author: GRIFFIS, J.,

text:
    Roosevelt DOCKENS, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00352-COA.
    Court of Appeals of Mississippi.
    Aug. 3, 2004.

      Roosevelt Dockens, Jr., appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Roosevelt Dockens, Jr. pled guilty to two charges of grand larceny and one charge of possession of cocaine. He was sentenced to five years in the custody of the Mississippi Department of Corrections, with three years suspended and two years to serve, on each of the grand larceny charges. He was sentenced to serve eight years on the possession of cocaine charge. Dockens petitioned the circuit court for post-conviction relief and, subsequently, filed a motion to vacate, set aside, and correct judgment. The circuit court denied relief. On appeal, Dockens asserts that (1) the court failed to inform him of the true charges he faced and the minimum sentences for the charges, (2) his pleas were not entered knowingly, intelligently, and voluntarily, (3) the court failed to honor the plea agreement, (4) he was denied due process, and (5) he was denied effective assistance of counsel. We find no error and affirm.

STANDARD OF REVIEW

¶ 2. In reviewing a trial court’s decision to deny a motion for post-conviction relief the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶3) (Miss.Ct.App.2002).

ANALYSIS

1. Failure to inform of true charges and minimum sentence

¶ 3. Dockens asserts that his indictment was not read in open court in order to inform him of the true charges he faced. He also argues that the court erred in not reciting the minimum sentences for each charge and that he was unaware of the two-year minimum sentence for possession of cocaine.

¶ 4. During the evidentiary hearing, the legal assistant for Dockens’ counsel testified that she was not the one who wrote the “2” on the plea petition for possession of cocaine illustrating the minimum number of years imprisonment. Dockens relies on this testimony to support his claim that he was not informed of the two year minimum sentence that possession of cocaine carries. However, the fact that the minimum sentence was not written in the legal assistant’s handwriting does not suggest that Dockens was unaware of the minimum sentence. In fact, the record contains no evidence that supports either Dockens’ claim that he was not informed of the minimum sentence for the charges or his claim that he was not informed of the true charges he faced.

¶ 5. Both the indictment, which charged Dockens, and the petition to enter a plea of guilty filed by Dockens expressed that two years was the minimum sentence for possession of cocaine. The indictment specifically charged Dockens with having in his “possession a certain controlled substance, to wit .39 grams of Cocaine.” His petition to enter a plea of guilty on the possession of cocaine charge stated he was entering a plea of guilty to “possession of a controlled substance.” His petition to enter a plea of guilty on the two counts of grand larceny stated that he was pleading to the charges of “grand larceny 2 counts.”

¶ 6. Although the trial judge did not verbally state the minimum penalties for each charge Dockens faced, Dockens’ plea petitions informed him of the minimum sentences for the charges he faced. In Thompson v. State, 724 So.2d 1070, 1073 (¶ 14) (Miss.Ct.App.1998), we held that:

failure by a trial court specifically to inform a defendant of the maximum and minimum sentences may be harmless if the defendant was correctly informed by another source or “if appears beyond a reasonable doubt that the plea would have been entered anyway....” State v. Pittman, 671 So.2d 62, 64 (Miss.1996).

¶ 7. Dockens was informed in his plea petition and indictment of the minimum sentence for possession of cocaine. His indictment stated that possession of cocaine is “punishable by imprisonment not less than two (2) years nor exceeding eight (8) years.” His plea petitions for the possession charges stated the maximum punishment the court could impose was eight years and the minimum punishment was two years. Therefore, the trial judge’s failure to verbally state the minimum sentence during the plea hearing was harmless. Thompson, 724 So.2d at 1073 (¶ 14).

¶ 8. Dockens’ plea petitions for the grand larceny charges did not state the minimum punishment for grand larceny. However, Mississippi Code Annotated Section 97-17-41 (Supp.2003) does not provide a minimum sentence for grand larceny. Since this statute sets no minimum penalty, the trial judge was not obligated to inform Dockens of the minimum sentence for grand larceny. Bevill v. State, 669 So.2d 14, 18 (Miss.1996).

¶ 9. Neither Dockens’ claim that he was not informed of the true charges he faced nor his claim that he was unaware of the minimum sentences are supported by the record. Therefore, these claims are without merit.

2. Involuntary plea

¶ 10. Dockens argues that his plea petitions were involuntary because he was led to believe his sentences would run concurrently. He offers that it was his belief that, due to his sentences running concurrently, he would serve only eight years.

¶ 11. A plea is considered “voluntary and intelligent” if the defendant is advised about the nature of the charge and the consequences of the entry of the plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). The defendant must be instructed that a guilty plea waives his or her rights to a jury trial, to confront adverse witnesses, and to protection against self-incrimination. Id.

¶ 12. Dockens bears the burden of proving by a preponderance of the evidence that he is entitled to post-conviction relief. McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989). “Once the trial judge has determined at a preliminary hearing that a confession is admissible, the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal.” Sills v. State, 634 So.2d 124, 126 (Miss.1994) (quoting Frost v. State, 483 So.2d 1345, 1350 (Miss.1986)). “Such findings are treated as findings of fact made by a trial judge sitting without a jury as in any other context. As long as the trial judge applied the correct legal standards, his decision will not be reversed on appeal unless it is manifestly in error, or is contrary to the overwhelming weight of the evidence.” Foster v. State, 639 So.2d 1263, 1281 (Miss.1994).

¶ 13. The record simply does not support Dockens’ claim that he expected to serve only eight years. Each of Dockens’ plea petitions recited that the recommended sentence would be eighteen years with six years suspended and twelve to serve. Dockens’ trial counsel testified during the evidentiary hearing that he informed Dockens that he would be sentenced to serve twelve years. Dockens received the exact sentence he bargained for, twelve years to serve.

¶ 14. Dockens was fully advised about the nature of the charges and the consequences of his entry of the pleas. In his plea petitions, Dockens affirms that his lawyer fully advised him of the nature of the charges and the possible defenses. Dockens acknowledged that he understood that by pleading guilty he was waiving his right to a jury trial, to cross-examine witnesses, and to protection against self-incrimination.

¶ 15. During the plea hearing, the judge questioned Dockens regarding his age, his ability to read and write, and whether it was his signature on his plea petition. Dockens professed that his lawyer reviewed the petition with him and that he was satisfied with his lawyer’s performance. Dockens responded that he understood the maximum penalty the court could impose on him was eighteen years. He stated that he did not know of any reason why the judge should not accept his pleas. He acknowledged that he was pleading guilty for the sole reason that he was in fact guilty of committing the crimes. The court accepted Dockens’ pleas finding that he was alert, understood the circumstances and the consequences of offering his pleas, and offered the pleas freely and voluntarily after having been advised by competent counsel.

¶ 16. Based on our review of the record, we find that Dockens entered his pleas knowingly, voluntarily, and intelligently. Therefore, the trial judge did not err in accepting Dockens’ pleas.

3. Failure to honor plea agreement

¶ 17. Dockens argues that the circuit court erred by failing to honor the plea bargain agreement. He claims that the district attorney’s office recommended that all three of his sentences run concurrently, but the court did not honor that agreement and required that the sentences run consecutively.

¶ 18. In Moore v. State, 394 So.2d 1336, 1337 (Miss.1981), the court held that if the judge informs the defendant that the judge does not have to accept the recommendation, the judge is not in error for failing to follow the recommendation. Here, the circuit judge informed Dockens that he did not have to accept the recommendation and he could sentence him to the maximum or minimum sentence. Dockens replied that he understood. Therefore, the circuit judge would not be in error for failing to follow the plea agreement.

¶ 19. However, our review of the record reveals that the judge did follow the plea agreement. Each of the plea petitions states the recommendation of eighteen years with six years suspended and twelve to serve. Despite the parties’ confusion over whether to classify the sentences as running concurrently or consecutively, the basis of the recommendation was that Dockens would serve a total of twelve years. Dockens was sentenced to serve the twelve years, as recommended. This assignment of error is without merit.

k. Denial of due process

¶ 20. It appears that Dockens advances two claims in support of his contention that he was denied due process. First, he asserts that he was denied a fair and impartial evidentiary hearing because the judge did not rule on whether the court had violated Uniform Circuit and County Court Rule 8.04. Second, Dockens argues that the judge should have disqualified himself due to an unfair ruling the judge made by stating that Dockens signed three plea agreements stating the exact same language.

¶ 21. Uniform Circuit and County Court Rule 8.04 provides the proper procedures, duties, and safeguards involved in the entry of guilty pleas and in plea bargaining. As we ruled above, the circuit court committed no error in accepting Dockens’ pleas and the basis of the plea bargain was effectuated. Also, nothing in the record suggests the circuit judge had any reason to disqualify himself and the reason Dockens suggests for disqualification is totally devoid of merit. Therefore, this assignment of error is without merit.

5. Ineffective assistance of counsel

¶ 22. Dockens next argues that he was denied effective assistance of counsel. Dockens bases this claim on the fact that his trial counsel did not object when the court sentenced him to serve his three sentences consecutively. Dockens argues that his counsel gave a false statement regarding whether he had written on the plea agreement. Dockens claims his counsel failed to tell the judge about the concurrent agreement. He also notes that his plea petitions contained a recommendation of eighteen years which is more time than possession of cocaine carries.

¶ 23. In order to prevail on his claim, Dockens must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced him in such a way that he was denied a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The counsel’s deficiency is assessed by looking at the totality of the circumstances. Hiter v. State, 660 So.2d 961, 965 (Miss.1995). We, as an appellate court, apply “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Burns v. State, 813 So.2d 668, 673(¶ 14) (Miss.2001).

