author: MYERS, J„

text:
    Roy ADAMS a/k/a Roy Lee Adams, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-00085-COA.
    Court of Appeals of Mississippi.
    May 14, 2002.
    Rehearing Denied July 23, 2002.
    Certiorari Denied March 27, 2003.

      Roy Adams, Pro Se Appellant.
    Office of the Attorney General By Charles W. Maris, Jr., Attorney for Appel-lee.
    Before KING, P.J., BRIDGES, MYERS, and CHANDLER, JJ.
   MYERS, J„

for the Court.

¶ 1. Roy Adams filed his petition for post-conviction relief claiming he received an illegal sentence. His petition, in the Circuit Court of Hinds County, Honorable W. Swan Yerger presiding, was dismissed as proeedurally barred. Adams now appeals. Finding no merit in his claims, we affirm.

FACTS

¶ 2. Roy Adams pled guilty in 1989 to possession with intent to distribute cocaine. He received a sentence of seven years in the custody of the Mississippi Department of Corrections but was released after successfully completing the RID program. Adams pled guilty in 1990 to a similar charge and was sentenced to ten years with nine years, five months and ten days suspended and five years supervised probation. In the year 2000, Adams filed for post-conviction relief claiming that he received an illegal sentence.

DISCUSSION

¶ 3. A petition for post-conviction relief must be filed within three years of conviction or, in this case, a guilty plea. Miss.Code Ann. § 99-39-5(2) (Supp.2001). Adams has missed his statutory window of opportunity to file his petition for post-conviction relief, as his petition was filed ten years after his plea. In addition, Adams’ assertion that he was harmed by receiving a suspended sentence is incorrect.

[I]t seems incontrovertible that the opportunity to have one’s sentence suspended and thereby remain free from incarceration is a substantial benefit rather than the kind of detriment that touches on an individual’s fundamental constitutional rights.

Williams v. State, 802 So.2d 1058, 1060 (¶ 6) (Miss.Ct.App.2001). It also follows that one must suffer harm before one can complain of an alleged error in the law. Id. at 1061. If any error occurred, it was harmless error as Adams “benefitfted] from an improperly lenient sentence.” Id. at (¶ 7).

¶ 4. The looming question, of course, is why then is Adams still in jail ten years after what he claims is his last guilty plea and sentence? The answer, gleaning what little we can from the sparse record, is that he violated the terms of his suspended sentence agreement less than a year after he made the same. The violation of this agreement landed him in jail with another pending criminal charge. The conviction of that crime, with the logical conclusion that his sentence was probably enhanced due to habitual status, is why he is still incarcerated. The only harm that came to Adams was at his own hand as the result of him being unable to keep himself from selling cocaine while on supervised probation.

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

McMILLIN, C.J., KING and SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, CHANDLER and BRANTLEY, JJ., concur.


source: Caselaw Access Project

author: THOMAS, J.,

license: Public Domain

text:
    Robert TUBWELL a/k/a Robert E. Tubwell a/k/a Robert Earl Tubwell, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-CP-01768-COA.
    Court of Appeals of Mississippi.
    June 18, 2002.
    Rehearing Denied Aug. 13, 2002.
    Certiorari Denied March 27, 2003.
    Robert Tubwell, Pro se appellant.
    Office of the Attorney General by Scott Stuart, for Appellee.
    Before KING, P.J., THOMAS, LEE, and IRVING, JJ.
   THOMAS, J.,

for the court.

¶ 1. Robert Tubwell, pro se, appeals an order of the Circuit Court of Hinds County, Mississippi denying his petition for post-conviction relief. Aggrieved, Tubwell perfected this appeal, raising the following issue as error:

THE LOWER COURT COMMITTED MANIFEST ERROR IN DISMISSING TUBWELL’S MOTION FOR POST-CONVICTION RELIEF.

Finding no error, we affirm.

FACTS

¶ 2. On July 6, 1989, Tubwell pled guilty to armed robbery. The trial court judge found Tubwell’s guilty plea to be voluntarily, intelligently and knowingly made. The trial court judge then sentenced him to serve a term of twenty years in the custody of the Mississippi Department of Corrections, with fifteen years suspended and five years of probation. On April 26, 2000, almost eleven years after entering a guilty plea, Tubwell petitioned the lower court for post-conviction relief. The lower court held this petition to be time barred.

ANALYSIS

DID THE LOWER COURT COMMIT MANIFEST ERROR IN DISMISSING TUBWELL’S MOTION FOR POST-CONVICTION RELIEF?

¶ 3. Mississippi Code Annotated § 99-39-5(2) (Supp.2001), states that:

A motion for relief under this article shall be made within three (3) years after the time in which the prisoner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction. Excepted from this three-year statute of limitations are those 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 have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at theftime 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. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

Id. Tubwell submitted his petition almost eleven years after offering a guilty plea. None of the above listed exceptions apply to the case at hand. Therefore, this assertion of error is without merit.

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

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


author: KING, P.J.,

text:
    COMPERE’S NURSING HOME and Mississippi Health Care Association, Appellants, v. Willie Jean HAMLEHDARY, Appellee.
    No. 2001-WC-01264-COA.
    Court of Appeals of Mississippi.
    Aug. 20, 2002.
    Rehearing Denied Nov. 12, 2002.
    Certiorari Denied March 27, 2003.

      Betty B. Arinder, Jackson, attorney for appellants.
    Floyd E. Doolittle, Jackson, attorney for appellee.
    Before KING, P.J., LEE, and IRVING, JJ.
   KING, P.J.,

for the Court.

¶ 1. This is an appeal by Compere’s Nursing Home and Mississippi Health Care Association (Compere’s) from a decision of the Hinds County Circuit Court affirming a finding of compensability by the Mississippi Workers’ Compensation Commission. In its appeal, Compere’s has raised the following issues (l)whether the Commission’s decision was based upon substantial evidence and (2)whether claimant’s disability resulted from a pre-existing injury.

¶ 2. Finding no merit in either of these issues, this Court affirms.

Facts

¶ 3. Willie Jean Hamlehdary was employed by Compere’s on August 6, 1997, as a certified nurse’s assistant. This position included helping patients in and out of bed, in and out of wheel chairs and in and out of showers. It required bending, pushing and lifting among other activities.

¶ 4. Approximately two weeks after being employed by Compere’s, Hamlehdary injured her back while lifting a patient. According to Hamlehdary, as she attempted to move the patient to a “jerry chair” the bed slipped. In order to prevent the patient falling to the floor, she had to manually lift the falling patient, and transfer him to the chair. In doing so, Hamleh-dary injured her back. She sought workers’ compensation benefits for this injury.

¶ 5. Hamlehdary had previously worked at Albemarle Health Care Center. While employed by Albemarle, Hamlehdary suffered a compensable back injury in June of 1994. As a result of this injury, she had back surgery in March of 1997.

Standard of Review

¶ 6. While this appeal comes from the Hinds County Circuit Court, it is really the decision of the Mississippi Workers’ Compensation Commission which this Court is asked to review. In doing so, this Court accords great deference to the actions of the Commission, and will only reverse it for an error of law, or when its decision is not supported by substantial evidence. Cornacchione v. Forrest County General Hospital, 755 So.2d 422(¶ 12) (Miss.Ct.App.1998). If there exists in the record substantial evidence which supports the Commission’s decision, this Court is obligated to affirm that decision, even though it might have reached a contrary decision given those facts. Lucas v. Angelica Uniform Group, 733 So.2d 285(¶ 8) (Miss.Ct.App.1998). The Commission is the finder of fact, and determines the weight and credibility to be accorded the evidence, and this Court is bound to accept that determination. Cornacchione, 755 So.2d at (¶ 17); City of Laurel v. Blackledge, 755 So.2d 573(¶ 20) (Miss.Ct.App.2000).

Resolution of The Issues

1. Whether the Commission’s decision was based upon substantial evidence

¶ 7. Compere’s argues that there was such conflicting evidence that the Commission’s finding of compensability could not have been based upon substantial evidence, and should therefore be reversed. Among the conflicts identified by Compere’s are (1) whether the injury happened on August 17 or 18, and (2) whether notice of the injury was given to Compere’s

¶ 8. Hamlehdary at one point indicated she was injured on Monday, August 18. The petition to controvert indicated that she was injured on Sunday, August 17. Compere’s offered testimony that Hamleh-dary was terminated for failure to report for work on Monday, August 18.

