text:
    Danny HOPE a/k/a Danny Hope, Sr., Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00981-COA.
    Court of Appeals of Mississippi.
    May 8, 2007.

      Danny Hope, Appellant, pro se.
    Office of the Attorney General by W. Daniel Hinehcliff, Attorney for Appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. On February 9, 2005, Danny Hope was convicted in the Hinds County Circuit Court of two counts of armed robbery, and following a sentencing hearing conducted approximately two months later, Hope was sentenced on April 8, 2005, to thirty years confinement upon each count, to run concurrently. He appeals to this Court, asserting a single issue of ineffective assistance of counsel. Assuming, for the sake of argument, the performance of Hope’s trial counsel was deficient, we find no prejudice sufficient to satisfy the second prong of Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Therefore, we affirm the judgment and sentence of the Hinds County Circuit Court.

STATEMENT OF THE FACTS

¶ 2. On February 8, 2005, outside the presence of the jury, the State indicated that it would not pursue habitual offender status at sentencing because the prosecution believed that past convictions for aggravated assault and robbery arose from one single set of facts and that the court had actually remanded count two for aggravated assault. However, Hope contends that, in the sentencing hearing conducted two months following his conviction, the circuit court relied upon an erroneous post-conviction sentencing report (“PSR”) which listed “Armed Robber/Aggravated Assault (99-0-911-01/02)” among his prior felonies, and sentenced Hope to a greater sentence than he would otherwise have received had the PSR accurately described his conviction in cause number 99-0-911. Hope did not, however, receive the maximum sentence that he could have received for the two armed robbery convictions. Hope’s trial attorney did not object or otherwise attempt to bring the alleged errors contained in the PSR to the attention of the circuit court.

¶ 3. As the PSR was not made part of the record, newly appointed counsel filed a motion to consider new evidence not in the record. This motion seeks to include not only the PSR, but also underlying documents which would call the accuracy of the PSR into question. We find that while it is appropriate to supplement the record to include the PSR, which was actually considered by the trial judge, it is not appropriate to supplement the record to included matters not before the trial court in rendering its decision. As an appellate court, we are precluded from considering matters raised for the first time on appeal. Anderson v. State, 904 So.2d 973, 977(¶ 5) (Miss.2004) (citing Wilcher v. State, 479 So.2d 710, 712 (Miss.1985)). Accordingly, the motion to supplement the record is, by separate order, granted in part and denied in part. The record, as supplemented, however, fails to demonstrate any prejudice to Hope by the alleged deficient performance of his counsel; therefore, we affirm.

DISCUSSION

¶ 4. The test for ineffective assistance of counsel is well known and requires a showing of both deficiency in performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Stringer v. State, 454 So.2d 468, 476-77 (Miss.1984). To demonstrate that counsel’s performance was deficient during sentencing, it must be shown that the PSR, which the trial judge considered in handing down Hope’s sentence, was erroneous, and that Hope’s counsel should have objected or otherwise brought the error to the court’s attention. The PSR cannot be proven erroneous without reference to documents not contained in the record and which were not before the trial court. Upon direct appeal, an appellate court will ordinarily only reach the merits of an ineffective assistance of counsel claim if the facts are readily apparent from the record. Colenburg v. State, 735 So.2d 1099, 1101(¶ 5) (Miss.Ct.App.1999). Nevertheless, we reach the merits of Hope’s appeal because, even assuming, without deciding, that the PSR was erroneous and that counsel for Hope was deficient in failing to call the error to the trial court’s attention, we cannot, on this record, determine that Hope was prejudiced.

¶ 5. “[T]o determine the second prong of prejudice to the defense, the standard is ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ This means a ‘probability sufficient to undermine the confidence in the outcome.’ ” Ransom v. State, 919 So.2d 887, 890(¶ 12) (Miss.2005) (quoting Foster v. State, 687 So.2d 1124, 1129-30 (Miss.1996) (internal citations omitted)). In the context of sentencing, Hope must demonstrate a reasonable probability that, but for his counsel’s deficient performance, his sentence would have been less harsh. We are not persuaded that such prejudice can be shown, even assuming that the PSR reflects the inaccuracies which Hope asserts are contained therein.

