author: WILSON, J., FOR THE COURT:

text:
    UNITED AIRLINES, INC., Improperly Named as United Airlines Corporation, Appellant v. Martin H. MCCUBBINS, Appellee
    NO. 2017-CA-00154-COA
    Court of Appeals of Mississippi.
    April 17, 2018 Rehearing Denied August 28, 2018
    ATTORNEY FOR APPELLANT: JOHN THOMAS ROUSE, JACKSON
    ATTORNEY FOR APPELLEE: WAYNE E. FERRELL JR., JACKSON
    BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Martin McCubbins bought a round trip ticket from Jackson to Panama City, Panama on United Airlines (United). McCubbins alleges that on February 6, 2013, before he departed Jackson and again during a layover in Houston, United employees examined his passport and ticket and assured him that everything was in order. Nonetheless, when McCubbins arrived in Panama, he was detained and informed that he would not be allowed to enter the country because his passport's expiration date was less than 90 days from the date of his travel. McCubbins was forced to spend an unpleasant night in a Panamanian holding pen before he was allowed to return to the United States the next morning.

¶ 2. After returning home, McCubbins contacted customer service representatives at United, but United told him that he was responsible for verifying the requirements for international travel and entry into a foreign country. United did give McCubbins a coupon for ten percent off his next ticket to fly the friendly skies. Dissatisfied with blame and a coupon, McCubbins filed suit against United in Hinds County Circuit Court.

¶ 3. McCubbins served a summons and the complaint on United's registered agent for service of process in Mississippi, CT Corporation (CT). Unfortunately, the complaint named the defendant as "United Airlines Corporation," an Illinois corporation "with a principal place of business located at 1200 East Algonquin Road, Elk Grove Township, IL." This information was out of date or just incorrect. In point of fact, United is "United Airlines, Inc.," a Delaware corporation with its principal place of business at 233 South Wacker Drive in Chicago. Because the summons and complaint misnamed United, CT did not forward the documents to United, United did not answer, and McCubbins ultimately obtained a default judgment against "United Airlines Corporation" for $70,000.

¶ 4. United first learned of the judgment when McCubbins's attorney mailed a letter demanding payment to United's CEO at United's headquarters on South Wacker Drive in Chicago. United subsequently moved to set aside the default judgment, arguing that the judgment (1) was void for lack of proper service of process or, in the alternative, (2) should be set aside under the three-part "balancing test" applicable to a motion to set aside a default judgment under Mississippi Rule of Civil Procedure 60(b). See Tucker v. Williams , 198 So.3d 299, 309 (¶ 23) (Miss. 2016). The circuit court denied United's motion as "not well taken."

¶ 5. On appeal, United makes the same two arguments as in the circuit court. We hold that service of process on United's registered agent was sufficient. However, we agree with United that the default judgment must be set aside under the three-part balancing test. Therefore, we reverse and remand for further proceedings consistent with this opinion. Additional facts are discussed below as necessary.

ANALYSIS

I. SERVICE OF PROCESS

¶ 6. United's first argument on appeal is that service of process was improper and ineffective because the summons and complaint named "United Airlines Corporation," not United Airlines, Inc., and misidentified United's state of incorporation and address. "In the absence of proper service of process, the court lacks jurisdiction, so any default judgment that it enters is void." S & M Trucking LLC v. Rogers Oil Co. of Columbia , 195 So.3d 217, 221 (¶ 16) (Miss. Ct. App. 2016). "If a default judgment is void, the trial court has no discretion and must set the judgment aside." McCain v. Dauzat , 791 So.2d 839, 842 (¶ 7) (Miss. 2001). "Sufficiency of service of process is a jurisdictional issue, which is reviewed de novo." BB Buggies Inc. v. Leon , 150 So.3d 90, 95 (¶ 6) (Miss. 2014).

¶ 7. McCubbins filed his complaint alleging negligence and breach of contract in circuit court on January 16, 2015. As noted above, the complaint misidentified United as "United Airlines Corporation," an Illinois corporation with a principal place of business in the Chicago suburb of Elk Grove Township. In fact, United is "United Airlines, Inc.," a Delaware corporation with its principal place of business in downtown Chicago.

¶ 8. McCubbins did, however, serve a summons and the complaint on United's registered agent for service of process in Mississippi, CT. The summons and complaint were served personally on Matthew Thiebodeaux, an employee of CT, on February 12, 2015, by Melissa Rand, an employee of McCubbins's attorney, Wayne Ferrell. Rand and Thiebodeaux knew one another by name because she regularly served process on CT.

¶ 9. In addition, Exhibit A attached to the complaint served on CT is the eTicket itinerary and receipt issued by United to McCubbins. Notably, the ticket was sent to McCubbins from "United Airlines, Inc."

¶ 10. United failed to answer the complaint, so McCubbins applied for and obtained an entry of default. McCubbins then filed a motion for a determination of damages and entry of final judgment. On November 25, 2015, the circuit court entered judgment in favor of McCubbins and against "United Airlines Corporation" for $70,000, including actual damages of $50,000 and punitive damages of $20,000. On January 8, 2016, Ferrell mailed United's CEO a letter-at United's correct, downtown Chicago address-demanding payment.

¶ 11. We pause our discussion of the case's procedural history here to discuss other evidence related to McCubbins's service of process on United's registered agent, CT. An affidavit from a CT employee states that CT's records show that CT sent Ferrell a letter by regular mail on February 13, 2015-i.e., the day after McCubbins served CT. The letter advised as follows: "United Airlines Corporation was not listed on our records or on the records of the State of MS. CT was unable to forward." An affidavit from an employee in United's legal department confirms that United did not receive notice of the lawsuit, from CT or otherwise, until Ferrell's January 2016 letter to United's CEO.

¶ 12. The record copy of the February 13, 2015 letter from CT to Ferrell is not signed; however, CT states that such letters are sent out automatically and are not signed. Ferrell denied under oath that he ever received the letter. In addition, the letter purports to show that CT mistakenly sent a copy of the letter to the Hinds County Chancery Court; however, the chancery clerk provided an affidavit stating that the court has no record of receiving such a letter. Nor is there any evidence that the circuit court ever received such a letter.

¶ 13. In opposition to United's motion to set aside the default judgment, McCubbins also submitted copies of CT's policies and procedures for handling "name discrepancies" in documents served on CT. McCubbins obtained these documents from CT by subpoena. These documents suggest that if CT had followed its own policies and procedures, it would have identified United as the likely defendant and forwarded the complaint and the summons to United.

¶ 14. In the circuit court, United also submitted a number of its filings with the Mississippi Secretary of State, which show its correct corporate name and state of incorporation and the current address of its principal place of business. On appeal, United argues that "[t]his Court may take judicial notice of [such] records." We agree. We also note that annual reports that United filed with the Secretary of State as recently as 2008 showed that 1200 East Algonquin Road in Elk Grove Township was United's principal place of business. United apparently moved its headquarters to downtown Chicago around that time. Thus, the address referenced in McCubbins's complaint was out of date, but it was not pulled out of thin air.

¶ 15. Our Supreme Court has addressed the concept of a "misnomer" in several prior opinions. In Campbell & Campbell v. Pickens Bank , 134 Miss. 559, 565, 99 So. 378, 378-79 (1924), a writ of garnishment and summons directed to the "Bank of Pickens" were served on the cashier for the "Pickens Bank." The "Bank of Pickens" had been defunct for several years. Id. at 565, 99 So. at 380. The "Pickens Bank" was the intended garnishee, but it was misnamed in the writ and summons. Id. After a default judgment was entered against the Pickens Bank, the bank moved to set aside the judgment, arguing that it was not properly served with process. Id. at 565-66, 99 So. at 379. The cashier denied that he was served, but after hearing testimony, the chancellor found as fact that the cashier was served. Id. at 567, 99 So. at 379. Even so, the Pickens Bank argued that service was ineffective because it was not the entity named in the writ and summons. Id. at 566, 99 So. at 379. On appeal, our Supreme Court disagreed. Id. at 568, 99 So. at 380. The Court held that service was proper and that one summoned by a wrong name has a duty "to appear and object to the misnomer"; and if he fails to do so, the judgment is not void merely on account of the misnomer. Id.

¶ 16. The Supreme Court later distinguished Pickens Bank in Delta Cotton Oil Co. v. Planters' Oil Mill , 142 Miss. 591, 107 So. 764 (1926). In Delta Cotton Oil , the summons was served on a man who served as an agent for two entities with similar names, and the summons failed to correctly and precisely name either entity. Id. at 596-97, 107 So. at 764. Moreover, on the particular underlying facts of that case, the judgment could have been "applied to one as readily as to the other." Id. at 601, 107 So. at 767. The Supreme Court held that in that situation there was "such uncertainty as [to] make the rule of misnomer inapplicable." Id. The Court reaffirmed Pickens Bank 's holding and "the doctrine of misnomer" as "a wholesome doctrine." Id. But the Court held that the doctrine "must be limited to the cases where the identity of the persons sued and against whom judgment is rendered is not doubtful." Id. Accordingly, in Delta Cotton , the Court held that, on the facts of that case, the judgment was void. Id.

