author: ROBERTS, J.,

text:
    Roy L. EDMOND, Appellant v. Cassandra V. TOWNES, Appellee.
    No. 2006-CP-00188-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.

      Roy L. Edmond (pro se).
    Terry T. James, Calhoun City, attorney for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. This domestic relations case arose after Roy Edmond and Cassandra Townes had a child, Ryan Edmond. Roy filed a complaint in the Leflore County Chancery Court and requested a paternity test and, if the paternity test indicated that Roy was Ryan’s father, Roy requested custody of Ryan. If the chancery court did not grant Roy custody of Ryan, Roy requested visitation with Ryan. Cassandra filed a counterclaim and requested custody of Ryan and child support. After a hearing, the chancellor entered an order and found that, according to the paternity test, Roy was Ryan’s biological father. Having found such, the chancellor granted custody of Ryan to Cassandra and ordered Roy to pay Cassandra $402 per month in child support. Additionally, the chancellor ordered Roy and Cassandra to equally split any of Ryan’s medical expenses not covered by Medicaid. Unsatisfied, Roy filed what appears to be a motion for relief from judgment. In response, the chancellor issued an amended order and clarified Roy’s child support obligation. Otherwise, the chancellor did not disturb his initial order. Aggrieved, Roy appeals and raises two issues:

I. WHETHER THE CHANCELLOR ERRED WHEN HE TABULATED EDMOND’S CHILD SUPPORT OBLIGATION.

II. WHETHER THE CHANCELLOR ERRED WHEN HE ORDERED EDMOND TO PAY HALF OF ANY OF RYAN’S MEDICAL BILLS THAT MEDICAID WILL NOT COVER.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 28, 2003, Cassandra Townes had a son, Ryan Edmond. Cassandra was of the opinion that Roy Edmond was Ryan’s father. On November 12, 2004, Roy filed a pro se petition in the Leflore County Chancery Court and requested joint legal custody of Ryan and physical custody of Ryan. In the event the chancellor awarded physical custody to Cassandra, Roy requested visitation rights with Ryan. On December 6, 2004, Roy amended his petition and requested a paternity test. On December 14, 2004, the chancellor entered an order and found that Roy was entitled to a paternity test at his expense.

¶ 3. On January 6, 2005, Cassandra filed a “cross-complaint for child custody and child support.” By that document, Cassandra requested (a) full legal and physical custody of Ryan, (b) adequate visitation for Roy, so long as that visitation occurred near Cassandra’s home, and (c) child support. On January 19, 2005, the chancellor conducted a hearing on Roy’s initial and amended petitions and Cassandra’s cross-complaint. The record does not contain a transcript of that hearing. However, according to Cassandra’s brief, the chancellor:

inquired of the parties if a hearing was necessary and the parties informed the Court that an agreement had been reached between the parties and the same was outlined to the Court. The Court instructed that the agreement be reduced to a written judgment by Ms. Townes’ attorney and then submitted to the Court for entry after review by Mr. Edmond.

¶ 4. There is some dispute as to whether Roy and Cassandra’s attorney was able to reduce the agreement to writing. In her brief, Cassandra states:

Mr. Edmond would not respond to Ms. Townes’ attorney in several attempts to get the order entered with agreement set forth therein. The order was then submitted unto the Chancellor without any agreed or approved signature by the Plaintiff and the Court entered the Order on November 28, 2005, nunc pro tunc, January 19, 2005.

¶5. It seems that Roy disagrees with Cassandra’s recollection. In essence, Roy claims that the agreement he received from Cassandra’s attorney contained extraneous matters. Unfortunately, the record does not contain a transcript of the November 28, 2005 hearing that Cassandra references. However, the record does contain a copy of the chancellor’s January 19, 2005 order. By that order, the chancellor held:

2. That [Roy], pro-se, [sic] and [Cassandra], by and through counsel, Terry T. James, were all present at the hearing scheduled and held at the Leflore County Courthouse in Greenwood, Mississippi, on Wednesday, January 19, 2005 at 9:30 o’clock a.m.
3. That certain DNA testing was performed in this matter whereby [Roy] could not be ruled out as the natural biological father of [Ryan] and that [Roy] shall be responsible for all cost incurred as a result of said testing. That [Roy] is the natural biological father of the minor child ... and that [Cassandra] is the natural biological mother of said child.
4. That the mother, Cassandra V. Cassandra [sic], shall have the full legal and physical custody of said minor child....
6. The court does hereby find that the minor child is presently receiving monthly benefits from [Roy’s] disability in the amount of $136.00 per month, said amount coming directly to [Cassandra] for the support and maintenance of the minor child of the parties. The court does hereby further find that [Roy] receives monthly benefits by and through the Department of Veterans Affairs ... and thereby does hereby order and direct that [Roy] pay unto [Cassandra] the sum of two-hundred sixty six dollars ($266.00) per month, said amount being in addition to the $136.00 per month said minor child presently is receiving from [Roy’s] disability.
7. That the minor child is presently covered by Medicaid thereby [Roy] and [Cassandra] are hereby ordered and directed to each pay one-half ... of any and all sums of medical and hospital expenses of the minor child of the parties not covered by medicaid.

