author: SMITH, Chief Justice,

text:
    David H. VINCENT v. Joan (Hankins) Vincent GRIFFIN.
    No. 2001-CT-01439-SCT.
    Supreme Court of Mississippi.
    May 13, 2004.

      Mary Lynn Williams Damare’, attorneys for appellant.
    Phillip Gregory Meek, Olive Branch, attorney for appellee.
   ON WRIT OF CERTIORARI

SMITH, Chief Justice,

for the Court.

¶ 1. David H. and .Joan (Hankins) Vincent (now Griffin) were granted a divorce by the Chancery Court of DeSoto County on February 24, 1997. The divorce decree awarded both parents joint legal and physical custody of the three minor children. David and Joan later agreed to alter the terms of child visitation so as to give David custody of the children on alternate weekends and two additional nights each week. According.to David, the parties further modified the visitation schedule to allow him to have physical custody of the children from Thursday at 5:00 p.m. to the following Monday. David claimed that he and Joan agreed to suspend child support payments since each of them had the children for relatively equal periods of time. However, Joan filed a petition for contempt in August 2000 seeking to compel David to pay three years of back due child support.

¶ 2. On August 31, 2000, a Rule 81 summons was issued informing David of the date and time of the hearing on the contempt motion. David appeared at the scheduled time, but the case was continued until October 2, 2000, at which time an order was entered scheduling the matter for trial on November 15, 2000. On that date, Judge'Dennis Baker transferred the case to Judge Percy L. Lynchard, Jr., the chancellor who granted the parties’ divorce. David appeared pro se at all hearings.

¶ 3. On January 31, 2001, Joan’s attorney mailed to David a-letter and agreed order proposing a trial date of February 28, 2001. David neither responded to the letter nor returned the agreed order. Consequently, on February 21, 2001, Joan’s attorney filed a motion for trial date setting notice for David to appear in chancery court on February 26, 2001, at 9:00 a.m. David later claimed to have never received the notice.

¶ 4. On February 26, 2001, the chancellor entered an order setting a trial date of March 29, 2001. David claimed to have not received any notice of this date and did not appear at trial. At the trial, Joan obtained a contempt judgment for $21,560 in past due child support, sole custody of the minor children, and attorney’s fees of $6,080. David appealed but a closely divided Court of Appeals affirmed the chancellor’s judgment. Vincent v. Griffin, 852 So.2d 620 (Miss.Ct.App.2003) (plurality opinion).

ANALYSIS

¶ 5. The basic purpose of process is to impart notice. First Jackson Secs. Corp. v. B.F. Goodrich Co., 253 Miss. 519, 176 So.2d 272, 276 (1965). It is clear that the trial court had both subject-matter jurisdiction over the case as well as personal jurisdiction over the parties. Having ruled on the underlying divorce, the trial court therefore retained continuing jurisdiction over matters relating to that judgment. Covington v. Covington, 459 So.2d 780, 782 (Miss.1984). Personal jurisdiction was acquired when David received a summons for the contempt action and thereafter appeared personally at the initial hearing. Powell v. Powell, 644 So.2d 269, 273-74 (Miss.1994). The matter was continued twice before the case was continued indefinitely by general order of the trial court. When the matter was finally reset for a date and time certain, notice of the hearing was served by mail rather than by reissuance of a summons pursuant to M.R.C.P. 81(d)(5) which provides in relevant part:

summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent. The court may by order or rule authorize its clerk to set such actions or matters for original hearing and to continue the same for- hearing on a later date,

(emphasis added). The Court of Appeals’ plurality opinion found that this language suggests that “no further notice is required once a defendant has been served with a Rule 81 summons.” Vincent, 852 So.2d at 623.

¶ 6. With regard to a contempt proceeding, “[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Due process therefore requires that a defendant be given adequate notice. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798-99, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987). In the present case, David was not given notice of a definite hearing date at the time of the last continuance. When he did not appear at the next hearing, he was found to be in arrears on his child support obligation and was also assessed with attorney fees. David does not dispute his child support obligation but argues only that he was denied the opportunity to challenge the award of attorney fees which was made in his absence.

¶ 7. In Caples v. Caples, 686 So.2d 1071 (Miss.1996), the wife filed a motion for modification of a joint custody decree in order to obtain exclusive custody of the minor child. After the respondent husband was served with a Rule 81 summons and initially appeared in chancery court, the hearing was recessed indefinitely pending a decision by a foreign court to waive jurisdiction. The matter was reconvened two weeks after the general recess but the husband was not present. The chancellor therefore awarded sole custody to the mother but granted visitation rights to the husband. On appeal, the husband argued that he was not given notice and that he was therefore denied due process. This Court found that there was no order setting a specific date for further proceedings entered on the day that the hearing was continued. Consequently, the Court ruled that “[t]he proper procedure under Rule 81 would have been to serve [the respondent] an additional Rule 81 summons.” Id. at 1074. The Court held that another Rule 81 summons “would have outlined the time and date for the trial court hearing and informed [the respondent].” Id.

¶ 8. The more reasonable interpretation of M.R.C.P. 81(d)(5) is that an additional summons is not required where by order entered that day the proceedings are continued to a later date certain. However, in the present case, the order setting the last hearing date was not entered on the date of continuance of the prior hearing. Thus, the chancellor should have required service of an additional Rule 81 summons on David before holding the hearing and assessing him with attorney fees. The Court of Appeals’ decision to affirm the chancellor’s action is inconsistent with this Court’s ruling and must therefore be reversed.

CONCLUSION

¶ 9. For these reasons, we reverse the judgments of both the Court of Appeals and the chancery court, and we remand this case to the DeSoto County Chancery Court for a new hearing consistent with this opinion.

¶10. REVERSED AND REMANDED.

WALLER AND COBB, P.JJ., EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J. NOT PARTICIPATING.


source: Caselaw Access Project

author: KING, P.J.,

license: Public Domain

text:
    Lytricia LAMBERT, Appellant, v. Travis LAMBERT, Appellee.
    No. 2001-CA-01739-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.
    Rehearing Denied Feb. 17, 2004.
    Certiorari Denied May 13, 2004.

      David L. Calder, University, attorney for appellant.
    Joe Dale Walker, Monticello, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   KING, P.J.,

for the Court.

¶ 1. Lytricia Simmons Lambert and Travis Lambert agreed to a divorce based on irreconcilable differences and the Chancery Court of Lawrence County entered its decree on November 4, 2000, incorporating the terms agreed upon by the parties. The parties agreed that the mother would have primary physical custody of their minor child, William Travis Lambert, with the father given certain visitation rights.

¶ 2. On February 1, 2001, less than three months after the entry of the divorce, Travis filed a motion for modification of the custody, support, and visitation alleging a “material change in circumstances” because Lytricia “just this week moved from Hattiesburg, Mississippi to Batesville, Mississippi ... making it impossible for the petitioner to have visitation with his minor child as set forth in the Final Decree of Divorce.” After conducting a hearing, the chancery court granted Travis’ motion and changed primary custody to him. Lytricia appeals from that judgment by the Lawrence County Chancery Court.

¶ 3. On appeal, Lytricia raises the following assignment of errors:

1. Whether Appellee Travis Lambert presented sufficient credible evidence to support his allegation that there had been a substantial change in the circumstances of the parties that was expected to continue and to adversely affect the best interest of the minor child, so as to change the terms and conditions of the custody agreement that had previously been established by the trial court was justified.
2. Whether the chancellor erred and/or abused his discretion by finding that there had been a material change in circumstances adverse to the best interest of the minor child, so that a modification of the original divorce and custody decree was warranted because Appellant Lytricia Simmons Lambert relocated her residence.
8. Whether the chancellor’s findings of fact were supported by credible evidence, or whether he improperly applied the law in his decision to modify custody.
4. Whether the chancellor erred and/or abused his discretion by proceeding to an “Albright analysis” when there had been no credible evidence of a material change in circumstances that adversely affected the best interest of the minor child.
5. Whether the trial court erred and/or abused its discretion in shifting primary physical custody of the minor child to the father because the mother relocated to a different part of the state.
6. Whether the trial court erred and/or abused its discretion by punishing the mother for her relocation of her residence to a different part of the state by changing primary physical custody of the minor child to the father, and placing the primary burden of traveling on the mother for the purposes of visitation.

¶ 4. Finding that the chancellor committed error in changing custody, this Court reverses and renders the decision of the chancery court.

FACTS

¶ 5. At a hearing on July 24, 2000, Lytri-cia Simmons Lambert and Travis Lambert appeared before the chancellor and agreed to an irreconcilable differences divorce including an agreement as to property, child custody, support and visitation. They agreed to joint legal custody of their child, William Travis Lambert, born on December 26,1992, with Lytricia having primary physical custody during the school year, subject' to Travis’ having defined visitation. Travis was allowed a mid-week visitation period each Wednesday from the time the child got out of school until 8:00 p.m. and overnight visitation two weekends per month, plus extended visitation during the summer months.

¶ 6. At the time of the July hearing, as evidenced by the discussions concerning visitation, Lytricia was in the process of moving from.the marital home near Monticello to Hattiesburg. Unable to find full-time employment in Hattiesburg, Lytricia and her son moved to her parents’ home in Pope, Mississippi, in late January 2001. William was enrolled in the second grade at Pope Junior High School in the South Panola School District.

¶ 7. After working part-time with her father and for Cross Mark, Lytricia found full-time employment as a dispatcher with the Batesville Police Department in 'June 2001. She worked two days on and two days off, from 6:00 a.m. to 6:00 p.m., earning approximately $1,500 per month.

