text:
    James BROWNLEE, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01399-COA.
    Court of Appeals of Mississippi.
    Jan. 8, 2008.

      Richard B. Lewis, Clarksdale, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. On July 25, 2006, a jury sitting before the C.oahoma County Circuit Court found James Brownlee guilty of two counts of armed robbery. The jury did not recommend a life sentence. Accordingly, the circuit court sentenced Brownlee to two concurrent sentences of fifteen years with eight years suspended and seven years to serve. Following unsuccessful posttrial motions for JNOV and a new trial, Brown-lee now appeals. Finding no error, we affirm.

FACTS

¶ 2. Brownlee’s conviction is the result of events that transpired at the Isle of Capri Casino in Coahoma County, Mississippi on March 2, 2006. Twenty-two-year-old Jesse Green had $4,400 in income tax return proceeds and he was interested in buying a car. His brother, Eric, told him about a black Camaro Z28 that was for sale and gave him a contact number. Green spoke to a man named Ricky in Arkansas. They arranged to meet in the parking lot of the Isle of Capri Casino.

¶3. Green, his brother Jerryco, and Roger Leslie drove to the parking lot and waited for the black Camaro. When it did not appear, Jerryco went inside the casino to telephone Ricky. While Jerryco was inside the casino, a white Cadillac pulled up behind Green’s red truck. By Green’s description, one man suddenly appeared at his window and another man appeared at the driver’s side window where Leslie was sitting. Both men were armed with pistols. One robber took $400 from Green’s pocket, and then he “kind of butted” Green in the head with the pistol and said, “That’s not all you got. You don’t think I’ll kill you?” He took the remaining $4,000. As one armed man attempted to flee the scene, the other armed man demanded that Leslie give him the keys to Green’s truck. Once they retrieved the keys, ensuring they could not be followed, the robbers sped away from the casino against the flow of traffic and headed toward Arkansas. Several other individuals testified that they witnessed a white Cadillac speeding out of the casino parking lot heading toward Arkansas. Following the robbery, Green and Leslie reported the incident to a casino security officer who contacted the police.

¶4. When Coahoma County Investigator Fernando Bee arrived at the casino he interviewed Green and Leslie, and the two victims gave Bee descriptions of the robbers and of the white four-doór Cadillac they were driving. They also gave Bee a partial license plate number of the vehicle; however, he was unable to match the number. The individual who robbed Green was described as having a -stocky build, a dark complexion, braids or dreads, a partial gold tooth, and, according to Green, a chubby face. A day or two after the robbery, Bee received a call from Chief Deputy David Lawman in Phillips County, Arkansas. Bee met with Lawman in Arkansas and obtained photos of possible suspects, one of which was Brownlee. After returning to Mississippi, Bee developed a photo lineup consisting of photos of Brownlee and five other individuals. The following day Green came to the station to view the lineup and identified Brownlee as the person who robbed him. The next day, Leslie viewed the same lineup and also identified Brownlee as the robber. Green and Leslie then signed affidavits against Brownlee and he was arrested in Arkansas soon after. However, Bee never discovered the white Cadillac, the gun used in the robbery, or any removable gold teeth.

¶ 5. At trial, Brownlee took the stand in his defense. He unequivocally stated that he did not rob Green or anyone else. He claimed he was helping his paraplegic nephew at a gym in Helena, Arkansas when the robbery occurred. He testified that his family owned a white Cadillac which he drove, but claimed the white Cadillac on the surveillance video was not his because his car had dark tinted windows and a dent on the left side and the car in the video did not.

PROCEDURAL HISTORY

¶6. The Coahoma County grand jury returned an indictment against Brownlee on May 30, 2006. Brownlee pleaded not guilty, and a two-day trial began on July 24, 2006. The jury found Brownlee guilty of both counts'of armed robbery, but was not able to fix a penalty. After a sentencing hearing on August 14, 2006, the circuit court sentenced Brownlee to two concurrent fifteen-year sentences with seven years to serve and eight years suspended. Posttrial, Brownlee filed unsuccessful motions for JNOV and, alternatively, for a new trial. Aggrieved, Brownlee appeals and raises the following issues:

I. WHETHER THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION FOR DIRECTED VERDICT AND MOTION FOR JNOV.

II. WHETHER APPELLANT’S COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

Finding no error, we affirm.

.ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION FOR DIRECTED VERDICT AND MOTION FOR JNOV, OR IN THE ALTERNATIVE, A MOTION FOR NEW TRIAL.

¶ 7. The standard of review we must employ upon our review of a denial of a motion for directed verdict or motion for JNOV has been aptly stated as such:

We must, with respect to each element of the offense, consider all of the evidence — not just the evidence which supports the case for the prosecution— in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Le v. State, 913 So.2d 913 (¶ 163) (Miss.2005) (quoting Wetz v. State, 503 So.2d 803, 807 (Miss.1987)). Such is a high standard for any defendant to overcome, and one which Brownlee fails to do so here.

¶ 8. Brownlee was tried and convicted by a jury on two counts of violating Mississippi Code Annotated section 97-3-79 (Rev. 2006) which states:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

¶ 9. The testimony and evidence before the jury, as laid out above, shows that two witnesses identified Brownlee out of court from a photo array and also made in-court identifications of Brownlee as the culprit who robbed Green at gunpoint of $4,400. As to this, Brownlee argues that the photo lineup was “impermissibly suggestive” because he was the only individual who had dread locks and cites Dennis v. State, 904 So.2d 1134 (Miss.App.2004) in support. In Dennis, the defendant made a similar argument and indicated that the suggestive nature of the lineup stemmed from the facts that his picture was a driver’s license picture while the others were pictures of inmates and that his image was larger than the others. Dennis, 904 So.2d at (¶ 9). The supreme court conceded the differences identified by Dennis, but found the issue “absolutely devoid of any merit.” Id. at (¶ 13). In so doing, the court pointed out that each picture had the same format and the men pictured had the same complexion. Id. at (¶ 12).

¶ 10. An in-court identification by an eyewitness will not be thwarted by an impermissibly suggestive pre-trial identification unless under the totality of circumstances “the identification was so im-permissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Houston v. State, 887 So.2d 808(1117) (Miss.Ct.App.2004) (quoting Nicholson v. State, 523 So.2d 68, 72 (Miss.1988)). Therefore, we must determine if Greens’s and Leslie’s photo identifications of Brownlee carried a likelihood of irreparable misidentification. In so doing, we must apply the factors expounded in Neil v. Diggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401,(1972), listed as follows: (1) the opportunity of the witness to view the accused at the time of the crime, (2) the degree of attention exhibited by the witness, (3) the accuracy of the witness’ prior description of the criminal, (4) the level of certainty exhibited by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.

¶ 11. The photo lineup in the case sub judice was a grouping of six pictures of men. As in Dennis, they were of the same complexion, appeared to be of the same age group, and the size of the image of each man was roughly equivalent. While Brownlee is the only individual in the lineup with dread locks, other individuals could reasonably be said to have the same or similar hairstyle, especially given the less than stellar detail of the photos in the array. Additionally, Green was able to ■view his robber’s face for a full four minutes. He testified that Brownlee exited a white Cadillac and, all of a sudden, was in his window with a gun. He identified Brownlee exactly as he did to the police. Namely, he described Brownlee as having braids and a chubby face. When asked if he would ever forget Brownlee’s face, Green responded, “No, sir, never will.” Green was shown the lineup approximately two weeks after the robbery and Bee testified that when Green identified Brownlee from the photo lineup his only hesitation stemmed not from uncertainty that Brown-lee was the robber, but from his confusion of the numbers used in the photo indicating height. As such, Brownlee’s claim that Green’s pre-trial identification was somehow tainted is without merit.