Additionally, the chancellor ordered that Roy be allowed visitation with Ryan for four hours one weekend a month for three months. By the chancellor’s order, Roy, who lived in Arkansas, could only exercise that visitation within Leflore County. After three months of that visitation, the chancellor ordered that Roy be allowed to visit with Ryan for one weekend a month, without being limited to Leflore County.

¶ 6. Subsequently, Roy filed a document titled “Relief from Judgment, Decree or Order Motion to Amend Judgment.” Roy requested that the chancellor amend his judgment to reflect that Roy would be allowed to take Ryan to Arkansas for visitation. Roy also claimed that he was exempt from any child support obligation. Finally, Roy claimed that the chancellor should amend the insurance portion of his judgment to allow CHAMPVA insurance to cover any medical bills that Medicaid would not cover. The chancellor entered an amended order and clarified that Roy’s monthly $402 child support obligation would be paid as follows: $136 per month from the Social Security Administration, $50 per month from the Department of Veterans Affairs, and $216 per month from Roy.

STANDARD OF REVIEW

¶ 7. As we review this appeal, we are mindful that chancellors are vested with broad discretion. Jacobs v. Jacobs, 918 So.2d 795(¶ 5) (Miss.Ct.App.2005). This Court will not disturb the chancellor’s findings unless the chancellor was manifestly wrong, abused his discretion, or applied an erroneous legal standard. Id.

ANALYSIS

I. WHETHER THE CHANCELLOR ERRED WHEN HE TABULATED EDMOND’S CHILD SUPPORT OBLIGATION.

¶ 8. Roy’s brief is inartfully drafted. Though his argument is difficult to discern, as best we can tell, Roy feels aggrieved over the chancellor’s decision to offset the $50 per month benefit Ryan receives from the Department of Veterans Affairs from Roy’s monthly child support obligation. However, at no point does Roy claim that the amount of his child support obligation is improper. To fully understand the complexity of Roy’s argument under this issue, it is necessary to view it in its entirety. Roy states:

Therefore, it was established that [Cassandra] the said mother of the minor child was receiving $136 per month for the minor child from [Roy’s] Social Security Disability Benefits which has been increased to $142 per month. Therefore, the Judge did not establish in his judgment Decree date 28th day of November, A.D.2005 that the said minor child mother ... had filed with the Veteran Administration under Federal Child Support Act 5 C.F.R. 581.103(c)(4)(iv) (1985) for a apportioning disability benefits for minor child. Veteran Administration granted that apportioning at the rate of $50.00 per month to the said mother. Respondent appealthe [sic] amount to the Veteran Administration for an increase. A hearing was schedulded [sic] for January 24, 2006 at 10:30 a.m. in North Little Rock, Arkansas. [Cassandra] did not show up for the hearing therefore the appeal was dropped and no increase was given to [Cassandra]. Therefore, the Judge order in the judgment Decree for [Roy] to pay ($266.00) [sic] per month to said mother of the minor child out of the Petitioner Disability check for child support. Therefore, Court Order child support order by the court violates [Roy’s] right under 5. C.F.R. 581.103(c)(4)(iv) stated that if a veterans is receiving 100% disability and no portion of retirement is not subjected to garnishment to pay child support or alimony.

In an entirely different section of his brief titled “Statement of Oral Argument,” Roy briefly mentions Veterans Administration v. Kee, 706 S.W.2d 101 (Tex.1986). According to Roy, the chancellor failed to apply Kee for the proposition that “a 100% disabled veteran benefits were not subjected to garnishment for paying court order child support and alimony.”

¶ 9. Roy is misplaced in his understanding of the chancellor’s order and in his interpretation of Kee. In Kee, a Texas trial court found an ex-husband delinquent in his child support and alimony obligations. The trial court ordered garnishment of the ex-husband’s Veterans Administration disability benefits to cure the delinquency. The Texas Court of Appeals affirmed. However, the Texas Supreme Court reversed.

