author: BARNES, J.,

text:
    Maxine SMITH, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2014-CP-01510-COA.
    Court of Appeals of Mississippi.
    Jan. 19, 2016.
    Rehearing Denied May 31, 2016.
    Certiorari Denied Feb. 9, 2017.

      Maxine Smith, appellant, pro se.
    Albert Bozeman White, Madison, Leanne Franklin Brady, Anna Crain Clem-mer, attorneys for appellee.
    Before IRVING, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. Maxine Smith, appearing pro se, appeals the decision of the Circuit Court of Scott County, which dismissed her appeal as untimely. She had appealed the decision of the Board of Review (Board) of the Mississippi Department of Employment Security (MDES), which had affirmed the administrative law judge’s (ALJ) denial of unemployment benefits. Agreeing with the circuit court that Smith’s appeal to the circuit court was untimely, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. Smith was terminated from Scott Regional Hospital for a HIPAA violation. She had been employed there for twenty-five years. After her termination, she filed for unemployment benefits. At a hearing before the ALJ, she was denied benefits. Smith appealed the decision to the Board, which affirmed, adopting the ALJ’s fact-finding and decision.

¶ 3. The Board’s decision was dated and mailed to Smith on March 28, 2014, as was stated twice in the document. The Board’s decision outlined Smith’s appeal rights and deadlines, stating: “An appeal may be filed in the Circuit Court in the county in which you reside by 04/17/2014, which is 20 calendar days from the date this decision was mailed....” In July 2014, Smith wrote a letter to MDES inquiring about the status of her appeal. On July 29, 2014, MDES’s senior attorney responded by letter explaining that the Board’s decision had been mailed to her on March 28, 2014, and that her right to appeal with the circuit court expired on April 17, 2014, twenty calendar days from the date the decision was made. Attached to the letter was a copy of the Board decision, which, on its face, represented that it was mailed on March 28.

¶ 4. On August 18, 2014, approximately four months past the twenty-day appeal deadline, Smith filed her appeal with the Scott County Circuit Court. She claimed she never received the Board’s decision until she requested it in July, and her appeal was timely, as she appealed within twenty days of July 29, 2014 MDES letter. She also challenged her denial of unemployment benefits.

¶ 5. MDES responded by filing a motion to dismiss in the circuit court, claiming Smith’s appeal was untimely, to which Smith filed a response. However, the circuit court agreed with MDES and dismissed Smith’s appeal as untimely. In response, Smith filed a motion to reconsider, and an amended motion to reconsider, which the circuit court overruled. Smith then appealed to this Court.

STANDARD OF REVIEW

¶ 6. The standard of review for an appellate court’s examination of a circuit court’s grant of a motion to dismiss is de novo. Keyes v. Miss. Dep’t of Emp’t Sec., 95 So.3d 757, 759 (¶ 4) (Miss.Ct.App.2012) (citing Smith v. City of Saltillo, 44 So.3d 438, 440 (¶ 5) (Miss.Ct.App.2010)),

ANALYSIS

¶ 7. Smith argues the circuit court erred in dismissing her appeal as untimely. She claims the real issue is that her “due process rights are so ‘cut off that [she] only received notice of the [B]oard’s decision per [her] request for it”; and her untimeliness is not the issue. We disagree.

¶ 8. On February 19,2014, Smith appealed the ALJ’s denial of unemployment benefits. The Board sent Smith an “Acknowledgment of Appeal Filed” document dated February 20, 2014, which stated its decision on her appeal would be “forthcoming.” On March 28, 2014, the Board issued its decision affirming the ALJ’s denial of benefits. The document stated at its top the “Date Mailed” was March 28, 2014, and at the bottom it stated, “Dated and mailed on 03/28/2014.” It also explained the appellant’s appeal rights and deadlines—specifically stating the deadline of April 17, 2014—in connection with a further appeal to the circuit court.

¶ 9. In contrast, Smith recounts that the first time she learned of the Board’s March 28, 2014 decision was after she requested an update on her appeal and an MDES senior attorney sent a copy of the decision to her physical home address on July 29, 2014, via United States Postal Service mail. She claims she had been “electronically advised” of the ALJ’s denial of benefits, and she had “electronically reported” her job searches. In her reply brief, she explains: “[I]t appears that MDES deleted its electronic communications contact route available for [my] filing and reporting, and [I] was unable to locate anything regarding [the] Board of Review appeal decision.” She also claims she was “now unable to electronically communicate with MDES.” At that point, in July, nearly four months after the appeal deadline, Smith requested MDES physically mail her the status of her appeal. Smith argues her appeal is not untimely because it was filed within twenty days of the July 29 mailing.

¶ 10. An appeal of a decision by the Board regarding unemployment benefits is governed by Mississippi Code Annotated sections 71-5-529 and -531 (Rev.2011), Under these code sections, Smith had a total of twenty days from the date of March 28, 2014, to appeal to the circuit court. Thus, Smith’s appeal should have been received by April 17, 2014, as was noted in the decision sent to her at her last known address on March 28. Smith filed her appeal with the circuit court on August 18, 2014, over four months late.

¶ 11. Statutory deadlines must be strictly construed unless there is a showing of good cause, “such as an event affecting a party’s right through no fault of the party.” Keyes, 95 So.3d at 760 (¶ 7) (citing Miss. Emp’t Sec. Comm’n v. Powell, 787 So.2d 1277, 1281 (¶ 15) (Miss.2001)). In Keyes, the claimant filed his appeal one day late and offered no evidence of good cause; this Court affirmed the circuit court’s dismissal of his appeal. Id. at (¶¶ 8-9). Unforeseen circumstances and failure to understand what is required to appeal do not constitute good cause. Powell, 787 So.2d at 1281 (¶ 16).

¶ 12. Smith appears to claim that MDES and the circuit court have purposefully “cut off’ her due-process rights. She accuses the Board of not sending her its decision until she requested it on July 14, 2014, in spite of the fact the document states the contrary. Importantly, she offers no proof to support her claims except her own statements. Smith also complains that her appeal had been filed in the circuit court for thirty days without a response from MDES, before it sent an untimely motion to dismiss and prepared order for dismissal, and Smith had no knowledge of these actions.

¶ 13. The copy of the decision by the Board, dated March 28, with the line stating “date mailed March 28,” and resent to Smith by MDES on July 29, is admissible under the business-records hearsay exception found in Mississippi Rule of Evidence 803(6). MDES offered this document as proof that the decision was mailed March 28. However, just because the document stated it was mailed March 28, the date it was anticipated to be mailed, does not make it a certainty the document was actually mailed. It would have been better for MDES to enter into evidence an affidavit by a person with knowledge of its mailing procedure in order to show that the document was actually mailed March 28. However, the document is admissible evidence of mailing.

¶ 14. Smith offers no proof of good cause other than her own statement that she never received the March 28 Board decision. This simply is not enough. See Davis v. Miss. Dep’t of Emp’t Sec., 147 So.3d 385, 386-87 (¶¶ 5, 9) (Miss.Ct.App.2014) (appellant’s claim he never received ALJ’s decision insufficient to establish good cause); Miss. Dep’t of Emp’t Sec. v. Good Samaritan Pers. Serv. Inc., 996 So.2d 809, 813-14 (¶ 12) (Miss.Ct.App.2008) (employer did not show “good cause” for untimely appeal to Board when it merely presented two witnesses that testified they never saw notification letter from claims examiner’s decision). The notice clearly states the appeal deadline was April 17, 2014. And yet Smith waited two more weeks after receiving a copy of the notice in July to submit an untimely notice of appeal in August. MDES claims the notice was mailed to her last known address on March 28, 2014, and the notice states this fact twice. Further, MDES’s motion to dismiss was proper and not untimely.

¶ 15. Because the statutory deadlines of sections 71-5-529 and -531 are strictly construed, and Smith provides no proof of good cause to extend them, we find the circuit court properly dismissed Smith’s appeal as untimely.

¶ 16. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT IS AFFIRMED.

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

      . The Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat.1936 (1996).

      . Under section 71-5-529, the Board’s decision becomes final ten days after the date of notification, and under section 71-5-531, within ten days after the Board’s decision becomes final, a party may appeal to the circuit court for judicial review.

      . This address is the same address where the July 2014 notice was sent, and received by Smith, and the same address Smith used in all of her trial court pleadings and appellate documents.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    David W. PARVIN a/k/a David Woodrow Parvin, Appellant v. STATE of Mississippi, Appellee.
    No. 2014-KA-00466-COA.
    Court of Appeals of Mississippi.
    Feb. 23, 2016.
    Rehearing Denied Oct. 25, 2016.
    Certiorari Denied March 9, 2017.