¶ 9. Hamlehdary testified to having informed her supervisor, “Ms. Gertrude,” of her injury. Compere’s offered the testimony of its administrator, Christopher Plumlee, and Shirley Lewis, a nursing supervisor, who testified that (1) Compere’s had no record of any injury to Hamleh-dary, and (2) that the person allegedly informed of the injury did not work on August 17.

¶ 10. The Commission, by adopting the administrative law judge’s findings, resolved this conflict by stating:

It is true that there is a fact discrepancy about exactly what date the lifting incident occurred at Compere’s — Ms. Hamlehdary thought the incident occurred on a Friday and that her last day of work was a Saturday when the nursing home records indicate her last day was Sunday, August 21, 1997, however, Dr. Smith’s notes indicate Ms. Hamleh-dary told Dr. Smith about low back pain and he noted she said she was “back at work at Compere’s Nursing Home doing lifting.”
Part of the problem is that Compere’s contends that Ms. Hamlehdary never reported a work injury and Ms. Hamleh-dary contends that she told her co-workers and supervisors that she hurt her back, and it certainly could be that both parties are correct. Ms. Hamlehdary apparently told her co-workers her back was hurting but never formally reported an on-the-job injury. Because of her long history of back trouble, she probably did not know whether the back pain was a continuation of previous back problems or a new incident.
* * * * * *
Medically, it is hardly important that Ms. Hamlehdary might have failed to report the alleged injury to Compere’s or that she mixed up her dates by a day or two.... Certainly, Dr. Alexander, a seasoned health care provider, is familiar with what nursing assistant do in rendering care to elderly patients in nursing homes. Additionally, Dr. Smith’s notes, while handwritten and sketchy, indicate that Ms. Hamlehdary told him about having to do lifting at Compere’s when she related her complaints of lower back pain on August 21, 1997.

¶ 11. The Commission noted the conflict in the evidence, and as trier of fact resolved that conflict. Tyson Foods, Inc. v. Thompson, 765 So.2d 589(¶ 10) (Miss.Ct.App.2000).

¶ 12. The resolution is not inconsistent with the evidence presented. Where the Commission’s decision is consistent with law, and supported by substantial evidence, we are mandated to affirm that decision. Id.; Georgia-Pacific Corp. v. James, 733 So.2d 875(¶ 8) (Miss.Ct.App.1999).

¶ 13. The Commission’s finding that Hamlehdary’s injury was compensable was both consistent with the law, and supported by the facts. Accordingly, this Court finds no merit in this issue.

2. Whether claimant’s disability resulted from a pre-existing injury

¶ 14. Compere’s next argues that Hamlehdary’s injury was pre-existing and should therefore be chargeable to her 1994 injury at Albemarle Health Center. The Commission, after considering the medical evidence, found this to be a second injury.

¶ 15. Dr. Lon Alexander, treated Ham-lehdary for both the 1994 and 1997 back injuries. Under questioning from the employer’s counsel, Dr. Alexander stated:

I think, looking at Willie’s convalescence, that she had nearly, or had reached the point of maximum medical improvement from her first surgery to the degree where she felt able to seek out a second employment; and, as such, I would deem her at maximum medical improvement. And what you have just described to me, knowing the rigors and physics of a total care patient, could have, indeed, re-ruptured a previously quiescent disc. So, again, this is an injury, described, that is a competent productive factor in what I found at the second surgery.

¶ 16. In further response to counsel for Hamlehdary on the issue of causation, Dr. Alexander stated:

Q: Assuming that history of an injury at Compere’s Nursing Home, would you agree, based upon a reasonable degree of medical probability, that the incident at Compere’s aggravated, accelerated or lit up Ms. Hamlehdary’s low back condition?
A: Yes, if it did not cause it to arise again, de novo. In other words, it either greatly worsened something that had healed, or something that was healed was caused to rupture again.

¶ 17. There exists substantial credible evidence to support the Commission’s finding that this was not a pre-existing injury. Where the Commission’s decision is supported by substantial evidence, this Court is obligated to affirm that decision. Marshall Durbin Companies v. Warren, 633 So.2d 1006, 1009 (Miss.1994); Hardin’s Bakeries v. Dependent of Harrell, 566 So.2d 1261, 1264 (Miss.1990). This issue is without merit.

¶ 18. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: McMILLIN, C.J.,

text:
    William Alton HESTER a/k/a William Alton Hester, Sr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00513-COA.
    Court of Appeals of Mississippi.
    Oct. 29, 2002.
    Rehearing Denied Dec. 17, 2002.
    Certiorari Denied March 27, 2003.

      Ross Parker Simons, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before McMILLIN, C.J., MYERS and CHANDLER, JJ.
   McMILLIN, C.J.,

for the Court.

¶ 1. William Hester was convicted of murder after a jury trial in the Circuit Court of Jackson County. On appeal he alleges these errors: (1) in different ways the grant of a manslaughter instruction violated his due process rights; (2) evidence of previous threats of violence by the victim should have been admitted to prove his violent character; (3) a mistrial should have been granted for a discovery violation; and (4) in the event that his conviction is affirmed, we should remand for re-sentencing for manslaughter. We find no error in any of these claims and affirm.

I.

Facts

¶ 2. On June 20, 2000, William Hester shot and killed Jimmy Dean McFall during an altercation at the trailer of Hester’s son Anthony. McFall’s wife had been living with Anthony for the ten-day period prior to the shooting. Hester and McFall lived in adjacent mobile homes in the same mobile home park. The day of the shooting, McFall went to Anthony’s trailer to speak with his wife. The elder Hester met him at the door and they argued. Hester verbally backed McFall off the porch, through the yard, and outside of the fence surrounding the property. Then Hester went to his truck to retrieve his gun which he then used to shoot McFall four times. Hester claimed that he was acting in self-defense as he believed McFall was reaching for a weapon in his pocket. Hester was convicted of murder and sentenced to life.

II.

Due Process Guarantees and the Right to a Fundamentally Fair Trial

1. Lesser-included, Offense Instruction

¶ 3. Hester’s counsel examined State witnesses and presented his own evidence to support that Hester was acting in self-defense. He argues that the State’s obtaining an instruction on the lesser-included offense of manslaughter negated his self-defense strategy. In summary, Hester allegedly was unable to present his own defense, the jury was made to believe that the State’s theory of manslaughter was his own theory, and he was denied a fundamentally fair trial as a result.

A defendant does not have the power to block lesser-included offense instructions.

We recognize in certain cases, as a matter of trial strategy, defense counsel may wish to have the case put to the jury on an all or nothing basis, the jury’s alternatives being to find the defendant guilty as charged in the indictment or acquitted. Our law, however, allows the prosecution to request and obtain lesser-included offense instructions, as it does the defense.

Harveston v. State, 493 So.2d 365, 375 (Miss.1986).

¶ 4. The principal requirement for allowing a lesser-included-offense instruction is that there be evidence to support it. Id. Evidence at this trial revealed that McFall’s wife was living next door to McFall with the younger Hester. An altercation occurred when McFall went to confront her. There was some evidence that the elder Hester believed McFall was reaching for a weapon. That might be self-defense. There was also evidence that the older Hester was worried about his son and drove to his mobile home to protect him. There was a loud though only verbal confrontation at the door of the son’s trailer between William Hester and McFall. The manslaughter instruction required that Hester have been acting without intent and in the heat of passion. This form of manslaughter has been said to require sudden terror or anger arising from sufficient provocation:

A state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Simmons v. State, 805 So.2d 452, 473 (¶ 31) (Miss.2001). Despite language such as in Simmons, it has also been held that words alone do not suffice to require a heat-of-passion instruction. Gates v. State, 484 So.2d 1002, 1005 (Miss.1986).

¶ 5. Hester relies on two cases to support his argument that the manslaughter instruction should not have been given. In one, a conviction was reversed because the State had obtained a self-defense instruction that the accused did not want, as his defense was accident. Taylor v. State, 597 So.2d 192, 195 (Miss.1992). “The [self-defense] instruction, considered by itself, deflects the jury’s attention from accident as the defense. [Jurors] cannot read the instruction without forming the opinion that the principal defense to be considered is self-defense.” Id. at 194. The court held that after reviewing all the instructions, none in isolation, the jurors might have become confused about self-defense. When “evidence is somewhat circumstantial and inconclusive, and where the [c]ourt has substantially instructed the jury that it consider a matter extraneous to the process, the risk of a misdirected verdict becomes intolerably high.” Id. at 195. That approach was followed by this Court when in a later case, the State had added language about the homicide not being in necessary self-defense to the manslaughter instructions requested by the defendant. Kelly v. State, 735 So.2d 1071, 1088 (¶ 49) (Miss.Ct.App.1999). Kelly’s defense was alibi. This Court found that the gratuitous self-defense language, which obviously required the defendant’s presence at the homicide, created too great a danger of deflecting jurors’ attention from the actual defense. Id.

