author: DIAZ, JUSTICE,

text:
    Thomas Edward SMITH v. STATE of Mississippi.
    No. 2001-KA-01235-SCT.
    Supreme Court of Mississippi.
    Feb. 20, 2003.

      David L. Walker, Batesville, for appellant.
    Office of the Attorney General by Scott Stuart, for appellee.
    Before PITTMAN, C.J., COBB and DIAZ, JJ.
   DIAZ, JUSTICE,

for the Court.

¶ 1. In July 2000, Trooper Dennis Darby of the Mississippi Highway Safety Patrol stopped a car with no license plate driven by Thomas Edward Smith (Smith). The car was also occupied by Davlyne Parker (Parker), riding in the passenger seat. Trooper Darby noticed a thirty-two ounce bottle of beer in the floor of the car and also noticed the passenger moving around suspiciously.

¶ 2. Smith and Parker allowed Trooper Darby to look around inside the car. While looking in the car, Trooper Darby noticed a cloth covering a bulge on the passenger side seat. Underneath the cloth, he found a plastic bag containing a whitish rock. Trooper Darby then arrested Smith and Parker and sent the rock to the Mississippi Crime Laboratory.

¶ 3. Smith was indicted by the Grand Jury of Panola County on two counts, Count I for conspiracy to possess cocaine and Count II for possession of cocaine with intent to sell. Smith was tried and convicted by a jury on both counts. The trial court sentenced Smith to serve a term of five years for Count I and fifteen years for Count II, with the sentences to run concurrently. Smith was also ordered to pay a fine of $5,000.00, a Mississippi Crime Laboratory fee of $125.00, $100.00 to the Mississippi Crime Victims’ Fund and court costs.

¶4. Smith now appeals his conviction and sentence raising the following issues:

I. WHETHER THE TRIAL COURT ERRED IN OVERRULING SMITH’S OBJECTION TO TESTIMONY OF PARKER AS TO SMITH’S OTHER CRIMES WITHOUT SPECIFICITY.
II. WHETHER THE TRIAL COURT ERRED IN DENYING SMITH’S MOTION FOR A JNOV.
III. WHETHER THE TRIAL COURT ERRED IN DENYING SMITH’S MOTION FOR A NEW TRIAL.
IV. WHETHER THE TRIAL COURT ERRED IN OVERRULING OBJECTION TO OFFER EVIDENCE OF A DEAL OFFERED BY SMITH.
V. WHETHER THE TRIAL COURT ERRED IN GRANTING A CONSTRUCTIVE POSSESSION OF COCAINE INSTRUCTION SUBMITTED BY THE STATE.
VI. WHETHER THE TRIAL COURT ERRED IN DENYING SMITH’S REQUEST FOR A LESSER-INCLUDED OFFENSE INSTRUCTION.
VII. WHETHER THE TRIAL COURT ERRED IN GIVING JURY INSTRUCTION C-13.
VIII. WHETHER THE TRIAL COURT ERRED IN REFUSING TO PERMIT THE JURY TO VIEW SMITH’S TRUCK.
IX. WHETHER SMITH’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO TAKE PHOTOGRAPHS OF SMITH’S TRUCK OR TO MOVE THE TRIAL COURT FOR THE JURY TO INSPECT IT PRIOR TO RESTING SMITH’S CASE.
X. WHETHER THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION C-14.
XI.WHETHER THE TRIAL COURT ERRED IN DENYING SMITH’S MOTION FOR A MISTRIAL CONCERNING TESTIMONY OF HIS CONVERSATIONS WITH MR. CHRESTMAN.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN OVERRULING SMITH’S OBJECTION TO TESTIMONY OF PARKER AS TO SMITH’S OTHER CRIMES WITHOUT SPECIFICITY.

¶ 5. Smith argues that the trial court erred when it allowed Parker to testify that he had known Smith for a long time, that Smith regularly dealt drugs, and that Parker knew he would sell the drugs found in the truck. Smith specifically argues that testimony about prior drug sales was not specific enough or the alleged sales were not recent enough to be admitted as evidence.