      James Lawton Robertson, Jackson, Jim Waide, Rachel Pierce Waide, Tupelo, William James Dukes, Jackson, Edwin Poteat Lutken Jr., attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and WILSON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. David Parvin was convicted of the murder of his wife, Joyce Parvin. On appeal, the Mississippi Supreme Court found reversible error and ordered a new trial. Parvin v. State (Parvin I), 113 So.3d 1243 (Miss.2013).

¶ 2. On remand, Parvin was tried a second time in the Circuit Court of Monroe County. The jury found Parvin guilty of murder. The trial court sentenced Parvin to serve life in the custody of the Mississippi Department of Corrections. Parvin filed post-trial motions, which were denied. He then filed a notice of appeal, and the supreme court deflected this appeal to this Court. In this appeal, Parvin argues that the evidence was insufficient, the Weath-ersby rule required his acquittal, his due-process rights were violated, there were errors in the admission of evidence, the jury was not properly instructed, and cumulative eiTor. We find no error and affirm.

FACTS

¶ 3. The basic facts were summarized by the supreme court in Parvin I:

On the morning of October 15, 2007, Dr. David Parvin called 911 to report that he accidentally had shot Joyce Parvin, his wife of forty-nine years, at their home near Aberdeen, Mississippi. When law enforcement officials arrived, Joyce was dead. She was found in a desk chair, her body draped over the left ax-mrest, with a shotgun wound on the right side of her torso.
Parvin reported to the investigating officers that he had been rushing out of the house to shoot a beaver and was carrying a loaded shotgun. According to Par-vin, in his haste, he tripped, and during his fall, the gun discharged, shooting his wife, who was seated at their home computer. He told the officers that he believed the gun had been parallel to the floor or slightly elevated. He also was unsure about some of the other details: whether he or his wife had spotted the beavers first; whether he had tripped over the rug or the dog; whether his knee had hit the floor; and whether the barrel of the gun had hit the armrest of the chair where Joyce was sitting at the moment it discharged. Parvin also said that he typically held the gun, a double-barreled Savage Arms Fox 12-gauge shotgun, with his left hand on the fore grip and his right hand around the trigger guard, but was unsure whether he had pulled one of the two triggers accidentally. Although Parvin was unsure about many of the details surrounding the incident, he maintained at trial that the shooting was an accident caused by his unexpectedly tripping and falling while holding the shotgun.

Parvin I, 113 So.3d at 1244-45 (¶¶ 2-3). Each of these facts was established at the second trial.

ANALYSIS

I. Whether the evidence was insufficient to prove that Parvin acted mth “deliberate design” when he accidentally shot and killed his wife.

¶ 4. Parvin was indicted and convicted of the murder of Joyce. Mississippi Code Annotated section 97-3-19(l)(a) (Rev.2006) provides, “The killing of a human being without the authority of law by any means or in any manner [shall be murder] ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being[.]”

¶ 5. Parvin admits that 'he shot and killed Joyce. However, he claims that it was an accident. Parvin argues that there was insufficient evidence to prove that he killed Joyce “with deliberate design to effect the death of the person killed.” Id. Thus, Parvin contends that the evidence was insufficient as to the element of “deliberate design” or “intent to kill.” As a result, Parvin asks this Court to reverse and render his conviction.

¶ 6. When the sufficiency of the evidence is challenged, “the critical inquiry is whether the evidence shows beyond a reasonable doubt that 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 meet a conviction.” Sands v. State, 62 So.3d 374, 377 (¶ 14) (Miss.2011) (internal quotations omitted). The Court “is not required to decide whether it thinks the State proved the defendant’s guilt.” Id. at (¶ 15). In viewing the evidence in the light most favorable to the prosecution, the relevant question is whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (emphasis added). The supreme court has held:

If the facts and inferences point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty, then the proper remedy is for the appellate court to reverse and render. But if the evidence shows that reasonable and fair-minded persons, while considering the beyond-a-reasonable-doubt standard in the exercise of impartial deliberations, might have reached different conclusions on every element of the offense, then the evidence will be deemed to have been sufficient.

Id. at 377-78 (¶16) (internal quotations and citations omitted).

¶7. “Deliberate design connotes an intent to kill[.]” Williams v. State, 164 So.3d 1078, 1080 (¶ 7) (Miss.Ct.App.2015). “[T]he essence of the required intent is that the accused must have had some appreciable time for reflection and consideration before committing the fatal act.” Craft v. State, 970 So.2d 178, 183 (¶ 17) (Miss.Ct.App.2007). “Deliberate design to kill a person may be formed very quickly, and perhaps only moments before the act of consummating the intent.” Brown v. State, 965 So.2d 1023, 1030 (¶ 28) (Miss. 2007). Furthermore, “deliberate design ... may be inferred through the intentional use of any instrument which, based on its manner of use, is calculated to produce death or serious bodily injury.” Williams, 164 So.3d at 1080 (¶ 7). In convicting Parvin, the jury determined that Parvin had the deliberate intent to kill Joyce before he shot her with the shotgun.

¶ 8. To prove the evidence was sufficient, the State acknowledges that there was no direct evidence of deliberate design. The State, however, points to the testimony of a number of witnesses to prove that the jury had sufficient evidence to find Par-vin’s intent to kill.

¶9. The State argues that Parvin’s inconsistent accounts of the events surrounding Joyce’s death is evidence of deliberate design. Fust, when Deputy Curtis Knight first spoke with Parvin on the scene, Parvin told him that he tripped over the rug and the gun went off. Second, after Parvin’s clothes were taken for testing but while still at the scene, Parvin told Deputy Knight that he was unsure what he tripped over. Third, also while on the scene, Parvin told Sydney Bean, a neighbor and law enforcement officer, that he tripped over the dog and the gun went off. Fourth, when Parvin went in to give a statement, he was unsure what he tripped over, but it may have been the rug or the dog. Fifth, at the first trial four years after Joyce’s death, Parvin stated that, just before giving his statement to law enforcement, he was at Amy’s house when “it actually came to me exactly that I stepped on the dog.” Sixth, while awaiting retrial, Parvin determined that “I tripped, trying not to kill the dog, which I believed I could safely do without the gun fíi’ingf;] I somehow—I moved the safety forward to the off fire position, and somehow I pulled or touched the front trigger, and the gun fired.”

¶ 10. The State claims that Parvin’s arguments at the second trial—about the “accident”—contradicted prior versions of how he allegedly fell. In all prior statements and in his trial testimony he stated that the gun “went off’; he did not recall pulling the trigger. He claimed it likely discharged by “striking something real hard,” and at one point his thumb was probably on the safety and at another time it was on the side of the frame. Yet on October 16, 2013, six years after the “accident,” he remembered that as he fell he moved the safety forward to the off/fire position and pulled or touched the trigger.

¶ 11. The State presented the expert testimony of Starks Hathcock, a forensic scientist specializing in firearms identification. Hathcock testified about his findings from tests of Parvin’s shotgun. He examined Parvin’s shotgun and conducted multiple tests in order to determine whether the gun would fire when jarred or dropped. One of the tests involved hitting various areas of the gun with a cowhide mallet. During this test, the gun did not fire. In another test, the gun did not go off when dropped multiple times at multiple angles. Hathcock dropped the gun twenty-four times at various angles with the safety on and off until the gun broke, and the gun never fired. Further, Hath-cock testified that in order to fire, the safety would need to be off and the trigger pulled with a weight of eight to ten pounds. Thus, to a reasonable degree of scientific eertainty based upon these tests, Hathcock testified that the gun would not misfire. The State claims that this evidence was inconsistent with Parvin’s claim of accidental discharge.

¶ 12. The State also offered testimony about Parvin’s normal actions or habits in the storage and usé of guns. Parvin’s daughter, Amy, testified about Parvin’s life-long insistence on gun safety. Parvin kept his guns in an outside storage room, which was accessible by exiting the house from a door in his bedroom. Parvin’s grandson, Clay, testified that Parvin went through his room “most of the time” to go to the channel to shoot on the water. The State argues that this testimony casts doubt on Parvin’s claim that in this particular instance, he had a loaded gun in his bedroom, and rather than take the route he always took to the channel, he came through the house, with the intention of walking out the front, down a flight of stairs, and around the house to shoot a beaver.

