author: BARNES, J., for the Court.

text:
    Steven Michael BAKER a/k/a Stephen Michael Baker, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-KA-02137-COA.
    Court of Appeals of Mississippi.
    June 28, 2005.
    Rehearing Denied Dec. 13, 2005.
    Certiorari Denied June 1, 2006.

      Ross Parker Simons, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., CHANDLER and BARNES, JJ.
   BARNES, J., for the Court.

¶ 1. This case comes before the Court as an appeal from the conviction of Steven Baker of sexual battery of a child under the age of fourteen. Convicted by a jury in the Circuit Court of Jackson County, Baker has appealed raising four issues. Finding these issues to be without merit, we affirm.

STATEMENT OF FACTS, COURSE OF PROCEEDINGS AND DISPOSITION IN THE COURT BELOW

¶ 2. On June 22, 2002, Ms. Jean Roe took her granddaughter, Jane Doe, to Singing River Hospital after the child provided Roe with information which led her to believe that Jane had been the victim of a sexual assault. Jane, age nine, informed emergency room physician Dr. Steven Demetropoulos that her sister’s husband, Steven Baker (“Baker”), and his brother had “put their thing inside her in her area where she urinates, and they have done this over some period of time. It’s hard for her to quantify, she thinks about a year.” Dr. Demetropoulos performed a limited examination of Jane. While there were no obvious tears or abrasions, Jane’s hymenal ring was missing. Dr. Demetro-poulos made a diagnosis of “acute alleged sexual abuse.”

¶ 3. After the hospital visit, Jane was taken to the Pascagoula Police Department where she was interviewed by Detective Sergeant Sheila Jenkins, who specializes in sexual assault cases. Jane informed Jenkins that Steven Baker had put his “thing,” or penis, in her private parts, or vagina, on more than one occasion. Based on these allegations, Baker was arrested and, after he had executed a Miranda rights and waiver form, interviewed by Detective Jenkins. During the videotaped interrogation, Detective Jenkins misrepresented several matters to Baker: first, that everything she told him was true; second, that Baker’s stepdaughter had also accused him of sexual abuse, and third, that Baker’s brother had accused him of sexual abuse of Jane. While Baker initially denied all allegations of abusing either Jane or his stepdaughter, approximately twenty minutes into the interview, he admitted that in “May of last year,” he had molested, but not penetrated, Jane. Ten minutes later, Baker retracted the earlier admission and requested a polygraph test and rape kit test. When Detective Jenkins was leading Baker back to his cell, he indicated a desire to continue the interview. Shortly thereafter, Baker admitted that he had sexual intercourse with Jane “maybe twice.” Specifically, Baker admitted that “two to three months ago,” he “got aggravated” with Jane when he had to call her several times to come inside. Telling Jane that “this was a punishment,” Baker had intercourse with her but stopped when Jane complained of the pain. Baker admitted that the following day he again touched Jane inappropriately but denied any penetration; he stated that this second incident, with no penetration, was the same as he related in his earlier admission. Baker adamantly continued to deny that he had ever touched his stepdaughter in any inappropriate manner.

¶ 4. On August 14, 2002, Baker was indicted on two counts of sexual battery upon a child under the age of fourteen; the indictment alleged the battery to have occurred “on or about from 2000 thru June 22, 2002.” Each count of the indictment was identical in wording, stating that Baker:

did willfully, purposely, unlawfully and feloniously commit Sexual Battery upon [Jane], a child who was at the time in question under the age of 14 years, and Steven M. Baker was at the time 24 months older than [Jane], by engaging in the act of sexual penetration, to wit: by placing his penis into her vagina.

¶ 5. Baker proceeded to trial on July 16, 2003. The trial court denied Baker’s motion to suppress his videotaped confession. Testimony was then taken from Roe, Dr. Demetropoulos, and Jane, who testified that Baker put “his thing” inside her private parts more than one time. Trial recessed for the evening, but Baker did not return to court the following morning as instructed. The trial judge briefly recessed the proceedings to allow defense counsel to telephone Baker. Unable to reach Baker by phone, his counsel objected to proceeding with the trial in the absence of his client; counsel argued that there was no proof at that point that Baker had voluntarily absented himself from trial. The judge postponed trial for another half hour and directed the prosecution to check with local hospitals and law enforcement to determine whether there was some legitimate reason for Baker’s absence. Baker’s bail bondsman arrived and represented to the court that his office had called Baker’s father and had been informed that Baker was dropped off at 8:30. At ten o’clock, the prosecution reported that inquiries to local hospitals indicated that no one matching Baker’s name or description had been there for any purpose. Defense counsel’s renewed motion for mistrial or continuance was denied. Shortly thereafter, Baker’s father appeared in court and represented that “my oldest son came and got my younger son during the night last night and headed towards Panola County. I called the sheriffs department to have them arrested, whatever, but I have to have the bail bondsman to send the proper paperwork.”

¶ 6. The trial proceeded with Detective Jenkins testifying as to her interviews of Jane and Baker. Baker’s videotaped confession to Jenkins was admitted over objection by Baker’s counsel, and Baker was convicted, in absentia, of one count of sexual battery. At the August 1, 2003, sentencing hearing, Baker admitted that he “did flee” during trial because he was afraid of never seeing his family again except from behind a glass window. The minimum sentence being twenty years’ imprisonment and the maximum being life imprisonment, the trial court sentenced Baker to thirty years, without possibility of parole or any form of early release.

¶ 7. At the hearing on Baker’s motion for JNOV or, in the alternative, a new trial and for post-conviction bail, Baker again admitted that he had voluntarily absented himself from trial. Baker stated that he “ran” out of “pure fear” when his attorney informed him that “he actually felt that you would sentence me to dual life sentences for both counts that I had facing.” The court denied the motion in all respects. Subsequently, Baker’s trial counsel, Robert J. Knochel, was released as attorney of record, and Ross Simons was appointed to represent Baker on appeal. Baker timely perfected his appeal to this Court.

ISSUES AND ANALYSIS

I. WHETHER BAKER WAS DENIED DUE PROCESS WHEN FORCED TO DEFEND AGAINST AN INDICTMENT WHEN THE TIME FRAME FOR THE CRIME CHARGED SPANNED ONE-AND-A-HALF TO TWO-AND-A-HALF YEARS.

¶ 8. The purpose of an indictment is to inform the criminal defendant “with some measure of certainty as to the nature of the charges brought against him so that he may have a reasonable opportunity to prepare an effective defense and to enable him to effectively assert his constitutional right against double jeopardy in the event of a future prosecution for the same offense.” Moses v. State, 795 So.2d 569, 571(¶ 13) (Miss.Ct.App.2001) (citing U.S. v. Gordon, 780 F.2d 1165, 1169 (5th Cir.1986)). The indictment, under which Baker was charged, identified the time frame of the crime as “on or about from 2000 thru June 22, 2002.” Baker correctly asserts that the minimum period of time under the indictment was, thus, 538 days and the maximum, 903 days. Baker’s appellate counsel argues that trial on the subject indictment violated Baker’s right to be tried on an indictment which afforded him sufficient infoi'mation concerning the crime so as to allow him to make an adequate defense and so as to protect him from being subject to another trial for the same crime. We reject Baker’s contention for two reasons.

¶ 9. First, Baker’s trial counsel made no objection to the sufficiency of the indictment. Section 99-7-21 of the Mississippi Code provides that “[a]ll objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be impaneled in all other cases, and not afterward .... ” Miss.Code Ann. § 99-7-21 (Rev.2000). Further, the Mississippi Supreme Court has held that where a deficiency appearing in an indictment is non-jurisdictional, it may not be raised for the first time on direct appeal “absent a showing of cause and actual prejudice.” Brooks v. State, 573 So.2d 1350, 1353 (Miss.1990); Brasington v. State, 760 So.2d 18, 26(¶ 41) (Miss.Ct.App.1999). Our courts have identified two instances where deficiencies are deemed jurisdictional: where “the indictment fails to charge a necessary element of a crime,” and where “there exists no subject matter jurisdiction.” See Banana v. State, 635 So.2d 851, 853 (Miss.1994) (where defendant enters a guilty plea, he waives all non-jurisdictional rights and defects; Mississippi law dictates only two exceptions in which plea does not waive defect: where indictment fails to charge necessary element of the crime and lack of subject matter jurisdiction); Holifield v. State, 852 So.2d 653, 657(¶ 8) (Miss.Ct.App.2003) (quoting Banana); Smith v. State, 806 So.2d 1148, 1150(¶4) (Miss.Ct.App.2002) (same). “Traditionally, time and place have been viewed as not requiring considerable specificity because they ordinarily do not involve proof of an element of [the] crime.” Morris v. State, 595 So.2d 840, 842 (Miss.1991).

