MISSISSIPPI SUPREME COURT OPINIONS HAND DOWN DATE: 4/19/2018

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1 MISSISSIPPI SUPREME COURT OPINIONS HAND DOWN DATE: 4/19/2018 FORREST GENERAL HOSPITAL v. UPTON, NO IA SCT CONSOLIDATED WITH NO IA SCT Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Medical malpractice - Transfer of venue - M.R.C.P Multiple defendants - Section (3) - Section (2) - Relation back of amended complaint - M.R.C.P M.R.C.P M.R.C.P. 9(h) HON. WINSTON L. KIDD HINDS COUNTY CIRCUIT COURT WALTER W. DUKES, JAMES K. DUKES, DRURY S. HOLLAND, MICHAEL R. MOORE, JOHN A. BANAHAN, DAVID B. MILLER DREW M. MARTIN, CHUCK McRAE, CHRISTOPHER A. BAMBACH Justice Chamberlin Reversed and remanded. Facts: Analysis: Steven Upton filed suit in the Hinds County Circuit Court against Forrest County; Forrest General Hospital; Dr. J. Keith Thompson; Dr. Grif A. Leek; Hattiesburg Clinic, P.A.; and South Mississippi Emergency Physicians, P.A. The complaint also named John and Jane Does #1 10. All of the named defendants were located and had acted in Forrest County. The complaint claimed that venue is proper in Hinds County, Mississippi, pursuant to Miss. Code Ann as the acts or omissions that serve as the basis of the Plaintiff s claims continued to occur and, additionally, were discovered in Hinds County, Mississippi. The complaint alleged five counts: negligence, gross negligence, respondeat superior, negligent infliction of emotional distress, and breach of fiduciary duty. Also, the complaint did not name UMMC as a defendant but stated that UMMC promptly and properly treated to attempt to correct Upton s kidney failure. Thereafter, Upton filed his First Amended Complaint. For the first time, Upton named UMMC and Dr. Sumona Smith as defendants. The amended complaint still named the Forrest County defendants and John and Jane Does # In the amended complaint, Upton claimed that UMMC failed to properly monitor [Upton]. Also, the amended complaint still mentioned UMMC s treatment of Upton s kidney failure but omitted the language that the treatment was done promptly and properly. Leek, SMEP and FGH filed motions to dismiss or, in the alternative, for severance and transfer to Forrest County. Forrest County and UMMC also requested to be dismissed from the suit. After a hearing, the court entered an order denying the defendants motion to transfer venue. It found that venue of this action lies appropriately in either Hinds County or Forrest County and that the plaintiff s choice of Hinds County is appropriate. The Supreme Court granted an interlocutory appeal. The question on appeal is whether or not the trial court erred by refusing to transfer venue from Hinds County to Forrest County. Thompson, Leek, HC and SMEP argue that venue is determined at the time of filing. Upton argues that if venue is good as to one defendant it is Page 1 of 12

