85 So.3d 913 (2012)
Michael Anthony FOUNTAIN, Appellant
v.
STATE of Mississippi, Appellee.
No. 2010-KA-01038-COA.
Court of Appeals of Mississippi.
April 10, 2012.
*915 Clare Sekul Hornsby, Calvin D. Taylor, Steven Benjamin Dick, attorneys for appellant.
Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
Before IRVING, P.J., ISHEE and RUSSELL, JJ.
ISHEE, J., for the Court:
¶ 1. Michael Fountain was convicted in the Jackson County Circuit Court of four counts of sexual battery; sentenced to thirty years for each count with the sentences to run concurrently with one another, all in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation; and fined $10,000 for each count. Fountain appeals his conviction arguing: (1) the trial court abused its discretion by allowing K.U.'s[1] testimony under the exceptions in Mississippi Rule of Evidence 404(b); (2) the trial court abused its discretion by excluding evidence of M.G.'s false allegation against her step-brother, Chad Gollott; (3) there was plain error in two of the jury instructions given by the trial court; and (4) the verdict is contrary to the overwhelming weight of the evidence and is not supported by sufficient evidence. Finding no reversible error, we affirm.

*916 FACTS AND PROCEDURAL HISTORY
¶ 2. In 2006, M.G. lived with her father, Danny Gollott, her father's then-girlfriend, Michelle Surian[2], and her half-brother, Destin Gollott. M.G. knew Fountain because he was her cousin. He also worked with M.G.'s grandmother at a family business, and Fountain's mother, Iris, lived next to M.G.'s grandmother. Fountain bought M.G. presents, including a cell phone and an Ipod; he also occasionally gave her money. M.G. began to spend time with Fountain at his house, at the warehouse where he worked, and at Iris's house. M.G. stated that when she first began spending time with Fountain, she and Fountain ate pizza and watched television at Fountain's house.
¶ 3. M.G. testified that Fountain began sexually abusing her after she confided in him that her half-brother, Destin, had sexually assaulted her. M.G. was nine years old at the time. The sexual abuse by Fountain occurred at Fountain's house, his office at the warehouse, and at Iris's house. According to M.G., it was during the initial stages of abuse that Fountain told her about his sexual relations with his step-daughter, K.U. He also showed M.G. sexually explicit videos of K.U. in addition to various other nude photographs. M.G. testified that Fountain had sexual intercourse with her, that he had placed his mouth on her vagina, and that he had inserted his penis into her mouth. She also testified to the use of vibrators during the sexual abuse and to his use of condoms.
¶ 4. In early 2008, M.G. told Surian, her father's then-girlfriend, that Destin had sexually assaulted her. Surian then took M.G. to the emergency room. After the emergency-room visit, M.G. revealed to Surian that Fountain had been sexually assaulting her. M.G. was then removed from her home by the Department of Human Services (DHS).
¶ 5. In April 2008, a Jackson County grand jury indicted Fountain on four counts of sexual battery occurring from January 1, 2006, through January 18, 2008. Prior to trial, both the State and Fountain filed motions in limine. The State sought to exclude evidence of M.G.'s past allegations of sexual abuse by persons other than Fountain. The trial court excluded the evidence based on Fountain's failure to comply with the notice requirements in Mississippi Rule of Evidence 412(c). In his motion in limine, Fountain sought to exclude evidence of prior acts of a sexual nature with his step-daughter, K.U. The trial court denied Fountain's motion and permitted the evidence under Mississippi Rule of Evidence 404(b). A jury trial then began on May 25, 2010.
¶ 6. The jury heard the testimony of Terry Hines, an investigator with the Ocean Springs Police Department. He testified regarding the search of Fountain's residence. During the execution of the search warrant, police officers found vibrators and nude photos in a dresser where M.G. described they would be located. The officers also found condoms in Fountain's bathroom and night stand. Although no videos of K.U. were found, the closet shelf on which M.G. said they would be located appeared to have had items recently removed. Investigator Hines also described Fountain's nipple piercing, which M.G. had disclosed during her testimony.
¶ 7. The jury also heard the testimony of two nurses, Melanie Gaston and Edwina Roland, who had examined M.G. on separaterate. *917 occasions. Gaston, a nurse practitioner at Biloxi Regional Medical Center, examined M.G. on January 18, 2008. M.G. arrived at the hospital complaining of a headache, gastric burning, and leg pain. Gaston then performed a visual gynecological exam of M.G. based on her complaints of gastric burning. Gaston noted M.G.'s hymen was not intact, but there was no swelling, nor any bruising, tears, abscesses, or blisters. However, according to Gaston, this was not unusual "because the last [instance of sexual abuse] was two weeks [prior to the exam] or greater." Gaston was referring to the alleged abuse by Destin. Because of this testimony, the trial court allowed testimony about M.G.'s accusations against Destin.
¶ 8. Roland, a registered nurse at Keesler Medical Center, examined M.G. on January 28, 2008, per the request of DHS. Roland also found no evidence of trauma. However, M.G. did reveal to Roland that she was assaulted by Fountain and Destin. M.G. also told Roland that Fountain videotaped her using a vibrator on several occasions.
¶ 9. K.U. also testified during the trial. She testified that she began to live with Fountain after he and her mother had divorced. According to K.U., Fountain began sexually abusing her when she was in the fifth grade. She testified the inappropriate behavior began as playing, which led to touching and feeling, and eventually progressed to sex. In addition, K.U. testified she would occasionally see Fountain watching pornography and masturbating in the living room. When she walked in the living room on those occasions, Fountain did not stop what he was doing. She further acknowledged the abuse continued until she was in her twenties.
¶ 10. Fountain took the stand in his own defense. He denied M.G.'s allegation and also denied any sexual abuse of K.U. He said a sexual relationship with K.U. began after she had graduated high school. Fountain admitted he was alone with M.G. on several occasions, bought her some gifts, and gave her money. He further testified that M.G. knew where the vibrators and nude photographs were located in his house because she liked to look in drawers. Fountain did not remember M.G. telling him about the alleged sexual assault by Destin, and he claimed that M.G. fabricated stories.
¶ 11. The jury convicted Fountain of four counts of sexual battery. He was sentenced to thirty years for each count with the sentences to run concurrently with one another, all in the custody of the MDOC without eligibility for parole or probation. In addition, he was ordered to pay fines in the amount of $10,000 for each count. Fountain now appeals.

DISCUSSION
¶ 12. On appeal, Fountain argues: (1) the trial court abused its discretion by allowing K.U.'s testimony under the exceptions in Mississippi Rule of Evidence 404(b); (2) the trial court abused its discretion by excluding evidence of M.G.'s false allegation against her step-brother, Chad; (3) there is plain error in two of the jury instructions given by the trial court; and (4) the verdict is contrary to the overwhelming weight of the evidence and is not supported by sufficient evidence.

I. Admission of Prior Alleged Acts of Misconduct
¶ 13. "A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the [appellate court] will not reverse this ruling." Gore v. State, 37 So.3d 1178, 1183 (¶ 13) (Miss. *918 2010) (quoting Price v. State, 898 So.2d 641, 653 (¶ 29) (Miss.2005)).
¶ 14. Fountain asserts the trial court abused its discretion by admitting the testimony of K.U. in which she spoke about Fountain's prior sexual abuse. He makes the following arguments regarding the introduction of this evidence: (1) the Mississippi Supreme Court's holding in Derouen v. State, 994 So.2d 748 (Miss.2008), does not render this type of evidence per se admissible; (2) the prejudicial effect of the testimony greatly outweighs any probative value; (3) the limiting jury instruction did not eliminate the prejudice inherent in the testimony; (4) the allegations were too remote in time and dissimilar in detail to be relevant to the current charge; and (5) the testimony violated his right to a fair trial.
¶ 15. Prior to trial, Fountain filed a motion in limine seeking to prohibit the State from introducing evidence of his prior sexual acts with K.U. In K.U.'s testimony, she alleged Fountain began to sexually abuse her when she was in the fifth grade, and the sexual acts continued until adulthood, at which point the relationship became consensual. The State sought to introduce the evidence under the standard announced in Derouen. Fountain claimed M.G.'s accusations have no connection to K.U.'s testimony, and K.U.'s testimony would only serve to show he acted in conformity with his prior acts. He further argued the probative value of the testimony is substantially outweighed by the danger of unfair prejudice. The trial court denied Fountain's motion in limine. The trial court found K.U.'s testimony was relevant to the current case and its probative value was not substantially outweighed by the danger of unfair prejudice.

