author: THOMAS, J.,

text:
    Marshall LANE, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01820-COA.
    Court of Appeals of Mississippi.
    Feb. 4, 2003.
    Rehearing Denied April 8, 2003.

      John R. McNeal Jr., Jackson, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MeMILLIN, C.J., THOMAS, and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. Marshall Lane, Jr. was convicted of shooting into a dwelling and was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections and pay all court costs, statutory fees, and assessments in the amount of $623. Aggrieved, he asserts the following issues:

I. THE TRIAL COURT ERRED IN ITS RULING ON LANE’S MOTION IN LIMINE WHICH SERVED TO DENY LANE HIS RIGHT TO TESTIFY.

II. THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF DEPUTY WYMAN CONCERNING MATTERS THAT SHOULD BE STRICTLY RESERVED FOR EXPERTS.

III. THE TRIAL COURT ERRED IN DENYING TO DECLARE A MISTRIAL AFTER STATE’S WITNESS GLORIA STATON TESTIFIED CONTRARY TO COURT’S RULING ON LANE’S MOTION IN LIMINE AND FURTHER ERRED IN FAILING TO INSTRUCT THE JURY TO DISREGARD MS. STATON’S TESTIMONY SO AS TO MINIMIZE PREJUDICE.

IV. THE TRIAL COURT ERRED IN NOT GRANTING LANE’S MOTION FOR DIRECTED VERDICT AT THE CLOSE OF THE STATE’S CASE, HIS MOTION FOR JNOV, OR IN THE ALTERNATIVE, NEW TRIAL AT THE END OF LANE’S CASE, AND IN FAILING TO GRANT LANE A PEREMPTORY INSTRUCTION.

Finding no error, we affirm.

FACTS

¶ 2. On November 15, 1999, Candie Sta-ton was in the kitchen of the house owned by her mother, Gloria, and in which she lived along with her son, her mother, her brothers, and her grandfather. Candie Staton testified that sometime after sunset the lights in the house went out. She then saw the appellant, Marshall Lane, run past the window in the kitchen. Candie attempted to use the phone but the line was dead. She gathered her family together because they were afraid, and she testified that a gunshot was heard along with the sound of breaking glass. When another gunshot sounded like it was at the back of the house, Candie and her family all ran out the front of the house to a neighbor’s home. Candie’s eighteen year old brother, James, testified that when leaving the yard he saw Marshall Lane at the back of the house.

¶ 3. Madison County Deputy Cline Wy-man arrived at the Staton home shortly after 6 p.m. Wyman testified that he found blast holes in two different windows on the house with glass on the floor inside, a damaged light fixture in the home, and what appeared to be wadding from a small gauge shotgun inside the home. Wyman found the power to be off at the house and the telephone line cut. Lane objected to Wyman’s testimony about the shotgun wad and that it was part of a shotgun shell, asserting that Wyman was not qualified as an expert witness on firearms and ammunition. The trial judge overruled this objection based on the grounds that Wyman was testifying as to what he had observed at the house. No more evidence was collected from the scene because the house burned later that night, destroying all of the evidence.

¶4. Lane did not testify in his own defense, but his mother did testify that he had been drinking and that she had instructed him to go to bed. Although she was not home at the time of the alleged shooting, she testified that Lane’s car was inoperable and that he would not have had any way to get to the Staton home which was eight miles away. In rebuttal, the State called Diane Johnson who testified that she saw Lane at her store in Jackson on the day of the shooting, over twenty miles from Lane’s mother’s house.

¶ 5. James and Gloria Staton were also called in rebuttal. James Staton testified that he saw Lane driving his car on the day of the shooting. Gloria Staton also testified to seeing Lane in his car on the day of the shooting, when he came to her house earlier that day. On cross-examination, defense counsel asked Staton how long Lane was at her house, and she responded that it was not long and that Lane attacked her. Lane had been convicted of an assault on Gloria Staton that occurred on the morning of the shooting and the defense moved for a mistrial due to the testimony of Staton and her reference to previous bad acts. The trial court denied the motion for mistrial.

¶ 6. At the close of trial, the jury found Lane guilty of shooting into a dwelling and he was sentenced to ten years in the custody of the Mississippi Department of Corrections and to pay all court costs, statutory fees, and assessments in the amount of $623. Lane moved for a JNOV or a new trial and a hearing was held. At this hearing, Lane argued for the first time that he was denied the right to testify because of the trial court’s ruling under M.R.E. 609 regarding his motion in limine. After hearing from both the defense and the prosecution, the trial court denied Lane’s motion.

ANALYSIS

I. DID THE TRIAL COURT ERR IN ITS RULING ON LANE’S MOTION IN LIMINE AND DID IT SERVE TO DENY LANE HIS RIGHT TO TESTIFY?

¶ 7. Lane argues that the trial court erred in its ruling on his motion in limine where the trial court informed Lane that the prosecution would be able to question him about any felony record during the last ten years if he chose to testify. Lane asserts that the trial court should have informed him that the other convictions could not have been used against him unless they were determined more relevant than prejudicial under the five factors set forth in Peterson v. State, 518 So.2d 632, 636 (Miss.1987). By not informing him of the State’s burden, Lane claims that his ability to defend himself was hampered due to an altered trial strategy and the inability to advance his own defense by not taking the stand.

¶ 8. The State points this Court to the record, where Lane failed to make a contemporaneous objection. An issue is waived on appeal where there was no contemporaneous objection. Russell v. State, 607 So.2d 1107, 1117 (Miss.1992). Our supreme court has held that in such a case to properly preserve the issue for appellate review the defendant must preserve for the record “substantial and detailed evidence of the testimony he would have given.” Heidelberg v. State, 584 So.2d 393, 395 (Miss.1991) (quoting Saucier v. State, 562 So.2d 1238, 1245 (Miss.1990)) (overruled on other grounds). Lane failed to proffer anything evidencing his testimony. Therefore, he has failed to properly preserve this issue for appeal.

¶ 9. The procedural bar notwithstanding, Lane’s argument is still without merit. The record includes no indications that Lane wanted to testify. Lane had an extensive criminal record, and he did choose to provide a defense in the form of the alibi testimony of his mother. This case is similar to Walker v. State, 823 So.2d 557, 561(¶ 6) (Miss.Ct.App.2002), wherein this Court held that there was no suggestion in the record that Walker indicated a desire to testify and there was nothing to support his claim to have been denied the right to testify. This issue is without merit.

II. DID THE TRIAL COURT ERR IN ALLOWING THE TESTIMONY OF DEPUTY WYMAN AND SHOULD HIS TESTIMONY BE STRICTLY RESERVED FOR AN EXPERT?

¶ 10. Lane argues that the trial court erred in allowing Deputy Wyman to testify about the items he found inside the Staton home. Wyman testified regarding shotgun wads found inside the Staton home, and Lane made an objection which was overruled by the trial judge. Lane argues that Wyman was not qualified as an expert under M.R.E. 702 and should not have been allowed to testify about the wads.

¶ 11. For lay witness opinion testimony of an ultimate fact to be admissible, it must pass a two part test under M.R.E. 701 and M.R.E. 602. The matter testified to must be within the witness’ personal knowledge, and the testimony must be helpful to the trier of fact in resolving the issue. Bower v. Bower, 758 So.2d 405, 413(¶ 37) (Miss.2000); Jones v. State, 678 So.2d 707, 710 (Miss.1996). A trial judge enjoys a considerable amount of discretion as to the relevancy and admissibility of evidence. Unless his judicial discretion is so abused as to be prejudicial to the accused, this Court will not reverse his ruling. Shearer v. State, 423 So.2d 824, 826 (Miss.1982) (citing Page v. State, 295 So.2d 279 (Miss.1974)).

¶ 12. Wyman was allowed to testify to what he observed at the scene of the shooting. During his testimony, he stated unequivocally that he was not an expert although he had been around guns and hunting all of his life. Wyman testified that wads were part of the components which make up a shotgun shell, and that he found several inside the Staton home. Wyman further testified that the wads were small, and based on this observance they were probably from a .410 gauge shotgun. Wyman refused to testify regarding how far shotgun wadding normally travels, stating that he did not know and was not an expert on the subject.

