author: CHANDLER, J„

text:
    Jody EZELL a/k/a Jody M. Ezell, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00581-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.
    Rehearing Denied May 1, 2007.

      David Fitzgerald Linzey, attorney for appellant.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J„

for the Court.

¶ 1. Jody Ezell was indicted on two counts of receiving stolen property with a value of over $500 in violation of Mississippi Code Annotated section 97-17-70 (Rev. 2006). A jury trial occurred in the Circuit Court of Lincoln County on November 22-23, 2004. The jury found Ezell guilty on both counts, and the court sentenced him as a habitual offender to ten years on each count in the custody of the Mississippi Department of Corrections, to run consecutively. Ezell appeals, arguing in the alternative that (1) his conviction for receiving stolen property was improper because the evidence pointed to Ezell’s having stolen the property himself and (2) there was insufficient evidence on the element of guilty knowledge to support his conviction.

¶2. We find that there was sufficient evidence to support Ezell’s conviction of receiving stolen property and, therefore, we affirm his conviction and sentence.

FACTS

¶ 3. Ezell is the nephew of Tracy Lofton. Tracy and his wife, Alicia, live on Lofton Trail in Brookhaven, Mississippi. On January 3, 2004, Alicia reported to the Lincoln County Sheriffs Department that her black Yamaha motorcycle and Tracy’s sixteen foot flat bed trailer had been stolen from outside their home. Before being taken, the trailer had been sitting in the yard at the end of the driveway, visible from the road. The motorcycle had been leaning against a shed in the yard. The motorcycle had a tag. The motorcycle’s key was kept inside the house.

¶ 4. Stephanie Lofton testified that, in late December 2003, Ezell had briefly visited the Lofton residence. Only the Lof-tons’ children, Stephanie and Don, were home at the time of Ezell’s visit. Ezell spoke with Stephanie while standing in the driveway of the Loftons’ property. Stephanie stated that, from Ezell’s vantage point, the trailer and motorcycle were visible. Stephanie stated that Ezell commented that he had a motorcycle just like the one they had. At a family wedding on February 14, 2004, the Loftons saw Ezell and told him that their motorcycle and trailer had been stolen; Ezell said nothing in response.

¶ 5. On April 2, 2004, Ezell had a wreck while riding a motorcycle that was later identified by the vehicle identification number as the one stolen from Alicia. The officer from the Brookhaven Police Department who responded to the wreck observed that the motorcycle Ezell was riding had no tag. The officer did not ascertain if the motorcycle had been reported as stolen. The Brookhaven Police Department had the motorcycle towed to Highway 84 Chevron where it was stored. Later, Ezell went to Highway 84 Chevron and inquired about paying the storage fees in order to take the motorcycle out of storage. Ezell was unable to afford the storage fees and gave the motorcycle’s key, which had been in his possession, to the owner of Highway 84 Chevron.

¶ 6. In June 2004, Tracy was parked at a red light in Brookhaven and saw his trailer connected to another vehicle on the road. Tracy was able to recognize the trailer as his own due to some modifications he had made to the trailer. Tracy followed the vehicle to its destination and then talked to the vehicle’s driver, Rhett Gilcrease. Gil-crease informed Tracy that, sometime in February 2004, he had purchased the trailer from Ezell for $400. In response to Tracy’s questions, Gilcrease told Tracy that Ezell had a motorcycle. On June 5, 2004, Tracy informed the sheriffs department that he had located the trailer. The trailer Gilcrease bought from Ezell was identified as the one stolen from Tracy. It was established that, at some point before Gilcrease bought the trailer from Ezell, the trailer’s serial number had been removed.

¶ 7. Shortly thereafter, Ezell phoned the Loftons and spoke with Tracy. The Lof-tons’ caller identification device showed that Ezell was calling from the Spanish Inn in Brookhaven. While Tracy spoke with Ezell, Alicia called the sheriffs department and reported Ezell’s location. Meanwhile, Ezell told Tracy that he knew the authorities were looking for him but that he had not stolen the motorcycle and trailer. Ezell stated that he had purchased the motorcycle in Tylertown, Mississippi for $3,000, using the proceeds from selling a fleet of trucks. Ezell stated that the seller of the motorcycle had asked him to sell the trailer for him, and that Ezell had agreed, had sold the trailer to Gil-crease, and had given the proceeds to the seller. Ezell also told Tracy that a battery charger had been stolen at the same time as the motorcycle and trailer. Tracy testified that, at that time, only his insurer had been told that the battery charger was missing.

¶ 8. On June 9, 2004, Ezell was arrested at the Spanish Inn. On June 14, 2004, Ezell waived his rights and gave a statement to Captain Steve Rushing. According to Ezell, around the end of February 2004 or March 1, 2004, he had seen the motorcycle sitting atop the trailer at the Super 98 Truck Stop at the intersection of Highway 583 and Highway 98 in Tylertown. A sign advertised the motorcycle and trailer for sale. Ezell called the phone number on the sign and contacted David Freeman, who was selling the motorcycle and trailer. Freeman sold Ezell the motorcycle for $3,000. Freeman did not give Ezell the title to the motorcycle or a sales receipt. Ezell stated that Freeman let him borrow the trailer to take the motorcycle home. Freeman asked Ezell if he would sell the trailer for him, and Ezell agreed. Ezell sold the trailer and gave the proceeds to Freeman. Ezell told Officer Rushing that he had not seen Freeman since giving him the proceeds from the trailer sale. Ezell stated that, on February 14, 2004, when the Loftons told him about the theft of their motorcycle and trailer, he had not realized that the stolen items were the very items he had obtained from Freeman.

¶ 9. Ezell told Officer Rushing that he could verify his story by giving him Freeman’s phone number. However, Ezell never gave Officer Rushing the phone number. No one else was able to give Officer Rushing any information about Freeman. The managers of the Super 98 Truck Stop told Officer Rushing and testified at the trial that no motorcycle and trailer had ever been for sale there, that the truck stop did not allow the placement of vehicles for sale on the premises, and that employees continually monitored the truck stop premises and had any abandoned vehicles removed.

¶ 10. Ezell did not testify. The jury found Ezell guilty on both counts of receiving stolen property.

LAW AND ANALYSIS

I. THE STATE’S EVIDENCE POINTS TO THE DEFENDANT STEALING THE PROPERTY.

¶ 11. This issue attacks the sufficiency of the evidence of Ezell’s guilt of receiving stolen property. This issue was preserved by Ezell’s motion for a JNOV, which was denied by the trial court. On appellate review of the denial of a JNOV, “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.” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2004) (quoting Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). It is the jury’s role to evaluate the weight and credibility of the evidence and to resolve conflicts in the evidence. Latiker v. State, 918 So.2d 68, 73(¶ 12) (Miss.2005).

¶ 12. Invoking a precedent that one cannot be convicted of receiving what one has stolen, Ezell argues that the State’s evidence points to Ezell himself having stolen the property and, therefore, he could not have been convicted of receiving stolen property. According to Mississippi Code Annotated section 97-17-70(1) (Rev.2006):

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

The elements of the crime are: “(1) the [intentional] possession, receipt, retention or disposition of personal property (2) stolen from someone else (3) with knowledge or a reasonable belief that the property is stolen.” Washington v. State, 726 So.2d 209, 212-13(¶ 10) (Miss.Ct.App.1998). It is no defense to the crime that the person who stole the property has not been convicted, apprehended, or identified. Miss. Code Ann. § 97-17-70(2) (Rev.2006).

¶ 13. In 1986, the Supreme Court quoted a still-earlier precedent on the issue before us: “where a defendant is charged with receiving stolen goods, and the evidence shows that he is guilty of the larceny of the goods in question, he cannot be convicted of the offense with which he is charged.” Hentz v. State, 489 So.2d 1386, 1389 (Miss.1986) (quoting Thomas v. State, 205 Miss. 653, 657, 39 So.2d 272, 273 (1949)). In Thomas, the supreme court reversed Thomas’s conviction for receiving stolen property, namely fertilizer, where the evidence and all reasonable inferences drawn therefrom showed that Thomas himself had removed the fertilizer from the owner’s seed house. Thomas, 205 Miss, at 657-58, 39 So.2d at 273. In Hentz, the court reversed a conviction for receiving stolen property, a combine, where the trial testimony showed that Hentz and his accomplice had taken the combine from its owner and were guilty of grand larceny. Hentz, 489 So.2d at 1388-89.

¶ 14. The statutory language at the time of Hentz and Thomas was this: “If a person buy or receive in any manner or on any consideration personal property of any value, feloniously taken away from another, knowing the same to have been so taken, he shall be guilty of receiving stolen goods-” Miss.Code § 2249 (1942). The statute was not amended prior to the 1986 Hentz decision, though it had been recodi-fied. See Miss.Code Ann. § 97-17-69 (1972), repealed 1993 Miss. Laws ch. 359, § 5. The operative statutorily-identified acts for the crime were to “buy or receive” property, knowing it to be stolen.

¶ 15. The supreme court explained that the crime of receiving stolen property is not intended to impose a double penalty upon the thief, but is directed against those who would “make theft easy or profitable.” Hentz, 489 So.2d at 1389. The law has been that if in a trial for the offense of receiving stolen property, the evidence shows the defendant is guilty of the larceny of that property, the defendant cannot be convicted of receiving stolen property. Id. The law has been further refined to the effect that one who acted as an accessory before the fact to larceny and who received the goods after the theft, but was not present at the actual caption and asportation of the goods, may be indicted for either larceny or for receiving stolen goods, but not for both. Knowles v. State, 341 So.2d 913, 916 (Miss.1977). One guilty of larceny as a principal, who participated in the caption and asportation of the goods, may not be indicted for receiving stolen goods. Id.

