text:
    Aitvar Andre JONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02088-COA.
    Court of Appeals of Mississippi.
    April 4, 2006.
    Rehearing Denied Aug. 29, 2006.

      William C. Stennett, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Aitvar Andre Jones was convicted in the Circuit Court of Lee County of one count of sexual battery and sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections, with thirteen years suspended, and five years’ post-release supervision. Jones appeals arguing that the judgment was supported by insufficient evidence, and that the judgment was against the overwhelming weight of the evidence. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. S.S. is a relative of Rhonda Jones, who is married to Andre Jones. S.S. was temporarily staying with Rhonda and Andre, who lived in Tupelo, Mississippi, so that she could live closer to her employment. S.S. testified that during the morning of December 19, 2002, she was in the bathroom curling her hair when Andre entered the bathroom wearing only boxer shorts. She claimed that Andre grabbed her and attempted to rub against her. According to S.S., Andre told her not to tell Rhonda that he was wearing only boxers because “she would have a fit.” S.S. stated that she told Andre to stop, because he was married to her relative.

¶ 3. Andre then drove S.S. to work at her place of employment, whereupon she asked him to return at one o’clock to give her a ride home because, according to her, she had no other means of transportation. S.S. testified that when Andre left, she attempted to call her boyfriend and her grandmother to get a ride home, but was unable to secure transportation with either of them. Andre picked S.S. up from work to drive her back to her home in a neighboring town. However, he stated that he had to stop at his house first to cut his hair.

¶4. S.S. testified that upon arriving at Andre’s house, he approached her on his knees while she was sitting on the couch. She claimed that he then pulled her from the couch and sexually propositioned her. S.S. testified that she repeatedly attempted to push Andre away, telling him “that’s nasty because you’re married to my [relative].” Despite her efforts, she stated that Andre held her down and penetrated her. She continued to push Andre off of her, telling him no, whereupon he “just gave up.” At this point, according to S.S., Andre told her not to tell her “nosy cousin” what had happened.

¶ 5. S.S. testified that Andre then drove her to her home; she explained that Andre was her only ride home, because she “didn’t want to call [her] mama because [she knew] how [her] mama would have reacted when she would have got there.” On the way, Andre stopped at his mother’s house, a car dealership, and a convenience store. At his mother’s house, Andre went inside while S.S. stayed in the car. Andre’s brother Eric came out and spoke with S.S. At the car dealership, Andre went inside to check on his wife’s car, while S.S. again stayed in the car. At the store, S.S. was left alone in the car while Andre went in to get a beer. S.S. stated that she did not leave the car and call for help during any of these stops because Andre had threatened her not to tell “her nosy cousin,” and she feared for her safety. She also claimed that, during the trip, Andre was “laughing and said that he had messed with a younger girl than me.” Upon arriving at S.S.’s home, Andre asked her for a drink of water, and she complied. According to S.S.’s version of events, Andre told her that “he was glad that I worked in Tupelo because he could get me all the time.” Andre also told S.S. that she “was lucky that [her] brother was coming home for school or he would get [her] again.”

¶ 6. After Andre had left her at her home, S.S. called her boyfriend and told him what had happened. She then told her grandmother, who contacted her mother. The same day S.S. went to the Tupelo police department and reported the sexual battery. Andre also went to the police station on December 19 and gave a statement which was transcribed by Detective Ginger Moore. He returned to the police station and made a second statement on the morning of December 30. He claimed that the second statement did not materially differ from the first statement, but that it merely supplied additional facts which had been left out of the first statement. In his first statement, Andre claimed that he had sex with his wife in the morning, and made no mention of sexual encounters with S.S. In his second statement, Andre admitted having sex with S.S., but claimed that it was consensual.

¶ 7. According to Andre’s second statement, he woke up on the morning of December 19 and had sex with his wife. She then left to take their daughter to the doctor. Andre fell back to sleep, but was awakened by someone who sat on the bed and then climbed onto him and straddled his waist. Thinking the person to be his wife, Andre penetrated her. At trial, Andre stated that he pushed S.S. off of him when he fully awoke and realized that she was not his wife. He then took S.S. to work, and returned at 1 p.m. to pick her up and drive her back to her home in a neighboring town. Andre claimed that he stopped first at his house, so that S.S. could get her things and he could cut his hair. While he was cutting his hair, he claimed that S.S., “[c]ame into the bathroom and started rubbing on me and making sexual remarks toward me.” When he finished cutting his hair, Andre left the bathroom to find S.S. naked. Andre claims that he acceded to S.S.’s demand for sex due to her threat to tell her mother that Andre raped her if he did not have sex with her.

¶ 8. Andre was indicted on the charge of sexual battery. The trial, in which both S.S. and Andre testified, was held on August 31, 2004. The jury returned a verdict of guilty against Andre, and the court imposed a sentence of twenty years in the custody of the Mississippi Department of Corrections, with thirteen years suspended, and five years of post-release supervision. From this judgment, Andre appeals.

I. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUSTAIN THE VERDICT

¶ 9. The test for sufficiency of the evidence is stated as follows:

[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” However, this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In the instant case, the testimony of S.S. establishes that Andre forced her to have sex with him against her will. This evidence is sufficient to support a verdict of guilty of sexual battery.

¶ 10. Andre argues, however, that the testimony of S.S. was insufficient to sustain a verdict against him in the absence of other evidence supporting her testimony. However, “[n]umerous cases hold that a rape victim’s uncorroborated testimony alone is sufficient where it is consistent with the circumstances.” Taylor v. State, 744 So.2d 306, 312(¶ 16) (Miss.Ct.App.1999) (citing Goss v. State, 465 So.2d 1079, 1082 (Miss.1985); Barker v. State, 463 So.2d 1080, 1082 (Miss.1985); Blade v. State, 240 Miss. 183, 188, 126 So.2d 278, 280 (1961); Buchanan v. State, 225 Miss. 399, 409, 83 So.2d 627, 630 (1955)).

¶ 11. Even assuming that S.S.’s uncorroborated testimony was insufficient, “[t]his Court recognizes as corroborating evidence the victim’s physical and mental condition after the incident, as well as the fact that she immediately reported the rape.” Christian v. State, 456 So.2d 729, 734 (Miss.1984). In the instant case, S.S. testified that she reported the sexual battery to her boyfriend and grandmother almost immediately after being dropped off by Andre. It is undisputed that she went to the police station on the night of December 19 and reported the incident. Furthermore, Detective Moore testified that S.S. was in an excited state when she reported the incident, marked in S.S.’s unique circumstance by smiling and rapid speech.

¶ 12. Accordingly, the evidence was sufficient to sustain a verdict of guilty of sexual battery.

II. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 13. Since the evidence is sufficient to sustain the verdict, we next turn to the question of whether the verdict is contrary to the weight of the evidence. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844(¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). The appellate court sits as a hypothetical “thirteenth juror.” Id. As such, the Court weighs the evidence “in the light most favorable to the verdict.” Id. If, in this position, the Court disagrees with the verdict of the jury, “the proper remedy is to grant a new trial.” Id. But, “[t]his difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves.” Id.

¶ 14. After a careful review of the record we find that the verdict of the jury was not against the overwhelming weight of the evidence. “It is not our function to determine whose testimony to believe.” Taylor, 744 So.2d at 312(¶ 17). “We will not disturb a jury’s finding on conflicting testimony where there is substantial evidence to support the verdict.” Id. Considering the evidence in the light most favorable to the verdict, we find that the jury was presented two conflicting stories of the events that transpired on December 19, 2002, and it was well within the province of the jury to choose the version of events which it found most credible.

¶ 15. Andre urges that S.S.’s “conduct does not support her allegations.” He claims that the evidence points in his favor because S.S. asked Andre to pick her up from work even after he had made sexual advances toward her in the morning; because she allowed Andre to pick her up from work and came back to the house with him; because no physical evidence, such as scratches or bruises, were found on S.S.; and because she did not flee from Andre after the alleged sexual battery occurred, despite the fact that Andre stopped his car at several public places including a car dealership and a convenience store. Also, Andre argues that S.S.’s behavior when she gave her statement was inconsistent with that of a victim of sexual crime because she was smiling and giggling.

¶ 16. While the issues raised by Andre certainly address the credibility of S.S.’s testimony, we find that each issue addressed by Andre was explained by S.S. and Detective Moore’s testimony. S.S. claimed that she only accepted a ride with Andre back from work because she was unable to secure a ride by other means, and she was afraid to contact her mother who was out of town. The testimony given by Detective Moore established that many sexual crimes leave behind no physical evidence, especially when the victim is, like S.S., sexually active. S.S. claimed that she did not flee from Andre’s car because he had threatened her, and because she saw no opportunity to escape or alert anyone to her situation. Finally, although Detective Moore testified that she was initially concerned about S.S’s demeanor during her first statement because she was smiling and giggling, she became convinced that this was simply an aspect of S.S.’s personality that became evident when she was in an excited state. Detective Moore testified that she was convinced of the credibility of S.S.’s testimony because her testimony remained consistent throughout the course of the proceedings against Andre.

¶ 17. The jury was further entitled to weigh the credibility of Andre’s testimony regarding S.S.’s behavior. Andre’s initial statement made no mention of sexual encounters with S.S., however, apparently when he was informed that a rape kit had been performed on S.S., Andre made a second statement which admitted sexual contact with S.S., but claimed it was consensual. At trial, Detective Moore testified as to her belief that Andre’s statements and testimony were plagued by inconsistencies. Furthermore, Detective Moore testified that Andre’s wife weighed at least eighty pounds more than S.S., making Andre’s statement that he thought S.S. was his wife on the morning of December 19 seem implausible.