¶ 13. The test to determine whether the opinion of a witness constitutes expert opinion testimony rather than lay opinion testimony is whether the witness possesses some experience or expertise beyond that of the average, randomly selected adult. Sample v. State, 643 So.2d 524, 529 (Miss.1994). Wyman testified about what he observed at the scene, including small plastic wads found within the Staton home. He did not have to be an expert in the field of shotgun shell construction to recognize the wad, or to testify that it was small and in his opinion came from a .410 gauge. “Before error can be predicated at all upon an adverse eviden-tiary ruling, it must appear that a substantial right of the party is affected.” Jackson v. State, 594 So.2d 20, 25 (Miss.1992). The conclusion about the type of shotgun that fired the pellets entering the Staton home was not a matter of ultimate fact for the jury.

¶ 14. This issue is without merit.

III. DID THE TRIAL COURT ERR IN DENYING TO DECLARE A MISTRIAL AFTER STATE’S WITNESS GLORIA STATON TESTIFIED CONTRARY TO THE COURT’S RULING ON LANE’S MOTION IN LIMINE AND DID THE COURT FURTHER ERR IN FAILING TO INSTRUCT THE JURY TO DISREGARD MS. STATON’S TESTIMONY SO AS TO MINIMIZE PREJUDICE?

¶ 15. Lane asserts that the trial court erred in refusing to declare a mistrial after the State’s witness, Gloria Staton, testified that Lane had attacked her earlier on the day that the shots were fired into her house. Lane argues that Staton’s testimony was in violation of the trial court’s ruling on Lane’s motion in limine and that it seriously prejudiced his defense. The record reflects that Gloria Staton, along with other witnesses, were called in rebuttal in response to Lane’s attempt to establish an alibi through his mother’s testimony. Lane’s mother testified that Lane had been drinking and that his car did not work when she left him at her house on the evening the shooting occurred. The witnesses called in rebuttal by the State testified that they had seen Lane on the day of the shooting driving his car which was allegedly not working.

¶ 16. The State proffered that Gloria Staton would have testified that Lane had attacked her on the day of the shooting, for which he was later prosecuted and convicted. Although the State felt this would provide motive for the shooting into the house, the trial court did not allow this testimony into evidence. Lane now questions the testimony by Gloria Staton which arose on cross-examination. When asked how long Lane had been at her residence, the following exchange occurred:

Answer: Not long, because I went up to the car and he jumped out of his car and was about to attack me.
Question: All I, ma’am, Your Honor, I move to strike this. This is totally irrelevant. I just merely asked her how long he was there.
Answer: Well, I was just giving you an idea of how long it took him to go.
The Court: Wait just a second. She can explain her answer if she needs to.
Question: I was just asking her approximately how long he was there. Either she knows or she doesn’t know.
The Court: I can’t control what her answer is.
Question: Was he there five minutes, ten minutes, fifteen minutes, twenty minutes?
Answer: Well ...
Question: To your best estimate.
Answer: Huh?.
Question: To your best estimate.
Answer: Well, let’s see, after he got out of the car and attacked me, about fifteen minutes.

¶ 17. At this point, Lane’s counsel moved for mistrial and the trial court had the jury exit the courtroom. Lane argued that Staton’s testimony violated the motion in limine and requested a mistrial. The trial court held that the ruling made on the motion in limine was regarding the State’s ability to bring evidence forth, and that the witness had the ability to explain her answer and was relating the amount of time to what occurred while Lane was there. The trial court then cautioned the witness not to testify any further as to other possible criminal acts or charges before allowing the jury back in to continue the trial. The trial court did not instruct the jury to disregard Staton’s testimony, which Lane asserts was also error. It is noted, however, that Lane did not request the trial court to make such an instruction.

¶ 18. “Case law unequivocally holds that the trial judge ‘is in the best position for determining the prejudicial effect’ of an objectionable comment.” Alexander v. State, 602 So.2d 1180, 1182 (Miss.1992). The trial judge is vested with discretion to determine whether a comment is so prejudicial that a mistrial should be declared. Edmond v. State, 312 So.2d 702, 705 (Miss.1975). The trial court ruled that Gloria Staton’s testimony was responsive to the question that was asked. Staton’s estimate of how long Lane was at her residence was based upon her memory of the events that occurred while he was there. Lane’s conviction for this attack was not mentioned before the jury. The jury was admonished in jury instructions to disregard any comments which were not supported by the evidence or did not have any basis in the evidence.

1119. Our supreme court has held that a defendant cannot complain of evidence that he himself introduces by virtue of his own questions. Hobson v. State, 730 So.2d 20, 24-25(¶ 15) (Miss.1998). Objectionable statements are not error if they are the product of direct and cross-examinations by the defense counsel. Fleming v. State, 604 So.2d 280, 289 (Miss.1992) (citing Shannon v. State, 321 So.2d 1, 2 (Miss.1975)). Although Staton was the State’s witness, she was on cross-examination when the testimony of which Lane complains arose. The trial judge did not abuse his discretion in ruling that Staton’s answer was responsive to the question and denying a mistrial.

¶ 20. This issue is without merit.

IV. DID THE TRIAL COURT ERR IN NOT GRANTING LANE’S MOTION FOR DIRECTED VERDICT AT THE CLOSE OF THE STATE’S CASE, HIS MOTION FOR JNOV, OR IN THE ALTERNATIVE, NEW TRIAL AT THE END OF LANE’S CASE, AND IN FAILING TO GRANT LANE A PEREMPTORY INSTRUCTION?

¶ 21. Lane asserts that the trial court erred in failing to grant his motion for directed verdict, JNOV, new trial, and for a peremptory instruction. Lane argues both that there was insufficient evidence for the jury to convict him of firing into an occupied dwelling and that the jury verdict was against the overwhelming weight of the evidence. A motion for a directed verdict, request for peremptory instruction, and motion for judgment notwithstanding the verdict all challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). “Since each requires consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court.” Id. This occurred when the lower court denied the motion for JNOV. Wetz v. State, 503 So.2d 803, 807-8 (Miss.1987).

¶ 22. “If there is sufficient evidence to support a verdict of guilty, this Court will not reverse.” Meshell v. State, 506 So.2d 989, 990 (Miss.1987). See also Haymond v. State, 478 So.2d 297, 300 (Miss.1985); Fairley v. State, 467 So.2d 894, 902 (Miss.1985). This Court should reverse only where, “with respect to one or more elements of the offense charged, the evidence so considered is such that reasonable and fair minded jurors could only find the accused not guilty.” Alexander v. State, 759 So.2d 411, 421(¶ 23) (Miss.2000) (quoting Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995)). It is the jury’s duty to resolve conflicts in testimony. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983).

¶ 23. A motion for new trial challenges the weight of the evidence. McClain, 625 So.2d at 781. The standard of review in determining whether a jury verdict is against the overwhelming weight of the evidence is also well settled. “[T]his Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Collins v. State, 757 So.2d 335, 337(¶ 5) (Miss.Ct.App.2000) (quoting Dudley v. State, 719 So.2d 180, 182(¶ 9) (Miss.1998)). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Collins, 757 So.2d at 337(¶ 5) (citing Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992)). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Collins, 757 So.2d at 337(¶5) (quoting Dudley, 719 So.2d at 182).

¶24. In Lane’s trial, the jury-heard evidence from eyewitnesses who placed him outside of the Staton home before and after the shots were fired. Candie Staton testified to seeing Lane outside the kitchen window before the lights and phone went out, immediately before shots were fired into the house. James Staton testified to seeing Lane at the rear of the house when the family fled from the house after the shots had been fired. Both Candie and James knew Lane well, and testified that they were certain of their identification of him. Lane supplied alibi testimony which was rebutted by several witnesses who testified to seeing Lane driving his allegedly broken car on the day of the shooting.

¶25. The trial court was correct in denying Lane’s motion for JNOV and allowing the jury to decide the case. The evidence was sufficient to support a guilty verdict, based on the eyewitness testimony and the totality of the evidence presented at trial. Similarly, the trial court was within its discretion in denying Lane’s motion for new trial. The jury verdict of guilty was not against the overwhelming weight of the evidence.

f 26. This issue is without merit.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF SHOOTING INTO A DWELLING AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: IRVING, J„

license: Public Domain

text:
    Leroy COLEMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2001-KA-01353-COA.
    Court of Appeals of Mississippi.
    March 18, 2003.

