author: DAVID E. CHATELAIN, JUDGE

text:
    STATE of Louisiana v. Nathaniel MCCOY, Jr.
    16-948
    Court of Appeal of Louisiana, Third Circuit.
    May 10, 2017

      Paula C. Marx, Louisiana Appellate Project, P. 0. Box 80006, Lafayette, LA 70598-0006, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Nathaniel McCoy, Jr.
    Earl B. Taylor, 27th JDC District Attorney, Jennifer M. Ardoin, Assistant District Attorney, P. O. Drawer 1968, Opelousas, LA 70571, (337) 948-0551, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    Court composed of D. Kent Savoie, Van H. Kyzar, and David E. Chatelain, Judges.
   DAVID E. CHATELAIN, JUDGE

_JjThe defendant, Nathaniel McCoy, Jr., appeals his manslaughter conviction. For the following reasons, we affirm the defendant’s conviction and sentence.

PROCEDURAL HISTORY

On April 30, 2014, a St. Landry Parish grand jury returned a true bill, charging the defendant with the second degree murder of Robbie White (White), a violation of La.R.S. 14:30.1. The defendant was arraigned on June 26, 2014, where he entered a plea of not guilty. Jury selection occurred on May 3, 2016. Trial was continued until May 23, 2016. The trial took place over May 23-25, 2016. By a vote of ten to two, the jury found the defendant guilty of the lesser responsive verdict of manslaughter, a violation of La.R.S. 14:31.

The defendant timely appealed his conviction and asserts two assignments of error. First, the defendant asserts that the trial court erred in allowing the introduction of “other crimes” evidence that was not timely provided to him; his contention is twofold: it violated the trial court’s scheduling order and did not comply with the rules of discovery in criminal matters. Second, the defendant asserts that the State failed to prove that he killed White and challenges the sufficiency of the evidence to support a manslaughter conviction.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. After reviewing the record, we find one error patent.

The court minutes show that the trial court failed to delay sentencing for twenty-four hours after it denied the defendant’s “Motion for Judgment of Acquittal or in the Alternative Motion for New Trial.”

Louisiana Code of Criminal Procedure Article 873 provides:

| aIf a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

There was no express waiver of the delay in this case; however, any error is harmless because the defendant does not argue excessiveness of his sentence on appeal and does not claim he was prejudiced by the lack of the delay. State v. Frank, 15-893 (La.App. 3 Cir. 5/25/16), 192 So.3d 888; State v. Cortes, 11-794 (La.App. 3 Cir. 2/1/12), 84 So.3d 733.

SUFFICIENCY OF THE EVIDENCE

The defendant asserts the State failed to prove beyond a reasonable doubt that he was the person who killed White. Thus, the defendant contends the evidence was insufficient to support the responsive verdict of manslaughter.

“When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence.” State v. Hearold, 603 So.2d 731, 734 (La.1992). The rationale is that “[w]hen the entirety of the evidence ... is insufficient.to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot.” Id.

The analysis for insufficiency of the evidence claims is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La. 1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and |atherefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

As to the defendant’s assertions that the State failed to prove beyond a reasonable doubt that he killed White, the supreme court in State v. Hughes, 05-992, pp. 5-6 (La. 11/29/06), 943 So.2d 1047, 1051, held:

[W]hen the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Weary, 03-3067 (La.4/24/06), 931 So.2d 297; State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649. Positive identification by only one witness is sufficient to support a conviction. Weary, 03-3067 at p. 18, 931 So.2d at 311; Neal, 00-0674 at p. 11, 796 So.2d at 658; State v. Mussall, 523 So.2d 1305, 1311 (La. 1988). It is the factfinder who-weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. State v. Bright, 98-0398, p. 22 (La.4/11/00), 776 So.2d 1134, 1147.

Moreover, in discharging our review function, we consider “all of the evidence” before the actual fact-finder. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The United States Supreme Court has explained that the standard of review for sufficiency of evidence is highly deferential to the factfinder because it “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. “The criterion thus impinges upon ‘jury’ discretion only to the extent necessary to guarantee the fundamental protection of due process of law.” Id.

Similarly, “[a] reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review.” State v. Macon, 06-481, p. 8 (La. 6/1/07), 957 So.2d 1280, 1285. “It is not the [.Junction of an appellate court to assess credibility or reweigh the evidence.” Id. at 1286. The Due Process Clause of the "Fourteenth Amendment, the source of the Jackson standard, does not countenance, much less require, that we re-weigh testimony and witness credibility. And “[i]n criminal cases [a court of appeal’s] appellate jurisdiction extends only to questions of law.” La.Const. art. 5, § 10(B).

“Therefore, in discharging our review function for sufficiency of evidence, we cannot re-weigh or re-consider” reasonable inferences drawn from basic facts to ultimate facts. State v. Gilmore, 10-59, p. 7 (La.App. 4 Cir. 10/6/10), 50 So.3d 208, 213, writ denied, 10-2491 (La. 3/4/11), 58 So.3d 478. “We must confine ourselves to questions of law except to the extent, and only to the extent, that Jackson mandates otherwise.” Id.

The crime of manslaughter includes “[a] homicide which would be murder ... under Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La.R.S. 14:31(A)(1). Second degree murder is defined as “the killing of a human being .. [w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]” La.R.S. 14:30.1(A)(1). “Sudden passion” and “heat of blood” are not elements of the offense of manslaughter; they are only mitigating factors lessening the culpability of & defendant. State v. Lombard, 486 So.2d 106 (La.1986).

Against that jurisprudential backdrop, we will now examine the evidence presented at trial in this matter to determine whether the jury in this case could have found that the State proved beyond a reasonable doubt that the defendant was the one who killed White.

On January 28, 2014, White'was shot multiple times and killed. Although there were no eyewitnesses to the murder, the defendant was seen with the victim |fishortly before the murder, and the gun used in the murder was found just after the shooting in the defendant’s father’s house. What follows is the other evidence the jury heard at trial.

Cheryl Wells (Wells), White’s girlfriend, testified. She stated that sometime prior to White’s death she received a call on her cell phone from- the defendant claiming that White owed him $50. Wells testified that she told White about the call and gave him $50 to pay the defendant, but she does not know whether White ever paid him.

Wells also testified to hearing an argument between White and the defendant about two months before White’s death, but she did not know what the argument was about. However, on cross-examination, Wells admitted that during her interview in the early morning hours after White’s death she told the police that White had been threatened by Michael Taylor (Taylor) and that the defendant had not threatened White.

Next, Wells testified that on the day of the murder she had driven White around town so that he could cut hair. Sometime between approximately 4:30 p.m. and 6:00 p.m. on that day, Wells dropped White off near “Pop’s” house and then went home. She did not see White again before his death.

Sedera Andres (Andres) testified she was in a relationship with the defendant on January 28, 2014. She testified that on that day she was with the defendant and Taylor at 1725 Caddo Street (Caddo house), the defendant’s father’s house. Andres testified that she, the defendant, and Taylor walked to her sister’s, |fiAryonte Joseph (Joseph), apartment to eat dinner that day. Andres stated that the defendant left to walk to the store before she heard the gunshots. Although she could not exactly recall, Andres testified that she believes that Taylor left with the defendant at that time. Andres remembered calling the de-fehdant a few times prior to hearing the gunshots, and the defendant informed her that he was almost at the store. After hearing the gunshots, Andres called the defendant to check on him. The defendant informed her that he was okay and that he was on his way back. Nevertheless, the defendant never made it back to Joseph’s apartment.

Once the police “picked up” the defendant, Andres called the defendant’s father. Andres and her sister then walked to the defendant’s father’s house , where she saw .the defendant’s father waiting outside. After the defendant’s father gave the police permission to search the house, he gave them a key to enter the house. Andres heard the police officers searching in the bedroom and saw them exit with a black gun.

Joseph testified that the defendant, Andres, and Taylor had all come over to her apartment throughout the day. Joseph testified that Taylor left a little while before the defendant left to go to the store. Joseph stated that the defendant left her apartment fifteen to thirty minutes before she heard the gunshots.

Taylor. testified that on January , 28, 2014, he went to the Caddo house. Taylor testified that he went with the defendant and Andres to Joseph’s apartment. When asked if he had taken any drugs that day, Taylor stated that he took Xanax. After he ate at Joseph’s apartment, Taylor and the defendant went back to the Caddo house. Taylor testified that he fell asleep on the sofa and woke up to the defendant telling him the police were outside. He did not hear the gunshots. When asked about things he saw or did on January 28, 2014, Taylor denied seeing White, denied seeing any confrontation between the defendant and -White, denied going to 17Paul Lavine’s (Lavine) house, denied going to the store with the defendant,. denied shooting the gun at White, and denied being present when White was shot.

