author: SOUTHWICK, P.J., LEE, J.,

text:
    In re ESTATE OF William George LAW, Deceased: Dolores Cluney a/k/a Dolores Law, Appellant, v. John David LAW, Administrator, Appellee.
    No. 2000-CA-02025-COA.
    Court of Appeals of Mississippi.
    June 11, 2002.
    Rehearing Denied Sept. 24, 2002.

      C. Michael Malski, Tupelo, attorney for appellant.
    J. Dudley Williams, Aberdeen, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS, and IRVING, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. The chancellor cancelled as fraudulent a deed to the appellant from a man who thought that she was his wife. In fact, the appellant had a hidden existing marriage. On appeal the non-wife argues that regardless of this misrepresentation, there was no proof that the fraud caused the conveyance. We agree that there was substantial evidence that the appellant had misrepresented her marital status to the deceased who thought he had married her. The deception was continued for a time even in this suit. Still, there was no evidence that the grantor deeded the property only because he thought he was married to the grantee. We therefore reverse and render.

FACTS

¶ 2. George Law was married to Geraldine Law when she died in 1989. Mr. Law then met Dolores Cluney in 1992. There was testimony from one of Law’s sons that appears to state that Cluney lived nearby in a small trailer and perhaps foraged for food from a dumpster. She would come to Law’s backdoor wanting to borrow cigarettes, sugar, or use the telephone. There was evidence introduced that she was receiving Social Security Administration disability payments, and that she was easily confused by a variety of matters, including finances. She was described as being of low intelligence, with one witness comparing her to a twelve-year-old. Cluney began to provide company for the older man, who was growing blind and had a variety of other physical problems. Law and Clu-ney lived together beginning in September 1992. On January 8,1994, they underwent a marriage ceremony. Mr. Law was about 73 years of age and Cluney was 40. This marriage was invalid because Cluney had a prior undissolved marriage.

¶ 3. There was evidence that Cluney left Law three times. The first was for about seven days and was before the wedding. She then left again sometime after the wedding. It was after her second return that Law conveyed her a survivorship interest in the house. She last left him when or perhaps just before he went into the hospital in 1999, but she returned before he died.

¶ 4. Approximately six months after the 1994 wedding, Law conveyed his residence, which included a one acre lot on which his home was located, to himself and Cluney as “joint tenants with full rights of surviv-orship and not as tenants in common.” Law died intestate in 1999. At that time, he also owned about 190 acres of farmland that was inherited by his children. His son, John Law, was appointed the administrator for his estate. Shortly thereafter, John Law petitioned the court to have the deed set aside and the purported marriage declared void.

¶ 5. Cluney made several misrepresentations to the court during the initial stages of these proceedings, when the administrator was unaware of her former marriage. It was established that Cluney made false statements about her marital status, her level of education, and about the use of the name, Dolores Cluney. The former marriage was to a Raymond Cluney, which occurred in 1972 when the bride would have been about nineteen years old. Dolores Cluney in these proceedings testified that the couple lived together only for a month. There is mention in the administrator’s brief that a secretary for the estate attorney first made the connection between Dolores Spadoni Law, as she was known to Mr. Law, and a Dolores Cluney who had sought to have her “common law husband” Timothy Johnson committed to the state mental hospital in 1992. Regardless of the source of the information, once the administrator became aware of these questions, an investigation into Cluney’s background was undertaken. When these issues first came to the fore, the appellant denied that she was the Dolores Cluney who had signed the commitment papers on Johnson. Later she admitted her role in the Johnson commitment.

¶ 6. The chancellor granted partial summary judgment by setting aside all of Clu-ney’s inheritance rights. No error is alleged in that decision. A trial was later held that led to the chancellor’s setting aside the deed and establishing a constructive trust for the benefit of the heirs. Cluney appeals.

DISCUSSION

¶ 7. Cluney’s sole assertion of error is that the administrator failed to prove that fraud underlay the conveyance. She argues that there was no proof that Law’s belief that the two were married was the reason for the conveyance of the house and land.

¶ 8. These are the requirements for setting aside a conveyance based on fraud:

The elements of fraud, which must be proven by clear and convincing evidence, include: 1) a representation; 2) its falsity; 3) its materiality; 4) the speaker’s knowledge of its falsity or ignorance of its truth; 5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; 6) the hearer’s ignorance of its falsity; 7) his rebanee on its truth; 8) his right to rely thereon; and 9) his consequent and proximate injury.

Levens v. Campbell, 733 So.2d 753, 761-62 (Miss.1999). It is obvious that the misrepresentation alone, even of a matter as significant as this, is not enough to invalidate the deed.

¶ 9. The chancellor quoted these factors in her opinion, but then did not make findings on all of them. The chancellor’s opinion primarily relied on the fact that a fraudulent marriage occurred. There at least was a finding that the misrepresentation was material to the conveyance:

Based on the totality of the situation and the credible proof, Dolores made a false representation as to her marital status and this representation was material to [Law] deeding an interest in his real property to her. It was only after six months of a purported marriage that a deed was executed and the deed itself refers to Dolores as [Law’s] wife in two locations in the document. Where one party (in this case, Dolores) knows of an impediment to marriage and practices fraud on the other, ... there is no reason why this fraud should not vitiate the gift. Accordingly, this Court grants the relief requested and does hereby set aside the transfer based on fraud from [Law] and Dolores....

¶ 10. Proof of the elements of fraud must be by clear and convincing evidence. Id. at 761. We look to the record to determine what evidence existed on these factors. Though there are not findings on each factor, we can in a non-domestic relations case imply the findings on contested evidence necessary to uphold the decision unless there are indications that the chancellor was not applying the correct legal principles. Watson v. Lillard, 493 So.2d 1277, 1279 (Miss.1986)(“where the trial judge did not make specific findings of fact with regard to controverted issues, this Court will assume that the trial judge made all findings of fact that were necessary to support his verdict”). The chancellor set out these same factors as being necessary for proof of fraud, then found that fraud was proven. Therefore, we will imply the necessary findings if there is evidence to support them.

A. Representation.

¶ 11. Proof that Cluney knowingly misrepresented the fact that she was not married was shown. For a time Cluney argued that she forgot about the former marriage, but no serious dispute exists on appeal that a knowing misrepresentation was made. Not only did Cluney not disclose her marital status to Law, she committed perjury during her depositions and court room testimony. These proceedings began with the administrator, the son of the deceased, believing that Cluney was the widow of his father. Cluney allowed that misunderstanding to continue until its falsity was independently discovered.

B. Falsity.

¶ 12. During depositions, Cluney was confronted with a marriage license that established that she had indeed been a party to a previous marriage. Cluney also admitted that her marriage to Raymond Cluney had not been dissolved.

C. Materiality.

¶ 13. The factors of materiality and reliance appear closely related. One interpretation of the factors could be that any misrepresentation relied upon by the person defrauded must for that reason have been material. However, that would make materiality and reliance but one factor. We find instead that “materiality” is an objective matter, unrelated to what the person deceived actually thought. It asks whether the misrepresented fact is a significant one. If Cluney had told Law that she was born in 1955 or in 1951, when in fact she was born in 1953, such an intentional misstatement would not likely be material to the conveyance of property. A grantor might still claim that he relied upon the incorrect age. The two factors will usually be joined, in that a person defrauded would not often rely on an immaterial untruth. Yet, if such reliance occurs such as on a minor misstatement of age, the question of materiality becomes independently important.

¶ 14. We have no doubt that a false statement about Cluney’s marital status was material to Law’s interest in marrying her. We also find whether Law was actually married to Cluney is objectively material to whether he would want to leave his house to her at his death.

D.Knowledge, Intent & Ignorance of Falsehood.

¶ 15. It is an almost unavoidable inference that Cluney knowingly misrepresented herself to be a single woman, and that Law was ignorant of the falsehood. What is less an inevitable inference is that Cluney misrepresented her marital status with the intent to induce Law to convey property to her. Still, that too might be inferred from circumstantial evidence.

¶ 16. The chancellor made no finding that she interpreted this evidence to mean that the intent behind Cluney’s misrepresenting her marital status was to acquire part of Law’s property. There is no requirement that the intent for all the ultimate consequences exist from the first misrepresentation. A deed to property may not initially have been contemplated by the deceiver. It would be enough that by the time a deed of property began to be discussed by the parties, that the misrepresentation was continued with the intent of inducing the conveyance. In addition, the initial intent may be general, to acquire such benefits as become available as a result of the falsehood.

¶ 17. We find that Cluney’s intent to acquire what benefits as may come her way may fairly be implied from the fact of the deception itself. A person may seek shelter, money, and other comforts from the friendship that can be created with someone capable of providing those benefits. If in addition to seeking mere friendship, the acquiring party misrepresents marital status and permits a wedding to occur, the inference can arise that an intent exists to obtain the more substantial benefits arising from marriage.

¶ 18. A contrary inference could have been reached, but we find enough in the record to imply the finding on this point that is necessary to uphold the judgment.

E. Injury.

¶ 19. Law’s estate maintains that because of this misrepresentation, the rightful heirs to the property were deprived of part of their inheritance. That is sufficient injury.

F. Reliance.

¶ 20. To prevail on this element it must be shown that Law relied on the misrepresentation. Not every spoken untruth is actionable as fraud. It is only if that untruth by design and effect induced the hearer to change his position in justifiable reliance on the information. McGee v. Swarek, 733 So.2d 308, 312 (Miss.Ct.App.1998). There is no direct evidence that Law conveyed the residence only because he thought Cluney was his wife. Mr. Law’s sister testified that he had told her after the wedding that he would convey Cluney his house because he was not able to care for himself. The implication was that the conveyance was in exchange or in gratitude for the care that she was providing, which included cooking, cleaning, and other household chores. She also stated this:

Q. [D]id [Law] ever make the statement to you because Dolores is my wife, I am deeding her the property?
A. No, sir, no, sir.
Q. What did he tell you or why did he tell you he was deeding the property to Dolores?
A. Because — so that she would take care of him until he died.
¶ 21. Mr. Law’s aunt also testified. She stated that even before the ineffective ceremony took place, Law stated that he wanted Dolores to have his residence.