¶ 10. In this case, the time frame provided in the indictment was not a necessary element of the offense. Although we can envision circumstances where a defendant being charged with sexual battery of a child could successfully argue that time was an essential element of the offense, such as to establish whether or not the child had reached the age of fourteen on the date of the alleged offense, no such situation exists in this case, as Jane was under the age of fourteen during the entire time frame identified in the indictment. Accordingly, the alleged deficiency in the indictment is non-jurisdictional and was waived when Baker failed to raise the issue with the trial court in a timely manner. See Brooks v. State 573 So.2d 1350, 1354 (Miss.1990); Jones v. State, 356 So.2d 1182 (Miss.1978).

¶ 11. Baker urges the Court to waive the procedural bar as the Court apparently did in Moses. We decline to do so. In Moses, the defendant filed a motion to quash the indictment charging him with twenty two separate incidents of sexual activity involving two females; fifteen of the incidents were alleged to have occurred over a thirty-nine month period; four of the incidents had no time frame identified; in the alternative, the defendant moved the court to require the State to provide more specific information regarding the alleged occurrences. There was nothing in the record to indicate that the trial court formally ruled on the motion. Without discussing the principle that failure to secure the trial court’s ruling on a motion waives the matter for appellate review (see, e.g., Grayson v. State, 806 So.2d 241, 254-55(¶ 37) (Miss.2001)), this Court found the indictment defective and remanded the case “for such further proceedings as would have been appropriate had the trial court properly acted on Moses’s motion attacking the form of the indictment.” See Moses, 795 So.2d at 573(¶ 18). The Moses court made no indication that the result would have been the same had the defendant not filed a motion to quash the indictment. Baker never questioned the sufficiency of his indictment below, and, thus, the trial court cannot be faulted for failing to rule on the issue. As the claimed deficiency is non-jurisdictional, it is waived.

¶ 12. Second, we find that the indictment in this case was sufficient to apprise Baker of the crimes with which he was charged. While Uniform Circuit and County Court Rule 7.06(5) provides that an indictment shall include the “date, and if applicable, the time at which the offense was alleged to have been committed ... [f]ailure to state the correct date shall not render the indictment insufficient.” In Eakes v. State, 665 So.2d 852 (Miss.1995), the supreme court recognized that “a specific date in a child sexual abuse case is not required so long as the defendant is ‘fully and fairly advised of the charge against him.’” Id. at 860 (quoting Morris, 595 So.2d at 842).

¶ 13. It is apparent from the record that the indictment in the instant case was based in large respect on the confession Baker made to Detective Jenkins. Baker admitted to two instances of sexual contact with Jane; at one time he admitted to having intercourse with Jane “maybe twice”; subsequently, he stated that one act was with penetration and the other without. In his first admission, Baker claimed that the incident with no penetration occurred in “May of last year,” which would have been May 2001; in his second admission, he indicated that the two incidents occurred “two to three months ago,” which would have been May or June of 2002. While the indictment did span a period longer than necessary to cover these two admitted events; we find that the indictment clearly was referencing the two occasions of sexual contact admitted by Baker. At the jury instruction conference, the trial judge asked the prosecution whether the evidence would support any narrowing of the time frame recited in both the indictment and jury instruction S-7. The prosecution responded, “Judge, ... the guy says it happened in his tape. We know it happened before June 22, 2002 and we know that it happened within two years of that date, because that’s how long he kept her six hours a day, according to him. The child claimed it happened a few weeks before, but this guy said one thing and another.... I don’t think we’ve got enough to ever specifically say what particular day.” This recitation confirms that the broad time span contained in the indictment (and therefore the jury instruction) was based in large part upon the varying times provided by Baker himself. In Richmond v. State, 751 So.2d 1038, 1046(¶ 19) (Miss.1999), the Mississippi Supreme Court stated that “[s]o long as from a fair reading of the indictment, taken as a whole, the nature and cause of the charge against the accused are clear, the indictment is legally sufficient.” We find the indictment in the instant ease was sufficient to apprise Baker of the two counts of sexual battery against Jane.

¶ 14. Baker’s appellate counsel cites Moses in support of his contention that Baker’s indictment was insufficient since the time frame of the offense charged was approximately two and one half years. In Moses, this Court stated that “[T]o attempt to charge multiple separate felonies by using identical language for each crime, including an identical span of time that the crimes were alleged to have occurred, fails woefully to fulfill the fundamental purpose of an indictment.” Moses, 795 So.2d at 572 (¶ 17). Moses is readily distinguishable from the facts of this case. Moses was indicted in a single indictment charging him with twenty-two separate counts of sexual activity that involved two females. Fifteen counts spanned thirty-nine months, and four counts had no reference to time. Id. at 570 (¶¶ 2-7). Baker was charged with only two counts of sexual battery involving one female. Further, in Moses, the State was aware of information that could have shortened the ranges of dates for each offense but refused to narrow the dates based on that information. Based on this fact and the fact that the indictment was not cured by proof received during trial, this Court reversed the convictions. Id. at 572 (¶¶ 16-18). In the present case, the prosecution explained in the jury instruction conference that the State could not narrow the range of dates in large part due to the varying dates provided in Baker’s confession. When asked whether there was any objection to the State’s inability to narrow the time frame, counsel for Baker responded, “No, sir.”

¶ 15. While the broad time span contained in Baker’s indictment resembles the thirty-nine month span of Moses, the other facts of the case are more akin to those of Little v. State, 744 So.2d 339 (Miss.Ct.App.1999). In Little, the defendant was indicted on two counts of sexual battery against a male child under the age of fourteen; the offenses were alleged to have occurred between September 1 and September 30, 1990, the approximate dates the defendant resided in the same home as the child. The wording of the two counts was identical, but at trial the prosecution stated that one count was intended to cover an act of fellatio committed on the child and the other, to cover an act of fellatio the child was forced to perform on the defendant. The defendant’s motion to compel the State to declare the date of the alleged offenses with more certainty was denied by the trial court which determined that based on the facts of the case and the limited intellectual abilities of the victim, it would have been impossible for the State to prove the exact date of the offense with any more precision than already demonstrated. On appeal, this Court affirmed. Quoting section 99-7-5 of the Mississippi Code that “ ‘stating the time [for an offense] imperfectly’ does not render an indictment insufficient ‘where time is not of the essence of the offense,’ ” the Court found nothing in the record to suggest that time was an essential element of the crime or that the lack of specificity struck a critical blow to the defense, such as might be the ease where the defendant was attempting to establish an alibi defense. Little, 744 So.2d at 340-41 (¶¶2-3, 6-7). In the instant case, Baker’s indictment accuses him of two counts of sexual battery against one child; the wording of the counts was identical, but the evidence and jury instruction conference indicate that the two counts were based upon Baker’s confession of two separate incidents of sexual contact with Jane. The prosecution was unable to narrow the dates from the length of time Baker had access to Jane by virtue of his baby-sitting responsibilities in large respect due to the inconsistencies in his own confession. There is nothing to indicate that time was an essential element of the offense, and Baker made no mention of an alibi defense. We conclude that Baker was fully and fairly advised of the charges against him.

II. WHETHER THE TRIAL COURT ERRED IN DENYING BAKER’S MOTION TO SUPPRESS HIS STATEMENTS TO DETECTIVE SHEILA JENKINS WHO ADMITTEDLY LIED DURING THE COURSE OF THE INTERROGATION.

¶ 16. The State has the burden of proving all facts prerequisite to the admissibility of a defendant’s confession beyond a reasonable doubt. The trial judge is charged with determining whether, in view of the totality of the circumstances, the confession was voluntarily made. The findings of the trial judge that the defendant confessed voluntarily and that the confession is admissible are findings of fact, entitled to the same deference as any other findings of fact made by a trial judge sitting without a jury. “As long as the judge applies the correct legal standards, his decision will not be reversed on appeal unless it is manifestly in error, or is contrary to the overwhelming weight of the evidence.” Davis v. State, 551 So.2d 165, 169 (Miss.1989).

¶ 17. Baker contends that the trial court erred in finding his statement to have been voluntarily made and asks this Court to grant a new trial without the videotaped confession. Specifically, Baker claims that the misrepresentations by Detective Jenkins and the false accusations of his molesting his own stepdaughter resulted in Baker’s “los[ing] the capacity to make a voluntary statement.” Baker recognizes that it is not unlawful for police to lie to a defendant in order to induce a confession. In Davis, the Mississippi Supreme Court found that although detectives’ lies to the defendant concerning evidence in their possession “is a factor to be considered when reviewing the voluntariness of the confession, it should be viewed in the ‘totality of the circumstances.’ ” Id. at 169 (quoting Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969)). “The applicable standard for determining whether a confession is voluntary is whether, taking into consideration the totality of the circumstances, the statement is the product of the accused’s free and rational choice.” Porter v. State, 616 So.2d 899, 907-08 (Miss.1993) (citing U.S. v. Rogers, 906 F.2d 189, 190 (5th Cir.1990)).