¶ 8. As part of the divorce agreement, Travis retained possession of the marital domicile in Jayess, Mississippi where he still lives. His mother, brother and sister-in-law live nearby. Travis had worked for Georgia-Pacific in Monticello as a life truck operator in the shipping department for over seven years at the time of the modification hearing. He works fourteen days on and fourteen days off, working from' either 7:00 a.m. to 7:00 p.m. or 7:00 p.m. to 7:00 a.m.

¶ 9. For reasons which are not clear, after the July 2000 hearing, the chancellor did not sign the order granting the parties’ divorce until October 23, 2000, and the order was not entered by the chancery clerk until November 4, 2000.

¶ 10. In his motion for modification of custody, filed less than three months after the divorce decree, Travis alleged a “material change in circumstances” because Ly-tricia “just this week moved from Hatties-burg, Mississippi to Batesville, Mississippi ... making it impossible for the petitioner to have visitation with his minor child as set forth in the Final Decree of Divorce.” No other grounds were alleged for the modification.

¶ 11. At the June 12, 2001 hearing on his motion, Travis testified and presented four other witnesses: Lytrieia Lambert as an adverse witness; Paul Davey, a professional counselor who evaluated William; Karen Lambert, Travis’ sister-in-law; and Wallene Lambert, Travis’ mother. After Travis rested, counsel for Lytrieia moved to dismiss the motion based on the failure of Travis to prove his case. The chancellor inexplicably denied the motion because Lytrieia had filed a motion seeking modification of the weekday visitation. The chancellor stated that “there’s no doubt that a material change in circumstances adversely affecting the child has been met in these circumstances, so therefore the motion will be overruled.” The chancellor gave no further explanation.

¶ 12. After Lytrieia presented her witnesses, the chancellor went through the Albright factors and awarded primary physical custody of the minor child to Travis during the school year with Lytrieia having custody during the summer months. The noncustodial parent would also have two weekends per month visitation and additional visitation as provided for holidays. Significantly, the court also allowed Lytrieia to exercise a mid-week visit from the time school is out until 8:00 p.m., but only if she were willing to drive the full distance back and forth. Under the previous arrangement, Lytrieia drove William to Jackson so that Travis could have his mid-week visitation.

¶ 13. Near the end of the hearing, counsel for Lytrieia moved the court “for findings of fact as to what are the substantial and material change in circumstance and what adverse affects on the child.” The chancellor stated:

I think the Court has done it. But just so we’ll make sure. The adverse affect on the child is the fact that the child is— a divorce decree that wasn’t finalized until November. In February the visitation became a problem because the mother moved. And the therapist has— or the wife’s therapist, as well as the wife, testified that the child has anxiety and that it is not good for the child. So that’s got to be an adverse effect on the child, the fact that he moved and the prior decree could not be fully enforced as it was at the time of the divorce.

DISCUSSION

Travis Lambert’s Failure to Cite Legal Support

¶ 14. In response to the brief submitted by Lytrieia Lambert, Travis Lambert submitted a brief consisting of eight pages which contained no specific reference to any legal authorities in support of his arguments. It is well established that appellate courts in Mississippi will not review any issues on appeal if the party fails to cite relevant authority in support of his or her arguments. See, e.g., Blue v. State, 825 So.2d 709, 712(¶ 10) (Miss.2002); Hankins, v. Hankins, 729 So.2d 1283, 1286(¶ 11) (Miss.1999); Grey v. Grey, 638 So.2d 488, 491 (Miss.1994). In light of this authority, the Court is not required to address the arguments raised by Travis Lambert in his brief because they are not supported by any legal authority or appropriate citations to the record.

¶ 15. This rule has also been applied in the context of a custody and support decision where the appellee failed to file a substantive brief in opposition to the issues raised by the appellant. In Roberts v. Brown, 805 So.2d 649 (Miss.Ct.App.2002), the father/appellant petitioned the court to terminate his support obligations based on the deterioration or non-existence of the parenVchild relationship. The court denied his request to have his child support obligations terminated. On appeal, the father argued that the decision of the chancellor was manifestly wrong and that he should not be required to continue child support since the child had no contact with him and the mother/appellee had not encouraged the child to maintain contact with the father. See Id. at 652(¶ 13). The ap-pellee/ mother did not file an appellee’s brief. The Court held that the father was entitled to terminate his child support obligations, stating:

The standard of review in child support cases is that a chancellor’s ruling will remain undisturbed unless there is a showing of manifest error. Westbrook v. Oglesbee, 606 So.2d 1142, 1146 (Miss.1992). However, when an appellee does not file a brief, this deference is reduced. “We treat the failure to file a brief as a confession of error unless from the face of the appeal there is manifestly none.” In the Interest of R.T. 520 So.2d 136, 138 (Miss.1988).

Id. at 652 (¶ 12). The Court reversed and rendered the decision of the chancellor and ordered the father’s child support obligations terminated.

¶ 16. Despite a failure to file a reply brief, automatic reversal is not required and the Court is under an obligation to review the record where child custody is at issue. Mosley v. Atterberry, 819 So.2d 1268, 1272 (¶ 17) (Miss.2002); Muhammad v. Muhammad, 622 So.2d 1239, 1242-43 (Miss.1993).

¶ 17. Applying the holding in Roberts, we find that the failure to cite any legal authority by Travis Lambert in support of his argument that the ruling of the chancellor should be sustained amounts to a confession that the chancellor committed error. Our review of the record confirms that the chancellor was manifestly in error. In this case, the error was more than apparent, and Travis Lambert failed to support his argument simply because there is no legal support for his argument or the decision of the chancellor.

Modification of Child Custody

¶ 18. Our standard of review of the decision of a chancellor is limited and we will reverse only where the decision is manifestly wrong or clearly erroneous or the chancellor has applied an erroneous legal standard. Creel v. Comacchione, 831 So.2d 1179, 1183 (¶ 14) (Miss.Ct.App.2002). In considering whether a change in custody is warranted, the Court looks to the following:

First, a party must show that since entry of the judgment or decree sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child. Smith v. Jones, 654 So.2d 480, 486 (Miss.1995). Second, the party must also show that the best interest of the child requires a change in custody. Id. We further note that not every change in circumstances is so adverse that a modification of custody is warranted; however, the chancellor must consider the circumstances of each case in light of the totality of the circumstances. Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993). However, “[i]n all child custody cases, the polestar consideration is the best interest of the child.” Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994).

Creel, 831 So.2d at 1183 (¶ 15).

¶ 19. It is foreseeable, indeed expected, that as a consequence of divorce a child will experience changes in his or her circumstances and experience anxiety as a result of the disruption of the family unit. Divorce has consequences which are often adverse, particularly for younger children. This is not to say that a chancellor cannot change custody, if the circumstances warrant, but to do so, within a short time and without sufficient justification is perhaps one of the most egregious errors that a chancellor can commit. In seeking to placate one parent, the chancellor exacerbates the trauma to the one person least deserving to be subjected to the caprice and whim of the chancery court — the child. In this instance, the best interest of the child was completely ignored, as was prior case law from this Court and the Mississippi Supreme Court.

¶ 20. In order for there to be a modification in custody, there must have been an initial determination of custody. In this case, the parties had agreed to the terms of custody as a part of their joint petition for an irreconcilable differences divorce.

¶ 21. To permit a change in custody, there must first be a factual determination based on substantial evidence, presented by the petitioning party, that there has been a substantial and material change in circumstances since the divorce was granted adversely affecting the child and which circumstances are anticipated to be permanent or continuing such that they would warrant a change in custody. These changed circumstances must be such that they could not be anticipated at the time of the initial determination of custody and of such magnitude as to justify the drastic measure of change in custody.

¶ 22. “While numerous factors may go into the initial consideration of a custody award, see, e.g., Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), only parental behavior that poses a clear danger to the child’s mental or emotional health can justify a custody change.” Morrow v. Morrow, 591 So.2d 829, 833 (Miss.1991) (citing Ballard v. Ballard, 434 So.2d 1357, 1360 (Miss.1983)). As stated in Ballard, 434 So.2d at 1360, a change in custody is a “jolting, traumatic experience. It is only that behavior of a parent which clearly posits or causes danger to the mental and emotional well-being of a child (whether such behavior is immoral or not), which is sufficient basis to seriously consider the drastic legal action of changing custody.”

¶ 23. In the present case, the mother moved and the father was inconvenienced by the move. In changing custody, the chancellor did nothing but cause a further inconvenience to the mother, certainly not adequate grounds for modification. This Court in Creel v. Comacchione, 831 So.2d at (¶ 16), rejected the notion that allegations of denial of visitation were sufficient grounds for modification of custody. See also Spain v. Holland, 483 So.2d 318, 321 (Miss.1986) (move to another state which effectively curtained non-custodial parent’s visitation rights “legally irrelevant to the matter of permanent custody”). The proof in this case did not rise to that level. The most that was offered was that the father was having difficulty with a portion of the visitation because of the mother’s move. Certainly, the best interest of the child was not served by this decision.

¶24. The appellate' courts have repeatedly held that the mere moving of one party or the other is insufficient grounds for modification of child custody. Cooley v. Cooley, 574 So.2d 694, 699 (Miss.1991) (frequent moves within a short period of time, including move to Japan, insufficient to warrant change in custody) (overruled on other grounds); Spain v. Holland, 483 So.2d 318, 321 (Miss.1986) (move to England does not require change in custody); Pearson v. Pearson, 458 So.2d 711, 713 (Miss.1984) (move to Hawaii no per se basis for interfering in custody); Brocato v. Walker, 220 So.2d 340, 344 (Miss.1969) (600 mile move to San Antonio, Texas, not a material change in circumstances). See also Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990) (move to Alaska, along with split custody and poor relationship with child were “unusual circumstances” warranting change in custody). As stated in Spain v. Holland, 483 So.2d 318 at 321, “[w]e close our eyes to the real world if we ignore that ours is a mobile society. Opportunity and economic necessity transport perfectly responsible adults many miles from their homes.”

