author: TINDELL, J., FOR THE COURT:

text:
    Jerome HENDERSON and Willie Henderson, Appellants v. Roosevelt BLOUNT, Appellee
    NO. 2016-CA-00174-COA
    Court of Appeals of Mississippi.
    May 8, 2018
    ATTORNEY FOR APPELLANTS: KENT E. SMITH
    ATTORNEY FOR APPELLEE: ROOSEVELT BLOUNT (PRO SE)
    BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. Jerome Henderson and Willie Henderson appeal the judgment of the Marshall County Circuit Court, which held that their breach of a lease-purchase contract entitled Roosevelt Blount to rescission of the contract and return of all monies he paid to or on behalf of the Hendersons. On appeal, the Hendersons claim the trial court awarded damages under an unenforceable liquidated-damages clause, failed to apply the defense of quasi-estoppel, and failed to base its determination on substantial credible evidence. After review, we find no error and affirm the circuit court's judgment.

FACTS

¶ 2. On May 17, 2013, the Hendersons and Blount entered into a written agreement (the contract) that contemplated Blount's lease and eventual purchase from the Hendersons of five acres, including an existing structure (the building) and the use of its name, "Club Emotions." In the event of a breach or failure in certain aspects of the contract, the contract set forth remedies in separate clauses that applied depending on the specific breach or failure of either party. The contract terms relevant to this appeal required the Hendersons to make, prior to the start of the contract, certain building repairs including (but not limited to): full and total repair of the roof; repair of the exterior entrance ceilings; and curtailment of water leaking into the restroom.

¶ 3. In two separate clauses, once as "Covenants of the Landlord/Seller," and again under "Special Provisions," the contract delineated those repairs in all caps and bold. The contract further set forth the remedies due to Blount if the Hendersons failed to complete the repairs: void the contract by written notice to the Hendersons and receive all monies paid thereunder in return; or complete the repairs himself and receive reimbursement or credit toward the payments due under the contract. Regarding Blount's obligations to the Hendersons, the contract required the tenant/buyer, Blount, to make monthly payments of $3,000 to the Hendersons toward the total purchase price of $125,000. Blount's default in those payments entitled the Hendersons to keep all monies paid.

¶ 4. For at least eighteen months after signing the contract in May 2013, Blount made a number of payments to or on behalf of the Hendersons. Blount presented direct evidence from his wife, April Blount, that he paid the Hendersons $30,420 during this eighteen-month time span. All parties agree that this amount fell short of the $3,000 a month the contract contemplated for use of the property and the repaired building. However, during this time, the Hendersons failed to undertake the required repairs.

¶ 5. Between November 2014 and early 2015, the Hendersons prematurely demanded payment from Blount of the remaining balance due on the full contract amount of $125,000. And, in early 2015, the Hendersons terminated Blount's use of the property when they sued for Blount's removal from the property by writ in the Marshall County Justice Court. Thereafter, in April 2015, Blount sued the Hendersons for breach of contract in the circuit court and sought $38,771. The circuit court held a bench trial on January 4, 2016, with the parties proceeding pro se. After hearing from the parties and their witnesses, the court rendered a judgment in favor of Blount. The circuit court held: the Hendersons committed several material breaches of the contract; Blount was entitled to rescission of the contract; and Blount was entitled to a return of all monies paid in the amount of $30,427. Aggrieved, the Hendersons appeal.

STANDARD OF REVIEW

¶ 6. On the issue of contract construction and defenses to its enforcement, "[t]he standard of review for questions concerning the construction of contracts are questions of law that are committed to the court rather than to the fact-finder." Fairchild v. Bilbo , 166 So.3d 601, 605 (¶ 9) (Miss. Ct. App. 2015) (citing Cherry Bark Builders v. Wagner , 781 So.2d 919, 921 (¶ 5) (Miss. Ct. App. 2001) ). "Appellate courts review questions of law de novo." Id.

¶ 7. This Court must defer to the trial court's factual determinations when they are supported by substantial evidence unless the trial judge abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Covington Cty. v. G.W. , 767 So.2d 187, 189 (¶ 4) (Miss. 2000) (quoting Church of God Pentecostal Inc. v. Freewill Pentecostal Church of God Inc. , 716 So.2d 200, 204 (¶ 15) (Miss. 1998) ).

ANALYSIS

¶ 8. On appeal, the Hendersons assert: (1) quasi-estoppel precludes Blount from recovery; (2) the contract's damage clause the trial court enforced is an unreasonable liquidated-damages clause; and (3) the trial court's determination of damages was not based on substantial credible evidence.

I. Quasi-estoppel

¶ 9. The long recognized doctrine of quasi-estoppel "forbids one from both gaining a benefit under a contract and then avoiding the obligations of that same contract." Bailey v. Kemp , 955 So.2d 777, 782 (¶ 21) (Miss. 2007). A party "cannot claim benefits under a transaction or instrument and at the same time repudiate its obligations." Wood Naval Stores Export Ass'n v. Gulf Naval Stores Co. , 220 Miss. 652, 664, 71 So.2d 425, 430 (1954). This estoppel acts to forbid one from both gaining a benefit under a contract and then avoiding his obligations in that same contract. Bailey , 955 So.2d at 782 (¶ 21).

¶ 10. The Hendersons ask for application of quasi-estoppel as a defense to Blount's contractual claims. This is not a case giving rise to that defense. A simple review of the facts reflects that the Hendersons benefitted from receiving the lease payments but failed to fulfill their obligations to repair the premises.

¶ 11. The Hendersons' contention that Blount's partial failure to make full monthly payments somehow blocks Blount from recovery is also without merit. The contract clearly delineates the penalties for the specific breaches or failures that occurred. Thus, this is a case grounded on varying degrees of mutual negligence in performance under the contract that can and should be resolved by the contract terms drafted by the parties themselves.

¶ 12. Bott v. J.F. Shea Co. , 299 F.3d 508 (5th Cir. 2002), illustrates the basis for denying application of quasi-estoppel in this case. In Bott , the contract required a subcontractor to obtain insurance naming the contractor as an additional insured. The subcontractor did so but improperly identified the contractor in the insurance documents. Despite receiving the certificates of insurance that reflected the error, with knowledge that he was not listed as an additional insured, the contractor allowed the subcontractor to perform under the contract. Id. at 510. Thus, both parties to the Bott contract erred in some respects with regard to their actions and obligations under the contract. Id. at 513. On review, the Fifth Circuit found it was inappropriate for the district court to apply the equitable defense of quasi-estoppel to the parties' mutual negligence when the Bott contract's provisions adequately addressed the breaches at issue. Id. at 513-14.

II. Liquidated-Damages Clause

¶ 13. The Mississippi Legislature and the Courts have spoken on the subject of preset liquidated damages. Miss. Code Ann. § 75-2-718 (Rev. 2016); Culbreath Revocable Tr. v. Sanders , 979 So.2d 704, 712 (¶ 29) (Miss. Ct. App. 2007). "Equity will enforce a contract for liquidated damages if such liquidated damages can be found to be reasonable and proper in the light of the circumstances of the case." R.K. v. J.K. , 946 So.2d 764, 774 (¶ 23) (Miss. 2007) (citing Maxey v. Glindmeyer , 379 So.2d 297, 301 (Miss. 1980) ).

¶ 14. To be enforceable, liquidated-damage clauses, those bargained for and preset-by-contract damage estimates, must be reasonable in light of the anticipated harm caused by the breach. Culbreath Revocable Tr. , 979 So.2d at 712 (¶ 29) ; Maxey , 379 So.2d at 301. To evaluate liquidated-damage clauses, we look at: (1) the parties' intention to set an agreed amount of damages at the time of making the contract; and (2) the reasonableness of the amount set in relation to any probable damage that may follow the specific breach. Hovas Const. Inc. v. Bd. of Trs. of W. Line Consol. Sch. Dist. 2012 , 111 So.3d 663, 666-67 (¶ 12) (Miss. Ct. App. 2012).

¶ 15. The Hendersons claim the contract's liquidated-damages clause pertaining to their breach is unenforceable and allegedly filed in retaliation after Blount's removal from the property. They also discuss the alleged ease of determining damages under the alternate and elective remedy provided by the contract. The Hendersons contend the damages clause, as enforced, is nothing more than a retaliatory penalty. We find their argument is an inaccurate analysis of the issue.

A. The contract reflects the parties' intent to, in the event of specific breaches or failures, recover their estimated damages through delineated contract provisions.

¶ 16. In Shields v. Early , the Mississippi Supreme Court stated that:

"[w]hether a sum stipulated is a penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged as at the time of the making of the contract, not as at the time of the breach." Shields v. Early , 132 Miss. 282, 297, 95 So. 839, 841 (1923) (citation and internal quotation marks omitted). Thus, to determine whether the outlined sum-refund of all monies paid-was intended as liquidated damages, we first look to the contract itself.

¶ 17. There is a clause titled, "LIQUIDATED DAMAGES," applicable in the event of Blount's default; and there is a separate clause titled, "SPECIAL PROVISIONS," applicable in the event of the Hendersons' failure to make delineated repairs. By their signatures, the parties expressed consent to those provisions, which provide a remedy in the event of either party's failure to perform certain duties set forth in the contract. The contract clearly states that the Hendersons' initial duties regarding the repairs were vital to the contract's existence; that the contract's lease term was not even to start until said repairs were made; and that the Hendersons' failure to perform those initial duties entitled Blount to rescission of the contract and a discharge from the performance of his promises to pay the monthly sums. Matheney , 248 Miss. at 849, 161 So.2d at 519-20.

B. The damages, estimated in advance by the parties, are not unreasonable.

¶ 18. Consideration of whether the estimated sum is out of proportion to the damages that might result from the Hendersons' breach is aided by the following statement:

c. Where the amount of loss or harm that has been caused by a breach is uncertain and difficult of estimation in money, experience has shown that the estimate of a court or jury is no more likely to be exact compensation than is the advance estimate of the parties themselves. Further, the enforcement of such agreements saves the time of courts, juries, parties, and witnesses and reduces the expense of litigation. In such cases, if it is not shown that the principle of compensation has been disregarded, the liquidation by the parties is made effective.

Restatement (First) of Contracts § 339 (Am. Law Inst. 1932).

