text:
    Christopher Jerome MOSES v. Kindalin Kay MOSES.
    No. 2003-CA-01471-SCT.
    Supreme Court of Mississippi.
    Aug. 5, 2004.
    See also, 879 So.2d 1043.
    James Eldred Renfroe, Roy J. Perilloux, Jackson, attorneys for appellant.

      Rajita Iyer Moss, Bobby Owens, attorneys for appellee.
    Before WALLER, P.J., EASLEY and CARLSON, JJ.
   EASLEY, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. This appeal from the Hinds County Chancery Court involves a contempt action brought before Chancellor Patricia D. Wise by Kindalin Kay Moses (Kindalin) against Christopher Jerome Moses (Christopher). On June 9, 2003, Kindalin filed the contempt action against Christopher for failure to exercise his option to purchase the marital home or place the home on the market for public purchase. The trial court heard the contempt on June 23, 2003. This contempt action was brought after the trial court had rendered its judgment of divorce on March 17, 2003. The contempt action involved Christopher’s option to purchase the marital home and placing the home on the market for public purchase. The trial court found Christopher in contempt for failing to comply with the spirit of the amended final judgment of divorce by placing an advertisement in The Clarion-Ledger newspaper and not listing the house with a reputable real estate agency.

¶ 2. The trial court ordered Christopher to pay $75 per day from May 17, 2003, the date the trial court deemed that the house should have been placed on the market, being $2,700 plus an additional $550 in attorney’s fees, totaling $3,250. Christopher submitted payment of $3,250 to the chancery clerk. The notice of receipt from Kindalin’s attorney, Rajita Moss, for the $3,250, as release of Christopher’s contempt, was filed with the trial court on June 24, 2003.

¶ 3. Christopher had previously appealed the trial court’s ruling regarding the divorce and division of the marital estate. That appeal was assigned to the Mississippi Court of Appeals. At the time the trial court heard this contempt action, the Court of Appeals had not made a ruling. However, in an opinion authored by Judge Bridges, the Court of Appeals has now considered that appeal and has reversed and rendered the chancellor’s decision to grant the divorce and the division of the marital property. See Moses v. Moses, 879 So.2d 1043 (Miss. 2004) (motion for rehearing pending). Therefore, based on the Court of Appeals’ holding, the parties are still married. The Court of Appeals also found the Chancellor’s ruling regarding the marital home to be “too indefinite to be enforced.” Id. The Court of Appeals also noted “the lack of consideration of the Ferguson factors in the division of the marital assets especially the marital home.” Id.

¶ 4. Christopher now timely appeals the trial court’s incarceration order of June 23, 2003, and its judgment of contempt executed on June 25, 2003, which was filed on June 26, 2003.

FACTS

¶ 5. Christopher and Kindalin were divorced on March 17, 2003. As to the marital home, the trial court’s amended final judgment of divorce entered on March 17, 2003, provides:

Both parties agreed upon the appraisal obtained by Plaintiff Kindalin Moses. The husband is granted the first option to purchase the house and pay the wife one half of the equity in the house within sixty days of the date of this order. If the husband fails to exercise his option to purchase the house, the house will be placed on the market for public purchase. Additionally, the husband will continue to have temporary use an possession of the marital home and be responsible for the mortgage notes, the insurance and such. The Court will consider granting the husband some equitable relief for payments made after the house is placed on the market for sale,

(emphasis added).

¶ 6. The trial court did not state that the marital home had to be listed with a realtor or a reputable real estate agency. Christopher testified that he placed the house for sale in the real estate section of The Clarioiir-Ledger classifieds sometime in June of 2003. A copy of the advertisement is contained in the record. The advertisement for sale contained a description of the property, the asking price and a photograph of the home. The trial court overruled Christopher’s hearsay objection to allow Kindalin to testify that some male at The Clarion-Ledger informed her that the advisement began running on June 12, 2003.

¶ 7. On June 9, 2003, Kindalin filed her motion for contempt against Christopher requesting a judgment be entered against Christopher for failure to exercise his option to purchase the marital home and place the home on the market for public purchase. Alternatively, Kindalin requested that Christopher be required to turn over use and possession of the home to her and the trial court incarcerate him until he purged his contempt.

¶ 8. The trial court held:

The Court finds that Christopher Moses is in willful civil contempt of this Court by not placing the house on the market for sale.
* * *
By placing the ad in the newspaper in this Court’s opinion certainly did not follow the spirit of the previous order. And further the Court notes that there has not been presented any request or any petition to allow the house to be sold through a private sale or to waive the necessity of placing the house on the market through a reputable real estate agency.
This Court recognizes that this matter is on appeal, and therefore, in fairness and equity, will do what in this Court’s opinion is just and right in that consideration.

(emphasis added).

¶ 9. The trial court calculated the date that the home should have been placed on the market as May 17, 2003. In assessing Christopher’s contempt, the trial court stated:

That he shall be assessed a fine of $75 per day from the date that it should have been placed on the market to today’s date, and continuing until the house is place on the market, and that being $2,700, plus attorney’s fees of $550.
* * *
This Court would direct and order that Mr. Moses be incarcerated until he has purged himself from contempt of this Court in the like amount of $3,250.

¶ 10. Christopher paid the $3,250 to the chancery clerk. On June 24, 2003, Kinda-lin’s attorney signed for receipt of the $3,250 check. Christopher now appeals to the Court raising the following issues:

I. Whether the chancellor erred in finding Christopher in contempt of Court.
II. Whether the chancellor erred in awarding Kindalin attorney’s fees.

DISCUSSION

¶ 11. In Wing v. Wing, 549 So.2d 944, 946-47 (Miss.1989), this Court stated the standard of review for contempt proceedings:

In reviewing a judgment for contempt, this Court proceeds ab initio.
* * *
The standard of review of a chancellor’s finding of ultimate fact is limited. This Court upholds such a finding where there is substantial evidence consistent with the finding made by the Chancery Court. Wood v. Wood, 495 So.2d 503 (Miss.1986); Carr v. Carr, 480 So.2d 1120 (Miss.1985); Tucker v. Tucker, 453 So.2d 1294 (Miss.1984). Such finding will not be disturbed unless manifestly wrong. Wood, supra; Carr, supra. Our inquiry here is limited to whether or not the judgment is violated and this necessarily includes questions of whether or not it was possible to carry out the judgment of the Court. Ladner v. Ladner, 206 So.2d 620, 623 (Miss.1968).

I. Contempt

¶ 12. Christopher argues that the trial court erred in finding that he was in willful, civil contempt, and he had violated the spirit of the amended final judgment of divorce. The trial court stated that as Christopher did not list the home with a reputable real estate agency or seek to waive the necessity of listing the home with a reputable real estate agency, he was in'willful, civil contempt. As Christopher correctly contends, the trial court’s amended final judgment does not state that Christopher had to list the home with a realtor or a reputable real estate agency. Likewise, Kindalin never filed a motion to require Christopher to list the home with a realtor or real estate agency or to clarify the trial court’s judgment regarding the sale of the home. In fact, the trial court did not provide any designation as how the home had to be placed on the market.

¶ 13. While the date that the home was listed for sale in The Clarion-Ledger was disputed, Christopher did list the home for sale in The Clarion-Ledger and the home was listed for sale at the time the trial court heard the contempt. See Douglas v. Douglas, 766 So.2d 68, 72 (Miss.Ct.App.2000) (While it upheld the trial court’s finding of a lack of willful contempt because the non-compliance had been cured at the time of the hearing, the Court of Appeals stated the ruling was limited to the facts and circumstances of that case. The Court of Appeals did not want to be seen as holding that “a party can clearly disregard a valid court order until contempt proceedings are filed against the offending party and just prior to trial gain exoneration by full compliance and escape any findings of contempt and charge of appropriate attorney fees.”). Christopher contends that he satisfied the trial court’s order to place the home on the market for public purchase. Kindalin acknowledged that the advertisement ran in The Clarion-Ledger.

¶ 14. A case for contempt is based on prima facie evidence of failure to comply with a court order. Newell v. Hinton, 556 So.2d 1037, 1039 (Miss.1990); McCardle v. McCardle, 862 So.2d 1290, 1293 (Miss.Ct.App.2004). This Court has stated that even when there has been established a prima facie of contempt, the defendant may avoid a contempt judgment by providing a defense. See Newell, 556 So.2d at 1044. Besides inability to pay, the Court discussed other defenses-to finding of contempt:

There are other defenses as well. For example, the defendant may show that he was not guilty of wilful or deliberate violation of the prior judgment or a decree. Dunaway v. Busbin, 498 So.2d 1218, 1222 (Miss.1986) (emphasis added); Hooker v. Hooker, 205 So.2d 276, 278 (Miss.1967). The burden of the defendant in raising this defense, however, is not nearly as great as the defendant who claims he is without ability to pay. Consequently, it is appropriate that this defense be viewed against the extremely lenient view this Court and the courts of this state have taken of contempt proceedings in general.” Smith, 545 So.2d at 727. Furthermore, a contemnor also has available to him the traditional notion of “clean hands” as a defense. Vockroth v. Vockroth, 200 So.2d 459, 463 (Miss.1967) cited in Smith, supra. Vagueness or the lack of specificity of the decree gives the contemnor another avenue for defense as well. Id.

Newell, 556 So.2d at 1044 (emphasis added).

¶ 15. In Wing, 549 So.2d at 947, this Court held:

It is axiomatic that before a person may be held in contempt of a court judgment, the judgment must “be complete within itself — -containing no extraneous references, leaving open no matter or description or designation out of which contention may arise as to the meaning. Nor should a final decree leave open any judicial question to be determined by others, whether those others be the parties or be the officers charged with execution of the decree.... ” Morgan v. U.S. Fidelity & Guaranty Co., 191 So.2d 851, 854 (Miss.1966), quoting Griffith, supra, § 625; see also, Miss.R.Civ.P. 65(d)(2); Hall v. Wood, 443 So.2d 834, 841-42 (Miss.1983); Aldridge v. Parr, 396 So.2d 1027 (Miss.1981); Webb v. Webb, 391 So.2d 981 (Miss.1980).

