author: ROBERTS, J.,

text:
    Hiram Bernard LARSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00852-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.
    Rehearing Denied March 27, 2007.
    Certiorari Denied June 7, 2007.

      George S. Shaddock, Pascagoula, attorney for appellant.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. On November 5, 2004, a jury sitting before the George County Circuit Court found Hiram Bernard Larson guilty of sexual battery, a violation of Mississippi Code Annotated Section 97-3-95 (Rev. 2000). The circuit court sentenced Larson to a twenty year sentence in the custody of the Mississippi Department of Corrections with five years suspended and fifteen years to serve. Following Larson’s unsuccessful motion for new trial, Larson appeals and raises four issues, listed verbatim:

I. WHETHER THE TRIAL COURT ERRED IN ADMITTING, OVER OBJECTION, THE HEARSAY TESTIMONY OF THE STEP-GRANDMOTHER, MOTHER AND EXAMINING PHYSICIAN IN THIS CASE.

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE CARTE BLANCHE TESTIMONY, OVER OBJECTION, OF OTHER ALLEGED TOUCHINGS BY THE DEFENDANT TO HIS EXTREME PREJUDICE, REQUIRING REVERSAL.

III. WHETHER THE STATE’S KNOWING FAILURE TO PROVIDE IN DISCOVERY, THE KINSHIP RELATIONSHIP BETWEEN DR. TERRA MALLETT AND [MICHELLE PHILLIPS] IS MATERIAL NEW EVIDENCE, REQUIRING REVERSAL.

TV. WHETHER THE TRIAL JUDGE’S SUMMARY DISMISSAL OF THE DEFENDANT’S. MOTION FOR A NEW TRIAL, AND THE INCORRECT DENIAL BY THE TRIAL JUDGE OF THE DEFENDANT’S APPEAL BOND DEMONSTRATES AN ABUSE OF DISCRETION ON THE PART OF THE TRIAL JUDGE, REQUIRING REVERSAL.

Finding no error, we affirm.

FACTS

¶ 2. To fully appreciate the events surrounding this case, it is necessary to briefly summarize the somewhat complex familial relationships involved. Laura Phillips, the victim, is the daughter of Deborah Harris and Edward Phillips. Deborah and Edward divorced when Laura was very young. They both subsequently remarried other people. Deborah married Thomas Harris and Edward married Michelle Phillips.

¶ 3. Laura’s grandparents and step-grandparents played a large role in this case. Laura was very close to Thomas Harris’s mother, Phyllis Harris. Additionally, Larson is technically Laura’s grandfather. Laura’s mother, Deborah, is Angela Larson’s natural daughter, though Larson is not Angela’s biological father. However, Larson adopted Deborah when she was nine years old. Thus, Larson is technically Laura’s maternal grandfather.

¶ 4. The events that set Larson’s appeal into motion took place during late December of 2000. At that time, Laura was ten years old. On Wednesday, December 20, 2000, Laura went to Angela and Bernard Larson’s house after school. Laura did not feel well that day, so she took a nap. Angela’s neck hurt, so she decided to lie down with Laura. After a little while, Angela got up to answer the telephone. Laura remained in the bed. What happened next is pivotal.

¶ 5. All parties agreed that Larson woke Laura up from her nap and that Larson was alone when he woke her up. However, Laura’s version and Larson’s version varied drastically. According to Laura, she woke up when she felt Larson’s hand underneath her underwear “feeling her private area.” Laura elaborated that Larson felt her “lower private area” and that “[h]e was messing with it, with his hands, fingers.” Laura would later testify that Larson, “felt, and his finger — his finger went in me, and that was the first time that had ever happened, because he had done stuff like that a few times before, but that’s the furthest it went.”

¶ 6. Larson disputed Laura’s version of events. According to Larson, he did not touch Laura inappropriately. Larson explained that he went in the bedroom and “popped [Laura] up on the butt.” When asked to elaborate, Larson testified that he “patted [Laura] on the butt” and that he did not hit her hard.

¶ 7. After Laura left and went home, she struggled with whether she should tell anyone about her experience with Larson. She testified that she was hesitant to tell anyone out of concern that she would hurt her mother and the rest of her family. However, she decided to tell someone because she “[knew] it was bad, and [she] want[ed] it to stop, and [she] didn’t want it to happen to [her] little sister or anybody else.” To that end, she decided to write a letter to her step-grandmother, Phyllis Harris. Laura shut herself inside her closet and wrote a letter to Phyllis.

¶ 8. In that letter, Laura did not directly implicate Larson. Instead, she wrote that she had a friend who needed help. At trial, Laura testified that she was scared and embarrassed, so it was easier to make “a friend” the subject of her letter, rather than herself. Still, Laura also wrote a message to indicate that the letter contained “clues” to her true meaning. In her letter, Laura pointed out that any such “clues” would be marked with a “c.”

¶ 9. Some of Laura’s clues were more direct than others. For example, when Laura wrote “I have a friend,” she placed a “c” near it. Next to that “c” Laura wrote “me” to indicate that she wrote about herself, rather than a friend. Laura also wrote, “[r]emember that you told me about the pastor. It’s not him, though. Look for my clues.” At trial, Laura explained that, when she was younger, Phyllis told her “that if anybody tried to do anything to me, to tell. It don’t matter who it was. Even if it was a pastor, it didn’t matter.”

¶ 10. Another clue appeared in Laura’s statement, “my step mom smokes, and I’m allergic to smoke, and it makes me sick.” In small writing above that sentence is the notation “Paw-Paw.” At trial, Laura testified that she referenced that what was going on with Larson, her Paw-Paw Bernard, made her sick. After she finished her letter, Laura put it in her backpack and took it to Phyllis the next day.

¶ 11. Laura was very emotional when she gave Phyllis the letter. Both Laura and Phyllis testified that Laura “threw” the letter at Phyllis and ran into a bedroom. Phyllis read the letter and then went to talk to Laura. Phyllis quickly realized that Laura did not write about “a friend.” Laura finally told Phyllis what the letter was about. According to Phyllis Harris’s trial testimony, Laura told her that Larson “was messing with her” when she woke up from her nap.

¶ 12. Phyllis called Thomas Harris, Laura’s step-father, and relayed her conversation with Laura. Thomas Harris left work and drove to get Deborah, who was also working at the time. At trial, Deborah testified, “[Tom] ... come to my work and told me something bad happened, and I had to leave right ten [sic].” When Deborah pressed Thomas, he told her, “something has happened to [Laura], ... she’s been messed with ... your daddy has messed with [Laura].” Thomas then took Deborah to see Laura at Phyllis’s house. Deborah read the letter Laura wrote to Phyllis and then she talked to Laura.

¶ 13. At trial, Deborah testified that Laura told her Larson “put his hands in her panties. She was at Grandma Angie’s, and she laid down to take a nap, and she woke up, and he was kneeling in front of her on the bed, and his hands was inside her panties.” Laura also told Deborah that Larson had touched her “several times before.”

¶ 14. Deborah confronted Larson that same day. Deborah’s testimony at trial did not indicate whether Larson admitted or denied that he touched Laura. Deborah did not speak to Larson afterwards and had not spoken to him at the time of trial.

¶ 15. Sometime between the day Deborah confronted Larson, which should have been approximately December 21, 2000, and Christmas Day of 2000, Angela visited Deborah at her house and gave Deborah a letter from Larson. Though we have corrected many capitalization and punctuation errors, that letter stated:

For the past year or so I have been living a lie. I have lied to God, I have lied to Angie. I have been to the boats, spent our savings lied about it. I have did things that no so called good person would do.
I am proud of [Laura] for telling. I have not felt this kind of hurt since my mother died when I was eight years old.
I went to church and was Baptized for the remission of sin Friday night. Not to make me feel better but to face the truth if I had not — my heart had grown so hard that I would not have took the blame, and I know that I could not have prayed for all my family that I have destroyed because God had heard so many lies from me.
Don’t blame your mother for anything. She is the most loving Christian woman on earth. If I had not been honest with her she was going to divorce me. I don’t won’t or expect you to forgive me but love your mother and sister. They need it.
The Lord and the Devil will not live in the same body. I was letting Satan rule my life and knew it. The Lord brought me down.
Please let the Lord be the main thing in all your lives.

¶ 16. Immediately after Angela gave Larson’s letter to Deborah, Angela left Larson. Angela stayed with Deborah for approximately a month. When she left Deborah’s house, Angela visited relatives and lived in various other places for a few months while she decided what to do about her family. Eventually, Angela and Larson reconciled.

¶ 17. Meanwhile, Laura finally became comfortable enough to speak with others about her experience with Larson. On April 16, 2001, Deborah visited A1 Hillman, an investigator with the George County Sheriffs Department. Deborah reported that Larson touched Laura inappropriately. Investigator Hillman advised Deborah to take Laura to see a doctor. Investigator Hillman arranged for an appointment with a forensic interviewer at the Children’s Advocacy Center and he notified the Green County Department of Human Services.

¶ 18. On April 17, 2001, Deborah and Michelle Phillips, Laura’s step-mother, took Laura to see Dr. Terra Mallett, Laura’s pediatrician. Dr. Mallett asked Laura if she knew why she was there, Laura answered, “he touched me in some inappropriate ways.” At trial, Dr. Mallett testified that Laura told her that it was Larson who touched her inappropriately and that “it happened a lot.” Dr. Mallett’s notes from that visit reflect that Laura told Dr. Mallett that Larson touched her “down there” and that Laura indicated that “down there” referred to “between her legs in her groin.” When Dr. Mallett asked Laura if Larson touched her on the outside, Laura answered, “no, on the inside, too.”

¶ 19. Dr. Mallett also examined Laura during that visit. At trial, Dr. Mallett testified that Laura’s “hymen had an abnormal finding that was consistent with trauma.” Dr. Mallett could not opine as to what caused that trauma, but she was able to say that the trauma was consistent with the history Laura gave her. During cross-examination of Dr. Mallett, counsel for Larson pointed out that Deborah and Michelle may have been present when Laura told Dr. Mallett the history of the case. Dr. Mallett referred to the trauma to Laura’s hymen as a “healed tear.” Dr. Mallett elaborated that Laura suffered a “penetrating injury.”

