author: SOUTHWICK, P.J.,

text:
    Eddie Lee PETERS, Sr., Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00044-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2004.

      Felicia Dunn Burkes, Gulfport, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Eddie Lee Peters, Sr. was convicted of two counts of sexual battery and one count of touching a child for lustful purposes. Appointed counsel filed a brief that indicated that there were no issues deserving of reversal. ' This is an authorized áction by appellate counsel. Turner v. State, 818 So.2d 1186, 1189 (Miss.2001). We then are to perform an independent review of the record. We find no error in the proceedings below and affirm.

FACTS

¶ 2. Eddie Lee Peters, Sr. was convicted of two counts of -sexual battery and one count of touching a child for lustful purposes. In December 1996, the young girl told her mother that Peters had been “messing with” her from September through December 1996 when she was in Peters’ custody. An investigation was initiated immediately. The girl was placed in a shelter, where a psychological evaluation was performed. The girl was then placed in her mother’s custody.

¶ 3. Peters was convicted of the abuse and sentenced to thirty years’ imprisonment.

DISCUSSION

¶ 4. If an appellate counsel determines that there are no grounds to make a good faith, ethical claim of trial error in a criminal case, the Court may be so notified. Id. Certain procedural steps safeguard a defendant’s right to counsel in such situations.

(1) Counsel determines that the defendant is unlikely to prevail on appeal.
(2) Counsel files a brief indicating that the record has been examined thoroughly.
(3) Counsel advises the client of the right to file a pro se supplemental brief.

Id. The appellate court is then to examine the record for possible error along with any pro se brief and not just accept the counsel’s assertions. No pro se brief was filed.

Evidence to support conviction

¶ 5. Peters was convicted of sexual battery and of lustful touching. “A person is guilty of sexual battery if he or she engages in sexual penetration with: ... (c) A child under the age of fourteen (14) years-” Miss.Code Ann. § 97-3-95(l)(c), as adopted 1993 Miss. Laws ch. 512, § 2.

¶ 6. The child was eight years old when these offenses occurred. This girl stated that Peters stuck his finger into her vagina and placed his penis into her mouth. Her testimony included a vivid description of the events which took place between them. There was certainly evidence to support conviction under this statute.

¶ 7. The statute on lustful touching as it existed at the time of these events stated this:

Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of fourteen (14) years, with or without the child’s consent, shall be guilty of a high crime....

Miss.Code Ann. § 97-5-23(1), as adopted 1995 Miss. Laws ch. 487, § 1.

¶ 8. During the child’s testimony, she stated that Peters touched her all over her body with his hands. The direct evidence and inferences that could be derived supported the conviction.

Counsel’s appellate brief

¶ 9. In a footnote in the brief by Peters’ counsel, she noted that there had been a hearing on her motion to dismiss the charges. Two constitutional issues were raised: speedy trial and the right to effective counsel. Counsel states in the brief that the record is incomplete because the transcript of the hearing is unavailable, but asserts through the filing of the Turner brief that there is no reversible error in the denial of that motion.

¶ 10. To understand the speedy trial issue, we have examined the record and found that Peters was arrested on June 26, 1997. After being indicted, Peters waived arraignment on February 13, 1998. Trial began on September 21,1999. Though the measurement of the statutory right explicitly begins with arraignment, Miss.Code Ann. § 99-17-1 (Supp.2003), caselaw has held that the date on which a waiver of arraignment occurs will be treated as an equivalent date. E.g., Poole v. State, 826 So.2d 1222, 1228 (Miss.2002). Peters was to be tried within 270 days of the waiver of arraignment, not including the time covered by continuances duly entered.

¶ 11. There was considerably more than 270 days between the date that arraignment was waived and the beginning of trial. These are the dates which are relevant for the speedy trial issues.

6-26-97 Arrest

10-15-97 Indictment

10-31-97 Attorney appointed

1-20-98 Order substituting counsel

2-13-98 Waiver of arraignment and entry of not guilty. Trial set for 5-25-98.

3-23-98 Peters filed a Motion for Release of Family Court records, or in the Alternative for in Camera Inspection of Family Court records.

5-11-98 The Court heard the Defendant’s motion.

6-1-98 Order issued directing the Harrison County Family Court to transmit complete Family court records on KLP to the Judge for in camera review.

6-29-98 State prepared a Continuance Order indicating that the Court had not received the family court records. Order setting trial date of October 5,1998.

9-14-98 Peters filed a pro se Motion for Speedy Trial asserting a constitutional right to a speedy trial.

10-19-98 Peters filed a Motion to Dismiss because of lack of a speedy trial as guaranteed by the Sixth and Fourteenth amendments of the United States Constitution.

10-5-98 State prepared a Continuance Order indicating that the court had not yet reviewed the family court records. Reset for trial for January 18,1999.

11-9-98 Order denied defendant’s motion for the release of Family Court records.

1-18-99 Circuit Judge declined to hear the trial because he had not yet reviewed the family court records.

1-19-99 Peters filed a Motion to Dismiss Charges for not granting a Trial Within 270 Days of Arraignment.

1-25-99 Peters filed a Motion for Bond Reduction.

2-18-99 Order setting a reduced bond.

2-22-99 Setting Order. Parties agreed to a trial setting of June 7, 1999 because of a conflict with the Judge’s schedule.

2-22-99 Motion for Speedy Trial Violation denied.

6-7-99 Case called for trial. There was a dispute about the State producing items of evidence which had not previously been disclosed. Trial reset for September 20, 1999.

9-15-99 Motion to Dismiss for Failure to Grant a Speedy Trial on both constitutional and statutory grounds.

9-21-99 Trial commenced.

¶ 12. Beginning about six weeks after the waiver of arraignment and continuing until February 1999, the court dealt with an issue that Peters himself raised with his motion to require the release of family court records. Though the trial judge himself may have taken more time to review the records than was absolutely necessary, we find that the defendant’s seeking this review and the trial court’s granting it are sufficient reasons to consider that part of the delay to be the responsibility of Peters himself. Then from February 22 until June 7, 1999, the trial was delayed because of a crowded trial docket. The defendant agreed to the delay between those periods, and an order was duly entered. At most, the period between February 13 and March 23, 1998, and from June 7 until September 21, 1999, could be considered delays for which continuances were not duly entered. There was no violation of the statutory right to a speedy trial.

¶ 13. As to the Sixth Amendment speedy trial right, there are four factors to consider in determining whether there has been a violation: (1) length of delay; (2) reason for delay; (3) whether the defendant has asserted his right to a speedy trial; and (4) Whether defendant was prejudiced by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

¶ 14. We examine each of these factors.

Length of Delay

¶ 15. There is no specific length of time to determine whether a speedy trial constitutional right has been violated. Barker, 407 U.S. at 523, 92 S.Ct. 2182. The applicable time begins to run from the date Peters was arrested on June 26, 1997. Moore v. State, 837 So.2d 794, 798 (Miss.Ct.App.2003). From this date until trial 452 days passed. The Supreme Court has held that a delay of eight months or longer is “presumptively prejudicial.” Smith v. State, 550 So.2d 406, 408 (Miss.1989). This extensive of a delay leads to the need to exam the other Barker factors.

