author: EASLEY, Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. John H. SHEFFIELD.
    No. 2004-JP-00931-SCT.
    Supreme Court of Mississippi.
    Sept. 16, 2004.

      Luther T. Brantley, III, attorney for appellant.
    John H. Sheffield, appellee, pro se.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. On February 12, 2004, the Mississippi Commission of Judicial Performance (Commission) filed a formal complaint against John H. Sheffield, Justice Court Judge, Central District, Lee County, Mississippi, (Judge Sheffield) alleging judicial misconduct in violation of Article 6, Section 177A Mississippi Constitution of 1890, as amended. Judge Sheffield met with the Commission on February 18, 2004. Counsel for the Commission and Judge Sheffield entered into an Agreed Statement of Facts and Proposed Recommendation which was submitted and filed on April 9, 2004. The Commission unanimously accepted and adopted the Agreed Statement of Facts and Proposed Recommendation. The Agreed Statement of Facts and Proposed Recommendation was in lieu of an evidentiary hearing on the facts.

¶ 2. The Commission’s Finding of Facts and Recommendation were filed with this Court on May 11, 2004. Specifically, the Commission found that Judge Sheffield’s conduct violated Canons 1, 2 A, 3 B(2) and 3 B(9) of the Code of Judicial Conduct. The Commission found that Judge Sheffield’s behavior constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Section 177A of the Mississippi Constitution of 1890, as amended.

¶3. The Commission recommended to the Court that Judge Sheffield be publicly reprimanded, fined $192.00 and assessed the costs of this proceeding in the amount of $100.00. A joint motion for approval of recommendations filed by the Commission was filed with this Court along with a memorandum brief in support of joint motion for approval of recommendation filed by the Commission. We adopt the Commission’s recommendation of public reprimand and payment of the assessed fine of $192.00 and the assessed cost of this proceeding, in the amount of $100.00.

FACTS

¶ 4. According to the memorandum in support of the joint motion for approval of the Commission’s recommendations submitted to this Court, on June 11, 2004, the facts demonstrate that Judge Sheffield was upset over a lack of funding for a court bailiff and stated on or about June 30, 2003, or July 1, 2003, words to the effect, “he would teach the county a lesson or would make the county pay.” On July 2, 2003, in his official capacity as Justice Court Judge, he held criminal court. He suspended fines in 13 cases, thereby depriving Lee County of the suspended fines. In 4 bad check cases against Edward L. Owens, Judge Sheffield not only suspended Owens’s fines but also suspended the State assessments, in violation of Mississippi law. The Commission had previously cautioned Judge Sheffield about suspending such assessments in Commission file no. 2002-304.

DISCUSSION

¶ 5. The standard of review for judicial misconduct proceedings is de novo. Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872, 874 (Miss.2000) (citing Miss. Comm’n on Judicial Performance v. Gunn, 614 So.2d 387, 389 (Miss.1993)). The Commission’s findings, based on clear and convincing evidence, are given “great deference.” Id. This Court, however, is obligated to conduct an independent inquiry. Miss. Comm’n on Judicial Performance v. Neal, 774 So.2d 414, 416 (Miss.2000). Even though the Commission’s finding are considered, this Court is not bound by the findings, and additional sanctions may be imposed. Miss. Comm’n on Judicial Performance v. Whitten, 687 So.2d 744, 746 (Miss.1997).

I. WHETHER JUDGE SHEFFIELD’S CONDUCT CONSTITUTES WILLFUL MISCONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE WHICH BRINGS THE JUDICIAL OFFICE INTO DISREPUTE PURSUANT TO SECTION 177A OF THE MISSISSIPPI CONSTITUTION.

¶ 6. In judicial performance proceedings, this Court determines whether the conduct of Judge Sheffield constitutes willful misconduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Section 177A of the Mississippi Constitution of 1890, as amended.

This Court has held that:

Willful misconduct in office is the improper or wrongful use of power of his office by a judge acting intentionally or with gross unconcern for his conduct and generally in bad faith. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive. However, these elements are not necessary to a finding of bad faith. A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith....
Willful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute. However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute.

Miss. Comm’n on Judicial Performance v. Whitten, 687 So.2d 744, 747 (Miss.1997) (quoting In re Quick, 553 So.2d 522, 524 (Miss.1989)).

¶ 7. This Court has held that:

While the conduct of Respondent, in our opinion, amounted to willful misconduct in office and conduct prejudicial to the administration of justice, bringing the judicial office into disrepute, we recognize as quoted in In re Anderson, supra, that a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute. The result is the same regardless of whether bad faith or negligence and ignorance are involved and warrants sanctions.

Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872, 875 (Miss.2000) (quoting In re Anderson, 451 So.2d 232, 234 (Miss.1984)).

¶ 8. Here, Judge Sheffield and the Commission have filed a joint motion for approval of the Commission’s recommendations and to accept the Commission’s findings of fact and conclusion of law. The Commission found that Judge Sheffield violated Canons 1, 2 A, 3 B(2) and 3 B(9) of the Code of Judicial Conduct. In the case sub judice, Judge Sheffield’s suspension of the fines and State assessments were in response to the county’s lack of funding for a court bailiff. We find that Judge Sheffield’s conduct constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. Accordingly, we adopt the Commission’s and Judge Sheffield’s joint agreement.

II. WHETHER JUDGE SHEFFIELD SHOULD BE PUBLICLY REPRIMANDED AND FINED $192.00 AND ALL COSTS AS RECOMMENDED BY THE COMMISSION.

¶ 9. The Commission and Judge Sheffield recommend that Judge Sheffield be publicly reprimanded, fined $192.00, and assessed all costs associated with this proceeding in the amount of $100.00.

¶ 10. Imposing sanctions is left solely to the discretion of this Court. Miss. Comm’n on Judicial Performance v. Jones, 735 So.2d 385, 389 (Miss.1999). The sanction, however, ought to fit the offense at issue. Boykin, 763 So.2d at 876.

¶ 11. In determining the appropriate sanction for each case before this Court mitigating factors are reviewed pursuant to this Court’s holding in In re Baker, 535 So.2d 47 (Miss.1988).

¶ 12. Today, in Miss. Comm’n on Judicial Performance v. Gibson, No. 2004-JP-00442-SCT, 883 So.2d 1155, 2004 WL 2065688 (Miss. Sept. 16, 2004), this Court has modified Baker to apply generally to the determination of all sanctions in judicial misconduct proceedings rather than merely applying to the question of public reprimand and now examines the appropriateness of sanctions based on the following factors: (1) The length and character of the judge’s public service; (2) Whether there is any prior case law on point; (3) The magnitude of the offense and the harm suffered; (4) Whether the misconduct is an isolated incident or evidences a pattern of conduct; (5) Whether moral turpitude was involved; and (6) The presence or absence of mitigating or aggravating circumstances.

¶ 13. First, there is no evidence on the record of the length or character of Judge Sheffield’s public service. Second, we have found judicial misconduct in violation of the Code of Judicial Conduct and imposed a public reprimand and fines where a judge has improperly dismissed matters before the court. See Miss. Comm’n on Judicial Performance v. Warren, 791 So.2d 194, 197 (Miss.2001). Third, the conduct was a gross abuse of Judge Sheffield’s power to act in his official capacity as a municipal court judge. Fourth, the record does not show any other incidents that demonstrate that this type of behavior evidences a pattern of conduct by Judge Sheffield. Fifth, there was no moral turpitude involved in the offense. Finally, aggravating circumstances are present in that Judge Sheffield suspended the fines in 13 cases, thereby depriving Lee County of the suspended fines, and state assessments in 4 bad check cases in response to the county not funding a court bailiffs position. Mitigating circumstances are also present in light of the fact that Judge Sheffield has acknowledged the inappropriateness of his conduct and is in agreement with the findings of the Commission.

¶ 14. Accordingly, we find that Commission’s and Judge Sheffield’s joint agreement should be upheld.

CONCLUSION

¶ 15. In conclusion, we find that the conduct of Lee County Justice Court Judge John H. Sheffield constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Section 177A of the Mississippi Constitution of 1890, as amended. The proposed sanctions and fine are in line with past cases of the same or similar nature. In addition, the fine is specifically tied to the misconduct. We find that a public reprimand and fine of $192.00 with assessed court costs of $100.00 is appropriate. This reprimand should be read in open court on the first day of the next term of the Circuit Court of Lee County after this decision is final by the presiding judge with Judge Sheffield present.

¶ 16. Furthermore, Judge Sheffield shall supply proof of his compliance with this order to this Court when the fine and costs imposed herein this order are satisfied.

¶ 17. LEE COUNTY JUSTICE COURT JUDGE JOHN H. SHEFFIELD SHALL BE PUBLICLY REPRIMANDED BY THE PRESIDING CIRCUIT COURT JUDGE ON THE FIRST DAY OF THE NEXT TERM OF THE LEE COUNTY CIRCUIT COURT AFTER THIS DECISION IS FINAL, AND SHALL PAY A FINE OF $192.00 AND SHALL PAY THE COSTS OF THIS PROCEEDING, $100.00.