¶24. Before accepting Dockens’ guilty plea, the judge specifically asked Dockens if he was satisfied with his counsel. Dockens responded in the affirmative. Dockens’ guilty plea petitions also indicate that he was informed of the possible sentence he could receive and that he was satisfied with his counsel’s representation.

¶ 25. Moreover, Dockens has failed to establish that his counsel’s performance was deficient. The basis of the plea bargain was that Dockens would serve twelve years for the charges he faced. The court awarded him eighteen years with six years suspended and twelve years to serve, as was bargained for. Therefore, the failure of Dockens’ counsel to object to his sentence does not constitute deficient performance.

¶ 26. Neither Dockens’ claims regarding his counsel giving false statements, nor the eighteen year recommendation on the plea petitions, establish that his counsel was deficient. The record simply does not support Dockens’ claim that his counsel gave false statements regarding whether he had written on the plea agreement. Although the eighteen year recommendation on each of Dockens’ plea petitions was longer than the maximum sentence for either possession of cocaine or two counts of grand larceny, it is clear that the recommendations were for the total of the charges, not for the total on each charge.

¶ 27. Dockens has failed to show that his counsel’s performance was deficient. Therefore, we find this issue to be without merit.

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

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


source: Caselaw Access Project

author: SOUTHWICK, P. J.,

license: Public Domain

text:
    Alyison Ann (Tarver) ALEXIS, Appellant v. Floyd Lee TARVER, Appellee.
    No. 2003-CA-01644-COA.
    Court of Appeals of Mississippi.
    Aug. 3, 2004.

      Alfred L. Felder, McComb, attorney for appellant.
    Floyd Lee Tarver, appellee, pro se.
    Before SOUTHWICK, P.J., CHANDLER and GRIFFIS, JJ.
   SOUTHWICK, P. J.,

for the Court.

¶ 1. In the parties’ divorce decree, the former wife was granted rehabilitative alimony, contingent on her abandoning the support that was being provided by her new boyfriend. In a subsequent hearing, the chancellor found that the former wife was still being supported by her boyfriend and alimony was therefore not justified. The only issue on appeal is whether alimony should have been awarded. We uphold its denial.

¶ 2. Floyd Lee Tarver and Alyison Ann Tarver, now using her maiden name of Alyison Alexis, were married in 1998. On March 5, 2003, the parties were granted a divorce on the grounds of irreconcilable differences. At the time of the divorce, Alexis was living with her boyfriend, Bo Barnes. She has one daughter, not of her marriage with Tarver, who lives with her.

¶ 3. The final decree of divorce included a provision that Alexis could receive $500 per month for thirty months in rehabilitative alimony. In order to receive that support, however, she had to establish her own residence, “meaning to withdraw herself from her current living arrangement with [Barnes].” This ruling was based on the general principle that alimony is to continue until the recipient either remarries or establishes an equivalent relationship with someone without the benefit of a marriage. The alimony was further based on Alexis’ representation that she would obtain a high school equivalency degree and enroll in community college. This would ultimately make her more readily employable. The final decree also divided the marital property and debts in what the chancellor determined to be a fair and equitable manner.

¶ 4. On March 14, 2003, Alexis filed a notice with the court electing to receive the rehabilitative alimony. Floyd Lee Tarver then filed an objection. He claimed that she had not met the conditions placed on her in order to receive the alimony. He maintained that Alexis continued to live with Barnes. At the time of the final decree of divorce, Alexis lived in Barnes’ home. After the divorce, she moved to a mobile home adjacent to Barnes’ house. Tarver requested that Alexis provide receipts and other proof that she, not Barnes, was responsible for rent and such needs as food, gas, and automobile expenses. The evidence that was provided will be discussed below.

¶ 5. After a hearing, the chancellor found that Alexis’ boyfriend was supporting her and therefore she was not entitled to have her former husband also provide support.

DISCUSSION

1. “Clean hands” doctrine

¶ 6. Alexis contends that Tarver is precluded from objecting to the rehabilitative alimony he was to pay because he does not come to court with “clean hands.” She argues that Tarver was living with a woman at the time of the divorce and he was supporting the majority of this woman’s financial needs. She further argues that Tarver did not make any of the rehabilitative alimony payments until the morning of the hearing. The chancellor found the argument meritless. The sole relevance of Alexis’ relationship with someone else was whether she was receiving support from her new boyfriend. Had it been Alexis who had been ordered to support Tarver, then the former husband’s similar conduct and potential support from a new girlfriend would have been relevant.

2. Rehabilitative alimony

¶ 7. The primary purpose of rehabilitative alimony is to give the former spouse the opportunity to enter the work force. Hubbard v. Hubbard, 656 So.2d 124, 129 (Miss.1995). In the final decree of divorce, the chancellor stated that the rehabilitative alimony that he was considering would allow Alexis to become self supporting without becoming destitute in the process. This type of alimony is similar to periodic alimony and may be modified in the event there is a change in circumstances. Id.; Deborah H. Bell, Alimony-Rehabilitative, 4 Ency. of Miss. Law § 28:53 (Jeffrey Jackson & Mary Miller eds.2001).

¶ 8. Cohabitation with the new partner’s providing support has been found to be a sufficient change in circumstances to terminate the receipt of alimony payments. Hammonds v. Hammonds, 641 So.2d 1211, 1217 (Miss.1994). The recipient of the alimony must establish that there is no mutual support. Scharwath v. Scharwath, 702 So.2d 1210, 1211 (Miss.1997). If the absence of support is shown, then there is the possibility that there has been no change in circumstances that would allow the alimony payments to subside.

¶ 9. The chancellor ordered Alexis to modify her living arrangement in order to receive the rehabilitative alimony. As just described, alimony is usually awarded with the express or implicit qualification that it will be terminated if the recipient remarries or becomes supported in a manner equivalent to a marriage. In the present case, the chancellor concluded that an equivalent relationship already existed and needed to be abandoned. Else, no need for alimony would exist.

¶ 10. A chancellor is given wide discretion in determining alimony. “The court may, in its discretion, having regard to the parties and the nature of the case, as may seem equitable and just, make all orders ... touching the alimony of the wife.” Miss.Code Ann. § 93-5-23 (Supp.2003). When the chancellor was not presented with the usual circumstances, he was justified in adopting somewhat unusual but practical and reasonable means to address them.

¶ 11. Leaving the legal issue, we now examine the factual dispute. Alexis argues that she is no longer cohabiting with Barnes. She has moved into a mobile home on Barnes’ property that is adjacent to his house. She alleges that she is to pay him rent of $400 a month, including utilities. Alexis stated during the hearing that she paid two months’ rent after she received two months of alimony payments from Tarver. She contends that she does not have the means to move anywhere else and that Barnes is the only landlord that would allow her to continue living in the home in the event she is unable to pay rent. As proof that Alexis has moved into her own residence, she produced a cable television bill, a package label, a hospital bill, and an ambulance bill addressed to her at the mobile home address.

¶ 12. Alexis’ boyfriend, Barnes, is her alleged employer, and she works cleaning construction sites. That income is irregular because projects are delayed due to weather.

¶ 13. These are the findings of the chancellor on the question on the support that the boyfriend Bo Barnes was making to Alexis:

[Alexis] admits that since the time of the divorce and more importantly, since the time of her “election [to receive alimony]” she has used Bo’s car almost exclusively; she has continued to maintain a substantial portion of her personal property in Bo’s home; he has provided meals for her and she for him on a regular basis; she has washed Bo’s clothes, cooked much of his food, cleaned his house, slept with him most of the time, had sex with him, and freely gone from her house to his and he from his house to hers. , She stated that her relationship may be like a marriage but she was not ready to make that commitment.

¶ 14. The chancellor concluded that Alexis “continues to be substantially dependent” upon her boyfriend, both financially and otherwise. The court also found that Alexis had not shown that she was a legitimate employee of the boyfriend’s business, as the business did not record her as an employee in any way. Any money she received from the boyfriend, therefore, was not reasonably shown to be wages for work in his business.

¶ 15. At the time of the divorce, the chancellor acknowledged Alexis’ financial situation was “meager or worse.” He further stated that “the difficult financial circumstances that [Alexis] found herself in essentially forced her in the position of being financially vulnerable and because of such found herself having to take what she could in regard to potential living arrangements for her and her daughter.” Thus, the chancellor was well aware of Alexis’ financial straits.

¶ 16. With this awareness, he still expected that after the divorce decree that Alexis would “withdraw herself from her current living arrangements with [Barnes].” If she did not do so, the chancellor found that “the need for temporary rehabilitative alimony does not exist because she receives many of those things that she would otherwise need from [Barnes] and therefore is not entitled to such alimony.”

¶ 17. Alexis maintains that she did exactly what the chancellor stated, she maintained her own residence. After the hearing, the chancellor concluded Alexis had not established a separate residence and continued to be supported by Barnes. She admitted that she used Barnes’ automobile; she kept her personal belongings at his home; they provided meals for each other; she washed his clothes, cleaned his house, cooked his meals; they spent most nights together and had an intimate relationship; and they freely came and went to each other’s homes.

¶ 18. Under Scharwath, it is Alexis’ responsibility to establish that she and Barnes were not mutually supportive of each other. Scharwath, 702 So.2d at 1211. The chancellor concluded that she was still receiving substantial financial support from Barnes. The fact that Alexis moved from a larger house to a smaller trailer located on the same property was not enough to demonstrate that she had in fact established a separate residence. What she admitted in the hearing supports this contention. Alexis could allow her rent to lapse and suffer no adverse consequences.

¶ 19. Therefore, it was not an abuse of discretion for the chancellor to find that Alexis was not entitled to rehabilitative alimony. We affirm.