A. Derouen Standard
¶ 16. In Derouen, the Mississippi Supreme Court held that evidence of a sexual offense other than the one charged, involving a victim other than the victim of the charged offense, "if properly admitted under Rule 404(b), filtered through Rule 403, and accompanied by an appropriately-drafted limiting or cautionary instruction to the jury, should not be considered per se error." Derouen, 994 So.2d at 756 (¶ 20). Derouen overruled the holding in Mitchell v. State, 539 So.2d 1366 (Miss. 1989), later reaffirmed in Lambert v. State, 724 So.2d 392 (Miss.1998), which had found the admission of this type of evidence was per se reversible error. Derouen, 994 So.2d at 754 (¶ 17) (citing Lambert, 724 So.2d at 394 (¶ 7)). In overruling those cases, the supreme court stated: "[W]e find that our holding in Mitchell, reaffirmed in Lambert, does irreversible harm to the most innocent and defenseless in societyour young children." Id. at 755-56 (¶ 18). The supreme court further acknowledged the standard established in those cases had "eliminat[ed] the balancing test required under Rule 403 ... [which] is totally contrary to our rules of evidence and well-established case law." Id. at 756 (¶ 18) (citations omitted).
¶ 17. Fountain argues that although the holding in Derouen removed the per-se-inadmissibility standard regarding evidence of a separate sexual offense involving a different victim, Derouen does not render that type of evidence per se admissible. We agree with Fountain that it is clear Derouen did not make this type of evidence per se admissible. The Derouen standard states the evidence is only admissible "if properly admitted under Rule 404(b), filtered through Rule 403, and accompanied by an appropriately-drafted limiting or cautionary instruction to the jury." Id. at (¶ 20). In the instant case, the trial court followed the standard announced *919 in Derouen and properly admitted the evidence.
¶ 18. The evidence was properly admitted under Rule 404(b). Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
In deciding to admit K.U.'s testimony, the trial judge stated:
The nature of the sex abuse, sexual activity testified to by [K.U.] is similar in nature as to the use of pornography or the existence of pornography, and [Fountain's] interest in pornography, [and it is] consistent [with] the use of condoms in statements by the victim. I believe it's relevant to the issues of the licentious nature of [Fountain] in the charges lodged here. I think it would be relevant to [the] opportunity of [Fountain] to engage in such conduct. It would be corroborative of the statements and some of the testimony of the victim here, as I've been informed of.
Under Rule 404(b), K.U.'s testimony could not be presented to show "conformity therewith." However, the testimony could be used to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." M.R.E. 404(b). There are several similarities between the two allegations of abuse: both victims were the same age when the abuse took place; Fountain gave both of the victims gifts and money; and several of the sexual acts were the same. The abuse of M.G. also began around the same time K.U. left for college. Furthermore, Fountain used his abuse of K.U. to groom M.G. as part of his general preparation or plan. As the trial judge noted, the licentious nature of the allegations show a motive to engage in the type of activity alleged. Thus, this evidence is permitted under Rule 404(b).
¶ 19. Derouen also requires that the trial court perform a Rule 403 balancing test before admitting the evidence. Rule 403 states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." In this case, the trial court conducted the requisite balancing test and determined the testimony should be allowed.
¶ 20. In Derouen, when discussing the admissibility of evidence of this nature, the supreme court cites the dissent in Lambert in its entirety. In arguing its probative value outweighs the danger of unfair prejudice, the dissent in Lambert stated the following:
Sex crimes against children are furtive, secret events usually lacking evidence other than the conflicting testimony of the defendant and the victim. The only viable proof of motive, intent, plan, knowledge, identity or absence of mistake or accident may be the pattern of abuse suffered by others at the hands of the defendant.
Lambert, 724 So.2d at 395 (¶ 14) (Mills, J., dissenting, joined by Roberts and Smith, JJ.). Thus, the necessity of this type of evidence in cases involving sex crimes against children establishes their probative value. In most instances, as in the case at hand, evidence of a sexual offense other than the one charged, by a victim other than the victim of the charged offense, is the only evidence to show "proof of motive, *920 opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." M.R.E. 404(b). In this case, M.G. testified that the first time Fountain had sexual intercourse with her, Fountain told M.G. he had done the same thing to K.U. when she was nine. He also showed M.G. several explicit videos of K.U. This established his plan or preparation in using his abuse of K.U. to further his abuse of others. Furthermore, his prior actions show a motive to engage in the type of act alleged. These facts could not be established without K.U.'s testimony. Thus, the probative value of the evidence outweighs any prejudicial effect the evidence may possess.
¶ 21. Finally, the trial court, after deciding to admit the testimony, issued an appropriately drafted limiting or cautionary instruction to the jury. The trial court issued the following jury instruction:
The court instructs the Jury that the testimony of other acts as to a child which is not the subject of the Indictment being charged in this case is not evidence that the Defendant actually committed the crime charged herein or that the Defendant has a certain character and he acted in conformity therewith. Rather, the evidence, if proven beyond a reasonable doubt, may be considered, if you so determine, as to the Defendant's motive, opportunity, intent, preparation[,] and/or plan to commit the act for which he stands charged.
Fountain argues that in cases involving evidence of a separate bad act of a sexual nature against a different child, even a properly drawn limiting instruction cannot be followed by jurors. This argument is flawed. Under Fountain's argument, no limiting instruction would ever suffice in cases involving evidence of prior sexual acts against a victim other than the one bringing the current charges. This is clearly untrue. Otherwise, the supreme court in Derouen would not have made the limiting jury instruction a requirement in admitting this type of evidence. Thus, we find the trial court issued the type of appropriate limiting instruction intended by Derouen. This issue is without merit.

B. Relevance of Prior Acts
¶ 22. Fountain next argues the allegations in K.U.'s testimony were too remote in time to be relevant to the current case. The abuse alleged by K.U. occurred between sixteen and seventeen years prior to the trial in the instant case. In Gore v. State, 37 So.3d 1178 (Miss.2010), the supreme court allowed evidence of the defendant's prior sexual abuse of a different victim that occurred seven years before the abuse of the victim in the case. The Gore court cited the following cases from various jurisdictions: United States v. Hadley, 918 F.2d 848 (9th Cir.1990) (admitted evidence of other crimes occurring up to fifteen years prior to the crime for which the defendant was charged); Ex parte Register, 680 So.2d 225 (Ala. 1994) (allowed testimony of defendant's daughter regarding improper conduct that occurred seven to nine years previously); State v. Jackson, 625 So.2d 146 (La.1993) (permitted evidence of other crimes that occurred twenty-four years previously); State v. Driggers, 554 So.2d 720 (La.Ct.App.1989) (allowed admission of evidence of other acts that had occurred seven to twenty-six years previously). In Driggers, the Louisiana Court of Appeals reasoned that "even though the other[-]crimes evidence may appear to be remote in time in some instances, the incidents are all within the same time period in terms of the victims' lives because all of the victims were essentially pre-pubescent." Gore, 37 So.3d at 1186 (¶ 19) (quoting Driggers, 554 So.2d at 727). Based on the age of the M.G. and K.U. when the abuse occurred, the timing *921 of the abuse of M.G. in relation to K.U. leaving for college, and the overwhelming amount of case law, we find K.U.'s testimony was not too remote in time to be relevant.
¶ 23. Fountain further argues the assertions in K.U.'s testimony were too dissimilar to M.G.'s case to permit admission. However, several facts within the testimony of each victim are similar in nature. There are also consistencies in the manner in which the abuse occurred. In both instances of abuse, the victims were approximately the same age; in both cases Fountain bought the victims presents and gave them money; and in both cases Fountain used pornography. Also, as discussed above, Fountain used his prior abuse of K.U. to aid in his abuse of M.G. Small variations in the type of abuse, such as using a vibrator in one instance and not in the other, will not make the two cases too dissimilar to be relevant. Accordingly, we find K.U.'s testimony relevant to the current charge.

C. Fair Trial
¶ 24. In Fountain's final argument regarding K.U.'s testimony, he claims the testimony violated his right to a fair trial. First, Fountain discusses the emotional impact of her testimony. He asserts the testimony about her dependence on Fountain and her emotional reaction when testifying about the abuse in support of this argument. Next, he argues K.U.'s testimony regarding his masturbation and use of pornography was irrelevant and inflamed the jury. Finally, he argues K.U.'s testimony was the most compelling evidence against him, and the State used it as a key piece of evidence of his guilt.
¶ 25. To begin, Fountain cites no legal authority in his argument relating to his right to a fair trial. "Failure to cite relevant authority obviates the appellate court's obligation to review such issues." Simmons v. State, 805 So.2d 452, 487 (¶ 90) (Miss.2001) (citing Williams v. State, 708 So.2d 1358, 1362-63 (Miss.1998)). Furthermore, we have already addressed the relevance and admissibility of the testimony. The testimony was properly admitted and did not violate Fountain's right to a fair trial. This issue is without merit.

