text:
    Rachel L. MOORE v. STATE of Mississippi.
    No. 2002-KA-00526-SCT.
    Supreme Court of Mississippi.
    Nov. 13, 2003.

      Kenneth Jermaine Grigsby, James W. Craig, Jackson, attorneys for appellant.
    Office of the Attorney General by Jeffery A. Klingfuss, attorneys for appellee.

      Before SMITH, P.J., CARLSON and GRAVES, JJ.
   GRAVES, Justice,

for the court.

¶ 1. This appeal arises from a jury verdict in the Circuit Court of Lee County. Rachel L. Moore was convicted of the murder of her husband, Jason Moore, and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved by the conviction and sentence, Rachel Moore submits five issues on appeal:

I. Whether, in light of Wade v. State, the trial court committed reversible error by failing to direct a verdict in favor of Moore on the issue of murder based on the theory of “imperfect self defense.”
II. Whether the trial court erred in excluding portions of the 911 tape.
III. Whether the trial court erred by failing to grant Moore’s intoxication instruction.
IV. Whether the jury’s decision to convict the Moore of murder was against the overwhelming weight of the evidence.
V. Whether the trial court’s admittance of improper character evidence represents reversible error.

FACTS

¶ 2. Rachel and Jason Moore were married in September 2000. The marriage was marked by abusive episodes that caused Rachel Moore to leave the home on several occasions. On or about May 18, 2001, Rachel Moore drove her husband, Jason Moore, to the house of his friend Ricky Hancock. After spending some time at Hancock’s house with her husband, Rachel left to take her daughter to her aunt’s house. Rachel told Jason that she would return to Hancock’s house to pick him up after leaving her aunt’s house. After dropping her daughter off, Rachel noticed the “check engine soon” light on inside her car. She then took the car to the home of her ex-husband, Steve Walden, so that he could investigate any potential mechanical problems with her vehicle. While waiting for Walden to complete checking her vehicle, Rachel began drinking.

¶ 3. After leaving Walden’s residence, Rachel returned to Hancock’s house to pick up her husband, however, her husband was no longer at Hancock’s house. Rachel phoned her mother-in-law to inquire as to the whereabouts of her husband and was informed by her mother-in-law that Jason was at her residence, lying on the bathroom floor, passed out from intoxication. Rachel drove to her mother-in-law’s home to retrieve her husband. After going into the bathroom and assisting Jason from the floor, Rachel and Jason left the residence. During the trip home an argument ensued over Rachel visiting her ex-husband’s home, and Jason began physically abusing Rachel, causing her to pull the car over to the side of the road. After the altercation ended, Rachel drove to Curtis Davidson’s trailer, where Rachel and Jason were living at the time. Upon arriving at the trailer, Rachel told Jason “I hope you know you’re fixing to die.” Immediately thereafter, Jason ran into the woods beside the trailer, and Rachel went inside the trailer. Once inside, Rachel retrieved a loaded, .410 shotgun, went back outside, and fired one shot into the air. Rachel then went back inside the trailer, reloaded the shotgun, locked the door, and fell asleep. Approximately forty-five minutes later, Rachel heard Jason yelling for her to come outside and “talk.” Rachel went outside and stood on the porch. While outside, Rachel pleaded for Jason to leave the premises. Jason began walking toward Rachel, and she warned him to stop. Jason said that he was sorry and that he would not hit her anymore. Rachel told Jason that she wanted him to leave, and he asked if she would take him somewhere. Rachel stated that she “wasn’t taking him nowhere.” Jason then asked Rachel to wake Davidson so that Davidson might take him somewhere. Rachel told Jason that she would not wake Davidson and that he should leave. Jason kept moving toward Rachel, and she continued to ask him to stop. Jason failed to stop, and Rachel fired one shot that struck Jason and ultimately led to his death.

¶ 4. Rachel Moore was arrested for the murder of her husband. Moore was indicted and tried in the Lee County Circuit Court. After hearing the evidence presented, the jury found Rachel Moore guilty of murder. The same day, the court sentenced Moore to life imprisonment in accordance with Miss.Code Ann. § 97-3-21 (Rev.2000).

¶ 5. Moore then filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, and the circuit court denied the motion. Moore then timely appealed.

DISCUSSION

I. WHETHER IN LIGHT OF WADE v. STATE, THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO DIRECT A VERDICT IN FAVOR OF MOORE ON THE ISSUE OF MURDER BASED ON THE THEORY OF “IMPERFECT SELF-DEFENSE.”

¶ 6. Moore argues that the trial court was under a duty to direct a verdict in her favor based on the theory of “imperfect self-defense” as set out in Wade v. State, 748 So.2d 771 (Miss.1999). In Wade, the victim, Ralph Simpson, and the defendant, Deanna Wade, were joint owners of a night club, and also involved in a personal relationship which was often marked by physical abuse and violence. Id. at 773. In commenting on this fact, this Court noted that “Simpson had a prolonged history of violence towards Wade, especially when Wade was highly intoxicated, as he was on the night of the incident. The beatings he administered were too numerous to count....” Id. at 776.

¶ 7. On October 6, 1996, Wade and Simpson became engaged in a severe physical altercation with each other. Id. at 773. The evidence at trial revealed “Simpson first beat Wade’s head against a table top with enough force to knock a sign off the wall.” At trial, witnesses noted that “Simpson next pulled Wade by the hair and beat her head against the edge of a pool table.” After the fight ended, Wade immediately went to the house she and Simpson shared, which was located directly next door to the night club, and retrieved a .38 caliber revolver. Wade had only absented herself for a short time. Witness Coy Flanagan, in explaining how short the time frame was stated, “and then I turned him loose and I turned around and there she was.” Wade remarked “you ain’t gonna hit me no more” as Simpson, who was known to carry a gun in the back of his pants, continuously moved toward her. Wade fired a shot and Simpson fell to the ground, dying shortly thereafter. Wade was convicted of murder and sentenced to life in prison.

¶ 8. When deciding this case, the Court of Appeals stated:

While Wade was undoubtedly mad, it is also clear that her ill will was engendered by the earlier unlawful acts of Simpson and what appeared to be a renewed attack. This clearly was a killing in the heat of passion and arguably a case of imperfect self defense, and as such, manslaughter was the appropriate verdict.

Wade v. State, 724 So.2d 1007, 1011 (Miss.Ct.App.1998). This Court found that the “particular facts [in Wade ], coupled with other important facts set out [therein] relating to the prior beatings and Wade’s unique situation, [were] insufficient to support a finding of malicious intent.” 748 So.2d at 774.

¶ 9. This Court has recognized the theory of “imperfect self-defense” whereby “an intentional killing may be considered manslaughter if done without malice but under a bona fide (but unfounded) belief that it was necessary to prevent great bodily harm.” Id. at 775. (citing Lanier v. State, 684 So.2d 93, 97 (Miss.1996)). Moore asserts that, in light of Wade, the trial court erred by failing to grant her motion for directed verdict on the issue of murder based on the theory of “imperfect self-defense” or in the alternative, a new trial.

¶ 10. This Court employs the same standard of review for denials of motions for directed verdict and judgment notwithstanding the verdict and a request for peremptory instruction. Coleman v. State, 697 So.2d 777, 787 (Miss.1997). Each challenges the legal sufficiency of the evidence presented at trial. McClain v. State, 625 So.2d 774, 778 (Miss.1993). This Court has stated:

Under this standard, this Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgement might have reached different conclusions, affirmance is required.

Coleman, 697 So.2d at 787-88 (emphasis added) (quoting Sperry-New Holland v. Prestage, 617 So.2d 248, 252 (Miss.1993) (internal citations omitted)). See also Edwards v. State, 800 So.2d 454, 463 (Miss.2001).

¶ 11. The present case is not one of “imperfect self-defense.” The evidence shows that Moore picked the victim up from his mother’s home, knowing that he was intoxicated and knowing of his propensity for violence when intoxicated. She then drove to Curtis Davidson’s trailer, where she and the victim were living at the time. After an abusive altercation in the vehicle and upon arrival at the trailer, Moore stated to the victim “I hope you know you’re fixing to die.” At which time she entered the trailer and the victim ran into the woods. Moore then armed herself with a loaded, .410 shotgun, went outside and gave a “warning shot.” She then reentered the trailer, reloaded the shotgun, placed extra shotgun shells in her pocket, attempted to secure the premises and waited some forty to forty-five minutes before exiting the trailer to “talk” to the victim.

¶ 12. During this forty-five minute interval, Moore had access to a working telephone and failed to call anyone for help. Moore failed to wake Curtis Davidson, who was sleeping in the trailer, and request that he come to her aid. Moore had the keys to her ear and failed to leave the premises. In fact, according to Moore’s own testimony, she “dozed off’ during the forty-five minute interval.

