author: McMILLIN, C. J.,

text:
    Robert A. SEALE, III, Appellant v. Dorothy W. SEALE, Appellee.
    No. 2002-CA-01161-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2004.

      Sarah Jean Liddy, Jackson, attorney for appellant.
    Cliff R. Easley, Bruce, attorney for ap-pellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   McMILLIN, C. J.,

for the Court.

¶ 1. Robert Seale has appealed from a judgment of the Marshall County Chancery Court reducing his periodic alimony obligation to his former wife, Dorothy Sea-le, from $1,250 per month to $850 per month. Mr. Seale raises two contentions in this appeal. First, he complains that the chancellor erred in failing to credit monthly Social Security benefits received by Mrs. Seale attributable to his earning history against his monthly obligation. Secondly, he alleges that the chancellor abused his discretion in only reducing the monthly obligation by $400 per month when the evidence showed that he was plainly entitled to a greater reduction. We find that the first issue is not properly before this Court. We further find that the second issue is without merit. Therefore, we affirm the judgment of the chancellor.

I.

Facts

¶ 2. Mr. and Mrs. Seale were divorced after thirty-one years of marriage in 1990. The parties settled the financial aspects of the divorce on terms that were subsequently approved by the chancellor and incorporated into the terms of the divorce judgment. Among the mutually-agreeable terms was the provision that Mr. Seale would pay periodic alimony to Mrs. Seale in the amount of $1,250 per month. At the time of the divorce, Mr. Seale was a registered pharmacist who owned and operated his own drug store. Mrs. Seale was not employed at the time.

¶ 3. Subsequently, in late 2001, Mr. Sea-le was diagnosed with cancer. Faced with the prospect of surgery, Mr. Seale sold his pharmacy business. Mr. Seale had remarried in the interim period, and the pharmacy business was owned jointly by Mr. Sea-le and his present wife. A major portion of the sales price was deferred to be paid by the purchaser in monthly installments over a ten-year period.

¶ 4. Based on allegations of diminished income, Mr. Seale filed a motion to modify his monthly alimony obligation. The chancellor, finding that there had been a material change in circumstance that could not have been anticipated by the parties at the time of the divorce, granted Mr. Seale relief by reducing his monthly obligation from $1,250 to $850 per month.

¶ 5. Mr. Seale, being of the opinion that the proof plainly shows that he was entitled to greater relief than that afforded by the chancellor, perfected this appeal. More details of the facts concerning the financial aspects of the parties will be set out in the appropriate portions of our analysis that follows.

II.

Credit for Social Security Benefits

¶ 6. The proof is uncontradieted that, at the time of the hearing in this modification proceeding, Mr. Seale was drawing Social Security benefits in the amount of $1,304 per month and that Mrs. Seale was also drawing monthly benefits, though there is some confusion as to whether her monthly benefit check is $485 or $498. Because of our disposition of this issue, however, we find it unnecessary to attempt to resolve this minor point of confusion in the record.

¶ 7. In this appeal, -Mr. Seale sets out as his first issue that the chancellor erred in failing to credit Mrs. Seale’s monthly Social Security benefit check against Mr. Seale’s recurring alimony obligation. He cites the case of Spalding v. Spalding in support of his contention. Spalding v. Spalding, 691 So.2d 435 (Miss.1997). The Spalding case, as this Court understands it, holds that Social .Security payments received by the wife should be credited against alimony in the situation where the amount was “derived from her husband’s Social Security account....” Id. at 438-39. Subsequently in the opinion, the Spalding court makes reference to “derivative Social Security payments” being used to satisfy alimony obligations. Id. at 440. Thus, Spalding would not support a contention that an alimony obligor would be entitled to credit if the obligee was receiving benefits based on the obli-gee’s own earning history. The issue of whether a credit is due or not, therefore, depends on findings of fact beyond proof that benefits in a certain amount are being received by the obligee.

¶ 8. In this case, there was no contention at the trial level that the benefits being received by Mrs. Seale were attributable to her former husband’s earning history such that they could properly be classed as “derivative Social Security payments” within the holding of Spalding. It, therefore, becomes impossible for this Court, sitting in an appellate capacity, to meaningfully consider Mr. Seale’s contentions. This situation points up once again the underlying purpose behind the generally applicable rule that issues may not be raised for the first time on appeal. Parker v. Miss. Game and Fish Comm’n, 555 So.2d 725, 730 (Miss.1989); Crowe v. Smith, 603 So.2d 301, 305 (Miss.1992).

¶ 9. We decline to consider this issue as not being properly before us. We do so without prejudice to Mr. Seale’s right to subsequently raise the issue of his entitlement to future credit upon presentation of the necessary proof in an appropriate proceeding at the trial level where the issue is pled and the issue fully tried.

III.

Abuse of Discretion

¶ 10. Mr. Seale contends, in essence, that the proof plainly showed that he was entitled to a more substantial reduction in alimony than the $400 allowed by the chancellor. The evidence showed that, since the divorce, Mr. Seale had transferred substantial assets to his second wife, including a one-half interest in the drugstore business as well as title to commercial property that produced something on the order of $800 per month in rental income. Mr. Seale was shown to have Social Security income of $1,304 per month, a state retirement check in the amount of $58.68 per month, and his share of the monthly installment on the sale of the drugstore in the amount of $424.26 per month. There . was additional evidence that Mr. Seale had untapped retirement accounts totaling approximately $34,000. Mr. Seale testified to recurring monthly living expenses of $2,689.18. There was evidence that the drugstore, prior to its sale, had produced annual net income for Mr. Seale in an amount approximating $24,000.

¶ 11. The evidence reflected that Mrs. Seale had income of $485 or $498 in monthly Social Security benefits and interest income of $267 per month at the time she filed her required financial disclosure documents with the trial court. There was some contention that her interest income had declined significantly thereafter as interest rates paid by financial institutions had fallen sharply. The chancellor, nevertheless, relied on the $267 figure to analyze her income.

¶ 12. The chancellor found that Mr. Seale had suffered a loss in income through no fault of his own brought on by his debilitating illness. He found that this change in Mr. Seale’s ability to produce income from which his alimony obligation to Mrs. Seale could be paid was something that was not within the contemplation of the parties at the time of the divorce. Therefore, he concluded that there had been the requisite material change in circumstance that would justify some adjustment in Mr. Seale’s alimony obligation. Magee v. Magee, 754 So.2d 1275, 1279(¶ 8) (Miss.Ct.App.1999). Nevertheless, the court further noted that Mrs. Seale had been substantially dependent upon alimony payments from Mr. Seale for the entire period since the divorce to meet her monthly living expenses. Balancing the competing considerations, the chancellor, with some apparent reluctance, concluded that a $400 reduction in Mr. Seale’s alimony obligation would be warranted.

¶ 13. Without citing any specific authority in his brief, Mr. Seale simply contends that, on the face of this record, “Mrs. Seale is now in a much better financial position while Mr. Seale is in a worse financial position, and therefore, Mr. Seale’s alimony obligation should be lowered beyond $400.”

¶ 14. In matters such as this, the chancellor has substantial discretion in reaching a decision that he finds equitable and fair to both parties. Id. at 1278-79(¶ 7). This Court, sitting in review of the chancellor’s decision, is limited in the scope of our inquiry to search for an abuse of that discretion. Id. Mr. Seale bases much of his argument on a comparison of the relative net worth of the assets possessed by both parties, claiming that “Mrs. Seale’s assets are almost double that of Mr. Sea-le.” Nevertheless, even by Mr. Seale’s own calculation, Mrs. Seale’s assets total less than $175,000. Even that figure includes $76,000 as the alleged value of her residence along with $20,000 in personal property. These assets are incapable of producing any amount of income to meet Mrs. Seale’s recurring monthly living expenses. In that situation, it seems evident that Mrs. Seale remains in the situation where she needs additional monthly income from some source to meet her basic living needs. Based on the evidence before us, we are not convinced that, after this marriage of thirty-one years was ended based on grounds of fault attributable to Mr. Seale, requiring him to continue to contribute an amount of only $850 per month to permit his former wife to continue to meet recurring expenses that, by any analysis, could not be considered excessive does not demonstrate the sort of abuse of discretion afforded the chancellor that would warrant the interference of this Court.

