text:
    CITY OF JACKSON, Jackson City Council and the Jackson Public School District v. Carolyn GREENE and Charles Tisdale.
    No. 2003-IA-00385-SCT.
    Supreme Court of Mississippi.
    April 8, 2004.

      Samuel L. Begley, Terry Wallace, Elizabeth Lee Marón, W. David Watkins, Jackson, attorneys for appellants.
    Imhotep Alkebu-Lan, attorney for ap-pellees.
    Before SMITH, C.J., COBB, P.J., and CARLSON, J.
   SMITH, Chief Justice, for the Court.

¶ 1. On February 14, 2003, two parents who have children in the Jackson Public School District (“JPS”), Carolyn Greene and Charles Tisdale (“parents”), filed a bill of exceptions pursuant to Miss.Code Ann. § 21-39-11 (Rev.2001) & § 11-75-51 (Rev. 2002) in the Hinds County Circuit Court, First Judicial District. The bill of exceptions alleged that Council members Leslie McLemore and William “Bo” Brown should have recused themselves from a Jackson City Council vote on February 4, 2003, which confirmed the Mayor’s appointment of two members to the JPS Board of Trustees. Moreover, the bill of exceptions alleged that there would have been no quorum to support the vote if McLemore and Brown had recused themselves. The bill sought reversal of this vote. The parents also filed a motion for temporary restraining order and preliminary injunction.

¶ 2. The circuit court granted a temporary restraining order after a hearing. The circuit court concluded that the parents had “substantially met the criteria for [the] court to grant a temporary restraining order.” The court ordered the Council to “maintain the status quo of the school board’s membership as of February 3, 2003, prior to the mayor and city council’s approval of two (2) new board members.”

¶ 3. The circuit court held a hearing on the parents’ motion for preliminary injunction. At the hearing, the court allowed two witnesses to testify; moreover, the court considered various documents submitted by the parties. After the hearing, the circuit court granted the parents’ motion for preliminary injunction. The circuit court claimed that it limited its ruling to “whether the February 4, 2003 vote by the Jackson City Council should be set aside inasmuch as there was no proper quorum to sustain the validity of the confirmation of Jonathan Larkins and Maggie Benson White.” However, the court also held that Councilman Brown’s attempt to revoke his recusal could not be legally accomplished pursuant to this Court’s holding in Frazier v. State ex rel. Pittman, 504 So.2d 675, 695 (Miss.1987). Moreover, the court concluded that no quorum existed to sustain the Council’s February 4, 2003, vote. The court ordered that the “status quo of the Board’s membership as of February 3, 2003 remain unchanged until such time as the eligible councilpersons can properly establish a quorum and confirm the Mayor’s appointments to the JPS school board.” Moreover, the circuit court held:

[Cjouncil members who had not recused as of February 3, 2003, thereby making them eligible to establish a quorum and vote to confirm the school board appointments are ... Crisler, BarretWSi-mon, McLemore, and Stokes.... [T]he court opines that Councilman Brown should be held precluded from the vote and quorum consistent with his (four) recusals between January 13th and January 28, 2003.

The circuit court found that the necessary requirements for a preliminary injunction had been satisfied. Furthermore, the circuit court denied the City’s motion to dismiss and dismissed JPS by agreement of the parents and JPS.

¶ 4. The circuit court denied the City’s motion for a stay of the preliminary injunction and an order granting interlocutory appeal. This Court granted the City’s petition for interlocutory appeal and a stay of the preliminary injunction pending the Court’s determination of the appeal. See M.R.A.P. 5 & 8.

¶ 5. We find that the bill of exceptions alleges ethical misconduct, and the circuit court addressed this issue and ruled upon it. While any person may file a complaint with the Mississippi Ethics Commission (“Commission”), under our law, only local district attorneys, the Attorney General, or the Commission itself may file direct actions in court challenging the ethical conduct of public officials. As a result, we find that the parents are not “person[s] aggrieved” for purposes of Miss.Code Ann. § 11-75-51, and they do not meet the statutory requirements to file a bill of exceptions under the facts presented here. The parents’ sole remedy for the alleged ethical violations was to file a complaint with the Commission. The circuit court erred in concluding otherwise, and we reverse and render.

FACTS

¶ 6. Harvey Johnson, Mayor of the City of Jackson, Mississippi, nominated Jonathan Larkin and Maggie Benson White to serve on the Jackson Public Schools Board of Trustees (“Board”). The confirmation hearing on the appointments was set for January 13, 2003. On that date, six of the seven Jackson City Council (“Council”) members were present: Ben Allen, William “Bo” Brown, Marshand Crisler, Betty Dagner-Cook, Leslie McLemore, and Margaret BarretWSimon. Councilman Kenneth Stokes absented himself from the proceeding. Moreover, Council members Allen, Brown, and Dagner-Cook recused themselves from the hearing, leaving only three members present. Because the three remaining members did not constitute a quorum, there was no vote on the school board appointments. The vote was therefore rescheduled to take place during the Council’s regular meeting on January 14, 2003.

¶ 7. On January 14, 2003, the same members of the council were present. Council members Allen, Cook, and Brown again recused themselves from the confirmation hearing. Because there was no quorum, there was no vote on the appointments. The hearing was rescheduled two additional times for January 21, 2003, and January 28, 2003. According to the City Clerk, there was no vote on the school board appointments on either date. Moreover, the Clerk’s notes did not reflect the reason for rescheduling the confirmation vote, and the Clerk could not recall whether any couneilperson recused at those hearings. The confirmation hearing was therefore rescheduled for February 4, 2003. On that date, Councilman Brown participated in the confirmation hearing and did not recuse himself. Council members Crisler, McLemore, and Barrett-Simon voted to confirm the appointments. Councilman Brown did not vote for or against the confirmations — rather, he raised his hand to indicate that he abstained from the vote. Thus, the appointments were confirmed because three of the four Council members present voted in favor of the appointments.

¶ 8. Carolyn Greene and Charles Tisdale are residents of the City of Jackson, Mississippi (“the City”). Both have a child enrolled in the JPS. Aggrieved by the judgment below, the City of Jackson, Jackson City Council, and JPS (collectively, “the City”) raise seven issues on appeal. Because issues one and two are dispositive of this action, we need not consider the remaining assignments of error.

DISCUSSION

¶ 9. “When the issues presented on an interlocutory appeal are questions of law, this Court will review those issues de novo.” Sanderson Farms, Inc. v. Gatlin, 848 So.2d 828, 841 (Miss.2003). The first two issues in this case are intertwined and present questions of law; therefore, we will consider them together, applying the de novo standard.

I. WHETHER THE PARENTS HAVE STANDING TO FILE A BILL OF EXCEPTIONS IN THIS CASE.

II. WHETHER THE PARENTS HAVE STANDING TO CHALLENGE ETHICAL CONDUCT OF MEMBERS OF THE CITY COUNCIL.

¶ 10. The parents initiated this action pursuant to Miss.Code Ann. § 11— 51-75, which authorizes “[a]ny person aggrieved” by a judgment or decision of a city to appeal to the circuit court utilizing a bill of exceptions. In considering an appeal initiated pursuant to Miss.Code Ann. § 11-51-75, this Court has held that any “act of a municipality which leaves a party aggrieved is appealable to the circuit court where all of the issues of the controversy are finally disposed of by order of the municipal authorities.” McPhail v. City of Lumberton, 832 So.2d 489, 491 (Miss.2002). Although Miss.Code Ann. § 11-51-75 provides the appropriate procedure for appealing decisions of a municipal body, “[i]t does not in any way confer standing.” Burgess v. City of Gulfport, 814 So.2d 149, 153 (Miss.2002).

¶ 11. While we have not passed on the issue of standing in a case involving facts similar to those presented here, our general decisions on standing are instructive. Compared to the stringent definition of standing applied by the federal courts, it is true that Mississippi’s standing requirements are “quite liberal.” Id. at 152 (quoting State v. Quitman County, 807 So.2d 401, 405 (Miss.2001)). The federal definition of “standing” is limited by Art. Ill, § 2 of the United States Constitution to a review of actual cases and controversies. 807 So.2d at 405. However, “the Mississippi Constitution contains no such restrictive language” and, unlike the United States Constitution, does not limit review to actual cases and controversies. Id. As the parents correctly point out, “this Court has been more permissive in granting standing to parties who seek review of governmental actions.” Id. (internal quotation marks & citations omitted). See also Fordice v. Bryan, 651 So.2d 998, 1003 (Miss.1995); Van Slyke v. Board of Trustees, 613 So.2d 872, 875 (Miss.1993); Dye v. State ex rel. Hale, 507 So.2d 332, 338 (Miss.1987).