¶ 17. In a more recent case, our Supreme Court discussed another "set of circumstances" in which the "doctrine of misnomer" does not apply. D.P. Holmes Trucking LLC v. Butler , 94 So.3d 248, 252 (¶¶ 10-11) (Miss. 2012). In D.P. Holmes Trucking , the plaintiff "did not simply misname the defendant" but rather "sued a [party] he believed to be responsible" when, in fact, "he should have sued a different party." Id. at (¶ 11). The Court held the plaintiff was trying to substitute one real party for another real party rather than merely correct a misnomer. Id.

¶ 18. A recent decision of the Georgia Court of Appeals is also helpful and persuasive. In Mathis v. BellSouth Telecommunications Inc. , 301 Ga.App. 881, 690 S.E.2d 210 (2010), the plaintiff served Corporation Service Co. (CSC) with a summons directed to "AT & T Telecommunications." Id. at 212. The intended subject of the complaint, BellSouth d/b/a AT & T of Georgia (BellSouth), appeared and argued that service of process was improper and ineffective because "there was no such entity as AT & T Telecommunications." Id. However, the Georgia Court of Appeals held that service of process was sufficient and effective because the plaintiff properly served BellSouth's registered agent (CSC), and as BellSouth's registered agent, "CSC was obligated to recognize the trade names of its clients and also to recognize some misstatements of its clients' names and to accept service, on behalf of its clients, of lawsuits filed under such misnomers ." Id. at 214 (emphasis added; quotation marks omitted).

¶ 19. Based on our Supreme Court's decision in Pickens Bank and the persuasive reasoning of the Georgia Court of Appeals in Mathis , we hold that service of process in this case was sufficient to give the circuit court jurisdiction over United. We recognize that there are some distinctions between this case and Pickens Bank and Mathis . However, those differences do not change the outcome. This case differs from Pickens Bank in that process was served on the defendant's registered agent, rather than on an employee of the defendant at its principal place of business, as in Pickens Bank . However, the registered agent's basic purpose, especially in the case of an out-of-state corporation doing business in this State, is to stand in the shoes of the corporation for purposes of accepting service of process. See Miss. Code Ann. § 79-35-13(a) (Rev. 2013). For this reason, CT has an obligation "to recognize some misstatements of its clients' names and to accept service, on behalf of its clients, of lawsuits filed under such misnomers." Mathis , 690 S.E.2d at 214.

¶ 20. A commercial registered agent's obligation to know its clients is not limitless, but it applies in this case, when (1) the misnomer was limited to the use of "Corporation" rather than "Inc.," (2) the complaint specifically identified the former address of United's principal place of business, (3) there is nothing to suggest that the complaint or summons identified or even suggested that the defendant was some other entity that actually exists, and, perhaps most important, (4) the complaint and Exhibit A to the complaint, McCubbins's United Airlines ticket and receipt, should have dispelled any confusion as to the true identity of the defendant. Under these circumstances, we conclude that service of process was proper and sufficient; therefore, the circuit court had jurisdiction, and judgment is not "void."

II. THREE-PART BALANCING TEST

¶ 21. United also argues that, even if service of process was effective, the default judgment should have been set aside under Mississippi Rule of Civil Procedure 60(b) and precedent of the Mississippi Supreme Court and this Court. For the reasons that follow, we agree.

¶ 22. A circuit court may set aside a clerk's entry of default "for good cause shown." M.R.C.P. 55(c). However, once "a default judgment has been entered, a party must seek relief under Rule 60(b)." Tucker , 198 So.3d at 309 (¶ 22) (emphasis added). "An application for vacation of a default judgment is addressed to the sound discretion of the trial court." Id. at (¶ 24) (quoting Guar. Nat'l Ins. v. Pittman , 501 So.2d 377, 388 (Miss. 1987) ). Therefore, we review a "trial court's grant or denial of a motion to set aside ... a default judgment for abuse of discretion. But if the trial court's decision was based on an error of law, then we will reverse." Id.

¶ 23. When ruling on a Rule 60(b) motion to set aside a default judgment, "the trial court must determine" and consider three factors: "(1) the nature and legitimacy of the defendant's reasons for his default, i.e., whether the defendant has good cause for default, (2) whether the defendant in fact has a colorable defense to the merits of the claim, and (3) the nature and extent of prejudice which may be suffered by the plaintiff if the default judgment is set aside." Id. at (¶ 23) (emphasis added) (quoting BB Buggies , 150 So.3d at 101 (¶ 23) ). "Indeed, the trial court must employ the three-part balancing test when deciding whether to set aside a default judgment, and this Court must strike the same balance when determining whether the trial court abused its discretion in making that decision." Wesley Health Sys. v. Estate of Love , 200 So.3d 440, 446 (¶ 24) (Miss. 2016) (quotation marks omitted).

¶ 24. "[The Supreme] Court has held that trial courts should not be grudging about setting aside a default judgment when a proper showing has been made." Tucker , 198 So.3d at 309 (¶ 25). "Because the law does not favor default judgments, where there is a reasonable doubt as to whether or not a default judgment should be vacated, doubt should be resolved in favor of opening the judgment and hearing the case on its merits." Id. (quotation marks omitted). "And, due to the importance of affording litigants a trial on the merits, any error made by a trial judge should be in the direction of setting aside a default judgment and proceeding with trial." Id. (quotation marks omitted). Under the three-part balancing test, the default judgment in this case must be set aside so that the case may be heard on the merits.

1. GOOD CAUSE

¶ 25. We will assume for purposes of this appeal that United did not have "good cause" for its default. The "failure to file an answer" due to "an unintentional mistake" is not "good cause." BB Buggies , 150 So.3d at 101-02 (¶ 24). It is true that United failed to answer because its registered agent, CT, failed to forward the summons and complaint. It is also true that CT's failure to forward the complaint is attributable to McCubbins's failure to correctly identify United. Arguably, this provides "cause" for United's failure. However, as discussed above, as United's registered agent for service of process, CT is United for purposes of service of process, so mistakes or failures by CT may be imputed to United. In this case, it is unnecessary to make any conclusive determination as to this factor because "lack of good cause alone will not prevent the Court from setting aside a default judgment if the other two factors weigh in favor of setting it aside." Id. at 102 (¶ 24).

2. COLORABLE DEFENSE

¶ 26. The Supreme Court has "held unequivocally that the second factor, the presence of a colorable defense, outweighs the other two, and [the Court has] encouraged trial courts to vacate a default judgment where the defendant has shown that he has a meritorious defense." Id. at (¶ 25) (quotation marks omitted). "A colorable defense is one that reasonably may be asserted, given the facts of the case and the current law." Tucker , 198 So.3d at 312 (¶ 35). "A defense need not be compelling, be proven to trial standards, or be supported by sworn evidence in order to qualify as a 'colorable defense.' " Id. It is only necessary that the defense "be a reasonable one." Id. Indeed, the Supreme Court has held that "a defense of questionable strength may be colorable." Id. (quotation marks omitted).

¶ 27. In this case, United primarily relies on its Contract of Carriage as a colorable defense. McCubbins's eTicket stated: "Notice of Incorporated Terms-Transportation is subject to the terms and conditions of United's Contract of Carriage, which are incorporated herein by reference.... The full text of United's Contract of Carriage is available at united.com or you may request a copy at any United ticket counter." Rule 19(A) of United's Contract for Carriage provides in relevant part:

Each Passenger desiring transportation across any international boundary is responsible for obtaining and presenting all necessary travel documents, which shall be in good condition, and for complying with the laws of each country flown from, through or into which he/she desires transportation. UA reserves the right to seek reimbursement from the Passenger for any loss, damage, or expense suffered or incurred by UA by reason of such Passenger's failure to do so. UA is not liable for any assistance or information provided by any employee or agent of UA to any Passenger relating to such documents or compliance with such laws, or for the consequences to any Passenger resulting from his/her failure to obtain and present such documents, which shall be in good condition, or to comply with such laws.

In addition, Rule 28(G) of United's Contract for Carriage provides:

UA shall not be liable for any damage arising out of UA's compliance with any laws, government regulations, orders, rules, requirements or security directives or as a result of a Passenger's failure to comply with such laws, government regulations, orders, rules, requirements or security directives or as a result of Passenger's reliance on advice provided by UA regarding such laws, regulations, orders, rules, requirements or security directives. See also Rule 19.

United's Contract of Carriage was filed with the United States Department of Transportation as a "Tariff" at all times relevant to this case.

¶ 28. Panzer v. Continental Airlines Inc. , 398 F.Supp.2d 529 (S.D. Miss. 2005), addressed the effect of essentially identical provisions of another airline's contract for carriage and an essentially identical claim. In Panzer , the plaintiffs purchased tickets for themselves and their two minor children to fly to Costa Rica on Continental Airlines. Id. at 530. They "allege[d] that on more than one occasion [Continental] employees ... informed them that a birth certificate was sufficient documentation for the two children to enter Costa Rica." Id. However, when the plaintiffs landed at the airport in Costa Rica, they were informed that passports were required for the children, they were not allowed to enter the country, and they "were forced to remain in the airport until the next day when they were transported back to the United States." Id. The plaintiffs subsequently filed suit against Continental. Id.