¶ 6. We do not find a similar risk in the present case of the jurors becoming deflected from their proper course. A defense of accident or alibi is inconsistent with self-defense in a way that heat-of-passion is not. We acknowledge that we are comparing a complete defense (self-defense or alibi) with a lessening of culpability (heat-of-passion), but we find that the considerations are the same on whether the jurors are likely to become confused. Whether Hester was completely exonerated because of a legitimate threat to him, or whether his reaction to events was still criminal but lessened by the heat-of-passion, are not self-cancelling in the manner of the precedents.

¶ 7. We are still concerned that the evidence for heat-of-passion was not readily perceivable. Even so, the supreme court has found that the State’s receiving a manslaughter instruction cannot create reversible error when there is evidence to support and the jury convicts for murder:

Accepting that it may be difficult to squeeze the facts before us within any legally accepted definition of manslaughter, we have held in a number of cases and in a wide variety of context that, where there is in the record evidence legally sufficient to support a finding of guilty of murder, had the jury so found, the defendant will not be heard to complain that a manslaughter instruction was given. Jackson v. State, 551 So.2d 132, 146 (Miss.1989); Crawford v. State, 515 So.2d 936, 938 (Miss.1987). Today’s is such a case.

Fowler v. State, 566 So.2d 1194, 1201 (Miss.1990).

¶ 8. The manslaughter instruction is challenged on other grounds as well. Those follow.

2. Felony Charge not Heard by the Grand Jury

¶ 9. Hester argues that an instruction on the felony of manslaughter could not be given to the jury because he could be charged with a felony only by indictment. However, by statute, it is provided that an indictment for all the elements of a greater offense also indicts on lesser offenses necessarily included in the greater. Miss.Code Ann. § 99-19-5 (Rev.2000). No new indictment was necessary for manslaughter.

3. Manslaughter as a Lesser-included Offense of Murder

¶ 10. Hester argues that though normally manslaughter is a lesser offense than murder, it was not so here. Under his argument, then, charging manslaughter in this case cannot be supported by the caselaw on lesser-included offenses.

¶ 11. Hester’s point is that the practical effect of sentencing rules on the two offenses, when applied to him at age fifty-six, makes manslaughter the longer sentence. Hester could have received a twenty year sentence for manslaughter. Miss. Code Ann. § 97-3-25 (Rev.2000). Because of the operation of earned time rules, he would have become eligible for release after serving eighty-five percent of the sentence, or seventeen years. For murder, however, Hester had to receive a life sentence. Miss.Code Ann. § 97-3-21 (Rev. 2000). Someone sentenced to life imprisonment may petition for release once he is at least sixty-five years of age and has served fifteen years of the sentence. After serving fifteen years, Hester would be over age sixty-five. Thus the “life” sentence for murder could result in less time served than for manslaughter.

¶ 12. We find no need to consider today whether the occasional operation of probation, parole, and earned-time rules applicable to sentences are part of the analysis of whether a lesser-included offense instruction may be given. A lesser-included offense has these characteristics:

In order to authorize [a lesser-ineluded-offense] instruction the more serious offense must include all the elements of the lesser offense, that is, it is impossible to commit the greater offense without at the same time committing the lesser included offense.

Shannon v. State, 739 So.2d 468 (¶ 10) (Miss.Ct.App.1999), quoting Sanders v. State, 479 So.2d 1097, 1098 (Miss.1985). Under that test, manslaughter is a lesser-included offense of murder.

¶ 13. The sentencing variables are irrelevant in this case because, having been convicted of murder, Hester cannot complain about the manslaughter instruction. Fowler, 566 So.2d at 1201.

4.Violation of due process for State to present defense theory

¶ 14. In something of a summary argument, Hester argues that the handling of the manslaughter instruction violated his rights to a fundamentally fair trial. He relies on precedents that announce the general rule that a defendant is entitled to a fair and impartial trial. Adams v. State, 202 Miss. 68, 78, 30 So.2d 593, 598 (1947). The basic point argued by Hester is that the manslaughter instruction was a gambit by the State to mislead the jurors as to the self-defense evidence. We understand Hester’s argument, but do not find it supported here. We have discussed each element of the challenge to the manslaughter instruction. Though we have noted the weakness of the evidence to support it, we also do not find that the manslaughter instruction misled the jurors on self-defense. The argument would have greater impact if Hester had been convicted of manslaughter. This would not demonstrate that jurors were misled, but might have constituted an opportunity for a' compromise verdict on an offense that was not supported by the evidence.

III.

Admissibility of Threats of Violence Made by the Victim

¶ 15. Hester proffered a witness who would testify that she had once ridden in an automobile with the victim McFall and while stopped, another vehicle pulled up alongside. The occupants of that vehicle successfully irritated McFall such that after arguing with them for awhile, McFall told them that he would get his gun and shoot. He reached for the glove box as if to get a gun. The others sped away. The witness during the proffer stated that McFall did not actually have a gun and it was only a threat. The court ruled that this was inadmissible.

¶ 16. Evidence of a relevant trait of the victim’s character may be introduced to show that the victim was the first aggressor. M.R.E. 404(a)(2). The next eviden-tiary rule provides that when character of a person is relevant, “proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into specific instances of conduct.” M.R.E. 405(a). Thus under that rule, the witness could not describe the incident but could only say whether McFall had a reputation for violence or whether it was her opinion that he was violent. There is one more exception, however. When the character of a person “is an essential element of a charge, claim, or defense,” specific instances of conduct are admissible. M.R.E. 405(b). Under that section, it has been held that specific incidents demonstrating a victim’s propensity for violence are admissible when there is a claim of self-defense. Newsom v. State, 629 So.2d 611, 614 (Miss.1993).

¶ 17. The trait does not become relevant until some evidence of an overt act by the victim against the defendant is introduced. Womack v. State, 774 So.2d 476 (¶ 26) (Miss.Ct.App.2000). Once proving the act, the defendant may then offer proof of the victim’s character. Green v. State, 614 So.2d 926, 934 (Miss.1992). Hester argues that evidence of an overt act is in the record. McFall came to Anthony Hester’s trailer. The defendant William Hester testified that he thought that the bulge in McFall’s pocket was a small handgun that he knew McFall had gotten from a pawn shop earlier that day. He also thought that during the argument, McFall was reaching for the supposed gun. We find that the judge must have accepted that McFall had committed an overt act, since he ruled that character evidence in proper form would be admissible. After the argument on the State’s objection to the proffered evidence, the judge said that evidence of the victim’s prior acts of violence were admissible. “I think that pulling a gun is a specific instance of conduct that should be admissible,” but just bluffing about taking a gun from the glove compartment would not be. The judge stated, “So if you want to use character evidence ... specific instances of prior conduct to the victim, you may do so.”

¶ 18. Based on this distinction — proof of actual violent acts is admissible, idle threats of it are not — the judge excluded the evidence. What that vignette showed was that McFall was willing to try to frighten those in an adjacent automobile who likely were unarmed. A character for acting tough does not assist the jury on whether McFall was violent in fact. Hester had gotten a gun after backing McFall away from the mobile home. Hester then was holding that gun openly in his hand. Whether the victim was willing to act violently when there was no perceptible danger is not probative that he was a violent man likely to start a confrontation when the stakes were much higher.

¶ 19. The evidence was properly rejected.

IV.

Motion for Mistrial for State’s Attempt to Introduce Undiscovered Evidence

¶20. The State questioned Hester on cross-examination about whether he had ever boasted to a neighbor, such as whether he had said, “By God, if you do not leave us alone I’m going to do thus and such.” Several efforts at getting an admission were made, and then the State asked specifically about whether he had such a conversation with a neighbor named Bonnie Bradley. Hester kept denying, and finally the line of questioning was halted. Out of the presence of the jury, the State indicated that Bradley had been interviewed by their investigator. She told the investigator that prior to the shooting Hester had said “ain’t nobody going to bother her,” referring to McFall’s wife who was now living with Hester’s son. The prosecution withdrew its attempt to have the statement admitted into evidence. Hester argues that a mistrial should have been declared.

