author: ISHEE, J.,

text:
    Beth DONALDSON, Colie Donaldson and Coby Donaldson, Appellants v. Dominic OVELLA, Appellee
    NO. 2014-CA-01509-COA
    Court of Appeals of Mississippi.
    01/17/2017

      ROBERT C. WILLIAMSON JR., JACKSON,. DAVID AVAYNE BARIA, BRANDON CURRIE JONES, ATTORNEYS FOR APPELLANTS
    DORRANCE DEE AULTMAN JR., GULFPORT, ATTORNEY FOR APPEL-LEE
    BEFORE LEE, G.J., BARNES AND ISHEE, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. In- February 2010, Dominic Ovella sued B. & C Construction and Equipment LLC (B & C) and its individual officers and employees Beth, Colie, and Coby Donaldson (Donaldsons) in 'federal district court. Ovella asserted a variety of claims arising from a construction contract between Ovella and B & G. All claims against the Donaldsons, individually, were dismissed. Ovella’s claims against B & C, however, were submitted .to the jury, which returned a take-nothing verdict.in favor of B & C. The district court subsequently denied B & C’s and the Donald-sons’ posttrial motions for sanctions. Before this Court now are the consolidated actions of the Donaldsons against Ovella for the malicious prosecution of that federal action,, filed in the Harrison County Circuit Court in November 2012. The circuit court granted Ovella’s motion for summary judgment in October 2014, based upon procedural grounds, as well as with respect to the merits of the Donaldsons’ claims. The Donaldsons now appeal. Finding error, we reverse.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In March 2008, Ovella and B & C entered into a contract for the construction of a personal residence to be built in Pass Christian, Mississippi. B & C agreed in the contract to construct the home according to plans Ovella provided to it, and which were attached to the contract. The contract specifically noted, among other things, that the house would be built on 12" x 12" wooden columns. The total contract price for the home was $559,000. Throughout construction, Ovella orally ordered a number of alterations to the plans. Specifically, Ovella authorized a change to the home’s support columns. These columns were originally proposed to be 12" x 12" wooden columns. However, Ovella orally approved a change to the columns to mimic brick columns he had seen on another home that B & C had constructed. Ovella contends that he approved this change based on the recommendation and advice of Colie. Ultimately, the columns were built as 10" x 10" wooden columns- surrounded by stucco because of á notable increase in the price of brick cladding for the columns. Ovella claimed that this change from stucco to brick was agreed to upon the condition that he would receive a credit toward other improvements for the home. Disputes exist in the form of conflicting testimony regarding the alteration of the columns.

¶ 3. In May 2009, Ovella and his spouse moved into their house, and received a certificate of occupancy by June 2009. B & C sent' a final bill on October 5, 2009, totaling $66,687.42, which included $38,869.26 for upgrades, overages, and various additions that had been made on the home during construction. Ovella claimed that he had made timely payments for the construction from June 2008 until October 5, 2009, with payments totaling $531,181.84. However, he refused to pay the final bill until a number of issues were resolved and he received credits he believed had not been deducted. After that time, Ovella informed B & C that he could feel the house sway in high winds, and that movement within the home caused the house to move on the columns. As a result, B & C installed' bracing under the home, which Ovella conceded slightly helped with the issue of swaying. Over a period of several months, Ovella” issued various “punch lists” to B & C for items that Ovella wished to have continuously-changed or corrected. Communications eventually broke down between Ovella and B & C over the disputed balance, resulting in an impasse among the parties. Ovella then filed a complaint against B & C and the Donaldsons individually on March 1, 2010, in federal district court, regarding construction and payment issues.

¶ 4. In Ovella’s complaint, Ovella asserted various claims against B & C, as well as claims against the Donaldsons individually for breach of contract, fraud, negligence, and unjust enrichment. In response, the Donaldsons individually filed counterclaims for intentional infliction of emotional distress, as well as for sanctions under 28 U.S.C. § 1927 (2012) and Federal Rule of Civil Procedure 11. The Donaldsons voluntarily dismissed their intentional-infliction-of-emotional-distress claims over a year before trial, and reserved their claims for sanctions at the close of the federal trial in the form of posttrial motions. The district court dismissed all of Ovella’s claims against the Donaldsons individually, as well as all claims by Ovella and B & C for unjust enrichment. Ultimately, the jury found in favor of B & C. At the close of trial, the district court denied all claims for relief regarding sanctions under Rule 11 and 28 U.S.C..§ 1927. Ovella did not appeal.

¶ 5. In November 2012, each of the Don-aldsons sued Ovella in circuit court for malicious prosecution, negligent and intentional infliction of emotional distress, and to recover attorney’s fees and expenses incurred during the defense of the federal action. Ovella moved for summary judgment, which the circuit court granted. In doing so, the circuit court concluded that, based upon the federal action, the Donaldsons’ claims were barred under the doctrines of res judicata, collateral estoppel, and judicial estoppel. The circuit court also held the Donaldsons failed to present evidence sufficient to create genuine disputes of material fact regarding the merits of their malicious-prosecution claims. The Donaldsons timely appealed. Finding error on the part of the circuit court, we reverse.

STANDARD OF REVIEW

¶ 6. A trial court’s grant or denial of summary judgment is reviewed de novo. Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶ 6) (Miss. 2005). Summary judgment is proper 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.” M.R.C.P. 56(c). “If any triable facts exist, the lower court’s grant of a summary judgment will be reversed; otherwise the decision will be affirmed.” Miller v. Meeks, 762 So.2d 302, 304 (¶ 3) (Miss. 2000). The evidence must be viewed in' the light most favorable to the party opposing the motion. Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss. 2004). Only when the moving party has met its burden by demonstrating that no genuine issues of material fact exist should summary judgment be granted. Tucker v. Hinds Cty., 558 So.2d 869, 872 (Miss. 1990). “[Wjhere the party opposing the motion for summary judgment on a claim or defense upon which it bears the burden of proof at trial, and the moving party can show a complete failure of proof on an essential element of the claim or defense, other issues become immaterial and the moving party is entitled to summary judgment as a matter of law.” Crain v. Cleveland Lodge 1532, Order of Moose Inc., 641 So.2d 1186, 1188 (Miss. 1994).

DISCUSSION

I. The Circuit Court Erred in Granting Ovella’s Motion for Summary Judgment Because the Doctrines of Res Judicata, Collateral Estoppel, and Judicial Estoppel Do Not Apply to the Donaldsons’ Claims

¶ 7. The circuit court held that the Donaldsons’ claims were barred under the doctrines of res judicata, collateral estoppel, and judicial estoppel. We disagree,

A. Res Judicata

¶ 8. The Mississippi Supreme Court has stated that the doctrine of res judicata is “fundamental to the equitable and efficient operation of the judiciary and ‘reflects the refusal of the law to tolerate a multiplicity, of litigation.’ ” Gibson v. Williams, Williams & Montgomery P.A., 186 So.3d 836, 844 (¶ 16) (Miss. 2016) (quoting EMC Mortg. Corp. v. Carmichael, 17 So.3d 1087, 1090 (¶ 9) (Miss. 2009)). “The courts cannot revisit adjudicated claims and ‘all grounds for, or defenses to[,] recovery that were available to the parties in the first action, regardless of whether they were asserted or determined in the prior proceeding, are barred from re-litigation in a subsequent suit under the doctrine of res judicata.’ ” Id. (citing Harrison v. Chandler-Sampson Ins., 891 So.2d 224, 232 (¶ 28) (Miss. 2005)). As a doctrine of public policy, res judicata is “designed to avoid the expense and vexation attending multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent decisions.” Harrison, 891 So.2d at 224 (¶ 23) (internal quotations omitted).

¶9. In order for res judicata to apply, four basic identities must be present: (1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of the person against whom the claim is made. Gibson, 186 So.3d at 844 (¶ 17). Our supreme court has also added the additional requirement that the prior judgment must be a final judgment on the merits. Id. All five identities must be present, with the absence of any one being “fatal to the defense of res judicata.” Id.

¶ 10. On appeal, the Donaldsons argue that the subject matter of their malicious-prosecution claims and the subject matter of their requests for sanctions in the previous federal action are not identical. We agree. Regarding the first element, the supreme court has defined the “identify of the subject matter of the action” to mean “the substance of the lawsuit.” Hill v. Carroll Cty., 17 So.3d 1081, 1085 (¶ 12) (Miss. 2009). The subject matter of the present matter is malicious prosecution.