¶ 6. The transcript of Hope’s sentencing hearing reflects that the trial court did not specifically refer to the two matters which Hope claims are erroneous. The trial court merely mentioned two prior convictions for robbery, and the PSR reflects a conviction for robbery in Hinds County Circuit Court and another conviction for robbery in Cook County, Illinois Circuit Court. The trial court gave no indication that its decision was influenced by the allegedly erroneous description of the Hinds County robbery conviction contained in the PSR, and further, the trial court did not even mention the aggravated assault charge listed in the PSR. Insofar as the trial court mentioned “robbery” during the sentencing hearing colloquy, the court’s reference is accurate notwithstanding Hope’s allegation regarding the PSR’s inaccuracy, as Hope admittedly pled guilty to strong-arm robbery in connection with cause number 99-0-911 on August 24, 2000.

¶ 7. As discussed above, to prevail on a claim of ineffective assistance of counsel, Hope must demonstrate not only that his counsel was deficient, but also that he was prejudiced by his counsel’s deficient performance. In addressing the prejudice issue, we note that the trial court never specifically referred to the allegedly inaccurate portion of the PSR during the sentencing hearing colloquy, referring generally to the two prior convictions for robbery and referring also to a pending charge for armed robbery and a charge pending in federal court for possession of a firearm by a convicted felon. Furthermore, there is no evidence that the allegedly erroneous portion of the PSR had any more of an impact on the sentence handed down by the trial judge than the accurate description of Hope’s conviction would have had. We conclude that Hope has not made an adequate showing of prejudice in that he has not demonstrated a reasonable probability that, but for the allegedly erroneous information contained in the PSR and counsel’s failure to object thereto, the sentence imposed by the trial court would have been less harsh than the sentence actually imposed. Hope was sentenced to two thirty-year terms to be served concurrently. Not only were both terms well below the maximum allowed by section 97-3-79 of the Mississippi Code, but we also note the leniency in allowing Hope to serve each thirty-year term concurrently, rather than consecutively. Hope has failed to demonstrate any prejudice by his trial counsel’s failure to object to the errors allegedly contained in the PSR.

¶ 8. For the foregoing reasons, we affirm the judgment and sentence of the Hinds County Circuit Court.

¶ 9. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I-ARMED ROBBERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND COUNT II-ARMED ROBBERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCES TO RUN CONCURRENTLY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . Hope contends that regarding the prior conviction at issue, he pled guilty to strong-arm robbery, a much less severe crime than armed robbery. Additionally, Hope asserts that a verdict was directed in his favor on the aggravated assault charge. The remaining information regarding cause number 99-0-911 contained in the PSR, including the sentencing disposition, is not in dispute.

      . According to Mississippi Code Annotated section 97-3-79 (Rev.2006), the trial judge in this case could have sentenced Hope to "any term not less than three (3) years.” Only a jury can sentence a person convicted of armed robbery to life in prison; so a trial judge must impose a sentence which is reasonably calculated to be less than the defendant’s life expectancy. See Calhoun v. State, 881 So.2d 308, 312(¶ 15) (Miss.Ct.App.2004) (finding defendant’s armed robbery sentence of forty years did not constitute cruel and inhuman treatment).

      . Although the PSR listed the Hinds County robbery as "Armed Robbery/Aggravated Assault," the trial judge never mentioned these two crimes during the sentencing colloquy, using only the general term "robbery" in referencing Hope's Hinds County conviction.

      . As mentioned, the PSR was allegedly inaccurate by describing Hope’s conviction in Hinds County on August 24, 2000 as "Armed Robbery/Aggravated Assault (99-0-911-01/02)” rather than listing "strong-arm robbery” in the description of the offense. The PSR also reflected a pending charge of armed robbery and a charge pending in federal district court for convicted felon in possession of a firearm.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Dale Laren THOMPSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-CP-01134-COA.
    Court of Appeals of Mississippi.
    May 8, 2007.

      Dale Laren Thompson, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On January 17, 2006, Dale Laren Thompson pled guilty in the Leake County Circuit Court to Count I possession of precursor chemicals with intent to manufacture methamphetamine, Count II possession of methamphetamine, and Count IV possession of a firearm by a previously convicted felon. The trial court granted the State’s ore tenus motion to nolle prose-qui Count III of the indictment. Thompson was sentenced to five years on Count I, three years on Count II, and one year on Count TV, the sentences in each count to be served consecutively for a total of nine years in the Mississippi Department of Corrections. He was also ordered to pay a $1,500 fine plus court costs.

