author: McMILLIN, C.J.,

text:
    Rick Lamar GRIFFIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-02096-COA.
    Court of Appeals of Mississippi.
    April 27, 2004.
    Edmund J. Phillips, attorney for appellant.

      Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   McMILLIN, C.J.,

for the Court.

¶ 1. Rick Lamar Griffin was convicted on two counts of simple assault on a law enforcement officer. The indictment arose out of an incident that occurred while Griffin was confined as a prisoner in the Newton County Jail. Griffin concedes that there is no appealable issue relating to his conviction on one count, but appeals the conviction on the remaining count on the basis that the State failed to prove that his action in striking one of the officers was willful and intentional as charged in the indictment. We find no merit in Griffin’s contentions and affirm his conviction.

I.

Facts

¶ 2. Griffin, while a prisoner confined in the Newton County Jail, appeared to have become agitated over some grievance regarding the nature of his confinement. He took a mop and used the handle to begin breaking light bulbs and the glass panels out of some of the doors. The jailer summoned the assistance of two deputy sheriffs. After Griffin refused their demands that he surrender the mop, the deputies proceeded to physically subdue him. In the course of the ensuing altercation, Griffin struck one deputy a violent blow on the shoulder with the mop handle. After the mop had been forced from Griffin’s possession, he struck the other deputy a blow to the rib cage with his fist that was of sufficient severity to crack one of the deputy’s ribs.

¶ 3. Griffin was indicted for simple assault as to both officers. He does not contest his conviction for striking one deputy with the mop handle in this appeal. However, he contends that the blow to the other deputy’s rib cage was delivered after or contemporaneously with his being sprayed with mace in an attempt to subdue him and that it was as equally plausible to conclude that the blow was delivered as an involuntary reaction to being sprayed with mace as it was that he struck the blow intentionally. On that basis, he argues that the State failed to show the necessary intent that is an essential element of the crime as charged.

II.

Discussion

¶ 4. Assault is not a crime requiring proof of specific intent; that is, the State need not prove that the defendant had formed the specific purpose of inflicting bodily injury on his victim in order to convict. McGowan v. State, 541 So.2d 1027, 1029 (Miss.1989). Rather, the prosecution must simply show that the blow itself was purposely inflicted and that the requisite bodily injury resulted.

¶ 5. Disputed issues of fact are submitted to the jury for resolution. Moran v. State, 822 So.2d 1074, 1076(¶3) (Miss.Ct.App.2002). In this instance, there was ample evidence presented showing that Griffin embarked on a purposeful course of defying the lawful orders of law enforcement officers and physically resisting their attempts to subdue and restrain him. It was certainly Griffin’s right, in his defense, to contend to the jury that the blows that broke one of the deputy sheriffs rib was in the nature of an involuntary reaction to being sprayed with mace and to seek acquittal on that basis. However, we have discovered nothing in the record before us to suggest that such a conclusion was the only reasonable interpretation of the evidence that jurors could possibly have drawn. This Court would be in the position of simply substituting our own view as to what the evidence showed for that of the jury were we to disturb this verdict on the basis urged by Griffin. That is not the proper role of an appellate court: E.g., Howard v. State, 755 So.2d 1188, 1190(¶ 10) (Miss.Ct.App.1999). We conclude that there was sufficient evidence presented from which the jury could draw a reasonable inference that the blow to the deputy’s rib cage by Griffin’s fist was purposely and intentionally inflicted as he continued on his plainly-demonstrated course of conduct to resist the efforts of officers to subdue him.

¶ 6. In framing the issue on appeal, Griffin appears to make the alternative argument that the verdict, rather than being insufficient as a matter of law, was so against the weight of the evidence that he was entitled to a new trial in order to avoid a miscarriage of justice. However, in the body of his brief, Griffin makes no argument in support of that contention, and we consider it as being abandoned. See Edwards v. State, 856 So.2d 587, 598-99(¶ 45) (Miss.Ct.App.2003).

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY OF CONVICTION OF TWO COUNTS OF SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER AND- SENTENCE OF THREE YEARS ON COUNT I AND FIVE YEARS ON COUNT II WITH SENTENCES TO BE SERVED CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $1,500 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NEWTON COUNTY.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


source: Caselaw Access Project

author: McMILLIN, C. J.,

license: Public Domain

text:
    Chylanee Nicole Dixon JOHNSON, Appellant v. Jason Paul JOHNSON, Appellee.
    No. 2002-CA-01851-COA.
    Court of Appeals of Mississippi.
    April 27, 2004.

