text:
    PRAIRIE FARMS DAIRY and Ace American Insurance Company, Appellants v. Gregory GRAHAM, Appellee
    NO. 2017-WC-01437-COA
    Court of Appeals of Mississippi.
    July 17, 2018
    ATTORNEYS FOR APPELLANTS: JOHN S. GONZALEZ, LINDSEY BLACKWELL HARRIS
    ATTORNEYS FOR APPELLEE: JAMES KENNETH WETZEL, GARNER JAMES WETZEL, Gulfport.
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In this appeal we must determine whether the Mississippi Workers' Compensation Commission (Commission) erred when it affirmed and adopted the administrative judge's (AJ) findings that Gregory Graham (1) sustained a 50% industrial loss of use of his left knee and was entitled to disability benefits, and (2) sustained a compensable back injury and was entitled to related medical expenses and temporary total disability benefits. Finding that the Commission's decision was supported by substantial credible evidence, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 25, 2014, Graham, who was employed by Prairie Farms Dairy to deliver milk to commercial establishments, injured his left knee while completing a delivery at a local grocery store in Moss Point, Mississippi. According to Graham, when he stepped off the truck and onto the pavement while holding a milk crate, his "knee popped and it would not move at all ...." Graham received treatment for his knee under workers' compensation, including physical therapy and eventual surgery, but stated that throughout his treatment his knee continually cracked, popped, and would give way or "buckle." In March 2015, Graham fell because his leg gave way as he was standing up from his chair in his home. Graham stated that he landed on his right side to keep from hitting a coffee table and that when he hit the floor, his "back popped in" and he experienced immediate pain in his neck and back.

¶ 3. Graham later testified that he saw Dr. George Salloum, an orthopedist, the next day, with whom he already had a previously scheduled appointment for his knee. According to Graham, he told Dr. Salloum about his continued knee/leg problems and his subsequent fall the night before and his resulting back pain. Dr. Salloum told Graham that he should follow up with Dr. Terry Smith, a neurosurgeon, for Graham's back concerns-as Dr. Smith had performed back surgery on Graham in 2007. In May 2015, during another follow-up appointment with Dr. Salloum following Graham's knee surgery, Dr. Salloum again indicated that Graham should see a neurosurgeon for his back/neck-related symptomology.

Graham subsequently discussed a neurosurgery appointment with a nurse case manager and was informed that it would not be authorized under workers' compensation because he had preexisting back problems. Graham followed up with Dr. Robert Kimber, an orthopedic surgeon and spine specialist, under his own insurance, as Dr. Kimber was the last physician Graham had seen for his back.

¶ 4. On June 22, 2015, Graham filed a petition to controvert. He sought benefits for a left knee injury and his subsequent back and neck injury. Prairie Farms filed their answer, admitting the left knee injury but disputing the claims for a back and neck injury. Graham filed a motion for medical treatment on August 18, 2015, requesting treatment for his back and indemnity benefits. Prairie Farms disputed the requested treatment and indicated their intent to obtain an Employer Medical Evaluation (EME). Prairie Farms then filed a motion to compel an EME. The AJ granted the motion, instructing Graham to attend the EME with Dr. Rahul Vohra.

¶ 5. Dr. Vohra reviewed Graham's medical records and examined him in person. With regard to Graham's left knee, Dr. Vohra agreed with Dr. Salloum's findings that Graham reached maximum medical improvement on June 9, 2015, and the 10% impairment assignment to the left lower extremity. Dr. Vohra also agreed with the restriction imposed by Dr. Salloum of no lifting over forty pounds, but otherwise opined that Graham's knee did not need further medical treatment. Because of Graham's previous left knee surgery, Dr. Vohra noted apportionment would apply; however, he did not opine as to what the apportionment should be because he did not have any medical records to support any preexisting impairment to the left knee. As to Graham's back pain, Dr. Vohra noted that Dr. Smith had previously performed a multilevel lumbar decompression; Dr. Salloum's medical records indicated that Graham had fallen several times but did not mention an injury resulting from any falls; and Graham had received pain-management treatment for his back prior to the 2014 work-related knee injury. Dr. Vohra concluded that Graham's complaints of back pain and back-related symptomology were not related to or aggravated by the left knee injury and were separate issues.

¶ 6. Dr. Kimber was deposed by Prairie Farms regarding his treatment of Graham. Dr. Kimber acknowledged that Graham had longstanding chronic back problems and noted that he had first seen Graham in September 2013 prior to the July 2014 work injury. At the initial 2013 appointment, Dr. Kimber noted that Graham had severe degenerative disc disease. When Graham returned to Dr. Kimber in 2015 for back pain, Dr. Kimber noted that Graham had sustained a knee injury and subsequently undergone knee surgery. Dr. Kimber further opined that Graham's back pain and symptomology was worse in 2015 (post-knee injury) than when he saw Graham in 2013 (pre-knee injury). Dr. Kimber concluded in his medical report that the back injury happened after the knee injury and that Graham's back issues were aggravated by the knee/leg issues.

¶ 7. On September 29, 2015, a hearing on the merits was held before the AJ to determine (1) the existence and extent of permanent disability, if any, from the work-related left knee injury ; and (2) whether a compensable back injury arose out of the July 25, 2014 work-related accident when Graham fell at home in March 2015 due to his knee buckling; and assuming compensability, whether Graham was entitled to temporary disability benefits and medical treatment. The parties stipulated that Graham sustained a compensable injury to his left knee on July 25, 2014. They also stipulated that Graham's average weekly wage was $713.63 and that Prairie Farms had paid Graham temporary disability payments and permanent partial disability benefits.

¶ 8. Following the hearing and a review of the medical records and testimony, the AJ found that Graham had (1) suffered a 50% industrial loss of use of the left knee and (2) subsequently suffered a compensable back injury arising out of the 2014 work-related knee injury. The AJ further found that Graham was entitled to all reasonable and necessary medical treatment for his back injury as well as temporary indemnity benefits. Prairie Farms appealed the decision to the full Workers' Compensation Commission, which unanimously adopted the AJ's findings and affirmed her judgment. Prairie Farms now appeals the Commission's decision.

STANDARD OF REVIEW

¶ 9. "This Court employs a substantial-evidence standard of review to resolve a workers' compensation case ...." Forrest Gen. Hosp. v. Humphrey , 136 So.3d 468, 471 (¶ 14) (Miss. Ct. App. 2014). "[H]owever, the standard of review is de novo when the issue is one of law and not of fact." Id. "[R]eversal is proper where the Commission has misapprehended the controlling legal principles, as the standard of review in that event is de novo." Id. But "[a]bsent an error of law, we must affirm the Commission's decision if there is substantial evidence to support the Commission's decision." Id.

¶ 10. "In a workers' compensation case, the Commission is the trier and finder of facts." Id. "When the Commission accepts the findings and conclusions of the administrative judge, this Court reviews those findings and conclusions as those of the Commission." Pruitt v. Howard Indus. Inc ., 232 So.3d 822, 825 (¶ 7) (Miss. Ct. App. 2017). "If the Commission's order is supported by substantial evidence, this Court is bound by the Commission's determination, even if the evidence would convince us otherwise if we were the fact-finder." Forrest Gen. Hosp. , 136 So.3d at 471 (¶ 14). "Substantial evidence requires more than a 'mere scintilla' of evidence, but it does not rise to the level of 'a preponderance of the evidence.' " Harper ex rel. Harper v. Banks, Finley, White & Co. of Miss. P.C. , 167 So.3d 1155, 1162 (¶ 17) (Miss. 2015) (citation omitted). "Because the Commission serves as [the] ultimate fact-finder and judge of the credibility of witnesses, we may not reweigh the evidence that was before the Commission." Pruitt , 232 So.3d at 825 (¶ 7) (internal quotation marks omitted).

DISCUSSION

¶ 11. Prairie Farms argues that the Commission's decision in regard to both Graham's knee and back was not supported by substantial credible evidence. We examine each argument in turn.