¶ 15. THE JUDGMENT OF THE CHANCERY COURT OF MARSHALL COUNTY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: McMILLIN, C.J.,

license: Public Domain

text:
    Robert Lee DAVIS a/k/a “Nut”, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00780-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2004.

      Wayne O’Dell Lee, Greenville, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   McMILLIN, C.J.,

for the Court.

¶ 1. Robert Lee Davis was convicted by a jury in the Circuit Court of Washington County on all three counts of a criminal indictment. The indictment charged two counts of kidnaping and one count of rape. Davis unsuccessfully challenged the sufficiency of the evidence of guilt before the circuit court and also sought, without success, to have the trial court order a new trial on the ground that the verdicts were against the weight of the evidence. He has appealed the trial court’s decision to deny him any form of relief from the jury verdicts. We find the contentions raised in the appeal to be without merit and, for that reason, we affirm.

I.

Facts

¶2. The State presented evidence to the jury that would support the following version of events. Davis, in a vehicle belonging to his mother, offered to take a number of young people home from a recreational facility in Washington County known as Roller World after the business closed at approximately midnight. Davis dropped off all passengers except for two sisters, T.W., age fifteen, and L.W., age twelve. Rather than taking these sisters home, Davis drove them to another location, claiming he was going to a relative’s house. Instead, he stopped the vehicle on the road, at which time T.W. managed to flee the scene despite initial attempts by Davis to restrain her. T.W. went to a near-by house and persuaded the occupant of that house to help her contact her mother. Additionally, law enforcement officers were called. L.W., unsuccessful in her attempts to escape, was forced to engage in sexual intercourse with Davis against her will when he forcibly restrained her attempts to flee by holding her around the neck.

¶ 3. L.W. was subsequently taken for a medical examination and the results of the tests indicated that L.W. had, in fact, engaged in sexual intercourse.

¶ 4. The defense, in cross-examining various witnesses for the State, including the two alleged victims, was successful in demonstrating a number of inconsistencies between the testimony offered by the witnesses at trial and statements offered by these same individuals during the course of the law enforcement investigation that led to Davis’s indictment. These discrepancies included such matters as the time that various events occurred, where the various individuals were seated in Davis’s vehicle, whether L.W. removed her underwear herself or whether Davis did so, whether Davis had ever displayed a gun as a means of coercing the victims into complying with his demands, and whether the act of intercourse occurred inside or outside the vehicle. Additionally, evidence was presented that the perpetrator had worn a condom, which was apparently an effort on the part of the defense to portray this as a consensual sexual encounter.

II.

Discussion

¶ 5. Whether considering a challenge to the sufficiency of the evidence demonstrating guilt or a claim that the verdict was against the weight of the evidence, this Court is charged to view all the evidence in the light most favorable to upholding the jury’s verdict. Wetz v. State, 503 So.2d 803, 808 (Miss.1987).

¶ 6. Only if an appellate court is convinced that the State’s proof as to one or more of the essential elements of the crime was so lacking that a reasonable juror fairly assessing the evidence could only find the defendant not guilty ought that court to intercede to reverse a conviction and render a judgment of acquittal. Id.

¶ 7. A new trial is appropriate in those instances where the court, after a thorough review of the evidence, is convinced that to permit the guilty verdict to stand would constitute a substantial miscarriage of justice. Moran v. State, 822 So.2d 1074(¶ 3) (Miss.Ct.App.2002), cert. denied, 830 So.2d 1251 (Miss.2002). That issue must be first presented to the trial court in the form of a new trial motion before it may properly be raised on appeal. E.g., Ponder v. State, 335 So.2d 885, 886 (Miss.1976). One reason for that rule is that such a determination is substantially more subjective than a challenge to the sufficiency of the evidence and the trial court, having heard the evidence firsthand, is better positioned to assess the weight and worth of the evidence than is an appellate court having only the written record to consider. See, Gathright v. State, 380 So.2d 1276 (Miss.1980). Because of this fact, a trial court’s decision to deny a new trial motion on this ground is afforded a measure of deference when challenged on appeal and may be disturbed only if the appellate court determines that the discretion afforded the court in such matters has been abused. See, Wetz, 503 So.2d at 812.

A.

Sufficiency of the Evidence

¶ 8. Our analysis of the evidence to determine if the State has produced sufficient proof to show the essential elements of the crime reveals two different situations between the kidnap charge and the rape counts. We will consider them separately.

i.

Kidnaping Counts

¶ 9. Davis, in his brief to this Court, does not directly discuss the essential elements of the crime of kidnaping nor does he proceed from there to point out which of these elements the State failed to prove as a matter of law. The thrust of his argument appears to be that the young sisters in his car consented to his deviation from the original purpose for which they entered the vehicle, that purpose being to transport them home. There was evidence in the form of the testimony of both sisters that they did not consent to the side trip that Davis took after letting all other passengers out of the car, that they questioned him as to what he was doing, and that they both tried to escape when Davis stopped the car. Kidnaping is defined in Section 97-3-53 of the Mississippi Code as the act of detaining another person against her will with the intent to secretly confine that person. Miss.Code Ann. § 97-3-53 (Rev.2000). The act of seizing may be accomplished by force or by trickery and deceit. See, e.g., Conley v. State, 790 So.2d 773, 795-96 (¶ 83) (Miss.2001). The jury has the primary responsibility for hearing the evidence, assessing the credibility of the witnesses, and deciding what weight and worth to afford the various elements of proof. Hicks v. State, 812 So.2d 179(¶ 40) (Miss.2002). In this case, there was evidence in the form of the testimony of the two alleged kidnap victims that would establish the necessary elements of kidnaping based on the proposition that the victims were persuaded to enter the vehicle on the promise of a ride home but were taken against their will to another location.

ii.

The Rape Charge

¶ 10. The first step in assessing the evidence presented by the State to obtain the conviction is to identify the necessary essential elements of the crime itself. It is at this threshold step that we encounter some difficulty based on the form of the indictment. The relevant charging language in the indictment stated as follows:

That ROBERT DAVIS ... did ... forcibly have sexual intercourse with L.W., a female human being under the age of sixteen (16) years, against the will and without the consent of the said L.W.,...

¶ 11. The indictment does not make reference to the particular statute alleged to have criminalized his activity; however, from our review of the record, we conclude that the State proceeded on the theory that Davis’s conduct constituted a violation of Section 97-3-65(4)(a) of the Mississippi Code. That provision of the Code, in relevant part, provides as follows:

Every person who shall have forcible sexual intercourse with any person, ... upon conviction, shall be imprisoned for life in the State Penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment, the court shall fix the penalty at imprisonment in the State Penitentiary for any term as the court, in its discretion, may determine.

Miss.Code Ann. § 97-3-65(4)(a) (Rev. 2000).

¶ 12. L.W. was twelve years of age when the incident allegedly occurred. Despite the circumstances of the victim’s age, the prosecution elected not to proceed under earlier provisions of Section 97-3-65 intended to deal with situations involving sexual misconduct with children of tender years. These provisions appear in subsection (1) under the general heading of “statutory rape.” Miss.Code Ann. § 97-3-65(1) (Rev.2000).

¶ 13. It is unclear why the State felt the necessity to charge that the victim was under sixteen years of age in the indictment. The remaining language of this count does not bring the charge within any of the statutory provisions relating to statutory rape since it lacks the necessary allegation of the defendant’s age in comparison to the victim and an allegation that the victim was not married to the defendant. Id. As to a charge of forcible rape under subsection (4), the age of the victim is irrelevant. Insofar as the indictment is concerned, therefore, we treat the assertion of the defendant’s age as surplusage.

¶ 14. The prosecutor’s decision to charge forcible rape had the effect of leaving the matter of the victim’s consent as an issue of fact in the case despite her tender years. “Forcible ravishment of a female without her consent and sexual intercourse with a female mentally incapable of giving consent because of tender years or mental incapacity are separate and distinct crimes.” Lee v. State, 322 So.2d 751, 752 (Miss.1975). The need for evidence of force to overcome the victim’s resistance in the situation where the prosecution has elected to charge that crime has been applied in circumstances where the victim was as young as four years of age. Bonner v. State, 65 Miss. 293, 296, 3 So. 663, 664-65 (1888). In the situation where, despite the young age of the victim, the prosecution elects to charge the separate crime of forcible rape, the supreme court said “the principle that a child of tender years cannot consent, should not be invoked.” Id. “If ... it is desired to avoid the necessity of proving that it was committed forcibly and against her will, the indictment should be drawn so as to accomplish that end.” Id. It should be noted that, in Bonner, the alleged victim was only four years old but the court maintained its view that some evidence of force and lack of consent was necessary in order to sustain a conviction. Id.

