author: BARNES, J.,

text:
    Lacory HARRIS a/k/a Lecorry Harris Laccory Fredreko a/k/a Cory Harris a/k/a Lil C, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01695-COA.
    Court of Appeals of Mississippi.
    April 1, 2008.

      James Kevin Rundlett, Jackson, attorney for appellant.
    Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before LEE, P.J., CHANDLER and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Lacory Harris was convicted in the Hinds County Circuit Court of two counts of aggravated assault for using an automobile to cause injury to his former girlfriend and her young daughter. He was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC) on each count with the sentences to run concurrently with one another and consecutively to a Madison County sentence. Aggrieved, Harris appeals on the following grounds: (1) the trial court erred in allowing the prosecution to display the child to the jury; (2) the trial court erred in admitting highly prejudicial and unreliable hearsay statements into evidence as an “excited utterance”; (3) the trial court erred in refusing to grant Harris’s motion for a new trial; and (4) trial counsel rendered ineffective assistance. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Shantanner Montgomery testified that the romantic relationship between her and Harris had been over for approximately five months when, on September 16, 2001, Harris deliberately caused an automobile wreck, which resulted in serious injuries to both Montgomery and her fifteen-month-old daughter, Kennedy.

¶ 3. On the Friday before the wreck, Montgomery received a telephone call from Harris at her work place in which Harris told her that he was going to get her “one way or the other.” She testified that she perceived the call as a threat. On the following Sunday morning at 6:30 a.m., Harris appeared without invitation at Montgomery’s house on West Capitol Street in Jackson, Mississippi, where she lived with her brother. Montgomery testified that Harris was calm and said that he wanted to talk to her. Before letting Harris in, Montgomery informed her brother that Harris was there and that she was going to talk with him. Montgomery’s brother confirmed this in his testimony. Montgomery stated that she and Harris talked for about twenty minutes and that she told him she had moved on with her life. After the discussion, Harris asked her to take him to his mother’s house. Montgomery said she agreed to do so because Harris had appeared calm during their talk. She placed her daughter in the back seat of her SUV, and Harris sat in the front seat. Montgomery testified that about fifteen minutes into the drive, as the vehicle was on the Interstate 220, Harris had been singing the “patty cake song” along with her daughter when, without warning, he turned to Montgomery and said, “Well, you know I’m going to have to kill you. You know I’m going to have to hurt you in the worse way possible.” He then grabbed the steering wheel and jerked it, causing the SUV to move into the right-hand lane, then flip and roll over four or five times. Montgomery and her child were thrown from the vehicle and severely injured. Harris fled the scene.

¶ 4. At trial, three “Good Samaritans” and the Jackson police officers who investigated the wreck confirmed much of Montgomery’s recollection of the events. Sherry Green, who was driving directly behind Montgomery’s vehicle, stated that as the SUV flipped, people and things went flying out of the vehicle. Green confirmed Montgomery’s testimony as to Harris’s flight from the scene. She testified that she saw a young man running from the wreck and asked him if he needed help, but he just kept running. Montgomery stated that when she found her fifteen-month-old daughter, one of the child’s legs was completely severed and the foot on her other leg was dangling. Green, who was a licensed practical nurse, stated that she took a scarf from a bystander and tied it around the toddler’s leg to stop the bleeding and covered the child. According to Green, Montgomery was so hysterical that she shook her and told her that she had to be quiet so that the child would become quiet. Green said that she told Montgomery to lie beside the baby to keep the child from going into shock. Green testified that Montgomery told her that Harris had snatched the wheel from her and caused the accident.

¶ 5. Patricia Hayes, a registered nurse who also stopped at the scene, testified that when she arrived other people were already there, and the injured mother and child were on the ground. She could see that the child’s leg had been cut off. Hayes stated that Montgomery was very upset and crying. Hayes testified that Montgomery said that the man who was riding with her had grabbed the steering wheel and caused the SUV to swerve off the road, causing the wreck. Hayes testified that she checked the scarf that had been applied to the child’s leg, tightened it, and made sure that pressure was applied “so that the baby didn’t bleed to death.” A local minister, Rev. Jeffrey Stallworth, also stopped to render assistance shortly after the wreck occurred. According to Rev. Stallworth, when he arrived on the scene he saw the mother lying on the ground with the child; the mother was very upset and was saying “things like he did this to me.” Rev. Stallworth also recounted that Montgomery told him that the man who was riding with her told her that he had to hurt her and then pulled the steering wheel from her, causing the wreck. Jackson Police Officer Jackie Watson arrived at the scene and took a statement from Montgomery, who told her that Harris had grabbed the steering wheel, causing the SUV to wreck. Detective Azell Smith testified that Montgomery told her that Harris suddenly grabbed the steering wheel; the SUV flipped; she and the child were thrown out; and Harris left the scene, running. Detective Smith was unable to locate Harris to take his statement.

¶ 6. As a result of the wreck, both of Montgomery’s arms were broken in eight-to-ten places, and she had to be placed in a full body cast. The toddler, Kennedy, had her left leg amputated, but the physicians were able to reattach the foot on her other leg.

¶ 7. Harris’s testimony of the events, not surprisingly, differed significantly. He stated that he spent the night before the wreck with Montgomery and that on the morning of the wreck, Montgomery was acting unusual. Harris related an earlier event in which Montgomery chased him and the mother of his child at a high rate of speed after he and Montgomery had broken up. Harris stated that on the day of the wreck he asked Montgomery to take him to his brother’s house, but instead, Montgomery got on the interstate. According to Harris, he kept telling her to strap Kennedy into her baby seat “cause I don’t want no confrontation with the police behind us seeing the thing up on the baby seat and pulling us over about the baby not being strapped down .... [bjecause at the time I had two warrants out for my arrest and I wasn’t trying to get in no confrontation with the law.” He testified that she became angry and told him not to tell her how to treat her own child. Harris stated that he asked to use her cell phone, and he called his “fiancée at the time,” Antoinette. He claimed that when Montgomery heard him talking to Antoinette, she grabbed for her cell phone and lost control of the SUV, causing the wreck. Harris denied jerking the steering wheel. He said that after the wreck he ran for help to a nearby gas station, but he did not actually call anyone for help; instead he told the people at the station about the wreck. He then thought about the situation, “I’m here on the run and they got warrants out for my arrest[,] so I left and didn’t come back to the scene.” Harris was arrested later that week for a Madison County cocaine possession charge and did not learn of the aggravated assault charges until 2003.

¶ 8. After less than an hour of deliberations, the jury returned guilty verdicts on both counts of aggravated assault. Harris was sentenced to twenty years in the custody of the MDOC as a habitual offender on each count with the sentences to run concurrently with one another and consecutively to his sentence in Madison County. The trial court denied post-trial motions, and this appeal ensued.

DISCUSSION

I. Whether the trial court erred by allowing the prosecution to display the injured child to the jury.

¶ 9. During its case-in-chief, the State asked Montgomery what injuries she and her child suffered as a result of the wreck. Montgomery testified that she was in a full body cast and had both arms broken in eight-to-ten places. The State asked, and the trial court agreed to allow Montgomery to bring the child before the jury as she testified about the injuries the child suffered as a result of the wreck. Harris objected, but he stated no reason for the objection.

¶ 10. Harris argues that allowing the child to appear before the jury was more prejudicial than probative and should have been precluded under Rule 403 of the Mississippi Rules of Evidence. He argues that “displaying” a severely injured small child before the jury is highly emotional and led the jury to base its verdict on sympathy rather than on the facts. Harris contends that the child’s injuries were not disputed and could have been established by stipulation, medical records, or testimony. He asks this Court to engage in a Rule 403 balancing process, weighing whether the probative value of the jury’s viewing the injured child was outweighed by its potential prejudice to Harris.

¶ 11. After conducting the Rule 403 balancing inquiry, we find no abuse of discretion on the part of the trial judge in allowing the child to be displayed to the jury. First, the Mississippi Constitution guarantees the victim of a crime the right to be present and be heard during the criminal proceedings. Miss. Const, art. 3, § 26A. Likewise, Mississippi Code Anno-fated section 99-43-21 (Rev.2007) provides that: “[t]he victim has the right to be present throughout all criminal proceedings^]” Second, Mississippi Code Annotated section 97-3-7(2) (2000), which sets forth the elements of aggravated assault, states as follows in pertinent part:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm....

Dunn v. State, 891 So.2d 822, 825 (¶ 20) (Miss.2005) (quoting Miss.Code Ann. § 97-3-7(2) (2000)). Therefore, because the State was required to offer proof of serious bodily injury in order to convict Harris of aggravated assault, we cannot say that the jury’s viewing the child’s actual injuries was devoid of probative value. Finally, under these circumstances, we do not find that the trial court abused its discretion in finding that the probative value of the jury’s viewing the child’s injuries was not substantially outweighed by unfair prejudice to Harris. Therefore, this issue is without merit.

II. Whether the trial court erred in admitting highly prejudicial and unreliable hearsay statements into evidence as an “excited utterance.”

¶ 12. Harris argues that the only witness who gave testimony that he committed a crime was Montgomery, and the rest of the State’s witnesses were erroneously allowed, over objection, to give hearsay evidence of his guilt.

¶ 13. The testimonies to which Harris objects are primarily those of the persons who responded to the accident scene shortly after the wreck. They were: Green, the nurse who saw the accident, bound the wounds of the injured child, and described Montgomery as so hysterical she had to be shaken; Hayes, another nurse who found Montgomery “very upset and crying” on the ground, cuddling her injured daughter; Rev. Stallworth, who arrived on the scene shortly after the wreck and found Montgomery “very upset” and talking repeatedly about her baby; and Watson, the Jackson police officer who investigated the scene of the wreck before the injured parties were taken to the hospital.

¶ 14. Harris contends that the excited utterance exception to the hearsay rule should not apply because when Montgomery made the statements to the bystanders, she was no longer under the stress of the accident; instead, she had time to invent a story to blame Harris for the accident she caused.