¶ 20. THE JUDGMENT OF THE CHANCERY COURT OF WALTHALL COUNTY IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES, P.j’, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: SOUTHWICK, P.J.,

text:
    Larry MITCHELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CP-01001-COA.
    Court of Appeals of Mississippi.
    Aug. 3, 2004.

      Larry Mitchell, appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before SOUTHWICK, P.J., CHANDLER and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Larry Mitchell’s motion to vacate judgment of conviction and sentence was denied in circuit court. Aggrieved, Mitchell appeals to this Court. We find no error and affirm.

¶ 2. Mitchell was convicted in 1996 of burglary of an inhabited dwelling at night while armed with a deadly weapon, aggravated assault of Willie Keeler, and possession of a firearm by a convicted felon. Mitchell appealed to this Court. We reversed and rendered as to the burglary conviction and affirmed the remaining two charges. We found that Mitchell was incapable of committing burglary since the dwelling in question was his own home. Mitchell v. State, 720 So.2d 492, 494-95 (Miss.Ct.App.1998). The burglary conviction was reversed and judgment entered for Mitchell on that count, while the remaining convictions were affirmed. Id. at 495.

¶ 3. Mitchell’s later motion for post-conviction relief was dismissed by the circuit court. On appeal to the Supreme Court, the dismissal was vacated and remanded. The Supreme Court granted Mitchell’s request for leave to proceed in the trial court and ordered an evidentiary hearing.

¶4. Mitchell’s evidentiary hearing was on the issue of ineffective assistance of counsel. The circuit court appointed Mitchell an attorney for this hearing. Those testifying included Mitchell and the attorney representing him at his initial trial and his appeal before this Court, Allan Shackelford. The circuit court found that Mitchell had received effective assistance and denied Mitchell’s motion for post-conviction relief.

DISCUSSION

1. Ineffective assistance of counsel during post-conviction relief hearing

¶ 5. Mitchell argues that his appointed counsel was ineffective during his hearing for post-conviction relief. Mitchell claimed that he wished to present twelve errors to the judge and his counsel failed to do so during the hearing. Since this was a post-conviction evidentiary hearing, Mitchell had no constitutional guarantee to appointed counsel. Nance v. State, 766 So.2d 111, 114 (Miss.Ct.App.2000). Without a constitutional right to counsel, there can be no deprivation of effective assistance of counsel. Harris v. State, 704 So.2d 1286, 1289 (Miss.1997), relying on Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982). Therefore, this argument is without merit.

2. Ineffective assistance of counsel at trial and direct appeal

¶ 6. Mitchell also argues that he was not given effective assistance during his 1996 trial and appeal. He raises numerous alleged failures committed by counsel. Mitchell must show both that counsel’s performance was deficient and this deficiency was prejudicial to him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985). There is a strong but rebuttable presumption that counsel’s decisions were sound trial strategy. Leatherwood, 473 So.2d at 969. To overcome the presumption, Mitchell must show that but for counsel’s deficiency, a different result would have occurred. Id. at 968.

¶ 7. Mitchell claims he had twelve issues he wished to be raised during his evidentiary hearing. This list appeared in a letter from his appointed counsel for the evidentiary hearing. He contends that five of these issues were not presented before the circuit judge. After examination of the transcript, we find only one issue that was not discussed during the hearing. The omitted issue was whether self-defense should have been raised as a defense during trial. We also note that twice during the hearing, counsel asked Mitchell if there were any more errors to discuss during the hearing. Mitchell answered that there were not.

¶ 8. We have obtained a copy of the transcript from the original trial. One of Mitchell’s defenses was that his gun was fired after it had been hit by a bullet from Willie Keeler’s weapon. Mitchell’s firearm, with a handle that was broken allegedly as the result of Keeler’s shot, was admitted into evidence. This supported his theory that his gun was hit by a bullet and he fired as a result of the contact. Self-defense would have been an alternate theory as to why a bullet was fired from Mitchell’s gun. We find that the attorney’s decision to focus on the accidental discharge for which some evidence existed, rather than on self-defense, was within his professional discretion as to the theory of defense that would be most reasonable and believable to the jury. It was sound trial strategy under Leatherwood to focus on this theory. To argue self-defense as well would have presented an inconsistent theory that potentially would have made both unbelievable.

¶ 9. The other issues Mitchell raised do not prove that, but for a deficiency on the part of his attorney, there would have been a different outcome. These issues included statements made during closing argument and failure to make objections. During his closing statement, the attorney stated that it would be proper for the jury to convict Mitchell of being a felon in possession of a firearm. Mitchell had clearly admitted to having a weapon and that he was in fact a convicted felon. This too is deemed to be trial strategy. This count was likely the less severe of the three charges. His attorney was focusing on exonerating Mitchell on the two more serious charges.

¶ 10. At trial, attorney Shackel-ford was active in the jury selection and used his peremptory strikes. Mitchell’s counsel examined and cross-examined witnesses. He participated in the selection of jury instructions. He gave a thorough closing statement. He made a motion for a directed verdict of not guilty on each of the three counts against Mitchell. He polled the jury after it had given its verdict. Further, he timely appealed. Shackelford was not ineffective in his representation at trial.

¶ 11. Mitchell claims that his attorney was ineffective on appeal. However, his attorney filed a brief providing the Court with logical arguments. The brief resulted in this Court’s reversing one of the charges on which Mitchell had been found guilty. Mitchell has not convinced us that but for his counsel’s deficiency, a different result would have occurred. We affirm.

¶ 12. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO COA-HOMA COUNTY.

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


author: IRVING, J.,

text:
    Tonoa (Malone) DODSON, Appellant, v. Marvin D. DODSON, Appellee.
    No. 2003-CA-00155-COA.
    Court of Appeals of Mississippi.
    Aug. 3, 2004.

      Erika Danita Suttlar, attorney for appellant.
    Sidney Franklin Beck, Jr., Olive Branch, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. Marvin Dodson filed a petition to modify decree in which he claimed that a material change in circumstances had occurred that had affected his income. He requested a decrease in his child support payments. Tonoa (Malone) Dodson, his former wife, answered and filed what she denoted as a “counter-petition.” In her petition, she denied Marvin’s assertion that a modification was warranted and requested reasonable attorney’s fees. The Chancery Court of DeSoto County granted Marvin’s request to modify but also granted Tonoa’s request for attorney’s fees. Tonoa, feeling aggrieved by the decision of the chancellor, appeals and assigns as error four issues which we aggregate into a single question: whether the chancery court erred in modifying the amount of child support Marvin was required to pay pursuant to the prior divorce decree.

¶ 2. Ascertaining no error, we affirm.

FACTS

¶ 3. Marvin Dodson and Tonoa (Malone) Dodson were lawfully married on April 13, 1991. They were granted a divorce on December 3, 2001, on the ground of irreconcilable differences. Incorporated into the divorce decree were the terms and conditions of the parties’ separation agreement in which Marvin agreed to pay child support in the amount of $1,000 per month.

¶ 4. While he was married, Marvin worked as a machine operator at Cargill Incorporated and also maintained a car washing business. Marvin had several car-washing contracts with post offices in northern Mississippi and the metropolitan Memphis area. He also had a contract with St. Luke Church of God in Christ to periodically wash the church’s vans. Additionally, he periodically washed private vehicles.

¶ 5. In January of 2002, Marvin was informed by the Germantown and Collier-ville, Tennessee post offices that, in order to maintain his contracts with them, he needed to purchase water retrieval equipment. Marvin did not purchase this equipment. Consequently, in December 2002, he was notified by the Germantown post office that his contract was terminated because “environmental regulations require that washing services must have water retrieval equipment when [sic] enables them to keep used water and washing materials out of ground water and sewers.”

¶ 6. On April 2, 2002, Marvin filed a petition to modify the divorce decree, claiming that there had been a material change in circumstances concerning his income level. He specifically stated that since the final divorce decree was entered, he had lost one of his jobs and that his income had decreased.

¶ 7. Tonoa filed an answer and what she called a “counter-petition.” In this petition, she denied all allegations in Marvin’s petition and asked that his petition be dismissed. She also asked for an increase in child support, asserting that there had been a material and substantial change in circumstances of the children, justifying an increase. She requested reasonable attorney’s fees for defending against Marvin’s petition.

¶ 8. The trial court denied Tonoa’s request for modification and granted Marvin’s request, reducing his child support obligation to $593 per month. The trial court also ordered Marvin to pay Tonoa $1,900 in attorney’s fees.

DISCUSSION AND ANALYSIS OF THE ISSUE

¶ 9. Tonoa first argues that the trial court erred in modifying the amount of child support that Marvin was required to pay. She explains that Marvin’s loss of contracts was voluntary in that he failed to purchase the equipment necessary to maintain the contracts. She further asserts that Marvin’s loss of contracts did not impede his ability to pay his monthly child support.

¶ 10. Marvin counters that the loss of his contracts was involuntary, that this loss substantially affected his income, and that a modification was warranted under the circumstances.

¶ 11. After hearing and reviewing all the evidence, the chancellor found that a substantial and material change had occurred in Marvin’s income to warrant a modification of child support. Specifically, the chancellor found that' Marvin’s car washing business was “greatly curtailed and all but eliminated” when his main employer, the U.S. Postal Service of Ger-mantown, refused to continue his employment. According to the chancellor, there was no evidence that, at the time of the divorce, the postal service would, at some point in the future, disallow Marvin’s services. Consequently, pursuant to Mississippi Code Annotated section 43-19-101 (Rev.2000), the chancellor set Marvin’s child support at $593 a month, or twenty-two percent of his adjusted gross income.

¶ 12. We find that the chancellor did not err when he found that a substantial and material change had transpired in Marvin’s employment as to warrant a reduction in his child support payments.

