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July 24, 1998
JOANNE MELCHIOR, Plaintiff,
KENNETH S. APFEL, 1 COMMISSIONER OF SOCIAL SECURITY, Defendant.
This matter is brought pursuant to §§ 205(g) & 1631(b)(3) of the Social Security Act ("Act"), as amended, 42 U.S.C. §§ 405(g) & 1383(c)(3), to review a final determination of the Commissioner of Social Security ("Commissioner"), denying the plaintiff's claim of Supplemental Security Income. The parties have filed their briefs, including the Administrative Record on Appeal, and the matter has been submitted to this court without oral argument.
On September 19, 1994, the plaintiff filed an application for Supplemental Security Income benefits pursuant to Title XVI of the Act. The application was denied initially and again on reconsideration. Subsequently, the plaintiff made a request for a hearing before an Administrative Law Judge ("ALJ"). As a result, ALJ Alfred R. Tyminski conducted a hearing in Syracuse, New York on July 19, 1995. Following the hearing, on September 12, 1995, the ALJ concluded that the plaintiff was not disabled, and therefore not entitled to Supplemental Security Income benefits.
On February 22, 1997, the Appeals Council rejected plaintiffs request for review of the September 12, 1995 hearing decision. Consequently, the ALJ's decision became the final decision of the Commissioner. Plaintiff now brings this appeal. This court must determine if the findings of the Commissioner of Social Security are supported by substantial evidence.
This Court adopts the facts set forth in the plaintiff's brief with any exceptions as noted.
Plaintiff contends that the ALJ's decision was erroneous for the following reasons:
1. The ALJ erred in failing to find that the plaintiffs asthma met the criteria of a listed impairment in appendix 1, subpart p, regulations No. 4.
2. The ALJ's determination that the plaintiff is not disabled is not supported by substantial evidence.
1. Standard of Review
A court's review of the Commissioner's final decision is limited to determining whether there is substantial evidence in the record to support such decision. Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). Substantial evidence is "such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Rivera, 923 F.2d at 967(quoting Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971)). "To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)(citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 95 L. Ed. 456, 71 S. Ct. 456 (1951), Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983)). However, a reviewing court must not substitute its interpretation of the administrative record so long as there exists substantial support for the decision in the record. Williams, 859 F.2d at 258.
Additionally, the scope of review involves determining both whether the Commissioner has applied the correct legal standard and whether the determination is supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). Thus, where there is a reasonable basis for doubting whether the Commissioner applied the appropriate legal standard, even if the ultimate decision may be arguably supported by substantial evidence, the Commissioner's decision may not be affirmed. Johnson, 817 F.2d at 986.
2. Five-Step Disability Determination
The regulations of the Commissioner mandate that the ALJ follow a five step evaluation process to determine whether an individual is disabled.
See Singletary v. Apfel, 981 F. Supp. 802, 805 (W.D.N.Y. 1997)(citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)). Step One requires the ALJ to determine whether the claimant is presently engaged in substantial gainful activity ("SGA"). § 416.920(b). If a claimant is engaged in SGA, they will not be considered disabled. If the claimant is not engaged in SGA, Step Two requires the ALJ to determine whether the claimant has a severe impairment. § 416.920(c). If the claimant is found to suffer from a severe impairment, Step Three requires the ALJ to determine whether the claimant's impairment meets or equals an impairment listed in Appendix 1, Subpart P. § 416.920(d). If the impairment meets or equals a listed impairment, the claimant is presumptively disabled. Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). If the claimant is not presumptively disabled, at Step Four the ALJ must consider whether claimant's residual functional capacity ("RFC") precludes the performance of past relevant work. § 416.920(e). At Step Five, the ALJ determines whether the claimant can do any other work. § 416.920(f).
The claimant has the burden of showing that they cannot perform past relevant work. Ferraris, 728 F.2d at 584. However, once the claimant meets that burden, the Commissioner can deny benefits only by showing, by specific reference to medical evidence, that the claimant can perform some less demanding work. See White v. Secretary of HHS, 910 F.2d 64, 65 (2d Cir. 1990); Ferraris, 728 F.2d at 584. In making this showing the ALJ must consider the claimant's RFC, age, education, past work experience, and transferability of skills to determine if the claimant can perform other work existing in the national economy. § 416.920(f); see New York v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990); see also Ferraris, 728 F.2d at 585 (four factors used to determine if claimant can perform other work: age, education, physical ability, and work experience)(citing 42 U.S.C. 423(d)(2)(A)).
In the instant case, the ALJ found that the plaintiff met the requirements of Step One because she has not engaged in substantial gainful employment since September 19, 1994. (Tr. 44). The ALJ also determined that the plaintiff suffered from asthma, mild chronic obstructive pulmonary disease, and depression.
Id. However, in applying the Third Step, the ALJ determined that the plaintiff does not have an impairment or combination of impairments listed in, or medically equivalent to one listed in Appendix 1, Subpart P, Regulations No. 4. Id. At Step Four, the ALJ determined that the plaintiff was unable to perform her past relevant work as a restaurant cashier and motel housekeeper. Id. Therefore, the ALJ proceeded to Step Five and determined that the plaintiff was capable of performing sedentary work activities with the limitation that she avoid exposure to excessive smoke, fumes, chemicals, and noxious gases. Id. The ALJ's findings at the Fifth Step are in contention.
3. Step Five - Determination of Claimant's Ability to Perform Other Work
After considering the medical evidence and plaintiff's subjective complaints of pain, the ALJ determined that the plaintiff retained the residual functional capacity to perform sedentary work in a controlled environment where she would not be subjected to excessive smoke, fumes, chemicals, and noxious gases. (Tr. 42). However, the plaintiff maintains that her asthmatic condition meets or equals the listing for episodic respiratory disease found in Appendix 1, Subpart P, Regulations No. 4, § 3.00C.
A. Residual Functional Capacity Standard of Review
For purposes of Step Five, RFC is what a claimant is capable of doing despite their impairments. 20 C.F.R. § 416.945(a). The RFC is determined by considering all relevant evidence, consisting, inter alia, of physical abilities; symptoms including pain;
and descriptions, including that of the claimant, of limitations which go beyond the symptoms. § 416.945. Physical abilities are determined by the evaluation of exertional and nonexertional limitations in performing a certain category of work activity on a regular and continuing basis. § 416.945; see 416.967; 416.969a.
Thus, to determine whether a claimant can do a certain category of work, the ALJ must determine plaintiff's strength limitations, or exertional capacity, which include the ability to sit, stand, walk, lift, carry, push, and pull. § 416.969a(a). Nonexertional limitations include "difficulty performing the manipulative or postural functions of some work such as reaching, handling, stooping, climbing, crawling, or crouching." § 416.969a(c)(vi). RFC can only be established when there is substantial evidence of each physical requirement listed in the regulations. LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990). In assessing RFC, the ALJ's findings must specify the functions plaintiff is capable of performing; conclusory statements regarding plaintiff's capacities are not sufficient. Ferraris, 728 F.2d at 587; LaPorta, 737 F. Supp. at 183; Sullivan v. Secretary of HHS, 666 F. Supp. 456, 460 (W.D.N.Y. 1987); see § 416.946. The RFC is then used to determine particular types of work a claimant may be able to perform. § 416.945(a).
Jobs in the national economy are classified by their physical exertion requirements as "sedentary," "light," "medium," "heavy," and "very heavy." § 416.967. Sedentary work requires the ability to lift no more than ten pounds, to sit for extended periods of time, and to walk and stand occasionally.