¶ 15. It is with the foregoing considerations in mind that we assess the evidence presented by the State to determine if it was sufficient to uphold the conviction. Although the defendant did not ask for an instruction regarding consent as a defense, it is evident from our review of the record that the defendant was attempting to portray this as a consensual sexual encounter. The defense apparently intended to convince the jury that the victim’s allegations were simply an attempt to avoid blame for her own misconduct.

¶ 16. The State, however, presented evidence that Davis held his victim around the neck and forced her into the back seat of his vehicle, demanded that she remove her underwear, and then engaged in sexual intercourse with her. At no time during cross-examination of the victim did defense counsel inquire directly into the issue of consent. Davis himself declined to testify, which was his constitutional right, but was a decision that left L.W.’s version of the events essentially uncontradicted. No evidence was elicited by the defense that would indicate that this twelve year old female child had failed to resist Davis’s efforts with whatever means were available to her. To the contrary, she testified that she followed his commands because she was afraid.

¶ 17. The defense was able to demonstrate a fair number of inconsistencies between L.W.’s in-court testimony and her version of events contained in a written statement she had given law enforcement investigators shortly after the incident. Nevertheless, this sort of impeachment does not conclusively demonstrate the untruthfulness of a witness’s courtroom testimony. Rather, it is simply a factor for the jury to weigh in assessing the credibility of a witness and in determining what weight and worth to afford the witness’s testimony. See, e.g., Hicks, 812 So.2d at (¶ 40). The jury, sitting as finders of fact, hears the evidence first hand and has the opportunity to view the witness and observe her demeanor on the stand; matters which are invaluable in assessing questions regarding credibility. It is for this reason that a jury’s resolution of disputed facts is entitled to deference when reviewed by an appellate court. Hogan v. State, 854 So.2d 497(¶ 17) (Miss.Ct.App.2003). There can be no dispute that the testimony of the victim of a crime, if found credible by the jury, is sufficient standing alone to uphold a conviction. Price v. State, 847 So.2d 290(¶ 12) (Miss.Ct.App.2003). This is a necessary truth in our criminal justice system since it is in the very nature of many criminal enterprises that they are committed under situations where other potential witnesses are not available.

¶ 18. We are not persuaded that L.W.’s testimony, even when viewed in light of the discrepancies in her earlier statement, is so incredible or otherwise contradicted that it was rendered unworthy of belief as a matter of law. Because her testimony provided competent evidence that she was forced to engage in sexual intercourse with Davis against her will, it was under the law of this State sufficient to support a conviction.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF COUNTS I AND II, KIDNAPING, AND SENTENCE OF THIRTY YEARS FOR EACH COUNT AND COUNT III, RAPE, SENTENCE OF LIFE, ALL TO BE SERVED WITHOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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


text:
    Johnny WRIGHT, a/k/a “Pig”, a/k/a Johnnie Wright, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00535-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2004.

      Cynthia Ann Stewart, Jackson, attorney for appellant.

      Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   McMILLIN, C. J.,

for the Court.

¶ 1. Johnny Wright was indicted for two counts of drug-related criminal activity. One count was for sale of cocaine and the second count was for possession of a certain quantity of cocaine alleged to have been in his possession at the time of his arrest on the sale charge. The indictment alleged that Wright was subject to enhanced punishment on the basis that he had a prior drug-related conviction and he was further charged as a habitual criminal under Section 99-19-81 of the Mississippi Code.

¶ 2. Wright’s first trial on the two charges ended in a mistrial on February 5, 2001, for reasons that do not appear in the record now before us. He was retried on February 12 and 18, 2001, and the jury returned a guilty verdict on both counts. Wright was sentenced to sixty years in the custody of the Mississippi Department of Corrections on the sale charge and thirty-two years on the possession charge, with the sentences ordered to be served consecutively.

¶ 3. Wright has appealed his conviction to this Court and in his appeal he makes the following contentions: (a) the indictment was fatally flawed on double jeopardy considerations because, on its face, it is impossible to rule out the possibility that he was being charged for both the possession of and the sale of the same quantity of cocaine; (b) the trial court erred in denying his continuance request in order to obtain an expert witness to challenge the accuracy of the State Crime Laboratory’s analysis of the substances alleged by the State to be cocaine; (c) he was improperly sentenced as a habitual offender; and (d) his sentence was so excessively lengthy, when viewed in its totality, as to constitute cruel and unusual punishment.

¶ 4. For reasons we will discuss, we find the issues raised by Wright to be without merit and we affirm his convictions and resulting sentence.

I.

Facts

¶ 5. The State presented evidence showing that Wright had sold a substance represented to be cocaine to an undercover cooperating individual. Subsequently, when Wright was arrested at his residence, a bottle containing a substance resembling crack cocaine was discovered hidden under the sink in the kitchen. These two circumstances led to the two count indictment previously described in this opinion.

II.

Defective Indictment

¶ 6. For the first time on appeal, Wright attacks the validity of the indictment on the ground that there is no basis to determine, on the face of the indictment, whether the cocaine mentioned is, or is not, the same quantity of illegal drug. This, he contends, raises issues of double jeopardy since it has been previously established by case law that a person cannot be charged both with possession of an illicit drug and a subsequent sale of that same drug. Wright relies on the case of Laughter v. State to support his argument. Laughter v. State, 241 So.2d 641 (Miss.1970). According to Wright, Laughter stands for the proposition that, in order to sell a substance, one must necessarily possess it and, thus, possession is a lesser-included-offense of sale. Therefore, since possession contains all of the elements of the greater crime, it would be a double jeopardy violation to punish him twice for what was but a single offense. Wright further contends, without citation to authority, that it must be capable of determination from the face of the indictment, rather than from the underlying facts, whether he has been improperly charged with both the possession of and sale of the same quantity of substance.

¶ 7. We find Wright’s argument unpersuasive. It is not necessary, by any authority discovered by this Court, for an indictment to so specifically identify the particular quantity of narcotic by language in the indictment that it could, by those descriptive terms and nothing else, be distinguished from any other quantity of the same type of narcotic. As a practical matter, based on the fungible nature of such materials, it would be essentially impossible to so exactly describe a particular quantity of crack cocaine by written narrative as to make it possible to match an actual quantity of the drug with the description. Rather, a claim of double jeopardy must be evaluated based on the underlying factual evidence relied upon by the State to support the two distinct charges. Such an exercise is properly the subject of a fact-finding inquiry rather than an analysis of the certainty with which the indictment identifies the narcotic substance in question. The Laughter decision, which dealt with marijuana, an equally fungible substance, goes on to state as follows:

[w]e hasten to point out that the one transaction principle does not apply when it is shown that a defendant had in his possession marijuana ... either before or after the sale.... Likewise, had appellant procured additional marijuana other than that sold the agent and retained possession he could properly be charged, and convicted for the possession of that marijuana and the sale of the marijuana to the agent.

Id. It is plain that such issues are matters of fact, subject to proof, that must be affirmatively asserted by the defendant and proven to the fact-finder’s satisfaction rather than somehow pled in the indictment. That Wright would have been unable to produce the necessary proof to establish a “one-transaction” double jeopardy claim under Laughter is evident since, according to unrebutted evidence in the record, the second quantity of narcotic substance was discovered to be in his possession at a time after the confidential informant had completed his controlled “buy” and turned that quantity of crack cocaine over to law enforcement authorities.

¶ 8. We find Wright’s contention on this issue to be without merit.

III.

