author: KING, P.J.,

text:
    Michael A. GRAHAM, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01208-COA.
    Court of Appeals of Mississippi.
    Jan. 27, 2004.
    Rehearing Denied April 27, 2004.
    Certiorari Denied July 22, 2004.

      Timothy Daniel Record, Jamie Kelly McBride, Jackson, attorneys for appellant.

      Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, P.J., IRVING and GRIFFIS, JJ.
   KING, P.J.,

for the Court.

¶ 1. Michael A. Graham was convicted of DUI, third offense, in the Neshoba County Circuit Court, and sentenced to a term of two and one-half years in the custody of the Mississippi Department of Corrections and ordered to pay a fine. The trial judge ordered that 120 days of the sentence be served in the Neshoba County Jail, with the remainder of the sentence to be served under house arrest, pursuant to the regulations of the Mississippi Department of Corrections. Aggrieved by his conviction and sentence, Graham has appealed and raises the following issues:

I. Whether the trial court erred in failing to hold that the roadblock was an unconstitutional seizure which violated Graham’s Fourth Amendment rights.
II. Whether the trial court erred in allowing Officers Peden and Callahan to give testimony regarding the administration of the HGN test.
III. Whether the trial court erred by allowing the results of Graham’s intoxi-lyzer test into evidence when Officer Peden failed to comply with the mandated twenty minute pre-test observation period.
IV. Whether the verdict was against the overwhelming weight of the evidence.

FACTS

¶ 2. On November 24, 2001, at approximately 9:00 p.m., Graham was stopped at a roadblock set up by the City of Philadelphia Police Department on Highway 21 South inside the city limits. The purpose of the roadblock was to check drivers’ licenses and conduct safety checks. Officer Mitch Peden suggested the location of the roadblock. Advance notice of the roadblock was given to the public by newspaper publication.

¶ 3. Officer Brian Callahan of the Philadelphia Police Department approached Graham’s vehicle and asked to see his driver’s license. Graham stated that he did not have his license with him. According to Callahan, he smelled the strong odor of an intoxicating beverage, and Callahan asked Graham to pull over to the side of the road.

¶ 4. Called over to assist Callahan, Pe-den asked Graham to step to the back of the vehicle. Callahan testified that Graham “stumbled one time and almost fell, but he caught himself on the bed of the truck before he fell and hit the ground” and had slurred speech.

¶ 5. Peden administered the HGN field sobriety test, which indicated that Graham might have been driving while intoxicated. Graham was transported to the Neshoba County Jail where he was offered an intox-ilyzer test.

¶ 6. According to Officer Peden, Graham was given his rights regarding the breath alcohol analysis. The machine was activated and Graham was offered the opportunity to take the breath alcohol exam. This is a timed test with' a limited window of opportunity to complete it. Graham refused the exam, and the available time expired. Thereafter, Graham requested that he be given the opportunity to take the exam.

¶ 7. On cross-examination, Peden indicated that the first test was offered to Graham at 9:44 p.m. and the second test was offered approximately fourteen minutes later.

ISSUES AND ANALYSIS

I.

Whether the trial court erred in failing to hold that the roadblock was an unconstitutional seizure which violated Graham’s Fourth Amendment rights.

¶ 8. Graham asserts that his Fourth Amendment rights were violated when he was stopped at a sobriety checkpoint which was “randomly set up through the unbridled discretion of the officer in the field,” and resulted in an unconstitutional seizure. He cites Drane v. State, 493 So.2d 294, 296 (Miss.1986) for the proposition that “the stop of a vehicle is a ‘seizure’ for Fourth Amendment purposes.” He claims that the roadblock site had not been determined by policy-making officials, but rather by the field officers themselves.

¶ 9. This Court has observed that a determination of whether a roadblock is a reasonable “seizure” for purposes of the Fourth Amendment requires “a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Dixon v. State, 828 So.2d 844(¶ 6) (Miss.Ct.App.2002). Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. Id.

¶ 10. According to the record, the City had received a grant to establish roadblocks to conduct safety checks during the Thanksgiving holiday. The officers met with the police chief prior to the establishment of the roadblocks to discuss the location and operation of these roadblocks. The determination of the location of each roadblock was made by the police chief. While the record does not indicate the adoption of written directives regarding these roadblocks, it does indicate that all persons approaching the roadblock were to be stopped, without exception. The absence of specific written directives is not a fatal flaw, so long as the officers are neither arbitrary nor capricious in determining who will be stopped. Dixon v. State, 828 So.2d 844(119) (Miss.Ct.App. 2002); Dale v. State, 785 So.2d 1102(1113) (Miss.Ct.App.2001).

¶ 11. Nothing in the record before this Court suggests that this roadblock was executed in an unreasonable or overly intrusive manner, or that its stated purpose was in any way misused. Accordingly, this Court finds no merit in this issue.

II.

Whether the trial court erred in allowing Officers Peden and Callahan to give testimony regarding the administration of the HGN test.

¶ 12. Graham asks this Court to find error in the testimony regarding the HGN test. It must be noted that Graham did not object to testimony regarding the HGN. In the absence of a contemporaneous objection, this issue is not properly preserved for appellate review. Crosswhite v. State, 732 So.2d 856(¶ 14) (Miss.1998). We will not find a trial court to have committed error on a matter not presented to it for decision. Fulgham v. State, 770 So.2d 1021(¶ 4) (Miss.Ct.App.2000).

¶ 13. Notwithstanding the failure to object to this testimony, this Court would note that the HGN is not admissible to establish intoxication, but is admissible to show probable cause to make an arrest and to administer an appropriate test to determine intoxication. Young v. City of Brookhaven, 693 So.2d 1355, 1361 (Miss. 1997). In this case, evidence of the HGN was offered merely to explain the officer’s actions, rather than as evidence of guilt. This issue is without merit.

III.

Whether the trial court erred by allowing the results of Graham’s intoxi-lyzer test into evidence when Officer Peden failed to comply with the mandated twenty minute pre-test observation period.

¶ 14. Graham asserts that the in-toxilyzer results should not have been admitted into evidence because Officer Peden failed to comply with the “mandatory twenty minute pre-test observation period.” Mississippi Code Annotated Section 63-11-5(1) provides that no intoxilyzer test shall be given to any person within fifteen minutes of consumption of any substance by mouth.

¶ 15. Officer Peden testified that approximately forty-four minutes passed from the time he encountered Graham until the time the test was run, that Graham was in his presence the entire time, and was not allowed to take anything by mouth during that time. Where a conflict existed in the evidence, it was the trial judge’s function to determine the admissibility of the evidence not its weight. Byrd v. State, 154 Miss. 742, 750, 123 So. 867, 869 (1929). The judge performed his function and properly held the evidence to be admissible.

¶ 16. Where the evidence is in conflict, it is the responsibility of the jury to determine the weight and credibility to be accorded witness testimony. Briggs v. State, 741 So.2d 986(¶ 11) (Miss.Ct.App.1999). In this case there existed a dispute as to the circumstances under which the intoxilyzer test was given to Graham. The jury found the testimony of Officer Peden to be credible on this question. This Court cannot say that was wrong.

¶ 17. This issue is without merit.

IV.

Whether the verdict was against the overwhelming weight of the evidence.

¶ 18. Graham contends that reasonable men could not have found beyond a reasonable doubt that he was guilty of DUI, and therefore the verdict was against the overwhelming weight of the evidence.

¶ 19. In determining whether a verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and 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. Ford v. State, 753 So.2d 489(¶ 8) (Miss.Ct.App.1999).

¶ 20. The State presented evidence that when stopped at the roadblock, Graham had a strong odor of alcohol on his breath. Peden indicated that Graham’s speech was slurred and he had trouble walking to the back of the vehicle. Graham was taken to the police station, where a breath alcohol test showed a blood alcohol level of .188. Additionally, while completing the booking process, Graham passed out.

¶ 21. In looking at the above evidence, we find that reasonable-minded jurors had substantial credible evidence, upon which they could have found Graham guilty beyond a reasonable doubt of DUI.

¶ 22. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF DUI-THIRD OR SUBSEQUENT OFFENSE AND SENTENCE OF TWO AND ONE-HALF YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $2,000, WITH ONE HUNDRED TWENTY DAYS OF THIS SENTENCE TO BE SERVED IN THE NESHOBA COUNTY JAIL AND REMAINDER OF THE SENTENCE TO BE SERVED UNDER HOUSE ARREST PURSUANT TO REGULATIONS WITH THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: LEE, J.,

license: Public Domain

text:
    Leon McCOY, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01461-COA.
    Court of Appeals of Mississippi.
    Jan. 27, 2004.
    Rehearing Denied April 13, 2004.
    Certiorari Denied July 22, 2004.