¶ 22. There was no other evidence about Law’s intentions, state of mind, or other relevant fact in determining why he would want to convey the property to Clu-ney. The chancellor made a finding that the misrepresentation was material to Law. We interpret that finding as meaning that Law relied on the existence of the marriage in deciding to execute the deed. We accept that proof of reliance could be through inferences. That the marriage was not important to the decision also can arise from inferences.

¶ 23. There was evidence that Law wanted Cluney to have the land in return for the care that she provided to him while he was alive. Testimony established Law had numerous health problems such as hypertension, back problems and poor eyesight. Cluney took care of most of Law’s personal needs from 1992 until his death in 1999, which includes time both before and after the purported marriage. In addition, there was testimony from Law’s aunt that prior to the wedding Law said that he was going to give Cluney the home so that she would have a place to stay.

¶ 24. The chancellor appeared to rely on the fact that the deed twice refers to Cluney as Law’s wife: “we, George W. Law and wife Delores Law, do hereby convey and warrant unto George W. Law and wife, Delores Law....” To us, those references create no inference that Law relied on the marriage in making the conveyance. They are descriptions of the parties which shed no light on whether the truth of that description was central to the desire to execute the deed. The deed also twice named his supposed wife as “Delores.” If it later became known that her actual name was Jane, we would not infer that since he called her Delores in the deed, that her actual name was central to the conveyance. A mere description does not reasonably create an inference of reliance on the truth of the description; it only reveals belief in it. Mr. Law thought that Cluney was his wife. Not to refer to her as such in a legal instrument might have been suggestive of purpose or even of doubt. However, we find no useful inference from employing the natural description.

¶ 25. The record also shows that for about sixteen months the couple lived together without the formality of a marriage. After the wedding, the two lived together without the reality of a marriage. There is no statement from Mr. Law that he was conveying the property because of the marriage.

¶ 26. The reliance issue is in essence a focus on proximate cause. Would Law have deeded the property had the couple just continued to live together without having gone through the process of a marriage? The chancellor found that Law would not have done so, but she had very little on which to base that conclusion.

¶ 27. We do not find that the chancellor could conclude that there was clear and convincing evidence that Law conveyed this house only because of the marriage. The unimpeached evidence was that Clu-ney was quite helpful to Law, that he was willing to live with her for an extended period of time without the benefit of marriage, that he told at least two people that he wanted to leave his house to Cluney because of the care that she was providing, and that Law’s aunt was told this before the wedding. The estate points out that the deed was not executed until after the wedding, but that by itself is opaque and unconvincing evidence of the necessity of marriage for the deed.

¶ 28. The principal basis on which the chancellor’s decision must have rested was speculation that Law would not have wanted to leave his house to Cluney had he known that they were not actually married. There was no evidence of such an intent. There also was too much evidence to the contrary, including that marriage did not seem central to his relationship with Cluney.

¶ 29. What exactly Cluney had in mind may be questioned. Yet, what the estate failed to do was to demonstrate that Mr. Law had in mind executing a deed only because he thought Cluney was his wife. It was the estate’s burden to prove Law’s reliance, and it failed. Therefore, we reverse the chancellor’s decision to set aside this deed. We reinstate the deed and find that it validly conveyed to Cluney the sur-vivorship interest in the property described.

¶ 30. THE JUDGMENT OF THE CHANCERY COURT OF MONROE COUNTY SETTING ASIDE THE CONVEYANCE OF REAL PROPERTY ON THE BASIS OF FRAUD IS REVERSED AND THE DEED IS REINSTATED. ALL COSTS ARE ASSESSED TO THE APPELLEE.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, AND IRVING, JJ., CONCUR.

LEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MYERS AND BRANTLEY, JJ. CHANDLER, J., NOT PARTICIPATING.

LEE, J.,

Dissenting.

¶ 31. The majority finds that no evidence existed to show that Cluney defrauded her supposed husband in efforts to entice him into conveying the property to her; thus, the chancellor erred in cancel-ling the deed. I disagree.

¶ 32. The record shows that Cluney was a less than honest person, lying to the court concerning her prior marriage as well as her education and the use of her name. Cluney now argues on appeal that this Court should believe that, although she lied previously to the chancellor, she is being honest in her assertion that Law’s reason for conveying the property to her was his affection for her. Plus, she claims that no proof existed to show that the conveyance was solely based on Law’s belief that the two were married. I am not swayed to approve Cluney’s argument.

¶ 33. The majority cites the standard that fraud must be proven by clear and convincing evidence and, in its recitation of the “fraud” factors, finds that no direct evidence exists to show that Law conveyed the residence only because he thought Clu-ney was his wife. In reciting the factors, the majority finds that the first six factors weigh against Cluney, but the seventh factor, reliance, is apparently so significant as to “cancel out” the other findings which the majority concludes supports a finding of fraud. I cannot agree.

¶ 34. Cluney knowingly misrepresented the fact that she was not married, lying both to Law and even committing perjury before the chancellor, the false representation was material, Law was ignorant of Cluney’s ongoing deception, and Law’s heirs were harmed by Cluney’s deception. Rebanee is but one factor in this list of many to consider when determining whether to set aside a conveyance due to fraud. I find the majority places too much weight on the “rebanee” factor, to the detriment of the other factors which convincingly indicate that Cluney undoubtedly perpetrated a fraud on Law in efforts to gain his property.

¶ 35. I believe the question of whether or not Law rebed wholeheartedly on his presumption of marriage to Cluney is not so important as to overshadow what ready happened here: Cluney bed to Law about a material fact and, in turn, she has been “rewarded” by receiving the benefit of her betrayal. With the majority’s conclusion, I find that we are slapping Cluney on the wrist for her deceit, yet rewarding her in allowing her to keep the “booty.”

¶ 36. Bigamy is bigamy, and Cluney broke the law by conning Law into marrying her when she knew the marriage was not legal. With the majority’s decision, I am disheartened to find that we are essentially aiding and abetting the wrongdoer. I would find that sanctions are in order against Cluney, as web as find that the chancebor’s decision to set aside the conveyance should be affirmed. Thus, I dissent.

MYERS AND BRANTLEY, JJ„ JOIN THIS SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: THOMAS, J.,

license: Public Domain

text:
    Barry K. HENDERSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01534-COA.
    Court of Appeals of Mississippi.
    June 18, 2002.
    Rehearing Denied July 31, 2002.
    Certiorari Denied Nov. 7, 2002.

      Barry K. Henderson, Pro Se, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorneys for appellee.
    Before KING, P.J., THOMAS, LEE, and IRVING, JJ.
   THOMAS, J.,

for the Court.

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

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

Finding no error, we affirm.

FACTS

¶ 2. On August 18, 1998, Henderson pled guilty to sale of cocaine. The Honorable Robert Walker found Henderson’s guilty plea to be voluntarily, intelligently and knowingly made. Judge Walker then sentenced Henderson as an habitual offender to serve a term of life in the custody of the Mississippi Department of Corrections. On March 18, 1999, Henderson petitioned the lower court for post-conviction relief. The lower court denied this petition.

ANALYSIS

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

¶ 3. In his petition for post-conviction relief, Henderson claims that he received ineffective assistance of counsel; he was subject to an ex post facto application of law when he was sentenced as an habitual offender; his indictment as an habitual offender was defective and he did not voluntarily and intelligently enter a plea of guilty. We address these assertions accordingly.

¶ 4. In support of his claim that he was subject to ineffective assistance of counsel, Henderson claims that his attorney was not adequately prepared for trial, did not investigate the indictment and made no objections to the State’s presentation of evidence against him. Henderson’s claim is addressed under a two-part test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and followed by our supreme court in Stringer v. State, 454 So.2d 468, 476 (Miss.1984). A successful completion of this test is paramount to Henderson’s argument. Henderson bears the burden of demonstrating that both prongs have been met. Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985). Under Strickland and Stringer, Henderson must show that the counsel’s performance was so deficient that it constituted prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Stringer, 454 So.2d at 476. The asserting party must also show that “but for his attorney’s errors, there is a reasonable probability that he would have received a different result in the trial court.” Rankin v. State, 636 So.2d 652, 656 (Miss.1994). Additionally, there is a strong but rebuttable presumption that an attorney’s performance falls within a wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic. Vielee v. State, 653 So.2d 920, 922 (Miss.1995). The Strickland test is applied with deference to counsel’s performance, considering the totality of the circumstances to determine whether counsel’s actions were both deficient and prejudicial. Conner v. State, 684 So.2d 608, 610 (Miss.1996). The test is to be applied to the overall performance of the attorney. Strickland, 466 U.S. at 695, 104 S.Ct. 2052. With respect to the overall performance of the attorney, “counsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy.” Scott v. State, 742 So.2d 1190 (¶ 14) (Miss.Ct.App.1999); Cole v. State, 666 So.2d 767, 777 (Miss.1995); Murray v. Maggio, 736 F.2d 279, 283 (5th Cir.1984).

¶ 5. With this in mind, we find that Henderson received effective assistance of counsel. Therefore, this assertion is without merit.

¶ 6. Henderson then asserts that his right against ex post facto application of the law was violated. Henderson relies on Bell v. State, 726 So.2d 93 (Miss.1998), as authority supporting this argument. Henderson is mistaken as to the application of Bell. In Bell, the indicted offense was for a crime that was committed before the enactment of the habitual offender statute. Id. The offense for which Henderson was indicted as well as the two convictions used to qualify Henderson as an habitual offender were all committed more than fifteen years after the enactment of the habitual offender statute. We should also note that the Bell court also established that a defendant can waive an ex post facto claim by pleading guilty, as Henderson did. Id.

