author: BARNES, J., for the Court. GRIFFIS, J.,

text:
    Ginger M. McSWAIN (Hartfield), Appellant v. Charles C. McSWAIN, Appellee.
    No. 2004-CA-00088-COA.
    Court of Appeals of Mississippi.
    Nov. 8, 2005.
    Rehearing Denied March 28, 2006.

      William E. Andrews, Purvis, attorney for appellant.
    James R. Hayden, Hattiesburg, attorney for appellee.
    Before KING, C.J., IRVING and BARNES, JJ.
   BARNES, J., for the Court.

¶ 1. The Chancery Court of Lamar County transferred custody of Charles Miller McSwain (Miller) from his mother, Ginger McSwain (Hartfield), to his father, Charles McSwain. The chancellor based his action on a finding that there were material changed circumstances, in that Ginger had become addicted to alcohol and drugs and had checked herself into a rehabilitation facility. The chancellor found that these circumstances had an adverse impact on Miller’s welfare, thus necessitating the change of custody. Aggrieved by the chancellor’s decision, Ginger appealed. We find that the chancellor manifestly erred by considering the potential for changed material circumstances, rather than whether changed material circumstances existed at the time of the hearing. Accordingly, we reverse and render.

FACTS AND PROCEDURAL HISTORY

¶ 2. Charles and Ginger McSwain were married on October 10, 1997, in Costa Rica, Central America. The marriage produced one child, Miller. On April 25, 2000, the parties filed a joint bill for divorce on the grounds of irreconcilable differences in the Chancery Court of Lamar County. On August 25, 2000, Charles and Ginger entered into a settlement agreement of child custody, support, and property distribution. Under the terms of the agreement, both parties retained legal custody of Miller, while physical custody, primary care, and control of Miller was placed in Ginger. Charles received reasonable visitation rights and agreed to pay monthly child support. On September 14, 2000, the chancellor approved the settlement agreement and entered a final judgment of divorce.

¶ 3. Some time later, on or about February 2001, Ginger married Joe Hartfield. Joe and Ginger have a child, Madison. Testimony at trial from both Ginger and Joe showed that this marriage was fraught with strife from the very beginning. The couple argued and fought, sometimes violently, and the arguments many times involved physical violence as well. Although both Ginger and Joe denied that Miller or Madison were ever harmed or were ever in danger of being harmed by the physical violence, they also testified that the children were often present and contemporaneously witnessed the fights. Joe testified that, very early into the marriage, he began to have thoughts of divorcing Ginger. He attributed Ginger’s actions to alcoholism, which he believed existed before their marriage, and to the negative interaction of Ginger’s alcohol consumption with her antidepressant medications. Ginger’s unpredictable actions would sometimes rise to the level that Joe felt it was necessary to take Madison and, on one occasion, Miller, to the house of Joe’s mother.

¶ 4. Although there is no specific time frame for the foregoing events, other than that they occurred between 2001 and 2002, Ginger’s condition appears to have seriously deteriorated in July of 2002. Ginger testified that during the month of July she smoked crack cocaine with her neighbor, Ramona. She then smoked the drug two more times in the month of August. By September, Ginger was smoking crack with her neighbor on a regular basis, apparently to the extent of a $300 a week habit. Ginger testified that she took Miller with her to Ramona’s house when she smoked crack, and that Miller would wait in another room while she and Ramona smoked crack in the bathroom.

¶ 5. This drug use brought Ginger’s condition to a desperate point, and on September 24, 2002, she voluntarily checked herself into the Jolimar Summit Wellness Institute for drug and alcohol rehabilitation. Ginger voluntarily transferred custody of Miller to Charles for the duration of her stay at Jolimar. She completed the primary care program at Jolimar on October 22, 2002, and then completed an aftercare program on November 22, 2002.

¶ 6. On November 5, 2002, Charles filed a petition for modification of custody of Miller in Lamar County Chancery Court. The same day, the court held an emergency hearing without notice and issued an ex parte emergency temporary order which transferred temporary physical custody of Miller to Charles. Ginger promptly answered with a motion filed on November 13, 2002, to set aside or modify the temporary order. In response, the chancellor modified the temporary order to allow Ginger weekend visitation for the weekend of November 15-17, 2002. The court then approved an agreed order on December 10, 2002, which gave Ginger custody of Miller at random times throughout the month of December and up until January 8, 2003. Finally, the court entered yet another modification on January 31, 2003, which gave the parties alternating custody of Miller up until the time of trial. Trial on the issue of a permanent custody modification was set for March 12, 2003. However, due to the failure of a subpoenaed witness to appear, the trial was postponed. The chancellor issued a temporary order on March 14, 2003, which gave the parties alternate custody of Miller on a weekly basis up until the time of trial.

¶ 7. Following a hearing on the merits, the chancellor issued a judgment on September 16, 2003, which permanently transferred custody of Miller to Charles. In support of his decision, the chancellor found that Ginger is a drug and alcohol addict who has suffered from suicidal tendencies, depression, and other symptoms that accompany addiction. However, he did note that Ginger admitted herself to Jolimar, and that her counselor testified that she was released with a good prognosis, and that there was no reason to believe, at the time of the hearing, that Ginger had relapsed into her former addictions. Nevertheless, the chancellor found that Ginger was not participating in a recommended aftercare program, that Ginger was still associating with her former drug partner, Ramona, that Ginger was taking antidepressants and was anxious at times, and that marital discord persisted between Ginger and Joe.

¶ 8. At the same time, the chancellor found that Miller’s father, Charles, had remarried and currently had a more stable home life. The chancellor acknowledged, however, that Charles was currently on his fourth marriage, and that he uses alcohol on a regular basis.

¶ 9. Based on these findings, the chancellor determined that Ginger’s drug and alcohol addiction was a material changed circumstance which had an adverse impact on Miller in that the addiction “forc[ed] at least a temporary change in Miller’s custody, the absence of Ginger being detrimental to Miller....” The court determined the question then to be whether this changed circumstance “continues to be material and detrimental, or whether it is in the best interest and welfare of Miller for custody to remain with Charles.” In order to determine whether Ginger had regained her stability and suitability for permanent custody, the chancellor looked to the Al-bright factors. Under the chancellor’s analysis, the Albright scale tipped in Charles’ favor. The chancellor ruled that the parties should maintain the current joint custody agreement through January 1, 2004, and then permanent custody would be transferred to Charles, with Ginger having “every reasonable visitation” including every other weekend, spring break week, and “extended visitation for the full Summer.”

STANDARD OF REVIEW

¶ 10. Determinations of custody are within the sound discretion of the chancellor. Sturgis v. Sturgis, 792 So.2d 1020, 1023 (¶ 12) (Miss.Ct.App.2001). Findings of the chancellor will be upheld if they are based on substantial evidence, and we will not overturn a chancellor’s findings unless they are clearly erroneous, exhibit manifest error, or are based upon an improper legal standard. Mosley v. Atterberry, 819 So.2d 1268, 1272 (¶ 16) (Miss.2002); Cooper v. Ingram, 814 So.2d 166, 167 (¶ 2) (Miss.Ct.App.2002).

ANALYSIS

¶ 11. Ginger raises several issues on appeal, but we focus our analysis on whether the chancellor properly found that there was an existing material change in circumstances at the time of trial. Ginger argues that the chancellor erred because, instead of determining whether there was a material change in circumstances, he merely re-weighed the Albright factors. Charles counters that the chancellor considered all of the relevant circumstances, and that his decision is therefore in the best interests of the child. Under the unique circumstances presented here, we find that the chancellor manifestly erred in altering the custody of Miller.

¶ 12. The burden of proof in a child custody modification is on the noncustodial parent. Mabus v. Mabus, 847 So.2d 815, 818 (¶ 8) (Miss.2003). The mov-ant, by a preponderance of the evidence, must satisfy a three part test: “(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.” Id. The court is not to use the modification hearing as an excuse to simply re-weigh the Albright factors to determine which parent is better suited at the present time for custody. Sanford v. Arinder, 800 So.2d 1267, 1272 (¶ 16) (Miss.Ct. App.2001). Rather, a child custody change can only be justified if parental behavior that poses a clear danger to the child’s mental or emotional health is present. Morrow v. Morrow, 591 So.2d 829, 833 (Miss.1991). A mere isolated incident will not justify a change of custody, the chancellor must consider the totality of the circumstances. Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984). This means that “the chancellor should find that the overall circumstances in which a child lives have materially changed and are likely to remain materially changed for the foreseeable future.” Id. (emphasis added). The chancellor’s decision should be based on the conditions existing up to and through the trial on the matter. Id. The court must always consider the “totality of the circumstances” affecting the child, and that the “polestar consideration” in determining custody is the best interest and welfare of the child. Sanford, 800 So.2d at 1272 (¶ 15).

¶ 13. We find that the chancellor abused his discretion in transferring custody of Miller from Ginger because he improperly focused on the potential for future problems rather than the presently-existing circumstances of Miller’s home life. The chancellor found that Miller’s future would be dependent on his mother’s ability to refrain from debilitating conduct in the future, and then ruled that this possibility of future debilitating conduct on the part of Ginger required a change of custody. We simply cannot agree. The evidence showed clearly that, at the time of the hearing, Ginger was free of alcohol and drug use, and her counselor at Jolimar testified that there was no reason to suspect that she had relapsed or that she would relapse in the future. Although the chancellor held that Ginger would have to adopt “a modified lifestyle” to avoid future relapses into drug and alcohol use, this finding does not establish that there is an existing change in circumstances when the evidence at trial showed that Ginger has indeed modified her lifestyle accordingly. The only finding the chancellor offered that regarded contemporaneous changed circumstances were the facts that Ginger and Joe continued to fight, and that Ginger still associated with her former drug partner. While these actions can certainly be viewed as warning signs that future detrimental conduct may occur, they are not of themselves conclusive evidence of a currently existing adverse environment that would mandate a change of custody.

¶ 14. Furthermore, the chancellor’s reasoning is undermined by his decision to maintain the existing alternating custody agreement for approximately four months after his judgment was rendered. If, at the time of trial, Ginger’s home was truly the situs of material changed circumstances which were detrimental to Miller, the chancellor’s decision to maintain the alternating custody agreement for an additional four months would certainly magnify any harm to Miller. It is clear, then, that the chancellor’s decision was based not on presently existing circumstances, but either as a punishment for Ginger’s past improvident conduct, or as a preemptive sanction against Ginger’s potential future actions. We hold that this is a misapplication of the standard for modifying child custody, which requires a manifest and ongoing change in circumstances. A chancellor may not modify custody based on his best guess of whether there will be a material changed circumstance in the future.