(emphasis added).

¶ 16. Likewise, this Court has stated that “[a] person is entitled to be informed with a high degree of clarity as to exactly what [his] obligations are under a court order before [he] can be found in contempt for willingly disobeying that order.” Switzer v. Switzer, 460 So.2d 843, 846 (Miss.1984).

¶ 17. On reviewing the record, this Court finds the trial court’s determination of contempt to be flawed. Unquestionably, the trial court’s amended final judgment of divorce at issue is uncertain. It does not state anything about how Christopher had to place the home on the market for public purchase. Furthermore, the judgment did not prohibit use of The Clarion-Ledger or required that a realtor be hired. Additionally, the trial court also did not set any time line for the sale to be accomplished.

¶ 18. The Court of Appeals in reversing the judgment of divorce and the division of marital property also had problems with the vagueness of the trial court’s amended final judgment. The Court of Appeals found that the amended final judgment of divorce contained orders in paragraphs 6, 7 & 8 that are too indefinite to be enforced. See Moses, 879 So.2d at 1048-49.

¶ 19. The trial court in its ruling attempts to use spirit of the judgment to incorporate extraneous requirements not stated in its amended final judgment of divorce. Even the trial court cannot cite to the wording of its judgment for basing the imposed contempt.

¶ 20. We find that due to the vagueness of the amended final judgment of divorce, the trial court abused its discretion in finding Christopher in contempt. Therefore, we further find that Christopher shall receive a judgment from Kindalin in the amount of $2,700 for the contempt judgment the trial court erroneously ordered Christopher to pay to Kindalin.

II. Attorney’s Fees

¶ 21. The chancellor awarded Kin-dalin $550 in attorney’s fees for the contempt proceeding against Christopher. In order to award attorney’s fees in a contempt matter, the trial court must first consider if there was a willful violation of the court’s order. See Purvis v. Purvis, 657 So.2d 794, 796-97 (Miss.1994). As we discussed in Issue I the vagueness of the trial court’s amended final judgment prevents a finding of willful contempt by Christopher. Christopher argues that the trial court erred in awarding Kindalin $550 in attorney’s fees where there was no testimony regarding the amount of her attorney’s fees, no request for attorney’s fees in her testimony and the failure to enumerate the McKee factors found in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982).

¶ 22. It necessarily follows that the trial court erred in awarding attorney’s fees to Kindalin. Since the trial court erred in awarding attorney’s fees, we further find that Christopher shall receive a judgment from Kindalin in the amount of $550 for the attorney’s fees erroneously ordered by the trial court to be paid to Kindalin.

CONCLUSION

¶ 23. Therefore, for all the foregoing reasons, we reverse and render the judgment of contempt and the award of attorney’s fees. In order to appeal to this Court, Christopher tendered the $3,250 to the chancery clerk representing $2700 for the contempt judgment plus $550 in attorney’s fees. The chancery clerk disbursed the $3,250 to Kindalin’s attorney. Since we reverse the trial court’s finding of contempt and award of attorney’s fees to Kin-dalin, we render a judgment in favor of Christopher for $3,250 against Kindalin. Kindalin shall deposit the sum of $3,250.00 into the Registry of the Chancery Court of Hinds County, Mississippi, within 30 days of the date of this Court’s mandate, and, upon receipt of those funds, the Chancery Clerk of Hinds County shall promptly disburse those funds to Christopher.

¶ 24. REVERSED AND RENDERED. KINDALIN KAY MOSES SHALL DEPOSIT THE SUM OF $3,250.00 INTO THE REGISTRY OF THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI, WITHIN 30 DAYS OF THE DATE OF THIS COURT’S MANDATE, AND, UPON RECEIPT OF THOSE FUNDS, THE CHANCERY CLERK OF HINDS COUNTY SHALL PROMPTLY DISBURSE THOSE FUNDS TO APPELLANT, CHRISTOPHER JEROME MOSES.

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

      . $2,700 contempt charge + $550 attorneys fees < $3,250.


source: Caselaw Access Project

author: GRAVES, Justice,

license: Public Domain

text:
    Arthur M. EASLEY v. Letitia ROACH, et al.
    No. 2003-CP-01557-SCT.
    Supreme Court of Mississippi.
    Aug. 5, 2004.

      Arthur M. Easley, appellant, pro se.
    Jane L. Mapp, Jackson, James M. Norris, attorneys for appellees.
   GRAVES, Justice,

for the Court.

¶ 1. Arthur M. Easley, appeals pro se from the judgment of the Circuit Court of Sunflower County, which dismissed his case and ruled that Easley failed to timely seek judicial review of an adverse decision rendered pursuant to an administrative review procedure.

¶ 2. Easley filed a motion for an Order to Show Cause (complaint), which alleged that the procedures used by the Mississippi Department of Corrections (MDOC) to place him in solitary confinement violated his due process rights under the Fifth and Fourteenth Amendments of the United States Constitution. Easley’s complaint was dismissed as untimely by the circuit court since it was not filed by the Circuit Clerk within 30 days after receipt of the agency’s final decision. Easley appeals contending that the trial court erred in dismissing Easley’s complaint as untimely.

FACTS

¶ 3. Easley is an inmate legally incarcerated within the MDOC. On May 7, 2002, he was placed in solitary confinement for an assault of a correctional officer and alleged gang affiliations. Easley received a Third Step Response from MDOC’s Administrative Remedies Program on March 25, 2003, and pursuant to Miss.Code Ann. § 47-5-807 (Rev.2000) had thirty days to seek judicial review in the circuit court. Eas-ley’s Certificate of Service, which was attached to the Motion to Show Cause was dated April 22, 2003, within the 30-day period of the statute. An Affidavit of Poverty attached to the motion, was notarized on that same date. However, the motion was stamped filed in the Circuit Court of Sunflower County on May 5, 2003, outside the 30-day period.

ANALYSIS

WHETHER THE TRIAL COURT ERRED IN DISMISSING EASLEY’S COMPLAINT AS UNTIMELY.

¶ 4. The controlling issue is whether Easley’s complaint was untimely dismissed by the circuit court. Appellees (MDOC) rely on the Court of Appeals’ decision in Maze v. Mississippi Department of Corrections, 854 So.2d 1090 (Miss.Ct.App.2003), which extended the “prison mailbox rule” to civil filings by pro se prisoners seeking judicial review. The result being that a pro se pleading is considered “filed” when mailed by the inmate and not when it is received by the circuit clerk. The Maze court relied on this Court’s decision in Sykes v. State, 757 So.2d 997 (Miss.2000), which adopted the “mailbox rule” for purposes of finding that a pro se motion for post-conviction relief was timely “filed” when mailed by the inmate. Id. at 1000.

¶ 5. The Court of Appeals noted in Maze that the mailbox rule has only been applied in post-conviction relief cases. However, the Court of Appeals concluded that there is no reason why the rule should not apply in the context of a civil filing by a pro se prisoner seeking judicial review. The Court of Appeals offered this Court’s reasoning in Sykes to rationalize the expansion of this rule. Maze, 854 So.2d at 1092. This Court stated that “pro se prisoners would be subject to more disadvantages than are reasonably necessary in the administration of the criminal justice system” if such a rule is not applied. Sykes v. State, 757 So.2d at 1000. This Court further stated, “Unlike others, the pro se prisoner cannot personally deliver his papers to the court. He will likewise be without access to a fax machine and other means of rapid delivery to our ‘always open’ courts.” Id. We agree that the Court of Appeals correctly applied the mailbox rule adopted in Sykes.

¶ 6. Easley filed his “Motion to Show Cause” seeking judicial review within the 30 day period set forth in Miss.Code Ann. § 47-5-807. However, the motion was stamped filed outside of the 30 day period. There is nothing in the record conclusively showing on what date Easley’s motion was submitted for mailing. Furthermore, the Court in Gaston v. State, 817 So.2d 613, 615-16 (Miss.Ct.App.2002), held that neither an inmate’s certificate of service nor a notary stamp is sufficient as proof of the date mailed and that a prison mail log of legal mail is a more reliable source of the date of delivery. Therefore, because the record fails to establish when Easley’s motion was submitted for mailing, we must vacate the judgment below and remand this case to the circuit court for proceedings consistent with Sykes and Maze.

CONCLUSION

¶ 7. For these reasons, we vacate the circuit court’s judgment, and we remand this case to the circuit court for proceedings consistent with Sykes and Maze to determine whether Easley submitted his complaint for mailing within 30 days after receipt of the agency’s final decision.

¶ 8. VACATED AND REMANDED.

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


author: BRIDGES, J.,

text:
    Christopher Jerome MOSES, Appellant, v. Kindalin Kay MOSES, Appellee.
    No. 2003-CA-00673-COA.
    Court of Appeals of Mississippi.
    March 23, 2004.
    Rehearing Denied Aug. 10, 2004.

      James Eldred Renfroe, Roy J. Perilloux, Jackson, attorneys for appellant.
    Rajita Iyer Moss, Bobby Owens, Jackson, attorneys for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. The Chancery Court for the Second Judicial District of Hinds County, Mississippi granted Kindalin Kay Moses a divorce from Christopher Jerome Moses on the ground of habitual cruel and inhuman treatment. Joint custody was granted of the minor child with Kindalin having primary physical custody subject to Christopher’s visitation rights. Child support was granted with Christopher being required to pay 14% of his income for support and maintenance as provided by law. In addition, Christopher was required to maintain health insurance for the child, pay half of all costs not covered by insurance and pay half of parochial school tuition and expenses. Of the marital property Christopher was granted sole use and possession of the marital home provided that he continue paying expenses related to the home and pay Kindalin half the adjudicated equity in the home, otherwise the home would be offered for public sale. The rest of the marital property was divided according to lists provided by the parties and the division of debt was left to be considered by the attorneys.

