human beings," which he contends is an essential element of murder. He also asserts several claims of ineffective assistance of counsel.

¶ 8. As the State notes, however, Bardney is filing a successive PCR motion twenty years after his guilty pleas were entered; therefore, his claims are both time-barred and barred as a successive writ. Mississippi Code Annotated section 99-39-5(2) (Rev. 2015) provides that PCR motions "shall be made ... within three (3) years after entry of the judgment of conviction" in cases involving guilty pleas. Additionally, Mississippi Code Annotated section 99-39-23(6) (Rev. 2015) states that an order denying a PCR motion is considered a final judgment and a bar to a second or successive motion.

¶ 9. Furthermore, Bardney has not demonstrated that his claims constitute an exception to these procedural bars. Under the statutory exceptions to the three-year limitations period and successive-writ bar, a PCR movant must show: (1) an intervening decision of the United States Supreme Court or the Mississippi Supreme Court adversely affecting the outcome of the movant's conviction or sentence; (2) new evidence, "not reasonably discoverable at the time of trial," which would have caused a different result in the conviction or sentence; (3) biological evidence, not previously tested, exists that would demonstrate "by reasonable probability" that the movant "would not have been convicted or would have received a lesser sentence"; or (4) that either "his sentence has expired or his probation, parole or conditional release has been unlawfully revoked." Miss. Code Ann. § 99-39-5(2)(a)-(b). Additionally, in Rowland v. State , 42 So.3d 503, 507 (¶ 12) (Miss. 2010), the Mississippi Supreme Court held that "errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act (UPCCRA) ]." Bardney's claim that his indictment was fatally defective does not fall within any of these exceptions to the UPCCRA procedural bars.

¶ 10. We also find Bardney has waived his claims of ineffective assistance of counsel. A defendant's guilty plea "waives claims of ineffective assistance of counsel except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea." Jones v. State , 215 So.3d 508, 513 (¶ 17) (Miss. Ct. App. 2017) (quoting Alford v. State , 185 So.3d 429, 432 (¶ 15) (Miss. Ct. App. 2016) ). Although Bardney asserts several claims of ineffective assistance of counsel on appeal, he brought only one in his PCR motion before the trial court-that counsel was ineffective for failing to file a motion to dismiss based on a violation of his right to a speedy trial. Therefore, we will only address this claim on review. "A defendant who fails to raise an issue in his motion for post-conviction relief before the trial court may not raise that issue for the first time on appeal." Marshall v. State , 136 So.3d 443, 445 (¶ 3) (Miss. Ct. App. 2013) (quoting Fluker v. State, 17 So.3d 181, 183 (¶ 5) (Miss. Ct. App. 2009) ). As this claim does not relate to the voluntariness of the entry of his guilty plea, we find Bardney is precluded from asserting this claim. Bardney pleaded guilty, and his plea petition stated that he was waiving his "right to a speedy and public trial by jury." "[W]here a defendant voluntarily pleads guilty to an offense, he waives all non-jurisdictional rights incident to trial, including the constitutional right to a speedy trial." Hill v. State , 60 So.3d 824, 827 (¶ 6) (Miss. Ct. App. 2011) (citing Anderson v. State, 577 So.2d 390, 391-92 (Miss. 1991) ). Further, "[i]n order to succeed on a claim that counsel breached the minimum level of performance in failing to assert a speedy trial issue, a petitioner has the burden of showing such an issue could have merit." Ellis v. State , 773 So.2d 412, 413 (¶ 5) (Miss. Ct. App. 2000). We find Bardney has failed to plead specific facts to show any deficiency.

¶ 11. Accordingly, Bardney's claims are procedurally barred, and we affirm the circuit court's denial of Bardney's PCR motion.

¶ 12. AFFIRMED.

