author: WILSON, J., FOR THE COURT:

text:
    George HUEY, Appellant v. RGIS INVENTORY SPECIALISTS and Fidelity & Guaranty Insurance Company, Appellees
    NO. 2017-WC-00524-COA CONSOLIDATED WITH NO. 2013-CT-00310-COA
    Court of Appeals of Mississippi.
    April 24, 2018 Rehearing Denied September 4, 2018
    ATTORNEY FOR APPELLANT: T. JACKSON LYONS, JACKSON
    ATTORNEYS FOR APPELLEES: JEFFREY STEPHEN MOFFETT, RIDGELAND, CHRISTOPHER MICHAEL GRAVES, BILOXI
    BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. George Huey was injured in a car wreck while traveling through Alabama for work. Huey's employer, RGIS Inventory Specialists, took the position that Huey was not entitled to workers' compensation benefits because prior to the wreck he had deviated from the course and scope of his employment by becoming embroiled in a "road rage" incident with another motorist. The Workers' Compensation Commission ultimately denied Huey's claim for benefits on that ground, this Court affirmed, and the Mississippi Supreme Court denied Huey's petition for a writ of certiorari. Huey v. RGIS Inventory Specialists , 168 So.3d 1145 (Miss. Ct. App.) ( Huey I ), cert. denied , 152 So. 3d 1176 (Miss. 2014).

¶ 2. Just under a year after the appellate mandate issued in Huey I , Huey filed a motion asking the Commission to reopen his claim. Huey alleged that his claim had been denied based on a mistake in a determination of fact because new evidence showed that prior testimony about the wreck was unreliable. The Commission denied Huey's motion after finding (1) that the motion was untimely because it was filed more than one year after the Mississippi Supreme Court denied certiorari in Huey I and (2) that Huey failed to present any "newly discovered evidence" and failed to show any mistaken determination of fact.

¶ 3. We affirm the decision of the Commission. Huey's motion to reopen was timely; however, we affirm the Commission's ruling on the merits.

FACTS AND PROCEDURAL HISTORY

¶ 4. On January 19, 2009, Huey was driving an RGIS van to Tennessee to conduct an inventory audit. On Interstate 59/20 near Livingston, Alabama, he encountered a car driven by Edwin Crawley. While Huey was trying to change lanes, his van nearly collided with Crawley's car. The near miss forced Crawley to swerve and "spin out" off the interstate before regaining control of his car. This set in motion a series of events that ultimately gave rise to Huey's claim. In our prior opinion, we described those events as follows:

[Crawley] began pursuing Huey. According to Huey's testimony ... it took Crawley approximately ten to fifteen minutes to catch up to him. Crawley passed Huey and moved into Huey's lane. Crawley then slowed down and forced Huey to stop his van. The record indicates that Huey and Crawley were stopped either partially or entirely in the right lane of the interstate. It is undisputed that Huey had enough room to drive around Crawley's car.... Huey [testified] that he was looking for the button to activate his flashers, and he had not come to a complete stop, when he was struck from behind by an eighteen-wheeler truck. Huey injured his back in the collision.
Alabama State Trooper Keith Wilson responded to the scene. According to Trooper Wilson, Crawley told him that Huey had been speeding past him and then slamming on his brakes. Crawley added that Huey had done so "for several miles." However, Huey told Trooper Wilson that Crawley had been doing the same thing to him. That is, Huey said that Crawley had been passing him, and then Crawley had been slamming on his brakes while he had been driving in front of Huey. Trooper Wilson later testified during a deposition that both Huey and Crawley admitted to him that they had been driving aggressively.

Huey I , 168 So.3d at 1147 (¶¶ 3-4).

¶ 5. Based in part on Trooper Wilson's testimony, the Commission found that Huey had parked his van in the right-hand lane of the interstate as part of a "road rage" incident with Crawley. Thus, the Commission found that Huey had departed from the scope and course of his employment, so his injury was not compensable. On appeal, this Court stated that "the record support[ed] more than one possible explanation for why Huey stopped his van." However, we found that "[i]t was within the Commission's discretion to accept Trooper Wilson's testimony" and to then find that a road rage incident was "the best and most reasonable explanation for an individual parking his vehicle in the right-hand lane of an interstate highway." Id. at 1148 (¶ 8) (brackets omitted). This Court also concluded that the Commission was not required to accept Huey's version of events, and we noted that "Huey's version of the events changed to some extent at least twice, and it became more favorable to his claim each time he changed it." Id. at (¶ 9).

¶ 6. Huey continues to dispute the Commission's findings in Huey I. Huey maintains that Crawley sped to catch up with him after their initial near-collision because Crawley thought something was wrong with Crawley's car and he wanted Huey to pull over. Huey denies that there was any "road rage" incident; instead, he maintains that as he slowed down behind Crawley to pull off the interstate, the tractor-trailer struck his van from behind.

¶ 7. While his worker's compensation claim was pending before the Commission, Huey filed suit in Alabama state court against the driver of the tractor-trailer, Kenneth Dale Conner, and Dean Foods and Barber Milk, whom we assume to be Conner's employers and/or the owners of the tractor-trailer. Huey alleges that he first learned during discovery in the Alabama case that his van and the tractor-trailer had computers known as "black boxes" that recorded information about the vehicles' speeds near the time of the collision. Huey claims that the information from the black boxes indicates that his van was still moving at the time of the collision and was not parked in the right lane of the interstate.

¶ 8. On January 4, 2016, Huey filed a motion to reopen his workers' compensation case. In support of his motion, he submitted deposition testimony of two accident reconstruction experts from the Alabama litigation. One expert, Dr. Preston Scarber Jr., testified that data from the black box in Huey's van indicated that the van was traveling about seventeen miles per hour when it was struck by the tractor-trailer, which was traveling approximately sixty miles per hour. Scarber also testified that the force from the collision increased Huey's van's speed to more than thirty miles per hour before the van collided with Crawley's vehicle. Scarber believed that Crawley's vehicle was stopped or very nearly stopped when it was struck by Huey's van. Scarber disagreed with Trooper Wilson's version of events. Scarber testified that black box data and photographs did not support Trooper Wilson's conclusions.

¶ 9. The administrative judge found that Huey's case should be reopened due to new evidence and facts. However, on appeal to the full Commission, the Commission reversed and denied Huey's motion to reopen for two reasons. First, the Commission found that the motion was untimely because a motion to reopen must be filed, as relevant in this case, "prior to one ... year after the rejection of a claim." Miss. Code Ann. § 71-3-53 (Rev. 2011). Huey's motion was filed less than one year after the appellate mandate issued in Huey I , but it was filed more than a year after the Mississippi Supreme Court denied certiorari. See Huey v. RGIS Inventory Specialists , MWCC No: 0904755K7478, 2017 WL 6617668, at *2 (Miss. Workers' Comp. Comm'n Mar. 22, 2017).

¶ 10. Second, the Commission also denied Huey's motion on the merits. The Commission found that Huey's new evidence was "not newly discovered evidence since the [black boxes] had been available for inspection since the date of the accident." The Commission also found that Huey failed to show that the Commission's decision in Huey I was based on "a mistake in a determination of fact as required by [ section] 71-3-53." See id. at *3.