      Lisa D. Collums, Gulfport, for appellant.
    Office of the Attorney General by Scott Stewart, for appellee.
    Before THOMAS, P.J., IRVING AND MYERS, JJ.
   IRVING, J„

FOR THE COURT:

¶ 1. Leroy Coleman was convicted of burglary in the Circuit Court of Harrison County. Feeling aggrieved by the conviction, he appeals and assigns error to the trial court in three issues which we quote verbatim from his brief:

I. THE TRIAL COURT WAS IN ERROR WHEN IT REFUSED TO GRANT THE APPELLANT’S JURY INSTRUCTION D-l, AND SUBSTITUTED D-1A INSTEAD.
II. INSUFFICIENT EVIDENCE EXISTS FROM WHICH REASONABLE JURORS COULD HAVE FOUND THE APPELLANT GUILTY OF CHARGES OF BURGLARY OF AN AUTOMOBILE.
III. THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT’S MOTION FOR A DIRECTED VERDICT OR HIS MOTION FOR A NEW TRIAL.

¶2. Concluding that all of Coleman’s issues are without merit, we affirm.

FACTS

¶ 3. On May 31, 1999, David Churchill drove his vehicle to Dixie Glass Company in Harrison County, Mississippi to have a crack in his windshield repaired. His vehicle contained ten speakers of different brands, including Kenwood, JVC, and Bose. The JVC 6X9 speakers were custom installed.

¶ 4. Matthew Tomb worked at Dixie Glass, and after he got off that evening, he received a call to return to work. When he arrived back, he saw a person standing by the passenger side of .Churchill’s vehicle. As. Tomb pulled into the parking lot, the person jumped to the front of the vehicle and crouched down. Tomb then stopped his vehicle, and when he put his vehicle in reverse, the person ran around to the front of the building. Tomb backed up around the building and saw the person crouched behind an air-conditioning unit. At this time, Tomb was six feet away from the person. This person then jumped up and ran in the opposite direction away from Tomb. Tomb saw that this person was carrying a number of items with some wires hanging from them, but due to the darkness, he could not identify the items that the person was carrying. The person then ran into a field next to Dixie Glass, and Tomb watched him drop an item that later was discovered to be an automobile speaker.

¶ 5. Officer Michael Shaw, an officer with the Police Department of the City of Gulfport, received a call that night regarding a burglary at Dixie Glass. When Officer Shaw arrived at Dixie Glass, Tomb gave him a physical description of the person that Tomb had seen and chased a short time earlier. Tomb described the person as a dark-complexioned man with short-cropped hair, in his twenties or thirties, standing over six feet tall, and probably weighing 200 pounds.

¶ 6. While Officer Shaw was taking the report and processing the burglarized vehicle, four speakers were recovered from the field where Tomb saw the suspect enter. Officer Shaw did not lift any fingerprints from the recovered speakers, nor did he lift any fingerprints from the speakers that were still inside Churchill’s vehicle. Officer Shaw did attempt to lift fingerprints from the vehicle itself, but no prints could be recovered.

1f 7. On June 2, 1999, Travis Byrd, another officer with the Gulfport Police Department, saw a suspicious vehicle in the vicinity where the burglary of Churchill’s vehicle occurred. Several burglaries had occurred on a nearby construction site, and officers were on alert to watch the area closely. The driver of the vehicle was Leroy Coleman. Byrd stopped the vehicle and questioned Coleman because he had seen his vehicle leaving the area near the construction site. During the questioning, Officer Byrd learned that Coleman did not have a driver’s license and was wanted by the City of Gulfport for old fines. Officer Byrd then arrested Coleman and waited for the old fines officer to arrive. During this same time, Officer Byrd searched Coleman’s vehicle and its trunk. Coleman did not have a key to open the trunk, so Officer Byrd pulled the back seat up to gain access to the trunk. Officer Byrd found several small speakers inside the trunk.

¶ 8. Officer Shaw was called to Coleman’s vehicle after it had been stopped by Officer Byrd. Once on the scene, Officer Shaw recognized a speaker that closely resembled one of the speakers that had been in Churchill’s vehicle. Officer Shaw then went to Dixie Glass to confirm if the speakers were identical. The two speakers were of the same brand, in a box that was similar in design and carpeting, and had similar wiring. The serial numbers on the speaker were apart in sequence by nine numbers. The serial numbers were 15215B for one speaker and 15224B for the other speaker.

¶ 9. When questioned about the speakers, Coleman stated that they belonged to him and that he had had the speakers for approximately two months. Later, Churchill identified the speaker retrieved from Coleman’s vehicle as belonging to him.

¶ 10. Tomb was shown a photographic lineup, and he identified Coleman as the person that he had seen at Dixie Glass on the night of the burglary, although he was not one hundred percent positive of the identification.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Jury Instruction D-l

¶ 11. “In determining whether error lies in the granting or refusal of vari-eras instructions, the instructions given must be read as a whole. When so read, if the instructions fairly announce the law of the ease and create no injustice, no reversible error will be found.” Coleman v. State, 697 So.2d 777, 782 (Miss.1997).

¶ 12. Coleman submitted jury instruction D-l regarding identification. The State objected to the first paragraph of D-1, and the trial court sustained the State’s objection. In lieu of instruction D-l, the court allowed instruction D-1A which contained the same language as D-l but omitted the first paragraph of D-l. Coleman objected to the deletion of the first paragraph. Instruction D-l, as originally proposed by Coleman reads:

The Court instructs the jury that in reaching your verdict you are to consider all the evidence concerning the entire case and the circumstances surrounding the crime. One of the issues in this case is the identification of LEROY COLEMAN as the perpetrator of the crime. As with each element of the crime charged, the State has the burden of proving identity beyond a reasonable doubt, and before you may convict LEROY COLEMAN you must be satisfied beyond a reasonable doubt of the accuracy of the identification of LEROY COLEMAN. If, after considering all the evidence concerning the crime and the witness’ identification of LEROY COLEMAN as the person who committed the crime, you are not convinced beyond a reasonable doubt that he is the person who committed the crime, then you must find him not guilty.
Identification testimony is an expression of belief or impression by the witness. You must judge its value and reliability from the totality of the circumstances surrounding the crime and the subsequent identification. In appraising the identification testimony of a witness, you should consider the following:
1. Did the witness have an adequate opportunity to observe the offender?
2. Did the witness observe the offender with an adequate degree of attention?
3. Did the witness provide an accurate description of the offender after the crime?
4. How certain is the witness of the identification?
5. How much time passed between the crime and the identification?
If, after examining the testimony and the evidence, you have reasonable doubt that LEROY COLEMAN was the person who committed the crime, then you must find LEROY COLEMAN not guilty.

¶ 13. The italicized portion represents that portion which was objected to by the State and stricken by the trial judge. Coleman did object to the substitution of jury instruction D-l but assigns no error to the trial judge in striking a portion of it. Rather, Coleman emphasizes that the stricken portion is appropriate in Mississippi as a result of the Mississippi Supreme Court’s ruling in Davis v. State, 568 So.2d 277, 280 (Miss.1990). The italicized portion of the instruction does correctly state our case law and could have been granted. Id. Nonetheless, there was no reversible error committed in the trial judge’s decision to sustain the State’s objection. Coleman does not argue that he was harmed or prejudiced by the exclusion of the first paragraph of instruction D-l. He only contends that he was entitled to the inclusion of the paragraph. Following our standard of review, we find that the substituted jury instruction fairly announces the law and creates no injustice to Coleman.

¶ 14. Furthermore, the trial court in this case properly instructed the jury through instruction S-1A and C-3 that the jury must acquit unless it found that the State proved beyond a reasonable doubt that Coleman broke and entered Churchill’s vehicle. When the trial court charges the jury on proving the elements beyond a reasonable doubt it has then placed the issue of possible misidentifícation before the jury. Smith v. State, 802 So.2d 82, 88(¶20) (Miss.2001). The supreme court has held that the jury considers the mis-identification issue even in the absence of a specific instruction to that effect. Id.

¶ 15. We find that Coleman’s argument is without merit and that the trial court did not commit reversible error in substituting jury instruction D-1A for instruction D-l.

2. The Sufficiency of the Evidence

¶ 16. In reviewing a claim of insufficient evidence, an appellate court must review all of the evidence in the light most consistent with the jury’s verdict. Id. at 85(¶ 10). The prosecution is given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id. “If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable [persons] could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required.” Mangum v. State, 762 So.2d 337, 341(¶11) (Miss.2000).

