IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-KA-00141-COA SYLVESTER GARNER ON BEHALF OF TRACEY LYNN GARNER, DECEASED APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 09/02/2014 TRIAL JUDGE: HON. W INSTON L. KIDD COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: JOHN M. COLETTE SHERW OOD ALEXANDER COLETTE ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT DISTRICT ATTORNEY: ROBERT SHULER SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART - 05/15/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GREENLEE, J., FOR THE COURT: ¶1. A jur y s i t t i n g bef

ore the Hinds County Circuit Court, First Judicial District, f ound Tracey Ly

nn Garner guilty of depraved-heart m urder and c onspiracy to com m it wire f raud. Garner appeals a nd claim s the circuit c ourt erred when it allowed the prosecution to present expert testim ony f

rom three phy s icians. W e disagree. However, t he c ircuit court erred when it denied Garner’s m otion f or a judgm ent notwithstanding the verdict (JNOV) regarding the conviction f

or conspiracy to com m it wire f raud. Consequently , we af f irm the circuit court’sjudgm ent in part, and reverse and render in part. FACTS AND PROCEEDINGS BELOW ¶2. Karim a Gordon died pursuing her goal to becom e w hat her f riend, A ngelean Barber, described as an “ urban hiphop m odel.” Convinced that she needed silicone injections in her b u t t o c k s, in 2010 Gordon began em ailing Natasha Stewart, who worked u nder the stage

nam e, “ Pebbelz da Model.” Gord o n a sked S tewart f or “inf orm ation regarding

. . . butt enhancem ent

. . . .” Describing it as “a very touchy subject,” Gordon asked S tewart to “let [ her] know what[ ]ever [ she] ha[ d] to do to get this taken c are of .” S he a lso said that she had “been t o num erous w ebsites” but she “could not f ind the right inf

o rm a tion.” Stewart responded cordially , but she did not disclose any t hing about the “enhancem ents” that Gordon sought. Gordon em ailed Stewart again and s aid that she would not “give up on [ her] m ission to ultim a tely

achieve a tastef

ully great butt enhancem ent.” 1 ¶3. In N ovem

ber 2011, Gordon em ailed Stewart again. Gordon said she had “not gotten [ her] situation f

ixed y et” and she was “ s t i l l l o o k ing f or a good b utt j ob like” Stewart’s. Gordon asked f

or a ref e rral and told Stewart that she d id “not m ind com pensating [ her] f

or this secretive inf

orm ation

. . . .” Apparently pref e rring to speak in person, Stewart invited

1 E m a ils in th e reco rd s h o w th at in A u g u st 2 0 1 0 , G o rd o n h a d co n tacted a t least o n e o th er p erso n v ia an em ail ad d r ess th at sh e f o u n d o n a “f

o ru m o n b u tt en h an cem en t.” T h at led to a n o f

f er f o r an “in h o u se v i sit” o r to sh ip G o rd o n “th e item [ s h e] w a n t[ ed ]

. ” F u rth er d iscu ssio n led to “ Jerm ey ’s” o f f er to p erf o rm s o m e serv ice v alu e d a t $ 1 ,2 7 5 f o r a p ro ced u re th at w o u l d b e “ o f

f th e b o o k s” b ecau s e it co u ld resu lt in Jerm ey lo sin g h is “p ractice.” A t trial, it w as d isp u ted w h eth er G o rd o n h ad in j ectio n s p rio r to M arch 2 0 1 2

. 2Gordon and Barber to a party she was hosting at a club in Queens, N ew York. In February

2 0 1 2 , Gordon and B arber f lew f rom Atlanta t o Queens. During their m eeting at th e c l u b , Stewart revealed that “Miss Tracey ” had “been doing her[ enhancem ents] f or y ears.” St e wart also represented t hat “Miss Tracey ” w as a nurse. However, Stewart did not reveal “Miss Tracey ’ s” contact inf

orm ation or address at t hat time

. Subsequent testim ony clarif ied that “Miss Tracey ” was the def endant, Tracey

Ly nn Garner. ¶4. On March 12, 2012, Stewart sent Garner a text m essage. Garner replied one m i nute later. The record does n ot reveal the substance o f t h eir exchange. Garner and Stewart exchanged a f

ew m ore text m essages that week. Again, the record is silent regarding what they said to one another. ¶5. On March 15, 20 1 2 , S t e w a r t d i s c l o sed G arner’s phone n um ber and g ave Gordon directions to an address in Jackson, Mississippi. According t o B arber, she a n d G o r don thought the directions w ere to G arner’s house. Even s o, Gordon ’ s h a n dwritten directions indicate that she and Barber planned to m eet Garner a t a W algreens. The n e x t mo r n i n g, Gordon and Barber drove f rom Atlanta to Jackson. During t heir trip, Go r d o n a nd Garner exchanged a n um

ber o f text m essages. Garner’s o utgoing m essages are included in the record, but G ordon’s m essages are n ot. Nearly a ll of Garne r ’ s t e x t s w e re inquiries about Gordon’s location. Gordon also com m unicated with Stewart several tim es during their trip.
W h en Gordon and Barber arrived at W algreens in Jackson, Garner w as not there. Gordon
went inside W algreens and b o u g h t a Green Dot Money p ak card. Af

ter u sing it to send

3Stewart a $ 200 r ef erral f e e, Garner gave Gordon and B arber directions to her house. Garner was wearing scrubs when she m et Gordon and Barber in the driveway

. ¶6. W h en Barber saw that Garner appeared to be transgendere d , s h e d e c i d ed not to get silicone injections. She waited in one room while Gordon and Garner went into another part of the house. Garner gave Gordon an unknown num b er of silicone injections. Barber later said that G ordon was in obvious pain af ter the injections. Barber relay ed Gordon’s claim that it was “the worst f

eeling of her lif e.” ¶7. Gordon and Barber i mme d i a t e l y s tarted their trip back to Atlanta. They contacted Garner because Gordon had a p ersistent cough and she was sweating p rof usely

. G a rner

recom m ended cough m e dicine or Benadry l

. Around t hirty m inutes af ter leaving Garner’s house, Barber had to pull over s o Gordon c o uld d ef ecate on the side of the interstate. During the return trip, Gordon c o n t i n u e d to have dif f iculty breathing, and Barber had to pull over several tim es so Gordon could def ecate on the side of

the road. ¶8. W h en t h ey got to S tockbridge, Georgia, Barber t ook Gordon to t he e m ergency room . Gordon and Barber did n o t tell hospital staf f about Gordon’s silicone injections because they

were scared, and they had been “told not t o tell exactly what had happened t o h er at that tim e.” The hospital released Gordon e arly the next m orning. Two day s later, Gordon went back to the em ergency room , where she was treated by Dr. Darina Stankey eva. ¶9. Gordon w as initially treated f o r pneum onia. She later disclosed her recent silicone injections. Testing r evealed the presence of pulm onary em bol i

