author: BRANTLEY, J.,

text:
    M.C. GHOLSTON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01794-COA.
    Court of Appeals of Mississippi.
    Oct. 15, 2002.
    Rehearing Denied Nov. 26, 2002.
    Certiorari Denied April 17, 2003.

      H. Lee Bailey, Jr., Winona, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before McMILLIN, C.J., MYERS, and BRANTLEY, JJ.
   BRANTLEY, J.,

for the court.

¶ 1. M.C. Gholston was convicted by a Montgomery County Circuit Court of statutory rape of a fourteen-year-old. Aggrieved, Gholston appeals, arguing that he was denied his right to a speedy trial and that the verdict was not unanimous. Finding no error, we affirm.

FACTS

¶ 2. On July 21, 2000, the victim attended a dance with her brother. After the dance, they decided to go to their grandmother’s home to call their parents because they were running late. Gholston, the siblings’ cousin, offered to drive the victim to make the call while her brother took a man to a club. However, Gholston did not take the victim to her grandmother’s home, but drove down a dirt road where he raped her. The victim’s brother found them later and took her home after she told him that Gholston had raped her. Her mother then took her to the hospital, at which time a rape kit was performed.

¶ 3. Gholston was arrested and a suspect kit was performed on him. He was indicted and brought to trial. At trial, the victim, her brother and mother testified as to the events of that night. In addition, an expert testified that to a reasonable certainty the semen found on the victim was that of Gholston. The jury found him guilty of statutory rape.

¶4. Post-trial motions were filed and denied. On appeal, Gholston argues that he was denied his constitutional right to a speedy trial. In addition, he argues that the jury verdict was not unanimous due to one juror’s response when the jury was polled in open court.

ANALYSIS OF THE ISSUES PRESENTED

I. WHETHER GHOLSTON WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.

¶ 5. Gholston argues that this case should be dismissed because he was denied his constitutional right to a speedy trial. The important dates are as follows:

07/23/00 Arrested
10/10/00 Indicted
10/19/00 Agreed Order of Continuance Filed
03/06/01 Attorney Jones Motion to Withdraw
03/16/01 Assertion of Right to a Speedy Trial
03/30/01 Order for Continuance Filed
10/11/01 Trial began

¶ 6. A defendant has a constitutional right to a speedy trial. Watts v. State, 733 So.2d 214, 235(¶ 61) (Miss.1999). This right attaches from the time that the defendant is effectively accused of the crime. Perry v. State, 419 So.2d 194, 198 (Miss.1982). On appeal, we review alleged speedy trial violations “on a case-by-case basis due to the factual specifics of each action.” Brengettcy v. State, 794 So.2d 987, 991(¶ 7) (Miss.2001).

¶ 7. An alleged denial of the constitutional right to a speedy trial is examined under the four prong test set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Mitchell v. State, 572 So.2d 865, 870 (Miss.1990). “The factors to be considered are: (1) length of delay; (2) reason for the delay; (3) whether the defendant has asserted his right to a speedy trial; and (4) whether defendant was prejudiced by the delay.” Barker, 407 U.S. at 530, 92 S.Ct. 2182. The Barker factors are balanced while considering the totality of the circumstances. Birkley v. State, 750 So.2d 1245, 1249(¶ 12) (Miss.1999) (citing DeLoach v. State, 722 So.2d 512, 516(¶ 14) (Miss.1998)).

(a) Length of delay

¶ 8. Gholston was arrested for statutory rape on July 23, 2000. His trial began on October 11, 2001. Approximately 444 days had passed between the initial arrest and trial. The Mississippi Supreme Court has held that any delay of the 270-day rule beyond eight months is presumptively prejudicial. McGhee v. State, 657 So.2d 799, 802 (Miss.1995). Therefore, the length of delay was presumptively prejudicial to Gholston.

(b) Reason for delay

¶ 9. After a finding that the delay is presumptively prejudicial, we now turn to the reason for said delay. As for the approximate three month delay from the date of arrest until the date of indictment on October 10, 2000, this time counts against the State. An agreed order for a continuance was entered on October 19, 2000, which any delay would not count against the State. Gholston was arraigned and a plea of not guilty was entered on November 15, 2000.

¶ 10. The next date to appear on the docket was March 2001. During March, Gholston’s first attorney withdrew from the case and another continuance was granted. This continuance was filed on March 30, 2001, due to the fact that the DNA testing had not been completed. It should also be noted that the terms of court for the Circuit Court of Montgomery County are for three weeks in April and three weeks in October. Accordingly, after his arrest, depending on available court dates, Gholston could have been tried during the October term, however an agreed continuance was entered. Then during the next term another continuance for good cause was granted. Gholston’s trial began during the next term in October.

¶ 11. Any delays due to court congestion or scheduling weigh against the State, but not heavily. Barker, 407 U.S. at 531, 92 S.Ct. 2182. Additionally, any delays attributed to waiting for the completion of DNA test results should weigh only slightly against the State due to the possible exculpatory evidence for Gholston. Gray v. State, 728 So.2d 36, 48(¶ 34) (Miss.1998). Therefore, this factor only weighs slightly against the State due to the agreed continuance from the October 2000 term to the March 2001 term which subtracts approximately 130 days from the delay. All other delays only weigh slightly against the State as the delays where due to scheduling and DNA reports.

(c) Assertion of right

¶ 12. The third Barker factor concerns Gholston’s assertion of his right to a speedy trial. Gholston asserted his right to a speedy trial on March 16, 2001, through his second attorney, This factor weighs in Gholston’s favor.

(d) Prejudice to the defendant

¶ 13. The Mississippi Supreme Court has stated:

Prejudice of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system .... The prejudice prong of the Barker analysis encompasses interference with a defendant’s liberty and actual prejudice in defending his case.

State v. Magnusen, 646 So.2d 1275, 1284 (Miss.1994). In his brief and during the motion to dismiss hearing, Gholston claimed that the delay in trial resulted in an extensive loss of his freedom due to his incarceration from the date of the charge, although bond had been set, and he had suffered great anxiety and embarrassment due to the charges against him. Although Gholston was incarcerated from the date of his arrest through the date of his trial, bond had been set for his release, which meant that it was possible for him to leave prison if he so chose.

¶ 14. As to the actual prejudice Ghol-ston claimed to have suffered in attempting to defend his case, he stated no specific details concerning such prejudice suffered. Undoubtedly Gholston did suffer anxiety and embarrassment stemming from the fact that he was charged with statutory rape of his fourteen-year-old cousin. However, this Court has noted that, “[wjhile anxiety of the accused is a cause of concern, where there is no other prejudice asserted on the defendant’s part, this factor has little weight in his favor.” Estes v. State, 782 So.2d 1244, 1250(¶ 13) (Miss.Ct.App.2000). Accordingly, for the purposes of this analysis, we find this fourth factor weighs strongly in the State’s favor.

¶ 15. Turning now to the balancing of these four factors, we find that the first continuance was agreed upon by both parties. The second delay due to the State waiting on the completion of the DNA test, although weighs slightly against the State, must be considered with the fact that the test may have excluded the defendant as the attacker. We cannot find that Ghol-ston was harmed by the delay from his arrest to this trial; accordingly, we find no violation of Gholston’s constitutional right to a speedy trial.

II. WHETHER THE GUILTY VERDICT WAS UNANIMOUS.

¶ 16. Gholston asserts that the jury verdict was not unanimous when the jury came into open court to announce their verdict. After the verdict was read by the trial judge, the jury was polled and the following occurred when asking one of the jurors if he agreed with the verdict: COURT: And you in the black suit here?

JUROR: I guess.
COURT: Well, no. I mean, if you don’t agree with the verdict then I can send you back in to deliberate some more. JUROR: That’s fine.
COURT: So you’re saying you do agree with the verdict?
JUROR: (Nodding head.)

Gholston argues that the trial judge erred by “threatening” the juror with further deliberations instead of sending the jurors back for further deliberations and by failing to do so, a mistrial should have been granted. However, the State argues that the verdict was unanimous.

¶ 17. The Mississippi Supreme Court has set forth guidelines for dealing with this type of situation. Morgan v. State, 370 So.2d 231, 232 (Miss.1979). In Morgan, the court stated the following:

We are of the opinion that when the individual juror expressed a doubt as to whether he was voting his convictions in response to the instructions of the court or whether he was voting the way he did, contrary to his convictions, so as not to be unpopular with his fellow jurors, the judge should not have cut the juror off from expressing his feelings. The judge should have allowed the juror to express himself and then inquired whether the juror desired additional time in which to consult with his fellow jurors, or he could have declined to poll the jury further and returned the jury for further deliberation.

Id. Here, the trial judge explained that if the juror needed more time, then the jury could return for further deliberation. However, the juror then agreed with the verdict by affirmatively nodding his head. We cannot find that exchange between the juror and trial judge was in error or coercive in nature. Nor did the trial judge err in his handling of the matter. Therefore, we find that the verdict was unanimous and that this assignment of error has no merit.

¶ 18. THE JUDGMENT OF THE MONTGOMERY COUNTY CIRCUIT COURT OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. SENTENCE IS TO RUN CONSECUTIVELY TO ANY SENTENCE PREVIOUSLY IMPOSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONTGOMERY COUNTY.

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


source: Caselaw Access Project

author: KING, P.J.,

license: Public Domain

text:
    Victor Bernard KEARLEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00374-COA.
    Court of Appeals of Mississippi.
    Oct. 22, 2002.
    Rehearing Denied Jan. 7, 2008.
    Certiorari Denied April 17, 2008.

