author: MYERS, J.,

text:
    Lajuane PORTER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01817-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2004.
    Rehearing Denied March 30, 2004.

      David G. Hill, Oxford, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorneys for appellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. Lajuane Porter was found guilty in the Circuit Court of Marshall County of aggravated assault. He was sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction and sentence, Porter appeals and raises the following issues.

ISSUES PRESENTED

I. Did the trial court err by allowing the State to admit evidence of Porter’s prior conviction of simple assault?
II. Did the trial court err by allowing the State to use Porter’s prior conviction in violation of Uniform Rules of Circuit and County Court Practice 9.04?
III. Did the trial court err by allowing the State to admit evidence of Porter’s character as to his temper and his participation in anger management classes?

STATEMENT OF FACTS

¶ 2. It is undisputed that on June 30, 2001, Lajuane Porter shot Kirby Dajuane Cummings as Cummings approached Porter in the driveway at the home of a mutual friend, Kendrick Rankin. Two disputed factual issues arose during Porter’s trial. One disputed fact was the previous animosity that existed prior to the shooting between Cummings and Porter. Cummings denied the animosity while Porter testified to several prior threats by Cummings.

¶ 3. The second disputed fact involved Porter’s defense. Porter testified that he shot Cummings in self-defense, believing that Cummings was reaching in his pocket to pull out a gun. Cummings testified that he was not carrying a gun at the time of the shooting. Other than the two factual disputes, the remainder of the factual scenario was uneontested.

¶ 4. Cummings stated that he stopped by the home of Kendrick Rankin to get some money that Cummings loaned to Rankin. Cummings testified that he and Rankin were outside the house in the driveway talking to each other when he heard a “gun pop or something.” Cummings stated that he turned around and Porter was pointing a gun in the direction of him and Rankin. Cummings stated that Porter told him that he heard Cummings had called him a “player hater.” Cummings replied that he had not called Porter a “player hater.” Cummings stated that Porter said he did not like Cummings anyway and started shooting.

¶ 5. Relying on the theory of self-defense, Porter testified that he and Cummings were not on good terms at the time of the shooting. Porter stated that the two had never been friends and that Cummings had been threatening him for several months. Porter testified that Cummings once told him at a gas station that he was “going to peel Porter’s cap,” meaning cause harm to Porter. Porter testified that he was already at Rankin’s home sitting in his car listening to music when Cummings arrived. Both Cummings and Porter stated that Porter’s car was parked in front of Cummings’ truck in the driveway. Porter testified that he had a .45 caliber handgun in his possession while he was at Rankin’s house. Porter stated that he carried the gun for protection. Porter stated that he saw Cummings pull into Rankin’s driveway and start talking to Rankin. Porter stated that he again heard Cummings say that he was “going to peel Porter’s cap.” Porter stated that after Rankin and Cummings whispered and laughed awhile, Cummings approached him and motioned like he was pulling something from his waistband. Believing that Cummings was reaching for a weapon, Porter shot Cummings three times and left the scene.

¶6. After hearing all the testimony in the case, the jury found Porter guilty of aggravated assault in violation of Mississippi Code Annotated Section 97-3-7(2)(b). Porter was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. Porter now appeals his conviction and sentence and seeks reversal from this Court. Porter raises numerous evidentiary issues which this Court consolidates in order to better address each issue.

LEGAL ANALYSIS

I. DID THE TRIAL COURT ERR BY ALLOWING THE STATE TO INTRODUCE EVIDENCE OF PORTER’S PRIOR CONVICTION OF SIMPLE ASSAULT?

¶ 7. Porter raises several issues concerning the admission of his prior criminal conviction for simple assault/domestic violence. Porter asserts that the trial court erred by allowing the State to introduce, over defense counsel’s objection, Porter’s prior criminal conviction for simple assault/domestic violence for the purpose of impeachment. Porter argues that Rule 609(a)(1)(B) of the Mississippi Rules of Evidence prohibits the introduction of such evidence. Porter also asserts that the trial court abused its discretion by ruling that the probative value of the prior crime substantially outweighed the prejudice to Porter under Rule 403 and therefore permitted the State to introduce the prior crime to impeach Porter.

A. Admission of the Prior Conviction under 609(a)(1)(B)

¶ 8. The admissibility of evidence is within the discretion of the trial court, and absent abuse of that discretion, the trial court’s decision on the admissibility of evidence will not be disturbed on appeal. McCoy v. State, 820 So.2d 25, 30 (¶ 15) (Miss.Ct.App.2002). When the trial court stays within the parameters of the Rules of Evidence, the decision to exclude or admit evidence will be afforded a high degree of deference. Id. Also, “the admission or exclusion of evidence must result in prejudice or harm, if a cause is to be reversed on that account.” Id.

¶ 9. Porter argues in his appellate brief that Rule 609(a)(1)(B) precludes the State from introducing Porter’s prior conviction for the limited purpose of impeachment. Porter asserts that his prior conviction does not meet the threshold requirement of Rule 609(a)(1)(B) which requires that the crime be “punishable by death or imprisonment in excess of one year.” M.R.E. 609(a)(1)(A). Porter’s prior offense was simple assault, and according to the applicable statute, the punishment was a “fine of not more than five hundred dollars or by imprisonment in the county jail for not more than six months, or both.” Miss.Code. Ann. § 97-3-7(1)(c) (Rev.2000).

¶ 10. As the State properly indicates, the prior conviction of Porter was admitted before Porter testified. The following colloquy occurred on cross-examination of Officer Novay, a witness for the State, who investigated the shooting:

Defense Counsel: He [Porter] never had any run-ins with the law, has he?
Officer Novay: I did not know him [Porter] prior to that night.
Counsel: He’s never been arrested by the Byhalia P.D., has he, that you knew about?
Novay: That I knew about or that I know about?
Counsel: That you knew at that time.
Novay: At that time, no.

¶ 11. The following occurred on re-direct of Officer Novay by the district attorney.

District Attorney: Now, he [defense counsel] asked you about Mr. Porter, any problems he’s had with law enforcement. Let me show you this — this Arrest Report which indicates — is this a copy of Lajuane Porter’s Arrest Report? Officer Novay: For that particular night, yes, sir.
District Attorney: This has got him at age 29, 5-3, 145. Did you check for prior history on him?
Novay: Yes, I did.
District Attorney: Okay. What’d you find?
Novay: Simple Assault dated August of '99.
District Attorney: August 28, '99?
Novay: Yes, sir.
District Attorney: He had a simple assault charge?
Novay: Yes, sir.

¶ 12. While Porter is correct in his statement of Rule 609(a)(1)(B), the first instance of Porter’s prior conviction being admitted was during re-direct of Officer Novay. The conviction was not first used to impeach which makes Rule 609 inapplicable in that situation. Porter’s attorney asked Novay about Porter’s prior criminal activity on cross-examination. Porter now complains about the actions taken by the district attorney to rebut the evidence presented on cross-examination.

¶ 13. Even if the evidence offered is otherwise inadmissible, one party may open the door to its admission. Crenshaw v. State, 520 So.2d 131, 133 (Miss. 1988); Washington v. State, 726 So.2d 209, 216 (¶ 34) (Miss.Ct.App.1998). It has been previously stated by our courts, “if a defendant opens the door to line of testimony, ordinarily he may not complain about the prosecutor’s decision to accept the benevolent invitation to cross the threshold.” Kolberg v. State, 829 So.2d 29, 56 (¶ 56) (Miss.2002) (citing Randall v. State, 806 So.2d 185, 195 (Miss.2001)). Once Porter’s attorney opened the door by asking Officer Novay whether Porter had been arrested prior to his trial on aggravated assault, the State was free to rebut that with proof of Porter’s prior conviction for simple assault. We conclude that the line of questioning by Porter’s attorney on cross-examination of Officer Novay opened that door for the State’s questions on re-direct.

¶ 14. Porter is also procedurally barred from raising this issue on appeal because no objection was made by defense counsel when the State asked about the prior conviction on re-direct of Novay. It was only later the next day that Porter’s trial counsel made an objection to the admission of evidence that had already been presented by oral testimony. Counsel must make a contemporaneous objection when a witness gives objectionable testimony so that the trial judge has the opportunity to correct the error and properly instruct the jury. Alford v. State, 760 So.2d 48, 52 (¶ 10) (Miss.Ct.App.2000). Failure to raise a timely objection constitutes waiver of the issue on appeal. Id. This issue is without merit.

B. Balancing Test of Rule 609(a)(1)(B)

¶ 15. Evidence of Porter’s prior conviction was later admitted when Porter took the stand in his own defense. Before Porter took the stand, the trial judge addressed the issue of the State’s using the prior conviction to impeach Porter. Porter argues that the trial judge abused his discretion by finding that the probative value of the prior conviction substantially outweighed the prejudice to the defendant under the balancing test of Rule 609(a)(1)(B) and therefore allowing the State to impeach Porter by the prior conviction.

¶ 16. Once again, the fact that Porter’s own attorney opened the door to his prior conviction must be considered. When Porter took the stand, the jury had already heard about the conviction from Officer Novay on re-direct. The State was free to further explore the conviction on cross-examination of Porter. Porter asserts that the trial judge committed error by not going through the analysis of Peterson v. State, 518 So.2d 682 (Miss. 1987), in determining whether the probative value of the prior conviction outweighed the prejudicial effect on the defendant. Porter’s argument would be correct if the conviction was being offered to impeach Porter’s own testimony. The State was attempting to use the testimony based on earlier testimony given by Officer Novay which opened the door to Porter’s conviction for simple assault. Because the conviction was not used as a method of impeachment, the trial judge was'not required to make the analysis nor weigh the Peterson factors. The trial judge did not abuse its discretion by allowing the State to question Porter about his prior conviction.

II. • DID THE TRIAL COURT ERR BY ALLOWING THE STATE TO USE PORTER’S PRIOR CONVICTION IN VIOLATION OF UNIFORM RULES OF CIRCUIT AND COUNTY COURT PRACTICE 9.04?

A. Discovery Violation

¶ 17.' Porter asserts that during the recross of Officer Novay a discovery violation occurred. At that time, the State attempted to introduce the NCIC reports of Porter. Porter argues that the State committed a discovery violation by not disclosing .the reports showing the criminal record of Porter prior to trial. URCCC 9.04(a)(3).

