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

text:
    Leslie Danielle DEWITT a/k/a Leslie D. Dewitt, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01704-COA
    Court of Appeals of Mississippi.
    May 8, 2018 Rehearing Denied September 4, 2018
    ATTORNEY FOR APPELLANT: JIM L. DAVIS, III
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, Jackson
    BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Leslie Danielle Dewitt appeals her conviction for two counts of touching a child for lustful purposes pursuant to Mississippi Code Annotated section 97-5-23(2) (Rev. 1998). Dewitt argues that a new trial is warranted because of the service of an unqualified juror who withheld disqualifying information, the trial court incorrectly denied a motion to prevent the admission of a recorded conversation involving the appellant, and the trial court committed reversible error in denying the introduction of a lesser-included jury instruction. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Leslie Danielle Dewitt, a female and once junior high and high school girls' basketball coach at Hancock High School, was convicted of two counts of touching a child for lustful purposes. The child, Bethany Foster, also female, was a tenth-grade basketball player under Dewitt at Hancock.

¶ 3. Foster testified at trial that her and Dewitt's player-coach relationship, which began in junior high school and through basketball, developed over time during her high school years. Foster would routinely practice with Dewitt after school-hours and babysit her son at Dewitt's home. The two maintained a close relationship for years prior to trial.

¶ 4. Foster also testified that while in high school in December 2009, she was sixteen years old and spending the night at Dewitt's house with a teammate. Foster stated that after everyone else had gone to sleep, Dewitt committed sexual acts against her. Foster testified that Dewitt kissed Foster, placed her hand on Foster's vagina, and placed her fingers in Foster's vagina. Foster testified that the physical aspect of their relationship was repeated on more than twenty occasions from December 2009 until July 2010. It became routine. Foster also testified that during this time Dewitt placed her mouth on Foster's vagina and also used a sex toy on Foster's genitals. Dewitt denies that any sexual conduct ever occurred.

¶ 5. Foster did not tell anyone about the nature of the relationship. She testified that it was too embarrassing and that she was concerned what her friends and family would think given their religious background and the impact it could have on Dewitt. However, despite their best efforts, some semblance of a relationship between the two became evident to others, and after repeated failed attempts by Hancock school administrators to get Dewitt to distance herself from Foster, Dewitt was forced to resign. Foster and Dewitt remained in contact.

¶ 6. In January 2013, Foster returned home from college, struggling with depression and anxiety that she testified stemmed from her past relationship with Dewitt and the subsequent confusion it caused her. While home, Foster told her mother, Monique, about the sexual relationship between her and Dewitt for the first time.

¶ 7. Monique then took Foster to the police station to report the misconduct. Monique testified at trial that she later decided to confront Dewitt about the accusations and record the conversation on her cell phone. After letting the police know of her intentions, the police asked if she would be willing to use their recording device, instead of her cell phone, to record the conversation. Monique agreed. The police provided Monique with a recording device and followed her to meet Dewitt and observe the encounter from a distance. The police did not offer Monique any advice for techniques to use during the conversation or assistance in carrying out the act.

¶ 8. Monique confronted Dewitt in the parking lot of Pearl River High School where Dewitt had just finished coaching a basketball game. While Monique did not physically force Dewitt into her car, Monique threatened to "make a scene" if Dewitt did not agree to get in the car and speak with her. Dewitt and Monique got into Dewitt's car and Monique recorded the conversation unbeknownst to Dewitt. In the recording, Dewitt made allegedly incriminating statements without instruction regarding Miranda rights. After the encounter, Monique returned the recording and recording device to the police. Later that night, Dewitt went to the police station on her own accord where she was informed of her Miranda rights before giving a statement. She was arrested about two months later in March 2013. Prior to trial, Dewitt filed a motion in limine to exclude the recording. The motion was denied, and the recording was played for the jury over Dewitt's objection.

¶ 9. After jury deliberations began, but before the jury reached a verdict, the circuit clerk discovered that one of the jurors, Simmons, was not a registered voter of Hancock County and had only lived in the county for two months prior to trial. As the trial judge stated, Simmons appeared in court because he was responding to a jury summons that was issued to his address in Hancock County. Although it is believed that the summons was meant for a prior occupant of the same address, Simmons received the summons, appeared in court, and went through all of the juror qualification process.

¶ 10. Before trial, the trial judge, the State, and the defense counsel all agreed that to the best of their knowledge the trial court properly impaneled and swore in the jury, a complete and proper voir dire was conducted, and all of the jurors were accepted in accordance with the competent juror qualifications under Mississippi Code Annotated section 13-5-1 (Rev. 2012). The trial judge states in the record that he "specifically ask[ed] the question, you must be either a qualified elector or resident freeholder of the [county] for more than one year." However, there is no evidence of this actual line of questioning of the jurors by the trial judge or the jurors' responses to the questions in the record.

¶ 11. While the information regarding how long Simmons had lived in the county was available to each side's counsel prior to trial on the juror's information card, his voter registration status was not. Dewitt alleges that Simmons withheld information that would have allowed her to strike him for cause. Again, according to the record, the parties at trial seem to agree that the jury was properly questioned during voir dire, but there is no record of the actual questioning or responses from the jurors. Upon hearing of the clerk's discovery, and before a verdict was reached, Dewitt quickly moved for a mistrial based on Mississippi Code Annotated section 13-5-1. However, according to the trial judge, Simmons did not intentionally do anything wrong. He responded to a summons issued to his address, was subjected to voir dire by both sides, and was accepted by each. Accordingly, the motion was denied.

¶ 12. The jury rendered the verdict of guilty of Counts III and IV for touching of a child for lustful purposes. Dewitt was subsequently sentenced to the maximums of fifteen years for Count III and fifteen years for Count IV to run consecutively for a total of thirty years in the custody of the Mississippi Department of Corrections. The sentence is set to be served day-to-day without the possibility of pardon, parole, early release, or suspension. Dewitt was further ordered to register as a sex offender.

ANALYSIS

I. Whether the trial court correctly denied Dewitt's Motion for New Trial despite the service of an unqualified juror.

¶ 13. Dewitt argues that Juror 3-26, Simmons, was an incompetent juror because he was not a registered voter in Hancock County at the time of trial and had only lived in Hancock County for two months prior to trial. She alleges that Simmons withheld this information which would have supported a strike for cause. Because Simmons served on the jury despite being unqualified, Dewitt argues for a mistrial and that she should be granted a new trial.

¶ 14. The "standard of review for the denial of a motion for mistrial is abuse of discretion." Spann v. State , 771 So.2d 883, 889 (¶ 9) (Miss. 2000). "[A] motion for a new trial challenges the weight of the evidence." Jones v. State , 154 So.3d 872, 880 (¶ 24) (Miss. 2014). "When reviewing a challenge to the weight of the evidence, the Court will disturb a jury verdict only when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Id. (quotation marks omitted). The decision to declare a mistrial is in the sound discretion of the court. Lockridge v. State , 768 So.2d 331, 337-38 (¶ 12) (Miss. Ct. App. 2000). This decision should not be disturbed unless it was an abuse of discretion. Bass v. State , 597 So.2d 182, 191 (Miss. 1992).

¶ 15. In order to be qualified as a competent juror, residency in the county for at least one year or voter registration in the county is required. Mississippi Code Annotated section 13-5-1 (Rev. 2012) provides, in pertinent part:

Every citizen not under the age of twenty-one years, who is either a qualified elector, or a resident freeholder of the county for more than one year, is able to read and write, and has not been convicted of an infamous crime, or the unlawful sale of intoxicating liquors within a period of five years and who is not a common gambler or habitual drunkard, is a competent juror. No person who is or has been within twelve months the overseer of a public road or road contractor shall, however, be competent to serve as a grand juror. The lack of any such qualifications on the part of one or more jurors shall not, however, vitiate any indictment or verdict.

(Emphasis added). "This Court is required to reverse the trial court when this Court clearly is of the opinion that a juror was not competent." Langston v. State , 791 So.2d 273, 281 (¶ 17) (Miss. Ct. App. 2001).

¶ 16. As confirmed by both sides during oral argument, although there is no record of the actual section 13-5-1 questioning of the jurors by the trial judge, both the State's and the Appellant's counsel stipulated the questions were asked of the jury. When the trial court asked whether Simmons was to be accepted, both sides agreed, and neither side objected during the empaneling of the jury. Dewitt's attorney did not object to Simmons's participation until after the jury began deliberating.

¶ 17. Typically, "[i]f a party fails to object to a juror before the jury is empaneled, that party waives any right to complain of the jury's composition at a later time." Langston , 791 So.2d at 281 (¶ 17). "However, there are certain circumstances where a juror may be excused after he has already been accepted." Id.