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


source: Caselaw Access Project

license: Public Domain

text:
    Rochelle CULBERT, et al. v. JOHNSON & JOHNSON, Mallan G. Morgan, M.D., and Sav-On-Drugs of Columbia, Inc. Janssen Pharmaceutica, Inc. and Johnson & Johnson, v. Rochelle Culbert, et al.
    Nos. 2003-IA-00881-SCT, 2003-IA-00918-SCT.
    Supreme Court of Mississippi.
    Sept. 23, 2004.

      Richard Clinton Strong, Ken R. Adcock, Mark D. Morrison, Lester Joseph Meng, III, attorneys for appellants/appellees.
    Christy D. Jones, John C. Henegan, Robert L. Johnson, III, Kari Louise Foster, Chris J. Walker, John Lewis Hinkle, A1 Nuzzo, Thomas M. Louis, attorneys for appellees.
    Donna Brown Jacobs, Christy D. Jones, Anita Modak-Truran, John C. Henegan, Robert L. Johnson, III, attorneys for appellants Janssen Pharmaceutica, Inc. and Johnson & Johnson.
    Before COBB, P.J., EASLEY and GRAVES, JJ.
   EASLEY, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. Thirty plaintiffs, collectively known as the “Plaintiffs,” filed suit in Jefferson County Circuit Court for injuries allegedly sustained from using the prescription drug Propulsid. Two of those plaintiffs were from Jefferson County, ten are Mississippi residents who live in eight different counties and eighteen reside out-of-state. The two plaintiffs that are Jefferson County residents are Clara Malone and Janice Davis. The filed complaint named as defendants, the makers of Propulsid, Janssen Pharmaceutica, Inc., which is a corporation based in New Jersey; Janssen’s New Jersey-based parent corporation, Johnson & Johnson (collectively, “Janssen”); Ashraf M. Nofal, M.D.; Nathan Bradford, M.D.; Stephen Harless, M.D.; Simon Cofrances-co, D.O.; Malian Morgan, M.D.; Bank-ston Pharmacy; Henrich Drug Store, Inc.; Conova’s City Drug Store; Fred’s Pharmacy, Inc.; Eckerd Corporation; Rite-Aid/K & B; Wal-Mart Stores, Inc.; Con-don’s East Union Pharmacy; Kroger Limited Partnership I; People’s Drug Store; Sav-on Drugs, Inc., who allegedly filled the prescriptions and John Does 1-10 as yet unidentified individuals, collectively identified as the “Defendants.”

¶ 2. Janssen contends that the Plaintiffs’ claims were improperly joined. Janssen argues that the Plaintiffs took Propulsid at different times, under different labels and warnings and in response to different marketing materials. Janssen further contends that the Plaintiffs have different preexisting conditions that might bear upon any injury. Because of those differences, Janssen sought to have the Plaintiffs’ join-der in Jefferson County severed, alleging that the inquiries into alleged defective design, failure to warn, breach of warranty and misrepresentation will be wholly distinct in each plaintiffs case. Furthermore, Janssen states that none of the non-Jefferson County Plaintiffs purchased the allegedly defective product or received medical treatment in Jefferson County.

¶3. The trial court granted Janssen’s motion to sever as to any plaintiffs without original jurisdiction and venue in Jefferson County. The Plaintiffs filed a motion for clarification and rehearing of, order. The trial court granted the Plaintiffs’ motion for clarification and rehearing, in part, as to clarification and denied, in part, as to rehearing. The trial court’s order also denied the Plaintiffs’ request to certify the case for interlocutory appeal. The trial court’s order stated that “those plaintiffs without original jurisdiction in Jefferson County, Mississippi, ... should be transferred to the court or courts of the plaintiffs’ counsel’s choosing as provided for in the Mississippi Rules of Civil Procedure.” However, the trial court’s order did not specify to which counties the cases were to be transferred. On cross-appeal, the Defendants seek to have this Court remand this matter to the trial court to order the transfer into the appropriate jurisdictions for the in-state Plaintiffs without venue in Jefferson County and dismissal of the out-of-state Plaintiffs under the doctrine of forum non conveniens, or in the alternative, for lack of venue.

¶ 4. In turn, we granted permission for these interlocutory appeals. Justice Kay Cobb issued an order granting the Plaintiffs’ petition for interlocutory appeal by permission and the Defendants’ cross-petition for interlocutory appeal pursuant to M.R.A.P. 5(a). Justice Cobb also executed an order on behalf of the Court declining the Plaintiffs’ request to consolidate this matter with Janssen Pharmaceutica, Inc. v. Keys, No. 2003-IA-00275-SCT.

DISCUSSION

¶ 5. The standard of review regarding the joinder of Plaintiffs and the correctness of venue used by this Court is to determine whether the trial court abused its discretion. Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092, 1097 (Miss.2004). We will not disturb a plaintiffs choice of venue unless there is no credible evidence supporting the factual basis for the claim of venue. Burgess v. Lucky, 674 So.2d 506, 510 (Miss.1996). See also Armond, 866 So.2d at 1098 (“plaintiffs choice of a forum should not be disturbed except for weighty reasons”). As in Armond, our review in this case turns on whether the trial court properly applied M.R.C.P. 20, our permissive join-der rule. Armond, 866 So.2d at 1094. We find that Armond controls the disposition of the substantive issues raised by the parties on appeal.

¶ 6. In Janssen Pharmaceutica, Inc. v. Scott, 876 So.2d 306 (Miss.2004), this Court recently addressed a similar factual situation as the case at hand, stating:

It is imperative we strike a balance in our jurisprudence between the need for fairness to the parties and judicial economy. In the end, the benefits of efficiency must never be purchased at the cost of fairness. Armond, 866 So.2d at 1100 (quoting Malcolm v. Nat’l Gypsum Co., 995 F.2d 346, 350 (2d Cir.1993)). For “it is possible to go too far in the interests of expediency and to sacrifice basic fairness in the process.” Malcolm, 995 F.2d at 354. The discretion to consolidate cases is restrained by our paramount concern for a fair and impartial trial for all parties, plaintiffs and defendants. Armond, 866 So.2d at 1100. There is an innate danger in asking jurors to assimilate vast amounts of information against a variety of defendants and then sort through that information to find what bits of it apply to which defendant.

¶ 7. Here, as in Scott, a jury might well be overwhelmed with thirty separate fact patterns that are offered to prove medical malpractice. See Scott, 876 So.2d at 308. That is why in Armond, 866 So.2d at 1102, we ordered the claims against the defendant physicians severed. See Scott, 876 So.2d at 308. “The two prongs of Rule 20 must always be met. While it does not rise to the level of a distinct factor in the joinder analysis, an important consideration is if the joinder will result in undue prejudice to the parties.” Id.

¶ 8. Our decisions in Armond and Scott fully control the case at hand. Accordingly, we affirm the trial court’s decision to sever the Plaintiffs’ claims. We further affirm the trial court’s April 17, 2003, order granting clarification as it required the Plaintiffs to provide the trial court an order of transfer, “transferring the claims of those Plaintiffs without jurisdiction in Jefferson County, Mississippi, ... to the court or courts of the Plaintiffs’ counsel’s choosing as provided for in the Mississippi Rules of Civil Procedure.” Miss.Code Ann. § 11-11-17 provides for the transfer, rather than dismissal, of an action that lacks venue to the venue which it belongs. M.R.C.P. 82(d) provides:

When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as though originally filed therein... .The plaintiff shall have the right to select the court to which the action shall be transferred in the event the action might properly have been filed in more than one court.

¶ 9. Accordingly, we remand this case to the trial court for the Plaintiffs to comply with the trial court’s order to provide an order of transfer as to the ten in-state Plaintiffs’ claims to the venues where the claims could have been properly filed. We further remand this case to the trial court to dismiss the eighteen out-of-state Plaintiffs’ claims without prejudice.

¶ 10. Finally, we find that two Jefferson County Plaintiffs, Clara Malone and Janice Davis, do not meet the same transaction or occurrence test established by this Court in Armond. Therefore, we further instruct the trial court to sever the claims of the improperly joined Jefferson County plaintiffs for separate trials.

CONCLUSION

¶ 11. Therefore, for the reasons stated herein, the judgment of the Circuit Court of Jefferson County, Mississippi, is affirmed as to No. 2003-IA-00881-SCT and reversed as to No. 2003-IA-00918-SCT, and these cases are remanded for further proceedings consistent with this opinion.

¶ 12. NO. 2003-IA-00881-SCT; AFFIRMED AND REMANDED.

NO. 2003-IA-00918-SCT; REVERSED AND REMANDED.

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

      . Dr. Confranceso was granted summary judgment by the trial court and is not a party to this case on appeal.

      . As the argument in support of the 18 out-of-state Plaintiffs being allowed to be joined with the in-state-Plaintiffs, the Plaintiffs state that "Janssen is already defending numerous claims resulting from the use of Propulsid in Mississippi ... and will not result in unnecessary expense or trouble for the Defendant.”
      The Plaintiffs further contend that since "there are several Mississippi Plaintiffs already involved ... there is a local interest in deciding these cases in Mississippi and the administrative costs on the courts will not increase.”