PROCEDURAL HISTORY

¶ 20. On November 28, 2001, the George County Grand Jury returned an indictment against Larson and charged him with sexual battery in violation of Section 97 — 3—95(l)(d). On January 14, 2002, Larson executed a waiver of arraignment and pled not guilty to the charge.

¶ 21. Trial commenced on November 1, 2004. As mentioned, on November 5th, the jury found Larson guilty of sexual battery. The circuit court did not sentence Larson immediately. Instead, the circuit court requested a pre-sentence report. On December 1, 2004, the circuit court conducted Larson’s sentencing hearing. After statements from numerous people, including many members of Larson’s family, torn apart in support of either Larson or Laura, the circuit court sentenced Larson to twenty years with five years suspended and fifteen to serve.

¶22. On December 8, 2004, Larson filed a motion for new trial and raised seven points of contention. On April 18, 2005, the circuit court conducted a hearing on Larson’s motion for new trial. That same day, the circuit court overruled Larson’s motion. Larson appeals.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN ADMITTING, OVER OBJECTION, THE HEARSAY TESTIMONY OF THE STEP-GRANDMOTHER, MOTHER AND EXAMINING PHYSICIAN IN THIS CASE.

¶ 23. After testimony from the State’s first witness, the circuit court conducted a “tender years hearing” to determine whether it would permit presentation of testimony from multiple State witnesses as to what Laura told them regarding Larson’s inappropriate touching. The State called the following witnesses during that hearing: (a) Deborah, (b) Phyllis, and (c) Joanne Daniels, who conducted a forensic interview of Laura at the South Mississippi Child Advocacy Center. Additionally, the circuit court reviewed a videotape of Daniels’s interview of Laura. At the conclusion of the hearing, the circuit court concluded that the State would be allowed to present hearsay testimony from various witnesses as to what Laura told them about Larson touching her on December 20th.

¶ 24. Larson claims that the circuit court erred in its decision. We interpret Larson’s argument as an attack on the sufficiency on the indicia of reliability of Laura’s statements. Larson points out the ■time period between the incident on December 20, 2000, and Deborah’s report on April 16, 2001. Larson insinuates that, during that time period, Deborah, Phyllis, and Laura arrived at a “common and consistent story.” At trial, Deborah explained the delay in reporting when she testified that Laura was not comfortable talking to authorities about the events of December 20th. According to Larson, Deborah’s explanation “just does not wash.” Finally, Larson addresses Laura’s letter and her use of an “I have a friend” approach. Larson suggests that Laura’s use of that approach creates doubt as to the credibility of her allegation.

¶ 25. We review a circuit court’s decision to admit testimony under the tender years exception as we review other issues regarding admission of testimonial evidence. “The admission of testimonial evidence is within the sound discretion of the trial court, which will be found in error only if the ruling was an abuse of discretion.” Elkins v. State, 918 So.2d 828(¶ 13) (Miss.Ct.App.2005). As usual, the circuit court must exercise its discretion pursuant to the rules of evidence. Id. Even if we find that the circuit court erred in admitting evidence, we will not reverse the circuit court unless that error affected a substantial right of the complaining party. Id.

Pursuant to M.R.E. 803(25):

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a.witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

¶ 26. When a circuit court determines whether testimony will be admissible under the tender years exception, the circuit court must assess first whether the child falls into the category of one who is of “tender years.” Marshall v. State, 812 So.2d 1068(¶ 20) (Miss.Ct.App.2001). There is a rebuttable presumption that a child under the age of twelve is of tender years. Id. The relevant time to determine whether the tender years exception applies is the child’s age at the time the child made the relevant statement, rather than the child’s age at the time of trial. Id. Laura was ten when she made the relevant statements. Accordingly, Laura was of tender years and her statements fall within the tender years exception.

¶ 27. Next, a circuit court must determine whether an out-of-court statement contains a “substantial indicia of reliability.” M.R.E. 803(25); Marshall, 812 So.2d at 1075(¶ 21). The circuit court must consider a number of factors in its overall determination. The comment to_ M.R.E. 803(25) lists twelve factors which the circuit court should examine to determine whether substantial indicia of reliability exist.

(1) whether there is an apparent motive of declarant to lie; (2) the declarant’s general character; (3) whether more than one person heard the statements; (4) whether the statements were spontaneous; (5) the timing of statements; (6) the relationship between the declarant and the witness; (7) the possibility of faulty recollection by the declarant is remote; (8) certainty that the statements were made; (9) the credibility of the witness testifying about the statements; (10) the declarant’s age or maturity; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declarant’s age, knowledge and experience made it unlikely that the declarant fabricated.

Elkins, 918 So.2d at 833(¶ 14). The circuit court must ultimately determine “whether the child declarant was particularly likely to be telling the truth when the statement was made.” Marshall, 812 So.2d at 1075(¶ 21).

¶ 28. The circuit court conducted a hearing to determine whether sufficient indicia of reliability were present. The circuit court found that “all the 12 factors have been met, and there is a sufficient indicia of reliability.” Larson raises questions as to the timing of the allegation and Laura’s use of the “I have a friend” approach in her letter to Phyllis. We can find nothing about Laura’s use of the “I have a friend” approach that, in and of itself, creates doubt as to Laura’s credibility. It seems entirely reasonable that a child of tender years would use such an approach, given the message, circumstances, and context of the communication. Without more, use of the “I have a friend” approach, does not cast doubt upon Laura’s credibility. As for the approximate four-month delay in reporting, out of the countless possibilities in existence, conspiracy to arrive at a common story is among those infinite possibilities. However, without any such evidence of that occurrence, we cannot conclude that the circuit court erred when it declined to find that the delay overcame the otherwise sufficient in-dicia of reliability. Accordingly, we do not find that the circuit court committed reversible error when it permitted testimony under M.R.E. 803(25).

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE CARTE BLANCHE TESTIMONY, OVER OBJECTION, OF OTHER ALLEGED TOUCHINGS BY THE DEFENDANT TO HIS EXTREME PREJUDICE, REQUIRING REVERSAL.

¶ 29. During Laura’s trial testimony, the prosecution asked her if she remembered how Larson touched her on December 20, 2001. Laura answered, “[h]e felt, and his finger — his finger went in me, and that was the first time that had ever happened, because he had done stuff like that a few times before, but that’s the furthest it went.” The prosecution then asked Laura whether Larson touched her inappropriately prior to December 20, 2001 and how had he touched her. Laura answered that Larson had touched her inappropriately before December 20, 2001. At that point, counsel for Larson objected, but the circuit court overruled that objection. Laura proceeded to testify that Larson touched her on a few occasions over a “long period of time.” Further, Laura testified that “it started off as just like rubbing, then it got worse and worse” and that Larson always touched her at Angela’s house when Angela was outside. When Laura testified that Larson started touching her when she was seven or eight, counsel for Larson requested a continuing objection.

¶30. In this issue, Larson claims the circuit court erred when it allowed testimony that Larson touched Laura inappropriately on occasions other than the one raised in the indictment. True enough, Larson was charged with one incident of sexual battery. Larson claims that the State repeatedly elicited testimony of other alleged inappropriate touchings in an effort to portray him as a “bad” person. We stated our familiar standard of review regarding admission of evidence in the issue above. There is no reason to repeat it here.

¶ 31. Larson does not address his argument towards Laura’s testimony of other acts of inappropriate touching. Instead, Larson references testimony from Deborah and Phyllis. In particular, Larson references this particular exchange during Deborah’s testimony:

Q. Do you know of anything other than her telling about sexual abuse that she told?
Counsel for Larson: To which we object.
The Court: Overruled.
Q. If you know?
A. No, sir. The only thing she ever told me about him was the sexual abuse.
Q. Do you mean bad about him?
A. Bad. That’s the only thing bad she’s ever said about him.

As for Phyllis, Larson references her testimony that Laura:

said that like times when she would come home from school — I think she would get off the bus at their house, and she said she would be laying down on the couch and she would go to sleep, you know, be asleep, and she would be woken up, and that her Paw-Paw Bernard would be there with his hand down in her pants and stuff.

¶ 32. According to Mississippi Rule of Evidence 404(b):

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Determining whether to admit evidence under Rule 404(b) requires a two part analysis. “The evidence offered must (1) be relevant to prove a material issue other than the defendant’s character; and (2) the probative value of the evidence must outweigh the prejudicial effect.” Crawford v. State, 754 So.2d 1211(¶23) (Miss.2000). Part two is necessary because M.R.E. 403 is the ultimate filter through which all otherwise admissible evidence must pass. Id. Pursuant to M.R.E. 403, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

¶33. We do not find that the circuit court erred. “Evidence of uncharged misconduct or other offenses is inadmissible where the only purpose for the evidence is to raise the ‘forbidden inferential sequence,’ i.e., to suggest that because the defendant engaged in other misconduct or committed another offense, he probably committed the offense for which he is then on trial.” King v. State, 857 So.2d 702 (¶ 122) (Miss.2003). However, prior sexual acts of an accused are admissible to show the defendant’s lustful disposition towards the victim and the probability of the defendant’s having committed the offense charged. Henry v. State, 816 So.2d 443(¶15) (Miss.Ct.App. 2002). As such, the circuit court did not err when it permitted Deborah and Phyllis to testify that Laura told them that Larson touched her inappropriately prior to December 20, 2000. It is important to note that Larson did not object to their testimony on the basis that it was impermissible hearsay.

¶ 34. Furthermore, the testimony of which Larson complains was unquestionably prejudicial. Even so, we cannot say that the prejudice outweighed the evidence’s probative value. The testimony was probative of Larson’s lustful disposition towards Laura and it was also probative as to the probability of Larson’s having committed sexual battery on December 20, 2000. Accordingly, we affirm.

III. WHETHER THE STATE’S KNOWING FAILURE TO PROVIDE IN DISCOVERY, THE KINSHIP RELATIONSHIP BETWEEN DR. TERRA MALLETT AND [MICHELLE PHILLIPS] IS MATERIAL NEW EVIDENCE, REQUIRING REVERSAL.