2 good as to all. Of right, the plaintiff selects among the permissible venues, and his choice must be sustained unless in the end there is no credible evidence supporting the factual basis for the claim of venue. Venue is determined at the time that the lawsuit is filed. In suits involving multiple defendants, where venue is good as to one defendant, it is good as to all defendants. M.R.C.P. 82(c) addresses suits with multiple claims and parties. It reads, in part: Where several claims or parties have been properly joined, the suit may be brought in any county in which any one of the claims could properly have been brought. M.R.C.P. 82(d) provides that [w]hen an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as though originally filed therein. Here, venue was not proper in Hinds County at the time of filing. The initial complaint named only the Forrest County defendants and the John and Jane Does # Upton s complaint did not allege that any of the fictitious John or Jane Does resided or acted in Hinds County. Moreover, none of the named defendants in the original complaint was a resident of Hinds County. Also, the Forrest County defendants treated Upton only in Forrest County, not Hinds County. Upton does not argue that the original complaint established venue. Instead, Upton argues that the amended complaint properly joined UMMC and relates back to the time of filing the suit. Thus, venue was improper in Hinds County when the suit was filed. Suits against HC, SMEP, Thompson and Leek all are governed by section (3), which requires that they be sued only in the county in which the alleged act or omission occurred. Under section (2), FGH, a community hospital, shall be sued only in the county or judicial district thereof in which the principal offices of the governing body of the political subdivision are located. Upton argues that the addition of UMMC in the amended complaint relates back to the time of filing of the original suit for the purpose of determining venue. In addition to the language of M.R.C.P. 82(d), M.R.C.P. 21 provides that [p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Whether an addition of a party relates back under M.R.C.P. 15 for the determination of venue is an issue of first impression. The claims against UMMC in the second complaint did not arise out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. The amended complaint added two new defendants (UMMC and Smith) and described new conduct (delay in treatment) that was not mentioned or intimated in the original complaint. The original complaint cites UMMC s numerous procedures and treatments... to save Mr. Upton s hand. The original complaint also notes that UMMC promptly and properly treated Upton s kidney failure. In contrast, the amended complaint for the first time referenced Smith s decision to delay treatment and omitted the reference to any prompt[] and proper[] treatment by UMMC. While the original complaint partially described Upton s treatment at UMMC, no allegations, claims or facts were pleaded against UMMC. Upton did not attempt to add UMMC as a fictitious party under M.R.C.P. 9(h). Clearly, Upton knew of UMMC and UMMC s treatment before the filing of the original complaint. A plain-language interpretation of the ordinary meaning of the Mississippi Rules of Civil Procedure supports the conclusion that the addition of a party to a suit does not relate back under Rule 15 for the purposes of determining venue. As the amendment of UMMC does not relate back to the date of the original filing, the trial court abused its discretion in denying the motions to transfer venue. SPECIALLY CONCUR Justice Coleman joined by Chief Justice Waller Page 2 of 12

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4 BEARD v. CITY OF RIDGELAND, NO CC SCT Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Real property - Amendments to zoning ordinances - Rezoning - Goal of zoning regulations - Section Section Prohibited uses - Spot zoning - Standing HON. JOHN HUEY EMFINGER MADISON COUNTY CIRCUIT COURT WILLIAM DEMENT DRINKWATER, NORMAN ELVIN BAILEY, JR., SHELDON G. ALSTON JERRY L. MILLS, JOHN PRESTON SCANLON Justice King Reversed and rendered. Facts: Analysis: Shortly after the adoption of its current comprehensive zoning ordinance and map, the City of Ridgeland adopted an amendment to the zoning ordinance, creating as a permitted use in general commercial districts a Large Master Planned Commercial Development. The amendment allowed uses previously prohibited in C-2 districts and created an opportunity for the potential location of a Costco Wholesale off Highland Colony Parkway. Appellants Gerald Beard, Charles Michel, Harold Byrd, Nils Mungan, George Shepard Jr., Matthew DeShazo, William Aden, Thomas Rice III, and Joel Payne Jr., residents of the City who live in nearby neighborhoods, appealed the City s decision. The circuit court affirmed the zoning amendments. Because the applicant s site plan must be approved by the City before any land may be defined as a LMPCD, the trial court found that no rezoning had occurred. The circuit court also found that the amendment could apply equally to seventeen different C-2 districts, not solely to the Costco site. Therefore, the trial court held that the amendment did not constitute a rezoning or spot-zoning. The appellants appeal. Issue 1: Amendments to zoning ordinances The Appellants argue that the City s decision to amend the zoning ordinance materially changed the uses previously allowed in C-2 districts and thus can be valid only upon a showing of substantial change in neighborhood character. Before property is reclassified from one zone to another, there must be proof either that there was a mistake in the original zoning or the character of the neighborhood has changed to such an extent as to justify rezoning and that public need exists for rezoning. The zoning amendments at issue here allow any site approved as a Large Master Planned Commercial Development to be allowed uses previously prohibited in C-2 districts but permitted in C-2A districts, such as: banks, branch banks, drive-through ATMS, and other banking facilities; food-product and carry-out and delivery stores; and laundry and dry-cleaning pickup stations. According to the 2014 Zoning Ordinance, C-2A districts are allowed those additional uses because those properties are located on arterial streets and are able to handle the volume of traffic. Moreover, service stations, fast-food restaurants with drive-through, and drive-through pharmacies are not permitted uses in C-2 or C-2A districts. Instead, those uses are permitted in C-3 districts. Therefore, the 2014 zoning ordinance specifically contemplated uses in C-2 and C-3 districts and rejected allowing those additional permitted uses in C-2 districts because of the increase Page 4 of 12

