author: LDECUIR, Judge. 11 COOKS, J.,

text:
    John Henry TAYLOR, et ux. v. CHRISTUS HEALTH SOUTHWESTERN LOUISIANA.
    No. 04-627.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      Russell T. Tritico, Sr., Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee John Henry Taylor, Brenda Taylor.
    Ann M. Halphen, Adams and Reese, L.L.P., Baton Rouge, LA, for Defendant/Appellant Christus Health Southwestern Louisiana.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS and OSWALD A. DECUIR, Judges.
   LDECUIR, Judge.

John Henry Taylor and his wife, Brenda Taylor, filed suit against Christus Health Southwestern Louisiana, d/b/a Christus St. Patrick Hospital of Lake Charles (“Chris-tus”), seeking damages for injuries sustained by Mr. Taylor while he was a patient at the hospital. Christus filed an exception of prematurity asserting plaintiffs’ claims fall within the Medical Malpractice Act, and plaintiffs failed to file with the medical review panel as required under La.R.S. 40:1299.41 et seq. The trial court overruled the exception, and Chris-tus has appealed that adverse ruling. For the following reasons, we reverse.

The allegations of the petition state that Mr. Taylor was a patient at Christus Hospital on November 28 and 29, 2002. An angioplasty was performed, and Mr. Taylor was recuperating in a hospital room. Because he wanted to take a shower, he started removing the monitor leads which were attached to his body. A nurse’s aide entered the room, asked what he was doing, then left, stating “she would return shortly with some help.” The petition alleges Mr. Taylor waited for the aide to return, but when she did not, he proceeded to shower on his own in the bathroom located in his room. Mr. Taylor slipped and fell when he exited the shower, suffering a broken hip. At the time suit was filed, Mr. Taylor was anticipating a total hip replacement.

The original petition asserted two acts of negligence on the part of the hospital: failing to properly monitor Mr. Taylor and failing to equip the hospital room with a bath mat on the interior or exterior of the shower. Subsequent to the filing of the defendant’s exception of prematurity, the plaintiffs amended their petition so as to remove the factual assertion concerning the aide’s offer to get assistance and the allegation of negligence in failing to adequately monitor the patient. Several weeks later, the plaintiffs filed a second amending petition whereby they reasserted the allegations of the original petition and urged negligence in the failure to assist Mr. igTaylor in the shower. A hearing-on the defendant’s exception was held, and the trial court issued its ruling in the plaintiffs’ favor. Nevertheless, the plaintiffs subsequently filed a third amending petition, once again removing the allegations of negligence in failing to properly monitor or assist Mr. Taylor.

In this appeal, the plaintiffs contend the filing of the third amended petition renders moot the allegation of negligence in failing to monitor or assist Mr. Taylor. We disagree. At issue herein are the allegations of the second amending petition. We decline to consider any pleadings filed after the signing of the judgment before us in this appeal.

The term “malpractice” is defined in the Medical Malpractice Act, La.R. S. 40:1299.41(A)(8), as:

any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.

Similarly, “health care” is defined at La.R. S. 40:1299.41(A)(9) as:

any act, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment or confinement.

If the provisions of the Medical Malpractice Act apply in this case, then the plaintiffs’ failure to request submission to a medical review panel prior to filing suit render the petition premature. La.R. S. 40:1299.47.

In determining whether the circumstances of this case, as alleged in the petition, fall under the confines of the definitions quoted above, we look to the jurisprudence. The Louisiana Supreme Court in Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, articulated several considerations for determining whether a claim is governed by the medical malpractice statute. Those factors include, for instance, whether the alleged wrong is “treatment related” or caused by want of professional skill, involved an assessment of the patient’s condition, or was within the scope of activities a hospital is licensed to perform. Also relevant is whether expert medical evidence will be required to determine the appropriate standard of care.

In Dominick v. Rehabilitation Hospital of New Orleans, 97-2310 (La.App. 4 Cir. 4/15/98), 714 So.2d 739, the plaintiff slipped and fell on a wet floor in the hospital kitchen, while walking with a small walker and with the aid of a physical therapist. The plaintiff alleged negligence on the part of the hospital. The hospital’s exception of prematurity was granted; the court held the injury occurred during the rendition of health care and was subject to statutory malpractice procedure, even though the plaintiff alleged alternative theories of liability.

In Harris v. Sternberg, 01-1827, 01-2170 (La.App. 4 Cir. 5/22/02), 819 So.2d 1134, writ denied, 02-1617 (La.9/30/02), 825 So.2d 1198, the plaintiff fell off a scale in a doctor’s office and alleged that the scale had not been properly secured by the doctor’s staff. Applying the factors of Coleman v. Deno, the court found that the incident involved medical malpractice as the injury occurred during the rendition of medical services.

In support of their argument that the malpractice act does not apply in this case, the plaintiffs cite Stapler v. Alton Ochsner Medical Foundation, 525 So.2d 1182 (La. App. 5 Cir.1988), and Head v. Erath General Hospital, 458 So.2d 579 (La.App. 3 Cir.1984), writ denied, 462 So.2d 650 (La.1985). In both cases, hospital patients were injured in slip and fall accidents, but both plaintiffs slipped on a foreign |4substance on the floor. The courts concluded that the accidents were not related to the rendition of medical services.

With regard to the particular facts alleged in this case, we find the failure of the hospital nursing staff to monitor or assist a post-surgical elderly patient who has expressed a desire to take a shower must be analyzed under the medical malpractice laws of this state. Likewise, with regard to the absence of a bath mat near the shower, we find the act of properly equipping a hospital room’s private bathroom should be addressed within the confines of medical malpractice. The actions and in-actions of the nursing staff will be considered. An assessment of Mr. Taylor’s post-surgical status may be examined. Issues of hospital procedure might arise. Expert testimony on nursing practices and hospital equipment may be relevant. In short, the plaintiffs’ allegations of negligence belong in the medical malpractice arena.

Accordingly, we find error in the judgment rendered below and reverse. The defendant’s exception of prematurity is hereby maintained, and the plaintiffs’ petition is dismissed at their cost.

REVERSED.

COOKS, J., concurs and assigns reasons.

11 COOKS, J.,

concurring in result.

I agree with the majority opinion requiring the Plaintiff to first submit the claims against the hospital relating to patient care, ie, failing to properly monitor Mr. Taylor and failing to assist Mr. Taylor into the shower. However, the Plaintiff also alleges negligence on the part of Christus St. Patrick for failure to properly equip the hospital bathroom with a bath mat. This allegation of negligence standing alone does not fall within the confines of “health care” as defined by in the Medical Malpractice Act panel.

However, according to Plaintiffs petition the fall would not have occurred had the Plaintiff been properly assisted and monitored despite the absence of a bath mat. The allegations against the hospital relating to patient care are intricately connected to the question of causation. We cannot resolve the causation question by focusing only on the absence of a mat in the bathroom. The entire sequence of events leading up to the fall is relevant to an proper resolution of the causation question.

Accordingly, I concur in the result.


source: Caselaw Access Project

author: RANDOLPH, Justice,

license: Public Domain

text:
    William Gerald MITCHELL a/k/a William Jerald Mitchell v. STATE of Mississippi.
    No. 2002-DR-00479-SCT.
    Supreme Court of Mississippi.
    Aug. 19, 2004.
    Rehearing Denied Dec. 2, 2004.

      Office of Capital Post-Conviction Counsel by: Robert Ryan, attorney for appellant.
    Office of the Attorney General by: Judy T. Martin Marvin L. White, Jr., attorneys for appellee.
   RANDOLPH, Justice,

for the Court.

¶ 1. Patty Milliken was murdered in Biloxi in 1995. At the time of Milliken’s brutal murder, William Gerald Mitchell had been out on parole from a prior sentence of life in prison for murder. Mitchell was charged with the capital murder of Milliken committed while being under a sentence of life in prison. A jury found him guilty and sentenced him to death by lethal injection. This Court affirmed both the conviction and the sentence. Mitchell v. State, 792 So.2d 192 (Miss.2001), cert. denied, 535 U.S. 933, 122 S.Ct. 1308, 152 L.Ed.2d 218 (2002). Mitchell has now filed an application for leave to seek post-conviction relief in the trial court pursuant to Miss.Code Ann. § 99-39-5. Finding no merit to Mitchell’s application, we deny leave to proceed in the trial court.

FACTS

¶ 2. On November 21, 1995, James Hart-ley saw William Gerald Mitchell enter the Majik Mart on Popps Ferry Road in Biloxi, Mississippi, three separate times to visit Patty Milliken while she was working her shift. Hartley overheard Milliken refer to Mitchell as “Jerry.” When Milliken’s shift ended that evening around 8:00 p.m., she and Hartley had yet to document the amount of cash they had placed in the safe that night. Milliken opened the safe and then telephoned her son that she would be home in fifteen minutes. According to Hartley, Milliken walked out of the store with Mitchell to smoke a cigarette and told him (Hartley) that she would be right back. Ten minutes later, Hartley walked outside to ask Milliken a question, but she was not there. Her belongings were inside the store, and her car was in the parking lot.

¶ 3. When Milliken had still not returned by 10:00 p.m., Hartley telephoned the police. Hartley gave Milliken’s purse to police and showed them where she had written Mitchell’s phone number. The police cross referenced the telephone number to a physical address and proceeded to 323 Croesus Street. The police arrived at the residence at approximately midnight and asked to speak to Mitchell. Mitchell ran, and the Biloxi Police Department issued an alert for Mitchell and his vehicle. A police officer later spotted Mitchell at a gas station on U.S. Highway 90. Mitchell again ran, and the police followed in pursuit. Mitchell was eventually caught and arrested for traffic violations. His passenger testified that Mitchell had stated that he (Mitchell) “got that bitch.”

¶ 4. Patty Milliken’s body was found the following morning under a bridge. She had been beaten, strangled, sexually assaulted both vaginally and anally, crushed by a car and mutilated. There was testimony that she was still alive when the car ran over her. Comparison tests conducted police that the tire casts from the area matched three of the four tires on Mitchell’s car with regard to tread design and size. Police also found blood and hair on and under Mitchell’s car.