      Stephen Travis Bailey, Tupelo, attorney for appellant.
    Kimberly Drown Kitchens, Ripley, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   McMILLIN, C. J.,

for the Court.

¶ 1. This is an appeal from a custody determination affecting a minor child made in the course of the dissolution of the marriage of Chylanee Johnson and Jason Paul Johnson. The chancellor awarded custody of the child to the father despite a contrary recommendation by a guardian ad litem appointed to represent the interests of the child. Aggrieved with the custody award, Mrs. Johnson has perfected this appeal. In the appeal, Mrs. Johnson alleges that the chancellor’s determination must be reversed because (a) the chancellor failed to adequately set out her reasons for not following the recommendation of the guardian ad litem, and (b) the chancellor abused her discretion in analyzing the proof as it applied to the Albright factors. We find no reversible error and affirm the judgment.

I.

Facts

¶2. The parties to this appeal are the parents of Jada Johnson, born July 15, 1997. Both before and after the birth of their child, the parties had an unstable relationship, living together some of the time, but also living separately a significant portion of the time. The parties, in approximately 1999, took up joint residence in Prentiss County, Mississippi, where they lived together until Mrs. Johnson, in January 2001, took the child and went to California, ostensibly for a visit with family members. However, as the stay in California extended, Mr. Johnson became convinced that Mrs. Johnson had no intention of returning with their daughter. Ultimately, it became impossible for him to contact his wife because her California relatives refused to disclose the whereabouts of Mrs. Johnson and Jada.

¶ 3. Mr. Johnson successfully obtained an order for temporary custody of Jada from the chancellor in Prentiss County. Afterwards, he flew to California where, with the assistance of a private investigator, he located his daughter and, being armed with the court order, obtained custody of her. Mr. Johnson then returned with Jada to Mississippi.

¶ 4. The chancellor, by order entered on her own motion, appointed a guardian ad litem for the child. Though there is no direct evidence in the record as to why the chancellor decided to do so, there were, in the pleadings, accusations of abuse, drug use, and other things against both parents that, if true, could have called into question the suitability of either parent to have custody. We assume that the chancellor, in light of those accusations, decided that some independent investigation of each parent’s situation beyond that produced in a courtroom setting might be helpful in resolving the custody question.

¶ 5. The guardian ad litem filed a report in which he recommended that the mother be given paramount physical custody of the child. Despite this report, the chancellor, as we have previously indicated, awarded custody to Mr. Johnson. This appeal by Mrs. Johnson followed.

n.

Failure to Follow Guardian ad Litem Recommendation

¶ 6. Mrs. Johnson contends that the appointment of a guardian ad litem in this case was mandatory under the provisions of Section 93-5-23 of the Mississippi Code stating that “when a charge of abuse and/or neglect arises in the course of a custody action,” the court “shall appoint a guardian ad litem for the child.... ” Miss. Code Ann. § 93-5-23 (Supp.2003). She then points out that, in those situations where a guardian ad litem is mandatory, the chancellor must state with some particularity both the reasoning of the guardian ad litem as well as the basis for the chancellor’s disagreement with that reasoning. In re L.D.M., 848 So.2d 181, 183(¶4) (Miss.2003). Mrs. Johnson advances the proposition that the chancellor did not suitably fulfill these requirements in making her decision.

¶ 7. We find this issue without merit for two reasons.

¶ 8. First, there is no indication in the record that the chancellor considered the appointment of a guardian ad litem to be mandatory based on allegations of neglect or abuse of the child. Though there were allegations of unsuitable behavior in the pleadings, there was no direct assertion of either neglect or abuse. The statute in question, Section 93-5-23, appears in all events to afford the chancellor some discretion in determining whether there is a legitimate issue of neglect or abuse even in those situations where one party elects to make such an assertion in the pleadings, since the statute uses the permissive “may” in authorizing the chancellor to invoke the investigatory arm of the Department of Human Services to look into the truth of the assertions. Miss.Code Ann. § 93-5-23 (Supp.2003). Thus, in those situations where the chancellor, in the exercise of her sound discretion, determines that a full-bore inquiry into such allegations is not required, we do not read the statute as requiring, nevertheless, the appointment of a guardian ad litem based merely on an unsubstantiated assertion found in the pleadings of one of the parties.

¶ 9. Secondly, our review of the record leaves us satisfied that the chancellor did, in fact, consider the recommendation of the guardian ad litem, including the underlying reasons offered by the guardian, and simply found herself unpersuaded by the rationale offered. The guardian’s recommendation appeared to have been based largely on the guardian’s belief that Mr. Johnson may have been less than truthful in assertions made to the chancellor while pursuing an emergency temporary custody order so that he could go to California and retrieve the child.