      James A. Williams, Meridian, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., IRVING, and BRANTLEY, JJ.
   KING, P.J.,

for the court.

¶ 1. Victor Bernard Kearley was found guilty in the Lauderdale County Circuit Court of sexual battery. He was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections with fifteen years suspended, five years to serve, and five years of supervised probation after being released from custody. Aggrieved by his conviction, Kearley has appealed and raised the following issues:

I. Whether the trial court made comments prejudicial to Kearley’s defense.
II. Whether Kearley was denied a fair trial as a result of the ineffective assistance of counsel.
III. Whether the trial court improperly excluded evidence of the alleged victim’s character and thereby deprived Kearley of a fair trial.
IV. Whether the trial court failed to require proper authentication of the alleged correspondence from Kearley to the victim.
V. Whether the sexual battery statute violated the privacy rights of Kearley and the victim.

FACTS

¶ 2. On March 26, 2000, Tina, then fifteen years of age, was riding in the car with Victor Kearley. Kearley, who was born March 13, 1962, was thirty-eight years of age.

¶ 3. The primary purpose of Kearley’s trip was to obtain the title to his truck. After doing so, Kearley drove to an isolated area and parked. He then kissed Tina, lifted her shirt and rubbed her breasts, unzipped her pants and placed his hand in her pants. Tina declined his attention, and then Kearley drove to a store to purchase gas.

¶ 4. While at the store, Kearley bought Tina a wine cooler. They then drove to the Dalewood storage barn and got out of the car. Once out of the car, Kearley again kissed Tina, opened her pants, and this time inserted his finger into her vagina. In response to Kearley’s directive that they get on the back seat, Tina said, “no, that was enough.” Rebuffed by Tina, Kearley simply stared at her for a while, and then drove home.

¶ 5. After this incident, Kearley sent several very explicit computer e-mail messages to Tina. He also delivered, or caused to be delivered, to Tina several letters regarding the nature of his feelings for her.

¶ 6. Tina did not tell her parents about the incident of March 26, or the subsequent correspondence from Kearley. However, she did inform a friend of this incident the following day.

¶ 7. In May 2000, while discussing other matters with her mother, Tina inadvertently told her of the incident with Kearley. Her parents took her to the Lauderdale County Sheriffs Office to file a complaint against Kearley. At the sheriffs office, they were interviewed by Officer Tracy Hill Watts, who was assigned to investigate this matter.

¶ 8. On July 25, 2000, Kearley was indicted on a charge of sexual battery, pursuant to Mississippi Code Annotated Section 97-3-95(1) (Rev.2000). He was found guilty on January 25, 2001.

ISSUES AND ANALYSIS

I.

Whether the trial court made comments prejudicial to Kearley’s defense.

¶ 9. Kearley contends that his right to a fair trial was prejudiced by comments made by the trial judge. While Kearley’s assertions on this issue are somewhat rambling, it appears that he argues that he was prejudiced by (1) the trial judge’s reference to a party who did not testify as “a witness,” (2) the trial judge’s direction to the State to lay a proper foundation before seeking the admission of e-mail messages, (3) the references to Tina as the “victim” in jury instructions C-8 and C-9, (4) the use of the phrase “should you find” in the jury instructions, and (5) the trial judge’s questioning the relevance of information of the victim’s less than pristine character.

¶ 10. The record does not reflect that Kearley objected to any of these matters at trial, and accordingly they are not properly before this Court. An appellate court may only review those matters properly preserved for appeal during trial. Sanchez v. State, 792 So.2d 286(¶ 18) (Miss.Ct.App.2001).

¶ 11. Even had these issues been properly preserved for appellate purposes, they are totally devoid of merit.

II.

Whether Kearley was denied a fair trial as a result of the ineffective assistance of counsel.

¶ 12. Kearley identified seven areas in which he claims his attorney’s performance was ineffective. They are: (1) that his attorney characterized the case as one where it was “the female’s word against his,” (2) that his attorney failed to “vigorously challenge the State’s witnesses” and failed to put on character witnesses, (3) that questions asked of the victim advanced consent as a defense, (4) that attacking the e-mails’ authenticity with a defense that someone else could have created them even though Kearley had admitted to sending the e-mails during discovery amounts to ineffective assistance of counsel, (5) that his attorney failed to object to leading questions to Tina by the State, (6) that his attorney failed to object to leaving a female on the jury who had previously rendered a guilty verdict in a rape case and a murder case, and (7) that he received ineffective assistance of counsel due to his attorney’s failure to challenge the fact that the sexual act occurred.

¶ 13. This Court finds no merit in Kearley’s claims of ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that (1) his attorney’s performance was substandard and (2) that a proper performance by his attorney would have caused a different result. Clemons v. State, 732 So.2d 883(¶ 35) (Miss.1999). This Court sees nothing about defendant’s claims, which even if accepted as true, would have had the likely effect of changing the outcome of this case.

III.

Whether the trial court improperly excluded evidence of the alleged victim’s character and thereby deprived Kearley of a fair trial.

¶ 14. Kearley argues that the trial court should have allowed evidence of Tina’s character to establish that she was not an “innocent child,” but rather a very young but worldly woman. The trial court properly excluded this evidence of prior bad character, because it was not relevant or material to the charge of sexual battery under Section 97-3-95(l)(c) of the Mississippi Code Annotated (Rev.2000). This provision reads:

(1) A person is guilty of sexual battery if he or she engages in sexual penetration with:
(a) Another person without his or her consent;
(b) A mentally defective, mentally incapacitated or physically helpless person;
(c) A child at least fourteen (Ik) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child; or
(d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.

Miss.Code Ann. Section 97—3—95(1) (c) (Rev.2000)(emphasis added).

¶ 15. Under the provisions of 97-3-95(l)(c), sexual battery is committed if there is sexual penetration (1) of a child at least fourteen but less than sixteen, (2) by a person at least thirty-six months older than the child. The evidence presented to the trial court established that (1) Kearley inserted his finger in Tina’s vagina, (2) that she was fifteen years of age when this occurred and (3) that he was thirty-eight years of age when this occurred.

¶ 16. That Tina’s character was less than sterling was not a defense to sexual battery under Section 97~3~95(l)(c) of the Mississippi Code Annotated (Rev.2000), and was therefore neither relevant nor material.

IV.

Whether the trial court failed to require proper authentication of the alleged correspondence from Kearley to the victim.

¶ 17. Kearley claims that the e-mails and two letters were not properly authenticated as to origin and should not have been admitted. He claims the e-mails were of “an inflammatory nature” and were more prejudicial than probative. Kearley further maintains that it was unfair to use his e-mails to Tina since none of Tina’s e-mails to him were introduced.

¶ 18. Mississippi Rule of Evidence 901(a) states that “[t]he 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.” Todd v. State, 806 So.2d 1086(1126) (Miss.2001).

¶ 19. Tina testified that Kearley sent her e-mails which she received on her computer. The State moved to introduce the e-mails and Kearley objected based on authentication and hearsay. Outside the presence of the jury, the trial judge determined that the e-mails and letters were admissible and had been adequately authenticated under M.R.E. 1001 and M.R.E. 1003. The trial judge found that the witness had vouched for the accuracy of the e-mail printouts and the document that was hand-delivered to her. Officer Hill-Watts testified that Kearley admitted that he sent the e-mails to Tina as well.

¶ 20. Given these facts, we find that the trial judge did not err in his decision and find this issue to be without merit.

V.

Whether the sexual battery statute violated the privacy rights of Kearley and the victim.

¶ 21. Kearley asks this Court to find Section 97 — 3—95(l)(c) of the Mississippi Code Annotated (Rev.2000) unconstitutional because Mississippi allows marriage of fifteen-year-olds and by extension the consent to sexual acts. This issue was not presented to the trial court, and is therefore not properly before this Court. Walker v. State, 729 So.2d 197 (¶ 13) (Miss.1998). However, it is clearly without merit.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIFTEEN YEARS SUSPENDED, FIVE YEARS TO SERVE, FIVE YEARS OF SUPERVISED PROBATION AND FINE OF $5,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

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

      . Due to the age of the victim and the nature of the offense, her real name is not being used for purposes of this opinion.

      . Instruction C-8: The Court instructs the Jury that sexual penetration includes the insertion of any part of the body or any object into the genital or anal opening of the victim. A child under the age of sixteen (16) years is not legally capable of consenting to sexual contact with a person who is more than thirty six [sic] (36) months older. Consent or willingness on the part of a victim under the age of sixteen (16) years, where the Defendant is more than thirty six [sic] (36) months older is no defense to Sexual Battery.

      . Instruction C-9: The Court instructs the Jury that, should you find from the evidence in this case, beyond a reasonable doubt that:
      1. On or about the 26th day of March, 2000 in Lauderdale County, Mississippi;
      2. The Defendant, Victor Kearley, a male person over the age of 18 years, did wilfully and unlawfully engage in sexual penetration with Tina [name changed in opinion due to age], a female child between the ages of fourteen (14) years and sixteen (16) years by placing his placing [sic] his finger in her vagina;
      3. And the Defendant was more than thirty six [sic] months older than the victim; at the time; then it is your sworn duty to find the Defendant guilty of Sexual Battery.
      Should the State fail to prove any one or more of these essential elements beyond a reasonable doubt, then you shall find the Defendant not guilty of Sexual Battery.