¶ 2. Christopher filed a motion to reconsider which was denied. Now Christopher appeals on the following issues:

STATEMENT OF THE ISSUES

I. DID THE CHANCELLOR COMMIT ERROR IN FINDING SUFFICIENT EVIDENCE TO AWARD APPELLEE A DIVORCE OF AND FROM APPELLANT ON THE GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT?

II. DID THE CHANCELLOR COMMIT ERROR IN REQUIRING APPELLANT TO PAY THE MINOR CHILD’S PRIVATE SCHOOL TUITION, IN ADDITION TO HIS MONTHLY CHILD SUPPORT OBLIGATION?

III. DID THE CHANCELLOR COMMIT ERROR IN PERMITTING WITNESSES AND PHYSICAL EVIDENCE INTO THE EVIDENCE DESPITE SUCH BEING SUPPLEMENTED ONLY SHORTLY BEFORE TRIAL?

IV. DID THE CHANCELLOR COMMIT ERROR IN PERMITTING DR. LORI FULTON TO TESTIFY AS TO THE SOURCE OF APPELLEE’S DISEASES?

V. DID THE CHANCELLOR COMMIT ERROR IN REQUIRING THE DIVISION OF MARITAL HOMESTEAD WHEREIN APPELLEE OFFERED NO PROOF OF HER PORTION OF CONTRIBUTION TO THESE ASSETS AND THE CHANCELLOR FAILED TO ENUMERATE THE REQUIRED FERGUSON FACTORS?

FACTS

¶ 3. Christopher and Kindalin were married in 1994 in Hinds County. From this marriage a female one child was born in 1998. In 2001, while both were citizens and residents of Hinds County, the parties separated. Kindalin filed for temporary relief and divorce on the grounds of adultery, habitual cruel and inhuman treatment and irreconcilable differences later that same year. Later she dropped the charge of adultery. Christopher filed and later withdrew a counter claim for divorce also on the grounds of habitual cruel and inhuman treatment and irreconcilable differences.

¶ 4. Prior to the filing of her complaint for divorce a complaint was lodged with the Department of Health and Human Services that an “Uncle Johnny” was molesting the minor child. Therefore, in 2002 the trial court ordered an independent psychological evaluation of the child and appointed a guardian ad litem for her during these proceedings. Also, there was a question during the hearings as to whether Christopher was the source of Kindalin’s sexually transmitted diseases. Two hearings were conducted with a third for procedural matters but at the close of the second hearing a judgment of divorce was entered.

ANALYSIS

¶ 5. “In this and many other contexts, findings of fact made by a chancellor may not be set aside or disturbed on appeal unless manifestly wrong. This is so whether the finding relates to an eviden-tiary fact question ... or an ultimate fact question.” Tucker v. Tucker, 453 So.2d 1294, 1296 (Miss.1984). This standard of review will apply to all five issues on appeal.

I. DID THE CHANCELLOR COMMIT ERROR IN FINDING SUFFICIENT EVIDENCE TO AWARD APPELLEE A DIVORCE OF AND FROM APPELLANT ON THE GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT?

¶ 6. Chancellor Patricia Wise granted Kindalin a divorce on the grounds of habitual cruel and inhuman treatment and based her decision on two evidentiary findings. First, Christopher was found to be the source of Kindalin’s numerous sexually transmitted diseases (STDs). This finding was based on the testimony of Kindalin, her treating physician, the refusal of the court to accept Christopher’s interpretation of his medical records and Christopher’s failure to deny accusations of being a carrier of these STDs when confronted by Kindalin’s physician. The second basis for the chancellor’s decision was the undisputed testimony that Christopher taped the phone conversations of Kindalin before and after the separation of the parties.

¶ 7. In order to establish the basis for divorce on the ground of habitual cruel and inhuman treatment the claimant should produce evidence to prove conduct that: “either endanger[s] life, limb, or health, or create[s] a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or in the alternative, be so unnatural and infamous as to make the marriage revolting to the offending spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance.” S. Hand, Mississippi Divorce, Alimony and Child Custody § 4-12 (2d ed. Supp.1991); Gardner v. Gardner, 618 So.2d 108, 113-14 (Miss.1993). A causal connection between the treatment and separation must exist. Id. (citing Fournet v. Fournet, 481 So.2d 326, 328 (Miss.1985)).

¶ 8. Since this was not an uncontested divorce, according to Mississippi case law, the plaintiff must prove the ground for divorce by a preponderance of the credible evidence. Cooper v. Cooper, 518 So.2d 664, 666 (Miss.1988). Then the trier of fact will evaluate the sufficiency of the proof based on the credibility of witnesses and the weight of their testimony. Rainey v. Rainey, 205 So.2d 514, 515 (Miss.1967). Therefore, in the present case the chancellor was required to find that Kindalin met the evidentiary requirements required for divorce on the grounds of habitual cruel and inhuman treatment by a preponderance of the credible evidence.

¶ 9. “Habitual cruel and inhuman treatment is not the catch-all category to permit a divorce when a marriage is suffering difficulties, and absent an agreement by the spouses that would permit an irreconcilable differences divorce, neither party is entitled to be granted a divorce without providing the proof necessary to support the grounds that are alleged.” Crenshaw v. Crenshaw, 767 So.2d 272, 276(¶ 14) (Miss.Ct.App.2000). The evidence Kindalin presented to support the findings that Christopher recorded her phone conversations was through his admission during cross examination. He admitted that in 1995 he taped her conversations with her mother because he wanted to know if she was cheating. The Mississippi Supreme Court has found that it is not a crime for a husband to record the conversations of his spouse within the marital home. Stewart v. Stewart, 645 So.2d 1319, 1321 (Miss.1994). She also offered evidence that more recently in the marriage his suspicions led him to smash her cell phone. “It is an extreme set of facts that will prove a divorce based upon habitual cruel and inhuman treatment.” Keller v. Keller, 763 So.2d 902, 908 (¶29) (Miss.Ct.App.2000). His ability to record her conversations and destroying her cell phone do not rise to the level of extremes necessary to constitute habitual cruel and inhuman treatment. The granting of a divorce on the ground of habitual cruel and inhuman treatment on these findings did constitute manifest error on the part of the chancellor and is reversed.

¶ 10. The chancellor also based her finding of habitual cruel and inhuman treatment on the alleged transmission of numerous STDs to Kindalin by Christopher. The evidence presented by Kindalin for the transmission of numerous STDs by Christopher was through her own testimony and the testimony of her physician, Dr. Lori Fulton. Kindalin testified that she had a virginal gynecological exam by Dr. Banks the end of her junior year of college before she started dating Christopher, meaning that Kindalin had not had sex with anyone prior to that doctor’s appointment in her junior year. She offered into evidence the medical records from Dr. Banks to prove this. Her doctor’s visit was in July of 1993 and she married Christopher in November of 1994. However, they dated a year before they were married.

¶ 11. The only evidence she offered as to the source of her sexually transmitted diseases was her own testimony; the testimony of Dr. Lori Fulton was only to address treatment and diagnosis, not the source of her diseases. Christopher offered evidence that Kindalin had at least one STD, herpes, before their marriage. He also produced his medical records which indicate the only STD he had during the marriage was herpes which he claims to have contracted from Kindalin. His medical records also indicate that he made three visits to the doctor due to his wife’s having been diagnosed with an STD.

¶ 12. There was no credible evidence presented that Christopher transmitted to Kindalin any STD. Also, there was evidence . that Kindalin had herpes before their marriage, but Kindalin offered no proof that Christopher had herpes prior to the marriage. Herpes is the only STD both were proven to have. Kindalin married Christopher after she claims he infected her with that condition. Therefore, since she knowingly married him believing he infected her with herpes she cannot later claim that such infection is grounds for habitual cruel and inhuman treatment.

¶ 13. The ruling of the Chancery Court of the Second Judicial District of Hinds County is reversed and rendered.

II. DID THE CHANCELLOR COMMIT ERROR IN REQUIRING APPELLANT TO PAY THE MINOR CHILD’S PRIVATE SCHOOL TUITION, IN ADDITION TO HIS MONTHLY CHILD SUPPORT OBLIGATION?

¶ 14. Due to the Court’s decision above, this issue is moot. However, the Court will address one aspect of this issue. The chancellor required Christopher to pay in child support 14% of his adjusted gross income and half of the child’s parochial school tuition. Pre-col-lege tuition is considered part of child support, not an extraordinary expense. Southerland v. Southerland, 816 So.2d 1004, 1006(¶ 11) (Miss.2002). Requiring Christopher to pay half of the tuition over and above the statutory 14% without a written or specific finding by the chancellor as to why the deviation is needed renders the award inappropriate. Miss.Code Ann. § 43-19-101(2) (Rev.2000). Such awards should be consistent with the provisions laid out in Mississippi Code Annotated section 43-19-103.

¶ 15. The chancellor’s only basis for requiring Christopher to pay half the tuition was that Christopher was Catholic and that the couple had already placed their daughter in Catholic school. “While a father’s agreement prior to divorce to send a child to private school may be one legitimate factor to be considered, it is by itself an inadequate basis for an award of support in excess of that allowed by the statutory guidelines.” Southerland, 816 So.2d at 1007(¶ 13). Thus, Christopher’s agreement with Kindalin about sending their daughter to Catholic school prior to the divorce cannot be the sole basis for the chancellor’s decision.