¶ 18. The standard of review for discovery violations is abuse of discretion. The appellate court will affirm the trial court’s decision unless “there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.” Young v. State, 791 So.2d 875, 878(¶ 9) (Miss.Ct.App.2001) (citing Graves v. State, 767 So.2d 1049, 1051-52(¶ 6) (Miss.Ct.App.2000)). Evidentiary rulings are in the discretion of the trial court and will not be reversed except upon an abuse of discretion. Wimberly v. State, 839 So.2d 553, 559 (¶29) (Miss.Ct.App. 2002). Rule 9.04 of the Uniform Circuit and County Court Rules outlines the appropriate guidelines for the trial court to follow when resolving possible discovery violations. The purpose of the discovery guidelines is to avoid trial by unfair surprise or ambush. Wimberly, 839 So.2d at 560.

- ¶ 19. When a party seeks to raise the issue of discovery violation, a contemporaneous objection must be made. Collins v. State, 734 So.2d 247, 250(¶8) (Miss.Ct.App.1999) (citing Box v. State, 437 So.2d 19, 23 (Miss.1983)). Failure to timely object waives the issue of the discovery violation on appeal. Id. When the trial court is confronted with a discovery violation, the trial court should ^follow the procedures set forth in Box:

1) Upon defense objection, the trial court should give the defendant a reasonable opportunity to become familiar with the undisclosed evidence by interviewing the witness, inspecting-the physical evidence.
2) If, after this opportunity for familiari- . zation,' the defendant believes he may be prejudiced by lack of opportunity to prepare to meet'the evidence, he-must request a continuance. Failure -to do so constitutes a waiver of the issue.
3) If the defendant does request a continuance the State may choose to proceed with trial and forego using the undisclosed evidence.-

Wooten v. State, 811 So.2d 355, 366 (¶ 28) (Miss.Ct.App.2001) (citing Box, 437. So.2d at 23-24). The trial court’s failure to follow the procedures of Box is prejudicial error. Wooten, 811 So.2d at 366.

¶ 20. In the case sub judice, the first time defense counsel took issue with the NCIC report was during re-direct of Officer Novay. Defense counsel noted a discovery violation because the State allegedly failed to provide the report until the day of trial. However, Porter’s counsel never formally - objected to the use of the report at that time. During a conference outside the presence of the jury, the State offered to -withdraw the, report to which Porter’s attorney stated that he was satisfied with that result. The second time Porter’s counsel took issue with the use of the report was before Porter testified. At that time, the trial judge stated that he would give defense counsel an opportunity to confer with Porter on the issue of his prior conviction.

¶ 21. However, the next step of Box is for Porter to request a continuance if he believed the lack of opportunity to prepare to meet the evidence prejudiced him. Box, 437 So.2d at 23-24. No continuance was requested by Porter’s counsel at any time during the trial. Therefore, Porter has waived the issue on appeal. McCullough v. State, 750 So.2d 1212, 1217 (¶ 18) (Miss. 1999).

B. Judicial Estoppel

¶ 22. Porter also makes an argument in his appellate brief that the State’s offer to withdraw the report and then seeking to introduce it again later at trial constitutes an impermissible waiver by judicial estoppel. The doctrine of judicial estoppel precludes a party from asserting a position, benefitting from the position and then later in litigation retreating from that position. Dockins v. Allred, 849 So.2d 151, 155(¶ 7) (Miss.2003). Porter cites the case of Hoover v. State, 552 So.2d 834 (Miss.1989), to support his position. In Hoover, the State took inconsistent positions in the prosecution of co-defendants. The court held in that case, “This doctrine is to be used when the party against whom the estoppel was sought, knowingly, with full knowledge of the facts, asserted a position which was inconsistent with the position in prior judicial proceedings.” Hoover, 552 So.2d at 838. The court held that judicial estoppel does not apply equally in criminal cases as civil cases when the parties are not identical. Id.

¶ 23. Porter’s argument on judicial es-toppel is without merit because the doctrine is applicable when a party takes a different position in a later proceeding. Porter’s situation differs factually from Hoover in that Porter’s situation involves one trial, not two proceedings and therefore his claim for judicial estoppel is inapplicable.

III. DID THE TRIAL COURT ERR BY ALLOWING THE STATE TO ADMIT EVIDENCE OF PORTER’S CHARACTER AS TO HIS TEMPER AND HIS PARTICIPATION IN ANGER MANAGEMENT CLASSES?

¶ 24. Porter argues that the trial court erred by permitting the State to impeach him by cross-examination using character evidence as to his temper and his participation in anger management classes. The State was allowed to ask Porter the following on cross-examination:

District Attorney: And as a result of that conviction and sentence, you were required to attend an anger management class in April and that you graduated in 2001; is that correct?
Porter: Yes, sir.
District Attorney: Isn’t it true that you have a temper?
Porter: No, sir.
District Attorney: You don’t have a temper?
Porter: No, sir.

¶ 25. The questions posed by the State fall squarely within Rule 404(a) of the Mississippi Rules of Evidence which states, “Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion. ...”

¶ 26. The State sought to introduce this evidence based on testimony that Porter gave during his direct examination. On direct, Porter stated, “I have no reason to lie.... I meant I’m a working man. All I do is work, try to provide for my family. I got a seven year-old son that’s got a kidney problem right now, going back and forth to the doctor.” Porter also testified to his filling out a background check in order to purchase his handgun. The State’s position was that Porter opened the door to his own character and therefore the evidence was admissible under Rule 404(a)(1). Porter argued that he never opened the door to his character.

¶ 27. In order to raise an error on appeal, Mississippi Rule of Evidence 103(a) requires that a contemporaneous objection on specific grounds must be made to the admission of evidence by the trial court. Denson v. State, 746 So.2d 927, 930 (¶ 17) (Miss.Ct.App.1999). It should be noted that Porter’s counsel never formally objected to the State’s line of questioning concerning Porter’s temper and participation in anger management classes. We can find no contemporaneous objection in the record to the questions offered by the State. The trial court allowed the evidence to be admitted and Porter should have objected at that point in order to preserve the evidentiary issues for appeal. M.R.E. 103(a). Porter is therefore barred from making such an assertion on appeal.

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

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


source: Caselaw Access Project

author: LEE, J., for the Court.

license: Public Domain

text:
    Charles E. JACKSON and wife Irene S. Jackson, Appellants, v. The PEOPLES BANK and Trust Company, Brittain Allen Rogers, III and John Jameson Rogers, as Trustees of the Octavia Evans Rogers Chafin Trust, Appellees.
    No. 2002-CA-01484-COA.
    Court of Appeals of Mississippi.
    March 16, 2004.
    T. Victor Bishop, Fulton, attorney for appellants.
    Guy W. Mitchell, Martha Bost Stegall and Michael D. Ferris, Tupelo, attorneys for appellees.
    Before KING, P.J., LEE and CHANDLER, JJ.
   LEE, J., for the Court.

PROCEDURAL HISTORY

¶ 1. In this adverse possession case, the Peoples Bank and Trust Company and Trustee Jameson Rogers filed a complaint on behalf of the Octavia Evans Rogers Chafin Trust (Rogers). Therein Rogers sought to establish title to certain real property by adverse possession and to recover damages for the unlawful cutting of timber from this property.

¶ 2. After a four-day trial, the chancellor awarded title of the ten and one-half acres of property to Rogers. The chancellor, pursuant to Mississippi Code Annotated Section 95-5-10 (Rev.1994), also awarded Rogers damages for the timber cut by Jackson on the disputed property. Relying on the testimony of a forestry expert, the chancellor awarded Rogers $17,660.26, $15,860.26 of which represented double the market value of the trees cut, and an additional $1,800 for reforestation costs. The chancellor denied Rogers’s request for statutory penalties and other fees.

¶ 3. Charles and Irene Jackson appeal to this Court arguing that the chancellor erred in awarding Rogers title to the property based on adverse possession and in awarding damages related to the award. We review this issue and find the chancellor did not err; thus, we affirm.

FACTS

¶4. In 1957 Rogers obtained title to fifteen acres of a sixty-acre tract of land, and Jackson obtained title to the remaining forty-five acres. The designating line between the two tracts was a row of thirteen trees which ran north and south, all of which contained hack marks. The north one-half of the trees were denoted as “old hacked trees three hacks each.” The south one-half of the trees were noted on the survey as “hacked and painted line.” Jackson claims that the paint lines were not present in 1957 but appeared ten years later. A rock pile was set at Jackson’s southwest corner and Rogers’ southeast corner. Several people testified that the rock pile, which previously noted the corners of each property line, had been moved recently. However, others testified that the rock pile had been in the same place for decades and marked the southeast corner of Rogers’s property including the disputed property. Also, there was contradicting testimony as to whether the paint on the trees was new or old.

DISCUSSION

I. DID THE CHANCELLOR ERR IN AWARDING ROGERS TITLE TO THE PROPERTY BASED ON ADVERSE POSSESSION AND IN AWARDING DAMAGES?

¶ 5. In this appeal, the Jacksons’ sole contention is that the chancellor erred in awarding Rogers title to the property in question based on adverse possession and in awarding Rogers damages related to the finding of adverse possession. In reviewing the decisions of a chancellor, we look for abuse of discretion. McNeil v. Hester, 753 So.2d 1057(¶21) (Miss.2000). This Court will not disturb a chancellor’s findings unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard. Rice v. Pritchard, 611 So.2d 869, 871 (Miss.1992). It is not the job of this Court to redetermine questions of fact resolved by the chancellor. Johnson v. Black, 469 So.2d 88, 90 (Miss.1985).

¶ 6. Mississippi’s adverse possession statute, codified as Mississippi Code Annotated Section 15-1-13 (Rev.2003), reads in pertinent part as follows:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title....

