text:
    Keith MOSLEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01504-COA.
    Court of Appeals of Mississippi.
    Oct. 8, 2002.
    Rehearing Denied Dec. 3, 2002.

      Stephen P. Livingston, New Albany, Attorney for Appellant.
    Office of the Attorney General by: W. Glenn Watts, Attorney for Appellee.
    Before KING, P.J., IRVING, and BRANTLEY, JJ.
   BRANTLEY, J.,

for the court.

¶ 1. Keith Mosley was found guilty by a Union County Circuit Court of the sale of a controlled substance. Aggrieved, Mosley appeals, arguing that the trial court erred in denying several jury instructions, allowing evidence to be admitted which was not disclosed, denying him the opportunity to fully cross-examine a witness and in denying his motion for a JNOV or directed verdict. In addition, he contends the court erred in the jury selection process. Finding no error, we affirm.

FACTS

¶ 2. On August 28,1997, officers with the New Albany Drug Task Force, including Officer Tommy Smithey, set out to make a controlled buy in New Albany. Undercover Agent Tredis Anderson was sent out with a confidential informant (Cl). Prior to being sent out, both the Cl and Anderson were searched to make sure there were no drugs on them. In addition, they were given official funds to make any purchases, and Anderson was equipped with an audio wire. Smithey followed them in a car in which he could hear the transmission from the wire. Smithey’s vehicle was equipped with a video recorder. However, due to the lighting, the recording was too poor to be of any value.

¶ 3. When Anderson and the Cl reached Clarke Street, the Cl made contact with a couple on the street. The Cl was talking with the female when the male who was identified as “Black” asked “what’s up?” Anderson requested “a.$40.” Black told Anderson and the Cl to go down Clarke Street. At that time another male approached them about purchasing two rocks of cocaine.

¶4. The Cl identified the male as his cousin, Keith Mosley. Anderson gave Mosley $40 in official funds. Mosley then gave Anderson two rock-like substances which were later identified by an expert at the Tupelo Crime Lab as crack cocaine. This transaction was recorded via the wire transmitter including the identification by the Cl that the person who sold the rocks of cocaine was his cousin.

¶ 5. Mosley was brought to trial in March 2001. Anderson testified about the purchase. He stated that he had paid close attention to the person from whom he bought the cocaine and identified that person as Mosley. Smithey also testified about the procedure that the officers used in setting up a buy of controlled substances. In addition, Edwina Ard, a forensic chemist from the Tupelo Crime Lab, testified that the substance was crack cocaine. Mosley testified in his defense and denied , making the sale, but admitted that the Cl on the audio recording was his cousin. Mosley was found guilty of the sale of a controlled substance. From this verdict, Mosley appeals, arguing that the trial court committed various errors during his trial.

I. WHETHER THE TRIAL COURT ERRED DURING THE JURY SELECTION.

¶ 6. Mosley argues that the trial court erred in failing to sua sponte strike the entire jury venire due to the fact that there were no African Americans on the jury panel. Even though Mosley did not make a specific challenge at trial, Mosley alleges that the trial judge had a duty to strike the jury panel. The State argues that Mosley waived this argument by failing to object during voir dire and in post-trial motion. Additionally, the record contains no information regarding the racial make-up of the jury venire or the petit jury. '

¶ 7. This Court is unable to determine the racial makeup of the jury. Additionally, the record is void of any objections by Mosley concerning the alleged violations of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Although Mosley asserts several allegations as to the racial makeup of the jury, these assertions are not backed up by the record or by other authority. On appeal, decisions must be based upon the evidence found within the record, not on assertions made by the parties in their briefs. Mason v. State, 440 So.2d 318, 319 (Miss.1983). In addition the Mississippi Supreme Court has repeatedly held that a party waives any claims regarding the composition of his jury if he fails to object before the jury is sworn. Mack v. State, 650 So.2d 1289, 1297 (Miss.1994); see also Shaw v. State, 540 So.2d 26, 27 (Miss.1989); Thomas v. State, 517 So.2d 1285, 1286 (Miss.1987).

II. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT A DIRECTED VERDICT, PEREMPTORY INSTRUCTION AND JNOV.

¶ 8. Mosley argues that the evidence presented at trial was insufficient to support his conviction and that the trial court should have granted his motion for a directed verdict, motion for a JNOV and a peremptory instruction (D 6). He argues that since there was only one eyewitness, there was not enough evidence to support the conviction. However, the State argues that the evidence did support the conviction.

¶ 9. A motion for a directed verdict, JNOV and peremptory instruction test the legal sufficiency of the State’s evidence and the standard of review of each is essentially the same. Ellis v. State, 778 So.2d 114, 117(¶ 2) (Miss.2000). On appeal, we view the evidence in a light most favorable to the verdict and accept as true all the evidence which supports the verdict without weighing the credibility of the evidence on appeal. Id. (citing Davis v. State, 568 So.2d 277, 281 (Miss.1990)). A verdict is only reversed where reasonable and fair-minded jurors could not have found the accused guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987).

¶ 10. The evidence presented at trial included Anderson’s testimony that Mosley sold him the substance. Anderson testified that he saw Mosley for approximately one and one half minutes and identified him from a photographic lineup after the transaction. In addition, the audiotape of the transaction revealed that the Cl stated that the seller was his cousin. Although, Mosley denied that it was him on the tape, he did admit that he was the Cl’s cousin. An expert testified that the substance from the transaction was crack cocaine. This is more than enough evidence to support the conviction. Therefore, we find this issue to be without merit.

III. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT JURY INSTRUCTIONS D-4, D-5, D-7 AND D-8.

¶ 11. Mosley argues that the trial court erred in failing to grant instructions D-5, D-7 and D-8 on reasonable doubt. In addition, the court refused instruction D^t dealing with the credibility of law enforcement officers as witnesses. The State argues that the defense was not entitled to any of these instructions and that the issues were waived by failing to make a contemporaneous objection at the time the trial judge refused the instructions.

¶ 12. Jury instruction are not reviewed in isolation. Malone v. State, 486 So.2d 360, 365 (Miss.1986); As long as the instructions given properly instruct the jury of the elements of the crime and are correct statements of law, then no reversal will be granted. Id. Additionally, the court is not required to give repetitive instructions.

¶ 13. Here, defense instructions 5, 7 and 8 were general instructions to the jury about the presumption of innocence, the State’s burden of proof beyond a reasonable doubt and the requirement that each element be proved. The instructions given fully informed the jury on each of these points. As stated above the trial court is not required to give repetitive instructions. Therefore, the court did not err in refusing these three instructions.

¶ 14. Defense instruction 4 basically stated that the jury was to weigh the credibility of all the witnesses and not give any more weight to the testimony of law enforcement officers than any of the others. Mosley cites to Turner v. State, 95 Miss. 879, 50 So. 629, 630 (1909), in support of this instruction being proper. However, Mosley’s reliance is misplaced. In Turner, the court only allowed a general instruction about the jury’s duty to weigh the credibility of the witnesses and evidence. Id. The law enforcement officers were not specifically pointed out in the instruction only the term “witness” was used. Id. Specifically pointing to the testimony of the law enforcement officers in an instruction would be an improper comment on specific evidence. Thompson v. State, 807 So.2d 471, 475-76(¶ 10) (Miss.2001). Accordingly, the trial court was correct in refusing this instruction.

IV. WHETHER THE COURT ERRED IN ALLOWING TESTIMONY ABOUT EVIDENCE NOT IN DISCOVERY TO THE DEFENDANT.

¶ 15. Mosley argues that the trial court erred in failing to require the State to provide him with all discovery; in particular, photographs mentioned during Anderson’s testimony. During cross-examination, defense counsel continuously questioned Anderson’s ability to remember the defendant from a drug transaction that occurred four years prior. Anderson responded that he had refreshed his memory with photographs but was not told Mosley was in the pictures.

¶ 16. From these photographs mentioned, Mosley claims he was denied discovery. However, Mosley continued to cross-examine Anderson instead of objecting to the testimony or renewing his request for discovery for the missing photographs. Mosley never brought this issue to the trial judge and argues it here for the first time. The State argues that due to Mosley’s failure to object at trial, this issue was waived.

¶ 17. The Mississippi Supreme Court has set forth a procedure for trial judges to follow when dealing with discovery violations. See Box v. State, 437 So.2d 19 (Miss.1983). However, before that procedure can begin, the party has to bring the alleged violation to the attention of the trial judge and failure to do so is a waiver of the issue. Id. Furthermore, the law is well settled “that the failure to raise an issue in the trial court requires [the appellate court] to impose a procedural bar on appeal.” Evans v. State, 725 So.2d 613(¶ 48) (Miss.1997). Here, Mosley failed to object thereby waiving this issue on appeal.

¶ 18. Mosley also argues that the photographs used to refresh Anderson’s memory prior to trial were tantamount to an illegal lineup which constitutes reversible error. However, as with the alleged discovery violation concerning the photographs, Mosley failed to preserve this issue for appeal due to his failure to object or in any way bring this issue before the trial judge for a ruling. We find this issue has also been waived. See Livingston v. State, 525 So.2d 1300, 1302-03 (Miss.1988).

V. WHETHER THE TRIAL COURT ERRED IN FAILING TO ALLOW DEFENSE TO CROSS-EXAMINE OFFICER ABOUT PRIOR CASES.

¶ 19. Mosley argues that the trial court erred in not allowing him to fully cross-examine Anderson concerning previous cases and possible misidentifications of suspects. During cross-examination of Anderson, the prosecution objected to the relevancy of a line of questioning concerning prior drug cases on which Anderson had worked that dealt with possible mistakes in identifications. The trial judge sustained the objection.

