author: BRIDGES, J.,

text:
    Alan K. WRIGHT, Appellant, v. CITY OF WATER VALLEY, Mississippi, Appellee.
    No. 2001-KM-01552-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2002.

      B. Brennan Horan, Horn Lake, attorney for appellant.
    John J. Crow, Water Valley, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   BRIDGES, J.,

for the court.

¶ 1. The Municipal Court of Water Valley convicted Alan Keith Wright on charges of driving on the wrong side of the road and driving while intoxicated. Wright appealed the charges to the Circuit Court of Yalobusha County; the circuit court remanded the charge of driving on the wrong side of the road back to municipal court due to errors in perfecting the appeal on that charge, and agreed to hear de novo the trial of the DUI charge. On the trial de novo before the bench, the court found Wright guilty of violating the implied consent law (first offense), sentenced him to attend the Mississippi Alcohol Safety Education Program, and fined him $750 and assessed court costs of $175. Wright filed a motion to correct judgment which the court denied, and Wright perfected his appeal to this court.

STATEMENT OF ISSUES

I. DOES THE EVIDENCE SUPPORT WRIGHT’S CONVICTION WHEN THE EXAMINING OFFICER DID NOT QUESTION IF WRIGHT SUFFERED FROM A PHYSICAL DISABILITY BEFORE ADMINISTERING THE FIELD SOBRIETY TEST?

II. IS WRIGHT ENTITLED TO A NEW TRIAL AS HE WAS CONVICTED OF DUI UNDER TWO SEPARATE DEFINITIONS OF THE CRIME?

III. DID THE COURT ERR IN DENYING WRIGHT’S MOTION FOR A NEW TRIAL?

FACTS

¶ 2. On the evening of November 3, 2000, Alan Wright drank two margaritas at the El Charito Mexican Restaurant in Water Valley and exited the restaurant. He began to drive away, and Sergeant Marshal Jackson and Officer John Spence of the Water Valley Police Department, who had just left the restaurant themselves, saw Wright driving on the wrong side of the road. Jackson followed Wright in his patrol car, and after observing Wright’s driving for a short while pulled Wright over at the parking lot of the Yalobusha County Jail. Spence arrived in his patrol car shortly after the stop as Wright began to exit his vehicle.

¶ 3. Jackson approached Wright’s car, and asked Wright how much he had had to drink. Wright responded he did not know. Officer Jackson asked Wright to go into the sheriffs office at the jail complex to administer the field sobriety test, as it was raining. Wright was unable to complete the field sobriety test, leading Jackson to believe that Wright was intoxicated, and Wright consented to a breathalyzer test, which was administered twenty minutes after Wright was pulled over. The results of the test demonstrated that Wright had a blood alcohol level of .284, and Wright was charged with driving under the influence.

ANALYSIS

I.DOES THE EVIDENCE SUPPORT WRIGHT’S CONVICTION WHEN THE EXAMINING OFFICER DID NOT QUESTION IF WRIGHT SUFFERED FROM A PHYSICAL DISABILITY BEFORE ADMINISTERING THE FIELD SOBRIETY TEST?

¶ 4. Jackson testified that he asked Wright if he suffered from any medical impairment that would hinder him from taking the field sobriety test and that Wright told him he did not. Wright argues that Jackson did not ask him the question. This question of witness credibility is one reserved for the finder of fact, which in this case was the court sitting without a jury. This Court will not overturn the factual findings of a court sitting without a jury unless, based on substantial evidence, the court is manifestly wrong. Tricon Metals & Servs., Inc. v. Topp, 516 So.2d 236, 238 (Miss.1987). Finding no manifest error, we affirm.

¶ 5. Wright further argues that the administering officer, Sergeant Jackson, was required by law to ask him if he suffered any physical impairment before administering the field sobriety test. Wright cites no law to support this proposition, and this Court has been unable to find any. Accordingly, we find no error.

II. IS WRIGHT ENTITLED TO A NEW TRIAL AS HE WAS CONVICTED OF DUI UNDER TWO SEPARATE DEFINITIONS OF THE CRIME?

¶ 6. Wright argues that he was improperly convicted under both the common law definition and the breathalyzer test definition of a violation of the implied consent law. In Mississippi, these definitions are merely two ways of committing the offense. Young v. City of Brookhaven, 693 So.2d 1355, 1358 (Miss.1997). The court properly explained this at the trial de novo in the Circuit Court of Yalobusha County, and further noted that Wright could only be convicted of the DUI once, regardless of the number and quanta of proof -available. We find no error.

III. DID THE COURT ERR IN DENYING WRIGHT’S MOTION FOR A NEW TRIAL?

¶ 7. Wright argues that the court erred in denying his motion for a new trial because he had ingested a breath mint within the fifteen minutes immediately pri- or to his breathalyzer test, and that because he had eaten the breath mint, the results were inaccurate. We find no record of such motion; accordingly, we find no error.

CONCLUSION

¶ 8. Wright makes three assignments of error. He argues that he was either not asked about any medical impairment that would prevent him from performing the field sobriety test; or that the administering officer was required by law to ask him if he suffered from any such impairment. The evidence offered demonstrates that Wright was indeed asked that question, and the law does not require the question to be asked.

¶ 9. Wright argues that he was improperly convicted twice of the same offense, as he was charged under both common law DUI and DUI as determined through the breathalyzer test. In Mississippi, the offense is the same, although there are several ways to commit it. Wright was only convicted on one count of driving under the influence; consequently, we find no error. Finally, Wright argues that he was improperly denied a new trial. We find no record of such a motion.

¶ 10. For the foregoing reasons, we affirm.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF YALOBUSHA COUNTY OF CONVICTION OF MISDEMEANOR DUI AND SENTENCE OF ATTENDING THE MISSISSIPPI ALCOHOL SAFETY EDUCATION PROGRAM AND FINE OF $750 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: BRANTLEY, J.,

license: Public Domain

text:
    Rickey MESHELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CP-00172-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.

      Rickey Meshell, Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, Jackson, Attorney for Ap-pellee.
    Before KING, P.J., IRVING, and BRANTLEY, JJ.
   BRANTLEY, J.,

for the Court.

¶ 1. Rickey Meshell’s petition for habeas corpus was denied by the Sunflower County Circuit Court. Aggrieved, he appeals arguing that his sentence was ambiguous and demanded release. Finding the Court lacks jurisdiction, we dismiss the appeal.

FACTS

¶ 2. Meshell was convicted of manslaughter in the Harrison County Circuit Court in 1984 and sentenced to twenty years as a habitual offender. Aggrieved by his conviction and sentence, Meshell appealed to the Mississippi Supreme Court which affirmed his conviction and sentence. Meshell v. State, 506 So.2d 989 (Miss.1987).

¶ 3. In 2000, Meshell filed his petition in circuit court claiming that his sentence was ambiguous and violated his due process rights. The Sunflower County Circuit Court denied the motion. Aggrieved, Me-shell appeals such denial.

ANALYSIS OF THE ISSUE PRESENTED

¶ 4. Although Meshell raises several issues on appeal, we find that the circuit court did not have jurisdiction to entertain his petition. See Doss v. State, 757 So.2d 1016, 1017 (¶¶ 6-8) (Miss.Ct.App.2000). Petitions for habeas corpus are treated as a motion under the Mississippi Uniform PosWConviction Collateral Relief Act. See State v. Read, 544 So.2d 810, 813 (Miss.1989). Filing for post-conviction relief in circuit court is correct “except in cases in which the prisoner’s conviction and sentence have been appealed to the supreme court. of Mississippi and there affirmed or the appeal dismissed.” Miss. Code Ann. § 99-39-7 (Rev.2000). If the case, such as the one in question, falls into the above category, the prisoner must first get permission to seek post-conviction relief from “a quorum of the justices of the supreme court.” Id.

¶ 5. Here, Meshell’s conviction and sentence were affirmed by the Mississippi Supreme Court. He then filed for post-conviction relief without first seeking permission ' from the Mississippi Supreme Court. Therefore, we dismiss this appeal for lack of jurisdiction.

¶ 6. THE APPEAL OF THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY DENYING POST CONVICTION RELIEF IS DISMISSED FOR LACK OF JURISDICTION. COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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


text:
    Christine HOGAN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-01521-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.
    K. Elizabeth Davis, Greenwood, attorney for appellant.
    Office of the Attorney General, by Scott Stuart, attorney for appellee.
    Before KING, P.J., IRVING, and BRANTLEY, JJ.
   BRANTLEY, J.,

for the court.

¶ 1. Christine Hogan was convicted for the sale and delivery of a controlled substance by a Leflore County Circuit Court. On appeal, she argues that the sentence imposed is tantamount to a life sentence and is thereby illegal. Finding no error, we affirm.

FACTS

¶ 2. On October 4, 1996, an undercover investigator with the Mississippi Bureau of Narcotics contacted Hogan about purchasing some cocaine pursuant to a previous conversation that had occurred. Hogan stated that she did not have any at that time but to come back later. When the investigator returned, Hogan sold him 0.7 grams of crack cocaine for $100.

¶ 3. Hogan was indicted by a grand jury for the sale and delivery of a controlled substance. She was tried and convicted. The court sentenced Hogan to a term of thirty years, with fifteen years suspended and to run consecutively to time being served in another cause. A motion for new trial was filed and denied. Aggrieved, Hogan appeals arguing that her combined sentence is illegal because it is tantamount to a life sentence.