¶ 12. As to Leslie’s out-of-court identification, we reach the same conclusion. Leslie testified that he observed Brownlee rob Green and gave a description to Bee that the robber was slim with “dreads”, and he identified Brownlee in the photo lineup the day after Green. Based upon the record before us, we cannot say Leslie’s identification of Brownlee from the photo lineup “was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” “Short of finding that under all the circumstances, there is a very substantial likelihood of irreparable misidentification from the identification of an accused made under suggestive and unnecessary police identification procedures, evidence of such an identification is for the jury to weigh.” McNeal v. State, 405 So.2d 90, 93 (Miss. 1981).

¶ 13. The jury heard the testimony of Green and Leslie. Specifically, they testified that Brownlee was the individual that robbed Green of $4,400. There was testimony that the robber had a partial gold tooth and neither Green nor Leslie recalled the Cadillac having tinted windows. However, the jury heard testimony of the cosmetic appeal of removable gold teeth and Brownlee’s claim that his Cadillac had dark tinted windows.

The jury is charged with the responsibility of weighing and considering conflicting evidence, evaluating the credibility of witnesses, and determining whose testimony should be believed. The jury has the duty to determine the impeachment value of inconsistencies or contradictions as well as testimonial defects of perception, memory, and sincerity. It is not for this Court to pass upon the credibility of witnesses and where evidence justifies the verdict it must be accepted as having been found worthy of belief.

Houston v. State, 887 So.2d 808, 816(¶ 38) (Miss.Ct.App.2004) (quoting Smith v. State, 821 So.2d 908(¶4) (Miss.Ct.App. 2002)). In the case sub judice, the jury was instructed in accordance with the Big-gers factors enumerated above, and after hearing the testimony of all witnesses and Brownlee himself, found him guilty. Viewing all evidence in a light most favorable to the verdict, we cannot say that given such evidence “reasonable and fair-minded jurors could only find the accused not guilty.” We find Brownlee’s argument without merit.

¶ 14. Turning our focus to the trial court’s denial of Brownlee’s motion for new trial, .we are concerned with the weight of the evidence rather than its sufficiency. When reviewing the weight of the evidence the following standard must be utilized:

A motion for a new trial is addressed to the sound discretion of the trial judge who may grant a new trial if he deems such is required in the interest of justice or [if] the verdict is contrary to law or the weight of the evidence. The trial judge should not order a new trial unless he is convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice.
In reviewing this claim, this Court must accept as true the evidence favorable to the State. This Court will reverse only when, it is convinced that the trial judge has abused his discretion. Further, where there is conflicting testimony, the -jury is the judge of the credibility of the witnesses.

(quoting Wetz, 503 So.2d at 812). In reviewing the evidence laid out above, we are convinced the trial judge did not abuse his discretion in denying Brownlee’s motion for new trial. As such, this issue is without merit.

II. WHETHER APPELLANT’S COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 15. Brownlee next claims that his trial counsel provided ineffective assistance. Specifically, he claims his counsel was ineffective by failing to investigate, determine, and call alibi witnesses who could place Brownlee at Champ’s Health and Fitness Club in West Helena, Arkansas at the time of the robbery. Further, Brownlee argues his counsel’s failure to file a motion to suppress the photo lineup was constitutionally ineffective assistance of counsel. In support, Brownlee points to affidavits from four individuals that indicate Brownlee was at the fitness club between 3:30 p.m. and 5:30 p.m. the day of the robbery.

¶ 16. As noted by Brownlee and the State, an ineffective assistance of counsel claim raised on direct appeal should not be ruled upon by the reviewing court unless the court can say “the record affirmatively shows ineffectiveness of constitutional dimensions.” Read v. State, 430 So.2d 832, 841 (Miss.1983). The Read court explained the proper procedural rules a reviewing court must follow when presented with an ineffective assistance of counsel claim on direct appeal as follows:

(1)Any defendant convicted of a crime may raise the issue of ineffective assistance of counsel on direct appeal, even though the matter has not first been presented to the trial court. The Court should review the entire record on appeal. If, for example, from a review of the record ... this Court can say that the defendant has been denied the effective assistance of counsel, the Court should also adjudge and reverse and remand for a new trial.
(2) Assuming that the Court is unable to conclude from the record on appeal that defendant’s trial counsel was constitutionally ineffective, the Court should then proceed to decide the other issues in the case. Should the case be reversed on other grounds, the ineffectiveness issue, of course, would become moot. On the other hand, if the Court should otherwise affirm, it should do so without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings. If the Court otherwise affirms, it may nevertheless reach the merits of the ineffectiveness issue where (a) as in paragraph (1) above, the record affirmatively shows ineffectiveness of constitutional dimensions, or (b) the parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge [who was] able to consider the demeanor of witnesses, etc. are not needed.
(3) If, after affirmance as in paragraph (2) above, the defendant wishes to do so, he may then file an appropriate post-conviction proceeding raising the ineffective assistance of counsel issue. Assuming that his application states a claim, prima facie, he will then be entitled to an evidentiary hearing on the merits of that issue in the Circuit Court of the county wherein he was originally convicted. Once the issue has been formally adjudicated by the Circuit Court, of course, the defendant will have the right to appeal to this Court as in other eases.

Read, 430 So.2d at 841-42 (internal citations omitted).

¶ 17. As we are affirming the lower court’s rulings brought into question by Brownlee, we may only reach the merits of his ineffective assistance of counsel claim if the parties stipulate the record is adequate, or we are satisfied the record affirmatively shows ineffectiveness of constitutional dimensions. Neither condition is satisfied. The parties have made no such stipulation and we cannot say that the record before us is sufficient, without more, to establish ineffective assistance of counsel. As such, Brownlee’s claim of ineffective assistance of counsel will not be addressed and it is dismissed without prejudice so as to preserve his right to renew such a claim on post-conviction collateral relief if he so chooses.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF COUNT I, ARMED ROBBERY AND SENTENCE OF FIFTEEN YEARS WITH EIGHT YEARS SUSPENDED, AND COUNT II, ARMED ROBBERY AND SENTENCE OF FIFTEEN YEARS WITH EIGHT YEARS SUSPENDED, WITH SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Paul FRATESI, Appellant v. CITY OF INDIANOLA, Mississippi, A Municipal Corporation, Appellee.
    No. 2006-CA-01977-COA.
    Court of Appeals of Mississippi.
    Jan. 8, 2008.

      Nathan P. Adams, Greenville, for appellant.
    George Ellis Abdo, Jackson, for appel-lee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. In this inverse condemnation case, we find ourselves at the intersection of a municipality’s right to use and maintain its prescriptive easement and its obligation to pay just compensation for property taken or damaged for a public use.

FACTS

¶ 2. Paul Fratesi owns 120 acres of land abutting the western side of Faisonia Avenue in Indianola, Mississippi; he owns title to the centerline of Faisonia Avenue. The subject land has been in Fratesi’s family for over seventy years and owned by Fra-tesi himself for about thirty years. Faiso-nia Avenue and the ditches running alongside it have been in existence for over fifty years. In August or September 2004, the City of Indianola (City), without the knowledge or consent of Fratesi, began a project to improve the drainage ditches on both sides of Faisonia Avenue. At the time the City began the project, the subject property was being leased to Gary Fratesi, the Appellant’s son, for farming. On the day the project began, Gary went to the work-site and requested that the excavated dirt be deposited on the subject land. Gary planned to use the excess dirt to improve an existing “pad” on the land. Later that day, Fratesi went to the work site and advised the workers that the project must stop. After some heated discussion, the City ceased work on the project. As a result of the work already performed by the City, the ditch had been widened a few feet.

¶ B. Unhappy with the City’s actions, Fratesi filed suit in the Chancery Court of Sunflower County alleging (1) that the City trespassed on his property by commencing the project without his permission, (2) that the project widened the ditch and thus constituted a taking of his property for which he was entitled to just compensation, and (3) that Fratesi was entitled to injunctive relief.

