author: ISHEE, J.,

text:
    Daniel Athion WATKINS, Appellant v. Carlene Kim (Nee: Benson) WATKINS, Appellee.
    No. 2005-CA-00257-COA.
    Court of Appeals of Mississippi.
    May 9, 2006.
    Rehearing Denied Aug. 22, 2006.

      Tina Marie Dugard Scott, attorney for appellant.
    Rex F. Sanderson, Houston, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. On December 10, 2004, Daniel Ath-ion Watkins was cited with a second order of contempt in the Chickasaw County Chancery Court for failure to pay child support to his wife, Carlene Kim Benson Watkins, from whom he was legally separated. The chancery court also found him in contempt for failure to pay attorney’s fees and court costs, pursuant to the first order of contempt, which was entered on June 25, 2004. Aggrieved by the judgment against him, Mr. Watkins appealed. He raises the following issues for this Court’s review, which we list verbatim:

1.Did the lower court err in refusing to order separate maintenance payments cease when the Wife testified under oath that she was unwilling to resume cohabitation with the Husband?
2. Should it be found that separate maintenance was just and equitable in [the case] sub judice, did the lower court err in not conducting an on the record analysis to determine the amount of separate maintenance?
2(A) Relative thereto, did the lower court err in ordering Husband to pay in excess of 75% of his modest net income as child support and separate maintenance?
3. Did the lower court err in finding Husband in willful contempt without regard to his ability or inability to pay the previously ordered amounts?

FACTS

¶ 2. Mr. Watkins and Mrs. Watkins were married on July 30, 1983. During the course of their marriage, the couple had three children. Mr. Watkins and Mrs. Watkins separated on or about July 31, 2001. At the time of their separation, the couple’s oldest child was emancipated; the other children, born on October 30, 1990, and January 6, 1995, were still minors.

¶ 3. On September 23, 2003, Mrs. Watkins filed a petition for custody and other relief in the Chancery Court of Chickasaw County. A hearing was held, and on December 4, 2003, the chancery court entered a judgment for separate maintenance. The court found that Mr. Watkins should be required to provide child support, as well as medical and dental care for the children. Specifically, the court ordered Mr. Watkins to pay child support to Mrs. Watkins in the amount of $106.38 per week, and to pay $365 per month to his (Mr. Watkins’s) mother for rental of both the marital home and the family minivan (a 1996 Plymouth Voyager). The judgment further instructed Mr. Watkins to provide and to pay all expenses of a comparable home, should Mrs. Watkins and the children be evicted from the marital home. Likewise, Mr. Watkins was required to provide Mrs. Watkins with comparable transportation, should the minivan be repossessed.

¶4. On March 9, 2004, Mrs. Watkins filed a complaint for contempt alleging that Mr. Watkins failed to pay the indebtedness on the marital home and the minivan, which was necessary to prevent eviction and repossession by Mr. Watkins’s mother. Mrs. Watkins further alleged that Mr. Watkins repossessed the minivan, that he was using it for his own purposes, and that he substituted the minivan for the parties’ older van, which was in very poor repair. Mrs. Watkins also alleged that Mr. Watkins failed to pay the phone bill and $660 in orthodontic expenses for one of the children. Additionally, Mrs. Watkins alleged that Mr. Watkins failed to timely pay the cost of piano and dance lessons for the children, and that he failed to maintain and repair the marital home.

¶ 5. A hearing was held on May 27, 2004. On June 25, 2004, the chancery court entered an order finding Mr. Watkins in contempt for failure to provide Mrs. Watkins with an adequate vehicle, and failure to provide her and the children with housing comparable to the housing that they occupied from December 2003 until May 2004. The court ordered Mr. Watkins to pay car rental in the amount of $100 per month, and housing rental in the amount of $150 per month, until he provided an adequate vehicle or housing. Mr. Watkins was also ordered to pay all utilities, all recurring orthodontic, dance and piano expenses of the minor children, and Mrs. Watkins’s attorney’s fees in the amount of $400.

¶ 6. On August 27, 2004, Mrs. Watkins filed a second complaint for contempt alleging that Mr. Watkins failed to pay $398.80 in child support and $400 in attorney’s fees. Mrs. Watkins further alleged that Mr. Watkins failed to timely pay the water and electricity bills, as well as the telephone bill, which resulted in the disconnection of phone service to her mobile home.

¶ 7. On October 11, 2004, Mr. Watkins filed a petition to modify the previous order of the court. He argued that Mrs. Watkins’s employment, acquired subsequently to the judgment for separate maintenance, which brought in a total net income in excess of $1,100 per month, constituted a material change in circumstances sufficient to warrant a modification of the separate maintenance order. Based on the parties’ income, Mr. Watkins requested that the court terminate all obligations except for child support.

¶ 8. A hearing was held on November 18, 2004. On December 10, 2004, the chancery court entered an order finding Mr. Watkins in contempt for failure to pay child support, attorney’s fees, and court costs. The court ordered Mr. Watkins to pay past due child support in the amount of $496.87, and prior attorney’s fees in the amount $400. Mr. Watkins was also ordered to pay Mrs. Watkins’s current attorney’s fees in the amount of $500. The court further determined that Mr. Watkins was not entitled to a modification of the orders of the court, and that the judgment for separate maintenance would remain in full effect.

¶ 9. On December 17, 2004, Mr. Watkins filed a motion to amend and/or alter judgment; and/or for relief from previous judgment and orders. The chancery court entered an order denying the motion on January 7, 2005. The court held that Mr. Watkins’s challenges to judgments filed prior to December 10, 2004 were untimely, and therefore, without merit. Regarding the judgment filed on December 10, 2004, the court further determined that Mr. Watkins’s motion was without merit. Aggrieved by the chancery court’s decision, Mr. Watkins appealed.

STANDARD OF REVIEW

¶ 10. Our review of domestic relations matters is limited. Carrow v. Carrow, 741 So.2d 200, 202 (¶ 9) (Miss.1999). The chancellor’s findings of fact will not be disturbed on appeal if they are supported by substantial credible evidence. Pacheco v. Pacheco, 770 So.2d 1007, 1009(¶ 8) (Miss.Ct.App.2000) (citing Dunaway v. Busbin, 498 So.2d 1218, 1221 (Miss.1986)). We will not reverse the decision of a chancery court unless the chancellor abused his or her discretion, was manifestly in error, or applied an erroneous legal standard. Carrow, 741 So.2d at 202(¶ 9) (citing Turpin v. Turpin, 699 So.2d 560, 564(¶15) (Miss.1997)).

ISSUES AND ANALYSIS

1. Did the lower court err in refusing to order separate maintenance payments cease when the Wife testified under oath that she was unwilling to resume cohabitation with the Husband?

¶ 11. Mr. Watkins argues that the chancery court erred in finding that he did not make a good faith offer to reconcile. He argues that the ruling of the chancery court suggests that Mr. Watkins had a duty to physically attempt to enter the home in order for his reconciliation attempt to be deemed sufficient. Consequently, Mr. Watkins argues that the chancery court applied an erroneous legal standard in determining that the judgment of separate maintenance should not be terminated.

¶ 12. “A decree for separate maintenance commands the husband to resume cohabitation with his wife, or in default thereof, to provide her suitable maintenance until there may be a reconciliation.” Day v. Day, 501 So.2d 353, 357 (Miss.1987) (citing Tanner v. Tanner, 481 So.2d 1063, 1064 (Miss.1985); King v. King, 246 Miss. 798, 802, 152 So.2d 889, 890-91 (1963)). The wife’s right to separate maintenance terminates if the husband makes an offer, in good faith, “to cohabit and treat the wife with conjugal kindness.” Id. (citing J.W. Bunkley & W.E. Morse, Amis on Divorce and Separation in Mississippi § 7.06 (2d ed. 1957)).

¶ 13. In Day, the husband presented evidence that his wife refused his offer of reconciliation with the words: “over my dead body.” Id. The wife testified that the husband had no intention to reconcile, and that he was seeking a divorce. Id. The chancery court determined that the husband’s request to be allowed to come home did not constitute a good faith offer to resume a proper marital relationship, as he expressed neither regret nor repentance, nor promised to be a proper husband if permitted to return. Id. The Supreme Court of Mississippi found that the chancery court’s findings were supported by substantial evidence. Id.

¶ 14. During the November 18, 2004 hearing, Mr. Watkins testified that Mrs. Watkins refused his offer to move back home. His alleged offer consisted of the following statement: “you don’t want me moving back in.” Mr. Watkins conceded, however, that this exchange took place during a discussion about settling a divorce. Mrs. Watkins echoed this concession during redirect examination, explaining that Mr. Watkins came to her house and asked if she had gotten his proposal regarding a divorce settlement agreement. She further testified that she was not aware that they were having a discussion about getting back together, and that Mr. Watkins was living with his girlfriend at the time of the exchange.

¶ 15. Based on these facts, the chancery court determined that there would be no termination of separate maintenance because Mr. Watkins did not make a good faith offer to reconcile. We find that there is substantial evidence to support the chancery court’s finding. Similar to the husband in Day, Mr. Watkins was seeking a divorce, and he expressed neither regret nor repentance during his alleged offer to reconcile. Therefore, this issue is without merit.

2. Should it be found that separate maintenance was just and equitable in [the case] sub judice, did the lower court err in not conducting an on the record analysis to determine the amount of separate maintenance?

2(A) Relative thereto, did the lower court err in ordering Husband to pay in excess of 75% of his modest net income as child support and separate maintenance?