¶ 17. Coleman propounds that it was error to use Tomb’s identification as direct evidence to show Coleman’s culpability. Coleman stresses particularly the fact that Tomb, when presented with a photographic line-up within a day or two after the burglary, was not one hundred percent positive that Coleman was the perpetrator, while at trial Tomb identified Coleman as being the person he observed at Churchill’s vehicle. Coleman attacks Tomb’s credibility by emphasizing that Tomb was not certain of his identification within days of the burglary, but one and one half years later Tomb was able to make an in-court identification with certainty. Coleman also attacks the amount of weight given to the fact that a speaker was found in his trunk and points to the fact that there were no prints lifted from the speakers taken from his vehicle or the speakers inside Churchill’s vehicle. He contends that the speaker taken from his trunk was identified as Churchill’s primarily on appearance and similarity to the speakers stolen from Churchill’s vehicle.

¶ 18. The issues that Coleman presents go toward the weight and credibility of the evidence, and those are factual issues that are determinations for the jury. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The jury is charged with the responsibility of resolving any inconsistencies in identification. Kimbrough v. State, 379 So.2d 934, 936 (Miss.1980). The jury found that Tomb’s identification of Coleman was credible and that the speaker found in Coleman’s trunk belonged to Churchill. Adherence to our standard of review leaves this Court no alternative but to leave those findings undisturbed.

3. The Denial of Motion for a New Trial

¶ 19. As distinguished from a directed verdict, a motion for new trial asks to vacate the judgment on grounds related to the weight, not the sufficiency of the evidence. Smith, 802 So.2d at 85—86(¶11). An appellate court’s standard of review for claims that a conviction is against the overwhelming weight of the evidence is as follows:

[This Court] must accept as true the evidence which supports the verdict and will reverse only when convinced that that circuit court has abused its discretion in failing to grant a new trial. A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice.

Mangum, 762 So.2d at 342 (¶¶ 12-13).

¶ 20. We have already discussed the evidence offered against Coleman. We will not repeat it here. It is adequate to say that the evidence was sufficiently strong to support the jury’s verdict. We see no basis to conclude that the trial court abused its discretion in not granting a new trial or that leaving the verdict intact will sanction an unconscionable injustice. Therefore, we find that this issue is without merit. Consequently, we affirm the trial court on this issue, as well as all others presented.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HARRISON COUNTY OF THE CONVICTION OF BURGLARY AND SENTENCE OF SEVEN YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . Officer Shaw testified that when the speakers were recovered from the field on the night of the burglary, he did not take any prints off the speakers. He did attempt to take prints from Churchill’s vehicle but no prints were recovered.


author: GRIFFIS, J.,

text:
    Sondra Robin Howell BRAWDY, Appellant v. Brett Alan HOWELL, Appellee.
    No. 2002-CA-00501-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.

      William W. Dreher, Jr., Gulfport, for appellant.
    Deborah Kay Hester, for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   GRIFFIS, J.,

FOR THE COURT:

¶ 1. In 1999, Sondra Robin Howell Brawdy (“Brawdy”) and Brett Alan Howell (“Howell”) obtained an irreconcilable differences divorce. After several modification orders were entered, Howell filed a petition for modification and Brawdy filed a counterclaim. After a hearing, the Harrison County Chancery Court found Howell in contempt for unpaid child support and ordered Brawdy to pay monthly child support. Brawdy appeals the chancellor’s ruling and alleges that the chancellor erred by ordering her to pay child support, by assessing interest at a rate of three percent (3%) per annum for child support payments in arrears, and in failing to deny Howell’s petition for modification based on the clean hands doctrine. Finding that the chancellor abused his discretion in the award of child support, we reverse and render in part, and in finding no error in the other presented issues, we affirm in part.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 15, 1999, Howell and Brawdy were divorced. The chancellor accepted and entered the parties’ agreed judgment, which incorporated a property settlement and child support agreement. According to the judgment, they were to share joint legal custody of their two minor children with Brawdy having paramount physical custody. Howell was ordered to pay Brawdy monthly child support of $270 per child.

¶ 3. In August 1999, the parties returned to court and filed a joint petition seeking modification of the original judgment. On August 24, 1999, the chancellor entered an agreed order that granted Howell custody of their oldest child and reduced his child support obligation by one-half. At this time, Brawdy had remarried and moved to Utah.

¶ 4. On March 30, 2001, the chancellor entered a second agreed order of modification that awarded Howell paramount physical custody of the younger child and terminated his remaining child support obligation to Brawdy. This order, prepared and submitted to the chancellor by Howell’s attorney, did not require Brawdy to pay Howell child support.

¶ 5. Approximately five and a half months later, on September 12, 2001, Howell filed a motion for modification that asked the chancellor to order Brawdy to pay child support, provide major medical insurance coverage for the children, provide automobile insurance, provide a life insurance policy naming the children as irrevocable beneficiaries, and allow Howell the right to claim the children for tax purposes.

¶ 6. Brawdy counterclaimed and asserted that Howell was in contempt because he owed back child support and, therefore, lacked the “clean hands” required to obtain equitable relief. Brawdy alleged that (1) Howell was in arrears for child support that was due prior to the March 30, 2001 agreed order; (2) the older son was emancipated and, therefore, no child support should be paid for his benefit; (3) she was financially unable to provide support for the younger son; and (4) for the return of custody due to Howell’s lack of supervision.

¶ 7. After a hearing, on March 8, 2002, the chancellor ordered Brawdy to pay Howell child support in the amount of $275 per month for the younger son, granted Howell the right to claim Jeremy as a tax exemption for the year 2001 and each year thereafter, found Howell to be in contempt of court and granted judgment in the amount of $3,967.68 plus interest at the prevailing rate of three percent (3%), and allowed Brawdy to offset her child support obligation against Howell’s arrearage until it is eliminated. The chancellor further held that Brawdy did not have to maintain health, life or automobile insurance and that the older son was emancipated.

STANDARD OF REVIEW

¶ 8. This Court’s scope of review in domestic relations is strictly limited. We will not disturb the findings of a chancellor unless we find an abuse of discretion, an erroneous application of the law or a manifest error. Andrews v. Williams, 723 So.2d 1175(¶ 7) (Miss.Ct.App.1998). If we find substantial evidence in the record to support the chancellor’s findings, we will not reverse. Wilbourne v. Wilbourne, 748 So.2d 184(¶ 3) (Miss.Ct.App.1999).

ANALYSIS

I. WHETHER THE COURT COMMITTED MANIFEST ERROR AND ABUSED ITS DISCRETION IN ALLOWING HOWELL TO MODIFY THE JUDGMENT OF DIVORCE WITHOUT SHOWING A MATERIAL AND SUBSTANTIAL CHANGE IN CIRCUMSTANCES.

¶ 9. Decisions regarding modification of child support are normally within the discretion of the chancellor. Reversal is permitted only if there is manifest error in findings of fact or an abuse of discretion. Powell v. Powell, 644 So.2d 269, 279 (Miss.1994). “The process of weighing evidence and arriving at an award of child support is essentially an exercise in fact-finding, which customarily significantly restrains this Court’s review.” Clausel v. Clausel, 714 So.2d 265, 266-67 (¶ 6) (Miss.1998). Using these standards, we review the chancellor’s decision.

¶ 10. In modifying the previous agreement and awarding child support, the chancellor found that “there has been an increase in expenses for Jeremy due to his advanced age” and that “Brawdy still has a duty to support her child.” The chancellor ordered Brawdy to pay child support for Jeremy at the rate of fourteen percent (14%) of her adjusted gross income, $275 per month, and to be equally responsible for all deductibles and out-of-pocket medical expenses for the younger child.

¶ 11. Mississippi law on modification of divorce decrees is well settled. “A child support award can be altered if it can be shown that there has been a substantial or material change in the circumstance of one or more of the interested parties: the father, the mother, and the child or children, arising subsequent to the entry of the decree to be modified.” Over- street v. Overstreet, 692 So.2d 88, 92 (Miss.1997). The substantial or material change must occur as a result of after-arising circumstances of the parties not reasonably anticipated at the time of the previous agreement. Tingle v. Tingle, 573 So.2d 1389, 1391 (Miss.1990); see Meeks v. Meeks, 757 So.2d 364, 367 ( ¶9) (Miss.Ct.App.2000) (This Court has held that justification for the change must “be events for which allowance could not reasonably have been made at the time of the previous ruling.”).

¶ 12. Furthermore, the party seeking modification must present “proof on the issue of the unexpected nature to the changes in circumstances.” Id. at 367 (¶ 11). Such burden may be met by “showing a significant increase in the cost of goods or services or by a specific showing of needs not previously existing.” Turner v. Turner, 744 So.2d 332, 336 (¶ 17) (Miss.Ct.App.1999).