Elizabeth Seraille . (Seraille) testified that on January 28, 2014, she was at her sister’s apartment. Seraile testified that a little before 8:00 p.m. she went to Mr. Paul’s house, which is right across from her sister’s apartment. While at Mr. Paul’s house, Seraille testified that she saw the defendant, White, and'Mr. Paul. Seraille heard a conversation between the defendant and White while she was there. Ser-aille testified that the defendant said to White, “You wrong for what you did” to which White responded “Oh man, what you talking about?” Seraille then testified that White tried to offer the defendant a phone, which he refused. The defendant and White then left Mr. Paul’s house, followed by Seraille. She testified that she went to her sister’s apartment, and the defendant and White went off in a different direction. After getting back to her sister’s apartment, Seraille testified that she put her food in the microwave briefly to warm it up and that she heard the gunshots about a minute after getting back to her sister’s apartment.

Lavine testified that White had been at his house around 12:00 p.m. or 1:00 p.m. on January 28, 2014. Lavine testified that he did not see or hear the defendant on that day. Lavine stated that after White left his house he went to sleep. Lavine testified that he was lying down on the couch in his living room when he heard the gunshots. Lavine testified that he did not hear a conversation between White and the defendant right before White was shot. Lavine also did not recall Seraille coming to his house before the shots were fired; he testified that he remembered her coming over after he heard the gunshots.

Tanika Lemon (Tanika) testified that she was at her cousin’s, Latwounna Lemon (Latwounna), apartment on January 28, 2014. Tanika was leaving Latwounna’s apartment right before the gunshots were heard. Tanika was headed |sto the store in a “tanish [sic] gold” Toyota Corolla. Tanika testified that she did not see anyone outside when she walked to the car. While backing the car up to leave the parking lot, Tanika testified that she heard the gunshots. After being reminded, Tanika admitted that she did see “an individual with a big jacket, medium build, medium height,” but that she did not know who the person was, although she thought it was a man because of the person’s build. She further testified that it was dark, and she had to look over her shoulder, so she could not see very well. Tanika testified that she did not make it off of Caddo Street, because by the time she reached the end of the street, the police were already coming and had surrounded her car.

Latwounna testified next. She indicated that she did not initially realize that she heard gunshots ■ until the children in the apartment told her that there was someone in the backyard. Latwounna testified that she then went outside and realized it was White on the ground. Latwounna testified that she did not see the shooter. She also testified that a lot of people were calling her while she was outside with White. Latwounna testified that the defendant called her several times while she was outside, and stated that she did not think that she answered his phone calls.

Tanika’s son, Davion Lemon (Davion), testified at the trial. Davion stated that he was at Latwounna’s apartment at the time of the shooting. Davion ran to the backdoor to check on his mother when he heard the shots. He saw her pulling away and saw a man lying on the ground. Da-vion stated that he also saw who he believed to be a short man wearing a big black jacket with a hood. However, Davion admitted that he did not have his glasses on at the time,

InBraylon Lemon (Braylon), Latwounna’s son, was also at her apartment on the night of the shooting. Braylon testified that he also ran to the backdoor when he heard the shots fired. He saw a man lying on the ground with his hand in the air and another man walking off wearing a black jacket with a hood. At trial, Braylon testified that the man was of medium height, but was reminded of his statement to the police after the shooting that the man was a couple inches taller than 5’2".

Patrick Layssard (Layssard), a multiple felony offender who was incarcerated at the time of trial, testified that he knew White and the defendant. Approximately a week prior to White’s death, Layssard testified that he saw the defendant and White arguing. He heard the defendant say, “You better have my f***ing money unless I’m going to put this on you.” At which point, Layssard testified that the defendant reached behind his back and pulled out a black gun, which he did not point at White, and then the defendant said that he would “put this motherf***ing s*** on you—this right here on you the next time I see you if you don’t have my money.” Layssard stated that he was not offered anything in exchange for his statements or testimony in this case.

Sergeant Crystal LeBlanc of the Opel-ousas Police Department was the lead detective in this case. She testified that shortly after White was shot a be-on-the-lookout (BOLO) was issued for the defendant and “another black, male suspect” driving a “four door gray car[.]”

Sergeant LeBlanc was questioned about the various height descriptions of the person seen with White that night given to her during her investigation. Sergeant Le-Blanc’s report stated that the person seen with White was tall. When asked whether she thought Davion and Braylon’s description of the person as | in“short” was disposi-tive, Sergeant LeBlanc testified she did not consider the children’s description dis-positive for several reasons. First, Davion admitted he was not wearing his glasses, and when she considered that fact with her own knowledge of the “cross pattern” on the screen door of the apartment and her own experiences of trying to see things without her glasses, she felt there could be some discrepancies in Davion’s assessment of the person’s height. Second, Sergeant LeBlanc also considered the fact that “children have a tendency to talk with each other as far as what they may” have seen and since she did not know whether they had spoken to each other before she interviewed them she did not consider their testimony dispositive as to the person’s height. Sergeant LeBlanc testified that she did consider it dispositive when Tanika described the person as being of medium height. When asked how she would describe the defendant’s height, Sergeant LeBlanc testified that she would consider him tall, but admitted she could not account for other people’s subjective points of reference for their height descriptions.

Ronnie Hegger, a lieutenant over the lockdown unit át Pine Prairie Correctional Facility, testified that he came into contact with the defendant in the medical unit on February 16, 2015. Lieutenant Hegger stated that in response-to a direct order to turn around and be handcuffed, the defendant said “F*** you, I know where you stay and I’ll kill you like I killed that boy from Opelousas.” Lieutenant Hegger testified that there were other prisoners present when the defendant threatened him.

Kassie Suire (Suire) testified at trial that she saw the defendant in Carenero, Louisiana, at her hunt’s house on January 22, 2014, just six days before White’s murder. Suire testified that she saw the defendant with a black gun that he fired Ininside her aunt’s house. The Lafayette Parish Sheriffs Department responded to the scene. Detective Michael Fincher took the bullet and cartridge cases recovered from the house to the Louisiana State Police Crime Laboratory for analysis.

On January 28, 2014, several officers from the Opelousas Police Department responded to the scene. Lieutenant Rodney May testified at trial that he collected the cartridge cases found around White’s body; he also identified a big black jacket that was- seized from the Caddo house along with the rest of the defendant’s clothing. Sergeant LeBlanc found a black Glock and a magazine in the top of a closet in the defendant’s father’s house on Caddo. Lieutenant May collected the gun and magazine located at the Caddo house approximately an hour and a half after the murder; there were two live rounds in the gun when it was located. Sergeant Kerry Sam swabbed the collected evidence for DNA. Sergeant Jody White, the evidence custodian on January 28, 2014, took the evidence to the Louisiana State Police Crime Laboratory for analysis.

Patrick Lane (Lane), a Crime Lab Analyst with the Louisiana State Police Crime Laboratory, was accepted as an expert Forensic Science/Crime Lab Analyst with a specialty in firearm identification. Lane examined. the gun, bullets, and cartridge cases recovered in this case. Lane was able to determine that the gun recovered from the closet at the Caddo house was the one that fired the cartridges collected at the scene; he was unable to match the bullets because they “lack[ed] sufficient detail to identify.” Lane also conducted the forensic examination of the bullets and cartridges recovered in the shooting in Lafayette Parish, and he was able to match the cartridges recovered with the gun seized from the Caddo house, but he was again unable to match the bullets because they too “laek[ed] sufficient detail to identify.”

haPhillip 'Simmers (Simmers), á DNA analyst with the Louisiana State Police Crime Laboratory, was accepted as an expert in the field of Forensic Science with a specialty in DNA analysis. Simmers had a DNA profile from the defendant, White, and Taylor. On the swabs from the gun, Simmers found an “uninterpretable mixture of DNA from multiple individuals.” The swabs taken from the cartridge cases did not produce enough DNA to generate a profile suitable for comparison. The fingerprint on the gun produced an incomplete DNA profile, preventing Simmers from making any conclusion regarding the inclusion or exclusion of the defendant as a contributor; however, he was able to exclude White and Taylor as contributors to that profile.