¶ 13. The case at bar differs from the Wade case in several important aspects. First, Wade attempted to call for help prior to shooting the victim but the victim had knocked the telephone off of the wall. In the case at bar, Rachel Moore, who had access to a working telephone and had approximately forty-five minutes to call for help, failed to call anyone. Second, Wade shot the victim almost immediately after the abuse occurred. Rachel Moore shot her victim approximately forty-five minutes after the abuse occurred. Third, Wade could not leave the premises upon which the incident occurred because the victim had Wade’s car keys in his pocket. Rachel Moore had the keys to her car and failed to leave or even attempt to leave the premises.

¶ 14. When a defendant has been found guilty by a jury, appellate court authority is limited, and the verdict should not be overturned so long as there is “credible evidence in the record from which the jury could have found or reasonably inferred each element of the offense.” Davis v. State, 586 So.2d 817, 819 (Miss.1991). The reviewing court is to examine all of the evidence in a light most favorable to the verdict. Washington v. State, 800 So.2d 1140, 1144 (Miss.2001). In the case at bar, the jury was instructed on murder, manslaughter and self-defense. The question of self-defense, in conjunction with Moore’s full testimony, exhibits and facts were heard and considered by the jury. The record contains credible evidence from which the jury could have found or reasonably inferred each element of the offense of murder. Therefore, the circuit court did not err in denying Moore’s JNOV motion.

II. WHETHER THE TRIAL COURT ERRED IN EXCLUDING PORTIONS OF THE 911 TAPE.

¶ 15. After shooting the victim, Rachel Moore entered the trailer and woke the owner of the trailer, Curtis Davidson. Davidson got dressed and walked outside to check on the victim. After checking on the victim, Davidson told Rachel to go inside and call 911. Rachel then went back into the trailer and called 911. After a brief conversation with the 911 operator, she handed the telephone to Davidson. During his conversation with the 911 operator, Davidson repeated or commented on what Rachel Moore was doing or saying.

¶ 16. The trial court admitted portions of the 911 tape that contained statements made directly by Rachel Moore but excluded portions of the tape that contained the dialogue of Davidson commenting on what happened while he was asleep or repeating statements made to him by Moore.

¶ 17. Moore argues that statements she made while Davidson was on the telephone with the 911 operator, which are somewhat audible in the background of the tape, should have been admitted into evidence as evidence of her state of mind just after the shooting. This argument is without merit. Certain portions of the 911 tape that were heard by the jury clearly evidence Moore’s state of mind immediately following the incident. Thus, Moore was not deprived of the entire 911 tape, only those portions of the tape which contained hearsay that could not be redacted.

¶ 18. Moore next argues that statements made by Davidson to the 911 operator were evidence of present sense impressions and should have been admitted as such. A present sense impression is: “a statement describing or explaining an event or condition made while the declar-ant was perceiving the event or condition or immediately thereafter.” M.R.E. 803(1) (emphasis added) Davidson’s statements to the 911 operator were hearsay and do not fall within the present sense exception to the rule. Davidson’s statements were not made while he was perceiving the event or immediately thereafter. In fact, Davidson stated that he was asleep at the time the event took place and thus could not have described the event to the 911 operator without the aid of Moore.

¶ 19. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). Hearsay evidence is inadmissible unless it falls within one of the known exceptions. Clark v. State, 693 So.2d 927, 932 (Miss.1997). Consequently, Davidson’s statement to the 911 operator was hearsay since it was not uttered by the defendant. Further, Moore was not prejudiced by the excising of the 911 tape as she, as well as Davidson, were able to testify at trial.

¶ 20. We find that there was no prejudice and the trial court was correct to redact and excise the 911 tape of hearsay statements made by Davidson.

III. WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT MOORE’S INTOXICATION INSTRUCTION.

¶ 21. Moore asserts that she was entitled to a diminished capacity instruction due to her intoxication. The applicable standard of review on a question of denial of a proffered instruction is: “[i]n determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Holloway v. State, 809 So.2d 598, 608 (Miss.2000).

¶ 22. Moore testified that, on the night of the incident, she consumed no more than four and a half beers in a span of approximately four and a half hours. This was the only evidence put forth at trial regarding her intoxication. While the record reflects that Moore testified that she had been drinking on the night of the incident, it certainly did not appear to be part of her defense.

¶ 23. An accused is not entitled to an instruction based upon a defense not authorized by law, and this Court has expressly held that voluntary intoxication is not a defense to murder. Greenlee v. State, 725 So.2d 816, 822-23 (Miss.1998); O’Bryant v. State, 530 So.2d 129, 133 (Miss.1988).

¶ 24. We find that the trial court did not err by refusing to grant the diminished capacity instruction.

IV. WHETHER THE JURY’S DECISION TO CONVICT MOORE OF MURDER WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 25. Moore asserts that the overwhelming weight of the evidence strongly favors judgment notwithstanding the verdict.

¶ 26. “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the trial court abused its discretion in failing to grant a new trial.” Nicolaou v. State, 612 So.2d 1080, 1083 (Miss.1992). “Any factual disputes are properly resolved by the jury and do not mandate a new trial.” McNeal v. State, 617 So.2d 999, 1009 (Miss.1993).

¶27. Looking to the record there is ample evidence to support the verdict of murder. Moore was beaten by the victim. After arriving at the trailer where they were living at the time, Moore told the victim “I hope you know you’re fixing to die.” She then went inside the trailer and armed herself with a .410 shotgun, which she fired once as a “warning” to the victim and fired again some forty-five minutes later fatally wounding the victim. Viewing as trae the evidence which supports the jury’s finding of murder, it cannot be said that the verdict was so contrary to the overwhelming weight of the evidence that allowing it to stand would constitute “an unconscionable injustice.”

¶ 28. We find that the trial court did not abuse its discretion in denying Moore’s motion and that this argument is without merit.

V. WHETHER THE TRIAL COURT’S ADMITTANCE OF IMPROPER CHARACTER EVIDENCE REPRESENTS REVERSIBLE ERROR.

¶29. The victim’s sister, Priscilla Moore, was allowed to testify at trial regarding Rachel Moore’s demeanor at the time she picked the victim up from her mother-in-law’s home. Priscilla stated that upon arriving at her mother’s home Rachel stated: “Priscilla, don’t f — -ing start with me. I just come to pick my f — ■ ing husband up.” At another point in the trial, while discussing the driver of a nearby vehicle, Priscilla asked “ ‘Rachel, who’s that man in the truck?’ And she said ‘Oh forget that motherf — ker.’ And I said You knew him?’ And she said T ain’t f— ing talking about him right now.’ ”

¶ 30. Rachel Moore argues that the introduction of this testimony amounted to improper character evidence and should have been excluded under M.R.E. 404(a) & 404(b). “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 .... ” M.R.E 404(a) “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.” M.R.E. 404(b).

¶ 31. Priscilla Moore’s testimony is not character evidence because, it is not testimony of a character trait offered to prove conformity therewith, nor is it testimony regarding “other crimes, wrongs or acts.” Rachel Moore’s propensity to use street vernacular in describing situations may also be heard on the 911 tape, to which the defense made no objection. Further, the statement that she gave to police investigator Steve White on the night of the incident is replete with the same type of language offered by Priscilla Moore. Specifically, in her statement to Steve White, Rachel Moore stated that just prior to shooting the victim she told him: “he wasn’t nothing but a chicken f — ing coward ... come out and God d-mn pay your f — ing dues ...” This statement was heard by the jury, again with no objection offered by the defense.

¶ 32. We find that the testimony by Priscilla Moore was not improper character evidence and that this argument is without merit.

CONCLUSION

¶ 33. Finding no reversible error, we affirm the trial court’s judgment.

¶ 34. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, EASLEY AND CARLSON JJ„ CONCUR. MeRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: WALLER, Justice,

license: Public Domain

text:
    DEPARTMENT OF HUMAN SERVICES, STATE OF MISSISSIPPI v. Ronald MARSHALL.
    No. 2001-CT-01845-SCT.
    Supreme Court of Mississippi.
    Nov. 13, 2003.
    Darrell Baughn, Deborah Darden Kennedy, attorneys for appellant.
    Lynn Hughes Sorey, Raleigh, Stanley Alex Sorey, attorneys for appellee.
   ON WRIT OF CERTIORARI

WALLER, Justice,

for the Court

¶ 1. We granted the Department of Human Services’ petition for writ of certiorari to address the issue of whether a son’s conduct was such a clear and extreme abandonment of the parent-child relationship that the father was entitled to termination of his child support obligations. The Court of Appeals affirmed the chancellor’s (1) award of past due child support against the father and (2) termination of the father’s future duty to provide child support because there was a breakdown in the parent-child relationship caused in part by the son’s mother and grandmother. Miss. Dep’t of Human Servs. v. Marshall, 856 So.2d 441 (Miss.App. 2003). After consideration, we affirm in part and reverse in part the judgments of the Court of Appeals and the chancery court and remand to the chancery court for further proceedings consistent with this opinion.