¶ 13. In the present case, Howell sought to modify the March 30, 2001 agreed order by requesting child support due to an alleged material change in circumstances. To support his claim, Howell testified that “the boys have gotten older and more expensive.” Howell offered no other evidence to support this allegation.

¶ 14. We recognize that increased age and proven expenses may be considered a material change in circumstances. Kilgore v. Fuller, 741 So.2d 351, 353 (¶ 7) (Miss.Ct.App.1999). In this case, however, there was no evidence offered to prove what expenses had increased in the five months (or one year) since the previous order. Howell simply made a general characterization that the costs associated with his sons have increased. “This general pronouncement, unsubstantiated by specific proof, does not rise to the level of a material change in circumstances warranting modification of child support.” Turner, 744 So.2d at 336 (¶ 18).

¶ 15. As stated above, to allow a modification, the material change in circumstances must not have been anticipated at the time of the prior ruling. Tingle, 573 So.2d at 1391. Here, the prior ruling was entered on March 30, 2001, approximately five months before the motion for modification was filed and less than a year before the hearing. Yet, there was no evidence to suggest that the alleged material change of circumstances, i.e. the boys are of greater age and more expensive, was not anticipated or foreseeable at the time of the earlier order. Accordingly, we find that the chancellor abused his discretion in finding that there was a material or substantial change in circumstances to justify an increase in the child support obligation.

¶ 16. In all child custody and child support matters, the best interest of the child or children is paramount. The present case presents this Court with a very difficult and perplexing issue. Frankly, we are disturbed by the fact that the chancellor, in the March 30, 2001 order, changed custody but did not likewise impose a child support obligation on Braw-dy as the non-custodial parent. Chancellors should be reluctant to enter orders that do not require a non-custodial parent to pay an appropriate amount of child support. However, we are mindful that Miss. Code Ann. § 93-11-65(2) (Supp.2002) grants the chancellor the authority and discretion to order each parent to contribute to the support and maintenance of the children. Nevertheless, an order that does not require a non-custodial parent to pay child support should be entered only in rare circumstances. The chancellor should also include detailed findings in the order to support the decision to relieve a non-custodial parent from their financial obligation to support their children. Knutson v. Knutson, 704 So.2d 1331, 1334 (Miss.1997).

¶ 17. We are persuaded in this case by the fact that the March 30, 2001 order was prepared and presented to the court by Howell and his attorney. It is evident that Howell and his attorney asked Brawdy to agree to the change in custody, asked her to sign the agreed judgment which she did, and failed to include any provision for child support in the agreed judgment. Thus, by presenting the agreed judgment, Howell and his attorney represented to the chancellor that the provisions of the March 30, 2001 order were adequate and sufficient to provide for the custody and maintenance of the children of the marriage. See Miss. Code Ann. § 93-5-2 (Rev.1994). Accordingly, Howell represented that he was in a position to undertake the full financial obligation to support his children.

¶ 18. Indeed, we refuse to sanction the conduct of Howell. By filing the petition for modification less than six months after the entry of the March 30, 2001 order, Howell directly attacked the judgment he procured and asked the chancellor to enter. His conduct is more closely related to relief under M.R.C.P. 60, which would not be allowed.

¶ 19. We find that the chancellor abused his discretion and erred as a matter of law in granting Howell’s request for modification of child support. Therefore, finding the chancellor in error, we reverse and render a judgment denying the petition for modification as to the amount of Brawdy’s child support obligation. The March 30, 2001 order is reinstated as to the amount of child support owed by Brawdy.

II. WHETHER THE COURT ABUSED ITS DISCRETION AND WAS MANIFESTLY IN ERROR IN ASSESSING INTEREST ON THE JUDGMENT ENTERED AGAINST HOWELL AT THE RATE OF 3% PER ANNUM.

¶ 20. Brawdy asserts that the chancellor abused his discretion and was manifestly wrong in the judgment entered against Howell awarding interest at the rate of three percent (3%) on the child support arrearage. The chancellor had the discretion to set the rate of interest. Miss.Code Ann. § 75-17-7 (Supp.2000). Specifically, Section 75-17-7 provides that:

All judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair but in no event prior to the filing of the complaint.

(emphasis added).

¶21. In Adams v. Adams, 591 So.2d 431, 436 (Miss.1991), the Mississippi Supreme Court awarded an eight percent (8%) per annum rate of interest as past due child support payments. However, we find no authority holding it an abuse of discretion or manifest error for the chancellor to set interest at a rate of three percent (3%) per annum. Therefore, we find that the chancellor did not abuse his discretion as to this issue and this assignment of error is without merit. Therefore, we affirm the chancellor on this assignment of error.

III. WHETHER THE COURT WAS MANIFESTLY WRONG IN IGNORING THE CLEAN HANDS DOCTRINE IN GRANTING RELIEF UNTO HOWELL.

¶ 22. Brawdy also asserts that since Howell was in arrears of his child support payments, the “clean hands” doctrine prevented him from obtaining a modification. “The clean hands doctrine prevents a complaining party from obtaining equitable relief m court when he is guilty of willful misconduct in the transaction at issue.” Bailey v. Bailey, 724 So.2d 335, 337 (¶ 2) (Miss.1998). At the hearing, Brawdy testified that Howell was in arrears of his child support payments in the sum of $3,967.68. Howell conceded the arrearage, but expressed that he had a misunderstanding as to some of the payments. In finding that the clean hands doctrine did not apply, the chancellor reasoned that:

while [Howell] is technically in contempt for his failure to make child support payments up through the [o]rder of March 30, 2001, the [c]ourt finds that he is not in willful and contumacious contempt. If anything, there appears to have been a misunderstanding regarding the effect of the sometimes conflicting and sometimes silent provisions of the previous orders. Although the court declines to issue a finding of willful contempt, [Howell] is obligated to bring the amount of his arrearage current.

¶ 23. Upon review of the record, we find that the chancellor’s finding is supported by the testimony. “Contempt matters are committed to the substantial discretion of the trial court which, by institutional circumstance and both tempered and visual proximity, is infinitely more competent to decide this matter than we are.” Morreale v. Morreale, 646 So.2d 1264, 1267 (Miss.1994). Therefore, we hold that the chancellor’s finding that Howell was in contempt, but not willful contempt, was within his discretion. We further find that because Howell was not found to be in wilful contempt, the clean hands doctrine did not apply in this particular case. Thus, finding no error, we affirm the chancellor on this assignment of error.

¶ 24. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS AFFIRMED ON ALL ISSUES EXCEPT AS TO CHILD SUPPORT PAYMENTS; ONLY AS TO THAT ISSUE IS THE JUDGMENT REVERSED AND THE CAUSE RENDERED CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED AGAINST THE AP-PELLEE.

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

      . The chancellor that entered the March 30, 2001 agreed judgment was different from the chancellor who heard the motion for modification and entered the March 8, 2002 order.


author: CHANDLER, J„

text:
    Roger McCRAW, Appellant v. Linda Gale McCRAW, Appellee.
    No. 2002-CA-00562-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.

      Ranee N. Ulmer, Bay Springs, for appellant.
    Linda Gale McCraw, pro se, appellee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J„

FOR THE COURT:

¶ 1. Roger and Linda McCraw were granted a divorce in the Chancery Court of Jasper County on the ground of adultery committed by Linda. Primary custody of the four children was awarded to Linda. Roger now appeals the custody ruling of the lower court. Finding no error, we affirm.

FACTS

¶2. Roger and Linda McCraw were married on June 26, 1992. They had four children: two daughters, ages eleven and eight, and two sons, ages nine and six. On December 26, 1998, the parties separated. Roger moved out of the marital home and into his mother’s home. Since the separation, Linda has moved three times. The court entered a temporary order on September 15, 2000, providing Linda with temporary custody of the two daughters and Roger with temporary custody of the two sons.

¶ 3. During the separation, Linda was involved in two romantic relationships. On January 17, 2002, the chancellor granted a divorce on the ground of adultery committed by Linda, and awarded custody of the four children to Linda. Roger filed a post trial motion claiming the trial court erred in not granting him primary custody. The trial court overruled the motion, and Roger appeals. Finding no merit, we affirm.

LAW AND ANALYSIS

¶ 4. Linda failed to file a brief in response to Roger’s allegations. Generally, the failure to submit a brief on appeal is considered a tantamount confession of the errors alleged by the appellant. Muhammad v. Muhammad, 622 So.2d 1239, 1242 (Miss.1993). However, this Court is not required to automatically reverse the chancellor’s ruling. Id. In cases concerning child custody, the appellate court is compelled to review the record, despite a failure to file a brief. Id.