¶4. A bench trial was conducted at which Fratesi testified. He stated that Faisonia Avenue and the ditches running alongside it had been in existence as long as he could remember. He stated that the City reconstructed a portion of Faisonia Avenue to straighten a sharp curve in about 1970 and that the City maintained the road’s gravel surface until about 1998 when Faisonia Avenue was blacktopped by the City. Fratesi stated that prior to the taking, water pooled on a three acre portion of his property. He claimed that, as result of the drainage project, more water now pools on this portion of his land. Also, despite his testimony that he had, for several years, ceased to access his property from Faisonia Avenue, Fratesi claimed that the project resulted in a loss of access to Faisonia Avenue, for which Fratesi claimed he was entitled to damages.

¶ 5. At the conclusion of the evidence, the trial court held in favor of the City. The court found that the City had a prescriptive easement over Faisonia Avenue and the drainage ditch. The court found that the ditch was, in fact, widened and that Fratesi will no longer be able to access Faisonia Avenue. The court found the evidence insufficient to support Fra-tesi’s allegation that more water was standing on his property as a result of the project. Because the City had ceased its work, the court found Fratesi’s request for an injunction moot. As to Fratesi’s request that the ditch be returned to its original condition, the court found it impracticable or impossible. The court ultimately denied all of Fratesi’s claims, finding the evidence insufficient to prove damages.

¶ 6. Fratesi appeals and argues (1) that the trial court erred in not granting a permanent injunction, (2) that the City failed to prove its prescriptive easement as to the width of the ditches, (3) that the trial court erred in not awarding damages for the taking of his property for public use, and (4) that the trial court erred in not awarding damages for mental distress.

DISCUSSION

¶ 7. On appeal, a chancellor’s findings will not be reversed unless “he was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Madison County v. Hopkins, 857 So.2d 43, 47(11) (Miss.2003). However, questions of law are reviewed de novo. Id.

1. Permanent Injunction

¶ 8. Fratesi argues that the trial court erred in not granting a permanent injunction restraining further construction and directing the City to restore the ditch to its original condition. Fratesi cites no authority to support this claim in either his principal brief or his reply brief. The failure to cite authority in support of assignments of error precludes this Court from considering the claim on appeal. Graves v. Maples, 950 So.2d 1017,1022(18) (Miss.2007). Therefore, we do not consider this issue.

¶ 9. In .the interest of explanation, we briefly note .that Fratesi was not entitled to injunctive relief. As to his request that the City be restrained from further construction, the trial court correctly determined that the issue was moot as the City had already ceased work on the project. Regarding Fratesi’s request for restoration, we note that a party seeking a permanent injunction “must show an imminent threat of irreparable harm for which there is no adequate remedy at law.” Reynolds v. Amerada Hess Corp., 778 So.2d 759, 765(28) (Miss.2000) (emphasis added). Given the public purpose of the City’s project, Fratesi would be entitled to just compensation, if and to the extent that the project constituted a taking. Therefore, Fratesi was not entitled to injunctive relief because he had an’ adequate remedy at law.

2. Prescriptive Easement'

¶ 10. Fratesi argues that the City failed to prove that it had acquired a prescriptive easement over his property. We separate this issue into two sub-parts: (1) whether the City acquired prescriptive rights in Faisonia Avenue and the drainage ditch as it existed prior to the project, and (2) whether the City’s prescriptive rights in the road and ditch permitted the widening of the ditch incident to the maintenance of the easement.

¶ 11. “It is well settled in this State, that a public road can be established by prescription.” Joachim v. Villa Santini, Inc., 353 So.2d 767, 768 (Miss.1977) (citations omitted). To prove an easement by prescription, one must show that the use is (1) open, notorious, and visible, (2) hostile, (3) under claim of ownership, (4) exclusive, (5) peaceful, and (6) continuous and uninterrupted for ten years. Rogers v. Marlin, 754 So.2d 1267, 1272(12) (Miss.Ct.App.1999). The party seeking to establish a prescriptive easement must prove these elements by clear and convincing evidence. Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152-53 (Miss.1992).

¶ 12. In the instant case, Fratesi himself testified that Faisonia Avenue and the ditches running alongside had been in existence as long as he could remember, that the public had used the road for decades, and that the City had maintained the road. Fratesi presented no evidence regarding permissive use, interruption, nor any other theory which would negate the City’s claim of prescriptive easement. We find that the City proved a prescriptive easement in the land underlying Faisonia Avenue and the drainage ditch as it existed prior to the project.

¶ 13. At this point, we encounter the pivotal issue in this appeal: whether the City’s right to use and maintain its easement encompassed the widening of the ditch. We note that this precise issue was not addressed by either o.f the parties or the trial court. The trial court correctly determined that “with a prescriptive easement, the public gets what users use.” Based on this finding, the trial court then proceeded directly into a determination of damages based on eminent domain. In our opinion the trial court’s findings failed to consider an easement holder’s right to maintain its easement without causing an undue burden on the servient owner’s estate. For this reason, we, find that a new trial is warranted for such a determination. In the following discussion, we briefly examine the law surrounding this issue in an effort to aid the trial court on remand.

¶ 14. Generally, the scope of a prescriptive easement is defined by the adverse use exercised during the period of prescription. West Point v. Womack, 178 Miss. 808, 815 174 So. 241, 242 (1937). However, the owner of a prescriptive easement is “ ‘authorized to make any use of the servient estate that is reasonably necessary for the convenient enjoyment of the servitude for its intended purpose[,] ...’” so long as such use does not “ ‘cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment....’” Bivens v. Mobley, 724 So.2d 458, 464(26) (Miss.Ct.App.1998) (quoting Restatement of the Law (Third) of Property (Servitudes) § 4.10 cmt. c.). Mississippi law recognizes that “ ‘uses that are reasonably necessary for enjoyment of an easement change over time as technology changes and as use of the dominant and servient estates changes.’ ” Id. at 464(28) (quoting Restatement of Property § 4.10 cmt. c.). Our supreme court has held that the owner of a prescriptive easement has the burden to repair and maintain the easement and thus “has an implied secondary easement to enter the servient property to perform the necessary maintenance and repair.” Fourth Davis Island Land Co. v. Parker, 469 So.2d 516, 523 (Miss.1985).

¶ 15. In sum, we note that the scope of a prescriptive easement is not strictly limited to the adverse use exercised during the period of prescription. So long as the servient estate is not unreasonably interfered with or damaged, the easement holder is authorized to perform maintenance reasonably necessary to permit the continued use and enjoyment of the easement for its intended purpose.

¶ 16. The chancellor made no finding as to whether the City’s maintenance was reasonably necessary and whether the servient estate was unreasonably interfered with or damaged. Therefore, we find it necessary to reverse and remand for a new trial, at which the issue may be addressed. In so finding, we recognize that the issue is a close one. We do not mean to suggest that the chancellor would be incorrect in finding that the City’s actions in widening the ditch were permissible as incident to the reasonable maintenance of its easement. We seek only to erase any presumption compelling the conclusion that the City has misused or overused its easement solely because the ditch was widened beyond the dimensions existing prior to the project. In light of our decision to reverse and remand, we address Fratesi’s remaining issues for the limited purpose of narrowing the issues to be addressed at the new trial.

3. Damages for Taking

¶ 17. Fratesi argues that the widening of the ditch constituted a taking for which he is entitled to damages. As stated above, the chancellor determined that the ditch had been widened and proceeded to determine damages on the theory of eminent domain. The chancellor concluded that Fratesi was entitled to no damages because he failed to prove that the project resulted in a loss of value to the remainder of his land. Although, the record is unclear as to exactly how much the ditch was widened, it was undisputed at trial that the ditch had been widened. However, the trial judge failed to acknowledge that a portion of Fratesi’s land, albeit small, was taken by virtue of the ditch being widened. “Due compensation has two components: the value of the property taken and the damage, if any, to the remainder.” Miss. State Highway Comm’n v. Franklin County Timber Co., 488 So.2d 782, 785' (Miss.1986).

¶ 18. Therefore, if, on remand, the chancellor finds that the City exceeded the scope of its easement by widening the ditch, Fratesi will at least be entitled to damages for the physical occupation of his property, even if the chancellor finds no damages to the remainder.