I. Industrial Loss to the Left Lower Extremity

¶ 12. Regarding Graham's knee, Prairie Farms argues that the Commission's finding that Graham sustained a 50% loss of industrial use of his left lower extremity was against the substantial weight of the evidence. For support, Prairie Farms points to the fact that Dr. Salloum assigned a 10% impairment rating to Graham's left knee. Prairie Farms also points out that Ty Pennington, a vocation counselor, evaluated Graham, produced a report, and testified at the hearing regarding Graham's employment possibilities. Pennington opined that Graham could obtain entry level wages, being in a range of $8.00 to $11.00 dollars per hour and that there were positions available for which he qualified.

¶ 13. In response to Prairie Farms' argument that the Commission's industrial-loss finding was unsupported by substantial evidence, we first note that "industrial loss" is not synonymous with "functional loss" (the impairment rating). "Functional loss is the same as medical disability and is concerned only with the physical impairment to the scheduled member[,]" and "disregards loss of ability to work." Howard Indus. Inc. v. Robbins , 176 So.3d 113, 117 (¶¶ 19-20) (Miss. Ct. App. 2015). Industrial loss contemplates "whether a loss of wage-earning capacity has occurred." Id. at 115 (¶ 1). "[A]n injury that renders a worker unable to continue in the position held at the time of injury creates a rebuttable presumption of total industrial loss of the member"; however, "this presumption is subject to other proof of the claimant's ability to earn the same wages he received at the time of injury." Id.

¶ 14. Here, it is undisputed that Graham was unable to continue in the specific position he held with Prairie Farms at the time of his injury. Upon our review of the record, the evidence before the Commission showed that both Dr. Vohra and Dr. Salloum agreed that Graham was restricted from lifting more than forty pounds. The evidence also demonstrates that Prairie Farms advised Graham that he had been permanently placed on light duty, and that they did not have any light-duty positions; as such, he was terminated that same day. There was also evidence showing that Graham participated actively with the WIN job center, was registered with the Mississippi Vocational Rehabilitation Agency, and had applied for numerous positions after his termination, but was unable to secure employment. Notably, the parties stipulated that Graham's pre-injury average weekly wage was $713.63, and the evidence demonstrated Graham's post-injury wage-earning capacity was between $8.00 and $11.00 per hour. As such, we hold that substantial evidence supported the Commission's finding that Graham suffered a 50% industrial loss of use to the lower left extremity. Therefore, this issue is without merit.

II. Compensable Back Injury

¶ 15. Prairie Farms states the Commission also erred by finding that Graham had sustained a compensable back injury arising out of his work-related knee injury. Specifically, Prairie Farms argues the evidence supports a finding that Graham's back problems were related to a preexisting, independent medical issue and not a result of the work injury from July 25, 2014. For support, Prairie Farms points to evidence that Graham had back surgery before he injured his knee, underwent back-related pain management, had been diagnosed with degenerative disc disease, and had been restricted from lifting more than thirty-five pounds since 2007. Prairie Farms also argues that Graham's testimony and medical records presented conflicting time frames regarding his fall.

¶ 16. "Under workers' compensation law, the claimant has the burden of proof in showing the causal connection between the claimant's employment and the resulting disabling condition." Tate v. Int'l Paper Co ., 194 So.3d 136, 139 (¶ 13) (Miss. Ct. App. 2015) (quoting Clark v. Spherion Corp ., 11 So.3d 774, 777 (¶ 15) (Miss. Ct. App. 2009) ). "Unless common knowledge suffices, medical evidence must prove not only the existence of a disability but also its causal connection to the employment." Id. at 138-39 (¶ 13) (quoting Franks v. Foam Craft , 929 So.2d 350, 353 (¶ 13) (Miss. Ct. App. 2006) ).

¶ 17. It is clear from the medical records and medical testimony contained in the record that Graham experienced back pain and other back-related issues prior to the work-related knee injury and subsequent fall when he injured his back. However, the Commission properly acknowledged that "[w]hen the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant's own intentional conduct." BellSouth Telecomms. Inc. v. Harris , 174 So.3d 909, 912 (¶ 15) (Miss. Ct. App. 2015). Additionally, "[a]n injury arises out of and in the course of employment even if it amounts to aggravation or exacerbation of a pre[ ]existing condition." Miller v. Johnson Controls , 138 So.3d 248, 254 (¶ 28) (Miss. Ct. App. 2014).

¶ 18. In this case, Dr. Vohra opined that Graham's back injury and pain were not caused by or related to his knee injury, and Dr. Kimber opined that Graham's back problems were causally related to the knee injury. "[W]henever the expert evidence is conflicting, the reviewing court will affirm the Commission whether the award is for or against the claimant." Crittenden v. Kellogg Brown & Root LLC , 228 So.3d 848, 853 (¶ 10) (Miss. Ct. App. 2017) (quoting Raytheon Aerospace Support Servs. v. Miller , 861 So.2d 330, 336 (¶ 13) (Miss. 2003) ). Again, "the Commission serves as ultimate fact-finder and judge of the credibility of witnesses," and this Court "may not reweigh the evidence that was before the Commission." Pruitt , 232 So.3d at 825 (¶ 7).

¶ 19. Here, the Commission's finding was supported by substantial credible evidence. The parties had stipulated that Graham's knee injury arose out of the course of his employment. The Commission found Graham's testimony was credible when he testified that he fell at home due to his knee buckling, his back popped, and he immediately experienced back pain. The Commission discussed the fact that Dr. Salloum's medical notes from March 24, 2015, indicated that Graham was falling due to his knee buckling; and on March 27, 2015, Dr. Salloum wrote that Graham was having back problems. The Commission then noted that these medical notes were all after Graham's fall in March 2015. We also note that the record does not show any testimony of back pain or evidence of back-related medical appointments for eighteen months prior to his fall. Finally, the Commission noted that Dr. Kimber, a back specialist, believed Graham's back pain was aggravated by and causally related to his knee injury. Because the Commission's findings were supported by substantial credible evidence, we affirm.

¶ 20. AFFIRMED.

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


source: Caselaw Access Project

author: CARLTON, J., FOR THE COURT:

license: Public Domain

text:
    Roderick O. TURNER, Appellant v. Pelicia HALL, Ron King, Pamela Robinson, Tirah Miton, Warden Banks and Raniece Matthews, Appellees
    NO. 2017-CP-00800-COA
    Court of Appeals of Mississippi.
    July 17, 2018
    ATTORNEY FOR APPELLANT: RODERICK O. TURNER (PRO SE)
    ATTORNEY FOR APPELLEES: DARRELL CLAYTON BAUGHN, Jackson.
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. Roderick O. Turner was an inmate in the custody of the Mississippi Department of Corrections (MDOC), confined at the Central Mississippi Correctional Facility. The MDOC revoked 180 days of Turner's earned time after he was caught with contraband in violation of prison rules. Turner filed a complaint for judicial review in Rankin County Circuit Court claiming that the MDOC illegally revoked the 180 days of his earned time. The circuit court dismissed Turner's complaint as untimely.

¶ 2. On appeal, Turner asserts that the MDOC unlawfully revoked his earned time and thus his release date was illegally postponed. He further asserts that the circuit court erred in dismissing his complaint as untimely. A controversy no longer exists in this case, however, because Turner has been released on probation during the pendency of this appeal. We therefore dismiss his appeal as moot.

FACTS AND PROCEDURAL HISTORY

¶ 3. In August 2011, Turner's post-release supervision relating to a prior robbery conviction was revoked, and Turner was sentenced to serve five years in the custody of the MDOC. Less than a year later, on April 25, 2012, Turner was convicted of possession of a controlled substance in a prison institution. He was sentenced to serve three years, and then four years on post-release supervision.

¶ 4. On December 2, 2016, Turner, while incarcerated, was found with a cell phone and a charger and received a Rule Violation Report (RVR). After a hearing, Turner was found guilty. By an MDOC order dated December 8, 2016, Turner lost 180 days of earned time. Turner appealed through the Administrative Remedy Program (ARP), filing a "Request for Administrative Remedy" on January 30, 2017. Turner contended that his tentative release date of March 17, 2017, had been illegally altered when the 180 days' revocation of earned time under the RVR was imposed, changing his tentative release date to September 14, 2017.