III. DID THE CHANCELLOR COMMIT ERROR IN PERMITTING WITNESSES AND PHYSICAL EVIDENCE INTO THE EVIDENCE DESPITE SUCH BEING SUPPLEMENTED ONLY SHORTLY BEFORE TRIAL?

IV. DID THE CHANCELLOR COMMIT ERROR IN PERMITTING DR. LORI FULTON TO TESTIFY AS TO THE SOURCE OF APPELLEE’S DISEASES?

¶ 16. Due to the Court’s decision above, these issues are moot.

V. DID THE CHANCELLOR COMMIT ERROR IN REQUIRING THE DIVISION OP MARITAL HOMESTEAD WHEREIN APPELLEE OFFERED NO PROOF OF HER PORTION OF CONTRIBUTION TO THESE ASSETS AND THE CHANCELLOR FAILED TO ENUMERATE THE REQUIRED FERGUSON FACTORS?

¶ 17. Due to the Court’s decision above, this issue is also moot. However, the Court will address two aspects of the issues. In the chancellor’s amended final judgment of divorce, the orders given in paragraphs six, seven and eight are too indefinite to be enforced.

¶ 18. Paragraph six concerns the purchase of the home and the division of the equity but it does not give a specific adjudicated value of the home and equity and it does not give specific time parameters for Christopher’s option to purchase and the conditions of the public sale if one is necessary. Paragraph seven lists the identifiable assets the couple possess in the home. Initially, this paragraph contained no actual order of division; however, in the amended judgment this paragraph is more specific but should preferably include a catch-all provision for omitted assets. Finally, in paragraph eight the chancellor instructs “the attorneys to look at any indebtedness to determine the amount owed.” Again, this order is too indefinite to be enforced.

¶ 19. Lastly, this Court notes the lack of consideration of the Ferguson factors in the division of the marital assets especially the marital home. Upon review, this Court could find no reason as to why Kin-dalin was entitled to half of the equity in the home and found no reason for awarding possession of the home to Christopher other than the fact that his father helped him build it. This chancellor casually mentioned the Ferguson factors at the very close of her ruling. She stated, “I need to say for the record that in dividing and considering the division of property, the Court considered the factors in Ferguson v. Ferguson, so that we can have that on the record.” This capricious mention of the case merely to have it on the record was not the intent of the Mississippi Supreme Court. Rather, chancellors should consider the eight factors laid out in Ferguson throughout the entire process of dividing the marital assets.

¶ 20. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS REVERSED AND RENDERED. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: CHANDLER, J.,

text:
    Chantantie MILLER, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CP-02066-COA.
    Court of Appeals of Mississippi.
    June 8, 2004.
    Rehearing Denied Aug. 10, 2004.
    Chantantie Miller, appellant, pro se.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Chantantie Miller was indicted for aggravated assault on April 22, 1993. Miller pled guilty and was sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections, with twenty years suspended and five years’ probation. She later was indicted on five counts of uttering a forgery. On September 30, 1996, the circuit court revoked Miller’s probation and ordered that she serve her previous aggravated assault sentence of twenty years. Miller filed a motion for post-conviction relief to set aside and vacate her alleged illegal sentence on October 28, 2002. The circuit court denied the petition without an evi-dentiary hearing. Feeling aggrieved, Miller appeals and cites the following errors:

1. WHETHER MILLER’S GUILTY PLEA WAS INVOLUNTARY BECAUSE IT WAS MOTIVATED BY AN ILLEGAL AND EXCESSIVE SENTENCE.

2. WHETHER MILLER’S SENTENCE WAS EXCESSIVE BECAUSE IT EXCEEDED THE TERM OF YEARS ALLOWED FOR THE ALLEGED CRIME.

3. WHETHER THE TRIAL COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING.

¶2. This Court will address Miller’s three issues together because each is premised on Goss v. State, 721 So.2d 144, 147 (¶ 17) (Miss.1998), which, she claims, renders her sentence excessive. Finding no merit, we affirm the ruling of the trial court.

1. WHETHER THE TRIAL COURT ERRED IN DENYING MILLER’S MOTION FOR POST CONVICTION RELIEF

¶ 3. In reviewing a trial court’s denial of post-conviction relief, this Court 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).

¶ 4. Miller’s claim of an illegal sentence is not subject to the time bar of three years set forth in Mississippi Code Annotated Section 99-38-5(2) (Supp.2003) because errors affecting a fundamental constitutional right are excepted from the time bar. Ivy v. State, 731 So.2d 601, 602(¶ 4) (Miss.1999). Although Miller was sentenced over eight years ago and her probation revoked six years ago, we therefore will address the merits of her claim.

¶ 5. Miller argues that her plea bargain and twenty-year sentence for aggravated assault is in conflict with the Mississippi Supreme Court’s holding in Goss v. State, 721 So.2d 144, 147 (¶ 17) (Miss.1998). Goss was a prior convicted felon who entered a guilty plea to burglary and was sentenced to serve ten years, with three years suspended and a five-year probation period. Id. at (¶ 3). As a repeat offender, Goss was not eligible for probation. Id. at (¶ 2). At the time Goss was sentenced, the statutory maximum for burglary of a dwelling was ten years. Id. at (¶ 4).

¶ 6. In 1997, Goss filed a motion for post-conviction relief, which was denied by the circuit court. Id. Goss appealed and argued that his combined sentence and probation exceeded the statutory maximum allowed by the law. Id. at (¶ 5). The Mississippi Supreme Court found that Goss’ sentence “in its totality violates the limits imposed by the statutes and offends the intent of the legislature in restricting the duration of punishment imposed by the courts.” Id. at (¶ 6). The court then concluded that, “[t]he sentence imposed by the trial court was erroneous due to the possibility that Goss would serve more than ten years for the crime of burglary of a dwelling as prescribed by Miss. Code Ann. § 97-17-27.” Id. at 147(¶ 17).

¶ 7. However, Goss was overruled in Carter v. State, 754 So.2d 1207, 1209-10 (¶¶ 9,10) (Miss.2000), where the Mississippi Supreme Court held that a period of probation is not considered when calculating whether the sentence exceeds the statutory maximum. In Carter, the court noted the distinction between post-release supervision and probation, the latter not being part of the actual prison sentence. Carter, 754 So.2d at (¶ 5)(citing Moore v. State, 585 So.2d 738, 741 (Miss.1991)). The court recognized that Mississippi Code Annotated Section 47-7-37 (Rev.2000) provides that no part of the time served on probation shall be considered part of the actual time the defendant is sentenced to serve. Id. at (¶ 7).

¶ 8. Miller argues that the holding in Carter is not applicable to her case because it was rendered under an interpretation of Mississippi Code Annotated Section 47-7-34 (Rev.2000) and § 47-7-37. She asserts that because her case was interpreted under Mississippi Code Annotated Section 47-7-33 (Rev.2000), Carter is inapplicable and its application would constitute an ex post facto law violation.

¶ 9. The Mississippi Supreme Court in Carter specifically held that “probation under § 47-7-33 is a conditional term that is not a part of the prison sentence and is therefore not subject to the “totality” of sentence concept found in § 47-7-34.” Carter, 754 So.2d at 1209(¶ 5). Miller’s five year probation period would not be added to her original twenty year sentence for aggravated assault when calculating time to be served. Reinstating the full original sentence therefore would not violate the statutory maximum for her crime as set forth in Mississippi Code Annotated Section 97-3-7 (Rev.2000).

¶ 10. Miller was a first time offender who was convicted of aggravated assault and sentenced to serve twenty years, with twenty years suspended and five years’ probation. The sentence was proper under § 97-3-7, which authorizes a sentence of up to twenty years for aggravated assault. Because Miller was a first time offender, § 47-7-37 allowed the circuit court the discretion to suspend her sentence and implement probation. Miller pled guilty to aggravated assault, pursuant to § 97-3-7, on February 4, 1994. At the time Miller was sentenced, § 97-3-7 was construed consistent with the court’s holding in Carter. Accordingly, Miller’s ex post facto assertion is without merit.

¶ 11. Miller also alleges that she should have been afforded an evidentiary hearing before the circuit judge. She argues that her guilty plea was involuntary because “she should have been advised that if her probation was violated no credit for any time served under probation would be allowed as credit on the actual time to be served.” A trial court has considerable discretion in determining whether to grant an evidentiary hearing. Meeks v. State, 781 So.2d 109, 114 (¶ 14) (Miss.2001). Not every motion for post-conviction relief filed in the trial court must be afforded a full adversarial hearing. Jones v. State, 795 So.2d 589, 590(¶ 3) (Miss.Ct.App.2001). A trial judge may disregard the assertions made by a post-conviction movant where, as here, they are substantially contradicted by the record of the proceedings leading to the judgment of guilty. White v. State, 818 So.2d 369, 371(¶ 4) (Miss.Ct.App.2002).

¶ 12. Miller’s involuntary plea argument cannot be advanced in this post-conviction relief petition because it is time barred and does not fall within one of the exceptions set forth in § 99-39-5(2). Notwithstanding the time bar, her argument also fails because probation is a conditional term that is not a part of a prison sentence. Miller could not have been advised by the trial court or her lawyer that she would receive credit for time served on a prison sentence while on probation. This Court finds that the circuit court properly denied Miller’s motion for post-conviction relief.

¶ 13. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS ARE ASSESSED TO LAUDERDALE COUNTY.

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


author: MYERS, J.,

text:
    Harry W. VINSON and Brad Vinson, Appellants v. Lenore PRATHER, Appellee.
    No. 2003-CP-01648-COA.
    Court of Appeals of Mississippi.
    June 15, 2004.
    Rehearing Denied Aug. 10, 2004.

      Harry W. Vinson (pro se), Brad Vinson (pro se).
    Roger Googe, attorney for appellee.
   MYERS, J.,

for the Court.