¶ 10. According to Kee, federal law determines whether Veterans Administration disability benefits are subject to garnishment. The Kee court applied two sections of the United States Code and concluded that a veteran’s disability benefits may be subject to garnishment if that veteran waives a portion of his retirement benefits to receive a larger compensation in disability benefits. Kee, 706 S.W.2d at 103. The ex-husband in Kee had waived all of his military retirement pay. Kee also noted that, pursuant to 5 C.F.R. § 581.103(c)(4)(iv), a veteran who waived all of his retirement benefits to receive greater disability benefits may not have his disability benefits garnished to pay child support or alimony. Id. at 102.

¶ 11. The Kee court concluded that Congress intended to provide for the payment of child support but also intended to ensure that disabled veterans would securely have access to the benefits “necessary to take care of their essential needs.” Id. at 103. Accordingly, Kee held that “[i]n light of the legislative and regulatory scheme ... disability benefits received by a veteran in return for his having waived all his retirement benefits are not subject to garnishment for the payment of child support and alimony.” Id.

¶ 12. There are multiple reasons why the Texas Supreme Court’s decision in Kee does not apply to the present scenario. Primarily, there is no indication among the record that Roy’s benefits are being garnished. There is no order for garnishment, and nothing in either of the chancellor’s two orders references garnishment. A letter to Roy from Carol J. Wintrode, Veterans Service Center Manager for the Department of Veterans Affairs, appears in the record. That letter, dated May 20, 2005, informed Roy that Cassandra receives monthly payments for Ryan in the amount of $50 per month and that those payments were “taken from [Roy’s] monthly disability compensation.” The letter also described the monthly $50 benefit as “Dependent Child’s Apportionment of Service Connected Disability Compensation.” Nothing in Ms. Wintrode’s letter references a garnishment order.

¶ 13. Additionally, Kee held that Veterans Administration disability benefits may not be garnished if that veteran waived a portion or all of his retirement benefits in order to receive greater disability benefits. Notwithstanding that there is no order for garnishment, there is no indication in the record that Roy retired from the military or that Roy waived a portion or all of his retirement benefits to receive greater disability benefits. It is possible that Roy retired from the military, but we cannot assume that to be the case without some proof in the record presently before us. There is no mention of Roy having retired from the military, much less that he waived any or all of his retirement benefits.

¶ 14. Because the authority cited by Roy has no bearing, factually or legally, upon the present facts, nothing under this argument amounts to an abuse of the chancellor’s discretion. As such, we affirm.

II. WHETHER THE CHANCELLOR ERRED WHEN HE ORDERED EDMOND TO PAY HALF OF ANY OF RYAN’S MEDICAL BILLS THAT MEDICAID WILL NOT COVER.

¶ 15. In this issue, Roy complains of the portion of the chancellor’s order that directs Roy and Cassandra to each pay one-half of Ryan’s medical expenses not covered by Medicaid. According to the “Summary of Oral Argument” portion of Roy’s brief, “[t]he Child Support Act Law says that when a parent of a minor child can provide insurance for a minor child to help cover all medical bills it must be done.” In another portion of Roy’s brief, he argues that the chancellor erred by declining to order that CHAMPVA insurance cover Roy’s half of any of Ryan’s medical bills not covered by Medicaid.

¶ 16. While it certainly seems reasonable to allow any secondary coverage on Ryan to compensate any medical bills not covered by Medicaid, without some demonstration in the record that Ryan is even entitled to such coverage, we cannot find that the chancellor erred when he declined to order such coverage. We cannot assume facts that are not present in the record. Accordingly, we cannot find that the chancellor abused his discretion. As such, we find this issue lacking in merit.

¶ 17. THE JUDGMENT OF THE LE-FLORE COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Roy signed Ryan’s birth certificate and indicated that he was Ryan's father.

      . Roy has consistently acted pro se throughout the proceedings.

      . Kee references the “Veterans Administration.” The benefits at issue derive from the "Department of Veterans Affairs.” We take judicial notice that, although the names are different, for our present purposes, the names are interchangeable.

      . 5 C.F.R. § 581.103(c)(4)(iv) has since been rewritten and modified as 5 C.F.R. § 581.103(c)(7).


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    William Ray BLACK, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00560-COA.
    Court of Appeals of Mississippi.
    Feb. 13, 2007.

      Brian B. Alexander, attorney for appellant.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On August 11, 2004, a jury in the Hancock County Circuit Court found William Ray Black guilty of one count of possession of a firearm by a convicted felon and one count of armed robbery. The same day Black was sentenced as a habitual offender to three years for the possession of a firearm and forty years for armed robbery, both sentences to run concurrently and to be served in the custody of the Mississippi Department of Corrections. Black subsequently filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. After the motion was denied by the trial court, Black filed his appeal to this Court asserting the following issues: (1) the trial court erred in denying his motion for a JNOV or, in the alternative, a new trial; (2) the trial court erred in permitting Detective Tom Roan to testify regarding the photographic lineup; (3) the jury verdict was against the overwhelming weight of the evidence; and (4) the trial court erred in sentencing him as a habitual offender in light of the constitutional prohibition against cruel and unusual punishment.

