text:
    Edward John GONZALES v. Anne Jaffe GONZALES.
    No. 06-CA-290.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2006.

      Clifford E. Cardone, Catherine Hilton, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and MARION F. EDWARDS.
   THOMAS F. DALEY, Judge.

12This matter involves a custody dispute over a ten year old boy, Brandon Gonzales. His parents, Edward Gonzales and Anne Gonzales, shared joint custody when they evacuated together to New Jersey, following Hurricane Katrina, in September 2005. Following a domestic dispute in New Jersey, Mr. Gonzales was granted custody by a New Jersey court. Ms. Gonzales returned to Louisiana and filed a Motion for Emergency Jurisdiction. The trial court ultimately decided that the New Jersey court has temporary emergency jurisdiction over this matter. Ms. Gonzales appealed that judgment to this Court, which agreed to hear this matter on an expedited basis. For the reasons that follow, we affirm.

FACTS:

The parties lived in Jefferson Parish Louisiana prior to their divorce. When the parties were divorced on August 1, 2000, the parties consented to shared physical custody of Brandon, with Brandon living primarily with Ms. Gonzales and Mr. Gonzales having Brandon every Wednesday overnight and every other | sweekend. At some point the parties reconciled, then on February 25, 2005, Mr. Gonzales filed a Rule to Modify the Consensual Custody Judgment. Mr. Gonzales alleged that Ms. Gonzales had resided with him until December 2004, at which time she stole money to support a drug addiction and engaged in a physical altercation with his mother, Carol Gonzales. A custody evaluator was appointed and drug testing was ordered. Ms. Gonzales filed responsive pleadings alleging that Mr. Gonzales abused drugs and alcohol. In May 2005, Mr. Gonzales withdrew his complaints against his former wife and the parties agreed on an interim Consent Judgment regarding custody. On July 7, 2005, prior to the custody evaluation being performed, the parties entered into a Consent Judgment whereby Brandon would remain in joint custody, with Ms. Gonzales being the domiciliary parent and Mr. Gonzales having overnight visitation every Wednesday and every other weekend. At the time the Consent Judgment was entered into, Ms. Gonzales was still living in Jefferson Parish, Louisiana.

On August 29, 2005 Hurricane Katrina struck Jefferson Parish and surrounding areas. Mr. Gonzales, Ms. Gonzales, and Brandon evacuated to Belmar, New Jersey where they lived together in a rental home. On October 13, 2005, Carol Gonzales arrived to stay with the parties. The next day a physical altercation occurred between the three adults. Ms. Gonzales contends that she was held down by Mr. Gonzales and repeatedly hit by Carol Gonzales, while Mr. Gonzales contends Ms. Gonzales was intoxicated and stabbed Carol Gonzales. This resulted in Ms. Gonzales being arrested and spending 14 days in jail. On October 15, 2005, a referral from Brandon’s elementary school was made to the New Jersey Child Protection Agency, the Division of Youth and Family Services who initiated an investigation.

|4On October 17, 2005, a temporary restraining order was issued against Ms. Gonzales arising from the events of October 14, 2005. On October 19, 2005, Mr. Gonzales appeared before the Superior Court of New Jersey, County of Monmouth seeking sole custody of Brandon. Mr. Gonzales alleged that since the parties left Louisiana, Ms. Gonzales had been abusing drugs and alcohol, had been physically abusing Brandon, and had left Brandon home alone. He also referenced the physical altercation of October 14, 2005 and stated that Ms. Gonzales was in jail. The New Jersey court, Judge Kilgallen presiding, found that it was in the best interest of the child for the New Jersey court to have jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, N.J.S.A. 2A: 34-53. Judge Kilgallen granted temporary sole custody to Mr. Gonzales and ordered that visits with Ms. Gonzales be suspended until further court order.

On October 24, 2005, a hearing was held by another judge in Monmouth County, who found that an act of domestic violence had occurred as alleged and entered a final restraining order against Ms. Gonzales. Ms. Gonzales was released from jail on a $60,000.00 bond.

On October 31, 2005, Ms. Gonzales filed her own affirmative applications in the New Jersey court alleging acts of violence had been committed on her by Mr. Gonzales and Carol Gonzales arising from the October 14, 2005 incident. On November 23, 2005, Ms. Gonzales filed a motion in New Jersey for immediate telephone visits with the child. This motion was denied. On December 2, 2005, Ms. Gonzales appeared in the New Jersey court through her counsel and sought to have the restraining order dismissed. This motion was denied. On December 8, 2005, Ms. Gonzales filed a motion in New Jersey seeking enforcement of the July 7, 2005 Consent Judgment. She alleged in this motion that the New Jersey court did not have jurisdiction to change the Louisiana Consent Judgment.

|fiOn December 14, 2005, Ms. Gonzales filed a Motion for an Emergency Jurisdiction Hearing in Louisiana. This motion was determined to be moot by 24th Judicial District Judge Robert Murphy. On December 28, 2005, Ms. Gonzales filed a Motion for Jurisdiction Hearing or alternatively a Motion for Emergency Status Conference. Judge Murphy denied this motion, stating that he had conferred with the New Jersey court and New Jersey has jurisdiction over actions occurring within its borders. Ms. Gonzales sought supervisory review from this Court. On February 3, 2006, this Court granted Ms. Gonzales’ Writ Application and remanded this matter to Judge Murphy to have an expedited hearing on jurisdiction and render written reasons for judgment following his ruling on jurisdiction.

Meanwhile in New Jersey, on January 20, 2006, Ms. Gonzales filed a fourth application seeking to modify custody or, in the alternative, to grant visitation. On February 6, 2006, Mr. Gonzales filed a motion seeking to dismiss Ms. Gonzales’ application and requested an order for Ms. Gonzales to submit to drug testing and submit to an evaluation. He requested all access by Ms. Gonzales to Brandon be suspended until the evaluation is completed.

On February 9, 2006, a hearing was held via telephone conference between Judge Murphy, Judge Kilgallen, Mr. Gonzales’ attorneys, Ms. Abby in New Jersey and Ms. Chachere in Jefferson Parish, and Ms. Gonzales’ attorneys, Mr. Fellenz in New Jersey and Ms. Hilton in Jefferson Parish. Ms. Abby explained that while Louisiana operates under the Uniform Child Custody Jurisdiction Act (UCCJA), New Jersey operates under the Uniform Child Custody Jurisdiction and Enforcement Act (UC-CJEA). Ms. Abby argued that since both parties had left Louisiana at the time the initial motion was filed by Mr. Gonzales in New Jersey, there was an independent basis for jurisdiction in New Jersey. She further argued | fithat under UCCJEA, the court looks at where the parties are located when the initial application for change of custody is filed. Since the application for change of custody was filed on October 19, 2005, she contends there is no question that New Jersey had jurisdiction. She further argued that if the court looked at the convenience of the parties, New Jersey is more appropriate because the child has been interviewed by the Division of Youth and Family Services (DYFS) in New Jersey, he is seeing a therapist in New Jersey, and his latest school records are located in New Jersey. Ms. Abby pointed out that if the Louisiana court were to find jurisdiction was proper in New Jersey, Ms. Gonzales would still be able to present evidence in New Jersey.