FACTS

¶ 2. This statement is taken from the opinion of the Court of Appeals in this case:

Ronald Marshall (Ron) and Anita Dawn Collins (Dawn) were married in Alabama on August 20, 1984. One child was born to the marriage on June 8, 1986, Ronald Marshall, Jr. (Ronnie). Ron and Dawn separated after four years of marriage while the couple resided in Baltimore, Maryland. Dawn and Ronnie returned to Alabama, and Ron relocated to California. On or about October 27, 1989, Ron filed a petition for divorce from Dawn in Los Angeles County, California, and in the divorce petition, it was noted that child support was to be awarded to Dawn. However, the final judgment of divorce made no mention of Ronnie or the matters of child support, custody, and visitation.
On September 11, 1990, before the divorce was finalized, Dawn, who was now living in Smith County, Mississippi with her mother, Sybol Anding a/k/a Johnnie Anding, signed an affidavit giving Sybol temporary custody of Ronnie. Dawn affirmed that she was giving Sybol temporary custody of Ronnie until she could “more adequately and properly” provide for Ronnie. Sybol sought the assistance of DHS in acquiring child support for Ronnie.
As a result of Sybol’s request for assistance, the State of Mississippi, by and through DHS on May 12, 1993, initiated a Uniform Reciprocal Enforcement and Support Act (URESA) request that California establish a child support order requiring Ron to provide medical coverage for Ronnie and pay child support to Sybol for Ronnie. On June 12, 1996, a California court ordered Ron to pay $622 monthly in child support. The boilerplate order stated that the matters were uncontested because Ron, the defendant, made no appearance in the court.
On May 25, 1999, Ron filed, in the Chancery Court of Smith County, Mississippi, a motion for modification of child custody and for modification of child support, along with a petition to reconsider child support. As a result of these filings, the chancery court appointed a guardian ad litem for Ronnie.
In the motion and petition, Ron stated that he was a resident of Virginia and that he was seeking modification of the child custody order and requesting that he receive primary physical custody of Ronnie. Ron also sought to have child support arrearage reduced and/or terminated due to the fact that he was unable to locate, call, or visit with Ronnie.
Upon the hearing of Ron’s motion and petition, the court found that Ron had a duty to support Ronnie. On August 19, 1999, a temporary order was filed granting Sybol temporary custody of Ronnie. The chancellor found that Ron did not know Ronnie’s physical location until March 1998. The temporary order also gave Ron reasonable visitation with Ronnie and set the amount for child support at $583 per month. The issue of arrearage was reserved by the chancellor for a later determination.
Ron visited Ronnie on two occasions after re-establishing contact with his son. The first visit was a one-day visit in the summer of 1999, and Ron described it as a great time. However, the second visit, in the summer of 2000, was much different. That visit lasted a little over two days and was described by Ron as not so great.
Due to the disdain Ronnie exhibited toward Ron during the second visit, Ron filed a motion for psychological evaluation, citing the reason for such being Ronnie’s “behavior exhibited during the scheduled visitation with his father.” The court entered an order for psychological evaluation.
After the evaluation was completed, the chancellor held a hearing in which he determined a substantial and material change in circumstances had occurred between Ron and Ronnie and “as a result of said material change in circumstances there [had] been a break down [sic] in the relationship between” them. The chancellor went on to state “[t]his break down [sic] was caused partially as a result of the father moving off and not having contact with his child, even though this court understands that he made attempts to find the child, but also because of the actions of the mother and grandmother with this child.” Because of this breakdown, the chancellor suspended all visitation and all child support obligations of Ron. As to the issue of back child support, the court stated, “the Department of Human Services of Smith County, MS, shall enter into an order with Mr. Marshall to collect any child support payments that are due for the benefit of the minor child.”
As already observed, DHS has appealed the suspension of the child support payments, and Ron has cross-appealed the order of child support arrearage and child custody. There is no evidence in the record of DHS entering into an order as mandated by the court regarding the alleged child support arrearage. The chancellor later entered a judgment of child support arrearage, ordering Ron to pay the amount of $22,000.

Id. at 443-44. The Court of Appeals affirmed on direct and cross-appeal. It found that the chancellor did not err in finding the relationship between Ronald and Ronnie had deteriorated to the extent that Ronald should not have to pay child support for the present time. Id. at (¶ 17). It further found that Ronnie should not be penalized for the conduct of his parents, and it affirmed the chancellor’s award of past due child support against Ronald. Id. at ¶ 20.

STANDARD OF REVIEW

¶ 3. This Court employs a limited standard of review when reviewing a chancellor’s decision. Miss. Dep’t of Human Servs. v. Shelby, 802 So.2d 89, 92 (Miss.2001). We will not disturb a chancellor’s findings unless the court was manifestly wrong, abused its discretion or applied an erroneous legal standard. Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997).

DISCUSSION

WHETHER THE CHANCELLOR ERRED IN APPLYING THE CALDWELL TEST?

¶ 4. The Department argues that Ronnie has done nothing under the authority of Caldwell v. Caldwell, 579 So.2d 543 (Miss.1991), to forfeit his right to child support. In Caldwell, we stated a child that has a strained relationship with the non-custodial parent should not be in danger of having his support reduced. Id. “The amount of money that the non custodial parent is required to pay for the support of his minor children should not be determined by the amount of love the children show toward that parent.” Id. at 548, quoting Holston v. Holston 58 Md.App. 308, 473 A.2d 459, 463 (1984). However, a minor child as young as fifteen years old could forfeit his support from the non-custodial parent through his actions toward that parent, but those actions must be clear and extreme. Caldwell, 579 So.2d at 548.

¶ 5. In Caldwell, the father argued that his fifteen-year-old son had abandoned the father-son relationship and disliked his father so severely that he was no longer entitled to child support. Id. at 548. The child admitted that he felt hostility toward his father but he was attending counseling and trying to improve the relationship. Id. This Court found that this was not the type of clear and extreme conduct that would cause a child to forfeit his support. Id. We also noted that a child could be expected to harbor some bitterness toward his father when the father tries to sell the son’s home and attempts to terminate all support. Id. at 550.

¶ 6. The Court of Appeals has found a child’s conduct sufficiently clear and extreme to forfeit her support from her father in Roberts v. Brown, 805 So.2d 649 (Miss.Ct.App.2002). In Roberts, the court held that the daughter abandoned the parent-child relationship when she falsely accused her father of raping her and refused to visit him. The father was acquitted of the rape charge. Id. at 651. The daughter testified at the modification hearing that she did not love her father, did not want to visit or communicate with him, would not visit him, and did not desire to have a personal relationship with him. Id. at 650. The Court of Appeals found that the child’s abandonment of the relationship coupled with the rape accusation was the type of clear and extreme conduct envisioned by Caldwell. Id. at 653.

¶ 7. In the present case, the guardian ad litem appointed for Ronnie testified that Ronnie did not know his father and was reluctant to get to know him because he was unfamiliar with him. The guardian ad litem also stated that Ronnie might have felt that he was being disloyal to his grandmother when he spent time with his father and that he might have been afraid that his father would take him away from the only parent he has ever known. The guardian ad litem also testified that it was in Ronnie’s best interest to develop a meaningful relationship with his father.

¶ 8. Ronnie’s conduct toward his father does not rise to the level of conduct required to forfeit his support. Ronald visited Ronnie twice after reestablishing contact with him. On the second visit, Ronnie would not converse with his father and when he did, he stated that he wanted to go home. One bad visit between a son that has seen his father twice after many years apart does not rise to the level of clear and extreme conduct envisioned by Caldwell. It is only reasonable that Ronnie would harbor some resentment against his father. Ronnie’s conduct is similar to the child’s conduct in Caldioell and is clearly not as extreme as the child’s conduct in Roberts.

CONCLUSION

¶ 9. To allow a father to terminate his obligations to his child after one unpleasant visit is rewarding the father for not taking an active role in his child’s life. As we noted in Caldwell, it is to be expected that there will be some unpleasantness coming from a child who has had no relationship with his father and when the father has been behind in his child support payments. The chancellor erred in finding Ronnie’s conduct was sufficiently clear and extreme to forfeit his right to support from Ronald. Likewise, the Court of Appeals erred in affirming the chancellor’s findings and judgment terminating Ronald’s child support obligations. Therefore, we reverse the judgments of the Court of Appeals and the chancellor terminating Ronald’s child support obligation, and we remand this case to the chancellor for further proceedings consistent with this opinion.

¶ 10. The Court of Appeals also affirmed the chancellor’s judgment against Ronald for past due child support. We affirm the Court of Appeals in finding that the chancellor was not manifestly in error in awarding child support arrearage.