FACTS

¶ 2. At approximately 5:00 p.m. on February 6, 2004, Black approached his neighbors Mike and Susie Davis about buying Black’s handgun. Mike had previously seen Black’s handgun. Black decided not to sell his gun, telling Mike that “a man is naked without his gun” and “I might need to rob somebody.” Susie was present during this exchange.

¶ 3. Just after 8:00 p.m. that night, a man entered a Subway restaurant in Kiln, Mississippi, brandishing a handgun. The man pointed his gun at the two Subway employees and demanded money from the register. Diana Smith, one of the employees, testified that this man was wearing a black hooded jacket with a blue jacket over it and a camouflage bandana covering the bottom half of his face. Diana stated that the man was white, had “pretty” blue eyes and spoke with a country accent. Per the assailant’s order, Diana placed money from the register in a brown paper bag. At one point the man placed the gun on the counter. The man then ordered Diana and the other employee, Tarah Dittman, to get in the bathroom. Diana stated that at one point he became agitated, showed Diana and Tarah that the gun was loaded and then cocked the gun. After Diana and Tarah went into the bathroom, he fled the scene on foot.

¶4. Black’s friend and roommate, Rodney Harbin, testified that Black came home around 9:15 p.m. that same night acting paranoid and nervous. Harbin said Black was jumping around, calling himself Jesse James and claiming that he had made some money. Black showed Harbin the brown paper bag containing approximately $130. Harbin stated that once Black entered the trailer he took off his clothes and then hid the gun under the washing machine.

¶ 5. Detective Tom Roan, an investigator with the Hancock County Sheriffs Department, responded to the scene of the robbery. Detective Roan secured the scene, interviewed the employees, viewed the security video and photographed footprints found on the side of the building. The Davises were asked to view the security video whereupon Mike recognized the gun used in the robbery as belonging to Black. The handgun had distinctive characteristics of which Mike was familiar. Detective Roan then proceeded to Black’s house, which was located approximately one hundred yards from the Subway. While asking Black some questions, Detective Roan noticed the black hooded jacket. Detective Roan took this jacket to the Subway where Diana was able to identify the jacket as belonging to the perpetrator. Black and Harbin were then taken to the sheriffs office. At some point Black gave a written consent to have his house searched and, subsequently, the gun was found under the washing machine. Detective Roan also found a camouflage bandana in the dryer. Black admitted that he owned the gun and over one hundred dollars was found in his pocket.

¶ 6. Detective Roan took pictures of Black and Harbin and showed them both to Diana. Detective Roan covered both men’s faces from the nose down. Diana was able to identify Black as the perpetrator from seeing his eyes. Diana also became distraught and began to cry after seeing Black’s picture.

¶ 7. Throughout his arrest and trial, Black claimed that Harbin was responsible for the armed robbery.

DISCUSSION

I. DID THE TRIAL COURT ERR IN DENYING BLACK’S MOTION FOR A JNOV?

¶ 8. In his first issue on appeal, Black asserts that the trial court erred in failing to grant his motion for a JNOV or, in the alternative, a new trial. A motion for a JNOV challenges the legal sufficiency of the evidence. Our standard in regards to these challenges is well-stated: In reviewing the sufficiency of the evidence, all evidence supporting the guilty verdict is accepted as true, and the State must be given the benefit of all reasonable inferences that can be reasonably drawn from the evidence. Bell v. State, 910 So.2d 640, 646(¶ 16) (Miss.Ct.App.2005). Furthermore, the jury determines the credibility of witnesses and resolves conflicts in the evidence. Evans v. State, 725 So.2d 613, 680-81 (¶ 293) (Miss.1997).

¶ 9. Black argues that the State did not prove beyond a reasonable doubt that he was a felon in possession of a firearm or that he committed the armed robbery. However, Black admitted that the gun was his and a list of his felony convictions in Kentucky was included in the indictment. In regards to proving the armed robbery, there was sufficient evidence to do so. Prior to the robbery, Black’s neighbors saw him with the gun, and the neighbors heard him say he needed the gun in case he needed rob someone. This particular gun was identified in the security video from the robbery by the neighbor, Black owned the jacket identified by the Subway employees as worn during the robbery, and the Subway employees recognized Black’s blue eyes from a photograph of him. Although Black claimed that Harbin committed the robbery and that Robert White saw Harbin near the Subway on the night of the robbery, the jury clearly found the State’s witnesses to be more credible. We find no merit to this issue.