¶ 18. A juror may be dismissed after the jury has been empaneled in two instances: (1) where the juror is unable to perform his duties; and (2) where the juror is disqualified. McNeal v. State , 617 So.2d 999, 1003 (Miss. 1993) (citing Miss. Code Ann. § 13-5-1 ). A juror may be disqualified if he withholds or misrepresents information upon being asked a "clearly worded" question during voir dire. McNeal , 617 So.2d at 1003 ; see Miss. Code Ann. § 13-5-67 (Rev. 2012). This is what Dewitt alleges happened. "If information is withheld by a juror and the evidence shows that a fuller and more complete response or any response at all would have provided a legitimate basis for challenge, the trial court must grant a new trial and if it does not, this Court must reverse on appeal." Langston , 791 So.2d at 281 (¶ 18) (citing Myers v. State , 565 So.2d 554, 558 (Miss. 1990) ).

¶ 19. Upon examination of a juror's competency, "[i]t is the duty of the trial court to assess whether the question asked of the juror was '(1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited.' " Langston , 791 So.2d at 281 (¶ 19) (quoting Odom v. State , 355 So.2d 1381, 1383 (Miss. 1978) ). "If the court finds that these inquiries point unequivocally to the fault of the juror, it then must ask whether there was prejudice to the defendant resulting from the juror's failure to respond accurately to a voir dire question." Id. The defense, in this case Dewitt, bears the burden of showing she was "prejudiced by the jury selected or that the jury was biased or less than impartial." George v. State , 812 So.2d 1103, 1108 (¶ 22) (Miss. Ct. App. 2001). Since "there is no firm rule guiding the courts in every given situation of voir dire examination, these matters must be determined on a case by case basis." Langston , 791 So.2d at 281 (¶ 19).

¶ 20. We cannot today know how the trial judge would have conducted his voir dire if Dewitt had objected or raised these issues in a timely manner before the trial judge. According to accounts in the record by the trial judge, the State's attorney, and Dewitt's attorney, the trial judge clearly asked the necessary and relevant questions to the jury to satisfy Mississippi Code Annotated section 13-5-1 -even though the record is void of the actual questioning and juror responses.

¶ 21. Dewitt argues on appeal that Simmons's service on the jury prejudiced her because he had not been a resident of Hancock County long enough to appreciate its close-knit community feel. However, Dewitt's attorney's actions stand in direct contradiction to her argument. Dewitt's attorney made no objection as to Simmons's admission despite his juror card plainly stating he had only lived in Hancock County for two months. Additionally, two other jurors did not even provide an answer to the term-of-residency question on their jury cards, one of whom served on the jury with Simmons. Dewitt's attorney also failed to ask any further questions regarding Simmons's voter registration status. When Dewitt and her attorney decided between challenging Simmons or another juror with their last challenge, Dewitt's attorney chose the other juror and made no request for additional challenges, despite knowing that Simmons had only lived in the County for two months.

¶ 22. Dewitt states that Simmons actively withheld information from the court which would have supported a strike for cause, but there is no indication in the record of Simmons giving misleading or incomplete answers. There is no evidence of fault on Simmons's part. By all accounts he served as a fair and impartial juror. "[A] party who fails to object to the jury's composition before it is empaneled waives any right to complain thereafter." Myers , 565 So.2d at 557. Additionally, "any flaws in the judge's examination of the panel are mitigated by the leeway allowed defense counsel in his phase of the voir dire." Bell v. State , 725 So.2d 836, 844 (¶ 10) (Miss. 1998). Dewitt's attorney did not take advantage of the leeway allowed to him during the voir dire, so we cannot determine that any missing information on Simmons's part was "unequivocally ... the fault of the juror," nor do we find there was adequate prejudice against the defendant. Langston , 791 So.2d at 281 (¶ 19).

¶ 23. Looking at the similar case of Bell :

[h]aving said this, we have also examined the record of the voir dire by the trial court as to possible plain error, and although we cannot say that the manner of examining the jury panel was desirable, its defects do not rise to the level of fundamental constitutional error. We do note, however, that trial judges should exercise caution in performing their profound duty to select fair, impartial and competent juries. Words coming from the judge bear special weight with those citizens who are asked to try the facts of cases, both civil and criminal.

Bell , 725 So.2d at 844 (¶ 11). While we acknowledge that Simmons's apparent status as a new resident who had not registered to vote in the county is in conflict with Mississippi Code Annotated section 13-5-1, "we agree with the case law and find that this was not such an error as to require the verdict and sentence in this case to be overturned." Wright v. State , 805 So.2d 577, 580 (¶ 9) (Miss. Ct. App. 2001). We do not find that "there was prejudice to the defendant resulting from the juror's failure to respond accurately to a voir dire question" so as to constitute a new trial. Langston , 791 So.2d at 281 (¶ 19). Further, as it is stated in section 13-5-1, "[t]he lack of any such qualifications on the part of one or more jurors shall not ... vitiate any indictment or verdict."

¶ 24. Based on our review of the record, we cannot say this was an abuse of discretion. We find no merit to this issue.

II. Whether the trial court abused its discretion in denying Dewitt's motion to exclude the recorded conversation between Dewitt and the victim's mother.

¶ 25. Dewitt next argues that the admission of the recorded conversation between Monique and Dewitt violated Dewitt's constitutional rights. Dewitt alleges that Monique was acting as an agent of law enforcement interrogating Dewitt and her recorded statements, which were introduced at trial, were elicited without a Miranda warning. Dewitt further alleges that her Fourth and Sixth Amendment rights were violated.

¶ 26. "A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling." Hughes v. State , 735 So. 2d 238, 270 (¶ 134) (Miss. 1999). "The applicable standard for determining whether a confession is voluntary is whether, taking into consideration the 'totality of the circumstances,' the statement is the product of the accused's 'free and rational' choice." U.S. v. Rogers , 906 F.2d 189, 190 (5th Cir. 1990).

¶ 27. "The purpose of Miranda warnings is to protect the individual's constitutional rights against illegal government intrusion." DeLoach v. State , 722 So.2d 512, 518 (¶ 26) (Miss. 1998). "Once proceedings against a defendant reach the accusatory stage, a right to counsel attaches." Page v. State , 495 So.2d 436, 439 (Miss. 1986). The accusatory stage begins at the commencement of prosecution "by binding over or recognizing the offender to compel his appearance to answer the offense." Miss. Code Ann. § 99-1-7 (Rev. 2000). Alternatively put:

[t]he accusatory stage is reached when the law enforcement arm of the state first charges the accused with a crime. A charge may be formally made when a warrant is issued for the arrest of the accused. It may be made less formally when, acting without a warrant, law enforcement authorities place an accused under arrest.

Tolbert v. State , 511 So.2d 1368, 1375 n.5 (Miss. 1987) (citation and internal quotation marks omitted). "Once the right to counsel has attached, interrogation may not take place absent a knowing and intelligent and voluntary waiver by the accused of his right to counsel." Page , 495 So.2d at 440. In other words, police "may not, directly or clandestinely, undertake interrogation in the absence of the accused's attorney without the accused's consent." Id. (citing Cannaday v. State , 455 So.2d 713, 722 (Miss. 1984) ).

¶ 28. " Miranda applies to custodial interrogations or statements, and it does not apply to statements when [the offender] is not in custody and has the liberty to come and go as [he] pleases ...." Fisackerly v. State , 880 So.2d 368, 370 (¶ 11) (Miss. Ct. App. 2004). Still, even when a private party is conducting an independent private investigation, and not as an agent of the government, "statements must be freely and voluntarily given in order to be admissible." Hopkins v. State , 799 So.2d 874, 878 (¶ 7) (Miss. 2001) (citation omitted).

¶ 29. Dewitt's case is similar to Fisackerly where conversations were secretly recorded between two private parties, and the court determined that Fisackerly had not been deprived of his freedom of action in any significant way. Like Fisackerly, Dewitt voluntarily spoke with an independently motivated private party and gave statements which were recorded. Although confronted unexpectedly by Monique, Dewitt's statements were freely and voluntarily given. Dewitt's Fourth Amendment protections did not apply here.

¶ 30. "Although the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government." Skinner v. Ry. Labor Executives' Ass'n , 489 U.S. 602, 614, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). In Roberts v. Louisiana Downs, Inc ., 742 F.2d 221, 224 (5th Cir. 1984), the Court stated, "for a nominally private individual's conduct to meet the state action requirement, there must be a sufficiently close connection between the state and the challenged conduct for the actor to be treated as an agent of the state, or the conduct to be attributed to the state." This determination "is made by sifting facts and weighing circumstances case by case to determine if there is a sufficient nexus between the state and the particular aspect of the private individual's conduct which is complained of." Id. (internal quotation marks omitted). Accordingly, for private conduct to turn into state action, there must be a clear nexus between the state or law enforcement and a private investigation.

¶ 31. In order to determine if a private party has reached the level of an agent of the government, the court should look to the extent of the government's participation in the activities of the private party. Id. However, "[t]he presence of law enforcement officers who do not take an active role in encouraging or assisting an otherwise private search has been held insufficient to implicate fourth amendment interests, especially where the private party has had a legitimate independent motivation for conducting the search." United States v. Walther , 652 F.2d 788, 792 (9th Cir. 1981).