      James A. Williams, Meridian, attorney for appellant.

      Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On June 17, 2002, a jury in the Circuit Court of Lauderdale County found Leon McCoy not guilty of kidnaping but guilty of sexual battery of S.C., a female minor. McCoy had originally been indicted for kidnaping and statutory rape, but the rape charge was later changed to sexual battery. McCoy, as an habitual offender, was sentenced to serve thirty years in the custody of the Mississippi Department of Corrections with no possibility of parole. McCoy now appeals to this Court asserting the following issues: (1) his right to remain silent was improperly inquired into on cross-examination; (2) the trial judge communicated to the jury that he believed the victim was telling the truth and thereby denied him a fair trial; (3) the trial court erred in overruling his objection during the State’s closing argument; (4) the trial court erred in admitting the victim’s statement to her aunt describing what had happened to her; (5) the overwhelming weight and sufficiency of the evidence did not support the guilty verdict; (6) the trial judge erred in granting jury instruction C-10; and (7) he was denied effective assistance of counsel.

FACTS

¶ 2. On December 10, 1999, S.C. and a friend were walking to school when McCoy drove by and asked S.C.’s friend if he wanted a ride to school. S.C.’s friend got into the car while S.C. kept walking. McCoy told S.C. that if she got in the car he would not hurt her. S.C. got into the car and McCoy then drove them to Marion Park. Both S.C. and her friend exited the car. As S.C. was walking towards Meridian High School, McCoy came back, grabbed her, tied her up, and put her in his car. After driving down a dirt road, McCoy stopped the car and began to take off S.C.’s clothes. McCoy then inserted his finger into S.C.’s anus and starting licking her genitals. At some point McCoy inserted his penis into S.C.’s vagina. S.C. testified that McCoy was holding a weapon to her head, which she at first thought was a gun, but was later determined to be a knife.

¶ 3. After McCoy was finished with S.C., he untied her, put her in the front seat, and drove her to an apartment complex where he proceeded to kick her out of the car. S.C. immediately ran to her aunt’s apartment and reported what had happened. S.C. testified that she had not put up much of a fight because she was afraid, but there were scratches on her leg and a bald spot on her head where McCoy had pulled her hair out. McCoy was taken into custody soon after the incident.

DISCUSSION OF ISSUES

I. WAS McCOY’S RIGHT TO REMAIN SILENT IMPROPERLY INQUIRED INTO UPON CROSS-EXAMINATION?

¶ 4. In his first issue, McCoy contends that the State on cross-examination improperly asked him if he invoked his constitutional right not to incriminate himself after being arrested. McCoy cites Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) for the proposition that once a suspect has been given a warning pursuant to Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), then using the exercise of the right to remain silent to impeach the defendant at trial undermines the right not to incriminate oneself. According to our supreme court, a prosecutor’s repeated reference to a defendant’s post-arrest silence, after he received warnings that he need not answer questions, violated due process. Caston v. State, 823 So.2d 473(¶ 97) (Miss.2002); see also Johnson v. State, 596 So.2d 865, 868-69 (Miss.1992).

¶ 5. However, there can be no infringement upon the right to remain silent when the defendant does not exercise his right to remain silent when questioned at the time of the arrest. Sheely v. State, 836 So.2d 798(¶ 10) (Miss.Ct.App.2002). Furthermore, it is not error to allow the State on cross-examination to ask about an issue already inquired into by the defendant’s counsel on direct examination. Cheeks v. State, 843 So.2d 87(¶ 9) (Miss.Ct. App.2003). On direct examination, McCoy testified about his experience in the police station. McCoy stated that he spoke to Detective Thompson, who brought him a waiver of rights form at 4:00 p.m. At that time, McCoy signed a statement that he understood his rights, but not the statement that he waived his rights. After stating that he did not say anything to Detective Thompson, McCoy did admit on cross that he told Detective Thompson that he did not do it, but only after he signed the statement. Upon further questioning, McCoy contended that telling the detective that he was innocent did not amount to giving a statement. Detective Lewis also testified that, later that evening, McCoy admitted that he had inserted his finger in S.C.’s anus and licked her genitals, but had not inserted his penis into her vagina. We find it interesting that McCoy claims his right to silence was infringed when he admitted to not remaining silent. We fail to see how McCoy’s due process rights were violated once he failed to remain silent; thus, this issue is without merit.

II. DID THE TRIAL COURT DENY McCoy A FAIR TRIAL BY COMMUNICATING TO THE JURY THAT HE BELIEVED THE VICTIM WAS TELLING THE TRUTH?

¶ 6. In his second issue, McCoy contends that the judge believed S.C.’s testimony and communicated this fact to the jury in his rulings. McCoy also believes that the judge should have allowed a peremptory instruction in order to show the jury that he was impartial. In addition, McCoy claims that the judge further prejudiced his case when he referred to S.C. as the “victim” in the jury instructions.

¶ 7. McCoy’s contention that the judge believed S.C.’s testimony centers on different places in the record where the judge spoke the word “truth.” Actually, McCoy is mistaken in suggesting that the judge was partial to S.C.’s version of the events. The judge made statements about the “truth of the matter” in ruling on various objections. These were not remarks about the credibility of the witnesses, rather they were findings in response to hearsay objections. In fact, the judge allowed McCoy to present testimony concerning the possibility that S.C. had lied by overruling the State’s hearsay objections. We fail to see how the jury could misinterpret the judge’s ruling on eviden-tiary matters as an indication that he believed S.C.’s version of the facts.

¶ 8. McCoy also mentions that a peremptory instruction should have been granted on the kidnaping charge in order to show the jury that the judge was impartial. Mississippi law is clear on the subject of peremptory instructions in criminal cases: “peremptory instructions should be refused if there is enough evidence to support a verdict.” Warn v. State, 349 So.2d 1055, 1055 (Miss.1977). See also Hicks v. State, 580 So.2d 1302, 1304 (Miss.1991); Benson v. State, 551 So.2d 188, 193 (Miss. 1989). As McCoy was acquitted on the kidnaping charge, we fail to see how the denial of a peremptory instruction is relevant on this appeal. However, since the instruction was refused, the judge obviously found that there was enough evidence for the jury to find McCoy guilty of kid-naping.

III. DID THE TRIAL COURT ERR IN OVERRULING McCoy’S OBJECTION DURING THE STATE’S CLOSING ARGUMENT?

¶ 9. In his third issue, McCoy claims that the trial court erred in overruling his objection to statements made during the State’s closing argument. Specifically, McCoy argues that the State should not have been allowed to state that it was the grand jury that decided what to charge him with, not the victim. In determining whether a prosecutor’s argument necessitates reversal, the test entails whether the “natural and probable effect of the prosecuting attorney’s improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice.” Dunaway v. State, 551 So.2d 162, 163 (Miss.1989). The trial judge is entrusted with the discretion in determining whether the improper statement should result in a mistrial. Alexander v. State, 602 So.2d 1180, 1182 (Miss.1992). However, in Holland v. State, 705 So.2d 307, 344-45 (Miss.1997), the court determined that the prosecutor was entitled to answer a question raised by the defense and that the prosecutor’s statement was “in direct response” to the defense argument.

¶ 10. In his closing argument, McCoy stated:

Obviously she has accused Leon of rape. That’s her interest. We don’t have rape, he’s not even charged with rape. We won’t go with rape.

In response to this statement, the State responded as follows in its closing argument:

When the defendant confesses to a sexual battery, that is pretty powerful evidence. And regardless of whether he knew he was doing it or not, a rape charge or whether or not he penetrated her with his penis or not is not really an issue here other than I guess Mr. Jordan wants to make it up for argument purposes. But, you know, the Grand Jury charged this, the Grand Jury decided to charge him, not [S.C.]. So whether it was rape or whether it was sexual battery, it’s kind of up to the Grand Jury to decide. And they decided that the defendant’s confession to sexual battery, that would be the charge.