¶ 21. Hester argues that this was a discovery violation. The trial judge agreed and followed the procedures for addressing one party’s effort to use evidence that it had failed to disclose to the other after proper discovery request. URCCC 9.04 I. The defense was offered an opportunity to interview the witness who had talked to the investigator, but she was not at the courthouse. Rather than take a lengthy recess, the State said that it would stop further inquiry and not use the evidence. What that offer did is move the proceeding directly into the part of the rule that states the “court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence.” URCCC 9.04 I. 3. The judge then admonished jurors to disregard the questioning that they had been hearing just before the break. The court reporter noted that “jurors nod in the affirmative” that they all agreed to disregard the questions.

¶ 22. A trial judge is granted wide discretion in the granting of a mistrial. The presumption is that jurors follow the instructions given by the court to dissipate any prejudice. Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988). We find no reason to apply a different rule here.

V.

Re-sentencing Under the Manslaughter Statute

¶ 23. Hester requests in the alternative that we conclude that as a matter of law this evidence would only support a conviction for manslaughter. We have detailed the evidence and find that a conviction for murder was consistent with the proof. We affirm.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.


author: MYERS, J.,

text:
    Benny Ray BLANSETT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01479-COA.
    Court of Appeals of Mississippi.
    Nov. 5, 2002.

      Benny Ray Blansett, (Pro Se), Attorney for Appellant.
    Office of the Attorney General, by Deirdre McCrory, Attorney for Appellee.
    Before THOMAS, P.J., IRVING and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. Benny Ray Blansett pled guilty to aggravated assault of a law enforcement officer in 1980. In 2001, he filed a petition for post-conviction relief, which the Circuit Court of Marion County summarily dismissed as barred by the applicable statute of limitations. We affirm.

STATEMENT OF THE FACTS

¶ 2. On May 30, 1980, Benny Ray Blan-sett, Jerry Wayne Mulford, and Timothy Mathews pled guilty to aggravated assault on a law enforcement officer, in violation of section § 97 — 3—7(2)(b) of the Mississippi Code of 1972. The Circuit Court of Marion County sentenced Blansett to fifteen years in the custody of the Mississippi Department of Corrections. In 1991, while still serving the aggravated assault sentence, Blansett either escaped or attempted to escape, and was convicted of violating section 97-9-45 of the Mississippi Code.

¶ 3. In July 2001, Blansett submitted a motion for post-conviction collateral relief and/or to set aside his guilty plea before Judge Prichard of the Circuit Court of Marion County. Judge Prichard denied the motion and Blansett appeals that decision, asserting the following issues:

1. THAT THE CIRCUIT COURT VIOLATED HIS CONSTITUTIONAL RIGHTS BY FAILING TO INFORM HIM OF HIS RIGHT AGAINST SELF INCRIMINATION GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.
2. THAT HIS RIGHT TO EFFECTIVE COUNSEL, GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND BY ARTICLE 3, SECTION 26 OF THE MISSISSIPPI CONSTITUTION, WAS VIOLATED.
3. THAT THE CIRCUIT COURT VIOLATED BLANSETT’S CONSTITUTIONAL RIGHTS BY NOT INFORMING HIM OF HIS RIGHT TO CONFRONT HIS ACCUSERS.
4. THAT IT WAS ERROR FOR THE CIRCUIT COURT TO ALLOW A SINGLE COURT-APPOINTED LAWYER TO REPRESENT THREE CO-DEFENDANTS WITHOUT INFORMING THEM OF THE POTENTIAL CONFLICTS OF INTEREST.
5. THAT IT WAS ERROR FOR THE CIRCUIT COURT TO FIND BLAN-SETT’S GUILTY PLEA WAS GIVEN FREELY, VOLUNTARILY, AND INTELLIGENTLY.

LEGAL ANALYSIS

Blansett’s First, Third and Fifth Assignments of Error

¶ 4. Normally, a petition for post-conviction relief is time-barred three years after the last appeal, or three years after when the petitioner could have taken the last appeal. Miss.Code Ann. § 99-39-5(2). However, allegations of violations of fundamental rights are an exception to this procedural bar. Luckett v. State, 582 So.2d 428, 430 (Miss.1991).

¶ 5. By pleading guilty to aggravated assault of a law enforcement officer, Blansett waived three fundamental rights. “First, is the privilege against compulsory self-incrimination guaranteed by the fifth amendment and applicable to the states by the fourteenth. Second, is the right to trial by jury. Third is the right to confront one’s accusers.” Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (citations omitted); Miller v. State, 788 So.2d 70, 72 (¶ 5) (Miss.Ct.App.2000). A defendant must execute such a waiver intelligently and understandingly. Boykin, 395 U.S. at 242, 89 S.Ct. 1709. Uniform Circuit and County Court Rule 8.04.A.3 states a plea “is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.”

¶ 6. The transcript of Blansett’s plea hearing attests the lengths to which Judge Prichard went to ensure Blansett entered his plea knowingly, intelligently, and voluntarily:

Q: [By the court]: All right, now, Mr. Cooper represents you in this case; does he not?
A: [Blansett]: Yes, sir.
Q: And he has met with you and discussed this case with you and gone into the facts and circumstances with you out of which this case arose?
A: Yes, sir.
Q: Now, Benny Ray, has he also explained to you the possible sentence that this charge carries if you were found guilty or pled guilty to this charge?
A: Yes, sir.
Q: You understand you could receive up to thirty years on this charge?
A: Yes, sir.
Q: Now, Benny, since you were arrested on this charge, at any time up to and including right now, has anyone with any law enforcement agency, the District Attorney’s office, the County Attorney’s office, or anybody else mistreated you, abused you, coerced you or intimidated you in any manner?
A: No, sir.
Q: Has anybody threatened you or made any promises to you?
A: No, sir.
Q: [D]o you understand that you have every right to enter a plea of not guilty and to have your case set for trial and then for a jury to determine your guilt or innocence?
A: Yes, sir.
Q: Now, Benny, you understand that if you plead guilty that you’re no longer entitled to a trial by jury, and that I’ll have to sentence you according to your plea?
A: Yes, sir.
Q: [H]ave you understood everything up till now?
A: Yes, sir.

¶ 7. Judge Prichard went on to ask Blansett these questions a second time. By all indications, Blansett knew his rights, understood he would waive those rights by pleading guilty, and entered a plea of his own free will. There is no evidence in the record to suggest otherwise. Blansett’s “solemn declarations in open court ... carry a strong presumption of verity.” Gardner v. State, 531 So.2d 805, 810 (Miss.1988). Blansett “was advised by competent counsel, he was made aware of the nature of the charge against him, and there was nothing to indicate that he was incompetent or otherwise not in control of his mental faculties.... ” Brady v. United States, 397 U.S. 742, 756, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The Court therefore places no credence in Blansett’s argument that he was not made aware of his rights against self-incrimination and to confront his accusers or that his guilty plea was not knowing, intelligent and voluntary.

Blansett’s Second and Fourth Assignment of Error

¶ 8. Blansett claims that by having one court-appointed attorney represent him and his two co-defendants, he was denied effective assistance of counsel as required by the Sixth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution. As with his assignments of error discussed supra, this is a fundamental right, and is an exception to the time bar in Miss. Code Ann. § 99-39-5(2). Dunn v. State, 693 So.2d 1333, 1339-40 (Miss.1997) (citing Smith v. State, 434 So.2d 212, 218 (Miss.1983)).

¶ 9. “It is well-settled that ... joint representation is not per se violative of the constitutional guarantees of effective assistance of counsel; however, prejudice is presumed if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” Armstrong v. State, 573 So.2d 1329, 1333 (Miss.1990) (citing Burger v. Kemp, 483 U.S. 776, 783, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987)). The Mississippi Supreme Court adopted this standard in Stringer v. State, 485 So.2d 274 (Miss.1986). The supreme court elaborated further, stating this presumption is “insufficient to impugn a criminal conviction. To demonstrate a violation of his sixth amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.” Id. at 275.

¶ 10. Blansett fails to show that joint representation of the three co-defendants adversely affected his lawyer’s performance. He claims that the court allowed conflicting testimony, that his lawyer “did nothing” to keep Blansett from incriminating himself, and the trial court failed to advise him of the conflict. All three of these allegations fail to find any support when compared with the hearing transcript.

A.Conflicting Testimony

¶ 11. The Court fails to see any “conflicting testimony” in the transcript. All three co-defendants pled guilty. What Blansett cites as conflicting testimony is the testimony of co-defendant Mulford. Mulford says that he did not actually see Blansett “snap” a pistol at Deputy Sheriff Paul Stewart. He also says that he has no knowledge that would exculpate Blansett. Specifically, Mulford states he was “too scared” and “wasn’t looking at everything.” While Blansett correctly quotes Mulford’s testimony as saying that it was Mulford and others who jumped on the deputy, Blansett conveniently leaves out the next question and answer, “[Q:] All right, when you jumped on [the deputy], who took his pistol? [A:] Benny Ray [Blansett].” This testimony does nothing to conflict with Blansett’s admission of events leading to his conviction.