After reviewing all the evidence presented at trial “in the light mo'st favorable” to the State, we find that the jury in this case could have found the essential elements of the crime of manslaughter proven beyond a reasonable doubt.

Hypothesis of Innocence

In this assignment of error, the defendant also asserts that the evidence used to convict him was circumstantial. He presents two alternative 'hypotheses of innocence. First, that Taylor was involved in the shooting. Second, that a “short black man in a bluish gray car or another unidentified man” shot White.

“When circumstantial evidence forms the basis of the conviction, such evidence must consist of proof, of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience.” State v. Spencer, 96-248, p. 15 (La. App. 3 Cir. 11/6/96), 683 So.2d 1326, 1334, writ denied, 96-2938 (La. 5/9/97), 693 So.2d 773. “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La.R.S. 15:438.

| isThe State argues that the jury obviously rejected these hypotheses of innocence. In State v. Jackson, 14-9, pp. 12-13 (La.App. 3 Cir. 6/18/14), 146 So.3d 631, 639, writ denied, 14-1544 (La. 2/27/15), 159 So.3d 1066 (fourth alteration in original), this court stated the following regarding a jury’s rejection of a defendant’s hypothesis of innocence:

With respect to a jury’s rejection of a hypothesis of innocence, our supreme court in [State v.] Calloway, [07-2306, p. 10 (La. 1/21/09), ]1 So.3d [417,] 422 (citations omitted), concluded:

[W]e have repeatedly cautioned that due process, rational fact finder test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), does not permit a reviewing court to substitute its own appreciation of the evidence for that of the fact finder or to second guess the credibility determinations of the fact finder necessary to render an.honest verdict. A reviewing court may intrude on the plenary discretion of the fact finder “only to the extent necessary to guarantee the fundamental protection- of due process of law.” Thus, as Judge Pettigrew emphasized, when a jury reasonably and rationally rejects the exculpatory hypothesis of innocence offered by a defendant’s own testimony, an appellate court’s task in reviewing the sufficiency of the evidence under the Due Process Clause is at an end unless an alternative hypothesis “is sufficiently reasonable that a rational juror could not ‘have found proof of guilt beyond a reasonable doubt.’ ” <
The' jury’s decision to reject Defendant’s hypothesis regarding the commission of the crime was based upon its rational credibility and evidentiary determinations. Accordingly, the jury’s verdict should not be overturned.

The jury in this case apparently chose" to find credible Taylor’s testimony that he was sleeping when the shots were fired and that he had not seen White that day. We will not overturn the jury’s determination on this issue.

It is likewise apparent the jury did not find credible the defendant’s hypothesis of innocence regarding the person in the “bluish” car. The jury heard testimony from Andres that either the day before or the day of the shooting, she and the defendant had gotten a ride from Eunice to Opelousas from someone she |i4did not know or remember. She admitted that she had no reason to believe her statements made to investigators after the death of White that she rode with a “short” “light skinned” man with a “miniature fro” who drove a “bluish'colored car[]” were incorrect. Tanika testified that she was driving a “tanish [sic] gold” colored car on the night of January 28, 2014, when she left Latwounna’s apartment right before the shooting. Sergeant LeBlanc testified it was her' conclusion that the car described in the BOLO was likely the car driven by Tanika that night, but admitted there was a possibility the car from the BOLO was still out there.

We find that the jury’s rejection of the defendant’s hypotheses of innocence is based upon its rational credibility and evi-dentiary determinations. Therefore, we find no merit in this assignment of error.

OTHER CRIMES EVIDENCE

The defendant next argues that the trial court erred when it reversed its finding that the State untimely provided the other crimes evidence in this case. Thé other crimes evidence relates to the discovery that the gun used to shoot White was the same gun the defendant fired in Suire’s aunt’s house six days before White’s murder. The defendant argues that the State’s untimely notice prejudiced the defendant.

The State argues that the defendant is only challenging the timeliness of the notice of its intent to offer the other crimes evidence and not the admissibility of that evidence. The State contends that the defendant merely asserts that the other crimes evidence was prejudicial but does not illustrate how he was prejudiced. Alternatively, the State argues that even if the evidence was untimely, the trial court’s admission of the evidence is harmless error as there was “ample evidence” presented at trial to convict the defendant which extended beyond his firing of the gun that was used to shoot White six days before White’s death.

|! ¡¿Louisiana Code of Evidence Article 404(B) requires that “the prosecution in a criminal case shall provide reasonable notice in advance of trial,” when it intends to offer evidence of other crimes.

From our review of the record in this case, it appears that the defendant and the State were both provided with the Louisiana State Police Crime Laboratory’s firearm’s analysis for the St. Landry Parish evidence completed on February 6, 2014, which linked the gun used to shoot White with the gun the defendant fired on January 22, 2014, in Lafayette Parish. The State argues that it was not aware of the connection and filed its 404(B) motion as soon as it learned of it. However, the State learned of the connection on April 7, 2016, six days after the trial court’s April 1, 2016 hearing deadline for 404(B) motions. On April 1, 2016, the trial court set a Prieur hearing for April 8, 2016. It was at this Prieur hearing that the trial court ruled that the State did not provide reasonable notice for the other crimes evidence related to the gun. On April 27, 2016, after the hearing was continued from April 13, 2016, the trial court reversed its previous ruling and found that any problems with reasonable notice had now been cured because the “defendant has now been given time to prepare” and ruled that the other crimes evidence was admissible.

The supreme court has held that a “district court’s ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion.” State v. Taylor, 16-1124, 16-1183, p. 18 (La. 12/1/16), 217 So.3d 283, 2016 WL 7030750. Furthermore, the supreme court in State v. Blank, 04-204, p. 40 (La. 4/11/07), 955 So.2d 90, 123-24, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007) (footnote omitted), stated the following regarding the effect of late notice on other crimes evidence:

11fi[E]ven assuming that the state’s notice of its intent to introduce the other crimes evidence was not filed in a timely manner, not every violation of pre-trial procedures, including Prieur violations, requires reversal. Before a defendant can complain of such a violation, he must show prejudice. State v. Sanders, 93-0001, p. 14 (La.11/30/94), 648 So.2d 1272, 1284 (citing State v. Hooks, 421 So.2d 880 (La.1982)); State v. Strickland, 398 So.2d 1062 (La.1981). Prieur speaks of the “substantial risk of grave prejudice” to a defendant arising out of inadmissible or surprise admission of other crimes evidence, but does not presume that prejudice. [State v.] Prieur, [277 So.2d 126], 128 [ (La.1978) ].

Considering all of this, we find that the trial court’s decision to admit the other crimes evidence was not an abuse of discretion. The defendant failed to allege with any specificity how he was prejudiced by this late notice or what about his trial strategy was changed because of the admission of the other crimes evidence.

Finally, out of an abundance of caution, we note State v. Garcia, 09-1578, p. 55 (La. 11/16/12), 108 So.3d 1, 39, cert. denied, — U.S. -, 133 S.Ct. 2863, 186 L.Ed.2d 926 (2013), where the supreme court stated the following with respect to the applicability of harmless error to the erroneous admission of other crimes evidence:

Finally, the erroneous admission of other crimes evidence has long been held subject to harmless error review. La. Code Crim. Proc. art. 921; State v. Johnson, 94-1379, pp. 14-15 (La.11/27/95), 664 So.2d 94, 100-01 (errors leading to improper admission of evidence subject to harmless-error analysis; error harmless if verdict “surely unattributable” to error)(quoting Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993)).

We find that even if the trial court erroneously admitted the other crimes evidence, considering the other evidence admitted at trial the error was harmless. For these reasons, this assignment of error lacks merit.

DECISION

For the foregoing reasons, we affirm Nathaniel McCoy, Jr.’s conviction and sentence.

JjjAFFIRMED,

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . Wells did not know Taylor’s name; she knew him by "Maul” and. knew mat “Maul” had been arrested with the defendant on the night of White’s death. Taylor was the only person arrested with the defendant. Further, Taylor indicated during his testimony that his nickname is “Maul.”

      . Wells does not know "Pop’s” real name, and no location is given for "Pop’s” house except that it was near White’s sister’s house which was "around the corner off of 182[.]”

      . Davion testified that he considered “short” to be around 5’6" or a little taller.

      . The report says "talk male subject,” but Sergeant LeBlanc testified that she meant "tall male subject.”