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

      Nonetheless, Bardney's entry of a voluntary guilty plea waived this claim. See Kennedy v. State , 118 So.3d 684, 685 (¶ 6) (Miss. Ct. App. 2013) (A valid guilty plea operates as waiver of all non-jurisdictional defects contained in the indictment with two exceptions: the failure of the indictment to charge an essential element of a criminal offense and subject-matter jurisdiction.). Bardney's indictment properly charged him with "unlawfully" murdering "Patricia Young" and "Tommie O'Neal Penn" "feloniously" and with "malice aforethought." Compare Miss. Code Ann. § 97-3-19(1)(a) (Rev. 1994) ("The killing of a human being without the authority of law by any means or in any manner shall be murder ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being[.]"), with Turner v. State , 796 So.2d 998, 1003 (¶ 20) (Miss. 2001) (term "unlawfully" synonymous with phrase "without authority of law") and Windham v. State , 602 So.2d 798, 807 n.5 (Miss. 1992) (terms "malice aforethought" and "deliberate design" synonymous). Further, the indictment specified the victims by name and surname, carrying the "necessary ... implication" that the individuals named were "human being [s]." See Coffield v. State , 749 So.2d 215, 217 (¶ 7) (Miss. Ct. App. 1999). Thus, Bardney's claim of a fatally defective indictment is without merit, as well as waived.

      Notwithstanding waiver, we find no merit to his additional claims. Bardney argues counsel failed to inform him of the lesser-included charge of manslaughter (i.e., that he could have asserted what he terms a "heat-of-passion defense"). The underlying facts do not support manslaughter; he was seen by an eyewitness chasing down both victims, who were running away from him. Bardney contends the State was required "to make a statement as to what evidence it possessed" to support a guilty verdict. The record of the plea hearing shows that the State did so, outlining the witnesses' testimony and the evidence. Bardney heard the State's offer of proof and assured the court that he did not disagree with it. Additionally, Bardney claims counsel was ineffective for failing (1) to explain the essential elements of murder, (2) to advise him of potential sentencing, and (3) to inform him of the constitutional rights he was giving up by pleading guilty. The record again contradicts his claims. The plea-hearing transcript shows Bardney was advised of and understood his constitutional rights, the nature of the charge against him, the minimum and maximum sentences for the charge, and the consequences of his guilty plea.


text:
    Shanki KENNEDY a/k/a Sheniko Shondra Kennedy a/k/a Sheniko Kennedy, Appellant v. STATE of Mississippi Appellee
    NO. 2016-KA-00253-COA
    Court of Appeals of Mississippi.
    September 26, 2017 Rehearing Denied February 6, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMESPHILLIP BROADHEAD
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Shanki Kennedy was convicted by a Holmes County jury of aggravated assault. She was sentenced by the Holmes County Circuit Court to serve twenty years in the custody of the Mississippi Department of Corrections, with five years suspended, fifteen years to serve, and five years of postrelease supervision. On appeal, Kennedy disputes the weight and sufficiency of the evidence. Finding no error, we affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. A love triangle precipitated the criminal act at issue in this case. Shortly after Fabian Watts and Victoria Watts, the victim, were married in July 2014, Victoria learned that Fabian was having an affair with Kennedy. In September 2014, the marriage collapsed when Victoria filed domestic-violence charges against Fabian, claiming he had beaten her. Soon thereafter, Victoria left the marital home in Jackson, Mississippi, and moved back to her home in Lexington, Mississippi.

¶ 3. According to Victoria, at approximately 1 a.m. on September 17, 2014, she awoke in the bedroom of her Lexington home to her little dog's barking. She heard her front door close and saw someone peeking around the corner of her bedroom door. She then saw Kennedy approaching her bed with a four-way wrench or tire iron. Victoria knew Kennedy because Kennedy had been harassing Victoria in Jackson. Kennedy attacked Victoria with the tire iron, hitting her on the head and body. Victoria began kicking Kennedy, who then began stabbing Victoria in the legs with a knife. Victoria grabbed an open knife from a nearby table and began fighting back in self-defense, stabbing Kennedy on the arm and shoulder three times. Kennedy then retreated from the bedroom.

¶ 4. In the meantime, Victoria's son, Ronald Ransom, who lived in a shed in the back of the property, heard screaming. He ran out of his room to see Kennedy running from the house, and he chased her to the end of the driveway. Kennedy ran toward an awaiting vehicle down the street, leaving a trail of blood. Photographs of the blood trail were entered into evidence. As the vehicle slowly drove away, the driver honked the horn twice. Ransom identified the vehicle as belonging to Fabian. Ransom went back inside the house to find his mother screaming and covered in blood.