II. Exclusion of False Allegations
¶ 26. Prior to trial, the State filed a motion in limine seeking to exclude the introduction of evidence regarding M.G.'s past allegations of sexual assault against persons other than Fountain. M.G. previously reported that her half-brother, Destin Gollott, had raped her and that her step-brother, Chad Gollott, had assaulted her. Fountain sought to introduce this evidence under Mississippi Rule of Evidence 412(b)(2)(c) as a false allegation by M.G. of a past sexual offense. The State moved to exclude the evidence under Rule 412(c). Rule 412(c)(1) requires the party seeking to admit such evidence to file a written motion no later than fifteen days before trial, unless the "evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence[.]"
¶ 27. During discovery, the State provided Fountain with information regarding M.G.'s prior accusations. However, Fountain argued the evidence he sought to introduce was newly discovered because he did not receive Chad's videotaped denial of the accusation until one day before trial and, therefore, he was unable to meet the fifteen-day notice requirement. Although Fountain argued the false allegations made by M.G. were newly discovered evidence, the trial court held the evidence was not newly discovered. The trial court stated: "It is conceded that the fact of this allegation was previously disclosed in discovery, *922 and the fact that the alleged perpetrator denied the same adds little to the argument in favor of its admission." The trial court found that Fountain failed to comply with the requirements of Rule 412(c). Therefore, the trial court granted the State's motion in limine.
¶ 28. During the trial, M.G.'s accusations against Destin were introduced when the evidence became relevant during the testimony of medical personnel. Thus, on appeal, Fountain only argues the trial court erred by excluding evidence of M.G.'s supposedly false allegation against Chad. Citing Williams v. State, 54 So.3d 212 (Miss.2011), Fountain argues the exclusion of evidence tending to support his theory of defense is too harsh a sanction for discovery violations, without the trial court finding he failed to disclose the evidence with the intent to gain a tactical advantage. However, "[t]he admission or exclusion of evidence constitutes reversible error only where a party can show prejudice or harm." Id. at 216 (¶ 14) (citing Ross v. State, 954 So.2d 968, 1001 (Miss. 2007)).
¶ 29. We have previously upheld the exclusion of testimony based on Rule 412 violations of the same nature as is present in this case. In Lofton v. State, 818 So.2d 1229, 1233 (¶ 14) (Miss.Ct.App.2002), the defendant, Matthew Lofton, sought to introduce evidence under Rule 412(b)(2)(C), that the victim, M.M., had previously accused her father of fondling her, an allegation the victim later told the grand jury was untrue. M.M. later explained the reason she had denied the allegation and confirmed the allegations as true. Id. The trial court excluded the evidence because Lofton failed to comply with the fifteen-day notice requirement in Rule 412(c). Id. at 1233 (¶ 15). On appeal, this Court affirmed the exclusion of the evidence finding the trial court's exclusion of the evidence "could not have affected the judgment and therefore is not reversible error." Id. at 1235 (¶ 22) (citation omitted).
¶ 30. In Levy v. State, 724 So.2d 405, 408 (¶ 18) (Miss.Ct.App.1998), the defendant sought to introduce evidence of the victim's past sexual behavior. The trial court excluded the evidence. Id. On appeal, this Court held the trial court's exclusion of the evidence was not reversible error because of the defendant's failure to give timely notice or qualify for a procedural exception under Rule 412(c). Id. at 409 (¶ 19).
¶ 31. Fountain admittedly did not comply with the fifteen-day notice requirement of Rule 412(c). He also does not fall within one of the procedural exceptions. Although he argues the videotape of Chad denying the allegations is newly discovered evidence, we find the evidence of M.G.'s allegation against Chad was not newly discovered evidence. Furthermore, the tape adds little, if any, value to Fountain's defense. The accusations against Chad were not the only source of evidence to support Fountain's theory of defense. M.G.'s allegations against Destin served the same purpose, and those allegations were introduced during the trial. Thus, the exclusion of Chad's testimony did not prejudice or harm Fountain's theory of defense. The jury returned a guilty verdict despite hearing other evidence of M.G.'s prior allegations of abuse.
¶ 32. We find the exclusion of this evidence did not prejudice Fountain or affect the judgment rendered in this case; therefore, it is not reversible error. Accordingly, this issue is without merit.

III. Jury Instructions
¶ 33. Fountain argues the trial court committed plain error in two of the *923 jury instructions given. When considering a challenge to a jury instruction on appeal, "this Court does not review jury instructions in isolation; instead, jury instructions are reviewed as a whole." Morgan v. State, 995 So.2d 812, 816 (¶ 12) (Miss.Ct. App.2008) (citations omitted). "Accordingly, this Court will not find reversible error where, when read as a whole, the jury instructions `fairly announce the law of the case and create no injustice.'" Id. (quoting Foley v. State, 914 So.2d 677, 686 (¶ 14) (Miss.2005)).
¶ 34. Fountain did not object to either instruction during the trial. However, he argues the instruction should be reviewed under the plain-error doctrine. Appellate courts will "only address[] issues on plain[-]error review when the error of the trial court has impacted upon a fundamental right of the defendant." Sanders v. State, 678 So.2d 663, 670 (Miss.1996). Thus, the plain-error doctrine's two-part test requires: "(i) an error at the trial level[,] and (ii) such an error resulted in a manifest miscarriage of justice." Stephens v. State, 911 So.2d 424, 432 (¶ 19) (Miss.2005) (citation omitted).

A. Response to Jurors' Question
¶ 35. Fountain argues the trial court erred in its response to a question by the jury. During deliberations the jury sent the trial judge a note that said: "Can we get a copy of testimony of [M.G.]?" The trial judge responded: "It is not possible to provide the jury a transcript of any testimony. Please rely upon the collective recollection of the jury and continue your deliberations." Fountain claims the trial court's response to the jury question "directed the individual jurors to acquiesce to the collective will of the other jurors." We find the trial court's instruction did not affect Fountain's fundamental rights and, thus, does not constitute a manifest miscarriage of justice. The importance of the response was to inform the jury it would not be provided with a transcript of M.G.'s testimony. Fountain provides no authority to support his interpretation of the trial court's instruction of the jury. Furthermore, nothing in the instruction indicates the trial court directed the individual jurors to submit to the will of the jury as a whole. The trial court's response to the jury question does not constitute plain error, and this issue is without merit.

B. Jury Instruction
¶ 36. Fountain also argues the trial court improperly granted jury instruction 12. The jury instruction read as follows:
The Court instructs the Jury that under the law of the State of Mississippi a child under the age of fourteen (14) cannot give consent to the crime of Sexual Battery. Therefore[,] the child's consent or lack of consent is not a material issue to your decision on Defendant's guilt or innocence.
Fountain argues jury instruction 12 presumed an act of sexual battery had occurred by introducing the defense of consent, a defense Fountain did not present at trial. We find the jury instruction was not plain error. The instruction was reasonable in light of the evidence in this case. Based on the evidence, the jury could have assumed that there was no evidence presented to suggest M.G. attempted to stop the sexual assault. There was, however, evidence that M.G. had conformed to some of Fountains suggestions, such as shaving her pubic hair. In addition, K.U.'s testimony regarding the continuation of her relationship with Fountain into adulthood could have indicated some level of consent was involved in the sexual abuse. Jury instruction 12 simply instructed the jury that even if it believed M.G. consented to *924 the assault, she was legally unable to do so. The jury instruction was not plain error. Accordingly, we find this issue to be without merit.

IV. Motions for a Directed Verdict, JNOV, and New Trial
¶ 37. In his final assignment of error, Fountain argues the trial court erred by denying his motions for a directed verdict, JNOV or, alternatively, a new trial. He argues his motions should have been granted because the verdict was contrary to the overwhelming weight of the evidence, and the evidence presented was insufficient to support the conviction.
¶ 38. Fountain was convicted of sexual battery under Mississippi Code Annotated section 97-3-95(1)(d) (Rev.2006), which states: "A person is guilty of sexual battery if he or she engages in sexual penetration with ... [a] child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child."

A. Motion for a New Trial
¶ 39. A motion for a new trial challenges the weight of the evidence. Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). "[W]e will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Id. (citation omitted). On appeal, "the evidence should be weighed in the light most favorable to the verdict." Id. (citation omitted). "When this Court analyzes a jury's verdict to determine whether it goes against the overwhelming weight of the evidence, we must keep in mind that the jury is the ultimate finder of fact." Reeves v. State, 825 So.2d 77, 80 (¶ 8) (Miss.Ct.App.2002).
¶ 40. In the instant case, the State provided ample evidence of sexual battery, and the jury's verdict does not present an "unconscionable injustice." The jury heard testimony from M.G. detailing her sexual abuse at the hands of Fountain, including penetration. The jury also heard the testimony of Investigator Hines, who stated that M.G. knew where certain items would be located in Fountain's home. Those items included vibrators and nude photographs. In addition, K.U. testified to her prior sexual abuse by Fountain, thus establishing a motive to commit the crime.
¶ 41. A jury is entitled to believe or disbelieve the testimony of any witness. Moore v. State, 969 So.2d 153, 156 (¶ 11) (Miss.Ct.App.2007). In this case, the jury choose to believe the testimony of M.G. and other evidence that supported her allegations. Furthermore, the jury was entitled to disbelieve Fountain's testimony in which he denied the allegations of both M.G. and K.U. We do not find the jury's decision was against the overwhelming weight of credible evidence, nor does it constitute an unconscionable injustice. This issue is without merit.