¶ 5. The ARP responded on February 8, 2017, notifying Turner that a completed RVR was not attached and requiring that Turner return the notification, along with the RVR he wished to appeal. The record contains no response from Turner to this notification. On March 21, 2017, the ARP committee rejected Turner's appeal of his RVR as untimely. Turner responded with a letter to the ARP committee, received March 28, 2017, in which he re-stated his grievance. By a letter dated March 31, 2017, the ARP committee acknowledged receipt of Turner's March 28, 2017 letter-request. The ARP committee's letter also explained that the ARP committee previously rejected Turner's request regarding the same issue and informed Turner that "because this matter has already been rejected, this particular request is being returned to you and will not be processed."

¶ 6. Turner brought a complaint for judicial review in the Rankin County Circuit Court concerning the ARP's decision, serving the complaint by mail on May 4, 2017. The Rankin County Circuit Clerk filed Turner's complaint on May 18, 2017.

¶ 7. The circuit court dismissed Turner's complaint, finding that it was untimely filed and thus the court lacked jurisdiction over the matter. The circuit court found that Turner's last "identified attempt to address the issue of punishment [in the RVR] was rejected by MDOC on March 31, 2017." As such, the circuit court held:

After the Court being otherwise fully advised in the premises, the Court finds the complaint was untimely filed, and it lacks jurisdiction. Moore v. Mississippi Dept. of Corrections , 936 So.2d 941 (Miss. Ct. App. 2005). Accordingly, the Court further finds that the complaint and this cause should be dismissed.

The circuit court's judgment of dismissal was entered May 24, 2017.

¶ 8. Turner appealed the circuit court's decision on June 12, 2017, and his appellant's brief was filed with the Mississippi Supreme Court Clerk on that date.

¶ 9. The record contains the affidavit of Kendra Michael of the MDOC's legal department, who, as records custodian, submitted the probation and release records relating to Turner. These records show that on September 14, 2017, Turner was released from MDOC custody on four years' probation and was transported to a police department in St. Louis, Missouri. The St. Louis police department dismissed its charges against him. The record further reflects that Turner returned to Mississippi in October 2017. He is currently on probation, meeting with his probation officer on a monthly basis. Turner's appellant's brief (which he submitted with his notice of appeal on June 12, 2017) was filed on his behalf on November 2, 2017.

DISCUSSION

¶ 10. When Turner filed his notice of appeal, there were issues to address. In particular, Turner asserted that his tentative release date was illegally postponed because the MDOC unlawfully revoked 180 days of his earned time, and that the circuit court erred in dismissing his complaint for judicial review as untimely. However, Turner is now released on probation; thus there is no controversy for our review. His appeal is therefore moot. See Hunt v. Miss. Dep't of Corr. , 217 So.3d 789, 791 (¶ 6) (Miss. Ct. App. 2017) (dismissing appeal as moot where movant claimed his tentative release date had been illegally postponed due to revocation of earned time and was released on probation during the pendency of the appeal); see also Williams v. State , 228 So.3d 381, 382 (¶ 4) (Miss. Ct. App. 2017) (dismissing appeal as moot where inmate was released on post-release supervision during pendency of appeal). Now that Turner has been released, he cannot show a judgment "in his favor would be of any practical benefit to him."

Williams , 228 So.3d at 382 (¶ 4). We therefore dismiss his appeal as moot. Id. ; Hunt , 217 So.3d at 791 (¶ 6) ; Fails v. Jefferson Davis Cty. Pub. Sch. Bd. , 95 So.3d 1223, 1225 (¶ 10) (Miss. 2012) ("A case is moot so long as a judgment on the merits, if rendered, would be of no practical benefit to the plaintiff or detriment to the defendant.").

¶ 11. APPEAL DISMISSED.

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


author: TINDELL, J., FOR THE COURT:

text:
    Rose COX, Appellant v. MEMORIAL HOSPITAL AT GULFPORT, Appellee
    NO. 2017-WC-01394-COA
    Court of Appeals of Mississippi.
    July 24, 2018 Rehearing Denied October 9, 2018
    ATTORNEYS FOR APPELLANT: CAROLINE JANE SCOTT, ROGEN K. CHHABRA, JACKSON
    ATTORNEY FOR APPELLEE: RONALD T. RUSSELL
    BEFORE IRVING, P.J., WILSON AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. Following a work-related compensable injury, Rose Cox filed a claim seeking permanent-partial disability benefits. After the administrative judge (AJ) denied Cox's claim, she appealed to the Mississippi Workers' Compensation Commission (Commission). The Commission affirmed the AJ's findings, and Cox then appealed to this Court. Finding no error, we affirm the Commission's judgment.

FACTS

¶ 2. At the time of her injury, Cox had been employed for two years as a distribution technician at Memorial Hospital (Memorial) in Gulfport, Mississippi. On May 8, 2014, Cox was leaving work and walking to the employee parking lot when a vehicle struck her. The collision injured Cox's legs and pelvis. Dr. Inez Kelleher, an orthopedic surgeon affiliated with Memorial, performed surgery on Cox. Following surgery, Cox underwent inpatient-rehabilitation treatment at Memorial. In addition to Dr. Kelleher, Cox received treatment from Dr. Lee Voulters, a neurologist who oversaw her rehabilitation.

¶ 3. At the hearing, the only medical evidence Cox submitted to the AJ consisted of the following: (1) Dr. Kelleher's work-release form, (2) Dr. Voulters's final report, and (3) Dr. Voulters's letter assigning Cox a permanent partial impairment (PPI) rating. The March 3, 2015 work release from Dr. Kelleher released Cox to return to work without any restrictions. Six days later, on March 9, 2015, Dr. Voulters found that Cox had reached maximum medical improvement (MMI). Dr. Voulters's final report stated that Cox had recovered well from her injury and achieved a functional status comparable to her pre-injury baseline level. Dr. Voulters opined that Cox should be able to resume her pre-injury position. Dr. Voulters further noted that Cox was able to squat well and ambulate without any assistive device. The only restrictions Dr. Voulters assigned Cox were no crawling or activities on her knees. On April 2, 2015, Dr. Voulters signed a letter assigning Cox a PPI of three percent for her body as a whole.

¶ 4. After Dr. Voulters placed her on MMI, Cox returned to her position at Memorial on April 14, 2015, and she performed the same tasks as she had before her injury. While Cox initially earned the same hourly wage rate she had previously earned, she eventually received a wage increase based upon a good evaluation from her supervisor at the end of 2015. At the hearing on October 11, 2016, Cox testified that, since returning to work in April 2015, she had neither taken time off nor sought additional treatment related to her injury. She further testified that she did not need her cane to assist her at work and had never used a walker at work. Although she sometimes rested when her legs hurt and used a cart to help her distribute medical supplies, Cox testified that she was able to timely complete her assigned tasks and had not received any work-related complaints.

¶ 5. Cox's supervisor, Mary Bradley, confirmed that Cox returned to the same position she held prior to the accident and performed the same tasks. According to Bradley, several carts were available to help all the employees in Cox's department distribute hospital supplies, and she stated that she did not notice Cox rely on the carts more often following her injury. Bradley testified that she observed Cox for several weeks upon Cox's return to evaluate Cox's post-injury capabilities. Bradley stated that Cox never failed to perform any assigned tasks, never expressed concerns about her work assignments, never complained about injury-related issues, and never missed work due to such issues. Based upon her observations, Bradley concluded that Cox could satisfactorily perform all her job requirements. Bradley further testified that Cox had not received any reprimands since returning to work. Bradley instead characterized Cox as a valuable and knowledgeable employee whom she would "hire ... again today if [Cox] reapplied tomorrow ...."

¶ 6. Cathy Wood, who served as Memorial's vice president of human resources, also testified that Cox returned to work full time after her injury without any restrictions. Wood confirmed that Cox performed the same pre-injury tasks at the same hourly wage rate and had received no work-related complaints since returning from her injury. Like Bradley, Wood testified that Cox received a wage increase after returning to work based on her favorable performance evaluation.

¶ 7. Based on the evidence and testimony presented at the hearing, the AJ found Cox suffered no loss in wage-earning capacity. As a result, the AJ denied Cox's claim for permanent-partial disability benefits. Following Cox's appeal, the full Commission affirmed the AJ's findings. Aggrieved, Cox timely appeals to this Court.