Reason for Delay

¶ 16. There is no indication in the record as to the reason for delay between arrest and indictment, a period of three and a half months. From the indictment in October 1997 until the plea of not guilty in February 1998, there was another four months. The initial trial date was to be May 25, 1998. On March 23, 1998, Peters filed a motion to release certain family court records, or at least to have an in camera inspection. On June 1, 1998, an order directed the Harrison County Family Court to deliver the records to the trial judge for in camera review. Over the next few months, tentative trial dates were set followed by continuances because of the need for the court to review the family court records. In October 1998 the State filed a continuance order because the court had not yet reviewed the family court records. At this time the trial was reset for January 18, 1999. On January 18, 1999, the judge postponed the trial because he had not yet reviewed the'reeords.

¶ 17. Many of these delays were caused by the trial judge, as he continued to fail to find an opportunity to review the relevant records. The delay resulted from an obligation created by the defendant’s motion, granted by the judge, to review these records. We find that this delay should be considered to be a neutral matter, caused neither by the State nor by the appellant.

¶ 18. On February 22, 1999, all parties agreed to a trial setting of June 7, 1999, delayed over the intervening months because of other hearings and trials to be conducted by the judge. Congested court dockets may constitute good cause for a trial’s delay. Polk v. State, 612 So.2d 381, 387 (Miss.1992). On June 7, 1999, when the case was called for trial, there was a dispute about the State’s producing items of evidence which had not previously been disclosed. The trial was reset for September 20, 1999. The record indicates that the defense attorney selected this date to conform with her schedule, even though earlier trial dates were offered by the State.

¶ 19. Both the State and the defendant contributed to the length of time between arrest and trial, with no unreasonable actions by either party being apparent.

Assertion of Right

¶ 20. Peters filed a pro se motion for speedy trial on September 14, 1998. He filed a motion to dismiss for lack of a speedy trial on October 19, 1998. He again filed a motion to dismiss because of the speedy trial issue on January 19, 1999. On September 15,1999, Peters filed another such motion. Peters was vigorous in asserting his right.

Prejudice

¶ 21. We find no indication of prejudice arising from the delay. There are no assertions of lost witnesses, hazy memories, or destroyed evidence. If there is no intentional delay and no obvious prejudice, the balance is in favor of rejecting the speedy trial claim. Rhymes v. State, 638 So.2d 1270, 1275 (Miss.1994). We find no basis to find a violation of this Sixth Amendment right.

¶ 22. We find no other issue after our review of the record that justifies a discussion. We admonish counsel, though, that Turner briefs should not be filed except in the most extreme cases in which no possible argument in favor of the defendant can be made. As our review of the speedy trial matter revealed, there was the kind of delay in this case that requires some analysis on the part of the Court on whether any rights of the appellant were violated. Counsel should err well on the side of providing assistance to the Court in its appellate review responsibilities when counsel is considering the possibility of submitting a Turner brief.

¶ 23. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF TWO COUNTS OF SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS ON EACH COUNT AND ONE COUNT OF TOUCHING A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF FIFTEEN YEARS, WITH SENTENCES TO RUN CONCURRENTLY DAY FOR DAY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    Patrick PHINISEE, a/k/a “Pat”, Appellant v. STATE of Mississippi, Appellee.
    No. 2001-KA-01840-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2004.

      William Heath Franklin, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. Patrick Phinisee was convicted in the Circuit Court of Washington County for the burglary of a dwelling house. He was sentenced as a habitual offender and was placed in the custody of the Mississippi Department of Corrections for a term of twenty years. The last five years of this sentence were to be served on post-release supervision under the department’s probation and parole office. After denial of his post-trial motions, Phinisee filed this appeal raising the following issues:

I. WHETHER THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
II. WHETHER THE VERDICT WAS SUFFICIENTLY SUPPORTED BY THE EVIDENCE

STATEMENT OF FACTS

¶ 2. On the morning of February 22, 2001, Christine Gaston left her home and went to work. That afternoon, the Green-ville Police Department received an anonymous call regarding á residential burglary. The caller stated there were three male suspects and identified one of them by name. As for the second suspect, the caller stated he was wearing a black jacket, dark pants and a skull cap. As for the third suspect, the caller stated he was wearing a maroon jacket. This phone call was relayed to officers on patrol and several units arrived on the scene within minutes.

¶ 3. After noticing there were other officers located in the front of Gaston’s house, Lieutenant Graise and Officer Brooks traveled around to a parallel street located immediately behind the rear of the house in order to set up a perimeter. Brooks exited the patrol car and proceeded behind the house. There, he observed a male suspect wearing a black jacket and dark pants leave Gaston’s house through the patio door and jump over a chain link fence onto the adjacent property. Brooks observed the suspect nervously pacing back and forth in the adjacent yard. The suspect then attempted to enter a work shed as Brooks and Officer White entered the yard through a gate and ordered him to lie on the ground.

¶ 4. After the suspect was apprehended, he was identified as Phinisee. A search for the two other suspects proved to. be unsuccessful. By this time, Investigator Cannon was at the crime scene. Cannon took photographs and dusted for prints. There was evidence the rear patio door had been forced open and the interior of the house was in disarray. Two large televisions were located on the floor right next to the rear patio door.

¶ 5. Gaston was notified of the incident and returned home to complete an inventory. She then proceeded to the police station and notified Cannon that two phones had been taken from the house.

¶ 6. Phinisee was indicted for the burglary of a dwelling house pursuant to Mississippi Code Annotated Section 97-17-23. At his arraignment, Phinisee pled not guilty. A trial was held, and at the close of the State’s evidence, Phinisee moved for a directed verdict. The trial judge denied this motion. Phinisee’s counsel then requested a brief recess in order to advise his client as to his right against self-incrimination. Both men then returned to the courtroom where counsel announced that Phinisee would not take the stand. The trial court asked Phinisee if this was indeed his decision to which he affirmatively replied.

¶ 7. The jury convicted Phinisee and he moved for a judgment notwithstanding the verdict, or in the alternative, a new trial. The trial court denied this motion and sentenced Phinisee as a habitual offender pursuant to Mississippi Code Annotated Section 99-19-81. Thereafter, Phinisee perfected this appeal.

LEGAL ANALYSIS

I. WHETHER THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

¶ 8. In raising a claim for ineffective assistance of counsel, an appellant must show (1) a deficiency of counsel’s performance that is (2) sufficient to constitute prejudice to his defense. Swington v. State, 742 So.2d 1106, 1114 (¶ 22) (Miss.1999) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Phinisee has the burden of proving both of the elements under Strickland. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990).

¶ 9. In addition, there is a “strong but rebuttable presumption that counsel’s conduct falls within a broad range of reasonable professional assistance.” Id. In order to overcome this presumption, the appellant must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Finally, our decision as to whether counsel’s efforts were effective is based on the totality of the circumstances. McQuarter, 574 So.2d at 687.

¶ 10. Phinisee raises several allegations against his counsel. First, Phinisee argues counsel provided ineffective assistance in preparing for trial. In support of this argument, Phinisee alleges his counsel only met with him three times and failed to explain the options as far as pleading guilty or going to trial. Namely, counsel failed to explain that Phinisee would be charged as a habitual offender.

¶ 11. Second, Phinisee argues counsel provided ineffective assistance during jury selection. In support of this argument, Phinisee alleges his counsel prohibited him from participating in voir dire and failed to exercise challenges against certain prospective jurors.

¶ 12. Finally, Phinisee argues counsel provided ineffective assistance at trial. In support of this argument, Phinisee alleges counsel inadequately cross-examined the State’s witnesses, erroneously advised him not to testify and failed to present a defense.

