author: SMITH, Chief Justice,

text:
    The ESTATE OF Ladell BECKLEY, Deceased. Clarence Beckley, as Executor v. John Beckley.
    No. 2005-CT-00580-SCT.
    Supreme Court of Mississippi.
    June 14, 2007.

      Rhett R. Russell, Tupelo, D. Kirk Tharp, for Appellant.
    Gene Barton, Pontotoc, for Appellee.
   ON WRIT OF CERTIORARI

SMITH, Chief Justice,

for the Court.

¶ 1. Appellant Clarence Beckley, the executor of the estate of Ladell Beckley, appealed from the decision of the Chancery Court of Pontotoc County awarding approximately $30,000 dollars plus interest to Ladell’s brother, John Beckley. The Court of Appeals, in a five-five split decision, affirmed the decision of the chancery court. Estate of Beckley v. Beckley, 961 So.2d 712, 2006 WL 2256951, 2006 Miss. App. LEXIS 575 (Miss.Ct.App.2006). The issue presented by the Appellant in his petition for writ of certiorari is whether the chancellor erred in awarding funds to John Beckley, instead of to the estate. We find that the dissent authored by Judge Chandler, and joined by Judges Southwick, Irving, Griffin and Roberts reaches the correct result. We reverse the decision of the chancery court and the Court of Appeals and render judgment in favor of the estate for approximately $30,000 which was wrongfully withdrawn from the certificate of deposit, plus the accumulated interest.

FACTS AND PROCEDURAL HISTORY

¶ 2. The Court of Appeals stated the facts as follows:

Ladell Beckley, a native Mississippian, returned to this state in the early nineteen-eighties to commence his retirement. Ladell moved to Pontotoc, Mississippi and lived near his nephew, Larry Satterwhite. In the late nineties, Ladell’s health began to fail, though he remained of sound mind. Satterwhite began caring for Ladell by tending to his health needs, providing his transportation, and performing errands for him.
While away from Mississippi, Ladell had fathered ten children. Ladell also had a younger brother, John Beckley, who lived in Joliet, Illinois at all times relevant to these proceedings. In September 2000, Ladell met with his attorney, Rhett Russell, and executed a will. In the will, Ladell bequeathed one hundred dollars each to two individuals unconcerned with this litigation, and left the residue of his property to five of his children, in equal shares. Ladell had saved approximately seventy thousand dollars which he had accumulated from his efforts during his lifetime. On October 18, 2000, Ladell purchased a certificate of deposit from BancorpSouth bank in the amount of $28,699.79. This certificate of deposit was titled jointly in the name of “Ladell Beckley or John Beck-ley.” Under the heading “Account Ownership,” the certificate of deposit indicated that Ladell had requested a joint account with survivorship.
On March 8, 2001, Ladell purchased another certificate of deposit, this one in the approximate amount of $29,000. He titled this certifícate of deposit in the name of himself or Satterwhite. In October 2001, Ladell’s health worsened, and Satterwhite moved in with Ladell to provide more continuous care. On October 18, 2001, Ladell bought a third certificate of deposit in the amount of $10,000 and titled it in the name of himself or Satterwhite.
In January 2002, Ladell’s health declined further and he was admitted to a nursing home. On January 8, 2002, Ladell executed a durable power of attorney appointing Satterwhite as his attorney-in-fact. On January 14, 2002, Satterwhite, wielding the power of attorney, withdrew the funds from the certificate of deposit titled to Ladell Beckley or John Beckley and deposited these funds into another certificate of deposit in the name of Larry Satter-white or John Beckley. On the same day, Satterwhite also withdrew the funds from the two certificates of deposit that he jointly held with Ladell. Satterwhite used a portion of these funds to pay the balance of a loan of Ladell’s in the amount of $2,769.52. With the remainder of the funds, Sat-terwhite purchased, two certificates of deposit in the amounts of $27,136.85 and $10,066.30. These certificates of deposit were titled in Satterwhite’s name only.
Ladell’s health having improved, he left the nursing home sometime in January or February 2002. Ladell’s son, Clarence, visited him during the month of February. On February 4, 2002, Clarence drove Ladell to attorney Russell’s office. Russell testified that La-dell was frantic because his money had been taken from the bank without his permission. At Ladell’s request, Russell drafted a complaint against Satterwhite for the return of the funds. In the complaint, Ladell alleged that he was the exclusive owner of the certificates of deposit and that the certificates had been titled alternatively in the name of John or Satterwhite “for survivorship purposes only.” Ladell alleged that Sat-terwhite had a fiduciary and confidential relationship with him and had presented him with the durable power of attorney at a time when Ladell could not read or understand the instrument. Ladell alleged that he had been unduly induced by Satterwhite to execute the instrument; in the alternative, Ladell stated that he hereby revoked the power of attorney. Ladell alleged that Satter-white had withdrawn Ladell’s funds from BancorpSouth without his permission and also had taken some of his personal property. Ladell prayed for a preliminary injunction against Satter-white’s disposition of the funds, replevin of the personal property, an accounting, damages, and costs.
During this visit with Russell, Ladell also executed a second will. In this will, Ladell devised the residue of his estate in equal shares to his surviving children. On February 5, Ladell returned to Russell’s office and signed the complaint. The complaint was filed on February 7, 2002, initiating the instant lawsuit. La-dell passed away on March 1,, 2002, and his will was admitted to probate on March 4, 2002. Clarence was named the executor of Ladell’s estate.
In mid-March, Clarence, John, Satter-white and Russell met at Russell’s office to discuss the proper disposition of the funds from the certificates of deposit. They agreed that Satterwhite would withdraw the funds from the certificates of deposit and give them to Russell to be held in escrow pending the outcome of this litigation.
On March 4, 2002, Clarence filed a motion, in his capacity as Executor of the Estate of Ladell Beckley, requesting that he be substituted as a party/plaintiff. On May 2, 2002, John filed a motion to intervene asserting his interest in the funds from the certificate of deposit that bore his name prior to Satterwhite’s redemption of that certificate of deposit. The chancery court granted both of the motions, and a trial was held on November 23-24, 2004.
On February 24, 2005, the chancellor entered an amended judgment finding that there was a presumption that Sat-terwhite had exercised undue influence over Ladell. The chancellor also found that the presumption of undue influence was not rebutted. Consequently, the chancellor determined that the funds should be put back into the certificates of deposit as they were before Satter-white used the power of attorney. Furthermore, the chancellor found that there was no evidence that John exercised undue influence. The chancellor determined that if the certificates of deposit remained unchanged on Ladell’s death, John, as survivor, was entitled to the funds in his certificates of deposit. Therefore, the chancellor ordered that Russell deliver the proceeds of the October 18, 2000 certificate of deposit ($30,-000) to John.

Beckley, 961 So.2d at 714-15, 2006 Miss. App. LEXIS 575 at 2-8. On August 8, 2006, the Court of Appeals affirmed the decision of the chancery court, and denied the Appellant’s Motion for Rehearing on December 13, 2006.

DISCUSSION

I. WHETHER THE CHANCERY COURT ERRED IN AWARDING THE FUNDS TO JOHN BECK-LEY INSTEAD OF THE ESTATE.

113. On October 18, 2000, Ladell deposited $28,699.79 of his life savings in a certificate of deposit, which he titled in the names of himself and John Beckley. On February 7, 2002, shortly after discovering that on January 14, 2002, Satterwhite had used a power of attorney to withdraw all of the funds from the certificate of deposit, Ladell filed a sworn complaint against Sat-terwhite for the return of the funds. In his complaint, Ladell stated that he was the exclusive owner of the certificate of deposit even though he titled the account alternatively in the name of John “for sur-vivorship purposes only.” Ladell also claimed that the power of attorney was the product of undue influence by Satterwhite.

¶ 4. However, on March 2, 2002, Ladell died, and his will was admitted to probate on March 4, 2004. On June 10, 2002, Clarence Beckley, the executor of Ladell’s estate, was substituted as the party-plaintiff in the action pursuant to Miss.Code Ann. § 91-7-237 (Rev.2004), which states that “[w]hen either of the parties to any personal action shall die before final judgment, the executor or administrator of such deceased party may prosecute or defend such action, and the court shall render judgment for or against the executor or administrator.” Additionally, Miss. Code Ann. § 91-7-233 permits executors to commence and prosecute any personal action at law or in equity, which the testator might have commenced and prosecuted.

¶ 5. The term “personal action” as used in these sections means an action for recovery of personal property, for breach of contract, or for injury to person or property. McNeely v. City of Natchez, 148 Miss. 268, 274, 114 So. 484, 486 (1927). This Court has long recognized that a cause of action accrues when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested. McMillan v. Puckett, 678 So.2d 652, 654 (Miss.1996). This Court has also held that actions to recover personal property, to enforce a contract, or to recover damages for breach of contract or for injury to person or property survive the death of the decedent. J.H. Leavenworth & Son v. Hunter, 150 Miss. 245, 116 So. 593 (1928). Accordingly, Ladell’s action against Sat-terwhite accrued during his lifetime and survived his death. Upon the executor’s substitution as party-plaintiff, the executor effectively stepped into the shoes of Ladell in prosecuting the action pursuant to Miss. Code Ann. § 91-7-237. Under these statutes, the estate could then recover the funds that Ladell might have recovered had he lived to final judgment.