J. Damages for Mental Distress

¶ 19. Fratesi claims that the trial court erred in not awarding damages for mental distress caused by the actions of the City and its employees in connection with the project. Fratesi attempted to show outrageous conduct by alleging that he was cursed out by the City’s workers when he approached them to ask that the project be stopped. The City argues that the City’s conduct was neither extreme nor outrageous so as to give rise to damages for mental distress. Burroughs v. FFP Operating Partners, L.P., 28 F.3d 543 (5th Cir.1994). The City also claims that the chancellor correctly found that any mental distress caused was not a reasonably foreseeable result of the widening of the ditch.

¶ 20. In order to recover on a claim for mental distress, a plaintiff “must always prove that the emotional distress was a reasonably foreseeable result of the defendant’s conduct.” Morgan v. Greenwaldt, 786 So.2d 1037, 1044(23) (Miss.2001) (citing Adams v. U.S. Homecrafters, Inc., 744 So.2d 736, 742 (¶¶17-18) (Miss.1999)). In the instant case, the City’s actions do not rise to the level of extreme or outrageous conduct. Furthermore, any emotional injuries suffered by Fratesi cannot be considered a reasonably foreseeable result of the City’s actions in widening a ditch on his property. This issue is without merit.

1121. THE JUDGMENT OF THE CHANCERY COURT OF SUNFLOWER COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . Gary Fratesi is on the City Board of Indian-ola, and was aware of the City’s plans to improve the drainage ditches along Faisonia Avenue.

      . A pad is a raised mass of dirt which functions as a dam of sorts. Fratesi stated that the pad was in place to improve irrigation by preventing water from draining off of his farmland and into the ditch.

      . The record is unclear as to how much the ditch was widened. Testimony adduced that the ditch was widened anywhere from four feet to fifteen feet.


text:
    Andre L. CRAWFORD, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01871-COA.
    Court of Appeals of Mississippi.
    Jan. 8, 2008.

      Leslie S. Lee, Jackson, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ■ CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Andre L. Crawford was convicted in the Circuit Court of Clay County of aggravated assault and sentenced to sixteen years in the custody of the Mississippi Department of Corrections, with four years of post-release supervision. He appeals and asserts that the indictment was defective for omitting the words “serious bodily injury,” and that the verdict of the jury was not supported by sufficient evidence and was against the weight of the evidence because the victim never saw Crawford with a knife or pull a knife. Finding no reversible error, we affirm.

FACTS

¶ 2. Harold Jordan, a resident of West Point, Mississippi, was known to sell liquor at his home after hours. Jordan would sell alcohol after the stores closed to make extra money. On January 2, 2006, Crawford and his drinking buddy, Andre Rice, watched a football game together at the Crawford’s sister’s house. According to Rice, Crawford was in and out all evening. They both eventually left and stopped by Jordan’s house seeking to obtain liquor. They asked for whiskey initially and explained that they had left their money in' the car. Jordan refused to give them liquor on credit but they continued to demand free service. Jordan repeatedly refused their demands because he had already given Rice “a free beer and stuff.” Angered by Jordan’s refusal to give him free liquor, Crawford then resorted to violence to express his discontent. Rice, who was standing at the door, noticed that Crawford was angry. Rice stated that Crawford and Jordan exchanged words, Crawford pushed Jordan, and ran past him through the door. Rice fled behind Crawford. Jordan was left with a knife dangling in his throat. Verifying that he was indeed injured, Jordan then pulled the knife out of his neck. Jordan stated that he did not see the knife in Crawford’s hand. Rice too claimed that he did not see a knife. However, Jordan, after pulling the knife out of his neck and watching his blood spew, had no doubt that Crawford stabbed him in the neck with a knife.

¶ 3. At trial, Crawford moved for a directed verdict at the close of the State’s case-in-chief. His motion was denied. Crawford then raised an alibi defense by presenting three witnesses on his behalf as to his whereabouts on the evening in question. The alibi witnesses claimed that Crawford was at home with his mother on this evening in question. At the close of the evidence, the jury returned a verdict of guilty of aggravated assault. He was sentenced to sixteen years in the custody of the Mississippi Department of Corrections. Crawford’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial was overruled.

¶ 4. Crawford’s trial counsel timely perfected his appeal and the Mississippi Office of Indigent Appeals undertook representation. Counsel for Crawford represented to the Court, pursuant to Lindsey v. State, 939 So.2d 743 (Miss.2005), that he had diligently searched the procedural and factual history of this record and found no arguable issue for appellate review. However, Crawford has raised several issues in a pro se capacity. He argues that his indictment was fatally defective for omission of the words “serious bodily injury” which he argues is an essential element of the offense of aggravated assault. Crawford also challenges the sufficiency and weight of the evidence.

DISCUSSION

¶ 5. With respect to the first issue, Crawford contends that the indictment was defective because it failed to allege serious bodily injury. In charging the offense of aggravated assault in violation of Mississippi Code Annotated section 97-3-7, the indictment against Crawford provides the following:

[L]ate of the county aforesaid, on or about the 3rd day of January 2006, in the County aforesaid, did unlawfully, wilfully, feloniously, purposely and knowingly cause bodily injury to Harold Jordan, a human being, with a deadly weapon, to wit: a knife, by cutting the throat of the said Harold Jordan with the said knife, without authority of law and not in necessary self defense, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

116. We find no error in the omission of the words “serious bodily injury” from the indictment where, as here, the injury is inflicted with a deadly weapon. Miss.Code Ann. § 97-3-7(2)(b)(Rev.2006); see Jackson v. State, 594 So.2d 20, 24 (Miss.1992); Anthony v. State, 349 So.2d 1066, 1067 (Miss.1977).

¶ 7. With respect to the challenge of the sufficiency of the evidence, Crawford relies on his alibi defense. This was an issue of fact to be resolved by the jury. Gray v. State, 549 So.2d 1316, 1319 (Miss.1989). The jury was under no obligation to accept his defense. Lee v. State, 457 So.2d 920, 924 (Miss.1984). In reviewing challenges to the sufficiency of evidence, this Court considers all of the evidence in the light most favorable to the State and gives the State the benefit of all favorable inferences that may be drawn from the evidence. Seeling v. State, 844 So.2d 439, 443(¶ 8) (Miss.2003); Jefferson v. State, 818 So.2d, 1099, 1111(130) (Miss.2002). This Court is “not at liberty to direct that the defendant be discharged short of a conclusion on our part that given the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt the defendant was guilty.” Ashford v. State, 583 So.2d 1279, 1281 (Miss.1991) (quoting Fairchild v. State, 459 So.2d 793, 798 (Miss.1984)).

¶ 8. The issue we are faced with addresses whether, given the evidence contained in the record, no reasonable juror could find Crawford guilty of aggravated assault beyond a reasonable doubt. Mississippi Code Annotated section 97-3-7(2)(b) (Rev.2006) directs that an individual is guilty of aggravated assault if he “attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm[.]” The evidence in this case, when viewed in the light most favorable to the State, more than satisfies our standard of review. The testimony that Jordan did not see the knife being projected at him is of no consequence to this issue. The evidence of a dangling knife was left for all to see immediately after an angry Crawford lunged at Jordan. This altercation was motivated by Jordan’s refusal to give him free liquor.

¶ 9. With respect to the challenge to the weight of the evidence, our standard of review is as follows:

In determining whether a jury verdict is against the overwhelming weight of the evidence this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Baker v. State, 802 So.2d 77, 81(¶14) (Miss.2001) (quoting Dudley v. State, 719 So.2d 180,182(¶ 8) (Miss.1998)).

¶ 10. Applying this standard of review to the facts before the Court, we cannot say that allowing the verdict to stand would amount to an unconscionable injustice. Evidence was presented to the jury that Crawford was angry because Jordan refused to provide him with free liquor and that Crawford lunged at and pushed Jordan, who was left with a knife dangling in his neck. Notwithstanding the fact that neither Jordan nor Rice saw the knife thrust into his neck, ample evidence was presented to the jury to support a finding that Crawford stabbed Jordan with a knife.