      . M.R.E. 1001 provides: For purposes of this article the following definitions are applicable:
      (1) Writings and Recordings. “Writings” and “recordings” consist of letters, words, or numbers, or their equivalent set down by handwriting, typewriting, printing, photostat-ing, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
      (2) Photographs. "Photographs” include still photographs, x-ray films, video tapes, and motion pictures.
      (3) Original. An "original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original” of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original.”
      (4)Duplicate. A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction or by other equivalent techniques which accurately reproduce the original.

      . M.R.E. 1003 provides: A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.


author: CHANDLER, J.,

text:
    Clinton L. CRESSIONNIE a/k/a Tony Roberts, Appellant, v. Emmitt L. SPARKMAN, Appellee.
    No. 2002-CP-00212-COA.
    Court of Appeals of Mississippi.
    Jan. 21, 2003.
    Rehearing Denied April 22, 2003.
    Clinton Cressionnie (Pro Se), attorney for appellant.

      Office of the Attorney General by: Jane L. Mapp, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Clinton Cressionnie has appealed the denial of his application for writ of habeas corpus. Finding no error, we affirm.

FACTS

¶ 2. Lamar County law enforcement officials detained Cressionnie on a grand larceny charge. Cressionnie escaped from custody and stole a truck and two bicycles. He was recaptured and indicted by a Lamar County grand jury for felony escape and two counts of grand larceny. Before trial, Cressionnie escaped once again and fled to the State of Florida, where he committed more crimes. On June 18,1996, Florida officials apprehended Cressionnie for the Florida crimes and discovered the pending Mississippi charges. Mississippi was notified that Cressionnie was in custody, and Mississippi prosecutors timely filed an extradition request for Cression-nie’s person.

¶ 3. Florida executed a warrant for Cressionnie’s detention and extradition to Mississippi, but elected to retain Cression-nie’s person until resolution of the Florida charges. Mississippi prosecutors made periodic inquiries of Florida prison officials as to when Cressionnie might be released and extradited. On July 31, 1998, Cres-sionnie completed his Florida sentence and was extradited to Mississippi. Cressionnie was tried and convicted of the three pending charges in the Lamar County Circuit Court. Cressionnie appealed, and this Court affirmed his conviction and sentence on March 20, 2001. Cressionnie v. State, 797 So.2d 289, 294 (¶ 18) (Miss.Ct.App.2001).

¶ 4. On November 19, 2001, Cressionnie filed an application for writ of habeas corpus in the Circuit Court of Sunflower County. Cressionnie argued that his imprisonment by the State of Mississippi is illegal because, under federal extradition law, he was untimely extradited to Mississippi. The circuit court denied the application, finding that the delayed extradition did not violate extradition laws. The court held that, because Cressionnie was serving a sentence in Florida for crimes committed there, Florida had no obligation to return Cressionnie until completion of that sentence. The trial court further found that Cressionnie was promptly extradited to Mississippi upon completion of the Florida sentence. Cressionnie now appeals pro se from the denial of the application.

LAW AND ANALYSIS

¶ 5. The source of authority for extradition of a fugitive from one state to another is U.S. Const, art. IV, § 2, cl. 2. Federal extradition law is codified at 18 U.S.C.A. § 3182, which states that:

Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District, or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District, or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.

Id.

¶ 6. The statute prescribes the process for interstate extradition of a fugitive from justice. The demanding state must properly request rendition of the fugitive. Then, the asylum state must arrest and secure the fugitive, and notify the demanding state. An agent of the demanding state must appear within thirty days from the date of the arrest to take custody of the fugitive. If the agent does not appear within thirty days, the fugitive may be discharged.

¶ 7. Cressionnie argues that the statute required that Mississippi produce its agent within thirty days from the date of his arrest in Florida. This argument ignores the fact that the statute, and its thirty day requirement, apply when the sole basis for the asylum state’s detention of a fugitive is the demanding state’s extradition request. In the case sub judice, Cressionnie’s detention was based upon crimes he had committed in Florida as well as on Mississippi’s extradition request. “[A] sovereignty, or its courts, having possession of a person or property cannot be deprived of the right to deal with such person or property until its jurisdiction and remedy is exhausted and no other sovereignty, or its courts, has the right or power to interfere with such custody or possession.” Lunsford v. Hudspeth, 126 F.2d 653, 655 (10th Cir.1942).

¶ 8. In light of this principle, an asylum state may postpone extradition until the resolution of criminal charges incurred by the fugitive during his refuge in the asylum state. See, e.g., Paley v. Bieluch, 785 So.2d 692, 694 (Fla.Dist.Ct.App.2001). In Smothers v. State, our supreme court adopted well-settled federal law that a fugitive has no standing to challenge an arrangement between two states as to the order of his prosecution and execution of sentences. Smothers v. State, 741 So.2d 205, 207 (¶ 10) (Miss.1999) (citing Chunn v. Clark, 451 F.2d 1005, 1006 (5th Cir. 1971)). In this case, Florida and Mississippi elected to allow Cressionnie to complete his Florida sentence before extradition for trial in Mississippi. Under Smothers, Cressionnie lacks standing to challenge the order of prosecution and sentencing arranged by the states. Id. At completion of the Florida sentence, Mississippi had thirty days in which to present its agent for extradition, or risk Cression-nie’s discharge by Florida. 18 U.S.C.A. § 3182. However, extradition occurred the day that Cressionnie completed the Florida sentence and, therefore, was timely. Id.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY DISMISSING WITH PREJUDICE AN APPLICATION FOR A WRIT OF HABEAS CORPUS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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

      . One of Cressionnie's arguments on appeal was that his right to a speedy trial was violated because Mississippi did not make a diligent effort to bring him to trial after his speedy trial demand. Cressionnie, 797 So.2d at 291(114). This Court found that Cressionnie’s right to a speedy trial was not violated; though the trial court erred by failing to consider available procedures to effect a speedy return of Cressionnie's person, the error was harmless because the failure did not significantly delay Cressionnie's Mississippi trial. Id. at 293 (¶¶ 12-13).


text:
    Jared Gregory MASSEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00034-COA.
    Court of Appeals of Mississippi.
    Jan. 21, 2003.
    Rehearing Denied April 22, 2003.
    Jared Gregory Massey (Pro Se), attorney for appellant.
    Office of the Attorney General, by Scott Stuart, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. Jared Massey pled guilty to manslaughter and was sentenced to a term of twenty years’ incarceration with eight years suspended. The appeal now before us was taken from the circuit court’s order denying Massey relief on a petition for writ of error coram nobis. Massey asserted in his petition and reiterates in this appeal that (1) he received ineffective assistance of counsel, (2) his guilty plea was involuntary and unintelligently made and (3) he was coerced in his confession during police interrogation. The circuit court, without going to the merits of Massey’s assertions, held that the petition actually constituted a motion cognizable under Mississippi’s post-conviction statutes and dismissed the petition as an impermissible second filing for relief under the statute. We agree that the petition is procedurally barred and affirm the circuit court’s dismissal order.

FACTS

¶ 2. Sixteen-year-old Jared Massey shot and killed Paul Lee Williams on April 20, 2000. He was indicted by a grand jury for murder. On February 20, 2001, he pled guilty to manslaughter and was sentenced to twenty years’ imprisonment with eight years suspended.

¶ 3. On August 1, 2001, Massey filed a motion for post-conviction relief claiming that due to his age he was entitled to have been dealt with as a minor. On September 19, 2001, the circuit court denied his motion.

¶ 4. On September 27, 2001, Massey filed a subsequent petition for writ of error coram nobis. He claimed that his plea was involuntary because he was mentally incompetent. He also claimed ineffective assistance of counsel considering his attorney allowed him to plead guilty knowing of his mental state. The circuit court denied his motion stating that Miss.Code Ann. § 99-39-8 abolished the common law writs relating to post-conviction collateral relief, including error coram nobis. On November 26, 2001, Massey filed a notice of appeal.

LAW ANALYSIS

I. WAS PETITIONER DENIED A FAIR TRIAL AS A RESULT OF INEFFECTIVE ASSISTANCE OF COUNSEL?

II. WAS PETITIONER’S GUILTY PLEA MADE INVOLUNTARILY, UNKNOWINGLY, AND UNIN-TELLIGENTLY THEREFORE DENYING HIM HIS DUE PROCESS RIGHTS UNDER THE CONSTITUTION?

III. WAS PETITIONER’S CONFESSION COERCED DURING POLICE INTERROGATION?

¶ 5. We combine the issues asserted by Massey into one issue as follows:

I. DID THE TRIAL COURT ERR IN DENYING MASSEY’S SUCCESSIVE PETITION FOR POST-CONVICTION RELIEF?

¶ 6. According to section 99-39-23(6) of the Mississippi Code, the denial of relief is “a bar to a second or successive motion(s).” Miss.Code Ann. § 99-39-23(6) (Rev.2000). Although there are exceptions, Massey has failed to show one here.

Excepted from this prohibition is a motion filed pursuant to Section 99-19-57(2), Mississippi Code of 1972, raising the issue of the convict’s supervening insanity prior to the execution of a sentence of death.... Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

Miss.Code Ann. § 99-39-23(6) (Rev.2000).

¶ 7. In a petition for post-conviction relief, the petitioner carries the burden of proving that his claim is not procedurally barred, and Massey has failed to overcome this burden with an exception fitting under the Post-Conviction Relief Act. Lockett v. State, 614 So.2d 888, 893 (Miss.1992).