¶ 6. The standard of review for admission of evidence is abuse of discretion. Farris v. State, 764 So.2d 411, 428 (Miss.2000). Smith made a motion in limine to exclude this evidence. The trial court found that the evidence was admissible under Mississippi case law, M.R.E. 404(b), and conducted a M.R.E. 403 balancing test. The trial court also gave the jury a limiting instruction regarding the use of this evidence of other drug sales.

117. Evidence of prior drug sales is admissible under M.R.E. 404(b) to prove intent to distribute if it passes the M.R.E. 403 balancing test and is accompanied by a limiting instruction. Swington v. State, 742 So.2d 1106, 1111 (Miss.1999); Holland v. State, 656 So.2d 1192, 1196 (Miss.1995).

¶ 8. A case may be reversed based on the admission of evidence if the admission results “in prejudice and harm” or adversely affects a substantial right of a party. Farris, 764 So.2d at 428; Hansen v. State, 592 So.2d 114, 132 (Miss.1991).

¶ 9. Smith concedes that the trial court’s admission of Parker’s testimony is supported by the law as it stands, but urges this Court to modify the law by limiting proof of prior sales to proof that can be specifically identified and in recent time. State ex rel. Moore v. Molpus, 578 So.2d 624, 635 (Miss.1991), requires this Court to find that the law as it stands is pernicious, impractical, or mischievous in its effect and resulted in a detriment to the public in order to modify the law. This Court finds that Smith has produced no evidence to meet this test and affirms the trial court as to this issue.

II. WHETHER THE TRIAL COURT ERRED IN DENYING SMITH’S MOTION FOR A JNOY.

¶ 10. Smith argues that the State did not present sufficient evidence to prove Smith guilty and, as a result, the trial court erred in denying Smith’s motion for JNOY.

¶ 11. Sufficiency questions are raised in motions for directed verdict and also in JNOV motions. McClain v. State, 625 So.2d 774, 778 (Miss.1993). In reviewing such motions, the trial court considers all of the credible evidence consistent with the defendant’s guilt, giving the prosecution the benefit of all favorable inferences that may be reasonable drawn from this evidence. Id. This Court is authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence is such that reasonable and fair-minded jurors could not find the accused guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987).

¶ 12. We must give the prosecution the benefit of all “favorable inferences that may be reasonably drawn from the evidence” when deciding if enough evidence was presented to support the guilty verdict in this case. The testimony by Parker supports this Court’s conclusion that the verdict was reasonable. Parker testified that Smith came to his house and asked Parker to accompany him somewhere. They drove in Smith’s truck to Murphy Ridge Road, and Smith went into a house. After Smith returned to the truck, they started back to Batesville. Parker told Smith that he saw a highway patrolman, and Smith made a left turn. The patrolman turned on his lights, and Smith gave the cocaine to Parker and told him to run with it. Instead, Parker put it under a cloth under his seat. Smith drove to the railroad tracks so that Parker could cross and not be easily followed by Trooper Darby. Parker also testified that he did not run away with the cocaine because it was not his. These facts, along with others, were all heard and weighed by the jury. In evaluating the evidence presented, it is quite reasonable to understand how a jury could come to the conclusion it did in this case, and this Court sees no reason presented that would compel the trial judge to act differently then he did. We therefore hold that the trial judge did not err in denying Smith’s motion for JNOY

III. WHETHER THE TRIAL COURT ERRED IN DENYING SMITH’S MOTION FOR A NEW TRIAL.

¶ 13. Smith argues that the trial court erred in denying his motion for a new trial because the evidence does not support his conviction of conspiracy.

¶ 14. “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will only reverse when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Herring v. State, 691 So.2d 948, 957 (Miss.1997). A new trial is not granted unless allowing the conviction to stand would sanction an unconscionable injustice. May v. State, 460 So.2d 778, 781 (Miss.1984).

¶ 15. We conclude that the facts discussed in the previous issue also reflect that the trial court did not err in denying Smith’s motion for new trial. There is no evidence that the circuit court abused its discretion when it did not grant a new trial. While there are cases where the facts presented in no way support the outcome and justice demands a new trial, this is clearly not one of them. The verdict was not against the overwhelming weight of the evidence, and this Court affirms the trial court as to this issue also.

