author: CARLTON, J., GRIFFIS, J.,

text:
    Martha LOTT, Appellant, v. HUDSPETH CENTER and Mississippi State Agencies Workers’ Compensation Trust, Appellees.
    No. 2007-WC-01525-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2008.
    Rehearing Denied April 14, 2009.

      William Benjamin Ryan, attorney for appellant.
    William Bienville Skipper, attorney for appellees.
   CARLTON, J.,

for the Court.

¶ 1. Martha Lott appeals the judgment of the Montgomery County Circuit Court, which affirmed the decision of the Mississippi Workers’ Compensation Commission (Commission), awarding her permanent partial disability benefits for the 100% loss of use of her aim.

FACTS

¶ 2. On May 15, 2003, Lott sustained an injury to her right shoulder while assisting a patient at the Kilmichael Group Home, operated by Hudspeth Center. Lott filed the appropriate paperwork to report her injury and sought treatment from Dr. Asa Bennett, an orthopedic specialist. Dr. Bennett diagnosed Lott as having a torn rotator cuff, and he performed surgery to repair the injury on October 6, 2003. He also prescribed physical therapy for Lott. Dr. Bennett released Lott at maximum medical improvement on June 29, 2004, without any work restrictions. Dr. Bennett assessed Lott’s disability as a 10% impairment to her right upper extremity. Lott was not able to return to her job at the Kilmichael Group Home because her employment was terminated during her recovery from her injury.

¶ 3. After being discharged by Dr. Bennett, Lott filed her petition to controvert, claiming that she was entitled to permanent disability benefits in excess of the anatomical rating assigned by Dr. Bennett. Lott was then referred, by her attorney, to Kay Cannon for a functional capacity evaluation (FCE). After the FCE, Cannon found that Lott could return to work at a sedentary-light physical demand level. Cannon also noted that Lott was limited by “very poor body mechanics” and was self-limited by her pain.

¶ 4. Lott was then sent to Dr. David Collipp for another evaluation. Dr. Col-lipp prescribed physical therapy and scheduled Lott for another FCE to measure the success of physical therapy. After the second FCE, Lott’s only limitation, according to Dr. Collipp, was that she was unable to lift 100 pounds. Dr. Collipp found that Lott could return to work with a maximum lifting limit of 60 pounds.

¶ 5. Lott corresponded with Ann Allen, a vocational rehabilitation counselor with F.A. Richards and Associates, who advised Lott on a few occasions about available jobs in Lott’s area. Lott sent resumes and/or completed job applications to nearly all of the employers suggested by Allen, but she x'eceived no offers. She did not send a resume for one job as a metal fabricator, because she did not know what that position was and had no experience in that field. Additionally, Lott initiated her own search for employment in her own and surrounding communities.

II6. A hearing was conducted on July 6, 2005, to determine whether and to what extent Lott had any permanent disability. Lott’s medical records were admitted into evidence, as were the reports of Cannon and Dr. Collipp. David Stewart, a vocational expert, testified that Lott was able to perform some work, but only sedentary to light work. Stewart based his opinion on the first FCE, and he did not consider the FCE conducted by Dr. Collipp. Further, Stewart testified that it is his practice to help clients find employment when requested to do so, but Lott never requested his services in finding employment. Stewart also testified that the unemployment rate in Montgomery County was higher than the state average, and that factor limited Lott’s employment opportunities as much as her injury did.

¶ 7. After the hearing, the administrative law judge found that Lott was permanently disabled and in accordance with Mississippi Code Annotated section 71-3-17(a) (Rev.2000), required the employer to pay Lott total disability payments for a period of 450 weeks. The employer and carrier appealed to the Commission. After oral arguments, the Commission reversed the administrative law judge and found that Lott was entitled to only 200 weeks of permanent partial disability benefits, which is the maximum for her scheduled members’ injury under Mississippi Code Annotated section 71 — 3—17(c) (Rev.2000).

¶ 8. Lott appealed the Commission’s decision to the Circuit Court of Montgomery County, which affirmed the Commission. Feeling aggrieved once again, Lott appealed that decision and is now before this Court.

DISCUSSION

¶ 9. Lott argues that the circuit court erred in affirming the Commission’s decision that she was only entitled to disability benefits equivalent to 100% loss to her arm, as opposed to permanent total disability benefits, even after it was established that she was unable to find work despite 194 documented efforts to find employment.

¶ 10. The standard of review in a worker’s compensation appeal is limited. This Court must determine only whether the decision of the Commission is supported by substantial evidence. Casino Magic v. Nelson, 958 So.2d 224, 228(¶ 13) (Miss.Ct.App.2007) (citing Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 447(¶ 7) (Miss.Ct.App.1999)). “The Commission sits as the ultimate finder of facts; its findings are subject to normal, deferential standards upon review.” Id. (citing Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993)). Because our review is limited, this Court “will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Id. (citing Westmoreland, 752 So.2d at 448(¶ 8)). We maintain this deferential standard even when we would have been persuaded to rule otherwise if we had been the fact-finder. Vance v. Twin River Homes, 641 So.2d 1176, 1180 (Miss.1994) (quoting Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)). Though we defer to the Commission’s findings of fact, “[w]e review the Commission’s application of the law de novo.” Univ. of Miss. Med. Ctr. v. Smith, 909 So.2d 1209, 1218(¶ 30) (Miss.Ct.App.2005) (citing ABC Mfg. v. Doyle, 749 So.2d 43, 45(¶ 10) (Miss.1999)). “Certainly the legal affect [sic] of the evidence, and the ultimate conclusions drawn by an administrative tribunal from the facts ... are questions of law, especially where the facts are undisputed or the overwhelming evidence reflects them. The question depends then upon application of established legal principles to such facts.” Cent. Elec. Power Ass’n v. Hicks, 236 Miss. 378, 388-89, 110 So.2d 351, 356 (1959).

¶ 11. On appeal, Lott argues that the Commission erred in concluding that she was not entitled to permanent and total disability benefits under Mississippi Code Annotated section 71-3-17(a). Specifically, Lott argues that she carried her burden in establishing a good faith job search effort, after which, she argues, the burden shifted to the employer and carrier to establish that her job search efforts were a sham or not in good faith. Lott argues that the Commission misapplied the applicable Mississippi law, and this Court, therefore, should not defer to the Commission’s findings.

¶ 12. Mississippi Code Annotated section 71-3-17(a) and (c), in part, state:

(a) Permanent total disability: In case of total disability adjudged to be permanent, sixty-six and two-thirds percent (66-2/3%) of the average weekly wages of the injured employee, subject to the maximum limitations as to weekly benefits as set up in this chapter, shall be paid to the employee not to exceed four hundred fifty (450) weeks or an amount greater than the multiple of four hundred fifty (450) weeks times sixty-six and two-thirds percent (66-2/3%) of the average weekly wage for the state. Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two (2) thereof shall constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts,
(c) Permanent partial disability: In case of disability partial in character but permanent in quality, the compensation shall be sixty-six and two-thirds percent ... of the average weekly wages of the injured employee, subject to the maximum limitations as to weekly benefits as set up in this chapter, which shall be paid following compensation for temporary total disability paid in accordance with subsection (b) of this section, and shall be paid to the employee as follows:
Member Lost Number Weeks Compensation
(1) Arm 200

The Commission determined Lott’s disability to be a permanent partial disability under Mississippi Code Annotated section 71-3-17(c). Under that subsection, Lott’s loss of use of her arm entitled her to only 200 weeks of benefits.

¶ 13. The Mississippi Supreme Court has held that “[wjhere an employee suffers an injury covered by the schedule in Section 71-3-17 (c) and where that injury results in a permanent loss of wage[-]earning capacity within Section 71-3-17(a), the latter section controls exclusively and the employee is not limited to the number of weeks of compensation prescribed in Section 71-3-17(c)’s schedule.” Smith v. Jackson Constr. Co., 607 So.2d 1119, 1128 (Miss.1992). The Mississippi Workers’ Compensation Act (MWCA) defines disability as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment....” Miss.Code Ann. § 71-3-3(i) (Rev.2000). Further, that “incapacity and the extent thereof must be supported by medical findings.” Id. “Factors to be considered in determining loss of wage-earning capacity include the amount of education and training that the claimant has had, his inability to work, his failure to be hired elsewhere, the continuance of pain, and any other related circumstances.” Alumax Extrusions, Inc. v. Wright, 737 So.2d 416, 422(¶ 16) (Miss.Ct.App.1998) (citing McGowan v. Orleans Furniture, Inc., 586 So.2d 163, 167 (Miss.1991)).