¶ 29. The Panzer court held that the plaintiffs' claims were barred by rules 19 and 28 of Continental's contract for carriage-which were substantively identical to the same rules in United's Contract for Carriage. See id. at 531-32. The court held that, as a matter of federal law, "[t]ariffs that are validly filed with the DOT are considered binding law between an airline and its passengers." Id. at 531 (collecting cases). The court also held that the contract of carriage "clearly dictate[d] that passengers, not the airline, [were] responsible for procuring proper travel documents" and that the airline was "not liable for any misinformation provided by ... its employees regarding the requisite travel documentation." Id. at 532. In addition, the court rejected the plaintiffs' argument "that the terms of the Contract were never 'effectively' communicated to them." The court held that "[a]n airline passenger is deemed to have constructive knowledge of a tariff that has been properly filed with the DOT." Panzer , 398 F.Supp.2d at 532. Moreover, as in this case, the plaintiffs' eTicket alerted them to additional terms and conditions and incorporated by reference the contract for carriage. The district court observed that "[p]ursuant to federal regulation, 'a ticket or other written instrument that embodies the contract of carriage may incorporate contract terms by reference ....' " Id. (quoting 14 C.F.R. § 253.4 ).

¶ 30. There is no material difference between Panzer and this case. Moreover, McCubbins fails to address Panzer or the relevant provisions of the Contract of Carriage. At oral argument, McCubbins's counsel stated that this Court is not "bound" by Panzer . It is true that we are not bound by Panzer or similar decisions of other federal district courts. See supra n.3. However, at this stage, United is not required to show that its defense is dispositive or unassailable. United is only required to show that it has a "colorable" defense. As stated above, "even a defense of questionable strength may be colorable" if it is a "reasonable" defense. Tucker , 198 So.3d at 312 (¶ 35) ; see also Olive v. Malouf , 94 So.3d 1254, 1257 (¶ 13) (Miss. Ct. App. 2012) (stating that a defendant is not required to show that it is "likely to prevail" in order to establish a "colorable defense" (quoting Leach v. Shelter Ins. , 909 So.2d 1283, 1287 (¶ 13) (Miss. Ct. App. 2005) ). United's Contract of Carriage, related federal law, and the on-all-fours opinion in Panzer provide at least a "reasonable" or "colorable" defense to McCubbins's claims.

3. PREJUDICE

¶ 31. "[T]he extent of prejudice to the opposing party is a relevant consideration when ruling on a motion to set aside an entry of default [or a default judgment]." Tucker , 198 So.3d at 316 (¶ 46). "However, the plaintiff's need to litigate the claims in the event a default judgment is set aside is not grounds for a finding of prejudice." Id. (citing BB Buggies , 150 So.3d at 104 (¶ 31) ). McCubbins fails to identify any other type of prejudice that he would experience if the default judgment is set aside. Accordingly, the lack of prejudice also weighs in favor of setting aside the default judgment.

¶ 32. "Two of the three factors-colorable defense and prejudice-weigh in favor of [United] and, thus, in favor of setting aside the default judgment. Therefore, we hold that the trial court abused its discretion in failing to set aside the default judgment. The default judgment against [United] is set aside, and the case is remanded for proceedings consistent with the instant opinion." BB Buggies , 150 So.3d at 105 (¶ 37).

CONCLUSION

¶ 33. Service of process on United's registered agent was proper and sufficient; therefore, the judgment was not void, and the circuit court properly refused to dismiss the case due to improper service of process. However, for the reasons discussed above, the default judgment must be set aside so that the case may be heard and decided on its merits. Therefore, the judgment of the circuit court is reversed and the case is remanded for further proceedings consistent with this opinion.

¶ 34. REVERSED AND REMANDED.

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

      Two weeks after United received the letter from McCubbins's attorney, United removed the case to federal district court. United argued that federal question jurisdiction existed because McCubbins's claims were "completely preempted" by the Airline Deregulation Act and/or the Montreal Convention, an international multilateral treaty to which the United States is a party. The same day that United removed the case to federal court, United also filed a motion to set aside the default judgment. Three days later, McCubbins filed a second lawsuit against United in Hinds County Circuit Court ("McCubbins II "). The complaint in McCubbins II was essentially identical to McCubbins's prior lawsuit ("McCubbins I ") except that it correctly named and identified "United Airlines, Inc." as the defendant. United removed McCubbins II to federal court based on the same "complete preemption" arguments. McCubbins I and McCubbins II were assigned to different district judges; however, both judges ultimately rejected United's complete preemption arguments. McCubbins v. United Airlines Inc. , 227 F.Supp.3d 654, 657-58 (S.D. Miss. 2016) (Jordan, J.); McCubbins v. United Airlines Inc. , 244 F.Supp.3d 557, 567 (S.D. Miss. 2017) (Wingate, J.). McCubbins I was remanded to state court and is the subject of this appeal. We are told that McCubbins II has not yet been formally remanded to state court. The removals, remands, and McCubbins II are, for the most part, irrelevant to the issues presented in this appeal. Therefore, they are only discussed below to the limited extent they are relevant.

      In Wesley Health System , the Supreme Court emphasized the three-part balancing test and appeared to hold that the trial court's failure to apply the test was a per se abuse of discretion and reversible error. See Wesley Health Sys. , 200 So.3d at 446-47 (¶¶ 23-26). The same is true in this case. Although both parties briefed and argued the three-part test in the circuit court, the circuit court's ruling did not address any of the relevant factors. We do not reverse on this ground, however, because we conclude that application of the three-part test requires that the default judgment be set aside.

      See also Levy v. Delta Airlines , No. 02 Civ. 477(TPG), 2004 WL 2222149, at *5 (S.D.N.Y. Sept. 30, 2004) ("It was the responsibility of the [plaintiffs], both as a matter of common sense and under [Delta's contract of carriage], to obtain for [their] child the proper travel documents. [They] had no right to rely on a Delta ticket agent in connection with this subject."); Williams v. Nw. Airlines Inc. , 163 F.Supp.2d 628, 631 (W.D.N.C. 2001) ("Basically, federal law provides that international carriers are not assurers of their passengers' compliance with the various international laws concerning entry. The duty, as it should be, is placed solely on the passengers."); Seisay v. Compagnie Nationale Air France , No. 95 Civ. 7660(JFK), 1997 WL 431084, at *4 (S.D.N.Y. July 30, 1997) (holding that under the applicable tariff "it was solely [the passenger's] obligation to obtain [necessary travel] documents," and "under the terms of the tariff, [the airline was] not liable for breach of contract").

      McCubbins asserts that Judge Jordan's order remanding this case to state court (see supra note 1) rejected United's argument based on the Contract of Carriage. This assertion conflates two distinct issues. Judge Jordan ruled that federal question jurisdiction did not exist because McCubbins's claims were not completely preempted by the Airline Deregulation Act or the Montreal Convention. A defense based on federal law does not provide a basis for removal. See, e.g. , Beneficial Nat'l Bank v. Anderson , 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). However, the Supreme Court has held that purely state-law claims, such as McCubbins's, may be removed to federal court "when a federal statute wholly displaces the state-law cause of action through complete pre-emption." Id. at 8, 123 S.Ct. 2058. United argued that the Airline Deregulation Act and the Montreal Convention completely preempted McCubbins's claims and thereby granted the federal court jurisdiction over the case. Judge Jordan rejected United's jurisdictional arguments; however, he did not address, let alone reject, United's defense on the merits based on the terms of its Contract of Carriage.

      McCubbins argues that the general "delay" since the incident amounts to prejudice. However, McCubbins himself waited almost two years after the incident to file the lawsuit. See BB Buggies , 150 So.3d at 104 (¶ 33) (plaintiffs cannot claim prejudice based on their own delay in filing suit). After learning of the default judgment against it, United promptly removed the case to federal court and simultaneously moved to set aside the default judgment. See supra n.1. While the removal to federal court and remand to state court took some time, there is no showing that the removal was frivolous or undertaken for purposes of delay.


source: Caselaw Access Project

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

license: Public Domain

text:
    Julius Scott TURNER a/k/a Julius S. Turner a/k/a Julius Turner, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00815-COA
    Court of Appeals of Mississippi.
    May 8, 2018 Rehearing Denied October 9, 2018
    ATTORNEY FOR APPELLANT: JULIUS SCOTT TURNER (PRO SE)
    ATTORNEY FOR APPELLEE: ALICIA MARIE AINSWORTH, Jackson
    BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Julius Scott Turner appeals the denial of his motion for post-conviction collateral relief (PCCR). We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 11, 2014, Turner entered a guilty plea to Count I, possession of a controlled substance with intent, and Count II, unlawful possession of a firearm or weapon by a convicted felon. He was subsequently sentenced as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2014) to twelve years for Count I and ten years for Count II, to run concurrently, for a total of twelve years to serve in the custody of the Mississippi Department of Corrections.