Ms. Hilton then argued that the DYFS investigation has determined that the allegations were unfounded, and concluded that no services are needed at that time. Ms. Hilton contends that under UCCJA the court must look to the home state of the child. She explained that the parties, including the child, temporarily evacuated to New Jersey and intended to return to Louisiana where the child has lived his entire life. She contends Louisiana is the home state because it is where the initial custody determination was entered and that Mr. Gonzales should not be allowed to take advantage of the emergency situation presented by Hurricane Katrina to change a consent custody agreement. Next she argued the court must look to the significant contacts with Louisiana. She contends most of the child’s school and medical records are in Louisiana. She also points out that one parent and three grandparents are in Louisiana. Ms. Hilton further argued that the initial emergency that existed in October 2005, when pleadings were initially filed in New Jersey, no longer exists. Courts and schools are now open in Louisiana and the mother has found another place to live in Louisiana. Mr. Fellenz added that the emergency | jurisdiction is allowed only when the parties were unable to go to Louisiana to seek relief.

Judge Kilgallen made numerous comments during the hearing. She stated there was no question that she had emergency jurisdiction in October 2005 when the father presented his application and the mother was in jail, explaining that she had to issue the custody order and restraining order to make sure the child was safe. She further stated that the DYFS letter merely stated that the child was safe and not in need of care at that time and did not state that the abuse did not occur. Judge Kilgallen stated that she would welcome Ms. Gonzales to come to New Jersey and undergo drug and alcohol screening so that a reunification could be facilitated between Ms. Gonzales and her son. Judge Killegan indicated that it was in the best interest of the child for jurisdiction to continue in New Jersey since the investigation into the actions of Ms. Gonzales was being conducted there and the child’s teachers and therapists were in New Jersey.

At the conclusion of the hearing, Judge Murphy took the matter under advisement. He ordered the parties to submit memoranda as to why Louisiana has jurisdiction over this matter. On March 9, 2006, Judge Murphy entered judgment granting temporary emergency jurisdiction over this matter to New Jersey for one year from the signing of the judgment. In so ruling, Judge Murphy found that the best interest of the child was to continue the proceedings in New Jersey where the criminal charges are being investigated and where the evidence regarding the allegations is available. Judge Murphy concluded that New Jersey has the more significant connection with the facts to resolve the allegations of violence, child abuse, and drug/alcohol abuse central to the best interest of the child. Judge Murphy explicitly rejected Ms. Gonzales home state argument finding the best | interest of the child is the standard to be used in conducting a comparative determination of two jurisdictions. This timely appeal followed.

LAW AND DISCUSSION:

On appeal, Ms. Gonzales makes numerous complaints about the proceedings and rulings made in New Jersey. However, she is appealing a judgment that solely determined jurisdiction. Therefore, this discussion will be limited to whether or not the trial court correctly granted temporary emergency jurisdiction to the New Jersey court.

The UCCJA has been adopted by the majority of states and is codified in Louisiana as the Uniform Child Custody Jurisdiction Law (UCCJL) in LSA-R.S. 13:1700 et seq. The primary purpose of the UCCJA is to avoid competition among states for jurisdiction over a custody dispute and to promote resolution of custody disputes in the forum most likely to have the greatest amount of relevant information about the case. State ex rel. D.R.P., 38,200 (La.App. 2 Cir. 12/10/03), 862 So.2d 1073. The basis for determining jurisdiction under UCCJA are: (1) the child’s home state, (2) the best interest of the child based on significant connections with this state and substantial evidence concerning the child’s present or future care, protection, training, and personal relationships, (3) whether there exists an emergency to protect the child, and (4) when no other state has jurisdiction or has declined jurisdiction. R.S. 13:1702(A). Although the child’s presence in the forum state is desirable, the child’s presence alone does not confer jurisdiction. R.S. 13:1702(B).

UCCJA does not require deference to the child’s home state in every case. Stelluto v. Stelluto, 2005-0074 (La.6/29/05), 914 So.2d 34. The choice of the best forum to hear custody disputes under UCCJA focuses on the strength of | flConneetions between the child and the competing states. Id. This may result in there being concurrent jurisdiction in two states under the home state and significant connection standards. Where there is concurrent jurisdiction, the trial court must determine which court will serve the best interest of the child. Id. The determination by the trial court of which jurisdiction will serve the best interest of the child will not be disturbed absent an abuse of discretion. Id.

Ms. Gonzales contends the trial court erred in granting temporary emergency jurisdiction to the New Jersey court when Louisiana has been Brandon’s home state since birth and Louisiana courts have always ruled on custody issues involving Brandon prior to the evacuation. We agree with Ms. Gonzales that at the time the October 2005 custody decree was rendered by the New Jersey court, Louisiana was Brandon’s home state under UCCJA. However, we reject her argument that the home state has sole jurisdiction. UCCJA does not require that there be jurisdiction in home state in every case. Rather, an analysis must be performed to determine on which state to confer jurisdiction to serve the best interest of the child.

In the instant case, Mr. Gonzales alleged that he became aware of the extent of Ms. Gonzales’ substance abuse and abuse/neglect of Brandon after spending six weeks with her due to the joint evacuation. While the record indicates that allegations of substance abuse have been made by both parties against the other party throughout the custody dispute, there had never been an evaluation to determine the legitimacy of these allegations. It was only after Ms. Gonzales was arrested in New Jersey and a report of possible abuse/neglect was made in New Jersey that an investigation was begun to determine the legitimacy of the substance abuse and physical abuse allegations. While the DFYS made the determination that their assistance was not needed at the time of the investigation, because the hnalleged abuser, Ms. Gonzales, had been restrained from contact with Brandon, there has been no determination as to whether Brandon had been abused. The record indicates that Brandon has been attending therapy sessions with a family therapist to assist in his adjustment to the change of custody. These sessions may also assist in determining whether abuse occurred. Judge Kilgallen has requested that Ms. Gonzales submit to an evaluation for substance abuse to help facilitate a reunification with her son. Thus, although there is no dispute that Brandon has lived in Louisiana the vast majority of his life, the investigation as to allegations of abuse and into the criminal charges filed by and against Ms. Gonzales are taking place in New Jersey, making the majority of the evidence available in New Jersey, rather than in Louisiana. A custody evaluation was never conducted in Louisiana because the parties entered into a Consent Judgment prior to the evaluation being done. Based on all of the evidence presented to this Court, we agree with the trial court that the best interest of the child will be served by conferring temporary emergency jurisdiction on the New Jersey court because the majority of the evidence regarding his custody, present and future care, is in New Jersey.

We disagree with Ms. Gonzales’ contention that the trial court made a best interest of the child determination on the basis of hearsay documents and without Ms. Gonzales being able to cross-examine any witnesses. The best interest of the child determination was made based on the substantial connection to New Jersey regarding the availability of evidence to determine the child’s custody, present and future care. Ms. Gonzales is able to submit whatever evidence she deems necessary to assist in the modification of the custody determination to the New Jersey court. There has been no determination as to whether or not Ms. Gonzales Uabused and/or neglected her son. Likewise, there has been no determination as to whether Ms. Gonzales abused drugs and alcohol. Rather, a custody order was entered based on Ms. Gonzales being arrested and charged with battery. The merits of these charges must be resolved in New Jersey and will have a bearing as to the next custody order rendered by the New Jersey court. Ms. Gonzales is free to retain another therapist in New Jersey or to ask the New Jersey court to appoint another therapist to evaluate Brandon and make recommendations. Further, Ms. Gonzales is free to ask for a custody evaluation to be conducted in New Jersey. She will be able to present any and all evidence to the New Jersey court that she would have been able to present to a Louisiana court.