Denial of Continuance

¶ 9. Apparently during the original trial, Wright’s defense counsel became convinced that there may have been some malfunction in the equipment used by the State Crime Laboratory to test a substance for the presence of cocaine. On that basis, he filed for a continuance for sufficient time to allow him to retain an expert witness to investigate and possibly provide information helpful in impeaching the probative value of the crime lab employee’s testimony. The trial court denied the continuance motion on the ground that the defendant should have retained such an expert earlier in the trial preparation phase if he desired to explore such matters. Instead of a continuance, the court ordered that the State make available such information as was available from crime lab officials regarding issues of concern to Wright regarding the lab’s testing equipment. In response, defense counsel was presented with a substantial amount of documentation on the Saturday before the re-trial commenced on Monday.

¶ 10. Without further objection, Wright announced that he was ready for trial on Monday. Now, on appeal, Wright contends that the information furnished him was not responsive to what he had asked for and what the trial court had ordered to be produced and that, in all events, it was produced too late in the day for him to make effective use of it. He thus contends that he was rushed into trial without adequate opportunity to prepare his defense in violation of his due process rights.

¶ 11. We find that these issues were not properly preserved for appellate review. The principal duty of an appellate court is to correct errors committed by the trial court in the course of conducting a proceeding. Cobb v. State, 734 So.2d 182(¶ 10) (Miss.Ct.App.1999). The manner in which this must be accomplished is that the aggrieved party must timely raise the issue with the trial court when the problem first presents itself so that,-if possible, the court may realize its error and take corrective measures that would prevent the necessity of a retrial. Id. When a party fails to raise an issue in a proper and timely manner at the trial level, any subsequent right to complain on appeal is, as a general proposition, lost. Miss.Code Ann. § 99-39-21 (Rev.2000). After receiving a large quantity of materials that the trial court had ordered to be furnished in lieu of granting Wright’s continuance motion, Wright appeared on the morning of trial and announced that he was ready for trial. Defense counsel offered no contention that the materials produced had not resolved the matter of his previous request for continuance or that the materials were not responsive to the court’s order. In that situation, we find any subsequent right to complain on either basis to have been waived and, for that reason, we find that Wright’s contention that he was improperly restricted in his ability to attack the State’s proof concerning the chemical makeup of the substances obtained from him to be proeedurally barred.

IV.

Habitual Offender Status

¶ 12. Wright complains that he was improperly sentenced as a habitual offender because the State’s proof on the issue was insufficient as a matter of law. Wright seizes on a statement by the prosecution during the sentencing hearing as follows, ‘Tour Honor, I would proffer Indictment 8534 and 8518 as State’s Exhibit 1.” Wright argues that proof of indictment is not proof of conviction. While Wright’s argument may have merit as an abstract proposition, the record shows that the State’s proffer, which was subsequently received into evidence and is now in the record before us, contained, according to a notation in the record, the following:

STATE’S COLLECTIVE EXHIBIT S-1, INDICTMENT, JUDGMENT & CRIMINAL DISPOSITION IN CAUSE NO. 8534; AND INDICTMENT, JUDGMENT, & CRIMINAL DISPOSITION IN CAUSE NO. 8518, WAS RECEIVED INTO EVIDENCE AND IS CONTAINED SEPARATE AND APART HEREFROM.

¶ 13. The documents themselves are before this Court, being contained in the official exhibit folder of the record. Wright’s contention on this score is without merit.

V.

Cruel and Unusual Punishment

¶ 14. Wright contends that his sentence of sixty years on Count I and thirty-two years on Count II, with the sentences to run consecutively, amounts to a life sentence and is excessive on its face in the absence of some explanation by the trial court as to any specific reasons for such a lengthy sentence. The record, including proof of Wright’s prior criminal convictions, indicated a persistent effort on Wright’s part to traffic in illegal narcotics. The Legislature, in an attempt to combat the spread of drug use and to keep repeat offenders out of circulation for extended periods of time, has devised a system of punishment that includes lengthy incarceration for those individuals who repeatedly violate the state’s drug laws. Wright fits plainly within that category since all of his convictions shown in the record relate to narcotic possession or narcotic trafficking. The sentences imposed are within the limits of those set out by the Legislature and, under the circumstances of this case, we do not conclude that they appear so unreasonably harsh as to invoke constitutional considerations of cruel and unusual punishment. We, therefore, find Wright’s contentions on this issue to be without merit.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF COUNT I, SALE OF A CONTROLLED SUBSTANCE, AND ENHANCED SENTENCE OF SIXTY YEARS; AND COUNT II, POSSESSION OF A CONTROLLED SUBSTANCE, AND ENHANCED SENTENCE OF THIRTY-TWO YEARS TO RUN CONSECUTIVELY WITH THE SENTENCE IN COUNT I AND TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED AND SENTENCES SHALL NOT BE REDUCED OR SUSPENDED NOR SHALL THE DEFENDANT BE ELIGIBLE FOR PAROLE, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: MCMILLIN, C. J„

text:
    Marty H. IVY, Appellant v. Tina L. IVY, Appellee.
    No. 2001-CA-01852-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2004.

      Harvey Lee Morrison, Joseph Joshua Stevens, West Point, attorneys for appellant.
    J. Tyson Graham, Columbus, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   MCMILLIN, C. J„

for the Court.

¶ 1. Marty H. Ivy and Tina L. Ivy agreed to dissolve their marriage of some twelve years through the provisions of Mississippi law allowing the chancellor to grant a divorce when the parties agree that irreconcilable differences have arisen between them. The parties, however, were unable to resolve all the necessary aspects relating to the dissolution of their marriage and, under authority of Section 93-5-2 of the Mississippi Code, entered into a written stipulation to submit these matters to the chancellor for resolution. Among the issues upon which the parties could not agree was the question of custody of their two minor children. The children, both females, were eight and six years old at the time of the hearing. The chancellor concluded that both parents were fit to have custody and awarded joint legal custody with primary physical custody being given to Mrs. Ivy. Mr. Ivy, believing that the chancellor had failed to properly evaluate the relevant factors affecting the physical custody determination, appealed the chancellor’s decision to this Court.

¶ 2. After a temporary remand of the matter for the limited purpose of permitting the chancellor to make more extensive findings of fact and conclusions of law regarding his custody determination, this Court permitted both parties to file supplemental briefs to address any matters raised in this addition to the record. After full consideration of the record made at trial, the chancellor’s expanded findings of fact and conclusions of law, and the briefs of the parties, we are unconvinced that the chancellor’s decision as to custody was manifestly in error or so contrary to the evidence as to constitute an abuse of the discretion afforded chancellors in such matters. For that reason, we affirm the chancellor’s decision.

I.

The Limits of Our Inquiry

¶ 3. Our scope of review of a chancellor’s determination of a custody question, by binding precedent, is limited to inquiry as to whether the chancellor has abused his discretion to reach a result that is manifestly wrong or clearly erroneous. Madden v. Rhodes, 626 So.2d 608, 616 (Miss.1993). A possible third reason to reverse is that the chancellor has applied an incorrect legal standard. Id. However, in this case we find this third ground to have no application since, upon receipt of the chancellor’s supplement findings of fact and conclusions of law, it is clear that the chancellor applied the correct legal standard by assessing the relevant factors concerning the children’s best interests, to include those considerations now imbedded in Mississippi jurisprudence as “the Al-bright factors.” Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The sole issue before us, therefore, is whether the chancellor was plainly in error in his evaluation of the evidence, to include how that evidence impacted on the Albright factors, that ultimately led him to conclude that the best interest of the children would be served by Mrs. Ivy maintaining their primary physical custody. We do not so find.

II.

Facts

¶ 4. Both parties presented evidence intended to relate to the issue of custody of the children. Mr. Ivy’s proof on the matter consisted primarily of evidence tending to show incidents of moral failings on the part of Mrs. Ivy and occurrences that tended to demonstrate her poor judgment in matters relating to her personal life and her effort — or lack of effort — to see to the children’s welfare. The chancellor’s failure to give proper weight to these alleged failings on the part of Mrs. Ivy is plainly at the heart of Mr. Ivy’s argument for reversal since his brief confines itself almost entirely to a recitation of the various incidents and patterns of behavior concerning Mrs. Ivy that would tend to cast her in a bad light.

¶ 5. The factors stressed by Mr. Ivy include evidence that Mrs. Ivy had engaged in a number of adulterous encounters and that the children had become at least indirectly exposed to her adulterous conduct. The proof on that score consisted of evidence that Mrs. Ivy would, on occasion, permit the children to accompany her and her male companions on social outings.