¶ 11. To succeed bn a claim- for malicious prosecution, a plaintiff must prove, by a preponderance of the evidence, six elements: (1) the institution of a proceeding; (2) by, or at the insistence of, the defendant; (3) the termination of such proceeding in the plaintiffs favor; (4) malice in instituting the proceeding; (5). want of probable cause for the proceeding;. and (6) the suffering of the injury or damage as a result of the prosecution. Miles v. Paul Moak of Ridgeland Inc., 113 So.3d 580, 585 (¶ 10) (Miss. Ct. App. 2012). Thus, the subject matter in the present dispute is the actions of Ovella, whereas the subject matter of the motions in the federal case— sanctions under Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927—was the conduct of Ovella’s lawyers in pursuing those claims in federal court,

f 12. Therefore, while there is not Mississippi caselaw directly on point, other courts have held that Rule 11 and the tort of malicious prosecution “differ in their nature, the elements of the claims, and the potential remedies.” Cohen v. Lupo, 927 F.2d 363, 365 (8th Cir. 1991). Because these are two separate and distinct actions, it has become well recognized that the grant or denial of a Rule 11 motion does not serve as res judicata for a" subsequently filed claim for malicious prosecution. See Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1196 (3d Cir. 1993) (holding “the denial of a Rule 11 .motion does not foreclose the assertion of a subsequent malicious prosecution suit”); see also In re Southmark Corp., 163 F.3d 925, 934-35 (5th Cir. 1999) (citing Port Drum Co. v. Umphrey, 852 F.2d 148, 150 (5th Cir. 1988) (holding “[i]f Rule 11 did expand substantive rights, it would be invalid under {he Enabling Act” because Rule ll’s purpose is to regulate procedure rather than create a new substantive right or an independent cause of action)). Even more authoritative is the advisory committee note to Rule 11, which specifically states that “it should be noted that Rule 11 does not preclude a party from initiating an independent action for malicious prosecution or abuse of process.” Fed. R. Civ. P. 11 advisory committee’s note to 1993 amendment (emphasis added). As such, we find that the Donaldsons’ malicious-prosecution claims encompass both a different subject matter and cause of action than the motion for Rule 11 sanctions. Therefore, res judicata cannot apply as two of the doctrine’s five identities are not satisfied.

¶13. In addition, res judicata cannot'apply to the Donaldsons’ claims as the federal court did not issue a final judgment on the merits. See Gibson, 186 So.3d at 844 (¶ 17). For a factual issue to be precluded, there must have been an actual adjudication of the issue followed by a full and fair opportunity to litigate the issue. Carmichael, 17 So.3d at 1091 (¶ 16). From the record before this Court, there is no evidence that the federal district court adjudicated whether Ovella possessed probable cause when he sued the Donaldsons. Rather, the record reflects that the district court denied the Donaldsons’ Rule 11 motion on purely procedural grounds, as the district-court judge explicitly stated, “The [Donaldsons] have not shown that they complied with the safe harbor provision [of Rule 11(c)(2)], and their motion for sanctions under Rule 11 will be denied on that basis.” By denying the Donaldsons’ Rule 11 motion for sanctions on procedural grounds, the federal district court never addressed the merits of the Rule 11 motion;

¶ 14. In the same vein, the federal district court’s denial of the Donaldsons’ 28 U.S.C. § 1927 claim related to actions taken by Ovella’s attorneys in the prosecution of the case, and in particular, sought costs and attorney’s fees. Regarding this claim, the federal district judge stated, “The relevant inquiry is whether the claims were at least colorable at the time of the [lawyers’] signing of the complaint.” Again, however, the Donaldsons’ section 1927 claims were against Ovella’s attorneys; in the.present action, the Donaldsons’ malicious-prosecution claims relate only to Ovella. As such, the resolution of the Donaldsons’ section 1927 claims has no bearing on the merits of the Donaldsons’ malicious-prosecutions claims under review by this Court. . .

¶ 15. In sum, to adjudicáte whether Ov-ella possessed probable cause would have required the federal"district court to go beyond the elements necessary in determining whether Rule 11 sanctions were proper. To reiterate, this is because the procedural device" that is Rule 11 and the substantive tort of malicious prosecution “differ in their nature, the elements of the claims, and the potential remedies.” Cohen, 927 F.2d at 365. Therefore, as the advisory committee note to Rule 11 confirms, a Rule 11 adjudication does not bar a subsequent maliciousrprosecution action. Fed. R. Civ. P. 11 advisory committee’s note to 1993 amendment; see also Cohen, 927 F.2d at 365 (holding Rule 11. adjudication “did not decide [whether the complaint] was filed with[] probable cause, whether [the plaintiffs] acted with malice, or the amount of damages [the defendant] suffered as a result of [the plaintiffs’] misconduct. Those inquiries are irrelevant under Rule 11, but are the sum and substance of the tort of malicious prosecution.”). Thus, we find that the Donaldsons’ claims are not barred by the doctrine of res judicata as the five essential identities of the doctrine have not been satisfied.

B. Collateral Estoppel

¶ 16. “The doctrine of collateral estoppel—often considered the cousin of res judicata—serves a ‘dual purpose’ and ‘protects litigants from the burden of re-litigating an identical issue with the same party or his privy’ and ‘promotes judicial economy by preventing heedless litigation.’” Gibson, 186 So.3d at 845 (¶ 21) (quoting Mayor & Bd. of Aldermen, City of Ocean Springs, Miss. v. Homebuilders Ass’n of Miss. Inc., 932 So.2d 44, 59 (¶ 61) (Miss. 2006)). Collateral estoppel precludes “relitigating a specific issue; which was: (1) actually litigated in the former action; (2) determined by the former action; and (3) essential to the judgment in the former action.” Id. (citing Stutts v. Stutts, 529 So.2d 177, 179 (Miss. 1988)). Collateral estoppel, however, is distinguished from res judicata in that it applies only to those issues “actually litigated and not to those issues which merely could have been, litigated in the prior suit.” Id. Finally, our supreme court has held that both doctrines of res judicata and collateral estoppel, “even if found to be permissible, are not inflexible commands which must be brutally enforced in all cases.” Id. (internal quotations omitted).

¶ 17. In granting Ovella’s motion for summary judgment,-the circuit court held the Donaldsons’ claims were barred by collateral estoppel “since their individual counter-claims were dismissed as a matter of law[, and] [t]he Donaldsons cannot complain of malicious prosecution since they themselves lost the very same claims by counter-claim/third-party complaint that they allege Ovella maliciously prosecuted.” For reasons similar to those discussed concerning res judicata, however, we hold that collateral estoppel cannot apply. Simply put, all the elements of collateral estoppel are not satisfied.

¶ 18. As discussed above, the merits of whether Ovella possessed probable cause or malice in the institution of the federal action was not actually litigated in the former action, was not determined by the former action, and therefore, could not have been essential to the judgment. See Gibson, 186 So.3d at 846 (¶ 23). For these reasons, this Court finds that neither res judicata nor collateral estoppel precludes the Donaldsons’ malicious-prosecution claims in the present matter.

C. Judicial Estoppel

¶ 19. “Judicial estoppel is designed to protect the judicial system and applies where -intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.’” Id. at (¶ 24) (quoting Kirk v. Pope, 973 So.2d 981, 991 (¶ 31) (Miss. 2007)). Judicial estoppel arises “when one party asserts a position contrary to one taken in a prior litigation,” and “precludes a party from asserting a position, benefitting from that position, and then, when it becomes more convenient. or profitable, retreating from that position later in the litigation.” Id. (internal citations omitted).

¶20. The elements necessary to demonstrate judicial estoppel are: (1) the position must be clearly inconsistent with one taken during previous litigation; (2) the court must have accepted and relied on the previous position; and (3) the party must not have inadvertently taken the inconsistent position. Id. at (¶ 25). The doctrine shall not apply, however, where a party does not benefit from the assertion of a prior position. Id. Reviewing the record before us, we find that judicial estop-pel does not apply in the present matter.

¶ 21. The circuit court- held that the Donaldsons’ claims were barred under judicial estoppel because the Donaldsons had “chang[ed] their positions” by virtue of the “corporate shield [being] waived in both matters.” Thus, the circuit court concluded the Donaldsons' had taken inconsistent positions by asserting individual counterclaims in the federal action against Ovella, but later asserting the “corporate shield” defense in the present action. We respectfully disagree with this characterization by the circuit court, as the corporate-shield defense is neither an affirmative defense, nor was it waived by the Donaldsons in either action.

¶ 22. In the original federal-court action, Ovella sued B & C as well as the Donald-sons individually. In their answers to Ovella’s federal court complaint, the Donald-sons alleged that they “were acting in the course and scope of their employment with B & C Construction, LLC,” and in addition, that Ovella had pled “no facts or allegations justifying the claims against the individual defendants.” In the present malicious-prosecution action, the Donald-sons allege that Ovella’s claims were instituted against them “without probable "cause and for malicious purposes including harass[ment] and coercion] causing [them] financial hardship, and retaliating against [them] for actions taken by others.” We find the Donaldsons’ position in the federal case to be wholly consistent with their position in the present matter. As such, the first prong of the judicial-estoppel framework is not satisfied.

¶ 23. Ovella argues, however, that the corporate-shield defense is an affirmative defense, and must have been affirmatively pled by the Donaldsons. Ovella further argues that by asserting individual counterclaims in the federal action, the Donald-sons waived the corporate-shield defense, and thus, cannot assert the corporate shield here, thereby adopting an inconsistent position than that in the federal action. We find this argument without merit, as neither Federal Rule of Civil Procedure 8(c)(1), nor Mississippi Rule of Civil Procedure 8(c), delineates the “corporate shield” as an affirmative defense. Furthermore, nothing in the record indicates that Ovella affirmatively pled any grounds showing his intention to pierce the corporate veil, or that the Donaldsons? actions were-taken outside or beyond the scope of their authority as officers and members of B & C. See Powertrain Inc. v. Ma, 640 Fed.Appx. 263, 266 (5th Cir. 2016) (holding “[corporate veil claims are analyzed under state law”); see also Can. Nat’l Ry. Co. v. Waltman, 94 So.3d 1111, 1116 (¶ 9) (Miss. 2012) (holding “in order to make a prima facie case of jurisdiction, the plaintiff must make sufficiently particularized allegations demonstrating the applicability of the piercing doctrine to the facts of the case”).