¶ 35. On April 17, 2001, Deborah and Michelle Phillips, Laura’s stepmother, took Laura to see Dr. Terra Mallett, Laura’s pediatrician. Laura told Dr. Mallett that she was there because Larson “touched [her] in some inappropriate ways.” Laura also told Dr. Mallett that Larson touched her “down there” and that “down there” referred to “between her legs in her groin.” When Dr. Mallett asked Laura if Larson touched her on the outside, Laura answered, “no, on the inside, too.” Laura also told Dr. Mallett that Larson touched her inappropriately “a lot.”

¶ 36. When Dr. Mallett examined Laura, she concluded that Laura’s “hymen had an abnormal finding that was consistent with trauma.” Dr. Mallett referred to that trauma as a “healed tear” consistent with a “penetrating injury.” Dr. Mallett could not opine as to exactly what could have caused that trauma. However, Dr. Mallett testified that the “healed tear” from the “penetrating injury” was consistent with the history Laura gave her regarding Larson’s touching that occurred on December 20, 2000.

¶ 37. In this issue, Larson claims that the State withheld discoverable material and that a new trial is necessary as a result. In particular, Larson claims the State withheld that Dr. Terra Mallett, the physician who examined Laura, was related to Laura’s stepmother, Michelle Phillips. The record does not indicate exactly how Dr. Mallett is related to Michelle. During arguments on Larson’s motion for new trial, the State indicated that Dr. Mal-lett is Michelle’s first cousin. Still, the State did not know if that was correct. In any event, Larson claims that he would have sought to exclude Dr. Mallett as a witness had he been aware of her relationship to Michelle Phillips. Larson also claims that, failing exclusion, he would have sought a cautionary instruction.

¶ 38. At the outset, we note that Larson cites no authority mandating discovery of familial relationships. Even so, Rule 9.04 of the Uniform Circuit and County Court Rules governs discovery. According to Rule 9.04, the prosecution must disclose the following evidence:

1. Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial, together with a copy of the contents of any statement, written, recorded or otherwise preserved of each such witness and the substance of any oral statement made by any such witness;
2. Copy of any written or recorded statement of the defendant and the substance of any oral statement made by the defendant;
3. Copy of the criminal record of the defendant, if proposed to be used to impeach;
4. Any reports, statements, or opinions of experts, written, recorded or otherwise preserved, made in connection with the particular case and the substance of any oral statement made by any such expert;
5. Any physical evidence and photographs relevant to the case or which may be offered in evidence; and
6. Any exculpatory material concerning the defendant.

URCCC 9.04(A).

¶ 39. Nothing in URCCC 9.04(A)(l)-(6) grants Larson a right to discovery of familial relationships between an expert witness and a victim’s stepmother. Dr. Mal-lett’s kinship relationship to Michelle is not covered in 9.04(A)(1), as that subsection applies to names and statements of witnesses in chief who the prosecution proposes to offer at trial. Similarly, Dr. Mal-lett’s kinship relationship is obviously not contemplated in 9.04(A)(2) or 9.04(A)(3). Those subsections would apply to any statement made by Larson and Larson’s criminal record, if the State proposed to use his criminal record to impeach. Nor would Dr. Mallett’s relationship to Michelle be discoverable under 9.04(A)(4), though that subsection would apply to any report, statement, or opinion of Dr. Mal-lett. Clearly, Dr. Mallett’s relationship to Michelle is not physical evidence, as contemplated under 9.04(A)(5). Dr. Mallett’s relationship to Michelle is not “exculpatory material concerning” Larson. At best, Dr. Mallett’s relationship to Michelle could raise questions of whether Dr. Mallett’s opinion should be somehow diminished due to her bias towards Michelle. Those questions should only arise if it appears that Michelle influenced Dr. Mallett’s expert opinion.

¶40. There is a catch-all provision to Rule 9.04(A). “Upon a showing of materiality to the preparation of the defense, the court may require such other discovery to the defense attorney as justice may require.” URCCC 9.04(A). Even applying the language of the catch-all provision, we still decline to find that Larson is entitled to a new trial.

¶41. Dr. Mallett did not testify that Larson, in fact, touched Laura inappropriately. Instead, Dr. Mallett testified that Laura told her that Larson touched her inappropriately. Further, Dr. Mallett testified that, in her expert opinion per her examination of Laura, she found injuries consistent with Laura’s version of events that occurred on December 20, 2001. We can find no means by which Dr. Mallett’s familial relationship to Michelle somehow influenced or tainted her expert medical and professional opinion. Dr. Mallett did not offer an ultimate conclusion as to whether Larson touched Laura. Dr. Mal-lett did not vouch for Laura’s credibility. We fail to see how the State’s failure to provide Dr. Mallett’s relationship to Laura’s stepmother prejudiced Larson. True enough, Dr. Mallett’s testimony prejudiced Larson. However, the State’s failure to tender Dr. Mallett’s relationship to Michelle did not contribute to that prejudice.

¶ 42. What is more, Larson had several opportunities to discovery Dr. Mallett’s relationship to Michelle. Larson could have simply talked to Dr. Mallett in advance of trial. Larson had ample time to investigate the facts of the case. Larson cross-examined Dr. Mallett. At no point did Larson ask Dr. Mallett whether she was related to any of the relevant parties to this matter. Accordingly, we can find no reversible error as a result of Larson’s allegation.

IV. WHETHER THE TRIAL JUDGE’S SUMMARY DISMISSAL OF THE DEFENDANT’S MOTION FOR A NEW TRIAL, AND THE INCORRECT DENIAL BY THE TRIAL JUDGE OF THE DEFENDANT’S APPEAL BOND DEMONSTRATES AN ABUSE OF DISCRETION ON THE PART OF THE TRIAL JUDGE, REQUIRING REVERSAL.

¶ 43. Larson raises two entirely separate arguments under this heading. At the same time, Larson also seems to argue that the cumulative effect of the trial judge’s decisions to overrule both his motion for new trial and his motion for appeal bond somehow combine to create cumulative error. We separate Larson’s arguments regarding his motion for new trial and his appeal bond. If we find any error at all, we will then consider if a cumulative effect results.

A. Motion for New Trial

¶44. A motion for a new trial challenges the weight of the evidence. Verner v. State, 812 So.2d 1147(116) (Miss. Ct.App.2002). We may only reverse the circuit court’s decision if the circuit court abused its discretion when it overruled Larson’s motion for a new trial. Smith v. State, 868 So.2d 1048(¶11) (Miss.Ct.App. 2004). ■

¶ 45. Larson’s argument on this issue is as follows:

An examination of the record in [Larson’s] new trial hearing of April 18, 2005, shows that though lip service was given to the 7 issues as raised, there was really no meaningful consideration of the issues raised. This was particularly acute on the new evidence claim as to the kinship of Dr. Mallett and [Michelle Phillips], as discussed above. To be sure, there is the overriding presumption that all evidence offered by the State is accepted as true. But what is the situation when the State withholds either evidence or information that may be exculpatory? The only proper remedy is a new trial.

(citations omitted).

¶ 46. We considered whether any reversible error resulted from the State’s failure to make Larson aware of the kinship relationship between Dr. Mallett and Michelle Phillips in issue three, above. We found no error in that issue. There is no reason to revisit that issue.

¶ 47. Applying benefit of the doubt as to whether Larson raised a challenge to the weight of the evidence in his argument under this heading, we cannot say that the circuit court erred when it overruled his motion for new trial. Laura testified that Larson touched her inappropriately and that he digitally penetrated her vagina. Through the course of her examination, Dr. Mallett found physical evidence that corroborated Laura’s version of events. Larson and his wife, Angela, contested Laura’s version of events and cast doubt on Laura’s credibility. Even if Deborah and Phyllis did not present hearsay testimony under the tender years exception, the testimony of a single uncorroborated witness can sustain a conviction even though there may be more than one witness testifying to the contrary. Vemer, 812 So.2d at (¶ 7). The jury weighed the credibility of the various witnesses and determined that Laura was more credible. When there is conflicting testimony, the jury determines which witnesses are more credible. Bessent v. State, 808 So.2d 979(¶ 21) (Miss.Ct.App.2001).

¶ 48. We are prohibited from reweighing the facts in this case to, in effect, circumvent the jury to substitute our own determination of credibility. Smith, 868 So.2d at (¶ 11). Instead, “this Court must consider all the evidence, not just that supporting the case for the prosecution, in the light most consistent with the verdict, and give the State all favorable inferences which may be drawn from that evidence.” Fleming v. State, 732 So.2d 172(¶ 38) (Miss.1999). Accordingly, we affirm the circuit court’s decision.

B. Appeal Bond

¶49. On November 5, 2004, the jury found that Larson committed sexual battery against Laura when she was ten years old. The circuit court sentenced Larson on December 1, 2004. Larson filed a motion for new trial on December 8, 2004. The circuit court heard Larson’s motion for new trial on April 18, 2005. After the circuit court overruled Larson’s motion for new trial, counsel for Larson made an ore tenus motion for an appeal bond. The State objected to Larson’s request for a bond. The circuit court stated: “I’ll defer ruling on that at this time. I’ll give you two weeks, both sides, to give me one or two cases that might be helpful.” The circuit court added, “I’m not asking for a brief. I’m not asking you to do a lot of extra work. Just give me a little memo and a few cases and let me look at it and see what I can do.” The record contains a letter from the assistant district attorney. Within that letter, the assistant district attorney placed the circuit court on notice that he had tendered authority for his position that Larson should not receive bail pending appeal. The record also contains copies of authority as mentioned in the assistant district attorney’s letter. The record does not contain any indication that Larson tendered any authority on the issue. In any event, on May 7, 2005, the circuit court entered an order and denied Larson’s request for an appeal bond.