A. Trial Preparation

¶ 13. As to counsel’s alleged errors in preparation for trial, we find no error. Phinisee has failed to direct our attention to any supporting evidence in the record. This Court has held that each case must be decided by the facts shown in the record, not assertions in the brief. Walker v. State, 823 So.2d 557, 561(¶ 6) (Miss.Ct.App.2002). As a result, we are unable to consider the assertions.

B. Jury Selection

¶ 14. As to counsel’s alleged jury selection errors, we also find no error. The entire jury selection process is included in the trial transcript. We find no indication that Phinisee was prohibited from participating in the selection process.

¶ 15. In addition, counsel’s decision to challenge or decline to challenge prospective jurors will not constitute a basis for ineffective assistance of counsel unless the decision is “so ill chosen that it permeates the entire trial with obvious unfairness.” Burns v. State, 813 So.2d 668, 675-76 (¶ 22) (Miss.2001). In the present case, Phinisee’s counsel actively participated in selecting the jury by efficiently striking certain prospective jurors during voir dire. Moreover, Phinisee’s attorney explicitly questioned suspected jurors regarding their ability to render an impartial verdict. The record indicates that one prospective juror’s response was somewhat equivocal. Phinisee’s counsel, however, elected to use a strike as to this particular veniremen. We find counsel’s decisions regarding jury selection proper.

C. Trial

¶ 16. Finally, we find no error with counsel’s performance at trial. The record indicates counsel was effective in revealing discrepancies in the officers’ testimony regarding Phinisee’s movement, the color of his jacket, and the absence of the skull cap.

¶ 17. Phinisee also argues that counsel erroneously advised Phinisee not to testify and should have called his cousin as a witness in his defense. Phinisee has failed to state why his counsel’s advice was erroneous. The record indicates that Phinisee’s counsel requested a short recess to advise his client regarding his Fifth Amendment right against self-incrimination. After the two men returned to the courtroom, the following transpired:

Counsel: Your Honor, I have discussed with Mr. Phinisee his right to testify if he decided as well as his right to remain silent. He has stated that he does not wish to testify. And again, I explained to him that he did have that right, but he said he did not want to.
The Court: Mr. Phinisee, I’d like to make sure that that is your choice.... It is my understanding that you are deciding not to. And I just want to make sure. You have any questions about your right to testify? Your right to remain silent?
Phinisee: No, ma’am.

¶ 18. Moreover, “[t]he mere failure to call witnesses for the defense, standing alone, does nothing to demonstrate ineffective assistance of counsel.” Magee v. State, 744 So.2d 379, 381(¶ 8) (Miss.Ct.App.1999). It is common for criminal trials to end in a defendant’s verdict where the defense puts on no evidence and, in summation, affirmatively uses the decision not to put on any evidence as a means of emphasizing the weakness of the prosecution’s evidence. Id.

¶ 19. We find Phinisee’s counsel rendered effective assistance throughout the trial. Phinisee has failed to show prejudice and that, but for counsel’s errors, the outcome would have been different. As a result, we find Phinisee’s first issue to be without merit.

II. WHETHER THE VERDICT WAS SUFFICIENTLY SUPPORTED BY THE EVIDENCE

¶ 20. Phinisee argues that the trial court erroneously denied his motion for a directed verdict and his motion for a judgment notwithstanding the verdict. In reviewing the sufficiency of evidence, our case law is well settled.

When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence, our authority to interfere with the jury’s verdict is quite limited. We proceed by considering all of the evidence — not just that supporting the prosecution — in the light most consistent with the verdict. We give the prosecution the benefit of all favorable inferences that may be reasonably drawn from the evidence. If the facts and the inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, reversal and discharge are required. On the other hand, if there is in the record such substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fairminded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.

Moody v. State, 841 So.2d 1067, 1092 (¶ 73) (Miss.2003).

In other words, once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part that given the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty.

May v. State, 460 So.2d 778, 781 (Miss.1984) (citing Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983)).

¶21. At trial, Officer Brooks testified that he observed Phinisee leave Gaston’s house through the rear patio door and jump into the adjacent yard. Brooks also observed Phinisee’s attempts at evading capture. This testimony was corroborated by Lieutenant Graise.

¶ 22. Investigator Cannon testified that the rear patio door had been forced open with some sort of tool. Cannon also testified that two large televisions were dragged from other rooms and placed near the door that had been forced open.

¶ 23. Furthermore, Gaston testified that she gave no one permission to be inside her house on the day in question and that she did not leave her house in the condition in which it was found. Gaston also testified that she learned two phones were missing from her house after she completed an inventory.

¶ 24. In accepting the evidence in the light most favorable to the State, this Court finds there was sufficient evidence presented through the testimony of the State’s witnesses to allow the jury to decide Phinisee was guilty as charged for the burglary of Gaston’s house. Moreover, considering all of the evidence in the record and giving the State the benefit of all favorable inferences that may be reasonably drawn from the evidence, and taking all the aforementioned evidence as true, reasonable men could have found Phinisee guilty. As a result, we find Phinisee’s final issue to be without merit.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF BURGLARY OF A DWELLING HOUSE AS A HABITUAL OFFENDER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE LAST FIVE YEARS ON POST-RELEASE SUPERVISION IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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


author: THOMAS, J.,

text:
    Robert Clark CARLE, Sr., Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-00699-COA.
    Court of Appeals of Mississippi.
    Jan. 20, 2004.

      Lisa D. Collums, Frank Philip Witt-mann, Gulfport, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Robert Carle, Sr. was convicted in the Circuit Court of Harrison County of eight counts of sexual battery, one count of statutory rape, and three counts of touching a child for lustful purposes. Aggrieved, he asserts the following issues on appeal:

I. TRIAL COUNSEL WAS INEFFECTIVE AND UNDER THE TOTALITY OF THE CIRCUMSTANCES ROBERT CARLE, SR. WAS DEPRIVED HIS RIGHT TO A FAIR TRIAL.

II. THE WEIGHT AND CREDIBILITY OF THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT.

Finding no error, we affirm.

FACTS

¶ 2. During the summer of 1998, Robert Carle resided in a two bedroom apartment in Gulfport, Mississippi. Carle’s then fourteen-year-old daughter, JL, lived in the apartment with him along with two sons as well as three of the older son’s friends. JL’s mother had left the family and the children were not allowed contact with her. Shortly after her fourteenth birthday, JL said that Carle began to make sexual jokes and grab and pinch her. JL stated that soon after Carle began to stick his hands under her clothes. By July of 1998, Carle began to touch JL constantly. Carle told JL that he would get rid of her boyfriend if she did not have sex with him. Carle intimated that the apartment was surrounded by woods and he would kill her boyfriend and bury him in the woods if she did not comply with his wishes.

¶ 3. JL allowed Carle to touch her and they later had oral, vaginal, and anal sex over the next few months. This continued until sometime in late spring, early summer of 1999 when JL left the apartment because she could not stand it any longer. JL stayed with a friend for a few days until she could locate her mother. Subsequently, she moved in with her mother for a month before going to stay with another friend for a few months. JL notified the Gulfport Police Department of the events which'had occurred at Carle’s apartment.

¶ 4. Before JL left the apartment, one of her friends, JM, would visit her at Carle’s apartment. JM’s boyfriend lived at the apartment and was a friend of Carle’s oldest son. In February 1999, JM was thirteen years old. One evening, -Carle instructed JM to go into his room and then to take her clothes off and get in his bed. JM did as Carle instructed and Carle kissed her and rubbed on her. On another occasion, Carle again instructed JM to get into bed with him.. Carle forced her legs open and penetrated her with his finger. JM allowed Carle to do these things because he threatened her and threatened to throw her boyfriend out on the street if she, did not. JM initially told the Gulfport Police Department about only the first incident with Carle and was reluctant to speak about it. Later, JM disclosed the-penetration incident.