¶ 13. Finally, the State points to Par-vin’s possible motive for wanting to start a new life without Joyce. Betty Hamblin testified about her affair with Parvin. Parvin told her that Joyce talked about killing herself. However, there was also evidence that Joyce was aware of Parvin’s affair with Hamblin, and this was not an issue between them. The State also offered the fact that Parvin began seeing another woman just three months after Joyce’s death.

¶ 14. Parvin argues vigorously that the State did not present sufficient proof of “deliberate design” or “intent to kill.” Parvin correctly claims that there was no direct evidence offered by the State as to deliberate design, and the State’s evidence on this element of the crime was circumstantial. Parvin refers us to the distinction between circumstantial and direct evidence:

This Court previously has defined circumstantial evidence as evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist. Direct evidence, on the other hand, must directly and not by inference implicate the accused and not just show that there has been a crime. While evidence does not always fall neatly into one category, examples of direct evidence include an admission or confession by the defendant to a significant element of the offense, or eyewitness testimony to the gravamen of the offense charged. The term “gravamen” is defined as the substantial point or essence of a claim, grievance, or complaint.

Burleson v. State, 166 So.3d 499, 509 (¶ 29) (Miss.2015) (internal citations and quotation marks omitted). Further, Parvin argues that Hamblin’s testimony, which may be considered the strongest evidence of intent, was inconsistent and unreliable.

¶ 15. We must always recognize that “the jury [is] the sole judge of the credibility of witnesses and the weight and worth of their testimony. [T]he credibility of witnesses is not for the reviewing court.” Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980); see also Hawthorne v. State, 835 So.2d 14, 22 (¶ 34) (Miss.2003). Here, the standard of review for this issue is not whether this Court finds that the State proved the defendant’s guilt. Sands, 62 So.3d at 377 (¶ 15). Instead, we must view the evidence in the light most favorable to the prosecution and then decide whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at (¶ 14).

¶ 16. Based on the evidence discussed above, we find that the evidence was sufficient to allow a rational fact-finder to find the elements of deliberate design present. Therefore, we find no merit to this issue.

II. Whether Parvin is entitled to a judgment of acquittal under the Weathersby rule.

¶ 17. Parvin next argues that he should be acquitted under the Weathersby rule. Parvin begins his argument with this statement:

Weathersby has been called “[t]his often-argued, but seldom-prevailing, rule.” Simpson v. State, 993 So.2d 400, 407 (¶ 23) (Miss.Ct.App.2008). Still, we should never forget the parable of Aesop’s Fable of the “Boy Who Cried Wolf!” The Supreme Court in Parvin I and the prosecution below have shown why this is one of those rare cases where there really is a Wolf afoot! Weathersby requires acquittal. As recently as 2008, the Supreme Court reaffirmed that reports of the demise of Weathersby have been greatly exaggerated. Au contraire, it “is alive and well and living in the courtrooms of this state.” Johnson v. State, 987 So.2d 420, 424 (¶ 10) (Miss.2008) (citations omitted).

A. Hamblin’s Testimony

¶ 18. Parvin asks that we look closely at the supreme court’s decision in Parvin I, where the court ruled:

Without the inadmissible expert opinions to establish that Parvin intentionally had shot his wife, he argues that he is entitled to an acquittal under Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933). In 1933, the Mississippi Supreme Court declared:
[W]here the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.

Id. If the Weathersby rule applies “and the defendant’s version affords an absolute legal defense, the defendant is entitled to a directed verdict of acquittal.” Green v. State, 631 So.2d 167, 174 (Miss.1994) (citing Blanks v. State, 547 So.2d 29, 33 (Miss.1989)). There are, however, limitations upon the familiar Weathersby rule. For example, it is inapplicable when the defendant’s “conduct and statements following the killing are inconsistent with his version of the events as recounted at trial.” Green, 631 So.2d at 174 (citing Blanks, 547 So.2d at 33).

We find that Parvin cannot successfully invoke the Weathersby rule, given the testimony by his mistress. As recounted above, she testified that Parvin initially told her that Joyce had committed suicide. Sometime later, he admitted that he had lied about the manner of his wife’s death and told his paramour that the shooting had been an accident. Because Parvin’s claim that his wife had taken her own life contradicted his assertion that he had shot her accidentally, we find that Parvin is not entitled to a judgment of acquittal under Weathersby.
... Additionally, we find that the defendant is not entitled to an acquittal based on the Weathersby rule due to his highly inconsistent statements following his wife’s death.

Parvin I, 113 So.3d at 1251-52 (¶¶ 34-36). As a result, it is clear that the supreme court’s decision on this issue was based on Betty Hamblin’s testimony at trial, which the court described as follows:

Betty Hamblin testified that Parvin initially had told her Joyce had committed suicide, but then he “changed his story” to the version he had given in his initial interview with police. According to Hamblin, she and Parvin had been engaged in an extramarital affair prior to and after the death of his wife, and she said that, after his wife’s death, Parvin had asked her to marry him. She said that she later learned that Parvin had been seeing still another woman, whom he eventually married instead.

Id. at 1246 (¶ 7) (emphasis added).

¶ 19. For the purpose of this appeal, we carefully examine Betty Hamblin’s testimony at the second trial. Parvin argues that the law of Parvin I must be followed and faithfully applied in this appeal, and the mandate rule leaves this Court “no discretion in the matter.”

¶ 20. At the first trial, Hamblin testified “that Parvin initially had told her Joyce had committed suicide, but then he ‘changed his story” to the version he had given in his initial interview with police.” In this appeal, we consider the testimony only at the second trial. Hamblin’s testimony about her initial communications with Parvin following his wife’s death on October 15,2007, was as follows:

Q: Okay, Ms. Hamblin, so that I’m clear[,] ... the first conversation you had with him, where he talked about his wife being killed, he said she had killed herself?
A: That’s what I thought—I thought— I’m sure he said it. I don’t know. I just said he had talked about her killing herself before. And I tell you, ma’am—and I still am upset about it. It still bothers me.
A: —I don’t—you know, at that time he could have—you know, I could have been thinking about her—him talking about her going to kill herself the few times he had said that, way before this ever happened.
Q: Okay, Ms. Hamblin, let’s—and I understand that you are upset.
A: I am upset.
Q: Ms. Hamblin, do you want to be here today?
A: No, ma’am.
Q: You are not comfortable here today; is that right?
A: No, ma’am.
Q: You said earlier a few weeks later you met with David Parvin; is that right?
A: Yeah I—you know, I thought it was a day or two after when he called me, but just saying it was two weeks, or three, it was a good while, but not a long, long time.
Q: But sometime after that call you did meet with him; is that right?
A: Yes, ma’am.
Q; Okay. And what did he tell you at that time had happened?
A: Like I said, he was talking about her killing herself, or that’s the way I understood that he said that. Then he turned around and said she tripped on the dog or a rug. He did.
Q: And what did he say happened when he tripped on the dog or the rug?
A: The gun—gun went off, and he had talked about going out and shooting beavers for the last ten years or more. So, you know, he has done it.
Q: Ms. Hamblin[ ]—
A: I don’t know whether he killed them or not, but they had beavers back there building up dams.

¶ 21. On cross-examination, Hamblin further testified:

Q: Well, you were a little unclear about the time of this conversation about suicide. You were—
A: There was several years before she ever died, he had mentioned it.
Q: Several years before she ever died?
A: Yeah, different times he would say something like that.
Q: But do you remember very definitely that he told you at some point that he tripped either over a rug or a dog?
A: Yeah, like I told, like I said a while ago, because he had mentioned it years back, I might have misunderstood him. You know what I mean? He might have meant—when he was saying that, I might in my mind, saying he is talking about she committed—she killed herself. I done heard it several times years back.
Q: Several years back?
A: Well, I just told that.

¶ 22. On redirect, she testified:

Q. Ms. Hamblin, what if anything did Mr. Parvin tell you had happened to his wife after she was killed?
A. Like I said, I have heard him talking about, seven, eight years ago, how many—not a whole bunch, every once in a while he would say, She is talking about killing herself. Well, several weeks, when I did meet him and ride to Tupelo with him and eat, the first thing I thought he said was that she killed herself, and then he said the other, but like I have told you and him, I could have misunderstood that, because I had—I had heard it several times before, about her killing herself.

