author: SOUTHWICK, P.J.,

text:
    Christopher Lee BRYANT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01299-COA.
    Court of Appeals of Mississippi.
    June 3, 2003.
    Certiorari Denied Aug. 28, 2003.

      Rex K. Jones, Hattiesburg, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

SOUTHWICK, P.J.,

for the court.

¶ 1. Christopher Lee Bryant was convicted of burglary, forcible sexual intercourse, and sexual battery by a circuit court jury. On appeal, Bryant argues that the lower court erred in denying the suppression of his confession, that the verdict was contrary to the overwhelming weight of the evidence, and that the State failed to prove the forcible sexual intercourse charge beyond a reasonable doubt. We do not agree with these assertions and affirm.

STATEMENT OF FACTS

¶ 2. On the evening of February 4, 2000, the victim L.B. completed her workout at the YMCA in Hattiesburg. As she drove home, she noticed in her rear-view mirror a vehicle with unusual headlights, one bright and one dim, speeding past other motorists. When the vehicle got directly behind her, L.B. slowed so it could pass. The vehicle similarly slowed. L.B. pulled off into a familiar neighborhood. The truck, later identified as Bryant’s, did not follow.

¶ 3. L.B. went home, ate, and began a bath. While bathing, L.B. heard the front door of her mobile home being kicked in. Bryant entered. He choked her and held her head under water. Bryant then raped L.B., blindfolded her, and forced her to perform oral sex on him. Bryant repeatedly threatened to kñl L.B. if she looked at him. Bryant then put L.B. into a closet and left.

¶ 4. L.B. hastily dressed and went to a neighbor’s house for safety. Her neighbor called police and the two waited for assistance. L.B. was taken to the emergency room and an examination for evidence of rape was conducted. L.B. gave police a physical description of her assailant.

¶ 5. Bryant was subsequently arrested and confessed to the crimes. At trial, L.B. identified Bryant as her attacker, recalling that he had spoken to her once before as she unloaded groceries in her apartment complex. Bryant was convicted after a three day trial, and sentenced to a total of one-hundred years based on his status as an habitual offender.

DISCUSSION

A. Confession

¶ 6. Bryant contends that the confession that he gave to authorities was improperly allowed into evidence during trial. Bryant submits that despite invoking his right to counsel, police denied him the opportunity to speak with his attorney. Bryant further argues that the waiver and confessions which followed were not voluntary and that the State failed to meet its burden in proving Bryant’s voluntariness when it failed to produce one of the investigators as a witness.

¶ 7. When authorities arrived at Bryant’s residence, they were operating under a valid arrest warrant for an unrelated traffic violation. Bryant’s mother allowed police into the house and escorted them to Bryant’s bedroom. Bryant was placed under arrest and handcuffed. Police informed him that he was also a suspect in the sexual assault case. Bryant was then read an explanation of his constitutional rights. Police obtained consent to search both Bryant’s bedroom and his vehicle, yielding evidence of the clothes and the unusual headlights described by L.B.

¶ 8. As Bryant was escorted to an officer’s car to be taken to the police station, Bryant asked his mother to contact Tracy Klein, his attorney. Investigators heard this exchange. Detective Rusty Keyes told Bryant’s mother to have Klein contact him at the station. Bryant’s mother called Klein, who informed her that he would not represent Bryant on these charges. Klein said that, as a courtesy to the family, he would contact Keyes to find out “what they had on him.” The parties dispute the number and sequence of phone conversations between Klein and Keyes, but it is clear that at some point Klein informed Keyes that he declined representing Bryant, and that Keyes informed Klein that Bryant had “given it up,” which was explained to mean that he had confessed.

¶ 9. Bryant had been taken to the police station and secured in a room for several minutes while Keyes participated in a detectives’ meeting. Keyes then spoke with Klein before entering the room where Bryant was detained. Keyes testified that he told Bryant that attorney Klein would not represent him. Bryant responded, “Well, there are some things I need to tell you, that I’m responsible for those two rapes of those girls.” Keyes again recited the appropriate warnings, and Bryant confessed to the crimes.

¶ 10. Bryant has a constitutional right to counsel:

If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.

Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The circumstances surrounding Bryant’s confession raise several important questions, which we address separately.

(1) Did Bryant successfully invoke his right to counsel?

¶ 11. The evidence suggests that Bryant did not directly inform the police that he was asserting his constitutional right to counsel. Rather, he directed his mother to contact his attorney, Tracy Klein. An “ ‘assertion’ means some kind of positive statement or other action that informs a reasonable person of the defendant’s ‘desire to deal with the police only through counsel.’ ” Genry v. State, 735 So.2d 186, 196 (Miss.1999) (citing Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986)). Here, Detective Keyes admitted overhearing Bryant’s directive; indeed, Keyes told Bryant’s mother to have Klein contact him at the police station. We find that a reasonable person would understand Bryant’s intent to deal with police only through counsel. We therefore find that Bryant successfully invoked his right to counsel. Once this right is invoked, any interrogation “must cease until an attorney is present.” Minnick v. Mississippi 498 U.S. 146, 150, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990).

(2) Was Bryant being interrogated when he supplied his confession?

¶ 12. Part of the necessary review is whether Bryant made a statement while in custody and while being interrogated. Hunt, 687 So.2d at 1159 (citing Miranda, 384 U.S. at 477-78, 86 S.Ct. 1602). Bryant was in police custody from the time of his arrest in his bedroom. He was advised of his rights. The critical time under review begins at the point of Bryant’s statement to his mother as he was leaving his residence and ending at the point at the police station when he confessed. The record contains no evidence of police questioning during that interval. Bryant himself testified during the suppression hearing that he was transported to the police station and placed in a small interview room alone for twenty to thirty minutes, then moved to another room with Officer Timothy Jackson for another fifteen or twenty minutes. The two engaged in conversation primarily about Bryant’s father. Bryant was then returned to the small room where Keyes informed him that Klein had declined to represent him. Bryant admitted that he was informed of Klein’s withdrawal prior to supplying his confession.

¶ 13. “ ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.” Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Therefore, the Miranda protections extend to “express questioning or its functional equivalent.” Id. at 300-01, 100 S.Ct. 1682. The test does not examine the subjective intent of the police; rather, it asks if the officer should “have known his actions or statements were reasonably likely to elicit an incriminating response.” Snow v. State, 800 So.2d 472, 497 (Miss.2001). Here, a lower court could properly find that Keyes’ statement to Bryant regarding his attorney’s withdrawal did not rise to the level of the equivalent of express questioning. The conduct of the Hattiesburg police did not constitute interrogation of Bryant at the time of his offered confession.

(3) Did Bryant knowingly, intelligently, and voluntarily waive his rights?

¶ 14. Once an accused has asserted his right to deal with police through counsel, he “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Interrogation may resume after invocation of the right only if two conditions have been satisfied: (a) the accused initiates discussions; and (b) the accused knowingly and intelligently waives his rights previously asserted. Duplantis v. State, 644 So.2d 1235, 1242-43 (Miss.1994). Here again, the question distills to whether informing an accused of the status of his requested counsel constitutes interrogation. It was not. Bryant’s statement that he wanted to talk at that point was at his own initiative. Bryant then executed an express waiver of rights. Bryant’s confession was voluntary.

(h) Was Bryant denied the opportunity to meet with counsel?

¶ 15. Bryant suggests that Keyes’ statement that Klein had withdrawn as his counsel is analogous to the factual situation in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). There, counsel and accused attempted to establish contact during police interrogation but were blocked by law enforcement. We find no apt similarity with Escobedo. Klein did not represent Bryant at any point. Klein himself admitted that his phone call to the police station was nothing more than a courtesy offered to Bryant’s family. Because Klein was not Bryant’s attorney, police did not impair Bryant’s right to counsel by failing to facilitate contact between the two.

(5) Was Bryant’s confession involuntary due to the influence of narcotics?

¶ 16. Bryant further asserts that his confession was involuntary due to the influence of narcotics. Bryant testified at the suppression hearing that he took some LSD laced with heroin and also smoked some marihuana hours before he was taken into custody. He submits that his testimony of drug usage in addition to his mother’s corroborating his drug habit are sufficient to support a claim of the involuntariness of his confession.

¶ 17. Voluntariness requires a finding that under the totality of the circumstances, the accused’s statement was the result of his “free and rational choice.” Porter v. State, 616 So.2d 899, 907-08 (Miss.1993) (citing United States v. Rogers, 906 F.2d 189, 190 (5th Cir.1990)). Detective Keyes, a former narcotics officer, testified at both the suppression hearing and at trial that Bryant did not appear to be under the influence of drugs or alcohol. The court deemed Bryant’s confession to be voluntary, a fact-finding that is supported by the evidence.