      . The defendant asserts that he is • 6'3" in height.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Wayne COOPER and Exlena Horton, individually and as Co-Administrators of the Estate of Mary Horton Cooper, Deceased, and on Behalf of All Wrongful Death Beneficiaries of Mary Horton Cooper, Victor Longino, Jr., Kizzy Horton, Lamar Horton, and Anthony Horton, Appellants v. SEA WEST MECHANICAL, INC., Appellee
    NO. 2015-CA-01710-COA
    Court of Appeals of Mississippi.
    05/09/2017

      LAWRENCE COUNTY CIRCUIT COURT, PRENTISS GREENE- HARRELL, J.
    ATTORNEY FOR APPELLANTS: EDWARD D. MARKLE
    ATTORNEYS FOR APPELLEE: L. CLARK HICKS JR., R. LANE DOS-SETT
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. In this appeal concerning a wrongful death, we must determine whether the trial court erred in granting Sea West Mechanical Inc.’s motion for summary judgment. Finding no error, we affirm.

PROCEDURAL HISTORY

¶2. On August 7, 2014, Mary Horton Cooper stopped her vehicle on Highway 84 in Lawrence County, Mississippi. She was standing at the rear of her vehicle when she was struck by Zachary Savoie. Cooper died at the scene. Her wrongful-death beneficiaries (collectively “Cooper”) filed suit in the Lawrence County Circuit Court against Savoie; Fleisha Sanford, Savoie’s mother; and Sea West, Savoie’s employer.

¶ 3. Cooper eventually settled with Sa-voie, and the suit against him was dismissed. The trial court granted summary judgment in favor of both Sanford and Sea West. Since Sanford was dismissed as a party to this appeal, the only issue is whether the trial court erred by granting summary judgment for Sea West.

■! FACTS

■ ¶ 4. Savoie began working for Sea West in December 2013. One condition of employment was passing a drug test. Zachary Hughes, Sea West’s safety representative, administered Sávoie’s ' preemployment drug test. In his deposition, Hughes noted that this particular drug test screened for six different drugs, including marijuana, and Savoie’s test was negative for all six.

¶ 5. Savoie admitted to drug use, most frequently marijuana and whippets—small canisters containing pressurized nitrous oxide. On August 6, 2014, the night before the accident, Savoie smoked marijuana between 9 p.m. and midnight. Savoie also admitted to smoldng marijuana at 5 a.m. the day of the accident. During his deposition, Savoie stated he could not remember the accident—only that he was driving on Highway 84 around 11:30 a.m. during his lunch break. He then woke up, and his truck and Mary’s vehicle were both in a ditch. Savoie could not say whether Mary’s yehicle was parked in the road or on the side of the road when he struck it. Testing of Savoie’s blood revealed the presence of marijuana.

¶6.^ the time of the accident, Savoie hád been living -with his mother, Sanford. Savoie stated that he did not use drugs in the house or keep drug paraphernalia there. Savoie further stated that he only smoked marijuana outside the house and only if his mother was absent. Although Sanford had found marijuana in Savoie’s room in the past, she was not aware of his current drug use. And she did not see him the night prior to or the morning of the accident.

¶ 7. Chase Westbrooks, the owner of Sea West, stated the company had a safety manual that included the drug policy. This manual was shown to all new employees, including Savoie. According to West-brooks, he had no reason to suspect Savoie of any drug use. He frequently observed his employees during work and had never seen Savoie act as if he was under the influence of drugs.

STANDARD OF REVIEW

¶8. The grant of a motion for summary judgment is reviewed de novo. Karpinsky v. Am. Nat'l Ins., 109 So.3d 84, 88 (¶ 9) (Miss. 2013). We view the evidence “in the light most favorable to the party against whom the motion has been made.” Id.

Summary judgment is appropriate and 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 [a] judgment as a matter of law. Importantly, the party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in [Mississippi Rule of Civil Procedure 5b], must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be entered against him,
[The Mississippi Supreme] Court has explained that in a summary judgment hearing, the burden of producing evidence in support of, or in opposition to, the motion is a function of Mississippi rules regarding the burden of proof at trial on the issues in question. The mov-ant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law. The movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [the movant] would bear the burden of proof at trial. Furthermore, 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.

Id. at 88-89 (¶¶ 10-11) (internal quotation marks, emphasis, and citations omitted).

DISCUSSION

¶ 9. In the only issue on appeal, we must determine whether the trial court properly granted summary judgment for Sea West.

¶ 10. Cooper first contends that the trial court addressed an issue in its order granting summary judgment that Sea West did not raise in its motion for summary judgment—namely, that Sea West was not negligent regarding its drug testing and policies. This particular issue was not raised in Sea West’s motion or amended motion for summary judgment, but both parties discussed it during the summary-judgment hearing. The trial court did note that “Sea West satisfied its own policies regarding drug testing, but, even if it had not, there is no proximate causal connection between the employer’s actions in drug testing and the accident in this case.” Regardless, the trial court’s main reason for granting summary judgment for Sea West was that Sea West was not vicariously liable for Savoie’s actions. The trial court found the following:

At the time of the accident, Savoie was off the clock, in his personal vehicle, and he was not paid for his lunch break. He was- on a personal errand that was not in furtherance of his employer’s interest. The undisputed record evidence shows that Savoie was not within the course and scope of his employment at the time of the accident .... Sea West is not vicariously liable for Savoie’s actions as a matter of law. ■

¶ 11. “[T]he doctrine of responde-at superior, from' which vicarious liability is derived, .:. specifically applies to an employer-employee relationship and holds employers liable in tort for the negligent actions of their employees, taken on behalf of the employer while 'in the course and scope of their employment.” Thomas v. Cook, 170 So.3d 1254, 1259 (¶ 21) (Miss. Ct. App. 2015). In determining whether an employee is acting within the scope of his employment, the proper question to ask is “was he at the time doing any act in furtherance of his master’s] business?” Holliday v. Pizza Inn Inc., 659 So.2d 860, 864 (Miss. 1995). We agree with the trial court that Sea West was not vicariously liable for Savoie’s actions. At the time of the accident, Savoie was on his unpaid lunch break and driving his personal vehicle. There is no evidence that Savoie was acting in furtherance of Sea West’s business. See also Miss. Power & Light Co. v. Laney, 247 Miss. 71, 81-86, 154 So.2d 128, 132-34 (1963). Savoie did receive a per diem on the days he had to travel for work, but on the day in question, he was working at Sea West.

¶ 12. Cooper also contends that genuine issues of fact exist regarding Sea West’s knowledge of Savoie’s drug use and its inadequate drug screening—facts that Cooper previously argued were improperly raised during the summary-judgment hearing. However, Westbrooks stated in his deposition that he frequently observed his employees during work and had never seen Savoie act as if he was under the influence of drugs. Westbrooks stated that he had suspected two previous employees were using drugs and fired them after they refused to take a drug test. Although Savoie tested positive for marijuana on the day of the accident, there was no expert evidence- regarding the test results or how the level of marijuana present, might affect someone. There was simply no evidence that Sea West knew or should have known that Savoie was under the influence of marijuana on the day of the accident.

¶ 13. THE JUDGMENT OF THE LAWRENCE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. ’

      . Cooper contends that Mary’s vehicle was parked on the side of the highway. But the police report indicates Mary’s car was "in the right lane of U,S. [Highway] 84 Westbound.” The section in the report titled ''[Contributing circumstances” contains an “x” in the box "Íl]ying and/or illegally in roadway.” Also, "roadway” is marked under the section in the report titled "[c]rash location/’


author: GREENLEE, J.,

text:
    BAR-TIL, INC., Appellant/Cross-Appellee v. SUPERIOR ASPHALT, INC. and Pull-A-Part of Jackson, LLC, MMC Materials, Inc., and H & E Equipment Services, Inc., Appellees/Cross-Appellants
    NO. 2015-CA-01412-COA
    Court of Appeals of Mississippi.
    05/09/2017

      HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT, J. DEWAYNE THOMAS, J.
    ATTORNEYS FOR APPELLANT: CHUCK. MCRAE, SETH. CLAYTON LITTLE, CHRISTOPHER ANTHONY BAMBACH
    ATTORNEYS FOR APPELLEES: JOSEPH LEE ADAMS, LINDSAY THOMAS DOWDLE, DONALD ALAN WIND-HAM, CRANE D. KIPP, PATRICK VANCE DALY, CORY LOUIS RADI-CIONI
    BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶ 1. This case requires this Court to decide whether a plaintiff attorney’s charging lien has attached and has priority over third-party garnishors when the monies satisfying a final judgment obtained by the attorney’s efforts are interpled by the garnishee into the registry of the, court rather than delivered to the attorney’s actual possession. With no statutory directive here, we apply common-law principles to hold that the charging lien has attached and does have priority.