      . Miss.Code Ann. § 11-11-3 provides where civil actions may be commenced. Miss.Code Ann. § 11-11-3 also references transfer to the proper county under Miss.Code Ann. § 11-11-17 when a civil action is brought in an improper county.


author: CARLSON, Justice,

text:
    Lori NICHOLS v. David Wayne FUNDERBURK.
    No. 2002-CT-00087-SCT.
    Supreme Court of Mississippi.
    Sept. 23, 2004.

      Angela Newsom Snyder, John David Weddle, Tupelo, attorneys for appellant.
    David Wayne Funderburk, appellee, pro se.
   ON WRIT OF CERTIORARI

CARLSON, Justice,

for the Court.

¶ 1. Lori Nichols filed a complaint against David Wayne Funderburk for paternity, child support and equitable division of property. The Itawamba County Chancery Court entered a final judgment declaring David as the natural father of the two children, granting custody of the children and child support to Lori and denying Lori’s request for equitable division of property. Lori appealed the chancellor’s decision to the Court of Appeals which affirmed the judgment of the chancellor. See Nichols v. Funderburk, 881 So.2d 266 (Miss.Ct.App.2003). Lori’s motion for rehearing was denied, and we granted her petition for writ of certiorari. Finding that the chancellor was correct in finding that there was no partnership formed between Lori and David and no property acquired through joint efforts, we affirm the judgments of both the Court of Appeals and the Itawamba County Chancery Court.

FACTS

¶ 2. In approximately 1989, when Lori Nichols was sixteen years old and David Wayne Funderburk was twenty-five years old, the couple began living together. During their cohabitation, which lasted until 2001, two children were born. Lori and David never married.

¶ 3. In 1989 David purchased a house, with the deed listing him and his mother as joint owners. David paid the monthly mortgage, and all of the bills were in David’s name except for the cable. In 1991 David’s father turned over the family business to David (Home Town Deli), and David took out a $25,000 loan to remodel the restaurant. David leased the business the first seven years, and he began operating the restaurant the last three years. Under David’s management, the restaurant was open every Thursday, Friday and Saturday night. Lori began working for David one year after he started managing the restaurant. David claims he paid Lori $500 per week; however, Lori argues she was only paid $240 per week. All of David’s employees were paid in cash. In 1997 David’s mother gave him an apartment complex (The Mustang Apartments).

¶ 4. Although Lori claims she was David’s business partner, both parties testified that neither David nor his parents ever intended for Lori to have a major role in their family businesses. David and Lori had separate checking accounts. Lori was not authorized to write checks on any of David’s personal or business accounts. Most importantly, Lori’s name was never added to the title of any of David’s property. In 2001 when the couple separated, Lori left the home and took one-half of the furniture.

¶ 5. On June 5, 2001, Lori filed a complaint for paternity, child support and an equitable division of property against David. Finding David to be the natural father of the two children, the chancellor awarded primary custody to Lori and ordered David to pay $425 per month in child support. The chancellor, however, denied Lori’s request for an equitable distribution of property finding there was “no legal remedy existing at this time to compensate her for the 14 years that she chose to cohabitate [sic] without the benefit of marriage.” The Court of Appeals, on a 5-5 decision, affirmed the chancellor, finding insufficient evidence that the parties acquired property through their joint efforts. Nichols, at 270. The court distinguished prior Mississippi case law finding the couple to have never held themselves out to be married. Id. at 269. The court determined that Lori was compensated weekly for her services as an employee of the restaurant. Id. at 271. The court also held that even though Lori may have managed the restaurant and contributed to the business of the apartment complex, she did not own those assets nor did David ever intend for her to be his business partner in those endeavors. Id. at 270-71. Therefore, the Court of Appeals held that Lori was not entitled to any division of property. Id. at 271.

¶ 6. Then-Judge Lee, joined by then-Presiding Judge King and Judges Myers and Thomas and by Judge Bridges in part, dissented arguing that although the chancellor acknowledged Lori’s contributions to the restaurant, his single point of contention was that Lori’s name was not on the title to the restaurant business. Id. at 275. Judge Lee determined that the chancellor erred in concluding that Lori’s weekly pay precluded her from qualifying as a partner in David’s business. Id. Judge Lee argued that although David paid the monthly mortgage payments on the home, Lori purchased all the furniture and took care of the house, which appreciated in value during their cohabitation from $16,000 to $55,000. Id. at 275. Judge Lee further determined that “[t]he evidence and testimony showed that Lori was an integral part of the restaurant’s operation for many years, so much so that I find her efforts were ‘joint’ with those of David as to entitle her to equitable distribution of proceeds from the sale of the business.” Id. at 275.

DISCUSSION

¶ 7. This Court’s standard of review regarding determinations of a chancellor is well-established.

This Court will reverse a chancellor only when he is manifestly wrong. Hans v. Hans, 482 So.2d 1117, 1119 (Miss.1986); Duane v. Saltaformaggio, 455 So.2d 753, 757 (Miss.1984). A chancellor’s findings will not be disturbed unless he was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Tinnin v. First United Bank of Miss., 570 So.2d 1193, 1194 (Miss.1990); Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). Where there is substantial evidence to support his findings, this Court is without the authority to disturb his conclusions, although it might have found otherwise as an original matter. In re Estate of Harris, 539 So.2d 1040, 1043 (Miss.1989). Additionally, where the chancellor has made no specific findings, we will proceed on the assumption that he resolved all such fact issues in favor of the appellee. Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990). The chancellor’s decision must be upheld unless it is found to be contrary to the weight of the evidence or if it is manifestly wrong. O.J. Stanton & Co. v. Mississippi State Highway Comm’n, 370 So.2d 909, 911 (Miss.1979).

In re Estate of Johnson, 735 So.2d 231, 236 (Miss.1999). See also Madison County v. Hopkins, 857 So.2d 43, 47 (Miss.2003); Adoption of C.L.B. v. D.G.B., 812 So.2d 980, 985 (Miss.2002). However, the chancery court’s interpretation and application of the law is reviewed under a de novo standard. Tucker v. Prisock, 791 So.2d 190, 192 (Miss.2001); In re Carney, 758 So.2d 1017, 1019 (Miss.2000).

¶ 8. Lori argues that the Court of Appeals did not properly apply Mississippi case law which would have allowed for a division of property to award Lori a fair share of the assets accumulated during the couple’s relationship. Lori contends that Mississippi precedent allows for equitable division of property in cohabitation cases where one of the cohabitants contributes not only domestically, but also through labor directly related to the business or property acquired during cohabitation. The couple’s home was purchased in 1989, the year the cohabitation began. The family restaurant was purchased in 1991 and was operated by David in 1997. The apartments were purchased in 1999. Lori contends that she contributed domestically to the couple’s home which significantly appreciated in value during their relationship. Lori also played a significant role in managing the family restaurant and occasionally worked at the apartment complex.

¶ 9. The Court of Appeals found that unlike all other cohabitation cases in Mississippi, Lori and David never married nor did they ever maintain that they were married. Nichols at 269. The court found that the couple “merely chose to cohabit without the benefit of marriage.” Id. at 271. The court further held that David did not intend for Lori to have any ownership interest in either the restaurant or the apartments as evidenced by his paying her for services rendered. Id. This was also evidenced by testimony of both parties. Lori testified that while she believed she was David’s business partner, David had informed her that he and his parents did not want her to have anything to do with their family businesses. Therefore, he never intended to add her name to any of the deeds. Lori also testified that there were never any written agreements between herself and David regarding the businesses. Lori stated that she believed there to be some type of marriage between David and her because they lived together and had children. However, Lori also testified that she was content with her situation because she had known for several years that David was never going to marry her.

¶ 10. Equitable division of property is a concept of our marital and domestic laws. A marital relationship may be created in conformity with applicable law, Miss.Code Ann. §§ 98-1-1 to -25 (Rev. 1994 & Supp.2003). Mere cohabitation does not vest marital rights. Pickens v. Pickens, 490 So.2d 872, 875 (Miss.1986). This Court has recognized an exception for equitable division of property where there was a marriage or the appearance of a marriage when no legal marriage actually existed. See id. at 875; Taylor v. Taylor, 317 So.2d 422, 423 (Miss.1975).

¶ 11. In Pickens, this Court determined that a woman was entitled to equitable distribution for domestic services rendered. The Pickenses were once married, but chose to continue living together after they divorced. This Court held that:

Where parties such as these live together in what must at least be acknowledged to be a partnership and where, through their joint efforts, real property or personal property, or both, are accumulated, an equitable division of such property will be ordered upon the permanent breakup and separation.

490 So.2d at 876. In Taylor, this Court again held that a putative wife was entitled to the equitable distribution of property upon separation. This Court held that:

The facts in this case demonstrate without question that the chancellor did what a decent regard for the sensibilities of humanity demanded. These people lived together and shared the vicissitudes of life for eighteen years. The separation east her adrift just as surely as if she had been his lawful wife. The chancellor appears to have decided that the strict letter of the law ought not to require him to ignore that he was dealing with human beings.

317 So.2d at 423. In each of these cases, the couples had all either been married or contended to have married. In the case sub judice, Lori and David never married or purported to have married.