¶ 19. The Hendersons offer no proof to show the outlined sum is unjust or oppressive or disproportionate to the damages. See Hovas Const. Inc. , 111 So.3d at 666-67 (¶ 12). Instead, they allege the damages are retaliatory in nature. And, while claiming the damage clause is unenforceable, they ask that Blount be restrained solely to enforcement of the alternate remedy provided therein-acceptance of the lease and cost of the repairs as damages. Additionally, they argue that this alternate remedy, the fair market value of the repairs, is an easily calculated damage value for an appraiser or contractor.

¶ 20. The Hendersons clearly contracted to complete certain repairs prior to the start of the lease-purchase. If those repairs were not completed, the Hendersons clearly agreed that Blount could recover, in damages, all monies that he had paid to that date or the cost of the repairs. Alternatively, the amounts Blount paid during his possession of the property, which nearly total the damages awarded by the trial court, are outlined, by date and amount, in his wife April's testimony. Only where the stipulated amount bears no reasonable relationship to the probable or actual loss, and where damages can be easily ascertained, should the damage provision be treated as a penalty. Cont'l Turpentine & Rosin Co. v. Gulf Naval Stores Co. , 244 Miss. 465, 484, 142 So.2d 200, 209 (1962). As shown in the testimony, the amount of damages awarded is not out of line with the overall expenditures associated with Blount's acceptance and performance by payment under the contract. Thus, we find no error in the trial court's award to Blount of the contracted amount of preset liquidated damages.

III. Judgment Based on Substantial Credible Evidence.

¶ 21. Applying our standard of review, the trial court's judgment must be affirmed if supported by substantial credible evidence. Thompson ex rel. Thompson v. Lee Cty. Sch. Dist. , 925 So.2d 57, 62 (¶ 7) (Miss. 2006). We must give deference to the trial judge, sitting as the trier of fact, who has the sole authority for determining the credibility of the witnesses. City of Jackson v. Lipsey , 834 So.2d 687, 691 (¶ 14) (Miss. 1991) ; Rice Researchers Inc. v. Hiter , 512 So.2d 1259, 1265 (Miss. 1987). We "must review the record and accept all evidence that would reasonably support the judgment." Donaldson v. Covington Cty. , 846 So.2d 219, 227 (¶ 34) (Miss. 2003) (citing Yarbrough v. Camphor , 645 So.2d 867, 869 (Miss. 1994) ). And, where there is conflicting evidence, we must give great deference to the trial judge's findings. McElhaney v. City of Horn Lake , 501 So.2d 401, 403 (Miss. 1987).

¶ 22. The Hendersons admit Blount made multiple payments between May 2013 and January 2014. Blount's wife, April, testified these payments totaled a sum of over $17,500. In addition to this amount, April's testimony reveals Blount made other payments through January 2014 and beyond. Blount presented direct evidence from his wife that a total of $30,420 in payments were made to the Hendersons during the time span between the execution of the contract and Blount's removal from the property.

¶ 23. Out of the thousands of dollars in payments testified to by April, the Hendersons, for the first time in their reply brief, take exception to a solitary payment item regarding a payment of $2,500 on June 25, 2013. The Hendersons direct this Court to a memorandum or receipt attached to the contract that purports to be reflective of a payment on June 25, 2013 for only $1,750. So, while the parties have dissimilar recollections of the payments made, the record as a whole clearly reflects sufficient evidence for the trial court's determination of damages.

¶ 24. Examining the entire record and accepting the evidence which reasonably tends to support or favor the lower court's findings of fact, we find there is substantial credible evidence to support the trial court's factual determination for the award of $30,420 in damages.

CONCLUSION

¶ 25. Because we find no error, we affirm the circuit court's judgment.

¶ 26. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., NOT PARTICIPATING.

      The contract language on this point reads as follows:
      "Landlord/Seller will complete the following repairs or this Lease Purchase will become null and void and all monies paid by Tenant/Buyer will be immediately refunded by Landlord/Seller or, at Tenant/Buyer's option, Tenant/Buyer may accept the Lease Purchase and complete[ ] the items listed below .... THE FIRST MONTH OF THIS LEASE PURCHASE IS TO START ONCE ALL REPAIRS ARE COMPLETE BY LANDLORD/SELLER ...."

      The contract language on this point reads as follows: "LIQUIDATED DAMAGES: Should Tenant/Buyer default on this agreement, Landlord/Seller shall keep all monies paid as liquidated damages."

      This amount consisted of $30,077 paid to the Hendersons and $8,694 for reimbursements in improvements made.

      A full delineation of the procedural history in the circuit court would include: the Hendersons answered on May 20, 2015, denying all allegations of the complaint; the circuit court held a hearing on June 1, 2015; and on June 29, 2015, the court granted Blount a default judgment in the amount of $38,771, as well as post judgment interest at 8% per annum. The circuit court later set aside the default judgment because it was entered in error.

      The contract language on this point reads as follows: "Landlord/Seller will complete the following repairs or this Lease Purchase will become null and void and all monies paid by Tenant/Buyer will be immediately refunded by Landlord/Seller .... THE FIRST MONTH OF THIS LEASE PURCHASE IS TO START ONCE ALL REPAIRS ARE COMPLETE BY LANDLORD/SELLER ...."

      The contract language on this point reads as follows: "Landlord/Seller will complete the following repairs or this Lease Purchase will become null and void and all monies paid by Tenant/Buyer will be immediately refunded by Landlord/Seller or, at Tenant/Buyer's option, Tenant/Buyer may accept the Lease Purchase and complete[ ] the items listed below, and the cost of same will be recovered .... THE FIRST MONTH OF THIS LEASE PURCHASE IS TO START ONCE ALL REPAIRS ARE COMPLETE BY LANDLORD/SELLER ...."

      By clerical error or otherwise, the final judgment was entered for $30,427, rather than the $30,420 in payments testified to by April. The record reflects no motion to correct the numbers, nor explanation, and the parties did not bring this discrepancy before us.

      While this memorandum is referenced in the Hendersons' reply brief and appears to reflect a $1,750 payment on June 25, 2013, rather than $2,500, it was neither noted as an amendment to any payment claim nor expressly pointed out to the trial court for consideration.


source: Caselaw Access Project

author: FAIR, J., FOR THE COURT:

license: Public Domain

text:
    D'Anzor JACKSON a/k/a D'Anzor Fernon Jackson a/k/a D'Anzor F. Jackson, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00737-COA
    Court of Appeals of Mississippi.
    May 8, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
    DISTRICT ATTORNEY: SCOTT WINSTON COLOM
    BEFORE GRIFFIS, P.J., FAIR AND GREENLEE, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. D'Anzor Jackson was convicted of burglary after a neighbor, Precious Harris, said he entered her apartment, exposed himself in front of her and her children, and made several bizarre statements that could be interpreted as sexual innuendos. While Harris was giving her statement to the police, she spotted Jackson and identified him as the perpetrator. After being forcibly restrained, Jackson claimed to be the second coming of Jesus Christ. Jackson was convicted of burglary, and, on appeal, he contends the verdict was not supported by sufficient evidence. We find no merit to this argument, and we affirm Jackson's conviction and sentence.

DISCUSSION

¶ 2. Harris testified that on May 10, 2015-Mother's Day-she was watching television in her apartment with her two young children. She heard the front door open, and when she got up to investigate, she encountered a man in her apartment she recognized as her neighbor. Though she did not know the man's name at the time, she later identified him as Jackson. Jackson asked for someone named "Ashley" or "Ash-something." Harris told Jackson that the person was not there, but Jackson walked past her and further into her apartment. She followed Jackson, as did her children, and she noticed that Jackson "had his penis hanging out." Harris told Jackson to leave, and he responded by grabbing her arm and pulling her toward him, saying "God sent me to give you a Mother's Day present." He then walked past Harris, looked at the children, and said "your kids are here for a reason; they [are] your angel[s]." Jackson then walked out of the apartment, telling Harris, "I will be back."

¶ 3. Harris went to a neighbor's apartment and called the police. As she was giving a statement to an investigator outside, she saw Jackson approaching on foot. She identified him as the man who had entered her apartment, and the officers told Jackson to get on his knees. Jackson initially complied, but when an officer tried to handcuff him, Jackson rose. The officer tried to use a taser to subdue Jackson, but Jackson got away from it and "took off."

¶ 4. The officers testified that Jackson approached them aggressively and, after being hit with the taser, he "shook it off" and advanced while "rambling" and saying "distorted words," including "that he was Jesus Christ." Jackson fled after being hit with a taser a second time. He was pursued and eventually caught behind a nearby apartment complex. The officers opined that Jackson appeared to be under the influence of drugs.

¶ 5. Jackson, for his part, testified in his own defense. He claimed that he and Harris were acquaintances, that he worked with the father of her children and had been a guest in her apartment several times before; but he denied that he had entered her apartment that evening. He said, instead, that he was heading to his mother's apartment next door when he was approached aggressively by police officers. Jackson did not realize he was suspected of a serious offense, and he explained that he may have said "Jesus Christ" in surprise or frustration while the officers demanded his name. The officers responded to his initial hesitation by shooting him with a taser. The officers continued tasing him after he submitted, which prompted Jackson to flee. Jackson said he may have been incoherent as a result of being repeatedly shocked, but he admitted he had also used marijuana earlier. He speculated that his marijuana may have been laced with some more potent drug or that someone may have "slipped something into his drink."

¶ 6. Jackson was convicted of burglary on the theory that he broke into Harris's home "with the intent to commit the crime of assault within." On appeal, Jackson challenges the sufficiency of the evidence supporting his conviction. In reviewing the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (abrogated on other grounds by Little v. State , 233 So.3d 288 (Miss. 2017) ). Where the facts and inferences "point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty," the proper remedy is to reverse and render. Id. However, if "reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient." Id.

¶ 7. Jackson's only argument on appeal is that "[t]he mere testimony of one witness ... which is in direct conflict with [Jackson's] testimony in multiple places, is insufficient" to prove the elements of burglary. This argument ignores clearly established precedent, as it has long been the rule in Mississippi that "a single witness's uncorroborated testimony is sufficient to support a conviction." Cousar v. State , 855 So.2d 993, 998-99 (¶ 16) (Miss. 2003) (citing Doby v. State , 532 So.2d 584, 591 (Miss. 1988) ). It makes no difference that Jackson testified to the contrary, as "[t]he jury determines the weight and credibility to give witness testimony and other evidence." Gillett v. State , 56 So.3d 469, 505 (¶ 102) (Miss. 2010).