¶24. As the first prong of the judicial-, estoppel framework cannot be satisfied, we find the latter two prongs of the doctrine are therefore inapplicable. Ovella did not properly plead or provide specific allegations regarding his intention to pierce B & C’s corporate veil, and the Donaldsons did not waive the corporate-shield' defense in either the federal action or the present matter. As we find the Donaldsons have not adopted an inconsistent position, we likewise find that the Donaldsons have not benefitted from their-prior position, and therefore, their claims are not barred by judicial estoppel. See Gibson, 186 So.3d at 846-47 (¶¶ 25, 29) (holding that the doctrine of judicial estoppel cannot apply where- a party -does not benefit from- a prior position). Thus, reviewing the record anew, this Court finds that the circuit court erred in barring the Donaldsons’ malicious-prosecution claims under the doctrines of res judicata, collateral- estoppel, and judicial estoppel.

II. Genuine Issues of Material Fact Exist as to Whether Ovella Possessed Probable Cause and Malice

¶25. As we find--that the eiréuit court erred in granting Ovella’s motion for summary judgment on procedural grounds, we also find the existence of genuine disputes regarding material facts related to the merits of the Donaldsons’ malicious-prosecution claims. In particular, we find that the circuit court erred in finding there is no genuine dispute as to any material fact regarding whether Ovella possessed probable cause and malice in the assertion of his federal claims against the Donaldsons individually.

A. Probable Cause

¶ 26. Under the tort of malicious prosecution, “[p]robable cause is determined from the facts apparent to the observer when prosecution is initiated.” Miles, 113 So.3d at 585 (¶ 11). To establish “probable cause requires the concurrence of (1) a subjective element—an honest belief in the guilt of the person accused, and (2) an objective . element—reasonable grounds for such beliefs,” Id. Regarding the element of probable cause, the circuit found .that probable cause was evidenced by (1) the denial of sanctions; (2) Ovella’s claims surviving two separate motions for summary judgment; . and (3) Ovella’s claims for negligence, misrepresentation, breach of warranty, and breach of contract were all submitted to a jury, and survived a motion for a judgment as a matter of law. Reviewing the evidence in the light most favorable to the. Donaldsons, however, we find the circuit court’s reliance on these aspects misplaced, and therefore, erroneous.

¶ 27. As discussed above, the denial of sanctions by the district-court judge under Federal Rule 11 and 28 U.S.C. § 1927 did not address the merits of whether Ovella possessed probable cause or malice in the initiation of his federal action. See Cohen, 927 F.2d at 365 (holding Rule 11 adjudication “did not decide [whether the complaint] was filed with[] probable cause, [or] whether [the plaintiffs] acted with malice .... Those inquiries are irrelevant under Rule 11, but are the sum and substance of the tort of malicious prosecution.”). In- addition, the two motions for summary.judgment that the circuit court relied upon had no relation to whether Ovella possessed probable cause and malice in the federal action. Rather, as the district-court judge pointed out in the record, the motions for summary judgment related, to “alleged building code violations” and Ovella’s “duty to mitigate [his] damages.” Finally, the fact that Ovella had certain claims submitted to the jury, as well as survived a motion for a judgment as a matter of law, is irrelevant to the present action. These claims pertained directly to liability on the part of B & C—not,the Dpnaldsons individually. This is further evidenced by the district court’s dismissal of all claims by Ovella against the Donaldsons individually, stating there was, “insufficient evidence to -support [Ov-ella’s] claims against the individual [defendants.” Thus, we find that the circuit court erred in relying on these components as undisputed evidence that. Ovella possessed sufficient probable cause.

¶ 28. Moreover, the record reflects conflicting testimony regarding whether- Ovel-la’s house would be “sway proof’ or “sway resistant,” as well as the size and .type of columns that would be used to support Ovella’s home. Ovella testified that Colie and Coby represented to him that Ovella’s home would be sway proof, meaning his home would not sway or move in the wind. Colie and Coby testified, however, that they informed Ovella otherwise—that Ovella would not experience excessive movement in- the wind, thereby - making his home sway resistant, rather than - sway proof. In addition, Ovella also testified that Colie and Coby represented to him that his home would be built on 12" - x 12" wooden columns. While 12" x 12" columns were originally agreed upon by Ovella and B & C, Colie and Coby contested this testimony by testifying themselves that Ovella directed B & C to alter the columns to be 10" x 10", based upon a differently styled home Ovella had been shown by B & C. On cross-examination, Ovella admitted he had ordered B & C to make the changes, and moreover, that he had been advised by an engineer any house built on stilts was subject to some movement in the wind.

¶ 29. Furthermore, regarding whether Ovella’s house swayed excessively, Ovella neither requested nor conducted any investigation by an engineer prior to suing B & C and the Donaldsons individually in federal court. “Where a reasonable person would investigate further prior to instituting a proceeding, the failure to do so indicates a lack of probable cause.” Junior Food Stores Inc. v. Rice, 671 So.2d 67, 74 (Miss. 1996). We find this fact to weigh against the circuit court’s finding that, as a matter of law, Ovella possessed probable cause. Furthermore, when facts are in dispute, such as is the case regarding the conflicting testimony by Ovella, Colie, and Coby, probable cause becomes a jury issue. See Moon v. Condere Corp., 690 So.2d 1191, 1196 (Miss. 1997). As such, we find there is a genuine dispute as to material facts regarding whether Ovella possessed probable cause (i.e., an honest belief and reasonable , grounds for such a belief). See Miles, 113 So.3d at 585 (¶ 11).

B;'. Malice

-¶30. Next, 'to determine whether Ovella acted with malice, Mississippi courts look to a party’s subjective state- of mind. Nassar v. Concordia Rod & Gun Club, Inc., 682 So.2d 1035, 1042 (Miss. 1996) (citing Owens v. Kroger Co., 430 So.2d 843, 846 (Miss. 1983)). In an effort to define malice, the supreme court has said that the term “malice” in the law of malicious prosecution; is used in an artificial and legal sense and applied to prosecution instituted primarily-for some purpose other than that of bringing an offender to justice. Benjamin v. Hooper Elec. Supply Co., 568 So.2d 1182, 1191 (Miss. 1990); Owens, 430 So.2d at 846. Malice in the artificial and legal sense does not refer to mean‘or evil intent as a layman might ordinarily think. The determination of malice is a question of fact to be determined by the jury unless only one conclusion may reasonably be drawn from the evidence. Malice may be and usually is shown by circumstantial evidence. See Benjamin, 568 So.2d at 1191; see also Strong v. Nicholson, 580 So.2d 1288, 1293 (Miss. 1991). Moreover, absence of probable cause for the prosecution, is circumstantial evidence of malice. Trilogy Commc’n Inc. v. Times Fiber Commc’n Inc., 47 F.Supp.2d 774, 780-81 (S.D. Miss. 1998). Finally, malice may be inferred-from-a finding that the defendant acted in reckless disregard of the other person’s rights. Brown v. United States, 653 F.2d 196, 199 (5th Cir. 1981), cert. denied 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982).

¶31. Applying these- principles to the facts -in the record before us, we find there are genuine disputes as to material facts .with respect to whether Ovella possessed malice in the. institution of his federal claims against the Donaldsons individually. As absence, or the possible absence,' of probable cause for the prosecution is circumstantial evidence of malice, we find there is a genuine dispute as to Ovella’s state of mind at the time of his filing the federal action. See Trilogy Commc’n, 47 F.Supp.2d at 780-81. Moreover, we find that summary judgement was improper regarding this element of the Donaldsons’ malicious-prosecution claims as this element is generally a question for the jury. See id. Lastly, we find that a reasonable jury could infer that Ovella acted with malice by recklessly initiating the federal action against the Donaldsons individually without conducting any pre-suit investigation regarding the swaying of his home. See Brown, 653 F.2d at 199. As such, we find that the Donaldsons produced significant probative evidence of a genuine issue for trial regarding probable cause and malice. Price v. Purdue Pharma Co., 920 So.2d 479, 485 (¶ 16) (Miss. 2006).

CONCLUSION

¶32. Reviewing the record anew, this Court finds that genuine disputes- of facts material to the outcome of this case clearly exist and should be left to resolution by the factfinder;'After considering the evidence in the light most favorable to the Donaldsons, we find that the circuit court erred in granting Ovella’s motion for summary judgment on procedural grounds, as well as in its findings regarding the merits of the Donaldsons’ malicious-prosecution claims. Therefore, we must reverse the judgment of the circuit court, and remand the case for further proceedings consistent with the findings of this opinion.

¶ 33. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS AP^ PEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON AND GREENLEE, JJ„ CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., NOT PARTICIPATING.

      . These claims and counterclaims are what formed the basis for the Donaldsons’ malicious-prosecution claims filed in the circuit court, which instigated the present matter before this Court. In addition, the record shows no involvement by Beth other than being a member of B & C.


source: Caselaw Access Project

author: FAIR, P.J.,

license: Public Domain

text:
    Andrew Acie ADAMS a/k/a Andrew Adams Appellant v. STATE of Mississippi Appellee
    NO. 2015-KA-01703-COA
    Court of Appeals of Mississippi.
    01/24/2017
    Rehearing Denied May 23, 2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: PHILLIP BROADHEAD
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE
    BEFORE FAIR, P.J., WILSON AND GREENLEE, JJ.
   FAIR, P.J.,

FOR THE COURT:

¶ 1. Andrew Aeie Adams was spotted driving in Gulfport while there was a warrant out for his arrest. After pulling Adams over, the officers noticed a loaded magazine in the driver’s side door. Adams’s wife, who was in- the .passenger’s seat, was found to have-been sitting on a pistol, and a search of the vehicle’s trunk revealed a ,22-caliber rifle. Adams confessed to owning the rifle, but he claimed to know nothing of the pistol.