II. DID THE TRIAL COURT ERR IN PERMITTING DETECTIVE ROAN TO TESTIFY REGARDING THE PHOTOGRAPHS?

¶ 10. In his second issue on appeal, Black argues that the trial court erred in permitting Detective Roan to testify regarding the photographs of Black and Harbin he showed to the Subway employees. After taking photographs of both Black and Harbin, Detective Roan then took these photos to the Subway for the two employees to review. The photographs were not introduced into evidence and only Diana made an in-court identification of Black.

¶ 11. In Thompson v. State, 483 So.2d 690, 692 (Miss.1986), our supreme court stated:

An impermissibly suggestive pretrial identification does not preclude in-court identification by an eye witness who viewed the suspect at the procedure, unless: (1) from the totality of the circumstances surrounding it, (2) the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

¶ 12. “When there is no attempt to suppress the in-court identification by a pre-trial motion, and no contemporaneous objection is offered to the in-court identification, the issue is not preserved for appellate review except as an attack on the sufficiency of the evidence.” Brown v. State, 829 So.2d 93, 102(¶ 19) (Miss.2002); see also Gilmore v. State, 772 So.2d 1095, 1097(¶ 6) (Miss.Ct.App.2000). In the case sub judice, Black never sought the pretrial suppression of Diana’s testimony as an eyewitness nor offered any contemporaneous objection to Diana’s testimony. Black did cross-examine Diana at trial as to her view of the two photos and her recollection of the events in question. The jury heard and observed Diana’s testimony, clearly believing that Diana’s reaction to viewing the photograph of Black’s eyes was sufficient for identification purposes. This issue is without merit.

III. WAS THE JURY VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 13. In his third issue on appeal, Black argues that the jury verdict was against the overwhelming weight of the evidence. In determining whether a jury verdict is against the overwhelming weight of the evidence the court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Herring v. State, 691 So.2d 948, 957 (Miss. 1997) (citing Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989)). The court will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice. Benson v. State, 551 So.2d 188, 193 (Miss.1989) (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)). “Factual disputes are properly resolved by the jury and do not mandate a new trial.” Benson, 551 So.2d at 193 (citing Temple v. State, 498 So.2d 379, 382 (Miss.1986)).

¶ 14. In reviewing the available facts, as stated and reiterated supra, we cannot find that allowing the verdict to stand would sanction an unconscionable injustice. Black was identified as the perpetrator and admitted to owning the gun used in the robbery. This issue is without merit.

IV. DID THE TRIAL COURT ERR IN SENTENCING BLACK AS A HABITUAL OFFENDER IN LIGHT OF THE CONSTITUTIONAL PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT?

¶ 15. In his fourth issue on appeal, Black argues that the trial court erred in sentencing him as a habitual offender in light of the constitutional prohibition against cruel and unusual punishment. Black claims that he was sentenced without an adequate presentencing hearing. However, the record reflects otherwise. Evidence of three prior convictions in Kentucky was produced via pen-pack. Black did not object to admitting the pen-pack into evidence.

¶ 16. The supreme court has previously ruled that sentencing under Mississippi’s habitual offender statute, Mississippi Code Annotated Section 99-19-81 (Rev.2000), does not violate the prohibition against cruel and unusual punishment. Sanders v. State, 678 So.2d 663, 669 (Miss.1996); Bridges v. State, 482 So.2d 1139, 1140 (Miss.1986). We find no merit to this issue.

¶ 17. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF THREE YEARS; COUNT II ARMED ROBBERY AND SENTENCE OF FORTY YEARS TO RUN CONCURRENTLY TO THE SENTENCE IN COUNT I, BOTH TO BE SERVED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HANCOCK COUNTY.

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


author: CHANDLER, J.,

text:
    Michael A. BOLTON a/k/a Michael Angelo Bolton, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01642-COA.
    Court of Appeals of Mississippi.
    Feb. 13, 2007.

      Michael A. Bolton, Appellant, pro se.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Michael Angelo Bolton was convicted of murder on April 30, 1998. Bolton filed a post-conviction relief (PCR) petition, which was denied and affirmed on appeal. Bolton then filed a motion to clarify his sentence. The court ruled that the motion was nothing more than another PCR, and summarily denied it as being a successive writ. Aggrieved, Bolton petitions this Court to reverse the lower court’s denial of his second PCR and determine:

I. WHETHER THE TRIAL COURT ERRED BY DENYING BOLTON’S REQUEST TO CLARIFY HIS SENTENCE.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On the evening of November 16, 1996, Bolton, along with his wife Tara and Cleveland Floyd, robbed Rickey L. Spratt, a taxicab driver. During the course of the robbery, Spratt was fatally shot by Floyd. The Boltons and Floyd were indicted in May 1997 on a charge of capital murder. Bolton pled guilty to a reduced charge of murder. The State made no recommendation for sentencing, and the circuit court judge ordered Bolton to serve a life sentence in the custody of the Mississippi Department of Corrections on April 30, 1998.