¶ 16. These rules arguably have changed. In 1993, the legislature determined to “revise the crime of receiving stolen property” in various ways. 1993 Miss. Laws ch. 359, caption. Two different levels of penalties were provided for the receipt of property, depending on the property’s worth. Miss.Code Ann. § 97-17-70(3) & (4) (Rev.2006). More importantly for our purposes, the felonious acts by an accused were now these: “possesses, receives, retains or disposes of stolen property,” if the accused reasonably should know that the property was stolen. This crime, though still labeled “receiving stolen property,” now appears broader than the crime as it existed prior to 1993. One possible result of the legislative broadening would be to avoid the largely pointless difficulties of proving whether someone else committed the initial larceny.

¶ 17. We do not find that the supreme court has addressed whether the amended statutory language eliminated the restriction that a person cannot commit this offense of receiving stolen property if he, himself, was the thief. In one recent opinion, we did not note a possible change in the crime. This Court vacated a conviction of receiving a stolen gun, when all the evidence adduced at the trial showed that the defendant herself had taken the gun from its owner. Young v. State, 908 So.2d 819, 830(¶ 31) (Miss.Ct.App.2005). There was no evidence tending to show that Young had obtained the gun from some third person, and we therefore concluded that the evidence was insufficient to sustain Young’s conviction.

¶ 18. Ezell contends that, viewing the evidence in the light most favorable to the State, the evidence showed that he stole the motorcycle and trailer and thus the evidence was insufficient to sustain his conviction of receiving stolen property. If the statute no longer requires that there be evidence that someone else stole the property, then obviously the issue has no merit. Even if the statutory crime has not been altered in this way, Ezell’s argument still fails. In Young and related cases, the evidence was such that no reasonable jury could have concluded that the defendant had not obtained the property directly from the owner. Here, there was direct evidence that Ezell had obtained the property from a third person because Ezell told Officer Rushing that he had obtained the motorcycle and trailer from David Freeman and told Tracy that he had obtained them from someone in Tylertown. Viewing the evidence in the light most favorable to the verdict, a finding is justifiable that the defendant was not a principal to larceny. This issue is without merit.

II. THE STATE FAILED TO SHOW GUILTY KNOWLEDGE AT THE TIME OF THE INITIAL POSSESSION OF THE PROPERTY.

¶ 19. The crime of receiving stolen property requires that the person possess, receive, retain, or dispose of stolen property with knowledge it has been stolen or with reasonable grounds to believe it has been stolen. Miss.Code Ann. § 97-17-70(1) (Rev.2006). Ezell argues that there was insufficient evidence on the element of guilty knowledge to support his conviction because his conduct after acquiring the motorcycle was inconsistent with his having known the motorcycle was stolen property. Ezell points to the evidence that he openly possessed the motorcycle by routinely riding it around Brookhaven, including to and from his job on the main street in Brookhaven and to and from the homes of relatives who lived in the vicinity of the Loftons. Further, there was evidence that Ezell was in an accident while riding the motorcycle, received tickets from the police in connection with the accident, and checked on the motorcycle when it was being stored at Highway 84 Chevron. Ezell contends that this use of the motorcycle was inconsistent with his having had knowledge that the motorcycle was stolen property.

¶20. Despite Ezell’s open use of the motorcycle in Brookhaven, there was sufficient evidence on the element of guilty knowledge to sustain Ezell’s conviction of receiving stolen property. Tjie indictment charged Ezell with possessing the stolen trailer on or between the dates of January 3, 2004 and June 5, 2004, and with possessing the stolen motorcycle on April 2, 2004. There was evidence from which a reasonable jury could have inferred that on those dates Ezell knew or had reasonable grounds to know that the items in his possession were the ones stolen from the Loftons. The Loftons testified that, on February 14, 2004, they told Ezell that their motorcycle and trailer had been stolen. Ezell told Officer Rushing that, on February 14, 2004, he had not realized that the Loftons’s stolen motorcycle and trailer were the same motorcycle and trailer he had received from David Freeman. There was testimony that Ezell visited the Lofton residence in December 2003, that he commented about the motorcycle, and that the trailer was parked at the end of the driveway and visible from where Ezell was standing in the driveway. From this evidence, a reasonable jury could infer that Ezell was familiar with the Lofton’s motorcycle and trailer and that, as of February 14, 2004, he knew or should have known that the motorcycle and trailer in his possession were those stolen from the Lof-tons. Further supporting a jury finding that Ezell had guilty knowledge were the facts that the motorcycle’s tag had been removed sometime between its theft and Ezell’s motorcycle wreck, and that the trailer’s serial number had been obscured sometime between its theft and Ezell’s sale of the trailer to Gilcrease. The evidence was sufficient to enable a reasonable juror to conclude that Ezell knew or reasonably should have known that the motorcycle and trailer were stolen property. The significance of Ezell’s use of the motorcycle around Brookhaven was a matter for the jury to weigh.

¶ 21. We briefly discuss the sufficiency of the State’s evidence of the value of the motorcycle and trailer, an issue unaddressed by Ezell’s arguments on the sufficiency of the evidence. Ezell was convicted on both counts under section 99-17-70(3), which provides for up to a ten year maximum penalty and a $10,000 fine for a person convicted of receiving stolen property with a value of over $500. When an item’s value is an element of the crime, the State must provide proof as to the value of the item. Henley v. State, 729 So.2d 232, 238(¶ 25) (Miss.1998).

¶22. In Williams v. State, 763 So.2d 186, 188(¶ 7) (Miss.Ct.App.2000), we recognized that, in a receipt of stolen property prosecution, the correct measure of the value of the property is the property’s market value on the date of the crime. We further observed that, “[i]n the ordinary case ... the original cost of the property or any special value to the owner personally is not considered.” Id. (quoting Barry v. State, 406 So.2d 45, 47 (Miss.1981)). Williams was convicted of receiving stolen property, namely a car stereo and flashlight, with a value of over $250. Id. at 188(¶ 5). The only evidence of the value of the ear stereo and flashlight was that the items were in good condition, that the car stereo had been purchased two and a half years prior to the theft for $600, and the flashlight had been purchased one year before for $110. Id. at 188(¶ 6). We found that there was no competent evidence of the items’s market value on the date of the crime, and reversed Williams’s conviction and remanded for sentencing on the lesser crime of receiving stolen property not exceeding $250 in value. Id. at 188, 189 (¶¶ 8,10).

¶ 23. In this case, the sole evidence of the value of the motorcycle and trailer was their original purchase prices. Concerning the value of the motorcycle, Alicia testified that she had purchased the motorcycle used in the year 2000 for $5,600. Concerning the value of the trailer, Tracy testified that he had purchased the trailer used two or three years before the theft for $500, plus another trailer in trade. In Smith v. State, 881 So.2d 908, 909(112) (Miss.Ct.App.2004), we affirmed Smith’s conviction for attempted grand larceny pertaining to truck rims. The sole evidence of the value of the rims was the owner’s testimony that he had paid between $3,000 and $4,000 for the rims. Id. at 910(¶ 11). We found that, though the testimony about the original purchase price was not the strongest possible evidence of market value, it circumstantially provided a basis from which the jury could reasonably infer that the rims were worth at least $250 at the time of the theft. Id. As in Smith, the testimony sub judice was such that a reasonable jury could have inferred that the motorcycle and trailer had market values in excess of $500 at the times of their knowing possession by Ezell. We find that the evidence was sufficient to sustain Ezell’s conviction of two counts of receiving stolen property valued in excess of $500.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF CONVICTION OF COUNT ONE, RECEIVING STOLEN PROPERTY AND SENTENCE OF TEN YEARS; AND COUNT TWO, RECEIVING STOLEN PROPERTY AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER, WITH SENTENCES TO RUN CONSECUTIVELY, A TOTAL FINE OF $20,000 AND TOTAL RESTITUTION OF $8,750, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Jason HOLLAND a/k/a Jason Allan Holland, Appellant v. STATE of Mississippi, Appellee. Paul Sookraj, Appellant v. State of Mississippi, Appellee. Jason Holland a/k/a Jason Allan Holland and Paul Sookraj, Appellant v. State of Mississippi, Appellee.
    Nos. 2005-CA-01669-COA, 2005-CA-01673-COA, 2002-KA-01921-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.
    Rehearing Denied May 15, 2007.

      Jefferson D. Gilder, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   PROCEDURAL HISTORY AND STATEMENT OF THE FACTS

MYERS, P.J.,

for the Court.

¶ 1. On March 26, 2002 a woman was robbed at gun point in the Wal-Mart parking lot in Olive Branch, Mississippi. The victim’s description of her assailants and the vehicle in which they fled led to the apprehension of Jason Holland and Paul Sookraj, the appellants herein. Sookraj and Holland both confessed to Olive Branch police that they conspired to commit the robbery and that Sookraj had been the gunman, while Holland had driven the getaway car. The two men then led police to a residential trash can in Memphis, Tennessee, where they had disposed of the victim’s purse. On October 14, 2002, in the DeSoto County Circuit Court, Holland and Sookraj, each represented by separate counsel, pled guilty to the crime of armed robbery in violation of Mississippi Code Annotated section 99-39-1 (Rev.2000). Holland was sentenced to twenty years in the custody of the Mississippi Department of Corrections, with eight years to serve and twelve years suspended; Sookraj was sentenced to twenty years in the custody of the Mississippi Department of Corrections, with ten years to serve and ten years suspended.

¶ 2. Following their sentencing on November 8, 2002, Holland and Sookraj, through their new joint counsel, filed separate motions to withdraw their guilty pleas. The circuit court entered separate orders denying the motions to withdraw the pleas, finding that the court had no authority to reduce, suspend, or otherwise alter a lawfully imposed sentence. The circuit court order further stated that the proper procedure for the relief sought by Holland and Sookraj was to petition under the Mississippi Uniform Post-Conviction Collateral Relief Act, Mississippi Code Annotated section 99-39-1. Holland and Sookraj then appealed the circuit court’s denial of their respective motions to withdraw their pleas of guilt to this Court. On motion of the State of Mississippi, Holland’s and Sookraj’s consolidated appeal was dismissed on November 4, 2003. See Sookraj v. State, No.2002-KA-01921-COA (Miss.Ct.App. Nov.4, 2003).