B. Self-Incrimination

¶ 12. As discussed supra, Blansett waived his constitutional privilege against self-incrimination when he pled guilty. Further, he entered this plea knowingly, intelligently, and voluntarily.

C. Duty of the Trial Court

¶ 13. Both the trial court and prosecutor have a duty to notify a defendant of potential conflicts of interest by counsel. Smith v. State, 666 So.2d 810, 813 (Miss.1995). The circuit court did explore this, asking Blansett:

Q: [H]as [your lawyer] ... done everything that you feel he should have done to properly represent you in this matter?
A: Yes, sir.
Q: Do you know of anything he’s done as your attorney that you feel that he should not have done to properly represent you in this matter?
A: No, sir.
Q: All right, so are you fully and completely satisfied with the services that he has rendered to you as your attorney?
A: Yes, sir

¶ 14. Additionally, the United States Supreme Court has held “trial courts may assume either that multiple representation entails no conflict or that the lawyer and his client knowingly accept such risk of conflict as may exist.... Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.” Cuyler v. Sullivan, 446 U.S. 335, 346, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (footnotes omitted). As such, the trial court did not violate a duty to advise Blansett of a conflict. The trial court’s inquiry shows Blansett accepted and waived any conflict present.

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

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

      . In his brief, Blansett referred to Article "3-23” of the Mississippi Constitution. The Court has corrected this perceived error with what it believes to be the section to which Blansett was referring.

      . Blansett was convicted prior to the post-conviction relief act's enactment on April 17, 1984. Therefore, he had until April 17, 1987 to file a petition for post-conviction relief. Patterson v. State, 594 So.2d 606, 607 (Miss.1992) (citing Odom v. State, 483 So.2d 343, 344 (Miss.1986)).


author: IRVING, J.,

text:
    Harvey Clifton THORNTON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01262-COA.
    Court of Appeals of Mississippi.
    Feb. 18, 2003.

      Jim Davis, Moss Point, attorney for appellant.
    Office of the Attorney General, by Scott Stuart, attorney for appellee.
    Before THOMAS, P.J., IRVING and MYERS, JJ.
   IRVING, J.,

for the court.

¶ 1. Harvey Clifton Thornton (Thornton) was convicted by a jury, sitting for the Circuit Court of Harrison County, for the manslaughter of his brother, Shelton Gerald Thornton. The trial judge sentenced him to serve a term of twenty years in the custody of the Mississippi Department of Corrections. Thornton has appealed, asserting the following issues: (1) whether the admission of the tape of Addie Thornton’s statement to law enforcement was error, and (2) whether the court erred by rereading the Sharplin instruction to the jury, highlighting the elements of the instruction, and granting the State’s additional instruction.

¶ 2. This Court finds no error in the admission into evidence of the statement given by Thornton’s mother, but even if it were, it was harmless error beyond doubt. Further, this Court finds no error in the lower court’s giving of the second instruction on voluntary intoxication or its rereading of the Sharplin instruction under the circumstances of this case. We therefore affirm the judgment of the trial court.

FACTS

¶ 3. On March 11, 2000, Thornton, along with his other siblings, Shelton and Daniel, accompanied his elderly mother, Addie Thornton, from the hospital to her home after their father had suffered a stroke. Earlier in the day, Thornton and Mrs. Thornton went to the hospital to see Thornton’s father. Thornton had been drinking rum that morning and brought rum with him in a quart jug to the hospital. That afternoon, the two left the hospital, stopped at a grocery store, and bought chicken and beer. Thornton also bought a gallon of rum and a large bottle of wine for his mother and his brothers, Shelton and Daniel.

¶ 4. After Thornton and his mother arrived back at the Thornton home, Thornton was still drinking rum. Thornton had also been taking different medications throughout the day. Thornton and Shelton had smoked marijuana. Mrs. Thornton and Daniel had some wine.

¶ 5. After cutting grass outside the Thornton home, Shelton came into the house. He sat on a couch next to Daniel who was watching television. Thornton later came inside and asked Shelton why Shelton had had sexual intercourse with Thornton’s wife. Shelton responded that he had sexual intercourse with her before, during and after she and Thornton were married. This was stated in somewhat of a laughing manner.

¶ 6. Thornton immediately proceeded to the laundry room to retrieve his gun, which was already loaded. When Thornton appeared with the gun, his mother got up and grabbed it. According to her recorded statement, she was able to wrestle it away from him on two occasions. However, Thornton got the gun a third time. His mother grabbed it again and knocked it up. Thornton snatched the gun out of her hand, told Shelton that Thornton was going to kill his a-s, and fired the fatal shot. Daniel attempted to stop Shelton’s bleeding, and Thornton called 911. The Long Beach police arrested Thornton at the scene.

¶ 7. Thornton was indicted for murder by a grand jury for his brother’s death. Following two days of trial, the jury found Thornton guilty of manslaughter, and he was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. Thornton’s post-trial motions were denied, and this appeal ensued.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. The Admission of the Addle Thornton’s Tape-recorded Statement

¶ 8. The appellate court’s standard of review of a trial court’s admission or exclusion of evidence is the abuse of discretion standard. Herring v. Poirrier, 797 So.2d 797, 804 (¶ 18) (Miss.2000). The trial judge is empowered with the discretion to consider and to decide what evidence is admissible, and unless this judicial discretion is so abused as to be prejudicial to the accused, then, the ruling of the lower court must be affirmed. Francis v. State, 791 So.2d 904, 907 (¶ 7) (Miss.Ct.App.2001) (citing Graves v. State, 492 So.2d 562, 565 (Miss.1986); Shearer v. State, 423 So.2d 824, 826 (Miss.1982)).

¶ 9. On the day that Shelton was killed, Mrs. Thornton gave a recorded statement to Lieutenant Mike Byrd of the Long Beach Police Department concerning the shooting incident. On March 21, 2000, ten days after the shooting, Mrs. Thornton gave a recorded statement to Detective Susan Taylor of the Long' Beach Police Department. Detective Taylor testified for the prosecution, while Lieutenant Byrd was called as a witness by the defense.

¶ 10. Due to Mrs. Thornton’s mental condition at the time of trial (she had been diagnosed with dementia and major depression), the trial judge ruled that she was unavailable as a witness. Consequently, the recorded statement given to Detective Taylor was admitted into evidence under the “Other Exceptions” provision of M.R.E. 804(b)(5) which reads:

A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will be best served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

¶ 11. Thornton argues that the court erred by admitting the tape of Addie Thornton’s statement. He claims the State failed to prove that the statement contained the “particularized guarantees of trustworthiness” required for out-of-court statements which fit into a “firmly-rooted hearsay exception.” He contends that because of Mrs. Thornton’s mental condition and her motive to fabricate, her statement fails the test for trustworthiness. Consequently, he explains that this failure violates his right to confront adverse witnesses. Further, Thornton claims that the admission of the tape was not harmless error because the tape refuted his defense that he had killed his brother by accident.

¶ 12. In reaching its decision to allow Mrs. Thornton’s statement into evidence, the trial court found that Mrs. Thornton was able to give an accurate statement in March of 2000. The court further found that, under Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), it was required to find in the tape a “particularized guarantee of trustworthiness.” In the trial court’s opinion, Mrs. Thornton's statement was reliable because she was “an eyewitness ... and there’s no reason to indicate or believe that she would be harboring any prejudice or any ill will against one son or the other.”

¶ 13. We agree with the trial court that there’s no reason to indicate or believe that Mrs. Thornton would harbor any prejudice or any ill will against one son or the other. Also, we reject Thornton’s argument that Mrs. Thornton had a motive to lie and that her statement was self-exculpatory.