¶ 18. We find that the jury was perfectly reasonable in adopting S.S.’s version of the December 19 sexual encounter rather than Andre’s; therefore, we affirm.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT PAROLE, WITH THIRTEEN YEARS SUSPENDED, AND FIVE YEARS POST-RELEASE SUPERVISION, FINE OF $2,000 AND MUST REGISTER AS SEX OFFENDER, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . On January 13, 2003, S.S. returned to the police station and gave a statement which was transcribed by Detective Ginger Moore.

      . It is unclear from his statement and trial testimony whether he claimed that he realized it was S.S. before or after the penetration occurred.

      . Although a rape kit was performed on S.S., it became moot because Andre subsequently admitted to having sex with S.S.

      . From the trial transcript, it is evident that S.S. was smiling and speaking very quickly during her testimony at trial due to her nervousness.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Lyn HERRON, Appellant v. Johnny HERRON, Appellee.
    No. 2005-CA-00332-COA.
    Court of Appeals of Mississippi.
    May 2, 2006.
    Rehearing Denied Aug. 22, 2006.

      J. Tyson Graham, Columbus, attorney for appellant.
    Curtis H. Austin, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Lyn and Johnny Herron divorced in February 2004 on the ground of irreconcilable differences. The parties submitted the division of marital assets to the Chancery Court of Lowndes County, but Lyn, aggrieved by the court’s division of the assets, now appeals. Finding error, we reverse and remand in part and affirm in part.

FACTS

¶ 2. Lyn and Johnny Herron were married in 1996. No children were born of the marriage. Johnny filed for divorce in February 2004. The parties agreed to divorce on the ground of irreconcilable differences. The parties then submitted the division of marital assets to the Chancery Court of Lowndes County. The court found the following as marital assets: (1) real property in Alabama; (2) a 2000 Ford F-150 truck (in which the parties had $6,800 in equity); (3) all personal property acquired during the marriage, including the marital home; (4) Johnny’s 401(k) account, from July 1996 until the parties separated in February 2004; and (5) $10,000 in savings which the court found that Lyn had withdrawn from the parties’ savings account. The court ordered the Alabama land, the personal property acquired during the marriage and the marital home to be sold and the equity divided between the parties. The court further stated that Lyn was entitled to half of Johnny’s 401(k) account from the period of July 1996 through February 2004, measured by subtracting the July 1996 balance from the February 2004 balance. The court also stated that Lyn was to pay Johnny half of the $10,000 withdrawn from the parties’ savings account. The 2000 Ford F-150 was awarded to Johnny. Aggrieved by the chancellor’s division of the marital assets, Lyn appeals. She asserts: (1) that the court erred in ordering her to pay Johnny half of the $10,000 savings, because it was he that withdrew the fund from the parties’ savings account; (2) that the court erred in awarding Johnny the Ford F-150, as it was purchased during the marriage and had $6,800 in equity; and (3) that the court erred by failing to take into consideration, as fraudulent transfers, Johnny’s transfer to his son, for no consideration, the parties’ camper trailer and a 2000 four-wheeler, as well as the $3,500 withdrawn by Johnny from the parties’ savings account prior to the parties’ separation.

STANDARD OF REVIEW

¶ 3. This Court’s standard of review regarding domestic relations matters is a limited one. A & L, Inc. v. Grantham, 747 So.2d 832, 838(¶ 18) (Miss.1999). We will not disturb the findings of a chancellor “unless manifestly wrong, clearly erroneous, or if the chancellor applied the wrong legal standard.” Id.

ISSUES AND ANALYSIS

I. Whether the court erred in ordering her to pay Johnny half of the $10,000 savings, because it was he that withdrew the fund from the parties’ savings account.

¶ 4. The chancellor found that Lyn withdrew $10,000 from the parties’ savings account, and consequently ordered her to pay Johnny half of that sum. Clear and undisputed testimony from Johnny in the record shows that Johnny, not Lyn, withdrew the $10,000. Accordingly, the chancellor was clearly in error with regard to this finding. We thus reverse and remand as to this issue.

II. Whether the court erred in awarding Johnny the Ford F-150, as it was purchased during the marriage and had $6,800 in equity.

¶ 5. “Marital property is defined as any and all property acquired during the marriage.” Grantham, 747 So.2d at 838(¶ 18) (citing Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994)). Such marital assets are subject to equitable distribution by the chancellor. Id. “In making an equitable distribution of property, a chancellor is not required to divide the property equally.” Humphries v. Humphries, 904 So.2d 192, 198(¶ 24) (Miss.Ct.App.2005) (citing Drumright v. Drumright, 812 So.2d 1021, 1026(¶ 14) (Miss.Ct.App.2001)). The matter is within the chancellor’s discretion, as she has all equities and relevant circumstances in mind and is in the best position to decide such matters. See Pittman v. Pittman, 652 So.2d 1105, 1109 (Miss.1995). The polestar consideration in the marital property division process is fairness. Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994).

¶ 6. The chancellor fully outlined the reasoning behind his decision by discussing the application of the Ferguson factors to the facts of the case sub judice. See id. at 928 (enunciating factors to be considered by chancellor in determining equitable distribution of marital property). We see nothing in the record indicating that the chancellor’s decision to award the Ford F-150 to Johnny was unfair or inequitable. We therefore cannot say that the chancellor abused her discretion or was clearly erroneous or manifestly wrong in awarding Johnny the vehicle. Accordingly, we affirm as to this issue.

III. Whether the court erred by failing to take into consideration, as fraudulent transfers, Johnny’s transfer to his son, for no consideration, the parties’ camper trailer and a 2000 four-wheeler, as well as the $3,500 withdrawn by Johnny from the parties’ savings account prior to the parties’ separation.

“ ‘When examining a conveyance to determine if it is fraudulent, a court searches for certain ‘badges of fraud,’ or suspicious circumstances, which usually accompany a fraudulent conveyance.’ ” Myers v. Myers, 741 So.2d 274, 281(¶ 29) (Miss.Ct.App.1998) (quoting Southeast Bank of Broward, Fla., N.A. v. I.P. Sarullo Enter., Inc., 555 So.2d 704, 707 (Miss.1989)). “Badges of fraud” in this context include:

[ijnadequacy of consideration, transaction not in usual course or mode of doing business, absolute conveyance as security, secrecy, insolvency of grantor, transfer of all his property, attempt to give evidence of fairness ..., retention of possession, failure to take a list of the property covered by the conveyance ..., relationship of the parties, and transfer to person having no apparent use for the property.

Grantham, 747 So.2d at 843(¶ 48) (quoting Reed v. Lavecchia, 187 Miss. 413, 424-25, 193 So. 439, 441 (1940)).

¶ 7. As to the camper/trailer, Johnny stated that he signed it over to his son in December of 2003 “to live in at school to keep from driving back and forward home.” Johnny further contends that he signed over the four-wheeler to his son because his son had originally bought it; he contends that it was only originally in his name because his son was too young to put it in his own name at the time. As to the $3,500, Johnny claimed that he withdrew it right before the separation at the behest of his former lawyer. He stated that he used the funds to pay off his credit card because he and Lyn “had run some bills up” on it.

¶ 8. In her discussion of the second Ferguson factor (the degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets), the chancellor explicitly mentioned as property accumulated during the marriage the camper, the 2000 four-wheeler, and the $3,500 withdrawn by Johnny. However, she did not include them in her final division of the marital property. Thus, we find it likely that she was satisfied that these conveyances by Johnny to his son were not fraudulent. Because the chancellor clearly considered (but did not include) this property in making the final distribution of marital property, we cannot say that she “failed to consider” the items as Lyn contends. We therefore find that the chancellor did not abuse her discretion, make a clear or manifest error, or apply an erroneous legal standard in not including these items in the distributed property. Consequently, this assignment of error is without merit.

¶ 9. THE JUDGMENT OF THE CHANCERY COURT OF LOWNDES COUNTY IS REVERSED AND REMANDED IN PART AND AFFIRMED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED IN EQUAL PARTS TO THE APPELLANT AND APPELLEE.

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

      . Personal property acquired by the parties during the marriage included shop tools (valued at $8,500), guns (valued at $100), credit union savings in the amount of $3,500 withdrawn by Johnny after the parties separated, a camper (valued at $1,000), a four-wheeler (valued at $700), two flatbed trailers built by Johnny, a tractor (valued at $4,500), a computer (valued at $600), and household furnishings (valued at approximately $1,000).


author: LEE, P.J.,

text:
    Joseph Stanley McFARLAND, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00416-COA.
    Court of Appeals of Mississippi.
    Aug. 15, 2006.

      Jonathan Michael Farris, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

LEE, P.J.,

for the Court.

¶ 1. The appellant’s motion for rehearing is granted. The original opinion is withdrawn, and the following opinion is substituted therefor.

PROCEDURAL HISTORY

¶ 2. On October 16, 2008, Joseph Stanley McFarland was convicted in the Circuit Court of Forrest County of armed robbery. McFarland was sentenced to serve thirty years in the custody of the Mississippi Department of Corrections. On January 7, 2004, McFarland filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The circuit court never ruled on these motions. On March 2, 2004, McFarland filed a second motion for a new trial, as well as a notice of appeal.

¶ 3. This Court originally dismissed McFarland’s appeal for lack of jurisdiction. We found that McFarland had failed to file his motion for a JNOV or new trial within the ten-day requirement as prescribed by Rule 10.05 of the Uniform Rules of Circuit and County Court and failed to file a timely appeal according to Rule 4(a) of the Mississippi Rules of Appellate Procedure.

¶ 4. However, in his motion for rehearing, McFarland states that the Forrest County Public Defender’s Office was at fault for failing to timely appeal. In fact, Jonathan Farris, assistant public defender, admits that William Ferrell, McFarland’s trial and appellate counsel who also works for the Forrest County Public Defender’s Office, inadvertently failed to timely file McFarland’s motion for a new trial as well as the notice of appeal.