¶ 16. Mr. Watkins urges this Court to determine whether the chancellor erred when she entered the original judgment of separate maintenance without including written findings that the amount of support ordered was just and equitable. Rule 4(a) of the Mississippi Rules of Appellate Procedure requires that notice of appeal “be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” Because Mr. Watkins did not appeal the original judgment of separate maintenance, we do not have jurisdiction to review it. We do have jurisdiction, however, to review the judgment entered on December 10, 2004. Rule 4(d) of the Mississippi Rules of Appellate Procedure provides that, if a party timely files a motion to alter or amend the judgment, “the time for appeal for all parties runs from the entry of the order disposing of the ... motion.” Mr. Watkins timely filed his motion to amend within ten days of entry of judgment, on December 17, 2004. The court disposed of his motion on January 7, 2005, and Mr. Watkins timely filed his notice of appeal on January 31, 2005. Therefore, we may review the December 10 judgment to determine whether the denial of modification of separate maintenance was supported by substantial evidence.

¶ 17. In order for Mr. Watkins to obtain a modification of the separate maintenance order, he must show that there has been a material or substantial change of circumstances since the order was entered. Kennedy v. Kennedy, 650 So.2d 1362, 1367 (Miss.1995) (citing Landrum v. Landrum, 498 So.2d 1229, 1230 (Miss.1986)). Mr. Watkins did not allege a material or substantial change of circumstances in his motion to amend and/or alter judgment; and/or for relief from previous judgment and orders, which was filed on December 17, nor does he do so in his brief to this Court. Nonetheless, we have reviewed the record for evidence of a material or substantial change of circumstances, and we have not found evidence sufficient to conclude that the chancellor erred in ordering that the judgment of separate maintenance remain in effect.

¶ 18. In 2003, at the time of the hearing for separate maintenance, Mr. Watkins was a truck driver for Chickasaw Wood in Houston, Mississippi. His adjusted gross income was $2,241.50 per month. Subsequent to that hearing, Mr. Watkins left Chickasaw Wood and took a job working in the factory of Franklin Corporation (Franklin). Although his financial declaration for the May 27, 2004 hearing reflected that his adjusted gross income had decreased to $1,566.02 per month, Mr. Watkins testified that he had received two raises since completing that financial declaration. By the time of the November 18, 2004 hearing, Mr. Watkins’s adjusted gross income had increased to $1,843.39 per month. During the hearing, Mr. Watkins testified that his gross pay was $20 less per week, but that his job with Franklin provided him with medical and dental insurance, unlike his job with Chickasaw Wood.

¶ 19. In Riley v. Riley, 884 So.2d 791, 794(¶ 13) (Miss.2004), the Mississippi Supreme Court upheld the chancellor’s determination that a decrease in gross pay of $100 per month, coupled with a slight increase in expenses, was not a material or substantial change to warrant the modification of child support. Unlike the circumstances in Riley, although Mr. Watkins’s income decreased since the entry of the judgment for separate maintenance, his expenses did not increase. Mr. Watkins was originally ordered to pay $365 per month for rent of the marital home and minivan. When Mrs. Watkins was evicted from the marital home and her minivan was repossessed, she began renting a trailer for $150 per month and a car for $100 per month. Although the court found Mr. Watkins in contempt and ordered him to find comparable housing and transportation for his wife and children, it also lowered his rental payments to $250 per month. Thus, the facts in case sub judice present even less evidence of a material or substantial change of circumstances than did the facts in Riley. Consequently, we are not persuaded that the chancellor abused her discretion, was manifestly in error, or applied an erroneous legal standard. This issue is without merit.

3. Did the lower court err in finding Husband in willful contempt without regard to his ability or inability to pay the previously ordered amounts?

¶ 20. In a contempt action for failure to pay child support, when the party entitled to receive support introduces evidence that the party required to pay has failed to do so, a prima facie case of contempt has been established. McIntosh v. Department of Human Services, 886 So.2d 721, 724(¶ 11) (Miss.2004) (citing Guthrie v. Guthrie, 537 So.2d 886, 888 (Miss.1989)). Accordingly, the burden shifts to the paying party to show an inability to pay, or other defense, by clear and convincing evidence. Id. (citing Shelton v. Shelton, 653 So.2d 283, 286-87 (Miss.1995)). The chancellor has substantial discretion to determine whether a party is in contempt. Id. at 725. Furthermore, we will not reverse the chancellor’s decision unless it is manifestly erroneous. Id. (citing Premeaux v. Smith, 569 So.2d 681, 683 (Miss.1990)).

¶ 21. Mr. Watkins argues that, due to his inability to pay, it was inequitable for the chancery court to cite him for contempt for his failure to pay child support, attorney’s fees, and courts costs. In support of his position, Mr. Watkins cites Davis v. Davis, 268 So.2d 913, 916 (Miss.1972), and asserts that he “would have to be a financial genius or a magician in order to comply with [the judgment of separate maintenance].” The circumstances in Davis are distinguishable from those of the case sub judice.

¶ 22. In Davis, the chancery court entered a divorce decree on July 3, 1971, requiring the husband to pay certain accounts of family debt, in addition to periodic alimony, child support, and attorney’s fees. Id. at 914. In July of 1971, the wife filed a petition to find the husband in contempt for his failure to pay the accounts of family debt, although no time period had been set for him to pay those accounts. Id. The husband responded with a petition to modify the alimony and other payments, but the chancery court found no material change in circumstances and declined to modify the divorce decree. Id. The court entered a decree in the contempt proceedings on August 24, 1971, which ordered the husband to pay $85 per month toward satisfaction of the accounts in question, and instructed him that failure to do so would result in citation for contempt. Id. at 915. The Mississippi Supreme Court affirmed the chancery court’s denial of modification of the divorce decree, but reversed its ruling on contempt. Id. at 916 The supreme court found that ordering the husband to pay $85 per month toward the satisfaction of the accounts was inequitable, as he earned only $550 per month and was required to pay $465 in alimony and support. Id. at 915. The supreme court further determined that the chancery court erred in attempting to find the husband in contempt “prior to proof that he had willfully violated the provisions of the decree of August 24.” Id. at 916.

¶ 23. Unlike the husband in Davis, Mr. Watkins was not cited for contempt for failure to pay accounts of marital debt; he was cited for contempt for failure to pay child support, and for failure to pay attorney’s fees and court costs that Mrs. Watkins incurred during the first contempt proceedings. Mr. Watkins’s child support obligations amounted to $106.38 per week and, at the time of the November 18, 2004 hearing, his adjusted gross income was $1,843.39 per month. This hardly rises to the level of inequity in Davis, where the contempt order left the husband with nothing on which to live. Moreover, Mr. Watkins has failed to show inability to pay by clear and convincing evidence. Thus, we conclude that the chancery court did not err in citing Mr. Watkins with contempt. This issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ROBERTS, JJ., CONCUR.

      . Mr. Watkins's mother owned the marital home and the minivan used by Mrs. Watkins and the children.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Christopher CARBIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00819-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.
    Rehearing Denied Sept. 12, 2006.

      Christopher Carbin, appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Christopher Carbin pled guilty to three counts of kidnaping, armed robbery, jail escape, conspiracy to commit jail escape, aggravated assault on a law enforcement officer, and grand larceny. He was sentenced to serve a total of forty-five years in the custody of the Mississippi Department of Corrections. He filed his petition for post-conviction relief, which was dismissed by the Honorable Andrew C. Baker as both time-barred and as a successive writ. On appeal, Carbin argues that: (1) his sentence is illegal, (2) the indictment failed to allege an essential element, and (3) his attorney was ineffective. We find no error and affirm.

FACTS

¶ 2. Carbin went to trial on an eight count indictment for a series of crimes connected with a jail escape. On the second day of trial, April 25, 1988, he decided to plead guilty to all counts. He noted several times that he was pleading to all counts. At one point, he claimed he was not actually guilty of one of the kidnaping charges (kidnaping John Blakely), the aggravated assault charge and the conspiracy charge. The judge asked him to explain, and he admitted to being a principal in Blakely’s kidnaping and the conspiracy charge, and to aiding and abetting on the aggravated assault charge. Later he continued to plead guilty to all counts.

¶ 3. In 1989, he filed a motion for post-conviction relief that was denied. He did not appeal. In 1994, he filed a second motion for post-conviction relief that was denied. He appealed, and the supreme court affirmed. On December 10, 2004, Carbin filed this latest motion for post-conviction relief. The court denied the motion as time-barred, a successive writ, and without merit.

STANDARD OF REVIEW

¶ 4. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

¶ 5. Generally, a prisoner is barred from bringing a successive motion for post-conviction relief. Miss.Code Ann. § 99-39-23(6) (Supp.2005). There are four listed exceptions. Id. Of these, Carbin claims there is an intervening United State Supreme Court decision which would have caused a different result in his sentence, and his probation and parole have been unlawfully revoked. Id. We turn now to the only issue under which he raises these two exceptions.

I.Illegal sentence

¶ 6. Carbin complains that his sentence is illegal on several grounds: (1) he was sentenced in violation of his right to a trial by jury, (2) he was sentenced to a term more than life in violation of Mississippi Code Annotated section 97-3-79, (3) there was no proof that he was an habitual offender, and (4) he did not plead guilty to the kidnaping of Blakely, aggravated assault, or conspiracy. However, he only claims that one of these sub-issues survives the successive writ bar.