¶ 18. During the videotaped interrogation, Detective Jenkins misrepresented several matters to Baker: first, that everything she told him was true; second, that Baker’s stepdaughter had also accused him of sexual abuse, and third, that Baker’s brother had accused him of sexual abuse of Jane. Detective Jenkins testified during the suppression hearing that there was reasonable suspicion to believe that Baker’s stepdaughter had been sexually molested and that misrepresenting evidence was “just a technique that we’ve been trained to do that our goal is to get to the truth of exactly what happened. No more, no less, but exactly what happened. If he didn’t touch [his stepdaughter], we didn’t charge him with touching [his stepdaughter]. If he touched [Jane], we charged him with touching [Jane].” While Baker initially denied all allegations of abusing either Jane or his stepdaughter, approximately twenty minutes into the interview, he admitted that he had molested, but not penetrated, Jane. Ten minutes later, Baker retracted the earlier admission and requested a polygraph test and rape kit test. When Detective Jenkins was leading Baker back to his cell, he indicated a desire to continue the interview. Shortly thereafter, Baker admitted that he had sexual intercourse with Jane “maybe twice.” Specifically, Baker admitted that he “got aggravated” with Jane when he had to call her several times to come inside. Telling Jane that “this was a punishment,” Baker had intercourse with her. Baker admitted that the following day he again touched Jane inappropriately but denied any penetration. Baker adamantly continued to deny that he had ever touched his stepdaughter in any inappropriate manner.

¶ 19. Baker argues that the stress of the interrogation and wrongful accusations by Detective Jenkins caused him to confess to acts against Jane which he did not commit. After a short recess to watch the videotaped statement and review the law, the trial judge ruled on Baker’s motion to suppress as follows:

I find from the evidence that’s been introduced here, and I find it beyond a reasonable doubt, that the misrepresentations or lies of Sheila Jenkins in regard to the evidence, incriminating evidence that may exist against the defendant given to him at the time of his interview with her were insufficient to constitute compulsion that would deprive the defendant ... an individual with normal or above normal intelligence and who quite perhaps evasively and intelligently dealt with police officers during the interrogations that were conducted — to deprive him of his senses such that he was compelled to give statements against himself that were untrue or that were forced, somehow forced from him as a result of these statements by the detective. I find any such testimony to be incredible and not worthy of belief by this Court, based upon the record, the demeanor of the witnesses and the demeanor in which they testified, and I find that beyond a reasonable doubt. And beyond a reasonable doubt, I find that the statements given by the defendant were voluntary, free of any threats, coercion, intimidation, or other inducements calculated or sufficient to overcome his reason, and that they will be admitted into evidence at the trial of this matter.

¶ 20. Having reviewed the videotape of Baker’s confession to Detective Jenkins and the testimony of both Jenkins and Baker on the motion to suppress, we affirm the trial court’s findings in this regard. During the interview Baker tried to blame the sexual abuse of Jane on both his brother and Jane’s dead grandfather. He subsequently confessed not only once, but twice during the interview with Detective Jenkins. The second confession occurred after Baker expressly requested the interview to continue; it was more detailed than the first confession, and instead of one act of abuse, Baker acknowledged two acts of abuse against Jane. There is no evidence that any person coerced Baker or promised him anything in return for his confession.

¶21. During Baker’s testimony at the suppression hearing, he made several representations as to the conduct of the interview which were contradicted by the videotape. First, on direct examination he stated Detective Jenkins had informed him that the lead investigating detective who had initially interviewed Baker “was not there today and that I would be talking to her.” In fact, during the interview Jenkins stated the detective was in his office and that Baker could speak to him later. Baker also stated on direct examination that “I did not know that I needed a, you know, a judge to bond me out.” During the interview, Detective Jenkins made it clear that it was out of her hands when Baker would be released and that only the judge could set bond so that he could be released. Baker also stated, “I was more interested in getting out of there and taking care of what I need to take care of, giving her information that she needed so I could get out of there.” Detective Jenkins never told Baker that if he told her what she wanted to hear, that he would be released. Further, it is hard to believe that Baker would think that confessing to sexual abuse of a child would allow the police to release him.

¶ 22. On cross-examination, the prosecutor asked Baker, “are you telling Judge Harkey that Sheila Jenkins’ statements to you about [your stepdaughter] caused you to confess to having sex with a nine-year-old girl? Is that what you want the Judge to believe, Mr. Baker?” Baker responded, “No, sir, it’s not.” The prosecutor then asked, “That, but for Sheila Jenkins telling you an allegation made by [your stepdaughter], that you would not have confessed to raping a nine-year-old girl. Is that what you want Judge Harkey to believe today?” Baker responded “No.” The prosecutor further asked, “Well, what is it that you want him to believe? Why would you sit there and say that, Mr. Baker, that you raped a nine-year-old girl?” Baker responded, “Because at the time I thought that was my only way out.” Baker’s argument that the cumulation of Jenkins’ lies caused him mental distress and led to his confessions is, thus, belied by his testimony at the suppression hearing.

¶23. After reviewing the record and taped confession thoroughly, this Court is of the opinion that the trial court’s finding Baker’s confession to be voluntary, was not contrary to' the overwhelming weight of the evidence.

III. WHETHER THE TRIAL COURT ERRED IN PROCEEDING WITH BAKER’S TRIAL IN ABSEN-TIA

¶ 24. Baker makes two arguments in support of his contention that the trial court’s proceeding in his absence on the second day of trial is reversible error: first, that since he was on trial for a capital crime, that is, one for which he might be incarcerated for life, he could not waive his right to be present at trial, and second, that the court erred in determining, without sworn testimony, that he voluntarily absented himself from the proceedings. We find both of these arguments to be without merit.

¶ 25. In support his first argument, Baker relies on Sherrod v. State, 93 Miss. 774, 47 So. 554 (1908) wherein the Mississippi Supreme Court held:

Wherever the charge is a capital one, the courts have held uniformly, in favo-rem vitae, that the defendant cannot waive his right to be present, and that whether he be in jail, subject to the power of the court to produce him, or on bond, it is fatal error to receive the verdict in his absence.

Sherrod, 93 Miss. at 778, 47 So. at 555. In Thomas v. State, 117 Miss. 532, 78 So. 147 (1918), however, the court recognized that Sherrod had failed to “consider and expressly pass upon the question of whether the accused may waive his presence during his trial, as provided in Section 1495, Code 1906” which read as follows:

In criminal cases the presence of the prisoner may be waived and the trial progress, at the discretion of the court, in his absence, if he be in custody and consenting thereto. If the defendant, in cases less than felony, be on recognizance or bail, or have been arrested and escaped, or have been notified by the proper officer of the pendency of the indictment against him, and resisted or fled, or refused to be taken, or be in any way in default for non-appearance, the trial may progress, at the discretion of the court, and judgment final and sentence be awarded as though such defendant were personally present in court.

Thomas, 117 Miss. at 541, 78 So. at 148. Noting the statute to be valid and constitutional, the supreme court found the plain meaning to be that:

in all criminal cases the accused may waive his presence at any stage of the trial, if in custody, and the trial will proceed in his absence, provided he consents thereto; and provided, further, that such proceeding in the absence of the accused meets with the discretionary approval of the court. We think the statute announces a reasonable rule of procedure in criminal cases; it is pro-motive of a fair and impartial administration of justice, and deprives the accused of no right or privilege that he had heretofore enjoyed, but merely permits him to waive a guaranteed personal privilege, if he so desires.

Thomas, 117 Miss. at 542, 78 So. at 148 (emphasis added). The court observed that the statute makes “no exception or distinction between felonies and capital cases,” and determined that Sherrod’s holding “is directly in the face of [the statute] which ... seems to have been entirely overlooked, or else ignored, in passing upon that question in the Sherrod Case.” Thomas, 117 Miss. at 545, 78 So. at 149.

¶ 26. Thomas further determined that the statutory provision for waiver “at the discretion of the court” was a “sound provision” safeguarding the defendant against being denied any substantial right at his trial, even though he has waived his right to be present. The court stated in closing that “the whole record of the case should be looked to and a conviction be permitted to stand, unless it appear that the error complained of has caused a substantial injustice to be done the accused, in which event the court should readily ... grant a new trial.... ” Thomas, 117 Miss. at 548, 78 So. at 150.

¶ 27. Baker claims he was prejudiced by his absence from trial in that he was unable to contest the weight and credibility of his videotaped confession before the jury. Baker appears to argue that had he been present, he would have testified in accordance with his testimony at the suppression hearing. We find McKnight v. State, 738 So.2d 312 (Miss.Ct.App.1999) to be closely analogous to the case at bar. In McKnight, the defendant was convicted of sexual battery of a young girl one week past her fourteenth birthday. At the end of the second day of trial, the trial judge stated that court would reconvene the next morning at 8:30. The defendant failed to re-appear by 11:20 a.m., and his counsel requested a continuance which was denied. Id. at 314 (¶¶ 2, 4). The defendant argued that he was prejudiced by trial in absentia in that his absence prevented him from testifying in his own behalf and from deciding whether or not to call his daughter to testify. On appeal, this Court found his argument “specious.” The record reflected that defense counsel told the court that he would advise his client, if he were present, that it would not be in his best interest to call his daughter to the stand. The Court found no merit in the argument that McKnight was prejudiced and did not receive a fair trial; there was no error in the trial court’s denial of a continuance to find the defendant who had voluntarily-absented himself from the last day of his trial. Id. at 315 (¶¶ 6-7).