¶ 5. At the conclusion of the State’s evidence, the defense moved for a directed verdict, arguing that the State failed to prove with .specificity the actions for all counts. Defense counsel specifically argued that the two counts of anal penetration were only testified to in vague generalities by JL. The trial court denied the motion on all counts except to count twelve, which was one of the two specifically singled out by the defense. After closing arguments, the defense renewed all motions which were denied. The trial, court then ruled on the mental capacity of Carle based upon an agreed order to have Carle examined by a psychiatrist, Dr. Henry Maggio. Dr. Maggio’s report stated that in his opinion at the time of the incident, Carle knew the difference between right and wrong and could appreciate his actions and , was not suffering from a mental illness. Defense counsel added that she saw nothing in -her representation that would alter the opinion of Dr. Maggio. The jury returned a guilty verdict on eight counts of sexual battery, one count of statutory rape, and three counts of touching a child for lustful purposes. A judgment nisi was issue for Carle and after his apprehension, he was sentenced to a total of three hundred fifteen years in the custody of the Mississippi Department of Corrections.

ANALYSIS

I. WAS TRIAL COUNSEL INEFFECTIVE AND UNDER THE TOTALITY OF THE CIRCUMSTANCES WAS ROBERT CARLE, SR. DEPRIVED HIS RIGHT TO A FAIR TRIAL?

¶ 6. Carle asserts that his trial counsel was ineffective and due to his trial counsel’s ineffectiveness he was deprived his right to a fair trial under the totality of the circumstances. Carle asserts that his counsel failed to obtain and present at trial any evidence that was relevant to whether the rape and sexual battery actually occurred, including subpoenaing any witnesses who would have testified favorably for the defense and supported the defense theory that one or both of the girls were lying about Carle’s actions. Carle asserts that his trial counsel failed to obtain any additional psychological testing regarding his mental state other than Dr. Maggio, and that Dr. Maggio’s report was only brought up at the conclusion of trial when it was mentioned by the trial judge.

¶ 7. Carle also asserts that his counsel failed to ask follow up questions of jurors during voir dire, failed to note the race of the jurors on the jury list for the record, and failed to limit the evidence introduced by the State against Carle. This included limiting statements made by Investigator Ing who was allowed to testify regarding statements made to her by JL and JM along with several other examples of purported hearsay. Carle admits that some of the incidences may have been permissible, it is incumbent upon defense counsel to see that the State follows the rules and establishes an exception if one exists. The evidence also included statements that Carle provided marijuana and alcohol to the minors at his apartment which would consist of other crimes for which Carle was not indicted.

¶ 8. In order to prove ineffective assistance of counsel, Carle must establish by a preponderance of the evidence that (1) counsel’s performance was defective, and (2) that defect was so prejudicial as to prevent Carle from having a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Moody v. State, 644 So.2d 451, 456 (Miss.1994). Carle faces a strong yet rebuttable presumption that counsel performed adequately, and he must show a reasonable probability that barring counsel’s errors, the result of the trial would have been different. Moody, 644 So.2d at 456. “On review, we look with deference upon counsel’s performance, considering the totality of the circumstances to determine whether it was both deficient and prejudicial.” Conner v. State, 684 So.2d 608, 610 (Miss.1996). Should we find that Carle’s counsel was ineffective, the appropriate remedy is remand for a new trial. Moody, 644 So.2d at 456.

¶ 9. Although Carle asserts that his counsel failed to obtain and present at trial any evidence that was relevant to whether the rape and sexual battery actually occurred, he fails to mention what this evidence would have been or who the witnesses would have been that would have testified in his support. Carle mentions in his brief that one of the State’s witnesses testified that JL told lies; however, he fails to mention that the witness also limited that statement about JL saying she only meant “little lies” and that she believed JL when told about Carle’s actions.

¶ 10. Carle also presents no evidence supporting a finding that his trial counsel had an obligation to request additional psychological testing. Dr. Maggio examined Carle and found that he knew the difference between right and wrong, was capable of assisting trial counsel, and did not suffer from any mental illness that would have contributed to his actions at the time of the offense.

¶ 11. Similarly, Carle presents no evidence that his trial counsel acted deficiently in not asking follow-up questions of potential jurors. Carle provides no identification of jurors that should have been further questioned, nor does he provide statements by jurors in support of his claim. Also, “[flailing to note the race of the jurors on the jury list does not raise an issue under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), nor does it rise to the level of ineffective assistance of counsel under any authority shown to this Court.” Al-Fatah v. State, 856 So.2d 494, 502(¶ 22) (Miss.Ct.App.2003).

¶ 12. In regard to limiting testimony, the State points out that Carle’s counsel allowed Investigator Ing to testify to the statements given to her by JL and JM as part of her trial strategy. Carle wanted JM’s statement admitted because initially JM was reluctant to talk to Ing and JM told Ing that Carle did not penetrate her. The most probative statements in Ing’s report were already in evidence since both JM and JL had already testified regarding Carle’s actions. Additionally, Ing’s testimony on direct about the crimes went to the place and time of the events. Carle alleges other hearsay violations but admits that some of them may have been admissible under the hearsay exceptions. Carle fails to allege these violations with specificity and fails to provide any proof of prejudice arising from them.

¶ 13. Lastly, Carle alleges that his trial counsel was deficient in not objecting to testimony that he provided marijuana and alcohol to the minors at his apartment which would be inadmissible as other crimes for which he was not indicted. Carle does not assert that both JM and JL were under the influence of either alcohol or marijuana during the incidents to which they testified. JL testified that the events took place multiple times over a period of months, and JM testified to two separate occurrences. Although the evidence should not have been admitted, it was harmless error given the unequivocal, un-rebutted testimony of the victims.

¶ 14. “To warrant reversal, two elements must be shown: error, and injury to the party appealing.” Triggs v. State, 803 So.2d 1229, 1235(¶ 19) (Miss.Ct.App.2002) (citing Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So.2d 216, 221 (Miss.1969)). “Error is harmless when it is trivial, formal, or merely academic, and not prejudicial to the substantial rights of the party assigning it, and where it in no way affects the final outcome of the case.” Id. “[I]t is prejudicial, and ground for reversal, only when it affects the final results of the case and works adversely to a substantial right of the party assigning it.” Id. In comparison to the charges against Carle, providing alcohol and marijuana paled in comparison. The failure to object to its admission does not rise to the level of prejudice required under Strickland.

¶ 15. This issue is without merit.

II. WAS THE WEIGHT AND CREDIBILITY OF THE EVIDENCE INSUFFICIENT TO SUPPORT THE VERDICT?

¶ 16. Carle asserts that the weight and credibility of the evidence was insufficient to support the verdict. Carle argues that JL’s testimony contained inconsistencies and that there was testimony that JL had a propensity to lie. Carle also argues that JM’s claims lacked specificity. Carle argues that with as many people living in his small two bedroom apartment, there would have been witnesses to the events described by JL and JM if they actually took place.

¶ 17. “If there is sufficient evidence to support a verdict of guilty, this Court will not reverse.” Meshell v. State, 506 So.2d 989, 990 (Miss.1987). See also Haymond v. State, 478 So.2d 297, 300 (Miss.1985); Fairley v. State, 467 So.2d 894, 902 (Miss.1985). This Court should reverse only where, “with respect to one or more elements of the offense charged, the evidence so considered is such that reasonable and fair minded jurors could only find the accused not guilty.” Alexander v. State, 759 So.2d 411, 421(¶ 23) (Miss.2000) (quoting Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995)).