A. Did the sentence violate Carbin’s Sixth Amendment right to a jury trial?

¶ 7. Carbin cites us to the decisions of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). He argues that these cases show that the State’s procedure for increasing a sentence under the Habitual Offender Statute violates the Sixth Amendment right to a trial by jury. He also argues that this issue also falls under the “unlawfully revoked parole” exception. Since the Habitual Offender Statute prevented him from parole eligibility, and the statute violates the Sixth Amendment, he argues his parole has been unlawfully revoked. The State argues that both cases except habitual offender statutes from their holdings.

¶ 8. By pleading guilty, Carbin waived his right to a jury trial. Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). Therefore, he has no standing to claim his right to a jury trial was violated. We affirm the lower court’s holding that this issue is barred as a successive writ.

II. Did the indictment fail to allege an essential element of the crime of kidnaping?

III. Was Carbin’s attorney unconstitutionally ineffective?

¶ 9. It is the burden of the defendant to prove by a preponderance of the evidence that his claims are not barred as successive writs. Miss.Code Ann. § 99-39-23(7) (Supp.2005). Carbin does not even allege that these issues survive the successive writ bar. Therefore, we affirm the lower court’s holding that Carbin’s remaining arguments are barred as well.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY DISMISSING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

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


author: ROBERTS, J., IRVING, J.,

text:
    Edward SESSOM a/k/a Wayne Sessom, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02511-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.
    Rehearing Denied Aug. 22, 2006.
    Jack R. Jones, Southaven, attorneys for appellant.

      Office of Attorney General by Jacob Ray, attorneys for appellee.
   ROBERTS, J.,

for the Court.

¶ 1. A DeSoto County jury convicted Edward Sessom of felony escape. The court sentenced him to serve five years in the custody of the Mississippi Department of Corrections. Aggrieved, Sessom appeals and asserts that the trial court erred (1) in denying his motion for a directed verdict, motion for a judgment notwithstanding the verdict, and motion for a new trial, and (2) in allowing the prosecution to impeach a defense witness with proof of a prior conviction. Finding no error, we affirm.

FACTS

¶ 2. On May 13, 2004, Sessom was scheduled to stand trial for conspiring to bring marijuana into the DeSoto County Jail. The trial was set to take place before Circuit Judge George Ready. However, Sessom failed to appear at the appointed time, so Judge Ready dismissed the attorneys and the jury. Later, as Judge Ready was presiding over other court matters, a court employee informed him that Sessom had arrived at the courthouse.

¶ 3. Judge Ready, accompanied by the bailiff, conversed with Sessom about his failure to appear for trial. Judge Ready explained to Sessom that his bond had been revoked as a result of his failure to appear earlier that day. Judge Ready then ordered the bailiff to take Sessom into custody to secure his presence at the next trial date. The bailiff took Sessom into custody and escorted him to a holding room within the courthouse. Thereafter, Sessom exited the holding room to converse with his attorney. The bailiff followed Sessom out of the holding room, maintained a hold of him and reminded him that he was still under arrest. As the bailiff attempted to handcuff Sessom, Ses-som broke free and fled from the courthouse.

¶ 4. An arrest warrant was issued for Sessom, and shortly thereafter, Memphis police officers, acting on a Crime Stoppers’s tip, discovered Sessom hiding in an abandoned house in Memphis. The officers took Sessom into custody based on the Mississippi warrant. Sessom was subsequently indicted, tried and convicted of felony escape under Mississippi Code Annotated section 97-9-49(1) (Rev.2000).

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Post-trial Motions

¶ 5. Sessom contends that the trial court erred in overruling his motions for directed verdict, judgment notwithstanding the verdict, and motion for a new trial. We address each in turn.

¶ 6. A motion for a directed verdict or judgment notwithstanding the verdict both challenges the legal sufficiency of the evidence presented at trial. The Mississippi Supreme Court has stated:

that in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” However, this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Conversely, a motion for a new trial challenges the weight of the evidence. “The evidence should be weighed in the light most favorable to the verdict.” Id. at (¶ 21). We will only disturb a verdict when it is “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (citing Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss. 2005)).

¶ 7. Sessom argues that the proof fails to support his conviction for felony escape. He contends that he was arrested for contempt of court, that is, failing to appear on time for trial on the conspiracy charge, which is a misdemeanor offense. Therefore, Sessom urges us to reverse his conviction and remand for proper sentencing under the dictates of Mississippi Code Annotated Section 97-9^49(1), which states:

Whoever escapes or attempts by force or violence to escape from any jail in which he is confined, or from any custody under or by virtue of any process issued under the laws of the State of Mississippi by any court or judge, or from the custody of a sheriff or other peace officer pursuant to lawful arrest, shall, upon conviction, if the confinement or custody is by virtue of an arrest on a charge of felony, or conviction of a felony, be punished by imprisonment in the penitentiary not exceeding five (5) years to commence- at the expiration of his former sentence, or, if the confinement or custody is by virtue of an arrest of or charge for or conviction of a misdemean- or, be punished by imprisonment in the county jail not exceeding one (1) year to commence at the expiration of the sentence which the court has imposed or which may be imposed for the crime for which he is charged.

(emphasis added).

¶ 8. It is important to understand Ses-som’s status on May 13, 2004. On that date, Sessom was supposed to appear for his trial on three counts relating to an alleged attempt to smuggle drugs into the Desoto County Jail. Specifically, count one charged Sessom with the felony of conspiracy to smuggle drugs into the jail in violation of Section 97-1-1 (a) of the Mississippi Code. Count two charged Sessom with the felony of bringing controlled substances into the jail in violation of Section 47-5-198 of the Mississippi Code. Count three charged Sessom with an attempt to possess illegal controlled substances in the Desoto County Jail. All three counts are felony crimes.

¶ 9. The trial exhibits included the general affidavit and warrant signed by Justice Court Judge Ken Adams. Those documents charged Sessom with the conspiracy to bring drugs into a correctional facility and included a scheduling order that indicated that a $5,000 bond had been set. Sessom made bond on the felony charge. By statute, the conditions of Sessom’s bond required his appearance at the next regularly scheduled grand jury to await action and remain day to day and term to term until discharged according to law. See Miss.Code Ann. § 99-5-1 (Rev.2000).

¶ 10. On May 13, 2004, the circuit court judge, the district attorney, Sessom’s defense counsel, the jury pool, the court reporter, witnesses, and everyone else was present and ready to afford Sessom his constitutional right to a fair and impartial trial — everyone except Sessom. He failed to appear. As such, he violated the condition of his felony bond. The circuit court judge had no option but to dismiss the jurors, revoke Sessom’s bond, issue a bench warrant for Sessom’s arrest, and direct the circuit clerk to enter a judgment nisi on Sessom’s bondsman. See Miss. Code Ann. § 99-5-25(l)(a) (Rev.2000).

¶ 11. On May 13, 2004, Sandoval v. State, 631 So.2d 159 (Miss.1994) was the law in Mississippi. Pursuant to Sandoval, the circuit court had no authority to try Sessom in his absence and the trial judge did not have the option to proceed with trial. Id. at 164. Additionally, the trial judge followed the requirements of Section 99-5-25 of the Mississippi Code. According to that Section:

If a defendant ... fails to appear for any proceeding as ordered by the court, then the court shall order the bail forfeited and a bench warrant issued at the time of nonappearance. The purpose of bail is to guarantee appearance and bail shall not be forfeited for any other reason. Upon declaration of such forfeiture, the court shall issue a judgment nisi. The clerk of the court shall notify the surety of the forfeiture by writ of scire facias within five (5) working days of the entry of such order of judgment nisi either by personal service or by certified mail.

Miss.Code Ann. § 99-5-25(l)(a).

The Legislature did not amend Section 99-17-9 of the Mississippi Code until July 1, 2005. That amendment effectively overruled Sandoval as it relates to trial of a felony offender in his absence.

¶ 12. So, what was Sessom’s legal status when he showed up in the courtroom two hours after the jury had been discharged? Put simply, he was an indicted alleged felon who had violated the condition of his appearance bond when he failed to appear for trial. Judge Ready told him that in the courtroom. Judge Ready specifically told Sessom that his bond was revoked and that he was placed in the custody of the sheriff so that he would be guaranteed to appear at his next scheduled trial date. Sessom got his information straight from the proverbial horse’s mouth. It was only afterwards that Ses-som forcibly broke away from the deputy sheriff and fled the courthouse.

¶ 13. Sessom was convicted under Section 97-9-49(1) of the Mississippi Code. A common sense reading of the statute mandates the conclusion that a defendant who escapes custody from an underlying felony charge has committed a new felony; whereas, a defendant who escapes custody from an underlying misdemeanor charge has committed a new misdemeanor offense. A defendant who escapes the courthouse during a recess in his capital murder trial has not committed a misdemeanor. Conversely, a public drunk who runs away from an officer attempting to place him in handcuffs does not have to worry about five years in the penitentiary.

¶ 14. Sessom’s appeal counsel suggests that Sessom was in contempt of court. Nowhere in this record is there any proof that Sessom was ever charged with contempt of court. Was it constructive contempt or direct contempt? When was his trial scheduled on the contempt charge? Where is the court order that compels Sessom to be present on May 13, 2004? Where is the warrant for his arrest on contempt? Contempt of court was solely an idea of Sessom’s attorney after his client’s conviction. It certainly cannot be classified as a lesser-ineluded offense of felony escape. What is more, counsel for Sessom cites Williams v. State, 420 So.2d 562 (Miss.1982) as his authority. Williams was decided based upon Section 97-9-51 of the Mississippi Code. Id. at 563. In 1983, the Mississippi Legislature repealed Section 97-9-51. Thus, Sessom relies on a case that not only interpreted a different statute than the one under which Sessom was convicted; Sessom relies on a case that intex-prets a statute that has since been repealed. Williams can hardly be said to have a binding effect on the present matter.