¶ 8. Massey’s claims are that his counsel was ineffective considering his attorney knew that he suffered from a mental disorder and allowed him to plea, that his guilty plea was not knowingly, voluntarily or intelligently made because of his mental condition and that his confession was coerced during police interrogation. Massey’s claims do not fall within the statutory exceptions. The trial judge did not err in dismissing the motion.

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

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


author: McMILLIN, C.J.,

text:
    John S. BALLARD, Appellant, v. Cynthia N. BALLARD (Schmitz), Appellee.
    No. 2001-CA-01566-COA.
    Court of Appeals of Mississippi.
    Feb. 4, 2003.
    Rehearing Denied April 22, 2003.

      George M. Mitchell, Jr., Eupora, attorney for appellant.
    Ford Andrew Howell, Jackson, William Charles Cunningham, Columbus, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. This is an appeal from a judgment entered in a post-divorce proceeding in Webster County Chancery Court. John Ballard, as movant in the trial court, sought to modify an existing child support order to lower the amount periodically due. He also sought to modify the child visitation provisions of the divorce judgment. The chancellor ordered some, but not all, of the modifications relating to visitation but declined to modify the child support order. Dissatisfied, Mr. Ballard has appealed, asserting that the chancellor erred in refusing to lower child support and refusing to require his former wife to pay a portion of the travel expenses related to visitation. We find that these determinations were within the realm of discretion given to the chancellor in such matters and, on that basis, we affirm.

I.

Facts

¶ 2. John and Cynthia Ballard were divorced in 1997 on the grounds of irreconcilable differences. Pursuant to formal agreement between the parties, Mrs; Ballard (now Mrs. Schmitz) was awarded custody of the couple’s only child, Hunter Elizabeth Ballard, subject to visitation rights in favor of Mr. Ballard as set out in the agreement. Mr. Ballard committed to pay $150 per week in child support, and to reimburse Cynthia for medical insurance premium costs. Mrs. Schmitz remarried in 2001 and relocated her residence from Eupora, Mississippi to Brookhaven, Mississippi.

¶ 3. Mr. Ballard subsequently filed a motion to modify the chancellor’s order, alleging that a material change in circumstance had occurred since the entry of the original judgment. In regard to child support, he claimed that his income had been substantially reduced in the aftermath of á leg injury sustained shortly after the divorce. Mr. Ballard requested the court to reduce his weekly support obligation from $150 to a figure more in keeping with his reduced earnings. As to visitation, Mr. Ballard contended that his former wife’s permanent relocation of her residence approximately two hundred miles away created an unanticipated financial hardship on him in exercising his rights of visitation. He sought to have Mrs. Schmitz pay a portion of the resulting travel costs incurred by him.

II.

Modification of Child Support

¶ 4. Mr. Ballard broke his leg in a horse-riding accident shortly after the divorce. The injury required him to be off work for an extended period of time. He testified that, upon returning to his place of employment, he was reassigned to a different job that paid less than the $40,000 annual salary he had been receiving. No evidence was offered as to how much the new position would have paid. Dissatisfied with the situation, Mr. Ballard quit the job and, instead, started his own business as a contractor for home building, remodeling, and repair.

¶ 5. Mr. Ballard testified that, because of generally depressed economic conditions in the area, he experienced difficulty in obtaining sufficient work and his new business was struggling economically. The only concrete evidence of his altered financial condition was a copy of his tax return for calendar year 2000. That document showed gross income of $67,906 and a taxable income of $6,836 after a deduction of $42,154 in self-employment business costs and another $18,916 in various deductions. Mr. Ballard claimed that, in order to meet his child support obligations in the time after his injury, he had incurred almost $30,000 in credit card debt.

¶ 6. Though the hearing was held in September 2001, Mr. Ballard did not present any evidence of his self-employment income for 2001. Neither was there any indication that Mr. Ballard had sought to obtain alternate employment at a compensation level more in keeping with his earning abilities at the time of the divorce except Mr. Ballard’s own unsubstantiated contention that employment opportunities in the area were not good due to generally poor economic conditions.

¶ 7. The chancellor found that there was no basis to reduce child support based on the evidence. The chancellor further reached the conclusion that Mr. Ballard reasonably had the potential to earn a gross income at least equal to the $40,000 he was earning prior to his injury and that to lower child support on those facts would “negate the bargained for additional child support [above that shown due by application of the statutory guidelines] to which the father agreed.” Based on his assumptions regarding Mr. Ballard’s continuing wage earning capabilities, the chancellor found no material change in circumstance other than Mr. Ballard’s own decision to become self-employed. For that reason, the chancellor denied Mr. Ballard’s request to reduce the child support amount.

¶ 8. We do not find reversible error in either the chancellor’s findings of fact nor the subsequent application of the law to those facts. Mr. Ballard had the burden of demonstrating that there has been a material change in circumstance, not anticipated at the time of the original judgment, that would justify a downward modification of his child support obligations. Shaeffer v. Shaeffer, 370 So.2d 240, 242 (Miss.1979). However, this burden is not met by a showing of reduced income when that income was voluntarily chosen. Lahmann v. Hallmon, 722 So.2d 614 (¶ 28) (Miss.1998). The evidence is uncontradict-ed that Mr. Ballard voluntarily left his old employment. His claim of reduced compensation when he returned to work after recovering from his injury consisted solely of his own self-serving testimony. There was no evidence of what his allegedly reduced pay would be nor any plausible explanation as to why he could not return to similar duties at the same compensation level at some other place of employment. Nor was the evidence that Mr. Ballard’s self-employment income was substantially lower than he had earned in the past particularly convincing. For unexplained reasons, he failed to offer any proof as to what his income had been for the eight months immediately preceding the hearing. There was also evidence that Mr. Ballard had acquired horses and a horse trailer during the period in question — a fact that would reasonably cast doubt on his claims of severe financial distress.

¶ 9. The chancellor sits as fact-finder in matters of this sort. Fisher v. Fisher, 771 So.2d 364(¶ 8) (Miss.2000). The findings of fact made by the chancellor, when reviewed on appeal, are entitled to substantial deference based on the fact that the chancellor, hearing the evidence first hand, is best positioned to evaluate the credibility of the various witnesses. Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997).

¶ 10. In considering the evidence in that light, we conclude that the chancellor was operating within the range of discretion afforded in such matters when he determined that Mr. Ballard continued to have the ability to earn income substantially equal to what he was earning at the time of the divorce. “The law is well-settled that, if an obligor, acting in bad faith, voluntarily worsens his financial position so that he cannot meet his obligations, he cannot obtain a modification of support.” Parker v. Parker, 645 So.2d 1327, 1331 (Miss.1994).

¶ 11. “ ‘Bad faith’ has generally been defined as an obligor’s action to reduce income or assets for the purpose of ‘jeopardizing the interests of his children.’ ” Parker, 645 So.2d at 1331 (quoting Nelson v. Nelson, 225 Or. 257, 357 P.2d 536, 536 (1960)). We conclude that Mr. Ballard’s decision to decline to pursue other means of earning income that would enable him to meet an obligation to his children at a level that he voluntarily assumed at the time of divorce sufficiently meets the rule announced in Parker as to require us to confirm the chancellor’s ruling.

III.

Travel Expenses

¶ 12. In his second issue, Mr. Ballard asserts that the chancellor erred in refusing his request that Mrs. Schwartz be required to share his travel costs associated with exercising his right of child visitation. Mr. Ballard argues that, because his former wife’s decision to relocate herself and the child to a more distant location was purely voluntary, she should be required to share the added expenses he will incur in exercising visitation. The chancellor found that it was not in the child’s best interest to require the custodial parent to share travel expenses in that manner. However, the chancellor concluded that the change of residence did constitute a material change in circumstance in regard to visitation and allowed Mr. Ballard extended visitation time due to the distance he had to travel to visit his child.

¶ 13. Mr. Ballard contends that separation agreements are “quasi-contractual in nature” and that, because the Ballards’ separation agreement was formed at a time when the parties lived in relative proximity to each other, there was an implied provision that both parties would continue to maintain a residence reasonably close to the other. He argues that Mrs. Schwartz’s action of moving with the child to a more remote destination constitutes a breach of contract, for which a modification to suit the current situation would be appropriate.

¶ 14. We do not find this argument compelling. While some provisions of a divorce agreement have been considered contractual in nature — such as an agreement relating to the division of real property — provisions relating to child support, custody, and visitation remain subject to the chancellor’s authority to modify in the best interest of the child at any time upon a showing of changed circumstances under section 93-5-23 of the Mississippi Code of 1972. Stone v. Stone, 385 So.2d 610, 614 (Miss.1980). Thus, the issue presented by Mr. Ballard is not to be decided on principles of contract, but rather upon more traditional considerations of whether, based upon a showing of material change in circumstance, the proposed change is in the best interest of the child.

¶ 15. The chancellor enjoys substantial discretion in deciding visitation issues, guided essentially by the consideration of what arrangement is in the child’s best interests. Harrell v. Harrell, 231 So.2d 793, 797 (Miss.1970). In this instance, the chancellor found that it was in the child’s best interest to increase her father’s visitation rights, but found that it would not serve her best interests to require the custodial parent to pay a portion of the transportation costs associated with those visits. Such a conclusion finds support in the obvious notion that such a monetary contribution by the custodial parent would necessarily diminish funds available to that parent to provide for the child’s needs. That, alone, would appear to bring the chancellor’s decision within the realm of his discretion on the matter. That seems especially true when, as in this case, there was no evidence that the father’s ability to exercise his visitation rights might be adversely affected by the expense of traveling this extra distance, thereby damaging the parent-child relationship that the law strives to preserve, even in the circumstance of divorce. See, e.g., Cox v. Moulds, 490 So.2d 866, 870 (Miss.1986). When we conclude that the chancellor neither abused his discretion nor was his decision manifestly in error, our duty is to affirm. Martin v. Coop, 693 So.2d 912, 915 (Miss.1997). Finding that to be the situation in the matter now before us, we affirm the chancellor’s decision.