I. DID THE TRIAL COURT COMMIT MANIFEST ERROR IN AWARDING CUSTODY OF THE CHILDREN TO LINDA?

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

¶ 6. In a child custody case, the chancellor must keep the best interest of the child as his paramount concern. Albright v. Albright, 437 So.2d 1003, 1004 (Miss.1983). The Mississippi Supreme Court established eleven factors to aid our courts in making the determination of what is in the best interest of the child:

(1) age, health and sex of the child;
(2) a determination of the parent that has had the continuity of care prior to the separation;
(3) which has the best parenting skills and which has the willingness and capacity to provide primary child care;
(4) the employment of the parent and responsibilities of that employment;
(5) physical and mental health and age of the parents;
(6) emotional ties of parent and child;
(7) moral fitness of the parents;
(8) the home, school and community record of the child;
(9) the preference of the child at the age sufficient to express a preference by law;
(10) stability of home environment and employment of each parent and
(11) other factors relevant to the parent-child relationship.

Id. at 1005.

¶7. The court found three factors in favor of the mother and two factors in favor of the father. The other seven factors the court held were either neutral to both parents or irrelevant to the case. Roger contends that the chancellor should have found in favor of him on the factors of continuity of care, better parenting skills, employment of the parents, and health of the parents. He also contends that the chancellor should have granted more weight to Roger’s higher moral fitness and his more stable home environment.

(1) CONTINUITY OF CARE

¶ 8. The chancellor stated that Roger’s work schedule conflicted with his ability to care for the children. Roger testified that until three days before trial, he worked the night shift from 2:00 p.m. until 3:00 a.m. at Hoi-Mac Corporation. He acknowledged that Linda, prior to the separation, and Roger’s mother, during the temporary custody arrangement, had provided the majority of care for the children.

¶ 9. Roger argues that the judge did not take into consideration the change in his work schedule. His new schedule requires him to work from 5:00 a.m. until 3:30 p.m. Under his new schedule, Roger will be unavailable in the morning. We fail to see how this change should outweigh Linda’s proven record of continued care for the children.

(2) BEST PARENTING SKILLS

II10. Roger acknowledged that Linda had always done the majority of the cooking, cleaning and caring for the children. While it is true that Linda’s adultery does not conform with the traditional notion of good parenting skills, given the totality of the circumstances, the chancellor was not in error to conclude that Linda exhibited better parenting skills.

(3) EMPLOYMENT OF PARENTS

¶ 11. Roger stated that Linda’s dependance on her second boyfriend, Tyler Smith, for money was not stable. Linda did testify that Tyler paid the rent on her three bedroom mobile home. However, Linda stated that once the divorce was final, she and Tyler were to be married.

¶ 12. Roger also argued that the chancellor should have found in favor of him due to Linda’s lack of employment. She is currently enrolled at Bessemer State Technical College in Alabama, receiving a degree in computer science.

¶ 13. The chancellor stated that her schedule, unlike Roger’s schedule, allows her to be home with the children when they leave for school in the morning and when they arrive home in the afternoon.

(4) PHYSICAL AND MENTAL HEALTH OF THE PARENTS

¶ 14. The chancellor concluded that both parents were on equal footing regarding their mental and physical health. Roger asserts that the chancellor should have found in favor of Roger due to Linda’s previous commitment to a mental health facility for depression and for her surgery for cancer. At the time of trial, Linda was under no medication and had fully recovered from her operation. Nothing in the record indicated that Linda was physically or emotionally incapable of providing the primary care, custody, and control of the children.

(5) MORAL FITNESS OF THE PARENTS

¶ 15. The chancellor concluded that this factor weighed in favor of Roger. However, Roger asserts that the chancellor should have allocated more weight to this factor because of Linda’s adulterous relationships.

¶ 16. Linda admitted that she had been romantically involved with two different men after the separation. She admitted that she had spent the night at Tyler’s house; however, she denied ever sleeping in the same bed with him. She also stated that her daughters would spend the night with her at his home while he was working the night shift.

¶ 17. “[S]exual misconduct ... is not per se grounds for denial of custody.” Hollon v. Hollon, 784 So.2d 943, 949(¶ 25) (Miss.2001). A wife may still be awarded custody of the children even if the husband is granted a divorce on the grounds of adultery. Id. “Our cases well recognize that it may be in the best interest of a child to remain with its mother even though she may have been guilty of adultery.” Id. (citing Cheek v. Ricker, 431 So.2d 1139, 1144-45 (Miss.1983); Yates v. Yates, 284 So.2d 46, 47 (Miss.1973); Anderson v. Watkins, 208 So.2d 573 (Miss.1968); Schneegass v. Schneegass, 194 So.2d 214 (Miss.1966)).

¶ 18. No evidence was presented at trial regarding any detrimental effects the children may have suffered as a result of these affairs. The chancellor’s decision was correct as to this factor.

(6)STABILITY OF THE HOME ENVIRONMENT

¶ 19. The chancellor concluded that this factor weighed in favor of the father. The chancellor stated that the mother’s movement three times since the divorce contributed to this finding. Roger asserts that the chancellor should have allocated more weight to this factor.

¶ 20. The trial court found no evidence that Linda was unfit to care for the children. Also, there was no evidence presented regarding any detrimental effects the children were suffering as a result of living with their mother.

¶ 21. After weighing all the factors, the chancellor found that the best interest of the children would be served by granting primary custody to Linda. We find that the chancellor’s decision was supported by credible evidence; thus, we affirm.

¶ 22. THE JUDGMENT OF THE JASPER COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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


author: KING, P.J.,

text:
    Jerry Allen TAYLOR, Appellant v. STATE of Mississippi, Appellee.
    No. 2001-KA-01736-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.
    Barney Glenn Folse, Jackson, for appellant.

      Office of the Attorney General by John R. Henry, for appellee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   KING, P.J.,

FOR THE COURT:

¶ 1. Jerry Allen Taylor was found guilty by the Circuit Court of Scott County, Mississippi of the possession of more than two grams but less than ten grams of methamphetamine. He was sentenced to a term of sixteen years in the custody of the Mississippi Department of Corrections, with two years suspended, leaving fourteen years to serve, and placed on probation for two years, and ordered to pay a fine and costs. Aggrieved by his conviction, Taylor has appealed and raised the following issues:

I. Whether the trial court erred by granting the State’s jury instruction S-3, on constructive possession.

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

FACTS

¶ 2. On September 6, 2000, Officer Patrick Ervin of the Scott County Sheriffs Department along with Officers Jeff Crev-itt, Kim Dearman and Gerald Greer, conducted a surveillance of the Durham Chicken Farm on Old Jackson Road in Scott County and a trailer house (which was occupied by David and Sandra Delk) located on the property. The surveillance, which lasted eight days, was conducted due to the number of narcotics arrests in the area. In conducting the surveillance, the officers positioned themselves in a field and used night vision devices to note license plate numbers on the cars entering and leaving the place.

¶3. One night during the surveillance, the officers saw four men walking toward the chicken houses. Officer Ervin recognized one of the men as Jerry Taylor. Taylor was dressed in a B.C. Rogers company uniform shirt bearing his first name. As the officers continued to observe the movements of these individuals (Taylor, his son, Taylor’s brother, Donald, and David Delk), the officers detected the smell of ether coming from a ventilation duct of one of the chicken houses and therefore suspected that a “cook” was taking place. After determining which chicken house the odor was emanating from, Officer Greer left to obtain a search warrant.

¶ 4. Upon Officer Greer’s return, the other officers proceeded to secure the area for the search. Officers Ervin and Dear-man detained Taylor’s son and David Delk who were located in one of the chicken houses. Officers Greer and Crevitt entered the trailer and searched it. Officer Crevitt found Taylor in the bathroom taking a shower, and requested that he get out of the shower. At this time, Officer Greer found a weapon beneath the headboard of a bed adjacent to the bathroom. Taylor put on his pants and sat on the bed in the room adjacent to the bathroom. Taylor asked Officer Greer for his shirt, which was lying on the bathroom sink. Greer retrieved the shirt which had Taylor’s first name and the company (B.C. Rogers) for which he worked. He searched the pocket, and found two bags of a substance believed to contain methamphetamine. Brandi Goodman of the Mississippi Crime Lab tested this substance and determined that it contained methamphetamine with a total weight of 6.37 grams.