§ 416.967(a). "Work exists in the national economy when it exists in significant numbers either in the region where [the claimant] live[s] or in several other regions of the country." § 416.966(a). However, "isolated jobs that exist only in very limited numbers in relatively few locations outside of the region where [the claimant] live[s] are not considered" to exist in the national economy. § 416.966(b). If the claimant can do work that exists in the national economy a finding of not disabled will be made. § 416.966(b). However, if a claimant can do work that does not exist in the national economy, a finding of disability will be made. Id.
When a claimant's impairment and related symptoms, such as pain, only impose exertional limitations and the claimant's vocational profile is listed in an Appendix 2 Rule, the Rule is applied directly to determine disability status. § 416.969a(b). However, when combined exertional and nonexertional limitations exist, the Appendix 2 Rules provide only a framework for disability determination unless a rule directs a conclusion of disability. § 416.969a(d). Thus, when a claimant is incapable of the full range of a certain category of work, such as sedentary work, the evaluation of disability must be made on an individual basis rather than by a mechanical application of the Appendix 2 Rules. Nelson v. Bowen, 882 F.2d 45, 46 (2d Cir. 1989). Moreover, the ALJ must consider subjective complaints of pain
throughout this evaluation process. § 416.929(a), (d).
The ALJ is "not obliged to accept without question the credibility of such subjective evidence." Marcus, 615 F.2d 23, 27; Peterson v. Gardner, 391 F.2d 208, 209 (2d Cir. 1968); Spicer v. Califano, 461 F. Supp. 40, 47-48 (N.D.N.Y. 1978). The ultimate question, however, is whether a claimant's affliction did, in view of their individual physical and mental makeup, cause symptoms which became so intensely severe that it forced them to quit working. Marcus, 615 F.2d at 27. Further, "it is well settled that 'a claimant's subjective evidence of pain is entitled to great weight' where . . . it is supported by objective medical evidence." Simmons v. United States R.R. Retirement Bd., 982 F.2d 49, 56 (2d Cir. 1992)(quoting Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983)(citations omitted)). An ALJ rejecting subjective testimony concerning pain and other symptoms "must do so explicitly and with sufficient specificity to enable the Court to decide whether there are legitimate reasons for the ALJ's disbelief and whether his determination is supported by substantial evidence." Brandon v. Bowen, 666 F. Supp. 604, 608 (S.D.N.Y. 1987); see Valente v. Secretary of HHS, 733 F.2d 1037 (2d Cir. 1984).
Age, education, past work experience, and transferability of skills are vocational factors to be considered. A person under age 50 is considered a "younger person," whose age will not "seriously affect [claimant's] ability to adapt to a new work situation." § 416.963(b). Education as a vocational factor is seen to indicate the ability to meet job requirements such as reasoning, communication, and arithmetic. § 416.964(a). A person with education between seventh and eleventh grade is generally not considered capable of performing semi-skilled through skilled work. § 416.964(b)(3).
B. The ALJ's Finding That Plaintiff is Capable of Sedentary Work
The ALJ's determination that the plaintiff was capable of performing sedentary work resulted first from the ALJ's finding that neither of the plaintiffs impairments met or equaled those listed in Appendix 1, Subpart P, Regulations No. 4. (Tr. 44). In particular, the ALJ noted that the plaintiff's chronic pulmonary disease and asthmatic condition have not resulted in multiple exacerbations requiring inhalation therapy or emergency room treatment in the frequency required by the regulations. (Tr. 41). With respect to asthmatic attacks, the regulations require that the attacks, in spite of prescribed treatment, occur once every two months or at least six times a year. See Appendix 1, Subpart P, Reg. No. 4, § 3.03 B. The record evidences that over a twelve month period the plaintiff was hospitalized once, and was treated in the emergency room three times for asthma exacerbation.
For example, on June 9, 1994, the plaintiff reported to the emergency room complaining that it was difficult to breathe. (Tr. 296). The following day, the plaintiff again reported to the emergency room with symptoms of wheezing and shortness of breath. (Tr. 298-99). At that time, it was reported that the plaintiff had an asthma attack after she smoked a cigarette and walked some stairs. (Tr. 299). On September 21, 1994, plaintiff visited the emergency room displaying symptoms of shortness of breath, wheezing, and chest tightness. (Tr. 300). Finally, the plaintiff was admitted to the hospital on September 27, 1994, following allegations that her breathing problems continued to get worse. (Tr. 305). Upon admission to the hospital, the plaintiff was given an intravenous steroid, oxygen, and an albuterol inhalation treatment. (Tr. 306). It was noted that the plaintiff continued to improve during her stay in the hospital. Id.
Notwithstanding, the defendant maintains that even if the plaintiff satisfied the frequency requirements for asthma attacks as prescribed by the regulations, she failed to adhere to a prescribed regimen of treatment offered by the treating physicians.
In particular, defendant notes that despite the repeated warnings and advice from the treating physicians, the plaintiff continued to smoke. It is well documented throughout the record that the plaintiff was advised that she should refrain from smoking. (Tr. 20, 21, 182, 185, 211, 307). In fact, on July 8, 1994, the plaintiff became hostile after being counseled once again on smoking cessation. (Tr. 331). It was also noted that the underlying cause of plaintiff's asthma and chronic obstructive pulmonary disease was her continued smoking. Id. Nevertheless, she continued to smoke. For instance, approximately three months following her second admission into the hospital for asthma exacerbation, on December 5, 1994, the plaintiff reported that she was smoking half of a pack of cigarettes a day. (Tr. 21). Likewise, on April 24, 1995, it was reported that the plaintiff was still smoking half of a pack of cigarettes a day.
(Tr. 27).
Although the plaintiff experienced frequent exacerbations of asthma, resulting mostly from her failure to adhere to the prescribed treatment, there is no support for the plaintiff's contention that such asthmatic exacerbations met or equaled the frequency required for a episodic respiratory disease found in Appendix 1, Subpart P, Regulations No. 4, §§ 3.00 C, 3.03 B. As discussed above, the record also indicates that she failed to adhere to her prescribed regimen of treatment as required by the listing. Therefore, the ALJ's determination that the plaintiff's severe impairments neither met nor equaled those listed in Appendix 1, Subpart P, Regulations No. 4, is supported by substantial evidence.
Finding that the plaintiff was not presumptively disabled and also incapable of performing her past relevant work, the ALJ next determined that the plaintiff was capable of performing sedentary work. (Tr. 44). This determination was primarily based upon the opinions of plaintiff's treating physicians, reports submitted by consultant examiners, and the plaintiff's ability to participate in various daily and social activities. (Tr. 42-44). A review of the record establishes that there is substantial evidence to support the ALJ's opinion that the plaintiff was capable of performing sedentary work in a controlled environment free from excessive smoke, fumes, chemicals, and noxious gases.
On October 7, 1994, the plaintiff's primary treating physician, Doctor Kenneth Ripp ("Ripp"), reported that the plaintiff suffered from chronic obstructive pulmonary disease, asthma, and depression. (Tr. 309). Ripp noted that as a result of the plaintiff's asthma exacerbations, she was admitted into the hospital once in 1994 and sought treatment in the emergency room three times in 1994 and once in 1993. (Tr. 310). Nevertheless, Ripp opined that the plaintiff had the capacity to lift and carry a maximum of fifteen pounds; stand or walk for less than two hours per day; sit with no limitation on the number of hours per day; and push and pull with limitations on the upper extremities. (Tr. 311-12). Likewise, Doctor Mary Obear ("Obear"), who plaintiff claims has been treating her since the original appeal, reported on July 27, 1995, that the plaintiff experienced chronic back pain, asthma exacerbated by smoking, and depression. (Tr. 5, 427). Though the results of an MRI of the plaintiff's cervical spine showed a mild central disc bulge without spinal cord compression, Obear opined that these findings did not necessarily correlate with the symptoms in plaintiff's neck nor did they explain the pain in her back. (Tr. 427). In addition, Obear noted that pulmonary function tests performed on June 22, 1993, established that the plaintiff suffered from mild obstructive airway disease. Id. Finally, Obear opined that she could find no medical reason as to why the plaintiff could not perform light duty work in a controlled environment. Id.