¶ 3. On February 13, 2015, Turner filed a motion for PCCR, which the trial court denied. Turner now appeals and argues: (1) his guilty plea was involuntarily entered, (2) he received ineffective assistance of counsel, (3) his sentence as a habitual offender is illegal, and (4) his constitutional rights were violated.

STANDARD OF REVIEW

¶ 4. We will not disturb a circuit court's denial of a motion for PCCR unless the factual findings are clearly erroneous. Kennedy v. State , 179 So.3d 82, 83 (¶ 5) (Miss. Ct. App. 2015). However, questions of law are reviewed de novo. Id.

ANALYSIS

I. Voluntariness of Guilty Plea

¶ 5. Turner first argues his guilty plea was involuntarily entered. Turner claims he pled guilty due to constant pressure from his attorney and family. "When a PC[C]R movant tries to get out of an already entered guilty plea, it is the movant, not the State, who bears the burden of proving by a preponderance of evidence that the guilty plea was involuntary." Watkins v. State , 170 So.3d 582, 585 (¶ 11) (Miss. Ct. App. 2014).

¶ 6. "A guilty plea is not binding upon a criminal defendant unless it is entered voluntarily and intelligently." Holland v. State , 956 So.2d 322, 327 (¶ 11) (Miss. Ct. App. 2007). "A plea is deemed 'voluntary and intelligent' only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea." Id. "[T]he defendant must be advised that his guilty plea waives multiple constitutional rights." Hill v. State , 60 So.3d 824, 828 (¶ 11) (Miss. Ct. App. 2011). However, "[a] lawyer's 'persuading' a defendant to plead guilty by 'every means at his disposal' does not render the plea involuntary if that persuasion does not result from fear, violence, deception, or improper inducements." Brasington v. State , 760 So.2d 18, 26 (¶ 38) (Miss. Ct. App. 1999).

¶ 7. "[T]he most significant indicator of the voluntariness of a defendant's guilty plea is the thoroughness with which the defendant was interrogated by the lower court." Watkins , 170 So.3d at 585-86 (¶ 12) (internal quotation marks omitted). "The Court can place great weight on the sworn testimony of a defendant given at a plea hearing leaving the defendant with a high hurdle in recanting that testimony." Pevey v. State , 914 So.2d 1287, 1290 (¶ 8) (Miss. Ct. App. 2005).

¶ 8. During Turner's plea hearing, the following exchange occurred:

THE COURT: Before you should be a petition to enter a plea of guilty. Is there one?
[TURNER]: Yes, sir.
THE COURT: Have you read that petition?
[TURNER]: Yes, sir.
THE COURT: Do you understand it?
[TURNER]: Yes, sir.
THE COURT: Have you discussed it with your lawyer?
[TURNER]: Yes, sir.
THE COURT: Has your lawyer answered any and all questions you had or have relative to that petition to plead guilty?
[TURNER]: Yes, sir.
THE COURT: Is everything contained in that petition to plead guilty true and correct?
[TURNER]: Yes, sir.
THE COURT: Are you telling me you wish to plead guilty here this morning because you are in fact guilty?
[TURNER]: Yes, sir.
....
THE COURT: So you must be aware of the fact that when one pleads guilty, you waive and give up certain constitutional rights, because those constitutional rights are contained in paragraph five of your petition to plead guilty; is that right, sir?
[TURNER]: Yes, sir.
....
THE COURT: Do you understand by pleading guilty, you're waiving and forever giving up each and every one of the rights we just went over?
[TURNER]: Yes, sir.
THE COURT: And is that what you wish to do?
[TURNER]: Yes, sir.
THE COURT: Did anyone use any force, threats, coercion, intimidation or place you in any type of duress to induce you into pleading guilty here today?
[TURNER]: No, sir.
THE COURT: Did anyone exercise any undue influence, guarantee you a particular sentence, or make any type of promise to you whatsoever to induce you into pleading guilty here today?
[TURNER]: No, sir.
....
THE COURT: So that your exposure in this case is one to 40 years in the penitentiary and/or a fine of $5,000 up to $1,005,000. Do you understand that, sir?
[TURNER]: Yes, sir.
THE COURT: And do you understand that as long as this Court stays within those boundaries or parameters, it is within its discretion?
[TURNER]: Yes, sir.
THE COURT: And do you further understand, Mr. Turner, that this Court could sentence you to the maximum penalty, which would be 40 years in the penitentiary and impose a $1,005,000 fine?
[TURNER]: Yes, sir.
THE COURT: And you still wish to plead guilty?
[TURNER]: Yes, sir.

¶ 9. The record shows Turner was advised of the nature of the charges against him and the consequences of a guilty plea. Turner was further advised that by pleading guilty, he was waiving certain constitutional rights. Importantly, Turner stated his guilty plea was not the result of any force, threats, coercion, or intimidation. Instead, Turner stated he was pleading guilty because he committed both crimes.

¶ 10. We find Turner's guilty plea was voluntarily entered. Accordingly, this claim is without merit.

II. Ineffective Assistance of Counsel

¶ 11. Turner next argues he received ineffective assistance of counsel. Specifically, Turner claims his counsel failed to conduct an independent investigation into his case, was "hostile to the facts of affirmative defenses," and failed to make certain objections during his pretrial hearings.

¶ 12. "[W]here a defendant voluntarily pleads guilty to an offense, he waives all non-jurisdictional rights incident to trial...." Hill , 60 So.3d at 827 (¶ 6). "This waiver includes all claims of ineffective assistance of counsel, except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea." Id. (internal quotation marks omitted).

¶ 13. As previously discussed, Turner voluntarily pled guilty to both offenses. Therefore, he waived his right to now claim ineffective assistance of counsel.

¶ 14. Despite the waiver, we find Turner's ineffective-assistance-of-counsel claim fails. To prove ineffective assistance of counsel, Turner must show: (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. To overcome this presumption, Turner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.

¶ 15. "The defendant must allege facts of ineffective assistance with specificity and detail." Berryhill v. State , 197 So.3d 938, 941 (¶ 10) (Miss. Ct. App. 2016)

(internal quotation marks omitted). A "petitioner's bare assertions are insufficient." Id.

¶ 16. Turner claims his counsel failed to adequately investigate his case and was "hostile to the facts of affirmative defenses." However, the plea-hearing transcript shows Turner advised the trial court, under oath, that he was satisfied with the services of his counsel, that his counsel had taken the time to familiarize himself with the facts and circumstances of his case, and had explained the elements of the charged crimes as well as any possible defenses he might have to those charges. Additionally, the signed plea petition indicates Turner was "satisfied with the advice and help [his] lawyer ha[d] given."

¶ 17. Turner fails to offer any evidence of his ineffective-assistance-of-counsel claim beyond the unsupported assertions in his brief that a police officer lied and fabricated evidence in order to convict him. However, such bare assertions are insufficient. Id.

¶ 18. Turner further claims his counsel failed to make certain objections. However, "counsel's choice of whether or not to file certain motions ... or make certain objections fall[s] within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim." Jackson v. State , 815 So.2d 1196, 1200 (¶ 8) (Miss. 2002) (internal quotation mark omitted).

¶ 19. Overall, Turner has failed to show that his counsel's performance was deficient and that the alleged deficient performance prejudiced his defense. Accordingly, his ineffective-assistance-of-counsel claim fails.

III. Illegal Sentence

¶ 20. Turner next argues his sentence under Mississippi Code Annotated section 99-19-81 is illegal. He claims the trial court erroneously introduced certified copies of his prior felony convictions without any accompanying testimony from the certifying official. Turner contends that his inability to confront the party responsible for certifying the copies deprived him of his sixth amendment right to confrontation.

¶ 21. The Mississippi Supreme Court has set out the parameters of the right to confrontation:

The Sixth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution guarantee a criminal defendant the right to confront and cross-examine the witnesses against him. The United States Supreme Court has held that the Sixth Amendment Confrontation Clause bars the admission of "testimonial statements" made by a witness who does not appear at trial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him. Though no exhaustive list defining testimonial statements exists, "a document created solely for an 'evidentiary purpose' ranks as testimonial."

Small v. State , 141 So.3d 61, 68 (¶ 23) (Miss. Ct. App. 2014) (quoting Grim v. State , 102 So. 3d 1073, 1078 (¶ 12) (Miss. 2012) ).

¶ 22. "We have held that self-authenticating records of a defendant's prior convictions are not testimonial evidence, and do not trigger a defendant's constitutional right to confront witnesses." Id. at 69 (¶ 24). Indeed, the certification of the documents "indicates that the custodian of the records swore that the documents were true and correct copies, not that [Turner] actually committed any act." Frazier v. State , 907 So.2d 985, 997 (¶ 42) (Miss. Ct. App. 2005). Accordingly, we find this issue is meritless.

IV. Constitutional Violations

¶ 23. Turner last argues his constitutional rights were violated. He claims he was denied the right to confront the confidential informant in this case. He also claims that the evidence obtained by the police and used to convict him was falsified and manufactured. Turner asserts that these violations, coupled with his ineffective counsel, left him with no choice but to plead guilty. We disagree.