¶ 12. The chancellor correctly relied upon the legal standard of Davis v. Davis, 643 So.2d 931 (Miss.1994). In Davis, this Court determined that Elvis’ Davis was not entitled to an equitable distribution of her companion’s business because she never participated in his business. Her companion also lavishly showered Elvis with gifts and did, in fact, propose marriage, but Elvis refused. At the time of the complaint, Elvis was living in a new home and driving a new car, all purchased by her previous companion. Here, Lori was paid for her services rendered at David’s restaurant as he paid all of his other employees. David never intended to marry Lori, and she was aware of his decision. Lori was also aware that David never intended to make her a partner in his business ventures. Therefore, the chancellor and the Court of Appeals were correct in finding that there was no evidence that Lori and David entered into a partnership or acquired assets through their joint efforts.

CONCLUSION

¶ 13. The Court of Appeals and the chancellor were correct in finding that Lori and David’s relationship was more comparable to the relationship in Davis than those in Taylor and Pickens. When a man and woman cohabit without the benefit of marriage, they do so at their own peril insofar as resolving real and personal property disputes upon their separation. In this instant case, because the facts do not support a finding of Lori and David entering into a partnership or acquiring assets through their joint efforts, we find that Lori is not entitled to any distribution of property solely owned by David. Therefore, we affirm the judgments of the Court of Appeals and the Itawamba County Chancery Court.

¶ 14. AFFIRMED.

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


author: SMITH, Chief Justice,

text:
    William SANDERSON v. STATE of Mississippi.
    No. 2002-CT-01626-SCT.
    Supreme Court of Mississippi.
    Sept. 23, 2004.

      Patsy Ann Bush, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorneys for appellee.
   ON WRIT OF CERTIORARI

SMITH, Chief Justice,

for the Court.

¶ 1. William Sanderson was convicted in the Circuit Court of Copiah County of aggravated assault and conspiracy to commit aggravated assault. He appealed to this Court arguing his indictment was fatally defective and that the verdict of the jury was against the overwhelming weight of the evidence. His appeal was assigned to the Court of Appeals which found that the conspiracy count of the indictment was fatally defective because it failed to identify the victim of the assault. It reversed and ordered Sanderson discharged from the indictment for conspiracy, but affirmed his conviction and sentence for aggravated assault. After thorough review we find that the indictment as a whole provided Sanderson with sufficient notice regarding the charges against him and that the victim’s name need not have been included in the conspiracy count. The Court of Appeals erred. Therefore, we reverse the Court of Appeals’ judgment as to the conspiracy count, affirm its judgment otherwise, and affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. In December 2001, Peggy Lott was murdered. There were strong suspicions that Mrs. Lott’s sixteen-year-old daughter Jamie had committed the crime, likely as a result of anger over her mother’s efforts to prevent her from seeing and having sexual relations with Gary Mullins. Jamie Lott was pregnant, and the family believed that Mullins was the father. On the night of Mrs. Lott’s funeral, several family members went to a gravel pit that was a known point of rendezvous for Jamie and Mullins. Among the group was the defendant, William Sanderson, Jamie’s half-brother and a son of Mrs. Lott. There was testimony that at least some in this group had gone to the gravel pit wanting to impress upon Mullins an understanding of his obligations towards the baby that Jamie Lott was carrying. There was also testimony that some wanted to beat Mullins.

¶ 3. Someone in the group telephoned Mullins. Being informed that Jamie Lott wanted to see him at the gravel pit (she actually was not with the group), Mullins agreed to go there. Once he arrived, there was an altercation. Others were involved, but for purposes of this case, it is important that there was evidence that Sanderson approached Mullins, tried to hit him, and missed. Sanderson claimed that Mullins then stabbed him several times, causing him to fall to the ground. Sander-son then claims that he saw Mullins going after another person, so he pulled Mullins down on top of him. Sanderson then got up from the ground and asked one of the others to take him to the hospital. Sand-erson stated that he did not stab Mullins. He also claims that he never conspired with anyone else to stab Mullins. He stated that at most, they discussed giving Mullins a beating.

¶ 4. Joseph Taylor was one of the other men involved in the fight. He testified that Sanderson wanted to speak to Mullins to make sure he was going to take care of Jamie and her child. Taylor told a police officer that he had stabbed Mullins. He later recanted and said that Sanderson had asked him to take the blame until Sander-son was released from the hospital and could leave town.

¶ 5. Mullins testified that as soon as he got out of his car at the gravel pit, Sander-son stabbed him. He claims he was stabbed in the chest but was able to remove the knife himself. He and Sander-son began fighting over the knife, and he stabbed Sanderson a few times in the struggle. Mullins then ran into the woods to seek help at a house nearby. Mullins was later taken to the hospital where he underwent surgery to repair wounds to his lung and liver.

¶ 6. After a jury trial, Sanderson was found guilty of aggravated assault and conspiracy to commit aggravated assault, and he appealed. A divided Court of Appeals reversed the conspiracy conviction and affirmed the aggravated assault conviction. The Court of Appeals majority held that the indictment “must in some manner comply with Rule 7.06 by giving [ ] the essential facts constituting the offense charged, [ ] else the defendant is not on notice nor can jeopardy properly operate.” Sanderson v. State, 881 So.2d 878, 883 (Miss.Ct.App.2004).

ANALYSIS

Whether a Specific Person, as the Intended Victim of a Conspiracy, must Be Named in the Indictment.

¶ 7. The issue here involves count two of the indictment, the conspiracy charge. The conspiracy count provides:

COUNT TWO, and that on or about the 22nd day of December, 2001, in Copiah County, Mississippi, and within the jurisdiction of this court, the said WILLIAM SANDERSON AND JOSEPH D. TAYLOR did wilfully, unlawfully, felo-niously and knowingly conspire and agree, each with the other, to wilfully, unlawfully, feloniously and knowingly commit the crime of Aggravated Assault, contrary to and in violation of Sections 97-1-1 and 97-3-7 of the Mississippi Code of 1972, and against the peace and dignity of the State of Mississippi.

¶ 8. The Court of Appeals majority reversed the conspiracy conviction because this count does not list Gary Mullins as the victim of the aggravated assault. The Court of Appeals majority cites Burks v. State, 770 So.2d 960, 963 (Miss.2000), which states, “an indictment must state the name of the victim of an offense where that is an element of the offense.... ” We agree that this is a correct statement of the law. However, the elements of a conspiracy require “recognition on the part of the conspirators that they are entering into a common plan and knowingly intend to further its common purpose.” Peoples v. State, 501 So.2d 424, 428 (Miss.1987). There is no suggestion that a victim’s name is an element of conspiracy.

¶ 9. Furthermore, “[s]o long as a fair reading of the indictment, taken as a whole, clearly describes the nature and cause of the charge against the accused, the indictment is legally sufficient.” Farris v. State, 764 So.2d 411 (Miss.2000). As three judges of the Court of Appeals’ mentioned in their separate opinion concurring in part and dissenting in part, Gary Mullins’s name was in the first count immediately preceding count two. Count one charged:

The Grand Jurors of the State of Mississippi ... upon their oaths present that WILLIAM SANDERSON AND JOSEPH D. TAYLOR, late of county aforesaid, on or about the 22nd day of December, 2001, in COPIAH County, Mississippi, and within the jurisdiction of this court, did wilfully, unlawfully, feloniously and purposely cause bodily injury to another, namely, one Gary Mullins, a human being, with a deadly weapon, to-wit: a knife, by then and there stabbing the said Gary Mullins, contrary to and in violation of Section 97-3-7 of the Mississippi Code of 1972, and against the peace and dignity of the State of Mississippi, this being count one of the indictment ...

(emphasis added). Using the Farris rule, and reading both counts as a whole, Sand-erson was given fair and adequate notice of the crimes for which he was tried. As the three Court of Appeals judges correctly pointed out, simply because Mullins’s name was not repeated in the second count does not mean that Sanderson did not understand the charges against him. Count one clearly identified the victim of the aggravated assault, and the next count leads a reasonable person to believe that the conspiracy was based on the aggravated assault.

¶ 10. Since the indictment as a whole provided Sanderson with sufficient notice regarding the charges against him, we hold that the victim’s name need not be included in the conspiracy count. The Court of Appeals erred in concluding otherwise.

CONCLUSION

¶ 11. For these reasons, we reverse the judgment of the Court of Appeals as to the conspiracy count, affirm its judgment otherwise, and affirm the trial court’s judgment.

¶ 12. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART.

COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWELVE (12) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

COUNT II: CONVICTION OF CONSPIRACY TO COMMIT THE CRIME OF AGGRAVATED ASSAULT AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES SHALL RUN CONCURRENTLY.