¶ 5. This Court may, for good cause shown, and in criminal cases only, suspend the requirements of Rule 4. M.R.A.P. 2(c). An out-of-time appeal is granted by this Court “where a person is convicted of a crime and through no fault of his own is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court.” Jones v. State, 355 So.2d 89, 90 (Miss.1978). “We may suspend rules 2 and 4 “when justice demands’ to allow an out-of-time appeal in criminal cases.” McGruder v. State, 886 So.2d 1, 2(¶ 5) (Miss.2003) (quoting Fair v. State, 571 So.2d 965, 967 (Miss.1990)). It is clearly not McFarland’s fault that his appeal was untimely; therefore, we will suspend the rules and address the merits of McFarland’s appeal.

¶ 6. McFarland’s issues on appeal are as follows: (1) the trial court erred in denying his motion to suppress evidence; and (2) the trial court erred in denying his motion for a directed verdict and in refusing to grant a peremptory instruction.

FACTS

¶ 7. Around two o’clock on the morning of March 14, 2003, the Shell Finish Station in Hattiesburg, Mississippi, was robbed. An employee of the gas station, William Rushing, testified that a man brandishing a gun entered the store, pointed the gun at Rushing’s face, informed Rushing that it was a stick-up, and demanded money. Rushing handed the man money while the man grabbed some packs of Newport cigarettes. Rushing was told to get on the floor, where he remained for a few minutes. After the man left, Rushing locked the door then called the police and his manager. Rushing was able to give the police a description of the man, stating that he was a black male wearing a black jacket, black jeans and a black bandana around his face.

¶ 8. Charlie Reeves, a friend of Rushing, was also in the store at the time of the robbery. Reeves’s account of the robbery was similar to Rushing’s account. Reeves’s description of the robber was similar, except Reeves noted white stripes on the black jacket. Reeves also remembered seeing maroon on some of the man’s clothing. Reeves further stated that the man turned to leave but then came back to grab the cigarettes.

¶ 9. Rick Monday, the district supervisor for the gas station, arrived approximately thirty minutes after the robbery to view the in-store video surveillance tape. As he was viewing the tape, Monday identified Joseph McFarland as the man who robbed the store. McFarland had previously worked at the store and Monday knew him.

¶ 10. Around this same time, Officer Tony Fontaine of the Hattiesburg Police Department, witnessed a car run a stop sign. As Officer Fontaine pulled the car over, the occupant exited the car. As a precaution, Officer Fontaine approached the occupant and patted him down, finding a large lump which turned out to be approximately $200 in cash and two packs of Newport cigarettes. Officer Fontaine knew that there had recently been an armed robbery nearby. Officer Fontaine radioed Officer Jason Denham, who was at the gas station and had initially broadcast a description of the suspect, for a better description of the suspect. The description of the suspect matched the man Officer Fontaine had pulled over as well as the exact items taken in the robbery, so Officer Fontaine took the man into custody. A gun was later found under some clothes on the backseat of the car. The man in custody was determined to be Joseph McFarland.

DISCUSSION

I. DID THE TRIAL COURT ERR IN DENYING MCFARLAND’S MOTION TO SUPPRESS EVIDENCE?

¶ 11. In his first argument on appeal, McFarland argues that there was no probable cause to search him or the car he was driving without a warrant. McFarland is under the impression that Officer Fontaine pulled him over based on a hunch then proceeded to illegally search the car. We must determine whether the trial court’s findings, considering the totality of the circumstances, are supported by substantial credible evidence. Price v. State, 752 So.2d 1070(¶ 9) (Miss.Ct.App.1999).

¶ 12. A police officer has the authority to stop a motorist if he believes that person is committing a traffic offense. Burnett v. State, 876 So.2d 409, 411(¶ 6) (Miss.Ct.App.2003). Furthermore, the officer may take precautions to ensure his personal safety. Dees v. State, 758 So.2d 492, 495(¶ 9) (Miss.Ct.App.2000). If, while taking these precautions, the officer sees contraband and arrests the motorist, he may then search the vehicle. Townsend v. State, 681 So.2d 497, 502 (Miss.1996).

¶ 13. Officer Fontaine testified that he saw McFarland’s car run a stop sign. Officer Fontaine also stated that after he pulled the car over, McFarland immediately exited the car. Officer Fontaine said that “[f]or officer safety, I patted him down.” The following exchange occurred between the State and Officer Fontaine during the suppression hearing:

Q: And did he, in fact, allow you to do that? [conduct a pat down]
A: He did.
Q: And what, if anything, did you find?
A: I felt a large lump of some type of material that I believed to be cigarettes and money in a jacket that he had on in the front pocket.
Q: I see. And when you felt that, what, if anything, did you do?
A: I asked him what it was. He said, my cigarettes and my money. At that time I knew we were out on an armed robbery call. I noticed that he fit the description. His vehicle fit the description, so I called an officer that was on the scene and asked him what was taken. He said about $200 and two packs of Newport cigarettes.

¶ 14. In his ruling denying McFarland’s motion to suppress, the trial court found that Officer Fontaine did have reason to stop the car for running the stop sign and that “the reasonable suspicion was developed as he [Fontaine] testified.... ” The trial court’s findings were supported by substantial credible evidence, thus we find no merit to this issue.

¶ 15. We note that McFarland erroneously believes that because Officer Fon-taine never issued a citation for the traffic violation then the stop was not valid. That is not the case. See McCollins v. State, 798 So.2d 624, 628(¶ 16) (Miss.Ct.App. 2001).

II. DID THE TRIAL COURT ERR IN DENYING MCFARLAND’S MOTION FOR A DIRECTED VERDICT AND IN REFUSING TO GRANT A PEREMPTORY INSTRUCTION?

¶ 16. In his other argument, McFarland argues that the trial court erred in denying his motion for a directed verdict and in refusing to grant a peremptory instruction. McFarland claims that the evidence was insufficient for a conviction. “The standard of review for a denial of a directed verdict, peremptory instruction, and a JNOV are identical.” Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003). All challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The Court reviews the trial court’s finding regarding the sufficiency of the evidence at the time the motion for a directed verdict or peremptory instruction is overruled. Holloman v. State, 656 So.2d 1134, 1142 (Miss. 1995). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005). Furthermore, it is well-settled law that 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).

¶ 17. We find that there was sufficient evidence for the jury to find McFarland guilty of armed robbery. The store supervisor, Rick Monday, identified McFarland from the surveillance tape of the robbery. Both Rushing and Reeves identified the jacket that McFarland was wearing as the one the robber was wearing. Furthermore, McFarland was apprehended shortly after the robbery with the exact items, including the cigarettes and the money, stolen from the store as well as a gun in the backseat of the car he was driving. This issue is without merit.

¶ 18. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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


author: GRIFFIS, J.,

text:
    Raymond Keith THOMAS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00574-COA.
    Court of Appeals of Mississippi.
    Aug. 22, 2006.

      David F. Linzey, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Raymond Keith Thomas was convicted of armed robbery in the Circuit Court of Lincoln County. He was sentenced as an habitual offender, to serve forty-three years in the custody of the Mississippi Department of Corrections, without the possibility of parole, suspension, or. reduction. Thomas appeals and argues that the trial court erred in admitting his confession into evidence. We find no error and affirm.

FACTS

¶2. On October 12, 2003, at 4:45 a.m., the C-Express store in Brookhaven was robbed. A man, armed with a pellet gun, robbed the clerk of $249, two packs of cigarettes, and a cigarette lighter. He also robbed store clerk Katherine Ganoe of her boyfriend’s car.

¶3. Brookhaven Assistant Police Chief Nolan Jones reviewed the store’s surveillance tapes and recognized the robber as Thomas. Ganoe identified Thomas’s picture out of a line up.

¶ 4. On October 31, the Brookhaven Police Department arrested Thomas and transported him from the Hinds County Detention Center. On November 4, Thomas gave a taped and written confession to Jones and Captain Roger L. Wilson. He had been read his Miranda rights and had signed a waiver of his rights. He told the officers that he was “coming off of something.” Jones asked if he knew what he was doing, and Thomas replied that he did. Jones continued the interrogation, which lead to the confession.

¶ 5. At the suppression hearing, Thomas testified that he was under the influence of crack and Lorcet at the time of the confession. He said he took the drugs on October 31, in the Hinds County Detention Center. The circuit court overruled the motion to suppress, finding the responses in the tape were more coherent than the responses Thomas gave in the motion hearing.

STANDARD OF REVIEW

¶ 6. We review denials of motions to suppress confessions for manifest error or for whether the decision is contrary to the overwhelming weight of the evidence. Carlisle v. State, 822 So.2d 1022, 1026(¶ 11) (Miss.Ct.App.2002). As long as the correct principles of law are applied, and the finding of voluntariness is factually supported by the evidence, we will affirm. Id.

ANALYSIS

¶ 7. Thomas argues that his Miranda waiver was not knowing, intelligent or voluntary since he was under the influence of drugs at the time. Thus, he argues his confession was inadmissible. In the alternative, he maintains the judge should have corrected this problem by granting him a directed verdict. The State counters by arguing that the confession was voluntary.

¶ 8. In order to waive one’s right against self-incrimination, the waiver must be knowing, intelligent, and voluntary. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The State must prove beyond a reasonable doubt that the confession was voluntary. Cox v. State, 586 So.2d 761, 763 (Miss. 1991). To be voluntary, the defendant must be aware of the nature of his self-incrimination rights and of the consequences of waiving them. Brown v. State, 839 So.2d 597, 600(¶12) (Miss Ct.App. 2003).