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

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


author: BRIDGES, J.,

text:
    Luther LADNER, Appellant, v. Ruby Joyce Stines LADNER, Appellee.
    No. 2001-CA-01771-COA.
    Court of Appeals of Mississippi.
    Feb. 18, 2003.
    Rehearing Denied April 15, 2003.

      Erik M. Lowrey, Hattiesburg, attorney for appellant.
    John D. Smallwood, Tupelo, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   BRIDGES, J.,

for the court.

¶ 1. In the swirling eddies of a divorce proceeding, Ruby Ladner obtained a judgment of divorce from Luther Ladner in the Pearl River County Chancery Court. The chancellor granted Luther’s motion for a new trial, and entered amended findings of fact, conclusions of law, and final judgment on June 18, 2001. Joyce appealed without supersedeas bond for an increase in her portion of the marital property; Luther did not cross-appeal nor did he file a su-persedeas bond.

¶ 2. Luther then refused to execute the appropriate quitclaim deeds to convey to Joyce the real property she was awarded as a result- of the divorce judgment. On September 10, 2001, Joyce filed a motion to divest title to real property. The court granted Joyce’s motion on October 18, 2001, and the Chancery Clerk of Pearl River County executed special commissioner’s deeds to the subject properties transferring title to Joyce on October 31, 2001.

¶ 3. Luther then filed an appeal on November 7, 2001. Joyce did not file a cross-appeal, nor a supersedeas bond. Luther also filed a motion to consolidate Joyce’s appeal from the divorce judgment and his appeal from the order of divestiture, which the Mississippi Supreme Court denied. Joyce filed a motion to strike notice of appeal in the divestiture, which the supreme court also denied.

STATEMENT OF ISSUES

I. DID THE COURT ERR IN ASSUMING JURISDICTION OF JOYCE LADNER’S MOTION TO DIVEST TITLE AFTER THE NOTICE OF APPEAL?

II. DID THE COURT ERR IN PERMITTING JOYCE LADNER TO EXECUTE ON THE DIVORCE JUDGMENT WHILE SHE WAS APPEALING SAID JUDGMENT?

ANALYSIS

I. DID THE COURT ERR IN ASSUMING JURISDICTION OF JOYCE LADNER’S MOTION TO DIVEST TITLE AFTER THE NOTICE OF APPEAL?

¶ 4. Luther assigns as error the chancery court’s assertion of jurisdiction over Joyce’s motion to divest title following her filing an appeal in the divorce. It is true that Joyce’s motion would have been better brought as a contempt action against Luther for failure to comply with the chancellor’s judgment of divorce. Luther’s conduct is ripe for a contempt action, particularly given the egregious nature of his refusal to accede to the chancellor’s judgment. However, the chancery court has access to broad equitable powers to enforce its judgments, including the power to forcibly divest parties of property according to its judgment. Parker v. Parker, 641 So.2d 1133, 1138 (Miss.1994).

¶ 5. Luther did not seek a stay either by filing a supersedeas bond or by appearance in the trial court or from the supreme court or this Court. M.R.A.P. 8. Tellingly, Luther did not appeal the judgment in the court below either. Even when an appeal is pending, the appellee may execute on the decree in the lower court, providing the appeal is without a supersedeas bond and that the court does not in any way broaden, amend, modify, vacate, clarify, or rehear the' decree. McNeil v. Hester, 753 So.2d 1057, 1075(¶ 68) (Miss.2000). Luther does not allege that the chancellor in any way acted to change his judgment.

¶ 6. Luther argues that the chancery court had no jurisdiction to enforce its judgment once Joyce perfected her appeal. However, Luther can cite no case law in his support that does not require either an appeal from the judgment by the aggrieved party or a supersedeas bond to stay execution. Consequently, we conclude that the chancellor did not err in divesting title from Luther.

II. DID THE COURT ERR IN PERMITTING JOYCE LADNER TO EXECUTE ON THE DIVORCE JUDGMENT WHILE SHE WAS APPEALING SAID JUDGMENT?

¶ 7. Luther argues that the court erred when it permitted Joyce to execute on the divorce judgment after she had appealed the judgment. In Mississippi, when an appeal is filed based on a judgment in our state courts and neither party files a supersedeas bond on the judgment, then either party can execute on the judgment in their favor. McNeil, 753 So.2d at 1075(¶ 68). A plaintiff may also appeal after accepting money due from a judgment when the plaintiff appeals solely to increase the amount due as part of the judgment. Taylor v. Morris, 609 So.2d 405, 408 (Miss.1992).

¶ 8. Luther did not cross-appeal, essentially conceding the judgment of the chancellor that Joyce was entitled to the amount of the judgment below. Luther also did not file a supersedeas bond. Consequently, the amount of the judgment is not in dispute, as Luther does not contest it. The chancellor was well within his discretion to order the divestiture of title to enforce the judgment. We find no error.

CONCLUSION

¶ 9. Luther Ladner sought to obstruct the execution of the chancery court’s judgment by appealing a motion brought by Joyce Ladner to compel Luther to accede to the order of the court. This appeal, brought on spurious legal grounds and based in a mean-spiritedness that betrays a vindictive heart, is almost certainly frivolous. We find that the chancellor committed no error, and affirm his judgment.

¶10. THE JUDGMENT OF THE CHANCERY COURT OF PEARL RIVER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Jerry MONROE, A/K/A Gerry Monroe, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01082-COA.
    Court of Appeals of Mississippi.
    Feb. 18, 2003.
    Rehearing Denied April 15, 2003.

      Jerry Monroe (Pro Se), attorney for appellant.
    Office of the Attorney General, by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   KING, P.J.,

for the court.

¶ 1. Jerry Monroe was convicted of murder for which he was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. He filed a petition for post-conviction relief, which was denied by the trial court. Monroe later filed a motion for an out-of-time appeal, which was denied. Aggrieved by this denial of relief, Monroe has appealed and assigned the following errors:

I. Whether he received ineffective assistance of counsel.
II. Whether the trial court erred in accepting an involuntary plea of guilty.

FACTS

¶ 2. On June 16, 1995, Monroe was indicted for the murder of Evelyn Harris. As an indigent, Monroe was provided with appointed counsel. After a three-day jury trial, which began on February 27, 1996, and concluded on February 29, 1996, Monroe was found guilty of murder. On March 1, 1996, the trial court sentenced Monroe to life imprisonment in the custody of the Mississippi Department of Corrections.

¶ 3. On March 1, 1999, Monroe filed a petition for post-conviction collateral relief and a motion for appointment of counsel. On June 9, 2000, the trial court dismissed his petition.

¶ 4. On January 17, 2001, Monroe filed a motion for an out-of-time appeal claiming that he was denied the right to a direct appeal, effective assistance of counsel, and that the trial court erred when it dismissed his petition for post-conviction relief. This motion was denied by the trial court on June 15, 2001. The trial court stated:

The Court finds that there has been no showing of excusable neglect, or otherwise, such as to justify an out-of-time appeal of the court’s final order of June 9, 2000. Even accepting the defendant’s statement that he did not receive the order until September 6, 2000, there is no showing why no action was taken by the defendant until in excess of four months passed from that date. The Court finds that the defendant is not entitled to an out-of-time appeal from the court’s final order of June 9, 2000. It is therefore ordered that the defendant’s motion is hereby denied.

From that denial of relief, Monroe has appealed.

ISSUES AND ANALYSIS

¶ 5. Before addressing Monroe’s issues, this Court will first address whether the trial court should have allowed Monroe’s out-of-time appeal.

¶ 6. Monroe was convicted on February 29, 1996, and sentenced on March 1, 1996. Monroe’s petition for post-conviction collateral relief was filed on March 1, 1999. The petition was dismissed on June 9, 2000. Monroe did not file his motion for out-of-time appeal from the denial of post-conviction relief until January 17, 2001. In order for Monroe’s motion to be considered it must meet the requirements of Mississippi Rule of Appellate Procedure 4.

¶ 7. Pursuant to M.R.A.P. 4(a), a notice of appeal shall be filed within thirty days after the date of entry of the judgment from which an appeal is taken. Monroe failed to file notice of appeal within the required thirty day period. Instead, he waited some eight months, and filed a motion for an out-of-time appeal. The trial court in its discretion may extend the time for giving notice of appeal, provided that the motion is filed not later than thirty days after the expiration of the time prescribed by M.R.A.P. 4. If an extension is requested within the initial thirty day period, it may be granted upon a showing of good cause. If requested beyond that period, the granting of such motion is dependent upon a showing of “excusable neglect.” M.R.A.P.4(g); Denton v. State, 762 So.2d 814 (¶ 4) (Miss.Ct.App.2000). Likewise, the trial court may under 4(h) reopen the time within which to appeal, as opposed to extending it under 4(g). To take advantage of the provisions of 4(h) the motion to reopen must be filed within 180 days of entry of judgment.