(6) Did the State fail to meet its burden in proving the voluntariness of Bryant’s confession?

¶ 18. Finally, Bryant argues that the State had to present testimony from Detective Scott Lindsey, one of the officers present when Bryant was placed into custody. Bryant relies on older Mississippi case law for the proposition that the State must offer all officers who were present when the accused was questioned and when the confession was signed, or give an adequate reason for the absence of any such witness. E.g., Lee v. State, 236 Miss. 716, 112 So.2d 254, 256 (1959). After the Miranda v. Arizona approach began in 1966, such older case law was largely displaced. A prima facie case of voluntariness is made from testimony by an officer or others with knowledge of the facts, that the confession was “made without threats, coercion, or offer of reward.” Greenlee, 725 So.2d at 826 (quoting Chase v. State, 645 So.2d 829, 838 (Miss.1994)). Detective Keyes testified extensively regarding the voluntariness of Bryant’s confession. Bryant did not assert that he was threatened or induced by promises to confess, so all the witnesses to the confession did not need to be presented. Agee v. State, 185 So.2d 671, 673 (Miss.1966), as modified by Thorson v. State, 653 So.2d 876, 888 (Miss.1994).

¶ 19. Bryant’s confession was admissible.

B. Weight of the evidence

¶ 20. Bryant also alleges that the jury verdict is against the overwhelming weight of the evidence. We do not set aside a verdict and order a new trial unless to allow the verdict to stand would constitute an “unconscionable injustice.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). Bryant argues that the absence of investigation of other suspects, alleged discrepancies in the victim’s identification testimony, the lack of physical evidence in the case, and the vagueness of Bryant’s confession cumulatively amount to reasonable doubt.

¶ 21. Bryant first submits that authorities were obligated to develop other potential suspects. We do not find an obligation on the State to present proof of the breadth of its investigation. It is necessary but also sufficient that the State present proof that the defendant committed the crime.

¶ 22. Bryant next contends that L.B.’s identification of Bryant was inconsistent and unpersuasive. Such questions concern the credibility and weight of the evidence, the evaluation of which is within the province of the jury. White v. State, 722 So.2d 1242, 1246 (Miss.1998).

¶ 23. Bryant submits that the prosecution’s lack of physical or scientific evidence constituted a failure to connect him with the crime. There was physical evidence admitted, however, specifically Bryant’s clothing obtained after his consent to the police search which matched L.B.’s physical description of her assailant. Additionally, L.B. identified Bryant as her attacker. Bryant also confessed, and the confession was admissible and admitted.

¶ 24. Bryant also submits that his confession faked to acknowledge in “express terms” the crimes charged. He relies on Dedeaux v. State, 519 So.2d 886, 889 (Miss.1988). However, the next sentence of the Dedeaux opinion is that “generally speaking, all voluntary statements or confessions of the defendant are admissible when offered by the State for what weight they may have in the case.” Id. That applies here.

¶ 25. Bryant argues that because his statement refers to twice raping L.B. rather than raping her once, then forcing her to perform oral sex on him, that this did not constitute an express acknowledgment of the charge of sexual battery. However, Bryant’s conviction did not rest on his statement alone. The jury had other weighty evidence to hold down its verdict.

¶ 26. We “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.” McDowell v. State, 813 So.2d 694, 699 (Miss.2002). We are not convinced.

C. Sufficiency of the evidence

¶ 27. Finally, Bryant contends that he is entitled to a directed verdict on the charge of forcible sexual intercourse due to the prosecution’s failure to prove each element of the crime. Specifically, Bryant relies on statutory language requiring the “joining of the sexual organs of a male and female human being in which the penis of the male is inserted into the vagina of the female.” Miss.Code Ann. 97-3-65(5) (Rev. 2000). Bryant then attempts to cast doubt on the factual circumstances satisfying the statutory requirement.

¶ 28. In reviewing a trial court’s denial of a defendant’s request for directed verdict, we consider all evidence in a light favorable to the State, discarding all evidence favoring the defendant. Taylor v. State, 656 So.2d 104, 107 (Miss.1995). We may reverse only if, after such a review, we find that no reasonable, hypothetical juror would find guilt. Tait v. State, 669 So.2d 85, 88 (Miss.1996).

¶ 29. L.B. consistently stated to authorities, to her treating physician, and in her testimony at trial that Bryant penetrated her. Bryant, in his confession, admitted to rape. The evidence proving Bryant’s guilt was overwhelming. The motion for a directed verdict was properly denied.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY OF CONVICTION OF COUNT I BURGLARY AND SENTENCE OF TWENTY-FIVE YEARS; COUNT II FORCIBLE SEXUAL INTERCOURSE AND SENTENCE OF FORTY-FIVE YEARS; AND COUNT III SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS HEREBY AFFIRMED WITH SENTENCES TO RUN CONSECUTIVELY WITHOUT POSSIBILITY OF PAROLE. COSTS ARE ASSESSED TO LAMAR COUNTY.

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

      . This opinion is substituted for that originally issued. The rehearing motion is denied.


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    Vincent WILSON a/k/a “Lil Red”, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-00846-COA.
    Court of Appeals of Mississippi.
    June 24, 2003.
    Rehearing Denied Sept. 2, 2003.

      Wilkinson County Circuit Court, Hon. Lillie Blackmon Sanders, J.
    Pamela A. Ferrington, Natchez, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., MYERS and GRIFFIS, JJ.
   MYERS, J.,

for the court.

¶ 1. Vincent Wilson was convicted of manslaughter by a jury in the Circuit Court of Wilkinson County. Wilson now comes before this Court with an out-of-time appeal.

Issues
I. Did the trial court err in answering a question from the jury during jury deliberations?
II. Was there sufficient evidence to support the verdict?
III. Should the trial court have granted a jury instruction for accessory after the fact to murder?

Facts and Procedural History

¶ 2. Wilson shot Wesley Cavin inside Cavin’s truck during the late evening hours of September 16, 1997. According to forensic evidence, this shot was not fatal, but it appears that Cavin was rendered unconscious by it. Wilson and Lamont Stewart later returned to the truck in an effort to hide the body. For some reason, they beat Cavin’s body at this time. It was this beating that is believed to have been fatal to Cavin. Wilson was found guilty of manslaughter and was sentenced to twenty years in the custody of the Mississippi Department of Corrections on June 17,1998.

¶ 3. On October 12,1999, Wilson submitted a pro se motion styled as a motion for post-conviction collateral relief. The trial judge granted this motion, and on March 16, 2000, ordered that Wilson be granted an out-of-time appeal and appointed counsel to represent him in the appeal. Wilson’s counsel then filed a motion for a new trial instead of filing an appeal on Wilson’s behalf.

¶ 4. On March 27, 2000, the trial judge denied Wilson’s motion for a new trial. The same day, Wilson filed a notice of appeal of both his June 1998 conviction, and of the March 2000 denial of a new trial.

Legal Analysis

¶ 5. We pause before discussing the issues to briefly note that the trial judge was correct in denying Wilson’s motion for a new trial. Although Wilson had been granted an out-of-time appeal, this is not the same thing as a new trial. Rule 59 of the Mississippi Rules of Civil Procedure states: “A motion for a new trial shall be filed not later than ten days after the entry of judgment.” (emphasis added). Wilson’s motion was filed almost two years after the entry of judgment. The trial judge was quite correct to deny the new trial.

I. Did the trial court err in answering a question from the jury during jury deliberations?

¶ 6. After some deliberation, the jury returned with what everyone thought was a verdict. In reality, the jury had a question for the judge. This written question, which the trial judge read to both the prosecution and the defense in chambers, asked, “Judge Sanders, can we vote for a lesser charge of Accessory to Murder?” The State immediately responded, “Your Honor, I’m not even sure if we can even answer that question other than to tell them that they have the instructions.” The defense said, “I guess we can write a note and let them read the note.” Acting upon Wilson’s suggestion, the trial court crafted a response, “Jurors, the Court has received your note and you have been given all the instructions that you are allowed and you are not permitted to use what you have written in the form of a verdict.” Wilsons’s counsel then suggested, “Put a note on there: Do not destroy this note.”