¶23. Parvin argues that Ham-blin’s testimony was ambiguous about exactly what Parvin told her after his wife’s death. Specifically, he claims that her testimony was repeatedly muddled with statements he made to her “years back” in their relationship. Also, she testified that on numerous occasions during their extramarital affair, Parvin had told Hamblin that his wife had talked about committing suicide. Finally, Parvin points to the fact that Hamblin, at least four times, repeated that she could have confused their communications after Parvin’s wife’s death with the times she had “heard it several times years back ... way before this ever happened.” Despite her confusion, Hamblin still testified at the second trial to the same facts she testified to at the first trial, namely that Parvin initially told her that Joyce killed herself and later changed his story. For this reason, the Weathersby rule is inapplicable.

¶ 24. It is important to acknowledge that “the jury determines the weight and credibility of witness testimony.” Jones v. State, 154 So.3d 872, 881 (¶ 26) (Miss.2014). “In those cases in which the defendant is the only eyewitness to the slaying, and in which the Weathersby rule is inapplicable ..., it then becomes a jury issue as to whether to believe or not believe the defendant’s testimony of how the slaying occurred[.]” Blanks, 547 So.2d at 33-34. The Court does not determine whether Hamblin’s testimony outweighs Parvin’s version of events or whether Hamblin was a credible witness. That is the role of the jury.

B. Other Inconsistent Accounts of the Killing

¶ 25. Aside from Hamblin’s testimony, Parvin also gave multiple inconsistent accounts of what occurred on the day he killed Joyce. Throughout the investigation into Joyce’s death, Parvin told variable accounts of whether he tripped over a dog, a rug, or his own feet. He also told officers on the day of Joyce’s death that the gun “went off.” Then at the first trial, Parvin testified that he “did not pull the trigger deliberately, nor [did he] remember pulling the trigger.”

¶26. In a more recent letter to his daughter Amy, Parvin recounted in detail what occurred and described how that he tripped while simultaneously moving the safety and pulling the trigger. Parvin argues on appeal that he is “not precisely certain how he pulled the trigger” but that he did in fact pull the trigger. This version of events matches more closely with Hathcock’s testimony that the gun did not misfire when dropped.

¶ 27. Again, “The Weathersby rule is ... inapplicable where the defendant’s conduct and statements following the killing are inconsistent with his version of events as recounted at trial.” Green, 631 So.2d at 174. Hamblin’s testimony, along with the inconsistencies in Parvin’s version of events, is sufficient for this Court to decline to apply the Weathersby rule; therefore, we find no error as to this issue.

III. Whether Parvin was denied due process.

¶ 28. Parvin argues that for this Court to affirm his conviction would result in a violation of due process. Essentially, he reasserts his claim that there was insufficient evidence to prove deliberate design. As an alternative, Parvin challenges the credibility of the evidence presented. The Court has found sufficient evidence as well as specific evidence that precludes the application of the Weathersby rule. Therefore, we also find that this issue has no merit, and there is no need to address it further.

IV. Whether the trial court erred in denying Parvin’s request to introduce telephone records into evidence.

¶ 29. During trial, Parvin attempted to discredit Hamblin’s testimony about their telephone conversations by introducing Parvin’s telephone records. Parvin’s counsel sought to have the records admitted into evidence as ordinarily 'kept business records.

1130. The admission or exclusion of evidence is within the sound discretion of the trial judge and will not be reversed absent an abuse of discretion. Ferguson v. Snell, 905 So.2d 516, 518 (¶ 8) (Miss.2004); Bailey v. State, 956 So.2d 1016, 1025 (¶¶ 25-26) (Miss.Ct.App.2007). “Abuse of discretion will only be found where a defendant shows clear prejudice resulting from an undue lack of constraint on the prosecution or undue constraint on the defense.” Bailey, 956 So.2d at 1025 (¶ 25). “Any error in the admission or exclusion of evidence is not grounds for reversal unless the error adversely affected a substantial right of a party.” Id. at 1025-26 (¶ 26).

¶ 31. The first witness called by the State was Curtis Knight, chief deputy of the Monroe County Sheriffs Department. On cross-examination, Parvin’s counsel sought to introduce Parvin’s telephone records that were subpoenaed by the sheriffs department. The prosecutor objected on the grounds of hearsay and Deputy Knight’s inability to authenticate the records. Parvin argued that Deputy Knight’s testimony was sufficient for authentication purposes because Deputy Knight received the records pursuant to a subpoena he requested. The trial court sustained the objection.

¶ 32. Clearly, the telephone records are hearsay. The records are a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). As such, the records are not admissible. M.R.E. 802. The records could be admitted under Mississippi Rule of Evidence 803(6) as “Records of Regularly Conducted Activity” but would need a sponsoring witness, “a person with knowledge ... as shown by the testimony of the custodian or other qualified witness or [the records must be] self-authenticated pursuant to Mississippi Rule of Evidence 902(11).... ” For the telephone records to be self-authenticating, Parvin would have had to follow Rule 902(11):

Certified Records of Regularly Conducted Activities.
(A) The records of a regularly conducted activity, within the scope of Rule 803(6), about which a certificate of the custodian or other qualified witness shows (i) the first hand knowledge of that person about the making, maintenance and storage of the records; (ii) evidence that the records are authentic as required by Rule 901(a) and comply with Article X; and (iii) that the records were (a) made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (b) kept in the course of the regularly conducted activity; and (c) made by the regularly conducted activity as a regular practice. Such records are not self-authenticating if the sources of information or the method or circumstances of preparation indicate lack of trustworthiness.
(B) As used in this subsection, “certificate” means, (i) with respect to a domestic record, a written declaration under oath or attestation subject to the penalty of perjury;....
(C)(i) Records so certified will be self-authenticating only if the proponent gives notice to adverse parties of the intent to offer the records as self-authenticating under this rule and provides a copy of the records and of the authenticating certificate. Such notice must be given sufficiently in advance of the trial or hearing at which they will be offered to provide the adverse party a fair opportunity to consider the offer and state any objections, (ii) Objections will be waived unless, within fifteen days after receiving the notice, the objector serves written specific objections or obtains agreement of the proponent or moves the court to enlarge the time, (iii) The proponent will be responsible for scheduling a hearing on any objections and the court should hear and decide such objections before the trial or hearing at which they will be offered. If the court cannot rule on the objections before the trial or hearing, the records will not be self-authenticating, (iv) If in a civil case, on motion by the proponent after the trial or hearing, the court determines that the objections raised no genuine questions and were made without arguable good cause, the expenses incurred by the proponent in presenting the evidence necessary to secure admission of the records shall be assessed against the objecting party and attorney.

¶ 33. This Court has held that “[b]usiness records, such as telephone billing information, are typically admitted under what is known as the business-records exception[.]” Bartolo v. State, 32 So.3d 522, 531 (¶ 34) (Miss.Ct.App.2009). This exception provides for admission of records “made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the ... record.” Id.

¶ 34. We find that the trial court did not abuse its discretion when it sustained the objection and excluded the telephone records from evidence when offered through Deputy Knight. “A trial judge has wide discretion in ruling on the admissibility of testimony offered at trial[.]” Bailey, 956 So.2d at 1026 (¶31). We find .this issue is without merit.

V. Whether the trial court erred in admitting Parvin’s prior testimony.

¶ 35. Parvin next argues that the trial court erred when it allowed the State to introduce Paryin’s testimony from the first trial. Parvin claims that the only reason he testified in the first trial was to rebut the improper evidence. He also maintains that his testimony was not an “admission” within the confines of the Mississippi Rules of Evidence.

¶36. “The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused.” Fulks v. State, 110 So.3d 764, 769 (¶ 19) (Miss.2013) (quoting Johnston v. State, 567 So.2d 237, 238 (Miss.1990)). “Former testimony, voluntarily given in a criminal trial, may be introduced in a subsequent trial upon remand or where the first trial ended in a mistrial.” Id. at 770 (¶ 21) (quoting Reed v. State, 523 So.2d 62, 67 (Miss.1988)). The supreme court has “held that a defendant’s testimony at a former trial that constitutes an admission under the laws of evidence may be presented in a later trial of the defendant.” Id. at (¶ 22) (citing Stringer v. State, 491 So.2d 837, 841 (Miss. 1986)).