IV. WHETHER THE TRIAL COURT ERRED IN OVERRULING OBJECTION TO OFFER EVIDENCE OF A DEAL OFFERED BY SMITH.

¶ 16. Smith argues that the trial court erred in admitting evidence during the State’s rebuttal that Smith gave names of people who sell drugs to Jason Chrestman, Commander of the Panola and Tate Counties Narcotics Task Force, in a possible attempt to cut a deal under M.R.E. 408.

¶ 17. The standard of review of an admission or exclusion of evidence is abuse of discretion. Stallworth v. State, 797 So.2d 905, 908 (Miss.2001). M.R.E. 408 (Compromise and offers to compromise) provides that

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

M.R.E. 408 has a more ready application to civil cases. Armstead v. State, 805 So.2d 592, 597 (Miss.App.2002).

¶ 18. At trial, Smith denied that he gave the cocaine to Parker and denied that he knew anything about cocaine. Smith also testified that he told Commander Chrestman he did not know anything about drugs and did not give Chrestman the names of drug dealers. In rebuttal and for impeachment purposes, Chrestman testified that Smith gave him the names of four people who sell drugs in the area. The trial court did not allow the State to introduce Chrestman’s report.

¶ 19. Rule 408 does not exclude evidence offered for purposes other than proving the validity of a liability of a claim or its amount. Chrestman’s testimony regarding his talks with Smith was admitted to rebut Smith’s assertion that he knew nothing about drugs. Had the testimony been offered as evidence of Smith’s guilt then it would not have been admissible. But this is not the case here. Smith made claims on the stand that the prosecution believed were false and presented this evidence to discredit him. Therefore, this Court affirms the trial court in its decision to admit Chrestman’s rebuttal testimony.

Y. WHETHER THE TRIAL COURT ERRED IN GRANTING A CONSTRUCTIVE POSSESSION OF COCAINE INSTRUCTION SUBMITTED BY THE STATE.

¶ 20. Jury Instruction S# 4 states the following:

In order to find the Defendant guilty of possession of cocaine as charged, there must be sufficient facts to warrant a finding by the jury that the Defendant was aware of the presence and character of the substance and was intentionally and consciously in possession of the substance. It need not be actual physical possession. Constructive possession may be shown by establishing that the substance was subject to the Defendant’s dominion or control.

¶21. A presumption of constructive possession arises against the owner of premises upon which contraband is found. Hamm v. State, 735 So.2d 1025, 1029 (Miss.1999); Hamburg v. State, 248 So.2d 430, 432 (Miss.1971). The State had to prove that Smith was aware of the cocaine and intentionally, but not necessarily physically, possessed it. Constructive possession may be shown by establishing dominion or control. Curry v. State, 249 So.2d 414, 416 (Miss.1971). “The owner of a vehicle is presumed to be in constructive possession.” Wall v. State, 718 So.2d 1107, 1111 (Miss.1998).

¶22. Smith argues that a constructive possession instruction was improper because, if anything, Parker’s testimony would lead the jury to believe Smith was in actual possession of the cocaine. Hicks v. State, 580 So.2d 1302, 1306 (Miss.1991). This argument is without merit. Smith is in essence asking that the court not instruct the jury about the law. The law states that actual possession is not needed, that constructive possession will do. A jury’s job is to weigh the evidence presented to it. If the facts warrant it, the jury has the right to reach the conclusion that Smith was in actual possession. Smith has no legitimate complaint that a jury instruction not be given simply because the jury might come to a conclusion that is unfavorable to him.

¶ 23. Under Hamburg, a presumption arises that the owner of the premises (in this case a truck owned and driven by Smith) is in possession of its contents. Smith owned the truck, and the cocaine was found inside the truck. This amounts to constructive possession. This Court finds that there was no error by the trial court in granting the constructive possession instruction.

VI. WHETHER THE TRIAL COURT ERRED IN DENYING SMITH’S REQUEST FOR A LESSER-INCLUDED OFFENSE INSTRUCTION.

¶ 24. Smith asserts that the trial court erred in denying his request for a lesser-included offense instruction for simple possession.

¶ 25. Jury instructions should be given only if they are applicable to the facts developed in the case being tried. Lancaster v. State, 472 So.2d 363, 365 (Miss.1985). Granting an instruction not supported by the evidence is error. Mitchell v. State, 792 So.2d 192, 218 (Miss.2001). Defendants are entitled to instructions which support their theory of the case. Murphy v. State, 566 So.2d 1201, 1206 (Miss.1990). The court may refuse an instruction which incorrectly states the law, is fairly covered elsewhere in the instructions, or is without foundation in the evidence. Ellis v. State, 790 So.2d 813, 815 (Miss.2001).