¶ 50. Larson claims the circuit court erred. We disagree. Mississippi Code Annotated Section 99-35-115 (Rev. 2000) governs whether a convicted person is entitled to bail pending appeal. See URCCC 12.01. On March 14, 2005, Section 99-35-115(1) was amended to reflect that “[a] person convicted of ... sexual battery of a minor ... shall not be entitled to be released from imprisonment pending an appeal to the Supreme Court.” Larson requested an appeal bond on April 18, 2005. The amended language of Section 99-35-115(1) certainly applied at that time. Larson claims that section 99-35-115(1), as applied by the circuit court, amounts to an ex post facto law. However, Larson did not advance that argument in his initial brief and the record does not indicate that Larson ever placed that theory before the circuit court. This Court cannot assume something outside of the record. See, e.g., Brown v. State, 338 So.2d 1008, 1010 (Miss. 1976); Knight v. State, 360 So.2d 674, 678 (Miss.1978). Without any indication that Larson advanced his theory prior to his reply brief, we cannot assume Larson presented his theory before the circuit court. Fundamental to appellate review is the requirement that the trial court first be presented the issue for resolution before we accept it. See M.R.A.P. 28(a)(3). Trial courts should not be reversed based on issues never presented to them. Billiot v. State, 454 So.2d 445, 455 (Miss.1984) (holding that an appellant who failed to raise an objection in a trial court waived his right to object on appeal, notwithstanding the constitutional nature of the claim). As such, Larson’s argument is procedurally barred. Accordingly, we cannot say that the circuit court erred when it overruled Larson’s request for appeal bond.

C. Cumulative Error

¶ 51. As we have found no errors, there is no cumulative effect. We find no merit to Larson’s claim of cumulative effect of errors.

¶ 52. THE JUDGMENT OF THE GEORGE COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS SUSPENDED AND FIFTEEN TO SERVE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . We substitute aliases to maintain the victim’s anonymity.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    John F. RHONE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-CP-01551-COA.
    Court of Appeals of Mississippi.
    Nov. 21, 2006.
    Rehearing Denied April 3, 2007.
    Certiorari Denied June 7, 2007.

      John F. Rhone, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. John F. Rhone, appearing pro se, appeals the denial of his motion for post-conviction relief by the Circuit Court of Lauderdale County. We find no error and affirm the circuit court’s decision.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶2. Rhone was indicted on March 20, 2001, on the charge of possession of 69.5 grams of marijuana with intent to distribute, as a prior controlled substance offender, pursuant to Mississippi Code Annotated section 41-29-139 (Rev.2005) and Mississippi Code Annotated section 41-29-147 (Rev.2005), respectively. Rhone was also considered a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev.2000) due to prior felony convictions. On October 3, 2001, in the Circuit Court of Lauderdale County, Rhone pled guilty to these charges, and the district attorney recommended, pursuant to a plea bargain agreement, one and one-half years in the custody of the Department of Corrections, along with a $5,000 fine, of which $4,000 would be suspended, and various other fees. At the hearing, Rhone also admitted to prior felony convictions of kidnaping and sale of cocaine in 1994.

¶ 3. Rhone’s guilty plea was accepted by the court with the proviso that if he attended his sentencing hearing, set on January 18, 2002, he would receive the one and one-half year sentence of the plea bargain. However, the court stated, if Rhone, did not appear at the sentencing hearing on January 18, or if he was even late, the guilty plea would be considered a “plea in the blind,” meaning there would be no plea agreement and the defendant would be subject to sentencing within the discretion of the court. Rhone could then be sentenced “to serve anywhere from zero to sixty years.” Throughout the plea hearing, Rhone indicated that he understood the charge against him and that if he failed to attend his sentencing hearing, the plea would be considered “in the blind.” This proviso was repeated to Rhone by the judge to make sure he understood its import.

¶ 4. Further, the court warned Rhone that he had now been convicted of more than two felonies arising from separate incidents, and if he was convicted of another felony in the future, he would face a maximum term of imprisonment for that felony, without the possibility of reduction or parole. Also, the court informed Rhone that since one of his prior felonies, kidnap-ing, was a crime of violence, if he was convicted of another felony in the future he would be sentenced to life in prison without the possibility of suspension or parole.

¶ 5. On January 18, 2002, John Rhone complied with the plea agreement and was present at the appointed time for his sentencing hearing. However, while waiting at the courthouse he received a message from his lawyer, written on his attorney’s letterhead, to return on February 12, 2002, for his sentencing hearing. On February 12, 2002, though, Rhone admittedly failed to appear in the court chambers for the rescheduled sentencing hearing. Inexplicably, Rhone stated he was present on the first floor of the courthouse on February 12, 2002, but chose not to come into the courtroom. The circuit court thus issued a bench warrant for Rhone, who was taken into custody on March 27, 2002. The circuit court again rescheduled the sentencing hearing for April 22, 2003, when Rhone was sentenced to thirty years in the custody of the Mississippi Department of Corrections, half the amount of his possible maximum sentence. At Rhone’s April 22, 2003 sentencing hearing, Judge Roberts explained that he had postponed Rhone’s January 18, 2002 sentencing hearing because of a scheduling conflict with the trial court’s multi-county docket. Interestingly, Rhone testified on April 22 that he was present at the courthouse for his rescheduled sentencing hearing February 12, 2002, but was “trying to get it set off again.” The irony of the fact that Rhone is arguing on the one hand that the State breached its plea agreement by rescheduling his hearing, and on the other hand that he did not show up for his hearing because he wanted to postpone it further, is not lost on this Court.

¶ 6. On October 6, 2004, Rhone filed a motion for post-conviction relief in the Circuit Court of Lauderdale County, attacking his conviction and sentence. This motion was filed three days past the three-year statute of limitations. The State, however, did not argue that the motion was time-barred. Rhone asserted forty-one issues in his motion. These issues ranged from ineffective assistance of counsel and error by the trial court to prosecu-torial misconduct and denial of due process rights. In sum, Rhone was aggrieved that the State failed to abide by its original plea bargain of a one and one-half year sentence.

¶ 7. On June 29, 2005, the Circuit Court of Lauderdale County denied Rhone’s motion for post-conviction collateral relief, ultimately holding that all of Rhone’s post-conviction relief claims arose from his own failure to appear in court on February 12, 2002, and thus the claims were “patently frivolous.” The circuit court maintained that Rhone knew he was to appear in court on February 12, 2002, for his sentencing, and he knew he was going to prison on that day, and he decided he would rather not. Rhone timely appeals to this Court.

STANDARD OF REVIEW

¶ 8. This Court’s standard of review for the trial court’s denial of a motion for post-conviction relief is the clearly erroneous standard. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). Questions of law, however, are reviewed de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ISSUES AND ANALYSIS

¶ 9. We note that Rhone’s motion for post-conviction relief was filed in the Circuit Court of Lauderdale County on October 6, 2004. Rhone’s entry of judgment was on October 3, 2001. Therefore, Rhone’s motion is three days past the statute of limitations for post-conviction relief petitions. See Miss.Code Ann. § 99-39-5(2) (Rev.2000). The prison mailbox rule states that a pro se prisoner’s post-conviction relief petition is considered delivered for filing on the date that the prisoner gives the document to prison officials for mailing. Sykes v. State, 757 So.2d 997, 1000-01(¶ 14) (Miss.2000). In Melton v. State, 930 So.2d 452, 455(118) (Miss.Ct.App. 2006), this Court held that if the State wants to challenge an appeal as untimely, the State bears the burden of proving the notice was not timely mailed by the prisoner. Id. The State has not challenged the motion as time-barred, and based upon the date of filing, Rhone may well have delivered his documents to prison officials for mailing in a timely manner. Accordingly, we will not consider this motion time-barred, but will address his appeal on the merits.

¶ 10. This Court declines to address Rhone’s forty-one issues individually. From the record, it is apparent all of the issues center around Rhone’s failure to appear at his rescheduled sentencing hearing on February 12, 2002. This failure cannot be blamed on Rhone’s defense lawyer, the State, or the circuit court. Rhone’s arguments revolve around his contention that because of his presence at the postponed January 18, 2002 sentencing hearing, this fact “cements” the plea agreement’s sentencing ceiling to one and one-half years. However, we find that Rhone cannot rely on the fact that he could only be sentenced on one day of the year. Moreover, the circuit court was clear that if Rhone did not appear at his sentencing hearing, his plea would be an open plea. Whether the sentencing hearing was on January 18, 2002, or February 12, 2002, is inconsequential, as long as Rhone had notice of the date and time, which he did.

¶ 11. From the record, it is obvious this plea bargain agreement was fully explained to Rhone. He acknowledged he understood the terms. Rhone also admitted in his post-conviction relief motion that his lawyer provided him with the rescheduled hearing date and time. Rhone stated that he chose not to appe,ar in the courtroom on February 12, 2002, but remained on the first floor of the courthouse.

¶ 12. Rhone claims ineffective assistance by his defense counsel and lists seventeen alleged acts of legal incompetence. In summary, Rhone argues that his attorney should have sought enforcement of his original plea agreement for a one and one-half year sentence. However, Rhone’s lawyer could not object to the court’s failure to impose a plea bargain agreement that was no longer on the table once Rhone failed to appear at his sentencing hearing. Therefore, this issue is without merit.

¶ 13. Rhone’s remaining forty issues relate to prosecutorial misconduct, denial of due process, the voluntariness of his guilty plea, and the legality of his sentencing. However, these issues may be resolved by the fact Rhone’s plea bargain was conditional — he would only receive the one and one-half years in prison if he appeared for his sentencing hearing. Rhone did not attend his sentencing hearing, thereby breaching his part of the bargain, and thus the plea agreement ceased to exist.

¶ 14. In his brief, Rhone cites repeatedly to Santobello v. N.Y., 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) for his argument related to prosecutorial misconduct. Santobello holds that when a plea bargain is based on a promise or agreement by the prosecutor, and that promise is part of the inducement, the promise must be fulfilled. Id. at 262, 92 S.Ct. 495. However, Rhone fails to acknowledge that the prosecution did not breach its plea agreement — he did. The State cites U.S. v. David, 58 F.3d 113 (4th Cir.1995), which holds that the defendant’s failure to appear for a sentencing hearing violated the plea agreement for a reduced sentence. Id. at 114-15. Further, in David, there was no specific instruction to the defendant to appear at the sentencing hearing, as there was in Rhone’s case; the defendant’s presence was presumed. Rhone repeatedly acknowledged that he understood the importance of his appear-anee at his sentencing hearing. As the State articulates in its brief, Rhone cannot use his own conduct as a basis for prosecu-torial misconduct. Further, the fact that the sentencing hearing was rescheduled due to a conflict on the circuit judge’s docket does not shift the blame of breaching the plea agreement to the prosecution. Thus, Rhone’s claims of prosecutorial misconduct are without merit. Additionally, Rhone’s lawyer was given notice of the date change and passed this information on to his client, thus there is no violation of due process. Rhone also argues that his plea became involuntary when the State did not fulfill its bargain of sentencing Rhone on January 18, 2002. Once again, because of an unavoidable conflict reláting to the trial court, and not the State, the hearing was rescheduled. In conclusion, all of Rhone’s remaining. issues are all without merit.