¶ 1. Harry W. Vinson and Brad Vinson, in propria persona, brought suit in the Circuit Court of Union County, Mississippi, against Mississippi Supreme Court Chief Justice Lenore Prather. The Vin-sons argued that Chief Justice Prather violated their due process rights by appointing a special chancellor to hear outstanding matters regarding two underlying cases that had been recently appealed to the Mississippi Supreme Court. The trial court dismissed the Vinsons’ complaint with prejudice. The Vinsons now appeal and request our review of the following issue:

I. WHETHER THE TRIAL COURT ERRED BY DISMISSING THE APPELLANTS’ COMPLAINT PURSUANT TO MISSISSIPPI RULE OF CIVIL PROCEDURE 12(b)(6)

STATEMENT OF FACTS

¶2. The Vinsons were involved in two underlying cases in the Chancery Court of Lee County. Rulings were made in both of these cases which were adverse to the Vinsons. As a result, the Vinsons filed notices of appeal to the Mississippi Supreme Court.

¶ 3. A petition was filed by the Lee County Chancery Clerk requesting that the Vinsons be required to increase the appeal deposits in both cases pursuant to Mississippi Rule of Appellate Procedure 11(b)(2). The petition to increase was presented to Chancellor Dorothy Colom. Chancellor Colom had previously been appointed by the supreme court as a special chancellor in Lee County and had entered a ruling adverse to the Vinsons on one of the underlying cases being appealed. Specifically, Chancellor Colom issued injunctions against the Vinsons and appointed a conservator to the case. Upon receipt of the petition, Chancellor Colom wrote a letter to Chief Justice Prather requesting direction on whether Chancellor Colom could continue to proceed as a special chancellor on any outstanding matters.

¶ 4. The Supreme Court of Mississippi considered the matter and found that it would be in the best interest of all parties and in the efficient administration of justice that Chancellor Colom be appointed to preside and conduct proceedings filed through May 23, 2000. As a result, an order was entered pursuant to Mississippi Code Annotated Section 9-1-105(1) (Rev. 2002).

¶ 5. The Vinsons brought suit in the Circuit Court of Union County claiming that Chief Justice Prather, in her individual capacity, violated their due process rights by unlawfully appointing Chancellor Colom “to go outside her jurisdiction to hear matters in Lee County Chancery Court Cause 96-0078 and 96-1110 which had been appealed to the Mississippi Supreme Court.” The Attorney General’s Office, on behalf of Chief Justice Prather, filed a motion to dismiss or, in the alternative, for summary judgment. Attached to this motion was the Lee County Chancery Clerk’s petition, Chancellor Colom’s letter to Chief Justice Prather, and the supreme court’s order. The Attorney General’s Office also filed a motion to hold all discovery in abeyance pending resolution of its dis-positive motion. A hearing was held and the Honorable William Lamb entered an order dismissing the Vinsons’ complaint for failing to state a claim upon which relief can be granted. Aggrieved by this decision, the Vinsons perfected a timely appeal. Finding no error, however, we affirm the judgment of the Circuit Court of Union County.

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED BY DISMISSING THE APPELLANTS’ COMPLAINT PURSUANT TO MISSISSIPPI RULE OF CIVIL PROCEDURE 12(b)(6)

¶ 6. “A motion to dismiss for failure to state a claim upon which relief can be granted challenges the legal sufficiency of the complaint, and raises a question of law.” Favre Prop. Mgmt. v. Cinque Bambini, 863 So.2d 1037, 1042 (¶ 14) (Miss.Ct.App.2004). As a result, this Court reviews a 12(b)(6) dismissal de novo. Id. The allegations in the complaint must be taken as true and the motion should not be granted unless it appears to a certainty that the plaintiffs will be unable to prove any set of facts in support of the claim. Id.

¶ 7. The Vinsons allege that the trial court, by considering the three exhibits attached to Chief Justice Prather’s motion to dismiss, looked outside the pleadings. The Vinsons further allege that the trial court treated the motion to dismiss as a motion for summary judgment without allowing the development of proof through discovery as Mississippi Rule of Civil Procedure 56 requires. The Vinsons argue that discovery was necessary in order to determine whether Chief Justice Prather was acting in her individual capacity.

¶ 8. “Whether a Rule 12 motion ought to be converted into a motion for summary judgment is a function of whether the Circuit Court finds it necessary to resort to matters outside the pleadings in order to dispose of the motion.” Walton v. Bourgeois, 512 So.2d 698, 700 (Miss.1987). “Under Rule 12(b), even if matters outside the pleadings are introduced, the trial court may exclude those matters and review the motion pursuant to Rule 12(b)(6).” Favre Prop. Mgmt., 863 So.2d at 1043 (¶ 16).

¶ 9. In the instant case, the trial court never expressly excluded the three exhibits. However, we are mindful of the fact that Chief Justice Prather moved for dismissal pursuant to 12(b)(6) and for summary judgment in the alternative. More importantly, there is no evidence that the circuit court considered anything outside the pleadings. This is especially true when no discovery has been propounded to date. During the hearing on the motion, the trial judge stated:

Mr. Vinson, I’m leaning very heavily towards dismissing this as failure to state a cause of action more than anything else because the damages you have alleged in your complaint seem apparently to me to be based on actions and orders of others than Chief Justice Prather ... (sic) I can see no cause of action for the simple appointment of a judge and no further alleged action on the part of the defendant other than the appointment might be illegal. I mean I cannot find any proximate cause between the act of Judge Prather in appointing Judge Colom to the trouble you complain of in your complaint in this case.

¶ 10. There was no allegation that Mississippi Code Annotated Section 9-1-105 is unconstitutional. There was no reference to the exhibits made by the trial judge. In fact, the trial court’s opinion analyzed the Vinsons’ claim according to what was or was not pleaded in the complaint. See Arnona v. Smith, 749 So.2d 63, 65—66(¶ 7) (Miss.1999).

¶ 11. In addition, where a plaintiff has actual notice of all of the information in the movant’s papers and has relied upon these documents in framing the complaint, the necessity of translating a motion to dismiss into a motion for summary judgment is largely dissipated. Sennett v. U.S. Fidelity and Guar. Co., 757 So.2d 206, 209 (¶ 10) (Miss.2000). Under these circumstances, the court may consider information in addition to the pleadings without converting the dismissal motion into one for summary judgment. Id. at 210 (¶ 11). As a result, even if we assume arguendo that the trial judge reviewed the exhibits in arriving at his decision, we find no error.

¶ 12. We now turn to the merits of the case. The Vinsons argue that Chief Justice Prather’s unlawful appointment of Chancellor Colom resulted in monetary loss and in Harry Vinson’s arrest. The trial court held:

there [was] absolutely no nexus between any action taken by Justice Prather with regard to the arrest or detainment of [Harry] Vinson, nor was there any unlawful or illegal denial of right to ownership of any property as the Mississippi Supreme Court affirmed the actions of the lower court in one instance, and dismissed the Vinson’s [sic] appeal in the other action.

The trial judge also held that Chief Justice Prather could not be exposed to civil liability in this instance based on judicial immunity. After a careful review of the record, we agree.

¶ 13. The Vinsons argue that the trial court lost jurisdiction once they appealed the case to the supreme court. However, the language of the applicable rule states:

Application to Increase Deposit. If dis-. satisfied with the amount tendered, either the clerk of the trial court or the court reporter may apply for an increase to the trial court which, after reasonable advance notice and opportunity to be heard having been afforded all parties, and for good cause shown, may order the amount of the deposit increased.

M.R.A.P. 11(b)(2) (emphasis added).

¶ 14. This rule indicates that the Lee County Chancery Clerk has the authority to request an increase in the appeal deposit. More importantly, this rule also indicates that the trial court has the authority to decide if that request shall be granted. Likewise, the applicable statute requires that the appellant prepay all costs in preparation of the appellate record to the trial court. See Miss.Code Ann. § 11-51-29 (Rev.2002). As a result, the Lee County Chancery Court did not exceed its jurisdiction in reviewing and granting the petition to increase the appeal deposit.

¶ 15. In addition, Chief Justice Prather had the authority to appoint Special Chancellor Colom. Article 6 Section 165 of our constitution allows the governor to appoint a special chancellor if the original one is unable to preside but it is not “the exclusive mechanism for the selection of special judges.” McDonald v. McDonald, 850 So.2d 1182, 1187 (¶ 13) (Miss.Ct.App.2002). Mississippi Code Annotated Section 9-1-105 gives the Chief Justice of the supreme court, with the advice and consent of a majority of the justices, the express authority to appoint a person to serve as a special judge in the chancery court. That same statute states that a special chancellor will “enjoy the full power and authority of the office to which [she] is appointed.” Miss.Code Ann. § 9-1-105(9) (Rev.2002).

¶ 16. The Vinsons finally argue that Chief Justice Prather is not entitled to judicial immunity because she was sued in her individual capacity and because she performed a non-adjudicative act. We disagree and hold that Chief Justice Prather enjoyed the protection of judicial immunity because “judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and alleged to have been done maliciously or corruptly.” Loyacono v. Ellis, 571 So.2d 237, 238 (Miss.1990). “Public policy mandates that a judge should have the power to make decisions without having to worry about being held liable for [her] actions.” Id. The best interests of the people and public order require that judges be immune from civil liability. Id. If someone believes a judge has acted either contrary to or in excess of her authority, the primary remedy is to file a complaint with the Mississippi Commission on Judicial Performance. Miss. Com’n of Jud. Perform. v. Russell, 691 So.2d 929, 947 (Miss.1997).