– “ s ma ll p articula[ te]s

4blocking out the blood vesse ls i n her lungs.” Despite m edical intervention, Gordon’s

condition deteriorated until she died on March 24, 2012. ¶10. G o r d o n ’ s a u t o p sy was p erf orm ed b y D r. Steve Atkinson, a f orensic pa t h o l o g i s t

em ploy e d by the Georg i a B u r e a u of Investigation and the Georgia Medical Exam iner’s of f ice. W hen Dr. Atkinson cut i nto Gordon’s b uttocks tissue, a c l ear, o ily liquid spilled out. The tissue also contained num e rous “cy st like spaces f illed w it h s i l icone” and “relatively recent” hem orrhaging. Dr. Atkinson opined that Gordon d ied because s o m e of the silicone entered her bloodstream and eventually lodged in h e r p u lm onary capillaries, ef f ectively preventing oxy gen exchange. ¶11. Garner was subsequently charged wit h d e p r a v e d

- h e a r t m urder and conspiracy

to

com m it wire f

raud. At trial, the p rosecution called f if t een witnesses during its case-in-chief

. The evidence showed that G arner had never been a licensed m edical prof e ssional. Instead, her m ost recent em

ploy m ent had been as a c ook at a nursing hom e . There was also testim ony that Gordon had been healthy and active b ef ore G arner g ave her sil i c o n e injections. Investigator Lee McDivitt of the Mississippi A t torney General’s Of f ice testif i ed that he executed a search warrant at Garner’s house, and he f ound num erous needles, large-gauge
sy ringes labeled “f

or veterinary use only ,” ten bottles of superglue, cotton balls, a m assage table, and a large container of silicone. ¶12. T h r e e o f t h e p r o s e c u t i o n ’ s w i t n e s s e s w e r e medical experts. During cros s exam ination, Dr. Constanti no Mendieta, a plastic and r econstructive surgeon, rejected the

5suggestion that G ordon’s death was caused by silicone that had been injected prior to March

2012. Dr. Stankey eva testif i ed that G ordon was treated f or comp l i c a t i ons related to the March 2 012 silicone injections. Dr. Atkinson testi f i e d that the March 2012 silicone injections caused Gordon’s death. ¶13. Gar n e r c h o s e n o t t o testif y , and she did not c all any w i tnesses in her def ense. As

m entioned above, the jury f ound h e r g u ilty o f depraved-heart m urder and conspiracy to

com m it wire f

raud. Following her unsuccessf u l m otion f

or a JNOV, Garner appeals. 2
DISCUSSION I. Ex p ert Testim ony ¶14. Garner claim s that each o f the prosecution’s m edical experts provided inadm issible testim o ny . “[ T]he a dm ission of expert testim ony is within the discretion of the trial court.” Gray v. S tate , 2 0 2 So. 3d 243, 256 (¶46) (Miss. C t. A pp. 2015). W e will n ot reverse the trial court’s decision to adm it e xpert testim ony unless i t “ w a s arbitrary and clearly erroneous,

am ounting to an abuse of discretion.” Id

. ¶15. A w itness qualif

i ed as an expert m ay testif y i n t h e f o r m of an opinion if “(1) the testim o ny is based on suf f icient f acts o r data, (2) the testim ony i s the produc t of reliable principles and m ethods, and (3) the w itness has applied t h e p r i n c iples and m ethods to the

2 G arn er d i ed d u rin g th e p e n d en cy o f th is ap p eal. H er b ro t h er, S y lv ester G arn er, h as su ccessf u lly m o v ed to b e su b stitu ted as a p arty

. S ee M .R .A .P

. 4 3 (a); G o llo tt v. S ta te , 6 4 6 S o . 2 d 1 2 9 7 , 1 3 0 5 (M iss. 1 9 9 4 ). 6f

acts of the case.” M.R.E. 70 2

. 3 In short, expert testim ony m ust be relevant and reliable.
W illie v. State , 204 So. 3d 1268, 1273 (¶12) (Miss. 2016). It is r elevant when it h elps the jury understand the evidence or resolve a f act in issue. Id

. It “is reliable when it is based upon suf f i cient f acts or d a ta, [ when i t] is the product of reliable principles and m ethods, a nd when the w itness has applied the principles a nd m ethods reliably to the f acts of the case.” Id

. The Mi s s i s s i p p i Suprem e Court h a s provided the f ollowing list of nonexhaustive f actors that a trial court m ay

consider when assessing reliability : whether the expert’s t heory can be or h as been t ested; whether the theory h as been the s ubject of peer review and publication; the known or potential rate of err or of the technique or theory when applied; t he existence of standards to control the technique’s operation; and the general acce p t a n c e the theory h as garnered in the relevant expert com m unity

. I d

. a t 1 273-74 (¶12). A s the “gatekeeper,” the trial court “m ust m a ke a prelim inar y

assessm ent r egarding the scientif i c validity of t he reasoning or m ethodology underly ing the expert testim ony and the proper application o f t hat r easoning or m e thodology to the f acts of the case at issue.” Id . at 1274 (¶12). ¶16. Garner claim s that all three experts’ opinions sh o u ld have been excluded under the reasoning discussed in Hawkins v. Florida , 933 So. 2d 1186 (Fla. Dist. Ct. App. 2006). Mark Hawkins was convicted of the unlicensed practice o f m edicine causing death, f elony third3 E f f ectiv e Ju l y

1 , 2 0 1 6 , R u le 7 0 2 w as “am en d ed as p art o f th e g en eral resty lin g o f th e E v id en ce R u les to m a k e t h em m o r e easily u n d e rsto o d an d to m a k e sty le an d term in o l o g y co n sisten t th r o u g h o u t th e ru l es.” M .R .E

. 7 0 2 ad v iso ry co m m ittee’s n o te. W e q u o te th e v ersio n o f

R u le 7 0 2 th at w as in ef

f ect at th e tim e o f

G arn er’s trial. 7degree m

urder , a n d c ulpable negligence af ter he injected silicone into Vera Lawrence’s buttocks, and she died a f ew hours later due to what was described as “m a ssive sy stem atic silicone e m

bolism .” Id

. at 1 1 87-88. At Hawkins’s trial, Dr. Erston Price, the associate

m edical exam iner who c onducted Lawrence’s autopsy , “testif ied that L awrence was injected in the subcutaneous tissue i n her buttocks, which broke capillaries within t he area of the hips and b uttocks, and a llowed the silicone to travel into the bloodstream .” Id

. at 1188. “In other words, the silicone essentially clogged the veins and arteries until the heart could n ot pum p blood suf f icien t l y t o s u s t a in the body

. ” Id

. D r. Price explained “that even t hough the silicone was not injected intravascu l a r l y , it ‘could have m igrated into’ [ Lawrence’s] bloodstream .” Id

. ¶17. Based on the evidence that the victim “had m any , m any injections of silicone over a considerable p eriod of tim e,” Dr. Price could n ot “rule o ut the possibility that p rior silicone injections m ay h ave contributed to Lawrence’s death.” Id

. Dr. Price also “conceded that she

was not an expert regarding the m echanism o r s peed that silicone m igrates through the body .” Id