¶ 11. On appeal, Huey argues that his motion to reopen was timely because section 71-3-53's one-year statute of limitations did not commence until the appellate mandate issued in Huey I . Huey also argues that the rejection of his claim in Huey I was based on a "mistake"-namely, the Commission's reliance on Trooper Wilson's testimony, which, according to Huey, is refuted by new evidence. We address these issues in turn.

ANALYSIS

¶ 12. In general, this Court's "review 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." Gregg v. Natchez Trace Elec. Power Ass'n , 64 So.3d 473, 475 (¶ 8) (Miss. 2011). However, we review issues of law de novo. See id. at 475-76 (¶ 9).

¶ 13. Section 71-3-53 grants the Commission authority to reopen a compensation case under certain circumstances:

Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may , at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case....

Miss. Code Ann. § 71-3-53 (emphasis added).

¶ 14. As the statute's language makes clear, "[t]he statute is not mandatory." Ga.-Pac. Corp. v. Gregory , 589 So.2d 1250, 1254 (Miss. 1991). "Rather, '[i]t is discretionary with the [C]ommission whether or not it will reopen a case.' " Id. (quoting Vardaman S. Dunn, Mississippi Workers' Compensation § 336, at 424-25 (3d ed. 1982) ). "So long as its discretion is not abused, this Court will not interfere. In short, if there is any reasonable basis upon which the [decision of the] Commission may have been justified ..., its decision will be affirmed." Armstrong Tire & Rubber Co. v. Franks , 242 Miss. 792, 799, 137 So.2d 141, 144 (1962) (citations omitted); see also Smith v. CompFirst/L.C. Indus. , 186 So.3d 873, 877 (¶ 13) (Miss. Ct. App. 2015) ("[S]ection 71-3-53 does not create a right for any interested party to reopen a claim. This section instead gives the Commission discretionary authority to reconsider a claim." (citation omitted) ), cert. denied , 186 So.3d 854 (Miss. 2016).

I. Timeliness

¶ 15. As described above, the Mississippi Supreme Court denied certiorari in Huey I on December 11, 2014, and the appellate mandate issued on January 5, 2015. Section 71-3-53 permits the Commission to review and reopen a case "at any time prior to one ... year after the rejection of a claim ...." Huey filed his motion to reopen on January 4, 2016-or 364 days after the mandate issued in Huey I. In denying Huey's motion as untimely, the Commission reasoned that "[t]here was no additional action [that Huey] could [have] take[n] beyond December 11, 2014, [to] further appeal [the rejection of his] claim." The Commission therefore concluded that Huey's claim was finally rejected on the day that the Mississippi Supreme Court denied certiorari in Huey I. We disagree.

¶ 16. There are no appellate decisions that address the precise issue before us: the date on which a claim on appeal from the Commission is rejected for purposes of triggering section 71-3-53's one-year statute of limitations. However, in Harper v. Cal-Maine Foods Inc. , 43 So.3d 401 (Miss. 2010), the Supreme Court held "the statute of limitations for a bad-faith claim against an employer or insurance company for failure to pay [workers' compensation] benefits begins to run when the Commission renders final judgment." Id. at 403 (¶ 6). In a footnote, the Court further stated that if an appeal is taken from "the Commission's final judgment, the statute of limitations does not begin to run until a final mandate has issued from the appeals process. " Id. at 403 n.3 (emphasis added); accord Hardaway v. Howard Indus. Inc. , 211 So.3d 718, 722 (¶ 16) (Miss. Ct. App. 2016), cert. denied , 209 So.3d 431 (Miss. 2017).

¶ 17. We see no reason to adopt a different triggering event for the statute of limitations for a motion to reopen under section 71-3-53. The issuance of the mandate provides a clear event to commence the running of the statute of limitations in all cases that are appealed from the Commission. Therefore, we hold that when there is an appeal from a final judgment of the Commission, the claim is not finally rejected for purposes of section 71-3-53, and "the statute of limitations does not begin to run[,] until a final mandate has issued from the appeals process." Harper , 43 So.3d at 403 n.3. Accordingly, Huey filed his motion to reopen within section 71-3-53's one-year statute of limitations.

II. Mistake of Fact

¶ 18. Huey asserts that "black box" data and expert testimony interpreting it shows that the Commission's original decision denying his claim was based on a mistake in a determination of fact. He argues that this evidence refutes Trooper Wilson's conclusions about the collision. Specifically, he argues that data retrieved from his van's black box indicates that the van was still moving at the time of the collision, whereas Trooper Wilson testified that Huey had come to a complete stop in the right lane of the interstate. Huey argues that evidence contradicting Trooper Wilson's testimony on this point calls into question all of Trooper Wilson's conclusions about the collision, including the conclusion that it arose out of some sort of road rage incident. This, according to Huey, is the mistake in fact: that Trooper Wilson's testimony and conclusions were reliable.

¶ 19. The Commission found that Huey failed to demonstrate a mistake in a determination of fact, as required by section 71-3-53. The Commission stated that the new evidence on which Huey relied was "not newly discovered evidence since the [black boxes had] been available for inspection since the date of the accident," but Huey failed to request them or analyze them for use in his workers' compensation case. The Commission also stated that the basis of its original decision in this case had been that Huey "engaged in a personal altercation for several miles along the Interstate," which "was found to be a deviation which removed [him] from the course and scope of his employment." The Commission concluded that Huey had not shown that this basic premise of its original decision was a mistake.

¶ 20. As discussed above, section 71-3-53 does not mandate that any case be reopened but only provides that the Commission "may" do so in its discretion. Gregory , 589 So.2d at 1254 ; Smith , 186 So.3d at 877 (¶ 13). "So long as [that] discretion is not abused, this Court will not interfere." Franks , 242 Miss. at 799, 137 So.2d at 144. We find no abuse of discretion on the part of the Commission in this case. To begin with, we do not believe that the Commission abused its discretion by declining to reopen the case based on evidence that could have been produced at the original hearing. As our Supreme Court and this Court have stated, "an allegation of mistake should not be allowed to become a backdoor route to re-trying a case because one party thinks he can make a better showing on the second attempt." J.R. Logging v. Halford , 765 So.2d 580, 584 (¶ 18) (Miss. Ct. App. 2000) (emphasis omitted) (quoting Bailey Lumber Co. v. Mason , 401 So.2d 696, 704 (Miss. 1981) ).

¶ 21. Moreover, the basic premise of the Commission's original decision denying Huey's claim was its finding that Huey deviated from the course and scope of his employment to engage in a "road rage" incident with Crawley. The black box data and expert testimony submitted in support of Huey's motion to reopen do not disprove this premise. The main import of this new evidence seems to be that Huey's van was still moving-albeit very slowly-in the right lane of the interstate and was not completely stopped and parked, as Trooper Wilson had surmised. The new evidence does not and cannot address why Huey was driving only seventeen miles per hour in the right-hand lane of an interstate highway with a speed limit of seventy miles per hour. The main issue in this case has always been whether Huey's actions were part of a road rage incident, a deviation from the course and scope of his employment. Consistent with the Commission's original decision, Huey could have been slowing to confront Crawley as part of a road rage incident. The fact that Huey's van was moving very slowly-and not yet at a full stop-does not necessarily change the outcome of the case. Therefore, we cannot say that the Commission abused its discretion by finding that Huey failed to show "a mistake in a determination of fact." Miss. Code Ann. § 71-3-53.