¶ 12. Generally, under this Court’s jurisprudence, “parties may sue only where they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise authorized by law.” Saucier v. Biloxi Reg’l Med. Ctr., 708 So.2d 1351, 1355 (Miss.1998). See also State v. Quitman County, 807 So.2d at 405 (holding that county in a suit against the State of Mississippi “asserted a colorable interest in the existing county-based system of indigent defense funding” because it, as a county, was “the entity which our Legislature has required to provide indigent defense funding”); Dye, 507 So.2d at 338 (holding that standing to sue is conferred upon any party adversely affected or impacted by the defendant’s conduct or actions); White Cypress Lakes Dev. Corp. v. Hertz, 541 So.2d 1031, 1034 (Miss.1989) (holding that a subdivision homeowner had standing to sue for enforcement of restrictive covenants if he or she presented to the court a colorable claim that the conduct of the development company had, and was having, an adverse effect upon the homeowner’s property); Luter v. Oakhurst Assocs., Ltd., 529 So.2d 889 (Miss.1988) (holding that owners of residential property near property which was subject of zoning dispute had standing to appeal decision adverse to town when town chose not to appeal); Belhaven Improvement Ass’n, Inc. v. City of Jackson, 507 So.2d 41, 47 (Miss.1987) (holding that “[f|or standing, the person(s) aggrieved,... whether one or more, should allege an adverse effect different from that of the general public.”).

¶ 13. In Burgess, the Gulfport City Council voted to approve and accept a recommendation to issue a certain tree removal permit. 814 So.2d at 150. A group of residents filed a bill of exceptions pursuant to Miss.Code Ann. § 11-51-75 challenging the Council’s decision to approve and accept the recommendation. Id. The residents did not own the real property at issue. Id. at 153. Moreover, the residents did not allege that they owned the land around the property or that the property was affected in an adverse manner. Id. Thus, the Court held that the residents failed to show a colorable interest in the subject matter of the litigation. Id.

¶ 14. In Burgess, this Court also concluded that a party challenging a municipal decision under Miss.Code Ann. § 11-51-75 has the burden of “demonstrat[ing] a specific impact or harm felt by him that was not suffered by the general public.” Id. at 153 (citing City of Madison v. Bryan, 763 So.2d 162 (Miss.2000)). That is, the fact that a person resides in a municipality alone is insufficient to confer standing. Because the residents did not show a col-orable interest in the subject matter of the controversy and residency in a municipality alone is insufficient to confer standing for purposes of Miss.Code Ann. § 11 — 51— 75, the Court held that the residents did not have standing. Id.

¶ 15. With respect to the parents’ ability to challenge the Council’s ethical conduct, the Mississippi Ethics in Government statutes authorize the Mississippi Ethics Commission to investigate “any alleged violation of law by public officials or public employees” when it receives a signed complaint from “any person, including any member of the commission or its staff.” Miss.Code Ann. § 25-4-19 (Rev.2003). If probable cause exists “for belief that a violation of law has occurred,” the Commission must refer the complaint and any evidence obtained during its investigation to the Mississippi Attorney General and the district attorney having jurisdiction. Id. § 25-4-21. The Commission must also submit “a recommendation that [the alleged violation] be considered for presentation to the grand jury, as well as any further recommendations for seeking civil remedies.” Id. The Commission, Attorney General, or any governmental entity directly harmed may seek civil remedies for ethical violations. Id. §§ 25 — 4—19(g)(ii) & 25-4-113. Thus, as we have pointed out, the Commission is authorized “to pursue legal remedies when it believes such action is called for.” Bd. of Tr. of State Insts. of Higher Learning v. Ray, 809 So.2d 627, 634 (Miss.2002) (citing Miss.Code Ann. § 25-4-19). Furthermore, Article 3 of the Mississippi Ethics in Government provisions provides:

(1) Any complaint for a violation of this article shall be brought in the circuit court of the county in which the violation occurred; provided, however, that upon the motion of the defendant such action shall be removed to the county in which the defendant resides. Any such complaint may be initiated only by the Mississippi Ethics Commission or the district attorney of the county in which the violation occurred.

Miss.Code Ann. § 25-4-107 (Rev.2003) (emphasis added). A review of the applicable code sections indicates that the Legislature has enacted no provision conferring on citizens the power to bring direct actions in court against public officials for violating the ethics laws. Rather, the Mississippi Code empowers only public bodies or officers like the Commission, local district attorneys, the Attorney General, or a governmental entity harmed by the violation to bring such actions.

¶ 16. Here, the bill of exceptions filed by the parents states in pertinent part:

Appellees appeal from the February 4, 2003 action of the City of Jackson and Jackson City Council appointing Jonathan Larkin and Maggie Benson-White to the Jackson Public School board when Jackson City Councilmen William “Bo” Brown and Leslie McLemore did not recuse themselves and leave the room, as Brown had done on all previous votes involving Jackson Public Schools. Brown’s wife and daughter are teachers in the Jackson Public Schools. McLemore’s wife, Betty Mallette, is an attorney working for the law firm McGlinchey Stafford which does a substantial amount of business with the Jackson Public Schools. Appellees seek a reversal of the vote of February 4, 2003 and that it be declared null and void and of no force and effect.
This vote was arbitrary, capricious, discriminatory, illegal, invalid and void. Councilman William “Bo” Brown should have recused himself from the vote because his wife is a teacher in the Jackson Public Schools...Moreover, Councilman Leslie McLemore should have recused himself and left the room. His wife, Betty Mallette, is an attorney working in the law firm McGlinchey Stafford which does a substantial amount of business with the Jackson Public Schools.
:|c * *
If either Councilmen Brown or McLe-more had recused themself [sic], as they were ethically required to do, the City Council would not have had a quorum to vote on the appointment to the Jackson Public Schools. The Jackson City Council vote was therefore illegal, invalid, and void and should be so declared.

(emphasis added).

¶ 17. Under the facts presented here, we must read Miss.Code Ann. § 11-51-75 in light of the Mississippi Ethics in Government provisions. It is true that any person aggrieved by a municipal board decision may file a bill of exceptions challenging that decision. But where a person objects to unethical conduct by that body, he or she is only entitled to file a charge with the Mississippi Ethics Commission for investigation and subsequent action in the courts. That is the procedure which these individuals here should have followed. The Commission should then investigate the individual’s allegations. Upon finding probable cause for believing that a violation has occurred, the Commission is statutorily commanded to refer all complaints and evidence gathered during its investigation to the Attorney General and the local district attorney having jurisdiction for prosecution.

¶ 18. The parents’ bill of exceptions seeks reversal of the confirmations based on the assertion that there was no quorum present to support the vote. The parents reason that there was no quorum because certain council members should have or were required to recuse themselves from the vote due to alleged conflicts of interest. Thus, the bill of exceptions was unquestionably couched in terms of a challenge to the ethical conduct of two council members.

¶ 19. It is fundamental in our democratic system of government that citizens will seek redress if they conclude an elected official, a person who holds the public trust, has violated this State’s Ethics in Government laws. The Legislature has enacted a comprehensive statutory framework giving the people of this State the power to see that public officials carry out their duties in an ethical manner. The exercise of this power is carried out through the filing of complaints against public officials when unethical acts are committed. A citizen might initiate, through her complaint with the Commission, an investigation which ultimately leads to civil or criminal penalties against the wrongdoer. She may not, however, file a direct challenge in court against a public official for alleged violations of the Ethics in Government statutes. Moreover, the Legislature has clearly mandated that only the Commission and local district attorneys may file actions in court for a public official’s violation of the conflict of interest provisions. Miss.Code Ann. § 25-4-107 (Rev.2003).

¶ 20. We find that the parents’ bill of exceptions is clearly a challenge to the ethical conduct of two Council members. While the parents might be offended or even outraged by the alleged ethical violations in this case, their sole remedy is to file a complaint with the Commission. Instead, they chose to file a bill of exceptions in circuit court alleging ethical misconduct. Reading § 11-51-75 in light of the Ethics in Government statutes, we find that the parents do not qualify as “person[s] aggrieved” for purposes of Section 11-51-75. The parents’ allegations concern ethical violations, a subject which, by legislative mandate, is left to public bodies for action in a court of law.

CONCLUSION

¶ 21. For the foregoing reasons, we reverse the judgment, including the preliminary injunction and temporary restraining order, of the Hinds County Circuit Court, and we render judgment here dismissing the parents’ bill of exceptions for lack of standing.

¶ 22. REVERSED AND RENDERED.

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

      . Specifically, the court heard testimony from Eddie Jean Carr, the City Clerk, and William "Bo” Brown. In addition, the court considered affidavits submitted by the parents, as well as Mississippi Ethics Commission advisory opinions.

      . The record indicates that Brown’s wife and daughter are both employed by the Jackson Public Schools (JPS).


source: Caselaw Access Project

author: GRAVES, Justice, for the Court. COBB, Presiding Justice,

license: Public Domain

text:
    In re ESTATE OF William George LAW, Deceased. Dolores Cluney a/k/a Dolores Law v. John David Law, Administrator.
    No. 2000-CT-02025-SCT.
    Supreme Court of Mississippi.
    April 8, 2004.
    C. Michael Malski, Amory, attorney for appellant.
    J. Dudley Williams, Aberdeen, attorney for appellee.
   ON WRIT OF CERTIORARI

GRAVES, Justice, for the Court.