¶ 7. Next, Henderson argues that his indictment as an habitual offender was defective because he only served eleven months for one of the convictions used to qualify him as an habitual offender. Henderson has mixed up his many convictions. The record is very clear as to which convictions were used to qualify Henderson as an habitual offender. The two convictions used to qualify Henderson as an habitual offender were both for the transfer of cocaine, for which he served at least one year and one day per conviction. Therefore, this assignment of error is without merit.

¶ 8. Henderson also complains that he did not voluntarily and intelligently offer a plea of guilty. A plea of guilty is not binding upon a criminal defendant unless it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). Our supreme court held in Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992), in accord with Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), a plea is “voluntary and intelligent” when the defendant is advised concerning “the nature of the charge against him and the consequences of the plea.” Alexander, 605 So.2d at 1172. Specifically, the defendant must be told that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self incrimination. Boykin, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Further, Rule 8.04 of the Uniform Rules of Circuit and County Court Practice also require that the trial judge determine that the defendant understands the maximum and minimum penalties to which he may be sentenced. URCCC § 8.04. “Trial judges are entitled to place great weight upon a defendant’s initial plea under oath.” Templeton v. State, 725 So.2d 764, 767 (Miss.1998). The record reflects that the lower court advised Henderson as to the nature of the charge against him, the consequences of the plea, and the maximum and minimum penalties to which he might be sentenced.

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

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


author: IRVING, J., LEE, J.,

text:
    Gary McCLENDON and Gloria Henry McClendon, Appellants, v. STATE of Mississippi, Appellee.
    No. 2000-KA-02051-COA.
    Court of Appeals of Mississippi.
    Aug. 6, 2002.
    Rehearing Denied March 11, 2003.
    Certiorari Denied Aug. 7, 2003.

      Sharon Henderson, Jackson, attorney for appellants.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS, and IRVING, JJ.
   IRVING, J.,

for the court.

¶ 1. Gary and Gloria McClendon appeal from a judgment of conviction rendered in the Circuit Court of Copiah County, Mississippi, pursuant to a jury verdict which found them guilty of grand larceny and conspiracy to commit grand larceny. In this appeal, the McClendons raise one issue which is whether the verdict is against the overwhelming weight of the evidence. We find that the evidence is sufficient to support Mr. McClendon’s conviction of both offenses. However, do not find the evidence sufficient to support Mrs. McClendon’s convictions; consequently, we reverse and render both of her convictions. We do find the evidence sufficient to support a charge against Mrs. McClen-don of accessory after the fact of grand larceny, but she was not charged with this offense, and it is not a lesser-included offense of the charged offense.

FACTS

¶ 2. On July 5, 2000, Danny Berry, owner of a Chevrolet dealership in Crystal Springs, Mississippi, observed one of his salespersons and two males walking across the highway from his car repair department to the lot where the new vehicles were located. The men left but came back later and looked at a red Tahoe. After they left this second time, Berry sent one of his lot employees to check the red Tahoe that the men had looked at. Upon checking the vehicle, the employee found that the keys bearing a tag marked with the Tahoe’s stock number did not start or open the Tahoe. Berry concluded that the keys had been taken and called the police department.

¶ 3. Officer Gerome Leflore of the Crystal Springs Police Department responded to the call. Berry and his employees explained that the last people they could remember looking at the Tahoe were two men driving a red or maroon Mercedes. Also, they told the officer that one of the men walked with a limp. The employees explained that the two men had come to get the Mercedes repaired but decided against it. As a result of this initial repair request, the employees had taken the tag number of the Mercedes. The tag number was given to Officer Leflore.

¶ 4. During the officer’s discussions with the employees and Berry, they deduced that the two men had taken the keys which fit the red Tahoe and may return that night to steal it. Therefore, Officer Le-flore decided to come back later that night and watch the car lot for any potential thieves. In the meantime, Officer Leflore and Officer Chris Palmer, the lead investigator, ran the car tag number for a registered address and determined that the Mercedes was registered at 3907 Bailey Avenue to Gloria McClendon in Jackson, Mississippi.

¶ 5. Officer Leflore returned to the Chevrolet car lot that night but left around 7:30 or 8:00 p.m. That same night, one of Berry’s employees came back to the car lot in order to complete some paperwork and upon leaving realized that the Tahoe was missing. The police department was notified.

¶ 6. After the police department received the call, Officer Palmer began searching for the Tahoe by going to the address to which the Mercedes was registered, but the Tahoe was not there. Because Officer Palmer was unable to find the Tahoe in Jackson, he alerted other officers to begin looking for the Tahoe and the Mercedes in Crystal Springs. En route back to Crystal Springs from Jackson, he received a call from an Officer Barnes who had stopped a red Mercedes, with two males in it, at a gas station in Crystal Springs. The tag number of the Mercedes matched the tag number of the Mercedes registered to Gloria McClendon.

¶ 7. Officer Palmer went to the location. When he arrived, he discovered that one of the men in the Mercedes walked with a limp. This individual was identified as Gary McClendon, and the other male was identified as Leon McDavid. The officers conducted a pat down of the two men and found an assortment of car keys in their pockets. As a result of this pat down, McClendon and McDavid were arrested. Officer Palmer retained possession of the keys and took McClendon’s cell phone. Thereafter, Palmer took the keys to Berry’s Chevrolet dealership to see if any of the keys fit any of the vehicles at the dealership. One of the keys opened the door to a Tahoe but would not fit the ignition switch.

¶ 8. Shortly after leaving Berry’s dealership, the cell phone, which Officer Palmer had taken from McClendon, rang. Officer Palmer, pretending to be McClendon, answered the phone. A male voice asked Officer Palmer about picking up a vehicle. Officer Palmer arranged to meet the unidentified male in Jackson. When the meeting occurred, Officer Palmer explained to the unidentified male that the man he called on the cell phone was in police custody. Officer Palmer solicited the cooperation of the unidentified male, and he, the unidentified male, and Officer Leflore went back to Crystal Springs. When the officers returned to the police station, McClendon was given his cell phone. Unbeknownst to McClendon, the officers had the unidentified male call McClendon and ask about picking up a vehicle. After the unidentified male spoke with McClendon, he and the officers went to Jackson to meet Gloria McClendon who, in the interim, received a telephone call from Mr. McClendon.

¶ 9. Upon arriving at the McClendons’s residence, they informed Mrs. McClendon that they were there to pick up a vehicle. Mrs. McClendon said that her husband had called and said that they would be coming by; then she got in the vehicle with them and directed them to another residence, later identified as McDavid’s residence, and picked up a box of keys. Thereafter, Mrs. McClendon directed them to the Mississippi Baptist Hospital parking garage. While Officer Palmer was driving through the garage, he noticed a red Tahoe. As a result of seeing this Tahoe, Officer Palmer concocted a reason to leave the garage by telling Mrs. McClendon that the security guard was following them. Officer Palmer told Mrs. McClendon that they would take her home and come back later. The officers and the young man took Mrs. McClendon home and went back to the hospital garage and, using one of the keys from the box of keys obtained from McDavid’s residence, cranked the red Tahoe.

ANALYSIS AND DISCUSSION OF THE ISSUE

1. Sufficiency of the evidence

¶ 10. The McClendons argue that the evidence was insufficient to support the verdict. For this reason, they assert that their motion for a directed verdict, judgment notwithstanding the verdict or alternatively a new trial should have been granted' by the trial court. The McClen-dons assert that the State failed to meet its burden of proving its case. They list specific examples of the State’s failure to carry its minimum burden for establishing guilt.

¶ 11. The standard of review is the same when assessing a judgment notwithstanding the verdict and a directed verdict. Baker v. State, 802 So.2d 77, 81(¶ 13) (Miss.1995). This standard requires us to consider the evidence in the light most favorable to the appellee, giving the appellee the benefit of all favorable inferences which may be reasonably drawn from the evidence. Id. We are required to reverse and render where the facts point overwhelmingly in favor of the appellant that reasonable men could not have found appellant guilty. Id. However, we are required to affirm where substantial evidence of such quality and weight exists to support the verdict and where reasonable and fair minded jurors may have found appellant guilty. Id.

¶ 12. Although the McClendons list examples of evidence favorable to them, for purposes of considering the appropriateness of the trial judge’s denial of the McClendons’s motion, we, must consider all evidence favorable to the State. Consequently, we must exclude the evidence favorable to the McClendons as the jury was entitled, in its discretion, to reject whatever evidence it deemed appropriate. The State’s evidence was presented through the testimony of Officer Chris Palmer, Officer Gerome Leflore, and Danny Berry, while neither of the McClendons testified. Danny Berry’s testimony set the stage because he explained how the Tahoe became missing. Also, he testified that the last men seen looking at the red Tahoe before it was reported stolen had initially requested repairs to a maroon or red Mercedes. Berry explained that his employees in the repair department had taken the ear tag number of the Mercedes for the purpose of repair but gave the number to the police when the keys to the red Tahoe were discovered missing. Officer Leflore confirmed Berry’s story and explained that he responded to the Chevrolet dealership when the keys were initially discovered missing. In addition, he positively identified Gary and Gloria McClendon at trial.

¶ 13. Lastly, Officer Palmer’s testimony tied all loose ends. He testified that the address of the Mercedes was registered to Gloria McClendon. He explained that the Chevrolet employees reported to him that one of the men driving the maroon or red Mercedes walked with a limp and that Mr. McClendon walked with a limp. In addition, he testified that the tag numbers of the Mercedes stopped by Officer Barnes matched the tag numbers of the Mercedes which was driven to Berry’s Chevrolet dealership for repair. More importantly, Officer Palmer testified that he had answered Mr. McClendon’s phone when it was in Palmer’s car. He explained that, as a result of the phone call, he met the unidentified male from Gulfport who arranged with Mr. McClendon to pick up a truck. To effectuate the deal, Mr. McClendon directed the parties to his wife who obtained a box of keys from McDa-vid’s residence, one of which keys fit the red Tahoe which was stolen from Berry’s dealership.