¶ 3. On March 2, 2005, Holland and Sookraj filed separate petitions for post-conviction collateral relief with the Circuit Court of DeSoto County. In their petitions, Holland and Sookraj each raised the issues of insufficient assistance of counsel and involuntariness of the pleas. Finding both Holland’s and Sookraj’s claims to be without merit, the circuit judge dismissed the petitions without holding an evidentia-ry hearing. From the circuit court’s ruling, Holland and Sookraj now bring this consolidated appeal and raise the following issues, which we quote verbatim:

Issue 1: Did the Court err in finding that Mr. Sookraj and Mr. Holland had not made a prima facie case so that at least a hearing was required?
Sub-Issue A: Was the promise of the officers prior to getting the confession enforceable?
Sub-Issue B: Was the confession tainted by promises of leniency which were specific enough to warrant reliance?
Sub-Issue C: Was the identification of Mr. Sookraj in the photo lineup tainted due to one Indian and five black males?
Sub-Issue D: Was other evidence subject to suppression due to the fruit of the poisonous tree?
Sub-Issue E: Was counsel ineffective for Mr. Holland and/or Mr. Sookraj?

¶ 4. In their reply brief, Holland and Sookraj attempt to define sub-issues A-D as issues that deal only with the prejudice to a defense under the second prong of the Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) test for ineffective assistance of counsel, rather than non-jurisdictional defects or rights incident to a jury trial that would be deemed waived by the entry of their guilty pleas. However, what is clearly under attack in the appellant’s brief is the volun-tariness of the confessions, and therefore, the voluntariness of the guilty pleas, as well as the ineffectiveness of Holland’s and Sookraj’s separate counsel in advising them that the police officers’ promises of leniency in sentencing were not enforceable, and the cumulative effect of those three issues on the necessity of an eviden-tiary hearing before the trial court. Thus, we must address the following three issues:

I. WHETHER THE CONFESSIONS WERE VOLUNTARY?

II. WHETHER THE GUILTY PLEAS WERE KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY MADE?

III. WHETHER COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE?

¶ 5. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. This Court employs the “clearly erroneous” standard when reviewing a trial court’s denial of post-conviction relief. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). The trial court’s denial of post-conviction relief will not be addressed absent a finding that the trial court’s finding was clearly erroneous. Andrews v. State, 932 So.2d 61, 62(¶ 4) (Miss.Ct.App.2006). However, we review questions of law de novo. Brown, 731 So.2d at 598(¶ 6).

LEGAL ANALYSIS

¶ 7. Holland and Sookraj first assert that the trial court erred in failing to conduct an evidentiary hearing to determine whether their guilty pleas were involuntary, and second that they received constitutionally ineffective assistance of counsel when entering their separate guilty pleas. In order to have obtained the right to an evidentiary hearing on the merits of their ineffective assistance of counsel claims, Holland and Sookraj were required to establish a prima facie case in their petitions to the lower court. Robertson v. State, 669 So.2d 11, 13 (Miss.1996). When a motion for post-conviction relief is filed, the trial judge is obligated to review the motion, all files, records, transcripts, and correspondence relating to the judgment. Miss.Code Ann. § 99-39-11(1) (Rev.2000); Cole v. State, 608 So.2d 1313, 1325 (Miss.1992). If upon such review it is clear that there is no entitlement to relief, the judge may enter an order dismissing the action. Miss.Code Ann. § 99-39-11(2) (Rev.2000); Cole, 608 So.2d at 1324. “We adhere to the principle that a post-conviction relief petition which meets basic pleading requirements is sufficient to mandate an evidentiary hearing unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Robertson, 669 So.2d at 13 (citing Harveston v. State, 597 So.2d 641, 643 (Miss.1992)). A post-conviction claim for relief is properly dismissed without the benefit of an evidentiary hearing where it is manifestly without merit. Id. (citing Sanders v. State, 440 So.2d 278, 284 (Miss.1983)).

I. WHETHER THE CONFESSIONS WERE VOLUNTARY?

¶ 8. Holland and Sookraj argue that their confessions were not voluntary because they relied on alleged promises made by Olive Branch police officers that they would receive lighter sentences, such as boot-camp or probation, if they confessed to the armed robbery. The State argues that Holland and Sookraj waived any right to exclude the allegedly coerced confessions when they voluntarily pled guilty to the charge of armed robbery.

¶ 9. We have consistently “recognized that a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial.” Swindoll v. State 859 So.2d 1063, 1065(¶ 9) (Miss.Ct.App.2003) (quoting Anderson v. State, 577 So.2d 390, 391 (Miss.1991)). Included in these rights are “those secured by the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States, as well as those comparable rights secured by Section[s] 14 and 26, Article 3, of the Mississippi Constitution of 1890.” Id. (quoting Sanders v. State, 440 So.2d 278, 283 (Miss.1983)). Accordingly, if Holland and Sook-raj entered valid guilty pleas, then they explicitly waived any right to suppress the alleged coerced confessions. Since Holland and Sookraj have also raised the issue as to whether their pleas were indeed valid, we find that any ruling as to the volun-tariness of the confession, or waiver thereof, necessarily depends on our holding as to the validity of the guilty plea.

II. WHETHER THE GUILTY PLEAS WERE KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY MADE?

¶ 10. Holland and Sookraj argue that their separate pleas were not entered knowingly, intelligently or voluntarily. They claim that their separate former counsel incorrectly advised them that the alleged promises of leniency in sentencing, made by the Olive Branch police to elicit their confessions, could not be enforced. Holland and Sookraj claim to have relied on this advice when entering their separate guilty pleas. On appeal, Holland and Sookraj claim that they would not have pled guilty if they had known that the court could have been bound by their reliance on the officers’ promises or that their confessions could have been excluded.

¶ 11. Our standard of review for considering the voluntariness of a guilty plea is well-settled. “This court will not set aside findings of a trial court unless such findings are clearly erroneous.” Swindoll, 859 So.2d at 1065(¶ 9) (quoting Weatherspoon v. State, 736 So.2d 419, 421(¶ 5) (Miss.Ct.App.1999)). A guilty plea is not binding upon a criminal defendant unless it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). A plea is deemed “voluntary and intelligent” only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea. Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991). In addition, the court must examine the entire record to determine whether the pleas were made knowingly, intelligently, and voluntarily. Weatherspoon v, 736 So.2d at 421(¶ 5). The burden of establishing a claim for an involuntary guilty plea is on the petitioner. Green v. State, 802 So.2d 181, 184(¶ 19) (Miss.Ct.App.2001).

¶ 12. The record does not support Holland’s and Sookraj’s claims that their guilty pleas were involuntary. As noted above, Holland and Sookraj claim that their separate former counsel failed to advise them that the alleged promises of leniency in sentencing were enforceable, and that their confessions, based on reliance on those alleged promise of leniency in sentencing, could be excluded from evidence at trial. However, in their sworn petitions to enter a guilty plea, both Holland and Sookraj stated under oath that “[m]y lawyer has advised me of the nature of the charge and the possible defenses that I may have to the charge,” and each declared that “no officer or agent of any branch of government, nor any other person has made me any promises or inducements of any kind to me or within my knowledge to anyone else that I will receive a lighter sentence, probation, early release, or any other form of leniency if I plead guilty.” Additionally, at the guilty plea hearing, the circuit court judge completed a detailed inquiry into the voluntariness of the pleas. That, inquiry follows:

By the Court: You both understand that you are being charged with conspiracy to commit armed robbery and armed robbery?
By Holland: Yes, sir.
By Sookraj: Yes, sir.
By the Court: Have you fully discussed all the facts and circumstances surrounding your case with your lawyers?
By Holland: Yes, sir.
By Sookraj: Yes, sir.
By the Court: Have they explained to you and do you understand what the charges mean?
By Holland: Yes, sir.
By Sookraj: Yes, sir.
By the Court: Have they talked to you about any defenses you might have if you went to trial?
By Holland: Yes, sir.
By Sookraj: Yes, sir.
By the Court: Are you satisfied with the advice they’ve given you?
By Holland: Yes, sir.
By Sookraj: Yes, sir.
By the Court: After full discussions of your case, was it your own decision to enter a plea of guilty?
By Holland: Yes, sir.
By Sookraj: Yes, sir.
By the Court: Has any body promised y’all anything or offered you any reward trying to get you to plead guilty?
By Holland: No, sir.
By Sookraj: No, sir.

¶ 13. After review of the record, we find that the trial judge took every precaution in assuring that Holland’s and Sookraj’s pleas were indeed voluntary. There is ample support in the petition and the hearing transcript to support the trial judge’s finding that the pleas were knowingly, intelligently, and voluntarily given. “The Court can place great weight on the sworn testimony of a defendant given at a plea hearing leaving the defendant with a high hurdle in recanting that testimony.” Pevey v. State, 914 So.2d 1287, 1290(¶ 8) (Miss.Ct.App.2005). When one “stand[s] in open court and proclaim[s] his guilt,” he waives the right to later assert his confession was involuntary. Garner v. State, 864 So.2d 1005, 1008(¶ 14) (Miss.Ct.App.2004) (citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973)). In Tollett, the United States Supreme Court held:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

Tollett, 411 U.S. at 267, 93 S.Ct. 1602. The hearing transcript reflects that both Holland and Sookraj admitted their guilt in open court. We hold their pleas to be knowingly, intelligently, and voluntarily made, and as a result Holland and Sookraj waived any rights regarding the alleged coerced confession.

III. WHETHER COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE?

¶ 14. Holland and Sookraj finally argue that they received constitutionally ineffective assistance of counsel. They claim that their separate counsel incorrectly advised them that the alleged promises of leniency in sentencing, made by the Olive Branch police to elicit their confessions, could not be enforced. Holland and Sookraj claim to have relied on their separate former attorneys’ advice when entering their separate guilty pleas. On appeal, Holland and Sookraj claim that they would not have pled guilty had they known that the trial court could have been bound by their reliance on the officers’ promises of leniency in sentencing.