¶ 24. "If a defendant pleads guilty to committing the charged offense, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Rustin v. State , 138 So.3d 270, 273 (¶ 8) (Miss. Ct. App. 2014) (internal quotation mark omitted). By pleading guilty to the charged offenses, Turner's claim is procedurally barred. Id.

¶ 25. Notwithstanding the procedural bar, we find Turner's constitutional claims fail. Not only are these claims made without any supporting evidence, they are all contradictory to Turner's testimony in the record. Accordingly, we find this issue is without merit.

CONCLUSION

¶ 26. We find no merit to the issues raised on appeal. Thus, we affirm the judgment of the Harrison County Circuit Court.

¶ 27. AFFIRMED.

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


text:
    Welford Lee MCCARTY a/k/a Levi McCarty a/k/a Pork Chop, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00414-COA
    Court of Appeals of Mississippi.
    June 12, 2018 Rehearing Denied September 18, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: PHILLIP BROADHEAD, OXFORD
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS
    BEFORE BARNES, P.J., WILSON AND GREENLEE, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Following a jury trial in the Greene County Circuit Court, Welford Lee McCarty was convicted of capital murder and desecration of a human corpse. The circuit court sentenced him to life imprisonment without the possibility of parole for capital murder and three years' imprisonment on the latter offense. On appeal, McCarty alleges that the trial judge abused his discretion by admitting photographs of the victim's dismembered and decomposed corpse and bones. He also alleges that the State's use of the photos "was part of a larger pattern of prosecutorial misconduct." McCarty's claims are without merit. Therefore, his convictions and sentences are affirmed.

FACTS AND PROCEDURAL HISTORY

¶ 2. McCarty manufactured methamphetamine on his property in rural Greene County. In early 2013, McCarty learned that his friend Donovan Cowart was working with law enforcement as a confidential informant. McCarty told Cowart that he wanted to show him a hole that he had dug on his property for use in his meth operation. McCarty, along with Robert Stevens and David Allen, picked up Cowart and drove to the hole. As Cowart was walking over to look at the hole, McCarty retrieved a shotgun from the trunk of his car and shot Cowart in the back of the head. Cowart fell into the hole, and McCarty shot him again. McCarty and Stevens then took Cowart's cell phone, searched his wallet for money, and buried the body in the hole.

¶ 3. A few weeks later, McCarty became concerned that the police would search his property, so he insisted that Stevens help him move the body to another location. After the two men dug up the body, McCarty said that they had to dismember it. McCarty retrieved an ax, and Stevens used the ax to sever the head, arms, and legs below the knees and cut the torso in half. The two men stuffed the body parts into trash bags and then tied up the bags and cinder blocks inside a large tarp. They threw the tarp into a nearby pond, but it would not sink. McCarty fired his shotgun into the tarp, but it still would not sink, so Stevens wedged it under a tree in a culvert.

¶ 4. In May 2015, law enforcement found the tarp with the dismembered and decomposed body in the culvert. One of Cowart's shoes was also in the tarp. The ax used to dismember the body, which Stevens identified at trial, was found about forty feet away in the pond. The FBI subsequently dug up the original burial site on McCarty's property. There, the FBI found Cowart's other shoe, his wallet, a baseball cap with a large hole in the back, and several teeth, which DNA tests later confirmed were Cowart's teeth.

¶ 5. In September 2015, a Greene County grand jury indicted McCarty and Stevens for capital murder, with the underlying felony of robbery, and desecration of a human corpse. The court appointed the State Office of Capital Defense Counsel to represent McCarty, and McCarty's case proceeded to a jury trial in February 2017. Stevens and Allen testified against McCarty at trial consistent with the facts discussed above. Stevens testified that in exchange for his testimony the State had agreed to allow him to plead guilty to second-degree murder with a sentencing recommendation of twenty to thirty years. Allen was not charged in connection with Cowart's murder. He testified that he did not know in advance that McCarty planned to kill Cowart, and he did not help McCarty and Stevens conceal the body afterward. Allen testified that McCarty threatened to kill him and his family if he ever told anyone about the murder. At the time of McCarty's trial, Allen was under indictment for an unrelated armed robbery; however, the State had not offered him any plea bargain or leniency on that charge in exchange for his testimony.

¶ 6. In addition, Alicia Keel, a friend of McCarty, testified that McCarty confessed to the murder. According to Keel, McCarty admitted that he killed Cowart on his property and buried the body there; she also testified that on a later date, McCarty told her that he planned to move the body and sink it in a pond.

¶ 7. The jury returned a verdict finding McCarty guilty of capital murder, with the underlying felony of robbery, and desecration of a human corpse. The court sentenced McCarty to life imprisonment without the possibility of parole for capital murder and three years' imprisonment for desecration of a human corpse. McCarty filed a motion for a new trial, which was denied, and a notice of appeal. On appeal, McCarty raises the two issues noted above. We find no error and affirm.

ANALYSIS

I. Photographs

¶ 8. McCarty argues that the trial judge abused his discretion by admitting into evidence nineteen photographs. Six of these photos show parts of the decomposed and dismembered corpse as it was found in the tarp. The other thirteen photos show the victim's dry bones as they were examined during the autopsy performed by Dr. Mark LeVaughn, Chief Medical Examiner for the State of Mississippi. McCarty argues that these photos were unfairly prejudicial and should have been excluded under Mississippi Rule of Evidence 403. However, we find no abuse of discretion in the trial judge's rulings.

¶ 9. "On appeal, this Court will give great deference to trial judges in the sound exercise of their discretion in the admission of photographs. Though this discretion is not unlimited, it is considerable, and we will reverse a trial judge's decision to admit a photograph only if he abused that discretion." Hutto v. State , 227 So.3d 963, 982 (¶ 55) (Miss. 2017) (citations, internal quotation marks, and brackets omitted), cert. denied , --- U.S. ----, 138 S.Ct. 983, 200 L.Ed.2d 262 (2018). The Supreme Court has held that "photographs of a victim have evidentiary value when they aid in describing the circumstances of the killing, describe the location of the body and cause of death, or supplement or clarify witness testimony." Id. (citations omitted) (quoting Keller v. State , 138 So. 3d 817, 857 (¶ 101) (Miss. 2014) ). "Reversal based on the admission of cumulative and/or gruesome photographs is rare." Cowart v. State , 178 So.3d 651, 663 (¶ 31) (Miss. 2015).

¶ 10. Here, at least one legitimate evidentiary purpose of the photos is obvious: the State had to meet its burden of proving, beyond a reasonable doubt, that McCarty was guilty of the crime of desecration of a human corpse. "[T]he familiar, standard rule [is] that the prosecution is entitled to prove its case by evidence of its own choice ...." Old Chief v. United States , 519 U.S. 172, 186, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Here, the prosecution understandably sought to establish the desecration of a human corpse by showing the desecrated human corpse. In addition, Dr. LeVaughn used the photos to explain the path of the fatal gunshot wound to Cowart's head and the manner of the dismemberment. The photos also corroborated the details of Stevens's testimony, which was central to the State's case against McCarty.

¶ 11. Because the photos were relevant, they were admissible under Mississippi Rules of Evidence 401 and 402. Relevant evidence should be excluded under Rule 403 only "if its probative value is substantially outweighed by a danger of," inter alia, "unfair prejudice." M.R.E. 403 (emphasis added). " Rule 403's scope is narrow, as it is an extraordinary measure that should be used very sparingly." Curry v. State , 202 So.3d 294, 298 (¶ 13) (Miss. Ct. App. 2016) (internal quotation marks omitted). The decision whether to exclude evidence under Rule 403"is committed to the broad discretion of the trial judge, and our standard of review is highly deferential." Id. at 298-99 (¶ 13).

¶ 12. The photos at issue in this case were not unfairly prejudicial. They are unlike the photo that led to the rare reversal in Bonds v. State , 138 So.3d 914 (Miss. 2014) -"a full-color, close-up, frontal photograph of [the victim's] maggot-infested skull and facial area," id. at 918 (¶ 10), which the Supreme Court found to be "gruesome in the extreme," id. at 920 (¶ 15). There were no maggots in the photos in this case, and the dismembered corpse was in such an advanced state of decomposition that it is not even obvious what most of the photos of the corpse depict without the benefit of Dr. LeVaughn's testimony. The remaining photos show only dry bones, not blood, flesh, or gore. The photos are not "gruesome in the extreme," they were introduced for legitimate evidentiary purposes, and the prosecution did not make excessive or prolonged use of them at trial. The trial judge considered the photos and found that they were probative and would not be prejudicial. On the facts of this case, we cannot say that the danger of unfair prejudice, if any, "substantially outweighed" the photos' probative value. M.R.E. 403. Nor can we say that the trial judge abused his discretion by admitting the photos.