. And “she c ould point to nothing to support her conc lusion t hat an injection of liquid sil i c o n e c o u l d m igrate through the vascular sy stem a s quickly as w ould have been
necessary f or the silicone injection . . . to have caused Lawrence’s death.” Id

. ¶18. The Hawkins c ourt held that Dr. Price’s opinion testim ony w as inadm issible because,

as she conceded, she was unqualif ied to render i t. Id

. at 1190. Hawkins also held that Dr. Price’s opinion testim ony r e g a r d i n g the m i gration rate of silicone was i nadm issable under

8Frye v. United States , 293 F. 1013, 1014 (D.C. Cir. 1923), because the prosecution did not

show that it was “suf

f iciently e stablished to have gained general acceptance i n the particular f ield in which it belongs.” Hawkins , 933 So. 2 d at 1190. There was no testim o ny regarding the m igration r ate of s ilicone in the body that was “based upon scientif ic principles of

how silicone t ravels in and is absorbed by t h e body , ” as com pared to cases that hinge on the abs o r p t ion rate of consum ed alcohol. Id

. Garner reasons that the prosecution’s three
p hy sician experts should not have been allowed t o testif y that t he March 2012 silicone injections were the cause of Gordon’s death. ¶19. F i r s t a

n d f o r e m o st, our S uprem e Court has rejected the Frye “general acceptance” te s t , which “can result in the e xclusion of relevant evidence o r the adm ission o f unrel i a b le evidence.” Miss. Transp. Comm’n v. McLemore , 8 6 3 S o . 2 d 31, 39 (¶23) (Miss. 2003). Second, the f

acts in Hawkins a re n ot exactly on p oint with t his case. Lawrence died within hours of r eceiving silicone injections. H awkins , 933 S o. 2d at 1188. G o rdon d ied day s af ter her s ilicone injections. In H awkins , “there was e vidence of chronic use of i njections of silicone.” Id . Here, there was no such evidence. According to Gordon’s m edical records, her f a m ily said she h a d received prior s i l i c one injections “at least twice.” But Barber testif i ed that Gordon had never received silicone injections prior to the ones that Garner perf orm ed. And although Lawrence had “trouble breathing” shortly af ter receiving silicone injections, and her d eath was caused by “m assive sy stem a t ic silicone em bolism ,” there was

no t e s t i mo n y t hat silicone was d iscovered in any p articular part of her body

. Id

. Instead,

9there was only testim ony

that “Lawrence’s organs were ‘oily .’” Id

. In this case, there was testim o ny that pulm onary e m b oli were discovered d

uring Gordon’s treatm ent, and silicone

was discovered in her lungs d uring her autopsy

. And t h i r d , u n l ike Dr. Price in Hawkins ,

none of the prosecution’s experts conceded that they were unqualif ied to of f er their opinions.
In s hort, neither the legal standard nor the precise circum stances of H awkins a pply to this

case. Rather t h an f

i nding that Hawkins is persuasive authority to exclude any of the expert testim o ny at issue, we exam ine each witness’s testim ony under Mississippi law. A. Dr. Mendieta ¶20. D u r i n g t h e p r o s e c u t i on’s d irect exam ination, Dr. Mendieta testif ied that “100 per c e n t ” of his practice was devoted to plas t i c o r r e c onstructive b uttocks surgery , and he had perf orm ed m ore than 2,500 procedures during his career. H e said that silicone injections are “very dangerous” due to the im m e diate risk of death f rom pulm onary em

boli. However, he did not opine regarding the cause of Gordon’s death during direct exam ination. ¶21. On cross-exam ination, Dr. Mendieta responded af f irm atively when asked whether he

rem em b ered seeing r ecords in which G ordon and her f am i ly “had indicated that she had received t wo or three previous butt injections[ .]” In response to f u rther questions, Dr. Mendieta testif

ied that silicone f

rom prior injections could not have caused Gordon’s death.
Dr. Mendieta also explained that the risk of d eath w as r elated to the technique and placem ent of silicone injections. ¶22. On re d i r e c t , the prosecution asked Dr. M endieta about the “tim e f r am e that death

1 0occurs” af

ter s om e one receives silicone injections. Dr. Mendieta answered that death “could

occur alm o st i m m ediate[ ly ] to alm ost like three or f our weeks[ ,]” but “[ t]he m ajority of t hem will occur . . . around t he f irst f ew day s.” W h en asked about the sy m ptom s prior to death,
Dr. Mendieta said that o n e m i ght “experience shortness of breath,” coughing, o r c hest pain. Garner object e d “ a s f

ar a s the tim e[ ]f

ram e” because t here were “really n o studies and no data here . . . .” The circuit court sustained Garner’s objection. ¶23. The p r o s e c u t i o n t h e n asked when death would occur a f t er silicone injections. Dr. Mendieta answered, “ Day s .” Garner objected again. She argued that t he prosecution had not provided that inf

orm ation duri n g discovery , and t hat Dr. Mendieta’s testim ony was “speculative b ecause [ there w ere] so m any varia b l e s . . . .” The c ircuit court asked the prosecution to lay a f

oundation and “[ s]how that [ Dr. M endieta] has knowledge about this area.” In r esponse to the prosecution’s next q uestion, Dr. Mendieta testif i ed that he had not treated people who h a d received s ilicone injections and subsequently died f rom them , but he “had been consulted on i t,” he understood “ t h e e n t i r e process of silicone,” and it was his “specialty .” T h e prosecution began to ask Dr. Mendieta whether h e had “ read literature regarding” som e subject, but Garner’s attorney objected and asked to approach t he bench bef ore t he prosecution could f i nish its question. Af

t er the u nrecorded bench conf erence, Dr.
M e n d i e t a testif

ied without additional objection that if death were going to result f rom silicone injections, it would occur within “day s” or “weeks.” ¶24. On ap p e a l , G a r n e r c l a i m s the circuit court erred when it a llowed Dr. Mendieta’s

1 1redirect testim ony . Accordi n g t o G a rner, Dr. Mendieta’s testim ony was unreliable and

bey ond the scope of his expertise a s a plastic a nd reconstructive surgeon. Garner also argues that Dr. Mendieta did not r ely on any scientif ic m ethod o r principle to reach his c onclusion. She adds that Dr. Mendieta did n ot m ention the speed that s ilicone t ravels through the body