5 in vehicular traffic, noise, and litter associated with those uses. Even according to the City s newly adopted zoning ordinance, the uses allowed in C-3 districts should be located well away from ANY residential uses. There is no merit in the City s argument that the amendments were purely textual amendments. The City of Ridgeland s comprehensive zoning ordinance had been passed mere months before the City sought to change the zoning districts. The amendments effectively rezoned the property by allowing a LMPCD upon approval of the Mayor and Board of Aldermen. The Mayor and Board of Aldermen had complete authority to approve or disapprove a LMPCD without any objective criteria. Because the proposed site is in close proximity to residential neighborhoods, allowing the site effectively to be rezoned to a C-3 district directly goes against the goal of zoning regulations listed in section : to lessen street congestion and prevent overcrowding of land. Although section states that municipal authorities have the power to amend a zoning ordinance from time to time, again, the City had zoned the Costco site as a C-2 site mere months before the City began attempting to rezone the area again. The City failed to show by clear and convincing evidence that a mistake in the original zoning occurred or that a change in the character of the neighborhood occurred that justified rezoning, and a public need existed for the rezoning. Because, almost immediately after adopting a new comprehensive zoning ordinance and map in 2014, the City sought to change the zoning of the proposed Costco site to allow numerous prohibited uses, and because those additional uses effectively transformed the proposed Costco site from a C-2 district to a C-3 district, the City illegally rezoned the property at issue. Issue 2: Spot zoning The Appellants argue that the zoning amendments constituted spot zoning. The term spot zoning is ordinarily used where a zoning ordinance is amended reclassifying one or more tracts or lots for a use prohibited by the original zoning ordinance and out of harmony therewith. A rezoning will be considered illegal spot-zoning if the proposed amendment is for a small parcel of land singled out for special and privileged treatment. Here, the proposed amendments were created and were focused solely on Costco and its activities. City officials worked closely together with the developer and with Costco representatives to shape the ordinance to fit Costco s needs specifically. The City argues that the amendments were consistent with the 2009 Comprehensive Plan. Although the comprehensive plan contemplates absorbing C-3 uses into C-2 or C-2A zones, the City chose not to follow the recommendations of the 2009 Comprehensive Plan when it comprehensively rezoned its districts in Only when Costco chose the site at issue did the City attempt to rezone the proposed location and add C-3 uses into a C-2 zone. Because the City engaged in illegal spot-zoning by singling out a parcel of land for special and privileged treatment, the zoning amendments are arbitrary, capricious, and unsupported by substantial evidence. Issue 3: Standing The City argues that the Appellants have failed to prove that any of the additional convenience uses were inconvenient to them personally in a way not common to the public generally. For a plaintiff to establish standing on grounds of experiencing an adverse effect from the conduct of the defendant/appellee, the adverse effect experienced must be different from the adverse effect experienced by the general public. The Appellants are property owners in the City of Ridgeland, whose properties are located near the proposed Costco site. The Appellants allege that the Costco development would adversely impact them as well as other Ridgeland residents. Moreover, the Costco development is not a minor variance and would greatly increase traffic, as well as change the aesthetics of the area. Accordingly, the Page 5 of 12