¶ 9. Intoxication does not necessarily render a confession involuntary. Bag-gett v. State, 793 So.2d 630, 634(¶ 9) (Miss. 2001). “The admissibility of the confession depends on the degree of intoxication.” Id. (quoting O'Halloran v. State, 731 So.2d 565, 571 (Miss.1999)). For example, the supreme court affirmed the lower court’s decision to exclude a confession, where the defendant was so acutely intoxicated he was maniacal. State v. Williams, 208 So.2d 172, 175 (Miss.1968). In Morris v. State, 913 So.2d 432, 434(¶ 7) (Miss.Ct.App. 2005), we upheld the decision to admit a confession where there was testimony that the defendant’s eyes were not dilated, his speech was not slurred, he did not smell of alcohol, and he was coherent. The supreme court upheld the admissibility of a confession given thirteen hours after the defendant measured .16 blood alcohol content, where the defendant’s speech and gait were normal. Stevens v. State, 458 So.2d 726, 729 (Miss.1984).

¶ 10. We now turn to the evidence of intoxication in this case. At the suppression hearing, Thomas testified that he was under the influence of crack and Lorcet at the time he confessed on November 4. However, he stated he took these drugs October 31. Jones and Wilson testified that Thomas said he knew what he was doing and that he appeared normal and to be thinking clearly. The trial court held that the proof was beyond a reasonable doubt that Thomas voluntarily confessed. We agree. A full four days elapsed between the time Thomas took the drugs and the time he confessed. Like the defendants in Stevens and Morris, Thomas displayed no signs of impairment. His confession, therefore, cannot be said to be the result of intoxication. The trial court’s decision to admit the confession was not manifest error.

¶ 11. We likewise find no merit in Thomas’s contention that he should have been granted a directed verdict. Because the confession was admissible, the jury heard Thomas admit to using a pellet gun in order to rob the clerk at the C-Express Store of money, cigarettes, and a car. There was testimony that a pellet gun can inflict serious bodily injury. Therefore, there was sufficient evidence to support the armed robbery conviction. Miss.Code Ann. § 97-3-79 (Rev.2000). We affirm.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF FORTY-THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AS AN HABITUAL OFFENDER, WITHOUT CHANCE OF EARLY RELEASE, PAROLE OR PROBATION, SUSPENSION OR REDUCTION IN ANYWAY IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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


text:
    Ollie BLOUNT, Appellant v. THE PANTRY, INC., Appellee.
    No. 2005-CA-00531-COA.
    Court of Appeals of Mississippi.
    Aug. 22, 2006.
    Jon H. Powell, Greenwood, attorney for appellant.
    Edward J. Currie, Jr., Jackson, Thomas H. Eller, III, attorneys for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. On the morning of April 14, 2003, Ollie Blount was drinking coffee in the dining area of the Kangaroo convenience store in Gluckstadt, Mississippi. A car drove up to the curb in front of the store and hit the ice machine located on the sidewalk outside the store. As a result, the ice machine was pushed through the glass storefront and struck Blount. Blount was injured.

¶ 2. Blount filed a complaint and asserted a claim against the store’s owner, The Pantry, Inc. (“The Pantry”), for its negligent failure to provide adequate protective barriers along the glass storefront. The Pantry filed a motion to dismiss for failure to state a claim upon which relief can be granted, which the trial court granted.

¶ 3. On appeal, Blount assigns three errors but we condense them into two issues: (1) whether the trial court erred in granting the motion to dismiss, and (2) whether the trial court erred in granting the motion to dismiss prior to discovery being conducted. We find no error and affirm.

STANDARD OF REVIEW

¶4. “This court reviews errors of law, which include summary judgments and motions to dismiss, de novo.” City of Jackson v. Perry, 764 So.2d 373, 376(¶ 9) (Miss.2000).

ANALYSIS

1. Whether the trial court erred in granting the motion to dismiss?

¶ 5. The trial court specifically relied on two eases to dismiss the complaint. Carpenter v. Stop-N-Go Markets of Georgia, Inc., 512 So.2d 708 (Miss.1987), and Heard v. Intervest Corporation, 856 So.2d 359 (Miss.Ct.App.2003). The trial court determined that these cases establish the principle that business owners do not have a duty to protect invitees from the type of harm that caused Blount’s injuries.

¶ 6. In Carpenter, an automobile drove through the front plate glass window of a store. Carpenter, 512 So.2d at 709. The car pushed over a display counter and knocked Carpenter to the floor. Id. Carpenter sued Stop-N-Go, alleging that Stop-N-Go was negligent in failing to install post or wheel stops in front of the store to prevent an accident of this type from occurring. Id. Stop-N-Go moved for summary judgment, and Carpenter’s complaint was dismissed. Id. On appeal, the supreme court held that, as a matter of law, there is no duty owed by a convenience store owner, to persons inside the store, to erect barriers in order to prevent vehicles from driving through the store’s plate glass window. Id.

¶ 7. In Heard, a woman was sitting in a common area of her apartment complex and was killed when a negligently driven vehicle jumped the curb and struck her. Heard, 856 So.2d at 360-61(¶ 2). The decedent’s personal representative brought a wrongful death suit against the property owners. Id. at 361(¶ 3). Intervest moved for summary judgment. Id. at (¶ 4). The trial judge determined that Carpenter was controlling authority and granted Inter-vest’s motion. Id. On appeal, this Court found that Intervest had no reason to foresee an automobile would be negligently propelled over the curb, and we affirmed the trial court’s dismissal. Id. at 362(¶ 10).

¶ 8. Blount argues that neither Carpenter nor Heard govern the outcome of this case. Blount contends that to hold that Carpenter and Heard apply to every factual situation where a person such as Blount is injured will provide owners and operators of convenience stores and apartment complexes (and restaurants and other retail and service oriented places of business) a complete disincentive to provide adequate protective barriers to' protect their invitees or to identify or remedy dangerous conditions. Blount’s argument is that this fact situation is different than Carpenter because it was not a car that was driven through the store’s window, but the car hit an ice machine and propelled the ice machine through the window. To support this argument Blount cites us to Schatz v. 7-Eleven, Inc., 128 So.2d 901 (Fla.Dist.Ct.App.1961), which was cited and relied on in Carpenter. Carpenter, 512 So.2d at 709.

¶ 9. In Carpenter, the Mississippi Supreme Court quoted the following language from Schatz and held:

[I]t cannot be contended with any degree of reason or logic that the owner of a store, ... by failing to erect an impregnable barrier between the entrance of his store and an adjacent area where motor vehicles are driven and parked, should have anticipated that automobiles will be negligently propelled over the curb and across the sidewalk into the entrance of his store.... If as a matter of law such occurrences are ..., to be guarded against, there would be no limitation on the duty owed by the owners of establishments into which people are invited to enter.
We agree with the Florida ruling and hold that there is, as a matter of law, no duty owed by a convenience store owner, to persons inside the store, to erect barriers in order to prevent vehicles from driving through the store’s plate glass window. Because the trial court was correct in entering summary judgment for Stop-N-Go, we affirm.

Id.

¶ 10. Based on the authority of Carpenter and Heard, the trial court was correct to find that there was no set of facts that Blount may prove to establish his claim of negligence and to dismiss Blount’s complaint. Therefore, we affirm.

II. Whether the trial court erred in granting the motion to dismiss pri- or to discovery being conducted?

¶ 11. Blount also argues that the trial court’s dismissal was premature because no discovery had been conducted. The final sentence of Rule 12(b)(6) states, “[i]f, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 ...” M.R.C.P. 12(b)(6). The purpose of the motion to dismiss is to test the existence of the plaintiffs right to relief, even assuming for the sake of analysis, that he would, at trial, be able to prove, by whatever standard applied, all of the well-pled facts in his complaint. Bradford v. Everett, 730 So.2d 594, 595-96(¶ 7) (Miss.Ct.App.1999). (citing Franklin County Coop. v. MFC Servs., 441 So.2d 1376, 1377 (Miss.1983); Boler v. Mosby, 352 So.2d 1320, 1323 (Miss.1977)).

¶ 12. Because The Pantry owed no duty to Blount, discovery would not have created a duty that would have allowed his claim to succeed. The trial judge correctly determined from the face of the complaint that the plaintiff could prove no set of facts that would entitle him to relief. Accordingly, we find no error and affirm.

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

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


text:
    James COCKRELL and Susie P. Cockrell, Appellants v. Paul WATKINS, Jr., Appellee.
    No. 2005-CA-00730-COA.
    Court of Appeals of Mississippi.
    Aug. 22, 2006.

      Carter Dobbs, attorney for appellants.
    Jason Lee Shelton, attorney for appel-lee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Brandon Lashun Watkins’s mother, Susie Ann Cockrell, was killed in an automobile accident on September 12, 2004. As Paul Watkins, Jr. (“Watkins”) never married Susie Ann Cockrell and has never been adjudicated to be the father of Brandon Lashun Watkins, James Cockrell and Susie P. Cockrell, Susie Ann Cockrell’s parents (“the Cockrells”), brought suit in the Chancery Court of Chickasaw County seeking custody of Brandon Lashun Watkins (“Brandon”). The chancellor granted legal and physical custody to Watkins, while granting visitation rights to the Cockrells. Aggrieved, the Cockrells appeal. Finding no error, we affirm.

FACTS

¶ 2. Brandon’s mother, Susie Ann Cock-rell, was killed in an automobile accident on September 12, 2004. Though Watkins never married Susie Ann Cockrell, it is undisputed that Watkins is Brandon’s natural father, though there was never any adjudication of such paternity. However, because Watkins never married Susie Ann Cockrell and had never been adjudicated to be Brandon’s father, the Cockrells brought suit in the Chancery Court of Chickasaw County seeking custody of Brandon.