ANALYSIS

I. Ineffective Assistance of Counsel.

¶ 5. “The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A claimant must demonstrate that counsel’s performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 104 S.Ct. 2052. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Stringer v. State, 454 So.2d 468, 477 (Miss.1984) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). The focus of the inquiry is on whether counsel’s assistance was reasonable considering all the circumstances. Id. A reviewing court must strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance. Further, one who claims ineffective assistance must overcome another presumption that the challenged act or omission “might be considered sound trial strategy.” Id. at 477.

¶ 6. As for the second prong of prejudice to the defense, a reviewing court must determine whether there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Mohr v. State, 584 So.2d 426, 430 (Miss.1991). This means a “probability sufficient to undermine the confidence in the outcome.” Id.

¶ 7. In a death penalty case, the ultimate inquiry is “whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death.” Strickland v. Washington, 466 U.S. at 695, 104 S.Ct. 2052. There is however, no constitutional right then to errorless counsel. Mohr v. State, 584 So.2d at 430. The right to effective counsel does not entitle a defendant to have an attorney who makes no mistakes at trial but simply affords the right to have competent counsel. If the post-conviction application fails on either of the Strickland prongs, the analysis of that issue ends. Davis v. State, 743 So.2d 326, 334 (Miss.1999) citing Foster v. State, 687 So.2d 1124, 1130 (Miss.1996).

a. Mental Retardation as a Mitigating Circumstance.

¶ 8. This Court has held that the “failure to present a case in mitigation during the sentencing phase of a capital trial is not, per se, ineffective assistance of counsel.” Williams v. State, 722 So.2d 447, 450 (Miss.1998) (citing Williams v. Cain, 125 F.3d 269, 277 (5th Cir.1997)). Mitchell argues that trial counsel should have developed and presented evidence of mental retardation during the sentencing phase of the trial. In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the U.S. Supreme Court held that execution of a mentally retarded prisoner violates the prohibition on cruel and unusual punishment in the Eighth Amendment. In the present case, there is no evidence in the record to suggest that Mitchell is mentally retarded within the meaning of Atkins. In fact, the record shows that Mitchell served four years in the military and attended college at Mississippi Valley State University for one semester. A clinical psychologist interviewed Mitchell for two hours after his arrest for murder in 1974. Dr. Donald Mathorne wrote that “it was obvious that the patient had at least average intellectual functioning and a significant deficit in cognitive functioning was not noted during the interview.” Consequently, trial counsel cannot be faulted for failing to present mitigating evidence which did not exist. This issue is without merit.

b. Failure to Challenge the Aggravating Circumstance.

¶ 9. Mitchell next argues that trial counsel failed to challenge the factual basis for charging him with “avoiding arrest.” Whether there was a sufficient factual basis for charging this particular aggravating circumstance was raised on direct appeal and soundly rejected.

¶ 10. This Court held that it was reasonable to conclude that Mitchell repeatedly ran over the victim’s body in order to disguise the injuries he had already inflicted and that “there was sufficient evidence that the murder was committed in an effort to avoid lawful arrest.” Mitchell, 792 So.2d at 220. Mitchell may not now recast the same issue as ineffective assistance of counsel. The issue is procedurally barred from further consideration on collateral review by the doctrine of res judicata. Miss. Code Ann. § 99-39-21(3).

c. Failure to Challenge Venue.

¶ 11. Mitchell asserts that counsel was ineffective due to his failure to “actively” seek a change of venue. Since he is an African-American and the victim was white, Mitchell maintains that “it was imperative that he be tried in a county where the racial make-up was more favorable to him.” This Court, however, has previously held that “a defendant has no right to a change of venue to a jurisdiction with certain racial demographics”. De La Beckwith v. State, 707 So.2d 547, 597 (Miss.1997). Mitchell was entitled only to a trial by an impartial jury representing a fair cross-section of the community. Lanier v. State, 533 So.2d 473, 477 (Miss.1988). A motion for a change of venue is not automatically granted in a capital case. There must be a satisfactory showing that a defendant cannot receive a fair and impartial trial in the county where the offense is charged. Gray v. State, 728 So.2d 36, 65 (Miss.1998). Mitchell has made no such showing.

d. Failure to Secure a Speedy Trial.

¶ 12. Interestingly, this Court held on direct appeal that Mitchell was not denied his right to a speedy trial largely because he was already incarcerated for violating the terms and conditions of his parole. Mitchell, 792 So.2d at 213. Mitchell, on more than one occasion, waived the right to a speedy trial in order to allow defense counsel more time to evaluate the physical evidence and even to allow new counsel to become familiar with the case. Id. at 212. Since this Court has already held that Mitchell’s defense suffered no prejudice from the delay, it follows that any purported omission by trial counsel in causing the delay could have had absolutely no adverse impact on the outcome of the trial within the meaning of Strickland v. Washington. This issue is without merit.

e. Demand for Jury Questionnaires.

¶ 13. Mitchell’s last claim of ineffective assistance is that trial counsel’s demand for jury questionnaires was not timely made. The contention that the motion would have been granted if filed earlier is speculative at best since there is no authority requiring jurors to complete such forms. It is equally speculative that the completion of juror questionnaires, if given, would have changed the outcome of the trial. The State correctly points out that this Court has specifically held that absent a requirement to administer questionnaires in capital cases, there is no abuse of discretion on the part of a trial judge who denies such a motion. Holland v. State, 705 So.2d 307, 337 (Miss.1997). In the present case, the record reflects that defense counsel engaged in exhaustive voir- dire of the jury pool. This issue is without merit.

II. Use of the Statutory Aggravating Circumstance at Sentencing.

¶ 14. Quite simply, Mitchell asserts that use of this aggravating circumstance at the sentencing phase was error because there was no evidence to support a finding that the murder was committed for the purpose of avoiding arrest. As noted in the discussion concerning counsel’s alleged failure to challenge this portion of the indictment, it has already been determined by this Court on direct appeal that there was sufficient evidence to support a finding that the murder was committed for the purpose of avoiding arrest. Consequently, further consideration of this issue on collateral review is procedurally barred pursuant to Miss.Code Ann. § 99-39-21(3). This Court specifically held that it was reasonable to conclude that Mitchell repeatedly ran over the victim’s body in order to disguise the injuries he had already inflicted and that “there was sufficient evidence that the murder was committed in an effort to avoid lawful arrest.” Mitchell, 792 So.2d at 220.

III. Elements of the Aggravating Offense Not Charged in the Indictment.

¶ 15. Mitchell next asserts that the indictment failed to include the elements of the underlying and aggravating offense (avoiding arrest) which raised the charge to a capital offense. This Court has previously considered and rejected this assertion. Mitchell relies on the rulings of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), in which the Court held unconstitutional a sentencing scheme where a judge rather than a jury determined whether there were sufficient aggravating circumstances to warrant imposition of the death penalty.

¶ 16. Apprendi fired several shots into the home of an African-American family in New Jersey and was indicted on state charges of shooting and possession of firearms. He pled guilty to two counts of possession of a firearm for unlawful purpose and one count of possession of an explosive. After the judge accepted the guilty pleas, the prosecutor moved for an enhanced sentence on the basis that it was a hate crime. Apprendi argued that he was entitled to have the finding on enhancement decided by a jury. The Supreme Court agreed, stating: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

¶ 17. However, the Court specifically stated that “Apprendi has not here asserted a constitutional claim based on the omission of any reference to sentence enhancement or racial bias in the indictment. ... We thus do not address the indictment question separately today.” Id. at 477, 120 S.Ct. 2348 n. 3. The U.S. Supreme Court found in Apprendi that New Jersey’s statutory scheme would allow a jury to convict a defendant of a second degree offense of possession of a prohibited weapon, and then, in a separate subsequent proceeding, allow a judge to impose a punishment usually reserved for first degree crimes made on the judge’s finding based on a preponderance of the evidence.

¶ 18. In 2002, the U.S. Supreme Court decided Ring v. Arizona. Ring addressed the issue of whether the Arizona capital sentencing process as upheld in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), that of a jury deciding guilt and a judge making findings on aggravating factors, could survive the Ap-prendi decision. The Supreme Court decided it could not.

[W]e overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. See 497 U.S. at 647-649, 110 S.Ct. 3047, 111 L.Ed.2d 511. Because Arizona’s enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense,” Apprendi, 530 U.S., at 494, n. 19, 120 S.Ct. 2348, 147 L.Ed.2d 435, the Sixth Amendment requires that they be found by a jury.

Ring, 536 U.S. at 609, 122 S.Ct. 2428.

¶ 19. Mitchell contends that the U.S. Supreme Court necessarily adopted every other rule stated in Apprendi for state capital sentencing proceedings, specifically the rule that the Constitution requires that aggravating factors be listed in indictments. The Court in Ring specifically noted the narrow issue being decided. “Ring’s claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him.” Id. at 597, 122 S.Ct. 2428 n. 4. Ring did not contend that his indictment was constitutionally defective.

¶ 20. Further, the retroactive application of Ring was recently rejected in Schriro v. Summerlin, — U.S. — -, -, 124 S.Ct. 2519, 2526, 159 L.Ed.2d 442, - (2004), where the Supreme Court held that the holding in Ring was procedural and therefore did not apply retroactively to death penalty cases already final on direct review.

¶ 21. The State is correct in its assertion that a defendant is not entitled to formal notice in the indictment of the aggravating circumstances to be employed by the prosecution and that an indictment for capital murder puts a defendant on sufficient notice that the statutory aggravating factors will be used against him. Smith v. State, 729 So.2d 1191, 1224 (Miss.1998) (relying on Williams v. State, 445 So.2d 798 (Miss.1984).) We have stated:

We believe that the fact that our capital murder statute lists and defines to some degree the possible aggravating circumstances surely refutes the appellant’s contention that he had inadequate notice. Anytime an individual is charged with murder, he is put on notice that the death penalty may result. And, our death penalty statute clearly states the only aggravating circumstances which may be relied upon by the prosecution in seeking the ultimate punishment.

Williams, 445 So.2d at 804-05. Consequently, this issue is without merit.