FACTS AND PROCEEDINGS BELOW

¶ 2. In 2007, Bar-Til Inc. entered into a contract with Superior Asphalt Inc. to perform work related to clearing acreage and stripping topsoil. Superior Asphalt failed to pay Bar-Til for all of .the work completed. Represented by the McRae Law Firm on a contingency-fee basis, Bar-Til sued Superior Asphalt for breach of contract in 2009.

¶ 3. As a result of Superior' Asphalt’s failure to pay Bar-Til, Bar-Til failed to pay H&E Equipment Services Inc. H&E Equipment obtained a default judgment against Bar-Til in 2009, and in 2010 was granted permission to intervene in Bar-Til’s suit against Superior Asphalt. H&E Equipment properly served a writ of garnishment against Superior Asphalt in 2012.

¶ 4. In 2012, after McRae Law Firm expended more than $16,000 in expenses, Bar-Til Won a judgment against Superior Asphalt (including interest) in the amount of $205,839.65. Superior Asphalt did not appeal the judgment, but instead filed a motion to interplead $205,839.65 into the registry of the court under that same cause number. Bar-Til appealed the chancellor’s denial of punitive damages. While the appeal was pending in this Court, the chancellor granted Superior Asphalt’s renewed motion to interplead the funds, and issued an order declaring the judgment satisfied in full.

¶ 5. In 2014, this Court issued an opinion affirming the chancellor’s denial of Bar-Til’s request for punitive damages, Counsel for another Bar-Til creditor, MMC Materials Inc., noticed our opinion while browsing this Court’s weekly hand-down list. MMC Materials had obtained a judgment against Bar-Til in 2008 unrelated to the contract dispute between Bar-Til and Superior Asphalt. Newly aware that Bar-Til had funds available to pay its creditors, MMC Materials filed a motion to intervene and claim a portion of the interpled funds. Also around 'this time,' MMC Materials properly served Superior Asphalt with a writ of garnishment, which Superior Asphalt answered acknowledging its debt to Bar-Til and referencing the interpled funds.

¶ 6. The McRae Law Firm also filed a motion asserting priority over the inter-pled funds and requesting permission to withdraw an amount representing its forty-percent contingency fee and reimbursement for expenses.

¶ 7. The interpled funds were insufficient to cover the claims of all parties. Rather than determine the respective priority of the parties, the chancery court doled out a portion of the funds to each party—including to the law firm, H&E Equipment, MMC Materials, and another individual creditor who had a judgment against Bar-Til but who had not obtained a writ of garnishment. The court awarded H&E Equipment $74,230, MMC Materials $23,626.08, the law firm $72,348.20, and the other nongarnishor creditor $35,634.81. The court cited its desire for an equitable solution.

¶8. Bar-Til appeals, and both H&E Equipment and MMC Materials cross-appeal.

DISCUSSION

I. Whether the attorney’s charging lien has priority.

¶ 9. A chancellor’s findings will be overturned on appellate review if we find that the chancellor was manifestly wrong or clearly erroneous, or applied an incorrect legal standard. Miller v. Parnell, 815 So.2d 1117, 1119 (¶ 9) (Miss. 2002). All of the parties agree that the chancellor erred as a matter of law in granting each party involved a portion of the money rather than determining the order of descending priority.

¶ 10. Mississippi has long recognized an attorney’s right to have a lien on judgments and decrees procured through an attorney’s efforts on behalf of his client. An attorney has a “paramount lien on the money decree which he [has] obtained.” Collins v. Schneider, 187 Miss. 1, 192 So. 20, 23 (1939). “[A]n attorney’s lien on judgments and decrees obtained by [him] for fees on account of services rendered, belongs to the family of implied common law liens, and is firmly engrafted on the common law.” Id. A charging lien attaches when the attorney does “successfully pursue the [lawsuit] to conclusion and obtain a final judgment from which there [is] no appeal.” Tyson v. Moore, 613 So.2d 817, 826 (Miss. 1992). At that point, “[the attorney’s] entitlement to a fee is vested.” In Collins, the Mississippi Supreme Court held that the attorney had a priority lien on funds held in the lower court’s register where “[t]he evidence conclusively show[ed] that nothing would have been recovered on the original cause of action ... had it not been for [the attorney’s] labor, zeal[,] and skill in the investigation and vigorous prosecution of that suit to a successful conclusion.” Collins, 192 So. at 22.

¶ 11. In Indianola Tractor Co. v. Tankesly, 337 So.2d 705, 706 (Miss. 1976), the Mississippi Supreme Court affirmed a trial court’s acknowledgment of a plaintiffs attorney’s lien on the proceeds of a successful garnishment action. In ordering disbursement of the judgment, the law firm was listed first in priority. Id. The court cited to Chattanooga Sewer Pipe Works v. Dumler, 153 Miss. 276, 120 So. 450, 453 (1929), in which the Supreme Court reiterated that “[i]t has been uniformly held by this [C]ourt that an attorney has a lien on the funds of his client for the services rendered in the proceeding by which the money was collected.”

¶ 12. Our appellate courts have noted since 1939 the absence in Mississippi of a “statute fixing or regulating the lien of an attorney, or the enforcement thereof.” Collins, 192 So. at 22. Consistent with common-law principles, multiple states statutorily mandate the priority of attorney’s fees, including Oregon, New York, California, Arkansas, Massachusetts, Alabama, and Georgia. For example, Alabama’s statute provides:

Upon actions and judgments for money, [attorneys] shall have a lien superior to all liens but tax hens, and no person shall be at liberty to satisfy the action or judgment, until the lien or claim of the attorney for his or her fees is fully satisfied; and attorneys-at-law shall have the same right and power over action or judgment to enforce their liens as their clients had or may have for the amount due thereon to them.

Ala. Code § 34-3-61(b). These statutes codify the equitable principle long recognized at common law that attorneys deserve payment for their successful services. The United States Court of Appeals for the Fifth Circuit, applying Mississippi law, held in American Fidelity that one of the rationales for not granting a law firm priority to retainage funds was that the law firm’s services had not been the cause of the release of the funds, therefore resulting in no injustice in not giving the law firm priority. We have the opposite situation at hand. Here, the services of the law firm—including seven years’ representation and over $16,000 in expenses—directly resulted in the judgment against Superior Asphalt.

¶ 13. Garnishees have the statutory right to compel interpleader. Miss. Code Ann. § 11-35-41 (Rev. 2004). This right, protects the garnishee from double liability on the same judgment. The charging lien, protecting the attorney’s right to the fruits of his labor, and the right to interplead, protecting the garnishee from double liability, should not intersect with each other in such a way that frustrates one or the other right. If we were to adopt the approach that the contingency is not triggered in this circumstance, then practically—or rather, unpractically—a plaintiffs attorney working for a contingency fee would need to research standing garnishment claims in all eighty-two Mississippi counties prior to determining whether to accept a case. Any case that may result in an interpleader may be too risky to pursue. As the Mississippi Supreme Court explained in 1939, “it would be most inequitable and unjust for [the other claimants to the judgment] to be allowed to ‘ride free’ on the facts of this case.” Collins, 192 So. at 23.

¶ 14. We also note that the third-party creditors can continue to pursue collection of any remaining funds owed them pursuant to their respective judgments against Bar-Til. But as to the law firm, if the charging lien has not attached and does not have priority, the law firm will only receive for its successful services what—if anything—is left after all of the garnishors have taken the first bite at the interpled funds.

¶ 15. Here, the monies would not be available for distribution to the garnishors had not Bar-Til’s right to the judgment first vested. Superior Asphalt surrendered the money in satisfaction of the judgment against it, with no further right of appeal. We find that Superior Asphalt’s deposit of the funds into the registry of'the court, consistent with its right to protect itself from double .liability, did not prevent the law firm’s charging lien from attaching to the interpled funds. The law firm is first in priority.

¶ 16. As to priority between H&E Equipment and -MMO Materials, MMC Materials properly concedes that H&E Equipment has priority. Even though MMC Materials’ judgment against Bar-Til was obtained first in 2008, priority here is governed by our garnishment statutes. Mississippi Code Annotated section 11-85-24(1) (Rev. 2004) provides in part that “[w]here more than one garnishment has been issued against an employee of a garnishee, such garnishee shall comply with the garnishment with which he was first served.” H&E Equipment was first to serve Superior Asphalt with a writ of garnishment related to any funds owed by Superior Asphalt to Bar-Til..