B. Motion for Directed Verdict or for a JNOV
¶ 42. A motion for a directed verdict or for a JNOV implicates the sufficiency of the evidence. Bush, 895 So.2d at 843 (¶ 16). In reviewing a motion for a directed verdict or for a JNOV, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
¶ 43. As discussed above, the State provided sufficient evidence to support the jury's verdict. Fountain argues *925 the evidence was insufficient because the State did not produce any DNA evidence to prove the abuse. In fact, the items from Fountain's house were tested, and no DNA evidence from M.G. was present. While DNA evidence certainly supports a conviction, it is not absolutely necessary to support a guilty verdict. Because of the inherent secrecy involved in child-abuse cases, there is often little evidence other than the child's testimony to support conviction. To require DNA evidence in these cases would virtually abolish crimes involving child abuse. Furthermore, M.G.'s testimony that condoms were used explains the lack of DNA on items found within Fountain's home. For the foregoing reasons, we find this issue is without merit.
¶ 44. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTION OF FOUR COUNTS OF SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS FOR EACH COUNT WITH THE SENTENCES TO RUN CONCURRENTLY ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION AND TO PAY A $10,000 FINE FOR EACH COUNT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.
LEE, C.J., GRIFFIS, P.J., BARNES, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
NOTES
[1]  Actual names are not revealed in sexual-abuse cases.
[2]  We note that Surian later married Gollott and changed her last name; however, for the purposes of this opinion, we refer to her as Surian.


774 F.2d 1164
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.United States of America, Plaintiff-Appellee,v.David Delp, Defendant-Appellant.
No. 85-5125
United States Court of Appeals, Sixth Circuit.
9/23/85

M.D.Tenn.
AFFIRMED
BEFORE:  ENGEL and MILBURN, Circuit Judges, WEICK, Senior Circuit Judge.

1
This cause having come on to be heard upon the record, the briefs and the oral argument of the parties, and upon due consideration thereof.

2
The Court finds that no prejudicial error intervened in the judgment and proceedings in the district court, and it is therefore ORDERED that said judgment be and it hereby is affirmed.


487 A.2d 267 (1985)
Marcus A. TOMPKINS
v.
MAINE UNEMPLOYMENT INSURANCE COMMISSION, et al.
Supreme Judicial Court of Maine.
Argued January 10, 1985.
Decided February 8, 1985.
*268 Richard L. Rhoda (orally), Houlton, for plaintiff.
Barnes & Sylvester, Torrey A. Sylvester, Houlton, for Reid's Confectionery.
Leanne Robbin, Asst. Atty. Gen. (orally), Augusta, for Maine Unemployment Ins. Commission.
Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN and SCOLNIK, JJ.
WATHEN, Justice.
Marcus A. Tompkins, the plaintiff-employee, appeals from a judgment of the Superior Court (Aroostook County) affirming a decision of the Employment Security Commission (the "Commission").[1] The Commission decided that plaintiff was discharged from his employment with Reid's Confectionary Company ("Reid's") for misconduct connected with work within the meaning of 26 M.R.S.A. §§ 1043 (1974) and 1193(2) (Supp.1984-1985). An employee who has been discharged for misconduct connected with work is temporarily disqualified from receiving unemployment benefits. See 26 M.R.S.A. § 1193(2). Plaintiff contends that because he was a chronic alcoholic, his drinking was involuntary and therefore did not constitute misconduct connected with work. On the facts of this case, the finding of misconduct is not in error and we deny the appeal.

I.
Plaintiff worked as a salesman and delivery truck driver for Reid's from 1947-1978. Plaintiff presented evidence that he was a chronic alcoholic who often drank during the work day. Robert Nagle acquired Reid's in May 1977. Mr. Nagle testified that when he bought the company he was unaware that plaintiff had a drinking problem. Mr. Nagle said that he first found out about plaintiff's drinking when plaintiff returned to work drunk on May 25, 1977. The next day, Mr. Nagle gave a written warning to plaintiff that a repeat violation would bring further disciplinary action. In March 1978, Mr. Nagle issued another written warning to plaintiff stating that Mr. Nagle had seen plaintiff drunk on the job and had received complaints from customers about plaintiff's behavior. Mr. Nagle warned that further drinking on the job would be cause for immediate dismissal.
In September and October of 1978, plaintiff was involved in an accident while on the job, made misdeliveries, and offended some of Reid's customers. As a result of those incidents, on November 8, 1978, Mr. *269 Nagle fired plaintiff. Mr. Nagle testified that he feared for the safety of the company's equipment and for the lives of those on the road if plaintiff continued to work for Reid's. Plaintiff testified that after he was fired, he successfully took part in a 21 day treatment program for alcoholics.
On February 2, 1979, the Appeal Tribunal of the Commission affirmed the deputy's decision disqualifying plaintiff from receiving unemployment benefits. The Commission affirmed the decision of the Appeal Tribunal. Plaintiff then appealed to the Superior Court which remanded the case to the Commission for findings in conformance with the rule in Moore v. Department of Manpower Affairs, 388 A.2d 516, 519, 519 (Me.1978), requiring a determination: 1) whether the employer has a reasonable standard for discharge, and 2) whether the employee acted unreasonably in failing to meet that standard.
After a hearing, the Commission again affirmed the decision of the Appeal Tribunal. The Commission found that Reid's policy and actions were reasonable, and that plaintiff's conduct was unreasonable. Plaintiff again appealed and the Superior Court dismissed the appeal and affirmed the Commission's decision.

II.
Plaintiff contends that the Superior Court erred as a matter of law in affirming the Commission's decision that alcoholism is not a defense to a charge of misconduct for the purpose of determining eligibility for unemployment benefits. Rather than examine the Superior Court's decision, where as here the Superior Court ruled solely on the basis of the administrative body's record, the Law Court will review the record directly as it developed before the Commission. See Nancy W. Bayley, Inc. v. Maine Employment Security Commission, 472 A.2d 1374, 1377 (Me.1984). We shall determine whether "the Commission abused its discretion, committed an error of law, or made findings not supported by substantial evidence in the record." (citations omitted). Keith v. Saco River Corridor Commission, 464 A.2d 150, 153 (Me.1983).
We begin as we must by considering the relevant statutory provisions. Under 26 M.R.S.A. § 1193(2), an individual will be temporarily disqualified from benefits if the Commission finds that "he has been discharged for misconduct connected with his work." "Misconduct" is defined by 26 M.R.S.A. § 1043(23):
"Misconduct" means conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has a right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer.
In Moore v. Maine Department of Manpower Affairs, we said that in applying sections 1043(23) and 1193(2), the Commission must determine whether the employee's conduct is "upon an objective standard, unreasonable under all the circumstances of the case." See 388 A.2d at 519. The Court in Sheink v. Department of Manpower Affairs, 423 A.2d 519, 522 (Me.1980), elaborated on Moore's interpretation of "misconduct": "It is not an essential of misconduct, as defined in the statute, that the employee have actual subjective intent to disregard the employer's interests. It is sufficient ... that the employee's conduct... was so violative of employer interests" that the conduct amounts to an intentional disregard of those interests.
The record fully supports the Commission's conclusion that plaintiff's continued drinking on the job constituted a serious and substantial disregard of Reid's interests. The combination of plaintiff's drinking and the requirement that he drive and deal with customers threatened substantial *270 losses to the Company. Not only had plaintiff damaged a Reid's truck in an accident (apparently occurring after plaintiff had been drinking), he also made mis-deliveries and offended some of Reid's customers.
Plaintiff does not dispute that from Reid's perspective, the Company acted reasonably in firing him. Rather, plaintiff argues that his failure to conform to Reid's rules was not voluntary, and therefore his acts did not constitute misconduct. Plaintiff relies on his own testimony and that of his treating physician to attempt to prove that his drinking was involuntary.
Ultimately, the determination whether a person's drinking is voluntary must turn on the particular facts of each case. Just because plaintiff is an alcoholic, the conclusion does not necessarily follow that he was compelled to drink on the job. Contrary to plaintiff's assertions, ample evidence in the record supports a finding that plaintiff's drinking on the job was not involuntary. Plaintiff testified that if he did not have a drink during the day, he became "nervous" and "up tight" and "just didn't feel right." He acknowledged the fact that he had promised his employer that he would not drink, but stated that he continued to drink with his noon meal because "I didn't think it was bothering me any." It is significant to note that plaintiff did not testify that he was unable to overcome his discomfort, nor did he or his doctor testify that he had to drink on the job, as opposed to drinking at a time when it would not affect his work. Furthermore, before plaintiff was fired, his step-daughter advised that he go to a detoxification program during a vacation from work, but plaintiff declined to do so. Thus, although plaintiff testified that he did not believe that his drinking was harming him, he had notice from both his family and his employer that he had a drinking problem. He also was aware of the existence of treatment programs.
On the record before us, the Commission could rationally conclude that plaintiff's failure to cease drinking on the job and his failure to seek treatment for alcoholism was the equivalent of deliberate misconduct within section 1043(23). Accordingly, we find no error.
The entry is:
Judgment affirmed.
All concurring.
NOTES
[1]  The Employment Security Commission is now entitled the Unemployment Insurance Commission. P.L.1983, c. 351, § 41.