¶ 15. Accordingly, we affirm the decision of the Circuit Court of Lauderdale County denying John Rhone’s motion for post-conviction collateral relief.

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

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

      . The State speculates Rhone's reluctance to appear in court on February 12, 2002, was because Rhone was concerned about additional charges which had "popped up” since his plea bargain hearing in October; specifically, aggravated assault and possession of a firearm by a felon. While out on bond from the charges in the case sub judice, Rhone allegedly shot a person with a shotgun.

      . Judge Roberts was in Wayne County presiding over a trial on January 18, 2002. We note the fact two different circuit judges handled Rhone’s case: Judge Bailey accepted Rhone’s plea, and Judge Roberts sentenced Rhone; however, we find this fact has no impact on the case at bar.

      . Furthermore, Rhone was apparently pressuring the person he allegedly shot to retract the charges. The district attorney represented at the sentencing hearing that the victim had gone to Rhone’s lawyer, at Rhone’s urging and for a promise of $300, to tell the lawyer Rhone was not the person who shot him and to drop the charges. Later, the shooting victim recanted: he went to the district attorney’s office and admitted he was coerced and wanted to go forward with the charges against Rhone.


author: KING, C.J.,

text:
    Mitchell Shane HENDRIX, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01777-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.
    Rehearing Denied June 5, 2007.

      John Carl Helmert, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.

      Before KING, C.J., IRVING and GRIFFIS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Mitchell Shane Hendrix was convicted by a Lee County Circuit Court jury of two counts of taking a motor vehicle and two counts of felony malicious mischief. Hendrix raises the following issues on appeal which we quote verbatim:

I. Insufficient evidence exists to support the verdicts of the jury because of the improbable, unreasonable, contradictory, and substantially impeached testimony of the accomplices.
II. The verdicts of the jury are against the weight of the evidence because of the improbable, unreasonable, contradictory, and substantially impeached testimony of the accomplices.
III. The jury was erroneously instructed regarding how it should consider the unsupported testimony of accomplices.
IV. Insufficient evidence exists to support the verdicts of the jury because the State failed to identify with sufficient specificity the vehicles involved.
V. Discovery violations prejudiced the defense such that a mistrial should have been granted.
VI. A prior consistent statement was admitted erroneously, improperly bolstering the testimony of James Keith Hendrix.

Finding no error, we affirm.

FACTS

¶ 2. On April 9, 2004, Hendrix, Christopher Cruz Coker (Coker), and James Keith Hendrix (Keith) had spent a majority of the day riding around Lee County drinking liquor. At some point, the trio decided to end the night with a bang by taking school buses from Mooreville High School for the purpose of playing demolition derby. A total of four buses were taken from the school and driven to State Park Road. Two of the buses were damaged in the game of demolition derby while two other buses were spared because they could not make it up the terrain. During these events, Keith crashed Hendrix’s mother’s car into a light pole, causing nearby homes to experience an electrical outage. Authorities found Keith walking down the road and picked him up for public drunkenness.

¶ 3. Lieutenant Scott Reedy, chief investigator for the Lee County Sheriffs Department, was assigned to investigate the case of the damaged school buses. On April 10, Reedy was informed that Keith had been arrested for public drunkenness near the area where the buses were found. Reedy set up an interview with Keith to see if he knew anything about the incident involving the buses. In that interview, Keith implicated Hendrix and Coker.

¶ 4. On July 15, 2004, Hendrix and Coker were jointly indicted on two counts of feloniously taking Lee County School District buses. That same day, a Lee County grand jury issued a second joint indictment charging Hendrix and Coker with two counts of felony malicious mischief. The two eases were subsequently consolidated. Four days prior to the commencement of Hendrix and Coker’s trial, Coker was meeting with his attorney to prepare for trial when Coker was arrested on two counts of strong armed robbery. Coker then decided to enter a guilty plea on all of his outstanding charges. He also agreed to testify for the State in hopes of receiving a lenient sentence.

¶ 5. Hendrix’s trial commenced on August 29, 2005. Both Keith and Coker testified for the State, each giving varying accounts of the events of April 9, 2004. Keith testified as follows: Hendrix and Coker picked Keith up on the morning of April 9 in Hendrix’s mother’s car. Keith drove most of the day as the trio traversed Lee County drinking liquor. Later that night, Hendrix and Coker asked Keith to drive them to Mooreville High School for the purpose of obtaining school buses to play demolition derby. Keith drove them to the school and let them out. Shortly thereafter, two school buses emerged from the school’s parking lot. Keith planned to follow the buses to a location off of State Park Road. However, after entering State Park Road one of the buses hit a stop sign which flew toward the vehicle Keith was driving causing him to crash into a light pole. Keith claimed neither of the buses stopped, and that was the last time he saw Hendrix and Coker.

¶ 6. Coker testified that on April 9 Hendrix and Keith picked him up at approximately 1:00 p.m. to ride around and drink liquor. He claimed that it was Keith’s idea to take the buses, and at 10:00 or 11:00 p.m. they went to Mooreville High School. Coker knew that the keys to the buses were left in the ignition because he once cleaned the buses when he was in high school. Coker claims that they took four buses from the school. He testified that he and Hendrix each drove two buses from the school that night. However, he also testified that Keith drove one of the buses from the school. In any event, Coker claimed that the three took turns crashing the buses after arriving at their final destination. Keith and Coker’s testimony was the only evidence offered by the State to link Hendrix to the crimes for which he was indicted.

ANALYSIS

I. Insufficient evidence exists to support the verdicts of the jury because of the improbable, unreasonable, contradictory, and substantially impeached testimony of the accomplices.

II. The verdicts of the jury are against the weight of the evidence because of the improbable, unreasonable, contradictory, and substantially impeached testimony of the accomplices.

¶ 7. This Court will reverse a conviction based on a challenge to the legal sufficiency of the evidence only where the evidence offered to prove one or more elements of the crime charged was such that a reasonable juror could only find the defendant not guilty. Wilson v. State, 936 So.2d 357, 363(¶ 16) (Miss.2006). A reversal based on a challenge to the weight of the evidence is warranted only when a verdict is so contrary to the evidence presented that allowing it to stand would sanction an unconscionable injustice. Id. When reviewing challenges to the weight and sufficiency of the evidence, the Court must view the evidence in the light most favorable to the State and which is consistent with the verdict. Id.

¶ 8. Testimony of an accomplice, even when uncorroborated, can be sufficient to support a verdict of guilt. Catchings v. State, 394 So.2d 869, 870 (Miss.1981). However, “where [accomplice testimony] is uncorroborated, it must also be reasonable, not improbable, self-contradictory or substantially impeached.” Jones v. State, 740 So.2d 904, 910(¶ 17) (Miss.1999) (quoting Jones v. State, 368 So.2d 1265, 1267 (Miss.1979)). Hendrix first asserts that Keith and Coker’s testimony was uncorroborated because accomplice testimony cannot corroborate another accomplice’s testimony. Next, he urges this Court to find that both accomplices’ testimony was so unreasonable, improbable, contradictory, and substantially impeached as to render the State’s case legally insufficient and the verdict against the overwhelming weight of the evidence.

¶ 9. It is true that the only evidence linking Hendrix to the crimes charged was the testimony of Coker, an admitted accomplice, and Keith, an unindicted but presumed accomplice. No Mississippi case law exists to support Hendrix’s assertion that one accomplice cannot corroborate the testimony of another accomplice. Moreover, a finding that the accomplice testimony was uncorroborated would only be important if Keith and Coker’s testimony was as unreasonable, improbable, and contradictory as Hendrix claims. Although there are discrepancies in each accomplice’s account of the scheme, those discrepancies relate to the level of Keith’s involvement rather than Hendrix’s. Both accomplices testified that Hendrix drove at least one bus away from the school. Coker testified that Hendrix participated in crashing the two school buses. However, Keith claimed to have never made it to site of the demolition derby.

¶ 10. It is within the province of the jury, not this Court, to determine the weight and credibility to attach to each witness’s testimony. Beyers v. State, 930 So.2d 456, 458(¶ 11) (Miss.Ct.App.2006). The jury clearly believed the portions of Keith and Coker’s testimony which implicated Hendrix in the crimes charged. We cannot say that a reasonable juror could only find Hendrix not guilty, or that the verdict represents an unconscionable injustice.

III. The jury was erroneously instructed regarding how it should consider the unsupported testimony of accomplices.

¶ 11. Hendrix offered the following instruction which was given as amended by the trial court:

The testimony of an alleged accomplice, and the testimony of one who provides evidence against a defendant as an informer for pay or for immunity from punishment or for personal advantage or vindication, must always be examined and weighed by the jury with greater care and caution than the testimony of ordinary witnesses. You, the jury, must decide whether the witness’s testimony has been affected by any of those circumstances, or by the witness’s interest in the outcome of the case, or by prejudice against the defendant, or by the benefits that the witness has received either financially or as a result of being immunized from prosecution. You should keep in mind that such testimony is always to be received with caution and weighed with great care.

Hendrix cites in his appellate brief to Mississippi case law that suggests that in some cases the word “suspicion” must be used in an accomplice instruction. However, Hendrix cannot attribute error to the trial court for an alleged error of his own creation. Alexander v. State, 811 So.2d 272, 282(¶ 26) (Miss.Ct.App.2001) (citing Singleton v. State, 518 So.2d 653, 655 (Miss.1988); Davis v. State, 472 So.2d 428 (Miss.1985); Browning v. State, 450 So.2d 789 (Miss.1984)). This issue is barred from review.

IV. Insufficient evidence exists to support the verdicts of the jury because the State failed to identify with sufficient specificity the vehicles involved.

¶ 12. Hendrix argues that the State listed the vehicle identification numbers of the buses taken from Mooreville High School in the indictment but failed to offer proof of the buses’ vehicle identification numbers at trial. A verdict is legally sufficient if a reasonable juror could find that the State proved each element of the crime charged beyond a reasonable doubt. Wilson, 936 So.2d at 363(1116).