¶26. Smith’s theory of the case was that he had no knowledge that cocaine was in his truck. These facts do not support a simple possession charge because Smith is claiming that he knew nothing of the drugs, not that he only possessed them with no intent to sell. Therefore, a simple possession instruction had no foundation in the evidence presented and did not support his theory of the case. While a defendant is entitled to as many jury instructions as justice and a fair trial warrant, a jury should not be presented with options which have no factual basis and in which would only confuse the jury. This Court affirms the trial court as to this issue.

VII. WHETHER THE TRIAL COURT ERRED IN GIVING JURY INSTRUCTION C-13.

¶ 27. The trial court drafted a cautionary jury instruction on the testimony of Parker concerning Smith’s prior cocaine sales. The instruction instructed the jury that the evidence could not be considered as substantive evidence on the issue of whether Smith was guilty of the charges for which he was being tried. Smith objected to the word “substantive” as confusing.

¶28. Smith argues that an instruction that confuses the jury should not be given. Collins v. State, 691 So.2d 918, 925 (Miss.1997). If the instructions are read as a whole, and the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Id. at 922.

¶ 29. Smith does not explain in his brief how he was prejudiced by the use of the word “substantive” and does not explain how this word would confuse the jury. In light of the facts of this case, we see no reasonable possibility that this word choice, in this particular instruction, could have brought about any confusion or misunderstanding on the part of the jury. Therefore, this Court affirms the trial court as to this issue.

VIII. WHETHER THE TRIAL COURT ERRED IN REFUSING TO PERMIT THE JURY TO VIEW SMITH’S TRUCK.

¶ 30. Miss.Code Ann. § 13-5-91 (Rev. 2002) provides in part that

When, in the opinion of the court, on the trial of any cause, civil or criminal, it is proper, in order to reach the ends of justice, for the court and jury to have a view or inspection of the property which is the subject of litigation, or the place at which the offense is charged to have been committed, or the place or places at which any material fact occurred, or of any material object or thing in any way connected with the evidence in the case, the court may, at its discretion, enter an order providing for such view or inspection as is herein below directed. After such order is entered, the whole organized court, consisting of the judge, jury, clerk, sheriff, and the necessary number of deputy sheriffs, shall proceed, in a body, to such place or places, property, object or thing to be so viewed or inspected, which shall be pointed out and explained to the court and jury by the witnesses in the case, who may, at the discretion of the court, be questioned by the court and by the representative of each side at the time and place of such view or inspection, in reference to any material fact brought out by such view or inspection.

¶31. It is within the discretion of the trial court to permit the jury to view the scene of the crime. Tolbert v. State, 511 So.2d 1368, 1378 (Miss.1987). This Court will reverse a trial court’s decision not to permit the jury to view the scene of the crime if there is a clear abuse of discretion. Green v. State, 614 So.2d 926, 936 (Miss.1992).

¶ 32. Smith argues that the jury needed to see the truck in order to determine whether Smith could see the patrol officer coming with his lights on because Smith asserts that his truck does not have mirrors. Although the court did not allow the jury to view the truck, Smith could have offered, in his testimony, all of the facts about the truck. The trial judge is allowed, by law, to determine at his discretion whether the jury needs to view a particular crime scene, or in this case a vehicle, in order to reach the ends of justice. He decided against this and did so correctly.

¶ 33. We find Smith’s argument does not show that the trial court abused its discretion. Therefore, this Court affirms the trial court’s decision not to permit the jury to view Smith’s truck.

IX. WHETHER SMITH’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO TAKE PHOTOGRAPHS OF SMITH’S TRUCK OR TO MOVE THE TRIAL COURT FOR THE JURY TO INSPECT IT PRIOR TO RESTING SMITH’S CASE.

¶34. Smith claims that he was denied effective assistance of counsel because his attorney did not take photographs of his truck to show that there were no rearview mirrors, proving that Parker lied when he testified that there were mirrors and that he could not see Trooper Darby behind him.