¶ 15. The standard of review for admissibility of evidence is abuse of discretion. Ellis v. State, 934 So.2d 1000, 1004 (¶ 17) (Miss.2006). This Court will not order a reversal based on a ruling that allowed or excluded evidence unless a substantial right of the defendant was affected by the ruling M.R.E. 103(a).

¶ 16. Rule 801(c) of the Mississippi Rules of Evidence defines hearsay as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). Clearly, the testimonies of those witnesses who came to Montgomery’s aid and of the investigating police officers regarding Harris causing the wreck were hearsay testimony. None had independent knowledge of Harris’s actions of jerking the steering wheel. However, Rule 803(2) of the Mississippi Rules of Evidence provides an exception to the exclusion of hearsay based upon “excited utterance[s].” The exception applies to statements “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” M.R.E. 803(2). “The reliability of an excited utterance is based on the premise that circumstances may place the declarant in such an excited state as to temporarily impede the capacity for reflection.” Smith v. State, 733 So.2d 793, 798-99 (¶ 20) (Miss.1999). In evaluating whether a statement qualifies as an excited utterance, “[i]t is important that there has been no intervening matter to eliminate the state of excitement and call into question the reliability of the utterance.” McCoy v. State, 878 So.2d 167, 173 (¶ 12) (Miss.Ct.App.2004) (citing Berry v. State, 611 So.2d 924, 926 (Miss.1992)). Spontaneity is essential for a statement to be admitted into evidence as an excited utterance. M.R.E. 803(2) cmt.

¶ 17. Applying these rules to the testimony given by the challenged declarants, we find that all of their hearsay statements fall under the excited utterance exception. Green saw the accident occur and was the first one on the scene. She found a hysterical Montgomery looking for her child, who had been thrown from the SUV. Green testified that Montgomery was so upset that she had to shake her in order to calm her so she could care for the injured child. Hayes and Rev. Stallworth arrived a little later, but Montgomery, according to their testimony, was still very upset and crying as she held her child. Officer Watson, who investigated the wreck, testified that Montgomery was upset when she took her statement incriminating Harris. Seriously injured by the wreck and suffering from multiple breaks and fractures, Montgomery gave statements to the three “Good Samaritans” and Officer Watson that Harris caused the wreck by intentionally grabbing the steering wheel. Her statements were made shortly after the trauma of the wreck in which she sustained injuries and after searching for and finding her small daughter seriously injured. Based on these facts, we find that the statements Montgomery made were excited utterances. Montgomery had no time for conscious reflection as Harris claims. Accordingly, this error is without merit.

¶ 18. Harris also claims error regarding the testimony of Tonya Chambers, another police officer who testified about photographs she took at the scene. Chambers’s testimony did not incriminate Harris and only described the photographs she took of the wrecked SUV. Further, and most importantly, Harris made no contemporaneous objection to Chambers’s testimony on any grounds. “It is axiomatic that a litigant is required to make a timely objection.” Washington v. State, 957 So.2d 426, 429 (¶ 13) (Miss.Ct.App.2007) (quoting Smith v. State, 797 So.2d 854, 856 (¶ 7) (Miss.2001)). The failure to make a contemporaneous objection procedurally bars any allegation of error. Id. Accordingly, this issue is without merit.

III. Whether the trial court erred by refusing to grant Harris’s motion for a new trial.

¶ 19. Harris claims that his conviction was against the overwhelming weight of the evidence and that he is therefore entitled to a new trial. He argues that the jury was so inflamed by bias and prejudice that they were ready to convict him from the beginning of the trial.

¶ 20. “A motion for new trial challenges the weight of the evidence.” Dilworth v. State, 909 So.2d 731, 737 (¶ 20) (Miss.2005). We will only reverse a decision to deny a new trial if the trial court abused its discretion in denying the new trial motion. Id. In considering the motion, the Court weighs the evidence in the light most favorable to the verdict. Id. at (¶ 21). It is only in “exceptional cases in which the evidence preponderates heavily against the verdict” that the trial court should invade the province of the jury and grant a new trial. Id. (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)).

¶21. Despite Harris’s protestations to the contrary, we find that the trial court did not err in failing to grant him a new trial. Harris claims that after the vehicle wreck, Montgomery fabricated a story to blame him for the wreck. He contends that, in order to convict him, all the jury had to hear were three “inconsequential bits of information”: (1) there was a severely injured infant; (2) Harris was a womanizing ex-convict; and (3) he left the scene of the accident. According to Harris, Montgomery had a “manifest interest in avoiding blame for the accident” due to her failure to restrain her child properly, and therefore, her testimony was not credible. Harris also contends that Montgomery’s testimony is “inherently unlikely” and unreliable because it was not supported by any physical evidence or corroborating witnesses.

¶ 22. However, Harris’s argument misses the salient point: the jury found that he deliberately caused the wreck that maimed the child and seriously injured her mother. The jury made a credibility decision between Harris’s version of events and Montgomery’s version and accepted Montgomery’s. The jury, as the finder of fact, was completely within its authority in making the finding. It is well settled that the testimony of a single uncorroborated witness is sufficient to sustain a conviction even though there may be more than one person testifying to the contrary. Williams v. State, 512 So.2d 666, 670 (Miss.1987). Here, however, there was more than just Montgomery’s testimony as to Harris’s guilt. The three “Good Samaritans” testified that a hysterical Montgomery told them that Harris deliberately jerked the steering wheel to cause the wreck. Also, the police officer, who investigated the wreck and who encountered a badly injured mother holding her recently dismembered child, testified that Montgomery told her Harris had deliberately caused the wreck. The jury accepted Montgomery’s testimony that Harris kept his vow “to hurt [her] in the worse way possible” and did so when he caused the wreck that injured her and handicapped her child forever. Accordingly, we find no error in the trial court’s failure to grant Harris a new trial. This issue is without merit.

IV. Whether Harris’s trial counsel rendered ineffective assistance of counsel.

¶ 23. Harris contends that his trial counsel was ineffective; he raises this issue for the first time on direct appeal. “While this Court may consider the merits of a claim of ineffective assistance of counsel raised for the first time on direct appeal, it is unusual to do so because ‘[w]e are limited to the trial court record in our review of the claim and there is usually insufficient evidence within the record to evaluate the claim.’ ” Wynn v. State, 964 So.2d 1196, 1200 (¶ 9) (Miss.Ct.App.2007) (quoting Wilcher v. State, 863 So.2d 776, 825 (¶ 171) (Miss.2003)). “Our supreme court instructs that, on direct appeal, the entire record should be reviewed.” Id. (citing Read v. State, 430 So.2d 832, 841 (Miss.1983)). “This Court will reach the merits of an ineffective assistance claim only in instances where, ‘(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.’ ” Id. (quoting Wilcher, 863 So.2d at 825 (¶ 171)). “Where the record is insufficient to support a claim of ineffective assistance, ‘[t]he appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief.’ ” Id. (quoting Aguilar v. State, 847 So.2d 871, 878 (¶ 17) (Miss.Ct.App.2002)).

¶ 24. In the instant case, the parties have made no stipulation as to the adequacy of the record; therefore, we must inquire whether the record affirmatively shows that Harris was denied effective assistance of counsel. In making this inquiry, we must determine whether Harris’s representation was “so lacking in competence that it becomes apparent or should be apparent that it is the duty of the trial judge to correct it so as to prevent a mockery of justice.” Id. at (¶ 10) (quoting Ransom v. State, 919 So.2d 887, 889 (¶ 9) (Miss.2005)).

¶ 25. The requirements of proving ineffectiveness of counsel are as follows:

To prove a claim of ineffective assistance, a defendant must show (1) that his defense counsel’s performance was deficient, and (2) that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Swington v. State, 742 So.2d 1106, 1114 (¶ 22) (Miss.1999). “The determination of whether counsel’s performance was both deficient and prejudicial must be determined from the ‘totality of the circumstances.’ ” Cole v. State, 666 So.2d 767, 775 (Miss.1995) (citation omitted). The defendant bears the burden of proving both prongs of Strickland and faces a rebuttable presumption “that trial counsel’s conduct is within the wide range of reasonable conduct and that decisions made by counsel are strategic.” Edwards v. State, 615 So.2d 590, 596 (Miss.1993) (citing Leatherwood v. State, 473 So.2d 964, 969 (Miss.1985)). To rebut this presumption the defendant must show that, [“]but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Wynn, 964 So.2d at 1200 (¶ 11). Harris claims that his trial counsel was ineffective for two reasons:

A. Trial counsel failed to procure exonerating telephone records.

¶26. Harris’s appellate counsel, who is different from his trial counsel, claims that trial counsel’s failure to subpoena certain telephone records amounted to ineffective assistance of counsel. The telephone records at issue are those of Montgomery’s cell phone from the day of the accident. Harris’s version of the wreck was that he asked Montgomery to use her cell phone while they were traveling in the SUV. Harris testified that he called another girlfriend, and once Montgomery realized this, she tried to snatch the cell phone away from him, causing her to lose control of the vehicle and wreck. Harris contends that the cell phone records would have exonerated him.

¶ 27. With regard to this claim, we cannot say that the record before us is sufficient, without more, to establish ineffective assistance of counsel. The cell phone record, which Harris claims would bolster his version of events, is not a part of the record on appeal. Therefore, Harris’s claim of ineffective assistance of counsel will not be addressed, and it is dismissed without prejudice to preserve his right to renew such a claim on post-conviction collateral relief if he so chooses.

B. Trial counsel failed to object to continuous, prejudicial leading questions during the direct examination of the alleged victim or, in the alternative, the trial court committed plain error by allowing the same.

¶ 28. Harris claims that his trial counsel was ineffective for failing to object to fifty leading questions asked of Montgomery by the assistant district attorney during her testimony. Harris separately sets out each of the fifty questions that he contends are improper leading questions.