¶ 32. As previously discussed, Dewitt's Fourth Amendment right had not attached. Likewise, her Sixth Amendment rights did not attach either. Dewitt argues that her situation is similar to that of the defendant in Page . However, in Page the appellant had already been indicted and was out on bond when the communications were solicited from him. Page's right to assistance of counsel had therefore already attached and had not been waived. Conversely, Dewitt's right to assistance of counsel had not yet attached. She had not had any contact with the police at this point and was not yet owed Miranda rights or the right to the assistance of counsel because she had not reached the accusatory stage.

¶ 33. Monique had a legitimate independent motivation all along to conduct this search and speak with Dewitt about what Foster told her had happened. Even though Monique was asked by the police to use their equipment to record the conversation and police were present, the police did "not take an active role in encouraging or assisting" Monique's search. Accordingly, we do not find that she was acting as an agent of the police. Dewitt's alleged Constitutional rights were not violated. Additionally, there is nothing in the record to indicate Dewitt's statement was obtained through any means of coercion or force. Therefore, we find that this issue is without merit.

III. Whether it was error to refuse Dewitt's proposed lesser-included-offense instructions.

¶ 34. Dewitt argues that she was entitled to jury instructions D-12 amended 2 and D-13 amended 2 for sex between a teacher and pupil pursuant to Mississippi Code Annotated section 97-29-3 (Rev. 1994), as a lesser-included offense of touching a child for lustful purposes pursuant to Mississippi Code Annotated 97-5-23(2).

¶ 35. "This Court reviews the grant or denial of jury instructions for an abuse of discretion." Windless v. State , 185 So.3d 956, 960 (¶ 8) (Miss. 2015). The Mississippi Supreme Court has consistently held that jury instructions are within the sound discretion of the trial court.

Goodin v. State , 787 So.2d 639, 657 (¶ 60) (Miss. 2001). A trial court in Mississippi can refuse a jury instruction if the instruction inaccurately states the law, is covered elsewhere in the instructions, "or is without foundation in the evidence." Taylor v. State , 137 So.3d 283, 286 (¶ 9) (Miss. 2014) (citing Heidel v. State , 587 So.2d 835, 842 (Miss. 1991) ).

¶ 36. The supreme court has repeatedly held that "[w]hen jury instructions are challenged on appeal, we do not review them in isolation; rather, 'we read them as a whole to determine if the jury was properly instructed.' " Rubenstein v. State , 941 So.2d 735, 787 (¶ 239) (Miss. 2006) (quoting Milano v. State , 790 So.2d 179, 184 (¶ 14) (Miss. 2001) ). When read together, "if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found .... There is no error if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law." Id. at 785 (¶ 224) (internal citations and quotation marks omitted).

¶ 37. A lesser-included-offense instruction should be refused only when the court finds that no reasonable jury could find the defendant guilty of the lesser-included offense, and, conversely, "not guilty of at least one essential element of the principal charge." Harper v. State , 478 So.2d 1017, 1021 (Miss. 1985). In other words, "[a] lesser-included[-]offense instruction is authorized if a rational or reasonable jury could find the defendant not guilty of the principal offense in the indictment, but guilty of the lesser-included offense." White v. State , 842 So.2d 565, 575 (¶ 30) (Miss. 2003) (citing Pleasant v. State , 701 So.2d 799, 804 (¶ 19) (Miss. 1997) (overruled on other grounds) ). Therefore, "lesser included offense instructions may be denied only where the evidence would justify a conviction on the principal charge only." Harper , 478 So.2d at 1021.

¶ 38. Dewitt was convicted of touching a child for lustful purposes pursuant to Mississippi Code Annotated section 97-5-23(2), which provides:

Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child younger than himself or herself and under the age of eighteen (18) years who is not such person's spouse, with or without the child's consent, when the person occupies a position of trust or authority over the child shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court. A person in a position of trust or authority over a child includes without limitation a child's teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.

Dewitt proposed that a lesser-included-offense instruction of sex between teacher and pupil also be provided to the jury, which states:

If any teacher and any pupil under eighteen (18) years of age of such teacher, not being married to each other, shall have sexual intercourse , each with the other, they shall, for every such offense, be fined in any sum, not more than five hundred dollars ($500.00) each, and the teacher may be imprisoned not less than three (3) months nor more than six (6) months.

Miss. Code Ann. § 97-29-3 (emphasis added).

¶ 39. The test for determining whether one offense is a lesser-included offense of another is: [w]hether applied for the benefit of the state or defense, in order to authorize such instruction the more serious offense must include all the elements of the lesser offense, that is, it is impossible to commit the greater offense without at the same time committing the lesser-included offense. Also, there must be some evidence to support the lesser-included offense.

Friley v. State , 879 So.2d 1031, 1034 (¶ 13) (Miss. 2004) (quoting Sanders v. State , 479 So.2d 1097, 1108 (Miss. 1985) ).

¶ 40. Dewitt argues that the elements of sex between teacher and pupil coincide with the elements of touching a child for lustful purposes and that there is evidence to support such an instruction. Dewitt argues that because these two elements are present, the jury should have been instructed accordingly. We disagree on both accounts.

¶ 41. Sex between a teacher and pupil is not a lesser-included offense of touching a child for lustful purposes. It is possible to be guilty of touching a child for lustful purposes without also being guilty of sex between a teacher and pupil. Touching a child for lustful purposes does not include all of the elements of sex between teacher and pupil. A lesser-included offense is necessarily included in the greater offense if the elements of the greater offense include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. Harper , 478 So.2d at 1021. That is not the case here.

¶ 42. Sex between a teacher and pupil contains elements pertaining to sexual intercourse which requires penetration, and touching a child for lustful purposes does not. In fact, the jury in this case actually acquitted Dewitt of two counts of sexual battery, which does require sexual penetration. In looking at the rendered verdict, the jury determined that Dewitt, as Foster's high school coach, was in a "position of trust or authority" over Foster and that Dewitt was guilty of "handl[ing], touch[ing] or rub[bing]" Foster "for the purpose of gratifying [her] lust ...." Miss. Code Ann. § 97-29-3. Since the lesser offense is not necessarily included in the greater offense, sex between a teacher and pupil is not a lesser-included offense of touching a child for lustful purposes. Harper , 478 So.2d at 1021.

¶ 43. Even if sex between a teacher and pupil was considered a lesser-included offense of touching a child for lustful purposes, there is not adequate evidence in the record to support it as a lesser-included-offense instruction. Throughout the trial, Dewitt testified and denied allegations of any sexual conduct, much less penetration, ever taking place. In fact, Dewitt testified that Foster was fabricating the entire story and that none of the allegations against her were true. While "[a] defendant is entitled to have jury instructions given which present [her] theory of the case ...," Dewitt's argument was that Foster fabricated all of the allegations. The crime of sex between a teacher and pupil does not support Dewitt's theory of the case and is not supported by Dewitt's own arguments.

¶ 44. The elements of the separate offenses are distinctly different, and no facts were presented in this case to persuade this Court that the trial court erred.

Therefore, we find no error in the refusal of Dewitt's proposed jury instructions.

¶ 45. AFFIRMED.

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

      For privacy purposes, we substitute fictitious names for minor children.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: FAIR, J., FOR THE COURT:

license: Public Domain

text:
    David William KENT, Jr. a/k/a D. William Kent, Jr. a/k/a Davis William Kent, Jr., Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CA-00432-COA
    Court of Appeals of Mississippi.
    May 15, 2018 Rehearing Denied September 11, 2018
    ATTORNEY FOR APPELLANT: BRENT M. BRUMLEY, JACKSON, MS.
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, JACKSON, MS
    BEFORE GRIFFIS, P.J., FAIR AND GREENLEE, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. David Kent filed a motion for post-conviction relief alleging that the circuit court lacked a factual basis to accept his guilty plea. The circuit court dismissed Kent's PCR motion as time-barred, and he appeals. We affirm the dismissal as Kent has failed to present an adequate record to support his contentions.

STANDARD OF REVIEW

¶ 2. The circuit court may summarily dismiss a PCR motion without an evidentiary hearing "[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief." Miss. Code Ann. § 99-39-11(2) (Rev. 2015). To succeed on appeal, the movant must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State , 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999).

¶ 3. Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Id.

