author: CHANDLER, J., KING, P.J.,

text:
    Matthew REED, Appellant, v. Gloria REED, Appellee.
    No. 2001-CA-01363-COA.
    Court of Appeals of Mississippi.
    March 4, 2003.

      Marvin E. Wiggins, DeKalb, attorney for appellant.
    Helen J. McDade, DeKalb, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. This is a divorce action brought by Gloria Reed against Matthew Reed on the grounds of habitual, cruel and inhuman treatment or, in the alternative, irreconcilable differences. The chancellor granted her a divorce on the grounds of habitual, cruel and inhuman treatment. Feeling aggrieved, Matthew appeals. He first argues that the chancellor created manifest error by incorrectly assessing the facts when granting Gloria a divorce on the grounds of habitual, cruel and inhuman treatment. Secondly, he states the chancellor erred in not considering all the factors in Armstrong before granting periodic alimony. Finally, he contends that the chancellor erred in not considering all of the Ferguson factors before dividing the marital assets. We find the chancellor manifestly in error in granting the divorce on grounds of habitual, cruel and inhuman treatment. Finding the first issue disposi-tive, it is not necessary to respond to the other asserted issues. Accordingly, we reverse.

FACTS

¶ 2. Gloria and Matthew Reed were married in Kemper County, Mississippi on February 25, 1981, and separated September 27, 1999. They have two children, Gregory Little who is 25, and Stella Monique Reed who is 16. On August 18, 2000, Gloria filed for divorce upon the statutory ground of habitual, cruel and inhuman treatment pursuant to Mississippi Code Annotated Section 93-5-1 (Rev. 1994).

113. Gloria claimed that for the last two months of her nineteen year marriage to Matthew she had been physically and emotionally abused. Gloria stated that up until those last two months they had a “good relationship” and that Matthew was a “good husband” and a “good father.” She also testified that during this time Matthew began having affairs. She specifically accused him of being romantically involved with the next door neighbor based on seeing them talking in the yard. Matthew denied any such adulterous involvement, stating that he had merely helped the neighbor fix a lawnmower. He also made an accusation that Gloria was the one engaged in an affair.

¶ 4. Gloria cited to one specific incident of physical violence. Throughout her testimony she indicated four different dates as to when this alleged incident took place (August 1999, July 1999, the first Sunday in August 1999, and the day before Labor Day). She testified that the episode occurred when Matthew attempted to leave the house with the couple’s bank records or checkbook. Gloria stated she grabbed Matthew’s arm and asked him what he was doing. She testified that Matthew then shoved her across the bed, cursed her and began to choke her. She said her son came into the room and physically removed Matthew from the room.

¶ 5. Their daughter Stella was the only person to testify other than Gloria and Matthew. Stella said she witnessed the choking incident, and said her parents fought regularly. She described these fights as a “lot of screaming and stomping and stuff.” Stella stated that sometimes these fights turned physical. Stella said she witnessed her father push her mother several times and saw him slap her mother on one occasion.

¶ 6. Matthew denied being physically abusive to Gloria at any time. His version of the choking incident was that when he went to get the bank book Gloria grabbed his arm, demanded to know where he was going and ripped his shirt sleeve. He stated that this incident occurred after Gloria had accused him of being involved with the neighbor. Matthew testified that Gloria several times attacked him by scratching and tearing his clothes. He also stated Gloria charged at him with a butcher knife on numerous occasions.

¶ 7. Gloria also accused Matthew of emotional abuse. She said Matthew, his brother and sister-in-law conspired to drive her from the marital home by performing “mean tricks.” These mean tricks she stated included “voodoo.” Her conclusion that voodoo was being performed in her house was based on the fact that strange smells were being emitted throughout the house. However, she admitted that she did not know what the practice of voodoo entailed and said she did not believe in voodoo. She stated that Matthew engaged in these activities in order to advance his romantic involvement with the neighbor. Gloria also alleged that her sister-in-law, Mary Lou Reed, plotted these evil tricks because she was jealous of her good marriage.

¶ 8. Gloria testified that Matthew emotionally abused her using verbal attacks. She said he threatened to “blow her head off’ if he caught her passing the house. She also stated that Matthew verbally abused Gloria’s mother. Gloria claimed that Matthew would not sleep with her and that he placed a lock on the family’s food to prevent her from eating, and that he burned her clothes she left at the marital home. Matthew denied all of these allegations.

¶ 9. In the daughter’s testimony she stated that she was not sure if voodoo had been practiced in their home. However, Stella testified to noticing strange smells throughout the house. As to verbal abuse, Stella first said she heard her father threaten to kill her mother only one time. She then recanted her statement and said she heard her father threaten Gloria’s life several times.

¶ 10. Gloria testified that she left the marriage because she feared for her life. She stated that those two months of abuse nearly caused her to have a nervous breakdown. She said she suffered from high blood pressure and a “bad heart.” Gloria said after the separation she made several attempts to reconcile with Matthew but he was unwilling.

¶ 11. In August 2000, Gloria filed for divorce based on habitual, cruel and inhuman treatment and, in the alternative, irreconcilable differences. The chancellor granted a divorce on the grounds of habitual, cruel and inhuman treatment. He stated that the wife and child’s testimony of multiple assaults and multiple threats to kill were enough to entitle her to a divorce. The chancellor awarded custody of Stella to Gloria and awarded visitation rights to Matthew. Matthew was ordered to pay $285 per month in child support and $200 in alimony.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN AWARDING GLORIA REED A DIVORCE ON THE GROUND OF HABITUAL, CRUEL AND INHUMAN TREATMENT.

¶ 12. Matthew argues that the chancellor abused his discretion by granting Gloria a divorce on the grounds of habitual, cruel and inhuman treatment because it was granted based upon incorrect or inaccurate findings of fact. Matthew contends that the court’s findings indicate Gloria testified to multiple acts of violence. He asserts that Stella, the daughter, is the only one who alleged that her father had slapped her mother on a separate occasion. Matthew points out that Gloria never testified to this event. He then argues that even if the one choking event occurred, that single act alone is insufficient grounds for a divorce. He also states that the other alleged incidences involving “mean tricks,” name-calling, and voodoo do not arise to the level of proof required to establish cruelty.

¶ 13. “This Court will not reverse a chancellor’s decree of divorce unless it is manifestly wrong as to law or fact.” Chamblee v. Chamblee, 637 So.2d 850, 859 (Miss.1994). “The chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility of witnesses and the weight of their testimony.” Id. While the chancellor’s determinations of the events that preceded the divorce are findings of fact, his finding that Matthew’s conduct constitutes habitual, cruel and inhuman treatment is a determination of law. Potts v. Potts, 700 So.2d 321, 322 (¶ 10) (Miss.1997). To obtain a divorce on the grounds of habitual, cruel and inhuman treatment, a petitioner must prove by a preponderance of the evidence, acts which constitute such treatment. Chamblee, 637 So.2d at 859. It is reversible error where the chancellor has employed an erroneous legal standard. Potts, 700 So.2d at 322 (¶ 10).

¶ 14. The test for the fault-based grounds of divorce of habitual, cruel and inhuman treatment was set out in 1930 by Russell v. Russell, 157 Miss. 425, 430, 128 So. 270, 272 (1930). The Mississippi Supreme Court held that the conduct must be so unkind, unfeeling or brutal as to endanger, or put one in reasonable apprehension of danger to life, limb or health. Id. In Wilson v. Wilson, 547 So.2d 803, 805 (Miss.1989), the court held that this conduct must be done so “often that it may reasonably be said a permanent condition.”

¶ 15 Prior to the legislature’s addition of irreconcilable differences as a ground for divorce in 1978, the court’s interpretation of the definition of cruelty was construed liberally. Fournet v. Fournet, 481 So.2d 326, 328 (Miss.1985). Divorces were often granted on grounds closer to irreconcilable differences than cruelty. Id. In Marble v. Marble, 457 So.2d 1342, 1343 (Miss.1984) the court announced a clear return to a more stringent standard. The court ruled that the cruelty required is not such as “merely to render the marriage undesirable or unpleasant, but impossible except at the risk to life and limb or health, must be real rather than imaginary, and must be clearly established by the proof.” Id.

¶ 16. The facts alleged by Gloria as constituting habitual, cruel and inhuman treatment are as follows. According to Gloria in the last two months of her marriage, Matthew: 1) choked her, 2) called her dirty names, 3) engaged in affairs, 4) threatened to kill her, 5) played mean tricks on her including voodoo, 6) would not sleep with her, 7) locked up the family’s food, 8) burned her clothes, and 9) verbally attacked her mother. Matthew testified that he never physically or emotionally abused his wife. He stated that these were all false accusations and these accusations arose after Gloria accused him of having an affair with the next door neighbor. He testified that Gloria was the one who was physically abusive. He said he believed she was the one who was having an affair.

¶ 17. Case law indicates that it is crucial for the chancellor to look not only at the offending spouse’s conduct but also at the impact made on the plaintiff spouse. Mitchell v. Mitchell, 823 So.2d 568, 571 (¶ 9) (Miss.Ct.App.2002). Thus, the Court must employ a subjective standard. Furies v. Faries, 607 So.2d 1204, 1209 (Miss.1992). Physical violence in the marriage does not create a per se ground for a divorce under habitual, cruel and inhuman treatment. Mitchell, 823 So.2d at 571 (¶ 9).