. ¶25. The c ircuit court d id not abuse its discretion when it allowed Dr. Mendieta’s redirect testim o ny . During direct exam ination, Dr. Mendieta t estif ied that there w as a n “im m ediate” risk of death af

te r r e c e i v ing s ilicone injections. On cross-exam ination, Garner’s attorney asked Dr. Mendieta questions suggesting that Gordon died due to prior silicone injections. Having essentially asked Dr. Mendieta to opine as t o what caused Gordon’s death, Garner then sought to prevent D r. Mendieta f rom testif y ing f urther on that s ubject d

uring his redirect testim o ny . B ut “[ w ]hen the def e nse attorney inquires into a subject on cross-exam ination of the State’s witness, the prosecutor on rebuttal is unquestionably entitled to elaborate on the

m atter.” Cavett v. State , 717 S o. 2d 722, 726 ( ¶22) (Miss. 1998). A f ter G a r n e r a sked whether prior injections c aused Gordon’s death, it was logical f or the prosecution to ask Dr. Mendieta to explain why they had not. Dr. Mendieta did so when h e c larif ied the tim e f

r am e that death could result af te r receiving silicone injections. Thus, the circuit court did not abuse its discretion when it allowed Dr. Mendieta’s redirect testim ony . ¶26. Even if Garner’s attorney had n o t o p e n e d t h e d o o r t o D r . M endieta’s redirect testim o ny , the c ircuit court did not abuse its d iscretion when it allowed him to testif y regarding the tim e that som eone could d ie af ter r eceiving silicone injections. “The scope of

1 2the witness’s knowledge and experience, and n o t a n y artif icial classif

ication, governs the question of a dm issibility .” Univ. of Miss. Med. Ctr. v. P ounders , 970 So. 2d 141, 146 (¶17) (Miss. 2007). I t w as within the circuit court’s discretion to f ind that Dr

. M e n d i e t a ’ s education, experience, and training would have m ade him knowledgeable of

the particular dangers of s ilicone i njections. And Dr. Mendieta’s t estim ony hel p e d t h e j ury resolve a f actual dispute – whether the March 2012 injections were the cause of Gordon’s death.

B. Dr. Stankey eva ¶27. Next, G arner argues that Dr. Stankey eva should not have been allowed to testif y that Gordon’s sy

m p t om s were c aused by the March 1 6, 2012 i njections. Dr. Stankey eva testif ied

as a n expert in internal m edicine. She was also a f actual witness in that she treated Gordon in the em e rgency room . According to Dr. Stankey eva, af ter initially treating G o r d o n f or pneum onia, testing revealed that Gordon “ had sm all em b oli in her lung s [ , ] w h i ch are like clots blocking out the blood vessels in her lungs

. . . . ” Dr. Stankey eva then testif ied that Gordon’s March 2012 s ilicone injections had caused her sy m p tom s . Dr. S t a n k e y eva explained that her opinion w as “[ b]ased on the inf o rm ation that [ she] had t hrough [ G ordon’s] hospital stay

and the inf

orm a tion that was given to [ her] in history

. . . .” G arner objected, and the circuit court excused the jury

. ¶28. Outside of the jury ’ s presence, Dr. Stankey e v a s a i d t h at Gordon’s sy m ptom s were consistent with som eone who had recently r eceived silicone i njections. W hen asked how Dr. Stankey e va reached that opinion, she explained that Gordon:

1 3presented with shortness o f b r e a th. In the docum entation f rom Piedm ont Hospital where she c am e f irst it states that s he d eveloped sy m ptom s right af

ter receiving injection[ s]. At our h ospital she had a CAT scan which showed - - pulm onary em

boli[ ,] which is consistent with what m ay happen w ith a s i licone injection, a nd she had a silicone i njection about which s he told u s. So putting all this inf orm ation together the m ost likely scenario that explained her clinical picture was s ilicone em

bolization into h er lungs f rom an i nje c t i o n [ that she] received on March 16th. Dr. Stankey eva also said that “in order f or silicone to get into the lung[ ,] it has to enter the bloodstream , and one way f or it to enter t he bloodstream would be [ t hat] the i njection of the needle penetrated the blood vessel.” She went on to opine that p r i o r injections had not caused Gordon’s death. Af ter voir dire, Garner argued that Dr. Stankey eva was not qualif ied
to testif y regarding the cause of Gordon’s death. G arner also argued that Dr. Stankey eva’s

c o nclusion was unreliable f or a num ber of reasons. The circuit court h eld that Dr. Stankey e va could testif

y as to her treatm ent o f Gordon, but she could not testif y “as to the cause of death.” ¶29. Af ter the jury

returned to the courtroom , Dr. Stankey eva testif ied that “the cause of [ Gordon’s] s y

m ptom s w as thought to be pulm onary em bolism [ s] in her lungs[ ,] w hich were thought to be caused by silicone” injections t hat G ordon received on March 16, 2012. She f urther opined t hat a needle had punctured a blood v e s s e l i n G ordon’s buttocks, and the silicone f ollowed her bloodstream until it l odged in sm all b lood v essels in Gordon’s lungs. ¶30. On appeal, Garner arg u e s t h a t D r . S t a

n k e y eva’s t estim o ny was not suf f iciently reliable because i t had not been verif ied through scientif

ic testing or subject to peer r eview. Garner also argues that Dr. Stankey eva did not know how silicone reacted in the b ody , and she could
1 4not be certain that prior injections h ad not caused Gordon’s sy m ptom s. According to Garner,
D r . Stankey eva im

properly believed t hat the m ost r ecent injections caused Gordon’s
sy m p tom s based solely

on their tem

poral proxim i ty

. ¶31. As with Dr. Mendi e t a , i t w a s w i t h i n t h e c i r c u i t court’s discretion to allow Dr. Stankey e va’s testim ony . Dr. Stankey e va’s testim ony r elated to her treatm ent of Gordon, and the likely causes of Gordon’s sy m ptom s. In part, Dr. Stankey eva testif ied as a lay witness. “[ A] treating phy sician [ ma y ] testif y as a lay witness about the f a cts and circum stances surrounding the c are and treatm ent of the patient.” Griffin v. McKenney , 877 So. 2 d 425, 439 (¶50) (Miss. Ct. App. 2003) (citing Scafidel v. Crawford , 4 86 So. 2d 370, 372 ( Miss. 1986)). However, Dr. Stankey e va was also an expert in internal m edicine. Based on her education, training, and experience, Dr. Stankey eva w as qualif ied to of f er her expert opinion regarding how silicone c an enter the b loodstream and lodge in one’s lungs, and why that w ould support

a conclusion that recent s i licone injections were the cause of Gordon’s s y m ptom s. That expert testim ony was helpf ul t o the jury , and it was w ithin the circuit co u r t ’ s discretion to f ind that it was suf

f i ciently reliable. Furtherm ore, Daubert v. Merrell Dow Pharmaceuticals
Inc. , 5 0 9 U.S. 579, 5 93 (1993), does not state t hat expert testim ony is p er se i nadm issible if the substance of

the testim ony

has never been t he subject of peer review. Kumho Tire Co.

v. Carmichael , 526 U.S. 137, 151 (1999). It i s u n c l e a r how the tim e between Gordon’s injections and her death could b e reduced to a reproducible, t e s t a b l e event – p articularly given the i llicit, c landestine nature of the circum stances. But that d oes not necessarily m ean

1 5that a m edical prof essional would be unable to reliably c o n c l u de that the s u dden onset of Gordon’s sy

m ptom s c ould not be traced to her mo s t r ecent injections. W e f i nd that it was within the circuit court’s discretion to allow Dr. Stankey eva’s expert testim ony .