¶ 8. Harris's testimony was legally sufficient evidence to support Jackson's conviction.

¶ 9. AFFIRMED.

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


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

text:
    Vince BATES, Appellant v. CITY OF NATCHEZ, MISSISSIPPI, Appellee
    NO. 2017-CC-00345-COA
    Court of Appeals of Mississippi.
    May 8, 2018
    ATTORNEY FOR APPELLANT: PAUL ANDERSON KOERBER
    ATTORNEY FOR APPELLEE: EDGAR HYDE CARBY
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In this appeal, we must determine whether there was substantial evidence to support the decision of the Civil Service Commission (CSC) of the City of Natchez to suspend and demote Vince Bates, a Natchez police officer.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 19, 2014, Bates placed a personal tracking device on a fellow officer's patrol car. This officer, Elvis Prater, filed an offense report, and Bates was charged with trespass and disturbing the peace. These charges were later dismissed. After an internal investigation and a pre-termination hearing, the City of Natchez recommended terminating Bates's employment. The City determined that Bates had violated the City's personnel policy by exhibiting conduct unbecoming for an officer and improper use of a City vehicle. Bates then appealed to the CSC. After a hearing, the CSC determined that Bates should not have been terminated and modified the City's termination order. The CSC suspended Bates for four months without pay and demoted him to a patrolman with no supervisory duties.

¶ 3. Bates appealed to the Adams County Circuit Court. After reviewing the record, the trial found that substantial evidence existed to support the CSC's decision and that the CSC acted in good faith.

¶ 4. Bates now appeals, asserting that the CSC's decision lacked substantial evidence and that his due-process rights were violated. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. A CSC's review of a city's decision to remove, suspend, demote, or discharge a civil-service employee is limited to determining whether the "disciplinary action was or was not made for political or religious reasons and was or was not made in good faith for cause." Miss. Code Ann. § 21-31-23 (Rev. 2015). A trial court's review of the CSC's decision is limited to a review of the transcript of the proceedings before the Commission to determine "whether the judgment or order of removal, discharge, demotion, suspension[,] or combination thereof made by the Commission, was or was not made in good faith for cause ...." Id.

¶ 6. Our standard of review is limited to "whether or not the action of the [CSC] was in good faith for cause." Necaise v. City of Waveland , 170 So.3d 616, 618 (¶ 9) (Miss. Ct. App. 2015) (quoting City of Vicksburg v. Lane , 11 So.3d 162, 165 (¶ 10) (Miss. Ct. App. 2009) ). "Intertwined with this question is whether or not there was substantial evidence before the [CSC] to support its order[,] and whether the decision is arbitrary, unreasonable, confiscatory, and capricious." Id.

DISCUSSION

I. Substantial Evidence

¶ 7. In his first issue on appeal, Bates argues that the CSC lacked substantial evidence in rendering its decision. Bates claims that the placement of the tracking device on a fellow officer's vehicle was an innocent prank and did not violate police department policies. He also alleges that his initial termination was in retaliation for his past reporting of wrongdoing by his fellow officers.

¶ 8. Bates, however, has failed to show the CSC acted without good faith for cause. The CSC did not simply "rubber stamp" the City's decision; rather it conducted an extensive hearing, as noted by the trial court. Eight witnesses, including Bates, testified, and eighteen exhibits were admitted. There was evidence that Bates violated a City policy regarding personal use of City assets and a policy regarding use of City vehicles. There was also evidence that Bates's actions created an atmosphere of distrust among his fellow officers and damaged the morale of the police department. Several of Bates's coworkers indicated that Bates had a vindictive nature. Officer Prater testified that he thought Bates had placed the GPS on his patrol car in retaliation for a comment Officer Prater previously made to Bates-Officer Prater implied that Bates had been sleeping during his shift. The trial court found that it was "clear from the transcript of the hearing that the examination and cross-examination of each witness was in-depth and comprehensive." We find the CSC's decision to suspend and demote Bates was supported by substantial evidence; thus, we affirm the CSC and the trial court.

¶ 9. We note that Bates asserts that the CSC's order did not contain a discussion or analysis of how the CSC reached its decision. However, Bates does not cite to any law that requires the CSC to make detailed findings of fact. In this instance, though, it is clear that the CSC conducted a thorough review because it found there was not substantial evidence to uphold the City's decision to terminate Bates.

II. Due Process

¶ 10. Bates briefly argues that his due-process rights were violated because he was not provided with proper notice and an opportunity to be heard. "When a procedural due process claim is raised in a case, it must be evaluated using a two step process." Burleson v. Hancock Cty. Sheriff's Dep't Civil Serv. Comm'n , 872 So.2d 43, 49 (¶ 16) (Miss. Ct. App. 2003) (citing Nichols v. City of Jackson , 848 F.Supp. 718, 720 (S.D. Miss. 1994) ). "The first step requires the court to decide whether a protected life, liberty or property interest exists. The second step is a court determination of what process is required in the situation." Id. (quoting Nichols , 848 F.Supp. at 720 ).

¶ 11. As a civil service employee, Bates has a property interest in his employment. See Miss. Code Ann. § 21-31-13 (Rev. 2015). In regard to the second step, Bates was given the minimum due process required. The record indicates Bates was given notice at every stage of the proceedings. He had a pre-termination hearing before the police department's disciplinary board, of which he had notice and an opportunity to have an attorney present and call witnesses. Bates was notified of the police department's decision to recommend termination, and this notification indicated the police department would make the recommendation to the mayor at a meeting on a specific date. Bates was invited to attend the meeting. Bates was also notified of the City's recommendation to terminate and informed he had ten days to appeal to the CSC. Bates then had a hearing before the CSC where he was represented by an attorney. This issue is without merit.

¶ 12. AFFIRMED.

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


author: GREENLEE, J., FOR THE COURT:

text:
    Khloe CONNER, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee
    NO. 2017-CC-00605-COA
    Court of Appeals of Mississippi.
    May 15, 2018
    ATTORNEY FOR APPELLANT: KHLOE CONNER (PRO SE)
    ATTORNEY FOR APPELLEE: ALBERT B. WHITE
    BEFORE IRVING, P.J., GREENLEE AND WESTBROOKS, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. The Mississippi Department of Employment Security's Board of Review (Board) affirmed the denial of unemployment benefits following Khloe Conner's termination from Dollar General. Conner appealed to the Circuit Court of the Second Judicial District of Jones County, which affirmed the Board's decision. Finding no error, we affirm the circuit court's judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 15, 2015, Conner began working at Dollar General as a lead sales associate. On September 30, 2016, Conner was terminated, in accordance with the company's workplace-violence policy, because she engaged in a physical altercation with a customer, during which she cut the customer with a box-cutter.

¶ 3. After her termination, Conner sought unemployment benefits, and a claims examiner investigated the reasons for her termination. Ultimately, the claims examiner denied Conner unemployment benefits finding that Conner was discharged from work for misconduct connected with her employment and was therefore disqualified from receiving benefits. Conner appealed the denial of her claim to an administrative-law judge (ALJ), who conducted a telephonic hearing.

¶ 4. During the hearing on Conner's appeal, Curtis Swires, the Dollar General store manager, testified that Conner was discharged from her job as a lead sales associate because she violated Dollar General's workplace-violence policy. He testified that Conner was aware of this policy and explained the policy indicated that Dollar General would not ignore, condone, or tolerate any disruptive, threatening, or violent behavior by any Dollar General employee, and such behavior could lead to termination.

¶ 5. Swires testified that on the day of the incident, Conner and a customer got into a verbal altercation after the customer asked for one of her items to be bagged. Following the verbal altercation, Swires testified that the customer told Conner she would be waiting on her outside and that Conner replied, "You don't have to. I'm on break. I will be right outside." Swires testified that he ordered Conner not to immediately go outside but wait five minutes for the customer to leave. However, Swires claimed that she ignored his order, and she waited only a minute and a half before going outside. Swires testified that about thirty seconds after Conner went outside he heard a "commotion" and went outside to investigate. Once outside, Swires claimed he witnessed Conner swinging at the customer and observed the customer bleeding from several areas of her body. The customer advised Swires that Conner had cut her with a box-cutter.

¶ 6. Next, Conner testified on her own behalf. She admitted that she had a verbal altercation with a customer, but denied that Swires told her to wait five minutes before going outside. She also testified that she went outside not knowing the customer was waiting on her and was attacked. She testified that she acted in self-defense and felt there was no other alternative to escape, so she picked up a box-cutter that was in her possession and cut the customer several times.

¶ 7. After concluding the hearing, the ALJ affirmed the claims examiner's denial of benefits, finding that Conner's conduct violated Dollar General's workplace-violence policy and rose to the level of misconduct. Conner, still aggrieved, sought review from the Board, which after careful consideration of the record affirmed the ALJ's decision.

¶ 8. On February 2, 2017, Conner appealed to the Circuit Court of the Second Judicial District of Jones County. On April 24, 2017, the circuit court affirmed the Board's decision, finding that the decision was supported by substantial evidence. Conner appeals.

STANDARD OF REVIEW

¶ 9. "This Court's scope of review in an unemployment compensation case is limited." Welch v. Miss. Emp't Sec. Comm'n , 904 So.2d 1200, 1201 (¶ 5) (Miss. Ct. App. 2004). In reviewing a decision of the Mississippi Department of Employment Security (MDES), "[t]he findings as to the facts of the Board of Review are conclusive if supported by substantial evidence and absent fraud." Id. Further, the supreme court has explained that "where there is the required substantial evidence, this Court has no authority to reverse the circuit court's affirmance of the decision of the Board of Review." Broome v. Miss. Emp't Sec. Comm'n , 921 So.2d 334, 337 (¶ 12) (Miss. 2006). Thus, the denial of unemployment benefits will be disturbed on appeal only if the agency's decision (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope of power granted to the agency, or (4) violates the claimant's constitutional rights. Johnson v. Miss. Emp't Sec. Comm'n , 761 So.2d 861, 863 (¶ 6) (Miss. 2000).

DISCUSSION

¶ 10. On appeal, Conner contends that she was entitled to unemployment benefits because her actions were not "misconduct," and, therefore, she is not an excluded person under Mississippi Code Annotated section 71-5-513 (Supp. 2017). She asserts that the altercation happened while she "was not on the clock" and was not in the course of employment so, as a matter of law, the altercation cannot be misconduct in connection with her work. Further, she asserts that her actions were in self-defense and cannot be misconduct.