¶ 1. The chancellor set aside as fraudulent a deed from George Law, John David Law’s father, to Dolores Cluney (a.k.a.Delores), a woman believed to be his wife. After George Law died, it was discovered that Dolores Cluney was still married to her previous husband and that she had misrepresented herself to George Law and the court. Cluney appealed, and the Court of Appeals reversed and rendered, 6-3, finding that there was no evidence George Law conveyed the deed because he thought he was married to Cluney. In re Estate of Law, 852 So.2d 33 (Miss.Ct.App.2002). This Court granted certiorari to consider whether the Court of Appeals erred in deciding the case. We reverse the judgment of the Court of Appeals and affirm the chancellor’s judgment.

FACTS AND PROCEEDINGS IN THE TRIAL COURT AND THE COURT OF APPEALS

¶ 2. George Law met Dolores Cluney in 1992 a few years after his wife died. Clu-ney apparently lived near him in a small trailer and frequently borrowed items such as sugar, cigarettes or the telephone. In September 1992, Law, 73, and Cluney, 40, began living together, and in 1994 they participated in a marriage ceremony. On the marriage license application, Cluney represented herself to be Dolores Spadoni and indicated she had never been married. Shortly after the wedding, Cluney temporarily left Law and upon her return he deeded her a survivorship interest in his house and the surrounding one-acre lot. Law died intestate in 1999, and additional acreage he owned was inherited by his children. Law’s son, John David Law (John Law), was appointed administrator of the estate, and he petitioned the court to have the deed set aside and the marriage declared void.

¶ 3. Initially, John Law was not aware of Cluney’s bigamy. Cluney apparently tried to keep her past well-hidden even from the court, and the record reflects numerous blatant acts of perjury. With absolutely no cooperation from Cluney, who had been using the name Dolores Spadoni Law, the truth finally unfolded to reveal that she had been legally married to Raymond Clu-ney since 1972 and that she had represented herself in court documents to be the common-law wife of a second man, Timothy Wayne Johnson, whom she tried to have committed in 1992. The record reflects that this information only became known when a secretary for John Law’s attorney recognized Dolores and then remembered Johnson’s name from a lunacy proceeding. When first confronted with the truth, Cluney denied she was Dolores Cluney or that she was involved in the commitment action against Johnson, but, after being confronted indisputable evidence in a much later proceeding, she admitted she was the same person. Since Cluney’s marriage to George Law was void, the chancellor granted partial summary judgment and set aside all of her inheritance rights. At a later trial, the chancellor set aside the deed conveying the house and established a constructive trust for the benefit of the heirs. Cluney appealed, and the Court of Appeals reversed and rendered, finding the element of George Law’s reliance on the marriage in conveying the deed was not proven.

ANALYSIS

¶ 4. John Law asserts that the Court of Appeals erred in holding that the chancellor’s findings on the issue of reliance were manifestly wrong. As noted by the Court of Appeals, the factors for setting aside a conveyance based on fraud have previously been set out by this court.

The elements of fraud, which must be proven by clear and convincing evidence, include: 1) a representation; 2) its falsity; 3) its materiality; 4) the speaker’s knowledge of its falsity or ignorance of its truth; 5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; 6) the hearer’s ignorance of its falsity; 7) his reliance on its truth; 8) his right to rely thereon; and 9) his consequent and proximate injury.

Levens v. Campbell, 733 So.2d 753, 761-62 (Miss.1999). See also Spragins v. Sunburst Bank, 605 So.2d 777 (Miss.1992); Martin v. Winfield, 455 So.2d 762 (Miss.1984).

¶ 5. The Court of Appeals reweighed the evidence supporting the elements of fraud after finding that the chancellor quoted them in her opinion, but did not make a specific finding on all of them.

Proof of the elements of fraud must be by clear and convincing evidence. Id. at 761. We look to the record to determine what evidence existed on these factors. Though there are not findings on each factor, we can in a non-domestic relations case imply the findings on contested evidence necessary to uphold the decision unless there are indications that the chancellor was not applying the correct legal principles. Watson v. Lillard, 493 So.2d 1277, 1279 (Miss.1986)(“where the trial judge did not make specific findings of fact with regard to controverted issues, this Court will assume that the trial judge made all findings of fact that were necessary to support his verdict”). The chancellor set out these same factors as being necessary for proof of fraud, then found that fraud was proven. Therefore, we will imply the necessary findings if there is evidence to support them.

In re Estate of Law, 852 So.2d at 36 (¶ 10).

¶ 6. This Court found specifically in Watson:

That this Court will not disturb a trial judge’s finding on appeal unless it is manifestly wrong is a doctrine too well known to require citation. Moreover, in a case like the present one, where the trial judge did not make specific findings of fact with regard to controverted issues, this Court will assume that the trial judge made all findings of fact that were necessary to support his verdict.

493 So.2d at 1279 (citations omitted).

¶ 7. In the case sub judice, the chancellor found:

Based on the totality of the situation and the credible proof, Delores made a false representation as to her marital status and this representation was material to George deeding an interest in his real property to her. It was only after six months of a purported marriage that a deed was executed and the deed itself refers to Delores as George’s wife in two locations in the document.
Where one party (in this case, Delores) knows of an impediment to marriage and practices a fraud on the other, (George), there is no reason why this fraud should not vitiate the gift.
Accordingly, this Court grants the relief requested and does hereby set aside the transfer based on fraud from George and Delores to George and Delores to the following described property....
In granting this relief, the Court proceeds on the ground that the transaction should never have taken place, so that the title to this property would stand as if the transaction had never occurred.
On several occasions, Delores swore to tell the truth and proceeded to deny her marriage to Cluney. On one of these occasions, Delores was testifying before this Court and was given many opportunities to correct her misrepresentations.
This Court is called upon to fairly and impartially dispense justice on a daily basis relying upon information provided through testimony in open Court. Therefore, to rule otherwise in this cause would undermine the integrity of the entire Court system. Justice is founded upon the truth. Without this truth, our system would be a complete farce and cease to dispense justice. To allow Delores to realize personal gain after exhibiting a blatant disregard for the truth would be the epitome of injustice, exactly what this Court strives to avoid.

¶ 8. The trial court based its decision on the evidence as a whole and made a specific finding of reliance as noted in the language above. However, the Court of Appeals found that the chancellor did not make all findings of fact necessary to support the decision. The Court of Appeals then reanalyzed the elements of fraud and found sufficient evidence to support each element except for that of reliance. However, that analysis was improper.

To prevail on this element it must be shown that Law relied on the misrepresentation. Not every spoken untruth is actionable as fraud. It is only if that untruth by design and effect induced the hearer to change his position in justifiable reliance on the information. McGee v. Swarek, 733 So.2d 308, 312 (Miss.Ct.App.1998). There is no direct evidence that Law conveyed the residence only because he thought Cluney was his wife. Mr. Law’s sister testified that he had told her after the wedding that he would convey Cluney his house because he was not able to care for himself. The implication was that the conveyance was in exchange or in gratitude for the care that she was providing, which included cooking, cleaning, and other household chores. She also stated this:
Q. [D]id [Law] ever make the statement to you because Dolores is my wife, I am deeding her the property?
A. No, sir, no, sir.
Q. What did he tell you or why did he tell you he was deeding the property to Dolores?
A. Because — so that she would take care of him until he died.
Mr. Law’s aunt also testified. She stated that even before the ineffective ceremony took place, Law stated that he wanted Dolores to have his residence. There was no other evidence about Law’s intentions, state of mind, or other relevant fact in determining why he would want to convey the property to Cluney. The chancellor made a finding that the misrepresentation was material to Law. We interpret that finding as meaning that Law relied on the existing of the marriage in deciding the execute the deed. We accept that proof of reliance could be through inferences. That the marriage was not important to the decision also can arise from inferences.

In re Estate of Law, 852 So.2d at 38 (¶¶ 20-22).

¶ 9. The Court of Appeals used implications and inferences most favorable to Clu-ney in order to find that the element of reliance was not proven. That finding is erroneous. As previously addressed, the assumption is that the trial court made sufficient findings of fact to support its decision. Beyond that, the suppositions that the marriage was not important to the grantor’s decision and that the conveyance was consideration for household services defy other established standards of law, not to mention common sense and logic.

¶ 10. If the grantor had strictly intended to enter into a contract where in Cluney provided household services and he, in turn, conveyed his house to Cluney as payment, then he could have done that. He did not. The record reflects that the parties had an intimate relationship. The record also reflects that George Law was in bad health from the beginning of the relationship. He did not convey the house to her until after the marriage and then he conveyed it to his “wife,” as he believed her to be. Cluney admits and the record reflects that George Law had no knowledge of Cluney’s prior marriage. One cannot assume that George Law would have even been involved with Cluney at all had he known that she was still married, much less that he would have left his home to her.

¶ 11. Common sense dictates that a man involved in a serious intimate relationship with a woman that results in marriage is not going to leave a house to her and her heirs when she defrauded him and knew the marriage was invalid. If Cluney were to die, her heirs, including any lawful husband, would get the house. That lends itself to the argument that George Law was so gracious to Cluney for her household services that he would rather risk his home ending up in the possession of people the record establishes he did not even know rather than in that of his own children. The record also indicates that George Law’s eldest son actually helped his parents, George Law and the late Geraldine Law, purchase the house in question and that the younger siblings were raised there. The only reasonable inference is that George Law relied on the marriage in his decision to convey the house to Cluney and waited to execute the warranty deed after such took place more than a year later.