¶ 11. McCoy was trying to infer that because he was not charged with rape, then S.C.’s version of the facts is untruthful. It then became necessary for the State to clarify that the victim does not decide what charge to bring against the accused, rather the grand jury does. The State did not imply that the grand jury believed McCoy to be guilty, only that, pursuant to McCoy’s confession to sexual battery, the grand jury thought it more appropriate to charge him with sexual battery. Upon objection by McCoy to the State’s argument, the trial judge stated, “It’s simple argument, objection is overruled.” The trial judge apparently did not find any unjust prejudice to McCoy as a result of this statement, and neither do we. This issue is without merit.

IV. DID THE TRIAL JUDGE ERR IN ADMITTING THE VICTIM’S STATEMENT TO HER AUNT DESCRIBING WHAT HAD HAPPENED TO HER?

¶ 12. In his fourth issue, McCoy claims that the trial judge erroneously ruled that S.C.’s statements to her aunt were excited utterances and, therefore, an exception to the hearsay rule. Trial courts, at their discretion, determine the competency of excited utterances. Stokes v. State, 797 So.2d 381(¶ 14) (Miss. Ct.App.2001). Furthermore, if a victim states the name of her attacker and the statement appears to be spontaneous and without indication of manufacture, then it should be received into evidence as an exception to the hearsay rule. Cunningham v. State, 467 So.2d 902, 905 (Miss. 1985). Mississippi Rule of Evidence 801(c) defines hearsay as a statement “offered into evidence to prove the truth of the matter asserted.” Mississippi Rule of Evidence 803(2) provides for an exception to the exclusion of hearsay evidence, namely that “a statement relating to a startling event or condition made while the declar-ant was under the stress of excitement caused by the event or condition” is not excluded by the hearsay rule. It is important that there has been no intervening matter to eliminate the state of excitement and call into question the reliability of the utterance. Berry v. State, 611 So.2d 924, 926 (Miss.1992).

¶ 13. Immediately after being kicked out of McCoy’s car, S.C. ran to her aunt’s apartment and told her what had happened. S.C. testified that she had been abducted, tied up, and raped. Her aunt testified that S.C. came to the door around 9:30 that morning and that her clothes were ripped off, her hair was messed up, she had bruises on her, and “she was just shocked real bad.” S.C.’s statements to her aunt were clearly within the excited utterance exception to the hearsay rule. The trial judge did not err in ruling that S.C.’s statements to her aunt could be heard by the jury; thus, we find this issue to be without merit.

V. DID THE OVERWHELMING WEIGHT AND SUFFICIENCY OF THE EVIDENCE SUPPORT THE GUILTY VERDICT?

¶ 14. In his fifth issue, McCoy claims that the verdict was against the overwhelming weight and sufficiency of the evidence. As McCoy addresses both the weight of the evidence and the sufficiency of the evidence, we will discuss each separately.

a. Ovenuhelming iveight of the evidence

¶ 15. We look to our standard of review in determining whether the jury verdict was against the overwhelming weight of the evidence:

[T]his Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Baker v. State, 802 So.2d 77(¶ 14) (Miss. 2001). It is within the discretion of the jury to accept or reject testimony by a witness, and the jury “may give consideration to all inferences flowing from the testimony.” Mangum v. State, 762 So.2d 337(¶ 12) (Miss.2000) (quoting Grooms v. State, 357 So.2d 292, 295 (Miss.1978)).

¶ 16. S.C. testified that she had been sexually molested by McCoy. McCoy denied the rape allegation, but did admit to sexually battering S.C. The jury’s verdict reflected S.C.’s version of events; thus, we cannot find that an unconscionable injustice results. This issue has no merit.

b. Sufficiency of the evidence

¶ 17. For the sufficiency of the evidence we look to our standard of review:

[T]he sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with [the defendant’s] guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Matters regarding the weight and credibility of the evidence are to be resolved by the jury. We reverse when, with respect to an element of the offense charged, the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty.

Muscolino v. State, 803 So.2d 1240(¶ 10) (Miss.Ct.App.2002) (citations omitted). Furthermore, the Mississippi Supreme Court has held that “the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where the testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized by a sex crime.” Collier v. State, 711 So.2d 458(¶ 15) (Miss.1998).

¶ 18. S.C. testified in detail as to what occurred once McCoy had abducted her, tied her up, and took her for a drive. At one point McCoy even admitted to Detective Lewis that he had inserted his finger in S.C.’s anus and licked her genitals. Throughout his brief, McCoy claims that S.C. was not a credible witness and that she lied about what occurred between them that day. However, S.C.’s testimony and conduct was consistent with someone who has been the victim of a sex crime. In light of S.C.’s testimony, we find that a reasonable and fair-minded jury could have easily found McCoy guilty of sexual battery; thus, the evidence was sufficient to support the verdict.

VI. DID THE TRIAL JUDGE ERR IN GRANTING JURY INSTRUCTION C-10?

¶ 19. McCoy contends that the trial judge erred in giving jury instruction C-10. McCoy argues that the instruction was flawed because using the connector “and/or” between the sexual acts did not require the jury to find that he both placed his finger in S.C.’s anus and licked her genitals. McCoy also claims that when the State places an allegation in the indictment, it is required to prove each allegation. The jury instruction in question is as follows:

2. The Defendant, Leon McCoy ... did wilfully and unlawfully engage in sexual penetration with [S.C.] ... by placing his finger in her anus and/or by performing oral sex upon her....

¶ 20. At the time of the jury charge discussion, McCoy objected to C-10 on the ground that the instruction should substitute the word “inserting” for the word “placing.” However, McCoy did not object to changing the “or” to “and/or.” The exchange was as follows:

BY THE COURT: ... The word “or,” o-r, was changed to read “and/or,” otherwise the instruction was submitted by the State as written. Pat, I don’t remember, if you did have an objection, would you state it in the record?
BY MR. JORDAN: Yes, sir, we had requested in lieu of placing his finger in her anus, insert, I think that is the proper term, Your Honor.

¶ 21. We note that McCoy also failed to raise this issue in his posttrial motion. The failure to make a contemporaneous objection waives the issue for purposes of appeal. Smith v. State, 729 So.2d 1191(¶ 87) (Miss.1998). “A trial judge will not be found in error on a matter not presented to him for decision.” Jones v. State, 606 So.2d 1051, 1058 (Miss.1992). We find this issue to be without merit.

VII. WAS McCoy DENIED EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 22. In his last issue, McCoy claims that the totality of circumstances of his counsel’s performance was such that he was denied effective assistance of counsel and, as a result, the trial judge should have declared a mistrial. Specifically, McCoy cites his counsel’s failure concerning jury instructions, judge’s comments, questioning the voluntariness of his statements, cross-examining S.C. about the details of the sexual acts, and in declining to make an opening statement. While looking to the totality of the circumstances, we must determine whether McCoy proved his counsel’s performance was deficient and whether this deficiency resulted in prejudice to McCoy. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We must discover if any of the purported errors were “outside the range of professionally competent assistance.” Id. at 690, 104 S.Ct. 2052.

¶ 23. Other than a few blanket statements about what McCoy felt his trial counsel should have done, he has neither proven that his counsel’s performance was deficient nor that, if there was a deficiency, prejudice resulted. In looking at the record, McCoy’s trial counsel extensively cross-examined S.C. and Detective Lewis and voiced objections when appropriate. We cannot find that McCoy was denied effective assistance of counsel; thus, this issue is without merit.

¶ 24. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER, IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

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


author: GRIFFIS, J„

text:
    Clouis W. WITT a/k/a Clovis Witt, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01929-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2004.
    Rehearing Denied April 27, 2004.
    Certiorari Denied July 29, 2004.

      Clouis W. Witt, appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   GRIFFIS, J„

for the Court.

¶ 1. Clouis Witt appeals the circuit court’s denial of his petition for post-conviction relief. We find no error and affirm.

FACTS

¶ 2. Clouis Witt was arrested and charged with armed robbery of the Mid-State Loan Company. On April 16, 1996, Witt pled guilty to armed robbery and was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections.

¶ 3. On April 12, 1999, Witt filed his first petition for post-conviction relief. The circuit court denied the petition. Witt appealed asserting ineffective assistance of counsel. On August 15, 2000, in Witt v. State, 781 So.2d 135 (Miss.Ct.App.2000), this Court affirmed the circuit court’s denial of post-conviction relief. The Mississippi Supreme Court then denied Witt’s writ of certiorari.

¶ 4. On May 4, 2001, Witt filed this his second and successive petition for post-conviction relief. Witt cites newly discovered evidence as the ground for relief. On May 21, 2001, the circuit court denied the petition. On appeal, Witt asserts four assignments of error. Finding this petition is barred, we affirm the circuit court’s denial of the petition for post-conviction relief.