¶ 6. Additionally, Ladell executed a new will while at his lawyer’s office preparing the lawsuit to recover the $30,000. Ladell left his entire estate to his children under the terms of the will. All of Ladell’s children testified that their father desired that the children inherit his entire estate. However, no testimony was presented that Ladell intended to return the money to the joint account or that he desired his brother to obtain any of his proceeds from the lawsuit. Additionally, in the complaint that Ladell filed against Satterwhite, La-dell’s prayer was for “judgment of and from [Satterwhite] for his damages including, but not limited to, loss of possession and title of property....” Nowhere in his pleadings did Ladell ask the chancellor to restore the closed certificate of deposit account. Even the chancellor’s amended judgment states that “[Ladell] sought to have the proceeds of these certificates returned to him.” (Emphasis added). All of this evidences Ladell’s intent as to both the $30,000 stolen by Satterwhite which Ladell wanted returned to him and his intent as to his entire estate. We find that Ladell’s sworn complaint, his will and the testimony of his children all indicate that his intent was for the children to have the funds, not his brother.

¶ 7. Furthermore, in his sworn complaint, Ladell claimed that the power of attorney which resulted in Satterwhite’s stealing the funds was the result of undue influence. In the amended judgment, the chancellor found Ladell’s claim of undue influence to be meritorious. The chancellor held that a confidential relationship had existed between Ladell and Satterwhite, which gave rise to a presumption of undue influence. The chancellor then found that the presumption had not been rebutted. It is important to note that this finding was not challenged on appeal. Additionally, in John’s response to the petition for writ of certiorari, he does not dispute or challenge the chancellor’s finding that all actions conducted by Satterwhite -were void and that the actions of obtaining and using the power of attorney were illegal and void. Based on-the chancellor’s findings, had Ladell been alive at the time of the final judgment, the appropriate remedy would have been to award him the approximately $ 30,000 plus interest from Satterwhite. However, the chancellor held that, because the power of attorney was invalid, the certificate of deposit continued unchanged and equitably recreated the certificate, of deposit as of January 14, 2002. The chancellor further held that the funds derived from the certificate of deposit became vested in John as the surviving joint tenant at Ladell’s death on March 2, 2002.

¶ 8. This Court has held that while the powers of a chancellor are “as broad as equity and justice require,” those powers are not without limitation. R.N. Turnbow Oil Invs. v. McIntosh, 873 So.2d 960, 963 (Miss.2004). We stated in McIntosh that “[w]hile a chancellor’s remedial powers may be ‘marked by flexibility’ and ‘plasticity,’ they are not unbridled powers. Courts of equity have all remedial powers necessary to the particular case, except those that are expressly forbidden by law.” Id. We find that the chancellor exceeded his broad remedial powers in recreating the certificate of deposit, as this remedy ignores the statutory right of the executor of the estate under Miss.Code Ann. § 91-7-237 to prosecute Ladell’s lawsuit against Satterwhite and collect the proceeds from a judgment in his favor.

¶ 9. When Satterwhite wrongfully withdrew the funds from the certificate of deposit, a cause of action for the return of the funds accrued to Ladell. Ladell himself commenced this action before his death, and this lawsuit was open at the time of Ladell’s death. Upon the executor’s substitution as party-plaintiff pursuant to Miss.Code Ann. § 91-7-237, the executor of Ladell’s estate effectively stepped into the shoes of Ladell in prosecuting this action and was entitled to the same remedy due Ladell had he been alive at the time of the judgment. Therefore, the appropriate remedy was to return the proceeds of the lawsuit, the approximate amount of $30,000 plus interest, to the estate.

CONCLUSION

¶ 10. Based on the foregoing reasons, we reverse the judgment of the chancery court and the Court of Appeals and render judgment in favor of the estate.

¶ 11. REVERSED AND RENDERED.

WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR.


source: Caselaw Access Project

author: ISHEE, J., CHANDLER, J.,

license: Public Domain

text:
    The ESTATE OF Ladell BECKLEY, Deceased. Clarence Beckley, As Executor, Appellant v. John Beckley, Appellee.
    No. 2005-CA-00580-COA.
    Court of Appeals of Mississippi.
    Aug. 8, 2006.
    Rehearing Denied Jan. 16, 2007.

      Rhett R. Russell, Tupelo, D. Kirk Tharp, attorneys for appellant.
    Gene Barton, Pontotoc, attorney for ap-pellee.
   ISHEE, J.,

for the Court.

¶ 1. Clarence Beckley, the executor of the estate of Ladell Beckley, appeals from the decision of the Chancery Court of Pontotoc County awarding approximately thirty thousand dollars plus interest to Ladell’s brother, John Beckley. Clarence argues that the chancellor erred (1) by finding that the funds passed upon La-dell’s death to John as co-titleholder of a previously redeemed certificate of deposit in which the funds were once invested, and (2) by implicitly invalidating the durable power of attorney used by Ladell’s nephew, Larry Satterwhite, to redeem the certificate of deposit and implicitly rescinding the redemption transaction where the chancellor never expressly declared the power of attorney to be invalid and never expressly rescinded the redemption transaction.

¶2. We find that the chancellor’s fact-findings were supported by substantial evidence and that the chancellor correctly applied the law. Therefore, we affirm.

FACTS

¶ 3. Ladell Beckley, a native Mississippian, returned to this state in the early nineteen-eighties to commence his retirement. Ladell moved to Pontotoc, Mississippi and lived near his nephew, Larry Satterwhite. In the late nineties, Ladell’s health began to fail, though he remained of sound mind. Satterwhite began caring for Ladell by tending to his health needs, providing his transportation, and performing errands for him.

¶4. While away from Mississippi, La-dell had fathered ten children. Ladell also had a younger brother, John Beckley, who lived in Joliet, Illinois at all times relevant to these proceedings. In September 2000, Ladell met with his attorney, Rhett Russell, and executed a will. In the will, Ladell bequeathed one hundred dollars each to two individuals unconcerned with this litigation, and left the residue of his property to five of his children, in equal shares. Ladell had saved approximately seventy thousand dollars which he had accumulated from his efforts during his lifetime. On October 18, 2000, Ladell purchased a certifícate of deposit from BancorpSouth bank in the amount of $28,699.79. This certificate of deposit was titled jointly in the name of “Ladell Beck-ley or John Beckley.” Under the heading “Account Ownership,” the certificate of deposit indicated that Ladell had requested a joint account with survivorship.

¶ 5. On March 8, 2001, Ladell purchased another certificate of deposit, this one in the approximate amount of $29,000. He titled this certificate of deposit in the name of himself or Satterwhite. In October 2001, Ladell’s health worsened, and Satter-white moved in with Ladell to provide more continuous care. On October 18, 2001, Ladell bought a third certificate of deposit in the amount of $10,000 and titled it in the name of himself or Satterwhite.

¶ 6. In January 2002, Ladell’s health declined further and he was admitted to a nursing home. On January 8, 2002, Ladell executed a durable power of attorney appointing Satterwhite as his attorney-in-fact. On January 14, 2002, Satterwhite, wielding the power of attorney, withdrew the funds from the certificate of deposit titled to Ladell Beckley or John Beckley and deposited these funds into another certificate of deposit in the name of Larry Satterwhite or John Beckley. On the same day, Satterwhite also withdrew the funds from the two certificates of deposit that he jointly held with Ladell. Satter-white used a portion of these funds to pay the balance of a loan of Ladell’s in the amount of $2,769.52. With the remainder of the funds, Satterwhite purchased two certificates of deposit in the amounts of $27,136.85 and $10,066.30. These certificates of deposit were titled in Satter-white’s name only.

¶ 7. Ladell’s health having improved, he left the nursing home sometime in January or February 2002. Ladell’s son, Clarence, visited him during the month of February. On February 4, 2002, Clarence drove La-dell to attorney Russell’s office. Russell testified that Ladell was frantic because his money had been taken from the bank without his permission. At Ladell’s request, Russell drafted a complaint against Satterwhite for the return of the funds. In the complaint, Ladell alleged that he was the exclusive owner of the certificates of deposit and that the certificates had been titled alternatively in the name of John or Satterwhite “for survivorship purposes only.” Ladell alleged that Satter-white had a fiduciary and confidential relationship with him and had presented him with the durable power of attorney at a time when Ladell could not read or understand the instrument. Ladell alleged that he had been unduly induced by Satter-white to execute the instrument; in the alternative, Ladell stated that he hereby revoked the power of attorney. Ladell alleged that Satterwhite had withdrawn Ladell’s funds from BancorpSouth without his permission and also had taken some of his personal property. Ladell prayed for a preliminary injunction against Satter-white’s disposition of the funds, replevin of the personal property, an accounting, damages, and costs.

¶ 8. During this visit with Russell, Ladell also executed a second will. In this will, Ladell devised the residue of his estate in equal shares to his surviving children. On February 5, Ladell returned to Russell’s office and signed the complaint. The complaint was filed on February 7, 2002, initiating the instant lawsuit. Ladell passed away on March 1, 2002, and his will was admitted to probate on March 4, 2002. Clarence was named the executor of La-dell’s estate.

¶ 9. In mid-March, Clarence, John, Sat-terwhite and Russell met at Russell’s office to discuss the proper disposition of the funds from the certificates of deposit. They agreed that Satterwhite would withdraw the funds from the certificates of deposit and give them to Russell to be held in escrow pending the outcome of this litigation.