¶ 13. The provisions of an agreement dealing with child support, which are incorporated in a final decree of divorce, may be modified under the proper circumstances. Brown v. Brown, 566 So.2d 718, 721 (Miss.1990). “A child support award can be altered if it can be shown that there has been a substantial or material change in the circumstance of one or more of the interested parties: the father, the mother, and the child or children, arising subsequent to the entry of the decree to be modified.” Caldwell v. Cald well, 579 So.2d 543, 547 (Miss.1991) (quoting Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983)). The change must occur as a result of after-arising circumstances of the parties not reasonably anticipated at the time of the agreement. Lahmann v. Hallmon, 722 So.2d 614, 622(¶27) (Miss.1998).

¶ 14. The evidence demonstrates that Marvin maintained both his job with Car-gill Incorporated and his car washing business during the latter part of his marriage and after his divorce for a period of time. As already mentioned, Marvin’s car washing business involved contracts with several post offices. After the divorce, the post offices required him to purchase a water retrieval system to maintain his contracts with them. Marvin did not purchase the equipment.

¶ 15. Tonoa contends that Martin had the financial ability to purchase the equipment but chose not to do so. Consequently, she argues that Marvin voluntarily reduced his income. As proof of Marvin’s ability to purchase the equipment, Tonoa points to the fact that Marvin purchased a car after being notified of the requirement for the water retrieval system. Tonoa also argues that the chancery court erred when it failed to consider Marvin’s earning capacity before allowing modification of the child support. Tonoa cites Selman v. Selman, 722 So.2d 547 (Miss.1998) and White v. White, 722 So.2d 731 (Miss.Ct.App.1998) as authority for her position.

¶ 16. Marvin counters that the chancery court did not err when it did not consider his earning capacity outside of his employment at Cargill and his miscellaneous cash from wash jobs because he was neither underemployed by his own voluntary action or unemployed.

¶ 17. In Selman, the father, a former restaurant manager earning $26,000 a year, quit his job to become a'minister and was making only $700 a month from that job. Selman, 722 So.2d at 550 (¶ 6). After reviewing the chancellor’s ambiguous findings for child support, our supreme court remanded the case and instructed the chancellor to consider the father’s earning capacity, rather than his actual earnings, in setting child support. Id. at 555 (¶ 36).

¶ 18. In White, this court upheld a support order based upon the chancellor’s assessment of an unemployed father.

¶ 19. We find that Selman and White are distinguishable from our case. First, Selman, unlike our case, dealt with a father who voluntarily left his higher paying job for a preaching job that paid substantially less. As we found earlier, Marvin did not voluntarily quit his job. Instead, the post offices released Marvin when he did not purchase the equipment that they required of him as a condition of maintaining his employment. Secondly, White dealt with an unemployed father. Here, Marvin was not unemployed but has maintained his employment at Cargill, the same job he possessed during both the marriage and the period of time of the divorce proceedings. He also continued in this job following the divorce. In fact, he was still employed in this job at the time of the filing of the petition for modification.

¶ 20. The chancellor did not address whether Marvin could have purchased the water retrieval equipment or Marvin’s wage earning capacity. On these facts, we find that the chancellor did not err in failing to do so. There is no evidence that Marvin conspired with the post offices to impose the requirement that the water retrieval equipment be purchased as a condition of continued employment, and, as the chancellor found, there is no evidence that Marvin knew, at the time of the divorce, that the postal service would disallow his services. We, therefore, can not say that the chancellor clearly erred or was manifestly wrong when he did not consider Marvin’s earning capacity outside of his employment at the time of the modification proceeding.

¶ 21. THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES, P.J., LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. SOUTHWICK, P.J., NOT PARTICIPATING.

      . The chancellor found that Marvin's after-tax income at Cargill Incorporated, his primary employment, for a ten-month period for 2002 was $26,482. He further found that Marvin had earned $1,825 during a three-year period prior to the modification proceedings from his employment with St. Luke Church and that his after-tax income from this venture was approximately $1,500. The chancellor concluded that Marvin’s total after-tax income (for a ten month period) in 2002 was $26,982 or $2,698 a month.

      . According to the record, Marvin, purchased a 1994 model year vehicle. The value of the vehicle is not stated.


text:
    Charles E. STEWART, Jr. a/k/a Charles Edward Stewart, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-02143-COA.
    Court of Appeals of Mississippi.
    Aug. 3, 2004.

      M.A. Bass, Jr., attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. Stanley E. Stewart, Jr. was convicted in the Circuit Court of Copiah County of three counts of automobile burglary and sentenced to three consecutive three-year terms in the custody of the Mississippi Department of Corrections. Aggrieved by the judgment below, Stewart has appealed and presents three issues: (1) whether the circuit court erred in not granting him funds to hire an expert witness in the forensic science of handwriting, (2) whether the circuit court erred when it overruled his motion to suppress concerning a statement he made which was taken by Investigator Milton Twiner, and (3) whether the circuit court erred in not granting his motions for directed verdict and new trial?

¶ 2. Ascertaining no error, we affirm.

FACTS

¶ 3. During the morning of June 14, 2002, an automobile burglary transpired at the residence of Jan Purvis. The Purvis residence is located on Extension Street, across from a library, in Hazlehurst, Mississippi. Purvis, the owner of the vehicle, reported that a cellular telephone was taken from the automobile.

¶ 4. During the early morning hours of June 26, 2002, a series of automobile burglaries occurred on Extension Street. A white Ford Escort owned by Donna Lewis was burglarized, but nothing was taken. A blue Ford Expedition owned by Robert and Renee Harrison was also burglarized and a cellular telephone charger, an umbrella, and a briefcase were removed from the automobile. Finally, a 2000 F250 pickup truck owned by Jim Uselton was burglarized. A cellular telephone was taken in-this burglary.

¶ 5. Meanwhile, the Hazlehurst Police Department was assisting with a federal investigation of a telephone fraud seam involving the illegal activation of stolen cellular telephones in the area. This investigation led the police to the appellaht, Charles E. Stewart, Jr., who was suspected of having possession of one of these stolen telephones but was not, at that time, a suspect in the telephone fraud investigation. On June 27, 2002, police officers went to Stewart’s place of employment to talk to him about their investigation. After talking to the police officers about a cellular telephone in his possession and being informed that the telephone was possibly stolen, Stewart relinquished to police possession of the telephone and a cellular telephone charger which was in his car and voluntarily accompanied the officers to the police station. ■

¶ 6. At the station, police officers had in custody a primary suspect in the federal investigation. This suspect implicated Stewart as being involved in the telephone scam. Thereafter, the police officers called Stewart into the room with the suspect. The officers then read Stewart his rights, and Stewart signed both a rights and waiver form. While in the presence of several officers, Stewart made statements claiming responsibility for the automobile burglaries that occurred on Extension Street in June of 2002, gave descriptions of those vehicles, and described what items he took from the automobiles. Officers then attempted to obtain a recorded statement from Stewart reflecting his earlier statements; however, Stewart declined to give a recorded statement.

¶ 7. Stewart was arrested, indicted, and tried on three counts of automobile burglary. A jury found him guilty of all three counts.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Motion for Forensic Expert

¶ 9. Stewart first contends that the trial court committed reversible error in denying his motion for funds to hire a handwriting expert. He explains that his indigence prevented him from hiring an expert and that, to ensure that he was not deprived of state and federal due process of law, the circuit court should have granted his request. Stewart cites Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) as authority for his position that experts of all kinds should be made available to indigent defendants when they are unable to afford such experts themselves.

¶ 10. We first review Ake as authority for Stewart’s position. In Ake, the defendant was charged with two counts of murder in the first degree and two counts of shooting with intent to kill. Id. at 72, 105 S.Ct. 1087. The defendant, an indigent, raised an insanity defense and later moved at the pretrial conference for the State to either arrange for a psychiatrist to perform an evaluation on him or to provide funds so he could hire a psychiatrist. Id. The circuit court denied his motion for a psychiatric evaluation at state expense and proceeded with his trial. Id. During trial, no evidence was presented as to what the defendant’s state of mind was at the time of the offense. The defendant was subsequently convicted on all counts. Id. After his conviction, the defendant filed an appeal, arguing that, when an indigent defendant’s sanity, at the time of the commission of the offense, is seriously in question, the constitution requires that he has access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition. Id. at 70, 105 S.Ct. 1087.

¶ 11. The court held that “when a defendant demonstrates to the trial judge that [the defendant’s] sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. at 83, 105 S.Ct. 1087.

¶ 12. Clearly Ake applies in situations where the sanity of the defendant is at issue. However, the Constitution does not require a state to furnish an indigent defendant with expert or investigative assistance upon demand. Weatherspoon v. State, 732 So.2d 158, 160(¶6) (Miss.1999) (citing Johnson v. State, 476 So.2d 1195, 1202 (Miss.1985)). Our supreme court has further analyzed an indigent defendant’s right to expenses to hire experts: “An indigent’s right to defense expenses is ‘conditioned upon a showing that such expenses are needed to prepare and present an adequate defense.’ Concrete reasons for requiring an expert must be provided by the accused.” Howell v. State, 860 So.2d 704, 721(¶ 42) (Miss.2003). “There is no single test for determining whether the services of an investigator or an expert are necessary; that decision will depend on the facts and circumstances of the particular case and must be committed to the sound discretion of the court to which the request for expenses is directed.” Weath erspoon, 732 So.2d at 160(¶ 7) (citing Johnson, 529 So.2d at 590 (Miss.1988)).