¶ 13. The statute prohibiting the unlawful taking of a motor vehicle proscribes:

Any person who shall, willfully and without authority, take possession of or take away a motor vehicle belonging to another, and any person who knowingly shall aid and abet in such taking possession or taking away, shall be guilty of a felony and shall be punished by commitment to the Department of Corrections for not more than five (5) years.

Miss.Code Ann. § 97-17-42(1) (Rev.2006). The State proved that the vehicles taken belonged to another through the testimony of the investigating officer who testified that the buses in question belonged to the Lee County Public Schools and by photographs introduced into evidence showing that the buses were those of Lee County Public Schools. The indictment listed the essential elements of the crime, and the inclusion of the vehicle identification numbers in the indictment was mere surplus-age. This issue is without merit.

V. Discovery violations prejudiced the defense such that a mistrial should have been granted.

¶ 14. Lieutenant Reedy was asked by defense counsel during cross-examination what attempts he had made to obtain physical proof to link Hendrix to the crimes. Reedy responded that he had attempted to lift fingerprints from the school buses, but found only “bunches of little bitty smudges” rather than any prints with observable ridges. Reedy attempted to lift the prints by brushing a powdery substance over the examined area, adhering a piece of tape to the powdered area, and transferring what was pulled from the tape to a card for examination. When asked by defense counsel where the cards were, Reedy responded that he did not know but that they may have been left on the bus. Defense counsel subsequently, and outside the presence of the jury, requested a mistrial, citing the failure of the State to disclose evidence, which was denied by the trial court. On appeal, Hendrix argues that the State’s failure to disclose the existence of the above referenced material was a discovery violation which prejudiced his defense.

¶ 15. A denial of a motion for mistrial is reviewed for abuse of discretion. Flora v. State, 925 So.2d 797, 804(115) (Miss.2006). The State’s suppression of favorable evidence violates a defendant’s due process rights. Manning v. State, 929 So.2d 885, 890-91(¶ 13) (Miss.2006) (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). This Court employs the following four-part test to determine whether a Brady violation, requiring a new trial, has occurred:

The defendant must prove: (a) that the State possessed evidence favorable to the defendant (including impeachment evidence); (b) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; (c) that the prosecution suppressed the favorable evidence; and (d) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.

Id. at 891(¶ 15) (citing Todd v. State, 806 So.2d 1086, 1091-92(¶ 15) (Miss.2001)). If Reedy’s testimony is taken as true, it is improbable that the fingerprint cards would have been favorable to the defendant or had an impact on the outcome of the trial.

¶ 16. Hendrix also argues that Reedy’s loss or destruction of the cards requires reversal. The State is charged with a duty to preserve evidence “which might be expected to play a significant role in the suspect’s defense.” Cox v. State, 849 So.2d 1257, 1266(¶24) (Miss.2003) (quoting Northup v. State, 793 So.2d 618, 623 (Miss.2001)). Reviewing courts apply the following two-part test to determine whether spoliation of evidence requires reversal:

First, it must be determined whether the evidence would have played a significant role in the defendant’s case. To play a significant role, the exculpatory nature and value of the evidence must have been apparent before the evidence was lost. The second part of the test requires that the defendant have no way of obtaining comparable evidence by other means.

Id. at 1266(¶ 25) (citing Tolbert v. State, 511 So.2d 1368, 1372 (Miss.1987)). Although precedent refers to a two-part test, it appears that a third consideration is whether the officer acted in bad faith in failing to preserve the potentially exculpatory evidence. Id. at 1266(¶27) (citing Wilson v. State, 574 .So.2d 1324, 1329 (Miss.1990)). Reedy’s testimony reveals that he clearly did not believe that the smudged fingerprints had any inculpatory or exculpatory value. Further, the record is wholly devoid of any evidence that Reedy acted in bad faith.

VI. A prior consistent statement was admitted erroneously, improperly bolstering the testimony of James Keith Hendrix.

¶ 17. In reviewing a claim that the trial court erroneously admitted evidence, this Court will not reverse unless the ruling resulted in a denial of a substantial right of the defendant. Hodges v. State, 912 So.2d 730, 757(¶44) (Miss.2005) (citing Jackson v. State, 645 So.2d 921, 924 (Miss.1994)).

¶ 18. During the defense’s cross-examination of Keith, defense counsel referred to a statement which Keith gave Officer Reedy on April 12, 2004. In that statement Keith implicated Hendrix and Coker. Defense counsel then referred to an alleged discrepancy between that statement and Keith’s testimony during Hendrix’s May 7, 2004 bond hearing. Defense counsel asked Keith whether his current testimony was different than his May 7 testimony, to which Keith answered in the negative. Defense counsel then proceeded with a line of questioning which implied that Keith’s original statement was not his own, but rather an account which may have been suggested by Reedy and adopted by Keith in order to escape prosecution.

¶ 19. On redirect the prosecutor asked Keith whether he gave the April 12 statement to Reedy in an exchange for a promise of non-prosecution or because the statement was the truth. Keith said the statement was true. The prosecutor first asked that the statement be marked for identification purposes. The prosecutor then asked Keith whether that was in fact the statement he gave Reedy, to which Keith answered in the affirmative. The prosecutor then offered the statement into evidence. Defense counsel objected stating that offering the prior statement was simply an attempt to bolster Keith’s current testimony and noted that the prior statement was not inconsistent with the current testimony. The court accepted the statement into evidence.

Mississippi Rules of Evidence Rule 801(d)(1)(B) provides:

A statement is not hearsay if ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive ....

The Mississippi Supreme Court has stated the following regarding the applicability of the rule:

Admission of a prior consistent statement of a witness where the veracity of the witness has been attacked is proper but should be received by the court with great caution and only for the purpose of rebuttal so as to enable the jury to make a correct appraisal of the credibility of the witness.

Caston v. State, 823 So.2d 473, 489(¶ 43) (Miss.2002) (quoting White v. State, 616 So.2d 304, 308 (Miss.1993)). Defense counsel clearly attempted to impeach Keith by referring to alleged discrepancies between Keith’s original statement to Reedy, his testimony at Hendrix’s bond hearing, and his trial testimony. Defense counsel also attempted to show that Keith’s trial testimony was the result of improper influence or motive, i.e. given in exchange for non-prosecution. Accordingly, we And that the trial court correctly allowed Keith’s prior statement into evidence under Mississippi Rules of Evidence Rule 801(d)(1)(B) in order to rebut defense counsel’s implied charge of fabrication.

¶ 20. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT OF CONVICTION OF TWO COUNTS OF FELONIOUSLY TAKING A VEHICLE AND SENTENCE OF TWO CONCURRENT FIVE YEAR SENTENCES IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND CONVICTION OF TWO COUNTS OF FELONY MALICIOUS MISCHIEF AND SENTENCE OF TWO CONCURRENT FIVE YEAR SENTENCES TO BE SERVED CONSECUTIVELY WITH THE FELONIOUS TAKING OF A VEHICLE SENTENCES IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

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

      . The original instruction ended with a two-sentence paragraph which was stricken by the court. The stricken language does not appear in the record. However, based upon contextual clues found in the record, the stricken language appears to have suggested that the accomplices' testimony was unsupported or uncorroborated. This stricken language is unrelated to the substance of Hendrix’s argument regarding this jury instruction.


author: GRIFFIS, J.,

text:
    Frederick Wesley CHASEZ, Jr., Appellant v. Kelly Sue Powell CHASEZ, Appellee.
    Nos. 2004-CP-01956-COA, 2003-CA-01828.
    Court of Appeals of Mississippi.
    Feb. 13, 2007.
    Rehearing Denied June 5, 2007.

      Frederick Wesley Chasez, Jr., appellant, pro se.
    David R. Daniels, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Frederick Wesley Chasez, Jr. appeals a judgment finding him in contempt for failure to pay child support. We find no error and affirm.

FACTS

¶ 2. In Chasez v. Chasez, 935 So.2d 1058, 1059(¶ 1) (Miss.Ct.App.2005), Mr. Chasez appealed the third order that found him in contempt. In our earlier opinion, we described the facts as follows:

On July 11, 1997, Kelly Chasez filed for divorce from Frederick Chasez on the basis of habitual cruel and inhuman treatment. In a temporary order entered August 20, 1997, the chancellor awarded Mrs. Chasez physical custody of the two minor children, and ordered Mr. Chasez to pay $300 a month in child support. After a hearing on April 15 and 16, 1999, the chancellor executed a judgment of divorce on April 22, 1999. In granting the divorce, the chancellor noted that the record was insufficient to make a decision on child custody. He ordered that the temporary legal custody of the children be placed with the Department of Human Services (DHS), and directed that DHS conduct a home study and report back to the court within 120 days. After the DHS report was submitted to the chancellor, he gave Mrs. Chasez physical custody of the children, and ordered that both parents complete a parenting course and forty hours of counseling. The chancellor also found that Mr. Chasez had a $3,600 ar-rearage for twelve months of unpaid temporary child support, and directed that it be paid within forty-five days.
Mr. Chasez failed to pay any child support, and on June 7, 2000, Mrs. Chasez filed a complaint for contempt. Mrs. Chasez’s attorney noticed her complaint for contempt for hearing on June 15, 2000. Mrs. Chasez’s attorney mailed a copy of this notice to Mr. Chasez. There is no indication on the case docket that a Rule 81 summons was issued for the contempt hearing. Mr. Chasez, acting pro se, appeared and indicated his willingness to proceed and the court heard the contempt. The chancellor found that Mr. Chasez had absolutely refused to pay any child support for nearly two years, and was therefore in arrears by $7,800. The chancellor held Mr. Chasez in contempt, and ordered him incarcerated, until he purged himself of that contempt. On August 12, 2000, having received the assurance of Mr. Chasez of his intent to comply with the court’s orders, the chancellor ordered Mr. Chasez released.
Mrs. Chasez filed a second complaint for contempt on April 15, 2002. A Rule 81 summons was issued in conjunction with this complaint. By order dated April 8, 2003, the court found that Mr. Chasez had made no attempts to pay child support, and was in arrears by $17,400, exclusive of interest. The chancellor found that while Mr. Chasez was not employed, he did have marketable skills, and had no impediments which would prevent his employment. The chancellor found that Mr. Chasez’s unemployment was a scheme to avoid child support. As a result, the chancellor found Mr. Chasez in contempt and ordered him incarcerated until he purged himself by either paying the full $17,400, or by paying $5,000 and executing an agreed order to pay $200 a month in additional support until the arrearage was satisfied. On July 22, 2003, Mr. Chasez paid $5,000 of the arrearage and agreed to pay. current child support at $300 a month, plus $200 a month towards the arrearage. In that same order, the chancellor set a compliance review for August 29, 2003, in Gulfport. In an order dated December 3, 2003, the court denied Mr. Chasez’s motion to hold in abeyance child support, and set a show cause hearing for December 15, 2003, in the chancery courtroom in Gulfport.
On February 25, 2004, the court heard Mr. Chasez’s motion for reconsideration of his request to hold in abeyance child support, the show cause order, and Mrs. Chasez’s motion for attorney fees.
In an order dated March 10, 2004, the chancellor found that Mr. Chasez continued to fail in his obligation to pay current child support and the additional sum agreed upon for delinquent child support, and therefore found that he was in contempt. The court ordered Mr. Chasez incarcerated until he purged himself, suspended the incarceration until the next hearing, and set the next hearing in this case for April 1, 2004, in Hancock County. Aggrieved by that action, Mr. Chasez has appealed.