¶ 10. On March 4, 2002, Clarence filed a motion, in his capacity as Executor of the Estate of Ladell Beckley, requesting that he be substituted as a party/plaintiff. On May 2, 2002, John filed a motion to intervene asserting his interest in the funds from the certificate of deposit that bore his name prior to Satterwhite’s redemption of that certificate of deposit. The chancery court granted both of the motions, and a trial was held on November 23-24, 2004.

¶ 11. On February 24, 2005, the chancellor entered an amended judgment finding that there was a presumption that Satterwhite had exercised undue influence over Ladell. The chancellor also found that the presumption of undue influence was not rebutted. Consequently, the chancellor determined that the funds should be put back into the certificates of deposit as they were before Satterwhite used the power of attorney. Furthermore, the chancellor found that there was no evidence that John exercised undue influence. The chancellor determined that if the certificates of deposit remained unchanged on Ladell’s death, John, as survivor, was entitled to the funds in his certificates of deposit. Therefore, the chancellor ordered that Russell deliver the proceeds of the October 18, 2000 certificate of deposit ($30,000) to John.

STANDARD OF REVIEW

¶ 12. On appeals from chancery court, we employ a limited standard of review. In re Estate of Carter, 912 So.2d 138, 143(¶ 18) (Miss.2005) (citing Miller v. Pannell, 815 So.2d 1117, 1119(¶ 9) (Miss.2002)). Our standard of review is indeed deferential, as we recognize that a chancellor, being the only one to hear the testimony of witnesses and observe their demean- or, is in the best position to judge their credibility. Id. (citing Culbreath v. Johnson, 427 So.2d 705, 708 (Miss.1983)). Thus, we will not disturb a chancellor’s decision when supported by substantial credible evidence, unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Id. (citing Williams v. Williams, 843 So.2d 720, 722(¶ 10) (Miss.2003)).

ISSUES AND ANALYSIS

I. Whether the lower court erred in adjudicating funds of Ladell to have passed as of his death by survivor-ship to John as a co-titleholder of a previously redeemed certificate of deposit in which at one time such funds had been invested.

¶ 13. Clarence argues that the chancery court erred in finding that the 2000 certificate of deposit vested in John, as survivor, because the certificate of deposit was not a valid negotiable instrument at the time of Ladell’s death, as it was redeemed prior to his death. He further argues that the chancery court’s finding “ignores the fact that Ladell Beckley proceeded to the bank so as to redeem the certificate of deposit and reinvest the funds in question jointly into his name and the names of his children.” Moreover, citing Matter of Estate of Holloway, 515 So.2d 1217, 1223 (Miss.1987), Clarence argues that Ladell never completed an inter vivos gift of the funds in question to John, as Ladell neither intended to make the gift, nor relinquished all dominion and control of the funds. According to Clarence, John failed to prove by “clear and satisfactory proof each and every element requisite to constitute a valid inter vivos gift.”

¶ 14. First, with regard to Ladell’s intent to make an inter vivos gift, we note that the court in In re Estate of Holloway only analyzed whether the requirements of an inter vivos gift had been met because the certificates of deposit in that case bore no survivorship language. Id. at 1223. The Holloway court determined that where a certificate of deposit “bears facial or contractual indication of intended sur-vivorship, this expressed intent will be given effect.” Id. Furthermore, in Madden v. Rhodes, 626 So.2d 608, 616 (Miss.1993), the court found that “[t]he statutes of Mississippi have now abolished the need to prove ‘intent’ in determining ownership of joint accounts.” When a joint account is created, the intent to give ownership of the account to the person(s) named on the account is automatically presumed. Id.

¶ 15. In the case sub judice, the certifí-cate of deposit purchased by Ladell on October 18, 2000, was titled jointly in the name of “Ladell Beckley or John Beckley.” Under the heading “Account Ownership,” Ladell indicated that the certificate of deposit was to be jointly owned with surviv-orship. Given this express indication of survivorship, Clarence’s argument that John had the burden of proving that the requirements of an inter vivos gift had been met is without merit. Pursuant to Mississippi law, at Ladell’s death, John presumptively held title to the funds in the certificate of deposit that bore his name with survivorship, absent a showing of “forgery, fraud, duress, or an unrebutted presumption of undue influence.” Madden, 626 So.2d at 617.

¶ 16. Clarence also asserts that Ladell intended that the funds in question be transferred to Ladell’s children upon his death, as evidenced by the testimony of his children and the provisions of his will. In support of this argument, Clarence cites the testimony of two of Ladell’s children, Kay Terri Ellis and Clarence. Ellis testified that she had a conversation with her father during which he stated his desire to leave his children “something.” Ellis stated that the conversation took place in 2002, but she could not recall what time of year it was or whether the conversation took place on the phone or in person. Clarence testified he drove his father to the bank on the day that he discovered that Satter-white had closed his accounts. He further testified that his father’s reason for going to the bank was to transfer the funds into his children’s names.

¶ 17. In addressing whether parol evidence may be used to determine Ladell’s intent, we turn to the case In Re Estate of Huddleston, 755 So.2d 435, 439(¶ 10) (Miss.Ct.App.1999). In Huddleston, this Court addressed whether funds placed by the decedent into a joint checking account and into certificates of deposit passed according to the joint tenant’s right of survivor-ship or whether the funds became part of the decedent’s estate. The proponents of the will argued that, although Mississippi Code Annotated section 81-5-63 (Rev. 1996) “expresses the presumption of intent of the maker of a jointly-held banking instrument to vest in the survivor, the statute does not negate previous will provisions which conflict with the banking instrument.” Id. at 439(¶ 7). The proponents of the will further argued that the decedent’s history, prior to executing the banking instruments, proved that she intended to divide her money among her children equally.

¶ 18. In Huddleston, this Court followed the general rule that “where a joint tenancy account in a bank is made payable to either depositor or survivor, the account passes to the survivor upon the death of a joint tenant.” Id. at (¶ 10) (quoting Strange v. Strange, 548 So.2d 1323, 1327 (Miss.1989)). The court further stated that “[wjithout doubt, our law allows competent adults to use such will substitutes with effect and thereby avoid probate.” Id. (quoting Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991)). Moreover, because of the common sense premises that “resurrecting the mind of the deceased and deciphering its thoughts four years after the fact is an enterprise fraught with hazard and not just because it is pursued by the self-interested,” the court determined that parol evidence may not be used to impeach an express survivorship clause. Id. at 440(¶ 12) (quoting Cooper, 587 So.2d at 241). Consequently, the Huddleston court found that parol evidence was inadmissible to show the decedent’s intent and that the funds represented by the banking instruments never became a part of the decedent’s estate. Id. at 440(¶ 13).

¶ 19. As in Huddleston, we decline to use the testimony of the self-interested to decipher the mind of the deceased. We find that the express language of the certificate of deposit is the most reliable evidence of Ladell’s intent. Therefore, this issue is without merit.

II. Whether the lower court erred in invalidating the power of attorney obtained by Satterwhite from La-dell and in rescinding the transaction whereby the power of attorney was utilized by Satterwhite to redeem the 2000 certificate of deposit in the face of Ladell as principal under the terms of such power of attorney having neither declared such instrument to be invalid nor rescinded the redemption transaction.

¶ 20. Under this assignment of error, Clarence does not take issue with the chancery court’s finding that Satterwhite obtained the power of attorney from La-dell through undue influence; he admits in his brief to this Court that the chancery court’s finding on this issue was correct. Nonetheless, Clarence asserts that the chancery court did not have the authority to void and set aside the power of attorney. Citing McKinney v. King, 498 So.2d 387, 388 (Miss.1986), Clarence asserts that the power of attorney may have only been set aside by Ladell, as principal, or his estate.

¶ 21. In McKinney, after the decedent was diagnosed with cancer, he executed a will leaving his house to his wife and his daughter from a previous marriage, and he gave his wife use of the house for as long as she resided in it as a widow. Id. The decedent also executed a power of attorney in favor of his wife. Id. After obtaining the power of attorney, the wife executed a warranty deed on the house to herself and the decedent as joint tenants with right of survivorship. Id. The chancery court determined that a confidential relationship existed between the decedent and his wife; consequently, the court cancelled and set aside the warranty deed. Id. The Mississippi Supreme Court affirmed the chancery court’s decision. Id. at 389.

¶ 22. In the case at bar, as a result of finding the existence of a confidential relationship and an unrebutted presumption of undue influence, the court invalidated the power of attorney and set aside Satter-white’s redemption of the 2000 certificate of deposit. The court determined that the redemption was only made possible through the use of undue influence in obtaining the power of attorney. Thus, in McKinney, as in the case sub judice, when the chancery court found that the confidential relationship was violated, the court cancelled and set aside the transaction that was accomplished by using the power of attorney. We see no reason to depart from the logic of McKinney. Therefore, this issue is without merit.

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

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

CHANDLER, J.,

Dissenting:

¶ 24. I respectfully dissent, as I would find that the chancellor exceeded his authority in this case in recreating the certificate of deposit. I believe that the result reached by the chancellor thwarted the statutory right of the estate to prosecute Ladell Beckley’s lawsuit against Larry Satterwhite for return of the funds. See Miss.Code Ann. § 91-7-237 (Rev.2004). I would reverse the decision of the chancellor and render a judgment in favor of the estate for the approximately thirty thousand dollars which Satterwhite wrongfully withdrew from the certificate of deposit, plus the accumulated interest.