¶29. A leading question is one which suggests the desired answer or puts words into the witness’s mouth to be echoed back. McDavid v. State, 594 So.2d 12, 17 (Miss.1992). Rule 611(c) of the Mississippi Rules of Evidence states that leading questions should not be used on the direct examination of a witness except “as may be necessary to develop his testimony.” M.R.E. 611(c). The comment to the rule explains, “Leading questions as a general rule should not be used on direct examination since they suggest the answers the attorney wants from his own witness. This gives an unfair advantage to the party who is presenting his ease.” M.R.E. 611 cmt. “[T]he decision to allow leading questions rests within the sound discretion of the trial court.” Parks v. State, 930 So.2d 383, 387 (¶ 9) (Miss.2006) (citing McFarland v. State, 707 So.2d 166, 175 (Miss.1998)). “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 speculative and likely inconsiderable and only the trial court was able to observe the demeanor of the witness to determine the harm.” Mosby v. State, 749 So.2d 1090, 1093 (¶ 9) (Miss.Ct.App.1999) (citing Whitlock v. State, 419 So.2d 200, 203 (Miss.1982)).

¶ 30. Based on the record before us, we find that Harris has failed to demonstrate that trial counsel’s failure to object to the alleged leading questions constituted ineffective assistance. This Court has recognized that failure to object to leading questions may fall within the ambit of trial strategy. See Bullard v. State, 923 So.2d 1043, 1047 (¶ 13) (Miss.Ct.App.2005) (“This Court also is mindful that not objecting to leading questions by the State could have been a trial strategy.”). In Bullard, we held that the defendant had failed to demonstrate prejudice resulting from his counsel’s failure to object to leading questions asked by the State because “[t]he same answers could have been elicited by simply rephrasing the question.” Id. (citing Jackson v. State, 614 So.2d 965, 971 (Miss.1993)). We reach the same conclusion in this case. “[TJrial counsel’s failure to object to leading questions, without proof that prejudice resulted, does not amount to ineffective assistance of counsel.” Id. (citing Al-Fatah v. State, 856 So.2d 494, 503 (¶ 24) (Miss.Ct.App.2003)). Moreover, with regard to Harris’s argument that the trial court committed plain error in allowing the alleged leading questions, we cannot say that under the context and circumstances of this case that the trial court abused its discretion in allowing the prosecutor to ask the questions challenged on appeal. Accordingly, this issue is without merit.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF TWO COUNTS OF AGGRAVATED ASSAULT AS A HABITUAL OFFENDER AND SENTENCE OF TWENTY YEARS ON COUNT I AND TWENTY YEARS ON COUNT II WITH THE SENTENCE IN COUNT I TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNT II AND CONSECUTIVELY TO THE SENTENCE IN MADISON COUNTY CAUSE NUMBER 2001-0503 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Harris had previously filed a motion in li-mine seeking to prevent the child from being present during the trial, and Harris’s attorney offered to stipulate that the child was forced to have her leg amputated as a result of the accident, but the State refused. The trial court denied the motion.

      . Harris notes that the Mississippi Supreme Court has held that “photographs of the victim should not ordinarily be admitted into evidence where the killing is not contradicted or denied and the corpus delicti and the identity of the deceased have been established.” Sharp v. State, 446 So.2d 1008, 1009 (Miss.1984) (citing Shearer v. State, 423 So.2d 824, 827 (Miss.1982)). The supreme court has also stated that “gruesome photographs which have no evidentiary purpose and which only arouse the emotions of a jury should not be admitted, but the mere fact that a photograph may arouse the emotions of jurors does not render it incompetent so long as the photograph serves a legitimate evidentiary purpose.” Id. (citing May v. State, 199 So.2d 635, 640 (Miss.1967); Shearer, 423 So.2d at 827).


source: Caselaw Access Project

author: GRIFFIS, J., for the Court.

license: Public Domain

text:
    Efrem COLEMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CP-00369-COA.
    Court of Appeals of Mississippi.
    April 1, 2008.

      Efrem Coleman, Appellant, pro se.
    Office of the Attorney General, by Laura Hogan Tedder, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Efrem Coleman appeals the trial court’s order dismissing his motion for post-conviction collateral relief. As error, Coleman asserts: (1) he was denied due process when the trial court did not advise him that he had a right to a direct appeal of his sentence, (2) he was denied due process when he was convicted of the offense in his indictment without having admitted all of the required elements, (3) the indictment was flawed because it did not list the judicial district, (4) his trial counsel was ineffective, and (5) the trial court should have granted him an evidentiary-hearing. We find no error and affirm.

FACTS

¶ 2. On April 6, 2006, Coleman pleaded guilty to the sale of cocaine in the Circuit Court of Lee County. At the time of his guilty plea, Coleman was forty-one and had an eleventh grade education. During the hearing, Coleman testified that his plea was given freely and voluntarily. He stated that no one had tried to threaten or coerce him in order to make him plead guilty. The trial judge listed every right that Coleman was waiving by pleading guilty. Coleman stated that he understood that he was waiving these rights and that he still wanted to plead guilty. Coleman acknowledged the elements of his crime and pleaded guilty.

ANALYSIS

I. Whether the trial court erred by not informing Coleman that he had the right to appeal his sentence.

¶ 3. Coleman argues that the trial court should have informed him that he had a right to appeal his sentence. He cites Trotter v. State, 554 So.2d 313 (Miss.1989) for the proposition that a defendant who pleads guilty has a right to appeal his sentence and that the trial judge must inform the defendant of this right.

¶4. Coleman is only partially correct. Trotter does state that a criminal defendant who pleads guilty may challenge the sentence that results from the guilty plea on direct appeal, even though he or she may not challenge the conviction that results from a guilty plea. Trotter, 554 So.2d at 315. However, Trotter does not stand for the proposition that a trial judge must inform a criminal defendant about his right to directly appeal the sentence resulting from the guilty plea.

¶ 5. Uniform Rule of Circuit and County Court Practice 8.04(A)(4) lists the “Advice” that a trial judge must give to a criminal defendant during a guilty plea. The trial court must interrogate the defendant and determine the following:

a. That the accused is competent to understand the nature of the charge;
b. That the accused understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law;
c. That the accused understands that by pleading guilty (s)he waives his/ her constitutional rights of trial by jury, the right to confront and cross-examine adverse witnesses, and the right against self-incrimination; if the accused is not represented by an attorney, that (s)he is aware of his/ her right to an attorney at every stage of the proceeding and that one will be appointed to represent him/ her if (s)he is indigent.

URCCC 8.04(A)(4). The trial court must also determine that a plea is given “voluntarily and intelligently.” URCCC 8.04(A)(3).

¶ 6. The rules do not require that a trial judge inform a defendant that he or she has the right to appeal his or her sentence. Furthermore, Coleman has not pointed to any error in his sentence and has merely stated that the trial court could have given him a lighter sentence. Coleman was sentenced to serve eight years, with twelve years of post-release supervision. The trial judge determined that she could sentence Coleman to a maximum of thirty years. Miss.Code Ann. § 41 — 29—139(b)(1) (Rev.2005). However, the trial judge decided that a lighter sentence was more appropriate. We have held that “[a]s a general rule, a sentence that does not exceed the maximum period allowed by statute will not be disturbed on appeal.” Bell v. State, 769 So.2d 247, 251(¶ 9) (Miss.Ct.App.2000). Coleman’s sentence is well below the maximum sentence for the sale of cocaine. Thus, we find that this issue is without merit.

II. Whether the record contained a sufficient factual basis to support Coleman’s conviction and whether or not he admitted all the elements required to support his conviction.

¶ 7. Coleman next argues that his guilty plea is invalid because he did not admit the elements of his crime. Coleman appears to argue that his guilty plea was not based upon sufficient facts, and we will address it as such. He also claims that he did not admit or concede jurisdiction.

¶ 8. Uniform Rule of Circuit and County Court Practice 8.04(A)(3) states that, “[b]e-fore the trial court may accept a plea of guilty, the court must determine that ... there is a factual basis for the plea.” The Mississippi Supreme Court has defined “factual basis.” The court explained that “[i]n the end there must be enough that the court may say with confidence the prosecution could prove the accused guilty of the crime charged, ‘that the defendant’s conduct was within the ambit of that defined as criminal.’ ” Corley v. State, 585 So.2d 765, 767 (Miss.1991) (quoting United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989)). The court proceeded to give examples of the proof required to show a factual basis, but it emphasized that “[njone of this is to say that the defendant’s admission, standing alone, may not suffice, nor that we may not take the testimony of the accused in conjunction with all else in deciding that there is an adequate factual basis for the plea.” Id. (emphasis added). Furthermore, we have previously held that “if sufficiently specific, an indictment or information can be used as the sole source of the factual basis for a guilty plea.” Drake v. State, 823 So.2d 593, 594(¶ 6) (Miss.Ct.App.2002) (citation omitted).

¶ 9. Coleman was charged with and pleaded guilty to the crime of selling a controlled substance, cocaine. This crime is defined as follows: “it is unlawful for any person knowingly or intentionally ... [t]o sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute, or dispense a controlled substance.” Miss.Code Ann. § 41-29-139(a)(l) (Rev. 2005). During Coleman’s plea, the trial judge and Coleman had the following discussion:

Q. Okay. Mr. Coleman, in Cause No. CR05-531, the Court is advising you that on the 3rd day of May, 2005, it is alleged that you did willfully, unlawfully, and feloniously sell, transfer, or distribute to Josh Moore a quantity of cocaine, a Schedule II controlled substance. Do you understand the charge in this indictment?
A. Yes, ma’am.
Q. Did you commit the crime?
A. Yes, ma’am.

¶ 10. As stated above, in Corley, the supreme court held that a defendant’s admission alone may establish a factual basis for the guilty plea, so long as a trial court “[can] say with confidence the prosecution could prove the accused guilty.” Corley, 585 So.2d at 767. Here, Coleman’s indictment was sufficiently specific to establish a factual basis for Coleman’s guilty plea. After reviewing the record, we find that the trial court was presented with enough evidence to determine that there was a sufficient factual basis for the plea. Therefore, we find that this issue is without merit.