¶ 8. The trial judge noted that Monroe did not show “excusable neglect” or any other exception to justify allowing an out-of-time appeal of the court’s final order of June 9, 2000. Having reviewed the record, this Court finds that the trial judge did not abuse his discretion by denying Monroe’s request for an out-of-time appeal.

¶ 9. This Court’s review of the record suggests that Monroe’s request for post-conviction collateral relief lacked merit.

¶ 10. Monroe’s primary contention is that he received ineffective assistance of counsel. He claims (1) that his attorney advised him to plead guilty to murder after the jury had returned its verdict, (2) that his attorney failed to inform him of his right to appeal after a jury verdict, and (3) that his attorney failed to adequately investigate the case.

¶ 11. To prevail on the issue of ineffective assistance of counsel requires a showing that counsel’s performance was deficient and that Monroe’s defense was prejudiced due to counsel’s deficiencies. O’Halloran v. State, 731 So.2d 565 (¶ 9) (Miss.1999).

¶ 12. While the hearing was incorrectly-labeled a guilty plea hearing, it was in fact a sentencing hearing since Monroe was found guilty by a decision of the jury. At the sentencing hearing, Monroe stated that he was in fact guilty of the murder of Evelyn Harris. He now claims that the sentencing hearing was in fact a plea hearing, where the court was obligated to advise him of the consequences of his plea, and that the failure to do so rendered the plea involuntary. This issue is absolutely without merit as well. Monroe was convicted of murder after a jury trial. He did not enter a guilty plea prior to or during the trial which would have required advising him of the nature and consequences of a guilty plea. Magee v. State, 759 So.2d 464 (¶ 7) (Miss.Ct.App.2000).

¶ 13. We find that Monroe’s issues regarding failure to inform him of his right to appeal and failure of his attorney to investigate are without merit. Monroe bears the responsibility of offering proof of facts to support his claim of ineffective assistance of counsel. Howard v. State, 785 So.2d 297 (¶ 6) (Miss.Ct.App.2001).

¶ 14. THE JUDGMENT OF THE AM-ITE COUNTY CIRCUIT COURT DENYING OUT-OF-TIME APPEAL IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO AMITE COUNTY.

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

      . The trial court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.


author: IRVING, J.,

text:
    Kenyatta Donta CHEEKS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01537-COA.
    Court of Appeals of Mississippi.
    March 4, 2003.
    Rehearing Denied April 22, 2003.

      Azki Shah, Clarksdale, attorney for appellant.

      Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before THOMAS, P.J., IRVING and MYERS, JJ.
   IRVING, J.,

for the court.

¶ 1. Kenyatta Donta Cheeks appeals from a judgment entered in the Circuit Court of Madison County pursuant to a jury’s verdict which found Cheeks guilty of burglary of an automobile. In this appeal, Cheeks raises the following issues:

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING, OVER DEFENSE’S OBJECTIONS, EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS OF THE DEFENDANT IN VIOLATION OF RULES 403 AND 404(b) OF THE MISSISSIPPI RULES OF EVIDENCE. AND FURTHER, ERRED IN FAILING TO CHARGE THE TRIAL JURY SUA SPONTE WITH A LIMITING INSTRUCTION CONCERNING THE ADMISSION OF SUCH EVIDENCE.
II. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE VERDICT.
III. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO GIVE A CIRCUMSTANTIAL EVIDENCE INSTRUCTION TO THE JURY.
IV. WHETHER THE ASSISTANCE RECEIVED BY APPELLANT WAS INEFFECTIVE.

¶2. Finding no reversible error, we affirm.

FACTS

¶ 3. At approximately 2:30 a.m. on July 11, 2000, Officer Michael McGahey of the Ridgeland Police Department was parked in a clearing off of Old Canton Road observing the traffic as it passed by. He noticed a Buick LeSabre pass by several times within a short period. He took more notice of the LeSabre when it turned into Sunchase Apartments. About five to ten minutes later, the LeSabre came out and Officer McGahey then watched the LeSa-bre turn into Canton Square Apartments. The LeSabre then drove through the parking lot and stopped for a few seconds at every parking place within the parking lot. Officer McGahey found these actions suspicious and decided to question the occupants of the LeSabre.

¶ 4. When Officer McGahey approached the vehicle, he found that it was occupied by two individuals, a female driver and a male passenger. After observing the male passenger lying down in the back seat, Officer McGahey ordered both occupants out of the vehicle and attempted to obtain their identity. The female identified herself and presented photo identification. The male passenger identified himself and produced a driver’s license reflecting the same name he had given to the officer. As Officer McGahey questioned both of them, he found that their stories did not match regarding their reason for being at the Canton Square Apartments. Officer McGahey asked the male passenger to identify the owner of the vehicle. The male passenger first said he did not know, but he stated later that the vehicle belonged to his cousin, Kenyatta Cheeks. He eventually admitted that he was in fact Kenyatta Donta Cheeks. Officer McGa-hey arrested Cheeks for giving false information. Afterwards, the LeSabre was impounded and its contents were inventoried. Among the things found in the LeSabre was a JVC CD player that was in the dashboard but not wired to the car.

¶ 5. At 6:46 a.m., Officer Rick Miller, also of the Ridgeland Police Department, received a telephone call concerning an automobile burglary at Sunchase Apartments. Officer Miller took the burglary report and spoke to the victim. The victim described in detail the JVC CD player that was stolen and showed Officer Miller an owner’s manual for the CD player. Officer Miller was aware of the facts regarding the arrest of Cheeks by Officer McGa-hey and asked the victim to come down to the police department to visually identify the CD player. Once the victim positively identified the CD player that was taken out of Cheeks’s LeSabre as her stolen property, it was released to her. In addition to the victim’s visual identification of the CD player, the model number of the stolen CD player matched the model number in the owner’s manual that the victim had previously produced. Also scratch marks on the CD player taken from Cheeks’s vehicle matched the scratch marks found on the dashboard of the burglarized vehicle. Subsequently, Cheeks was charged with automobile burglary. Other pertinent facts will be related during the discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Evidence of Other Crimes, Wrongs, or Acts

¶ 6. The relevancy and admissibility of evidence are within the discretion of the trial judge, and the decision of the trial judge will not be reversed unless that discretion has been abused. Smith v. State, 656 So.2d 95, 98 (Miss.1995). However, this discretion of the trial court must be exercised within the boundaries of the Mississippi Rules of Evidence. Id. Under the rules, an “error may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of the party is affected.” M.R.E. 103(a). Unless the trial judge’s discretion is so abused as to be prejudicial to the accused, we will not reverse the ruling of the trial court. McGowan v. State, 706 So.2d 231, 243 (¶ 43) (Miss.1997).

¶ 7. Initially, we point out that the defense has failed to preserve the objection on appeal. Prior to the State calling its first witness, defense counsel and the State conferred with the trial judge concerning what the defense counsel deemed inadmissible evidence. Specifically, defense counsel asked the trial judge to disallow the introduction of evidence that Cheeks was in possession of a stolen vehicle, the LeSabre, with an altered vehicle identification number (VIN).

¶ 8. During its case-in-chief, the State did not mention that the vehicle in which Cheeks was arrested was in fact stolen. However, on direct examination of Cheeks, defense counsel questioned Cheeks on his knowledge that the LeSabre was a stolen vehicle at the time of his taking possession and the fact the VIN was altered. Accordingly, during the cross-examination of Cheeks, the State further questioned Cheek as to his knowledge of the altered VIN and asked if he played an active role in the alteration. Defense counsel did not object to the cross-examination of Cheeks on these facts.

¶ 9. The defense failed to properly preserve the issue of other crimes, wrongs, or acts for appeal. There was no evidence within the record where the defense counsel made any objection to the State’s cross-examination of Cheeks regarding the altered VIN. The defense only had a conference with the State and trial judge about the stolen LeSabre and the altered VIN. No motion or specific objection to the admittance of evidence of prior bad acts or wrongs was stated on the record by the defense. By failing to object on the grounds of prior bad acts, this issue is waived on appeal. Walker v. State, 671 So.2d 581, 605-6 (Miss.1995). Moreover, defense counsel opened the door for such questioning by the questions asked on direct examination. This issue lacks merit.

2. Sufficiency of the Evidence

¶ 10. Cheeks alleges that the State presented insufficient evidence to support a conviction for burglary of an automobile. Cheeks maintains that the State’s case was wholly circumstantial. Furthermore, Cheeks argues that the State did not produce a single eyewitness nor did he ever confess to the crime.

¶ 11. Not surprisingly, the State contends that there was ample evidence to prove Cheeks was the culprit. One of the most compelling pieces of evidence, according to the State, is the finding of the stolen CD player in Cheeks’s possession. The State explains that not only was Cheeks caught in the neighborhood where the automobile burglary occurred, but he had a dubious reason for being there. In addition, the State asserts that Cheeks lied about his name and owning the vehicle. Also, Cheeks was identified in the courtroom by Officer McGahey. Further, the State advances that Cheeks’s own testimony corroborated some of the facts testified to by the Ridgeland officers.

¶ 12. In challenges to the sufficiency of evidence, the standard of review requires that the evidence must be considered in the light most favorable to the State, and we accept all evidence as true. McRee v. State, 732 So.2d 246, 249(¶ 9) (Miss.1999). An appellate court may only reverse with respect to one or more of the elements of the offense charged, if the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty. Collier v. State, 711 So.2d 458, 461(¶ 1) (Miss.1998). If the evidence is found to be legally insufficient, then discharge of the defendant is proper. McRee, 732 So.2d at 249 (¶ 9).