¶ 20. On appeal, the State argues that Mosley failed to preserve this issue by failing to make a proffer on the record after the objection was sustained. Cross-examination of witnesses is limited to relevant matters. Mitchell v. State, 792 So.2d 192, 217(¶ 97) (Miss.2001). A trial court’s ruling will not be disturbed unless there is abuse of discretion. Evans v. State, 499 So.2d 781 (Miss.1986) (citing Wharton’s Criminal Evidence § 451 (13th ed.1972)). However, in order to preserve the ruling for review, a proffer must “be made of the potential testimony of the witness or the point is waived.” Lloyd v. State, 755 So.2d 12, 14(¶ 9) (Miss.1999) (citing Evans v. State, 725 So.2d 613 (Miss.1997)). Here, no proffer was made of Anderson’s testimony. Accordingly, this issue was also waived.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF UNION COUNTY OF CONVICTION OF SALE OF A CONTROLLED SUBSTANCE (COCAINE) AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS SUSPENDED IS AFFIRMED. COST OF THIS APPEAL ARE ASSESSED TO UNION COUNTY.

McMILLIN, C.J., KING and SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS and CHANDLER, JJ„ concur.


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    B. Pete BUFORD, Buford Land Partnership, LP, Dorothy Faye Kittrell and W.H. Kittrell, Appellants v. Hugh L. LOGUE, Jr. and Myra C. Logue, Appellees.
    No. 2001-CA-00977-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2002.

      Clifford C. Whitney, III, R.E. Parker, Jr., Vicksburg, for appellant.
    Barrett Blake Teller, Vicksburg, for ap-pellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   MYERS, J.,

for the Court:

¶ 1. B. Pete Buford and Buford Land Partnership, LP (Buford) and Dorothy Faye Kittrell and W.H. Kittrell (the Kitt-rells) appeal the decision of the Chancery Court of Warren County. The Honorable Pat Wise, sitting as special chancellor, granted fee simple title of two separate parcels and a private road to Hugh Logue, Jr. and Myra C. Logue (the Logues) by adverse possession. Buford and the Kitt-rells contend that the chancellor erred in granting title by adverse possession to the Logues. Buford and the Kittrells assert the following issues:

1. WHETHER THE CHANCELLOR ERRED IN FINDING THAT THE LO-GUES PROVED ADVERSE POSSESSION OF THE .24 ACRE PARCEL BY CLEAR AND CONVINCING EVIDENCE;

2. WHETHER THE CHANCELLOR ERRED IN FINDING THAT THE LO-GUES PROVED ADVERSE POSSESSION OF THE .73 ACRE PARCEL BY CLEAR AND CONVINCING EVIDENCE; AND

3.WHETHER THE CHANCELLOR ERRED IN FINDING THAT THE LO-GUES WERE ENTITLED TO FEE SIMPLE TITLE BY ADVERSE POSSESSION OF THE PRIVATE ROAD RATHER THAN AN EASEMENT.

STATEMENT OF FACTS

¶ 2. The Logues instituted an action in the Chancery Court of Warren County seeking to claim title by adverse possession to several parcels of land. Trial was held based on a second amended complaint. The chancellor granted the Logues title by adverse possession to a .24 acre parcel, a .73 acre parcel, and a private road. The chancellor held a post trial hearing based on the defendants’s motion to amend order, and for a new trial, and for other relief. The chancellor amended the order, granting the Kittrells án easement over the private road subject to the Kittrells making improvements to the road. After entry of a final judgment, Buford and the Kittrells appeal.

Acre Parcel

¶ 3. The .24 acre parcel is located in Warren County on Freeman Road. The parcel is also referred to in the record -and the briefs as “Lot 219” or “219 Freeman Road.” This piece of disputed .real property is more particularly described-by the chancellor as follows:

Commencing at the northeast corner of Section 20, Township 16 North, Range 4 East, Warren County, Mississippi; thence West, 545.50 feet; thence South, 40.00 feet to the point of beginning of the herein described parcel; thence South 73 degrees 35 minutes for 113.54 feet; thence South 55 degrees 24 minutes 34 seconds West for 34.03 feet; thence South 65 degrees 02 minutes 12 seconds West for 137.66 feet; thence South 78 degrees 19 minutes West 67.70 feet; thence North 49 degrees 22 minutes 51 seconds West for 8.92 feet to the east right of way of Freeman Road; thence with the east right of way of Freeman Road North 49 degrees 31 minutes 22 seconds East for 111.32 feet; thence with the east right of way of Freeman Road, North 35 degrees 35 minutes 03 seconds East for 55.51 feet to the point of beginning containing 0.24 acres, more or less.

¶ 4. Until his death on January 26, 1969, Archie Logue was the record owner of a greater parcel of land which included the .24 acre parcel. Upon Archie Logue’s death, title was held by his heirs until their conveyances to Jerry Beard on April 15 and April 17, 1997. Jerry Beard immediately conveyed the land to B. Pete Buford on April 18, 1997. B. Pete Buford bought the land with notice of the presence of the Logues. B. Pete Buford is the record title holder of the .24 acre parcel. All taxes due on the .24 acre parcel have been paid by the record title owners.

¶ 5. In 1967, Hugh Logue, Jr. moved a mobile home onto the land. Testimony reflects that Hugh Logue, Jr. graded the land, put in a gravel driveway, installed a utility pole, a septic tank, and a water tap, and poured concrete slabs for later installation of a carport and storage shed. The Logues later fenced in the property. The Logues claimed that in 1967 Archie Logue gave the .24 acre parcel to Hugh Logue, Jr. as a wedding gift. Buford argued that Archie Logue simply gave the Logues permission to use the parcel of land. Both sides presented conflicting testimony as to whether an attempted gift was made or was there just mere permission. There was no deed or written instrument to evidence a gift. Testimony at the trial also indicated that Archie Logue refused to give a deed to Hugh Logue, Jr.

¶ 6. The land was occupied by the Lo-gues from 1967 until 1976. The Logues moved the mobile home off the land in 1976 but continued to use the land for storage and for gardening. The carport and storage shed remained. Others, including the Kittrells, used the land for gardening and recreation. There was conflicting testimony as to whether the use of the property by other people was with or without the Logues’s permission. The Lo-gues presented testimony that they gave both expressed or implied consent. This type of use continued until 1984 when Howard Kittrell moved a mobile home onto the land. Testimony at trial conflicted as to whether Hugh Logue, Jr. granted Howard Kittrell permission to move onto the land or whether Hugh Logue, Jr. told Howard Kittrell that he was not the owner. Howard Kittrell remained on the land until 1990. Trey Logue, son of the Lo-gues, bought the mobile home from Howard Kittrell. Trey Logue remained on the land until 1997.

¶ 7. In 1997, before Jerry Beard conveyed the land to B. Pete Buford, Hugh Logue, Jr. attempted to purchase the land from Jerry Beard. Both sides presented conflicting testimony as to whether this was an admission by the Logues that they did not own the property or an attempt by the Logues to try and settle any potential dispute without going to court. After Jerry Beard declined to sell the land to the Logues, he sold it to Buford. Trey Logue was demanded to leave the land by Glenn Kittrell. Glenn Kittrell was acting under order of Buford. Testimony was presented that Hugh Logue, Jr. knew he did not have record title as owner when Trey Lo-gue left the land.

¶ 8. A videotape was offered by Buford at the post trial hearing, but not the trial. The tape is an attempt to show an admission by Hugh Logue, Jr. that the .24 acre lot did not belong to the Logues. The chancellor excluded the videotape because the posttrial hearing was granted on matters concerning the private drive, not the .24 acre parcel.

. 73 Acre Parcel

¶ 9. The .73 acre parcel is located in Warren County. The parcel is also known as “225 Freeman Road.” This piece of disputed real property is more particularly described by the chancellor as follows:

Beginning on the west right of way line of Freeman Road, marking the Northeast corner of H.L. Logue lot as recorded in Deed Book 422, page 547, Warren County Courthouse, running thence North 44° 25' West 230 feet along the East side of said lot, thence North 69° 0' East, 190.5 feet to the West right of way of Freeman Road, thence following said right of way South 32° 7' East, 41.6 feet, thence South 24° 27' East, 48.8 feet, thence South 11° 5' East, 47.2 feet, thence South 2° 5' West, 29.2 feet, thence South 24° 40' West, 38.7 feet, thence South 50° 31' West, 65.9 feet to the point of beginning. Being all in Section 20, Township 16 North, Range 4 East, Warren County, Mississippi, containing 0.73 acres.

¶ 10. Russell Barnes owned a % interest, Ella Mae Barnes Logue owned a 5é interest, and Elmer Barnes owned a % interest in the land. In 1974, Russell Barnes deeded the entire .73 parcel of land to Hugh Logue, Jr., even though he did not own all the land. The Logues prepared the land by grading the land and installing a septic tank. The Logues built a tool shed on the land and used the land for storage. The Logues also staked out a portion of the land on which to build a house, although the house was never built. Elmer Barnes assisted Hugh Logue, Jr. in staking the land. The Kittrells later used the land for parking trucks. Both sides presented testimony as to whether the Kittrells sought permission from the Lo-gues as owners. In 1997, Ella Mae Logue conveyed her interest in the land to Hugh Logue, Jr. Elmer Barnes died and his % interest passed to Margaret Barnes. Margaret Barnes, conveyed her interest to B. Pete Buford, with his notice of the Logues acting as true owners. The Logues own a % interest in the land and Buford owns a % interest in the land. The Logues have paid the taxes on the land since the 1974 conveyance.

The Private Road

¶ 11. The private road is located in Warren County. This piece of disputed real property is more particularly described by the chancellor as follows:

Commencing at a found iron stake on the westerly line of Freeman Road, said iron stake marking the most northeast corner of H.L. Logue Sr., and Ella Mae Logue 2.37 acre tract as described in Deed Book 928 at Page 278 of Warren County, Mississippi Land Records; from iron stake run thence South 83° 33' 50" East, 793.54 feet to an iron stake marking the southwest corner of a .67 acre tract conveyed by Grantor herein to William Daniel Ettinger and Dana Logue Ettinger by Deed recorded in Deed book 1052 at Page 234 of Warren County, Mississippi County Land Records; run thence South 74° 15' 17" East 60.15 feet to the centerline and point of beginning of a 20 foot easement providing ingress and egress to Freeman Road, a public paved road; from said point of beginning run along the center line of said 20 foot easement the following bearing and distances to wit:
Thence North 87° 08' 23" West, 75.12 feet; thence North 80° 57' 27" West, 71.54 feet; thence North 70° 07' 53" West, 95.51 feet; thence North 81° 25' 50" West, 56.94 feet; thence North 85° 04' 29" West, 49.37 feet; thence North 70° 25' 30" West 68.41 feet; thence North 67° 22' 49" West, 69.29 feet, thence North 73° 21' 18" West, 102.59 feet; thence North 75° 38' 41" West, 128.05 feet; thence South 76° 35' 40" West, 47 .35 feet, more or less, to the westerly right of way of Freeman Road, a public paved road and termination of said 20 foot easement. Said easement being situated in the Southwest Quarter of Section 4, the Southeast Quarter of Section 5, the North west Quarter of Section 10 and the Northeast Quarter of Section 20 Township 16 North, Range 4 East, Warren County, Mississippi.

