author: WALLER, JUSTICE,

text:
    Stella G. CONNELL v. The STATE of Mississippi, Acting Through the MISSISSIPPI DEPARTMENT OF CORRECTIONS and the State Parole Board.
    No. 2002-CA-00135-SCT.
    Supreme Court of Mississippi.
    April 3, 2003.

      Jim Waide, Tupelo, Ron L. Woodruff, Oxford, Brent Hazzard, Tupelo, for Appellant.
    Lawrence Lee Little, Dion Jeffery Shan-ley, Grenada, for Appellee.
   WALLER, JUSTICE,

FOR THE COURT:

¶ 1. Stella G. Connell sued the State of Mississippi, acting through the Mississippi Department of Corrections and the State Parole Board, under the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002), for damages sustained when she was raped by Michael M. Adams, a parolee accepted into Mississippi for supervision from the Illinois Department of Corrections. The Lafayette County Circuit Court entered summary judgment in favor of the State. Connell appeals, arguing that her notice of claim was filed prior to the expiration of the MTCA’s one-year statute of limitations and that there can be no discretionary immunity under Miss.Code Ann. § 11-46-9(l)(d) for the State where it improperly accepted Adams for parole and its parole officers failed to properly supervise Adams.

FACTS AND PROCEDURAL HISTORY

¶ 2. Michael M. Adams’s sordid criminal past makes his release by Illinois perplexing and something with which Connell takes great issue. Adams was first accused on September 13, 1990, of stalking a University of Mississippi student for about one year from September of 1989. On August 21, 1990, Adams allegedly raped another University of Mississippi student. The Lafayette County Circuit Court docket indicated that Adams had been bound over to the grand jury; however, he fled Mississippi and was never tried. The case was subsequently retired to the files on May 13,1996.

¶ 3. Adams had fled to Illinois where he was arrested for theft on June 15, 1991, and aggravated assault on June 25, 1991. On October 26, 1992, he was subsequently sentenced to six years for attempted robbery and burglary. Also, on October 29, 1992, he was sentenced to fourteen years per count to run concurrently for one count of home invasion and two counts of attempted aggravated sexual assault.

¶ 4. The incident leading to the conviction for home invasion and attempted aggravated sexual assault occurred on October 21, 1991, when Adams forced his way into a woman’s apartment and attempted to sexually assault her. The woman struck Adams in the head with an ashtray causing him to bleed and thereafter flee the scene. Fingerprint evidence obtained from the scene linked Adams to the incident.

¶ 5. In reports submitted after each of Adams’s two convictions, two assistant state’s attorneys from Cook County, Illinois, recommended that Adams should be incarcerated as long as possible given his propensity for preying on young women. They also recommended that “[a]ny early release would be highly objectionable.”

¶ 6. Adams was, however, considered for parole in July of 1998. He indicated that he would reside with his grandmother in Maple Park, Illinois, but she refused to take him into her home because there were minor girls living with her.

¶ 7. On July 14, 1998, Adams filed for release to reside with his parents in Etta, Mississippi, and had secured a job waiting for him upon his return to Mississippi. Initially, the Mississippi Department of Corrections refused to accept Adams because his transfer request had been sent to the wrong county. Adams’s request was thereafter sent to the correct field office and was accepted by Field Officer Stephen Smith via a Reply to Compact Investigation Request on September 16,1998.

¶ 8. Both Mississippi and Illinois are signatories to the Uniform Act for Oul^of-State Parolee Supervision. See Miss.Code Ann. § 47-7-71 (Rev.2000). Known as the “Compact,” signatories thereto basically agree that the “receiving state” will assume supervisory responsibilities over parolees and probationers released from the “sending state.” It provides in pertinent part:

The contracting states solemnly agree:
(1) That it shall be competent for the duly constituted judicial and administrative authorities of a state party to this compact (herein called “sending state”), to permit any person convicted of an offense within such state and placed on probation or released on parole to reside in any other state party to this compact (herein called “receiving state”), while on probation or parole, if
(a) Such person is in fact a resident of or has family residing within the receiving state and can obtain employment there;
(b) Though not a resident of the receiving state and not having his family residing there, the receiving state consents to such person being sent there.
Before granting such permission, opportunity shall be granted to the receiving state to investigate the home and prospective employment of such person.
A resident of the receiving state, within the meaning of this section, is one who has been an actual inhabitant of such state continuously for more than one (1) year prior to his coming to the sending state and has not resided within the sending state more than six (6) continuous months immediately preceding the commission of the offense for which he has been convicted.
(2) That each receiving state will assume the duties of visitation of and supervision over probationers or parolees of any sending state and in the exercise of those duties will be governed by the same standards that prevail for its own probationers and parolees.

Miss.Code Ann. § 47-7-71 (Rev.2000).

¶ 9. Adams was released from the Illinois prison system on October 11, 1998, with instructions to report to MDOC within 72 hours. The reporting instructions specifically stated that any failure to comply would be considered a violation of his release agreement and a warrant could be issued for Adams’s arrest.

¶ 10. It was not until December 16, 1998, nearly two months after Adams had been released from Illinois custody that he reported to Field Officer Smith in Mississippi. Smith never attempted to revoke Adams’s parole or seek to have a warrant issued for his arrest. Instead, in reviewing Adams’s paperwork, Smith classed Adams as needing “intensive supervision” which consisted of at least one home visit, one office visit, and two “collateral” visits per month. Adams reported for his first office visit on January 20, 1999. Six days later on January 26, 1999, he raped Stella Connell at her Oxford home and was subsequently indicted, tried, and convicted of rape.

¶ 11. Connell filed a notice of claim with the Attorney General of Mississippi pursuant to the MTCA on January 25, 2000, one day shy of the one-year statute of limitations. She subsequently filed suit against the State of Mississippi, acting through the Mississippi Department of Corrections and the State Parole Board on May 1, 2000, within 95 days of her filing of her notice of claim. See Miss.Code Ann. § 11-46-11.

¶ 12. In her complaint, Connell alleged the willful and gross negligence of the State Parole Board and MDOC in receiving Adams for supervision from Illinois on the basis that they should have ascertained Adams’s numerous prior convictions, his previous indictment in Lafayette County, and the fact that he could very well sexually assault another woman in the future. She also alleged that the State negligently supervised Adams thereby permitting him to rape her.

¶ 13. The State answered, claiming, inter alia, immunity under the MTCA on the premise that the State was engaged in a discretionary function. See Miss.Code Ann. § 11 — 46—9(d). The State later amended its answer to include a statute of limitations defense.

¶ 14. The State moved for summary judgment and in support thereof argued that Connell’s claim was barred by the one-year statute of limitations because, according to the State, the “tortious, wrongful or otherwise actionable conduct” of Miss.Code Ann. § 11-46-11(3) occurred at the latest on December 16, 1998, the date MDOC accepted Adams for supervision, and not January 26, 1999, the date Connell was raped. The discretionary function argument was again presented.

¶ 15. The Lafayette County Circuit Court granted the State’s motion for summary judgment on December 26, 2001, without stating any reasons. Connell appeals and argues her claim should not have been dismissed as being time-barred under Miss.Code Ann. § 11^16-11 or on the basis that the State was immune under the discretionary function exception to liability under Miss.Code Ann. § 11 — 46—9(l)(d).

STANDARD OF REVIEW

¶ 16. We employ the de novo standard in reviewing a trial court’s grant of summary judgment. O’Neal Steel, Inc. v. Millette, 797 So.2d 869, 872 (Miss.2001). In conducting the de novo review, we look at all evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So.2d 845, 847 (Miss.2001) (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996)). This evidence must be viewed in the light most favorable to the party against whom the motion for summary judgment has been made. Leslie v. City of Biloxi, 758 So.2d 430, 431 (Miss.2000).

DISCUSSION

I. WHETHER THE STATE IS IMMUNE OR SUBJECT TO LIABILITY.

¶ 17. As a basis for establishing liability on the part of the state, Connell argues both negligent acceptance and supervision. This requires an analysis of whether a private right of action exists and, if so, whether Connell has stated a justiciable claim.

A. Whether the Uniform Act for Out-of-State Parolee Supervision Creates a Private Right of Action.

¶ 18. The general rule for the existence of a private right of action under a statute is that the party claiming the right of action must establish a legislative intent, express or implied, to impose liability for violations of that statute. See Blockbuster, Inc. v. White, 819 So.2d 43, 44 (Ala.2001); Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 923 (Colo.1997); Nichols v. Kan. Political Action Comm., 270 Kan. 37, 11 P.3d 1134, 1143 (2000); Charlton v. Town of Oxford, 774 A.2d 366, 372 (Me.2001); Walker v. Chouteau Lime Co., 849 P.2d 1085, 1086 (Okla.1993). We have also found no private right of action for violations of various statutes and regulations. See, e.g., Moore ex rel. Moore v. Mem’l Hosp. of Gulfport, 825 So.2d 658, 665-66 (Miss.2002) (finding violation of State Board of Pharmacy’s internal regulations did not create a separate cause of action); Allyn v. Wortman, 725 So.2d 94, 102 (Miss.1998) (finding Miss.Code Ann. § 75-71-501, which prohibits fraud or deceit in connection with the offer, sale or purchase of securities did not create private right of action).

¶ 19. For example, the above reasoning was applied in Hodgson v. Mississippi Department of Corrections, 963 F.Supp. 776 (E.D.Wis.1997), where the United States District Court for the Eastern District of Wisconsin addressed the issue of whether the Uniform Act for Out-of-State Parolee Supervision created a private right of action in favor of a plaintiff. Albert Hodg-son sued the Mississippi Department of Corrections, its commissioner, and its Compact administrator in Wisconsin federal court for the wrongful death of his daughter Monique at the hands of a Mississippi parolee who was allegedly improperly relocated to Wisconsin under the Compact. 963 F.Supp. at 781.