¶ 14. In Thompson v. Wells-Lamont Corp., 362 So.2d 638, 641 (Miss.1978), the supreme court held that once the claimant has made a prima facie case showing a good faith search for employment, the burden shifts to the employer to show that the claimant’s efforts were “a sham, or less than reasonable, or without proper diligence.” See also Sherwin Williams v. Brown, 877 So.2d 556, 559(¶ 12) (Miss.Ct.App.2004) (citing Georgia Pacific Corp. v. Taplin, 586 So.2d 823, 828 (Miss.1991)). Further, the reasonableness of a claimant’s job search includes a “consideration of job availability and economics in the community, the claimant’s skills and background, and the nature of the disability.” Brown, 877 So.2d at 558(¶ 11) (citing Taplin, 586 So.2d at 828). The Commission made no findings regarding whether Lott had made a prima facie case of total disability and whether her employer had met its burden in showing her efforts were unreasonable. Therefore, we find “that the Commission erred as a matter of law in not employing the proper legal standard!,] and it is proper for this Court to conduct a de novo review of the Commission’s findings of fact in light of the applicable law.” Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1227 (Miss.1997).

¶ 15. The Commission considered the depressed economic conditions and shortage of jobs in Lott’s community and held this factor against Lott. The Commission found that Lott retained “significant functional abilities which, when coupled with her age, education, and past work history, drives the conclusion that she retains some earning capacity, her unsuccessful job search to date notwithstanding.” The Commission further found that “[g]iven the economic realities where she lives, Ms. Lott may have to be more persistent in her effort to find work, but the medical, vocational and other evidence does not convince us that she is totally unable to earn wages as a result of the injury to her right shoulder.” The Commission’s ruling focuses on Lott’s medical disability, finding that she retains some wage-earning capacity despite her injury. However, our supreme court held in Marshall Durbin, Inc. v. Hall, 490 So.2d 877, 880 (Miss.1986), that:

The disability contemplated by the Act is an occupational disability, not a medical disability. An employee is entitled to compensation to the extent that he has been incapacitated to earn wages. That an injured employee retains substantial functional abilities in no way undercerts [sic] the conclusion that he may be totally occupationally disabled.

(Internal citations omitted).

¶ 16. Lott documented her job search. She applied for or inquired about 194 separate positions in her hometown, as well as surrounding communities. Lott also applied with her former employers that were still in existence. Lott’s attempts to find employment had differing results. Some potential employers told her they simply were not hiring. Others required lifting she would not be able to do. Still others, she says, had negative reactions when she informed them that she lost her previous job due to a workplace injury. Most of the employers Lott applied with were not hiring. Of the 194 applications or inquiries, Lott was offered one job at the Indywood Glen Personal Care Home. When Lott revealed her injury, she was informed that she would not be given the job.

¶ 17. Lott was sixty-one years old at the time of the hearing. She has only a high school education, and her prior work experience consisted of mainly factory and manual labor, with the exception of sixteen years she spent as a teacher’s assistant. Further, Stewart, one of the vocational rehabilitation counselors, testified at the hearing that Lott had experienced a 93-95% loss of access to the job market. The evidence presented at the hearing shows that despite diligent efforts to find employment, Lott was unable to find work following her injury. Lott was questioned at the hearing about why she had not filed an application to become a teacher’s assistant. Lott responded that she had inquired about that position, but she was informed that there were no openings for a teacher’s assistant. She then applied to wTork in the school cafeteria and as a custodian; she was not hired. At the hearing before the administrative law judge, the employer/carrier questioned Lott about her being able to babysit for her grandchildren during the day, and she explained that they were old enough to do most things for themselves. Furthermore, Lott applied to work in a childcare center, but she was not offered employment. The employer/carrier also questioned Lott about a Wal-Mart application in which she limited her available hours from 7:00 a.m. until 2:00 p.m. Lott explained that the application asked the applicants to state which hours they preferred to work. In that same application, Lott indicated that she would be available to work evenings as well as Saturdays and Sundays. Lott also sought employment with the Wal-Mart stores in Winona and in Grenada; she updated those applications several times.

¶ 18. Lott’s effort in applying for 194 jobs clearly indicates a good faith, yet unsuccessful, job search. Lott made a pri-ma facie case showing a good faith search for employment. The burden then shifted to her employer to show that her efforts were not reasonable or were deceitful. Thompson, 362 So.2d at 641. Lott’s employer did not present substantial evidence to rebut the presumption established by Lott that she was permanently totally disabled.

¶ 19. We find that Lott has made a prima facie showing of permanent total disability that her employer has failed to rebut. Therefore, we render judgment that Lott is entitled, under Mississippi Code Annotated section 71-3-17(a), to compensation equal to sixty-six and two-thirds percent of her average weekly wage before her injury for a period of 450 weeks. Accordingly, we reverse the Commission’s decision and remand this cause to the Commission for a calculation of benefits to be paid to Lott, consistent with this opinion.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF MONTGOMERY COUNTY IS REVERSED AND RENDERED AS TO LOTT’S ENTITLEMENT UNDER MISSISSIPPI CODE ANNOTATED SECTION 71-3-17(a) (REV.2000) AND REMANDED TO THE COMMISSION FOR CALCULATION OF THE BENEFITS DUE TO LOTT IN ACCORDANCE WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

KING, C.J., LEE AND MYERS, P.JJ., IRVING AND BARNES, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, ISHEE AND ROBERTS, JJ.

GRIFFIS, J.,

dissenting:

¶ 21. I must respectfully dissent from the majority’s decision to reverse the judgment of the circuit court and reinstate the order of the administrative law judge. I do not agree with the majority's conclusion that the Commission applied an incorrect legal standard. Thus, in accordance with this Court’s extremely limited scope of review, I would affirm the circuit court’s judgment.

¶ 22. The majority holds that the Commission erred as a matter of law by not employing the proper legal standard because it “made no findings regarding whether Lott had made a prima facie case of total disability and whether her employer had met its burden in showing her efforts were unreasonable.” I find this conclusion to be in error because the Commission did find that Lott failed to prove a loss of wage-earning capacity; thus, her burden of showing a prima facie case of total disability was not met.

¶ 23. “Whether the claimant has made out a prima facie case is a question to be decided by the trier of facts on the evidence presented.” Thompson v. Wells-Lamont Corp., 362 So.2d 638, 641 (Miss.1978). In other words, “a Commission[’s] determination of disability constitutes a finding of fact.” Georgia Pacific Corp. v. Taplin, 586 So.2d 823, 828 (Miss.1991). Therefore, the decision of whether Lott put forth a prima facie showing of permanent total disability was an issue to be determined exclusively by the Commission. Here, the Commission clearly held that, based on the entirety of the evidence, it was “unable to conclude that Ms. Lott is permanently and totally disabled as the result of the injury to her right arm.”

¶ 24. It is true that a claimant may establish a prima facie case by showing that, despite a reasonable job search, she is unable to find the same or similar employment. Pontotoc Wire Prods. Co. v. Ferguson, 384 So.2d 601, 603 (Miss.1980) (citation omitted). However, the supreme court has held that “[a] conclusion that the employee is disabled rests on a finding that the claimant could not obtain work in similar or other jobs and that the claimant’s unemployability was due to the injury in question.” Taplin, 586 So.2d at 828 (emphasis added).

¶ 25. Here, it is evident that Lott conducted an extensive and reasonable search for other employment. Despite 194 separate applications or inquiries about positions, she was unable to find work. However, the Commission, in its role as fact-finder, found that Lott’s failure to secure employment was unrelated to her injury. Moreover, there is substantial evidence in the record to support this finding. Dr. Bennett released Lott without any work restrictions. After Lott’s most recent FCE, following physical therapy, the only limitation imposed is that Lott could no longer lift 100 pounds. Instead, she was restricted to a sixty-pound maximum.

¶ 26. The Commission concluded that Lott was unable to find employment due “to the depressed economic conditions in the area where she lives, and not to the injury itself.” This conclusion was based on substantial evidence presented by Lott’s expert who testified that the unemployment rate in Lott’s county of residence was higher than the state average and that Lott’s inability to find work was limited as much by the local economy as by her injury.

¶27. As the majority states, “[wjhere an employee suffers an injury covered by the schedule in [sjection 71-3-17(c) and ivhere that injury results in a permanent loss of wage[-]earning capacity within [s]ection 71-3-17(a), the latter section controls exclusively and the employee is not limited to the number of weeks of compensation prescribed in [sjection 71-3-17(c)’s schedule.” Smith v. Jackson Constr. Co., 607 So.2d 1119, 1128 (Miss.1992) (emphasis added). It is the Commission that weighs the factors to determine a loss of wage-earning capacity-the amount of education and training the claimant has, the inability to work, the failure to be hired elsewhere, the continuance of pain, and other related circumstances. Alumax Extrusions Inc. v. Wright, 737 So.2d 416, 422(¶ 16) (Miss. Ct.App.1998). Here, the Commission weighed the evidence before it and determined that Lott was not permanently and totally disabled as a result of the injury to her right arm. Further, the Commission found that “the medical, vocational and other evidence does not convince us that [Lott] is totally unable to earn wages as a result of the injury”; therefore, Lott did not prove a permanent loss of wage-earning capacity as required to receive more than the scheduled number of weeks of compensation set forth in section 71-3-17(c).

¶28. I find that there was more than enough substantial evidence to support the Commission’s finding that Lott did not establish a prima facie case of permanent total disability due to her injury. As such, I would affirm the circuit court’s judgment upholding the decision of the Commission.

CHANDLER, ISHEE AND ROBERTS, JJ., JOIN THIS SEPARATE OPINION.