¶ 15. We are mindful of the chancellor’s concern that Ginger did not complete a recommended secondary aftercare program, that she continues to associate with her former drug partner, that she continues to fight with her husband Joe, and that she currently takes prescription anti-depressant medications. However, counter testimony was also presented that the secondary aftercare program was purely voluntary, and that Ginger had already completed a primary aftercare program; that Ginger’s association with Ramona includes Bible studies; and that Ginger’s fights with her husband are now only verbal, not physical, and have decreased in intensity. Although Ginger discontinued her Alcoholics Anonymous meetings, she testified at trial that she did so because she was receiving sufficient support from her family and church. There was absolutely no evidence presented at trial that she was using alcohol or drugs at the time of the hearing or had done so at any time following her treatment at Jolimar. In fact, Ginger submitted negative drug tests for the months following her release from Jolimar up until the time of trial. It appears, therefore, that the chancellor mistakenly used past misconduct on Ginger’s part to trigger a re-weighing of the Albright factors. This is an act which the chancellor may not perform absent an established and ongoing change in circumstances. Sanford, 800 So.2d at 1272 (¶ 16).

¶ 16. Mississippi law has, however, recognized that a chancellor need not follow the rigid test of finding a material change in circumstances when:

the existing custodial arrangement has shown itself to be actually detrimental to the child’s well-being and the non-custodial parent can, by virtue of subsequent improvement in that parent’s overall situation, demonstrate that he or she offers an alternative custodial arrangement beneficial to the child that did not exist at the time the original custody determination was made.

Hoggatt v. Hoggatt, 796 So.2d 273, 275 (¶ 9) (Miss.Ct.App.2001). This is the holding of Riley v. Doerner, 677 So.2d 740 (Miss.1996), where the Mississippi Supreme Court loosened the formalistic approach to child custody changes in certain unique circumstances. The court in Riley held that, in circumstances where an adverse affect on the child had been shown, or presumed under extreme circumstances, there was no need to make a showing of a materially changed conditions. Riley involved a custodial mother who was employed only sporadically, had no regular source of income, had numerous affairs prior to and following her second marriage, and smoked marijuana. Id. at 742. Following a custody hearing brought by the non-custodial father, the lower court ruled that custody should remain with the mother because, despite the fact that adverse circumstances existed, these circumstances existed when the original determination of custody was made. Id. Thus, the chancellor found that there had not been a material change in circumstances. Id. The chancellor also found that there was no evidence that the harmful circumstances were actually having an adverse affect on the child. Id. On appeal, the Mississippi Supreme Court reversed, finding that the chancellor “is never obliged to ignore a child’s best interest in weighing a custody change; in fact, a chancellor is bound to consider the child’s best interest above all else.” Id. at 745. The court found that when:

the environment provided by the custodial parent is found to be adverse to the child’s best interest, and that the circumstances of the non-custodial parent have changed such that he or she is able to provide an environment more suitable than that of the custodial parent, the chancellor may modify custody accordingly.

Id. at 744. The court also held that “[e]vi-dence that the home of the custodial parent is the site of dangerous and illegal behavior, such as drug use, may be sufficient to justify a modification of custody, even without a specific finding that such environment has adversely affected the child’s welfare.” Id. .

¶ 17. We find that the instant case is distinguishable from Riley. Although the evidence did show that Ginger’s home was the situs of marital discord with her current husband, and that Ginger did use alcohol in her home, these actions did not rise to the level of “dangerous and illegal behavior.” More importantly, the testimony of Ginger and her husband Joe was that all traces of alcohol had been removed from the house at the time of trial, and that the marital discord between the two, while still present, was not as fierce and contentious as it previously had been. Thus, the circumstances which may have existed during July, August, and September of 2002 had subsided by the time Ginger finished her program at Jolimar and at the time of trial. While it is true that Ginger did take Miller with her to the house where she smoked crack cocaine, the evidence established that Ginger was, at the time of the hearing, rehabilitated from her drug use and that there was no reason to believe that she would relapse. Although Ginger still associated with her former drug partner, in whose home she smoked the crack, Ginger testified that their association had devolved into a Bible study, and that Ginger was involved in a church support group. In contrast, the custodial parent in Riley did not claim to have quit her occasional marijuana use, and, when the chancellor in that case ordered a drug test prior to issuance of his final judgment, the mother failed the test. In the instant case, Ginger claims to have stopped her drug use and to be rehabilitated, and her claims are supported by the testimony of her counselor. It is true that the chancellor found that Charles had improved his situation and was able to provide a better environment for Miller, but even giving the chancellor’s findings full deference, this finding alone is insufficient to warrant a change of custody.

¶ 18. Most importantly, we again note that the chancellor’s finding that Miller was adversely affected by the circumstances of his home environment seems to be contradicted by the chancellor’s own determination of custody. The chancellor, in his order dated September 16, 2003, transferred permanent custody of Miller to his father Charles, he nevertheless directed that the joint custody agreement then in effect should continue up until January 1, 2004. This means that, even following the chancellor’s determination of custody, Ginger retained custody of Miller for approximately six weeks before permanent custody was transferred to Charles. We do not believe that the chancellor would have allowed Miller to remain in an existing home environment that was truly detrimental for this additional period of four months. We think a more accurate reflection of the chancellor’s decision is that, because the evidence showed that Ginger was no longer using drugs or alcohol, and Miller’s home situation had improved, the chancellor felt that the conditions would not be harmful to Miller in the four months before the permanent custody change took effect or during the extensive visitation allowed Ginger thereafter. The chancellor emphasized that Miller’s best interest would only be served if Ginger could refrain from the conduct “which exacerbates her addictions.” Therefore, the real issue for the chancellor was not whether there was currently a detrimental environment for Miller, but rather whether Ginger would relapse into her addictions. The chancellor was certainly allowed to consider Ginger’s likelihood of relapse in determining the “totality of the circumstances,” but we find that this was actually the crux of his entire ruling. Since the possibility of relapse was not a material changed circumstance, we find that the chancellor manifestly erred in making his determination of custody on this basis. The effect of the chancellor’s ruling was to punish Ginger for the limited incidents of cocaine use which occurred in July, August, and September of 2002. This is an insufficient basis for a change of custody absent an adverse affect on the child. See Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss.1983) (holding that an isolated instance of adultery committed by a custodial mother is insufficient to justify a change of custody if no resulting adverse affect on the child is shown). Adverse affect on the child may be presumed in certain instances, see Riley, but those circumstances are not present here. In fact, the chancellor found that the detrimental effect on Miller was Ginger’s absence from his life during her time in rehabilitation.

¶ 19. Initial custody arrangements are not to be lightly overturned. A change of custody is a “jolting traumatic experience. It is only that behavior of a parent which clearly posits or causes danger to the mental or emotional well-being of a child (whether such behavior is immoral or not), which is sufficient basis to seriously consider the drastic legal action of changing custody.” Tucker, 453 So.2d at 1297 (quoting Ballard v. Ballard, 434 So.2d 1357, 1360 (Miss.1983)). The chancellor manifestly erred by changing custody of Miller based on the potential for a future material change in circumstances. We share the chancellor’s concerns, however, regarding Miller’s welfare in the event Ginger relapses into drug use. Charles would, of course, be free to petition the chancery court for immediate modification of custody should such relapse occur, and we are confident that the chancery court would rule appropriately. Custody of Miller is hereby reinstated in Ginger pursuant to this opinion.

¶ 20. THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

GRIFFIS, J.,

dissenting.

¶ 21. I respectfully dissent from the majority’s decision to reverse and render.

¶22. As the majority states, custody determinations are within the discretion of the chancellor. Sturgis, 792 So.2d at 1023 (¶ 12). Indeed, chancellors are vested with broad discretion, and this Court will not disturb the chancellor’s findings unless the court was manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard. Andrews v. Williams, 723 So.2d 1175, 1177 (¶ 7) (Miss. Ct.App.1998) (citing Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997)). Here, based on the evidence presented, I cannot find that the chancellor was manifestly wrong, abused its discretion, or applied an erroneous legal standard. Glass v. Glass, 726 So.2d 1281, 1284 (¶ 11) (Miss.Ct.App.1998).

MYERS, P.J., AND CHANDLER, J., JOIN THIS SEPARATE OPINION.

      . The physical violence that occurred in some of these confrontations cannot be underestimated. Joe testified that on one occasion, Ginger ripped his shirt off. On another, Ginger drew a knife on Joe. On another, Ginger threw a laptop computer into the windshield of Joe’s car. The children witnessed many of these fights and were visibly disturbed by what they saw. The domestic violence rose to such a level that the police had to be called on at least one occasion.

      . There was some conflict at trial as to whether Ginger voluntarily checked herself in, or whether she did so in response to threats of divorce from her current husband, Joe Hart-field. It is undisputed that Joe Hartfield had threatened Ginger with divorce at times in the past due to her substance abuse. However, the evidence at trial suggested that Ginger's immediate decision to check into rehab was a voluntary one; the chancellor made no specific finding in this regard.

      . We believe that the evidence adduced at trial simply did not support the chancellor’s finding that the Jolimar records show that Ginger suffered from suicidal tendencies. When Ginger was initially admitted to Joli-mar, she indicated on an entrance form that she had at some point had thoughts of suicide. However, when she was later interviewed by counselors regarding thoughts of suicide, it became clear that she had never taken those thoughts seriously or considered acting on them.

      . Implicit in the chancellor’s holding is his belief that Ginger will likely relapse into her addictions.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Vessie Lynn LEE, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00542-COA.
    Court of Appeals of Mississippi.
    Nov. 22, 2005.
    Rehearing Denied April 11, 2006.

      Matthew W. Kitchens, James W. Kitchens, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, PJ, GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Vessie Lynn Lee was convicted of two counts of statutory rape, four counts of sexual battery and three counts of gratification of lust. He was sentenced to life in prison for each count of statutory rape, thirty years for each count of sexual battery, and fifteen years for each count of gratification of lust. On appeal, Lee asserts the following errors: (1) the trial court erred in allowing the State to amend the indictment, (2) the trial court erred in denying his motion to suppress items seized from his residence, (3) the trial court erred in denying his motion for a medical and forensic examination of J.R.G., (4) the trial court erred regarding the testimony of Connie Evans, (5) the trial court erred regarding the testimony of Jeri Weaver, (6) he received ineffective assistance of counsel, (7) the verdict was against the overwhelming weight of the evidence, and (8) the cumulative effect of these errors denied him his fundamental right to a fair trial.