¶ 4. Bolton filed a PCR, which was denied and affirmed on appeal. Bolton v. State, 831 So.2d 1184 (Miss.Ct.App.2002). Bolton then filed a motion to clarify his sentence, which was considered by the circuit court as another PCR and barred as a successive writ.

¶ 5. From that order, Bolton filed a notice of appeal to this Court. Bolton argues that his sentence was ambiguous because he claims that under the plea agreement, he was to receive a life sentence with the eligibility for parole. However, he argues that the time computation of the record department for the Mississippi Department of Corrections does not show any parole date.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED BY DENYING BOLTON’S REQUEST TO CLARIFY HIS SENTENCE.

¶ 6. Bolton argues that the motion to clarify his sentence should have been granted. He asks this Court to order the circuit court to clarify his sentence and for the appropriate documents to be sent to the records department of the Mississippi Department of Corrections for correct time computation. However, Bolton cites no case law nor authority to support his argument. Failure to cite relevant authority obviates the appellate court’s obligation to review such issues. Simmons v. State, 805 So.2d 452, 487(¶ 90) (Miss.2002). Further, this Court will not upset a lower court’s decision to deny a motion for post-conviction relief absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002).

¶ 7. A prisoner may file a motion for post-conviction relief for any one of the reasons enumerated in Mississippi Code Annotated Section 99-39-5(2) (Supp.2006), subject to the requirements of subsection (2), which provides in pertinent part:

A motion for relief under this article shall be made within three (3) years after the time in which the prisoner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, ... in case of a guilty plea, within three (3) years after entry of the judgment of conviction. Excepted from this three-year statute of limitations are those eases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had it been introduced at trial it would have caused a different result in the conviction or sentence....

¶ 8. Bolton pled guilty to murder. The State did not offer a sentence recommendation and on April 30, 1998, the court ordered Bolton to serve a “life” term. Bolton did not file a petition to clarify his sentence until October 28, 2004, well after the statute of limitations had expired. In addition, Bolton neither asserts any exception listed in Section 99-39-5(2), nor do any apply. Thus, Bolton is time-barred from bringing this claim.

¶ 9. Moreover, under Mississippi Code Annotated Section 99-39-23(6) (Supp. 2006), “any order dismissing the prisoner’s motion or otherwise denying relief ... is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.” Again, Bolton offers no exceptions listed in Section 99-39-23(6), nor are any applicable to his case. Miss.Code Ann. § 99-39-23(6). Thus, we find that the lower court’s summary dismissal of Bolton’s second PCR is correct and affirm pursuant to Sections 99-39-5(2) or 99-39-23(6).

¶ 10. Notwithstanding the procedural bar, we will address Bolton’s sentence. Pursuant to Mississippi Code Annotated Section 97-3-21 (Rev.2006), a defendant convicted of murder “shall be sentenced by the court to imprisonment for life in the State Penitentiary.” This Court has held that “[o]ther than first-time offenders convicted of nonviolent crimes, persons convicted after June 30, 1995, are ineligible for parole.” Booker v. Bailey, 839 So.2d 611, 612(¶ 6) (Miss.Ct.App.2003) (citing Miss.Code Ann. § 47-7-3(l)(g)). Bolton was convicted of murder in 1998. Therefore, his sentence to life in prison was correct and he is not eligible for parole.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: ISHEE, J.,

text:
    George JOHNSON a/k/a George Dewayne Johnson a/k/a Lil George, Appellant. v. STATE of Mississippi, Appellee.
    No. 2005-KA-01533-COA.
    Court of Appeals of Mississippi.
    Feb. 13, 2007.

      Wilbert Levon Johnson, attorney for appellant.
    Office .of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. George Johnson, also known as George Dewayne Johnson and Lil George, was convicted of conspiracy to commit murder in the Circuit Court of Coahoma County. He was sentenced as a habitual offender to serve twenty years in the custody of the Mississippi Department of Corrections without the possibility of parole. Johnson’s motion for judgment notwithstanding the verdict or, in the alternative, a new trial was denied by the circuit court. Aggrieved by the court’s decision, Johnson appeals. Finding no error, we affirm.