CONCLUSION

¶ 22. Huey's motion to reopen was timely, but the Commission's decision denying the motion on its merits was not an abuse of discretion. Therefore, the decision of the Commission is AFFIRMED .

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

      As a technical matter, this is not entirely accurate. Huey could have filed a petition for a writ of certiorari in the United States Supreme Court, although it would have been futile because Huey I did not raise any federal question.


source: Caselaw Access Project

author: TINDELL, J., FOR THE COURT:

license: Public Domain

text:
    Torey Patshawn HUBBARD a/k/a Torey Hubbard a/k/a Torey P. Hubbard, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00202-COA
    Court of Appeals of Mississippi.
    May 8, 2018 Rehearing Denied August 28, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER
    BEFORE LEE, C.J., BARNES AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. A Grenada County grand jury indicted Torey Hubbard for burglary of a dwelling. See Miss. Code Ann. § 97-17-23(1) (Rev. 2014). After a jury convicted Hubbard, the Grenada County Circuit Court sentenced him to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with the sentence to run consecutively to any previously imposed sentences. On appeal, Hubbard argues the circuit court erroneously allowed the State to amend his indictment. Finding no error, we affirm Hubbard's conviction and sentence.

FACTS

¶ 2. Around 6:30 p.m. on August 13, 2016, Bernice Freelon returned home after attending a birthday party. Freelon testified that she had left her house door closed but unlocked, and as she entered her home, she saw someone run from her kitchen to another room. Thinking the person might be a relative, Freelon entered the other room and discovered an intruder. Freelon recognized the intruder as Hubbard. Freelon testified that Hubbard held a t-shirt and another item in his hand and that he stated Freelon's door had been unlocked. Freelon testified that she had never invited Hubbard into her home and that she was afraid upon discovering him there. Freelon ran out the front door of her home, and she stated that Hubbard ran out the back door. Several days after the burglary, Freelon found a white t-shirt and a flashlight in her backyard. Freelon identified the flashlight as hers and testified that she kept the flashlight inside her home.

¶ 3. On direct examination, Freelon stepped down from the witness stand and positively identified Hubbard as the burglar she encountered in her home. Freelon testified that she recognized Hubbard at the time of the burglary because she had spoken to him earlier that morning. According to Freelon, she had been hanging up clothes in her yard the morning of the burglary when she noticed Hubbard at the back of her property. Freelon testified that she went to see what Hubbard was doing and that she asked him several questions. Freelon also testified that she had seen Hubbard in her yard on three separate occasions prior to the day of the burglary.

¶ 4. Hubbard testified on his own behalf and denied that he broke into Freelon's home on August 13, 2016. Hubbard stated that he was at his aunt's house from the evening of August 12, 2016, until the evening of August 14, 2016, and that his cousin then spent the night at his house on August 14, 2016. Hubbard admitted on cross-examination that neither his aunt nor his cousin was at trial to corroborate his alibi. According to Hubbard, neither his aunt nor his cousin "like[d] court." When asked whether he told the police about his alibi for the burglary, Hubbard replied that the police did not want to hear anything he had to say and that they never asked him about the witnesses.

¶ 5. After considering both Freelon's and Hubbard's testimonies, the jury found Hubbard guilty of burglary. The circuit court then sentenced Hubbard to fifteen years in MDOC's custody, with the sentence to run consecutively to any previously imposed sentences. Hubbard filed an unsuccessful motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. Aggrieved, Hubbard appeals.

DISCUSSION

¶ 6. Hubbard's indictment initially charged him with committing burglary "on or about August 14, 2016[.]" After voir dire, the State moved to amend the date of the offense to "on or about August 13, 2016[.]" Overruling the defense's objection that the change constituted a substantive amendment, the circuit court granted the State's motion. On appeal, Hubbard renews his trial objection and argues the circuit court erred by granting the State's motion because the amendment unfairly surprised him and prejudiced his defense.

¶ 7. As this Court recently explained:

The issue of whether an indictment is fatally defective is a question of law and warrants a broad standard of review by this Court. Since this issue is a question of law, the standard of review is de novo. The purpose of an indictment is to inform the defendant with some measure of certainty as to the nature of the charges brought against him so that he may have a reasonable opportunity to prepare an effective defense. The indictment shall contain the essential facts constituting the offenses charged and shall fully notify the defendant of the nature and cause of the accusation.

Travelstead v. State , 232 So.3d 752, 758 (¶ 16) (Miss. Ct. App. 2017) (quoting Jones v. State , 993 So.2d 386, 394 (¶ 19) (Miss. Ct. App. 2008) ).

¶ 8. Hubbard correctly asserts that the circuit court lacked the authority to grant a substantive amendment to his indictment. See id. at (¶ 19). However, "the Mississippi Supreme Court has held that[,] 'unless time is an essential element or factor in the crime, an amendment to change the date on which the offense occurred is one of form only.' " Id. (quoting Conley v. State , 790 So.2d 773, 781 (¶ 16) (Miss. 2001) ). The grand jury indicted Hubbard for burglary of a dwelling, which includes the following elements: (1) "breaking and entering the dwelling house or inner door of such dwelling house of another" (2) "with the intent to commit some crime therein." Heisser v. State , 213 So.3d 544, 547 (¶ 14) (Miss. Ct. App. 2016) (quoting Miss. Code Ann. § 97-17-23(1) ). Because time was not an essential element of the burglary for which Hubbard was indicted, we find the amendment to Hubbard's indictment constituted one of form rather than of substance.

¶ 9. In addition, we find no evidence of prejudice to Hubbard's defense based on the amended indictment. Serving as the defense's sole witness, Hubbard testified that he was at his aunt's house from August 12, 2016, until the evening of August 14, 2016, and that his cousin then spent the remainder of August 14, 2016, at his house. Hubbard also explained that his aunt and cousin were not present at trial to testify and corroborate his story because they did not like court. Thus, regardless of whether the indictment charged that the burglary occurred on August 13, 2016, or August 14, 2016, the record reflects that Hubbard's defense and the witnesses testifying on his behalf remained the same. And as our caselaw holds, "[r]eversal is not necessary where the same defense and the same witnesses are available for both the original date and the amended date on the indictment." Jones , 993 So.2d at 394 (¶ 21) (quoting Givens v. State , 730 So.2d 81, 88 (¶ 22) (Miss. Ct. App. 1998) ).

CONCLUSION

¶ 10. Because the amendment to Hubbard's indictment was one of form rather than substance and his defense under the amended indictment remained the same, we find no error in the circuit court's grant of the State's motion to amend Hubbard's indictment.

¶ 11. AFFIRMED.