¶ 15. We review Holland’s and Sookraj’s claims of ineffective assistance of counsel under the familiar two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). In order to have been afforded an evidentiary hearing on this issue, Holland and Sookraj must have established by prima facie evidence in their motion for post-conviction relief (1) that the performance of the their separate counsel was deficient, and (2) but for the deficiencies, the outcome of the trial would have been different. Ward v. State, 914 So.2d 332, 336(¶ 12) (Miss.Ct.App.2005). The burden of proof under both prongs of the Strickland test rests with Holland and Sookraj. Taylor v. State, 682 So.2d 359, 363 (Miss.1996). Further, “the adequacy of counsel’s performance, as to its deficiency and prejudicial effect, should be measured by a ‘totality of the circumstances.’ ” Id. In addition, “there is a strong but rebuttable presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.

¶ 16. If true, Holland’s and Sookraj’s counsels’ alleged advice that the promises of leniency in sentencing, made by police when eliciting their confessions, could not be enforced would be an incorrect statement of the law. See Miller v. State, 243 So.2d 558 (Miss.1971). However, at no time prior to sentencing did Holland or Sookraj offer any evidence that the statements made to them by the Olive Branch police had anything to do with their confessions or their guilty pleas. Consequently, the officers’ alleged promises cannot be said to be the proximate cause of the confessions. Jones v. State, 776 So.2d 643, 650(¶ 25) (Miss.2000). Moreover, the petitions and the hearing transcripts outlined above are abundantly clear. The trial judge asked Holland and Sookraj very particular questions regarding their representation. Holland nor Sookraj presented any testimony that either of their separate former counsel had misadvised them or as to the possibility that their confessions were the result of promises of leniency in sentencing. Both Holland and Sookraj were specifically asked if they were satisfied with the representation provided by their attorneys, and both answered in the affirmative. Therefore, in light of the facts of this case, we hold that Holland and Sookraj brought forth no evidence of constitutionally ineffective assistance of counsel and the issue is without merit.

CONCLUSION

¶ 17. Our review of the record in this case demonstrates that the trial judge’s decision to dismiss Holland’s and Sookraj’s petitions for post-conviction relief without an evidentiary hearing was not clearly erroneous. The record clearly indicates that the issues raised in the petition are manifestly without merit, and we find that the trial judge acted well within his discretion when he dismissed the petitions without conducting an evidentiary hearing, and upon a finding that Holland and Sookraj could prove no set of facts which would entitle them to relief. Accordingly, the denial of Holland’s and Sookraj’s petitions for post-conviction relief is affirmed.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY DENYING THE PETITIONS FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

KING, C.J., LEE, P.J., CHANDLER, GRIFFIS, ISHEE, AND ROBERTS, JJ., CONCUR. IRVING AND BARNES, JJ., CONCUR IN RESULT ONLY. CARLTON, J., NOT PARTICIPATING.


author: BARNES, J.,

text:
    Gary SACUS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01517-COA.
    Court of Appeals of Mississippi.
    March 27, 2007.

      Thomas M. Brahan, attorney for Appellant.
    Office of the Attorney General by John R. Henry, attorney for Appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Gary Sacus was convicted of manslaughter in the Circuit Court of Monroe County and sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections. Sacus appeals to this Court, claiming (1) the trial court erred in failing to grant his motion for judgment for acquittal notwithstanding the verdict (“JNOV”) or, in the alternative, a new trial and (2) the trial court erred in allowing testimony that Sacus refused to give a recorded or written statement. Finding no error, we affirm his conviction.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On the afternoon of March 13, 2004, at a park in Aberdeen, Mississippi, Gary Sacus participated in a game of pick-up basketball with David Springer, Joe L. McMillian, and Frank Earl Gladney, Jr. Sacus and Springer played against McMil-lian and Gladney. The players decided to wager $100 each on the game for a total pot of $400. The cash was held by a third party at the park. During the game, an altercation arose. Sacus decided to quit playing while his side was losing, and the game ended. An argument began over the return of the wagered money. Sacus and McMillian started to fight. Sacus subsequently left the park without the return of his wagered money. Several witnesses testified that he was angry at this time. Sacus said he went from the park to his mother’s gravesite, and then drove to the West Point Wal-Mart and made some purchases. From there Sacus drove to Columbus where he purchased a handgun from Gary’s Pawn & Gun. According to security videotape, Sacus left the pawn shop at approximately 5:13 p.m.; he returned to Aberdeen.

¶ 3. While driving around Aberdeen, Sa-cus was stopped in his vehicle by Frank Gladney and Forrard McMillian, Joe McMillian’s cousin, who were also in a vehicle. Forrard testified that Sacus and Gladney proceeded to talk about the wagered money. Forrard also testified that Sacus “seemed upset” and told Gladney, “I want my money.” However, Sacus testified that he was merely on his way home when they stopped him, and it was Glad-ney who “was cussing about the money.” Forrard and Gladney then went to the apartment of an acquaintance, Tonique Wilson, who had several guests at her apartment. Sacus knew Wilson as well and arrived in front of her apartment. Testimony conflicts about whether Sacus entered Wilson’s apartment looking for Gladney; however, it is uneontested that Gladney went outside Wilson’s apartment prepared for an altercation with Sacus over the money wagered on the basketball game.

¶4. It is undisputed that what transpired next was that Sacus and Gladney had words about the wager, engaged in a tussle, and Sacus shot Frank Gladney, who was unarmed, three times with the newly purchased gun. Sacus then left the scene and began driving to his home nearby. His family, who had heard about the shooting by this time, got in their car and intercepted him. Shortly thereafter, escorted by his family, Sacus turned himself in to the Aberdeen police. Frank Earl Gladney Jr. was pronounced dead upon arrival at the hospital in Aberdeen at 6:22 p.m.

¶ 5. Back at the Aberdeen police station, at 6:19 p.m., Officer Quinell Shumpert read Sacus his Miranda rights. Sacus told Officer Shumpert he would cooperate and talk to him; however, he insisted he did not want his statement tape recorded, nor would he write out his own statement and sign it. Further, Sacus refused to sign a “Waiver of Rights” form. However, as Officer Shumpert began his interview it was interrupted by a call from the hospital advising Officer Shumpert that Frank Gladney was deceased. Officer Shumpert stopped the interview and went to the hospital to obtain statements.

¶ 6. Upon the resumption of their interview, Sacus gave his oral statement about the shooting to Officer Shumpert. He spoke of the basketball game and the wager. Sacus stated that Gladney came outside in front of Wilson’s apartment with a beer bottle. They proceeded to get in an altercation about the wager money. Sacus then stated that Gladney attacked him so he grabbed his gun from the driver’s seat and shot Gladney, implying his actions were in self-defense. When Officer Shum-pert asked Sacus “who rides around town with a gun sitting in the driver’s seat?” Sacus began to cry and invoked his right to remain silent.

¶ 7. On September 8, 2004, Gary Sacus was indicted by a Monroe County grand jury for murder. Sacus’s three day trial commenced on March 1, 2005, in the Circuit Court of Monroe County. During the State’s opening statement, reference was made to Sacus’s refusal to tape record or sign a written statement, and his invocation of his right to remain silent. Thus, after opening statements, Sacus’s counsel moved to exclude any reference or testimony regarding that point during the interview when Sacus invoked his Miranda rights. Defense counsel acknowledged that while Sacus waived his Fifth Amendment rights regarding what he said during his oral statement to Officer Shumpert, any comment on Sacus’s invocation of his right to remain silent would be unconstitutional. The trial judge granted the defense’s motion in limine “to the extent that there should be no statement or discussion or question or inference with respect to the defendant’s right to assert his silence.”

¶ 8. During the State’s case-in-chief, twelve witnesses were called to the stand, most of whom were in the vicinity of the shooting and knew the victim and defendant. Several witnesses heard the gunshots, but only Forrard McMillian claimed to be an eyewitness to the entire shooting, having watched from the window of Wilson’s apartment. He testified that Sacus initiated the fight with Gladney, then retrieved the gun from his car, told Gladney he wanted his money, and shot him one time, at which point Gladney offered to get Sacus’s money. Then, Forrard testified that Gladney, upon rising, rushed Sacus in a supposed measure of self-defense, they tussled over the gun, and then Gladney was shot two more times. Tonique Wilson and Virginia White, who was the victim’s girlfriend, corroborated parts of this testimony. Several of the State’s witnesses also testified that as Sacus left the scene, he threatened that Joe L. McMillian would be “next.”

¶ 9. Officer Shumpert was the last of the State’s witnesses to testify. On the stand, Officer Shumpert recounted his interview with Sacus on March 13. When he came to the point in his testimony where he said “I ... advised Mr. Sacus of his rights,” the prosecuting attorney stopped the officer’s testimony. A conference then ensued between the judge and both counsel outside of the hearing of the court reporter, after which the State proceeded to introduce Sacus’s waiver of rights form. The judge noted a continuing objection by defense counsel over the introduction of the form. As the examination of Officer Shumpert resumed, the State elicited testimony that Sacus refused to give a tape recorded or written statement. Officer Shumpert then described their interview until the moment Sacus invoked his right to remain silent. No further testimony was elicited from Officer Shumpert as to why the interview stopped. At the close of the State’s casein-chief, defense counsel reiterated his continuing objection to Officer Shumpert’s testimony regarding Sacus’s refusal to write or tape record his statement or have it tape recorded. Defense counsel argued that this, too, was a comment on Sacus’s constitutional right to remain silent. The judge overruled the objection.

¶ 10. Next, defense counsel moved for a directed verdict, claiming the State had failed to prove Sacus acted with malice, the essential element of murder, to a reasonable-minded jury beyond a reasonable doubt. The judge denied the motion, and the defense proceeded with its case. Defense witnesses included two of Sacus’s sisters and Sacus himself. On the stand, Sacus gave his own version of the shooting. He testified that Gladney came out of Wilson’s apartment cursing and wielding a beer bottle. When Sacus attempted to get out of his vehicle, he claimed Gladney shoved him against the door. Supposedly fearing for his safety, Sacus retrieved his newly purchased gun from the front seat, at which time he and Gladney tussled over it. Sacus claims he then unintentionally shot Gladney.