¶ 5. Deputy Sheriff Corey Shields of the Holmes County Sheriff's Department was the first officer on the scene. He noticed a great deal of blood on the sidewalk outside of Victoria's home. He spoke with Ransom, who stated that Victoria was attacked by Kennedy. Deputy Shields photographed the inside and outside of Victoria's house, and determined that a struggle had taken place in Victoria's bedroom and living room. He photographed a window screen that had been taken off a window in the back of the house and was on the ground.

He believed the perpetrator entered through the window.

¶ 6. Victoria was taken to the Lexington Hospital, accompanied by Ransom and Officer Shields, where injuries to Victoria's scalp and legs were treated. She received approximately seventeen staples, mostly to the fourteen-inch-long laceration to her scalp. Deputy Shields took photographs of Victoria's injuries and interviewed her. Victoria recounted to him that Kennedy had intended to kill her with the tire iron, which was never found. Also missing from her house were her Michael Kors purse and a fifty-five-inch television. The television was never found. In her initial statements to police, Victoria stated that she believed Fabian was in the house with Kennedy that night and took the purse and television; however, Fabian claimed to be at work.

¶ 7. Deputy Sheriff Joshua Macko of the Holmes County Sheriff's Department also responded to the scene that evening. He was dispatched to the Lexington Hospital to interview Victoria, who told him she had been asleep when Kennedy broke into her house. Victoria said she stabbed Kennedy in the arm and shoulder in self-defense. Based on that information, a dispatcher called surrounding hospitals searching for Kennedy. She was found at a hospital in Canton being treated for her stab wounds.

¶ 8. At the hospital in Canton, Officer Macko photographed Kennedy's wounds. He also noticed that she was trying to hide a Michael Kors purse under her leg. Officer Macko could see Victoria's driver's license inside the purse. Upon searching the purse, Officer Macko discovered Victoria's Social Security card, mobile telephone, and marriage license to Fabian. Further, nurses informed Officer Macko that Kennedy had tried to get rid of the purse by taking it outside to be picked up. Officer Macko also overheard Kennedy trying to get one of the nurses to make a telephone call for her to get rid of the purse.

¶ 9. Lieutenant Juanita Mitchell of the Holmes County Sheriff's Department also investigated the case. She took photographs of the scene and collected evidence, including a white glove from Victoria's bedroom, which Victoria said belonged to Kennedy. Additionally, a photograph was taken of a window with a broken lock. Officer Mitchell also photographed the stolen purse. She testified that inside of it were Victoria's credit card, driver's license, and marriage license.

¶ 10. Later on September 17, Kennedy was taken into custody, read her Miranda rights, and interviewed by investigators. Officer Mitchell was present during the interview and testified that Kennedy claimed she had gotten into a fight with Victoria at Victoria's home. In her statement, Kennedy claimed her "friend boy," Kendrick Ratliff, took her to Victoria's home. Kennedy was not invited, but she let herself into Victoria's house at 1 a.m., as the front door was cracked open, and she wanted to talk to Victoria. She admitted Fabian was her ex-boyfriend, and stated that he was at work at the federal correctional facility in Yazoo City that night. Kennedy stated that she and Victoria "had been into it" in the past, but it was a while ago; however, it did get "physical." She stated that Victoria "just attacked" her for no reason; so Kennedy "grabbed something that she had in her house" to hit her back. She stated that a "friend girl" named Moon Pie took her to the hospital in Canton after the attack. She denied taking Victoria's purse and flat-screen television.

¶ 11. Captain Sam Chambers of the Holmes County Sheriff's Department was the lead investigator in the case. He was present when Kennedy was interviewed, and testified that Kennedy admitted she was in Victoria's house the night of the stabbing, uninvited, wanting to talk to Victoria. His investigation showed Kennedy was clearly the attacker. Captain Chambers also obtained the Canton hospital security video where Kennedy entered the hospital with a purse. Kennedy did not mention to Captain Chambers an alternative story that she was attacked in Canton that evening.