¶ 25. Upon review of the record in this case, we find no legally sufficient basis for finding a material change in circumstances to justify the change in custody. The proponent of the motion to modify totally failed to show any change in circumstances. It was his burden in this case. When asked to explain why he filed the motion to modify, Travis stated:

Because of Lytricia moving from place to place. Moving William from school to school. It is not good for him to go through those changes. Like what I— you know, like I have a good secure home, good secure job. Lytricia hasn’t had a full time job as I’ve known of since the divorce. And she was going to try to keep me from being able to see William on the weekdays and stop me getting to see him some of that. And I don’t think that’s good for him. Change my weekends. And the way that had worked out was when I was off. Basically those are the main reasons why.

¶ 26. In particular, Travis failed to show that .the mental and emotional well-being of the child was in any danger as a result of living with the custodial parent. None of the witnesses offered by Travis in the hearing in this matter testified to any material change in circumstances. In fact, their testimony, including Paul Davey, a professional counselor, was that William was happy, healthy and well adjusted. The chancellor denied the motion to dismiss at the conclusion of Travis’ presentation of his case, stating that “[t]he Court, of course, is cognizant of the fact that the defendant herself filed saying that there- has been a material change in circumstances adversely affecting the child and wanted the visitation changed. And she testified from the stand that it would be good for the child to have to have the weekday visitation which would automatically cause a change in what had been agreed to.” . The non-custodial parent’s visitation rights are “legally irrelevant to the matter of permanent custody.” Spain, 483 So.2d 318 at 321.

¶ 27. As previously noted, Lytricia moved the court for specific findings of fact which support a substantial and material change in circumstances and to determine what were the adverse effects on the child. The chancellor stated:

I think the Court has done it. But just so we’ll make sure. The adverse affect on the child is the fact that the child is— a divorce decree that wasn’t finalized until November. In February the visitation. became a problem because the mother moved. And the therapist has— or the wife’s therapist, as well as the wife, testified that the child has anxiety and that it is not good for the child. So that’s got to be an adverse effect on the child, the fact that he moved and the prior decree could not be fully enforced as it was at the time of the divorce.

May Jane Montgomery, a mental health therapist, testified for Lytricia at the hearing, as follows:

Basically my opinion is that [William has] been through a lot and it’s going to affect him adversely. He’s not going through normal psychological childhood development. He’s kind of doing a few steps backwards because of this custody and visitation issue. I just hope that it’s over soon, however it ends, and that William can get past it. That’s what he want most and that he can get on with his life and excel and socialize and learn and be your typical little eight year old boy instead of such a heavy weight on him.

Montgomery specifically testified that William’s problems of anxiety were a result of the litigation initiated by the father and not a result of the home environment and that she found nothing adverse to him as a result of his living with his mother. Thus, the record directly contradicts the chancellor’s findings and supports the conclusion that his finding was clearly erroneous and not supported by any evidence.

¶ 28. A custodial parent’s relocation without more is insufficient grounds for modification of child custody. Spain, 483 So.2d at 321. There was simply no evidence presented of any change in circumstances affecting the minor that could have supported the modification of the original decree and the transfer of primary custody to the father. We reverse and render the decision of the chancellor and return custody of the minor child to the mother.

¶ 29. THE JUDGMENT OF THE CHANCERY COURT OF LAWRENCE COUNTY IS REVERSED AND RENDERED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: KING, P. J.,

text:
    Winslow POE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00742-COA.
    Court of Appeals of Mississippi.
    Dec. 9, 2003.
    Rehearing Denied Feb. 24, 2004.
    Certiorari Denied May 13, 2004.

      Pearson Liddell, Louisville, attorney for appellant.
    Office of the Attorney General, by: Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, P.J., IRVING and GRIFFIS, JJ.
   KING, P. J.,

for the court.

¶ 1.; Winslow Poe was convicted of four counts of fondling pursuant to Mississippi Code Annotated Section 97-5-23. Poe was sentenced to ten years on each count to run concurrently in the custody of the Mississippi Department of Corrections. Poe’s motion fór a new trial was dehied. Aggrieved, Poe has appealed and asserts the following issue:

I. That the trial cóurt erred when it failed to grant the defendant’s motion for new trial because the weight and sufficiency of the evidence did not rise to the level necessary to prove beyond a reasonable doubt that the defendant committed fondling against four minor children.

STATEMENT OF FACTS

¶ 2. When arrested in December of 2000, Winslow Poe was a computer teacher at Henderson Elementary School in Stark-ville, Mississippi and had taught for approximately fourteen years.

¶ 3. Around December 7, 2000, a sixth grade male student at Henderson Elementary reported to the school principal, Walter Williams, that Poe had inappropriately touched him in the hallway, and that this was not the first occurrence. Principal Williams reported the incident to one of the administrators at Oktibbeha County School District, Dr. James Smith, and then called Poe into his office to notify him of the allegations. The following day Principal Williams, Asylee Gardner, the guidance counselor, and Smith called in four young men to inquire if they had been inappropriately touched by Poe. Three of the four young men stated that Poe had groped them multiple times during school hours, in the hallway between classes, and during the computer class that Poe taught. ■

¶4. When called into the office on December 8, 2000, Poe did not deny the allegations. Witnesses present at this conference, Dr. James Smith and Principal Walter Williams, both testified that Poe said he might have allowed himself to get too close to the children, but that he would never hurt them and was only trying to help them. Smith testified that Poe was “totally distraught” and admitted he had placed money in one of the children’s pockets. .

¶ 5. On December 11, 2000, a social worker at the Department of Human Services notified the Starkville Police Department that a mother had reported that her child had been molested at Henderson Elementary by Poe. Starkville Police Department then undertook an investigation of the matter. Detective William Durr was assigned the investigative responsibilities of this case. Durr went to Henderson to meet with Poe, and was informed that Poe was not there. Later, Durr discovered that Poe had been suspended from his teaching duties that morning. Durr found Poe at home. Poe agreed to accompany Durr to the police station for questioning. Poe talked with Detective Durr for about an hour. Poe made a written statement, which began: “For a period of time I have battled some homosexual tendencies.” Poe’s statement said that in his misguided directions he “inadvertently touched a few students in the genital area.” He specifically named the four victims of this case as having been inadvertently touched. Poe acknowledged that his actions were wrong and expressed remorse for what he had done and said, “I will immediately start counseling through my pastor and church. I will avail myself for other self-help programs available to me.”

¶ 6. Poe did not testify at trial. However, his handwritten statement to Detective Durr was admitted into evidence. Each of the four alleged victims testified that Poe touched them in the genital area. All four young men testified that they each gave Detective Durr a statement accusing Poe of touching them in the genital area on multiple occasions. All four statements were admitted into evidence. Two of the minor victims testified that on numerous occasions during class, Poe would lean over and touch and/or rub on their genitals while helping them with their work at their computer terminal.

¶ 7. A jury found Poe guilty on all four counts of child fondling, and he was sentenced to a period of ten years on each count, to run concurrently, in the custody of the Mississippi Department of Corrections.

ISSUE AND ANALYSIS

Whether the trial court erred in denying the defendant’s motion for new trial

¶ 8. Poe contends that neither the weight or the sufficiency of the evidence supports a verdict of guilty of fondling. Poe contends that the victims lacked credibility and their testimony was inconsistent and therefore incredulous. Poe suggests that the supposed lack of credibility and credulity required that he be granted a new trial.

¶ 9. A defendant who questions the sufficiency of the evidence asks the court to hold that the evidence is so lacking that his conviction must be reversed and that he must be discharged. Holloway v. State, 809 So.2d 598, 605(1121) (Miss.2000). In addressing the question this Court

[m]ust, 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.

Id.

¶ 10. The defendant who questions the weight of the evidence merely seeks a reversal of his conviction and a consideration of the evidence by a new fact finder. Isaac v. State, 645 So.2d 903, 907 (Miss.1994). When it is the weight of the evidence, this Court

[m]ust 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. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stan<] would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Baker v. State, 802 So.2d 77, 81 (¶ 14) (Miss.2001); citing Dudley v. State, 719 So.2d 180, 182 (Miss.1998).

¶ 11. Issues of witness credibility and the weight to be accorded a witness’s testimony are matters to be resolved by the trier of fact. Riley v. State, 797 So.2d 285, 288(¶ 12) (Miss.Ct.App.2001). In this case the fact finder was the jury.

¶ 12. Each of the minor victims testified that he was fondled by Poe. The unsupported testimony of the victim of a sex crime, which has not been discredited or contradicted by other credible evidence, is sufficient to support a guilty verdict. Williams v. State, 757 So.2d 953, 957(¶ 17) (Miss.1999); Collier v. State, 711 So.2d 458, 462(¶ 15) (Miss.1998). In this case the testimony of the minor victims is corroborated and given credence by Poe’s statement to the police.

¶ 13. In that statement, Poe admitted that he was battling homosexual tendencies, that he touched the genital area of each of the minor victims, that he knew his actions were wrong and that he felt great remorse for his actions. These admissions by Poe mitigate any inconsistencies in the testimony of the victims, and provided sufficient corroborative evidence to support a verdict of guilty.