C. Dr. Atkinson ¶32. Finally , Garner a rgues that Dr. Atkinson should not have been allowed to testif y that the March 16, 2012 silicone injections c aused Gordon’s death. Dr. Atkinson testif ied as an expert in f

orensic pathology

. H e explained that there was a “clear[ ,] viscous liquid” within
cy st-like spaces in Gordon’s buttocks. He also f ound hem orrhaging, and explained that “[ i]f there’s hem orrhage, that m eans i t’s relatively acute, m eaning relatively recent.” He said that it would have occurred within a week o r two of Gordon’s death. According to D r. Atkinson,

som e of the silicone’s p roxim ity to a hem atom a, a “large collection of blood,” suggested that “injecting all of this silicone i nto the sof t tissue u nder the skin led t o t h e h e m orrhages and led to the disruption of

. . . the vasculature[ ,] which u ltim ately led to [ Gordon’s] death with the silicone em

boli.” W hen Dr. Atkinso n b e g a n to testif y about the silicone f

ound in Gordon’s lungs, Garner’s attorney objected, and the circuit court excused the j urors f rom the
courtroom

. ¶33. Ou t s i d e o f t h e j ury ’s presence, Garner’s a ttorney voir dired Dr. Atkinson about his “training

. . . with respect to silicone.” Dr. Atkinson explained that silicone w as o ne of m any f oreign substances that m ay enter a body , an d i t was “ i ncorporated i n m edical school, residency , f

ellowship, et cetera.” U nsatisf ied, Garner’s attorney continue d t o ask Dr.

1 6Atkinson about his s pecif ic training with silicone. Dr. Atkinson responded t hat “in f orensic pathology , [ he]

. . . deals with f oreign substances such as silicone in j e c t e d i n to the body .” Still unsatisf

ied, Garner’s a ttorney asked if Dr. A t kinson had “taken a c lass with s ilicone in the nam e.” Dr. Atkinson said he d id not know w hether there w as such a class. In response
to f urther questions, he did not know whether he had taken a class where he was required to read a book or article about silicone, and he had not w ritten any books, m uch less one about silicone. As f

o r the rate that silicone would m ove through one’s body , Dr. Atkinson could
not provide a precise answer. Howe v e r , h e t e stif ied that there were “ a l ot of param eters” regarding that subject, it depended on how t he s ilicone e n t e r e d t h e bloodstream , and once there it would “m ove at roughly the speed of the blood.” Dr. Atkinson also said that it was his f irst case i n which silicone w as the c a u s e o f d e ath, a l though he had another case af ter Gordon’s. He added that “every case is unique to som e degree.” ¶34. Af ter voir dire, Garner a

r g u ed t hat Dr. Atkinson was unqualif ied to testif

y that Gordon died because of the March 2012 silicone injections, and the m e thodology f or his conclusion

was not suf

f iciently reliable. The circuit court overruled Garner’s o bjection. T h e j ury returned to t he courtroom , and Dr. Atkinson testif i ed that the March 2012 silicone i njections

were the cause of Gordon’s dea t h

. H e a lso testif ied t hat “in m any . . . capillary beds [ in Gordon’s lungs] there was just silicone throughout[ ,] which is what led to the sy m p tom s that she had and ultim ately her death.” Dr. Atkinson also explained t h a t h e c o u ld tell the substance was silicone b e cause when he viewed stained tissue s am ples under a m icroscope,

1 7he n oticed that “when y ou run it t hrough y our stainer, the actual silicone gets dissolved away ,

so y ou end up with perf

ect l ittle punched[ -]out spaces where the silicone was when the tissue

was em bedded in t he paraf

f in wax.” Dr. Atkinson d escribed it as “a f airly straightf

oward and
easy d i agnosis to m ake under the m icroscope . . . .” ¶35. Garner reasserts t hat Dr. Atkinson w a s u n q u a l i f i e d t o o pine that the March 2012 silicone injections c aused Gordon’s death. The circuit court did not abuse i ts discretion when it held that Dr. A t k i n s o n , a board-certif ied f orensic pathologist, was qualif ied to testif

y regarding the cause of Gordon’s dea t h based on his “training, skill, and experience.” The f act that it was h is f

irst autopsy i nvolving s o me o n e who had d ied f rom pulm o nary em

boli related t o s i l i c one injections does not invalidate his training, experience, or education. Likewise, the circuit court did not abuse its d iscretion when it held that the m e t hodology f or Dr. Atkinson’s conclusion was suf f iciently reliable. Dr. Atkinson explained that the rate in which s ilicone enters the b loodstream would be subject to a n umb e r of param eters. There

was no s uggestion that this f atal event c ould be reduced to som ething testable. B u t a s Dr. Atkinson explained, once the s ilicone entered Gordon’s b loodstream , it would have traveled through the body a t the sam e rate a s her b lood. “Requiring that the s u b j e c t o f expert testim o ny be known to a certainty is not necessary . . . b ecause, a s the D aubert Court pointed out, ‘there a r e n o certainties in science.’” Poole e x rel. W rongful Death B eneficiaries of Poole v. Avara , 908 So. 2d 716, 723-24 (¶15) (Miss. 2005). This issue is m eritless.
II. Conspiracy to Com m it Wire Fraud

1 8¶36. Garner argues that she should not have been convicted f o r conspiring with Stewart to

com m it wire f

raud by f a lsely r epresenting that Garner was a licensed m edical prof essional, and by causing Gordon to electronically transf er $200 to S tewart. According to G arner, the doctrines of

collateral estoppel a nd/or res j udicata preclude her f rom being f ound guilty

of conspiracy because Stewart h ad been acquitted of that charge in January 2014. See Stewart

v. State , 211 So. 3d 724, 7 26 (¶7) ( Miss. Ct. App. 2016). Garner reasons that the circuit court erred when it denied her m otion to dism iss the conspiracy charge. ¶37. Neither res judicata nor collateral estoppel p recludes G arner’s conspiracy conviction. “[ R]es judicata is a doctrine of p ublic policy designed to a void the expense of m ultiplicity of litigation and f

oster reliance o n judicial action b y m inim izing possibilities of inconsistent decisions.” W

ebster v. State , 817 S o . 2 d 5 1 5 , 522 (¶29) (Miss. 2002). One of the f our necessary identities – the parties t o the cause of action

– is not satisf i ed because Garner was not a party

to Stewart’s trial. See id at (¶31). ¶38. Collateral estoppel is also inapplicable because Garner was not a party t o Stewart’s trial. See State v. Oliver , 8 5 6 S o . 2d 328, 331 (¶7) (Miss. 2003) (“[ C]ollateral estoppel provides that an issue of ultim ate f act d eterm i ned by a prior j udgm ent m ay not be relitigated between the same parties in a subsequent action.” (Em phasis added)). In f

act, the Mississippi Suprem e Court has h eld t hat c o llateral e s toppel “doesn’t w ork at a ll in crim inal cases.” Id