¶ 37. Parvin argues that his testimony at the first trial was induced by the improper evidence admitted during that trial. He relies on Harrison v. State, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), for the proposition that his testimony should be inadmissible in later proceedings because he testified “in order to ovex*-come the impact” of evidence improperly admitted. Id. at 223, 88 S.Ct. 2008. However, in Harrison, the defendant “testified only after the Government had illegally introduced into evidence three confessions, all wrongfully obtained.” Id. at 222, 88 S.Ct. 2008. Numerous jurisdictions have held that Harrison “is limited to situations in which a defendant’s testimony during a first trial is induced by constitutionally inadmissible evidence[.]” State v. Hunt, 339 N.C. 622, 457 S.E.2d 276, 285 (1994). So “even if [the] defendant’s testimony at his first trial was induced by evidence which was inadmissible under the rules of evidence, and not because it was unconstitutionally obtained, the Harrison exception to the general rule permitting the testimony to be offered at the second trial would not apply.” Id. (citing United States v. Mortensen, 860 F.2d 948, 951 (9th Cir.1988); State v. Castonguay, 218 Conn. 486, 590 A.2d 901, 904 (1991); People v. Armentero, 148 Mich.App. 120, 384 N.W.2d 98 (1986); State v. Wills, 293 N.C. 546, 240 S.E.2d 328, 330-31 (1977)).

¶ 38. Furthermore, it does not appear from the record that Parvin’s testimony at the first trial was provoked by improper expert testimony, as it appears that it was his strong desire to testify. The record from the second trial evinces that Parvin may have willingly taken the stand again if given more of an opportunity, though against his attorneys’ advice. Parvin’s attorneys requested that the trial court not voir dire Parvin regarding his right to testify out of concern that Parvin would take the stand, and the court obliged counsel by asking Parvin only one question.

¶ 39. Finally, Parvin’s testimony does constitute “an admission, as that concept is understood in our law of evidence.” Fulks, 110 So.3d at 770 (¶22). Parvin’s statement was admissible as an exception to the hearsay rule, under Mississippi Rule of Evidence 801(d)(2), because the statement offered against him was Parvin’s “own statement, in either an individual or a representative capacity.” Fulks, 110 So.3d at 770 (¶ 20); M.R.E. 801(d)(2). Accordingly, we find that the trial court did not abuse its discretion. We find no merit to this issue.

VI. Whether the trial court erroneously instructed the jury.

¶ 40. Parvin next argues that the trial court erred in rejecting two jury instructions, one addressing his prior conviction and one addressing circumstantial evidence. In Hull v. State, 174 So.3d 887, 899 (¶ 34) (Miss.Ct.App.2015), this Court ruled:

The standard of review for the refusal of jury instructions is abuse of discretion.
The instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. There is no error if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law.
Further, a defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. If the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.

(Internal citations and quotation marks omitted).

A. Jury Instruction as to Prior Conviction

¶ 41. Parvin requested that the trial judge instruct the jury that it must disregard the fact that Parvin had been convicted in a prior trial. The trial court denied this request. Parvin appeals this ruling.

¶ 42. Parvin particularly complains that his daughter, Amy Henley, made a statement during her testimony about Parviris previous trial and conviction. Though Henley was the first to mention the prior trial, she was certainly not the last. Par-vin’s counsel asked many of the witnesses about their testimony in the past trial. Further, Parvin did not object at the first mention of the prior conviction during Henley’s testimony. The trial court, in rejecting the offered jury instruction, found that was the appropriate time for such an objection.

¶43. Parvin has not offered and we have found no authority that would indicate the trial court abused its discretion in this decision. Accordingly, we find no abuse of discretion. This issue is without merit.

B. Jury Instruction as to Circumstantial Evidence

¶ 44. Parvin also requested circumstantial-evidence instructions, which were rejected by the trial court. Particularly, Parvin requested that the jury be instructed that it could not return a verdict of guilty unless it found the element of “deliberate design” beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence.

¶ 45. “When the evidence against the accused is wholly circumstantial in nature, the trial court must instruct the jury that the State is required to prove the accused’s guilt not only beyond a reasonable doubt, but to the exclusion of every reasonable hypothesis other than that of guilt.” McCoy v. State, 147 So.3d 333, 351 (¶ 47) (Miss.2014) (internal quotation marks omitted). “Circumstantial evidence cases lack direct evidence.... But where the accused has made an admission on an element of the offense, the case is no longer circumstantial such that a circumstantial[-]evidence instruction is required.” Bennett v. State, 933 So.2d 930, 948 (¶ 66) (Miss.2006).

¶46. When both circumstantial and direct evidence are admitted at trial, the defendant is not entitled to a circumstantial-evidence instruction. Id. “[D]irect evidence has been held to include evidence such as eyewitness testimony, the defendant’s confession to the offense charged, or the defendant’s admission as to an important element thereof.” Id. at (¶ 67); Turner v. State, 910 So.2d 598, 603 (¶17) (Miss.Ct.App.2005).

¶ 47. Recently, in Holliman v. State, 178 So.3d 689 (Miss.2015), the supreme court considered this very issue. The court held:

Holliman requested a circumstantial-evidence instruction, which stated that “[i]n order for you to find Brian D. Holli-man[ ] guilty of Murder, you must first find him guilty not only beyond a reasonable doubt, but also to the exclusion of every reasonable hypothesis consistent with innocence.” The trial court denied the instruction because a circumstantial-evidence instruction is not warranted when the defendant has admitted a significant element of the charged offense. This is because an admission to a significant element of the charged offense constitutes direct evidence, and a circumstantial-evidence instruction should be granted only if the evidence is purely circumstantial. Holliman’s admission that he shot Laura was an admission to the “killing of a human being” element of the charged crime of first-degree murder. Holliman admits that his admission to shooting Laura constituted direct evidence. But he argues that this Court should require a circumstantial-evidence instruction if intent is the only disputed element and the State’s evidence on that element is circumstantial.
We decline to adopt Holliman’s argument. Even when other evidence in a case is direct, the element of intent is usually proven by circumstantial evidence because, unless a defendant expressly states his intent at the time of the crime, intent can be proven only by the act itself and the surrounding circumstances. To require a circumstantial-evidence instruction every time intent is disputed would require a circumstantial-evidence instruction in virtually every case. But “[o]ur precedent consistently adheres to the rule that any direct evidence presented at trial is sufficient to preclude a circumstantial[-]evidence instruction,” “[I]t [is not] unusual for criminal cases to contain some direct evidence and some circumstantial evidence.” We reject Holliman’s proposed rule because it would eliminate any distinction between a circumstantial-evidence case and a direct-evidence case.

Id, at 702 (¶¶ 33-34).

¶48. As in Holliman, the evidence presented at Parvin’s trial was not entirely circumstantial. Parvin, like Holli-man, admitted that he shot his wife. Par-vin argues that the evidence presented for the “deliberate design” element was circumstantial and that he is therefore entitled to a circumstantial-evidence instruction. Holliman rejected that argument. Because Parvin admitted to an element of the crime—that he killed Joyce—Parvin’s admission constituted direct evidence. Id. We find this issue to be without merit.

VII. Whether Parvin is entitled to a new trial and whether an accumulation of errors denied Parvin due process of law.

¶ 49. Finally, Parvin requests a new trial and asserts that cumulative error has violated his right to due process. Because we have found no error, we also find that a new trial is not warranted.

¶ 50. THE JUDGMENT OP THE MONROE COUNTY CIRCUIT COURT OP CONVICTION OP MURDER AND SENTENCE OP LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . An extensive discussion about Hamblin’s testimony is in the next section and will not be repealed here. However, the State claims that Hamblin's testimony proves the evidence was sufficient to support the conviction.

      . In Parvin I, the supreme court held that the expert opinion of pathologist Dr. Steven Hayne regarding the distance and trajectory measurements of the shotgun wound and the computer-generated recreation of the shooting based upon these measurements were improperly admitted in trial. Parvin I, 113 So.3d at 1248-51 (¶¶ 22-33). ''[T]he speculative 'expert' opinions and the accompanying computer-generated depictions of the 'possible' account of the shooting should not have been placed before the jury. As this constituted the main evidence utilized to undermine Parvin's defense, reversal is required.” Id. at (¶ 33) (internal citation omitted).


text:
    Scotty B. LYLES a/k/a Scotty Lyles, Appellant v. STATE of Mississippi, Appellee.
    No. 2014-CP-01345-COA.
    Court of Appeals of Mississippi.
    May 17, 2016.
    Rehearing Denied Nov. 8, 2016.
    Certiorari Denied March 9, 2017.

      Scotty B. Lyles, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, C.J., BARNES and WILSON, JJ.
   BARNES, J.,

for the Court:

¶ 1. Scotty B. Lyles, appearing pro se, appeals the Oktibbeha County Circuit Court’s dismissal of his motion for post-conviction relief (PCR). Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On May 22, 2006, Lyles robbed the Tobacco Shed, a convenience store in Starkville, Mississippi. Janice Kilgore, who was working at the store on this day, testified that between 10 and 11 a.m., a man wearing all-black clothing entered the store and pulled something over his face. He then attempted to rob her at knife-point. The crime was captured by the store’s surveillance camera. Lyles fled from the store, and Kilgore ran from the building screaming, “I’ve been robbed. There he go[es].” Kilgore and several witnesses outside the store positively identified Lyles as the robber and the man running from the store.