¶ 3. The Cockrells, when serving Watkins with the summons, additionally served him with a request for admissions. The admissions were not answered within the thirty-day limit proscribed by Rule 36(a) of the Mississippi Rules of Civil Procedure. As a result, at the beginning of Watkins’s testimony at trial, the Cockrells moved that such admissions, namely that Watkins was not “a fit and proper person to have the care, custody and control of [Brandon],” be deemed dispositive of the matter. The chancellor took the motion under advisement, but waited to see how the record developed. On the second day of trial, Watkins introduced his responses to the Cockrells’ request for admissions. The chancellor entered his opinion on February 15, 2005, finding that the Cockrells’ request for admissions would be admitted, but that Watkins was not mentally or morally unfit to have custody of Brandon. The chancellor entered final judgment on February 16, 2005, giving legal and physical custody to Watkins. Aggrieved, the Cock-rells timely appeal, asserting: (1) that the chancellor erred when he deemed that the Cockrells’ request for admissions was admitted, but failed to find such admissions dispositive of Watkins’s unfitness for custody of Brandon; (2) that the chancellor erred by failing to find Watkins mentally or morally unfit for custody; (3) that the chancellor erred by failing to find that Watkins’s conduct amounted to family violence as contemplated by Mississippi Code Annotated section 93-5-24 so as to create a presumption that Watkins should not have custody of Brandon; and (4) that the chancellor erred in finding that it was not in the best interest of Brandon that the Cockrells be awarded custody.

STANDARD OF REVIEW

¶ 4. In child custody cases, this Court will only disturb a chancellor’s decision if such decision is manifestly wrong, clearly erroneous, or applied an improper legal standard. Mabus v. Mabus, 847 So.2d 815, 818(¶ 8) (Miss.2003); C.W.L. v. R.A., 919 So.2d 267, 270(¶ 8) (Miss.Ct.App.2005) (citing Johnson v. Gray, 859 So.2d 1006, 1012(¶ 31) (Miss.2003)). A chancellor’s findings of fact will not be set aside on appeal so long as they are supported by substantial evidence. C.W.L., 919 So.2d at 270(¶ 8) (citations omitted).

ISSUES AND ANALYSIS

I. Whether the chancellor erred when he deemed that the Cock-rells’ request for admissions was admitted, but failed to find such admissions dispositive of Watkins’s unfitness for custody of Brandon.

¶ 5. Rule 36(a) of the Mississippi Rules of Civil Procedure states, inter alia, that if a party fails to answer a request for admissions on a matter within thirty days, that matter is deemed to be admitted. Because Watkins failed to answer the Cockrells’ request for admissions within thirty days, the chancellor deemed such matters to be admitted. The matter admitted was that Watkins was unfit to have custody of Brandon.

¶ 6. However, the chancellor, citing Martin v. Simmons, 571 So.2d 254, 257 (Miss.1990), correctly stated that such admissions were not necessarily dispositive of the case, and that he was authorized, and even duty-bound, to review all evidence, including Watkins’s answers to interrogatories and testimony, before coming to a decision concerning Watkins’s fitness. Because the chancellor was not manifestly wrong or clearly erroneous in ruling that the admissions were not dispositive of the matter, and because he did not apply an improper legal standard, this issue is without merit.

II. Whether the chancellor erred by failing to find Watkins mentally or morally unfit for custody.

¶ 7. The Cockrells contend that the chancellor erred in finding Watkins morally and mentally fit for custody of Brandon. There is a presumption in Mississippi that the best interests of a child will best be preserved by remaining with his surviving parent unless the third party seeking custody makes a clear showing of one of the following: (1) the surviving parent abandoned the child; (2) the conduct of the surviving parent is so immoral 'as to be detrimental to the child; or (3) the surviving parent is unfit mentally or otherwise to have custody. Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986).

¶ 8. The chancellor in the case sub judiee addressed each one of these issues in turn. As to abandonment, he found that, since Watkins had been with Brandon since his mother’s death, he did not abandon Brandon. As to the immorality of Watkins’s conduct, the chancellor addressed each one of Watkins’s shortcomings as pointed out by the Cockrells (i.e., that Watkins: (a) had at least fifteen speeding convictions; (b) had five paternity adjudications against him and was delinquent in paying child support on all of the cases; (c) falsely testified that he did not have a firearm on his person on the night of Susie Ann Cockrell’s death; and (d) falsely testified concerning breaking a car windshield). The chancellor stated, “As the Court understands the Pridgen test, the immoral conduct must be so immoral as to be detrimental to the child. Brandon has not been affected by his father’s conduct. Moreover, the Cockrells admitted that [Watkins] was a good father.” There was no evidence presented in the chancery court as to Watkins’s mental infirmity. In fact, there was testimony by Watkins’s pastor, his pastor’s wife, and several other witnesses that Watkins had changed his life for the better and regularly attended church. There was also testimony that Watkins had the support of his own parents in caring for Brandon.

¶ 9. The chancellor applied the proper legal standard, and his findings were supported by substantial evidence. This issue is consequently without merit.

III. Whether the chancellor erred by failing to find that Watkins’s conduct amounted to family violence as contemplated by Mississippi Code Annotated section 93-5-24(9) so as to create a presumption that Watkins should not have custody of Brandon.

¶ 10. Mississippi Code Annotated section 93 — 5—24(9)(a)(i) (Rev.2004) (“the statute”) creates a rebuttable presumption that it is not in the best interest of a child to be placed in the custody of a parent with a history of perpetrating violence against a family member. Such presumption may be rebutted by a preponderance of the evidence. Miss.Code Ann. § 93-5-24(9)(a)(ii) (Rev.2004).

¶ 11. The Cockrells alleged three occurrences or series of occurrences which they argued constituted family violence within the meaning of the statute. The first incident was characterized as an “altercation” between Watkins and Susie Ann Cockrell in rural Chickasaw County. Testimony revealed that both Watkins and Susie Ann Cockrell “had sharp objects,” and that Susie Ann so seriously injured Watkins as to put him in intensive care for days, though Watkins did not physically abuse her in the altercation. The chancellor thus found that the altercation did not constitute family violence within the meaning of the statute.

¶ 12. In the second incident(s), the chancellor noted testimony that Susie Ann would occasionally lock Watkins out of her house, and that Watkins “would use anything he could to get the door open. Sometimes he would stay around for a while then he would leave.” The chancellor likewise found that this did not constitute family violence within the meaning of the statute. The third allegation of violence was merely that there was “constant turmoil in the household.”

¶ 13. The chancellor found that none of these amounted to family violence within the meaning of the statute. Further, the chancellor correctly stated that, even if such incidents had constituted family violence, which he submitted that they did not, the statute gave him the discretion to grant Watkins custody of Brandon “if that parent is less likely to continue to perpetrate family violence.” The chancellor stated that, as all evidence presented involved alleged “violence” between Watkins and Susie Ann, such “violence” obviously would not be possible to continue.

¶ 14. We cannot say that the chancellor was manifestly wrong, clearly erroneous, or applied an improper legal standard with regard to this issue. Accordingly, this issue is without merit.

IV. Whether the chancellor erred in finding that it was not in the best interest of Brandon that the Cockrells be awarded custody.

¶ 15. The issue of Brandon’s best interest has already been discussed above. As stated above, there is a presumption that the child’s best interest will be best served by remaining with his surviving parent, and the Cockrells did not overcome that presumption by clearly proving that clear showing of one of the following: (1) the surviving parent abandoned the child; (2)the conduct of the surviving parent is so immoral as to be detrimental to the child; or (3) the surviving parent is unfit mentally or otherwise to have custody. Pridgen, 493 So.2d at 954. We cannot say that the chancellor erred in finding that the Cockrells had not overcome the presumption. We consequently affirm the decision of the chancellor below.

¶ 16. THE JUDGMENT OF THE CHANCERY COURT OF CHICKASAW COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


text:
    In the Interest of C.B.Y., a Minor.
    No. 2005-CA-00256-COA.
    Court of Appeals of Mississippi.
    Aug. 22, 2006.

      Sheila Havard Smallwood, attorney for appellant.
    Sara Barrett Harvey, attorney for appel-lees.

      Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. A.Y. appeals the decision of the Forrest County Youth Court terminating her parental rights to her minor child, C.B.Y. The Forrest County Department of Human Services (DHS) filed a petition to terminate the parental rights of A.Y., R.H., and an unknown putative father on June 2, 2004. A trial was held, and on January 10, 2005, the youth court entered a judgment terminating A.Y.’s parental rights. Aggrieved by the youth court’s decision, A.Y. appeals. She presents the following issues for our review:

I. Whether the youth court judge erred in finding that proof met the clear and convincing burden necessary to terminate the parental rights of A.Y.
II. Whether the DHS failed to implement a plan for reunification under Mississippi Code Annotated section 93-15-103, as amended, for which parental rights can be terminated.
III. Whether a minor under the legal custody of the DHS can be sued by the same agency to terminate parental rights to her child.
IV. Whether the youth court should have emancipated A.Y. upon her eighteenth birthday or at the time of her marriage to her husband.
V. Whether the rights of A.Y. were violated when her attorney failed to get notice of the review hearing leading up to the termination of parental rights.
VI. Whether the DHS violated the constitutional rights of A.Y. by requiring that she and her newborn leave her husband and submit to foster care before they would implement a plan for reunification with C.B.Y.

FACTS

¶2. A.Y., who was born on June 26, 1984, was fifteen years of age when she gave birth to a boy, C.B.Y., on November 3, 1999. In 2001, W.Y., C.B.Y.’s maternal grandmother, reported to the DHS that A.Y. had, taken C.B.Y. and run away. W.Y. further reported that C.B.Y. had asthma and A.Y. was not taking proper care of him. A.Y. responded that she ran away because her mother was on drugs. As a result of the allegations, A.Y. and C.B.Y. came into the temporary custody of the DHS on July 31, 2001. On September 18, 2001, the youth court found A.Y. and C.B.Y. to be neglected/dependent children, pursuant to Mississippi Code Annotated section 43-21-105(£), (p) (Supp.2005). The youth court ordered legal custody of C.B.Y. to be maintained by the DHS, with physical placement in the foster home of Stephen and Joanne High. The youth court further ordered a permanency plan of reunification and a concurrent plan of relative placement for C.B.Y. Regarding A.Y., the youth court ordered that she enter into a service agreement with the DHS.