¶ 18. In Wilbourne v. Wilbourne, 748 So.2d 184, 187(115) (Miss.Ct.App.2000), this Court affirmed the chancellor’s ruling that a petition for divorce based on cruelty should be denied. The Court held that the evidence of the couple’s arguments which occasionally included physical violence was insufficient to prove cruelty. Id. In Stennis v. Stennis, 464 So.2d 1161, 1161 (Miss.1985), the chancellor ruled in favor of the wife for a divorce based on cruel and inhuman treatment. The chancellor based his decision on the fact that the husband had slapped his wife, had put her in a hammerlock, and had once washed out her mouth with soap. Id. Notwithstanding this finding, this Court ruled the conduct was not sufficiently cruel or inhuman. Id.

¶ 19. “Physical violence or threats of physical violence are not necessary to prove habitual cruel and inhuman treatment.” Mitchell, 823 So.2d at 571(¶ 9). The conduct may be in the form of emotional abuse; however, it must be more than mere “unkindness, rudeness, or incompatibility.” Brooks v. Brooks, 652 So.2d 1113, 1124 (Miss.1995). Emotional abuse must fall more along the lines of habitual ill-founded accusations, insults and threats. Holladay v. Holladay, 776 So.2d 662 (¶ 64) (Miss.2000).

¶20. In Bullock v. Bullock, 699 So.2d 1205, 1210 (¶ 19) (Miss.1997), the Mississippi Supreme Court found sufficient evidence of cruelty where the husband kept a calendar on the refrigerator indicating when the couple had intercourse and drank heavily and became abusive while drinking. In Potts, 700 So.2d at 323 (¶ 13), the court reversed the chancellor’s finding of habitual, cruel and inhuman treatment. Mrs. Potts proved that when her husband did not “get his way,” he would move out of the bedroom and sleep in another room. Id. at 322 (¶ 2). She stated that his storming out of the bedroom and returning when he was ready to have sex hurt her emotionally. Id. at (¶ 3). In addition, he grabbed her once and demanded to know whether she intended to have sex with him. Id. at (¶ 4). Emphasizing that cruelty requires more than unkindness or rudeness or incompatibility, the court reversed the trial court’s decision. Id. at 323 (¶ 12).

¶ 21. As a general rule the charge of cruel and inhuman treatment must be founded on conduct that is continuous and not based on one isolated incident. Ellzey v. Ellzey, 253 So.2d 249, 250 (Miss.1971). However, where that one incident is of such “a violent nature as to endanger the life of the complainant spouse” then the court will recognize the evidence as sufficient to establish cruel and inhuman treatment. Id. For example, the conduct described in Ellzey rises to the level required for establishing cruelty even though the abuse was limited to two incidences. Id. Mrs. Ellzey filed for divorce under the ground of cruel and inhuman treatment after her husband commenced to shoot at her after accusing her of stealing twenty dollars from his pocket. Id. Her case was also strengthened by the fact that twenty-five years before, Mr. Ellzey had hit her with a shovel causing injuries. Id.

¶ 22. In the course of a nineteen-year marriage, Gloria cites to one isolated physical attack and verbal threat. All of her other accusations such as Matthew’s mean tricks, name-calling, and refusal to sleep with her, fall more in the categories of mere unkindness, rudeness, and incompatibility. The conduct alleged by Gloria, even if true, does not rise to the necessary level to prove cruelty.

¶23. Whether the conduct imposed by the offending spouse warrants a divorce for cruelty depends on the conduct’s effect on the suffering spouse. Mitchell, 828 So.2d at 571 (¶ 9). The negative impact upon the complaining spouse may be to their physical or mental health. Rakestraw v. Rakestraw, 717 So.2d 1284, 1288 (¶ 11) (Miss.Ct.App.1998). In Bullock, 699 So.2d at 1210 (¶20), the court emphasized Mrs. Bullock’s medical condition. She was hospitalized for depression and had attempted suicide. Id. at (¶ 19). She also went through counseling and had bouts with hyperventilation, high blood pressure, and stomach problems as a result of her unhappiness with the marriage and her husband’s demeaning behavior. Id. In Potts, 700 So.2d at 323 (¶ 13), the court, in reversing the trial court’s decision, stressed that Mrs. Potts never sought treatment for the emotional problems she allegedly suffered.

¶ 24. Gloria testified that she “almost” had a nervous breakdown due to the stress endured during the last two months of her marriage. However, she never indicated that she received any treatment. She also testified that she was unhealthy due to high blood pressure and a “bad heart;” yet, she submitted no medical evidence that these alleged health problems arose due to Matthew mistreating her.

¶ 25. Mississippi rules require that “[i]n all uncontested divorce cases, except irreconcilable differences, the testimony of the Plaintiff must be substantially corroborated.” Unif. Chan. Ct. R. 8.03.

The corroborative evidence will be sufficient if it proves such substantial facts and circumstances as will serve to engender in a sound and prudently cautious mind a confident conclusion that the testimony of the complainant is true in all essential particulars, and is not the exaggerated product of those wishful mental processes which passion and the consuming present desire for the relief prayed, so often present in this type of cases.

Anderson v. Anderson, 190 Miss. 508, 513, 200 So. 726, 728 (1941).

¶ 26. In addition to Gloria’s testimony, Stella testified that she witnessed the choking incident and said her father had once slapped Gloria. However, Gloria testified that the physical abuse was limited to the one choking incident. Stella first said Matthew threatened Gloria’s life only one time. She then changed her statement and said he had done it multiple times. Gloria’s testimony only referred to one incident of a verbal attack.

¶ 27. We find insufficient evidence to support the trial court’s granting a divorce on the ground of habitual, cruel and inhuman treatment and are therefore compelled to reverse and vacate that decree.

¶ 28. THE JUDGMENT OF THE CHANCERY COURT OF KEMPER COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

McMILLIN, C.J., AND SOUTHWICK, P.J., THOMAS, AND MYERS, JJ., CONCUR. KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES AND LEE, JJ. IRVING AND GRIFFIS, JJ., NOT PARTICIPATING.

KING, P.J.,

dissenting:

¶ 29. With due regard for the majority opinion, I dissent. Under the guise of deciding a question of law, the majority opinion is really re-weighing the evidence, and substituting its judgment for that of the chancellor.

¶ 30. In granting the divorce, the chancellor stated:

As to the divorce, there is a conflict in the evidence. The wife and child testified as to his cruelty to her. He denies this. There are no other witnesses testifying on the subject. The wife and child both testified to multiple assaults by Mr. Reed on Mrs. Reed and to him having made multiple threats to kill her. With that evidence I find that she is entitled to a divorce on the grounds of habitual cruel and inhuman treatment.

¶ 31. “Habitual cruel and unusual treatment is defined as conduct that (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the offended party, (2) is so unnatural and infamous as to make the marriage revolting to the offended spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.” Bodne v. King, 835 So.2d 52 (¶ 20) (Miss.2003); Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993); Gardner v. Gardner, 618 So.2d 108, 113-14 (Miss.1993); Raws on v. Buta, 609 So.2d 426, 431 (Miss.1992).

¶ 32. The chancellor noted the conflicts in testimony, but resolved the issue of credibility in favor of Mrs. Reed and her daughter, and accepted as fact their testimony of habitual cruel and inhuman treatment.

¶ 33. Mrs. Reed testified that (1) Mr. Reed physically assaulted her on several occasions, (2) Mr. Reed threatened to kill her on several occasions, (3) she was afraid of him, (4) he was verbally abusive, and (5) these types of conduct, combined with other actions over a period of several months, almost caused her to have a nervous breakdown and made it impossible for her to stay with him and maintain a marital relationship.

¶ 34. The daughter, Stella Reed, gave testimony consistent with that of Mrs. Reed.

¶ 35. Stella testified that Reed (1) choked her mother, (2) slapped her mother, (3) fought with her mother on several occasions and (4) threaten to kill her mother on several occasions.

¶ 36. The testimony of Mrs. Reed and Stella is sufficient to demonstrate a pattern of conduct by Mr. Reed toward Mrs. Reed, which (1) endangered life, limb or health and created a reasonable apprehension of such danger rendering the relationship unsafe for Mrs. Reed, and (2) was so unnatural and infamous as to make the marriage revolting to Mrs. Reed and rendered it impossible for her to discharge the duties of marriage thus destroying the basis for its continuance. That is how the Mississippi Supreme Court defined habitual cruel and inhuman treatment on January 23, 2003, in Bodne v. King, supra at (¶ 20) in a decision reversing this Court’s setting aside the grant of an habitual cruel and inhuman treatment divorce.

¶ 37. Because I believe Mrs. Reed met the standard stated in Bodne, I would affirm the grant of an habitual cruel and inhuman treatment divorce.

BRIDGES AND LEE, JJ„ JOIN THIS SEPARATE OPINION.


source: Caselaw Access Project

author: LEE, J.,

license: Public Domain

text:
    Terry GREEN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01717-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.
    Terry Green, pro se, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Terry Green pled guilty to the charges of manslaughter and aggravated assault in the Madison County Circuit Court. On March 20, 1997, the judgment of conviction was entered, and Green was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections for the manslaughter charge and five years for the aggravated assault charge, with the sentences to run consecutively. Green contends that he filed a motion for a review of sentence with the Madison County Circuit Court on June 26, 1998, and that the motion was later denied and Green did not appeal the denial. However, the record contains neither the motion nor the denial of that motion by the Circuit Court. The record' also lacks a transcript of the guilty plea, a transcript of the sentencing hearing, and Green’s supporting affidavits.