¶ 13. Stewart filed a motion for funds to hire experts and investigative assistance. In his motion, he contended that he was in need of an expert “to show that he did not sign a waiver of his rights prior to giving a statement.” The circuit judge heard Stewart’s motion during the pretrial hearing. The State brought forth Officers Les Tan-nehill, Ellis Stuart, and Milton Twiner, each of whom affirmed that they personally witnessed Stewart sign the waiver of rights form. Stewart testified that he did not sign the form. After hearing all of the evidence, the following exchange occurred:

The Court: The issue in this case is not whether or not Mr. Stewart signed the document. The issue is whether or not the Court should appoint a handwriting expert to examine documents. Now, is there a standard upon which the Court should base its determination?
The State: That would be the preponderance of the evidence, Your Honor.
The Court: I can’t hear you.
The State: That would be a preponderance of the evidence, Your Honor.
The Court: Preponderance of the evidence of what?
The State: Of the standard of whether there is substantial evidence to necessitate the need of a handwriting analysis.
The Court: I don’t see any — the Court doesn’t see any indication that this is anybody’s signature other than Mr. Stewart’s. If that’s what I’m supposed to decide here, I don’t see any indication whatsoever, no evidentiary basis for the Court to appoint an independent analyst, whatever you call it. So I’ll deny your motion, counsel.

¶ 14. Before we are authorized to overturn a trial court’s denial of a request for expert assistance at public expense, we must find an abuse of discretion so egregious as to deny due process rendering a trial fundamentally unfair. Fisher v. City of Eupora, 587 So.2d 878, 883 (Miss.1991). While it is true that Stewart denied signing the waiver of rights form, the overwhelming evidence was that he did. Under these circumstances, we cannot say that Stewart offered concrete reasons to justify the provision of expert consultation at public expense. Therefore, we find that the trial court’s denial of Stewart’s request for expert assistance was not an abuse of discretion resulting in a denial of due process. This issue is without merit.

2. Motion to Suppress

¶ 15. Stewart next argues that the circuit court erred when it overruled his motion to suppress the incriminating oral statements which he gave to Officer Milton Twiner. In his motion to suppress, he alleged that the statements he made to police officers were not voluntarily made. He subsequently renewed his motion to suppress at the pretrial hearing in which he asserted that the police violated his Miranda rights. He also alleged, as previously noted, that he did not sign the waiver of rights form. He explains that the statements being used against him were made after he had requested assistance of counsel. He alleges that he was questioned by Twiner after he had advised Twiner that he wanted a lawyer. The questioning, according to Stewart, violated his Sixth Amendment right to counsel.

¶ 16. The State presented the testimony of all of the law enforcement officers who were present when the statements were allegedly made. Each of whom testified that the statements had been freely and voluntarily given by Stewart after he had been advised of and waived his rights. The trial court found that Stewart “knowingly and voluntarily waived his constitutional rights, and knowingly and voluntarily proceeded with a statement” before changing his mind about giving a recorded version.

¶ 17. In Moody v. State, 841 So.2d 1067 (Miss.2003), our supreme court observed the well established standard for appellate review of a trial court’s decision overruling a motion to suppress:

Regarding the overruling of a motion to suppress by the circuit court, our scope of review is limited. “Once the trial judge has determined at a preliminary hearing, that a confession is admissible, the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal. Such findings are treated as findings of fact made by a trial judge sitting without a jury as in any other context. As long as the trial judge applied the correct legal standards, his decision will not be reversed on appeal unless it is manifestly in error, or is contrary to the overwhelming weight of the evidence. Where, on conflicting evidence, the court makes such findings, this Court generally must affirm.”

Moody, 841 So.2d at 1086 (¶ 53)(citations omitted).

¶ 18. We find that the circuit court did not err in overruling Stewart’s motion to suppress. While Stewart flatly denied signing the waiver and rights forms, as previously observed, Officers Tannehill, Stuart, and Twiner affirmed that they witnessed Stewart sign both forms. Moreover, Officer Twiner testified that no promises or threats were made to Stewart in conjunction with Stewart’s signing of the forms. We, therefore, find no merit in Stewart’s arguments on this issue.

3. Sufficiency of the Evidence/New Trial

¶ 19. Stewart finally argues that the evidence was insufficient to support his guilty verdict. He also proclaims that the jury’s verdict was against the overwhelming weight of the evidence and that a new trial is warranted.

¶20. The standard of review for a motion for directed verdict and motion for a new trial both are soundly embedded in our case law. A directed verdict, judgment notwithstanding the verdict and a request for peremptory instruction all challenge the legal sufficiency of the evidence presented at trial. Shelton v. State, 853 So.2d 1171, 1186(¶48) (Miss.2003). The standard of review for the legal sufficiency of the evidence is well-settled:

[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.

Franklin v. State, 676 So.2d 287, 288 (Miss.1996) (quoting Wetz v. State, 503 So.2d 803, 808 (Miss.1987)). The appellate court properly reviews the ruling on sufficiency of the evidence on the last occasion the challenge was made in the trial court. Shelton, 853 So.2d at 1186(¶ 48).

¶ 21. A motion for a new trial, however, simply challenges the weight of the evidence. Howell, 860 So.2d at 764 (¶ 212). “This Court will reverse a trial court’s denial of a motion for a new trial only when it amounts to an abuse of the court’s discretion. A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice.” Buskirk v. Elliott, 856 So.2d 255, 266(¶ 33) (Miss.2003) (citations omitted). Factual disputes are properly resolved by a jury and do not mandate a new trial. Holloway v. State, 809 So.2d 598, 606(¶22) (Miss.2000).

¶ 22. The evidence in this case is more than sufficient to support Stewart’s guilt of the crimes with which he was charged. Officers Tannehill, Stuart, and Twiner testified that they went to Stewart’s place of employment to question him concerning a cellular phone, which was possibly in his possession, that was connected to a telephone fraud investigation. The officers stated that Stewart acknowledged that he had a cellular phone in his possession, retrieved the telephone from his car, and gave it to them. They further explained that Stewart allowed them to search his car and that they found and retrieved a telephone charger adapter. According to the officers, Stewart voluntarily came to the police station where officers continued to question him concerning the federal investigation. They testified that Stewart eventually gave information on other crimes which the department was investigating. The officers explained that Stewart was given his Miranda warnings upon their receipt of this additional information.

¶ 23. Officers Stuart, William Chrisler, and Twiner testified that Stewart gave incriminating statements in which he acknowledged that he burglarized several automobiles, gave descriptions of those vehicles, and described what items he took from the automobiles. According to the officers, Stewart stated that he obtained the telephone, which the officers retrieved from him, from a car at a residence across from the Hazlehurst library. He also stated to the officers that he obtained the telephone charger from a sports utility vehicle.

¶ 24. We next address Stewart’s argument that he should have been granted a new trial. We have examined the record and find no evidence that Stewart ever made a motion for a new trial. It is clear that he did not orally request a new trial after the jury verdict was delivered. The only mention in the record that a motion for new trial was ever filed is in the notice of appeal. The notice of appeal recites that a motion for new trial was filed on November 28, 2002; however, the general docket record does not reflect that the filing was ever made. The matter of evi-dentiary weight is waived by the failure to move for a new trial. Jackson v. State, 423 So.2d 129, 132 (Miss.1982). However, as our prior discussion of the evidence reveals, there is no merit to this issue. Allowing the verdict to stand will not, in our view of the evidence, sanction an unconscionable injustice.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY OF CONVICTION OF THREE COUNTS OF BURGLARY OF AN AUTO AND SENTENCE OF THREE YEARS ON EACH COUNT, WITH THE SENTENCES TO RUN CONSECUTIVELY TO EACH OTHER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

KING, C.J., BRIDGES, P.J., LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. SOUTHWICK, P.J., NOT PARTICIPATING.

      . Chrisler was the assistant chief of police for the city of Hazlehurst. He was not present when Conerly was given his Miranda rights. However, he testified that he was present when Conerly gave the incriminating statements.


author: KING, C.J., BRIDGES, P.J.,

text:
    Mary Alice McCLELLAND, Appellant, v. John Anthony McCLELLAND, Appellee.
    No. 2002-CA-01635-COA.
    Court of Appeals of Mississippi.
    Aug. 3, 2004.

      Renee M. Porter, attorney for appellant.
    Candance L. Rickman, and William E. Andrews, Purvis, attorneys for appellee.
   KING, C.J.,

for the Court.

¶ 1. The Chancery Court of Lamar County granted John Anthony McClelland a divorce from Mary Alice McClelland on the ground of adultery. Mary Alice McClelland appeals the decision of the chancery court and raises the following issues as errors:

I. Whether the chancellor erred by failing to make findings of fact or conclusions of law in granting Mr. McClel-land a divorce on-the ground of adultery.
II. Whether the chancellor erred by failing to make findings of fact or conclusions of law in distributing the marital assets of the parties.

FACTS

¶ 2. Mary Alice McClelland and John Anthony McClelland were married on April 28, 1995, in Lamar County. No children were born of the marriage. Following their marriage, the couple resided in Lamar County in a home owned by Mrs. McClelland prior to the marriage.

¶ 3. There is some discrepancy in the record as to when the parties separated. Mrs. McClelland testified that they separated in April 2000, while Mr. McClelland indicated a separation date of June 1999. Both parties agreed that Mr. McClelland’s construction work kept him away from home for long periods of time.

¶ 4. On November 3, 2000, Mr. McClel-land filed a complaint for divorce in the Chancery Court of Lamar County, Mississippi on the grounds of habitual cruel and inhuman treatment, adultery, and alternatively, irreconcilable differences. On March 22, 2001, Mrs. McClelland filed her response.

¶ 5. During the August 15, 2002 trial, Mr. McClelland testified to having learned from Mrs. McClelland’s brother of her extra-marital affair with a man named Scott Jacobson. Mr. McClelland stated, that since that time, he has not lived with Mrs. McClelland and has not forgiven her. Cindy Holloway (Mrs. McClelland’s ex-sister-in-law) testified that Mrs. McClelland had a relationship with Scott Jacobson while living with Mr. McClelland.