¶ 14. Given this evidence, reasonable jurors could have concluded that Mr. McClendon conspired with McDavid to commit grand larceny. The evidence is also sufficient to support the conclusion that Mr. McClendon was one of the two men who visited Berry’s dealership and that he later participated in the theft of the red Tahoe from Berry’s dealership. However, as previously observed, we do not find the evidence sufficient to support the jury’s determination that Mrs. McClendon participated in a conspiracy to commit grand larceny or the actual theft of the red Tahoe. It certainly appears that she may have been an accessory after the fact, but as we have already observed, she was not charged with being an accessory. Therefore, we hold that the trial judge erred in not granting Mrs. McClendon’s motion for a directed verdict.

¶ 15. The dissent argues that we err in finding that Mrs. McClendon’s motion for a directed verdict should have been sustained. In the dissent’s view, the fact that Mrs. McClendon’s car was used, along with the fact that she knew exactly where to go to get the keys to the stolen Tahoe and was able to lead Officer Palmer to the Tahoe’s location, proves that she was an accessory before the fact. What this argument fails to recognize is that the State presented only a circumstantial evidence case. In such a case, the State’s evidence must exclude every hypothesis consistent with innocence. Deloach v. State, 658 So.2d 875, 876 (Miss.1995) (quoting Murphy v. State, 566 So.2d 1201, 1204 (Miss.1990)). As we will discuss in the paragraphs that follow, a reasonable hypothesis consistent with Mrs. McClendon’s innocence is that she learned of her husband’s theft of the Tahoe after it had occurred.

¶ 16. It is entirely plausible that Mrs. McClendon simply followed instructions which had been given to her by her husband during the telephone conversation. The mere fact that Mr. McClendon had his wife’s car when he came to Berry’s dealership does not prove, as to Mrs. McClen-don, any prior scienter of the plan to steal the Tahoe or participation in the theft. There is nothing criminal or unusual about a husband using his wife’s car. There is no proof that Mrs. McClendon knew anything about the Red Tahoe, including the fact that it was parked in the hospital parking lot. After all, Officer Palmer made it clear during cross-examination that Mrs. McClendon did not mention or point out the Tahoe to him.

¶ 17. Likewise, the fact that Mrs. McClendon retrieved a box of keys from McDavid’s home and directed Officer Palmer to the location where the Tahoe was found does not, in light of the intervening telephone call from her husband, prove prior participation in a conspiracy to steal the Tahoe or the theft of the Tahoe. While we do not know the contents of the telephone conversation, we can at least deduce that Mr. McClendon instructed Mrs. McClendon to go to McDavid’s residence, to get a box of car keys and to direct the unidentified male and Officer Palmer to the Baptist Hospital parking garage. We know this much because when the unidentified male told Mr. McClendon that he had come to pick up the vehicle, Mr. McClendon told the unidentified male that McClendon would get McClendon’s wife to get the keys for them because he had run into some problems. However, this does not prove that Mrs. McClendon possessed any prior knowledge of Mr. McClendon’s plans or that she had participated in the planning of or the actual theft of the Tahoe. Again, as already observed, there is nothing criminal or unusual about a wife following her husband’s instructions.

¶ 18. On these facts, we cannot say that the State’s proof against Mrs. McClendon excluded every reasonable hypothesis consistent with her innocence because a reasonable hypothesis consistent with her innocence is that she learned of the theft of the Tahoe after it had occurred. Any conclusion to the contrary is necessarily based on utter speculation and conjecture as to what might have been said or discussed, if anything, between Mr. and Mrs. McClendon prior to his trip to Berry’s Chevrolet.

2. Weight of the evidence

¶ 19. A motion for a new trial recognizes some evidence in support of the verdict but seeks a new trial on the basis that the weight of the evidence is against the verdict. A motion for a new trial implicates the discretion of the trial judge. This Court will reverse a denial of a motion for a new trial only when the denial amounts to an abuse of discretion. Baker, 802 So.2d at 81(¶ 14). Because we find that sufficient evidence exists to support the verdict against Mr. McClendon, we also find that the judge did not abuse his discretion in denying Mr. McClendon’s motion for a new trial.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY AS TO APPELLANT, GARY MCCLENDON, OF CONVICTION AS A HABITUAL OFFENDER OF COUNT I, GRAND LARCENY, AND COUNT II, CONSPIRACY TO COMMIT GRAND LARCENY, AND SENTENCE OF FIVE YEARS ON EACH COUNT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH SAID SENTENCES TO RUN CONSECUTIVELY TO EACH OTHER AND TO ANY OTHER SENTENCE IMPOSED IS AFFIRMED, AND THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY AS TO GLORIA MCCLENDON IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, AND CHANDLER, JJ., CONCUR. LEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES, MYERS AND BRANTLEY, JJ.

LEE, J.,

concurring in part, dissenting in part:

¶ 21. While I concur with the majority’s affirmance of Gary McClendon’s convictions on both counts, I disagree with the finding of reversal with regard to Gloria McClendon’s convictions. The record is clearly sufficient to support the jury’s finding concerning Mrs. McClendon’s guilt on both charges of grand larceny and conspiracy, and I would affirm her conviction.

¶ 22. As pointed out by the majority, the Mercedes automobile used in the commission of this felony was titled in Mrs. McClendon’s name, providing information for Officer Palmer to go to her home. At the trial, Officer Palmer testified that he went undercover to Mrs. McClendon’s home and told her he was there to pick up some vehicles, and in response, she took him to McDavid’s house where she retrieved a box of keys. . Thereafter, they went to the parking garage at Baptist hospital where they drove around until a guard started following them, which prompted Officer Palmer to suggest they leave and come back later. Officer Palmer testified that he saw the missing red Tahoe from Danny Berry Chevrolet in the garage, and that one of the keys he had retrieved from Gary McClendon did actually start this Tahoe.

¶ 23. The question surfaces then, how could Gloria McClendon be ignorant of her husband’s scheme if her car was used in the initial act, she knew exactly where to go to get the keys to this vehicle and she was able to lead Officer Palmer to the exact location where the vehicle was parked? I am quite convinced, as was the jury by virtue of their verdict, that Mrs. McClendon was privy to the acts of her husband in stealing the vehicle, and that she had some arrangement with him to take the would-be buyer to the vehicle to pick up.

We will vacate a jury verdict only if the verdict is “so contrary to the overwhelming weight of the evidence that, to allow it to stand would be to sanction an unconscionable injustice.” In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.

Richmond v. State, 751 So.2d 1038 (¶ 34) (Miss.1999) (citation omitted). I believe the majority has failed to review the evidence in a light favorable to the State, thus resulting in their improper decision to reverse Mrs. McClendon’s convictions. “ ‘[T]he jury is the sole judge of the credibility of witnesses, and the jury’s decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict.’ On appeal, this Court ‘is not to sit as jurors and retry the case.’ ” Newell v. State, 754 So.2d 1261(¶ 9) (Miss.Ct.App.1999). As stated, we cannot usurp the jurors’ responsibility to weigh the evidence; rather, we merely review the evidence in a light favorable to the verdict to determine if the jurors’ decision would sanction an unconscionable injustice were it permitted to stand. The facts here support the jurors’ finding that Mrs. McClendon was privy to the theft plan; otherwise, she could never have taken Officer Palmer to the other house to locate the box of keys which led to the trip to the hospital parking garage where the Tahoe was found. To look the other way and find that all of this was mere coincidence is to go beyond our authority.

¶ 24. The majority says, at most, Mrs. McClendon could have been guilty of accessory after the fact; however, since she was not indicted for that offense and since it was not a lesser-included offense of the crimes for which she was indicted, we should chalk this up to the prosecutor’s error. I disagree. Looking to the definitions of both accessory before and after the fact, I find no question that Mrs. McClendon was guilty as an accessory before the fact, as well as a conspirator with her husband:

The elements of accessory after the fact are that (1) a completed felony has been committed; (2) the accused concealed, received, relieved, aided, or assisted a felon, knowing that such person had committed a felony; and (3) such assistance or aid was rendered with the intent to enable such felon to escape or avoid arrest, trial, conviction, or punishment after the commission of such felony. One of the critical distinctions between being an accessory before and after the fact is whether the felony is complete at the time assistance is rendered. One is an accessory before the fact when assistance is rendered the principal before the felony is completed in order to help said principal in commission or completion of the offense.... An accessory before the fact necessarily “participates in the design of the felony.” In contradistinction, an accessory after the fact is a person assisting one who has completed the commission of a felony to avoid being apprehended, arrested, convicted, etc.

Gangl v. State, 539 So.2d 132, 136 (Miss.1989) (emphasis added). “Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have [sic] been previously convicted or not.” Miss.Code Ann. § 97-1-3 (Rev.2000). But for Mrs. McClendon’s acts, the would-be buyer would not have located the vehicle that Gary stole; thus, Mrs. McClendon was aware of the plan from the beginning and helped her husband, the principal, as an accessory before the fact to participate in the design of the felony.

¶25. Concerning conspiracy, although no direct evidence was presented that Mrs. McClendon had entered into an agreement with her husband to commit the larceny, the circumstantial evidence indicates otherwise. “Conspiracy agreements need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts and conduct of the alleged conspirators.” Echols v. State, 759 So.2d 495(¶ 16) (Miss.Ct.App.2000).

¶ 26. The majority claims that the State’s evidence presented only a circumstantial case. We recognize that in such cases, “the jury, to convict, must believe the defendant guilty beyond all reasonable doubt and to the exclusion of every reasonable hypothesis other than that of guilt. The reviewing court will not disturb a circumstantial evidence conviction unless it is opposed by a decided preponderance of evidence.” Sudduth v. State, 562 So.2d 67, 71-72 (Miss.1990). As stated, the jury was to exclude reasonable hypotheses other than guilt, and it is not this Court’s prerogative to concoct possible scenarios not presented at trial to explain Mrs. McClen-don’s behavior, which I believe the majority has done. The majority claims it is “entirely plausible” that Mrs. McClendon learned of the scheme after the fact. Again, we are not to weigh what might have been plausible, but are to merely review the evidence the jury had before it to determine if a preponderance of the evidence supported the verdict.