¶ 6. Testimony was also offered that the children had poor attendance records at school and were frequently tardy while in Mrs. Ivy’s care.

¶ 7. There was additional evidence tending to show that Mrs. Ivy was a poor financial manager in that the utilities at her home had been disconnected on multiple occasions for non-payment of the utility bills. There was also proof that Mrs. Ivy frequented a casino in Philadelphia with some regularity and engaged in gambling activities.

¶ 8. Mr. Ivy also presented evidence that Mrs. Ivy may have engaged in some questionable financial dealings that permitted her to improperly dissipate funds from a homeowners insurance claim that should have been applied to repair certain structural damage for which the claim was paid. Mr. Ivy contended that incidents such as this demonstrated that Mrs. Ivy set a poor example for the children and was, thus, a poor role model and a less-desirable custodial parent.

III.

Discussion

¶ 9. Decisions as to custody are not made for the purpose of punishing a parent for less-than-exemplary behavior. Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984). Rather, the underlying consideration in such matters must always be a determination as to what arrangement would be in the best interest of the children subject to the chancellor’s jurisdiction. Id. A decision as to custody does not necessarily carry with it an express or implied determination that the prospective non-custodial parent is unfit to act in that role. A custody award, if properly made, simply means that the chancellor, after considering a wide range of factors relating to the children’s welfare, has determined that, on overall balance, the anticipated arrangement best serves the interests of the children. Id. These factors, under precedent in this State, are generally understood to include an itemized list of considerations that have over time come to be known as “the Albright factors.” Albright, 437 So.2d at 1005.

¶ 10. In order to have a meaningful appellate review of the chancellor’s decision on custody matters, precedent requires that the chancellor make on-the-record findings of fact as to issues relating to custody as well as some analysis of how these facts affected the ultimate custodial decision. Case law suggests the need to utilize the framework of the enumerated Albright factors in making these findings and conclusions. Powell v. Ayars, 792 So.2d 240, 244 (¶¶ 8-10) (Miss.2001). As a practical matter, a part of that assessment involves the chancellor’s determinations as to witness credibility and what weight and worth to afford to various aspects of the testimony. In our limited review of such matters, we are not permitted to re-weigh the evidence to make our own independent determination of where we think the weight of the evidence lies. Id. at 243(¶ 6). Rather, we must give due deference to the fact that the chancellor heard the witnesses face-to-face and, as a result, was best positioned to make those difficult subjective decisions as to credibility and trustworthiness of the witnesses. We are obligated to affirm unless we are convinced that the chancellor was plainly in error. Pacheco v. Pacheco, 770 So.2d 1007, 1009(118) (Miss.Ct.App.2000).

¶ 11. After the temporary remand to afford the chancellor the opportunity to expand somewhat on his findings and analysis of the applicable law, this Court has had the opportunity to review his detailed discussion of the factors properly affecting a child custody determination and the chancellor’s views as to how the evidence affected his conclusions as to those factors. The chancellor touched on each of the Albright factors and offered a reasoned analysis as to each one. Only after doing so did he reach the conclusion that, on balance, the weight of the evidence tended to favor a custody award to Mrs. Ivy. In very brief format, we summarize the chancellor’s conclusions as to the various relevant considerations as set out in Albright.

(a) The chancellor combined the factors of age, sex and health of the children and found those factors, including the fact that the children were in apparent good health, to favor neither parent.

(b) The chancellor found that continuity of care prior to the separation favored Mrs. Ivy since she had been the primary caregiver while Mr. Ivy worked to earn money for family finances. As to this factor, even though Mr. Ivy’s willingness to work long hours to assist the family financially, it is important to remember that custody determinations are not intended to reward or punish either parent, but those determinations must be made on factors relating to the children’s best interests. Tucker, 453 So.2d at 1297.

(c) The chancellor found that Mrs. Ivy’s parenting skills, based on the fact that she had served as the primary caregiver, favored her. Mr. Ivy’s countering argument that the chancellor was in error in this finding was based primarily on proof of incidents involving alleged neglect of the children while Mrs. Ivy pursued her gambling activities and relationships with men other than her husband. The chancellor, as to that consideration, concluded that the evidence was not enough to demonstrate Mrs. Ivy’s unfitness as a custodial parent, but was simply a factor to consider in view of the fact that “having less than desirable character and inferior moral traits” are often considerations with which the chancellor must deal. The chancellor found that Mr. Ivy’s history also provided indications that he had devoted substantial time to activities other than his parenting responsibilities and concluded that this provided a counterbalance to the evidence of Mrs. Ivy’s behavior.

(d) The chancellor commented on the fact that both parents now sincerely exhibited a willingness to be the primary caregiver, but gave some preference to Mrs. Ivy on this factor based on the finding that she had demonstrated her willingness to act in that role by actively doing so for a long period of time prior to the break-up of the marriage.

(e) The chancellor concluded that employment factors favored Mrs. Ivy because the proof showed that Mr. Ivy worked extended hours that would prevent him from devoting time to the children. Again, it must be noted that, though Mr. Ivy’s long hours at work may be laudatory in terms of demonstrating his desire to provide financial support for the children, an adjudication of custody in his favor would not be an appropriate means of rewarding such behavior.

(f) The chancellor was unable to identify any pertinent health factors of either parent that would affect the custodial decision.

(g) The chancellor was convinced that there were strong emotional ties between the children and both parents; however, he found that this factor favored Mrs. Ivy to some degree because of the emotional link between her and the children that had been established through her years of acting as them primary caregiver.

(h) The issue of the moral fitness of the parents was found to be a neutral factor after the chancellor concluded that both had engaged in activities that were less than praiseworthy.

(i) The chancellor gave little weight to the absences and tardies of the children in school, based on the finding that the children’s school performance had improved after the separation of the parties.

(j) Because of the age of the children, their preference as to custody was properly not considered by the chancellor.

(k) Noting that Mr. Ivy had been living with his parents, the chancellor concluded that there was nothing regarding stability in the home environment that would favor either parent. Neither did he find anything remarkable in the existing employment of either parent that would affect a custody determination beyond those factors earlier considered and discussed previously in this opinion.

(l) The chancellor finally concluded that neither party had advanced any other factors beyond the specifically-identified considerations in Albright that might be seen as affecting the custody determination.

¶ 12. There is evidence in the record to support these findings and conclusions by the chancellor. Certainly, as Mr. Ivy contends, there was also evidence presented that tended to weigh in favor of his ability to be the preferred caregiver for the children. This is the typical situation in any contested custody proceeding, and it is the chancellor’s difficult duty to weigh the evidence, make critical assessments of witness credibility, and then reach a determination felt to best serve the interest of the children. It would appear that this is what transpired in this situation. As we have already observed, we are not charged to independently re-weigh the evidence and reach our own independent conclusion as to which parent we think would be the better custodial parent. Based on our limited scope of review, we are unable to find an abuse of discretion or other reversible error in the chancellor’s decision as to custody.

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

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


author: IRVING, J.,

text:
    Dietrich TAYLOR, Appellant v. MISSISSIPPI BOARD OF NURSING, Appellee.
    No. 2003-CA-00187-COA.
    Court of Appeals of Mississippi.
    Jan. 13, 2004.

      James D. Kopernak, attorney for appellant.
    Roy Andre’ Perkins, Starkville, attorney for appellee.
    Before KING, P.J., IRVING, and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Dietrich Taylor appeals from a judgment of the Chancery Court of Hinds County dismissing his appeal of an adverse decision of the Mississippi Board of Nursing (Board) finding that he had violated the Mississippi Nursing Practice Act. The chancery court, pursuant to a motion to dismiss filed by the Board, dismissed Taylor’s appeal for failure to file in the county of his residence.

¶ 2. The sole issue presented in this appeal is whether the Hinds County Chancery Court erred in dismissing the appeal because it was filed in the improper venue. We determine that error occurred; consequently, we reverse and remand the case to the Hinds County Chancery Court with directions to transfer the case to Madison County, the county of Taylor’s residence.

FACTS

¶ 3. Based upon conduct occurring in Hinds County, Mississippi, the Board filed a complaint against Dietrich Taylor, a licensed registered nurse. The complaint charged Taylor with a two-count violation of the Mississippi Nursing Practice Law.