¶ 12. The road had been owned by Addie Logue as part of a larger parcel. In 1965, Addie Logue conveyed a parcel of land to the Kittrells. The conveyed land surrounded and included the road. No reservation of easement was expressed in the deed. In 1976, Hugh Logue Jr., built a house on some different property that the only ingress to and egress from was the private road. Testimony was also presented that the Kittrells did not believe that the private road was part of their land. A contention was presented and apparently accepted by the chancellor that Addie Logue wanted to convey a plot of land north of the private road to the Kitt-rells which did not include the road. Addie Logue’s successor in interest, Beatrice Patterson, quitclaimed her interest in the road to the Logues in 1997. The house built by the Kittrells encroaches on the land of an unidentified landowner. The house is on the Kittrells’s land if the evidence that the Kittrells’s thought their property was north of the private road is accepted.

¶ 13. The Logues also presented testimony that the Logues had been the people primarily using and maintaining the road. The Kittrells presented testimony that they are the record title holder of the road, that others used and maintained the road, and the most the Logues should be entitled to is an easement. The Kittrells are the record title owners of the land.

LEGAL ANALYSIS

¶ 14. The Court follows a limited standard of review when addressing appeals from a chancery court. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). We shall not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or there was an application by the chancellor of an erroneous legal standard. Wright v. Roberts, 797 So.2d 992, 997(¶ 14) (Miss.2001); Mercier v. Mercier, 717 So.2d 304, 306(¶ 8) (Miss.1998); Goode v. Village of Woodgreen Homeowners Ass’n, 662 So.2d 1064, 1070-71 (Miss.1995); Herring Gas Co., Inc. v. Whiddon, 616 So.2d 892, 894 (Miss.1993); Perkins v. Thompson, 609 So.2d 390, 393 (Miss.1992); Bradford v. Williams, 797 So.2d 352, 354(¶ 5) (Miss.Ct. App.2001); Lee Hawkins Realty, Inc. v. Moss, 724 So.2d 1116, 1118(¶ 8) (Miss.Ct. App.1998). Great deference is given to the chancellor as both finder of fact and trier of law. If there are no specific findings of fact, the appellate court will assume that the trial court has made determinations of fact sufficient to support its judgment. Pace v. Owens, 511 So.2d 489, 492 (Miss.1987). The appellate court will also look to the evidence and determine whether or not the statement of facts justify the decree. Greenlee v. Mitchell, 607 So.2d 97, 105 (Miss.1992); Pace, 511 So.2d at 492.

¶ 15. To succeed on a claim of adverse possession, the claimant has the burden to prove each element by clear and convincing evidence. Rice v. Pritchard, 611 So.2d 869, 871 (Miss.1992); West v. Brewer, 579 So.2d 1261, 1262 (Miss.1991); Stallings v. Bailey, 558 So.2d 858, 860 (Miss.1990). Adverse possession requires the claimant to prove that her possession or occupancy was: (1) under claim of ownership; (2) actual and hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful. Rice, 611 So.2d at 871; Stallings, 558 So.2d at 860; Pieper v. Pontiff, 513 So.2d 591, 594 (Miss.1987); Johnson v. Black, 469 So.2d 88, 90 (Miss.1985); Bradford, 797 So.2d at 354(¶ 6); Hearn v. Shelton, 762 So.2d 792, 794-95(¶ 6) (Miss.Ct.App.2000); Simmons v. Cleveland, 749 So.2d 192, 196(¶ 13) (Miss.Ct.App.1999). These elements are based upon interpretation of Mississippi’s statutory adverse possession law. Miss Code Ann. § 15-1-13 (Rev.1995).

¶ 16. The Mississippi legislature enacted the adverse possession statute so as to resolve the problem of inattentive landowners who ignore their property over a long period of time. Clanton v. Hathorn, 600 So.2d 963, 966 (Miss.1992). Adverse possession is defined in Miss.Code Ann. § 15-1-13 (Rev.1995) as follows:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to persons under the disability of minority or unsoundness of mind the right to sue within ten (10) years after the removal of such disability, as provided in Section 15-1-7.

¶ 17. The Mississippi Supreme Court, in a description of the role of the adverse possessor, has agreed that:

[A]n adverse possessor “must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest”. Walter G. Robillard and Lane J. Bouman, A Treatise on the Law of Surveying and Boundaries, § 22.08 (5th ed.1987).

Blankinship v. Payton, 605 So.2d 817, 820 (Miss.1992).

1. WHETHER THE CHANCELLOR ERRED IN FINDING THAT THE LO-GUES PROVED ADVERSE POSSESSION OF THE .24 ACRE PARCEL BY CLEAR AND CONVINCING EVIDENCE

A. Under claim of ownership

¶ 18. It is undisputed that the Logues are not nor have ever been the record title holders to the .24 acre parcel. The Logues claimed their ownership based on the land being given as a gift from Archie Logue and evidenced by the improvements made on the land. A parol gift and holding of the land as owner is sufficient if actual color of title is not available. Davis v. Davis, 68 Miss. 478, 479, 10 So. 70, 71 (1891). Buford asserts that permission was all that was given to the Logues by Archie Logue. Both parties presented trial testimony as to whether a gift or permission was given by Archie Logue. The chancellor found enough credible evidence to support the Logues contention that they believed they owned the property, or at least in the alternative, acted as the true owners of the land.

¶ 19. Even if only permission was given, Archie Logue’s death in 1969 effectively ended any permission that may have been given to the Logues. Buford presented no evidence that there was permission from Archie Logue’s. heirs to allow the Logues to remain on the land. The chancellor found that from 1969 through at least 1979 the Logues continued to use the property. The Logues occupied the land without permission for seven years or under the belief they owned the land for nine years, plus an additional eight years of using the land for gardening and other uses. Whether or not the first two years were with permission of Archie Logue does not matter since additional time was required in either case. The chancellor made her decision based on a time period from 1969 through 1979, indicating that the chancellor chose not to include the first two years in the adverse possession time period.

¶ 20. Buford also presented testimony that Hugh Logue, Jr. admitted to not owning the land. The Logues countered by offering explanations of the statements. The chancellor accepted the Logues explanations over the contentions of Buford that the admissions defeated the Logues’s claim.

¶ 21. Additionally, Buford tried to introduce a videotape made in 1991 that purportedly shows Hugh Logue, Jr. admitting that he does not own the land. The tape was not offered at the trial but at a posttrial hearing. The chancellor properly denied the introduction of the tape at the posttrial hearing which was limited to matters concerning the private drive. It appears that the tape existed and was in the possession of Buford at the time of the trial. For some reason Buford chose to try and introduce the tape at the limited post-trial hearing instead of the trial. As with most areas of the law, a chancellor is granted wide discretion as to whether a litigant can reopen a case for additional testimony. Kelly v. Shoemake, 460 So.2d 811, 815 (Miss.1984). This Court can not say that the chancellor abused her discretion.

¶ 22. The last argument made by Buford is that the Logues did not pay any taxes nor claim the .24 acre parcel as a homestead. While it is true that paying the taxes on a parcel of land is evidence of whether or not a claim of ownership exists, it is not conclusive. Geoghegan v. Krauss, 228 Miss. 231, 240, 87 So.2d 461, 465 (1956). Payment of taxes alone will not ripen a defective possession into title. Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660, 661-62 (1914). The payment of taxes is one factor as to possession and whether an adverse possessor has paid property taxes on the land in controversy is not conclusive of the claim of ownership. Houston v. U.S. Gypsum Co., 652 F.2d 467, 474 (5th Cir.1981).

B. Actual possession

¶ 23. Buford argued that for a person to take title by adverse possession, the actual possession must be actual occupancy. The Logues ended their occupancy of the land in 1976. The Logues continued to use the land primarily as a garden for eight more years and also used the land for storage. A vegetable garden can be a type of land use to give notice to the actual owners of land that someone else is possessing their land. Stewart v. Graber, 754 So.2d 1281, 1284-85, (¶ 17) (Miss.Ct.App.1999). The Logues also maintained a fence on the property. A party claiming land by adverse possession who encloses the piece of property with a fence is a factor to be considered in determining if adverse possession occurred. Pieper, 513 So.2d at, 594-95; Cole v. Burleson, 375 So.2d 1046, 1048 (Miss.1979); Cook v. Mason, 160 Miss. 811, 134 So. 139 (1931) (fenced pasture land more convincing than unfenced pasture land); see also Snowden & McSweeny Co. v. Hanley, 195 Miss. 682, 686, 16 So.2d 24, 25 (1943) (“[T]he question in [adverse possession cases] is whether the inclosure, like other acts of possession, is sufficient to fly the flag over the land and put the true owner upon notice that his land is held under an adverse claim of ownership.”). The chancellor found that after the occupancy ended, the Logues maintained such control over the land as to amount to actual possession. A claimant giving permission to allow another to use the land is a factor weighing in favor of adverse possession.

C. Open, notorious, and visible

¶ 24. The Logues continued their possession of the property after their occupancy ended. The chancellor found that their occupancy followed by their use of the land for gardening and storage was sufficient to give notice to the true owners that the land was at risk for adverse possession. The land is located on a public road. The use by the Logues was easily seen by the true owners.