For possession to be adverse it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful. Rice, 611 So.2d at 871. The burden of proof is on the adverse possessor to establish by clear and convincing evidence that each element is met. Id. In most cases, the underlying question is whether the possessory acts relied upon by the would-be adverse possessor are sufficient to put the record title holder on notice that the lands are held under an adverse claim of ownership. Peagler v. Measells, 743 So.2d 389(¶ 7) (Miss.Ct.App. 1999). Furthermore, a “land owner must have notice, actual or imputable, of an adverse claim to his property in order for it to ripen against him, and the mere possession of land is not sufficient to satisfy the requirement of open and notorious.” People’s Realty & Dev. Corp. v. Sullivan, 336 So.2d 1304, 1305 (Miss.1976).

¶ 7. In her opinion, the chancellor discusses at length her findings of facts and their application to the law of adverse possession. We reiterate her findings as follows. The chancellor determined that the Jacksons’s metes and bounds description did not include the disputed property and relied upon Dochterman v. Marshall, 92 Miss. 747, 46 So. 542 (1908), for the proposition that the metes and bounds description of the Jacksons’s deed controls over the general description. Rogers had marked the boundary of the disputed property by highly visible orange paint and had been doing so for over forty years. Britt Rogers testified that he repainted the line his father had originally painted after acquiring the property and that he had done so in the 1970s and again in 1994 or 1995. Carl Scherff, a surveyor, and Charles Carter, a forester, testified that validating a property line using orange paint was the preferred way to establish effective control of property of this nature. Carter stated that he saw the rock set and the painted line and said it looked as if the line had been there for years. Carter further testified that the property was marked and maintained in good forestry fashion. Scherff also said that he saw the painted line running north from the rock set and that it appeared as if it had been there for years. Harold Russell, a forestry consultant, testified that he had seen the rock set in the same position since the 1970s and the he helped coordinate the repainting of the disputed line with Britt Rogers in 1994 or 1995.

¶ 8. The chancellor noted Kayser v. Dixon, 309 So.2d 526 (Miss.1975), which stated that an important question to ask is whether the person adversely claiming the property exercises the same character of control over the land as he would toward property actually his “and which he would not have exercised over property which did not belong to him,” in determining that Rogers treated the disputed property as his own. Rogers inspected the property twice a year and regularly inspected for insect and beaver infestation just as he did to his other property in the county. Rogers also painted the boundary lines on the disputed property the same way he painted the boundary lines on his other property in the county. The chancellor also mentioned that no one lives on either property owned by Jackson and Rogers and that the property in question does not have maintained roadways or other improvements. Rogers does allow people to hunt on his property.

¶ 9. We note that Jackson filed a counter-claim for adverse possession of a portion of Rogers’s property and lost proceeds for timber cut by Rogers, supposedly in the last ten years, on the disputed property. However, the chancellor stated that, “Although Jackson recognizes the act of ownership exhibited by painting lines across trees as seen by his counter-claim of adverse possession, he offered no testimony or other proof that he had ever painted and maintained any lines between his property and that of Rogers.” Furthermore, after the timber was cut, Jackson made no complaint to Rogers, only advancing the issue in his counter-claim. On the other hand, when Jackson cut the timber, Rogers promptly notified Jackson that the timber should not be cut past the eastern line of the disputed property.

¶ 10. In looking at the facts we cannot say that the chancellor abused her discretion in awarding title to the property to Rogers by adverse possession. Furthermore, as we affirm the chancellor’s ruling on this matter, we also find that awarding damages for the timber cut on Rogers’s property was appropriate.

¶11. THE JUDGMENT OF THE ITAWAMBA COUNTY CHANCERY COURT IS AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: CHANDLER, J.,

text:
    Linda Jean SMITH, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CA-02056-COA.
    Court of Appeals of Mississippi.
    March 30, 2004.
    William Wendell Martin, Oxford, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.

      Before KING, P.J., LEE and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Linda Jean Smith appeals from an order denying a petition to expunge her criminal record. After a hearing on the matter, the court entered an order denying Smith’s petition on June 24, 2002. Feeling aggrieved, Smith appeals and cites the following errors:

I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S PETITION TO EXPUNGE RECORD ON THE BASIS THAT THE COURT DID NOT HAVE JURISDICTION TO EXPUNGE SAID RECORD.
II. THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S PETITION TO EXPUNGE RECORD ON GROUNDS THAT THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE , OF COUNSEL BECAUSE HER ATTORNEY FAILED TO REQUEST NON-ADJUDICATION AT THE TIME OF HER GUILTY PLEA.

¶2. Finding no merit in Smith’s assertions, we affirm the ruling of the trial court.

FACTS

¶ 3. On February 14, 1996, Smith was charged in an indictment with the offense of uttering a forgery for attempting to pass a stolen eighty-five dollar check. Smith had no prior criminal record. On September 23,1996, Smith entered a guilty plea and was sentenced to three years in the Mississippi Department of Corrections, suspended, two years’ probation, and a two hundred dollar fíne. Smith filed a petition to expunge this record on May 24, 2002, pursuant to Mississippi Code Annotated Section 99-15-57(1) (Supp.2003). In response, the State argued the trial court lacked jurisdiction to change the sentence.

¶ 4. The trial court entered an order denying the petition to expunge on the basis the court lacked jurisdiction.

¶ 5. The circuit court has the power to expunge criminal records that result from a guilty plea if certain conditions are met. One of those conditions is if a defendant pleads guilty under section 99-15-26, but the guilty plea is not accepted by the judge. Instead, the defendant is placed on probation with certain conditions that must be fulfilled before he may petition for ex-pungement of the record. If the defendant fails to complete the conditions of the probation, he is adjudicated guilty and the judge imposes a sentence according to the crime committed.

¶ 6. Mississippi Code Annotated Section 99-15-26 (Supp.2003), provides:

(1) In all criminal cases, felony and misdemeanor, other than crimes against the person, the circuit or county court shall be empowered, upon the entry of a plea of guilty by a criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section. In all misdemeanor criminal cases, other than crimes against the person, the justice or municipal court shall be empowered, upon the entry of a plea of guilty by a criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section. No person having previously qualified under the provisions of this section or having ever been convicted of a felony shall be eligible to qualify for release in accordance with this section. A person shall not be eligible to qualify for release in accordance with this section if such person has been charged (a) with an offense pertaining to the sale, barter, transfer, manufacture, distribution or dispensing of a controlled substance, or the possession with intent to sell, barter, transfer, manufacture, distribute or dispense a controlled substance, as provided in Section 41-29-139(a)(1), Mississippi Code of 1972, except for a charge under said, provision when the controlled substance'involved is one (1) ounce or less of marihuana;
(b)with an offense pertaining to the possession of one (1) kilogram or more of marihuana as provided in Section 41-29-139(c)(2)(D), Mississippi Code of 1972; or (c) with an offense under the Mississippi Implied Consent Law.
(2)Conditions which the circuit, county, justice or municipal court may impose under subsection (1) of this section shall consist of:
(a) Reasonable restitution to the victim of the crime.
(b) Performance of not more than nine hundred sixty (960) hours of public service work approved by the court.
(c) Payment of a fine not to exceed the statutory limit.
(d) Successful completion of drug, alcohol, psychological or psychiatric treatment or any combination thereof if the court deems such treatment necessary.
(e) The circuit or county court, in its discretion, may require the defendant to remain in the program subject to good behavior for a period of time not to exceed five (5) years. The justice or municipal court, in its discretion, may require the defendant to remain in the program subject to good behavior for a period of time not to exceed two (2) years.
(3) When the court has imposed upon the defendant the conditions set out in this section, the court shall release the bail bond, if any.
(4) Upon successful completion of the court-imposed conditions permitted by subsection (2) of this section, the court shall direct that the cause be dismissed and the case be closed.
(5) Upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.
(6) This section shall take effect and be in force from and after March 31, 1983.

I. DID THE TRIAL COURT ERR IN DENYING THE APPELLANT’S PETITION TO EXPUNGE RECORD ON THE BASIS THAT THE COURT DID NOT HAVE JURISDICTION TO EXPUNGE SAID RECORD?

¶ 7. Smith alleges the trial court had authority to expunge the record pursuant to Mississippi Code Annotated Section 99-15-57 (Supp.2003), which provides:

(1) Any person who pled guilty within six (6) months prior to the effective date of Section 99-15-26, Mississippi Code of 1972, and who would have otherwise been eligible for the relief allowed in such section, may apply to the court in which such person was sentenced for an order to expunge from all official public records all recordation relating to his arrest, indictment, trial, finding of guilty and sentence. If the court determines, after hearing, that such person has satisfactorily served his sentence or period of probation and parole, pled guilty within six (6) months prior to the effective date of Section 99-15-26 and would have otherwise been eligible for the relief allowed in such section, it may enter such order. The effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest or indictment. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such arrest, or indictment or trial in response to any inquiry made of him for any purpose.
(2) Upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.

¶ 8. Smith argues that her guilty plea was made within six months of March 31, 1983, the effective date of Section 99 — 15— 26. Smith asserts that any and all pleas occurring on or after October 1, 1982, are within six months of the effective date of Section 99-15-26. Smith’s argument is incorrect. October 1, 1982, is the earliest date that a defendant may satisfy the requirement of section 95-15-57. Caldwell v. State, 564 So.2d 1371, 1372 (Miss.1990). Smith pled guilty to uttering a forgery on September 23, 1996. The window of opportunity had closed for Smith when she entered her plea.

¶ 9. The court lacked jurisdiction to expunge Smith’s criminal record because the trial court did not withhold acceptance of her guilty plea when Smith pled on September 23, 1996. Smith did not receive a non-adjudication of guilt from the trial court. Instead, the trial court sentenced Smith to regular probation. Because Smith was not sentenced pursuant to Section 99-15-26, her argument is without merit.

II. DID THE TRIAL COURT ERR IN DENYING THE APPELLANT’S PETITION TO EXPUNGE RECORD ON GROUNDS THAT THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HER ATTORNEY FAILED TO REQUEST NON-ADJUDICATION AT THE TIME OF HER GUILTY PLEA?

¶ 10. Smith asserts that she received ineffective assistance of counsel because the attorney failed to move for non-adjudication of the guilty plea. In order to prove a claim of ineffective assistance of counsel, the defendant must make a showing of deficient performance by counsel and prove that, but for the deficient performance, a different result would likely have occurred. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Donnelly v. State, 841 So.2d 207, 211(¶ 8) (Miss.Ct.App.2003).