IV. Alleged Fourth Amendment Violation.

¶ 22. Mitchell argues that police unlawfully came to the residence of his grandfather without probable cause so as to deprive him of a fair trial and due process. On direct appeal, this Court thoroughly considered and rejected the issue of police trespass. The issue is now procedurally barred by the doctrine of res judicata from further consideration on collateral appeal. Miss.Code Ann. § 99-39-21(3).

¶ 23. As for the merits of the claim, this Court found that when Mitchell initially ran from police, “the requisite suspicion existed to allow officers to stop and detain Mitchell temporarily for questioning. Once he fled the officers and ignored their commands to halt, the officers, already possessing reasonable suspicion, also obtained probable cause.” Mitchell, 792 So.2d at 204. This Court further held that the first investigating officer “was in an area of common use” and that “[a]n illegal trespass by the police did not occur in this case.” Id. at 206. This issue is without merit.

Y. Mental Retardation.

¶24. The U.S. Supreme Court has held the death penalty to be “excessive” as applied to mentally retarded inmates and that the Constitution “places a substantive restriction on the State’s power to take the life” of a mentally retarded prisoner. Atkins v. Virginia, 536 U.S. at 321, 122 S.Ct. 2242. The Court found that there existed a national consensus which called into question “the relationship between mental retardation and the penological purposes served by the death penalty.” Id. at 317, 122 S.Ct. 2242. The Court recognized that “clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18.” Id. Mild mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70.

¶ 25. In Foster v. State, 848 So.2d 172, 174 (Miss.2003), Ron Chris Foster had an IQ score of 62 and a psychiatrist stated that the score was “consistent with a diagnosis of mental retardation.” This Court granted leave to proceed in the trial court on the issue of mental retardation. In Russell v. State, 849 So.2d 95 (Miss.2003), Willie Russell was found by one doctor to have a full scale IQ of 68, which indicated that Russell was functioning within the upper range of the mildly mentally retarded category of intelligence. However, another doctor testified that Russell’s IQ was 76, “borderline to low normal,” and that he was not retarded. Russell too was granted leave to proceed on this issue.

¶ 26. In Goodin v. State, 856 So.2d 267 (Miss.2003), Howard Goodin presented evidence which showed that he had a verbal IQ of 65, a performance IQ of 60, for a full scale IQ 60 on the Wechsler Test. Goodin also produced school records showing poor performance and affidavits from relatives discussing his strange behavior. This Court granted Goodin leave to proceed in the trial court on this issue.

¶ 27. In the present case, there is no evidence in the record to suggest that Mitchell is mentally retarded within the meaning of Atkins v. Virgina. In fact, the records show that Mitchell served four years in the military and attended college at Mississippi Valley State University for one semester. A clinical psychologist interviewed Mitchell for two hours after his arrest for murder in 1974. Dr. Donald Mathorne wrote that “it was obvious that the patient had at least average intellectual functioning and a significant deficit in cognitive functioning was not noted during the interview.”

¶ 28. Further, this Court recently held in Chase v. State, 873 So.2d 1013 (Miss. 2004), that defendants with an IQ of 76 or above are not entitled to protection under Atkins. The Court held that it was incumbent upon a petitioner claiming mental retardation to produce an expert opinion that the defendant possessed an IQ of 75 or below and that there is a reasonable basis to believe that further testing would show the defendant to be mentally retarded. No such showing has been made in Mitchell’s application for post-conviction relief. This issue is without merit.

VI. Manslaughter as a Lesser-Included Offense.

¶29. Mitchell continues to argue that it was error on the part of the trial court not to instruct the jury on the lesser-included offense of manslaughter. Mitchell contends that the instruction was supported by evidence which purportedly showed that the killing was committed in the heat of passion. This issue was raised on direct appeal and rejected by this Court. The issue is now res judicata and procedurally barred from further consideration. Miss.Code Ann. § 99-39-21(3).

¶ 30. Further, jury instructions will not be given unless there is an eviden-tiary basis for them. Burns v. State, 729 So.2d 203, 225 (Miss.1998). In the present case, this Court specifically found that there was “[n]o evidence presented at trial Mitchell had displayed heat-of-passion emotions.” Mitchell, 792 So.2d at 219. We explained:

In an act of premeditation, Mitchell took Milliken to the area under the bridge, beat and strangled her, ran over her, and eventually killed her by crushing her skull with his vehicle. As this Court stated in Berry v. State, 575 So.2d 1, 12 (Miss.1990), “No reasonable hypothetical juror could find that this killing was without malice”; therefore, the defendant “was not entitled to a manslaughter instruction.” Mitchell’s actions were not without malice. Therefore, a manslaughter instruction was not appropriate in this case.

Mitchell, 792 So.2d at 219. This issue is without merit.

VII. Setting the Execution Date.

¶ 31. Mitchell asserts that his death sentence may not be imposed until he finishes serving his prior life sentence. He relies on Miss.Code Ann. § 47-7-29 (Rev.2000) which provides:

Any prisoner who commits a felony while at large upon parole or earned-release supervision and who is convicted and sentenced therefor shall be required to serve such sentence after the original sentence has been completed.

Notably, Mitchell cites no authority for this unusual interpretation of the statute. As a practical matter, the record does not indicate Mitchell’s parole was ever revoked so as to have his earlier sentence re-imposed. Further, Mitchell has been convicted of a capital offense and Miss.Code Ann. § 99-19-106 clearly provides that execution shall be set on motion of the State after all state and federal remedies have been exhausted. This issue is without merit.

VIII. Speedy Trial Claim.

¶32. This issue was raised on direct appeal and rejected by this Court following a very lengthy and thorough consideration. The issue is now procedurally barred from further consideration. Miss. Code Ann. § 99-39-21(3). This Court specifically found that despite a delay of 970 days, Mitchell requested at least three continuances and failed to timely assert the right to a speedy trial. Nor did this Court find that the delay resulted in any prejudice to the defense. This Court thereafter concluded that “[a]fter careful review of the facts of this case and the Barker factors”, Mitchell’s right to a speedy trial was not violated. Mitchell, 792 So.2d at 213. This issue is without merit.

IX. Cumulative Error.

¶ 33. It is true that this Court may reverse a conviction or sentence based upon the cumulative effect of errors which independently would not require reversal. Jenkins v. State, 607 So.2d 1171, 1183-84 (Miss.1992). However, it is equally true that where “there was no reversible error in any part, so there is no reversible error to the whole.” McFee v. State, 511 So.2d 130, 136 (Miss.1987). “A criminal defendant is not entitled to a perfect trial, only a fair trial.” McGilberry v. State, 741 So.2d 894, 924 (Miss.1999) (citing Sand v. State, 467 So.2d 907, 911 (Miss.1985)). The record reflects that Mitchell received a fair trial. This issue is without merit.

CONCLUSION

¶ 34. For these reasons, we deny Mitchell’s application for leave to seek post-conviction relief.

¶ 35. APPLICATION FOR LEAVE TO SEEK POST-CONVICTION RELIEF IS DENIED.

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


author: GRAVES, Justice,

text:
    FARMLAND MUTUAL INSURANCE COMPANY v. Mitchell SCRUGGS, Eddie Scruggs, Scruggs Farm Supply, Inc., Scruggs Farm Joint Venture, HES Farms, Inc., MES Farms, Inc. and MHS Farms, Inc.
    No. 2003-CA-00874-SCT.
    Supreme Court of Mississippi.
    Sept. 16, 2004.
    Rehearing Denied Dec. 2, 2004.

      J. Collins Wohner, James A. Becker, Jr., Jackson, Marc A. Biggers, Steven Cavitt Cookston, Greenwood, attorneys for appellant.
    James Lawton Robertson, Jackson, Jim Waide, Lisa Scruggs, attorneys for appel-lees.
    Before SMITH, C.J., CARLSON and GRAVES, JJ.
   GRAVES, Justice,

for the Court.

¶ 1. For centuries farmers have saved their planting seed. This is a process by which a farmer selectively “keeps back” some of his seed, particularly from those crops that have performed well. Instead of purchasing new seed every year, a savvy farmer can save time and expense and increase harvests by using saved seed. One simply takes seeds from the most productive plants and attempts to multiply them through successive years of re-planting.

¶ 2. Modern technologies have drastically changed all facets of farming — even the very crops that farmers grow. In 1996 the Monsanto Company introduced types of soybean and cotton seeds that were resistant to the popular herbicide Roundup, also manufactured by Monsanto. The seeds were “Roundup Ready” — genetically altered to resist the very effective herbicide. This drastically increased the ability of farmers to inhibit weed growth and increase crop harvests.

¶ 3. Yet complicated legal theory was intertwined with the seeds. The seeds were no longer simply “seeds” — they fell under the protection of two separate registered United States Patents, Nos. 5,633,-435 (the “435” patent) and 5,352,605 (the “605” patent). Because the seeds had a high value due to their patented resistances, Monsanto did not just sell the seeds: it actually licensed them to seed companies and required those licensees to also license them to individual customers. The licenses were strict; purchased seed could only be used for one planting season and the seed could not be saved. See generally Monsanto Co. v. McFarling, 363 F.3d 1336, 1338-39 (Fed.Cir.2004).

¶ 4. Monsanto quickly discovered that many customers were not complying with the licensing requirements and began aggressive litigation to protect its product. The company’s concerns of losing control of the product were grounded in fact: one source has estimated that 36 bags of seed could be generated from just one bag of the patented seed in just one year. Under that reasoning, one bag of patented seed might produce over forty-six thousand bags of seed in only three years of saving the seed. The users of the saved seed also realized a deep discount, since they could avoid the premiums Monsanto charged and also avoid the licensing fee, undercutting Monsanto’s profits and the value of the 435 and 605 patents.

¶ 5. In 2001 Monsanto filed a complaint against Mitchell and Eddie Scruggs and their supply company, Scruggs Farm Supply, Inc., located in Lee County, Mississippi. Monsanto alleged the Scruggses obtained a supply of unlicensed Roundup Ready seed from an unauthorized source and planted it in 2000. The company alleged the Scruggses were seen spraying Roundup on a field planted with the non-lieensed seed — but that the crops were not damaged. This was a telltale sign the seed was Roundup Ready. A sample of the unlicenced seed was obtained — retrieved without trespass from a public right-of-way — and laboratory analysis confirmed its identity as Roundup Ready.