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


author: /s/ Chuck Easley CHUCK EASLEY, JUSTICE

text:
    George POWELL, Personal Representative of the Estate of Lorenzo Powell, Appellant v. CLAY COUNTY BOARD OF SUPERVISORS; Laddie Huffman in His Official Capacity as Sheriff of Clay County, Mississippi; and Carl Pierce, Appellees.
    No. 2003-CA-01663-SCT.
    Supreme Court of Mississippi.
    Sept. 23, 2004.
   ORDER

¶ 1. This matter is before the Court sitting en banc on the Court’s own motion to dismiss appeal, and the Court finds as follows:

1. George Powell, Personal Representative of the Estate of Lorenzo Powell, filed a wrongful death action against the Clay County Board of Supervisors (Clay County), Laddie Huffman, in his official capacity as Sheriff of Clay County, Carl Pierce and the Mississippi Department of Corrections (MDOC) on.
2. Clay County, the Sheriff and Pierce filed a motion for summary judgment on March 13, 2001. The MDOC filed a motion for summary judgment on July 5, 2001.
3. On September 20, 2001, Circuit Court Judge John M. Montgomery executed an order to grant summary judgment as to the MDOC. In a separate order also signed on September 20, 2001, Judge Montgomery granted summary judgment as to Clay County, the Sheriff and Pierce. The orders were filed on September 24 and September 25, 2001, respectively.
4. On October 10, 2001, Judge Montgomery executed a judgment of dismissal with prejudice as to the MDOC based on having previously sustained the motion for summary judgment. The order was filed on October 17, 2001.
5. Powell filed his notice of appeal on October 19, 2001, appealing the grant of summary judgment to Clay County, the Sheriff, Pierce and the MDOC, as well as the judgment of dismissal as to MDOC.
6. On March 25, 2002, Powell filed a motion for rehearing in the circuit court. Powell also sought to present additional evidence not previously available germane to the question of liability.
7. The MDOC was released from any further proceedings via an agreed order between the parties.
8. On September 6, 2002, Judge Montgomery executed an order granting Powell’s motion to reconsider. The circuit court found that M.R.C.P. 60(b) allowed the court to reconsider its decision. The court directed the parties to refile their briefs and Powell was allowed to use the county’s insurance policy which was newly discovered to have never been made part of the record and not before the court during its deliberation. The order was filed on September 9, 2002.
9. On December 12, 2002, this Court by Chief Justice Edwin L. Pittman executed an order finding that Powell’s appeal should be dismissed as no final appealable judgment existed in this matter. The Court stated that the trial court had, subsequent to the filing of the notice of appeal with this Court, reconsidered its prior ruling and set aside the summary judgment for the Clay County defendants.
10. Clay County sought to reinstate Powell’s appeal to this Court. The Court refused the request to reinstate the appeal and vacate the trial court’s reconsideration of its summary judgment. On April 2, 2003, this Court by now Chief Justice James W. Smith, Jr., denied the request to reinstate the appeal dismissed by this Court on December 12, 2002.
11. Due to Judge Montgomery’s retirement from the bench, James Kitchens, Jr., took his place as circuit court judge. On July 15, 2003, Judge Kitchens ordered that Judge Montgomery’s reconsideration order be dismissed and Judge Montgomery’s original order of summary judgment be reinstated. Judge Kitchens’s order found that Judge Montgomery did not have jurisdiction to reconsider the original order for summary judgment once the notice of appeal had been filed. Judge Kitchens’s order does not reference M.R.C.P. 60(b) which infers concurrent limited jurisdiction nor this Court’s order dated December 12, 2002, dismissing the appeal based on Judge Montgomery’s reconsideration. Powell appeals this decision to this Court.
¶ 2. THEREFORE, PREMISES CONSIDERED, the Court finds that the circuit court erred in dismissing the order granting reconsideration and reinstating the original order of summary judgment. The case should be reversed and remanded to the circuit court for further proceedings.
¶ 3. IT IS, THEREFORE, ORDERED that Judge Kitchens’s order is reversed and the case is hereby remanded to the circuit court for further proceedings consistent with this order.

¶ 4. SO ORDERED.

/s/ Chuck Easley CHUCK EASLEY, JUSTICE

FOR THE COURT

DIAZ, J., NOT PARTICIPATING.

      . Lorenzo Powell was at the time of his death a State inmate. He worked on the garbage truck that was driven by Pierce, a county employee, when he fell off the garbage truck resulting in his death. Lorenzo Powell suffered fatal injuries on November 11, 1996.


author: COBB, Presiding Justice,

text:
    Helen BARNETT v. Charles E. OATHOUT.
    No. 2001-CA-01309-SCT.
    Supreme Court of Mississippi.
    Oct. 7, 2004.

      Gary L. Carnathan, Tupelo, attorney for appellant.
    Allison Farese Thomas, David Lee Robinson, attorneys for appellee.
   ON MOTION FOR REHEARING

COBB, Presiding Justice,

for the Court.

¶ 1. The motion for rehearing is granted. The original opinions are withdrawn, and this opinion is substituted therefor.

¶ 2. This is a case in which the Mississippi Department of Human Services (DHS) removed two children from their home in April, 1996 based on a finding of medical neglect. Two and a half years later, after the boy’s parents divorced, the Foster Care Review Board recommended that DHS begin termination of parental rights proceedings. Rather than terminating parental rights, the Lee County Youth Court, in December, 1998, awarded durable legal custody of the children to the foster parents who had been the children’s caregivers for much of the two and a half years in which they had been in the legal custody of DHS. Two weeks later, after the foster mother, Helen Barnett, refused to allow visitation to Charles E. Oathout, the natural father, Charles filed a petition in chancery court for modification of custody, or alternatively, to obtain visitation rights, which had not been specifically awarded in the Youth Court Order. Visitation was granted, but the chancellor denied the motion for a change in custody, stating: “[i]n order to warrant a change of custody ... the moving party would be required to show a material change of circumstances since the rendition of the Youth Court Order dated 12/3/98.”

¶ 3. During the next year and a half the relationship between Charles and Helen became acrimonious. Many motions were filed in the chancery court, Charles attempting to gain custody of the boys and Helen attempting to terminate Charles’s visitation. In December, 1999, after Helen filed a motion to terminate visitation, and Charles answered with a counter motion for contempt because Helen refused to allow court ordered visitation, the court appointed a guardian ad litem to represent the interests of the children. Although some visitation was occurring, communications between Charles and Helen had come to a halt, and Charles complained that he was not able to find out anything about the children or their medical condition.

¶ 4. During this period of time, in May, 1999, Charles married Karlene, a nurse of 11 years, and they had a child together in March, 2000. There is a general consensus among the chancellor, guardian ad li-tem, and the witnesses for both parties, that his marriage to Karlene was a turning point in Charles’s life. In July, 2000, Charles filed a new petition for custody modification, arguing that Helen’s unjustified refusal to allow visitation at times and also her refusal on several occasions to allow telephone contact between Charles and the boys constituted a material change in circumstances adverse to the children.

¶ 5. A three-day hearing was held in chancery court. In July of 2001, in a 25-page written opinion, the same chancellor who had previously denied a change of custody because there was no showing of an adverse change in circumstances, now awarded custody of the boys to Charles, finding that:

Helen Barnett’s actions against Charles E. Oathout constitute a material and substantial change of circumstances which has adversely affected the children. Charles E. Oathout has sincerely and substantially changed his circumstances and proven to this Court that he is now worthy of caring for his two children. This Court is of the opinion that it would be in the children’s best interest to be returned to their natural father. Charles E. Oathout is hereby granted full care, custody and control of his two minor children ...

Aggrieved by this decision, Helen appealed to this Court. Finding that the chancellor committed no error, we affirm the trial court.

STANDARD OF REVIEW

¶ 6. “A chancellor’s decision cannot be disturbed ‘unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or an erroneous legal standard was applied.” Blevins v. Bardwell, 784 So.2d 166, 168 (Miss.2001) (quoting Madden v. Rhodes, 626 So.2d 608, 616 (Miss.1993)). “The chancellor has the sole responsibility to determine the credibility of witnesses and evidence, and the weight to be given each.” Lee v. Lee, 798 So.2d 1284, 1288 (Miss.2001) (citing Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994)). “[W]e will not arbitrarily substitute our judgment for that of a chancellor who is in the best position to evaluate all factors relating to the best interest of the child.” Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993) (quoting Yates v. Yates, 284 So.2d 46, 47 (Miss.1973)).

ANALYSIS

¶ 7. Helen argues that the chancellor erred in applying the legal standard for custody modification cases, by placing emphasis on Charles as a natural parent and by placing too much emphasis on Charles’s rehabilitation and present fitness to have custody, rather than whether the change of custody is in the best interest of the children. Additionally, Helen argues that the chancellor’s findings in this case were manifestly wrong and against the weight of the evidence. Helen states that the applicable standard in child custody modification cases is “that there has been a material change in circumstances as to the custody that would benefit and be for the best interests of the children.” In re R.D., 658 So.2d 1378, 1386 (Miss.1995). Helen supports her argument by pointing to the use of the words “natural father” in the chancellor’s opinion and the chancellor’s statement that Helen “as a foster mother was under a duty to provide such care to the children and was properly compensated for her services by [DHS].” Helen also argues that there is insufficient evidence to find that Helen’s conduct presented a change in circumstance adverse to the children.

¶ 8. Helen’s suggestion that the chancellor used the natural parent presumption is misplaced. The natural parent presumption presumes:

that best interests of a child will be preserved by it remaining with its parents or parent. In order to overcome this presumption there must be a clear showing that the parent has (1) abandoned the child, or (2) the conduct of the parent is so immoral (as) to be detrimental to the child, or (3) the parent is unfit mentally or otherwise to have the custody of his or her child. McKee v. Flynt, 630 So.2d 44, 47 (Miss.1993); Carter v. Taylor, 611 So.2d 874, 876 (Miss.1992); Rodgers v. Rodgers, 274 So.2d 671, 672 (Miss.1973). Absent clear proof of one of the above circumstances, the natural parent is entitled to custody of his or her child. McKee, 630 So.2d at 47 (citing Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986)).