D. Continuous and uninterrupted for ten years

¶ 25. Mississippi statutorily requires a ten-year uninterrupted and continuous period for adverse possession. Miss.Code Ann. § 15-1-13 (Rev.1995). The Logues argued that their eight year use of the land for gardening and storage plus the time that they occupied the land was more than sufficient to satisfy the chancellor’s finding. It is true that mere sporadic, noncontinuous use is insufficient. Eastlawn Development Co. v. Wells, 311 So.2d 334, 337 (Miss.1975). The use by the Lo-gues was more than sporadic or intermittent.

E. Exclusive

¶ 26. Buford argued that during the time the land was used for gardening, the Logues did not use it exclusively. The Logues presented testimony that others were allowed to use the land by permission of the Logues. Buford presented testimony that from the time period from 1976 through 1984, many people used the parcel without permission of the Logues. The chancellor found the evidence presented by the Logues more credible. A claimant must exclude from the land all those except those she gives permission. Blankinship, 605 So.2d at 820. The chancellor ruled that the ten-year period had been satisfied by the Logues from 1969 through at least 1979.

F.Peaceful

¶ 27. At no point during the trial was evidence presented that an objection to the Logues presence on the property was made during the adverse possession period of 1969 through 1979. The chancellor rightfully found the possession to be peaceful.

Conclusion

¶ 28. Although conflicting evidence was presented, the chancellor made her decision based upon the facts presented at the trial. Upon a review of the record, we hold that there was sufficient credible evidence to support the chancellor’s ruling. The chancellor was able to determine that the elements of adverse possession had been met by clear and convincing evidence. As to the .24 acre tract, Chancellor Wise was not manifestly wrong, clearly erroneous, or applied an erroneous legal standard.

2. WHETHER THE CHANCELLOR ERRED IN FINDING THAT THE LO-GUES PROVED ADVERSE POSSESSION OF THE .73 ACRE PARCEL BY CLEAR AND CONVINCING EVIDENCE

A. Under claim of ownership

¶ 29. The chancellor accepted the contention presented by the Logues that they received a deed purporting to convey the entire parcel to them. The deed purports to convey the entire parcel. Buford presented testimony that the grantor was notorious for signing deeds for land that he did not own and that the Logues knew about the notoriety thus defeating any claim by the Logues of ownership. The chancellor chose to accept the evidence presented by the Logues over that presented by Buford. The Logues were “strangers to the title,” within the meaning of the case of Quotes v. Griffin, which held:

Where one or more of several coten-ants convey land by an instrument purporting to vest in the grantee the fee simple title to the entire property, and the grantee is not a cotenant at the time of the execution of the deed, and the grantee records his deed in the county where the land lies, and enters into possession asserting open and exclusive ownership thereof, the cotenants not participating in the conveyance are deemed to be ousted and on the termination of the statutory period, title by adverse possession becomes vested in the grantee. In order for such deed to constitute an ouster as aforesaid, the grantee must have had no interest whatever in the land prior to the execution of the deed, either as a cotenant by deed or as a cotenant by inheritance....

Quotes v. Griffin, 239 So.2d 803, 811 (Miss.1970) (emphasis supplied).

B. Actual possession

¶ 30. Buford also argued that the land was only prepped for occupancy and not actually occupied. As stated earlier, a claimant seeking title by adverse possession may possess the land by occupancy or use or a combination of both. The chancellor properly concluded that the Logues exercised sufficient control over the land to equal actual possession.

C. Open, notonous, and visible

¶ 31. Buford argued that because Elmer Barnes helped Hugh Logue, Jr. prepare the land, the possession must have been permissive and not open, notorious, and visible. The Logues argued and the chancellor held that the fact Elmer Barnes helped Hugh Logue, Jr. prepare the land, Elmer Barnes was put on notice of potential adverse possession by the Logues.

¶ 32. Buford correctly argued that for one cotenant to obtain title owned by the other cotenant, an ouster must have occurred. Many cases from the supreme court have held that under certain circumstances, a grantor may reclaim a part of his conveyed property by adverse possession against his grantee. Skelton v. Lewis, 453 So.2d 703, 706 (Miss.1984). The proof required to establish adverse possession in such a situation is far greater than the average adverse possession case. Skelton, 453 So.2d at 706. Our supreme court stated further:

[I]n any case where the grantor claims by adverse possession all or part of the property conveyed, the proof of actual notice of that possession by the grantor to the grantee should be stronger than in the normal adverse possession case and should be clear beyond a reasonable doubt. The evidence should reveal that the grantee has been ousted from the property he received under the conveyance.

Id. at 707.

¶ 33. The chancellor found that Elmer Barnes assisted Hugh Logue, Jr. in preparing the land to build a house. It is obvious that Elmer Barnes knew that the Logues were acting as the true owners.

¶ 34. An ouster in Mississippi requires (1) an execution of a deed purporting to convey fee simple title to the claimant, (2) recording of the deed, and (3) entry of the grantee claiming the entire interest. Quotes, 239 So.2d at 812. The chancellor evaluated these elements and held that there was a deed purporting to convey the entire parcel to the Logues, a stipulation that the deed was recorded, and that the Logues acted as true owners. At no point during the trial was evidence presented that an objection to the presence of the Logues or any of their predecessors on the property was made during the adverse possession period.

D. Continuous and uninterrupted for ten years

¶ 35. The chancellor found that the Lo-gues had possessed the land for more than ten years. Buford’s only argument was that it had not been ten years against Buford. The chancellor found that Buford had notice of the presence of the Logues.

E. Exclusive

¶ 36. Buford presented testimony that the Kittrells and their son had used the property to park trucks. The Logues presented evidence that the dates claimed by Buford were inaccurate. The chancellor carefully weighed the evidence and ruled that the Logues had exclusivity over the land for a ten year period.

F. Peaceful

¶ 37. At no point during the trial was evidence presented that an objection to the presence of the Logues was made during the adverse possession period.

Conclusion

¶ 38. Although conflicting evidence was presented, the chancellor made her decision based upon the facts presented at the trial. Upon a review of the record, we hold that there was sufficient credible evidence to support the chancellor’s ruling. An ouster occurred and the land was adversely possessed. The chancellor was able to determine that the elements of adverse possession had been met by clear and convincing evidence. As to the .73 acre tract Chancellor Wise was not manifestly wrong, clearly erroneous, or applied an erroneous legal standard.

3. WHETHER THE CHANCELLOR ERRED IN FINDING THAT THE LO-GUES WERE ENTITLED TO FEE SIMPLE TITLE BY ADVERSE POSSESSION OF THE PRIVATE ROAD RATHER THAN AN EASEMENT.

¶ 39. The standard and burden of proof to establish a prescriptive easement is the same as a claim of adverse possession of land. Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1153 (Miss.1992). After examining the findings of the chancellor, the Court holds that the chancellor applied the wrong legal standard by finding that adverse possession had occurred. The chancellor should have only granted a prescriptive easement in the private road to the Logues.

A Under claim of ownership

¶ 40. The Kittrells make an interesting point about the successor in interest of a grantor that is trying to claim title by adverse possession. The Logues are successors in interest of Addie Logue and Beatrice Patterson. Testimony was presented and accepted by the chancellor that Addie Logue only wanted to convey the portion of land north of the private road and that the Kittrells thought that their land was north of the road. The chancellor found that the Logues had as successors a claim of ownership.

B. Actual possession

¶ 41. The Logues presented testimony that they and their predecessors were the ones who used and maintained the private drive. The chancellor accepted this testimony. As stated earlier, actual possession can be use of the land, not just occupancy.

C. Open, notorious, and visible

¶ 42. Testimony was presented by the Logues that they and their predecessors were the primary ones to use and maintain the road. The Kittrells presented testimony that Beatrice Patterson’s husband asked the Kittrells for permission to pave the road. The Logues presented testimony, and the Kittrells do not deny, that Hugh Logue, Jr. and Mr. Patterson financed the project. The chancellor accepted the Logues’s version over the Kitt-rells’s.

D. Continuous and uninterrupted for ten years

¶ 43. Although the Logues were granted the quitclaim deed in 1997, the period of adverse possession began running earlier for their predecessors in interest. The Kittrells argued that since the Logues did not receive the quitclaim deed until 1997, the time period did not start to run until 1997. The adverse possession of successive occupants in privity with each other may be combined to reach the statutory period, a concept generally known as “tacking.” Rutland v. Stewart, 630 So.2d 996, 999 (Miss.1994). The chancellor obviously found that the time periods of the predecessors were tacked onto the time period of the Logués. Mississippi law allows tacking of one adverse possession to another as long as there is privity of possession existing between the predecessor and the claimant. Walters v. Rogers, 222 Miss. 182, 75 So.2d 461, 462 (1954). Privity may be established or created by conveyance, agreement, or understanding which in fact transfers possession. Walters, 222 Miss. at 182, 75 So.2d at 462.

E. Exclusive

¶ 44. The Kittrells claimed that they used the private road to turn their trucks around. The chancellor found that this use by the Kittrells did not occur until after ownership by adverse possession had matured in favor of the predecessors of the Logues. The - chancellor held a post trial hearing and granted the Kittrells an easement to continue to turn trucks around on the private road subject to the Kittrells making improvements to the road to prevent damages from the use of the road by the Kittrells.

F. Peaceful

¶ 45. At no point during the trial was evidence presented that an objection to the presence of the Logues or any of their predecessors on the property was made during the adverse possession period.

Conclusion

¶ 46. Because the road was surrounded and encompassed by the land owned by the Kittrells, all that the Logues were entitled to was a prescriptive easement. Because the elements are the same and require the same standard of proof, we reverse and render the decision of the chancellor as to the private road. Ownership is vested in the Kittrells and a prescriptive easement vested in the Logues.

CONCLUSION

¶ 47. This Court does not address the theory that notice of an adverse possessor negates title taken by a person. The chancellor used this theory, based on Bank of Mississippi v. Hollingsworth, 609 So.2d 422 (Miss.1992), solely as an alternative to award the Logues title by adverse possession to the .24 acre and the .73 acre parcel of land. This Court agrees with the chan-eellor that there was adverse possession to these parcels.