¶28. In the instant case, based upon our review of Baker’s testimony at the suppression hearing,' which the trial judge found to be “incredible,” we do not find that Baker’s inability to present that testimony to the jury substantially prejudiced his defense. In fact, Baker’s testimony at the post-trial bail hearing appears to indicate that he “saw the handwriting on the wall” and fled. If Baker thought so little of his chances to persuade the jury with his testimony, we decline to find substantial prejudice in his self-imposed inability to do so. In his absence, Baker’s trial counsel ably cross-examined Detective Jenkins, made a continuing objection to the introduction of the videotaped interview, and made a closing argument which stressed Baker’s theories of Jane’s reasons to fabricate her testimony and of his own will being overborne during the interview with Detective Jenkins. The jury brought back a guilty verdict for only one of the two counts against Baker. See Jefferson v. State, 807 So.2d 1222, 1226-27(¶ 15) (Miss.2002) (finding no prejudice by defendant’s absence from trial where jury brought back verdict only on lesser-included offense). We do not find that Baker was substantially prejudiced by his absence or failed to receive a fair trial. Accordingly, this issue is without merit.

¶ 29. Second, Baker contends that the trial court erred in determining that he had voluntarily absented himself from trial without conducting an evidentia-ry hearing with sworn witness testimony. The record reflects that when Baker did not return for the second day of his trial, the judge briefly recessed the proceedings to allow defense counsel to telephone Baker. Unable to reach Baker by phone, his counsel objected to proceeding with the trial in the absence of his client; counsel argued that there was no proof at that point that Baker had voluntarily absented himself from trial. The judge postponed trial for another half hour and directed the prosecution to check with local hospitals and law enforcement to determine whether there was some legitimate reason for Baker’s absence. Baker’s bail bondsman arrived and represented to the court that his office had called Baker’s father and had been informed that Baker was dropped off at 8:30. At ten o’clock, the prosecution reported that inquiries to local hospitals indicated that no one matching Baker’s name or description had been there for any purpose. Defense counsel’s renewed motion for mistrial or continuance was denied. Shortly thereafter, Baker’s father appeared in court and represented that “my oldest son came and got my younger son during the night last night and headed towards Panola County. I called the sheriffs department to have them arrested, whatever, but I have to have the bail bondsman to send the proper paperwork.”

¶ 30. While Baker’s counsel argued after the first brief recess that there was no proof at that point that Baker had voluntarily absented himself from trial, counsel did not object to the court’s subsequently receiving the unsworn representations of Baker’s father and his bail bondsman. Had he done so, the trial court could easily have placed the witnesses under oath and avoided the error Baker now claims. “Failure to make a contemporaneous objection and allow the trial court opportunity to cure the defect is a procedural bar and constitutes a waiver of the argument on appeal.” Mitchell v. Glimm, 819 So.2d 548, 552(¶ 11) (Miss.Ct.App.2002); see also, Smith v. State, 797 So.2d 854, 856(¶ 7) (Miss.2001) (raising objection in a motion for new trial does not cure failure to object at the proper time). Further, we find no prejudice to Baker in the court’s failing to require sworn testimony; there is no allegation that either of the witnesses misrepresented any matter before the court. In fact, by the time the motion for JNOV was filed, raising the issue for the first time, Baker had already confessed at the sentencing hearing that he “did flee” during trial, and, by the time the motion was heard, Baker had further confessed that he “ran” out of “pure fear.” Baker thus admitted that he had voluntarily absented himself from trial. We find Baker’s assignment of error to be without merit.

IV. WHETHER BAKER WAS DENIED DUE PROCESS AS CLAIMED BELOW:

A. Baker Was Lied to by the Police with the Sole Intention of Inducing Him to Make a Confession, Regardless of its Veracity.

¶ 31. Baker makes a summary re-argument of Issue II; he acknowledges that the claimed error “does not stand alone” but alleges that it “worked in combination with the failure of the entire system” to deny Baker a fair trial. Having already affirmed the trial court’s finding that the misrepresentations of Detective Jenkins did not overcome the will of Baker so as to make his confession involuntary, we find this argument to be without merit.

B. Prosecutorial Misconduct in Closing Argument Denied Baker Due Process.

¶32. The prosecutor’s last remark in his initial closing argument was the following: “I also told you during opening statements you will hear a smoke screen, you know. I’m going to tender y’all over to the defense so that the smokescreen can start, and I’ll be back to talk to you.” Baker’s trial counsel promptly objected, and the judge sustained the objection, commenting that “closing remarks are not to include any attacks on opposing counsel.” The prosecutor’s first remark in his final closing argument was “Ladies and gentlemen, that’s what I meant by smoke screen.” Baker’s counsel did not object.

¶ 33. On appeal, Baker argues that the prosecution’s attack on defense counsel implied that he presented a deceptive argument to the jury and denied Baker the right to a fair and impartial trial. Uniform Circuit and County Court Rule 3.02 states in relevant part that “in closing arguments, the attorneys may not attack the opposing attorney.” The trial court, however, sustained Baker’s objection to the prosecutor’s first statement. “When a trial court sustains an objection it cures any error. Thus, error, if any, was cured or was harmless beyond a reasonable doubt.” Holland v. State, 705 So.2d 307, 335(¶ 91) (Miss.1997). Baker failed to object to the second statement, and thus waived his right to claim error on appeal. See Mitchell, 819 So.2d at 552(¶ 11).

C.The Trial Court’s Repeated and Consistent Rulings against Baker and the Trial Court’s Assistance Rendered to the Prosecution in Questioning Witnesses Demonstrated a Bias against Him.

¶ 34. Baker claims that the trial judge evidenced a prejudicial attitude toward him, was amused by his situation and was condescending to him on several occasions throughout the trial. First, when Baker’s counsel announced that the defense was ready for trial, Baker argued a pro-se motion for continuance in which he stated “I’m not a lawyer.” The judge jokingly responded, ‘What ... you’re not a lawyer.” Second, after Baker failed to appear for the second day of trial, the trial judge denied his motion for directed ver-diet, and asked trial counsel if he had any witnesses. The trial judge must have laughed, for he then said “It’s not funny; I’m sorry.” Third, when denying defense instructions based upon the prosecution’s submission of a comprehensive instruction which subsumed or eliminated the need for several defense instructions, the trial judge asked counsel, “Don’t you hate them when they give me that C-l. It takes out all your.... ” We do not construe these casual remarks of the trial judge to evidence bias against Baker. None of the remarks were made in the presence of the jury and, therefore, could not have resulted in prejudice to him.

¶ 35. Baker also contends that the judge rendered assistance to the prosecution in violation of West v. State, 519 So.2d 418 (Miss.1988). In that case the judge extensively cross-examined the defendant in the presence of the jury. Id. at 419. In the instant case, Baker’s complaints primarily concern the trial judge’s extensive questioning of witnesses during the hearing on Baker’s motion to suppress his confession. This hearing was conducted before the jury had even been selected. Our review of the transcript reveals that the trial judge asked pointed questions of both Detective Jenkins and Baker. The trial judge was charged with determining whether, in view of the totality of the circumstances, Baker’s confession was voluntarily made. We see no error in the judge’s questioning the witnesses in order to assist him in fulfilling that responsibility or in relying upon their responses in making his finding.

¶ 36. Lastly, Baker contends that “[i]t seems difficult to fathom” that not one of the motions or jury instructions submitted by the defense had any merit. Baker fails to call any specific ruling to the attention of this court; accordingly, any unidentified error is waived.

D. The Failure of Trial Counsel to Attack the Faulty Indictment Amounted to Ineffective Assistance of Counsel.

¶ 37. In order to establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced the defense to such extent that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Stringer v. State, 454 So.2d 468, 476-77 (Miss.1984) (adopting Strickland). When raised on direct appeal, the question is not whether trial counsel was ineffective but whether the trial judge, as a matter of law, had the duty to declare a mistrial, sua sponte, on the basis of counsel’s performance. Colenburg v. State, 735 So.2d 1099, 1102(¶ 8) (Miss.Ct.App.1999). Having previously determined that the indictment was sufficient to apprise Baker of the crimes with which he was charged, we find Baker’s claim to be without merit.

¶ 38. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY OF CONVICTION OF ONE COUNT OF SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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

      . In order to protect the identity of the minor victim, we have substituted fictitious names for her and her grandmother. The grandmother is referred to as Jean Roe, and the victim as Jane Doe.

      . The three remaining counts were not reviewed on appeal as Moses had been granted a directed verdict at the conclusion of the State's proof. Moses, 795 So.2d at 570 (¶ 3).