¶ 5. At trial, Taylor testified that he recognized the shirt which had the inscription “B.C. Rogers, Maintenance, Jerry,” but denied any knowledge of the bags of substance. He also denied going to the trailer during the surveillance period. He did acknowledge that he went to the trailer at 3:00 a.m. to discuss a personal matter with his sister-in-law concerning his niece, after which he decided to take a shower. He indicated that he had many items of clothing at his sister-in-law’s trailer and that it may have been his son, who had the same build and appearance, who wore his shirt earlier that evening. Taylor specifically denied being aware of narcotics on the premises.

¶ 6. At trial on October 16, 2001, Taylor was found guilty of possession of methamphetamine, a Schedule I controlled substance. Taylor then filed a motion for judgment notwithstanding the verdict, which was denied. His motion for bail pending an appeal was denied as well.

ISSUES AND ANALYSIS

I.

Whether the trial court erred by granting the State’s jury instruction S-3 on constructive possession.

¶ 7. Taylor contends that the trial court erred by granting the State’s constructive possession jury instruction S-3. He claims the instruction contains a “misstatement of what constitutes constructive possession and has no basis in binding case law.”

Jury instruction S-3 stated:

The Court instructs the jury that if you believe from the evidence in this case beyond a reasonable doubt that at the time and place charged in the indictment and testified about that the defendant, Jerry Allen Taylor, although not having the substance for which he is charged in his physical possession, did however have knowledge of such substance and did have dominion and conscious control of such substance, then, and in that event, the defendant is guilty of actual possession of such substance and it is your duty to find said defendant guilty as charged.

¶ 8. Taylor objected to the S-3 instruction. However, the trial court approved the giving of S-3, as noted by the following colloquy:

THE COURT: So, what is the — so I will call it then for the State’s S-3. What does the defendant say to S-3, which is an instruction on constructive possession?
MR. FOLSE (for the defendant): For the record, we object.
THE COURT: All right. Any response on that?
MR. THAMES: I think it’s a good instruction, Judge.
THE COURT: Well, the Court feels that the evidence very clearly shows the proof of constructive possession.
MR. FOLSE: Yes, sir.
THE COURT: I think that is before the jury so I am going to give it. Okay. Any instructions from the defendant?

Constructive possession has been explained as follows:

[Tjhere must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject due to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.
The theory was further defined in Hamburg v. State, 248 So.2d 430, 432 (Miss.1971), that “one who is the owner in possession of the premises ... is presumed to be in constructive possession of the articles found in or on the property possessed.” This presumption is re-buttable, however, and does not relieve the State of its burden to prove guilt beyond a reasonable doubt. Id. Thus, “[w]here the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband.” Powell v. State, 355 So.2d 1378, 1379 (Miss.1978). See also Keys v. State, 478 So.2d 266, 268 (Miss.1985).

Guerrero v. State, 746 So.2d 940 (¶¶ 17-18) (Miss.Ct.App.1999).

¶ 9. In evaluating jury instructions, this Court must review in the following manner:

In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.

Fultz v. State, 822 So.2d 994(¶ 11) (Miss.Ct.App.2002) (citation omitted).

¶ 10. In reviewing the instructions as a whole, we find that the S-3 instruction was an adequate representation of the law and find no error in the trial court’s decision.

II.

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

¶ 11. Taylor contends that the verdict was against the overwhelming weight of the evidence. He also claims that the evidence presented was insufficient to allow a guilty verdict. Taylor maintains that the trial court should have granted his motion for a directed verdict.

¶ 12. This Court’s standard for reviewing challenges to convictions based on the weight of the evidence is well established. The trial judge is given wide discretion to order a new trial in the face of overwhelming evidence contrary to the jury’s verdict in order to prevent an unconscionable injustice. McClain v. State, 625 So.2d 774, 781 (Miss.1993).

¶ 13. As to each element of the offense, we consider all of the evidence in the light most favorable to the verdict. Frazier v. State, 770 So.2d 986(¶ 6) (Miss.Ct.App.2000). We reverse when, with respect to an element of the offense charged, the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty. Id.

¶ 14. In support of his contention that the verdict is against the overwhelming weight of the evidence, Taylor asserts that there were contradictions as to the location of the shirt when it was recovered by the police officers. He claims that Officer Er-vin stated that “the shirt was recovered from a bedroom,” and that he later stated that “the shirt was found on top of a bathroom cabinet.” However, Officer Greer, who retrieved the shirt, indicated that the shirt was initially in the bathroom and that he placed the shirt on the bed in the bedroom to photograph it along with the substance found in the pocket of the shirt.

¶ 15. Taylor also claims there was confusion concerning the quantity of the substance found. Officer Ervin indicated that 7.2 grams was found in the shirt. The offense report listed the total package weight as 31.3 grams. Brandi Goodman of the Mississippi Crime Lab stated that the substance inside the bags weighed 6.37 grams.

¶ 16. Taylor argued that the State did not show that he had knowledge of any illegal substance on the premises. Taylor also asserts that the State failed to prove that the shirt which contained the substance had been worn by him. When questioned by the State, Taylor denied having any knowledge of narcotics on the premises. Officer Crevitt testified that during surveillance of the area he had seen Taylor wearing the same shirt in which the drugs were found.

¶ 17. The State put forward evidence from which the jury could find Taylor in constructive possession of drugs. For his part, Taylor denies both knowledge and possession of the drugs. Clearly there exists a factual dispute between the evidence presented by the State and Taylor. As to matters upon which the evidence was in conflict, the court should assume that the jury resolved the conflict in a manner consistent with the verdict. Craig v. State, 777 So.2d 677(¶ 10) (Miss.Ct.App.2000).

¶ 18. Accordingly, we find that the jury’s verdict was not inconsistent with the evidence presented and affirm the trial court’s decision.

¶ 19. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF MORE THAN TWO GRAMS BUT LESS THAN TEN GRAMS OF METHAMPHETAMINE AND SENTENCE OF SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO YEARS SUSPENDED ON PROBATION AND A FINE OF $20,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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


text:
    Robert E. BRIDGES, Appellant v. STATE of Mississippi, Appellee.
    No. 2001-KA-01078-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.

      Paul McGerald Luckett, McComb, for appellant.
    Office of the Attorney General by Deirdre McCrory, for appellee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   KING, P.J.,

FOR THE COURT:

¶ 1. Robert E. Bridges was convicted of burglary of a dwelling in the Circuit Court of Pike County, Mississippi. He was sentenced to a term of twenty-five years in the custody of the Mississippi Department of Corrections and ordered to pay a fine and court costs. Aggrieved by his conviction, Bridges has appealed and raised the following issues:

I. Whether the verdict was against the overwhelming weight and sufficiency of the evidence.

II. Whether the repeated biblical references by Mr. E.J. Williams resulted in an unfair trial for Bridges.

FACTS

¶ 2. On July 8, 2000, Officer Gregory Patterson of the McComb Police Department investigated a reported burglary at the home of Rev. and Mrs. E.J. Williams. Officer Patterson noticed that two windows had been broken out, and there were palm prints on an interior table.

¶ 3. According to Williams, the intruder gained entry to his home by breaking the dining room window. The burglar apparently cut himself since there was blood on the glass. Once in the house, the burglar broke into the master bedroom, and stole $30 from Williams’ brief case.

¶ 4. Officer Greg Martin, a crime scene analyst with the McComb Police Department, photographed the crime scene, and lifted several latent prints from the glass, which were sent to the state crime lab for identification. The lab fingerprint examiner testified that those identifiable prints matched the fingerprint card of Robert E. Bridges.

¶ 5. Williams testified that Bridges had been employed by him for about four weeks, but had been discharged. According to Mrs. Williams, in a January 2001 conversation, she heard Bridges admit to her husband that he broke into their home.

ISSUES AND ANALYSIS

I.

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

¶ 6. Bridges contends that the verdict was against the overwhelming weight and sufficiency of the evidence. He maintains that “the State relied heavily on fingerprints that were found inside Williams’ home,” which was not sufficient evidence to support the verdict. He also argues that none of the State’s witnesses were actual eyewitnesses to the incident. It should be noted that an actual eyewitness is not mandatory for conviction. Freeman v. State, 228 Miss. 687, 697, 89 So.2d 716, 720 (1956).

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

Baker v. State, 802 So.2d 77(¶ 14) (Miss.2001) (citations omitted).