¶11. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

PITTMAN, C.J., SMITH, P.J., COBB, EASLEY AND CARLSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.


author: BRIDGES, J.,

text:
    Raymond FAYE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01906-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2003.
    Raymond Faye (pro se), attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Raymond Faye pled guilty to felony robbery and was sentenced to fifteen years. On or about March 12, 2002, he filed a petition in post-conviction relief seeking to set aside his conviction and sentence for robbery. On September 27, 2002, he subsequently filed a “Motion to Amend Post-Conviction or in the Alternative Hold Post-Conviction in Abeyance.” Faye asserted in this motion that he wished to amend his prior petition to include additional constitutional violations. Faye did not specify what these additional violations were. On October 7, 2002, his motion for post-conviction collateral relief was dismissed by the Circuit Court of Pearl River County. On October 30, 2002, Faye filed a motion to alter or amend judgment in an attempt to have the circuit court vacate its order denying relief on the original motion. He also sought to file an amended motion again wanting to include unspecified constitutional violations. The court later dismissed the motion to amend on October 30, 2002. From this decision, Faye appeals to this Court.

STATEMENT OF THE ISSUE

DID THE COURT ERR WHEN IT REFUSED TO VACATE ITS ORDER DENYING RELIEF ON FAYE’S MOTION IN POST-CONVICTION RELIEF SO AS TO PERMIT HIM TO FILE AN AMENDED MOTION?

FACTS

¶ 2. Raymond Faye was indicted by the grand jury of Pearl River County for the felonies of robbery with a deadly weapon and conspiracy. Faye later signed and executed a “Petition to Enter Plea of Guilty,” in which he expressed an interest in pleading guilty to the felony of robbery. After questioning Faye extensively, the court accepted Faye’s plea of guilty to the felony of robbery, with a sentence of fifteen years. In his sworn petition, Faye acknowledged that he understood all of his rights and was satisfied with his attorney. Faye later filed a motion for post-conviction relief which was later amended to add additional constitutional violations. However, in his amended motion, Faye failed to state what constitutional violations he wished the court to address.

¶ 3. Faye’s motion for post-conviction relief was later denied by the trial court as being without merit. He now appeals to this Court to allow him to amend his initial motion for post-conviction relief.

ANALYSIS

DID THE COURT ERR WHEN IT REFUSED TO VACATE ITS ORDER DENYING RELIEF ON FAYE’S MOTION IN POST-CONVICTION RELIEF SO AS TO PERMIT HIM TO FILE AN AMENDED MOTION?

¶ 4. A trial court’s denial of a motion to amend a complaint is subject to an abuse of discretion standard of review. Southeastern Med. Supply, Inc. v. Boyles, Moak & Brickell Ins., Inc. 822 So.2d 323, 329-30(¶ 23) (Miss.Ct.App.2002); Taylor Mach. Works, Inc. v. Great Am. Surplus Lines Ins. Co., 635 So.2d 1357, 1362 (Miss.1994). In this case, the circuit court did not abuse its discretion when it denied Faye’s motion to amend.

¶ 5. Faye asks this Court to find that the trial court was incorrect when it disallowed Faye to amend his initial motion for post-conviction relief. Mississippi Rule of Civil Procedure 15(a) states in part:

[a] party may amend his pleading as a matter of course at any time before a responsive pleading is served, or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within thirty days after it is served.

Faye claims that he should have been able to amend his complaint because the State never served a responsive pleading. However, the State is not required to file a responsive pleading, so Faye should have filed his motion to amend accordingly within thirty days of serving his post-conviction relief motion. Miss.Code Ann. § 99-39-11(1) — (3) (Rev.2000). Faye, however, filed his initial motion in March and did not attempt to amend until September. Therefore, the circuit court did not err when it denied Faye’s motion to amend. Moreover, Faye’s motion to amend included an argument based on Mississippi Civil Procedure Rule 59(e). Rule 59 is for motions for new trials. Faye cannot invoke this rule because he never had a trial, he pleaded guilty. Therefore, his argument is without merit, and the circuit court did not abuse its discretion when it dismissed Faye’s claim.

¶ 6. Finally, Faye cites Ragland v. State, 586 So.2d 170 (Miss.1991). He argues that this ease demonstrates that the circuit court was required to permit him to amend his motion. This case holds that a filing in post-conviction relief is to be returned if it does not meet the form and procedural requirements of Mississippi Code Annotated section 99-39-3 (Rev.2000). Faye claims that his initial post-conviction relief filing was defective under the statute. However, the circuit court found Faye’s arguments in post-conviction relief to be without merit and not proeedurally defective. Therefore, Ragland is not on point here and the circuit court did not abuse its discretion when it dismissed Faye’s claim.

¶ 7. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

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


text:
    Roger McCRIMON, Appellant, v. RED ARROW CAR WASH and Fidelity & Casualty Company of New York, Appellees.
    No. 2002-WC-01606-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2003.

      Kenneth S. Womack, attorney for appellant.
    Roger C. Riddick, Jackson, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Roger McCrimon settled a workers’ compensation claim in May 1993. On June 1, 1993, the employer filed a report of payment and settlement receipt (Form B-31) which was signed and acknowledged by McCrimon. On September 7, 1993, the employer filed a revised Form B-31. McCrimon made a motion to reopen his claim before Administrative Law Judge Linda Thompson. Judge Thompson granted MeCrimon’s motion to reopen. The Full Commission, however, reversed the decision of the administrative law judge and the Circuit Court of Hinds County affirmed the Full Commission’s decision. From this, McCrimon appeals to this Court.

STATEMENT OF THE ISSUES

I. WHETHER SUBSTANTIAL EVIDENCE SUPPORTS THE FINDINGS OF THE FULL COMMISSION THAT THE APPELLANT IS NOT ENTITLED TO REOPEN THIS MATTER.

II. WHETHER THE FULL COMMISSION DECISION REGARDING THE CHANGES TO FORM B-31 WAS CORRECT.

FACTS

¶ 2. McCrimon began working for Red Arrow Car Wash, his employer, on October 29, 1991. He was employed as a shift manager and also assisted other employees with the washing and waxing of customers’ vehicles. On June 17, 1992, McCrimon injured his back while buffing a vehicle. Red Arrow provided medical treatment and temporary total disability benefits.

¶ 3. McCrimon was treated by Dr. John Górecki, a neurosurgeon, and Dr. Greg Wood, an orthopaedic surgeon. In October 1992, MeCrimon’s spine was fused with metal plates and screws to stabilize it. McCrimon had previous back problems in 1980, 1985, and 1990. In all three of these instances, McCrimon filed and settled a workers’ compensation claim. Also, at least one of these claims involved a surgery.

¶ 4. After the 1992 surgery, McCrimon was treated by Dr. Wood until May 18, 1993. Dr. Wood released McCrimon because he determined that his patient had reached maximum medical improvement. However, Dr. Wood would see McCrimon as needed. Dr. Wood assigned an impairment rating of 25% to the whole body based on MeCrimon’s injury at Red Arrow along with his prior injuries. Importantly, Dr. Wood also discussed with McCrimon the potential need for future surgery to remove the metal hardware from the spinal fusion one year following the surgery. Red Arrow paid temporary total disability benefits and provided all medical services and supplies from the date of the injury until May 25,1993.

¶ 5. On May 25, 1993, McCrimon agreed to a 9(i) settlement of his workers’ compensation claim for $40,000. McCrimon signed a release and Form B-31 on that day. This Form B-31 (May form) was filed in June 1993. Subsequently, on September 7,1993, a revised Form B-31 (September form) was filed. The September form was not signed by McCrimon and was instead forwarded to his last known address. The differences in the two Forms B-31 were as follows: Line 22 of the May form had hospital expenses listed as $32,903.12, while the September form listed these expenses as $33,615.12. Line 23 of the May form listed doctor’s fees as $13,298.16, while the September form stated these fees were $13,442.16. Also the May form listed the Line 25, other expenses, as $2,104.91, while the September form listed these expenses as $2,640.71. The total expenses on the May form were $98,387.63 and were $99,799.93 on the September form. The September form also had the number 36,256.33 hand written on it, but does not indicate the meaning of this figure. Finally, the September form had an additional hand-written sentence fragment on Line 29 stating that the form was not signed because the employee had failed to return it.

¶ 6. In October 1993, McCrimon returned to Dr. Wood for treatment. Dr. Wood recommended that the hardware be removed from McCrimon. Dr. John Frénz removed the hardware in February 1995. McCrimon had further surgeries in November 1996, July 1997, and September 1997; however, these surgeries were after McCrimon had been in an automobile accident and after he had taken a fall at home.

¶ 7. After these additional surgeries, McCrimon filed a motion to reopen his claim and a petition to controvert. He alleged that there was a mistake of fact regarding the settlement, that his physical condition significantly worsened after the settlement and that the claim was not barred by the one-year statute of limitations. Following a hearing on the matter, the administrative law judge reopened the claim, finding that the statute of limitations did not bar the reopening of the claim and that his condition had significantly changed after the settlement. Af-terwards, the Commission reversed the decision of the administrative law judge finding that the statute of limitations did bar the reopening of the claim and alternatively, that McCrimon’s alleged change in condition was also insufficient to justify the reopening of his claim. This decision was appealed to the circuit court which affirmed the decision of the Full Commission.