      . Baker devotes a substantial portion of his argument comparing his situation with that of his brother. Shortly after Baker's conviction, his brother's counsel persuaded a different circuit judge to quash an identical indictment against him; the brother’s case was bound over to the grand jury for further action to narrow the time frame. While this Court has previously denied Baker's motion to supplement the record to include records regarding his brother’s case, we note that one of the brother's primary arguments was that if the dates were narrowed, he intended to assert an alibi defense. In the instant case, Baker never made any indication of an alibi; accordingly, even if the documents were properly before us, we could not conclude that Baker would have achieved the same result as his brother.

      . After his first confession to Detective Jenkins, Baker tried to retract his statement. On direct examination at the suppression hearing, Baker explained that "I told her that everything that I had said, you know, was, you know for the benefit of my brother, because, because I knew, you know, what was going on and did nothing about it.” This Court finds, as did Detective Jenkins, Baker's reasoning perplexing. The detective had told Baker that his brother was implicating him in the sexual abuse; it is hard to understand why Baker would confess to sexual abuse of a child so as to benefit his brother while his brother was, allegedly, implicating him, or moreover, how the admission would have benefitted his brother as Baker never refuted that his brother had also engaged in the abuse.

      . Section 1-3-4 of the Mississippi Code defines a capital crime as one punishable by death or imprisonment for life in the state penitentiary. Miss.Code Ann. § 1-3-4 (Rev. 1998). Baker was tried for, and convicted of, sexual battery under section 97-3-95(l)(d), which, based upon his age, subjected him to the possibility of imprisonment for life in the state penitentiary. See Miss.Code Ann. § 97-3-101(3) (Rev.2000).

        . The statute is now codified as Mississippi Code Annotated Section 99-17-9 (Rev.2000).

      . While Thomas did not expressly overrule Sherrod (Thomas, 78 So. at 150), the Mississippi Supreme Court recognized the overruling in Ford v. State, 170 Miss. 459, 466, 155 So. 220, 222 (1934).


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    Charles W. SPENCE, Appellant v. Donna G. SPENCE, Appellee.
    No. 2004-CA-00096-COA.
    Court of Appeals of Mississippi.
    Aug. 16, 2005.
    Lawrence Primeaux, Meridian, attorney for appellant.
    Henry Palmer, attorney for appellee.
    Before KING, C.J., MYERS and ISHEE, JJ.
   MYERS, J.,

for the Court.

¶ 1. This case arises from the Chancery Court of Lauderdale County where Donna Spence was granted a divorce from Charles Spence on the grounds of habitual, cruel and inhuman treatment and adultery. Further, the chancellor divided the marital assets between the parties, awarded Donna custody of the two children, and ordered Charles to pay child support and alimony. Aggrieved by the ruling of the chancellor, Charles appeals, raising the following four issues, which we recite verbatim:

I. WHETHER THE CHANCELLOR WAS MANIFESTLY IN ERROR IN AWARDING DONNA A DIVORCE.
II. WHETHER THE CHANCELLOR ERRED IN AWARDING DONNA AN EXCESSIVE AMOUNT OF ALIMONY.
III. WHETHER THE CHANCELLOR WAS MANIFESTLY IN ERROR IN AWARDING DONNA A DISPROPORTIONATE SHARE OF THE MARITAL ESTATE.
IV. WHETHER THE CHANCELLOR WAS MANIFESTLY IN ERROR IN AWARDING DONNA AN ATTORNEY’S FEE IN THIS CASE.

¶ 2. Finding that the chancellor erred in the grant of divorce, we reverse and render the trial court’s ruling.

STATEMENT OF FACTS

¶ 3. On December 29, 1981, Charles and Donna were married, and two children, Leah and Josh, were born of the marriage. On April 25, 2002, Donna filed her complaint for divorce, alleging habitual, cruel and inhuman treatment as grounds for divorce and, alternatively, irreconcilable differences. On March 6, 2003, Donna filed an amended complaint for divorce which alleged habitual, cruel and inhuman treatment as well as adultery as the fault based grounds for divorce and, alternatively, irreconcilable differences. It was upon Donna’s amended complaint that the divorce was granted.

¶ 4. At trial, Donna testified to several incidents which she contends constituted habitual, cruel and inhuman treatment. Donna argues that the instances about which she testified support a grant of divorce based upon this ground. Further, Donna argues that the circumstances surrounding the relationship between Charles and a neighbor, Gail Gullette, provides sufficient grounds for a finding of adultery.

LEGAL ANALYSIS

I. WHETHER THE CHANCELLOR WAS MANIFESTLY IN ERROR IN AWARDING DONNA A DIVORCE.

STANDARD OF REVIEW

¶ 5. “A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous.” Sanderson v. Sanderson, 824 So.2d 623, 625(¶8) (Miss.2002) (citing Consolidated Pipe & Supply Co. v. Colter, 735 So.2d 958, 961(¶ 13) (Miss.1999)). “This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Kilpatrick v. Kilpatrick, 732 So.2d 876, 880(¶ 13) (Miss.1999) (quoting Herring Gas Co. v. Whiddon, 616 So.2d 892, 894 (Miss.1993)).

DISCUSSION

¶ 6. Charles first argues that the chancellor erred in awarding Donna a divorce on the grounds of habitual, cruel and inhuman treatment and adultery. Charles argues each of these two grounds separately and we will address each ground in like fashion.

Adultery

¶ 7. In order to prevail on a claim of adultery, a party must prove his or her claim by clear and convincing evidence. Dillon v. Dillon, 498 So.2d 328, 330 (Miss.1986). This showing by clear and convincing evidence must demonstrate both an adulterous inclination and a reasonable opportunity to satisfy that inclination. Id. Although circumstantial evidence may aid in proving such a claim, the proponent retains the burden of presenting satisfactory evidence which is sufficient to lead the trier of fact to a conclusion of guilty. Id. (citing Rodgers v. Rodgers, 274 So.2d 671, 673 (Miss.1973)).

¶ 8. Charles argues that though there was evidence of affection between he and Gail, there was no evidence of a sexual relationship, and any proof of an adulterous relationship was circumstantial at best. Donna argues that due to this Court’s highly deferential standard of review in examining the decision of a chancellor, that based upon the evidence presented, the decision must be affirmed.

¶ 9. In making the decision to grant a divorce on the ground of adultery, the chancellor was required to make a finding of fact. Dillon, 498 So.2d at 330. "Where chancellors make such findings of fact, this Court has consistently held that their decisions will not be set aside on appeal unless they are manifestly wrong.” Id.

¶ 10. The chancellor’s opinion, when addressing the ground of adultery, focused on the testimony given regarding the relationship between Charles and Gail. The chancellor noted that the proof of an adulterous relationship was circumstantial in nature. In determining that such a relationship existed, the chancellor concentrated on Charles’s testimony in which he admitted to having affection for Gail, admitted having hugged Gail, admitted having kissed Gail, and admitted that he loved her as a friend. The chancellor takes this a step further, reasoning that because the two parties communicate regularly and share a close friendship, that even though there is no direct evidence of a sexual relationship, only innuendo, “it is not a stretch to believe that this has developed over the time that they have spent together.”

¶ 11. There are several instances of testimony which at first blush would lead one to believe that such a relationship was indeed present, but when viewing the testimony as a whole, it becomes readily apparent that such a determination was manifest error. The testimony pertaining to the relationship between the two was given by Charles, Gail, Leah, who is the daughter of the parties, and Donna’s cousin, Stacey Bozeman. As stated previously, Charles testified that he has hugged Gail, that he has kissed Gail, and that he loves her as a friend. When explaining his feeling towards Gail, he stated:

I feel close to her in the way that we have become friends. We found common ground together in the divorce matter. She’s been through a divorce. She seems to relate and understand what I’m going through. And she’s become a good friend and we do a lot of things together.

Though Charles testified about his affections for Gail, he denied any type of romantic involvement or sexual relationship, and denied any plans of marriage. Gail testified in a similar manner. When asked about Charles’s feelings towards her, she stated that he “[l]ove[s] me as a person. Maybe the person I am, you know. But as far as being in love with someone, you know — (witness shakes head in negative response).” Both parties testimony stated that the two were not romantically involved, only that they had developed a strong friendship, as they both shared the experience of going through divorce.

¶ 12. Leah further corroborated the testimony of Charles and Gail. Her testimony on the relationship between the two is as follows:

Q. Do you know a woman named Gail Gullette?
A. Yes.
Q. And how do you know her?
A. From the apartments.
Q. From your dad’s apartment?
A. Uh-Hun. Yes.
Q. Have you seen them together when you have visited over there?
A. Yes.
Q. Have you ever witnessed your dad and Gail Gullette in your presence do anything that you would consider to be improper for a married man and a woman with him who is not married to him?
A. No.
Q. Have you ever seen — have you ever been with them under circumstances that made you uncomfortable about what their relationship might be?
A. No.
Q. Have you ever seen them together under any kind of questionable circumstances that would raise questions in your mind that they were doing something improper?
A. No.
Q. As far as what you have been able to observe, how would you describe their relationship?
A. As friends. She has been through a divorce and I feel that she is just helping my dad get through this one. I have been over there and never saw anything that — my dad is very well liked at the apartments. I don’t know anybody that doesn’t like him. When he first moved in, he had people inviting him over to eat and some would be girls and some wouldn’t. You know, I don’t feel that he has any relationship with Gail that is as girlfriend or anything like that.