¶ 10. In the context of the issue now before us, we note that a custody determination is not intended as a reward for one parent or as punishment for the other. See Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984). Rather, it is a determination that must be made on the basis of what is in the best interest of the child. Hollon v. Hollon, 784 So.2d 943, 946-47(¶ 12) (Miss.2001).

¶ 11. There is little doubt that Mr. Johnson was left in a situation where he was unable to determine the physical whereabouts of his daughter. While this Court certainly condemns any act of misrepresentation to any court in order to persuade the court to act in a certain way, we do not think Mr. Johnson’s representations to the chancellor, even if it is conceded that they may have been exaggerated to some extent, were so egregious under the circumstances as to somehow render him unfit to serve as a custodial parent. Again, it must be kept in mind that it is the best interest of the child that serves as the focus in a custody determination, rather than using custody as a punishment tool for a parent whose conduct in matters not directly affecting the child’s welfare may properly be the subject of judicial condemnation. There is no evidence based on our review of the record that tends to convince us that Mr. Johnson’s conduct before the chancellor while pursuing an emergency custody order had any direct adverse effect on the child or that his behavior was such as to reveal some fundamental defect in his character that would render him unfit to serve as a custodial parent.

¶ 12. Secondarily, the guardian ad litem appeared concerned that Mr. Johnson had a work history of jobs that produced relatively low levels of income. The chancellor considered those concerns but noted that the family’s needs appeared to have always been provided for and that Mr. Johnson’s employment permitted him the flexibility to spend more time with his daughter. This Court is not aware of any authority for the proposition that the parent earning a greater income is entitled to some preference in a custody dispute based solely on that consideration.

¶ 13. Based on the chancellor’s on-the-record discussion of the key points of concern of the guardian ad litem and the chancellor’s own findings regarding her evaluation of their significance, we do not conclude this to be a case where the chancellor abused her discretion by simply -ignoring-or failing to adequately consider the guidance provided by the guardian ad li-tem.

¶ 14. This issue is, for the foregoing reasons, found to be without merit.

III.

The Albright Factors

¶ 15. Mrs. Johnson alternatively contends that the chancellor abused her discretion and was manifestly in error in her evaluation of the various factors now known in Mississippi jurisprudence as the “Albright factors” which, according to Mississippi Supreme Court directives, must be considered in making custody determinations. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

¶ 16. The chancellor, in her opinion, considered each of the factors, offered her analysis of the evidence relating to those factors, and then reached a conclusion as to which parent was favored under each factor. Mrs. Johnson takes issue with those findings, primarily by citing to other evidence in the record that is more favorable to her.

¶ 17. The chancellor sits as finder of fact in a child custody dispute. Rainey v. Rainey, 205 So.2d 514, 515 (Miss.1967). As such, she is vested with the responsibility to hear the evidence, assess the credibility of the witnesses, and determine ultimately what weight and worth to afford any particular aspect of the proof. Id. The findings of fact so made are entitled to deference on appeal and may be disturbed only if the appellate court is satisfied that the chancellor was manifestly in error in making them. Id.

¶ 18. In this case, the chancellor’s findings are supported by evidence in the record, which the chancellor evidently found to be persuasive. Our own review of the record does not convince us that the chancellor was plainly wrong in deciding which portion of the proof she found probative and thereafter relying on that evidence to draw her conclusions as to what award of custody would best serve the interests of the child.

¶ 19. For that reason, we find any assertion that the Albright factors were not properly considered to be without merit.

¶ 20. THE JUDGMENT OF THE CHANCERY COURT OF PRENTISS COUNTY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: KING, P. J„

text:
    Dennis BROWN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00139-COA.
    Court of Appeals of Mississippi.
    April 27, 2004.

      Dennis Brown, pro se.
    Office of The Attorney General by Charles W. Maris, attorney for appellee.
    Before KING, P.J., THOMAS and MYERS, JJ.
   KING, P. J„

for the Court.

¶ 1. Dennis Brown, pro se, appeals the denial of his request for post-conviction relief by thé Benton County Circuit Court. Brown asserts the following issue on appeal, which is quoted verbatim from his brief:

I. Appellant has been denied his constitutionally protected rights to be free from this illegally sentence/imprisonment, and without due process of law, rights to confront “obtain” witness, rights to have effective assistance of counsel, rights to be trial by a jury, rights to be free from cruel and unusual punishments, rights to equal protection.