DISCUSSION

¶ 8. Cox concedes her post-injury return to work at the same or greater wage rate created a presumption of no loss in wage-earning capacity. However, Cox argues she presented sufficient evidence to rebut the presumption. She therefore asserts the Commission erred by affirming the AJ's denial of her claim for permanent-partial disability benefits.

¶ 9. "It is the claimant's burden to establish her entitlement to compensation, and the question of the existence and extent of any permanent disability arising out of a work-related injury is a question of fact for the Commission to determine based on the evidence before it." Sampson v. MTD Prods. , 225 So.3d 541, 543-44 (¶ 9) (Miss. Ct. App. 2017) (quoting Robinette v. Henry I. Siegal Co. , 801 So.2d 739, 743 (¶ 7) (Miss. Ct. App. 2000) ). This Court applies "a substantial-evidence standard to review a workers' compensation case ...." Leflore Cty. Bd. of Sup'rs v. Golden , 169 So.3d 882, 885 (¶ 8) (Miss. Ct. App. 2014). The Commission constitutes "the trier and finder of facts." Id. When substantial evidence supports the Commission's decision, we remain bound by the Commission's findings "even though the evidence would convince us otherwise, were we the factfinder." Id. However, we review questions of law de novo. Id.

¶ 10. In the present case, Cox's medical evidence supported the Commission's finding that Cox failed to prove a permanent impairment. The medical evidence established that Dr. Kelleher released Cox on March 3, 2015, to return to work without any restrictions. Dr. Voulters, who oversaw Cox's rehabilitation, also concluded in his March 9, 2015 report that Cox "ha[d] made a good recovery" and could return to her pre-injury position. Dr. Voulters found Cox had reached MMI, and on April 2, 2015, he assigned Cox a three-percent impairment to her body as a whole. The only restrictions Dr. Voulters placed on Cox were no crawling or activities on her knees. However, neither party offered evidence to show that Cox's job responsibilities ever required such tasks.

¶ 11. In addition, Cox's own testimony failed to support her contention that she sustained a permanent impairment and suffered a loss of wage-earning capacity. Cox returned to work full time on April 14, 2015, and she resumed her pre-injury position as a distribution technician. Cox performed the same tasks and initially received the same hourly wage rate that she had prior to her injury. Then, following a favorable performance evaluation from her supervisor at the end of 2015, Cox received an increase in her hourly wage rate. At the time of the hearing on October 11, 2016, Cox still earned this increased wage rate and had received no work reprimands or complaints. In addition, Cox testified that, after reaching MMI and returning to work, she never took time off or sought further medical treatment due to her injuries. Furthermore, Cox stated that she had been able to timely complete her work duties without the assistance of a cane or walker.

¶ 12. Upon review, we find substantial evidence supported the Commission's decision to affirm the denial of Cox's claim for permanent-partial disability benefits. We therefore conclude this argument lacks merit.

CONCLUSION

¶ 13. Because substantial evidence supported the Commission's decision to uphold the denial of Cox's benefits claim, we find no error. We therefore affirm the Commission's judgment.

¶ 14. AFFIRMED.

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

      See Hudspeth Reg'l Ctr. v. Mitchell , 202 So.3d 609, 610 (¶ 7) (Miss. 2016) (recognizing that a rebuttable presumption of no loss of wage-earning capacity arises when an injured employee returns to work and receives the same or higher rate of pay).


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

text:
    Eric DARRELL Lott a/k/a Hub Cap a/k/a Eric Lott, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00055-COA
    Court of Appeals of Mississippi.
    July 24, 2018
    ATTORNEY FOR APPELLANT: TAMEKIA ROCHELLE GOLIDAY
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, JACKSON
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

PROCEDURAL HISTORY

¶ 1. Eric Lott was indicted for the murder of Adrian Eley. A jury in the Jefferson Davis County Circuit Court convicted Lott of manslaughter. Lott was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. The trial judge denied Lott's posttrial motions. Lott now appeals, asserting the following issues: (1) his trial counsel provided ineffective assistance; (2) one of the State's witnesses was not qualified to testify under Mississippi Rule of Evidence 702 ; and (3) the trial judge failed to be impartial by improperly assisting the State during the trial. Finding no error, we affirm.

FACTS

¶ 2. Just after midnight on June 9, 2015, Lott admittedly shot Eley while the two were arguing in the parking lot of the Palmetto Apartments in Jefferson Davis County, Mississippi. Eley was transported to a local hospital but died from multiple gunshot wounds. According to Lott, Eley had been threatening him for several weeks, accusing Lott of having an affair with Eley's longterm girlfriend, Konswaylo Durr.

¶ 3. Durr testified that she and Eley had been fighting in the days leading up to his death. A few nights prior to June 9, Durr and Lott had been at a local gas station when Eley arrived. According to Durr, Eley accused the two of having an affair. Durr said Lott asked Eley to go outside and discuss the situation. The situation deteriorated such that Durr retrieved Lott's gun from his car and shot Eley's car. Durr testified that she did so to scare Eley and to retaliate for him stealing her belongings. Eley left the area, and Durr went home.

¶ 4. The night before Eley's death, Durr testified that she became angry with Eley and asked him to leave their house. Durr had learned that Eley was going to have a child with another woman. At one point Eley tried to sneak back in the house by removing a bedroom air-conditioner unit, but Durr stabbed his hand to prevent his entrance. Durr gave Eley a towel and water for his injured hand, then she left their house. Ultimately, Eley followed Durr to the Palmetto Apartments, where Durr happened to see Lott. She pulled her car beside Lott's car, and the two began talking. According to Durr, Eley walked toward them and began yelling at Durr and Lott, accusing them of having an affair. Eley also grabbed Lott's cell phone. At some point, Eley and Lott were standing on the sidewalk outside the apartment complex talking to Durr, who was still in her car. Durr testified that both she and Lott were explaining to Eley that they were only friends. Durr stated, "[Lott] was mad and slammed in front of my car, saying, 'Man, keep my name out of your mouth. I told you I'm not f---ing your b----.' " Durr said Eley replied, "Well, man, I'm just asking." Durr testified Lott walked toward his car and then walked back with his arm behind his back. Durr stated Eley started running, then Lott began firing at Eley. Durr said Eley was unarmed. Durr further testified that she never heard Eley threaten Lott. Durr was unaware that Eley had previously confronted Lott about their relationship.

¶ 5. Lott remembered the events leading up to Eley's death differently. He testified that Eley had been harassing him for several weeks about his relationship with Durr. Lott stated he told Investigator Charles Johnson with the Jefferson Davis County Sheriff's Department that Eley was threatening him. Investigator Johnson testified that Lott told him someone was threatening him, but Lott did not give him a specific name, and without a specific name, he could not help Lott. Lott testified that the day before Eley's death, Eley came to Lott's parent's house looking for him. According to Lott, Eley thought Durr was with him. Lott stated that he wanted to resolve the situation. When Eley arrived, Lott testified that they did discuss the situation, with Lott reiterating that he and Durr were just friends. Lott said he felt frustrated and cut the conversation short. Both men left the house, and Lott drove to the apartment complex. Lott stated that he then received a text from Durr, indicating that Eley said Lott was afraid to come over.

¶ 6. When he saw Eley at the apartment complex on the night of June 9, Lott said Eley did grab his phone but also hit him in the chest. Lott stated that he was concerned for his safety since Eley weighed about fifty pounds more than he did and was known for his aggressive behavior. Lott further testified that Eley kept shoving him and yelling at him. Lott attempted to get in his car and leave, but Eley followed him. Lott grabbed his gun, which had been laying on the driver's seat, then shot Eley at least six or seven times. He fled the scene, claiming that he did not know if he had shot Eley.

¶ 7. Lott later turned himself in to the Jefferson Davis County Sheriff's Department, where he was read his Miranda rights. He was then interviewed by Investigator Jeff Toler, Investigator Johnson, and Master Sergeant Leo Clemons of the Mississippi Bureau of Investigations.

¶ 8. Investigator Toler testified that Lott admitted to shooting Eley, but that he did so in self-defense. Master Sergeant Clemons testified that Lott admitted to shooting Eley. Master Sergeant Clemons stated Lott told him that Eley was not armed at the time of the shooting. Master Sergeant Clemons further stated Lott did not mention that Eley had previously threatened him with bodily harm, only that Eley had accused him of having an affair with Durr. Lott told the police that he believed Eley and Durr had concocted a plot against him.