¶ 6. Monsanto sued the Scruggses under seven theories of recovery. The first five were for the infringements of patents 435 and 605 and three other patents, allegedly committed by the defendants “with full knowledge and with notice [of the violation] of Monsanto’s patent rights.” Fifth, Monsanto alleged the intentional tort of conversion — that the “defendants intentionally and wrongfully exercised dominion, ownership and control over Roundup Ready technology.” This action was allegedly “malicious and willful,” to the point “Monsanto is entitled to punitive damages.” Lastly, Monsanto alleged that the defendants were unjustly enriched through their actions.

¶ 7. That lawsuit is what triggered the case before us. In 1999 the Scruggses purchased insurance from Farmland Mutual Insurance Company, and later expanded their coverage to include a commercial general liability policy (“GCL”) and an umbrella policy (collectively “the policy”). The GCL had a $2 million limit to liability, and the umbrella added another $20 million on top of that. The terms of the two parts of the policy are substantially the same.

¶ 8. The Scruggses notified Farmland of the pending suit, but were flatly denied coverage on the basis that their actions were intentional. The Scruggses filed this suit against their insurer in the Circuit Court of Lee County, and this case was appealed to us after the circuit court disposed of three motions. First, it denied summary judgment for Farmland, who urged that it was not required to defend the suit. Second, the trial court entered partial summary judgment for the Scruggses, determining that the Farmland policy did cover Monsanto’s suit and that Farmland had a duty to defend. Third, the circuit court entered a preliminary injunction requiring Farmland to defend the suit and also pay all current and outstanding legal bills; at the time the preliminary injunction was entered that amount was roughly $300,000, and the order noted that another $500,000 might be incurred.

¶ 9. Determined that the injunction and partial summary judgment are incorrect and that the policy does not cover the Monsanto suit, Farmland appeals that decision to this Court, assigning three errors. Despite the technological complexity of the underlying facts, we only need to address one basic legal issue to resolve this matter: does the Scruggses’ insurance policy cover the torts complained of in Monsanto’s lawsuit? After a review of our jurisprudence and the language of the policy, we answer that question in the negative.

DISCUSSION

¶ 10. The proper construction of an insurance contract provision is a question of law which we review de novo. Radmann v. Truck Ins. Exchange, 660 So.2d 975, 977 (Miss.1995). We review a trial court’s grant of a summary judgment motion de novo as well. Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000). We have long held that when a contract is clear and unambiguous to its wording, its meaning and effect are matters of law. U.S. Fidelity & Guar. Co. v. Omnibank, 812 So.2d 196, 198 (Miss.2002); Sumter Lumber Co. v. Skipper, 183 Miss. 595, 608, 184 So. 296, 298 (1938) (‘When the language of the deed or contract is clear, definite, explicit, harmonious in all its provisions, and free from ambiguity throughout, the court looks solely to the language used in the instrument itself, and will give effect to each and all its parts as written”).

¶ 11. It is also bedrock law “that ambiguous terms in an insurance contract are to be construed most strongly against the preparer, the insurance company.” Omnibank, 812 So.2d at 198; Caldwell v. Hartford Acc. & Indem. Co., 248 Miss. 767, 776, 160 So.2d 209, 212-13 (1964) (“The rule that the insurance policy prepared by the insurer must be construed more strongly against the insurance company, and that any fair doubt should be resolved in favor of the insured, is so well-settled in the law of insurance that we hesitate to cite any cases”). We must refrain from altering or changing a policy where the terms are unambiguous, even if there is a resulting hardship on the insured party. Titan Indem. Co. v. Estes, 825 So.2d 651, 656 (Miss.2002); State Farm Mut. Auto. Ins. Co. v. Scitzs, 394 So.2d 1371, 1373 (Miss.1981). Like any other contract, if an insurance contract is plain and unambiguous, it should be construed as written. Estes, 825 So.2d at 656; Scitzs, 394 So.2d at 1372; see generally Jeffrey Jackson, Mississippi Insurance Law & Practice § 1:7 (2001).

¶ 12. The Scruggses argue they are protected from Monsanto’s suit by virtue of multiple sections in their Farmland insurance policy, namely the “Property Damage” section, the “Personal Injury” section, the “Duty to Defend” section, and the absence of pertinent exclusions and the inapplicability of the intentional acts exclusion. We turn to that policy to ascertain its terms.

The Policy

¶ 13. It is critical to understand the terms used between the parties in construing any contract. Many contracts are highly specific in defining terms to avoid the specter of ambiguity. That specter arises when a reasonable person could have understood the terms to have more than one reasonable meaning. Universal Underwriters Ins. Co. v. Ford, 734 So.2d 173, 176 (Miss.1999); J & W Foods Corp. v. State Farm Mut. Auto. Ins. Co., 723 So.2d 550, 552 (Miss.1998); Jackson, Mississippi Insurance at § 1:5. Simply because the parties disagree about the meaning of a provision of a contract does not make the contract ambiguous as a matter of law. Burton v. Choctaw County, 730 So.2d 1, 6 (Miss.1997). The Scruggses claim coverage under three sections of the policy: bodily injury and property damage coverage, personal injury coverage, and advertising injury coverage. Farmland denies any form of coverage.

Bodily Injury and Property Damaye

¶ 14. Under the “Bodily Injury and Property Damage” section of the policy, Farmland agreed to “pay those sums that the insured becomes legally obligated to pay as damages, including punitive and exemplary damages, because of bodily injury or property damage to which this insurance applies ... The bodily injury or property damage must be caused by an occurrence ... We will have the right and the duty to defend any suit seeking those damages.”

¶ 15. “Bodily injury” is defined as “bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.” The Scruggses argue that the policy protects them under the policy since Farmland contracted to “pay those sums that the insured becomes legally obligated to pay as damages, including punitive and exemplary damages, because of bodily injury or property damage to which this insurance applies.”

¶ 16. Yet the policy flatly states that “[t]he bodily injury or property damage must be caused by an occurrence.” (emphasis added). The contract itself defined that term, along with 66 others. The word “occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general conditions.” The word “accident” is bolded in the definition, as are many other words throughout the policy, indicating that they are also defined. In turn, the word “[a]c-cident means a sudden unforeseen or unintended event.”

¶ 17. Thus, if there were no “occurrence,” the policy does not cover the situation. In Omnibank a bank had allegedly “wrongfully force-placed collateral protection insurance” on several of its customers. 812 So.2d at 198. When the customers sued, the bank’s insurer refused coverage, and the bank filed suit claiming that the insurer had a duty to defend. Id. The insurer refused coverage because the actions of the bank were intentional, and the “oceurrencefs]” covered in the insurance were defined simply as an “accident.” Id. at 200. We determined that “[a]n accident by its very nature, produces imexpected and unintended results ... [and so] [i]t follows that bodily injury or property damage, expected or intended from the standpoint of the insured, cannot be the result of an accident.” Id. (emphases added).

¶ 18. The same common sense reasoning applies here. All of Monsanto’s claims are styled as “willful” or “intentional,” with the last, unjust enrichment, based upon alleged profits from those intentional torts. Monsanto specifically asked for treble damages (allowable under 35 U.S.C. § 284) for patent infringement because of the “knowing, willful, deliberate and conscious infringement of the patent rights at issue.” And there is no doubt that conversion is an intentional tort. The entire complaint is carefully worded with repeated references to the Scruggses’ intentional conduct.

¶ 19. A liability insurance company has an absolute duty to defend a complaint which contains allegations covered by the language of the policy, but it has absolutely no duty to defend those claims which fall outside the coverage of the policy. Sennett v. U.S. Fidelity & Guar. Co., 757 So.2d 206, 212 (Miss.2000) (quoting Moeller v. Am. Guar. & Liability Ins. Co., 707 So.2d 1062, 1069 (Miss.1996)); see also Jackson, Mississippi Insurance § 10:3 (“The general rule in Mississippi and elsewhere is that a liability insurer has the duty to defend claims falling within coverage under the policy”). To determine if a duty to defend exists one turns to the allegations of the complaint. Sennett, 757 So.2d at 212 (quoting Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So.2d 400, 403 (Miss.1997)).

¶ 20. From the face of Monsanto’s complaint, only intentional torts are alleged. In addition, the Scruggses’ pattern of conduct has been one of intentional acts. Indeed, it took a preliminary injunction by a federal court to stop the Scruggses from using or selling the seeds. See Monsanto Co. v. Scruggs, 249 F.Supp.2d 746 (N.D.Miss.2001). The Scruggses never disputed that the conduct was intentional, only that the effects were unintended; in fact, they dispute there was any harm at all. They offer that Monsanto’s claim of patent infringement and damage to trade reputation is “utter nonsense, [since] the farmers saving Roundup Ready soybeans and replanting them in future years is no more harmful to Monsanto’s slogans, brand names and trade reputation th[an] the used car salesman damages Ford Motor Co. by selling used Fords.”

¶ 21. That analogy does not fit the facts at hand. There is nothing illegal about selling used cars, but the cars must not be stolen. The seeds at issue are like a stolen Ford, for at the hearing for the preliminary injunction in federal court “Scruggs also admitted that [he and the other defendants] never entered into a commercial license for authorized use of the plaintiffs’ patented biotechnology.” Scruggs, 249 F.Supp.2d at 751. In the federal court the Scruggses also contended in part that the Monsanto patents were invalid, that there was patent misuse, and that there were antitrust violations. Id. at 752-54. The district court dismissed these claims as “a charade.” Id. at 754.

¶22. The Scruggses may not like the consequences of their intentional actions and may dispute the law that protects Monsanto against their actions, but that does not mean their liability insurer must be made a party to such an action. The reasonable and unambiguous insurance contract between the Scruggses and Farmland excludes all intentional acts. Therefore, there is no coverage under the “Bodily Injury and Property Damage Liability” section of the policy.