¶ 12. Captain Chambers also interviewed Ransom, who said he saw Kennedy running out of his mother's house. Ransom was familiar with Kennedy and was "one-hundred percent sure" it was she. While Ransom did not see Kennedy carrying a purse or television out of his mother's house, Ransom had seen Kennedy go in and out of his mother's house more than once that night. Additionally, Ransom stated he had seen Kennedy at his mother's house with Fabian a few days earlier, harassing his mother-he claimed they slashed the tires of her vehicle and smashed its headlights.

¶ 13. Dr. Mark Smothers was the physician who treated Victoria at the hospital in Lexington. At trial he was admitted as an expert in the medical field. Dr. Smothers testified that Victoria suffered from lacerations to her scalp and both legs. He opined that Victoria's scalp injury could be considered life-threatening due to the potential for excessive bleeding and possible damage to the skull and brain. He testified that her scalp laceration was consistent with a blunt injury from a tire iron.

¶ 14. Fabian testified at trial for the defense. He maintained that Kennedy was just a close friend, and they were not having an affair. He claimed that a week before the attack, he had given Kennedy the Michael Kors purse because Kennedy had helped him clean his house; however, he was originally going to give it to Victoria for her birthday. The day before the attack, he and Kennedy had gone to the Madison County Circuit Clerk's office to inquire about getting his marriage to Victoria annulled. In preparation for the trip, Fabian stated he gave Victoria's Social Security card, driver's license, and marriage license to Kennedy, who placed the documents in the Michael Kors purse. However, Fabian was unable to get the marriage annulled.

¶ 15. Fabian testified that on the night of the attack he went home and slept until his night shift began at the federal prison. On his way to work, he dropped Kennedy off at the AutoZone store in Canton. Kennedy worked at a nearby pool hall, but she saw her friend, Ratliff, outside of the AutoZone and decided to visit. Fabian contends that Kennedy called him at work that night and said she had been "jumped" leaving work at the pool hall and was injured.

¶ 16. Ratliff testified that Fabian dropped Kennedy off at the AutoZone parking lot at around 11:15 p.m. on September 16. Kennedy got in his vehicle and visited for approximately thirty to forty-five minutes, after which she went to work at the pool hall down the street. Ratliff did not know she worked at the pool hall. He stated that Fabian and Kennedy had been dating since 2011. Later that evening, Ratliff and his brother drove by the pool hall and saw Kennedy outside with blood on her. Ratliff gave her his shirt and took her straight to the hospital in Canton. Ratliff's brother escorted Kennedy into the hospital and then departed, leaving Kennedy alone at the hospital. On cross-examination, Ratliff denied driving Kennedy to Victoria's house in Holmes County, as Kennedy had claimed in her statement to investigators. He contended that Kennedy lied to police about that.

¶ 17. Kennedy testified in her own defense. She stated that Fabian gave her the Michael Kors purse on September 4 for helping clean his house. She further stated that on that same day, they went to Victoria's home in Holmes County to confront her, but they did not damage Victoria's vehicle. Kennedy corroborated Fabian's testimony about giving her Victoria's personal documents when they went to get the marriage annulled.

¶ 18. Kennedy claimed that her statement to investigators was a lie; she was just telling the officers what they wanted to hear because she was scared. She contends that she was "jumped" by Victoria while walking down the street from the pool hall in Canton around 1 a.m. Kennedy claimed that Fabian had dropped her off at the AutoZone earlier, where she spoke with Ratliff and his brother before going to the pool hall. After the attack, she ran into Ratliff, who took her to the hospital, where she was informed of Victoria's assault and the burglary of her home in Holmes County. Kennedy testified that she never pressed charges against Victoria for the attack in Canton because she was arrested instead.

¶ 19. Ultimately, the jury found Kennedy guilty of one count of aggravated assault, and acquitted her on the burglary charge. After the denial of her motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial, Kennedy timely appealed.

ANALYSIS

¶ 20. Kennedy argues that the verdict was not supported by the weight and sufficiency of the evidence.

I. Weight of the Evidence

¶ 21. Kennedy claims that the trial court erred when it denied her motion for a new trial because the jury's verdict was not supported by the overwhelming weight of the evidence. She points out inconsistencies in the evidence and claims a lack of credibility of the witnesses. Thus, she claims the jury's verdict should be set aside, and the case remanded for a new trial.