                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                      No. 17-1226

MUYAPENDE WILLY KANKU,

                    Petitioner,

             v.

JEFFERSON B. SESSIONS III, Attorney General,

                    Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Submitted: May 10, 2018                                           Decided: May 18, 2018

Before NIEMEYER, WYNN, and HARRIS, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Muyapende Willy Kanku, Petitioner Pro Se. Aric Allan Anderson, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Muyapende Willy Kanku, a native and citizen of the Democratic Republic of the

Congo, petitions for review of an order of the Board of Immigration Appeals (Board)

dismissing his appeal from the Immigration Judge’s denial of his application for adjustment

of status. After thoroughly reviewing the record and Kanku’s claims, we conclude that

substantial evidence supports the Board’s decision. See Djadjou v. Holder, 662 F.3d 265,

273 (4th Cir. 2011) (noting that the adverse credibility finding is reviewed for substantial

evidence). We also conclude that Kanku failed to show that he was denied due process.

See Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir. 2008) (stating elements of due process

claim in removal proceeding). Accordingly, we deny the petition for review. We dispense

with oral argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

                                                                      PETITION DENIED

                                             2


252 B.R. 302 (2000)
In re Robert F. SIMONE, Debtor.
Robert F. Simone, Plaintiff,
v.
United States of America, Internal Revenue Service, Defendant.
Bankruptcy No. 97-13645SR. Adversary No. 97-0984.
United States Bankruptcy Court, E.D. Pennsylvania.
April 20, 2000.
*303 Steven B. Mirow, Philadelphia, PA, for Robert F. Simone.
Mitchell W. Miller, Philadelphia, PA, trustee.