¶ 15. According to our reading of the statute, one commits the crime listed in 97-9-49(1) under three disjunctive circumstances: when he or she (a) escapes from jail, or (b) escapes from custody by virtue of process issued by a court or judge, or (c) escapes from custody of a sheriff or some other peace officer pursuant to lawful arrest. If a defendant qualifies under either of those three disjunctive circumstances, he has committed a crime. Thereafter, the question of sentencing arises. It is over the appropriate sentencing that I collegially disagree with the dissent. The dissent concludes that Ses-som was arrested for failing to timely appear for trial. We would hold otherwise. Sessom was initially arrested and placed into custody for three felony charges. Sessom secured his temporary and conditional release via his appearance bond. When Sessom violated his appearance bond, the circuit court judge revoked Ses-som’s bond and ordered Sessom to be returned to custody — imposed due to the underlying felony charges. Accordingly, he was not in custody for failure to timely appear at trial. Rather, he was in custody because his bond had been revoked on the three felony charges. His appearance bond may have placed a temporary “gap” in that custody, but it does not alter the underlying reasoning for his custody. Ses-som would never have executed an appearance bond but for his arrest and subsequent indictment for the three felony charges against him.

¶ 16. The dissent notes that bond jumping is a misdemeanor. I agree. However, the record lacks any indication that Ses-som was ever indicted or otherwise charged with bond jumping. I do not dispute that Sessom could have been charged with bond jumping, given his failure to appear at trial. As discussed above, we interpret the statute on escape to connect to the original reason Sessom was in custody: the three felony charges related to his attempt to smuggle drugs into a correctional facility, notwithstanding that there was an additional possible misdemeanor charge.

¶ 17. The evidence in this case is without any significant dispute. Sessom escaped from lawful custody. Sessom was taken into custody because he violated the conditions of his felony appearance bond on the underlying felony charge of conspiring to smuggle drugs into a correctional facility. We have previously held that one who escapes from custody while being held on felony charges commits felony escape and is subject to the punishment provisions of Section 97-9-49(1). See Cressionnie v. State, 797 So.2d 289(1117) (Miss.Ct.App.2001); Edget v. State, 791 So.2d 311(¶ 5) (Miss.Ct.App.2001). If stare deci- sis stands for anything, it stands for consistency.

2. Impeachment of Witness

¶ 18. Sessom argues that the court erred in allowing the prosecution to introduce the fact that Charlene Thomas had been convicted of the crime of conspiracy to bring drugs into a prison facility. In support of this argument, Sessom cites Rule 609(a)(1) of the Mississippi Rules of Evidence for the proposition that the court must determine that the probative value of a prior conviction outweighs its prejudicial effect before allowing its admittance.

Rule 609(a)(1) states:

For the purpose of attacking the credibility of a witness, (1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and (B) a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party.

¶ 19. In his brief, Sessom argues that in deciding to allow the prosecution to impeach Thomas with proof of a prior conviction, the court essentially “tainted” the credibility and veracity of the one person who was an eyewitness to the events leading to his felony escape charge. According to Sessom, “the trial judge did not show why the conviction was probative as to the credibility of the witness.” The Comment to Rule 609 states: “when the impeachment by convictions is of a witness other than the accused in a criminal case there is little or no unfair prejudice which can be caused to a party. Thus, the probative value of the credibility of the witness will almost always outweigh any prejudice.”

¶ 20. The Mississippi Supreme Court has also spoken on the admissibility of prior convictions of nonparty witnesses under Rule 609: “Even where the non-party witness being impeached is one party’s primary or sole witness, evidence of a prior conviction of that witness must be admitted if the requirements of Rule 609(a) ... are met.” Moore v. State, 787 So.2d 1282(¶ 26) (Miss.2001). In order to lessen the possibility of any prejudicial effect to Sessom that may have been caused by allowing Thomas to be impeached with proof of a prior conviction under Rule 609, the court ruled that Thomas’s conviction would be allowed into evidence, but informed the prosecution that it would not be allowed to mention that Thomas’s conviction was in any way related to Sessom’s current charge.

¶ 21. The record reflects that the prosecution abided by the restriction placed on it by the trial judge, notwithstanding Ses-som’s contention to the contrary. The prosecution asked only one question regarding Thomas’s criminal record, and did not mention her conviction for conspiring with Sessom to bring drugs into the DeSo-to County jail. The exchange between the prosecution and Thomas was as follows:

Q. Ms. Thomas, can we agree you’re a convicted felon?
A. Yes, ma’am.
Q. Is it fair to say that you don’t want the defendant [Sessom] to go to jail?
A. I don’t want nobody to go to jail. I didn’t want to go to jail, but I went to jail.
Q. Did you see the defendant [Sessom] on Most Wanted?
A. No, I didn’t. I was incarcerated.
Q. Did the defendant [Sessom] leave the courthouse?
A. I presume he did because they was [sic] saying he was gone. So I don’t know where he went to because I was in the back. I was handcuffed. I couldn’t go nowhere until they came and got me.

The above exchange illustrates that Thomas volunteered the damaging testimony of which the defense now complains.

¶ 22. We find no merit to the contention that the trial court improperly allowed Thomas to be impeached by her prior felony conviction for conspiring with Sessom to bring marijuana into the DeSoto County Jail. For the foregoing reasons, we affirm.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF FELONY ESCAPE AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ„ CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY KING, C.J.

IRVING, J.,

Dissenting.

¶ 24. I find the evidence insufficient to sustain Sessom’s conviction for felony escape, although I find it sufficient to support a conviction of misdemeanor escape. Consequently, I respectfully dissent. I would reverse Sessom’s conviction for felony escape, and remand to the trial court for re-sentencing on misdemeanor escape.

¶ 25. The facts are sufficiently set forth in the majority opinion. Therefore, I will not repeat them here, except to add that when Sessom escaped from the bailiff, no order had been entered revoking his bond. Also, the encounter with Sessom wherein Judge Ready explained to Sessom that Sessom’s bond had been revoked did not occur during the court proceeding where the bench pronouncement was made.

¶ 26. Notwithstanding that Sessom had been legally released from jail on the original charges and no order had been entered revoking his bond, the majority finds that when Sessom escaped from the bailiff, he was in custody on the original felony charges. Mississippi Code Annotated Section 97-9-49(1), which states:

Whoever escapes or attempts by force or violence to escape from any jail in which he is confined, or from any custody under or by virtue of any process issued under the laws of the State of Mississippi by any court or judge, or from the custody of a sheriff or other peace officer pursuant to lawful arrest, shall, upon conviction, if the confinement or custody is by virtue of an arrest on a charge of felony, or conviction of a felony, be punished by imprisonment in the penitentiary not exceeding five (5) years to commence at the expiration of his former sentence, or, if the confinement or custody is by virtue of an arrest of or charge for or conviction of a misdemean- or, be punished by imprisonment in the county jail not exceeding one (1) year to commence at the expiration of the sentence which the court has imposed or which may be imposed for the crime for which he is charged.

(emphasis added).

¶ 27. When Sessom fled from the courthouse, he was not fleeing from jail, nor was he in “custody under or by virtue of any process issued under the laws of the State of Mississippi by any court or [by][J]udge [Beady]”. Id. At most, he was in custody by virtue of his failing to appear for trial and by virtue of an oral command from Judge Ready to the bailiff to take Sessom into custody. Admittedly, an oral pronouncement in court that Sessom’s bond was being revoked had occurred prior to the subsequent oral command to take Sessom into custody. However, the statute requires that the custody or confinement emanate from “process issued ... by [a] court or judge. If Judge Ready’s oral pronouncement that Sessom’s bail was revoked and oral command to the bailiff that Sessom be taken into custody, constitute. “process issued under the laws of the State of Mississippi,” then the majority correctly affirms Sessom’s conviction for felony escape.

¶ 28. As already mentioned, before Ses-som escaped, Judge Ready had informed him that his bond had been revoked. I do not believe, however, that informing Ses-som that his bond had been revoked was “process issued under the laws of the State of Mississippi by ... [Jjudge [Ready], (emphasis added). Id. In my opinion, the phrase, “process issued,” as used in the statute means something more than a verbal statement to a defendant, and implies a written instrument of some sort.

¶ 29. While I agree with the majority that Sessom was in the “custody of a sheriff or other peace officer pursuant to [a] lawful arrest” when he escaped, I disagree that he was then in custody on the original felony charges. He was in custody because he had jumped bond, not because he was charged with having committed three felonies. That Sessom was arrested for “bond jumping” is supported by Judge Ready’s trial testimony that he was revoking Sessom’s appearance bond and was ordering him placed under arrest in efforts to secure Sessom’s presence at the next trial date.

¶ 30. The statute is clear. One may be convicted of felony escape if he is confined or is in custody: “by virtue of an arrest on a charge of felony or conviction of a felony” and he (1) “escapes or attempts by force or violence to escape from any jail in which he is confined,” or (2) escapes or attempts by force or violence, to escape “from any custody under or by virtue of any process issued under the latos of the State of Mississippi by any court or judge, or from the custody of a sheriff or other peace officer pursuant to lawful arrest.” Miss.Code Ann. § 97-9-49(1) (Supp.2005).