As Leah’s testimony demonstrates, the relationship between Gail and Charles did not appear to be anything other than a close friendship.

¶ 13. The chancellor put a great amount of weight in the testimony of Charles and opined that due to the nature of their close relationship, that it was logical to conclude that the two had committed adultery. In buttressing this opinion, the chancellor relied on the testimony of Donna’s cousin, Stacey. Stacey testified that she resided at the same apartment complex as Charles and Gail. She stated that she had seen Charles’s and Gail’s vehicles parked together in front of one or the other’s apartment on two or three occasions and that the two vehicles had remained in place throughout the night. Further, Stacey testified that she had overheard Charles discussing his and Gail’s plans to take off work to spend the day together. Finally, Stacey testified that she had witnessed Gail leave Charles’s apartment clad in a robe and pants.

¶ 14. On cross-examination, Stacey admitted that when she witnessed Gail leaving Charles’s apartment in a robe, it was approximately 8:00 or 9:00 o’clock on a Saturday morning in December and that she was unaware what other clothing she was wearing underneath the robe. Further, Stacey testified that she did not see Gail go into the apartment. When asked about his plans to take the day off from work to spend time with Gail, Stacey admitted that she was uncertain who Charles intended to spend the day with. Further testimony in the record negates Stacey’s assertion that Charles’s and Gail’s vehicles were parked next to one another throughout the night. Gail testified that her neighbor’s daughter owns the exact make, model, and color vehicle as Charles, and that she from time to time would park in front of Gail’s apartment.

¶ 15. As stated previously, in order to obtain a grant of divorce based upon adultery, one must prove by clear and convincing evidence an adulterous inclination and a reasonable opportunity fulfill that inclination. Dillon, 498 So.2d at 330. In the case sub judice, such a showing has not occurred. The testimony of Stacey indicated that the Charles’s and Gail’s vehicles were parked next to one another on several occasions throughout the night. This testimony was a broad allegation which was unfounded, as further testimony indicated that Gail’s neighbor’s daughter drove the exact type of vehicle. Stacey did not testify to the license plate number or give any testimony of descriptive characteristics unique to Charles’s vehicle. As the remainder of Stacey’s testimony was completely negated on cross-examination, to hold that her testimony clearly and convincingly proved adulterous activity was error.

¶ 16. Further, the court focused on the lunches shared by Charles and Gail in which they meet at the park, feed the ducks, and eat peanut butter and jelly sandwiches while discussing life’s problems. Though admittedly if taken at face value, such meetings could indicate a relationship of a different character, these lunches are also characteristic of the type of activity which can occur when a person is experiencing a troubling time and would need a friend’s advice. When taking the testimony as a whole, Charles’s alleged infidelity has not been proven by clear and convincing evidence. The testimony of Charles, Gail, and Leah stated that the two were close Mends and that Gail was helping Charles through this period of his life by sharing her experiences of divorce. As the Mississippi Supreme Court has previously held, when one alleges adulterous activity, “the burden of proof is a heavy one ... because the evidence must be logical, tend to prove the facts charged, and be inconsistent with a reasonable theory of innocence.” Owen v. Gerity, 422 So.2d 284, 287 (Miss.1982) (citing Banks v. Banks, 118 Miss. 783, 787-88, 79 So. 841, 842 (1918)) (emphasis added). The facts upon which the chancellor relied are not clear and convincing in nature and are not inconsistent with a' reasonable theory of innocence. As the Mississippi Supreme Court has previously stated: “ ‘Trifles light as air’ may be sufficient to convince the jealous or the suspicious, but they do not impress the court with the same degree of credulity. Before accepting charges so seriously affecting the character of a person, the evidence must be clear and convincing.” Banks, 118 Miss. at 788, 79 So. at 842. As such, the evidence presented does not rise above mere suspicion of adultery. Therefore, the award of divorce to Donna on the ground of adultery is reversed.

Habitual, Cruel and Inhuman Treatment

¶ 17. Charles next contends that the chancellor erred by granting Donna a divorce based upon the ground of habitual, cruel and inhuman treatment. In support of his position, Charles argues that the evidence concerning this ground for divorce consisted of the uncorroborated testimony of Donna and that the events about which she testified were isolated incidents, failing to establish sufficient grounds for divorce.

¶ 18. In granting Donna a divorce on the ground of habitual, cruel and inhuman treatment, the chancellor again relies on the entire line of testimony favorable to Donna in regards to the alleged incidents of which she testified, while neglecting the unfavorable testimony given by Leah and Josh, which negated Donna’s assertions. Donna testified that Charles belittled her, called her names, and manipulated the finances to the family’s detriment. Portions of this testimony were corroborated by the children, as both Leah and Josh testified that their parents would often quarrel and that Charles had manipulated the finances on occasion, by decreasing the amount available to the household for the week’s groceries.

¶ 19. Although it was undisputed that the parties argued frequently, Leah testified that her parents would argue but that there was never any physical violence between the two, stating:

Q. In fact, neither your dad nor your mom hit each other during these arguments, did they?
A. No, sir.
Q. Neither your dad nor your mom ever that you saw ever inflicted any kind of physical punishment on each other, did they?
A. No, sir.

¶ 20. The testimony established there were repeated arguments, though no evidence or testimony was presented which would corroborate Donna’s assertion and support a finding of habitual, cruel and inhuman treatment. Leah testified that both parties would participate in these arguments. Other than quarrels between Donna and Charles, there was no evidence presented of any other occurrences which would make Charles’s actions

a course of conduct on the part of the offending spouse which was so unkind, unfeeling or brutal as to endanger or put one in reasonable apprehension of danger to life, limb or health, and further, that such course of conduct must be habitual, that is, done so often, or continued so long that it may reasonably be said a permanent condition.

Wilson v. Wilson, 547 So.2d 803, 805 (Miss.1989).

¶ 21. The burden of proof for habitual, cruel and inhuman treatment is of a less stringent standard than that of proving adultery. Habitual, cruel and inhuman treatment is to be proven by a preponderance of the credible evidence, Smith v. Smith, 614 So.2d 394, 396 (Miss.1993); yet, we find that granting a divorce in this instance was improper. The only evidence of bad circumstances in the marital home, which was corroborated, was that the spouses had arguments. The Mississippi Supreme Court has previously held, and it is well-established in our caselaw, that denial of a divorce based upon this ground may “[result] in rendering her unhappy and her marital bond irksome, but for that alone the law of this state does not sanction a divorce.” Russell v. Russell, 157 Miss. 425, 430, 128 So. 270, 272 (1930).

¶ 22. Although the chancellor erred in granting the divorce on these grounds, it is clear from the record why the chancellor acted in the manner in which she did. Both parties wanted the divorce, but neither would agree to an irreconcilable differences divorce. In fact, the chancellor cautioned the parties’s attorneys prior to a lunch break as follows:

THE COURT: Now your client wants a divorce, doesn’t he? I mean, you know, we are treading on risky ground here. I mean, if there is not sufficient evidence to support her complaint for divorce as pointed out in your argument and the Court reviews all of this information and finds that there is not sufficient grounds for divorce, there might be a problem if your client wants a divorce, too, so, if you are at all hesitant, Mr. Palmer, about the weight of your proof and whether or not it comes up to the level required for the Court to grant a divorce, y’all might want to talk about a consent of some kind.
MR. PRIMEAUX: If you see any blue tint to my face,- Judge, I mean, I am telling you that I have discussed that literally until I was blue in the face.
THE COURT: Okay. Well, I am jush-you know, consider yourselves warned. You know, Mississippi is tough on that. So, you know, I have not reviewed all the notes and I am not making any adjudication at this time. But, I mean, we have been at this for six days and if these parties want to be sure at the end of the day that we are going to have a divorce, they might want to consider that. So you might want to mention that so they can chew it up during lunch. I will see you back at 1:15.

Though in fact the parties wished to obtain a divorce, the grant of divorce on these grounds was improper. Therefore, we reverse the findings of the chancery court, granting Donna a divorce on the grounds of adultery and habitual, cruel and inhuman treatment. As our reversal on the first issue nullifies the remaining issues raised on appeal, we decline to address these issues.