FACTS

¶ 2. On August 11, 2001, J.R.G., who was fourteen years old at the time of trial, accused Lee of sexually abusing her over an approximate nine month period. At the time the alleged offenses began, J.R.G. was only twelve years old. J.R.G. claimed that Lee forced her to perform oral sex on him and forced her to engage in sexual intercourse on two separate occasions. Based on J.R.G.’s allegations, Lee’s home was searched, his personal items were seized, and his genitals were photographed. Subsequently, Lee was arrested.

¶ 3. Lee was indicted on ten counts of various sex crimes including, Counts I and II statutory rape, Counts III, IV, V, and VI sexual battery, and Counts VII, VIII, IX, and X gratification of lust. The State filed a motion to nolle prosequi Count VIII of the indictment, which was granted by the trial court, leaving only nine counts (Counts I — VII and IX — X). The jury convicted Lee on all counts. He was sentenced to serve life in prison for Counts I and II, with said sentences to run concurrently, thirty years for Counts III, IV, V, and VI, with said sentences to run concurrently with each other but consecutive to the sentences imposed in Counts I and II, and fifteen years for Counts VII, IX, and X, with said sentences to run concurrently with each other but consecutive to the sentences imposed in Counts I and II and Counts III, IV, V, and VI.

¶ 4. Lee filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial, which was denied by the trial court. Lee now appeals to this Court.

ANALYSIS

I. Did the trial court err in allowing the State to amend the indictment?

¶ 5. Counts III, IV, V and VI of the indictment state the following:

Count III
On or about the 3rd day of April, 2002, in the county aforesaid and within the jurisdiction of this court, Vessie L. Lee did willfully, unlawfully and feloniously engage in sexual penetration as defined in section 97-3-97, Fellation, Mississippi Code Annotated (1972), as amended, with [J.R.G.], a child whose age was thirteen (13) years of age, at the time, and her birth date being 10-29-1988, a child who is twenty-four (24) or more months younger then [sic] said Vessie L. Lee who was forty (40) years of age, without her consent, in Madison County, Mississippi, in violation of Mississippi Code Annotated, § 97-3-95(l)(d), (1972), as amended.
Count IV
On or about the 6th day of March, 2002, in the county aforesaid and within the jurisdiction of this court, Vessie L. Lee did willfully, unlawfully and feloniously engage in sexual penetration as defined in section 97-3-97, Fellation, Mississippi Code Annotated (1972), as amended, with [J.R.G.], a child whose age was thirteen (13) years of age, at the time, and her birth date being 10-29-1988, a child who is twenty-four (24) or more months younger then [sic] said Vessie L. Lee who was forty (40) years of age, without her consent, in Madison County, Mississippi, in violation of Mississippi Code Annotated, § 97-3-95(l)(d), (1972), as amended.
Count V
On or about the 28th day of October, 2001, in the county aforesaid and within the jurisdiction of this court, Vessie L. Lee did willfully, unlawfully and felo-niously engage in sexual penetration as defined in section 97-3-97, Fellation, Mississippi Code Annotated (1972), as amended, with [J.R.G.], a child whose age was twelve (12) years of age, at the time, and her birth date being 10-29-1988, a child who is twenty-four (24) or more months younger then [sic] said Vessie L. Lee who was thirty-nine (39) years of age, without her consent, in Madison County, Mississippi, in violation of Mississippi Code Annotated, § 97-3-95(l)(d), (1972), as amended.
Count VI
On or about the 30th day of August, 2001, in the county aforesaid and within the jurisdiction of this court, Vessie L. Lee did willfully, unlawfully and felo-niously engage in sexual penetration as defined in section 97-3-97, Fellation, Mississippi Code Annotated (1972), as amended, with [J.R.G.], a child whose age was twelve (12) years of age, at the time, and her birth date being 10-29-1988, a child who is twenty-four (24) or more months younger then [sic] said Vessie L. Lee who was thirty-nine (39) years of age, %oithout her consent, in Madison County, Mississippi, in violation of Mississippi Code Annotated, § 97-3-95(l)(d), (1972), as amended.

(emphasis added).

¶ 6. Mississippi Code Annotated Section 97-3-95(l)(a) (Rev.2000) states that “[a] person is guilty of sexual battery if he or she engages in sexual penetration with another person without his or her consent.” (emphasis added). Section 97-3-95(l)(d), under which Lee was indicted, states that “[a] person is guilty of sexual battery if he or she engages in sexual penetration with a child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.” Lee contends that the language of Section 97 — 3—95(l)(a), “without her consent,” which was included in the indictment, created confusion for the defense by not providing notice as to what portions of the statute under which he was charged. Lee argues that the indictment was confusing since it was unclear under which subsection to defend, 97-3-95(l)(a) or 97-3-95(l)(d). As a result, Lee filed a motion to quash the indictment as to Counts III, IV, V and VI. The trial court denied the motion and granted the State’s motion to amend. Lee now argues that the trial court erred in allowing the State to amend the indictment since the amendment materially altered a defense that the defendant had under the original indictment. See Griffin v. State, 584 So.2d 1274, 1275 (Miss.1991).

¶ 7. Lack of consent is not an element of this variety of sexual battery. A child under the age of fourteen has no legal ability to consent to such an act. In this context, the language “without her consent” had no legal meaning. Its removal did not deprive Lee of a valid defense. It follows that the trial court had the power to amend the indictment to remove the language “without her consent,” which was not an element of the offense charged and which purported to give the defendant a basis for a nonexistent defense. Furthermore, in each count of the indictment, the exact code section and subsection was noted. Thus, the indictment clearly notified Lee that he was charged with sexual battery as defined in Mississippi Code Annotated Section 97-3-95(l)(d) (Rev.2000). Upon review, we find that Lee was not prejudiced by the amendment. Therefore, the trial court did not err in allowing the State to amend the indictment.

II. Did the trial court err in denying Lee’s motion to suppress items seized from his residence ?

¶ 8. Prior to trial, the defense filed a motion to suppress evidence seized pursuant to the execution of a search warrant on the ground that the affidavit for the warrant and the warrant itself were “legally defective and insufficient” in that they described “the inspection sought by the warrant in such vague terms” that a reasonable person could not “determine what information law enforcement officials were seeking.” It is important to note that neither the search warrant nor the underlying facts and circumstances used to obtain it were included in the record. Thus, Lee’s challenge is not properly before this Court. See McKinney v. State, 724 So.2d 928, 932(¶ 14) (Miss.Ct.App.1998) (citing Branch v. State, 347 So.2d 957, 958-59 (Miss.1977)).

¶ 9. Nonetheless, the trial transcript indicates that the search warrant was specific, despite Lee’s allegation to the contrary. According to the trial transcript, the search warrant describes what the police are looking for as “vibrators, described as being hot pink in color and having a knob on one end to turn it on and off.” Additionally, the search warrant states “one pair of men’s thong underwear with black and white zebra print.” Both the pink vibrator and the black and white thong were found in Lee’s home.

¶ 10. Lee contends that the vibrator and thong should have been excluded as irrelevant. Tools, weapons, and other physical evidence used or usable in the commission of a crime are admissible into evidence, provided they are relevant and not too remote. Bryant v. State, 850 So.2d 1130, 1134(1112) (Miss.Ct.App.2002). The vibrator and the thong were utilized in the defendant’s enticement of the victim, were part of the complete story of these crimes, and corroborated the victim’s testimony. A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Fisher v. State, 690 So.2d 268, 274 (Miss.1996). We do not find that the trial court abused its discretion in refusing to exclude the items from evidence.

¶ 11. Lee also claims that the search warrant is invalid since it was based solely on the uncorroborated information provided by J.R.G. In support of his argument, Lee relies on State v. Woods, 866 So.2d 422, 426(¶ 14) (Miss.2003), which held that an informant unknown to law enforcement giving uncorroborated evidence creates a constitutional problem with a search warrant. However, Lee’s reliance on Woods is misplaced. Woods dealt with a confidential informant who had never provided any evidence to law enforcement authorities and was never questioned about his reliability. Id. Here, law enforcement officers had experience with J.R.G. J.R.G. was not an unknown confidential informant but instead was a victim reporting an offense committed against her. As the court stated in Walker v. State, 473 So.2d 435, 438-39 (Miss.1985):

when information is furnished by an eyewitness rather than from an informant, there is no need to show the party supplying the information was a credible person. The rationale for the victim or eyewitness exception is that the statements of such eyewitnesses are based on their own observation and thus are not likely to reflect mere “idle rumor or irresponsible conjecture.”

For this reason, the trial court properly rejected the defendant’s reliance on Woods.

¶ 12. Lee further argues that a photograph taken of Lee’s genital area should have been excluded based on its prejudicial effect. “The admissibility of photographs rests within the sound discretion of the trial judge. Such discretion of the trial judge runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and extenuation of probative value.” Martin v. State, 854 So.2d 1004, 1007-08(¶ 7) (Miss.2003). The trial judge overruled Lee’s motion in li-mine to exclude the photograph, noting that the defense’s cross-examination of the victim had put her credibility into issue and that the photograph went to the victim’s credibility as well as to the crime itself. The photograph corroborated J.R.G.’s testimony and showed that Lee had a scar on his abdomen and that he shaved his genital area. Upon review, we find that the probative value of the photograph was not substantially outweighed by the danger of unfair prejudice. Thus, we find no error.

¶ 13. We find that the trial court did not err in denying Lee’s motion to suppress items seized in his home. Therefore, this issue is without merit.

III. Did the trial court err in denying Lee’s motion for a medical and forensic examination of J.R.G.?

¶ 14. Lee filed a motion requesting that the trial court order J.R.G. to be physically examined by an independent physician to determine whether she had previously had sexual intercourse. Lee also requested that J.R.G.’s DNA be analyzed in order to determine whether the pink vibrator had her DNA on it. The trial court denied both requests.