¶ 25. As related by the majority, Ladell created the certificate of deposit at issue on October 18, 2000. He deposited $28,699.79 of his life savings in the certificate of deposit and titled the certificate of deposit in the names of himself “or John Beckley.” Language on the certificate of deposit expressed that it was a joint account with survivorship, and not owned as tenants in common. In late January or early February 2002, Ladell went to the bank and discovered that on January 14, 2002, Satterwhite had used a power of attorney to withdraw all of the funds from the certificate of deposit. On February 5, 2002, Ladell swore out a complaint against Satterwhite for the return of the funds, averring that he was the exclusive owner of the certificate of deposit and that he had titled the certificate of deposit in John’s name “for survivorship purposes only.” He claimed that the power of attorney was the product of undue influence by Satter-white. The complaint was filed on February 7, 2002, commencing the instant action. M.R.C.P. 3(a).

¶ 26. On March 2, 2002, Ladell died. On June 10, 2002, Clarence Beckley, the executor of Ladell’s estate, was substituted as the party-plaintiff in the action. See M.R.C.P. 25(a). The estate executor’s substitution as the party-plaintiff is addressed by Mississippi Code Annotated section 91-7-237, which states, in pertinent part, “[w]hen either of the parties to any personal action shall die before final judgment, the executor or administrator of such deceased party may prosecute or defend such action, and the court shall render judgment for or against the executor or administrator.” Another section, 91-7-233 (Rev.2004), provides that,

Executors, administrators, and temporary administrators may commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted. They shall also be liable to be sued in any court in any personal action which might have been maintained against the deceased.

¶ 27. Under these sections, an action to recover personal property is a “personal action” that survives death. Caine v. Hardy, 943 F.2d 1406, 1410 (5th Cir.1991) (citing Powell v. Buchanan, 245 Miss. 4, 8, 147 So.2d 110, 111 (1962)). A cause of action accrues when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested. McMillan v. Puckett, 678 So.2d 652, 654 (1996). Ladell’s action against Satterwhite accrued during his lifetime and survived his death. Upon the executor’s substitution as party-plaintiff, the executor effectively stepped into the shoes of Ladell in prosecuting the action. Miss.Code Ann. § 91-7-237. Thus, Clarence could recover such damages as Ladell might have recovered had he lived through final judgment.

¶ 28. I discuss the chancellor’s amended judgment. The chancellor found that a confidential relationship had existed between Ladell and Satterwhite, giving rise to a presumption of undue influence. The chancellor found that the presumption of undue influence was unrebutted, a finding which has not been challenged on appeal. Thus, the chancellor found Ladell’s claim to be meritorious. Consequently, had La-dell been alive at the time of the final judgment, the appropriate remedy would have been to award him the approximately $30,000 plus interest from Satterwhite.

¶ 29. However, the chancellor took La-dell’s death into account in fashioning the remedy. The chancellor held that, because the power of attorney was invalid, the certificate of deposit continued unchanged. The chancellor equitably recreated the certificate of deposit as of January 14, 2002. The chancellor then held that the certificate of deposit had become vested in John as the surviving joint tenant as of Ladell’s death on March 2, 2002.

¶ 30. It has been stated that the powers of a chancellor are “as broad as equity and justice require.” Hall v. Wood, 443 So.2d 834, 842 (Miss.1983). Nonetheless, those powers are not without limitation, as discussed in R.N. Turnbow Oil Investments v. McIntosh, 873 So.2d 960, 963(¶ 13) (Miss.2004). In R.N. Tumbow, a chancellor amended a sixty-eight-year-old decree upon a claim that the decree was inaccurate. Id. at 961(¶ 1). The supreme court reversed, holding that the chancellor, though acting in the name of equity, had exceeded his power by overlooking established rules of law governing the time for requesting amendment of a judgment. Id. at 963-65 (¶¶ 15-27). The court stated, “[wjhile a chancellor’s remedial powers may be ‘marked by flexibility’ and ‘plasticity,’ they are not unbridled powers. Courts of equity have all remedial powers necessary to the particular case, except those that are expressly forbidden by law.” Id. at 963(¶ 14).

¶ 31. I would find that, in recreating the certificate of deposit, the chancellor exceeded his broad remedial powers. Under section 91-7-237, the estate was entitled to the same remedy due Ladell had he been alive at the time of the judgment. That remedy was the return of the approximately $30,000 plus interest taken by Sat-terwhite in the exercise of undue influence. When Satterwhite wrongfully withdrew the funds, a cause of action for the return of the funds accrued to Ladell. Ladell was alive at this time and John’s right of sur-vivorship was riot implicated. The chancellor’s award of the funds to John pursuant to his right of survivorship effectively robbed the estate executor of the cause of action that had arisen in Ladell’s favor during his lifetime, which Ladell himself commenced on February 7, 2002, and to which the executor succeeded on June 10, 2002 pursuant to section 91-7-237. For this reason, I dissent.

SOUTHWICK, IRVING, GRIFFIS AND ROBERTS, JJ., JOIN THIS OPINION.

      . Satterwhite testified that they agreed that he would give up the funds in exchange for an agreement to drop criminal charges against him. He further testified that they agreed that he would keep the approximately ten thousand dollar certificate of deposit but would relinquish the funds from the other two certificates of deposit! The estate disputes this agreement 'and avers- that Satterwhite owes the estate the ten thousand dollars. Sat-terwhite did not pay over the ten thousand dollars in March 2002 and testified that he spent it.


author: MYERS, P.J.,

text:
    Newell Matthew BROWN, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00520-COA.
    Court of Appeals of Mississippi.
    Jan. 16, 2007.
    Rehearing Denied July 31, 2007.

      Jonathan M. Farris, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   MYERS, P.J.,

for the Court.

¶ 1. Newell Matthew Brown was indicted on the charge of attempted burglary of an inhabited dwelling on December 29, 2003, in the Circuit Court of Forrest County. Leading up to the trial, Brown filed several motions including a demurrer and motion to quash the indictment and a motion in limine to preclude the victim from making an in-court identification. Following a hearing, these pre-trial motions were denied. At his jury trial, Brown was convicted of attempted burglary and sentenced to twenty-five years in the custody of the Mississippi Department of Corrections with fifteen years to be served and the remaining ten years suspended pending successful completion of five years of post-release supervision. Subsequently, Brown moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. Both post-trial motions were denied. Aggrieved by the denials of his motions and by the refusal of a proposed jury instruction, Brown appeals to this Court, assigning error to the trial court as follows:

I. IN DENYING HIS MOTION TO QUASH THE INDICTMENT.
II. IN DENYING HIS MOTION IN LIMINE TO PROHIBIT THE IN-COURT IDENTIFICATION.
III. IN DENYING A CIRCUMSTANTIAL EVIDENCE INSTRUCTION.
IV. IN DENYING HIS MOTION FOR DIRECTED VERDICT, REQUEST FOR PEREMPTORY INSTRUCTION AND MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT AS THE VERDICT REACHED BY THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND WAS MANIFESTLY WRONG AS A MATTER OF LAW.

¶ 2. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 3. The facts adduced at trial reflect that on June 14, 2005, Danielle Brantley, who had moved from California to Hatties-burg, Mississippi to attend college at the University of Southern Mississippi, began unpacking and moving into her new apartment. On June 15, 2005, Danielle decided to sleep her first night in the apartment on her mattress and box springs, which was positioned on the floor directly below her bedroom window. At approximately 2:30 a.m., she decided to go to sleep and turned off the television. Shortly thereafter, she began to hear heavy breathing coming from just outside her bedroom window and what sounded like someone attempting to tear off her bedroom window screen. Danielle immediately retrieved her cell phone, moved to the closet of her bedroom, located the police department telephone number, and called the department to report the prowler at 2:45 a.m. Danielle, feeling unsafe in her closet, then moved into the kitchen of the apartment. As Danielle was relaying her account to the police dispatcher, she went back into her bedroom and peeked out the window through the blinds. Danielle first told the dispatcher that she saw an abandoned bicycle in her yard that was not present when she went to bed. She then identified a man wearing a red t-shirt standing partially behind a large tree located in her backyard and approximately three feet from her bedroom window. However, Danielle was unable to identify the race of the prowler during her conversation with the police dispatcher. Minutes later, at or before 2:53 a.m., the police arrived at Danielle’s apartment and immediately spotted a man, wearing a red t-shirt and riding a bicycle, approximately ten feet away from Danielle’s apartment, approaching a nearby alleyway. After giving several loud commands to the suspect to stop, the officers gave chase, overcame, and eventually apprehended the suspect later identified as Newell Matthew Brown. Thereafter, Danielle ended the telephone call with the dispatcher, exited her apartment and observed her window screen removed and Brown in handcuffs in the custody of the police officers.