¶ 27. We finally note that Mrs. McClen-don declined to testify in her own defense.

While it is the right and privilege of a defendant to refrain from taking the witness stand, and no presumption is to be indulged against him for exercising that right, still the testimony of the witnesses against him may be given full effect by the jury, and the jury is likely to do so where it is undisputed and the defendant has refused to explain or deny the accusations against him.

McGilvery v. State, 497 So.2d 67, 68 (Miss.1986).

¶ 28. The majority goes to great lengths to find reasons for Mrs. McClen-don’s non-participation. Nonetheless, the evidence viewed favorably to the verdict was substantial and overwhelming that she did actively participate, and the jury viewed this evidence and reasonably found her guilty. It is not within the province of this Court to overturn the jury’s verdict, and I would affirm Mrs. McClendon’s conviction.

BRIDGES, MYERS, AND BRANTLEY, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

      . Although the McClendons frame the issue as the verdict being against the weight of the evidence, they actually argue both the weight and sufficiency of the evidence.

      . Officer Barnes’s full name was not given during trial and he did not testify.

      . Mr. McDavid was also indicted for conspiracy to commit grand larceny and theft. However, his case is not a part of this appeal.

      . Officer Palmer testified to this fact during the hearing on the motion to suppress.


text:
    McKinzley BOUNDS, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01467-COA.
    Court of Appeals of Mississippi.
    Nov. 5, 2002.
    Rehearing Denied Jan. 7, 2003.
    Certiorari Denied April 17, 2003.

      Bradley Stuart Peeples, Coffeeville, Bobby T. Vance, Batesville, Attorneys for Appellant.
    Office of the Attorney General, by John R. Henry, Attorney for Appellee.
    Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the Court.

¶ 1. McKinzley Bounds, Jr. was convicted of the sale of cocaine and sentenced to twenty years in the custody of the Mississippi Department of Corrections. Aggrieved he asserts the following on appeal:

I.THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO INSURE A FAIR AND IMPARTIAL JURY.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING INTO EVIDENCE VIDEOTAPE AND HEARSAY TESTIMONY CONTRARY TO MISSISSIPPI RULES OF EVIDENCE.

III. THE JURY VERDICT WAS AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

Finding no error, we affirm.

FACTS

¶ 2. McKinzley Bounds, Jr. was arrested for the sale of cocaine in Water Valley. Pam Bell was a confidential informant in the case at bar. Bell acted as the buyer for the North Mississippi Narcotics Unit in order to prevent prosecution against her for drug charges, which is a very routine practice in this field of law enforcement. Prior to the interaction with Bounds, Bell was put through the usual pre-buy routine. She was searched, the car was searched, a microphone was placed on her to maintain audio contact, and a video recorder was placed in the vehicle to capture the events as they unfolded. Accompanying Bell on this buy was Agent Sandy Townsend.

¶ 3. Townsend and Bell pulled their vehicle in front of a brick house on Buena Vista Drive. Luster Pomlee approached the vehicle and Bell asked Pomlee if he knew where Kunta was. He stated he did not. Soon after this Bounds arrived. Bounds was the target of the drug bust. Agent Townsend testified that Bounds walked to the driver’s side door and asked, ‘What we need,” to which Bell replied, ‘We want to get a ball.” Bounds then walked away for a minute behind some bushes by a car which was parked there. He returned and told Bell to come inside, at which point Bell, Bounds, Pomlee, and another unidentified male entered the house. Bell entered the house with $125 provided to her by the narcotics agency. A couple of seconds later Bell exited the house, got into the vehicle and handed Agent Townsend a bag containing crack.

¶ 4. The testimony of Townsend, Bell, and Thomas, one of the officers working the case, are all corroborated by the videotape. Audio equipment malfunctioned and was unable to record what was said but still was able to capture sounds and verbal contact and transmit them. Therefore, the agents listening heard everything that took place but a recording was not able to be preserved. Agent Thomas, one of the agents listening to the audio transmission, testified at trial as to what he perceived of the scene. His account was based on the video and audio transmission.

I. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN FAILING TO INSURE A FAIR AND IMPARTIAL JURY?

¶ 5. Bounds asserts that he was not provided with a jury venire of a fair cross-section of his community. He also asserts that the trial court erred in not conducting a Batson hearing to determine if the State properly used its peremptory challenges or if they were racially motivated. Bounds made no objection in the trial court to any of the State’s peremptory strikes, he never asked that the State articulate race neutral reasons for those strikes, nor did he object to the final composition of the jury. Conner v. State, 632 So.2d 1239, 1264 (Miss.1993)(overruled on other grounds). Bounds only objected to the make up of the venire and stated that he objected to the way the State exercised its strikes. For these reasons, this issue is deemed waived for the purposes of this appeal; procedural bar notwithstanding, we nonetheless find this issue to be without merit.

¶ 6. In Lanier v. State, 533 So.2d 473 (Miss.1988), the Mississippi Supreme Court enumerated the requirements necessary for a defendant to prove a violation of the fair cross-section requirement for an impartial jury:

(1) the group alleged to be excluded is a “distinctive” group in the community;
(2) the representation of this group in venire from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and
(3) this under representation is due to systematic exclusion of the group in the jury selection process.

Lanier, 533 So.2d at 477. In rejecting the defendant’s claim, the court in Lanier noted that the defendant offered no proof that the county’s method of drawing veniremen was discriminatory. Id. Here, Bounds makes no argument backing his position except to object to the makeup of the jury venire. Rather than prove the third element, Bounds asks this Court to assume that the low representation of black persons is part of a systematic discriminatory practice within Yalobusha County until the State proves otherwise. Therefore, just like the defendant in Lanier, Bounds offers no proof that Yalobusha County’s random jury selection process was discriminatory; therefore, Bounds’ assignment of error is without merit.

¶ 7. A Batson analysis is a three part inquiry. First, the objecting party is required to make a prima facie showing that peremptory strikes are being exercised on the basis of race. Second, after the objecting party makes such a showing the burden then shifts to the party exercising the strikes to offer a race-neutral reason for the challenge. Third, the court must determine if the opposing party has met the burden of proving that purposeful discrimination was the motive behind the challenges. Taylor v. State, 733 So.2d 251 (¶ 30) (Miss.1999).

¶ 8. The State used six peremptory strikes, five of which were used on white individuals. There was no Batson claim made until Bounds’ motion to strike the jury venire failed. The objection was stated that maybe Bounds had a problem with the State’s exercise of its peremptory challenges. This was not a proper objection.

II. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY ALLOWING INTO EVIDENCE VIDEOTAPE AND HEARSAY TESTIMONY CONTRARY TO MISSISSIPPI RULES OF EVIDENCE?

¶ 9. On appeal, Bounds argues that the admission of the tape into evidence violated Rules 403 and 404(b) of the Mississippi Rules of Evidence. He also contends on appeal that the testimony of Agent Thomas regarding what he heard during the audio transmission was hearsay testimony in violation of Rules 803 and 804 of the Mississippi Rides of Evidence.

¶ 10. In order to preserve an objection on appeal, the defendant must object on the same ground at trial. Norman v. State, 302 So.2d 254, 259 (Miss.1974). Failure to object at trial waives the objection on appeal. Id. Judicial discretion is required to determine the admissibility of evidence under this rule, and the judge’s ruling will not be overturned on appeal except for an abuse of discretion. Leatherwood v. State, 548 So.2d 389, 401 (Miss.1989).

¶ 11. Appellate review of determinations of whether to admit hearsay is limited to whether an error of law occurred, and if it did not, then appellate review is limited to the abuse of discretion standard. Baine v. State, 606 So.2d 1076, 1078 (Miss.1992). Failure to lodge a protest to hearsay evidence at the trial level prevents us from considering the matter on appeal as we will not hold a court in error on a matter that was not presented for its review. Hall v. State, 691 So.2d 415, 420 (Miss.1997). Mere errors in evi-dentiary rulings by the trial court, unless accompanied by some adverse effect on “a substantial right” of the defendant, do not require reversal on appeal. M.R.E. 103(a); Newsom v. State, 629 So.2d 611, 614 (Miss.1993). It is the duty of the appellant, not only to demonstrate error in the introduction of the evidence, but also to show the prejudice to the defense that arose from that erroneous ruling. See Flowers v. State, 726 So.2d 185 (¶ 17) (Miss.Ct.App.1998).

¶ 12. Bounds cites a plethora of cases none of which pertain in any way to the case sub judice. At trial, Bounds made no objection at all regarding the admission of the tape into evidence. The introduction of the video into evidence was proper as the video corroborated the testimony of the agents and the confidential informant, Bell. The tape also provided evidence of Bounds’ identity. To the extent that the videotape was inaudible, that was a factor for the jury to weigh in determining whether the State proved beyond a reasonable doubt that Bounds participated in the cocaine sales. See Middlebrook v. State, 555 So.2d 1009, 1013 (Miss.1990).

¶ 13. Bounds objects to the testimony of Agent Thomas. Bounds’ objections at trial were in no way related to hearsay objection but were regarding the quality of Thomas’ knowledge regarding what was occurring and being said. Specifically Bounds questioned, “I don’t know how he can tell what she is asking right there,” regarding statements being made by Bell. A trial judge cannot be put in error on a matter not presented to him for his decision. Mills v. Nichols, 467 So.2d 924, 931 (Miss.1985). A contemporaneous objection is required to preserve an error for appellate review. Smith v. State, 530 So.2d 155, 161-62 (Miss.1988). Bounds is subject to a procedural bar on this issue. Chase v. State, 645 So.2d 829, 835 (Miss.1994).

III. WAS THE JURY VERDICT AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE?

¶ 14. The standard of review in determining whether a jury verdict is against the overwhelming weight of the evidence is well settled. “[T]his Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Dudley v. State, 719 So.2d 180, 182 (¶ 8) (Miss.1998).