¶ 6. Mrs. McClelland acknowledged having engaged in sexual intercourse with Jacobson one time. However, she claimed to have reconciled with Mr. McClelland after that event.

¶ 7. The chancellor determined that Mr. McClelland met his burden of proof in showing that Mrs. McClelland had committed uncondoned adultery and granted the divorce on that ground. The chancellor equally divided the marital assets accumulated by the parties during the marriage.

¶ 8. Mary Alice McClelland now appeals the chancellor’s decision to grant John Anthony McClelland a divorce on the, ground of adultery and to the division of the marital assets. Mr. McClelland did not file a brief in this appeal.

STANDARD OF REVIEW

¶ 9. While “[ajutomatic reversal is not required where the appellee fails to file a brief,” Selman v. Selman, 722 So.2d 547(¶ 13) (Miss.1998), the supreme court has held that the “ ‘[flailure to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of appealing party, that there was no error.’ ” Id.

¶ 10. This Court will not disturb a chancellor’s factual findings “unless the court’s actions were manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard.” Wright v. Wright, 737 So.2d 408(¶ 5) (Miss.Ct.App.1998).

ISSUES AND ANALYSIS

I.

Whether the chancellor erred by failing to make findings of fact or conclusions of law when he granted Mr. McClelland a divorce on the ground of adultery.

¶ 11. Mrs. McClelland alleges that the chancellor erred in granting Mr. McClelland a divorce on the ground of adultery because he failed to make findings of fact or conclusions of law.

¶ 12. A party must establish his or her claim of adultery by clear and convincing evidence. Mitchell v. Mitchell, 767 So.2d 1037(¶ 5) (Miss.Ct.App.2000). “There must be clear and convincing evidence both of an adulterous inclination and a reasonable opportunity to satisfy that inclination.” Id. Adultery may be proven by admissions or other evidence. Holden v. Frasher-Holden, 680 So.2d 795, 799 (Miss.1996).

¶ 13. Where there is an allegation of adultery, there is an affirmative requirement that the chancellor set forth specific findings of fact and conclusions of law in this regard. Dorman v. Dorman, 737 So.2d 426(¶ 7) (Miss.Ct.App.1999). Because the chancellor failed to make specific findings of fact on this issue, this Court will look at the record de novo and determine whether substantial evidence exists to sustain a divorce granted on the ground of adultery. Holden at 798-99.

¶ 14. The chancellor heard testimony from Mrs. McClelland, who admitted to sexual intercourse with Scott Jacobson, while separated from Mr. McClelland, stating:

Q. All right. During the time you were separated from him in '97, is that when you had sexual intercourse with Scott Jacobson?
A. Yes.
Q. Okay, and tell the Court what happened then.
A. So I fell asleep in the chair next to the phone waiting for them to page me back, and I woke up, and Scott was on top of me with no clothes on, and it just happened.

Mrs. McClelland suggests that her infidelity was forgiven and the parties reconciled.

¶ 15. Mr. McClelland testified that Mrs. McClelland’s brother told him about the extra-marital affair between his sister and Scott Jacobson. He denied having forgiven or condoned Mrs. McClelland’s transgression, and stated he has not lived with her since becoming aware of that transgression.

¶ 16. Cindy Holloway, Mrs. McClel-land’s ex-sister-in-law, testified that Mrs. McClelland and Scott Jacobson had a relationship during the time Mr. and Mrs. McClelland were living together. She indicated that the parties had slept together in her home.

¶ 17. While the chancellor failed to make specific findings of fact, there is sufficient evidence in the record, beginning with Mrs. McClelland’s admission of at least one act of extra-marital intercourse, to support the grant of a divorce on the ground of adultery.

II.

Whether the chancellor erred by failing to make findings of fact or conclusions of law in distributing the marital assets of the parties.

¶ 18. Mrs. McClelland contends that the chancellor erred when he failed to make findings of fact or conclusions of law regarding the distribution of the marital assets, thereby resulting in an inequitable distribution of the assets.

¶ 19. Marital assets include those items acquired or accumulated during the course of the marriage and are subject to an equitable distribution by the chancellor. Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). Marital assets acquired during the course of the marriage may be equitably divided “unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Id. at 914. A chancellor should consider the following principles when attempting to effect an equitable division of marital property:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). “Failure to make findings of fact and conclusions of law as required by Ferguson is reversible error.” Lauro v. Lauro, 847 So.2d 843(¶8) (Miss.2003). However, the supreme court has noted that it will reverse and remand “only where the failure to make sufficient findings of fact and conclusions of law constitute manifest error.” Selman v. Selman, 722 So.2d 547(¶ 29) (Miss.1998).

¶ 20. In his order, the chancellor stated, “[t]he parties during the course of the marriage, accumulated certain property which is found by this Court to be marital property, and is subject to a[n] equitable distribution in this cause.” The chancellor then listed and divided the marital property •

¶ 21. While a specific mention of the Ferguson factors is not present, we find that the chancellor after hearing the evidence presented made an equal distribution of the marital assets. The supreme court has indicated that it has “never held that a chancellor is not permitted to divide marital property equally where he deems it equitable to do so.” Selman v. Selman, 722 So.2d 547 at (¶ 15). Therefore, we affirm the chancellor’s decision regarding the equitable distribution of the marital estate.

¶ 22. THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

SOUTHWICK, P.J., LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. BRIDGES, P.J, CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, J.

BRIDGES, P.J.,

Concurring:

¶ 23. In my concurrence I wish to highlight a recurring error committed by the trial court judges that we are repeatedly having to correct. Both issues appealed in this case were based on the chancellor’s failure to make a required finding of fact. The supreme court has mandated which instances a chancellor must make specific finding of fact or conclusions of law and the instances in this case, grounds for divorce and division of marital property, are just two of those instances.

¶ 24. The purpose of the requirement of making findings of fact is to make known the grounds upon which the trial court based its final conclusion. General Tire & Rubber Co. v. Cooper, 176 Miss. 491, 165 So. 420, 421 (1936). Thus the appellate court would have a record as to whether the final decision rested upon conclusions of law or upon findings of fact and whether those conclusions of fact support the resulting judgment. Id. In the case at bar there was sufficient evidence in the record and transcript for this Court to determine the adequacy and sufficiency of the chancellor’s ruling. However, this is not appropriate appellate procedure in light of the mandates for findings of fact required by the Mississippi Supreme Court.

¶ 25. This court is an appellate court which cannot make findings of fact and conclusions of law, and we should not be required to search the record for such purpose. Our purpose is to simply compare the chancellor’s findings with the record to ascertain if there is a reversible error because the chancellor abused his discretion, was manifestly wrong or applied an erroneous legal standard. Wright v. Wright, 737 So.2d 408(¶ 15) (Miss.Ct.App.1998). Without appropriate findings and conclusions of law made by the chancellor we cannot do that.

¶ 26. In the interests of judicial economy I want to strongly admonish and advise chancellors to make the required findings of fact and conclusions of law.

IRVING, J., JOINS THIS SEPARATE WRITTEN OPINION.


text:
    Eldawaneli Tarloytauruss CONERLY a/k/a Eldawain Conerly, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KP-01297-COA.
    Court of Appeals of Mississippi.
    Aug. 3, 2004.

      Eldawaneli T. Conerly, appellant, pro se.
    Office of the Attorney General by Jean Smith Vaughan, attorneys for appellee.
   IRVING, J.,

for the Court.

¶ 1. Eldawaneli T. Conerly was found guilty by a Walthall County jury of two counts of simple assault on a law enforcement officer and one count of aggravated assault on a law enforcement officer. He was sentenced to ten years for the simple assault and twenty years for the aggravated assault, for a total of thirty years, all counts to run consecutively.

¶ 2. Aggrieved, Conerly now assigns the following issues as error: (1) the trial court committed reversible error by failing to order sua sponte a competency hearing before allowing him to represent himself, and trial counsel who served as his advisor was ineffective for failing to request such hearing; (2) the trial court erred in overruling his motion in limine to exclude testimony concerning an alleged armed robbery that preceded the chase, and a gun found in his car after the car was impounded; (3) the trial court erred in overruling his objection to the admission of a warrant and a photograph because the State failed to disclose these items during discovery; (4) the trial court committed reversible error by failing to instruct the jury on the elements of aggravated assault and refusing to grant limiting instructions; (5) the prosecution’s continuous referral to an alleged prior armed robbery and its instructions to the jury in closing arguments to hold the armed robbery against him violated his right to a fair trial; (6) and the jury’s verdict is against the overwhelming weight of evidence. Conerly also contends that the evidence is insufficient as a matter of law to sustain his conviction. Finding no reversible error, we affirm all issues.