II.. The chancery court had jurisdiction to accept the interpled funds, and Bar-Til’s attorney’s fees and expenses were reasonable.

¶ 17. Bar-Til argues ,that the chancery court did not have the jurisdiction to accept the interpled- funds because at the time the funds were interpled, Bar-Til’s appeal on the issue of punitive damages was still pending. When an appeal is taken, the lower court loses “authority to amend, modify, or reconsider its judgment.” Corp. Mgnt., Inc. v. Greene Cty., 23 So.3d 454, 460 (¶ 13) (Miss. 2009); see also M.R.A.P. 8. However, “[w]hen an appeal has no supersedeas bond, a party may execute on the judgment.” Corp. Mgnt., 23 So.3d at 460 (¶ 13).

¶ 18. Superior Asphalt’s repeated motions to interplead the funds were not requests to “amend, modify, or reconsider” the court’s judgment. Rather, it merely sought to escrow á judgment that had not been stayed by supersedeas. In Mississippi, a party is not liable for post-judgment interest after impleading payments into the registry of the court. Gayden v. Kirk, 208 Miss. 283, 44 So.2d 410, 411-12 (1950) (holding that a “judgment will be corrected so as to exclude therefrom any interest upon [an] impleaded fund”). We therefore find that the chancery court had authority to accept the interpled funds, and that Bar-Til was not entitled to additional post-judgment interest once the funds were in-terpled. In fact, it would be inappropriate to permit a victorious plaintiff to deliberately dodge tender of a judgment for the sake of increasing post-judgment interest.

¶ 19. H&E Equipment argues that the law firm’s, expenses and forty-percent contingency fee are unreasonable. Attorney’s fees must be reasonable, whether contracted for or arising out of a common-law charging lien. As the Mississippi Supreme Court stated when determining distribution of judgment funds in Chattanooga Sewer Pipe Works, 120 So. at 453, “The [plaintiff] had a right to make this contract for a contingent fee, and there is nothing in the record to show ... that it was unreasonable or unconscionable, and we are therefore of. the opinion that these attorneys have a, paramount lien on the funds for [the amount contracted for]. ” Id.

¶ 20. On the facts of this case; we do not find grounds in the record to support that the fee or expenses are unreasonable. A forty-percent contingency fee is not inherently unreasonable, and similar fees have been affirmed. See Koehring Co. v. Hyde Constr. Co., 236 So.2d 377, 387 (Miss. 1970). This case took seven years to litigate, and the record contains an itemized breakdown of the $16,254.57 expenses incurred over the seven years. Bar-Til has not challenged the reasonableness of the fee it contracted for, and the law firm did not charge an additional fee for the appeal it made to this Court. This issue is without merit.

CONCLUSION

¶ 21. On this set of facts, we determine that the contingency was triggered, and that the law firm’s charging lien has priority over the third-party garnishors. The monies were interpled as the direct result of the law firm’s services, and the judgment was declared satisfied in full. The law firm has first priority and is entitled to withdraw from the interpled funds $98,590.51, which represents $16,254.57 in expenses and forty percent of the judgment. Then, H&E Equipment, second in priority, is entitled to withdraw from the remaining interpled funds up to the amount on the face of its writ of garnishment. MMC Materials, as third in priority after H&E Equipment, is then entitled to withdraw from the remaining portion of the interpled funds up to the amount on the face of its writ of garnishment. Wé therefore reverse and remand for further proceedings consistent with this opinion.

¶ 22. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT, IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT/CROSS-APPEL-LEE AND ONE-HALF TO THE AP-PELLEES/CROSS-APPELLANTS.

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

      . The rights of this creditor are not discussed in this opinion because he does not have a writ of garnishment attached to this judgment. This creditor did not participate in this appeal.

      . As discussed at oral argument in this case, this Court and the parties are.unaware wheth,er the interpled funds have'’been kept by Hinds County, in an interest-bearing, account.


author: WILSON, J.,

text:
    Kuren Cordell KEYS a/k/a Kuren Keys a/k/a Kuren K. Keys a/k/a Kuren Kordell Keys a/k/a Kurrell Cordell Keys, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01300-COA
    Court of Appeals of Mississippi.
    05/09/2017

      HARRISON' COUNTY- CIRCUIT COURT, FIRST JUDICIAL DISTRICT, CHRISTOPHER LOUIS SCHMIDT, J.
    OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE’ MCMILLIN, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶1. A jury in the Harrison County Circuit Court convicted Kuren Kordell Keys of two counts of sexual battery. On appeal, Keys’s appointed counsel from the Office of State Public Defender, Indigent Appeals Division, filed a Lindsey brief, certifying that she has reviewed the record and has concluded that Keys’s case does not present any arguable issues for appeal. Keys subsequently filed a pro se brief in which he challenges the weight and sufficiency of the evidence and alleges various errors at trial. We have reviewed the issues raised by Keys and the record as a whole and find no reversible error. Therefore, we affirm Keys’s convictions ¿nd sentences.

FACTS AND PROCEDURAL HISTORY

¶2. On November 28, 2013, AKT went to Club Illusions in Gulfport, where she was training to be a waitress. She arrived at the club between 11 p.m. and midnight. AKT planned to get a ride home with a friend and her friend’s boyfriend, but the boyfriend later told AKT that he could not give her a ride because he had been drinking. Another friend of AKT, Deanthony Haralson, then agreed to give her a ride home. Haralson lived near AKT. Haralson, AKT, and two men she did not know— later-identified as Keys and Donnell Bol-den—left the club in a four-door, silver Chevrolét sedan.

¶3. Keys gave Haralson the keys and told him to drive. Bolden sat in the front passenger seat, and Keys and AKT sat in the backseat. Haralson dropped Bolden off first, then drove to his apartment and got out of the car. Keys took over driving, and AKT moved into the front passenger seat. Keys told AKT he would take her home, but she soon réalized he was driving in the wrong direction. 'She asked Keys where he was going, and he told her that he needed to “hit a lick.” Keys eventually stopped the car on the side of County Farm Road in a rural area of Harrison County. Keys told AKT that he needed to wait there for a friend to bring him money.

¶4. This angered AKT because it was around 5 a.m., and she needed to get home. She expressed her anger to Keys, then turned toward her side, window. In her peripheral vision, AKT noticed movement and turned to see Keys stroking his penis. AKT tried to' get out' of the car and said she would find her own way home; however, Keys grabbed her, pulled her back inside the car, and told her, “[T]his ride ain’t free.” Keys threatened to shoot AKT and ordered her to remove her underwear. AKT told Keys- that she. had recently given birth and had stitches. Keys told her to perform oral sex on him instead.

¶5. AKT began screaming and crying, but Keys again threatened to shoot her and displayed a box-cutter blade. Keys held the blade • near AKT’s face as she began to perform oral sex on him. AKT was still screaming and crying, so Keys pulled her out of the car by her hair and pushed her up against the back of the car on the driver’s side. Keys forced his penis inside AKT’s vagina for approximately thirty seconds before a vehicle appeared on the road traveling in their direction. Keys shoved AKT to the ground so the passing ear could not see her and held her there until the car passed. AKT realized it was a law enforcement vehicle and tried to signal the driver, but he did not see her.

¶6. Once the car passed, Keys picked up AKT, pushed her back over the car, and tried to penetrate her again. As he did, a truck appeared traveling in the opposite direction.- AKT managed to break free- of Keys'and ran into the road in front of the oncoming vehicle. The driver, Anita Cor-win, stopped, and AKT ran to the passenger side door, screaming that she had been raped and pulling on the door handle. Cor-win unlocked the door, and AKT got inside Corwin’s truck.

¶7. Corwin saw the silver Chevrolet drive away, but she was not able to identify its driver. Corwin had just passed a fire station and had seen a deputy parked there, so she and AKT drove back to the fire station. As they drove, Corwin called 911 to report the assault.

¶8. Captain John Massengill of the Harrison County Sheriffs Office was at the fire station when Corwin and AKT arrived. Massengill had been driving the first vehicle that passed Keys’s parked car. Massen-gill testified that he slowed as he passed and made eye contact with Keys. However, Massengill saw-only Keys, and Keys did not indicate that he needed assistance, so Massengill continued to the fire station to use the restroom. Massengill testified that he intended to return to check on Keys after he left the fire station.