¶ 2. On June 6, 2000, Green filed a motion, which he had signed on May 24, 2000, to vacate and set aside the guilty plea and sentence. This motion was denied as time-barred on September 25, 2001, by the Madison County Circuit Court. Green then perfected his appeal to this Court asserting the following issues: (1) the trial court erred in dismissing his motion pursuant to Miss.Code Ann. § 99-39-5(2) because the statute was tolled upon the earlier filing of his motion of review of sentence; (2) there was not an adequate factual basis for the court to accept his plea of guilty; (3) he did not knowingly and voluntarily enter his guilty plea; (4) the trial court failed to consider all the available evidence at the sentencing hearing; (5) his constitutional rights were violated at the plea hearing because there were distractions in the courtroom; and (6) he is entitled to an evidentiary hearing because there is no transcript of his guilty plea. Finding that Green’s motion for post-conviction relief is time-barred, we decline to discuss the issues and, therefore, we affirm the trial court’s ruling.

DISCUSSION OF ISSUES

¶ 3. In reviewing a trial court’s denial of post-conviction relief, our standard of review is well stated. We 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. Pace v. State, 770 So.2d 1052(¶ 4) (Miss.Ct.App.2000).

I. WHETHER THE TRIAL COURT ERRED IN DENYING GREEN’S MOTION FOR POST-CONVICTION RELIEF PURSUANT TO MISS. CODE ANN. § 99-39-5(2)?

¶4. With his first issue, Green claims that the three-year statute of limitations under Miss.Code Ann. § 99-39-5(2) was tolled upon the earlier filing of his motion for review of sentence. However, this issue was raised for the first time on direct appeal and, therefore, the issue is barred. Miss.Code Ann. § 99-39-21(2) (Rev.2000).

¶ 5. If Green’s earlier motion was, in fact, a post-conviction relief request, which we believe it was, then the present issue would also be considered a successive petition. Under Miss.Code Ann. § 99-39-23(6) (Rev.2000), all successive petitions are barred if a petitioner has filed a previous post-conviction relief motion.

¶ 6. Regardless of the issues bar and successive pleadings bar, Green’s present motion is time-barred. According to Miss.Code Ann. § 99-39-5(2) (Rev. 2000), “a motion for relief under this chapter shall be made ... in case of a guilty plea, within three (3) years after entry of the judgment of conviction.” The judgment of conviction was March 20, 1997, and Green’s motion was filed June 6, 2000, more than three years after his guilty plea. Therefore, Green’s motion for post-conviction relief is time-barred and we decline to address his remaining issues.

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

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


author: CHANDLER, J.,

text:
    Howard TURNER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00871-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.
    Howard Turner, pro se, attorney for appellant.
    Office of the Attorney General, by Billy L. Gore, attorney for appellee.

      Before KING, P.J., THOMAS AND CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. Howard Turner appeals the denial of his motion for post-conviction relief. We find his arguments to be without merit, and affirm.

FACTS

¶ 2. On April 20, 1998, Turner was indicted by a Hinds County grand jury for three offenses: house burglary, possession of amphetamine and possession of crystal methamphetamine. Turner pled guilty. The judge on May 5, 1998, sentenced Turner as follows: (1) for the crime of house burglary, the defendant was sentenced to twenty-five years’ imprisonment with ten years suspended and five years on supervised probation; (2) for the crime of possession of amphetamine, Turner was sentenced to three years; and (3) for the crime of crystal methamphetamine, Turner was sentenced to three years. The three sentences were imposed to run concurrently as opposed to consecutively.

¶ 3. On December 13, 2000, Turner filed a motion for post-conviction relief claiming his conviction was unenforceable because he was indicted, and convicted for house burglary under a repealed statute, Miss. Code Ann. § 97-17-19 (repealed 1996). On June 13, 2001, Turner filed a writ of mandamus moving the court to rule on his post-conviction relief motion. The court dismissed his motion because the motion did not specify the proper judicial district and lacked a cause number.

¶ 4. Turner filed a revised motion on July 17, 2001. In his amended motion he made the necessary corrections and added to his petition the issue of ineffective assistance of counsel. On February 26, 2002, Turner filed a writ of mandamus again moving the court to rule on his motion. On April 18, 2002, the court denied his petition holding that it was time barred according to the three-year statute of limitations which apply to post-conviction relief motions. It is from this denial that Turner now appeals.

STANDARD OF REVIEW

¶ 5. This Court in review of a post-conviction relief motion “will not disturb the factual findings of the trial court unless clearly erroneous.” Newman v. State, 820 So.2d 768, 769(¶ 3) (Miss.Ct.App.2002).

LAW AND ANALYSIS

I. WAS TURNER’S MOTION FOR POST-CONVICTION RELIEF TIME-BARRED?

¶ 6. Both parties are in agreement that the trial court was in error to hold that Turner’s motion was time barred.

¶ 7. If a petitioner for post-conviction relief pleads guilty, he must file the PCR motion within three years of the judgment of conviction. Miss.Code Ann. § 99-39-5(2) (Supp.2002). The statute lists four exceptions to this three-year limitation, none of which apply to Turner’s case.

(1) cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would adversely affect the outcome of his conviction or
(2) [cases in which he has new] evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.
(3) ... cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.
(4) ... capital cases which shall be made within one (1) year after conviction.

Id.

¶ 8. The record reflects that Turner filed his original petition for post-conviction relief almost five months before the three-year statute of limitations had run. While a motion is pending, the statute of limitations is suspended until further ruling by the court. See Laushaw v. State, 791 So.2d 854(¶ 12) (Miss.Ct.App.2001) (holding the petitioner’s post-conviction relief motion to be “pending and viable” even though the court failed to rule on it until the petitioner amended the motion five years later).

¶ 9. Between the time of Turner’s initial post-conviction relief filing on December 18, 2000, and the court’s ruling on June 20, 2001, the statute of limitations was tolled. The court’s ruling which dismissed the motion without prejudice commenced the running of the statute of limitations again. Turner filed within one month of the court’s ruling. Turner’s amended motion therefore was within the required statutory time period. The trial court’s ruling on April 18, 2002, that Turner’s petition was time barred was erroneous.

II. IS TURNER’S CONVICTION ENFORCEABLE CONSIDERING THE COURT USED A REPEALED STATUTE?

¶ 10. “In 1996, several Mississippi statutes were repealed, including § 97-17-19, § 97-17-21 and § 97-17-27.” Terry v. State, 755 So.2d 41, 43(116) (Miss.Ct.App.1999). “In their places, the legislature introduced a revised § 97-17-23 which combined these all into one section.” Id. In the case at bar, the trial court indicted and convicted Turner under the repealed statute § 97-17-19.

f 11. The old statute reads as follows: Every person who shall be convicted of breaking and entering any dwelling house, in the day or night, with intent to commit a crime, shall be guilty of burglary, and be imprisoned in the penitentiary not more than ten years.

Miss.Code Ann. § 97-17-19 (repealed 1996).

¶ 12. The new statute reads as follows: Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by imprisonment in the Penitentiary not less than three (3) years nor more than twenty-five (25) years.

Miss.Code Ann. § 97-17-23 (Rev.2000).

¶ 13. Turner claims that the trial court lacked proper jurisdiction because it cited the repealed statute. He concludes that his sentence is unenforceable. He argues that he should receive no more than ten years as required by the repealed statute Miss.Code Ann. § 97-17-19.

¶ 14. Mississippi case law indicates that providing the incorrect statute number on an indictment or in a judgment order does not make the conviction per se void. Lewis v. State, 797 So.2d 248, 251(¶ 9) (Miss.Ct.App.2001); Terry, 755 So.2d at 43(¶ 7). “The mere error in writing the statute incorrectly [is] of ‘form’ rather than of ‘substance’ and not reason enough to grant ... an evidentiary hearing on [the] matter.” Id. This mistake is “harmless error.” Lewis, 797 So.2d at 251 (¶ 9).

III. WAS TURNER’S PLEA MADE INVOLUNTARILY UNKNOWINGLY AND UNINTELLI-GENTLY?

¶ 15. Turner also claims that he would not have pled guilty if he had known the correct statute number. The United States Supreme Court has held that a guilty plea must be freely and voluntarily entered. Boykin v. Alabama, 395 U.S. 238, 241, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). “A plea will only be deemed voluntary if the defendant has been advised of and understands his rights, the charges against him, and the potential penalties that could be imposed.” Burnett v. State, 831 So.2d 1216, 1219(¶9) (Miss.Ct.App.2002).

¶ 16. In Turner’s petition to plead guilty he acknowledged with his signature that he knew if he pled guilty to the charge of house burglary that he could receive a maximum sentence of twenty-five years’ imprisonment. He further affirmed in his plea agreement that he knew the district attorney was going to i-ecommend sentencing him to twenty-five years’ imprisonment with ten years suspended. Turner has failed to show that he did not understand his rights, the charges against him or the penalty that could be imposed. This issue is without merit.

IV. DID TURNER RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 17. To succeed on the issue of ineffective assistance of counsel, Turner must show that, “counsel’s performance was deficient and that he was prejudiced by counsel’s mistakes.” Newman, 820 So.2d at 769(¶ 5) (citing Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). A rebuttable presumption exists that “counsel’s conduct falls within a wide range of reasonable professional assistance.” Id. Turner must “demonstrate that but for counsel’s errors, the outcome of his trial would have been different.” Id.