¶ 8. McCrimon now claims that he did not receive the notice of the filing of the September Form B-31 until after he sought to reopen his claim and therefore the one-year statute of limitations should not have begun to run. He also claims that a change in condition had occurred since his settlement. He, therefore, asks that this case be remanded for more discovery to determine the nature of any subsequent medical payments made by the carrier after the initial May Form B-31 was filed.

ANALYSIS

I. WHETHER SUBSTANTIAL EVIDENCE SUPPORTS THE FINDINGS OF THE FULL COMMISSION THAT THE APPELLANT IS NOT ENTITLED TO REOPEN THIS MATTER.

II. WHETHER THE FULL COMMISSION DECISION REGARDING THE CHANGES TO FORM B-31 WAS CORRECT.

¶ 9. The findings and orders of the Mississippi Workers’ Compensation Commission are binding on all appellate courts so long as the decisions are supported by substantial evidence. Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994); Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988); Champion Cable Const. Co., Inc., v. Monts, 511 So.2d 924, 927 (Miss.1987); Penrod Drilling Co. v. Etheridge, 487 So.2d 1330, 1332 (Miss.1986); Georgia-Pacific Corp. v. Veal, 484 So.2d 1025, 1027 (Miss.1986); Evans v. Marko Planning, Inc., 447 So.2d 130, 132 (Miss.1984). This is a general deferential standard of review to the findings of the Commission. Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1245 (Miss.1991). Great deference is given to the findings of the Commission when supported by substantial evidence. Harper v. North Miss. Med. Ctr., 601 So.2d 395, 395 (Miss.1992). As a matter of custom and practice, the administrative law judge is generally, within the Commission, the individual who conducts the hearing and hears the live testimony. However, it is the Commission itself that is the finder of the facts and that on judicial review, its findings and decisions are subject to the normal deferential standards, notwithstanding the opinion of the administrative law judge. Walker Mfg. Co., 577 So.2d at 1245.

¶ 10. In this case, McCrimon must show that there was not substantial evidence to support the Commission’s finding that the filing of the September Form B-31 did not stop or interrupt the running of the one-year statute of limitations which began with the May Form B-31. Form B-31 is filed with the Commission in order to provide the notice required by Mississippi Code Annotated section 71-3-37(7) before a worker’s rights to benefits can be terminated and for due process of law. M.W.C.C. Procedural Rule 17. As the district court discussed, the statute of limitations for a completed and signed Form B-31 begins to run upon the filing of the form with the Commission. For complete but unsigned forms, the one-year statute of limitations begins to run when the claimant is notified by the employer that the unsigned form has been filed with the Commission. Staple Cotton Services Ass’n v. Russell, 399 So.2d 224 (Miss.1981); see also Vardaman S. Dunn, Mississippi Workers’ Compensation § 256 (3d ed. 1982 & Supp.1988). If, after the proper filing of the Form B-31, additional medical expenses are provided, the running of the one-year statute of limitations ceases, and will begin to run after a new Form B-31 is properly filed. Dunn, supra at § 259.

¶ 11. In this case, the Commission found that the one-year statute of limitations began to run when the May Form B-31 was filed. The Full Commission determined that nothing had happened after this filing that would have stopped the running of the statute of limitations. The Commission determined that the differences in the numbers were mere corrections of the amount actually paid. It found that no additional benefits were furnished to McCrimon after he received his $40,000 settlement. While the administrative law judge found that there were grounds to reopen the file, it is the Commission’s decision that this Court must defer to. McCrimon presented no evidence demonstrating that additional benefits were furnished or provided after the filing of the May Form B-31.

¶ 12. McCrimon argues that he was not allowed to perform any discovery to determine the reason why there were two different sets of numbers on the May Form B-31 and September Form B-31. He appeals to this Court to “reaffirm” prior decisions finding that:

[a]t the outset, it is important to remember that the provisions of the Mississippi Workers’ Compensation Act are to be construed liberally and that ‘doubtful cases are to be resolved in favor of compensation so that the beneficent purposes of the act may be achieved.’

Holbrook et. al. v. Albright Mobile Homes, Inc., 703 So.2d 842, 844(¶5) (Miss.1997), quoting Robinson v. Packard Elec. Div., 523 So.2d 329, 332 (Miss.1988). This Court does uphold Holbrook and Robinson and is quick to reinforce the fact that this liberal construction of the Act shall be applied to doubtful cases. Some examples of doubtful cases are when the employer misrepresents the nature and existence of its coverage and the employee relies on such statements or when the employer fails to give notice to the Commission. See Casey v. Deeson Cash Grocery, 246 So.2d 534, 535 (Miss.1971); Martin v. L. & A. Contracting Co., 249 Miss. 441, 162 So.2d 870, 872 (1964).

¶ 13. This case, however, is not a doubtful case. The Commission found that the revised September Form B-31 was submitted to correct errors in the amount of medical expenses reported on the May Form B-31. In fact, the only differences between these two forms concerned these numbers. Furthermore, Mississippi has found that the filing of a Form B-31 containing errors as to the amount of benefits paid is sufficient to begin the running of the statute of limitations and that the filing of a corrected form will not interrupt the running of the statute of limitations even if it is without notice to the claimant. Carter v. Wrecking Corp. of America, 234 Miss. 559, 565-66, 107 So.2d 116, 119 (1958).

¶ 14. The evidence clearly shows that McCrimon was informed that he may have future medical expenses when he agreed to the $40,000 settlement. There is no doubt that McCrimon knew of the possibility of further medical treatments. Furthermore, some of the additional treatments he received were after he had been injured in an automobile accident and a fall at home. The Commission found no proof of mistake in determination of fact or a change in condition that would justify the reopening of MeCrimon’s case for discovery. McCri-mon did not have another surgery until 1995 and then waited until 1998 to move to have his claim reopened. Further evaluation of the Forms B-31 would not change these facts or further support McCrimon. He understood the implications of his settlement and he was not denied due process.

¶ 15. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Reno O’Neal BERRY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00957-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2003.

      Stephen P. Livingston, New Albany, attorney for appellant.
    Office of the Attorney General by: Billy L. Gore, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. Reno O’Neal Berry was indicted on December 12, 2001, by the grand jury of Union County, Mississippi, and charged with four counts of selling a controlled substance, crack cocaine. However, Berry only went to trial on Count II. Following a jury trial, Berry was convicted of the sale of cocaine charged in Count II in violation of Mississippi Code Annotated section 41-29-139. He was then sentenced to twenty years in the custody of the Mississippi Department of Corrections with eight years suspended and twelve years to serve. It is that conviction that Berry now appeals.

STATEMENT OF THE ISSUES

1. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT BERRY’S MOTION FOR A DIRECTED VERDICT AND/OR J.N.O.V.

II. WHETHER THE TRIAL COURT ERRED IN DENYING JURY INSTRUCTIONS DM, D-9, AND D-10.

III. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GIVE JURY INSTRUCTION D-13.

IV. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL BASED ON PROSECUTO-RIAL MISCONDUCT.

V. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW DEFENSE COUNSEL TO CROSS-EXAMINE A CONFIDENTIAL INFORMANT’S PRIOR CONVICTION.

VI. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE STATE’S WITNESS TO NARRATE A VIDEO.

FACTS

¶ 2. Reno Berry, a resident of Saltillo, Mississippi, sold 3.9 grams of cocaine to Reginald Williams, a confidential informant and the State’s only eyewitness.

¶ 3. Reginald Williams testified that he purchased cocaine from Berry in the bathroom of Pinkie Pulliam’s house on Sunset Road in Union County. Berry personally handed Williams the cocaine and Williams, in turn, handed Berry $300.

¶ 4. Tommy Smithey, a narcotics investigator with the New Albany Union County Drug Task Force, testified that on March 2, 2001, Williams, a confidential informant, made a drug buy at the home of Pulliam from a man later identified as Berry. Pri- or to the drug purchase, Williams and his vehicle were searched for drugs. Finding none, Williams was then equipped with $300, a body transmitter and a video recording device, which ultimately recorded the transaction on videotape.

¶ 5. J.C. Smiley, a forensic drug analyst, testified that the substance sold to Williams constituted 3.93 grams of cocaine.

¶ 6. After the State finished its case-in-chief, Berry made a motion for a directed verdict which was overruled by the trial judge. Berry neither testified nor produced any witnesses to testify in his defense. The trial court also denied a peremptory instruction. Berry was later found guilty and sentenced by the court. Berry filed a motion for a JNOV which was denied by the trial court on June 18, 2002.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT BERRY’S MOTION FOR A DIRECTED VERDICT AND/OR J.N.O.V.