ANALYSIS OF THE ISSUE PRESENTED

WHETHER THE TRIAL JUDGE ERRED IN DENYING HOGAN’S MOTION FOR A NEW TRIAL DUE TO THE SENTENCE BEING TANTAMOUNT TO A LIFE SENTENCE.

¶ 4. Hogan argues that the sentence is illegal because when the sentence in this cause is added to the sentence in the other cause, the total exceeds her life expectancy. Hogan was sentenced pursuant to Miss.Code Ann. § 41-29-139 (Rev.2001). By statute, Hogan can be sentenced for no more than thirty years upon conviction. Id. The State argues that each sentence is looked at separately and not in combination with another.

¶ 5. Under both convictions, Hogan was sentenced to thirty years to run consecutively. She argues that when the sentences are combined it equals sixty years, which exceeded her life expectancy of thirty years at the time of her sentencing. In her argument, Hogan relies on several cases where the Mississippi Supreme Court overturned sentences for armed robbery that exceeded the defendants’ life expectancy. See Kennedy v. State, 626 So.2d 103, 105 (Miss.1993); Stewart v. State, 372 So.2d 257, 259 (Miss.1979). However, this reliance is misplaced. Both Kennedy and Stewart dealt with convictions and sentences for armed robbery. Id. The provision prohibiting a sentence beyond the defendant’s life expectancy applies only to single sentences for armed robbery. Wash v. State, 807 So.2d 452, 458(¶ 20) (Miss.Ct.App.2001). There is not a similar provision for the sale of cocaine.

¶ 6. Even if there was a relevant provision which prohibited a sentence beyond a defendant’s life expectancy, that is not the case here. Hogan argues that the two sentences combined exceed her life expectancy. The Mississippi Supreme Court has held that the “total of the sentences may exceed the actuarial life expectancy of the defendant.” Id. at 457(¶ 16), citing Erwin v. State, 557 So.2d 799, 803 (Miss.1990). Therefore, this issue is without merit.

¶ 7. THE JUDGMENT OF THE LE-FLORE COUNTY CIRCUIT COURT OF CONVICTION OF SALE OF A CONTROLLED SUBSTANCE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIFTEEN YEARS SUSPENDED TO RUN CONSECUTIVELY TO THE SENTENCE IMPOSED IN CAUSE NO. 23,258 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.

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


author: IRVING, J.,

text:
    Cindy K. BROOME, Appellant, v. Paul A. BROOME, Appellee.
    No. 2001-CA-01014-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.

      Barbara Elizabeth Harvey, Gautier, attorney for appellant.
    Jack C. Pickett, Jackson, attorney for appellee.
    Before KING, P.J., IRVING, and BRANTLEY, JJ.
   IRVING, J.,

for the court.

¶ 1. Cindy Broome filed a complaint for contempt and modification against her former spouse, Paul Broome, seeking to have him held in contempt for failure to pay $1,375 in child support, $550 of which was alleged to be due for arrearage, $240 in medical expenses, and $1,196 in charges and fees which were assessed as a result of twenty-three of Paul’s child support and medical reimbursement checks being returned because of insufficient funds. Cindy also sought attorney’s fees and a modification of the provisions of the final judgment of divorce concerning Paul’s obligations for reimbursement of medical expenses.

¶ 2. Paul responded and admitted that certain sums were owed, including some payments for child support arrearage. Paul further admitted that twenty-three checks had been returned to Cindy. However, he alleged that the return of the checks was the result of Cindy’s own conduct and that Cindy had refused to cooperate in his efforts to pay for the returned checks. He also alleged that Cindy had refused to accept payment for the amounts alleged to be due and owing and that she had acted with the deliberate design to harass him, both financially and emotionally. Additionally, Paul filed a counterclaim seeking to have Cindy sanctioned pursuant to Rule 11 of the Mississippi Rules of Civil Procedure. He averred that Cindy’s conduct in holding twenty-nine checks, dating back to March 2000, and then depositing them between September 5 and 12 of 2000, was designed to harass him. He also sought to have Cindy held in contempt for violating a previous court order providing that the parties were not to harass or disrupt the peaceful enjoyment of life of one another.

¶ 3. The trial judge rendered a judgment denying Cindy’s request for relief and granting Paul’s counterclaim. Cindy has appealed and urges that the trial judge erred when he refused to hold Paul in contempt, denied her claim for insufficient funds fees, denied her request that Paul be solely responsible for the initial dental bill of $3,286 for braces for the minor child, denied her request for attorney’s fees and for statutory fees under section 11-7-12 of the Mississippi Code of 1972, as amended, held her in contempt, and sanctioned her $700.

¶ 4. We do not find any reversible error; therefore, we affirm the trial judge.

FACTS

¶ 5. Paul and Cindy Broome were married on September 15, 1984. The marriage produced one son, Shaun Anthony Broome. On November 17, 1994, the parties were granted a divorce on the grounds of irreconcilable differences by the Chancery Court of Jackson County, Mississippi. The court’s final decree did not, however, end the conflict or litigation between the parties. Since October 7, 1996, the chancery court has addressed five complaints of contempt filed by Cindy against Paul. The last complaint was filed on December 4, 2000, with the trial being conducted on February 15, 2001, and May 10, 2001.

¶ 6. Additional facts will be related during a discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

Standard of Review

¶ 7. A limited standard of review is employed by this Court in reviewing decisions of a chancellor. Stacy v. Ross, 798 So.2d 1275, 1278(¶ 13) (Miss.2001) (citing Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997)). Findings will not be disturbed on review unless the chancellor abused his discretion, was manifestly wrong, or made a finding which was clearly erroneous. Id. (citing Bank of Miss. v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992)). This Court reviews questions of law, however, under a de novo standard. Id. (citing Zeman v. Stanford, 789 So.2d 798, 802(¶ 12) (Miss.2001)).

Contempt Charges against Paul

¶ 8. This Court will not reverse a chancellor’s finding where it is supported by substantial credible evidence. Shipley v. Ferguson, 638 So.2d 1295, 1297 (Miss.1994). This standard of review holds true for contempt matters, too. “Contempt matters are committed to the substantial discretion of the trial court which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than we are.” Morreale v. Morreale, 646 So.2d 1264, 1267 (Miss.1994) (citing Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990)). A citation for contempt is proper only when the contemner has willfully and deliberately ignored the order or the court. Bredemeier v. Jackson, 689 So.2d 770, 777 (Miss.1997) (citing Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990); Cooper v. Keyes, 510 So.2d 518, 519 (Miss.1987)). Clear and convincing proof is required for a finding of contempt by the chancellor. Setser v. Piazza, 644 So.2d 1211, 1216 (Miss.1994) (citing Cumberland v. Cumberland, 564 So.2d 839, 845 (1990)).

¶ 9. Cindy argues that, on the first trial, Paul owed child support, medical expenses, and arrearage from previous judgments. She points out that Paul admitted he owed said obligations. Furthermore, Cindy proclaims that Paul’s payment of arrearage after the first day of trial is convincing proof of his contempt.

¶ 10. At least four things are exceedingly clear and undisputed from the evidence adduced at trial. First, when Cindy filed her last complaint for contempt, Paul was in arrears in both current and past due child support. Second, between September 5 and 12, 2001, Cindy presented to Paul’s bank for payment a total of twenty-nine checks which Paul had given her for current and past due child support and medical expenses. Some of these checks dated back to March 2000. Third, the bank honored six of these checks, but twenty-three of them were not paid due to insufficient funds in Paul’s account. Fourth, sometime between the first day of the trial in February and the last day of the trial in May, Paul paid all of the checks that had not been paid by the bank.

¶ 11. The reason for the delay in presenting the checks for payment is in sharp dispute. Cindy testified that she was asked by Paul to hold the checks. As might be expected, Paul denies that he asked that the checks be held, explaining that he never asked that a check be held for more than two days. Also, it is unclear whether the checks would have been paid if they had been timely presented because no evidence was presented as to the status of Paul’s account at the time each check was tendered to Cindy.

¶ 12. The trial judge determined that Paul was not in contempt because “Mrs. Broome admitted that all of the checks in question had been paid at the time of the hearing.” The trial judge also concluded that “because Mrs. Broome’s testimony was contradictory regarding whether or not she actually deposited, cashed or only had the checks in question stamped by her bank as being bad for ‘insufficient funds’, she is not entitled to any statutory fees for the checks in question.”

¶ 13. We do not agree with the trial judge that Paul should not be held in contempt simply because he had paid all of the child support arrearage at the time of the hearing. We first point out that Cindy’s testimony was that all of the arrear-age had been paid by the time of the second day of the hearing in May, not by the time of the first day of the hearing which occurred in February. Even if the arrearage had been paid by the first day of the hearing, that would still be approximately five months after Paul was aware that the checks had been dishonored. The record does not indicate how many checks, if any, were paid by Paul between September 12, 2000, and the first day of the hearing on February 15, 2001. Although we do not agree that Paul’s action in bringing his payments current by the time of the second day of the hearing should insulate him. from contempt, we nevertheless affirm the trial judge’s refusal to hold Paul in contempt. We do so because the burden was on Cindy to prove by clear and convincing evidence that Paul was in contempt for failure to pay child support as ordered. As previously mentioned, Cindy faded to present clear and convincing' evidence that when Paul tendered the checks to her, he did not have sufficient money in his account to cover them. We are mindful of Cindy’s testimony that Paul asked her to hold some of the checks. However, it would have been a simple matter to subpoena Paul’s bank records for the periods in question to ascertain whether sufficient money was available to cover the tendered checks.