¶ 15. Lee did not present the trial court with any authority for the proposition that a victim in a criminal case may be compelled to submit to a medical examination. The cases cited in Lee’s brief to this Court address the propriety of allowing a defendant access to medical records already in existence or allowing the defense to test medical evidence already in existence. For instance, Lee cites Richardson v. State, 767 So.2d 195 (Miss.2000). In Richardson, the defendant contested that there was penetration and therefore wanted to test seminal fluid evidence. Id. at 198(¶ 14). Without the evidence, the case rested almost entirely on the testimony of the twelve-year-old victim. Id. The court found that the State relied upon the evidence that semen was present to support the inference that the defendant did in fact sexually penetrate the victim. Id. at 199(¶ 14). The court held that the DNA evidence was relevant and material, because it could significantly aid the defense by showing that the semen sample found was not the defendant’s, thus eliminating the semen as objective evidence of penetration. Id. at 199(¶ 15). Here, the prosecution relied upon the presence of the pink vibrator to support the inference that because J.R.G. knew of its existence, Lee must have sexually abused her. Lee argues that, as in Richardson, the defense should have been allowed to test the vibrator for J.R.G.’s DNA. However, the DNA in Richardson was found by the state crime lab on one of the slides of material taken from the victim’s vagina as part of the rape kit. Id. at 197(¶ 8). Here, no such DNA evidence existed.

¶ 16. Lee failed to present any evidence to support his position and failed to specifically show how this proposed examination would aid his defense. The authority Lee relies on addresses medical records and medical evidence already in existence. This is a fundamentally different issue from that of forcing a victim to submit to an examination. Thus, the trial court did not err in denying the motion for a medical and forensic examination of J.R.G.

IV. Did the trial court err regarding the testimony of Connie Evans?

¶ 17. While cross-examining Connie Evans, who lived across the street from Lee, defense counsel asked whether she had told Beth Lee, the defendant’s wife, that she did not trust men because Evans’ daughter had been molested by her ex-husband. Evans testified that she had not made such a statement to Beth and stated that she would never discuss anything like this with anyone except with her family. Later, while examining Beth Lee, the defense sought to elicit testimony that Evans had made a statement to Beth about Evans’ feelings toward men in general. The State objected and the trial court ruled that this was inadmissible hearsay. Lee now asserts that this ruling constitutes reversible error.

¶ 18. Evans’ testimony was not essential to the State’s case. She was not the complaining witness nor did she observe any criminal behavior on Lee’s part. Evans testified only that she saw Lee walk J.R.G. from the bus stop to his garage on several occasions. This was straightforward testimony. We fail to see how Evans’ attitude towards or preconceived notions about men would impact the credibility of this testimony. Whether Evans had given this information to Beth would have added little if anything to Lee’s position. Thus, the excluded testimony would be harmless, at best.

¶ 19. Because Evans’ testimony was not crucial, the refusal to allow insubstantial impeachment of this witness is not reversible error. None of the information the statement may have provided contradicted Evans’ testimony in any significant manner such that the interests of justice would demand this Court’s finding an abuse of discretion. See Peyton v. State, 858 So.2d 156, 160(¶ 21) (Miss.Ct.App.2003). Moreover, it is inconceivable that a different result would have been reached had the testimony been allowed.

¶ 20. Lee next argues that the trial court erred by allowing Evans to give improper opinion testimony. Evans testified that she did not think J.R.G. would have made up the allegations against Lee. Defense counsel objected on the grounds that the witness was speculating. Evans’ response came as a result of redirect questioning about her conversation with Beth Lee, which had been brought out by the defense.

Q. (By Mr. Wilkerson) You can’t testify to what she said. You can only testify as to what you told her. What, if anything, did you say to her?
A. I just said, “You need to look at the situation and evaluate what might have happened,” when I talked to her.
Q. What situation were you referring to?
A. The allegations against Mr. Lee and that [J.R.G.] — you know, I don’t think that she would have made it up.

The trial court overruled the objection, finding that the witness was explaining her conversation and testifying as to what she said. The court found that the defense had “brought it out.” After the witness left the stand, outside the presence of the jury, defense counsel moved for a mistrial on the ground that Evans’ statement constituted improper opinion testimony. The State argued that it had not elicited any opinions from the witness, and the court agreed.

¶ 21. An objection must be specific and contemporaneous to preserve an alleged error for review. Waldon v. State, 749 So.2d 262, 268(¶18) (Miss.Ct. App.1999). Moreover, “an objection on one or more specific grounds constitutes a waiver of all other grounds.” Byrom v. State, 863 So.2d 836, 878 (¶ 152) (Miss.2003). The contemporaneous objection lodged below was grounded solely on speculation and thus constituted a waiver of the objection on the ground of improper opinion testimony. The motion for mistrial on this ground was made after the witness left the stand and was thus untimely.

¶ 22. The jury observed J.R.G.’s demeanor and listened to her testimony. The trial judge found that J.R.G. was “probably the most credible witness” he had ever heard. It is therefore unlikely that Evans’ opinion had any effect on the outcome of this case. Assuming arguendo that Evans’ statement was improper opinion testimony, such testimony was harmless. See Whittington v. State, 523 So.2d 966, 975 (Miss.1988).

¶ 23. Upon review, we find that the trial court did not err regarding the testimony of Connie Evans. Therefore, this issue is without merit.

V. Did the trial court err regarding the testimony of Jeri Weaver?

¶ 24. During the testimony of Jeri Weaver, the defense sought to elicit information regarding who Weaver saw at the end of Lee’s driveway on the day Lee was arrested and what they were doing. Weaver is the mother-in-law of appellant Vessie Lee. The State objected on relevancy grounds and an off-the-record bench conference was held. The objection was sustained. Following the testimony of Beth Lee, the defense proffered, outside the presence of the jury, that Weaver would have testified that when she went to Lee’s home immediately after Lee was arrested, she saw J.R.G. and two other children at the end of the driveway laughing. The purpose of the testimony was to show that if J.R.G. was indeed afraid of Lee, as she testified, and if she took the alleged sexual abuse and his resulting arrest as seriously as she claimed, she would not have been at the end of the driveway laughing right after Lee was arrested. The trial judge found the testimony irrelevant and not probative on any of the issues. Lee contends the trial court’s ruling prevented him from impeaching J.R.G. However, in its context, the proffered evidence has no bearing on J.R.G.’s credibility. The alleged laughing occurred after Lee had been removed from the scene, when J.R.G. would have had no reason to be afraid of him. Weaver also would not have been able to testify specifically why J.R.G. and the other children were laughing.

¶ 25. The trial court has broad discretion in determining the relevance of evidence. Bryant, 850 So.2d at 1134(¶ 14). Upon review, we find that the trial court did not err regarding the testimony of Jeri Weaver. Thus, this issue lacks merit.

VI. Did Lee receive ineffective assistance of counsel?

¶ 26. Lee contends he received ineffective assistance of counsel. The standard applied to claims of ineffective assistance of counsel were first articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove ineffective assistance of counsel, Lee must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced his defense. Id. at 687, 104 S.Ct. 2052. The burden of proof rests with Lee. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. To overcome this presumption, “the defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result would have been different.” Id.

¶ 27. ‘With respect to the overall performance of the attorney, counsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.” Howard v. State, 853 So.2d 781, 789 (Miss.2003). “Having a trial strategy negates an ineffective assistance of counsel claim, regardless of counsel’s insufficiencies.” Hall v. State, 735 So.2d 1124, 1127(¶ 10) (Miss.Ct.App.1999).

¶ 28. In his brief to this Court, Lee lists nine deficiencies in his trial counsel’s performance. However, Lee has not overcome the presumption that but for his trial counsel’s unprofessional errors the result would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. For instance, Lee contends that his counsel was deficient in failing to introduce Dr. Thomas L. Wiley’s report. However, this decision could easily be seen a matter of strategy. The medical report indicated that Dr. Wiley “strongly suspect[s] that [J.R.G.] has had sexual contact in the past. However, on examination, this could not be determined 100%.” Lee’s trial counsel could have decided that the report might do more harm than good to Lee’s case, so he did not introduce it. Also, Lee argues that his trial counsel was deficient in withdrawing jury instruction D-37. Again, this decision was purely strategic. Lee’s trial counsel withdrew the instruction after concluding that it might “cut the other way.”

¶ 29. The record shows that Lee’s trial counsel filed numerous pretrial motions and jury instructions, called approximately twenty-two witnesses and zealously cross-examined J.R.G. Thus, Lee has failed to show that he received ineffective assistance of counsel. See Lott v. State, 844 So.2d 502, 505(¶ 8) (Miss.Ct.App.2003). Therefore, this issue is without merit.

VII. Was the verdict against the overwhelming weight of the evidence?

¶ 30. In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the trial court has abused its discretion in failing to grant a new trial. Montana v. State, 822 So.2d 954, 967(¶ 61) (Miss.2002). Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. Id. at 967-68. “[W]e do not reverse criminal cases where there is a straight issue of fact, or a conflict in the facts; juries are impaneled for the very purpose of passing upon such questions of disputed fact, and we do not intend to invade the province and prerogative of the jury.” Thomas v. State, 812 So.2d 1010, 1014(¶ 19) (Miss.Ct.App.2001) (quoting Evans v. State, 159 Miss. 561, 566, 132 So. 563 (Miss.1931)). The unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence. McKinney v. State, 521 So.2d 898, 899 (Miss.1988). “It is well settled in this State that a conviction of rape may be upheld with the uncorroborated testimony of the victim.” Id.

¶ 31. In this case, the victim’s testimony was corroborated by her knowledge of the pink vibrator, the thong underwear, and the appearance of Lee’s genital area. Lee’s attempt to explain this knowledge simply created an issue of fact for the jury to resolve. The fact that the jury believed J.R.G. gives Lee no basis for a valid complaint on appeal. Thus, upon review, we find this issue lacks merit.

VIII. Did the cumulative effect of these errors deny Lee his fundamental right to a fair trial?

¶ 32. Lee lasts contends that his conviction should be reversed on the ground of cumulative error. We disagree. “Where there is no reversible error in any part, there is no reversible error to the whole.” Brown v. State, 854 So.2d 1081, 1086(¶ 18) (Miss.Ct.App.2003) (citing McFee v. State, 511 So.2d 130, 136 (Miss.1987)).