ANALYSIS

¶ 5. On three separate grounds, we conclude that this Court lacks jurisdiction over this appeal. First, Witt failed to timely file his notice of appeal. The circuit court denied the petition on May 21, 2001. Witt filed his notice of appeal on July 2, 2001. Accordingly, we find that Witt’s appeal is dismissed as not timely filed pursuant to Rule 4(a) of the Mississippi Rules of Appellate Procedure.

¶ 6. Second, Witt’s first petition for post-conviction relief was rejected. Witt v. State, 781 So.2d 135 (Miss.Ct.App.2000). According to Mississippi Code Annotated Section 99-39-23(6), Witt’s second and successive petition for post-conviction relief is barred.

¶ 7. Finally, Witt’s petition for post-conviction relief, which is considered in this appeal, was filed beyond the expiration of the statute of limitations provided

under Mississippi Code Annotated Section 99-39-5(2).

¶ 8. For these reasons, we affirm the circuit court’s denial of the petition for post-conviction relief.

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

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


author: MYERS, J.,

text:
    Johnnie E. PACK, A Minor, and Vincent Pack, Appellants, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY and Karen Pack, Appellees and Karen Pack, Johnnie E. Pack, A Minor, and Vincent Pack, Appellants, v. Nationwide Mutual Fire Insurance Company, Appellee.
    No. 2003-CA-00258-COA.
    Court of Appeals of Mississippi.
    Feb. 17, 2004.
    Rehearing Denied May 25, 2004.
    Certiorari Denied July 29, 2004.
    Mark C. Baker, Brandon, James A. Bobo, Pearl, attorneys for appellant.
    J. Brian Kelley, F. Hall Bailey, Jackson, attorneys for appellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. This cause of action originated in the County Court of Rankin County. Vincent Pack brought suit on behalf of his minor son, Johnny Pack, against Karen Pack, Johnny’s mother, for injuries Johnny sustained as a result of Karen’s negligence. In addition, Karen filed a direct action against Nationwide Mutual Fire Insurance Company (Nationwide) seeking damages based on her negligent conduct. The two cases were consolidated by the county court. Each side filed motions on the contested issue of parental immunity. The county court granted Nationwide’s motion for summary judgment and denied the summary judgment motion filed on behalf of Johnny Pack. The matter was then appealed to the Circuit Court of Rankin County which affirmed the decision of the county court. The Packs appeal from this decision and raise the following issue.

DOES THE DOCTRINE OF PARENTAL IMMUNITY BAR THE CLAIM OF JOHNNY PACK AGAINST HIS MOTHER, KAREN PACK?

STATEMENT OF FACTS

¶ 2. On September 16, 1999, Johnny Pack, the four-year-old son of Vincent and Karen Pack, was struck by a car when he wandered onto a road adjacent to the home of Karen Pack’s mother and aunt. At the time of the accident, Karen Pack was visiting her family members. Karen admitted that she was not watching Johnny at the time the accident occurred. Johnny suffered serious permanent injuries as a result of the accident. Karen and Vincent Pack had a mobile home insurance policy with Nationwide that contained the following provision:

Section II, Coverage E — Personal Liability
We will pay damages the insured is legally obligated to pay due to bodily injury or property damage.

Based upon this policy, Vincent brought suit in the County Court of Rankin County against Karen and Nationwide on behalf of Johnny for negligent supervision. Karen filed a separate claim against her insurance carrier, Nationwide. The two cases were later consolidated. Karen admitted that she was negligent in her supervision of Johnny at the time of the accident.

¶ 3. Both sides agreed that the central issue in the case was parental immunity and each side filed motions for summary judgment on the issue. Nationwide contended that it was not obligated to pay for Johnny’s injury because the tortfeasor was his mother, Karen. Nationwide claimed that parental immunity barred Johnny’s suit against his mother. Vincent and Karen Pack contended that parental immunity should not bar Johnny’s claim. They cited the case of Glaskox By and Through Denton v. Glaskox, 614 So.2d 906 (Miss.1992), wherein the supreme court partially abrogated the doctrine of parental immunity in situations where the parent is negligent in the operation of a motor vehicle. The Packs argued that Glaskox should be extended to this case and therefore parental immunity should not be a bar to Johnny Pack’s claim.

¶ 4. The county court granted Nationwide’s motion for summary judgment and denied the Packs’ motion for summary judgment. A final judgment was entered reflecting the county court’s decision. From the final judgment, the Packs timely appealed their case to the Circuit Court of Rankin County. Based on identical legal theories, the Circuit Court of Rankin County affirmed the final judgment of the county court. From this decision, the Packs appeal to this Court for resolution of the issue of parental immunity.

LEGAL ANALYSIS

DOES THE DOCTRINE OF PARENTAL IMMUNITY BAR THE CLAIM OF JOHNNY PACK AGAINST HIS MOTHER, KAREN PACK?

¶ 5. In the present case, the Packs ask this Court to re-visit the longstanding doctrine of parental immunity. The doctrine of parental immunity bars an unemancipated child from suing his parents for injuries caused by the negligence of the parents. Hewellette v. George, 68 Miss. 703, 711, 9 So. 885, 887 (1891). Parental immunity was not a product of English common law but was first adopted as a rule of law in this state by the Hewellette case. The court, in Hewellette, based parental immunity on the “obligations of parents to care for, guide, and control children and the children’s duty to obey their parents” along with “the preservation of domestic tranquility.” Glaskox, 614 So.2d at 909. Although the doctrine continued to spread after the Hewellette decision, its erosion began in the early 1960s with some courts completely abolishing the doctrine and others severely limiting its application. Id.

¶ 6. In this state, the doctrine of spousal immunity was abolished in the decision of Burns v. Burns, 518 So.2d 1205 (Miss. 1988). In 1992, our supreme court followed the Bums decision by partially abrogating parental immunity in Glaskox. In that case, the court held:

We find Bums, as well as the decisions of jurisdictions abrogating the doctrine of parental immunity, persuasive and join the majority of other jurisdictions which abolish the principle of parental immunity where a minor is injured as a result of her parents’ negligent operation of a motor vehicle. There is no justification for barring children from enjoying the same rights of legal redress for wrongs done to them that others enjoy.

Glaskox, 614 So.2d at 911. In the case of Ales v. Ales, 650 So.2d 482 (Miss.1995), the court abolished an unemancipated child’s immunity from liability involving injuries to the child’s parent arising out of negligent operation of a motor vehicle. The Packs argue that the holding of Glaskox should be extended to allow children such as Johnny Pack to sue their parents regardless of the nature of the alleged act of negligence on the part of the parent.

¶ 7. The Packs present three arguments to support their position to extend Glas-kox. First, they mention the text in Glas-kox where the court stated, “For negligent or tortious conduct, liability is the rule. Immunity is the exception.... No sound justification appears for the fact that the law protects a minor’s contract or property rights, but offers no redress to the child for injury to his person.” Glaskox, 614 So.2d at 911. The Packs cite no other authority following this point and their reliance on it is misplaced. The primary rationale behind the Glaskox decision was the availability of liability insurance coverage. Id. The court was keenly aware that lawsuits by children against their parents would create strains on familial harmony. However, the court opined that such strains had a minimal effect when the parent was covered by liability insurance because the recovery for the child was not being paid directly by the parent but instead by the insurance carrier. Id.

¶ 8. The Packs’ second argument is related to the statement regarding insurance. The Packs point to the text of Glas-kox where the court stated that domestic tranquility is not disrupted when the child sues a parent who has liability insurance. They assert that the rationale of Glaskox should be extended to provide recovery for Johnny Pack. The Packs assert that similar to Glaskox and Ales, the tortfeasor, Karen Pack, was covered by liability insurance. However, the cases are distinguishable. The Packs’ case differs significantly from the facts of Glaskox and Ales in that it does not involve an automobile negligence claim but one of negligent supervision. The Packs’ reliance on the theory of liability insurance as a potential conflict barrier between the parent and the child is misplaced.