¶ 4. Following an evidentiary hearing on April 3, 2002, a three-member panel of the Board sustained both charges against Taylor and afterwards revoked his license. Taylor appealed the decision of the panel to the full Board. By its final order, the full Board affirmed the panel’s decision that Taylor was guilty of violating two provisions of the Mississippi Nursing Practice Act but overturned the revocation of his license. However, the Board placed Taylor on a restricted license for a minimum of one year.

¶ 5. Feeling aggrieved by the Board’s decision, Taylor filed an appeal to the Hinds County Chancery Court on November 12, 2002. In response to Taylor’s appeal, the Board filed a motion to dismiss which asserted (1) Taylor’s notice of appeal was not timely filed and (2) Taylor failed to file his appeal in the appropriate chancery court (i.e., Madison County Chancery Court), the chancery court of the county wherein he resided, pursuant to Mississippi Code Annotated section 73-15-31(10). The Hinds County Chancery Court found that the notice was timely filed but granted the Board’s motion to dismiss because of Taylor’s failure to file in the county of his residence. Aggrieved by the chancery court’s decision, Taylor filed a timely appeal.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. Mississippi Code Annotated section 73-15-31(10), which covers appeals from disciplinary decisions by the Board, provides:

The right to appeal from the action of the board in affirming the denial, revocation, suspension or refusal to renew any license issued by the board, or revoking or suspending any privilege to practice, or fining or otherwise disciplining of any person practicing as a registered nurse or a licensed practical nurse, is granted. Such appeal shall be to the chancery court of the county of the residence of the licensee on the record made, including a verbatim transcript of the testimony at the hearing. The appeal must be taken within thirty (30) days after notice of the action of the board in denying, revoking, suspending or refusing to renew the license, or revoking or suspending the privilege to practice, or fining or otherwise disciplining the person.

¶7. The parties concede that Taylor does in fact reside in Madison County, but Taylor argues that the issue of the proper county in which his appeal is required to be heard is a question of venue and not jurisdiction. He contends that the only available remedy for the Board was to have the appeal transferred to the Chancery Court of Madison County rather than dismissed. We agree.

¶ 8. As support for his argument, Taylor points to Underwood v. McRae’s, 811 So.2d 400 (Miss.Ct.App.2001) as applicable caselaw. In Underwood, the claimant appealed from a decision of the Workers’ Compensation Commission denying benefits. Id. at 401. Her appeal, pursuant to Mississippi Code Annotated section 71-3-51, was filed in the Circuit Court of Hinds County instead of the Circuit Court of Madison County, the circuit court of the county in which the injury occurred. Id. After more than thirty days had passed from the entry of the Commission’s order denying Underwood’s claim, McRae’s filed a motion with the Circuit Court of Hinds County to dismiss the appeal for lack of jurisdiction. Id. The Circuit Court of Hinds County granted the motion, and claimant appealed. Id. Relying upon Leake County Cooperative v. Barrett, 226 So.2d 608 (Miss.1969), this Court held that the claimant’s appeal to a circuit court of a county other than the county where the injury occurred was not subject to dismissal for lack of jurisdiction. Underwood, 811 So.2d at 402(¶ 7). This Court further held that, at most, the circuit court should have treated the employer’s jurisdictional challenge as an objection to venue and transferred the appeal to the proper circuit court. Id.

¶ 9. In Leake County Cooperative v. Barrett, 226 So.2d 608, 615 (Miss.1969), the Mississippi Supreme Court held that an appeal of a decision of the Mississippi Workers’ Compensation Commission to the circuit court of a county other than the one where the injury occurred did not raise an issue of that court’s jurisdiction over the dispute. The court applied the principle that, unless the action is a local one, bringing an action before the wrong circuit court raises only a question of venue, and venue problems do not defeat the underlying authority of the court to hear and determine the merits of the cause. Id. The court concluded that an aggrieved party’s sole remedy in such case was to seek a change of venue to the circuit court of the county where the injury occurred and that a failure to timely raise the question of proper venue resulted in a waiver, thereby vesting the court, though technically the “wrong” court, with full power to decide the matter on the merits. Id. at 616.

¶ 10. The Barrett court also explained the difference between jurisdiction and venue:

The distinction between ‘jurisdiction’ and ‘venue’ has been plainly established and has been frequently recognized. Jurisdiction connotes the power to decide a case on the merits, while venue connotes locality, the place where the suit should be heard. The word ‘venue,’ unless it is given jurisdictional effect by localizing the action, relates only to the place where, or the territory within which, either party may require the case to be tried, and unless it is a local action, the question of jurisdiction of subject matter is not involved. The mere existence of general rules of venue, whether at common law or statutory form, does not of itself affect the right of the court to hear and determine foreign causes.

Id. at 615.

¶ 11. It is clear from the language of Mississippi Code Annotated section 73-15-31 (Rev.2000), that all the chancery courts of this state have jurisdiction to determine appeals stemming from decisions of the Mississippi Board of Nurses. However, an appellant must file the appeal to the chancery court of the county of his residence. In the case at bar, the appeal was to the wrong county.

¶ 12. Rule 82(d) of the Mississippi Rules of Civil Procedure states:

Improper Venue. When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as though originally filed therein. The expenses of the transfer shall be borne by the plaintiff. The plaintiff shall have the right to select the court to which the action shall be transferred in the event the action might properly have been filed in more than one court.

¶ 13. The Hinds County Chancery Court erred in dismissing Taylor’s appeal. Therefore, we reinstate Taylor’s appeal and remand the case to the Chancery Court of Hinds County for entry of an order transferring the case to the Chancery Court of Madison County.

¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . The Mississippi Nurses Practice Law is codified as Mississippi Code Annotated section 73-15-1, et seq. The charges against Taylor were brought pursuant to sections 73-15-29(l)(c) and (e) which provide:
      (1) The board shall have power to revoke, suspend or refuse to renew any license issued by the board, or to revoke or suspend any privilege to practice, or to deny an application for a license, or to fine, place on probation and/or discipline a licensee, in any manner specified in this chapter, upon proof that such person:
      (c) Has negligently or willfully acted in a manner inconsistent with the health or safety of the persons under the licensee's care;
      * * * *
      (e) Has negligently or willfully practiced nursing in a manner that fails to meet generally accepted standards of such nursing practice.


text:
    Lonnie MASSEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-00746-COA.
    Court of Appeals of Mississippi.
    Jan. 13, 2004.

      Whitman D. Mounger, Greenwood, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Lonnie Massey was convicted by a jury in the Circuit Court of Leflore County of receiving stolen property and was sentenced to five years in the custody of the Mississippi Department of Corrections. Feeling aggrieved, Davis has appealed and asserts that (1) the trial court erred in overruling his objection to improper redirect examination by the State, (2) the trial court erred in overruling his motion for a mistrial following the state’s improper cross-examination of him, and (3) the trial court erred in refusing to grant a peremptory instruction, motion for a new trial, or JNOV.

¶ 2. Ascertaining no error, we affirm.

FACTS

¶3. On the morning of February 26, 2001, it was discovered that the Swiftown Post Office had been burglarized. Amongst those things taken were approximately $2,900 in stamps, a money order machine, thirty-three blank money orders, and forty dollars in cash.

¶4. Lonnie Massey was subsequently arrested and indicted for receiving property stolen in the post office burglary. He was found guilty, sentenced to five years in the custody of the Mississippi Department of Corrections and ordered to pay a $1,000 fine, $300 in attorney’s fees, and $250 in court costs.

¶ 5. Massey filed the usual post-trial motion which was denied, leading to this appeal.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Objection to Redirect Examination

¶ 6. Massey first argues that the trial court erred by overruling his objection to certain redirect examination conducted by the State. Specifically, Massey takes issue with the State’s redirect of Bradley Cram-er, a United States Postal Inspector, as being outside the scope of his own cross-examination of the same witness. The State counters that the trial court did not abuse its discretion in concluding that the State’s redirect of Cramer was pertaining to the same subject matter as that explored on cross-examination.