¶ 18. The standard of review in determining whether a jury verdict is against the overwhelming weight of the evidence is also well settled. “[T]his Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Collins v. State, 757 So.2d 335, 337(¶ 5) (Miss.Ct.App.2000) (quoting Dudley v. State, 719 So.2d 180, 182(¶ 9) (Miss.1998)). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Collins, 757 So.2d at 337(¶ 5) (citing Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992)). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Collins, 757 So.2d at 337(¶ 5) (quoting Dudley, 719 So.2d at 182).

¶ 19. “[T]he Mississippi Supreme Court has held that the ‘totally uncorroborated testimony of a victim is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other evidence.’ ” Taylor v. State, 836 So.2d 774, 777(¶ 13) (Miss.Ct.App.2002) (quoting Christian v. State, 456 So.2d 729, 734 (Miss.1984)). Additionally, JL’s younger brother testified that he heard Carle tell JL that she was “sweet as sugar and nice as strawberries” and that he heard sounds which he described as the sounds of smacking or french kissing. It is the jury’s duty to resolve conflicts in testimony. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). Similarly, inconsistencies and other matters of credibility and weight are for the jury to resolve. Kimbrough v. State, 379 So.2d 934, 936 (Miss.1980).

¶ 20. There is sufficient evidence for a reasonable and fair minded juror to find Carle guilty of the crimes with which he was charged. Accepting as true the evidence which supports the verdict, the verdict was not against the overwhelming weight of the evidence. This issue is without merit.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF EIGHT COUNTS OF SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS ON EACH COUNT, ONE COUNT OF STATUTORY RAPE AND SENTENCE OF THIRTY YEARS, AND THREE COUNTS OF TOUCHING A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF FIFTEEN YEARS ON EACH COUNT, ALL SENTENCES TO RUN CONSECUTIVELY FOR A TOTAL OF THREE HUNDRED FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: IRVING, J.,

text:
    Philip Edward WITTERS, Appellant, v. Tara L. WITTERS, Appellee.
    No. 2002-CA-00681-COA.
    Court of Appeals of Mississippi.
    Jan. 27, 2004.

      Travis T. Vance, Vicksburg, attorney for appellant.
    William R. Wright, Jackson, W. Benton Gregg, attorneys for appellee.
   IRVING, J.,

for the Court.

111. Phillip Edward Witters and Tara L. Witters were divorced in August 2001. Thereafter, Tara filed a petition to modify the visitation schedule and a petition for citation of contempt against Phillip alleging failure to pay child support and mortgage payments. A final judgment on all outstanding motions was entered in March 2002. Aggrieved by the chancellor’s decision, Phillip has appealed, asserting that the court erred: (1) in placing restrictions on his visitation with his child in the absence of a finding that these restrictions were necessary to avoid harm to the child, (2) in finding that the method of transportation of the minor child for the visitation schedule was not working, (3) in finding him in contempt of court, and (4) in ordering him to pay Tara $500 in attorney fees plus court costs in the contempt action.

¶ 2. We find merit in issues one and two; therefore, we reverse and render in part and affirm in part.

FACTS

¶ 3. Phillip Edward Witters and Tara L. Witters were divorced on the ground of irreconcilable differences in August 2001. Phillip was ordered to pay child support in the amount of $566 per month and mortgage payments on the marital home in the amount of $1039 per month. The chancellor granted Phillip and Tara joint legal custody of the couple’s two-year-old child Juliana, with Tara having physical custody and Phillip having reasonable visitation. Since Tara and the child had moved to Michigan prior to the divorce, and Phillip continued to live in Mississippi, the parties agreed to a seven-day period of monthly visitation that would remain in effect until Juliana entered kindergarten, at which time the visitation would then become alternate weekends. The relevant visitation provision provided that Phillip would have visitation with the child beginning at 9:00 a.m. on the first Saturday of each month and continuing until 9:00 a.m. on the following Saturday. Phillip agreed to give Tara at least seven days’ written notice when he intended not to exercise his visitation. He also agreed to remain with Juliana during all visitation periods. Both parents agreed to notify each other if the child was taken out of state during periods of custody and visitation.

¶ 4. Tara and Juliana moved to Michigan in November of 2000. Phillip started receiving weekend visitation in March 2001 pursuant to a temporary court order and traveled to Michigan every other weekend to visit with the child from 9:00 a.m. Saturday morning to 4:00 p.m. Sunday afternoon. Phillip testified that he never missed a scheduled visitation. After the judgment of divorce was entered, Phillip began exercising his seven-day monthly visitation which had been awarded to him in the judgment of divorce. During Phillip’s September 2001 visit, he picked up Juliana and informed Tara that he planned to take the child to Mississippi instead of remaining in Michigan as he had done on prior occasions. Phillip testified that since he did not know that he would be driving back to Mississippi with the child to spend his visitation week, he only gave Tara fifteen minutes’ notice. Phillip stated that he and the child drove instead of flying since airline flights were cancelled throughout the United States due to the terrorist attacks of September 11. In October, Phillip again drove to Michigan to pick up his daughter and then drove back to Mississippi where he exercised his one week visitation with the child. On both occasions, he returned the child to her mother by airplane. In November, Phillip exercised his visitation by remaining in Michigan with the child at his sister’s home. However, in December and the following January, Phillip again exercised his seven-day monthly visitation by driving to Michigan to pick up Juliana and returning the child by car at the end of the visitation period.

¶ 5. In response, Tara filed a motion for injunctive relief seeking to temporarily stop Phillip from driving back and forth from Michigan to Mississippi with the child. She then filed a petition for modification requesting that the court modify the visitation provision in the judgment of divorce. Tara alleged that Phillip’s actions were in willful disregard for Juliana’s safety and welfare and that he had created a material change in circumstances that was not in the child’s best interest. The court began hearing testimony on the two motions on October 19, but the hearing was continued until a later date. Although resolution of the motions for injunctive relief and modification were still pending in Mississippi, Tara filed an emergency motion with the court in Michigan on November 1, alleging child abuse and neglect of Juliana during Phillip’s visitation with the child. The Michigan court refused to exercise jurisdiction over the matter. The hearing in Mississippi on the motion for injunctive relief was resumed on November 7.

¶ 6. On November 26, Tara filed a petition for citation of contempt, alleging that Phillip had failed to pay court-ordered child support and mortgage payments. Phillip answered and asserted that since the entering of the judgment of divorce, he had been required to spend large sums of money as a result of appearing in court on numerous occasions to defend his exercise of visitation. He consequently asked the court to consider this financial burden placed on him. On December 19, the court again resumed hearing testimony on Tara’s motions for modification and contempt. After yet another continuance, the trial was finally concluded on January 31, 2002.

¶7. At the conclusion of the evidence, the chancellor found that the visitation schedule should be modified since the current method of transportation was not working. The chancellor further found that it was not in the child’s best interest to be transported by automobile by one adult from Michigan to Mississippi on a monthly basis and ordered that more than one adult be in the automobile when traveling with the child between the two states. The chancellor also found Phillip in contempt for failure to timely pay his child support and mortgage payments. Tara was awarded $500 in attorney fees plus court costs because the court found that she did not have the financial ability to pay her attorney.