¶ 7. The trial judge and counsel returned to the courtroom. The jury returned. The trial judge then told the jury:

Ladies and gentlemen of the jury, you brought back what was suppose [sic] to be a verdict, but it was not. I’m going to now read to you Instruction No. 18 at the bottom. It has S-4 on it.
“And the Court instructs the jury that if you find the defendant, Vincent Wilson, guilty of murder, the form of your verdict shall be: We, the jury, find the defendant, Vincent Wilson, guilty of murder. If you find the defendant not guilty of murder but guilty of manslaughter, the form of your verdict shall be: We, the jury, find the defendant, Vincent Wilson, guilty of manslaughter. If you find the defendant not guilty of murder and not guilty of manslaughter, the form of your verdict shall be: We, the jury, find the defendant, Vincent Wilson, not guilty.”
Whatever verdict you return, you shall write said verdict on a separate sheet of paper. Do you understand me now? Your verdict must be one of these three. It cannot be what you wrote on that paper. Do you understand that?

The jury responded affirmatively. They again deliberated, and they found Wilson guilty of manslaughter.

¶ 8. Wilson now contends that this was an improper comment upon the testimony and upon the weight of the evidence. We disagree.

¶ 9. It appears that Wilson has waived any right to appeal on this issue since his counsel did not object at the trial. Indeed, it was his counsel’s suggestion that a note be written to the jury answering the question. An error is considered waived when not objected to during the trial. Smith v. State, 530 So.2d 155, 161-62 (Miss.1988); Longmire v. State, 749 So.2d 366, 368(¶5) (Miss.Ct.App.1999). There was no objection during trial, so we may not consider this question.

¶ 10. Additionally, even though the transcript demonstrates that a note was created to respond to the jury’s question, we have no evidence that the note was given to the jury. There is no further mention of the note anywhere in the transcript or record after the trial judge and counsel left chambers. When the judge answered the jury’s question in the courtroom, she merely re-read an instruction which the jury had already received. It is true that a judge must use great care when answering a question from a deliberating jury. However, only if it is shown that the judge has influenced the jury’s verdict will it be reversible error. Gulf Hills Dude Ranch, Inc. v. Brinson, 191 So.2d 856, 861 (Miss.1966). If anything, the trial judge’s actions would have made it more likely for the jury to find Wilson not guilty. The jury’s question would indicate that there was, at one point, a concern that Wilson was not guilty of murder or of manslaughter. The trial judge told the jury again that in such a situation, they are to return a verdict of not guilty. Instead, the jury returned a verdict on the charge of manslaughter.

II. Was there sufficient evidence to support the verdict?

¶ 11. Wilson asserts that the evidence presented against him would support a charge of aggravated assault, but not a charge of murder or manslaughter. We disagree and find that the evidence was sufficient to support a finding that Wilson beat Cavin to death.

¶ 12. When reviewing the sufficiency of the evidence, we must view the evidence in a light most favorable to the State. All credible evidence pointing to Wilson’s guilt will be held to be true. The State will be given all favorable inferences which may be made from that evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 13. The forensic evidence found that Cavin was killed by “blunt force trauma producing massive cranial cerebral trauma.” Evidence was presented that Wilson delivered a non-lethal gunshot wound to Cavin’s head. A witness stated that Wilson had several large heavy tools in his possession with which he could cause blunt force trauma. The same witness testified that he had driven Wilson to retrieve Ca-vin’s body and then heard beating noises, which he specifically described as sounding like “kicking a box.” While the witness stated these sounds could have been Wilson trying to break the steering column on the car so he could hot-wire it, the witness said Wilson was standing behind the car at the time the beating sounds were heard. From this evidence, a juror could reasonably infer that Wilson had shot Cavin, rendering Cavin unconscious. Then, before Cavin could regain consciousness, Wilson returned to the scene of the crime, and then beat Cavin to death.

III. Should the trial court have granted a jury instruction for accessory after the fact to murder?

¶ 14. The jury instructions, or at least jury instruction number eighteen, would have allowed the jury to find Wilson guilty of murder, guilty of manslaughter, or not guilty of any charge. Wilson advances the position that the jury should also have been given the option to find him guilty of aggravated assault.

¶ 15. A criminal defendant is “entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Humphrey v. State, 759 So.2d 368, 380(¶ 33) (Miss.2000) (quoting Heidel v. State, 587 So.2d 835, 842 (Miss.1991)). It is impossible for us to comply with this standard of review since the jury instructions, other than instruction number eighteen, which the court read to the jury when it inquired about accessory after the fact, were not provided in the record. As such, we may not review the jury instructions as a whole as is required. See Smith v. State, 839 So.2d 489, 498(¶ 28) (Miss.2003).

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF WILKINSON COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WILKINSON COUNTY.

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


author: GRIFFIS, J.,

text:
    Ottie WESTERBURG, Appellant, v. John Dalton WESTERBURG, Appellee.
    No. 2002-CA-00815-COA.
    Court of Appeals of Mississippi.
    June 24, 2003.
    Rehearing Denied Sept. 2, 2003.

      John R. Reeves, attorney for appellant.
    R. Conner McAllister, attorney for ap-pellee.
    Before KING, P.J., MYERS and GRIFFIS, JJ.
   GRIFFIS, J.,

for the court.

¶ 1. On April 3, 1998, the Chancery Court of Hinds County entered a final judgment of divorce dissolving the marriage of Ottie Omega Westerburg and Dalton Westerburg. The parties agreed to an irreconcilable differences divorce and submitted the distribution of marital property to the chancellor. The chancellor’s final distribution of property was contained in the final judgment. This appeal results from a disagreement about exactly what property the husband was to receive.

¶ 2. One month following the entry of the final judgment, on May 7, 1998, Mr. Westerburg filed a motion for contempt alleging that Mrs. Westerburg had not provided him access to his personal property and that she would not cooperate in helping him locate the items awarded to him by the chancellor. The chancellor held a hearing, on July 1, 1998, and found Mrs. Westerburg in willful contempt for not returning certain items of personal property awarded to Mr. Westerburg in the final judgment. The chancellor directed Mrs. Westerburg to furnish keys to her home and two sheds located on her property so that Mr. Westerburg and his attorney could search for the disputed items. The chancellor also awarded Mr. Wester-burg $650 in attorney’s fees plus the $150 costs of court. The chancellor authorized him to withhold the amount awarded from the next alimony payments due. The chancellor indicated that if any of the items were not found then the court would consider the matter further to establish a method for Mrs. Westerburg to purge herself of contempt.

¶ 3. After the hearing, Mr. Westerburg’s attorney drafted an order and, as required by the Uniform Chancery Court Rules, submitted it to Mrs. Westerburg’s attorney counsel for approval. The order was neither approved by counsel nor entered by the chancellor.

¶ 4. The matter languished until Mrs. Westerburg obtained a new attorney, who set the contempt motion for hearing again on April 11, 2002. At this hearing, the chancellor heard additional evidence. Mr. Westerburg testified that had retrieved or no longer claimed certain items but he did claim and had not received the following items: used miter saw, used tools, tackle box, lures, ice chest (60 quart), fishing rods (Shimano and Diawa), and fish stringers. According to Mr. Westerburg, the value of these items was $2,410. Mrs. Westerburg argued that her obligation was unenforceable because the contested items were not specifically described in the final judgment “to meet the standards of specific performance.” Unpersuaded, the chancellor held:

[w]hile a cursory examination of the list of personal property involved might lead one to the conclusion that the items were not sufficiently described, the Court believes now as it has throughout these proceedings that the entire record of this matter shows persuasively that Ottie knew very well the identity of the items she was made responsible for returning to Dalton. These parties lived together for over thirty years, and for most of that time worked side by side running a successful business and living adjacent thereto. The Court also found highly credible Dalton’s assertion that Ottie’s adult children by another marriage pilfered their marital estate and personal belongings throughout the marriage, with Ottie’s knowledge and consent, and that some if not all the items now in question were taken by them. Ottie’s “second bite at the apple” as the saying goes, has benefitted her in no way and the Court finds that she continues to be in contempt of this Court.

¶ 5. The chancellor accepted Mr. Wes-terburg’s unrebutted testimony as to the value of the missing items, $2,410, and authorized him to deduct this amount from the balance of alimony owed. In addition, the chancellor awarded Mr. Westerburg an attorney’s fee of $1,200 for the second day of trial of this matter, together with costs of the court, and authorized him to withhold alimony payments to Ottie until the fees and expenses are recouped.