I. DENIAL OF MOTION TO QUASH THE INDICTMENT

¶ 4. Brown first contends that the trial judge erred in overruling his demurrer and motion to quash the indictment against him. Brown’s argument is premised on the assertion that the indictment’s charge of attempted burglary does not set forth the elements of the offense of attempted burglary. The indictment against Brown reads:

Newell Matthew Brown in Forrest County, Mississippi, on or about June 15, 2003, did willfully, unlawfully, and feloniously design and endeavor to commit the offense of Burglary, a felony denounced by section 97-17-23, Mississippi Code of 1972, as amended, in that he did intend to enter through the winr dow of the dwelling of Danielle Brantley; and did an overt act toward the commission thereof, to wit: removed the outer screen of a bedroom window; but he failed therein in that Police entered the area and eventually apprehended Newell Matthew Brown, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

¶ 5. Whether an indictment is fatally defective is an issue of law, and on appeal our review of legal issues is de novo. Peterson v. State, 671 So.2d 647, 652 (Miss.1996). We begin our review of the indictment against Brown by looking to Rule 7.06 of the Uniform Rules of Circuit and County Court. Rule 7.06 requires that an indictment “shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” The Rule makes clear that “[f]or-mal and technical words are not necessary ... if the offense can be substantially described without them,”

¶ 6. The Mississippi Supreme Court has found an indictment for attempted kidnapping sufficient as to provide proper notice to a defendant, pursuant to Rule 7.06, when it specified the statute section number which the defendant was alleged to have violated and gave details of the alleged attempt, including the facts of how the attempt failed. Hersick v. State, 904 So.2d 116, 126(¶ 37) (Miss.2004). In Her-siek, the appellant contended that the indictment against him was fatally flawed because while it stated that Hersiek attempted kidnapping, the indictment failed to specify the specific manner in which the kidnapping took place. The supreme court dismissed Hersiek’s argument and held that the indictment provided sufficient detail, explaining that the “indictment against Hersiek state[d] the essential facts, and fully notified him of the nature and cause of the accusation.” Id. at (¶ 37). The indictment against Hersiek described the charge of attempted kidnaping by using the language “a felony denounced by Sections 97-1-7 and 97-3-53, Miss.Code of 1972,” gave the details of the alleged attempted kidnaping, and also provided the details concerning the thwarted attempt. Id. at (¶¶ 35-36). In the case sub judice, the language of the indictment against Brown is strikingly similar to the language in the indictment against Hersiek. Here, the indictment against Brown described the charge of attempted burglary by using the language “a felony denounced by Section 97-17-23, Mississippi Code of 1972,” provided the details of the alleged attempted burglary, and also provided the details concerning the failure to complete the burglary. Following the guidance of our supreme court in Hersick, we find in this case that the indictment against Brown stated the essential facts, and fully notified him of the nature and cause of the charges brought against him. Thus, we find that this issue is without merit.

II. DENIAL OF MOTION IN LIMINE TO PROHIBIT THE IN-COURT IDENTIFICATION OF THE APPELLANT.

¶ 7. In his pre-trial motion, Brown sought to prohibit Danielle Brantley from making an in-court identification of him, which the trial court denied. Brown argues that the trial court should have excluded the testimony of Danielle because her identification of him was tainted and unduly suggestive. Brown maintains that the lower court erred in allowing Danielle to make an in-court identification of him after she had identified him outside of court by use of a “show up” identification method. Brown contends that the show up identification procedure gave rise to a misidentification and further argues that Danielle should not have been allowed to make an in-court identification under the standard set forth in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

¶ 8. “The standard of review for suppression hearing findings in a matter of pretrial identification cases is whether or not substantial credible evidence supports the trial court’s findings that, considering the totality of the circumstances, [the] in-court identification testimony was not im-permissibly tainted.” Ellis v. State, 667 So.2d 599, 605 (Miss.1995). However, should a trial court find that a pre-trial identification was impermissibly tainted, the subsequent in-court identification may still be admissible if it comports with the requirements of due process by testing the identification under the factors enumerated in Biggers. Biggers, 409 U.S. at 199, 93 S.Ct. 375; Ellis, 667 So.2d at 605. Further, we will not disturb the findings of the trial court unless there is an absence of substantial credible evidence supporting the lower court’s decision. Id. at 604.

¶ 9. Brown argues that the use of the show up identification method tainted Danielle’s identification of him at trial. We note, though, that “[o]nly pretrial identifications which are suggestive, without necessity for conducting them in such manner, are proscribed.” York v. State, 413 So.2d 1372, 1383 (Miss.1982). “A show up [identification method] in which the accused is brought by an officer to the eyewitness is [ ] impermissibly suggestive where there is no necessity for doing so.” Id. In this case, we cannot say that a show up identification method was utilized. The facts as adduced at trial indicate that Danielle exited her apartment immediately after Brown was apprehended in her backyard. At the suppression hearing, Danielle testified that the person apprehended in her backyard was Brown. Her identification of Brown resulted from her being at the scene of the arrest only a few minutes from the time she reported the ongoing crime. The situation in the case sub judice differs from that in which law enforcement officers produce an accused to a victim and ask the victim to identify the accused as the perpetrator. Even if this Court were to find that a show up identification method was utilized by the arresting officers, we would find that in this situation, the method was necessary to apprehend the correct person.

¶ 10. Assuming arguendo that a show up identification method was unnecessarily used when Danielle identified Brown as the person who she saw in her backyard, this identification may still be “sufficiently reliable to overcome the taint of the prior improperly attained identification.” Gayten v. State, 595 So.2d 409, 418 (Miss.1992). The lower court, in determining whether an in-court identification is sufficiently reliable to comport with the requirements of due process, applies the factors as enumerated in Biggers. Biggers, 409 U.S. at 199, 93 S.Ct. 375. The findings under the factors of Biggers that we review in determining the likelihood of misidentification are:

(1) the opportunity of the witness to view the criminal at the time of the crime;
(2) the witness’ degree of attention;
(3) the accuracy of the witness’ prior description of the criminal;
(4) the level of certainty demonstrated by the witness at the confrontation; and
(5) the length of time between the crime and the confrontation.

Id. at 199-200, 93 S.Ct. 375; Isom v. State, 928 So.2d 840(¶ 22) (Miss.2006). “Where the trial judge follows these factors and finds that, under the totality of the circumstances, the in-court identification is not impermissibly tainted because it is supported by sufficient credible evidence, this Court will not disturb that finding.” Ellis, 667 So.2d at 605. A review of the record establishes that each of the Biggers factors was satisfied.

(1)The opportunity of the witness to view the criminal at the time of the crime

¶ 11. The trial court found that Danielle had ample opportunity to view Brown at the time of the attempted crime. At the suppression hearing, Danielle testified that she peeked out of her bedroom window blinds and viewed Brown for approximately ten seconds. The Mississippi Supreme Court has held that identifications are admissible when the witness viewed the criminal for only a few seconds. Horne v. State, 825 So.2d 627, 638(¶ 41) (Miss.2002). We find no error with the trial court’s finding that Danielle had sufficient opportunity to view Brown at the time of the attempted burglary.

(2) The witness’ degree of attention

¶ 12. Danielle’s attention was entirely directed at viewing Brown as he tried to hide behind the tree, located approximately three feet from her bedroom window in her backyard. Therefore, we find no issue with the trial court’s finding that the witness’ degree of attention was sufficient.

(3) The accuracy of the witness’ prior description of the criminal

¶ 13. Brown argues that Danielle’s description of the perpetrator to the police dispatch officer did not contain enough details and therefore is insufficient to allow the later in-court identification. Brown’s main assertion is based on Danielle’s inability to identify the race of the individual at one point in her conversation with the dispatcher. During the suppression hearing, Danielle’s testimony provided that she saw an abandoned bicycle and an individual wearing a red t-shirt in the backyard. Danielle testified that the individual she saw in her backyard was the same individual she later saw in custody. When Danielle was questioned as to the reason she did not provide any further details regarding the individual prior to the hearing, she responded that she was never asked for any further details. There is no absolute requirement on the degree of detail necessary for a description to be adequate. Herrington v. State, 831 So.2d 580, 582(¶ 8) (Miss.Ct.App.2002). The trial judge found Danielle’s description of the individual to be sufficiently accurate and we can find no error in this assessment by the lower court.

(U) The level of certainty demonstrated by the witness at the confrontation

¶ 14. Danielle testified to being one-hundred percent certain that the individual she saw in her backyard the night of the attempted burglary was Brown, and thus we find that the trial court did not err in finding this Biggers factor satisfied.

(5) The length of time between the crime and the confrontation

¶ 15. Lastly, it is clear from the record that the length of time between the crime and the confrontation was only a matter of minutes. Only a few minutes elapsed between Danielle’s call to the police department and her identification of Brown, almost immediately upon his apprehension in her backyard.

¶ 16. The trial court reviewed each of the Biggers factors and considered the admission of the in-court identification under the totality of the circumstances. Ellis, 667 So.2d at 605. Our review of the record establishes that the Biggers factors, taken together, were properly considered by the trial court. We find that there was substantial credible evidence supporting the trial court’s findings that the in-court identification testimony was not impermis-sibly tainted. Therefore, we affirm the trial court’s admission of Danielle’s in-court identification.

III. REFUSAL OF CIRCUMSTANTIAL EVIDENCE INSTRUCTION

¶ 17. Brown requested the trial court to give the jury proposed instructions D-6 and D-7. Both instructions were refused and, consequently, the jury was never instructed regarding the prosecutor’s use of circumstantial evidence. Brown asserts that the refusal of the instructions is reversible error because he was entitled to a circumstantial evidence instruction. Proposed instruction D-6 would have informed the jury as follows:

The court instructs the jury that if the State has relied on circumstantial evidence to establish its theory of guilt of the defendant, then the evidence for the State must be so strong as to establish the guilt of the defendant, not only beyond a reasonable doubt, but the evidence must be so strong as to exclude every other reasonable hypothesis other than that of guilt.