¶ 15. Bounds asserts no particular reason why the verdict is against the weight and sufficiency of the evidence. He states only that the verdict is unconscionable. While his vigor in regards to not wanting to remain incarcerated is understood, this Court addresses issues based on their merit. This issue lacks merit.

¶ 16. 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. This Court does not have the task of reweighing 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.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF YALOBUSHA COUNTY OF CONVICTION OF THE SALE OF COCAINE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $5,000 IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO YALOBUSHA COUNTY.

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


author: IRVING, J.,

text:
    Pete J. NOSSER, III, Daria Nosser Hood, Paul W. Nosser, David J. Nosser and Lee Anne Nosser, Appellants/Cross-Appellees, v. B.P. BUFORD and Buford Partners, L.P. and B.P. Buford and Buford Partners, L.P., Appellees/Cross-Appellants, v. FIRST BANK, Appellee/Cross Appellee.
    No. 2001-CA-01243-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2002.
    Rehearing Denied March 18, 2003.
    Certiorari Denied Aug. 7, 2003.

      Landman Teller, Jr., W. Briggs Hopson, III, Vicksburg, attorneys for appellants.
    Dennis L. Horn, Madison, David M. Ses-sums, Vicksburg, attorneys for Appellees.
    Before KING, P.J., IRVING, and BRANTLEY, JJ.
   IRVING, J.,

for the court.

¶ 1. Pete J. Nosser, III, Daria Nosser Hood, Paul W. Nosser, David J. Nosser and Leigh Ann Nosser (the Nossers) appeal from a final judgment, rendered in the Chancery Court of Warren County by a special chancellor, which (1) dismissed their claim for adverse possession to a tract of land also claimed by B.P. Buford and Buford Partners, L.P. (Buford), and (2) established the boundary line between the Nossers’ and Buford’s property, including the location of a road as it related to the boundary of the Nossers’ and Buford’s property. Buford filed a cross-appeal from that portion of the final judgment which dismissed their claim against First Bank for indemnity of any loss suffered as a result of the Nossers’ action against them, including the cost of their defense of the Nossers’ claim.

¶ 2. The Nossers assert that the trial court erred in finding that they failed to establish their claim of adverse possession, in finding that B.P. Buford was not precluded from asserting legal title to the disputed tract, and in accepting inferior evidence for the establishment of the location of Freeman Road, a road common to both the Nossers’ and Buford’s property.

¶3. Buford assigns error to the trial court in excluding evidence of the Nossers’ recognition of First Bank’s superior title, in excluding evidence of the Nossers’ attempt to purchase the disputed property from First Bank, in excluding the testimony of William Shappley, a Vicksburg attorney, and in dismissing their claim for indemnity against First Bank.

¶ 4. Finding no error, we affirm the trial court on both the direct and cross-appeal.

FACTS

¶ 5. The Estate of Pete J. Nosser, Jr., by its executors, Ouida W. Nosser and Pete J. Nosser, III, and the Pete J. Nosser Testatmentary Trust, by its trustee, Ouida W. Nosser, filed in the Chancery Court of Warren County a petition to remove a cloud on their title by Buford and to confirm title in them to a 2.1 acre tract of land. The Nossers claimed record title as well as title by adverse possession. Alternatively, they sought a judgment against Buford, under the theory of unjust enrichment, for improvements they had allegedly made to the property. Buford answered the Nossers’ complaint, denied the material allegations of the complaint regarding the Nossers’ claim of ownership by record title and by adverse possession, and counterclaimed for confirmation and quieting of their title against the Nossers.

¶ 6. After being sued by the Nossers, Buford demanded that First Bank, their predecessor in title, provide them a defense to the Nossers’ lawsuit and indemnify them for any loss suffered as a result of the Nossers’ lawsuit. First Bank responded by filing an action against Buford for a declaratory judgment that First Bank owed Buford neither a defense to the Nos-sers’ action nor an indemnification for any loss occasioned by the Nossers’ suit. The First Bank action was consolidated with the Nosser/Buford action.

¶ 7. Prior to 1981, W.J. Runyon Jr. was the owner of all of the land in controversy. On June 8, 1981, Runyon executed a deed of trust to First Bank of Southwest Mississippi (predecessor of First Bank). The Runyon/First Bank conveyance involved three parcels of land all having metes and bounds descriptions. A portion of the western boundary of the first parcel was described as the center line of old Freeman Road.

¶ 8. On July 30, 1981, Runyon conveyed the following parcel of land to Pete J. Nosser, Jr.:

Part of Section 5, Township 16 North, Range 4 East, Warren County, Mississippi, described as beginning at a point on the East right of way line of Highway No. 61 Bypass, at Station 156 + 00 of the East lane of said Highway, thence along the right of way turn out to Station 2 12.3 of Bowie Road North 21 degrees 24 minutes East, 234.5 feet to the South right of way line of said Bowie Road, thence North 89 degrees 23 minutes East, 300.0 feet to Station 5 + 12.3 of said road, thence leave said right of way and run South 16 degrees 00 minutes West, 300.0 feet, thence South 987 degrees 32 minutes West, 304.7 feet to the East right of way line of said Highway 61 Bypass East Lane at Station 155 + 20 of said Highway, thence along said right of way line North 01 degree 07 minutes East, 80.0 feet to the point of beginning, containing 2.1 acres.

¶ 9. First Bank foreclosed its deed of trust, thereby acquiring title to all land described in the Runyon/First Bank deed of trust. Title was acquired by a corrected trustee’s deed, dated November 15, 1988. On December 10, 1996, First Bank executed a special warranty deed to B.P. Buford conveying to him all of the property acquired by First 'Bank pursuant to the trustee’s deed for the foreclosed Runyon/First Bank deed of trust. On January 16, 1998, B.P. Buford conveyed the same property to Buford Partners, L.P., a limited partnership.

¶ 10. After a hearing on the merits of the Nossers’ complaint, Buford’s counterclaim and First Bank’s complaint for a declaratory judgment, the special chancellor (1) dismissed with prejudice the Nos-sers’ claim for adverse possession of the subject property and their claim for unjust enrichment, (2) established the location of Freeman Road, with respect to the Buford’s property and the boundary line between Buford’s and the Nossers’ property, as designated and set forth in the 1997 plat of Gee and Strickland, Inc., (3) granted First Bank a declaratory judgment that it owed Buford neither a defense against the Nossers’ claim nor indemnity for any loss which Buford might suffer as a result of the Nossers’ action, and (4) dismissed with prejudice Buford’s counterclaim against the Nossers.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 11. This Court will not disturb the factual findings of a chancellor when supported by substantial evidence unless we can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong or applied an erroneous legal standard. Morgan v. West, 812 So.2d 987, 990(¶ 7) (Miss.2002) (citing Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996)). In matters that are questions of law, this Court employs a de novo standard of review and will reverse only for an erroneous interpretation or application of the law. Id. at 990(¶ 8) (citing Bank of Mississippi v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992)).

Adverse Possession

¶ 12. The Nossers first allege that the trial court incorrectly applied Mississippi adverse possession law as it pertains to the facts of this case. In order to establish adverse possession, the claimant must show that the possession was: “(1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Robertson v. Dombroski, 678 So.2d 637, 642 (Miss.1996) (citing Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152-53 (Miss.1992)). The burden of proof is on the adverse possessor to show by clear and convincing evidence that each element is met. Id.

¶ 13. The principle is accepted that both the quality and quantity of pos-sessory acts necessary to establish a claim of adverse possession may vary with the characteristics of the land. Johnson v. Black, 469 So.2d 88, 90 (Miss.1985). Adverse possession of unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands. Id. at 90 (citing Kayser v. Dixon, 309 So.2d 526, 529 (Miss.1975); McCaughn v. Young, 85 Miss. 277, 292-293, 37 So. 839, 842 (1905)). The question in the end is whether the posses-sory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder upon notice that the lands are held under an adverse claim of ownership. Id. at 90-91, 37 So. 839 (citing Snowden & McSweeny Co. v. Hanley, 195 Miss. 682, 687, 16 So.2d 24, 25 (1943)).

¶ 14. The Nossers argue that their acts of hunting, cutting firewood, removing dirt, paying taxes, and giving permission to political candidates to place signs on the property were sufficient acts to demonstrate the Nossers’ actual control of the property. In 1993, the Nossers conducted major leveling operations on the land. From 1993 through 1996, several newspaper articles were published in The Vick-burg Post, a local newspaper, concerning the Nossers’ planned building operations. The Nossers assert that the character and duration of these acts demonstrate they should prevail on their adverse possession claim.

¶ 15. After carefully analyzing the Nos-sers’ acts of adverse possession and the qualities and characteristics of those acts, the chancellor found that the Nossers’ sporadic cutting of firewood by members and others on unspecified dates, their shoveling of dirt and its removal by pickup truck on unspecified dates, bush hogging on unspecified dates in unspecified areas, squirrel hunting by Rusty Nosser numerous times from 1982 to 1984 and by David Nosser five or six times a year from mid-October to mid-November of 1981 through 1985, and the Nossers’ granting of permission for election signs to be placed on the land in election years were not sufficient acts to constitute adverse, hostile, open, notorious, visible, continuing and exclusive possession contemplated by statute. The chancellor also found that the property in controversy was a loess bluff. He determined that the elevation of the bluff increased from south to north with the top of the bluff on the north end being approximately 30 to 40 feet above Bowie Road and Highway 61 Bypass.

¶ 16. Paul Nosser, David Nosser, and William Allen Hood all testified that the bluff was elevated and heavily wooded. They also admitted that most of their activities on the property from 1981 through 1992 would not have been seen by the public. These acts, by their quantity and character, would not be sufficient to fly the Nossers’ flag over the lands and put Buford, the record title holder, on notice that his land was being held under an adverse claim of ownership.