Id. at 1060-61 (¶¶ 2 — 6). This Court affirmed the chancellor. Id. at 1063(¶20).

¶ 3. On April 4, 2004, Mrs. Chasez filed another complaint for contempt, stating that Mr. Chasez had failed to pay child support for the months of March and April of 2004. A contempt hearing was held on August 11, 2004. In a judgment dated September 24, 2004, nunc pro tunc August 11, 2004, the chancellor found Mr. Chasez in contempt for failure to pay child support for the months of March, April, May, June, July, and August all of 2004. Mr. Chasez was ordered to be incarcerated until he paid a purge amount of $1,800, the arrear-age accumulated. Mr. Chasez now appeals this latest judgment.

STANDARD OF REVIEW

¶ 4. Previously, this Court stated that the following standard of review applied:

Since Mr. Chasez’s contempt would have been discharged by his doing that which he previously refused to do, his contempt was civil. Common Cause of Mississippi v. Smith, 548 So.2d 412, 415 (Miss.1989). The chancellor’s finding of civil contempt is subject to review under a manifest error standard. Dennis v. Dennis, 824 So.2d 604, 608(117) (Miss.2002). However, the chancery court’s interpretation and application of the law is reviewed under a de novo standard. Isom v. Jernigan, 840 So.2d 104, 106(¶ 6) (Miss.2003).

Chasez, 935 So.2d at 1061(¶ 7).

¶5. Here, we recognize that Mr. Chasez brings this action pro se, but “even when a litigant is pro se, a court is to apply the same procedural and evidentiary requirements upon him.” Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987). Pro se litigants are offered some leeway, though and “this Court will review the record for any ‘self-evident’ errors that need not be supported by citations.” Goodin v. Dep’t of Human Servs., 772 So.2d 1051, 1054(¶ 7) (Miss.2000).

ISSUES

¶ 6. Mr. Chasez assigns five errors by the chancellor, which we quote verbatim:

1. The Appellant/Defendant is not in contempt. He had no outstanding child support obligations.
2. False imprisonment for the purpose of:
A. Extorting money from Appellant/Defendant’s family which Appellant does not have or owe.
B. Denying Appellant his due process rights to an appeal in an effort to force Appellant to agree to the dictates of a void judgment.
3. The referenced order dated April 22, 1999, filed April 28, 1999 is a void judgment in that:
A. There was not proper notice, which disallowed Appellant the right to have witnesses.
B. There was no financial information provided to Appellant as required by Chancery Court Civil Procedure 8.05.
C. The amount of child support ordered is not within the statutory guidelines of the State of Mississippi.
D. The factual findings of the Chancellor is not supported by the record.
E. Appellee did not meet evidential statutory requirements to receive a divorce under the habitual cruel and inhuman statutes.
F. There was no equitable division of marital property.
G. There was a partial adjudication of the issues of the divorce. It was not a final order of all the issues.
H. Appellant’s parental rights were taken away without a hearing or clear convincing evidence of any misconduct. There was no guardian ad litum appointed to protect Appellant’s children’s rights or the integrity of the Appellant’s family.
I. The chancellor infused his own religious beliefs to question Mississippi law and skirt the Albright factors.
4.The Appellee has petitioned a Mississippi court of equity for a judgment of relief when she has grossly unclean hands.
A. She gave false testimony on all the material issues before the divorce, during the divorce hearing and after the divorce hearing.
B. She disposed of marital property held in her name.
C. She aided and abetted the transfer of marital property held in trust in her mother’s name.
5. The entire divorce, custody and contempt charges was an abuse of process, along with the misrepresentation of Frederick’s attorney’s shows a conspiracy to deny Frederick a fair trial, his right to appeal, his right to his children, his right to his personal property, to cover up the theft of his property.

Mr. Chasez’s brief does not follow the issues as he has stated. Our analysis will address the issues we have concluded to be in contention in this appeal.

ANALYSIS

I. There was no contempt because no child support payments were outstanding.

¶ 7. Mr. Chasez claims that he did not owe Mrs. Chasez any child support payments. Hence, he was not in default on his payments. We begin our review of this issue by noting a legal principle from Hoops v. State, 681 So.2d 521, 526 (Miss.1996):

Hoops [the appellant] cites no legal authority to support this argument. This Court has held that it is the duty of an appellant to provide authority and support of an assignment. Kelly v. State, 553 So.2d 517, 521 (Miss.1989); Brown v. State, 534 So.2d 1019, 1023 (Miss.1988); Harris v. State, 386 So.2d 393 (Miss.1980). If a party does not provide this support this Court is under no duty to consider assignments of error when no authority is cited. Hewlett v. State, 607 So.2d 1097, 1106 (Miss.1992); Kelly, 553 So.2d at 521; Brown, 534 So.2d at 1023.

On this issue, Mr. Chasez has cited no legal authority. Although we have no duty to consider this assignment of error, we have considered this issue and find it to be without merit.

¶ 8. Mr. Chasez argues that, from May 1, 1999, through April 2, 2004, he owed a total of $21,600 in child support. He claims the following payments: a superse-deas bond of $15,600 that was posted when he appealed the March 11, 2004 judgment; his father paid $5,000 and $100 to have him released from jail; and the Department of Human Services “intercepted” his 1998 tax refund, for a total of $21,066. The record verifies those amounts.

¶ 9. Mr. Chasez also claims a “credit” of $2,400 for serving eight months in jail. We have reviewed the record and the documents cited by Mr. Chasez. However, we are not able to find an order that credits Mr. Chasez $2,400 for his incarceration. Indeed, the order indicates that Mr. Chasez was released conditioned on his promise to comply by paying his child support.

¶ 10. Here, Mr. Chasez appealed the judgment of contempt, not the original order establishing child support payments at $300 a month. Therefore, the bond entitled him to a stay of execution for the amount adjudicated in the March 11, 2004 judgment, which was for non-payment of child support through February 15, 2004. As of March 15, 2004, the next child support payment of $300 was due and likewise each month thereafter. Further, the chancellor explained to Mr. Chasez on the record that the stay only applied to the ar-rearage during the hearing on April 1, 2004.

¶ 11. The chancellor was correct to determine that Mr. Chasez owed child support payments for the months of March, April, May, June, July, and August of 2004, regardless of the stay of execution on the previous contempt judgment. Therefore, we find that this issue is without merit.

II. False imprisonment

III. The divorce order upon which the contempt is based is void

¶ 12. Although listed separately, Mr. Chasez essentially argues that he is entitled to relief from the contempt order because the underlying judgment of divorce was void.

¶ 13. We begin with an analysis of whether the chancellor’s finding of contempt was invalid because the divorce order, which established the child support payments, was void. For this proposition, Mr. Chasez correctly cites to Gadson v. Gadson, 434 So.2d 1345 (Miss.1983). Gad-son holds that if the underlying decree is void, then the party found in contempt, should be released of his or her obligation to pay. Id. at 1347 (quoting Cox v. Cox, 279 So.2d 615 (Miss.1973)). Mr. Chasez asks that this Court grant him relief from the seven-year-old divorce judgment.

¶ 14. Mr. Chasez argues that the divorce judgment is void for a number of reasons. However, because of the time lapse between the entry of the judgment and his request for relief, many of the issues that he has argued are precluded from our review. Indeed, most of the issues should have been brought on direct appeal of the divorce judgment, not seven years later. Hence, we decline to consider his allegations that the judgment was void due to: failure to provide financial information, an order of child support not within the statutory guidelines, factual findings not supported by the record, failure to meet evidentiary requirements for a divorce due to habitual cruel and inhumane treatment, inequitable division of marital property, partial adjudication of the issues, improper removal of parental rights, failure to appoint a guardian ad litem, and improper analysis by the chancellor. By failing to appeal the divorce judgment, Mr. Chasez waived the opportunity to fully litigate these issues, and he should not be allowed to re-litigate them. Askew v. Askew, 699 So.2d 515, 520(¶ 22) (Miss.1997).

¶ 15. Mr. Chasez alleges one issue that could be considered since it could rise to a jurisdictional level, i.e., the judgment is void due to lack of notice. He argues that the hearing, held April 15-16, 1999, was not noticed to the parties. The chancellor considered this issue. The chancellor noted that he did not see any trial notices in the court file but that all parties appeared for the hearing. At the hearing in April of 1999, the chancellor asked if there were any issues that needed discussion before testimony was presented, and several matters were discussed. However, lack of notice was not one of the matters brought to the chancellor’s attention and discussed. Indeed, Mr. Chasez made no objection to lack of notice. Any objections to service of process may be waived if a defendant appears in an action without raising the objection in the initial pleadings or attached motions. Isom, 840 So.2d at 107(¶ 9). Mr. and Mrs. Chasez appeared at the hearing on April 15, 1999, and neither complained of a lack of notice. We conclude that Mr. Chasez waived any objection for lack of notice and find no merit to this issue.

IV.Mrs. Chasez lacked clean hands.