In addition to the opinions of Ripp and Obear, the record contains reports from two consultative examiners which also support the ALJ's opinion that the plaintiff is not disabled. Following an examination, Doctor F. Javier Monreal ("Monreal") reported that although the plaintiff claimed that she had a ruptured disc in her neck and had problems with her back, the available CAT scan and x-rays did not confirm her allegations. (Tr. 170-71). Monreal found that the plaintiff's neurological examination was without any objective findings. (Tr. 172). In fact, Monreal stated that he did not have a good explanation as to why the plaintiff could not perform relatively simple occupations. Id. It was Monreal's opinion that the plaintiff did not possess any neurological limitations with respect to her neck and low back that would warrant a finding that she was totally disabled. (Tr. 173). Finally, Monreal indicated that with the proper amount of vocational training and social services support, the plaintiff should be able to return to the job market. (Tr. 172). Similarly, on December 12, 1994, Doctor David G. Saunders ("Saunders") reported that the plaintiff had full forward flexion, extension, and lateral rotation of her back. (Tr. 316). Saunders' findings upon physical examination of the plaintiff's neck, thyroid, heart, breasts, abdomen, and extremities were otherwise unremarkable. Id. In addition, Saunders noted that he could not find significant back pain, and that the assessment of plaintiff's mental status was perfectly normal. Id. Saunders concluded with the opinion that the plaintiff's severe asthma improves to moderate following the use of medication. Id.
To support the finding that plaintiff was not disabled, the ALJ noted the plaintiff's ability to participate in various daily and social activities.
(Tr. 43). In particular, the ALJ found that the plaintiff was able to watch T.V., listen to the radio, and visit with friends. (Tr. 41). In addition, the plaintiff testified that she is sometimes able to do laundry and clean the home. (Tr. 77). She further testified that while the kids are at school, she is sometimes able to make the bed, sweep the floor, and clean the bedroom. (Tr. 78). In addition, she stated that she usually tries to make the meals and is capable of shopping for odds and ends. (Tr. 79). As a result, the ALJ's finding that the plaintiff had the capacity to perform sedentary work is not inconsistent with the plaintiff's ability to perform various activities involving daily living.
Plaintiff's ability to perform sedentary work is evidenced by the reports and respective opinions of Ripp and Obear, the consultant examiners, the assessments of plaintiff's residual functional capacity, and the plaintiff's ability to participate in various activities. Therefore, the ALJ's conclusion that the plaintiff is capable of performing sedentary work in an environment without excessive smoke, fumes, chemicals, and noxious gases is supported by substantial evidence. Nevertheless, there does not exist substantial evidence to support the ALJ's determination that the plaintiffs nonexertional limitations would not significantly compromise her ability to perform a full range of sedentary work.
Where a claimant's range of work is significantly diminished, the Secretary must present evidence showing that there are still jobs in the national economy for an individual with the claimant's limitations. Santiago v. Apfel, 1998 U.S. Dist. LEXIS 7138, *18, No. 96- Civ-6521, 1998 WL 247504, at *6 (S.D.N.Y. May 15, 1998)(citing Bapp v. Bowen, 802 F.2d 601, 606 (2d Cir. 1986)). Consequently, where nonexertional limitations significantly diminish the ability to perform a full range of work, it is appropriate that the ALJ present testimony from a vocational expert establishing that there are still jobs in the national economy that the claimant is capable of performing. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)(citing Bapp, 802 F.2d at 603)). Failure to present any evidence demonstrating that there are jobs in the national economy that the claimant can perform may necessitate a remand. See McKinzie v. Chater, 1996 U.S. Dist. LEXIS 17489, *15, No. 94- Civ-9183, 1996 WL 684169, at *5 (S.D.N.Y. Nov. 25, 1996)(remanding so that the ALJ can determine whether there are any jobs in the national economy that claimant is still able to perform).
The plaintiff's difficulties as a result of asthma and chronic obstructive pulmonary disease are well documented throughout the record. Each of the treating physicians have noted plaintiff's lung problems. For example, Obear reported that the plaintiff experienced asthma and mild obstructive airway disease, requiring the use of inhalers and a home nebulizer. (Tr. 427). Although Obear opined that the plaintiff was capable of performing light duty work, she restricted the light duty work to a controlled environment. Id. Likewise, a consultant examiner noted that though plaintiff's physical examination was unremarkable, she did have severe asthma that improved to moderate with the use of medication. (Tr. 316). Finally, both assessments of plaintiff's residual functional capacity indicate that she should avoid working in areas where she would be exposed to fumes, odors, dusts, gases, and poor ventilation. (Tr. 108, 256).
Despite the ample evidence of plaintiff's environmental limitations, the ALJ opined that the plaintiff's range of work was not significantly compromised. Other than the ALJ's assumption that most jobs involving sedentary work require a "smoke free" environment, (Tr. 43) the ALJ presented no evidence to support the opinion that the plaintiff's nonexertional limitations would not significantly compromise her ability to perform a full range of sedentary work. Consequently, the ALJ's finding is not supported by substantial evidence. Moreover, the record supports a finding that the plaintiff's ability to perform a full range of sedentary work is in fact significantly diminished, necessitating a remand for further factual development.
Therefore, on remand, the ALJ must present the testimony of a vocational expert or other similar evidence showing that there are jobs in the national economy that the plaintiff is able to perform notwithstanding her nonexertional limitations. § 416.966(a)(b) Otherwise, plaintiff should be considered disabled and entitled to disability benefits pursuant to § 416.966(b).
It is
ORDERED that
1. The decision denying the plaintiff benefits is REVERSED; and
2. The matter is REMANDED for further proceedings in accordance with this opinion.
David N. Hurd
United States Magistrate Judge
Dated: July 24, 1998
Utica, New York.
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Court of Appeals of Mississippi
August 27, 2013
Jermil CLARK a/k/a Jermail Clark, Appellantv.STATE of Mississippi, Appellee.
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[Copyrighted Material Omitted]
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W. Daniel Hinchcliff, George T. Holmes, Jackson, Bentley E. Conner, Flora, attorneys for appellant.
Office of the Attorney General by Billy L. Gore, attorney for appellee.
¶ 1. On October 6, 2011, a Madison County grand jury indicted Clark for kidnapping and aggravated domestic violence. After a trial held on March 12, 2011, a jury found Clark guilty of aggravated domestic violence by strangulation but acquitted Clark of the kidnapping charge. The trial judge sentenced Clark as a habitual offender to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC), to run consecutively to a previous sentence. Clark now appeals his sentence and conviction. Finding no error, we affirm.