Grant v. Martin, 757 So.2d 264, 265 (Miss.2000). Had the chancellor relied on the natural parent presumption, there would have been no burden placed on Charles to show that there was a material change adverse to the children, and Helen would have been required to show that Charles had abandoned his children or that he was unfit to be a parent. The chancellor never mentioned the natural parent presumption, and there was no discussion of Helen’s ability or inability to prove abandonment or Charles’s unfitness as a parent. The burden was placed on Charles to show a substantial change in circumstances adverse to the children. This was true both when the first petition for modification of custody was denied and during the second modification proceeding, in which custody was awarded to Charles. As quoted above, the chancellor found that Charles had shown that there was a substantial change in circumstances adverse to the children and that it would be in the children’s best interest to be reunited with their father. This is not a finding based on the natural parent presumption.

¶ 9. As conceded by Helen, the proper standard for use in DHS cases was announced in the case of In re R.D, 658 So.2d 1378 (Miss.1995). There, this Court agreed with DHS’s assertion that a chancellor should apply the standards found within the Youth Court Law, specifically Miss.Code Ann. §§ 43-21-103 and 43-21-613. Section 43-21-103 discusses that a purpose of the youth court law is to provide services that are in the state’s and the child’s best interest. Section 43-21-613 provides that orders of the youth court determining the disposition of a child who has been adjudicated neglected may be modified in the discretion of the youth court thereafter, as necessary. Specifically, subsection (2) provides:

On motion of a child or child’s parent, guardian or custodian, the youth court may, in its discretion, conduct an informal hearing to review the disposition order. If the youth court finds a material change of circumstances relating to the disposition of the child, the youth court may modify the disposition order to any appropriate disposition ...

In re R.D, 658 So.2d at 1386. We stated:

A combined reading of these two sections clearly indicates that the applicable standard for the chancellor’s consideration was “that there has been a material change in circumstances as to custody that would benefit and be for the best interest of the children.”

Id. Additionally, in comparing this standard to the normal standard between competing parents, the Court stated “[tjhere-fore, the focus does not change in custody matters where it is not one parent vying against the other for custody of their child, but rather, DHS seeking to retain custody of a neglected or abused child rather than have him returned to a parent.” Id. at 1387. This standard has since been reiterated. K.D.G.L.B.P. v. Hinds County Dep’t of Human Servs., 771 So.2d 907 (Miss.2000); In re T.A.P., 742 So.2d 1095 (Miss.1999).

¶ 10. Contrary to the legal arguments before this Court, the legal standard announced in Grant v. Martin, 757 So.2d 264 (Miss.2000), does not apply in this case. DHS was not involved in Grant. In Grant, a couple signed a voluntary agreement as part of an irreconcilable differences divorce, stating that the children would remain in the custody of their paternal grandmother. During the next four years, the children’s mother exercised visitation, but was not even interested enough in the children’s medical or school activities to find out the names of the children’s doctors or teachers. Four years later, only after the mother remarried, did the mother attempt to regain custody of the children by claiming the natural parent presumption. This Court in Grant stated:

Our law clearly has a strong presumption that a natural parent’s right to custody is superior to that of third parties, whether grandparents or others. This is as it should be. However, this Court has never before been asked to rule on whether the natural parents’ consent to and joinder in court proceedings granting custody to such third parties should alter that presumption. Because stability in the lives of children is of such great importance, we have carefully weighed the impact of establishing an exception, or a new standard, for such instances. While we do not want to discourage the voluntary relinquishment of custody in dire circumstances where a parent, for whatever reason, is truly unable to provide the care and stability a child needs, neither do we want to encourage an irresponsible parent to relinquish then-child’s custody to another for convenience sake, and then be able to come back into the child’s life years later and simply claim the natural parents’ presumption as it stands today.

Grant v. Martin 757 So.2d 264, 266 (Miss.2000). In the present case, the boys were removed from the Oathout home by DHS, and placed in a foster home, because the parents were incapable of taking care of the boys’ medical problems. According to the child welfare statutes, specifically, § 43-15-13, a major goal of DHS is to place children in its custody into a permanent living arrangement at the earliest opportunity. Termination of parental rights proceedings must be started within 15 months of adjudication of neglect unless the child has been placed in durable legal custody or long-term or formalized foster care by a court of competent jurisdiction, or DHS has determined that there are compelling or extraordinary reasons why termination of parental rights would not be in the best interest of the child. See Miss. Code Ann. § 45-15-13(2)©, (3) & (4). When DHS started termination of parental rights proceedings in the present ease, the Youth Court, rather than terminating parental rights, awarded durable legal custody to Helen. The Youth Court proceedings are not part of this record, but it is clear from the surrounding circumstances that this is not the type of voluntary relinquishment of custody for convenience sake that was contemplated in Grant. The fact that Charles filed a petition for modification of custody only two weeks after durable legal custody was awarded supports the supposition that this was not a “voluntary” act. It was more than likely an acquiescence on the part of Charles in an effort to avoid termination of parental rights proceedings.

¶ 11. Helen argues that her status as durable legal custodian affords her greater rights than that of a foster parent. It is not clear from the statute what rights durable legal custody provides to the legal custodian. Durable legal custody was discussed at length in reference to termination of parental rights in the case of In re S.A.M., 826 So.2d 1266, 1272 (Miss.2002), where we stated:

Miss.Code Ann. § 93-16-10300 (2000) provides durable legal custody as an alternative to termination of parental rights:
Legal custody and guardianship by persons other than the parent as well as other permanent alternatives which end the supervision by the Department of Human Services should be considered as alternatives to the termination of parental rights, and these alternatives should be selected when, in the best interest of the child, parental contacts are desirable and it is possible to secure such placement without termination of parental rights.

Miss.Code Ann. § 43-21-105(y) further provides that:

Durable legal custody means the legal status created by a court order which gives the durable legal custodian the responsibilities of physical possession of the child and the duty to provide him with care, nurture, welfare, food, shelter, education and reasonable medical care. All these duties as enumerated are subject to the residual rights and responsibilities of the natural parent(s) or guardian^) of the child or children.
The fact that under durable legal custody the parent retains some form of residual rights and responsibilities is a vital and obvious distinction to termination of parental rights. Another distinction is that a decision to grant durable legal custody is not permanent and is, therefore, subject to further review and modification by the courts.

In re S.A.M., 826 So.2d at 1279 (emphasis added). Additionally, this Court has stated that “the intent of durable legal custody is merely to avoid the required annual dispositional reviews by the youth court and constant oversight and monitoring by DHS, not a complete preclusion of the court’s jurisdiction, DHS’s further involvement or court ordered review hearings as needed.” Id. at 1279. Thus, we do not agree that the granting of durable legal custody to Helen gave her any greater rights than those of a foster parent.

¶ 12. The legal standard used by the chancellor was correct. The chancellor had to make two determinations: first, whether Charles showed that there was a substantial change of circumstances which adversely affected the children, where it would be in the children’s best interest that custody be changed; and second, whether Charles showed that he had eliminated the behavior that caused the children to be taken in the first place. See D.J.L. v. Bolivar DHS ex rel. McDaniel, 824 So.2d 617 (Miss.2002). The chancellor’s findings addressed both of these questions: that there was a material change in circumstances adverse to the children such that the best interest of the children would be served by a modification of custody and that Charles had corrected the situation which caused the children to be removed initially.

¶ 13. In fact, there was substantial credible evidence in the record supporting the chancellor’s findings on both questions. A three-day hearing was held on August 9 and 10, 2000, and May 2, 2001. The chancellor, in a 25-page opinion, summarized the facts of the case, then summarized the testimony of the witnesses, and discussed the guardian ad litem’s report and why he disagreed with its conclusion. His opinion is summarized further here:

Case background:

¶ 14. The chancellor first discussed Charles and Brenda’s unstable marital situation, and their inability to care for their children who both have serious medical problems, and the resulting removal of the boys from the Oathout home. He discussed Charles’s unstable work history and the fact that Charles had been fired the previous year. He discussed Charles’s marriage to Karlene, that they live in a mobile home which is paid for on four acres of land which they own in Walnut, Mississippi, and that Charles now worked at Dover Elevator Company, which is a steady, good paying job close to his home. He noted that Charles testified that he no longer drinks or smokes, has passed all drugs test given him, and has completed all of the DHS parenting classes.

¶ 15. The chancellor then discussed some of the problems that he felt Helen was causing. After one visitation, Helen reported to the Alcorn County DHS that one of the boys was burned while visiting Charles. The guardian ad litem and the chancellor agreed that Charles’s version of events, that it was not a burn, but a scrape received from a fall from a tree, was more probable. DHS did not pursue the complaint. Helen refused the next visitation and put a block on her phone so that Charles could not speak to the boys between visits. The chancellor stated “Helen Barnett has always caused [Charles] problems with his visitation with the two boys, particularly in scheduling the visits.”