¶ 14. Mrs. Thornton’s first recorded statement (the one given to Officer Mike Byrd) was not introduced into evidence; however, Officer Mike Byrd testified regarding it as follows:

Q: Do you recall if Addie Thornton ever told you that she put her hands on the gun?
A: At one point in time, yes, she did.
Q: In fact at one point in time did she tell you she had her hands on the gun when it was shot?
A: No, sir, she did not.
Q: When did she tell you she had her hands on the gun?
A: Through the course of the interview, I specifically asked her once we got to that point whether or not she actually had her hands on the weapon when it went off. She specifically told me on three separate occasion[s], no, that she did not.
Q: She didn’t tell you at first she did and subsequent later change on and say she didn’t?
A: No, sir. To the best of my recollection, when we specifically talked about the weapon, she said that she tried to grab it out of his hands, and that when she did, the defendant pulled the weapon away from her and then pointed the weapon at his brother. But at the specific time the weapon went off, she did not have physical contact, and I reiterated that three times separately to make sure that she was clear on that issue.
Q: In fact did she tell you, no, I’m not going to be accused of that?
A: To some extent I do remember that, yes, sir.

¶ 15. Thornton argues that Mrs. Thornton could not bear the idea or notion that she may have had a hand in causing her son’s death. Hence, he makes the subtle argument that her exclamation that “I’m not going to be accused of that” during her interview with Byrd demonstrates that her statement was both self-serving and self-exculpatory.

¶ 16. We note from Officer Byrd’s testimony that he apparently questioned Mrs. Thornton extensively about the location of her hands vis-avis the gun at the time the gun discharged. In light of his persistence in this regard, it is quite understandable that Mrs. Thornton would be emphatic with him. Further, we have listened to both the unedited and redacted versions of her first recorded statement, as well as the second statement which was given to Detective Taylor, and we are satisfied that both of her statements are consistent and do not indicate in the least any concern on her part that she may have had some complicity in Shelton’s death.

¶ 17. Even if we were to agree that it was error to admit Mrs. Thornton’s statement, we would be obliged to find such error harmless. A violation of the Confrontation Clause can be subjected to harmless error review. Rogers v. State, 796 So.2d 1022, 1028 (¶ 19) (Miss.2001) (citing Earl v. State, 672 So.2d 1240, 1243 (Miss.1996); Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). When error involves the admission or exclusion of evidence, we, sitting as an appellate court, will not reverse unless the error adversely affects a substantial right of a party. Stallworth v. State, 797 So.2d 905, 908 (¶ 8) (Miss.2001) (citing In re Estate of Mask, 703 So.2d 852, 859 (¶ 34) (Miss.1997); Terrain Enters., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995)).

¶ 18. Here, a plethora of evidence proves convincingly that Thornton’s conviction was proper. Officer Bryan Young gave an accurate depiction of the crime scene, the state of the victim, the gun and ammunition used, the presence and identification of alcohol, and his videotape of the crime scene. On two separate occasions, Officer Daisy Morales and Detective Roland Flowers each testified that Thornton, after being given his Miranda rights, admitted that he killed his brother for “f-g Thornton’s wife.” The recording of the conversation between Thornton and the 911 dispatcher also clearly implicates Thornton’s motive for killing his brother Shelton. Thornton called 911 and told the dispatcher that he had shot his brother in the chest with a gun. When the dispatcher asked him why he had shot Shelton, Thornton told the dispatcher he had shot him because Shelton had had a sexual relationship with Thornton’s wife. Additionally, Daniel gave corroborating testimony concerning (1) the conversation between Thornton and Shelton- about Shelton’s affair with Thornton’s wife, (2) Thornton’s retrieval of the murder weapon, and (3) the actual shooting of Shelton by Thornton.

¶ 19. This Court finds that the lower court’s admission of Mrs. Thornton’s statement into evidence was proper, but even if we were to hold to the contrary, the evidence, as previously recounted, would inevitably lead us to the conclusion that the error would be harmless.

2. The Sharplin Instruction

¶ 20. After five hours of deliberations, the jury had been unable to agree on a verdict. The trial judge summoned them to the courtroom and read the Sharplin instruction to them. The judge then sent the jury back for further deliberations. After three more hours of deliberations, the jury sent the judge a written note which stated, “[pjlease clarify why intoxication can’t be used as a defense, but in your given definition of manslaughter, the phrase ‘drunken stooper’ is used as a factor.”

¶21. Before deciding on a course of action, the judge entertained argument from both the prosecution and defense about whether an additional instruction should be given concerning intoxication and whether the Sharplin instruction should be reread. After the attorneys for both sides had given their views on the issue, the judge gave a supplemental intoxication instruction, reread the Sharplin instruction, and reread the instructions concerning the elements of murder and manslaughter. The judge also advised the jury to notify the court in writing whenever it was ready to retire or recess for the evening.

¶ 22. An hour and a half later, the jury returned with a unanimous verdict of guilty of manslaughter.

¶ 23. Thornton argues that the trial court erred when it reread the Sharplin instruction. According to him, “rereading the Sharplin instruction had a coercive effect on the jury which is prohibited by Isom v. State, 481 So.2d 820 (Miss.1985).”

¶24. In Sharplin v. State, 330 So.2d 591, 596 (Miss.1976), the Mississippi Supreme Court authorized the giving of the following instruction when the trial judge is confronted with the possibility of a hung jury:

I know it is possible for honest men and women to have honest different opinions about the facts of a case, but, if it is possible to reconcile your differences of opinion and decide this case, then you should do so.
Accordingly, I remind you that the court originally instructed you that the verdict of the jury must represent the considered judgment of each juror. It is your duty as jurors to consult with one another and to deliberate in view of reaching agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous, but do not surrender your honest convictions as to the effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Please continue your deliberations.

¶ 25. If a trial judge feels that there is a possibility that a jury might reach a verdict, he may return the jury for further deliberations by simply stating to the jury to please continue its deliberations or he may give the Sharplin instruction. Hardiman v. State, 776 So.2d 723, 729 (¶ 24) (Miss.Ct.App.2000) (citing Brantley v. State, 610 So.2d 1139, 1142 (Miss.1992)).

¶ 26. In Hardiman, the defendant was charged with vehicular homicide and aggravated driving while under the influence of alcohol. Hardiman, 776 So.2d at 724 (¶ 1). At the close of all the evidence, the jury deliberated approximately four and a half hours before indicating they were deadlocked and could not reach a verdict. The trial judge thereafter gave the Sharp-lin instruction, and the jury resumed its jury deliberations. Id. at 726 (¶¶ 12 & 14). After deliberating approximately two hours and forty-five minutes longer, the jury sent to the court a note which read, “[c]an we have-we have a question of can we have a hang [sic] jury?” Id. at 726 (¶ 14). The trial judge instructed the jury to reread the Sharplin instruction. Two hours later, approximately eight hours after it began its deliberations, the jury returned with separate verdicts of guilty of manslaughter and guilty of aggravated driving under the influence. A poll of the jury reflected the verdicts returned were unanimous. Id. at 727 (¶ 15).

¶ 27. We find the facts of the case-at-bar to be very similar to Hardiman. Like Hardiman, the jury deliberated approximately the same length of time, the court gave the Sharplin instruction twice, the jury never requested to retire or recess for the evening, and the jury returned with a unanimous verdict of guilty.

¶ 28. While Thornton relies on Isom for his contention that the rereading of the Sharplin instruction is prohibited, he fails to recognize this Court’s distinction between the facts of Isom and Hardiman. In Hardiman, this Court explained:

The distinction between the case at bar and Isom is clear. The trial of this case lasted three days, twice the length of the trial in Isom, and the jury deliberated for approximately eight hours, about the same length of time as in Isom. None of the jurors expressed a desire to recess deliberations at any time before reaching a verdict. Consequently, under the facts and circumstances of the case at bar, we find that the trial judge acted well within his judicial discretion in allowing the jury to continue to deliberate.

Hardiman, 776 So.2d at 729 (¶ 27).

¶ 29. Consequently, based on Hardi-man, this Court finds that under the circumstances of this case there was no error by the trial court in rereading the Sharp-lin instruction.

S. The Additional Intoxication Instruction and the Elements Instruction

¶ 30. Thornton also argues that the trial court erred when it gave an additional instruction on voluntary intoxication as a defense and reread the murder and manslaughter instructions. He argues that the court had already instructed the jury on intoxication and that it was error to re-instruct the jury on that matter. He further argues that rereading the murder and manslaughter instructions, which contained the elements of the charge, resulted in an impermissible highlighting of the elements.

¶ 31. Rule 3.10 of the Uniform Circuit and County Court Rules states:

If the jury, after they retire for deliberations, desires to be informed of any point of law, the court shall instruct the jury to reduce its question to writing and the court in its discretion, after affording the parties an opportunity to state their objections or assent, may grant additional written instructions in response to the jury’s request.
If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give an appropriate instruction.

¶ 32. Based upon the plain language of Rule 3.10, there is no doubt that a trial court has the authority to give supplemental instructions to a jury. The question then remains whether the instructions given by the trial court in this case were proper. That is the matter we next consider.