¶ 14. There is no merit to Poe’s claim of error, and the convictions are affirmed.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF FOUR COUNTS OF FONDLING AND SENTENCES OF TEN YEARS ON EACH COUNT WITH FIVE YEARS OF POST-RELEASE SUPERVISION TO BE SERVED CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINES OF $1,000 ON EACH COUNT IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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


author: McMILLIN, C.J.,

text:
    Robert Eugene BERNARDINI, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00268-COA.
    Court of Appeals of Mississippi.
    April 27, 2004.

      David Clay Vanderburg, attorney for appellant.
    Office of the Attorney General by Charles W. Maris and Deirdre McCrory.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   McMILLIN, C.J.,

for the Court.

¶ 1. Robert Bernardini was convicted of capital murder in the death of his nineteen month old stepdaughter, Rachel Mackenzie Scruggs. He has appealed that conviction and asserts two grounds upon which he urges this Court to overturn his conviction. First, he contends that the trial court erred in failing to suppress an incriminating statement that he gave to investigating officers at a time when he was in custody. Secondly, he claims that he was denied a fundamentally fair trial asserting that (a) the prosecutor’s summation amounted to a constitutionally-impermissible comment concerning his constitutional right to remain silent as to the charges made against him, and (b) the prosecutor’s summation was based upon facts not in evidence.

2. We find thesé^ issues to be without merit and affirm the conviction.

I.

Facts

¶ 3. Bernardini’s stepdaughter died of trauma injuries suffered while she was in the sole care of Bernardini. Bernardini sought to explain the trauma as consisting of injuries received when the child fell from a chair while Bernardini was tending to a second child in another room in the home. The State presented expert testimony regarding the extent of the child’s injuries and evidence tending to show that the injuries were not consistent with a simple fall. Bernardini was indicted for capital murder with felony child abuse being the underlying felony. He was convicted and sentenced to life in prison.

II.

Suppression of Statement

¶ 4. After Bernardini was taken into custody as a suspect in the child’s death, he gave a statement to investigating officers. Prior to trial, counsel for the defendant sought to have the statement suppressed as being an involuntary statement made as a result of coercive tactics by the interrogating officer. The trial court declined to suppress the statement. Despite this finding that the statement was admissible, the prosecution did not attempt to offer it into evidence during its case in chief. Bernardini, however, did not take the stand in his own defense after the State rested, and he asserts in this appeal that he did not do so because of apprehension that the prosecution would use the inadmissible statement to impeach him on cross-examination.

¶ 5. Bernardini cites the Court to no authority for the proposition that the mere fear that a previously-unintroduced statement might be used in cross-examination works to deny -him a fundamentally fair trial by intimidating him from taking the stand in his own defense. In a somewhat related circumstance, there is at least the possibility that a trial court’s erroneous decision that a prior conviction may be used to impeach a testifying defendant may serve as such a deterrent that it will be seen as reversible error because of the chilling effect that ruling has on the defendant’s decision to testify. Heidelberg v. State, 584 So.2d 393, 395 (Miss.1991). However, the issue of a previously-made incriminating statement presents a different question. In the matter of a prior conviction, the defendant may unequivocally keep that evidence from the jury by not taking the stand since the conviction is admissible only for purposes of impeaching the defendant’s credibility under Mississippi Rule of Evidence 609(a). On the other hand, once the trial court rules that a custodial statement is admissible, the State has the opportunity to offer it into evidence without regard to whether the defendant takes the stand. In this case, the State, for reasons that do not appear in the record, elected not to offer the statement into evidence. It is purely speculative to suggest that the State would have attempted to belatedly offer the statement after ending its case in chief and then only if the defendant, Bernardini, took the stand in his own defense. Thus, because the trial court determined the statement to be admissible as bearing directly on the central issue of the defendant’s guilt rather than for some alternate and limited purpose such as witness impeachment, the court’s ruling cannot be seen as having any chilling effect on Bernardini in deciding whether or not he should take the stand in his own defense. This issue is without merit.

III.

Summation

¶ 6. During summation, the prosecuting attorney made'reference to evidence that the child’s face bore a bruise resembling the general shape of a human hand, indicating that the child had received a violent open-handed blow before her death. The attorney suggested to the jury that this fact, coupled with the uncontradicted evidence that Bernardini had sought assistance for the child, indicated that he had lost his temper and inflicted a terminal injury on the child before recovering his sensibilities enough to realize that he had made a tragic error in judgment.

¶ 7. Without citing any authority, Bernardini contends that this was an impermissible comment on his failure to testify' — apparently based on the contention that, if there were a better explanation of what had transpired, then Bernardini, being the only one who could relate that alternate version to the jury, would certainly have been expected to do so. We do not find that contention persuasive. There was no direct assertion that the defendant should have testified. The question, then, becomes whether the statement crossed the line that prohibits the prosecution from “referring by innuendo and insinuation to the defendant’s failure to testify.” Ladner v. State, 584 So.2d 743, 754 (1991). The argument was a fairly straight-forward analysis of the available evidence and invited the jury to draw what seems an entirely reasonable inference from that evidence. It was unaccompanied by any comment along the lines of “... and you have not heard any evidence to the contrary ...which the Mississippi Supreme Court has found prejudicial in those circumstances where it is evident that the defendant is the only person who could supply such contradictory-proof. Jones v. State, 669 So.2d 1383, 1390 (Miss.1995). We find this contention, therefore, to be without merit.

¶ 8. Alternatively, Bernardini asserts that the claim that he lost his temper was improper summation. This argument begins with the correct premise that final argument must be limited to analysis of the evidence actually presented at trial. Watts v. State, 828 So.2d 835, 840(¶ 9) (Miss.Ct.App.2000). It then proceeds to Bernardini’s contention that there was no testimony that he had lost his temper with the deceased child and the State was, therefore, arguing facts not in evidence. As we previously observed, the jury sitting as the finder of fact in a criminal trial is entitled to draw reasonable inferences from the evidence in reaching its decision. Pryor v. State, 771 So.2d 958, 960-61(¶ 9) (Miss.Ct.App.2000). The suggestion that the proof, showing beyond question that this child, prior to her death, received a violent open-handed blow to the face would support an inference that some adult with access to the child was acting out of extreme anger seems an entirely appropriate comment on the evidence and those reasonable inferences supported by the evidence that would aid the jury in arriving at a conclusion as to exactly what transpired in the time leading up to this victim’s death. We do not find this to constitute reversible error.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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


text:
    Michelle LOOMIS and Terri Forrester, Appellants v. Angela BUGG, Appellee.
    No. 2003-CA-00116-COA.
    Court of Appeals of Mississippi.
    April 27, 2004.

      Helen Kennedy Robinson, Holly Springs, attorney for appellants.
    Tracy Buster Walsh, attorney for appel-lee.
    Before McMILLIN, C.J., BRIDGES AND GRIFFIS, JJ.
   McMILLIN, C.J.,

for the Court.

¶ 1. This is a custody case concerning a young child whose father is deceased. The chancellor found that the child’s mother was unfit to have primary custody of the child and, instead, awarded custody to the child’s paternal aunt. In addition to the natural mother’s efforts to have custody of the child, the child’s maternal grandmother also appeared in the action asking that, if the mother’s request for custody was denied, then custody be awarded to her as the next closest living kin. Both the mother and maternal grandmother have appealed the decision of the chancellor. Upon reaching the conclusion that the chancellor’s decision is within the discretionary authority afforded him in such matters, we affirm.

I.

Facts

¶ 2. The child in this case, Hayden Bradley Smith, was born on December 31,1998, to Michelle Loomis and Jason Smith. At the time of the custody hearing in the proceeding, the mother, Ms. Loomis, was twenty-three years of age, and the father was deceased.

¶ 3. The proceeding was commenced jointly by one of the child’s paternal grandmothers and the deceased father’s sister (and, thus, the child’s aunt, Angela Bugg). The complaint sought a judgment making an award of custody of the child to Mrs. Bugg. Parties to the proceeding besides those already named included the child’s maternal grandmother, Terri For-rester. Mrs. Forrester’s husband was a party to the proceeding at the trial level, but he has not appeared before this Court as a party to the appeal.

¶ 4. The proceeding was commenced by the previously-identified relatives of the deceased father seeking an award of custody of the child based on the contention that the natural mother, Ms. 'Loomis, was an unfit person to have' custody and that the best interest of the child would be served by awarding custody to Mrs. Bugg. Mrs. Forrester entered an appearance to assert a claim that if custody were not awarded to Ms. Loomis, then the next best alternative for the child would be that custody be awarded to her and her husband.

¶ 5. Evidence was presented that showed that Ms. Loomis had experienced a rather unstable lifestyle since the death of Mr. Smith. She had moved repeatedly, been involved in the use of illegal narcotics including marijuana and crystal metham-phetámine, and had entered into multiple relationships with men to whom she was not married, including an extramarital relationship with a married man. Her employment history was similarly unstable, and there was evidence that she haphazardly left the child in the care of various relatives from time to time. No witnesses were presented who offered the view that Ms.' Loomis was an appropriate person to have the primary custodial care of the child. Rather, the thrust of the evidentia-ry hearing appeared to be in the nature of a contest for custody between relatives of the deceased father and relatives of the mother, Ms. Loomis.