¶ 2. On May 3, 2006, Thompson filed a motion to withdraw his guilty plea or, in the alternative, motion to vacate and set aside bis conviction and sentence on post-conviction relief. The motion centered around a claim of ineffective assistance of counsel but also alleged a defective search warrant, insufficient evidence, and failure of the trial court to inform him of the maximum and minimum sentence for each charge. Finding that Thompson was not entitled to relief, the trial court denied the motion on June 5, 2006.

¶ 3. Thompson now appeals to this Court citing the following issues: (1) the trial court erred in accepting his guilty plea to an invalid and illegal search warrant when he was not renting or leasing the property, was not paying the electrical services, and did not have exclusive dominion and control over the property or deer cabin of Glen Neely; (2) his trial counsel’s failure to inform him of the speedy trial bar to prosecution constituted ineffective assistance of counsel; (3) the trial court erred in failing to advise him of the mandatory minimum sentence provided by law in violation of URCCC 8.04(A)(4)(b); and (4) ineffective assistance of counsel. Issues two and four will be discussed together since each raises the same argument.

STANDARD OF REVIEW

¶ 4. In reviewing a trial court’s decision to deny a motion for post-conviction relief the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). When issues of law are raised the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

DISCUSSION

I. WAS THE SEARCH WARRANT ILLEGALLY OBTAINED?

¶ 5. Thompson argues that the trial court erred in accepting his guilty plea because the search warrant used to obtain the precursors, guns, and methamphetamine from the property was illegally obtained. His theory behind this argument is that the property and deer camp cabin for which the search warrant was issued belonged to and was under the exclusive control of Glen Neely. Thompson asserts that Neely gave him permission to be on the property to replace the motor in Thompson’s vehicle. He asks this Court to take into consideration that he had no means of transportation because he had taken the motor out of his vehicle and no receipts were found that traced the precursors or methamphetamine to Thompson. He also alleges that the guns and other hunting gear belonged to Neely, and Thompson only signed the release for these items because he was threatened by the district attorney.

¶ 6. Despite all Thompson’s assertions that he was not in possession of the property seized, Thompson entered a guilty plea and is now proeedurally barred from challenging the sufficiency of the search warrant. A criminal defendant who pleads guilty “is not entitled to relief since he waived his right to challenge the State’s evidence by entering a valid guilty plea.” Thornhill v. State, 919 So.2d 238, 241(¶ 16) (Miss.Ct.App.2005). “A valid plea waives the defendant’s right to make certain constitutional challenges, including those under the Fourth Amendment.” Id.

¶ 7. Thompson waived his right to challenge the search warrant when he pled guilty. We find this issue without merit.

II. WAS THOMPSON DENIED EFFECTIVE ASSISTANCE OF COUNSEL?

¶8. Thompson asserts three main reasons why his counsel was ineffective. First, he argues that his counsel failed to inform him of the speedy trial bar to prosecution. Second, he argues that the only reason he pled guilty was because he was misled by his counsel. Specifically, he states that his counsel told him that if he proceeded to a jury trial he could be sentenced to one hundred fifty-eight years in prison and ordered to pay a $2 million fine. Third, he argues that his counsel was ineffective for allowing him to plead guilty in light of a defective search warrant.

¶ 9. Claims of ineffective assistance of counsel are judged by the standard in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The two-part test set out in Strickland is whether counsel’s performance was deficient and, if so, whether the deficiency prejudiced the defendant to the point that “ ‘our confidence in the correctness of the outcome is undermined.’ ” Harris v. State, 806 So.2d 1127, 1130(¶ 10) (Miss.2002) (citing Neal v. State, 525 So.2d 1279, 1281 (Miss.1987)). We cannot find that Thompson’s counsel’s performance was deficient, and, therefore, the first prong of Strickland is not met. Thompson stated at his plea hearing that his attorney did a good job and fully investigated all counts against him. Thompson also stated in open court under oath that his guilty plea was given voluntarily and intelligently. If a defendant is advised regarding the nature of the charge and the consequences of the plea, it is considered voluntary and intelligent. Harris, 806 So.2d at 1130(¶ 9). Furthermore, “[sjolemn declarations in open court carry a strong presumption of verity.” Id. (citing Baker v. State, 358 So.2d 401, 403 (Miss.1978)). Thompson has not shown any evidence that his attorney’s performance was deficient nor has he shown any resulting prejudice.

¶ 10. This issue is without merit.