¶ 7. Our standard of review regarding motions for a directed verdict and also a JNOV is:

Sufficiency questions are raised in motions for directed verdict and also in JNOV motions. McClain v. State, 625 So.2d 774, 778 (Miss.1993). Where a defendant moves for a JNOV or a directed verdict, the trial court considers all of the credible evidence consistent with the defendant’s guilt, giving the prosecution the benefit of all favorable inferences that may be reasonably drawn from this evidence. Id. This Court is authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence is such that reasonable and fair-minded jurors could not find the accused guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987.)

Holmes v. State, 798 So.2d 533, 538(¶ 18) (Miss.2001).

¶ 8. Motions for directed verdict and motions for JNOV are both for the purpose of challenging the legal sufficiency of the evidence. Noe v. State, 616 So.2d 298, 302 (Miss.1993); McClain, 625 So.2d at 778. See also Strong v. State, 600 So.2d 199, 201 (Miss.1992).

¶ 9. Our standard of review regarding the legal sufficiency of the evidence is as follows:

[W]e must, with respect to each element of the offense, consider all of the evidence — not just the evidence which supports the case for the prosecution — in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may 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.

Wetz, 503 So.2d at 808.

¶ 10. According to the above standard of review, this Court looks at the evidence in the light most favorable to the verdict. This was certainly not a difficult task. All of the evidence points to the fact that Berry committed the crime of selling cocaine. There is even a video showing Berry and his illegal actions. There is no merit to this issue.

II. WHETHER THE TRIAL COURT ERRED IN DENYING JURY INSTRUCTIONS D-4, D-9, AND D-10.

¶ 11. Berry asserts that it was reversible error by the trial court not to grant jury instructions number D-4, D-9, and D-10 that concerned reasonable doubt or explained reasonable doubt.

¶ 12. “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Johnson v. State, 823 So.2d 582, 584(¶ 4) (Miss.Ct.App.2002).

Jury Instruction D-4.

¶ 13. The trial court refused to grant jury instruction D-4, which provided:

The testimony of a law enforcement officer should be considered by you just as any other evidence in the case. In evaluating his or her credibility you should use the same guidelines which you apply to the testimony of any witness. In no event should you give either greater or lesser credence o[sic] the testimony of any witness merely because he or she is a law enforcement officer.

¶ 14. As stated in Hansen v. State, “[o]ur criminal procedure has long perceived dangers in comments upon the evidence, and in that regard we have for years had a statute,” Mississippi Code Annotated section 99-17-35, which reads in pertinent part:

The judge in any criminal cause, shall not sum up or comment on the testimony or charge the jury as to the weight of evidence....

Hansen v. State, 592 So.2d 114, 141 (Miss.1991) (see also Washington v. State, 341 So.2d 663, 664 (Miss.1977)).

¶ 15. This instruction, which commented on the weight of the evidence, was properly refused by the trial judge.

Jury Instruction D-9

¶ 16. The trial court also refused to grant instruction D-9, which provided:

The court instructs the jury that you are bound, in deliberating upon this case, to give the Defendant the benefit of any reasonable doubt of the Defendant’s guilt that arises out of the evidence or want of evidence in his case. There is always a reasonable doubt of the Defendant’s guilt when the evidence simply makes it probable that the Defendant is guilty. Mere probability of guilt will never warrant you to convict the Defendant. It is only when on the whole evidence you are able to say on you oaths [sic], beyond a reasonable doubt, that the Defendant is guilty, that the law will permit you to find him guilty. You might be able to say that you believe him to be guilty, and yet, if you are not able to say on your oaths, beyond a reasonable doubt, that he is guilty, it is your sworn duty to find the Defendant “not guilty.”

¶ 17. There were numerous instructions including D-2, D-5, D-7 and court instruction No. 2 that were given to the jury regarding reasonable doubt. The Mississippi Supreme Court has stated that “reasonable doubt defines itself; it therefore needs no definition by the court.” Barnes v. State, 532 So.2d 1231, 1235 (Miss.1988) (citing Boutwell v. State, 165 Miss. 16, 143 So. 479, 483 (1932)); see also Simpson v. State, 497 So.2d 424, 430 (Miss.1986); Pittman v. State, 350 So.2d 67, 71 (Miss.1977); Isaacks v. State, 337 So.2d 928, 930 (Miss.1976). It is apparent to this Court that jury instruction D-9 was superfluous. The jury received a plethora of instructions concerning reasonable doubt. The jury had been fully informed that before it could return a verdict of guilty it had to believe beyond a reasonable doubt that Berry was guilty.

Jury Instruction D-10

¶ 18. The trial court refused to grant instruction D-10, which provided:

The court instructs the jury that a reasonable doubt may arise from the whole of the evidence, the conflict of the evidence, the lack of evidence, the insufficiency of the evidence, but however it arises, if it arises, it is your sworn duty to find the Defendant “not guilty.”

¶ 19. Berry contends that D-10 explained reasonable doubt and that if he is entitled to have the issue submitted to a jury, an instruction on reasonable doubt must be granted. Anderson v. State, 571 So.2d 961, 964 (Miss.1990). However, the trial court is “under no obligation to grant redundant instructions.” Montana v. State, 822 So.2d 954, 961(¶26) (Miss.2002). “The refusal to grant an instruction which is similar to one already given does not constitute reversible error.” Id.

¶ 20. Jury instruction D-10 is identical to D-2, which was given to the jury. With jury instruction D-10 being cumulative and repetitious, it was properly refused by the trial court. As stated in Montana, a trial judge is under no obligation to grant redundant instructions.

III. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GIVE JURY INSTRUCTION D-13, THE SO CALLED “ONE JUROR INSTRUCTION.”

¶21. Jury instruction D-13 is a form of the “one juror” or so-called “sinker” instruction. This instruction calls upon each juror to stand by his convictions on the evidence, and does not permit any single juror to bring in or stand for any other verdict than one which he was authorized to adopt by law and the evidence in the case. Gee v. State, 183 Miss. 697, 185 So. 203, 205 (1938).

¶ 22. Although the Mississippi Supreme Court, in Edlin v. State, 523 So.2d 42, 49 (Miss.1988), has held that where the jury is not given the single jury instruction, it is reversible error, the denial of instruction D-13 in the present case was not error because it was properly covered by other instructions, including the court’s instructions.

¶ 23. In Mallette v. State, the court held that the denial of the one juror instruction was not error because another instruction “did instruct the jury that twelve jurors must agree upon the verdict [and][w]ith that instruction, and considering all instructions together, we are of the opinion that it was not error to refuse Instruction 9-D.” Mallette v. State, 349 So.2d 546, 550 (Miss.1977).

¶ 24. After reading all instructions submitted to the court, it is evident that court instruction No. 4 which was given is identical in content to D-13 except for the last sentence which stated, “[i]f there is any juror who is not convinced” beyond a reasonable doubt of the Defendant’s guilt, it is his or her duty to vote “NOT GUILTY,” even though it may cause a mistrial of this case. It should also be noted that jury instruction D-18 is virtually identical to court instruction No. 4 except for a few words in the beginning sentences. The jury instructions, taken as a whole as dictated in Johnson, adequately inform the jury that all twelve jurors must agree on the verdict. The trial court’s denial of jury instruction D-13 was not error since there were other instructions which said the exact same thing.

IV. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL BASED ON PROSECUTO-RIAL MISCONDUCT.

¶25. Berry also argues that, during closing arguments, the prosecutor improperly objected to defense counsel’s mentioning Williams’s prior burglary conviction.

¶ 26. The standard of review which this Court must apply to lawyer misconduct during closing arguments is “whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Sheppard v. State, 777 So.2d 659, 661(¶ 7) (Miss.2001) (citing Ormond v. State, 599 So.2d 951, 961 (Miss.1992)).

Attorneys are afforded wide latitude in arguing their cases to the jury, but they are not allowed to employ tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury. The purpose of a closing argument is to fairly sum up the evidence. The State should convey those facts which the prosecution asserts a verdict of guilty would be proper. The prosecutor may comment upon any facts introduced into evidence, and he may draw whatever deductions and inferences that seem proper to him from the facts. Counsel cannot, however, state facts which are not in evidence, and which the court does not judicially know, in aid of his evidence.

Flowers v. State, 842 So.2d 531, 553-54 (¶¶ 63-64) (Miss.2003) (citations omitted).