¶ 31. The majority fails to give effect to the portion of the statute which makes it a felony to escape only if the confinement or custody is by virtue of an arrest on a charge of felony, or conviction of a felony. While it is true that Sessom could not later be arrested for “bond jumping” in the absence of the existence of the felony charges for which he had made bail, the fact is that, when he made bail, he was legally free of custody or confinement on those felony charges. So, when Judge Ready ordered the bailiff to take Sessom into custody, for what was Sessom being arrested? Was it for the original felony crimes or was it for failing to timely appear for trial on those charges? Clearly, it was the latter. Therefore, when Sessom escaped, he was escaping from custody which had been imposed by virtue of an arrest for “bond jumping,” that is, failing to timely appear in court. “Bond jumping” is not a felony offense. Miss.Code Ann. § 83-39-29(5) (Supp.2005).

¶ 32. The majority improperly dissects 97-9-49(1) to arrive at three disjunctive circumstances which constitute a violation of the statute. Since section 97-9-49(1) addresses both felony and misdemeanor escape, any construction of the statute which does not consider separately the prerequisites for felony or misdemeanor escape is flawed. With humility and respect, I must say that the analysis of the majority is flawed because it pretermits the statutory predicate for felony escape: that the defendant is confined or is in custody “by virtue of an arrest on a charge of felony or conviction of a felony.” If the predicate does not exist, there is no basis for considering the three disjunctive factual scenarios.

¶ 33. The majority also spends time discussing the felony charges that were pending against Sessom when he was arrested for “bond jumping.” The fact that these charges were pending is not the primary reason Sessom was arrested. Further, the majority discusses Sandoval v. State, 631 So.2d 159 (Miss.1994), finding that, based on Sandoval, the circuit court could not have tried Sessom in his absence. I agree, but, that Sessom could not be tried in absentia on the existing felony charges, did not make the arrest, which led to the new confinement or custody, an arrest on a charge of felony. To illustrate my point, suppose Sessom had timely appeared in court for his trial on the felony charges and, upon his arrival, had committed simple assault against a person at the courthouse. The judge had then ordered him arrested because commission of the simple assault violated the terms and condition of his bond that he refrain from violating the criminal laws of the State of Mississippi. While being taken into custody on the simple assault charge, Sessom escaped. Would he have been in custody by virtue of felony or by virtue of a misdemeanor?

¶ 34. An stated, when Sessom was allowed to make bail, he was lawfully released from custody on the underlying felonies for which he was later to stand trial. Therefore, he was no longer confined or in custody by virtue of an arrest on a charge of felony. Although Sessom’s freedom was conditional, and Judge Ready had revoked that conditional freedom, the revocation did not result in Sessom’s being arrested on a charge of felony as required by statute in order to sustain a conviction for felony escape. Revoking Sessom’s freedom and returning him to confinement or custody, such that he could be tried for felony escape if he later tried to escape, required the issuance of lawful process to vacate the previously lawfully-issued order for bail. Before that could occur, Sessom escaped from custody, imposed by virtue of an arrest for “bond jumping,” a misdemeanor.

¶ 35. I would affirm Sessom’s conviction for the lesser offense of misdemeanor escape and remand for resentencing.

KING, C. J„ JOIN THIS OPINION.

      . Although Sessom mentions the denial of his motion for a new trial, his first issue attacks the sufficiency, rather than the weight, of the evidence.

      . Sessom had already been arrested for the conspiracy charge and was out on bond on that offense. While Judge Ready testified that he stated to Sessom that he had revoked Ses-som’s bond, Judge Ready had not entered an order to that effect at the time of Sessom's escape.

      . Thomas was Sessom's girlfriend. She attempted to bring marijuana into the DeSoto County Jail for Sessom, but her plan was thwarted by jail personnel. Thomas was arrested and convicted in connection with that incident.

      . At the time of his escape, Sessom had been out on bond on the conspiracy charge and two other charges.

      . Mississippi Code Annotated section 83-39-29(5) (Supp.2005) provides:
      Any person charged with a criminal violation who has obtained his release from custody by having a professional bail agent, insurer, agent of a bail agent or insurer, or any person other than himself furnish his bail bond and who fails to appear in court, at the time and place ordered by the court, is guilty of "bond jumping" and upon conviction, shall be subject to a fine of not more than One Thousand Dollars ($1,000.00), imprisonment in the count jail for not more than one (1) year, or both, and payment of restitution for reasonable expenses incurred returning the defendant to court.


author: CHANDLER, J.,

text:
    C.D. PICKLE, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00996-COA.
    Court of Appeals of Mississippi.
    May 23, 2006.
    Rehearing Denied Sept. 26, 2006.
    See also 791 So2d 204.

      C.D. Pickle, Jr., Appellant, pro se.
    Office of the Attorney General by José Benjamin Simo, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On June 16, 2004, C.D. Piclde, Jr. filed a “Motion for OuNof-Time Post Conviction Relief’ in the Circuit Court of Le-flore County. The motion for post-conviction relief (PCR) pertained to Pickle’s March 1978 conviction of capital murder and sentence of life imprisonment. The trial court summarily dismissed the PCR upon a finding that it was time-barred, barred as a successive writ, and barred by the doctrine of collateral estoppel.

¶ 2. Pickle appeals. He argues that his PCR was exempt from the procedural bars based upon the newly discovered evidence exception or upon the plain error doctrine. We find these arguments to be without merit and, therefore, affirm the summary dismissal of Pickle’s PCR.

FACTS AND PROCEDURAL HISTORY

¶ 3. Pickle’s attempts to challenge his March 1978 conviction and sentence comprise a rich procedural history that is detailed in Pickle v. State, 791 So.2d 204, 205-06 (¶¶ 2-9) (Miss.2001). In brief, sometime in the 1970s, Pickle was convicted of capital murder with the underlying felony of rape. On May 4, 1977, the Mississippi Supreme Court reversed Pickle’s conviction and remanded the case for a new trial. See Pickle v. State, 345 So.2d 623 (Miss.1977). Pickle’s second trial was held in March 1978 and again resulted in his conviction of capital murder for which he was sentenced to life imprisonment. Pickle never perfected an appeal from that conviction.

¶ 4. Between March or April 1978 and December 1981, Pickle filed a motion in the circuit court requesting permission to file an out-of-time appeal from his conviction, which was denied. On review, the supreme court ordered an evidentiary hearing on the issue of whether Pickle had knowingly and intelligently waived his right to appeal. After the hearing, the circuit court concluded that Pickle had knowingly and intelligently waived his right to appeal and denied Pickle’s request for an out-of-time appeal. The supreme court affirmed this decision on March 24, 1982.

¶ 5. On September 23, 1997, Pickle filed a PCR again seeking an out-of-time appeal from his March 1978 conviction and sentence. The circuit court denied relief, finding that it already had been determined that Pickle had knowingly and intelligently waived his right to appeal. Pickle appealed the circuit court’s decision. On July 19, 2001, the supreme court affirmed, finding that Pickle was collaterally es-topped from seeking an out-of-time appeal because his entitlement to an out-of-time appeal had been adjudicated sixteen years previously.

¶ 6. On June 16, 2004, Pickle filed the instant PCR in the Circuit Court of Le-flore County. Pickle argued that, in his March 1978 trial, the jury was erroneously instructed and his counsel was ineffective for his failure to ensure that the jury was properly instructed. He further asserted that he was actually innocent. Pickle attached affidavits and excerpts of the trial record as supportive documentation.

¶ 7. On April 11, 2005, the circuit court dismissed the PCR as time-barred and as a successive writ. The court further found that Pickle was collaterally estopped from filing the PCR since the issue of his entitlement to an out-of-time appeal had already been litigated. Pickle has appealed and contends that the court erroneously dismissed his PCR as procedurally barred.

STANDARD OF REVIEW

¶ 8. The trial court may summarily dismiss a PCR “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Rev. 2000). This Court will affirm the lower court’s summary dismissal of a PCR if, after reviewing the PCR de novo, we conclude that the petitioner has failed to “demonstrate ‘a claim procedurally alive ‘substantially] showing denial of a state or federal right....’’” Young v. State, 731 So.2d 1120, 1122(¶ 9) (Miss.1999) (quoting Myers v. State, 583 So.2d 174, 176 (Miss.1991)).

LAW AND ANALYSIS

I. WHETHER THE LOWER COURT ERRED BY DISMISSING THE PCR AS PROCEDURALLY BARRED.

¶ 9. Without doubt, Pickle’s PCR was time-barred and barred as a successive writ. Mississippi Code Annotated section 99-39-5(2) (Supp.2005) provides that, in a case where no appeal was taken, a motion for post-conviction relief must be made within three years after the time for taking an appeal from the judgment of conviction or sentence has expired. Pickle’s June 16, 2004, PCR was filed over twenty-five years after his March 1978 conviction. Therefore, it was time-barred. The PCR was also barred as a successive writ. Mississippi Code Annotated section 99-39-23(6) (Supp.2005) states that “any order dismissing the prisoner’s motion or otherwise denying relief under this article is a final judgment and ... shall be a bar to a second or successive motion under this article.” The instant PCR was Pickle’s second pertaining to his March 1978 conviction; his first PCR was dismissed. Therefore, the instant PCR was barred as a successive writ.