¶ 2. On June 18, 2011, Tremekia Sims arrived home to the apartment she shared with her sister at the Canton Garden Apartments in Canton, Mississippi. Sims's boyfriend, Clark, was waiting at the apartment, and upon Sims's arrival, Clark expressed anger that Sims had been out all night. Sims testified that Clark " ran up and caught [her] around the waist and around the neck" and ordered her to open the door to the apartment before he broke her neck. Clark threw Sims into the apartment and threatened that " if [he] wanted to do something to [her], [he could] easily get [her]." Sims testified that the two began to argue. Sims stated that after she answered a phone call from a girlfriend, the argument escalated into a fight. Sims explained that Clark thought that based on Sims's phone conversation, she was cheating on him.
¶ 3. On the following Monday, June 20, 2011, Sims told Clark that she was going to work, and she dropped him off at his mother's house. Instead of going to work, Sims went to her cousin's house because she did not want to go to work with bruises on her. Sims explained that she received the bruises after Clark hit her and pushed her into a wall. Sims also testified that after leaving her cousin's house on Monday, she went to the hospital to receive treatment for pain in her ribs resulting from Clark hitting her.
¶ 4. Sims's friend put her in touch with Virginia Parker of the Canton Victims' Assistance Program. Parker contacted Sims after the 2011 incident and took photographs of Sims to document the bruises on her arms and face. Parker and Sims both testified that Clark previously abused Sims in 2011. At trial, Parker also identified three color photographs of the prior injuries received by Sims in 2010. These photographs were admitted into evidence without objection.
¶ 5. After interviewing Sims, Parker contacted Kim Henderson, a children's sexual abuse investigator for the Madison County Sheriff's Department, about her conversation with Sims. Investigator Henderson met with Sims and photographed her recent injuries. Sims testified that she told Investigator Henderson that " [Clark] jumped on me for the weekend." Investigator Henderson provided
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testimony recounting the details of her conversation with Sims, wherein Sims told Investigator Henderson that Clark had written a suicide note trying to convince Sims to come home. Sims told Investigator Henderson that as she put her key in the door of the apartment, Clark approached her from behind, put one hand around her neck and the other hand over her mouth, and pushed her into the apartment.
¶ 6. Investigator Henderson filled out an affidavit for Clark's arrest, and she and another deputy picked him up. Clark admitted to Investigator Henderson that he and Sims had been arguing and that " he may have caused the bruises or scratches to her neck by trying to defend himself."
¶ 7. At a trial held March 12, 2012, the jury heard testimony from Sims, Investigator Henderson, and Parker. Sims informed the jury that Clark had previously served jail time for domestic assault, stemming from abuse in their relationship. The transcript shows that with regard to the kidnapping charge, Sims began testifying to a different version of events than what her statement to police officers reflected. At trial, Sims explained that she did not want to go forward with the kidnapping charges against Clark— only the domestic-violence charge— and she refuted her previous statements to police officers that Clark had forcefully refused to let her leave the apartment during the weekend of June 18. Sims instead stated that she could have left whenever she wanted, but she never attempted to leave. The court, observing that it appeared Sims did not " want her recollection refreshed" granted the State's request to treat Sims as a hostile witness.
¶ 8. At the close of the State's case-in-chief, Clark moved for a directed verdict. The trial court denied the motion. Clark chose not to testify, and the defense rested without calling any witnesses. The jury returned a verdict acquitting Clark of the kidnapping charge, but finding him guilty of aggravated domestic violence. The trial court sentenced Clark as a habitual offender to serve twenty years in the custody of the MDOC. Clark filed a motion for a new trial or a judgment notwithstanding the verdict, which the trial court denied. On appeal, Clark asserts the following issues: Whether sufficient evidence was presented at trial to support the verdict and whether evidence of a prior domestic-assault charge was properly admitted at trial.
¶ 9. The standard of review for motions for a directed verdict and a JNOV is abuse of discretion. Smith v. State, 925 So.2d 825, 830 (¶ 10) (Miss.2006) (citing Brown v. State, 907 So.2d 336, 339 (¶ 8) (Miss.2005)). In considering whether the evidence is sufficient, the court must determine whether a reasonable, fair-minded juror could find that the accused committed the offense charged beyond a reasonable doubt, and that every element of the offense existed given the evidence presented. Brown, 907 So.2d at 339 (¶ 8) (citation omitted). If the evidence fails to meet this test, then it is insufficient to support a conviction. Carr v. State, 208 So.2d 886, 889 (Miss.1968). However, where reasonable and fair-minded jurors may have found the appellant guilty, we must affirm the judgment of the trial court. McClendon v. State, 852 So.2d 43, 47 (¶ 11) (Miss.Ct.App.2002) (citing Baker v. State, 802 So.2d 77, 81 (¶ 13) (Miss.2001)).
¶ 10. We also review the admission or exclusion of evidence under an abuse-of-discretion standard of review. Jones v. State, 904 So.2d 149, 152 (¶ 7) (Miss.2005).
I. Sufficiency of Evidence
¶ 11. Clark argues that the evidence presented at trial was insufficient to
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support the guilty verdict. Clark submits that Sims, the victim, testified that Clark only put his hand over her throat and mouth momentarily, and that Clark did not strangle her. Clark also asserts that Investigator Henderson's testimony describing Sims's statement, in which she claimed that Clark beat her, constitutes inadmissable hearsay evidence, and thus could not lawfully be considered as substantive evidence in support of his aggravated-domestic-violence conviction.
¶ 12. " A motion for a directed verdict challenges the sufficiency of the evidence." McMillan v. State, 6 So.3d 444, 446 (¶ 8) (Miss.Ct.App.2009) (citing Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)). In Bush, the Mississippi Supreme Court expressed that " the critical inquiry is whether the evidence shows ' beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.' " Id. (quoting Bush, 895 So.2d at 843 (¶ 16)). If any rational trier of fact, when viewing the evidence in the light most favorable to the State, could have found that the essential elements of the crime existed beyond a reasonable doubt, this Court " will affirm the denial of a motion for a directed verdict." Id. " If we find that reasonable, fair-minded jurors could have concluded that the defendant was guilty of the accused crime, the evidence will be deemed sufficient." Id.
¶ 13. Mississippi Code Annotated section 97-3-7(4)(a)(iii) (Supp.2012) provides: " A person is guilty of aggravated domestic violence who .... [s]trangles, or attempts to strangle ..., a person who has a current or former dating relationship with the defendant...." The statute defines " strangle" as " restrict[ing] the flow of oxygen or blood by intentionally applying pressure on the neck, throat or chest of another person by any means or to intentionally block the nose or mouth of another person by any means. " See Miss.Code Ann. § 97-3-7(5)(a) (Supp.2012) (emphasis added).
¶ 14. Clark claims that at trial, Sims denied that Clark ever restricted the flow of oxygen or blood into her body by intentionally applying pressure on her neck or throat, nor did he ever restrict the flow of oxygen or blood by blocking her nose or mouth. However, a review of the record shows that Sims indeed testified at trial that Clark held his arm around her neck and his hand over her mouth, albeit momentarily. The statutory elements, stated above, are also satisfied for this offense by proof that Clark intentionally blocked the nose and mouth of Sims. The trial court also admitted into evidence Sims's June 21 statement to Investigator Henderson. This statement by Sims reflected that on June 18, 2011, Clark ran up to Sims and " had one hand around [her] mouth and his arm around [her neck] .... and said open the door bitch before I break your neck in." The statement was signed by both Investigator Henderson and Sims. Investigator Henderson provided testimony detailing her interview with Sims, confirming that she saw bruises on Sims, and Investigator Henderson testified that based on Sims's statement and the visible bruises, she arrested Clark. Investigator Henderson also testified that Sims specifically told her that Clark " approached her from behind, [put] his hand around her neck[,] ... and then he put his other hand over her mouth and pushe[d] her into the apartment."