¶ 20. The court noted that the wrongful death claim arose on August 4, 1992, the day Monique was murdered. Id. at 788. On the issue of whether Hodgson actually had a private right of action under the Compact, the court held:

To determine whether a statute creates a private right of action in favor of a particular plaintiff, a court must analyze the statute itself and any relevant legislative history. The focal point is the legislative body’s intent in enacting the statute. Unless the legislative intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.
In this case, nothing points in favor of implying a private right of action for Hodgson. The Uniform Act [for Out-of-State Parolee Supervision] itself contains no statement of purpose or mention of the rights of the general public or potential victims of parolees or probationers who might relocate under the Act’s provisions. At the same time, the Plaintiff has failed to point to any record of legislative history which shows that the lawmakers intended to benefit persons such as Hodgson or his daughter.

Id. at 791 (citations omitted & emphasis added). We likewise find no implied private right of action. The Compact does not create a private right of action; therefore, Connell’s negligent acceptance claim must fail absent violation of a specific statutory or regulatory directive.

B. Whether the State Has Violated Statutes or Regulations For Which the State Could Be Held Liable.

¶ 21. Connell contends that her action was based upon violations of statutes and not the exercise of discretionary duties for which the State would be immune. She relies on our opinion in Stewart ex rel. Womack v. City of Jackson, 804 So.2d 1041 (Miss.2002), for the proposition that when one violates clear duties in a statute or regulation, the act is ministerial and not discretionary.

¶ 22. The MTCA provides for governmental immunity in certain enumerated instances. Miss.Code Ann. § 11-46-9(1) provides:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(d) Based upon the exercise or performance or the failure to exercise a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.

Whether governmental conduct is discretionary requires a two-prong analysis: “(1) whether the activity involved an element of choice or judgment; and if so, (2) whether the choice or judgment in supervision involves social, economic or political policy alternatives.” Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584, 588 (Miss.2001) (citing Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 260 (Miss.1999)). See also Pearl Pub. Sch. Dist. v. Groner, 784 So.2d 911, 914 (Miss.2001); Brewer v. Burdette, 768 So.2d 920, 922 (Miss.2000). Conversely, governmental conduct is ministerial if imposed by law, and its performance is not dependent on the employee’s judgment. Leflore County v. Givens, 754 So.2d 1223, 1226 (Miss.2000) (citing L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1141 (Miss.1999); Mohundro v. Alcorn County, 675 So.2d 848, 853 (Miss.1996)). Our inquiry thus turns on whether the State’s actions in accepting Adams for parole or in failing to supervise him while in Mississippi violates any specific duties required by law. Also, when a parolee is sent from a sending state to a receiving state, that parolee is subject to the rules and regulations of the receiving state governing supervision. Miss.Code Ann. § 47-7-71(2).

1. Whether the State Violated Statutory Provisions in Its Acceptance of Adams.

¶ 23. Connell asserts two statutory violations by the State in its acceptance of Adams: first, Adams did not meet the six-month residency requirement under the Compact and, second, the State improperly accepted Adams for supervision when he was ineligible for parole in Illinois.

¶ 24. Mississippi’s obligation to receive Adams was based upon a determination that Adams was eligible for parole in Illinois. See Miss.Code Ann. § 47-7-71(1). The decision to grant or deny parole is in the discretion of the Parole Board and later MDOC. See Moore v. Ruth, 556 So.2d 1059, 1061 (Miss.1990); Haynes v. State, 811 So.2d 283, 285 (Miss.Ct.App.2001).

¶ 25. Connell charges that Adams was ineligible to be received in Mississippi on parole because he had not been a resident of Mississippi for the six-month period immediately preceding the rape. We find such an analysis unnecessary. Under Miss.Code Ann. § 47-7-71(1), a probationer or parolee can be sent from the sending state to the receiving state if “(a) Such person is in fact a resident of or has his family residing within the receiving state and can obtain employment there .... ” (emphasis added). A “resident of the receiving state” is

one who has been an actual inhabitant of such state continuously for more than one (1) year prior to his coming to the sending state and has not resided within the sending state more than six (6) continuous months immediately preceding the commissions of the offense for which he has been convicted.

Miss.Code Ann. § 47-7-71(1). It matters not whether Adams is actually a “resident of the receiving state” which would be Mississippi because the use of the conjunction “or” in subsection (a) as quoted above allows a parolee to be sent to the receiving state if such person is a resident or he has family in the receiving state. Adams clearly fell under the latter classification, for his parents are residents of Etta and he indicated he had a job waiting for him.

¶ 26. Connell’s other alleged statutory violation is that Mississippi could not have accepted Adams for supervision because he was ineligible for parole in Illinois. She contends that when Illinois refused to parole Adams because his grandmother declined to take him into her home because minor girls resided with her, Adams was ergo ineligible for parole in Illinois. We disagree with Connell’s characterization of Adams’s grandmother’s refusal to take him in as conclusive proof that he was denied parole in Illinois. The document indicating this “denial” was an IDOC document listing Adams’s parole plans. Also included as possible hosVsponsors were Adams’s parents in Etta and his aunt in Chicago. Adams’s parents’ willingness to take him in apparently satisfied the Illinois authorities as he was paroled in Illinois and ordered to report for supervision in Mississippi under the Compact. Also, Smith stated that he verified Adams’s residence and employment in Mississippi prior to responding to Illinois’ request. The Parole or Mandatory Supervised Release Agreement entered into between Adams and the Illinois Prisoner Review Board further recites the fact that Adams was released on parole in Illinois. The State’s acceptance of Adams was proper and, indeed, was mandatory under the Compact.

2. Whether the State Violated Statutory Provisions in the Supervision of Adams.

¶ 27. Connell asserts that the State should have initiated actions to send Adams back to Illinois upon his failure to report timely and that the State’s failure to supervise Adams once he did report was causally related to the rape.

¶ 28. Connell contends that Mississippi should have initiated actions to send Adams back to Illinois because of his failure to report within 72 hours of his release from Illinois. The only Mississippi statutory or regulatory authorities concerning the handling of a parolee’s failure to contact a Field Officer are MDOC Standard Operating Procedure 37.01.01 which states, “If the request to supervise an out of state offender is accepted, however, the offender does not make contact with the accepting Field Officer within one hundred twenty (120) days of the initial acceptance date, the Interstate Compact Office shall be notified in writing.” and MDOC Standard Operating Procedure 37.02.01 which states, “The initial personal contact between the newly released parolee and the supervising Field Officer should take place as soon as possible, but no more than three work days after the parolee’s release from custody, unless otherwise agreed upon prior to release.” Smith accepted Adams via a Reply to Compact Investigation Request on September 16, 1998, and Adams reported for supervision on December 16, 1998. Adams made contact within the 120-day window but not within three days. While Smith could have initiated actions to revoke Adams’s parole and sent him back to Illinois for failing to report within 72 hours, there is nothing in the Compact or applicable MDOC regulations requiring him to do so. There being no statute or regulation the violation of which can be considered ministerial, the decision not to revoke Adams’s parole is necessarily an exercise of discretion.

¶ 29. Connell also asserts the failure to properly supervise Adams once he did report directly contributed to the eventual rape. Adams reported for supervision to Officer Smith on December 16, 1998, had one office visit with Officer Stewart on January 20, 1999, and raped Connell on January 26,1999. Connell argues that the State violated its own directions regarding supervision because it never conducted one home visit or two collateral visits in one month.

¶ 30. Our inquiry thus turns to whether the decision to place Adams in intensive supervision and the failure to follow that decision are exercises of discretion or positively imposed by law. Connell argues that applicable state regulations required the State to conduct at least one home visit of Adams per month.

¶ 31. While the supervision procedures appear to be ministerial in nature, the Field Officer’s responsibilities to monitor and supervise a parolee should be immune from suit in cases such as this one where the State had no indication of a specific threat on Adams’s part to harm Connell. Connell alleged in her complaint that MDOC should have known there was probable cause to believe that Adams would again engage in acts of sexual assault in the future. Such a proposition is not entirely without merit; however, every person released on probation or parole also committed a crime in the past and, given the arguably high rates of recidivism, may very well likely commit another crime while free.

¶ 32. A well-reasoned explanation of this position can be found in a separate opinion in Taggart v. State, 118 Wash.2d 195, 822 P.2d 243 (1992) (Guy, J., concurring in part and dissenting in part). In Taggart, a consolidation of two cases, the plaintiffs sued the State of Washington for injuries sustained after they were brutally assaulted by parolees. 822 P.2d at 244. They claimed that the parole officers assigned to the parolees who attacked them “failed substantially to perform their supervisory functions.” Id. at 252. The majority held that the parole board was immune but that the parole officers’ failures to require a parolee to submit to drug testing, contacting parolee’s friends and employers (“collateral” contact), and failure to report violations of parole were administrative and supervisory failings falling outside the absolute protection afforded employees of state agencies. Id. One justice, while concurring with the majority that the parole board was immune, dissented on the issue of liability of parole officers and made the following public policy argument:

The same public policy argument applies to parole officers. The parole board employs the parole officers to implement their administrative decisions. The board will feel a responsibility to those officers and may not wish to place them in jeopardy by paroling a person eligible for parole if the officer employed by the board is going to be legally liable for the parolee’s conduct. Thus, opportunities will be lost where parole might be warranted. Successful parole requires assisting a parolee in making his or her own decisions and thus allowing some freedom of action. If the parole officer has liability for the actions of a reoffending parolee, the supervision will not be sufficiently flexible to accomplish its rehabilitative goal.
Individuals on parole are generally not single offenders. They have been convicted of multiple felonies, and recidivism is high. To expect complete rehabilitation with no further offenses is unrealistic. To create liability on the parole officer is to place blame somewhere and thereby simplify a complicated social problem. The grant of “qualified” immunity by the majority is illusory and nothing more than a negligence standard wrapped like a gift box which contains sticks and ashes.
The majority opinion admits that generally one does not have liability for the criminal acts of a third party unless one “takes charge” over that person. The issue is the parole officer’s control over the parolee’s actions. It is a naive fiction to say parole officers have control over felons who are free on parole. A person who does not have the ability to control another’s conduct should not have liability imposed upon him or her for the tortious act of that other person.