CONCLUSION:

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . We note that there have been thousands of children displaced as a result of Hurricane Katrina and this opinion is in no way intended to hold that the courts in the states where they have evacuated have jurisdiction over their custody based solely on the fact that they evacuated from Louisiana.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    CBD DOCUSOURCE, INC. v. Stephanie Lee FRANKS.
    No. 06-CA-167.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2006.
    George B. Jurgens, III, James D. Ber-caw, King, LeBlanc & Bland, P.L.L.C., New Orleans, Louisiana, for Plaintiff/Appellant, CBD Docusource, Inc.

      Thomas J. McGoey, II, Jason R. Johan-son, Liskow & Lewis, APLC, New Orleans, Louisiana, for Defendant/Appellee, Stephanie Lee Franks.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   SUSAN M. CHEHARDY, Judge.

pThis is an appeal from the trial court’s denial of a request for a preliminary injunction to enforce a non-competition agreement. We affirm.

FACTS

The plaintiff is CBD Docusource, Inc (hereafter “Docusource”). Docusource provides litigation support services to lawyers, law firms and litigants. On July 2, 2001, Docusource hired the defendant, Stephanie Lee Franks, as an apprentice litigation support consultant.

On the date of her hiring, Franks signed non-competition agreement that prohibited her from engaging in any way, directly or indirectly (other than for the benefit of Docusource) in the litigation support sales and service business within a defined geographic area for two years from the date of the agreement.

The agreement defined the “Restricted Activity” as “litigation support sales and service as that term is generally understood within the Restricted Area, including but not limited to litigation consultation, information management, document management, computer database, software design, instruction, operation or management as well as the sale or provision of services in any way connected therewith.”

|sThe agreement defined the “Restricted Area” as 29 specified Louisiana parishes.

During the initial two-year period, Franks underwent training in the field of litigation support sales and service. At the end of the period, Franks signed another two-year non-competition agreement and continued working for Docusource. At the end of the second two-year period— specifically, on July 13, 2005 — Franks signed a third two-year non-competition agreement on the same terms, which bore an effective date of July 1, 2005. The language was substantially the same as the language in the first and second agreement.

On August 29, 2005 Hurricane Katrina struck the greater New Orleans metropolitan area, affecting the operations of Docu-source in New Orleans. Connie Nichols, a part-owner of Docusource, spoke to Franks by cellular phone as Nichols was evacuating New Orleans a few days after the storm. She told Franks the future of the company was unknown and Nichols was planning to stay in another city until things settled down. When Franks expressed concern about her job, Nichols recommended that she apply for unemployment benefits.

Several weeks later, Docusource management commenced efforts to contact the company’s employees, including Franks, but Franks did not return numerous phone calls, e-mails, and text-messages from Do-cusource.

In early October 2005, Doeusource management learned that Franks was setting up a business to provide litigation support services. In December 2005 Doeusource filed this lawsuit.

|4In its petition Doeusource sought a temporary restraining order to prohibit Franks from the performance in the Restricted Area (other than for the benefit of Doeusource) of litigation support sales and service business, litigation consultation, information and document management, and/or any other breach of the non-competition agreement. Doeusource prayed for issuance of preliminary and final injunctions in the form and substance of the TRO, as well as judgment in its favor for damages, pre- and post-judgment interest, and costs.

Franks filed an answer incorporating a reconventional demand, in which she stated as follows: She was employed by Docu-souree from January 2001 until the end of August 2005. Under the terms of her employment, Doeusource paid her a base salary and commissions for her services. Although Doeusource terminated her employment at the beginning of September 2005, as of the filing of her reconventional demand on January 3, 2006, Doeusource had failed to pay her all amounts due her, including wages, commissions, accrued unused vacation pay, and benefits earned prior to termination of her employment, despite her demand. Doeusource also had failed to remit to her the funds in her retirement plan account. Franks sought recovery of all amounts due under the terms of her employment, plus penalties of 90 days’ wages and attorneys fees, as provided in La.R.S. 23:631. She also alleged a claim under La.C.C.P. art. 3608 for wrongful issuance of a temporary restraining order and a claim for malicious prosecution.

The trial court issued a temporary restraining order of limited scope on December 21, 2005, directing, “Counsel for Ms. Franks will instruct her not to solicit Do-cusource customers between 12/21/05 and 1/3/06.” The court set a hearing on the preliminary injunction request for January 3, 2006.

At the hearing, Franks opposed the injunction with two main arguments. First, she asserted that the geographic restriction in the non-competition agreement | Sis impermissibly overbroad, in that Docu-source does business in less than half of the 29 named parishes. She asserted, further, that the agreement cannot be reformed because it does not include a sever-ability provision. Second, she argued that Doeusource never provided the consideration it used to induce Franks to sign the agreement — specifically, training to become a Certified Trainer in the use of Summation software.

At the hearing, both sides presented testimony. On January 6, 2006, the trial rendered judgment denying the request for preliminary injunction.

In written reasons for judgment, the court found that “the conduct of Ms. Franks was of the nature prohibited by the non-competition agreement.” The court further found that Doeusource does not do business in at least 10 of the 29 parishes included in the Restricted Area in the non-competition agreement. The court agreed with Franks’ argument that the geographical limitations of the agreement are overbroad, citing La.R.S. 23:921, which permits noncompetition agreements for up to two years within a specified parish or parishes so long as the employer carries on a like business there. The court found that the entire agreement is null and void, due to lack of a severability clause permitting reformation of the contract to limit its application to parishes where Do-cusource is conducting business. Based on that finding, the court held that Docu-source failed to make a prima facie showing that it would prevail on the merits. Hence, the court denied the relief sought.

Docusource has appealed. On appeal Docusource contends, first, that the district court erred in voiding the entire non-competition agreement because Docu-source does not conduct business in every parish comprising the Restricted Area. Second, Docusource contends the court erred in holding that Docusource’s solicitation of clients and marketing its legal support services to attorneys in all of |fithe state’s parishes did not satisfy the requirement of “carrying on a like business therein” set out in La.R.S. 23:921(C). Docu-source asserts both these are legal errors that require reversal of the judgment.

La.R.S. 23:921 governs non-competition agreements in Louisiana. It provides, in pertinent part:

A. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.
* * *
C. Any person ..., who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment.

Louisiana’s strong public policy restricting these types of agreements is based upon an underlying state desire to prevent an individual from contractually depriving himself of the ability to support himself and consequently becoming a public burden. SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So.2d 294, 298. Because such covenants are in derogation of the common right, they must be strictly construed against the party seeking their enforcement. Id.

In Class Action Claim Services, L.L.C. v. Clark, 04-591 (La.App. 5 Cir. 12/14/04), 892 So.2d 595, 600, this court held a clause containing geographic limitations was sev-erable from the remainder of the non-compete agreement. We stated: “Our review of the jurisprudence indicates that when a non-compete clause is overbroad in its geographical boundaries, the Court should delete the overbroad portions and enforce the remainder of the geographic restriction provision.”

|7Our opinion in Class Action Claim Services, supra, did not mention whether the contract in that case contained a severability clause, a point that has been raised by Docusource to support its argument that the lack of a severability clause in the contract before us should not make the entire agreement null. However, two members of the panel now sitting on this case also were on the panel in that case. We can state categorically that the agreement in Class Action Claim Services did, in fact, contain a severability clause — -two, in fact.

Docusource relies on La. R.S. 23:921(A)(1), which states: “Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade or business of any kind, except as provided in this Section, shall be null and void.” [Emphasis added.] According to Docusource, the phrases “or provision thereof’ is a built-in severability provision that permits severance of overbroad clauses from the remainder of a non-competition agreement.