¶ 11. At the end of the three day trial, the jurors were provided with instructions on both murder and manslaughter. The jury rejected the charge of murder and returned a verdict of guilty for the lesser offense of manslaughter. The trial judge sentenced Sacus to twenty years in the custody of the Mississippi Department of Corrections. Additionally, she assessed Sacus a fine of $5,000, and further, required him to pay the following: $500 to the Mississippi Crime Victims’ Compensation Fund, $7,200 to the Gladney family as restitution for the funeral costs of the victim, and the court costs of the proceeding. Sacus filed a motion for JNOV or, in the alternative, a new trial. The trial court denied the motion, and Sacus perfected his appeal.

ISSUES AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT SACUS’S MOTION FOR JNOV OR, IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL.

¶ 12. A motion for JNOV challenges the sufficiency of the evidence presented to the jury. McClain v. State, 625 So.2d 774, 778 (Miss.1993). “[T]he 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(¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). This Court’s standard of review is to analyze “the evidence in the light most favorable to the prosecution, [and decide if] any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (citations omitted). The appellee receives “the benefit of all favorable inferences that may be reasonably drawn from the evidence.” McClendon v. State, 852 So.2d 43, 47(¶ 11) (Miss.Ct.App.2002) (citing Baker v. State, 802 So.2d 77, 81(¶ 13) (Miss.1995)). Furthermore, all credible evidence supporting the verdict will be accepted as true. Walker v. State, 881 So.2d 820, 831(¶ 32) (Miss.2004). This Court will reverse on the issue of legal sufficiency of the evidence when the facts favor the appellant to such an extent that “reasonable men could not have found appellant guilty.” McClendon, 852 So.2d at 47(¶ 11). However, this Court is required to affirm the judgment of the trial court on the sufficiency of the evidence “where substantial evidence of such quality and weight exists to support the verdict and where reasonable and fair minded jurors may have found appellant guilty.” Id.

¶ 13. Alternatively, unlike a motion for JNOV, a motion for a new trial challenges the weight, not the sufficiency, of the evidence. Purnell v. State, 878 So.2d 124, 129(¶18) (Miss.Ct.App.2004) (citing Smith v. State, 802 So.2d 82, 85-86 (Miss.2001)). This Court will review the trial court’s denial of a motion for a new trial under an abuse of discretion standard. Johnson v. State, 904 So.2d 162, 167(¶ 11) (Miss.2005). This Court “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.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). The evidence will be analyzed “in the light most favorable to the verdict.” Id.

¶ 14. In our case, the jury was instructed that if the State failed to prove one or more of the elements of the crime of murder, they could proceed in their deliberations to decide if Sacus was guilty of manslaughter. The jurors were told that for a conviction of manslaughter they must find evidence beyond a reasonable doubt that Sacus “did wilfully, unlawfully and felo-niously, without authority of law, kill and slay Frank Earl Gladney, Jr., without malice aforethought, in the heat of passion, by use of a deadly weapon, and not in necessary self defense.” The jury was also instructed that if they found the killing of Gladney “committed by accident and misfortune, in the heat of passion upon any sudden and sufficient provocation,” then they must acquit Sacus.

¶ 15. Sacus argues that the trial court erred in denying his motion for JNOV or, in the alternative, a new trial. Specifically, Sacus contends that, even though he was charged and tried for murder, the jury had insufficient evidence to find him guilty of the lesser offense of manslaughter. Sacus argues that there was no testimony that he was still angry at Gladney at the time he bought the hand gun, thus evidence of the purchase of the hand gun which ultimately killed Frank Gladney was irrelevant. Nor did he know Gladney had his $100, but had decided to keep $50. The testimony of the State’s key witness, Forrard McMillian, the only self-proclaimed eyewitness to the entire shooting, Sacus claims is rendered implausible because it conflicts with testimony of two other witnesses. Sacus also argues that testimony of Tonique Wilson, who claimed to see the two men tussling after she heard the first shot, renders Forrard’s testimony implausible. Thus, the defense contends that the only credible version of the events leading to the tragic shooting is from the defendant himself, who claims the shooting was oddly both an accident and in self-defense. Finally, regarding the weight of the evidence, Sacus maintains that a reasonable and fair-minded jury could not find the State proved, beyond a reasonable doubt, the element of willfulness as required for a conviction of manslaughter, when the evidence so profoundly points to a shooting of accident and misfortune.

¶ 16. After a thorough review of the record, we find that the trial court did not err in denying Sacus’s motion for JNOV or alternatively a new trial. Further, as the State points out in its brief, defense counsel did not renew his motion for a directed verdict originally made at the end of the State’s case-in-chief. The motion for a directed verdict is cited in the JNOV motion. In order to preserve for appeal the trial court’s denial of a directed verdict, the motion must be renewed at the end of the defense’s case, or a peremptory instruction should be requested. Green v. State, 631 So.2d 167, 171 (Miss.1994) (citing Roberts v. State, 582 So.2d 423, 424 n. 1 (Miss.1991)). Since neither of these actions were performed, any claim of error regarding denial of a directed verdict is procedurally barred.

¶ 17. In analyzing the evidence in the light most favorable to the State, we find there was sufficient evidence to convict Sacus of manslaughter. The evidence presented at trial proves that Sacus had the willful intent necessary for manslaughter. While trial testimony conflicts about certain details, it is the province of the jury to resolve these conflicts and decide which witnesses are credible. Jones v. State, 920 So.2d 465, 472-73(¶22) (Miss.2006) (citing Jackson v. State, 614 So.2d 965, 972 (Miss.1993)). Several witnesses testified that Sacus was angry that his $100 wager had not been returned. The purchase of the gun in Columbus, even if coincidental, contributed to Sacus’s wilful intent. Many witnesses saw Sacus and the victim arguing before the shooting. The evidence is undisputed that Sacus unnecessarily introduced a deadly weapon into a disagreement, with tragic results. Furthermore, it is hard to fathom how a victim could be “accidentally” shot not once, but three times. The jury rejected the theory that the killing was by accident and misfortune. It also rejected the theory that Sacus killed Gladney with “malice aforethought,” the intent necessary for a murder conviction. In light of the evidence, we find any rational juror could have found beyond a reasonable doubt that the State proved all the elements of manslaughter. Regarding the weight of the evidence presented at trial to support a guilty verdict, this Court finds it substantial. Allowing Sacus’s conviction to stand would not sanction an unconscionable injustice. Thus, the trial court did not err in denying Sa-cus’s motion for JNOV or a new trial. This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING OFFICER SHUMPERT TO TESTIFY THAT SACUS REFUSED TO GIVE A RECORDED OR WRITTEN STATEMENT.

¶ 18. During the State’s opening statement, the prosecutor made a comment that Sacus refused to give the Aberdeen police a written or recorded statement, and that when he was asked “who rides around with a loaded gun right there in the seat of their car?” Sacus started crying and did not want to talk anymore. After opening statements, defense counsel stated:

an inference was thrown out for the jury that [Sacus] got to a point and things got sticky and so he decided to be silent. He has a right to be silent, and any comment on that right to be silent is unconstitutional. So we would ask that the prosecution not refer to that, that Major Shumpert not refer to that when he recites Mr. Sacus’ oral statement. Mr. Sacus waived his right to the point of what he said. Past that point, he exercised his Fifth Amendment privilege, and we say that that has to be without comment.

The judge granted Sacus’s motion in li-mine, which was made after opening statements, to the extent the State must not mention or make inferences to Sacus’s assertion of his right to remain silent. During Officer Shumpert’s testimony, defense counsel also objected to the introduction of the waiver of rights form. He made a “continuing objection into the record to both the document and the testimony that we referred to at the bench, and I’ll fill that out more during recess.” Then, during the recess, defense counsel stated for the record his objection was regarding any comment on Sacus’s refusal to record or write his statement, which is different from his original objection to mentioning the point at which Sacus invoked his right to remain silent. The judge overruled Sa-cus’s objection, responding that “[t]he remedy suggested at the bench was identification of that Miranda rights statement but not introduction of that statement, and ... it indeed was not introduced.” (Emphasis added).

¶ 19. On appeal, Sacus argues that the exercise of his right to remain silent would also include his right to refuse to record or write his statement-a statement which he orally gave to the police. Sacus argues that the questions elicited from Officer Shumpert on direct examination by the State violated the prior motion in limine agreed upon by both parties after opening statements in order to purposefully prejudice the defendant. Further, Sa-cus argues this tactic was an intentional violation of his rights under the Fifth Amendment of the U.S. Constitution and article 3, section 26 of the Mississippi Constitution. Sacus cites Griffin v. State, 557 So.2d 542 (Miss.1990), for the proposition that the prejudice resulting from the admission of his refusal to write or record a statement casts doubt on the truthfulness of his statement. Id.

¶20. We find Sacus’s argument unpersuasive. The motion in limine properly concerned only the invocation of Sa-cus’s right to remain silent, not his refusal to write or record a statement before he invoked this right. A refusal to write or record a statement which is ultimately given to police orally is not equivalent to an invocation of one’s Fifth Amendment rights. During trial, the State’s examination of Officer Shumpert properly stopped at the point of the interview where Sacus invoked his right to remain silent and went no further. Officer Shumpert’s testimony about Sacus’s refusal to write or record a statement was merely a part of the preceding police interview. Sacus waived his privilege to remain silent regarding his refusal to make a written or recorded statement. He gave an oral statement to police, not to mention testifying at trial. Additionally, since Sacus gave an oral statement to police, we fail to understand how testimony of refusal to write or record a statement would prejudice him further. Additionally, this refusal is probative as to why there is no handwritten or recorded statement by Sacus in the record.