Id. at 263-64 (citations omitted & emphasis in original). Other courts have likewise arrived at a similar conclusion by applying the theory that the state owed no duty to the plaintiff. See, e.g., Schmidt v. HTG, Inc., 265 Kan. 372, 961 P.2d 677, 687 (1998) (finding no duty owed when parolee raped and killed coworker); Hartford Fire Ins. Co. v. State Dep’t of Health & Human Resources, 413 So.2d 1360, 1361-62 (La.Ct.App.1982) (finding no duty owed to plaintiff when parolee fire damaged plaintiffs business); Rogers v. S.C. Dep’t of Parole & Cmty. Corrections, 320 S.C. 253, 464 S.E.2d 330, 332 (1995) (finding no duty to warn victim absent specific threats of harm against victim in case where parolee murdered victim); Small v. McKennan Hosp., 403 N.W.2d 410, 414 (S.D.1987) (finding no liability when parolee raped and murdered victim).

¶ 33. There is absolutely no indication in the record of Smith’s or Stewart’s knowledge of a specific intent by Adams to harm Connell. In fact, the circumstances of the case indicate otherwise. Adams met with Officer Stewart for an office visit on January 20 and raped Connell on January 26. We find it implausible to believe that Connell would not have been raped had Adams’s parole officer conducted the one home visit and two collateral visits. For Connell to suggest that the State should have known that Adams could strike again overlooks the fact that every parolee can and, in many cases, does strike again, since every parolee is by definition a convicted felon. Holding the State liable for the negligent supervision of parolees would likely force parole officers to become overly restrictive and overbearing in their supervision and become more apt to revoke paroles out of fear they could be held liable for the acts of third parties which they have no reason to believe would occur. Since there is no evidence of a gross, reckless or wanton failure in the exercise of its statutory duty, i.e., supervising parolees, the State maintains the benefit of a shield of immunity. See L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d at 1142. Also, there is no sufficient causal connection or element of foreseeability between the alleged violated statutory duty and the injury sustained. See Brumfield v. Lowe, 744 So.2d 383, 389 (Miss.Ct.App.1999) (finding no causal connection between defendant police officer’s alleged fault in arrest of plaintiff handed over by hospital personnel after treatment for gunshot wound and later recurring injuries from wound in suit for failing to provide medical treatment). Connell’s negligent supervision claim fails as well.

II. WHETHER CONNELL’S CAUSE OF ACTION FOR NEGLIGENT SUPERVISION ACCRUED ON OR BEFORE JANUARY 26, 1999.

¶ 34. This issue concerns the actual date of the “tortious, wrongful or otherwise actionable conduct” for statute of limitations purposes. Connell contends that the one-year period did not start running until January 26, 1999, the date she was raped. The State responds that the period started running on either September 16, 1998, the date Adams was initially accepted, or December 16, 1998, the date Adams reported for supervision.

¶ 35. The MTCA provides for a one-year statute of limitations:

All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after; provided however, that the filing of a notice of claim as required by subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety-five days from the date the chief executive officer of the state agency receives the notice of claim....

Miss.Code Ann. § 11-46-11(3) (emphasis added). Thus, our inquiry concerns whether the “tortious, wrongful or otherwise actionable conduct” took place on September 16,1998, or December 16,1998, as the State contends or January 26, 1999, as Connell contends.

¶ 36. Connell’s negligent supervision claim is based on the State’s alleged negligence in supervising Adams after he reported to Field Officer Smith. This claim is independent of the negligent acceptance claim which was based upon the provisions of the Compact. She could not have possibly filed suit on her negligent supervision claim within one year of MDOC’s acceptance of Adams or his actual reporting for supervision since she did not sustain damages as the result of any “tor-tious, wrongful or otherwise actionable conduct” until she was raped on January 26, 1999. We hold that the one-year window to file a notice of claim did not begin to run until January 26, 1999, the day Connell was raped. Connell’s notice of claim and complaint, insofar as the negligent supervision claim is concerned, were filed timely.

CONCLUSION

¶ 37. We sympathize with Connell for the great trauma that she suffered. However, in the absence of a statutory violation that can be causally linked to the rape or a specific threat on the part of a parolee to harm another, we will not impose liability. As such, the Lafayette County Circuit Court’s grant of summary judgment in favor of the State of Mississippi, acting through the Mississippi Department of Corrections and the State Parole Board, is affirmed.

¶ 38. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. COBB AND DIAZ, JJ., NOT PARTICIPATING.

      . A "collateral contact” or collateral visit includes "[a]ll contact not classified as personal to include contact with the person(s) with whom the offender resides, i.e. spouse, parents, relatives, landlord; and contact with any other person who has contact with the offender, i.e. employer, neighbor, minister, law enforcement personnel, teacher.” MDOC Standard Operating Procedure 37.02.01 at 1.

      . The Preamble to the agreement stated:
      This document constitutes an agreement governing persons who have been granted parole by the Illinois Prisoner Review Board or otherwise released under supervision, and defines the terms by which the undersigned is conditionally released from confinement. The rules of conduct follow. If such rules are violated, parole or mandatory supervised release may be revoked under the rules and regulations promulgated by the Prisoner Review Board.
      (emphasis added).

      . Adams had registered with the Lafayette County Sheriff’s Department as a convicted sex offender.

      . Mississippi had a total parole population of 1,378 adults in 1997. Bureau of Justice Statistics, United States Department of Justice, Sourcebook of Criminal Justice Statistics 538 (2000). Also in 1997, Mississippi had 118 sentenced prisoners admitted to state institutions for parole violations. Id. at 539.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Tyrone ALEXANDER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-00706-COA.
    Court of Appeals of Mississippi.
    Jan. 8, 2002.
    Rehearing Denied Dec. 10, 2002.
    Certiorari Denied April 3, 2003.

      R. David Ford, Ripley, attorney for appellant.
    Office of the Attorney General by: W. Glenn Watts, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

IRVING, J.,

for the court.

¶ 1. Tyrone Alexander is before this court on direct appeal from a jury verdict in the Tippah County Circuit Court finding him guilty of embezzlement. He submits several assignments of error which we quote verbatim below:

A. The evidence presented at trial was insufficient to establish the crime of embezzlement and the verdict of the jury was against the overwhelming weight of the evidence and the trial court committed reversible error in denying the Appellant’s motion for JNOV and for a new trial.
1. The State failed to establish that Tyrone Alexander was an “employee” of “James E. Dees” as charged in the indictment, argued by the State during trial, and instructed to the jury.
2. The State failed to establish any fiduciary-type relationship or other relationship and entrustment of property.
3. The State failed to establish that Tyrone Alexander had the requisite intent to embezzle.
B. The trial court committed reversible error in refusing to grant Appellant’s jury instruction number D-7.
C. The Appellant’s right to an initial appearance was violated and the trial court committed reversible error in denying his motion to quash the indictment.
D. The Appellant’s right to a speedy trial under the United States Constitution and under the Mississippi Constitution and the Appellant’s right to be tried within 270 days of his arraignment were violated and the trial court committed reversible error in denying his motion to dismiss.
1. Tyrone Alexander’s Rights to a speedy trial under the United States Constitution and under the Mississippi Constitution were violated and the trial court committed reversible error in denying his motion to dismiss based upon such violation.
2. Tyrone Alexander’s right to be tried within 270 days of his arraignment was violated and the trial court committed reversible error in denying his motion to dismiss based upon such violation.
E. The Appellant received ineffective assistance of counsel.

¶ 2. In his motion for rehearing, Alexander noted that we did not in our original opinion address one of his issues. We do so in this modified opinion but find no error in any of the arguments that he raises. Therefore, we affirm.

FACTS

¶ 3. On April 10, 1998, James Dees, Circuit Clerk of Tippah County, arrived at his office at the courthouse around 6:00 a.m. Alexander entered Dees’s office offering to wash Dees’s car for forty dollars. Dees agreed to allow Alexander to wash his car. Dees paid Alexander in advance with a forty-dollar check drawn from the expense account of the circuit clerk and instructed Alexander to return Dees’s car by 9:00 a.m. that same morning. Alexander testified that he picked up Tangy Prather and his intentions were to smoke crack cocaine, have sex with Prather, wash the car, and return the car to Dees. When the car was not returned at 9:30 a.m., Dees called Jeff Medlin with the Ripley Police Department and explained that his car was to be returned by 9:00 a.m. and that if the police spotted Alexander to tell him to return the car to Dees. In the meantime, Alexander had traveled to Benton County. That afternoon, Alexander was apprehended by the Benton County Sheriffs Department. Prather was not with him at the time of his arrest.

ANALYSIS AND RESOLUTION OF THE ISSUES

1. Weight and Sufficiency of the Evidence

¶ 4. Alexander asserts that the State did not prove beyond a reasonable doubt that he committed the act of embezzlement. Alexander’s primary argument is that the State never proved that he was an employee of Dees. The indictment charged that:

Tyrone Alexander ... did unlawfully, willfully and feloniously embezzle and fraudulently secrete, conceal and convert to his/her own use a 1990 Oldsmobile Cutlass Supreme ... which had come into his/her possession and had been entrusted to his/her care and keeping by virtue of his/her position as an employee with the said James E. Dees, and did afterwards, then and there, without the consent of the said James E. Dees, unlawfully, willfully, fraudulently convert the same to feloniously embezzle the same and fraudulently convert the same to his/her own use....