¶ 17. We find it impossible for Chief Justice Prather to be sued in her individual capacity because she had absolutely no authority to act as she did in appointing a special chancellor other than by virtue of her position as chief justice of the Mississippi Supreme Court. In other words, Mississippi Code Annotated Section 9-1-105 is an exclusive tool of the chief justice. A majority of justices voted to grant the appointment. In addition, there is no dispute that Justice Prather was chief justice when the acts complained of occurred. Even if we look to the act itself, we find no error because we consider an appointment pursuant to Mississippi Code Annotated Section 9-1-105 a judicial act. The Vin-sons’ attempt to label the appointment as administrative or non-adjudicative is without merit.

¶ 18. Accepting all allegations in the complaint as true, we are certain that the Vinsons are unable to prove any set of facts in support of their claim. As a result, we affirm the trial court’s dismissal with prejudice.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF UNION COUNTY IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANTS.

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


text:
    Glyn JOHNSON d/b/a Zoo City Skydivers, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KM-01761-COA.
    Court of Appeals of Mississippi.
    June 15, 2004.
    Rehearing Denied Aug. 10, 2004.

      Glyn Johnson, appellant, pro se.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   MYERS, J.,

for the Court.

¶ 1. Glyn Johnson appeals the decision of the Circuit Court of Yazoo County affirming his conviction in the County Court of Yazoo County of indecent exposure, reckless driving, and malicious mischief. Because Johnson has not complied with the requirements of Mississippi Code Annotated Section 11-51-81 (Rev.2002) for the perfection of an appeal to this Court, we dismiss his appeal.

STATEMENT OF FACTS

¶ 2. This appeal emanates from an altercation at the Yazoo County Airport. A couple of weeks before the incident in question, Johnson met with Gerald Frasier, the Yazoo County Airport director. At that meeting, Johnson asked Frasier if he could operate his para motor. Frasier informed Johnson that he was banned from parachuting at the airport. However, Frasier told Johnson that he would seek a written ruling from the Federal Aviation Administration as to whether Johnson would be allowed to operate his device.

¶ 3. Johnson did not wait for Frasier’s decision and on August 21, 2001, he attempted to operate his para motor at the airport. Les Clanton, the airport manager, notified Frasier of Johnson’s activities. The two men confronted Johnson and notified him that he did not have permission to use the county’s electricity or operate his device. Johnson became argumentative and began to curse at the men. The two men told Johnson that they did not come there to argue. As the two men were driving away, Johnson made a gesture with his finger, dropped his pants and mooned them.

¶ 4. Johnson then got in his vehicle and attempted to hit Frasier’s vehicle head on, but Frasier slammed on his brakes. Johnson exited his vehicle, and Frasier tried to drive around on the right shoulder of the road. As Frasier passed Johnson, Johnson grabbed the vehicle’s mirror and slammed it up against the window. Johnson was arrested that same day.

¶ 5. Johnson was convicted in the Justice Court of Yazoo County of indecent exposure, reckless driving, and malicious mischief. He appealed his conviction to the County Court of Yazoo County, and after a trial de novo, he was again convicted of all three crimes. The county court sentenced him to a suspended term of thirty days, ordered him to pay $100 in fines, ordered him to pay $202 in restitution, and ordered him to pay all court assessments. Johnson then appealed to the Circuit Court of Ya-zoo County, which affirmed his convictions and sentences. He filed a notice of appeal with the supreme court, which assigned the case to this Court. In his sole issue on appeal, Johnson argues that the justice court’s charging affidavits were facially insufficient. Johnson argues that he received inadequate notice of the nature and cause of the accusations against him in violation of Article 3, Section 26 of the Mississippi Constitution.

LEGAL ANALYSIS

¶ 6. Despite the fact that neither party raised the issue of this Court’s jurisdiction, it may not be conferred by agreement of the parties. Davis v. City of Biloxi, 797 So.2d 1036, 1036(¶ 2) (Miss.Ct.App.2001). “This Court must remain mindful of questions relating to jurisdiction and should, if appropriate, raise such issues on its own motion.” King v. City of Richland, 856 So.2d 667, 668(¶2) (Miss.Ct.App.2003). “The right of appeal does not exist unless expressly given by statute and is not to be extended to cases not within the statute.” Sumrall v. City of Jackson, 576 So.2d 1259, 1261 (Miss.1991). Section 11-51-81 of the Mississippi Code Annotated governs a defendant’s right of appeal from a proceeding originating in justice court and provides that:

there shall be no appeal from the circuit court to the supreme court of any case civil or criminal which originated in a justice of the peace, municipal or police court and was thence appealed to the county court and thence to the circuit court unless in the determination of the case a constitutional question be necessarily involved and then only upon the allowance of the appeal by the circuit judge or by a judge of the supreme court.

Miss.Code Ann. § 11-51-81 (Rev.2002).

¶ 7. “The presence of a constitutional question and the granting of an appeal by either the circuit judge or a judge of the Supreme Court are both necessary ingredients for a viable appeal to the Supreme Court.” Davidson v. State, 592 So.2d 1006, 1007 (Miss.1992) (citing Sumrall, 576 So.2d at 1261).

¶ 8. The case sub judice originated in justice court, was tried de novo in county court, and was appealed to the circuit court. Procedurally, Johnson’s appeal to this Court is defective because it was not accompanied by the necessary formal allowance of either the circuit judge or a supreme court justice. See Davis, 797 So.2d at (¶ 4). The second requirement of Section 11-51-81 has not been met. As a result, this appeal is dismissed.

¶ 9. Even if we assume, arguen-do, that jurisdiction was proper, we would nevertheless affirm the decision of the circuit court. The Sixth Amendment of the United States Constitution entitles an accused person to be informed of the nature and cause of the accusations against him. Starns v. State, 867 So.2d 227, 232 (¶ 18) (Miss.2003). This same notion is embodied in Article 3, Section 26 of the Mississippi Constitution. Id. Since the charges in this case originated in justice court, Johnson received notice of the charges against him via an affidavit, which serves the same notice requirements as an indictment in circuit court. See Griffith v. City of Bay St. Louis, 797 So.2d 1037 (Miss.Ct.App.2001). Like an indictment, the purpose of an affidavit is to advise the accused of the charges in order for him to prepare a defense. Williams v. State, 445 So.2d 798, 804 (Miss.1984).

¶ 10. However, formal or technical words are not required if the offense can be substantially described without them. Smallwood v. State, 584 So.2d 733, 738 (Miss.1991). In addition, there is no requirement that the actual statute be cited. King v. State, 580 So.2d 1182, 1185 (Miss.1991). Finally, a statement of the applicable statutory language is generally sufficient to inform the accused of the charges against him. Id.

¶ 11. After a careful review, we find no merit to Johnson’s argument. The indecent exposure affidavit states that on or about August 15, 2001, Johnson “did then and there wilfully and unlawfully and lewdly expose his private parts to be exposed (sic) to Gerald P. Frasier” at the Yazoo County airport against the peace and dignity of the State of Mississippi.

¶ 12. The crime of indecent exposure is defined as “[a] person who wilfully and lewdly exposes his person, or private parts thereof, in any public place, or in any place where others are present, or procures another to so expose himself....” Miss.Code Ann. § 97-29-31 (Rev.2000). The justice court affidavit quotes the language of the statute.

¶ 13. In addition, we disagree with the fact that Johnson was somehow disadvantaged in presenting his defense of indecent exposure because multiple statutory sections were applicable to his conduct at the airport. Johnson cites four other statutory sections that could be applicable to his actions. However, none of these statutes have language similar to the language included in Johnson’s affidavit. In fact, only one of the four statutes even mentions the words “indecent exposure.” We find it difficult to understand how Johnson could seriously argue that he did not know what act he was being charged with unless he exposed himself more than once that day. As a result, we hold that the affidavit charging Johnson with indecent exposure was sufficient.

¶ 14. We extend our holding to Johnson’s other two affidavits as well. The reckless driving affidavit states that, on or about August 15, 2001, Johnson:

did then and there wilfully and unlawfully drive a motor vehicle in such a manner as to indicate a wanton disregard for the safety of persons or property on or about Carter Road-Yazoo County Air Port by trying to run Gerald P. Frasier off the road against the peace and dignity of the state of Mississippi.

¶ 15. “Any person who drives any vehicle in such a manner as to indicate either a wilful or a wanton disregard for the safety of persons or property is guilty of reckless driving.” Miss.Code Ann. § 63-3-1201 (Rev.1996). Again, the affidavit literally quotes the language of the statute.

¶ 16. Finally, the malicious mischief affidavit stated that, on or about August 15, 2001, Johnson “did then and there wilfully and unlawfully and maliciously dis-troy [sic] the sideview [sic] mirror of Gerald P. Frasier [sic] 1999 Chevrolet Blazer ... against the peace and dignity of the state of Mississippi.” The relevant statute states that “[e]very person who shall maliciously or mischievously destroy, disfigure, or injure, or cause to be destroyed, disfigured, or injured, any property of another, either real or personal, shall be guilty of malicious mischief.” Miss.Code Ann. § 97-17-67(1) (Supp.2003).

¶ 17. All three affidavits quote the relevant language of the applicable statutes. In addition, as noted above, there is no requirement that the formal name or statutory section be listed. Smallwood, 584 So.2d at 738; King, 580 So.2d at 1185. As a result, we find all three of the affidavits in this case to be facially sufficient.

¶ 18. THIS APPEAL IS HEREBY DISMISSED FOR LACK OF JURISDICTION. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Johnson testified that a para motor is a type of ultra light aircraft. Frazier referred to the device as an electric parachute in his testimony-


author: LEE, J.,

text:
    John D. RATLIFF a/k/a “Black”, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-01799-COA.
    Court of Appeals of Mississippi.
    Aug. 3, 2004.