DISCUSSION

¶ 4. At the outset, we note that the Mississippi Uniform Post Conviction Collateral Relief Act requires that motions for post-conviction relief contain the "identity of the proceedings in which the petitioner was convicted." See Walker v. State , 863 So.2d 1, 10 (¶ 13) (Miss. 2003). Kent's PCR motion fails to do this adequately; it stated only that, in April 2012, he was indicted "on two counts of violating [ Mississippi Code Annotated section] 97-5-31(b) by photographing or filming persons under the age of eighteen, and one of count of violating [the same section] by filming an adult female." Section 97-5-31(b) does not define an offense; rather, it defines the words "sexually explicit conduct" in the context of the statute prohibiting child pornography. The petition further states that, in March 2013, Kent entered a petition to plead guilty "to Count 1" followed by a guilty plea on March 13, 2014. Kent's PCR motion refers to an indictment and briefly quotes from a plea petition, but neither reference reveals a cause number, nor were the documents filed with the PCR motion.

¶ 5. After Kent's PCR motion was filed, the circuit court identified it with Hinds County cause number 12-0-403. The circuit court found Kent's PCR petition time-barred because the conviction order in that cause number had been filed on March 7, 2013, more than three years prior to the filing of the PCR motion. See Miss. Code Ann. § 99-39-5(2) (Rev. 2015). The conviction order in that case was attached to the circuit court's order dismissing the PCR motion. It named Kent as the defendant and identified his offense as "FILM W/O CONSENT 97-29-63." The sentence was fifteen years (six were suspended), which appears to exceed the maximum permitted under section 97-29-63 for a single count, either five years or ten years depending on when the offense was committed and the age of the victim. A ten-year sentence became possible when the statute was amended, effective July 1, 2012, to raise the maximum punishment to ten years if the victim was under the age of sixteen. See 2012 Miss. Laws ch. 557, § 2. Nonetheless, Kent has not challenged the legality of his sentence, and the record is insufficient for this Court to find it illegal with certainty.

¶ 6. Kent repeats his ambiguous identification of the underlying offense and the inconsistent date of the conviction in his brief on appeal, but he does not acknowledge or discuss the inconsistencies with the sentencing order attached by the circuit court to its judgment; Kent appears to accept that the circuit court addressed the correct underlying conviction.

¶ 7. Although the dates of the judgments and the identity of the offenses do not match, we acknowledge that the sentencing order attached by the circuit court to the judgment is probably the one Kent intended to challenge in his PCR motion. Still, the record is wholly inadequate to support Kent's claims-it does not contain the indictment, the plea petition, or a transcript of the plea colloquy. As to the transcript, Kent alleges that the court reporter could not produce one, but that claim is not substantiated in the record. And even if Kent could not obtain a transcript, remedies were available through Mississippi Rule of Appellate Procedure 10, but they were not utilized here. See Brooks v. State , 208 So.3d 14, 17 (¶¶ 4-6) (Miss. Ct. App. 2017). The failure to utilize Rule 10(c)"results in a procedural bar to raising the issue of an incomplete transcript on appeal." Keller v. State , 138 So.3d 817, 837 (¶ 20) (Miss. 2014). As to the remainder of the record, Kent simply failed to designate it for appeal; his designation includes only the record from the PCR civil action.

¶ 8. While this Court often orders supplementation of the record in post-conviction cases, on our own motion, we decline to do so in this instance for two reasons. First, Kent-unlike most post-conviction petitioners-is represented by counsel. And, second, his PCR motion failed to identify the underlying proceedings with adequate certainty.

¶ 9. The circuit court's judgment is presumed to be correct. See Birkhead v. State , 57 So.3d 1223, 1231 (¶ 28) (Miss. 2011). Kent was required to demonstrate error on appeal, and he was required to provide an adequate record to support his claims. See Lyons v. State , 881 So.2d 373, 376 (¶ 8) (Miss. Ct. App. 2004) ; see also M.R.A.P. 28(a)(6). He has not done so, and so we affirm the dismissal of his PCR motion.

¶10. AFFIRMED.

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


author: BARNES, J., FOR THE COURT:

text:
    ENSCOR, LLC, Jeffrey C. Smith and Cynthia H. Smith, Individually, Appellants v. Ed MORGAN, in His Official Capacity as the Commissioner of Revenue of the Mississippi Department of Revenue, Appellee
    NO. 2016-CA-01743-COA
    Court of Appeals of Mississippi.
    May 15, 2018 Rehearing Denied September 4, 2018
    ATTORNEYS FOR APPELLANTS: JAMES GARY MCGEE JR., WILLIAM HARRISON WEBB
    ATTORNEYS FOR APPELLEE: JOHN STEWART STRINGER, LARA E. GILL
    BEFORE IRVING, P.J., BARNES AND WILSON, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Enscor LLC (Enscor), a Tennessee-based general construction company licensed in Mississippi, was audited by the Mississippi Department of Revenue (DOR) for the tax period beginning April 1, 2011, and ending April 30, 2014. A notice of the audit was sent to Enscor via certified mail. Following the audit, the DOR issued Enscor a withholding tax assessment of $51,099.

¶ 2. On October 23, 2014, Enscor, through its attorney and authorized representative, James McGee Jr., appealed the assessment to the DOR's Board of Review pursuant to Mississippi Code Annotated section 27-77-5(1) (Rev. 2010), which provides in part:

Any taxpayer aggrieved by an assessment of tax by the agency ... and who wishes to contest the action of the agency shall, within sixty (60) days from the date of the action, file an appeal in writing with the [B]oard of [R]eview requesting a hearing and correction of the contested action specifying in detail the relief requested and any other information that might be required by regulation.

McGee instructed the DOR to forward all further communications to his law office in Jackson, Mississippi. The Board of Review scheduled a hearing on the appeal for March 19, 2015, and mailed a letter to McGee's office on November 12, 2014, as notification of the hearing. The letter stated that the failure to appear at the hearing would constitute a withdrawal of the appeal and, once withdrawn, the assessment could not be appealed. On March 11, 2015, the DOR sent an email to Sandra Crosby, an employee with McGee's firm, as a courtesy reminder of the hearing. However, no Enscor representative attended the hearing; so the Board of Review involuntarily withdrew Enscor's appeal, making the assessment subject to collection by the DOR.

¶ 3. Upon learning of the involuntary withdrawal of its appeal, Enscor insisted it did not receive notification of the hearing date and filed a timely petition contesting the withdrawal with the Mississippi Board of Tax Appeals (BTA). The BTA scheduled a hearing on February 17, 2016, specifically to address the issue of the withdrawal of Enscor's appeal. At the hearing, the DOR argued that once the appeal had been involuntarily withdrawn, the matter was final and "no longer subject to review by the Review Board, [BTA], or any court," citing section 27-77-5(8) (Rev. 2010), which read:

Once an appeal is withdrawn, whether voluntary or involuntary, the action from which the appeal was taken, whether a tax assessment, a denial of [a] refund claim, a denial of [a] waiver of tax penalty, or an order of the [B]oard of [R]eview, shall become final and not subject to further review by the [B ]oard of [R ]eview, the [BTA ] or a court . The agency shall then proceed in accordance with law based on such final action.

(Emphasis added). The DOR further asserted that Enscor had failed to rebut the presumption that notice of the hearing "was properly delivered and received." Enscor was represented at the hearing by another attorney with McGee's law firm. Requesting that the BTA grant Enscor's request to reconsider the audit results, Enscor's counsel explained:

In summary, we do not contest the factual and legal conclusions reached by the [DOR] on [its] motion to dismiss. It seems pretty straightforward in this case that generally not appearing before the Board of Review would result in an involuntary withdrawal of the appeal.
As I'm sure [you] are all aware, we represent hundreds of clients before the [DOR] in disputes all the time. It was never our intention to withdraw the appeal or to somehow negligently fail to appear.
That being said, we would like to submit to the Board that it was an unfortunate sequence of events that occurred in our offices which led us to not put the Board of Review date on our calendar.

¶ 4. On March 2, 2016, the BTA affirmed the Board of Review's decision to involuntarily withdraw Enscor's administrative appeal, concluding:

IT IS, THEREFORE, HEREBY ORDERED AND ADJUDGED by the [BTA] that the [DOR's m]otion to [d]ismiss is sustained and the taxpayers' appeal is DISMISSED with prejudice and that the tax assessment from which the appeal was taken has become final and is not subject to further review by the Board of Review, the [BTA ] or a court and that the [DOR] may proceed in accordance with law based upon such final action.

(Emphasis added). The DOR instituted collections on the withholding tax assessment by enrolling a lien against Enscor.

¶ 5. Seeking relief, Enscor, along with Jeffrey and Cynthia Smith (the principals of Enscor), filed a complaint with the Hinds County Chancery Court on June 22, 2016, against Ed Morgan, in his official capacity as Commissioner of the DOR. The action requested that the chancery court assume jurisdiction under Mississippi Code Annotated section 11-13-11 (Rev. 2004), which provides the chancery court with "jurisdiction of suits by one or more taxpayers in any county, city, town[,] or village, to restrain the collection of taxes levied or attempted to be levied without authority of law." Determining whether jurisdiction is proper under section 11-13-11 requires the application of a three-part guideline by the chancery court:

(1) whether the aggrieved taxpayer alleges an inadequate remedy at law in his complaint; (2) whether there is not an adequate remedy at law available to the aggrieved taxpayer; and (3) whether the taxpayer's allegations of fact, if proven to be true, warrant a conclusion that the taxes are being collected or levied without authority of law.