(emphasis added). Alexander was indicted under section 97-23-19 of the Mississippi Code of 1972 as annotated and amended. This section provides:

If any director, agent, clerk, servant, or officer of any incorporated company, or if any trustee or factor, carrier or bail-ee, or any clerk, agent or servant of any private person, shall embezzle or fraudulently secrete, conceal, or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods, rights in action, money, or other valuable security, effects, or property of any kind or description which shall have come or been intrusted to his care or possession by virtue of his office, place, or employment, either in mass or otherwise, he shall be guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the penitentiary not more than ten years, or fined not more than one thousand dollars and imprisoned in the county jail not more than one year, or either.

Miss.Code Ann. § 97-28-19 (Rev.2000).

¶ 5. When evaluating the denial of a motion for JNOV or in the alternative for a new trial, the reviewing court must consider the evidence in a light most favorable to the prosecution. Gavin v. State, 473 So.2d 952, 956 (Miss.1985). The contentions made by the State should be taken as true. Id. Additionally, the State is entitled to all favorable inferences that can be reasonably taken from the evidence introduced. Id. If the evidence is of a nature that fair minded reasonable men could not have found the defendant guilty beyond a reasonable doubt, then this Court must reverse. Id.

¶ 6. Alexander says the term “employee” is not a term included in the embezzlement statute. We agree that the word “employee” is not included in the statute. However, we do not find this fact dispositive of the issue before us. Fairchild v. State, 258 So.2d 254, 256 (Miss.1972), sets forth the test to be applied:

[T]he term “agent” as employed in such statutes imports a principal and implies employment, service, and delegated authority to do something in the name and stead of the principal an employment by virtue of which the money or property embezzled came into the agent’s possession. The question whether an agency has been created is ordinarily a question of fact which may be established the same as any other fact, either by direct or by circumstantial evidence; and whether an agency has in fact been created is to be determined by the relations of the parties as they exist under their agreements or acts, with the question being ultimately one of intention. The question is to be determined by the fact that one represents and is acting for another.

(citations omitted).

¶ 7. Here, the evidence establishes that an agency relationship was created when Alexander was entrusted with authority by Dees to wash his car and return it by 9:00 a.m. Employment was established when Alexander was paid forty dollars to complete the job. Alexander admitted that he converted the car to his own use. Under these facts, it is clear that Alexander was acting as an agent and, in a general sense, an employee of Dees. Furthermore, whether Alexander was an employee was a fact question to be determined by the jury. We hold that the evidence was sufficient for a jury to find that Alexander was an agent/employee for the purposes of Mississippi Code Annotated Section 97-23-19 (Rev.2000).

¶ 8. Alexander also argues that there was a lack of evidence to prove any fiduciary relationship between him and Dees and that he did not possess the requisite intent to permanently deprive Dees of his car. It was up to the jury to determine Alexander’s intent, and the jury resolved this issue adverse to Alexander. In order to find Alexander guilty, the jury had to find that he was a clerk or agent of Dees and that the car came into his possession by virtue of his employment. It cannot be seriously argued that he was not employed by Dees and that it was not because of that one time employment relationship that the car came into his possession.

2. Jury Instmction D-7

¶ 9. The proposed instruction reads as follows: “The court instructs the jury that an independent contractor is one who agreed to perform a service for principal, but whose physical conduct in the performance of service is not subject to the right of control by the principal.” Alexander maintains that the instruction would have properly instructed the jury on the concept of independent contractor and accurately presented his theory of the case. The general rule observed when reviewing a court’s denial of a jury instruction is that reversal is not required when the jury has been properly, fully, and fairly instructed by other instructions. Catchings v. State, 684 So.2d 591, 599-600 (Miss.1996); Collins v. State, 594 So.2d 29, 35 (Miss.1992). Section 97-23-19 provides that one embezzles by virtue of his employment. We fail to discern Alexander’s logic because even if he technically was an independent contractor and not an employee within the strict technical sense of an employee, he still was employed by Dees. Alexander was employed to wash Dees’s car, whether as an independent contractor or employee.

3. Initial Appearance and Denial of Motion to Quash Indictment

¶ 10. Alexander filed a motion to quash the indictment alleging that he was denied his right to an initial appearance. As a consequence, he was held in Tippah County jail from April 10, 1998, until July 7, 1991, or 91 days without the benefit of an initial appearance. Alexander also alleged that he was neither completely informed of the charges against him nor offered bond. At all times, according to Alexander, assistance of counsel was requested; however, access to an attorney was not granted. In Alexander’s brief, he asserts that he requested a preliminary hearing on July 10, 1998, but never received one because his case was continued when a municipal judge recused himself. Thereafter, his case was presented to the grand jury.

¶ 11. The court denied Alexander’s written motion to quash the indictment and also denied Alexander’s ore tenus motion to quash indictment due to clerical errors in the habitual or enhanced portion of the indictment. The court reasoned that failure to timely provide an initial appearance was not so prejudicial as to warrant quashing the indictment.

¶ 12. Alexander had a right to an initial appearance within forty-eight hours after his arrest. The general rule is set forth in Rule 6.03 of Mississippi Uniform Circuit and County Court Rules. This rule states: “Every person in custody shall be taken, without unnecessary delay and within 48 hours of arrest, before a judicial officer or other person authorized by statute for an initial appearance.” URCCC 6.03. There is no dispute; the State failed to provide Alexander with an initial appearance as required by the rule. However, dismissal of the indictment is not the remedy for the violation. An illegal detention that consequently denies a defendant the right to a preliminary hearing alone is not sufficient to justify reversal. Esparaza v. State, 595 So.2d 418, 423 (Miss.1992). The defendant must show that failure to do so prejudiced the merits of his case. Id.

¶ 13. Indeed, Alexander was prejudiced by the delay in receiving an initial appearance, failure to fix a bond, and being denied access to an attorney. However, Alexander makes no assertion that the merits of his case suffered any prejudice. We find no reversible error on this issue.

4. Denial of Motion to Dismiss for Lack of a Speedy Trial

¶ 14. Alexander argues that the court erred in denying his motion to dismiss for lack of a speedy trial. He asserts that his state and federal constitutional rights, as well as his state statutory right to be tried within 270 days of his arraignment, were violated. Alexander argues that by the time he received his trial on April 4, 2000, 725 days had passed since his arrest, and 555 days had passed since his arraignment. Alexander maintains that he requested no continuances, and no evidence will show that he was ever unable or unwilling to stand trial.

a. Constitutional right

¶ 15. In the case sub judice, the trial court did not explain its analysis in terms of the Barker factors in its denial of Alexander’s motion to dismiss; however, this Court can act de novo in performing the proper analysis. DeLoach v. State, 722 So.2d 512 (¶ 5) (Miss.1998). The right to a speedy trial attaches after an initial appearance. Birkley v. State, 750 So.2d 1245, 1249 (Miss.1999); Smith v. State, 550 So.2d 406, 408 (Miss.1989). The Supreme Court has set forth a four-prong test in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to be utilized when reviewing possible violations of a defendant’s right to a speedy trial. “The factors to be considered are: (1) length of delay; (2) reason for the delay; (3) whether the defendant has asserted his right to a speedy trial; and (4) whether defendant was prejudiced by the delay.” Birkley, 750 So.2d at 1249; Barker, 407 U.S. at 530, 92 S.Ct. 2182. The Barker factors require a weighing and balancing procedure which considers the facts in conjunction with the totality of the circumstances. Birkley, 750 So.2d at 1249.

(a) Length of delay

¶ 16. In calculating the length of delay for constitutional purposes, we begin with the date of arrest. Alexander was arrested April 10, 1998, indicted September 22, arraigned September 28, 1998, and tried April 4, 2000. Nearly two years or a total of 725 days passed before Alexander received the benefit of a trial. Any delay beyond eight months is presumptively prejudicial. Id. at 1249; Simmons v. State, 678 So.2d 683, 686 (Miss.1996). Although Alexander did not request any continuances, a number of other factors contributed to the delay, but due to the length of delay, this factor weighs in favor of Alexander.

(b) Reason for Delay

¶ 17. After a finding that the delay is presumptively prejudicial, we look to the reasons for the delay, and the burden shifts to the State to provide legitimate evidence to justify the delay. Birkley, 750 So.2d at 1250; State v. Ferguson, 576 So.2d 1252, 1254 (Miss.1991). A defendant cannot prevail on speedy trial grounds based on presumptive prejudice alone. Birkley, 750 So.2d at 1250; Hurns v. State, 616 So.2d 313, 317 (Miss.1993). Generally, “[w]here the defendant has not caused the delay, and where the prosecution has declined to show good cause for delay, we must weigh this factor against the prosecution.” DeLoach, 722 So.2d at 517. However, “if the defendant is the cause of delay, he cannot complain thereafter.” Id. at 517. When the delay is attributed to actions by the defendant, the speedy trial clock is tolled. Id.

¶ 18. On October 16, 1998, Alexander filed a motion for disqualification and/or recusal of both of the circuit judges for Tippah County. An order of recusal was filed on November 16, 1998, but a replacement judge was not appointed until January 14, 1999. When the judge was appointed, his docket was set for the year; this delayed the trial until the following year, 2000. On November 13, 1998, Alexander filed a motion to quash the indictment. When this motion was filed, no judge was available to hear it since both had recused themselves. This motion was not heard until March 20, 2000. Additionally, on February 18, 2000, Alexander filed a motion to change venue. The circuit court entered an order on March 20, 2000, changing venue to Lee County and setting a trial date for April 4, 2000. Also, the record reveals, without elaboration, that Alexander was arrested on three other occasions on unrelated charges while awaiting trial on the charges lodged against him in this case. The actions taken by Alexander and delays due to docket congestion weigh against both Alexander and the State.