¶ 9. Requirements for automobile insurance coverage are governed by statute in Mississippi. Miss.Code Ann. § 63-15-3Q) (Rev.2003) (citing liability coverage) and § 83-11-101(1) (Rev.1999) (citing uninsured motorist coverage). Parents who are sued by their children or any other person injured by their negligent acts involving an automobile will likely be covered under an insurance policy. Such is not the scenario in the present case. Vincent and Karen Pack paid premiums to Nationwide for coverage under a mobile home policy. This Court will not speculate as to why this type of broad liability coverage existed in their policy. Unlike automobile insurance, this type of coverage was not required under state law and its availability is uncertain. The primary concern in cases such as Glaskox and Ales was the protection of an injured person when the other party had insurance. There is nothing, by law, that requires an insurance carrier to extend the type of liability coverage the Packs had and it is likely that given an extension of Glaskox, the coverage would no longer be provided by the insurance carrier. Essentially, the parent would not have insurance for this type of claim. Therefore, the protective measures addressed in Glaskox are no longer applicable.

¶ 10. The Packs also direct this Court’s attention to the issue of fraud which was mentioned in Glaskox. In that case, the court stated, “The most persuasive argument against abrogation of the parent-child immunity doctrine is the possibility of fraud and collusion. While a possibility, this factor does not justify denial of otherwise meritorious claims.” Glaskox, 614 So.2d at 912. In that case, the court relied on the judicial system to resolve allegations of fraud and collusion. Even considering the judicial system’s role in handling fraudulent lawsuits, this Court is hesitant to adopt a rule which extends Glaskox further than our supreme court decided to by allowing a child to sue his parent in situations which do not involve the parent’s negligent operation of a motor vehicle.

¶ 11. The Packs cite a number of cases from other jurisdictions where the courts have completely abrogated the doctrine of parental immunity or have limited its application in cases where the parent was covered by liability insurance. While these decisions are persuasive, they hold no precedent for this Court. Following the doctrine of stare decisis, we decline the invitation to extend the holding of Glaskox to allow a minor child to sue his parent for negligence not involving the operation of a motor vehicle.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: CHANDLER, J.,

text:
    MISSISSIPPI MANUFACTURED HOUSING ASSOCIATION, Appellant, v. BOARD OF SUPERVISORS OF TATE COUNTY, Mississippi, Appellee.
    No. 2002-CA-01613-COA.
    Court of Appeals of Mississippi.
    Feb. 17, 2004.
    Rehearing Denied May 4, 2004.
    Certiorari Denied July 29, 2004.

      Powell G. Ogletree, Jason Douglas Watkins, Jackson, attorneys for appellant.
    John Thomas Lamar, Senatobia, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. The Mississippi Manufactured Housing Association (MMHA) appeals from the Tate County Circuit Court’s affirmance of the amendment of a zoning ordinance, asserting that ordinance is arbitrary and capricious and therefore violates its rights to due process as secured under the Fourteenth Amendment to the United States Constitution. Finding that MMHA failed to show that the ordinance is not substantially related to a legitimate government purpose, we affirm.

STATEMENT OF THE CASE

¶ 2. In September of 2000, Tate County began preparing to revise its county comprehensive zoning plan that had been adopted in 1972. The Allen and Hoshall firm was employed by Tate County to assist in the revision of the comprehensive zoning plan. On June 27, 2001, the planning commission held a public hearing, at which Charlie Goforth, a representative of Allen and Hoshall, discussed with citizens of Tate County the increased growth in the western and northern areas of the county. This growth was caused by people, who were working in the developing commercial areas of Tunica and DeSoto Counties, as well as Memphis, Tennessee, choosing to reside in Tate County. At the public hearing, Goforth presented an amended comprehensive zoning plan to accommodate this growth while preserving Tate County’s tax base and property values. On September 14, 2001, the county’s board of supervisors (the board) held a public hearing, after which the board adopted the revised comprehensive zoning plan as a county ordinance.

¶ 3. The 1972 ordinance established three residential districts: R-l (single family), R-2 (single family) and R-3 (mul-ti-family). Manufactured homes were prohibited in R-l and R-2, but allowed in R-3 “fu]pon written approval of the Planning Commission.” The 1972 ordinance also allowed manufactured housing in A-l (agricultural) districts as “single family residences including mobile homes.” Go-forth’s presentations indicated that as Tate County grew under the 1972 ordinance, various mobile home and manufactured housing communities became established in R-3 districts, after approval of the planning commission, and people living in more agricultural areas sometimes lived in manufactured housing as their primary residence, or even placed manufactured housing on their property for second residences.

¶ 4. The amended ordinance set forth five, rather than the previous three, residential districts: R-R (single family rural population density), R-l (single family low population density), R-2 (single family medium population density), R-3 (multiple family medium population density), and RM (low population density manufactured and modular homes, including single family). Goforth’s presentations indicated that the R-M districts were drawn to encompass all existing mobile home or manufactured housing communities. The amended ordinance additionally set forth an AG district (agricultural) on which manufactured housing was permitted in very low population density areas. The amended ordinance also “grand fathered in” non-conforming uses, whereby if a property owner had a manufactured housing unit on his property, and the unit was destroyed, he could replace the unit with one of equal or greater value, so long as it met current federal construction regulations governing manufactured housing.

¶ 5. No issue was raised as to notice and opportunity to be heard. MMHA’s counsel was given opportunity to be heard in both hearings, and at both meetings, MMHA’s counsel asserted that the proposed revision of the comprehensive zoning plan illegally restricted manufactured housing. Neither is there any issue raised asserting that Tate County failed to meet any technical requirement of adopting the zoning ordinance.

¶ 6. MMHA sought judicial review in the Circuit Court of Tate County asserting that the adoption of the comprehensive zoning plan was arbitrary and capricious, and a violation of its rights to due process secured under the Fourteenth Amendment to the United States Constitution.

¶ 7. In addition to the issues presented by MMHA in the circuit court, the board brought a motion to dismiss for lack of standing. However, prior to oral arguments before the circuit court, the board withdrew the motion upon being advised by counsel opposite of a decision by the supreme court. That case, Tallahatchie Valley Electric Power Association v. Mississippi Propane Gas Association, Inc., 812 So.2d 912 (Miss.2002), involved a nonprofit association of propane gas retailers’ challenge to an electric power association’s acquisition of a propane gas retailer. The cause of action in that case could fairly be termed an ultra vires challenge, in which it was asserted that the electric power association exceeded the scope of its enabling legislation and corporate charter by venturing from the delivery of electrical power and into the delivery of propane. Id. at (¶¶ 33-34). The supreme court found that the non-profit association had standing not because it had a colorable claim in the ultra vires act of the electrical association, but rather because one of its members was also a member of a subsidiary corporation formed by the electric power association, and therefore the nonpfofit association had standing to assert the claim of one of its members. Id. at (¶ 34).

¶ 8. In this case, there was no showing that MMHA, nor any of its members, owned any land in Tate County. There was no showing that any MMHA, nor any of its members, had been denied an opportunity to develop a manufactured housing community. There was no showing that MMHA, nor any of its members, have suffered any loss of sale of manufactured housing because of the amended zoning ordinance. Therefore, it could be argued that Tallahatchie Valley, 812 So.2d at 912, is inapplicable to this case. Nevertheless, Mississippi has taken a liberal view in finding parties have standing to assert issues.

This Court has explained that while federal courts adhere to a stringent definition of standing, limited by Art. 3, § 2 of the United States Constitution to a review of actual cases and controversies, the Mississippi Constitution contains no such restrictive language. Therefore, this Court has been “more permissive in granting standing to parties who seek review of governmental actions.” In Mississippi, parties have standing to sue “when they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise provided by law.”

State v. Quitman County, 807 So.2d 401(¶ 11) (Miss.2001). See also Burgess v. City of Gulfport, 814 So.2d 149, 152-53 (Miss.2002). Consequently, even if this issue were in controversy, it is likely that MMHA would be found to have standing. However, the unique position of MMHA in this action does have some practical consequences for the merits in that MMHA presents a record containing little other than the pleadings and zoning ordinance and documents pertaining to its creation. No property owner appeared before the board to argue he was aggrieved by the board’s decision, or that the board’s decision was contrary to law. Rather, all the record contains that indicates the amendment of the zoning ordinance was improper are conclusions of law by MMHA’s counsel absent a factual context.

¶ 9. On August 23, 2002, the circuit court dismissed the appeal. In its order, the circuit court found that the board “received information along with the public as to the growth in population and housing, housing needs, health concerns, increased need for schools and the need for water and fire protection, all of which the Board claims it considered prior to the adoption of the plan.” The circuit court further found that the comprehensive zoning plan was adopted in accordance with Mississippi statutes, which were enacted pursuant to “a valid reason for local governing authorities to regulate and zone areas for the use of manufactured movable homes,” and that Tate County’s revision of it’s comprehensive zoning plan allowed manufacture housing to be placed in 86.4% of the land located within the county.