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF COUNTS I AND II STATUTORY RAPE, COUNTS III, IV, V, AND VI SEXUAL BATTERY, AND VII, IX, AND X GRATIFICATION OF LUST AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOR COUNTS I AND II, WITH SAID SENTENCES TO RUN CONCURRENTLY, THIRTY YEARS EACH FOR COUNTS III, IY, V, AND VI WITH SAID SENTENCES TO RUN CONCURRENTLY WITH EACH OTHER BUT CONSECUTIVELY TO THE SENTENCES IMPOSED IN COUNTS I AND II, AND FIFTEEN YEARS EACH FOR COUNTS VII, IX, AND X, WITH SAID SENTENCES TO RUN CONCURRENTLY WITH EACH OTHER BUT CONSECUTIVELY TO THE SENTENCES IMPOSED IN COUNTS I AND II AND COUNTS III, IV, V, AND VI, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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


text:
    MILL CREEK PROPERTIES, INC. and By-Pass Properties, LLC f/k/a PS-BS, LLC, Appellants v. CITY OF COLUMBIA, Mississippi, Appellee.
    No. 2004-CA-02299-COA.
    Court of Appeals of Mississippi.
    Feb. 7, 2006.
    Rehearing Denied Sept. 26, 2006.
    Certiorari Denied Dec. 14, 2006.

      Candance L. Rickman, William E. Andrews, III, Purvis, attorneys for appellants.
    William C. Callender, Columbia, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Mill Creek Properties, Inc. (“Mill Creek”) and Bypass Properties, LLC (“Bypass”) appeal an order of the Marion County Circuit Court that affirmed the City of Columbia’s decision to close a portion of Columbia-Purvis Road. Mill Creek and Bypass assign two errors, (1) whether the court was clearly erroneous in upholding the road closing, and (2) whether the lower court erred in holding they were not entitled to compensation. We find no error and affirm.

FACTS

¶ 2. For many years, Columbia-Purvis Road was one of two main streets into and out of the City of Columbia. It connects Highway 98 to Broad Street, which leads to downtown. Columbia-Purvis Road consists of residences, property owned by the Griner family, Mill Creek’s strip mall, Jack’s Restaurant, and a convenience store. Bypass owns the restaurant and convenience store.

¶ 3. The Griner family sold some of their property to Wal-Mart. The parcel sold did not have access to Columbia-Purvis Road. At the request of the developer, the city extended a road through the Wal-Mart property and the Griners’ property. The city also closed off Columbia-Purvis Road at the Broad Street intersection on May 8, 2003. This action rerouted the previous Columbia-Purvis traffic onto the new Wal-Mart road, named Sumrall Road. Walter Payton Drive was also constructed in order to give access from Sumrall Road to Columbia-Purvis Road.

¶ 4. In January of 2004, the Marion County Circuit Court ordered the city to reopen Columbia-Purvis Road and give notice and a hearing to Mill Creek and Bypass. If necessary, the city was to compensate them. After this decision, the city erected a sign to close off the portion of Columbia-Purvis Road which did not include Mill Creek and Bypass’s properties.

¶ 5. The city did not reopen the road. Instead, it held a hearing on March 15, 2004, and the Board of Aldermen reaffirmed the road closing. The Board determined that Mill Creek and Bypass were not entitled to compensation, because their properties no longer abutted the closed portion of the road. On appeal of the Board of Aldermen’s action, the circuit court affirmed.

STANDARD OF REVIEW

¶ 6. When this Court reviews a decision by a circuit court concerning an agency action, it applies the same standard of review that the lower courts are bound to follow. Miss. Sierra Club v. Miss. Dep’t of Envtl. Quality, 819 So.2d 515, 519(¶ 15) (Miss.2002). We will entertain the appeal to determine whether the order of the administrative agency: (1) was unsupported by substantial evidence; (2) was arbitrary or capricious; (3) was beyond the power of the administrative agency to make; or (4) violated some statutory or constitutional right of the complaining party. Id.

ANALYSIS

I. Was the closing of Columbia-Purvis Road for the public good ?

¶ 7. Mill Creek and Bypass argue that the road closing was not proper, because the Board of Aldermen never determined the closing to be in the public interest and was solely motivated to promote the private interests of Wal-Mart and the Griners. They argue further that the Board predetermined its course of action, prior to the hearing. The city argues that the road closing does not affect Mill Creek and Bypass. Their property does not abut the closed portion of the road, and their property still has adequate access via the new access road, Walter Payton Drive.

¶ 8. Before a municipality may close a public road, it must (1) find the closing is for the public good and (2) compensate abutting landowners for any damages. Miss.Code. Ann. § 21-37-7 (Rev. 2001); Laurel Improvement Co. v. Rowell, 84 Miss. 435, 435, 36 So. 543, 544 (1904). However, a city may not close a road just to benefit a private party. Laurel Improvement, 84 Miss, at 435, 36 So. at 543.

¶ 9. For example, Laurel Improvement Company v. Rowell involved the closing of Post Street by the City of Laurel. Id., 36 So. at 543. The street was closed between East and Pine Streets. Id., 36 So. at 543. Laurel Improvement Company owned the land abutting the north side of the street. Id., 36 So. at 543. H. and R.E. Rowell owned the land abutting the south side of the street. Id., 36 So. at 543. The city not only closed the road, but gave it to Laurel Improvement, to the exclusion of all others. Id., 36 So. at 543. Laurel Improvement then built a fence around the road and erected buildings on it. Id., 36 So. at 543. Moreover, the court found the only reason the street was closed was in order to give it to Laurel Improvement. Id., 36 So. at 543. The court held this action was outside the city’s powers and was intolerable. Id., 36 So. at 543. Public roads should never be closed except when it is for the public good and the government compensates the abutting landowners. Id., 36 So. at 544.

¶ 10. We apply the Laurel Improvement Company rule to this case. The Board’s resolution to approve the road closing found it was for the benefit of the public. Specifically, the Board determined that “the intersection of [Broad Street] and the Columbia-Purvis Road ... impedes the orderly flow of vehicular traffic and constitutes a danger to the safety of the traveling public.” Thus, this Court must review the city’s finding for substantial evidence.

¶ 11. The city points to the affidavit of Darrell Broome, of the Mississippi Department of Transportation (MDOT), and the testimony of Jeff Dungan, the Griners’ engineer. Broome’s affidavit stated the intersection did not conform to MDOT standards for street angles and sight distance. He also stated these concerns were expressed to the city prior to the road closing. Dungan testified about how the Broad Street and Columbia-Purvis intersection did not conform with MDOT standards for street angles. He noted the MDOT design standards are designed to enhance safety and traffic flow.

¶ 12. Indeed, there was substantial evidence to support the city’s finding that Columbia-Purvis Road needed to be closed for safety and traffic reasons. We affirm the circuit court on this point. The question remains whether the city was required to compensate Mill Creek and Bypass before it closed the road.

II. Are Mill Creek and Bypass entitled to compensation?

¶ 13. Mill Creek and Bypass argue that they are entitled to compensation, because they suffered special damages. The circuit court affirmed the city’s finding that Mill Creek and Bypass “no longer” abut the closed portion of the road and held that their claim for damages is now moot.

¶ 14. Generally, a landowner on a partially closed road, whose land is on the opened portion, cannot claim damages if he still has reasonable access to the general system of roads. Miss. State Highway Comm’n v. Vaughey, 358 So.2d 1307, 1309 (Miss.1978). An exception to this rule is if the road closing leaves the landowner in a cul de sac. Id. at 1310 (citing Miss. State Highway Comm’n v. Fleming, 248 Miss. 187, 157 So.2d 792 (1963)). He or she may collect damages. Id.

¶ 15. When Mill Creek and Bypass first challenged the road closing, in January of 2004, the circuit court held they were left in a cul de sac and were entitled to compensation. The circuit court based its de-cisión on a map which indicated that the only access to Columbia-Purvis Road, after the closing, was from Highway 98. All parties agreed that the map was accurate. Later, Mill Creek and Bypass conceded that they were not left on a cul de sac, because Walter Payton Drive gave their property access from Columbia-Purvis Road to Sumrall Road.

¶ 16. The city then erected a second barricade to close off Columbia-Purvis Road north of Walter Payton Drive. In October of 2004, the circuit court ordered that the landowners, who are south of the new access road, were no longer in a cul de sac. There are now two ways to access their portion of Columbia-Purvis Road. Based on this evidence, we find that Mill Creek and Bypass’s properties did not abut the closed portion of the road.

¶ 17. If' a landowner is not abutting the closed portion of the road, he must prove special damages in order to recover. Puyper v. Pure Oil Co., 215 Miss. 121, 134-35, 60 So.2d 569, 573 (1952). Appellants argue that the value of their commercial property has been specially damaged because of diverted traffic flow. Diverting traffic onto a new road is not special damages for which a landowner may recover. Morris v. Miss. State Highway Comm’n, 240 Miss. 783, 789, 129 So.2d 367, 369 (1961). “Such changes are made in the exercise of the police power and do not constitute the taking or damaging of a property right.” Id., 129 So.2d at 369.

When a property owner improves property fronting on a highway he takes a calculated risk that the authorities may find it necessary in improving the highway systems to build new facilities that will divert the traffic from passing in front of his property; and in such cases the property owner is not entitled to damages so long as access to the existing highway remains unimpaired and unrestricted.

Id., 129 So.2d at 369. (emphasis added).

¶ 18. In Morris v. Mississippi State Highway Commission, the property in question fronted Highway 80, near Vicksburg. Id. at 785, 129 So.2d at 367. Interstate 20 was constructed, and traffic flow was diverted onto the new interstate, away from a portion of Morris’ property. Id. at 786-87, 129 So.2d at 368. Morris’s access to Highway 80 remained unchanged, and he could reach the new Interstate 20 from Highway 80. Id., 129 So.2d at 368. The court held Morris was not entitled to damages merely because traffic was diverted onto a new road. Id. at 788, 129 So.2d at 369.

¶ 19. Here, Mill Creek and Bypass complain that a new road was built, and the city closed off a portion of Columbia-Purvis Road to make sure traffic was channeled onto the new Sumrall Road. Like Morris, Mill Creek and Bypass’s access to the original road remains unchanged, and they have reasonable access to the new road. Therefore, they may not be compensated merely because traffic is diverted onto the new Sumrall Road.

¶ 20. Mill Creek and Bypass argue that they are entitled to damages based on the rule in Mississippi State Highway Commission v. Ray, 215 So.2d 569 (Miss.1968). Where access from the road to the land is changed, then a commercial establishment may recover for any damage the limited access caused in the value of the property. Id. at 571. The Ray line of cases deal with situations where the government changed a physical aspect of the existing road immediately in front of the property, which made it more difficult for owners and customers to get to the businesses from the street. Id. at 570.