¶ 48. THE JUDGMENT OF THE CHANCERY COURT OF WARREN COUNTY IS AFFIRMED AS TO THE .24 AND .73 ACRE PARCELS. THE JUDGMENT IS REVERSED AND RENDERED AS TO THE PRIVATE ROAD WITH TITLE BEING GRANTED IN THE KITTRELLS AND A PRESCRIPTIVE EASEMENT BEING GRANTED IN THE LOGUES. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

McMILLIN, C.J., KING AND SOUTHWICK, P JJ., BRIDGES, THOMAS, LEE, AND CHANDLER, JJ., CONCUR.

IRVING AND BRANTLEY, JJ., NOT PARTICIPATING.


author: CHANDLER, J.,

text:
    Arthur BROOKS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01916-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2002.

      Arthur Brooks (Pro Se), attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. Arthur Brooks was charged with two counts of sale of cocaine in separate indictments. Brooks was convicted of both counts, and filed a motion for post-conviction relief (PCR) in the Circuit Court of Humphreys County. The motion was denied on November 15, 2001. Brooks has appealed pro se from the denial and raises four assignments of error. First, Brooks claims he was denied due process because he was never arraigned and his right to a speedy trial was violated. Second, Brooks claims he was defectively indicted because the charges were contained in two separate indictments rather than in one multi-count indictment. Third, Brooks argues he has suffered double jeopardy because the charges arose from a common scheme. Finally, Brooks claims ineffective assistance of counsel on the ground that his attorney failed to object to the allegedly defective indictments.

¶ 2. The State contends that this appeal must be dismissed because Brooks failed to supply this Court with an adequate record to show the trial court committed reversible error.

FACTS

¶ 3. The trial court’s order is the sole document in the record containing relevant factual information. Brooks was indicted for sale of cocaine in violation of Miss.Code Ann. § 41-29-139(a)(l) (Rev.2001). Then, on July 31, 1998, he was indicted on a second charge of sale of cocaine in violation of section 41-29-142(1) (Rev.2001). On November 12, 1998, Brooks was found guilty on the first charge and sentenced to serve six years in the custody of the Mississippi Department of Corrections. On March 23, 2000, Brooks entered a guilty plea on the second charge and was sentenced to serve five years to run consecutively with the six-year sentence.

¶ 4. In the PCR motion, Brooks prayed for relief from his conviction in the second charge and made the same assignments of error he has raised in this appeal. The trial court held that Brooks’ arguments about due process, defective indictments, and double jeopardy were procedurally barred because they were available at the plea hearing and could not be raised for the first time on PCR. The trial court reviewed the ineffective assistance of counsel claim and found it without merit under the two-part test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

STANDARD OF REVIEW

¶ 5. In review of the trial court’s denial of a motion for post-conviction relief, this Court will not disturb fact-findings of the lower court unless they are clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). If questions of law are raised, the standard of review is de novo. Id.

LAW AND ANALYSIS

¶6. The record on appeal consists of eleven pages, including the docket sheet, notice of appeal, two letters from the Supreme Court Clerk, the trial court’s order and amended order, Brooks’ infor-ma pauperis request and order, and certificate of compliance. Brooks makes various allegations in his short and poorly constructed brief, but has supplied this Court with a record inadequate to discern whether these allegations have merit. This Court must base decisions only on facts shown in the record. “Facts asserted to exist must and ought to be definitely proved and placed before the court by a record, certified by law; otherwise, we cannot know them.” Mason v. State, 440 So.2d 318, 319 (Miss.1983). “When no proper record is submitted, this Court will not place the trial court in error based merely upon assertions in appellant’s brief.” Henderson v. State, 783 So.2d 769, 771 (¶ 4) (Miss.Ct.App.2001).

¶ 7. Brooks’ first argument is that he was denied due process because he was convicted without an arraignment and not brought to trial within 270 days after indictment. Statutory speedy trial violations are measured from the date of arraignment. Miss.Code Ann. § 99-17-1 (Rev. 2000). The record Brooks submitted contains no evidence of whether he was arraigned or when, or the number of days he waited after arrest for the plea hearing. Brooks’ failure to provide this information prevents this Court from determining whether a 270-day violation occurred.

¶ 8. Notwithstanding the deficient record, the trial court’s ruling was correct. Brooks could have raised the issue at the plea hearing and failed to do so; therefore, the issue is proeedurally barred. Miss.Code Ann. § 99-39-21(1) (Supp.2002). Brooks claims to have raised the speedy trial issue orally at the plea hearing, but the trial court correctly found that Brooks’ guilty plea waived the issue on PCR. A defendant’s valid guilty plea waives all nonjurisdietional rights or defects, including the right to a speedy trial. Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991).

¶ 9. Brooks’ second argument is that it was error to charge him in separate indictments. This argument was not raised at the plea hearing and is procedurally barred. Miss.Code Ann. § 99-39-21(1) (Supp.2002). Notwithstanding the procedural bar, the issue is without merit, as shown below in the discussion of ineffective assistance of counsel.

¶ 10. Brooks’ third argument is that he has suffered double jeopardy because he was separately prosecuted for acts involving a common plan or scheme. This argument is proeedurally barred. Miss.Code Ann. § 99-39-21(1) (Supp.2002). “Failure to address a claim of double jeopardy at trial concludes that issue, it cannot then be raised initially in a motion for post-conviction relief.” Henley v. State, 749 So.2d 246, 249 (¶ 11) (Miss.Ct.App.1999) (citing Mann v. State, 490 So.2d 910, 911 (Miss.1986)). Notwithstanding the bar, the issue is without merit. “Mississippi has long recognized that separate offenses, though committed under a common nucleus of operative fact, does not present a legal impediment to multiple prosecutions under the double jeopardy clause of both the federal and the state constitutions.” Henley, 749 So.2d at 249 (¶ 12) (citing Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) and Lee v. State, 469 So.2d 1225, 1229 (Miss.1985)).

¶ 11. Brooks’ final issue is that he received ineffective assistance of counsel because his trial counsel did not object to the separate indictments. Brooks has not provided this Court with a record indicating counsel’s failure to object. Even if such a record was before this Court, the claim is without merit.

¶ 12. Ineffective assistance of counsel is judged by the standard from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, the defendant must show 1) that counsel’s performance was deficient, and 2) that the deficiency prejudiced the defendant. Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985). There is a strong but rebuttable presumption that counsel’s performance was reasonable. Id. at 969. To overcome the presumption, the defendant must show that but for counsel’s deficiency, a different result would have occurred. Id. at 968. The reviewing court must examine the totality of the circumstances. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990).

¶ 13. Brooks argues the cocaine sales were part of a common scheme; therefore, he should have been charged in a multi-count indictment. Brooks is incorrect. Separate indictments are the usual practice in Mississippi, while multi-count indictments are exceptional. Mississippi Code Annotated § 99-7-2(1) (Rev.2000) provides the three exceptional situations in which a multi-count indictment may be brought: “(1) the offenses are based on the same act or transaction; or (2) the offenses are based on two (2) or more acts or transactions connected together; or (3) the offenses are based on two (2) or more acts or transactions constituting parts of a common scheme or plan.” Id. A basic tenet of statutory construction is that the word “shall” is a mandatory directive, and the word “may” is discretionary in nature. American Sand and Gravel Co. v. Tatum, 620 So.2d 557, 563 (Miss.1993); Planters Bank & Trust Co. v. Sklar, 555 So.2d 1024, 1027 (Miss.1990). In this case, the State could have brought a multi-count indictment but was not required to do so.

¶ 14. Even if Brooks had been charged in a multi-count indictment, he could have received a separate conviction and sentence for each charge. Under Miss.Code Ann. § 99-7-2(3) (Rev.2000), “when a defendant is convicted of two (2) or more offenses charged in separate counts of an indictment, the court shall impose separate sentences for each such conviction.” Id. See Williams v. State, 757 So.2d 953, 958 (¶ 22) (Miss.Ct.App.1999). Under these circumstances, counsel’s failure to object to the separate indictments was wholly reasonable. Brooks suffered no prejudice because he was eligible for identical sentences whether he was indicted separately or singly. Thus, Brooks has failed to demonstrate ineffective assistance of counsel under Strickland.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF HUMPHREYS COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO HUMPHREYS COUNTY.

McMILLIN, C.J, KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND BRANTLEY, JJ., CONCUR.


author: BRIDGES, J.,

text:
    Larry J. MARTIN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00072-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2002.

      Wayne Dowdy; Pro-Se On Ineffectiveness of Counsel Claim, attorney for appellant.
    Office of the Attorney General by: Scott Stuart, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   BRIDGES, J.,

for the court.

¶ 1. The grand jury of Pike County indicted Larry Martin on one count of unlawful sale of cocaine. The Circuit Court of Pike County convicted Martin of the charge and sentenced him to fourteen years in the custody of MDOC, and two years of post-release supervision. Martin was fined $5,000, and ordered to pay restitution of $220, as well as the court costs. Martin appealed.

STATEMENT OF ISSUES

I. DID THE COURT ERR IN GRANTING THE STATE’S MOTION TO AMEND THE INDICTMENT?

II. DID THE COURT ERR IN DENYING MARTIN’S MOTION FOR A CONTINUANCE?

III. DID MARTIN RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?

IV. WAS MARTIN DENIED DUE PROCESS OF LAW?

FACTS

¶ 2. Larry Martin met with Scott Frazier, who was working undercover for the Mississippi Bureau of Narcotics, at a convenience store in McComb, Mississippi, ostensibly to recover a $200 debt owed him by Frazier’s aunt, Marc Ann Frazier. Earlier that day, Marc Ann Frazier had called Martin and told him to meet Frazier at the TG Mini Mart in McComb. Scott Frazier told Martin to drive to Industrial Park Road in McComb, where Frazier approached Martin’s car and gave him $200. Martin gave Frazier a container wherein was 3.5 grams of crack cocaine. Together with Martin in his car was his uncle, L.C. Tobias, a resident of Jackson.