The standard for determining if a defendant received effective assistance of counsel is well settled. “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 defendant must demonstrate that his counsel’s performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. “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 v. Washington, 466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674). The focus of the inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Id. Judicial scrutiny of counsel’s performance must be highly deferential, (citation omitted) ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id. at 477 (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674). Defense counsel is presumed competent. Washington v. State, 620 So.2d 966 (Miss.1993)

Burns v. State, 813 So.2d 668, 673 (Miss.2002).

¶ 35. As mentioned in the previous issue, Smith could just have easily testified about the mirrors on the truck to try and prove that Parker lied during his testimony. Pictures are not required and do not assure a different outcome. Given the weight of the other facts presented, it would be far reaching to assume that the outcome of this case would have been different if defense counsel had presented pictures of the truck. As the State correctly argues, Smith has not shown that the outcome of his trial would have been different had his attorney taken pictures of his truck; and therefore, this did not prejudice Smith’s case. This issue is without merit.

X. WHETHER THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION C-14.

¶ 36. The trial court also drafted an instruction instructing the jury that the evidence of Smith’s knowledge of who dealt drugs in his area was to be used only for impeachment purposes and the evaluation of Smith’s testimony, and that the jury could not use the evidence to determine Smith’s guilt in the charges at hand.

¶ 37. “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Coleman v. State, 697 So.2d 777, 782 (Miss.1997) (quoting Collins, 691 So.2d at 922).

¶ 38. Smith incorporates his argument from Issue VII. This cautionary instruction was presented to the jury for the benefit of Smith. It is to keep the jury from considering facts it should not be considering when trying to decide whether Smith is guilty of the crimes he is charged with. The instructions are in no way misleading, confusing, or prejudicial. Smith has not shown that the instruction is an incorrect statement of the law or unsupported by the evidence, and this Court affirms the trial court’s granting of the jury instruction.

XI. WHETHER THE TRIAL COURT ERRED IN DENYING SMITH’S MOTION FOR A MISTRIAL CONCERNING TESTIMONY OF HIS CONVERSATIONS WITH MR. CHRESTMAN.

¶ 39. At trial, Smith objected to Commander Ghrestman’s testimony that Smith told Chrestman he could buy certain drugs from certain individuals. Smith now argues that the testimony should not have been admitted because Smith made those statements to Chrestman before he was read his Miranda rights.

¶40. It is well settled that otherwise voluntary statements, even when taken in violation of a defendant’s Fifth or Sixth Amendment rights, may be used to impeach the defendant if he elects to take the witness stand. Bogard v. State, 624 So.2d 1313, 1319 (Miss.1993). The State may use statements made in violation of Miranda to impeach the defendant’s trial testimony without first establishing that the statement or confession was freely and voluntarily given. Id. (citing Booker v. State, 326 So.2d 791, 793 (Miss.1976)).

¶ 41. Applying this case law, it would not matter if the statements used against Smith were made voluntarily before he was read his Miranda rights or if they were statements made after he should have been read his Miranda rights. The evidence at hand was presented for nothing more than to impeach the statements made by Smith at trial. Smith testified that he knew nothing about drugs. The trial court properly admitted evidence that Smith did know about drugs to impeach Smith’s testimony. This Court affirms the trial court as to this issue.

CONCLUSION

¶ 42. Smith has raised many alleged of errors before this Court. He tries to find fault with the court system and the way the trial was conducted; he even attacks his own trial counsel, claiming he was inadequately represented. This Court finds that the trial court has committed no reversible error in the case and that counsel for the defendant represented his client adequately. We conclude that none of the issues presented merit a reversal of this case and therefore affirm the trial court’s judgment.

¶ 43. COUNT I: CONVICTION OF CONSPIRACY TO POSSESS COCAINE AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS TOGETHER WITH PAYMENT OF A FINE IN THE AMOUNT OF $5,000.00 AND COURT COSTS, AFFIRMED.

COUNT II: CONVICTION OF POSSESSION OF COCAINE WITH THE INTENT TO SELL OR DISTRIBUTE AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS TOGETHER WITH PAYMENT OF A FINE IN THE AMOUNT OF $5,000.00, ALL FEES AND COURT COSTS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONCURRENTLY WITH THE SENTENCE IN COUNT I.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, EASLEY AND GRAVES, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. CARLSON, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: WALLER, J., McRAE, P.J.,

license: Public Domain

text:
    T.T.W. a/k/a B.W. v. C.C. and J.C.
    No. 2001-CA-01404-SCT.
    Supreme Court of Mississippi.
    March 6, 2003.