III. DID THE TRIAL COURT FAIL TO ADVISE THOMPSON OF THE MANDATORY MINIMUM SENTENCE?

¶ 11. Thompson argues that the trial court failed to advise him of the maximum and minimum penalties as required in Uniform Rule of Circuit and County Court 8.04(A)(4)(b), and thus his plea of guilty was invalid. URCCC 8.04(A)(4)(b) states:

When the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine: ... That the accused understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law.

¶ 12. Thompson’s argument is unfounded as the record of the plea hearing clearly shows that Thompson was advised of the maximum and minimum penalties he faced. The following exchange took place between Gill Baker, Thompson’s attorney, and the trial court at Thompson’s plea hearing:

THE COURT: Mr. Baker, each count has a minimum and a maximum sentence, would you recite to the Court what the minimum and the maximum penalty is on counts 1, 2, & 4, please.
MR. BAKER: Count 1, 0 to 30 years, $5,000.00 to a million dollar fine. Count 2, 4 years to 16 years, 0 to $250,000.00 fíne. Count 3,10 years to 30 years, 0 to one million dollar fine. Count 4, 0 to 3 years, 0 to $5,000.00 fine.
THE COURT: And recite into the record counts 1, 2, & 4 is a total of how many years exposure?
MR. BAKER: 49 years, Your Honor.
THE COURT: All right. Do you understand that?
THOMPSON: Yes, sir, I understand.

¶ 13. Thompson argues that URCCC 8.04(A)(4)(b) requires the judge to state the maximum and minimum penalties, and the court did not comply with the rule since his attorney stated the penalties in response to the trial court’s request. Thompson’s argument fails since URCCC 8.04(A)(4)(b) only requires that the trial court address the defendant personally to determine if “the accused understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law.” The trial court asked Thompson if he understood, and Thompson responded in the affirmative. The trial court complied with the rule.

¶ 14. We find this issue without merit.

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

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


author: BARNES, J.,

text:
    James JOHNSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01913-COA.
    Court of Appeals of Mississippi.
    May 15, 2007.

      Walter E. Wood, Ridgeland, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. James Johnson was convicted of capital murder following a trial conducted in the Circuit Court of Madison County. Johnson was subsequently sentenced to a term of life in the custody of the Mississippi Department of Corrections. Aggrieved, Johnson perfected this appeal, asserting that the trial court erred by issuing a jury instruction which was inconsistent with the State’s theory of guilt at trial, and by denying Johnson’s motion in limine to prohibit the introduction of testimony which he contends contained hearsay statements. We find Johnson’s assignments of error to be without merit and affirm his conviction by the circuit court.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶2. Manav Virmani was working as a cashier at Mae’s Convenience Store in Canton, Mississippi on the evening of July 2, 2001. According to Mac’s manager, Amarjeet Singh, Virmani was to meet Singh for dinner at a nearby restaurant after Virmani closed the convenience store at 9:00 p.m. When Virmani failed to answer Singh’s phone calls placed to both Virmani’s cell phone and to the store sometime between 8:00 and 8:30 p.m., Singh went by the house where Virmani was residing to see if Virmani had perhaps closed Mac’s early and gone home. Following a futile search of Virmani’s residence, Singh went to the convenience store where he discovered Virmani’s lifeless body. An autopsy performed on July 3, 2001, revealed that Virmani was shot three times, the fatal shot entering the left side of his head and lodging inside his skull.

¶ 3. Singh testified that after contacting the police, he discovered that there were three drawers missing from the store’s cash registers. During his search of the area the following morning, Canton Police Investigator Johnny Burse noticed scuff marks leading away from the rear of the convenience store. Burse followed the scuff marks to a ditch where he discovered a trash can containing three cash drawers similar to those missing from Mac’s. The Mississippi State Crime Lab found a latent fingerprint on the underside of one of the cash drawers. A comparison of the latent fingerprint with a sample taken from Johnson revealed that the fingerprint on the cash drawer had been left by Johnson.

¶4. James Johnson was subsequently arrested, and a grand jury indicted him for capital murder on October 17, 2001. In pertinent part, the indictment returned by the Madison County Grand Jury provided as follows:

JAMES JOHNSON, late of the county aforesaid, on or about the 2nd day of July, 2001, in the county aforesaid and within the jurisdiction of this court, did willfully, unlawfully, and feloniously shoot and kill Manva [sic] Virmani, a human being, while he, the said JAMES JOHNSON, was then and there engaged in the felony crime of robbery, in violation of Miss.Code Ann. § 97-3-19(2)(e) [1972, as amended] and against the peace and dignity of the State of Mississippi.