(c) Assertion of Right

¶ 19. Alexander filed a motion to dismiss for lack of a speedy trial on March 30, 2000. A motion to dismiss does not constitute a demand for a speedy trial. Perry v. State, 637 So.2d 871, 875 (Miss.1994). The failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. Birkley, 750 So.2d at 1251. Moreover, Alexander’s motion to dismiss was filed only five days prior to trial. This factor is weighed against Alexander.

(d) Prejudice

¶ 20. Alexander asserts that he was prejudiced by the delay because he was prevented from adequately assisting his counsel in the preparation of his defense; he says the length of the delay prejudiced his defense because of the effect it had on the memories of the witnesses. According to Alexander, one witness he planned to call was unavailable.

¶ 21. For this prong, the defendant must show two things: (1) actual prejudice, and (2) interference with defendant’s liberty. Perry, 637 So.2d at 876. In addition, three interests should be assessed: (1) the prevention of oppressive pretrial incarceration, (2) minimizing the anxiety of the defendant, and (3) limiting possible impairment to the defense of the accused. Id.; Barker, 407 U.S. at 532, 92 S.Ct. 2182.

¶ 22. The defendant must show some prejudice in order to weigh this factor in his favor; incarceration alone is insufficient to warrant reversal. Birkley, 750 So.2d at 1252. The State argues that Alexander was not oppressed by pretrial incarceration due to the embezzlement charge, but was subjected to lengthy incarceration due to his arrest and conviction on a subsequent armed robbery charge and his being arrested on three other felony charges during the interim between his arrest and trial.

¶ 23. When a witness with relevant information becomes unavailable due to delay, prejudice is obvious. Id. at 1252; Barker at 532, 92 S.Ct. 2182. Prejudice also is present when witnesses are unable to clearly and accurately remember the facts surrounding the case. Id. Alexander claims that Robert Fortner, Deputy Scott Poff, and Tangy Prather had some difficulty recalling facts. However, the State argues and we agree, that what they could not remember was not pertinent in terms of the outcome of the case. For example, Fortner identified Alexander as the person who tried to sell him Dees’s cell phone. However, Fortner could not recall the exact description of the car Alexander was driving. It is difficult to see how the description of the car would help Alexander’s defense. First, having Dees’s cell phone helped to connect Alexander to Dees’s vehicle since Dees had left the phone in the vehicle. Tangy Prather could not recall the exact time in the evening when she was with Alexander. Again, this information would not help Alexander’s defense since he was supposed to have the car back by 9:00 a.m. Deputy Poff was the officer who arrested Alexander driving Dees’s car in Benton County. He could not recall the color of the vehicle. However, there is no doubt about the car belonging to Dees. Alexander also argues that Thomas “Buddy” Cox, a potential witness for Alexander’s defense, was unavailable to testify. However, Alexander does not explain how the absence of Cox’s testimony prejudiced his case. Because there is no showing of actual prejudice to Alexander’s defense, this factor weighs against him. In considering the Barker factors and the totality of the circumstances, we find that this issue lacks merit.

b. Statutory right to speedy trial

¶24. Alexander asserts that his statutory right to a speedy trial was also violated. The statute requires that “[u]n-less good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” Miss.Code Ann. § 99-17-1 (Rev.2000). Approximately 555 days passed between Alexander’s waiver of arraignment and the trial.

¶ 25. We have already discussed the reasons for the delay. Since Alexander was charged with having committed his crime against the circuit clerk for the county, he sought the recusal of all the circuit judges from that county. At the November 1998 hearing on the motion, the initially designated trial judge noted the probability of a delayed trial:

Court: Now, do you understand that you have asked the Court to recuse itself on this case, and do you understand that by doing that, that you are going to, of necessity, going to necessitate your client being a considerable length of time getting a trial over what it would be? Now, you understand that and your client understands that?
Defense Counsel: Yes, your Honor, ... I think the delay in his trial is worth it in the long run. He is indicted as an habitual offender, and I think the trade off is acceptable to him, your Honor.
Court: Well, he is present, and he has not indicated anything any differently, and so, I assume that it is, too.

¶ 26. The defense acknowledged the inevitability of delay and accepted it. The effect of the recusal was that no judge in this county any longer had authority to act on the case. When the case was not reached at succeeding terms of court, no judge in that county was likely entitled even to enter an order for continuance. Though a continuance motion could no doubt have been presented each Tippah County term to the assigned judge in Lee County, we find no meaningful effect on Alexander when that did not occur.

¶ 27. The Supreme Court has held that at least in some circumstances, a criminal defendant may waive the statutory right by failing to make any demands for a speedy trial within the 270 day time period. Walton v. State, 678 So.2d 645, 650 (Miss.1996). There the Court found that a defendant had “waived his right to complain about not being tried within 270 days, because he neither requested nor asserted his right to a speedy trial or objected to a delay” and further because no prejudice from the delay had been shown. Id.

¶28. Not only did Alexander fail to assert his statutory right, he disclaimed it at the hearing on the recusal motion. Generally, questions of waiver of the right to speedy trial are reserved for constitutional analysis. Berry v. State, 728 So.2d 568, 570 (Miss.1999). However, in light of Walton, we have found statutory waiver exists in some situations. E.g., Little v. State, 744 So.2d 339, 344-45 (Miss.Ct.App.1999); Byrd v. State, 741 So.2d 1028, 1032 (Miss.Ct.App.1999); Biggs v. State, 741 So.2d 318, 327 (Miss.Ct.App.1999).

¶ 29. We are not saying that Alexander canceled his right to insist on a speedy trial. We are saying that under Walton, at least when a defendant files a recusal motion that all participants in the process accept will delay the trial, that an affirmative duty arises to assert his statutory right to a speedy trial if the defendant is going later to allege a violation of the statute. Having a new judge appointed from a different county, and then making time in that judge’s schedule for a trial, necessitates delay. The statute requires continuances duly entered. However, the assigned judge’s absence from the county makes the formality of presentations of continuance motions more arduous.

¶ 30. The defendant in pursuing his recusal motion explicitly accepted that delay would result. After receiving what he wanted by recusal, he is not entitled on these facts to the benefit of the resulting technical problems under the speedy trial statute. We find good cause for the delay. Under the circumstances of this case, we also find the absence of orders of continuance to be excused.

¶ 31. The delay may extend too long, a problem that on these facts is more suitable for treatment as a constitutional speedy trial question. We examined that issue above and found no error.

5. Ineffective Assistance of Counsel

¶ 32. Alexander argues that he will have received ineffective assistance of counsel if this Court determines that he waived his constitutional right to a speedy trial by failing to present the matter to the trial court or to request or obtain a specific ruling, or if it is determined that he has failed to adequately preserve his issues in his motion for JNOV or a new trial.

¶ 33. The test for ineffective assistance of counsel requires a petitioner to show (1) deficiency of counsel’s performance (2) and prejudice flowing from that deficiency to the defendant’s defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must overcome the hurdle that an attorney’s conduct is presumed “to fall within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Then, this Court must view the conduct of the attorney in light of the totality of the circumstances to discover if errors made by the attorney were “outside the range of professionally competent assistance.” Id. at 690, 104 S.Ct. 2052. Additionally, even if an attorney makes mistakes which are professionally unreasonable, a setting aside of the judgment is not warranted. Id. at 691, 104 S.Ct. 2052. In the case at bar, a review of the record reveals that Alexander has neither shown that his attorney was deficient, nor demonstrated that his defense was prejudiced, assuming some deficiencies were shown. Therefore, this assignment of error lacks merit.

¶ 84. THE JUDGMENT OF THE CIRCUIT COURT OF TIPPAH COUNTY OF CONVICTION OF EMBEZZLEMENT AS AN HABITUAL OFFENDER AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TIPPAH COUNTY.

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

      . This opinion is substituted for that originally issued. The rehearing motion is denied.

      . Alexander was convicted of an armed robbery charge while awaiting trial in this case; however, the conviction was later dismissed due to perjured testimony.


author: BRANTLEY, J., IRVING, J.,

text:
    Louis Rene CARITE, Jr., Appellant, v. Barbara CARITE, Appellee.
    No. 2001-CA-00691-COA.
    Court of Appeals of Mississippi.
    July 30, 2002.
    Rehearing Denied Nov. 26, 2002.
    Certiorari Denied April 3, 2003.

      Roy J. Perilloux, Jackson, James Eldred Renfroe, Daniel Brian Allen, attorneys for appellant.
    Monique Bordelon Brown, Jackson, attorney for appellee.
    Before McMILLIN, C.J., LEE, and BRANTLEY, JJ.
   BRANTLEY, J.,

for the Court.

¶ 1. On January 17, 2001, the Hinds County Chancery Court entered a judgment which found Louis Carite in contempt of court for failing to comply with the child support and division of property agreement that had been incorporated into a divorce judgment entered on October 5, 1990. In his appeal to this Court, Louis asserts that the chancery court erred on three main issues: 1) finding him in contempt and awarding one-third of his retirement benefits to Barbara Carite, 2) finding him in contempt and awarding back child support to Barbara, and 3) the judgment of the chancery court was inconsistent with the chancery court’s order in this action, in that the judgment awarded a portion of his retirement, child support arrearage and attorney’s fees to Barbara, while the opinion only addressed the issue of child support arrearage. Finding no error, we affirm.

FACTS

¶ 2. Louis and Barbara Carite were married on December 14, 1968. They had one child, Jimmy Carite, who was born on January 17, 1974. They divorced on grounds of irreconcilable differences on October 5,1990. A separation, child custody and property settlement agreement was incorporated into the final judgment of divorce. In this agreement, Louis agreed to pay $300 per month in child support and to divide his “pension” and “profit sharing” so as to provide Barbara with one-third of the value.