III. Whether or not the indictment contains the jurisdictional elements of the crime charged.

¶ 11. Coleman argues that his indictment violated Uniform Rule of Circuit and County Court Practice 7.06(4) because, “[a]n indictment shall also include ... [t]he county and judicial district in which the indictment is brought....” URCCC 7.06(4). The State argues that the indictment lists the county and that this sufficiently meets the requirements of Rule 7.06 because Lee County has only one judicial district.

¶ 12. The supreme court “has held that a guilty plea waives any claim to a defective indictment.” Harris v. State, 757 So.2d 195, 197(¶ 9) (Miss.2000). Waiver aside, Coleman’s argument also fails because the indictment was valid. In Harris, the supreme court held that an indictment was valid even though it did not list the judicial district; “[bjecause Lamar County only has one judicial district, there is no error.” Id. at 198-99(¶ 15). Here, Lee County only has one judicial district, and the indictment stated that it was brought in Lee County. Therefore, we find that this issue has no merit.

IV. Whether Coleman’s counsel was ineffective.

¶ 13. Coleman’s fourth assignment of error is that his counsel was ineffective because he: (1) failed to inform him of the elements of the crime, (2) did not properly inform him of all parts of the plea agreement, and (3) did not investigate the evidence. Coleman also argues that his attorney and the trial judge coerced him to plead guilty because they told him that he had to plea or he was going to trial.

¶ 14. To prove ineffective assistance of counsel, a defendant must show that: (1) his counsel’s performance was deficient and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with the defendant. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694,104 S.Ct. 2052.

¶ 15. Coleman must allege both prongs of the above test with specific detail. Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990). In cases involving post-conviction collateral relief, “where a party offers only his affidavit, then his ineffective assistance claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995). Coleman presented no affidavits along with his petition. He merely relies on the assertions in his brief. This does not satisfy the requirements of Vielee.

¶ 16. Further, Coleman failed to satisfy the two prongs of Strickland. Coleman has not come forward with specific proof showing that his counsel was deficient. Coleman testified under oath, during his guilty plea, that he was satisfied with his attorney’s representation.

¶ 17. Even if Coleman could establish prong one of Strickland, he could not establish that his counsel’s representation prejudiced him under prong two. First, the trial judge informed Coleman of the elements of the his crime. Second, the record clearly shows that the trial judge and Coleman’s attorney went to great lengths to lead Coleman through the plea process and made sure that his plea was intelligent and voluntary. Third, Coleman has not specifically shown how his attorney’s lack of investigation has prejudiced his case. Coleman has not told this Court what his attorney would have uncovered and how this evidence would have helped his case. Finally, Coleman’s argument that he was coerced to plead guilty is without merit. He says that his attorney and the trial judge forced him to either plead guilty or go to trial. There is nothing to support this claim. The actions by the trial court and counsel were not a violation of Strickland. We find no error with this issue.

V Whether the trial court erred in denying Coleman’s motion for post-conviction collateral relief without an evidentiary hearing.

¶ 18. Coleman argues that the trial court erred when it dismissed his motion for post-conviction collateral relief without granting him an evidentiary hearing. In Hebert v. State, 864 So.2d 1041, 1045(¶ 11) (Miss.Ct.App.2004) (internal citations omitted), this Court held that:

A trial court has considerable discretion in determining whether to grant an evi-dentiary hearing. Not every motion for post-conviction relief filed in the trial court must be afforded a full adversarial hearing. A trial judge may disregard the assertions made by a post-conviction movant where, as here, they are substantially contradicted by the court record of proceedings that led up to the entry of a judgment of guilt.

We find that the trial court did not err in dismissing Coleman’s petition for post-conviction collateral relief without an evi-dentiary hearing in this case because Coleman’s assertions are substantially contradicted by the court record. Thus, we find that this issue has no merit.

¶ 19. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT DISMISSING MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: ISHEE, J.,

text:
    Evelyn Kay MANNING, Appellant v. SUNBEAM-OSTER HOUSEHOLD PRODUCTS and National Union Fire Insurance Company of Pittsburgh, PA, Appellees.
    No. 2007-WC-00786-COA.
    Court of Appeals of Mississippi.
    April 15, 2008.

      Lester Clark, Nathan Lester Clark, Lexington, attorneys for appellant.
    Matthew Jason Sumrall, attorney for ap-pellees.
    Before MYERS, P.J., IRVING and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. In October 1995, Evelyn Kay Manning suffered a back injury while working at a manufacturing plant owned and operated by Sunbeam-Oster Household Products (employer). Manning filed a petition to controvert. Initially, all of Manning’s medical treatment, including treatment for her psychological issues, was-covered and paid for by the employer’s insurance provider, National Union Fire Insurance Company of Pittsburgh, PA (carrier).

¶ 2. After a lengthy course of treatment, extending over .a period of more than nine years, covering a range of physical and mental problems, and involving more than twenty-three different physicians, Manning’s claim was finally evaluated by an administrative law judge in October 2004. The administrative law judge concluded that Manning had a compensable claim for some of the treatment she received. However, the administrative law judge also concluded that an elective surgery performed in February 2002 and all treatment related to her physical problem after that 2002 surgery were non-compensable, and that all her psychological care was non-compensable. The administrative law judge’s decision was later affirmed by the full Mississippi Workers’ Compensation Commission (Commission) and the Circuit Court of Forrest County.

¶ 3. Aggrieved, Manning appeals. The assignments of error Manning raises on appeal can be reduced to the following issues: (1) whether the administrative law judge applied the correct burden of proof; (2) whether the administrative law judge correctly weighed the medical evidence; (3) whether substantial evidence supports the administrative law judge’s finding that the surgery of February 2002 and all subsequent treatment for her physical injury is non-compensable; and (4) whether substantial evidence supports the administrative law judge’s finding that all treatment for her psychological issues is non-compen-sable.

¶ 4. Finding no error, we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 5. On October 14, 1995, Manning suffered a back injury lifting a “tote” while working on an assembly line at a plant belonging to her employer. Over the course of the next nine years, Manning was treated by more than twenty-three different physicians for a variety of physical and mental problems allegedly stemming from her back injury. Her treatment began the week after she injured her back, during which she visited Dr. Kim Puckett, a chiropractor, complaining of severe lower back pain. On November 2, 1995, Manning went to a clinic in Hatties-burg and was treated by Dr. Bruce McCarthy, an orthopedic surgeon. Dr. McCarthy recommended bedrest and prescribed anti-inflammatories and muscle re-laxarás. An X-ray taken during that visit revealed no acute injury. Manning underwent an MRI later that month, which revealed a central disc bulge at L4-5, but no evidence of nerve root or canal compromise. Dr. McCarthy continued to recommend a course of anti-inflammatories, muscle relaxarás, and bedrest.

¶ 6. On November 29, 1995, Manning saw another orthopedic surgeon, Dr. Claude Williams, in New Orleans. Dr. Williams noted that Manning demonstrated no abnormal neurological findings upon examination; but she nevertheless recommended a trial of epidural steroid injections, which Manning received.

¶ 7. In July 1996, an independent medical examination was conducted by Dr. Richard Buckley, a neurosurgeon, at the request of the employer and the carrier. Dr. Buckley reviewed the MRI taken in Hattiesburg, finding that the bulge at L4-5 was deterioration consistent with Manning’s age. He concluded that there was no objective abnormality in Manning’s condition and that Manning was suffering from no neurologic deficit.

¶ 8. In September 1996, Manning was seen by Dr. Bertha Blanchard, a neurologist. Dr. Blanchard concluded that Manning might have a possible left lumbosacral radiculopathy, and she recommended that Manning undergo a myelogram, a bone scan, and EMG/NCS testing, all of which were performed.

¶ 9. Later that same month, another independent medical examination was conducted by Dr. Robert Manolakas, a physical medicine specialist. After examining Manning, Dr. Manolakas reported that his testing revealed multiple signs of exaggerations and inconsistencies in Manning’s complaints. He concluded that there was no evidence that Manning was suffering from radiculopathy, nerve root damage, or nerve root embarrassment. He also found that Manning was at maximum medical improvement, and there was no need for further testing.

¶ 10. In November 1995, Manning underwent an independent psychiatric evaluation conducted by Dr. Henry Maggio at the request of the employer and the carrier. Dr. Maggio concluded that Manning had an adjustment disorder and chronic depression. He also stated that her psychological condition was not causally related to her work injury, but her psychological problems might be resulting in some form of symptom magnification.

¶ 11. Over the course of the next eight years, Manning was seen by a number of different physicians, who conducted a wide variety of different tests and offered various diagnoses for Manning’s continuing back pain. The conclusions of these physicians might best be summarized as follows. Some of the physical and internal medical specialists concluded that Manning’s pain was legitimate and could be treated with surgery or other techniques. Others concluded that she exhibited no abnormal signs, was at maximum medical recovery, and could return to work. These opinions were not evenly split among physicians selected by the employer and the carrier and the physicians selected by Manning. Almost all of the psychologists and psychiatrists seen by Manning diagnosed her with severe mental and emotional trauma, including personality disorder with histrionic and schizoid traits, avoidant personality disorder, anxiety disorder, and chronic major depression. Most of the mental health professionals concluded that these mental problems were exacerbating if not causing her pain symptoms. Most concluded that Manning’s psychological problems pre-dated her work injury.

¶ 12. Finally, in February 2002, Manning underwent an elective lower back surgery for L4-5 discogenic disease conducted by Dr. Lee. After the surgery, Manning continued to report that she was in pain, and in June 2003, she was treated by Dr. Jeffrey Summers, a pain management specialist, as part of an independent medical examination ordered by the Commission. Dr. Summers concluded that Manning had no neurologic deficit, and that any further surgical treatment was “doomed to failure.” Am additional Commission-ordered independent medical exam was conducted by Dr. Rahul Vohra in February 2004. Dr. Vohra concluded that Manning had a somatoform disorder with preexisting depression and anxiety. He also found that further medical intervention had no chance of providing any greater relief to Manning due to her preexisting mental health issues.