¶ 23. Moreover, if the allegations of the complaint had not been intentional in nature, a policy exclusion may have applied. Section III(A)(l)(b)(12) of the policy specifically excludes genetically modified seed from policy coverage. The section reads “[t]his insurance does not apply ... [t]o bodily injury or property damage arising out of ... the production, distribution, delivery or sale of genetically altered or genetically engineered seed if such injury or damage arises out of such genetic engineering or genetic alteration.” (emphasis added). The Monsanto seed is certainly genetically modified, and in part this action arose because the Scruggses were selling the seed in violation of Monsanto’s patent. This further undermines their claims for coverage since there is a specific exclusion on point.

¶ 24. Furthermore, as a matter of public policy, people and businesses cannot purchase insurance coverage for illegal activities. Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So.2d 400, 405 (Miss.1997). For we do not allow corporations or persons “ ‘to insure themselves against acts prohibited by law.’ ” Id. (quoting Graham Resources, Inc. v. Lexington Ins. Co., 625 So.2d 716, 721 (La.Ct.App.1993)). In Graham, the Louisiana Court of Appeals refused to allow an insurer to protect itself against the illegal act of securities fraud; the illegal act of patent infringement is likewise unprotected by coverage.

¶ 25. There are therefore three reasons why coverage must be denied; first, the plain face of Monsanto’s complaint does not trigger the policy’s coverage and duty to defend; secondly, the torts complained of were intentional; and last, public policy compels us to refuse coverage for intentional and illegal actions.

Personal and Advertising Injury Coverage

¶ 26. Regarding personal and advertising injury coverage, the policy states that Farmland “will pay those sums that the insured becomes legally obligated to pay as damages including punitive and exemplary damages, because of personal injury or advertising injury to which this insurance applies.” The policy specifically states that “[n]o other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for [under the policy].” (emphasis added).

¶ 27. The policy does not cover the torts Monsanto has complained of; indeed, as discussed supra, one cannot insure oneself for illegal actions. The Scruggses struggle mightily to suggest that coverage might fall under the provision for personal and advertising injury. This strains the plain words of the contract.

¶ 28. The Scruggses argue that if “Farmland wished to exclude patent claims, it could have easily done so.” This is true, but the policy expressly provides that coverage only occurs when “explicitly provided for.” Patent infringement is not discussed anywhere in the policy and will not be inferred. Again, we will refrain from altering or changing a policy where the terms are unambiguous, even if there is a resulting hardship on the insured party. Estes, 825 So.2d at 656. Accordingly, when an insurance contract is plain and unambiguous, it should be construed as written. Id.

¶ 29. If the Scruggses were concerned about securing insurance to protect against patent infringement, they should have sought out an insurer that provided such coverage or attempted to contract with Farmland for such coverage. It cannot be claimed that the policy protects them from liability when the policy specifically excludes situations that are not included in the coverage.

¶ 30. The contract is plain and unambiguous, and we will not distort it to find coverage where none exists. As noted supra, there are three more reasons why coverage must be denied; first, the plain face of Monsanto’s complaint does not trigger the policy’s coverage and duty to defend; secondly, the torts complained of were intentional; and last, public policy compels us to refuse coverage for intentional and illegal actions.

CONCLUSION

¶ 31. Accordingly, since the insurer has no duty to defend the intentional actions of the Scruggses to a third party, the order of the Lee County Circuit Court is reversed. The partial summary judgment in favor of the Scruggses finding coverage under the policy and regarding Farmland’s duty to defend is reversed. The preliminary injunction requiring Farmland to pay for legal fees is reversed. Since there is no duty for Farmland to defend the suit against Scruggs, summary judgment is entered on its behalf.

¶ 32. REVERSED AND RENDERED.

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

      . For the sake of clarity the bolded words of the policy will not be emphasized in this opinion.

        . In Mississippi an insurer does have a duty to defend where a complaint fails to state a cause of action covered by policy but the insured informs the insurer that the true facts are inconsistent with the complaint, or where the insured learns from an independent investigation that the true facts present the potential liability of insured the insured. Mavar Shrimp & Oyster Co. v. U.S. Fidelity & Guar. Co., 187 So.2d 871, 875 (Miss.1966) (internal quotations & citations omitted); see also Jackson, Mississippi Insurance § 10:5. In the underlying legal matter that brought the case at hand the Scruggses do not dispute the facts which triggered the complaint, but rather argue that Monsanto cannot legally prevent farmers from saving their seed.

      . Although the order of the trial court addressed these two concepts separately, they are grouped together under the policy as “Personal and Advertising Injury Liability.” Accordingly, we will consider them together.

      . Such coverage exists. See Joby A. Hughes & Kate L. Birenbaum, Insuring Intellectual Property Risks: Creative Solutions on the Cutting Edge, 568 PLI/Pat 203, 212-13 (1999): "Infringement coverage (or 'defensive' coverage) is associated with being sued by a third party for infringement of that third party's rights. Essentially, defensive coverage seeks to cover the legal expenses and also the damages associated with 'trespassing' on another’s rights, whereas, enforcement coverage pays for the legal expenses and possibly the loss of value due to 'trespassers' on that property. This is the coverage that most traditional insurers attempt to cover in order to fill a perceived gap in the commercial general liability policy’s advertising injury clause."


text:
    Gerald W. McINTOSH v. DEPARTMENT OF HUMAN SERVICES.
    No. 2003-CA-02138-SCT.
    Supreme Court of Mississippi.
    Sept. 16, 2004.
    Rehearing Denied Dec. 2, 2004.

      Laurel G. Weir, Philadelphia, attorney for appellant.
    David Lee Love, Jackson, Darrell Clayton Baughn, James Jason Bayles, attorneys for appellee.
    Before COBB, P.J., EASLEY and GRAVES, JJ.
   GRAVES, Justice,

for the Court.

¶ 1. On October 18,1989, the Mississippi Department of Human Services (hereinafter “DHS”) filed a complaint against Gerald W. McIntosh in the Kemper County Chancery Court. The action was to determine the paternity of one Deshun McDade, who had been born on June 30, 1987, to Bobbie McDade. On December 5, 1989, the chancellor entered an order compelling McIntosh, Bobbie, and Deshun to submit to blood testing. In March the outcome of the tests was submitted to the court; the paternity evaluation report indicated there was a 99.96% probability that McIntosh was Deshun’s father. Fully satisfied by such overwhelming scientific evidence, the court entered a judgment adjudicating McIntosh to be the father of Deshun.

¶ 2. In 1999 the court entered a child support order which found McIntosh to have an adjusted monthly gross income of $800, or roughly $9,600 a year. Based on this calculation, he was ordered to pay $112 per month beginning November 1, 1999. Yet McIntosh did not obey the court’s ruling to support his child. Because of his continuing failure to pay child support, DHS. filed a complaint seeking the delinquent funds. It also sought to have McIntosh held in contempt for his blatant failure to pay child support.

¶ 3. McIntosh requested additional paternity testing; this was denied by the court on the basis that he provided no expert testimony to challenge the validity of the previous paternity test. He also contended that he lacked the financial means to pay support because of an alleged disability that prevented him from working. No medical records were provided to support the claim of injury or disability; indeed, McIntosh had applied for Social Security benefits and been rejected.

¶ 4. The court found his inability to pay child support was unjustifiable whether he was employed or nob — because even when McIntosh was employed he did not pay child support. He was found to be behind $5,125 in payments for the nearly four years of missed payments. For this gross delinquency, McIntosh was found in contempt and his incarceration was ordered by the trial court, with the condition that jail time would be suspended if McIntosh paid $500 on the back payments within 30 days. McIntosh appeals the rulings of the trial court, citing two errors. Finding none, we affirm the decision of the chancellor.

DISCUSSION

¶ 5. The findings of fact of the chancery court, particularly in the areas of divorce and child support, will generally not be overturned by this Court on appeal unless they are manifestly wrong. Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989). Findings of the chancellor will not be disturbed or set aside on appeal unless the decision is manifestly wrong and not supported by substantial credible evidence, or unless the wrong legal standard was applied. In re Guardianship of Savell, 876 So.2d 308, 312 (Miss.2004); Tinnin v. First United Bank of Miss., 570 So.2d 1193, 1194 (Miss.1990); Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990).

I. Did the court err in denying the request for additional paternity testing?

¶ 6. McIntosh argues that additional paternity testing should have been granted based upon Miss.Code Ann. § 93-9 — 21(l)(c) (Supp.2003). That statute states in pertinent part that “[i]f either party challenges the original test results, the department shall order additional testing at the expense of the challenging party.” Yet while the statute plainly provides a mechanism for recoupment of costs when additional testing is needed, it does not detail the procedure to challenge the validity of genetic testing.

¶ 7. That process is addressed in Section 93-9-23(3), which describes in pertinent part that “[i]f the court, in its discretion, finds cause to order additional testing, then it may do so using the same or another laboratory or expert.” (emphasis added). McIntosh never supplied the trial court with any expert testimony that would show good cause why additional paternity testing was warranted. Without such evidence the trial court found that it could not allow additional testing. This was not an abuse of discretion on the part of the chancellor; indeed, it is a logical and wholly correct determination. If parties could simply set aside genetic tests with no evidence tending to disprove their validity, then paternity would never be resolved.

¶ 8. There is another reason why McIntosh’s argument fails. Sections 93-9-23(2) & (3) outline in pertinent part that “[a] party may challenge the testing procedure within thirty (30) days of the date of mailing the results ... [but][i]f there is no timely challenge to the original test results or if the court finds no cause to order additional testing, then the [original] certified report shall be admitted as evidence in the proceeding as prima facie proof of its contents.” Id. In the case sub judice, the original paternity evaluation was issued on March 28, 1990. McIntosh’s request for additional paternity testing was on November 29, 1999, roughly nine years from the issuance of the original paternity evaluation. Any challenge to the paternity test or motion for additional paternity testing grossly exceeded the statutorily-provided thirty days.

¶ 9. For those two reasons, the trial court committed no error in refusing to grant McIntosh’s request for additional paternity testing.

II. Did the trial court err in holding McIntosh in contempt for failure to pay child support?

¶ 10. McIntosh argues he should not have been held in contempt because the burden of proof was on DHS to prove by a preponderance of the evidence that he was not able to pay the judgment; he further argues that DHS failed to meet this burden. This argument contradicts our established case law.