¶ 3. On October 4, 2000, Barbara filed a motion for citation of contempt which led to the present appeal. Following a hearing on the merits on September 28, 2000, the chancery court held that Barbara was entitled to receive one-third, or $411.80 per month, from Louis’s future monthly pension benefits from Lucent Technologies (Lucent), as well as an award of $5,161.06 which was based upon pension benefits Louis had already received. The chancery court further held that Barbara was entitled to an award of one-third of the stock which Louis had received as profit sharing. The chancery court’s judgment did not specifically state a dollar figure for this award, but a business affidavit introduced into evidence shows that this stock was comprised of approximately 135 shares of stock in Lucent. The chancery court further held that Barbara was entitled to an award of $20,236.12 in back child support. Lastly, the chancery court held that while both parties should bear their own attorney’s fees, Barbara was entitled to $500 in attorney’s fees incurred in defending against Louis’s motion for summary judgment, which had previously been denied, and that Louis should pay court costs of $348.94.

I. RETIREMENT BENEFITS

¶ 4. Louis asserts five separate arguments to support his assertion that the chancery court erred in finding him in contempt and in awarding Barbara one-third of his pension and profit-sharing benefits. Louis’s main defense against Barbara’s claim that he was in contempt centered around his assertion that she should have taken steps to assert her right to his pension and profit-sharing at the time the divorce was granted, rather than waiting ten years.

¶ 5. Louis contends that the seven year statute of limitations of Miss. Code Ann. § 15-11^43 (Rev.1995) required that Barbara bring her claim for the retirement benefits within seven years of the original judgment of divorce. The statute of limitations on a right to compel a monetary judgment in a domestic action begins to run on the date on which the payment is due and payable. See, e.g., White v. Abel, 802 So.2d 98, 102(¶ 12) (Miss.Ct.App.2001). Barbara contends that the statute of limitation only began to run on the date of Louis’s retirement. Louis retired in December of 1999. Barbara testified as to a letter she had written to Lucent in 1995, and based on a conversation with someone at Lucent in response to her letter, it was her understanding that only Louis could request Lucent to apportion the pension benefits in accordance with the property settlement agreement. The property settlement agreement provided that “[h]us-band agrees to divide any Life Insurance Policies, Facility Closing or Profit Sharing, Pension, and/or any other benefits not listed herein 1/3 to Wife and 2/3 to Husband.” Barbara also introduced into evidence a business affidavit from the records custodian of Lucent’s Pension Program which stated, “said pension benefits were available to Louis R. Carite, Jr., according to the provisions of the Lucent Technologies Inc. Pension Plan contingent upon the date of his retirement at Lucent Technologies, Inc.” Conversely, Louis testified that because his benefits were vested, he could at any time have withdrawn benefits at a penalty. He contends it was Barbara’s duty to petition the chancery court for a Qualified Domestic Relations Order (QDRO) in accordance with the Employee Retirement Income Security Act (ERISA), and her failure to do so was a failure to enforce the original judgment for divorce.

¶ 6. The chancery court found that the original divorce judgment and property settlement agreement “required Mr. Car-ite to take the initiative in giving her her interest.” The chancery court also found that Barbara “made every reasonable effort to try and obtain that money from the pension and was told that she could not have it at that time, so I felt that with them denying her that relief that she had done all that she could.” Thus, the chancery court found that Barbara’s claim that Louis was in contempt was not time barred. Although Miss.Code Ann. § 15-.11-43 (Rev.1995) contains no specific tolling provision, our supreme court has found that the seven year time period is subject to tolling under the equitable doctrine of laches, where a former spouse has requested ordered support and the spouse owing the support fails to comply, and where the delay has not disadvantaged the defendant. Rubisoff v. Rubisoff, 242 Miss. 225, 234, 133 So.2d 534, 536-37 (1961).

¶ 7. In this case, the chancery court found that the settlement agreement required Louis to initiate the apportioning of pension benefits, and stated that Barbara had acted on good faith information supplied by Lucent in not taking action within the seven year time period. A chancery court’s findings in actions dealing with property division are subject to discretion and will not normally be disturbed unless they are in manifest error and will be upheld if supported by substantial credible evidence. Weston v. Mounts, 789 So.2d 822, 826(¶15) (Miss.Ct.App.2001). However, the application of a statute of limitation is subject to de novo review. Sarris v. Smith, 782 So.2d 721, 723(¶ 6) (Miss.2001). Mindful of the more stringent standard of review applicable to applications of the statute of limitation, we also note that the chancellor viewed the witnesses and made determinations of credibility and weighed evidence in a matter of equity. In this case, we find the chancery court did not err in finding that this action for contempt was not time barred by Miss. Code Ann. § 15-11-43 (Rev.1995).

¶ 8. Additionally, Louis contends because Barbara failed to initiate a QDRO to Lucent ordering it to distribute the pension benefits in accordance with the property settlement at the time of the original divorce decree, any attempt to initiate a QDRO as part of her action for contempt was actually an attempt to modify the divorce settlement. Contrary to that assertion, our supreme court has expressly found it proper to issue a QDRO when it was determined four years after a divorce that the pension benefits had been hidden, and the QDRO was necessary to effectuate the intent of a property settlement agreement. Holloman v. Holloman, 691 So.2d 897, 901 (Miss.1996). The actual basis for this argument is that Louis contends that the terms of the original judgment for divorce and division of property agreement were insufficient to satisfy the requirements of a QDRO as set forth in Parker v. Parker, 641 So.2d 1133, 1136 (Miss.1994). Louis further contends that because the seven year statute of limitations upon enforcing the original judgment had run, Barbara had insufficiently pled her action when she requested relief based upon a motion for contempt rather than a motion to modify the original judgment. While the original judgment for divorce may well have been insufficient to establish a QDRO, this argument is irrelevant to the disposition of this appeal because the chancery court did not err in declining to find the motion for contempt time barred. That is, because the chancery court had the authority to order a proper QDRO issue to enforce its original judgment, there is no merit to Louis’s assertion going to the QDRO.

¶ 9. Moreover, Louis asserts that the chancery court erred in excluding testimony of an expert witness he sought to call to testify “as to when Mr. Carite became vested and the proper procedure a spouse must follow to become entitled to a portion of an ERISA (Employee Retirement Income Security Act) pension plan.” Louis characterizes this as a denial of his due process rights under the Fourteenth Amendment to the United States Constitution. However, the issue really turns upon whether the expert testimony was relevant. To be admissible, expert testimony must be relevant in that it tends to be probative to a factual issue in question. Winters v. State, 773 So.2d 973, 975(¶ 10) (Miss.Ct.App.2000). Construing this provision, the chancery court held the original divorce judgment and property settlement agreement “required Mr. Carite to take the initiative in giving her her interest.” Therefore, whatever testimony the expert would give as to what Barbara should, or could, have done was irrelevant. There is no constitutional right to present irrelevant evidence. See, e.g., Capps v. Collins, 900 F.2d 58, 60 (5th Cir.1990). Any real merit going to Louis’s contention that he should have been allowed to present the expert testimony goes to whether Barbara failed to initiate a QDRO, and the effect of that failure. As the chancery court did not err in declining to find the claim time barred or in ordering a QDRO to issue in connection with the present underlying motion for contempt, the testimony was irrelevant and the chancery court did not err in refusing to allow it to be admitted.

¶ 10. Additionally, Louis contends that the division of property agreement was too vague to provide Barbara a right to Louis’s pension and stocks obtained through profit sharing. The property agreement specifically stated that Barbara would receive one-third of Louis’s “pension” and “profit sharing.” The parties’ intent expressed in a property settlement agreement is controlling as to its enforcement. Holloman, 691 So.2d at 899. Further, a chancery court’s finding in a property division action is subject to an abuse of discretion standard. Weston, 789 So.2d at 826(¶ 15). In this case, the chancery court did not make any finding as to whether the division of property agreement was, or was not, ambiguous. However, a general rule of appellate review is that findings will be presumed consistent with a judgment. Par Industries, Inc. v. Target Container Co., 708 So.2d 44, 47(¶ 4) (Miss.1998). Consequently, because the chancery court enforced the property settlement agreement, it is presumed that the chancery court did not find that the agreement was so vague as to prevent Louis and Barbara’s intent from being ascertained. Given the express language of the property agreement, there is no merit to the assertion that the property agreement was too vague to be enforced, and the chancery court did not err in enforcing it.

¶ 11. Lastly, Louis contends that the chancery court erred in not admitting into evidence bankruptcy court records which he asserts show prior inconsistent statements by Barbara. He contends that Barbara stated in these records that she had no pension benefits. The chancery court found these records to be irrelevant for two reasons. First, the chancery court stated the issue before the court was the legal effect of the original divorce decree, which was a matter of law. This was a matter of judicial interpretation, and Barbara’s opinion as to a matter of law was irrelevant. Secondly, the chancery court found Barbara’s statement before the bankruptcy court was not inconsistent with her testimony. While Barbara made the statement to the bankruptcy court in September of 1999 that she had no pension benefits, she also testified in the chancery court that she had been told by Lucent that she could not receive benefits until Louis retired, and he did not retire until December of 1999. The chancery court correctly found that because Barbara believed she had no means to access Louis’s retirement until December of 1999, her statement that she had no pension benefits in September of 1999 did not contradict her testimony. A chancery court’s rulings as to the relevancy of evidence are subject to a discretionary review. Mississippi Transp. Comm’n v. Fires, 693 So.2d 917, 920 (Miss.1997). Under these facts, there is no merit to the assertion that the chancery court erred in finding the bankruptcy records irrelevant, and the chancery court did not err in refusing to admit them.

II. CHILD SUPPORT

¶ 12. Louis contends that the chancery court erred in awarding unpaid child support. Louis’s primary contention concerning this issue is that the chancery court erred in not holding that his son, Jimmy, became emancipated when he was eighteen years old and began working full-time. He asserted that Jimmy was emancipated on or before January 20, 1992, and because Barbara’s motion for contempt was not brought until June 7, 2000, the claim for unpaid child support was barred by the seven year statute of limitation of Miss.Code Ann. § 15-1^43 (Rev.1995).