¶ 12. Additionally, the Court of Appeals sets out in the quote above that George Law’s aunt, Rozema Munn, testified that he told her before the “marriage” ceremony that he wanted Cluney to have the house. That lends itself even more to the implication that he relied on the marriage because he did not actually deed the house until after they were married. George Law’s sister, Katherine Bowen, who also testified that he was leaving the house to Cluney because she helped him, is close to Cluney and has been appointed to assist Cluney with her social security benefits and has an interest in land situated near the house. Both of these women also testified that they had no knowledge of Clu-ney’s marital status.

¶ 13. The record in its entirety lends credence to the likelihood that Cluney was determined to obtain George Law’s property. Before the truth was discovered, Cluney attempted to lay claim to additional property, including one year’s support of $12,000, as set out in her “widow’s” response. Additionally, she attempted to have the appointment of John Law as administrator set aside and herself appointed in his stead. Cluney attempted to defraud everyone, including George Law, his children, the court, even her own lawyer, for an extended period of time. Cluney’s actions were more than a mere misrepresentation.

CONCLUSION

¶ 14. Accordingly, we find that the trial court made sufficient findings of fact to support its decision, and the Court of Appeals erred in concluding otherwise. We reverse that the Court of Appeals’ judgment reversing the Chancery Court of Monroe County and reinstating the deed. In doing so, we affirm the judgment of the Chancery Court of Monroe County setting aside the fraudulent conveyance.

¶ 15. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE CHANCERY COURT OF MONROE COUNTY IS AFFIRMED.

SMITH, C.J., WALLER, P.J., AND CARLSON, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. COBB, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, J., AND IN PART BY EASLEY, J. DIAZ, J., NOT PARTICIPATING.

COBB, Presiding Justice,

Dissenting:

¶ 16. As stated by the majority, the Court of Appeals reversed the chancellor’s judgment, finding that fraud had not been proven by clear and convincing evidence. The majority concludes that the Court of Appeals’ analysis was improper because it used implications and inferences most favorable to Dolores Cluney in order to find that one of the elements of fraud was not proven. In my view, the Court of Appeals reached the right conclusion, but improperly used inferences to find that several elements of fraud did exist. Thus, I must respectfully dissent.

¶ 17. I write to clarify and correct the holding of the Court of Appeals for three reasons. First, I agree with the Court of Appeals that John Law failed to prove the elements of fraud by clear and convincing evidence. However, several of the fraud elements were not even proven by a preponderance of the evidence, because no evidence of these elements was presented at all.

¶ 18. Second, although the majority concedes that the trial court failed to make specific findings as to the elements of fraud, it asserts that “the assumption is that the trial court made sufficient findings of fact to support its decision.” When the record contains no evidence from which to assume sufficient findings of fact, this position is contrary to well established Mississippi law. “Fraud is never to be presumed or inferred, but must be proven by clear and convincing evidence.” Boling v. A-1 Detective & Patrol Serv., Inc., 659 So.2d 586, 590 (Miss.1995) (citing Nichols v. Tri-State Brick and Tile, Co., 608 So.2d 324, 330 (Miss.1992)). On appeal, the appellate court may reverse if substantial evidence does not support the findings of fact.

¶ 19. Finally, witnesses for Cluney provided substantial evidence that although Cluney had nothing when she met George Law, she helped him in a number of ways by caring for him in bad health, and providing companionship to a lonely old man. The evidence shows that George wanted Cluney to have a home after he died and deeded her a survivorship interest in his home in return for her caring for him until he died. With regard to the fraud elements for which the administrator supplied no opposing evidence, this testimony supports a ruling that fraud has not been proved by clear and convincing evidence.

¶ 20. This Court will not disturb a chancellor’s findings of fact unless the chancellor was manifestly wrong, clearly erroneous or applied an erroneous legal standard. Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). When a chancellor’s findings are supported by substantial, credible evidence in the record we will not reverse. Branton v. Branton, 559 So.2d 1038, 1042 (Miss.1990). But it is our responsibility to ensure that the trial court’s findings of fact conform to the required standard of proof. The chancellor correctly acknowledged that it is well settled law in this state that in the absence of fraud a voluntary conveyance cannot be set aside. Campbell v. State Highway Comm’n, 212 Miss. 437, 54 So.2d 654 (1951). As stated in Martin v. Winfield, 455 So.2d 762, 764 (Miss.1984), “proving fraud is difficult, as it ought to be. Clear and convincing evidence is required.” Id. (citing Cotton v. McConnell, 435 So.2d 683, 685-87 (Miss.1983); Franklin v. Lovitt Equipment Co. 420 So.2d 1370, 1373 (Miss.1982)).

¶ 21. A review of the record and testimony from the hearing on the issue of fraud shows that many of the elements were not proven by clear and convincing evidence. As discussed in the majority opinion, the elements of fraud are well established: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) the speaker’s intent that it should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) the hearer’s reliance on the truth; (8) the hearer’s right to rely thereon; (9) and his or her consequent and proximate injury. See, e.g., Martin v. Winfield, 455 So.2d at 764; Hamilton v. McGill, 352 So.2d 825, 831 (Miss.1977); Crawford v. Smith Bros. Lumber Co., 274 So.2d 675, 678 (Miss.1973).

¶22. There is no doubt that the first two elements of fraud were proven. Clu-ney even stipulated that she was not legally married to George Law because she had not obtained a divorce from her first husband prior to her marriage to George and that she had concealed the prior marriage and lack of a divorce from George. As to the remaining elements of fraud, there was scant evidence produced at trial.

¶ 23. John Law, the party alleging fraud, called two witnesses. The first was his brother, Bill Law, the oldest of six children, who had lived in Kansas for the past 20 years. None of his testimony related to elements three through nine of fraud, but generally concerned background information. From this, John Law’s attorney seemed to infer, although he did not specifically state, that because the deed was signed after the marriage, materiality was shown, and because the children grew up in the house, George would not want Cluney to have the house if he weren’t legally married to her.

¶ 24. The second witness was John Law, the administrator to the George Law estate and the “middle” son. John was asked the same general questions that Bill had already answered. Additionally, John was asked if he had “an opinion about whether or not [George] would have ever signed a deed to Delores Cluney had he known he wasn’t married to her?” John responded:

I wouldn’t think so, because he had never known about this or I would have known about it a long time ago. We just thought — at first when she came there, we felt sorry for her. She was company for an older, very lonely man. And I lived in Hatley and he would drive up there, which he was bad about seeing anyway, he was going blind even. And when she came, she was much his company.
She had no money, no job, nothing. She lived out of the trash can, out of the green dumpsters, that’s where we met her. She walked from the dumpster to her house. The little trailer they lived in walked past our backyard and that’s how she came to know my dad.

¶ 25. This is the extent of the proof of fraud offered by John Law. Thus there was no evidence offered for elements 3, 4, 5, 7, 8, or 9. Moreover, the opposing party’s contention that fraud was not proven was supported by substantial evidence.

¶26. George Law’s sister, Katherine Bowen, and his aunt, Rozema Munn, testified on Cluney’s behalf. These women stated that they talked to George several times per week and daily after he was diagnosed with cancer. As to element (4), the speaker’s knowledge of its falsity or ignorance, of its truth, Bowen and Munn each testified that Cluney had the mental capacity of about a twelve year old, that she is easily confused, and that the Social Security Administration had appointed Bowen to help Cluney with her SSI finances because Cluney was not able to do this on her own. There was additional evidence in the record that Cluney’s first marriage occurred. 28 years earlier, when she was 17 years old; that she lived with her first husband for only one month; and that he had filed for divorce, but had never been granted one. It is quite conceivable that Cluney thought she was divorced. Munn testified that “in the state of her mind, I doubt she even remembered marrying him.”

¶ 27. As for element (5), her intent that [her misrepresentation] should be acted upon by the person and in the manner reasonably contemplated, Bowen and Munn each testified that George Law had told her that he wanted Cluney to have a home, and that he was going to deed his house to her in return for Cluney taking care of him until he died. He told Munn this prior to the marriage and told Bowen this after the marriage. In fact, Cluney took care of him for seven years while he was in bad health, including the last year of his life when he was dying of cancer. Bowen and Munn testified that Cluney kept a very clean house and was devoted to George. They also testified that George Law had let each of them know that it was his intent to leave a separate tract of land to his children. In my view, it is much more reasonable to conclude that George Law would leave his modest home to his care giver, who would more than likely be homeless without it, in return for her companionship and care, than to conclude that he did so because he thought they had a valid marriage. It is also conceivable that Cluney did not have the mental capacity for the requisite intent required by element 5. In any event, no evidence was provided by John Law for these elements.