¶ 21. Regarding Griffin cited in Sacus’s brief, we find this case is distinguishable in that it involves accusations of severe pros-ecutorial misconduct where the defendant’s decision not to testify, and thereby exercise his constitutional guarantee not to witness against himself, is mentioned by the prosecutor. Griffin, 557 So.2d at 552. Here, Sacus decided to testify at trial, and the prosecution properly did not comment on Sacus’s invocation of his right to remain silent while he was being examined by Officer Shumpert. Therefore, the trial court did not err in allowing testimony that Sacus refused to make a written or recorded statement. This issue is without merit.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND PAYMENT OF A FINE OF $5,000, PAYMENT OF $500 TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND, AND PAYMENT OF $7,200 IN RESTITUTION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONROE COUNTY.

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

      . The form both advised Sacus of his Miranda rights and that he had waived these rights. Sacus signed the form acknowledging he had been read his Miranda rights, but he refused to sign the form acknowledging he had waived them.

      . The Mississippi Constitution states "[i]n all criminal prosecutions the accused shall ... not be compelled to give evidence against himself; Miss. Const, art. 3, § 25. The Fifth Amendment of the United States Constitution reads "[n]o person ... shall be compelled in any criminal case to be a witness against himself, ...” U.S. Const, amend. V.


author: IRVING, J.,

text:
    Christina MAYFIELD, Appellant v. Joel MAYFIELD, Appellee.
    No. 2005-CA-01576-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.

      Walter Wesley Teel, attorney for appellant.
    Wendy C. Hollingsworth, Ocean Springs, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. Joel and Christina Mayfield agreed to an irreconcilable differences divorce and submitted two issues to the Harrison County Chancery Court for decision: custody of their two minor children and equitable division of the marital home. The court awarded custody of the children and the marital home to Joel. Aggrieved, Christina appeals and asserts the following issues, which we quote verbatim:

1.The chancellor erred in granting custody to the appellee, and as a matter of law committed manifest error under Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983) by failing to properly apply the Albright factors, singling out certain factors and placing undue emphasis on other factors instead of considering them as a whole and thereby not properly analyzing and making the appropriate findings as to each factor.
2. The court erred in allowing the use of the psychological report of Don Hughes to be used in evidence to cross-examine him.
3. The court improperly allowed into evidence certain statements under the “excited utterance” exception to the hearsay rule.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Joel and Christina were married on December 9, 2000, in Harrison County, Mississippi. Two children were born to the parties prior to the marriage: Abbey, born November 3,1998, and Joel, Jr., born August 11, 2000. The parties separated on or about November 29, 2001.

¶ 4. On March 1, 2002, Joel filed a complaint for divorce. Christina responded on March 7, 2002, by filing an answer and counterclaim for divorce. Both parties filed motions for temporary relief, and on June 27, 2003, the court held a hearing to determine which party would be awarded temporary custody. The court ordered the parties to share custody of the children, alternating weeks, until a full hearing could be held to determine permanent custody. The court also issued an immediate temporary injunction against Don Hughes, Christina’s paramour, enjoining him from having any contact with the ehil-dren. The court also prohibited Anthony, Joel’s brother, from having unsupervised contact with the children and ordered that he not be present in the home when the children came to Joel’s home for overnight visits.

¶ 5. On September 3, 2003, a three-day hearing commenced. At the close of the hearing, the chancellor appointed a guardian ad litem and ordered that a home study be conducted by the chancery court clinician. On October 10, 2003, the court entered a second temporary order granting primary custody to Christina and visitation privileges to Joel. The court ordered that Anthony have no contact with the children and specifically ordered that Hughes be “totally isolated from the children.” Nevertheless, Christina continued to allow Hughes to have contact with the children.

¶ 6. A hearing was held on November 17, 2003, where the chancellor heard from the guardian ad litem who had filed an interim report in which she made a recommendation to the court that it consider making a temporary change in custody and visitation. On November 26, 2003, the chancery court issued a third and final temporary order which modified its prior custody award by granting temporary physical custody to Joel. On July 8, 2005, the chancellor entered a final judgment of divorce, in which he awarded primary physical custody to Joel, and visitation privileges to Christina. The chancellor also ordered Christina to keep the children away from Hughes until she and Hughes were married, and until Hughes presented to both the court and Joel certification documenting his successful completion of an anger management course. It is from this judgment that Christina appeals.

¶ 7. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Custody

¶ 8. Christina contends that the chancellor failed to properly apply the Al-bright factors, and therefore erred in awarding custody to Joel. “[An appellate court] will not disturb a chancellor’s judgment ... unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Chapel v. Chapel, 876 So.2d 290, 292-93(¶ 8) (Miss.2004) (citing Townsend v. Townsend, 859 So.2d 370, 371-72(¶ 7) (Miss.2003)). “On appeal [an appellate court] will not reverse a chancery court’s factual findings, be they of ultimate fact or of evidentiary fact, where there is substantial evidence in the record supporting these findings of fact.” Smith v. Jones, 654 So.2d 480, 485 (Miss.1995) (quoting Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991)).

¶ 9. In Albright, the Mississippi Supreme Court enumerated twelve factors that chancellors must consider in making custody determinations: age, health and sex of the child; which parent had continuity of care prior to the separation; which parent has better parenting skills; which parent has the willingness and capacity to provide care for the child; employment status of the parents, including responsibilities associated with employment; age and physical and mental health of each parent; the emotional bond between parent and child; parents’ moral fitness; “the home, school and community record of the child;” the child’s preference, provided that the child is old enough to express such preference; which parent has a more stable home and work environment; “and other factors relevant to the parent-child relationship.” The chancellor is mandated to make a decision in light of all of these factors, while keeping in mind that “the polestar consideration in child custody cases is the best interest and welfare of the child.” Id. at 1005. The chancellor thoroughly considered all of the Albright factors. Therefore, as we will discuss below, we find no error in the chancellor’s finding that it is in the best interest of the children that their primary custody remain with Joel.

Age, Health, and Sex of the Children

¶ 10. The chancellor found that this factor favored neither party. Christina argues that this factor should have weighed in her favor, and she points out that Hughes has been accused of abuse, but he has “never been arrested nor charged with any abuse toward either one of these children — or any child for that matter.” It is Christina’s contention that there is no proof that either she or Hughes has harmed the children in any way, because the children have never had to see a psychologist or undergo any type of psychological testing.

¶ 11. Christina also argues that this factor should have weighed in her favor because the children are young. Although Christina acknowledges that the tender years doctrine has been weakened by Al-bright, she still argues that she should have been awarded custody of the children. In Albright, 437 So.2d at 1005, the court stated: “Age should carry no greater weight than other factors to be considered.” In Lee v. Lee, 798 So.2d 1284, 1289(¶ 17) (Miss.2001), the Mississippi Supreme Court stated: “the age and sex of a child are merely factors to be considered under Albright, and this Court has significantly weakened the once strong presumption that a mother is generally best suited to raise a young child.” Furthermore, in Torrence v. Moore, 455 So.2d 778, 780 (Miss.1984) (citing Duncan v. Duncan, 119 Miss. 271, 80 So. 697 (1919)), in discussing the tender years doctrine, the Mississippi Supreme Court stated that “a child of 7 [years of age] has been held by this Court to be long past the age prior to which it [sic] requires attention of such a character from the mother.” Presently Abbey is eight years old and Joel, Jr. is six; thus the tender years doctrine is clearly inapplicable to Abbey, and presumably inapplicable to Joel, Jr., as well, since at age seven a child is long past the age that the child requires the special attention of the mother.

Continuity of Care

¶ 12. The chancellor found that this factor did not favor either party. The chancellor also found that the parties shared in the care of the children prior to their separation, although he noted that Joel’s mother provided considerable assistance. Christina contends that she took care of the children a great deal of time, as she did not work outside the home immediately following the birth of the children. However, Christina testified that she received assistance from her grandparents, with whom she was living at the time, and from Joel’s parents, because she was still in high school and working part-time. She also testified that Joel helped with Abbey at night, so that she would be rested for school the next day.

¶ 13. In the fall of 1999, Christina was working full-time as a deputy clerk at the Biloxi courthouse, and Joel was working as a volunteer with the D’Iberville Fire Department, in addition to other part-time employment. Christina argues that the testimony reveals that Joel worked long shifts at the fire department and at his part-time jobs, and that he preferred to spend his leisure time hunting, rather than caring for Abbey. Christina submits that while Joel was working long hours and spending his leisure time hunting, Abbey was being cared for by his mother, Kathy, and by Christina’s grandparents.

¶ 14. Following Joel, Jr.’s birth, Christina began working four nights a week, from four p.m. to midnight, as a cocktail waitress at a casino. Christina testified that Kathy, not Joel, would often keep the children when she had to work, even though Joel did not. However, she added that Joel would usually go to his mother’s house on these occasions. Because the testimony indicates that both Christina and Joel cared for the children while receiving assistance from family members, we can find no error in the chancellor’s ruling that this factor did not favor either party.

Parenting Skills and Willingness and Capacity to Provide Primary Care

¶ 15. Focusing on Christina’s past disregard of court orders which prohibited Hughes from having contact with the children, the chancellor found that this factor weighed in favor of Joel. The chancellor pointed out that Hughes, “a man 11 years older than Christina and twice divorced, has been accused by each of his ex-wives of child sexual molestation. He has also been accused of inflicting physical violence upon every woman he has been romantically involved with, including Christina.” The chancellor also noted an instance where Christina demonstrated questionable parenting skills by instructing the children not to tell anyone that Joel, Jr. was injured, while riding on an all-terrain vehicle with Hughes and Hughes’ son from a previous marriage, during a period when there was to be no contact between Hughes and the children.

¶ 16. In reaching his decision, the chancellor also relied on the report of the guardian ad litem:

Given all of the information at hand, this GAL concludes that substantial evidence supports a finding that sufficient risk exists to order restricted contact between Don Hughes and the children. While I believe the evidence is sufficient to prohibit contact, I do not have any reason to believe that such an order would be honored by Christina or her family. Therefore, it is the recommendation of this GAL that the Court restrict contact between Don and the children as follows: 1) the children shall never, under any circumstances, be left alone with Don Hughes; 2) Christina shall be prohibited from allowing Don Hughes to administer any form of punishment to or hitting the children in any way; 3) Don Hughes and Christina shall enter and complete an anger management course within six months; and 4) Don Hughes and Christina shall engage in and complete a course of counseling to address the issues raised by the prior psychological evaluations.