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

      Hubbard also states in his appellate brief that, should this Court deny his requested relief, he "reserves the right to raise any issues related to ineffective assistance of trial counsel that are not fully apparent from the record." We acknowledge that Hubbard remains free to assert any claims of ineffective assistance later in a properly filed motion for postconviction relief. See Johnson v. State , 191 So.3d 732, 735-36 (¶ 13) (Miss. Ct. App. 2015). We therefore decline to address this matter on direct appeal.


author: GREENLEE, J., FOR THE COURT:

text:
    Clifford C. FRISBY and Oasis Real Estate Investment, Inc., Appellants v. Ferrell "BJ" WARDEN, Appellee
    NO. 2017-CA-00548-COA
    Court of Appeals of Mississippi.
    May 8, 2018 Rehearing Denied September 4, 2018
    ATTORNEY FOR APPELLANTS: MICHAEL JOSEPH YENTZEN, Biloxi
    ATTORNEYS FOR APPELLEE: JAMES F. THOMPSON, WILLIAM W. DREHER JR., Gulfport
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. Clifford C. Frisby appeals from the Harrison County Chancery Court's finding that three handwritten documents were enforceable contracts between Frisby and Ferrell Warden for the sale of a home to Warden. The documents provided for credit toward the purchase price of the property in exchange for work performed by Warden. The chancellor ordered specific performance by Frisby and that Warden pay the remaining amount owed. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Oasis Real Estate Investment, Inc. is a Mississippi Corporation. Frisby is its president and owner. In June 2010, Frisby acquired the property through a quitclaim deed from Michael Neill. In 2011, Frisby allowed Warden to move into this property. On February 9, 2015, Frisby filed an eviction action against Warden in justice court. On March 19, 2015, in response to the eviction action, Warden filed a "Petition To Enforce Purchase Contract and Stay Proceedings" against Frisby and Oasis in chancery court. Warden sought enforcement of three handwritten contracts between himself and Frisby for purchase of the property. In support of his petition, Warden attached three handwritten documents that were apparently signed by both parties. The documents detailed work that Warden performed for Frisby, and indicated that Warden's work would count toward the $24,000 purchase price of the property. Warden also sought a stay of the justice court eviction proceedings during the pendency of the chancery court proceedings.

¶ 3. On May 12, 2015, Frisby answered Warden's petition with a motion to dismiss, a motion to deny stay of eviction, and a counterclaim for fraud alleging that his signatures on the agreements were forgeries. He further requested monetary damages for fraud, slander of title, and attorney's fees. On July 15, 2015, the chancellor heard Frisby's motion to dismiss and motion to deny stay of eviction, ultimately denying both of Frisby's motions. The chancellor also transferred the justice court eviction action and consolidated it with Warden's enforcement-of-contract action in the chancery court.

¶ 4. On August 2, 2016, and September 8, 2016, the chancellor held a hearing on the consolidated matter. Warden introduced duplicates of the three alleged contracts and called four witnesses, including Frisby as an adverse witness. Frisby called six witnesses, including an expert in forensic document examination. At the close of the testimony, the chancellor verbally ordered Frisby to specifically perform on the three contracts and ordered Warden, based on the amounts previously paid pursuant to the contracts, to pay $11,300 as full and final payment toward the purchase price of the property. A final judgment reflecting her verbal order was entered on October 4, 2016. Aggrieved, Frisby filed an unsuccessful motion for reconsideration and to set aside the judgment.

¶ 5. Frisby timely appeals from the final judgment and denial of his motion for reconsideration. Frisby raises five issues: (1) whether the chancellor erred in allowing duplicates of the handwritten documents into evidence; (2) whether the chancellor erred in placing the burden of proof on Frisby to prove his fraud allegation; (3) whether Warden carried his burden of proof; (4) whether the chancellor erred in finding that Warden detrimentally relied on Frisby's promise; and (5) whether Frisby presented sufficient evidence to prevail on his fraud claim.

STANDARD OF REVIEW

¶ 6. This Court employs a limited standard of review in reviewing a chancellor's decision. Reddell v. Reddell , 696 So.2d 287, 288 (Miss. 1997). Thus, the chancellor's findings of fact will not be disturbed upon review unless they were manifestly wrong, clearly erroneous, or the chancellor applied the wrong legal standard. Powell v. Meyer , 203 So.3d 648, 652 (¶ 16) (Miss. Ct. App. 2016). Further, the "standard of review for the trial court's admission or suppression of evidence, including expert testimony, is abuse of discretion." Tunica Cty. v. Matthews , 926 So.2d 209, 212 (¶ 5) (Miss. 2006). Questions of law, however, are reviewed de novo. Tillman v. Mitchell , 73 So.3d 556, 558 (¶ 8) (Miss. Ct. App. 2011).

DISCUSSION

I. Whether the chancellor erred in admitting the handwritten agreements into evidence.

¶ 7. Frisby asserts that the chancellor improperly admitted the disputed handwritten contracts into evidence. According to Frisby, these documents were duplicates of original handwritten documents that he never signed. Therefore, he argues that pursuant to Mississippi Rules of Evidence 1002 and 1003, the duplicates were inadmissible because there was a genuine question as to their authenticity. In response, Warden asserts Frisby has offered nothing to show that the chancellor abused her discretion nor that any substantial right has been affected. A review of the record indicates that the chancellor, in denying Frisby's motion for reconsideration, explained the handwritten contracts were admitted into evidence pursuant to Mississippi Rule of Evidence 1004(c). We find this determination was not manifest error.

¶ 8. Frisby correctly asserts that pursuant to Rule 1002, known as the best-evidence rule, an original writing is generally required to prove its contents. Further, pursuant to Rule 1003, Frisby correctly asserts that a duplicate cannot be admitted when a genuine issue has been raised about the original's authenticity. However, an exception to the best-evidence rule exists when the party against whom the original would be offered had control of the original, received notice that the original would be subject to proof at trial, and failed to produce the original at trial. M.R.E. 1004(c).

¶ 9. In the present case, Warden introduced duplicates of three handwritten documents into evidence in support of his complaint for specific performance. Frisby initially objected to their introduction, but allowed them to be introduced "for the purpose of this hearing," while still contesting their authenticity. Thus, the hearing proceeded to determine the authenticity of the alleged contracts, with both parties presenting multiple witnesses.

¶ 10. During the hearing, Frisby testified as an adverse witness and explained that he had never seen the three alleged contracts before and that Warden had never been to his office. However, Warden testified that he drafted all three of the handwritten documents "so that [he] could have some kind of documentation on a deal [they] had on the house." Further, Warden testified that while he originally had the original documents, he met Frisby at Frisby's office, where Frisby made copies of the documents and retained the originals, and gave Warden copies. Michael Neill, the previous owner of the property, also testified for Warden. He testified that he deeded the property to Frisby in 2010, and that when he spoke with Warden in 2011 or early 2012, Warden said he was buying the house from Frisby and "doing odd jobs" to pay off the house. Further, Neill testified that he saw Frisby sign a document in 2014, but that he did not know the document's purpose. Neill later testified that he had overheard Frisby and Warden discussing ownership of the house for labor.

¶ 11. As previously mentioned, the admission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of discretion. Tunica Cty. , 926 So.2d at 212 (¶ 5). Further, "the chancellor sits as the fact finder and is the sole judge of the credibility of a witness when resolving factual disputes." Stokes v. Campbell , 794 So.2d 1045, 1048 (¶ 11) (Miss. Ct. App. 2001). As such, it was the chancellor's job as trier of fact to determine which version she found more credible. LeBlanc v. Andrews , 931 So.2d 683, 689 (¶ 19) (Miss. Ct. App. 2006). The chancellor, after hearing all the evidence, accepted Warden's testimony as the most credible, admitting the duplicates pursuant to Rule 1004(c). Because there was substantial credible evidence in the record to support the chancellor's finding, this Court must accept them. Accordingly, this issue is without merit.