Contempt Charges against Cindy

¶ 14. Cindy argues that the chancellor’s ruling was arbitrary and capricious and against the overwhelming weight of the evidence when he found that she was in willful contempt of the court’s August 25, 1995 order. According to Cindy, both she and her son, Shaun, gave clear and extensive testimony regarding the reason for holding the twenty-nine checks and that the reason was because Paul asked her to hold them, promising that he would make the checks good. Cindy contends that, notwithstanding Paul’s promise, she could never talk to him or get his attention until she presented the twenty-nine checks to his bank. She further explains that Paul’s attorney contacted her about redeeming' the twenty-three checks that were not paid by Paul’s bank due to insufficient funds and that she provided Paul’s attorney with a copy of all of the checks. Yet, she did not receive any funds for two months. According to Cindy, it was Paul’s action in this regard that forced her to file the contempt action against Paul.

¶ 15. The chancellor saw it differently. In his findings, the chancellor explained:

Even considering the fact that the 29 child support and arrearage checks Mrs. Broome cashed between September 5th and 12th all should have been good if Mr. Broome had properly balanced his checking account, it is evident that Mrs. Broome’s intent was to harass Mr. Broome and yet file another complaint against him. If not, she could have simply allowed him to pay the checks, something the evidence shows he made every effort to do. In addition to holding the checks in the first place, some as early as March of 2000, and attempting to negotiate 29 of them the week of Mr. Broome’s birthday, perhaps the most illustrative evidence of her underlying motivation was the fact that she never told her attorney that Mr. Broome had tried to pay the checks and that she had been in contact with and had received several pieces of correspondence from Mr. Broome’s attorney trying to pay them prior to instructing her attorney to file suit on the checks. Thus, to this Court, Mrs. Broome’s motivation was clear. She wanted to file yet another complaint causing Mr. Broome yet more financial problems and emotional distress.

¶ 16. The chancellor believed, and found, that Cindy’s actions were designed to harass Paul. Under our standard of review, we must give deference to the chancellor’s findings of fact. We cannot say that there was no evidence to support the chancellor’s finding or that his findings were clearly erroneous in this regard. Upon finding Cindy in willful contempt of the court’s order, the chancellor was at liberty to issue appropriate sanctions against her. Under Rule 11(b) of the Mississippi Rules of Civil Procedure, the court may award reasonable expenses and attorney’s fees against a party or his attorney, or both, whose pleading or motion (1) is frivolous or (2) is filed for the purpose of harassment or delay. In reviewing whether the imposition of sanctions is warranted under Rule 11, this Court uses an abuse of discretion standard. January v. Barnes, 621 So.2d 915, 921 (Miss.1992). We do not find an abuse of discretion by the chancellor and therefore affirm.

The Denial of Statutory Fees

¶ 17. Section 11-7-12 of the Mississippi Code of 1972 allows a payee or endorser to recover damages for any check made, drawn, issued, uttered, or delivered in violation of Section 97-19-55. See Miss. Code Ann. § 11-7-12 (1972). The amount of money recoverable is determined by the amount of the check. Id. In relevant part, section 97-19-55 states:

It shall be unlawful for any person with fraudulent intent:

(a) To make, draw, issue, utter or deliver any check, draft or order for the payment of money drawn on any bank, corporation, firm or person for the purpose of obtaining money, services or any article of value, or for the purpose of satisfying a preexisting debt or making a payment or payments on a past due account or accounts, knowing at the time of making, drawing, issuing, uttering or delivering said check, draft or order that the maker or drawer has not sufficient funds in or on deposit with such bank, corporation, firm or person for the payment of such check, draft or order in full, and all other checks, drafts or orders upon such funds then outstanding.

Miss.Code Ann. § 97-19-55 (Rev.2000).

¶ 18. Cindy argues that the chancellor committed reversible error by denying her statutory damages under section 11-7-12 for the twenty-three checks Paul had given her that were dishonored by the bank because of insufficient funds. She cites no authority in support of her position. She simply states, “the lower court exceeded its authority in denying its statutory mandate” and “misinterpreted the statute.”

¶ 19. In this case, Cindy presented no evidence that Paul issued the checks in question with fraudulent intent. Therefore, there was no justification for the chancellor to award any statutory damages under section 11-7-12 regarding the checks in question.

The Denial of the Request for Modification

¶ 20. In seeking a modification of child support obligations, the moving party must prove that a material change in circumstances has occurred since the entry of the decree, that such change was unforeseeable at the time of the decree, and that the change was not caused by willful or bad faith actions on the moving party’s part. Magee v. Magee, 755 So.2d 1057(¶ 9) (Miss.2000) (citing Varner v. Varner, 666 So.2d 493, 497 (Miss.1995)). A chancellor is afforded broad discretion in the area of modification of child support obligations, and this Court will reverse only when the chancellor was manifestly in error in a finding of fact or if there has been an abuse of discretion or when an erroneous legal standard was applied. Lahmann v. Hallmon, 722 So.2d 614(¶27) (Miss.1998) (citing McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994); Tilley v. Tilley, 610 So.2d 348, 351 (Miss.1992); Hammett v. Woods, 602 So.2d 825, 828 (Miss.1992)).

¶ 21. On September 22, 1999, the chancellor modified, at Cindy’s request, the decree of divorce between the parties to provide that Paul would be responsible for all medical expenses incurred on behalf of Shaun until such time as either party may secure health insurance coverage on the child, at which time each party would be responsible for one-half of any such expenses not covered by such insurance. Prior to this modification, Cindy had insurance on the minor child through her employment, and Paul was responsible for paying all bills not covered by that insurance. Cindy lost her job and her insurance benefits.

¶ 22. Cindy sought a modification of the medical expense provision of the court’s September 22, 1999 judgment to make Paul responsible for all of the child’s medical expenses not covered by insurance. According to Cindy, the material and substantial change in circumstances warranting the modification was “that the Defendant [Paul] obtained insurance on said minor on January 5, 2001, unbeknownst to the Plaintiff.”

¶ 23. Paul obtained insurance on Shaun through his present wife’s employer. Coverage under the policy became effective on January 5, 2001. Paul provided Cindy with notice of that insurance by correspondence from his attorney, dated February 16, 2001. Paul’s insurance coverage did not cover orthodontic treatment.

¶ 24. On December 20, 2000, Cindy took Shaun to an orthodontist for an initial exam and paid for the exam. On February 23, 2001, Shaun received treatment for the first time, and Cindy made an initial payment of $98 towards the cost of the braces. As of that date, a balance of $3,188 remained on the bill. According to Cindy, the remaining balance had to be paid in monthly installments of $98.

¶ 25. Based on these facts, Cindy claims that the chancellor erred in holding that each party should be responsible for one-half of the costs associated with Shaun’s braces. Cindy argues that since the entire cost of Shaun’s braces was incurred prior to the time she learned that Paul had obtained insurance on the child, Paul should be responsible for all the costs.

¶ 26. Cindy presented no evidence to the court showing that a material change in circumstances had occurred justifying the court’s modification of the prior judgment. The court noted that the only change in circumstances was that Paul obtained insurance on Shaun. This is hardly a change in circumstances that was not contemplated by the September 22, 1999 modification.

¶ 27. Cindy’s contention that the orthodontic bill in question was incurred prior to Paul’s obtaining insurance is unsupported by the evidence. The only orthodontic expense incurred prior to January 5, 2001, was the bill for the initial exam. According to the statement presented by Cindy, no treatment was performed until February 23, 2001. Therefore, both the effective date of the insurance for Shaun and Cindy’s notification of Shaun’s coverage preceded any costs incurred for Shaun’s dental treatment.

¶ 28. The chancellor denied the modification and determined that the parties should share equally in paying for the medical expenses associated with Shaun’s braces, as provided in the court’s September 22, 1999 judgment. The court also noted that Shaun’s expenses were medically necessary rather than cosmetic. See Smith v. Smith, 405 So.2d 896 (Miss.1981). The chancellor took note of the fact that Cindy was unemployed at the time of the hearing. Therefore, the chancellor required Paul to make the entire monthly payments on the orthodontic bill until Cindy could find employment. The chancellor also ordered Paul to reimburse Cindy for any amounts she had paid Shaun’s orthodontist prior to the date Paul provided proof of insurance coverage to Cindy. To avoid overly burdening Paul financially, the court allowed Paul to deduct Cindy’s one-half share of the orthodontic expense from Paul’s child support payments. We find no error in the chancellor’s handling of this issue.

The Denial of Attorney’s Fees

¶ 29. Cindy argues that the lower court gave no reason for denying her attorney’s fees. She cites one of our cases, Douglas v. Douglas, 766 So.2d 68 (Miss.Ct.App.2000), to support her contention that she is entitled to an award of attorney’s fees because Paul disregarded a valid court order until contempt proceedings were filed against him. According to Cindy, Douglas supports the proposition that “those who disregard a valid court order until contempt proceedings are filed against them, and just prior to trial gain exoneration by fully complying with the court order shall not insulate themselves from any findings of contempt and charge of appropriate attorneys fees.”