We acknowledge the cases cited by Docusource for the proposition that La. R.S. 23:921 itself contains a severability clause that permits reformation of a non-competition agreement that is overbroad. However, we interpret that statutory language differently, bearing in mind the public policy against non-competition agreements. In our view, the phrase “or provision thereof’ refers to a non-competition provision within a contract that deals with other matters, such as an overall employment agreement. The phrase allows for nullification of the offending non-competition provision without voiding the entire employment agreement. However, where the entire agreement is concerned with non-competition, like the agreement in this case, we believe one portion cannot be ^severed from the remainder absent a specific severability clause. Accordingly, the trial court did not err in holding that the entire non-competition agreement is null and void.

Having concluded that the agreement is void, it is unnecessary for us to address Docusource’s argument that its solicitation of business and advertising state-wide constituted “carrying on business” in the parishes in which it has not specifically had clients.

For the foregoing reasons, the judgment is affirmed. Costs of the appeal are assessed against the appellant, Docusource, Inc.

AFFIRMED.

      . Paragraph 1 defines the geographic scope of the Agreement as "the following Parishes (the 'Restricted Area’), which the parties agree is the reasonable trade territory of Docusource: Orleans, Jefferson, St. Bernard, Plaquemines, Lafourche, St. Charles, St. John the Baptist, St. James, Ascension, Assumption, Terre-bonne, Iberville, West Baton Rouge, East Baton Rouge, Point Coupee, East Feliciana, West Feliciana, St. Helena, Livingston, Tangi-pahoa, St. Tammany, Washington, Lafayette, Caddo, Bossier, Rapides, Ouachita, Calcasieu and St. Landry.”

      . Specifically, Judges Daley and Chehardy were members of the panel in Class Action Claim Services, and Judge Daley was author of the opinion.

      . In Henderson Implement Co., Inc. v. Langley, 97-1197 (La.App. 3 Cir. 2/4/98), 707 So.2d 482, 486, the third circuit cited the phrase "or provision thereof” and stated, "Thus, the statute clearly allows for reformation of a provision of a non-competition agreement not in compliance with the statute.” See also, Moore's Pump and Supply, Inc. v. Laneaux, 98-1049 (La.App. 3 Cir. 2/3/99), 727 So.2d 695.


author: CHANDLER, J.,

text:
    Ricky Lee LONG a/k/a Leon Long, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01884-COA.
    Court of Appeals of Mississippi.
    March 21, 2006.
    Rehearing Denied July 25, 2006.

      John Carl Helmert, Clarksdale, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Ricky Lee Long was convicted of burglary and was sentenced to a term of twenty-five years in the custody of the Mississippi Department of Corrections as an habitual offender. Long appeals, raising the following issues:

I. WHETHER THE TRIAL COURT ERRED BY ALLOWING A WITNESS TO BE IMPEACHED WITH A STATEMENT MADE PRIOR TO HIS TESTIMONY
II. WHETHER THE TRIAL COURT ERRED BY NOT GRANTING A DIRECTED VERDICT, A PEREMPTORY INSTRUCTION OR A JUDGMENT NOTWITHSTANDING THE VERDICT
III. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING A NEW TRIAL
IV. WHETHER THE TRIAL COURT ERRED IN NOT INSTRUCTING THE JURY THAT THE CASE WAS BASED ON CIRCUMSTANTIAL EVIDENCE
V. WHETHER LONG WAS PREJUDICED BY INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 2. We find no error and affirm.

FACTS

¶ 3. On August 20, 2002, Billy Scott was walking near his home in Lee County when he saw a strange vehicle at his neighbor’s, Bryan Henderson, house. The car was ten yards from Henderson’s driveway. Scott saw three people at the car; two of them were loading items into the car. When Scott approached, the three men got into the car and left at a high rate of speed. Scott recognized Dustin Wright as one of the three individuals and gave police a description of the other two.

¶ 4. At trial, Scott testified that Wright sometimes lived with his grandfather, who lived approximately seventy-five yards from the Henderson home. Scott identified Long as one of the people he saw at Henderson’s house. Scott gave a description of the car and a partial license plate number. Henderson testified that several items were taken from his home, including a television, some stereo equipment, a camcorder, and several pieces of jewelry. Most of these items were recovered from Long’s apartment.

¶ 5. At trial, Long testified that he bought the items from Wright. Long admitted that he was near the scene, but he claimed that he was at Wright’s grandfather’s house, which was seventy-five yards away. Long denied any involvement in the burglary. He specifically denied being in the Henderson home or taking anything from the Henderson home.

¶ 6. Wright was called to testify by the State. His trial testimony differed from his statement to the police. Wright claimed at trial that he alone had burglarized the Henderson home. He also claimed that the stolen items were hidden down the street at his grandfather’s home/business. Wright testified that he called Long, whom he had never met, and offered to sell him the items taken in the burglary. The State then sought to impeach Wright with his prior statement. The court allowed the impeachment testimony, after finding that his trial testimony was not consistent with his prior statement. The jury found Long guilty of burglary.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED BY ALLOWING A WITNESS TO BE IMPEACHED WITH A STATEMENT MADE PRIOR TO HIS TESTIMONY

¶ 7. Prior to trial, Wright gave a verbal statement to Officer Truman Carter of the Lee County Sheriffs Department. Wright signed the statement which was not taken under oath. Long argues that Wright’s testimony at trial was not inconsistent with the prior statement. Therefore, it was impermissible for Wright to be impeached with the statement.

¶ 8. Under Mississippi Rules of Evidence Rule 613(b), a prior statement of a witness must be inconsistent with trial testimony to be admissible. Everett v. State, 835 So.2d 118, 122(¶ 11) (Miss.Ct.App.2003). Hearsay testimony of a prior inconsistent statement under Mississippi Rules of Evidence Rule 613(b) is admissible into evidence only if a foundation is laid in which the witness is given an opportunity to explain or deny the statement. Flowers v. State, 842 So.2d 531, 551 (Miss.2003). It is generally held that a prior statement is inconsistent if under any rational theory its introduction might lead to a conclusion different from the witness’s testimony. Id.

9. In the statement to Officer Truman, Wright stated that Long went into “the house.” At trial, Wright testified that Long went into the house where Wright was staying with his grandfather. The trial court having heard the testimony and read the statement, did not accept this interpretation. The court stated, “Counsel, I don’t want to quibble over what it says, but it seems clear to me that the house they entered is Bryan Henderson’s house.”

¶ 10. Long argues that Wright’s prior statement was hearsay. However, hearsay is admissible if the statement was not admitted for the truth of the matter, but only to impeach Wright. Hall v. State, 691 So.2d 415, 420 (Miss.1997). The trial court gave an instruction to the jury that the statement could not be used as direct evidence but could only be considered for purposes of impeachment. Jurors are presumed to follow the instructions of the court. Grayson v. State, 879 So.2d 1008, 1020 (¶ 32) (Miss.2004). “To presume otherwise would be to render the jury system inoperable.” Id. (citing Johnson v. State, 475 So.2d 1136, 1142 (Miss.1985)). Therefore, we do not find that the trial court erred in allowing Wright’s statement to be used for the limited purpose of impeachment.