FACTS

¶ 3. On June 15, 2001, police officers in Walthall County received a warning to be on the lookout (BOLO) for a man in a white Oldsmobile Cutlass that had been involved in an armed robbery in Washington Parish, Louisiana. Officers Truitt Simmons, Lee Cotton, and Kyle Huhn each heard the BOLO over their radios and began patrolling in different areas. Officer Huhn called in on his radio and stated that he had spotted the car at a McDonald’s and that the suspect was inside eating. The officers decided to wait until the suspect left McDonald’s before approaching him due to safety concerns for patrons inside the restaurant. When the suspect, who was later identified as Elda-waneli T. Conerly, came out of the restaurant, and got into his vehicle and began to drive away, Officer Huhn came up behind him and turned on his siren and blue lights. Conerly did not stop. Officer Huhn continued to follow him. Shortly thereafter, Officer Simmons arrived and joined in the chase. Officer Simmons pulled up beside Conerly’s car and began to motion for Conerly to pull over. Conerly refused to pull over, and Officer Simmons fell back in behind Conerly. Officers from Pike County were notified that police were in hot pursuit of the suspect and that they were about to enter Pike County. Officer Cotton joined the pursuit at the Pike County line. As Conerly entered Pike County, Officers Cotton, Simmons, and Huhn decided to do a rolling road block to slow Conerly down. Conerly, however, did not stop and drove his car into Officers Simmons’s and Huhn’s cars. Conerly continued driving and the police officers continued to pursue him while trying to get him to pull over. The chase finally ended in a residential area, and Conerly jumped out of his vehicle and ran into a wooded area. He was not apprehended until almost a year later. Additional facts will be related during the discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Competency Hearing/Inejfective Assistance of Counsel

¶ 4. Conerly first alleges that the trial court failed to order a competency hearing before allowing him to represent himself, and as a result, his waiver of right to counsel was neither voluntary nor intelligent. He further alleges that his attorney was ineffective in failing to request such hearing.

¶ 5. The State submits that Conerly’s ineffective assistance of counsel claim is without merit since he waived representation of counsel, and his attorney sat merely in an advisory capacity.

¶ 6. Conerly relies on Howard v. State, 701 So.2d 274 (Miss.1997) in support of his argument that he should have been given a competency hearing before being allowed to represent himself. In Howard, the Mississippi Supreme Court held that “[ejven where the issue of competency to stand trial has not been raised by defense counsel, the trial judge has an ongoing responsibility to prevent the trial of an accused unable to assist in his own defense.” Id. at 280. The defendant in Howard waived his right to counsel and represented himself. He was convicted and sentenced to death. Id. at 275-76. On appeal, the court reversed and remanded the case for a new trial, finding that the defendant was not competent to represent himself and that his waiver of right to counsel was not voluntary. The court noted that a trial judge has an obligation to order a competency hearing whenever a “reasonable question of the defendant’s [mental] capacity arises.” Id. at 281. The court also stated that the determination of what is reasonable rests largely within the discretion of the trial judge since he sees the evidence first hand, and observes the demeanor and behavior of the defendant. Id.

¶ 7. The Howard, court set forth a five-part test to determine if a defendant is competent to stand trial. The court held that before a defendant can be said to be capable of an intelligent and knowing waiver of [his] right to counsel, it must be shown that the defendant is able to satisfy the criteria for competency to stand trial, that is, be able to (1) perceive and understand the nature of the proceedings, (2) rationally communicate with his attorney about the case, (3) recall relevant facts, and (4) testify in his own defense if appropriate. Id. at 280. The defendant’s ability to satisfy the foregoing criteria must be commensurate with the severity and complexity of the case. Id.

¶ 8. We find that Conerly’s reliance on Howard is misplaced. Conerly, unlike the defendant in Hoivard, did not exhibit behavior which reasonably should have raised a question as to his ability to represent himself, or his competency to stand trial. Further, throughout trial, the defendant in Howard constantly exhibited numerous instances of paranoid behavior such as repeatedly expressing a belief that the allegations against him were the result of a conspiracy, and that his family members were the ones who committed the murder and framed him. The defendant even argued to the jury that one of the jurors may have committed the crime. Additionally, all four attorneys who attempted to represent the defendant suggested to the court that he was not competent to assist in his own defense.

¶ 9. We find nothing in the record to suggest that a competency hearing was warranted in this case, and Conerly failed to provide evidence that would support his assertion that the trial judge should have ordered the hearing sua sponte. Therefore, this issue lacks merit.

¶ 10. We further find that Conerly’s ineffective assistance of counsel claim is similarly without merit. The record reflects that Conerly requested a court-appointed attorney on June 3, 2002, and thereafter the attorney filed several motions on Conerly’s behalf before trial began. The attorney filed a waiver of arraignment on June 3, and signed an order entered on June 24 pursuant to an omnibus hearing. The attorney also filed a motion to allow the jury to view Conerly’s vehicle. Although it is unclear at exactly what point Conerly chose to represent himself, the record does reflect that on the first day of trial, Conerly expressed his desire to the trial judge to represent himself. The record also reflects that Conerly waived his right to counsel, and his attorney was appointed to sit merely in an advisory capacity. “As stand-by counsel, [a defense attorney] is without authority, discretion or control, and the charge that he rendered constitutionally ineffective assistance is without merit.” Estelle v. State, 558 So.2d 843, 847 (Miss.1990).

(2) Motion in Limine

¶ 11. Conerly’s next allegation of error concerns the trial judge’s refusal to grant his motion in limine to exclude evidence pertaining to a previous armed robbery for which he had not been convicted, and evidence concerning a gun found in his car after the chase.

¶ 12. “The relevancy and admissibility of evidence are largely within the discretion of the trial court, and reversal may be had only where that discretion has been abused.” Parker v. State, 606 So.2d 1132, 1136 (Miss.1992). “[This] discretion must [however] be exercised within the boundaries of the Mississippi Rules of Evidence.” Id.

¶ 13. Before trial began, Conerly made a motion in limine to prevent the State from mentioning the BOLO that stemmed from an alleged armed robbery in Louisiana, and to exclude the gun found in his car after the chase ended. The judge denied the motion and allowed both pieces of evidence to come in. The judge stated that the BOLO was a necessary part of the State’s case because it gave police probable cause to stop Conerly in the first place. He [the judge] stated that he would give the jury a limiting instruction to only consider the BOLO in establishing the purpose for stopping Conerly. The record reveals, however, that the judge failed to give the instruction for reasons unexplained in the record.

¶ 14. We find that the trial judge did not abuse his discretion in admitting the BOLO and gun into evidence because these items were essential to the State’s presentation of a complete and coherent story to the jury. “Evidence of a prior criminal activity on the part of one criminally accused is inadmissible where the prior offense has not resulted in a conviction.” Levy v. State, 724 So.2d 405, 408(¶ 12) (Miss.1998). However, the State has a legitimate interest in telling a rational and coherent story of what happened. Id. “Where substantially necessary to present to the jury the complete story of the crime, evidence or testimony may be given though it may reveal or suggest other crimes.” Id. Here, the admission of testimony about the BOLO and gun was necessary for the jury to get a full and complete picture of the facts as they existed at the time of the crime. Therefore, this issue lacks merit.

(3) Discovery Violation

¶ 15. Conerly next claims that the State’s failure to disclose alleged exculpatory evidence prior to trial resulted in his receiving an unfair trial. The State counters that since Conerly failed to object at trial, this issue is waived.

¶ 16. Prior to trial, Conerly informed the judge that he wanted to “ask him about discovery.” The trial judge instructed Conerly that he should object if the State tried introducing anything that was not furnished to him during discovery. The judge further informed Conerly that if something had not been disclosed, Conerly needed to make an objection and the judge would rule on it.

¶ 17. Conerly now claims for the first time on appeal that the State failed to disclose during discovery an offense report from Officer Huhn, an arrest warrant from the State of Louisiana, and photographs of Officer Simmon’s vehicle after the chase. However, “failure to make a contemporaneous objection at trial constitutes a waiver of any error subsequently assigned.” Moawad v. State, 531 So.2d 632, 634 (Miss.1988). The record reveals that Conerly did not object to Officer Huhn’s offense report on the basis that it was not presented during discovery, nor did Conerly object to the officer’s testimony that Conerly hit his .police car as well as another police car during the chase. Similarly, Conerly did not object to a fax of the arrest warrant from Louisiana, or the photographs of Officer Simmons’s car. As a result, this issue is procedurally barred and not properly before the Court for consideration.

(L) Jury Instructions

¶ 18. Conerly contends that the trial court erred in failing to instruct the jury on the elements of aggravated assault. Conerly also argues that the trial court erred in refusing to grant his proposed instruction D-3 as a curative instruction for testimony concerning the BOLO. The State maintains that Conerly did not make an objection at trial, and therefore, did not preserve the issue for appeal. The State also submits that the jury was correctly instructed on the crimes of aggravated assault and simple assault.

¶ 19. We have thoroughly searched the record and do not find an instruction defining the elements of aggravated assault. If such an instruction was given, it is not in the record before us. We agree, however, with the State’s assertion that Conerly did not object to the instructions that were given. The problem though is not with what was given but what was not given.

¶ 20. Before a conviction may stand the State must prove each element of the offense. Ballenger v. State, 761 So.2d 214, 217(¶ 15) (Miss.2000). Not only is this a requirement of the law of this State, but due process requires that the State prove each element of the offense beyond a reasonable doubt. Id.

¶ 21. The failure, however, to give an instruction on an element of a charge does not mean that the State failed to proved the element. Our supreme court has held that the failure to give an instruction on an element of a capital murder charge is subject to the harmless error analysis. Kolberg v. State, 829 So.2d 29, 51(¶ 43) (Miss.2002). The instructions which were given in Kolberg did not include an instruction defining the underlying felony of felonious child abuse. Id. at (¶ 42).