¶ 6. At the conclusion of the hearing, the chancellor found that it had been shown by clear and convincing evidence that Ms. Loomis, in her present situation, was not a fit parent to have primary custody of the child. The chancellor then analyzed the various' competing considerations in making an appropriate custody determination that would advance the best interest of the child, using the factors commonly known in the jurisprudence of-this State as the “Al-bright factors” and concluded that an award of custody to Mrs. Bugg was appropriate. The court ordered visitation rights both to Ms. Loomis and to both grandmothers. Ms. Loomis’s visitation rights were restricted to the extent that they had to be exercised at a time when her mother, Mrs. Forrester, was present to supervise the visitation.

¶ 7. Both Ms. Loomis and Mrs. Forres-ter had appealed from that .determination by the chancellor. The appeal presents four issues for consideration. They are (a) whether the chancellor erred in finding Ms. Loomis to be unfit to have custody of her child; (b) whether it was reversible error for the „ chancellor to refuse to appoint a guardian ad litem for the child; (c) whether the award of custody to Ms. Bugg was an abuse of discretion; and (d) whether the chancellor committed an abusé of discretion in his applying the Albright factors.

¶ 8. For reasons we will proceed to set out, we find no error and affirm the chancellor.

II.

Denial of Custody to the Natural Mother

¶ 9. There exists in the law a presumption that the natural parents are the best caregivers for their children and, therefore, ought to have primary custody. Westbrook v. Oglesbee, 606 So.2d 1142, 1144-45 (Miss.1992). The chancellor may remove a child from the custody of a natural parent upon reaching the conclusion that'the custodial parent is unfit to perform the role of parent. Id. The proof demonstrating this unfitness must be greater than a mere preponderance and, rather, must rise to the level of being clear and convincing. Miss.Code Ann. § 93-15-109 (Supp.2003); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); S.N.C. v. J.R.D., Jr., 755 So.2d 1077, 1081(¶11) (Miss.2000). Nevertheless, the chancellor, sitting as finder of fact and hearing the evidence first hand, is best positioned to make critical determinations of witness credibility and to decide what weight and worth to afford any particular part of the proof. Polk v. Polk, 559 So.2d 1048, 1049 (Miss.1990). Those findings and conclusions are entitled to deference on appeal, and we may reverse only if we find that the chancellor was manifestly wrong or applied an incorrect legal standard. E.g., Sellers v. Sellers, 638 So.2d 481, 483 (Miss.1994).

¶ 10. In this case, there was ample evidence presented to show that this child’s mother had led an unstable life, including use of illegal narcotics, for an extended period of time and that her attention to the welfare of her child appeared to be of secondary interest to her. Rather, she was content to leave the day-to-day care of the child to relatives for over half the time since the death of the child’s father. In that situation, and without any compelling evidence to the contrary, we are unconvinced that the chancellor either ' (a) applied an improperly lower standard of proof or (b) was manifestly erroneous in assessing the weight and worth of the evidence such that his decision to award custody to Mrs. Bugg would constitute an abuse of discretion. In that situation, we can find no reason to disturb the chancellor’s determination.

III.

Failure to Appoint a Guardian ad Litem

¶ 11. There were no accusations of abuse or neglect of the child insofar as the evidence went to the care the child was receiving when in the control of family members other than the natural mother. There were no allegations that the physical arrangements offered for the care of the child by any of the competing family members was somehow inadequate or even questionable. Thus, there did not appear to be a need for the sort of neutral investigatory work that is typically performed by a guardian ad litem in a disputed custody proceeding. Rather, it would seem that essentially all a guardian ad litem could have done was to consider the same information that was presented to the chancellor in open court and then offer the guardian’s opinion as to what arrangement would best serve the child’s interest.

¶ 12. Except in cases where there are legitimate issues of abuse or neglect, the appointment of a guardian ad litem remains a matter vested in the sound discretion of the chancellor. Miss.Code Ann. § 93-5-23 (Supp.2003); Scroggins v. Riley, 758 So.2d 467, 472(¶ 19) (Miss.Ct.App.2000). Because of the apparently limited assistance a guardian ad litem could have rendered in this case, we cannot agree that the chancellor’s decision against making such an appointment constituted such an abuse of discretion as to constitute reversible error.

IV.

Abuse of Discretion in Awarding Custody

¶ 13. We combine our consideration of the final two issues raised in appellants’ brief because they both raise essentially the same issues. Once the chancellor determined that the child’s sole surviving natural parent was not fit to have, custody of the child, it became the chancellor’s duty to make a decision as to custody that would be guided by the single overriding concern of what would be in the best interest of the child. Riley v. Doerner, 677 So.2d 740, 743 (Miss.1990).

¶ 14. The Mississippi Supreme Court has identified a number of specific factors that the chancellor must consider in the process of reaching that ultimate decision, and they have come to be widely known as the “Albright factors,” having first been succinctly set out in the case of Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

¶ 15. In this case, the chancellor, in making his ruling from the bench, gave a lengthy and detailed statement of each Albright factor followed by his analysis of the evidence relevant to that particular point. It is evident that the chancellor conducted a thorough review of the available evidence and offered well-thought-out conclusions as to how that evidence factored into the relevant Albright factors. In the end, the chancellor appeared to give some weight to the fact that the child’s maternal grandmother, during previous times when she had the care of the child, did not appear to be sufficiently concerned regarding the circumstances in which Ms. Loomis was living when she would exercise one of her sporadic periods of taking physical custody of the child. Operating on the premise that the best predictor of future behavior is past behavior, the chancellor expressed concern that the pattern would be continued — a situation that the chancellor concluded would not advance the child’s best interest.

¶ 16. The appellants’ argument that the chancellor abused his discretion in awarding custody consists primarily in taking issue with this contention, pointing out that the maternal grandmother had more continuity of care of the child than did the paternal aunt and in asserting that the grandmother, being nearer in kinship, should be afforded some preference in the custody award.

¶ 17. We do not think that the chancellor’s concerns regarding the future care of the child if custody was given to the maternal grandmother were so baseless that it would constitute an abuse of discretion to factor them into the custody determination. Having said that, it then becomes logically apparent that any claim of advantage based on continuity of care simply disappears. Finally, we are aware of no hard and fast rule that gives preference in a custody dispute such as this to any particular litigant based solely on the degree of kinship. Certainly, it would not be in error to factor in kinship as one consideration because of the natural affection that almost universally flows between family members; however, the simple fact that Mrs. Bugg was a slightly more distant relative than Mrs. Forrester, standing alone, would not seem to give any particularly strong advantage to Mrs. Forrester. Without something more to cast doubt on the chancellor’s explanation of his decision regarding custody, we do not find reversible error in the failure to award custody based solely on degree of kinship to the child. Based on our limited scope of review in matters such as this that are entrusted to the sound discretion of the chancellor, we do not find any basis to disturb the chancellor’s determination.

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

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


text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellant v. Ouida J. CLAIBORNE, Appellee.
    No. 2003-CC-00068-COA.
    Court of Appeals of Mississippi.
    April 27, 2004.

      Albert B. White, Madison, attorney for appellant.
    Ouida J. Claiborne, appellee, pro se.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   McMILLIN, C.J.,

for the Court.

¶ 1. After being terminated from her job at the Isle of Capri Casino, Ouida J. Claiborne applied for unemployment compensation benefits. The Commission denied her right to receive benefits on a finding that she had been terminated for disqualifying misconduct. On appeal, the Circuit Court of Warren County reversed the decision of the Commission, finding that, by the employer’s own assertions, Claiborne was terminated for “unsatisfactory performance,” and that unsatisfactory performance alone does not rise to the level of disqualifying misconduct.

¶2. This Court, having reviewed the record de novo, as is our obligation in appeals of this nature (see Sprouse v. MESC, 639 So.2d 901 (Miss.1994)), concludes that there was substantial evidence in the record to support a determination by the Commission that Claiborne’s persistent failure to perform easily-accomplished but nevertheless important duties of her job demonstrated “carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability ... showing an intentional ... disregard of the employer’s interest.” Wheeler v. Arriola, 408 So.2d 1881, 1383 (Miss.1982). Such a finding requires that the employee be disqualified from receiving benefits. Miss.Code Ann. § 71-5-513 (Supp.2003).

¶ 3. Evidence presented to the Commission showed that Claiborne had received numerous corrective action reports during two years of employment, and that in the period from January 31, 2002 through March 2, 2002, she received four separate write-ups for failure to properly carry out her duties. Those final four alleged failures to properly perform included a failure to properly close and verify the locking of a slot machine door; the unexcused failure to respond to a radio call; failure to follow proper protocol in paying out a jackpot; and over-filling a slot machine hopper.

¶ 4. Judicial review of a decision of an administrative agency of the government is a limited exercise. Johnson v. MESC, 767 So.2d 1088, 1090(¶ 7) (Miss.Ct.App.2000). The reviewing court does not review the evidence .to arrive at its own interpretation of where the preponderance lies. MESC v. Hudson, 757 So.2d 1010, 1013(¶ 9) (Miss.Ct.App.2000). Rather, so long as there is substantial evidence in the record to support the agency decision, the appellate court must affirm even were that court to feel that the preponderance of the evidence supported a different outcome. Miss.Code Ann. § 71-5-531 (Rev.2000); Caraway v. MESC, 826 So.2d 100, 102(¶ 7) (Miss.Ct.App.2002). We find that there was such evidence in this case.

¶ 5. Alternatively, the appellate court may intercede if it determines that the agency applied an incorrect legal standard. E.g., MESC v. Universal Wearparts, Inc., 766 So.2d 104, 106(¶ 5) (Miss. Ct.App.2000). The circuit court appears to have seized on this aspect of the law to reverse when it lifted the phrase “unsatisfactory work performance” from a report that attributed that terminology to the employer’s Human Resources Clerk. From there, the circuit court offered the view that, as a matter of law, mere unsatisfactory performance could not rise to the level of misconduct.