¶ 11. It is well settled that in employment-misconduct cases, "the employer bears the burden to prove by substantial, clear, and convincing evidence that a former employee's conduct warrants disqualification of benefits."

Windham v. Miss. Dep't of Emp't Sec. , 207 So.3d 1249, 1252 (¶ 10) (Miss. Ct. App. 2017) (quoting Over the Rainbow Daycare v. Miss. Dep't of Emp't Sec. , 188 So.3d 1249, 1251 (¶ 7) (Miss. Ct. App. 2016) ). The supreme court has defined disqualifying "misconduct" as:

[C]onduct evincing such willful and wanton disregard of the employer's interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer's interest or of the employee's duties and obligations to his employer ... [comes] within the term.

Wheeler v. Arriola , 408 So.2d 1381, 1383 (Miss. 1982). However, an employee's conduct "may be harmful to the employer's interests and justify the employee's discharge; nevertheless, it evokes the disqualification for unemployment insurance benefits only if it is wilful, wanton or equally culpable." Acy v. Miss. Emp't Sec. Comm'n , 960 So.2d 592, 595 (¶ 14) (Miss. Ct. App. 2007).

¶ 12. Fighting has been found to be grounds for disqualification of benefits. Welch , 904 So.2d at 1202-03 (¶ 13). In Welch , this Court affirmed the Board's denial of unemployment benefits to a claimant who engaged in a physical altercation with another employee. The employee in Welch admitted that a fight had occurred and that he had thrown the first punch. Id. at 1202 (¶ 7). Further, Welch admitted that he received an employee handbook and knew that he could lose his job for fighting. Id. In affirming the Board's decision, we found that the "evidence show[ed] that Welch's physical altercation with another employee violated the terms of the employee handbook." Id at (¶ 12). Additionally, this Court specifically found that Welch's action constituted misconduct and therefore upheld the denial of unemployment benefits. Id. at 1202-03 (¶ 13).

¶ 13. Similarly, in the present case the evidence shows that Conner had received an employee handbook, which contained her employer's workplace-violence policy. While Conner testified that she did not read this handbook, she admitted that it was a reasonable policy for employees not to engage in "disruptive, threatening, or violent behavior." Further, Conner admitted that she cut the customer with a box-cutter, but asserts that it was in self-defense. While Conner does have a right to defend herself, her employer also has an interest in providing a safe store for customers and other workers. Conner's deliberate action of leaving the store and going into the parking lot was not only in direct contravention of her manager's order but evinced "such willful and wanton disregard of the employer's interest ... [and] standards of behavior which the employer has the right to expect from his employee." Wheeler , 408 So.2d at 1383. Accordingly, we find the Board's denial of unemployment benefits was supported by substantial evidence. Furthermore, we specifically find that Conner's action constituted "misconduct" and disqualified her from receiving unemployment benefits. Thus, we affirm the circuit court's decision.

CONCLUSION

¶ 14. We agree with the circuit court's decision that substantial evidence was presented to support Conner's denial of unemployment benefits. Conner's deliberate action of going outside to the parking lot and engaging in a physical altercation with a customer was against the employer's workplace-violence policy. Further, Conner acted in such willful and wanton disregard for her employer's interests that disqualification of benefits is warranted. We therefore affirm the circuit court's decision affirming the denial of unemployment benefits.

¶ 15. AFFIRMED.

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


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

text:
    Sylvester GARNER ON BEHALF OF Tracey Lynn GARNER, Deceased, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00141-COA
    Court of Appeals of Mississippi.
    May 15, 2018
    ATTORNEYS FOR APPELLANT: JOHN M. COLETTE, SHERWOOD ALEXANDER COLETTE, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LISA L. BLOUNT, JACKSON
    EN BANC.
   GREENLEE, J., FOR THE COURT:

¶ 1. A jury sitting before the Hinds County Circuit Court, First Judicial District, found Tracey Lynn Garner guilty of depraved-heart murder and conspiracy to commit wire fraud. Garner appeals and claims the circuit court erred when it allowed the prosecution to present expert testimony from three physicians. We disagree. However, the circuit court erred when it denied Garner's motion for a judgment notwithstanding the verdict (JNOV) regarding the conviction for conspiracy to commit wire fraud. Consequently, we affirm the circuit court's judgment in part, and reverse and render in part.

FACTS AND PROCEEDINGS BELOW

¶ 2. Karima Gordon died pursuing her goal to become what her friend, Angelean Barber, described as an "urban hiphop model." Convinced that she needed silicone injections in her buttocks, in 2010 Gordon began emailing Natasha Stewart, who worked under the stage name, "Pebbelz da Model." Gordon asked Stewart for "information regarding ... butt enhancement ...." Describing it as "a very touchy subject," Gordon asked Stewart to "let [her] know what[ ]ever [she] ha[d] to do to get this taken care of." She also said that she had "been to numerous websites" but she "could not find the right information." Stewart responded cordially, but she did not disclose anything about the "enhancements" that Gordon sought. Gordon emailed Stewart again and said that she would not "give up on [her] mission to ultimately achieve a tastefully great butt enhancement."

¶ 3. In November 2011, Gordon emailed Stewart again. Gordon said she had "not gotten [her] situation fixed yet" and she was "still looking for a good butt job like" Stewart's. Gordon asked for a referral and told Stewart that she did "not mind compensating [her] for this secretive information ...." Apparently preferring to speak in person, Stewart invited Gordon and Barber to a party she was hosting at a club in Queens, New York. In February 2012, Gordon and Barber flew from Atlanta to Queens. During their meeting at the club, Stewart revealed that "Miss Tracey" had "been doing her[ enhancements] for years." Stewart also represented that "Miss Tracey" was a nurse. However, Stewart did not reveal "Miss Tracey's" contact information or address at that time. Subsequent testimony clarified that "Miss Tracey" was the defendant, Tracey Lynn Garner.

¶ 4. On March 12, 2012, Stewart sent Garner a text message. Garner replied one minute later. The record does not reveal the substance of their exchange. Garner and Stewart exchanged a few more text messages that week. Again, the record is silent regarding what they said to one another.

¶ 5. On March 15, 2012, Stewart disclosed Garner's phone number and gave Gordon directions to an address in Jackson, Mississippi. According to Barber, she and Gordon thought the directions were to Garner's house. Even so, Gordon's handwritten directions indicate that she and Barber planned to meet Garner at a Walgreens. The next morning, Gordon and Barber drove from Atlanta to Jackson. During their trip, Gordon and Garner exchanged a number of text messages. Garner's outgoing messages are included in the record, but Gordon's messages are not. Nearly all of Garner's texts were inquiries about Gordon's location. Gordon also communicated with Stewart several times during their trip. When Gordon and Barber arrived at Walgreens in Jackson, Garner was not there. Gordon went inside Walgreens and bought a Green Dot Moneypak card. After using it to send Stewart a $200 referral fee, Garner gave Gordon and Barber directions to her house. Garner was wearing scrubs when she met Gordon and Barber in the driveway.

¶ 6. When Barber saw that Garner appeared to be transgendered, she decided not to get silicone injections. She waited in one room while Gordon and Garner went into another part of the house. Garner gave Gordon an unknown number of silicone injections. Barber later said that Gordon was in obvious pain after the injections. Barber relayed Gordon's claim that it was "the worst feeling of her life."

¶ 7. Gordon and Barber immediately started their trip back to Atlanta. They contacted Garner because Gordon had a persistent cough and she was sweating profusely. Garner recommended cough medicine or Benadryl. Around thirty minutes after leaving Garner's house, Barber had to pull over so Gordon could defecate on the side of the interstate. During the return trip, Gordon continued to have difficulty breathing, and Barber had to pull over several times so Gordon could defecate on the side of the road.

¶ 8. When they got to Stockbridge, Georgia, Barber took Gordon to the emergency room. Gordon and Barber did not tell hospital staff about Gordon's silicone injections because they were scared, and they had been "told not to tell exactly what had happened to her at that time." The hospital released Gordon early the next morning. Two days later, Gordon went back to the emergency room, where she was treated by Dr. Darina Stankeyeva.

¶ 9. Gordon was initially treated for pneumonia. She later disclosed her recent silicone injections. Testing revealed the presence of pulmonary emboli-"small particula[te]s blocking out the blood vessels in her lungs." Despite medical intervention, Gordon's condition deteriorated until she died on March 24, 2012.

¶ 10. Gordon's autopsy was performed by Dr. Steve Atkinson, a forensic pathologist employed by the Georgia Bureau of Investigation and the Georgia Medical Examiner's office. When Dr. Atkinson cut into Gordon's buttocks tissue, a clear, oily liquid spilled out. The tissue also contained numerous "cyst like spaces filled with silicone" and "relatively recent" hemorrhaging. Dr. Atkinson opined that Gordon died because some of the silicone entered her bloodstream and eventually lodged in her pulmonary capillaries, effectively preventing oxygen exchange.

¶ 11. Garner was subsequently charged with depraved-heart murder and conspiracy to commit wire fraud. At trial, the prosecution called fifteen witnesses during its case-in-chief. The evidence showed that Garner had never been a licensed medical professional. Instead, her most recent employment had been as a cook at a nursing home. There was also testimony that Gordon had been healthy and active before Garner gave her silicone injections. Investigator Lee McDivitt of the Mississippi Attorney General's Office testified that he executed a search warrant at Garner's house, and he found numerous needles, large-gauge syringes labeled "for veterinary use only," ten bottles of superglue, cotton balls, a massage table, and a large container of silicone.

¶ 12. Three of the prosecution's witnesses were medical experts. During cross-examination, Dr. Constantino Mendieta, a plastic and reconstructive surgeon, rejected the suggestion that Gordon's death was caused by silicone that had been injected prior to March 2012. Dr. Stankeyeva testified that Gordon was treated for complications related to the March 2012 silicone injections. Dr. Atkinson testified that the March 2012 silicone injections caused Gordon's death.

¶ 13. Garner chose not to testify, and she did not call any witnesses in her defense. As mentioned above, the jury found her guilty of depraved-heart murder and conspiracy to commit wire fraud. Following her unsuccessful motion for a JNOV, Garner appeals.