After several continuances, Johnson’s trial in the Madison County Circuit Court began on August 2, 2005.

¶ 5. At trial, the State introduced into evidence the abandoned cash register drawers found behind Mac’s Convenience Store and elicited expert testimony identifying the fingerprint found on one of the cash drawers as having been left by Johnson. This was the only physical evidence introduced at trial linking Johnson to the robbery and murder of Virmani. Testimony elicited during cross-examination of the fingerprint expert revealed that the latent print found on the cash drawer could have been left as long as one year prior to discovery of the drawer behind Mac’s. Further cross-examination testimony from various State witnesses established that the cash drawers could not be positively identified as the drawers taken from Mac’s Convenience Store on the night of the robbery/homicide, nor could any of the witnesses testify affirmatively that no one except employees had handled the cash drawers. Although the fingerprint on the cash drawer was the only physical evidence produced at trial linking Johnson to the robbery and murder of Virmani, several witnesses for the State testified regarding the involvement of Johnson and his brother (and alleged accomplice), James Howard, in the crime. According to these witnesses, not only did Johnson and Howard talk about committing the crime prior to its commission, one of the State’s witnesses testified that Johnson also confessed to killing Virmani subsequent to the robbery and murder.

¶ 6. At the conclusion of the two-day trial, a unanimous jury found Johnson guilty of capital murder, and the trial judge sentenced Johnson to a term of life in prison. Final judgment was entered to this effect on August 3, 2005. Johnson promptly filed a “Motion for Judgment Notwithstanding the Jury Verdict or for New Trial” on August 12, 2005, which was denied by order entered on September 12, 2005. Johnson timely filed his notice of appeal on September 26, 2005, asserting error by the trial court in two respects. First, Johnson contends that the trial court erred by allowing a jury instruction based on accomplice liability when the State’s theory of guilt at trial was that Johnson was the principal in the robbery and murder of Virmani. Johnson argues not only that he had inadequate notice that he would be subjected to an accomplice theory of guilt, in violation of his due process rights, but also that there was insufficient evidence to allow an accomplice liability instruction to be submitted to the jury. Second, Johnson argues that the trial court erred by allowing certain testimony that he claims contained hearsay statements. Finding no reversible error by the trial court, we affirm.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN SUBMITTING A JURY INSTRUCTION BASED ON ACCOMPLICE LIABILITY

¶ 7. The standard of our review for the grant or denial of jury instructions is well established. According to the Mississippi Supreme Court, in reviewing challenges to jury instructions, “[t]he instructions actually given must be read as a whole.” Williams v. State, 803 So.2d 1159, 1161(¶ 7) (Miss.2001) (quoting Hickombottom v. State, 409 So.2d 1337, 1339 (Miss.1982)). “When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. (quoting Hickombottom, 409 So.2d at 1339). A trial court “may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Ladnier v. State, 878 So.2d 926, 931(¶ 20) (Miss.2004) (quoting Heidel v. State, 587 So.2d 835, 842 (Miss.1991)). In the instant case, Johnson takes issue with jury instruction number five, which we recite in its entirety:

The Court instructs the jury that if you find from the evidence that the crime of Capital Murder was committed in this case; each person who was present, consenting to the commission of the crime and doing any act which aided, assisted or encouraged the crime, is guilty to the same extent as if he committed the whole crime.

¶ 8. Johnson does not contend that this jury instruction contains an incorrect statement of the law; rather, he argues that, because the indictment charged Johnson as a principal, and since the State’s theory of guilt at trial was that “Johnson was a principal perpetrator in the felony murder on July 2, 2001,” it was error to allow an instruction based on a theory of accomplice liability to be submitted to the jury. Alternatively, Johnson asserts that there was insufficient evidence produced at trial to allow submission of a jury instruction based on accomplice liability. For reasons that we will now discuss, we find both of Johnson’s arguments with respect to jury instruction number five to be without merit.

A. WHETHER THE INDICTMENT CHARGING JOHNSON AS A PRINCIPAL PRECLUDED SUBMISSION OF A JURY INSTRUCTION BASED ON ACCOMPLICE LIABILITY

¶ 9. Johnson argues on appeal that the trial judge erred by granting a jury instruction which, according to Johnson, enlarged his liability by allowing the jury to convict him of capital murder even if the jury did not believe that Johnson was the actual triggerman. Johnson asserts that neither the indictment, which charged Johnson as a principal, nor the State’s theory of liability during its case-in-chief gave him notice that he may be found guilty based on an accomplice theory of guilt. We do not find Johnson’s argument to be persuasive.