¶ 30. In Douglas, the plaintiff, Carol, challenged the chancellor’s failure to award her attorney’s fees for her pursuit of contempt charges against her ex-husband, John. Carol alleged that for three years John failed to pay his portion of a $1,900 orthodontic bill; however, two weeks prior to the contempt hearing, John paid his portion of this expense. John maintained that he and Carol agreed to allow Carol to claim the children as dependents for tax purposes in lieu of his paying his part of the orthodontic expenses. Carol maintained that she agreed to such an arrangement for another bill, not the orthodontic bill. The chancellor found that John’s failure to comply with the terms of the agreement was not due to a disregard of the chancellor’s previous order. He also found that since the bill was paid prior to the hearing, then the issue of contempt was not of concern to the substance of that judgment. Consequently, the chancellor denied the wife’s request for attorney’s fees.

¶ 31. In affirming the chancellor’s findings, this Court drew a distinction between one who wilfully disregards a court’s previous order and one who does not. We explained:

This ruling is limited to the facts and circumstances of this case. We should not be heard to say that a party can clearly disregard a valid court order until contempt proceedings are filed against the offending party and just prior to trial gain exoneration by full compliance and escape any finding of contempt and charge of appropriate attorney’s fees.

Douglas, 766 So.2d at 73 (¶ 15).

¶ 32. Here, the trial court did not find Paul in contempt. The chancellor found that Paul’s acts of noncompliance, like those of the husband in Douglas, were not willful and thus did not warrant a finding of contempt or an award of attorney’s fees to Cindy. Even in the absence of a finding of contempt, attorney’s fees may be awarded in the appropriate case. Mizell v. Mizell, 708 So.2d 55, 64(¶ 57) (Miss.1998). However, an award of attorney’s fees in divorce cases is left to the discretion of the trial court. Gray v. Gray, 745 So.2d 234, 239(¶ 26) (Miss.1999) citing Sarver v. Sarver, 687 So.2d 749, 755 (Miss.1997) (quoting Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994)). The chancellor determined that, notwithstanding Paul’s default in payment, Cindy should not be awarded attorney’s fees because Cindy refused to cooperate with Paul in getting the checks paid. The chancellor found that Paul made every effort to pay the checks before Cindy filed her lawsuit. On this point, the evidence is at least conflicting. Nevertheless, the chancellor is the fact-finder, and we cannot say this finding is entirely without anchor in the evidence. Accordingly, we find no abuse of discretion here.

Entitlement of Attorney’s Fees for Prosecuting Appeal

¶ 33. Cindy contends that this court should award her reasonable attorney’s fees incurred in the prosecution of this appeal. This Court may award attorney’s fees on appeal “in the amount of one-half of what was awarded in the lower court.” Grant v. Grant, 765 So.2d 1263, 1268(¶ 19) (Miss.2000). As stated above the chancellor did not award Cindy any attorney’s fees. We have found no error with the chancellor’s judgment. Accordingly, we therefore find that Cindy is not entitled to any attorney’s fees on this appeal.

¶ 34. THE JUDGMENT OF THE CHANCERY COURT OF JACKSON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: SOUTHWICK, P.J.,

text:
    Jimmy Earl ARON, Appellant, v. Sandra B. ARON, Appellee.
    No. 2001-CA-01080-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.

      T. Swayze Alford, Oxford, attorney for appellant.
    Cliff R. Easley, Bruce, attorney for ap-pellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Jimmy and Sandra Aron were granted a divorce after a brief marriage. In arriving at an equitable distribution of the parties’ property, the chancellor awarded Sandra the two parcels of real property that were agreed to be marital assets. Mr. Aron on appeal claims that the chancellor erred in classifying property acquired after the parties’ separation as marital, in awarding all stipulated marital property to his former wife, and also in failing to consider the factors that the Supreme Court has required be examined in making such a distribution. We agree that the chancellor failed to make adequate findings and reverse for that reason.

STATEMENT OF FACTS

¶ 2. Jimmy and Sandra Aron were married in late December 1997 and separated in October 1999. The final judgment granting divorce was entered in May 2001 after a trial to adjudicate the parties’ property rights. Prior to trial, an order was entered reflecting the parties’ stipulations to certain facts, as well as identifying those assets in contention. One agreement by the parties was that two parcels of real estate in Yalobusha and Grenada Counties were jointly owned and marital property.

¶ 3. The trial court found that all real estate purchased after the 1997 marriage was marital property subject to an equitable distribution. Mrs. Aron was awarded the lands in Yalobusha and Grenada counties. She was awarded all personal property in her possession, fifteen head of cattle, and a rehabilitative alimony award of $750 monthly for eighteen months. She also received approximately $750 in attorney’s fees. Mr. Aron received all other parcels of real estate purchased during the marriage as well as all personal property in his possession. This is his appeal.

DISCUSSION

¶ 4. Mr. Aron focuses on two issues: whether the chancellor erred in classifying certain., property as marital, and whether the chancellor committed reversible error in failing to make findings of fact as the Supreme Court has required in Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994).

1. Classification and distribution of marital property

¶ 5. In making an equitable distribution award following the dissolution of a marriage, a chancellor must first classify the property owned by the parties as marital or separate. Johnson v. Johnson, 823 So.2d 1156, 1160 (Miss.2002). Only assets in the marital estate are subject to equitable distribution. Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). Mr. Aron argues that any property acquired after the date of the couple’s separation — not, as the chancellor held, after the later date of trial — should have been considered separate property.

¶ 6. We are referred to two decisions of the Mississippi Supreme Court to support that property acquired after separation should not be characterized as marital. Selman v. Selman, 722 So.2d 547 (Miss.1998); Vaughn v. Vaughn, 798 So.2d 431 (Miss.2001). Property classified as marital usually will have been acquired after the date of the marriage and often but not always up until the final judgment of divorce. In Selman, the Court found that “while the marriage had not legally terminated, the relationship out of which equitable distribution arises had ended some months earlier.” Selman, 722 So.2d at 553.

¶ 7. Mississippi does not recognize the concept of legal separation, but the entry of a separate maintenance order may be a line of demarcation for classifying property as marital or separate. Godwin v. Godwin, 758 So.2d 384 (Miss.1999). This Court has recognized that the entry of a temporary support order may cause the classification of property thereafter acquired as separate property. Pittman v. Pittman, 791 So.2d 857, 864 (Miss.Ct.App.2001).

¶ 8. Here, no court order was entered that could be used as a possible end-date prior to the date of divorce. The chancellor has discretion in determining whether acquisitions made in a marriage’s dying stages qualify as marital or separate property. The chancellor found that all real property purchased from the date of marriage was bought with the couple’s commingled money, and therefore marital in character. We find no abuse of discretion.

¶ 9. Mr. Aron’s reliance on Vaughn is misplaced. We find the case useful on the issue of valuation, and that we will address below.

¶ 10. Whether Mrs. Aron should have been awarded both parcels acquired during the marriage is a separate issue than their classification. Indeed, it might be considered unusual to award all real property that is marital in nature to either spouse, as opposed to making an equitable division of it. The reason for this decision is wrapped deeply within the next issue, namely, whether Mr. Aron had intentionally failed to provide sufficient evidence to permit a more thorough valuation and division of property. We are reversing and remanding for the reasons discussed in that analysis, and thus the question of the proper distribution can be reconsidered on remand.

2. Supreme Court-required factors

¶ 11. Mr. Aron alleges that the chancellor erred when he did not discuss the factors set forth in Ferguson. Chancellors are required to consider these and enter a record of their findings of fact and conclusions of law for appellate review. Owen v. Owen, 798 So.2d 394, 399 (Miss.2001).

¶ 12. Here, the chancellor’s application of the factors consisted of the following:

I look at the case of Ferguson v. Ferguson. I’m not satisfied with valuing these assets to go about following the provisions of the Ferguson case, but that doesn’t mean I have to throw up my hands. I have to do the best that I can.

¶ 13. This conclusion raises two issues. One is whether the record is as sparse as the chancellor was recalling at the time of this statement. The other concerns the proper course if in fact a chancellor is confronted with intentional or inadvertent evidentiary failure so as to make the normal factual considerations impossible. Since we find that the record was not as lean as the chancellor concluded, we need not address the second point.

¶ 14. The usual requirement is for a chancellor to employ the Ferguson factors, which requires a determination of fair market value of the assets. Drumright v. Drumright, 812 So.2d 1021, 1025 (Miss.Ct.App.2001). The record, though not containing a thorough explanation of values, does contain evidence of value sufficient to support findings for at least seven of the eleven parcels held to compose the marital estate.

¶ 15. We therefore reverse and remand for further proceedings in which the chancellor should make findings of value of those properties comprising the marital estate, based either on the evidence currently in the record, or on such further evidence of value as the chancellor in his discretion may require the parties to submit. See Pucylowski v. Pucylowski, 741 So.2d 998, 1002 (Miss.Ct.App.1999). Then a distribution based on that information should be made.

¶ 16. We note that while the chancellor is not required to utilize all of the Ferguson factors in making a distribution award, the factors relevant to the case at hand must be addressed. Craft v. Craft, 825 So.2d 605, 614 (Miss.2002).

¶ 17. THE JUDGMENT OF THE CHANCERY COURT OF YALOBUSHA COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS ARE ASSESSED EQUALLY TO THE APPELLANT AND THE APPELLEE.

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


author: LEE, J.,

text:
    Brenda DUCKSWORTH, Appellant, v. WAL-MART STORES, INC., Appellee.
    No. 2002-CA-00013-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.