¶ 11. In contempt actions involving unpaid child support, a prima facie case of contempt has been established when the party entitled to receive support introduces evidence that the party required to pay the support has failed to do so. Guthrie v. Guthrie, 537 So.2d 886, 888 (Miss.1989). At this point, the burden shifts to the paying party to show an inability to pay or other defense; this proof must be clear and convincing and rise above a simple state of doubtfulness. Shelton v. Shelton, 653 So.2d 283, 286-87 (Miss.1995). Whether a party is in contempt is left to the chancellor’s substantial discretion. Id. at 286. Moreover, the chancery court should be affirmed unless manifest error is present and apparent. Premeaux v. Smith, 569 So.2d 681, 683 (Miss.1990).

¶ 12. Without a doubt, DHS established a prima facie case of contempt. The agency submitted evidence that showed McIntosh had never paid any support payments, in direct contradiction of court order. At that point, the burden shifted to McIntosh to show his inability to pay.

¶ 13. McIntosh contends that he lacked the financial capability to pay his support obligation. He relies upon our decision in Hooker v. Hooker, 205 So.2d 276, 278 (Miss.1967), where we held that a husband may exonerate himself from failure to make alimony or child support payments because of his inability to pay. Yet while “a husband may exonerate himself from failure to make ... child support payments as ordered, because of his inability to pay ... his evidence must be made with particularity and not in general terms.” Id. at 278; see also Bailey v. Bailey, 724 So.2d 335, 337 (Miss.1998). In Hooker, the husband provided documents showing that his business and property had been foreclosed, that there were judgments for over $87,000 entered against him, and that he was unable to find employment. Hooker, 205 So.2d at 277. Such a dramatic change in circumstances was sufficient to protect Hooker from contempt of court. Id. at 278.

¶ 14. In contrast with Hooker, McIntosh provided no evidence of his inability to pay but merely described in general terms that he had no income or assets. McIntosh provided no medical records to support his alleged disability. He also provided no evidence to sustain his continued inability to seek employment. “Willful refusal to support one’s children is not the same as inability to pay.” Bailey, 724 So.2d at 337. Therefore, the chancery court did not err in finding McIntosh in contempt.

¶ 15. As a state and as a society we have determined that it is imperative that those who have fathered children provide financial support for their well-being. Children are too valuable to be simply cast aside. Jeffrey M. Williams, Guidelines: Need, Process and Review, 70 Miss. L.J. 1065, 1070-71 (2001). The world was not asked of Gerald W. McIntosh — only $112 a month. Because he refused to pay even that modest sum in support of the child he fathered and because he had absolutely no evidence to show why he could not pay that amount, the chancery court did not err in finding him in contempt.

CONCLUSION

¶ 16. Because McIntosh presented no evidence why the original paternity test should be set aside and because he objected later than the 30-day period provided by statute, the trial court did not err in denying him a new paternity test. Likewise, because he could show no evidence why he was unable to comply with his court-ordered child support, McIntosh was properly held in contempt by the trial court. The judgment of the chancery court is affirmed.

¶ 17. AFFIRMED.

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

      . $112 is exactly 14% of McIntosh's monthly salary, the amount provided for via statutory guidelines for the support of one child. See Miss.Code Ann. § 43-19-101 (Rev.2000). For two children, the amount rises to 20%; three children, to 22%; four children receive 24%; and five or more children are entitled to 26% of the adjusted gross income of the supporting parent. Id.

      . Adjusting for inflation using the Consumer Price Index, that amount Hooker owed in 1967 is roughly $490,000 in 2004 dollars.

      . While a parent behind on child support payments may avoid contempt of court, they can never avoid the ultimate debt. For "[ojnce [child support rights] become vested, just as they cannot be contracted away by the parents, they cannot be modified or forgiven by the courts.” Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992).


author: KING, P. J„ McMILLIN, C.J.,

text:
    Dana IRONS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01366-COA.
    Court of Appeals of Mississippi.
    April 6, 2004.
    Rehearing Denied Aug. 10, 2004.
    Certiorari Denied Nov. 18, 2004.

      James A. Williams, Meridian, attorney for appellant.

      Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, P.J., THOMAS and MYERS, JJ.
   KING, P. J„

for the Court.

¶ 1. Dana Irons was convicted by the Kemper County Circuit Court of obtaining a controlled substance by fraud. Irons was sentenced to a term of five years in the custody of the Mississippi Department of Corrections, with three years suspended, and five years of supervised probation. Aggrieved, Irons appeals and raises the following issues which we quote verbatim:

I. Whether when the grand jury returns an indictment for an attempt to commit a crime, the court may not allow an amendment of the indictment and the case then be tried upon a charge of having committed the attempted crime.

II. Whether defendant was denied a fair trial and fundamental fairness when the judge overruled an objection to a leading question and remarked that the answer was “foundational” and further commented that the purported telephone call from the doctor’s office did not contain the truth.

III. Whether defendant is denied effective assistance of counsel when trial counsel fails to present a motion to dismiss for failure to grant a speedy trial, fails to object to comments by the trial judge, fails to object to denial of confrontation when hearsay was introduced on a material issue.

IV. Whether the weight and sufficiency of the evidence do not support a verdict of guilty of obtaining controlled substance by fraudulent prescription and defendant is entitled to a new trial.

FACTS

¶ 2. On August 21, 2000, at approximately 9:00 a.m., Jim VanDevender, a pharmacist at VanDevender Drugs in DeKalb, received a telephone call. The caller, a female, stated, “This is Becky from Dr. Hensleigh’s office in Butler, Alabama.” She then ordered 100 Lorcet 10/650 (Hy-drocodone, a schedule III controlled substance) for Dana Irons. As VanDevender began writing the information down, he looked at the caller ID and noticed that the call was from a Neshoba County phone number. After getting the information, VanDevender called the doctor’s office to verify the prescription. VanDevender testified that the doctor’s office did not call in this prescription.

¶ 3. VanDevender then reported this matter to the DeKalb Police Department and was instructed by Police Chief Jeff Jowers to fill the prescription and give it to Irons. According to VanDevender, Irons came in and asked if they had a prescription called in for her from Dr. Hens-leigh. VanDevender indicated that he did have the prescription and gave it to her. As Irons was leaving the store, Police Chief Jowers stopped her.

¶ 4. According to Irons, Jowers questioned her about the prescription, after which she was allowed to proceed on her way. Several days later, Irons was arrested and charged with attempting to obtain a controlled substance by fraud.

¶ 5. Detective Michael Oliver of the De-Kalb Police Department testified that on March 21, 2001, he informed Irons of her Miranda rights, she executed a waiver of those rights, after which she gave a statement. Irons testified that on the morning in question, she had stopped by the Texaco station and called the drug store to see if her prescription was ready. She then went to the drug store and picked it up.

¶ 6. Dr. Katherine Hensleigh testified that Irons had been treated by her from March 4, 1999 until July 10, 2000. She stated that the last time a prescription was called in for Irons was June 16, 2000. Dr. Hensleigh indicated that Irons called her office on July 25, 2000, requesting a refill of Lorcet and that request was denied because it was too early to refill the prescription.

¶ 7. Irons denied having made a telephone call claiming to be a nurse from Dr. Hensleigh’s office to try and obtain a refill of her medication.

ISSUES AND ANALYSIS

I.

Whether the indictment was defective.

¶ 8. Irons asks this Court to reverse and remand this matter because the trial court should not have allowed the trial to proceed on the amended indictment. The amended indictment changed the charge from an “attempt” to obtain a controlled substance by fraud to one of “obtaining” a controlled substance by fraud.

¶ 9. Regarding the amendment of indictments, Rule 7.09 of the Uniform Rules of Circuit and County Court Practice states: All indictments may be amended as to form but not as to the substance of the offense charged.... Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised. Id. It has been construed that if both the defense and the evidence remain unhindered after the indictment has been amended, the amendment is considered one of form rather than substance. Chandler v. State, 789 So.2d 109(¶ 4) (Miss.Ct. App.2001). The well-established test in this jurisdiction for determining whether the defendant is prejudiced by the amendment depends on whether a defense as it originally stood would be equally available after the amendment is made. Id. The court must therefore determine whether the evidence presented would be equally applicable to the amended indictment. Id.

¶ 10. Irons was charged with violating Mississippi Code Annotated Section 41-29-144. The proof of this charge remained the same, but more importantly, the defenses available to Irons remained the same. We find no merit to this issue.

II.

Whether the trial court erred in overruling Irons’ objections to leading questions.

¶ 11. Irons argues that the trial judge prejudicially disclosed his view of the evidence to the jury during VanDeven-der’s testimony when the defense objected to a leading question to the pharmacist regarding a telephone call.

¶ 12. The transcript reveals that the following occurred:

Q. Do you recall receiving a phone call from a Dr. Hensleigh’s office on that day?
BY MR. SMITH: Object, your Honor. Leading.
BY THE COURT: Well, I think it’s—
BY MR. DAVIS: Predicate, Judge.
BY THE COURT: — foundational. Overruled.
Q. You can answer.
A. Yes, sir.
Q. Would you please tell the Court the circumstances or tell the jury the circumstances surrounding that phone call specifically as it involved the defendant, Dana Irons.
BY MR. SMITH: Your Honor, I object. It calls for hearsay.
BY MR. DAVIS: We’re not offering it for the truth of the matter asserted, Judge.
BY THE COURT: I don’t think he’s offering it for the truth of the matter asserted but the fact that the phone call was received. Objection’s overruled.