¶ 15. Upon review, the record reflects no objection by the defense to the admission into evidence of Sims's statement inculpating Clark as the perpetrator and cause of the bruises. This Court recognizes that the failure to make a contemporaneous
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objection waives the issue on direct appeal. Wells v. State, 698 So.2d 497, 514 (Miss.1997). Additionally, Mississippi Rule of Evidence 103(a)(1) provides that
[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... [i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context....
¶ 16. Here, the record reflects no contemporaneous objection by Clark's counsel; thus, the issue is procedurally barred. See Foster v. State, 639 So.2d 1263, 1289 (Miss.1994). We recognize that " [t]he defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment [of error] on appeal." Id. Such error exists where it affects substantial rights of the defendant. Grubb v. State, 584 So.2d 786, 789 (Miss.1991). The plain-error doctrine includes the review of errors that " seriously affect the fairness, integrity or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Upon review, we find no plain error in the admission of Sims's pretrial statement to investigators into evidence, since Sims also testified at trial regarding the same altercation with Clark.
¶ 17. In denying the defense's motion for a directed verdict, the trial court quoted the definition of strangle found in section 97-3-7 and held as follows: " [T]here is testimony that [Clark] put his hand over [Sims's] mouth and had his arm around her neck, and I believe that's sufficient considering the evidence in the light most favorable to the State, which is the standard." Upon review of the record, and in recognizing that " all evidence supporting a guilty verdict is accepted as true, and the prosecution must be given the benefit of all favorable inferences that can be reasonably drawn from the evidence," we concur with the trial court's determination that based on the evidence presented, a reasonable and fair-minded juror could have found Clark guilty of aggravated domestic violence by either strangulation or attempted strangulation pursuant to section 97-3-7. See Cortez v. State, 876 So.2d 1026, 1030 (¶ 11) (Miss.Ct.App.2003) (citing Nelson v. State, 839 So.2d 584, 586 (¶ 3) (Miss.Ct.App.2003)). The record contains sufficient evidence to support the verdict finding that Clark " intentionally block[ed] the nose or mouth of [Sims] by any means." Miss.Code Ann. § 97-3-7(5)(a).
II. Admission of Evidence
¶ 18. Clark next argues that the trial court erred in admitting into evidence testimony describing a prior incident of aggravated domestic violence and abuse by Clark. Clark submits that admitting the prior domestic-assault charge from June 25, 2010, was highly prejudicial to the defense. Clark cites to Mississippi Rule of Evidence 404(b) and claims that the State improperly used the prior charge to show character and that Clark acted in conformity with such character.
¶ 19. We review the admission or exclusion of evidence under an abuse-of-discretion standard of review. Jones, 904 So.2d at 152 (¶ 7). The admissibility of evidence of other crimes, wrongs, or acts is controlled by Mississippi Rule of Evidence 404(b). Under Rule 404(b), evidence of prior bad acts is generally inadmissible as character evidence or to show a defendant acted in conformity therewith. However, Rule 404(b) provides that evidence of prior bad acts " may ... be admissible for other purposes such as proof of motive, opportunity,
Page 135
intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Additionally, if admissible for a proper purpose, then evidence of prior bad acts " must pass through the filter of Rule 403 of the Mississippi Rules of Evidence." Wilson v. State, 956 So.2d 1044, 1047 (¶ 9) (Miss.Ct.App.2007). Rule 403 instructs that if the prejudicial effect of the evidence substantially outweighs the probative value, then the evidence should be excluded. See M.R.E. 403. With respect to the admission of the disputed evidence, the record shows the State submitted three photographs depicting the prior abuse of Sims by Clark on June 25, 2010. [1]
¶ 20. Following the pretrial hearing dealing with the matter of prior domestic abuse, the trial judge determined this evidence was admissible, providing the following Rule 403 ruling and findings:
I believe doing the balancing test under [Rule] 403, considering the admissibility under [Rule] 404(b), I believe that evidence of that assault is admissible under 404(b) to show opportunity, intent, absence of mistake, and I also believe that the evidence of that incident— the probative value is not substantially outweighed by the danger of unfair prejudice to the defendant or confusion of the issues or misleading the jury. So for that reason, the State will be allowed to get into the June 25, 2010 incident relative to [Sims] in this case.
¶ 21. A review of the record reveals that the trial court found the evidence admissible for permissible purposes— to show opportunity, intent, and absence of mistake— and then properly filtered this evidence through the Rule 403 balancing test in determining that the probative value was not substantially outweighed by any prejudice. See Wilson v. State, 83 So.3d 421, 437-38 (¶¶ 42-44) (Miss.Ct.App.2011). The trial court also provided limiting instructions to the jury for the admission of the prior bad act. The trial court allowed the State to submit only three photographs documenting the June 25 abuse into evidence. The evidence in the record supports the trial judge's findings under Rule 403 in admitting the evidence of Clark's prior bad acts as relevant to proper purposes of showing motive, opportunity, intent, and absence of mistake, and the record reflects no abuse of discretion in the admission of this evidence. See Wilson, 83 So.3d at 437-38 (¶¶ 42-44). Accordingly, we affirm the judgment of the trial court.
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Ghazala Khan, 53, Arkadelphia, US, Pinnacle Dr
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Many pet owners probably aren't aware of how honey has helped dogs with all sorts of issues including allergies, infections, kennel cough, digestion, wounds including burns, hot spots and pressure sores.
A few things that make honey so special is that it is naturally high in enzymes, high in antioxidants and flavonoids, and it kills anti-resistant bacteria including MRSA.
Here you'll find the best type of honey to use, based upon your dog's specific problem. It also gives clear directions on how to use it for your old friend.
THE QUALITY OF THE HONEY MATTERS: Tests show that most supermarket grade "A" processed honey is diluted with cheap products such as high fructose corn syrup, been heated and quickly cooled giving it a smoother look inside the bottle. What this means is, it is useless as far any benefits go. In order for your dog to receive any benefits from honey, it MUST be either local, fresh honey or Manuka.
*Avoid feeding diabetic dogs and dogs with cancer honey without first discussing with your holistic veterinarian.
1. Using Honey for Your Dog's Allergies
Like us, many dogs too suffer from environmental allergies. Spring, summer and fall can trigger these sensitivities in dogs with symptoms such as rubbing the face, licking feet and thighs and scratching.
However, it's important to make sure that you're not confusing what you think are environmental allergies and your dog's real problem is a food allergy (or both). To learn more about food allergies, click here.
Follow the guidelines below for using honey for a dog with allergies:
- What type of honey to use: Make sure your purchase local raw, unfiltered honey, or better yet, purchase local raw wild flower honey. The wild flower honey will give your dog the best results because it covers so many different plants and flowers. This can often be purchased from bee farms. Avoid Manuka honey when using for allergies since you need a local, raw honey.
- Directions: 1 Tablespoon of raw wildflower local honey twice daily for large dogs such as labs. Use this as a guide and adjust according to the size of your dog. You must do this daily or the allergy symptoms will reappear.
2. Using Honey as A Wound Dressing for Burns, Infections, Hot Spots & Pressure Sores for Dogs
- What type of honey to use: The best honey to use for burns, infections and pressure sores is pure Manuka Honey. Clinical trials show that applying honey as a wound dressing eliminates bacterial infections, reduces inflammation, swelling and pain, and increases the growth of new skin. It seals and keeps the area moist (including skin grafts) while protecting from sticking to bandages.