¶ 6. With respect for the reasoning of the circuit court, we find that contention unpersuasive. There is no indication that the clerk who offered the characterization of the reason for Claiborne’s termination understood it as being a legal term of art. It is the actual facts surrounding the grounds for termination that control and not the terminology by which some individual attempts— perhaps incorrectly — to offer a summary definition of the basis for termination that controls the question. We have little trouble in finding that prolonged and persistent failure to perform routine duties that the employee is capable of performing properly, especially when that employee is given repeated warnings of those failures but apparently refuses to heed those warnings, may rise to the level of disqualifying misconduct as that term has been defined by statutory enactment and subsequent judicial interpretation.

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY IS REVERSED AND RENDERED, THUS REINSTATING THE DECISION OF THE MISSISSIPPI EMPLOYMENT SECURITY COMMISSION THAT THE APPELLEE HEREIN WAS DISQUALIFIED FROM RECEIVING UNEMPLOYMENT COMPENSATION BENEFITS.

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


author: IRVING, J., GRIFFIS, J.,

text:
    CITY OF HATTIESBURG, Mississippi, Appellant v. THIRTY-FIVE THOUSAND THREE HUNDRED SEVENTY DOLLARS, Appellee.
    No. 2002-CA-01899-COA.
    Court of Appeals of Mississippi.
    May 4, 2004.
    Charles E. Lawrence, attorney for appellant.
    Glenn Louis White, Petal, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. On September 17, 2002, the City of Hattiesburg Police Department (City) seized $35,370 in cash belonging to J.T. Keys. Keys filed a motion seeking the return of the money, and the trial judge subsequently entered an order directing the City to return the money to him. The City of Hattiesburg appeals the trial judge’s decision and presents the following issues for review: (1) whether the issuance of a summons pursuant to Rule 4 of the Mississippi Rules of Civil Procedure is necessary to invoke the jurisdiction of the court, (2) whether service of process was obtained over the City of Hattiesburg sufficient to constitute process by mail in compliance with Rule 4(c)(3) or Rule 4(c)(5) of the Mississippi Rules of Civil Procedure, (3) whether the City was entitled to thirty days in which to file a petition for forfeiture of the seized $35,370 pursuant to section 41-29-177 of the Mississippi Code of 1972 as amended, or whether the statutory time period may be reduced by the claimant’s filing of a motion or petition to contest forfeiture. Finding no error, we affirm the trial judge’s decision.

FACTS

¶ 2. On September 17, 2002, Hattiesburg police officers stopped a vehicle driven by Patrick Sims. A search of the vehicle revealed no contraband or other illegal items, but the officers seized $35,370 in cash. Sims informed the officers that the vehicle and cash belonged to J.T. Keys. The vehicle was towed and later released to Keys, but the police department did not release the money.

¶ 3. On October 8, 2002, Keys filed a motion to return the property or, in the alternative, a petition to contest forfeiture of the seized property. That same day, Keys also filed a notice of hearing, indicating that the motion would be heard on October 29, 2002. He served, via certified mail, a copy of the motion and notice of hearing on the mayor of the City and the district attorney. On the day of the hearing, Keys filed a copy of the return receipt showing service on the mayor and district attorney. On October 29, 2002, the court signed an order directing the City to return the money to Keys.

¶ 4. After the order was signed, the court found out that the City had a problem with returning the money to Keys. The court, in response, directed the clerk to postpone filing the order, and thereafter scheduled a conference with all concerned parties. The matter was set for a formal hearing, and on November 7, 2002, the trial judge heard oral arguments from both the Keys and the City regarding the October 29 order. At the conclusion of the hearing, the court again entered an order directing the release of the money to Keys and specifically found that neither the “state of Mississippi, [the] Hattiesburg Police Department and Metro Narcotics nor any other law enforcement officer [filed] a notice of seizure or indicated on what basis they intend [sic] to seize any property or give any explanation as to who will [sic] seize the property.” Thereafter, the City perfected this appeal. Additional relevant facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 5. The City first argues that jurisdiction never vested in the Forrest County Circuit Court because a summons was not issued to the City by the court clerk pursuant to Rule 4 of the Mississippi Rules of Civil Procedure. The City further maintains that Keys was not in compliance with Rule 4(c)(3) of the Mississippi Rules of Civil Procedure, and thus the City, through its mayor, was not provided with sufficient notice. In addition, the City claims that the notice of hearing did not constitute process, and was insufficient service of process by mail under Rule 4. Further, the City contends that, as the seizing agency, it was entitled to thirty days in which to file a petition for forfeiture, and once Keys initiated the process by filing a petition to contest forfeiture, the City was entitled to receive notice by way of a summons and had a right to respond by filing a responsive pleading. Finally, the City argues that a judgment should not have been taken against it before it was given thirty days in which to respond.

¶ 6. Section 41-29-177(1) of the Mississippi Code of 1972 as amended states that “[e]xcept as otherwise provided in section 41-29-176, Mississippi Code of 1972, when any property, other than a controlled substance, raw material or paraphernalia, is seized under the Uniform Controlled Substances Law, proceedings under this section shall be instituted within thirty (30) days from the date of seizure or the subject property .shall be immediately returned to the party from whom seized.”

¶ 7. On September 17, 2002, Hattiesburg police officers seized $35,370 belonging to Keys. The thirty days in which the City had to institute forfeiture proceedings expired on October 17, 2002. The City did not institute forfeiture proceedings within the prescribed time period. On November 7, 2002, a formal hearing, with all parties present, was held in the matter of the seizure. Even then, which was fifty-one days after the seizure, the City had still not instituted forfeiture proceedings. Because the City did not institute forfeiture proceedings within thirty days as required by statute, we find it unnecessary to address the issues raised by the City. Suffice it to say that nothing Keys did prevented the City from complying with the statute. Key’s filing of his motion to return his property was independent of and had no bearing on the City’s obligation to file forfeiture proceedings within the thirty-day period. As a result, we agree with the trial judge’s decision to return the money to Keys.

¶ 8. The dissent admits that the City was obligated to promptly commence for-' feiture proceedings, but inexplicably argues that the City’s failure to initiate forfeiture proceedings promptly “does not permit a summary determination of the City’s interest in the seized property or excuse Key’s obligation to institute a civil action in accordance with the Mississippi Rules of Civil Procedure.” The dissent cites no authority for its position which is in direct conflict with the provisions of section 41-29-177(1) which unequivocally states that forfeiture proceedings “shall be instituted within thirty (30) days from the date of seizure or the subject property shall be immediately returned to the party from whom seized.”

¶ 9. It is clear from the statutory scheme providing for forfeiture of property with a value of $10,000 or greater that the petition for forfeiture “shall be filed in the name of the State of Mississippi, the county or the municipality” and shall be served upon the owner of the property if his address is known. Miss.Code Ann. § 41-29-177(2) (Rev.2001). The City never instituted forfeiture proceedings. There is no dispute or question regarding this fact. Therefore, we cannot understand the dissent’s reasoning that Keys was obligated “to institute a civil action in accordance with the Mississippi Rules of Civil Procedure.” Keys was not obligated to institute anything because the value of the property exceeded $10,000. The obligation to institute forfeiture proceedings rested with the City.

¶ 10. Perhaps, the dissent has confused the administrative forfeiture procedures for property with a value of less than $10,000 with the judicial forfeiture procedures for property having a value of $10,000 or greater. The former is governed by section 41-29-176 while the latter is governed by section 41-29-177. When an administrative forfeiture proceeding has been instituted against property with a value of less than $10,000, any person claiming an interest in the property may file a petition to contest the forfeiture. If such a contest is filed by a claimant, the petition must be served on “the attorney for or representative of the seizing law enforcement agency, and the proceedings shall thereafter be governed by the rules of civil procedure.” Miss.Code Ann. § 41-29-176 (Rev.2001). . .

¶ 11. As we have already observed, the forfeiture proceedings in the case before us, because of the value of the property involved, had to be instituted by the City pursuant to section 41-29-177 which requires that forfeiture proceedings be instituted within thirty days. The City never instituted such proceedings. Therefore, in accordance with the requirement of section 41-29-177(1), the seized property had to be returned to Keys, the party for whom it was seized.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

GRIFFIS, J.,

dissenting.

¶ 13. Whether the City of Hattiesburg instituted forfeiture proceedings within the statutorily required period is not the issue to be decided in this appeal. Because I find that service of process was not properly obtained over the City pursuant to Rule 4 of the Mississippi Rules of Civil Procedure, I respectfully dissent.

¶ 14. Mississippi Code Annotated Section 41-29-176 (Rev.2001) establishes the statutory procedure for governmental entities to follow for the disposition of seized property and forfeiture of property valued at less than $10,000. Mississippi Code Annotated Section 41-29-177 (Rev.2001) establishes the procedure for property valued'at more than $10,000. Under both of these statutes, the governmental entity has certain obligations. If the governmental entity fails to comply with its obligations, the owner of the property seized certainly has recourse to recover the property by commencing a legal action in the courts of this State. The Mississippi Rules of Civil Procedure govern the procedure of such legal action. M.R.C.P. 1

¶ 15. Indeed, prompt action by the City to commence forfeiture proceedings is required. However, the City’s failure to take prompt action in and of itself does not permit a summary determination of the City’s interest in the seized property or excuse Keys’ obligation to institute a civil action in accordance with the Mississippi Rules of Civil Procedure.