¶ 3. A grand jury returned a two-count indictment against Lyles for robbery and attempted robbery, at the Tobacco Shed and another store, on two consecutive days, respectively. The counts were severed—Count I was retired to the file, and the State proceeded against Lyles on Count II. On April 17, 2007, the State filed a motion to amend the indictment to reflect Lyles’s status as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev.2015). Evidence of approximately fourteen other prior felonies such as burglary, grand larceny, and theft, in Illinois and Mississippi, was submitted to the court. However, the motion was not granted by the trial court until the day of the jury verdict.

¶ 4. After a jury trial, Lyles was convicted of armed robbery. Evidence was submitted of convictions for numerous felonies, at least one of which was violent. He was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections, as a habitual offender under section 99-19-83, without eligibility for parole or probation.

¶ 5. On February 6, 2013, Lyles filed a PCR motion in the Oktibbeha County Circuit Court, claiming that his indictment was improperly amended to reflect his habitual-offender status. He cites Gowdy v. State, 56 So.3d 540 (Miss.2010), in support of his argument. Gowdy held an indictment cannot be amended following a guilty verdict and just prior to sentencing to allege habitual-offender status. Id. at 545 (¶ 19). The trial court, however, found Gowdy did not apply since the motion to amend the indictment was filed before Lyles’s trial and sentencing. Lyles’s PCR motion was dismissed, and he now timely appeals.

STANDARD OF REVIEW

¶ 6. In reviewing the trial court’s dismissal of a PCR motion, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Questions of law are reviewed de novo. Whatley v. State, 123 So.3d 461, 466 (¶ 6) (Miss.Ct.App.2013).

ANALYSIS

¶ 7. Lyles raises two issues. First, he argues that, under Gowdy, the trial court erred in granting, after his jury trial, the State’s motion to amend his indictment to include habitual-offender status. Second, he contends his indictment was defective because the amended portion of his indictment charging him as a habitual offender did not conclude with the words “against the peace and dignity of the State of Mississippi.” Each of these issues is procedurally barred; however, we shall discuss the motion-to-amend issue on the merits.

Motion to Amend Indictment

¶8. Lyles claims his due-process rights were violated when the trial court granted the State’s motion to amend his indictment after his jury trial.

¶ 9. Uniform Rule of Circuit and County Court Practice 7.09 provides that indictments may be amended, but such an “[ajmendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” These requirements are assessed on a case-by-case basis. McCain v. State, 81 So.3d 1055, 1062 (¶ 16) (Miss.2012). Rule 7.09, however, “does not speak to the timing of the amendment.” Carr v. State, 178 So.3d 320, 321(¶ 17) (Miss.2015) (quoting Gowdy, 56 So.3d at 545 (¶ 16)).

¶ 10. In Gowdy, the supreme court found “an amendment to the indictment to allege habitual offender status after conviction is an unfair surprise,” but the supreme court “did not establish a per se timing rule.” Id. Gowdy’s rule was clarified in McCain, where the focus shifted from when the indictment was amended to when the defendant was put on notice that the State would seek a habitual-offender enhancement. Carr, 178 So.3d at 321 n. 2; see McCain, 81 So.3d at 1061-62 (¶¶ 13-15).

¶ 11. First, Lyles’s PCR motion is procedurally barred, as it is untimely. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), a PCR motion must be filed within three years of the time the petitioner’s direct appeal is ruled upon. Miss.Code Ann. § 99-39-5(2) (Rev. 2015). Here, Lyles’s direct appeal of this conviction was affirmed by this Court on May 19, 2009. See Lyles v. State, 12 So.3d 552, 555 (¶ 17) (Miss.Ct.App.2009). He filed his PCR motion in February 2013, over three years later. Thus, his PCR motion is time-barred.

¶ 12. Certain statutory exceptions could waive the procedural bar, such as an intervening Mississippi Supreme Court decision like Gowdy, if it applied. See Miss.Code Ann. § 99-39-5(2)(a)(i). However, Gowdy does not apply, because, as the State points out, it cannot be applied retroactively to cases that were final before April 7, 2011, the date Gowdy’s mandate was issued. See Carr, 178 So.3d at 321 (¶ 6) (holding Gowdy does not apply retroactively to habitual-offender convictions that were final when Gowdy was issued). This Court affirmed Lyles’s conviction on May 19, 2009, and the mandate to his appeal was issued on June 23, 2009, before the Gowdy opinion was final. Even if the rule established in Goivdy could be applied retroactively, however, this case is factually distinguishable from Gowdy.

¶ 13. In Gowdy, on the morning of trial, the parties had an on-the-record discussion about plea negotiations for Gowdy’s felony-DUI charge. The State recommended a one-year sentence in custody if Gowdy pleaded guilty. Gowdy rejected the offer, and a jury trial ensued. Gowdy, 56 So.3d at 544 (¶ 14). The next day, after Gowdy was convicted, the State told the trial court it had just received information about Gowdy’s prior convictions in another state, and that it would seek to amend his indictment to include habitual-offender status under either section 99-19-81 or -83. Id. at (¶ 15). Two months later, the day of Gowdy’s sentencing, the State filed its motion to amend the indictment to charge Gowdy as a habitual offender under section 99-19-83, which requires a mandatory life sentence. Id. at 544-45 (¶ 15). Before the hearing, the trial court ruled against the defendant’s objection to the amendment, stating it did not prejudice him. Id. at 545 (¶ 15). The supreme court held this ruling was in error because of “unfair surprise” to Gowdy, vacated his enhanced penalty, and remanded the case for resen-tencing. Id. at 546 (¶ 22).

¶ 14. McCain is also instructive on the application of Gowdy and what constitutes fair notice. In McCain, the defendant was indicted for robbery. McCain, 81 So.3d at 1057 (¶4). Approximately eight months before trial, a hearing summary filed by the trial court stated that during plea negotiations, the State acknowledged that it planned to introduce at trial prior convictions of the defendant, including bank robbery. Id. The next month, the State disclosed at a hearing that it intended to file a motion to amend the indictment to include habitual-offender status under section 99-19-83, and filed it the next day. Id. at 1057-58 (¶ 4). Seven months later, the day the jury trial began, the State reminded the trial judge and counsel opposite that its motion to amend the indictment had not been ruled upon by the trial court. The next day, the defendant was convicted; however, at sentencing, defense counsel claimed he and his client were unaware of the motion to amend the indictment, even though counsel claimed he had a copy of “the file.” The defendant was sentenced as a habitual offender to life in prison. Id. at 1058 (¶ 5). The supreme court affirmed his sentence, holding that under these circumstances, the defendant received fair notice and was not “unfairly surprised” by the habitual-offender enhancement under Gowdy and Rule 7.09. Id. at 1062 (¶ 15).

¶ 15. As stated earlier, the State’s motion to amend Lyles’s indictment to reflect his habitual-offender status was filed on April 17, 2007, approximately two weeks before his trial. The assistant district attorney informed the trial judge that the motion was served on defense counsel on the same date. The trial court, however, did not address the motion until after the jury returned a guilty verdict, but before sentencing. The trial judge explained on the record that the court “does not address motions to amend the indictment for sentencing purposes ... until that need arises.” The judge continued that, the week before, in another of Lyles’s cases, he conducted a section 99-19-83 habitual-offender hearing and found beyond a reasonable doubt that Lyles had been previously convicted of approximately fourteen felonies, from theft to burglary to robbery, and enumerated each of them on the record. These same prior felonies were presented to the court for the sentence enhancement in this case. The State moved to adopt the prior sentencing-hearing evidence for this conviction—which had the same parties and concerned the same issues—without objection from the defense. The trial court granted the State’s motion to amend the indictment showing Lyles was a habitual offender under section 99-19-83 and sentenced him to life imprisonment without the possibility of parole or probation.

¶ 16. Lyles claims he was unfairly surprised because he had no notice until his sentencing hearing that his indictment might be amended to reflect habitual-offender status. However, the assistant district attorney reported to the trial judge that Lyles’s counsel was served with the motion to amend two weeks before trial. Lyles offers no proof but his own statement that he was unaware of the enhanced penalty. The week before trial in this case, Lyles had gone through the same habitual-offender-sentence-enhancement procedure at a sentencing hearing after his conviction for false pretense.