¶9.-While at the fire station, Massengill heard a call over his radio that a possible assault had occurred, on County Farm Road and that the victim was en route to the fire station. Massengill met Corwin and AKT at the front of the station. AKT was sobbing and shaking, and Massengill was afraid that she would go into shock. When Massengill led her inside the station, AKT ran toward a sink and began gagging and dry heaving. AKT eventually collapsed and was transported to the hospital via ambulance.

¶10. Before AKT collapsed, she told Massengill that the crime scene was the parked car he had passed on County Farm Road, so he broadcast a description of the vehicle: a newer model four-door sedan, gray or silver in color. Massengill was unable to give a full description of Keys because it had been dark and he had only seen Keys from the waist up. Massengill and another deputy, Walter Dukes, returned to the area where Massengill had seen Keys’s car. It was a cold morning, and there was frost on the ground, so the vehicle’s tire tracks were easy to find. The officers also found AKT’s underwear near the tracks.

¶11. Dukes met with AKT at the hospital. AKT told Dukes that she did not know the man who raped her, but she knew that he was a friend of Haralson. Investigators made contact with Haralson, and Haralson identified Keys as the only man in the car with AKT after they dropped him off at his apartment.

¶12. Nurse Jennifer Duncan was in the emergency room when AKT arrived by ambulance around 7:10 a.m. Duncan testified that AKT was upset and disheveled. AKT told Duncan that she had been sexually assaulted, so Duncan conducted a sexual assault exam to collect any evidence. AKT stated that the assault was oral and vaginal, so Duncan took swabs from AKT’s mouth, vulva, and vagina. Duncan also collected AKT’s clothes and drew a blood sample. AKT told Duncan that she had given birth about four weeks earlier. Duncan testified that AKT was crying throughout the examination. Duncan testified that AKT told her what had occurred. Duncan’s testimony concerning what AKT told her was consistent with AKT’s own testimony at trial.

¶13. An investigator with the Harrison County Sheriffs Office later collected a DNA sample from Keys. This sample, along with the swabs that Duncan collected from AKT, was given to Scales Biological Lab to perform DNA analysis. A forensic analyst from Scales testified that she performed tests on these swabs and could not exclude Keys or his patrilineal relatives as potential contributors of the male DNA found on AKT’s vulvar and vaginal swabs. The vulvar swab and vaginal swab were both a match for Keys or his patrili-neal relatives. Both samples excluded 99.9 percent of the male population as contributors.

¶14. On September 2, 2014, a grand jury in the First Judicial District of Harrison County returned an indictment against Keys for two counts of sexual battery against AKT under Mississippi Code Annotated section 97-3-95(l)(a) (Rev. 2014). Count I alleged that Keys inserted his penis into AKT’s mouth without her consent. Count II alleged that Keys inserted his penis into AKT’s vagina without her consent. Keys was tried on August 10 and 11, 2015, and the jury returned a guilty verdict on both counts. The trial judge sentenced Keys to fifteen years for Count I and thirty years for Count II, with the counts to run consecutively, in the custody of the Mississippi Department of Corrections. Keys filed a motion for judgment notwithstanding the verdict (JNOV) or a new trial, which was denied. On appeal, as noted above, Keys filed a pro se brief after his appointed counsel filed a Lindsey brief.

ANALYSIS

¶15. The statement of issues in Keys’s pro se brief identifies eleven assignments of error. Some of these issues overlap, and all may be categorized as challenges to the weight or sufficiency of the evidence, objections to jury instructions, or objections to comments by the prosecutor. We address the issues below in that order.

I. Weight and Sufficiency of the Evidence

¶16. When we address a challenge to 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.” Bush v. State, 895 So.2d 836, 843 (¶16) (Miss. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The issue is not whether we would have found Keys guilty based on the evidence at trial; rather, his conviction must be affirmed if there was enough evidence for “any rational trier of fact” to have returned a guilty verdict. Id.

¶17. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. at 844 (¶18). The evidence must be “[v]iewed in the light most favorable to the verdict,” and we will affirm unless “[t]he trial court ... abuse[d] its discretion in denying a new trial.” Id. at (¶19).

¶18. Applying these standards, we have no difficulty concluding that there was sufficient evidence to sustain Keys’s convictions and that the verdict is not against the overwhelming weight of the evidence. Our Supreme Court has long held that even “the totally uncorroborated testimony of a rape victim is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other evidence.” Christian v. State, 456 So.2d 729, 734 (Miss. 1984). In this case, AKT’s testimony was substantially corroborated by, inter alia, DNA evidence, Haral-son’s testimony, and the testimony of those to whom she immediately reported the assault. There was ample evidence to support the jury’s verdict finding that Keys sexually penetrated AKT both orally and vaginally without her consent. See Miss. Code Ann. § 97-3-95.

¶19. As to Count I, Keys argues that he should not have been convicted because Instruction S-4 stated as follows: “The Court instructs the jury that ‘sexual penetration’ is any penetration of the genital or anal openings of another person’s body by any part of a person’s body.” Although the Court mistakenly omitted fellatio from this definition, the elements instruction for Count I clearly required the jury to find beyond a reasonable doubt that Keys willfully committed sexual battery “by engaging in an act of sexual penetration, to-wit: by inserting his penis into the mouth of [AKT] ” without her consent. The instruction further stated that if the jury could not find any one or more of the elements beyond a reasonable doubt, it was required to find Keys not guilty. The jury obviously found that all essential elements had been proven beyond a reasonable doubt. Given the clarity of the elements instruction, we find that the omission from the separate instruction was harmless.

¶20. Keys’s pro se brief also makes a variety of arguments to the effect that there was insufficient evidence of his “intent” or “specific intent” because no witness testified about Keys’s “mind set” or “state of mind.” These arguments are without merit. The State was only required to prove beyond a reasonable doubt that Keys penetrated AKT without her consent and not by mistake or accident. Cf. Friley v. State, 856 So.2d 654, 658 (¶18) (Miss. Ct. App. 2003) (Southwick, P.J., concurring) (“Sexual battery is a ‘general intent’ crime, i.e., it is only necessary that the accused have the intent to commit an unlawful act and that the offense not have been an accident or mistake.”), rev’d on other grounds, 879 So.2d 1031 (Miss. 2004). Again, there was ample evidence to support the jury’s verdict and resultant convictions. Therefore, the trial court properly denied Keys’s motions for a directed verdict, peremptory instruction, JNOV, and a new trial.

II. Jury Instructions

¶21. Keys challenges various jury instructions on a number of grounds. Our standard of review with regard to jury instructions “is well-established”:

Jury instructions must be read as a whole to determine-if the instructions were proper. Jury instructions must fairly announce the law of the case and not create an injustice against the defendant. This rule is summed up as follows: ..:, if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.

Davis v. State, 18 So.3d 842, 847 (¶14) (Miss. 2009) (internal citations, quotation marks omitted).

. A. Instructions S-l and S-2

¶22. Instructions; S-l and S-2 properly and completely instructed' the jury on the elements of the offense of sexual battery as they related to- Count I and Count II. At trial, défense counsel stated' as to S-l, “We just object to it generally.” As to S-2, defense counsel stated, “Again, we would just object to it.” Counsel never articulated the basis of the objection. On appeal, Keys’s pro se brief argues that the instructions were erroneous because they used the victim’s initials rather than her full name. He also argues that the instructions were erroneous because they referred to his indictment, but his indictment was never read to the jury. There is no requirement that instructions use the victim’s full name rather than initials or that the indictment be read to the jury. Keys’s challenges to S-l and S-2 are without merit.

B, Instruction S-3

¶23. Instruction S-3 read:

The court instructs the 'Jury that in order to sustain a, conviction for the crime of Sexual Battery some penetration must be proven beyond a reasonable doubt. However, it need not be full penetration. Even the slightest penetration is sufficient to prove the crime of Sexual Battery.

¶24. At trial, defense counsel objected to S-3 on the ground that “[t]he jury should understand and know what penetration is without a definition being given.” In contrast, on appeal, Keys argues that the instruction’s reference to “the, slightest penetration” is a misstatement of the law, vague, and unconstitutional.