¶ 8. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

Standard of Review

¶ 9. This Court’s scope of review in domestic relation cases is strictly limited. Brawdy v. Howell, 841 So.2d 1175, 1178(¶ 8) (Miss.Ct.App.2003). We will not disturb the findings of a chancellor unless we find an abuse of discretion, an erroneous application of law, or a manifest error. Id. Thus, if we find substantial evidence in the record to support the chancellor’s findings, we will not reverse. Id.

(1) Restriction of Visitation

¶ 10. Phillip first argues that the court erred in placing restrictions on his visitation with Juliana without a finding that these restrictions were necessary to avoid harm to the child. He maintains that the court erred further in finding that the method of transportation of the child was not working. For the sake of clarity, issues one and two will be treated as a single issue.

¶ 11. The law is well settled that a chancellor has great discretion in making a determination of what is in the best interest of the child as it relates to visitation issues. Ellis v. Ellis, 840 So.2d 806, 812(¶ 24) (Miss.Ct.App.2003). Phillip correctly asserts that this Court has recognized that both parents must be allowed an opportunity to maintain a healthy relationship with their child. Porter v. Porter, 766 So.2d 55, 58(¶ 13) (Miss.Ct.App.2000). Tara properly advances that in order to modify a visitation order, it must be shown that the prior decree for visitation is not working, and that a modification is in the best interest of the child. Ellis at 812(¶ 25). A material change in circumstance is not required. Cox v. Moulds, 490 So.2d 866, 869 (Miss.1986).

¶ 12. Phillip cites Mord v. Peters, 571 So.2d 981 (Miss.1990), and the Virginia case of Eichelberger v. Eichelberger, 2 Va.App. 409, 413, 345 S.E.2d 10, 12 (1986), in support of his position. In Mord, a mother sought to prohibit her former husband from allowing the parties’ children to fly in his private airplane and take flying lessons. Similarly, the mother in Eichelber-ger sought to prohibit her ex-husband from allowing their son to operate a “mini-bike.” In both cases, the courts held that “in the absence of a finding that the activities at issue presented a danger to the children, the custodial parents could not restrict visitation activities between the non-custodial parent and child.”

¶ 13. The case at hand is analogous to Eichelberger and Mord. Here, Tara seeks to prevent Phillip from driving back and forth from Michigan to Mississippi with Juliana. She testified that it was dangerous for Phillip to drive to and from Michigan to Mississippi with the child because of the possibility of being in an accident due to sleep deprivation. Tara also expressed concern that Phillip’s stopping for less than half an hour during the trip was not enough time to allow the child freedom of movement. Tara further testified that the visitation schedule was not working because “Phillip was driving the child to Mississippi, putting her in daycare while there, and ruining her schedule so that when Juliana came home, she was exhausted, angry, clingy, and crying all the time.” Tara however stated that she did not have any proof that the traveling was hurting the child.

¶ 14. During his testimony, Phillip stated that the visitation in Mississippi gave him quality one on one time needed to develop a loving relationship with his daughter. He maintained that he wanted to exercise his visitation with Juliana in Mississippi because it was her home and this would show the child that he loved and did not leave her. Phillip stated that he and the child had a wonderful time on the trip and it was a beautiful bonding experience. He testified that the child was restrained throughout the entire time he drove, and she slept a third or greater of the trip. Phillip testified that when Juliana was not sleeping, he and the child sang songs, read books and colored, and stopped at rest areas and McDonald’s to have picnics. He further stated that he would have stopped the car and gotten a hotel room if he felt that there was any time he could not drive due to sleepiness. Phillip acknowledged that he remained awake while driving by drinking Mountain Dew and coffee, and eating licorice and doughnuts.

. ¶ 15. Dr. Wood Hiatt, a medical doctor and psychiatrist, also testified on behalf of Phillip. He stated that he saw no evidence that sleep deprivation had affected Phillip’s ability to travel or that travel by car was harmful to the child. Dr. Hiatt also testified that the seven-day visitation period was working, and it was in the child’s best interest to leave the visitation schedule as it was.

¶ 16. We find that the chancellor’s determination that another adult be in the car when transporting Juliana back and forth between Michigan and Mississippi was manifestly erroneous. Phillip properly advances that unless compelling reasons are shown, the non-custodial parent during permitted visits with the child should have essentially unfettered discretion regarding the “place and manner” of the visit. Porter, 766 So.2d at 58(¶ 13) (Miss.2000). We further find that nothing in the record suggests that the visitation schedule was not working, and thus no compelling reasons exist that would warrant placing restrictions on Phillip’s visitations with his child. The evidence before us does not suggest that driving back and forth with Juliana in a car creates any potential hazard to the child. For the foregoing reasons, the chancellor’s ruling on the issue of modification of visitation is reversed and rendered.

(2) Contempt of Court

¶ 17. Phillip next asserts that the court erred in finding him in contempt of court. He concedes that he had been late in making some of his child support and mortgage payments, but this was due to a financial burden placed on him in defending his right to exercise his visitation with his child.

¶ 18. The purpose of civil contempt is to enforce or coerce obedience to the orders of the court. Lahmann v. Hallmon, 722 So.2d 614, 620(¶ 19) (Miss.1998). It is well-settled law that contempt matters are committed to the substantial discretion of the chancellor. Id. This Court will not reverse a contempt citation where the chancellor’s findings are supported by substantial credible evidence. Varner v. Varner, 666 So.2d 493, 496 (Miss.1995).

¶ 19. Phillip cites Lipsey v. Lipsey, 755 So.2d 564 (Miss.Ct.App.2000) in support of his argument. In Lipsey, a former wife was late on several child support payments, but at the time of trial she was not past-due on any payment obligations. Id at 568(¶ 17). This Court affirmed the chancellor’s finding that the ex-wife was not in contempt, reasoning that “civil contempt was not a proper recourse for the chancellor to take as there was no overdue payment Sherry need be forced to pay.” Id.

¶ 20. The case sub judice can be distinguished. Although Phillip was current on his child support and mortgage payments at the conclusion of the hearing in January 2002, he was not current at the conclusion of the past hearings or when the petition for citation of contempt was filed. While testifying during the hearing held in December, Phillip admitted that the September child support payment was late, and the check subsequently bounced; that the October child support payment was late; that the November child support payment was late and had not been paid at the time of the November hearing, although it was later paid oh November 27th; and the December payment was late although it was paid on December 19, the day of the hearing. ' Further, the following exchange occurred on cross examination of Phillip:

Q: Now, under the Judgment of Divorce, you’re required to make the mortgage payment on the former marital residence; are you not?
A: Yes, I am.
Q: And the amount of money you’re supposed to pay every month is $1,039.00; is that correct?
A: That’s correct.
Q: And as of today, you are two payments behind; is that correct?
A: I owe December — I owe December’s payment.
Q: When did you make the November payment?
A: I believe it was last week. ■
Q: And it was extremely late, wasn’t it?
A: Yes, it was late.

¶ 21. Further, Tara testified that Phillip has been as late as two months in paying the mortgage, and pointed out that since her name is still on the mortgage, her credit is affected when Phillip is late with the payments. It is clear from the record that there was ample testimony and evidence to support the chancellor’s finding that Phillip was in contempt for failure to timely pay his child support and mortgage payments. A review of the record reveals the chancellor did not abuse her discretion. Therefore, this issue is without merit.