      P. Shawn Harris, attorney for appellant.
    Edley H. Jones, Ridgeland, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES, LEE and MYERS, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. This is an appeal from the Circuit Court of Scott County concerning a “slip and fall” case. Brenda Ducksworth was shopping in Wal-Mart on July 6, 1996, for a ceiling fan. While looking up towards a ceiling fan display, Ms. Ducksworth turned down an aisle and slipped on an unidentified substance, landing on her buttocks. Ms. Ducksworth filed suit against Wal-Mart Stores, Inc., on July 2, 1999. A trial began on October 4, 2001, and, after the close of Ms. Ducksworth’s case, Wal-Mart moved for a directed verdict. The court heard arguments from both sides and subsequently granted Wal-Mart’s motion. Ms. Ducksworth appeals to this Court asserting that the lower court erred in granting the directed verdict because there was sufficient evidence to establish a jury question as to the length of time the substance was on the floor. Finding there was sufficient evidence to create a question of fact for the jury, we reverse and remand.

DISCUSSION OF ISSUE

I. DID THE LOWER COURT ERR IN GRANTING WAL-MART’S MOTION FOR A DIRECTED VERDICT?

¶ 2. Ms. Ducksworth contends that sufficient evidence existed to present the facts to the jury. Specifically, Ms. Ducksworth claims that the condition of the spill indicated that the unidentified substance had been there long enough for other people to track through and to establish constructive notice of the spill to any Wal-Mart employees. We look to our standard of review concerning directed verdicts:

On appeal, we conduct a de novo standard of review of motions for directed verdict. When deciding whether the granting of a motion for directed verdict was proper by the lower court, this Court considers the evidence in the light most favorable to the non-moving party and gives that party the benefit of all favorable inferences that may be reasonably drawn from the evidence presented at trial.

Houston v. York, 755 So.2d 495 (¶ 12) (Miss.Ct.App.1999). If those facts and inferences, so viewed, can be said to create a question of fact from which reasonable minds could differ, then the matter should be submitted to the jury, and the directed verdict should'not be granted. Id.

¶ 3. It is well known that the owner or operator of a business premises owes a duty to an invitee to exercise rea- ’ sonable care in keeping the premises in- a reasonably safe condition. Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 285 (Miss.1986). ■ It is also well settled that the owner or occupant is not an insurer against all injuries. Ball v. Dominion Ins. Corp., 794 So.2d 271(¶ 13) (Miss.Ct.App.2001). However, when the dangerous condition is caused by a third party unconnected with the store’s operation, the burden is on the plaintiff to prove by a preponderance of the evidence that the danger existed long enough to impute constructive knowledge to the store. Jerry Lee’s Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988). The jury should be allowed to determine whether the store created the dangerous condition or had actual or constructive knowledge that the condition existed on the date of the incident. Anderson v. B.H. Acquisition, Inc., 771 So.2d 914(¶ 12) (Miss.2000).

¶ 4. From the record, it is clear that there are questions as to how long the spill had been on the floor. Ms. Ducksworth produced a photograph of the spill in question, which was admitted into evidence but never shown to the jury. This photograph was taken by Ms. Ducksworth’s daughter and it shows the condition of the spill directly after Ms. Ducksworth fell. The spill was dirty, with shoe prints and cart tracks in it. After Ms. Ducksworth’s casein-chief was presented, Wal-Mart rested without producing any rebuttal evidence, such as testimony by store employees who check the aisles periodically for hazards. Although a jury might have found for Wal-Mart, the question of whether Wal-Mart was negligent or had actual or constructive knowledge that the spill existed should have been presented. The photograph’s condition created a question of fact that should have been resolved by the jury. Finding that the facts and inferences created a question of fact from which reasonable minds could differ, we conclude that the lower court erred in granting a directed verdict for Wal-Mart; therefore, we reverse and remand.

¶ 5. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT IS REVERSED AND REMANDED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLEE.

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


text:
    William O. JOHNSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00019-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.

      Gus Grable Sermos, Summit, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, P.J., LEE, IRVING and BRANTLEY, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY

¶ 1. On September 25, 2001, a Lincoln County Circuit Court jury found William 0. Johnson guilty of numerous crimes, including one count of conspiracy to commit burglary of a dwelling, one count of burglary of a dwelling, and four counts of accessory after the fact of burglary of a dwelling. Johnson was sentenced to serve five years in the Mississippi Department of Corrections as to the conspiracy and accessory counts and ten years as to the one burglary count. Each sentence was to run concurrently, with the first five years served and the last five years on post-release supervision. Johnson appeals to this Court, asserting that the evidence was insufficient to support a guilty verdict on all counts. Finding no merit, we affirm.

FACTS

¶ 2. On December 14, 2000, five homes were burglarized over the course of the afternoon. After the first burglary occurred, a witness was able to give the police a description of a truck that had been parked in the driveway of the first burglarized home. Later that night, Johnson and a friend, driving the truck described above, were stopped by the police. The police searched the truck and found many items that had been stolen from various homes earlier that day. The police also discovered that Johnson had pawned a microwave stolen from one of the houses and had attempted to pawn other stolen pieces of merchandise, including a television, a video cassette recorder, and another microwave. Johnson and three others were ultimately arrested for the crimes.

DISCUSSION OF ISSUE

I. DID SUFFICIENT EVIDENCE EXIST TO SUPPORT A GUILTY VERDICT ON ALL COUNTS?

¶ 3. With his only issue, Johnson contends that the State’s evidence was insufficient to support the guilty verdict on all counts. Specifically, Johnson claims the trial court erred in denying his motion for a judgment notwithstanding the verdict as to all the counts. We look to our standard of review concerning the sufficiency of the evidence:

In deciding whether the prosecution has presented sufficient evidence to sustain the verdict, the Court should accept as true all credible evidence consistent with the defendant’s guilt and the State must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. A reviewing court should only reverse where, with respect to one or more of the elements of the offense charged, the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty.

George v. State, 812 So.2d 1103 (¶ 13) (Miss.Ct.App.2001) (citation omitted). It is within the discretion of the jury to accept or reject testimony by a witness, and the jury “may give consideration to all inferences flowing from the testimony.” Mangum v. State, 762 So.2d 337(¶ 12) (Miss.2000) (quoting Grooms v. State, 357 So.2d 292, 295 (Miss.1978)). We will now analyze each crime separately under the standard of review.

a.Conspiracy

¶ 4. Conspiracy is a combination of two or more persons who conspire to commit a crime. Miss.Code Ann. § 97-1-1 (Rev.2000). The Mississippi Supreme Court has held that the law on conspiracy is as follows:

For there to be a conspiracy, there must be a recognition on the part of the conspirators that they are entering into a common plan and knowingly intend to further its common purposes. The “conspiracy agreement need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts, and conduct of the alleged conspirators. Furthermore, the existence of a conspiracy, and a defendant’s membership in it, may be proved entirely by circumstantial evidence.”

Harris v. State, 731 So.2d 1125 (¶ 42) (Miss.1999) (quoting Franklin v. State, 676 So.2d 287, 288 (Miss.1996)). Furthermore, the offense can be complete without showing an overt act in furtherance of the conspiracy. Davis v. State, 485 So.2d 1055, 1058 (Miss.1986).

¶ 5. From the evidence, there was sufficient evidence for the jury to find Johnson guilty of conspiracy to commit burglary. On the night before the burglaries, Johnson sought advice as to whether or not he should proceed with the plan. Johnson helped another co-defendant case one of the houses and assisted in dividing the stolen property. Johnson’s presence throughout the day was noted by other witnesses, either in trying to pawn some of the stolen goods or by being in the company of the other perpetrators constantly.

b. Burglary .

¶ 6. Burglary is the breaking and entering of a dwelling house with the intent to commit some crime therein. Miss. Code. Ann. § 97-17-23 (Rev.2000). The unexplained possession of recently stolen property is a circumstance from which culpability may be inferred. Brooks v. State, 695 So.2d 593, 595 (Miss.1997). Although the testimony and evidence relating to Johnson’s burglary charge is at times contradictory, the jury has the authority to draw inferences from a witness’s testimony and to decide whether or not that particular witness is credible. There is conflicting testimony as to whether Johnson actually entered the house he is charged with burglarizing. No fingerprints or footprints of Johnson’s were found in the house. One of the perpetrators testified that Johnson decided not to enter the house. However, Johnson had planned to enter the house and commit burglary. Furthermore, Johnson was caught soon after the burglary with stolen items. The jury had sufficient evidence to determine that Johnson was guilty of burglary.

c. Accessory after the fact

¶ 7. An accessory after the fact is one who has “concealed, received, or relieved any felon, or having aided or assisted any felon, knowing that such person had committed a felony, with intent to enable such felon to escape or to avoid arrest, trial, conviction or punishment.” Miss.Code Ann. § 97-1-5 (Rev.2000). Furthermore, “assisting in converting a burglar’s loot into cash aids the felon in the sense that evidence of the crime is rendered less accessible to law enforcement authorities.” Buckley v. State, 511 So.2d 1354, 1358 (Miss.1987).

¶ 8. Looking at the available evidence and testimony, we find it was sufficient to support the guilty verdict. Johnson was caught with numerous stolen items, and two witnesses testified that Johnson tried to sell them some of the stolen merchandise. All three of Johnson’s partners in crime testified that Johnson’s main job in all of this was to receive the stolen merchandise and pawn or sell these items. Johnson succeeded in pawning a microwave, came close to pawning a television, and was caught with more stolen items, which he was intending to pawn the next day.

¶ 9. Finding that the jury had sufficient evidence to find Johnson guilty on all counts, we affirm.