¶ 33. The original instruction on intoxication, which the trial court gave, reads:

The Court instructs the jury that voluntary intoxication is not a defense to a criminal act and therefore, if you believe from the evidence in this case beyond a reasonable doubt that the defendant was intoxicated at the time of the crime, and that this intoxication was voluntary on his part and if you further find beyond a reasonable doubt that the defendant committed the acts charged herein, then you are hereby instructed that intoxication is no defense to said acts.

The additional or supplemental instruction on intoxication given by the trial court was taken from Bailey v. State, 760 So.2d 781, 783 (¶ 6) (Miss.2000) and reads as follows:

The Court instructs the jury that if a defendant when sober is capable of distinguishing between right and wrong, and the defendant voluntarily deprived himself of the ability to distinguish between right and wrong by reason of becoming intoxicated and commits an offense while in that condition, he is criminally responsible for such acts.

¶ 34. As we have already observed, the trial judge reread the Sharplin instruction, which we have already discussed, gave the additional or supplemental instruction on intoxication, and reread the murder and manslaughter instructions. However, the trial judge, before sending the jury back for further deliberations, also cautioned the jury as follows:

Also, ladies and gentlemen, you are further reminded to read and take all of these instructions as a whole. Although the court has reread two instructions and is giving a new instruction, you are not to single out any one instruction over the others, and they are to be considered as a whole.

¶ 35. In regard to the appropriate standard of review for supplemental jury instructions, the Mississippi Supreme Court has stated: “Our inquiry, is not whether the circuit judge ruled contrary to what one of us might have ruled, not whether he was ‘right’ or ‘wrong’ in our view, but whether he abused his discretion. And, unless the trial court based its decision on an erroneous view of the law, we are not authorized to reverse for an abuse of discretion unless we find it was ‘arbitrary and clearly erroneous.’” Mickell v. State, 735 So.2d 1031, 1033 (¶ 7) (Miss.1999); Westbrook v. State, 658 So.2d 847, 851 (Miss.1995), quoting Hooten v. State, 492 So.2d 948, 950 (Miss.1986).

¶ 36. In Sanders v. State, 586 So.2d 792, 796 (Miss.1991), our supreme court stated: “As a general proposition, the trial judge should not give undue prominence to particular portions of the evidence in the instructions.” Miss.Code Ann. § 99-17-35 (Rev.2000); Mickell, 735 So.2d at 1033 (¶ 9) (citing Ragan v. State, 318 So.2d 879, 882 (Miss.1975)). “This prophylactic rule has the salutary purpose of protecting the jury from their natural inclination to put great weight in the judge’s statements. To that end, this Court has held that instructions which emphasize any particular part of the testimony in such a manner as to amount to a comment on the weight of that evidence are improper.” Mickell, 735 So.2d at 1033 (¶ 9) (citing Duckworth v. State, 477 So.2d 935, 938 (Miss.1985)).

¶ 37. We do not find that the trial judge abused his discretion by giving the additional instruction on intoxication. It is obvious that the initial jury instruction did not make it clear to the jury as to the relevance of voluntary intoxication on the charges being considered. Here, it was appropriate for the judge to give the additional instruction on voluntary intoxication to guide the jury in making an informed and careful decision on Thornton’s guilt. Also, we see no harm emanating from the trial judge’s rereading the murder and manslaughter instructions in conjunction with the additional instruction on intoxication. It is a recognized presumption that the jury follows the instructions of the trial court. McCollum v. State, 785 So.2d 279, 283-84 (¶ 14) (Miss.2001) (citing Johnson v. State, 475 So.2d 1136, 1142 (Miss.1985)). We see no reason to conclude that the jury did otherwise in this case.

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

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

      . The woman whom Shelton referred to was married to Thornton during the 1970s. The alleged affair had occurred during the same decade. She and Thornton divorced shortly thereafter.

      . As will be discussed later in this opinion, the Mississippi Supreme Court, in Sharplin v. State, 330 So.2d 591, 596 (Miss.1976), approved an instruction which has come to be known, as the Sharplin instruction. This instruction is set forth in full elsewhere in this opinion.


author: LEE, J.,

text:
    Danny LAIRD and Lynda Laird, Appellants v. ERA BAYSHORE REALTY, Patsy Dubuisson, Ed Rideout and Pest Control Specialty, Inc., Appellees.
    No. 2001-CA-01981-COA.
    Court of Appeals of Mississippi.
    March 25, 2003.

      William W. Dreher, Jr., Gulfport, for appellant.
    Wilham E. Whitfield, Gulfport, Patrick R. Buchanan, Biloxi, W. Edward Hatten, Gulfport, Samuel Trent Favre, for appel-lee.
    BEFORE LEE, P.J., MYERS AND GRIFFIS, JJ.
   LEE, J.,

FOR THE COURT.

PROCEDURAL HISTORY

¶ 1. On October 30, 1998, Danny and Lynda Laird filed a complaint in the Circuit Court of Hancock County against Ronnie and Joyce Ladnier, which was amended on July 28, 2000, to include additional defendants Patsy Dubuisson, ERA Bayshore Realty, Sidney Manix, Paul N. Seckso and Associates, Ed Rideout, and Pest Control Specialists, Inc. The Laird’s complaint, arising from the purchase of a home, alleged statutory non-disclosure, breach of contract, fraud, fraudulent concealment, misrepresentation, and intentional infliction of emotional distress. On March 1, 2001, Dubuisson and ERA Realty filed a motion for summary judgment. On April 6, 2001, Rideout and Pest Control filed a motion for summary judgment. The circuit court granted Dubuisson and ERA’s motion on June 29, 2001, Pest Control’s on July 20, 2001, and Rideout’s on October 18, 2001. The Laird’s filed a motion to reconsider the granting of summary judgment on October 29, 2001, which was denied on November 28, 2001. The Lairds then appealed to this Court, asserting the following issues: (1) the trial court abused its discretion in granting summary judgment for Dubuisson, ERA Realty, Rideout, and Pest Control; and (2) the trial court abused its discretion in entering a final judgment pursuant to M.R.C.P. 54(b). Finding no merit to either issue, we affirm.

FACTS

¶ 2. In May 1998, the Lairds executed an offer to purchase agreement to buy a house from Ronnie and Joyce Ladnier for $55,000. The house was listed with ERA Bayshore Realty and its agent, Patsy Du-buisson. After a counteroffer from the Ladniers for $65,000, the Lairds’ agent, Sidney Manix, prepared an addendum to the offer to purchase agreement. This addendum stated that their counteroffer to purchase the property for $60,000 was “contingent on property being sold in ‘AS IS’ condition.” The addendum also stated that “the floor in dining room has a definite sag and ceiling is split indicating some foundational complications. A/C in wall at right rear of house is mal-functioning (heating improperly). These are items to be considered in this offer.” Both Danny and Lynda Laird signed this addendum.

¶ 3. As a condition of the contract, the Ladniers were to furnish a “disclosure” form stating the condition of the property and a Mississippi Official Wood Destroying Insect Report from a licensed termite company. In his report, the site inspector, Ed Rideout, stated that he was unable to visually inspect under the raised portion of the house and that there was subterranean termite damage. At closing, the Lairds received the disclosure statement, read the termite report, and personally inspected the property before accepting the property “as is.” After moving into the house, the Lairds began having problems with the dining room floor sagging. The Lairds then had to repair some structural problems in the house.

DISCUSSION OF ISSUES

I. DID THE TRIAL COURT ABUSE ITS DISCRETION IN GRANTING SUMMARY JUDGMENT FOR DUBUIS-SON, ERA, RIDEOUT, AND PEST CONTROL?

¶ 4. With their first issue, the Lairds claim that the trial judge was manifestly wrong and applied the wrong legal standard when he granted summary judgment in favor of Dubuisson, ERA, Rideout, and Pest Control. In reviewing a grant of summary judgment, this Court employs a de novo standard. If the pleadings, depositions, answers to interrogatories and admissions, together with any affidavits, show there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law and summary judgment should be entered for the mov-ant. Boyles v. Schlumberger Tech. Corp., 832 So.2d 503(¶ 5) (Miss.2002).