¶ 9. During questioning, Lott stated that Eley was standing close to him and yelling at his face. Lott said he panicked and tried to walk away, but Eley followed. Master Sergeant Clemons then asked Lott what happened while Lott was reaching for his gun. Lott replied, "When [Eley] seen me reach for my [gun], you know what I'm saying, it was too late.... I'm threatened now. I'm scared."

¶ 10. Dr. John Davis, deputy chief medical examiner for the State of Mississippi, performed the autopsy on Eley. Dr. Davis stated that Eley received four gunshot wounds. One gunshot wound was in Eley's upper chest. Dr. Davis noted the bullet entered Eley's back, but he could not locate the exit wound on Eley's chest, most likely due to surgical intervention prior to Eley's death. Eley had two gunshot wounds to his left leg. One entered his left buttock and exited through the outside of Eley's left thigh. The other bullet entered the inside of Eley's left thigh and exited on the back of his left thigh. Another bullet entered Eley's left upper arm from the back, but Dr. Davis was unable to locate the exit wound. Dr. Davis also testified that he could not determine the sequence of the gunshot wounds.

¶ 11. Dr. William Bolls, a general surgeon, also testified. Dr. Bolls operated on Eley when he was brought to the emergency room. Dr. Bolls testified to the location of Eley's gunshot wounds based upon his personal knowledge. One gunshot wound entered Eley's upper back and exited near his right nipple. Eley had an entrance wound to his left buttocks with a corresponding exit wound on his inner left thigh, and an entrance wound to his left upper thigh. Eley also had an entrance wound to the back of his left upper arm and an exit wound near the elbow.

DISCUSSION

I. Ineffective Assistance of Counsel

¶ 12. In his first issue on appeal, Lott argues that his trial counsel was ineffective for failing to request a particular self-defense jury instruction. Lott relies upon Manuel v. State , 667 So.2d 590 (Miss. 1995), to support his claim that his trial counsel erred by failing to request a self-defense instruction indicating that he was afraid of being seriously injured by a larger, though unarmed, victim. Lott contends the failure to do so left him with no jury instruction on his theory of defense.

¶ 13. We first note "that, generally, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings." Dartez v. State , 177 So.3d 420, 422-23 (¶ 18) (Miss. 2015) (citing Archer v. State , 986 So.2d 951, 955 (¶ 15) (Miss. 2008) ). The supreme court has explained that

[a]n appellate court is limited to the trial-court record in its review of the claim(s), and there may be instances in which insufficient evidence and/or information exists within the record to address the claim adequately. In such a case, the appropriate procedure is to deny relief, preserving the defendant's right to argue the issue through a petition for post-conviction relief (PCR).

Id. at 423 (¶ 18) (citation omitted). However, an ineffective-assistance-of-counsel claim can be addressed on direct appeal when "(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge." Johnson v. State , 196 So.3d 973, 975 (¶ 7) (Miss. Ct. App. 2015). In the case before us, both parties did not stipulate that the record is adequate for this Court to make a finding on direct appeal. Thus, the proper inquiry is whether the record affirmatively shows that Lott was denied effective assistance of counsel of constitutional dimensions. See M.R.A.P. 22(b).

¶ 14. To prove ineffective assistance of counsel, Lott must show that: (1) his counsel's performance was deficient, and (2) this deficiency 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 a trial counsel's performance falls within the range of reasonable professional assistance. Id. at 689, 104 S.Ct. 2052. To overcome this presumption, "[t]he defendant 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. We look "at the totality of circumstances to determine whether counsel's efforts were both deficient and prejudicial." Howell v. State , 163 So.3d 240, 259 (¶ 49) (Miss. 2014).

¶ 15. In Manuel , the defendant, Nancy Manuel, stabbed and killed her live-in boyfriend, Wendell Norris. Manuel , 667 So.2d at 590. During trial, her counsel requested the following instruction be given to the jury:

The Court instructs the jury that if the deceased, Wendell Norris, was a much larger and stronger man than the defendant, Nancy Manuel, so much so that the Defendant was wholly and absolutely incapable of coping with him in a physical combat, and was liable to receive serious and great bodily injuries at the hands of the deceased in the event that they became engaged in combat, then the Defendant was justified in using a deadly weapon to protect [herself] from an unjustifiable and deadly attack of the deceased even though the deceased was wholly unarmed, and the Defendant was in no danger from the deceased except such as might be inflicted by the deceased with his hands or feet.

Id. at 591.

¶ 16. The trial judge found that the instruction was generally correct, but refused to give the instruction because it was peremptory in nature. Id. at 593. The supreme court agreed with the trial judge, but reversed because the trial judge had a duty to cure the defective instruction since Manuel had not offered any other instruction presenting her theory of self-defense. Id. The court stated, "Where the instructions are in improper form and are the only ones embodying a legally correct theory of the defendant's defense, it is the duty of the trial court to see that the instructions are placed in proper form for submission to the jury." Id. The supreme court further stated that while a defendant "is entitled to have an instruction on the theory of her defense, that instruction should not single out certain parts of the evidence to the point that it amounts to a comment on the weight of the evidence." Id. at 592.

¶ 17. The record does not contain a transcript of the jury instruction conference between the trial judge and trial counsel. But the record indicates that Lott's trial counsel requested and was granted two instructions regarding self-defense: jury instructions D-12 and D-14. Jury instruction D-12 (Instruction 10) stated:

The Court instructs the jury that in order to justify the plea of self-defense in this case, there must be something shown in the conduct of Adrian Eley, the victim, at or about the time of his killing, indicating a present intention to kill Eric Lott or to do him some great personal injury, and imminent danger of such intention being accomplished.
Mere fears or beliefs of Eric Lott are insufficient. The danger to Eric Lott from Adrian Eley must have been such as to lead a reasonable person under similar circumstances to reasonably believe that some infliction of serious bodily harm was necessary to prevent Adrian Eley from then and there killing Eric Lott or doing him some great bodily harm.

Jury instruction D-14 (Instruction 11) stated:

The Court instructs the jury that to make an assault justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the defendant acts.

¶ 18. Lott has failed to show any prejudice by his counsel's decision not to request an instruction similar to the one in Manuel . Lott's theory of self-defense was presented to the jury; thus, Lott cannot show that he was denied effective assistance of counsel of constitutional dimensions. This issue is without merit.

II. Testimony of Dr. Bolls

¶ 19. In his next issue on appeal, Lott argues that the trial judge erred in allowing Dr. Bolls, who was not tendered as an expert, to testify as an expert in pathology without satisfying the requirements of Rule 702. However, Lott failed to object to Dr. Bolls's testimony pursuant to Rule 702. Rather, when the State asked Dr. Bolls if he had reviewed the autopsy report, Lott objected that Dr. Bolls "did not perform the autopsy report. This would be secondhand or hearsay information that he received from some other report that he read and did not prepare."

¶ 20. "A trial judge cannot be put in error on a matter which was not presented to him for decision." Holmes v. State , 798 So.2d 533, 537 (¶ 16) (Miss. 2001). Therefore, Lott waived the right to appeal this issue. Haddox v. State , 636 So.2d 1229, 1240 (Miss. 1994). Lott instead urges us to review this issue for plain error. We only employ the plain error doctrine in situations when "a defendant's substantive or fundamental rights are affected." Flora v. State , 925 So.2d 797, 811 (¶ 42) (Miss. 2006). "Plain-error review is properly utilized for 'correcting obvious instances of injustice or misapplied law.' " Smith v. State , 986 So.2d 290, 294 (¶ 10) (Miss. 2008) (emphasis added). The Mississippi Supreme Court has explained that, in order to "determine if plain error has occurred, we must determine 'if the trial court has deviated from a legal rule, whether that error is plain, clear[,] or obvious, and whether the error has prejudiced the outcome of the trial.' " Neal v. State , 15 So.3d 388, 403 (¶ 32) (Miss. 2009) (quoting McGee v. State , 953 So.2d 211, 215 (¶ 8) (Miss. 2007) ).