LEGAL ANALYSIS

I. Whether the chancellor abused his discretion in holding Mrs. Wester-burg in contempt.

¶ 6. A citation for contempt is determined upon the facts of each case and is a matter for the trier of fact. Milam v. Milam, 509 So.2d 864, 866 (Miss.1987). A citation of contempt is proper when “the contemner has willfully and deliberately ignored the order or the court.” Bredemeier v. Jackson, 689 So.2d 770, 777 (Miss.1997). The factual findings of the chancellor in civil contempt cases are affirmed unless manifest error is present. Purvis v. Purvis, 657 So.2d 794, 797 (Miss.1994) (citing Caldwell v. Caldwell, 579 So.2d 543, 545 (Miss.1991)). Contempt matters are committed to the substantial discretion of the trial court, and we will not reverse where the chancellor’s findings are supported by substantial credible evidence. Id.

¶ 7. Mrs. Westerburg claims that the description of the items in the final judgment was too vague and should have been more specific to be enforced. This Court’s inquiry is limited to whether the chancellor’s final judgment was violated and this necessarily includes questions of whether it was possible to carry out the judgment.

¶ 8. Before a party may be held in contempt for failure to comply with a judgment, “the judgment must be complete within itself ... leaving open no matter or description or designation out of which contention may arise as to meaning.” Davis v. Davis, 829 So.2d 712, 714(¶ 9) (Miss.Ct.App.2002) (quoting Wing v. Wing, 549 So.2d 944, 947 (Miss.1989)). A person is entitled to be informed with a high degree of clarity as to exactly what her obligations are under a court order before she can be found in contempt for willfully disobeying that order. Switzer v. Switzer, 460 So.2d 843, 846 (Miss.1984).

¶ 9. Mrs. Westerburg and her former attorney testified that a miter saw was returned to Mr. Westerburg, as well as other tools and fishing equipment. However, Mr. Westerburg rejected the items presented as not being the items awarded by the chancellor. In particular, Mr. Wes-terburg claimed that he was entitled to an electric Craftsman miter saw, but he was presented with a different used manual saw. As to the fishing equipment, Mrs. Westerburg’s attorney brought Mr. Wes-terburg some rods and tackle, but Mr. Westerburg contends that the equipment delivered were not the “Shimano or Dia-wa” rods or the tackle and lures he was entitled to under the final judgment.

¶ 10. As to the “used tools” awarded in the final judgement, Mr. Westerburg claimed that the term was understood to describe several tools that were not delivered, specifically an open-end wrench set and certain tools that belonged to his father.

¶ 11. We recognize that with respect to certain items in question, the final judgment may have been more artfully drawn. However, we find that the divorce judgment was sufficiently specific and reasonably clear as to the items belonging to Mr. Westerburg. There is nothing in the judgment that could be construed to relieve Mrs. Westerburg of her obligation so long as she continued to possess the items awarded to her former husband. Indeed, the parties were back in court approximately one month after the final judgment was entered disputing the proper division of personal property. We do not find manifest error in this case. Accordingly, we affirm the chancellor.

II. Whether the chancellor abused Ms discretion in awarding attorney’s fees.

¶ 12. The award of attorney’s fees, in domestic matters, is entrusted to the sound discretion of the trial court. Mizell v. Mizell, 708 So.2d 55, 65(¶ 56) (Miss.1998). ‘We are reluctant to disturb a chancellor’s discretionary determination whether or not to award attorney fees and the amount of award.” Smith v. Smith, 614 So.2d 394, 398 (Miss.1993). However, the chancellor is not without limitation in such award. In McKee v. McKee, 418 So.2d 764, 767 (Miss.1982), the supreme court established certain factors to be considered in making an award of attorney’s fees:

In determining an appropriate amount of attorneys fees, a sum sufficient to secure one competent attorney is the criterion by which we are directed. The fee depends on consideration of, in addition to the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.

¶ 13. While Mr. Westerburg may be entitled to an award of attorney’s fees, there was no evidence before the chancellor as to the amount of attorney’s fees charged, incurred or due for the first and second days of trial as awarded by the chancellor. Nor was there any evidence as to the McKee factors. Accordingly, we must reverse and render where there is no evidence presented in support of such award. See Carpenter v. Carpenter, 519 So.2d 891 (Miss.1988) ($2800 award reversed and rendered where not justified by the evidence); Bumgarner v. Bumgarner, 475 So.2d 455 (Miss.1985) ($2000 award reversed and remanded because there was practically no evidence presented as to the McKee factors).

¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. COSTS OF THIS APPEAL ARE ASSESSED HALF TO THE APPELLANT AND HALF TO THE AP-PELLEE.

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


author: THOMAS, J.,

text:
    Antonio GRANGER a/k/a Antonio Terrell Granger a/k/a “Abby”, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00138-COA.
    Court of Appeals of Mississippi.
    July 22, 2003.

      William R. Labarre, Hollandale, Attorney for Appellant.
    Office of the Attorney General, by Billy L. Gore, Attorney for Appellee.
    Before MCMILLIN, C.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the Court:

¶ 1. Antonio Granger was convicted as a habitual offender of possession of marijuana with the intent to sell, transfer, or distribute to others. Aggrieved he asserts the following:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO ALLOW THE WITNESS OF THE APPELLANT TO TESTIFY AT TRIAL.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO SUPPRESS THE STATEMENT OF THE APPELLANT.

FACTS

¶ 2. On the evening of February 12, 2000, Jimmy Branning, an agent with the Central Delta Drug Task Force, and E.B. Gresham, a motor vehicle senior inspector, witnessed a motor vehicle make an improper turn into the parking lot at Little Shooters liquor store. The law enforcement officials turned in behind the vehicle. As the two approached the vehicle, an individual identified as Antonio Granger exited the vehicle to talk to Officer Gresham. Gresham testified that he smelled a strong odor of burned marijuana from the car and Granger. As Officer Gresham inquired as to the status of Granger’s driver’s license and the possibility of searching his car, Granger ran from the scene. At about the same time the passenger of the vehicle exited and ran as well.

¶ 3. A check of the tag revealed the car was registered to Antonio Granger. The vehicle was searched and its contents inventoried. Over three pounds of marijuana was found in the trunk of the vehicle along with over $4,000 in cash. A warrant was subsequently issued for Granger’s arrest and he was taken into custody on February 16, 2000.

¶4. Granger testified that he and a friend, Jacques Winder, were drinking and driving that night and he had pulled into the liquor store parking lot to purchase more liquor. He testified that Winder was in the store when the authorities approached. He further testified that the other passenger of the vehicle was a man known only as Shannon and that the bag containing the money and marijuana belonged to him. The officers testified they never saw a passenger exit the vehicle and enter the liquor store.

¶ 5. At trial Granger attempted to call Winder as a witness. Winder was not permitted to testify because of a discovery violation. In Granger’s updated and final discovery disclosure it states Winder “may” testify from personal knowledge as to the facts and events that occurred on February 12, 2001. There was an overall failure to describe the “facts and events,” which subsequently led to the court’s ruling not to allow the witness to testify.

¶ 6. A suppression hearing was conducted prior to trial to determine the admissibility of statements made by Granger to Officer Branning after his arrest. At the suppression hearing Branning testified that the statements made by Granger were done voluntarily and without any provocation from him. Branning testified that Granger asked to speak with him and then proceeded to speak without being questioned. Branning’s testimony was corroborated by Deputy Robert Winn. Branning also testified that he gave Gran-ger Miranda warnings twice before they spoke on two different occasions. At trial Branning was called to rebut testimony of Granger. Branning testified that Granger asked to speak with him away from the jail because the people made him nervous. Branning stated that he read Granger his rights again once they arrived at the police lodge away from the jail and Granger began to tell Branning the names of individuals that he could buy drugs from to act on behalf of the task force. Branning then testified that he asked Granger where he had acquired the marijuana that was found in his vehicle and Granger stated he was taking it to a guy named Pookie. Granger then stated that the money found in the vehicle was his. Branning testified that Granger stated that he was the middle man between Greenville and Texas. Gran-ger then informed Branning that he was on his way to sell the marijuana to Pookie.

I. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR WHEN IT REFUSED TO ALLOW THE WITNESS OF THE APPELLANT TO TESTIFY AT TRIAL?

¶ 7. Granger asserts that the trial court committed reversible error by not allowing a witness to testify at trial. At no time was an offer of proof procured by Gran-ger’s attorney in order to preserve the issue for appeal.