. “This is so because by no stretch of the im agination c an a not[ -]guilty verdict be said to establish af

f irm atively that the def

endant was innocent of the crim e.” I d

. Instead, it:

1 9m eans that the jury f ailed to f ind bey ond a reasonable doubt that the def endant was guilty

. T he jury m ay well have concluded that there was strong evidence against the def

endant though of a l e s s e r d ignity than bey ond a r easonable doubt. For exam

ple, the ju r y ma y h a v e f ound by a preponderance of the evidence that the def

endant was guilty

. T he jury m ay even have consider e d that the evidence of guilt was clear and convincing but because it d id not rise to the dignity o f b e y o n d a reasonable doubt nevertheless, taking t heir oaths seriously , the jurors returned a not[

- ]guilty verdict. Id

. It is the prohibition against double jeopardy , r ather than collateral estoppel, that precludes re-prosecution of a def

e ndant who had been acquitted incident to a prior trial. Id

. at 332 (¶7). ¶39. Regardless of t h e p r e c i s e l egal term inology , G arner’s argum ent is essentially that Stewart’s acquittal f

or conspiracy m

ust result in her own acquittal. The Fif th C ircuit Court

o f A p p e a ls h as rejected a practically identical claim and held that the acquittal of all other alleged co-conspirators does not prevent an accused f rom being convicted of the sam e conspiracy

. United States v. Zuniga-Salinas , 952 F.2d 876, 878 (5th Cir. 1 9 9 2 )

. T his is because the acquittal of the alleged co-conspirators m ay have b e e n t h e r esult o f m istake,

com prom ise, o r lenity

. Id

. Although Zuniga-Salinas is not binding precedent, we a gree with its reasoning. Thus, Stewart’s acquittal f or conspiracy

– i n a nd of itself

– has no im pact on Garner’s conviction f

or the sam e of

f ense. ¶40. That leaves Garner’s claim that there was insuf

f icient evidence to f

i nd her guilty

of conspiracy to com m i t w i r e f raud. More specif

ically , Garner claim s that there was insuf f icient evidence that she and Stewart had an agreem ent to com m i t wire f raud. As we review this issue, we consider the e vidence in the light m ost f avorable to t he State. Graham

v. State , 204 So. 3d 329, 336 ( ¶21) (Mi s s . Ct. App. 2016). “If any r easonable trier of f act
2 0could have f ound the essential elem ents of the crim e bey ond a reasonable doubt, [ an appellate c] o u r t will not disturb the verdict.” Graham v
. State , 120 S o. 3d 382, 3 87 (¶18) (Miss. 2013). ¶41. “A conspiracy occurs when two or m ore [ peop l e ] a gree to accom plish an unlawf

ul
purpose, o r agree to accom plish a lawf

ul purpose unlawf

ully .” Id

. at (¶19). “A conspiracy is a com pleted of f e nse and d oes not require proof of an over t a c t i n f u r therance of the conspiracy .” Id

. “[ N]o express a greem ent is r equired; an agreem ent can be inf e r r e d f rom
t h e surrounding circum stances, such a s the declarations, acts[ , ] and conduct of t he alleged conspirators.” Id

. The governm ent m a y prove that som eone is guilty of conspiracy “entirely b y c i r c um stantial evidence,” but there m ust be “ s om e evidence that a def endant ha s associated [ her]self with the v enture in s o me f a s h i o n, participated i n i t as som ething that [ s]he wished to bring about, or sought by [ her] action to m ake it succeed.” Id

. ¶42. The prosecution essentially al l e g e d t h a t S t e w a rt and G arner h ad an agreem ent to induce Gordon to wire Stewart a $200 ref erral f ee by f raudulently r epresenting that Garner

was a nurse. T he problem i s t h e c o mp l e t e lack of evidence, direct or circum stantial, that Stewart knew G arner was not a nurse. Stewart was not called a s a w itness during Garner’s trial. No evidence even suggested that Stewart k new Garner was not a nurse. “ An individual acting alone and without a partner m ay not conspire

. . . .” Mitchell v. State , 572 S o. 2d 865, 867 (Miss. 1990) ( c i t i n g James v. State , 4 81 So. 2d 805, 8 08 ( Miss. 1 985) (“One who ‘conspires’ with him sel f

. . . is n o t guilty of the crim e of c onspiracy in this state.”)). “The

2 1union of the m inds of at least two persons is a p rerequisite to the com m ission of the of f ense,
or, s tated dif

f erently , at least two p ersons m ust agree f

or a conspiracy to e xist.” James , 481 So. 2d at 808. “It is n o t required bef ore one m ay be guilty o f conspiracy that he either initiate the plan o r have intended to pull the trigger h im self

. So long as the accused has knowingly undertaken to play a part in a com m on plan [ to com m it a n unlawf ul a c t ] , h e i s guilty of

con s p i r a c y . ” Id

. at 8 10. Garner was not a ccused of wire f raud by u sing S tewart as an i n s t r u me nt t o support her claim to be a nurse. Viewing the evidence in the light m ost f avorable to th e S t a t e , there was no evidence of a union o f Stewart’s and Garner’s m inds
reg a r d i n g the f

act that Garner w as not a nurse. Said dif f erently , t he r ecord is s ilent as to whether S tewart earnestly believed that Garner was a nurse. It f ollows that reasonable jurors could not have f

o und Garner guilty of conspiracy

. S ee Lee v. State , 756 So. 2d 7 44, 747 (¶10) (Miss. 1999) ( “The evidence was insuf f icient to show a recognition on t he part of the conspirators that they [ w e]re entering into a com m on plan and knowingly intend[ ed] to f urther i ts com m o n purpose.”). Consequen t l y , we reverse the circuit court’s j udgm ent f inding Garner guilty of conspiracy to com m it wire f raud and render a judgm ent of acquittal to that charge. CONCLUSION ¶43. The circuit court did not err when it allowed the expert testim ony challenged above. And although Stewart’s acquit t a l f or conspiracy did n ot preclude Garner’s conspiracy conviction as a m atter of law, the circuit court e rred when it d enied Garner’s JNOV m otion