Finding no error, this Court affirms.

FACTS

¶2. On March 17, 1998, Dennis Brown pled guilty to the crime of embezzlement and pursuant to Mississippi Code Annotated Section 97-23-19 (Rev.2000) was sentenced by the Circuit Court of Benton County to ten years in the custody of the Mississippi Department of Corrections with seven years suspended, and three years to serve; followed by five years of supervised probation. Brown was also ordered to attend drug and alcohol rehabilitation while in the custody of the Mississippi Department of Corrections, and within two years of his release, pay court costs and restitution of $1,257 to his victims.

¶ 3. Brown completed his three year sentence, was released from the custody of the Mississippi Department of Corrections, and was place on supervised probation. After failing to report to his probation officer for the months of December 2000, January 2001, and February 2001, failing to make supervision payments for the months of October 2000, December 2000, and February 2001, failure to pay court costs, failure to pay any restitution, and failure to remain within the State of Mississippi, a petition was filed to revoke Brown’s probation. Although the order revoking probation is absent in the very limited record, apparently Brown’s probation was revoked on August 13, 2001, by the Circuit Court of Benton County, and he was remanded to the custody of the Mississippi Department of Corrections to serve the remaining seven years of his previously suspended sentence.

¶ 4. On April 12, 2002, Brown filed a prose post-conviction motion in the Circuit Court of Benton County requesting that the court set aside his conviction. Brown alleged that the circuit court did not have jurisdiction over him and that his sentence was “illegal.” On or about November 18, 2002, Brown filed a petition for writ of mandamus with the Mississippi Supreme Court, requesting that the court compel the Circuit Court of Benton County to rule on his post-conviction motion of April 12, 2002. On December 4, 2002, without conducting an evidentiary hearing, the Circuit Court of Benton County denied Brown’s petition for post-conviction relief finding “petitioner was apprehended, taken into custody by the Probation and Parole officer who happened to recognize petitioner in a public place and petitioner’s probation was revoked on the 13th day of August, 2001, and petitioner was ordered to serve that portion of his sentence that was suspended.” On December 10, 2002, the Supreme Court dismissed Brown’s writ of mandamus as moot since the post-conviction motion was decided by the trial judge on December 4, 2002.

¶ 5. On December 5, 2002, Brown filed his notice of appeal and requested a complete transcription of the record. By order dated January 28, 2003, the circuit court judge denied Brown’s motion for a transcript of all the proceedings, but allowed him to proceed in forma pauperis and directed that the clerk prepare only “a transcript of proceedings wherein that portion of the sentence heretofore suspended was revoked by this Court and denying relief requested by Movant/Appellant’s Post Conviction Collateral Relief Petition.”

¶ 6. Aggrieved by the Benton County Circuit Court’s dismissal of his post-conviction motion, Brown has perfected his appeal.

ANALYSIS

I.

Appellant has been denied his constitutionally protected rights to be free from this illegally sentence/imprisonment, and without due process of law, rights to confront “obtain” witness, rights to have effective assistance of counsel, rights to be trial by a jury, rights to be free from cruel and unusual punishments, rights to equal protection.

¶ 7. In his original post-conviction relief motion Brown argues that the trial court lacked jurisdiction to impose sentence, and that the three years of actual incarceration fully paid his debt to society. He now argues on appeal that the total of three years incarceration, seven years suspended, and five years of supervised probation exceeded the maximum ten-year allowable sentence for the crime of embezzlement, and was therefore illegal pursuant to Mississippi Code Annotated Section 47-7-34.

¶ 8. The standard of review for a denial of a post-conviction motion is as follows: “this Court reviews a denial of post-conviction relief under an abuse of discretion standard.” Mitchell v. State, 754 So.2d 519, 521(¶ 7) (Miss.Ct.App.1999). The findings of the trial court must be clearly erroneous in order to overturn a lower court’s denial of a post-conviction relief motion. McClinton v. State, 799 So.2d 123, 126(¶ 4) (Miss.Ct.App.2001). However, if questions of law are raised upon appeal the standard of review is de novo. Id.

¶ 9. This Court has looked with care at the original PCR motion, and given the appellant the benefit of the doubt as a pro se litigant. Having done so, it would appear that this issue is procedurally barred as having been raised for the first time on appeal. See Rivers v. State, 807 So.2d 1280-81(¶ 5) (Miss.Ct.App.2002).