¶ 3. On June 25, 2002, the youth court conducted a six-month review. The youth court determined that legal custody of C.B.Y. should remain with the DHS and that C.B.Y.’s physical placement should be in the home of his great-aunt, Virginia Byrd. The court also maintained that the permanency plan for C.B.Y. was one of reunification.

¶ 4. On July 15, 2002, A.Y. took C.B.Y. and ran away from her foster home. She married Jason Brett Anderson on July 28, 2002. A.Y. testified that Ramona Lockett, an employee with the DHS, advised her to run away once she turned eighteen years of age, to get married, and to stay hidden. On July 22, 2002, the youth court ordered that any law enforcement officer, where-so-ever located, should take custody of C.B.Y. and return him to the custody of the DHS. On September 7, 2002, the youth court issued an order finding that A.Y. was on runaway status and ordering that the review of C.B.Y.’s welfare be continued until he could be found and returned to the custody of the DHS.

¶ 5. On November 21, 2002, A.Y. gave birth to a second son, A.B.A. A.Y. lived with Anderson, C.B.Y., and A.B.A. until June 3, 2003, when C.B.Y. developed a staph infection and was hospitalized at Forrest General Hospital in Hattiesburg, Mississippi. According to the testimony of Deborah Stewart, a social worker with the DHS, W.Y. contacted the DHS, revealed CJB.Y.’s location, and stated her opinion that A.Y. was not taking care of C.B.Y. On July 1, 2003, the DHS regained physical custody of C.B.Y. On August 27, 2003, C.B.Y. was placed in the foster home of Bobby and Lucretia Zina Scarbrough.

¶ 6. A.Y. appeared at a review hearing that was held on August 19, 2003. The youth court ordered that the permanency plan for C.B.Y. be changed from reunification to termination of parental rights and adoption. On November 21, 2003, Robert Marshall agreed to represent A.Y. pro bono. He testified that he contacted Jean Fertitta, the co-head of the DHS, on December 15, 2003 and that they discussed A.Y.’s case.

¶ 7. On December 20, 2003, A.Y. and Anderson met with Fertitta and signed authorizations for a background check. According to Fertitta’s testimony, the background check revealed that A.Y. and Anderson both had a criminal background, and that Anderson had “an extensive arrest record.” On February 10, 2004, the youth court conducted another review hearing. Because Marshall did not file his entry of appearance with the youth court, he did not receive notice of the hearing. Stewart, the social worker, testified that, in an effort to locate A.Y. prior to the review hearing, the DHS traveled to the address provided by the Petal Police Department, but found that no one was living at that address. Marshall filed a motion for reconsideration, which was denied by the youth court.

¶ 8. On May 13, 2004, the youth court appointed James D. Johnson to be the guardian ad litem for C.B.Y. On June 2, 2004, the DHS filed a petition to terminate the parental rights of A.Y., R.H. (the alleged natural father of C.B.Y), and an unknown putative father. A trial was held on October 26, 2004.

¶ 9. During the trial, A.Y. testified that while she and C.B.Y. were supposed to be living with the Highs, she was actually living in an apartment with Anderson. A.Y. admitted that she knowingly and fraudulently gave the DHS misinformation about her living arrangements when a DHS agent would visit the High’s residence. She further testified that the last time she saw C.B.Y. was two days before the DHS took him from the hospital. A.Y. also admitted that she avoided contact with the DHS because she did not want the DHS to dictate where she was going to stay, and that as a result, she did not have any contact with C.B.Y.

¶ 10. Mrs. Scarbrough testified that the DHS contacted her on September 3, 2004 to schedule a visit between A.Y. and C.B.Y. She further testified that when she informed C.B.Y. about the proposed visit, he “started shaking his head really hard and crying, No, no, no, Mama, no.” According to Mrs. Scarbrough, C.B.Y. jumped into her lap and began crying so hard that he could barely breathe.

¶ 11. Stewart testified that June of 2003 was the last time A.Y. saw C.B.Y., but that A.Y. contacted her by phone on December 31, 2003 and January 5, 2004. Stewart further testified that the first time A.Y. called she wanted to know what she could do to get a visit with C.B.Y. Stewart explained to A.Y. that she was still in custody of the DHS, and that she (Stewart) was coming to pick her up at her home. Stewart went to A.Y.’s home, but A.Y. did not open the door. Stewart testified that the second time A.Y. called, she asked about visiting C.B.Y., but hung up the phone when Stewart told her that she needed to come to the office because she was still in custody.

¶ 12. On January 10, 2005, the youth court entered a judgment terminating A.Y.’s parental rights. At the time of the judgment, C.B.Y. was four years and eleven months old. The youth court found that the statutory grounds for termination of parental rights had been satisfied, pursuant to Mississippi Code Annotated section 93-15-103(3) (Rev.2004). Specifically, the youth court determined the following: (1) the DHS was unable to return C.B.Y. to A.Y. because she' secreted herself from the DHS and from youth court jurisdiction; (2) A.Y. failed to assume proper parental responsibility and exhibited ongoing behavior by running away and making choices adverse to C.B.Y.’s best interest; and (3) A.Y.’s behavior had caused a substantial erosion of the parent/child relationship, evidenced by an extreme aversion by the child toward his mother.

STANDARD OF REVIEW

¶ 13. In order to establish a case for termination of parental rights, the burden of proof is clear and convincing evidence. See Miss.Code Ann. § 93-15-109 (Rev.2004). On appeal, however, the standard of review in termination of parental rights cases is limited. D.J.L. v. Bolivar County Dep’t. of Human Services ex rel. McDaniel, 824 So.2d 617, 620(¶ 10) (Miss.2002) (citing S.N.C. v. J.R.D., 755 So.2d 1077, 1080(¶ 7) (Miss.2000)). This Court gives deference to the family court’s findings of fact; we will uphold the family court’s decision unless we determine that it is not supported by substantial, credible evidence. G.Q.A. v. Harrison County Dep’t. of Human Resources, 771 So.2d 331, 335(¶ 14) (Miss.2000) (citing S.C.R. v. F.W.K., 748 So.2d 693, 700(¶ 40) (Miss. 1999)). We must determine “not how we would have decided the case ab initio but whether there would be credible proof from which a rational trier of fact may have found,” as the court did in this case. D.J.L., 824 So.2d at 620(¶ 10) (citing Ethredge v. Yawn, 605 So.2d 761, 764 (Miss. 1992)).

ISSUES AND ANALYSIS

I. Whether the youth court judge erred in finding that proof met the clear and convincing burden necessary to terminate the parental rights of A.Y.

¶ 14. A.Y. argues that the facts in this case cannot meet the first hurdle in the statute governing the termination of parental rights. The first hurdle to which A.Y. refers is found in Mississippi Code Annotated section 93-15-103(1) (Rev.2004), which provides in part:

When a child has been removed from the home of its natural parents and cannot be returned ... within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them, the ground listed in the subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.

¶ 15. A.Y. concedes that C.B.Y. was removed from the home, but notes that she was also removed. A.Y. asserts that C.B.Y. was taken from the hospital because she was considered a runaway, not because of any unwillingness or inability on her part to care for C.B.Y. She further insists that the facts do not support the conclusion that C.B.Y. could not be returned to her within a reasonable amount of time. A.Y. notes that it was only seven weeks after C.B.Y. was removed from her physical custody that a review hearing was held which resulted in a permanency plan for termination of parental rights and adoption.

¶ 16. In the final judgment terminating parental rights, the youth court determined that C.B.Y. was removed from A.Y.’s physical custody because A.Y., who was also in legal custody of the DHS, ran away. The court reasoned that, because of A.Y.’s runaway status, C.B.Y. could not be returned to her within a reasonable amount of time. The court further determined that it would not be in C.B.Y.’s best interest to return him to A.Y. because she was unable to care for him, and relative placement was inappropriate. Regarding the child’s best interest, the youth court determined that C.B.Y. had been under the jurisdiction of the youth court since July of 2001; thus, he had been in foster care for nearly seventy-percent of his life. The youth court further determined that C.B.Y. had been in a safe, secure, and stable home environment and had been a candidate for prospective adoption since August 27, 2003. Consequently, the court concluded that termination of parental rights and adoption were needed to provide a safe, secure, and stable permanency placement for C.B.Y.

¶ 17. We find substantial credible evidence to support the youth court’s findings regarding this “first hurdle” of the statutory requirements. A.Y. took C.B.Y. and ran away from her foster home on July 15, 2002. On September 7, 2002, the youth court determined that A.Y. was on runaway status and ordered that the review of C.B.Y.’s welfare be continued until he could be found and returned to the custody of the DHS. A.Y. testified that while she and C.B.Y. were supposed to be living with the Highs, she was actually living in an apartment with Anderson. A.Y. testified that the last time she saw C.B.Y. was two days before the DHS took him from the hospital. She also admitted that she avoided contact with the DHS because she did not want the DHS to dictate where she was going to stay, and that as a result, she did not have any contact with C.B.Y. Consequently, we find that A.Y.’s testimony alone is sufficient evidence to support the youth court’s finding that her behavior, i.e., choosing to remain on runaway status to avoid the DHS, is the reason that C.B.Y. could not be returned to her within a reasonable amount of time.

¶ 18. Regarding the specific statutory grounds for termination of parental rights, A.Y. also argues that the youth court’s findings are unfounded. Pursuant to Mississippi Code Annotated section 93-15-103(3), the youth court found the following by clear and convincing evidence: (1) the DHS was unable to return C.B.Y. to A.Y. because she chose not to satisfy the plan for reunification by secreting herself from the DHS and from youth court jurisdiction; (2) A.Y. failed to assume proper parental responsibility and exhibited ongoing behavior by running away and making choices adverse to C.B.Y.’s best interest; and (3) A.Y.’s behavior had caused a substantial erosion of the parent/child relationship, evidenced by an extreme aversion by the child toward his mother.