Bankston v. Miss. Dep't of Revenue , 95 So.3d 1275, 1277-78 (¶ 7) (Miss. Ct. App. 2012). Asserting that it had "satisfied the criteria" for the court to exercise jurisdiction and that the DOR assessed the withholding tax without authority of law, Enscor sought to vacate the BTA's findings and enjoin the DOR from the collection of said taxes.

¶ 6. The DOR filed a motion to dismiss, or in the alternative, a motion for summary judgment. It claimed the chancery court lacked subject-matter jurisdiction because Enscor did not sufficiently plead all the requisite elements for jurisdiction under section 11-13-11, noting Enscor had an adequate remedy under law to appeal the BTA's order under section 27-77-7(1), which provides for judicial review of a BTA order by a taxpayer. Alternatively, the DOR argued that should the court determine it had subject-matter jurisdiction, the DOR's notification of the March 19, 2015 hearing satisfied due process, and the Smiths failed to state a claim upon which relief could be granted since the DOR levied the tax assessment against Enscor, not the Smiths as individual plaintiffs. In response, Enscor submitted an affidavit from Crosby, McGee's employee, which stated that after a thorough search, "there exist[ed] no records of McGee Tax Firm ever receiving a [n]otice from the Board of Review advising us or [Enscor] that a hearing had been scheduled before the Board of Review in this matter."

¶ 7. After a review of the pleadings and a hearing, the chancery court granted the DOR's motion to dismiss with prejudice on November 17, 2016. The chancery court found that Enscor had failed to perfect subject-matter jurisdiction because it did not exhaust its administrative remedies as required by law under Mississippi Code Annotated section 27-77-5(8) (Rev. 2015), which provided a recently added exception to the finality of review for "the issue of whether a taxpayer's actions or inaction constituted a failure on the part of the taxpayer to prosecute his appeal." Thus, the chancery court determined that it was "precluded from considering whether the facts support the conclusion that the taxes were collected without authority of law."

¶ 8. Aggrieved, Enscor appeals. While we find that the chancery court erred in holding that Enscor had an adequate remedy at law available, we conclude that neither the factual allegations in the pleadings nor the summary-judgment materials support the conclusion that the DOR acted without authority of law. Accordingly, we affirm on alternative grounds.

ANALYSIS

¶ 9. Enscor argues that the chancery court erred in granting the DOR's motion to dismiss because the court had subject-matter jurisdiction over Enscor's claim under section 11-13-11. "A dismissal for lack of subject[-]matter jurisdiction is reviewed de novo." Schmidt v. Catholic Diocese of Biloxi , 18 So.3d 814, 821 (¶ 13) (Miss. 2009) (citing Robinson v. TCI/US West Commc'ns , 117 F.3d 900, 904 (5th Cir. 1997) ). "When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim." Jones v. Billy , 798 So.2d 1238, 1239 (¶ 2) (Miss. 2001) (citing Lang v. Bay St. Louis/Waveland Sch. Dist. , 764 So.2d 1234, 1236 (¶ 7) (Miss. 1999) ).

¶ 10. As mentioned, a chancery court has subject-matter jurisdiction over a taxpayer's claims to restrain the collection of taxes where the following criteria are met: (1) the aggrieved taxpayer's complaint alleges "an inadequate remedy at law"; (2) no adequate remedy at law is available to the taxpayer; and (3) the factual allegations made by the taxpayer, if proven, "warrant a conclusion" that the challenged taxes "are being collected or levied without authority of law." Bankston , 95 So.3d at 1277-78 (¶ 7). Enscor claims that it "acted properly in filing its [p]etition under [ section] 11-13-11" and "satisfied the three-pronged analysis which sets forth the threshold criteria for the [c]hancery [c]ourt to exercise jurisdiction over this case."

¶ 11. The chancellor determined that Enscor had an adequate remedy at law, but Enscor contends it had no available remedy to challenge the involuntary withdrawal of its appeal. The basis for the chancellor's finding was the 2015 revision to section 27-77-5(8), which provided in part:

Once an appeal is withdrawn, whether voluntary or involuntary, the action from which the appeal was taken, whether a tax assessment, a denial of refund claim, a denial of waiver of tax penalty, or the denial of a claim to tax credits or incentives, or an order of the Board of Review, shall become final and not subject to further review by the Board of Review, the [BTA] or a court, other than as to the issue of whether a taxpayer's actions or inactions constituted a failure on the part of the taxpayer to prosecute his appeal . The agency shall then proceed in accordance with law based on such final action.

(Emphasis added). The parties do not dispute that the 2015 revision was not applicable in this case because the taxes were assessed in 2014. Rather, the present case is governed by the 2010 version of section 27-77-5(8), which stated that "[o]nce an appeal is withdrawn, whether voluntary or involuntary, the action from which the appeal was taken ... shall become final and not subject to further review by the [B ]oard of [R ]eview, the [BTA ] or a court ." (Emphasis added). See also Virk v. Miss. Dep't. of Revenue , 133 So.3d 809, 813-15 (¶¶ 8-11) (Miss. 2014) (upholding a chancery court's finding that the appellant's failure to attend a Board of Review hearing "made his assessment final" and determining there was no statutory authority under section 27-77-5(8) to hear his appeal in the BTA or the chancery court).

¶ 12. However, the DOR argues that because Mississippi Code Annotated section 27-77-7(1) (Rev. 2010) provided for judicial review of a BTA ruling, Enscor was afforded an adequate remedy at law under that statute to challenge the appeal's involuntary withdrawal. To support its argument, the DOR cites Bankston , in which this Court upheld a chancery court's finding that it lacked subject-matter jurisdiction because the claimant had an adequate remedy at law under section 27-77-7(1). Bankston , 95 So.3d at 1278 (¶ 9). But unlike the present case, the appellant's ability to appeal in Bankston originated from Mississippi Code Annotated section 27-77-5(4) (Rev. 2005), which allowed for a taxpayer to appeal "the issue of whether a written appeal from the order of the Board was timely filed with the [State Tax] Commission." Id. at 1278 (¶ 8) (quoting section 27-77-5(4) ).

¶ 13. Therefore, we find Bankston distinguishable. Here, the 2010 version of section 27-77-5(8) precluded Enscor from appealing the assessment and deprived the BTA from jurisdiction over said appeal. Enscor properly alleged an inadequate remedy at law, and no adequate remedy at law was available to review the involuntary withdrawal of Enscor's appeal. Accordingly, the chancery court's finding that Enscor had an adequate remedy at law under section 27-77-5(8) was erroneous.

¶ 14. The chancery court did not address Enscor's claim that the DOR acted without authority of law in levying the tax assessment. Enscor does not dispute that it was notified of the tax assessment levied against it; nor does it contend that the DOR lacked authority under the law to levy the taxes. Rather, Enscor argues that the DOR acted without authority of law by failing to notify Enscor of the Board of Review hearing and to provide it an opportunity to defend itself, which it asserts was a violation of its due-process rights. Upon review, we find that the allegations contained in the pleadings, "if proven," fail to support Enscor's claim.

¶ 15. "Due process does not require that a property owner receive actual notice before the government may take his property." Jones v. Flowers , 547 U.S. 220, 226, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006). Rather, "due process requires the government to provide 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' " Id. (quoting Mullane v. Cent. Hanover Bank & Trust Co. , 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ).

This notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met the constitutional requirements are satisfied.

Mullane , 339 U.S. at 314-15, 70 S.Ct. 652 (citations omitted).

¶ 16. In its complaint, Enscor asserted that neither it nor its representative "received a timely notice from the [DOR] that a hearing date had been scheduled for [the] appeal." Enscor acknowledged the notification letter was "allegedly sent " to McGee and admitted that a copy of the letter was "subsequently provided to counsel" after the hearing, affirming the existence of the letter. However, Enscor argued that this notice "was not provided in time to make anyone aware" of the hearing. Enscor further asserted that the DOR was "unable to provide any documentation that this [n]otice was actually sent to or received by [Enscor's] representative[,]" because the "important document" was sent "merely ... via regular U.S. mail." In other words, the DOR had no certified mail receipt to demonstrate the notice was sent or received.