¶ 2, Adams was tried on two counts of possession of a weapon by a- convicted felon. After the State presented its case, the trial court directed a verdict of acquittal for possession of the pistol. Adams testified in his own defense that he had lied about his owning the rifle in order to protect his wife. The jury convicted him anyway, and he appeals. We find no error and affirm.

DISCUSSION

1. Suppression of Confession

¶3.-In- his first issue on appeal, Adams contends that the Harrison County Circuit Court erred in not suppressing his confession. Adams alleges that the confession was induced by an officer falsely stating during the arrest that Adams’s wife was a convicted felon who could not legally possess the rifle, so Adams claimed ownership of it to protect his wife.

¶4’. ít is apparent that this claim is procedurally barred because it was not raised in the trial court. Adams presented numerous pretrial motions, but none of them challenged the voluntariness of his confession. Instead, Adams sought to have parts of the arrest and interview recordings redacted to prevent the jury from being exposed to various prejudicial statements, relief that he was largely granted. While the trial- judge did observe that Adams’s confession was voluntary, the failure -to make this- argument and present any evidence in support procedurally bars this issue on appeal. See, e.g., Williams v. State, 994 So.2d 821, 828 (¶ 24) (Miss. Ct. App. 2008).

¶5. Moreover, this claim appears to have no evidentiary support-in the record. Adams did testify (in his own defense, at trial) that he had falsely claimed to have owned the riñe to prevent his wife from being arrested. But on cross-examination, Adams admitted he knew his wife was riot a convicted felon. He claimed instead that he was worried she would be arrested for possession of a stolen firearm since she had previously been arrested for that offense, though not convicted. Adams said he was afraid the rifle whs stolen “because [his wife) had got caught with another stolen weapon before and [he did not] know where she gets the weapons from.”

¶ 6. This issue is procedurally barred and lacks evidentiary support in the record.

2. Sufficiency of the Evidence

¶7. Adams next challenges the sufficiency of the evidence supporting his conviction. In evaluating the sufficiency of the evidence, we must decide whether it allows a jury to find “beyond a reasonable doubt that [the]' accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005). ,“[T]he 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.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 8. Since Adams was never seen in actual, physical possession of the rifle, he was prosecuted under a theory of constructive possession. “Constructive possession allows the prosecution to establish possession of contraband when evidence of actual possession is absent. Constructive possession is established by evidence showing that the contraband was under the dominion and control of the defendant.” Roberson v. State, 595 So.2d 1310, 1319 (Miss. 1992). “[T]here must be sufficient facts to warrant a finding that the defendant was aware of the presence and character. of the particular [contraband] and was intentionally and consciously in possession of it.” Glidden v. State, 74 So.3d 342, 345-46 (¶ 12) (Miss. 2011) (citations omitted).

¶ 9. Here, .the rifle was found in the trunk of the vehicle Adams was driving, and a loaded magazine that fit the rifle was in the driver’s side door. Adams further confessed that, the rifle was his, in some detail, explaining how he had bought it from someone, for sixty-five dollars and how he hoped to .sell it to his uncle for more. He also stated that he liked guns and enjoyed possessing them.

•¶ 10. On appeal, Adams contends that the evidence was insufficient because the vehicle belonged to his wife. He notes that the owner (or possessor), of a vehicle is presumed to be in constructive possession of the. things found, inside. Pool v. State, 483 So.2d 331, 336 (Miss. 1986). The presumption, however, can be rebutted if it is shown that the vehicle was not under the exclusive control of the owner., Id. at 336-37. Moreover, the., presumption is simply that the owner is in possession of the items inside; it does not preclude the items from also being in the joint possession of others. See Dixon v. State, 953 So.2d 1108, 1112 (¶ 9) (Miss. 2007) (“Possession of [contraband] may be actual or constructive, individual or joint.”).

¶ 11. Adams also contends that proximity is an element of constructive possession and that his conviction fails for a want of proximity to the weapon. He cites to Curry v. State, 249 So.2d 414, 416 (Miss. 1971), where the Mississippi Supreme Court had observed that “[p]roximity is usually an essential element [of constructive possession], but by itself is not adequate in the absence of other incriminating circumstances.” Setting aside the factual futility of Adams’s argument (the rifle was in the trunk of the vehicle Adams was driving when he was arrested), the point of this oft-repeated maxim is that proximity alone is not sufficient to prove constructive possession. The observation that proximity is necessary in “usual” cases is dicta about the practical reality of proving constructive possession. Proximity is not literally an element of constructive possession.

If 12. Finally, Adams argues that his confession is inadequate evidence of possession because he spoke about his ownership of the gun rathér than his possession of it at the relevant time. While we agree that there is a distinction between ownership and possession, an acknowledgment of ownership is clearly an “incriminating circumstance.” Curry, 249 So.2d at 416. That, along with Adams’s proximity to the weapon, his wife’s ownership of the car and his immediate control thereof, and the presence of the loaded magazine (which fit the rifle) in the driver’s door while Adams was operating the vehicle, is more than sufficient evidence to sustain a conviction under the theory of constructive possession.

3. Weight of the Evidence

¶ 13. Adams also argues that the verdict was against the overwhelming weight of the evidence. A new trial based on the weight of the evidence should be granted “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844 (¶ 18) (citation omitted). “[T]he evidence must be viewed in the light most favorable to the verdict[.]” Jenkins v. State, 131 So.3d 544, 551 (1123) (Miss. 2013). And the motion for a new trial is entrusted to the circuit judge, who had a firsthand view of the trial. “[R]eversal is warranted only if the trial court abused its discretion in denying [the] motion for a new trial.” Waits v. State, 119 So.3d 1024, 1028 (¶ 13) (Miss. 2013).

¶ 14. Adams contends that the evidence was overwhelming that the rifle actually belonged to his wife, because it was found in her vehicle. He repeats many of the same arguments regarding the presumptions of constructive possession that we addressed in the prior issue. We find this contention meritless. The vehicle did belong to Adams’s wife, but he was driving it, a loaded magazine to the rifle was found in the driver’s door, and Adams confessed that the rifle was his. The jury was the judge of the credibility of Adams’s confession and his trial testimony. Hartfield v. State, 161 So.3d 125, 140 (¶ 23) (Miss. 2015). It found Adams guilty, and we cannot say that the verdict was against the overwhelming weight of the evidence.

4. Jury Instruction

¶ 15. Finally, Adams contends that the trial court erred in refusing instruction D-6, which would have instructed the jury on the elements of constructive possession. Instead, the court gave S-6, which was also a constructive possession instruction:

Possession, as that term is used in this case, may be actual or constructive. A person has actual possession when he or she knowingly has direct, immediate, and exclusive physical control over the thing or object. A person has constructive possession when he or she lacks actual possession of the thing or object but knowingly has both the power and the .intention, at a given time, to exercise control or dominion over the thing or object, either directly or through another person.

Adams contends that D-6 was “more detailed”, and would have required the State to prove “additional incriminating circumstances other than mere proximity.” Adams also complains that the instruction allowed the jury to find that he constructively possessed the rifle “through another person.”

¶ 16. Instruction S-6, which was given, was identical to the instruction approved of by the Mississippi Supreme Court in Watkins v. State, 101 So.3d 628, 635-36 (¶¶ 23-25) (Miss. 2012). In Floyd v. State, 155 So.3d 883, 887-88 (¶¶ 10-11) (Miss. Ct. App. 2014), this Court also approved of the instruction, noting that it was a model jury instruction. It is axiomatic that jury instructions are entrusted to the sound discretion of the trial court, and that “[w]hen read together, if the jury instructions state the law of the case and create no injustice, then no reversible error will be found.” Watkins, 101 So.3d at 635 (¶ 22) (citations omitted). Instruction S-6 was a correct statement of the law and sufficiently instructed the jury on the elements of constructive possession.

¶ 17. Also, this Court has specifically rejected the argument regarding the other-incriminating-circumstances languagé: '

We recognize D-l contains language from Curry that is-not contained in C-2, specifically that: “Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.” See Curry, 249 So.2d at 416. But this court has previously found this language is not required when instructing a jury on constructive possession. In Bates v. State, 952 So.2d 320, 323-25 (¶¶ 10-18) (Miss. Ct. App. 2007), the defendant made an argument similar to Mosley’s—that the jury instructions “failed to mention that proximity to the drug by itself is not- enough to convict a defendant unless incriminating circumstances are also proven.” Id. at 324 (¶ 12) (citing Curry, 249 So.2d at 416). This court found that it was “unnecessary to state that proximity alone is insufficient, because the instructions clearly stated all of the elements required.” Id. at (¶ 14). Here, C-2 instructed that the jury had to find beyond a reasonable doubt that (1) Mosley was aware of the presence and character of the drugs and (2) Mosley intentionally and consciously possessed the 'drugs— which, in the absence of actual possession, may be shown by establishing the drugs were in Mosley’s dominion and control. Smith v. State, 839 So.2d 489, 497 (¶ 21) (Miss. 2003) (citing Curry, 249 So.2d at 416) (“The State had to prove that Smith was aware of the cocaine and intentionally, but not necessarily physically, possessed it. Constructive possession may be shown by establishing dominion or control.”). Because C-2 clearly stated the required elements of constructive possession, the- “proximity” language in D-1 was unnecessary.