¶ 13. On appeal, McCarty relies heavily on Bonds 's "two-part test" for the admission of photos of a crime victim: "First, the trial court must determine whether the proof is absolute or in doubt as to identity of the guilty party. Secondly, it must be determined whether the photographs are necessary evidence or simply a ploy by the prosecutor to arouse the passion and prejudice of the jury." Bonds , 136 So.3d at 918 (¶ 8) (quoting Manix v. State , 895 So.2d 167, 178 (¶ 33) (Miss. 2005) ). McCarty now contends that the photos should have been excluded because the proof was "absolute" and there was no "doubt as to the identity of the guilty party"-i.e., McCarty. However, this argument directly conflicts with the position that McCarty took at trial. McCarty's able trial counsel absolutely contested the "identity of the guilty party," arguing forcefully that the State had failed to prove beyond a reasonable doubt that McCarty killed Cowart. Moreover, for the reasons discussed above, the photos were offered for legitimate evidentiary purposes, not as a "ploy by the prosecutor to arouse the passion and prejudice of the jury." Accordingly, the trial judge's discretionary ruling to admit the photos did not run afoul of Bonds 's holding.

II. Alleged Prosecutorial Misconduct

¶ 14. In his second issue on appeal, McCarty argues that he "suffered the injustice of a fundamentally unfair trial ... due to multiple incidents of ... prosecutorial misconduct," including but not limited to the prosecution's use of the photos discussed above. The litany of issues that McCarty raises under this heading do not warrant the very serious charge of "prosecutorial misconduct." Nor do any of these issues warrant a new trial.

¶ 15. First, McCarty argues that "[t]he prosecution needlessly presented cumulative evidence in violation of [Mississippi Rule of Evidence] 403." This assertion relates in part to the photos of the corpse and bones; however, as discussed above, those photos were admissible and legitimate evidence. Aside from those photos, McCarty simply argues that the State called more witnesses and introduced more exhibits than were necessary to prove the State's case. McCarty cites no objections that he made to any of this other evidence, nor does he explain how any of it was unfairly prejudicial. The district attorney and assistant district attorney simply met their constitutional obligation to prove guilt beyond a reasonable doubt. That is their job, not "prosecutorial misconduct."

¶ 16. Second, McCarty argues that "[t]he prosecution violated [his] constitutional right to a fundamentally fair trial by calling or attempting to call clearly biased witnesses whose testimony was not necessary to prove [the] case." McCarty first cites the State's pretrial motion to call his wife as a witness. However, the trial judge excluded her testimony, and there was no mention of the issue in the presence of the jury. The State handled this legal issue appropriately and ethically, and McCarty cannot possibly show that he was prejudiced in any way. McCarty also criticizes the State's use of Stevens's testimony pursuant to a plea bargain, which McCarty calls a "deal with the devil." However, the jury was made aware of the plea agreement, which required Stevens to testify truthfully. Offering testimony based on a plea bargain is not "prosecutorial misconduct" either-not even close.

¶ 17. Third, McCarty argues that "[t]he prosecution repeatedly and needlessly attempted to introduce evidence of gang affiliation and a conspiracy in an attempt to unfairly bias the jury against [him]." McCarty cites two instances in which the State sought to introduce evidence of gang affiliation or a conspiracy on the theory that McCarty's gang had ordered Cowart's murder. The prosecution, again, handled these issues appropriately and ethically in a pretrial motion and, later, outside the presence of the jury. McCarty admits that "the State was ultimately unsuccessful," as the trial judge excluded the evidence after finding that there was insufficient corroboration. McCarty shows no prejudice, since the jury was never informed of any gang affiliation, and it is clear that the State proceeded in good faith. Again, this was not "prosecutorial misconduct."

¶ 18. Fourth, McCarty argues that "[t]he prosecution violated [his] constitutional right to a fundamentally fair trial by overtly, repeatedly, and excessively soliciting sympathy from the jury for [two witnesses, Cowart's sister and the mother of Cowart's children]." In support of this allegation, McCarty cites only three brief comments from the State's opening and closing statements and a few lines of unexceptional testimony from witnesses who were understandably upset by Cowart's murder. McCarty's very capable trial counsel did not object to any of the cited argument or testimony-and for good reason. There was nothing improper or out-of-bounds about the argument or testimony. It certainly does not raise any issue of "prosecutorial misconduct."

¶ 19. Fifth, McCarty asserts that "[i]n closing argument, the prosecution attempted to unfairly [place] a 'burden' to convict [him] on the jury and also made a 'send the message' argument to the jury." On its face, this particular argument raises a serious issue. Our Supreme Court has "repeatedly condemned the 'send a message' argument and warned prosecutors accordingly." Payton v. State , 785 So.2d 267, 270 (¶ 11) (Miss. 1999). "A 'send the message' argument is one that encourages 'juries to use their verdict to 'send-a-message' to the public or to other potential criminals,' instead of 'render[ing] a verdict based solely on the evidence introduced at the trial of that case.' " Terrell v. State , 237 So.3d 717, 734 (¶ 67) (Miss. 2018) (quoting Brown v. State , 986 So.2d 270, 275 (¶ 11) (Miss. 2008) ).

¶ 20. However, the record does not support McCarty's claim. In the cited portion of the transcript, the district attorney simply concluded his argument as follows:

The burden of this case is now y'alls. For four years the community has waited to hear what happened. That family has waited. It's time. The burden is y'alls. I ask you to do what you told us you would do. Look at the evidence. Listen to the testimony. You told us, you agreed with when I said evidence is oral and physical and we've given you both. We told the story of what happened to Donovan Cowart. I ask you to find [McCarty] guilty of capital murder and guilty of desecration of a corpse. Thank you.

The district attorney did not ask the jurors to "send a message" to anyone. Rather, he reinforced their obligation to render a verdict based on the evidence presented. McCarty's able trial counsel did not object to these comments, and there was nothing improper about the argument.

¶ 21. In summary, McCarty's "prosecutorial misconduct" argument fails to identify any instance of misconduct or reversible error. The argument should not have been phrased in terms of "prosecutorial misconduct" because the prosecutors in this case did absolutely nothing to warrant such an accusation.

CONCLUSION

¶ 22. McCarty received a fair trial, there is substantial evidence to support the jury's guilty verdict, and the issues raised on appeal are without merit. Accordingly, McCarty's convictions and sentences are affirmed.

¶ 23. AFFIRMED.

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

      On redirect, Allen also testified that he had testified against McCarty before the grand jury before the alleged armed robbery occurred.

      Phillip W. Broadhead, clinical professor and director of the University of Mississippi School of Law Criminal Appeals Clinic, was appointed as McCarty's appellate counsel. Third-year law students under Professor Broadhead's supervision were appointed as special counsel pursuant to the Mississippi Law Student Limited Practice Rule.

      Bonds followed McNeal v. State , 551 So.2d 151 (Miss. 1989), which similarly reversed and remanded for a new trial based on the admission of a "full-color, close-up view of the [victim's] decomposed, maggot-infested skull." Id. at 159.

      We note that there was no evidence or argument that McCarty killed Cowart by accident or in self-defense, and the jury was not instructed on any lesser offenses. Accordingly, if there really was no "doubt as to the identity of the guilty party," then McCarty could not possibly have been prejudiced by the admission of the photographs.


author: FAIR, J., FOR THE COURT: GREENLEE, J., CONCURRING IN PART AND DISSENTING IN PART:

text:
    Douglas WALKER a/k/a Douglas L. Walker a/k/a Douglas Lamar Walker, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01442-COA
    Court of Appeals of Mississippi.
    June 19, 2018 Rehearing Denied September 25, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH, JACKSON
    EN BANC.
   FAIR, J., FOR THE COURT:

¶ 1. Douglas Walker was convicted of one count of sexual battery and one count of fondling, both stemming from sexual contact with the eight-year-old daughter of his girlfriend. On appeal, Walker contends that his convictions were not supported by substantial evidence and that his two convictions should be merged because one is a lesser-included offense of the other. We find no merit to these contentions, and so we affirm Walker's convictions.

FACTS

¶ 2. On September 22, 2012, eight-year-old "Amy" had spent the day with her adult stepsister, Leslie Horton. As Horton pulled up to Amy's home to drop her off, Amy told Horton that she did not want to leave the car until her mother came home because Walker, her mother's live-in boyfriend, was there. When Horton asked why, Amy told her that Walker "puts his private inside of her and makes her go up and down." Horton then called Debbie Williams, Amy's aunt, and they met up. Amy told Williams that Walker "touches [her] and makes [her] go up and down on him"; she also said that "sometimes when her mother was not at home [Walker] would touch her private areas." Williams and Horton then took Amy to the hospital and contacted the police. Amy was later examined by Stacey Carter, a nurse practitioner specializing in pediatric forensic medicine at the University of Mississippi Medical Center. Carter noted that Amy had redness on her labia majora, but her examination was otherwise normal. Amy also disclosed the abuse to Katrina Kennedy, a forensic examiner, and a video recording of the interview was entered into evidence at the trial.

DISCUSSION

1. Indictments

¶ 3. Walker contends that his indictments were "woefully inadequate and failed to satisfy the notice requirements" of Rule 7.06 of the Uniform Rules of Circuit and County Court Practice, which at the time provided that "[t]he indictment upon which the defendant is to be tried shall be a plain, concise, and definite written statement of the essential facts constituting the offense charges and shall fully notify the defendant of the nature and cause of the accusation."