      Richard R. Vaughan, Gautier, attorney for appellant.
    Damon Scott Gibson, Gulfport, attorney for appellees.
    Before PITTMAN, C.J., WALLER and CARLSON, JJ.
   WALLER, J.,

for the Court.

¶ 1. This case involves a minor girl who is the natural daughter of two unmarried young people. Because of the natural parents’ drug (marijuana and cocaine) and alcohol use, the child went through withdrawal after her birth. The Department of Human Services placed the child in the custody of her maternal grandparents almost immediately after her discharge from the hospital. The natural parents relinquished their parental rights and consented to the maternal grandparents’ adoption of the child.

¶ 2. The child’s paternal grandmother, who is of Vietnamese descent, filed a petition for grandparents’ visitation. After a hearing, the chancellor denied the petition. We vacate and remand this case to the chancellor because she failed to make findings of fact for each of the Martin factors.

FACTS

¶ 3. It is obvious from the testimony at the hearing that the paternal grandmother loves the child. She specially made the child’s favorite Vietnamese dessert and sent Vietnamese food home with the child. She was with the child constantly when she had visitation. She bought the child clothes and shoes and was teaching the child how to speak Vietnamese. She kept regular visitation with the child until the maternal grandparents/adoptive parents (“parents”) refused to let the child go with the paternal grandmother.

¶ 4. The parents claimed, and the paternal grandmother admitted, that during visitations with the child, the paternal grandmother examined the child’s genital area because she was suspicious that the child had been the victim of abuse. Furthermore, the man with whom the paternal grandmother lived had a son who had been diagnosed with sexual deviancy pertaining to child abuse. However, the parents requested the D.H.S. to conduct an investigation and the child undement a physical examination, both of which turned up no evidence of sexual abuse.

¶ 5. The paternal grandmother also admitted that she had taken the child to the dockyard where the paternal grandmother’s shrimp boat was moored and that she had taken her out of town, even though the parents did not wish for her to do so.

DISCUSSION

¶ 6. We will not disturb the factual findings of a chancellor when supported by substantial evidence unless we can say with reasonable certainty that the chancellor abused her discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard. Morgan v. West, 812 So.2d 987, 990 (Miss.2002); Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996). For questions of law, we employ a de novo standard of review and will only reverse for an erroneous interpretation or application of the law. Morgan, 812 So.2d at 990; Bank of Miss. v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992); Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990).

¶ 7. “Natural grandparents have no common-law ‘right’ of visitation with their grandchildren. Such right, if any, must come from a legislative enactment.” In re Adoption of a Minor, 558 So.2d 854, 856 (Miss.1990) (citing Olson v. Flinn, 484 So.2d 1015, 1017 (Miss.1986)). In 1983 the Mississippi Legislature enacted the grandparents’ visitation rights statutes, Miss. Code Ann. §§ 93-16-1 to -7 (Rev.1994). Miss.Code Ann. § 93-16-3 states in pertinent part:

(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:
(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and
(b) That visitation rights of the grandparent with the child would be in the best interests of the child.
(3) For purposes of subsection (3) of this section, the term “viable relationship” means a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child or the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year.

Section 93-16-7 states:

This chapter shall not apply to the granting of visitation rights to the natural grandparents of any child who has been adopted by order or decree of any court unless: (1) one (1) of the legal parents of such child is also a natural parent of such child; or (b) one (1) of the legal parents of such child was related to the child by blood or marriage prior to the adoption. This chapter shall apply to persons who become grandparents of a child by virtue of adoption.

¶ 8. The paternal grandmother and the parents are related to the child by blood prior to her adoption. Therefore, § 93-16-7 applies, and the paternal grandmother has standing to petition for visitation with the child under the grandparents’ visitation statutes. Presiding Justice McRae, in his dissent, states that, under our law, the paternal grandmother is a “stranger” to the child and that her rights were terminated when the child was adopted. This is a misstatement of our law because § 93-16-7 clearly gives the paternal grandmother standing to seek visitation. The Legislature would not have given a natural grandparent standing to seek visitation if it considered natural grandparents to be “strangers” and intended for their visitation rights to be terminated.