¶ 11. On review, we look with deference to see whether counsel’s efforts were effective based on the totality of the circumstances. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Ineffective assistance of counsel claims carry a presumption that trial counsel’s conduct is within a wide range of reasonable conduct and decisions made by counsel are strategic. Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶ 12. Smith must overcome the presumption to prove her claim. The strategy of Smith’s attorney was to avoid incarceration. Smith’s attorney negotiated a plea bargain for Smith and she received a suspended sentence, a monetary fine and probation. There is no evidence that a sentence pursuant to the non-adjudication laws of our State was a condition to which the prosecution would have agreed or the trial judge would have accepted. The court could have imposed nine hundred sixty hours or one hundred twenty-eight days of public service if Smith had requested non-adjudication of her sentence. The record indicates Smith chose to avoid the risk of such a sentence and sought regular probation instead.

¶ 13. Therefore, Smith’s claim of ineffective assistance of counsel is without merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Henry SEALS, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01195-COA.
    Court of Appeals of Mississippi.
    March 30, 2004.

      Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On July 15, 2002, Henry Seals was convicted in the Circuit Court of Neshoba County on two counts of selling cocaine. Seals was sentenced to twenty-five years on each count. The sentences were to run concurrently, with five years suspended on each count, leaving twenty years to serve on each count. Seals filed a motion for a new trial which was denied by the trial court. Feeling aggrieved, he appeals and cites the following errors:

I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTIONS TO LEADING QUESTIONS.
II. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION TO THE INTRODUCTION OF THE VIDEOTAPE COPY OF THE ORIGINAL FILM OF THE ALLEGED SALES OF COCAINE.

¶ 2. Finding no error, we affirm the ruling of the trial court.

FACTS

¶ 3. With the use of a confidential informant, the Tri-County Narcotics Task Force began conducting undercover purchases of illegal drugs on December 5 and 7, 2000. The agents, acting through confidential informant Ross Kyzer, purchased two quantities of cocaine from Seals. The Narcotics Task Force recorded both drug transactions on videotape.

¶ 4. At trial, Kyzer testified that on December 5 and 7, 2000, he purchased rocks of cocaine from Seals in twenty and forty dollar amounts respectively. The State offered into evidence the videotape of the controlled buys and Kyzer identified Seals as the individual who sold him the drugs. Kyzer further testified that the tape correctly and accurately depicted the undercover operations and that the copy of the tape was an exact duplicate of the original tape.

¶ 5. Agent Don Bartlett of the Tri-County Narcotics Task Force testified that the original videotape recording would not be shown to the jury. Instead, an identical VHS copy of the mini-tape would be played because it was easier to start and stop during the viewing. The VHS format would also enable the jury to view the tape without the distortions that are caused by pausing a mini-tape. Bartlett testified that he personally converted the tape from the mini form to VHS.

¶ 6. Agent Barry MeWhiter of the TriCounty Narcotics Task Force also testified for the State. Agent MeWhiter explained the procedures of an undercover buy and testified that Seals was the individual who sold confidential informant Kyzer the cocaine. Jamie Johnson, a forensic scientist with the Mississippi Crime Lab in Meridian, testified that the two substances the State submitted for testing, were in fact cocaine.

I. DID THE TRIAL COURT ERR IN OVERRULING APPELLANT’S OBJECTIONS TO LEADING QUESTIONS?

¶ 7. Seals contends the trial court committed error by allowing the prosecutor to ask leading questions. The following is the testimony to which the defense objected:

Q (Thames) If you would, Mr. Kyzer, can you step back here so we can let you look at this also? This will be the transaction that occurred on December the 5th, 2000; is that correct?
A Yes, sir.
REPORTER’S NOTE: Video was shown to the Jury and viewed by the Court, defendant and attorneys. Reporter was unable to hear the question and answer because of the videotape that was being played.
THE COURT: As far as asking questions during the tape, you might want to stop it and then say, What are you doing at that point?
MR. THAMES: Okay.
THE COURT: For clarification. So go ahead and develop that particular—
MR. THAMES: Would you back it up?
MR. BARTLETT: Yes.
REPORTER’S NOTE: Video played again.
MR. THAMES: All right. Stop it.
Q (Thames) All right. Can you tell us at this point when- — -I understood you to say that you had asked for a $20.00 amount of cocaine; is that correct?
A Correct. Yes, sir.
Q And did you tell me that the defendant then left and walked away, as-sumingly to go get the drugs?
A Yes,'sir.
Q Then after he left did you back up to—
A Because when I pulled—
MR. BROOKS: Object to him leading, Your Honor.
THE COURT: Sustained.
Q After you backed up, did you wait on the defendant?
A Yes, I did. Yes, sir.
Q Is this when the defendant returned?
A Yes, sir.
MR. BROOKS: Object to him leading, Your Honor.
THE COURT: I don’t think that is leading at that point. Overruled.
Q Is this picture that is stopped on the television when the defendant has returned?
A Yes, it is.
MR. BROOKS: Object to him leading, Your Honor.
THE COURT: Overruled.

¶ 8. To justify a reversal because of leading questions requires a finding of manifest abuse of discretion and a finding that the question influenced the answer, causing injury. Tanner v. State, 764 So.2d 385, 405 (¶ 58) (Miss.2000) (citing Palmer v. State, 427 So.2d 111, 115 (Miss.1983)). In Clemons v. State, 732 So.2d 883, 889 (¶ 25) (Miss.1999), the supreme court defined a leading question as follows:

A leading question is one that suggests to the witness the specific answer desired by the examining attorney. Trial courts are given great discretion in permitting the use of such questions, and unless there has been a manifest abuse of discretion resulting in injury to the complaining party, we will not reverse the decision. This is because the harm caused is usually inconsiderable and speculative, and only the trial court was able to observe the demeanor of the witness to determine the harm.

¶ 9. “To justify a reversal because of the allowance of a leading question, not only is it necessary that there should have been a manifest abuse of discretion, but it is also necessary that the question shall have influenced the answer and that injury resulted.” Palmer v. State, 427 So.2d 111, 115 (Miss.1983).

¶ 10. The effect of leading questions in this case did no harm to the defendant. Seals objected to the State leading its confidential informant, Kyzer, during direct examination. The trial court sustained the first objection. After the State rephrased the question, Seals repeated his objection. However, the trial court overruled Seals’ objection and allowed Kyzer to answer the question.

¶ 11. Because the court reporter was unable to hear the State’s questions and the witnesses’ answers while the videotape was being played, the trial court ordered the State to stop the tape periodically and allow the witness to explain what occurred on the day in question. Considering the examination of Kyzer in its entirety, the purpose and effect of the leading questions were to describe what was clearly being shown on the videotape. Kyzer was the confidential informant on the tape and he possessed firsthand knowledge of the events that transpired. The leading questions did not result in any injury to Seals’ defense and the trial court did not abuse its discretion in allowing the State to ask the leading questions. This assignment is without merit.

II. DID THE TRIAL COURT ERR IN OVERRULING APPELLANT’S OBJECTION TO THE INTRODUCTION OF THE VIDEOTAPE COPY OF THE ORIGINAL FILM OF THE ALLEGED SALES OF COCAINE?

¶ 12. Seals argues that the copy of the videotape was not properly authenticated. Seals also maintains that the best evidence rule was violated because a copy of the tape was produced in lieu of the original. During the examination of Kyzer, the State offered into evidence a duplicate VHS copy of the drug transactions. Seals objected to the admission of the VHS videotape on the ground that it had not been properly authenticated. The following testimony transpired between the prosecutor and the witness:

Q Have you reviewed a tape of this transaction-videotape of this transaction?
A Yes, sir.
Q And did it accurately and correctly depict or show the transaction that had took place on that date, December the 5th?
A Yes, sir. To every detail.
Q And you have reviewed that tape?
A Yes, sir.
MR. THAMES: Your Honor, I would like to ask permission that the tape be played of this transaction. And that Don Bartlett come forward and assist me by showing this to the jury?
THE COURT: Mr. Brooks and Mr. Collins, any objection at this point?
MR. BROOKS: No objection to Mr. Bartlett, Your Honor. We would object to the admission of this tape at this particular point, because there has been no evidence or proper predicate laid to show whether this is the very tape that was in the automobile at the time the witness has testified to. He did testily he didn’t have anything to do with the installation or removal of the tape. And so, there would be a question of whether this is the same tape that was in the vehicle at the time he says that this alleged sale occurred.
THE COURT: It may be very simple to connect that up. Mr. Thames, do you understand the objection now?
MR. THAMES: Your Honor, basically, I had asked him the question has he reviewed the tape that was in the machine. And he has indicated and by his testimony that it has. And his is the tape that is before us. And I would ask him if it is correctly and accurately depicting or showing the sale that took place. And he says, yes, it does to the very detail. So, I would submit that it is leading up to it is credible and that he is allowed to testify to that fact. And that it should be allowed to be shown.
THE COURT: Rule 901 is the rule which is pertinent in this matter, which has to do with authentication. And the Court has heard testimony which is to the effect that the witness has so stated that the tape that is sought to be introduced is the one that was gotten — was placed in his hands as far as a part of the totality of the circumstances between the three officers and himself. He has adopted it. And so, the Court feels -a proper predicate has been laid and the objection is overruled. Any further objections, Mr. Brooks?
MR. BROOKS: No, Your Honor.

¶ 13. “Under this Court’s standard of review, the admissibility of evidence rests within the discretion of the trial judge. Unless his judicial discretion is abused, this Court will not reverse his ruling. The same standards used in determining the admissibility of photographs are applicable to the admission of videotapes.” Davis v. State, 767 So.2d 986, 996 (¶ 24) (Miss.2000). The tape was admitted pursuant to Rule 901(b)(1) of the Mississippi Rules of Evidence which provides that authentication can be accomplished by testimony from someone familiar with and with knowledge of the contents of the document or recording. M.R.E. 901. The State satisfied this rule when it offered the testimony of Kyzer. Kyzer testified that the VHS copy accurately and correctly depicted the transaction as it occurred on the day in question. Kyzer was familiar with the particulars of the drug transaction and testified sufficiently to the accuracy of the recording. See Wells v. State, 604 So.2d 271, 277 (Miss.1992). The Court finds that the tape was properly authenticated and the trial judge did not abuse his discretion in admitting the tape into evidence.