DISCUSSION

I. Expert Testimony

¶ 14. Garner claims that each of the prosecution's medical experts provided inadmissible testimony. "[T]he admission of expert testimony is within the discretion of the trial court." Gray v. State , 202 So.3d 243, 256 (¶ 46) (Miss. Ct. App. 2015). We will not reverse the trial court's decision to admit expert testimony unless it "was arbitrary and clearly erroneous, amounting to an abuse of discretion." Id.

¶ 15. A witness qualified as an expert may testify in the form of an opinion if "(1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods to the facts of the case." M.R.E. 702. In short, expert testimony must be relevant and reliable. Willie v. State , 204 So.3d 1268, 1273 (¶ 12) (Miss. 2016). It is relevant when it helps the jury understand the evidence or resolve a fact in issue. Id. It "is reliable when it is based upon sufficient facts or data, [when it] is the product of reliable principles and methods, and when the witness has applied the principles and methods reliably to the facts of the case." Id. The Mississippi Supreme Court has provided the following list of nonexhaustive factors that a trial court may consider when assessing reliability:

whether the expert's theory can be or has been tested; whether the theory has been the subject of peer review and publication; the known or potential rate of error of the technique or theory when applied; the existence of standards to control the technique's operation; and the general acceptance the theory has garnered in the relevant expert community.

Id. at 1273-74 (¶ 12). As the "gatekeeper," the trial court "must make a preliminary assessment regarding the scientific validity of the reasoning or methodology underlying the expert testimony and the proper application of that reasoning or methodology to the facts of the case at issue." Id. at 1274 (¶ 12).

¶ 16. Garner claims that all three experts' opinions should have been excluded under the reasoning discussed in Hawkins v. Florida , 933 So.2d 1186 (Fla. Dist. Ct. App. 2006). Mark Hawkins was convicted of the unlicensed practice of medicine causing death, felony third-degree murder, and culpable negligence after he injected silicone into Vera Lawrence's buttocks, and she died a few hours later due to what was described as "massive systematic silicone embolism." Id. at 1187-88. At Hawkins's trial, Dr. Erston Price, the associate medical examiner who conducted Lawrence's autopsy, "testified that Lawrence was injected in the subcutaneous tissue in her buttocks, which broke capillaries within the area of the hips and buttocks, and allowed the silicone to travel into the bloodstream." Id. at 1188. "In other words, the silicone essentially clogged the veins and arteries until the heart could not pump blood sufficiently to sustain the body." Id. Dr. Price explained "that even though the silicone was not injected intravascularly, it 'could have migrated into' [Lawrence's] bloodstream." Id.

¶ 17. Based on the evidence that the victim "had many, many injections of silicone over a considerable period of time," Dr. Price could not "rule out the possibility that prior silicone injections may have contributed to Lawrence's death." Id. Dr. Price also "conceded that she was not an expert regarding the mechanism or speed that silicone migrates through the body." Id. And "she could point to nothing to support her conclusion that an injection of liquid silicone could migrate through the vascular system as quickly as would have been necessary for the silicone injection... to have caused Lawrence's death." Id.

¶ 18. The Hawkins court held that Dr. Price's opinion testimony was inadmissible because, as she conceded, she was unqualified to render it. Id. at 1190. Hawkins also held that Dr. Price's opinion testimony regarding the migration rate of silicone was inadmissable under Frye v. United States , 293 F. 1013, 1014 (D.C. Cir. 1923), because the prosecution did not show that it was "sufficiently established to have gained general acceptance in the particular field in which it belongs." Hawkins , 933 So.2d at 1190. There was no testimony regarding the migration rate of silicone in the body that was "based upon scientific principles of how silicone travels in and is absorbed by the body," as compared to cases that hinge on the absorption rate of consumed alcohol. Id. Garner reasons that the prosecution's three physician experts should not have been allowed to testify that the March 2012 silicone injections were the cause of Gordon's death.

¶ 19. First and foremost, our Supreme Court has rejected the Frye "general acceptance" test, which "can result in the exclusion of relevant evidence or the admission of unreliable evidence." Miss. Transp. Comm'n v. McLemore , 863 So.2d 31, 39 (¶ 23) (Miss. 2003). Second, the facts in Hawkins are not exactly on point with this case. Lawrence died within hours of receiving silicone injections. Hawkins , 933 So.2d at 1188. Gordon died days after her silicone injections. In Hawkins , "there was evidence of chronic use of injections of silicone." Id. Here, there was no such evidence. According to Gordon's medical records, her family said she had received prior silicone injections"at least twice." But Barber testified that Gordon had never received silicone injections prior to the ones that Garner performed. And although Lawrence had "trouble breathing" shortly after receiving silicone injections, and her death was caused by "massive systematic silicone embolism," there was no testimony that silicone was discovered in any particular part of her body. Id. Instead, there was only testimony that "Lawrence's organs were 'oily.' " Id. In this case, there was testimony that pulmonary emboli were discovered during Gordon's treatment, and silicone was discovered in her lungs during her autopsy. And third, unlike Dr. Price in Hawkins , none of the prosecution's experts conceded that they were unqualified to offer their opinions. In short, neither the legal standard nor the precise circumstances of Hawkins apply to this case. Rather than finding that Hawkins is persuasive authority to exclude any of the expert testimony at issue, we examine each witness's testimony under Mississippi law.

A. Dr. Mendieta

¶ 20. During the prosecution's direct examination, Dr. Mendieta testified that "100 percent" of his practice was devoted to plastic or reconstructive buttocks surgery, and he had performed more than 2,500 procedures during his career. He said that silicone injections are "very dangerous" due to the immediate risk of death from pulmonary emboli. However, he did not opine regarding the cause of Gordon's death during direct examination.

¶ 21. On cross-examination, Dr. Mendieta responded affirmatively when asked whether he remembered seeing records in which Gordon and her family "had indicated that she had received two or three previous butt injections[.]" In response to further questions, Dr. Mendieta testified that silicone from prior injections could not have caused Gordon's death. Dr. Mendieta also explained that the risk of death was related to the technique and placement of silicone injections.

¶ 22. On redirect, the prosecution asked Dr. Mendieta about the "time frame that death occurs" after someone receives silicone injections. Dr. Mendieta answered that death "could occur almost immediate[ly] to almost like three or four weeks[,]" but "[t]he majority of them will occur ... around the first few days." When asked about the symptoms prior to death, Dr. Mendieta said that one might "experience shortness of breath," coughing, or chest pain. Garner objected "as far as the time[ ]frame" because there were "really no studies and no data here ...." The circuit court sustained Garner's objection.

¶ 23. The prosecution then asked when death would occur after silicone injections. Dr. Mendieta answered, "Days." Garner objected again. She argued that the prosecution had not provided that information during discovery, and that Dr. Mendieta's testimony was "speculative because [there were] so many variables ...." The circuit court asked the prosecution to lay a foundation and "[s]how that [Dr. Mendieta] has knowledge about this area." In response to the prosecution's next question, Dr. Mendieta testified that he had not treated people who had received silicone injections and subsequently died from them, but he "had been consulted on it," he understood "the entire process of silicone," and it was his "specialty." The prosecution began to ask Dr. Mendieta whether he had "read literature regarding" some subject, but Garner's attorney objected and asked to approach the bench before the prosecution could finish its question. After the unrecorded bench conference, Dr. Mendieta testified without additional objection that if death were going to result from silicone injections, it would occur within "days" or "weeks."

¶ 24. On appeal, Garner claims the circuit court erred when it allowed Dr. Mendieta's redirect testimony. According to Garner, Dr. Mendieta's testimony was unreliable and beyond the scope of his expertise as a plastic and reconstructive surgeon. Garner also argues that Dr. Mendieta did not rely on any scientific method or principle to reach his conclusion. She adds that Dr. Mendieta did not mention the speed that silicone travels through the body.

¶ 25. The circuit court did not abuse its discretion when it allowed Dr. Mendieta's redirect testimony. During direct examination, Dr. Mendieta testified that there was an "immediate" risk of death after receiving silicone injections. On cross-examination, Garner's attorney asked Dr. Mendieta questions suggesting that Gordon died due to prior silicone injections. Having essentially asked Dr. Mendieta to opine as to what caused Gordon's death, Garner then sought to prevent Dr. Mendieta from testifying further on that subject during his redirect testimony. But "[w]hen the defense attorney inquires into a subject on cross-examination of the State's witness, the prosecutor on rebuttal is unquestionably entitled to elaborate on the matter." Cavett v. State , 717 So.2d 722, 726 (¶ 22) (Miss. 1998). After Garner asked whether prior injections caused Gordon's death, it was logical for the prosecution to ask Dr. Mendieta to explain why they had not. Dr. Mendieta did so when he clarified the time frame that death could result after receiving silicone injections. Thus, the circuit court did not abuse its discretion when it allowed Dr. Mendieta's redirect testimony.

¶ 26. Even if Garner's attorney had not opened the door to Dr. Mendieta's redirect testimony, the circuit court did not abuse its discretion when it allowed him to testify regarding the time that someone could die after receiving silicone injections. "The scope of the witness's knowledge and experience, and not any artificial classification, governs the question of admissibility." Univ. of Miss. Med. Ctr. v. Pounders , 970 So.2d 141, 146 (¶ 17) (Miss. 2007). It was within the circuit court's discretion to find that Dr. Mendieta's education, experience, and training would have made him knowledgeable of the particular dangers of silicone injections. And Dr. Mendieta's testimony helped the jury resolve a factual dispute-whether the March 2012 injections were the cause of Gordon's death.

B. Dr. Stankeyeva

¶ 27. Next, Garner argues that Dr. Stankeyeva should not have been allowed to testify that Gordon's symptoms were caused by the March 16, 2012 injections. Dr. Stankeyeva testified as an expert in internal medicine. She was also a factual witness in that she treated Gordon in the emergency room. According to Dr. Stankeyeva, after initially treating Gordon for pneumonia, testing revealed that Gordon "had small emboli in her lungs[,] which are like clots blocking out the blood vessels in her lungs ...." Dr. Stankeyeva then testified that Gordon's March 2012 silicone injections had caused her symptoms. Dr. Stankeyeva explained that her opinion was "[b]ased on the information that [she] had through [Gordon's] hospital stay and the information that was given to [her] in history ...." Garner objected, and the circuit court excused the jury.