STANDARD OF REVIEW

¶ 13. In cases involving orders of the Mississippi Workers’ Compensation Commission, the Commission sits as finder of fact and its findings are entitled to substantial deference. Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 335 (¶ 11) (Miss.2003). Therefore, we will not interfere with the findings of the Commission unless those findings are not supported by substantial evidence in the record. Id. at (¶ 9). Additionally, “[t]he Commission is also the ultimate judge of the credibility of witnesses.” Barber Seafood, Inc. v. Smith, 911 So.2d 454, 461 (¶ 27) (Miss.2005) (citation omitted). When the evidence presented by witnesses on a particular issue is conflicting, we are not empowered to determine where the preponderance of evidence lies. Id. Instead, “this Court must affirm the decision of the Commission where substantial credible evidence supports the Commission’s order.” Id.

DISCUSSION AND ANALYSIS

(1) The administrative law judge applied the correct burden of proof.

¶ 14. Manning asserts that the administrative law judge, instead of applying a burden of proof based on preponderance of the evidence or clear and convincing evidence, should have applied a burden of proof based on a substantial evidence standard. However, in doing so, Manning has confused the issues of the correct burden of proof to be applied by the administrative law judge and the standard of review applied by this Court on appeal.

¶ 15. “In a workers’ compensation case, the claimant bears the burden of proving by a ‘fair preponderance of the evidence’ each element of the claim.” Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 13 (Miss.1994) (citing Bracey v. Packard Elec. Div., Gen. Motors Co., 476 So.2d 28, 29 (Miss.1985)). Thus, the correct burden of proof for the administrative law judge to apply in this case would have been a burden based on the preponderance of the evidence, and this was in fact the burden applied during the administrative hearing. As noted above, under our standard of review in cases such as this, we defer to the findings of the administrative law judge and the full Commission so long as those findings are supported by “substantial evidence.” The substantial evidence standard, therefore, is not a burden of proof to be applied by the administrative law judge in the original hearing, but a factor used by appellate courts in reviewing the decisions reached in administrative proceedings.

(¾) The administrative law judge correctly weighed the medical evidence.

¶ 16. Both sides in this case have engaged in an argument over an issue that they frame as one involving the proper degree of deference an administrative law judge should give to a treating physician. Manning argues that an administrative law judge, when faced with opinions from two equally competent physicians, should defer to the “treating physician,” relying primarily on South Central Bell Telephone Co. v. Aden, 474 So.2d 584 (Miss.1985). The employer and the carrier argue against this proposition, primarily citing to Spann v. Wal-Mart Stores, Inc., 700 So.2d 308 (Miss.1997) and Hardaway Co. v. Bradley, 887 So.2d 793 (Miss.2004).

¶ 17. Both sides, however, confuse the issue on this point. The question of deference that they attempt to address is better framed as one of deference to a patient-selected physician over a physician selected by the employer and the carrier, rather than deference to a treating physician over a non-treating physician. Although the workers’ compensation statute gives the claimant the right to select their primary physician, it never refers to that physician as a “treating” physician, and we see no reason why a physician examining a patient in an independent medical examination requested by an employer or a carrier is not “treating” the patient. Therefore, we reject this distinction between treating and non-treating physicians.

¶ 18. Furthermore, after a close reading of Aden, at no place can this Court find language that attempts to set out a rule whereby, all other things being equal, an administrative law judge is required to defer to the opinion of a patient-selected or “treating” physician. However, we are mindful that this is not the first time this issue has been presented to the Court framed in this manner. See Richardson v. Johnson Elec. Auto., Inc., 962 So.2d 146 (Miss.Ct.App.2007). The following analysis is provided to offer guidance on this issue.

¶ 19. In Aden, a woman in her mid-thirties suffered a back injury while working for the telephone company. Aden, 474 So.2d at 586. She filed a workers’ compensation claim, and after a hearing by an administrative law judge, she was found to be permanently disabled. Id. at 584. The administrative law judge heard testimony from two physicians. Id. at 588. One of which, Dr. Browning, was patient-selected and had examined the claimant on numerous occasions. Id. The other physician, Dr. Yerger, was employer-selected and examined the patient only once or twice. Id. The patient-selected physician concluded that the woman was permanently disabled; the employer-selected physician that she was not permanently disabled. Id. In appealing the finding of the administrative law judge, the employer and the carrier argued that the evidence presented by the physician they selected should control since he examined the woman at a later time than Dr. Browning, the patient-selected physician. Id. at 592.

¶20. In upholding the decision of the administrative law judge, which admittedly favored the evidence presented by the patient-selected physician, the Mississippi Supreme Court stated that:

We regard the testimony of Dr. Yerger vis-a-vis the testimony of Dr. Browning as each constituting admissible medical opinions which were submitted to the triers of facts, the members of the Mississippi Workmen’s [sic] Compensation Commission. The Commission was charged with the responsibility under our law for weighing and evaluating this testimony and all other testimony before and making a finding. The net effect of the Commission’s fact finding in this regard was that Dr. Yerger’s testimony was simply not credible. The fact that it was admissible testimony and the fact that Dr. Yerger examined the claimant last in no way serves to undercut the Commission’s finding.

Id. at 593 (emphasis added). Contrary to Manning’s assertions, the language above in no way suggests that, in the face of equally competent medical testimony, an administrative law judge is required to defer to a “treating” or patient-selected physician. Although the administrative law judge and later the full Commission did rely on the testimony of the patient-selected physician, they did so simply because the only competing testimony from employer-selected physicians was judged to lack all credibility. Id. Manning is, therefore, incorrect in her assertions that Aden requires the administrative law judge to defer to the physicians she selected in the instant case.

¶ 21. The cases cited by the employer and the carrier provide further support for this conclusion. In Spann, an employee of Wal-Mart suffered a back injury while carrying a tire. Spann, 700 So.2d at 310 (¶ 6). He was seen by Dr. John Frenz, an orthopedic surgeon, who recommended he undergo laparoscopic back surgery for a disc displacement. Id. The employee was later examined by Dr. Elmer Nix, another orthopedic surgeon, who concluded that the disc displacement was within normal limits. Id. at (¶ 9). However, Dr. Nix also stated that he had not reviewed the worker’s MRI, and his answers were uncertain because he had only seen the employee one time. Id. Finally, the worker saw an additional orthopedic surgeon, Dr. Patrick Barrett, who diagnosed the disc displacement as a problem but he concluded that the recommended surgery would provide a less than fifty-percent chance that the employee would be able to return to his earlier duties. Id. at (¶ 10).

¶ 22. An administrative law judge, the full Commission, and this Court all denied the employee’s claim for compensation for the laparoscopic back surgery. The supreme court reversed those decisions, holding that:

Wal-Mart is obligated, pursuant to the Act, to allow Spann to have the surgery recommended by Dr. Frenz, the primary treating physician. Dr. Barrett states that in his opinion, having seen Spann on a limited basis, that there is only a 50-50 chance the laparoscopic surgery will allow Spann to return to heavy work, and he does not express an opinion as to whether or not this surgery would relieve Spann’s pain. Only Dr. Nix ... took the position that surgery was unnecessary or would not be beneficial to Spann’s recovery.

Spann, 700 So.2d at 315 (¶ 33). Although the supreme court referred to Dr. Frenz as the “primary treating physician” and sided with his conclusions, this opinion merely confirms our basic standard of review in all workers’ compensation cases. We defer to the decisions of the administrative law judge and the Commission when those decisions are supported by substantial credible evidence. In Spann, the decisions of the administrative law judge and the Commission to deny compensation for the surgery, in the view of the supreme court, were not supported by substantial credible evidence. In fact, the court clarified its conclusion in Spann in the more recent Hardaway case, stating:

Spann was not given the surgery simply because his treating physician prescribed it, but because the Commission was not presented with any other credible evidence to the contrary. In Spann, the only difference between the two credible witnesses were that one felt surgery was necessary, and the other thought there was a 50/50 chance that surgery would be beneficial.

Hardaway, 887 So.2d at 797 (¶ 18). In keeping with the substantial evidence standard of review, the supreme court reversed the decisions of the administrative law judge, the Commission, and this Court in Spann, not because those decisions failed to defer to a “treating” physician but because they were not supported by substantial credible evidence.

¶ 23. Finally, the supreme court’s decision in Hardaway provides a direct rebuke to Manning’s argument on the proper deference that must be given to a patient-selected physician. In Hardaway, a worker named Harvey Bradley was injured when wet cement fell on his head. Hardaway, 887 So.2d. at 794 (¶ 2). He initially saw the now familiar Dr. Frenz, who eventually concluded that Bradley needed surgery. Id. at (¶ 3). At the request of his employer, Bradley was also examined once by Dr. Lon Alexander and four times by Dr. Howard Katz, who both concluded that surgery was unnecessary. Id. at 794-95 (¶¶ 4-5). An administrative law judge later issued an order denying compensation for the surgery, an order which was affirmed by the Commission, but reversed by the circuit court and this Court. Id. at 794 (¶ 1).

¶ 24. In reversing the decision of the circuit court and this Court, the supreme court stated that “here, with the testimony of two physicians, who conducted independent medical examinations, the Commission’s decision was supported by more than a scintilla of evidence. Therefore, ‘substantial evidence’ supporting the Commission’s decision was present.” Id. at 796 (¶ 14). In fact, the supreme court reversed those decisions granting compensation for the surgery even while agreeing with the administrative law judge’s finding that “Dr. Frenz treated claimant more often over a longer period of time than Dr. Alexander and Dr. Katz....” Id. The supreme court’s ruling in Hardaway clearly indicates that administrative law judges are not required to defer to “treating” or patient-selected physicians when they are presented with credible countervailing evidence. Therefore, we find Manning’s argument on the issue of the proper weight to be given to the testimony of “treating” or patient-selected physicians to be contrary to the prevailing law in this state, and this assignment of error to be without merit.