¶ 19. Mississippi Code Annotated section 93 — 15—103(3)(d)—(f) (Rev.2004) provides in part the following:

(d) When the child has been in the care and custody of a licensed child caring agency or [DHS] for at least one (1) year, that agency or the department has made diligent efforts to develop and implement a plan for return of the child to its parents, and:
(i) The parent has failed to exercise reasonable available visitation with the child; or
(ii) The parent, having agreed to a plan to effect placement of the child with the parent, fails to implement the plan so that the child caring agency is unable to return the child to said parent; or
(e) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent’s care and custody:
(ii) Because the parent fails to eliminate behavior, identified by the child caring agency or the court, which prevents placement of said child with the parent in spite of diligent efforts of the child caring agency to assist the parent; or
(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate.

¶20. We find that the findings of the youth court met the statutory grounds for termination of parental rights and that the findings are supported by substantial credible evidence. First, we note that the record shows that C.B.Y. was in the custody of the DHS since July 31, 2001, which is well over the statutory requirement of one year. We further note that, pursuant to Mississippi Code Annotated section 93-15-103(1), involuntary termination of parental rights may be based on one or more of the enumerated factors.

¶ 21. The youth court specifically found that A.Y.’s ongoing behavior was a ground for termination of her parental rights. The ongoing behavior cited by the youth court was • A.Y.’s decision to remain on runaway status, thus preventing her from maintaining a bond with C.B.Y., as it was impossible to return C.B.Y. to her custody and care when she chose to avoid the DHS. The record supports the trial court’s finding of ongoing behavior. At the time of the trial on October 26, 2004, A.Y. had not seen C.B.Y. since she last visited him in the hospital in June of 2003; she testified that she had no contact with C.B.Y. because she chose to avoid the DHS.

¶ 22. The youth court found an additional ground for terminating A.Y.’s parental rights, namely, the substantial erosion of the parent/child relationship. Mrs. Scarbrough testified that C.B.Y. jumped into her lap and cried until he hyperventilated when she told him that A.Y. wanted to visit with him. Furthermore, Rebecca Hartfield, the DHS adoption specialist assigned to C.B.Y.’s case, testified that the Scarbroughs and C.B.Y. had a parentyehild relationship. Consequently, we find substantial credible evidence to support the youth court’s findings. This issue is without merit.

II. Whether the DHS failed to implement a plan for reunification under Mississippi Code Annotated section 93-15-103, as amended, for. which parental rights can be terminated.

¶ 23. A.Y. argues that the DHS failed to make a diligent effort to develop and implement a plan for C.B.Y.’s return to her. As previously mentioned, we find substantial credible evidence to support the youth court’s finding that A.Y.’s decision to remain on runaway status prevented the DHS from returning C.B.Y. to A.Y. Furthermore, A.Y. testified that she avoided contact with the DHS, and she admitted that she never made herself available to enter into a service agreement with the DHS. Therefore, this issue is without merit.

III. Whether a minor under the legal custody of the DHS can be sued by the same agency to terminate parental rights to her child.

¶ 24. A.Y. asserts that the DHS created a conflict of interest when it filed suit against her because she was still in the legal custody of the DHS. Citing Mississippi Code Annotated section 43-15-13(3), A.Y. suggests that the DHS breached its duty to “return the child to its natural parent.” We disagree.

¶25. Mississippi Code Annotated section 43-15-13(3) (Rev.2004) states in part that “[t]he goal of the [DHS] shall be to return the child to its natural parent(s) or refer the child to the appropriate court for termination of parental rights.” (emphasis added). Moreover, Mississippi Code Annotated section 93-15-105(1) (Supp.2005) provides in part that “[a]ny person, agency or institution may file for termination of parental rights in the chancery court or the family or county court sitting as the youth court of the county in which a defendant or the child resides.” Thus, the DHS clearly had the authority to file for termination of AY.’s parental rights. Accordingly, this issue is without merit.

IV. Whether the youth court should have emancipated A.Y. upon her eighteenth birthday or at the time of her marriage to her husband.

¶ 26. A.Y. reached the age of eighteen on June 26, 2002 and married on July 28, 2002. She asserts that she should have been considered emancipated at the time of her marriage, pursuant to Mississippi Code Annotated section 93-5-23. A.Y. further contends that she should not have been in the custody of the DHS after her eighteenth birthday, pursuant to Mississippi Code Annotated section 43-27-101 (Rev. 2004), which defines a “[e]hild or youth in the custody of the [DHS]” as a person “[w]ho has not yet reached his eighteenth birthday.”

¶ 27. We find AY.’s argument to be unpersuasive for several reasons. First, Mississippi Code Annotated section 93-5-23 (Rev.2004) concerns the length of time a parent is obligated to pay child support, rather than the emancipation of a minor under the jurisdiction of youth court. Second, as A.Y. concedes, Mississippi Code Annotated section 43-15-13 (Rev.2004), which governs the placement of children in foster care, defines “children” as “persons found within the state who are under the age of twenty-one ... and who were placed in the custody of the [DHS] by the youth court of the appropriate county.” Furthermore, Mississippi Code Annotated section 43-21-151(l)-(2) (Rev.2004) provides for exclusive original jurisdiction to youth court “in all proceedings concerning a delinquent child, a child in need of supervision, an abused child or a dependent child ... until the child’s twentieth birthday, unless sooner terminated by order of the youth court.” In the case at bar, the youth court gained exclusive original jurisdiction of AY’s dealings with DHS on July 31, 2001, when the DHS obtained legal custody of the then seventeen-year-old A.Y. Pursuant to Mississippi Code Annotated section 43-21-151(l)-(2), we find that the youth court retained its jurisdiction over A.Y. until her twentieth birthday on June 26, 2004. Therefore, this issue is without merit.

Y. Whether the rights of A.Y. were violated when her attorney failed to get notice of the review hearing leading up to the termination of parental rights.

¶ 28. Under this assignment of error, A.Y. asserts that the court’s failure to give her or her attorney notice of the hearing held on February 10, 2004 constituted a violation of her substantive and procedural due process rights. In support of her argument, A.Y. cites Harris v. Mississippi Valley State University, 873 So.2d 970, 985(¶ 40) (Miss.2004). The court in Harris explained that, once establishing that a party has an interest entitled to procedural due process protection, procedural due process requires that the party receive notice and an opportunity to be heard. Id. The Harris court further held that if the party receives an oral or written explanation of the charges against her, then the notice requirement has been satisfied. Id.

¶ 29. In the case sub judice, A.Y. had notice that the DHS sought to terminate her parental rights; the February 10, 2004 hearing was not a hearing for the termination of parental rights. A.Y. received notice and was present for the termination of parental rights hearing, which was held on October 26, 2004. Regarding notice for the February 10 hearing, the record shows that the DHS traveled to the address that A.Y. provided to the Petal Police Department, but that no one was living at that address. Furthermore, when discussing during trial whether A.Y.’s attorney received notice of the February 10 hearing, the youth court judge stated: “I just want to make that clear so the record will show that nobody — the Court never had any type of notice that Mr. Marshall was in the case until after the hearing.” Based on these facts, we conclude that the DHS was duly diligent in attempting to find A.Y. to give her notice of the February 10 hearing. We further find that A.Y.’s attorney received no notice of that hearing because he was not her attorney of record. Therefore, this issue is without merit.

VI. Whether the DHS violated the constitutional rights of A.Y. by requiring that she and her newborn leave her husband and submit to foster care before they would implement a plan for reunification with C.B.Y.

¶ 30. A.Y. asserts that by attempting to force her into the foster care system with her newborn, and by threatening to withhold contact with C.B.Y., the DHS subjected her to unconstitutional involuntary servitude in violation of the Mississippi Constitution and the Thirteenth Amendment to the United States Constitution. We disagree. In U.S. v. Kozminski, 487 U.S. 931, 942, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988), the United States Supreme Court held that “in every case in which this Court has found a condition of involuntary servitude, the victim had no available choice but to work or be subject to legal sanction.” Clearly, this case does not involve forced labor. A.Y. chose to avoid contact with the DHS. A.Y. was aware that her behavior prevented her from being with her child, yet she refused to make herself available to begin the process of reunification. Therefore, we find that this issue is without merit.

¶ 31. THE JUDGMENT OF THE YOUTH COURT OF FORREST COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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


author: ROBERTS, J.,

text:
    Willie ROSS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01799-COA.
    Court of Appeals of Mississippi.
    Aug. 22, 2006.

      Willie Ross, Appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

FACTS

¶ 1. The Appellant, Willie Ross, was indicted on February 4, 2002, on the charges of burglary of a dwelling, burglary and larceny of a dwelling, and receiving stolen property. In May of the same year, Ross filed his petition to enter a guilty plea with the Circuit Court of Lowndes County agreeing to plead guilty to the first count if the State would drop the two other pending charges and recommend a sentence of twenty years. The day of Ross’s plea hearing, the State filed a motion to amend the indictment to reflect Ross’s habitual offender status as per Mississippi Code Annotated § 99-19-81 (Rev.2000). The State having introduced proof of Ross’s previous convictions, the lower court granted said motion. Alterations in Ross’s plea agreement were made, and authorized by Ross, to reflect his changed status and the required sentence of twenty-five years. As a result of this petition, Ross was sentenced to twenty five years as per Mississippi Code Annotated § 99-19-81 (Rev.2000) as a habitual offender. In Ross’s petition to enter a guilty plea, he unequivocally stated (1) his lawyer fully advised him of the charges against him, (2) his lawyer made no promises or threats in conjunction with his guilty plea, (3) he fully understood the Constitutional rights he waived as a result of his plea and that he did so knowingly, (4) that he understood he was to be sentenced as a habitual offender, (5) that the maximum sentence possible was twenty-five years, (7) that the district attorney would recommend a sentence of twenty-five years as well as drop two additional charges, and (6) that he committed the offense of burglary. Additionally, the transcript of Ross’s guilty plea hearing plainly shows that Ross knew of the consequences associated with a plea of guilty and, nonetheless, continued down that path.