¶ 23. THE JUDGMENT OF THE CHANCERY COURT OF LAUDER-DALE COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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


author: BARNES, J.,

text:
    In the Matter of the ESTATE OF Willie LANE, Deceased. Willie Earl Lane a/k/a Willie Clanton, Appellant v. Gertrude Henderson, Appellee.
    No. 2004-CA-00612-COA.
    Court of Appeals of Mississippi.
    Oct. 18, 2005.
    Rehearing Denied Jan. 17, 2006.
    Certiorari Denied June 1, 2006.

      James Mortimer Crews, Canton, Samuel Sutherland Goza, attorneys for appellant.
    William Charles Bell, Ridgeland, attorney for appellee.
    Before BRIDGES, P.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Willie Earl Lane (“Willie Earl”) appeals the judgment of the Madison County Chancery Court which set aside a conveyance of real property to Willie Earl on the grounds of undue influence. We find that the chancellor manifestly abused his discretion in finding that there was a confidential relationship between Willie Earl and the grantor, Willie Lane. Because there was no confidential relationship, no presumption of undue influence arose. Therefore, we reverse and render.

STATEMENT OF FACTS

¶ 2. Willie Lane died on April 7, 2002, at the age of ninety-five. Following his death, one of his daughters, Gertrude Henderson (“Henderson”), petitioned the Madison County Chancery Court to be appointed administratrix of Willie Lane’s estate and petitioned the court to grant letters of administration. Both petitions were granted. After being appointed as administratrix of Willie Lane’s estate, Henderson petitioned to set aside a conveyance of real property which Willie Lane made to his son, Willie Earl, prior to his death. The property in question is a 47.9 acre tract of land located in Madison County, Mississippi. Willie Lane conveyed this tract via quitclaim deed to Willie Earl on August 13, 1999, reserving in himself a life estate. In her petition, Henderson alleged that this conveyance was caused by undue influence which arose from a confidential relationship, that the conveyance should therefore be nullified and set aside, and that the property should be added to the hotchpot of the Willie Lane estate.

¶ 3. The issue of whether a confidential relationship existed at the time of the conveyance was tried before the chancery court on October 29, 2003. Both Henderson and Willie Earl testified at trial and, as may be expected, their testimonies sharply conflicted. Willie Earl testified that he had maintained a close relationship with his father throughout his life, and that he (Willie Earl) had always cared for and maintained the property in question, even when he was young. Willie Earl testified that, around the time of the property conveyance, his father “would always let me know what he was going to do.... He never done anything without me knowing about it.” Willie Earl admitted to driving his father to the doctor for periodic checkups and to “places to take care of his own business.” He noted, however, that his father nevertheless maintained his independence, even at a very advanced age. Willie Earl’s testimony reflects that, up until the age of ninety-four, Willie Lane was able to drive himself around town, was solely responsible for his personal finances, and was in generally good health, aside from a diagnosis of prostrate cancer in 1992. Uneontradicted testimony showed that Willie Lane moved in with Willie Earl on or about March 2000, apparently because Willie Lane’s house had burned down. From that point, Willie Lane was cared for by Willie Earl and his wife, Dorothy, until 2002 when Willie Lane was placed in a nursing home.

¶ 4. Henderson’s testimony was that Willie Lane came to her on or about April 2000, and stated that Willie Earl had “stole everything he had” including “everything in the bank” and “my land.” As to Willie Lane’s mental and physical condition, Henderson testified that he “couldn’t cook food for himself or nothing like that. If you prepared the food for him, he could fix a plate, like that. But when it c[a]me to washing his clothes, he had to have somebody to do that for him.” But she also testified that ever since she could remember, Willie Lane was able to go to the grocery store on a weekly basis.

¶ 5. The events surrounding the signing of the quitclaim deed and actual conveyance of the property on August 13, 1999, are unclear. Henderson and Willie Earl both seemed to agree that the deed was drafted and signed in the office of attorney George Nichols. Willie Earl testified that he was not present at the signing of the deed, but that he knew that his father was going to convey the property to him because his father had previously informed him of his intentions. However, in a previous deposition, Willie Earl stated that he had been present in the room with his father when his father signed the deed. In Nichols’s pre-trial deposition, he admitted that he thought that Willie Earl had provided the information to prepare the quitclaim deed.

¶ 6. Henderson’s testified that she learned of the conveyance in April 2000, when she was purportedly told by Willie Lane that Willie Earl had “stolen” his land. She then stated that, almost two years later, on February 12, 2002, she payed Nichols a visit and confronted him about the allegedly fraudulent conveyance. According to Henderson’s testimony, Nichols acknowledged to her that he had prepared the deed in question, and that he apologized to her for facilitating the transaction. Under Henderson’s version of the facts, Nichols told her that Willie Earl had told him that he was Willie Lane’s only heir, and that, based on this knowledge, Nichols agreed to draft the deed and supervise the conveyance.

¶ 7. Nichols and his secretary testified at trial. Both stated that they had absolutely no knowledge of the transaction in question. While they admitted, based on the signatures on the document, that the quitclaim deed was prepared by Nichols and signed in Nichols’s office, neither had independent recollection of the circumstances surrounding the transaction. Nichols did testify, however, to a rigorous procedure he follows for the preparation of any conveyance or will when an older and possibly less independent client is involved. When examined by Henderson’s counsel, Nichols denied having met with Henderson regarding the deed, and testified that he had no recollection of ever having met Henderson.

¶ 8. After hearing the testimony, the chancellor immediately issued a bench ruling. He found that Willie Earl and Willie Lane lived together for about three years, that Willie Lane was old, that Willie Earl took care of Willie Lane to some extent, that Willie Earl’s wife, Dorothy, cooked for Willie Lane and spent a lot of time with him when he lived with them, and that Willie Earl had a close relationship with Willie Lane. He also found that Willie Lane “knew what he was doing,” that he could still drive himself, that he “did his own stuff pretty well,” and that he was “physically strong and probably fairly mentally strong for a person of his age.... ” Based on these findings, the chancellor ruled that a confidential relationship existed between Willie Lane and Willie Earl. Having found a confidential relationship existed, the court then turned to whether Willie Earl had rebutted the presumption of undue influence with clear and convincing evidence. The Court found that Willie Earl did not rebut the presumption, primarily because he was not a credible witness. Willie Earl timely appealed.

STANDARD OF REVIEW

¶ 9. We will not disturb a chancellor’s findings of fact unless the findings are clearly erroneous, manifestly wrong, or if the chancellor abused his discretion. Woodell v. Parker, 860 So.2d 781, 785(¶ 10) (Miss.2003). We will not reverse the ruling of the chancery court where the chancellor’s decision is based upon substantial evidence contained in the record. Norris v. Norris, 498 So.2d 809, 814 (Miss.1986).

ISSUE AND ANALYSIS

¶ 10. Willie Earl raises three issues on appeal. First, he argues that the chancellor erred in finding that a confidential relationship existed between himself and Willie Lane at the time of the conveyance in question. Second, he argues that the chancellor erred by shifting the burden of showing that no undue influence existed at the time of the conveyance to him. Third, he argues that, even assuming a confidential relationship did exist, the chancellor erred in finding that he was not able to overcome the presumption of undue influence. Henderson contests each point, arguing that the chancellor properly found the existence of a confidential relationship, and that Willie Earl failed to overcome the resulting presumption of undue influence. We find that Henderson did not present clear and convincing evidence of the existence of a confidential relationship, and that the chancellor’s ruling therefore constituted manifest error.

¶ 11. Mississippi law clearly recognizes that “an inter vivos gift is a perfectly lawful means of transferring real property in this state.” Anderson v. Burt, 507 So.2d 32, 36 (Miss.1987) (citing Longtin v. Witcher, 352 So.2d 808, 810-11 (Miss.1977)). Gifts of real property between family members are a normal occurrence, and our courts will not act when a conveyance from a parent to a child is a purely voluntary act. Id. In fact, “[a] deed from a parent to a child alone and of itself raises no presumption of undue influence since, in the absence of evidence to the contrary, the parent is presumably the dominant party. This is true even though the parent is aged, or aged and infirm.” Thomas v. Jolly, 251 Miss. 448, 454-55, 170 So.2d 16, 19 (1964).

¶ 12. Our courts will act, however, if it is shown that a confidential relationship existed between the grantor and grantee at the time of the conveyance. Anderson, 507 So.2d at 36. The supreme court has stated:

Whenever there is a relationship between two people in which one person is in a position to exercise dominant influence upon the other because of the latter’s dependency upon the former, arising either from weakness of mind or body, or through trust, the law does not hesitate to characterize such a relationship as fiduciary in character.

Madden v. Rhodes, 626 So.2d 608, 617 (Miss.1993). “The party asserting that a confidential relationship exists has the burden of establishing such a relationship by clear and convincing evidence.” Foster v. Ross, 804 So.2d 1018, 1021(¶ 11) (Miss.2002); see also Holmes v. O’Bryant, 741 So.2d 366, 371(¶ 21) (Miss.Ct.App.1999) (clear and convincing evidence required to prove confidential relationship). If a confidential relationship is established by the moving party, a presumption of undue influence arises, and the burden shifts to the non-moving party to prove by clear and convincing evidence that the conveyance in question was not tainted by undue influence. Anderson, 507 So.2d at 36.