¶ 28. Outside of the jury's presence, Dr. Stankeyeva said that Gordon's symptoms were consistent with someone who had recently received silicone injections. When asked how Dr. Stankeyeva reached that opinion, she explained that Gordon:

presented with shortness of breath. In the documentation from Piedmont Hospital where she came first it states that she developed symptoms right after receiving injection[s]. At our hospital she had a CAT scan which showed-pulmonary emboli[,] which is consistent with what may happen with a silicone injection, and she had a silicone injection about which she told us. So putting all this information together the most likely scenario that explained her clinical picture was silicone embolization into her lungs from an injection [that she] received on March 16th.

Dr. Stankeyeva also said that "in order for silicone to get into the lung[,] it has to enter the bloodstream, and one way for it to enter the bloodstream would be [that] the injection of the needle penetrated the blood vessel." She went on to opine that prior injections had not caused Gordon's death. After voir dire, Garner argued that Dr. Stankeyeva was not qualified to testify regarding the cause of Gordon's death. Garner also argued that Dr. Stankeyeva's conclusion was unreliable for a number of reasons. The circuit court held that Dr. Stankeyeva could testify as to her treatment of Gordon, but she could not testify "as to the cause of death."

¶ 29. After the jury returned to the courtroom, Dr. Stankeyeva testified that "the cause of [Gordon's] symptoms was thought to be pulmonary embolism [s] in her lungs[,] which were thought to be caused by silicone" injections that Gordon received on March 16, 2012. She further opined that a needle had punctured a blood vessel in Gordon's buttocks, and the silicone followed her bloodstream until it lodged in small blood vessels in Gordon's lungs.

¶ 30. On appeal, Garner argues that Dr. Stankeyeva's testimony was not sufficiently reliable because it had not been verified through scientific testing or subject to peer review. Garner also argues that Dr. Stankeyeva did not know how silicone reacted in the body, and she could not be certain that prior injections had not caused Gordon's symptoms. According to Garner, Dr. Stankeyeva improperly believed that the most recent injections caused Gordon's symptoms based solely on their temporal proximity.

¶ 31. As with Dr. Mendieta, it was within the circuit court's discretion to allow Dr. Stankeyeva's testimony. Dr. Stankeyeva's testimony related to her treatment of Gordon, and the likely causes of Gordon's symptoms. In part, Dr. Stankeyeva testified as a lay witness. "[A] treating physician [may] testify as a lay witness about the facts and circumstances surrounding the care and treatment of the patient." Griffin v. McKenney , 877 So.2d 425, 439 (¶ 50) (Miss. Ct. App. 2003) (citing Scafidel v. Crawford , 486 So.2d 370, 372 (Miss. 1986) ). However, Dr. Stankeyeva was also an expert in internal medicine. Based on her education, training, and experience, Dr. Stankeyeva was qualified to offer her expert opinion regarding how silicone can enter the bloodstream and lodge in one's lungs, and why that would support a conclusion that recent silicone injections were the cause of Gordon's symptoms. That expert testimony was helpful to the jury, and it was within the circuit court's discretion to find that it was sufficiently reliable. Furthermore, Daubert v. Merrell Dow Pharmaceuticals Inc. , 509 U.S. 579, 593, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), does not state that expert testimony is per se inadmissible if the substance of the testimony has never been the subject of peer review. Kumho Tire Co. v. Carmichael , 526 U.S. 137, 151, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). It is unclear how the time between Gordon's injections and her death could be reduced to a reproducible, testable event-particularly given the illicit, clandestine nature of the circumstances. But that does not necessarily mean that a medical professional would be unable to reliably conclude that the sudden onset of Gordon's symptoms could not be traced to her most recent injections. We find that it was within the circuit court's discretion to allow Dr. Stankeyeva's expert testimony.

C. Dr. Atkinson

¶ 32. Finally, Garner argues that Dr. Atkinson should not have been allowed to testify that the March 16, 2012 silicone injections caused Gordon's death. Dr. Atkinson testified as an expert in forensic pathology. He explained that there was a "clear[,] viscous liquid" within cyst-like spaces in Gordon's buttocks. He also found hemorrhaging, and explained that "[i]f there's hemorrhage, that means it's relatively acute, meaning relatively recent." He said that it would have occurred within a week or two of Gordon's death. According to Dr. Atkinson, some of the silicone's proximity to a hematoma, a "large collection of blood," suggested that "injecting all of this silicone into the soft tissue under the skin led to the hemorrhages and led to the disruption of ... the vasculature[,] which ultimately led to [Gordon's] death with the silicone emboli." When Dr. Atkinson began to testify about the silicone found in Gordon's lungs, Garner's attorney objected, and the circuit court excused the jurors from the courtroom.

¶ 33. Outside of the jury's presence, Garner's attorney voir dired Dr. Atkinson about his "training ... with respect to silicone." Dr. Atkinson explained that silicone was one of many foreign substances that may enter a body, and it was "incorporated in medical school, residency, fellowship, et cetera." Unsatisfied, Garner's attorney continued to ask Dr. Atkinson about his specific training with silicone. Dr. Atkinson responded that "in forensic pathology, [he] ... deals with foreign substances such as silicone injected into the body." Still unsatisfied, Garner's attorney asked if Dr. Atkinson had "taken a class with silicone in the name." Dr. Atkinson said he did not know whether there was such a class. In response to further questions, he did not know whether he had taken a class where he was required to read a book or article about silicone, and he had not written any books, much less one about silicone. As for the rate that silicone would move through one's body, Dr. Atkinson could not provide a precise answer. However, he testified that there were "a lot of parameters" regarding that subject, it depended on how the silicone entered the bloodstream, and once there it would "move at roughly the speed of the blood." Dr. Atkinson also said that it was his first case in which silicone was the cause of death, although he had another case after Gordon's. He added that "every case is unique to some degree."

¶ 34. After voir dire, Garner argued that Dr. Atkinson was unqualified to testify that Gordon died because of the March 2012 silicone injections, and the methodology for his conclusion was not sufficiently reliable. The circuit court overruled Garner's objection. The jury returned to the courtroom, and Dr. Atkinson testified that the March 2012 silicone injections were the cause of Gordon's death. He also testified that "in many ... capillary beds [in Gordon's lungs] there was just silicone throughout[,] which is what led to the symptoms that she had and ultimately her death." Dr. Atkinson also explained that he could tell the substance was silicone because when he viewed stained tissue samples under a microscope, he noticed that "when you run it through your stainer, the actual silicone gets dissolved away, so you end up with perfect little punched[-]out spaces where the silicone was when the tissue was embedded in the paraffin wax." Dr. Atkinson described it as "a fairly straightfoward and easy diagnosis to make under the microscope ...."

¶ 35. Garner reasserts that Dr. Atkinson was unqualified to opine that the March 2012 silicone injections caused Gordon's death. The circuit court did not abuse its discretion when it held that Dr. Atkinson, a board-certified forensic pathologist, was qualified to testify regarding the cause of Gordon's death based on his "training, skill, and experience." The fact that it was his first autopsy involving someone who had died from pulmonary emboli related to silicone injections does not invalidate his training, experience, or education. Likewise, the circuit court did not abuse its discretion when it held that the methodology for Dr. Atkinson's conclusion was sufficiently reliable. Dr. Atkinson explained that the rate in which silicone enters the bloodstream would be subject to a number of parameters. There was no suggestion that this fatal event could be reduced to something testable. But as Dr. Atkinson explained, once the silicone entered Gordon's bloodstream, it would have traveled through the body at the same rate as her blood. "Requiring that the subject of expert testimony be known to a certainty is not necessary ... because, as the Daubert Court pointed out, 'there are no certainties in science.' " Poole ex rel. Wrongful Death Beneficiaries of Poole v. Avara , 908 So.2d 716, 723-24 (¶ 15) (Miss. 2005). This issue is meritless.

II. Conspiracy to Commit Wire Fraud

¶ 36. Garner argues that she should not have been convicted for conspiring with Stewart to commit wire fraud by falsely representing that Garner was a licensed medical professional, and by causing Gordon to electronically transfer $200 to Stewart. According to Garner, the doctrines of collateral estoppel and/or res judicata preclude her from being found guilty of conspiracy because Stewart had been acquitted of that charge in January 2014. See Stewart v. State , 211 So.3d 724, 726 (¶ 7) (Miss. Ct. App. 2016). Garner reasons that the circuit court erred when it denied her motion to dismiss the conspiracy charge.

¶ 37. Neither res judicata nor collateral estoppel precludes Garner's conspiracy conviction. "[R]es judicata is a doctrine of public policy designed to avoid the expense of multiplicity of litigation and foster reliance on judicial action by minimizing possibilities of inconsistent decisions." Webster v. State , 817 So.2d 515, 522 (¶ 29) (Miss. 2002). One of the four necessary identities-the parties to the cause of action-is not satisfied because Garner was not a party to Stewart's trial. See id at (¶ 31).

¶ 38. Collateral estoppel is also inapplicable because Garner was not a party to Stewart's trial. See State v. Oliver , 856 So.2d 328, 331 (¶ 7) (Miss. 2003) ("[C]ollateral estoppel provides that an issue of ultimate fact determined by a prior judgment may not be relitigated between the same parties in a subsequent action." (Emphasis added) ). In fact, the Mississippi Supreme Court has held that collateral estoppel "doesn't work at all in criminal cases." Id. "This is so because by no stretch of the imagination can a not[-]guilty verdict be said to establish affirmatively that the defendant was innocent of the crime." Id. Instead, it:

means that the jury failed to find beyond a reasonable doubt that the defendant was guilty. The jury may well have concluded that there was strong evidence against the defendant though of a lesser dignity than beyond a reasonable doubt. For example, the jury may have found by a preponderance of the evidence that the defendant was guilty. The jury may even have considered that the evidence of guilt was clear and convincing but because it did not rise to the dignity of beyond a reasonable doubt nevertheless, taking their oaths seriously, the jurors returned a not[-]guilty verdict.

Id. It is the prohibition against double jeopardy, rather than collateral estoppel, that precludes re-prosecution of a defendant who had been acquitted incident to a prior trial. Id. at 332 (¶ 7).