Charles Oathout’s witnesses:

¶ 16. Max Walker, a licensed marriage and family therapist, and expert witness for Charles Oathout, testified that he conducted a home study of Charles’s home and found nothing that would cause any problems for the children, and stated that Charles and the two boys “interact normally.” He testified that Charles was depressed by the situation, but that his personality was not such that he would abuse the boys. He also testified that Charles had brought the younger boy in to see him for depression. He testified that he was concerned that Helen had “programmed” the boys to call their father Charles, rather than “father” or “daddy,” and that continued custody with Barnett could be “potentially damaging” to the boys. He conceded on cross-examination that he knew that a third child had been removed from the Oathout home, that in early 1997 Charles had been found smoking marijuana in front of the older boy who was at the time a little over two years old, and that DHS had required Charles to go to drug counseling. He stated that he had not talked with Helen, but he had requested Helen to come to his office, which she did not do. He asserted his opinion that custody should be restored to Charles because “people can change.”

¶ 17. Ray Flanagan, a minister, stated that he had known Charles since Charles was five or six years old, when Charles came to his church when he was the youth director. He stated that Charles had stayed away from church a long time, but had been bringing the boys to church for a couple of years prior to DHS taking custody of them. He agreed to allow Charles’s supervised visitation to occur in his home. He said the boys were always glad to see Charles, did not seem to be afraid of Charles, and were typical young boys.

¶ 18. Karlene Oathout, Charles’s new wife, testified that she had been a nurse for 11 years, and knew how to administer the boys’ medications and breathing treatments. She brought two children into the marriage, and she and Charles have had one child together. She has a close-knit family that lives close by. She had not worked since her last child was born, but planned to go back. She testified that she gets along well with the boys as do her children. She said that Charles had straightened up his life since they met and that they now attend church regularly. She has epilepsy which is controlled by medication.

¶ 19. Brenda, Oathout’s first wife and the mother of the boys, testified that Charles is a good father and the boys would be safe with him. She stated that Charles allowed her to visit the boys and talk to them on the phone when they were with him. She stated that Helen has also allowed her to visit with the boys, but Helen told her that if she “spoke for Charles” at the trial, Helen would no longer allow it.

¶ 20. Carolyn Oathout, Charles’s mother, testified that Helen was at one time a friend of hers and that she allowed Helen to babysit the boys during the week, while she was away on her job driving a truck. She had custody of the boys for a while, then shared custody with Helen. She and Helen eventually had problems, after which Helen would not allow Carolyn to visit the boys. She said she did not intend Helen to get custody of the children. She acknowledged that Charles has had problems, but stated that she would not help him get custody of the boys if she thought he would hurt them. She also stated that Charles and Karlene together are able to administer the boys’ medical treatments.

¶ 21. Polly Martin, Karlene’s sister, testified that Charles is a good father and that Karlene and the two boys get along well.

DHS workers and Helen Barnett’s Witnesses:

¶ 22. Mary Lee Robinson, a social worker for the Lee County DHS, and a witness for Barnett, stated that she was involved in the case until 1998, but had not seen Charles since then, nor met Karlene, nor been in Charles and Karlene’s home. She read from her DHS case file that a 1996 DHS service agreement was never completed by Charles and Brenda, that Charles refused to sign a second agreement, but that both Charles and Brenda later completed parenting classes. The file showed that in 1997, when the older son, then age 2, was on trial placement with Charles and Brenda, Charles’s mother found Charles smoking marijuana in the child’s presence. She noted that Charles was “sporadically in and out” of the children’s lives during this period. Her file showed that Helen was given durable legal custody in December of 1998, and that DHS records show allegations of child abuse against Charles in March and October, 1999, and in July 2000. The record shows that the March, 1999 allegation was substantiated. Although she had not been involved in the case since 1998, she believed that the children had “bonded” with Helen and it would be harmful to totally remove them from Helen’s home.

¶ 23. Leslie Hinds, a clinical social worker at the Mantachie Clinic and a witness for Barnett, said she had met with both children seven or eight times over a three to four month period. Helen was present during the sessions. She stated that the younger boy was visibly upset about the idea of visiting his father, but the older boy was not. This is in contrast to the testimony of her co-worker, Dr. Trudy Porter, discussed below. Hinds stated that Helen had told her that the younger boy did not want to visit his father and that Helen might be “unintentionally” influencing the minor children against Charles. She testified that she had never met Charles and would need “extensive sessions” with all parties before giving a final opinion in the case.

¶ 24. Sonja Sanderson, a social worker for the Prentiss County DHS, testified for Helen regarding the investigation into “shaken baby syndrome” suffered by the third child who was removed from the Oathout home. She testified on cross-examination that Charles had passed a lie detector test with regard to this investigation and that he followed DHS recommendations in the matter.

¶ 25. Jenny Barnes, a nurse practitioner at Mantachie Clinic, saw the younger child when Helen brought him to the clinic for “cigarette burns caused by Karlene.” The chancellor’s opinion does not indicate any testimony from Ms. Barnes about who should have custody, but she stated that both boys are asthmatic and should not be around smoking.

¶ 26. Dr. Trudy Porter, a clinical psychologist with the Mantachie Clinic, testified that she had been seeing the boys on a weekly basis since June, 1999, when Helen complained that she thought there were problems with the children after visiting with Charles. She stated that the older child had limited cognitive skills and expressed negative feelings towards Charles, including anger and rejection, but that the younger child was not negative towards Charles, and visitation did not seem to upset him. She stated that she could not tell any difference in the children after a weekend visitation period with Charles. She stated that the children needed counseling due to the impact “all this has had on them.” Her opinion was that Helen had not tried to influence the children against Charles and that the children needed security and stability and should remain with Helen because she provides the security and stability they need.

¶ 27. Mike Burleson testified that he was a private investigator hired by Helen to follow Charles when he had the minor children for visitation. He testified that he had seen Karlene smoking in their van with the children present on one occasion.

Guardian ad litem’s report:

¶28. The chancellor’s order then discussed the thoroughness of the guardian ad litem’s report, which recommended that the children stay with Helen, but that Charles be given “liberal” visitation. The chancellor briefly discussed the contents of the report, which was an exhibit to his order, noting Charles’s unstable past history and his drastic turn for the better after marrying Karlene. The chancellor stated that the report commends Helen for providing a good home, but he also stated that as a foster mother being compensated by DHS, she was under a duty to provide this. The chancellor found that despite the thoroughness of the report, the guardian ad litem had failed to give sufficient weight to the changes that Charles had made in his life and had failed to consider Helen’s negative actions toward Charles and the adverse effect these actions have on the children. The chancellor then enumerated the positive aspects of Charles and Karlene’s environment and adverse aspects of Helen’s conduct. The latter included Helen’s obvious strong negative feelings toward Charles, her placing a block on her phone, her prohibiting visitation, her failure to inform Charles of the children’s medical and school progress, and her continued allegations of abuse, none of which has caused any agency to take action against Charles. He then discussed that Helen’s own witnesses admitted that Helen’s conduct had a negative effect on the children and that the guardian ad litem’s report stated that Helen’s cooperation and encouragement had been greatly lacking with regard to Charles’ relationship with his children. The chancellor found that if Helen were awarded continued custody, there was nothing to suggest she would be any more cooperative and that allowing her to continue to attempt to diminish the relationship between the boys and their father “is certainly not in the boys’ best interest.”

CONCLUSION

¶ 29. The correct legal standard, applicable in DHS cases, was used by the chancellor in making his decision. The chancellor did not rely on the natural parent presumption, and this case is distinguishable from Grant because here there was no voluntary relinquishment of custody for convenience. Finally, the chancellor’s findings were supported by substantial credible evidence. Therefore, we affirm the chancellor’s judgment.

¶ 30. AFFIRMED.

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

      . The two boys, ages 15 months and 5 1/2 months, had asthma and hydrocephalus (fluid on the brain) and were in the hospital when DHS removed them from their parents’ home. DHS determined that the parents were not capable of caring for the children with these medical problems.

      . The record does not contain any additional information pertaining to the youth court proceeding.

      . A girl bom after the boys was removed from the home due to suspected "shaken baby syndrome.” Charles was not the natural father of this child. Charles took a lie detector test and was cleared of wrongdoing.

      . No abuse charges were ever pursued against Charles.


author: GRAVES, Justice,

text:
    Hubert Milton RINEHART v. STATE of Mississippi.
    No. 2002-KA-00723-SCT.
    Supreme Court of Mississippi.
    Oct. 7, 2004.

      Robert Sneed Laher, Tupelo, attorney for appellant.
    Office of the Attorney General, by Jean Smith Vaughan, attorneys for appellee.
   ON MOTION FOR REHEARING

GRAVES, Justice,

for the Court.

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted therefor.

¶ 2. This appeal arises from a jury verdict in the Circuit Court of Alcorn County, Mississippi, convicting Hubert Milton Rinehart of murder and sentencing him to serve a life sentence in the custody of the Mississippi Department of Corrections. Aggrieved by this conviction and sentence, Rinehart raises the following issues on appeal:

I. WHETHER THE TRIAL COURT ERRED IN DENYING RINE-HART’S MOTION FOR A CONTINUANCE.
II. WHETHER RINEHART WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.
III. WHETHER THE TRIAL COURT ERRED IN DENYING RINEHART’S MOTION FOR ACQUITTAL NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, FOR A NEW TRIAL.