¶ 11. The jury was instructed as to Crawford’s alibi defense and resolved the issue against him. The jury simply did not believe that Crawford was at home with his mother that evening. “fTJhis court is bound by the jury findings upon an issue presented by the instruction requested by [the] appellant.” Kinney v. State, 336 So.2d 493, 496 (Miss.1976). Therefore, this issue is without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF SIXTEEN YEARS WITH FOUR YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

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


author: MYERS, P.J.,

text:
    Kelli Ann DORSEY, Appellant v. Billy Wayne DORSEY, Appellee.
    No. 2006-CA-00328-COA.
    Court of Appeals of Mississippi.
    Jan. 8, 2008.

      John W. Christopher, attorney for appellant.
    John Robert White, Ridgeland, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Kelli Dorsey seeks review of the chancellor’s findings, claiming the chancellor committed manifest error, first, in determining that the business, Engineered Systems, Inc. (ESI), and a five-acre parcel of land, Lot Six, were Billy Dorsey’s separate property and did not qualify as marital assets. Second, Kelli claims that the chancellor committed manifest error in her division of marital assets. Next, Kelli requests review of the chancellor’s denial of her request for alimony. Finally, Kelli asserts on appeal that the chancellor incorrectly denied her request for attorney’s fees and costs incurred during trial. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Billy Wayne Dorsey and Kelli Ann Dorsey were married on March 22, 1986. There were three children born of the marriage: Daniel Scott Dorsey, born September 26, 1985, Shawn Christopher Dorsey, born June 16, 1987, and Sarah Nicole Dorsey, born November 17, 1993. Kelli was employed at both Valley Bank and at ESI before returning to school and obtaining her nursing degree. Billy took over ESI from his father and is the present owner of ESI. The parties separated on June 29, 2004, and Kelli was granted a divorce on October 10, 2005, on the grounds of Billy’s habitual drunkenness.

¶ 3. The chancellor determined in her findings that neither Billy’s company, ESI, nor the five-acre plot of land donated to him by his family transmuted into marital property. The chancellor further denied Kelli’s request for alimony and her request for attorney’s fees and expenses incurred during trial.

¶ 4. Following the trial, Kelli filed a motion for new trial or, in the alternative, a motion for amendment of the judgment on October 20, 2005. Kelli, aggrieved with the chancellor’s findings, timely filed this appeal.

STANDARD OF REVIEW

¶ 5. ‘When [an appellate court] reviews a chancellor’s decision in a case involving divorce and all related issues, our scope of review is limited by the substantial evidence/manifest error rule.” Yelverton v. Yelverton, 961 So.2d 19, 24(¶ 6) (Miss.2007) (citing R.K. v. J.K., 946 So.2d 764, 772(¶ 17) (Miss.2007)). Therefore, we will “not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or a clearly erroneous standard was applied.” Yelverton, 961 So.2d at 24(¶ 6). With regard to matters dealing with divorce, custody, and child support, we will “respect a chancellor’s findings of fact which are supported by credible evidence and not manifestly wrong.” R.K, 946 So.2d at 772(¶ 17). Further, with regard to the standard of review used when looking at a chancellor’s division of property and assets, a “chancellor’s division and distribution will be upheld if it is supported by substantial credible evidence.” Owen v. Owen, 928 So.2d 156, 160(¶ 10) (Miss.2006). “The award of attorney fees in divorce cases is left to the discretion of the chancellor, assuming he follows the appropriate standards.” Creekmore v. Creekmore, 651 So.2d 513, 520 (Miss.1995) (citing Adams v. Adams, 591 So.2d 431, 435 (Miss.1991)). Further, neither party is entitled to fees unless the requesting party “has established the inability to pay.” Creekmore, 651 So.2d at 520 (citing Dunn v. Dunn, 609 So.2d 1277, 1287 (Miss.1992)).

DISCUSSION

I. WHETHER THE CHANCELLOR COMMITTED MANIFEST ERROR IN THE DIVISION OF MARITAL ASSETS, SPECIFICALLY, CLASSIFYING ENGINEERED SYSTEMS, INC., AND THE FIVE ACRE PARCEL OF LAND AS SEPARATE PROPERTY.

¶ 6. First, Kelli asks this Court to review whether the chancellor’s determination that both ESI and the five-acre parcel of land were Billy’s separate property was manifestly erroneous. Billy argues that the chancellor did not commit manifest error and her determination was proper. This Court is asked to consider whether the chancellor committed manifest error in determining that neither the business nor the land lost its identity as Billy’s separate property and became marital assets by transmutation.

¶ 7. Kelli argues in her appeal that both ESI and Lot Six were used in such a manner that caused them to lose their identity as Billy’s separate property and instead became commingled, transforming into marital assets. Kelli contends that she contributed to ESI by performing clerical and bookkeeping services, which in turn caused ESI to become a marital asset. Kelli further' explains she was not compensated by ESI during the nine-year period of time she worked at both ESI and Valley Bank, her previous employer. Kelli further argues that her personal funds were used to pay for ESI’s expenses and debts, as well as taxes on the Lot Six property. Kelli argues with regard to Lot Six that the entire family used and maintained the land, which converted it into a marital asset. Kelli asserts this evidence established that ESI and Lot Six were used for domestic purposes and as such became marital assets.

¶ 8. The facts are undisputed that ESI was given solely to Billy by his father, Jackie Dorsey. Billy argues that this company was, at all times, his separate property and never became part of the marital assets. Further, a five-acre parcel of land, Lot Six, was also given solely to Billy by Engineered Environmental Equipment, Inc., which was owned by his brothers. Billy argues that this, too, is his separate property and the chancellor was correct in her decision awarding the property to him. Billy argues that the record and case law support the chancellor’s determination that both ESI and Lot Six remained Billy’s separate property. Billy argues there was no documentary evidence introduced at trial which established that property taxes for Lot Six were paid out of marital funds. Further, Billy contends that Kelli introduced no testimony concerning the amount of time the family used Lot Six for recreational purposes after it was transferred to Billy. Further, with regard to ESI, Billy argues the chancellor was correct in finding that Kelli failed to show the court that personal and business expenses were so interwoven as to cause ESI to have transmuted into marital property. Further, Billy asserts that the chancellor’s determination was correct that his infrequent use of business equipment for personal endeavors did not cause ESI to became a marital asset.

¶ 9. When dividing marital assets, “the chancellor must first classify [the parties’] assets and liabilities as belonging to the marriage, to the husband, or to the wife.” Smith v. Smith, 856 So.2d 717, 719(¶8) (Miss.Ct.App.2003) (citing Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994)). The chancellor must then evaluate how to divide the marital assets of the parties using the factors set out in Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994).

¶ 10. In the case sub judice, the chancellor properly set out and evaluated the Ferguson factors, and divided the property into marital and separate classifications accordingly. Id. The chancellor found that both Lot Six and ESI qualified as inter vivos gifts under the requirements set out in Hankins v. Hankins, 729 So.2d 1283 (Miss.1999).

¶ 11. Kelli asserts that ESI stock was transmuted into marital property. However, the chancellor determined that ESI was transferred to Billy by his father in 1996 as an inter vivos gift. The chancellor found that while some personal funds may have been used to pay business debts, those amounts are easily traceable and have not become so commingled as to have become unidentifiable. Further, the chancellor determined that the evidence presented by Kelli was insufficient to convince the court that personal and business expenses were so interwoven as to have caused the stock of ESI to have transmuted into marital property. We agree and affirm accordingly.