¶ 17. The Nossers also assert that their payment of taxes on the property from 1981 until the date of the trial was a sufficient act of adverse possession. However, payment of taxes is simply one incident to possession and whether an adverse possessor has paid property taxes on the land in controversy is not dispositive of the claim of ownership. Hearn v. Shelton, 762 So.2d 792, 795(¶ 7) (Miss.Ct.App.2000) (citing Houston v. U.S. Gypsum Co., 652 F.2d 467, 474 (5th Cir.1981)); see also Leavenworth v. Reeves, 106 Miss. 722, 731, 64 So. 660, 663 (1914).

¶ 18. The Nossers’ 1993 major leveling operations on the property were sufficient acts of adverse possession. However, from 1993 to the date of the filing of the Nossers’ lawsuit is only five years, far short of the ten years required to claim title by adverse possession. Therefore, we affirm the chancellor’s dismissal of the Nossers’ adverse possession claim.

Defendant’s Knowledge of Plaintiffs Adverse Possession

¶ 19. The Nossers also contend that Buford should be precluded from any claim of ownership to the disputed land because Buford had actual knowledge of the Nossers’ claim of ownership when he purchased the land. Citing Hollingsworth as authority, the Nossers argue that they had both “record title claim” and were in actual possession of the disputed land. According to the Nossers, simple inquiry by B.P. Buford at the time he purchased the land would have apprized him of their claim to the land. Therefore, the Nossers argue that Buford should have done something to oust them from the property and, because he failed to do so, he should be precluded from asserting a claim to the subject property.

¶ 20. In Hollingsworth, the Hollingsworths received a deed to property but failed to promptly record their deed. Hollingsworth, 609 So.2d at 423. Approximately a year later and after the death of the grantor of the Hollingsworths’ deed, the descendants of the Hollingsworths’ grantor conveyed a deed of trust to the Bank of Mississippi which included eighteen acres of the land previously deeded to the Hollingsworths. Id. The bank immediately recorded its deed of trust, and the Hollingsworths recorded their deed over a year later. Id. When the bank moved to foreclose on its deed of trust, the Hollings-worths filed for an injunction alleging that at all times after they received their deed to the land, they “were in open and obvious actual occupancy and possession” of the eighteen acres. Id. The bank argued that because it filed its deed of trust prior to the Hollingsworths’ filing their warranty deed, the Hollingsworths received constructive notice that the bank had a deed of trust hen on the subject property. Id. The bank reasoned that the Hollings-worths should be precluded from asserting a claim to the disputed eighteen acres.

¶ 21. The trial court found that the Hollingsworths had enclosed the property in a fence prior to the bank’s deed of trust being recorded. Id. The court also determined that the fence was visible to any one making a physical inspection of the premises. Id. Consequently, the trial court held that, because the bank failed to make a reasonable inspection of the premises and a reasonable inquiry to determine the land’s ownership, the bank was barred from claiming any benefits under the recording statute. Id. As a result, the trial court canceled the bank’s deed of trust hen on the property. Id. The trial court’s ruling was upheld on appeal. Id. at 425-26.

¶ 22. Hollingsworth is distinguishable on the facts. The sole issue in Hollings-worth was whether the Hollingsworths’ in-dicia of ownership (i.e. their construction of a fence around the disputed property) was sufficient to put the bank on notice of the Hollingsworths’ assertion of ownership even though the Hollingsworths had failed to record their warranty deed prior to the bank’s recording its deed of trust. The question here is whether Buford’s knowledge, if any, of the Nossers’ acts of adverse possession, is sufficient to defeat Buford’s claim of ownership to the disputed property notwithstanding the fact that the acts of adverse possession have not persisted for the statutory requirement of ten years. An affirmative answer would have the effect of shortening the period for adverse possession from a period of ten years to when the record titleholder first learns of acts adverse to his exclusive ownership. Hollingsworth is further distinguishable in that here, unlike in Hollings-worth, First Bank’s deed of trust was granted and filed before, not after, the conveyance to the Nossers. Therefore, Hollingsworth is adverse to their position. Had the Nossers made a reasonable inquiry of the county deed of trust records, they would have discovered First Bank’s superior claim.

Establishment of the Location of Freeman Road

¶ 28. The Nossers’ final issue is whether the chancery court erred in its use of “inferior evidence” to establish the location of Freeman Road. Both parties concede the importance of establishing Freeman Road to settle the present dispute.

¶ 24. Evidence must be sufficient to support a chancellor’s determination of boundary fines between properties. Farris v. Thomas, 481 So.2d 318, 319 (Miss.1985).

¶ 25. The Nossers introduced a plat of the disputed land. The plat was prepared in 1980 by Buford Edwards, a registered land surveyor. The plat did not show Freeman Road. The Nossers also presented two witnesses, William Allen Hood and Paul W. (Rusty) Nosser, to establish the location of Freeman Road. Hood testified that he entered the disputed land two months after Pete Nosser, Jr. bought the property. He also claimed to recognize the property fines of the land. However, Hood admitted he did not have the Edwards plat with him at that time. Rusty Nosser testified that he had entered the property from Freeman Road, and as he walked North on the Road, a fence was on his left. The Nossers also presented Hugh Logue, a resident of Freeman Road. Logue testified that Freeman Road ran north and south, but Logue lacked knowledge as to the specific path the road took after passing his home.

¶ 26. The Bufords presented Joe Strickland, a licensed Mississippi surveyor. Strickland performed a survey of the disputed area and offered testimony as to the location of Freeman Road. Strickland’s survey was based on right of way plans for Bowie Road, right of way plans for U.S. Highway 61 North, and county land records. Noting that the Nossers had made no attempt the obtain their own surveyor, the chancellor found the Strickland survey sufficiently credible to determine the location of Freeman Road. We find the chancellor’s findings supported by sufficient and credible evidence.

Buford’s Cross-Appeal

¶27. Our disposition of the issues on direct appeal has mooted all issues on the cross-appeal except Buford’s contention that the trial court erred in not requiring First Bank to provide him with a defense of the litigation. The trial court determined that Buford received title from First Bank by special warranty deed and that there had been no breach of that warranty. We find nothing wrong with this finding as it is fully supported by the evidence. Accordingly, we affirm the trial court’s finding that First Bank has no liability for Buford’s defense and owes no indemnity to Buford.

¶ 28. THE JUDGMENT OF THE CHANCERY COURT OF WARREN COUNTY IS AFFIRMED AS TO DIRECT AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Subsequent to filing the lawsuit, Ouida Nos-ser died, and Pete J. Nosser, III, Daria Nosser Hood, Paul "W. Nosser, David J. Nosser, and Leanne Nosser, all heirs of Pete J. Nosser and beneficiaries of the Nosser estate, were substituted in the place of the Estate of Pete J. Nosser, Jr.


author: LEE, J.,

text:
    Sam GANTENBEIN, Appellant, v. Valerie GANTENBEIN, Appellee.
    No. 2001-CA-01563-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.
    Rehearing Denied March 4, 2003.
    Certiorari Denied Aug. 7, 2003.

      Talmadge D. Littlejohn, New Albany, attorney for appellant.
    J. Mark Shelton, Tupelo, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES, LEE, and MYERS, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Valerie Gantenbein and Sam Gan-tenbein were married December 16, 1994, and had a son, Timothy, born July 17, 1997. Valerie and Sam separated on January 27, 2000, and Valerie filed for divorce citing habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. Sam then filed a counter-complaint citing habitual cruel and inhuman treatment and adultery or, in the alternative, irreconcilable differences. The chancellor granted Sam a divorce from Valerie on the grounds of adultery. The chancellor awarded custody of Timothy to Valerie, granted visitation rights to Sam, and ordered Sam to pay child support. Sam appeals to this Court asserting that the chancellor erred in awarding custody of Timothy to Valerie. Finding no merit, we affirm.

DISCUSSION OF ISSUE

I. DID THE CHANCELLOR ERR IN AWARDING CUSTODY OF THE MINOR CHILD TO VALERIE GAN-TENBEIN?

¶ 2. The standard of review in child custody cases is similar to the standard in all domestic relations cases. A reversal is proper if the chancellor is manifestly in error or has applied an erroneous legal standard. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995). Appellate courts need only to determine if the chancellor’s decision was supported by credible evidence. Lee v. Lee, 798 So.2d 1284 (¶ 22) (Miss.2001).

¶ 3. It is well settled that in child custody cases, the polestar consideration is the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The factors used to determine what is in the “best interests” of a child with regard to custody are: (1) age, health and sex of the child; (2) determination of the parent that had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of the parent and child; (7) moral fitness of the parents; (8) the home, school and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Id. However, an appellate court must find a chancellor in error where the chancellor improperly considers and applies the Albright factors. Hollon v. Hollon, 784 So.2d 943(¶ 11) (Miss.2001).

¶ 4. In determining whether the chancellor abused his discretion in applying the Albright factors, the appellate court “review[s] the evidence and testimony presented at trial under each factor to ensure [the chancellor’s] ruling was supported by [the] record.” Hollon, 784 So.2d at (¶ 13). Furthermore, differences in religion, personal values, and lifestyles should not be the sole basis for custody decisions. Albright, 437 So.2d at 1005.

¶ 5. We must now review the evidence and testimony presented at trial under each Albright factor to determine whether the ruling by the chancellor was supported by the record.

Age, Health and Sex of the Child

¶ 6. Timothy was born in 1997 and he is in good health.

Continuity of care

¶ 7. Although Sam testified that Valerie took greater care of Timothy, the chancellor found that both parties contributed substantially to the care of their son before the separation. The chancellor also found it important that Sam had agreed to give temporary custody of Timothy to Valerie.

Parenting skills and willingness and capacity to provide primary child care

¶ 8. The chancellor determined that both parties have adequate parenting skills. From the record it is evident that both parties want to provide primary child care for Timothy. Furthermore, from Sam’s testimony, it is apparent that he only voiced concern over Valerie’s care of Timothy after she sought a divorce from him.

The employment of the parent and the responsibilities of that employment

¶ 9. Valerie works in Jackson as an assistant vice-president in investment services for Union Planters Bank. Valerie has a stable job with flexible hours. Sam is self-employed as an automotive recondi-tioner in Tupelo, and he testified that he works as little as three days a week. Sam has had less job stability, having nine different employers over the course of their six-year marriage, with eight of those during the first two-and-a-half years of the marriage.