¶ 14. Seals also maintains that the best evidence rule was violated because a copy of the tape was produced in lieu of the original. Mississippi Rule of Evidence 1003 provides that a duplicate is admissible as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. M.R.E 1003. Seals objected to the admission of the VHS videotape in lieu of the original mini-tape. In overruling Seals’ objection the court stated:

The Court has viewed both of the tapes [the original and the copy] in the entirety of what they purport to show as far as Counts 1 and 2 are involved. The Court has heard witness Bartlett’s explanation as far as the reason that he has converted the cassette tapes to the one video. Particularly his reason about the equipment and particularly him saying that to slow down the tape or to stop it at a particular critical juncture would make it not visible and not clear. The Court deems that as a very logical and plausible reason. And not only that it appears to be more as far as the jury not being confused and as far as the defendant not wanting to be misidentified that [sic] is a good reason for the evidence to have produced as it has been. So, the Court based on the rulings it has already made as far as authentication and then now the matter of technical problems that may or may not be involved, the Court is satisfied that there is no prejudice. That the evidence is coming in clearly. And that the best evidence rule is also satisfied. So the objection is overruled.

¶ 15. A copy of a videotape depicting an alleged drug transfer does not violate the best evidence rule, if the undercover agent testifies that the videotape is an accurate depiction of events. Trull v. State, 811 So.2d 243, 247 (¶¶ 9 10) (Miss. Ct.App.2000)

¶ 16. The trial court viewed the original videotape and the duplicate VHS tape before admitting the duplicate into evidence. The trial court found no undue prejudice would befall Seals by admitting the copy of the VHS tape in lieu of the original. Questions regarding the admission of evidence is left to the sound discretion of the trial judge. The State offered a logical reason for presenting a duplicate VHS copy of the videotape. Seals’ argument is without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF NESHOBA COUNTY OF CONVICTION OF TWO COUNTS OF THE SALE OF COCAINE AND SENTENCE OF TWENTY-FIVE YEARS ON EACH COUNT AS A SECOND OFFENDER WITH FIVE YEARS SUSPENDED ON EACH COUNT AND TWENTY YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS ON EACH COUNT, SENTENCES TO RUN CONCURRENTLY, AND FIVE YEARS OF POST RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHO-BA COUNTY.

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


author: McMILLIN, C.J.,

text:
    Trina Marie Davis CALLAHAN (Fallon), Appellant v. Michael R. DAVIS, Janet Diane Ledingham and Jeffery Ledingham, Appellees.
    No. 2003-CA-00144-COA.
    Court of Appeals of Mississippi.
    March 30, 2004.

      William E. Tisdale, attorney for appellant.
    Michael R. Davis, pro se.
    James (Jay) R. Foster, attorney for ap-pellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   McMILLIN, C.J.,

for the Court.

¶ 1. Trina Marie Davis Callahan has appealed from a judgment entered by the Chancery Court of Harrison County that denied her request to obtain primary physical custody of her natural daughter. Ms. Callahan claims that the chancellor was manifestly in error in failing to find that a change of custody to Ms. Callahan from the child’s paternal grandmother and the grandmother’s husband was in the child’s best interest. Alternatively, Ms. Callahan alleges that the chancellor abused his discretion in the manner in which he modified her visitation rights with the child. We find no error and affirm.

I.

Facts

¶ 2. Ms. Callahan and Michael R. Davis were divorced on April 23, 1999, on the ground of irreconcilable differences, thereby ending their marriage that had begun on February 19, 1995. Alistair, the only child of the marriage, was born on June 29, 1996. At the time of the divorce, the parties mutually agreed that neither parent had “a suitable place or arrangement for the care of the child.” As a result, they provided by written agreement that they would retain joint legal custody of the child but that paramount physical custody would be awarded to Mr. Davis’s mother, Janet Diane Ledingham and her husband, Jeffery Ledingham. Despite this grant of custody to a third party, both natural parents were granted “all reasonable rights of supervised visitation at the home of JANET DIANE LEDINGHAM and her husband, JEFFERY LEDINGHAM, or at such other places as JANET DIANE LEDINGHAM may agree.”

¶ 3. The chancellor, finding as fact that Mr. and Mrs. Ledingham had voluntarily appeared in the divorce proceeding and would be bound by the terms of the judgment, ratified and approved the custody and visitation arrangement proposed by the parties.

¶ 4. The written agreement entered into as a part of the dissolution of the marriage contained the following provision relating to custody modification:

That at such time as either of the parties chooses to file a petition with the Court for the Court to reconsider custody based on a material change in circumstances, either of the parties shall have the right to apply for custody of the child, jointly or solely, upon a showing that it would be in the best interest of the child to be with that party.

¶ 5. Ms. Callahan subsequently filed a petition seeking to modify custody in August 2001, and the matter was heard in late July 2002. At that time, Ms. Callahan presented evidence that she had forsaken her earlier somewhat dissolute lifestyle, which admittedly included use of illegal drugs, and had moved to Florida where she had obtained steady gainful employment and was living comfortably and in stable circumstances with her ten-year-old daughter. The daughter was not the child of Mr. Davis. There was evidence presented that the daughter was enrolled in school, attended on a regular basis, and was doing quite well in her studies.

¶ 6. Ms. Callahan contended that this dramatic change in her lifestyle from the time of her divorce from Mr. Davis was a material change in circumstance, triggering the requirement that the chancellor make a determination as to whether a change in custody to her, as the natural parent, was in the child’s best interest. She further contended that, if the correct standard was applied, it would necessarily result in a determination that the child’s best interests lie in being in the custody of the child’s natural parent as opposed to a grandparent.

¶ 7. The chancellor, after making findings of fact that essentially accepted as true the assertions of Ms. Callahan in regard to her changed situation, nevertheless concluded that she had failed to show by clear and convincing evidence that a modification in the custodial arrangement was appropriate. However, in light of Ms. Callahan’s improved personal situation, the chancellor did modify Ms. Callahan’s rights of visitation substantially expanding her opportunities to visit with the child.

¶ 8. It is from that determination that Ms. Callahan has perfected this appeal.

II.

Custody Modification

¶ 9. The first matter to be dealt with is to determine the proper legal standard that the chancellor should have applied in making a determination as to whether a modification in custody was warranted. Because the existing custody arrangement involved individuals other than the natural parents, the chancellor was not obligated to apply the usual standard applied in modification proceedings brought by a non-custodial parent against the custodial parent. In that situation, the chancellor, in order to modify custody, must, at the threshold, make a determination that there has been a material change in circumstance affecting the child that is adverse to the child’s best interest. Touchstone v. Touchstone, 682 So.2d 874, 377 (Miss.1996).

¶ 10. Historically, in situations like we now face, the natural parent, in reliance on the presumption that a child’s best interest is served by being with a natural parent, has been able to reclaim custody of a child from a third party absent an affirmative showing of abandonment or unfitness on the part of the parent. See, e.g., Ethredge v. Yawn, 605 So.2d 761, 764 (Miss.1992). However, the Mississippi Supreme Court in April 2000, said that it “had never before been asked to rule on whether the natural parents’ consent to and joinder in court proceedings granting custody to such third parties should alter that presumption.” Grant v. Martin, 757 So.2d 264, 266(119) (Miss.2000). Paying homage to the “great importance” of “stability in the lives of children,” the supreme court created a new standard in such instances, which it defined in the following terms:

Therefore we adopt a new standard and hold that a natural parent who voluntarily relinquishes custody of a minor child, through a court of competent jurisdiction, has forfeited the right to rely on the existing natural parent presumption. A natural parent may reclaim custody of the child only upon showing by clear and convincing evidence that the change in custody is in the best interest of the child. This new rule not only reaffirms that the polestar consideration in all child custody cases is the best interest of the child, but also gives the chancellor the authority to make a “best interest” decision in voluntary relinquishment cases without being fettered by the presumption in favor of natural parents which applies in other child custody cases.

Id. at (¶ 10). Notably absent from this standard is a requirement that the parent seeking custody demonstrate a material change in circumstance regarding the child’s situation as a prerequisite for relief. Rather, the focus is entirely on the best interest of the child. The burden of showing that a change in custody would meet those best interests is placed on the natural parent, and the burden has been set higher than a mere preponderance of the evidence. Rather, the evidence that some alteration is in order must be “clear and convincing.” Id.

¶ 11. The chancellor in this case, while taking note of Ms. Callahan’s commendable efforts to improve her lifestyle and become a more productive, responsible person, also observed that the custodial grandparents had provided the child a stable, secure and nurturing environment in which the child appeared to be thriving. Taking into account the benefits associated with a stable home environment, the chancellor concluded that Ms. Callahan had failed to show by clear and convincing proof that a change in custody was in the best interest of the child. In matters related to custody determinations, the chancellor has substantial discretion, and as an appellate court, we are permitted to disturb such determinations only if we are convinced that the chancellor has abused his discretion in making the challenged determination or has applied the wrong legal standard. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995).

¶ 12. In a somewhat similar situation, this Court affirmed the chancellor’s determination not to alter custody from a child’s grandparents on the natural mother’s petition despite the mother’s evidence that she had turned away from a lifestyle that in-eluded alcohol abuse and use of illegal drugs. Hill v. Mitchell, 818 So.2d 1221, 1226-27(¶ 38) (Miss.Ct.App.2002). In that case, we observed that the normally-fundamental right of parents to the custody of their children can be “compromised by [the parents’] long acquiescence in a separation that was brought about by [their] own voluntary surrender of the custody....” Id. at (¶ 35) (quoting Governale v. Hale, 228 Miss. 271, 283, 87 So.2d 686, 691 (1956)).

¶ 13. Based upon our review of the record, we are unable to conclude that the chancellor abused the discretion afforded him in deciding the custody issue in this case when he found that Ms. Callahan did not show by clear and convincing evidence that a change in custody to her was in the child’s best interest.

III.