II. WHETHER THE TRIAL COURT ERRED BY NOT GRANTING A DIRECTED VERDICT, A PEREMPTORY INSTRUCTION OR A JUDGMENT NOTWITHSTANDING THE VERDICT OF THE JURY

¶ 11. Motion’s for directed verdict, a peremptory instruction, and a judgment notwithstanding the verdict (JNOV) are all viewed by the same standard. Hawthorne v. State, 835 So.2d 14, 21 (¶ 31) (Miss.2003). These motions all challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The standard of review is that all evidence supporting the guilty verdict is accepted as true and the State must be given the benefit of all reasonable inferences that can be reasonably drawn from the evidence. Bell v. State, 910 So.2d 640, 646(¶ 16) (Miss.Ct.App.2005).

¶ 12. Long contends that the only proof of his involvement in the burglary is his possession of some of the items stolen and the testimony of one eyewitness who did not see anyone enter the Henderson home. However, Long correctly notes that mere possession of stolen items is equally probative of guilt and innocence of a particular crime. Shields v. State, 702 So.2d 380, 382 (Miss.1997). This contention alone is sufficient to support the guilty verdict.

¶ 13. Long again rehashes his argument that the prior inconsistent statement of Wright should not have been allowed in this case because the statement implied that Long was at Henderson’s home. As previously stated, the judge instructed the jury that the statement was not to be used as direct evidence. Long’s argument fails to consider Scott’s testimony regarding the same matter. Scott testified that Long was one of the three individuals who were loading the stolen items into a car at the Henderson home and who fled at a high rate of speed when they spotted him. This is direct evidence that Long was not at his grandfather’s home but rather, was actively participating in the burglary. Also, the evidence is probative of guilt. “Evidence of unexplained flight is admissible as consciousness of guilt.” Miles v. State, 864 So.2d 963, 967(¶ 15) (Miss.Ct.App.2003). The fact that Long was not at his grandfather’s house would have been admitted through Scott’s testimony, regardless of Wright’s inconsistent statement. Therefore, this assignment of error is without merit because there was sufficient evidence to support the jury verdict.

III. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING A NEW TRIAL

¶ 14. In considering whether a new trial should be granted, the appellate court must consider all the evidence and determine whether the verdict is “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Sykes v. State, 749 So.2d 239, 242(¶ 7) (Miss.Ct.App.1999). If the Court so finds, then the guilty verdict must be reversed and a new trial ordered. Id.

¶ 15. Again, Long is arguing that the verdict was based primarily on the unsworn prior statement of Wright. As previously discussed, the statement was allowed for a limited purpose and the jury was instructed that it was not evidence against Long. Long conveniently ignores that there was testimony placing him at the scene of the robbery and in the car which sped away when an eyewitness was seen. Long was in possession of the stolen property, as he and Wright testified at trial. All the portions of the testimony which Long contends support his argument could just as easily have been rejected by the jury. It is the responsibility of the jury to resolve conflicts in testimony. “They may believe or disbelieve, accept or reject the utterances of any witness.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). Therefore, no unconscionable injustice has resulted and we reject this assignment of error.

IV. WHETHER THE TRIAL COURT ERRED IN NOT INSTRUCTING THE JURY THAT THE CASE WAS BASED ON CIRCUMSTANTIAL EVIDENCE

¶ 16. It is the contention of Long that this was a purely circumstantial evidence case and the jury should have been instructed on the burden of proof based on circumstantial evidence. As shown by the record and confessed by Long in his brief, no circumstantial evidence instruction was tendered to the court by Long’s trial counsel. Therefore this issue is not properly preserved and is procedurally barred on appeal. The courts have long held that a trial judge will not be put in error on a matter which was not presented to him for a decision. Milano v. State, 790 So.2d 179, 189 (¶ 47) (Miss.2001).

¶ 17. Even without the bar, this issue is without merit. A circumstantial evidence instruction is proper only when there is no direct evidence, such as eyewitness testimony. That is, the State’s case is not wholly circumstantial when there is a mix of direct and circumstantial evidence. Sheffield v. State, 749 So.2d 123, 126 (¶ 12)(Miss.1999). In this case, there was direct eyewitness evidence which put Long at the scene of the burglary placing items in a car. If a circumstantial evidence instruction had been tendered, it would have been error to grant the instruction. Therefore, this issue is procedurally barred and even if it were not so the error would also be without merit.

V. WHETHER LONG WAS PREJUDICED BY INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 18. A claim of ineffective assistance of counsel is analyzed under the standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Robinson v. State, 784 So.2d 966, 971(1110) (Miss.Ct.App.2001). In order to prevail, an appellant must show that the actions of counsel were deficient and that the outcome of the trial would have been different but for the deficiency. Id.

¶ 19. Long claims that counsel was ineffective for failing to request a circumstantial evidence jury instruction on the burden of proof. As noted in the previous assignment of error, a circumstantial evidence instruction would not have been proper under the facts of this case. The failure of trial counsel to request such an instruction was not error and is not grounds for a claim of ineffective assistance of counsel.

¶ 20. Long claims that counsel was ineffective for failing to object to the prior statement of Wright as hearsay. Similarly, the failure of counsel to object to the prior statement of Wright as hearsay was not error. As found in our previous discussion, the court properly allowed the former statement of Wright to. be used for impeachment and any objection as to hearsay by trial counsel would not have resulted in any change in the outcome.

¶ 21. In his final argument under this issue, Long argues that trial counsel should have requested a lesser-included offense instruction of receiving stolen property. However, this would have been inconsistent with Long’s theory of the case. His theory and defense were that the State did not prove its case, not that Long merely received stolen property. Therefore, this was a proper trial strategy, either all or nothing — guilty or acquittal. We conclude that Long has failed to show that his trial counsel was ineffective.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY OF CONVICTION OF BURGLARY AND SENTENCE OF TWENTY-FIVE YEARS AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO LEE COUNTY.

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


author: KING, C.J.,

text:
    Donald Jean FREI, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02323-COA.
    Court of Appeals of Mississippi.
    March 21, 2006.
    Rehearing Denied July 25, 2006.

      John Carl Helmert, Jr., Clarksdale, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   KING, C.J.,

for the Court.

¶ 1. Donald Jean Frei was indicted for sexual battery in Lee County on February 10, 2004. He was tried before a jury beginning August 9, 2004, which resulted in a mistrial. Frei was tried again before a jury beginning on November 9, 2004, resulting in his conviction. Frei was sentenced by the Lee County Circuit Court to thirty years incarceration, ten years suspended, and five years post-release supervision. Aggrieved by the trial judge’s decision, Frei asserts the following issues on appeal:

1. THE TRIAL COURT ERRED BY NOT STRIKING THE TESTIMONY OF C.D.F.;
2. TRIAL COURT ERRED BY ALLOWING THE HEARSAY TESTIMONY OF HEATHER ROBERTSON AND MELISSA RATLIFF;
3. THE TRIAL COURT ERRED BY ALLOWING ADMISSION OF FREI’S CONFESSION INTO EVIDENCE;
4. THE JURY’S VERDICT WAS AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE;
5. THE INDICTMENT WAS FATALLY DEFECTIVE.

Finding no error in the trial court’s decision, we affirm.

FACTS

¶2. On September 21, 2003, C.D.F., Frei’s three-year-old female relative, was visiting with Frei’s sister, Kristie Trimm, in Sulligent, Alabama. C.D.F. was still in diapers at the time. While cleaning C.D.F.’s bottom, Trimm noticed it was stretched and red. Trimm then reported her findings to the Lee County Sheriffs Department, and took C.D.F. to the hospital. Frei was arrested by the Lee County Sheriffs Department while at the hospital. While at the sheriffs department, Frei gave an oral confession that was transcribed by Terry Jones, an investigator with the Lee County Sheriffs Department. In his confession, Frei admitted to putting his penis in C.D.F’s mouth while rubbing and inserting his finger in her rectum.