¶ 16. The majority questions my conclusions in the preceding paragraph. Indeed, the statute requires the commencement of forfeiture proceedings within a certain period of time. However, in this appeal, we are presented with a jurisdictional question that is governed not by the statute, which may dictate the ultimate resolution of this claim, but by the Mississippi Rules of Civil Procedure, which require proper service of process for the circuit court to acquire jurisdiction. The City, as any other defendant, is to be allowed notice and an opportunity to defend a legal action filed against it. Based on the record before us and the circuit court’s summary disposition of this case, my conclusion is based on the procedure and jurisdictional issue, not the ultimate outcome.

¶ 17. Keys commenced his civil action by filing his pleading, styled the “Motion to Return Property or in the Alternative Petition to Contest Forfeiture of Seized Property,” before the Circuit Court of Forrest County, Mississippi.

¶ 18. In adopting and promulgating the Mississippi Rules of Civil Procedure, the Mississippi Supreme Court established the appropriate methods for service of process. Here, Rule 4 required personal service on the Mayor of the City of Hattiesburg. Keys failed to obtain proper service of process, and the City properly preserved this error for appeal. Service by certified mail on the City was insufficient. M.R.C.P. 4(d)(7). Therefore, jurisdiction never vested with the circuit court. Mansour v. Charmax Industries, Inc., 680 So.2d 852, 855 (Miss.1996). Keys may ultimately be entitled to the property. However, neither Keys nor the majority reveal any exception from the requirement of proper service of process.

1119. Instead, the majority concludes that the ends justifies the means. The result is that we now hold that there are certain situations or circumstances where the Mississippi Rules of Civil Procedure do not apply. I find no authority to support such decision, and the majority cites no authority for its decision to disregard the explicit requirement in Rule 4 of the Mississippi Rules of Civil Procedure. The City, as any other defendant, is entitled to proper notice and should be allowed an opportunity to defend or present any claim that it may have against the' property.

¶ 20. For these reasons, I would reverse the circuit court’s judgment and remand for further proceedings.

SOUTHWICK, P.J., JOINS THIS SEPARATE WRITTEN OPINION.

      . Sims was cited for making an improper turn and failure to have insurance. No criminal charges were brought against Sims or Keys.

      . The judge released the money to Keys based on representation from the district attorney’s office and a letter attached to the order from the Forrest/Perry County Metro Narcotics Task Force indicating that they would not pursue the case.


author: BRIDGES, P.J.,

text:
    In the Interest of the Minor Child C.A.
    No. 2003-CA-00060-COA.
    Court of Appeals of Mississippi.
    May 4, 2004.
    David M. Ratcliff, attorney for appellant.
    Michael Wayne Thompson, Laurel, attorney for appellee.
   BRIDGES, P.J.,

for the Court.

¶ 1. It is alleged that on April 8, 2002, C.A., a fourteen-year-old child, caused bodily injury to W.J., a three-year-old child, “by touching him in his private area.” This allegedly occurred when the mother of W.J. left him with the mother of C.A. during the months of April and May 2002. On December 17, 2002, C.A. was tried and adjudicated a delinquent on petition filed in the Youth Court Division of the County Court of Jones County alleging a violation of Mississippi Code Annotated section 97-3 — 7(l)(a), also known as the simple assault statute, by knowingly, and unlawfully causing bodily injury to another minor “by touching him in his private area.” C.A.’s disposition was deferred until the minor could be screened and listed on the register for placement in the sexual offender’s program at Youth Village.

¶2. At trial, the State presented five witnesses to prove beyond a reasonable doubt that C.A. actually caused bodily injury. The witnesses included Latoya Nix, an expert in counseling sexually abused children; Sharon McMahan, an employee of the Center for the Prevention of Child Abuse; Christy Jones, a friend of W.J.’s mother, S.J.;' W.J.’s mother, and the victim.

¶ 3. C.A. filed a motion for a new trial or in the alternative an appeal with superse-deas. The Youth Court denied the motion for a new trial and allowed this appeal with supersedeas.

STATEMENT OF THE ISSUES

I. WHETHER THE STATE MET ITS BURDEN OF PROOF BY PROVING THE MINOR C.A. COMMITTED ALL OF THE ESSENTIAL ELEMENTS OF THE CHARGE BEYOND A REASONABLE DOUBT.

II. WHETHER THE ADJUDICATION OF THE MINOR, C.A., AS WAS SUPPORTED BY THE EVIDENCE.

ANALYSIS

I. WHETHER THE STATE MET ITS BURDEN OF PROOF BY PROVING THE MINOR C.A. COMMITTED ALL OF THE ESSENTIAL ELEMENTS OF THE CHARGE BEYOND A REASONABLE DOUBT.

II. WHETHER THE ADJUDICATION OF THE MINOR, C.A., AS WAS SUPPORTED BY THE EVIDENCE.

¶ 4. Since the issues in this case are so closely related and require the same discussion, for the purposes of convenience and efficiency, we combined these two issues in our discussion.

¶ 5. C.A. claims that the State failed to prove beyond a reasonable doubt each element of the crime. C.A. contends that the State failed to meet its burden of proof, and his adjudication as a delinquent should be reversed because the State failed to prove each element of the crime with which he was charged. C.A. argues that the State did not carry its burden because no evidence was adduced that W.J. suffered any bodily injury.

¶ 6. For clarification purposes, we point out that a petition in Youth Court is the document that contains the allegation of why the child is said to be a delinquent. It is the equivalent of an indictment for an adult. The petition in this case stated that C.A. “did purposely, knowingly, and unlawfully cause bodily injury to W.J. by touching him in his private area in violation of § 97-3-7(1)(a) of the Mississippi Code.... ” Section 97-3-7 of the Mississippi Code Annotated states

A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm;

Because the petition stated that C.A. “did purposely, knowingly, and unlawfully cause bodily injury” to W.J., C.A. argues that the prosecutor bore the burden of proving that he did knowingly cause bodily injury to W.J.

¶7. If the petition had charged C.A. with attempting to cause bodily injury, we would probably be more inclined to agree with the trial court in its decision. But the petition never spoke to the issue of attempting. Therefore, we are left to determine whether the evidence was sufficient to support a determination that C.A. did, in fact, cause bodily “injury.” Reynolds v.

State, 818 So.2d 1287, 1288(¶3) (Miss.Ct.App.2002) (charge must be proven as laid in the indictment); see Murrell v. State, 655 So.2d 881, 883 (Miss.1995).

¶ 8. Since the Reynolds case followed the case of Murrell v. State, 655 So.2d 881 (Miss.1995), we will start there. In Murrell, the Mississippi Supreme Court noted that “a minor injury is a ‘bodily injury’ even though it may not be a traumatic injury.” Murrell, 655 So.2d at 884 (citing Reining v. State, 606 So.2d 1098, 1103 (Miss.1992)). The Murrell court did not require medical evidence of bodily injury to support a guilty verdict, but simply ruled that testimony that the injured party experienced pain would suffice. Id. The court held, however, that no evidence was introduced on the issue of bodily injury, not even testimony that the allegedly injured officer experienced pain due to the injury. The court noted: “[Tjhere are no Mississippi cases which address the issue of whether a jury can infer that one suffers pain where there is no medical treatment, no wound and no testimony concerning pain.” Id. The court declined to infer pain, holding that it is a simple task to ask the officer at trial whether he experienced pain. Id.

¶ 9. In Reynolds, The Mississippi Court of Appeals found Murrell to be controlling and stated that “[e]ven a glancing blow with a fist is capable of producing pain, but as the Murrell court pointed out, ‘either the officer suffered pain or he did not and it is a simple task to ask him.’ ” Reynolds, 818 So.2d at 1288 (quoting Murrell, 655 So.2d at 885). The Reynolds court continued by stating that Mississippi Code Annotated section 97-3-7, in its statutory definition of simple assault, includes, in the alternative, both the actual infliction of bodily injury and the attempt to do so. Id. In discussing the two paths provided by section 97-3-7, the court in Reynolds proceeded by saying:

The form of the statute offers the State alternative paths to arrive at the same result, but it must inform the defendant of the path it chooses in the language of the indictment. Murrell, 655 So.2d at 884. Having chosen to charge the actual infliction of bodily injury, rather than an ineffectual attempt to inflict injury, the State thereby chose to make actual bodily injury- an element of the crime, but supported that charge with evidence too weak to withstand a claim that the verdict of guilty was against the weight of the evidence.

Id. at 1289.

¶ 10. In the present case, the judge was not given the option of an attempt charge and our reading of the Murrell and Reynolds decisions leaves us convinced that our only option is to reverse and render. Unfortunately, the record is devoid of any questions or answers regarding injury. Although touching was mentioned, even by the victim, there was nothing about pain, hurt or injury caused at the hands of C.A. “The circumstantial evidence should be supportive of, not in lieu of, the direct testimony readily at hand.” Murrell, 655 So.2d 885.

¶ 11. Let it be noted that the Murrell court cited a case, Reining v. State, 606 So.2d 1098 (Miss.1992), where the defendant, on appeal, argued that Mississippi Code Annotated section 97-3-7(1) was unconstitutionally vague because it does not define “bodily injury.” In reference to the Reining case, the Murrell court stated that it recognized that “although a statute imposing criminal penalties must be strictly construed in favor of the accused, it should not be so strict as to override common sense or statutory purpose.” Murrell, 655 So.2d at 884 (quoting Reining, 606 So.2d at 1103, citing United States v. Brown, 333 U.S. 18, 25, 68 S.Ct. 376, 92 L.Ed. 442 (1948)). The court in Reynolds provided the simple solution of just asking the person if he or she was in pain because either he suffered pain or he did not. Reynolds, 818 So.2d 1288(¶ 4) (quoting Murrell, 655 So.2d at 885). Although this seems like a simple solution when the case involves an adult, when there is a child involved, such as in this case, more specific and leading questions may be asked of the child to ascertain whether he or she sustained bodily injury.