¶10. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, CONSPIRACY TO COMMIT BURGLARY OF A DWELLING AND SENTENCE OF FIVE YEARS; COUNT II, BURGLARY OF A DWELLING AND SENTENCE OF TEN YEARS, COUNTS III, IV, V, AND VI, ACCESSORY AFTER THE FACT TO BURGLARY OF A DWELLING AND SENTENCE OF FIVE YEARS ON EACH COUNT, WITH EACH COUNT TO RUN CONCURRENTLY, WITH THE FIRST FIVE YEARS SERVED AND THE LAST FIVE YEARS ON POST RELEASE SUPERVISION, AND TO PAY $9278.49 IN RESTITUTION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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


text:
    Gralding Capice LEWIS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00476-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.

      David Clay Vanderburg, attorney for appellant.
    Office of the Attorney General, by W. Glenn Watts, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES, LEE and MYERS, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On December 6, 2001, Gralding Cap-ice Lewis and Linda Mangum were indicted on charges of unlawful taking of a motor vehicle, burglary of a vehicle, and petit larceny. Mangum pled guilty to the charges, but Lewis went to trial in March 2002 on the latter two charges. Lewis’s motion for directed verdict at the close of the State’s case-in-chief was denied, and a DeSoto County jury convicted him of burglary of a vehicle and petit larceny. He was subsequently sentenced to serve four years in prison for the burglary charge and six months in prison for the larceny charges, the sentences to run concurrently. Lewis was also ordered to pay a $1000 fine and court costs. He filed a motion for new trial and a motion for judgment notwithstanding the verdict, but both were denied. Lewis appeals to this Court arguing that the trial court erred in denying his requested peremptory jury instruction. We review this issue and find no merit; thus, we affirm.

FACTS

¶ 2. On or about October 5, 2001, Kay Nunnally was at a gas station in DeSoto County. When Nunnally went inside the store to pay for her gas, she looked out to see a woman reaching into her car and pulling Nunnally’s purse out of the car. The woman took the purse and got into a nearby vehicle driven by a male. Nunnally ran outside and was able to note the letters on the tag number of the Blazer-type truck in which the woman had escaped. Officer Sharon Sparks of the Sou-thaven Police Department was in the vicinity of the gas station, and when she drove by she looked up to see a woman in the parking lot chasing after a Blazer. Sparks pursued the vehicle through traffic until the vehicle eventually stopped in a restaurant parking lot. Lewis and Linda Man-gum were identified as the persons in the vehicle, and the purse was later recovered by a witness alongside of a road near the restaurant.

DISCUSSION OF THE ISSUE

I. DID THE TRIAL COURT ERR IN OVERRULING LEWIS’S MOTION FOR DIRECTED VERDICT AND IN DENYING LEWIS’S REQUEST FOR A PEREMPTORY INSTRUCTION?

¶ 3. Lewis’s sole argument on appeal concerns the trial court’s overruling of his motion for directed verdict and the denial of his request for peremptory instruction. Motions for directed verdict, request for peremptory instruction, and motion for JNOV all challenge the legal sufficiency of'the evidence, and the appellate court reviews the ruling on the last occasion the challenge was made in the trial court. McClain v. State, 625 So.2d 774, 778 (Miss.1993). In Lewis’s motion for JNOV, he argued the same as he does now on appeal that the evidence was insufficient to support the verdict.

In appeals from an overruled motion for JNOV the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with McClain’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, 625 So.2d at 778 (citations omitted).

¶ 4. Looking to Lewis’s brief, he argues that he played no part whatsoever in the robbery, and he did not know of the plans of his co-defendant, Linda Mangum, before the fact. He claims that Mangum was the sole perpetrator of the crime, and she testified to the same at his trial. We look to the record, however, and find substantial evidence existed to show that Lewis, indeed, was a co-eonspirator with Man-gum. According to our standard of review, we are to give the prosecution the benefit of all reasonable inferences that may be reasonably drawn from the evidence, .and we are to reverse only where reasonable and fair-minded jurors could find the accused not guilty. McClain, 625 So.2d at 778. As described herein, we find that reversal is not warranted here,

¶ 5. Looking to the evidence as presented by testimony, we find that Lewis was the driver of the Blazer in which Mangum was a passenger, he drove her to the station where they supposedly stopped to get gas, Mangum got out of the vehicle and went to Nunnally’s car where she reached in and took the purse, Mangum got back inside the vehicle and the two drove away, Officer Sparks was nearby and pursued the vehicle on a high speed chase, when Mangum and Lewis finally stopped in the restaurant parking lot Lewis resisted arrest, and Mangum told the police she threw the purse out the window because “we was caught.” Although Lewis claims that Mangum’s testimony should prove that he played no role in the robbery, her testimony was discredited by the State’s cross-examination which showed Mangum had been inconsistent in recalling events to the police. Specifically, Mangum had told the police initially that she was sleeping at the time the alleged purse snatching took place, but later she recanted and told the police she was the sole person who knew of the plan to steal the purse. , Lewis declined to testify, leaving only his co-defendant to make his case.

To determine the credibility of the witnesses, the jurors gauge the value of the conflicting testimony adduced during the trial.- This task of evaluating the credibility of each witness is properly left to the sole province of the jury. To accomplish this arduous task, a jury must be allowed some latitude in deriving the facts from each witness’s assertions.... Ultimately, the jury undertakes the duty of considering “testimonial defects of perception, memory and sincerity.”

Millender v. State, 734 So.2d 225 (¶ 25) (Miss.Ct.App.1999) (citations omitted). Along with reviewing the evidence, the jury had the opportunity to weigh the credibility of the witnesses. Considering this and taking the evidence in a light favorable to the verdict, we find the court did not err in-denying Lewis’s request for peremptory instruction or in denying his subsequent motion for judgment notwithstanding the verdict as the evidence was sufficient to. support the verdict.

¶ 6. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT OF CONVICTION OF COUNT II, BURGLARY OF A VEHICLE AND SENTENCE OF FOUR YEARS AND COUNT III, PETIT LARCENY AND SENTENCE OF SIX MONTHS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, SAID SENTENCES TO RUN CONCURRENTLY, AND TO PAY A $1000 FINE IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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


text:
    Carlos Dewayne JEFFERSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01868-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.
    Charles E. Miller, McComb, attorney for appellant.
    Office of the Attorney General, by John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Carlos Jefferson pled guilty to a charge of felony possession of a controlled substance. On appeal Jefferson argues that his sentence resulted from consideration of improper reasons and constitutes cruel and unusual punishment. We disagree and therefore affirm.

FACTS

¶ 2. Carlos DeWayne Jefferson was indicted on the charge of felony possession of 4.6 grams of cocaine with intent to sell or distribute. Because of a prior drug conviction, the indictment also called for an enhanced sentence on the charge. Following negotiations with the prosecution, Jefferson entered a plea of guilty to simple possession without the sentence enhancement. Upon defense motion, sentencing was deferred and the court ordered a pre-sentencing investigative report.

¶ 3. At the sentencing hearing, Jefferson testified to his reformed character. He also presented two character witnesses. There was also testimony on the following: at the time of his arrest, Jefferson .possessed substantial cash and a 90-millime-ter Glock handgun; Jefferson had three prior misdemeanor possession convictions; as of the day of sentencing, Jefferson had both misdemeanor and felony possession charges pending, against him in Louisiana and Texas.

¶ 4. Jefferson was sentenced to twelve years in custody. The initial sentencing order contained an error to the effect that Jefferson had been convicted of possession with intent to sell rather than simple possession. The defendant submitted a motion to re-sentence which included a request to correct this error. At the hearing on the motion, the trial court granted the motion to remove the reference to sales in the sentencing order but refused to reduce the twelve-year sentence.

DISCUSSION

1. Propriety of sentencing considerations

¶ 5. Jefferson argues that in sentencing, the trial court improperly considered charges pending against him in other jurisdictions that had not resulted in conviction. He asserts that this violated his constitutional right to - be, presumed innocent until proven guilty on the other charges.

¶ 6. The sentencing transcript reveals the following exchange took place:

THE COURT: Okay. Mr. Jefferson, I’m going to be honest with you. I haven’t seen anything that would impress me to give you a probationary sentence. You haven’t worked since June?
A: Ma’am?
Q: You haven’t worked since June?
A: I know. I started back helping my grandfather but he recently took sick like at the end of July.
Q: Okay.
A: I .could have obtained a job before then but I was going to court in different places and my father ■ didn’t want to speak for me until I - finished everything.
Q: You were going to court in different places each time for having what I consider large amounts of drugs?
A: Yes, ma’am. Well, the only time that it was really mine is when we were coming from Texas.
MR. MILLER: Your honor, can we have that stricken from the record because he has already pled the Fifth?
THE COURT: No, sir. I . didn’t ask him to say it. I’m not striking anything from the record. The Court is going to sentence you at this time, and the only reason I’m not going to give you the maximum sentence is because you have . pled, the Court is going to sentence you to a period of 12 years in the Mississippi Department of Corrections. This Court believes that you are a drug dealer. That will be the order of the Court. Take him into custody.

¶ 7. Jefferson was told during his plea hearing that he could receive a sentence of probation or as much as sixteen years imprisonment,- the statutory range for this crime. The sentence given was within that statutory range. Normally, a sentence consistent with the statutory parameters will not be disturbed. Corley v. State, 536 So.2d 1314, 1319 (Miss.1988).