¶ 3. Following Frei’s arrest, C.D.F. was interviewed by Melissa Ratliff, a forensic interviewer, and Heather Robertson, a social worker with the Department of Human Services (DHS). During these talks, C.D.F. stated that Frei inserted his “stinky finger” in her “coo coo” and “stuff,” and performed other acts on her with her clothes off. C.D.F. also testified to these matters before the court.

¶ 4. Before Frei’s first trial, the trial court held a pre-trial/suppression hearing on August 3 and 5, 2004. During that hearing, the judge decided to allow testimony from C.D.F., Ratliff, and Robertson, and to admit Frei’s confession into evidence. It is upon this evidence that Frei was convicted and appeals.

DISCUSSION

1. The trial court erred by not striking the testimony of C.D.F. upon proper motion.

¶ 5. Frei claims that the testimony of C.D.F. should have been excluded because she did not meet the competency standard. The determination of whether a child witness of tender years is competent to testify is a matter primarily left to the trial judge’s discretion. Bosarge v. State, 786 So.2d 426, 430(¶ 5) (Miss.Ct.App.2001). When making this determination, a judge should determine if a child (1) has the ability to perceive and remember events, (2)understands and answers questions intelligently, and (3) comprehends and accepts the importance of truthfulness. Id. In order for a party to prevail in seeking to exclude a witness’s testimony, that party must show that, at the time the court made its initial decision, it was apparent that the witness did not meet the criteria for testifying, not that the subsequent testimony was flawed, or that the initial determination was possibly erroneous. Williams v. State, 859 So.2d 1046, 1049(¶ 14) (Miss.Ct.App.2003).

¶ 6. C.D.F. was three years old at the time of the incident, but was four years old during the suppression hearing and both trials. When questioned by the court at the suppression hearing, C.D.F. remembered coming to the courthouse previously and meeting with the prosecutor. When asked what she was there to talk about, she answered correctly and competently. C.D.F. testified that Frei took her clothes off, and touched her “tootie” with his “stinky finger.” C.D.F. also testified that she knew what it meant to tell the truth, and that it was good to tell the truth. C.D.F. correctly told the court that it was a lie when asked if the prosecutor’s white shirt was red. Based on this testimony and her ability to answer questions before the court, according to Bosarge, C.D.F. was found competent to testify.

¶ 7. Frei argues that minor differences in C.D.F.’s testimony at the suppression hearing and trial, as well as C.D.F.’s occasional interjection of irrelevant personal experiences, establishes C.D.F.’s lack of competency as a witness. C.D.F.’s primary testimony about Frei appears to have remained the same. Nonetheless, the test for competency takes place when the court makes its initial decision. Id. (emphasis added). Variations in testimony are matters of weight and credibility which are for the jury to resolve. Robert v. State, 821 So.2d 812, 817(¶ 20) (Miss.2002). The trial judge conducted an appropriate competency hearing and was well within his discretion in finding C.D.F. competent to testify. Therefore, this issue is without merit.

2. Trial court erred by allowing the hearsay testimony of Heather Robertson and Melissa Ratliff

¶ 8. Next, Frei questions the admissibility of the testimonies of Heather Robertson and Melissa Ratliff. The Mississippi Rules of Evidence allow the admission of certain hearsay statements made by children of tender years to another if the statements contain “sufficient indicia of reliability.” M.R.E. 803(25). Frei argues that Robertson and Ratliffs testimonies should be excluded because they fail to contain sufficient indicia of reliability. This Court must let stand a trial judge’s findings of evidentiary or ultimate fact when substantial evidence in the record supports those findings, or when the findings are not clearly erroneous. Crowe v. Smith, 603 So.2d 301, 305 (Miss.1992) (citing Matter of Estate of Varvaris, 528 So.2d 800, 802 (Miss.1988)). In his on the record findings, the judge found that both Robertson and Ratliff were trained in using acceptable techniques in talking with children thought to have been sexually abused. He also found that Robertson and Ratliffs testimonies corroborated one another, and showed that C.D.F. was consistent in her statements to them. Finding that the relationship between C.D.F. and Robertson and Ratliff was indeed professional, the Court admitted Robertson and Ratliffs testimony. Finding no error in the judge’s findings, we find this issue is without merit.

S. Trial court erred by allowing admission of Frei’s confession into evidence;

4. Jury’s verdict was against the weight and sufficiency of the evidence.

¶ 9. Frei challenges the sufficiency of evidence twice in his brief. One challenge is based on Frei’s claim that the trial court erred in admitting his confession. The second is based on the standards of proof used for sufficiency and weight of the evidence. Since these two issues are interrelated, we will discuss them together.

a. Whether the confession should have been admitted

¶ 10. Frei first argues that his confession should not have been admitted because it was given involuntarily. In determining if a statement is voluntarily, knowingly, and intelligently given, the trial court must act as fact-finder, and this Court is very limited in its review of that decision. Forrest v. State, 782 So.2d 1260, 1267(¶ 19) (Miss.Ct.App.2001). The factual inquiry to be determined by the judge should be from the totality of the circumstances. Dancer v. State, 721 So.2d 583, 587(¶ 19) (Miss.1998). As long as the judge applies the correct legal standards, his fact-finding will not be overturned unless clearly erroneous or contrary to the weight of the evidence. Id. at 587(¶ 18).

¶ 11. Frei claims that his plea was involuntary because the confession was written by Investigator Jones. In the pretrial hearing, Frei denied ever making any of the statements to Jones. Frei also testified that Jones did not allow him to complete a statement Frei claimed he tried to add to the confession. Finally, Frei stated that he only signed the confession because of promises Jones and others made to him. Jones and three other officers who witnessed Frei’s interrogation also testified about Frei’s confession. All of the officers testified that the written confession was a correct statement of Frei’s voluntary verbal confession, that Frei voluntarily signed the waiver of rights, and that he was not promised anything in exchange for his confession. The judge considered Frei’s testimony as well as the officers’ testimony. In resolving the conflicting evidence, the court found that Frei’s statement was given voluntarily after being advised of his rights, and was not the result of threats, promises, coercion, or duress. When admission of a statement rests on conflicting evidence, and the trial court admits that statement into evidence, we generally must affirm. Morgan v. State, 681 So.2d 82, 87 (Miss.1996)(citing Alexander v. State, 610 So.2d 320, 326 (Miss.1992)). This claim is without merit.

b. Whether the confession had proper foundation

¶ 12. Frei next claims that the confession was entered without proper foundation. Frei claims that a defendant’s confession to his crime is not enough to sustain a conviction. Frei relies on Bullock v. State, 447 So.2d 1284, 1286 (Miss.1984), which states that the corpus delicti of a crime must be established before the State may introduce evidence of a confession. The corpus delicti is the body or substance of the crime. Cotton v. State, 675 So.2d 308, 313 (Miss.1996). Independent proof of the corpus delicti is needed beyond extrajudicial admissions or confessions to ensure that an innocent defendant does not get convicted of a crime he did not commit. Id. Corpus delicti need only be proven by a preponderance of the evidence, and the confession may be used to raise the proof beyond a reasonable doubt. Id.