II. Whether the chancellor incorrectly placed the burden of proof of the fraud allegations on Frisby.

¶ 12. Next, Frisby argues that the chancellor erroneously presumed that the disputed documents were authentic, which incorrectly shifted the burden to Frisby to prove his fraud claim by clear and convincing evidence. However, a review of the record indicates that the chancellor, after hearing evidence by both parties, found that the contracts were valid and enforceable and that Frisby failed to establish that the signatures were a product of fraud.

¶ 13. Although Frisby is correct that "under Mississippi law ... the burden of proof rests on the claimant," the record reveals that Frisby, as part of his answer to Warden's petition to enforce the contracts, asserted a counterclaim for fraud, alleging that Warden forged Frisby's name on the three contracts. A claim of "fraud has to be clearly alleged, and, on hearing, there is a presumption against fraud , and the facts and circumstances relied upon and alleged must be proved by clear and convincing evidence." Clement v. R.L. Burns Corp. , 373 So.2d 790, 795 (Miss. 1979) (emphasis added). Therefore, while Warden had a burden to prove the contracts were enforceable, Frisby, as the counterclaimant, had the burden to prove his counterclaim of fraud by clear and convincing evidence to overcome the presumption against fraud.

¶ 14. The chancellor, ruling from the bench, explained that "looking to the contents of the contracts, they are clearly contracts for the sale and purchase of land." Additionally, the chancellor found that all three contracts identified the property for sale by address and "made it clear that it was the parties' intent for the subject property to be purchased." Moreover, the chancellor, interpreting the contracts, stated that "it only appears that Mr. Warden ... intended to perform and Mr. Frisby intended to accept the work in exchange for irregular installment payments towards the purchase price of the home."

¶ 15. Further, prior to her discussion of the contracts' validity, the chancellor explained that Frisby's "expert's opinion [did] not leave the court with a firm conviction that the signatures were forged by the plaintiff." Moreover, the chancellor explained that testimony from two witnesses, Neill and Brandon Wooldridge, evidenced the authenticity of the signatures. Therefore, the chancellor found that Frisby had failed to overcome the presumption against fraud. Having reviewed the record, it is clear that the chancellor understood the burdens required by each party. Therefore, this issue is without merit.

III. Whether Warden carried his burden of proof.

¶ 16. Next, Frisby asserts that Warden failed to carry his burden of proof during trial because he could not prove his case by a preponderance of the evidence. However, in his brief, he does not cite any supporting law or any evidence to support the assignment of error. Rather, he only reasserts the issues previously argued in his brief. It is a well-established axiom of law that "[i]n the absence of meaningful argument and citation of authority, an appellate court generally will not consider an assignment of error." Doss v. Claiborne Cty. Bd. of Supervisors , 230 So.3d 1100, 1104 (¶ 10) (Miss. Ct. App. 2017) (quoting Randolph v. State , 852 So.2d 547, 558 (¶ 29) (Miss. 2002) ); see M.R.A.P. 28(a)(9) ; Satterfield v. State , 158 So.3d 380, 383 (¶ 6) (Miss. Ct. App. 2015) ("An appellant cannot give cursory treatment to an issue and expect this Court to uncover a basis for the claims, either in the record or in the law."). Thus, having addressed Frisby's previous issues and finding that no further meaningful argument has been made to support the contention that Warden failed to carry his burden of proof, we find that Frisby has waived this issue on appeal.

IV. Whether the chancellor erred in finding that Warden detrimentally relied on Frisby's promise.

¶ 17. Next, Frisby argues that the chancellor erred in alternatively finding that Warden detrimentally relied on Frisby's promise to accept work in exchange for the purchase of the home. Frisby contends that the evidence and testimony offered at trial showed by a preponderance of the evidence that Warden traced Frisby's signature on the contracts and therefore Warden had unclean hands and was not entitled to equitable relief. In support of this contention, Frisby cites to the testimony of his expert and discredits Wooldridge's testimony, which according to Frisby, was biased and contrary to the evidence.

¶ 18. Frisby is correct that detrimental reliance is an equitable principle and cannot be awarded to a party with unclean hands. See Houston v. Willis , 24 So.3d 412, 421 (¶ 31) (Miss. Ct. App. 2009) ("It is well established that those seeking relief in equity must come to court with clean hands; the failure to do so may result in the refusal by the court to grant a remedy."). However, his argument is based on disputed questions of fact, which are left to the sound discretion of the chancellor. See Carter v. Carter , 735 So.2d 1109, 1114 (¶ 18) (Miss. Ct. App. 1999). Moreover, "[t]he chancellor, by [her] presence in the courtroom, is best equipped to listen to the witnesses, observe their demeanor, and determine the credibility of the witnesses and what weight ought to be ascribed to the evidence given by those witnesses." Id. at (¶ 19).

¶ 19. In the present case, the chancellor, after hearing evidence and testimony by both parties, found that Warden's detrimental reliance was evidenced by his continued work for Frisby, the series of contracts showing the value of work performed, and Warden's own improvements to the property, which had been made uninhabitable by Hurricane Katrina. Furthermore, the chancellor explained that she was not persuaded by Frisby's expert's testimony. She explained that although Frisby's expert opined that the signatures were "probably" unnatural, this "did not leave the court with a firm conviction that the signatures were forged by [Warden]." Finding that there was substantial credible evidence in the record to support the chancellor's decision, we cannot find that it was manifestly in error.

V. Whether Frisby presented sufficient evidence to prevail on his fraud claim.

¶ 20. Frisby asserts that he presented sufficient evidence to prevail on his fraud claim because his expert's conclusion that the signatures were "probably" traced was sufficient to prove his claim by clear and convincing evidence. In support of this assertion, Frisby cites to a publication by Sandra Ramsey Lines, titled Legal Terms for Expressing Conclusions in Court , arguing that "[a]lthough the expert could have or ... perhaps should have reached a more certain conclusion [regarding the traced signatures], his 'probable' conclusion is sufficient to meet the civil burden of preponderance of the evidence." However, a preponderance of the evidence standard is a lesser standard than the well-established clear and convincing evidence standard required to prove fraud. See Cotton v. McConnell , 435 So.2d 683, 685 (Miss. 1983) ("[I]t is well established in this state that before a plaintiff may prevail on a charge of fraud, he must prove fraud by clear and convincing evidence."). Clear and convincing evidence has been defined as:

[T]hat weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct[,] and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.

Moran v. Fairley , 919 So.2d 969, 975 (¶ 24) (Miss. Ct. App. 2005).

¶ 21. During the hearing on September 9, the chancellor explained that the expert's opinion "[did] not leave the court with a firm conviction that the signatures were forged." The chancellor further explained that although the expert's report clearly indicated that he compared the signature from the contracts and Frisby's signature, his report "stops short of giving a conclusion drawn from this comparison." Further, the chancellor held that the expert's "probable" finding was one-step above "inconclusive" according to a scale included in the expert's report. Therefore, we cannot conclude that the chancellor committed manifest error in finding that the expert's "probable" conclusion did not meet the clear-and-convincing evidence standard.