¶ 22. "A motion for a new trial challenges the weight of the evidence. A reversal is warranted only if the lower court abused its discretion in denying [the] motion." Dilworth v. State , 909 So.2d 731, 737 (¶ 20) (Miss. 2005) (citations omitted). "Only in exceptional cases in which the evidence preponderates heavily against the verdict should the trial court invade the province of the jury and grant a new trial." Id. at (¶ 21) (internal quotation marks omitted). The verdict must be "so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Bush v. State , 895 So.2d 836, 844 (¶ 18) (Miss. 2005). The evidence will be "weighed in the light most favorable to the verdict." Id.

¶ 23. Here, the jury was presented with conflicting accounts of what happened the night of September 17-that of Kennedy, Fabian, and Ratliff versus that of Victoria and Ransom. The evidence against Kennedy was not, as she contends, "extremely weak," just contradictory to her own version of events, which the jury did not find credible.

¶ 24. Kennedy alleges that Victoria's version of the attack was manufactured out of jealousy and revenge. She contends the physical evidence did not support Victoria's story that she was attacked by Kennedy in her bed with a tire iron. Kennedy points to alleged inconsistencies in the evidence including: Victoria's scalp injury was not consistent with a blow from a tire iron; the tire iron was never found; the knife Victoria claimed Kennedy used to stab her was found in her purse and not in the house; Victoria's bed was made and did not show signs of a struggle; blood was not found on or near the bed; and Victoria's initial report to police was that Fabian was in her home during the attack.

¶ 25. Initially, Kennedy confessed to law enforcement that she broke into Victoria's home at 1 a.m., wanting to talk to her, but ended up attacking her. Even though there were inconsistencies in Victoria's testimony as to certain details, Victoria was undeniably injured by Kennedy. At trial, Kennedy became the main source of inconsistencies. She changed her story, stating her original story to investigators was a lie. Kennedy claimed Victoria stabbed her on the street in Canton. However, under this version, Victoria had to return to Holmes County, stage a crime scene in her bedroom and sidewalk, inform her son of the false story, notify police, and reiterate the false story to law enforcement, all in an impossible time frame.

¶ 26. It is always the province of the jury to determine the credibility of witness testimony. Further, "it is common for the jury to be called upon to resolve sharp and irreconcilable differences in the evidence presented for its consideration." Latiker v. State , 918 So.2d 68, 73 (¶ 12) (Miss. 2005). Moreover, "[i]t is the jury's job to balance the weight [of the evidence] and credibility of the witnesses." Id. The jury did not believe Kennedy's version of the attack, and even though Victoria's version contained some inconsistencies and contradictions, we cannot say the weight of the evidence, taken in the light most favorable to the verdict, did not support the verdict. Thus, the trial court did not abuse its discretion in denying Kennedy's motion for a new trial.

II. Sufficiency of the Evidence

¶ 27. Kennedy also argues that the trial court erred in not granting her motion for a directed verdict or, alternatively, her motion for a JNOV because there was insufficient evidence to support the aggravated-assault conviction.

¶ 28. Motions for a directed verdict and a JNOV challenge the sufficiency of the evidence. Bush , 895 So.2d at 843 (¶ 16). In reviewing the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Nolan v. State , 61 So.3d 887, 893 (¶ 24) (Miss. 2011) (quoting Bush , 895 So.2d at 843 (¶ 16) ). All credible evidence consistent with the defendant's guilt will be accepted as true, together with all favorable inferences that may be reasonably drawn from the evidence. Robinson v. State , 940 So.2d 235, 239-40 (¶ 13) (Miss. 2006) (citing McClain v. State , 625 So.2d 774, 778 (Miss. 1993) ). "[R]eversal can only occur when evidence of one or more of the elements of the charged offense is such that reasonable and fair minded jurors could only find the accused not guilty." Wilson v. State , 936 So.2d 357, 363 (¶ 16) (Miss. 2006).

¶ 29. A person is guilty of aggravated assault when he or she "attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm." Miss. Code Ann. § 97-3-7(2)(a)(ii) (Supp. 2016). On appeal, Kennedy argues that the State failed to prove the deadly weapon element of the offense, because neither the tire iron nor the knife used by Kennedy was recovered. We disagree.