¶ 18. Turner asserts that he never would have pled guilty had his attorney advised him of the erroneous statute. Again the record indicates by Turner’s signature that he understood the penalties which applied to the charges against him. It clearly states in his plea agreement that the maximum penalty for house burglary is twenty-five years. We have already concluded that citing to the wrong statute number constitutes harmless error. We therefore conclude that Turner was not prejudiced by his attorney’s failure to indicate the statutory error in the indictment and sentencing order.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY DISMISSING WITH PREJUDICE THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


text:
    Marvin EDWARDS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01915-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.

      Marvin Edwards, pro se, attorney for appellant.
    Office of the Attorney General, by Jeffrey A. Klingfuss, attorney for appellee.
    Before MCMILLIN, C.J., THOMAS AND CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. Marvin Edwards, pro se, appeals the dismissal of his motion for post-conviction relief from a 1991 robbery conviction.

FACTS

¶ 2. Edwards was convicted three times in the Circuit Court of Humphreys County. On August 11, 1984, Edwards pled guilty to rape and was sentenced to ten years in the custody of the State Department of Corrections. On July 18, 1991, Edwards pled guilty to robbery and was sentenced to fifteen years in the custody of the Mississippi Department of Corrections, with the last seven years suspended. On February 27, 1996, Edwards pled guilty to robbery and was sentenced as a habitual offender to fifteen years in the custody of the Mississippi Department of Corrections.

¶3. On September 20, 2001, Edwards filed a motion for post-conviction relief pertaining to the 1991 conviction. Edwards contended that the partially suspended sentence was illegal, violated his fundamental right of freedom from an illegal sentence, and could not be used to enhance his 1996 sentence. The trial court denied the motion as time barred pursuant to Miss.Code Ann. § 99-89-5(2) (Rev. 2000).

LAW AND ANALYSIS

¶ 4. The right of freedom from an illegal sentence is a fundamental right. Luckett v. State, 582 So.2d 428, 430 (Miss.1991). We review Edwards’ claims because, as a general rule, the time bar does not preclude review of a motion seeking relief from an illegal sentence. Ivy v. State, 731 So.2d 601, 603 (¶ 13) (Miss.1999). Edwards correctly argues that the partially suspended sentence was illegal. This Court has consistently held that Mississippi Code Annotated § 47-7-33 prevents a trial court from wholly or partially suspending the sentence of a defendant convicted of a felony on a previous occasion. See Cooper v. State, 737 So.2d 1042, 1045 (¶ 11) (Miss.Ct.App.1999) (citing Robinson v. State, 585 So.2d 757, 759 (Miss.1991)). See also Goss v. State, 721 So.2d 144 (¶ 12) (Miss.1998) (overruled on other grounds) (holding that defendant was not entitled to partially suspended sentence as a previously convicted felon).

¶ 5. The case sub judice parallels Chancellor v. State, 809 So.2d 700, 701(¶3) (Miss.Ct.App.2001). In Chancellor, the defendant was convicted of armed robbery and sentenced as a habitual offender. Chancellor filed an untimely motion for post-conviction relief from one of his underlying convictions. Id. at (¶ 4). He argued that he had received an illegal sentence in the underlying conviction because, as a prior felon, he was ineligible for a suspended sentence. Id. at (¶ 6). Chancellor argued that, because of the illegal sentence, the trial court erred by using the underlying conviction to enhance his armed robbery sentence. Id. at (¶ 4). This Court found that Chancellor’s challenge to the underlying conviction had no merit because Chancellor enjoyed a sentence that was illegally lenient, and only challenged the sentence when it was used to his detriment to enhance his sentence for a later crime. Id. at (¶ 8).

¶ 6. This Court revisited this issue in McGleachie v. State, 800 So.2d 561 (Miss.Ct.App.2001). In McGleachie, the defendant was convicted of possession of cocaine and sentenced as a habitual offender. Id. at (¶ 2). McGleachie filed an untimely motion for post-conviction relief from one of his underlying convictions. Id. McGlea-chie argued that the suspended sentence he received in the underlying conviction was illegal because, as a prior felon, he was ineligible to receive a suspended sentence. Id. at (¶ 3). This Court found that McGleachie’s fundamental right of freedom from an illegal sentence was not violated by what amounted to harmless error in the form of an illegally lenient sentence that went unchallenged until after McGleachie’s later conviction. Id.

¶ 7. In the instant case, Edwards was convicted and sentenced as a habitual offender. He now challenges one of his underlying convictions by arguing that the illegal partially suspended sentence he received in the conviction violated his fundamental right. As in Chancellor and McGleachie, Edwards received a sentence that was more lenient than the sentence to which he was actually entitled. As in Chancellor and McGleachie, Edwards enjoyed the benefits of an illegally lenient sentence and only challenged the sentence when the underlying conviction was used to enhance his sentence for a subsequent crime. We find that the illegal sentence did not violate Edwards’ fundamental right.

¶ 8. In a recent Mississippi Supreme Court decision, it was ruled that, generally, an illegal sentence causes the defendant prejudice. Robinson v. State, 836 So.2d 747 (¶¶ 3-5) (Miss.2002). Robinson was indicted for sexual battery as a habitual offender. Id. at (¶ 6). He successfully negotiated a plea agreement to enter a plea of guilty as a non-habitual offender even though he had a prior felony conviction. Id. Robinson was given a twenty-year suspended sentence by the trial court. Id. at (¶ 9). Robinson’s suspended sentence was revoked, and Robinson moved for post-conviction relief on the ground that, as a prior felon, the suspended sentence was illegal. Id. at (¶ 3). The motion was denied. Id. On appeal, this Court found that, because Robinson received a lighter sentence than he was actually entitled to receive, he suffered no prejudice, and thus his fundamental right was not violated. Id.

¶ 9. The Supreme Court granted certio-rari, and disagreed with our finding that Robinson suffered no prejudice from the illegally lenient sentence. Robinson, 2000-CT-02087-SCT at (¶ 4). The court went on to affirm the conviction on other grounds. Id. at (¶ 10). We find that the instant case is distinguishable from Robinson. In Robinson, the defendant was a non-habitual offender contesting an illegal suspended sentence. Id. In this case, Edwards belatedly challenges the use of the illegally suspended sentence to establish his habitual offender status.

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

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


text:
    Kendrick RANKINS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01821-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.

      Kendrick Rankins (Pro se), attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. Kendrick Rankins appeals the denial of his motion for post-conviction relief. We affirm, finding his arguments to be without merit.

FACTS

¶ 2. On June 26, 2000, Rankins was indicted by a Wayne County grand jury for the sale of cocaine. Rankins pled guilty and was sentenced to eight years in the custody of the Mississippi Department of Corrections. He thereafter filed a motion for post-conviction relief in which he claimed he received ineffective assistance of counsel and that he entered an involuntary plea. The circuit court entered an order denying Rankins’s motion. It is from this denial that Rankins now appeals.

STANDARD OF REVIEW

¶ 3. This Court in reviewing a petition for post-conviction relief “will not disturb the factual findings of the trial court unless they are determined to be clearly erroneous.” Newman v. State, 820 So.2d 768, 769(¶ 3) (Miss.Ct.App.2002). We will not vacate such a finding unless after reviewing all the evidence we are “left with the firm and definite conviction that a mistake has been made.” Id.

LAW AND ANALYSIS

I. DID RANKINS RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 4. Rankins argues that he received ineffective assistance of counsel. He cites four aspects of his trial counsel’s performance which he claims demonstrates ineffectiveness: failed to meet with him prior to date of trial, failed to discuss with him potential defenses, failed to advise him on alternatives to pleading guilty, and failed to explain to him the consequences associated with pleading guilty. The State argues that Rankins’s claims are discredited by the transcript of the sentencing hearing. Under oath Rankins indicated his satisfaction with his counsel’s representation and acknowledged that he understood the consequences associated with pleading guilty.

¶ 5. The standard under which counsel’s performance is evaluated for effectiveness was established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which was adopted by the Mississippi Supreme Court in Gilliard v. State, 462 So.2d 710, 714 (Miss.1985). The Strickland test requires a petitioner to prove (1) deficiency of counsel’s performance and (2) whether the defendant was prejudiced by counsel’s performance. Strickland, 466 U.S. at 687-96, 104 S.Ct. 2052. “The burden of proving that both prongs of Strickland have been met is on the defendant who faces” a strong, yet rebuttable, presumption that “counsel’s conduct falls within the broad spectrum of reasonable professional assistance.” Walker v. State, 708 So.2d 266, 268(118) (Miss.1997). This Court’s scrutiny of counsel’s performance must be highly deferential. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

¶ 6. Rankins argues that he never would have pleaded guilty had his attorney’s assistance been effective. The Strickland test “applies to challenges to guilty pleas based on ineffective assistance of counsel.” Newsom v. State, 791 So.2d 888, 890(¶ 7) (Miss.Ct.App.2001). To satisfy the performance prong, the petitioner must prove that counsel’s performance was objectively unreasonable under professional standards. Simmons v. State, 805 So.2d 452(¶ 51) (Miss.2002). This Court looks to the totality of the circumstances when determining whether counsel’s acts were deficient. Newman, 820 So.2d at 770(¶ 5). The prejudice prong requires a petitioner to show that counsel’s unprofessional errors were of such substantial gravity that, but for the counsel’s errors, the petitioner would not have entered the plea. Bell v. State, 754 So.2d 492, 495(¶ 7) (Miss.Ct.App.1999).

¶ 7. Rankins asserts that his attorney was ineffective because he devoted insufficient time to his case. Specifically, Rankins states that his attorney met with him only once prior to trial. The Mississippi Supreme Court has held that the fact that an attorney has conferred with his or her client only once does not establish ineffective assistance of counsel. See Harveston v. State, 597 So.2d 641, 642 (Miss.1992) (Court rejects ineffective assistance of counsel claims where attorney conferred with defendant for only one hour and fifteen minutes prior to guilty plea).