¶ 10. In Pratt v. State, 870 So.2d 1241 (Miss.Ct.App.2004), this Court was presented with an identical argument to the one which Johnson asserts in the instant case. There, the defendant argued that “because he was indicted for the sale of a controlled substance and not as an accessory,” the trial court was in error for allowing a jury instruction based on accomplice liability. Id. at 1249(¶ 26). During objections to jury instructions, counsel for defendant argued that “[the defendant] was not charged with aiding and abetting, accessory, conspiracy, encouraging, anything like that; and I think it would [be] error to allow the [S]tate to come in now at the end at the close of the case and to change [its] theory of the case.” Id. at (¶ 27). In allowing the challenged instruction, the trial judge in Pratt cited the fact that the criminal statute at issue allowed an accessory-before-the-fact to be charged, indicted, and sentenced as a principal. Id. We affirmed the judgment of the trial court in that case, holding that “[e]ven though his indictment charged him as a principal, the evidence presented supports the instruction given.” Id. at 1250(¶ 28) (citing Hollins v. State, 799 So.2d 118, 123(¶ 14) (Miss.Ct.App.2001)).

¶ 11. Johnson cites Brown v. Collins, 937 F.2d 175 (5th Cir.1991) to support his contention that the trial court erred by allowing a jury instruction based on accomplice liability. In Brown, the federal circuit court, applying Texas substantive law, stated that “[w]here the theory of culpability in the application paragraphs of the jury charge is that the defendant acted as a principal, the evidence must support that theory, not a theory of party-accomplice liability.” Id. at 180-81. Even assuming, without deciding, that the holding of Brown is in harmony with the law of Mississippi, we nevertheless find Brown inapplicable to the facts of the instant case. In Bronm, an accomplice instruction was not given, whereas in the instant case, jury instruction number five did contain such an instruction. The implication of the Brown court’s holding is evident from the following quote: “Where the jury is instructed that the defendant must be found guilty as a principal, but the evidence does not support that theory of culpability, the defendant is entitled to a judgment of acquittal even if the evidence is sufficient to convict the defendant as a party-accomplice.” Id. at 176. We find nothing in the holding of Brown to support Johnson’s contention that an accomplice instruction should not have been given in the instant case.

¶ 12. We likewise find no support for Johnson’s argument in the Mississippi statutory provision which addresses accomplice liability. Mississippi Code Annotated section 97-1-3 (Rev.2006) provides that “[e]very person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not.” Accordingly, Johnson cannot claim prejudice by a jury instruction that properly instructed the jury in accordance with section 97-1-3 simply because the indictment did not contain any allegations regarding accomplice liability. See Pratt, 870 So.2d at 1250(¶ 28). The clear language of section 97-1-3, as well as the holdings of both this Court and the Mississippi Supreme Court interpreting and applying that provision, provide sufficient notice to felony defendants that although they may be indicted as a principal, a jury instruction based on accomplice liability is proper, provided that “the evidence presented supports the instruction given.” Id. We turn now to the issue of whether the evidence presented in the case sub ■ judice supports the instruction given.

B. WHETHER THE EVIDENCE SUPPORTS JURY INSTRUCTION NUMBER FIVE

¶ 13. Johnson’s alternative assignment of error with respect to jury instruction number five is that “the allowance of the jury instruction was not supported by sufficient evidence.” However, Johnson’s argument on this issue appears to call into question the credibility of witnesses for the State, witnesses whose testimony, if believed by the jury, clearly establishes that Johnson was substantially involved in the robbery and murder of Manav Virmani. Johnson points out in his brief that one of the State’s witnesses, Patricia McCoy, pled guilty to accessory-after-the-fact in the capital murder of Virmani for disposing of the bloody clothes worn by Johnson and alleged accomplice James Howard during the robbery and murder. Patricia agreed to testify against Johnson as part of her plea agreement with the State. Two of Patricia’s adult children, Shonda and Marcus McCoy, also testified for the State at trial. Johnson argues that, because Patricia agreed to testify as part of a plea agreement, her testimony “should be viewed with great caution,” and that the testimony of Shonda and Marcus “should be scrutinized for bias and motive.” Johnson further argues that, “[ajbsent the tainted testimony of the McCoy family, all the State offered was evidence of a fingerprint found on one of the cash register drawers.” We are not persuaded by this argument. We note that the record reflects that the jury was aware of all of the facts which Johnson contends indicate “bias and motive,” and it is the jury’s role to determine whether or not the testimony of these witnesses was “tainted.”