ANALYSIS

I. DID THE COURT ERR IN GRANTING THE STATE’S MOTION TO AMEND THE INDICTMENT?

¶ 3. The State is permitted to amend the indictment only to the extent that the emendation is limited to the form of the indictment, and not the substance of the charge. URCCC 7.09. An amendment is one of form, and not of substance if the defense and evidence “remain unhindered after the indictment has been amended.” Chandler v. State, 789 So.2d 109, 111(¶ 4) (Miss.Ct.App.2001).

¶ 4. The State had originally identified the wrong location for the sale of cocaine, placing it near the Mormon church in McComb, rather than its correct locale, near the Sweet Home Missionary Baptist Church. Martin argues that since the incorrect church was identified in the indictment, the emendation on the eve of trial was one of substance. However, Martin’s defense was not based on where the sale of cocaine took place; Martin in fact conceded the meeting with Scott Frazier. Martin’s sole defense was that there was no sale of cocaine, but satisfaction of a debt taking place at the meeting. Martin claimed at trial that he was meeting Frazier so that Frazier could satisfy a debt owed to Martin by Frazier’s aunt, Marc Ann Frazier.

¶ 5. Significantly, the amendment to the indictment does not change the nature of the crime Martin is charged with. It merely restates the portion of the indictment that includes the sentence enhancement for sale of cocaine within 1500 feet of a church. The crime Martin was charged with remained the unlawful sale of cocaine for a sum of $200, on the same day. Martin fails to name any witnesses that he would have called to his defense in his brief; Martin also fails to describe the testimony he expected them to elucidate. Finally, unless Martin on more than one occasion on December 28, 1998, in Pike County met with Scott Frazier to complete a transaction of any kind involving the discrete sum of $200, it is difficult for this Court to understand how he could be confused about the charges brought against him, since none of these facts are contested in Martin’s brief.

¶ 6. Additionally, Martin does not explain how his defense was prejudiced by the emendation. His brief on appeal does not explain the changes, if any, that his defense suffered from the change in the indictment. The emendation of the indictment went not to the substance of the indictment, but to its form, as is permissible. Consequently, we find that this assignment of error is meritless.

II. ' DID THE COURT ERR IN DENYING MARTIN’S MOTION FOR A CONTINUANCE?

¶ 7. Motions for a continuance are within the sound discretion of the trial court. Hardiman v. State, 776 So.2d 723, 727(¶ 19) (Miss.Ct.App.2000). The judgment of the trial court denying a motion for a continuance will not be reversed except for an abuse of discretion. Id. Martin contends that he was denied the right to present witnesses in his defense, due to the amendment of the indictment against him. However, Martin did not present any evidence of the prospective witnesses’ testimony, either at the motion hearing or on appeal. Absent this evidence this Court must affirm the judgment of the court below denying a continuance. Id.

III. DID MARTIN RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 8. Martin alleges that his attorney at trial and for this appeal did not represent him effectively. All claims of ineffective assistance of counsel must pass a two-part test; first, Martin must demonstrate that counsel’s representation was defective; second, Martin must be able to show that defect was so prejudicial that he did not receive a fair trial. Moody v. State, 644 So.2d 451, 456 (Miss.1994). Martin’s claim is that counsel failed to secure a proper record of voir dire as part of the appeal.

¶ 9. However, Martin raises no colorable claim of judicial error in the voir dire process. Martin states that the jury was impaneled and in the courtroom during Martin’s motion for a continuance. In fact, the motion was heard in chambers prior to the impaneling of the jury. Martin also alleges that his attorney did not properly designate the record. The record belies this, as counsel’s designation of the record on appeal contains the following phrase: “all proceedings, oral and documentary.”

¶ 10. Martin’s claims patently fail the first part of the test for claims of ineffective assistance of counsel, because they do not demonstrate a defective performance, much less any prejudice that could arise from such a performance. Accordingly, we find that Martin received effective assistance of counsel.

IV.WAS MARTIN DENIED DUE PROCESS OF LAW?

¶ 11. Martin raises two due process claims: that his attorney failed to secure an appeal bond on a bondable offense, and that the jury selection process was not adequately reflected in the record. We will deal with each claim separately.

¶ 12. Martin assigns as error the failure of his attorney to file a motion for an appeal bond. Martin, however, made a pro se motion for an appeal bond before the time for an appeal to be filed had run. Further, Martin provides no evidence of counsel’s resistance to a motion for an appeal bond. Additionally, Martin’s attorney filed a brief on appeal that is the work of a zealous advocate.

¶ 13. Martin also assigns as error counsel’s failure to designate the actual selection of the petit jury from the jury pool as part of the appeal record as a violation of due process. We are mystified as to the source of this novel claim and Martin’s thankless raillery against his own attorney; however, we shall examine it for the sake of completeness. Martin claims that he was denied due process in jury selection, because a juror who stated that he could not be impartial, Robert Sanders, was struck for cause, and the trial record on appeal did not reflect this.

¶ 14. However, Martin raises no color-able claims regarding the jury, and per Martin’s motion to supplement the record, the Mississippi Supreme Court ordered that the record be supplemented by the complete jury selection process. The supplemented record clearly indicates that Sanders, as well as several other potential jurors, were struck for cause. We find that there was no violation of due process.

CONCLUSION

¶ 15. For the foregoing reasons, we affirm the judgment of the Pike County Circuit Court.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF UNLAWFUL SALE OF COCAINE WITHIN 1,500 FEET OF A CHURCH AND SENTENCE OF SIXTEEN YEARS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, FOURTEEN YEARS TO SERVE AND TWO YEARS OF POST RELEASE SUPERVISION, FINE OF $5,000, AND RESTITUTION IN THE AMOUNT OF $220 TO THE MISSISSIPPI BUREAU OF NARCOTICS IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: KING, P.J.,

text:
    In the Matter of the ESTATE OF Shirley Wright VOLMER: Joseph K. Volmer, Executor, Appellant v. John S. VOLMER and Eleanor J. Volmer Patterson, Appellees.
    No. 2001-CA-01110-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2002.

      Joe Morgan Wilson, Sanatobia, for appellant.
    George McFall, Southaven, William Bolton Seale, Memphis, TN, for appellee.
    Before KING, P.J., BRIDGES AND LEE, JJ.
   KING, P.J.,

for the Court:

¶ 1. The will of Shirley M. Volmer was contested and successfully set aside in the Chancery Court of DeSoto County. The proponent of the will, Joseph K. Volmer, appeals. Finding an absence of abuse of the chancery court’s discretion, we affirm the chancellor’s decision.

Facts

¶ 2. In February 1999, Mrs. Volmer executed a will devising her property among her three living children, Joseph K. Vol-mer, John A. Volmer, and Eleanor Volmer Patterson. Her husband and a son, William T. Volmer, predeceased her. Attorney Kevin O’Brien drafted the will Mrs. Volmer executed. In late May, 1999, Joseph Volmer contacted his mother’s attorney, Kevin O’Brien, and informed him of his mother’s desire to modify her February 1999 will. Specifically, Joseph Volmer informed O’Brien that his mother wanted to eliminate the provision of her current will which left a life estate in her home to her daughter Eleanor Volmer Patterson. O’Brien testified that he prepared the revision but did not personally speak with Mrs. Volmer about it.

¶ 3. After preparing the new will, O’Brien gave the draft will to Joseph Vol-mer along with a letter of instruction for its execution. In June 1999, Ms. Volmer was hospitalized and diagnosed with pancreatic cancer at a terminal stage. Joseph Volmer made the arrangements for execution of the will by coordinating the presence of witnesses and a notary. The will was executed in the hospital on June 18, 1999. She passed away on July 20, 1999.

¶ 4. Joseph Volmer, as executor of his mother’s estate, submitted the new will for probate. His brother and sister initiated an action contesting the will on the grounds of undue influence and a lack of testamentary capacity. The chancery court set aside the will on the grounds of undue influence, and held that the matter of testamentary capacity need not be addressed because of its ruling on undue influence.

Issues

¶ 5. Joseph Volmer raises the following issues in this appeal:

1. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION IN HAVING THE APPELLANT REMOVED FROM THE COURT DURING THE PROCEEDINGS INVOLVED IN THIS MATTER.
2. WHETHER THE CHANCELLOR MADE AN ERROR OF LAW IN FINDING A PRESUMPTION OF UNDUE INFLUENCE PRIOR TO FINDING THAT A CONFIDENTIAL RELATIONSHIPS EXISTED BETWEEN THE APPELLANT AND THE DECEDENT.
3. WHETHER THE CHANCELLOR ERRED IN OVERSTATING FACTS NOT IN EVIDENCE AND IGNORING CERTAIN FACTS IN EVIDENCE.

Resolution of the Issues

1. Removal from the courtroom

¶ 6. Joseph Volmer was removed from the courtroom on instructions by the chancellor because of unruly conduct. The chancellor admonished Joseph Volmer about certain conduct which was disruptive to the court proceedings, and requested that he discontinue that behavior. With the second admonition, the chancellor warned Joseph Volmer that should he persist in that conduct, he would be removed from the courtroom. Joseph Volmer continued his behavior and was escorted out of the courtroom by the bailiff. In ordering Joseph Volmer removed from the courtroom the chancellor stated

I have twice warned you before this time. You have sat there and you have laughed twice while this witness is testifying. I’m not going to permit you to interrupt or intimidate a witness. I’m going to ask the bailiff to take you and sit you back in that courtroom back there and remove you from these proceedings until such time as I determine that you can come back and behave.

When Volmer’s attorney was cross-examining John Volmer, one of the Appellees, the chancellor paused in the proceedings to give Joseph Volmer’s attorney the opportunity to consult with him in order that counsel could effectively cross-examine the witness. Counsel consulted with Joseph Volmer and returned to cross-examine the witness John Volmer. Joseph Volmer now claims that his expulsion from the courtroom prevented effective cross-examination of John Volmer, and thereby prejudiced his case. Joseph Volmer suggests that his presence was essential in the courtroom, so that as he heard the testimony, he could suggest questions to be asked of the witness.