(3) Attorney Fees

¶ 22. Phillip finally asserts that the court erred in awarding attorney fees and court costs to Tara. Again he cites Lipsey v. Lipsey to support his proposition. In Lipsey, this Court affirmed a chancellor’s finding that the husband was not entitled to attorney fees. The Court reasoned that “there were no grounds for finding Sherry in contempt; therefore, attorney fees cannot be awarded to Joe on this basis.” Id. (¶ 18). This case is inapplicable to this issue since we affirmed the chancellor’s finding that Phillip was in contempt. Further, our supreme court has consistently held that when the court denies a spouse’s petition for contempt, no award of attorney fees is warranted. Hallmon, 722 So.2d at 623(¶ 34). Since Tara was successful on her motion for contempt, it follows that she is eligible for an award of attorney fees. A review of the record indicates that the chancellor did not abuse her discretion; therefore, this issue is without merit.

¶ 23. THE JUDGMENT OF THE CHANCERY COURT OF WARREN COUNTY IS REVERSED AND RENDERED ON THE ISSUE OF MODIFICATION OF VISITATION; AND AFFIRMED ON THE CONTEMPT AND ATTORNEY FEES ISSUES. COSTS OF THIS APPEAL ARE ASSESSED ONE THIRD TO THE APPELLEE AND TWO THIRDS TO THE APPELLANT.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. KING, P.J., CONCURS IN RESULT ONLY.

      . The hearing from which Phillip bases his appeal was held on four different days. The court heard testimony on October 10, November 7, December 19, 2001, and on January 7, 2002.

      . Tara apparently later abandoned her motion for injunctive relief. An agreed order was entered on November 7 whereby the parties agreed that Tara’s petition for injunctive relief should be vacated. The parties stipulated that the court would consider all evidence previously presented at the October 10 and November 7 hearings in considering Tara’s petition for modification.


text:
    Tyrone GARNER, Appellant, v. STATE of Mississippi, APPELLEE.
    No. 2003-CP-00303-COA.
    Court of Appeals of Mississippi.
    Jan. 27, 2004.

      Tyrone Garner, Appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. The Panola County Circuit Court dismissed the petition for post-conviction relief submitted by Tyrone Garner after finding the allegations in the petition lacked merit. Aggrieved, Garner filed this appeal, arguing his guilty plea was involuntary and ineffective assistance of counsel. We disagree and affirm the decision of the circuit court.

FACTS

¶ 2. On January 14, 2000, Tyrone Garner entered pleas of guilty to one charge of burglary of an inhabited dwelling and one charge of forcible rape. The written plea agreement indicated that, in exchange for the plea, the State would forsake its right to seek a life imprisonment sentence on the rape charge and recommend that whatever sentences were imposed should run concurrently. After questioning Garner, the circuit court accepted the pleas and sentenced Garner to twenty-five years’ imprisonment on the burglary charge and thirty-nine years for the rape.

¶ 3. Garner filed a petition for post-conviction relief in August 2002 on the grounds previously stated. The trial court found Garner’s plea had been voluntarily made and no evidence supported the claim of ineffective assistance. On appeal, Garner presses these same two issues as well as attempts to introduce a third never raised before the lower court.

1. Involuntary plea

¶ 4. Garner claims that he was ignorant of several important factors before entering his guilty plea. Specifically, he claims he was misled as to the probable sentencing, his sentences are improper because they amount to a life sentence, and he was never advised that a guilty plea waived several constitutional rights. The second claim we will address separately.

¶ 5. In order for a guilty plea to pass constitutional muster, it must represent a knowing, intelligent and voluntary waiver of certain constitutional rights by the defendant. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The defendant must know of his right to confront his accusers, right to a jury trial, and right against compulsory self-incrimination. Id. at 243, 89 S.Ct. 1709. An on-the-record determination by the trial court is one method of establishing that the defendant’s waiver of his rights was constitutionally valid. Chunn v. State, 669 So.2d 29, 32 (Miss.1996).

¶ 6. In this case, the plea transcript shows the trial court thoroughly explained each of the rights at issue. What the trial court did not do was end each of these explanations with the explicit question as to whether Garner chose to waive that right. While that is certainly the preferred method, the record did otherwise capture Garner’s acknowledgment of waiver. The transcript includes the court’s questioning about Garner’s understanding of the written plea agreement signed by Garner on every page. The court ascertained that Garner could read adequately, that he did in fact read the document, that he understood the contents and had an opportunity to discuss the agreement with counsel. The agreement explicitly notes the rights to be waived and the agreement to waive them. The plea agreement is a part of the record and contradicts Garner’s contention of ignorance. This assignment of error is without merit.

2. Excessive sentence

¶ 7. Throughout his brief to this court, Garner argues his sentence was improper for a variety of reasons. The heart of the argument, however, is that the aggregation of the two sentences for a total of sixty-four years exceeds Garner’s actuarial life span and thereby constitutes an improperly imposed life sentence. Garner never raised this argument in the trial court and we are therefore not required to address it for the first time on appeal. Patterson v. State, 594 So.2d 606, 609 (Miss.1992). However, because the question has certain constitutional dimensions, we will discuss it.

¶ 8. As an habitual offender, the court was required to impose the maximum sentence on the burglary charge. Miss.Code Ann. § 99-19-81 (Rev.2000). In the case of burglary of an inhabited dwelling, the maximum penalty is twenty-five years’ imprisonment. Miss.Code Ann. § 97-17-23 (Rev.2000).

¶ 9. Statute provides for life imprisonment for those found guilty of forcible rape if prescribed by a jury. Miss.Code Ann. § 97-3-65(3)(a) (Rev.2000). If the jury fails to affix the punishment of life, the matter is left to the court to affix a penalty at its discretion. Id. This discretion, however, is not absolute. When the authority to impose a life sentence lies with the jury alone, the court’s discretion is limited to a term of something less than life. Erwin v. State, 557 So.2d 799, 801 (Miss.1990).

¶ 10. Garner does not claim that the sentences individually exceed statutory boundaries but rather that, because the court found his life expectancy was 39.2 years, the total number of years he must serve equates to a life sentence the trial court was without authority to render. This argument has previously been addressed by the supreme court. Each of the sentences imposed upon Garner stand alone and are made without respect to each other. Id. at 803. The sentence of thirty-nine years is something less than Garner’s projected life span. That his sentences are to run consecutively rather than concurrently is one of the many hazards of committing multiple crimes.

3. Ineffective assistance of counsel

¶ 11. Finally, Garner argues his attorney failed to render professionally competent representation. He argues the following: counsel misled him into believing he would receive a sentence less than life; counsel failed to investigate; failed to object to the sentences; failed to object to an illegally obtained confession; failed to put on evidence to contradict the State’s evidence of habitual offender status; and unduly influenced him to plead guilty.

¶ 12. We review claims of ineffective assistance of counsel based upon a two-part inquiry: (1) whether counsel’s performance was deficient; and (2) whether that deficiency caused prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance is evaluated by whether counsel’s advice falls outside objective parameters of professional reasonableness. Id. at 687-88, 104 S.Ct. 2052. Prejudice is measured by whether the result of the proceedings would have been different but for counsel’s deficiency. Cole v. State, 666 So.2d 767, 775 (Miss.1995). ¶ 13.

¶ 13 We have already discussed the validity of the sentences imposed. With respect to the claim that counsel failed to investigate, Garner provides no evidence or even assertions of what exactly counsel should have investigated or how such an investigation would have impacted his case favorably. This does not meet the requirement that a petitioner allege with specificity and detail the claimed ineffective assistance and how such actions, or inactions, prejudiced him. Brooks v. State, 573 So.2d 1350, 1353 (Miss.1990).