¶ 28. Testimony from Bowen and Munn also suggests that George Law’s children rarely visited him (this is contested by John Law, the only child who lives in the area), and that Cluney did a very good job keeping house and taking care of George for seven years, so much so that no external care was required during his final year when he was dying with cancer. This would suggest that Cluney’s intentions were honorable, rather than simply a desire to gain property through fraud.

¶ 29. Mississippi law requires that fraud be proven by clear and convincing evidence. This Court may not ignore law because we find the facts unpleasant. In this case, only fraud element numbers 1 and 2 were proven by clear and convincing evidence. The party alleging fraud offered no evidence for elements 4 or 5. There was no evidence offered from either side as to fraud elements 7, 8, or 9. The Court of Appeals came to the right conclusion, but erred in inferring the elements of fraud and not requiring each element to be proved by clear and convincing evidence. Because fraud was not proven by even a preponderance of the evidence, much less by clear and convincing evidence, I respectfully dissent.

DICKINSON, J., JOINS THIS OPINION. EASLEY, J., JOINS IN PART.

      . Cluney was criminally prosecuted in 2001 for perjury and bigamy based on the false statements made in depositions and before the court in this case. She pled guilty in a plea agreement and was sentenced to two suspended five-year sentences.

      . Bill Law was asked to relate the following factual information to the court: the date of George and Cluney's marriage ceremony (stipulated by Cluney to be 1/8/94 — Bill was not present), the date of the warranty deed transfer (six months after the date of the marriage ceremony), when Cluney moved in with George (Sept. '92), how the deed was worded (“we, George w. Law and wife, Deloris Law, do hereby convey, warrant unto George W. Law and Wife, Deloris Law as joint tenants with the fill rights of survivorship and not as tenants in common.”), when the original deed was signed (1977), who lived in the house (his younger siblings grew up there), and that George and his first wife with some help (no specific figures) from the children had been the ones who paid for the house until George’s first wife’s death.

      .Cluney’s objection to this questioning was overruled, but this issue was not presented on appeal.

      . John Law objected to this line of questioning, but was overruled. This issue was not raised on appeal.


author: SOUTHWICK, P.J., for the Court.

text:
    Morris L. SEYMOUR, III, Appellant, v. Deborah O. SEYMOUR, Appellee.
    No. 2002-CA-00784-COA.
    Court of Appeals of Mississippi.
    March 23, 2004.

      M. Channing Powell, Gulfport, attorney for appellant.
    Deborah 0. Seymour, Appellee, pro se.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   SOUTHWICK, P.J., for the Court.

¶ 1. Morris and Deborah Seymour were granted a divorce on the grounds of irreconcilable differences. The Seymours owned a marital home, an electrical business, an office building and four parcels of real estate. The judge in the divorce decree ordered that their properties be sold. Mr. Seymour would retain the electrical business. Mrs. Seymour would receive $50,000 in lump sum alimony to be paid from Mr. Seymour’s share of the property sales.

¶ 2. Mr. Seymour filed a motion to reconsider that posed several questions to the court. Ruling on the motion, the chancellor found that the lump sum alimony was support rather than part of the property settlement. Mr. Seymour appeals, arguing that the judge should not have defined this alimony as support. We find no error and affirm.

DISCUSSION

1. Clarification of lump sum alimony

¶ 3. Mr. Seymour argues that it was beyond the discretion of the trial court to clarify that the lump sum alimony awarded to Ms. Seymour in the divorce decree was for support and not part of the property settlement. He argues that under the rules of civil procedure, the court could not clarify the judgment since more than ten days had passed between the entry of the judgment and the order on post trial motions. M.R.C.P. 59(d).

¶ 4. Mr. Seymour further argues that the court could not use the rule that allows a court to correct clerical mistakes that arise from oversight or omission. M.R.C.P. 60(a). He cites a precedent of this Court that in Mr. Seymour’s own quoted interpretation concludes that a “trial judge can not on his own initiative change his mind and make a new ruling under Rule 60(a).” Edwards v. Roberts, 771 So.2d 378, 386 (Miss.Ct.App.2000) (quote is of Seymour’s analysis in his appellate brief). However, Edwards actually stated that Rule 60(a) cannot be used to reflect a change in mind by the judge; it can only be used to correct an order that failed accurately to reflect the judge’s original decision. Id. It was within the scope of Rule 60(a) for the judge to clarify what his decision in the divorce decree in fact was.

¶ 5. In his motion to reconsider, Mr. Seymour questioned the lump sum alimony. He asked how “did the Court determine the value of Seymour Electrical business to be $100,000 and thereby award Deborah Seymour $50,000 in lump sum alimony?” The court replied in the order:

Regarding Mr. Seymour’s assumption that the court valued the business at $100,000, the court would note that nowhere in the opinion is such a valuation placed upon the business. Rather, the court took into account all the circumstances of the case.... Mr. Seymour further tries to make a connection between the award of lump sum alimony to Mrs. Seymour in the amount of $50,000 to the Court’s perceived valuation of the business at $100,000. There is no such connection. The alimony is a support payment, not a property division, which the court arrived at by taking into account all the factors which go into making an alimony determination.... The $50,000 lump sum alimony, which is intended as support, and not property division, was based upon all those factors.

Mr. Seymour’s own question to the court made it useful for the judge to explain the amounts set forth in the divorce decree. It was in answering that question that the judge classified the alimony as support, the matter that is now challenged on appeal.

¶ 6. Rule 60(a) may be used on the judge’s own motion as a source of authority, and the chancellor also had the right in responding to Mr. Seymour’s motion, to state that the lump sum alimony was for support. The chancellor stated in a post-trial hearing “If the $50,000 was meant for property settlement, I’d have said property settlement.” He also stated “I’m not changing it. I did not change one thing in this motion.” We find that the chancellor had discretion to explain the meaning of the lump sum alimony awarded to Ms. Seymour in the divorce decree.

2. Dischargeability of alimony

¶ 7. Mr. Seymour contends it was incorrect for the trial court judge to determine that alimony is a nondischargeable debt in bankruptcy in the post-trial hearing. We agree that the determination of whether lump sum alimony is dischargea-ble is left to a United States Bankruptcy Court. To that extent, whatever the chancellor indicated on dischargeability is not controlling.

¶ 8. The purpose of Mr. Seymour’s arguments here is to take the chancellor out of the decision process in bankruptcy proceedings on whether the $50,000 lump sum alimony is dischargeable. The best answer to that complaint is that the chancellor is undisputably outside the bankruptcy decision process. Whatever the bankruptcy rules may be, the chancellor in his initial decision was entitled to award lump sum alimony. In a revised decision, he said that the alimony was for support.

¶ 9. There is nothing extraordinary or nefarious about characterizing any form of alimony as being for support. Lump sum alimony is a final, unmodifiable award of money that at least in part is intended to support the recipient spouse. The Supreme Court has identified four factors needed for assessing the propriety of an award of lump sum alimony, at least two of which directly relate to the need for support: “Where recipient spouse has no separate income or the separate estate is meager by comparison,” and “[wjithout the lump sum award the receiving spouse would lack any financial security.” Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988).

¶ 10. We find no error in procedure or in substantive law in the chancellor’s decision to identify this alimony as being for the purpose of support. What may ultimately occur in bankruptcy court as a result of that label is for the bankruptcy court to decide.

¶11. THE JUDGMENT OF THE CHANCERY COURT OF THE FIRST JUDICIAL DISTRICT FOR HARRISON COUNTY IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: MYERS, J., for the Court.

text:
    Larry D. EADES, Appellant, v. Kathy Lyn EADES, Appellee.
    No. 2002-CA-00751-COA.
    Court of Appeals of Mississippi.
    Sept. 23, 2003.
    Rehearing Denied Jan. 6, 2004.
    Certiorari Denied April 8, 2004.
    Phillip M. Whitehead, Booneville, attorney for appellant.
    Jak McGee Smith, Tupelo, attorney for appellee.
    Before MCMILLIN, C.J., MYERS and GRIFFIS, JJ.
   MYERS, J., for the Court.

¶ 1. Larry Eades appeals his incarceration for contempt asserting that the chancellor abused his discretion and committed manifest error in ordering him jailed for civil contempt by failing to consider his inability to pay.

STATEMENT OF FACTS

¶ 2. Larry and Kathy Eades were married for fourteen years. The two obtained an irreconcilable differences divorce in 1998. According to the property settlement agreement, Larry was to pay lump sum and periodic alimony, maintain various insurance policies for Kathy’s benefit, provide fencing for twenty acres of property, and make payments on a truck and horse trailer. Larry received, pursuant to the settlement agreement, the exclusive use and possession of the marital home and the sixty-three acres upon which it sits, ownership of sixteen horses, a horse trailer, and other personal property.

¶ 3. In early 2000, Larry stopped making the periodic alimony payments and filed a petition for modification of the settlement agreement to eliminate the alimony obligations. He based his petition on the accusation that Kathy was now living with someone and was being cared for by that person. Kathy filed a complaint for contempt alleging that Larry had not provided the fencing and had failed to pay the alimony. The chancellor denied Larry’s request to eliminate the alimony finding that Kathy did not live with, nor was she being provided for by another person. On March 22, 2001, the chancellor ordered Larry to pay the past due alimony and complete the other requirements of the separation agreement.