      . See John R. Bradley and Linda R. Thompson, Mississippi Worker's Compensation § 5:28 (Thompson-West 2006), analyzing our supreme court’s holding in Barnes v. Jones Lumber Co., 637 So.2d 867 (Miss.1994). The authors note that the supreme court held that the Commission improperly applied the law of what constitutes proof of lost wage-earning capacity when it stated that the employee with a high school education “should be able to secure some type of gainful employment.” Id. The supreme court reversed the Commission's finding that Barnes should be able to find a job because the finding was not supported by evidence in the record, and Barnes had established a prima facie case of total loss of wage-earning capacity. Id. The actual availability of other work is the indicator of post injury wage-earning capacity, not the hunch that work is available. Id. Bradley and Thompson also point to McDonald v. I.C. Isaacs Newton Co., 879 So.2d 486 (Miss.Ct.App.2004), "which emphatically makes the point that unavailability of work is the test of total disability, not the extent of impairment.” Id. n. 4.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Robert McKINNEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-01734-COA.
    Court of Appeals of Mississippi.
    June 9, 2009.
    Rehearing Denied Nov. 3, 2009.
    Certiorari Denied Feb. 4, 2010.

      W. Daniel Hinchcliff, Leslie S. Lee, Jackson, William F. Travis, attorneys for appellant.
    Office of the Attorney General by: Lisa Lynn Blount, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Robert McKinney was indicted and tried on two counts of aggravated assault, one count of murder, and one count of possession of a firearm by a convicted felon. A jury acquitted McKinney of one charge of aggravated assault, but convicted him of the other. The jury also found McKinney guilty of murder and possession of a firearm by a convicted felon. The trial court sentenced McKinney to twenty years for the aggravated assault, life for the murder, and three years for the possession of a firearm by a convicted felon. The sentences were ordered to run consecutively, all in the custody of the Mississippi Department of Corrections. Aggrieved, McKinney appeals his convictions and sentences. Finding no error, we affirm.

FACTS

¶ 2. Hessie Taper owned PDR Grocery, a small convenience store in Lambert, Mississippi. Hessie lived in an apartment attached to the store with her daughter Marvella Taper and her granddaughter. William “Shang” Taper, Hessie’s ex-husband, and their son, Antonious “Tony” Taper, visited the store and apartment regularly.

¶ 3. On April 3, 2006, McKinney, the father of Marvella’s baby, traveled from Memphis, Tennessee, to visit Marvella and the child. Upon arrival, McKinney went in the store and then on to the apartment through an interior door. Shang, seeing McKinney, took the opportunity to talk to him about furniture Shang had cosigned for when Marvella and McKinney were living together in Memphis. McKinney had kept the furniture and agreed to pay the notes, but he had not done so.

¶ 4. Hessie testified that she was in the store when she heard gunshots outside. She looked out and saw McKinney shooting across the street and aiming the gun at her son Tony. Tony was unarmed and moving around to avoid being shot. She then saw McKinney toss the pistol in his car, get into the car, and drive away. Hessie testified that she never saw Tony or Shang with a gun.

¶ 5. Shang testified that he encountered McKinney outside the apartment and talked to him about making payments on the furniture. They went inside the apartment and talked. They then moved outside again and the discussion became louder. Shang admitted to being scared of McKinney because McKinney was much larger than he was. Shang testified that McKinney walked toward his car that was parked in front of the store. McKinney then turned and began firing a pistol. Shang testified there were several people standing around outside talking including Len Huddleston and Lee Stevenson, who had been standing by the garbage bin. McKinney was the only one who was armed or shooting.

¶ 6. Jeannette Willis, Shang’s sister, testified she was parked across the street waiting for Shang. She observed Shang and McKinney arguing over the furniture payments and noticed that a group of people had gathered. She saw McKinney draw a gun and shoot. McKinney then walked toward a blue car and shot downward twice. Willis then heard people yell for Tony to run. McKinney stopped, turned back, and shot four more times at Tony. McKinney then put the gun in his car, got into the car, and drove away. She did not observe the spectators as threatening to McKinney.

¶ 7. Tony then testified to his version of the events. He had been outside talking when he observed McKinney talking “rough” about the furniture to his father, Shang. Tony testified that he did not argue with McKinney, but that “[McKinney] might have mumbled something to me. I might have mumbled something back.” Tony stated that he could not remember what he had said, but he denied that he or anyone else threatened McKinney. Tony testified that Huddleston had just come out of the store and was standing around talking to another individual, Austin Weathersby. Huddleston was unarmed. Tony testified McKinney and Huddleston did not know each other, and to his knowledge, they had not even spoken to each other. Tony testified that as he walked away, with his back to McKinney, the shooting stax*ted. Tony saw Hud-dleston, who he had been walking toward, struck with a bullet. When he turned around, Tony saw that McKinney was pointing the gun at him. Tony ducked down by the car and heard his father yell for him to run. McKinney continued to shoot at him, and Tony got up and ran. Tony testified that he was unarmed, but he stated that if he had a gun that day “it might have been a different outcome.”

¶ 8. Stevenson testified he had been hanging around outside the store with friends and had just walked around the side of the building to urinate. Stevenson had a 1980 blue Chevrolet parked next to the garbage bin. Huddleston was standing at Stevenson’s car door. Stevenson testified that no one gave McKinney a reason to start shooting. When McKinney began shooting, Stevenson ran away, toward his home, which was nearby. After the shooting, Stevenson observed that the driver-side window of his car had been shot out.

119. Stevenson testified that once the shooting started, he ran home, retrieved a pistol, and returned to the site of the shooting. However, when he returned, McKinney was gone. On cross-examination, Stevenson testified that to his knowledge McKinney was the only one with a gun when the shooting started. He also testified if he had a gun at the time of the shooting, he would not have run.

¶ 10. Cornelius Conley, an officer with the Lambert Police Department, testified he was on patrol when he heard several shots, which were followed by three rapid shots and a single shot. He stopped his ear, and through his side mirror, he observed McKinney standing beside a blue pickup, holding a handgun and shooting. When McKinney drove away from the scene, Officer Conley followed and observed McKinney toss a weapon out of the passenger-side window of his car. Officer Conley eventually initiated a “felony stop,” pulling his car in front of McKinney. Officer Conley and Officer Milton Williams with the Mississippi Bureau of Investigations subsequently retrieved McKinney’s gun.

¶ 11. Thomas Simpson, a supervisor for the town of Lambert, testified he drove up to the scene of the shooting. He observed the gunshots, saw the victim fall, and observed a man, who was later identified as McKinney, shooting and running to his green car. McKinney then left. At the time of the shooting, Simpson saw only McKinney with a gun. Minutes after McKinney left, Simpson saw another man come up to the scene with a pistol, get into a blue car, and leave. Simpson thought the man came from the alley behind him. He told the man not to leave, but Simpson backed off when he saw the pistol. Simpson radioed police units and requested that they stop the person with a gun leaving the scene in a blue car, which they did. Simpson was unable to identify Stevenson as the person in the blue car.

¶ 12. Investigator Williams with the Mississippi Bureau of Investigation testified that he assisted in the arrest of McKinney and conducted the investigation of the shooting. Investigator Williams testified that during the course of his investigation, he retrieved a 9mm pistol that belonged to Stevenson. Investigator Williams submitted Stevenson’s pistol to the Mississippi Crime Laboratory for testing. His investigation and test results showed that Stevenson’s pistol was not involved in the shooting.

¶ 13. The State established through the testimony of several witnesses that Hud-dleston was shot in the back of the head with McKinney’s 9mm pistol. Authorities recovered shell casings in front of PDR Grocery, one projectile from the hood of Shang’s pickup truck, and one projectile from the driver’s door of Stevenson’s blue car. The bullet removed from Huddle-ston’s head and the bullets and casings found at the scene of the shooting were all fired from McKinney’s gun.

¶ 14. Marvella testified for the defense. She stated that Tony was agitated and calling McKinney names. Tony told McKinney, “Pull it, pull it out [expletive],” and motioned under his shirt. McKinney went up under his shirt and pulled out a gun; Marvella ran into the apartment. On cross-examination, she testified that people were standing around outside her door, but they were not intimidating McKinney.

¶ 15. Defense witness Latteria Joy testified she was present in the apartment when McKinney came to visit Marvella and the child. Joy testified that Shang and McKinney discussed the paying for the furniture. Tony came in the apartment arguing with McKinney. They went outside, came back in the apartment, and then went outside again. Shang was going to his truck, and Tony indicated he wanted to “pistol play.” Tony made motions to his side, but he did not have a gun. Joy testified while in the apartment with Mar-vella, Joy saw that McKinney had a gun in his “necessary pocket.” Before the shooting began, Joy saw Tony, two people standing behind him, and another person near the garbage bin. Joy quickly got her children inside the Tapers’ apartment and closed the door before the shooting began.

¶ 16. McKinney also called LaKizzy Ransom, a Lambert police officer who was off-duty at the time of the shooting to testify. Officer Ransom was parked down the street and observed the shooting. She testified that there were “a lot of people out there.” Officer Ransom heard shooting and saw a man, later identified by his clothes as McKinney, standing in the road shooting.