¶ 8; In Harveston, the court stated that counsel’s failure to make pretrial investigations and to spend more time with the client was “insufficient as 'a matter of law” absent a showing that the attorney’s alleged errors resulted in a guilty plea. Id. Therefore, Rankins must provide specific acts or omissions by his attorney which would create substantial questions of fact concerning his attorney’s assistance. Beall v. State, 768 So.2d 949, 951(¶ 8) (Miss.Ct.App.2000).

¶ 9. Rankins asserts that his attorney failed to discuss with him potential defenses including the defense that he was mentally incompetent. Rankins submitted no proof that he was mentally incompetent; therefore, we must conclude that his attorney’s representation was not defective. See Young v. State, 831 So.2d 585, 589(¶ 17) (Miss.Ct.App.2002).

¶ 10. Rankins contends that his attorney failed to, discuss with him the alternatives to pleading' guilty. He also asserts that his attorney failed to inform him of the implications associated with pleading guilty. Besides Rankins’s bald assertions of ineffective assistance, he offers no proof to support his allegations. The sentencing hearing transcript indicates that Rankins understood the implications associated with pleading guilty and that he was satisfied with his attorney’s representation. Therefore, Rankins has failed to meet the first prong of the Strickland test by proving that counsel’s representation was in any way deficient.

II. WAS RANKINS’S PLEA MADE INVOLUNTARILY UNKNOWINGLY AND UNINTELLIGENT-LY?

¶ 11. Rankins argues that his plea was not voluntarily or intelligently made because he was coerced by his counsel. Specifically, Rankins asserts his counsel induced him to plead guilty by telling him that if he did not take the plea bargain of eight years he could get the maximum sentence of thirty years.

¶ 12. “A plea is deemed voluntary and intelligent only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea.” Newman, 820 So.2d at 771 (¶ 7). The petitioner must prove by a preponderance of the evidence that his plea was involuntarily entered. Id.

¶ 13. In regard to Rankins’s impression that his attorney wrongly persuaded him to plead guilty, we find no suggestion that his attorney threatened or provided improper inducements. It is obvious that Rankins’s attorney gave him only advice as to what the situation could entail if he did not plead. Advising a client of the possibility of receiving the maximum sentence if the case goes to trial is not a form of coercion. Brasington v. State, 760 So.2d 18, 26(¶ 38) (Miss.Ct.App.2000).

¶ 14. Furthermore, a review of the transcript from the sentencing hearing reveals that Rankins’s plea was voluntarily and intelligently made. He responded that he understood the maximum and minimum sentencing and fining requirements associated with his crime. He also affirmed that his attorney had not pressured him into making the plea and that he entered his plea voluntarily.

¶ 15. Accordingly, this issue is without merit.

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

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


text:
    Brian Keith NELSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00380-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.

      William F. Travis, Southaven, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY

¶ 1. On February 7, 2002, a DeSoto County Circuit Court jury found Brian Keith Nelson guilty of one count of burglary of an automobile and one count of grand larceny. Nelson was sentenced to three years in the custody of the Mississippi Department of Corrections for the burglary and five years’ post-release supervision for the grand larceny conviction. Nelson appeals to this Court asserting the following issues: (1) the trial court erred in denying his motion for a directed verdict; (2) the trial court erred by not granting a mistrial after a prejudicial remark was made by a prospective juror; and (3) the trial court erred in failing to instruct the jury to consider the lesser-included offenses of trespass and petit larceny.

FACTS

¶2. On or about June 14, 2001, the owner of a racing car, kept at Elam’s body shop, discovered that the hood of his racing car had been removed and the carburetor was missing. Approximately two months later Desmond Cage, in the county jail on an unrelated matter, confessed to the theft of the carburetor. Cage told Lieutenant Reyna, a Hernando Police officer who originally investigated the burglary at Elam’s Body Shop, that he, Brandon Carpenter, and Brian Keith Nelson were involved in taking the carburetor. Later, Carpenter also confessed to the crime, implicating Cage and Nelson.

DISCUSSION OF ISSUES

I. DID THE LOWER COURT ERR IN DENYING NELSON’S MOTION FOR A DIRECTED VERDICT?

¶ 3. With his first issue, Nelson argues that the State failed to prove its case beyond a reasonable doubt and, therefore, the directed verdict should have been granted. Specifically, Nelson claims that the evidence was legally insufficient to sustain a guilty verdict. We look to our standard of review concerning directed verdicts. When reviewing a denial of a motion for directed verdict, “the court must review the evidence in the light most favorable to the [Sjtate, accept as true all the evidence supporting the guilty verdict, and give the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). The court will reverse only when reasonable and fair-minded jurors could find the accused not guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987).

¶ 4. From the testimony presented, we find that there was sufficient evidence to deny the directed verdict and send the case to the jury. We also find that there was sufficient evidence for the jury to find Nelson guilty of both charges. Cage and Carpenter separately confessed to the crimes and each identified Nelson as the one who took the hood off the car, loosened the carburetor with tools, and removed the carburetor from the car. Furthermore, Carpenter testified that Nelson was the one who saw the car and went to inspect it to determine what parts the car contained. The testimony of the witnesses and Nelson was conflicting, but this was a matter for the jury to resolve.

¶ 5. Nelson further argues that the State failed to prove the stolen carburetor was worth more than $250, the value the stolen property must exceed to fall under the grand larceny statute of Miss.Code Ann. § 97-17-41. However, the owner of the carburetor testified that it was worth at least $1000 and that he had to buy a used carburetor for $400 to replace the stolen one. The only testimony Nelson provided to rebut this was his own declaration that he buys used carburetors for anywhere between two and three hundred dollars.

¶ 6. From the testimony presented, there was sufficient evidence for the jury to resolve any conflicts in favor of the State.

II. DID THE LOWER COURT ERR IN NOT GRANTING A MISTRIAL AFTER A PREJUDICIAL REMARK WAS MADE BY A RESPECTIVE JUROR?

¶ 7. Nelson argues that the lower court should have granted a mistrial after certain comments were made by a jury panelist during voir dire. This particular juror (panelist number 55) mentioned that she thought “he [Nelson] was a client of ours on probation at Justice Network.” The Mississippi Supreme Court stated that the trial court is in the best position to determine if a mistrial should be granted. Alexander v. State, 602 So.2d 1180, 1182 (Miss.1992). Furthermore, it is the duty of the trial court to ensure that the jury, although not perfect, can render an impartial decision. Puckett v. State, 737 So.2d 322, 331(¶ 23) (Miss.1999).

¶ 8. After the comment in question was made, the court promptly rectified the situation. The trial judge told the prospective jurors that panelist number 55 was not sure if Nelson was the same person. This was a remark about a possible probation for someone that may or may not have been Nelson. The trial judge also stressed more than once that Nelson was “completely and totally innocent as he sits there.” Panelist number 55 was immediately dismissed and panelist number 5 as well, after the trial judge was informed this potential juror’s impartiality may have been affected. We feel the trial judge took the appropriate steps to ensure that the jury could render an impartial verdict and, therefore, we find this issue to be without merit.

III. DID THE TRIAL COURT ERR IN FAILING TO INSTRUCT THE JURY TO CONSIDER THE LESSER-INCLUDED OFFENSES OF TRESPASS AND PETIT LARCENY?

¶ 9. Nelson argues that the trial court should have instructed the jury to consider the lesser-included offenses of trespass and petit larceny during the deliberation. The courts have consistently held that a defendant is entitled to a lesser offense instruction only where there is an evidentiary basis in the record. Perkins v. State, 788 So.2d 826, 828(¶ 8) (Miss.Ct.App.2001). Furthermore, the evidence in a particular case generally warrants granting a lesser offense instruction if a rational or reasonable jury could find the defendant not guilty of the principal offense charged in the indictment, yet guilty of the lesser-included offense. Florence v. State, 786 So.2d 409, 413-14(¶ 14) (Miss.Ct.App.2001).

¶ 10. Trespass is a lesser-included offense to every burglary and, therefore, “if a rational or reasonable jury could have found [Nelson] not guilty of business burglary yet guilty of trespass, then the lesser-included offense instruction on trespass should have been granted.”- Id. at (¶ 15). Nelson’s own testimony was that he never participated in the burglary and, likewise, never entered the premises of the body shop. We find it improbable that Nelson contends he did not trespass, yet he wants the jury to consider whether or not he in fact trespassed. Absent some evidence that Nelson trespassed in the body shop without participating in the burglary, there was no evidentiary basis for granting the instruction.

¶ 11. Petit larceny is a lesser-included offense of grand larceny if the stolen property in question is worth less than $250. Miss.Code Ann. § 97-17-43 (Rev. 2000). In this case, there was sufficient testimony for the jury to conclude the value of the carburetor exceeded $250. There was evidence from the owner that the carburetor was worth $1000, and the replacement cost $400. Therefore, we find the lesser-included offense of petit larceny was not warranted.

¶ 12. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, BURGLARY OF AN AUTOMOBILE AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; COUNT II GRAND LARCENY AND SENTENCE OF FIVE YEARS’ POST-RELEASE SUPERVISION TO RUN CONSECUTIVELY TO SENTENCE IN COUNT I, AND TO PAY $1000 IN RESTITUTION AND A FINE OF $1000 IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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


text:
    David C. GAUTIER, Lawrence L. Gautier, Walter Warren Gautier and Andre A. Gautier, Appellants, v. MISSISSIPPI TRANSPORTATION COMMISSION, Appellee.
    No. 2001-CA-01795-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.
    Vincent J. Castigliola, Pascagoula, attorney for appellant.