¶ 8. In dealing with discovery violations, the court is faced with two conflicting interests. Box v. State, 437 So.2d 19, 21 (Miss.1983). First, there is the interest in presenting all relevant and probative evidence for the jury. Id. On the other hand, there is the interest in providing reasonable access to the evidence of each party in order to prevent “trial by ambush.” Morris v. State, 777 So.2d 16, 27(¶ 51) (Miss.2001). The Mississippi Supreme Court has reiterated its commitment to the proposition that “justice is more nearly achieved when, well in advance of trial, each side has reasonable access to the evidence of the other.” Box, 437 So.2d at 21. The reciprocal discovery-rules apply evenhandedly to both the prosecution and the defense. Coates v. State, 495 So.2d 464, 467 (Miss.1986). Pursuant to Uniform Circuit and County Court Rule 9.04(A), reciprocal discovery requires the disclosure of:

1. Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial, together with a copy of the contents of any statement, written, recorded or otherwise preserved of each such witness and the substance of any oral statement made by any such witness;
2. Copy of any written or recorded statement of the defendant and the substance of any oral statement made by the defendant;
3. Copy of the criminal record of the defendant, if proposed to be used to impeach;
4. Any reports, statements, or opinions of experts, written, recorded or otherwise preserved, made in connection with the particular case and the substance of any oral statement made by any such expert;
5. Any physical evidence and photographs relevant to the case or which may be offered in evidence; and
6. Any exculpatory material concerning the defendant.

URCCC 9.04(A)(5). Rule 9.04 imports no per se rule of inadmissibility for evidence in violation of reciprocal discovery rules. Galloway v. State, 604 So.2d 735, 739 (Miss.1992); Scott v. State, 831 So.2d 576, 578(¶ 8) (Miss.Ct.App.2002).

¶ 9. However, a party who wishes to preserve an issue for appeal must make a proffer. “Generally, when a party seeks to offer evidence which in turn is excluded by the trial court, before we will consider the matter on appeal the party must have somehow placed in the record the nature and substance of the proffered evidence for our consideration.” Harris v. Buxton T.V., Inc., 460 So.2d 828, 833 (Miss.1984). When testimony is excluded at trial, a record must be made of the proffered testimony in order to preserve the point for appeal. Thompson v. State, 602 So.2d 1185, 1188 (Miss.1992)(citing Gates v. State, 484 So.2d 1002, 1008 (Miss.1986)). This issue is without merit.

II. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR WHEN IT FAILED TO SUPPRESS THE STATEMENT OF THE APPELLANT?

¶ 10. Granger asserts that it was error to allow testimony of oral statements made by Granger to Officer Branning. The trial court ruled that there had been no violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or the Fourth Amendment, but found the statement to be so prejudicial that it could not be used in the State’s case in chief, but could be used, if needed, in rebuttal. The State, in rebuttal of Granger’s own testimony, proffered testimony from Officer Branning regarding Granger’s oral confession. The trial court ruled that Granger “opened the door” and since it was determined that the statements made by Gran-ger were free and voluntary then the statements were allowed to rebut Gran-ger’s testimony. Granger argues that the trial court erred in determining that the statements made by Granger were voluntary.

¶ 11. Usually, a confession must be voluntary and not the result of promises, threats, or inducements to be deemed admissible. Mixon v. State, 794 So.2d 1007, 1009(¶ 4) (Miss.2001). “The test in such cases is whether the inducement is of a nature calculated under the circumstances to induce a confession irrespective of its truth or falsity.” Taylor v. State, 789 So.2d 787, 795(¶ 34) (Miss.2001). It is the prosecution’s burden to prove beyond a reasonable doubt that the confession was voluntary. Mixon, 794 So.2d at (¶ 4). The prosecution meets this burden by presenting testimony from an officer or other person having knowledge of the facts, who states that the confession was made voluntarily without threats, coercion, or offer of reward. Id.

¶ 12. This Court only has a limited review when determining if a confession is voluntary. Id. at 1010(¶ 5). The trial judge sits as finder of fact when he or she determines the voluntariness, and this Court will not overturn the trial judge’s decision unless manifestly wrong. Id.

¶ 13. The State made out a prima facie case of voluntariness by demonstrating in the suppression hearing that contact was initiated by Granger and multiple Miranda warnings were given. Officer Bran-ning testified as to the voluntariness of the statements and Granger made no attempt to refute Branning’s testimony. This issue is without merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF POSSESSION OF MARIJUANA WITH INTENT TO SELL, TRANSFER OR DISTRIBUTE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED AGAINST WASHINGTON COUNTY.

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


text:
    Kevin Conrad MIXON, Appellant, v. Ida Beatrice Mixon SHARP, Appellee.
    No. 2002-CA-01141-COA.
    Court of Appeals of Mississippi.
    Aug. 12, 2003.

      Earl P. Jordan, for appellant.
    Ida Beatrice Mixon Sharp (Pro Se), for appellee.
    Before McMILLIN, C.J., THOMAS, MYERS and CHANDLER, JJ.
   MYERS, J.,

for the court.

¶ 1. Beatrice Mixon Sharp filed a petition for modification of custody on June 1, 2000, in the Chancery Court of Clarke County. The chancellor, after several days of testimony, granted Sharp’s motion. Sharp’s ex-husband, Kevin Conrad Mixon, now appeals the chancellor’s decision, asserting the following issues:

I. Whether a material change in circumstance that was adverse to the best interest of the child existed.
II. Whether the chancellor erred in modifying custody by not properly considering and weighing each of the Al-bright factors on the record.
III. Whether the chancellor erred in awarding Sharp attorney fees in this modification action.

Facts and Procedural History

¶ 2. Mixon and Sharp were divorced by the Chancery Court of Clarke County on June 1, 1994. Simultaneously, Mixon was awarded primary custody of their minor child, Amber Beatrice Mixon. Sharp was granted visitation and ordered to pay child support to Mixon.

¶ 3. From spring of 1998 to June 1, 2000, Sharp did not visit with Amber. Sharp claims this is because Mixon would not allow her to have access to their daughter. Mixon claims that Sharp told him she was moving to Tennessee and could no longer visit with Amber. During this time, Sharp began to volunteer at Quitman Lower Elementary School, the school that Amber attended at the time, admittedly to see Amber. When Amber transferred to another school district, Sharp stopped volunteering at the school. From the time the motion for modification was filed until the hearing on the motion was held, Sharp was allowed to visit with Amber.

¶ 4. Since their divorce, Sharp has been remarried twice, and has lost custody of another child to the Clarke County Department of Human Services. She has also been arrested for public intoxication and indecent exposure. She is currently a part-time student at the University of West Alabama, and has no employment. Sharp’s current husband is a construction worker in Texas. Sharp resides in Quit-man, Mississippi, and has no plans to move to Texas to be with her husband.

¶ 5. Mixon has also remarried and currently fives in Lauderdale County, Mississippi, with his new wife and her two children. At the time of the divorce, he worked during the day, but since being remarried, he has switched to working nights.

¶ 6. The chancellor heard testimony, and in a memorandum opinion, granted Sharp’s motion for modification. Sharp now has primary custody of Amber, with Mixon having visitation. Mixon must now pay child support to Sharp.

Standard of Review

¶ 7. Our standard of review in child custody cases is well settled. “[T]he chancellor must either commit manifest error, act in a way that is clearly erroneous, or apply an erroneous legal standard before this Court can reverse.” Passmore v. Passmore, 820 So.2d 747, 749(¶ 5) (Miss.Ct.App.2002).

Legal Analysis

I. Whether a material change in circumstance which was adverse to the best interest of the child existed.

¶8. A change in child custody should only be undertaken when there is a material change in circumstances which would suggest that a change of custody is in the best interest of the child. Before undertaking a possible change of custody, the court must first identify the specific material changes in circumstances, which make such a consideration appropriate. Sturgis v. Sturgis, 792 So.2d 1020, 1023(¶ 13) (Miss.Ct.App.2001). We find that no such material changes in circumstances exist in this case.

¶ 9. The chancellor found the following to constitute a material change of circumstances which adversely affects Amber: Mixon’s alleged interference with Sharp’s visitation, Mixon’s work schedule, and problems between Amber and her step-siblings. We will speak to each of these criteria individually.

¶ 10. First, the chancellor found that Mixon interfered and prevented Sharp from exercising her visitation with Amber. In Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993), the Supreme Court of Mississippi held that a mother’s refusal to allow the child’s father to visit with the child did not constitute a material change in circumstances. “The better rule would be for a chancellor to enforce contempt orders through incarceration, when necessary, to insure compliance with custody provisions rather than resorting to a change of custody” Id. If the chancellor found Mixon has purposely refused to allow Sharp to visit Amber, the chancellor should have incarcerated Mixon. Changing child custody is not appropriate punishment for contempt.