¶ 25. As a final aside on this issue, we note that the employer and the carrier have expressed concern over recent orders of the Commission in which they have seemingly adopted the rule Manning urges us to apply in this case. Specifically, the employer and the carrier quote from a recent decision of the Commission, Alexander v. Forest Hill Nursing Center, Inc., MWCC No. 02 06438-H-9709 (Sept. 21, 2005), in which the Commission stated “If the evidence presented is equivocal or equally credible (that is, two or more competent physicians simply disagree about the efficacy of the contemplated procedure) then deference must be provided to the claimant’s treating physician.” Id. Given our discussion above, it should be clear that any such rule is contrary to the current law, a conclusion the Commission itself may have already reached as there is some dispute over whether it followed the rule set out in Alexander in the instant case. Regardless, however, of whether the Commission followed the rule in this case, the language quoted from Alexander above is an incorrect statement of the law in this state.

(S) Substantial evidence supports the administrative law judge’s findings that physical treatment past February 2004, is non-compensa-ble.

¶ 26. Manning argues that the orders of the administrative law judge and the Commission denying her compensation for the surgery performed by Dr. Lee in February 2002 and all subsequent treatment for her physical problem, excluding examinations ordered by the Commission, were not supported by substantial evidence and should be reversed by this Court.

¶ 27. In the order denying compensation, the administrative law judge relied primarily on the findings of Dr. Michael Fromke, Dr. McCarthy, Dr. Williams, Dr. Buckley, and Dr. Manolakas. It noted that Dr. Fromke concluded that Manning had reached maximum medical improvement on May 19, 1998, with no permanent medical impairment or work restrictions related to the injury. The order also noted that at the time of Dr. Fromke’s diagnosis, Dr. McCarthy and Dr. Williams had both diagnosed a disc bulge at L4-5, and neither had recommended surgery. Furthermore, the order stated that Dr. Buckley had concluded that Manning had no true objective abnormality and no neurological deficit, and Dr. Manolakas had determined that there was a very poor correlation between Manning’s subjective complaints and his objective findings.

¶ 28. The conclusions of the physicians listed above provide more than enough substantial credible evidence that Manning did not require the surgery performed by Dr. Lee in February 2002 or any further treatment past that point. Under our standard of review in this case, we cannot judge the individual credibility of each physician. If the decisions of the administrative law judge and the Commission are supported by substantial credible evidence, we must defer to those decisions. In this case, there clearly exists substantial evidence sufficient to support a finding that Manning did not require the surgery of February 2002 or any further treatment for her back injury. Accordingly, we find Manning’s argument that the decisions of the administrative law judge and the Commission were not supported by substantial evidence to be without merit.

(4) Substantial evidence supports the administrative law judge’s finding that psychological treatment is non-compensa-ble.

¶ 29. Finally, Manning argues that the orders of the administrative law judge and the Commission denying her compensation for treatment related to her psychological problems were not supported by substantial evidence, and we should reverse those decisions.

¶ 30. During the administrative hearing, Manning admitted on cross-examination that she suffered fairly severe mental trauma as a child. She was frequently whipped and beaten by both her mother and father. She was sexually abused by her brother-in-law as a young child. She was raped at the age of fourteen by a man she later married. She revealed much of the same information to several of the psychologists and psychiatrists who examined her in connection with this case.

¶ 31. In support of the order denying compensation for Manning’s psychological treatment, the administrative law judge relied on the facts about her abusive childhood revealed during cross-examination and to her treating physicians. The administrative law judge also relied on the opinions of Dr. Henry Maggio, Dr. James Brister, and Dr. Ed Anderson. Dr. Mag-gio, a psychiatrist who saw Manning many times between 1996 and 2003, concluded that Manning had underlying psychiatric problems stemming from her childhood abuse unrelated to her work injury, including a personality disorder with histrionic and dependent traits, an adjustment disorder, and chronic depression. Dr. Brister stated that he could not relate her depression and other psychological symptoms to her back injury. Dr. Anderson diagnosed a schizoid personality disorder with avoi-dant features and stated these problems were fairly pronounced and were probably exacerbating her depression and any physical problems she may have had.

¶ 32. Again, based on our standard of review in this case, we cannot say that the testimony of these physicians did not provide substantial evidence that the psychological problems suffered by Manning were unrelated to her work injury and, therefore, non-compensable. Accordingly, we find this issue to be without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ROBERTS AND CARLTON, JJ., CONCUR. BARNES, J. CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


author: ROBERTS, J.,

text:
    Tammy (Prinz) PRUETT, Appellant v. Christopher Steven PRINZ, Appellee.
    No. 2007-CA-00156-COA.
    Court of Appeals of Mississippi.
    April 15, 2008.

      Henry Bernard Zuber, Ocean Springs, attorney for appellant.
    Michael J. Vallette, Ocean Springs, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. This is an appeal from a custody modification action in which the Chancery Court of Harrison County granted Christopher Steven Prinz’s motion for custody modification. Aggrieved by the trial court’s ruling, Tammy Pruett, Christopher’s ex-wife, appeals and raises the following issues:

I. WHETHER THE TRIAL COURT FAILED TO IDENTIFY AN ADVERSE EFFECT ON TIMOTHY;
II. WHETHER THE TRIAL COURT ERRED IN ADMITTING THE DVD; AND
III. WHETHER THE TRIAL COURT FAILED TO CONSIDER THE EFFECT OF SEPARATING TIMOTHY FROM HIS HALF-SISTER.
¶ 2. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. The testimony showed that Tammy and Christopher were divorced in August 2000. At that time Christopher and Tammy were living in Gulfport, Mississippi. The couple had three children during the course of their marriage: Lucy, Josh, and Timothy. Lucy and Josh were twenty-one and eighteen, respectively, at the time of the modification hearing in December 2006. Timothy was eight.

¶ 4. At the time of the parties’ divorce, Tammy was given custody of Josh and Timothy. Soon after the divorce, Tammy married James Pruett and moved to South Carolina. While in South Carolina, Tammy and James had their first child, whom they named Carmen. At the time of the modification hearing, Carmen was three years old.

¶ 5. At some point during Tammy and James’s marriage, their relationship became verbally abusive, and possibly physically violent. Josh testified that typically Tammy would start yelling at James, and James would verbally retaliate. Timothy also testified that he heard them yelling at each other. On one occasion, Timothy saw James throw Tammy against the wall. Tammy testified that she never instigated any altercation with James, but she would verbally defend herself.

¶ 6. Also, Tammy testified that while she lived in South Carolina, she allowed Lucy’s boyfriend, identified as Matt, to live in the house with her, James, Timothy, Josh, and Lucy. This went on for two and a half to three years until Lucy and Matt married in February 2006. She stated both Lucy and Matt were over eighteen years old during the time Matt lived in her house. Tammy testified that she did not allow Matt and Lucy to sleep in the same room. She stated that Matt slept in the same room as Josh. However, Josh testified that Matt did not sleep in his room. Josh claimed that Matt slept in the same room as Lucy every night except when Tammy’s mother came to visit.

¶ 7. As a result of the abusive relationship between her and James, Tammy decided to leave James and South Carolina. In mid-2006, Josh joined the South Carolina Army National Guard and left for basic training at Fort Benning, Georgia. Josh was seventeen years old at the time and still had one year of high school to complete before graduating. Soon after, Tammy took Timothy to Gulfport, Mississippi for his summer visitation with Christopher. She did not tell Josh of her plans to move. However, he eventually found out, while he was attending basic training, from a letter sent by his ex-girlfriend in South Carolina. Tammy testified that she made arrangements for Josh to stay with her sister in Ardmore, Oklahoma or with a family friend in South Carolina. However, while at basic training, Josh spoke with Christopher regarding the possibility of living with him in Mississippi. Following graduation from basic training, Josh moved in with his father and began his senior year in high school in Mississippi. Josh testified that he was never informed of his mother’s arrangements. Christopher and Tammy later agreed that Christopher should have physical custody of Josh.

¶ 8. After dropping Timothy off with his father in June 2006, Tammy visited her mother for a short time in Coldwater, Mississippi. At the conclusion of her visit, she moved in with her sister in Ardmore, Oklahoma because she was offered employment with H & P Services. H & P handled accounting and bookkeeping for small businesses. In addition to her position with H & P, Tammy testified that she had a web-based business in which she recruited individuals to sell nutritional and health-related products.

¶ 9. After her move to Ardmore, Oklahoma, Christopher had difficulty contacting Tammy. He was given a post office box number and a 1-800 number to call. However, he testified that no one ever answered the telephone number provided. When he asked Tammy’s mother for a direct telephone number, she explained that he did not need one. Tammy claimed at trial that her reluctance to give Christopher her actual address stemmed from her fear that James would discover her whereabouts. Additionally, further confusion surrounding Tammy’s place of residence surfaced when Christopher mailed a check for child support to Tammy’s South Carolina address. It was later returned as unclaimed after being forwarded to Ard-more, Oklahoma. However, following the August 2, 2006, hearing in which Christopher requested temporary custody, Tammy provided him with her sister’s address and telephone number.

¶ 10. Nonetheless, Christopher was still unsure of where Tammy was actually living. When Tammy called Christopher’s home in Gulfport, during Christopher’s 2006 summer visitation to speak with Timothy, her telephone number was blocked from identification. Additionally, the telephone number on Tammy’s website was listed to a Kenneth Davis in Colorado. Furthermore, in a letter sent to Josh while he was at Fort Benning, she used her South Carolina address as the return address, but it was post marked from Denver, Colorado.

¶ 11. Tammy testified at the August 8, 2006, hearing that she did not know who Kenneth Davis was or why his telephone number was on her website. She claimed she knew the number was incorrect and asked for it to be changed. She explained that the reason her mail was postmarked from Denver was that she sent all her mail, business and personal, to H & P in Colorado to mail out in bulk. As to her familiarity with Davis, she later testified during the December 4, 2006, hearing that she was mistaken. She explained that she did know Davis, but she did not know his last name. She clarified that Davis was the son of the owner of H & P, and the owner’s last name was Henry.