      Allan D. Shackelford, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before KING, C.J., LEE and GRIFFIS, JJ.
   LEE, J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On December 9, 2002, Debra Durham was working at the Tobacco Superstore in Clarksdale, Mississippi. Around five o’clock p.m., she was restocking cigarettes in the back area of the store. Another employee named Sylvia Wood joined Debra in the back of the store and asked her if a man had paid her for three cartons of Newport cigarettes. Durham responded that she had not participated in the transaction. Pamela Farmer, the store manager, who was not present in the store at the time of the alleged shoplifting, was notified. Farmer reviewed the store’s surveillance tape, which records activities at the register, in the back office, and in the store. The tape had recorded a black man in a checkered coat as he grabbed three cartons of Newport cigarettes. The man proceeded towards the counter and bypassed the clerk, who was assisting another customer. The man jogged out of the store, holding the three cartons in his arm.

¶ 2. On December 18, John D. “Black” Ratliff went to the Tobacco Superstore. Farmer identified Ratliff as the man from the tape because he was wearing the same pants, jacket, hat and shoes as the man on the videotape. Additionally, Ratliff, like the man in the videotape, had gray hair “all the way down his face under his chin.” Farmer asked Ratliff to leave the store because he had been caught shoplifting. Ratliff exited the store, and Farmer called the police. Shortly thereafter, Ratliff was arrested for shoplifting. On July 17, 2003, Ratliff was found guilty of felony shoplifting pursuant to Mississippi Code Annotated Section 97-23-93 (Supp.2003), because he had two prior shoplifting convictions. Ratliff was sentenced by the trial court to serve five years as a habitual offender in the custody of the Mississippi Department of Corrections. It is from this conviction that Ratliff now appeals, raising the following three assignments of error:

I. THE TRIAL COURT COMMITTED ERROR IN ALLOWING COMMENTARY BY A WITNESS CONCERNING A VIDEOTAPE OF THE SHOPLIFTING
II. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A VERDICT OF GUILTY
III. THE JURY VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 3. Finding these assignments of error to lack merit, this Court affirms the verdict of the trial court.

DISCUSSION OF ISSUES

I. DID THE TRIAL COURT ERR IN ALLOWING CERTAIN TESTIMONY CONCERNING A VIDEOTAPE OF THE SHOPLIFTING?

¶ 4. Ratliff presents two arguments regarding the surveillance tape. First, the trial court erred in allowing Farmer, the store manager, to identify Ratliff as the man in the videotape and second, the trial court erred in allowing Farmer and Durham to testify as to what the man in the videotape was doing.

1. Did the trial court err in allowing Farmer to identify Ratliff as the man in the surveillance tape ?

¶ 5. Any opinion offered by Farmer, as a lay witness, must necessarily meet the requirements of Mississippi Rule of Evidence 701. Rule 701 permits the introduction of non-expert opinion evidence if “(a) [the opinion is] rationally based on the perception of the witness and (b) [is] helpful to the clear understanding of ... the determination of a fact in issue.” M.R.E. 701. The Mississippi case which deals with the admission of lay witness opinions concerning the identity of a person in a videotape is Bennett v. State, 757 So.2d 1074 (Miss.Ct.App.2000). Bennett dealt with a mother’s testimony that her son was not the individual portrayed in a videotape of a drug transaction. Citing U.S. v. Jackman, 48 F.3d 1, 4-5 (1st Cir.1995), this Court determined that such opinion evidence could be helpful to the trier of fact.

However, in a well-reasoned opinion, the United States Court of Appeals for the First Circuit concluded that such evidence ought to be admitted in any circumstance where it can be demonstrated that the witness has a greater familiarity with the defendant’s appearance than the jury could possess and the recorded likeness is not either (a) so unmistakably clear, or (b) so hopelessly obscured, that the witness is no better suited than the jury to draw a meaningful conclusion as to the identity of the person depicted.

Bennett, 757 So.2d at 1076(¶ 7).

¶ 6. This Court reasoned that because the mother was familiar with her son’s appearance and there was a legitimate issue of identification “[t]hat is the very circumstance in which opinion evidence may properly be received from witnesses who, by their previous acquaintance with the appellant, have some greater ability to identify him in a photograph or videotape than would a typical juror having no previous involvement with the appellant.” Id. at 1077(¶ 8).

¶ 7. This case is clearly differentiated from the facts in Bennett; however, the logic espoused therein still applies' — that Farmer’s face-to-face confrontation with Ratliff could render greater familiarity with Ratliff than the jury possesses. Farmer testified that Ratliff wore the same coat, shoes, pants and hat as the man in the videotape. Farmer also testified that she also recognized his facial features, including gray hair “all the way down his face under his chin.” Having reviewed the videotape of the shoplifting, this Court is of the opinion that the video is neither unmistakably clear or hopelessly obscured, and due to Farmer’s personal observation of and confrontation with Ratliff, she clearly possessed a greater familiarity with Ratliff than the jury. Accordingly, under Mississippi Rule of Evidence 701 and Bennett, the trial court did not err in admitting Farmer’s opinion testimony that Ratliff was, indeed, the man in the video.

2. Did the trial cowrt err in allowing Farmer and Durham to opine as to what the suspect in the videotape was doing ?

¶ 8. Both the State and Ratliff cite Wells v. State, 604 So.2d 271 (Miss.1992), in support of their arguments regarding both Farmer’s and Durham’s opinions of what was being viewed in the videotape. In Wells, an employee was tried for embezzlement. The employee’s actions were recorded on a surveillance tape, and at trial the store owner testified to Wells’ actions as the tape played for the jury. The issue was not the witness’ testimony, per se, but the witness’ commentary on how the actions in the videotape did not comport with store policy. The Mississippi Supreme Court found this to be error because the opinion testimony was not based upon the store owner’s first-hand knowledge as required by Mississippi Rule of Evidence 701 due to the fact that the store owner had not personally witnessed Wells’ actions on the date in question. Like the witness in Wells, neither Farmer nor Durham possessed first-hand knowledge of Ratliffs actions on December 9. However, the court in Wells isolated the impermissible testimony and concluded “that considering the totality of the evidence presented in this case, the error was, at best, harmless.” Wells, 604 So.2d at 280.

¶ 9. Applying the logic of Wells, this Court has reviewed the offending testimony. Farmer testified as follows:

Q: And I want you to kind of limit, because it’s a long videotape, your relation of what you saw to the jury from the time 17:53 until 17:56. And that would be, what, about seven minutes, or six, or seven minutes?
A: Yes, sir.
BY DEFENSE COUNSEL: I presume I may have a continuing objection to all of this, now?
BY THE COURT: Yes, sir, continuing objection.
Q: From those times I’ve just talked about from 7:53.00 to 7:56.00, what did you observe?
A: A gentleman walked in the store. He walks back to the Newport rack. He picks up Newports off the rack and he drops them on the floor. He picks them back up and walks to the front of the store. Before he gets to the counter, he puts them in his hands and he bolts out the front door. Never pays for them.

Durham testified as follows:

Q: All right. So how did you become aware of a shoplifting at the store?
A: Uh, I was in the back putting up cigarettes from the truck that we had got in, and Sylvia Wood was out front working and she said — came back there and said, “Did the man pay for three cartons of Newport?” I said, ‘What man?” I said, “Sylvia, I’m in the back. Nobody comes back here and pays for anything.”
So, that’s when I went to the TV — to our TV and rewinded the tape to see who it was. And that’s when I saw him get three cartons of cigarettes. He dropped like one or two on the floor and picked — reached down to pick them up. Then he went down to the counter and straight out to the door....
Q: Now, of course, you said you’d seen that videotape?
A: Yes.
Q: That’s what you saw?
A: Yes, sir.
Q: Now, were those cartons of cigarettes for sale in the Tobacco Superstore?
A: Yes, sir.
Q: What do those go for?
A: Uh, $31.99.
Q: Per carton?
A: Yes, sir.
Q: And you said you saw three of them?
A: Yes, sir.
Q: And how did you know they were Newports?
A: Uh, they were green and white. They are where the Newports go.
Q: All right.
A: I mean—
Q: All right. Now, you saw some individual take those and you watched him on the video, and what happened?
A: He just took the cigarettes and left with them. He never paid for them. He went to the counter where our cash register is and went straight out the door.

¶ 10. Clearly, neither witness possessed personal knowledge of the event which was recorded on the videotape. Clearly, neither witness would then be positioned under Rule 701 to offer opinion testimony regarding Ratliffs recorded actions. However, like the court in Wells, considering the totality of the evidence before the court, “the error was, at best, harmless.” Id. at 280 (citations omitted).

II. WAS THE EVIDENCE SUFFICIENT TO SUSTAIN A VERDICT OF GUILTY?

¶ 11. Ratliff argues that “[t]he elements of shoplifting are simply not proven in the case at bar. Any individual could have removed the Newport cigarettes from the shelf... .The only evidence thereof is a videotape and the inadmissible testimony of [Farmer] and [Durham].”

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

[W]e must, with respect to each element of the offense, consider all of the evidence — not just the evidence which supports the case for the prosecution — in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Wetz v. State, 503 So.2d 803, 808 (Miss.1987) (citations omitted).

¶ 13. Furthermore, matters regarding the weight and credibility of the evidence are to be resolved by the jury. Neal v. State, 451 So.2d 743, 758 (Miss.1984). This Court is not at liberty to reverse unless, with respect to one or more of the elements of the charged offense, the evidence considered is such that reasonable and fair-minded jurors could only find the accused not guilty. Christian v. State 859 So.2d 1068, 1072(¶ 12) (Miss.Ct.App.2003) (citing Wetz, 503 So.2d at 808; McClain v. State, 625 So.2d 774, 778 (Miss.1993)).