¶ 12. The facts of the case sub judice fit the mold of a sexual touching or handling case. Had the defendant been eighteen years of age, or older, at the time of the alleged crime he could have been indicted pursuant to § 97-5-23 of the Mississippi Code Annotated (Rev.2000). Since that is not the case, the defendant can not be tried under said statute.

¶ 13. Therefore, we reverse and render.

¶ 14. THE JUDGMENT OF THE YOUTH COURT OF JONES COUNTY IS REVERSED AND RENDERED. COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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


author: SOUTHWICK, P. J.,

text:
    Carlos Fernanda JACKSON a/k/a Los, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-01349-COA.
    Court of Appeals of Mississippi.
    May 4, 2004.

      Carlos F. Jackson, Appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   SOUTHWICK, P. J.,

for the Court.

¶ 1. Carlos F. Jackson filed a petition seeking post-conviction relief in circuit court. Jackson had earlier pled guilty to murder and to one count of aggravated assault. He was sentenced to life in prison for murder and twenty years for aggravated assault to be served consecutively to his sentence for murder. In his later petition for post-conviction relief, Jackson claimed his right to due process was violated because he was not informed of the elements of murder, there was no factual basis established for murder and aggravated assault, and his counsel was ineffective. His petition was denied. From this, Jackson appeals. We affirm.

DISCUSSION

1. Voluntariness of guilty plea

¶2. Jackson attacks the voluntariness of his guilty plea. He claims that he was not aware that an element of murder was a “deliberate design” to kill his victim and that the court never explained this to him. Jackson also, claims that there was no factual basis supporting his guilty plea. for murder and for aggravated assault.

¶ 3. Before accepting a guilty plea, the court examines for a factual basis for the crime and that the plea is entered knowingly, intelligently, and voluntarily:

3. Voluntariness. Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced-by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.
4. Advice to the Defendant. When the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine:
a. That the accused is competent to understand the nature of the charge;
b. That the accused understands the nature and consequences of the plea ...
c. That the accused understands that by pleading guilty [that he is waiving the rights to a trial],

URCCC. 8.04 A.

¶ 4. At Jackson’s plea hearing, the district attorney described what the State would attempt to prove. It would call witnesses who would testify about prior conflicts between Jackson and .the victim. There would be evidence that Jackson was waiting for the two soon-to-be victims in an apartment. The State would also attempt to prove that during the confrontation the murder victim was trying to leave the premises and Jackson shot him. Then he shot the other man who was waiting in a car. After this rendition, the court asked Jackson: “Do you agree ... that if the jury ... believed the witnesses and evidence for the State, are you satisfied the State would have enough evidence to prove you guilty?” Jackson response was: ‘Tes.”

¶ 5. The court after questioning Jackson was satisfied that he understood that he was waiving the rights he would have during a trial. Jackson stated that he understood this. There was dialogue between Jackson and the court discussing self-defense. Jackson stated that he thought the murder victim “was going to reach for a weapon and I fired a gun.” The court continued:

THE COURT: If you testified to the jury just like you did here today, you’d be entitled for the Court to instruct the jury on self-defense. Do you understand that?
JACKSON: Yes, sir.
THE COURT: And you understand if they did find you were, in fact, acting in self-defense they would find you not guilty. Do you understand that?
JACKSON: Yes, sir.
THE COURT: All right. Now, do you understand by pleading guilty you’re waiving those defenses?
JACKSON: Yes, sir.

¶ 6. Even though Jackson raised a possible basis for self-defense, he also acknowledged that he had discussed the possible defense with his attorney and still wished to plead guilty. There was evidence mentioned by the State that the murder victim was walking away from Jackson at the time he was shot. There was sufficient information for the judge to conclude there was a factual basis connecting Jackson to the crime and the prosecution would be able to cause a jury to reach an appropriate verdict of guilt.

¶ 7. Federal rules require a court to use “sound judicial discretion” in accepting or rejecting a guilty plea. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The Federal Rules of Criminal Procedure state that “[a]ll that is required is that the court be satisfied that there is a factual basis for the plea, and not necessarily that the defendant is guilty.” CHARLES Alan Wright, Federal Practioe and Prooedure, § 174 at 616 (1982). Those rules are reasonable and consistent with what is required in state practice as well.

¶ 8. The question here was whether Jackson shot with a deliberate design to kill and not in necessary self-defense. His intent can be inferred through his actions. He came to the apartment carrying a gun and shot at the victims. A jury would have been able to infer this intent. There was a factual basis for the judge, within his discretion, to accept the guilty plea.

2. Ineffective assistance of counsel

¶ 9. Jackson next argues that he was denied effective assistance of counsel. He must establish that his attorney’s performance was defective, that this prejudiced him, and that the outcome of the proceedings would have been different if not for this deficiency. Strickland v. Washington, 466 U.S. 668, 682, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985). Jackson must argue with specificity the behavior of his attorney amounting to “unreasonable legal assistance.” Leatherwood, 473 So.2d at 968.

¶ 10. Jackson’s petition to enter a plea of guilty stated “I believe that my lawyer has done all that anyone could do to counsel and assist me on this charge. I am satisfied with the advice and help he has given me.” During the plea hearing, the judge also questioned Jackson about his attorney:

THE COURT: Has [Mr. Collette] in your opinion done everything as your attorney that he should have done to properly represent you?
JACKSON: Yes, sir.
THE COURT: Is there anything that he’s done that you disagree with?
JACKSON: No, sir.
THE COURT: Anything he has not done you believe he should have done?
JACKSON: No, sir.
THE COURT: Are you fully and completely satisfied with the services that he’s rendered to you as your attorney?
JACKSON: Yes sir.

¶ 11. Statements made under oath in open court have a strong presumption of truthfulness. Mowdy v. State, 688 So.2d 738, 743 (Miss.1994). Mr. Collette, Jackson’s attorney, also signed a certificate stating that in his opinion the plea of guilty was voluntarily and understandingly made. Jackson has not established that he was given ineffective assistance of counsel. Jackson’s guilty plea, statements he made during the plea hearing, and his attorney’s signed certificate demonstrated that there was, in fact, effective assistance.

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

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


author: LEE, J.,

text:
    Lazente Carnell WILLIAMS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00650-COA.
    Court of Appeals of Mississippi.
    May 4, 2004.

      Lazente Carnell Williams, Appellant, pro se.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On February 11, 1998, in the Circuit Court of Lee County, Lazente Carnell Williams pled guilty to two counts of burglary and, on March 11, 1998, pled guilty to one count of possession of cocaine. Williams was sentenced to five years on each burglary count, to run concurrently, with three years of each sentence suspended. Williams was sentenced to three years on the possession charge, with one year suspended. The lower court ordered that the possession charge was to run concurrently with the burglary charges and that each of the sentences were to run concurrently with a federal sentence that Williams was to serve in the federal penal system. On December 11, 2002, Williams filed a petition for writ of error coram nobis. The trial court treated Williams’s petition as a motion for post-conviction relief and dismissed the motion as time-barred. Williams now appeals to this Court asserting that his guilty plea was not knowingly and voluntarily entered into and that the trial court erred in not considering his ineffective assistance of counsel claim. Finding these issues to be without merit, we affirm the dismissal of post-conviction relief.

DISCUSSION OF ISSUES

¶ 2. In reviewing a trial court’s dismissal of post-conviction relief, our standard of review is well stated. We will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo. Pace v. State, 770 So.2d 1052 (¶ 4) (Miss.Ct.App.2000).

¶ 3. Williams argues that his guilty plea was not entered into either knowingly or voluntarily and that the trial court erred in not considering his ineffective assistance of counsel claim. However, according to Mississippi Code Annotated Section 99-39-5(2) (Supp.2003), “[a] motion for relief under this article shall be made ... in case of a guilty plea, within three (3) years after entry of the judgment of conviction.” As Williams entered his guilty pleas on February 11 and March 11 of 1998, and his motion for relief was filed more than three years later, we find that the motion was properly dismissed as time-barred.

¶ 4. Regardless of the time bar, Williams’s other claims are also without merit. According to the Mississippi Supreme Court, if the defendant is advised regarding the nature of the charge and the consequences of the plea, then the plea is considered voluntary and intelligent. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). Furthermore, “[sjolemn declarations in open court carry a strong presumption of verity.” Baker v. State, 358 So.2d 401, 403 (Miss.1978). In the present case, the record reflects that Williams was informed of the charges against him and the possible sentence. The record also reveals that Williams admitted to committing the crimes charged. In light of the fact that Williams stated under oath that he understood the consequences of pleading guilty and that no one had made any representations to him regarding his sentence, we find Williams’s argument that his plea was not voluntary to be without merit.

¶ 5. In his argument concerning ineffective assistance of counsel, Williams merely claims that his attorney did not inform him of the consequences of the guilty plea. While looking to the totality of the circumstances, we must determine whether Williams proved his counsel’s performance was deficient and whether this deficiency resulted in prejudice to Williams. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It is clear from the record of the plea colloquy that Williams was informed of the consequences of his guilty plea. We cannot find that Williams was denied effective assistance of counsel; thus, this issue is without merit.

¶ 6. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO LEE COUNTY.

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