- Directions for burns: Trim the hair around the burn. You'll want to wash the burned area with vinegar and apply a thick coat of honey every 10 minutes until the pain decreases. Apply a LIGHT bandage over the area. Don't allow your dog to lick or bother the area. A Elizabethan collar might be necessary for awhile.
- Directions for pressure sores: Trim the hair around the area. Gently blot to clean the wound. You can apply the honey directly by very gently placing a little honey over the wound with a clean spatula. Cover with a non-stick pad and wrap with gauze (not too tight). You can also apply the honey directly to the non-stick pad and then wrap with gauze to keep in place.
- Directions for hot spots: You MUST trim or shave the hair surrounding the hot spot until you can see healthy skin . If not, all the bacteria, pus and infection become trapped within the hair. It's also critical that you clean the area before applying the honey. You can use Povidone Iodine that most pharmacy's or even supermarkets carry. Dilute a little of the Povidone Iodine with water to an ice tea color. Then use soft gauze to gently blot and clean the hot spot. Do this a minimum of twice daily. Apply a light layer of Manuka honey to your dog's hot spot. Do the process of cleaning and applying the Manuka honey a minimum of twice daily. If the hot spot grows instead of getting smaller, seek veterinary care immediately.
Precaution: When using honey as a wound dressing, it's very important to use Manuka Honey in liquid form, which means it should be soft and pour easily. Do not use crystallized honey on a burn or open wound! The crystals are sharp and can cause even more pain to your dog's open wound.
How to soften crystallized or hard honey: Place the jar in a pot of very hot water (don't microwave) until it can easily be poured. Cool before placing on your pet.
3. Honey for Kennel Cough
- What type of honey to use: Manuka honey is needed for dogs with symptoms of Kennel Cough.
- Directions: Feed 1/2 up to 1 teaspoon depending on your dog's weight. Administer 4 times daily.
4. Honey for Your Dog's Digestion
- What type of honey to use: Again, Manuka honey works best for digestive issues.
- Directions: Large dogs 1 tablespoon a day, medium dogs 2 teaspoons a day, small dogs 1 teaspoon a day.
5. Honey May Boost Your Old Dog's Energy Level
Honey is a natural source of carbohydrates which increases energy.
- What type of honey to use: You can use either Manuka or a local honey when it comes to boosting energy.
- Directions: Large dogs 1 tablespoon a day, medium dogs 2 teaspoons a day, small dogs 1 teaspoon a day.
As you can see, honey offers some amazing benefits for dogs. If you need to search out raw local honey for your dog's allergies, this page may help.
Why can't you give it to a dog with cancer?
He wound having Lyme. Took X-rays as well to make sure nothing else was going on and found little dots all over his lungs…..and his lynphnodes where a little big. ?
Can I give a dog a bit of honey AFTER the cancer ( anal cancer ) was removed ) ?
My dog has allergies and chronic bronchitis and a small tracheal collapse he coughs a lot he is on cough syrup doxycycline prednisolone can I use money for hisc cough because nothing is working….he is 14.
Raw honey is not as bad as you think for cancer.
What if my dog has environmental allergies and digestive issues, allergic to protein.
And my other dog had congestive heart failure and pulmonary hypertension and coughs constantly, he takes cough meds
What age do you start with raw honey? My boy Fuji is 11 months old and got his ichiys from diet change when we boarded him!
Can this help treat MRSP in dogs. Rocco is 11.5 years old and has been fighting this for 3 months. He has circular lesions in different areas of his body. Topically would be a challenge bc they are in a bunch of diff spots. it should help internally?
My Whippet/JR was just dx with CHF. Would honey help with the dry cough ? He is so uncomfortable. Thanks!
i don't know about munanka honey. but i have given my dog tesco's every day value honey (which i use on my porrage each day. my dog is so much calmer, she is old now and very restless i have just started to give her just 1/2 teaspoon and she settles down nicely in the evening. she was diagnosed with a fatty liver earlier this year the vet gave her 6 months which was up in sept. but she is still with me. i sure it is something to do with the honey. what does other readers think or is it just coinsendense??? would love to hear your comments.


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Hello. I wanna ask a question. How to remove the one circled in this image? Thanks! —IndxcvNovelist (Talk to Me|My Wiki) 12:00, May 28, 2012 (UTC)
- Hi. :) All you have to do is send a request from your wiki to
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I paused before I hit the "publish" button on this one, because my conclusion was a bit of a shocker. We decided to pay a bit more attention to True Health side effects, ingredients, quality of customer service and scientific research. Additionally, we analyzed hundreds of reviews and comments. Then, we summarized and refined to give you the info you need.
What is True Health?
First off, True Health ingredients include cape aloe leaf concentrate, Chinese rhubarb, licorice, digestive enzymes, ginger extract, peppermint leaf, bacillus coagulans, gymnema sylvestre leaf and cinnamon bark, among others. The company promotes weight-loss by improving overall health and wellness. The recommended serving is two capsules per day. One benefit is that you can use the supplements on the go.
The brand was introduced in 1979 and does contain some natural ingredients. It appears as if you can only purchase the supplements on the official website. We like that the company has been in business for quite some time and that we located a few positive customer comments, but read on…
Side Effects – "Causing Issues?"
The first negative about True Health side effects was the severity. "The ingredient list gives us a look into what dieters can expect," said our Research Editor. "There is a natural laxative that can affect the stomach and bowels and that has nothing to do with weight-loss."
"Gave me diarrhea. Returned for refund," commented a user.
"The basic problems I was experiencing: occasional bloating, occasional upset stomach, burning bum, etc.," said a customer.
Scroll below for one of the best products we've seen over the last year.
Ineffective –"No Weight-Loss Support"
Dieters commenting on the web noticed the True Health ingredients were ineffective. "My husband and I loved the old formula. It just doesn't work as well at all," reported a customer.
"Recently received the new and improved version and it is not the same, and really doesn't seem to work at all," commented a user.
"It has made no difference to my joints after 1 month of taking the formula regularly," said a consumer.
Our research has concluded that when there's something considered concerning about a supplement, like not producing results, there's a chance long-term success could be limited. So, if True Health doesn't work, why waste your money?
The Science – "Research-Based?"
Based on the information available on the True Health website, the supplements are developed by a team of doctors, which is promising. What's missing is published clinical research linking the formulas to weight-loss. At DietSpotlight, locating scientific proof is imperative. If there's no science, is it really worth your time?
The Bottom Line – Does True Health Work?
So, True Health supplements for weight-loss? Well, we like the longevity of the company and that we found some positive customer comments. But, we're hesitant about this one because there's no direct connection between the supplements and weight-loss. Also, we're concerned about customer reports of limited results and negative side effects.
If you'd like to drop those extra pounds, we suggest going with a supplement shown to be effective in published scientific research with no reported adverse reactions.
Among the best products we've seen in 2016 is one called Leptigen. The supplement promotes weight-loss by featuring four clinically-tested ingredients that have been shown to help accelerate metabolism and boost fat loss. There's no talk about harmful side effects, but dieters are chattering about their excellent results.
Also, the company behind Leptigen is so confident in the supplement, they're providing a Special Trial Offer.


text:
Key To My Heart
8 comments:
- My Hideaway said...
I agree about clutches, they're the prettiest impractical things ever made. And you can't help but want one shaped like a book. Also, I actually saw that coat online, and I have to say it looks completely different on you than it did online (much cuter on you).
- March 13, 2013 at 9:36 AM
- Marie @ Lemondrop Vintage said...
Perfect bibliophile clutch!