MEMORANDUM OPINION
JOSEPH L. COSETTI, Bankruptcy Judge.
The matter before the court is the Motion for Summary Judgment filed by Defendant United States of America, Internal Revenue Service seeking a determination that the tax liability owed by Debtor/Plaintiff Robert F. Simone is nondischargeable. For the reasons expressed below, the motion for summary judgment shall be granted in part and denied in part.
*304 Facts
Debtor/Plaintiff Robert F. Simone ("Simone") filed his voluntary Chapter 7 petition on March 27, 1997. On September 10, 1997, Simone filed the above captioned complaint seeking a determination that all of his taxes obligations were discharged. Prior to the filing of his petition, Simone was indicted on approximately eleven charges of evasion of payment of income taxes and willful failure to pay income taxes and one count of conspiracy to defraud the Internal Revenue Service. The charges pertained to the tax years 1984 through 1989.
Simone pled guilty to two counts of tax evasion pertaining to the tax years 1985 and 1989. For 1985, the amount of taxes owed was $24,507 and in 1989 the amount was $29,000. The parties stipulated in the Plea Agreement that the tax loss for the other tax years, 1984, 1986-1988, should be considered for purposes of relevant conduct and that the amounts Simone owed were as follows: 1984  $28,000; 1986  $44,927; 1987  $10,206; 1988  $23,500. The indictment did not allege that the tax returns filed were fraudulent. Guilty Plea Agreement, Exhibit 2 to Declaration of Angelo Frattarelli.
In the Plea and Sentence hearing, the Internal Revenue Service ("IRS") provided a factual basis for the plea agreement. During the years 1984 though 1989 Simone was a lawyer operating his practice as a sole proprietor. The IRS stated that Simone turned monies that he had received for legal fees over to his long time accountant, Irving Reiss ("Reiss"), rather than deposit them into his own personal or business account. Simone would then instruct Reiss to pay certain expenses from those funds. The IRS contended that he used this method to shield funds from the IRS while making discretionary payments to others. During the tax year 1985, Simone gave Reiss approximately $66,666 to deposit. Reiss deposited the money into an account entitled Business Loans, Inc. Simone had no relationship to the entity Business Loans, Inc.
The IRS stated that from the $66,666, Simone authorized Reiss in January to pay the IRS $10,000 for estimated 1984 taxes. The IRS also stated that payments of approximately $14,666 were made to assist with debts incurred by Simone's son in a new business that he partially owned. In addition, Simone instructed that $44,500 be wired to a real estate agent in St. Bart's in the West Indies for partial payment of a vacation condominium. After those payments were made, in August of 1985, Simone received a loan in the amount of $45,000 which was used to complete the purchase of the St. Bart's condominium. Repayment of the loan in 1985 totaled approximately $12,000.
Additional costs of $5,350 were spent on vacations in 1985 as well as a $5,000 payment made toward the purchase of a boat. Deposits of approximately $51,000 were made directly into his wife's checking account.
Regarding the tax year 1989, Simone again remitted funds to Reiss rather than deposit them in his own account. $65,000 was deposited into the Business Loans, Inc. account. Of this amount, $13,000 was used to pay state and local taxes, $31,000 was issued to Simone's son to assist him in business, and the remaining approximately $15,000 was the subject of dispute regarding purported payments to the IRS. Simone asserted that he authorized $15,000 be paid to the IRS as partial payment for his tax obligations. The IRS asserted that no such payment was ever negotiated by the IRS.
During 1989, Simone also deposited approximately $35,000 in his wife's checking account. Of those funds, approximately $10,000 was paid toward a loan for the purchase of a 30 foot boat and approximately $11,000 was paid on a lease of a Jaguar XJ6.
At the plea and sentence hearing, Simone stated that he did not know that the *305 accountant was placing the money in the account of Business Loans, Inc. and that he gave the money to Reiss, in part, to protect himself from overspending. Simone also argued that all of his earnings were accounted for and he did not conceal income regardless of where it was deposited. He further contended that he instructed Reiss to pay $15,000 to the IRS and that upon inquiry Reiss had told Simone that the payments had been made.
Having pled guilty to two counts of evasion, the other counts against Simone were dismissed. However, the amount of taxes due and owing for all relevant years, 1985-1989, was taken into consideration for purposes of sentencing. For that purpose, Simone and the IRS agreed that the total tax owed to the IRS was $160,140.
The Plea and Sentence Hearing took place in October of 1994. In March of 1997, Simone filed his voluntary petition. The case was a no asset case. Simone was granted his discharge in the ordinary course of the case. Thereafter, he sought a determination that his tax obligations were discharged.
The IRS filed a motion for summary judgment that the obligations should all be held nondischargeable.
Analysis
A motion for summary judgment should be granted if "the pleadings, depositions, answer to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." F.R.Civ.P. 56; F.R.Bankr.P. 7056.
Simone's complaint did not state the specific tax years for which it was seeking a finding of dischargeability. In its motion for summary judgment, the IRS argues that the tax liabilities for the years 1993 to present are excepted from discharge pursuant to 11 USC § 523(a)(1)(A) and the liabilities for the years 1984 through 1989 are excepted from discharge on the basis of collateral estoppel and pursuant to 11 USC § 523(a)(1)(C).
In his response Simone asserts that genuine issues of material fact exist; that 11 USC § 523(a)(1)(C) does not except the tax liabilities for 1984 though 1989; and that he is not collaterally estopped from discharging those tax debts over three years old.
11 USC § 523(a)(1)(C) provides, in relevant part:
(a) A discharge under section 727 . . . of this title does not discharge an individual debtor from any debt
(1) for a tax or a customs duty
(C) with respect to which the debtor made a fraudulent return or willfully attempted in any manner to evade or defeat such tax;
Simone did not fail to file his tax returns. Nor is there any allegation that the returns filed were fraudulent. Therefore, the first prong of the statute is not applicable here. The issue is whether the failure to pay the taxes was a willful attempt to evade or defeat such tax thereby falling within the second prong of statutory exception to discharge.
Several circuit courts of appeal have addressed the issue of 11 USC § 523(a)(1)(C). It has been held that mere nonpayment of taxes, with nothing more, is not a willful attempt to evade or defeat taxes and does not come within the statutory exception to discharge. In re Haas, 48 F.3d 1153, 1158 (11th Cir.1995).
The Court of Appeals for the Third Circuit has addressed this issue in In re Fegeley, 118 F.3d 979 (3d Cir.1997). Fegeley failed to file his tax returns for the years 1983, 1984 and 1985. He later filed them in 1987 after being contacted by the Criminal Investigation Division of the IRS. There was no allegation that the tax returns, upon filing, were fraudulent. In 1989, Fegeley pled guilty to one of three counts charged for willful failure to file his income tax.
*306 After filing bankruptcy in 1991, the IRS argued that the tax liabilities for 1983-85 were nondischargeable pursuant to 11 USC § 523(a)(1)(C). The sole issue before the circuit court of appeals was whether Fegeley "`willfully . . . attempted to evade or defeat' his taxes for the years 1983, 1984, and 1985 within the meaning of the second part of § 523(a)(1)(C)". 118 F.3d at 983.
While abiding by the limitation set out in Haas regarding mere nonpayment, the Court of Appeals for the Third Circuit also gave weight to the fact that the statute includes the phrase "in any manner". Therefore, the court stated that the nonpayment of taxes should be looked to as "relevant evidence which [we] should consider in the totality of conduct to determine whether or not the debtor willfully attempted to evade or defeat taxes." Id. citing Dalton v. I.R.S., 77 F.3d 1297, 1301 (10th Cir.1996).
The court set forth a two part analysis to determine the second prong of the statute. First, it looked to a conduct requirement and second to a mental state requirement in interpreting "willfully". The court found that Fegeley's intentional failure to file his tax returns combined with his failure to pay when he had the financial ability to do so showed that he willfully attempted to evade or defeat his taxes. This conduct fell within that contemplated by the exception to discharge provision.
Regarding the mental state requirement, the court adopted the civil willfulness' standard requiring a showing that the attempts by the debtor were voluntary, conscious and intentional. Id. at 984. That is, that the debtor had the duty, knew he had the duty and voluntarily and intentionally violated the duty. It was held that Fegeley had the duty to file his tax returns, knew he had the duty and voluntarily and intentionally violated it. In addition, the court considered the fact that Fegeley had the financial wherewithal to discharge the duty during the relevant time.
Simone argued that his situation was clearly distinguishable from that in Fegeley because he timely filed accurate tax returns and there was no concealment on his part. Simone urged this court to adopt an interpretation similar to that in In re Haas, 48 F.3d 1153 (11th Cir.1995) and In re Griffith, 174 F.3d 1222 (11th Cir.1999). In Haas, the debtor had filed timely accurate returns but had not paid the tax due. His income was used to pay personal and business debts. The Court of Appeals for the Eleventh Circuit held that the willful attempt to evade or defeat referred to the assessment of the tax as opposed to the payment. 48 F.3d at 1161. Similarly in Griffith, it was held that the exception to discharge applied to conduct in evading the assessment of a tax.
At the time of the filing of this summary judgment pleading and the hearing on this matter, Griffith was being reconsidered by an en banc panel of the 11th Circuit. Since that time, the court of appeals en banc has rendered its decision. In re Griffith, 206 F.3d 1389 (11th Cir.2000). The court has now interpreted the statute in a fashion similar to the other circuit courts that have addressed the issue. That is, the 11th circuit court has now determined that § 523(a)(1)(C) renders tax debt nondischargeable where the debtor engaged in affirmative acts to evade payment of taxes. Id. at 1395-96. It reaffirmed its primary holding of Haas (mere nonpayment of taxes without more does not constitute a willful attempt to evade or defeat) but found that the statute is applicable to situations of nonpayment where a willful attempt to evade or defeat has occurred. Id.
This recent holding does not bolster Simone's position that this court should look to the interpretation of the statute held by the Eleventh Circuit. In any event, this court is bound to follow the precedent established in this circuit in Fegeley.
Tax Years 1985 and 1989
For those years in which Simone pled guilty to evasion of payment, collateral *307 estoppel prevents Simone from contending nondischargeability. There is no factual dispute regarding the guilty plea for the tax years 1985 and 1989. The factual basis of this matter is clearly set forth in the transcript of the Plea and Sentencing hearing.
The admissions made by Simone in the Plea and Sentence hearing and the language used therein are a similar analysis as the determination of the discharge exception. The district judge asked Simone whether or not he disputed what the IRS had stated as making out a tax evasion violation:
THE COURT: I take it you do not dispute what [IRS] has said to the extent that, as far as Counts Two and Six are concerned, that what she said makes out a violation of 26 U.S.C. Section 7201 which contains three elements.
1. That you attempted to evade or defeat the payment of taxes.
2. That there was an additional tax due and owing.
And, 3. That you acted willfully. To the extent
THE DEFENDANT: Right. May I say  . . .
Government Exhibit 3, Plea and Sentence Transcript, p. 34.
Simone did not dispute the facts as presented by the IRS at the hearing although he took issue with the consequence or interpretation of some of them, thus admitting the conduct requirement. Furthermore, when factual findings are incorporated into consent decree, they satisfy the "actually litigated" element of issue preclusion where those facts are necessary to a judgment. In re Graham, 973 F.2d 1089 (3d Cir.1992).
Simone further admitted the elements necessary for the mental state requirement under Fegeley of the exception to discharge. Shortly after the above exchange, the court asked Simone if these things happened by accident and Simone responded:
THE DEFENDANT: They didn't happen by accident. I acted intentionally and
THE COURT: Consciously?
THE DEFENDANT: Consciously, yes, sir.
THE COURT: Okay.
THE DEFENDANT: I knew I owed the IRS money.
THE COURT: You knew it was owed, and you didn't pay.
THE DEFENDANT: And I didn't pay them all. I knew I owed other people money and I didn't pay them all.
Government Exhibit 3, Plea and Sentence Transcript, p. 35.
"Guilty pleas, like criminal convictions upon a trial, are governed under a higher standard of proof than is a dischargeability and, as a result, may be given preclusive effect in appropriate cases." In re Goff, 180 B.R. 193 (Bankr.W.D.Tenn. 1995). Summary judgment will be granted to the IRS regarding the tax liability for the years 1985 and 1989.
Tax Years 1984, 1986, 1987 and 1988
The preclusive effect of Simone's plea agreement is less clear for those years for which he was charged with tax evasion by the counts dismissed as part of the plea. Simone stipulated for the purposes of determining relevant conduct for the sentencing phase that he owed additional taxes in the amount of $106,633 (1984: $28,000; 1986: $44,927; 1987: $10,206; 1988: $23,500). For purposes of relevant conduct, the total taxes stipulated to was $160,140 which included the years for which he pled guilty. Simone's stipulation for purposes of relevant conduct, however, does not necessarily constitute an admission of the elements of an offense or, in this case, the necessary conduct for "willful attempt to evade or defeat".
The only facts presented at the plea and sentence hearing concerned specific events and conduct in the years for which Simone *308 pled guilty. Simone's admissions were as to those two years only. The only facts concerning years 1984, 1986, 1987 and 1988 were those concerning the above amounts due and that through these years Simone gave Reiss monies for deposit.
The IRS stated that through the years 1984 through 1989 Simone's only relationship with the entity Business Loans, Inc. was his relationship with Reiss. However, there is nothing specific regarding the remitted funds or deposits into the Business Loan, Inc. account for years other than 1985 and 1989. Nor is there is any information regarding whether Simone had surplus funds during those years to pay his taxes.
Beyond the general admissions of nonpayment there are no facts, stipulations or admissions on the record that address the issue of whether Simone's nonpayment of taxes was a "willful attempt to evade or defeat".
It may be possible for the court to presume that Simone, as a lawyer, knew he had a duty to pay his taxes in the specific years in question. However, without additional facts on the record, the court cannot presume that Simone voluntarily and intentionally violated that duty during those years. Having admitted to doing so in two of the years charged does not necessarily translate into a voluntary and intentional violation in the other years. Different facts may have existed in those years which led to or can explain the nonpayment. For example, Simone's financial wherewithal to pay the taxes during these years is unknown or whether he was making payments on what could be considered luxury items during this time.
Under Fegeley, nonpayment of taxes is to be considered in the totality of conduct. There is insufficient evidence on the record for these years that would establish either the conduct or the mental state requirement of Section 523(a)(1)(C) required by Fegeley. Issue preclusion is not applicable for these tax years because the facts necessary for a determination of Simone's conduct and mental state were not admitted or actually litigated. In re Graham, 973 F.2d at 1098 (issue preclusion did not apply where debtor's stipulation entered in the tax court prepetition established the validity of the deficiencies, but neither the existence of the deficiencies nor the underlaying fraud was admitted.) Accordingly, as to these specific taxable years, summary judgment shall not be granted.
Tax Years 1993 to 1997
The IRS asserted that for the years 1993 to the filing Simone's tax liabilities were nondischargeable pursuant to 11 USC § 523(a)(1)(A) which excepts from discharge any tax that falls within 11 USC § 507(a)(8). Pursuant to section 507(a)(8), taxes due within three years prior to the filing are nondischargeable. Simone's 1993 tax return, without any extensions, would have been due on April 15, 1994. Simone filed his petition of March 27, 1997. The tax liability for 1993 therefore falls within the prior three years of filing and therefore is nondischargeable.
Simone does not dispute the nondischargeability of taxes for these particular years. In his memorandum in support of his response to motion for summary judgment, Simone acknowledges and agrees that the taxes due for 1993 and subsequent years are not dischargeable.
Accordingly, summary judgment shall be granted in favor of the IRS for the tax years 1993 to 1997 and the tax liability for those years shall be held to be nondischargeable.
Conclusion
For the reasons stated above, summary judgment shall be granted in favor of the Internal Revenue Service as to the tax liability for the years 1985, 1989 and 1993 through 1997 and the liability shall be nondischargeable. Summary judgment shall be denied as to the liability for the years 1984, 1986, 1987, and 1988. An appropriate order shall be granted and a *309 separate pretrial order shall issue as to the remaining portion of the adversary.