Proposed instruction D-7 would have informed the jury as follows:

The court instructs the jury that if there be a fact or circumstance in this case which is susceptible of two interpretations, one favorable and the other unfavorable to the defendant, and if after considering all the other facts and circumstances there is reasonable doubt regarding the correct interpretation, then you, the jury, must resolve such doubt in favor of the accused, and place upon such fact or circumstance the interpretation most favorable to the defendant.

Upon our review of the proposed instructions, instruction D-6 was an instruction regarding the prosecutor’s use of circumstantial evidence and instruction D-7 was an instruction termed a “two-theory” instruction.

¶ 18. “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole.” Johnson v. State, 823 So.2d 582, 584(¶ 4) (Miss.Ct.App.2002). “When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. In a criminal case in which the State’s evidence is entirely circumstantial, the trial court is required to instruct the jury concerning the use and treatment of that type of evidence through two types of instructions: a circumstantial evidence instruction and a “two-theory” instruction. Jones v. State, 797 So.2d 922, 928(¶ 26) (Miss.2001). However, there is no requirement that a trial judge give instructions on circumstantial evidence where there is direct evidence, such as eyewitness testimony, presented of the crime. Wortham v. State, 883 So.2d 599, 606(¶31) (Miss.Ct.App.2004); Porter v. State, 616 So.2d 899, 909 (Miss.1993); Deal v. State, 589 So.2d 1257, 1260 (Miss.1991). “We will not reverse a conviction based upon both direct and circumstantial evidence.” Clark v. State, 503 So.2d 277, 278 (Miss.1987).

¶ 19. Brown argues that all of the evidence presented against him at trial was circumstantial in nature because Danielle could not testify that the defendant was the person who removed the window screen. In support of his argument, Brown points out that Danielle was unable to identify the race of the prowler at one point during her conversation with the police dispatcher, and therefore reasons that she could not possibly have been able to accurately identify the man in the red shirt as Brown at trial. The State argues that the victim testified that the man in the red shirt that she saw behind the tree was Brown. The State reasons that this testimony of Danielle amounted to direct evidence, and therefore a circumstantial evidence instruction was not required.

¶ 20. Our review of the record supports the State’s argument that part of the case against Brown is based upon the direct evidence of Danielle’s in-court identification of Brown as the perpetrator. While some of the evidence against Brown is circumstantial in nature, Danielle’s testimony as an eyewitness was direct evidence supportive of the jury’s finding of his guilt. Danielle testified that she saw the individual, and could identify his shirt, hair, and body build. She also testified that, upon his apprehension by the police officers, she recognized the suspect in custody as the same individual she had seen in her backyard a few minutes before. Therefore, we find that, in this case, the State’s evidence is not wholly circumstantial, but based on both direct and circumstantial evidence. For this reason, we find that Brown was not entitled to a circumstantial evidence jury instruction and thus no reversible error was committed by the trial court.

IV. DENIAL OF MOTION FOR DIRECTED VERDICT, REQUEST FOR PEREMPTORY INSTRUCTION AND MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT.

¶21. Brown asserts that the State provided insufficient evidence to convict him of attempted burglary and assigns error to the trial court for the court’s denial of his motion for a directed verdict, the court’s passing upon his request for a peremptory instruction that would have asked the jury to return a verdict of not guilty, and for the court’s denial of his motion for a judgment notwithstanding the verdict. In our review of the trial court, we consider the evidence before the court when the last objection was made. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The last challenge cited on appeal was made with Brown’s request for the peremptory instruction and his motion for JNOV.

1122. A trial court s denial of a motion for directed verdict, denial of a request for a peremptory instruction, and denial on a motion for a judgment notwithstanding the verdict all challenge the legal sufficiency of the evidence presented. Id. This Court considers the evidence in the light most favorable to the non-movant, giving the benefit of all favorable inferences that may be reasonably drawn from the evidence. If the evidence was sufficient to establish guilt beyond a reasonable doubt and to support a guilty verdict, the denial of the motions for a directed verdict, for a JNOV, and for peremptory instructions must be affirmed. Shelton v. State, 853 So.2d 1171, 1186(¶ 48) (Miss.2003); Jefferson v. State, 818 So.2d 1099, 1111 (Miss.2002); McClain, 625 So.2d at 778; Brown v. State, 556 So.2d 338, 340 (Miss.1990).

¶ 23. To convict Brown for the offense of attempted burglary the State had to prove beyond a reasonable doubt (1) Brown’s intent to commit burglary, (2) a direct ineffectual act done toward the burglary’s commission, and (3) the failure to consummate the commission of the burglary. See Miss.Code Ann. § 97-1-7 (providing the elements of attempt and punishment thereof); Miss.Code Ann. § 97-17-23 (providing the elements of burglary of an inhabited dwelling).

¶ 24. At trial, several witnesses testified including Danielle, the police dispatcher who took Danielle’s call, and the two responding police officers. The audiotape recording of the conversation between Danielle and the police dispatcher was played for the jury. Testimony provided that Danielle heard someone removing the screen from her bedroom window and breathing heavily. Further testimony showed that once the scene was investigated by Danielle and the officers, the screen was found removed from the window. Danielle further testified to having seen Brown in her backyard shortly after hearing the window screen tampering. Further, testimony presented showed that the police found Brown in her backyard within just a few minutes of Danielle’s call to the police department.

¶ 25. Following our standard of review, viewing the evidence presented at trial in the light most favorable to the State and giving consideration to all reasonable inferences the jury may have drawn from this evidence, we cannot say that the evidence before the jury was insufficient to support a guilty verdict. Therefore, we affirm the lower court’s denial of Brown’s motion for directed verdict, request for a peremptory instruction, and motion for a judgment notwithstanding the verdict.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY OF CONVICTION OF ATTEMPTED BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE YEARS, FIFTEEN YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND THE REMAINING TEN YEARS SUSPENDED UPON SUCCESSFUL COMPLETION OF FIVE YEARS’ POST-RELEASE SUPERVISION IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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


author: CARLTON, J.,

text:
    Albert JONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02135-COA.
    Court of Appeals of Mississippi.
    Feb. 20, 2007.
    Rehearing Denied June 5, 2007.

      Michael Duane Mitchell, Jeannene Pacific, attorney for Appellant.
    Office of the Attorney General by Billy L. Gore, attorney for Appellee.
    Before LEE, P.J., GRIFFIS, ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Albert Jones was convicted by a Jones County Circuit Court jury for the crime of sale of cocaine. Jones challenges the sufficiency of the evidence and the effectiveness of his trial counsel. Finding no error, we affirm.

FACTS

¶ 2. On December 9, 2003, a confidential informant, whom we refer to as James, conducted an undercover purchase of cocaine from Jones. James was a prior convicted felon and had a shoplifting charge pending against him when he made the undercover purchase of cocaine. There was testimony that his purchase of the cocaine was to curry favor with the police in an effort to get out of trouble on the charge against him. James went to the Laurel Police Department and was fitted with audio and video equipment and supplied with purchase money for the drugs. His person and vehicle were searched to ensure he did not have any contraband in his possession. James then directly proceeded to purchase cocaine from Jones and promptly returned to the Laurel Police Department.

¶ 3. Laurel Police Officer Robert Strickland received back the video and audio evidence from James along with the two crack cocaine rocks that James had purchased. Strickland knew Jones and readily identified Jones as the person on the video selling cocaine to James.

¶ 4. Jones was later arrested and indicted for sale of cocaine in violation of Mississippi Code Section 41-29-139. The money was never recovered that was issued to James for the drug purchase. A jury convicted Jones of the crime as charged. His appeal has been deflected to this Court.

DISCUSSION

1. Sufficiency of Evidence

¶ 5. Jones argues the evidence presented at trial was insufficient to convict him. He concludes that the trial court erroneously denied his motion for a directed verdict. Jones argues that the evidence was insufficient to support his conviction because the only eyewitness, James, was of questionable character and was biased against Jones. Jones reasons that James was not credible because of his criminal activity and a previous altercation between the two men in 1996 where Jones had shot James in a dispute over a girl. James testified that the two had long put that incident behind them and reconciled their differences.

¶ 6. In reviewing the sufficiency of the evidence we consider all of the evidence in the light most favorable to the State. Shaw v. State, 915 So.2d 442, 448 (Miss.2005); Bush v. State, 895 So.2d 836, 843 (Miss.2005). We must determine whether a jury could not have found Jones guilty even in light of all the reasonable inferences that could have been derived from the evidence. Shaw, 915 So.2d at 448-49.

¶ 7. The indictment charging Jones burdened the prosecution to prove that he “did wilfully, unlawfully, feloniously and knowingly sell or transfer Cocaine.... ” The evidence presented against Jones at trial included direct testimony and video evidence of the sale and transfer of a substance later confirmed to be cocaine. Officer Strickland readily identified the seller of cocaine on the video as Jones. James also identified the seller of cocaine as Jones.

¶ 8. There is little doubt that James was not the most reliable or credible witness. James acknowledged the factors that might show his reason for bias against Jones. Even so, the role of the jury is to be the sole judges of the credibility of the witnesses. Hobgood v. State, 926 So.2d 847, 854 (Miss.2006); Byrd v. State, 522 So.2d 756, 760 (Miss.1988). The jury was aware of the altercation between the two men and that James was working with police because he had a pending charge against him. It is obvious from the verdict that the jury found the evidence against Jones credible. Viewing the evidence in a light most favorable to the State, there is sufficient evidence to support their decision to convict Jones.