¶ 14. Our supreme court has acknowledged the well-settled role of the jury in assessing the credibility of witnesses. In Copeland v. Jackson, 548 So.2d 970 (Miss. 1989), the supreme court emphatically reiterated the rule as follows: “This Court has stated too often to need repeating that the jury is the sole judge of a witness’ credibility and the weight to be given his testimony, and that the jury may reject any or all parts of a witness’ testimony.” Id. at 981 (citing Wells Fargo Armored Serv. Corp. v. Turner, 543 So.2d 154, 156 (Miss.1989); BFGoodrich, Inc. v. Taylor, 509 So.2d 895, 903 (Miss.1987); Garcia v. Coast Elec. Power Ass’n, 493 So.2d 380, 382 (Miss.1986); Travelers Indem. Co. v. Rawson, 222 So.2d 131, 134 (Miss.1969)). Although Johnson’s argument essentially concedes that, if credible, the testimony of Patricia and Shonda McCoy would support both the contested jury instruction and the jury’s verdict, we will nevertheless analyze that testimony for sufficiency purposes. In so doing, “we must accept as true all the testimony offered on behalf of the State together with all the reasonable inferences drawn therefrom.” Boches v. State, 506 So.2d 254, 259 (Miss.1987) (citing Burnham v. State, 467 So.2d 946, 947 (Miss.1985)).

¶ 15. Patricia, who had entered a plea of guilty to the charge of accessory after the fact, testified as follows:

Q. [BY PROSECUTOR:] What were the facts surrounding your guilty plea? How was it that you were even involved as an accessory after the fact?
A. Because I threw the bloody clothes away.
Q. How did the bloody clothes come into your possession?
A. When James Johnson and Wilbert Williams changed clothes in my apartment.
Q. Then what happened?
A. They told me — I don’t know which one it was. James Howard and James Johnson, told me to throw the clothes away, but I did.
[BY DEFENSE COUNSEL:] Objection, your Honor.
THE COURT: Overruled, you made your record.
Q. ([Prosecutor], Continuing) Now say that again, please.
A. I can say it again? It was James Johnson or James Howard told me to throw the bag away with the bloody clothes in it.
Q. What [did you] do in response?
A. I threw them away.
Q.' How did you know what was in the bag?
A. Because they told me what was in there.

¶ 16. Shonda McCoy, Patricia’s daughter, gave the following testimony at trial:

Q. [BY PROSECUTOR:] Had you been around — what if any occasion did you have to be around James Johnson and James Howard before Mac’s Super-ette was robbed and the man was killed? Did you have an occasion to be around him before then?
A. Yeah.
Q. And did you have a conversation or did you hear a conversation about that?
A. Well, just them planning, you know, to rob the place or whatever. But it was like a week before everything happened.
Q. And you say they planned, who are you talking about?
A. Well, who was sitting outside was James Johnson and James Howard, and I can’t remember who else. But I happened to be out there just around them.
Q. And then I want to go to after the actual robbery and the actual killing. What if any, were you curious as to what happened?
A. Yeah.
Q. Did you have a conversation with James Johnson about that?
A. Well, yeah. I had asked him a question like why, you know, they had killed the man and stuff like that. But he just said he killed him and he’ll kill again.
Q. What exactly, if you can remember, did he tell you about that, about killing?
[BY PROSECUTOR:] Your Honor, I’d ask the court to instruct the witness that I’m afraid there’s some bad language that she’s afraid of using; however, it’s acceptable in the court because it’s the facts.
THE COURT: Yeah, she can respond to your questions.
A. Okay, well, excuse my language. He told me, “I killed the m-f-, and I’ll kill again.”
Q. That was James Johnson that said that?
A. Yeah.

¶ 17. From the preceding testimony, viewed in a light most favorable to the State, we find sufficient evidence produced at trial to support not only jury instruction number five, but also to support the jury’s verdict. If the jury believed all of the testimony offered by Shonda, including Johnson’s confession to which Shonda testified, then there was sufficient evidence to support a finding that Johnson was the principal in the robbery and murder of Virmani. If the jury chose to disregard the confession and believe only Patricia’s testimony regarding the bloody clothes and Shonda’s testimony regarding the planning of the crime, then the evidence was sufficient to support an accomplice instruction and Johnson’s conviction as a principal. As previously stated, “the jury may reject any or all parts of a witness’ testimony.” Copeland, 548 So.2d at 981. Viewing the testimony of the McCoys in a light most favorable to the State, with all reasonable inferences drawn accordingly, we find that the evidence contained in the record is sufficient to support an accomplice jury instruction as well as sufficient to support the jury’s verdict finding Johnson guilty of capital murder. Moreover, the fact that some of the inculpatory testimony came from Patricia, an accessory after the fact to this crime, does not affect our decision.