¶ 8. Jefferson’s point is that this case is exceptional because the sentence considerations were improper, which might have increased the sentence that he was given. A pre-sentence report likely will include information about other charges against a defendant, whether they have resulted in convictions or not. A trial judge may consider all relevant factors when establishing a sentence, including a defendant’s explanation about such information. The trial judge indicated that she did not believe Jefferson’s assertions of reform in just a few short months from his admitted crime. That was within her discretion to determine.

2. Cruel and unusual punishment

¶ 9. Jefferson also argues his twelve-year sentence is disproportionately harsh for the crime he committed and therefore constitutes cruel and unusual punishment prohibited under the Eighth Amendment of the federal Constitution. Jefferson’s only argument as to why twelve years is an unjustly harsh punishment is that possession of cocaine is a victimless crime which constituted no danger to the community. He also suggests by inference that because diversionary programs, such as drug courts, are available and were apparently not considered at all by the trial court, there is almost a per se violation of the Eighth Amendment.

¶ 10. We find Jefferson’s reasons why leniency was proper to be less than persuasive. He has presented no evidence to suggest that imprisonment is outside the norm of accepted methods of punishing the offense.

¶ 11. THE DISMISSAL OF THE MOTION FOR RE-SENTENCING BY THE WILKINSON COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: CHANDLER, J.,

text:
    Robert C. ALBRIGHT, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00837-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.

      Daniel Dewayne Ware, Magee, attorney for appellant.
    Office of the Attorney General, by Charles W. Maris, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. On March 28, 2001, Robert C. Al-bright, Jr. was found guilty of murder of his mother, ‘Tina Albright, and aggravated assault of his sister, Karen Albright. He was sentenced to serve life in the custody of the Mississippi Department of Corree-tions for the murder, and ten years in the custody of the Mississippi Department of Corrections for the aggravated assault, to run consecutively with the life sentence. Albright has appealed, and raises three assignments of error. Firstly, Albright argues that the trial court erred by admitting gruesome photographs because the photographs were more prejudicial than probative and inflamed the jury. Next, he argues the trial court should have granted his motion for a new trial because the verdict was against the overwhelming weight of the evidence. Finally, he argues that the trial court should have granted his post trial motion requesting testing of Karen Albright’s clothes for traces of her mother’s blood.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Following are the facts consistent with the verdict. About 3:20 p.m. on the afternoon of April 13, 2000, Tina Albright picked up her children, Robert C. Albright, Jr. (Albright), fifteen, and Karen Albright, twelve, from school. Tina was driving her gold Ford Explorer. After running errands, they arrived home in Braxton around 4:00 p.m.

¶ 4. Inside, Tina told Albright to clean up his room and sent Karen to clean up the kitchen. When Karen finished in the kitchen, she went to the living room and started doing her homework at the coffee table. Tina was in the living room. Then Tina arose and went to a door leading into the garage, where she stood playing with the family dog.

¶ 5. At this point, Albright emerged from his room with a .22 caliber handgun in his left hand and began firing into the living room. He fired several shots in the direction of his mother. Karen looked up at Albright and he pointed the gun at her and fired once. She threw up her left hand and her class ring deflected the bullet, leaving her with a minor wound to the hand. Tina ran through the door, through the garage and into the driveway area. Karen crawled around the couch and saw Albright going through the garage door. Then, Karen ran out of the house through a back door.

¶ 6. Karen ran around the house to the front and saw Albright standing in the driveway in front of Tina. Albright was holding the handgun. Karen ran across the yard and into woods at the rear of the property. She stopped running, looked back and saw Albright in front of her mother with his arm raised. Karen turned away, and heard another shot that was louder than the others.

¶ 7. Karen ran through the woods and to a neighbor’s house. Karen told the neighbor that her brother had shot her and her mother, and the neighbor called 911. The police discovered the body of Tina Albright lying in a pool of blood near the driveway. The autopsy later revealed that she received a shot to the chest from a .22 caliber gun, and shots from a .410 gauge shotgun to the side of the left hip, and, fatally, to the hand and head.

¶ 8. Meanwhile, around 6:30 p.m., Al-bright entered Buddy’s convenience store in D’Lo and bought a drink. The store clerk noticed that he was driving a gold Explorer. Around 6:35 p.m., Wesley Red-mund noticed a gold Explorer with its flashers on parked on the north side of the Dabbs Creek bridge. Then, about 6:45 p.m., a neighbor saw Albright arrive at his house driving the gold Explorer.

¶ 9. The police found one intact and two expended shotgun shells outside the Al-bright house. On 'April 19, the police searched Dabbs Creek. They discovered a .22 caliber handgun with expended shells inside, a .410 gauge shotgun, and intact .410 gauge shotgun shells in the water under the north side of the bridge. Al-bright’s father identified the guns as those that were kept in his son’s room before the murder. Ballistics testing disclosed that the weapons and casings were those used in the shooting of Tina Albright. After three or four days of investigation, the police viewed Albright as the sole suspect. They theorized that Albright followed his mother outside, discovered that the .22 was out of bullets, got the .410 from his room, and then went back outside and killed Tina Albright.

LAW AND ANALYSIS

I. DID THE TRIAL COURT ERR BY ADMITTING PHOTOGRAPHS QF THE VICTIM THAT WERE MORE PREJUDICIAL THAN PROBATIVE AND INADMISSIBLE UNDER MISSISSIPPI RULE OF EVIDENCE 403?

¶ 10. Albright contends that the trial court improperly admitted nine Polaroid photographs of Tina Albright’s body. The photographs were taken by the pathologist, Dr. Steven Hayne, after the body had been cleaned. The photographs were close-ups of body parts that had received entry or exit wounds. At trial, Albright objected to admission of the photographs as more prejudicial than probative because they would inflame the jury. In an in camera hearing, Dr. Hayne testified that each photograph would be useful in providing a thorough explanation of the autopsy report during his testimony before the jury. Dr. Hayne testified that, while the pictures might provoke an uncomfortable reaction in a viewer, they would not be expected to provoke a severe visceral reaction. Based on this testimony, the court found that the photographs were not more prejudicial than probative and admissible under Mississippi Rule of Evidence 403.

¶ 11. This Court will reverse the trial court’s evidentiary ruling for abuse of discretion. Alexander v. State, 610 So.2d 320, 338 (Miss.1992). Regarding photographs, “the discretion of the trial judge runs -.toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Brown v. State, 682 So.2d 340, 353 (Miss.1996) (quoting Hart v. State, 637 So.2d 1329, 1335 (Miss.1994)). However, gruesome photographs with no evidentiary value that only arouse the emotions of the jury are inadmissible. Sharp v. State, 446 So.2d 1008, 1009 (Miss.1984). “[photographs have evidentiary value when they: ‘(1) aid in describing- the circumstances of the killing and the corpus delicti; (2) where they describe the location of the body and cause of death; (3) where they supplement or clarify witness testimony.’ ” McGilberry v. State, 741 So.2d 894, 906 (Miss.1999) (quoting Westbrook v. State, 658 So.2d 847, 849 (Miss.1995)).

¶ 12. Applying these standards, we find the trial court did not abuse its discretion by admitting the photographs of Tina Al-bright’s body. ■ The photographs were not particularly gruesome. The body had been cleaned and dried and there was very little blood. The photographs described the cause of death and supplemented and clarified Dr. Hayne’s testimony; therefore, they had evidentiary value. Tina Albright suffered multiple wounds, and the photographic depiction of the size, nature and location of the wounds was helpful to understanding how she was killed. The trial court properly admitted the photographs. See Holly v. State, 671 So.2d 32, 41 (Miss.1996); Hart v. State, 637 So.2d 1329, 1334-36 (Miss.1994); Turner v. State, 573 So.2d 657, 667 (Miss.1990).

II. DID THE TRIAL COURT ERR BY DENYING ALBRIGHT’S MOTION FOR A NEW TRIAL?

¶ 13. A motion for a new trial implicates the trial court’s sound discretion, and only should be granted when the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, Would constitute an unconscionable injustice. Wetz v. State, 503 So.2d 803, 812 (Miss.1987). This Court will reverse and order a new trial only upon a determination that the trial court abused its discretion, considering as true all evidence favorable to the State. McClain v. State, 625 So.2d 774, 781 (Miss.1993).

¶ 14. At trial, Albright attempted to impeach Karen Albright’s testimony with testimony from her relatives that on several prior occasions Karen had related slightly different versions of the events of the afternoon of April 13, 2000. Two relatives testified that Karen had asked them about the consequences of lying on the witness stand. In no version of the events did Karen allege that anyone other than Albright was the shooter. On appeal, Al-bright argues that the inconsistencies demand that we reverse for a new trial. Albright also addresses other alleged evi-dentiary conflicts and alleged incomplete police investigation as bases for reversal.

¶ 15. We have reviewed the evidence and find that Albright’s arguments are without merit. Considering the evidence in the light most favorable to the State, it was reasonable for the jury to find Robert Albright guilty. The evidence shows that Tina Albright received nonfatal wounds from a .22 caliber gun and other wounds, including the fatal wound, from a .410 gauge shotgun. Albright kept a .22 caliber handgun and a .410 gauge shotgun in his room. Karen saw Albright come out of his room and shoot at her and at Tina Al-bright with a .22 caliber handgun. Karen saw Albright standing in front of Tina Albright in the driveway. Albright’s arm was raised. Then, Karen heard a loud shot. Less than five minutes after Al-bright left Buddy’s store in the gold Explorer, the same gold Explorer was parked at Dabbs Creek at the spot where the weapons, a .22 caliber handgun and a .410 gauge shotgun, were discovered. Ten minutes later, Albright drove up to his house in the gold Explorer.