Mosley v. State, 89 So.3d 41, 49 (¶ 26) (Miss. Ct. App. 2011). We further noted that “the absence of a defendant’s exclusive ownership or possession of the premises where the [contraband was] found do[es] not add elements to constructive possession.” Id. at (¶ 27).

¶ 18. As to Adams’s concern with the inclusion of the language that constructive possession may be “either directly or through another person,” he presents no authority showing this to be an incorrect statement of the law. As noted previously, the language has been quoted with approval in several decisions. by our appellate courts. See Watkins, 101 So.3d at 636 (¶ 23); Floyd, 155 So.3d at 887-88 (¶¶ 10-11). And it appears to be widely or even universally accepted by other courts. See, e.g., United States v. Berrios-Bonilla, 822 F.3d 25, 29 (1st Cir. 2016); United States v. Vichitvongsa, 819 F.3d 260, 276 (6th Cir. 2016); State v. Robinson, 400 S.W.3d 529, 534 (Tenn. 2013); C.B.D. v. State, 90 So.3d 227, 246 (Ala. Cr. App. 2011).

¶ 19. We find no merit to this issue.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY, FIRST JUDICIAL DISTRICT, OF CONVICTION OF POSSESSION OF A WEAPON BY A CONVICTED FELON AND SENTENCE AS A HABITUAL OFFENDER OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, WITH THE SENTENCE TO RUN CONSECUTIVELY TO THE SENTENCE IN CAUSE NUMBER B2401-14-498, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES; ISHEE, CARLTON, WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT . PARTICIPATING.:

      . Phillip W. Broadhead, clinical professor and director of the University of Mississippi School of Law Criminal Appeals Clinic, was appointed as Adams's" appellate counsel; Third-year law students under Professor Broadhead’s supervision were appointed as special counsel pursuant to Mississippi Code Annotated section 73-3-207 (Rev. 2012). Jay Clay and Derek T„ Cantrell assisted in the preparation of Adams’s Briefs, and Adreain Reynolds and Darian R. Etienne presented oral argument.

      . Adams was testifying about what he knew at the present time (the time of trial), but he never suggested he did not know it at the relevant time as well. ■ -


author: LEE, C.J.,

text:
    Sidney HUMBLES a/k/a Sidney Kareem Humbles a/k/a Sidney K. Humbles Appellant v. STATE of Mississippi Appellee
    NO. 2015-KA-01832-COA
    Court of Appeals of Mississippi.
    01/24/2017
    Rehearing, Denied May 9, 2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T, HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD
    DISTRICT ATTORNEY: TOM KES-LER
    BEFORE LEE, C.J., BARNES AND FAIR, JJ,
   LEE, C.J.,

FOR THE COURT:

¶ 1. In this appeal we must decide: (1) whether the -trial court erred when it denied Sidney Humbles’s motion to sever Count IV from Counts I—III; (2) whether the trial court erred when it declined- to dismiss the indictment due to an alleged speedy-trial violation; and (3) whether Counts II and III of the indictment were fatally-defective.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 18, 2011, a man assaulted and robbed' Mina Paul at Fairway Grocery, a convenience ..store owned by Mina and located in Jackson, Mississippi. Mina testified that she recognized the man as both a customer and the “donut man” who had been selling donuts in front of her store for approximately a month. Mina stated that-, on a previous occasion she had bought a donut from the man, though she did not on this particular day. Mina testified that on the day of the robbery, the man attempted to sell donuts outside of Mina’s store for some time prior to entering the store, jumping over the counter, assaulting Mina, and robbing her of $400.

¶3. On September 20, 2011, two days later, about half a mile from Mina’s store, a man rang the doorbell of Paul and Mel-vern Mickell’s home and offered to sell Melvern some donuts. According to Mel-vern, when she declined, the man forced his way into the home, pushing Melvern down. Melvern yelled out for her husband, Paul, who testified that he heard something hit the floor and Melvern yelling. He then jumped out of bed, grabbed his gun, and went to check on Melvern. When Paul saw the man, he began shooting. At some point, the man took Paul’s gun and pointed it at Melvern, threatening to shoot her. The man demanded money and pointed the gun at Paul, who led him down the hallway to the bedroom to get Melvern’s purse. In order to dispatch the police, Paul pressed an alert button in his bedroom and then gave the man the purse. Once he realized the police had been called, the man left the Mickells’ home, taking with him the gun and the purse. Police later recovered Mel-vern’s purse, which was missing a twenty-dollar bill and a silver dollar. Paul’s handgun was recovered across the street from the home.

¶ 4. Felix Hodge, an officer with the Jackson Police Department, investigated the robberies at Fairway Grocery and the Mickells’ home. Paul informed Officer Hodge that he may have shot the man who robbed them. Officers searched local hospitals for a male patient with a gunshot wound and located Humbles at University Medical Center. Officer Hodge testified that both Mina and the Mickells stated they had been robbed by a “donut man,” and all selected Humbles from a photo lineup. Officer Hodge then interviewed Humbles and inquired about the two robberies. Humbles admitted, in separate statements, to having committed both of the robberies. Humbles was subsequently arrested.

¶ 5. On October 19, 2011, Humbles’s parole was revoked, and he was taken into the custody of Mississippi Department of Corrections to serve the suspended portion of his prior sentence. Humbles was then indicted in December 2011. The indictment charged Humbles with the following: Count I, armed robbery committed on September 20, 2011, against the Mickells; Count II, felon in possession of a firearm; Count III, simple assault against Melvern; and Count IV, robbery committed on September 18, 2011, against Mina. On January 18, 2012, Humbles filed a motion demanding a speedy trial. He was served with his indictment on June 19, 2014, and arraigned on September 15, 2014. Humbles’s trial began April 7, 2015.

¶ 6. During pretrial motions, Humbles moved to sever Count IV from Counts I, II, and III. Humbles also moved to dismiss the charges for speedy-trial violations. Both motions were denied by the trial court. At trial, Humbles was convicted on all four counts and sentenced to three life sentences as a habitual offender, and to six months for the simple assault. Humbles now appeals.

DISCUSSION

I. Motion to Sever

¶7. Humbles claims that the trial court erred when it declined to sever Count IV from' Counts I—III. We review the trial court’s rulings on issues of severance under an abuse-of-discretion standard. Williams v. State, 991 So.2d 593, 602 (¶ 31) (Miss. 2008) (citing Rushing v. State, 911 So.2d 526, 532 (¶ 12) (Miss. 2005)).

¶ 8. In Mississippi, multicount indictments can be tried together in the same court so long as “the acts or transactions are connected together as part of a common scheme or plan.” Rushing, 911 So.2d at 532 (¶ 13). Mississippi Code Annotated section 99-7-2 (Rev. 2015) provides that:

(1) Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.
(2) Where two (2) or more offenses are properly charged in separate counts of a single indictment, all such charges may be tried in a single proceeding.

¶ 9. The Mississippi Supreme Court has directed that when a defendant seeks to sever counts in an indictment, the State must make a prima facie showing that the offenses fall within the confines of the statute. Corley v. State, 584 So.2d 769, 772 (Miss. 1991). Once the State has met its burden, the defendant may rebut by showing the “offenses were separate and distinct acts or transactions.” Id. In making its determination, the trial court should consider the following Corley factors: “(1) whether the time period between the occurrences is insignificant; (2) whether the evidence proving each count would be admissible to prove each of the other counts; and (3) whether the crimes are interwoven.” Lomax v. State, 192 So.3d 975, 981 (¶ 31) (Miss. 2016) (citing Corley, 584 So.2d at 772). Finally, “[i]f this procedure is followed, [the appellate court] will defer to the trial court’s findings ....” Id.

¶ 10. Here, Humbles moved to. sever Count TV from Counts I—III. The trial court heard the motion the morning of trial, prior to the commencement of voir, dire, and outside the presence of any potential jurors. The State presented evidence showing that Humbles’s offenses were part of a common plan or scheme. Specifically, the State presented evidence that the same investigating officer would testify that: Humbles gained access to rob each victim under the guise of selling donuts; he targeted elderly female victims; the offenses occurred less than a half mile apart; and the offenses occurred just forty-two hours apart from each other. Humbles attempted to . rebut by arguing that: there was no evidence that he attempted to sell a donut to Mina on the day he robbed her; one count charged armed robbery while the other charged strong-armed robbery, and these constituted distinct crimes; and the location of the two robberies occurred two days apart in time and miles apart in location. Humbles also ar: gued that the similar elderly age of Mina and the Mickells was coincidental rather than part of a scheme.

1111. In ruling on the severance motion, the trial court properly set forth the applicable statute, section 99-7-2, and the controlling case, Corley. The trial court then went on to discuss the Corley factors. To fully address this issue, we refer to the record of the proceedings.

¶ 12. Considering the first prong of Corley—whether the time period is insignificant—the the trial court found that the two incidents occurred just “[forty-two] hours or so” apart and accurately noted that “there is no bright line test as to the amount of time.” As such, the trial court did not find the amount of time between the offenses to be significant. Addressing the second prong of Corley—whether the evidence proving each count would be admissible to prove the other counts—the trial court found that “the detective testified that [the] evidence consisted of statements of the defendant, [eyewitness] testimony of the ... alleged victims, as well as ,,. in one of the counts[ ] there was a separate witness or two.” The trial court found that some of the testimony would be admissible to prove the other counts—-including witness testimony of Humbles as “the donut man,” which leads into the third and final prong.