¶ 12. Additionally, Lot Six was conveyed to Billy on January 15, 2003, by his brothers. The chancellor found that the land donation met all the requirements of an inter vivos gift under the guidelines in Hankins. Id. Kelli asserted at trial that the property had transmuted into marital property since the children rode across the lot on four wheelers and since marital funds were used to pay the property taxes. However, the chancellor noted that Billy had held title of the property for one year at that time. Further, the chancellor recognized that Kelli offered no proof that marital funds were used to pay the taxes, nor did Kelli offer corroborating testimony establishing the frequency and extent to which the children used the land in question. “When separate property and marital property are mixed to such a degree that the elements cannot be distinguished, i.e., that the separate element cannot be traced, then the entire property is considered marital property: the separate property has transmuted by commingling into marital property.” Brock v. Brock, 906 So.2d 879, 888(¶50) (Miss.Ct.App.2005). Here, the contributions Kelli may have made by paying one year of property taxes are both minimal and easily traceable. As such, this Court cannot find the chancellor committed manifest error by determining that Lot Six was Billy’s separate property.

II. WHETHER THE CHANCELLOR ERRED IN THE DIVISION OF THE MARITAL ASSETS.

¶ 13. Kelli further argues that the chancellor erred in her division of the marital assets. The value of ESI’s stock was the marital asset which was in dispute between the parties. Both parties presented experts on the matter. Billy argues that the chancellor was correct in adopting his expert’s opinion in calculating the value of Billy’s interest in ESI stock. Billy argues that it is within the chancellor’s discretion to use his expert’s valuation and further that there was sufficient information in the record to support her finding.

¶ 14. Kelli also asks this Court to review whether the chancellor’s division of marital assets was proper, particularly with regard to the assignment of value of Billy’s company, ESI. We cannot find error in the chancellor’s division of marital assets. During trial, both Kelli and Billy presented experts regarding the value of ESI. The chancellor determined in her ruling that Billy’s expert, Ms. Turner, had a more accurate and reliable approach for determining the value of ESI. Ms. Turner used the net asset approach, which was approved by our supreme court in Singley v. Singley, 846 So.2d 1004 (Miss.2002). Using the net asset approach, she valued ESI at $25,908. In making her determination, the chancellor found fault with Kelli’s expert, Mr. Bivens, who employed an income /market approach. .The chancellor found that Bivens’s assumption that ESI customers would continue to patronize the business even if Billy left the company was improper. The chancellor noted that Mr. Bivens’s income/market approach had been criticized in several subsequent cases, most notably in Watson v. Watson, 882 So.2d 95 (Miss.2004). The chancellor found that Mr. Bivens improperly used goodwill in determining the valuation of ESI. The Mississippi Supreme Court has held in the past that goodwill should not be considered when valuating a business for purposes of dividing marital assets. Yelverton v. Yelverton, 961 So.2d 19, 25(¶ 21) (Miss.2007). As such, we find no error in the chancellor’s findings and accordingly affirm.

III. WHETHER THE CHANCELLOR ERRED IN DENYING KELLI ALIMONY.

¶ 15. Next, Kelli argues that the chancellor committed manifest error in determining that she was not entitled to either lump sum or periodic alimony from Billy. Kelli submits that the chancellor failed to adequately weigh each of the factors as required in Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993). Kelli further argues that the chancellor , failed to address all the Armstrong factors adequately in her ruling.

■ ¶ 16. Billy contends the chancellor correctly determined that Kelli was not entitled to any alimony, either periodic or lump sum. Billy argues that lump sum awards are given in order to equalize disparities between the parties after the marital assets are divided. Billy asserts that because there was no large disparity or inequities between himself or Kelli, after the division of marital assets was complete, then no lump sum or periodic alimony was needed. Further, Billy contends that “the chancellor is not required to analyze each Armstrong factor individually in his opinion,- but is required to view the overall combination of the factors as a whole, opting to address individual factors at his discretion.” Blalack v. Blalack, 938 So.2d 909, 912(¶7) (Miss.Ct.App.2006) (quoting Wells v. Wells, 800 So.2d 1239, 1245(¶ 12) (Miss.Ct.App.2001)).

¶ 17. We likewise cannot find manifest error in the chancellor’s denial of Kelli’s request for alimony. “If after the equitable distribution of the marital property, both parties have been adequately provided for, then an award of alimony is not appropriate.” Tritle v. Tritle, 956 So.2d 369, 380(¶ 41) (Miss.Ct.App.2007). If the chancellor determines that “one party is left with a deficit, then the prospect of alimony should be entertained.” Roberson v. Roberson, 949 So.2d 866, 871(¶ 21) (Miss.Ct.App.2007). Kelli points to Billy’s improper conduct throughout the marriage and asserts that the chancellor failed to give Billy’s conduct sufficient weight in her decision. However, “[i]n considering whether one party should receive alimony, it is within the chancellor’s discretion to weigh each party’s marital fault.” Tritle, 956 So.2d at 381(¶ 47). This determination was clearly within the chancellor’s discretion and we cannot find she committed manifest error in her decision. Kelli also argues that the chancellor did not consider all of the Armstrong factors in her ruling and as such, failed to adequately weigh each factor. However:

[w]hen the chancellor fails to address all factors on-the-record, we are not required to remand the case, and should not, so long as all facts are available to us so as to allow an equitable determination to be made. Holcombe v. Holcombe, 813 So.2d 700, 704(¶ 12) (Miss.2002). Thus, a lack of an on-the-record consideration of the Armstrong factors by a chancellor in making his determination of the appropriateness of an alimony award will only be reversed if, after a review of all facts and application of the Armstrong factors, it appears that the chancellor’s failure to make findings of fact and corresponding conclusions of law constitutes manifest error.

Roberson, 949 So.2d at 869(¶ 6). There was adequate information in the record in the case at bar. At trial, it was determined through testimony that both parties’ income and expenses were relatively equal. The chancellor determined that Kelli’s gross monthly salary was $3,813 and Billy’s was $4,576.83. Further, the testimony at trial revealed that Kelli could increase her earning potential to $4,730 per month if she were to work a forty hour work week. With regard to health and earning capacity, the chancellor noted that each party was in good health, but she recognized Billy had problems stemming from his alcohol abuse. The chancellor also recognized that either party would suffer a financial deficit if ordered to pay support. The chancellor equally divided both the debts and marital assets and awarded Billy net assets of $63,838.62 and Kelli $65,095. The chancellor additionally found that the child support order and the additional help provided by Billy’s parents with regard to Scottie, was sufficient to take care of the minor child. Further, the chancellor gave the marital home and contents to Kelli and required Billy to pay his share of the line of credit on the marital residence. Here, we find there are sufficient facts on the record for this Court to determine that the chancellor did not commit manifest error in her determination denying alimony.

¶ 18. With regard to the chancellor’s refusal of a lump sum alimony award, we also find the chancellor did not commit error. Generally, “lump sum alimony is a tool to assist a chancellor in transferring assets to a spouse who has no legal title, but who contributed to the accumulation of property in the marriage.” Haney v. Haney, 907 So.2d 948, 952(¶ 17) (Miss.2005). Here, the chancellor specifi-eally found that the marital home, fully paid for, was a gift from Billy’s parents to Billy, Kelli, and their children. Additionally, ESI and Lot Six were both given to Billy by his family. The chancellor further determined that Billy’s parents provided most of the money for Kelli to obtain her nursing degree during the marriage. Upon obtaining her degree, Kelli has been employed as a registered nurse at Baptist Medical Center in Jackson, Mississippi. Finally, the chancellor determined that her division of the marital assets and debt would have no unfair impact on Kelli since the income from her employment is comparable to that of Billy. We accordingly affirm the chancellor’s determination.

IV. WHETHER THE CHANCELLOR ERRED IN FAILING TO AWARD KELLI ATTORNEY’S FEES AND COSTS.

¶ 19. Finally, Kelli asserts that the chancellor committed manifest error in failing to award her attorney’s fees and costs. Kelli argues that she was required to incur substantial debt in order to prove she was entitled to a divorce based on Billy’s habitual drunkenness, which he denied until trial. Kelli submits to this Court that she is financially unable to pay her attorney’s fees and is entitled to relief.