¶ 17. Unlike Gowdy, Lyles had fair notice. Defendant Gowdy rejected a plea deal offering a capped one-year sentence in favor of a jury trial, not knowing the State intended to seek habitual-offender status until two months after the jury verdict, and just before the sentencing hearing. Gowdy, 56 So.3d at 544-45 (¶¶ 14-15). Here, the State had obtained Lyles’s criminal record at least two weeks before trial, and filed the motion to amend, which properly detailed all of Lyles’s offenses qualifying him for habitual-offender status. In Gowdy, the motion was filed two months after trial on the day of sentencing. Thus, Lyles received fair notice of the State’s intentions before trial and was not “unfairly surprised.” See McCain, 81 So.3d at 1062 (¶ 15).

¶ 18. Further, just because the trial court did not grant the amendment until after the conviction, does not mean Lyles did not receive proper notice. See Newberry v. State, 85 So.3d 884, 890 (¶¶ 14-15) (Miss.Ct.App.2012) (applying Gowdy, this Court found the trial court’s decision to withhold ruling on the State’s motion to amend the indictment to add habitual-offender status—until after defendant was convicted—did not result in unfair surprise). The trial judge specifically stated that he did not address motions to amend the indictment for sentencing “until' that need arises,” and commented that counsel was aware of this procedure. We find that the trial court did not err in granting the State’s motion to amend the indictment.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

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

      . In December 2012, the Mississippi Supreme Court granted Lyles permission to proceed in the trial court on post-conviction-relief proceedings regarding the issue of his amended indictment and any due-process violation.

      . Lyles had been convicted in a jury trial the previous week, before the same trial judge, on a charge of false pretense, and was sentenced to life imprisonment as a habitual offender. This Court affirmed the conviction in May 2009. See Lyles, 12 So.3d at 555 (¶ 17).


author: LEE, C.J.,

text:
    Mario RUCKER a/k/a Mario Terrell Rucker, Appellant v. STATE of Mississippi, Appellee.
    No. 2015-KA-00147-COA.
    Court of Appeals of Mississippi.
    June 21, 2016.
    Rehearing Denied Nov. 11, 2016.
    Certiorari Denied March 9, 2017.
    Office of State Public Defender by Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    • Before LEE, C.J., CARLTON and FAIR, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Mario Rucker was convicted of aggravated assault and sentenced as a habitual offender to life without parole in the custody of the Mississippi Department of Corrections. Rucker filed posttrial motions, which the trial court denied. Ruck-er now appeals, asserting that the trial court erred in sua sponte instructing the jury on aggravated assault.

FACTS

¶2. On September 28, 2012, Rucker admittedly stabbed William Nuby several times with a pair of scissors. The incident occurred at a Waffle House in Jackson, Mississippi. A Waffle House employee testified that he saw Rucker with the scissors prior to the stabbing. The employee asked Rucker why Rucker had the scissors, and Rucker responded, “I’m a use 'em.” Approximately forty minutes later, this same employee saw Rucker stab Nuby numerous times.

¶ 3. Rucker testified he stabbed Nuby after the two argued and Nuby “jumped at” him. Rucker stated that Nuby had been following him around that day and pestering him. Rucker said Nuby had accused him of wanting to have an affair with Nubjfs wife.

¶ 4. Nuby was transported to the hospital, where he died approximately two days later. The State’s forensic pathologist concluded that Nuby died from sharp-force injuries. Nuby had five wounds to his left shoulder and upper-back area. Rucker’s medical expert concluded that Nuby died due to an accident at the hospital, not from the stab wounds.

STANDARD OF REVIEW

¶ 5. A criminal defendant is entitled to jury instructions that present his theory of the case even if the supporting evidence “is weak, inconsistent, or of doubtful credibility.” Banyard, v. State, 47 So.3d 676, 682 (¶ 17) (Miss.2010) (quoting Ellis v. State, 778 So.2d 114, 118 (¶ 16) (Miss.2000)). But this right is not absolute. “[T]he court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Harris v. State, 861 So.2d 1003, 1012-13 (¶ 18) (Miss.2003) (quoting Austin v. State, 784 So.2d 186, 192 (¶ 18) (Miss. 2001)); see also Brown v. State, 39 So.3d 890, 898 (¶ 27) (Miss.2010). “[T]his Court reads the instructions together as a whole.” McKlemurry v. State, 947 So.2d 987, 990 (¶ 3) (Miss.Ct.App.2006). “No reversible error will be found to exist if, when read together, the instructions correctly state the law and effectuate no injustice.” Id.

DISCUSSION

¶ 6. In his only issue on appeal, Rucker argues that the trial court committed reversible error when it sua sponte instructed the jury on aggravated assault. However, the record indicates the trial court did not sua sponte instruct the jury on aggravated assault. Initially, Rucker submitted instruction D-7, which instructed the jury on murder, manslaughter, aggravated assault, and simple assault. Rucker also submitted separate instructions on self-defense, simple assault, and accident and misfortune. The State objected to Rucker’s inclusion of aggravated assault. Rucker then argued the following:

A reasonable jury could find that there was no nexus between the death and the stab wound, but that the stab wound was aggravated assault. There’s been plenty of evidence that would support an aggravated assault verdict. And we would stand by the verdict as to the necessity of an inclusion of an [aggravated] assault instruction.... And we believe that a reasonable jury could come back under the facts and circumstances of this case and the intervening acts that took place, [and find] that it was in fact aggravated assault and not murder.

The trial court then directed Rucker to provide an instruction that included the elements of aggravated assault. The trial court indicated it would take the matter under advisement. Rucker indicated the State was providing “the step down [instruction] from murder to second degree to manslaughter. We will pick up from there with [aggravated] assault for the court to consider.” Rucker then withdrew D-7 in order to make the changes. Ultimately, Rucker submitted instruction D-7D, which instructed the jury on manslaughter and aggravated assault. Instruction D-7D was given to the jury. The trial court also provided instruction C-10, which instructed the jury on the elements of aggravated assault, and C-12, which was a form-of-the-verdict instruction for murder, depraved-heart murder, manslaughter, aggravated assault, and simple assault. Athough the trial court did provide C-10, we would hardly describe this action as sua sponte due to the in-depth conversation concerning an aggravated-assault instruction between the trial court, the State, and Rucker. Ultimately, Ruck-er requested an instruction regarding aggravated assault. Thus, he waived any objection to the jury being instructed as such. See Moore v. State, 799 So.2d 89, 91-92 (¶¶ 9-11) (Miss.2001).

¶ 7. Rucker cites to Hye v. State, 162 So.3d 750, 751 (¶ 2) (Miss.2015), for the proposition that “a criminal defendant no longer has the unilateral right under Mississippi law to insist upon an instruction for lesser-related offenses which are not necessarily included in the charged offenses.” However, Rucker’s trial occurred in 2014, well before Hye became law; thus, we find Hye inapplicable to this case.

¶ 8. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE AS A HABITUAL OFFENDER OF LIFE WITHOUT PAROLE 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, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

      . After filing his appeal to this Court, Rucker filed a petition for a writ of habeas corpus and a petition for a writ of mandamus in the trial court. The trial court dismissed Ruck-er's petition, finding that Rucker was not entitled to relief since his direct appeal was pending. The trial court also noted that Rucker’s petition raised issues that were the subject of his direct appeal. Rucker then filed a supplemental brief with this Court arguing that the trial court should not have dismissed his petitions. In his supplemental brief, Rucker raises the same issue as in his initial brief.


text:
    Andre DOSS a/k/a Andre L. Doss a/k/a “Dre”, Appellant v. STATE of Mississippi, Appellee.
    No. 2015-KA-00756-COA.
    Court of Appeals of Mississippi.
    Aug. 9, 2016.
    Rehearing Denied Dec. 6, 2016.
    Certiorari Denied March 9, 2017.

      Office of State Public Defender by Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Abbie Eason Koonce, attorney for appellee.
    Before LEE, C.J., WILSON and GREENLEE, JJ.
   LEE, C.J.,

for the Court:

¶ 1. On February 10, 2015, Andre Doss was convicted in the Circuit Court of Jefferson County, Mississippi, of burglary of a dwelling with the intent to commit sexual battery and was sentenced to serve twelve years in the custody of the Mississippi Department of Corrections. On February 13, 2015, Doss filed a combined motion to set aside the sentence and motion for a judgment of acquittal notwithstanding the verdict as well as a motion for a new trial. Doss’s posttrial motions were denied. On appeal, Doss claims: (1) the evidence was insufficient to support the verdict; (2) the verdict was against the overwhelming weight of the evidence; and (3) the circuit court erred by failing to instruct the jury on the elements of the intended crime of sexual battery. Finding no error, we affirm.