DISCUSSION

¶ 10. MMHA raises multiple issues, which we recite verbatim:

A. The board (of supervisors) has not demonstrated a change or mistake to justify its re-zoning of manufactured homes.
B. The board (of supervisors) was arbitrary and capricious in adopting the new zoning ordinance.
1. The board (of supervisors’s) express purpose — to prevent the proliferation of manufactured housing — is not a legitimate purpose.
2. The method of construction is not a legitimate purpose or concern.
3. Safety is not a legitimate purpose for the board’s re-zoning.
4. A residence is a residence: distinguishing between manufactured housing and other forms or hosing is not an issue of use, and therefore classification by use is not a legitimate purpose for zoning manufactured housing.
5. While density is á legitimate zoning purpose, restrictions on manufactured housing are not reasonably related to the prevention of overcrowding.
6. Restrictions on manufactured housing are not reasonably related to legitimate concerns about aesthetics or property values.

C.The circuit court committed an error of law when it misinterpreted Mississippi Code Annotated Section 17-1-39 (Rev. 2000).

STANDARD OF REVIEW

¶ 11. The standard of review in zoning matters is well settled.

All presumptions must be indulged in favor of the validity of a zoning ordinance if it is within the legislative power of the city. Such an ordinance is presumed to be reasonable and for the public good. The presumption of reasonableness must be applied to the facts of the particular case, and it applies to rezoning as well as to the original zoning regulation, but not with the same weight, the presumption being that the zones are well planned and arranged to be more or less permanent, subject to change only to meet a genuine change in conditions.

Bd. of Aldermen, City of Clinton v. Conerly, 509 So.2d 877, 883 (Miss.1987) (quoting W.L. Holcomb v. City of Clarksdale, 217 Miss. 892, 900, 65 So.2d 281, 284 (1953)).

A. REVISION OF COMPREHENSIVE ZONING PLAN

¶ 12. MMHA frames this issue as whether a re-zoning of a particular piece of property is justified. Such a case is viewed under the “change or mistake rule,” requiring that “clear and convincing evidence must show either there was a mistake in the original zoning, or the character of the neighborhood has changed.” Holcomb, 217 Miss. at 899-900, 65 So.2d at 284; Conerly, 509 So.2d at 883.

¶ 13. However, MMHA additionally asserts that a political entity is powerless to amend its entire zoning ordinance, based upon a subsequent comprehensive zoning plan, to adapt to changes in growth. MMHA states in it’s brief, “[ajrguably the lower court referred to a change or mistake in Tate County’s original zoning [ordinance] by noting the county’s need to adjust to growth. Adjusting to growth, however is no change within the meaning of the change or mistake rule.” This is an incorrect statement of law.

¶ 14. The supreme court has expressly found a political entity’s need to adjust to growth, in and of itself, “requires ” a comprehensive plan and zoning ordinance be reexamined. Blacklidge v. City of Gulfport, 223 So.2d 530, 533 (Miss.1969) (emphasis added).

It is inevitable that the antiquated, traditional and affluent residential areas and estates of the past must give way to modern, progressive, gadget-equipped buildings of the future. The quiet life of yesterday is being swept aside and swamped by a tide of phenomenal, sudden growth. Where yesterday a fisherman pulled his little boat out on a sandy beach, today 16,000 boxes of bananas are being unloaded each hour from ocean-going ships. The quiet life of yesterday is shattered by the blating and groaning traffic piercing the veil of peaceful tranquility. There is no turning back, and those who would be in quiet serenity will eventually retreat from the battle and fatigue of modern progress. Change is inevitable. Those who guide the destiny of urban development must meet the challenge of a new era. They must stay abreast of modern times, and the hustle and bustle of this modern age. It is not only legally permissible for the municipal authorities to reexamine the zoning ordinances of their city as to necessary changes and new classifications essential to the welfare of the city, but it is their duty to do so where there is substantial evidence shown before the municipal authorities on which to base their determination. The court will not substitute its judgment for that of the municipal authorities.

Id. 533-34.

¶ 15. The supreme court has also approved “contingent re-zoning,” where growth around a geographical area threatened to alter the use of the land by present landowners. Old Canton Hills Homeowners Ass’n v. Mayor and City Council of the City of Jackson, 749 So.2d 54(¶ 14) (Miss.1999). In that case, a geographical area was annexed and then re-zoned, in order to prevent development that would have been allowed under the prior zoning regulation, but which would have damaged the overall character of the annexed area. Id. at (¶ 15).

¶ 16. MMHA asserts the “change or mistake” rule out of context. Typically, the “change or mistake rule” is applied when landowners object to a political entity’s decision to re-zone, or not re-zone, individual pieces of property they own. For example, in Fondren North Renaissance v. Mayor and City Council of City of Jackson, 749 So.2d 974 (Miss.1999), the central issue was whether the character of an individual neighborhood had changed to the extent that re-zoning from individual residences to multi-residential was warranted, and the homeowners in the neighborhood objected to the City’s action, while those wishing to utilize the re-zoned property supported the City’s action. Id. at (¶ 6). The contentions were between two landowners, each urging the City to approve their valid, but apparently incompatible, land uses. Id. at (¶ 18). See also Bd. of Aldermen, City of Clinton v. Conerly, 509 So.2d 877, 882 (Miss.1987) (in which property owners of single family residence objected to re-zoning in their neighborhood to allow for construction of duplex townhouses). Conversely, in the present case, the revision of the comprehensive plan and the amendment of the zoning ordinance did not alter any present use of land within Tate County. Rather, Goforth specifically stated in both hearings that the amended ordinance “grand fathered in” any existing, non-conforming presence of manufactured housing, so that if a landowner’s manufactured home was destroyed, he could replace it with a unit of equal or greater value without having to request a variance. Additionally, Goforth stated that the R-M (manufactured housing residential) districts were drawn to explicitly include any existing manufactured housing community in the county. Lastly, Goforth noted that the AG (agricultural) districts provided that property owners in agricultural, low population density areas could continue their practice of putting manufactured housing on their property for the use of their children or other relatives. Therefore, this case does not present any landowner asserting that the board amendment of its zoning ordinance deprives him of the use of his property.

¶ 17. The irony of MMHA’s legal position is that it is literally true that Tate County did not show a specific change in the character of any area of the county; however, this is only true because there is no showing that the amendment resulted in any property owner having the current use of his property altered. The amended zoning ordinance preserved, all current property uses. MMHA asserts in its rebuttal brief that there is no exception to the change or mistake rule “every twenty or thirty years when the board adopts a new comprehensive plan.” Arguably, this could be a valid issue if the amended zoning ordinance precluded a property owner from using his property in previously accepted property use or operated to alter the character of a community. However, a “zoning ordinance must be construed as a whole, and it may not be dissected and considered as a multitude of ordinances having no relation to the general scheme of zoning.” Holcomb, 217 Miss. at 900, 65 So.2d at 284 (quoting 62 C.J.S. Municipal Corporations § 288(2) (1949)). Additionally, appellate scope of review is limited in zoning matters. MMHA urges this Court to reject the appellate standard. However, the case law is well settled that “[a] decision by a local governing board is presumed valid, and the burden is upon the person seeking to set it aside to show that it was arbitrary, capricious and unreasonable.” Fondren North Renaissance, 749 So.2d 974(¶ 18) (quoting Bd. of Aldermen, 509 So.2d at 885). In this case, the zoning ordinance, viewed as a whole, was amended in an effort to preserve current uses while channeling growth to be economically and socially positive for Tate County’s citizens.

¶ 18. This Court finds that the record contains clear and convincing evidence supporting the circuit court’s finding that “[t]he board [of supervisors] recognized a need to update zoning and to adopt a countywide comprehensive plan that would permit planned growth of the County that would promote the health, safety, morals and general welfare of the entire County.” The circuit court did not err in affirming the boards’ adoption of the new comprehensive plan and adoption of the amended zoning ordinance.

B. WHETHER THE AMENDED ZONING ORDINANCE WAS ARBITRARY AND CAPRICIOUS

¶ 19. The supreme court addressed the express issue of due process in the operation of zoning ordinances affecting manufactured housing in Carpenter v. City of Petal, 699 So.2d 928 (Miss.1997).