2. Ineffective Assistance of Counsel

¶ 9. Jones acknowledges that the merits of this issue may not usually be addressed on direct appeal. His appellate counselors believe that they would be remiss in their duties to zealously advocate the ease for Jones if they did not included this issue in his brief. Jones lists several instances of ineffective assistance of counsel including: (1) allowing the prosecutor to testify during jury voir dire about narcotics investigations and use of confidential informants, (2) failing to conduct a proper voir dire of the jury pool, (3) failing to deliver an effective closing argument, and (4) failing to prepare any jury instructions. Jones states that the entirety of his counsel’s conduct is not clear solely from reading the trial transcript and requests a reversal of his conviction, or in the alternative a new trial.

¶ 10. As Jones recognizes, it is unusual for an appellate court to consider an ineffective assistance of counsel claim on direct appeal because “we are limited to the trial court record in our review of the claim and there is usually insufficient evidence -within the record to evaluate the claim.” Wilcher v. State, 863 So.2d 776, 826 (Miss.2003) (quoting Aguilar v. State, 847 So.2d 871, 878 (Miss.Ct.App.2002) (citation omitted)). We also note that “where the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief.” Wilcher, 863 So.2d at 826 (quoting Aguilar, 847 So.2d at 878). On direct appeal this Court will only rule on the merits of an ineffective assistance of counsel claim if: “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Wilcher, 863 So.2d at 825 (citations omitted).

¶ 11. The parties have not made a stipulation as to the record. The focus of our review then is to determine whether the record shows ineffectiveness of constitutional dimensions. The standard of our review here is whether representation of Jones was “so lacking in competence that it becomes apparent or should be apparent that it is the duty of the trial judge to correct it so as to prevent a mockery of justice.” Ransom v. State, 919 So.2d 887, 889 (Miss.2005) (quoting Parham v. State, 229 So.2d 582, 583 (Miss.1969)). We are also guided by the standard to demonstrate counsel was constitutionally inadequate by proving deficient performance and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is shown if there is a “reasonable probability” that without the deficiency of counsel Jones would have had a different outcome at trial. Nicolaou v. State, 612 So.2d 1080, 1086 (Miss.1992). This requires us to review all the circumstances at trial. Id. The burden of proof is on Jones. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Mere allegations are not sufficient to meet this burden of proving prejudice. Johnston v. State, 730 So.2d 534, 538 (Miss.1997).

¶ 12. The record reflects that trial counsel for Jones did ask some improper questions to jurors during voir dire, but were not of any constitutional significance. The prosecution made some statements during voir dire about the nature of a confidential informant in order to inquire about whether any potential jurors had a problem with police using confidential informants. During her closing argument defense counsel improperly referred to the previous military service of Jones and the possibility of Jones receiving up to thirty years in prison if convicted. These statements by counsel may have been improper but were made to assist Jones, and did not prejudice his defense. Overall the record reflects that defense counsel made a valid attempt during her closing argument to discredit the State’s case.

¶ 13. Regarding the lack of jury instructions, defense counsel stated that she was satisfied with the jury instructions the trial court would give to the jury. The trial judge asked defense counsel if she at least had an instruction in reference to Jones choosing not to testify. The trial judge stated that such an instruction was needed. The prosecution had the instruction faxed to the court. Jones fails to propose any particular instruction that he thinks would have prevented an unjust result.

¶ 14. Four instructions were given to the jury. The court’s instructions included a lengthy general instruction and an instruction on the form of the verdict. The State’s instruction reiterated the crime as charged in the indictment and stated that the jury should not convict Jones if the State failed to prove all elements of the charge. The one defense instruction was provided by the prosecution concerning the right of a criminal defendant not to testify.

¶ 15. Defense counsel’s decision to not prepare any jury instructions may have been a part of trial strategy or may be an indication of the quality of the defense Jones received. Counsel did indicate that she was satisfied with the instructions the trial court would give to the jury. Although not a factor we consider, it is useful to note that Jones was not represented by court appointed counsel; he chose to retain defense counsel for his representation. The record does not reflect that failing to prepare jury instructions undermined a just result being reached at trial.

¶ 16. We do not examine the record to determine the quality of the representation Jones received but rather the constitutional sufficiency of the representation. Jones did not have a constitutional right to errorless counsel. Branch v. State, 882 So.2d 36, 52 (Miss.2004). A review of the record before us does not demonstrate that the outcome here was a mockery of justice or that counsel was constitutionally inadequate. The record reflects that the fairness of the trial Jones received was not affected by the actions of his counsel. Finding no error we affirm his conviction.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TWENTY YEARS TO SERVE AND TEN YEARS SUSPENDED AFTER COMPLETION OF THE COMMUNITY SERVICE PROGRAM AND A $1,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: LEE, P.J.,

text:
    Sam TURNER, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-02348-COA.
    Court of Appeals of Mississippi.
    April 3, 2007.
    Rehearing Denied July 31, 2007.

      Sam Turner, Appellant, pro se.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On November 19, 2004, Sam Turner pled guilty in the Lowndes County Circuit Court to one count of sale of cocaine. Turner was sentenced to pay a fine of $5,000 and to serve twenty years in the custody of the Mississippi Department of Corrections. Another sale of cocaine count was retired to the file. On October 4, 2005, Turner filed a motion for post-conviction relief alleging ineffective assistance of counsel, violation of right to speedy trial and insufficient evidence. The trial court denied Turner’s motion finding his issues to be without merit. Turner now appeals to this Court asserting the following issues: (1) his guilty plea was not entered into intelligently and voluntarily; (2) there was no factual basis for the trial court to accept his guilty plea; (3) his counsel was ineffective; and (4) he was deprived of his right to a speedy trial.

STANDARD OF REVIEW

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

DISCUSSION

I. WAS TURNER’S GUILTY PLEA ENTERED INTO VOLUNTARILY?

¶ 3. In his first issue on appeal, Turner argues that his guilty plea was not entered into voluntarily or intelligently. A plea is considered “voluntary and intelligent” if the defendant knows the elements of the charge against him, understands the charge’s relation to him, what effect the plea will have, and what sentence the plea may bring. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). Furthermore, solemn declarations in court carry a strong presumption of verity. Gable v. State, 748 So.2d 703, 706(¶ 11) (Miss.1999). During the plea colloquy, Turner was informed of the charge against him, the effect of the plea, what rights he would waive if he pled guilty and the possible sentence he could receive. Turner claims that he was pressured into pleading guilty because of the habitual offender language in the indictment. There is no evidence in the record to support this contention. To survive summary dismissal, a collateral attack on a facially correct plea must include supporting affidavits of other persons. Baker v. State, 358 So.2d 401, 403 (Miss.1978). Furthermore, the habitual offender language in the indictment was deleted prior to Turner’s guilty plea and the trial court reiterated that fact during the colloquy.

¶ 4. Turner also contends that he had never been convicted of any felonies only misdemeanors. Upon review of the pre-sentencing investigation report, it is apparent that Turner had been convicted of two felonies as well as numerous misdemeanors. We also note that during the plea colloquy the trial judge informed Turner that he had to impose the minimum fine of $5,000 because Turner had a prior felony. However, according to Mississippi Code Annotated Section 41 — 29—139(b)(1) (Rev. 2005) the minimum fine for sale of cocaine is $5,000 regardless of prior offenses.

¶ 5. We find no merit to this issue.

II. WAS THERE A FACTUAL BASIS FOR TURNER’S GUILTY PLEA?

¶ 6. In his second issue on appeal, Turner argues that there was no factual basis for the trial judge to accept his guilty plea. Pursuant to URCCC 8.04(A)(3), in order for the trial court to accept a guilty plea, the court must determine that there is a factual basis for the plea. The factual basis requirement is met when the record “containfs] ‘enough that the court may say with confidence the prosecution could prove the accused guilty of the crime charged.’ ” Jones v. State, 936 So.2d 993, 999(¶ 21) (Miss.Ct.App.2006) (quoting Corley v. State, 585 So.2d 765, 767 (Miss.1991)). An adequate factual basis for the plea may be formed by any record evidence before the court, including the defendant’s admission of guilt. Corley, 585 So.2d at 767. In Turner’s case, the State was prepared to show that Turner sold an informant cocaine. The State also noted that this transaction was captured on videotape. Turner subsequently admitted that he had committed the crime. We find no merit to this issue.

III. WAS TURNER’S TRIAL COUNSEL INEFFECTIVE?

¶ 7. In his third issue on appeal, Turner contends that his trial counsel was ineffective. Turner must demonstrate that his trial counsel’s performance was deficient and the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the context of a guilty plea, Turner must demonstrate that his counsel’s performance fell below the minimal range of competence expected of attorneys in criminal cases and that but for that sub-standard performance, he would have insisted on going to trial. Alexander, 605 So.2d at 1173. Turner alleges that his trial counsel was ineffective for numerous reasons, a few which we state as follows: she did not discuss his case with him prior to trial, she failed to obtain discovery, she worked with the prosecution instead of for Turner, and she advised him that he would only have to serve two years. Turner fails to support these allegations and mainly uses this issue to reassert his innocence. This issue is without merit.