¶ 39. Regardless of the precise legal terminology, Garner's argument is essentially that Stewart's acquittal for conspiracy must result in her own acquittal. The Fifth Circuit Court of Appeals has rejected a practically identical claim and held that the acquittal of all other alleged co-conspirators does not prevent an accused from being convicted of the same conspiracy. United States v. Zuniga-Salinas , 952 F.2d 876, 878 (5th Cir. 1992). This is because the acquittal of the alleged co-conspirators may have been the result of mistake, compromise, or lenity. Id. Although Zuniga-Salinas is not binding precedent, we agree with its reasoning. Thus, Stewart's acquittal for conspiracy-in and of itself-has no impact on Garner's conviction for the same offense.

¶ 40. That leaves Garner's claim that there was insufficient evidence to find her guilty of conspiracy to commit wire fraud. More specifically, Garner claims that there was insufficient evidence that she and Stewart had an agreement to commit wire fraud. As we review this issue, we consider the evidence in the light most favorable to the State. Graham v. State , 204 So.3d 329, 336 (¶ 21) (Miss. Ct. App. 2016). "If any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt, [an appellate c]ourt will not disturb the verdict." Graham v. State , 120 So.3d 382, 387 (¶ 18) (Miss. 2013).

¶ 41. "A conspiracy occurs when two or more [people] agree to accomplish an unlawful purpose, or agree to accomplish a lawful purpose unlawfully." Id. at (¶ 19). "A conspiracy is a completed offense and does not require proof of an overt act in furtherance of the conspiracy." Id. "[N]o express agreement is required; an agreement can be inferred from the surrounding circumstances, such as the declarations, acts[,] and conduct of the alleged conspirators." Id. The government may prove that someone is guilty of conspiracy "entirely by circumstantial evidence," but there must be "some evidence that a defendant has associated [her]self with the venture in some fashion, participated in it as something that [s]he wished to bring about, or sought by [her] action to make it succeed." Id.

¶ 42. The prosecution essentially alleged that Stewart and Garner had an agreement to induce Gordon to wire Stewart a $200 referral fee by fraudulently representing that Garner was a nurse. The problem is the complete lack of evidence, direct or circumstantial, that Stewart knew Garner was not a nurse. Stewart was not called as a witness during Garner's trial. No evidence even suggested that Stewart knew Garner was not a nurse. "An individual acting alone and without a partner may not conspire ...." Mitchell v. State , 572 So.2d 865, 867 (Miss. 1990) (citing James v. State , 481 So.2d 805, 808 (Miss. 1985) ("One who 'conspires' with himself ... is not guilty of the crime of conspiracy in this state.") ). "The union of the minds of at least two persons is a prerequisite to the commission of the offense, or, stated differently, at least two persons must agree for a conspiracy to exist." James , 481 So.2d at 808. "It is not required before one may be guilty of conspiracy that he either initiate the plan or have intended to pull the trigger himself. So long as the accused has knowingly undertaken to play a part in a common plan [to commit an unlawful act], he is guilty of conspiracy." Id. at 810. Garner was not accused of wire fraud by using Stewart as an instrument to support her claim to be a nurse. Viewing the evidence in the light most favorable to the State, there was no evidence of a union of Stewart's and Garner's minds regarding the fact that Garner was not a nurse. Said differently, the record is silent as to whether Stewart earnestly believed that Garner was a nurse. It follows that reasonable jurors could not have found Garner guilty of conspiracy. See Lee v. State , 756 So.2d 744, 747 (¶ 10) (Miss. 1999) ("The evidence was insufficient to show a recognition on the part of the conspirators that they [we]re entering into a common plan and knowingly intend[ed] to further its common purpose."). Consequently, we reverse the circuit court's judgment finding Garner guilty of conspiracy to commit wire fraud and render a judgment of acquittal to that charge.

CONCLUSION

¶ 43. The circuit court did not err when it allowed the expert testimony challenged above. And although Stewart's acquittal for conspiracy did not preclude Garner's conspiracy conviction as a matter of law, the circuit court erred when it denied Garner's JNOV motion challenging her conviction for conspiracy to commit wire fraud. Garner's conviction for depraved-heart murder is affirmed, and her conspiracy conviction is reversed and rendered.

¶ 44. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

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

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

¶ 45. In this case, I would affirm the judgment and conviction of the circuit court, including Garner's conviction for conspiracy to commit wire fraud. I find that the majority misapplied the law as to the conspiracy to commit wire fraud charge as set forth in Count III of Garner's indictment. I therefore concur in part and dissent in part with the majority's opinion. The majority states that the record contains no evidence, direct or circumstantial, that Stewart earnestly believed that Garner was a nurse. Upon its determination that no evidence exists to show a union of Stewart's and Garner's minds regarding the fact that Garner was not a nurse, the majority finds that the circuit court erred by denying Garner's motion for a judgment notwithstanding the verdict (JNOV) challenging her conviction for conspiracy to commit wire fraud. The majority then reverses Garner's conviction for conspiracy to commit wire fraud (Count III) and renders a judgment of acquittal as to that charge.

¶ 46. When reviewing the sufficiency of the evidence, we "must give the State the benefit of all favorable inferences that may reasonably be drawn from the evidence." Cowart v. State , 178 So.3d 651, 666 (¶ 41) (Miss. 2015) (internal quotation marks omitted). The supreme court has explained that "if any rational trier of fact could have found each and every one of the elements of the crime beyond a reasonable doubt, when viewing the evidence in the light most favorable to the prosecution, the verdict must stand." Id.

¶ 47. Count III of Garner's indictment charged as follows:

[B]ased on a series of acts connected together and constituting parts of a common scheme or plan, on or about March 16, 2012, in Hinds County, Mississippi, [Garner] did conspire with another person to commit a crime, to-wit: on or about March 16, 2012, [Garner] and [Stewart] did willfully, unlawfully, and feloniously, corruptly agree, conspire and confederate, each with the other, to commit wire fraud, in violation of [s]ection 97-19-83 ... by making or causing to be made a false representation to [Gordon] that [Garner] was a licensed medical professional when in fact she was not, and by causing the transfer of two hundred dollars ($200.00) from [Gordon] to [Stewart] by the use of a Green Dot card, and for the purpose of executing such scheme or artifice or attempting so to do, transmitted or caused to be transmitted by mail, telephone, wire, electromagnetic waves, microwaves, or other means of communication or by person, any writings, signs, signals, pictures, sounds, data, or other matter across county or state jurisdictional lines, in direct violation of [s]ection 97-1-1(a)[.]

¶ 48. Jurisprudence reflects that "the elements of a conspiracy 'require recognition on the part of the conspirators that they are entering into a common plan and knowingly intend to further its common purpose.' " Berry v. State , 996 So.2d 782, 786-87 (¶ 12) (Miss. 2008) (quoting Sanderson v. State , 883 So.2d 558, 560 (¶ 8) (Miss. 2004) ). To prove conspiracy, the State must "show that two or more persons agreed to commit a crime or agreed to accomplish an unlawful purpose." Id. at 787 (¶ 12) (quoting Morgan v. State , 741 So.2d 246, 255 (¶ 26) (Miss. 1999) ). However, the State is "not required to show that the parties entered an express or formal agreement. A conspiracy can be proven by the acts and conduct of the alleged conspirators and can be inferred from the circumstances." Id. at (¶ 13). This Court has also held that "conspiracy can be proven entirely by circumstantial evidence." Thomas v. State , 180 So.3d 756, 762 (¶ 19) (Miss. Ct. App. 2015) (internal quotation marks omitted).

¶ 49. Turning to review the evidence presented at trial, the transcript reflects that Barber testified that Gordon and Stewart communicated via email over several years regarding Gordon's desire to receive butt enhancements. The State submitted evidence showing that in one email Gordon sent to Stewart, dated November 14, 2011, Gordon told Stewart that she "is still looking for a good butt job like yours. If you are interested in helping me with a referral please give me a call." Gordon also told Stewart that she would compensate her "for this secretive information." Barber testified that Stewart refused to give Gordon the information over the phone, so Barber and Gordon flew to New York in February 2012 to meet Stewart. Barber stated that while in New York, Stewart told Barber and Gordon that "a lady named Tracey" performed her butt injections, and had been doing so for years.

Barber testified that Stewart expressly represented to her and Gordon that Garner was a nurse. Barber testified that during the New York trip, she and Gordon became aware that Stewart wanted $200 for a referral fee for providing Garner's information to them: "We knew about the Green Dot referral fee ever since New York."

¶ 50. Barber stated that on March 16, 2012, she and Gordon traveled from Atlanta, Georgia, to Jackson, Mississippi, so that Gordon could receive butt injections from Garner. According to Barber, as soon as she and Gordon arrived in Jackson, they stopped at a Walgreens so that Gordon could obtain a Green Dot MoneyPak card to wire $200 to Stewart. Barber testified that Stewart had originally planned to meet them at Garner's house, but the morning of the trip, Stewart informed Gordon that she was not going to be in Jackson that day. Barber stated that "before [they] left Atlanta[,] Gordon was on the phone with [Stewart] and [Stewart] was on speakerphone saying that she was going to be here so that's why [Gordon] had to get the Green Dot."

¶ 51. Barber also testified that on the morning of the trip, Garner and Gordon had been in communication, and Garner gave Gordon an address, which Gordon wrote down. Barber testified that she originally thought Gordon wrote down Garner's address, but it was actually the address to the Walgreens. Barber explained that "[she] found out throughout this investigation that that address that [Gordon] wrote was never to [Garner's] house[,] it was to the Walgreens so [Gordon] could wire the money over to [Stewart] before she [could] even find out where [Garner's] house [was] at." On redirect examination, Barber also clarified that Garner, not Stewart, sent Gordon the directions to Walgreens:

Q. Real quick, Ms. Barber, just so we're clear[,] the directions that you received that morning[,] who were they from?
A. [Garner].
Q. Okay. Now, these directions were not to [Garner's] house, were they?
A. No, it was to the Walgreens.
Q. And before you got to [Garner's] house you had to wire the money to [Stewart]; right?
A. Yes, she did.

¶ 52. Barber testified that after arriving at Walgreens, Gordon paid the $200 toward the Green Dot MoneyPak from Walgreens, but that she (Barber) texted the numbers to Stewart to complete the wire process. Barber stated that she and Gordon later received confirmation from Stewart telling them that she had received the $200. Barber and Gordon then called Garner, who gave them directions to her house.