¶ 13. The court looks to a number of factors in determining whether a confidential relationship exists. These factors include:

(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.

Wright v. Roberts, 797 So.2d 992, 998(¶ 18) (Miss.2001); In re Estate of Dabney, 740 So.2d 915, 919(¶ 12) (Miss.1999); In re Conservatorship of Moran, 821 So.2d 903, 906-07(¶ 16) (Miss.Ct.App.2002). In the instant case, the chancellor relied on these factors in making his bench ruling. Specifically, the chancellor found that (1) Willie Earl and Dorothy took care of Willie Lane to some extent during the three years that Willie Lane lived with them, (2) Willie Earl and Willie Lane had a close relationship, (3) Willie Lane “could still drive his car and did his own stuff pretty well,” (4) Willie Earl and Willie Lane shared bank accounts, but that these were payable on death accounts, not joint accounts, (5) Willie Lane “was fairly physically strong and probably fairly mentally strong for a person of his age (6) Willie Lane was of an advanced age at the time of the conveyance, and (7) there was no power of attorney.

¶ 14. We believe that the key factor overlooked by the chancellor in his ruling was that Willie Lane did not move in with Willie Earl until March of 2000, months after the conveyance of the property in question, which took place on August 13, 1999. Much of the testimony elicited at trial concerned Willie Lane’s health and dependence after this transfer had already taken place. Clearly the question at trial should have been whether a confidential relationship existed at the time of the transfer, not. after the transfer had taken place. Since the fact that Willie Earl and Dorothy cared for Willie Lane during the three years that he lived with them is irrelevant in determining whether a confidential relationship existed at the time of the conveyance, we are left with little testimony that supports the existence of a eon-fidential relationship at the time of the transfer.

¶ 15. The only factors remaining which support the chancellor’s decision that a confidential relationship existed were that Willie Earl and Willie Lane had a “close” relationship, and that Willie Lane was old. At trial, Willie Earl did testify that he and his father shared a close relationship, and that Willie Earl was responsible for maintaining the property in question. However, he stated that the relationship was that of a normal father and son, and quite correctly noted that any father and son should share such a relationship. There was no showing that this relationship was one where Willie Earl exerted a domineering influence over his father. Willie Lane did not move in with Willie Earl until March, 2000, and Willie Earl’s testimony that he cared for Willie Lane in such ways as driving him around town, buying groceries for him, and driving him to the doctor concerns this later period; not the time on or about August 13, 1999, when the deed was actually executed. In fact, Willie Earl testified that Willie Lane voluntarily moved in with him because Willie Lane’s house burned down, not because Willie Lane required care. Dorothy’s entire testimony is relevant only to the approximately three years that Willie Lane lived in her home, a period after the conveyance had already occurred. No evidence was offered that Willie Lane depended on Willie Earl for necessities, that Willie Earl was in a position of dominance, or that Willie Earl exerted undue influence over his father on or about August 13, 1999.

¶ 16. The only testimony offered by Henderson which concerned the time period prior to the signing of the deed, specifically, the time period following the death of Willie Lane’s wife in 1992, was her statement that:

When it came down to doing things for my father, my father couldn’t cook food for himself or nothing like that. If you prepared the food for him, he could fix a plate, like that. But when it c[a]me to washing his clothes or ironing his clothes, he had to have somebody to do that for him. But when it e[a]me to going to the grocery store, he was a person that, every [sic] since I can remember, even when my mother was living, my father went in the grocery store and made the groceries on a weekly basis....

This testimony, even when taken as true and uncontested, establishes only that Willie Lane may have needed the services of an assistant to prepare his meals and wash his clothes. There is no connection made that Willie Earl was the one supplying the assistance prior to March 2000, or that any assistance was even necessary, since Willie Lane could still drive himself around town to buy the things he needed. Given the dearth of testimony regarding Willie Lane’s dependence on others prior to March 2000, we must find that he maintained his independence at least up to that point. Ironically, Henderson herself vigorously contested that Willie Earl and his father ever shared a close relationship. This being the case, we presume that Willie Lane was still the dominant party at the time of the conveyance, and the “close” relationship between the two was not proven to be a confidential relationship which gives rise to a presumption of undue influence. See Thomas, 251 Miss. at 455-55, 170 So.2d at 19 (holding that a parent is presumed to be the dominant party, and mere gift from parent to child does not give rise to presumption of undue influence); Olmstead v. Olmstead, 233 Miss. 621, 628, 103 So.2d 399, 402 (1958) (holding that the mere existence of a parent/child relationship is not necessarily proof that a confidential relationship exists).

¶ 17. The fact that Willie Lane was old at the time of the conveyance is likewise insufficient standing alone to support the chancellor’s finding of a confidential relationship. The chancellor found that Willie Lane was strong mentally and physically, and that he was still self-sufficient and strong-willed in many respects, such as driving himself around town and managing his own money, even in the years that he lived with Willie Earl and Dorothy. Certainly these are not sufficient findings with which Henderson could meet her burden of proving a confidential relationship by clear and convincing evidence. These findings only establish that Willie Lane was an elderly man who, at the time of the conveyance, was mentally coherent, independent, in good physical health, and presumably still occupied the dominant position of “father” in his relationship with Willie Earl.

¶ 18. Aside from the chancellor’s findings that Willie Earl and Willie Lane had a close relationship, and that Willie Lane was old, the other findings of fact point toward the conclusion that a confidential relationship did not exist. The chancellor found that Willie Lane could drive himself and take care of himself well, that he was in good mental and physical shape, that he did not share bank accounts with Willie Earl, and that there was no power of attorney. The only other testimony which could bear on the chancellor’s decision was the testimony offered regarding the events surrounding the actual conveyance.

¶ 19. The chancellor found, and we agree, that these events are a mystery. Willie Earl, in a deposition taken before trial, admitted that he was present in the room when his father signed the deed conveying the 47.9 acre tract, and even suggested that he had provided the information to attorney Nichols for the preparation of the deed. At trial, his testimony changed, and he suddenly denied having been present in the building when Willie Lane signed the deed. He also testified at trial that his father drove himself to attorney Nichols’s office, and that he only knew that his father was transferring the property to him because his father told him. Henderson denied that Willie Lane drove himself to attorney Nichols’s office, but offered no first-hand knowledge to support her claim. Attorney Nichols denied having any knowledge whatsoever of the transaction, and did not recognize or remember Willie Lane, Willie Earl, or Henderson. Henderson testified that she was unaware of the transaction until 2000, but then testified that the earliest time she took action and investigated was two years later when she purportedly confronted attorney Nichols. If we believe Henderson’s testimony that she took action in 2002 by confronting attorney Nichols about the transaction, her testimony conflicts with that of Nichols, who claimed that he had never met with Henderson regarding the deed and he did not recognize her. Willie Earl’s testimony is suspicious, but we must bear in mind that Henderson was required to carry the burden of proving a confidential relationship by clear and convincing evidence. Her contradicted testimony was simply insufficient to bolster Willie Earl’s witness stand-reformation to the level of clear and convincing proof of a confidential relationship. At best, she has merely proven suspicious circumstances.

¶ 20. We do not lightly disturb the efficacy of an otherwise valid deed. Anderson, 507 So.2d at 36. In the instant case, Henderson has failed to offer clear and convincing evidence that a confidential relationship existed at the time of her father’s conveyance of the 47.9 acre tract to Willie Earl. Because Henderson failed to meet her burden, we find that the chancellor abused his discretion in finding that a confidential relationship existed. We therefore reverse, render, and hereby set aside the order of the chancery court voiding the August 13, 1999, deed from Willie Lane to Willie Earl Lane.

¶ 21. THE JUDGMENT OF THE MADISON COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . Although she did not raise the issue at trial, Henderson’s pleadings indicate that she is contesting Willie Earl's status as an heir of Willie Lane, and therefore, impliedly, his status as Willie Lane’s son.

      . This contradictory testimony weighed heavily in the chancellor’s decision.

      . The chancellor stated, "Probably the clincher was that when Mr. Willie Earl Lane was being examined and questioned by [Henderson's attorney], his memory failed on almost every relevant question. But when he was being examined by his own lawyer ... his memory was much, much better.”

      . Even absent the chancellor's error in determining the relevant time frame of the alleged confidential relationship, it does not appear that the chancellor placed a clear and convincing evidentiary burden on Henderson for determining that a confidential relationship existed. The chancellor correctly stated that Willie Earl had to overcome the presumption of undue influence by clear and convincing evidence but made no reference to the clear and convincing standard of proof required of Henderson to establish the existence of a confidential relationship in the first instance.

      . Willie Earl testified that he took his father to the Veterans Administration when his father was ninety-three. Again, it appears that this would have occurred on or about the time that Willie Lane moved in with Willie Earl, since Willie Lane died in 2002 at the age of ninety-five.