¶ 22. Our case is different from Kolberg in that here the trial court did not give a single instruction on aggravated assault. The instruction for count two, the aggravated assault charge, reads as follows:

The Court instructs the jury that next you are to consider whether or not the defendant, Eldawaneli Tarloytauruss Conerly also known as Eldawain Conerly, is guilty of the charge of aggravated assault on a law enforcement officer as to count two. If the jury so finds unanimously and beyond a reasonable doubt then you should return a verdict of guilty as to aggravated assault on a law enforcement officer as to count two.
The Court further instructs the jury that if the jury is unable to unanimously agree beyond a reasonable doubt that the defendant is guilty of aggravated assault on a law enforcement officer as to count two, then the jury may consider whether or not the defendant is guilty of the lesser included offense of simple assault on a law enforcement officer.
If you find from the evidence in this case beyond a reasonable doubt, that on or about the 15th day of June, 2002, the defendant Eldawaneli Tarloytauruss Conerly also know as Eldawain Conerly did wilfully, unlawfully, feloniously, purposely and knowingly attempt by physical menace to put another, namely one Lee Cotton, a human being, in fear of imminent serious bodily harm, at a time when he, the said Lee Cotton, was then and there a duly appointed, sworn and acting law enforcement officer for the Walthall County Sheriffs Department, by then and there wilfully, unlawfully, feloniously, purposely and knowingly striking the motor vehicle driven by the said Lee Cotton with a motor vehicle driven by the said Eldawaneli Tarloytau-russ Conerly also known as Eldawain Conerly, while he, the said Lee Cotton, was then and there acting within the scope of his duty and office as a law enforcement officer of Walthall County, Mississippi, as aforesaid, then you should find Eldawaneli Conerly also known as Eldawain Conerly guilty of simple assault on a law enforcement officer as to count two.
If the State has failed to prove any or all of the essential elements of the crime of simple assault on a law enforcement officer as to count two, then you should return a verdict of not guilty as to count two.

¶23. The elements of aggravated assault are (1) attempting to cause or causing serious bodily injury to another purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life or (2) attempting to cause or purposely or knowingly causing bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm. Miss.Code Ann. § 97-3-7 (Supp. 2003).

¶ 24. Instructions were given which informed the jury of the elements of simple assault and the State’s burden to prove every material element of the charges. The jury was also given this instruction relating to a deadly weapon:

The Court instructs the jury that the question of “what is a deadly weapon” is a question of fact for the jury. While the use of a motor vehicle ordinarily would not constitute the use of a deadly weapon, the jury may find that the use of a motor vehicle can constitute a deadly weapon if it can be used as a means or force likely to produce death.

While instructions are to be read and considered as a whole, the instructions when read and considered together did not inform the jury of the elements which it had to find before it could convict Conerly of aggravated assault.

¶ 25. Having determined that the jury was not instructed as to the elements of the charge of aggravated assault and that the problem was not cured by other instructions, we look to see if this error is harmless. The test for determining whether a constitutional error is harmless is whether “it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Kolberg, 829 So.2d at 50(¶ 39) (quoting Neder v. United States, 527 U.S. 1, 15-16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)).

¶ 26. The crime of aggravated assault is not comprised of numerous or complex elements. And the facts of this case are simple. Conerly, in his vehicle while traveling at some significant rate of speed, knowingly and intentionally rammed police officers in theirs. It is self evident that one who does such an act is acting recklessly under circumstances manifesting extreme indifference to the value of human life. Therefore, although the trial court failed to instruct the jury of the elements of aggravated assault, we can say with confidence that it appears beyond a reasonable doubt that the absence of the element instruction did not cause or contribute to the jury reaching the verdict that it reached. Consequently, we find this error to be harmless. If the jury had not been instructed on simple assault and the evidence was slight, we might have a different situation, for the jury might have convicted Conerly of the greater offense not knowing that it could have convicted him of the lesser offense. But the evidence is overwhelming that Conerly used his car in a manner which clearly indicated that he was attempting to cause serious bodily injury with a deadly weapon (the car) or under circumstances manifesting extreme indifference to the value of human life.

¶ 27. Conerly also complains of being denied the following instruction:

The Court instructs the jury that no person may be convicted of a crime based upon his reputation or character. In order to convict the Defendant of the charges against him, the evidence in this case must prove beyond a reasonable doubt that he is guilty of that offense.

¶ 28. The State objected to the instruction on the basis that it was not applicable since there was no reputation and character evidence presented during trial. The trial judge denied the instruction. “The general rule is that all instructions must be supported by the evidence.” Haggerty v. Foster, 838 So.2d 948, 954(¶ 14) (Miss.2002). “An instruction not supported by the evidence should not be given.” Id. We find no error in the trial judge’s ruling on this issue.

¶29. As to Conerly’s argument that the trial judge erred in not giving stia sponte a limiting instruction, we likewise find no merit. Evidence of other crimes is admissible when necessary to tell a complete story to the jury. Levy v. State, 724 So.2d 405, 408(¶ 12) (1998). It was important that the jury understand why the officers were chasing Conerly. On these facts, it is doubtful that a limiting instruction was required. But even if one was required, the failure to give it was indeed harmless. “Harmless error analysis is applicable in cases where the trial court does not sua sponte give [a] limiting instruction when MRE 404(b) evidence is admitted.” Webster v. State, 754 So.2d 1232, 1240 (¶ 22) (Miss.2000). “An error is harmless when it is apparent on the face of the record that a fair-minded jury could have arrived at no verdict other than that of guilty.” Floyd v. City of Crystal Springs, 749 So.2d 110, 120(¶ 37) (Miss.1999).

(5) Prosecutor’s Arguments

¶ 30. Conerly argues that the prosecution’s strategy of continuously referring to the armed robbery, and instructing the jury to hold this against him in both the prosecution’s opening and closing statements violated his right to a fair trial. The State maintains that the armed robbery was not argued as a prior offense but as a reason for the chase, and that the trial judge had already ruled that it could be mentioned.

¶ 31. Any allegedly improper prosecutorial comment must be evaluated in context, taking into consideration the circumstances of the case when deciding the comment’s propriety. Brooks v. State, 763 So.2d 859, 864(¶ 12) (Miss.2000). The test for determining if [an alleged] improper argument by the prosecutor to the jury requires reversal is “whether the natural and probable effect of the prosecutor’s argument creates an unjust prejudice against the accused that results in a decision influenced by the prejudice.” Id.

¶ 32. Evaluating the statements in the context in which they were made, we find that the prosecutor’s statements did not create unjust prejudice against Conerly and did not result in a verdict influenced by prejudice. Likewise, although Conerly had not been convicted of the armed robbery charge, testimony touching upon the robbery was nevertheless essential to relaying to the jury a complete story regarding the chase. Again, although evidence of prior criminal activity is inadmissible where the prior offense has not resulted in a conviction, it nevertheless may be given when substantially necessary to present to the jury the complete story of a crime.

(6) Weight and Sufficiency of Evidence

¶ 33. Conerly final argument is that the jury’s verdict was against the overwhelming weight of evidence and that the evidence is insufficient as a matter of law to sustain his conviction. Although Conerly indicates in the caption to this issue that the verdict was against the overwhelming weight of the evidence, the argument which he makes in support of the issue, goes to the sufficiency and not the weight of the evidence. However, we consider both arguments.

¶ 34. “The standard of review for a denial of a directed verdict, peremptory instruction, and a JNOV are identical.” Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003). A motion for a JNOV, as well as a motion for a directed verdict and request for a peremptory instruction, challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). On the issue of legal sufficiency, reversal can only occur when evidence of one or more of the elements of the charged offense is such that “reasonable and fair-minded jurors could only find the accused not guilty.” Hawthorne, 835 So.2d at 21(¶ 31).

¶ 35. We find that ample evidence was offered by the State in support of Conerly’s conviction. The undisputed evidence reveals that Conerly led police on a chase that spanned over two counties. The evidence also showed that the police attempted to stop Conerly numerous times, but he refused to stop, hitting three police cars in the process. Accepting the evidence in the light most favorable to the State, the jury was justified in finding Conerly guilty.

¶ 36. We now turn to the weight of evidence issue. As distinguished from a motion for a directed verdict or a JNOV, a motion for a new trial asks a court to vacate the judgment on the grounds related to the weight of the evidence. Smith v. State, 802 So.2d 82, 85-86(¶ 11) (Miss.2001). Our standard of review for claims that a conviction is against the overwhelming weight of the evidence, or that the trial court erred in not granting a motion for a new trial, has been stated as follows:

[An appellate 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.” A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction “unconscionable injustice.”

Todd v. State, 806 So.2d 1086, 1090(¶ 11) (Miss.2001) (quoting Crawford v. State, 754 So.2d 1211, 1222 (Miss.2000)).

¶ 37. For the reasons discussed in the foregoing section, we find no merit to this issue. It is sufficient to say that the evidence presented by the State in support of Conerly’s conviction precludes any finding that an unconscionable injustice will occur if the verdict is allowed to stand.

¶ 38. THE JUDGMENT OF THE WALTHALL COUNTY CIRCUIT COURT OF CONVICTION OF COUNT ONE, SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER, AND SENTENCE OF FIVE YEARS; COUNT TWO, AGGRAVATED ASSAULT ON A LAW ENFORCEMENT OFFICER, AND SENTENCE OF TWENTY YEARS; AND COUNT THREE, SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER, AND SENTENCE OF FIVE YEARS, WITH SENTENCES TO RUN CONSECUTIVELY FOR A TOTAL OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE FIRST FIFTEEN YEARS TO SERVE AND THE LAST FIFTEEN YEARS ON POST-RELEASE SUPERVISION, AND PAYMENT OF $1,000 FINE AND FULL RESTITUTION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WALT-HALL COUNTY.

KING, C.J., BRIDGES, P.J., LEE,' MYERS, CHANDLER AND GRIFFIS, JJ. CONCUR. SOUTHWICK, P.J., NOT PARTICIPATING.

      . Officer Huhn testified that a rolling road block is when the officers try to get as many patrol cars ahead of the suspect as possible, so that they can surround or "box” the suspect in. He stated that once this happens, the officers will slow down or stop if they can to keep the suspect from harming the public or other officers.

        . Officer Cotton testified that during the chase, Conerly also hit his car, and pointed a gun at him.