¶ 7. We have reviewed the record regarding Joseph Volmer’s instances of misconduct cited by the chancellor and find no prejudice occurred as a result of his removal from the courtroom. The chancellor has the authority to maintain proper decorum in his courtroom. Unif. Ch. Ct. R. 1.01. We review the exercise of that authority under an abuse of discretion standard. McNeil v. Hester, 753 So.2d 1057 (¶ 21) (Miss.2000). Having been twice warned that his remarks, gestures and laughter during the testimony were improper, Joseph Volmer was well informed of what actions were required, if he were to remain in the courtroom. He deliberately ignored the chancellor’s directives, and after an appropriate warning was removed from the courtroom. We cannot say that the chancellor abused his discretion in doing so.

¶ 8. Notwithstanding Joseph Volmer’s disruptive behavior, the chancellor paused in the proceeding to afford the opportunity for consultation between Joseph Volmer and his attorney before cross-examination of opposing witnesses. Given Joseph Vol-mer’s intentional disruptive behavior in the courtroom and the chancellor’s efforts at assuring that trial would proceed with Joseph Volmer’s input through consultation with his counsel, this Court finds no abuse of the chancellor’s discretion.

2. Confidential relationship

¶ 9. Joseph Volmer argues on appeal that the chancellor erred in failing to find a confidential relationship existed between Joseph Volmer and his mother, Shirley Volmer, before deciding that Joseph Vol-mer exerted undue influence over his mother and therefore setting aside the will.

¶ 10. A chancellor’s findings of fact will not be disturbed unless they are manifestly wrong or clearly erroneous, or where it is determined that the chancellor applied an erroneous legal standard. Tinnin v. First United Bank, 570 So.2d 1193, 1194 (Miss.1990). If the chancellor’s findings are supported by substantial, credible evidence in the record, this Court will not reverse. Id.

¶ 11. Here, Joseph Volmer challenges the chancellor’s failure to make a specific finding that a confidential relationship existed before moving on the matter of whether the presumption of undue influence applied. While the chancellor did not, in his opinion, use the words “confidential relationship,” the chancellor did state:

A presumption of undue influence arises where a beneficiary actively participates in the procurement, preparation or execution of the will. Croft. v. Alder, 237 Miss. 713, 115 So.2d 683 (1959). In the case at bar, there can be no doubt with respect to the will in question, the beneficiary, Joseph K. Volmer, took any and all steps necessary for the procurement and execution of the will. There is no evidence whatsoever that the ultimate testatrix participated in anything other than the signing of the will. The arrangements for the drafting of the will, the conversations with counsel, the delivery of the prepared document to the testatrix, the procurement of witnesses, including a notary, and the safekeeping of the document following its execution were all the product of the beneficiary, Joseph K. Volmer.

¶ 12. Mississippi case law provides that the existence of a confidential or fiduciary relationship gives rise to a presumption of undue influence. Croft v. Alder, 237 Miss. 713, 725, 115 So.2d 683, 687 (1959). It is part of the will contestant’s case, and it is the burden of the contestant to establish the existence of a confidential relationship between the testator and the beneficiary. Norris v. Norris, 498 So.2d 809, 813 (Miss.1986).

¶ 13. There can be no doubt but that a confidential relationship must be established, before the presumption of undue influence arises, and is required to be rebutted by the will’s proponent. Murray v. Laird, 446 So.2d 575, 578 (Miss.1984).

¶ 14. Consequently, we find here that the chancellor erred in failing to make a determination that a confidential relationship existed between Joseph Volmer and his mother. However, we hold it to be harmless error, because there was substantial evidence in the record to support a finding that a confidential relationship did indeed exist between Joseph Volmer and his mother. We note that while the chancellor did not clearly make such a finding, it is obvious from the chancellor’s opinion that he believed as much.

¶ 15. Elements in determining the existence of a confidential relationship between testator and beneficiary are:

(I) Whether one person has to be taken care of by others, (2) Whether one person maintains a close relationship with another, (3) Whether one person is provided transportation and has their medical care provided for by another, (4) Whether one person maintains joint accounts with another, (5) Whether one is physically or mentally weak, (6) Whether one is of advanced age or poor health, and (7) Whether there exists power of attorney between one and another.

Estate of Dabney, 740 So.2d 915, 919 (¶ 12) (Miss.1999) (citations omitted). “Suspicious circumstances surrounding the creation of the will also raise the presumption of undue influence.” Id. at (¶ 21).

¶ 16. The record makes it abundantly clear that Mrs. Volmer was of advanced age and in poor health when she executed the June 1999 will. Her primary care physicians testified as to her poor health and that she was influenced by prescription medications which affected her ability to reason at or near the time she executed the June 1999 will. The record reflects that Joseph Volmer had joint ownership of his mother’s checking account. In addition, he held a power of attorney in the event of her death. Joseph Volmer testified that from November 1998 until February 1999, he “exclusively” visited with his mother, indicating that she had no contact with his brother John or his sister Eleanor Patterson during that time. These things support the existence of a confidential relationship ■ between Joseph Volmer and his mother.

¶ 17. Alternatively, Joseph Vol-mer argues that in the event that this Court determines that a confidential relationship existed, he met his burden in overcoming the presumption of undue influence. As such, he maintains that the chancellor’s ruling on undue influence was wrong.

¶ 18. To overcome the presumption of undue influence in a case such as this, the proponent of the will must show:

1. The beneficiaries must have acted in good faith.
a. Who initiated the procurement, of a will?
b. Where was the will executed and in whose presence?
c. What consideration was paid?
d. Who paid the consideration?
e. Was there secrecy or openness in the execution?
2. The testatrix must have had full knowledge and deliberation in the execution.
a. Was the testatrix aware of her total assets and their general value?
b. Did the testatrix understand who her natural inheritors were?
c. Did the testatrix understand how the change would legally effect [sic] pri- or wills?
d. Did the testatrix know that non-relative beneficiaries would be included?
e. Did the testatrix know who controlled her finances and by what method?
1. How dependent is the testatrix on those handling her finances?
2. How susceptible is she to influence by those handling her finances?
3. The testatrix must have exhibited independent consent and action.

In Re Last Will and Testament and Estate of Smith, 722 So.2d 606 (¶ 22) (Miss. 1998). The chancellor found that Joseph Volmer had not overcome the presumption of undue influence. The chancellor determined that (1) there was a lack of good faith on the part of Joseph Volmer, (2) Joseph Volmer initiated the procurement of the will, (8) he was present when the will was executed, (4) he paid consideration for the will, (5) Mrs. Volmer was using a number of medications, (6) because of the medications and her physical illness she was in a “seriously weakened state,” (7) there was no independent evidence that Mrs. Volmer had any knowledge of her actions or the consequences of those actions in executing a new will, (8) Mrs. Volmer had no independent involvement in the preparation of the June 1999 will, and (9) that her consent to execute the will was directed by Joseph Volmer. As such, the chancellor found that evidence to overcome the presumption of undue influence fell “woefully short.” The chancellor also stated:

The evidence before the Court, particularly the demeanor of the witness and beneficiary, Joseph K. Volmer, as portrayed during this court proceeding, conclusively convinces this Court that the actions of the testatrix, Shirley Vol-mer, in executing the will of June 18, 1999, were the derivative product of an overbearing son determined for events to be as he desired them.

¶ 19. Having reviewed the record, we find that there was sufficient evidence to support that a confidential relationship existed between Joseph Volmer and his mother, and the chancellor’s ruling of undue influence. Our standard of review requires that we affirm the chancellor in the absence of manifest error, abuse of discretion or an error of law. Finding none of these occurred here, we affirm the chancellor’s ruling in setting aside the June 1999 will.

3. Overstating and ignoring facts

¶ 20. In this last assignment of error, Joseph Volmer maintains that the chancellor committed reversible error when he “overstated” certain facts and ignored others as evidenced by his opinion. In particular, Joseph Volmer challenges the chancellor’s opinion (1) that Mrs. Volmer’s health plummeted after February 1999 until her death in July of that year; (2) that a lack of good faith was shown on the part of Joseph Volmer; (3) that Joseph Volmer was present in the room at the time the contested will was executed; and (4) that Mrs. Volmer did not discuss the contents of the contested will with anyone other than Joseph Volmer. The Appellant contends that evidence shows that Mrs. Volmer’s health did not “plummet” after February 1999 as the chancellor found; rather, Joseph Volmer maintains that Mrs. Volmer’s health did not begin to decline until she was hospitalized and diagnosed with pancreatic cancer. Appellant Volmer also asserts that there is no evidence that he exhibited a lack of good faith. Likewise, Joseph Volmer states that he was not present in the room at the time his mother executed the new will, contrary to testimony elicited at trial. Finally, Joseph Volmer points out that there was some testimony that the notary assisting in the execution of the will obtained information independently from Mrs. Volmer prior to the signing of the will.

¶ 21. The matters raised by Joseph Volmer are questions of fact to be resolved by the trier of fact. Mississippi State Tax Com’n v. Oscar E. Austin Trust, 719 So.2d 1172 (¶ 13) (Miss.1998). When considering the decisions of a chancellor on appeal, this Court has a limited standard of review. McNeil v. Hester, 753 So.2d 1057 (¶ 21) (Miss.2000). “The chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility of witnesses and the weight of their testimony.” Fisher v. Fisher, 111 So.2d 364(¶ 8) (Miss.2000). The chancellor is the fact-finder and is charged with the obligation of resolving disputes between the parties and likewise is the sole arbiter of the credibility of the witnessés. Murphy v. Murphy, 631 So.2d 812, 815 (Miss.1994). Where the record contains substantial credible evidence to support the chancellor’s findings, we will defer to them. Suess v. Suess, 718 So.2d 1126(¶ 15) (Miss.Ct.App.1998).

• ¶ 22. The record before this Court contains substantial and credible evidence upon which the chancellor could make these findings. There was conflicting testimony on these matters. As fact finder, the chancellor was charged with the duty of weighing the evidence and detennining the credibility of the witnesses. The chancellor was within his discretion in deciding each of these matters and we find no manifest error on the part of the chancellor. Accordingly, we affirm.