¶ 11. Next, the chancellor found “[Mix-on]’s work schedule is not conducive to his providing primary care for Amber....” Mixon did not change his schedule until after he re-married. Until then, he worked days so that he would be able to take care of Amber when she was home from school. We are not aware of any Mississippi cases that directly apply to this case, but guidance may be gained by looking to the case law of other jurisdictions.

¶ 12. In Alabama, a material change in circumstances was found where a custodial parent, after the divorce, began working nights and had no safe and suitable supervision for the child. Davis v. Davis, 451 So.2d 316, 319 (Ala.Civ.App.1984).

¶ 13. In In re Marriage of Whipp, 265 Kan. 500, 962 P.2d 1058 (1998), the Kansas Supreme Court found that a material change of circumstances did occur when the father, who had custody of the daughter, began working nights and moved out of housing he shared with a Ms. McGowan. However, the court appears to have placed emphasis on the fact that the child would no longer be supervised by McGowan, with whom the child had built a close relationship. Id. at 1063-64.

¶ 14. A Missouri case is particularly relevant to the situation before us today. There, a noncustodial father was asserting, inter alia, that the fact the mother began working nights was a material change in circumstances, and the court should therefore award custody of the child to him. Henderson v. Henderson, 622 S.W.2d 7, 10 (Mo.Ct.App.1981). The court found that this was not a material change in circumstances since the mother made adequate arrangements for the care of the child in her absence. Id.

¶ 15. These cases suggest that as long as the child is safe and supervised while the parent must be at work, a change in a work schedule is not a material change in circumstances. That is this Court’s holding as well.

¶ 16. Finally, the chancellor thought that the problems Amber had with her step-sister also constituted a material change in circumstances. While our research did not result in any case law to speak to either side of this argument, we hold that such problems are typical in families, let alone step-families, and are best solved as an internal matter within the family. Holding that failure of sibling or step-siblings to get along peacefully is a material change of circumstances would be a dangerous precedent which this Court is not prepared to make.

¶ 17. Finding no material change in circumstances, we hold it was clear error for the chancellor to change the custody of Amber.

II. Whether the chancellor erred in modifying custody by not properly considering and weighing each of the Al-bright factors on the record.

¶ 18. Our finding on the previous issue makes this issue moot. However, for the sake of thoroughness, we will discuss the Albright factors as they apply in this case.

¶ 19. Once a material change in circumstances as they relate to child custody has been found, the chancellor should use the Albright factors to decide which parent should have custody of the child. Sturgis, 792 So.2d at 1025(¶ 19). These factors, as set forth in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), are: the health and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship. We shall discuss these factors one by one.

¶ 20. The health and sex of the child. Amber was ten years old at the time of the trial and is female. She is in good health. The chancellor found this factor favored Sharp since Amber will soon enter puberty. There is no doubt that is true, however, this fails to consider that Mixon has remarried. In her new family, Amber has a step-mother, with whom Amber gets along very well, and a step-sister to turn to for any questions concerning her becoming a woman. We find, at best, that this factor does not favor either parent.

¶ 21. The parent who has had the continuity of care. For the eight years between her parents’ divorce to the trial in this action, Amber has lived with her father. He has been the primary care-giver to her. Admittedly, he has had help with her. Both Mixon’s father and his new wife have helped him take care of Amber. Despite this help, this factor weighs in Mix-on’s favor. The chancellor made a similar finding, but appeared to place greater emphasis on Sharp’s willingness to provide care.

¶ 22. Which parent has the best parenting skills and which has the willingness and capacity to provide primary child care. We must find that this factor weighs in Mixon’s favor. Sharp has had a child (from a husband different than Mixon and her current husband) removed from her care by the Department of Human Services. That child was later returned to his father. While Sharp is working on a degree in elementary education, we would have great hesitation to award custody to a parent who has been found to be unfit to raise another of her children. It does not appear the chancellor considered this in her finding.

¶ 23. The employment of the parent and responsibilities of that employment. Mixon currently works nights. Sharp is a part-time student, and at the time of the trial, was not employed. She testified that she could arrange her school schedule around Amber’s school hours. Sharp was totally dependent upon her husband for income. The chancellor found that the flexibility of Sharp’s schedule put this factor in her favor. We believe that this factor is neutral toward both parents. Should Sharp not be able to arrange her school schedule around Amber’s school in the future, Sharp will also depend on the mercies of friends and relatives to look after Amber.

¶24. The physical and mental health and age of the parents. Both Mix-on and Sharp are of similar age and are in good health. This factor favors neither parent.

¶ 25. Emotional ties of parent and child. Amber loves both parents. She misses her mother, but this is to be expected as she is the non-custodial parent. The chancellor made no finding on this factor. We find neither parent is favored by this factor.

¶26. Moral fitness of parents. The chancellor found that moral fitness was not at issue in the case. We believe that while it was not a significant issue in the case, it was an issue, as witnessed by questioning Sharp about her arrest record. Sharp has been arrested for public intoxication and for indecent exposure. She has also had a child removed from her custody and placed in the custody of the child’s father. Such actions do call into question Sharp’s moral fitness. While Sharp asserts that she was recently “saved” before the trial, this testimony is weakened by her failing to take Amber to church for approximately four months preceding the trial.

¶27. Mixon has, as far as the record reflects, no arrests, and has not been in trouble with the law. He is a Sunday school teacher at his church, and until recently, was a church officer. This factor favors Mixon.

¶ 28. The home, school and community record of the child. Until Mixon’s remarriage, Amber and he lived in Stonewall, Clarke County, Mississippi. She attended the Quitman Consolidated School System. Since the remarriage, Mixon and Amber have moved to Lauderdale County, Mississippi, and Amber now attends school at Clarkdale Attendance Center. Most of Amber’s friends are in the Quitman school system. Most of her relatives are in Clarke County. Sharp still lives in Quit-man, the county seat of Clarke County. As did the chancellor, we find this factor weighs in Sharp’s favor.

¶ 29. The preference of the child at the age sufficient to express a preference by law. Amber was only ten years old. Under Mississippi law, a child under the age of twelve is too young to have their preference considered. Miss.Code Ann. § 93-11-65 (Supp.2000); Thompson v. Thompson, 799 So.2d 919, 925(¶ 23) (Miss.Ct.App.2001). The chancellor noted that Amber was not old enough to have her opinion considered. Nevertheless, the chancellor stated, “She will be at that age in less than two years, and the court has heard and considered her testimony in making findings in this civil action.” We will give the chancellor the benefit of the doubt and assume that this factor was not an area where Amber’s testimony was considered.

¶ 30. Stability of home environment and employment of each parent. It is unclear whether the chancellor considered this factor. Sharp has held several jobs since her divorce from Mixon. She has remarried twice. Her current husband does not live with her. She is a part-time student and at the time of the trial, unemployed. She has moved to Waynes-boro and back to Quitman since the divorce. In the past, she has been in an abusive relationship with an alcoholic. Mixon, on the other hand, has also moved since the divorce when he was remarried. There is always at least one parent at home with the children. He has been with the same employer for fourteen years. This factor favors Mixon.

¶ 31. Upon our review, we find the chancellor’s analysis of the Albright factors to be clearly erroneous.

III. Whether the chancellor erred in awarding Sharp attorney’s fees in this modification action.

¶ 32. Mixon is correct in his assertion that attorney’s fees are not normally awarded in child custody modification actions. However, this was not just a modification action, but was also an action seeking a finding of contempt. Even though the chancellor did not specifically find Mixon in contempt, she did find that Mixon interfered with the chancery court’s previous custody order by denying visitation between Amber and Sharp. A chancellor may award attorney’s fees as the result of a contempt action, even where the contempt stems from a domestic relations action. Creel v. Comacchione, 831 So.2d 1179, 1183-84(¶ 18) (Miss.Ct.App.2002). Additionally, the chancellor made it clear in her order that the fees were awarded as a result of Mixon’s interfering with an order of that court. As such, the award of attorney’s fees is affirmed.

¶ 33. THE JUDGMENT OF THE CHANCERY COURT OF CLARKE COUNTY IS REVERSED AND RENDERED AS TO MODIFICATION OF CHILD CUSTODY AND THE AWARD OF ATTORNEY’S FEES IS AFFIRMED. COSTS OF THIS APPEAL ARE TO BE DIVIDED BETWEEN THE PARTIES.