¶ 10. However, should it not be procedurally barred, it lacks merit. Time spent on probation is not included in the calculation of the maximum allowable sentence. See Carter v. State, 754 So.2d 1207, 1210 (¶ 8)(Miss.2000). Although Brown relies on the holding of Goss v. State, 721 So.2d 144 (¶ 6) (Miss.1998) to support his contention that the sentence he received is in excess of the maximum allowable by law, he fails to follow the complete history of Goss in Carter. In Carter the Mississippi Supreme Court held that “a probationary period does not equal time served,” and subsequently overruled Goss with the following language:

The subsequent effect of the Goss holding has been to restrict unnecessarily the trial courts’ ability to impose a split sentence upon a previously convicted felon. This Court’s holding in Goss that “the sentence in its totality violates the limits imposed by the statutes and offends the intent of the legislature in restricting the duration of punishment imposed by the courts” is incorrect and is therefore overruled

Carter v. State, 754 So.2d at 1210 (¶ 8).

¶ 11. Under the mandate of Carter, Brown’s period of supervised release is not counted toward his time served; therefore, Brown’s sentence of three years to serve, seven years suspended, and five years of post release supervision is within the ten years allowable pursuant to statute.

¶ 12. This Court also notes a lack of merit in the jurisdictional question raised in Brown’s original PCR motion. The jurisdiction of the Benton County Circuit Court clearly extended to the offense committed and the place where committed.

¶ 13. Although Brown served the portion of his sentence which was not suspended, he was not released from the jurisdiction of the Benton County Circuit Court until the period of suspension expired. Because that period had not expired, the Benton County Circuit Court maintained jurisdiction to revoke the suspension, and cause Brown to serve the remainder of his sentence pursuant to Mississippi Code Annotated Section 47-7-34(2). Post-release supervision revocation is to be followed just as probation according to Mississippi Code Annotated Section 47-7-34(2), and under the probation revocation statute Mississippi Code Annotated Section 47-7-37, any sentence suspended that could be imposed at the time of sentencing can be imposed on a showing that the petitioner has violated the terms of his probation.

¶ 14. The application of these statutes was considered in Johnson v. State, 802 So.2d 110, 112(¶ 9) (Miss.Ct.App.2001). After Johnson served one year of a possible five year sentence for third conviction DUI and was place on post-release supervision, his probation was revoked and the trial judge sentenced him to the remaining four years of his previously suspended sentence. Id. Johnson argued that his sentence exceeded the statutory maximum of five years, and that the fifteen months he spent in post-release supervision prior to revocation should be deducted from the four years of his re-imposed suspended sentence. Id. The trial court denied his request and on appeal this Court upheld the trial court’s decision. While acknowledging that probation and post-release supervision were different in that post-release supervision, unlike probation, did not allow the combined terms to exceed the statutory maximum, we stated “for the purposes of dealing with the issue of revocation and the proper allowance for time served, the procedures are governed just as those for supervised probation.” Id. at (¶ 10) This Court went on to cite to Mississippi Code Annotated Section 47-7-37 which states that after probation is revoked the court “may impose any part of the sentence which might have been imposed at the time of conviction.” Id. Brown was shown to have violated his probation, and pursuant to Mississippi Code Annotated Section 47-7-37 the trial judge had the right to re-impose the previously suspended seven year sentence.

¶ 15. In the present case, Brown’s sentence of three years incarceration and seven years suspended plus five years of post-release supervision does not equate to fifteen years of time-served, and the sentence is not in violation of the statute; therefore, this issue is without merit and the judgment of the Circuit Court of Benton County is affirmed.

¶ 16. THE JUDGMENT OF THE BENTON COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO BENTON COUNTY.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.

      . Miss.Code Ann. § 47-7-34. Post-Release supervision program. (1) When a court imposes a sentence upon a conviction for any felony committed after June 30, 1995, the court, in addition to any other punishment imposed if the other punishment includes a term of incarceration in a state or local correctional facility, may impose a term of post-release supervision. However, the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed. The defendant shall be placed under post-release supervision upon release from the term of incarceration. The period of supervision shall be established by the court.
      (2) The period of post-release supervision shall be conducted in the same manner as a like period of supervised probation, including a requirement that the defendant shall abide by any terms and conditions as the court may establish. Failure to successfully abide by the terms and conditions shall be grounds to terminate the period of post-release supervision and to recommit the defendant to the correctional facility from which he was previously released. Procedures for termination and re-commitment shall be conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence.
      (3) Post-release supervision programs shall be operated through the probation and parole unit of the Division of Community Corrections of the department. The maximum amount of time that the Mississippi Department of Corrections may supervise an offender on the post-release supervision program is five (5) years.