¶ 4. Count I of the indictment charged Walker with sexual battery in violation of Mississippi Code Annotated section 97-3-95(1) (Rev. 2014) and alleged that Walker "did unlawfully, wilfully, and feloniously engage in sexual penetration with [Amy], a female child under the age of fourteen (14) years, by inserting his penis and/or finger(s) and/or palm into her genital opening and/or vagina." Count II charged Walker with fondling, also known as molestation or gratification of lust, in violation of section 97-5-23(1) (Rev. 2014). It alleged that Walker "did unlawf[u]lly, wilfully, and feloniously, for the purpose of gratifying his lust or indulging his depraved licentious sexual desires, handle, touch or rub with his hands and/or penis, the vagina or genital area and/or buttock and/or back and body of [Amy], a female child under the age of sixteen (16)."

¶ 5. We must first note that Walker failed to object to the form of the indictment, and this issue is therefore waived on appeal. Pustay v. State , 221 So.3d 320, 353 (¶ 109) (Miss. Ct. App. 2016). Nonetheless, we will address the merits of the issue.

¶ 6. The gist of Walker's complaint seems to be that the indictments were overly broad in alleging the manner or means by which he violated the respective statutes; he complains about the number of "ors" and "and/ors" when describing what he touched or penetrated, and with what. But it is a well-established axiom of law that "where an indictment tracks the language of the statute, the indictment sufficiently puts the defendant on notice of the charges against him in order to prepare his defense." Jenkins v. State , 101 So.3d 161, 165 (¶ 10) (Miss. Ct. App. 2012) (quoting Hicks v. State , 40 So.3d 640, 642 (¶ 9) (Miss. Ct. App. 2010) ). Thus, when an indictment tracks the language of the Mississippi Code, it complies with Rule 7.06. See Graves v. State , 216 So.3d 1152, 1159 (¶ 12) (Miss. 2016). The indictment here tracks the statutory language for each offense, provides the time range and location of each offense, identifies the victim and the ages of the defendant and victim, and alleges that the acts were committed willfully, unlawfully, and feloniously. Therefore, we find that the indictment was sufficient.

¶ 7. Furthermore, "the ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense." Jones v. State , 856 So.2d 285, 289 (¶ 11) (Miss. 2003). Walker's defense at trial was that he never had inappropriate contact with Amy. Therefore, we cannot see how an indictment that specified several means or modes of committing the offenses prejudiced Walker in preparation of his defense. See Tapper v. State , 47 So.3d 95, 102 (¶ 27) (Miss. 2010) ("The cold, hard facts are that, even if these young, immature girls had the ability to describe to the prosecutor in adult terms and in the most graphic detail the acts which they said Tapper committed upon them, Tapper would not have been in any better position to prepare his defense 'that he didn't do it' ....").

¶ 8. Alternatively, Walker asserts that if this Court finds that he waived his right to assert this issue on appeal, then "such conduct would clearly be ineffective assistance of counsel." "In order to prevail on an ineffective-assistance-of-counsel claim, a defendant must prove that his attorney's performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial." Dartez v. State , 177 So.3d 420, 423 (¶ 19) (Miss. 2015). Walker cites no authority nor any proof to show how his trial attorney's performance deprived him of a fair trial. Additionally for the above reasons, the indictment was not defective. Thus, this issue is without merit.

2. Sufficiency of the Evidence

¶ 9. Next, Walker challenges the sufficiency of the evidence supporting his conviction for sexual battery. When reviewing the legal sufficiency of evidence, we consider all evidence in the light most favorable to the State. Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (abrogated on other grounds by Little v. State , 233 So.3d 288, 295 (Miss. 2017) ). Credible evidence consistent with guilt must be accepted as true. McClain v. State , 625 So.2d 774, 778 (Miss. 1993). The relevant inquiry 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." Bush , 895 So.2d at 843 (¶ 16). Further, "[i]t is within the discretion of the jury to accept or reject testimony by a witness, and the jury may give consideration to all inferences flowing from the testimony." Johnson v. State , 832 So.2d 1263, 1265 (¶ 3) (Miss. Ct. App. 2002) (internal quotation mark omitted).

¶ 10. Specifically, Walker claims that there is insufficient proof of penetration, which is an essential element of sexual battery. See Johnson v. State , 626 So.2d 631, 632 (Miss. 1993). Sexual penetration has been statutorily defined to include "cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal openings of another person's body by any part of a person's body, and insertion of any object into the genital or anal openings of another person's body." Miss. Code Ann. § 97-3-97(a) (Rev. 2014). "Slight penetration of the vulva or labia is sufficient to constitute penetration." Ashford v. State , 233 So.3d 765, 778 (¶ 41) (Miss. 2017).

¶ 11. The record reflects that the victim stated that Walker forced her to "go up and down" on him and that his penis was inside her when this occurred. Though hearsay, these accounts were admitted as substantive evidence and were sufficient to support the conviction. Walker points out that the victim was somewhat inconsistent in her forensic interview about whether Walker's penis was "inside" or "outside" of her, and she said it was "outside" in her testimony at trial. But inconsistent statements of a witness go to the weight of the evidence, not its sufficiency. Jamison v. Barnes , 8 So.3d 238, 245 (¶ 17) (Miss. Ct. App. 2008). And it was for the jury to decide whether the child's recollection of the events at trial, years after the fact, was entitled to more or less weight than her more contemporaneous accounts. "[T]he jury is the sole judge of the credibility of witnesses, and the jury's decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict." Nicholson v. State , 523 So.2d 68, 70 (Miss. 1988). On appeal, this Court is to view the evidence in the light most favorable to the verdict. Bush , 895 So.2d at 843 (¶ 16).

¶ 12. Regardless, the emphasis on whether Walker's penis was "inside" or "outside" of the victim is misplaced. Under Mississippi law, sexual penetration is a term of art, and its legal definition does not require that the defendant's penis be inside the victim in the colloquial sense. Instead, sexual penetration requires only penetration of the labia, the fleshy folds of skin surrounding the entrance to the vagina, and that penetration need only be slight. Jackson v. State , 452 So.2d 438, 440-41 (Miss. 1984). In other words, a defendant rubbing his penis between the labia of the victim is sexual penetration as our law defines it. In Jackson , the supreme court affirmed a conviction for rape based on evidence of abrasive injury to the labia; penetration could be inferred from the nature of the act that caused the abrasion. Id. Here, the victim stated that Walker forced her to "go up and down on him" while his "private" was "inside" her, or alternatively that Walker had pulled her underwear down, made her get on top of him, and "rubbed his private between her legs," although it was "outside" of her body. She also said Walker had put his penis "on top of her private." The medical examination corroborated her account, noting redness of the labia majora. A reasonable jury could find, beyond a reasonable doubt, that this contact included some slight penetration of the labia. That is all that is required to sustain the conviction for sexual battery.

¶ 13. We find the dissent's reliance on Jenkins v. State , 101 So.3d 161 (Miss. Ct. App. 2012), to be misplaced. In Jenkins , we held that "Jenkins putting his hand inside [the victim's] panties is not sufficient to constitute penetration." Id. at 167 (¶ 17). Our comment in Jenkins about what charges "typically result" from touching or rubbing was dictum, and it was addressed only to touching by the defendant's hand. See id. at 167 (¶ 17).

¶ 14. We conclude that the evidence was sufficient to support Walker's conviction of sexual battery.

3. Merger of Counts

¶ 15. Next, Walker contends that his convictions on Counts I and II violate the Double Jeopardy Clause of the United States Constitution. For this proposition he cites Friley v. State , 879 So.2d 1031 (Miss. 2004), where the Mississippi Supreme Court held that fondling can be a lesser-included offense of sexual battery.

¶ 16. We employ the Blockburger test to determine whether a double-jeopardy violation has occurred; it asks "whether each offense contains an element not present in the other." Watkins v. State , 101 So.3d 628, 632 (¶ 12) (Miss. 2012) (citing Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ). But the Blockburger test is only applicable "where the same act or transaction constitutes a violation of two distinct statutory provisions." Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In reviewing the victim's testimony and statements admitted as substantive evidence, it is apparent that she described multiple occurrences happening over a period of months. She described an act of sexual battery, which we have detailed above. But she also testified about other touchings that substantiate the molestation count, and these apparently occurred in entirely separate encounters. Amy testified that Walker would "touch [her] back, between [her] legs and on [her] stomach" with his hand, and that this happened more than once. She also confirmed that this happened a "different time" from when he touched her with his penis.

¶ 17. Since the two counts were substantiated by separate acts of the defendant, in this instance is irrelevant that fondling can be a lesser-included offense of sexual battery. Where "sufficient evidence exists to support separate and distinct acts of fondling and sexual battery, separate indictable charges can properly stand without implicating jeopardy issues." Faulkner v. State , 109 So.3d 142, 148 (¶ 21) (Miss. Ct. App. 2013).