¶ 27. In the present case, the record shows that during his closing argument defense counsel mentioned a burglary committed by Williams, the State’s confidential source. The district attorney quickly objected on the grounds that defense counsel was arguing matters that were outside the testimony. The argument is as follows:

HOOD (District Attorney): I object he is arguing facts outside the testimony—
LIVINGSTON (Counsel for Berry): Your Honor, it’s already been testified to.
HOOD: No, sir. The crime he was committed [sic] was never discussed in the facts.
LIVINGSTON: I disagree he admitted that he burglarized.
COURT: I think that was the extent of it however. Objection is noted. It’s closing argument.
LIVINGSTON: I would instruct the DA not to interrupt me during my argument.
COURT: The objection is valid as to the specific nature of the crime but there was some testimony about it and objection will be sustained.
LIVINGSTON: Can I talk about him being convicted of a burglary?
COURT: I think that came out. You are free to talk about that.

¶ 28. There was no harm or prejudice to Berry who was permitted to attack Williams’s credibility during closing arguments by referring to Williams as a “burglar [and] a thief [and] a dope seller [and] a dope user.” Therefore, this issue is without merit.

¶ 29. As a second part to this issue, Berry claims the district attorney was guilty of egregious misconduct because he called defense counsel a “first year law student.” Actually, the district attorney never referred to counsel directly, but rather, he simply suggested that a first year law student knows that lawyers are entitled to object to both evidence and argument.

¶ 30. In the record, there is a lack of any type of objection, contemporaneous or otherwise. Accordingly, there can be no error absent a contemporaneous objection preserving the matter for appellate review. Caston v. State, 823 So.2d 473, 502-03 (¶ 102) (Miss.2002); Goree v. State, 750 So.2d 1260, 1262 (¶ 4) (Miss.Ct.App.1999). Because there was no objection in the case sub judice, we do not discuss the merits concerning this issue, however, this Court feels the need to warn prosecutors about such comments which could result in reversible error.

V. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW DEFENSE COUNSEL TO CROSS-EXAMINE A CONFIDENTIAL INFORMANT’S PRIOR CONVICTION.

¶ 31. In this issue, Berry argues in only seven lines that the trial court erred in refusing to allow him to cross examine Williams about his prior convictions. However, in his brief argument, Berry fails to cite any authority for his position.

¶ 32. The Mississippi Supreme Court has stated on numerous occasions that it is under no duty to consider assignments of error when no authority is cited. McDowell v. State, 807 So.2d 413, 425(¶ 35) (Miss.2001); Hoops v. State, 681 So.2d 521, 526 (Miss.1996); Kelly v. State, 553 So.2d 517, 521 (Miss.1989); Brown v. State, 534 So.2d 1019, 1023 (Miss.1988); Harris v. State, 386 So.2d 393 (Miss.1980). The court has also held that it is the duty of an appellant to provide authority and support of an assignment. Id. If a party does not provide this support this Court is under no duty to consider assignments of error when no authority is cited. Hewlett v. State, 607 So.2d 1097, 1106 (Miss.1992); Kelly, 553 So.2d at 521; Brown, 534 So.2d at 1023.

¶ 33. Accordingly, this issue is proee-durally barred.

VI. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE STATE’S WITNESS TO NARRATE A VIDEO.

¶ 34. Berry argues that it was error to allow Williams, the State’s witness, to explain to the jury what was taking place in the video as the videotape was being played for the jury. He contends that the video spoke for itself.

¶ 35. In reliance on Blue v. State, this Court finds that Williams’s narration “was used only for the purpose of showing the jury exactly what was taking place — an entirely permissible and helpful activity that is to be distinguished from the circumstances where a witness attempts to place his or her own subjective interpretation of events transpiring in the video based on nothing beyond the witness’s own inspection of the contents of the videotape.” Blue v. State, 825 So.2d 709, 712(¶ 12) (Miss.Ct.App.2002) (citing Potts v. State, 755 So.2d 521 (¶¶ 13-15) (Miss.Ct.App.1999)). In Blue, this Court held that “as long as the witness’s testimony is confined to matters actually perceived firsthand there can be no improper prejudice to the defendant to permit the witness to relate those observations to the jury, during their view of the tape, in order to help the jury reach a better understanding of what the witness contends is transpiring on the tape of the witness’s own personal knowledge.” Id.

¶ 36. Williams was physically present, inside the home of Pulliam, consummating the sale of cocaine. He had first-hand knowledge of the events as they were taking place; therefore, this issue is without merit.

¶ 37. Although the narration was acceptable in this case, trial courts should be aware that there is a danger in allowing someone to narrate on a video because he could be commenting on a section of the video that was not clear. However, even if the evidence is clear as to events unfolding, one is never allowed to comment on something to the extent that his comments change people’s minds as to what they actually see.

¶ 38. THE JUDGMENT OF THE UNION COUNTY CIRCUIT COURT OF THE CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWENTY YEARS, EIGHT YEARS SUSPENDED AND TWELVE YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAY $200 IN RESTITUTION IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO UNION COUNTY.

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


author: LEE, J., IRVING, J.,

text:
    Jimmy Harrison LEE, Appellant, v. Evelyn Joyce LEE (Reed), Appellee.
    No. 2002-CA-00262-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2003.
    Callestyne Hall Crawford, attorney for appellant.
    Boyd P. Atkinson, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Jimmy Harrison Lee and Evelyn Joyce Lee were married on April 22, 1983, and a daughter, Kelly Doreen Lee, was born on March 5, 1985. Evelyn filed for divorce in the Leflore County Chancery Court on October 6, 1989, Jimmy filed a response on November 6, 1989, and a divorce was granted on November 17, 1989. Evelyn was given sole custody of Kelly with restricted visitation to Jimmy. The court deferred the issue of child support and alimony, due to the lack of information concerning Jimmy’s employment and income.

¶ 2. On May 13, 1993, Jimmy was found to be disabled and was awarded Supplemental Security Income (SSI) benefits. On January 4, 1994, Evelyn filed a petition for modification, requesting child support from Jim. There was a hearing in September of 1994, which was continued to December of 2001. The chancellor set child support at $65 per month, retroactive from the hearing in September of 1994, with $10 a month added for arrearage, for a total of $75 due per month. Jimmy then perfected his appeal to this Court, asserting the following issues: (1) whether the chancellor erred in awarding child support based on Jimmy’s sole source of income, the SSI benefits; and (2) whether federal law preempts any Mississippi law which imposes a child support obligation on Jimmy’s SSI benefits. We note that this cause was originally remanded to the chancery court for the parties and the chancellor to resolve other issues. Jimmy filed a motion for relief from judgment and declaratory relief, which was noticed for hearing. However, as neither of the parties appeared for the hearing nor notified the court that the hearing had been cancelled, this cause is before us yet again.

DISCUSSION OF ISSUES

¶ 3. As Evelyn did not file a brief in this matter, we have two options before us. The first is to take Evelyn’s failure to file a brief as a confession of error and reverse, which should be done when the record is complicated or of large volume and “the ease has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error.” May v. May, 297 So.2d 912, 913 (Miss.1974). The second is to disregard Evelyn’s error and affirm, which should be used when the record can be conveniently examined and such examination reveals a “sound and unmistakable basis or ground upon which the judgment may be safely affirmed.” Id. Because Jimmy has not made out an apparent case of error and the basis for the chancellor’s decision is sound, we affirm and discuss the merits below.

¶ 4. The dissent argues that Jimmy should not be required to pay child support because the child in question is not his biological child. A letter written by Evelyn’s attorney stated that Jimmy was not the biological father, and a copy of adoption documents was attached. While we agree that a father should not be required to continue child support payments for a child determined not be his biological child, we cannot suspend the payments in this case solely based on a letter completely extrinsic to the record. Furthermore, counsel for appellant was given an opportunity to have this matter presented to the chancery court but never did and did not contact this Court either.

¶ 5. Our standard in reviewing findings of the chancery court is clear: we will not disturb the chancellor’s findings on appeal unless the chancellor abused his discretion, was manifestly wrong, or applied an erroneous legal standard. Pearson v. Pearson, 761 So.2d 157(¶ 14) (Miss.2000).

¶ 6. We note that a majority of states exempt SSI benefits from inclusion in calculating gross income for child support purposes. Upon examination of the record, we find that the chancellor did not award child support based solely on Jimmy’s SSI benefits. The chancellor stated that the guidelines allow the court to consider income from any source, including government payments. The chancellor was also of the opinion that a withholding order could not be placed upon SSI benefits. However, after observing and questioning Jimmy at the hearing in 1994, the chancellor determined that Jimmy did have the ability to pay some child support. The chancellor stated that he did not believe Jimmy was as destitute as he claimed or that Jimmy was as incapacitated as he claimed. Evidently Jimmy received $7,000 in 1992 as back pay after being approved for SSI benefits and only gave about $100 of that money to Kelly. Jimmy testified that he gave the rest to his mother for taking care of him during the year after his accident.