¶ 30. Victoria told police and testified at trial that Kennedy entered her home without permission at 1 a.m. and began hitting her with a tire iron. Ransom corroborated these events, stating he heard screaming and saw Kennedy running from the house. Upon entering the house, he saw his mother injured and bleeding. Both Victoria and Ransom told Officer Shields that Kennedy had broken into their home and had beaten Victoria with a tire iron. Officer Mitchell was present during Kennedy's interview and testified that Kennedy claimed she had gotten into a fight with Victoria at Victoria's home. Captain Chambers also testified that Kennedy admitted breaking into Victoria's house, and grabbing something in the house during the fight to hit Victoria.

¶ 31. Additionally, Victoria's and Kennedy's injuries were reasonably consistent with Victoria's version of events. Dr. Smothers, Victoria's treating physician at the hospital, testified that Victoria received serious bodily injuries, and her scalp laceration was consistent with being hit with a blunt object, such as a tire iron. Victoria testified that the lacerations to her legs were sustained when Kennedy stabbed her with a knife. The knife Victoria said Kennedy used to stab her in the legs was recovered in the purse. Just because the tire iron was not found does not mean the deadly weapon element was not met. The nature of Victoria's wounds, which had to be closed with staples, indicates she was attacked with a weapon deadly enough to create serious injury to a vital portion of the body. The jury could reasonably believe the weapon used by Kennedy to cause the injury on Victoria's scalp was a tire iron.

¶ 32. Considering the evidence of aggravated assault in the light most favorable to the State, the deadly weapon element could be found beyond a reasonable doubt. The evidence presented at trial was sufficient to warrant the trial court's denial of Kennedy's motion for a directed verdict or JNOV.

¶ 33. The judgement of the circuit court is affirmed.

¶ 34. AFFIRMED.

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

      Under a motion filed with this Court, law students from the University of Mississippi School of Law Criminal Appeals Clinic were appointed as special counsel for Kennedy. Law students Adreain Reynolds and Will Pomeroy prepared Kennedy's brief under the supervision of Attorney-Professor Phillip W. Broadhead, director of the clinic.

      At trial, a knife and a photograph of a knife were entered into evidence. Victoria claims the photograph of a large knife on a table with several CDs is the knife she used to stab Kennedy. She described the other knife as a pocketknife, which Kennedy used to attack her. She testified that the pocketknife was found inside her stolen purse when it was returned to her, and she did not place it in there.

      Fabian was never charged with a crime.

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

      Having reviewed the photos of the victim's bedroom, we do not find the condition of the bedding contradicted Victoria's version of the event.

      Kennedy also argues that the elements of burglary of a dwelling were not proven, but since she was acquitted on that charge, we decline to address the issue.


author: GREENLEE, J., FOR THE COURT:

text:
    James Lee JOHNSON, III a/k/a James Johnson, III a/k/a James L. Johnson, III a/k/a James Johnson, Appellant v. STATE of Mississippi Appellee
    NO. 2016-KA-01406-COA
    Court of Appeals of Mississippi.
    November 28, 2017
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD
    DISTRICT ATTORNEY: BRENDA FAY MITCHELL
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. On January 25, 2016, a Quitman County grand jury indicted James Lee Johnson III for acting individually, or while aiding and abetting or acting in concert with Larry Gilliam Jr., to commit the first-degree murder of Curtis Mumford. Johnson was tried individually, and the jury found him guilty as charged.

¶ 2. On appeal, Johnson claims that his retained trial counsel was ineffective because he provided no opening statement, and failed to challenge the State's evidence. In support, Johnson argues trial counsel did not (1) request an expert to review the State's forensic evidence; (2) attempt to establish the voluntariness of Johnson's statements to police; or (3) offer jury instructions on any theory of defense. Finding insufficient evidence within the trial record to evaluate an ineffective-assistance-of-counsel claim, we affirm Johnson's conviction and sentence, and dismiss this claim without prejudice so that Johnson may pursue the claim in a properly filed motion for post-conviction relief.