¶ 13. Irons claims that the judge expressed his belief of how critical the telephone call was and that it was not a call from the doctor’s office. She contends that the comment by the judge was more than an explanation of his ruling. In support of her position, Irons cites Thompson v. State, 468 So.2d 852, 854 (Miss.1985), where the supreme court noted that “[i]t is a matter of common knowledge that jurors, as well as officers in attendance upon court, are very susceptible to the influence of the judge. The sheriff and his deputies, as a rule, are anxious to do his bidding; and jurors watch closely his conduct, and give attention to his language, that they may, if possible, ascertain his leaning to one side or the other, which, if known, often largely influences their verdict. He cannot be too careful and guarded in language and conduct in the presence of the jury, to avoid prejudice to either party....” This is recognized in Mississippi Code Annotated Section 99-17-35, which states in part: “The judge in any criminal cause, shall not sum up or comment on the testimony, or charge the jury as to the weight of the evidence.... ” Id. However, trial judges may explain their rulings on objections “so long as they do not comment upon the evidence in a prejudicial manner.” Lofton v. State, 818 So.2d 1229(¶ 10) (Miss.Ct.App.2002). Having reviewed the record, this Court does not find the trial judge’s explanation for his ruling to be an impermissible comment on the evidence, or a communication of his views.

III.

Whether Irons received effective assistance of counsel.

¶ 14. Irons contends that she received ineffective assistance of counsel for the following reasons: (1) counsel failed to present a motion to dismiss for failure to grant a speedy trial, (2) counsel failed to object to comments made by the trial judge, and (3) counsel failed to object to the denial of confrontation when hearsay was introduced on a material issue. To prevail on this issue, Irons must establish that (1) the performance of counsel was deficient and (2) she was prejudiced by counsel’s deficient performance. Day v. State, 818 So.2d 1196(1110) (Miss.Ct.App. 2002).

¶ 15. The first claim of ineffective assistance concerns a violation of the right to a speedy trial which would have required a hearing on the factors in Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 33 L.Ed.2d 101, (1972). However, this claim was not presented to the trial judge for review. This Court will not address an issue which has not been properly preserved for appeal. Bishop v. State, 771 So.2d 397(¶ 14) (Miss.Ct.App.2000).

¶ 16. Next, Irons claims that her attorney should have objected to the trial judge’s comments mentioned in issue two. With respect to the overall performance of the attorney, “counsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall[s] within the ambit of trial strategy.” Roberts v. State, 820 So.2d 790(¶ 7) (Miss.Ct.App.2002). Because the attorney did not object when Irons thought he should have objected does not establish that the attorney’s performance was ineffective.

¶ 17. Finally, Irons argues that the entries made by the nurse at Dr. Hensleigh’s office were hearsay and that the nurse, or person that made the entries, should have been presented as a witness. Irons maintains that her attorney should not have allowed this information (exhibit 8) to be introduced. This exhibit was offered by her attorney and may be considered as trial strategy. Roberts, 820 So.2d 790 at (¶ 7). Having a trial strategy negates an ineffective assistance of counsel claim, regardless of counsel’s insufficien-cies. Hall v. State, 735 So.2d 1124(¶ 10) (Miss.Ct.App.1999), Therefore, we find that Irons has failed to prove her claim of ineffective assistance of counsel.

IV.

Whether the weight and sufficiency of the evidence support the verdict.

¶ 18. Irons argues that this was a circumstantial evidence case and the contradictions between her version and the State’s version do not support a guilty verdict.

¶ 19. In viewing the weight and sufficiency of the evidence, this Court adheres to the following: “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an unconscionable injustice.” Carter v. State, 803 So.2d 1191(¶ 5) (Miss.Ct.App.1999).

¶ 20. On the other hand, a challenge to the sufficiency of the evidence requires a determination that, as to one or more essential elements of the crime, the State’s evidence is so lacking that a fair-minded juror could only find the defendant not guilty. McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 21. The evidence presented at trial revealed that on August 21, 2000, VanDe-vender received a phone call from an individual who indicated that she worked for Dr. Hensleigh. The individual called in a prescription for Dana Irons. Irons went to VanDevender Drugs and indicated that she came to pick up a prescription called in by Dr. Hensleigh’s office.

¶ 22. The State also offered Dr. Hens-leigh’s testimony that Irons contacted her office requesting a refill of Lorcet and that her office denied Irons’ request.

¶ 23. In opposition to the State’s evidence, Irons testified that she did not make a phone call to the drug store from the above number and did not realize that the phone number was listed to her address that same day. She acknowledged calling the doctor’s office to verify whether she had another refill.

¶ 24. Applying the standards this Court is bound to follow in evaluating both the weight and sufficiency of the evidence, this Court finds no error and accordingly, we must affirm the trial court.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF KEMPER COUNTY OF CONVICTION OF OBTAINING A CONTROLLED SUBSTANCE BY FRAUD AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THREE YEARS SUSPENDED AND FIVE YEARS OF SUPERVISED PROBATION AND FINE OF $1,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO KEMPER COUNTY.

BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. McMILLIN, C.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J., BRIDGES, LEE AND GRIFFIS, JJ.

McMILLIN, C.J.,

concurring:

¶26. I concur in the decision of the majority to affirm this conviction. However, it is my view that the majority’s analysis regarding the court-ordered amendment to the indictment does not fully address the legal issues raised in this appeal. I would conclude that the amendment was allowed in error but that, on the particular facts of this case, the error was harmless.

¶ 27. First, it must be observed that the legislative practice of defining criminal conduct in this state, insofar as attempts at criminal behavior are concerned, takes two different directions. In one instance, the State defines all the essential elements of the crime in one statute, but preserves by separate statute its right to punish those whose apparent purpose is to commit that crime but who fall short for reasons beyond their control. An example of this is the crime of grand larceny, as defined by Miss.Code Ann. § 97-17-41(1) (Supp.2003), considered in conjunction with the general “attempt” statute found at Section 97-1-7, which provides criminal punishment for one who does “any overt act toward the commission [of an offense], but [who] shall fail therein, or shall be prevented from committing the same.... ” Miss.Code Ann. § 97-1-7 (Rev.2000). In the other instance, the State defines the elements of the crime in a self-contained enactment where a particular crime is defined and one of the elements is framed in the alternative as either (a) accomplishing a particular act, or (b) attempting to accomplish the act. An example of this is found in the armed robbery statute, which defines the crime as either taking or attempting to take away the property of another by violence or by exhibiting a deadly weapon. Miss.Code Ann. § 97-3-79 (Rev.2000). Thus, once a person commits an act of violence or brandishes a deadly weapon in an effort to deprive another of property, an armed robbery has been committed without regard as to whether the culprit is successful in obtaining the property. In such a situation, though the concept of “attempt” comes into play in measuring the success of the culprit in actually obtaining the property, it is incorrect to speak of an “attempted armed robbery.” See Stevens v. State, 840 So.2d 785, 787(¶ 10) (Miss.Ct.App.2003).

¶ 28. The statute now under consideration in this case is of the latter variety; that is, it defines the crime as being the commission of an overt fraudulent act whose purpose is to permit the actor to obtain controlled substances without proper legal authority for doing so. Miss.Code Ann. § 41-29-144(1) (Rev.2001). Thus, it is the overt act of fraud or misrepresentation that constitutes the completed crime without particular regard as to whether the act accomplished its intended purpose of actually obtaining contraband narcotics.

¶ 29. The issue that presents itself, therefore, is what role, if any, the law relating to the general attempt statute (Section 97-1-7) has in relation to such crimes as that for which Irons now stands convicted. That is of some importance based on the fact that, in the case of an indictment for an attempted crime brought under Section 97-1-7, evidence showing unequivocally that the crime was, in fact, accomplished serves to invalidate a conviction on the attempt charge. Miss.Code Ann. § 97-1-9 (Rev.2000). Though there does not appear to be any case law directly on point, the necessary corollary to that proposition is that it would be improper to permit an amendment to an indictment brought under the general attempt statute to charge instead the completed crime since that would mean a conviction could be obtained under the amended indictment upon proof of facts that would render invalid a conviction obtained under the original indictment. It seems evident, without saying more, that such an amendment would so alter the nature of the charge as to be considered substantive in nature.

¶ 30. Is the same result mandated in, for instance, an armed robbery conviction when the State charges only an attempt to obtain property by one of the prohibited means defined in the statute but the proof shows unequivocally that the victim was, in fact, deprived of the property? No authority appears to be directly on point, but, on purely logical principles only, it would not appear that the same issues are raised. In such crimes as armed robbery and the fraudulent procurement of narcotics, the State’s interest appears to be in punishing — and hopefully deterring — certain types of behavior harmful to society that are undertaken with some underlying motivation. In the case of armed robbery, the State seeks to deter the actual infliction of violence or the inherently-dangerous brandishing of deadly weapons in a threatening manner when the aim of that behavior is to deprive another person of his property. In that situation, the harm to society has already been incurred before it is apparent whether or not the effort to obtain the property has succeeded. The State seems to intend to punish the act of violence or brandishing of the deadly weapon and, thus, considers the crime as having been accomplished and the injury to society to be essentially the same without particular consideration as to whether these harmful acts accomplished their intended purpose. This notion is borne home by the fact that robbery is a crime against the person rather than a crime of property even though its ultimate objective is the unlawful acquisition of property belonging to another.

¶ 31. Similarly, in the case before us, it would appear reasonable that the State is attempting to discourage any manner of scheme or artifice intended to fraudulently induce one rightfully in possession of controlled narcotics to part with that possession in a manner not authorized by law. Because of the necessary safeguards and precautions required of those in charge of administering the distribution of narcotic substances, the mere overt effort of attempting to improperly overcome or circumvent these legal safeguards has caused a societal injury that may not be, and often is not, significantly increased by the fortuitous event of whether the subterfuge is, or is not, successfully practiced. It is for that reason that the same crime has been accomplished whether or not the narcotics are actually obtained, and, in that sitúation, it does not appear proper to let the perpetrator escape punishment simply because his efforts were perhaps more successful than the State originally gauged when framing its indictment.

¶ 32. It would be my view that the amendment to change from “attempted to obtain” to “obtained” was unnecessary. There was more than sufficient proof that Irons attempted to obtain contraband narcotics through various misrepresentations to the druggist. At that point, the crime as defined in Section 41-29-144(1) was accomplished, and evidence tending to show that her misrepresentations actually succeeded was surplusage.