¶ 16. It is the unique function of the jury to weigh the evidence and to resolve any conflicts therein. McLelland v. State, 204 So.2d 158, 164 (Miss.1967). In exercising this function, the jurors may accept the testimony of some witnesses and reject the testimony of others. Id. Further, “the testimony of a single uncorroborated witness is sufficient to sustain a conviction.” Williams v. State, 512 So.2d 666, 670 (Miss.1987). In this case, the jury reasonably found that Albright was responsible for the murder of his mother and aggravated assault of his sister.

III. DID THE TRIAL COURT ERR BY DENYING ALBRIGHT’S POST-TRIAL MOTION FOR BLOOD TESTING OF KAREN AL-BRIGHT’S CLOTHES?

¶ 17. Police investigators did not submit Karen Albright’s clothes for blood testing. Other blood samples taken from the crime scene were never tested because the crime lab where the samples were sent no longer conducted that type of DNA testing. The police received notice three weeks before trial that the samples were untested. At some point before trial, defense counsel was told that the samples were untested. After trial, Albright’s family informed defense counsel that they were willing to pay for testing. On April 18, 2001, Albright filed a post-trial motion requesting permission to test blood stains on Karen Albright’s clothes and blood stains from the Albright’s driveway.

¶ 18. In his oral presentation of the motion to the trial court, defense counsel alleged that the reason he did not move for testing before trial was that he did not discover the blood samples were untested until “immediately” before trial. The trial court denied the motion as untimely, stating that it would have granted the motion had it been made before trial. On appeal, Albright argues the trial court improperly denied the motion. He admits that the motion could have been made before trial, but asserts that it was not made because defense counsel was appointed late and the Albright family did not indicate willingness to pay for testing until after trial. He argues that there is a possibility that testing would reveal evidence that would exculpate Albright by implicating Karen Al-bright.

¶ 19. The standard of review of a post-trial motion is abuse of discretion. Robinson v. State, 566 So.2d 1240, 1242 (Miss.1990). We find that the trial court did not abuse its discretion by denying Albright’s motion. The motion was untimely. Al-bright received notice the samples were untested prior to trial and should have requested testing at that time. Cf. Brewer v. State, 819 So.2d 1165, 1168 (¶ 18) (Miss.2002) (possibility of exculpatory DNA testing of evidence became apparent during trial; trial court granted defendant’s motion for testing). Additionally, Albright has made no showing, beyond mere conjecture, that testing would reveal exculpatory evidence.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF SIMPSON COUNTY OF CONVICTION OF COUNT ONE, AGGRAVATED ASSAULT, AND SENTENCE OF TEN YEARS; COUNT TWO, MURDER, AND SENTENCE OF LIFE ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SENTENCE IN COUNT ONE TO RUN CONSECUTIVELY TO SENTENCE IN COUNT TWO IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SIMPSON COUNTY.

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


author: THOMAS, J.,

text:
    Eric M. ROGERS a/k/a Marchon Rogers, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01594-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.

      Ranee N. Ulmer, Bay Springs, Attorney for Appellant.
    Office of the Attorney General by John R. Henry, Attorney for Appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. Eric Rogers was found guilty of aggravated assault and sentenced to twelve years in the Mississippi State Penitentiary. Aggrieved he asserts the following on appeal:

I. THE COURT ERRED IN FAILING TO GRANT THE MOTION FOR DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT BASED ON THE INSUFFICIENCY OF THE EVIDENCE.
II. THE COURT ERRED IN REFUSING TO GRANT A NEW TRIAL AS THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

FACTS

¶ 2. On September 30, 2000, eighteen year old Benjie Keys, the victim in this case, met Eric Rogers at the Jitney Jungle on 16th Street in Laurel, Mississippi. Keys was meeting Rogers for the purpose of acquiring a stereo from Rogers’ cousin. Keys and Rogers had come to know each other through mutual employment at Howard Industries.

¶ 3. Upon meeting at the Jitney Jungle, Keys exited his vehicle and entered Rogers’ vehicle. The two traveled to Rogers’ home leaving Keys’ vehicle parked in the Jitney Jungle parking lot. When the two arrived at Rogers’ residence there was no stereo and no seller. After a few hours of waiting Keys decided he wanted to leave. He described that he was “catching on to” Rogers. Throughout the period of waiting for the seller of the stereo to arrive, Rogers had made some comments that led Keys to believe Rogers was a homosexual and had nefarious intentions for bringing Keys to his residence. Rogers played a “gyrue” video and -Keys began to watch it while waiting for Rogers to decide to bring him back to his car. While Keys’ attention was directed at the video Rogers came from behind him and hit him over the head with a hammer. Keys, quite surprised, then picked himself off the floor and asked what happened. Rogers then punched him in the mouth. The two consecutive blows caused Keys to have a seizure. Rogers then picked Keys up and assisted him to a room where he fell asleep. Upon Keys regaining consciousness, Keys found that Rogers was watching him.

¶ 4. Rogers began to prepare a marijuana cigarette and offered some to Keys. Wflien Keys declined, Rogers insisted as he pointed a .38 caliber handgun at Keys’ forehead. After Keys obliged, Rogers handcuffed Keys’ left arm to an object in the room. Rogers then began to masturbate near Keys’ face. Keys attempted to push Rogers away. At this point Rogers prepared another marijuana cigarette.

¶ 5. At approximately 1:00 A.M. Rogers, armed with the .38 handgun, took Keys to a deer stand and told Keys to stay there. Keys objected and pleaded with Rogers to bring him home at which time Rogers decided to comply.

¶ 6. Rogers drove to the Jitney Jungle parking lot where Keys’ car was located. As they approached the parking lot, Keys became adamant about Rogers dropping him at the hospital. He explained that he was unable to drive due to poor vision. When the two arrived at the hospital Rogers began to question Keys as to whether he would tell anyone what occurred. Rogers asked Keys if they were still “cool.” As Rogers was talking to Keys, his car” was parked out of the hospital’s security camera’s line of sight. Keys then exited the vehicle and entered the hospital. His injuries included a fractured skull and two chipped teeth.

¶ 7. Rogers did not testify at trial but his videotaped statement was shown and admitted into evidence. The hammer which was used to fracture Keys’ skull was found in the trunk of Rogers’ vehicle.

I. DID THE COURT ERR IN FAILING TO GRANT THE MOTION FOR DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT BASED ON THE INSUFFICIENCY OF THE EVIDENCE?

¶ 8. Rogers contends the circuit court erred in not granting his motion for a directed verdict or in the alternative a judgment notwithstanding the verdict. Our supreme court stated the applicable standard of review in McClain v. State, 625 So.2d 774 (Miss.1993).

In appeals from an overruled motion for JNOV the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with [the accused’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 consid-efed is such that reasonable and fair-minded jurors could only find the accused not guilty.

Id. at 778 (citations omitted). “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).

¶ 9. The evidence here was more than sufficient to support the verdict. Rogers bases his lack of sufficiency argument on the fact that Keys sat down and began watching a video, and that this just did not agree with Keys’ story of being scared and unwilling to be at Rogers’ residence. Rogers argues that the two were lovers and that Keys concocted this elaborate story to hide his sexuality from his family. He argues Keys admitted to hospital employees and to the jury that he did not remember what happened. The facts were a matter for the jury to determine and they did. This issue is without merit.

II. DID THE COURT ERR IN REFUSING TO GRANT A NEW TRIAL AS THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 10. Rogers argues that the trial court erred in not granting his motion for a new trial, or in the alternative, his motion for judgment notwithstanding the verdict. Rogers contends that Keys’ testimony is not credible based on Rogers’ description of their relationship as lovers.

¶ 11. The standard of review in determining whether a jury verdict is against the overwhelming weight of the evidence is well settled. “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 failing to grant a new trial.” Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” 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.” Dudley, 719 So.2d at 182. It has been established that “the jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Meshell v. State, 506 So.2d 989, 991 (Miss.1987). See also Hilliard v. State, 749 So.2d 1015, 1017(¶ 9) (Miss.1999); Lewis v. State, 580 So.2d 1279, 1288 (Miss.1991); Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979). This Court may not make an assessment on the credibility of the trial witnesses as this task is one for the jury presiding over the matter. Kinzey v. State, 498 So.2d 814, 818 (Miss.1986). When this Court analyzes a jury’s verdict to determine whether it goes against the overwhelming weight of the evidence, we must keep in mind that the jury is the ultimate finder of fact. This Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible. The law provides:

Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or disbelieve, accept or reject the utterances of any witness. No formula dictates the manner in which jurors resolve conflicting testimony into finding of fact sufficient to support their verdict. That resolution results from the jurors hearing and observing the witnesses as they testify, augmented by the composite reasoning of twelve individuals sworn to return a true verdict. A reviewing court cannot and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict. It is enough that the conflicting evidence presented a factual dispute for jury resolution.

Langston v. State, 791 So.2d 273, 280 (¶ 14) (Miss.Ct.App.2001) (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)). We see no basis for doubting the verdict. The trial judge did not abuse his discretion when he denied the motion for a new trial or judgement notwithstanding the verdict.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF JASPER COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JASPER COUNTY.

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

      . After extensive research, the term “gyrue” seems to be associated with some type of pomographic material.