Marie @
Lemondrop ViNtAge
I am having a fabulous giveaway right here.
- March 13, 2013 at 10:19 AM
- Ivy said...
beautiful outfit, love your shoes :)
- March 13, 2013 at 10:26 AM
- clara said...
You are so cute... i love your outfit very much...
- March 13, 2013 at 11:18 AM
- Kristian said...
I agree in general about clutches but.... that might be the Best. Purse. Ever.
I love things that aren't books being shaped like books...
- March 13, 2013 at 11:56 AM
- La Saloperie said...
You are absolutely adorable! The whole outfit! You look especially amazing in the hat!
- March 13, 2013 at 1:02 PM
- Bronté Collett said...
I love that jacket...so much texture and intresting detail :)
- March 13, 2013 at 6:23 PM
- Mae said...
It's both whimsical AND charming! I love it.
I mostly also love the beautiful swing of that dress.
Love + aloha,
- March 13, 2013 at 6:25 PM


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Wolf Multi Cushion
Wolf Multi Cushion
This Wolf filled cushion features striking and intricate photographic imagery. This cushion is the perfect addition to the Wolf multi coloured duvet set and is ideal for teenagers or fans of wildlife.
- 45cm square filled cushion
- 100% Polyester cover and filling.
- Coordinates with Wolf multi coloured duvet set.
€ 12.50


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adidas AF3950 Galactic Elite M Silver Metalic / Grey / Dark Grey
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Made using adiPRENE fabric the adidas Galactic Elite provide exceptional abrasion resistance and strength making your ride smoother. The shaped, padded ankle collar and tongue provide comfort and support while the iconic 3-stripes and classic adidas branding finishes the design with style.
- Synthetic sole
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- Shaped, padded ankle collar and tongue
- adiPRENE+ technology in forefoot for propulsion and efficiency
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- Integrated sockliner for support and comfort


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Dateline Rice – Rice in the News
Dateline Rice for Dec. 5, 2016 (Weekend Edition)
05 December 2016 2:24 PM | No Comments
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@RiceUNews on Twitter
Rice baseball trip to Cuba turns into historic learning experience
Rice baseball trip to Cuba turns into historic learning experience.
Rice Emerging Scholars Program helps new students adapt to academic life at Rice
After almost five years on campus, the Rice Emerging Scholars Program (RESP) has helped more than 145 incoming students familiarize themselves with the challenges of academic life at Rice.
Los Buhos to visit Cuba
The Rice University baseball team will embark on a 12-day trip to Cuba beginning Nov. 23.
Tapia receives AAAS' Public Engagement with Science Award
Rice University computational mathematician Richard Tapia has won the American Association for the Advancement of Science's 2016 AAAS Public Engagement with Science Award.
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RUPD offers holiday safety tips
Giving Tuesday goes to the dogs
Hulet wins Walther physics prize
Bioscience grants benefit cutting-edge research
Paper: North American energy integration poised for rapid transformation
Rice mourns Wiess College's Ethan Wissell
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Ken Kennedy Institute announces winners of annual fellowship awardsPosted on November 29, 2016 | No CommentsThe Ken Kennedy Institute for Information Technology has awarded $65,000 to nine Rice University graduate students as part of its annual graduate fellowship program.
Coach David Bailiff will lead Owls for 11th seasonPosted on November 29, 2016 | No CommentsRice Owls head football coach David Bailiff will return for his 11th season in 2017, Director of Athletics Joe Karlgaard announced Nov. 29.
Bumpy surfaces, graphene beat the heat in devicesPosted on November 29, 2016 | No CommentsGraphene and a patterned interface may be the key to dispersing heat from next-generation microelectronics, according to a new study at Rice.
Pine product offers fresh take on fine chemical synthesisPosted on November 28, 2016 | No CommentsRice researchers create multifunctional reagents from a naturally occurring product of pine trees that will simplify the manufacture of food additives, cosmetics and pharmaceuticals.
Texas singer-songwriter Vince Bell shares writing and recovery insights with Rice studentsPosted on November 28, 2016 | No CommentsThe 15 students in Burke Nixon's first-year writing-intensive seminar, Medical Humanities: Literature, Medicine and the Practice of Empathy, were in for a rare treat on a Monday in late October. Vince Bell, the Texas singer-songwriter who weathered life-changing tragedy, spoke to the students about the art and craft of writing, recovery and how he came out the other side.
Leebron helps lead effort to uphold DACAPosted on November 23, 2016 | No CommentsRice President David Leebron, the new chair of the Association of American Universities Board of Directors, is supporting an effort by David Oxtoby, president of Pomona College, to encourage college and university presidents to sign on to a strong public statement in support of Deferred Action for Childhood Arrivals (DACA).
MBA student leaders convene at RicePosted on November 23, 2016 | No CommentsThirty-two student government leaders and administrators from 18 of the country's top MBA programs gathered at Rice's Jones Graduate School of Business Nov. 17-18 for […]
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December 5, 2016
Bioscience grants benefit cutting-edge researchNews Releases
December 2, 2016
Baker Institute expert: Texas can reduce HPV-related cancersNews Releases
December 1, 2016
Baker Institute paper: North American energy integration poised for rapid transformationNews Releases
December 1, 2016
'Bickering' flies make evolutionary pointNews Releases
November 30, 2016
New strategy may drop cancer's guardNews Releases
November 29, 2016
Rice's Shepherd School Chamber, Symphony orchestras to conclude fall semester with performancesNews Releases
November 29, 2016
Bumpy surfaces, graphene beat the heat in devicesNews Releases
November 28, 2016
Pine product offers fresh take on fine chemical synthesisNews Releases
November 28, 2016
HPV-related cancer prevention is focus at Rice's Baker Institute Dec. 2News Releases
November 21, 2016
Rice Professor Mason Tomson elected AAAS fellowNews Releases
November 21, 2016
Los Buhos to visit CubaNews Releases
November 18, 2016
'Freeze-frame' proteins show how cancer evolvesNews Releases


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The weather might be playing games with everyone, but have faith. It will get warmer.
And with that in mind, here's a reminder about one event you don't want to miss: The 4th Annual Wismer Foundation Golf Tournament and Award Presentation Dinner is set for Tuesday, Sept. 11. The early entry deadline is June 1 and the event is regularly sold out. The venue is the Carlisle Golf and Country Club.
The golf tournament and dinner is the primary fundraiser for the Wismer Foundation, which annually presents the Wismer Award for Academic and Athletic Excellence
Established in 2002 to honour the late John Wismer, it is the Foundation's desire to continue his legacy by encouraging, recognizing and rewarding excellence in high school athletics and coaching. The Wismer Award for Academic and Athletic Excellence is presented yearly to an outstanding athlete graduating from Barton high school and who is pursuing a post-secondary education at the university or college level. A cash scholarship assists the recipient's post-secondary education.
The Wismer Award for High School Coaching Excellence was established in 2004 in co-operation with the Hamilton Wentworth and the Hamilton Wentworth Catholic district school boards. It recognizes the often-overlooked efforts of coaches who make significant contributions to the growth and continuing development of students and athletes.
John Wismer believed, and lived, that coaches had a role that went beyond their on-field instructions.
More information about the Foundation, sponsorship opportunities and the tournament is available by visiting wismerfoundation.org or calling Stacy Wismer at 905-574-3529.