¶ 13. Considering the third prong of Cor-ley —whether the crimes are interwoven— the trial court found that in both crimes Humbles “allegedly] [made an] effort ... to' sell donuts to the victims”; that the “location[s] of the alleged crimes were close in proximityL] ,.. roughly half a mile [apart,]” and “that the victims were both elderly females .... ” The trial court ultimately found that “the evidence supports 'the State’s position that the ... actions of the defendant were part of the same common scheme or plan.” Finding that it lacked merit, the trial court denied Humbles’s motion to sever.

¶ 14. We find that the trial court followed the Corley procedure, and therefore “defer to the trial court’s findings.” Lo-max, 192 So.3d at 981 (¶ 31). We note, as both the trial court did and the caselaw demonstrates, that there is no bright-line test for applying each of the factors. Upon our review of the record, the evidence was sufficient for the trial court—looking at the totality of the circumstances—to find that Humbles’s offenses constituted a common plan or scheme. As such, we do not find that the trial court abused its discretion in denying Humbles’s motion to sever. This issue is without merit.

II. Speedy-Trial Violation

¶15. Humbles claims the trial court erred when it denied his motion to dismiss for failure to provide a speedy trial. Humbles claims he made a pro se motion prior to trial to dismiss for a speedy-trial violation, although the trial court noted it never received said motion. And there is not one in the record before us. The trial court, however, permitted Humbles—then through counsel—to argue his speedy-trial motion. The trial court denied Hurables’s motion, finding that “under Mississippi law, the statutory right to a speedy trial attaches at arraignment,” and only 204 days had elapsed between Humbles’s arraignment and trial.

¶ 16. In Mississippi, criminal defendants have a right to be “tried no later than two hundred seventy (270) days after the accused has been arraigned.” Miss. Code Ann. § 99-17-1 (Rev. 2015). Therefore, “unlike the constitutional right to a speedy trial[,] ... the statutory speedy[-]trial right attaches at arraignment.” Rowsey v. State, 188 So.3d 486, 496 (¶ 32) (Miss. 2015). In his appeal, Humbles asserts that his constitutional, right to a speedy trial was violated by “the inaction of the [S]tate to have him served with this indictment while in custody and for the case to move forward as required;”

¶ 17. At trial, Humbles only raised the issue of his statutory right to a speedy trial. Ah appellate' court “will not hold a trial court in error for issues not presented to it’ for consideration.” Flynt v. State, 183 So.3d 1, 14 (¶ 41) (Miss. 2015) (citing Moffett v. State, 49 So.3d 1073, 1101 (¶ 91) (Miss. 2010)). Though there is no record of Humbles’s pro se motion or record of the trial court’s denial order, the transcript reflects that only the statutory right was asserted and argued—with multiple references by both Humbles and the State to the “270 rule.”

¶ 18.. With .regard to Humbles’s constitutional speedy-trial claim, “the United States Supreme Court has stated that a formal indictment or information qr an arrest—[whichever] occurs first—triggers the constitutional right to a speedy trial.” Havard v. State, 94 So.3d 229, 237 (¶ 21) (Miss. 2012) (citing United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)). Here, Humbles’s arrest on September 22, 2011, triggered the right. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court set forth four factors that state courts must consider when analyzing speedy-trial issues: (1) length of delay; (2) reason for the delay; (3) defendant’s assertion of his .rights; and (4) prejudice to the defendant. Johnson v. State, 68 So.3d 1239, 1249 (¶ 41) (Miss. 2011) (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182). It is not necessary, however, for us to conduct this analysis in the instant case.

¶ 19. In Havard, the supreme court held: “BecausE [the defendant] did not first raise a speedy-trial claim with the trial court, we can decide the issue only if we find that [the defendant] has established a plain-error basis to justify appellate review.” Havard, 94 So.3d at 237 (¶ 22). “For the plain-error doctrine to apply, there must have been an error that resulted in a manifest miscarriage of justice or seriously affects the fairness, integrity[,] or public reputation of judicial proceedings.” Johnson v. State, 155 So.3d 733, 738 (Miss. 2014) (citations omitted). We find no such error.

¶ 20. Like the . defendant in Ha-vard, Humbles “seeks to leapfrog over the required plain-error analysis by making Barker]'s] [constitutional-analysis challenge.]” Havard, 94 So.3d at 237 (¶22) (internal quotation marks omitted). Humbles claims his defense was prejudiced by the 1,293 days that elapsed between his arrest and trial, impairing his ability to prepare an adequate defense of the charges he faced. But in fact, Humbles was well aware of the charges before him due to his arrest, indictment, and revocation of his parole. This was further evidenced by the public defender’s 2012 motion for discovery and request for a plea.offer. .Humbles’s claims amount to no more than those in Havard, where the defendant, “merely claim[ed] that his defense was prejudiced by the [delay] ,.. between his arrest and trial, ... and his defense to the charges was diminished by the delay, [and] nothing more.” Id, This was insufficient in Havard, and is likewise insufficient in the instant case. We apply the supreme court’s holding in Havard-. “We need more than just broad assertions made out of the clear blue, that have no support in the record. Accordingly, we find that [the defendant] hás failed to show plain error on appeal, and we hold that his constitutional speedy-trial claim remains procedurally barred.” Id. (internal citation and quotation marks omitted). Therefore, Humbles’s speedy-trial claim is without merit.

III. Defective Indictment

■¶ 21. For the first time on appeal, Humbles claims that -Counts II and III of the indictment were fatally defective for failure to specify a date. Issues raised for the first time on appeal are waived. Nuckolls v. State, 179 So.3d 1046, 1053 (¶ 27) (Miss. 2015) (citing Walker v. State, 913 So.2d 198, 217 (¶ 49) (Miss. 2005)). Humbles-acknowledges he never raised this issue at trial, but he now submits the issue is reviewable for plain error. Again, under plain-error review, an appellate court can, in its discretion, review issues not raised at trial, in order to “correet[] obvious instances of injustice or misapplied law.” Smith v. State, 986 So.2d 290, 294 (¶ 10) (Miss. 2008). Humbles argues that the missing dates-on Counts II and III violate his fundamental due-process right to be notified of the charges;

¶ 22. Indeed, an indictment must contain the essential elements of the offenses charged in order to provide the defendant with sufficient notice of the charges against him. Townsend v. State, 188 So.3d 616, 620 (¶ 13) (Miss. Ct. App. 2016) (citihg Gilmer v. State, 955 So.2d 829, 836-37 (¶ 24) (Miss. 2007)). But “an allegation of the date of the offense is not an essential element of the offense charged in the indictment.” Mosby v. State, 134 So.3d 850, 853 (¶ 11) (Miss. Ct. App. 2014).

¶23. Here, Count I of the indictment charged Humbles with armed robbery of the Mickells on September 20, 2011. Counts II and III, respectively, charged Humbles with being a felon in possession and simple assault, with no alleged date for either, but still specified the Mickells as the victims. And Count IV charged Humbles with robbery of Mina on September 18, 2011, It is clear from the nature and descriptions of Counts II and III that the offenses alleged therein occurred on the same date, as a part of the same criminal conduct, and against the same victims as indicated in Count I. The fact that Humbles sought to sever Count IV from Counts I—III, largely because the two incidents occurred- on separate dates, indicates an understanding that the offenses charged -in Counts II and III corresponded with the date listed in Count I. As such, it is clear that Humbles received sufficient notice of the charges against him, and no injustice or misapplied law' is in need of correction. This issue is therefore without merit.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY, FIRST JUDICIAL DISTRICT, OF CONVICTION OF COUNT I, ARMED ROBBERY, AND SENTENCE OF LIFE IN PRISON WITHOUT PAROLE AS A HABITUAL OFFENDER; COUNT II, FELON IN POSSESSION OF A FIREARM, AND SENTENCE OF LIFE IN PRISON WITHOUT PAROLE AS A HABITUAL OFFENDER; COUNT III, SIMPLE ASSAULT, AND SENTENCE OF SIX MONTHS; AND COUNT IV, ROBBERY, AND SENTENCE OF LIFE IN PRISON WITHOUT PAROLE AS A HABITUAL OFFENDER, WITH ALL SENTENCES TO RUN CONCURRENTLY WITH ALL OTHER HINDS COUNTY SENTENCES, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


text:
    Brian WILLIAMS a/k/a Bryan Williams a/k/a Brian Andrew Williams, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-01911-COA
    Court of Appeals of Mississippi.
    01/24/2017
    Rehearing Denied May 23, 2017

      BRIAN WILLIAMS (PRO SE), ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. Brian Williams appeals the summary dismissal of his fourth motion for postconviction relief (PCR). Finding that Williams’s motion is both successive-writ barred and time-barred, and not excepted from the procedural bars, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Williams was indicted by a Sunflower County grand jury for various offenses arising from the commission of a robbery, Williams pled guilty to one count of armed robbery and one' count of aggravated assault. For each count, he was sentenced to eighteen years, with five years suspended and thirteen years to serve, and five years of postrelease supervision. The sentences were ordered to run concurrently.