¶20. Billy argues that attorney’s fees and costs should not be awarded unless Kelli is unable to pay. Billy counters that Kelli has failed to establish that she is unable to pay and there exists no great financial disparity between the parties. While Kelli alleges that her fees were paid by a friend, Reese Lincecum, Billy points out that she was unable to produce any information regarding the terms of the loan or any documentation that a loan was made.

¶ 21. With regard to the chancellor’s determination that Kelli was not entitled to attorney’s fees and costs, we can find no error in the chancellor’s denial of her request. A chancellor’s decision regarding the award of attorney’s fees is given great discretion and will only be disturbed if it is found to be an abuse of discretion or in manifest error. Creekmore v. Creekmore, 651 So.2d 513, 520 (Miss.1995) (citing Armstrong v. Armstrong, 618 So.2d 1278, 1282 (Miss.1993)). This Court has held in the past that in order for a party to be awarded attorney’s fees, they must demonstrate an inability to pay. Kelley v. Kelley, 953 So.2d 1139, 1144(¶ 14) (Miss.Ct.App.2007). In the case sub judice, the chancellor made extensive inquires regarding the financial situation of both parties. In the chancellor’s findings, she determined that there was no great disparity in earning capacity between the two parties, and further noted that Kelli could increase her earning potential by working forty hours each week. Additionally, Kelli testified at trial that her attorney bills were up to date and paid at the time of trial. Kelli presented no documentation that she had in fact taken out a loan in order to pay her attorney’s fees. The record, therefore, does not reflect a great disparity between the earning capacity of these parties nor does it demonstrate that Kelli is unable to pay her attorney’s fees. We cannot find the chancellor committed manifest error in denying Kelli her attorney’s fees and costs.

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

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


text:
    Ronald VAUGHN, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00065-COA.
    Court of Appeals of Mississippi.
    Jan. 8, 2008.

      Michael E. Robinson, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Ronald Vaughn was convicted of aggravated driving under the influence following an accident in which his car struck a police officer on foot. Vaughn sought to suppress the results of a blood sample taken after the accident. However, the trial court denied his motion. Vaughn seeks review of the trial court’s denial of his motion to suppress the blood samples and their results. Vaughn also challenges the trial court’s denial of his motion for a directed verdict or new trial because the blood samples were improperly introduced at trial. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On February 9, 2004, Michael Holl-ingsworth, a deputy for the Warren County Sheriffs Department, was working a funeral detail. Deputy Hollingsworth parked his car, with lights flashing, on Highway 80 in order to direct traffic so that the funeral procession could continue to the nearby cemetery. A car driven by Ronald Vaughn approached and attempted to pass the funeral procession, driving east in the westbound lane. As Vaughn was passing the procession, his car struck Deputy Hollingsworth, who was attempting to flag him down. Deputy Hollingsworth flew into oncoming traffic, was thrown onto a truck, and then landed in a nearby ditch.

¶ 3. After the accident, Vaughn left his vehicle. When approached by others at the scene of the accident, Vaughn became confrontational, cursing and threatening to leave. Vaughn then fell to the ground after being told by those on the scene he would not be leaving until police arrived. Highway Patrol Officer Scott Henley arrived soon thereafter at the scene of the accident. He approached Vaughn, who was unresponsive. The officer testified he observed that Vaughn smelled of alcohol and mariguana and his eyes were dilated. Officer Henley further testified to having observed a bottle of gin and a bag of marijuana in Vaughn’s car. Vaughn was arrested and charged with aggravated driving under the influence (DUI).

¶ 4. Vaughn was then transported by Trooper Daniel Lewis of the Mississippi Highway Patrol to River Road Hospital in Vicksburg. After arriving at the hospital, Officer Henley requested that a blood sample be taken from Vaughn. Henley observed a nurse take the sample from Vaughn and he handed the container to Trooper Lewis, who sealed the sample. Henley then transported the sample to the Mississippi Crime Laboratory, where the sample later tested positive for marijuana, ecstasy, and methamphetamine. Remarkably, Hollingsworth recovered from the accident, but did suffer a very serious injury, which required extensive therapy. Vaughn was subsequently convicted of aggravated DUI.

¶ 5. Vaughn asserts the samples should have been excluded for two reasons. First, Vaughn argues that the blood samples were taken in violation of his Fourth Amendment rights. Second, Vaughn contends that the State failed to establish a proper chain of custody of the blood samples; thus, the trial court should have excluded the blood samples from evidence.

¶ 6. Vaughn contends that the blood test violated his Fourth Amendment rights because he did not consent and there was no valid search warrant. Vaughn points out that there was no emergency or exigent circumstance which prevented the police from obtaining a valid search warrant to take the blood sample. Vaughn also argues that he was either not actually under arrest at the time the sample was taken or that the arrest itself was unlawful. Vaughn asserts the State failed to initially establish a chain of custody and failed to establish that the blood samples actually belonged to Vaughn.

¶ 7. Finally, Vaughn contends that he established a clear break in the chain of custody regarding the blood sample, and that the blood evidence should have been excluded at trial. Vaughn seeks to have the trial court’s decision reversed or, in the alternative, to grant him a new trial.

¶ 8. First, the State argues that Vaughn is barred from appealing the denial of his motion to suppress because he failed to allege this assignment of error in his motion for JNOV or new trial. Alonso v. State, 838 So.2d 309, 313(¶10) (Miss.Ct.App.2002) (citing Seals v. State, 767 So.2d 261(¶ 6) (Miss.Ct.App.2000)). Notwithstanding the bar, however, the State contends that Officer Henley acted properly in ordering the blood test without a search warrant or consent. The State argues that Mississippi Code Annotated section 63-11-5(1) (Rev.2004) provides that consent is implied if a person operates a vehicle on the public roads of Mississippi and, as such, Officer Henley had authority to order the blood test. Additionally, the State argues Officer Henley properly complied with the law since he had both reasonable grounds and probable cause to believe Vaughn was under the influence of drugs or alcohol at the time of the accident. Further, the State denies Vaughn’s contention that he was not under arrest. The State contends that the arresting officers were conducting a search incident to lawful arrest when taking the sample, and further that exigent circumstances were present, necessitating taking the sample without a warrant. The State argues that nearly two hours had lapsed before Vaughn was transported to the hospital from the scene of the accident, thus creating exigent circumstances.

¶ 9. With regard to Vaughn’s second argument, the State contends that Vaughn failed to present evidence showing that the chain of custody of the evidence had been broken. The State further asserts that it is not required to call every single person as a witness who handled the evidence to establish a proper chain of custody. Additionally, the State points out that Vaughn has failed to present evidence that the blood sample was altered or tampered with during the testing process.

STANDARD OF REVIEW

¶ 10. “When reviewing a trial court’s ruling on a motion to suppress, we must assess whether substantial credible evidence supports the trial court’s finding considering the totality of the circumstances.” Shaw v. State, 938 So.2d 853, 859(¶ 15) (Miss.Ct.App.2005) (citing Price v. State, 752 So.2d 1070,1073(11 9) (Miss.Ct.App.1999)). “The standard of review for the admission or suppression of evidence in Mississippi is abuse of discretion.” Troupe v. McAuley, 955 So.2d 848, 855(¶ 19) (Miss.2007) (citing Poole v. Avara, 908 So.2d 716, 721(¶ 8) (Miss.2005)).

¶ 11. This Court reviews a trial court’s denial of a JNOV or a motion for new trial under an abuse of discretion standard. Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005) (citing Howell v. State, 860 So.2d 704, 764 (¶212) (Miss.2003)). When looking at the denial of a JNOV, the court looks to the sufficiency of the evidence at trial. Dilworth, 909 So.2d at 736(¶ 17). “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that 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.’ ” White v. State, 958 So.2d 241, 245(¶12) (Miss.Ct.App.2007) (citing Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005)). Further, the evidence should be viewed in the light most favorable to the non-moving party. Bush, 895 So.2d at 843(¶ 17).