CONCLUSION

¶ 22. In summation, the chancellor did not commit manifest error in enforcing three contracts for the sale of land and ordering specific performance. Although the authenticity of the contracts was disputed, the chancellor did not err in admitting them into evidence and proceeding with a trial to determine the authenticity of the signatures. Further, the chancellor, after hearing the testimony and evidence from both parties, did not manifestly err in finding that Warden had proven the validity of the contracts. Additionally, because Frisby asserted a counterclaim for fraud, the chancellor did not err in requiring him to prove his case by clear and convincing evidence. Moreover, the chancellor did not commit manifest error in finding that Warden detrimentally relied on Frisby's promise. Therefore, we affirm the chancellor's judgment requiring Frisby to specifically perform on the parties' three contracts and ordering Warden, based on amounts previously paid, to pay Frisby $11,300 as full and final payment of purchase price of the property.

¶ 23. AFFIRMED.

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

      The chancellor treated Frisby and Oasis as one entity. In her judgment, the chancellor explained that Frisby is the owner of Oasis and referred to Frisby and Oasis collectively "hereinafter" as "Defendant" or "Mr. Frisby." This determination was not appealed. Therefore, for the purpose of this appeal Frisby and Oasis are referred to collectively as "Frisby."

      These agreements were dated April 1, 2011, October 22, 2013, and January 2, 2014.


author: IRVING, P.J., FOR THE COURT:

text:
    Carlos C. JONES a/k/a Carlos Jones a/k/a Carlos J. Jones, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01579-COA
    Court of Appeals of Mississippi.
    May 8, 2018 Rehearing Denied September 11, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, JACKSON, BY: JUSTIN TAYLOR COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, JACKSON
    BEFORE IRVING, P.J., BARNES AND WILSON, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Carlos Jones appeals his conviction for second-degree murder, alleging three issues: (1) the trial court erred in admitting a video depicting testimonial evidence; (2) the trial court erred in refusing to allow his witness to testify as an expert; and (3) his trial counsel was constitutionally ineffective. Finding no reversible error, we affirm.

FACTS

¶ 2. At the time of the events giving rise to trial, Jones and his wife, Tabatha Smith, were living with Tabatha's two children in Jefferson Davis County, Mississippi. Jones testified that on the morning of December 5, 2014, he awoke, got out of bed, and left his and Tabatha's bedroom to wake the children. Upon returning to the bedroom, he and Tabatha-who was awake but still in bed at this point-began "fussing." Tabatha rolled over onto the handgun that Jones kept under his pillow and said, "You and this gun." Jones pulled the gun out from under the pillow and assured Tabatha that it was not loaded. He then put the gun in the back pocket of his pants, but it fell through a hole in the pocket and hit the floor. Jones later testified at trial as follows:

BY DEFENSE COUNSEL
Q. And you're not saying [the gun] fired when it hit the floor?
A. I'm not saying it fired when it hit the floor. I'm saying when I grabbed it, I don't know how did I [sic] grab it, the gun went off. I know [sic]. I didn't even know how many times she was shot until, you know, I-I just-when she-when that gun went off, she sa[id], "I told you." I looked at my wife. She was bleeding.
* * * *
A. When I was coming up, the gun went off.
BY THE PROSECUTOR
Q: All right. So you-you're saying apparently that you didn't even pull the trigger.
A. I don't know how I retrieved that gun....
* * * *
Q. Well, where did you point the gun when you came up?
A. I didn't-I didn't know it hit her. I just heard it go off. She just said, "I told you." I didn't point the gun.
* * * *
A. In my attention [sic], I think the gun just shot. I didn't pull no trigger on no gun [sic]. It was an accident. It was an accident.

¶ 3. According to Jones, Tabatha, upon realizing that she had been shot, said, "I told you." Jones asserted that Tabatha told him not to call 911 because it would take too long, so he dragged her out of the house and placed her into the back seat of his car. Then, with Tabatha's two children in the front seat, he drove to Prentiss Regional Hospital.

¶ 4. Jones testified that when he reached the emergency room, he shouted for help from a man standing nearby. The man, later identified as Antonio McClendon, helped Jones alert the nurses, who loaded Tabatha into a wheelchair and admitted her. Tabatha was still conscious at this point.

¶ 5. McClendon later testified at trial that he had been standing outside of an apartment complex near the emergency room when Jones drove up. He recognized Jones and Tabatha from meeting them on a prior occasion and walked over to the hospital to investigate. McClendon further testified:

Q. Okay. Did [Jones] tell you what had happened to her?
A. After-after we got her out [of the car and into the hospital], he was-he was saying that, you know, there was some kind of-it was early in the morning. He was-you know, they was just [sic], you know, having words I guess or whatever, and he was, like, he was playing with her with-with the gun, you know, like, ["Y]ou going to get this right here. Now give me some,["] you know.
I guess something they always do [sic]. You know, I don't know. You know, that's what he was telling me.
And he was, like, such and such, and the gun went off and shot her, like, three or four times.
Q. Okay. That's what [Jones] told you?
A. Yes, ma'am.
Q. Did he tell you anything in particular about the condition of the gun?
A. Yeah. He told [me] it was, like, the gun kind of messed up. It had like a little hair trigger, you know, like. Like, it just went off, and it got stuck, and that's how she got shot four or five times, or three or four times.

Finally, McClendon opined that Jones appeared to be high when Jones arrived at the hospital. He maintained that Jones acted as if he did not want to sign any papers, and that he believed Jones would have left the hospital if McClendon had not asserted that he needed to stay.

¶ 6. Shortly after Tabatha was admitted, the hospital alerted law enforcement authorities. Officer David Marshall with the Prentiss Police Department was the first to arrive, and testified at trial that Jones told him the following:

[He told me t]hat he keeps a Hi-Point .45 underneath his pillow at home and that he retrieved it and placed it in his rear, right pocket, which had a hole in it, [and] that the firearm fell through the hole. He picked it up, and he said that he pointed towards his wife and said, "I told you it wouldn't fire," and once he did that, the weapon fired.

Jones gave the gun-which he had brought with him to the hospital-to Officer Marshall, who secured it in his patrol vehicle.

¶ 7. Subsequently, Deputy Denise Jackson and Investigator Charles Johnson, both with the Jefferson Davis County Sheriff's Department, arrived at the hospital. Deputy Jackson retrieved the gun from Officer Marshall and placed Jones into custody. Both Investigator Johnson and Deputy Jackson attempted to speak with Tabatha, but Investigator Johnson testified that "she was not really talking" and "the only thing she was saying was, 'Help me, help me, help me.' " Similarly, Deputy Jackson testified that when she went into the hospital room, all Tabatha said was "help me."

¶ 8. Investigator Johnson obtained a search warrant for Jones and Tabatha's home, and he and Deputy Jackson conducted a search of the premises. Sometime thereafter, Jones was arrested on charges of "domestic violence, aggravated assault." Jones waived his rights pursuant to Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and wrote the following statement:

[Tabatha] rolled over on my side [of the bed.] She said[, "Y]ou and this gun[."] I got my gun out from under my pillow and stuck it in my back pocket and it fell out[.] I picked it up and said[, "T]his gun ain't loaded[."] When I turened[,] [sic] it went off[.] She said[, "I] told you[."] When I looked up[,] she was bleeding.