¶ 9. Notwithstanding the paternal grandmother’s standing to petition for visitation, a natural grandparent’s statutory right to visit her grandchild is not as comprehensive as a parent’s visitation rights. Settle v. Galloway, 682 So.2d 1032, 1035 (Miss.1996).

¶ 10. The best interests of the child must be the polestar consideration in awarding grandparent visitation. In addition to this paramount concern, we have adopted ten factors that are to be considered by a chancellor in making a determination regarding grandparent visitation: (1) The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time; (2) The suitability of the grandparents’ home with respect to the amount of supervision received by the child; (3) The age of the child; (4) The age, and physical and mental health of the grandparents; (5) The emotional ties between the grandparents and the grandchild; (6) The moral fitness of the grandparents; (7) The distance of the grandparents’ home from the child’s home; (8) Any undermining of the parent’s general discipline of the child; (9) Employment of the grandparents and the responsibilities associated with that employment; (10) The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents. Martin v. Coop, 693 So.2d 912, 916 (Miss.1997). None of these factors should receive more weight in the chancellor’s analysis than any other, and these factors are not all-inclusive. The chancellor should weigh all circumstances and factors she feels to be appropriate. Id.

WHETHER THE CHANCELLOR ABUSED HER DISCRETION AND/OR COMMITTED MANIFEST ERROR BY NOT SPECIFICALLY ADDRESSING THE MARTIN FACTORS.

¶ 11. The paternal grandmother contends that the chancellor did not properly consider the Martin factors. A chancellor’s failure to follow enumerated guidelines is manifest error when specific findings of fact corresponding to such guidelines is required. Gray v. Gray, 746 So.2d 234, 238 (Miss.1999). However, it is presumed on appeal that the chancellor has taken all factors into consideration. Voda v. Voda, 731 So.2d 1152, 1155 (Miss.1999) (citing Tanner v. Tanner, 481 So.2d 1063, 1064 (Miss.1985)).

¶ 12. We have recently reversed and remanded a case where the chancellor did not “articulate her findings regarding the Martin factors.” Morgan v. West, 812 So.2d 987, 992 (Miss.2002). We held:

We conclude that the chancellor did not speak to the best interest of [the child] and that several factors set forth in Martin were not adequately addressed. First and foremost, this Court has repeatedly held that in matters regarding child custody and visitation the best interest of the child is of paramount importance. Martin clearly sets forth this standard prior to outlining the factors to be considered in a grandparent visitation matter....

Morgan, 812 So.2d at 992. Therefore, making findings of fact under the Martin factors is an integral part of a determination of what is in the best interests of a child.

¶ 13. The chancellor made no findings about the amount of disruption that extensive visitation will have on the child’s life, the suitability of the grandparents’ home with respect to the amount of supervision received by the child, the paternal grandmother’s age and physical and mental health, the emotional ties between the paternal grandmother and the child, the paternal grandmother’s moral fitness, the distance of the grandparents’ home from the child’s home, any undermining of the parents’ general discipline of the child, the responsibilities associated with the paternal grandmother’s employment, and the paternal grandmother’s willingness to accept that the rearing of the child is the responsibility of the parents, and that the parents’ manner of child rearing is not to be interfered.

¶ 14. On remand, the chancellor might consider options other than a wholesale grant or denial of visitation. If the paternal grandmother were granted supervised visitation with the child, many of the problems (i.e., disobeying the parents’ instructions as to where the paternal grandmother could take the child and telling the child that the paternal grandmother’s son was her father) which had occurred in the past would be solved. Also, it might be in the child’s best interests to be exposed to her Vietnamese heritage. In fact, it might be harmful for the child not to have some contact with her Vietnamese heritage, particularly since close ties were established between the paternal grandmother and the child.

¶ 15. Presiding Justice McRae, in his dissent, states that the paternal grandmother had not had visitation with the child for three years. While this is true, Presiding Justice McRae fails to note that the paternal grandmother sought visitation during those three years, but the adoptive parents refused the same. Furthermore, in the two years that the paternal grandmother had visitation with the child, a viable and close relationship developed between the two. The three-year gap should not be held against the paternal grandmother.