¶ 13. In the case sub judice, there was an abundance of evidence present to prove the corpus delicti. C.D.F.’s testimony alone is sufficient to prove the corpus delicti. Mississippi case law clearly holds that the unsupported testimony of a victim of a sex crime is sufficient to support a guilty verdict. Winters v. State, 814 So.2d 184, 187(¶ 7) (Miss.Ct.App.2002). Therefore, it would certainly be enough to establish the corpus delicti. This claim is without merit.

c. Whether the jury verdict was against the weight and sufficiency of the evidence

¶ 14. Frei claims that the jury’s verdict was against the weight and sufficiency of the evidence. When reviewing a denial of a motion for 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 v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). On a motion for a new trial, the court sits as the thirteenth juror, and will only grant a new trial in exceptional cases in which the evidence preponderates heavily against the verdict. Id. The State put on an abundance of evidence supporting Frei’s conviction. C.D.F.’s testimony, the testimony of Robertson and Ratliff, as well as Frei’s own confession served as enough evidence for the jury to weigh in favor of Frei’s conviction. Thus, this claim is without merit.

¶ 15. The critical inquiry on the issue of legal sufficiency 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[.]” Bush, 895 at 843(1116)(citing Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Frei claims that the State failed to prove that he placed his penis in C.D.F.’s mouth, as stated in the indictment. However, Robertson testified that C.D.F. reported to her that Frei put his “stinky finger” in C.D.F.’s “coo coo” and her mouth, that it tasted “yucky,” and that Frei “white on [her].” Further, Frei’s confession clearly states that he put his penis in C.D.F.’s mouth. Frei states that this testimony should not be considered because C.D.F. denied oral penetration when asked at trial. Any questions as to the weight and credibility of testimony and admissible evidence is for the jury to resolve. See Robert, 821 So.2d at 817(¶ 20). This claim, too, is without merit. Therefore, we find that these issues are also without merit.

5. The indictment was fatally defective

¶ 16. Finally, Frei claims that the indictment was defective because it failed to allege an essential element of the crime, and failed to properly put Frei on notice as to the dates of the charges. Frei failed to demur to these alleged defects at the trial court level. Courts may amend an indictment to correct a defect in form, but defects of substance must be corrected by the grand jury. Rhymes v. State, 638 So.2d 1270, 1275 (Miss.1994). Where an alleged defect is formal and curable by amendment, it is considered waived by the failure to file a demurrer to the indictment. See Adams 851 So.2d at 379(¶ 45). However, an omission of an essential element in an indictment is not waived by failure to demur. Smith v. State, 806 So.2d 1148, 1150(¶ 4) (Miss.Ct.App.2002).

¶ 17. Frei claims that the indictment failed to expressly charge that he penetrated C.D.F. with lustful intent, and that such constitutes an omission and was not waived. The pertinent part of Frei’s indictment reads:

[F]rom the 16th day of July, A.D., 2000 through the 19th day of September, 2003, [Frei] did commit a sexual battery upon [C.D.F.], a human being by placing his penis in the mouth of [C.D.F.] and by placing his finger inside her rectum, as defined in Section 97-3-97, Mississippi Code Annotated, amended without her consent, and at the time of said incident, the defendant was over the age of eighteen (18) years, having a birth date of May 7, 1975, and [C.D.F.] was under the age of fourteen (14) years, having a date of birth of July 16, 2000

Mississippi Code Annotated § 97-3-95(1) (Rev.2000), the section under which Frei was charged provides in part that:

A person is guilty of sexual battery if he or she engages in sexual penetration with:
(a) Another person without his or her consent;
(b) A mentally defective, mentally incapacitated or physically helpless person;
(d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.

¶ 18. Sexual penetration is defined in Mississippi Code Annotated § 97-3-97(a) (Rev.2000) as, “cunnilingus, fellatio, buggery or pederastry, and penetration of the genital or anal openings of another person’s body by any part of a person’s body, and insertion of any object into the genital or anal openings of another person’s body.” However, neither section requires proof of lustful intent. Frei claims that since lustful intent is not specifically charged in the indictment, then the statute is overbroad because it includes innocent penetrations that can occur during the course of parental duties. In response to this concern, in Roberson v. State, 501 So.2d 398, 400-01 (Miss.1987), the supreme court reasoned:

[Although, on its face, the definition of sexual penetration announced in [Mississippi Code Annotated] § 97-3-97 encompasses any penetration, the Court holds the parameters of the definition of sexual penetration are logically confined to activities which are the product of sexual behavior or libidinal gratification, not merely the product of clinical examinations or domestic, parental functions. As stated in United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 98 L.Ed. 989 (1954), [I]f [the] general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction ¶ 19. This argument is without merit.

¶ 20. Frei’s claim as to the sufficiency of the dates alleged in the indictment, however, is waived for failure to demur the indictment in the court below. “[A]n allegation as to the time of the offense is not an essential element of the offense charged in an indictment, and ‘within reasonable limits, proof of any date before the return of the indictment and within the statute of limitations is sufficient.’ ” Daniels v. State, 742 So.2d 1140, 1143(¶ 10) (Miss.1999) (quoting United States v. Cochran, 697 F.2d 600, 604 (5th Cir.1983)). Further, specific dates are not required in sexual abuse indictments so long as the defendant is fully and fairly advised of the charges against him. See Morris v. State, 595 So.2d 840, 842 (Miss.1991). Therefore, the assignment is without merit and the decision of the trial court is affirmed.

¶ 21. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TEN YEARS SUSPENDED AND FIVE-YEARS POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ„ CONCUR.

      . Due to the nature of the offense, the victim's real name will not be used in this opinion.

      . Some factors that the court should examine to determine if there is sufficient indicia of reliability are (1) whether there is an apparent motive on declarant's part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declarant’s faulty recollection is remote; (8) certainty that the statements were made; (9) the creditability of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declarant's age, knowledge, and experience make it unlikely that the declarant fabricated. Comment M.R.E. 803(25).

      . A defect is one of form if it does not materially alter facts which are the essence of the offense as it originally stood, or materially alter a defense to the indictment as it originally stood, to the prejudice of the defense. Adams v. State, 851 So.2d 366, 379(¶ 44) (Miss.Ct.App.2002).


author: MYERS, P.J.,

text:
    Derron Arnez HOSKINS, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-02460-COA.
    Court of Appeals of Mississippi.
    March 21, 2006.
    Rehearing Denied July 25, 2006.

      Derron Hoskins, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Derron Hoskins pled guilty to wilfully, feloniously, knowingly and intentionally selling, bartering, transferring, distributing or dispensing a controlled substance. The Circuit Court of Yalobusha County sentenced Hoskins on January 20, 2004 to serve twenty years in the custody of the Mississippi Department of Corrections and ten years post-release supervision, five years of reporting supervision and five year non-reporting. This sentence was to run consecutively to Hoskins’ federal sentence which he was serving. The Circuit Court of Yalobusha County denied Hos-kins’ motion for post-conviction relief on October 15, 2004, and Hoskins has appealed raising the following issues.

I. WHETHER OR NOT THE TRIAL COURT ERRED IN FAILING TO HOLD THAT HOSKINS WAS SUBJECTED TO INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT.

II. WHETHER OR NOT THE TRIAL COURT ERRED IN FAILING TO HOLD THAT HOSKINS WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT STATED THAT THEY HAD NO AUTHORITY TO IMPOSE A STATE SENTENCE TO RUN CONCURRENT WITH A FEDERAL LAW.

III. WHETHER OR NOT THE TRIAL COURT ERRED IN FAILING TO HOLD THAT HOSKINS WAS SUBJECTED TO A DENIAL OF RIGHTS TO DUE PROCESS OF LAW BY IMPROPER GOVERNMENT ACTIONS AND POLICE MISCONDUCT.