¶ 53. Barber testified that when she and Gordon arrived at Garner's house, Garner "was standing in scrubs and she did say she was a nurse and we went from there." Barber stayed in a "little waiting area" in Garner's house while Garner and Gordon went into another room. Barber testified that immediately after Garner injected Gordon, Gordon informed Barber that she was in pain. Barber testified that Gordon started coughing before they even left Garner's house. According to Barber, Garner suggested that Gordon take Benadryl and cough syrup.

¶ 54. While traveling back to Atlanta, Barber testified that Gordon was vomiting and having trouble breathing. Barber stated that she had to stop multiple times to let Gordon defecate on the side of the road. Barber testified that she and Gordon called Stewart and relayed Gordon's symptoms to her. Stewart assured them that she had similar symptoms after receiving injections, and she suggested that they stop and get a breathing treatment. Stewart told them not to stop at any hospitals on the way back to Atlanta. Stewart also instructed them "not to tell what happened and to say that [Gordon] was a smoker[.]" Barber testified that Gordon did not want her to stop at a hospital, explaining that Gordon "was listening to them, listening to what they said," and that Gordon wanted to "wait it out."

¶ 55. The record reflects that Helene Youngblood, the administrator of Willow Creek Nursing Home, testified that Garner worked at the nursing home from October 2000 through December 2010. Youngblood stated that Garner worked at the nursing home as a cook in the dietary department, and not as a nurse. The jury also heard testimony from representatives from the Mississippi State Board for Massage Therapy and the Mississippi State Board of Medical Licensure stating that Garner was not a licensed massage therapist or nurse. The record also shows evidence seized from Garner's residence included numerous needles, large-gauge syringes labeled "for veterinary use only," ten bottles of superglue, cotton balls, a massage table, and a large container of silicone.

¶ 56. Nicole Murlowski, a representative from Green Dot Corporation, explained that "[a] Green Dot MoneyPak is used to load cash onto a prepaid debit card, so you then have the ability to purchase and pay and swipe transactions, debit transactions, online transactions." Murlowski testified that every Green Dot transaction and purchase goes through servers in Las Vegas, Nevada, and Los Angeles, California. Murlowski testified that at 11:30 a.m. on March 16, 2012, a MoneyPak pin was purchased at Walgreens and loaded onto an account later that day. Murlowski stated that according to her records, Stewart received the $200 from the Walgreens Green Dot MoneyPak transaction. Shannon Brown, regional operations manager for Regions Bank, also provided testimony that $1,500 in cash was deposited into Garner's account at 4:27 p.m. on March 16, 2012.

¶ 57. Lee McDivitt, an investigator with the Mississippi Attorney General's Office, testified that he subpoenaed Stewart's and Garner's phone records from AT & T. Investigator McDivitt stated that according to these records, there were a total of sixteen calls between Garner and Stewart on March 15 and 16, 2012. Yehoshua Blauch, an AT & T employee, also testified that Stewart's and Garner's phone records reflected sixteen calls between them on March 15 and 16, 2012.

¶ 58. The indictment reflects that Garner and Stewart were named as conspirators, and the record reflects sufficient evidence of the elements of the charged conspiracy upon which the jury could find Garner guilty beyond a reasonable doubt. See Cowart , 178 So.3d at 666 (¶ 41). After reviewing the evidence presented at trial, I submit that the record contains sufficient evidence to show that Garner did conspire with Stewart to commit wire fraud by making a false representation to Gordon that Garner was a licensed nurse, when in fact Garner was not a licensed nurse, causing Gordon to transfer $200 to Stewart. I would therefore affirm the judgment of the circuit court.

      Emails in the record show that in August 2010, Gordon had contacted at least one other person via an email address that she found on a "forum on butt enhancement." That led to an offer for an "inhouse visit" or to ship Gordon "the item [she] want[ed]." Further discussion led to "Jermey's" offer to perform some service valued at $1,275 for a procedure that would be "off the books" because it could result in Jermey losing his "practice." At trial, it was disputed whether Gordon had injections prior to March 2012.

      Garner died during the pendency of this appeal. Her brother, Sylvester Garner, has successfully moved to be substituted as a party. See M.R.A.P. 43(a) ; Gollott v. State , 646 So.2d 1297, 1305 (Miss. 1994).

      Effective July 1, 2016, Rule 702 was "amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules." M.R.E. 702 advisory committee's note. We quote the version of Rule 702 that was in effect at the time of Garner's trial.

      We recognize that "[a]n out-of-court statement is not hearsay if the statement is offered against a party and is a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." Farris v. State , 764 So.2d 411, 429 (¶ 60) (Miss. 2000) (quoting M.R.E. 801(d)(2)(E) ) (internal quotation marks omitted); see also Garrison v. State , 726 So.2d 1144, 1150 (¶ 16) (Miss. 1998) (quoting M.R.E. 801(d)(2)(E) ) (internal quotation marks omitted) ("[A] statement by a co-conspirator of a party during the course and in furtherance of the conspiracy is not hearsay."). We review the trial court's admission or suppression of testimony for an abuse of discretion. Anderson v. State , 62 So.3d 927, 933 (¶ 13) (Miss. 2011).

      The trial testimony reflects the following exchange:
      Q. You just told us that you had [Garner's] number; right?
      A. She had [Garner's] number. [Garner] gave her the address to the Walgreens. Those addresses, those notes that she wrote down, those address[es] came from [Garner]. We [were] thinking it's the house but it was to the Walgreens.


author: WILSON, J., FOR THE COURT:

text:
    Sanford MASON, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00415-COA
    Court of Appeals of Mississippi.
    May 22, 2018
    ATTORNEY FOR APPELLANT: SANFORD MASON (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART
    BEFORE IRVING, P.J., WILSON AND TINDELL, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. In 1982, Sanford Mason was tried and convicted of the crime of rape in the Oktibbeha County Circuit Court. The jury returned a guilty verdict and also found that Mason should serve a life sentence. The court sentenced Mason to serve a life term without parole as a habitual offender. The Mississippi Supreme Court affirmed Mason's conviction and sentence on direct appeal. Mason v. State , 440 So.2d 318 (Miss. 1983).

¶ 2. In 2013, Mason filed an application in the Mississippi Supreme Court for permission to file a petition for post-conviction relief in the circuit court. His application sought DNA testing of certain evidence allegedly available. The State agreed that Mason should be allowed to file a petition in the circuit court, and a panel of the Supreme Court granted Mason's application for leave to proceed. Mason v. State , No. 2013-M-00253 (Miss. June 10, 2013).

¶ 3. After Mason filed his petition in the circuit court, the court appointed counsel to represent him. Mason's attorney searched diligently for a rape kit and other physical evidence related to the case, but no such evidence could be found. The circuit court held a hearing on February 6, 2015. The circuit clerk and witnesses from the City of Starkville Police Department and the Oktibbeha County Sheriff's Department all testified that they, along with Mason's attorney, searched diligently for physical evidence from the case but had found no such evidence. A former deputy circuit clerk from Oktibbeha County testified that sometime after 1989, and probably closer to 2000, there was significant flooding in the county courthouse. Raw sewage had spilled from a bathroom in the tax assessor's office into an exhibit room located below, and about twenty-five percent of the items stored in the exhibit room were destroyed or unsalvageable. The former deputy circuit clerk testified that, based on her contemporaneous handwritten notes, she believed that the physical evidence from Mason's case was destroyed as a result of the flooding. During the hearing, Mason and his attorney acknowledged that there was no proof that any of the evidence was destroyed intentionally. Mason also agreed that his appointed counsel had done all that she could to search for the evidence.

¶ 4. After the hearing, the circuit judge entered an order closing the case. The judge found "that no physical evidence remains in this case to be tested because of its apparent physical destruction." The judge further found "that the destruction was not an intentional act of any party"; rather, the flooding of the courthouse exhibit room years after Mason's trial had made "any attempt at preservation impossible." As there was no evidence to be tested, the court found that Mason's petition for post-conviction relief was moot. Mason filed a notice of appeal. On appeal, he contends that the destruction of the rape kit and other evidence collected during the investigation of his case violates due process.

¶ 5. This Court addressed a similar claim in Chapman v. State , 47 So.3d 203, 209 (¶¶ 21-23) (Miss. Ct. App. 2010), cert. denied , 63 So.3d 1229 (Miss. 2011). In 2005, Chapman sought DNA testing of biological evidence related to his 1982 rape conviction. However, no such evidence was available because it had been destroyed pursuant to a court order in 1985. Id. at 205 (¶¶ 2-3). This Court first noted that our Legislature had enacted procedures and requirements regarding the preservation of DNA evidence, but the law was not enacted until 2009, years after the evidence in Chapman's case was destroyed pursuant to a court order. Id. at 209 (¶ 21) (citing Miss. Code Ann. § 99-49-1 ). The same is true in this case. Therefore, as in Chapman , the 2009 law "has no application here." Id.

¶ 6. In Chapman , we also discussed that, at least prior to a conviction, "[t]he State has 'a duty to preserve evidence which might be expected to play a significant role in the suspect's defense.' " Id. at (¶ 22) (internal quotation mark omitted). However, to establish a violation of this duty, the defendant must show, among other things, that the State "acted in bad faith in failing to preserve the potentially exculpatory evidence." Id. ; accord Ariz. v. Youngblood , 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) ("[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law."). Chapman's claim failed because there was no evidence of bad faith on the part of the State. Chapman , 47 So.3d at 209 (¶ 23). As the circuit judge in this case found, the same is true here. Therefore, the circuit court correctly ruled that Mason is not entitled to post-conviction relief.

¶ 7. AFFIRMED.

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

      The record indicates that Mason was placed at the crime scene based on two latent palm prints, one found near the perpetrator's point of entry into the victim's home and the other found on an air conditioning unit outside the victim's bedroom window. A rape kit was collected from the victim at the time of the crime. The record indicates that testing of the rape kit revealed the presence of acid phosphatase, an enzyme found in seminal fluid, and intact spermatozoa; however, the stain collected was, in 1982, an amount insufficient for further testing. Contemporaneous testing of various other physical evidence showed only that the perpetrator had type A blood, like Mason.

      In considering the denial of a motion for post-conviction relief, we will not disturb the circuit court's "factual findings unless they are found to be clearly erroneous." Manning v. State , 158 So.3d 302, 304 (¶ 4) (Miss. 2015).