¶ 2. Subsequent to his sentencing, Ross filed a request for records and transcripts on June 24, 2002, and February 12, 2004, both of which were denied, and on June 1, 2005, filed his pro se motion for post-conviction relief in the Circuit Court of Lowndes County. In its order dismissing Ross’s motion, the lower court found that Ross was aware that his habitual offender status would be considered during sentencing and agreed to the twenty-five year sentence. Ross now appeals this decision pro se on the grounds that his plea was not freely and voluntarily given because the district attorney agreed to recommend a twenty year sentence, he was denied transcripts in his preparation of his post-conviction relief petition and that his attorney was ineffective. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 3. A trial court’s decision to deny a petition for post conviction relief should only be overturned if the trial court’s decision was clearly erroneous. Kirksey v. State, 728 So.2d 565 (¶ 8) (Miss. 1999). However, the appropriate standard of review for questions of law is de novo. Rice v. State, 910 So.2d 1163 (¶ 4) (Miss.Ct. App.2005).

A Preliminary Matter

¶4. As with any appeal, it is solely the appellant’s duty to ensure that the record is sufficiently populated to support the error claimed. Lyons v. State, 881 So.2d 373 (¶ 8) (Miss.Ct.App.2004). If the record is found lacking in this regard, the lower court’s order must stand. Lyons, 881 So.2d at (¶ 8). In the case sub judice, the record originally contained Ross’s post-conviction collateral relief petition, the order dismissing said petition, and Ross’s notice of appeal. Nothing in the record either substantiates Ross’s issues on appeal or casts doubt on the lower court’s decision to dismiss. This is where most appeals would end with the decision of the lower court being affirmed, but as a result of Ross’s pro se status an amount of leeway and understanding is granted because of his presumed lack of familiarity with the appeals process. Ford v. State, 708 So.2d 73(¶ 13) (Miss.1998). In situations such as this, where the appellant has made attempts to complete the record but has not taken the correct procedural steps, the motion should be reviewed in accordance with § 99-39-ll(l)(Rev.2000) which states, in pertinent part, “[t]he original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned.” Ford, 708 So.2d at (¶ 13) (quoting Miss.Code Ann. § 99-39-11(1) (Rev. 2000)). Subsequent to this review, the trial judge should determine if the motion can withstand summary dismissal under Mississippi Code Annotated § 99-39-11(2) (Rev.2000), and if so, the motion should be returned to the movant pursuant to Mississippi Code Annotated § 99-39-9(4) (Rev. 2000). Id.

ISSUES AND ANALYSIS

I. Whether the trial court erred in holding that Ross’s guilty plea was freely entered with the knowledge that he would be sentenced as a habitual offender.

¶ 5. Ross argues that he was induced into pleading guilty with promises of a twenty year sentence, and never would have so pled if he had known he was to be charged as a habitual offender and sentenced to twenty-five years. While the initial recommendation was for twenty years, Ross’s habitual offender status necessitated a twenty-five year sentence, and he was given every opportunity to withdraw his plea.

¶ 6. Determination of the voluntariness of a guilty plea depends on whether or not “the defendant knows what the elements are of the charge against him including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of his plea.” Wilson v. State, 577 So.2d 394, 397 (Miss.1991). Specifically, the defendant must be told “that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self-incrimination.” Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992) (quoting Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)).

¶ 7. In the case at hand, we find that the lower court’s summary dismissal of Ross’s post-conviction motion was appropriate. The trial court’s order specifically found that Ross was fully aware of his habitual offender status as it affected his sentencing, as noted in Ross’s notarized plea agreement and evident from his plea hearing transcript. Specifically, Ross’s plea agreement states that he was fully aware of the consequences of his guilty plea, his habitual offender status, and that the prosecutor would recommend a twenty-five year sentence. Furthermore, the transcript of Ross’s plea hearing evinces his understanding of his plea as a habitual offender and makes clear that said plea was given freely and voluntarily. Though the original plea agreement called for a recommendation of a twenty year sentence, Ross’s habitual offender status precluded such a sentence as the maximum sentence of twenty-five years was the only option available to the lower court. Ross’s understanding of this alteration, and subsequent agreement to it, is shown by the following,

Q. BY THE COURT: If he’s an habitual offender he gets the maximum sentence and that is not to be reduced by any parole or early release or anything like that. He has to flat-time the sentence. I want everybody to understand that now. If he wants to change his plea now’s the time.
A. ROSS’S ATTORNEY: Yes, sir.
Q. BY THE COURT: Talk to him and see what he wants to do and' — •
A. ROSS’S ATTORNEY: Yes, sir. I need to talk to him.
Q. BY THE COURT: — and take this. I can’t sentence him to less that [sic] twenty-five.
(Ross and his attorney leave the courtroom and a recess is had)
Q. BY THE COURT: Do you understand the only sentence that I can give you is twenty-five years in the Mississippi Department of Corrections as an [sic] habitual offender and a ten thousand dollar fine?
A. ROSS: Sir, yes, sir.
Q. BY THE COURT: So you’re pleading guilty to Count 1 of this indictment of your own free will and accord then. Is that right?
A. ROSS: Sir, yes, sir.

Additionally, the presiding judge at Ross’s plea hearing, Judge Lee Howard, asked him if he was aware that by pleading guilty he was giving up several rights, to include his right to a jury trial, his right to confront witnesses, his right to protection against self-incrimination, and his right to an appeal. To all he answered, “Sir, yes, sir.” Furthermore, in exchange for his guilty plea, the State, in addition to retiring the two other pending counts, namely burglary of a dwelling and possession of stolen property, also requested to retire pending charges of burglary of a dwelling and taking of a motor vehicle in Oktibeb-eha County and a charge of disposing of stolen property in Clay County. Ross’s acquiescence to this side of the deal has not been contested.

¶ 8. We find that Ross’s sworn signature on his plea agreement and testimony during his plea hearing show that his plea of guilty was voluntary and intelligently given, and, as such, we cannot say that the lower court’s holding was clearly erroneous.

II. Whether denial of Ross’s attempts for production of records was proper.

¶ 9. In accordance with the Mississippi Uniform Post-Conviction Collateral Relief Act, Mississippi Code Annotated §§ 99-39-1 et. seq (Rev.2000), a prisoner whose proper motion has survived summary dismissal pursuant to Mississippi Code Annotated § 99-39-11(2) (Rev.2000), may be entitled to transcripts or “other relevant documents under the discovery provisions of § 99-39-15,” at the discretion of the trial judge and when good cause is shown. Kemp v. State, 904 So.2d 1137(1111) (Miss.Ct.App.2004) (quoting Fleming v. State, 553 So.2d 505, 506 (Miss. 1989)). Ross’s attempts to gather copies of his records were denied based on Fleming by the lower court and again by the supreme court. As the lower court made no error in summarily dismissing Ross’s Petition, as noted above, Ross has not met the initial burden of surviving dismissal as set out in Mississippi Code Annotated § 99-39-11(2) (Rev.2000), let alone providing a basis worthy of the trial court’s discretion, that would entitle him to free copies of his records. Consequently, this issue is without merit.

III. Whether Ross’s attorney provided ineffective assistance of counsel in allowing him to enter the plea bargain.

¶ 10. Prisoners alleging ineffective assistance of counsel in a post-conviction relief petition must show the elements of the claim with specificity and detail. Sandifer v. State, 799 So.2d 914 (¶ 12) (Miss.Ct.App.2001). Specifically, the prisoner must allege facts that show his counsel’s performance was deficient, and that, but for those specific acts alleged, the result would have been different. Ford, 708 So.2d at (¶ 8). Furthermore, in the post-conviction relief arena, a prisoner’s ineffective assistance of counsel claim is without merit when the only proof offered of said claim is the prisoner’s own affidavit. Buckhalter v. State, 912 So.2d 159(¶ 13) (Miss.Ct.App.2005).

¶ 11. In his brief, Ross argues that his attorney’s performance was deficient in that he allowed Ross to enter a guilty plea to twenty years all the while knowing that the prosecutor planned to charge him as a habitual offender, thus requiring nothing less than the maximum sentence of twenty-five years. Secondly, Ross argues that his attorney was deficient because he did not confer with Ross concerning possible defenses to the prosecutor’s clandestine plot. Lastly, Ross argues that his counsel was ineffective because he changed the plea from twenty years to twenty-five years in the plea agreement. Ross states that had it not been for these deficiencies he would have never pled guilty.

¶ 12. In direct contradiction to these claims of deficiency, Ross stated in his petition to enter a guilty plea that he was fully informed as to the charges against him, that he would be charged as a habitual offender, that he entered the guilty plea freely and voluntarily, that he believed his lawyer had done all anyone could do to counsel and assist him, and that he was satisfied with the help his attorney had given him. Additionally, while the petition to enter a guilty plea does contain a correction of the sentencing recommendation from twenty years to twenty-five years, the correction was approved by Ross as evinced by his initials. This approval was again shown by Ross’s testimony in response to the lower court’s questioning, quoted supra. Notwithstanding the admissions and concessions contained within Ross’s petition and throughout his hearing, we must also note that he failed to offer any affidavits or additional proof in support his claim of ineffective assistance of counsel other than his own beliefs. Therefore, we find that the trial court’s dismissal of Ross’s motion was proper and, as such, we affirm.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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

      . By order dated May 18, 2006, this Court remanded this case to the Circuit Court of Lowndes County for the limited purpose of supplementing the record with all files of Ross's criminal case from which he seeks relief and the transcript of his guilty plea hearing.