¶ 17. "[A] 'mere denial of receipt [of notice] is insufficient to create a triable issue of fact.' " Holt v. Miss. Emp't Sec. Comm'n , 724 So.2d 466, 470 (¶ 19) (Miss. Ct. App. 1998) (quoting Fidelity Fin. Servs. v. Stewart , 608 So.2d 1111, 1113 (Miss. 1992) ). Here, Enscor's pleadings merely deny receipt of notice. Moreover, the DOR was not required under the law to send notice by certified mail. Mississippi Code Annotated section 27-77-1(o) (Rev. 2010) provided:

"Mail," "mailed" or "mailing" means placing the document or item referred to in first-class United States mail, postage prepaid, addressed to the person to whom the document or item is to be sent at the last known address of that person. Where a person is represented in an administrative appeal before a hearing officer, the [B]oard of [R]eview or the [BTA] by a designated representative, the terms "mail," "mailed" or "mailing" when referring to sending a document or item to that person shall also mean placing the document or item referred to in first-class United States mail, postage prepaid, to the last known address of that person's designated representative. Mailing to the designated representative of a taxpayer ... shall constitute mailing and notice to the taxpayer [. ]

(Emphasis added). "There is a presumption that mail deposited, postage prepaid and properly addressed is timely delivered to the person addressed." Thames v. Smith Ins. Agency Inc. , 710 So.2d 1213, 1216 (¶ 16) (Miss. 1998) (citing Hagner v. United States , 285 U.S. 427, 430, 52 S.Ct. 417, 76 L.Ed. 861 (1932) ).

¶ 18. With regard to the courtesy email reminder sent a week before the hearing, it is evident from the pleadings that Enscor's failure to receive this later notice of the hearing was due not to any failure on the part of the DOR, but to the law firm's computer system designating the email as "spam" and placing it in a separate "spam" folder. The pleadings stated:

[O]n March 11, 2015, Ms. Sandrel Nichols, an administrative assistant employed by the [DOR], allegedly sent an email to [McGee] advising that the hearing was scheduled for the date listed above. However, [McGee] never received this correspondence and was unable to reply accordingly. It was only some time later that the email was discovered, in the representative's spam folder .... Having never received any notice that a hearing had been scheduled on their behalf by the [DOR's] Board of Review, neither the Plaintiffs no[r] their representative appeared or presented any arguments or evidence to the Defendants in advance of the unilaterally scheduled hearing.

(Emphasis added). We find it somewhat disingenuous that Enscor would assert the email was "allegedly sent," but admit that the email was later discovered in its "spam" folder.

¶ 19. We find that the pleadings show that the DOR provided notice "reasonably calculated" to notify Enscor of the hearing and afford it an opportunity to dispute the tax assessment. Accordingly, while Enscor satisfied the first two criteria under section 11-13-11, we find the pleadings failed to demonstrate that the DOR acted without authority of law, and we affirm the chancery court's dismissal for lack of subject-matter jurisdiction, albeit on alternative grounds. See Askew v. Askew , 699 So.2d 515, 519 n.3 (Miss. 1997) ("[A] trial court judgment may be affirmed on grounds other than those relied upon by the trial court.").

¶ 20. We further find that Enscor failed to produce sufficient evidence to survive the DOR's motion for summary judgment. Attached to the DOR's motion was a copy of the November 21, 2014 notification letter and two affidavits from DOR employees, Sandrel Nichols and Carlton McGrone, attesting the notice letter had been sent through the U.S. mail system and addressed to McGee's law firm. Enscor responded with an affidavit by McGee's employee, Crosby, in which she merely averred that she did "not recall, nor have any evidence of receipt" of the notice. "[T]o survive summary judgment, 'the party opposing the motion may not rest upon the mere allegations or denials of his pleadings, but his response must set forth specific facts showing there is a genuine issue for trial.' " Huynh v. Phillips , 95 So.3d 1259, 1262 (¶ 6) (Miss. 2012). As previously stated, due process merely requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections." Jones , 547 U.S. at 226, 126 S.Ct. 1708. We find Enscor failed to demonstrate the existence of a genuine issue of material fact that its due-process rights were violated.

¶ 21. AFFIRMED.

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

      This notice was in accordance with Mississippi Code Annotated section 27-77-5(2) (Rev. 2010), which states that the "[f]ailure of the taxpayer or his designated representative to attend a hearing or to submit his position in writing or by electronic transmission by the date specified by the [B]oard of [R]eview or by the hearing date, if no date was specified, shall constitute a withdrawal of the appeal."

      As of the date of the BTA order, the DOR had made no attempt to collect any of the tax assessment owed directly from Enscor's principals, the Smiths. We will refer to the appellants collectively as "Enscor" unless otherwise specified.

      Section 27-77-7(1) stated in part: "The findings and order of the [BTA] entered under Section 27-77-5 shall be final unless the agency or the taxpayer shall, within sixty (60) days from the date of the order, file a petition in the chancery court appealing the order."

      A 2015 amendment to section 27-77-5(8) provided this additional language allowing for an appeal of this distinct issue.

      Section 19 of House Bill 799, which provided the 2015 amendments to section 27-77-5, stated that the provisions of the law in effect at the time of an assessment were to remain in effect for the purposes of an administrative appeal or judicial review:
      Nothing in Sections 15, 16 or 17 of this act shall affect or defeat any assessment, refund claim, request for waiver of a tax penalty or claim for tax credits or incentives or the administrative appeal or judicial appeal thereof where the initial date of said assessment, refund claim, tag penalty, claim for tax credits or incentives is before the date on which this act becomes effective. The provisions of the laws relating to the administrative appeal or judicial review of such actions which were in effect prior to the effective date of this act are expressly continued in full force, effect and operation for the purpose of providing an administrative appeal and/or judicial review of any assessment, refund claim, request for waiver of a tag penalty or claim for tax credits or incentives where the initial date of said assessment, refund claim, tag penalty, claim for tax credits or incentives is before the date on which this act becomes effective.
      2014 Miss. Laws ch. 476, § 19.

      This is similar language to that in the revised 2015 version of 27-77-5(8) allowing an appeal for "the issue of whether a taxpayer's actions or inactions constituted a failure on the part of the taxpayer to prosecute his appeal."

      As in this case, we noted in Bankston that the applicable statute had been amended, but because "the action predated the amendment," the Court's analysis necessarily relied "on the statute as it existed before the amendment." Bankston , 95 So.3d at 1276 n.2.

      A copy of a letter dated November 12, 2014, notifying Enscor of the hearing and addressed to Enscor's designated representative, McGee, was attached to the DOR's motion to dismiss, along with affidavits of the DOR's standard operating procedures with regard to the mailing of notices. This will be more fully addressed in our discussion of the DOR's alternative summary-judgment motion.

      Also attached was the transcript of the BTA hearing, in which counsel for Enscor acknowledged that the failure to appear at the Board of Review hearing was due to an "unfortunate sequence of events that occurred in our offices which led us to not put the Board of Review date on our calendar."


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

text:
    Craig STEVENSON, Appellant v. GE HEALTHCARE and Electric Insurance Company, Appellees
    NO. 2017-WC-01016-COA
    Court of Appeals of Mississippi.
    May 29, 2018 Rehearing Denied September 11, 2018
    ATTORNEY FOR APPELLANT: JAMES (JAY) R. FOSTER II
    ATTORNEYS FOR APPELLEE: BETTY B. ARINDER, MICHELLE BARLOW MIMS
    BEFORE IRVING, P.J., BARNES AND WILSON, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Craig Stevenson appeals the judgment of the Mississippi Workers' Compensation Commission (Commission), arguing that it erred in denying his motion to reinstate his workers' compensation claim against GE Healthcare and Electric Insurance Company (GE Healthcare).

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Stevenson filed a petition to controvert on November 13, 2012, alleging that he sustained a work-related injury on October 25, 2008. GE Healthcare filed an answer on December 5, 2012, and denied that a work-related injury had occurred. GE Healthcare also denied that Stevenson was performing service growing out of or in the course of his employment at the time of the alleged injury or occupational disease. On January 8, 2015, the Commission dismissed the claim because of Stevenson's "failure to respond to a status request." The order of dismissal stated that

[t]his order will become final unless Claimant or any other party files a written request for review of this order within twenty (20) days per Miss. Code Ann. 71-3-47 (Rev. 2000). A final order of dismissal for failure to respond to a status request is the rejection of a claim sufficient to trigger the one-year statute of limitations set forth in Miss. Code Ann. Section 71-3-53 (Rev. 2000).

¶ 4. Since Stevenson did not appeal the order of dismissal within twenty days, it became final on January 28, 2015. The record reveals that he did not file his motion to reinstate his claim until August 18, 2016, well beyond one year of the order becoming final, and he did not take any other action to toll the one-year statute of limitations prescribed by section 71-3-53. The AJ and, thereafter, the full Commission denied Stevenson's motion. Stevenson appeals, claiming that he should not be penalized for his previous lawyer's inaction because he relied upon his lawyer's representation that his case was pending.

DISCUSSION

¶ 5. "The standard of review by which an appellate court resolves a workers' compensation case is that of substantial evidence; however, where the issue is one of law and not of fact, the standard of review is de novo." Shelby v. Peavey Elecs. Corp. , 724 So.2d 504, 506 (¶ 8) (Miss. Ct. App. 1998). "[T]he commission has continuing jurisdiction, within limits, to reopen a case in the doing of which it will not be reversed unless its discretion has been abused." J.R. Logging v. Halford , 765 So.2d 580, 585 (¶ 18) (Miss. Ct. App. 2000).