6 Appellants do have standing to appeal the zoning amendments. Page 6 of 12

7 ROBINSON v. STATE, NO KA SCT Criminal Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Aggravated assault - Identification instruction - Exclusion of exhibit - M.R.E M.R.E M.R.E. 103(a)(2) - Post-Miranda silence - Weight of evidence - Ineffective assistance of counsel - Prosecutorial misconduct - Delay of indictment - Exculpatory evidence - False testimony - Limit on cross-examination - Closing argument HON. DALE HARKEY JACKSON COUNTY CIRCUIT COURT OFFICE OF THE STATE PUBLIC DEFENDER: HUNTER N. AIKENS, DOMINIC C. ROBINSON (PRO SE) OFFICE OF THE ATTORNEY GENERAL: KAYLYN H. McCLINTON Chief Justice Waller Affirmed. Facts: Analysis: Dominic Robinson was convicted of three counts of aggravated assault and was sentenced to a total of thirty years. He appeals. Issue 1: Identification instruction Robinson argues that a jury instruction impermissibly commented on the weight of the evidence by emphasizing an eyewitness s identification testimony and stating that the testimony of one eyewitness can be sufficient to convict. While the defendant has a right to present his theory of the case through jury instructions, he is not entitled to instructions which incorrectly state the law, have no basis in the evidence, or are covered fairly elsewhere in the instructions. A jury instruction that emphasizes any particular part of the testimony given at trial in a manner as to amount to a comment on the weight of the evidence, is improper. Here, the instruction provides that [t]he identification of the defendant by a single eyewitness, as the person who committed the crime, if believed beyond a reasonable doubt, can be enough evidence to convict the defendant, which is a correct statement of law. The instruction left to the jury the task of judging the credibility of Wright s testimony and weighing it against the other evidence presented at trial. Thus, there is no error. Issue 2: Exclusion of exhibit After the State had rested at Robinson s trial, Robinson attempted to admit into evidence Exhibit D-1, which was an order entered six months after the shooting in this case in a criminal cause in which a witness in Robinson s trial was the defendant. Robinson now argues that the trial court erred in excluding Exhibit D-1. The trial court did not err in finding that Exhibit D-1 was inadmissible under M.R.E. 609, which allows admission of evidence of a criminal conviction evidence under certain circumstances for the purpose of attacking a witness s character for truthfulness. But because the witness s conviction imposed a sentence of less than one year, Exhibit D-1 would be admissible under Rule 609 only if the court can readily determine that establishing the elements of the crime required proving or the witness s admitting a dishonest act or false statement. The elements of Page 7 of 12

8 possession of a controlled substance do not require proof of a dishonest act or false statement, so Exhibit D-1 was not admissible to attack the witness s character for truthfulness under Rule 609. Robinson argues that he intended to use Exhibit D-1 to show that the witness had made a deal with law-enforcement authorities for leniency in his drugpossession case in exchange for his testimony in Robinson s case. He argues that the exhibit was admissible under M.R.E Robinson failed to inform the trial court of the substance of his argument with an offer of proof sufficient to preserve this claim of error as required by M.R.E. 103(a)(2). He never specifically argued Rule 616 as a basis for Exhibit D-1 s admissibility. Thus, his argument is procedurally barred. In addition, Exhibit D-1 has no independent relevance to the issue of the witness s bias, prejudice, or interest. Issue 3: Post-Miranda silence After being read his Miranda warnings when he turned himself in to police, Robinson told the police that he would not speak without his attorney present. Robinson never gave a statement to the police. Prior to trial, the State demanded notice of Robinson s intent to offer an alibi defense, but it received no response. At trial, the following exchange occurred between the prosecutor and Robinson: Q: I got one more question. The whole thing about Mobile and you not being [at the nightclub during the shooting]? A: Yes, sir. Q. First time that s ever been told is to this jury, isn t it? A: Okay; yes, sir. Robinson argues that this was an improper comment on his exercise of his constitutional right to remain silent. Robinson offered an alibi defense by testifying on direct examination that he left the Creme De La Creme and was traveling to Mobile when the shooting occurred. As such, he had a duty to inform the prosecution of his intent to rely on an alibi defense and to disclose certain evidence related to that defense. The State was not made aware of Robinson s alibi defense until he took the witness stand, by which point the State was unable to respond to his defense. Therefore, the prosecutor s question to Robinson about the novelty of his alibi defense to be a comment on his failure to comply with a discovery rule rather than an attempt to attack the credibility of his testimony, and there is no error. Issue 4: Weight of evidence Robinson argues that he is entitled to a new trial because the jury s verdicts were against the overwhelming weight of the evidence. He focuses primarily on several perceived conflicts in the testimony of the State s witnesses. The jury s verdicts were not against the overwhelming weight of the evidence presented at trial. Robinson admitted that he was at the Creme De La Creme nightclub on the night of the shooting and that he was thrown out of the club for attempting to enter the VIP room. Five other witnesses testified that a man matching Robinson s description was thrown out of the club during the concert, and three of these witnesses testified that the man who was thrown out of the club was the shooter. One eyewitness also positively identified Robinson as the shooter. Robinson s arguments are based on conflicts in the evidence and the credibility of the State s witnesses, matters to be decided by the jury. Issue 5: Ineffective assistance of counsel Robinson argues that his trial counsel provided ineffective assistance by failing to file a motion to dismiss the charges against him in a timely manner and by failing to conduct an adequate investigation of the case and interview potential witnesses. Robinson s first claim of ineffective assistance is plainly without merit, because it is based on an incorrect reading of the law. Robinson cites Rule 13.9(c) of the Mississippi Rules of Criminal Procedure to Page 8 of 12