¶ 21. Dr. Bolls first testified regarding his personal knowledge of Eley's wounds by describing each gunshot wound. Lott did not object to this particular testimony. Later, the State asked Dr. Bolls if he had reviewed Eley's autopsy report. Lott's trial counsel objected as noted above. The trial judge asked Dr. Bolls whether he "saw and examined the entry and exit wounds on Mr. Eley." Dr. Bolls replied affirmatively. The trial judge then asked him, "You later looked at the autopsy report?" Dr. Bolls replied affirmatively. The trial judge asked, "Did that report indicate the same wounds that you noted when you were treating [Eley]?" Dr. Bolls replied that it did. The trial judge then allowed Dr. Bolls to answer the State's questions.

¶ 22. Dr. Bolls generally agreed with the autopsy's findings, except for the gunshot wound to Eley's left thigh. On cross examination, Lott asked Dr. Bolls about this particular wound. The autopsy report had indicated that the wound to Eley's inner left thigh was an entrance wound and the bullet traveled from front to back and downward, exiting his outer left thigh. Dr. Bolls disagreed, stating, "It's not what I observed." Rather, Dr. Bolls testified that the wound to Eley's inner left thigh was an exit wound and the entrance wound was at the left buttocks. He later stated that the wound to Eley's outer left thigh was an entrance wound with no corresponding exit wound.

¶ 23. We cannot find plain error in this instance. The trial judge did not deviate from a known legal rule. Dr. Bolls's testimony was an explanation of his own observations from treating Eley. Dr. Bolls simply disagreed with one of the findings of the autopsy report based upon his treatment of Eley. Lott further argues that he was prejudiced by Dr. Bolls's testimony because the implication is that Lott shot Eley in the back while Eley was fleeing. However, Dr. Bolls never testified that Eley was fleeing when he was shot-and neither did Dr. Davis. This issue is without merit.

III. Partiality of Trial Judge

¶ 24. In his final issue on appeal, Lott argues that the trial judge showed partiality to the State by "aggressively assisting" it during trial. However, Lott failed to make timely objections to the trial judge's instances of purported partiality. In order for this Court to review the purported partiality, Lott "had an obligation to make a contemporaneous objection to [the] inappropriate behavior and lodge a proper objection at the time." Golden v. State , 860 So.2d 820, 822 (¶ 4) (Miss. Ct. App. 2003) (citing Powell v. Ayars , 792 So.2d 240, 248 (¶ 29) (Miss. 2001) ). Mississippi Rule of Evidence 614(c) specifies that objections to the trial judge's comments should be made either when the disputed comments are made or at the next available opportunity outside the jury's presence. Lott's "failure to raise a timely objection not only denied the opportunity for corrective measures during trial, it also precludes [him] from pursuing the claim on appeal." Id.

¶ 25. Lott urges us to review this issue under plain error because "the conduct of the trial judge, on the entire record, was so reprehensible and prejudicial as to deny a fair trial or due process of law." Jackson Yellow Cab Co. v. Alexander , 246 Miss. 268, 277, 148 So.2d 674, 678 (1963). According to Lott, these instances of partiality by the trial court included coaching the State on how to present Dr. Bolls's testimony; advising the State on deficiencies in its presentation of evidence, including how to cure the deficiencies; and helping the State qualify Dr. Davis.

A. Dr. Bolls's Testimony

¶ 26. During Dr. Bolls's testimony, the trial judge stated that he was confused as to the location of the gunshot wounds and asked one of the attorneys to act as a mannequin in order for Dr. Bolls to explain where he saw the gunshot wounds on Eley. One of the prosecutors for the State volunteered. Lott contends that this action by the trial judge placed more credibility on Dr. Bolls's testimony rather than Dr. Davis's testimony, who was called to testify several witnesses later. We fail to see how this conduct by the trial judge was prejudicial to Lott.

B. Advice on Presentation of Evidence

¶ 27. During the direct examination of Investigator Toler, the State asked him questions about a warrant he had obtained to search Lott's car. The trial judge paused the proceedings and asked the State via bench conference if it was going to mark the search warrant and the accompanying affidavit for identification. After some discussion, the items were admitted for identification. We fail to see any error here.

C. Expert Qualification

¶ 28. Lott argues that the trial judge improperly assisted the State in qualifying Dr. Davis as an expert witness. After the State tendered Dr. Davis as an expert in forensic pathology, the trial judge asked him several questions, such as the status of his license in Mississippi, how many times he had testified as an expert witness, and his board certifications. However, since the decision of whether an expert is qualified is left to the trial judge's discretion, we can find no error. See Burnham v. Stevens , 734 So.2d 256, 268 (¶ 47) (Miss. Ct. App. 1999).

¶ 29. Lott has failed to show that the conduct of the trial judge was so reprehensible and prejudicial as to deny a him a fair trial. This issue is without merit.

¶ 30. AFFIRMED.

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

      Lott was also indicted for aggravated assault upon a bystander who was injured during the shooting. The jury returned a not guilty verdict on this count.

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

      Pursuant to Rule 702, an expert may provide testimony if "qualified ... by knowledge, skill, experience, training, or education ...." M.R.E. 702. Once qualified, the expert may provide testimony if
      (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
      (b) the testimony is based on sufficient facts or data;
      (c) the testimony is the product of reliable principles and methods; and
      (d) the expert has reliably applied the principles and methods to the facts of the case.
      Id.


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

text:
    Thomas Earl GABRIEL a/k/a Thomas Gabriel a/k/a Thomas Earl Gabrielle, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01669-COA
    Court of Appeals of Mississippi.
    July 24, 2018 Rehearing Denied October 9, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: JUSTIN TAYLOR COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART, JACKSON
    BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Thomas Earl Gabriel appeals his conviction of child molestation and argues that the trial court erroneously admitted into evidence his statement to the police. Because we find the statement was neither relevant, nor probative, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2015, Gabriel lived with his wife Ann, Ann's daughter Ashley, and Ashley's three young children. On March 5, 2015, Ashley was changing her son's diaper when her four-year-old daughter Amber indicated that Gabriel had touched her inappropriately. Specifically, Ashley stated she was changing her son's diaper, "when he reached down and grabbed himself." Ashley then heard Amber say, "Eww, he's touching himself the way Pawpaw touches me." Ashley immediately checked Amber's vaginal area and noticed it was "very red," so she took Amber to the hospital for an examination. A physician determined that Amber's symptoms were consistent with sexual molestation.

¶ 3. Investigators with the Warren County Sheriff's Department went to the hospital and interviewed Ashley. Both Ashley and the investigators were aware of Gabriel's prior conviction of child molestation in Texas and his subsequent registration as a sex offender. After leaving the hospital, the investigators went to Gabriel's home. Gabriel's wife Ann had a police scanner and knew law enforcement was on the way to their house. As a result, Gabriel took a shower.

¶ 4. The investigators arrived and saw Gabriel, freshly showered, standing outside. As the investigators approached Gabriel, he turned and placed his hands behind his back. The officers advised Gabriel that he was not under arrest but went ahead and read Gabriel his Miranda rights. Gabriel voluntarily waived his rights and spoke to the officers. He also consented to a search of his home. During the search, Gabriel verbally consented to the seizure of his computer and computer equipment. Before leaving, the officers asked Gabriel if he would be willing to meet officials at the police station in order to give a recorded statement. Gabriel agreed.

¶ 5. Prior to the recorded interview, Gabriel was again advised of his Miranda rights, and he provided a verbal and written waiver of those rights. He also read and signed a list of all items seized from his house during the consensual search.

¶ 6. During the interview, Gabriel denied the allegations Amber made and openly discussed various topics. Specifically, Gabriel discussed his prior conviction of child molestation as well as his sexual activity with his wife, including experimentation with bondage. Gabriel stated he would oftentimes play video games on his computer and would allow Amber to sit on his lap while he played those games. Gabriel further stated that he smokes marijuana and watches adult pornography. He explained that while watching adult pornography, child pornography would occasionally "pop up."