¶ 14. The jury viewed the videotape of the shoplifting. The jury heard the testimony of Farmer and Durham, as well as the testimony of the investigating officer. The jury was able to examine the coat Ratliff was wearing when he was arrested. The evidence is not such that reasonable and fair-minded jurors could only find Ratliff not guilty. This argument lacks merit.

III. WAS THE JURY VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 15. Ratliff next argues that he in entitled to a new trial. When discussing whether the verdict is against the overwhelming weight of the evidence, the standard of review is abuse of discretion in failing to grant a new trial. In Montana v. State, the Mississippi Supreme Court stated:

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the 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 stand would sanction an unconscionable injustice will this Court disturb it on appeal.

Montana v. State, 822 So.2d 954, 967-68(¶ 61) (Miss.2002) (citation omitted). As already discussed, the record reflects ample evidence and testimony to support the verdict. This issue lacks merit.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF FELONY SHOPLIFTING AS AN HABITUAL OFFENDER AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. THE SENTENCE IMPOSED SHALL RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

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


text:
    Kostmensky NOBLES, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-02012-COA.
    Court of Appeals of Mississippi.
    Aug. 3, 2004.

      Paul McGerald Luckett, MeComb, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   CHANDLER, J.,

for the Court.

¶ 1. Kostmensky Nobles was found guilty by a jury of the Pike County Circuit Court of distribution of cocaine (Count I) and conspiracy to distribute cocaine (Count II) on October 10, 2002. Nobles appeals his conviction and sentence, asserting that the circuit court erroneously allowed evidence of another indictment into the proceedings. He further argues that the jury’s verdict was against the weight of the evidence and that the circuit court erred in not granting his motion for a JNOV or, in the alternative, for a new trial. Finding no merit in Nobles’ assignments of error, we affirm his sentence and conviction.

FACTS

¶ 2. On February 10, 2002, Agent Tony Powell and other agents from the Mississippi Bureau of Narcotics met with William Sturdivant, a confidential informant, to arrange a crack cocaine “buy-bust” transaction with Fred Porter, who had been under investigation by the Bureau. Sturdivant was given $1,000 in marked state funds and equipped with a body transmitter. He called Porter and made arrangements to meet him at his house to buy some crack cocaine.

¶ 3. When Sturdivant arrived at Porter’s house, he was informed that the crack cocaine was at another location. Sturdi-vant told Porter that he would give him $500 before he made the purchase and the remaining $500 upon delivery of the drugs. Porter agreed and left the house. When he returned, law enforcement officers swarmed the area and arrested Porter after a brief foot chase. Porter told the agents that he had purchased the crack cocaine from Kostmensky Nobles, who lived with his girlfriend several houses away.

¶ 4. The agents immediately proceeded to the home of Nobles’ girlfriend, Sonya McWilliams. Agents Powell and Kenny Anderson obtained McWilliams’ written consent to search the house. Nobles was in the kitchen playing cards with three other men. After Nobles was handcuffed, another agent of the Mississippi Bureau of Narcotics, Sheldon Jolliff, observed Nobles trying to reach into his right pocket, which prompted him to grab Nobles’ hand and remove the contents of his pockets. He discovered a plastic bag containing 8.1 grams of crack cocaine and $550 in cash, $500 of which was later determined to be marked state funds. An additional 21.8 grams of crack cocaine were found in a bedroom with Nobles’ belongings.

¶ 5. Nobles was arrested on two counts of selling crack cocaine, as well as for possession of cocaine with intent to distribute, possession of marijuana with intent to distribute and possession of a firearm by a convicted felon. He and Porter were indicted by a grand jury of the Pike County Circuit Court on May 28, 2002, on charges of distributing cocaine to a confidential informant and conspiracy to distribute cocaine. Nobles was tried on October 10, 2002. At the close of the State’s case-in-chief, Nobles moved for a directed verdict. The circuit court denied the motion. After the jury returned guilty verdicts on both charges, Nobles’ motion for a new trial or, in the alternative, for a JNOV, likewise was denied by the circuit court. He was sentenced on October 16, 2002, as an habitual offender.

LAW AND ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRONEOUSLY ALLOWED EVIDENCE OF ANOTHER INDICTMENT INTO THE PROCEEDINGS

¶ 6. At the time of his arrest, Nobles was charged with two counts of distributing cocaine as well as two counts of possession of a controlled substance. The indictment for possession was entered separately from that charging him with distribution. Nobles filed a motion in limine to prohibit introduction of evidence of the indictment for possession. The circuit court granted the motion in part, instructing the State to not mention the other indictment, but allowing into evidence testimony that Nobles was in possession of crack cocaine at the time of his arrest. While Nobles now accuses the district attorney of applying “shotgun” tactics to convict him and asserts that the circuit court erroneously allowed the State to rely upon an arrest report attached to the indictment for possession, thus improperly prejudicing his case, his argument is not supported by the trial record.

¶ 7. On direct examination, Narcotics Agent Tony Powell testified about the events of February 10, 2002, culminating in the discovery of cash and crack cocaine in Nobles’ pocket when he was handcuffed. When questioned about the search for drugs on the premises, Nobles’ attorney objected and renewed his motion in limine. In conference, the State challenged Nobles’ assertion that evidence that he was in possession of crack cocaine at the time of his arrest was impermissible evidence of other crimes. The State argued instead that it was offered to show a plan, motive, and opportunity as permitted by Rule 404(b) of the Mississippi Rules of Evidence. The circuit court agreed, noting that a carefully-drawn limiting instruction would be required. The court further reminded Powell to not mention that a gun and marijuana had been found during the search and admonished the attorneys to keep Nobles’ habitual offender status from the jury.

¶ 8. Powell made no reference in his testimony to other charges or indictments. However, on cross-examination, Nobles’ own attorney asked Powell about the role Agent Sheldon Jolliff had played, directing his attention to the case reports he had prepared following the arrest and questioning him about which report he had used on direct examination. The district attorney objected and the circuit court reminded Nobles’ attorney that he was opening the door to discussion of other charges against his client.

¶ 9. To the limited extent any reference to the separate indictment for possession of cocaine was made, Nobles cannot claim any prejudice. Rule 404(b) of the Mississippi Rules of Evidence provides as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In drug eases, “evidence of prior acts offered to show intent to distribute is not barred by M.R.E. 404 and is properly admissible if it passes muster under M.R.E. 403 and is accompanied by a proper limiting instruction.” Smith v. State, 656 So.2d 95, 99 (Miss.1995). The circuit court conducted a Rule 403 balancing test and found that the probative value of the evidence outweighed any potential prejudice, because it showed the existence of a plan and absence of mistake and helped to present “the whole picture” to the jury. See Brown v. State, 483 So.2d 328, 330 (Miss.1986) (even where other offense has not resulted in a conviction, evidence may be admissible “to present the complete story of the crime” to the jury). Moreover, to further minimize any potential prejudice to the defendant, the jury was given a proper limiting instruction as to the purposes for which the evidence could be considered. Clarke v. State, 859 So.2d 1021 (¶ 19) (Miss.Ct.App.2003). Accordingly, we find no merit to the assignment of error.

II. WHETHER THE JURY’S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE CIRCUIT JUDGE ERRED IN NOT GRANTING NOBLE’S MOTION FOR A JNOV, OR IN THE ALTERNATIVE, FOR A NEW TRIAL

¶ 10. Nobles contends that the verdict of the jury was against the overwhelming weight of the evidence. He therefore argues that the circuit court erred in refusing to grant his motion for a JNOV or, in the alternative, for a new trial. We disagree.

¶ 11. The jury is charged with weighing and considering conflicting evidence and the credibility of the witnesses. McClain v. State, 625 So.2d 774, 778 (Miss.1993). In questioning the sufficiency of the evidence, we are required to review that evidence in a light most favorable to the State, giving it the benefit of all reasonable inferences which may be drawn from it and accepting as true that evidence which supports guilt. Id. This Court is authorized to reverse only where, with respect to one or more elements of the offense charged, the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty. Id.

¶ 12. Reviewing the record in a light most favorable to the State, we find that there was more than sufficient evidence to support the jury’s findings. The jury heard the audiotape of the transaction between Sturdivant, the confidential informant, and Porter. Porter testified that Nobles sold him the crack cocaine used in the transaction with Sturdivant. Agent Powell likewise testified that Porter directed them to Nobles at the time of the “buy-bust.” When Nobles was arrested, $550 in cash, $500 of which was marked as state funds, and a plastic bag containing a white rock substance were found in his pocket. Tests performed by the State Crime Laboratory verified that the bag contained cocaine. An additional 21.8 grams of cocaine was found in his bedroom.

¶ 13. A motion for a new trial asks the Court to hold that the verdict was contrary to the overwhelming weight of the evidence. Crowley v. State, 791 So.2d 249 (¶ 15) (Miss.Ct.App.2000). “[T]his Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an unconscionable injustice.” Ford v. State, 753 So.2d 489(¶ 8)(Miss.Ct.App.1999). Because the jury’s verdict is supported overwhelmingly by the evidence in the record, the circuit court did not abuse its discretion in refusing to grant Nobles’ motion for a new trial. Accordingly, we affirm his conviction and sentence.

¶ 14. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I UNLAWFUL DISTRIBUTION OF COCAINE AND SENTENCE OF THIRTY YEARS AND COUNT II CONSPIRACY TO COMMIT UNLAWFUL DISTRIBUTION OF COCAINE AND SENTENCE OF TEN YEARS WITH SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIFTEEN YEARS TO SERVE ON COUNT I AND TEN YEARS ON COUNT II DAY FOR DAY WITHOUT POSSIBILITY OF PROBATION, PAROLE OR EARLY WORK RELEASE WITH THE REMAINING FIFTEEN YEARS ON COUNT I TO BE SERVED ON POST-RELEASE SUPERVISION, AND PAY FINE OF $50,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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