BACKGROUND

¶ 3. On June 7, 2015, Johnson and Larry Gilliam went to Troy Holmes's house to ask whether Holmes had paid Curtis Mumford for cutting his grass. Holmes told them he paid Mumford $40. In response, Johnson said he was going over to Mumford's house to talk to him, and explained Mumford owed him some money. Holmes testified he had not seen Mumford since the day before he spoke with Johnson and Gilliam, and stated that the day after Johnson and Gilliam visited his house, he noticed Mumford's home was being investigated as a crime scene.

¶ 4. On Monday, June 8, 2015, Detective Darryl Linzy of the Quitman County Sheriff's Department went by Mumford's house after receiving a request for a check on Mumford's welfare. Detective Linzy knocked on the door, but no one answered. He noticed the door was unlocked, so he went inside. He found Mumford lying on the floor. After determining Mumford was dead, Detective Linzy contacted authorities. Detective Linzy then secured the scene with yellow tape, and went across the street to speak to Holmes. Johnson was identified as a person of interest. Law-enforcement agents from Quitman County, with the assistance of Mississippi Bureau of Investigation (MBI) agents, eventually located Johnson at his parents' home, and took him into custody.

¶ 5. When Johnson was picked up, his father consented to a search of the house, which produced a bicycle belonging to Johnson, and the shirt that Johnson had reportedly worn the day before.

¶ 6. Johnson waived his Miranda rights, and gave several different versions of the events surrounding Mumford's death. Detective Linzy, Agent Bryan Sullivant, and Lieutenant Charles Hale were present during the interview in which Johnson told officers details about how Mumford was killed. He gave several different versions as to what happened that day. Initially, Johnson denied being at Mumford's house. He said he did not see Mumford or go to his home that day, but he admitted that he knew Mumford.

¶ 7. Later, Johnson changed his story and said Mumford owed him $20 for his help in cutting his neighbor's grass, and said he learned from the neighbor Mumford had recently been paid. Johnson also said he went to Mumford's house to retrieve his money, but Mumford was not home, so he left. Johnson was adamant that he did not go back to Mumford's house, and that he never saw Mumford that day.

¶ 8. Eventually, Johnson changed his story again. He said that he and Gilliam did go back to Mumford's home. He said he talked to Mumford and asked about the $20 Mumford owed him; that Mumford said he would get the money later; and that they watched the end of a movie. Johnson said he left after the movie, and did not touch Mumford.

¶ 9. Finally, Johnson agreed to tell "[his] side of the story." Johnson repeated the third version of his account, but he added that Gilliam stabbed Mumford with hedge clippers. Johnson explained that when Mumford told him that he did not have the money he owed him, Johnson stood up and pushed Mumford. After Johnson threw the first punch, he and Mumford began to fight, and, at one point, Johnson choked Mumford. Johnson said that weapons were used, but denied that he used any. He said Gilliam went through the house and retrieved the weapons, which he then used against Mumford. Johnson said Mumford's blood might have gotten on his hands at some point.

¶ 10. The interview lasted approximately one hour, and it ended when Johnson said he wanted an attorney. However, the next day, Johnson requested to speak to Detective Linzy. Detective Linzy testified he did not make any promises or threats to induce Johnson's statements during the second interview.

¶ 11. During the second interview, Johnson repeated his final version of what happened, but added some details. Johnson explained when the fight between himself and Mumford broke out, Johnson struck Mumford, and straddled him on the ground while Gilliam struck Mumford with the hedge clippers. When they finally stopped beating Mumford, Johnson and Gilliam used water to clean the blood off them. They also grabbed some of Mumford's clothing and dried their hands off. Johnson initially told Detective Linzy that he hid the hedge clippers in some bushes, but later admitted he and Gilliam hid them in a container inside Mumford's closet and covered them with clothes. Johnson told Detective Linzy that he hit Mumford in the face and chest area, and said that Gilliam struck Mumford in the back of the head. He also told Detective Linzy that he and Gilliam were probably in the house for about five minutes after the assault. Johnson said he returned to his house at 1:30 a.m. and noticed blood on his face, which he washed off. Although Detective Linzy could not recall whether Johnson had said whether Mumford was dead by the time they left the house, he remembered Johnson stating, "we killed him. I ain't gonna lie."