¶ 3. Williams’s first PCR motion alleged speedy-trial violations and was denied by the trial court; we affirmed in Williams v. State, 98 So.3d 1090, 1093 (¶ 18) (Miss. Ct. App. 2012). His second PCR motion challenged the voluntariness of his guilty plea and alleged ineffective assistance of counsel, Finding no merit to his claims,, we again affirmed the trial court’s dismissal of his .PCR motion and also found his PCR motion was procedurally barred as a successive writ. Williams v. State, 110 So.3d 840, 845 (¶ 23) (Miss. Ct. App. 2013). In Williams’s third PCR motion, also dismissed by the trial court, he claimed the indictment was defective for failure to allege all the essential elements of armed robbery and aggravated assault and ineffective assistance of counsel for his attorney’s failure to challenge the defects. In Williams v. State 158 So.3d 1171, 1175 (¶ 14) (Miss. Ct. App. 2014), we affirmed the trial court’s dismissal of Williams’s thircj PCR motion, both on the merits and finding the motion procedurally barred as a successive writ.

¶ 4. Williams filed a fourth PCR motion. The trial court dismissed the motion as both time-barred and successive-writ barred. Williams now appeals, asserting that (1) the trial court erred by dismissing his PCR motion without reviewing the evidence he presented to support his claims; (2) the trial court" violated his Sixth Amendment right to due process by failing to advise him of his constitutional right to cross-examine adverse witnesses; (3) the evidence submitted by the State was insufficient as a matter of law to sustain a conviction; and (4) he received ineffective assistance of counsel.

STANDARD OF REVIEW

‘ ¶ 5. “When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s decision if it is clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review.” Thinnes v. State, 196 So.3d 204, 207-08 (¶ 10) (Miss. Ct. App. 2016) (quoting Carson v. State, 161 So.3d 153, 155 (¶ 2) (Miss. Ct. App. 2014)).

DISCUSSION

¶ 6. Under the Uniform Postconviction Collateral Relief Act (UPCCRA), “any order dismissing the petitioner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.” Miss. Code Ann. § 99-39-28(6) (Rev. 2016). However, a successive writ may be permitted if the movant can show that a statutory exception applies, Williams, 158 So.3d at 1173 (¶ 4). The UPCCRA also imposes a time-bar for PCR motions: “A motion for relief under this article’shall be made[,] ... in case of a guilty plea, within three (3) years after entry of the judgment of conviction.” Miss. Code Ann.§ 99-39-5 (Rev. 2015). “Errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA. But mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar.” Williams, 158 So.3d at 1173 (¶ 4) (citation omitted). This PCR motion is Williams’s fourth. And it was filed over three years from his conviction. Therefore, to survive both the successive-writ bar and time-bar, Williams bears the burden of showing he has met a statutory exception to these procedural bars. Id.

I.Defective Indictment

¶ 7. On appeal, Williams argues his motion survives any procedural bars because his indictment was defective in that it charged David Gardner, the victim, with the commission of the crimes. This is not so. Williams misrepresents the indictment. The indictment clearly states “That Brian Williams[,] ... in and upon David Gardner[,] did [commit armed robbery.]” This language clearly charges Williams as the wrongful actor, who committed armed robbery “in and upon” David Gardner—the victim. And while this Court has previously acknowledged that the indictment is grammatically imperfect, we found that it sufficiently charged Williams with all the elements of armed robbery. See Williams, 158 So.3d at 1174 (¶ 8). Williams’s attempt to ignore portions of the indictment naming himself as the perpetrator in efforts to misconstrue the indictment is disingenuous. i ’ .

II. Summary Dismissal

¶ 8. Williams also contends that the trial court erred when it summarily dismissed his fourth PCR motion without reviewing the evidence supporting his claim. The UPCCRA states that “[i]f it plainly appears from the face, of the motion, any annexed exhibits and the prior, proceedings in the case that the movant is not entitled to any relief, the judge- may make an order for its dismissal and cause the-petitioner to be notified.” Miss. Code Ann. § 99-39-11(2) (Rev. 2015). The trial court did just that.- It is plain-from the face of Williams’s motion that he is not entitled to' relief as his claims lack merit—notwithstanding that his claims have been considered by the trial court and this Court at least four times. The trial court, citing Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss. 2010), properly noted that “fundamental constitutional rights are exceptions from the procedural bars of the UPCCRA, [but] mere assertions of constitutional-rights violations do not suffice to overcome this bar.” The trial court found—and we agree—that Williams failed to do more than merely assert his constitutional rights had -been violated. And he did not point to any new evidence -or- meritorious .arguments that differ from his previous three PCR motions. We find no error by the-trial court.

III. Right to Cross-Examine Adverse Witnesses

, ¶ 9. Williams alleges the-trial court violated:his Sixth Amendment right to due process by failing to advise him of his constitutional right to cross-examine adverse witnesses- before it accepted his guilty pleas. It is true that a defendant must be told that a guilty plea involves a waiver of the right to confront adverse witnesses. Mosley v. State, 150 So.3d 127, 132 (¶ 17) (Miss. Ct. App. 2014).

¶ 10. The guilty-plea transcript shows that Williams understood that he had the right to trial by jury, the right to challenge adverse evidence presented at trial, and the right against self-incrimination. During his plea colloquy, Williams specifically acknowledged and waived his “right to be present and to challenge any evidence that comes in against [him] at trial.” Certainly this encompasses the right to cross-examine adverse witnesses.

¶ 11. Regardless, only fundamen-iai-constitutional-rights violations overcome the UPCCRA’s procedural bars. In Mississippi, “only four types of fundamental-rights have been expressly found to survive PCR procedural bars: (1) double jeopardy; (2) illegal sentence; (3) denial of due process at sentencing; and (4) ex post facto claims.” Boyd v. State, 155 So.3d 914, 918 (¶ 13) (Miss. Ct. App. 2014). And just as this Court has previously determined that a trial court’s failure to inform a defendant that he has a right against self-incrimination does not violate a fundamental constitutional right, likewise, a trial court’s failure to specifically enumerate the defendant’s right to cross-examine- adverse witnesses is not a violation of a fundamental right. See id. (citing McGriggs v. State, 117 So.3d 626, 629 (¶ 10) (Miss. Ct. App. 2012)). Here, we find no violation of a fundamental constitutional right; thus, Williams cannot overcome the procedural bars.

IV. Ineffective Assistance of Counsel

¶ 12. Williams again asserts ineffective assistance of counsel in his fourth PCR motion. To prevail on a claim for ineffective assistance of counsel, Williams must prove that (1) “counsel’s performance Was deficient,” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104. S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court has held in PCR cases that “where a party offers only his affidavit, then his ineffective[-]assistance claim is without merit.” Alford v. State, 185 So.3d 429, 432 (¶ 16) (Miss. Ct. App. 2016). Williams offers nothing—apart from his own assertions—to demonstrate that, he received ineffective assistance of counsel. And because Williams’s ineffective-assistance claim rests upon his other claims, which we have found have no merit, this claim is also without merit.

¶ 13. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, ' WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.


author: FAIR, J.,

text:
    James CRITTENDEN, Appellant v. KELLOGG BROWN & ROOT, LLC and Indemnity Insurance Company of North America, Appellees
    NO. 2016-WC-00528-COA
    Court of Appeals of Mississippi.
    01/31/2017
    Rehearing Denied May 23, 2017

      ATTORNEYS FOR APPELLANT: JAMES KENNETH WETZEL, GARNER JAMES WETZEL
    ATTORNEY FOR APPELLEES: PATRICK R. BUCHANAN
    BEFORE LEE, C.J., BARNES ANP FAIR, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. James Crittenden sought workers’ compensation benefits from Kellogg Brown & Root LLC (KBR), claiming he suffered severe back pain from either being struck with a heavy object falling from a forklift, or from picking it up and putting it back on the lift. KBR admitted- that there was a minor hip injury, essentially a bruise, but it denied that the incident was responsible for the severe disability Crit-tenden claimed. The administrative judge found the ailments compensable. KBR successfully appealed to the full Mississippi Workers’ Compensation Commission, which, vacated the AJ’s decision and found that Crittenden’s back condition was-not work related and, therefore, not compensa-ble.

¶2. Crittenden appeals. Because our standard of review requires this Court to defer to .the factual findings of the Commission, we affirm..

STANDARD OF REVIEW

¶ 3, “[R]eview of a decision of the Workers’ Compensation Commission is limited to determining whether the decision was supported by substantial evidence, was arbitrary and capricious, was-beyond the scope or power of the agency to make, or violated one’s constitutional or statutory rights.” Cook v. Home Depot, 81 So.3d 1041, 1044 (¶ 3) (Miss. 2012) (citation omitted). “Because the Commission is the ultimate fact-finder and judge of the credibility of the witnesses, [an appellate court] may not reweigh the evidence before the Commission.” Id. at 1044-45 (¶ 3) (citation omitted). Questions of law, on the other hand] are reviewed de novo. Ladner v. Zachry Constr., 130 So.3d 1085, 1088 (¶ 9) (Miss. 2014).

DISCUSSION

¶ 4. Crittenden alleged that he sustained a work-related injury to his back and hip on October 3, 2013, while working as a pipefitter for KBR. Crittenden and a coworker were gathering supports for pipe fitting systems, which weighed seventy to eighty pounds. While picking up the supports with a forklift, one slipped and struck Crittenden in'the right hip, Critten-den then lifted the support and put it back on the forklift. He testified that he did not initially suspect a serious injury, but when he woke up the next day, he could barely walk because of the pain. Crittenden was subsequently diagnosed with spinal steno-sis and, though it was disputed, a herniated disc. Different doctors at different times came to different conclusions about the extent of resulting disability, though Dr. David Bomboy, the employer’s medical examiner, concluded that Crittenden could not work because of the pain (though he concluded it was not caused by the on-the-job injury).