¶ 9. On December 10, 2014, Investigator Johnson again attempted to speak to Tabatha. This conversation, which lasted fifty-five seconds, was video-recorded. The video depicts Investigator Johnson asking, "Tabatha, did Carlos shoot you?" Tabatha did not verbally respond. Investigator Johnson said, "Let me know by shaking your head or raising your hand." Tabatha lifted her hand slightly. Investigator Johnson then said, "Okay. How many times he [sic] shoot you?" Tabatha moved her fingers. Investigator Johnson said, "Okay. Thank you," and the video concluded.

¶ 10. After fifteen days in the hospital, on December 20, 2014, Tabatha succumbed to her injuries. Dr. John Brentley Davis, a forensic pathologist and Deputy Chief Medical Examiner for the State of Mississippi, reviewed Tabatha's autopsy report and testified that she had been struck by two bullets: one bullet hit Tabatha's left shoulder and the right side of her neck, and another bullet hit her right shoulder. As a result of the gunshots, Tabatha sustained injury to her jugular vein and to vertebrae in her neck and upper back.

¶ 11. The Grand Jury of Jefferson Davis County indicted Jones for one count of murder, in violation of Mississippi Code Annotated section 97-3-19 (Supp. 2017). Jones's trial was conducted over the course of three days, from October 10, 2016, to October 12, 2016. The jury heard testimony from Tabatha's oldest son, Daniel, who was seven years old at the time of the shooting. Daniel testified that, on the morning of the incident, he heard his mother and Jones arguing. The arguing stopped for some time, then it resumed, and then Daniel heard three gunshots. Daniel indicated what the gunshots sounded like by knocking his fist against the ledge of the witness stand three times. While the record is unclear as to the exact timing pattern of Daniel's knocks, the State maintained during closing arguments that two of the knocks were closer together than the third, which differs from an episode of rapid fire, during which all shots would have occurred in quick succession with no variance in timing between them. Jones's counsel did not refute the State's recollection of Daniel's knocks against the witness stand, but instead argued that Daniel was incorrect in remembering the timing pattern of the shots or that he had been coached prior to his testimony.

¶ 12. Investigator Johnson also testified at trial, during which the video of his interview with Tabatha at the hospital was admitted into evidence. Jones's defense counsel objected on the basis that the video was more prejudicial than probative. The court allowed the video into evidence on the basis that it was a part of Investigator Johnson's continuing investigation. Investigator Johnson further testified as to his investigative report, wherein he recounted the following:

[Jones] stated that he had the gun under the pillow and he accidentally shot his wife, and he also told Officer Marshall the same thing.
* * * *
Mr. Jones stated that the gun was under the pillow and Tab[ath]a was complaining about it[,] so he took the gun from under the pillow and put it in his back pocket, and the gun fell out [of] his pocket and hit the floor[. H]e stated that Tab[ath]a stated[, "Y]ou need to put that gun up[."] Mr. Jones stated that he pick[ed] the gun up and was trying to show her that it wasn't loaded, and the gun went off[,] shooting her in the neck[,] both shoulder[s], and chest.

¶ 13. Two witnesses testified about the handgun's functionality: Darrell Carey, a firearms instructor who testified for the defense, and Carl Fullilove, a forensic scientist who testified for the State. After conducting a voir dire examination of Carey, the trial court refused to admit him as an expert under Rule 702 of the Mississippi Rules of Evidence, on the basis that he had not shown that his testimony was "based on sufficient facts or data" or "based on reliable principles and methods." Specifically, the trial judge noted that Carey had not produced written documentation or publication that could be cross-examined by counsel opposite, and that "his testimony was strongly weighted or heavily weighted toward firearm shooting and not the mechanics of the firearm itself, i.e., the assembling, disassembling, [or] the methodology of how it operates." Jones's counsel argued that Carey's testimony was relevant because a theory of its case was that "if you hold the weapon without a rigid wrist, ... due to the weight of the slide, ... when you fire the weapon, you can get basically a repetitive firing, very, very rapidly." As Carey was experienced in shooting handguns, the defense argued that he was an expert and should be able to testify as such. However, the court ultimately refused to allow Carey to testify as an expert, and allowed him to testify only as to his personal observations as a lay witness.

¶ 14. Carey, as a lay witness, testified that he attempted to recreate Jones's theory of defense: that he had picked up the gun and it somehow discharged several times. A video recording of this recreation is included in the record. Carey testified to the following:

It [did] not occur with every pick up of the firearm, but what I did observe is that if you grasp that firearm ... like this (indicating) with that finger on that trigger ... and that weight of that firearm basically weighs against your hand, it will go off several times in quick succession.

Carey further noted that he had personally observed that, on one occasion, when he lifted the gun up, "the heavy weight of [the] slide (indicating) basically cause[d] the firearm to bump against [my] trigger finger." Carey testified that once, as he lifted up the gun, it "actually went off twice, and then there was a second time where it actually went off three times without me consciously pulling the trigger. Just the weight of that slide (indicating) reciprocating back and forth caused it to continue firing."

¶ 15. Fullilove, as an expert witness for the State, testified that, like Carey, he had fired Jones's gun to ascertain its functionality. Fullilove testified that he conducted several tests to see if the gun would misfire, even using a rawhide hammer to strike the weapon. Fullilove opined that, to fire the weapon, a person would have had to pull the trigger once per shot.

¶ 16. At the conclusion of trial, the jury found Jones guilty of second-degree murder. He was sentenced to forty years in the custody of the Mississippi Department of Corrections, with thirty-five years to serve. Jones filed a timely motion for judgment notwithstanding the verdict, which was denied. Jones now appeals his conviction.

DISCUSSION

I. Admission of the Video

¶ 17. Jones argues that the trial court's admission of Investigator Johnson's video of Tabatha at the hospital violated his fundamental rights under the Sixth Amendment's Confrontation Clause. Jones concedes that his counsel did not properly object, but maintains that this issue may proceed under the doctrine of plain error. The State, in response, argues (1) that the issue is waived due to Jones's failure to properly object, and (2) even assessing the issue under plain error, "the admission of the video is not grounds for reversal because the statements that Tabatha made on the video were cumulative of other evidence that was admitted at trial, including the admissions that Jones, himself, made."

¶ 18. First, we note that regardless of whether Jones's counsel objected, we may proceed with this analysis under the plain-error doctrine. "Under the plain-error doctrine, we can recognize obvious error which was not properly raised by the defendant on appeal, and which affects a defendant's 'fundamental, substantive right.' " Smith v. State , 986 So.2d 290, 294 (¶ 10) (Miss. 2008). "A Confrontation Clause violation is a violation of a 'fundamental, substantive right.' " Bufford v. State , 191 So.3d 755, 760 (¶ 18) (Miss. Ct. App. 2015) (quoting Ezell v. State , 132 So.3d 611, 612 (¶ 3) (Miss. Ct. App. 2013) ). Thus, this issue is proper for our review even though it may not have been properly preserved for appeal.