We find that there is substantial evidence supporting the chancellor’s finding that this factor favors Joel.

Employment

¶ 17. The chancellor found this factor favored Joel. The chancellor noted that Joel had maintained stable employment, with the Biloxi Fire Department since the marriage, whereas Christina had worked sporadically, and had not maintained full-time or steady employment. Christina contends that this factor weighs in her favor because the chancellor criticized her for having several jobs, while ignoring Joel’s job history. We find that the record indicates that Christina and Joel have each had several jobs; however, at the time of the hearing Joel was maintaining stable employment, while Christina was not.

¶ 18. In J.P.M. v. T.D.M., 932 So.2d 760, 775(¶ 45) (Miss.2006), the Mississippi Supreme Court affirmed a chancellor’s decision that this factor weighed in favor of the husband, who had maintained steady employment for over three years, stating, “[w]hile the evidence may not have shown that [the mother] was without any employment for months at a time, the testimony ... does show that [the mother] held jobs sporadically, often on a seasonal basis only, and that she had gone through periods where she had no income at all.” The court further stated that “[t]he chancellor heard this testimony and determined that Tom’s work situation was more stable than that of Jane, who as of the date of the final hearing, had been in her current job less than three months.” Id.

¶ 19. Christina, who was employed by Hughes at the time of the hearing, also contends that her work schedule is “far more conducive to parenting.” She argues that Joel’s duties as a fireman impede his ability to spend time with the children. Although Christina may have more time to spend with the children, this Court has affirmed a chancellor’s determination that this factor favors a parent with a stable work history over a parent who works sporadically. In Beasley v. Scott, 900 So.2d 1217, 1220-21 (¶ 10) (Miss.Ct.App.2005), this Court affirmed a chancellor’s determination that this factor weighed in favor of a father who was employed by the same company for eleven years, even though he worked twelve-hour shifts for seven days during a fourteen-day period. We agree with the chancellor that Joel has a more stable employment history; thus, we cannot say that the chancellor’s ruling is not supported by the record, simply because Christina’s schedule is more flexible.

Age and Health of Parents

¶ 20. The chancellor found that this factor favored neither party, as both Joel and Christina were in good physical and mental health. We do not find any error in the chancellor’s determination.

Emotional Ties of Parent and Children

¶ 21. The chancellor found that both parents have bonded with the children, and that the children have bonded with them; however, he concluded that this factor “slightly” favored Joel. It is apparent that the guardian ad litem’s account of how the children reacted when they were told that their mother had arrived to pick them up carried considerable weight with the chancellor. In her forty-page report, the guardian ad litem related the incident as follows:

To confirm the children’s reactions to Christina coming to get them, I asked John Mayfield (paternal grandfather) to say that Christina was coming to pick them up. John said, “Your mom is here to pick ya’ll up.” The children both looked around, almost in a panic. They both started crying and begging Kathy, “Can’t we stay here with you.” It was evident that the children did not want to go with their mother for some reason.

In addition, the guardian ad litem provided the following testimony at the hearing:

[GUARDIAN AD LITEM]: I had the first — the chance to firsthand observe the childrens’ reaction when they thought their mother was coming to pick them up. And, judge, I’m going to tell you after dealing with children for a long time, I can’t tell you the reason why, but it wasn’t normal. It was — it was not normal.
THE COURT: What do you mean?
[GUARDIAN AD LITEM]: It was frightening. The little girl—
THE COURT: Tell me what you observed.
[GUARDIAN AD LITEM]: I asked the grandfather to please say, “I think your mom is coming. Here she comes, ya’ll get ready.” And he did it in a very soft, subtle way. And I said, “Yeah,” I said, “let’s go get your stuff ready and I’ll take you outside.” They looked at each other and they looked around and said, “We don’t want to go. Please don’t make us go, we don’t want to go.” And a few seconds later they were clinging, crying. The little boy was hiding, did not want to go. “Please don’t make me go. Please, I don’t want to go. Please.”
THE COURT: That’s from the dad’s to the mom’s?
[GUARDIAN AD LITEM]: Yes. And I’m going to tell you that that is not normal. I’m not going to sit here and tell you or say, Christina that — what the reason for that is, but it’s not normal. And given the other things that I’ve picked up along the way it’s frightening to me.

¶ 22. In light of the report and testimony of the guardian ad litem, we find no error in the chancellor’s determination.

Moral Fitness of Parents

¶ 23. The chancellor found that this factor favored Joel:

Christina admits that she has, and continues to engage in adulterous activity, refuses to abide by the Orders of the Court in that she has continued to have her children in the presence of Don Hughes, and has exhibited poor life choices. Christina has involved her children in her adulterous activity, having always told them of the situation up to, and including, the birth of her last child fathered by Don Hughes.

¶ 24. In Bower v. Bower, 758 So.2d 405, 408-09(¶ 8) (Miss.2000), the Mississippi Supreme Court affirmed a chancellor’s decision awarding custody to a father when the mother ignored his orders. The chancellor held:

After the court entered its temporary order prohibiting Cindy from staying overnight with a man, she willing disobeyed the court’s order by spending the night with Johnny Harris and this defiant act took place even though Cindy knew this court would view her contemptuous behavior unfavorably when the decision to award custody was made. This deliberate violation of a court order demonstrates her unwillingness to parent; choices to engage in illicit relationships ... instead of spending time with her children clearly demonstrates her unwillingness to make the choice of her children over her hedonist inclinations. Id

(emphasis added). There is no dispute that Christina wilfully violated the court’s no-contact order between the children and Hughes.

¶ 25. Further, the Mississippi Supreme Court has clearly stated that, “despite the criminal nature of these acts, cohabitation is relevant only to the extent it can be shown to affect the child adversely.” Id. at (¶ 30) (citing Cheek v. Ricker, 431 So.2d 1139, 1144 (Miss.1983)). Thus, Christina’s cohabitation with Hughes is particularly relevant in light of the findings of the guardian ad litem. As previously stated, the record reflects that the chancellor issued a temporary order in response to the guardian ad litem’s interim report. Apparently the chancellor agreed with the guardian ad litem that the children’s contact with Hughes should be restricted and removed the children from Christina’s primary care. Based on the evidence presented, we agree that substantial evidence exists to support the chancellor’s determination, as Christina continued to allow the children to be in the presence of Hughes in clear violation of the chancellor’s orders.

¶ 26. Christina also argues that it is inconceivable that Joel was not having sexual relations with his present girlfriend, Tally Walters, who he admits has stayed at his home overnight. It is Christina’s contention that there is a double-standard concerning her relationship with Hughes and Joel’s relationship with Walters. We note that Joel testified that the children were not present when Walters spent the night, and we have found nothing in the record which indicates that Joel violated any of the court’s orders, unlike Christina who admits to doing so. Furthermore, the chancellor’s statement that “Joel has a female companion, but there is no evidence that there has been cohabitation or any other inappropriate activity in the presence of the children” refutes Christina’s argument that the chancellor applied a double standard. We find no error in the chancellor’s determination.

Home, School, and Community Record of Children

¶ 27. The chancellor found that this factor favored Joel. After their separation, Christina left the marital home, and Joel has continued to reside there. Additionally, the marital home is the only home that the children have ever known, a home in which they presently reside with Joel. We agree with the chancellor that the children are too young to have established a community record. Therefore, we find no error in the chancellor’s determination.

Preference of the Child

¶ 28. The chancellor found that this factor favored neither party, concluding that the children were not old enough to state a preference. Mississippi Code Annotated section 93-ll-65(l)(a) (Supp.2006) provides in part:

[I]f the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child.

When the final judgment was entered Abbey was six years old, and Joel Jr. was four years old. Therefore, we find no error in the chancellor’s determination that their age precluded them from stating a preference.

Stability of Home and Employment of Each Parent

¶ 29. The chancellor found this factor weighed in Joel’s favor, because he had continuously lived in the marital home. The chancellor also took into consideration that Joel’s home is very close to his parents’ home. The chancellor pointed out that since Christina and Joel separated, she has lived in an apartment with her grandparents, a friend, and Hughes. On these facts, we find no error in the chancellor’s determination. As previously stated, we agree with the chancellor that Joel’s employment history is considerably more stable than Christina’s. Thus, we cannot find that the chancellor’s determination is not supported by substantial evidence.

Other Factors Relevant to the Parent-Child Relationship

¶ 30. The chancellor addressed several factors which support his decision to award Joel primary physical custody of the children: (1) Christina’s disregard for the court’s orders; (2) Christina’s cohabitation with Hughes and her giving birth to his child out-of-wedlock; (3) Christina’s refusal to acknowledge Hughes’ past issues with domestic abuse toward his previous wives, children from previous marriages, and Christina herself, and (4) the accusations of child molestation of one of his children and corporal punishment of Christina’s children, resulting in bruises to the children.

¶ 31. Christina argues that the chancellor placed too much emphasis on Hughes in granting custody to Joel. She cites several cases to support her contention that, in doing so, the chancellor committed reversible error. In her brief, Christina states, “[t]he appellate courts will reverse a chancellor when entirely too much emphasis [is placed] on one of the Albright factors.... ” We agree that a chancellor should not give any one factor undue weight in making a custody determination; however, we do not find that the chancellor in this case committed such error. The chancellor was aware that Christina planned to marry Hughes when her divorce from Joel became final; thus, it is only logical to conclude that the children would spend a considerable amount of time around Hughes, had Christina been granted primary custody.

¶ 32. We also point out that the guardian ad litem, concluded that Christina had chosen to ignore Hughes’ pattern of domestic abuse. The guardian ad litem found that “Christina and her family has [sic] remained steadfast in their belief ‘in’ Don Hughes and their denial of all the various allegations against him. Christina blows off her own encounter with Don’s violent side by stating that she is a ‘drama queen.’ ”

¶33. When taking all of the Albright factors into consideration, we agree with the chancellor that it is in the best interest of the children to have their custody reposing with Joel, rather than with Christina. This issue has no merit, as we find nothing in the record which indicates that the chancellor failed to properly evaluate all of the Albright factors in making his determination.