¶ 12. After attending Josh’s graduation from basic training on August 11, 2006, Tammy returned to Coldwater, Mississippi for a short time and learned she had been essentially promoted by H & P. In combination with the promotion, she was asked to move to Littleton, Colorado. She accepted the promotion and moved to Colorado with Timothy. In advance of her move, her employer arranged a lease for a four-bedroom home. Testimony at trial indicated that Davis and his family originally lived in the house. Though she was still married to James, she testified she was going to file for divorce once she established residency in Colorado.

¶ 18. After extensive questioning during the December hearing about her relationship with Davis, Tammy admitted that they were good friends and occasionally had gone out together. She explained that he was married, but separated. She was clear that Davis had never spent the night at her house. However, Timothy testified differently. During the December 2006 hearing, Timothy testified in chambers. After initially testifying that Davis did not spend the night at Tammy’s house, Timothy stated that Davis and his two sons spent the night almost every weekend. Additionally, Timothy testified that he called Davis “daddy” or “daddy Ken.” Tammy testified that he referred to Davis in this way out of respect. Timothy testified that he did so because that is what Davis’s sons call him.

¶ 14. As a result of Christopher’s inability to locate Tammy during the summer of 2006, he filed a petition for entry of an ex parte order temporarily granting him custody of Timothy. Following a hearing in which only Christopher and Timothy were present, the trial court granted Christopher’s petition on August 2, 2006, and set a hearing on the matter for August 30, 2006. During the interim, the trial court heard additional testimony on the issue from Christopher and Tammy during the August 8, 2006, hearing. Following a continuance of the August 30 hearing, Christopher filed another petition to enter an ex parte order, but he also requested permanent modification of custody of Timothy. A full hearing finally took place on December 4, 2006.

¶ 15. During the December 2006 hearing, one and a half to two hours of video footage showing Tammy’s house was shown to the trial court. Christopher testified that in November 2006, he hired a private detective to conduct surveillance of Tammy. The result was a DVD that showed Davis’s vehicle at Tammy’s home shortly after seven in the morning on November 27, 2006. Tammy testified that Davis was there to help her take Timothy to school. She stated he did not spend the previous night at her house.

¶ 16. As to Timothy’s condition since moving to Colorado, Tammy testified that he was doing well. She stated that he was making good grades and had made several friends. Additionally, she testified that Timothy typically had sinus-related problems, but since moving to Colorado, his symptoms had all but disappeared. Similarly, Timothy testified that he liked Colorado better than Mississippi.

¶ 17. At the conclusion of all the testimony, the trial court found that a material change in circumstances occurred that adversely affected Timothy. The trial court found, as a result of the facts presented that: Tammy missed visitation exchanges while she lived in South Carolina; she allowed Lucy and Matt to sleep in the same room while Timothy was in the house; Timothy was exposed to domestic violence while in South Carolina; and Tammy unlawfully cohabited with a married man in Colorado. The trial court also found that Tammy coached Timothy as to his testimony regarding Davis. After finding a material change in circumstances which adversely affected Timothy, the trial court determined, applying the Albright factors, that it was in the best interest of Timothy to be in the custody of his father. Finding no error, we affirm.

ANALYSIS

I. WHETHER THE TRIAL COURT FAILED TO IDENTIFY AN ADVERSE EFFECT ON TIMOTHY.

¶ 18. In order for this Court to reverse a chancellor’s modification of custody we must determine that the trial court applied an improper legal standard, was clearly erroneous, or manifestly wrong. Duke v. Elmore, 956 So.2d 244, 247(¶ 6) (Miss.Ct.App.2006).

¶ 19. At trial, the parent seeking custody modification must show: (1) a material change in circumstances occurred since the issuance of the decree sought to be modified; (2) that the material change adversely affected the minor child; and (3) that it would be in the child’s best interest for custody to change. Lambert v. Lambert, 872 So.2d 679, 683-84(¶ 18) (Miss.Ct.App.2003). However, the totality of circumstances should be considered in making the determination that a material change in circumstances has occurred. Giannaris v. Giannaris, 960 So.2d 462, 467(¶ 10) (Miss.2007). Additionally, “only parental behavior that poses a clear danger to the child’s mental or emotional health can justify a custody change.” Holmes v. Holmes, 958 So.2d 844, 847(¶ 14) (Miss.Ct.App.2007) (citation omitted). Following a finding of a material change in circumstances, the finding of an adverse effect on the child as a result of the material change must be a separate and affirmative determination. Duke, 956 So.2d at 247(¶ 7). In any event, the polestar consideration in all child custody cases is the best interests of the child. Lambert, 872 So.2d at 684(¶ 18). Lastly, cohabitation is relevant to a determination of a change in custody only to the extent it is shown such a relationship adversely affects the child. Sullivan v. Stringer, 736 So.2d 514, 517(¶ 16) (Miss.Ct.App.1999). Similarly, sexual relationships outside of marriage are not, by themselves, sufficient bases for custody modification. Id. at 518(¶ 19) (citing Phillips v. Phillips, 555 So.2d 698, 701 (Miss.1989)).

¶ 20. The trial court found that there was a material change in circumstances which was detrimental to Timothy’s best interest as a result of the following: (1) Tammy missed several visitation exchanges which led to the instigation of contempt proceedings against her; (2) Tammy allowed her daughter to sleep in the same room with her boyfriend for a period of years while in the presence of Timothy; (3) Timothy was exposed to bouts of fighting and domestic violence while in South Carolina; (4) Tammy left South Carolina without informing her oldest son; (5) Tammy engaged in cohabitation with a married man while in the presence of Timothy; and (6) Tammy coached Timothy to he to the trial court concerning the specifics of her relationship with Davis.

¶ 21. Tammy argues on appeal that the trial court erred in modifying custody as she claims it did not identify an adverse impact on Timothy. Based upon the trial court’s opinion and facts of this case, we disagree. The trial court mentioned the changes in circumstances, listed above, then stated: “[i]t was clear to the Court that [Tammy] had made serious attempts to coach Timothy in his testimony in [cjhambers to the Court ... [t]his was clear in his manner and in his responses.” It is clear that the adverse effect identified by the trial court stemmed mainly from Tammy’s inclusion of Timothy in her attempt to keep the truth of her relationship with Davis from the trial court. During its analysis of the Albright factors, the trial court further elaborated on the previously identified adverse effect, stating:

[B]ut this Court is perhaps most concerned with the way [Tammy] has persuaded [Timothy] to assist her in hiding her highly questionable conduct, that is, an affair with a married man, from his father and from the Court. Not only does [Tammy] apparently have no qualms about lying under oath herself but she has encouraged her own young, trusting, and impressionable child to lie for her_A parent is the most important role model in life that a child has. Children should be able to look to their parents with complete trust. Influencing a child to be duplicitous to hide one’s own immoral behavior is a serious breach of the parent-child relationship,

(footnote omitted). This Court could not agree more.

¶ 22. Based upon the record before us, we find that the trial court correctly and specifically found the requisite adverse effect prior to determining that a change in custody would be in Timothy’s best interest. This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN ADMITTING THE DVD.

¶23. Tammy argues that all evidence concerning the alleged cohabitation with Davis was based solely upon the DVD. She claims that under Mississippi Rules of Evidence 901 and 1002 the trial court erred in admitting the DVD.

¶ 24. Mississippi Rule of Evidence 901(a) requires “authentication or identification as a condition precedent to” the admissibility of evidence. This requirement “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” M.R.E. 901(a). Authentication can be accomplished through someone with knowledge of the events depicted on a videotape or, in this case, the DVD. Trull v. State, 811 So.2d 243, 246(¶ 8) (Miss.Ct.App.2000). The trial court asked Tammy if the DVD accurately depicted her home and vehicle, as well as Davis’s vehicle in front of her house. She positively identified all three items. Additionally, she explained to the trial court that Davis did not sleep at her house the night before the video, but he arrived that morning to help her with her children. Therefore, the DVD was properly authenticated, and no error occurred.

¶ 25. Tammy next argues that the DVD violated Mississippi Rule of Evidence 1002, commonly referred to as the best evidence rule. At trial, Tammy’s attorney objected to the introduction of the DVD into evidence as he claimed the authenticity of the DVD was questionable since there was no way to tell if the DVD was edited to exclude exculpatory material. The invoice from the private investigator hired by Christopher showed that Christopher was billed for a total of eleven hours of work. Nine of those hours were identified as “surveillance/travel.” Christopher testified that he had the private investigator begin surveillance on Monday, November 24, 2006. The invoice shows that six hours were billed as a result of surveillance/travel that day. However, Christopher testified that the private investigator told him Tammy was not home that Monday, and there was no activity at the house. The remaining three billed hours of “surveillance/travel” were from November 27, 2006, the day depicted in the DVD. Christopher also testified that the approximately one-and-a-half-to-two-hour video was all that was sent to him. He stated that he did not know why a portion would have been excluded, but “[the DVD] is what [the private investigator] videoed and [the DVD] is what [the private investigator] sent me.”

¶ 26. Mississippi Rule of Evidence 1002 states that the original writing, recording, or photograph is required to prove the content of the medium. In the case before us, there is no indication in the record that the DVD sent to Christopher and played at trial was not the original recording of the events that occurred the morning of November 27. Similarly, there is no indication in the record that there was any other filmed surveillance of Tammy or her Colorado home at all. The fact that the invoice from the private investigator listed nine total hours billed to “surveillance/travel” does not suggest that there should have been nine hours of video to review at trial.

¶ 27. The decision as to whether evidence is admissible is within the discretion of the trial court, and its decision will not be reversed unless that discretion is abused. Bower v. Bower, 758 So.2d 405, 414(¶ 40) (Miss.2000). In the case before us, the DVD introduced at trial was properly authenticated by Tammy. Additionally, there is no evidence in the record that the DVD was not the original and complete recording of the surveillance of Tammy. Accordingly, this issue is without merit.