¶ 16. Presiding Justice McRae voices legitimate concerns about the child’s possible exposure to the paternal grandmother’s sexually deviant stepson. However, there exists no proof of any abuse, attempted or otherwise, while the grandmother exercised visitation, and a limited and supervised visitation would obviate this concern.

CONCLUSION

¶ 17. We vacate and remand for specific findings of fact pertaining to the Martin factors, and direct the chancellor to specifically review whether supervised visitation would be in the best interest of the child.

¶ 18. VACATED AND REMANDED.

PITTMAN, C.J., SMITH, P.J., COBB, DIAZ, CARLSON AND GRAVES, JJ., CONCUR. EASLEY, J„ CONCURS IN RESULT ONLY. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.

McRAE, P.J.,

Dissenting:

¶ 19. I dissent to the majority’s determination that this cause should be sent back for further explanation by the chancellor using the factors established in Martin v. Coop, 693 So.2d 912 (Miss.1997). There is no explanation needed. The facts clearly show that the ex-paternal grandmother is a stranger to this child under our law.

¶ 20. The record shows that the child was adopted by her maternal grandparents (“parents”) and has lived with them since birth. Her paternal grandmother, who now seeks visitation, had voluntary-contact with her up until she was two (2) years old. The child is now five (5) years old and has not had visitation with her paternal grandmother in three (3) years.

¶ 21. At the time when visitations were permitted, the paternal grandmother’s “live in boyfriend” had a son who had been diagnosed with sexual deviance. Testimony and evidence also tended to show that there was some concern that the child may have been sexually abused. The chancellor in her rulings stated that she was “concerned by the fact that [the paternal grandmother had] allowed [the child] to have contact with a known sex offender.” When the allegations of abuse arose, the paternal grandmother contacted DHS and accused the parents of sexual abuse. Upon investigation, the parents were cleared of any wrong doing.

¶ 22. When the father relinquished his parental rights, he became a stranger to this child by law. So too has the paternal grandmother. The child has not seen or been in contact with her paternal grandmother in three years. They have no relationship on which to justify the granting of visitation. Miss.Code Ann. § 93-16-3 (Rev.1994) provides in pertinent part that:

(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:
(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with child; and
(b) That visitation rights of the grandparent with the child would be in the best interest of the child.
(3) For the purpose of subsection (2) of this section, the term “viable relationship” means a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child or the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year.

(emphasis added). The majority undermines this code section by stating that “[t]he Legislature would not have given a natural grandparent standing to seek visitation if it considered natural grandparents to be ‘strangers’ and intended for their visitation rights to be terminated.” It is the majority that misapprehends by its analysis. Just because the grandparents may have standing to seek visitation does not mean that under these circumstances the factors for granting visitation are satisfied or that it is in the best interest of the child to grant the grandmother visitation. The facts show that the grandmother has not supported the child financially and has not seen the child frequently within the last three years. There is no viable relationship between the grandmother and the child upon which to base the need for visitation. The burden was upon the grandmother to produce such evidence. Since there was no evidence presented that would support a finding for visitation under Miss.Code Ann. § 93-16-3, the chancellor was justified in denying visitation.

¶23. Additionally, it would not be in the child’s best interest to grant visitation to the grandmother. The facts clearly show that allowing visitation by the grandmother eonld be detrimental to the child’s health and well being. The grandmother continuously disregarded the legal parent’s visitation restrictions. She took the child to the shipyards despite repeated demands by the legal parents that she not take her there. She maintained a known sex offender in her home and even let the child be alone with him. Even after allegations of sexual abuse arose, she still continued to allow the sex offender to remain in her home. Visitation by the paternal grandmother would not be in the best interest of the child.

¶ 24. For these reasons, I respectfully dissent.

      . Martin v. Coop, 693 So.2d 912, 916 (Miss.1997).

      . The paternal grandmother also claims that the chancellor abused her discretion and/or committed manifest error by failing to apply a standard of reasonableness before finding that the parents were reasonable in denying the paternal grandmother visitation with the child. We find that it is unnecessary to reach this issue because the case should be vacated and remanded for further findings. However, the question of whether a person has acted reasonably is generally a question of fact, not law. See, e.g., Ford Motor Credit Co. v. Mathis, 660 So.2d 1273, 1276 (Miss.1995).