¶ 18. Finally, Walker contends, in a single sentence argument, that "the failure to specifically allege what acts constituted fondling for the purposes of Count II violated Walker's future double jeopardy protections under Goforth v. State , 70 So.3d 174, 189 (Miss. 2011)." But Goforth is simply inapposite: it concerned "multiple, identically worded counts in the indictment," where the defendant had been convicted of some of the identical counts and acquitted of the others. Id. at 189 (¶ 69). The supreme court reversed the convictions on other grounds, and the issue was whether double jeopardy prohibited retrial on any of the counts-the court held that it did, since it had no way to identify what Goforth had already been acquitted of. See id. In Walker's case, the counts were not identically worded, Walker was not acquitted of any of them, and he is not going to be retried. There is no "future double jeopardy" issue because Walker cannot be prosecuted again for the same offenses during the time frame specified in the indictment. See Bateman v. State , 125 So.3d 616, 627-28 (¶ ¶ 36-37) (Miss. 2013).

¶ 19. We find no merit to this issue.

4. Ineffective Assistance of Counsel

¶ 20. Finally, Walker seeks to reserve all ineffective assistance of counsel claims that are not apparent from the record for post-conviction collateral relief. This is entirely unnecessary to preserve the claims, as issues which are not fully apparent from the record cannot be raised on direct appeal and are not waived by failure to do so. See M.R.A.P. 22(b). Still, this Court cannot reserve post-conviction claims for Walker; since he has appealed his conviction, he must petition the Mississippi Supreme Court for leave to file a post-conviction-relief motion. See Miss. Code Ann. § 99-39-7 (Rev. 2015). This may only be done after post-conviction issues outside the record, if they exist, are found, and a proposed motion is executed and submitted to the supreme court. See Miss. Code Ann. § 99-39-27 (Rev. 2015). On direct appeal, this Court can only deny relief without prejudice to a future post-conviction claim. See Johnson v. State , 236 So.3d 835, 839-40 (¶ 16) (Miss. Ct. App. 2017).

¶ 21. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, WILSON, WESTBROOKS AND TINDELL, JJ., CONCUR. GREENLEE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., AND CARLTON, J.

GREENLEE, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 22. I would reverse and render on Walker's conviction for Count I, sexual battery, finding the evidence insufficient to support the jury's verdict. I concur with the majority upholding the conviction of fondling and concur with the remainder of the majority opinion.

FACTS AND PROCEDURAL HISTORY

¶ 23. As I would reverse and render the conviction for sexual battery, a further factual assessment is in order. On September 22, 2012, eight-year-old Amy had spent the day with her adult stepsister, Leslie Horton. As Horton pulled up to Amy's home to drop her off, Amy told Horton that she did not want to get out of the car and wanted to wait for her mother to arrive at the home because Walker, her mother's live-in boyfriend, was there. Horton asked why Amy did not want to go inside. According to Horton, Amy told her that Walker "puts his private inside of her and makes her go up and down." Horton then called Debbie Williams, Amy's aunt, and they all met at a nearby restaurant.

¶ 24. Upon arrival, Williams asked Amy why she did not want to go home, and Amy replied that she did not want to because her mother was not there. According to Williams, Amy further explained that she did not want to go home because Walker "touches [her] and makes [her] go up and down on him." After hearing this, Williams decided to take Amy to Bolivar County Medical Center and have her examined. According to Williams, on the ride to the hospital, Amy told her that "sometimes when her mother was not at home [Walker] would touch her private areas." While at the hospital, the medical staff examined Amy and the Cleveland Police Department was called.

¶ 25. Shortly after her examination at Bolivar County Medical Center, Amy was examined by Stacey Carter, a nurse practitioner specializing in pediatric forensic medicine at the University of Mississippi Medical Center. Carter noted that Amy had redness on her labia majora but that her examination results were otherwise normal. Additionally, on October 2, 2012, Amy was taken for a video-recorded forensic interview performed by Katrina Kennedy.

¶ 26. From June 8 to 11, 2015, a jury trial was held before the circuit court. During this trial, the State's first witness was Horton, who testified that Amy told her the reason she did want to be dropped off at home was that Walker was home and he made her "go up and down when I don't want to." Horton further testified that Amy told her that "[Walker] puts his privates inside of her and makes her go up and down." Additionally, Williams, Amy's aunt, testified that Amy told her that "[Walker] touches her and makes her go up and down."

¶ 27. Amy, who was eleven at the time, also testified on behalf of the State at trial. During her testimony, Amy repeatedly stated that Walker touched her back, hands, between her legs and up around her stomach on numerous occasions. She further explained that she had underwear on when Walker would touch her but "one time [Walker] took his private out" and "pulled [her] underwear down," telling her "to lay on top of him." Amy testified that, then Walker would "rub his private between [her] legs," but when asked if Walker's private was inside her body, she stated "on the outside."

¶ 28. Additionally, the jury watched the October 2, 2012 video-recorded forensic interview between Amy and Kennedy. In this recording, Amy stated several times that Walker put his private in her. However, she then explained that this occurred while her clothes were on. When Kennedy asked Amy to explain if Walker's private was "in [her], was it on top of [her] skin, or something else," Amy replied "on top of it." Further, when asked for clarification later in the recording, Amy explained that Walker's private was on top of her private. Additionally, when asked about the conversation with her step-sister, Amy explained that she told Horton that she did not want to go inside her mother's home because Walker "touches her privates."

DISCUSSION

¶ 29. Walker asserts that the circuit court erred in not granting his motion for a judgment notwithstanding the verdict because there was insufficient evidence to support his conviction for count one, sexual battery. Specifically, he asserts that there is no evidence of "penetration" which is an essential element of sexual battery. Conversely, the State urges that viewing the evidence in a light most favorable to the State, there was sufficient evidence of penetration that could be inferred beyond a reasonable doubt. The State argues that it was reasonable for the jury to infer penetration from the video-recorded forensic interview combined with the testimony of Amy's step-sister and aunt. However, after reviewing the evidence in the light most favorable to the prosecution, a rational juror could not have found that Walker penetrated Amy as required for a sexual battery conviction. This rationale is especially true when considering Amy's ample testimony, and considering the evidence of penetration is hearsay from her appropriately supportive family.

¶ 30. Sexual penetration in Mississippi has been statutorily defined to include "cunnilingus, fellatio, buggery[,] or pederasty, any penetration of the genital or anal openings of another person's body by any part of a person's body, and insertion of any object into the genital or anal openings of another person's body." Miss. Code. Ann. § 97-3-97(a) (Rev. 2014). Further, Mississippi precedent has established that "[p]enetration is the very essence of the crime of sexual battery." Ringer v. State , 203 So.3d 794, 796 (¶ 3) (Miss Ct. App. 2016) (quoting Johnson v. State , 626 So.2d 631, 632 (Miss. 1993) ). Additionally,"[p]enetration, however slight, is sufficient to establish the penetration element of sexual battery." Burrows v. State , 961 So.2d 701, 706 (¶ 17) (Miss. 2007).

¶ 31. In Jenkins v. State , 101 So.3d 161 (Miss. Ct. App. 2012), this Court faced a similar situation. In Jenkins , the circuit court convicted Jenkins of two counts of sexual battery and two counts of fondling. Id. at 163 (¶ 1). This Court reversed one count of sexual battery, finding there was insufficient evidence to establish, beyond a reasonable doubt, that penetration occurred on the date alleged in the indictment. Id. at 168 (¶ 20). The Court noted that "[t]ypically, in Mississippi, incidents where a defendant merely has ... rubbed on the victim's vaginal area, without any testimony that the hand or finger entered inside, have resulted in the charge of fondling, not sexual battery." Id. at 167 (¶ 17). Therefore, the Court reasoned that the victim's testimony-that Jenkins put his hand inside her panties, on "the top part" of her genitals, and "just on the outside" of her genitals-was insufficient to establish that penetration occurred. Id. at 168 (¶ 20).

¶ 32. Similarly, in the present case, there is insufficient evidence of penetration. Horton did testify that Amy told her that Walker "puts his private inside of her and makes her go up and down." However, Williams's testimony did not indicate penetration occurred. According to Williams, Amy said she did not want to be with Walker "because he touches and makes me go up and down on him." Even Amy's testimony refutes evidence of penetration.

During Amy's direct testimony she did not indicate that any penetration occurred, only stating that Walker's private was "on the outside" of her body. Further, in the video-recorded forensic interview, Amy explained that she told Horton she did not want to go inside the home because Walker "touches her privates."

¶ 33. In the forensic interview, although Amy stated Walker's private was inside her body on occasion, she consistently stated that Walker's private was "on the outside" and that during the alleged episode of sexual battery, her clothes were on. Moreover, during the interview, Kennedy specifically asked Amy, "Did you say he put his private on you or in you? What did you say?" Amy responded, "On me." Such was consistent with her direct testimony at trial and contradicted Horton's testimony.

¶ 34. Accordingly, there was insufficient evidence of penetration. Therefore, the circuit court's judgment of conviction for count one, sexual battery, should be reversed and rendered.

IRVING, P.J., AND CARLTON, J., JOIN THIS OPINION.

      To protect the victim's privacy, we will refer to her by an alias.

      Effective July 1, 2017, Rule 7.06 was replaced with Rule 14.1(a) of the Mississippi Rules of Criminal Procedure.

      The Court of Appeals declines to identify sexual-assault victims. To protect the victim's privacy, her name has been substituted with an alias.