2. Psychological Report

¶ 34. Christina next argues that the chancellor erred in allowing into evidence a psychological report which was conducted by Dr. Pam Cutrer during Hughes’ divorce proceedings from his previous wife. On direct examination by Christina’s attorney, Hughes testified that Dr. Cutrer prepared a summary report of his psychological evaluation. On recross-examination, Joel’s attorney requested that Hughes read a portion of the report, and Christina’s attorney objected. Joel’s attorney argued that the report had been brought up by Christina’s attorney on direct and that the door had thus been opened. The court overruled the objection and allowed Joel’s attorney to continue to cross-examine Hughes regarding specific passages in the report. After Joel’s attorney had completed his recross-examination of Hughes, Christina’s attorney had Hughes to read a passage from the report. However, later on in the proceeding, the court inquired as to whether Christina’s attorney wanted the entire report admitted into evidence:

THE COURT: Do you want to put this psychological [report] into evidence?
[ATTORNEY FOR CHRISTINA]: That’s fine.
[ATTORNEY FOR JOEL]: No, I absolutely don’t object to it.

While Christina’s attorney initially objected to admission of the report, the record reveals that she apparently abandoned that position, because her subsequent assent to the admission of the report was not qualified. Therefore, we find no merit to this allegation of error.

3. Excited Utterance

¶ 35. Christina contends that the chancellor incorrectly admitted into evidence a hearsay statement made to Kathy by Joel Jr. The chancellor classified the statement as an excited utterance, an exception to the hearsay rule. M.R.E. 803(2). First, we note that this issue is waived, as Christina’s attorney failed to make a contemporaneous objection. Christina’s attorney did not object until after Kathy provided a complete account of what she alleged to have taken place:

Q. Have you ever said discouraging remarks—
A. Never.
Q. —about Mr. Mayfield or Mr. Hughes around these children?
A. Never. Never. The only thing I have said is I said, “Abby [sic] — ” because she would tell me — because the little man — we call [Joel Jr.] little man, he would wake up one night, he woke up screaming, and I said, “What’s the matter, what’s the matter?” And he said, “Mr. Don, Mr. Don.” I said, “No, this is maw-maw. What’s the matter?” And he said, “Mr. Don hit me.” And I said, “What do you mean he hit you?” And he said, “He does like this to my head.” So the next morning I said, “Abby [sic],” I said, “Did Mr. Don hit — ”
[ATTORNEY FOR CHRISTINA]: Your Honor, I’m going to object to the hearsay from the children.

¶ 36. In Smith v. State, 797 So.2d 854, 856(¶ 7) (Miss.2001) (citing Walker v. State, 671 So.2d 581, 597 (Miss.1995)), the Mississippi Supreme Court stated, “[w]e have repeatedly held that if no contemporaneous objection is made, the error, if any, is waived.” “The rule governing the time of objection to evidence is that it must be made as soon as it appears that the evidence is objectionable, or as soon as it could reasonably have been known to the objecting party, unless some special reason makes a postponement desirable for him which is not unfair to the proponent of the evidence.” Sumner v. State, 316 So.2d 926, 927 (Miss.1975) (citing Williams v. State, 171 Miss. 324, 157 So. 717 (1934)). Therefore, this issue is procedurally barred.

¶ 37. Procedural bar notwithstanding, we note that the chancellor erred in admitting Joel Jr.’s statements as excited utterances. An excited utterance is “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” M.R.E. 803(2). Because of the context in which this statement was made, this Court cannot accept that it qualifies as an excited utterance. Additionally, Joel Jr. made accusations against Hughes only after being questioned by Kathy. Therefore, we find that this is not an excited utterance as contemplated by Rule 803(2) and that the chancellor erred in admitting it. However, we find that this error was harmless, as there is more than an ample amount of properly-admitted evidence to support each of the findings made by the chancellor.

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

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

      . Christina has since married Hughes, and they have a child that was born during the period that Christina and Joel were separated.

      . Although accused, Hughes has not been convicted of domestic violence or child molestation.

      . Hughes was called as an adverse witness by Joel’s attorney and initially testified on cross-examination as an adverse witness.


author: CARLTON, J.,

text:
    Carlos MILES a/k/a Carlos Rodiuez Miles a/k/a Carlos Rodriguez Miles a/k/a “C-Low”, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-KA-00723-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.
    Jonathan Michael Farris, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. On May 31, 2005, Carlos Miles was convicted by a jury in the Circuit Court of Forrest County for the crime of shooting into a dwelling house. Miles appeals to this Court and asserts that the trial court erred in refusing to grant a peremptory instruction, and in overruling his motion for directed verdict and motion for judgment notwithstanding the verdict (JNOV) and/or new trial. Finding no error, we affirm.

FACTS

¶ 2. The incident in this ease arose out of a relationship between Miles and Carrissa Martin. The two were involved in a short-lived intimate relationship which ultimately came to an end during the first week of July 2004. On the evening of July 9, 2004, Martin had four female guests spend the night at her home in Hattiesburg. During the early morning hours of July 10, 2004, at approximately 4:30 a.m., Miles, after a night on the town, arrived at Martin’s residence and began loudly knocking at the front door. Martin and her guests awoke to Miles’ beating on the door, yelling, and cursing to be let in. Martin refused to answer the door and Miles proceeded to the side, kitchen door of the house, whereupon, he began kicking the door and demanding to be let in the house. Miles then returned to the front door of the home and beat on the door so hard as to cause the blinds to fall off the window. Miles looked through the window and saw Martin and the other women. At this point, Martin replaced the blinds and Miles became angry, pulled out a pistol, fired one or more shots, and ran.

¶ 3. The police were called and, upon their arrival, Martin informed them of the events that had recently transpired. Martin stated that she was about to go outside and talk to Miles when she heard four shots. She further stated that one shot came through a window of her house, identified by Martin as the window left of the front door as if viewing the home from the outside facing the front of the house. The police were unable to find any shell casings or broken glass; however, Martin directed the police to the hole in the window. Detective Trey Rudder traced the path of the bullet through the window, through one interior wall, and into a bedroom, where it came to rest deeply embedded in the wall. The projectile was never recovered from the wall.

¶ 4. Miles was apprehended by the police at his mother’s apartment at approximately 5:00 a.m. where he was found in a back bedroom hiding under bed sheets. Miles subsequently gave a written statement to Detective Rudder in which he admitted that he went to Martin’s house on the night in question. Miles admitted in his statement that he saw Martin with another woman, became angry, and fired a weapon. However, he claimed that he fired the gun into the air rather than into the house.

¶ 5. On May 31, 2005, Miles was convicted by jury trial in the Forrest County Circuit Court of the crime of shooting into a dwelling in violation of Mississippi Code Annotated section 97-37-29 (Rev.2000). He was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections. Aggrieved by the trial court’s decision, Miles appeals.

DISCUSSION

■ ¶ 6. “[A] motion for J.N.O.V., peremptory instruction, and directed verdict all challenge the legal sufficiency of the evidence.” Shumpert v. State, 935 So.2d 962, 966(8) (Miss.2006) (citation omitted). “When reviewing the sufficiency of the evidence, this Court must ask 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. (citation omitted).

¶ 7. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, 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.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005) (citation omitted). We sit as a thirteenth juror, viewing the evidence in the light most favorable to the verdict. Id.

¶ 8. Miles argues that the trial court erred in refusing to grant a peremptory instruction and in denying his motions for a directed verdict and JNOV and/or new trial. He claims that there was insufficient evidence to support his conviction for shooting into a dwelling house. In support of his argument, Miles points out that no witnesses actually saw Miles point the gun at the house and fire a projectile into it. He argues that Martin, Detective Rudder, and Verrienia Brent, one of Martin’s overnight guests on the night in question, all testified that they did not see Miles point the gun at the house when he fired it. Additionally, Miles argues that no shell casings were found at the scene and that no bullet was recovered from the walls of Martin’s home to prove that the projectile could be attributed to Miles’ gun. In essence, Miles contends that there was insufficient evidence from which the jury could infer that a projectile fired from his weapon actually struck and entered the home of Martin on the night in question.

¶ 9. We find that the evidence strongly indicates that a projectile fired by Miles on the night in question, entered the dwelling house of Martin. The State charged and was required to prove that Miles did “willfully and unlawfully shoot or discharge [a firearm] into any dwelling house.... ” Miss.Code Ann. § 97-37-29 (Rev.2006). Miles’ statement establishes that he was present at Martin’s home and that he fired at least one bullet from a weapon while standing at or near the front door of the house. Martin and Brent, both testified that they immediately recognized Miles’ voice when he began yelling. Both women also stated that, when the blinds fell off the window, they clearly saw Miles from a close distance and observed that he was alone. Martin and Brent further testified that just prior to the shooting, Miles shouted that he “was going to shoot every [person] in the house.” (explicit language omitted).

¶ 10. Martin testified that she heard four shots and that “one came straight through [her] window and went through [her] walls.” Martin also testified that the holes in her home were not present prior to the shooting. Brent testified that she had been at Martin’s house all day before the shooting occurred and that there were no holes in the window or the walls of the house before the gunshots were fired.

¶ 11. After considering the evidence in the light most favorable to the verdict, giving the prosecution the benefit of all favorable inferences that may reasonably be drawn therefrom, we find that there is sufficient evidence to support the jury’s verdict of guilty. We find that the verdict rendered is not against the overwhelming weight of the evidence and that allowing it to stand will not sanction an unconscionable injustice. Accordingly, we affirm.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY OF CONVICTION OF SHOOTING INTO A DWELLING AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAYMENT OF A $1,000 FINE AND A $100 ASSESSMENT TO THE MISSISSIPPI CRIME VICTIM’S COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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