¶ 10. Pickle argues that his PCR raised newly discovered evidence and should have been excepted from the procedural bars. Section 99-39-5(2) provides an exception to the time bar for

those cases in which the prisoner can demonstrate ... that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.

An identical exception is applicable to the successive writ bar. Miss.Code Ann. § 99-39-23(6) (Supp.2005).

¶ 11. In his PCR, Pickle assigns error in the grant or denial of several jury instructions at his trial. Pickle asserts that the erroneous jury instructions constituted newly discovered evidence because Pickle first learned of the errors in 2003, when his sister retrieved the jury instructions from the clerk’s office and forwarded them to Pickle. Pickle averred that he should be excused from having failed to discover the errors earlier because agents of the State blocked his previous efforts to access the trial records.

¶ 12. The term “newly discovered evidence” refers to evidence, that is, an exhibit, testimony, or some other information that could have been offered as evidence in the defendant’s trial but was not offered because it was not reasonably discoverable at the time of the trial. The concept of newly discovered evidence does not embrace a prisoner’s untimely realization that legal errors occurred at his trial. Accordingly, we have held that a prisoner’s failure to understand the law until conducting research into his case does not constitute newly discovered evidence. Frost v. State, 781 So.2d 155, 158(¶7) (Miss.Ct.App.2000). The newly discovered evidence exception to the procedural bars is wholly inapplicable to Pickle’s claims.

¶ 13. We turn to Pickle’s assertion that his claims are reviewable as plain error. We may apply the plain error rule to an error not properly preserved for review if the error affects a prisoner’s substantive or fundamental rights. Williams v. State, 794 So.2d 181, 187(¶ 23) (Miss.2001). If plain error exists, we may address the error on post-conviction relief notwithstanding the procedural bars. Ivy v. State, 731 So.2d 601, 603(¶ 13) (Miss.1999). “The plain error doctrine requires that there be an error and that the error must have resulted in a manifest miscarriage of justice.” Williams, 794 So.2d at 187(¶23). “The plain error doctrine has been construed to include anything that ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

¶ 14. Pickle contends that his assertions of erroneous jury instructions and ineffective assistance of counsel demonstrate that plain error occurred at his trial. We have reviewed Pickle’s PCR and conclude that it fails to substantially show any errors seriously affecting the fairness, integrity, or public reputation of judicial proceedings that would implicate plain error review. For illustrative purposes, we briefly discuss Pickle’s main arguments. Concerning the jury instructions, Pickle contends that the instructions allowed his unconstitutional conviction of capital murder with the underlying felony of attempted rape when he had been indicted for capital murder with the underlying felony of rape. Pickle argues that by charging him with the completed crime of rape, his indictment did not properly charge him with attempted rape. This argument is clearly without merit; Mississippi Code Annotated section 99-19-5 (Rev. 2000) provides that a jury may find the defendant guilty of the offense charged in the indictment or of any attempt to commit the same offense. Further, contrary to Pickle’s arguments, he was not found guilty of the predicate felony of rape upon improper jury instructions because the jury was correctly instructed on the elements of rape as the crime was statutorily defined at the time of Pickle’s offense. See Miss.Code Ann. § 97-3-65 (1972). Pickle’s claim of ineffective assistance of counsel is founded upon counsel’s role concerning the jury instructions and evinces no error. We observe that “this Court has never held that merely raising a claim of ineffective assistance of counsel is sufficient to surmount the procedural bar[s].” Maston v. State, 750 So.2d 1234, 1237(¶14) (Miss.1999). We affirm the dismissal of Pickle’s PCR as proeedurally barred.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LE-FLORE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: LEE, P.J.,

text:
    Cozell LYONS, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02268-COA.
    Court of Appeals of Mississippi.
    June 27, 2006.
    Rehearing Denied Nov. 14, 2006.

      Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. The Merchant and Farmers Bank in Philadelphia opened at 8:30 the morning of March 12, 2004, and lead teller Felicia Cook assisted Leigh Ann Fortenberry, her first customer of the day, without incident. While Cook was assisting Fortenberry, Cozell Lyons entered the bank sporting a pair of purple sunglasses. After Forten-berry concluded her business and left the bank, Lyons displayed a blue checkbook cover containing a note which instructed Cook to remain quiet because Lyons had a gun in his pocket.

¶ 2. Lyons then handed Cook a clear plastic bag, into which Cook immediately began placing money, including bills that had been earmarked by the bank for use in the event of a robbery. These bills, referred to as “bait money,” have serial numbers which have been recorded by the bank for purposes of identifying the funds after a robbery has occurred. Lyons did not actually show Cook the weapon, keeping his right hand in his pocket for the duration of the robbery.

¶ 3. Lyons exited the bank and walked past Fortenberry as he counted the money. Meanwhile, Cook locked the door and called the police.

¶ 4. The police officers distributed copies of the picture of Lyons taken during the robbery by the bank’s security camera, and the police soon learned Lyons’s identity. Officer Jimmy Reid, an investigator with the Philadelphia Police Department, and Danny Knight, of the Mississippi Bureau of Investigations, went to Lyons’s mother’s house in search of him. Although Claudia Lyons was not at home the first time the police went to her house, when she appeared later that evening, she gave the officers permission to search the house.

¶ 5. Officer Reid testified that the door to Lyons’s room was open and he could see a suitcase and a pair of purple sunglasses on the bed. The officers obtained a warrant and subsequently arrested Lyons. When Lyons was arrested, the police discovered a key to a room registered to Edna Woods at the local Day’s Inn. After securing a warrant, the police searched the motel room, finding the bait money from the robbery.

¶ 6. Lyons was convicted by a jury in the Circuit Court of Neshoba County of armed robbery and sentenced to serve a term of twenty-eight years in the custody of the Mississippi Department of Corrections. It is from this conviction that Lyons appeals, arguing the following: (1) the trial court erred in denying Lyons’s motion to suppress evidence obtained in the search of Claudia Lyons’s house; (2) the trial court erred in denying Lyons’s motion to suppress evidence obtained from the Day’s Inn; and (3) the trial court erred in denying Lyons’s motion for a directed verdict, request for peremptory instruction and motion for a new trial. Finding no error, we affirm.

I. DID THE TRIAL COURT ERR IN DENYING LYONS’S MOTION TO SUPPRESS EVIDENCE SEIZED FROM CLAUDIA LYON’S HOUSE?

¶ 7. Lyons argues that the court erred in admitting evidence seized from his bedroom at Claudia Lyons’s house. Lyons argues that because the officers securing the warrant to search Lyons’s room did not present the municipal judge with a written summary of the underlying facts and circumstances articulating probable cause for the warrant, the warrant was invalid. The thrust of Lyons’s argument is that the officers lacked probable cause to search Lyons’s room, thus the court erred in failing to suppress the purple sunglasses.

¶ 8. Neither the warrant, nor the affidavit containing the underlying facts and circumstances are contained in the record before this Court. The record does contain testimony from Officers Jimmy Reid and Johnny Knight regarding information presented to Judge Donnie Adkins, who issued the warrant. Additionally, the record contains the testimony of Judge Adkins regarding the procurement of the warrant. “What credit to give to a witness’s statement, including what should be considered incredible, is for the fact-finder at trial.” Luckett v. State, 797 So.2d 339, 344(1113) (Miss.Ct.App.2001). We find no compelling reason to reject the testimony of the officers and Judge Adkins. Furthermore, the Mississippi Supreme Court has held that when the written statement made in support of a search warrant is not entered into evidence as an exhibit or made part of the official record, review of the document’s sufficiency to prove probable cause has been waived. Branch v. State, 347 So.2d 957, 958-59 (Miss.1977); see also McKinney v. State, 724 So.2d 928, 932 (¶¶ 13-15) (Miss.Ct.App.1998). We find no error in denying the motion to suppress.

II. DID THE TRIAL COURT ERR IN DENYING LYONS’S MOTION TO SUPPRESS EVIDENCE SEIZED FROM THE DAY’S INN?

¶ 9. Lyons argues that the police conducted a “warrantless trespass” into the hotel room, and that the court erred in failing to suppress the money discovered in the room. Lyons cites to Davidson v. State, 240 So.2d 463 (Miss.1970), in support of his argument.

¶ 10. In Davidson, the defendant was convicted of receiving a stolen tractor. A game warden spotted the tractor on land owned by Davidson, and the warden entered the land to retrieve the tractor’s serial number. The warden then submitted the information to the Quitman County Sheriffs Department, who secured a warrant to search the defendant’s property. The supreme court reversed the conviction, finding that the warden illegally searched Davidson’s property. Id. at 464. Because the sheriffs warrant was based upon the warden’s illegal search, the fruit of the search was inadmissible. Id.

¶ 11. Lyons’s case is distinguishable. Unlike Davidson, Lyons has failed to establish that he had a reasonable expectation of privacy in Edna Woods’s motel room at the Day’s Inn. “The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” Rakas v. Illinois, 439 U.S. 128, 132 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); see also White v. State, 571 So.2d 956, 958-59 (Miss.1990). At the hearing on the motion to suppress, Lyon’s attorney did not produce any evidence that Lyons had any expectation of privacy in the room, nor did he advance such an argument before the trial court. “A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” Turner v. State, 573 So.2d 657, 665 (Miss.1990). As Lyons did not produce evidence that he had a reasonable expectation of privacy in Woods’s hotel room, he lacked standing to contest the search and the admission of the evidence obtained as a result of the search.