¶ 13. Factual findings by a chancery court will not be disturbed if supported by substantial credible evidence. Tanner v. Roland, 598 So.2d 783, 785-86 (Miss.1992). Mississippi Code Annotated § 93-5-23 (Rev.1994) provides the standards to be considered when determining when emancipation occurs. In this case, the chancery court heard testimony concerning this issue, and then requested briefs before issuing an order on the merits. The chancery court found that neither Barbara nor Jimmy renounced their “correlative rights” as required by Caldwell v. Caldwell, 579 So.2d 543, 549 (Miss.1991). The chancery court found that while Jimmy was not in school full-time and held full-time employment, he continued to live at home and Barbara continued to perform parental duties. Further, while Jimmy testified Barbara requested that he pay $250 a month in rent, Barbara also testified that her costs in providing care for him exceeded that amount, and without Jimmy’s contributions, she could not have provided his care. The chancery court specifically found that this arrangement did “not rise to the level required for emancipation.” Given the consideration given to this issue, we cannot say the chancery court abused its discretion in making this finding. We are mindful that appellate review of the application of a statute of limitations is subject to a de novo standard. Sarris, 782 So.2d at 723(¶ 6). We also note the careful consideration that the chancery court gave to the issue of emancipation. We find that the chancery court did not err in finding that Jimmy did not become emancipated until his twenty-first birthday, on January 17, 1995, and the seven year statute of limitations of Mississippi Code Annotated Section 93-5-23 (Supp.2001) did not bar Barbara’s claim for unpaid child support.

¶ 14. Additionally, Louis contends that Barbara should have been collaterally estopped from claiming she was owed unpaid child support because she had stated to a bankruptcy court she had no income from “alimony or support.” The chancery court found this evidence to be irrelevant. First, the chancery court noted that the right to receive the support went to Jimmy and not to Barbara, and she could not make a statement against another person’s interest. Secondly, the chancery court found that because this was a contempt action, the original judgment for divorce created the right to receive child support, and the ultimate issue was whether the chancery court had the power to enforce its own order, and Barbara’s statements had no effect upon the chancery court’s powers of contempt, even though the statements could have some effect in the bankruptcy proceedings. “The objective of civil contempt is to' compel obedience to the orders of the court.” Shepherd v. Shepherd, 769 So.2d 242, 246(¶ 19) (Miss.Ct.App.2000). While Barbara’s statements in bankruptcy court might have some bearing upon proceedings there, any statement she made in that court cannot deprive the chancery court of the power to enforce its own order. Therefore, the chancery court did not err in finding Barbara’s statement in the bankruptcy court irrelevant.

¶ 15. Additionally, Louis contends that the chancery court abused its discretion by awarding the back child support to Barbara rather than Jimmy. During the proceedings, Jimmy never sought to compel an accounting. Louis cites no authority to show that he has standing to assert a direct claim by Jimmy to receive the unpaid support. There is no impropriety in a parent receiving an award of back child support, though the parent has a legal duty to use the award for the child’s benefit. Alexander v. Alexander, 494 So.2d 365, 367 (Miss.1986). Under the facts of this case, there was no abuse of discretion in the chancery court’s award of the judgment for unpaid support for Barbara.

¶ 16. Additionally, Louis asserts that the chancery court abused its discretion in not granting Louis a set-off from the amount of unpaid child support for the funds he expended in buying Jimmy a pick-up truck. Louis contends that when Jimmy reached his sixteenth birthday in 1992, he and Barbara agreed that he would buy a pick-up truck and pay the insurance for Jimmy in lieu of his child support obligations. Barbara denied making this agreement. She testified that prior to Louis buying the pick-up truck, Jimmy already had a vehicle to drive. Barbara was employed as a bank teller living a moderate life style. In 1992, Jimmy was not contributing to household expenses. The chancery court stated in its order:

[t]his Court is sympathetic to Defendant’s plight, but a vehicle was not a necessity in these circumstances and was not in the manner of the child support ordered by the Court. Therefore, Defendant is not entitled to a credit for the payments of the vehicle or the insurance. As our Supreme Court has stated, he who unilaterally modifies a court order does so at his own peril. Alexander v. Alexander, 494 So.2d 365, 367 (Miss.1986).

Under these facts, the chancery court did not abuse its discretion in denying Louis’s request for the set-off.

III. INCONSISTENCY BETWEEN ORDER AND JUDGMENT

¶ 17. Louis asserts the chancery court abused its discretion because an order the chancery court issued after it received briefs on the issue of the unpaid child support only addressed that single issue, while the judgment that was issued approximately one month after the order dealt with all three issues raised in Barbara’s pleading: unpaid child support, retirement benefits and attorney’s fees. Louis asserts no authority for this argument. Failure to cite legal authority in support of a proposition may be considered a waiver of the merits of the issue. Grey v. Grey, 638 So.2d 488, 491 (Miss.1994).

¶ 18. Moreover, there is no merit to Louis’s argument. The chancery court held a hearing going to all three issues. During the hearing, the chancery court requested briefing on the single issue of the unpaid child support, and at the conclusion of the hearing, it made bench rulings in Barbara’s favor on the issues of retirement benefits and attorney’s fees. Following consideration of the briefs, the chancery court issued its order. Approximately one month later, the chancery court issued the judgment which recited the relief granted in the order going to child support and recited the relief it had made in its bench ruling on the claims for retirement benefits and attorney’s fees. A trial court may award any and all relief requested on any and all issues addressed in a party’s initial pleadings. Lehman-Roberts Co. v. State Highway Comm’n, 673 So.2d 742, 744 (Miss.1996). There was nothing improper in the chancery court’s entry of its judgment.

¶ 19. THE JUDGMENT OF THE CHANCERY COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

IRVING, J.,

Concurring in Part, Dissenting in Part.

¶20. The majority concludes that the chancellor did not err in declining to time-bar Barbara’s claim for back child support for the minor child of the parties. I have tremendous respect for my colleagues in the majority. However, I cannot agree with this conclusion; therefore, I respectfully dissent from this portion of the majority opinion.

¶ 21. The evidence is undisputed that the minor child, Jimmy, turned eighteen years of age on January 20, 1992, and that he became employed full-time the Monday following his eighteenth birthday. The evidence is also undisputed that Jimmy has not been enrolled in school on a full-time basis since reaching his eighteenth birthday.

¶ 22. Barbara, the mother, filed her motion for citation for contempt on June 7, 2000. In this motion, she sought to hold Louis, the father, in contempt for, among other things, the failure to pay child support as ordered on October 5, 1990. If Jimmy became emancipated on January 20, 1992, then a claim for child support arrearage had to be made prior to January 20, 1999, to avoid the seven-year time bar for collecting a judgment. However, no complaint or -petition was filed seeking a declaration of emancipation for Jimmy. The issue was raised in the contempt proceedings.

¶ 23. As already observed, the chancellor declined to find that Jimmy had become emancipated on January 20, 1992. The chancellor’s declination in this regard must be viewed under the abuse of discretion standard. I believe that discretion was abused in this case.

¶24. The record reflects that in September 1994, Jimmy moved out of his mother’s home. There is no dispute about this fact. Therefore, the focus is on Jimmy’s status during the period between January 20, 1992, and September 1994. On January 20, 1992, Jimmy started working full-time as a diesel mechanic. The record does not reveal his rate of pay, except that it was above minimum wage.

¶ 25. On direct examination, Jimmy gave the following pertinent testimony:

Q. Okay. Up until the time that you moved out, sir, did you feel you were able to support yourself on your own?
A. I never debated that issue with myself or anything.
Q. Okay.
A. I was content with living at home.
Q. Did you list on your college and stuff that that was your residence?
A. I’m sure I did.
Q. Okay. Thank you. I have a couple of more questions. The money that you made, Mr. Carite, a portion you gave to your mother, approximately 100 to 250 a month over a time period, what did you do with the rest of your money, sir?
A. Spent it on whatever I wanted to.
Q. Okay. Did you buy gas for your vehicle?
A. I did.
Q. Did you pay for maintenance for your vehicle?
A. Yeah.
Q. Did you go out with your friends, sir?
A. Sure, I did.
Q. Okay. How often did you go out with your friends?
A. I don’t know. Every night that I wanted to, seven days a week.
Q. That’s fair and I understand. What I’m asking' — let me go further. Do you know how much you spent at that time period on going out with your friends?
A. Whatever I didn’t give my mother, I spent from paycheck to paycheck.
* * * ❖ * *
Q. Now, when did you turn eighteen?
A. I’m not sure.
Q. Was that January the 17th of ’92?
A. Yes.
Q. Okay. When did you go to work full time?
A. Full time?
Q. Yes, sir.
A. I believe it was the day after I turned eighteen years old.
Q. Okay. Would it be correct to say it was the first Monday after you turned eighteen?
A. Yes, sir.
Q. And that would have been January the 20th of ’92?
A. Yes, sir, I believe so.
Q. From the day that you went to work full time when you were eighteen, have you worked continuously on a full — time basis?
A. Yes, sir.
Q. From the day you left after having completed your course work at Hinds Community College on De-eember the 20th, 1991, did you ever again enroll on a full-time basis at an educational institution?
A. No, sir.
5¡* ^

¶ 26. On cross-examination, Jimmy gave the following testimony:

Q. Okay. I wanted to discuss the amount of payments you made to your mother while your were still living at home. Is it your testimony you paid $250 a month to your mother while you were still living at home? Is it your testimony you paid $250 a month to your mother while you were still living at home?
A. Towards the end of my time — right before I moved out, that’s how much I was paying approximately. I don’t know exactly the total figures of what it was costing me a month to five with her. But it was approximately that much, yes, sir.
Q. And the money you were paying to your mother was money you earned from your full-time employment?
A. Yes, sir.
Q. And I believe at you deposition you referred to that as rent.
A. Yes, sir.