¶ 6. As stated, Stevenson argues that he relied upon his previous lawyer's representation that his case was pending and that he should not be penalized for his lawyer's inaction. He asserts that he was told by his attorney that his case was pending and that he was simply waiting on the AJ to issue an order; however, the AJ had already dismissed his case by way of her January 8, 2015 order. He argues that the dismissal of this case occurred through no fault of his own. Stevenson claims that his first attorney died, and his second attorney did not provide him with the correct information about the status of his case. He contends that he was entitled to rely on his attorney's representations and, therefore, his claim should have been reinstated. He cites Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership , 507 U.S. 380, 385, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), for the proposition that any neglect in this case was excusable based on his attorney's inaction.

¶ 7. We first note that Pioneer is a bankruptcy case, not a workers' compensation case. In Pioneer , the Supreme Court held:

With regard to determining whether a party's neglect of a deadline is excusable, we are in substantial agreement with the factors identified by the [Ninth Circuit] Court of Appeals. Because Congress has provided no other guideposts for determining what sorts of neglect will be considered "excusable," we conclude that the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include ... the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.

Id. at 395, 113 S.Ct. 1489.

¶ 8. GE Healthcare responds that the Commission was correct in upholding the decision of the AJ denying Stevenson's motion to reinstate his claim and that Stevenson cannot show excusable neglect in failing to timely appeal the dismissal of his claim based on the alleged misrepresentations of his attorneys. Alternatively, GE Healthcare argues that Stevenson's claim is barred by the two-year statute of limitations since the injury occurred in 2008, the claim was denied by GE Healthcare, no benefits were paid, and Stevenson did not file his petition until 2012-four years after the injury.

¶ 9. We find, as did the AJ and the full Commission, that Stevenson's lawyer failed to timely file a petition to controvert within two years of the date of Stevenson's injury; he failed to appeal the January 8, 2015 order within twenty days; and he failed to file a motion to reinstate Stevenson's claim within one year of the January 28, 2015 final order. The Mississippi Supreme Court has adopted and applies the excusable neglect standard, set forth in Pioneer , in determining whether excusable neglect exists for a party's omission in a given case. See Nunnery v. Nunnery , 195 So.3d 747, 752 (¶ 15) (Miss. 2016).

¶ 10. Stevenson failed to provide any proof to the Commission, and has failed to do so here, of his allegation that his second lawyer advised him that the AJ and Commission had not ruled on his case. Moreover, Stevenson has never provided any information regarding when he became aware that his case had been dismissed. Therefore, he has failed to demonstrate excusable neglect, notwithstanding the dereliction of his previous attorney if indeed those allegations are true. As such, this issue is without merit. We find no fault with the Commission failing to reinstate Stevenson's case.

¶ 11. AFFIRMED.

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

      "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, issue a new compensation order which may terminate, continue, reinstate , increase, or decrease such compensation, or award compensation ...." Miss. Code Ann. § 71-3-53 (Rev. 2011) (emphasis added).


text:
    Edward BARNES a/k/a Edward Barnes III, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00691-COA
    Court of Appeals of Mississippi.
    June 5, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: LISA D. COLLUMS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER
    BEFORE LEE, C.J., BARNES AND TINDELL, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. On July 13, 2015, Edward Barnes III was indicted for failure to register as a convicted sex offender, specifically that he violated Mississippi Code Annotated section 45-33-25(4)(a) (Rev. 2015), which prohibited him from residing "within three thousand (3,000) feet of ... a public or nonpublic elementary or secondary school, a child care facility, a residential child-caring agency, a children's group care home or any playground, ballpark or other recreational facility utilized by persons under the age of eighteen (18) years." Although the initial indictment alleged Barnes was a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015), the State subsequently moved to amend the indictment to reflect habitual-offender status under Mississippi Code Annotated section 99-19-83 (Rev. 2015). The motion stated that Barnes had been convicted of:

(1) armed robbery on June 28, 1995, with a sentence of five years in the custody of the Mississippi Department of Corrections (MDOC), serving at least one year and one day of the term;
(2) statutory rape on October 9, 2001, with a sentence of five years in MDOC custody, serving at least one year and one day of the term;
(3) failure to register as a convicted sex offender on September 24, 2007, with a sentence of five years in MDOC custody, serving at least one year and one day of the term; and
(4) burglary of a dwelling on May 7, 2012, with a sentence of eight years in MDOC custody, serving at least one year and one day of the term.

The Harrison County Circuit Court, First Judicial District, granted the State's motion to amend.

¶ 2. A jury trial was held on September 21, 2016. Jessica Akers, the registrar for the Harrison County Sheriff's Department, testified that "sex offenders must register all addresses that they live at between 10:00 p.m. and 6:00 a.m. for seven or more consecutive days." She noted the various requirements with which a convicted sex offender has to comply, including the proximity restriction that prohibited Barnes from residing within three thousand feet of any schools, child-care facilities, playgrounds, ballparks, or recreational facilities utilized by children under the age of eighteen. When Akers met with Barnes on September 9, 2014, for a registration visit, she went over the requirements on the registration form with Barnes. He signed the form and acknowledged the individual requirements by putting his initials by each one listed. When Akers later entered the address provided by Barnes, she noted a proximity violation-the address was four hundred (400) feet from a day care center. To verify the proximity violation, Akers searched for the location on a Google Earth map and called the day care center to make sure it was still in operation. After verification of the address, Akers sent Barnes a letter on September 26, 2014, notifying him of the violation and giving him fifteen days to relocate and register a new address. The letter stated that failure to relocate and register a new address would "result in the issuance of a felony warrant for [Barnes's] arrest." Barnes never responded to the letter.

¶ 3. Wade Bryant, an investigator with the sheriff's department, testified that on February 2, 2015, he went to the address provided by Barnes to follow up on the violation. He spoke with Barnes's mother, and she confirmed that Barnes had been staying there and showed the officer his bedroom. Officer Bryant noted some male clothing in the room, and he confirmed the address's proximity to the day care center. Officer Bryant later interviewed Barnes, who admitted that he lived at the address and knew it was within a prohibited location. Barnes explained to Officer Bryant that he had nowhere else to live. On cross-examination, both Akers and Officer Bryant acknowledged that neither had informed Barnes he could register as homeless and be in compliance with the requirements. After the circuit court denied the defense's motion for a directed verdict, the defense rested.

¶ 4. The jury found Barnes guilty of the charge, and the trial judge sentenced him as a habitual offender to life without parole in the custody of the Mississippi Department of Corrections. Barnes filed a motion for a new trial or, in the alternative, for a judgment notwithstanding the verdict, asserting that there was insufficient evidence to support the verdict and had sheriff's personnel informed him he could have registered as homeless, he would have been in compliance with the sex-offender registration laws. The trial court denied the motion, and Barnes appeals. Finding no error, we affirm.

DISCUSSION

¶ 5. As in his posttrial motion, Barnes argues that his conviction should be reversed because he was never advised that he could register as a homeless person. We presume this claim is a challenge to the sufficiency of the evidence. However, Barnes does not cite any authority in his brief to support his claim. "[I]t is the duty of the appellant to provide authority in support of an assignment of error." Byrd v. State , 179 So.3d 64, 66 (¶ 7) (Miss. Ct. App. 2015) (quoting Young v. State , 919 So.2d 1047, 1049 (¶ 5) (Miss. Ct. App. 2005) ). "Failure to cite legal authority in support of an issue is a procedural bar on appeal." Id.

¶ 6. Procedural bar notwithstanding, we find no basis for Barnes's claim. The Mississippi Supreme Court has stated that "[w]hen reviewing the sufficiency of the evidence, 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Gary v. State , 237 So.3d 140, 147 (¶ 35) (Miss. 2018) (quoting Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005), abrogated on other grounds by Little v. State , 233 So.3d 288, 292 (Miss. 2017) ). Barnes was charged with "willfully, unlawfully and feloniously" living and residing within three thousand feet of a day care center in Harrison County. Barnes stipulated that he had been previously convicted of a sex offense requiring registration. He admitted to Officer Bryant that he resided at his mother's Harrison County address and knew the house's proximity to a day care center violated the sex-offender registration requirements.

¶ 7. Barnes's reasoning was that he had nowhere else to go. But while Akers acknowledged that an offender who does not have a place to stay may register as homeless, Barnes never asked Akers what he should do in this case, and as she noted, "[t]here was nothing to stop him from asking." After Akers informed Barnes by letter that he was in violation of the proximity requirement, Barnes failed to contact the sheriff's department to explain his predicament. Instead he continued to live at his mother's home for six months without responding to the registrar about the violation or making any attempt to relocate. Further, Barnes could not register as "homeless" when he was, in fact, residing in his mother's home.