¶ 7. Ashley took Amber to the Child Advocacy Center, where a forensic interview was conducted by Tami Wallgren. During the interview, Amber advised that Gabriel touched her with his hand and finger. When asked to identify on a drawing where Gabriel touched her, Amber circled the "butt" and the "female genitals." Amber indicated that it had happened on more than one occasion and had occurred upstairs on Gabriel's bed. Ms. Wallgren opined that Amber's responses and demeanor were consistent with a child who has been sexually abused.

¶ 8. Gabriel was subsequently arrested and indicted on the charge of Count I, sexual battery, and Count II, child molestation. The indictment was amended to charge Gabriel as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2014).

¶ 9. Prior to trial, Gabriel moved to exclude his recorded interview with the investigators. Following a hearing on the motion, the circuit court denied the motion. Specifically, the circuit court found:

Although [Gabriel] did not confess to the crime with which he is charged, he made many incriminating statements. However, the parties have not presented any case law which says that prejudicial statements made by [Gabriel] should be excluded if [Gabriel] was properly advised of and waived his Miranda rights.

¶ 10. At trial, the recorded interview was admitted into evidence and played for the jury, despite Gabriel's continued objection. It is undisputed that no child pornography was found on Gabriel's computer, and he was not charged with any computer-related or drug-related offenses.

¶ 11. Amber testified at trial that Gabriel "rub[bed] his private on [hers]." She explained that her clothes, including her underwear, were on at the time and that Gabriel did not take off her clothes. Amber further testified that Gabriel did not use his hand, fingers, or any other part of his body to touch her.

¶ 12. Gabriel was convicted of Count II, child molestation, and was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections as a habitual offender pursuant to section 99-19-81. Gabriel was further ordered to register as a sex offender upon his release from incarceration.

¶ 13. Gabriel now appeals and argues the trial court erroneously admitted "[his] statement to [the] police, which contained inadmissible[,] irrelevant[,] and prejudicial evidence."

STANDARD OF REVIEW

¶ 14. "This Court reviews the trial court's decision to admit or exclude evidence under an abuse of discretion standard of review." Smith v. State , 986 So.2d 290, 295 (¶ 12) (Miss. 2008). "A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence." Jefferson v. State , 818 So.2d 1099, 1104 (¶ 6) (Miss. 2002) (quoting Hughes v. State , 735 So. 2d 238, 270 (¶ 134) (Miss. 1999) ). "Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling." Id.

ANALYSIS

¶ 15. "Before evidence is admitted at trial, it must first be relevant." Brown v. State , 825 So.2d 70, 73 (¶ 7) (Miss. Ct. App. 2002) (citing M.R.E. 401 ). Pursuant to Mississippi Rule of Evidence 401, evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the case." Under Mississippi Rule of Evidence 403, relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confus[ion] of the issues, misleading [of] the jury, undue delay, wast[e] [of] time, or needless[ ] present[ation] [of] cumulative evidence."

¶ 16. Here, the trial court acknowledged that Gabriel "made many incriminating statements" that were prejudicial but allowed the prejudicial statements to be admitted into evidence since Gabriel "was properly advised of and waived his Miranda rights." However, such waiver does not negate the rules of evidence. In other words, regardless of such waiver, in order for evidence to be admitted, it must be relevant and probative, as required by Rules 401 and 403 of the Mississippi Rules of Evidence.

¶ 17. Gabriel argues the statements at issue were irrelevant and/or highly prejudicial. We agree. Although Gabriel acknowledged that he watched adult pornography and that child pornography would occasionally "pop up," there was no child pornography found on his computer. Moreover, there is no evidence that Amber saw the pornography, either the adult or the child pornography. While Gabriel stated Amber would sometimes walk in and stand behind him while he was on the computer, there is no evidence in the record to suggest that she actually saw any pornography, nor is there evidence Gabriel showed it to her.

¶ 18. In Wade v. State , 583 So.2d 965, 966 (Miss. 1991), the defendant was convicted of sexual battery. During trial, a bag of pictures found in the defendant's vehicle was admitted into evidence. Id. The pictures showed "nude people displaying themselves in graphic poses, and explicitly engaging in both heterosexual and homosexual acts." Id. On appeal, the court determined that "the trial court erred in allowing the bag of pictures to be introduced into evidence." Id. at 967. The court found that "[b]ecause the children did not see the bag, it was relevant neither to the sexual battery nor to res gestae of the offense." Id. The court further found the pictures were "highly inflammatory" and explained that "[t]he jurors may have concluded that because the defendant collected these pictures, he did, in fact, sexually batter [the child]." Id. The court concluded that the defendant was prejudiced by the admission of the bag of pictures to such extent that their admission constituted reversible error. Id.

¶ 19. Here, as in Wade , Gabriel's statements regarding pornography were highly inflammatory, especially in light of the fact that no child pornography was found on his computer and no pornography in any form was seen by Amber. As in Wade , the jury may have concluded that because Gabriel watches pornography, which may have included child pornography "pop ups," he did, in fact, sexually molest Amber. Yet, the record is clear that Gabriel was not charged with any computer-related offense and not charged with the possession or distribution of child pornography. When asked by defense counsel why he thought the State wanted to talk so much about pornography, Gabriel stated, "[b]ecause it makes me look bad."

¶ 20. We agree with Gabriel. The admitted statements regarding pornography were not relevant under Rule 401 to the charges brought against Gabriel. Moreover, even if these statements were considered to be relevant, the probative value was substantially outweighed by a danger of unfair prejudice, confusion of the issues, or the possibility of misleading the jury.

¶ 21. Further, evidence of Gabriel's sexual activity with his wife, including their experimentation with bondage, was neither relevant nor probative to any issue. Such consensual sexual activity between adults is not illegal. In addition, evidence of whether Gabriel smoked marijuana, was addicted to marijuana, or purchased marijuana was neither relevant nor probative to whether Gabriel molested Amber. The State focused much of its cross-examination on Gabriel's marijuana use. Such evidence was simply not relevant to the issues involved in this case; Gabriel was not charged with any drug-related offense.

¶ 22. The State cites no case that allows for the admission into evidence of a criminal defendant's interview with law enforcement simply because the defendant was read his or her rights under Miranda . Therefore, we find that the trial court abused its discretion in the admission of the full recorded interview; but we recognize that there were parts of the interview that are or may be admissible into evidence. Therefore, we reverse Gabriel's conviction and remand this case for a new trial.

¶ 23. REVERSED AND REMANDED.

LEE, C.J., BARNES, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. IRVING, P.J., AND CARLTON, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      For privacy purposes, we substitute a fictitious name for the minor child.

      The record reflects that Amber refers to Gabriel as "Pawpaw."

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

      The circuit court relied on Ruffin v. State , 992 So.2d 1165 (Miss. 2008), wherein the court found that Miranda rights apply not only to confessions but to any incriminating statements. However, it appears the incriminating statements at issue in Ruffin were related to the charged offenses.


text:
    Jerri COLLINS a/k/a Jerri T. Collins, Appellant v. STATE of Mississippi, Appellee
    No. 2017-CP-00747-COA
    Court of Appeals of Mississippi.
    July 24, 2018
    ATTORNEY FOR APPELLANT: JERRI COLLINS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA M. AINSWORTH, Jackson
    BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Jerri Collins appeals the circuit court's dismissal of his motion for post-conviction collateral relief (PCCR). We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Collins was indicted on Count 1, aggravated assault, and Count 2, armed robbery. He subsequently pleaded guilty to Count 1, aggravated assault, and was sentenced to twenty years, with ten years suspended, leaving ten years to serve in the custody of the Mississippi Department of Corrections, followed by five years of post-release supervision. Collins was ordered to pay a $500 fine and all court costs. As a result of Collins's plea to Count 1, Count 2 was "retired to the files."

¶ 3. Collins filed a motion for PCCR, which the circuit court dismissed. He now appeals and argues: (1) his motion for PCCR is not time-barred, (2) the circuit court did not have a factual basis for the plea, (3) the indictment was insufficient and defective, (4) his sentence is illegal, and (5) he received ineffective assistance of counsel.

STANDARD OF REVIEW

¶ 4. We review a circuit court's denial or dismissal of a PCCR motion for abuse of discretion. Wallace v. State , 180 So.3d 767, 769 (¶ 7) (Miss. Ct. App. 2015). "However, questions of law are reviewed de novo." Id.