¶ 4. Larry made the past due payments, but he failed to continue making alimony payments after the March 22 order, failed to provide proof of life insurance on himself for Kathy’s benefit, and failed to provide the fencing. On October 17, Kathy filed another complaint for contempt. Larry never filed a response alleging his inability to pay. The chancellor found him in contempt on November 16. Larry was ordered to pay $15,936 by November 23 or be incarcerated. Larry then filed for bankruptcy protection and initiated this appeal. Kathy sought and was granted the right to have the bankruptcy stay lifted. The chancellor ordered Larry to be incarcerated till he paid the amount owed.

LEGAL ANALYSIS

¶ 5. In reviewing a citation for contempt, an appellate court must first determine whether the alleged contempt is either civil or criminal in nature. Dennis v. Dennis, 824 So.2d 604, 608(¶ 7) (Miss. 2002). If the purpose of the finding of contempt is to enforce the rights of private litigants or an order of a court, the contempt is civil. Purvis v. Purvis, 657 So.2d 794, 796 (Miss.1994). In this case, the contempt is civil in nature. A finding of civil contempt is subjected to manifest error review. Dennis, 824 So.2d at 608(117).

¶ 6. Larry provided testimony that he was unable to pay the amount owed. A litigant is entitled to offer evidence of an inability to pay as a defense to the incarceration of a civil contempt action. Riser v. Peterson, 566 So.2d 210, 211-12 (Miss.1990). The contemnor has the burden to prove his inability to pay and the showing must be made with specificity and not general terms. Clements v. Young, 481 So.2d 263, 271 (Miss.1985). At the November 2001 hearing,, Larry testified that he was in arrears on the alimony payments and that it was his intention to make the payments when he returned to gainful employment. Larry testified that the downturn in the economy had left him unemployed. The fact is that Larry has been unemployed since 1995. He was unemployed when he agreed to the original property settlement agreement. Larry also testified that he had not made an attempt to get a job from the time he had entered the separation agreement till the present.

¶ 7. Larry also testified there were now twenty horses instead of sixteen, only one of which was originally owned by his new wife, but now, all of which are owned by his new wife. Larry also testified that the house and the land were part of a lease purchase agreement but that he is no longer the owner of the agreement. His new wife is now the sole owner of the lease purchase agreement on the house and property.

CONCLUSION

¶ 8. We hold that the chancellor considered Larry’s financial situation and committed no manifest error in rejecting Larry’s defense. The chancellor exercised the discretion granted and properly held Larry in contempt.

¶ 9. THE JUDGMENT OF THE CHANCERY COURT OF ITAWAMBA COUNTY IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. COSTS ARE ASSESSED TO THE APPELLANT.

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


author: LEE, J., for the Court.

text:
    Frank Adam SEIGFRIED, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01488-COA.
    Court of Appeals of Mississippi.
    Oct. 21, 2003.
    Rehearing Denied Feb. 3, 2004.
    Certiorari Denied April 8, 2004.

      Jim Davis, Columbia, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES, THOMAS and LEE, JJ.
   LEE, J., for the Court.

PROCEDURAL HISTORY

¶ 1. On May 7, 2001, Frank Adam Seig-fried was indicted by a Harrison County grand jury on the charge of sexual battery without consent. After a jury trial in August 2002, Seigfried was convicted on the charge and sentenced to serve twenty years in prison. His motion for new trial or in the alternative a judgment notwithstanding the verdict was denied. He appeals to this Court arguing that the verdict was against the overwhelming weight of the evidence, that the court erred in denying his requested jury instructions, that the court erred in allowing a video receipt into evidence, and that the cumulative effect of errors deprived him of a fair trial. Having reviewed each issue, we find no merit and affirm.

FACTS

¶2. On the evening of November 10, 2000, fourteen-year-old J.M., sixteen-year-old B.V., and B.V.’s forty-nine year-old friend, Frank Adam Seigfried, got together with plans to do yard work at Seig-fried’s home, then have a sleepover. The three went to a store, Seigfried bought whiskey, then they went to Seigfried’s home and drank the liquor. Later, Seig-fried and the boys went to a video rental store and rented three movies, including two pornographic movies which Seigfried selected. Once back at Seigfried’s home, the three drank more whiskey and watched the movies. Seigfried talked about “gay stuff’ and bragged on the number of sexual encounters he had, which made the boys uncomfortable.

¶ 3. The boys left Seigfried’s home and went to a casino to play video games for a few hours before returning to Seigfried’s home. When the boys returned, Seigfried was in bed, and they went to another room where the television was located to sleep for the night. J.M. was on the floor, and B.V. was on the couch. Later, Seigfried entered the room, laid down next to J.M. and began stroking him. He unzipped J.M.’s pants and performed an act of fellatio on him. No consent was asked for or given. J.M. testified that he did not ask Seigfried to stop because, “I felt very weird, and felt like I was going to die, because I had a lot of things went through my head.” J.M. testified that Seigfried next went to B.V., but J.M. did not look to see what happened between them because he was in shock and spent the remainder of the night crying.

¶ 4. The following morning, the three went to a casino for breakfast. After-wards, the boys told B.V.’s sister what had happened, then told the police the same day.

DISCUSSION

I. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 5. Seigfried first argues that the verdict was against the overwhelming weight of the evidence and that he is entitled to a new trial. We look to our standard of review:

“In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.... Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury.

Brady v. State, 722 So.2d 151(¶ 19) (Miss. Ct.App.1998) (citations omitted).

¶ 6. Seigfried moved for a directed verdict at the close of the State’s evidence, arguing that J.M.’s testimony was uncorroborated and contradictory to prior statements he had made, and the State had failed to prove that the act was done without consent. The judge found a directed verdict was not in order since sufficient evidence was presented to allow the jury to decide the case. After the verdict was announced, Seigfried filed a motion for a new trial or in the alternative a judgment notwithstanding the verdict. Therein, he raised the same issues brought in his motion for directed verdict and argued the court erred in denying certain jury instructions, among other things. After a hearing, the motion was denied.

¶ 7. Seigfried’s main argument in this issue concerns whether the State proved J.M. failed to consent. Seigfried’s indictment lists Section 97-3-95(l)(c) as the charging statute. Under part (c) of section (1), Seigfried is guilty of sexual battery if he sexually penetrates, “[a] child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child.... ” Miss.Code Ann. § 97-3-95(l)(c) (Rev. 2000). The language of the indictment, however, charges that Seigfried, “did wil-fully, purposely, unlawfully and feloniously commit Sexual Battery upon J.M., without the consent of the said J.M., by engaging in the act of sexual penetration, to wit: by performing fellatio on the said J.M.” This language is reflective of section (l)(a) of the statute, not (l)(e). Section (l)(a) fails to mention age but simply states that a person is guilty of sexual battery if he engages in sexual penetration with another person without his or her consent. The State proceeded at trial to prosecute Seig-fried on section (l)(a) which includes the consent element.

¶ 8. Seigfried argues that the State failed to prove that J.M. failed to consent and cites the following facts in support of his argument: both boys felt free to come and go from Seigfried’s home as evidenced by their trek to the casino arcade; J.M. testified that he did not say no to Seig-fried’s advances, nor did he try to stop him; J.M. did not act like a fearful or intimidated child, since he openly drank liquor with Seigfried; and no evidence was presented to show that Seigfried threatened J.M. The State rebuts that, although J.M. testified that he acquiesced to Seig-fried’s actions out of fear, such acquiescence is not consent. Plus, J.M.’s testimony was corroborated by the testimony of his friend, B.V., by J.M.’s act of crying after the event and by J.M.’s reporting of the incident to the police the day after it happened; therefore, the State claims the case was sufficient to submit to the jury.

¶ 9. A rape victim’s uncorroborated testimony alone is sufficient where it is consistent with the circumstances. McKnight v. State, 738 So.2d 312(¶ 10) (Miss.Ct.App.1999). Although we recognize that this is a case of sexual battery and not rape, here, J.M.’s testimony was corroborated by B.V., plus it was not discredited nor contradicted. Whether or not J.M. consented was for the jury to determine based on evidence presented to them. Failure to resist a sexual advance out of perceived fear of bodily harm has been shown to negate allegations that such inaction constituted consent. See Hull v. State, 687 So.2d 708, 723 (Miss.1996).

¶ 10. The jury was told how J.M. cried after the fact, how he felt intimidated into submission, and how he was under the influence of alcohol during the episode. Although J.M. failed to show that Seigfried threatened him or assaulted him in any way, save the act at issue, the jury was able to view this evidence and the demean- or of the witnesses in determining whether or not J.M.’s actions constituted consent. Accordingly, we will not disturb the verdict.

II. DID THE COURT ERR IN REFUSING AND GRANTING CERTAIN JURY INSTRUCTIONS?

¶ 11. Seigfried argues that the court erred in refusing certain of his requested jury instructions and in granting one of the State’s instructions which misstated the law.