FACTS

¶2. Georgia Ford testified that on the evening of July 4, 2014, she worked a concession stand at a rodeo in Natchez, Mississippi. Georgia returned to her house in Fayette, Mississippi, between 3:10 a.m. and 3:20 a.m. on July 5. She had not invited anyone over, and was not expecting any company other than her son, Victor, who lived with her. After unloading her vehicle and changing clothes, Georgia fell asleep on the couch. The front door to the house was not locked.

¶ 3. Georgia woke up to Doss standing over her—naked and rubbing her hips. Georgia asked: “Dre, what [are] you doing in my house?” As Doss was fleeing, Georgia asked again: “Dre, what [are] you doing in my house?” Victor testified that he ran out of his bedroom when he heard Georgia scream. Georgia and Victor went to the door, where they heard rustling in the bushes and the neighbor’s dog barking. They decided to drive around to look for Doss, but they did not find him.

¶ 4. Georgia testified that when she initially returned home from the rodeo, the outside light was on. However, when she and Victor went to the front door after Doss fled, Georgia noticed that the light was no longer on. When Georgia and Victor returned home from looking for Doss, Victor realized that the lightbulb had been unscrewed. Victor screwed the light-bulb back in, and the light came back on.

¶ 5. With the light back on, Georgia looked down by the hedges and noticed a pair of men’s underwear. She picked them up but threw them back down because there were “stains” on them. It was later determined that Doss’s semen was on the underwear. Subsequently, Victor called 911. While Victor was on the phone, someone banged on the door and turned the doorknob. However, the identity of the person is unknown.

¶ 6. Doss testified that he and Georgia were engaged in a secret relationship. Doss had previously dated Georgia’s sister, and said that was the reason no one knew about his relationship with Georgia. He stated that Georgia would give him a specific time, always late at night, to come over, and he would hitchhike or catch rides to Georgia’s house.

¶ 7. Doss stated that he visited Georgia and had sex with her at her house a few days prior. Therefore, he acknowledged that it was possible that his pair of underwear was at Georgia’s house, and that more clothing could be found. But Doss said that on July 4, he attended a barbeque until 9 p.m. Then he had a couple of drinks and played video games at his mother’s house, where he lived, until he fell asleep at 6 a.m. on July 5. Doss’s mother testified that when she got home from work, around 4:10 a.m., Doss was playing video games. However, on cross-examination, she admitted that she did not know where Doss had been before she got home from work.

¶ 8. Georgia denied any relationship with Doss and stated that Doss had never been in her house. Likewise, Victor did not know of any romantic involvement between Georgia and Doss.

DISCUSSION

I. Sufficiency of the Evidence

¶ 9. When determining whether the State presented legally sufficient evidence to support the verdict, “the critical inquiry is whether the evidence shows 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!.]” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id. “During the trial, the jury is charged with the responsibility of weighing and considering the conflicting evidence of the witnesses and determining whose testimony should be believed.” Winters v. State, 814 So.2d 184, 187 (¶ 9) (Miss.Ct.App.2002) (citation omitted).

¶ 10. Mississippi Code Annotated section 97-17-23(1) (Rev.2014) states that burglary of a dwelling is the “breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein.... ” Doss argues the State did not prove he broke and entered Georgia’s house or that he intended to commit sexual battery.

¶ 11. Considering the evidence in the light most favorable to the State, we find there was sufficient evidence to convict Doss of burglary of a dwelling with the intent to commit sexual battery. Georgia testified that the front door was closed but unlocked. “It is well-established in Mississippi that a breaking is conducted by an act of force, regardless of how slight, necessary to be used in entering a building, such as turning a knob, a slight push to further open a door, or raising a latch.” Davis v. State, 910 So.2d 1228, 1231 (¶ 8) (Miss.Ct.App.2005) (citation omitted). Georgia also testified that she fell asleep on the couch and then woke up to Doss standing over her—naked and rubbing her hips. When she asked Doss what he was doing, he fled. A DNA test confirmed that the semen found on the underwear in Georgia’s yard belonged to Doss. And both Georgia and her son, Victor, testified that the outside light was off because the lightbulb had been unscrewed.

¶ 12. Although Doss testified that he and Georgia were involved in a relationship, no other witnesses or evidence provided additional support for this claim. Doss also testified that he would catch rides to Georgia’s house, but none of the individuals who ever dropped Doss off at Georgia’s house testified. Georgia denied the relationship, and Victor stated that he did not know of a relationship between Georgia and Doss. Georgia also stated that this was the first time Doss had been in her house, which was supported by Victor’s testimony that he had never seen Doss inside of the house.

¶ 13. Doss also testified that, on the night of July 4, he went to a barbeque, had a few drinks, and then played video games until 6 a.m. on July 5. Doss’s mother testified in his defense, but she admitted that she did not have knowledge of Doss’s whereabouts before she got home from work, which was around 4:10 a.m.

¶ 14. In light of these facts, we find that any rational juror could have found beyond a reasonable doubt that all the elements had been met by the State in proving burglary of a dwelling. Furthermore, we find there was sufficient evidence that Doss had the intent to commit sexual battery. “Intent is an emotional operation of the mind, and is usually shown by acts and declarations of the defendant coupled with facts and circumstances surrounding him at the time.” Newburn v. State, 205 So.2d 260, 265 (Miss.1967). “[A djefen-dant’s intention is manifested largely by the things he does.” Id. This issue is without merit.

II. Overwhelming Weight of the Evidence

¶ 15. “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.” Bush, 895 So.2d at 844 (¶ 18). The evidence is viewed in the light most favorable to the verdict. Id. From the evidence previously described, we cannot find that allowing the verdict to stand would sanction an unconscionable injustice.

III. Jury Instruction on Elements

¶ 16. The jury was instructed on the essential elements of the crime of burglary—(1) “breaking and entering the dwelling house or inner door of such dwelling house of another”; and (2) “with the intent to commit some crime therein.” Miss.Code Ann. § 97-17-23(1). In addition, the jury instructions specifically identified sexual battery as the crime Doss intended to commit vis-a-vis the burglary. See id. Doss argues that the jury should also have been instructed on the elements of the intended crime of sexual battery.

¶ 17. We review Doss’s claim for plain error, which “requires the finding of not only an error, but one that resulted in a ‘miscarriage of justice’ affecting the defendant’s fundamental rights.” Windless v. State, 185 So.3d 956, 961 (¶ 11) (Miss. 2015).

¶ 18. In Windless and Quinn v. State, 191 So.3d 1227 (Miss.2016), our supreme court addressed arguments very similar to Doss’s argument here. Windless argued the trial judge failed to instruct the jury on the elements of larceny as the “underlying offense” of the burglary. Windless, 185 So.3d at 960 (¶ 9). And Quinn argued the trial judge failed to instruct the jury on the elements of assault. Quinn, 191 So.3d at 1232 (¶ 20). “Our caselaw holds that only the intent to commit some crime need be proven in order to establish the second element of burglary—the State need not also prove the elements of that intended crime.” Id. at 1233 (¶ 24) (emphasis in original). The supreme court stated that “larceny” is commonly understood to mean stealing, and “assault” is commonly understood to mean causing or attempting to cause bodily injury to another. Id. at (¶25). Likewise, we believe “sexual battery” is commonly understood to mean sexual penetration with another person without his or her consent.

¶ 19. The State submitted sufficient evidence for the jury to find that Doss broke into and entered Georgia’s house with the intent to commit sexual battery. See id. This issue is without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JEFFERSON COUNTY.

IRVING and GRIFFIS, P.JJ, BARNES, ISHEE, CARLTON, FAIR, JAMES, WILSON and GREENLEE, JJ., concur.

      . Georgia stated that she only knew Doss by the nickname "Dre” and that she knew him through her sister.

      . At some point, the pair of underwear was moved into the house.

      . The court reporter informed this Court that the jury-instructions conference was not recorded. Therefore, a transcript is not available for review. The State makes the following assumption: ''[S]ince there was no proposed jury instruction submitted by the defense containing the elements of [sexual battery], there would have been no objection to the instructions on this point." And Doss "submits that the trial court plainly erred by failing to instruct the jury on the essential elements of the underlying crime of sexual battery.” (Emphasis added). For these reasons, we review this issue for plain error.