¶ 27. Mississippi Code Annotated section 93-5-23 (Supp.2001), states in pertinent part:

The duty of support of a child terminates upon the emancipation of the child. The court may determine that emancipation has occurred and no other support obligation exists when the child:
(c) Discontinues full-time enrollment in school and obtains full-time employment prior to attaining the age of twenty-one years.

¶ 28. The quoted testimony, which was not disputed, eliminates any contention that Jimmy continued to be enrolled full-time in school and had not obtained full-time employment prior to attaining the age twenty-one years. Since the evidence is undisputed that Jimmy had discontinued full-time enrollment and obtained full-time employment prior to his twenty-first birthday, it appears to me that, despite the discretionary authority permitted by the statute, the chancellor must give some explanation or justification for his decision; otherwise, the decision becomes arbitrary and capricious.

¶ 29. It should be noted that, although the emancipation issue focuses our attention to the period following Jimmy’s eighteenth birthday, Jimmy actually dropped out of high school in the ninth grade. After leaving high school, Jimmy enrolled in Hinds Community College in the voca-. tional technical department, eventually earning a degree in diesel mechanics. He also earned his general education development (GED) certificate after graduating from Hinds. He acquired his GED by going to school at night while working full-time.

¶ 30. The chancellor, relying upon Caldwell v. Caldwell, 579 So.2d 543 (Miss.1991), was not persuaded that Jimmy had become emancipated because Jimmy’s mother “continued to perform various parental duties including cooking, laundry, cleaning and the like.” I find the chancellor’s and the majority’s reliance upon Caldwell to be misplaced. The facts in Caldwell are easily distinguishable from our facts.

¶31. In Caldwell, the father was ordered to pay for his son’s college expenses and car insurance. Id. at 548. When the son called his father for money for his college expenses, the father told him that money was scarce, and asked him if he wanted to go to school or stay out and work full-time. Id. The son, who had already started working part-time during the summer, felt his father was attempting to discourage him from going to school. Id. When the father did not produce the funds for his son’s college expenses, the son continued to work, becoming a full-time employee approximately a year later. Id. The son paid his truck note from his earnings but did not contribute to the household expenses. Id. He attended East Mississippi Community College part-time, at his own expense. Id. The chancery court found that the son had been emancipated. The Mississippi Supreme Court disagreed. In reversing the chancellor, the supreme court said this:

It is clear from the record that Carl Caldwell [the father] simply did not comply with the court’s order that he pay his son’s college expenses. Though some of the evidence supports a finding of emancipation, Carl Caldwell ignored the final decree, in effect forcing his son to abandon his schooling and become a full-time worker, and then sought to have Mark [the son] declared emancipated to his financial benefit.

Caldwell, 579 So.2d at 549.

¶ 32. Our case is significantly different in that here, Jimmy dropped out of school on his own in the ninth grade. His father continued to pay child support thereafter for approximately two years until Jimmy received a degree in diesel mechanics and became employed full-time. Further, in our case, it was the father who purchased the truck and paid the insurance on it, not the son, as was the case in Caldwell. In our case, the son paid rent to his mother while in Caldwell the son did not. Finally, and perhaps most importantly, in Caldwell, the father forced his son into full-time employment by shirking his support obligation. That is not our case.

¶ 33. It is true that here, as in Caldwell, Jimmy continued living at home and the mother cooked, cleaned, and bought groceries as well as did the laundry for him. However, to base a finding that emancipation has not occurred simply because the mother continued to do these things is, in my opinion, a much too liberal reading of Caldwell. After all, some mothers, without compensation, wash, cook, feed and do the laundry for sons way past their majority. In our case, however, the mother was given some compensation or rent. While the mother testified that the amount Jimmy paid was not adequate to cover all of his expenses, I cannot overlook the fact that Jimmy was employed as a diesel mechanic. It is common knowledge that diesel mechanics command substantial compensation for the work they do. The mere fact that the mother in this case chose not to require Jimmy to pay more, if indeed more was needed, should not carry any weight in the emancipation analysis. Some parents exercise extremely poor judgment when it comes to their children, even their grown children.

¶ 34. I conclude with the observation that Jimmy’s testimony compels the conclusion that he was essentially free of his mother’s constraints, that he did what he wanted to when he wanted to, and that his mother had no say in the matter or, at least, did not attempt to exercise the normal parental controls as would be expected to be exercised in the case of a non-emancipated child.

¶ 35. For the reasons presented, I dissent from the majority’s conclusion that the chancellor did not abuse his discretion when he refused to find that Jimmy had been emancipated and that Barbara’s claim for back child support is time-barred.

BRIDGES, J. Joins This Separate Opinion.


author: BRIDGES, J.,

text:
    Bennie TILLMAN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01266-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2002.
    Rehearing Denied Jan. 21, 2003.
    Certiorari Denied April 3, 2003.

      Dan W. Duggan, Brandon, attorney for appellant.
    Office of the Attorney General by: Scott Stuart, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Bennie Tillman was indicted on one count of possession of cocaine by the grand jury of Marion County. The Circuit Court of Marion County tried and convicted Tillman, sentencing him to life in prison without possibility of parole as a habitual offender. Tillman perfected his appeal.

STATEMENT OF ISSUES

I. DID THE COURT ERR BY REJECTING TILLMAN’S BATSON CHALLENGES OF TWO PEREMPTORY STRIKES BY THE STATE?

II. IS THE GUILTY VERDICT SUPPORTED BY SUFFICIENT EVIDENCE?

FACTS

¶ 2. Bennie Tillman was riding in Frederick Allen’s car when officers of the Columbia Police Department stopped Allen for driving without a license. Allen consented to a search of his car, and the police discovered an open container of beer and a bag containing several grams of cocaine on the passenger side floorboard. The police also discovered the remains of a marijuana cigarette in the ashtray, and a crack pipe in the center console.

¶ 3. Tillman was arrested and charged with violating the open container law and possession of cocaine. Allen later admitted that the open container of beer was his.

ANALYSIS

I. DID THE COURT ERR BY REJECTING TILLMAN’S BATSON CHALLENGES OF TWO PEREMPTORY STRIKES BY THE STATE?

¶ 4. Tillman assigns as error the court’s holding that there was not sufficient evidence to show a prima facie case of racial discrimination in jury selection. The trial court is required to first determine if the defendant has demonstrated a prima facie case of racial discrimination in the State’s use of its peremptory strikes of jurors before proceeding with a hearing on the issue. Batson v. Kentucky, 476 U.S. 79, 90-97, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This Court grants extensive deference to a trial court’s Batson rulings. Spann v. State, 771 So.2d 883, 904(¶ 61)(Miss.2000). We review Batson rulings for clear error. Johnson v. State, 529 So.2d 577, 583 (Miss.1988). A Batson challenge to peremptory strikes has three parts, the first of which requires that the opponent of the peremptory strike make out a prima facie ease of purposeful racial discrimination. Puckett v. State, 788 So.2d 752, 756 (¶ 10) (Miss.2001).

¶ 5. The court below held that there was no prima facie case of racial discrimination, denying Tillman the requested Batson relief, and then proceeded to explain its reasons. The court found that although the State had struck two black jurors, the State had also accepted several other black jurors. The court also found that the State had attempted to strike for cause the two black jurors that were struck peremptorily because each had relatives either under indictment for or serving time for felonies. The court additionally found that the State had not accepted any jurors that had relatives who were under indictment for felonies, or were serving time for felonies.

¶ 6. Finding no error, we affirm.

II. IS THE GUILTY VERDICT SUPPORTED BY SUFFICIENT EVIDENCE?

¶ 7. This Court reviews the denial of motions for directed verdicts and JNOV under the same standard: the evidence is viewed in the light most favorable to the State, and the result overturned only where “reasonable and fairminded jurors could only find the defendant not guilty.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). Tillman contends that the evidence is not sufficient to support that he had constructive possession of the cocaine.

¶ 8. The law of constructive possession requires sufficient facts be shown for a jury to find that the defendant had control or dominion over the narcotics. Kinzey v. State, 498 So.2d 814, 818-19 (Miss.1986). Proximity to the res gestae is suggestive of constructive possession. Id. Where the defendant is not in exclusive possession of the premises where the narcotics are found, other competent evidence must exist connecting him to the narcotics. Powell v. State, 355 So.2d 1378, 1379 (Miss.1978).

¶ 9. Three of the police officers involved in Tillman’s arrest and Frederick Allen testified at trial. One officer testified that she had seen Tillman carrying a brown package in his hands before entering the car. All of the witnesses testified that when the car was searched, the police discovered the open container of beer and the bag containing the crack cocaine on the passenger side floorboard at Tillman’s feet.

¶ 10. Allen testified that the beer belonged to him, and additionally he testified that the cocaine did not belong to him. Allen did not concede in response to Tillman’s questioning that someone else who had had control of the car before him could have placed the cocaine there. Allen testified further that he did not know Tillman was in possession of crack cocaine at any time prior to the search by the police.

¶ 11. Tillman did not present any witnesses at trial to contest the State’s account of events; thus the facts must stand, uncontroverted. Taken together, and viewed in the light most favorable to the State, we must conclude that the evidence presented at trial sufficed to sustain the guilty verdict.

CONCLUSION

¶ 12. Tillman challenges his conviction on two grounds: first, the State improperly dismissed jurors peremptorily based on their race; and second, the evidence of possession was insufficient to sustain the conviction. He succeeds on neither ground. The court below ruled that Tillman had not made out a prima facie case of racial discrimination, scuttling his Bat-son argument, and we find no error. The court below also denied Tillman’s motion for JNOV, and given the evidence, we must concur.

¶ 13. For the foregoing reasons, we affirm the judgment of the court below.

¶ 14. THE JUDGMENT OF THE CIRCUIT OF MARION COUNTY OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE AS A HABITUAL OFFENDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT POSSIBILITY OF PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

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