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

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

IRVING, J., NOT PARTICIPATING.


text:
    Issacc L. FALCONER a/k/a Issacc Leaudreau Falconer, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01835-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2002.

      Issacc L. Falconer (pro se), attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Issacc Falconer pled guilty to six counts of sale of cocaine. The Circuit Court of Harrison County sentenced Falconer to thirty years on each count to run concurrently in the custody of MDOC, with ten years suspended, and five years’ probation. Falconer moved for post-conviction relief, and the court dismissed his motion as manifestly without merit. The court granted Falconer leave to file an out-of-time appeal in forma pauperis, and he did.

STATEMENT OF THE ISSUE

I. DID FALCONER RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?

II. DOES FALCONER’S SENTENCE CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT?

ANALYSIS

I. DID FALCONER RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 2. The court below dismissed Falconer’s motion for post-conviction relief as statutorily deficient, consequently, as Falconer presents no evidence of ineffective assistance of counsel other than the fact that the plea agreement did not result in as favorable a sentence as both he and his attorney hoped, and that Falconer’s attorney had been before this Court on a previous ineffective assistance of counsel claim, we affirm. See Robertson v. State, 669 So.2d 11, 13 (Miss.1996).

II. DOES FALCONER’S SENTENCE CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT?

¶ 3. Falconer raises a serious constitutional claim that his sentence constitutes cruel and unusual punishment. However, an examination of the sentencing order reveals that Falconer made an open guilty plea to six counts of sale of cocaine, with a possible maximum sentence of thirty years per count to run consecutively. Falconer argues that the sentence is excessive because he is a first-time offender. However, he fails to demonstrate any unconstitutional dimension to his sentence, as it is within the limits of the statutory sentencing scheme. Johnson v. State, 461 So.2d 1288, 1292 (Miss.1984); see also Cook v. State 728 So.2d 117, 123(¶ 16) (Miss.Ct.App.1998).

CONCLUSION

¶ 4. For the foregoing reasons, we affirm the dismissal of Falconer’s motion for post-conviction relief as manifestly without merit.

¶ 5. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


text:
    Calvin GARNER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01505-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2002.

      Thomas D. McDonough, New Albany, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Calvin Garner was convicted on charges of possession of cocaine with the intent to distribute by the Circuit Court of Union County, and sentenced to twenty-five years in prison, with eight years suspended, and he was assessed court costs as well as statutory penalties. Garner perfected his appeal in forma pauperis to this Court.

STATEMENT OF THE ISSUES

I. WAS THE EVIDENCE SUFFICIENT TO SUSTAIN THE CHARGE OF POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE?

II. DID THE COURT ERR WHEN IT DENIED GARNER AN INSTRUCTION ON CIRCUMSTANTIAL EVIDENCE?

III. DID THE COURT ERR BY DENYING GARNER A CAUTIONARY INSTRUCTION CONCERNING THE TESTIMONY OF TERRANCE PE-GUES?

STATEMENT OF THE FACTS

¶2. Calvin Garner and several other persons were dicing in the residence of Demetrius James, Garner’s girlfriend, when the police kicked in the door and arrested Garner and Terrance Pegues on charges of possession of cocaine. Garner was standing in the kitchen at the time of arrest, a few feet away from the cocaine, while Pegues was caught in the act of attempting to flush a marijuana cigarette down the toilet in the bathroom adjoining the kitchen.

ANALYSIS

I. WAS THE EVIDENCE SUFFICIENT TO SUSTAIN THE CHARGE OF POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE?

¶ 3. Garner’s argument on the sufficiency of the evidence is twofold: first, he argues that the vial of crack cocaine rocks was insufficiently proximate to his person to constitute possession; and second, he contends that the quantity of crack cocaine was insufficiently great to sustain an intent to distribute. This Court reviews the denial of motions for directed verdicts and JNOV under the same standard: the evidence is viewed in the light most favorable to the State, and the result overturned only where “reasonable and fairminded jurors could only find the defendant not guilty.” McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 4. First we shall treat the question of possession. The law requires sufficient facts for a jury to be able to find that the defendant had control or dominion over the narcotics, and proximity may suggest possession. Kinzey v. State, 498 So.2d 814, 818-819 (Miss.1986). Where the defendant is not in exclusive possession of the premises where the narcotics are found, other competent evidence must exist connecting him to the narcotics. Powell v. State, 355 So.2d 1378, 1379 (Miss.1978). This is the law of constructive possession.

¶ 5. Garner argues that the State proceeded on a theory of constructive possession without asking the court to issue an instruction on this point of law. The record belies this claim; in fact, the State offered an instruction, but, preferring Garner’s proposed instruction on constructive possession, accepted it. The crucial difference in the State’s eyes was that Garner’s instruction contained an extra sentence regarding the concept of proximity. Garner’s instruction states the law with bountiful clarity, using the language of our supreme court in the Kinzey case.

¶ 6. The evidence adduced at trial demonstrates that Garner did not have any drugs on his person when he was arrested, although he was in proximity to a vial containing twenty rocks of crack cocaine weighing over two grams, and some crack dust was found in the house. The testimony also demonstrates that no one was seen smoking crack cocaine prior to the arrest, and further that no one saw the drugs on Garner’s person. However, Pegues testified that Garner acted as the owner of the house, and that he had referred to the house as his. Pegues also testified that he knew the drugs belonged to Garner. Several of the police officers that testified identified the house as Garner’s. Taken together in the light most favorable to the State, these facts are sufficient to indicate possession of the cocaine.

¶ 7. Second, we address the matter of whether the evidence sufficed to show intent to distribute the cocaine. Lacking any directly inculpatory statement from Garner indicating that his intent was to distribute the crack in his possession, the State had to demonstrate Garner’s intent from his acts, and the circumstances attendant to those acts. Thompson v. State, 258 So.2d 448, 448 (Miss.1972). Garner had in his possession twenty rocks of crack cocaine, weighing about a tenth of an ounce. Agent Spillers of the Mississippi Bureau of Narcotics (MBN) testified that the number of rocks of crack cocaine indicated that this cocaine exceeded the usual quantities for personal use. Garner argued that the twenty rocks were barely enough for the people at the party which the police broke up by arresting Garner, nearly conceding an intent to distribute at least to those people there present.

¶ 8. The New Albany police and the MBN had Garner’s house under surveillance for six months prior to the arrest. A number of known drug dealers had been observed entering and leaving Garner’s house during that time, indicating to the police that drug trafficking was taking place. Earlier on the day of Garner’s arrest, Odell Kimmons, a known drug user, was arrested after he left Garner’s house. A sizable quantity of crack cocaine was found in his car, and Kimmons informed the police that he had purchased the crack cocaine at Garner’s house.

¶ 9. Taken together with no particular emphasis on Garner’s argument at trial that the crack cocaine in his house was barely enough for the other people in his house, this evidence is sufficient to demonstrate Garner’s intent to distribute cocaine.

II. DID THE COURT ERR WHEN IT DENIED GARNER AN INSTRUCTION ON CIRCUMSTANTIAL EVIDENCE?

¶ 10. Garner argues that he should have received a circumstantial evidence instruction. The granting or denial of instructions is within the sound discretion of the trial court, and this Court shall not overrule the court below unless there is an abuse of discretion. Chatman v. State, 761 So.2d 851, 854(¶ 15) (Miss.2000). “A circumstantial evidence instruction must be given only when the prosecution can produce neither an eyewitness nor a confession/statement by the defendant.” Moore v. State, 787 So.2d 1282, 1288(¶ 18) (Miss.2001). The testimony of Terrance Pegues, an eyewitness to the arrest of Garner, is sufficient to eliminate the need for a circumstantial evidence instruction, coupled as it is with the testimony of the police officers who arrested Garner and had observed Garner’s presence in the house.

¶ 11. We find no error here.

III. DID THE COURT ERR BY DENYING A CAUTIONARY INSTRUCTION CONCERNING THE TESTIMONY OF TERRANCE PEGUES?

¶ 12. Garner requests that this Court order a new trial because the trial court failed to give a “mandatory” cautionary instruction regarding the testimony of Terrance Pegues. The decision to issue or deny a cautionary instruction is within the discretion of the trial court; however, that discretion may be abused. Burke v. State, 576 So.2d 1239, 1242 (Miss.1991). Mississippi assigns a two-part test to determine whether there has been such an abuse: first, was the witness an accomplice in fact; and second, was there corroborating testimony? Id. An abuse of discretion occurs when the witness was an accomplice in fact, and there is no corroborating testimony. Id.

¶ 13. No evidence adduced at trial indicated that Pegues was an accomplice in fact, although he was present during the arrest and was in fact arrested together with Garner. However, the charges against Pegues were dismissed. Also, the testimony of the police indicated a complete disjunction in the actions of Pegues and Garner: Pegues attempted to flush a marijuana cigarette he had been smoking, while Garner attempted to flee the house. Pegues had not been offered a deal for his testimony, although the fact that he faced no charges from the arrest begs the question of whether there was a deal in the offing.

¶ 14. Absent any evidence supporting Pegues’s status as an accomplice, this Court finds no error.

CONCLUSION

¶ 15. Garner argues that the evidence adduced at trial was insufficient to sustain the charges he faced. However, Garner can only demonstrate that the evidence brought into question whether the cocaine belonged to him or Terrance Pegues, which is itself a jury matter, an argument that implicitly concedes the sufficiency of the evidence. Garner also assigns as error the failure of the court to grant him a circumstantial evidence instruction. Here there is no error, as Pegues, an eyewitness, testified regarding the ownership of the cocaine. Finally, Garner argues that he should have received a cautionary instruction regarding Pegues’s testimony. Since no evidence was adduced at trial to indicate that Pegues was an accomplice of Garner’s, we find no error here.

¶ 16. For the foregoing reasons, we affirm.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF UNION COUNTY OF CONVICTION OF POSSESSION OF COCAINE WITH THE INTENT TO DISTRIBUTE AND SENTENCE OF 25 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH 8 YEARS SUSPENDED AND 5 YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO UNION COUNTY.

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