In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.... The main query is whether (1) the jury instruction contains a correct statement of the law and (2) whether the instruction is warranted by the evidence.

Sanchez v. State, 792 So.2d 286 (¶¶ 6-7) (Miss.Ct.App.2001).

a. Instruction D-7

¶ 12. Seigfried first argues that the court erred in refusing his requested instruction D-7 which stated:

The Court instructs the Jury that consent is a defense to a Sexual Battery charge. Consent may be manifested by signs, actions, or facts, or by inaction or silence, from which arises an inference that the consent has been given. It exists where a person by his line of conduct has shown a disposition to permit another person to do a certain thing without raising objection thereto.
The State has the burden to prove that [J.M.] did not consent to the Defendant’s acts on November 11, 2000. If the State has failed to prove beyond a reasonable doubt that [J.M.] did not consent to the Defendant’s acts of November 11, 2000, then you must return a verdict of not guilty.

¶ 13. Seigfried argued to the trial court that in refusing to give this instruction, the judge effectively took away his ability to defend himself since this instruction reflected the major theory of his case, which was that J.M. consented. The State referred the judge to McKnight v. State, 738 So.2d 312 (Miss.Ct.App.1999). In McKnight, the judge refused to grant the exact same instruction as Seigfried’s requested D-7. We affirmed the refusal and quoted the following rules:

[A]n instruction which instructs the jury on the law, according to the facts, is sufficient, and a duplicate instruction in different words, requested by the defendant, is not required. Also, a court is not required to instruct the jury over and over on a point of law, even though some variations are used in different instructions. If the jury is fairly instructed by other instructions, the refusal of similar instructions is not reversible error.

McKnight, 738 So.2d at 319 (¶24) (citations omitted). In the present case, the judge commented that the phrase “without consent” is easily grasped, and the jury could certainly grasp the definition of the phrase. Also, the judge noted that in light of McKnight, the instruction was not needed.

¶ 14. Seigfried makes much of the fact that during deliberations the jury sent a note to the judge which read, “in regard to a minor what is concent [sic].” The judge sent a note back to the jury which responded, “You have received all of the evidence and have been instructed as to the law. Please resume your deliberations.” After sentencing, the issue of the jury note came up again. The judge noted the following with regard to instruction D-7 and the jury’s note:

Well, that instruction has nothing to do with the inquiry from the jury. That instruction simply gave some examples of what could or could not be — what may or may not be consent. That instruction had nothing to do with a minor. And this note strictly states “In regard to a minor, what is consent?”
The way the case was indicted, it was indicted as if it was a sexual battery charge against — with the victim being an adult. And it’s the Court’s opinion that all that did was place a greater — or an additional element that the State had to prove, lack of consent. And so I don’t think that instruction was necessary or needed.

¶ 15. Seigfried was not indicted for sexual battery against a minor, but on a general charge; thus, the jury’s confusion was misplaced. Wherever the judge’s confusion lay with regard to the State’s need to prove consent or lack thereof, the issue of consent was covered in instruction S-l which was given and read:

The Court instructs the Jury that the Defendant, FRANK ADAM SEIG-FRIED, is charged in an indictment with the crime of Sexual Battery.
If you find from the evidence in this case beyond a reasonable doubt that:
1. On or about November 11, 2000, in the Second Judicial District of Harrison County, Mississippi,
2. The Defendant, FRANK ADAM SEIGFRIED, did willfully, purposely, unlawfully and feloniously commit Sexual Battery upon J.M., without the consent of the said J.M.,
3.By engaging in the act of sexual penetration, to wit: by performing fellatio upon the said J.M.,
then you shall find the Defendant, FRANK ADAM SEIGFRIED, Guilty of Sexual Battery.
If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the Defendant Not Guilty of Sexual Battery.

¶ 16. As stated earlier, so long as the instructions fairly announce the law, duplicate instructions on the same point are not needed. Instruction S-l noted above reflected the statutory language, and the judge found that the jury could “easily grasp” the basic meaning of consent; thus, any additional instruction was not warranted.

¶ 17. The matter of the victim’s status as a minor was not an issue, since the State proceeded through the trial on the premise that he was an adult. We find the judge’s response to the jury’s question to be without error. Also, we find no fault in the judge’s denial of instruction D-7, in light of McKnight and in light of the fact that the issue of consent was addressed in instruction S-l, which was given.

b. Instruction D-I

¶ 18. Seigfried also requested Instruction D — 4 which instructed on the lesser-included offense of assault. We look to the definition of what constitutes a lesser-included offense:

Whether applied for the benefit of the State or defense, in order to authorize such instruction the more serious offense must include all the elements of the lesser offense, that is, it is impossible to commit the greater offense without at the same time committing the lesser included offense. Also, there must be some evidence to support the lesser included offense.

Trigg v. State, 759 So.2d 448(¶ 8) (Miss.Ct.App.2000).

¶ 19. Seigfried’s requested instruction described three possible verdicts which could be reached including guilt of sexual battery, guilt of simple assault, or not guilty. The instruction then described elements of each offense. Seigfried argued to the judge that the State failed to prove that J.M. did not consent, and without such proof he could, at most, be guilty of simple assault; thus, the instruction was needed. In refusing this instruction, the court stated that, “in this case, the only testimony has been one specific act that I don’t think leads to any interpretation other than whether or not the act occurred, or whether it did or did not occur, and then therefore — and subsequently, whether or not it was with or without consent.” Thus, the judge found no evidentiary basis for the instruction on assault, as required by Trigg.

¶ 20. Further, in Trigg, this Court addressed whether simple assault could be a lesser-ineluded offense of sexual battery:

It seems clear that the more serious offense of sexual battery does not include all of the elements of simple assault. In fact, they are quite dissimilar in that one could conduct a sexual battery against a person and not commit simple assault because the element of “bodily injury” is missing from the sexual battery statute. Therefore, simple assault does not seem to qualify as a lesser-ineluded instruction of sexual battery.

Id. at (¶ 9). No bodily injury was shown here, nor was any other evidence submitted to support the jury’s finding of simple assault rather than sexual battery. We find the trial court did not err in refusing instruction D-4.

III. DID THE TRIAL COURT ERR IN ADMITTING A RECEIPT PROM A VIDEO STORE?

¶ 21. Seigfried complains that the trial court erred in allowing the State to introduce into evidence a receipt from a video store where he allegedly rented three videotapes — the movie, “The Patriot,” and two pornographic movies.

Our standard of review regarding whether the trial court committed error in the admission of particular evidence is well settled. The trial judge has considerable discretion in determining the admissibility of evidence. We will not reverse the trial court’s decision merely because of an erroneous evidentiary ruling. Rather, the appellant must demonstrate that he was effectively denied a substantial right by the evidentiary ruling before a reversal is required. There must be a showing that the trial judge abused his discretion and that “the admission or exclusion of evidence ... results in prejudice and harm or adversely affects a substantial right of a party.”

Kidd v. State, 793 So.2d 675(¶ 27) (Miss.Ct.App.2001) (citations omitted). Seigfried claims the receipt which corroborated J.M.’s testimony was not properly authenticated and, thus, was inadmissible.

¶22. In his argument, Seigfried questions the manner in which the receipt was obtained. Investigator Earl Grimes of the Biloxi Police Department went to the video store where Seigfried had allegedly rented videotapes. He presented a subpoena duces tecum to the store manager and was given a pile of receipts from Seigfried’s account to examine. In the pile, Officer Grimes found a receipt dated November 10, 2000, for “The Patriot” and for two pornographic videos, which both J.M. and B.Y. testified were the three videos rented by Seigfried.

¶ 23. On appeal to this Court, Seigfried argues that the receipt was inadmissible without a custodian of records from the video store testifying as to the authenticity of the receipt. The trial judge ruled the receipt admissible based on Officer Grimes’s testimony that he obtained the receipt after presenting a properly executed subpoena duces tecum from the justice court. Additionally, the judge found sufficient indicia of trustworthiness, citing to Mississippi Rule of Evidence 902(ll)(a)’s concluding sentence which states with regard to self-authentication of records of regularly conducted activities, “Such records are not self-authenticating if the sources of information or the method or circumstances of preparation indicate lack of trustworthiness.”

¶24. Rule 901(a) of the Mississippi Rules of Evidence states, “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” We note the previously stated standard of review concerning the trial court’s considerable discretion in admitting evidence. Having reviewed the circumstances under which the receipt was obtained, Officer Grimes’s testimony concerning the same, and the judge’s ruling as dictated in the record, we find the judge did not abuse his discretion in admitting the evidence. This issue is without merit.

IV. DID THE CUMULATIVE EFFECT OF ERRORS DEPRIVE THE APPELLANT OF A FAIR TRIAL?

¶25. Seigfried finally argues that the cumulative effect of errors he raises on appeal deprived him of a fair trial. Having found no error with other issues he raises on appeal, we find this issue to be without merit.

¶ 26. THE JUDGMENT OF THE SECOND JUDICIAL DISTRICT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY WITHOUT CONSENT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . The boys were minors at the time of the incident, and we use initials to protect their identities.