IV. WAS TURNER DEPRIVED OF HIS RIGHT TO A SPEEDY TRIAL?

¶ 8. In his fourth issue on appeal, Turner argues that he was deprived of his right to a speedy trial. Turner claims that failing to timely appoint trial counsel violated his right to a speedy trial. However, a valid guilty plea operates as a waiver of all non-jurisdictional defects or rights incidental to trial and this includes a defendant’s right to a speedy trial. Anderson v. State, 577 So.2d 390, 391-91 (Miss.1991). Having found Turner’s guilty plea was valid, we find no merit to this issue.

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

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


author: GRIFFIS, J.,

text:
    Shawanda MOORE, Appellant v. Gerondrick S. COLE, Appellee.
    No. 2005-CA-02290-COA.
    Court of Appeals of Mississippi.
    April 3, 2007.
    Rehearing Denied July 31, 2007.

      Ross R. Barnett, Jr., Jackson, attorney for appellant.
    Thomas T. Buchanan, Laurel, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Shawanda Moore brought this action against Gerondriek S. Cole for modification of child custody. The chancellor denied the modification and found that there was no material change of circumstances that adversely affected the child. Moore argues that the chancellor’s judgment was against the overwhelming weight of the evidence.

FACTS

¶ 2. Moore and Cole are the natural parents of Jaylan Cole, born September 10, 1997. At the time of Jaylan’s birth, Moore was a student at Alcorn State University, and Cole was a student at the State Highway Patrol school. Moore and Cole were never married.

¶ 3. Through 1999, Jaylan lived alternately with his maternal grandmother in Jackson and his paternal grandparents in Memphis, while both parents finished school. In 2000, Jaylan lived with Cole’s parents.

¶ 4. On December 15, 2000, Cole became a State Highway Patrol officer, and Jaylan began to live with his father and his stepmother Teresa, in Laurel. In their home, Jaylan lived with his stepbrother Lakon and half-brother Christian. Cole’s work schedule required that he work seven night shifts every other week. When Cole had to work night shifts, either Teresa or her parents would watch Jaylan and the other children.

¶ 5. About the same time, Moore left Alcorn State University and moved to Georgia. On July 12, 2003, Moore came to get Jaylan for a weekend visit. Moore took Jaylan to her residence in Georgia and refused to bring him back to Mississippi.

¶ 6. On August 7, 2003, Cole filed an action to determine paternity and establish custody. Cole was granted temporary custody, and Moore was granted temporary visitation. On January 15, 2004, the court entered an order that adjudicated Cole to be Jaylan’s father, and Cole was granted custody of Jaylan. Moore was given visitation rights. Because Cole did not seek child support, the chancellor ordered no child support would be required but held that Cole could petition for child support in the future. Moore did not appeal this order.

¶ 7. Later in January of 2004, Cole and Teresa began divorce proceedings. Teresa, Christian and Lakon moved to Meridian. Cole moved to Canton to attend specialized officer training, which would last three months. Due to the divorce and training, Cole sent Jaylan to his parents’ home in Memphis. Jaylan lived in Memphis from January to May 2004. He attended Florida-Kansas Elementary School, where his grandmother Pallascene B. Cole was the principal. Moore was aware of this arrangement and did not object.

¶ 8. In May of 2004, Jaylan moved back in with Cole. Since then, Jaylan has continued to live with Cole in Madison County. On June 11, 2004, Cole’s parents moved to Canton, just down the street from Cole and Jaylan. Pallascene Cole is now the principal of Canton Elementary, where Jaylan attends school. Cole’s work schedule requires that Jaylan spend approximately two nights a week at his grandparents’ house.

¶ 9. On July 9, 2004, Moore filed for a modification of custody. Moore alleged that (1) the move to Memphis between January and May had disrupted Jaylan’s life, (2) Cole was no longer the primary caregiver, and (3) Jaylan’s brother was no longer living with him. Cole counterclaimed for child support. At trial, Moore claimed that the only adverse change of circumstances was Cole’s work schedule. The chancellor found that Moore had failed to meet the burden of proof to establish a material change of circumstances that adversely affected the child and denied Moore’s claim for modification. The chancellor granted Cole’s counterclaim and awarded him $202 per month in child support. It is from this order that Moore appeals.

STANDARD OF REVIEW

¶ 10. Matters involving child custody are within the sound discretion of the chancellor. Sturgis v. Sturgis, 792 So.2d 1020, 1023(1112) (Miss.Ct.App.2001). A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So.2d 623, 625(¶8) (Miss.2002). This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 625-26(¶ 8). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶5) (Miss.2002).

ANALYSIS

¶ 11. Moore argues that the chancellor’s decision was against the overwhelming weight of the evidence and the applicable evidence.

¶ 12. In Mabus v. Mabus, 847 So.2d 815, 818(118) (Miss.2003), the supreme court held:

In a case disputing child custody, the chancellor’s findings will not be reversed unless manifestly wrong, clearly erroneous, or the proper legal standard was not applied. Hensarling v. Hensarling, 824 So.2d 583, 587 (Miss.2002). See also Wright v. Stanley, 700 So.2d 274, 280 (Miss.1997); Williams v. Williams, 656 So.2d 325, 330 (Miss.1995). The burden of proof is on the movant to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial home. Riley v. Doerner, 677 So.2d 740, 743 (Miss.1996).
In the ordinary modification proceeding, the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody. Bubac v. Boston, 600 So.2d 951, 955 (Miss.1992).
In considering whether there has been such a change in circumstances, the totality of the circumstances should be considered. [Spain v. Holland, 483 So.2d 318, 320 (Miss.1986).] Even though under the totality of the circumstances a change has occurred, the court must separately and affirmatively determine that this change is one which adversely affects the children. Id.
Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997). Furthermore, it is well settled that the polestar consideration in any child custody matter is the best interest and welfare of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

¶ 13. The chancellor examined whether there had been a material change in the custodial home since January 15, 2004, the date of the original custody order. The chancellor determined that the only issue that Moore pointed to was the fact that Cole’s work schedule as a state trooper was different. The chancellor ruled that Cole was a state trooper at the time of the original order, and thus, Cole’s work schedule could not be considered a change of circumstances. The chancellor also concluded that Jaylan was well adjusted, making good grades and had no serious health issues. Hence, the chancellor held that Moore failed to meet her burden of proof to establish a claim for modification of custody.

¶ 14. On appeal, Moore argues that the chancellor ignored evidence of significant changes in Jaylan’s life during this time. Moore claims that there was a disruption to Jaylan’s home life. She points to evidence that Cole was married at the time of the original order and presented a stable home life at that time. Thereafter, Moore argues that the chancellor failed to consider the fact that Jaylan’s home life “fell apart” due to Cole’s marital difficulties, that Jaylan was sent away to live with his paternal grandmother, and that Jaylan was enrolled in another school as sufficient evidence of a material change of circumstances.

¶ 15. The evidence presented at the hearing indicates that none of these changes had an adverse impact on Jaylan’s health or welfare. Moore admitted that there has been no adverse impact on Jay-lan’s schoolwork. The witnesses agreed that Jaylan was a smart, well adjusted child, with no behavioral problems. The only evidence of an adverse change, which Moore identified at the hearing, was Cole’s new work schedule. On direct, she was asked:

Q. Do you know of anything right now that Mr. Cole is doing or not doing that is adversely affecting the child that causes you to feel this Court should change custody of the child from Mr. Cole to you?
A. Well, for Mm having primary custody, his work schedule is just, you know, it varies. I think that we’re being his parents, I don’t think his parents should have to take care of Jaylan. You know, if he’s not going to be there all the time for Jay, I should be there for Jay. You know, he has a varying work schedule. He’s a state trooper, so he doesn’t have a set schedule where he’s going to work a set schedule. I do. I can be there at night with Jay. His schedule can be set and stable. You know, have a consistent schedule; not varying back and forth between [Colej’s house and his grandparents’house. He’ll just have one set place to be.
Q. So, you feel the child should know that he’s going to sleep in the same bed every night.
A. Right. And not have to be back and forth.

¶ 16. We recognize that this testimony could assist the chancellor in an initial custody determination, ie., an Albright analysis. However, this evidence is not sufficient under a modification of custody analysis. In essence, Moore does - not claim that Jaylan has been negatively affected by his living arrangement. Instead, she merely argues it would be better at her house. Accordingly, there is sufficient evidence to support the chancellor’s conclusion that Cole’s work schedule is .substantially the same if not better than it was at the time of the initial custody award. Cole is required to work some night shifts. On these occasions, .Jaylan stays with his grandparents. There was also evidence for the chancellor to conclude that Cole’s schedule had improved. Rather than working fourteen nights a month, he only works ten nights a month. Also, before Cole did not get any time off from work. Now, his schedule allows him to have nine days a month off from work. Rather than spend the night two miles down the road at his stepgrandparents’ home, Jaylan can spend the night across the street at his grandparents’ home.

¶ 17. We do not find that the chancellor was manifestly wrong, clearly erroneous, or applied the improper legal standard. To the contrary, there is more than sufficient evidence to support the chancellor’s finding that Moore failed to show a material change in circumstances that adversely affected the child. Therefore, the chancellor correctly denied Moore’s claim for a modification of custody. We affirm.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ„ CONCUR. CARLTON, J„ NOT PARTICIPATING.