¶ 17. McKinney then testified to his version of events. McKinney stated that the discussion went back and forth between him and Shang, and Marvella told her father he was wrong while Tony kept interceding. They took the discussion outside and voices were raised; people started gathering around. McKinney told Marvella that he was leaving. McKinney testified that while he stood at the door, Shang approached “arguing at me,” while Tony walked up threatening McKinney and reaching up under his clothing. McKinney stated that he felt threatened and saw an individual with a gun and another individual getting into a blue Chevrolet car. He then drew his gun and fired at them because he felt threatened.

¶ 18. The jury acquitted McKinney of the aggravated assault of Shang, but convicted him of the aggravated assault of Tony, the murder of Huddleston, and possession of a firearm by a convicted felon. Aggrieved, McKinney appeals.

DISCUSSION

I. SELF-DEFENSE THEORY

¶ 19. On appeal, McKinney argues that the aggregate effect of several erroneous rulings by the trial court precluded him from adequately developing his theory of the case, which was that he acted in reasonable self-defense. We shall address each of these issues separately.

A. Impeachment of Tony Taper

¶ 20. McKinney argues that the trial court erred in not permitting him to impeach Tony with a prior conviction that' was more than ten years old. Mississippi Rule of Evidence 609(a)(1)(A) provides that “[f]or the purposes of attacking the credibility of a witness,” evidence that “a nonparty witness has been convicted of a crime shall be admitted subject to Rule 408, if the crime was punishable by death or imprisonment in excess of one year.... ” Rule 609(b), however, provides in pertinent part that:

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction ... unless the court determines, in the interests of justice, that the probative value of the conviction supported by the specific facts and circumstances substantially outweighs its prejudicial effect.

“The grant or denial of a hearing to determine in advance the admissibility of a prior criminal conviction for impeachment purposes is discretionary.” Wilcher v. State, 697 So.2d 1087, 1093 (Miss.1997) (quoting Settles v. State, 584 So.2d 1260,1264 (Miss.1991)).

¶ 21. McKinney asserts that the trial court abused its discretion in not weighing what he asserts is the “critical” probative value of Tony’s prior conviction for felon in possession of a firearm. McKinney argues that because Tony denied threatening him or possessing a firearm on the day of the shooting, evidence of a prior conviction for possessing a firearm was probative. This, however, confuses the issue. Rule 609 allows the use of prior convictions to impeach a witness’s credibility; it does not permit the introduction of past convictions to show a victim’s propensity to violence when the defendant alleges self-defense. Here, the past conviction is not particularly probative of honesty, and the events at issue occurred in the presence of numerous witnesses. Tony’s credibility, therefore, was not so central to proof of McKinney’s guilt that the trial court’s decision amounted to an abuse of discretion under Rule 609(b). This issue is without merit.

B. Limited Cross-examination of Stevenson; Exclusion of Stevenson’s Gun from Evidence

¶22. McKinney argues that he should have been permitted to cross-examine Stevenson concerning a pistol which was recovered from the scene of the shooting. Stevenson testified that he fled during the shooting, retrieved the pistol from his home, and returned to the scene. By the time he returned, however, the incident was over and McKinney was gone. On the State’s motion, the trial court limited McKinney’s cross-examination of Stevenson on this issue to whether Stevenson had the gun at the time of the shooting, which Stevenson answered in the negative. The trial court also refused to admit Stevenson’s gun into evidence.

¶ 23. The supreme court has held that “a criminal defendant is entitled to present his defense to the finder of fact, and it is fundamentally unfair to deny the jury the opportunity to consider the defendant’s defense where there is testimony to support the theory.” Randall v. State, 806 So.2d 185, 209(¶ 54) (Miss.2001) (quoting Terry v. State, 718 So.2d 1115, 1121(¶28) (Miss.1998)).

¶24. However, on our review of the record, we find no evidence before the trial court that Stevenson’s gun was present at the scene at the relevant times or that it was involved in any way; the testimony of the many witnesses to the shooting was unanimous that Stevenson did not have the pistol until after the incident. While McKinney did subsequently testify that he observed Stevenson make a threatening gesture with the pistol immediately before the shooting, this evidence was not offered to the trial court when it ruled on the motions, and defense counsel did not again attempt to introduce Stevenson’s pistol after a foundation for its admission had been laid. Therefore, we cannot find the trial court’s ruling in error. See id. Accordingly, this issue is without merit.

C. Rejection of McKinney’s Jury Instructions

¶ 25. McKinney argues that the trial court erred in refusing four of his jury instructions.

¶ 26. “[Wjhile a defendant is entitled to have the jury instructed regarding his theory of the case, the court may properly refuse an instruction if it states the law incorrectly, is covered elsewhere in the instructions, or is without an evidentiary foundation.” Cotton v. State, 933 So.2d 1048, 1050(¶ 7) (Miss.Ct.App.2006) (citing Heidel v. State, 587 So.2d 835, 842 (Miss.1991)).

¶ 27. In particular, McKinney argues that the trial court erred in refusing his manslaughter instructions, marked D-ll and D-12, which would have instructed the jury on heat-of-passion and culpable-negligence manslaughter, respectively. However, on our review of the record, neither instruction was supported by the evidence. D-ll stated in part: “If you find ... the Defendant was acting impulsively in the heat of passion after arguing with the decedent....”; but no evidence was introduced at trial that McKinney had ever spoken with the victim. In fact, McKinney testified that he shot Huddleston because the latter was getting into an automobile. Likewise, D-12 concerned culpable-negligence manslaughter, stating that the jury could find that McKinney fired “toward a group of people” and inadvertently hit Huddleston. McKinney, however, testified unequivocally that this was not the case; he acknowledged targeting Huddleston and deliberately shooting him. McKinney concedes that his remaining instructions, D-6 and D-15, which concerned self-defense, were adequately covered in other instructions given by the court. Accordingly, this issue is without merit.

D. Conclusion

¶ 28. Finding no error on any individual issue, we find no error in the aggregate. This assignment of error is without merit.

II. FAIR TRIAL

¶ 29. McKinney argues that the trial judge erred by making “multiple extraneous and inappropriate comments” that “diminished the solemnity of the proceedings” and denied McKinney a lair trial.

¶ 30. McKinney cites to several statements made by the trial court during the proceedings. He notes instances where the trial judge offered ad-libbed, folksy illustrations of questions during voir dire, admonished the venire for “giggling and whispering,” referred to a two-hour recess as “an afternoon nap,” and admonished a State witness for “laying [sic] back like he’s in the back seat of a car” while testifying. McKinney also cites this illustration offered by the court during voir dire, which stated:

I ask this in every case. We’ve had a couple of these little gangs that were around Clarksdale, Mississippi, and those jurors — you know, we made sure — I would ask the jurors, “Anybody tried to talk to you about the case?” We convicted a couple of those guys over there and things have really cooled down some. But has anybody attempted to talk to you about the case?

McKinney argues that this statement suggested to the jury that McKinney was a member of a gang whose his conviction would “cool down” the community.

¶ 31. McKinney made no contemporaneous objection to any of these statements in the trial court. On appeal, McKinney acknowledges the procedural bar, but he urges reversal, arguing that the aggregate effect of these comments denied him a fair trial because the jury was induced to treat the matter lightly. McKinney urges that this Court teeat this matter as plain error.

¶ 32. The supreme court has stated:

Jocularity and humor, by a court, should not be indulged in when a man’s liberty is at stake. The officers of a court, and especially the judge, district attorney and sheriff, because of the attributes of the offices they hold, unconsciously exert tremendous influence in the trial of a case, and they should be astutely careful so that unintentionally the jurors are not improperly influenced by their words and actions.

Roberson v. State, 185 So.2d 667, 670 (Miss.1966). “The great danger, particularly in a criminal case, is that the weight and dignity of the court accompan[y] each question or comment, although not so intended by the judge.... ” Thompson v. State, 468 So.2d 852, 854 (Miss.1985).

¶ 33. We have thoroughly reviewed the record, and we are satisfied that McKinney received a fair trial. While we do not condone the apparent informality of some of the trial judge’s comments, we can find no instance where the trial court made light of the proceedings or joked at the defendant’s expense. Instead, the record reflects that the jury was made well aware of the importance of their role and their duty to conscientiously consider the evidence, apply the law, and reach a just verdict. Certainly, the trial court’s statements do not amount to plain error. This issue is without merit.

¶ 34. THE JUDGMENT OF THE CIRCUIT COURT OF QUITMAN COUNTY OF CONVICTION OF COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS; COUNT III, MURDER, AND SENTENCE OF LIFE; AND COUNT IV, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF THREE YEARS, WITH ALL SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO QUITMAN COUNTY.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Defense counsel proffered that he wished to ask Stevenson whether the pistol was chambered in 9mm, the same caliber used by McKinney. Subsequently, a witness for the State testified that he had tested Stevenson’s gun and determined that, although it was a 9mm, it did not fire any of the bullets or shell casings recovered from the scene. Accordingly, we find that any error in limiting cross-examination of Stevenson was harmless.