¶ 7. The line of questioning explored by Massey of Cramer during cross-examination was as follows:

Q: And there’s no — well, do you have any direct evidence of his having knowledge that these (money orders) were stolen?
A: I personally do not have any evidence. Just testimony or — not testimonies, but interview of other people.
Q: Do you have any information that Mr. Massey personally attempted to cash any money orders in Tennessee or Arkansas?
A: In which states, I’m sorry?
Q: Tennessee or Arkansas. That he personally attempted to cash money orders?
A: Not in those two states. No.
Q: You charged three other people in Mayfield, Kentucky who cashed the money orders?
A: Yes.
Q: And only months later did you decide to charge Mr. Massey with possession of stolen money orders?
A: That’s not true.

¶ 8. On redirect, the State conducted the following examination of Kramer:

The State: During your investigation of the money orders that turned up at the Indianola Post Office, did you discover that money order to have been one that was stolen in Swiftown?
Counsel for Massey: Improper re-direct. Objection, Your Honor.
The Court: From what I heard of the question, sustained.
The State: Your Honor, he even asked about the money orders that had popped up in different places to which the witness testified to Kentucky, Missouri, and—
The Court: Approach.
(The following bench conference was held:)
The Court: What are you intending to ask him about the money order that popped up at the Indianola Post Office?
The State: That it was stolen from the Swiftown Post Office. He brought it out in cross. I am on re-direct. You asked about money orders popping up in Kentucky.
Attorney for Massey: I didn’t ask about money orders in Indianola.
The Court: I am going to allow it.
The State: Thank you, Your Honor.
(The bench conference concluded.)
The State: Did you find stolen money orders that had been cashed in Indi-anola, Mississippi?
Kramer: Yes, I did.
The State: And who was that money order cashed by?
Kramer: A Xavier Dean.
The State: And the money order that Xavier Dean cashed at the Indianola Post Office was one of the stolen ones?
Kramer: Yes, it was.
The State: From the Swiftown Post Office.
Kramer: Yes, it was.
The State: Thank you.

According to Massey, the information elicited by the State during the re-direct examination of Cramer was damaging to Massey and deprived him of his Sixth Amendment right to fully confront a witness called against him and thereby deprived him of a fair trial.

¶ 9. We find no merit in Massey’s contentions. This Court wrote in Greer v. State, 755 So.2d 511, 516 (¶ 14) (Miss.Ct.App.1999), that trial courts have broad discretion in allowing or disallowing redirect examination of witnesses and when the defense attorney inquires into a subject on cross-examination of the State’s witness, the prosecutor on redirect is unquestionably entitled to elaborate on the matter. Manning v. State, 835 So.2d 94, 99-100 (¶ 15) (Miss.Ct.App.2002). “Also, we will not disturb a trial court’s ruling on matters pertaining to redirect examination unless there has been a clear abuse of discretion.” Conley v. State, 790 So.2d 773, 786 (¶ 36) (Miss.2001).

¶ 10. On his cross-examination of Cramer, Massey’s counsel inquired about various states where money orders, which had been stolen from the Swiftown Post Office, had been attempted to be cashed. This questioning brought into issue whether a casual connection existed between individuals who had attempted to cash these stolen money orders and Massey’s prior possession of money orders he admitted to maintaining. Since Manning’s counsel opened this inquiry, we cannot say that the State’s questioning on this issue was improper redirect under these circumstances, as the prosecution inquired as to where in Mississippi someone had attempted to cash stolen money orders. Accordingly, we do not find that the trial judge abused her discretion. This issue is without merit.

2. Motion for Mistrial

¶ 11. Massey next contends that the trial court erred when it overruled his motion for mistrial; He explains that the State improperly cross-examined him as a witness when it used prejudicial hearsay in an effort to impeach him. During the cross-examination of Massey by the State, the following exchange occurred:

The State: You know Joe Kemp?
Massey: Yes, ma'am.
The State: How is Joe Kemp related to this Keith Kemp.
Massey: That’s his brother.
The State: His brother. Did you know that Joe Kemp got arrested with two money orders up in Tennessee that he told the police that you gave to him.
Counsel for Massey: Objection, Your Honor.
The Court: Sustained. Sustained. And I’m going to ask the jury to disregard that statement as if it was never said.
Counsel for Massey: Your Honor, may we approach briefly?
(The following bench conference was held:)
Counsel for Massey: I believe the Court’s instruction to the jury was warranted, but I’m afraid this was very deliberate in nature. In my opinion, she is trying to elicit hearsay testimony and it’s most incriminating in nature and I am going to move for a mistrial, Your Honor.
The Court: What says the State?
The State: Your, Honor, I don’t think a mistrial is warranted in this. I asked him if he was aware of this fact. The only thing he could say was yes or no. And the defense counsel — I was very lenient when he testified to everything Keith Kemp told him and Jessie and everybody else. I want him to testify to what was said, and I did not accuse him. I asked him was he aware of it.
The Court: I’m going to deny the mistrial at this point, but I’m going to caution you, Mrs. Chiles.
The State: Yes, ma'am.
(The bench conference concluded.)

¶ 12. According to Massey, the remark made by the State was in the guise of a question to him and contained what amounted to hearsay evidence. He further explains that the State’s remark clearly was not intended to elicit a response but rather was intended to indicate guilty knowledge and impeach and prejudice him. Despite acknowledging the trial court’s instruction to the jury to disregard the State’s question and its cautioning of the State, Massey contends that the trial court’s instruction was not sufficient to cure the damage done by the State, and therefore, its failure to grant a mistrial after his objection was error.

¶ 13. The State counters that the trial court’s admonishment to the jury was sufficient to stem any prejudice flowing from the prosecutor’s unanswered question. It further asserts that the trial court was in the best position to make this determination, and consequently, its ruling should not be disturbed.

¶ 14. Our standard of review of the trial court’s decision denying a mistrial is abuse of discretion:

Case law unequivocally holds that the trial judge is in the best position for determining the prejudicial effect of an objectionable remark. The judge is provided considerable discretion to determine whether the remark is so prejudicial that a mistrial should be declared. Where serious and irreparable damage has not resulted, the judge should admonish the jury then and there to disregard the impropriety.

Coho Resources, Inc. v. McCarthy, 829 So.2d 1, 18(¶ 50) (Miss.2002) (citing Roundtree v. State, 568 So.2d 1173, 1177-78 (Miss.1990)). The rule is well established in the jurisprudence of our state that the jury is presumed to follow an admonition of the trial court to disregard objectionable evidence and that the court’s admonition is usually deemed sufficient to remove any prejudicial effect from the minds of the jurors. Walker v. State, 671 So.2d 581, 621-22 (Miss.1995).

¶ 15. We find that any harm done, as a result of the question that was asked, was minimal. Upon Massey’s objection to the State’s questioning, the trial judge issued a corrective instruction to the jurors to disregard the prosecutor’s question. We presume that the jury followed the admonition of the trial court and further find that the improper comment was cured by the trial court’s instruction to the jury. Moreover, the State’s question did not explicitly indicate or otherwise disclose any information about whether Massey possessed guilty knowledge that the money orders had been stolen. Therefore, the trial court did not abuse its discretion in denying Massey’s motion for a mistrial, as it was in the best position to make this assessment.

3. Denial of Directed Verdict, Peremptory Instruction, and JNOV

¶ 16. Massey argues that the State’s case was insufficient to survive his motion for a directed verdict of acquittal made at the close of the State’s case and that the trial court should have granted his requested peremptory instruction. He further contends that the trial court committed error by denying his motion for new trial or for a judgment notwithstanding the verdict.

¶ 17. The standard of review for a denial of a directed verdict, peremptory instruction and a JNOV are identical. Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003) (citing Coleman v. State, 697 So.2d 777, 787 (Miss.1997)). In McClain v. State, 625 So.2d 774, 778 (Miss.1993), our supreme court held that a motion for JNOV, motion for directed verdict, and a request for peremptory instruction challenge the legal sufficiency of the evidence. “Since each requires consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court. This occurred when the circuit court overruled [the] motion for JNOV.” Id. at 778 (citing Wetz v. State, 503 So.2d 803, 807-08 (Miss.1987)). On the issue of legal sufficiency, reversal can only occur when evidence of one or more of the elements of the charged offense is such that “reasonable and fair-minded jurors could only find the accused not guilty.” Hawthorne, 835 So.2d at 21(¶ 31) (quoting Wetz v. State, 503 So.2d at 808).