¶ 21. In Ray, the Valley Motel fronted Highway 80 and had direct access to the highway. Id. The city condemned portions of the motel’s property, including that which immediately fronted the highway. Id. The court described the city’s actions:

After the taking ... a person traveling east to west [on Highway 80], after seeing the Valley Motel, will be able to reach the Valley Motel only by traveling to the interchange at 22nd Avenue, turning right, crossing over a creek bridge, and turning right at a stop light to get on the frontage road, then going back east to the motel, a total distance of about two miles. If a traveler going east decides to go into the Valley Motel when he observes it on his left, he will travel east to the interchange of Tom Bailey Drive with Highways 19 and 45, travel through the interchange, then turn left to get on the service road and return to the Valley Motel, a total distance of about a mile and a half.

Id. The court found Ray was distinguishable from Morris, because in Morris traffic was diverted onto a new road “but no limitation was placed on the existing access” to the original road. Id. at 571. In Ray, “the existing access right have [sic] been taken and more circuitous routes of access substituted.” Id. In other words, if an owner’s right of access from the property to the existing street is altered, then he or she may recover damages.

¶ 22. Ray does not change our holding in this ease. The road immediately abutting Mill Creek and Bypass’s properties was unaltered. They have the exact same access to Columbia-Purvis Road that they had before the road closing. Therefore, they are not entitled to compensation for changed access rights.

¶ 23. Accordingly, we find no error and affirm.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: LEE, P.J.,

text:
    Rebecca COLEMAN, Appellant v. Thomas MALLORY, Appellee.
    No. 2004-CA-02327-COA.
    Court of Appeals of Mississippi.
    April 11, 2006.
    Rehearing Denied Sept. 26, 2006.
    Certiorari Denied Dec. 7, 2006.

      John Thomas Lamar, Senatobia, H.R. Garner, attorneys for appellant.
    Leigh A. Rutherford, Hernando, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Dr. Rebecca Coleman and Thomas Mallory were married on August 10, 1991. Coleman and Mallory had two children during this time, Travis, born on February 6, 1992, and Garrett, born on March 25, 1993. In September 1993, Coleman and Mallory separated. The parties stayed separated until May 1995, when Mallory was arrested, extradited to Georgia and served a term in prison until October 1998. Upon his release Mallory moved back to Coleman’s home in Hernando, Mississippi. In February 2002, Mallory left Coleman and instituted divorce proceedings on September 11, 2003.

¶ 2. A trial was held on March 4, 2004, in the DeSoto County Chancery Court. On March 8, 2004, the chancellor awarded Coleman and Mallory an irreconcilable differences divorce and awarded custody of the couple’s children to Coleman with liberal visitation given to Mallory. The chancellor also awarded Mallory an interest in the marital property totaling $47,125, which included personal property, bank accounts, retirement funds and real property. Coleman was ordered to pay Mallory his interest on or before thirty days from the date of the order, March 8, 2004.

¶ 3. On March 18, 2004, Coleman filed a motion for a new trial. Mallory filed a response to Coleman’s motion for a new trial and also a motion for citation of contempt alleging that Coleman had failed to comply with the chancellor’s order. For various reasons, the motion for a new trial was not heard until November 3, 2004. The chancellor denied Coleman’s motion for a new trial. The chancellor also found Coleman to be in contempt for failure to pay Mallory within thirty days and awarded Mallory over seven thousand dollars in attorney’s fees. The chancellor ordered Coleman incarcerated until the money, including attorney’s fees, was paid to Mallory. Aggrieved, Coleman now appeals to this Court asserting the following: (1) the chancellor erred in awarding Mallory $47,125; (2) the chancellor erred in finding her in contempt; and (3) the chancellor erred in awarding attorney’s fees to Mallory in the contempt action. Finding error in regards to issues two and three, we affirm in part and reverse and render in part.

STANDARD OF REVIEW

¶ 4. When reviewing the decisions of a chancellor, this Court applies a limited abuse of discretion standard of review. McNeil v. Hester, 753 So.2d 1057(¶ 21) (Miss.2000). The findings of the chancellor will not be disturbed “unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Id.

DISCUSSION

I. DID THE CHANCELLOR ERR IN AWARDING MALLORY $47,125?

¶ 5. In her first issue on appeal, Coleman argues that the chancellor erred in dividing the parties’ property, including their home and Coleman’s retirement accounts. In determining the equitable distribution of the parties’ property, the chancellor referred to Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994), and Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994), for guidance. The chancellor determined that the ninety-nine acres in DeSoto County had a value of $200,000 and that Mallory’s contribution consisted of approximately $35,000 for general upkeep and construction of improvements. The chancellor determined that Mallory had a one-sixth interest in the property, which was calculated to be $33,000. The chancellor did take into account the period of Mallory’s incarceration in determining his share in the property.

¶ 6. The chancellor found that Mallory was also entitled to a portion of Coleman’s retirement funds for the period that he was not incarcerated. The amount was calculated to be $9,625. The chancellor also awarded Mallory a portion of the personal property accumulated during the parties’ marriage. This share consisted of $4,500. The chancellor also stated that he took into account Coleman’s actions in placing Mallory’s belongings in a box and leaving them on the road. The total amount awarded to Mallory was $47,125. We cannot find any error on the part of the chancellor in finding such; thus, this issue is without merit.

II. DID THE CHANCELLOR ERR IN FINDING COLEMAN IN CONTEMPT?

¶ 7. In her second issue, Coleman argues that the chancellor erred in finding her in contempt for failure to pay to Mallory the $47,125 within thirty days after the judgment was entered on March 8, 2004. The chancellor stated as follows:

On the 18th day of March, a motion for new trial was filed. However, that does not toll the statute or rather toll the requirements of the judgment of divorce with respect to the 30 days. Now some eight days later it is admitted that that amount has not been paid, nor is there any evidence before the Court that any amount has been arranged to be paid following this hearing. Accordingly, the Court finds that the conduct of the defendant in failing to pay the amount of $47,125 constitutes contempt, and a judgment for that amount is awarded in that amount, and again, constitutes a lien on the property located in DeSoto County, Mississippi, described in that judgment of divorce.

¶ 8. However, Mississippi Rule of Civil Procedure 62(a) states that “no execution shall be issued upon a judgment nor shall proceedings be taken for its enforcement until the expiration of ten days after the later of its entry or the disposition of a motion for a new trial.” The comment to Rule 62 further states that this stay prevents the enforcement of a judgment as defined in Rule 54(a). M.R.C.P. 62 cmt. See Bruce v. Bruce, 587 So.2d 898 (Miss. 1991) (Rule 59 motions stay the running of the thirty day time period for appeal purposes and for the enforceability of the judgments); Davidson v. Hunsicker, 224 Miss. 203, 79 So.2d 839 (1955) (judgment is not final until motion for a new trial is overruled). The chancellor clearly erred in finding Coleman in contempt; thus, we reverse and render on this issue.

III. DID THE CHANCELLOR ERR IN AWARDING ATTORNEY’S FEES TO MALLORY IN THE CONTEMPT ACTION?

¶ 9. As we find that the chancellor erred in citing Coleman for contempt, we also find that the award of attorney’s fees to Mallory was improper and should likewise be reversed.

¶ 10. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE APPELLEE.

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


author: CHANDLER, J.,

text:
    Jason W. FREEMAN, Appellant v. UNIVERSITY OF MISSISSIPPI MEDICAL CENTER, Appellee.
    No. 2005-CA-00223-COA.
    Court of Appeals of Mississippi.
    April 25, 2006.
    Rehearing Denied Aug. 29, 2006.
    Certiorari Denied Dec. 7, 2006.

      Bill Waller, attorney for appellant.
    Joseph L. McNamara, John Michael Coleman, attorneys for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On September 2, 2000, Jason Freeman was involved in a motor vehicle accident and was transported to the University of Mississippi Medical Center (UMMC) were he claims he sustained further injuries as a result of the UMMC staffs negligence. Freeman sent UMMC a notice of claim on September 19, 2002, and filed a complaint on January 14, 2003. UMMC filed a motion to dismiss claiming that the suit should be barred by the one year statute of limitations. The court granted the motion and Freeman now appeals, raising the following issues:

I. WHETHER THE DISCOVERY RULE APPLIES TO FREEMAN’S CLAIM
II. WHETHER THE COURT ERRED IN REFUSING FREEMAN’S MOTION TO AMEND HIS COMPLAINT
III. WHETHER THE COURT ERRED IN RULING THAT THE STATUTE OF LIMITATIONS BARRED FREEMAN’S COMPLAINT
IV. WHETHER THE COURT ERRED IN DENYING FREEMAN’S MOTION TO WITHDRAW OR AMEND HIS REQUEST FOR ADMISSIONS
V. WHETHER THE COURT ERRED IN STRIKING THE AFFIDAVITS SUBMITTED BY FREEMAN

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On September 2, 2000, Jason Freeman was involved in a car accident in which he received near fatal injuries. As a result, Freeman was transported to UMMC for treatment. After regaining consciousness, Freeman was advised by a treating physician that his spine was so injured that he would require surgery to regain use of his lower extremities or he would be required to remain bedridden for approximately six weeks. Freeman chose to remain bed ridden for six weeks believing that remaining bedridden would cure the fractures to his spinal column. At that time, Freeman claims he had normal feelings in his lower extremities and his nervous system was normal.

¶ 4. Several days later, the exact date is unknown, an assistant to the nurses came into Freeman’s room to perform routine care and change the bed linens. Freeman claims that the assistant abruptly grabbed the changing pad and without warning forcibly rolled Freeman over on his side causing excruciating pain. Freeman claims he became instantly paralyzed from the waist down.

¶ 5. Approximately two days after this event, on September 9, 2000, Freeman underwent surgery on his back. Freeman had an additional surgery on his back on September 12, 2000. On September 29, 2000, Freeman was discharged from UMMC and was instructed to undergo physical therapy treatments. Freeman claims that he was discharged prematurely because he did not have the financial resources to pay the charges required by the hospital.

¶ 6. Freeman alleges that he was repeatedly advised that he would regain the full use of his lower extremities with proper care and therapy. However, the paralysis persisted. On July 29, 2002, the treatment was completed and Freeman was totally and permanently disabled. Freeman claims it was at this time that he was first informed of the trauma induced while he was a patient at UMMC.