      Donald E. Hinton, Jack Homer Pittman, Hattiesburg, attorneys for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY

¶ 1. On March 27, 1998, the Mississippi Transportation Commission (MTC) instituted an eminent domain action in the Jackson County Special Court of Eminent Domain against the appellants (Gautiers) to have a restaurant and docks owned by the Gautiers condemned, since they were in the path of a soon-to-be built bridge spanning the Pascagoula River. On the same day as the action was filed, the court entered a declaration of taking, and the MTC filed a notice of deposit in the amount of $562,900 with the court, which the MTC deemed to be just compensation for the property taken based on the appraisal. The court granted MTC the right of immediate title and possession to the property on April 10, 1998, and on April 15, 1998, the court granted the Gautiers’s request to release the funds on deposit.

¶ 2. The court granted MTC’s request to amend its complaint in June 1999 since the previous procedures had relied on a statute which was declared unconstitutional. In September 1999, the court entered an amended order granting MTC the right of immediate title and possession and therein changed the previous appraisal amount to $603,000, which, when crediting the $562,900 previously deposited, left MTC with a balance due of $40,100. MTC deposited this sum with the court on September 22, 1999, but the Gautiers were not given formal notice of the deposit. In August 2001, an updated statement of values was filed with the court, with the revised appraisal amount of $831,100. MTC deposited $228,100 on September 8, 2001, which was the difference between this new amount and the previously noted amount.

¶ 3. On September 13, 2001, a trial was held to determine the proper amount due the Gautiers for the taking. After hearing from three experts, a jury returned a verdict in favor of MTC in the amount of $831,000, and at the Gautiers’s request, the court added $100 to reflect the amended statement of values. The court denied the Gautiers’s subsequent motion for additur or in the alternative a new trial, and they appeal to this Court raising the following issues: (1) Was the verdict of the jury contrary to the overwhelming weight of the credible evidence, or the result of bias, prejudice, or passion on the part of the jury? (2) Did the trial court err in refusing to grant the property owners an addi-tur or in the alternative, a new trial? and (3) Did MTC fail to furnish property owners with notice of deposited funds, and should they be forced to pay property owners interest on that amount? We review each of these issues and find no merit; thus, we affirm.

FACTS

¶ 4. This case involves an eminent domain proceeding and whether or not the property owners received just compensation. The appellants in this ease owned a restaurant and adjoining docks situated on the Pascagoula River in Jackson County. Plans were approved to build a high-rise bridge over the river to replace a dilapidated draw bridge, and to complete the project, the restaurant and docks had to be demolished. The Gautiers, however, did not agree with the amount MTC offered to pay them for their property.

¶ 5. At trial, MTC called two witnesses as experts. Webb Steadman explained the cost of improvements to the property and said with the improvements that construction cost of a new similar building and docks would be $940,936, which included labor and materials. Daniel Loflin, a staff appraiser for the MTC, was accepted as an expert in the field of real estate appraisals. Loflin testified that he took into account depreciation of the improvements and arrived at a value of $881,100. The Gautiers called Lance McCarty as an expert in the field of commercial construction and cost. McCarty testified that the total value of the building was $990,095, which included the replacement costs of the building and engineering costs.

DISCUSSION OF THE ISSUES

I. WAS THE VERDICT OF THE JURY CONTRARY TO THE OVERWHELMING WEIGHT OF THE CREDIBLE EVIDENCE, OR THE RESULT OF BIAS, PREJUDICE, OR PASSION ON THE PART OF THE JURY?

¶ 6. This case involves the issues of eminent domain and just compensation for the property taken, and we first look to our applicable standard of review.

In State Highway Comm’n of Mississippi v. Havard, 508 So.2d 1099, 1105 (Miss.1987), the Mississippi Supreme Court quite thoroughly set forth the standard of review for jury verdicts in eminent domain cases as follows: As in the case of any other jury determination of damages, we are not at liberty to order a new trial unless the verdict is so at variance with the evidence as to shock the conscience of the court. Except where the verdict is grossly excessive and evinces bias, passion and prejudice by the jury, we have no authority to require the prevailing party to submit to a second adjudication. This rule applies in eminent domain cases as in others.

Carlton v. Mississippi Transp. Comm’n, 749 So.2d 170(¶ 23) (Miss.Ct.App.1999).

¶ 7. Concerning valuation of property in eminent domain cases, this Court has stated the following:

In cases of eminent domain, the burden of presenting competent evidence of fair value of the property being acquired rests with the condemning authority. If the authority fails to present competent evidence of value, then the acquisition of title to the property cannot occur. Evidence of value must, by statute, relate to a particular point in time-namely, the date of filing of the complaint commencing the acquisition process. “Evidence of fair market value shall be established as of the date of the filing of the complaint.”

Williamson v. Lowndes Co., 723 So.2d 1231(¶ 3) (Miss.Ct.App.1998) (citations omitted).

¶ 8. With their first issue, the Gau-tiers argue the award of compensation was not commensurate with the evidence presented, and the trial judge erred in failing to grant their request for an additur. Specifically, they argue that the jury erred in relying on MTC’s incorrect estimate, which resulted from improper reliance on MTC’s expert, Webb Steadman, who failed to make adjustments to account for workers’ compensation insurance and for engineering costs in arriving at his estimate. The Gautiers also argue that MTC grossly underestimated the costs for heating/air conditioning and electrical and plumbing costs, which, when combined with the insurance and engineering undervaluation, caused MTC’s final estimate to be undervalued by $270,950. The Gautiers argue that in the “battle of experts,” the jury should have relied on their expert whose qualifications were far superior than those of MTC’s expert.

¶ 9. The property at issue was a restaurant and adjoining dock located on the Pascagoula River. Three witnesses testified concerning the value of the property and/or replacement costs. First, Webb Steadman testified for MTC. Steadman earned a degree in construction technology and had worked in the construction business since 1977. He testified that he is licensed in this area, and described for the jury different projects he had built including a church, gas station convenience marts and restaurants, among other commercial buildings. Steadman explained that in calculating his bid price for a job, he would break the job down into components, then add overhead and profit and arrive at the bid figure. Steadman testified that he was able to walk through the restaurant at issue before it was destroyed, plus he had eaten there previously on several occasions, so he was quite familiar with the structure. Steadman’s cost estimation for the building was $729,331 and estimate for the docks was $211,605. He explained that the figure he arrived at represented the cost to build the restaurant as it existed at the time he walked through it in August 1997, and he presented drawings which broke down each element of the cost for the jury. These figures did not account for depreciation, but only reflected the cost of new construction. On cross-examination Steadman admitted he did not consult subcontractors in arriving at his estimate for services including heating and air conditioning, plumbing, electrical and the like, but that he used ballpark figures based on past experience.

¶ 10. Next, MTC called Daniel Lofton to testify. Lofton testified he has worked as a real estate appraiser for the Mississippi Department of Transportation since 1993, and he is a certified general appraiser in the state, which is the highest level license designation in Mississippi. Lofton stated he had appraised everything from simple residential properties to commercial and industrial properties. In 1997 the MTC asked Lofton to estimate the fair and just compensation due the Gautiers for the property at issue. Lofton described that he conducted an appraisal of the condition of the property before the highway was constructed, then again after the highway was built, and the difference between those two values is what he allotted. He explained that in conducting the appraisals, he found sales in the area and used the cost approach to value the property, since the property is so unique in that it is located on the water. Lofton explained that in using the cost approach, he used two contractors’ estimates, including Steadman’s, to arrive at the cost of the new restaurant. He also figured in eleven percent depreciation to the building and fourteen percent depreciation to the docks using a nationally accepted method which takes into account the age of the building, how long the building will actually stand, improvements and the like. Lofton said he actually visited the property several times, and his estimate of $831,100 was fair and just compensation for the Gauti-ers.

¶ 11. Finally, the Gautiers called Lance McCarty to testify. At the time of trial, McCarty was part-owner of Fletcher Construction Company, where he engaged in industrial and commercial construction on the Gulf Coast. McCarty had worked in the construction business for twenty years, but he admitted he was not a licensed contractor, but more of an estimator and project manager or a “mother” to the company, as he described himself. McCarty did not see the structure before it was demolished, but was able to review a videotape and photographs of the restaurant. McCarty estimated that the replacement cost to rebuild the restaurant new was $114.74 per square foot for the 8,148 square foot building, which totals to $990,995 for the building, not including the docks.

¶ 12. The Mississippi Supreme Court has stated that when a jury award is between the values offered by the experts, such an award cannot be said to have been influenced by bias, passion or prejudice. Brown v. Mississippi Transp. Comm’n, 749 So.2d 948(¶ 55) (Miss.1999). Apparently choosing to rely most heavily on the testimony of appraiser Daniel Lofton, the jury arrived at the figure of $831,000. Immediately after the jury was polled, the attorney for MTC alerted the judge that the stated value was $831,100, to which the judge replied he would correct the problem. Having done so, the amount was between those values offered by all three experts, and in accordance with Brown, we cannot find that the award was influenced by bias, passion or prejudice; thus, we affirm on this issue.