Physical and mental health and age of the parents

¶ 10. The chancellor determined that both parties are in good mental health and that Valerie’s physical health is good. Sam admitted to contracting herpes in 1997 three years after his marriage with Valerie, but denied any sexual relations with others during the marriage. Valerie also presented evidence that Sam has a temper and has shown it in front of Timothy.

Emotional ties of the parent and child

¶ 11. The chancellor found that both Valerie and Sam love Timothy a great deal and have strong emotional ties with him.

Moral fitness of the parents

¶ 12. The chancellor found that both parents were morally fit for custody of Timothy, although Valerie and Sam both admitted to committing adultery after their separation. Sam tried to prove that Valerie exposed Timothy to her extra-marital relationship, but the chancellor found no credible proof to support the allegation. Sam, however, did admit to having Timothy around different girlfriends dining weekend visitations. Although both parties admitted adultery, the chancellor awarded the divorce to Sam because he charged adultery and Valerie did not.

The home, school and community record of the child

¶ 13. The chancellor found this factor not applicable due to the young age of the child.

The preference of the child at the age sufficient to express a preference

¶ 14. The chancellor also found this factor not applicable because four year old Timothy is not at the age sufficient to express a preference.

Stability of the home environment and employment of each parent

¶ 15. Valerie and Timothy live in a rented apartment in Jackson while Sam lives in a home in Tupelo owned by his stepfather. As previously stated, Valerie has job stability, while Sam’s employment record shows less job stability.

Other factors relevant to the parent-child relationship

,¶ 16. Sam has an elderly grandmother who lives in Tupelo, but his other family lives out of state. Valerie has no immediate family in Jackson and her extended family lives in Texas. Both Sam and Valerie are visited periodically by their families. The family members who testified on Sam’s behalf admitted to not having firsthand knowledge of many relevant facts concerning the custody issue, such as Valerie’s parental abilities. Furthermore, the chancellor found that a significant factor in his custody decision was Sam’s child from a previous relationship, an eight year old son named Gabriel. Sam testified that he had not seen Gabriel since his first birthday, paid no child support for him, and voluntarily relinquished his parental rights.

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

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

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


author: BRIDGES, J., IRVING, J.,

text:
    Thomas E. LUCAS, Appellant, v. Rex WILLIAMSON, Appellee.
    No. 2001-CA-01252-COA.
    Court of Appeals of Mississippi.
    Jan. 7, 2003.
    Rehearing Denied May 13, 2003.

      George Thomas Sullivan, Collins, attorney for appellant.
    Daniel Hurd Hudson, Purvis, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES, and THOMAS, JJ.
   BRIDGES, J.,

for the court.

Procedural History

¶ 1. On December 17, 1998, Mr. Rex Williamson petitioned the Lamar County Board of Supervisors for a private right-of-way across property belonging to Mr. Thomas E. Lucas, pursuant to Mississippi Code Annotated section 65-7-201 (Rev 2001). The order granting the request was signed by the Board of Supervisors on December 17, 1998, noting that the due compensation and exact location of the right-of-way would be determined at a later date. Damages in the amount of $560 were granted on March 23, 2000, with the same amount tendered on March 29, 2000.

¶ 2. Mr. Lucas filed a motion to set aside the Board’s order, causing the Board to have an evidentiary hearing on the matter. The Board deferred ruling on the matter until their July board meeting. On July 20, 2000, the Board entered its order denying Mr. Lucas’s motion and affirming damages in the amount of $560.

¶ 3. Mr. Lucas filed his notice of intent to appeal with the circuit clerk on February 16, 2001, and a bill of exceptions was accepted by the Board on February 20, 2001, with filing to the circuit clerk’s office on February 27, 2001. A motion for dismissal of the appeal was filed by Mr. Williamson in the circuit court based upon the appeal being not timely. The circuit court agreed and dismissed the appeal with prejudice for failure to have jurisdiction on July 9, 2001. This appeal followed.

Legal Analysis

¶ 4. Mr. Lucas attempted to assert three issues for our review. Only the first issue submitted is suitable for review, as the other two issues are moot: WHETHER THE TRIAL COURT ERRED IN DISMISSING APPEAL AS THE BILL OF EXCEPTIONS WAS TIMELY FILED. Unfortunately, Mr. Lucas failed to support his argument with persuasive case law. “It is well known that a failure to cite case law in support of one’s contentions acts as a procedural bar, preventing this Court from considering it.” Ortman v. Cain, 811 So.2d 457, 462(¶ 16) (Miss.Ct.App.2002) (citing Ratcliff v. State, 752 So.2d 435, 437(¶ 7) (Miss.Ct.App.1999)). Procedural bar notwithstanding, Mr. Lucas’s contention is baseless. We find that the bill of exceptions was not timely filed and affirm the dismissal of the appeal by the Lamar County Circuit Court.

¶ 5. As mentioned above in the procedural history, the final order of the Lamar County Board of Supervisors was entered on July 20, 2000. Mississippi Code Annotated Section 11-51-75 (Supp.2001) dictates that a bill of exceptions must be entered within ten days of the date of adjournment at which session the board made its decision. The latest time when the decision could have become final was, as the circuit court dictated in its order, on August 7, 2000, at which time the minutes of the July meeting were signed by the president of the board of supervisors, pursuant to Mississippi Code Annotated Section 19-3-27 (Rev.1995). Mr. Lucas did not file his bill of exception until February 20, 2001, well beyond the time frame dictated by statute. As such, the filing was not timely and the circuit court was correct in dismissing the appeal with prejudice for failure to have subject matter jurisdiction.

¶ 6. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

IRVING, J.,

dissenting.

¶ 7. The majority affirms the decision of the trial judge holding that Lucas’s appeal to the circuit court of a decision of the Board of Supervisors of Lamar County (the Board) was time barred. In reaching its decision, the majority relies upon minutes of the Board that were neither before the circuit court nor a part of the trial record when the trial court’s decision was rendered. The majority errs in this respect; therefore, I respectfully dissent.

¶ 8. It is a cardinal principle of appellate review that appellate courts decide eases based only upon the record before them, not upon assertions in the briefs. Cooper v. State Farm Fire & Casualty Co., 568 So.2d 687, 697 (Miss.1990). The original record sent to this Court does not contain any minutes of the Board, and this Court, noticing the absence of the minutes upon which the trial judge apparently relied, ordered that the record be supplemented. The supplemental record, which was filed with this Court, contains minutes of the Board for meetings held on August 7, 10, and 24, 2000. Conspicuously absent for whatever reason is a copy of the July minutes, specifically, the July 20, 2000 minutes. In any event, as to the minutes that were supplied, neither set mentions the private right-of-way matter which is the subject of this appeal, nor does any set contain any motion approving the July 2000 minutes of the Board. Moreover, the August minutes, as contained in the supplemental record, were not filed with the Lamar County Circuit Court until October 17, 2002. The trial judge’s order dismissing Lucas’s appeal was entered July 9, 2001, well over a year prior to the minutes being made a part of the trial court record in this case.

¶ 9. The majority totally ignores the effect of the absence of the minutes from the trial and appellate records and attempts to gloss over the lack of approval of the minutes for July 20, 2000, and August 7, 2000. Of interest is the following quote by the majority: “The latest time when the decision [to deny Lucas’s request for reconsideration of the decision granting the right-of-way] could have become final was, as the circuit court dictated in its order, on August 7, 2000, at which time the minutes of the July meeting were signed by the president of the board of supervisors, pursuant to Mississippi Code Annotated section 19-3-27 (Rev.1995).” Majority opinion at ¶ 5.

¶ 10. The record does not contain a scintilla of evidence that the July 20, 2000 minutes, which purportedly contains the final decision of the Board, were signed on August 7, 2000, by the president of the Board pursuant to Mississippi Code Annotated section 19-3-27 (Rev.1995). The stated code section provides in pertinent part that:

The minutes of each days proceedings shall either (a) be read and signed by the president or the vice president, if the president is absent or disabled so as to prevent his signing of the minutes, on or before the first Monday of the month following the day of adjournment of any term of the board of supervisors; or (b) be adopted and approved by the board of supervisors as the first order of business on the first day of the next monthly meeting of the board.

Miss.Code Ann. § 19-8-27 (Rev.1995).

¶ 11. Apparently, the majority reads Mississippi Code Annotated section 19-3-27, subsection (a) as permitting the president of a board of supervisors to sign the official minutes of the board outside of board meetings and without the minutes having been first read in an open meeting of the board. This construction of the statute is in direct conflict with the literal language of the statute and would permit a president, limited only by his standard of integrity, to sign minutes containing information which the board had not approved or ever heard of. Such a construction would also render meaningless the language in the statute that the minutes shall be “read,” as well as that portion of the statute which permits the vice president to sign “if the president is absent or disabled so as to prevent his signing of the minutes.” What is being referenced by the phrase, “if the president is absent”? The obvious answer is “the meeting of the board of supervisors where the minutes are to be read and signed.”

¶ 12. As previously observed, the August 7, 2000 minutes do not mention the July 20, 2000 minutes. Therefore, the signature of the president of the Board, which is affixed to the August 7, 2000 minutes, cannot be viewed as approving the July 20 minutes, even if a reading of the July 20 minutes in the August 7 meeting were not required.

¶ 13. For the reasons presented, I dissent. I would reverse and remand this case to the circuit court to determine whether the minutes of the July 20 meeting were ever properly approved in accordance with applicable law. If they were properly approved at some time other than August 7, 2000, then I would direct the trial judge to determine the timeliness of Lucas’s appeal in accordance with that date. If they have not been approved, I would direct that the appeal was premature, leaving Lucas with the option of refiling his appeal within ten days following the approval of the July 20, 2000 minutes.

KING, P.J., JOINS THIS SEPARATE OPINION.