¶ 7. Freeman filed a statement of claim on September 19, 2002 and filed his complaint alleging medical negligence against UMMC on January 14, 2003. In his complaint, Freeman states that he was “advised on or about March 10, 2001, that all treatments and curative effort had been completed and his spinal cord injury and the related physical defects in his body could not be cured, and he was permanently and totally disabled.” Therefore, UMMC alleges that Freeman should have known the full extent and cause of his injuries no later than March 10, 2001, and filed a motion to dismiss claiming that the suit should be barred by the one year statute of limitations. Freeman did not respond to the motion.

¶ 8. On August 4, 2003, at the hearing on the motion to dismiss, Freeman requested more time to respond and the court granted the request. On August 8, 2003, Freeman filed a response to the motion to dismiss which included several affidavits as well as untimely responses to UMMC’s requests for admissions and interrogatories. Freeman also filed a motion for leave to file an amended complaint alleging that the original complaint contained a deficiency in that the original complaint stated the discovery date was March 10, 2001. Freeman claims this is misstatement and inadvertent error by counsel and the correct discovery date was July 29, 2002.

¶ 9. Thereafter, UMMC moved to strike the affidavits, have the requests for admissions deemed admitted and to strike the plaintiffs responses to interrogatories. The trial court held the requests for admissions should be admitted under Rule 36 of the Mississippi Rules of Civil Procedure. Additionally, the trial court denied Freeman’s motion to amend the complaint stating that the motion “appears to have been with the intent to circumvent the effects of summary judgment.”

¶ 10. On December 15, 2004, the court granted a motion for summary judgment under Rule 56 of the Mississippi Rules of Civil Procedure in favor of UMMC. The court held that the motion to dismiss under Rule 12(b)(6) was converted into a Rule 56 motion because the court considered evidence outside the pleadings. Nevertheless, the court held that Freeman’s claims “based upon medical negligence are barred by the applicable statute of limitations, therefore, there are no genuine issues of material fact and [UMMC] is entitled to judgment as a matter of law.”

STANDARD OF REVIEW

¶ 11. A summary judgment should only be granted when the trial court finds that the plaintiff would be unable to prove any facts to support his claim. Delahoussaye v. Mary Mahoney’s Inc., 696 So.2d 689, 690 (Miss.1997). This court reviews a motion for summary judgment de novo. Id. The lower court’s decision will be reversed only if it appears that there are no remaining triable issues of fact, when the facts are viewed in the light most favorable to the nonmoving party. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207(¶ 12) (Miss.1999).

LAW AND ANALYSIS

I. WHETHER THE DISCOVERY RULE APPLIES TO FREEMAN’S CLAIM

¶ 12. It is uncontested that the Mississippi Tort Claims Act controls this action because the alleged medical negligence occurred by an employee of UMMC. The applicable statute of limitations under Mississippi Code Annotated section 11-46-11(3) (Rev.2002) provides that “[a]ll action brought under the provisions of this chapter shall be commenced within one (1) year after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based.” The original complaint alleged that the accident occurred on September 2, 2000, and several days later the alleged medical negligence occurred. The surgery to stabilize Freeman’s spine was on September 9, 2000. Therefore, the date of the alleged tortious act would be sometime between September 2, 2000, and September 9, 2000, and the statute of limitations would run one year from that date.

¶ 13. Freeman filed his statement of claim on September 19, 2002, more than two years after the alleged tortious act. Freeman did not file his complaint until January 14, 2003. In the original complaint, Freeman alleged that he did not discover his injury until March 10, 2001. Under the discovery rule, Freeman contends that the claim does not arise under the statute until the cause of action is discovered. UMMC contends that the discovery rule does not apply because the injury to Freeman was not latent and, therefore, the statute of limitations ran between September 2, 2001, and September 9, 2001.

¶ 14. The trial court did not specifically address whether or not Freeman sustained a latent injury. The trial court stated “based upon the Plaintiffs Complaint, the date on which the Plaintiff can reasonably be said to have had knowledge of the injury itself, the cause of the injury and the causative relationship between the injury and the conduct of UMC was March 10, 2001.” The trial court found that the claim was barred by the statute of limitations even if the discovery rule was applied, based on the date stated in Freeman’s original complaint.

¶ 15. This Court must determine whether the discovery rule applied. The Mississippi Supreme Court has held that the discovery rule can apply to Tort Claims Act actions. Robinson, 732 So.2d at 207(¶ 16). The discovery rule provides an exception to the statute of limitations. The statute of limitations does not begin to run for people who do not know of their injury until they “can reasonably be held to have knowledge of the injury or disease.” Owens-Illinois, Inc. v. Edwards, 573 So.2d 704, 709 (Miss.1990). However, the injury must be a latent injury for the discovery rule to apply. Chamberlin v. City of Hernando, 716 So.2d 596, 601(¶ 18) (Miss.1998). Therefore, this Court must determine whether Freeman’s injury was latent in order to determine the applicable date the claim arose.

¶ 16. A latent injury is an injury in which the “plaintiff will be precluded from discovering harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question ... [or] when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” Staheli v. Smith, 548 So.2d 1299, 1303 (Miss.1989). Consider Freeman’s version of the alleged tortious act:

[A]n assistant to the nurses on duty came into the Appellant’s room to perform routine care, including the changing of his bed linens. When this aid [sic] arrived in the room, the Appellant was lying flat on his back and the aid [sic] suddenly grabbed the changing pad, and without warning forcibly rolled the Appellant over on his left side in a rather jerking and violent manner causing immediate excruciating pain in his back and forced the Appellant to brace himself against the side rail of the bed. These abrupt acts were carried out without notice or warning and in addition to unbearable pain, be [sic] became instantly paralyzed from the waist downward.

It is not unrealistic to expect that Freeman could have perceived the injury at the time of the wrongful act. We hold that there was not a latent injury in this case. Therefore, the action is time barred because the statute of limitations ran between September 2, 2001, and September 9, 2001.

II. WHETHER THE COURT ERRED IN REFUSING FREEMAN’S MOTION TO AMEND HIS COMPLAINT

¶ 17. The trial court denied Freeman’s motion to amend the complaint to change the discovery date. This issue is without merit because the discovery rule does not apply.

III. WHETHER THE COURT ERRED IN RULING THAT THE STATUTE OF LIMITATIONS BARRED FREEMAN’S COMPLAINT

¶ 18. We find that Freeman’s injury was not latent and, therefore, the statute of limitations ran between September 2, 2001, and September 9, 2001. Therefore, the action was not timely filed and the claim should be time barred. Consequently the last two issues are without merit.

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

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


author: MYERS, P.J.,

text:
    Timothy L. FULKS, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01673-COA.
    Court of Appeals of Mississippi.
    May 2, 2006.
    Rehearing Denied Sept. 12, 2006.
    Certiorari Denied Dec. 7, 2006.

      Mark Andrew Cliett, West Point, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Timothy L. Fulks was found guilty of transfer of a controlled substance in the Circuit Court of Clay County. Fulks was sentenced as a habitual offender which imposed a sentence of sixty years not to be reduced, suspended or eligible for probation or parole, in the custody of the Mississippi Department of Corrections, in accordance with Miss.Code Ann. § 41-29-147(Rev.2004). Fulks was also fined two million dollars. Aggrieved by the ruling of the trial court, Fulks appeals raising the following five issues:

I. WHETHER OR NOT THE VERDICT WAS CONTRARY TO THE LAW AND AGAINST THE OVERWHELMING WEIGHT OF THE SUBSTANTIVE EVIDENCE PRODUCED AT TRIAL.
II. WHETHER OR NOT THE COURT ERRED IN ALLOWING THE SUBSTANCE ALLEGED TO BE CRACK COCAINE TO BE ENTERED INTO EVIDENCE WITHOUT THE PROPER CHAIN OF CUSTODY HAVING BEEN ESTABLISHED.
III. WHETHER OR NOT THE REPRESENTATION OF FULKS BY HIS ATTORNEY OF RECORD AT THE TRIAL OF THIS MATTER WAS INEFFECTIVE.
IV. WHETHER OR NOT THE SENTENCE IMPOSED BY THE TRIAL COURT OF SIXTY YEARS WITHOUT THE POSSIBILITY OF PAROLE IS UNCONSTITUTIONALLY DISPROPORTIONATE AND EXCESSIVE IN VIEW OF FULKS’ CONVICTION FOR SALE OF A SINGLE ROCK OF COCAINE.
V. WHETHER OR NOT THE CUMULATIVE EFFECT OF THE ERRORS AT TRIAL DENIED THIS DEFENDANT A FUNDAMENTALLY FAIR TRIAL AS GUARANTEED BY THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS.

FACTS

¶ 2. Roosevelt Purnell, a confidential informant working with the Mississippi Bureau of Narcotics, was wired with a video camera when he purchased crack cocaine from Fulks on July 10, 2002. Fulks was indicted for the sale of a controlled substance. During the first trial, Purnell testified against Fulks. Fulks’s attorney was allowed to cross-examine Purnell thoroughly. Fulks’s first trial resulted in a mistrial as a result of a hung jury. Before the second trial began, Purnell died; therefore, he was unavailable to testify. Purnell’s testimony from the first trial’s transcript was read into evidence during the second trial. The second trial in July of 2004 resulted in Fulks being found guilty of the sale of a controlled substance and being sentenced as a habitual offender to serve sixty years in the custody of the Mississippi Department of Corrections and to pay two million dollars in fines.

I. WHETHER OR NOT THE VERDICT WAS CONTRARY TO THE LAW AND AGAINST THE OVERWHELMING WEIGHT OF THE SUBSTANTIVE EVIDENCE PRODUCED AT TRIAL.

¶ 3. Fulks argues that his guilty verdict was contrary to the evidence produced at trial. Fulks asserts that his entire case turned upon the credibility of the confidential informant, Roosevelt Purnell. Fulks argues that Purnell’s testimony from the previous trial should not have been allowed into evidence, because Fulks was not able to cross-examine Purnell and the jury was unable to observe Purnell’s demeanor.

¶ 4. When evaluating a motion for new trial we view the evidence in the light most favorable to the verdict and will only grant a new trial in exceptional cases where the evidence preponderates heavily against the verdict. Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005). The verdict will stand unless by allowing this would sanction an unconstitutional injustice. Id. Fulks’s assertion is essentially regarding the admittance of Purnell’s testimony into evidence. Therefore, the trial judge possesses a great deal of discretion as to the relevancy and admissibility of evidence. Farmer v. State, 770 So.2d 953, 958(¶ 14) (Miss.2000). This Court will not reverse the judge’s ruling unless he abuses his discretion so as to be prejudicial to the accused. Id.