9 support his claim that his attorney failed to file a timely motion to dismiss the charges against him. But the Rules of Criminal Procedure had not yet been enacted at the time of Robinson s trial. And even if those rules did apply to the instant case, Rule 13.9(c) was not adopted into the Mississippi Rules of Criminal Procedure. As for Robinson s second claim, the record does not contain sufficient evidence for review on direct appeal. Thus, it is dismissed so that he may pursue it in a properly filed post-conviction petition. Issue 6: Prosecutorial misconduct Robinson argues that the prosecution engaged in a continuous pattern of misconduct during his trial that rendered the trial fundamentally unfair. No objections were raised to any of the alleged instances of misconduct, and as such, these issues are procedurally barred from review on appeal. Robinson argues that the State committed misconduct by eliciting irrelevant and prejudicial testimony from several witnesses that implied that Robinson may have engaged in other criminal acts for which he was not charged. However, the questions were asked in direct response to questions posed by Robinson on cross-examination. Robinson argues that the State committed misconduct by implying through questions to witnesses and arguments to the jury that Robinson had fled the scene of the crime. Where an accused, on direct examination, seeks to exculpate himself, such testimony is subject to normal impeachment via cross-examination. Here, the State presented evidence that Robinson fled the scene of the crime after shooting two victims. Robinson attempted to explain his flight by testifying on direct examination that he left the nightclub before the shooting occurred and that he had gone to Mobile to sell CDs. On cross-examination, the State was entitled to point out the conflicts between Robinson s testimony and that of the other witnesses. Robinson also argues that the prosecutor improperly expressed his personal opinion on Robinson s guilt during closing argument. Prosecutors have a right to comment on the evidence. Here, the prosecutor was commenting on the sufficiency of the evidence and did not offer a personal opinion concerning the defendant s guilt. Robinson also argues that questions and comments by the prosecutor were inappropriate because they infringed on the jury s right to judge the credibility of the State s witnesses. Most federal courts and several state courts have held that it is improper for a prosecutor to ask a criminal defendant whether an adverse witness was lying on the stand. Here, the prosecutor s questions and comments did not amount to plain error. The prosecutor s statement during closing argument was not improper because it did not ask the jury to consider whether the State s witnesses were lying. The prosecutor simply argued that the jury would have to believe that all of the State s witnesses were wrong in order to acquit Robinson. While the prosecutor should not have asked Robinson whether the testimony of another witness was truthful or a fabrication, the bulk of the prosecutor s questions covered topics of Robinson s prior testimony that did not conflict with that of the State s witnesses. In addition, the jury was instructed that it had a duty to determine the credibility of each witness. Thus, the prosecutor s questions did not affect the fundamental fairness of Robinson s trial and therefore did not amount to plain error. Issue 7: Delay of indictment For a defendant to succeed on a claim that his or her due process rights were violated by a pre-indictment delay in prosecution, he or she must show that the pre-indictment delay prejudiced that defendant, and the delay was an intentional device used by the government to obtain a tactical advantage over the accused. Here, the shooting at the Creme De La Creme occurred on March 6, Robinson was not indicted until seventeen months later. Robinson argues that the delay in his indictment severely impaired his ability to mount an Page 9 of 12