text: ok so when i download a song with islsk it shows up in var/mobile/media/downloads but it says "incomplete_" before the name so it doesent show up in the downloads tab in islsk. i can go to the files with mobile finder and delete a letter in the "incomplete" and it will show up but that is really inconveniont. i set the permissions of Islsk app to 777


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Higher Education Webinars
A space for conversation and debate about learning and technology
November 12, 2012 - 9:00pm
Did you check out the Pearson's OpenClass booth at EDUCAUSE? If not, it is worth spending some time on the new OpenClass site www.openclass.com.
November 11, 2012 - 9:00pm
Every job is in some way fascinating. I'm particularly interested in how you earn your living. Those of us who are in some way associated with higher ed, and who gather in this community to learn and share what we know.Jeanne Marie Laskas is one of us, an associate professor and director of the writing program at the University of Pittsburgh. Maybe in her next book she will turn her attention closer to home (or maybe your campus or office), but the lack of higher ed people in Hidden America should not dissuade you from reading this terrific book.
November 8, 2012 - 11:00pm
What are your big takeaways for EDUCAUSE 2012?
November 7, 2012 - 8:45pm
The 2012 EDUCAUSE Exhibit Hall (the vendor floor) features 270 edtech companies. From Aastra (booth #669/671 - audio and video conferencing, business continuity, disaster recovery, emergency planning, cloud computing and services, enterprise information systems, wireless) to Xirrus (booth #627/691 - hardware, identity and access management, network infrastructure, network security and applications, wireless) - with anyone and everyone in the edtech space (except Apple) in between.
November 6, 2012 - 11:00pm
What are your goals for EDUCAUSE 2012? What do you hope to learn at the conference? What insights and information do you hope to take back to your campus?
November 5, 2012 - 9:00pm
If you are reading Nate Silver's awesome book The Signal and the Noise: Why So Many Predictions Fail-but Some Don't you know that: a) The track record of forecasters for predicting future events is abysmal. b) There is no correlation (and indeed an inverse correlation) between the confidence that one makes predictions and the accuracy of these prognostications.
November 4, 2012 - 10:30pm
If I could choose one theme that I hope resonates with EDUCAUSE attendees this year it would be around productivity.
November 1, 2012 - 9:00pm
Are you going to EDUCAUSE in Denver the week of 11/5? If you are an "IT Decision Maker" on your campus, someone who decides what your institution or school or even department purchases, then there will be many folks at EDUCAUSE that will want to meet you. How do you choose which vendors to meet?
November 1, 2012 - 5:00am
Instructure announced today that it's launching a new service called Canvas Network. The service is being positioned as an alternative to existing MOOC vendors or platforms (such as Coursera or EdX) to allow schools to teach open online courses on the Canvas platform.
October 30, 2012 - 9:00pm
I'm betting that there is a strong overlap between our IHE community and fans of Steven Johnson. If you are like me you got hooked on Steven Johnson's Everything Bad is Good for You, and have loved his subsequent books (like The Ghost Map, The Invention of Air, and Where Good Ideas Come From).
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April 25, 2007
SHANNON MAYO, PLAINTIFFv.THE CITY OF YORK, PA; JOHN VEATER; CLAY STEVENS; NICK HANSEL; BART SEELIG; AND SHAWN ROSIER, DEFENDANTS
(Chief Judge Kane)
Pending before the Court is Defendants' motion pursuant to Rule 42(b) of the Federal Rules of Civil Procedure requesting that the Court conduct the jury trial in the above-captioned action in three separate phases.*fn1 Specifically, Defendants have requested that the Court first conduct a jury trial on Plaintiff's claims that the Defendants' seizure of his person violated the Fourth Amendment. [During this trial, Defendants would have the Court preclude the jury from learning that summary judgment against Defendants Veater and Stevens has already been granted in Plaintiff's favor on the issue of the seizure of guns and ammunition from Plaintiff's home, and to preclude any testimony relating to Plaintiff's alleged damages that resulted from such seizure.] Next, Defendants would have the Court conduct a second trial on Plaintiff's claims for municipal liability against the City of York, arguing that if this claim is tried with Plaintiff's claims against the individual officers, and if a jury is permitted to hear evidence of a pattern of conduct that Plaintiff might present to prove a claim for municipal liability, the individual Defendants would be prejudiced. Finally, Defendants would have the Court convene a third trial relating exclusively to damages.
Plaintiff opposes the motion to trifurcate the proceedings, arguing that separation of trials in such manner is unwarranted and that Defendants' claims of potential prejudice are speculative. Moreover, Plaintiff maintains that he expects to present limited evidence regarding a pattern of conduct that he contends exposes the City to municipal liability his damages and regarding his damages claim, rendering Defendants' asserted risk of prejudice especially remote. Additionally, Plaintiff asserts that any potential prejudice to Defendants from trying all issues in a single proceeding could be obviated through instructions to the jury.
Rule 42(b) of the Federal Rules of Civil Procedure provides as follows:
(b) Separate Trials. The Court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, issue or any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States.
Fed. R. Civ. P. 42(b). A district court has broad discretion in determining whether bifurcation is appropriate in a particular case. Idzojtic v. Pennsylvania R.R. Co., 456 F.2d 1228, 1230 (3d Cir. 1971); see also Lis v. Robert Packer Hosp., 579 F.2d 819, 824 (3d Cir. 1978) ("[T]he decision to bifurcate vel non is a matter to be decided on a case-by-case basis and must be subject to an informed discretion by the trial judge in each instance."). The party seeking bifurcation has the burden of proving that separation is necessary "in light of the general principle that a single trial tends to lessen delay, expense and inconvenience to all parties." Carter v. City of Philadelphia, No. 97-4499, 2000 U.S. Dist. LEXIS 13829, *2-3 (E.D. Pa. 2000) (quoting McCrae v. Pittsburgh Corning Corp., 97 F.R.D. 490, 492 (E.D. Pa. 1983)). Factors that may be relevant to a court's determination of whether to bifurcate a particular case include whether bifurcation will avoid prejudice, conserve judicial resources, and enhance juror comprehension of the issues presented in the case. Union Carbide Corp. v. Montell N.V., 28 F. Supp. 2d 833, 837 (S.D.N.Y. 1998). "In deciding whether one trial or separate trials will best serve [the foregoing factors] . . . the major consideration is directed toward the choice most likely to result in a just final disposition of the litigation." In re Innotron Diagnostics, 800 F.2d 1077, 1084 (Fed. Cir. 1986). Notwithstanding a district court's broad discretion, the Third Circuit has cautioned that it has "condemned the district court's practice of bifurcating trials as a general rule." Barr Labs., Inc. v. Abbott Labs., 978 F.2d 98, 115 (3d Cir. 1992).
Upon consideration of Defendants' motion, the Court does not find that trifurcation of this action is necessary or appropriate. Defendants' general claims regarding the potential prejudice to the individual Defendants in the absence of trifurcation are speculative and would appear capable of being mitigated through cautionary instructions, to the extent they are found at trial to be necessary. In addition to finding that Defendants have failed to persuade the Court that trifurcation is necessary to avoid prejudice, the Court finds the potential risk of prejudice that Plaintiff could face if he were forced to try this relatively straightforward civil rights action in three separate stages further militates in favor of denying Defendants' motion. Defendants have similarly not persuaded the Court that trifurcation would aid in judicial efficiency or juror comprehension of the issues in this case; to the contrary, convening three separate trials of this case would create unnecessary inefficiency with no clear benefit to the parties or the Court.*fn2
WHEREFORE, this 25th day of April 2007, IT IS HEREBY ORDERED THAT Defendants' motion to trifurcate trial (Doc. No. 102) is DENIED.
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