¶ 14. Garner also argues that counsel failed to object to the use of an illegally obtained confession. Garner asserts he was never advised of his Miranda rights before giving the statement. We make no finding as to whether the confession given by Garner was illegally obtained. Even were this true, however, Garner waived the right to complain of this error by standing in open court and proclaiming his guilt. Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). He cannot thereafter raise independent claims of constitutional violations which occurred prior to the entry of his guilty plea. Id.

¶ 15. Garner claims defense counsel failed to put on evidence to challenge the State’s evidence of habitual offender status. Again, Garner provides no evidence of any form to suggest that the State’s evidence was invalid or what defense counsel should have done differently to challenge the record of Garner’s prior convictions. Garner had the opportunity at the plea hearing or upon receipt of the indictment to complain that the record contained errors but did not do so.

¶ 16. Finally, Garner claims he was unduly influenced by counsel to enter a plea of guilty. Although he is rather unclear on this point, Garner appears to be saying that he was unduly influenced because defense counsel promised he would receive a sentence of less than life imprisonment if he pled guilty. Again, Garner provides no evidence or allegations of undue influence, coercion, threats or promises of leniency. It is the duty of the defense counsel to offer opinions and act as legal advisor to the client. Bolton v. State, 831 So.2d 1184, 1189 (¶ 17) (Miss.Ct.App.2002). In the absence of any coercive behavior, counsel did not act incorrectly for offering an opinion which, in light of the State’s agreement to forgo life imprisonment, was based on more than reasonable probability.

¶ 17. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT DISMISSING PETITION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

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


author: LEE, J.,

text:
    Carl Gene BROWN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00967-COA.
    Court of Appeals of Mississippi.
    Jan. 27, 2004.

      Wesley Thomas Evans, Ridgeland, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. In November 1998, Carl Brown was indicted by a Humphreys County grand jury of aggravated assault. The trial was held in October 2000. At the close of the State’s case, Brown moved for a directed verdict, but the motion was denied. Brown was subsequently convicted of aggravated assault and was sentenced to ten years in prison with two years suspended, plus ordered to pay $17,000 in restitution to the victim. Brown filed a motion for judgment notwithstanding the verdict or a new trial and a motion to modify sentence, both of which were denied. He now appeals to this Court arguing that the trial court erred in failing to grant him a directed verdict, and in admitting evidence of a prior act of violence to show Brown’s bad character. We review these two issues and find no merit; thus, we affirm.

FACTS

¶ 2. On or about April 12, 1998, in Belzo-ni, Carl Brown and two other men approached Clifton Robertson as he worked on a car outside of his mother-in-law’s home. Armed with a baseball bat, the men attacked Robertson and began hitting him, breaking his leg before Robertson’s wife told the men she had called the police. The men left and she took her husband to the hospital where he remained for two weeks.

¶ 3. The cause of the attack is unclear, but testimony revealed that prior to the incident Robertson and Brown had a dispute. In his defense, Brown claims he did not use the bat, but rather tried to stop the other men from attacking Robertson.

DISCUSSION

I. DID THE TRIAL COURT ERR IN NOT GRANTING THE APPELLANT’S MOTION FOR DIRECTED VERDICT AT THE CLOSE OF THE STATE’S CASE?

¶ 4. With his first issue, Brown argues the trial court improperly denied his motion for directed verdict at the close of the State’s case. A motion for directed verdict challenges the sufficiency of the evidence, and that standard of review is:

In appeals from an overruled motion for JNOV, the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence ... consistent with guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Matters regarding the weight and credibility of the evidence are to be resolved by the jury. We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Edwards v. State, 797 So.2d 1049(¶ 14) (Miss.Ct.App.2001).

¶ 5. Brown argues that the prosecution failed to prove that he committed aggravated assault against Robertson. Specifically, Brown points out that no witness testified to seeing Brown with a bat or another object, Robertson himself testified that Brown did not strike him but that Roosevelt Harris was the actual striker, and no motive for the attack was established.

¶ 6. Section 97-1-8 (Supp.2003) of the Mississippi Code Annotated states, “Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not.” The State points out that Brown was an accessory to the crime, and an accessory is indicted as a principal, just as Brown was indicted.

What renders one an accessory before the fact is well settled. In Crawford v. State, 133 Miss. 147, 97 So. 534 (1923), this Court ruled that to aid and abet in the commission of a felony, one must “do something that will incite, encourage, or assist the actual perpetrator in the commission of the crime.”

Malone v. State, 486 So.2d 360, 363 (Miss.1986). According to the Crawford standard enunciated in Malone, Brown qualified as an accessory before the fact. Robertson testified that as he was outside of his mother-in-law’s home working on his car, Brown and some other men drove up and cornered him. When one of. the men carrying a baseball bat went towards Robertson’s brother-in-law, Brown redirected him towards Robertson. Also, Robertson testified that after the attack when the men were leaving, Roosevelt said to Brown, “You can pay me now.” When questioned about what may have provoked the attack, Robertson explained that a few weeks before he and Brown had fought over Brown’s alleged disrespect for Robertson’s wife. Viewing the evidence in a light favorable to the State and giving the prosecution the benefit of all favorable inferences, we find the court did not err in denying the motion for directed verdict.

1Í 7. Brown also argues that the prosecution failed to prove that the baseball bat used in the attack was a deadly weapon. With the bat, the assailant caused a compound fracture of Robertson’s leg. Robertson testified that the attacker swung the bat at his head; but for Robertson’s efforts to defend himself, the bat certainly could have done more damage, even to the point of causing his death. We find no merit to this point,

II. DID THE TRIAL COURT ERR IN ADMITTING EVIDENCE OF OTHER OF APPELLANT’S BAD ACTS?

¶ 8. Brown argues next that the trial court erred in admitting evidence of his prior bad acts, specifically an altercation between himself and the victim, Chi-ton Robertson. Our standard of review concerning the admissibility of evidence is abuse of discretion, and absent such abuse, we will not reverse the trial court’s ruling. Gray v. State, 846 So.2d 260(¶ 3) (Miss.Ct.App.2002).

¶ 9. Rule 404 of the Mississippi Rules of Evidence states:

Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: ... (1) Character of Accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same; ... (b) Other Crimes, Wrongs, or Acts. 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.

¶ 10. Brown claims that the trial court should not have allowed evidence to be presented concerning a fight between himself and Robertson weeks before the assault because it inferred that Brown had a bad character, and this evidence could inflame the jury. The fight, which occurred two or three weeks before the assault, was at Robertson’s girlfriend’s mother’s home where Robertson lived with his girlfriend, and where Brown lived also. Robertson accused Brown of indecency and disrespect for other females in the house, including two young girls, as he would walk around the house in just a towel. A few nights later, Robertson claims Brown came in and involved himself in an argument between Robertson and his future mother-in-law, and Robertson told Brown that if he had something to say, he should be a man and say it himself. Brown then lunged at Robertson and landed on top of him on the couch where the two began hitting each other. Robertson testified that he moved out of the house after that.

¶ 11. Brown cites the balancing test of Mississippi Rules of Evidence 403 which states that otherwise 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.” This evidence was permitted to show motive for the later attack, which is an exception under Mississippi Rules of Evidence 404(b). We find the judge did not abuse his discretion as the probative value of showing the motive for Brown’s subsequent attack on Robertson did outweigh any possible prejudice. There is no merit to this issue.

¶ 12. THE JUDGMENT OF THE HUMPHREYS COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TWO YEARS SUSPENDED AND ORDER TO PAY $17,000 IN RESTITUTION TO THE VICTIM, IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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

      . At the time of trial, she and Brown were married.