FACTS

¶ 2. On October 2, 2002, Andrew Hampton was shot in the buttocks; the injury was not fatal. On June 10, 2008, Lorenzo Robinson, also known as Tymoochie, was indicted for the aggravated assault of Hampton. Robinson’s trial was set for July 28, 2003. Hampton and Peppie Deon Wright, who was a witness to the shooting, were scheduled to testify against Robinson. On July 19, 2003, shortly after 2:00 a.m., Hampton was shot nine times while leaving a bar in Clarksdale, Misssissippi; the injuries were fatal. Because Hampton was killed before he could testify against Robinson, the aggravated assault case was dropped.

¶ 3. On November 30, 2004, Johnson was indicted by a Coahoma County grand jury for two counts of conspiracy to commit murder. On June 13, 2005, the indictment was amended to charge Johnson as a habitual offender.

¶ 4. During opening statements at Johnson’s trial, the State asserted that Johnson conspired with Robinson and Kenyon Evans to murder two witnesses: Hampton and Wright. The State further asserted that, although Johnson did not actually shoot Hampton, he was present during the shooting, with a gun, lending some sort of aid. The defense admitted that Johnson was present, and that he had a gun. Nonetheless, the defense asserted that Johnson was nothing more than a witness to a horrible crime. Both the State and the defense acknowledged that the three men were members of the gang known as the Mafia Insane Vice Lords.

¶ 5. The first witness to testify on behalf of the State was Officer Norman Starks, an investigator with the Clarksdale Police Department. Officer Starks testified that the murder weapon was found at Evans’s house, and that Evans was subsequently charged with Hampton’s murder. According to Officer Starks, Johnson initially told him that he learned about the shooting in the newspaper, but later gave a statement admitting that he was involved with the shooting through his gang affiliation with Robinson. Officer Starks further testified that Michael Ingram, a Mafia Insane Vice Lords member who was also known as Spanky, stated that Robinson gave the order to kill Hampton, and Evans was the “enforcer.”

¶ 6. Ingram testified that he was a member of the Mafia Insane Vice Lords with Robinson, Evans, and Johnson. He further testified that, on July 19, 2008, before Hampton was murdered, he had a conversation with Robinson and Evans during which Robinson stated that he had offered Hampton $5,000 not to testify against him in court. According to Ingram, Evans replied to Robinson: “[d]on’t worry about it. I got him.” Ingram testified that he took Evans’s statement to mean that he planned to kill Hampton.

¶ 7. Ingram testified that, later on that night, on July 19, 2003, Evans pulled up in a car with Johnson riding in the passenger seat; Ingram got in the car with the men and they went looking for Hampton’s car. Once Evans spotted Hampton’s car outside of a bar, Johnson attempted to hand Ingram a pistol. After Ingram refused to take the pistol, the three men got out of the car and walked in the direction of Hampton’s car. Ingram testified that he did not want to go, and that he believed that Johnson also did not want to go. He further testified that he stopped walking with Evans and Johnson and went to relieve himself behind a nearby building. Johnson continued to walk with Evans. After Ingram heard multiple shots being fired, he “peeped around the corner” and saw Hampton’s body lying on the ground. He testified that he ran home and cried.

¶ 8. Ingram also testified that, after the shooting, Evans called him and asked whether anybody had seen “us.” Ingram took “us” to mean Evans and Johnson.

¶ 9. Latasha Ross, who witnessed the shooting, testified that she talked with Evans for about five or ten minutes before the shooting began and, during that time, she only said hello to Johnson. Ross testified that Johnson was not speaking to anyone, but “just standing.” Ross further testified that when Hampton came out of the bar, Evans said nothing to him and just began shooting. Ross immediately fled the scene.

¶ 10. On July 12, 2005, Johnson was convicted of one count of conspiracy to commit murder, but was acquitted of the second count of conspiracy to commit murder. On July 14, 2005, the circuit court sentenced Johnson to serve twenty years, without parole, in the custody of the Mississippi Department of Corrections. The circuit court denied Johnson’s motion for JNOV or, in the alternative, a new trial. Johnson appeals, asserting the following issues for this Court’s review:

I. Whether the trial court erred in denying Johnson’s motion for a new trial.

II. Whether the trial court erred in not granting Johnson’s motion for a directed verdict and motion for JNOV.

ISSUES AND ANALYSIS

I. Whether the trial court erred in denying Johnson’s motion for a new trial.

¶ 11. A motion for a new trial challenges the weight of the evidence. Beckum v. State, 917 So.2d 808, 812(¶ 10) (Miss.Ct.App.2005) (citing Carr v. State, 774 So.2d 469(¶ 15) (Miss.Ct.App.2000)). ‘When reviewing a trial court’s denial of a motion for a new trial, this Court must consider the evidence in the light most favorable to upholding the verdict.” Id. at 818(¶ 14). ‘We must keep in mind that it is the jury’s responsibility to resolve matters regarding the weight of the evidence and the credibility of witnesses.” Id. It is a fundamental principle of law that a jury verdict will not be disturbed except in the most extreme of situations. Washington v. State, 800 So.2d 1140, 1144(¶ 10) (Miss. 2001) (citing Manning v. State, 735 So.2d 323, 333(¶ 10) (Miss.1999)). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Walker v. State, 881 So.2d 820, 831(¶ 32) (Miss.2004) (citing Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998)); Dilworth v. State, 909 So.2d 731, 737 (¶¶ 20-21) (Miss.2005).