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


text:
    Jerry Lane HAMLIN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00933-COA.
    Court of Appeals of Mississippi.
    Aug. 19, 2003.

      Jerry Lane Hamlin, appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the Court:

¶ 1. Jerry Hamlin pled guilty to one count of armed robbery. Hamlin was sentenced to serve thirty years in the custody of the Mississippi Department of Corrections with twenty years, suspended and placed on five years’ post release supervision. The sentence was to run concurrently with the sentences in connection with the other charges to which he pled guilty that same day. Within two years of his plea, Hamlin filed a pro-se motion for post-conviction relief which was denied. Aggrieved he asserts the following:

I. IT WAS ERROR FOR THE COURT TO ACCEPT HAMLIN’S GUILTY PLEA WITHOUT AN AFFIRMATIVE SHOWING THAT IT WAS INTELLIGENT AND VOLUNTARY.
II. HAMLIN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

FACTS

¶ 2. Jerry Hamlin pled guilty to one count of robbqry, one count of armed robbery and one count of kidnaping on July 18, 2000, in the Circuit Court of Alcorn County. Hamlin was questioned extensively regarding his plea of guilty on each individual count. The facts and charges set out in the indictment were read to him and he stated that he agreed with the indictment. During the plea hearing the circuit court explained each charge and the penalty each charge carried. Hamlin was questioned whether he understood the charges and whether his plea of guilty was being entered knowingly and voluntarily. Hamlin answered in the affirmative.

¶ 3. Hamlin filed for post-conviction relief two years later which was denied by the circuit court.

ANALYSIS

¶ 4. “When reviewing a lower court’s decision to deny a petition for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo.” Graves v. State, 822 So.2d 1089, 1090(¶ 4) (Miss.Ct.App.2002) (citing Pickett v. State, 751 So.2d 1031, 1032(¶8) (Miss.1999); Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)). Hamlin provides little authority to support his issues as well as very few facts, to substantiate his claims.

I. WAS IT ERROR FOR THE COURT TO ACCEPT HAMLIN’S GUILTY PLEA AND WAS HAMLIN’S PLEA ENTERED INTELLIGENTLY AND VOLUNTARILY?

¶ 5. Hamlin asserts that the record does not contain an adequate factual basis to support his guilty plea to the charge of armed robbery. He claims that since he did not admit to the fact that he was armed, then the court’s acceptance of his guilty plea was in error.

¶ 6. The standard of review pertaining to voluntariness of guilty pleas is well settled: “this Court -will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous.” Weatherspoon v. State, 736 So.2d 419, 421(¶ 5) (Miss.Ct.App.1999). The burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence. Id. at 422 (superceded by Miss. Code Ann. §§ 99-39-23 (Rev.2000)); Terry v. State, 839 So.2d 543, 545(¶ 7) (Miss.Ct.App.2002). A plea is considered “voluntary and intelligent” if the defendant is advised about the nature of the charge against him and the consequences of the entry of the plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992).

¶ 7. The circuit court questioned Hamlin as to the facts set out in the indictment and he affirmed the truth and veracity of those statements. Hamlin admitted to handing the cashier a note which stated that he had a gun and that the cashier should provide him with the money in the register. Hamlin admitted that he had a bulge in his pocket that any reasonable human would assume was a weapon. He admitted that he was the only person in the world who knew whether he in fact had a gun or not. After questioning Hamlin and explaining the entire indictment the circuit court asked Hamlin, “Did you commit that offense?” to which he replied, “Yes, sir.” At which point the circuit court explained the penalty and Hamlin entered a plea of guilty.

¶ 8. In Hughey v. State, 512 So.2d 4 (Miss.1987), the defendant did not visibly brandish the weapon during the course of the robbery, instead leaving the purported weapon concealed under his shirt where the robbery victim saw the outline of an object that resembled a gun. Hughey, 512 So.2d at 5. This physical sighting, combined with the defendant’s assertions as to the character of the item under his shirt (made contemporaneously to the victim and moments after the robbery to a third person), were found, acting in concert, to provide sufficient evidence to support an inference that the defendant was, in fact, armed. Id. at 6. In the case before us, we similarly have a visible bulge indicating an item concealed on Hamlin’s person together with his affirmative contemporaneous assertion that he was armed. Though it is unclear that Hamlin ever unequivocally admitted at the plea hearing that the bulge in his pocket was a deadly weapon, such an admission is not necessary to a guilty plea so long as the court is satisfied that the State has probative evidence tending to establish the essential elements of the crime.

¶ 9. “Admission of guilt is not a constitutional requirement for a guilty plea.” Reynolds v. State, 521 So.2d 914, 917 (Miss.1988). “What is required is an intelligent and voluntary plea and an independent evidentiary suggestion of guilt.” Id. In this case, the State outlined to the Court what it believed it could establish by the proof. Based on the above analysis, this proof was sufficient to establish that Hamlin was armed during the robbery. Though having initially denied that he was armed, Hamlin was given a thorough explanation of the elements of the crime and heard the State’s recitation of its proof, after which he affirmed his desire to enter a plea of guilty to armed robbery. Thus, we have both the necessary elements for a valid plea as set out in the Reynolds case.

II. DID HAMLIN RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 10. Hamlin claims that his defense counsel lied to the trial court, attempted to induce perjured testimony and gave up on the adversarial process. Hamlin fails to support his assertions with any factual basis or supporting affidavits.

¶ 11. A claim of ineffective assistance of counsel, in order to entitle the defendant to relief, requires both a showing of deficient performance and a showing that, but for the deficient performance, a different result would likely have resulted. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Donnelly v. State, 841 So.2d 207, 211(¶ 8) (Miss.Ct.App.2003). In order for Hamlin to prove the ineffective assistance of counsel claim, under Mississippi Code Annotated § 99-39-11(2) (Rev.2000), the allegation must be alleged with specificity. “[H]e must specifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the trial court decision would have been different.” Smith v. State, 434 So.2d 212, 219 (Miss.1983). See also Miss. Code Ann. § 99-39-9(l)(c) (Rev.2000); Terry v. State, 839 So.2d 543, 546(¶ 14) (Miss.Ct.App.2002).

¶ 12. We find that Hamlin has failed to meet his statutory burden of proof regarding the allegation of ineffective assistance of counsel in that his assertions lack the “specificity and detail” required to establish a prima facie showing. Hamlin fails to meet this burden of proof. Hamlin is required to show that counsel’s performance was deficient and that the defendant was prejudiced by counsel’s mistakes. Strickland, 466 U.S. at 686-87, 104 S.Ct. 2052. This issue is without merit.

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

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


author: KING, P.J.,

text:
    Andre LENOIR, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00328-COA.
    Court of Appeals of Mississippi.
    Aug. 19, 2003.

      Lesa Harrison Baker, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   KING, P.J.,

for the Court.

¶ 1. Andre Lenoir was found guilty in the Lincoln County Circuit Court of possession of at least 4.4 grams of cocaine with intent to distribute. He was sentenced to serve a term of twenty-four years in the custody of the Mississippi Department of Corrections, with this sentence to run consecutively to any other sentence imposed. Aggrieved by his conviction, Lenoir has appealed and raised the following issues:

I. Whether the trial court erred in denying Lenoir’s motion for judgment notwithstanding the verdict, or in the alternative, a new trial.

II. Whether the trial court erred in allowing a supervisor from the Mississippi Crime Lab to testify as to the report of another analyst who actually tested the substance in question.

FACTS

¶ 2. On October 9, 1999, at approximately 12:24 a.m., the Lincoln County Sheriffs Department was conducting a roadblock to check driver’s licenses. Lenoir was a passenger in the vehicle driven by Williard Breland, which approached the roadblock.

¶ 3. Officer Lance Falvey, a deputy sheriff with the Lincoln County Sheriffs Department, asked Breland for his driver’s license. Breland indicated that he did not possess a valid driver’s license. Upon noticing a bulge in Breland’s sock due to the way he was seated, Officer Falvey asked Breland what did he have in his sock. Breland stated that it was a socket. At the officer’s request, Breland handed the item to the officer, who noticed that the socket was packed with a screen, in one end. Officer Falvey indicated that in its altered form, this item is known on the street as a crack pipe. At Officer Falvey’s request, Breland stepped out of the car and was placed under arrest.