IV. WHETHER OR NOT THE TRIAL COURT ERRED IN FAILING . TO HOLD THAT HOSKINS WAS SUBJECTED TO A DENIAL OF. DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS AND THE DOUBLE JEOPARDY CLAUSE WHERE APPELLANT' WAS PROSECUTED BY THE STATE OF MISSISSIPPI AND THE FEDERAL GOVERNMENT FOR THE SAME CRIME AND WHERE THE COURT REFUSED TO ALLOW SENTENCES IMPOSED BY THE TWO GOVERNMENT ENTITIES TO RUN CONCURRENTLY.

V. WHETHER OR NOT THE TRIAL COURT ERRED IN FAILING TO GRANT HOSKINS AN EVIDENTIARY HEARING WHERE THE CLAIMS PRESENTED IN THE POST-CONVICTION RELIEF MOTION WHERE FACTUAL AND CLEARLY DEMONSTRATED THAT, IF PROVEN, HOSKINS WOULD BE ENTITLED TO RELIEF.

FACTS

¶ 2. Hoskins was indicted on January 13, 2003, for wilfully, feloniously, knowingly and intentionally selling, bartering, transferring, distributing or dispensing a controlled substance. On January 20, 2004, Hoskins entered a guilty plea and was sentenced to twenty years in the custody of the Mississippi Department of Corrections and to ten years of post-release supervision. Hoskins had already entered a guilty plea in federal court on May 8, 2003, for the sale of cocaine and had been sentenced to fourteen years in a federal penal institution on August 27, 2003. Therefore, at the time of Hoskins’ guilty plea in the Circuit Court of Yalobusha County, he was serving his federal sentence at the federal penal institution in Yazoo City. Hoskins’ state sentencing order stated that the federal and state sentences were to run consecutively. Hoskins is currently incarcerated in the federal penal institution in Yazoo City.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 3. Post-conviction collateral relief is “to provide prisoners with a procedure, limited in nature, to review those objections, defenses, claims, questions, issues or errors which in practical reality could not be or should not have been raised at trial or on direct appeal.” Miss.Code Ann. § 99-39-3(2) (Supp.2005). Post-conviction relief is not the same or a substitute for direct appeal.

STANDARD OF REVIEW

¶ 4. This Court will not disturb the trial court’s factual findings, when reviewing a decision to deny a petition for post-conviction relief, unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). However, the applicable standard of review is de novo where questions of law are raised. Id. at 598(¶ 6).

I. WHETHER OR NOT THE TRIAL COURT ERRED IN FAILING TO HOLD THAT HOSKINS WAS SUBJECTED TO INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT.

¶ 5. In order to prove ineffective assistance of counsel, Hoskins must prove by a preponderance of the evidence that (1) counsel’s performance was defective, and (2) the defect was so prejudicial that it prevented Hoskins from receiving a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Moody v. State, 644 So.2d 451, 456 (Miss.1994). The proper standard that is required to show prejudice requires Hos-kins to prove that there is a reasonable probability that, but for counsel’s errors, the trial court’s result would have been different. Strickland, 466 U.S. at 669, 104 S.Ct. 2052. The burden is on Hoskins to prove both prongs of the test. Id.

¶ 6. However, in this case Hoskins entered an open plea and admitted to the judge that he took full responsibility for the crime he committed. Hoskins argues that the record reflects counsel’s ineffective assistance; however, we disagree. Hoskins has failed to meet the two-prong test set out in Strickland. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Hoskins has the burden of proof for the first prong and “there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Hoskins has the burden of proof under the second prong even if counsel’s conduct is “professionally unreasonable;” however, “if the error had no effect on the judgment” the judgment still stands. Id. at 691, 104 S.Ct. 2052. Hos-kins pled guilty to a serious crime and was sentenced within statute guidelines; therefore, Hoskins has not met this heavy burden by showing any evidence that results in a deficiency in counsel’s performance and that is sufficient to prejudice the defense. Id. This issue is without merit.

II. WHETHER OR NOT THE TRIAL COURT ERRED IN FAILING TO HOLD THAT HOSKINS WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT STATED THAT THEY HAD NO AUTHORITY TO IMPOSE A STATE SENTENCE TO RUN CONCURRENT WITH A FEDERAL LAW.

¶ 7. Hoskins argues that the trial court erred when it sentenced him to serve twenty years in the custody of the Mississippi Department of Corrections with this sentence running consecutively with his federal sentence. Hoskins provides us with no law to support this contention; therefore, we decline to address it. The Court need not address an issue if the appellant fails to make an argument pursuant to Rule 28(a)(6) of the Mississippi Rules of Appellate Procedure. Newell v. State, 754 So.2d 1261, 1264-65(¶ 6) (Miss.Ct.App.1999).

III. WHETHER OR NOT THE TRIAL COURT ERRED IN FAILING TO HOLD THAT HOSKINS WAS SUBJECTED TO A DENIAL OF RIGHTS TO DUE PROCESS OF LAW BY IMPROPER GOVERNMENT ACTIONS AND POLICE MISCONDUCT.

IV. WHETHER OR NOT THE TRIAL COURT ERRED IN FAILING TO HOLD THAT HOSKINS WAS SUBJECTED TO A DENIAL OF DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS AND THE DOUBLE JEOPARDY CLAUSE WHERE APPELLANT WAS PROSECUTED BY THE STATE OF MISSISSIPPI AND THE FEDERAL GOVERNMENT FOR THE SAME CRIME AND WHERE THE COURT REFUSED TO ALLOW SENTENCES IMPOSED BY TWO GOVERNMENT ENTITIES TO RUN CONCURRENTLY.

V.WHETHER OR NOT THE TRIAL COURT ERRED IN FAILING TO GRANT HOSKINS AN EVIDENTIARY HEARING WHERE THE CLAIMS PRESENTED IN THE POST-CONVICTION RELIEF MOTION WHERE FACTUAL AND CLEARLY DEMONSTRATED THAT, IF PROVEN, HOSKINS WOULD BE ENTITLED TO RELIEF.

¶8. Since these issues deal with Hos-kins’ constitutional rights we find it appropriate that they be discussed together. Hoskins asserts that the police performed outrageous misconduct during the investigation of his case violating his due process rights. Hoskins goes further to argue that his Fifth and Fourteenth Amendment rights were violated as a result of sentencing entrapment and sentencing manipulation, and as a result of these violations, he is entitled to an evidentiary hearing.

¶ 9. A criminal defendant may waive his right to a jury trial. Robinson v. State, 345 So.2d 1044, 1045 (Miss.1977). When a defendant pleads guilty, he waives his constitutional rights against self-incrimination, his right to confront witnesses against him, his right to a jury trial and his right that each element of the offense be proven. Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1990). The record reflects that the trial judge questioned Hoskins thoroughly at his sentencing and made certain that he understood his rights and the possible maximum sentence. The Mississippi Supreme Court has stated that a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which include rights secured by the Fifth, Sixth and Fourteenth Amendments of the United States Constitution. Anderson v. State, 577 So.2d 390, 391 (Miss.1991). Hoskins asserts a double jeopardy violation in his issue statement, but he fails to make an argument in his brief. However, this Court would like to point out that the failure to address a double jeopardy claim at the trial court level concludes the issue, and it cannot be raised for the first time in a post-conviction relief motion. Henley v. State, 749 So.2d 246, 249(¶ 11) (Miss.Ct.App.1999). We therefore, find this issue to be without merit.

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

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