701 F.Supp. 33 (1988)
STATE OF NEW YORK, Plaintiff,
v.
CITY OF JOHNSTOWN, N.Y., et al., Defendants.
STATE OF NEW YORK, Plaintiff,
v.
CITY OF GLOVERSVILLE, N.Y., et al., Defendants.
Nos. 87-CV-636, 87-CV-637.
United States District Court, N.D. New York.
December 13, 1988.
*34 Robert Abrams, Atty. Gen., State of N.Y., Dept. of Law, Albany, N.Y., for plaintiff; John J. Privitera, Asst. Atty. Gen., of counsel.
Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, Roseland, N.J., for defendants Milligan & Higgins, Corp.; Norman W. Spindel, of counsel.

MEMORANDUM-DECISION AND ORDER
CHOLAKIS, District Judge.
These are actions brought by the State of New York pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S. C. § 9601 et seq. (1982), as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.L. No. 99-499, 100 Stat. 1613 (1986), and New York's common law of nuisance and restitution. The State seeks to abate and remedy the release or threatened release of hazardous substances at two solid waste management facilities and recover response costs and damages for harm caused to natural resources. While both facilities are located in the Town of Johnstown, one is owned and operated by the City of Gloversville, and the other by the City of Johnstown. The State alleges that hazardous substances, as defined in 42 U.S.C. § 9601(14), are contaminating the sites, endangering nearby wells, waterways, and wildlife. The State has sued the cities of Gloversville and Johnstown, the respective owners and operators of the sites, as described in 42 U.S.C. §§ 9607(a)(1) and (2). In addition, the State has sued waste generators, as described in § 9607(a)(3), who include corporations involved in producing tannery wastes and/or finishing wastes and/or paint wastes. Defendant Milligan & Higgins, a division of Hudson Industries Corporation, is in the business of making glues from tannery wastes, and is alleged to have deposited hazardous substances at the Johnstown site until 1979 or 1980, and at the Gloversville site thereafter.
Since 1979 or 1980, the Johnstown site has been a sanitary landfill, in that it no longer accepts hazardous substances.[1] At *35 that time, the State apparently directed certain depositors to dispose of their wastes at one or the other of the two sites. Since defendant was alleged to be a depositor of hazardous substances, it was directed to dispose of these substances at the Gloversville site.[2] Pursuant to an August 13, 1986 agreement between the State and Gloversville (Exhibit D of plaintiff's motion papers), that site is to be closed by September 1, 1990, as a new solid waste management facility at a different site in Fulton County ("Mud Road facility") has received a permit from the New York State Department of Environmental Conservation ("DEC"). The agreement requires that the landfill be maintained pursuant to certain sections of 6 NYCRR Part 360. "[T]he purpose of [these regulations] ... shall be to regulate solid waste management facilities ... located partially or wholly within ... the State." 6 NYCRR § 360.1. The State, however, did not issue a permit to Gloversville to continue operations at the site, a requirement under 6 NYCRR § 360.2(b).
The State and Johnstown entered into an interim consent order filed with the Court on October 3, 1988 (Exhibit A of defendant's opposing papers), whereby Johnstown agreed to close that site by June 1, 1990, or within thirty days of the date the Mud Road facility may accept refuse, whichever is sooner. While Johnstown agreed to maintain the landfill pursuant to 6 NYCRR Part 360, the State likewise did not issue a permit for the site's continued operation. Both the Gloversville and Johnstown sites, then, have been operating "permitless" since the State first acted in this matter.
In both cases, defendant has counterclaimed against the State, claiming that the State violated its own regulations by failing to properly regulate the sites, as evidenced by the State's failure to require or issue permits for their continued operation. Defendant claims that the State "negligently, intentionally and knowingly" failed to properly regulate the landfills after it first became aware of the hazardous waste problems therein. Defendant makes the following three requests in its counterclaims: (1) indemnification or contribution from the State for any judgment that may be had against it, pursuant to CERCLA § 113(f)(1), 42 U.S.C. § 9613(f)(1); (2) state common law indemnification or contribution; and (3) an injunction against the State forcing it to comply with 6 NYCRR § 360.2(b) and issue valid permits for operation, remediation and closure of the sites. The State now moves the Court to dismiss defendant's counterclaims pursuant to Fed. R.Civ.P. 12(b)(1) or (6), arguing first, that it is not a "person" for indemnification or contribution purposes under 42 U.S.C. § 9613(f)(1), second, that it is immune from the common law contribution or indemnification action by the doctrine of sovereign immunity, and at any rate, its decisions with respect to the sites are "discretionary acts," and lastly, that the State cannot be forced to abide by its regulations.

I.

CONTRIBUTION/INDEMNIFICATION UNDER CERCLA
Section 9613(f)(1) of Title 42 of the United States Code provides "[a]ny person may seek contribution from any other person who is liable or potentially liable under section 107(a) [42 U.S.C. § 9607(a)], during or following any civil action under section 106 [42 U.S.C. § 9606] or under section 107(a)." In order for the State to be liable under § 9607(a), the State must be either
(1) the owner and operator of a vessel or a facility;
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of;
(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, *36 of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances; [or]
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance ...
Defendant claims that the State is a responsible party under § 9607(a)(3), arguing that the State "otherwise arranged for" disposal of hazardous substances, in that the State either permitted or directed waste to be placed in the facilities. To establish liability under § 9607(a)(3), it must be shown, inter alia, that the State owned or possessed the hazardous substances of which it arranged to dispose. C. Greene Equipment Corp. v. Electron Corp., 697 F.Supp. 983, 986 (N.D.Ill.1988); United States v. Ward, 618 F.Supp. 884, 893 (E.D. N.C.1985). Defendant cites United States v. A & F Materials Company, Inc., 582 F.Supp. 842, 845 (S.D.Ill.1984) as authority for its claim that the term "otherwise arranged for," broadly construed, would include the State. In A & F, the party who arranged for disposal of hazardous waste was also the generator of the hazardous waste. The Court held that
Given the scope of the language "otherwise arranged" in § 9607(a)(3), the relevant inquiry is who decided to place the waste into the hands of a particular facility that contains hazardous wastes. In this case, it was MDC who decided to place its hazardous waste into the hands of A & F Materials to be used and disposed of at A & F's Greenup site. The Court finds that it is precisely this decision that CERCLA was intended to regulate ...
Thus, liability for release is not endless; it ends with that party who both owned the hazardous waste and made the crucial decision how it would be disposed of or treated, and by whom.
A & F, 582 F.Supp. at 845. (Emphasis in the original).
Defendant emphasizes that it is the party who decides to transfer substances that should be liable. See United States v. Northeastern Pharmaceutical and Chemical Company, ("NEPACCO"), 810 F.2d 726, 743 (8th Cir.1986), cert. denied, ___ U.S. ___, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987). Defendant argues that the responsible party need not be the owner or possessor of the hazardous substances. United States v. Bliss, 667 F.Supp. 1298, 1306-7 (E.D.Mo.1987); United States v. Mottolo, 629 F.Supp. 56, 60 (D.N.H.1984). In all the cases cited by defendant, the responsible party was either an officer or plant supervisor of a waste-producing corporation or a hired third party who decided how to dispose of its own waste. NEPACCO, 810 F.2d at 742; Bliss, 667 F.Supp. at 1306-7; Mottolo, 629 F.Supp. at 60; Ward, 618 F.Supp. at 894. These parties were held to be individually liable for having arranged for the disposal of hazardous substances or wastes.
The above situations are much different from the one before the Court. The cases clearly show that there has to be some nexus between the allegedly responsible person and the owner of the hazardous substances before a party can be held liable under 42 U.S.C. § 9607(a)(3). See Edward Hines Lumber Company v. Vulcan Materials Company, 685 F.Supp. 651, 656 (N.D. Ill.1988); Jersey City Redevelopment Authority v. PPG Industries, 655 F.Supp. 1257, 1260 (D.N.J.1987); United States v. Conservation Chemical Company, 619 F.Supp. 162, 241 (W.D.Mo.1985); State of New York v. General Electric Company, 592 F.Supp. 291, 297 (N.D.N.Y.1984). There is no such nexus between the State and defendant here. The State was attempting to remediate the hazardous waste problems at both sites and cannot be considered in the class of liable parties along with Milligan & Higgins. The Court holds that the State of New York in this instance is not a person subject to the CERCLA contribution provision, 42 U.S.C. § 9613(f)(1). The State's motion to dismiss *37 defendant's first counterclaim is hereby granted.