¶ 7. In this instance, Bridges admitted that he broke one of the windows of the Williams’ home. Mr. Williams testified that Bridges admitted to breaking into his home:

A. And he — then he said, I didn’t break in there. And May said, yes, you did. I told you not to — not to break them windows. Then he said, I’m sorry. I wasn’t intended [sic] to break into your house. I’ll pay you for your windows and I’ll pay you for your brief case. And I’ll give you your money back when my income tax check come.

Mrs. Williams testified that she heard Bridges admit to her husband that he broke into their home. The latent fingerprint examiner indicated that the fingerprints retrieved from the crime scene matched the prints on the card bearing the name of Robert E. Bridges.

In reviewing challenges to the sufficiency of the evidence, this Court must consider all of the evidence in a light most favorable to the State. The credible evidence consistent with [a defendant’s] guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Matters regarding the weight and credibility of the evidence are to be resolved by the jury. We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

McClain v. State, 625 So.2d 774, 778 (Miss.1993) (citations omitted).

¶ 8. Bridges argues that the evidence is insufficient because the testimony of the State’s witnesses does not establish all of the elements of the crime of burglary. Bridges does not state which element was absent of support. He states that no one testified that they saw him break and enter Williams’ home.

¶ 9. However, Bridges admitted through his testimony, that he did in fact break a window at Williams’ home. According to the officers, Bridges’ fingerprints were located on the glass and matched the fingerprints on the card bearing Bridges’ information from the police department. Williams and his wife both testified that Bridges admitted that he committed the offense. That evidence was sufficient to allow a jury to resolve issues of credibility against Bridges, and return a verdict of guilty. Alexander v. State, 811 So.2d 272(¶ 12) (Miss.Ct.App.2001). Unless, our review of the record leads us to conclude that no rational juror could have found Bridges guilty, this Court is obligated to affirm. Id. at (¶ 13). In this case, the record does not lead us to that conclusion.

II.

Whether the repeated biblical references by Mr. EJ. Williams resulted in an unfair trial for Bridges.

¶ 10. Bridges contends that repeated biblical references made by Williams resulted in him receiving an unfair trial. During cross-examination, Williams was asked if he knew how Bridges’ fingerprints came to be in the house. Williams answered in the following manner:

BY THE WITNESS: No, sir. All I know that they came off the windows and a table inside where the blood was on [sic]. I don’t know if they went to the door and checked there for the whole — blood printed hand was on the door there. Blood printed hand was in the master bedroom on my wife’s closet door.
I wasn’t the policeman who [sic] taken the fingerprints. And I don’t believe that Mr. Martin would just come up out of the blue sky to Mr. Bridges’ fingerprints. I don’t — I don’t believe he would pin anything on him. I don’t believe that he would come up and show me a picture and ask me did I know a Robert Bridges out of the blue sky with fingerprints and everything with the grand jury. Just a minute, sir.
And you said, no, I wasn’t there when he done it. I wasn’t no eye witness to see him go in there.
But I will tell you this. I’m a man of God.
BY MR. LUCKETT (For the Defendant): Your Honor, we would ask that this—
BY THE COURT: Sustained.
BY MR. LUCKETT: — testimony be struck.
BY THE WITNESS: And if God would have — ■
BY MR. LUCKETT: Your Honor—
BY THE WITNESS: Just a minute.
BY THE COURT: Rev. Williams, when the lawyer objects you be quiet—
BY THE WITNESS: Yes, sir.
BY THE COURT: So let’s go on until— the motion is denied. But let’s go on with Mr. Luckett’s cross-examination at this time.

¶ 11. Bridges moved for a mistrial based on Williams’ references to God, at which time the State responded by saying that “I don’t know how else a preacher describes himself as a man of God.” According to the State, Williams’ credibility was being challenged regarding the accusations made by Bridges’ fiancee. The trial court agreed that “if he’s trying to defend his credibility, I don’t see anything wrong with it. I fail to see how your client’s been prejudiced in any shape, form, or fashion.” Nevertheless, the trial court offered to admonish the jury. Defense counsel unequivocally declined the circuit court’s offer to admonish the jury to disregard the testimony. Under these circumstances, we have held that there is no error requiring reversal. Buckley v. State, 511 So.2d 1354, 1357 (Miss.1987).

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAY A FINE OF $5,000 AND RESTITUTION OF $150 IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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


author: LEE, J.,

text:
    Frances Fant YARBROUGH, Appellant v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellee.
    No. 2002-CC-00510-COA.
    Court of Appeals of Mississippi.
    April 8, 2003.
    James David Moore, for appellant.
    B. Ray Therrell, II, for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   LEE, J.,

FOR THE COURT.

PROCEDURAL HISTORY AND FACTS

¶ 1. Frances Fant Yarbrough worked as a special education teacher with the Columbus Municipal School System for over twenty years, but she was fired in May 2001. A hearing was held in August 2001 before a referee, after which the referee determined Yarbrough was not entitled to unemployment benefits, since she was fired for misconduct. The board of review affirmed the referee’s finding, as did the Lowndes County Circuit Court. Yar-brough now appeals to this Court and raises the following issues: (1) Were the findings of the Employment Security Commission supported by substantial evidence? (2) Did the referee misapply the law in finding the appellant's unsatisfactory job performance acted to disqualify her from receiving unemployment compensation? and (8) Did the circuit court err in declining to reverse the commission? Having reviewed these issues, we find no error; thus, we affirm.

DISCUSSION

¶ 2. Appellant Yarbrough’s three stated issues all concern whether or not the referee’s decision was based on substantial evidence; thus, we combine the issues into one discussion. We initially look to our standard of review:

This Court’s standard of review of an administrative agency’s findings and decisions is well established. An agency’s conclusions must remain undisturbed unless the agency’s order 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights. A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. Lastly, this Court must not reweigh the facts of the case or insert its judgment for that of the agency.

Lewis v. Mississippi Employment Sec. Comm’n, 767 So.2d 1029(¶ 9) (Miss.Ct.App.2000).

¶ 3. The referee found, and the board of review and Lowndes County Circuit Court affirmed, that Yarbrough was discharged due to misconduct connected with her work. The referee’s opinion cites to Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982), for a definition of the term “misconduct.”

[T]he meaning of the term “misconduct,” as used in the unemployment compensation statute, was conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences [sic] and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered “misconduct” within the meaning of the statute.

¶ 4. The referee’s findings of fact refer to numerous instances of Yarbrough’s misconduct including her failure to follow approved procedures, inappropriate disciplinary techniques including corporal punishment of a special education student, failure to provide proper supervision of students, leaving her class unsupervised, and removing educational plans from the school in violation of school policy and federal regulations prohibiting such action, among other things. Beginning in 1998, Yarbrough participated in three plans for improvement in attempts to assist her in overcoming deficiencies in her job performance. These plans included counseling, attendance at workshops concerning behavioral management techniques, and assistance in designing an assertive discipline plan. Nevertheless, in April 2001 Yarbrough was suspended after the school principal personally saw Yarbrough at her car with certain forms which, by law, were not to be removed from the school. In May 2001, her employer recommended termination of employment, and after a July 2001 hearing the school board unanimously voted to uphold her termination.

¶ 5. Yarbrough rebuts some of the allegations and excuses her behavior as “good faith errors” or describes that her actions were taken in response to difficult situations in the classroom. She further argues that her termination was the result of unsatisfactory job performance and not willful or wanton misconduct, the latter of which would disqualify her from receiving unemployment compensation. The referee’s opinion states:

The facts in this case show that the claimant was discharged for unsatisfactory job performance. Claimant had been given several opportunities for improvement on procedures and policies that she was already aware of. Claimant’s failure to adhere to the proper procedures and policies resulted in her discharge. Claimant’s actions would rise to the level of misconduct as that term is defined by law ....

(emphasis added). Yarbrough’s argument fails to recognize the final emphasized sentence which shows the referee’s conclusion that Yarbrough’s acts all evidenced her intentional disregard of her duties and rose to the level of misconduct.

¶ 6. In our review of the facts of Yar-brough’s employment, we note that, although she might have made “good faith errors” on occasion as she claimed, she, nonetheless, showed a continuing disregard for the policies and procedures of her employer. As previously noted in our standard of review, a rebuttable presumption exists in favor of the administrative agency, and Yarbrough, as the challenging party, has the burden of proving otherwise. We are not permitted to reweigh the facts of the case or insert our judgment for that of the agency and having found substantial evidence to support the decision and having found no arbitrary or capricious action to exist on the part of the MESC, we affirm the circuit court.

¶ 7. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT IS AFFIRMED.

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

KING, P.J., CONCURS IN RESULT ONLY.