¶ 12. At trial, the State called experts in crime-scene analysis, serology, DNA analysis, and forensic pathology. They discussed Mumford's injuries and the efforts taken to cover up the crime. A forensic pathologist testified that Mumford suffered thirteen stab wounds in varying depths to his chest, back, left arm, neck, and head. He explained that Mumford suffered a blow to his skull, which was likely caused by something with a flat edge, or a type of single-edged knife. The forensic pathologist stated that the hedge clippers would be consistent with Mumford's skull injury, but he was unable to tell whether the hedge clippers were consistent with Mumford's stab wounds. He concluded Mumford's cause of death was multiple sharp-force injuries, including stab wounds ; and his manner of death was homicide.

¶ 13. Photographs taken at Mumford's home revealed blood spattered throughout several rooms. Items submitted for testing included Johnson's fingernail clippings; Johnson's clothing and shoes recovered from the jail; Johnson's bike seat; and the hedge clippers and hammer recovered from Mumford's home. A serologist testified that the hedge clippers tested positive for blood. He also stated that one of Johnson's shoes, Johnson's bike seat, and the hammer tested "presumptive positive" for blood. A DNA analyst testified that Mumford's DNA was found on Johnson's shoe, Johnson's fingernails, and the hedge clippers.

¶ 14. After the State rested its case-in-chief, defense counsel moved for a directed verdict, and argued there was no evidence Johnson aided, assisted, or acted in concert with Gilliam to commit murder. The trial court denied the motion and found that the State had presented sufficient evidence for the case to go to the jury. The defense rested its case without calling any witnesses, and the State finally rested. After considering the evidence presented and the instructions given, the jury found Johnson guilty of first-degree murder. Johnson was sentenced to life in the custody of the Mississippi Department of Corrections. Following the denial of his post-trial motions, Johnson timely appealed.

DISCUSSION

Whether Johnson's trial counsel was ineffective.

¶ 15. Johnson claims his trial counsel was ineffective because he "called no witnesses, neglected to give an opening statement, filed no motion to suppress the voluntariness of an unrecorded statement to police, and requested no expert for independent forensic investigation." Johnson also claims the jury was "not instructed on any viable theory of defense," although he does not explain what other theories of defense his trial counsel should have presented.

¶ 16. While this Court may consider the merits of a claim for ineffective assistance of counsel raised for the first time on direct appeal, it is unusual to do so because "we are limited to the trial court record in our review of the claim and there is usually insufficient evidence within the record to evaluate the claim." Ragland v. State , 50 So.3d 1041, 1044 (¶ 8) (Miss. Ct. App. 2010). The appropriate conclusion is usually "to deny relief, preserving the defendant's right to argue the same issue through a petition for post-conviction relief." Aguilar v. State , 847 So.2d 871, 878 (¶ 17) (Miss. Ct. App. 2003) (citing Read v. State , 430 So.2d 832, 837 (Miss. 1983) ). We will reach the merits on an ineffective-assistance claim only in instances where "(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge." Wilcher v. State , 863 So.2d 776, 825 (¶ 171) (Miss. 2003). The State does not stipulate that the record is adequate to review this issue. And we do not find the record affirmatively shows ineffectiveness of constitutional dimensions. Therefore, we dismiss Johnson's ineffective-assistance-of-counsel claim without prejudice, so he may pursue the claim in a properly filed motion for post-conviction relief. See Miss. Code Ann. § 99-39-7 (Rev. 2015).

¶ 17. AFFIRMED.

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

      Holmes explained that Mumford lived across the street from him, and often did handiwork for him and cut his grass.

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

      Sullivant and Hale are both agents with the MBI.

      Johnson planned to give Gilliam $10 of the $20 Mumford allegedly owed him.

      Johnson had bruises and scratches on various parts of his body. Initially, he described them as old wounds, but later admitted they were from the fight with Mumford.

      The serologist explained that a presumptive test involves a phenolpthalein chemical test, which tests positive by changing color when an item has the characteristics/components of blood. The serologist chose to presumptively test Johnson's shoe, Johnson's bike seat, and the hammer because they contained only a small amount of blood, and the serologist wanted to avoid consuming the entire samples to instead preserve them for DNA analysis.