¶ 8. Accordingly, because Barnes resided at his mother's home with full knowledge that he was in direct violation of the sex-offender registration requirements, we find that the evidence was sufficient to support the verdict, and we affirm the trial court's judgment.

¶ 9. AFFIRMED.

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

      Barnes was convicted of statutory rape on October 9, 2001. The parties stipulated to this conviction at trial.


author: LEE, C.J., FOR THE COURT:

text:
    Kenneth L. OSTROWSKI Jr., Appellant v. CITY OF D'IBERVILLE, Mississippi, Appellee
    NO. 2017-CA-01117-COA
    Court of Appeals of Mississippi.
    June 5, 2018 Rehearing Denied September 25, 2018
    MICHAEL JOSEPH YENTZEN, Biloxi, ATTORNEY FOR APPELLANT.
    NANCY L. SIPLES BRUMBELOE, Gulfport, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. Kenneth Ostrowski Jr. sued the City of D'Iberville, Mississippi, under the Mississippi Tort Claims Act (MTCA) for damages he sustained in a motor-vehicle accident. The Harrison County County Court granted the City's motion for summary judgment, finding that it was immune from liability under Mississippi Code Annotated section 11-46-9(1)(q) (Rev. 2012). Ostrowski appealed to the Harrison County Circuit Court, Second Judicial District, and the circuit court affirmed the county court's decision. In this appeal, we must determine whether the circuit court erred in affirming the county court's decision. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 10, 2014, Ostrowski was driving on a city road during a heavy rain storm when he struck a displaced manhole cover, causing his car to slide and strike the curb. Ostrowski's car flipped and landed on its side on the property adjacent to the road. He stated that he was driving below the posted speed limit. Ostrowski was injured, and his car was damaged.

¶ 3. In his complaint, Ostrowski alleged that the manhole cover was displaced due to "rising water because of design and deficiencies" of the City's sewer system. In support of his argument, Ostrowski produced an affidavit from a civil engineer, Dreux Seghers. In his affidavit, Seghers stated that the manhole cover was displaced due to rain water increasing the volume of water in the sewer system and that repairs were necessary to minimize the flow of rain water or ground water into the sewer system. However, the county court determined that Seghers's affidavit was not admissible since it did not meet the criteria of Mississippi Rule of Evidence 702. On appeal to the circuit court, the circuit court found no abuse of discretion by the county court in excluding Seghers's affidavit. Ostrowski does not raise the issue of the admissibility of Seghers's affidavit in this appeal.

¶ 4. Ostrowski did not produce additional evidence that the sewer system contained design deficiencies or that the City knew or should have known that the manhole cover would be displaced by rising water. The record is silent as to whether the manhole cover had been displaced by rising water prior to Ostrowski's accident.

STANDARD OF REVIEW

¶ 5. The grant or denial of a motion for summary judgment is reviewed de novo. Karpinsky v. Am. Nat'l Ins. Co. , 109 So.3d 84, 88 (¶ 9) (Miss. 2013). We view the evidence "in the light most favorable to the party against whom the motion has been made." Id. Summary judgment is proper when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). "The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to judgment as a matter of law." Karpinsky , 109 So.3d at 88 (¶ 11). Further, if at trial, the movant would bear the burden of proof, he also bears the burden of production for summary judgment. Id. However, the nonmovant may not "rest upon the mere allegations or denials of his pleadings." M.R.C.P. 56(e). The nonmovant must respond "by affidavits or as otherwise provided in [ Rule 56 ]," and he "must set forth specific facts showing that there is a genuine issue for trial." Id. "If he does not so respond, summary judgment, if appropriate, shall be entered against him." Id.

¶ 6. We also use a de novo standard of review regarding the application of the MTCA. City of Jackson v. Harris , 44 So.3d 927, 931 (¶ 19) (Miss. 2010).

DISCUSSION

¶ 7. Section 11-46-9(1)(q) provides immunity to a governmental entity for claims "[a]rising out of an injury caused solely by the effect of weather conditions on the use of streets and highways." In his only issue on appeal, Ostrowoski argues that section 11-46-9(1)(q) was not applicable since the rain was not the sole cause of his accident; rather, the City's negligence in maintaining the sewer system caused the manhole cover to be displaced during the rain storm. As a result, Ostrowski argues that the City's negligence was the proximate cause of his injuries.

¶ 8. Few cases discuss this particular governmental immunity. In one case, a dense fog had created limited visibility on a county road. Hayes v. Greene Cty. , 932 So.2d 831, 832 (¶ 2) (Miss. Ct. App. 2005). A county-operated garbage truck had stopped in the road, and the plaintiff stopped to avoid hitting the garbage truck. Id. However, another driver, with limited visibility due to the fog, struck the plaintiff's car from behind, causing damage. Id. The plaintiff sued the county, but the trial court granted summary judgment, finding section 11-46-9(1)(q) applied. Hayes , 932 So.2d at 832 (¶ 2). We affirmed, finding that "[t]he testimony of [the plaintiff] and [the second driver] was sufficient to establish the dense fog as the cause of the collision, and thereby afford to [the county] the protection of [ section] 11-46-9(1)(q)." Hayes , 932 So.2d at 832 (¶ 8).

¶ 9. In Schepens v. City of Long Beach , 924 So.2d 620, 623 (¶ 12) (Miss. Ct. App. 2006), the property owners claimed damages due to potholes in the dirt road leading to their property. The road deteriorated after rainstorms, resulting in potholes. Id. The property owners sued the City of Long Beach for failure to improve and maintain the road. Id. at 622 (¶ 5). This Court found several provisions of the MTCA provided immunity to the City, including section 11-46-9(1)(q). Schepens , 924 So.2d at 623-24 (¶¶ 11-13). Although there was testimony that the road needed to be graded after rainstorms to prevent potholes, we found that the property owners' claim "arose from an injury which resulted solely from the effect rain had on" the road in question. Id. at 623 (¶ 12).

¶ 10. In Willing v. Estate of Benz , 958 So.2d 1240, 1253 (¶ 36) (Miss. Ct. App. 2007), this Court found the governmental entity could not be liable for an accident caused by a patch of ice on the road. We further discussed our holding in Schepens , stating:

We did not hold in Schepens that the city did not have a duty to maintain the roads, only that the city was immune under the circumstances for any alleged failure to perform that duty because the accident at issue was caused by potholes which were in turn caused by the effects of weather on the dirt road. [ Schepens , 924 So.2d at 623 (¶ 12).] Similarly, we do not hold in the case sub judice that the City of Greenwood did not have a duty to warn of the patch of ice on the highway, we hold that the city is immune from any alleged breach of that duty because the ice was caused solely by the "effect of weather on the use of streets and highways."

Willing , 958 So.2d at 1254 (¶ 38) (citations omitted).

¶ 11. The most recent case concerned an accident on a road where water had pooled after a rainstorm. Lee v. Miss. Dep't of Transp. , 37 So.3d 73, 75 (¶ 2) (Miss. Ct. App. 2009), overruled by Little v. Miss. Dep't of Transp. , 129 So.3d 132, 138 (¶ 11) (Miss. 2013). The trial court granted the Mississippi Department of Transportation's (MDOT) motion for summary judgment, finding several provisions of the MTCA provided immunity to MDOT. Lee , 37 So.3d at 81 (¶¶ 22-23). We identified several events contributing to the accident, including MDOT's notice of the ruts in the road, MDOT's responsibility for road maintenance, the pooling of the water caused by the ruts in the road, and the speed of the driver that caused the accident. Id. at 76, 79 (¶¶ 6, 15). In regard to the application of section 11-46-9(1)(q), we held that the weather was the sole cause of the accident-"the rutting of the [road] may have heightened the risk of hydroplaning, but nonetheless, it was an open and obvious condition caused solely by the effect of weather." Id. at 80 (¶ 20). We further held that roadway maintenance was a discretionary function; thus, MDOT was entitled to immunity under section 11-46-9(1)(d). Lee , 37 So.3d at 77-78 (¶¶ 8-9). However, Lee was reversed by the Mississippi Supreme Court in Little v. Mississippi Department of Transportation , 129 So.3d 132, 138 (¶ 11) (Miss. 2013). The court in Little clarified the standard for determining whether discretionary function immunity applied and concluded that the function of roadway maintenance was ministerial since it was mandated by statute. Id.

¶ 12. Here, both Ostrowski and the City agreed that the manhole cover was displaced by rising water. The burden then shifted to Ostrowski to respond "by affidavits or as otherwise provided in [ Rule 56 ]," and to "set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e). Although Ostrowski claimed that the cover was displaced due to either a faulty design or deficiencies in the sewer system, he failed to create a genuine issue of material fact "by affidavits or as otherwise provided" that the manhole cover was not displaced solely by the effect of the rain. We find summary judgment was properly granted in favor of the City.

¶ 13. AFFIRMED.

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

      Miss. Code Ann. §§ 11-46-1 to -23 (Rev. 2012 & Supp. 2017).