      . The record reflects that laughter followed some of these comments or illustrations.

      . We note that the trial court granted McKinney’s motion to preclude the State from mentioning that McKinney may have been a gang member.


author: KING, C.J.,

text:
    Jimmy Dale MAYHAN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-CP-01078-COA.
    Court of Appeals of Mississippi.
    June 16, 2009.
    Rehearing Denied Oct. 27, 2009.
    Certiorari Denied Feb. 4, 2010.

      Jimmy Dale Mayhan, pro se, appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court.

¶ 1. Jimmy Dale Mayhan pled guilty in the Circuit Court of DeSoto County to one count of fondling a child. Mayhan was sentenced to serve ten years in the custody of the Mississippi Department of Corrections (MDOC), with five years of post-release supervision, and ordered to pay a $1,000 fine. Mayhan later filed a motion for post-conviction relief, which the trial court dismissed. Mayhan timely filed this appeal, raising the following issues:

I. Whether he received ineffective assistance of counsel;
II. Whether he entered an intelligent and voluntary guilty plea;
III. Whether the trial court abused its discretion by accepting his guilty plea; and
IV. Whether the trial court abused its discretion by summarily dismissing his motion for post-conviction relief.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 4, 2005, Mayhan was indicted for four counts of fondling a child in violation of Mississippi Code Annotated section 97-5-23 (Supp.1998). On April 26, 2006, Mayhan entered an open Alford plea to Count IV of the indictment. Pursuant to the plea agreement, Counts I, II, and III were remanded to the files. The trial court deferred Mayharis sentencing hearing to May 30, 2006.

¶ 3. At the sentencing hearing, Mayhan was represented by new counsel, who moved to set aside Mayharis guilty plea. Mayhan argued that he felt as if he had no choice but to plead guilty because his previous attorney did not believe that he could win the case for Mayhan and refused to help him if he went to trial. The trial court acknowledged that Mayhan was hesitant to enter his guilty plea. However, the trial court found that Mayhan had been thoroughly advised of his rights and understood that he was entering a guilty plea. Therefore, the trial court denied Mayhan’s motion to set aside his guilty plea. Mayhan was sentenced to serve ten years in the custody of the MDOC, with five years of post-release supervision. Mayhan was also ordered to pay a $1,000 fine to the Mississippi Children’s Trust Fund.

¶ 4. On December 21, 2006, Mayhan filed a motion for post-conviction relief. In his motion, Mayhan stated that the affidavits of several witnesses were attached; however, no affidavits accompanied the motion. In the order dismissing Mayhan’s motion for post-conviction relief, the trial court noted that Mayhan’s new attorney was contacted regarding the missing affidavits. However, no affidavits had been submitted by August 31, 2007, the day on which the trial court ruled on Mayhan’s motion. Finding that Mayhan failed to provide any evidence in support his claims, the trial court dismissed his motion for post-conviction relief.

¶ 5. Mayhan timely filed his notice of appeal on September 19, 2007. Thereafter, on October 3, 2007, Mayhan filed a motion to reconsider with the trial court, attaching some of the missing affidavits to the motion.

ANALYSIS

¶ 6. This Court will not disturb a trial court’s dismissal of a motion for post-conviction relief unless it was clearly erroneous. Williams v. State, 872 So.2d 711, 712(2) (Miss.Ct.App.2004). However, issues of law are reviewed de novo. Id.

I. Ineffective Assistance of Counsel

¶ 7. Mayhan argues that he received ineffective assistance of counsel from his first attorney during his guilty plea proceeding. There is a strong but rebuttable presumption that trial counsel was competent and performed within the wide range of reasonable conduct expected from counsel. Busby v. State, 994 So.2d 225, 227(8) (Miss.Ct.App.2008). To rebut this presumption, the petitioner must show that: (1) trial counsel’s performance was deficient, and (2) that trial counsel’s deficiency prejudiced his defense. Id. More specifically, if the petitioner pled guilty on the advice of his trial counsel, he must prove that his trial counsel committed “unprofessional errors of substantial gravity,” without which he would not have pled guilty. Cole v. State, 918 So.2d 890, 894(10) (Miss.Ct.App.2006).

¶ 8. Mayhan argues that during his guilty plea proceeding, his first attorney became “lackadaisical” in his desire to defend him. Mayhan claims that his first attorney did not make any preparations for trial, and he insisted that Mayhan enter a guilty plea. Mayhan also contends that his first attorney threatened him and coerced him into entering a guilty plea by telling him that he could be in prison for the rest of his life if he went to trial and was convicted. Mayhan maintains that he wanted to proceed to trial to prove his innocence. However, Mayhan alleges that his first attorney would not assure him that he would defend him if he decided to go to trial. Mayhan asserts that, based on his first attorney’s actions, he had no alternative but to plead guilty; and if it were not for his first attorney’s deficient performance, he would not have pled guilty to the charge.

¶ 9. The trial court found that Mayhan’s first attorney effectively performed his duties by informing Mayhan of the likely outcome of his case and by informing May-han that it would be in his best interest to enter a guilty plea. This Court has held that “[c]ounsel has ‘a duty to fairly ... inform the client of the likely outcome of a trial based upon the facts of the case.’ ” Robinson v. State, 964 So.2d 609, 612(8) (Miss.Ct.App.2007) (quoting Daughtery v. State, 847 So.2d 284, 287(6) (Miss.Ct.App.2003)). In this case, Mayhan was charged with four counts of fondling a child. Each count carried a maximum penalty of fifteen years’ imprisonment. See Miss.Code Ann. § 97-5-23(1) (Rev.2006). Thus, at fifty-five years old, Mayhan faced a possible sixty-year prison sentence. Based on the foregoing, we find that Mayhan’s first attorney simply informed him of the likely outcome of his case, believing it would be in Mayhan’s best interest to enter a guilty plea.

¶ 10. In regard to the remainder of Mayhan’s allegations, Mayhan failed to provide the trial court with any evidence or affidavits in support of his allegations before the trial court ruled on his motion. This Court has held that the trial court may dismiss a motion for post-conviction relief if the petitioner fails to submit affidavits in support of his allegations, thereby supporting his position with only his bare assertions. Hamberlin v. State, 995 So.2d 142, 145-46(11) (Miss.Ct.App.2008). May-han’s bare allegations are insufficient to prove that he received ineffective assistance of counsel. Thus, we find that the trial court did not err by dismissing this claim. This issue is without merit.

II. Intelligent and Voluntary Guilty Plea

¶ 11. Mayhan argues that his first attorney misrepresented the length of his potential sentence, stating that he could be in prison for the rest of his life if he went to trial and was convicted. Mayhan contends that his first attorney informed him that he would only receive probation and a fine if he pled guilty. Mayhan claims that he only entered his guilty plea due to fear, deception, and improper inducements.

¶ 12. As previously mentioned, Mayhan failed to submit any affidavits or other evidence to the trial court to support his claim. The trial court found that Mayhan’s claims were without merit based on the plea colloquy in the record.

¶ 13. The plea colloquy shows that the trial court thoroughly explained to Mayhan the effects of his Alford plea and assured Mayhan that he could proceed to trial if he wished. Mayhan acknowledged that he understood the consequences of entering a guilty plea, and he denied that he was coerced or threatened to enter a guilty plea. Despite the statements he made during his guilty plea proceeding, Mayhan contends that he was coerced into entering a guilty plea because his first attorney told him that he could be in prison for the rest of his life if he did not plead guilty. The law is clear that “[t]he fact that a defendant pled guilty because he feared a harsher sentence otherwise, does not render the plea involuntary.” Robinson, 964 So.2d at 612(9) (quoting Jones v. State, 922 So.2d 31, 35(10) (Miss.Ct.App.2006)). Thus, whether Mayhan pled guilty to avoid a harsher sentence does not render his plea involuntary.

¶ 14. Furthermore, the plea colloquy reflects that the trial court thoroughly informed Mayhan that he faced a mandatory minimum sentence of two years in prison, with a maximum sentence of fifteen years in prison, and informed him of all applicable fines. See Miss.Code Ann. § 97-5-23(1). This Court has held that “[w]here the court correctly explains the potential penalty at a plea hearing, any harm resulting from prior erroneous advice is ameliorated[,] and the error can no longer afford the petitioner post-conviction relief.” Daughtery, 847 So.2d at 289(21) (citing Roland v. State, 666 So.2d 747, 750 (Miss.1995)). Because the trial court properly informed Mayhan of his potential sentence, we find that the trial court did not err by finding that Mayhan entered an intelligent and voluntary guilty plea. This issue is without merit.

III. Acceptance of Mayhan’s Guilty Plea

¶ 15. Mayhan argues that the trial court erred by accepting his guilty plea for two reasons: (1) it was evident that he did not want to enter a guilty plea, and (2) the trial court failed to establish the required factual basis for his guilty plea.

¶ 16. In the order dismissing Mayhan’s motion for post-conviction relief, the trial court did acknowledge that May-han was hesitant in entering his guilty plea. However, a review of the record shows that the trial court explained to Mayhan several times that he could proceed to trial if he wished. Mayhan assured the trial court that he thought it was in his best interest to enter a guilty plea and declined to go to trial. Based on the foregoing, we do not find that the trial court erred by accepting Mayhan’s guilty plea.