“[Zjoning decisions will not be set aside unless clearly shown to be arbitrary, capricious, discriminatory, illegal or without a substantial evidentiary basis. There is a presumption of validity of a governing body’s enactment or amendment of a zoning ordinance and the burden of proof is on the party asserting its invalidity. Where the point at issue is “fairly debatable,” we will not disturb the zoning authority’s action.

Id. at (¶ 13).

¶ 20. In Carpenter, the supreme court struck down a zoning ordinance which restricted manufactured housing except in designated mobile home parks, while at the same time allowing such uses as commercial stables and kennels, poultry, livestock and small animal raising in RF (rural fringe) districts where manufactured housing was prohibited. Id. at (¶ 17).

The Board’s assertion that restriction of mobile homes and modular housing to mobile home parks is necessary to protect property values in surrounding residential areas rings hollow. Were individual mobile homes and/or other forms of manufactured housing prohibited only in R-l and R-2 residential districts, it would, at least, be fairly debatable whether the ordinance, as drafted, was necessary to meet its intended purposes. Prohibiting individual mobile home or even modular home sites in any area other than designated mobile home pai'ks, however, bears no relationship to the goal of preserving surrounding residential property values.

Id.

¶ 21. In this case, the zoning ordinance is of the type that the Carpenter court found would be “fairly debatable,” and therefore constitutionally permissible. While the zoning ordinance restricted manufactured housing from all residential districts not specified for manufactured housing, the zoning ordinance specifically allowed for manufactured housing in the county’s agricultural areas, and the ordinance did not include a per se prohibition in residential areas as well. It is at least fairly debatable that the amended zoning ordinance will protect property values of site built housing. Therefore, the zoning ordinance in question in this case is not precluded by Carpenter. Nevertheless, MMHA raises six specific assertions of substantial due process deprivations.

1. THE BOARD’S EXPRESS PURPOSE — TO PREVENT THE PROLIFERATION OF MANUFACTURED HOUSING IS NOT A LEGITIMATE PURPOSE

¶ 22. The contract between Tate County and Allen and Hoshall expressly stated the purpose was to “establish long range goals for the county. These goals sljall include: residential, commercial and industrial development, parks, open space and recreation, street or road improvement; and public schools and other community facilities.” There is no judicial finding that the “express purpose” was to prevent the proliferation of manufactured housing. However, in the public hearing before the board residents expressed concern that the proposed comprehensive plan and maps would allow for the proliferation of manufactured housing. One exchange concerning a map showing existing mobile or manufactured housing units within the county provided:

Mr. Smith: You still hadn’t answered my question, sir. Are they [manufactured housing] — are they concentrated, meaning there’s just 100 of them there? Are there just three there or — because I don’t understand why you’ve chosen arbitrarily to put trailer homes in certain areas and not in others.
Mr. Goforth: Well, I mean, right here there’s probably twenty in that one little area right there. _ There are hundreds in this area.
Mr. Smith: Well if you zone it that way there will be millions of them there.
Mr. Goforth: There will be more; yes sir.

Therefore, nothing in the record indicates that the zoning ordinance amendment was solely to prevent the proliferation of manufactured housing, nor does the record reflect that the amended zoning ordinance would halt any proliferation of manufactured housing. This issue is without merit.

2. THE METHOD OF CONSTRUCTION IS NOT A LEGITIMATE PURPOSE OR CONCERN

¶23. The Fifth Circuit Court of Appeals expressly rejected the argument advanced here that the National Manufactured Housing Construction and Safety Standards Act of 1974 (NMHCSSA), 42 U.S.C. §§ 5401-5426, has preemptive effect on local zoning ordinances. Tex. Manufactured Hous. Ass’n, Inc. v. City of Nederland, 101 F.3d 1095, 1099 (5th Cir. 1996). MMHA argues that 2000 amendments to 42 U.S.C. § 5403(d) broadened NMHCSSA’s preemptive effect on local zoning ordinances. The 2000 amendment in question provides:

Federal preemption under this subsection shall be broadly and liberally construed to ensure that disparate State or local requirements or standards do not affect the uniformity and comprehensiveness of the standards promulgated under this section nor the Federal superintendence of the manufactured housing industry as established by this chapter. Subject to section 5404 of this title, there is reserved to each State the right to establish standards for the stabilizing and support systems of manufactured homes sited within that State, and for the foundations on which manufactured homes sited within that State are installed, and the right to enforce compliance with such standards, except that such standards shall be consistent with the purposes of this chapter and shall be consistent with the design of the manufacturer.

Pub.L. 106-569, § 604(2).

¶ 24. NMHCSSA’s preemptive effect concerns “construction” regulations. The 2000 amendments do not preclude local governments from utilizing zoning ordinances to regulate manufactured housing. Courts throughout the nation continue to hold that local zoning laws may regulate the location of manufactured housing by excluding manufactured housing from some residential classifications on the basis of their differences in construction from other types of housing. See, e.g., King v. City of Bainbridge, 276 Ga. 484, 577 S.E.2d 772, 773 (2003); Landon Holdings, Inc. v. Grattan Tp., 257 Mich.App. 154, 667 N.W.2d 93, 106 (2003); McCollum v. City of Berea, 53 S.W.3d 106, 109 (Ky.Ct.App. 2001). There is no merit to this assignment of error.

3.SAFETY IS NOT A LEGITIMATE PURPOSE FOR THE BOARD’S RE-ZONING

¶ 25. In this assignment of error, MMHA argues that Mississippi’s adoption of the uniform standards code for factory manufactured moveable homes, precludes zoning requirements from considering safety as an issue. Nothing in the record shows the board considered manufactured housing to be unsafe, or that safety was a consideration in amending the zoning ordinance. To the extent that this is asserted as an issue, it is without merit.

4.DISTINGUISHING BETWEEN MANUFACTURED HOUSING AND OTHER FORMS OF HOUSING IS NOT AN ISSUE OF USE, AND THEREFORE IS NOT A LEGITIMATE PURPOSE FOR ZONING MANUFACTURED HOUSING

¶ 26. No legal authority is cited for this proposition. As such, the issue could be viewed as abandoned. Rigby v. State, 826 So.2d 694, 707 (¶44) (Miss.2002). Moreover, as noted above, this argument has been rejected in other jurisdictions. See, e.g., King, 577 S.E.2d at 773; Landon Holdings, 667 N.W.2d at 106; McCollum, 53 S.W.3d at 109. In this state, the supreme court found it was “fairly debatable” whether manufactured housing could be excluded from other single residential housing construction to further the legitimate government purpose of “preserving surrounding residential property values.” City of Petal, 699 So.2d at (¶ 17). An ordinance that is found “fairly debatable” in furthering a legitimate governmental purpose, such as protecting property values, passes due process muster. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303 (1926). See also City of Petal, 699 So.2d at (¶ 13). Therefore, this issue is without merit.

5.WHILE DENSITY IS A LEGITIMATE ZONING PURPOSE, RESTRICTIONS ON MANUFACTURED HOUSING ARE NOT REASONABLY RELATED TO THE PREVENTION OF OVERCROWDING

¶ 27. No legal authority is cited for this proposition. As such, the issue could be viewed as abandoned. Rigby, 826 So.2d at (¶ 44). Nevertheless, the evidence in the record does tend to show that Tate County’s amended zoning ordinance requires manufactured housing to be placed on larger residential lots than other forms of construction, such as site built. Manufactured housing on “residential” lots was required to have a lot of one acre, while residential lots for site built housing were set at 15,000 and 12,000 square feet. It appears the site built lots were originally set to be much larger, 43,500 and 40,000 square feet, but for some reason not shown in the record, the final amended zoning ordinance lessened the area for site built, while making no change in manufactured housing lot size requirements.