2 2challenging her conviction f or c onspiracy to c om m it wire f raud. Garner ’ s c onviction f or depraved-heart m

urder is af

f irm ed, and her conspiracy conviction is r eversed a nd rendered. ¶44. AFFIRMED IN PART; REVERSED AND RENDERED IN PART. LEE, C.J., I RVING AND GRIFFI S, P.JJ., BARNES, FAIR, WILSON, WESTBROOKS AND TINDELL, JJ., CONCUR. CARLTON, J., C ONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. CARLTON, J., CONCURRING IN PART AND DISSENTING IN PART: ¶45. In this case, I would af f irm the judgm ent and conviction of t he c ircuit court, including Garner’s conviction f

or conspiracy to com m it w i re f raud. I f ind that t he m a

jority m isapplied the law as to the conspiracy to com m it wire f raud charge as s et f

orth in Count III of Garner’s indictm ent. I theref

ore concur in part and dissent i n part with the m ajority ’ s opinion. The

ma j o r i t y s tates that the record contains no e vidence, direct or circum s tantial, that Stewar t earnestly believed that Garner was a nurse. Upon its determ ination that no evidence exists
to s how a union of Stewart’s and Garner’s m inds r egarding the f a c t t h a t Garner was n ot a
nurse, t he m ajority f

i n ds that t he circuit court erred by deny ing G arner’s m otion f or a judgm ent notwithstanding the verdict (JNOV) challenging her conviction f o r conspiracy to

com m it w ire f

raud. The m ajority then reverses Garner’s conviction f or conspiracy to com m it wire f raud (Count III) and renders a judgm ent of acquittal as to that charge. ¶46. W h en reviewing the suf f iciency of the evidence, w e “ m ust give the State the benef it of all f avorable inf

e rences that m ay reasonably be d rawn f rom the evidence.” Cowa r t v. State , 178 So. 3d 651, 666 (¶41) (Miss. 2015) (internal q uota t i o n ma r k s o m itted). The

2 3suprem e court has explained t hat “if any rational trier o f f a c t could have f

o und each and

e v e r y one of the elem ents of the crim e bey ond a reasonable d oubt, when viewing the evidence in the light m ost f avorable to the prosecution, the verdict m ust stand.” Id

. ¶47. Count III of

Garner’s indictm ent charged as f ollows: [ B]ased o n a s e r ies of acts connected together and constituting parts of a com m on schem e or plan, on or about M arch 16, 2012, in Hinds County , Mississippi, [ Garner] d id conspire w i t h a n o ther person to c om m it a crim e, to-wit: on or abou t M a r c h 16, 2012, [ Garner] and [ Stewart] did w illf ully , unlawf u lly , and f

e lonio u sly , corruptly agree, conspire and conf ederate, each with the other, to com m it wire f raud, in violation of [ s]ection 97-19-83

. . . by m aking or causing to be m ade a f alse representation to [ Gordon] that [ G arner] was a licensed m edical prof essional when in f

act she was not, and b y causing the transf er o f two h u ndred dollars ($200.00) f rom [ Gordon] to [ Stewart] by the use of a Green Dot card, and f or the p urpose of executing s uch schem e or artif ice or attem

p ting so to do, transm itted o r caused to b e transm itted by m ail, telephone, wire, electrom agnetic w a v e s , m icrowaves, or other m eans of com m unication or b y person, any writin g s , s i g ns, signals, pictures, sounds, data, or other m atter across county o r s t a t e jurisdictional lines, in direct violation of [ s]ection 97-1-l(a)[ .] ¶48. Jurisprudence ref

l ects t hat “the elem ents of a conspiracy ‘require r ecognition on the part of the conspirators that they are entering into a com m o n plan and knowingly intend to f urther its com m on purpose.’” Berry v. State , 9 96 So. 2d 782, 786-87 (¶12) (Miss. 2008) (quoting Sanderson v. State , 8 83 So. 2d 558, 560 (¶8) ( Miss. 2004)). T o prove conspiracy , the S t a t e m

ust “show that two or m ore persons agreed to c om m it a crim e or agreed to

accom plish a n unlawf

ul p urpose.” Id

. at 787 (¶12) (quoting Morgan v. State , 741 So. 2d 246, 255 ( ¶26) (Miss. 1999)). However, the State is “not required to s how that the parties entered

an express or f

orm al a greem ent. A conspiracy can be proven by the acts and conduct of the

2 4alleged c onspirators and can be inf erred f rom the circum stances.” I d . at (¶13). This Court has also held that “conspiracy can be p roven entirely by circum stantial evidence.” Thomas

v. State , 180 So. 3d 756, 7 62 (¶19) (Miss. Ct. App. 2015) (internal quotation m arks om itted). ¶49. Turning t o review the e vidence presented at trial, the transcript ref lects that Barber testif i ed that Gordon and Stewar t com m unicated via e m ail over several y ears regarding Gordon’s desire to receive b utt enhancem ents. The State subm itted evidence showing that in one em ail Gordon s ent to Stewart, dated N ovem ber 14, 2011, G ordon told Stewart that she “is still looking f

or a go o d b u t t j o b like y ours. If y ou are interested in helping m e with a ref erral p lease give m e a call.” Gordon also told Stewart t hat she would com pensate her “f

or this secretive inf

orm ation.” Barber testif i ed that Stewart ref

used to give Gordo n the inf orm ation over t he phone, so Barber a n d Gordon f lew to New York in February 2012 to

m eet Stewart. Barber stated that while in New York, Stewart told Barber and Gordon that

“ a lady nam ed Tracey ” perf orm ed her butt injections, and had been doing so f o r y e a r s . 4
Barber testif

ied t ha t S t e w a rt expressly represented to her a nd Gordon t hat Garner was a

nurse. Barber testif

ied that during the New Yo r k trip, she and Gordon becam e aware that

4 W e reco g n i z e t h a t “[ a] n o u t-o f -co u rt statem en t is n o t h earsay if th e s tatem en t is o f f ered ag ain st a p arty a n d is a statem e n t b y a co - co n sp irato r o f a p arty d u rin g th e co u rse an d in f u rth eran ce o f t h e co n sp i racy .” F a rris v. S ta te , 7 6 4 S o . 2 d 4 1 1 , 4 2 9 (¶6 0 ) (M iss. 2 0 0 0 ) (q u o tin g M .R .E

. 8 0 1 (d )(2 )(E )) (in tern al q u o tatio n m ark s o m itted ); see a lso G a rriso n v. S ta te , 7 2 6 S o . 2 d 1 1 4 4 , 1 1 5 0 (¶1 6 ) (M iss. 1 9 9 8 ) (q u o tin g M .R .E

. 8 0 1 (d )(2 ) (E )) (in tern al q u o tatio n m ark s o m itted ) ( “[ A ] statem en t b y a co -co n sp irato r o f a p arty d u rin g t h e co u rse an d in f u r th eran ce o f th e co n sp iracy is n o t h earsay .”). We rev iew t h e trial c o u rt’s ad m issio n o r su p p r e s s i o n o f testim o n y f o r an ab u se o f d iscretio n . A n d erso n v. S t

a t e , 6 2 S o . 3 d 9 2 7 , 9 3 3 (¶1 3 ) (M iss. 2 0 1 1 )

. 2 5S t e w art w anted $200 f or a ref erral f ee f or providing Garner’s inf o rm ation to them : “ We knew about the Green Dot ref erral f ee ever since New York.” ¶50. Barber stated that on M arch 16, 2012, she a nd Gordon traveled f rom Atlanta, Georgia,
to Jackson, Mississippi, s o that Gordon c ould receive butt injections f rom Garner. According
to Barber, as soon as s he and Gordon arrived i n Jackson, they s t opped at a W algreens so that Gordon could obtain a G reen D ot Money Pak card to wire $ 200 to S tewart. Barber testif ied that S tewart had originally planned to m eet them at Garner’s house, but the m o rning of the trip, S tewart inf

o rm ed G ordon that she was not g oing to b e in Jackson that day

. Barber stated that “ bef ore [ they ] lef

t Atlanta[ ,] Gordon w as on t he phone with [ Stewart] and [ Stewart] was

on speakerphone say ing that she was going to be here so that’s why [ Gordon] had to get the Green Dot.” ¶51. Barber also testif

ied that on the m orning of the trip, G arner and Gordon h ad been in

com m unication, and Garner gave Gordon an address, w hich Gordon wrote down. 5 Barber testif i ed that she originally thought Gordon wrote down Garner’s address, b ut it was actually the a ddress to the W algreens. Barber expl a i n e d that “[ she] f ound out throughout this