Visitation Schedule

¶ 14. The chancellor likewise has considerable discretion in determining appropriate visitation schedules for non-custodial parents. Weigand v. Houghton, 730 So.2d 581, 587(¶ 27) (Miss.1999). As a result of Ms. Callahan’s petition, the chancellor expanded her visitation rights from a strictly supervised and rather narrow visitation schedule to one that permitted one full weekend per month, Mother’s Day weekend every year, one month during the summer, a period during Christmas, and visitation during spring break, Labor Day, and Thanksgiving.

¶ 15. Ms. Callahan contends that the chancellor abused his discretion in setting up this revised schedule since it did not provide for more frequent weekend visitation periods, a longer period during the summer, and extended weekend visitation during Mardi Gras. Ms. Callahan contends that the schedule as ordered by the chancellor is less than the standard visitation schedule typically ordered in a divorce proceeding and that, rather than having less time with the child, she should have an expanded visitation schedule based on the fact that she is the child’s natural mother and the custodial parties are not the natural parents of the child.

¶ 16. We have been cited to no authority that suggests that visitation rights of a non-custodial parent ought to be expanded simply on the basis that primary custody is vested in someone other than the other natural parent. Further, we cannot discern any logical basis for such a rule which, if applied arbitrarily, would do nothing to ensure that the interests of the affected child were being advanced. As in all other matters affecting child custody, the best interest of the child must be the primary focus in determining an appropriate visitation schedule. “On visitation issues, as with other issues concerning children, the chancery court enjoys a large amount of discretion in making its determination of what is in the best interest of the child.” Haddon v. Haddon, 806 So.2d 1017, 1020(¶ 12) (Miss.2001).

¶ 17. It is the view of this Court that the visitation arrangements for Ms. Callahan ordered by the chancellor appear to fall within the range of discretion afforded the chancellor in fashioning a schedule that is in the best interest of the child, and we do not think the chancellor abused his discretion in failing to expand the visitation further in the areas complained of by Ms. Callahan in her brief to this Court.

¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: SOUTHWICK, P.J.,

text:
    Kenneth H. HALLE, Appellant v. Virginia Natoli Halle HARPER, Appellee.
    No. 2003-CA-00488-COA.
    Court of Appeals of Mississippi.
    March 30, 2004.

      Elizabeth Paige Williams, attorney for appellant.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Kenneth and Virginia Halle were divorced in the Chancery Court of DeSoto County in October 1998. Mr. Halle was to pay child support and also the children’s private school tuition. Mr. Halle petitioned the court to modify the child support and tuition payments, which was denied. He later petitioned the court to reconsider the matter, which also was denied. Mr. Halle appeals arguing that he was not afforded an opportunity to present witnesses during the modification hearing and that there were material changes in circumstances which make him unable to pay for the children’s tuition. We find no error in the chancellor’s resolution and affirm.

DISCUSSION

¶ 2. This appeal originally included an issue regarding visitation. The date of the final judgment of the chancellor denying the motion for reconsideration was February 11, 2003. An appeal promptly followed. During the appeal, there was an order from the chancellor on August 19, 2003. We have been provided with this order by a proper supplementation of the appellate record. The order resolved the visitation dispute and only two issues remain to be discussed in this appeal.

¶ 3. In most suits, the trial judge loses all jurisdiction once a case is appealed. McNeil v. Hester, 753 So.2d 1057, 1075-76 (Miss.2000). A chancellor, however, may modify child support, custody and visitation while a case is on appeal if a proper basis for doing so is shown:

The appellant first contends the trial court was without jurisdiction to determine the matter since there was an appeal pending. With this theory we cannot agree. The court may re-examine the question of custody or support at anytime on showing a change of conditions, regardless of the pendency of an appeal. It may, and sometimes does, require many months to determine a case on appeal.

Smith v. Necaise, 357 So.2d 931, 933 (Miss. 1978), quoting DeSimone v. DeSimone, 392 S.W.2d 68, 68-69 (Ky.1965). This is not to say that chancellors should freely or frequently consider motions for modifications of their domestic case decrees after they have been appealed. Reconsideration of judgments then on appeal is improper. Addressing potentially legitimate pleas of material changes in circumstances beyond what is shown in the record on appeal, may occasionally be necessary. Should such rulings be made, the clerk for the appellate courts should immediately be notified.

¶ 4. It was procedurally proper for the chancellor to modify visitation, and no complaint regarding the change is made in the supplemental briefing that we invited.

1. Testimony of witnesses

¶ 5. Mr. Halle complains that he was not given an opportunity to present witnesses to testify in his favor during the reconsideration hearing. This Court may only consider what is in the record. If there was no objection made, the issue is waived on appeal. In re V.R., 725 So.2d 241, 245 (Miss.1998). Mr. Halle did not object on the record to the fact that no testimony of witnesses would be given. He further offers no evidence of what the testimony would have included.

¶ 6. Mr. Halle points out in his brief that the chancellor stated, “I don’t know what the proof is; I haven’t heard the proof.” However, the chancellor was not discussing Mr. Halle’s financial situation but was discussing his living arrangements as it pertained to the child custody issue. On this record, we find no basis on which to find error.

2. Tuition

¶ 7. Mr. Halle also argues that there has been a material change in circumstances and he is therefore unable to pay for his children’s private school tuition. A final divorce decree may be modified only in limited situations. Lawrence v. Lawrence, 574 So.2d 1376, 1380 (Miss. 1991). There must be a material change in the circumstances that could not have been foreseen at the time of the final divorce. Id. Mr. Halle argues in his brief that his income has been reduced from about $80,000 to $33,493 annually. This is a material change in his circumstances that allegedly should allow the final divorce to be modified.

¶ 8. Pre-college tuition is part of child support and must be reasonable in light of the parents’ income. Southerland v. Southerland, 816 So.2d 1004, 1006 (Miss. 2002). Here, Mr. Halle was required to pay child support and also to pay for the children’s tuition. Since there are three children, there are guidelines that if followed, would cause Mr. Halle to pay child support in the amount of 22 percent of his adjusted gross income. Miss.Code Ann. § 43-19-101(1) (Rev.2000). If the chancellor awards a different amount, the court should make a written finding on the record explaining the deviation. Miss.Code Ann. § 43-19-101(2).

¶ 9. The appellate record does not contain the divorce decree. However, in a pleading that is in the record, Ms. Harper acknowledges that Mr. Halle was required to pay $580 per month in child support. The chancellor stated in his order on modification that Mr. Halle’s income was reduced by approximately one-half since the final decree of divorce. However, there is no evidence showing what his income is; instead, there are only allegations in briefs.

¶ 10. We also know that the children’s tuition costs have been reduced by approximately one half since the final divorce decree. The school awarded a grant to cover some of the tuition since Ms. Harper does volunteer work at the school. The chancellor discussed this in his order as one of the reasons to retain Mr. Halle’s obligation to pay tuition despite some reduction in his income. However, we do not know what the tuition costs actually are.

¶ 11. We are unable to determine from this record if Mr. Halle is paying more than 22 percent of his adjusted gross income in child support. The final divorce decree is not included in this record nor is any evidence of Mr. Halle’s income or the children’s tuition expenses. The chancellor knew that Mr. Halle’s income had been reduced and still ordered him to make the tuition payments, which were apparently less than originally had been required because of the school’s grant.

¶ 12. Based on the record before us, we find no basis on which to determine that Mr. Halle is being required to pay more than the guidelines suggest as child support — which would include primary and secondary school tuition. Even if this is more, we do not know if the final decree properly justified a deviation from the guideline. Absent any proof of error, we hold that there is no error.

¶ 13. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Anthony McCRAY, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CP-02044-COA.
    Court of Appeals of Mississippi.
    March 30, 2004.

      Anthony McCray, appellant, pro se.
    Office of the Attorney General by Charles W. Maris, Jackson, attorney for appellee.
    Before KING, P.J., THOMAS and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. Anthony McCray pled guilty to murder and was sentenced to life in prison. McCray filed a motion for post-conviction relief which was summarily denied by the trial court. Feeling aggrieved by that decision, McCray appeals to this Court pro se and in forma pauperis seeking review of the following issues:

I. DID THE TRIAL COURT ERR IN DENYING MCCRAY A TRANSCRIPT OF HIS PLEA HEARING?
II. DID THE TRIAL COURT ERR IN DENYING MCCRAY’S MOTION FOR POST-CONVICTION RELIEF?

STATEMENT OF FACTS

¶ 2. On March 16, 2001, McCray was indicted for the crime of murder. McCray initially entered a plea of not guilty, but the record reveals that an order for a change of plea and sentence was later entered on August 14, 2001. On October 7, 2002, McCray filed a motion for post-conviction relief. In his motion, McCray claimed he was entitled to relief for four reasons. First, the trial court was without jurisdiction to impose a sentence. Second, the statute under which the convictions and sentences were obtained was unconstitutional. Third, the sentence exceeded the maximum authorized by law. Finally, court-appointed counsel rendered ineffective assistance.

¶ 3. On November 21, 2002, the trial court summarily denied relief, finding that McCray had failed to allege with specificity and detail any asserted error of his attorney or any other cause or prejudice which would entitle him to relief under the post-conviction relief act. On November 21, 2002, McCray filed a motion for record requesting all of the court documents and transcripts related to his case. The record does not reflect whether the trial court ever ruled on this motion.

¶ 4. On December 3, 2002, McCray filed a motion for reconsideration. In this motion, McCray added the claim of an involuntary guilty plea. Again, the record does not reflect whether the trial court ever ruled on this motion. On December 13, 2002, McCray filed a notice of appeal.

¶ 5. On appeal, McCray has abandoned the first three claims raised in his original motion for post-conviction relief, but has decided to continue the pursuit of his ineffective assistance of counsel claim and his involuntary plea claim. In addition, McCray claims that the trial court erred in denying him a free copy of his plea hearing transcript.

LEGAL ANALYSIS

I. DID THE TRIAL COURT ERR IN DENYING MCCRAY A TRANSCRIPT OF HIS PLEA HEARING?

¶ 6. McCray argues he is entitled to a free copy of his plea hearing transcript. We disagree. We note that McCray’s motion for record was not filed until after the trial judge denied McCray’s motion for post-conviction relief. Judge Smith summarily denied McCray’s motion for post-conviction relief on November 15, 2002. Six days later on November 21, McCray filed his motion for record in order to amend his original motion. As a result, the motion for record was untimely.