¶ 12. Lyons also argues that the warrant was improper because the affidavit of the officer seeking the warrant contained hearsay. “A judge may make a determination of probable cause on any evidence offered to it, regardless of whether that evidence is admissible in court.” Donerson v. State, 812 So.2d 1081, 1085(¶ 8) (Miss.Ct.App.2001). This issue is without merit.

III. DID THE TRIAL COURT ERR IN DENYING LYONS’S MOTION FOR A DIRECTED VERDICT, REQUEST FOR A PEREMPTORY INSTRUCTION AND MOTION FOR A NEW TRIAL?

¶ 13. “The standard of review for a denial of a directed verdict, peremptory instruction and a JNOV are identical.” Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003). These motions challenge the legal sufficiency of the evidence, and as such we review the ruling on the last occasion the challenge was made, in this instance the motion for a JNOV. Id. (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). A motion for a new trial challenges the weight of the evidence, and a reversal is only appropriate if the trial court abused its discretion in denying the motion for a new trial. Id. at (¶ 31). We must review the evidence in the light most favorable to the jury verdict, giving the State “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” McFee v. State, 511 So.2d 130, 133 (Miss.1987).

¶ 14. Lyons was indicted for armed robbery in violation of Mississippi Code Annotated Section 97-3-79 (Rev.2000), which provides, in pertinent part, as follows:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will ... by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery. ...

Lyons argues that the State failed to prove that he exhibited a deadly weapon, as he kept his hand in his pocket during the course of the robbery, and Cook testified that she never actually saw a weapon.

¶ 15. Our supreme court recently addressed this issue in Dambrell v. State, 903 So.2d 681, 683(116) (Miss.2005), overruling Gibby v. State, 744 So.2d 244 (Miss.1999). In Gibby, the supreme court held that the victim’s assumption that the defendant possessed a gun was insufficient to prove the exhibition of a deadly weapon under Section 97-3-79. Dambrell held as follows:

After careful consideration, this Court overrules Gibby v. State, 744 So.2d 244 (Miss.1999). We find that when a defendant makes an overt act and a reasonable person would believe that a deadly weapon is present, there is no requirement that a victim must actually see the deadly weapon in order to convict pursuant to Miss.Code Ann. Section 97-3-79. Therefore, a victim is not required to have “definite knowledge” of a deadly weapon in the sense that the weapon must actually be seen by the victim’s own eyes.

Id.

¶ 16. Cook testified that she believed Lyons had a weapon, that his note indicated he had a gun, and that she was in fear for her life. The supreme court’s ruling in Dambrell is clear; thus, we find this issue to be without merit.

¶ 17. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY-EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.

KING, C.J., MYERS, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: BARNES, J.,

text:
    Ventura Donnell MOORE, Sr., Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00095-COA.
    Court of Appeals of Mississippi.
    Aug. 15, 2006.

      Jonathan M. Farris, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

BARNES, J.,

for the Court.

¶ 1. The appellant’s motion for rehearing is granted. The original opinion issued in this case is withdrawn, and the following opinion is substituted therefore.

¶ 2. Ventura Donnell Moore, Sr. appeals his conviction in the Circuit Court of Forrest County of the crime of robbery. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 3. On the morning of July 26, 2002, Louis Taylor, aged sixty-six years old, was walking from the post office to his Hatties-burg, Mississippi, home when he stopped by a store which was located two blocks from his house. As Taylor was leaving the store, he was approached by Moore and Victoria Conley. Moore asked Taylor if wanted to purchase sex from Conley, but Taylor declined the offer, gave Moore some change, and went on his way. As Taylor began to walk home, Moore and Conley followed him. When Taylor arrived home, Conley asked him if he had any cold water that she could drink. Taylor invited Moore and Conley inside, and gave Conley a cold soft drink. Moore asked Taylor again if he wanted to have sex with Conley, and again Taylor declined. After Taylor gave Conley five dollars with which to buy something to eat, Conley and Moore headed toward the door. However, on his way out, Moore asked Taylor for some water. When Taylor turned around, Moore grabbed Taylor around the neck and pulled a wallet from Taylor’s pocket. Moore took forty-five dollars from Taylor’s wallet, threw the wallet on the couch, and ran out of the house. Moore was soon apprehended, and on February 10, 2003, Moore was charged with the crime of robbery.

¶ 4. Moore was convicted by a jury of his peers in the Circuit Court of Forrest County and was sentenced to serve a term of fifteen years in the custody of the Mississippi Department of Corrections, without the benefit of parole. On November 12, 2003, Moore filed a motion for judgment notwithstanding the verdict, or, in the alternative, a new trial; the motion was denied by the trial court. On January 8, 2004, Moore filed his notice of appeal. Rule 4(a) of the Mississippi Rules of Appellate Procedure states that a notice of appeal must be filed within thirty days of the judgment or order appealed from; our previous opinion in this case dismissed Moore’s appeal as time-barred. However, after considering the unique circumstances of this case, on rehearing, we opt to exercise our right — granted by Rule 2(c) of the Mississippi Rules of Appellate Procedure — to suspend Rule 4 so that we may address the merits of Moore’s out-of-time appeal.

ISSUE AND ANALYSIS

WHETHER THE VERDICT WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE

¶ 5. In considering whether the evidence is legally sufficient to sustain a conviction in the face of a motion for judgment notwithstanding the verdict, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.’ ” Bush v. State, 895 So.2d 836, 843(1116) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The key question in this analysis is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. If the evidence against the defendant is such that “reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” we will deem the evidence sufficient. Id.

¶ 6. In the present case, Moore contends that the State failed to meet its burden of proof in proving the essential elements of the crime of robbery. Section 97-3-73 of the Mississippi Code Annotated (Rev.2000) defines the crime of robbery as follows:

Every person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.

It is apparent from this definition that, in order to convict a criminal defendant, the State must prove beyond a reasonable doubt (1) felonious intent on the part of the defendant; (2) that the defendant used force or putting in fear as a means of effectuating the theft; and (3) that the defendant took and carried away the property of another from the victim’s person or in the victim’s presence. See Randolph v. State, 852 So.2d 547, 555(¶ 18) (Miss.2002). We have little difficulty concluding that the State proved these elements beyond a reasonable doubt.

¶ 7. As an initial matter, the jurors could reasonably infer Moore’s felonious intent by looking to the circumstances surrounding the crime. See Broomfield v. State, 878 So.2d 207, 213(¶16) (Miss.Ct.App.2004). As to the second and third elements of the crime, Taylor’s own testimony under direct examination established that Moore used force to take and carry away Taylor’s property:

Q: Okay, hold on. Did you just testify that you turned around to get [Moore] some water?
A: Yeah.
Q: Did he ask for water?
A: Yeah.
Q: What happened? Would you stand up, please. [The jury] can’t hear you. Just sit right there. I’m going to be you and you be him, okay? Show me what he did.
A: (Witness indicates.) And he got in my pocket.
Q: Got in your pocket? What was in your pocket?
A: (Witness indicates).
[THE STATE]: Your Honor, let the record reflect that the witness has placed his left arm around my neck and reached in my hip pocket.
THE COURT: Let the record so reflect.

Furthermore, on cross-examination, Taylor testified as follows:

Q: Now did you have — after this, did you have any bruises or scrapes or any kind of marks?
A: No. No, I didn’t have no scrapes at all.
Q: Did you tell anybody before or is it true that the man took you all the way down to the ground or knocked you down?
A: I was on the floor. We were in the house and he knocked me on the floor.
Q: You did go down to the floor?
A: Yeah.

¶ 8. Conley’s testimony corroborated Taylor’s version of events. She testified that before she left Taylor’s house, she saw Moore push Taylor to the ground. Furthermore, she testified that she saw Moore run away from the house with money in his hand. While Moore asks this Court to disregard Conley’s testimony because he alleges that she is a prostitute, crack addict, and paranoid schizophrenic, we will not do so. It is the province of the jury, not of this Court, to determine the credibility of trial witnesses. See Robert v. State, 821 So.2d 812, 817(¶20) (Miss.2002).

¶ 9. Viewing the evidence in the light most favorable to the State, it is clear that any rational trier of fact could have found, beyond a reasonable doubt, that Moore used force to take and carry away Taylor’s personal property, and did so with felonious intent. This issue is without merit.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY OF CONVICTION OF SIMPLE ROBBERY, AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS AND ISHEE, JJ., CONCUR. SOUTHWICK AND ROBERTS, JJ., NOT PARTICIPATING.


author: MYERS, P.J.,

text:
    Helen E. SWARTZFAGER, Appellant, v. Grady Paul DERRICK, Jr., Appellee.
    No. 2005-CA-00648-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.
    Robert R. Marshall, attorney for appellant.
    Michael Adelman, Hattiesburg, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. This case involves the modification of a child custody order from the Chancery Court of Lamar County, Honorable Johnny Lee Williams presiding. In this case, Appellee Grady Paul Derrick, Jr. sought physical custody of his minor child through a modification of the original child custody agreement. The original agreement was incorporated into the divorce decree and gave physical custody to Appellant Helen E. Swartzfager, the child’s mother. An order temporarily changing custody was entered, but nearly three years passed before a hearing was held on the motion for modification. At the final hearing, the chancellor held that Helen had the burden of proving a material change in circumstances since the date of the temporary order. She failed to do so, and Grady was granted permanent physical custody. Aggrieved by the courts ruling, Helen, asserts error on the following issue:

WHETHER THE CHANCELLOR WAS MANIFESTLY WRONG, ABUSED HIS DISCRETION, AND APPLIED AN ERRONEOUS LEGAL STANDARD FOR MODIFICATION OF CHILD CUSTODY WHEN RENDERING HIS FINDINGS OF FACT AND CONCLUSIONS OF LAW AND FINAL JUDGMENT AS WELL AS IN OVERRULING HELEN’S MOTION FOR POST JUDGMENT RELIEF?