¶ 13. In Murphy v. State, 566 So.2d 1201 (Miss.1990), the supreme court held that “[m]ere possession of stolen articles, by itself, is not enough to convict a person for the crime of burglary.” Id. at 1206.

¶ 14. In our case, we have more than mere possession. We have already set forth in this opinion the relevant evidence presented by the prosecution, and we will not repeat it here. Cheeks offered the testimony of his mother that she had previously seen a CD player in his vehicle. He also offered the testimony of Mark Russell who testified that he installed a CD player in Cheeks’s LeSabre. Suffice it to say that notwithstanding the evidence offered by Cheeks, the evidence offered by the State, if believed by the jury, was sufficient to sustain the verdict. Apparently, the jury accepted this evidence and rejected the evidence offered by Cheeks. This was well within the jury’s prerogative.

¶ 15. Our supreme court has held that “matters regarding weight and credibility to be accorded evidence are to be resolved by the jury.” McRee, 732 So.2d at 249 (¶ 9). Obviously, the jury did not give much weight to the testimony of Cheeks’s witnesses.

¶ 16. The supreme court in Shields v. State, 702 So.2d 380 (Miss.1997), put forth four factors to consider when analyzing the sufficiency of the evidence to support an inference of burglary. The factors to consider include:

1. The temporal proximity of the possession to the crime to be inferred;
2. The number or percentage of the fruits of the crime possessed;
3. The nature of the possession in terms of whether there is an attempt at concealment or any other evidence of guilty knowledge;
4. Whether an explanation is given and whether that explanation is plausible or demonstrably false.

Id. at 383. The first factor, the temporal proximity of possession, lends great strength to the inference that Cheeks committed the burglary. He was shown to have possession of the CD player a few hours before the burglary was reported. The second factor also lends strength to the inference. The only item reported stolen to Officer Miller was the CD player, and Cheeks was stopped with the CD player in his vehicle. The third factor detracts from the inference. Cheeks had the CD player sitting in the dashboard of his vehi- • cle. There was no attempt by Cheeks to conceal the CD player. Finally, the fourth factor supports the inference because, notwithstanding the fact that Cheeks offered an explanation for the CD player being in his LeSabre, the State’s evidence proved that the offered explanation was demonstrably false. Furthermore, as in Shields, Cheeks offered no proof that he bought the CD player or acquired it in another way, and, as in Shields, this lack of proof is fatal. Shields, 702 So.2d at 383. This issue lacks merit.

3. Circumstantial Evidence Instruction

¶ 17. This argument raises a question regarding the trial judge’s refusal to give a circumstantial evidence instruction. Again, Cheeks argues that the State did not produce a single witness to testify that he was the one who broke into the automobile. Furthermore, Cheeks contends that there was no direct evidence by way of confession.

¶ 18. Circumstantial evidence instructions are only proper when the State’s case is based wholly on circumstantial evidence, and that is not the case sub judice. Cheeks cites to Jones v. State, 797 So.2d 922 (Miss.2001), wherein the court observed the clarity of our law on the requirements for granting a circumstantial instruction. “[T]he law is clear in this state that where all the evidence tending to prove the guilt of a defendant is purely circumstantial, the trial court must grant a jury instruction that every reasonable hypothesis other than that of guilt must be excluded in order to convict.” Id. at 927 (¶ 21) citing Henderson v. State, 453 So.2d 708, 710 (Miss.1984).

¶ 19. While Cheeks cites the proper law, he fails to recognize that not all the evidence presented by the State was circumstantial. Officer McGahey was an eyewitness to much of Cheeks’s suspicious activity and confronted Cheeks essentially while this activity was transpiring.

¶ 20. In Boches v. State, 506 So.2d 254 (Miss.1987), the supreme court held that the testimony of officer concerning bales of marijuana found in automobile was direct evidence of the offense. Id. at 260. Therefore, the Boches court found that it was not necessary that a circumstantial evidence instruction be granted as to this element. Id. The supreme court in Hart v. State, 639 So.2d 1313, 1316 (Miss.1994), also upheld the trial court’s refusal to give a circumstantial evidence instruction where an officer’s testimony was used by the State as direct evidence.

¶ 21. This Court holds that the testimony of Officer McGahey, the arresting officer, is direct evidence. As previously recounted, Officer McGahey testified that he. found the CD player in Cheek’s vehicle. He also testified to a plethora of suspicious movements by Cheeks. There is no merit to this issue.

f. Effective Assistance of Counsel

¶ 22. The last issue argued by Cheeks concerns the performance of his trial counsel. He urges that his counsel was ineffective. The applicable standard of review in determining whether counsel was ineffective was enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Mississippi Supreme Court adopted the Strickland standard in Stringer v. State, 454 So.2d 468 (Miss.1984). To succeed on a claim of ineffective assistance of counsel, a defendant must prove under the totality of the circumstances, that (1) his attorney’s performance was defective and (2) the deficiency deprived the defendant of a fair trial. Id. at 476-77. Alleged deficiencies in assistance of counsel must be presented with “specificity and detail” in non-conclu-sory fashion. Perkins v. State, 487 So.2d 791, 793 (Miss.1986). Judicial review is highly deferential to the attorney, and there is a strong presumption that the attorney’s conduct fell within the wide range of reasonable professional assistance. Hiter v. State, 660 So.2d 961, 965 (Miss.1995). With respect to the overall performance of the attorney, “counsel’s failure to file certain motions, call certain witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy” and do not give rise to an ineffective assistance of counsel claim. Cole v. State, 666 So.2d 767, 777 (Miss.1995). ¶ 23.

¶ 23. In support his claim that his counsel was ineffective, Cheeks makes two arguments. The first argument is that his trial counsel opened the door as to the altered VIN and stolen vehicle. Cheeks contends that the VIN inquiry by his trial counsel was irrelevant to the crime charged. Moreover, Cheeks contends the State had not offered any evidence that the vehicle was stolen or possessed an altered VIN, but that his trial counsel pursued this matter to Cheeks’s detriment. Cheeks insists that his trial counsel prejudiced him by opening the door to such evidence because his ability to receive a fair trial was made impossible. Consequently, the jury had before it evidence of other crimes, and/or bad acts allegedly committed by Cheeks in addition to the charge of automobile burglary.

¶ 24. Conversely, the State propounds that the presentation by Cheeks’s trial counsel of the aforementioned testimony was clearly within the gambit of trial strategy. We agree. As previously stated in Cole, trial counsel is allowed much deference with respect to trial strategy. Id. at 777. But even if we were to hold that Cheeks’s counsel’s performance on this matter was defective, we would still be constrained to hold that Cheeks fails to sustain his burden of showing that he was deprived of a fair trial. There was very strong evidence which supports his guilt.

¶25. The second argument that Cheeks makes in support of his ineffective assistance of counsel claim is that his trial counsel failed to pursue a hearing on new and material evidence after filing the motion for a new trial. According to Cheeks’s appellate counsel, if trial counsel had pursued the motion, the trial court “would have been presented evidence showing that indeed [Cheeks] had purchased the CD player.” It is perplexing to this Court, to say the least, as to how this evidence can be characterized as “new and material evidence.” Surely, during the time of trial Cheeks had knowledge of whether he purchased the CD player and could have brought forth that evidence at trial. This issue is utterly without merit, as well as the other issues presented by Cheeks; consequently, we affirm the trial court on all issues.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF AUTOMOBILE BURGLARY AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . There is no evidence in the record of this charge being pursued by the State.


text:
    Creek SCOTT d/b/a Classic Coach, Appellant v. MAGNOLIA LADY, INC., d/b/a Lady Luck Rhythm & Blues Casino-Hotel, Appellee.
    No. 2002-CA-00428-COA.
    Court of Appeals of Mississippi.
    April 15, 2003.
    Charles M. Merkel, Jack R. Dodson, Clarksdale, for Appellant.
    Charles E. Webster, H. Hunter Twiford, Clarksdale, for Appellee.
   KING, P.J.,

FOR THE COURT:

¶ 1. The Coahoma County Circuit Court granted summary judgment for the defendant, Magnolia Lady, Inc., d/b/a Lady Luck Rhythm and Blues Casino-Hotel (Lady Luck) in this contract action, holding that the parties’ agreements were of such an indefinite nature as to preclude finding valid contract formation and breach of contract. Scott has appealed and set forth ten issues for this Court’s review. Finding them to be mutually inclusive, this Court has combined them, and states the issue as follows:

Whether the Circuit Court of Coaho-ma County committed error in holding that no contract had been formed, and accordingly granting summary judgment for the Lady Luck.

Finding no error, this Court affirms.

WHETHER THE CIRCUIT COURT OF COAHOMA COUNTY COMMITTED ERROR IN HOLDING THAT NO CONTRACT HAD BEEN FORMED, AND ACCORDINGLY GRANTING SUMMARY JUDGMENT FOR THE LADY LUCK.

FACTS

¶ 2. Beginning in late 1994 or early 1995, Creek Scott, d/b/a Classic Coach (Scott) began a business relationship with Lady Luck. The parties entered into a series of agreements, under which Scott would provide tour bus service to individuals who wished to gamble or secure hotel rooms at Lady Luck. This was done pursuant to a series of standard contracts, which only differed as to the number of rooms and the arrival and departure dates.