¶ 7. The chancellor determined that Jimmy was capable of finding a way to raise money in order to support Kelly, even if it was not a great sum. The chancellor stated the following at the 2001 hearing:

Now if, in fact, there is some restriction that would be placed on because of court ruling otherwise, the Court still finds Mr. Lee, though he had a mental condition which required and which allowed him to have a hundred percent disability for SSI, still had physical abilities and enough mental ability to make some provision for his child through some form of work or the efforts of, if nothing else, picking up Coke cans and turning them in for a refund. There are many ways in which an individual, when it comes to their children, can make some amount of money so that some allocation can be made from that.

¶ 8. We cannot find that the chancellor abused his discretion in awarding child support to Kelly. As the chancellor did not base the amount of child support solely on Jimmy’s SSI benefits, we decline to discuss Jimmy’s remaining issue of whether federal law preempts any Mississippi law imposing a child support obligation on SSI benefits.

¶ 9. THE JUDGMENT OF THE LE-FLORE COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., SOUTHWICK, P.J., MYERS AND GRIFFIS, JJ., CONCUR. IRVING, J., DISSENTS WITH A SEPARATE WRITTEN OPINION JOINED BY KING, P.J., BRIDGES, THOMAS AND CHANDLER, JJ.

IRVING, J.,

Dissenting:

¶ 10. I cannot agree with the majority that Jimmy should be required to pay child support for a child who all parties, on appeal, agree is not his child. The majority finds that the record before us is inadequate to permit a decision predicated upon the notion that Jimmy is not the biological father of the child for whom he has been ordered to pay child support. The majority reaches this decision notwithstanding the fact that the attorney for Evelyn, during the pendency of this appeal, has represented to this Court that DNA analysis has revealed that Jimmy is not the father of the minor child. Concluding that it has no other option but to decide the appeal without consideration of the representation that Jimmy is not the biological father of the minor child, the majority affirms the judgment of the trial court ordering Jimmy to pay child support.

¶ 11. With respect for the majority, I must dissent for two reasons. First, as explained in the paragraphs that follow, I believe there is an alternative to deciding the appeal at this time. Second, even if it is appropriate to decide the appeal now on its merits, I believe the majority errs in affirming the trial court because I do not believe there was any credible evidence to support the chancellor’s decision.

¶ 12. After this case was appealed, Evelyn’s attorney wrote the clerk of this Court and advised as follows:

I realize that the brief for appellee is delinquent in this matter and I do not intend to file a brief on behalf of appel-lee. The above styled case arose out of delinquent child support and an attempt on the part of Mrs. Lee to collect back child support from Mr. Lee. Since that hearing that is being appealed to the Supreme Court, it has been learned that Mr. Lee is not, in fact, the biological father of the child in question and an adoption proceeding has been filed in Leflore County on behalf of Mrs. Lee and the biological father, (emphasis added).

A copy of the adoption documents, which were filed in the Chancery Court of Le-flore County, was attached to counsel’s letter.

¶ 13. The record in the trial court reveals that on June 17, 1994, the chancellor entered an order requiring Jimmy to pay $150 per month in child support. Jimmy filed a pro se motion to set aside the support order because, according to Jimmy, he never received notice of the hearing. For whatever reasons, Jimmy’s motion was not ruled upon until August 1, 2001, at which time the chancellor ordered “[t]hat enforcement of the order entered on June 17, 1994, is suspended retroactively until the Court’s directives are met according to that hearing held as transcribed on September 28,1994.”

¶ 14. In the September 28, 1994 hearing, which was referenced in the August 1, 2001 order, the trial court reserved ruling on the amount of child support:

until it has an opportunity to have the Department of Human Services case worker on this case consulting with [sic] and their position made clear to this Court as to what they feel this individual should be able to pay and/or whether they have pursued any other avenues or attempts to get support, so that the Court would have full information about that and can then set some nominal sum of money, probably under $100.

On December 14, 2001, another hearing was held on the matter of child support, and at that time, the chancellor ordered Jimmy to pay $65 per month in child support. The order for support, however, was not entered until January 18, 2002. It is from this order that the present appeal emanates.

¶ 15. The remand order from this Court, which is referenced in the majority opinion, sent the case back to the chancery court for sixty days to allow either party to file a motion for relief from the January 18, 2002 support order since subsequent developments have shown that Jimmy is not the biological father of the minor child. As noted in the majority opinion, Jimmy, pursuant to this Court’s order of remand, filed in the Chancery Court of Leflore County a motion for relief from the January 18, 2002 order, but neither party appeared on the date of the hearing which was set in the notice of hearing filed with Jimmy’s motion. As best as can be ascertained from the record, this motion still lingers. It may be that the adoption occurred in the interim, and the parties view this issue as moot. I note that, according to the proof of publication attached to the adoption pleadings, process in those proceedings was completed on September 19, 2002, well before this Court’s remand order was entered on April 8, 2003.

¶ 16. Nevertheless, on these facts, I cannot agree that Jimmy should be required to pay child support, either retroactively or prospectively. First, the only final order of support entered in this case is the one that is the subject of this appeal. Therefore, we are not faced with a situation concerning vested past-due support, even though the chancellor’s January 18, 2002 support order adjudicated Jimmy’s support obligation retroactively to September 1994.

¶ 17. Well settled now is the law in this state that — notwithstanding a prior judicial adjudication of paternity — a child support obligor, who has been excluded by DNA testing from being the biological father of the minor child who is the subject of the support order, is not liable for the support of that child. See M.A.S. v. Mississippi Department of Human Services, 842 So.2d 527, 531 (¶¶ 17-18) (Miss.2003); cf. Rafferty v. Perkins, 757 So.2d 992 (Miss.2000).

¶ 18. In refusing to consider a cancellation of Jimmy’s support obligations, the majority says “we cannot suspend the payments in this case solely based on a letter completely extrinsic to the record.” Majority opinion at (¶ 4). I find this explanation interesting, particularly in light of the fact that it was this “extrinsic letter” that formed the basis for this Court’s issuing the order referenced in paragraph two of the majority’s opinion. Moreover, it does not appear that any payments have been made. The judgment ordering the payments is the judgment being considered in this appeal. The appeal does not involve the suspension of child support payments but the correctness of a judgment which orders payments to be made retroactive.

¶ 19. I understand the majority’s frustration in light of the fact that, during the sixty-day remand period ordered by this Court, the matter of paternity of the minor child apparently was not resolved. However, the fact is, during that remand, a Rule 60(b) motion was filed by Jimmy. This fact was verified in a letter, dated June 23, 2003, from a deputy clerk of the Chancery Court of Leflore County to the clerk of this Court. The letter advised that indeed a motion had been filed and noticed for hearing but neither party, nor counsel, appeared at the noticed hearing, and no one advised the trial court that the hearing had been canceled. We do not know why the attorneys did not appear for the hearing but should not assume that the attorneys were wilfully and intentionally ignoring the order of this Court to get it done within sixty days.

¶ 20. The fact that Jimmy filed, but did not bring on for hearing, a motion for relief from the support order should not operate to his disadvantage. I find this to be particularly true since (1) a timely appeal had already been taken from the entrance of the support order, and (2) allowing the support order to stand runs afoul of the clear holding in M.A.S.

¶ 21. It seems to me that, once this Court chose to treat counsel’s letter, in the words of this Court’s order, “as a petition for leave to file a motion before the Chancery Court of Leflore County under Rule 60(b) for relief from the final judgment now before [us] on appeal,” we should not ignore the lingering issue of paternity and decide the case as if we are unaware that the paternity issue is pending and that relief from the very judgment the majority affirms is being pursued by the pending Rule 60(b) motion. A show cause order would be a more appropriate course of action for us to follow rather than deciding the appeal at this time adversely to Jimmy.

¶ 22. In deciding the appeal, the majority pretermits the question of whether Jimmy’s Social Security supplemental income can be used in the calculation of his adjusted gross income. The majority, noting that a majority of states exempt SSI benefits from the calculation of an obligor’s adjusted gross income for child support purposes, decides that it is not necessary to decide the question because the chancellor “did not award child support based solely on Jimmy’s SSI benefits.” I agree with the majority that the chancellor did not base the award solely on Jimmy’s SSI benefits but he may just as well have done so. The chancellor based the award on his conviction, not on evidence adduced, that Jimmy could make money from some source, even if it meant picking up cans.

¶ 28. I absolutely salute the chancellor’s effort to hold men responsible for supporting their children, but the effort must be done within the bounds of the law. Therefore, I cannot agree that a one hundred percent mentally disabled, and apparently unskilled and uneducated, person can pick up enough cans to meet his child support obligations. There is just no proof in this record that Jimmy had any other source of income or that he possessed any entrepreneurial skills which would allow him to make some money. Nor is there any type of vocational or occupational rehabilitative assessment of Jimmy upon which the chancellor could rely. Therefore, it is my opinion that the chancellor abused his discretion in ordering child support based on Jimmy’s ability to make money.

KING, P.J., BRIDGES, THOMAS AND CHANDLER, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

      . The order is actually dated January 18, 2001. However, it is obvious that the date should have been January 18, 2002.