II. COMMON LAW CONTRIBUTION/INDEMNIFICATION
It appears as though defendant's counterclaim is a "compulsory" or "defensive" counterclaim, as it arises out of the same transaction or occurrence as the underlying claim. Fed.R.Civ.P. 13(a). While the State argues that it is not subject to a counterclaim of any sort under the doctrine of sovereign immunity, compulsory counterclaims such as this one can be asserted against a sovereign. United States v. Nicolet, Inc., No. 85-3060, slip op. (E.D.Pa. December 31, 1986) [available on WESTLAW, 1986 WL 15017]; United States v. Mottolo, 605 F.Supp. 898, 910 (D.N.H.1985) ("Mottolo II"). In the present case, the State has brought the CERCLA action against defendant. While there is some dispute as to whether a State can be a third party defendant in a CERCLA action, United States v. Union Gas Company, 832 F.2d 1343, 1347 (3d Cir.1987), cert. granted sub nom. Pennsylvania v. Union Gas Company, ___ U.S. ___, 108 S.Ct. 1219, 99 L.Ed.2d 420 (1988) (the State can be a third party defendant), United States v. Freeman, 680 F.Supp. 73, 79 (W.D.N.Y.1988) (rejecting Union Gas), there is no dispute that the State waives its sovereign immunity with respect to compulsory counterclaims when it is the plaintiff in a CERCLA action.
While the State has waived its immunity from suit with respect to this counterclaim, the State does not waive any defenses it may raise against the counterclaim. The State argues that defendant's claim is improperly brought as a claim for contribution/indemnification. The Court agrees. It appears as though defendant has mislabeled its second counterclaim. "A claim for contribution exists only when two or more tort-feasors share in responsibility for an injury in violation of duties they respectively owed to the injured person." Smith v. Sapienza, 52 N.Y.2d 82, 87, 436 N.Y.S.2d 236, 238, 417 N.E.2d 530, 532 (1981). "If there is no duty as between the two to prevent injury to the injured victim, then there can be no right of indemnity by one from the other." Smith v. Hooker Chemical & Plastics Corp., 83 A.D.2d 199, 443 N.Y.S.2d 922, 924 (4th Dept.1981). The situation in which the State and defendant are joint tortfeasors is difficult to imagine, and the contribution/indemnification issue seems untenable. It is more likely that defendant is looking for a setoff or recoupment to be applied against any amount it may eventually have to pay the State.
While sovereign immunity may not preclude a compulsory counterclaim, it may bar the claim when the acts causing the claim are "discretionary" or "quasi-judicial" acts of the State. Tango by Tango v. Tulevich, 61 N.Y.2d 34, 40, 471 N.Y.S.2d 73, 76, 459 N.E.2d 182, 185 (1983); Arteaga v. State, 125 A.D.2d 916, 510 N.Y.S.2d 280, 281 (3d Dept.1986); Sweet v. State, 114 Misc.2d 269, 451 N.Y.S.2d 565, 568 (Ct.Cl. 1982). If it cannot be shown that the State owed a "special duty" to a claimant, that claimant cannot recover against the State for alleged negligent acts. Shinder v. State of New York, 62 N.Y.2d 945, 946, 479 N.Y.S.2d 189, 468 N.E.2d 27 (1984). While the State concedes that it owes a general duty to protect the public, it argues that it owes no such duty to defendant. Apparently, this duty, if it exists at all, is not to further the damage to the sites by not adequately supervising or requiring permits for their continued operation. At oral argument on this motion, defendants argued that the State was under a duty not to "lay a trap" for defendant whereby the State would encourage conduct around which it would later frame a lawsuit.
The State decided some time ago to allow the sites to continue operating as solid waste management facilities, but did not enforce the requirement that permits be obtained. It appears that the parties agreed that the cities would operate the sites in accord with 6 NYCRR Part 360.8, which is a requirement under the permit application procedures. 6 NYCRR § 360.3(b)(2). The question of why the State did not require permits in this case *38 appears to be one that questions the judgment or discretion of the DEC Commissioner. The Commissioner has the authority to modify regulations issued pursuant to Articles 27 and 71 of the N.Y. Environmental Conservation Law, and to take remedial measures as may be necessary. N.Y. Environmental Conservation Law § 71-2727(1) (McKinney Supp.1988). In this instance, the Commissioner chose not to enforce a regulation in an effort to take remedial measures at both sites.
When it appears as though the judgment of the agency is at issue, it is not the province of the Court to substitute its judgment for that of the agency. Flacke v. Onondaga Landfill Systems, Inc., 69 N.Y. 2d 355, 362, 514 N.Y.S.2d 689, 693, 507 N.E.2d 282, 286 (1987). Absent a special duty owed to defendant, no liability should be imposed upon the State for its alleged failure to enforce its regulations. See O'Connor v. City of New York, 58 N.Y.2d 184, 189, 460 N.Y.S.2d 485, 486, 447 N.E.2d 33, 34 (1983). It would appear that the decisions made concerning the sites required the exercise of judgment beyond that of a "ministerial application" of a regulation. Tango by Tango, 471 N.Y.S.2d at 77, 459 N.E.2d at 186.
Defendant relies quite heavily on Mottolo II as support for its contention that the State may not raise the defense of the "discretionary act" doctrine. However, Mottolo II does not address this issue. In Mottolo II, both the United States and the State of New Hampshire brought cost recovery actions under CERCLA. The Court allowed a counterclaim seeking recoupment against New Hampshire for additional costs expended by the State resulting from its alleged inadequate supervision of cleanup operations. Mottolo II, 605 F.Supp. at 910. The Court refused to allow a counterclaim seeking indemnity and contribution from New Hampshire for similar expenses incurred by the United States, finding this counterclaim to be barred by the doctrine of sovereign immunity. Id. at 911.
It would appear as though, based on the holding in Mottolo II, that defendants may be able to assert a claim for recoupment against the State, subject to whatever defenses the State may raise, including the "discretionary act" doctrine. At this time, it would be premature to decide whether such a claim (or the alleged defenses to it) would have merit, because the Court does not know what the State specifically did in 1979 or 1980, so as to assume a specific duty to defendant. Furthermore, it is not known whether the alleged negligent acts of the State have increased response costs to defendant's detriment. While the Court dismisses defendant's second counterclaim as it improperly seeks contribution or indemnification, such dismissal is without prejudice to the defendant's right to seek recoupment at a later time. The State's motion to dismiss is hereby granted.

III. INJUNCTION
Defendant requests the Court to order the State to issue permits for the facilities in question. As mentioned above, it appears as though the decision to enforce a regulation rests within the discretion of the Commissioner of DEC. Since the Court cannot supplant DEC's judgment with its own, the Court cannot compel the State to act in an area where it is allowed to exercise its discretion. See Flacke, 514 N.Y.S. 2d at 693, 507 N.E.2d at 286. While the State may wind up paying some form of recoupment to defendant as a result of its decision, the decision whether to issue the permits is a matter best left within the province of the DEC. The State's motion to dismiss defendant's third counterclaim is granted.
After a thorough review of all materials in this matter, it is hereby
ORDERED, that the State's motion to dismiss defendant's counterclaims is granted;
ORDERED, that defendant's second counterclaim is dismissed without prejudice to its right to seek recoupment from the State.
NOTES
[1]  "Sanitary landfill" is defined as "a land disposal site employing an engineering method of disposing of solid wastes on land in a manner that minimizes environmental hazards and meets the design and operation requirements of [Part 360]." 6 NYCRR § 360.1(63). Sanitary landfills have been included in the definition of "solid waste management facility." 6 NYCRR § 360.1(69).
[2]  This information was obtained by the Court at oral argument on this motion on November 18, 1988. The Court has not been informed as to the specifics of the State's actions in this matter.