FACTS

¶ 3. On May 29, 2000, Hubert Rinehart and his girlfriend, Judy Roberts, were seen at the K-Mart in Alcorn, Mississippi by Roberts’s cousin, Regina Phelps. Later that evening, Harold Little saw the couple in Rinehart’s vehicle near his property. Little talked with both Rinehart and Roberts and left them on the side of the road around 8:30 p.m. Rinehart was next seen buying cigarettes at Buck’s convenience store around 9:48 p.m., where he remarked that he needed to use the phone because Judy Roberts had driven off with his truck. Rinehart made several phone calls from the store. Rinehart telephoned his sister, Mary Dilingham, and requested that she pick him up from Buck’s convenience store. He then reported to the Sheriffs office that Judy Roberts had taken his truck. At nearly 10:00 p.m., only a few minutes later, a vehicle was reported on fire in the Kossuth community by Glenda Green whose son, Brian Green, had discovered the vehicle. The truck, located about eight miles away, belonged to Rine-hart.

¶4. The body of Judy Roberts was found the next evening on Smith Bridge Bottom Road. Roberts had died from a .38 caliber bullet wound on the left side of her head. She also sustained injuries to her face, cheek and neck.

¶ 5. The bullet was recovered from her skull, and Dr. Steven Hayne testified that forensics indicated that Roberts’s death was a result of homicide. Rinehart admitted to owning several guns and during a search of his residence a .38 caliber Smith & Wesson was found.

¶ 6. Rinehart was indicted, tried and convicted by a jury of his peers for the murder of Roberts on November 15, 2001.

DISCUSSION

I. MOTION FOR CONTINUANCE

¶ 7. Rinehart alleges that he was not well represented by his public defense counsel and needed additional time to hire private counsel, despite the fact that he was provided with two attorneys by the trial court. Rinehart asserts that he did not like the advice of his attorneys and investigator which the court had provided.

¶ 8. In the instant case, the trial judge heard Rinehart’s motion for continuance and supporting evidence and ruled to deny the motion. The trial court stated in pertinent part:

Mr. Rinehart, for the reason that this case has been set for trial at least twice, according to the court record I reviewed the other day, at a previous term of this Court and was continued, and also having been set for trial for several weeks now, the Court feels like you have had sufficient opportunity, if you could afford to and wanted to hire an attorney to represent you, a sufficient time prior to this trial for such an attorney to become acquainted with your case and to consult with you in preparation of a trial. This you have not done so. I also note that you filed an affidavit of indigency in this case, based upon which, this Court appointed you, not one but two attorneys to assist you in your defense and to try this case....
The court does not believe that your motion for continuance, at this time, Mr. Rinehart, has any merit, first of all and secondly, is not timely filed. To make this motion on the day of trial is not timely. Nevertheless, the Court would consider it if the Court believed that your motion had any merit.

¶ 9. Here, as in Atterberry v. State, 667 So.2d 622, 628-30 (Miss.1995), the trial judge did not abuse his discretion in denying Rinehart’s motion to discharge appointed counsel or his motion for continuance so that counsel of his choosing could prepare his case for trial. “A defendant has an absolute right to counsel, but his right to choose counsel is not absolute.” Id. at 630. The record reveals that the trial judge looked at the facts presented to the court and found no prejudice to Rine-hart in proceeding to trial with his two court appointed attorneys. The court also noted that Rinehart was given ample time in which to find alternative counsel prior to trial.

¶ 10. Rinehart bears the burden of showing that the denial of a continuance resulted in substantial prejudice to his right to a fair opportunity to prepare and present his defense. Jackson v. State, 538 So.2d 1186, 1189 (Miss.1989). Rinehart has failed to demonstrate that the trial judge’s ruling was an abuse of discretion which prejudiced him to the extent that he was denied a fair trial or effective representation of counsel. We find that this issue is without merit.

II. ASSISTANCE OF COUNSEL

¶ 11. Rinehart advances that his right to effective assistance of counsel was denied in violation of the Sixth Amendment of the United States Constitution. Rinehart asserts that defense counsel was not prepared for trial, because he only had two meetings with him prior to trial.

¶ 12. The Supreme Court has held that before relief may be granted for ineffective assistance of counsel, the petitioner must establish: (1) that counsel’s performance was deficient in that it fell below an objective standard of reasonable professional service, and (2) that this deficient performance prejudiced the defense such that there is a reasonable probability that the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), followed by this Court in Stringer v. State, 454 So.2d 468 (Miss.1984). Thus, both a deficiency and resulting prejudice must be shown, and an appellant’s failure to affirmatively plead and establish both prongs of the Strickland test warrants rejection on the claim.

¶ 13. We find that Rinehart has failed to overcome the strong presumption that defense counsel performed competently. Rinehart asserts that defense counsel had only two meetings with him prior to trial, implying that counsel was unprepared for trial. Rinehart persists that he expressed to the trial court that his legal representation was not to his liking prior to trial. The record reflects that the trial judge took Rinehart’s concerns into consideration when denying his motion for a continuance. In Temple v. State, 679 So.2d 611, 613-14 (Miss.1996), this Court found no error in denying a continuance for a newly appointed counsel to prepare for trial. There is no showing that a continuance would have resulted in a favorable outcome for Rinehart. The denial of a continuance does not mean that the counsel was unprepared. In fact, counsel for Rinehart filed the necessary pretrial motions and properly represented Rine-hart at trial. Defense counsel conducted a voir dire examination, offered challenges for cause, provided compelling opening and closing statements, objected to the admission of certain evidence and cross-examined witnesses. Additionally, Rinehart was given every opportunity to call witnesses and assist in his defense. Cabello v. State, 524 So.2d 313 (Miss.1988). The accused is entitled to a fair trial not a perfect one or constitutionally errorless counsel. Id. at 315.

¶ 14. The Sixth and Fourteenth Amendments to the United States Constitution operate as sureties for the right to effective assistance of counsel. The Sixth Amendment guarantees, in relevant part, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” Wheat v. United States, 486 U.S. 153, 158, 108 S.Ct. 1692, 1696, 100 L.Ed.2d 140 (1988) (quoting U.S. Const. amend. VI). This adept representation encompasses two broad principles: minimum competence and loyal assistance, Armstrong v. State, 573 So.2d 1329, 1331 (Miss.1990); Comment, Conflict of Interests in Multiple Representation of Criminal Co-Defendants, 68 J.Crim. L. & Criminology 226 (1977), all of which Rinehart was afforded. Moreover, actual prejudice has not been shown, and Rinehart was not denied any of his rights.

¶ 15. Due to the overwhelming weight and credibility of the evidence presented by the State, Rinehart’s claim does not rise to the level necessary for a finding that his attorney’s representation was constitutionally ineffective. Rinehart’s proposition is devoid of a demonstrative showing that counsel’s performance fell below an objective standard of reasonable professional service. “[Tjhis Court must give effect to all reasonable presumptions in favor of the ruling of the court below.” Woodward v. State, 533 So.2d 418, 426-27 (Miss.1988). The rulings of the trial court will be presumed correct unless proved otherwise by the actual record. Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973). Therefore, we find that this issue is without merit.

III. MOTION FOR J.N.O.V. OR IN THE ALTERNATIVE FOR A NEW TRIAL

¶ 16. Rinehart asserts that the trial court erred when it denied his motion for J.N.O.V. or in the alternative, motion for a new trial. Rinehart maintains that the guilty verdict was against the overwhelming weight of the evidence, and that denial of the motion for a new trial resulted in an unconscionable injustice. Additionally, Rinehart contends that there was no physical evidence linking him to the crime and that, therefore, the State only established the mere probability of guilt.

¶ 17. In reviewing the denial of a JNOV motion, we consider all of the evidence in the light most favorable to the appellee, and we may reverse a denial of the motion only if the evidence so favors the appellant that reasonable jurors could not have reached a contrary verdict. Kingston v. State, 846 So.2d 1023, 1025 (Miss.2003).

¶ 18. “In reviewing the decision of the trial court on a motion for a new trial, this Court views all of the evidence in the light most consistent with the jury verdict. A motion for a new trial addresses the weight of the evidence and should only be granted to prevent an unconscionable injustice.” Daniels v. State, 742 So.2d 1140, 1143 (Miss.1999) (citations omitted).

¶ 19. In the instant case, the State presented evidence that the victim had been shot with a .38 caliber gun and that such a gun was recovered from Rinehart’s residence. Likewise, though not conclusive, the State’s ballistic experts testified regarding similarities between the bullet recovered from Roberts’s body and bullets fired from the recovered gun. Because the State linked Rinehart to the crime, the trial judge properly submitted the matter for the jury’s consideration.

¶ 20. The jury sits as finder of fact and has the duty to assess the credibility of the witnesses and resolve conflicts in the evidence. Grosedose v. State, 440 So.2d 297, 300 (Miss.1983). The jury heard the witnesses’ testimony and observed the witnesses’ demeanor. The jury found that the facts in the case support a finding that Rinehart murdered Roberts. We find that there is no showing that the verdict constituted an unconscionable injustice. Additionally, Rinehart has failed to present any evidence that would warrant a new trial. The trial court did not err in denying a JNOV or a new trial.

CONCLUSION

¶21. We affirm the judgment of the trial court.

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

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