ANALYSIS

I. Time-Bar

¶ 5. Collins first argues his motion for PCCR is not time-barred. We agree. Pursuant to Mississippi Code Annotated section 99-39-5(2) (Rev. 2015), in the case of a guilty plea, a motion for PCCR shall be filed "within three (3) years after entry of the judgment of conviction."

¶ 6. Here, Collins pleaded guilty on October 6, 2015. He subsequently filed his motion for PCCR on October 14, 2016, well within the three-year time period set forth in section 99-39-5(2). Accordingly, Collins's motion for PCCR was timely filed.

II. Factual Basis for the Plea

¶ 7. Collins next argues the circuit court failed to fulfill the requirements of Uniform Rule of Circuit and County Court 8.04(A)(3) since it did not ascertain a factual basis to accept his guilty plea. Pursuant to Rule 8.04(A)(3), "[b]efore a [circuit] court may accept a plea of guilty, the court must determine that the plea is voluntary and intelligently made and that there is a factual basis for the plea."

¶ 8. "A guilty plea is voluntarily and intelligently made if the circuit court advised the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea." Britain v. State , 229 So.3d 211, 213 (¶ 9) (Miss. Ct. App. 2017) (internal quotation marks omitted). Here, the plea-hearing transcript shows that Collins was advised of and understood his constitutional rights, the nature of the charge against him, and the consequences of his guilty plea. Thus, Collins's guilty plea was voluntarily and intelligently made.

¶ 9. Additionally, the plea-hearing transcript shows there was a factual basis for the plea. The State explained that Collins, along with three other young men, slipped through the gate at the Point Place Apartments and hid behind a car in the parking lot. When the victim got out of his car, the four young men "rushed" him and demanded that he give them whatever he had. As the victim reached for his belongings, Collins shot the victim in the chest with a .25 caliber pistol. Two of the young men with Collins identified Collins as the shooter. Collins subsequently gave a statement regarding his involvement in the incident and was forthcoming with law enforcement. All four men watched the surveillance video and identified themselves in the video.

¶ 10. Collins agreed with the State's recitation of the facts and advised the circuit court that he was pleading guilty because he was in fact guilty. The circuit court specifically found that Collins's guilty plea was "freely, voluntarily, knowingly, and intelligently entered" and that there was "a factual basis to support the charge against [him]." We agree and find the circuit court's acceptance of Collins's guilty plea was proper and supported by the record. Thus, this issue is without merit.

III. Sufficiency of the Indictment

¶ 11. Collins further argues his indictment is insufficient and defective. The indictment charged Collins as follows:

Count 1
Jerri T. Collins ... on or about the 21st day of December, 2014 ... did unlawfully, willfully, and feloniously, purposely and knowingly cause bodily injury to Zerrick Leavy, a human being, with a deadly weapon, to-wit: a firearm, by shooting the said Zerrick Leavy in the chest with said firearm; without authority of law and not in necessary self defense, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi;
Count 2
Jerri T. Collins ... on or about the 21st day of December, 2014 ... did unlawfully, willfully, and feloniously, take, steal, and carry away or attempt to take, steal, and carry away from the person or presence of Zerrick Leavy, the personal property of Zerrick Leavy, to-wit: money, against the will of the said Zerrick Leavy and without his consent by putting the said Zerrick Leavy in fear of immediate injury to his person by the exhibition of a deadly weapon, to-wit: a pistol, in violation of 97-3-79; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Mississippi.

¶ 12. Collins first asserts the indictment is insufficient "since Count 2 ... came after the phrase 'against the peace and dignity of the State.' " Collins claims that because Count 1 concluded with the phrase "against the peace and dignity of the State of Mississippi," he "cannot be legally charged with Count 2."

¶ 13. Article 6, Section 169 of the Mississippi Constitution provides, in relevant part, that "all indictments shall conclude 'against the peace and dignity of the state.' " "While the concluding statement is, in fact, required, it is a matter of the form of the indictment." Pegues v. State , 214 So.3d 1080, 1082 (¶ 5) (Miss. Ct. App. 2017). As such, claims regarding the concluding statement "must be raised as a demurrer to the indictment and are waived by a valid guilty plea." Id. As there is no indication in the record that Collins objected to his indictment prior to pleading guilty, this claim is waived by his valid guilty plea. Id. at 1082-83 (¶ 5).

¶ 14. Notwithstanding the procedural bar, we find Collins's claim is meritless. Collins was indicted on two counts, aggravated assault and armed robbery. Both Count 1 and Count 2 conclude with "against the peace and dignity of the State of Mississippi." Simply because Count 1 concludes with such language does not affect or negate the validity of Count 2, as such language is required.

¶ 15. Collins further asserts the indictment is defective because it fails to allege an essential element of the offense of aggravated assault. Specifically, Collins claims Count 1 of the indictment does not include the word "serious" as a modifier of "bodily injury." The failure to charge an essential element of a criminal offense is not waived by a valid guilty plea. Id. at 1083 (¶ 8) ; see also Morgan v. State , 966 So.2d 204, 207 (¶ 14) (Miss. Ct. App. 2007). "However, an indictment for the crime of aggravated assault with a deadly weapon does not require the State to prove serious bodily injury." Cummings v. State , 130 So.3d 129, 132 (¶ 8) (Miss. Ct. App. 2013).

¶ 16. Collins was indicted pursuant to Mississippi Code Annotated section 97-3-7(2)(a)(ii) (Rev. 2014) which states, "[a] person is guilty of aggravated assault if he ... attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm ...." The indictment advised Collins that he was charged with aggravated assault pursuant to section 97-3-7 and tracked the language of section 97-3-7(2)(a)(ii). Thus, the indictment contained the essential elements of the offense and sufficiently notified Collins of the charges against him.

¶ 17. We find the indictment is neither insufficient nor defective. Accordingly, Collins's claim fails.

IV. Illegal Sentence

¶ 18. Collins next argues his sentence is illegal since the indictment is defective.

However, for the reasons previously discussed, Collins's indictment is not defective.

¶ 19. The record shows Collins entered a valid guilty plea to aggravated assault and was sentenced within the statutory guidelines for such charge. Thus, Collins's sentence is not illegal. This issue is without merit.

V. Ineffective Assistance of Counsel

¶ 20. Collins last argues he received ineffective assistance of counsel. To prove ineffective assistance of counsel, Collins must show: (1) his counsel's performance was deficient, and (2) this deficiency prejudiced the 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, Collins "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.

¶ 21. Collins claims his trial counsel failed to investigate his case and never explained the State's burden of proof. However, the record clearly contradicts Collins's claim. According to the plea-hearing transcript, Collins advised the circuit court, under oath, that his counsel discussed the plea petition with him and explained it to him. Collins further advised that his counsel discussed the facts of the case with him and explained to him the State's burden of proof. Moreover, Collins advised that he was satisfied with the services of his counsel and that he had no defense to the crime.

¶ 22. Collins further claims his trial counsel "coached" him into pleading guilty despite an allegedly defective indictment. However, since Collins's indictment is neither insufficient nor defective, his counsel was not deficient in allowing him to plead guilty to the charge set forth in the indictment. Moreover, the plea-hearing transcript clearly shows that Collins's guilty plea was not the result of any threats, promises, rewards, or hopes of leniency.

¶ 23. Collins's ineffective-assistance-of-counsel claim is supported only by his bare assertions. However, a petitioner's bare assertions are insufficient to prove ineffective assistance of counsel. Pegues , 214 So.3d at 1083 (¶ 11).

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

CONCLUSION

¶ 25. We find Collins's motion for PCCR, although timely filed, is without merit. We therefore affirm the judgment of the circuit court.

¶ 26. AFFIRMED.

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

      The circuit court did not find that Collins's motion for PCCR was time-barred. Additionally, the State concedes Collins's motion was timely filed. Nevertheless, we address the issue as asserted by Collins.

      The Mississippi Rules of Criminal Procedure became effective July 1, 2017, after the entry of Collins's guilty plea.

      Mississippi Code Annotated section 97-3-7(2) provides a maximum penalty of twenty years in the custody of the Mississippi Department of Corrections.

      The record shows the circuit court also advised Collins of the State's burden of proof.