¶ 5. Both Crittenden and KBR stipulated to the incident and a hip contusion. Otherwise, they agreed to disagree on the nature of his back problems' and presented to the Commission the single issue of causation of his back injury, specifically “whether the claimant suffered a work related injury to his back on October 3, 2013.”

¶6. After a hearing, where Crittenden testified, and both sides presented medical records or depositions, the AJ found:

It is obvious there [are] conflicting medical opinions from the Claimant’s treating physicians. However, after considering the pleadings, the record evidence, the applicable law, and the credibility of the Claimant’s testimony, this Administrative Judge finds and concludes that James Crittenden has met his burden of proof to show that he sustained a com-pensable work-related back injury, as he alleged, on or about October 3, 2013. It is apparent based on the medical records alone that the Claimant’s current medical condition was aggravated by his work-related injury. Therefore, the Claimant is entitled to disability and 'medical benefits pursuant to the Mississippi Workers’ Compensation Act.

¶7. KBR appealed and, after briefing, the Commission disagreed with the AJ. In its order, it noted:

Following the injury, Claimant was seen by Dr. Terry Taylor at the Occupational Medical Clinic on October 4, 2013. Claimant presented with a history that “[p]atient states a 701b piece of steel bumped his right hip while unloading it from a forklift,” Dr. Taylor’s physical examination of Claimant was normal, and x-rays obtained of Claimant’s pelvis/hip did not show any acute findings. Claimant was diagnosed with a right hip contusion and returned to normal employment. Claimant returned to see Dr. Taylor on October 8, 2013. Claimant again presented with complaints of pain in his right hip. No new findings were noted by Dr. Taylor, and Claimant was discharged to full duty employment.
Claimant was later seen by Dr. Yekater-ina Karpitskaya at the Bienville Orthopedic Specialists clinic on October 16, 2013. Claimant presented with complaints of low back pain and a history, of being struck by a pipe support in “his low/back right side at work.” Dr. Karpit-skaya reviewed Claimant’s MRI and noted degenerative disc disease present at L4-5 and L5-S1, with no findings of an acute injury. Claimant returned on November 20, 2013, at which time Dr, Karpitskaya noted.the following: “The patient returns for a follow-up of the low back pain. He reports the symptoms have resolved. The patient says he is doing a lot better. He is ready to return to work. Dr. Karpitskaya released Claimant to maximum medical improvement on November 20, 2013, with no subluxations, full range of motion, no muscle weakness, normal muscle tone, and no muscle atrophy.
Claimant next treated with Dr. Charles Winters on January 14, 2014. Claimant presented with complaints of low back, hip, and leg pain. Claimant completed a medical history form at Dr. Winters’s office wherein he specifically denied havT ing any prior back pains. Dr. Winters testified via deposition that Claimant’s history played a significant role in his opinion regarding causation and that-he had no prior knowledge of Claimant’s previous back complaints. Dr. Winters did opine that the Claimant sustained a disc herniation as the result of the incident;' however, Dr. Winters testified Claimant did not provide a history of prior back problems which included.rad-icular pain. According to Dr. Winters, evidence of radicular pain is a primary symptom of a patient with a herniated disc. ■ .
Claimant was examined by Dr. David Bomboy on February 18, 2014, as part of an employer’s medical examination (EME). Dr. Bomboy reviewed Claimant’s medical records and performed a physical exam. Dr. Bomboy stated' that Claimant' sustained a contusion to his right hip and that all; matters' related' to his work injury had resolved. Lastly, Dr. Bomboy concluded that Claimant was unable to work due to his long-standing, preexisting lumbar condition which was not related to Claimant’s injury at work oh October 3, 2013.
Claimant’s credibility is cailed into question regarding hip denial of back pain complaints existing prior to his October 3, 2013, right hip injury at work. Although Claimant testified at the hearing before the Administrative Judge that he “fell twice” and “could barely walk” the day after he was struck on the right hip at work, no such history was provided to Dr, Terry Taylor. Additionally, Claimant completed a “Pre-Placement Medical History Addendum” form at the time of his first visit with Dr. Taylor. The form specifically asks the following of each patient: “Please answer yes or no if you have EVER HAD these problems and date of each illness or injury.” Item 7 on the form , asked Claimant about “back trouble or pain” to which Claimant responded, “No.”
Claimant further testified at the hearing before the Administrative Judge that his pre-existing back problems were: “Very, very minor.” Additionally, Claimant denied having pre-existing back pain that radiated , into his right leg. Claimant’s testimony and medical history provided to his doctors is questionable given his well-documented, pre-existing back treatment with Dr. Kevin Cooper.
Claimant was treated by Dr. Kevin Cooper on February 7, 2011, at which time he provided history of lower back pain with pain radiating into his right leg.' Claimant provided a history of a vertebral fracture that , had occurred twenty years prior in an automobile accident and that the lumbar and thigh pain was described as “intermittent and worsening.” Claimant indicated to Dr. Cooper that he wanted to explore pain.management treatment for his pain. Claimant was placed on Lortab medication for his back pain and continued treating with Dr. Cooper through April 8, 2013. At that time, Dr. Cooper discharged Claimant from his treatment due to Claimant’s violation of the controlled substance agreement issued as part of his pain medication treatment.
In reviewing Claimant’s medical history, the Commission notes that Dr. Taylor treated Claimant for a hip contusion and released Claimant to full duty employment. No disabling back injury was identified by Dr. Taylor. Likewise, Dr. Karpitskaya noted Claimant to have right hip pain and lumbar degenerative disc disease. Similar to 'Dr. Taylor, Dr. Karpitskaya was of the impression Claimant’s symptoms had resolved and he could return to full duty employment. Dr. Bomboy • reviewed the entirety of Claimant’s medical records, and he also obtained a history and physical examination of Claimant. Dr. Bomboy also concluded that Claimant’s hip injury at work had resolved and -that any ongoing disability of Claimant was related to his long-standing low back injury as noted in the records of Dr. Cooper.
Of the four doctors who examined and treated Claimant after his hip injury at work, only- Dr. Winters provided an opinion that Claimant’s complaints of back pain were related to his October 3, 2013 injury at work. However, Dr. Winters later testified that he was not provided any history of Claimant’s back problems or of his documented complaints of lumbar pain radiating into the right leg. Dr. Winters candidly admitted he placed great weight upon Claimant’s self-reported medical history in arriving at his opinion of medical causation for the low back complaints.
Given the above claim facts consisting of Claimant’s testimony, as well as the records of Claimant’s medical treatment, the Commission finds that the weight of evidence in this claim does not support a finding that Claimant sustained an injury to his low back in the course and scope of his employment on Octobér 3, 2013.

(Citátions omitted).

¶ 8. On appeal, Crittenden contends that his testimony was uncontradicted and that the Commission could not' properly make determinations on his credibility without seeing his testimony in person. Crittenden posits that “although there may be slight evidence to support” the decision of the Commission as the "ultimate finder of fact, the “substantial evidence supports the original order” of the AJ in favor of compensability. He contends that this Court should still have “the definite and firm conviction that a mistake has been made by the Commission.” Barber Seafood Inc. v. Smith, 911 So.2d 454, 461 (¶ 27) (Miss. 2005) (citation omitted).

¶ 9. Crittenden’s argument runs contrary to -well-established Mississippi law, which we are constrained' to follow. The Mississippi Workers’ Compensation Commission is the ultimate judge of the credibility of witnesses. Id. Even though the Commission did not witness Crittenden’s testimony in person, it did not act arbitrarily or capriciously in considering his history of inconsistencies and omissions in statements made to his treating physicians in determining the weight to attribute to Crittenden’s account and the medical findings that depended upon it.

¶ 10. Moreover, as the AJ noted, there were competing medical opinions in this case, and the difference of opinion was not founded on judgments of Crittenden’s credibility. “Where medical expert testimony is concerned, [the Mississippi Supreme Court] has held that whenever the expert evidence is conflicting, the [reviewing court] will affirm the Commission whether the award is for or against the claimant.” Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 336 (¶ 13) (Miss. 2003). “[T]he Commission has the responsibility to apply its expertise and determine which evidence is more credible.” Hamilton v. Southwire Co., 191 So.3d 1275, 1282 (¶ 24) (Miss. Ct. App. 2016) (citation omitted).

¶ 11. Dr. Winters’s opinion of causation was largely based on his finding that the MRI showed that Crittenden suffered from a disc herniation (an acute injury Dr. Winters believed had beén caused by the incident) in addition to stenosis (a degenerative, preexisting disease). While Dr. Winters did state that it was 'his opinion a herniation had occurred, he repeatedly suggested that he was not .absolutely confident in his reading of the MRI. The other physicians who had examined the MRI— Dr. Bomboy and Dr. Karpitskaya—had not noted a herniation. Thus, there was clearly substantial evidence to reject Dr. Winters’s opinion without resorting to Critten-den’s credibility.

¶ 12. After reviewing the record in this case, it is apparent to us that the Commission’s decision is- supported by substantial evidence and was not arbitrary and capricious or clearly erroneous. Therefore, we defer to the Commission as finder of fact and affirm its judgment.

¶ 13. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.