¶ 5. The Lairds contend that the appel-lees have committed fraud because they intentionally tried to cover up the serious structural damage to the house in question. Furthermore, the Lairds claim they relied upon the representation of all the appellees in deciding to purchase the house. However, the record shows that the Lairds were aware of the structural damage to the house before the purchase. The disclosure statement says that the house was thirty years old, had numerous foundational repairs made by the owners and not contractors, had a history of termite damage, and had received major flood damage from Hurricane Camille. The “as is” clause, written by Sydney Manix, the Lairds’ agent, and signed by the Lairds, mentions the “definite sag” in the dining room floor. The Mississippi Official Wood Destroying Insect Report mentions previous termite damage, previous treatment of termite infestation, and an inaccessible area of the property. The Lairds also signed a “Declaration of Acceptance,” which stated that they “personally inspected the real property and improvements at the above address ...” and that “without any reservation or reluctance we accept the property as is; we consider the property to be suitable, completed, and ready for occupancy and use as home.”

¶ 6. The Lairds have failed to raise a genuine issue of material fact and, therefore, we find that the trial judge did not err in granting the motions for summary judgment.

II. DID THE TRIAL COURT ERR IN ENTERING A FINAL JUDGMENT PURSUANT TO M R.C.P. 54(b)?

¶ 7. With their other issue, the Lairds contend that the trial judged abused his discretion in granting a final judgment pursuant to M.R.C.P. 54(b). A Rule 54(b) judgment is reviewed under an abuse of discretion standard. Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897, 899 (Miss.1987). According to the comments to M.R.C.P. 54(b), the basic purpose of the rule is “to avoid the possible injustice of a delay in entering judgment on a distinctly separate claim or as to fewer than all of the parties until the final adjudication of the entire case by making an immediate appeal available.” Furthermore, the rule “gives the court discretion to enter a final judgment ... and it provides much needed certainty in determining when a final and appealable judgment has been entered.” M.R.C.P. 54(b) cmts.

¶8. The trial judge entered the judgment because there was no just reason for delay and, then properly certified the judgment. The Lairds submit that the trial judge abused his discretion; however, they offer no reason as to why this ruling was improper and warranted reversal other than a blanket statement claiming that courts disfavor this particular type of judgment. Therefore, we see no evidence of an abuse of discretion by the trial judge in entering a Rule 54(b) judgment.

¶ 9. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANTS.

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


text:
    Evelyn Ann LAZARUS, Appellant v. Thomas Sutton LAZARUS, Appellee.
    No. 2001-CA-00904-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.

      Ed Pittman, Jr., for appellant.
    David M. Ratcliff, Laurel, for appellee.
    Before THOMAS, P.J., IRVING and MYERS, JJ.
   MYERS, J.,

FOR THE COURT:

¶ 1. Evelyn Ann Lazarus (“Evelyn”) and Thomas Sutton Lazarus (“Thomas”) appeared before Judge Frank McKenzie of the Chancery Court of the Second Judicial District of Jones County, seeking an irreconcilable differences divorce. Chancellor McKenzie took the matter under advisement, and asked Evelyn and Thomas to provide more information so that the chancellor could rule on property division, alimony, child support, and custody. On December 22, 2000, the chancellor issued his order and opinion. He found that the Lazaruses should share legal and physical custody of their college-age daughter. No child support was ordered, but the chancellor ordered Thomas to pay all of the child’s college expenses as long as the child maintains a “C” average. Additionally, Thomas would be responsible for all medical and dental expenses of the child.

¶ 2. The chancery court found the Laza-ruses to have only three marital assets: their home, Thomas’s retirement account, and Evelyn’s retirement account. The chancellor awarded each spouse one-half of the other spouse’s retirement account and vested title in the home to Evelyn, who would also be responsible for the house payments. Evelyn now appeals the chancellor’s ruling. We affirm.

Issues

I. Whether the trial court used an incorrect amount for the value of Thomas’s retirement, thereby reducing Evelyn’s just share in the property division.

II. Whether the trial court incorrectly analyzed the parties’ respective estates and therefore failed to award alimony to Evelyn.

III. Whether the trial court considered incorrect facts regarding the minor child of the parties, thereby failing to properly impose child support obligations on Thomas.

Standard of Review

¶ 3. All of the issues raised by Evelyn involve the same standard of review. It must be reasonably certain to the Court that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard. Barton v. Barton, 790 So.2d 169, 175 (¶ 17) (Miss.2001) (citing Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996)); Duncan v. Duncan, 774 So.2d 418, 419 (¶ 4) (Miss.2000).

Discussion

¶ 4. We pause before discussing the merits of this case to note additional procedural history. Neither Evelyn nor her attorney received notice of the entry of the judgment. When Evelyn’s lawyer found out that a judgment had been entered in his case, he filed a motion for an out of time appeal in accordance with M.R.A.P. 4(h). The trial court denied this motion. Evelyn then appealed that judgment.

¶ 5. Thomas’s attorney filed a motion to dismiss the appeal with the Mississippi Supreme Court citing Rule 4(a) of the Mississippi Rules of Appellate Procedure. The supreme court denied Thomas’s motion, and we now reach the merits of the appeal.

I. Property Division

¶ 6. The Mississippi Supreme Court has stated eight factors a chancellor should consider when equitably dividing marital property:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). The chancellor need not consider all eight of the factors, but must consider all applicable to the property in question. Carrow v. Carrow, 741 So.2d 200, 202 (¶ 10) (Miss.1999).

¶ 7. In order for the Court to make a meaningful review of the chancellor’s decision, he must “separately consider and make findings of fact as to each of the relevant Ferguson factors as a prelude to his actual determination.” Baker v. Baker, 807 So.2d 476, 479 (¶ 12) (Miss.Ct.App.2001) (citing Heigle v. Heigle, 771 So.2d 341, 346—47 (¶¶ 16-17) (Miss.2000)). The failure to make such findings is an abuse of discretion that requires reversal and remand. Id. (citing Heigle, 771 So.2d at 348 (¶ 20)).

¶ 8. The chancellor made detailed findings using the Ferguson factors. Evelyn was awarded the marital home and a cash payment (representing her share of Thomas’s retirement account) of $29,138.30. The chancellor found that these assets, given Evelyn’s lifestyle, her employment, and level of education, should provide her with a good standard of living. Given the chancellor’s meticulous findings, we cannot hold the property division to be erroneous. The judgment regarding the property division is therefore affirmed.

II. Alimony

¶ 9. The guidelines to be used in determining if alimony is appropriate in a particular case were established in Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993). They are:

(1) The income and expenses of the parties;
(2) the health and earning capacities of the parties;
(3) the needs of each party;
(4) the obligations and assets of each party;
(5) the length of the marriage;
(6) the presence or absence of minor children in the home;
(7) the age of the parties;
(8) the standard of living of the parties, both during the marriage and at the time of the support determination;
(9) the tax consequences of the spousal support order;
(10) fault or misconduct;
(11) wasteful dissipation of assets by either party; or
(12) any other factor deemed just and equitable.

Id. at 1280. Unlike property division, an on-the-record analysis of the Armstrong factors is not necessary. Thompson v. Thompson, 816 So.2d 417, 420 (¶ 9) (Miss.Ct.App.2002).

¶ 10. The chancellor makes it clear that he has considered the Armstrong factors, and sees no need for alimony. While Evelyn’s testimony indicated she was concerned about her health, her Rule 8.05 statement indicated she had medical bills of $150 per month. She has lost no wages due to hospitalization or illness. She has medical insurance provided through her employer. Additionally, she stated she is only two credit hours away from a graduate degree. After reviewing the standard of living that Evelyn enjoyed during the marriage, the chancellor concluded that Evelyn should be able to enjoy a comparable lifestyle on her income and her share of the marital assets. Given the chancellor’s findings of fact, we affirm the judgment as it concerns alimony.

III. Child Support

¶ 11. Child support award guidelines are governed by Miss.Code Ann. § 43-19-101 (Rev.2000). For one child, there is a rebuttable presumption that fourteen percent of the supporting parent’s gross income should be awarded for support. Id. However, in cases where the adjusted gross income of the parent paying child support is over $50,000, the chancellor may make written findings that the statutory guidelines are not applicable Id. In the case before us, Thomas has an adjusted gross income that does exceed $50,000. The chancellor noted this and Thomas’s excellent record of providing for all needs of his daughter, including educational needs. As such, the chancellor ordered Thomas to continue to provide for Erin’s educational needs. The chancellor stated that he would revisit this issue if Thomas should fail to provide for Erin. Again, we cannot find that this was an abuse of the chancellor’s discretion. As such, we affirm. .

¶ 12. THE JUDGMENT OF THE CHANCERY COURT FOR THE SECOND JUDICIAL DISTRICT OF JONES COUNTY IS AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . This is supported by Evelyn's testimony to that fact.