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

STATEMENT OF THE FACTS

¶ 3. Helen E. Swartzfager and Grady Paul Derrick, Jr. divorced on June 21, 2000. Incorporated into the divorce decree was a child custody, child support, and property settlement agreement. The custody agreement provided that both Helen and Grady would each spend equal amounts of time with their minor child, Grady (Zeke) Paul Derrick, III. Although Helen, in title, was granted primary physical custody, the agreement implemented an alternating physical custody schedule which provided equal time between the parents, and both parents retained joint legal custody. At the time of the divorce decree both Helen and Grady lived in Hat-tiesburg, Mississippi and the alternating custody schedule appeared easily workable.

¶ 4. On November 27, 2001 Grady filed a contempt citation against Helen and a motion to modify custody alleging that Helen had violated certain provisions of the original custody agreement established for the protection of the child. Just prior to Grady’s filings, Helen began experiencing anxiety and depression brought on by work-related stress. Allegations of prescription drug abuse arose. Ultimately Helen was involuntarily committed in Jones County and placed in the Pine View detox unit for psychiatric evaluation and drug screening. Although suffering from anxiety and depression, Helen was found to have had no addiction to prescription medications or other narcotics, and the allegations proved to be totally unfounded. While Helen was in custody, awaiting the court ordered medical evaluation, Grady filed an emergency motion seeking custody of Zeke. In the apparent best interests of the child, the court granted the relief requested.

¶ 5. A hearing on Grady’s November 27, 2001 motion to modify custody had been set for December 17, 2001, but was canceled at the request of Helen’s counsel. Subsequently, in February 2002, the parties entered into an agreed temporary order. The order granted temporary physical custody to Grady and allowed Helen weekend visitation with Zeke in the home of Zeke’s maternal grandfather. In August 2002, Helen filed her own contempt motion against Grady in which she alleged that he was not complying with the agreed visitation; however, she did not seek physical custody of the child at this time. Helen did not file her counter-petition for modification seeking restoration of the original custody agreement until June 29, 2004, nearly two and one-half years after the entry of the agreed order modifying custody in favor of Grady. In the interim, Helen sold her law practice in Laurel, relocated to Pascagoula, took a job with a local firm, remarried, and had another child. The record is unclear as to why she waited more than two years to seek the reinstatement of the original custody agreement, but she attributes the delay to poor legal counsel and a lack of funds needed to hire adequate representation. We note that Helen is an attorney.

¶ 6. A hearing was held on Helen’s citation for contempt and modification of child custody on December 7, 2004. The chancellor found that since the temporary order had been in effect for nearly three years, the temporary order had assumed the nature of a permanent order. Therefore, he placed on Helen the burden to prove a material change in Grady’s home, adverse to the child, and that the best interests of the child warranted a modification of custody. After hearing testimony, the chancellor held that Helen had failed to meet her burden. The chancellor then went through each of the enumerated Al-bright factors and found that the best interests of the child were served by allowing Grady to retain physical custody of Zeke. The temporary modification granting custody to Grady was then ordered permanent; however, Helen was granted custody for all but one week of the summer months, and visitation on alternating weekends during the school year, and alternating Christmas, Thanksgiving, and spring break vacations.

LEGAL ANALYSIS

STANDARD OF REVIEW

¶ 7. The standard of review in domestic relations cases is established and clear. Child custody matters fall within the sound discretion of the chancellor. Sturgis v. Sturgis, 792 So.2d 1020, 1023, (¶ 12) (Miss.Ct.App.2001). Therefore, when this Court reviews an award of child custody, the decision of the chancellor will be affirmed unless it is shown to be “manifestly wrong, clearly erroneous,” or that the chancellor applied an erroneous legal standard. Roberson v. Roberson, 814 So.2d 183, 184(¶ 3) (Miss.Ct.App.2002). The chancellor’s decision must be supported by substantial evidence established by the record of the proceedings. Id.

DISCUSSION

¶ 8. Helen argues that the chancellor applied an erroneous legal standard regarding modification of child custody, by placing upon her, the custodial parent, the burden of proving that a material change had occurred in the home of the father, adverse to the best interests of the child. She asserts that Grady only had temporary custody of the child, and that before the court could award him permanent custody, he had the burden of proving that a material change adverse to the best interests of the child had occurred in her home. Helen argues that Grady neither pled nor put on any proof that anything adverse to the child had occurred in her home, and that it was error for the chancellor to place the burden of proof upon her, to award custody to Grady upon this basis, and to deny her petition for post-judgment relief. Helen prays that this Court reverse the judgment of the Lamar County Chancery Court and render a judgment restoring to her physical custody of Zeke. Grady argues that the court was correct in holding that the temporary order had acquired incidents of permanency, making Grady the de facto custodial parent, and therefore, Helen had the burden of proof. He asserts that the chancellor correctly determined that Helen had failed to meet her burden and that the best interests of the child were served by awarding him permanent physical custody.

¶ 9. As to modification of child custody, the law is well-settled. In order to transfer custody of a child, the noncustodial parent has the burden of proving that since the decree or order sought to be modified, a material change has occurred in the custodial home which adversely affects the child. Polk v. Polk, 589 So.2d 123, 129 (Miss.1991). When considering this alleged change, the court must evaluate the evidence under the totality of the circumstances. Id. A chancellor’s decision modifying child custody will not be disturbed so long as it is supported by substantial evidence found in the record and he applied the following legal standard: “[T]he non-custodial parent must pass a three-part test: ‘a substantial change in circumstances of the custodial parent since the original custody decree, the substantial change’s adverse impact on the welfare of the child, and the necessity of the custody modification for the best interest of the child.’ ” Pierce v. Chandler, 855 So.2d 455, 457(¶ 9) (Miss.Ct.App.2003) (quoting Sanford v. Arinder, 800 So.2d 1267, 1271(¶ 15) (Miss.Ct.App.2001); Brawley v. Brawley, 734 So.2d 237, 241(¶12) (Miss.Ct.App.1999)). The best interest of the child remains the court’s polestar consideration. Albright v. Albright, 437 So.2d 1003, 1003 (Miss.1983).

¶ 10. Helen cites Forsythe v. Akers, 768 So.2d 943, 948(¶ 15) (Miss.Ct.App.2000), for her assertion that the chancellor erred in placing the burden of proof upon her and in finding that the temporary award had taken on incidents of permanency, making Grady the de facto custodial parent. In Forsythe, this Court held that an agreement for temporary modification cannot be used as evidence of a material change in circumstances. Id. Helen also contends that Grady’s allegation that an adverse effect would result, should the court fail to grant the modification, is an insufficient basis to modify child custody. McMurry v. Sadler, 846 So.2d 240, 244(¶ 14) (Miss.Ct.App.2002). We agree that a decision based upon what would or might occur is contrary to the law; however, we do not find that to have been the ease here. Rather, we find our previous holding in Thompson v. Thompson, 799 So.2d 919 (Miss.Ct.App.2001), to be controlling on this issue. In Thompson, this Court upheld a chancellor’s ruling that a temporary order had acquired incidents of permanency where, as here, the order had been allowed to operate unchallenged for a period of years. Id. at 926-27(¶ 30). The chancellor held that, under the temporary order, the non-custodial parent had in fact been the de facto custodial parent for four years and, therefore, the custodial parent challenging the temporary order had the burden of proof for a modification of that order. Id. at 926(¶ 26). As in Thompson, the chancellor in the case now before this Court found that the temporary order had acquired incidents of permanency and that Grady had been the de facto custodial parent for a period of nearly three years. Accordingly, the chancellor placed the burden of proof upon Helen, the petitioner, for modification. We find the chancellor’s ruling as to which party had the burden of proof to be consistent with Thompson, and assign no error thereto.

¶ 11. After hearing testimony of the parties, the chancellor found Helen to have failed to meet her burden of proof. An Albright analysis was then applied by the trial court and resulted in a determination that the child’s best interests would be served by remaining in his father’s home. The chancellor articulated in his judgment decree that to remove the child from his home of the past three years, where he had apparently thrived, would be “to cause him unnecessary instability.” Ever vigilant of the polestar consideration in child custody matters, we concur with the chancellor that the child’s best interests are served by remaining with his father. Al-bright, 437 So.2d at 1003.

CONCLUSION

¶ 12. As in Thompson, we must make clear that this opinion is not to be interpreted as holding that temporary custody orders normally should be given permanent status. However, where a temporary order remains uncontested for a period of years, we find such orders to have acquired incidents of permanency which necessitate that such an order be treated as permanent for the purpose of assigning the burden of proof, and will not overrule a chancellor who makes a decision upon this basis. Accordingly, we hold that the chancellor did not abuse his discretion, commit manifest error, or apply an erroneous legal standard in awarding custody of Zeke to Grady or in denying Helen’s motion for post-judgment relief. Therefore, the judgment of the Lamar County Chancery Court is affirmed.

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

KING, C.J., LEE, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.