¶ 7. Moreover, our record does not reflect whether McCray ever obtained a ruling on the motion. It is the duty of the movant to obtain a ruling under these circumstances and if he fails to do so, it constitutes a waiver. Milliorn v. State, 755 So.2d 1217, 1221 (¶ 12) (Miss.Ct.App. 1999).

¶ 8. Assuming arguendo that McCray’s motion for record was timely filed and denied, we find no error. In Fleming v. State, 553 So.2d 505 (Miss. 1989), the Mississippi Supreme Court dismissed an appeal based on the trial court’s denial of a request for a free transcript. Like Fleming, McCray has failed to show that the documents sought are necessary to decide a specific issue. Id. at 507. McCray’s motion for record merely stated that he desired “a copy of his record and transcripts of all court proceedings to sustain and amend to his original petition.” An inmate is not entitled to a free transcript in a post-conviction relief setting if his post-conviction motion cannot withstand summary dismissal under Section 99-39-11(2) of the Mississippi Code Annotated. Roland v. State, 666 So.2d 747, 751 (Miss.1995). The law simply does not require the State to furnish these documents free of charge under these circumstances. Fleming, 553 So.2d at 507. We find McCray’s first issue to be without merit.

II. DID THE TRIAL COURT ERR IN DENYING MCCRAYS MOTION FOR POST-CONVICTION RELIEF?

¶ 9. When reviewing a lower court’s decision to deny a motion for post-conviction relief, we will not disturb the trial court’s factual findings unless they are clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). McCray attempted to raise an involuntary guilty plea for the first time in his motion for reconsideration and now attempts to raise it again in his amended and rebuttal briefs. McCray chose not to raise it in his original motion for post-conviction relief and now is precluded from raising it before this Court. Rivers v. State, 807 So.2d 1280, 1281(¶ 5) (Miss.Ct.App.2002).

¶ 10. Also, as noted above, McCray has abandoned on appeal every claim in his original motion for post-conviction relief with the exception of his ineffective assistance of counsel claim. Specifically, McCray claims that his counsel “failed to investigate,” “failed to present substantial mitigating evidence to the sentencing [c]ourt,” and “coerced [McCray] into entering a plea of guilty.”

¶ 11. In order to defeat summary dismissal of the ineffective assistance of counsel claim under Mississippi Code Annotated Section 99-39-11(2), the allegation must be alleged with specificity. Ford v. State, 708 So.2d 73, 75(¶ 8) (Miss.1998). In other words, McCray must specifically allege facts showing that effective assistance of counsel was not in fact rendered, and McCray must allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the trial court decision would have been different. Smith v. State, 434 So.2d 212, 219 (Miss.1983). However, McCray has not alleged with any degree of specificity what constituted the mitigating evidence or the manner in which his counsel coerced him. Such naked allegations do not supply the “specificity and detail” required to establish a prima facie showing. Ford, 708 So.2d at (¶ 8).

¶ 12. McCray argues that he could not supply the requisite specificity and detail because he did not have a transcript of his guilty plea hearing. However, McCray’s argument on appeal regarding his counsel’s performance deals with the allegation that his counsel failed to investigate the fact that no murder occurred in this case. This alleged failure would not have been manifested at the plea hearing. Moreover, McCray has not demonstrated the requisite need to entitle him to a free copy of his transcript. Finally, McCray’s allegations of ineffective assistance of counsel are contradicted by the record. As a result, we find McCray’s final issue to be without merit.

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

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


author: WOODALL, Justice.

text:
    Blanche Taylor MORGAN et al. v. EXXON CORPORATION et al.
    1012345.
    Supreme Court of Alabama.
    June 13, 2003.

      William M. Cunningham, Jr., of Burns, Cunningham, Mackey & Fillingim, P.C., Mobile; William L. Utsey of Utsey & Ut-sey, Butler; and Stuart H. Smith of Smith & Harang, New Orleans, Louisiana, for appellants.
    Aan C. Christian of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellee Exxon Corporation.
    Halron W. Turner, Chatom; and Jeffery P. Reynolds and Benjamin Z. Wise, Jackson, Mississippi, for appellees Mobil Oil Corporation and Marshall Oglesby.
   WOODALL, Justice.

Blanche Taylor Morgan and her two adult children, Kenneth Morgan and Ellen Morgan Caudle (hereinafter referred to collectively as “the Morgans”), appeal from summary judgments in favor of Exxon Corporation (“Exxon”), Mobil Oil Corporation (“Mobil”), and Marshall Oglesby (Exxon, Mobil, and Marshall Oglesby are hereinafter referred to collectively as “the Companies”) in the Morgans’ action against the Companies for damages allegedly resulting from the operation of oil wells on the Morgans’ property. We affirm.

This action began on July 19,1996, when the Morgans filed an eight-count complaint against the Companies and other defendants not involved in this appeal; the Companies and the other defendants at one time operated six oil wells on the Morgans’ property. The complaint alleged that “at all times material and pertinent” the Companies “owned and/or were engaged in the business of operating certain oil, gas and/or saltwater disposal wells, production equipment, disposal pits, and other facilities” on the Morgans’ property. In the process of those operations, the complaint alleged, the Companies “willfully, wantonly, recklessly and negligently caused the [Morgans’] real and personal property to become contaminated with radioactive scales, residues, precipitates and other harmful and hazardous materials.” Elsewhere, the complaint alleged that the contamination consisted of “salt water, oil and grease, heavy metals and other harmful and hazardous substances.” The Morgans sought relief on theories of (1) negligence, (2) nuisance, (3) trespass to land, (4) breach of contract, (5) waste, (6) strict liability, (7) the tort of outrage, and (8) conspiracy. They sought recovery of the “costs' of site investigation, monitoring, cleanup and/or remediation, [and] loss of property values.” They also sought damages for emotional distress and punitive damages. Moreover, the complaint contained the following clause:

“Disclaimer of Federal Claims
“42. Plaintiffs hereby assert that they are making no claim in this action under any federal law or statute.”

The Companies asserted the rule of repose as an affirmative defense. In a joint summary-judgment motion, Mobil and Marshall Oglesby asserted that Mobil has not “operated any well at issue in this lawsuit since the 1960’s,” and that Marshall Oglesby has not operated any such well “since the early 1970’s.” In its summary-judgment motion, Exxon asserted that neither it, nor any predecessor in interest, has owned or operated any relevant well since October 1, 1969. Thus, the Companies argued, the claims against them are barred by the rule of repose. In response to these arguments, the Morgans asserted that the application of the rule of repose to their claims is preempted by the Comprehensive Environmental Response, Compensation, and Liability Act, codified as amended by the Superfund Amendments and Reauthorization Act of 1986, at 42 U.S.C. § 9601 et seq. (“CERCLA”).

In three separate orders, dated August 7, 2002, the trial court granted the Companies’ summary-judgment motions, solely on the rule-of-repose ground. In each order, the trial court stated: “The court has not considered the other grounds raised by [the Companies] as to [the Morgans’] claims, and expressly reserves judgment with respect thereto.” The trial court certified the orders as final judgments, pursuant to Ala. R. Civ. P. 54(b), and the Morgans appealed.

On appeal, the Morgans contend that the trial court erred in holding that their claims were barred by the rule of repose. This is so, because, they insist, Alabama’s rule of repose is preempted by 42 U.S.C. § 9658(a)(1), which provides:

“In the case of any action brought under State law for [1] personal injury, or property damages, which are caused or contributed to by exposure to any [2] hazardous substance, or pollutant or contaminant, [3] released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute.”

(Emphasis added.)

The Companies, on the other hand, contend that the Morgans have failed to demonstrate that § 9658 applies to this action. They base this contention on two grounds, namely, (1) that the Morgans have failed to carry their burden of proving the elements of § 9658, and (2) that § 9658 does not apply to state-law claims in the absence of an asserted CERCLA claim. In order to address the contentions of the parties, we must first discuss the relationship between the rule of repose and § 9658.

I. The Rule of Repose and § 9658 Preemption

“Application of [Alabama’s] rule of repose has only one element — the passage of twenty years time from the moment that the actions giving rise to the claim occurred — and, if that time has elapsed, no claim can be pursued.” Moore v. Liberty Nat’l Ins. Co., 108 F.Supp.2d 1266, 1275 (N.D.Ala.2000) (applying Alabama law) (emphasis added), aff'd, 267 F.3d 1209 (11th Cir.2001). See also Tierce v. Ellis, 624 So.2d 553, 554 (Ala.1993). “In some instances, this point in time may be the same as the date of the ‘accrual’ of a claim. However, ... repose does not depend on ‘accrual,’ because the concept of accrual sometimes incorporates other factors, such as notice, knowledge, or discovery.” Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 764 n. 2 (Ala.2002). See also Merrill v. Merrill, 260 Ala. 408, 411, 71 So.2d 44, 45-46 (1954). It is undisputed that the Companies’ activities at the well sites had ceased by the early 1970s, that is, more than 20 years before the commencement of this action. Thus, the Morgans’ claims against the Companies are barred by the rule of repose, unless § 9658 provides relief from the operation of the rule.

Section 9658 “purports to preempt the accrual date of any state limitations period which provides for a commencement date earlier than the federally required commencement date.” Van Delhotal, Reexamining CERCLA Section [9658]: Federal Preemption of State Limitations Periods, 34 Washburn L.J. 415, 416 (1995)(footnote omitted). The “federally required commencement date” (the “FRCD”) is defined as “the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages referred to in subsection (a)(1) of this section were caused or contributed to by the hazardous substance or pollutant or contaminant concerned.” CERCLA, 42 U.S.C. § 9658(b)(4)(A). Thus, contrary to Alabama’s rule of repose, which is triggered merely by the alleged wrongful conduct of the defendant, the FRCD turns on the accrual of a claim, which is defined in terms of discovery.