¶ 18. Massey was convicted of receiving stolen property pursuant to Mississippi Code Annotated section 97-17-70 (Rev. 2000):

(1) A person commits the crime of receiving stolen property if he intentionally possesses, receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is possessed, received, retained or disposed of with intent to restore it to the owner.

The State had to prove all elements of this crime beyond a reasonable doubt as it related to the actions of Massey.

¶ 19. At trial, Massey stated that on Saturday, February 24, 2001, he was working at Carl Engle’s industrial shop in Swif-town. While at work that afternoon, he explained that he hurt his right thumb and left knee when he fell at work. After bandaging his thumb, he stated that he went to the house of Paul Pittman, a neighbor, to drink. He said he later saw his friend Keith Kemp who was having car trouble. After helping Kemp fix his car, Massey returned to Pittman’s house, where Kemp soon after returned. He stated that a black male named Jesse, who was riding with Kemp, inquired as to where he could cash a money order. Massey proclaimed he told Jesse that he did not know of any place that would cash the money order so late at night. Thereafter, Jesse and Kemp offered Massey five money orders for $200 each in exchange for $200 cash until the men returned to Swif-town that upcoming Sunday. After Kemp guaranteed their return with Massey’s money, Massey stated that he accepted the money orders. Massey explains that the next day, after receiving several comments from people affirming that he should go see a doctor about his thumb, he made several attempts to cash one of the money orders. Massey stated that he did not think Kemp would mind if he cashed a money order to get his money back. After several unsuccessful attempts to cash one of the money orders at stores, he said he attempted to sell one of the money orders to the sister of Lavon Ginn; however, she did not buy the money order because the date was wrong on it. That Monday, Massey stated that he set out for Tennessee to find Kemp to get his money. On his way, he affirmed that he picked up a hitchhiker just east of Memphis, drove to Jackson, Tennessee and dropped the hitchhiker off. At that time, Massey revealed that he asked the hitchhiker to get rid of the money orders for him and that the hitchhiker asked if he could keep one. Massey stated he told him that he did not care. From there, Massey explained that he found Kemp and retrieved some of his money.

¶ 20. Despite Massey’s account of what transpired on the weekend of February 24, 2001, other witnesses portrayed a different series of events that occurred that weekend. Henry McGlawn, the postmaster of the Swiftown Post Office, testified that when he arrived at work the morning of Monday, February 26, 2001, he found the office had been burglarized. He also affirmed that a stamp stock box, a money order imprinting machine, and thirty-three blank money orders were missing.

¶ 21. Timothy Washington testified that at approximately 7:30 a.m. on Sunday morning of February 25, he was sitting in front of a Terry Shaver’s house in his car. Washington explained that while he was there he saw Lonnie Massey walking down the road. According to him, Massey stopped and asked Washington for a ride to Moorhead. Washington testified that he told Massey he had something else to do but agreed to take him to the shop where Massey worked. He stated that while riding in his car, Massey told Washington that he had $6,000 worth of money orders, opened an envelope that he possessed, and showcased fifteen or twenty or more $200 money orders. He also testified that Massey offered him one of the $200 money orders in exchange for a ride to Moorhead.

¶ 22. Lavon Ginn a co-worker of Massey, testified that Massey drove up to La-voris mother’s house at about noon that same Sunday. Massey asked him if he knew where he could cash a money order. Lavon stated that he had advised Massey to wait till Monday, but that Massey replied that he needed the cash immediately so that he could pay for medical attention to his injured hand. Lavon testified that he asked Massey why did he not just go to the doctor immediately but stated that Massey was adamant about going to a doctor the next day in Tennessee. Lavon explained that he drove Massey to a Su-perValue store in Belzoni but that Massey was unsuccessful in getting the money order cashed there. Lavon testified that they then returned to Swiftown where Massey asked Lavon’s sister, Martha Ramsey, to purchase the money order. He explained that his sister refused to purchase the money order from Massey after reviewing it. Lavon then stated that he drove Massey to Moorhead, where Massey offered someone named Dean a $200 money order in exchange for $80 to $100. Lavon affirmed that the two men came to an agreement and the exchange was made. He then testified that he brought Massey back to Swiftown.

¶23. Martha Ramsey, Lavon’s sister, corroborated Ginn’s testimony concerning Massey’s offer of the money order. She testified that Massey offered to sell her a $200 money order for $150, but that she declined his offer because the date on it was not correct.

¶ 24. Matthew Ramsey testified that at approximately 10:30 p.m. on Saturday, February 24, 2001, Massey telephoned him and asked him to go over and get Timmy (Washington) to take him to Swiftown. Ramsey stated that Massey offered him $200 in cash or a money order in exchange of inducing Washington to give Massey a ride.

¶ 25. Carl Engle, Massey’s employer at the time, testified that he had gone out of town for Mardi Gras and returned on Ash Wednesday, February 28, to find his company truck missing. He explained that he discovered that Massey had left a number where he could be reached on Engle’s answering machine, that he called the number and spoke to Massey, and that he asked Massey where he was and why he had taken the truck. Engle stated that Massey explained he could not get help where he was and that he had hurt himself. He also explained that Massey told him where he could pick up the truck. After coming into contact and talking with the postmaster in Swiftown, Engle testified that he became aware of an investigation that possibly involved a truck matching a description of his truck. He stated he soon after gave the postmaster and an investigating agent the information Massey had given him regarding the location of his truck in Tennessee. Engle also affirmed that he thereafter met with a postal inspector in Tennessee before retrieving his truck.

¶ 26. Bradley Cramer, a postal inspector for the United States Postal Inspection Services testified that he had investigated the burglary of the Swiftown Post Office. He stated that several items were missing including thirty-three blank money orders. He explained that his investigation of the Swiftown post office burglary lead to the arrest of an individual who had attempted to cash one of these money orders in Jackson, Tennessee. Cramer explained that he reviewed the investigative memorandum of the detainee, discovered that the detainee had described a white flat bed truck he had gotten a ride in, and found out from the postmaster that the truck belonged to a Carl Engle. According to Cramer, this series of discoveries led him to interview Massey, who he found was in possession of the truck. Cramer obtained a statement from Massey concerning his possession of alleged stolen money orders. In his statement, Massey made no mention of a friend named Keith Kemp or Massey’s efforts to help him. Cramer acknowledged that several arrests had been made of individuals who had attempted to cash stolen money orders in Tennessee and Kentucky and that these money orders had originated from the burglary of the Swiftown post office. He finally stated that each of the detainees indicated that they knew Massey.

¶ 27. We find that more than sufficient evidence existed to support Massey’s conviction of receiving stolen property. In such a criminal prosecution, it is the jury’s function, after hearing all evidence and receiving applicable law and instructions, to accept the testimony of some witnesses and reject that of others, as well as to accept in part and reject in part the evidence on behalf of the state or on behalf of the accused. Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). In other words, the credibility of witnesses is not for the reviewing court. Id. We find that the jury accomplished its role and refuse to disturb its verdict.

I. Motion for New Trial

1128. A motion for new trial challenges the weight of the evidence. Hawthorne, 835 So.2d at 22 (¶ 32) (citing Sheffield v. State, 749 So.2d 123, 127 (Miss.1999)). A reversal is warranted only if the trial court abused its discretion in denying the motion. Id. (citing Gleeton v. State, 716 So.2d 1083 (Miss.1998)). The appellate court has limited authority to interfere with a jury’s verdict. Id. The court looks at all the evidence in the light most consistent with the jury’s verdict. Id. A new trial will not be granted unless the verdict is so contrary to the overwhelming weight of the evidence that an unconscionable injustice would occur by allowing the verdict to stand. Id. at (¶ 33) (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)).

¶29. Considering the evidence previously described in this opinion, we are not persuaded that the verdict is so contrary to the overwhelming weight of the evidence that allowing it to stand would sanction an unconscionable injustice. Consequently, we affirm the trial judge’s denial of Massey’s motion for a new trial.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY OF CONVICTION OF POSSESSION OF STOLEN PROPERTY AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $1,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.

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

      . The serial numbers of the blank money orders stolen from the Swiftown post office were 837672867 through 837672899.