      . Officer Grimes testified that the receipt for the three movies was dated November 11, 2000, and no receipt was found in the pile from November 10, which was the date the boys were with Seigfried. However, in our review of this receipt, we note the officer's apparent confusion in that the actual receipt states at the bottom, “TODAY IS Friday 11/10/2000 6:54 p.m.,” but the due date for return of the movies is listed beside their titles as Saturday, November 11, 2000.


author: McMILLIN, C.J., for the Court. IRVING, J.,

text:
    Eric OWENS, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01385-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2004.
    Rehearing Denied April 6, 2004.

      Brian H. Neely, Tupelo, attorney for appellant.

      Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   McMILLIN, C.J., for the Court.

¶ 1. Eric Owens has appealed his conviction in the Circuit Court of Lee County for sale of cocaine. He purports to raise six issues on appeal that warrant reversal of his conviction. We find that four of the issues are without merit. We further find that the remaining two issues were abandoned for failure to frame the issues with sufficient specificity or to support the contentions raised in those issues with argument based on logic or citation to supporting authority. We, therefore, affirm Owens’s conviction.

¶ 2. Because none of the issues properly before this Court deal directly with the evidence of guilt, it is unnecessary to recite the underlying factual basis that led to Owens’s indictment, trial, and conviction.

I.

Batson Challenge

¶ 3. Owens contends that the State, over his timely objection, systematically excluded African American venire members from serving on the jury through the use of its peremptory challenges in violation of the holding in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In actuality, defense counsel’s only assertion on the record was that the State had exercised one of its peremptory strikes to eliminate Melissa Cayson, alleged by defense counsel to be a black female. The prosecutor responded that he had struck Ms. Cayson because she was the only potential juror who had responded on the jury questionnaire that she was unemployed and that the prosecutor was unaware that she was African American and, in fact, had been informed after the challenge was presented that Ms. Cayson was not, in fact, an African American.

¶ 4. The trial court, without conducting any further factual inquiry to determine the venire member’s race, disallowed Owens’s Batson challenge.

¶ 5. Once a Batson challenge is raised, the trial court is charged to first determine whether a prima facie case of discriminatory strikes has been made. Id. at 96, 106 S.Ct. 1712. Only if the court concludes that a prima facie case has been established should it require the prosecutor to state race-neutral reasons for having struck potential jurors belonging to the relevant racial group. Id. at 97, 106 S.Ct. 1712.

¶ 6. In this case, the assertion was that the State was systematically excluding African American jurors; however, the sole alleged factual basis for that assertion was that Ms. Cayson had been struck and that she was a member of the affected racial group. Other than defense counsel’s assertion, there is no evidence to establish the fact of Ms. Cayson’s race. This assertion was countered by the prosecution’s contrary view that, insofar as the State knew, Ms. Cayson was not, in fact, an African American. Defense counsel made no further effort to establish the factual basis for his contention even though the determination of this disputed fact would have been quite easy to accomplish since the affected venire member had not yet been excused.

¶ 7. On these facts, we determine that the trial court was correct in denying the Batson challenge on the basis that Owens had not satisfactorily established a prima facie case of discriminatory exercise of peremptory strikes by the prosecution.

II.

Challenge for Cause

¶ 8. Owens also alleges that the trial court committed reversible error when it failed to allow his challenge for cause to Juror 52, Elizabeth Murphy. Owens challenged her for cause based on her revelation during voir dire that she had previously been the victim of a crime.

¶ 9. This issue is without merit for several reasons.

¶ 10. First of all, the record does not affirmatively show that Juror 52 served on the jury. Actual service on the jury by the incompetent juror is one of the essential prerequisites for appellate relief on this ground. Chisolm v. State, 529 So.2d 635, 639 (Miss.(1988)).

¶ 11. Secondly, even if it is conceded for sake of argument that Juror 52 did serve, there is no evidence that the defense was forced to accept her because it had exhausted its peremptory challenges when Juror 52 was reached. Id.

¶ 12. Finally, the trial court enjoys substantial discretion in ruling on challenges for cause. Berry v. State, 703 So.2d 269, 292(¶ 85) (Miss.1997). After reporting that she had been a crime victim, Juror 52 was further questioned and affirmatively stated that she could remain an objective juror nevertheless. The trial court, having heard her representations, apparently found them to be genuine. We can find nothing in this record that would indicate that this ruling constituted an abuse of the discretion afforded the trial court in matters such as this.

III.

Amendment to Indictment

¶ 13. The State originally sought to amend the indictment to seek enhanced punishment under Section 99-19-81 of the Mississippi Code on the basis that Owens was an habitual offender with at least two prior felony convictions. Owens contends on appeal that this violated his constitutional right to be charged through an indictment by a grand jury.

¶ 14. Again, Owens is plainly wrong for two equally compelling reasons. First, before sentencing occurred, the State formally abandoned its motion to amend the indictment, and therefore, Owens was not subjected to enhanced punishment based on his prior criminal record. Secondly, it is well established in this state that an amendment to the indictment to allege the offender’s status as an habitual offender subject to enhanced punishment is not a substantive amendment requiring grand jury action but may be allowed by the trial court on proper motion by the prosecution. URCCC 7.09; Mitchell v. State, 792 So.2d 192, 201-02 (¶¶ 31-32) (Miss.2001); Ellis v. State, 469 So.2d 1256, 1257 (Miss.1985).

IV.

Denial of Continuance

¶ 15. The morning of trial, defense counsel moved for a continuance based on his contention that the confidential informant in the case may have been a former client and that this represented a conflict of interest that might hinder the vigor with which he would be able to cross-examine the informant if she appeared as a State’s witness. However, in his brief, Owens appears to abandon this contention and cites only authority that it is error to deny a continuance if the result is that the defense has inadequate time to prepare for trial, citing United States v. Scott, 48 F.3d 1389 (5th Cir.1995), reh’g and suggestion for reh’g en banc denied, 56 F.3d 1387 (5th Cir.1995), and cert. denied, 516 U.S. 902, 116 S.Ct. 264, 133 L.Ed.2d 187 (1995).

¶ 16. On these facts, we consider the issue regarding defense counsel’s prior professional relationship with a potential witness for the State to have been abandoned on appeal. We further find that the general contention of lack of time to adequately prepare for trial is procedurally barred because it was not presented to the trial court for resolution and was, instead, raised for the first time on appeal. Mitchell v. Glimm, 819 So.2d 548, 552(¶ 11) (Miss.Ct.App.2002) (citing Gatlin v. State, 724 So.2d 359, 369(1143) (Miss.1998)).

V.

Final Two Issues

¶ 17. Owens purports to raise two final issues regarding (a) denial of his requested jury instructions and allowance of the State’s requested instructions and (b) the failure to grant certain defense motions. The defendant’s brief of these two issues consists of broad general assertions regarding both contentions. The brief does not point out what particular instructions were improperly refused or allowed or state in what particular manner the court’s ruling affected the fundamental fairness of the trial. Similarly, beyond a statement that the court erred in denying “the numerous Defense motions,” the brief does not identify those motions by citation to the record or otherwise, nor does it offer any argument as to how the denial of these motions prejudiced Owens in the presentation of his defense.

¶ 18. It is the duty of the appellant to state with some particularity the facts forming the basis for his contentions, including a citation to the portion of the record where those facts may be discovered. Randolph v. State, 852 So.2d 547, 557-58 (¶¶ 28-30) (Miss.2002). It is also the appellant’s duty to present an argument that is persuasive and, where appropriate, is supported by citations to authority establishing the validity of his contentions. Id. Because Owens has failed to meet the burden placed on him as appellant as to these two issues, we decline to consider them further.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS SUSPENDED, AND POST-RELEASE SUPERVISION FOR FIVE YEARS, PAY A FINE OF $10,000 AND RESTITUTION OF $120 IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

IRVING, J.,

concurring in part and dissenting in part:

¶ 20. I agree with the opinion of the court regarding its treatment of the Bat-son issue. However, I continue to believe, as I have expressed in prior separate writings, that striking a juror because he is unemployed violates the public policy of this state as expressed by the legislature in Mississippi Code Annotated section 13-5-2 (Rev.2002) which states:

It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity in accordance with this chapter to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose. A citizen shall not be excluded from jury service in this state on account of race, color, religion, sex, national origin, or economic status.

(emphasis added).

If 21. While it is true that the Mississippi Supreme Court has held in a number of eases that striking a juror because he is unemployed does not violate Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), I am not aware of any case by our supreme court construing section 13-5-2 with respect to its proscription against excluding a juror because of economic status. I do not think it is reasonably debatable that striking a juror because he is unemployed is striking the juror because of his economic status. One’s unemployment affects and determines his economic status.

¶ 22. Although Batson does not address the constitutionality of, peremptory strikes based on economic status, it does not preclude the states from circumscribing other juror statuses which may not be subject to peremptory strikes. In enacting section 13-5-2, it seems obvious to me that our legislature has determined that peremptory strikes based on economic status are illegal in Mississippi. Therefore, I dissent from that portion of the Court’s opinion which inferentially approves the striking of juror Cayson because of her economic status.