¶ 16. Mr. Chasez argues that Mrs. Chasez should be denied any relief, because she comes before the chancery court with unclean hands. Mr. Chasez failed to raise this in the contempt proceeding which he has currently appealed. He did raise this issue during the hearing on February 25, 2004, which judgment was appealed and subsequently affirmed by this Court. Chasez, 935 So.2d at 1063(¶ 20). Mrs. Chasez correctly points out that “the appellate court is not required to address issues that are not objected to at trial and preserved for appeal.” Dennis v. Dennis, 824 So.2d 604, 611(¶ 18) (Miss.2002). Therefore, we find this issue lacks merit.

V. The process was a conspiracy to hide crimes against Mr. Chasez and deprive him of his rights.

¶ 17. Mr. Chasez argues that there was a conspiracy against him to deprive him of his rights by creating and then maintaining the void divorce judgment. The conspirators allegedly included Mrs. Chasez, her counsel, his counsel (of which there were several), the chancellor, and the DHS case worker. As discussed in the previous section, Mr. Chasez failed to raise this claim before the chancellor, and we decline to address it for the first time on appeal. Id.

VI. Inability to pay

¶ 18. Although not specifically addressed in the statement of the issues or the brief, Mr. Chasez alludes to his inability to pay as a defense to the contempt. A valid defense to the charge of contempt is to establish that the defendant did not have the ability to pay the amount charged. Varner v. Varner, 666 So.2d 493, 496 (Miss.1995) (citing Gebetsberger v. East, 627 So.2d 823, 826 (Miss.1993)). Once contempt is established, the burden is on the defendant to show his inability to pay with particularity, not just in general terms. Varner, 666 So.2d at 496 (citing Morreale v. Morreale, 646 So.2d 1264, 1267 (Miss.1994)).

¶ 19. The chancellor here noted that Mr. Chasez offered no justifiable reason for his failure to comply. Further, Mr. Chasez put on no evidence to establish his inability to pay, much less a showing with any particularity as required. Varner, 666 So.2d at 496. Therefore, we find this issue to be without merit.

VII.Mr. Chasez’s counsel was ineffective

¶ 20. Another issue that was not specifically identified in the statement of issues but was discussed in the brief was that Mr. Chasez claims ineffective assistance of counsel by his numerous counsel over the course of the proceedings. Hence, Mr. Chasez argues that he was denied his right to counsel. We decline to address this issue because he has failed to cite legal authority to support the argument. Hoops, 681 So.2d at 526. Despite this procedural bar, the claim has no merit.

¶ 21. Clearly, there is no right to counsel in a civil proceeding. Goodin, 772 So.2d at 1055(¶ 12). Nevertheless, Mr. Chasez had counsel at the contempt hearing. In essence, he seems to claim that he had a constitutional right to effective counsel. We have found no case law that would require counsel in a civil contempt to meet the familiar standard for ineffective assistance of counsel, i.e., whether counsel’s performance was deficient and that this deficiency prejudiced his defense, in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Regardless, assuming such standard is applicable, “allegations of ineffectiveness must be made with specificity.” Jones v. State, 922 So.2d 31, 35(¶ 14) (Miss.Ct.App. 2006) (citing Garner v. State, 864 So.2d 1005, 1008(¶ 13) (Miss.Ct.App.2003)). Mr. Chasez does not even argue that his counsel was ineffective in the contempt proceeding. He does make a number of allegations towards the various counsel he used throughout the course of this litigation. None of the “ineffective assistance of counsel” occurred during Ms contempt proceeding. Therefore, we find this issue to lack merit.

CONCLUSION

¶ 22. Finding no error, we affirm the chancellor’s judgment finding Mr. Chasez in contempt for failure to pay child support.

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

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

      . For instance, Mr. Chasez provided the Court with a brief of ninety-nine pages. Rule 28(g) of the Mississippi Rules of. Appellate Procedure limits the appellant's principal brief to fifty pages.


text:
    Ronald ADDISON, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00299-COA.
    Court of Appeals of Mississippi.
    May 22, 2007.

      Ronald Addison, Appellant, pro se.
    Office Of The Attorney General By Scott Stuart, Attorney for Appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court.

¶ 1. Ronald Addison pled guilty to two counts of possession of a controlled substance and one count of manufacture of a controlled substance. Sentenced to three consecutive ten year sentences, Addison sought to set the sentences aside. He appeals from the circuit court’s denial of his motion to vacate or set aside the sentences.

¶ 2. On appeal he raises two issues: (1) that the trial court erred in finding that his constitutional rights were not violated by the disparity in his sentence and that of his co-defendants, and (2) that his trial counsel was ineffective in promising him a specific sentence in securing a guilty plea.

¶ 3. We find no error and affirm.

FACTS

¶ 4. In November 2001, the Narcotics Task Force of Amite County raided Malcolm Miller’s property and found drugs and a methamphetamine laboratory. Present on the property were Addison, his wife Delores, Malcolm Miller, and William Thornton. On or about April 5, 2002, all four were indicted for possession of a controlled schedule II substance, manufacture of a schedule II controlled substance, and possession of precursor chemicals.

¶ 5. Addison’s wife entered a guilty plea, and the State agreed to drop the manufacturing count. She was sentenced to ten years consecutive on each of the two remaining counts, with nineteen years suspended, one year to serve and five years’ probation. Miller and Thornton also entered guilty pleas and were given the same sentence as Delores Addison — one year to serve.

¶ 6. Addison notes in his brief that he failed to appear for his court date “due to his extreme addiction to drugs.” According to the circuit judge’s order, Addison fled the jurisdiction after his arraignment and posting bond. It was necessary for the court to call Addison’s bond and issue a bench warrant for his arrest. Addison was eventually apprehended and returned to Amite County.

¶ 7. In his guilty plea Addison advised the court that he had come to Amite County from Louisiana to cook methamphetamine and that he had been involved with methamephetamine for nearly two years. Addison’s criminal history also showed that he was a prior convicted felon.

¶ 8. The court sentenced Addison on each count to ten years to serve, with the sentences to run consecutively. The court noted that Addison could have been sentenced to up to seventy-six years for the three counts.

DISCUSSION

¶ 9. As the State notes, Addison has failed to cite any authority in support of his arguments. It is the responsibility of the appellant to provide the Court with support for each assignment of error. As such, the appellant’s arguments on appeal are procedurally barred. Drennan v. State, 695 So.2d 581, 585-86 (Miss.1997); McClain v. State, 625 So.2d 774, 781 (Miss.1993).

¶ 10. Even though the assignments of error are procedurally barred, the Court will briefly address the merits of Addison’s arguments.

Disproportionate Sentence

¶ 11. Addison argues that his constitutional rights were violated because he received a disproportionate sentence compared to his co-defendants.

¶ 12. In Mississippi, sentences which are within the statutory limits will generally be upheld. Tate v. State, 912 So.2d 919, 933(¶ 8) (Miss.2005); Smallwood v. State, 930 So.2d 448, 451(¶ 11) (Miss.Ct.App.2006). Sentencing is within the trial court’s discretion and not subject to appellate review if the sentence is within statutory limits. Tate, 912 So.2d at 933(¶ 8); Nichols v. State, 826 So.2d 1288, 1290(¶ 10) (Miss.2002); Wall v. State, 718 So.2d 1107, 1114 (¶ 29) (Miss.1998); Edmond v. State, 906 So.2d 798, 801(¶4) (Miss.Ct.App.2004).

¶ 13. As the circuit court noted, Addison did not receive the maximum sentence which could have been imposed. The sentence was within the discretion of the circuit court, and Addison cannot demonstrate that the court denied his constitutional rights.

¶ 14. In the lower court, Addison cited McGilvery v. State, 497 So.2d 67 (Miss.1986) in support of his argument. In McGilvery, there was a question whether the defendant had been penalized for exercising his right to a trial by jury, and the case was remanded for the judge to explain his reasons for disparity in sentencing where a co-defendant had pleaded guilty and received a lesser sentence. In this case, Addison and his co-defendants all pleaded guilty, and therefore the circumstances are not analogous. The judge in the present case clearly stated that he “carefully weighed the individual circumstances of [Addison’s] co-defendants, including his wife, and did sentence them to less time.” As the court stated, Addison’s sentence was based on “all the circumstances, including the defendant’s prior criminal history.”

¶ 15. This assignment of error is both procedurally barred and without merit.

Ineffective Assistance of Counsel

¶ 16. Addison contends that he was denied effective assistance of counsel in that his trial counsel told him that he would receive the same sentence that his wife was given, i.e., that he would receive two ten year sentences to run consecutively with nineteen years suspended. The appellate record refutes this claim by Addison. As noted by the circuit judge, Addison signed a petition to plead guilty under oath which contained the following provision: “I know that the sentence I receive is solely a matter for the Judge to decide.” Further, Addison was questioned at length at the guilty plea hearing about his understanding of whether he had been promised anything and whether he understood that the sentencing was entirely up to the circuit judge. When asked if he “had been promised ... any particular sentence,” Addison responded, “No, sir.” Addison was also asked if he had been promised any plea bargain or told what his sentence was going to be, to which Addison responded in the negative.

¶ 17. The rule is that a trial judge may rely heavily on prior statements made under oath. Simpson v. State, 678 So.2d 712, 715 (Miss.1996); Smith v. State, 636 So.2d 1220, 1224 (Miss.1994).

¶ 18. We review Addison’s claim of ineffective assistance of counsel under a two-part inquiry of whether counsel’s performance was deficient, and whether that deficiency prejudiced Addison. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This review is to determine whether counsel’s conduct “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. 2052. We must consider the “totality of the circumstances” when deciding if counsel’s actions were deficient. Swington v. State, 742 So.2d 1106, 1114(¶ 22) (Miss.1999). With these principles in mind, the Court cannot find that the fairness of the proceedings by which Addison entered a guilty plea was undermined by errors of his counsel.

¶ 19. Addison’s statements during the plea colloquy directly contradict his present statements. The court was entitled to rely on the appellant’s statements during the guilty plea.

¶ 20. The Court finds that all the issues raised by Addison are procedurally barred and without merit.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF AMITE COUNTY DENYING THE MOTION TO SET ASIDE SENTENCE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO AMITE COUNTY.

KING, C.J., LEE and MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISH-EE, ROBERTS and CARLTON, JJ., CONCUR.