II. DID THE TRIAL COURT ERR IN REFUSING TO GRANT THE PROPERTY OWNERS AN ADDITUR OR IN THE ALTERNATIVE, A NEW TRIAL?

¶ 13. The Gautiers next argue that the judge erred in denying their motion for additur or new trial. The authority for a judge to impose an additur is found in the Mississippi Code:

The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an addi-tur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence ....

Miss.Code Ann. § 11-1-55 (Rev.2002).

¶ 14. Additionally, we note our familiar standard of review concerning motions for new trial.

This Court gives the trial court great deference in determining whether a new trial should be granted. If there is substantial evidence to support the jury award, or if the award is not so large or inadequate as to shock the conscience of the Court, or is not the result of bias, passion or prejudice on the part of the jury, this Court will not reverse an award of damages. However, if this Court, or any other court of record, “finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence,” a motion for a new trial still may be overruled upon condition of additur or remittitur.

Odom v. Roberts, 606 So.2d 114, 118 (Miss.1992) (citations omitted).

¶ 15. As described in the first issue, we cannot find that the weight of evidence was against the jury’s verdict. Evidence included videotapes and photographs of the property, plus testimony from three different experts in relevant fields. Taken together, these all provided substantial evidence to support the jury award. Having previously found that the jurors were not influenced by bias or prejudice, we find that the judge did not abuse his discretion in denying the motion for additur or new trial.

III. DID MTC FAIL TO FURNISH PROPERTY OWNERS WITH NOTICE OF DEPOSITED FUNDS, AND SHOULD THEY BE FORCED TO PAY PROPERTY OWNERS INTEREST ON THAT AMOUNT?

¶ 16. With the Gautiers’s final issue, they argue MTC erred in failing to notify them of funds deposited; thus, they are entitled to interest from the date of deposit. The Gautiers cite to Miss.Code Ann. § 75-17-1 (Supp.2002) (“The legal rate of interest on all notes, accounts and contracts shall be eight percent (8%) per annum....”) and to art. 3, § 17 of the Mississippi Constitution (Mississippi’s “taking” section of the State constitution) in arguing they are entitled to eight percent interest on unpaid funds.

¶ 17. Following is a chronology of events as they occurred with regard to deposits:

3-27-98: complaint filed, containing notice that property was valued at $562,900; amount deposited the same day with court clerk
4-15-98: Gautiers received notice of court deposit and entered order authorizing release of funds on deposit (funds disbursed to Gautiers 4-29-98)
9-22-99: $40,100 deposited with court clerk on behalf of Gautiers; no notice given to Gautiers of deposit
8-14-01: second statement of values filed, assessing property value at $831,100
9-8-01: MTC deposited additional $228,100 with court clerk, and clerk orally told Gautiers of the deposit (disbursed 9-17-01)

¶ 18. The Gautiers argue that pleadings require reasonable notice to parties and that MTC’s lack of notice concerning these deposits entitles them to interest from the time of deposit to their discovery. Eight percent of the $40,100 deposit would amount to over $6,000 in accrued interest, and eight percent of the $228,100 deposited 9-8-01 and discovered 9-17-01 would amount to approximately $450 in accrued interest.

¶ 19. In Mississippi State Highway Comm’n v. Owen, 310 So.2d 920 (Miss. 1975), the supreme court explained that once deposited, the clerk acquired control of the funds and the commission was not responsible for interest from the point of deposit to the time the landowner withdrew the funds.

When the highway commission deposited these funds with the clerk of the court, it had no further control of the funds and no right to withdraw them. The only person who could have obtained and used the money was the landowner .... Under these circumstances, the commission should not and is not required to pay interest on this amount deposited after the date of its deposit.

Id. at 922. In the present case, once MTC deposited the funds, the Gautiers had the right to withdraw the funds from any point thereafter. Concerning MTC’s responsibility to give the Gautiers notice of the deposits, we find no obligation exists for the depositor, and in accordance with Owen, we find MTC is not responsible for interest.

¶ 20. THE JUDGMENT OF THE JACKSON COUNTY SPECIAL COURT OF EMINENT DOMAIN IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . See Lemon v. Miss. Transp. Comm’n, 735 So.2d 1013(¶ 40) (Miss.1999).


author: SOUTHWICK, P.J.,

text:
    Paul Elvis CRAWFORD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01345-COA.
    Court of Appeals of Mississippi.
    March 11, 2003.
    Lisa D. Collums, Gulfport, attorneys for appellant.
    Office of the Attorney General by: Deirdre McCrory, attorney for appellee.

      Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Paul Crawford was convicted of burglary by a circuit court jury. On appeal, Crawford argues that evidence of his intent upon entering the victim’s home was inadequate to support the conviction, and that more generally, the verdict did not respond to the weight and sufficiency of the evidence. Finally, Crawford contends that his defense was marred by ineffective assistance of counsel. We find no merit to these arguments and affirm.

STATEMENT OF FACTS

¶2. On the morning of September 21, 2000, Patrick Hamlin left the home he shared with his ailing mother and two others, and made his way to work. Approximately two hours later, Hamlin returned to check on his mother. He noticed that the wooden back door that he had previously closed was now slightly ajar. Hamlin entered the house and went into the kitchen. Seeing a shadow moving in the periphery of his vision, Hamlin went to the front of the house. There he saw Paul Crawford, who stared at him while frantically attempting to unlock the front door. After Crawford was finally able to open the door and exit the house, Hamlin chased him briefly down the street before returning to assure his mother’s safety and to contact law enforcement.

¶ 3. A description of the intruder was radioed to area police. Though police pointed out a possible suspect, Hamlin stated that it was not the man he had just confronted. Meanwhile, several blocks away, Detective Sergeant Kenneth Brown observed suspicious behavior from a man matching the intruder’s description. Brown stopped the man, Crawford, who agreed to be escorted back to the scene. There, Hamlin immediately and positively identified Crawford as the perpetrator.

DISCUSSION

1. Intent

¶ 4. One of the elements necessary to prove burglary is the intent to commit a crime after breaking and entering. Miss. Code Ann. § 97-19-23 (Rev.2000). Crawford argues that the evidence failed to demonstrate any proof of his intentions. There was no evidence that any items of value had yet been taken or even disturbed, such as electronics and jewelry. Only a single duffle bag had been rifled through before Hamlin’s arrival.

¶ 5. Since those committing burglary usually have no occasion to announce their intentions, evidence of the required intent usually arises only from inferences:

Some presumptions are to be indulged in against one who enters a building unbidden at a late hour of night, else the burglar caught without booty might escape the penalties of the law. People are not accustomed in the nighttime to enter homes of others, when asleep, with innocent purposes. The usual object is theft; and this is the inference ordinarily to be drawn in the absence of explanation irom breaking and entering at night accompanied by flight when discovered, even though nothing has been taken.

Brown v. State, 799 So.2d 870, 872 (Miss.2001) (quoting Nichols v. State, 207 Miss. 291, 296-97, 42 So.2d 201, 202-03 (1949)).

¶ 6. Therefore, an inference of the intent to steal may arise from proof of the breaking and entering. Gillum v. State, 468 So.2d 856, 859 (Miss.1985). Crawford is permitted to counter this evidence which arises from an inference, just as he may counter other kinds of evidence presented to prove his guilt. The State met its burden of presenting evidence on each element of burglary.

2. Weight and sufficiency of the evidence

¶ 7. Crawford next claims that the trial court erred in failing to grant his motion for directed verdict. In reviewing a challenge to the legal sufficiency of the evidence, an appellate court is to consider all evidence and the inferences arising from it in a light most favorable to the verdict reached. We may enter an acquittal only if we are convinced that no reasonable, hypothetical juror would find guilt. Tait v. State, 669 So.2d 85, 88 (Miss.1996). Crawford contends that the prosecution’s identification testimony and the lack of physical evidence fail the test of sufficiency-

¶8. Crawford urges us to consider the factors for identification set forth by the United States Supreme Court. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). However, this case has no serious issue regarding identification. Crawford, unable to open the front door as Hamlin approached him, was fully on view for a meaningful length of time. Hamlin’s verbal description of the intruder given to law enforcement officers was nearly identical to Crawford’s physical characteristics. When Crawford was returned to the scene within the hour, Hamlin identified him with certainty.

¶ 9. As to the alleged absence of physical evidence, the eyewitness testimony of Crawford’s presence in the home was more than sufficient.

¶ 10. Failing on this argument, Crawford also seeks a new trial through his contention that the verdict went against the overwhelming weight of the evidence. We may order a new trial only if allowing the verdict to stand would constitute an “unconscionable injustice.” Gro-seclose v. State, 440 So.2d 297, 300 (Miss.1983). Here, the evidence weighs against Crawford, and we cannot find it unjust to allow the verdict to stand.

S. Ineffective assistance of counsel

¶ 11. In addition, Crawford filed a pro se supplemental brief claiming ineffective assistance of counsel. He did not seek leave to file the brief and therefore we need not consider it. M.R.A.P. 28(c) (further briefs from an appellant besides an initial and reply brief must receive leave of court). We find that the brief is particularly inappropriate since the issue raised is ineffective assistance of counsel. That is a matter usually better suited for post-conviction relief because insufficient evidence is in the record of the trial and related matters to evaluate the claim. Read v. State, 430 So.2d 832, 837 (Miss.1983). We find no obvious inadequacy by counsel in the claims raised in the pro se brief. Consequently, we do not consider the issue.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF HARRISON COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE IS HEREBY AFFIRMED. COSTS OF APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: SOUTHWICK, P. J„

text:
    Antonio Demarcus BROWN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01713-COA.
    Court of Appeals of Mississippi.
    March 11, 2008.