¶ 5. Rule 804(a)(4) of the Mississippi Rules of Evidence permits hearsay into evidence when the declarant is unavailable because of death. Rule 804(b)(1) goes further to state that former testimony of the unavailable witness may be read into evidence when that witness had been previously cross-examined. The prosecution has the burden of demonstrating that the witness is unavailable. Ohio v. Roberts, 448 U.S. 56, 74-74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The State presented Shane Lamkin from the Mississippi Bureau of Narcotics to testify regarding the death of Purnell. The United States Supreme Court articulated a two-prong test in determining the admissibility of an unavailable witness; first, the prosecution must establish the declarant as unavailable, and second, once the first is established the statement must be accompanied by “idicia of reliablility.” Id. at 65, 100 S.Ct. 2531. (quoting Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972)). Purnell testified during the first trial where he was thoroughly cross-examined by Fulks’s attorney. When the transcript of prior testimony of an unavailable witness reflects extensive cross-examination, the former testimony is admitted. De La Beckwith v. State, 707 So.2d 547, 604 (¶ 233) (Miss.1997). The judge did not abuse his discretion in allowing this evidence under this hearsay exception.

II. WHETHER OR NOT THE COURT ERRED IN ALLOWING THE SUBSTANCE ALLEGED TO BE CRACK COCAINE TO BE ENTERED INTO EVIDENCE WITHOUT THE PROPER CHAIN OF CUSTODY HAVING BEEN ESTABLISHED.

¶ 6. Fulks argues that the trial court erred in allowing the crack cocaine to be admitted into evidence, because Pur-nell was not there to testify to the chain of custody. However, Purnell’s testimony from the previous trial was read into evidence, and Fulks was allowed to fully cross-examine him.

¶7. The standard of review of admission of evidence is abuse of discretion. Robinson v. State, 758 So.2d 480, 488(¶ 31) (Miss.Ct.App.2000). The judge is empowered to determine which evidence is admissible and unless his discretion is abused and has a prejudicial effect on the accused, then the ruling of the lower court is affirmed. Francis v. State, 791 So.2d 904, 907(¶ 7) (Miss.Ct.App.2001).

¶ 8. The proper test to determine whether or not there has been a showing of the proper chain of custody of the evidence is whether there is a reasonable inference of likely tampering with the evidence. Williams v. State, 794 So.2d 181, 184(¶ 10) (Miss.2001). The State must satisfy the trial court that there is no reasonable inference of tampering with evidence, but this state’s law has never required the proponent of the evidence to produce every handler in order to prove chain of custody. Butler v. State, 592 So.2d 983, 985 (Miss.1991). However, Fulks has the burden of producing evidence that the chain of custody has been broken. Hemphill v. State, 566 So.2d 207, 208 (Miss.1990). Fulks asserts that since Purnell is not present to testify then the chain of custody is not satisfied, but Purnell’s testimony from the first trial was read into evidence along with the cross-examination by Fulks’s attorney. Fulks has failed to prove a break in the chain of custody in this case, which requires more than mere possibilities. Spann v. State, 771 So.2d 883, 894(¶ 26) (Miss.2000).

III. WHETHER OR NOT THE REPRESENTATION OF FULKS BY HIS ATTORNEY OF RECORD AT THE TRIAL OF THIS MATTER WAS INEFFECTIVE.

¶ 9. In order to prove ineffective assistance of counsel, Fulks must prove by a preponderance of the evidence that (1) counsel’s performance was defective, and (2) the defect was so prejudicial that it prevented Fulks from receiving a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Moody v. State, 644 So.2d 451, 456 (Miss.1994). The proper standard that is required to show prejudice requires Fulks to prove that there is a reasonable probability that, but for counsel’s errors, the trial court’s result would have been different. Strickland, 466 U.S. at 669, 104 S.Ct. 2052. In order to successfully claim ineffective assistance of counsel, the defendant must meet the two-pronged test set forth in Strickland. Id. at 687, 104 S.Ct. 2052. The Strickland test requires a showing of (1) a deficiency of counsel’s performance (2) sufficient to constitute prejudice to the defense. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). The burden is on Fulks to prove both prongs of the test. Id.

¶ 10. Fulks argues that his attorney failing to renew his motion for directed verdict at the close of all the evidence resulted in ineffective assistance of counsel. However, it was not ineffective assistance of counsel for Fulks’s attorney to fail to move the trial court for a directed verdict at the close of all the evidence, because Fulks’s attorney did file a post-trial motion for JNOV or, in the alternative, for a new trial. Simon v. State, 857 So.2d 668, 689(¶ 56) (Miss.2003).

¶ 11. Fulks has failed to meet the two-prong test set out in Strickland. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Fulks has the burden of proof for the first prong and “there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” Id. at 689, 104 S.Ct. 2052. Fulks still has the burden of proof under the second prong even if counsel’s conduct is “professionally unreasonable,” and the judgment still stands “if the error had no effect on the judgment.” Id. at 691, 104 S.Ct. 2052. Fulks has not met this heavy burden by showing any evidence that results in a deficiency in counsel’s performance and that is sufficient to prejudice the defense. Id. Fulks was entitled to a fair trial, not a perfect one, nor was he entitled to a constitutionally errorless counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988). This issue is without merit.

¶ 12. Although we find Fulks’s issue regarding ineffective assistance of counsel to be meritless, we are mindful of the Mississippi Supreme Court’s ruling in Read v. State. 430 So.2d 832, 841 (Miss.1983). This procedure requires us to do the following:

[Cjonduct a thorough review of the record to see whether a determination can be made from the record that counsel’s performance was constitutionally substandard. “Assuming that the Court is unable to conclude from the record that defendant’s trial counsel was constitutionally ineffective,” the court is directed to consider any other issues raised in the appeal and, assuming no reversible error is found among them, to affirm “without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction relief proceedings.”

Wash v. State, 807 So.2d 452, 461(¶34) (Miss.Ct.App.2001) (quoting Read, 430 So.2d at 841). We have also held in this regard:

We should reach the merits on an ineffective assistance of counsel issue on direct appeal only 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.” Colenburg v. State, 735 So.2d 1099, 1101 (Miss.Ct.App.1999). If the issue is not examined because of the state of the record, and assuming the conviction is affirmed, the defendant may raise the ineffective assistance of counsel issue in post-conviction relief proceedings. Read, 430 So.2d at 841.

Pittman v. State, 836 So.2d 779, 787(¶ 39) (Miss.Ct.App.2002).

Since the record was not clear in order to determine whether Fulks’s counsel was deficient, this issue is affirmed without prejudice so that Fulks may pursue this matter under the post-conviction relief statute.

IY. WHETHER OR NOT THE SENTENCE IMPOSED BY THE TRIAL COURT OF SIXTY YEARS WITHOUT THE POSSIBILITY OF PAROLE IS UNCONSTITUTIONALLY DISPROPORTIONATE AND EXCESSIVE IN VIEW OF FULKS’ CONVICTION FOR SALE OF A SINGLE ROCK OF COCAINE.

¶ 13. Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute. Nichols v. State, 826 So.2d 1288, 1290(¶ 10) (Miss.2002). A sentence that does not exceed the maximum term set by statute cannot be disturbed upon appeal. Fleming v. State, 604 So.2d 280, 302 (Miss.1992).

¶ 14. Fulks made no objection to his sentence in the trial court, and objections to sentence cannot be made initially on appeal. Peterson v. State, 740 So.2d 940, 950(¶ 30) (Miss.Ct.App.1999). Since Fulks did not object to his sentence as being-unconstitutional in the trial court, he is proeedurally barred from raising this allegation on appeal. Reed v. State, 536 So.2d 1336, 1339 (Miss.1988); Billiot v. State, 454 So.2d 445, 455 (Miss.1984); Taylor v. State, 452 So.2d 441, 450 (Miss.1984).

¶ 15. Regardless of the procedural bar, Fulks was sentenced under Mississippi Code Annotated § 41 — 29—139(b)(1) (Rev. 2005) which states:

In the case of controlled substances classified in Schedule I or II, as set out in Sections 41-29-113 and 41-29-115, except thirty (30) grams or less of marihuana, and except a first offender as defined in section 41-29-149(e) who violates subsection (a) of this section with respect to less than one (1) kilogram but more than thirty (30) grams of marihuana, such person may upon conviction, be imprisoned for not more than thirty (30) years and shall be fined not less than Five Thousand Dollars ($5,000.00) nor more than One Million Dollars ($1,000,-000.00) or both.

¶ 16. Cocaine is a Schedule II controlled substance under Mississippi Code Annotated. § 41-29-115(a). Fulks had two previous felonies, one for burglary of a building and the other for the sale of cocaine. Therefore, Fulks was sentenced as a habitual offender in accordance with Mississippi Code Annotated § 41-29-147 and § 99-19-81. Therefore, the trial court sentenced Fulks to sixty years to serve in the custody of the Mississippi Department of Corrections and a two million dollar fine.

¶ 17. The supreme court has held that a sentence which does not exceed statutory limits is not cruel or unusual punishment. Baker v. State, 394 So.2d 1376, 1378 (Miss.1981). In Stromas v. State, the Mississippi Supreme Court has ruled that “[d]rug offenses are very serious and the public has expressed grave concern with the drug problem. The legislature has responded in kind with stiff penalties for drug offenders. It is the legislatures prerogative and not this Court’s to set the length of sentences.” Stromas v. State, 618 So.2d 116, 123 (Miss.1993).

¶ 18. When the trial judge imposes a sentence within the statutory guideline, the sentence will generally be upheld and will not be thought to invoke the Eighth Amendment right against cruel and unusual punishment. Peterson v. State, 740 So.2d 940, 950(¶ 31) (Miss.Ct.App.1999).

V. WHETHER OR NOT THE CUMULATIVE EFFECT OF THE ERRORS AT TRIAL DENIED THIS DEFENDANT A FUNDAMENTALLY FAIR TRIAL AS GUARANTEED BY THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS.

¶ 19. Fulks argues cumulative errors by the trial court denied him a fair trial. We have found no errors occurred in this case. Where there is no error as to any part, there can be no reversible error as a whole. See McFee v. State, 511 So.2d 130, 136 (Miss.1987).

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF SIXTY YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF TWO MILLION DOLLARS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

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