¶ 17. Next, Mayhan claims that the trial court did not establish whether there was a factual basis for his guilty plea. The law is clear that a trial court may accept a defendant’s guilty plea as long as the trial court determines that there is sufficient evidence, if so required, to prove the defendant’s guilt. Ray v. State, 876 So.2d 1032, 1035(12) (Miss.Ct.App.2004) (citing Corley v. State, 585 So.2d 765, 767 (Miss.1991)). During the guilty plea proceeding, the State informed the trial court that it was prepared to prove that between June 1, 2004, and July 30, 2005, Mayhan fondled a seven-year-old child on numerous occasions. The State was prepared to present two witnesses — a forensic psychologist, who interviewed the child, and a family friend, who learned of the abuse from Mayhan’s wife.

¶ 18. During the guilty plea proceeding, Mayhan denied that those alleged incidents had occurred. However, Mayhan entered an Alford plea. By entering an Alford plea, although maintaining his innocence, Mayhan intelligently and voluntarily consented to a prison sentence. Cole, 918 So.2d at 892-93(4) (citing Alford, 400 U.S. at 37, 91 S.Ct. 160 allows “[a]n individual accused of a crime [to] voluntarily, knowingly, and understandably consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime”).

¶ 19. A review of the record clearly shows that the trial court ascertained that Mayhan understood the effects of his Alford plea. The record also establishes a factual basis for Mayhan’s guilty plea. Thus, we find that the trial court did not err by accepting Mayhan’s guilty plea. This issue is without merit.

IV. Summary Dismissal of Motion for Post-Conviction Relief

¶ 20. Mayhan argues that the trial court abused its discretion by summarily dismissing his motion for post-conviction relief because he had affidavits from several people to support his claims. As previously mentioned, Mayhan failed to attach these affidavits to his motion for post-conviction relief. These affidavits were attached to his motion to reconsider, which Mayhan did not file until after he had filed his notice of appeal to this Court. Mayhan maintains that his second attorney was at fault for the missing affidavits, and he contends that the trial court should have held an evidentiary hearing on the matter.

¶21. Before summarily dismissing a motion for post-conviction relief, the trial court must examine “[t]he original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack[.]” Miss.Code Ann. § 99-39-11(1) (Rev.2007). “Summary dismissal of a [motion] for post-conviction relief is proper ‘if it plainly appears’ from the record ‘that the movant is not entitled to any relief....’” Winston v. State, 893 So.2d 274, 276(6) (Miss.Ct.App.2005) (citations omitted).

¶ 22. Mayhan filed his motion for post-conviction relief on December 21, 2006. The trial court ruled on the motion on August 31, 2007. In its order, the trial court noted that Mayhan’s second attorney was contacted regarding the missing affidavits. However, no affidavits had been submitted to the trial court by the time the trial court ruled on Mayhan’s motion. Therefore, based on the lack of any affidavits or other evidence to support Mayhan’s claims, we find that the trial court properly summarily dismissed Mayhan’s motion for post-conviction relief.

¶ 23. Furthermore, while Mayhan has provided this Court with copies of the affidavits, this Court is limited to the trial court record when reviewing a claim on appeal. Gonzales v. State, 915 So.2d 1108, 1110(5) (Miss.Ct.App.2005). Since Mayhan failed to provide these affidavits to the trial court before the trial court ruled on his motion, we will not consider these affidavits on appeal. This issue is without merit.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.

      . North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).


author: ISHEE, J.,

text:
    CLAIBORNE COUNTY, Mississippi and Claiborne County Board of Supervisors, Appellants, v. Eddie Ray PARKER, Appellee.
    No. 2008-CA-00126-COA.
    Court of Appeals of Mississippi.
    June 23, 2009.
    Rehearing Denied Nov. 17, 2009.
    Certiorari Denied Feb. 4, 2010.

      Vangela Meehelle Wade, Ashley Eley Cannady, Ridgeland, attorneys for appellants.
    Amy D. Saling, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Eddie Ray Parker was terminated from his employment with the Claiborne County Fire Department for insubordination on April 5, 2006. Pursuant to Rule VI of the Personnel Policies and Procedures for Claiborne County, Parker requested a hearing before the Claiborne County Employee Grievance Committee (“Grievance Committee”), a three-person panel formed by the Claiborne County Board of Supervisors (“Board”). On April 14, 2006, the Grievance Committee determined that Fire Chief Kelvin Shaifer had lacked “sufficient documentation or evidence of insubordination” to terminate Parker. Parker subsequently requested “an audience with the Board to resolve the matter.” The Board commenced a hearing regarding Parker’s termination, but it was adjourned when Parker requested to obtain assistance of counsel. The hearing reconvened on or about July 14, 2006, and the Board upheld Parker’s termination in a unanimous decision on August 1, 2006. Parker appealed the Board’s decision to the Claiborne County Circuit Court, which overturned the Board’s decision to terminate Parker and awarded a judgment against Claiborne County for Parker’s full back pay and benefits. Aggrieved, Claiborne County and the Board filed the present appeal.

DISCUSSION

¶ 2. Before we review the issues raised by the Appellants, we must first determine if the circuit court had jurisdiction to hear Parker’s appeal. Mississippi Code Annotated section 11-51-75 (Rev. 2002) provides that “[a]ny person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision[.]” In addition, the supreme court has held that “[ajppeals from decisions of the board of supervisors must be filed within ten (10) days of the adjournment of the session where the decision is rendered.” House v. Honea, 799 So.2d 882, 883 (¶ 5) (Miss.2001). The ten-day time limit “is both mandatory and jurisdictional.” Newell v. Jones County, 731 So.2d 580, 582 (¶ 10) (Miss.1999) (citation omitted). An appellate court does not have jurisdiction to consider an appeal that was not perfected within the statute’s time constraints. Id.

¶ 3. Under section 11-51-75, Parker had until August 11, 2006, to file a notice of appeal from the board’s decision. Parker’s notice of appeal to the circuit court states that it was submitted on August 10, 2006. However, the appeal was not filed until August 15, 2006. If an appeal is not filed within ten days of the adjournment of the board meeting at which the decision was made, “neither the circuit court, nor this Court, has jurisdiction to consider the appeal.” Tilghman v. City of Louisville, 874 So.2d 1025, 1026 (¶ 5) (Miss.Ct.App.2004) (citing House, 799 So.2d at 883 (¶9)).

¶ 4. There is nothing in the record that indicates what caused the delay between the date the appeal was allegedly submitted and the date it was actually filed. The date of August 11, 2006, fell on a Friday; therefore, the filing would not have been delayed by a weekend, nor was it a holiday. Furthermore, the record does not contain anything that suggests that Parker had been granted additional time to file his appeal. The Board’s decision was rendered on August 1, 2006, and Parker’s appeal to the circuit court was filed on August 15, 2006, which exceeded the ten-day time limit set forth in section 11-51-75. Accordingly, we find that the circuit court lacked jurisdiction to consider Parker’s appeal, as does this Court. Therefore, the judgment of the circuit court is vacated, and the decision of the Board of Supervisors is reinstated.

¶ 5. THE JUDGMENT OF THE CIRCUIT COURT OF CLAIBORNE COUNTY IS VACATED, AND THE DECISION OF THE BOARD OF SUPERVISORS IS REINSTATED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


text:
    Melvin ALESICH, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00875-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.
    Rehearing Denied Nov. 24, 2009.
    Certiorari Denied Feb. 4, 2010.

      Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Melvin Alesich was convicted in the Harrison County Circuit Court of burglary of a dwelling. He was sentenced to twenty-five years as a habitual offender in the custody of the Mississippi Department of Corrections without eligibility for parole or probation. Aggrieved, Alesich appeals asserting that jury instruction S-l improperly amended the indictment and that the jury’s verdict was against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Eva Stephens and Alesich first met at a local water slide in Gulfport, Mississippi. They spoke briefly, and Alesich asked Stephens for her telephone number, which she gave him. Their second meeting occurred when she invited him to accompany her to a friend’s house. Alesich and Stephens spoke on the phone thereafter, and she invited him to join her at a neighbor’s barbeque. Their fourth and final meeting occurred when Alesich appeared at Stephens’s home unannounced one evening as she was preparing to go to a friend’s house, and she invited him to go with her. At the end of the evening, they returned to Stephens’s home, and she told him that she did not wish to see him anymore. Alesich said he was okay with her decision, and that was the last time they spoke. However, Alesich subsequently wrote two notes and left them for Stephens to find. She found the first note stuck on her mailbox that read, “Eva, I love you forever.” The second note had been left on her car and said, “I love you, Melvin.”

¶ 3. According to Stephens, on August 19, 1996, at approximately 4:00 a.m., she was asleep in the bed with her two-year-old daughter when she awoke to find Ale-sich climbing through her bedroom window. Stephens and her daughter began to scream, and he jumped on top of Stephens and tried to quiet her by covering her mouth. Alesich then hit Stephens across her face and climbed back out the window through which he had allegedly entered. Nothing in the house was stolen. Stephens immediately called 911, and she told the dispatcher what had happened, the identity of the intruder, and that he drove a yellow truck.