5 T h e trial testim o n y ref

lects th e f o llo w in g ex ch an g e: Q

. Y o u j u st to ld u s th a t y o u h ad [ G arn er’s] n u m b er; rig h t ? A

. S h e h ad [ G arn er’s] n u m b er. [ G arn er] g av e h e r t h e a d d r e s s t o t h e Walg reen s. T h o se ad d resses, th o se n o tes t h a t sh e w ro te d o w n , th o se ad d r ess[ es] cam e f

r o m [ G arn er]

. We [ w ere] th i n k in g i t’s th e h o u se b u t it w as to th e Walg r e en s. 2 6investigation that that a ddress that [ G ordon] wrote was never to [ Garner’s] house[ ,] it was

to t he W algreens so [ Gordon] could wire the m oney over t o [ Stewart] b ef ore she [ c o uld] even f ind out where [ G a r n e r ’ s ] house [ was] at.” On redirect exam ination, Barber also clarif ied that Garner, not Stewart, sent Gordon the directions to W algreens: Q. Real quick, Ms. B a r b e r , j u st s o we’re clear[ ,] the directions that y ou received that m orning[ ,] who were they f rom ? A. [ Garner]. Q. Okay

. Now, these d irections were not t o [ Garner’s] house, were they ? A. No, it was to the W algreens. Q. And bef

o re y ou got to [ Garner’s] house y ou had to wire t he m oney to [ Stewart]; right? A. Yes, she did. ¶52. Barber testif

ied th a t a f

t e r a r r iving at W a l greens, Gordon paid t he $ 200 toward the Green Dot Money

Pak f rom W algreens, but t hat she (Barber) texted the num bers to Stewart
to com plete the wire process. Barber stated that she and G ordon later r eceived conf irm ation f rom Stewart telling t hem that she had received t h e $ 2 00. Barber and Gordon then called Garner, who gave them

directions to her house. ¶53. Barber testif

ied that when she and Gord o n a r rived at Garner’s house, Garner “was standing in scrubs and she did say she w as a nurse and we went f rom there.” Barber stay ed in a “little waiting area” in Garner’s house while Garner a nd G ordon went into another room . Barber testif

ied that im m ediately af

ter Garner injected Gordon, Gordon i nf orm ed B arber that

2 7she was in pain. Barber testif ied that Gordon started coughing bef ore they even lef

t Garner’s house. According to Barber, Garner suggested that G ordon t ake Benadry l and cough sy rup. ¶54. W h ile traveling back to Atlant a , B a r b e r t e s t i f ied that Gordon was v om iting and having trouble breathing. Barber stated that she had to stop m ultiple tim es to let Gordon def ecate

on t he side o f t h e road. Barber t estif ied that she and Gordon c alled Stewart and relay ed Gordon’s s y

mptom s to her. Stewart assured them that she had sim ilar sy m ptom s af ter receiving injections, and she suggested that t hey stop and get a breathing treatm ent. Stewart
t o l d t h e m not to stop at a ny hospitals on the way back to A tlanta. Stewart also instructed them “not to tell what happened and to say t hat [ Gordon] was a sm oker[ .]” Barber testif ied that Gordon did not want h er t o stop at a hospital, explaining that Gordon “was listening to them , listening to what they said,” and that Gordon wanted to “wait it out.” ¶55. The record r ef

lects t hat Helene Youngb l o o d , t h e a d mi n i s trator of W illow Creek Nursing H om e, t estif

ied t hat Garner worked at the nursing hom e f rom October 2 000 through
Decem ber 2010. Youngblood stated t hat Ga r n e r w o r k e d at the nursing hom e as a cook in
t h e dietary departm e nt, and not as a nurse. The jury also h eard tes t i mo n y f r o m representatives f

rom the Mississippi State Board f or Massage Therapy and the Mississippi State Board of

Medical L icensure stating that Garner was not a licensed m assage therapist

or nurse. The record also s h ows evidence seized f rom Garner’s residence included num erous needles, large-gauge sy

ringes labeled “f

or v eterinary use onl y , ” t e n bottles of superglue, cotton balls, a m assage table, and a large container of silicone.

2 8¶56. Nicole Murlowski, a representative f rom G reen Dot Corporation, e xplained that “[ a] G r e e n D ot Money

Pak is used to l oad cash onto a prepaid debit card, so y ou then h a v e t h e ability t o p urchase and pay and swipe transactions, debit transactions, online transactions.” Murlowski testif

ied that every Green Dot transaction and purchase goes through servers in
Las Vegas, Nevada, and Los Angeles, Calif ornia. Murlowksi testif

ied t hat at 11:30 a.m . on March 16, 2012, a Money P ak pin was p urchased at W algreens and loaded onto an account later t hat day

. Murlowski stated that according t o h e r records, S tewart received the $200 f rom t he W algreens Green Dot Money Pak t ransaction. Shannon Brown, r egional operations

m anager f

or Regions Bank, also provided testim o ny that $1,500 in cash was deposited into Garner’s account at 4:27 p.m . on March 16, 2012. ¶57. Lee McDivitt, an investigator with t h e M i s s i s s i p p i A t

t o r n e y G e n e r a l’s O f

f ice, testif ied that he subpoenaed Stewart’s and G arner’s phone records f rom A T&T. I n vestigator McDivitt stated that a ccording to these records, there w e r e a t otal of sixteen calls between Garner a nd S tewart on March 1 5 and 16, 2012. Yehoshua Blauch, an AT&T em ploy ee, also testif i ed that Stewart’s and Garner’s phone records ref l ected s i xteen calls between them on March 15 and 16, 2012. ¶58. The indictm ent ref lects that Garner and Stewart were nam ed as conspirators, and the record ref lects suf f icient e vidence of t he elem ents of the charged conspiracy upon which the jury could f

ind Garner guilty bey ond a reasonable doubt. See Cowart , 1 78 So. 3d a t 666 (¶41). Af

ter reviewing the evidence presented a t t r i a l , I subm it that the record contains

2 9suf

f i cient evidence to show that Garner did conspire w ith Stewart to com m it wire f raud by

m aking a f

a l s e r epresentation to Gordon t hat Garner was a licensed nurse, when in f act Garner w as not a licensed n u rs e , c a u s ing G ordon to transf er $200 to Stewart. I would theref ore af f irm the judgm ent of

the circuit court.

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