¶ 12. With regard to the motion for a new trial, the court will look to the weight of the evidence presented at trial. White, 958 So.2d at 246(¶ 13). This Court will only overrule the trial judge’s denial of a motion for new trial “when [the verdict] is so contrary to the overwhelming weight of the evidence that to allow it to stand would. sanction an unconscionable injustice.” Id.

DISCUSSION

I. WHETHER THE TRIAL COURT’S DENIAL OF THE MOTION TO SUPPRESS THE BLOOD TEST AND RESULTS VIOLATED VAUGHN’S FOURTH AMENDMENT RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE

¶ 13. The trial court admitted Vaughn’s blood sample and the results of the toxicology reports into evidence, finding that there was sufficient probable cause at the time of the arrest to order the taking of a blood sample. “[B]lood searches based upon probable cause are legal.” Wilkerson v. State, 731 So.2d 1173, 1177(¶ 13) (Miss.1999). Our standard of review for a trial court’s finding of probable cause is abuse of discretion. Holloman v. State, 820 So.2d 52, 55(¶ 11) (Miss.Ct.App.2002).

¶ 14. The lower court noted many factors which amounted to sufficient probable cause. Officer Henley testified that Vaughn was non-responsive, incoherent, and his eyes were dilated when the officer arrived at the scene of the accident. Officer Henley further testified he detected the smell of marijuana and possibly alcohol on Vaughn and in his car. Further, Henley testified he observed a bottle of alcohol in Vaughn’s car. In addition, witnesses to the accident relayed information regarding how the accident occurred and about Vaughn’s behavior immediately after the accident.

¶ 15. Vaughn relies on this Court’s ruling in Shaw v. State, 938 So.2d 853 (Miss.Ct.App.2005) in challenging the admission of the blood test and results at trial. Vaughn argues that there was a violation of his Fourth Amendment rights of unreasonable search and seizure because he claims there were no exigent circumstances. However, the case sub judice is distinguishable from Shaw in several ways. First, the blood drawn from the suspect in Shaw was done pursuant to an invalid search warrant which contained false statements made by the acquiring officer. Id. at 857-58 (¶ 11). The officer in Shaw claimed falsely in the affidavit that the suspect refused to submit to a breath analysis test and that the suspect was under arrest prior to the warrant being issued. Id. Additionally, the officer in Shaw testified at trial that the suspect was actually not under arrest before the blood test was performed. Id. at 858(¶ 12). According to the record in the case sub judice, Vaughn was arrested and handcuffed at the scene of the accident before the blood test was ordered or administered. Per contra, the police in Shaw did not develop probable cause until after the blood test was ordered. Id. In Shaw, this Court noted that “[o]ur supreme court has held that probable cause developed by an officer subsequent to an unlawful search and seizure of the defendant’s blood could not retroactively cure such prior violation.” Id. at 858(¶ 13) (citing McDuff v. State, 763 So.2d 850, 856(¶ 18) (Miss.2000)).

¶ 16. The trial court’s ruling that there existed sufficient probable cause to admit Vaughn’s blood test is supported by the record. In McDuffv. State, 763 So.2d 850, 856(¶ 19) (Miss.2000), the court held that “the drawing of the two (2) tubes of ... blood, done specifically at the request of law enforcement, was improper ■ because this was done without probable cause, a warrant or consent, and was not incident to a lawful arrest.” The police officers in McDuff did not see or speak to the suspect at the time of the accident, or before the blood test was ordered. Id. at 852 (¶ 4-5). The court found probable cause did not exist prior to the blood test and the suspect was not placed under arrest at the time of the test. Id. at 856(¶.19). Therefore, the court found probable cause, was developed after the test was administered, and the subsequent probable cause finding was too late to correct the unlawful search and seizure of the suspect’s blood. Id. at 856(¶18).

¶ 17. Additionally, we agree with the State’s contention that the blood test was admissible under the search incident to the lawful arrest exception to the warrant requirement. Id. at 856(¶ 19). Here, the record clearly reflects that police had developed sufficient information to believe Vaughn had committed a crime at the time of the accident, and his arrest was proper. Testimony at trial revealed that Vaughn was handcuffed and under arrest shortly after the officers arrived at the: accident scene. Vaughn was properly under arrest, since he was not free to leave the accident, and police had probable cause to believe he was under the influence of drugs or alcohol due to his behavior at the scene.

¶ 18. In addition to having probable cause, the officers were working under exigent circumstances. “A warrant-less search is permissible in certain exigent circumstances if it can be shown that grounds existed to conduct the search that, had time permitted, would have reasonably satisfied a disinterested magistrate that a warrant should properly issue.” Holloman v. State, 820 So.2d 52, 55(1110) (Miss.Ct.App.2002) (citing Sanders v. State, 678 So.2d 663, 667 (Miss.1996)). Vaughn’s blood needed to be tested quickly in order to preserve the evidence of drugs or alcohol in his system. Id. Therefore, exigent circumstances existed to permit a search.

¶ 19. We find there was sufficient evidence to lead Officer Henley to suspect that Vaughn was under the influence of drugs or alcohol at the time of the accident and arrest. This Court cannot find that the trial court abused its discretion in admitting the "blood test. and results into evidence. Nor can this Court find that the trial court violated Vaughn’s Fourth Amendment rights by admitting the blood test into evidence. The trial court’s refusal to grant a directed verdict or a motion for a new trial was not error.

II. WHETHER THE TRIAL COURT ERRED IN FINDING NO BREAK IN THE CHAIN OF CUSTODY OCCURRED AND FINDING THAT THERE WAS NO TAMPERING OR SUBSTITUTION OF THE BLOOD TEST EVIDENCE

-¶ 20. Vaughn argues that the State erred in failing to introduce testimony from everyone involved in testing the blood evidence at the Alameda, California testing site. However, “[establishing a proper chain of custody ... has ‘never required the proponent to produce every person who handled the object, nor to account for every moment of every day.’ ” Pittman v. State, 904 So.2d 1185, 1191(¶ 11) (Miss.Ct.App.2004) (quoting Butler v. State, 592 So.2d 983, 985 (Miss.1991)). Vaughn’s assertions that a break in the chain of custody occurred or that there was evidence of tampering are without merit. A trial court is given great discretion when determining whether the State has established a proper evidentiary chain of custody. Pittman 904 So.2d at 1191(1111) (citing Morris v. State, 436 So.2d 1381,1388 (Miss.1983)). Vaughn has the burden of proof to establish a break by showing that “there is an indication or reasonable inference of probable tampering with the evidence or substitution of the evidence.” Ellis v. State, 934 So.2d 1000, 1005(¶ 20) (Miss.2006).

¶ 21. The State produced testimony from Officer Henley, who witnessed the blood being taken from Vaughn. Officer Henley additionally testified he handed the vials of blood to Officer Lewis, who placed them in a sealed evidence bag. Officer Henley then testified he took the evidence to the Mississippi Crime Lab, where it was given to John Stevenson, a Crime Lab employee, who entered information regarding the sample in the computer system. Stevenson performed testing on the blood and sent the blood to National Medical Laboratory for further testing. The State produced evidence from National Medical Laboratory, accounting for all persons who handled or tested the blood at their California facility. From the testimony reviewed in the record, there is sufficient testimony from individuals who handled the sample to establish a chain of custody. Further, Vaughn points to no evidence which would show probable tampering or substitution of evidence. Vaughn has offered no proof that anything irregular occurred with the blood sample. We cannot find that the trial court committed error in failing to grant Vaughn a directed verdict or a new trial based on the admission of the blood test into evidence. This Court finds no error in the admission of the evidence against Vaughn.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY OF CONVICTION OF AGGRAVATED DRIVING UNDER THE INFLUENCE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIFTEEN YEARS TO SERVE, AND FIVE YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

KING, C.J., LEE, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR. IRVING, J., CONCURS IN PART AND IN RESULT.