¶ 28. “Decisions of municipal authorities in zoning decisions are presumed to be valid legislative decisions.” Red Roof Inns, Inc. v. City of Ridgeland, 797 So.2d 898(¶ 6) (Miss.2001). In this case, MMHA presented no testimony in the public hearings as to why or how the differences in density requirements precluded citizens being able to purchase manufactured housing. Rather, the scant evidence that can be adduced from the public hearings was Goforth’s answer, to the criticism of increases in manufactured and mobile homes in the county, that the amended zoning ordinance would result in more growth of these homes. Moreover, Goforth also stated that other adjacent counties, which were fueling Tate County’s population growth, had even stricter restrictions on manufactured housing by requiring even greater acreage for manufactured housing, and MMHA conceded in its briefs that the amended zoning ordinance at issue in this case actually reduced the acreage requirements that the zoning ordinance required prior to its amendment. However, the most dispositive fact in the record is that MMHA admitted a manufactured home will cost less per square foot than a site built home. It is reasonable that the board wanted to protect the values of site built homes by requiring manufactured homes to be placed a reasonable distance from the site built homes. See, e.g., Northfield Dev. Co., Inc. v. City of Burlington, 136 N.C.App. 272, 523 S.E. 2nd 743 (¶ 13) (2000) (holding a zoning regulation mandating differing density requirements for manufactured housing and on site housing neither constituted a per se prohibition nor infringed upon due process by making an arbitrary or capricious distinction). While there could be an issue that the amended zoning ordinance might preclude a developer from building a subdivision consisting solely of manufactured housing on modest, residential lots, there is no showing in the record that any such development is contemplated. Moreover, assuming some such showing was made, there is no showing that the zoning ordinance could not provide for such a use through a variance, which was the means that Tate County used under the previous zoning ordinance to create the mobile home or manufactured housing communities that were grandfathered into the amended zoning ordinance. Therefore, we find that the record does not present facts to overcome the presumption of validity and to show that the board acted arbitrarily or capriciously in adopting density and lot size requirements in the amended zoning ordinance. There is no merit to this assignment of error.

6. RESTRICTIONS ON MANUFACTURED HOUSING ARE NOT REASONABLY RELATED TO AESTHETICS OR PROPERTY VALUES

AND

C. THE CIRCUIT COURT COMMITTED AN ERROR OF LAW WHEN IT MISINTERPRETED MISSISSIPPI CODE ANNOTATED SECTION 17-1-39 (REV.1995)

¶ 29. The central issues of this case were whether Tate County complied with Mississippi Code Annotated Section 17-1-39 (Rev.1995), and what additional restrictions due process placed upon the county’s power to regulate manufactured housing. Mississippi Code Annotated Section 17-1-39 (Rev.1995) provides:

(1) For purposes of this section, the term “factory manufactured movable home” is defined as provided in Section 75-49-3, Mississippi Code of 1972.
(2) Any municipality or county of this state may adopt and enforce zoning or other land use regulations or ordinances relating to factory manufactured movable homes, including, but not limited to, regulations and ordinances which establish reasonable appearance and dimensional criteria for factory manufactured movable homes, provided that such regulations and ordinances do not have the effect of prohibiting factory manufactured movable homes which otherwise meet applicable building code requirements from being lawfully located in at least some part or portion of the municipality or county.

MMHA’s counsel framed the issue in the circuit court:

We’re saying that 17-1-39 is a minimum protection. It is — that is — the State Legislature has said that, you know, Tate County and every other county at the very least, you have to allow manufactured housing in some portion. But even with that, you still have the additional constitutional protections in all the other areas where they still have to have legitimate purpose to zone manufactured housing out of the area.

This was a correct statement of the law. The statute, by its plain language prohibits per se exclusion of manufactured housing. City of Petal, 699 So.2d at (¶ 19). Additionally, as the Petal court observed, even where there is no per se prohibition, for substantive due process considerations, restrictions on manufactured homes must be tied to a governmental interest that can be said to be at least fairly debatably aimed at the comfort and general welfare of the community. Id. at (¶ 14). MMHA admits in it’s brief that manufactured housing costs less than other forms of construction. Property values and aesthetics are valid concerns for zoning ordinances, and zoning ordinances may be applied to manufactured housing to further that goal. Id. at (¶ 19).

¶ 30. The circuit court came to the central issue of this case when it questioned MMHA’s counsel on its position.

The Court: Are you saying that Tate County’s ordinance should permit ... a manufactured home to be put in any subdivision that some builder may go out in Tate County and start developing for two and three hundred thousand dollar homes, that they ought to have manufactured homes next door to it.
Mr. Watkins: Well, the first thing' — •
The Court: Are you saying it’s unconstitutional that you can’t do it, is that right?

Property values and aesthetics are valid concerns for zoning ordinances, and zoning ordinances may be applied to manufactured housing to further that goal. Id.See also King, 577 S.E.2d at 773.

¶ 31. MMHA asserts that the zoning ordinance impermissibly required manufactured housing to have a greater roof pitch than barns in agricultural areas, because such a requirement was arbitrary and capricious and will operate to prevent manufactured housing in Tate County. However, the record contains no evidentia-ry foundation that manufactured housing does not customarily conform to the required roof pitch. Moreover, Tate County has a legitimate zoning interest in having structures that serve as homes to be distinguishable from barns.

¶ 32. As one federal court observed, Local governments are empowered to respond appropriately to perceived needs relating to government functions, e.g. stability within the community and property values. The question is not whether the public perception is rational, but whether the government, in exercising its police power to enact legislation, has responded in a rational way to a perceived need for segregation of manufactured housing....
The arguments of Plaintiffs that there is nothing inherently different about manufactured housing which justifies such different treatment, and that manufactured housing is not necessarily incompatible with site-built housing, preservation of the tax base or preservation of market values of site-built homes, are arguments to be addressed to each legislative body concerned and to the citizens of these communities, rather than to the courts. Whether Plaintiffs’ arguments concerning these issues are better reasoned than public perception does not trump the democratic process; the remedy is public debate and persuasion and not judicial fiat or ukase. In the absence of invidious discrimination based upon such illicit factors as race, religion or national origin, a majoritarian preference or persuasion, however “accurate,” is a legitimate basis for local legislation.

Colo. Manufactured Hous. Ass’n v. City of Salida, Colo., 977 F.Supp. 1080, 1086-87 (D.Colo.1997). Zoning ordinances that are not discriminatory towards a discreet minority do not mandate that public attitudes, even mis-informed attitudes, change. Rather, it is the public perception itself that gives rise to a zoning ordinance making a distinction in construction to further a legitimate purpose.

If the municipal council deemed any of the reasons which have been suggested, or any other substantial reason, a sufficient reason for adopting the ordinance in question, it is not the province of the courts to take issue with the council. We have nothing to do with the question of the wisdom or good policy of municipal ordinances. If they are not satisfying to a majority of the citizens, their recourse is to the ballot-not the courts.

Village of Euclid, 272 U.S. at 893, 47 S.Ct. 114 (quoting State v. City of New Orleans, 154 La. 271, 283, 97 So. 440, 444 (1923)).

¶ 33. The record in this case fails to show how any homeowner or MMHA member suffered injury from the amended zoning ordinance. Moreover, by MMHA’s own admission, the previous zoning ordinance encompassed greater disparate requirements for lot size than the amended ordinance, and under the previous ordinance any attempt by a developer to build a subdivision of manufactured housing required a variance, and that appears unchanged by the amendment of the ordinance. MMHA is actually benefitted by the amendment to the ordinance which MMHA never challenged prior to the amendment. The presumption that a political entity exercises its zoning power to further a legitimate purpose is not overcome. The record shows that the board adopted the amendment in reasonable response to the needs of the citizens of Tate County, with input from those citizens and any interested party, and with the express acknowledgment that the amendment would allow for additional manufactured housing within the county. Judicial review will not overturn such a decision, as it properly belongs to the elected officials of Tate County. There is no merit to this assertion of error.

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

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

      . MMHA asserted similar standing in an earlier unpublished opinion of this Court. The Mayor and Bd. of Alderman of the City of Pearl v. Miss. Manufactured Hous. Ass’n, Inc, 95-CC-00606 COA (Miss.Ct.App. Sept. 23, 1997).

      . The amended zoning ordinance specifies: “In the case of manufactured housing, but specifically excluding mobile homes, any home destroyed by a fire, explosion or natural disaster may be replaced provided that it was a lawful use at the time of the adoption of this ordinance.”

      . This factual situation, where a landowner in an agricultural area wished to put a manufactured housing unit on his property for his son to reside in, and a zoning ordinance precluded that use, even though a myriad of other uses having arguably detrimental effects on property values were allowed, gave rise to the seminal case in Mississippi concerning manufactured housing, Carpenter v. City of Petal, 699 So.2d 928 (Miss. 1997). As discussed in the next section, Tate County's amended ordinance was tailored to avoid that factual scenario.

      . MMHA filed an amicus brief in this case before the Fifth Circuit.

      . MMHA cites to Cannon v. Coweta County, 260 Ga. 56, 389 S.E.2d 329, 332 (1990) to support its contention that zoning ordinances may not distinguish manufactured housing from site built housing on the basis of aesthetics or cost. Cannon was overruled by King, 577 S.E.2d at 775.