      Thomas Quitman Brame, Bay Springs, attorney for appellant.
    Office of the Attorney General, by W. Glenn Watts, attorney for appellee.
    Before SOUTHWICK, P.J., LEE & MYERS, JJ.
   SOUTHWICK, P. J„

for the court.

¶ 1. Antonio Brown was convicted of burglary and armed robbery. He appeals, assigning as error that his statement to police should have been suppressed, that a continuance was required after Brown failed to return to the courtroom after a lunch recess, and that a mistrial or a new trial should have been granted. We reject all these complaints and affirm.

FACTS

¶ 2. During the evening of May 3, 2000, Antonio Brown broke into the home of Evelyn McGill, an elderly neighbor of Brown’s. McGill was sleeping at the time but awoke to banging on her front door and someone yelling to be let into the home. Brown forced his way through the locked door and into the bedroom, sprayed McGill with a pepper spray, struck her in the head with a brick, and then took $400 in cash McGill kept hidden in her pillowcase.

¶ 3. McGill immediately identified Brown to police. The following day, Brown voluntarily presented himself to authorities to answer questions about the burglary. Brown was accompanied by his mother and a bail bondsman. Brown was taken alone to a processing area where he was advised of his constitutional rights, which he waived in writing. He then admitted to the events in McGill’s home. Brown was arrested and later indicted for burglary and armed robbery.

¶ 4. On the first day of trial, Brown failed to return to court after the lunch recess. Defense counsel moved for a continuance. That was denied. The trial proceeded and resulted in Brown’s conviction of the two felonies and a sentence of imprisonment.

DISCUSSION

1. Admissibility of statement

¶ 5. Brown first asserts that his statement to police and the signed waiver of his constitutional rights should have been suppressed because both were involuntarily given.

¶ 6. Chief among Brown’s arguments is his claim that police believed him to be seventeen years old at the time that he gave his statement. He was eighteen. He argues that a parent should have been present at the time that he was questioned. By statute, if a child is taken into custody “in a matter in which the Youth Court has original exclusive jurisdiction,” his parents or guardian should be invited to be present during questioning. Miss. Code Ann. § 43-21-303(3) (Rev.2000). Where original jurisdiction lies with the circuit court, parental presence is not a pre-requisite to admissibility of a minor’s confession. Horne v. State, 825 So.2d 627, 639 (Miss.2002).

¶ 7. Both the Youth Court and circuit court statutes grant original jurisdiction to the circuit court in this matter. The Youth Court does not have original jurisdiction concerning any act committed by a child which carries the possible criminal penalty of life imprisonment. Miss.Code Ann. § 43-21-151(l)(a) (Rev.2000). Such is the potential penalty for armed robbery, one of the crimes with which Brown was charged. However, no child under the age of thirteen may be held criminally responsible. Miss.Code Ann. § 43-21-151(3) (Rev.2000). Even had Brown been only seventeen years old, he could be questioned without his mother’s presence.

¶ 8. In addition to his youth, Brown suggests that other facts made his statement involuntary. Brown refers to precedents in which an investigation of the mental capacity of a defendant was needed when examining a confession’s voluntariness. The trial court did not make that inquiry. However, the state supreme court has applied a United States Supreme Court precedent to hold that absent police misconduct in obtaining a waiver, there is no due process requirement to examine a defendant’s mental state when a court determines whether a confession was voluntary. Butler v. State, 608 So.2d 314, 322-23 (Miss.1992) (citing Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)).

¶ 9. Brown does not claim that his statements to police were made as a result of police coercion or promises of leniency. He provided no evidence of unacceptable methods in obtaining his statements. There was no foundation laid here for an inquiry into the defendant’s mental capacity prior to the trial court’s holding that the statement was voluntary.

¶ 10. Brown also argues that he was incompetent to make a knowing and intelligent waiver of his rights, based upon limited intellect, education and intimations of intoxication. A defendant must be aware of the nature of his self-incrimination rights and comprehend the consequences of waiving them. Richardson v. State, 767 So.2d 195, 204 (Miss.2000). We review whether a defendant possessed sufficient faculties to understand the rights that he waived as well as whether police overreached in obtaining the confession by exploiting the handicap of a mentally weak person. Neal v. State, 451 So.2d 743, 756 (Miss.1984). These are questions for the trial court to examine as part of the totality of the circumstances. Richardson, 767 So.2d at 204. To be considered are the defendant’s experience and familiarity with the criminal justice system, intellectual capacity, educational background, degree of literacy, emotional state and any mental disease or other defect. Holland v. State, 587 So.2d 848, 860 (Miss.1991).

¶ 11. Brown never went beyond hinting that he suffered a mental deficiency that rendered him unable to understand his rights and the consequences of waiving them. He presented no evidence to support that theory. The most he advanced was the arresting officer’s agreement that Brown was “not an intelligent person” and largely without formal education. This is insufficient to establish a sufficient lack of cognitive ability to impair Brown’s comprehension.

¶ 12. Likewise, if a defendant is acting under the influence of alcohol or drugs, admissibility depends upon the degree of intoxication. Baggett v. State, 793 So.2d 630, 634 (Miss.2001). Brown rests his claim on this point upon the fact that the arresting officer refused to offer an opinion as to whether or not Brown was under the influence of an intoxicating substance at the time he waived his constitutional rights. Brown does not assert that he was under the influence of alcohol or drugs, merely that the State failed to establish that he was not. But the State did address this point.

¶ 13. The record shows that the arresting officer stated on direct examination that Brown had not been under the influence of any intoxicants when he appeared at the police station. The officer further stated that Brown appeared to understand the warnings about his rights and that the waiver of those rights had been freely and voluntarily given. Even if the officer was less cooperative on cross-examination, still evidence existed to support a voluntary waiver.

¶ 14. As to a suspect’s fear, that may be considered when looking at the totality of the defendant’s mental state. However, there is no evidence to suggest Brown’s fear was so disabling as to render him unable to comprehend his actions. Perhaps all but the most hardened criminals suffer anxiety when facing official questions about a violent crime.

¶ 15. Lastly, Brown asserts the trial court failed to take into account the totality of the circumstances when finding the waiver to have been knowing and voluntary. It is true that the trial judge at one point said that the only thing that mattered was if the rights warnings had been given. This was in response to a defense statement which improperly argued that in addition to the generic warnings, a defendant must be told the specific crime of which he is suspected before he can be interrogated. The trial court stated his correct understanding of the law.

¶ 16. The trial court did not give detailed findings of facts when it determined Brown’s statement was voluntary and admissible. We therefore review the entirety of the record to make an independent determination of the voluntariness of Brown’s waiver of rights. Coverson v. State, 617 So.2d 642, 647 (Miss.1993). That review convinces us that sufficient evidence was presented at the suppression hearing to support a finding that Brown’s statement was admissible.

2. Trial in absentia

¶ 17. Brown asserts that a continuance should have been ordered after he failed to return after the lunch recess on the first day of trial. The remainder of the trial was conducted in Brown’s absence.

¶ 18. A statute explicitly provides for trial in absentia when the accused is in custody and consenting to trial in his absence. Miss.Code Ann. § 99-17-9 (Rev. 2000). Precedents make plain that even beyond the statute’s language, a defendant waives his presence at trial if, after being present at the commencement of proceedings, he thereafter voluntarily absents himself. Sandoval v. State, 631 So.2d 159, 161 (Miss.1994). The defendant’s presence at the commencement of trial satisfies the custody requirement. McMillian v. State, 361 So.2d 495, 497 (Miss.1978). Consent to carry on will be presumed from a defendant’s voluntary refusal to return to the proceedings. As Justice Alexander Hamilton Handy wrote long ago, if the defendant is present for the commencement of trial but thereafter departs or escapes, “his own illegal act should not be permitted to thwart the process of law to his advantage.” Sandoval, 631 So.2d at 162 (quoting Price v. State, 36 Miss. 531, 542 — 43 (1858)).

¶ 19. Brown does not contest that he was present at the commencement of trial and remained through the selection and swearing in of a jury. We find that the trial court validly proceeded with the trial in Brown’s voluntary absence.

3. “Golden Rule” argument

¶ 20. Brown’s final assertion of error rests upon a comment made by the prosecution to the effect that the jury should put themselves in the place of the victim. Brown contends this constitutes a violation of the prohibition against “Golden Rule” arguments.

¶ 21. “Golden Rule” arguments are prohibited because they encourage jurors to act out of self-interest rather than a neutral review of the evidence presented at trial. Chisolm v. State, 529 So.2d 635, 640 (Miss.1988). On the other hand, a prosecutor may comment upon the weight and worth of the evidence presented at trial. Butler, 608 So.2d at 318.

¶22. The transcript shows that the prosecution asked the jurors to put themselves in the place of the victim, Ms. McGill. That was in the context of urging the believability of the evidence that the victim had not actually seen her attacker and to ask the jurors to dismiss the vagueness of some of her testimony. The prosecution was exhorting the jurors to believe the victim even though there were gaps in her story because of the nature of her injuries. This was proper commentary upon the evidence presented and the weight to be given it.

¶ 23. THE JUDGMENT OF THE JASPER COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I BURGLARY AND SENTENCE OF FIVE YEARS; AND COUNT II ARMED ROBBERY AND SENTENCE OF FIFTEEN YEARS WITH FIRST TEN YEARS TO BE SERVED WITHOUT PAROLE, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SENTENCES TO RUN CONCURRENTLY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO JASPER COUNTY.

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