“Under CERCLA,” the Morgans contend, their “claims are not time barred because Kenneth Morgan first discovered the contamination on the Morgan property in 1994, first had his property tested for hazardous substances in 1995, and filed this lawsuit on July 19, 1996.” Morgans’ brief, at 18-19. More specifically, Kenneth Morgan testified by affidavit that it was “[i]n or around November 1994, [when he] discovered that [the] property was possibly contaminated with oil field waste.” The trial court implicitly held that § 9658 did not apply to the Morgans’ claims.

II. Applicability of § 9658 and the FRCD

All parties rely on Becton v. Rhone-Poulenc, Inc., 706 So.2d 1134 (Ala. 1997). The Companies’ position — for which they cite Becton — is that a plaintiff must, in order to invoke the FRCD to preserve its state-law claims, have asserted a valid CERCLA claim against the defendant. Taking the opposite position, the Morgans state: “The Becton court conclude[d] only that a claim must relate to the remedies CERCLA provides and/or must be ‘within the purview of CERC-LA.’ ” Morgans’ brief, at 9 (quoting Becton, 706 So.2d at 1140) (emphasis added).

In Becton, West Berry Becton sued various employees of Courtaulds Fibers, Inc., and others for personal injuries allegedly sustained in connection with his employment, through “his continuous exposure to carbon disulfide (‘CS2’),” 706 So.2d at 1135, primarily in “the interior of the building where he was working.” Id. at 1141. The complaint was filed “almost 9 years” after Becton’s last exposure to CS2. Id. at 1135.

The defendants moved for summary judgments, on the ground that Becton’s claims were barred by the applicable statute of limitations. The trial court entered summary judgments in favor of some of the defendants, and Becton appealed, contending, as do the Morgans here, that § 9658 preempted the state statute of limitations. This Court rejected Becton’s contentions and affirmed the summary judgments.

The issue on which the Court focused was whether Becton’s workplace exposure to CS2 constituted a “release into the environment,” as that term is used in § 9658. The Court discussed cases involving analogous claims, acknowledging that the jurisdictions had not applied § 9658 consistently. It followed a line of cases that have “rejected the application of [§ 9658] to situations where exposure to a hazardous substance occurs within the confines of the workplace [on the ground that] a release in the workplace is not a release into the environment, as contemplated by § 9658.” 706 So.2d at 1141 (emphasis added).

Ultimately, Becton was decided on the ground that there had been no “release into the environment.” 706 So.2d at 1141. Thus, the Court’s implicit holding was simply that a necessary element of § 9658 had not been proven. Indeed, relying on Bec-ton, the Morgans concede that they are required to “present substantial evidence on three critical factors: 1) that [then-damages] were caused by exposure to a 2) hazardous substance 3) released into the environment.” Morgans’ brief, at 26. “These factors,” the Morgans admit, “must be present to invoke the [FRCD].” Id. (emphasis added). We need not decide whether the Morgans must actually assert a CERCLA claim, as the Companies contend, because, like the plaintiff in Becton, the Morgans have failed to present substantial evidence of a necessary element of § 9658.

The Morgans presented the report of W. Clay Kimbrell, of Rapiere Resources Company, which identified at the relevant sites the presence of petroleum hydrocarbons, chlorides, crude oil, lead, “saltwater erosion” arsenic, benzene, toluene, xylene, zinc, and “normally occurring radioactive material” (“NORM”). However, the record contains no evidence of the source of any of those materials. For the following reasons, such evidence is essential to satisfy the second element of § 9658.

As the Morgans concede, § 9658 applies to their claims only if they offer substantial evidence that the damage to their property was caused by the “release of a hazardous substance.” CERCLA defines a “hazardous substance” in 42 U.S.C. § 9601(14). That section provides:

“(14) The term ‘hazardous substance’ means (A) any substance designated pursuant to section 1321(b)(2)(A) of Title 33, (B) any element, compound, mixture, solution, or substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 U.S.C.A. § 6921] (but not including any waste the regulation of which under the Solid Waste Disposal Act [42 U.S.C.A. § 6901 et seq.] has been suspended by Act of Congress), (D) any toxic pollutant listed under section 1317(a) of Title 33, (E) any hazardous air pollutant listed under section 112 of the Clean Air Act [42 U.S.C.A. § 7412], and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 2606 of Title 15. The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph, and the term does not include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).”

(Emphasis added.) Similarly, § 9601(33) excludes from the definition of “pollutant or contaminant” “petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under sub-paragraphs (A) through (F) of paragraph (14).” Thus, subsections (14) and (33) of § 9601 expressly exclude from CERCLA coverage petroleum, crude oil, and every “fraction thereof’ (“the petroleum exclusion”).

The Morgans assert that some of the materials of which they complain, namely, NORM, arsenic, lead, and zinc, “are specifically listed, under CERCLA, as hazardous substances.” Morgans’ brief, at 20. It is well settled, however, that “[t]he petroleum exclusion includes fuel oil and leaded gasoline ..., and any indigenous components in refined or unrefined gasoline or any such components added in the refining process even if the components would by themselves be considered hazardous substances.” Two Rivers Terminal, L.P. v. Chevron USA, Inc., 96 F.Supp.2d 432, 443 (M.D.Pa.2000) (emphasis added). The exclusion may be avoided upon proof that “the contaminants appear at the Site ‘in excess of the amounts that would have occurred in petroleum during the oil refining process.’ ” Portsmouth Redev. & Hous. Auth. v. BMI Apartments Assoc., 827 F.Supp. 354, 356 (E.D.Va.1993) (emphasis added) (quoting Washington v. Time Oil Co., 687 F.Supp. 529, 532 (W.D.Wash.1988)).

The Morgans cite to nothing in the record demonstrating that the materials of which they complain are not indigenous to petroleum. This is particularly significant in view of the fact that at least one court has judicially noticed that several of the materials, namely, “benzene, toluene, xylene, ethylbenzene and lead,” are indigenous to petroleum. Wilshire Westwood Assocs. v. Atlantic Richfield Corp., 881 F.2d 801, 803 (9th Cir.1989); see also Ekotek Site PRP Committee v. Self, 932 F.Supp. 1319, 1326-27 (D.Utah 1996) (“ ‘[The indigenous] constituents of petroleum may typically include metals (including arsenic, barium, cadmium, chronium, lead and zinc), benzene, toluene,- ethylben-zenes, xylenes, naphthalene and poly nuclear aromatic compounds.... ’ ”). Similarly, they cite no evidence that any of the materials exist at the sites in levels that “exceed those normally found in [petroleum] fractions.” Portsmouth Redev. & Hous. Auth., 827 F.Supp. at 356-57. The complaint alleges only that the Companies “owned and/or were engaged in the business of operating certain oil, gas and/or saltwater disposal wells, production equipment, disposal pits, and other facilities.” In short, the Morgans have failed to produce substantial evidence tending to show which, if any, of the offending materials are “hazardous substances,” in the context of oil production.

Curiously, having conceded that they must “present substantial evidence” on the “critical” hazardous-substance element of § 9658, Morgans’ brief, at 26, the Morgans ultimately contend that the- Companies bear the burden of demonstrating the applicability of the petroleum exclusion. Id. at 21-22. We disagree with this contention.

It is “well settled that where the plaintiff in stating his cause of action must affirm a negative, he has the burden of proving the negative averment unless the facts are peculiarly within the knowledge of the defendant.” Protective Life Ins. Co. v. Swink, 222 Ala. 496, 497, 132 So. 728, 728 (1931) (the plaintiff beneficiary of a life-insurance policy providing double indemnity “in the event (the death of the insured) resulted from bodily injury .... directly and independently of all other causes, affected solely through external, violent and accidental means,” 222 Ala. at 498, 132 So. at 729, had the burden to prove that the insured’s death was not a suicide). “This rule applies alike to pleading statutes or contracts, where the plaintiff relies on a general clause embodying an exception.” 222 Ala. at 497,-132 So. at 728. Otherwise stated, “one who relies on an exception to a general rule or statute has the burden of proving that the case falls within the exception, unless the nonexistence of the exception is made a condition of the application of the rule.” 31A C.J.S. Evidence § 121, at 256 (1996) (emphasis added) (footnotes omitted).

Section 9658 provides the quintessential example of the emphasized portion of the general rule stated above. Under § 9658, the plaintiffs access to the FRCD turns on proof that the alleged injury was caused by “exposure to any hazardous substance, or pollutant or contaminant.” As to those elements, the plaintiff bears the burden of persuasion. Thus, in order to carry its burden, the plaintiff must prove a negative, that is, it must prove that the materials of which it complains are not within the petroleum exclusion. In other words, the plaintiff must prove that the allegedly toxic materials fall within CERCLA’s definition of actionable, substances, and, ipso facto, outside of the petroleum exclusion. Cf. United States v. Poly-Carb, Inc., 951 F.Supp. 1518, 1526 n. 6 (D.Nev.1996) (the CERCLA plaintiff bears the burden of persuasion that the petroleum exclusion does not apply); Dana Corp. v. American Standard, Inc., 866 F.Supp. 1481, 1508 (N.D.Ind.1994); Carol Barry, CERCLA’s Petroleum Exclusion: Whose Burden Is it Anyway?, 26 Envtl. L. Rep. 10,479 (September 1996).

Moreover, 42 U.S.C. § 9607, which sets forth the general bases of CERCLA liability, specifically lists affirmative defenses. See § 9607(b). The petroleum exclusion is not among those defenses. See also Poly-Carb, 951 F.Supp. at 1526 n. 6. For these reasons, we disagree with those cases that have required the defendant to prove the applicability of the petroleum exclusion. See, e.g., Johnson v. James Langley Operating Co., 226 F.3d 957, 963 n. 4 (8th Cir.2000); Tosco Corp. v. Koch Indus., Inc., 216 F.3d 886, 894 n. 5 (10th Cir.2000).

III. Summary

Because the Morgans failed to present substantial evidence of an element of § 9658, the FRCD does not apply to their claims. Therefore, their claims against the Companies are barred by the rule of repose. Because the trial court did not err in entering summary judgments for the Companies based on the rule of repose, those judgments are affirmed.

AFFIRMED.

MOORE, C.J., and HOUSTON, SEE, BROWN, HARWOOD, and STUART, 33., concur.

JOHNSTONE, J., dissents.

      . We have considered the Morgans' other arguments, and we conclude that they are without merit.