¶ 12. Johnson asserts that the State presented no credible evidence to establish that he conspired with Robinson and/or Evans to murder Hampton. Johnson maintains that, at most, the evidence suggested that he may have had some knowledge that a crime was about to be committed, but nothing more. In support of his position, Johnson cites Ross’s testimony that she saw Evans shoot Hampton, and notes that, regarding Johnson’s actions, Ross only testified that Johnson spoke to her. Johnson also notes Officer Starks’s testimony that the murder weapon was recovered from Evans’s house, not his. Based on this testimony, Johnson asserts that the overwhelming weight of the evidence was undoubtedly in his favor. We disagree.

¶ 13. After reviewing the evidence in support of Johnson’s conviction, we cannot say that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Ingram testified that he, Johnson, Evans, and Robinson were members of a gang, and that “the consequences” of refusing to participate in a mission of the gang was death. Ingram further testified that, on July 19, 2003, Evans decided to kill Hampton and attempted to recruit Ingram. Later that night, Evans and Johnson, who were both carrying guns, picked up Ingram and went looking for Hampton. Once they spotted Hampton’s car, Johnson attempted to give Ingram a pistol. Ingram testified that Johnson stayed with Evans during the shooting, even though Ingram left the two men to relieve himself. We find that the facts and reasonable inferences drawn from those facts strongly point toward Johnson’s guilt. Therefore, we decline to disturb the jury verdict in this case. This issue is without merit.

II. Whether the trial court erred in not granting Johnson’s motion for a directed verdict and motion for JNOV.

¶ 14. A motion for directed verdict or JNOV challenges the legal sufficiency of the evidence, “since each requires consideration of the evidence before the court when made.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). Reversal on the issue of legal sufficiency can only occur when evidence of one or more of the elements of the charged offense are such that “reasonable and fair-minded jurors could only find the accused not guilty.” Purnell v. State, 878 So.2d 124, 129(¶ 14) (Miss.Ct. App.2004) (citing Hawthorne v. State, 835 So.2d 14, 21 (¶ 31) (Miss.2003)). However, where substantial evidence of such quality and weight exists to support the verdict, and where reasonable and fair-minded jurors may have found the appellant guilty, we must affirm the judgment of the trial court. McClendon v. State, 852 So.2d 43, 47(¶ 11) (Miss.Ct.App.2002) (citing Baker v. State, 802 So.2d 77, 81(¶13) (Miss. 1995)).

¶ 15. Under this assignment of error, Johnson reasserts his argument that the State presented no credible evidence to show that he was an active participant in Hampton’s murder. He argues that the State failed to show that he was anything other than a knowing spectator. Johnson insists that, because the State presented no evidence of any voluntary agreement with Evans or Robinson, there was no reasonable basis for finding him guilty of conspiracy.

¶ 16. Johnson’s argument fails to convince us that reasonable jurors could have only found him not guilty. The evidence shows that Johnson was carrying a pistol in the car as they drove to find Hampton’s car. Moreover, Johnson concedes in his appellate brief, that the evidence suggested that he may have had some knowledge that a crime was about to be committed. Consequently, when Johnson attempted to provide Ingram with a gun immediately after they spotted Hampton’s car he did so with the knowledge that a crime was about to be committed. Reasonable jurors could have deduced from these facts that Johnson conspired with Robinson and/or Evans to murder Hampton. This issue is without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF CONSPIRACY TO COMMIT MURDER AND SENTENCE, AS A HABITUAL OFFENDER, OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

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

      . The first count of conspiracy to commit murder named Hampton as the victim. The second count of conspiracy to commit murder named Wright as the victim. Johnson was found guilty of the former, but not guilty of the latter.

      . Johnson was previously convicted of escape in the Circuit Court of Coahoma County on January 12, 2001. He was also previously convicted of possession of a firearm by a convicted felon in the U.S. District Court of the Northern District of Mississippi on April 27, 2005.

      . Ingram testified that he did not want to go on the "mission” to "[k]ill Andrew Hampton” because Hampton had been a close friend since childhood. Nevertheless, Ingram also feared that he might suffer the consequences, i.e., death, if he refused to go along, as he was merely a "soldier,” or non-ranking member, in the gang.