¶ 28. Furthermore, Tammy’s statement that the DVD was the sole evidence presented at trial indicating the possible cohabitation of Tammy and Davis is false. Timothy testified that Davis and his sons spent the night at Tammy’s house every weekend. Such testimony, independent from any conclusions the trial court may have derived from viewing the DVD, would be more than sufficient for the trial court to conclude that there was cohabitation between Tammy and Davis.

III. WHETHER THE TRIAL COURT FAILED TO CONSIDER THE EFFECT OF SEPARATING TIMOTHY FROM HIS HALF-SISTER.

¶ 29. Tammy argues that the trial court did not make the requisite inquiry concerning the separation of Timothy from his half-sister, Carmen, in its finding that the best interest of Timothy warranted a change in custody. She cites Holmes v. Holmes, 958 So.2d 844 (Miss.Ct.App.2007) in support of her claim. This Court in Holmes noted that Mississippi jurisprudence favors keeping siblings under the same roof. Id. at 849(¶ 22). However, in Holmes we found that the trial court did not err in removing the child at issue from the company of his sibling and changing custody. Id. Undoubtedly, “[t]here is no ‘hard and fast’ rule that the best interest of siblings will be served by keeping them together.” Copeland v. Copeland, 904 So.2d 1066, 1076(¶ 43) (Miss.2004).

¶ 30. In the case before us, the trial court addressed the separation of Timothy from Carmen, his three-year-old half-sister, and Josh, Timothy’s eighteen-year-old full brother, during its Albright analysis. It noted that Josh and Timothy had lived together since Timothy was born, and Josh could act as another positive role model for Timothy. The trial court also expressed concern over the allegations of violence surrounding Tammy’s then-current husband, Carmen’s father. In short, the trial court did consider the separation of Timothy from Carmen and Josh in its multi-factor Albright analysis prior to finding that the best interest of Timothy would be served by a change in custody. This issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR.

      . In an effort to protect the privacy of all children involved, their names have been changed.

      . During the initial custody determination, the trial court reserved its ruling as to who should have primary physical custody of Lucy. The issue would not be revisited prior to Lucy reaching the age of majority, and thus, it became moot.

      . See Albright v. Albright, 437 So.2d 1003 (Miss.1983).

      . In the footnote to the above quote, the trial court also stated that it “noticed that the child was uneasy about being forced to choose between being either truthful ... or being loyal to his mother.”


author: WOODALL, Justice.

text:
    EXPRESS ENTERPRISE, INC., d/b/a Express Cash I, II, and III v. James WAITES.
    1060082.
    Supreme Court of Alabama.
    July 6, 2007.
    William J. Baxley and Donald R. James, Jr., of Baxley, Dillard, Dauphin, McKnight & Barclift, Birmingham, for appellant.
    Annesley DeGaris of Cory, Waston, Crowder & DeGaris, P.C., Birmingham; and Erskine R. Funderburg of Trussell & Funderburg, P.C., Pell City, for appellee.
    Richard G. Poff, Jr., Birmingham, for amicus curiae Alabama Pawnbrokers Association, in support of the appellant.
    George W. Walker III and Shannon L. Holliday of Copeland, Franco, Screws & Gill, P.A., Montgomery, for amicus curiae TMS Group, Inc., in support of the appellant.
    Jeffrey L. Ingram of Galese & Ingram, P.C., Birmingham, for amicus curiae Title Pawn Council of Alabama, Inc., in support of the appellant.
    Rhonda Brownstein, Montgomery, for amicus curiae Southern Poverty Law center, in support of the appellee.
   WOODALL, Justice.

Express Enterprise, Inc., d/b/a Express Cash I, II, and III (“Express Enterprise”), appeals from a partial summary judgment for James Waites in an action filed against Express Enterprise by Waites. We reverse and remand.

Express Enterprise is a pawnbroker as defined by § 5-19A-2(4), Ala.Code 1975, a part of the Alabama Pawnshop Act (“the Act”). In August 1998, Waites entered into a pawn transaction with Express Enterprise, obtaining a $400 loan on the security of his pledge of the certificate of title to an automobile he owned. See § 5-19A-2(3) and (6). See also Floyd v. Title Exchange & Pawn of Anniston, Inc., 620 So.2d 576 (Ala.1993) (holding that an automobile certificate of title is “tangible personal property” within the meaning of the Act).

Section 5-19A-7(a) provides that “[a] pawnbroker may contract for and receive a pawnshop charge in lieu of interest or other charges for all services, expenses, costs, and losses of every nature but not to exceed 25 percent of the principal amount, per month, advanced in the pawn transaction.” According to Waites, he paid Express Enterprise more than $900 over the nine months following the pawn transaction. However, he was incurring a pawnshop charge of $100 per month, and, after Waites fell behind on his payments, his automobile was repossessed.

Waites subsequently sued Express Enterprise. The pawnshop charge allowed by the Act exceeds the interest that may be charged on loans subject to the Alabama Small Loan Act, Ala.Code 1975, §§ 5-18-1 through -23. In his complaint, Waites sought, in pertinent part, “a declaratory judgment ... that Section 5-19A-7(a) is unconstitutional as violating equal protection as guaranteed under” the Fourteenth Amendment to the United States Constitution.

Waites filed a motion for a summary judgment on the issue of the constitutionality of § 5-19A-7(a). In his motion, Waites argued that pawnbrokers are “favored over all other ... money lenders,” and that “there is no rational basis for the classification that allows a favored group ... to charge 300% annual interest rate.”

In response to Waites’s motion, Express Enterprise filed its own motion for a partial summary judgment on the issue of the constitutionality of § 5-19A-7(a). Express Enterprise contended that Waites has no standing to raise the equal-protection issue. Alternatively, Express Enterprise argued that there is a rational basis for the pawnshop charge allowed by the Act.

The trial court concluded that “the portion of the ... Act that allows an interest rate charge of 25% per month on car title pawns must be struck down as a violation of equal protection” and entered a declaratory judgment to that effect. The trial court certified its judgment declaring § 5-19A-7(a) unconstitutional as final pursuant to Ala. R. Civ. P. 54(b), and Express Enterprise timely appealed to this Court. The alternative basis for affirmance asserted by Waites on appeal, which deals with the applicability of the Act, is beyond the limited scope of our appellate jurisdiction.

We first consider whether Waites has standing to contend that § 5-19A-7(a) violates the Equal Protection Clause of the Fourteenth Amendment. “ ‘A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights.’ ” State v. Woodruff, 460 So.2d 325, 328 (Ala.Crim.App.1984) (quoting Bland v. State, 395 So.2d 164, 166 (Ala.Crim.App.1981)). See also Mosley v. State, 255 Ala. 130, 132, 50 So.2d 433, 435 (1951) (“The discriminatory feature of the act must directly affect the constitutional rights of the person complaining.”). “Where a particular litigant is not within the group of persons affected by a statute or portion thereof which is allegedly unconstitutional, such litigant lacks standing to raise such constitutional issue.” Fletcher v. Tuscaloosa Fed. Sav. & Loan Ass’n, 294 Ala. 173, 178, 314 So.2d 51, 56 (1975).

Express Enterprise argues that ‘Waites does not have standing to challenge the constitutionality of the Alabama Pawnshop Act on equal protection grounds because he is a consumer, not a lender.” Express Enterprise’s brief, at 10. In other words, according to Express Enterprise, “Waites is not within a group of individuals that have been allegedly arbitrarily discriminated against,” because the “so-called ‘favored class of pawnbrokers’ is not favored over Waites because he is not a lender.” Express Enterprise’s brief, at 11.

Waites describes himself as “a pawnshop borrower,” Waites’s brief, at 32, and, of course, does not claim to be a lender. Further, it is obvious that the Act neither classified Waites as a “pawnshop borrower” nor required him to engage in a pawn transaction. However, Waites claims to have standing to assert an equal-protection challenge to § 5-19A-7(a) merely because he was “encumbered by [an] arbitrarily excessive” pawnshop charge that was “more [than the] interest [that may be lawfully charged to] non-pawnshop borrowers.” Waites’s brief, at 31, 33. We agree with Express Enterprise that Waites has no standing to raise the equal-protection issue.

In Casey v. Travelers Insurance Co., 531 So.2d 846 (Ala.1988), Casey, a borrower, sued Travelers, his lender, alleging, in pertinent part, “violations of Ala.Code 1975, § 15-19-1 et seq., generally known as the Alabama Mini-Code.” 531 So.2d at 846-47. “The first question to be decided by this Court [was] whether the trial court was correct in concluding that the licensing requirements of the Mini-Code [did] not apply.” 531 So.2d at 847. The Court concluded that Travelers was “exempt from licensing,” and agreed with the trial court “that the [only applicable] provisions of the Mini-Code were not violated by the terms of the loans,” 531 So.2d at 848, from Travelers to Casey.

Like Waites, Casey contended that the legislature’s failure to more strictly regulate the business of his lender amounted to a denial of the equal protection guaranteed to him by the Fourteenth Amendment. However, this Court concluded that Casey lacked standing to assert that constitutional claim:

“Casey’s next contention is that exclusion of Travelers from the licensing provisions of the Mini-Code is a denial of the equal protection guaranteed by the fourteenth amendment. We conclude, however, that Casey has no standing to raise this issue. As the Court said of standing in Fletcher v. Tuscaloosa Federal Savings & Loan Ass’n, 294 Ala. 173, 178, 314 So.2d 51, 56 (1975), “Where a particular litigant is not within the group of persons affected by the statute or portion thereof which is allegedly unconstitutional, such litigant lacks standing to raise such constitutional issue. Marcet v. Board of Plumbers Examination and Registration of Alabama, 249 Ala. 48, 50, 29 So.2d 333 (1947); State ex rel. Highsmith v. Brown Service Funeral Co., 236 Ala. 249, 253-54, 182 So. 18 (1938).’ ”

531 So.2d at 848-49. Although Waites, like Casey, may have been “tangentially affected,” Express Enterprise’s reply brief, at 7, by the Act, he was not directly affected in the manner necessary to confer upon him standing to raise the equal-protection issue.

For the foregoing reasons, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and SEE, LYONS, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.