¶ 4. Once Breland was handcuffed, Officer Falvey instructed Lenoir “to place his hands on the dashboard of the car and not to move.” The officer asked Lenoir what was his name, but Lenoir did not respond. As the officer attempted to approach the passenger side, Lenoir slid into the driver’s seat, started the engine, and fled the scene. Officer Falvey followed Lenoir. After the pursuit, Lenoir wrecked the car and attempted to leave the scene on foot. After being apprehended, Lenoir was placed under arrest.

¶ 5. After capturing Lenoir, Officer Fal-vey and another officer approached the wrecked car and discovered “a large scattering of white rock like substance” over the entire front seat that was not seen in the vehicle at the roadblock. Officer Fal-vey testified that “the seats were very clean” when he looked into the car at the roadblock. At trial, Officer Falvey indicated that he did not know where the substance came from nor to whom it belonged.

¶ 6. In January 2000, Lenoir was indicted for possession of at least 4.4 grams of cocaine with intent to distribute.

¶ 7. At trial on September 29, 2000, Lenoir was found guilty and sentenced to twenty-four years in the custody of the Mississippi Department of Corrections, with this sentence to run consecutively to any other sentence and ordered to pay a fine and court costs.

ISSUES AND ANALYSIS

I.

Whether the trial court erred in denying Lenoir’s motion for judgment notwithstanding the verdict, or in the alternative, a new trial.

¶ 8. Lenoir asserts that the trial court erred in denying his motion for judgment notwithstanding the verdict, or in the alternative, a new trial.

¶ 9. In reviewing the denial of a motion for judgment notwithstanding the verdict, or in the alternative, a new trial, this Court adheres to the following:

The standard of review is the same for both directed verdicts and judgments notwithstanding the verdict. This Court has set forth the standard as follows:
Once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part that given the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty.
The motion for a new trial, however, is a different animal. As distinguished from a motion for directed verdict or a motion for judgment notwithstanding the verdict, a motion for a new trial asks that the jury’s guilty verdict be vacated on grounds related to the weight, not sufficiency, of evidence. “We will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand, would be to sanction an unconscionable injustice.” Furthermore, “the Supreme Court will reverse the lower court’s denial of a motion for new trial only if, by denying, the court abused its discretion.”

Sullivan v. State, 749 So.2d 983(¶¶ 24-25) (Miss.1999) (citations omitted).

¶ 10. In this case, Lenoir claims that the State failed to provide sufficient evidence that he possessed any dominion and control over the controlled substance beyond a reasonable doubt. He maintains that the vehicle did not belong to him nor to the driver and that the substance was not readily visible to him as a passenger. Lenoir asserts that the officers who testified could not say that the cocaine belonged to him because it was not found on his person. Lenoir suggests “that the force of the wreck of the vehicle caused the cocaine to become the ‘scattering’ that the officers found.”

¶ 11. A charge of drug possession may be based upon a showing of actual physical possession or constructive possession. Davis v. State, 817 So.2d 593(¶ 9) (Miss.Ct.App.2002). Constructive possession requires that:

[T]here must be sufficient facts to warrant a finding that defendant was aware of the presence of the particular substance and was intentionally and consciously in possession of it. It need not be actual or physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

Martin v. State, 804 So.2d 967(¶ 7) (Miss.2001) (citation omitted).

¶ 12. In this instance, the evidence shows (1) that Lenoir was a passenger in the vehicle, (2) when the officer looked into the vehicle at the roadblock, the front seat was clean, (3) when the officer approached the passenger side, Lenoir moved to the driver’s seat, started the engine, and attempted to flee, (4) that after Lenoir wrecked the vehicle, the officers found a white rock like substance scattered on the front seat, and (5) that upon being asked whether he used cocaine, Lenoir stated that he was a user, not a seller.

¶ 13. Accepting these facts as true, the jury could have reasonably found Lenoir to be in constructive possession of cocaine. Because there existed reasonable evidence upon which a jury could have found constructive possession, this Court finds no merit in this issue.

II.

Whether the trial court erred in allowing a supervisor from the Mississippi Crime Lab to testify as to the report of another analyst who actually tested the substance in question.

¶ 14. Lenoir asserts that the trial court erred in allowing the testimony of Monica Ardis from the Mississippi Crime Lab as to the report of another analyst who actually tested the substance in question. .

¶ 15. Ms. Ardis was recognized as an expert witness pursuant to Mississippi Rule of Evidence 702 in the field of forensic science specializing in substance identification. The trial court indicated that pursuant to Mississippi Rule of Evidence 703, experts are allowed to base their opinion on things reasonably used by them to form these opinions. Ardis testified that she was a supervisor in the drug analysis unit and that she trained Felicia Hobson, an ex-employee of the Mississippi Crime Lab who actually conducted the substance tests. Ardis indicated that she reviewed all of Ms. Hobson’s data. Lenoir raised an objection to Ardis’ testimony, stating that “Ms. Ardis did not conduct the chemical analysis, is not the person who conducted the drug test.” The objection was overruled.

¶ 16. The State relied on Gray v. State, 728 So.2d 36(¶¶ 88-85) (Miss.1998), which allowed DNA supervisors who qualified as experts to testify regarding test results conducted by others in the lab. In the present case, the trial court recognized Ardis as an expert witness, who was an employee of the Mississippi Crime Lab at the time the test was performed. Ms. Ardis trained the former employee that performed the actual tests and supervised the former employee’s work “on a regular basis.” The trial court determined that Ardis’ testimony would be based on “the machine’s reading and the notes of the analyst,” and was therefore admissible pursuant to Mississippi Rule of Evidence 703.

¶ 17. The admissibility and relevancy of the evidence are within the discretion of the trial court and, absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal. McCoy v. State, 820 So.2d 25(1115) (Miss.Ct.App.2002). This Court has previously held that such testimony is admissible under these circumstances. Byrd v. State, 741 So.2d 1028(¶¶ 22-23) (Miss.Ct.App.1999). Therefore, this Court finds that the trial court has not abused its discretion in allowing Ardis’ testimony.

¶ 18. This Court notes that after trial, the jury returned a verdict of guilty. The court then proceeded to dictate the sentence into the record, which read, “I hereby sentence you to a term of twenty-four (24) years in the custody of the Mississippi Department of Corrections, direct that you pay a fine of $5,000.00 and pay court costs. This will run consecutively to any other sentence.”

¶ 19. A formal sentencing order was entered on October 2, 2000, which provided, “[c]ame the district attorney who prosecutes for the state and the defendant, in his own and proper person and represented by counsel, who entered a plea of guilty on a former day of this regular term to a charge of possession of at least 4.4 grams of cocaine with intent to distribute and being placed before the bar of the court and asked if he had anything to say why sentence of the law should not be pronounced against him and he says naught. It is therefore considered by the court and so ordered and adjudged that the said defendant for such his crime of possession of at least 4.4 grams of cocaine with intent to distribute be sentenced into the custody of the Mississippi Department of Corrections for and during a space of twenty-four (24) years. This sentence will run consecutive to any other sentence given.” On March 25, 2002, this order was corrected to show that Lenoir was convicted by a jury rather than having entered a plea of guilty.

¶ 20. The corrected sentencing order entered nunc pro tunc March 25, 2002, provided, “[c]ame the district attorney who prosecutes for the state and the defendant in his own proper person and represented by counsel, who on a former day of this term of circuit court was found guilty by a jury of the charge of possession of at least 4.4 grams of cocaine with intent to distribute. It is therefore ordered and adjudged that the said defendant for such his crime of possession of at least 4.4 grams of cocaine with intent to distribute be sentenced into the custody of the Mississippi Department of Corrections for and during the space of twenty-four (24) years. This sentence will run consecutive to any other sentence given.”

¶ 21. We know of no authority which authorized the trial judge to enter an amended judgment in a criminal case approximately eighteen months after the entry of the original sentencing order. The trial court’s action in this case was benign, intending only to correct the sentencing order to reflect that Lenoir had not pled guilty as stated in the original sentencing order, but instead was convicted after a jury trial. There was nonetheless, no authority which we have seen to allow this action on such a tardy basis. We note however, that while there is no apparent authority for such action, it had no substantive impact on the sentence received by Lenoir or the disposition of this case.

¶ 22. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE AND SENTENCE OF TWENTY-FOUR YEARS TO BE SERVED CONSECUTIVELY TO ANY OTHER SENTENCE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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

      . Mississippi Rule of Evidence 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

      . Mississippi Rule of Evidence 703 provides: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.