¶ 4. Officer Christopher Parrish with the Gulfport Police Department was the first officer to respond. At trial, Officer Parrish testified that when he arrived at Stephens’s home that night, he noticed the area above her left eye was red and was beginning to swell. Officer Parrish searched Stephens’s house and discovered that the window in her bedroom was open and that the screen had been either torn off or pried open. He also found a chair outside that had been placed in front of Stephens’s bedroom window. He attempted to get fingerprints from the inside and outside of the house, but he was unable to do so.

¶ 5. In the meantime, Officer Lynette Woodard received a dispatch with Alesich’s name and vehicle description. She patrolled the area near Stephens’s house and saw a yellow Ford truck parked on a nearby street. When Officer Woodard called its tag number in to dispatch, she was told that the truck was registered to Alesich. She began inspecting the vehicle, and Ale-sich walked around from behind a house and approached the truck. He identified himself to Officer Woodard as “Melvin Ale-sich,” and she placed him in handcuffs. As she was doing so, Alesich told her that “he was just trying to get Miss Eve’s [sic] attention.” Officer Woodard drove Alesich to Stephens’s house, and Stephens identified him as the intruder.

¶ 6. Detective Claud Guinn with the Gulfport Police Department testified that he also responded to Stephens’s call. When he arrived at the scene, he spoke with Stephens and observed that her left eye was bruised and swelling. Detective Guinn then went to the police station to speak with Alesich, but Alesich did not wish to give a statement. Alesich was processed and placed in the adult detention facility. On May 5, 1997, a jury found Alesich guilty of burglary of a dwelling. He was sentenced as a habitual offender to twenty-five years in the custody of the Mississippi Department of Corrections without eligibility for parole or probation.

¶ 7. Alesich filed a pro se motion for an out-of-time appeal, and it was reviewed by a panel of justices from the Mississippi Supreme Court. The circuit court had previously found that Alesich’s counsel had filed a post-trial motion on May 29, 1997. However, his attorney never set the motion for a hearing; no order had been entered disposing of the motion; and no order had been entered allowing his attorney to withdraw as counsel. In an order ruling on Alesich’s motion for an out-of-time appeal, the supreme court noted that the time for filing a notice of appeal does not begin running until the circuit court ruled on his post-trial motion. Therefore, the supreme court found that Alesich’s motion for an out-of-time appeal was filed prematurely, and the court dismissed the motion without prejudice. Following entry of the supreme court’s order, the circuit court entered an order on April 21, 2008, denying Alesich’s motion for a new trial. He then timely filed the present appeal.

DISCUSSION

I. Whether jury instruction S-l improperly amended the indictment for burglary.

¶ 8. Alesich first complains that jury instruction S-l was an indirect amendment to the indictment. He contends that the alleged amendment “was substantive in nature, materially changed an element of the original offense [with which he was] charged, materially altered his defense to the indictment, and was reversible error as it circumvented the authority of the grand jury.”

¶ 9. The purpose of an indictment is to put a defendant on notice of the charges against him so that he is able to prepare an adequate defense. Evans v. State, 916 So.2d 550, 551(¶ 5) (Miss.Ct.App.2005). “All that is required is that the indictment provide ‘a concise and clear statement of the elements of the crimes charged.’ ” Id. at 551-52(¶ 5) (quoting Williams v. State, 445 So.2d 798, 804 (Miss.1984)). It is well established that courts may amend indictments to correct defects of form, but only the grand jury may correct defects of substance. Jones v. State, 912 So.2d 973, 976(¶ 9) (Miss.2005). In Wilson v. State, 935 So.2d 945, 949(¶ 12) (Miss.2006) (citing Swington v. State, 742 So.2d 1106, 1118(¶ 44) (Miss.1999)), the supreme court stated:

The test of whether an accused is prejudiced by the amendment of an indictment or information has been said to be whether or not a defense under the indictment or information as it originally stood would be equally available after the amendment is made and whether or not any evidence the accused might have would be equally applicable to the indictment or information in the one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of substance.

¶ 10. In the present case, the indictment provided that Alesich, “on or about August 10, 1996, did unlawfully, wilfully, feloniously and burglariously break and enter the dwelling house of Eva Stephens ... with the intent to steal personal property therein.... ” In contrast, when jury instruction S-l was given, it stated that Alesich had been “charged by an indictment with the offense of [b]urglary by breaking and entering the dwelling house of Eva Stephens with the intent to commit a crime once inside.” Alesich argues that this jury instruction forced him to alter his defense strategy. He alleges that he had originally planned to prove that he was not guilty of burglary by showing that he had not intended to steal any personal property from Stephens’s house. Instead, at trial, jury instruction S-l required him to prove that he had not intended to commit a crime inside Stephens’s house.

¶ 11. “An instruction which fails to instruct the jury in language that tracks the indictment does not necessarily render it fatally defective.” McDonald v. State, 881 So.2d 895, 905(1147) (Miss.Ct.App.2004). In order to determine if a jury was properly instructed, this Court must read all of the jury instructions that were given together as a whole. Goodin v. State, 977 So.2d 338, 340(¶ 10) (Miss.2008) (citation omitted). In this case, jury instruction S-1 was only one of the several instructions that were given. Jury instruction S-5 further provided that “if there is a breaking and entering a dwelling at night, accompanied by flight when discovered, an inference may be made that the object of the breaking and entering was theft, even though nothing was taken.”

¶ 12. Alesich was indicted for burglary of a dwelling under Mississippi Code Annotated section 97-17-23 (Supp.1996). The statute describes burglary as “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....” Miss.Code Ann. § 97-17-23.

¶ 13. Burglary consists of two essential elements: (1) unlawfully breaking and entering, and (2) having the intent to commit a crime once inside. Winston v. State, 479 So.2d 1093, 1095 (Miss.1985). Theft, as described by jury instruction S-5, is a crime. Therefore, we find that the indictment properly notified the defense of the crime with which Alesich was charged, and that the jury was properly instructed.

¶ 14. Furthermore, even if jury instruction S-l could be considered an amendment to the indictment, it was one of form and not of substance. Alesich neither testified nor called any witnesses in his defense. The only measure of what his defense theory was occurred during opening statements when his attorney told the jury the following:

[Alesich] would not, I guess take [Eva’s] subtle hints to leave her alone. He kept wanting to have a relationship in the sense that he would try to talk to her. And the only way that I guess the evidence is going to show what we’re going to try to show is that there was only one way to get rid of him, and that was to charge him with a crime. It’s not a fatal attraction, but it’s an attraction that got him arrested.
You’re going to see, or not see I should say, that there were no fingerprints found in the house. There were no footprints found in the house. There were no signs that anyone came in the house other than the testimony of Eva.

From this, it appears that Alesich’s defenses were that he did not break into Eva’s house that night to commit a crime or for any other reason, and that Eva fabricated the claim so that he would be charged with a crime and, therefore, leave her alone.

¶ 15. Alesich’s defenses — that he did not break into Eva’s house that night and that Eva framed him — were equally available to him whether he was charged with breaking and entering Eva’s house with the intent to steal personal property, as stated in the indictment, or with the intent to commit some unspecified crime therein, as stated in jury instruction S-l. It follows that Alesich’s defenses were not prejudiced by the language of jury instruction S-l. Accordingly, even if jury instruction S-l could be considered an amendment to the indictment, it was one of form rather than substance. We find that this issue is without merit.

II. Whether the jury’s verdict was against the overwhelming weight of the evidence.

¶ 16. Alesich also complains that the circuit court erred in denying his motion for a new trial because the verdict was against the overwhelming weight of the evidence. In determining whether a jury’s verdict was against the overwhelming weight of the evidence, “this Court must accept as true the evidence which supports the verdict and will reverse that verdict only when it is determined that the circuit court has abused its discretion in failing to grant a new trial.” Smith v. State, 904 So.2d 1217, 1221(¶ 12) (Miss.Ct.App.2004).

¶ 17. Alesich alleges that the opening in the window screen was too small for a person to fit through; however, the jury was shown photographs of the window at trial, and they determined that Alesich had been able to climb through the opening. It has long been the rule that the jury has “the responsibility of weighing and considering conflicting evidence, evaluating the credibility of witnesses, and determining whose testimony should be believed.” Ford v. State, 737 So.2d 424, 425(¶ 8) (Miss.Ct.App.1999). As such, “[t]his Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Hodges v. State, 906 So.2d 23, 26(¶ 11) (Miss.Ct.App.2004) (citation omitted). Therefore, we accept the jury’s findings that the window opening was large enough for Alesich to have climbed through it.