¶ 19. "The Confrontation Clause guarantees a criminal defendant the right 'to be confronted with the witnesses against him.' " Id. at 759 (¶ 13) (quoting U.S. Const. amend. VI ). "In Crawford v. Washington , 541 U.S. 36[, 54], 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that 'testimonial' evidence could not be admitted against a criminal defendant unless the declarant was unavailable at trial, and the defendant had a prior opportunity to cross-examine him." Id. (citation omitted). The Supreme Court provided in Michigan v. Bryant , 562 U.S. 344, 370, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), that, when determining whether a statement is testimonial and therefore barred by the Confrontation Clause, "it should determine the 'primary purpose of the interrogation' by objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs." The Court held:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id. at 356, 131 S.Ct. 1143 (citing Davis v. Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) ).

¶ 20. We hold that the video was, under this standard, testimonial. Investigator Johnson asked Tabatha two questions: (1) whether Jones shot her and (2) how many times he shot her. We see no purpose for those questions other than to establish events potentially relevant to Jones's later criminal prosecution. Further, we note that Tabatha was unavailable to testify at trial due to her unfortunate death, and that Jones had no opportunity to cross-examine her.

¶ 21. However, while we find that the circuit court erred in admitting the video, we also find that Jones was not prejudiced by this violation. The Supreme Court has held that "[a] defendant is entitled to a fair trial but not a perfect one," and that, therefore, "most constitutional errors can be harmless." In Delaware v. Van Arsdall , 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), the Supreme Court provided the following with respect to when Confrontation-Clause violations may be considered harmless error:

The correct inquiry is whether, assuming that the damaging potential of the cross-examination [was] fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.

¶ 22. Under these parameters, we are satisfied that the trial court's error in admitting the video was harmless beyond a reasonable doubt. First, we note that Tabatha's testimony was not particularly beneficial to either the State or Jones. Tabatha was unable to provide definite answers to either of Investigator Johnson's questions, as she appeared to be only semi-conscious when she lifted her hand or moved her fingers. Second, the evidence was cumulative, at least with respect to Investigator Johnson's question of whether Jones shot Tabatha, as Jones, himself, admitted that he was in control of the gun when Tabatha was shot. Third, we cannot say that there was evidence corroborating or contradicting Tabatha's testimony on material points, because she made no material points, as her nonverbal communication was ambiguous at best. As discussed earlier in this opinion, there was sufficient admissible and credible evidence upon which the jury could rely to convict Jones without considering Tabatha's nonverbal ambiguous communication about who shot her. Based on these facts, we hold that, while admission of the video was erroneous due to its testimonial nature, the error was harmless.

II. Expert Witness

¶ 23. Jones argues that the trial court erred in failing to admit Carey as an expert witness in the field of firearm operations and functions, which consequently prejudiced his right to present his defense that the shooting was accidental. In response, the State contends that the trial court did not err, because Carey did not disclose "what his expert opinion would be, as was required by URCCC 9.04(c)(3)," and because Jones did not show that Carey satisfied the requirements for admission of expert testimony under the Mississippi Rules of Evidence. Further, the State maintains that Jones never made a proffer of what Carey's testimony would have been, had he been qualified as an expert, rendering the record insufficient for us to determine whether the trial court's refusal of his expert testimony was reversible error. Finally, the State maintains that the trial court did not deny Jones the opportunity to present his theory of defense, in part because Carey's purported testimony and personal observations did not prove that Tabatha's death was accidental.

¶ 24. "The standard of review regarding admission or exclusion of evidence is abuse of discretion." Tillis v. State , 176 So.3d 37, 45 (¶ 15) (Miss. Ct. App. 2014). Rule 702 of the Mississippi Rules of Evidence provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

In contrast, Rule 701 of the Mississippi Rules of Evidence provides that a lay witness may testify as to his opinion if that opinion is "(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702."

¶ 25. We do not find that the trial court abused its discretion in allowing Carey to testify as a lay witness, but not as an expert. As previously stated, the trial judge found that Carey's testimony was not "based on sufficient facts and data," because it concerned firearm shooting and not the actual mechanics of the firearm. Further, the trial judge held that Carey could not offer any "reliable principles or method[s] that could be cross-examined by the opposite counsel," such as written reports or other documentation, or any published materials.

¶ 26. The record supports these conclusions: Carey admitted that he had never written any articles or periodicals on shooting firearms, and could not provide the court with any "reliable principles and methods" on which his testimony was based. Further, Carey did not hold an engineering degree and did not seek to testify as to the gun's mechanics. Such knowledge probably would have been more akin to relevant expert testimony in this case, which revolved around the gun's mechanical propensity to misfire. Carey's testimony, as presented during the voir dire examination, was largely contingent upon his own personal observations of the handgun's functionality, in light of Jones's theory of defense. As such, we hold that he was properly allowed to testify as a lay witness, only. We decline to address the State's other arguments regarding Carey's testimony, as they are consequently moot.

III. Sufficiency of Counsel

¶ 27. Jones argues that his counsel was constitutionally ineffective because he failed to offer an accident instruction which would have allowed the jury to consider his theory of defense. In response, the State maintains that Jones's counsel's decision was trial strategy and, therefore, not subject to review.

¶ 28. To prove ineffective assistance of counsel, a party must show (1) that his counsel's performance was deficient and (2) that this deficiency prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, we have repeatedly held that:

[T]he merits of an ineffective-assistance-of-counsel claim on direct appeal should be addressed only when (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.

Robinson v. State , 68 So.3d 721, 723 (¶ 10) (Miss. Ct. App. 2011) (internal quotation marks omitted). Here, the record does not affirmatively show ineffectiveness of constitutional dimensions. Further, the parties have not stipulated that the record is adequate to allow this Court to make a finding without consideration of the trial judge's findings of fact. Thus, we dismiss with respect to this issue, without prejudice, so that Jones may properly seek leave from the Mississippi Supreme Court to raise this issue in a post-conviction relief motion.

¶ 29. Although we found error in the trial court's admission of testimonial evidence, that error was harmless, particularly in light of the other evidence presented at trial. We note, specifically, that Jones offered varying accounts of the events that occurred just prior to the shooting. As stated above, Jones testified at trial that the gun "just went off" as he was lifting it from the ground. However, in his police statement, Jones said that the gun went off when he turned. Further, at trial, Jones maintained both that he did not know how he retrieved the gun, and that he did not pull the trigger on the gun. Such a statement belies McClendon's testimony that Jones told him he and Tabatha had been "playing," when he shot her due to the gun's "hair trigger." In light of these inconsistencies, combined with the testimony of all witnesses at trial, we affirm.

¶ 30. AFFIRMED.

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

      At trial, Jones defined "fussing" as "[d]isagreeing about things" and just typical "banter" between husbands and wives.

      The State in its brief on appeal says that Tabatha indicated Jones shot her twice, while Jones does not purport either that Tabatha did or did not make such an indication. It is this Court's opinion that Tabatha's movements were not intelligible to the extent that we can definitively say she indicated Carlos shot her twice.

      Tabatha's autopsy was actually performed by Dr. Erin Barnhart, who was unavailable to testify at Jones's trial.

      The minor child's name has been changed to protect his privacy.

      We note that the Uniform Rules of Circuit and County Court relating to criminal practice have been supplanted by the Mississippi Rules of Criminal Procedure, effective July 1, 2017. Because the former rules were still in effect during Jones's trial, Rule 9.04(c)(3) applies to Jones's case. The same applies to any other former rules cited in this opinion.