10 effective defense. Because Robinson failed to request dismissal of his indictment based on a violation of his due-process rights, this issue is procedurally barred. In addition, the record contains no evidence supporting Robinson s allegations that the delay in his indictment prejudiced his defense. And while it is true that the State lost some evidence related to Robinson s case, there is no indication that this evidence would have been exculpatory. Robinson has failed to show that the State intentionally delayed his indictment to gain a tactical advantage over him. Issue 8: Exculpatory evidence Detective Savage testified that twelve nine-millimeter bullet casings and several bullet fragments were recovered from the scene of the crime. However, these casings and fragments were lost prior to trial. Robinson argues that the State violated his due-process rights by failing to preserve this evidence. To determine whether the State s failure to preserve evidence violated the defendant s right to due process, the court considers: the evidence in question must possess an exculpatory value that was apparent before the evidence was destroyed; the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; and the prosecution s destruction of the evidence must have been in bad faith. Here, there is no clear indication that the casings and fragments possess any apparent exculpatory value. Additionally, the record contains no evidence that the casings and fragments were destroyed in bad faith. The record indicates that the loss of this evidence was the result of, at most, carelessness on the part of the police department. Thus, there is no error. Issue 9: False testimony Robinson presents several separate assignments of error in which he accuses State witnesses of providing false testimony at his trial. These accusations are based primarily on inconsistencies in the witnesses testimonies, and Robinson interprets these inconsistencies as proof that the State s witnesses were lying on the stand. The prosecution violates the defendant s rights under the Fourteenth Amendment to the United States Constitution when it knowingly presents false evidence or allows it to go uncorrected when it appears. To prove such a violation, the defendant must first demonstrate that a prosecution witness knowingly provided false testimony. Here, Robinson has failed to demonstrate that any of the State s witnesses intentionally lied on the stand. And the testimony cited by Robinson was not material to the outcome of the case. Thus, there is no error. Issue 10: Limit on cross-examination Robinson argues that the trial court erred in prohibiting him from cross-examining a witness about a sexual-assault charge that was pending against the witness at the time of trial. While the State did file a motion in limine seeking to prevent Robinson from admitting evidence of the witness s pending criminal charge, the trial court never ruled on that motion. Thus, the trial court did not limit Robinson s right to cross-examine the witness. And the witness s criminal charge was not relevant to his interest in testifying. Issue 11: Closing argument Robinson argues that the prosecutor incorrectly stated during closing argument that a witness identified him as the shooter. Because Robinson failed to object to the prosecutor s comment at trial, this argument is procedurally barred. In addition, it is without merit. The Page 10 of 12

11 prosecutor did not incorrectly state that the witness had identified Robinson specifically as the shooter. DISSENT Presiding Justice Kitchens joined by Justice King Page 11 of 12

12 MOORE v. STATE, NO KA SCT Criminal Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Murder - Circumstantial evidence instruction HON. ROBERT P. CHAMBERLIN DeSOTO COUNTY CIRCUIT COURT OFFICE OF THE STATE PUBLIC DEFENDER: W. DANIEL HINCHCLIFF, GEORGE T. HOLMES OFFICE OF THE ATTORNEY GENERAL: ABBIE E. KOONCE, JOE HEMLEBEN Presiding Justice Kitchens Reversed and remanded. Facts: Analysis: Everett Moore was convicted of second-degree murder and sentenced to thirty years. He appeals. Moore argues that the trial court erred in refusing his circumstantial evidence instruction. Where the State is without a confession and wholly without eyewitness testimony to the gravamen of the offense charged, the defendant is entitled to an instruction requiring the jury to exclude every other reasonable hypothesis other than that of guilt before a conviction can be had. Here, the State has produced neither Moore s confession nor an eyewitness to the gravamen of the offense charged. The gravamen of the crime is the actual shooting of the victim. The State claims that Moore s fingerprints on the victim s car, the video evidence of the vehicles, the broken glass and shell casing, the witness who observed Moore driving past him at a high rate of speed, and the other videos amount to direct evidence that Moore shot the victim. An inference that Moore shot the victim does arise from the evidence. But evidence that implicates the defendant by inference is circumstantial evidence, without regard to how persuasive the inference appears to be. The State argues that video evidence can constitute direct evidence of the crime. However, the surveillance videos here showed only Moore s encounter with the victim in the Syncreon parking lot and the close proximity of Moore s vehicle to the victim s just before the victim s vehicle careened out of control. An inference arises from this circumstantial evidence that the victim did, in fact, shoot Moore. But inferences do not amount to direct evidence. Thus, the conviction is reversed and the case remanded. DISSENT Justice Maxwell joined by Presiding Justice Randolph and Justice Beam Page 12 of 12