¶25. The instruction was a correct and proper statement of'the law. The Mississippi Supreme Court has held that slight penetration is sufficient to constitute sexual battery. Johnson v. State, 626 So.2d 631, 633 (Miss. 1993). In addition, this Court has approved this precise instruction as a “proper statement'of the law.” Wilson v. State, 990 So.2d 798; 802 (¶13) (Miss. Ct. App. 2008) (citing McKnight v. State, 738 So.2d 312, 318 (¶20) (Miss. Ct. App. 1999)); accord Galloway v. State, 122 So.3d 614, 635 (¶¶38-39) (Miss. 2013); see also Hicks v. State, 441 So.2d 1359, 1361 (Miss. 1983) (holding that the sexual battery statute’s proscription of the non-consensual sexual penetration of another is “unambiguous” and constitutionally valid). This issue is without merit,

C. Instruction S-4

¶26. As noted above, Instruction S-4 stated: “The Court instructs the jury that ‘sexual penetration’ is any penetration of the genital or anal openings of another person’s body by any part of a person’s body.” As discussed above, the instruction’s omission of fellatio was harmless error because Instruction S-l clearly instructed the jury on the essential elements of Count I. Aside from that issue, Keys argues that the instruction’s use of the term “any” renders the instruction vague or misleading. However, the instruction properly and clearly states the applicable law. See Miss. Code Ann. § 97-3-97(a); Galloway, 122 So.3d at 635 (¶¶38-39). Accordingly, Keys’s argument is without merit.

D. Sharplin Instruction

¶27. After the jurors deliberated for some period of time, they sent the trial judge a note with a question concerning both Count I and Count II: “What happens if we cannot come to full consensus as to guilty or not guilty[?] We have some concern as to whether the sexual acts were consensual or not. Right now we have 11 guilty [and] 1 not guilty.” The trial judge conferred with counsel and, over Keys’s objection, gave a standard “Sharplin instruction,” as approved by the Mississippi Supreme Court in Sharplin v. State, 330 So.2d 591, 596 (Miss. 1976). See also Bell v. State, 202 So.3d 1239, 1241 (¶7) (Miss. 2016) (reaffirming that a Sharplin instruction may be given when the jury is re-turiied for further deliberations). The jury continued its deliberations and returned a unanimous guilty verdict, which the jurors confirmed upon being polled.

¶28. A Sharplin instruction is given in lieu of an “Allen charge,” which is used in federal court and which our Supreme Court has found to be “inappropriate and coercive.” Lafayette v. State, 90 So.3d 1215, 1217 (¶8) (Miss. 2012). A trial judge may give a Sharplin instruction if the judge receives a note indicating division among the jurors, but the “judge feels that there is a likelihood that the jury might reach a verdict” if returned for further deliberations. Bell, 202 So.3d at 1241 (¶7) (quoting Sharplin, 330 So.2d at 596). In the alternative, the judge may simply state to the jurors, “Please continue your deliberations.” Id. Whether to give a Sharplin instruction is committed to the discretion of the trial judge, Banks v. State, 394 So.2d 875, 878 (Miss. 1981), and the trial judge did not abuse his discretion in this case by giving an instruction that precisely tracked the instruction approved in Sharplin. Keys’s argument is without merit.

III. Prosecutor’s Comments

¶29. Keys claims that -the prosecutor’s use of words such as “rape” and “victim” was “inflammatory and prejudicial.’’ Keys did not object to any of the allegedly prejudicial statements at trial, so these arguments are procedurally barred on appeal. Walker v. State, 913 So.2d 198, 238 (¶148) (Miss. 2005). Moreover; a prosecutor is permitted to comment on “facts introduced in evidence, deductions and conclusions that may be reasonably drawn therefrom, and application of law to facts.” Byrom v. State, 863 So.2d 836, 873 (¶125) (Miss. 2003). The prosecutor’s comments were based on AKT’s testimony and were not inflammatory or unfairly prejudicial. Also, as discussed above, the jury was properly instructed on the State’s obligation to prove the elements of sexual battery beyond a reasonable doubt. Accordingly, this argument is without merit.

¶30. Finally, Keys contends that the State unfairly commented on his decision not to testify at trial. Keys specifically points to four allegedly improper comments during the course of the State’s closing argument:

• We know how the DNA got there. This defendant, without her consent, put his penis in her vagina. There has been no testimony to refute that.
• [AKT] puts herself on this witness stand to be cross-examined by the defense, and she ... points at this defendant, and said this is the defendant that did this to me. And there’s been nothing to refute that.
• [T]hey have an opportunity to call witnesses to support their theory. There has not been one person to take this witness stand to tell you Deanthony Haralson is from the father’s side.[] Not one. The evidence is that he is not. There is nothing to refute it. That’s what I mean, you look at the credible evidence. And what does it support? It all points to one person and one person alone.
• And there’s been no credible evidence to dispute [AKT’s testimony]. All the defense has tried to do is throw out as much stuff as possible to attack every witness without putting on any credible evidence to support it, not one.

¶31. Keys failed to object to any of these comments at trial, so we review his claim only “under the doctrine of plain error.” Mitchell v. State, 21 So.3d 633, 642 (¶31) (Miss. Ct. App. 2008). “As applied to closing arguments, plain error may only be found when the substance of the statement is out of bounds for closing arguments.” Id. (quoting Boyd v. State, 977 So.2d 329, 337 (¶34) (Miss. 2008)) (quotation marks omitted). However, regardless of our standard of review, we find no error in the State’s closing argument. The Mississippi Supreme “Court has repeatedly held that attorneys on both sides are allowed wide latitude in their closing arguments and that there is an obvious difference between a comment on the defendant’s failure to testify and a comment on the defendant’s failure to put on a credible defense.” Wright v. State, 958 So.2d 158, 164 (¶14) (Miss. 2007) (emphasis added) (citing Underwood v. State, 919 So.2d 931, 939-40 (¶23) (Miss. 2005); Howell v. State, 860 So.2d 704, 751-52 (¶169) (Miss. 2003)); accord Dora v. State, 986 So.2d 917, 921-24 (¶¶8-14) (Miss. 2008). While the former is not permitted, the latter is permissible. As in' the above-cited cases, the prosecutor’s comments during closing argument in this case were directed toward Keys’s general failure to put on a credible defense, not his decision not to testify. Accordingly, the prosecutor’s comments did not violate Keys’s constitutional rights.

CONCLUSION

¶32. The State presented sufficient evidence to convict Keys of two counts of sexual battery, and the jury’s verdict was not against the overwhelming weight of the evidence. In addition, the jury was fairly instructed on the applicable law, and Keys was not unfairly prejudiced by the prosecutor’s comments or closing argument. Accordingly, Keys’s convictions and sentences are affirmed.

¶33. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, OF CONVICTION OF TWO COUNTS OF SEXUAL BATTERY, AND CONSECUTIVE SENTENCES OF' FIFTEEN YEARS AND THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO REGISTER AS A SEX OFFENDER, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . See Lindsey v. State, 939 So.2d 743, 748 (¶ 18) (Miss. 2005).

      . The Court of Appeals does not identify sexual assault victims. In the interest of the victim’s privacy, initials have been substituted in place of her name.

      . See Miss. Code Ann. § 97-3-97(a) (Rev. 2014) (“ 'Sexual penetration' includes,” inter alia, ‘‘fellatio ....”).

      . Keys also argues that "the verdict is contrary to law,” at least as to Count II, because the State presented evidence of "the totally separate crime” of rape. However, the law does not require the State to prosecute the defendant for rape when, as in this case, the evidence supports a charge of rape or sexual battery.

      . Counsel for Keys objected that the instruction was "improper1’ because the jury had been unable to reach a decision after "deliberating for a sufficient amount of time,”

      . Keys makes ■ related assertions that the trial judge erred by not declaring a mistrial and by giving Instruction C-2. These issues are also without-merit. Keys did hot move for a mistrial at trial, so the issue is waived. In any event, the trial judge did not abuse his discretion by returning the jury for further deliberations rather than declaring a mistrial. See, e.g,, Moore v. State; 204 So.3d 339, 341-43 (¶¶7-9) (Miss. Ct. App. 2016). Instruction C-2 is the standard instruction on the requirement of a unanimous verdict, which largely tracks the second paragraph of the standard Sharplin instruction. Keys did not object to the instruction, so the issue is procedurally barred. Moreover, the instruction was entirely proper and consistent with Mississippi Supreme Court precedent. See, e.g., Banks, 394 So.2d at 878.

      . Recall that forensic analysis could not exclude Keys or his patrilineal relatives as potential contributors of the male DNA found on AKT’s vulvar and vaginal swabs.

      . Keys’s pro se brief also argues that he is entitled to reversal based on "cumulative error.” As we have found only one harmless error in the wording of Instruction S-4, Keys’s cumulative error argument fails as well.