¶ 18. Alesich further argues that the only evidence of his being inside Stephens’s house that night is Stephens’s testimony. He points to the fact that the “alleged assailant did not take any money or property” from Stephens and that Officer Parrish was unable to lift fingerprints from Stephens’s house. However, upon considering the other evidence, this argument also fails. First, two police officers testified that Stephens’s face was bruised and swollen when they arrived at her house that night. Second, the officers found a chair outside that had been placed in front of the window through which Ale-sich had allegedly climbed. Third, the screen, which Stephens testified had been nailed on, looked as though it had been torn off or pried open. Finally, Alesich had been found near Stephens’s home, and as he was being arrested, he told Officer Woodard that “he was just trying to get Miss Eve’s [sic] attention.” Each of the foregoing supports the jury’s guilty verdict. Therefore, we find that the jury’s verdict was not against the overwhelming weight of the evidence. This issue is also without merit.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


author: LEE, P.J.,

text:
    Melissa WINTER, Appellant, v. WAL-MART SUPERCENTER and American Home Assurance Company, Appellees. Wal-Mart Stores, Inc. and American Home Assurance Company, Appellants, v. Melissa Winter, Appellee. Wal-Mart Stores, Inc. and American Home Assurance Company, Appellants, v. Melissa Winter, Appellee.
    Nos. 2007-WC-01717-COA, 2008-WC-00391-COA, 2008-WC-00392-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.
    Rehearing Denied Oct. 27, 2009.
    Certiorari Denied Feb. 4, 2010.

      John P. Fox, Houston, attorney for appellant.
    Sandra T. Doty, Roxanne P. Case, Jackson, attorneys for appellees.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Melissa Winter filed a petition to controvert against Wal-Mart and American Home Assurance Company (collectively referred to as Wal-Mart), claiming that she sustained a work-related injury on February 25, 2002. Wal-Mart answered and admitted that the injury was compen-sable, but Wal-Mart disputed the nature and extent of the disability being claimed by Winter.

¶ 2. On November 10, 2003, the administrative law judge (ALJ) entered an order dismissing Winter’s claim for failure to file a completed prehearing statement. The order stated that Winter could file a motion to reinstate the claim, but the motion must be accompanied by a properly completed prehearing statement. Winter failed to seek review or reconsideration within twenty days, so the order became final on November 30, 2003.

¶ 3. On October 26, 2004, Winter filed a motion to reopen and reinstate her claim with the Mississippi Workers’ Compensation Commission. Winter again filed a prehearing statement, which was deemed incomplete. On December 8, 2004, Winter filed an amended motion to reopen and reinstate her claim on the docket, explaining that her original attorney had passed away and that she had difficulties with subsequent counsel. A hearing was held on March 9, 2005, before the ALJ, who found that Winter had failed to demonstrate a change in conditions or a mistake in a determination of fact as required by Mississippi Code Annotated section 71-3-53 (Rev.2000), which would necessitate reinstatement of the case on the docket. The ALJ also noted that Winter had still failed to file a completed prehearing statement. The Commission affirmed the order of the ALJ. Winter next appealed to the Circuit Court of Union County, which affirmed the decision of the Commission.

¶ 4. The trial court’s order was entered on August 21, 2007, and Winter filed her notice of appeal on October 2, 2007, beyond the thirty-day time limitation to file after the date of entry of the judgment or order that was appealed from. M.R.A.P. 4(a). Wal-Mart filed an objection to Winter’s untimely filed notice of appeal and requested a dismissal of the notice of appeal. Winter admitted that the notice was filed untimely and filed a motion to reopen the time for appeal. The trial court granted the motion to reopen the time for appeal. Winter appeals the denial by the Commission of her motion to reinstate her claim for a full hearing on the merits. Wal-Mart appeals the order granting the reopening of the time for appeal to this Court. These two appeals have been consolidated by this Court for review.

DISCUSSION

I. MOTION TO REOPEN THE TIME FOR APPEAL

¶ 5. Before we discuss Winter’s appeal of the denial of her motion to reopen and reinstate her claim with the Commission, we must address Wal-Mart’s appeal of the trial court’s decision to reopen the time for Winter to file her notice of appeal.

¶ 6. Mississippi Rule of Appellate Procedure 4(a) states that “the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” Rule 4(h) provides a limited opportunity for the reopening of the time to file a notice of appeal when the notice of entry of a judgment, which is required to be mailed by the clerk of the trial court, is either not received by a party or is received so late as to impair the opportunity to file a timely notice of appeal. M.R.A.P. 4(h) cmt. We review the decision of the trial court to grant or deny a motion pursuant to Rule 4(h) for abuse of discretion. Pre-Paid Legal Servs., Inc. v. Anderson, 873 So.2d 1008, 1009(¶ 4) (Miss.2004). Rule 4(h) states:

The trial court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

¶ 7. The order affirming the Commission’s dismissal of Winter’s claim for failure to file a completed prehearing statement was entered on August 21, 2007. On October 1, 2007, upon learning that the order had been entered, Winter mailed her notice of appeal. The notice of appeal was received and filed on October 2, 2007. Wal-Mart filed a motion to dismiss the notice of appeal as untimely filed. On October 8, 2007, Winter then filed a motion to reopen the time for appeal. Winter responded that she never received notice from the clerk that the judgment had been entered. Winter’s counsel stated by affidavit that no notice of the entry of the order was received by Winter. The trial court extended the time to appeal through October 2, 2007, the date that the notice of appeal was filed.

¶ 8. Wal-Mart argues that Winter did not meet her burden under Rule 4(h) because she did not dispute that she received a copy of a letter from the trial court to the Union County Circuit Court clerk dated August 24, 2007, requesting that the order be filed. Wal-Mart argues that because Winter failed to follow up on this letter, she cannot show excusable neglect.

¶ 9. Winter did not receive notice within twenty-one days of the entry of the judgment, and Wal-Mart does not allege that it was prejudiced in any way by the reopening of the time for appeal. See M.R.A.P. 4(h). Winter filed her motion to reopen the time for appeal within seven days of receiving notice of the entry of judgment. Therefore, we find that the trial court did not abuse its discretion by reopening the time for appeal. Winter had no need to show excusable neglect. Therefore, we find that this issue is without merit, and the trial court’s decision to reopen the time for appeal is affirmed.

II. DISMISSAL FOR FAILURE TO FILE A COMPLETED PRE-HEARING STATEMENT

¶ 10. Winter argues that the Commission erred in dismissing her case for the failure to file a completed prehearing statement. Winter argues that it was impossible for her to file a completed pre-hearing statement at all relevant times because Wal-Mart continued to pay for her medical treatment during the pen-dency of this matter.

¶ 11. The decision of the Commission will be reversed only if it is not supported by substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law. Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778(¶ 6) (Miss.2003) (citing Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992)). We will exercise de novo review on matters of law, “but the interpretation of the Commission of the Workers Compensation Law is to be accorded great weight and deference.” KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss.1991).

¶ 12. Mississippi Workers’ Compensation Commission Procedural Rule 5 states that the “[fjailure of the claimant to timely file the prehearing statement may result in the dismissal of the case or other sanctions.” Therefore, it was within the Commission’s discretion to dismiss Winter’s claim. Winter next argues that trial court erred in denying her motion to reopen and reinstate the case for placement on the docket pursuant to Mississippi Code Annotated section 71-3-53. Section 71-3-53 states in part:

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 ... review a compensation case....

¶ 13. Winter argues that there was a mistake in a determination of fact because Wal-Mart continued to pay for her medical treatment until after the November 10, 2003, order of dismissal. Wal-Mart paid for Winter’s medical bills until February 2005, when it notified her doctor that it would no longer pay. It also paid for her prescriptions at the Wal-Mart Pharmacy until August 2004. Winter argues that because Wal-Mart continued to pay for her treatment, a prehearing statement was premature at the time of the dismissal. We cannot find that Winter’s argument states any kind of mistake in fact or misrepresentation made to her by Wal-Mart. Winter failed to include in her prehearing statement that Wal-Mart was paying for her medical treatments and prescriptions. Therefore, she cannot now claim that this was a mistake in a determination of fact which would warrant the reinstatement of her case.

¶ 14. In addition to the argument stated above, Winter makes several other arguments that we find were not properly preserved for appeal. Winter argues that Wal-Mart should have been estopped from filing a motion for dismissal because Wal-Mart was not diligent in filing its Form B-31 statement, detailing its payment of benefits to Winter. Winter also argues that Wal-Mart made certain misrepresentations to her upon which she relied. Since this is the first time Winter has made these arguments, they have not been properly preserved for appeal, and we will not address these issues. Alexander v. Daniel, 904 So.2d 172, 183(¶ 26) (Miss.2005).

¶ 15. THE JUDGMENT OF THE UNION COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEES.

KING, C.J., MYERS, P.J, IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . The appeal filed by Winter was assigned the cause number 2007-WC-01717-COA. An appeal was also filed by Wal-Mart and American Home Assurance Company, which was consolidated with Winter’s appeal. Wal-Mart and American Home Assurance Company’s appeal was inadvertently filed twice and assigned two cause numbers: 2008-WC-00391-COA and 2008-WC-00392-COA. Therefore, the style of this opinion reflects two causes of action filed by Wal-Mart; however, the two causes of action filed by Wal-Mart are identical. We will refer to Winter as the appellant and Wal-Mart as the appellee on appeal since Winter was the first to file her appeal.