¶ 33. In that regard, I would point out that there seems to be a legitimate question as to whether she did actually obtain the drugs by fraudulent means within the meaning of the statute since, in a case on the related crime of obtaining money through false pretenses, the supreme court has held that the false pretenses must be the “moving cause” in the result. For example, when a deputy sheriff, in the course of a criminal investigation, paid money for a bottle of oil being falsely represented by the seller as a cure for arthritis, a conviction could not stand because the officer did not rely on the representations when paying the money for the oil. Hughes v. State, 326 So.2d 469, 471 (Miss.1976). Similarly, in this case it is at least arguable that Irons’s efforts were not the moving cause in the delivery of the drugs since they were delivered to her primarily as a result of the secret directive of a law enforcement official at a time when the druggist had already become so suspicious of Irons that it is doubtful he would have filled the prescription anyway.

¶ 34. I, therefore, would affirm, but with this added explanation of why the amendment did not constitute reversible error.

SOUTHWICK, P.J., BRIDGES, LEE, AND GRIFFIS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

      . Mississippi Code Annotated Section 41-29-144 (Rev.2000) provides: (1) It is unlawful for any person knowingly or intentionally to acquire or obtain possession or attempt to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge. (2) It is unlawful for any person knowingly or intentionally to possess, sell, deliver, transfer or attempt to possess, sell, deliver or transfer a false, fraudulent or forged prescription of a practitioner. (3) Any person who violates this section is guilty of a crime and upon conviction shall be confined for not less than one (1) year nor more than five (5) years and fined not more than one thousand dollars ($1,000.00) or both.

      . The Barker court identified four factors which are to be considered in making such a determination: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant has asserted his right to a speedy trial; and (4) whether the defendant has been prejudiced by the delay. No one factor is dispositive; rather, they must be considered together on a case by case basis.


author: SOUTHWICK, P.J.,

text:
    James R. MAYO a/k/a James Ricky Mayo, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01927-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.
    Rehearing Denied Aug. 3, 2004.
    Certiorari Denied Nov. 18, 2004.

      James A. Williams, Meridian, attorney for appellant.

      Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. James Mayo was convicted of robbery by a Lauderdale County Circuit Court jury. On appeal, he claims the following as error: introduction of evidence of his prior criminal record and that Mayo used the money from this robbery to buy cocaine; mention of a “strong arm robbery” by a witness; permitting leading questions on direct examination of the victim; and the giving of allegedly conflicting jury instructions. Mayo also claims that he received ineffective assistance of counsel and that the verdict was not supported by evidence. We find no error and affirm.

FACTS

¶ 2. On August 6, 2001, Charles and Adell Morgan were in their home. Mr. Morgan was eighty-one years old, while his wife was seventy-seven. Around 8:00 p.m., Mr. Morgan answered a knock at the door. A person whom he knew as “Mayo,” who worked across the street at the Salvation Army, asked to borrow jumper cables. Mr. Morgan went to put on his shoes before retrieving the cables from his truck. Mayo followed him into the back of the house. At some point, Mayo asked if Mr. Morgan had any money; Morgan said that he did not. Then Mayo asked for his wallet, but Mr. Morgan replied that he did not have one. Mayo insisted.

¶ 3. Upon hearing this exchange, Mrs. Morgan came from another room and asked Mayo to leave the house or she would call the police. She tried to retrieve a portable telephone from the basket of her walker, but Mayo grabbed the telephone. Mayo then held Mr. Morgan by his belt and the back of his pants while leading him around the house. Mr. Morgan decided to give Mayo his wallet. Mayo then demanded Mrs. Morgan’s wallet, but she denied having one. Mayo left the house with the telephone and $30-$40 from Mr. Morgan’s wallet.

¶ 4. Mr. Morgan used another telephone to call the police. He went outside and learned from a security guard at a nearby business the direction that Mayo had gone. Mr. Morgan gave the investigating officer this information, including the name of “Mayo.”

¶ 5. Recalling that he was familiar with a person named Mayo, one of the officers went to the police station and prepared a photographic lineup for Mr. Morgan to view. Mr. Morgan immediately identified Mayo’s photograph. The police officer then patrolled the neighborhood and found Mayo sitting on the porch of a home. Mayo was arrested.

¶ 6. Trial was held in August 2002. Mayo was found guilty of robbery and was sentenced to ten years in prison and ordered to pay restitution, fines, and court costs. Mayo appeals.

DISCUSSION

1. Evidence of extraneous matters

¶ 7. Mayo claims that statements made by the prosecutor and the investigating officer improperly revealed that he had a criminal record. This issue was not raised at trial and is therefore waived on appeal. Cavett v. State, 717 So.2d 722, 726 (Miss.1998).

¶ 8. Mayo also argues that the admission of a statement that he made to an investigating officer was reversible error. In the statement, Mayo summarized the crime, then said that he used the money to buy crack cocaine. In deciding to admit this statement, the trial court found that the probative value of the statement was not greatly outweighed by its prejudicial effect. M.R.E. 403. The trial court ruled that this statement was admissible as proof of motive. We find no error.

2. Mis-identifying crime

¶ 9. Mayo argues that two detectives should not have been allowed to identify the crime to which they were responding. Both men reported that the radio dispatch that they heard indicated that a strong arm robbery had occurred. The defense objection was overruled. There was no explanation to jurors of the meaning of “strong arm robbery.”

¶ 10. Mayo alleges that reversal is required because of a precedent in which an officer was allowed to give his opinion as to the crime that had occurred. Holliday v. State, 758 So.2d 1078, 1080-81 (Miss.Ct. App.2000). No one gave an opinion that what Mayo committed was a strong arm robbery. The officers were merely recounting what caused them to go to the Morgan residence.

¶ 11. This explanation of events did not prejudice the defense.

3. Leading questions

¶ 12. The State’s direct examination of one of the victims included several leading questions. Mr. Morgan was eighty-two years old at the time of trial. The State is given latitude in the use of leading questions during direct examination of an elderly witness. Price v. State, 749 So.2d 166, 167 (Miss.Ct.App.1999). The defense objected to leading questions only one time, and it was overruled. We find the questions here to have been appropriate.

k- Jury Instructions

¶ 13. Mayo claims that two jury instructions were conflicting. Jury instruction C-8, also known as S-l, was the instruction on the elements of the crime of robbery. The record reveals that the trial judge asked whether or not there was any objection to this instruction. The reply by Mayo’s attorney was “No, sir.” Jury Instruction C—10 as originally proposed was collaboratively revised by the State and Mayo’s attorney. The final result was a lesser-included offense instruction, D-3(a). The trial judge asked whether there was any objection to the instruction. Mayo’s attorney had none.

¶ 14. The absence of trial-level objections means that these issues were not preserved for appellate review. Stevens v. State, 808 So.2d 908, 924 (Miss.2002).

5. Ineffective Assistance of Counsel

¶ 15. Mayo argues that he received ineffective assistance of counsel in the following areas: (1) inadequate jury instructions; (2) failure to prove that Mayo owned a car; (3) failure to object to leading questions; (4) agreeing with facts as presented by the State in opening statement; and (5) failure to file motion for speedy trial. We address the first four together.

¶ 16. In determining whether Mayo received ineffective assistance of counsel, he must demonstrate that his attorney’s performance was defective and that this deficiency deprived him of a fair trial. Moore v. State, 676 So.2d 244, 246 (Miss.1996). The burden is on Mayo to demonstrate both. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). A high degree of deference is given to the performance of the attorney when there is a claim of ineffective assistance of counsel. Jackson v. State, 815 So.2d 1196, 1200 (Miss.2002). There is a rebuttable presumption that the performance of the attorney was competent and was well within the broad range of reasonableness. Id. We find nothing in these allegations to suggest meaningful deficiencies by the attorney.

¶ 17. Mayo also claims that his attorney should have pursued the possibility of statutory and constitutional speedy trial violations. Statutory speedy trial claims are measured from the date of arraignment. Miss.Code Ann. § 99-17-1 (Rev.2000). If a defendant waives arraignment, that date is considered day one on the speedy trial calendar. Poole v. State, 826 So.2d 1222, 1228 (Miss.2002). Mayo waived arraignment on December 7, 2001, and was tried 263 days later on August 27, 2002. Mayo’s statutory right to be tried within 270 days was not violated.

¶ 18. As to the Sixth Amendment speedy trial right, four factors are to be considered in measuring for possible violations. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We examine each.

¶ 19. Length of Delay. Here, the pertinent time began to run from the date Mayo was arrested on August 6, 2001. Moore v. State, 837 So.2d 794, 798 (Miss. Ct.App.2003). From this date until trial, 386 days passed. The Supreme Court has held that a delay of at least eight months is “presumptively prejudicial.” Smith v. State, 550 So.2d 406, 408 (Miss.1989).

¶ 20. Reason for Delay. The record does not indicate the reason for delay of about three months between arrest and indictment. Less than one month elapsed between the time of indictment on November 16, 2001, until the plea on December 7, 2001. Initially, trial was set for February 26, 2002. A total of 182 days was granted in continuances. These continuances were granted for good cause including illness of judge, plea negotiations, and the deployment of a witness in active military duty. Two continuances were granted because of a crowded trial docket which required the judge to attend to other trials. Polk v. State, 612 So.2d 381, 387 (Miss.1992). We find no error here.

¶ 21. Assertion of Right. Mayo never asserted a right to a speedy trial by properly filing a motion. Instead, we find an instance on February 26, 2002, where Mayo signed an order resetting the case which included a statement that he waived his right to a speedy trial.

¶ 22. Prejudice. There are no assertions by Mayo of prejudice. Because there is no indication of deliberate delay and no discernable prejudice, the balance is in favor of rejecting the speedy trial claim. Rhymes v. State, 638 So.2d 1270, 1275 (Miss.1994). We do.

Issue 6: Guilty Verdict

¶ 23. Mayo claims that the weight and sufficiency of the evidence do not support a guilty verdict. It was reasonable for the jury, upon the evidence at trial, to conclude that Mayo robbed Mr. Morgan. There was evidence on every element of the crime, and the weight of that incriminating evidence was not counterbalanced by overwhelming evidence to the contrary.

¶ 24. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF ROBBERY AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, PAY FINE OF $2,500 AND RESTITUTION OF $65 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDER-DALE COUNTY.

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