¶ 3. The contracts each required that Scott provide a deposit for the rooms. However, it became the practice of the parties to ignore several of the contract provisions, including the requirement of room deposit and the requirement that Scott sign and return the contracts to Lady Luck. As a practice, Scott never signed or returned the contracts, but merely maintained them in his files.

¶ 4. Under the practice followed by the parties, two or three days prior to the arrival of a tour bus, Scott would send Lady Luck a list of passengers, without a room deposit, and Lady Luck would hold the requested number of rooms. Even when Scott failed to fill the number of rooms for which he had contracted, Lady Luck did not enforce any of the penalty provisions of the contract or seek damages.

¶ 5. This pattern of business dealings continued until approximately February 1996, when Lady Luck became dissatisfied with Scott’s unilateral cancellations of bus tours and modifications of the number of rooms reserved. At that time Lady Luck wrote Scott and informed him that consistent with its “bus program” he would be required to execute written contracts and provide a deposit for each room reserved. Despite this notification, Scott continued to not execute written contracts or provide room deposits.

¶ 6. On May 5, 1997, Lady Luck wrote and informed Scott that it was enforcing a provision of the standard contract, which stated, “the agreement is tentative and subject to withdrawal until receipt by hotel of signed contract and deposit.” This provision was included in all of the contracts sent to Scott before and after February 1996, when Lady Luck informed Scott of its “bus program.” As a part of the May 5, 1997 notice, Lady Luck withdrew approximately sixty contract offers extended between September 5 and 10,1996, for bus tours during the period June through December of 1997.

¶ 7. On April 9, 1998, Scott initiated this breach of contract action, claiming to have relied on his past course of business dealings with Lady Luck.

¶ 8. The circuit court granted Lady Luck’s motion for summary judgment, characterizing the relationship between the parties as an agreement to agree to agree in the future, unsupported by any consideration.

¶ 9. Scott asks this Court to find reversible error in the trial court’s holding that no contract existed between Scott and Lady Luck. The formation of a contract, either oral or written, requires (1) an offer, (2) acceptance of the offer, and (3) consideration. Krebs v. Strange, 419 So.2d 178, 181 (Miss.1982).

¶ 10. There can be no question that Lady Luck extended to Scott an offer to contract. This was done by the submission to Scott for approval and signature approximately sixty separate written documents. It is equally beyond question that Scott failed to execute any of the approximately sixty separate written documents under which Lady Luck offered to do business with Scott.

¶ 11. Scott argues that valid and enforceable contracts existed, notwithstanding his failure to execute any of the proposed contracts. He suggests that the parties were obligated to continue the past course of conduct, under which Scott never signed any written contracts and never paid any room deposits. Contrary to Scott’s argument, there is no authority in the law to preclude a party to past contracts from altering the terms and conditions of future contracts. However, courts have found the existence of a valid contract, where one party, to his detriment, relied on an established course of business dealings. Gooch v. Farmers Marketing Ass’n, 519 So.2d 1214, 1217 (Miss.1988). To avoid such a claim, the party seeking to alter the established course of dealings must clearly and timely indicate the intent to alter the established pattern of conduct. Id. This Lady Luck did when it wrote to Scott in February 1996, and informed him of its “bus program” which required, that he (1) execute written contracts, and (2) pay room deposits.

¶ 12. Each tour represented a new and separate contract, and the notice of February 1996 was sufficient to put Scott on notice that Lady Luck declined to do business under the old practices. Scott could accept or reject the offer extended by Lady Luck. There is no evidence of any such acceptance in the record. Nor, is there evidence that Scott, by written document or actions, extended to Lady Luck a counter offer, which, by written document or actions, was accepted by Lady Luck. Scott cannot unilaterally create a contract by altering the terms of Lady Luck’s offer. Hunt v. Coker, 741 So.2d 1011(¶ 9) (Miss.Ct.App.1999).

¶ 13. Giving Scott the benefit of the doubt, as this Court is required to do, it clearly appears that no contract came into being between Scott and Lady Luck. In the absence of a contract there can be no breach.

¶ 14. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Tommy PAGE a/k/a Tommie Lee Page, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01815-COA.
    Court of Appeals of Mississippi.
    April 15, 2003.

      Pearson Liddell, Louisville, attorney for appellant.
    Office of the Attorney General, by Jeffrey A. Klingfuss, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. Tommie Lee Page was convicted of the crime of aggravated assault by an Ok-tibbeha County Circuit Court jury. He was sentenced to life imprisonment without the possibility of parole as a habitual offender. Page has now appealed his conviction and resulting sentence, asserting that the evidence of his guilt was insufficient as a matter of law. We find this assertion of error to be without merit and we affirm.

I.

Facts

¶ 2. This statement of facts is drawn from the testimony of prosecution witnesses. The defense rested without putting on any evidence. Karen Hendrix, the victim, testified that she was lured into the back room of a coin-operated laundry by Page on the pretext that he could show her how to operate the dryers without putting in money. According to Hendrix, as she stood in the door, Page pulled her into the room and approached her with a drawn knife. They struggled and Hendrix grabbed the knife in an attempt to defend herself. Hendrix cried out for help, but before anyone else arrived, Page fled the building, apparently using a rear door. Hendrix suffered a cut to her hand that she said was obtained as she attempted to defend herself from Page’s attack. Though Hendrix was not personally acquainted with her assailant, she was able to identify him for investigating officers from a photographic lineup. Several other witnesses reported that Hendrix, in an agitated state immediately after the incident, repeatedly made a claim to the effect that “[h]e tried to stab me.” Witnesses also reported seeing Page in the laundry facility just moments before the incident but no one saw the actual attack or witnessed Page fleeing the scene. The State offered into evidence a police photograph showing the nature of the injury to Hendrix’s hand.

¶ 3. The defense moved for a directed verdict of acquittal at the close of the State’s proof. The motion was denied. At that point, the defense chose to rest without calling any witnesses, thereby proee-durally preserving its challenge to the legal sufficiency of the evidence. The jury returned a verdict of guilty and this appeal followed.

II.

Discussion

¶ 4. Page argues that the trial court erred in denying his motion for a directed verdict. He contends that the State failed to prove beyond a reasonable doubt that he committed an aggravated assault. Aggravated assault is defined in Section 97-3-7 of the Mississippi Code, which provides, in part, that “[a] person is guilty of aggravated assault if he ... purposely or knowingly causes bodily injury to another with a deadly weapon-” Miss.Code Ann. § 97-3-7 (Rev.2000).

¶ 5. On appeal from the denial of a motion for directed verdict of acquittal, the appellate court is required to consider all of the evidence in the light most favorable to upholding the jury’s verdict. We reverse only if we are convinced that, with respect to an element of the offense charged, the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty. McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 6. Page appears to argue that Hendrix’s version of events is unworthy of belief since there was no evidence that Page was intent on either robbing or sexually assaulting her. Thus, according to Page’s argument, the absence of any evidence of a motive makes it improbable that the events as testified to by Hendrix actually occurred. Evidence of a motive for a particular criminal act may often prove to be extremely persuasive, but motive is not an essential element of the crime of assault. The lack of an explanation for Page’s actions does not, of itself, fatally undercut the credibility of Hendrix as a prosecution witness. Generally, issues of witness credibility are submitted to the jury, sitting as finders of fact, for resolution. Billiot v. State, 454 So.2d 445, 463 (Miss.1984). On appeal, those findings are entitled to substantial deference. Id. It has long been established that the testimony of only one eyewitness, if believed to be credible by the jury, is sufficient evidence to sustain a conviction. Holmes v. State, 660 So.2d 1225, 1227 (Miss.1995); Witt v. State, 159 Miss. 478, 482, 132 So. 338, 339 (1931).

¶ 7. Alternatively, Page claims that the jury’s verdict was against the weight of the evidence and that the trial court erred when it denied his motion for a new trial on that basis. A trial court may order a new trial when the court concludes that the verdict, though supported by some evidence, is so contrary to the weight of the credible evidence that, to allow it to stand would work a manifest injustice. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). The trial court, in ruling on such a motion, must view all of the evidence in the light most favorable to upholding the verdict. When the allegation on appeal is that the trial court erred in denying a new trial motion, an appellate court conducts a review of the evidence in that same light and may overturn the trial court’s decision only if the court concludes that the trial court abused its discretion in its ruling. McClain, 625 So.2d at 781.

¶ 8. In this case, there was no affirmative evidence offered by the defense. Rather, the entire theory of the defense was based on its contention that the State had failed as a matter of law to present evidence establishing Page’s guilt beyond a reasonable doubt. Hendrix presented testimony that went to all of the essential elements of aggravated assault. She testified that she was attacked by Page, who was wielding a knife, and that she received lacerations while attempting to defend herself from his attack. We have already observed that the victim’s testimony alone, if found credible by-the finders of fact, is enough to sustain a conviction. Holmes, 660 So.2d at 1227; Witt, 159 Miss. at 482, 132 So. at 339. Hendrix was not effectively impeached during cross-examination, nor did the defense present evidence that would tend to make her version of events so improbable as to be unworthy of belief. In the situation where there is no competing evidence tending to contradict the testimony offered by a prosecution witness or witnesses covering each of the essential elements of the crime, there can be no logical assertion made that the jury’s verdict was against the weight of the credible evidence. See Brockman v. State, 216 Miss. 314, 317, 62 So.2d 362, 363 (1953).

¶ 9. We do not conclude that the trial court erred in denying Page’s new trial motion on the contention that the verdict was against the weight of the evidence.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF LIFE AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.

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