¶ 18. As our supreme court has held, where uncorroborated accomplice testimony is “reasonable, not improbable, self-contradictory or substantially impeached, ... such testimony may be found to adequately support a conviction.” Johns v. State, 592 So.2d 86, 88 (Miss.1991) (citations omitted). Not only was Patricia’s testimony corroborated by other witnesses, but we also find nothing in the record to indicate that her testimony was unreasonable, improbable, self-contradictory, or substantially impeached. In an exercise of caution, the trial court granted defendant’s proposed jury instruction D-10, which instructed the jury to consider and weigh accomplice testimony “with great care and caution,” and that the jury “may give it such weight and credit as [the jurors] deem it is entitled.” Accordingly, this assignment of error is without merit. We turn now to Johnson’s assertion that the trial court improperly allowed hearsay testimony.

II. WHETHER THE TRIAL COURT ERRED BY ALLOWING CERTAIN TESTIMONY GIVEN BY PATRICIA MCCOY AND DETECTIVE WILLIE HARPER WHICH JOHNSON ALLEGES WAS HEARSAY

¶ 19. Johnson argues on appeal that it was error for the trial court in this case to deny his “motion in limine to prohibit the admission of particular hearsay evidence.” Specifically, Johnson alleges that Patricia McCoy should not have been allowed to testify as to what Johnson and/or Howard, Johnson’s alleged accomplice, told her regarding the disposal of the pair’s bloody clothes. Johnson also argues that his motion in limine should have been granted with respect to testimony offered by Detective Willie Harper in which Harper referred to several anonymous phone calls. A party is entitled to a motion in limine “only when the trial court finds two factors are present: (1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury.” Whittley v. Meridian, 530 So.2d 1341, 1344 (Miss.1988) (quoting State v. Quick, 226 Kan. 308, 597 P.2d 1108, 1112 (1979)). Because we find the first factor lacking, we find that the trial court properly denied Johnson’s motion in limine with respect to the challenged testimony.

¶ 20. The State argues that the testimony of Patricia McCoy which Johnson contends was hearsay is actually non-hearsay pursuant to Mississippi Rules of Evidence 801(d)(2)(E), which provides that “[a] statement is not hearsay if: ... [t]he statement is offered against a party and is ... (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.” The challenged testimony, given by Patricia at trial, is found in the following exchange:

Q. [BY PROSECUTOR:] What were the facts surrounding your guilty plea? How was it that you were even involved as an accessory after the fact?
A. Because I threw the bloody clothes away.
Q. How did the bloody clothes come into your possession?
A. When James Johnson and Wilbert Williams changed clothes in my apartment.
Q. Then what happened?
A. They told me — I don’t know which one it was. James Howard and James Johnson, told me to throw the clothes away, but I did.
[BY DEFENSE COUNSEL:] Objection, your Honor.
THE COURT: Overruled, you made your record.
Q. ([Prosecutor], Continuing) Now say that again, please.
A. I can say it again? It was James Johnson or James Howard told me to throw the bag away with the bloody clothes in it.
Q. What [did you] do in response?
A. I threw them away.
Q. How did you know what was in the bag?
A. Because they told me what was in there.

¶21. As previously mentioned, Mississippi Rules of Evidence 801(d)(2)(E) exempts from the definition of hearsay any out-of-court statement which is offered against a party only if that statement was made “by a co-conspirator of a party during the course and in furtherance of the conspiracy.” M.R.E. 801(d)(2)(E). “[Before a co-conspirator’s testimony can be admitted under Rule 801(d)(2)(E), the prosecution has the burden of establishing the preliminary fact of a conspiracy.” Farris v. State, 764 So.2d 411, 429 (Miss.2000) (¶ 60) (citing Tavares v. State, 725 So.2d 803, 809 (Miss.1998)). In determining whether the preliminary fact of conspiracy has been established, “the trial court is ordinarily limited to the evidence offered at the Rule 104 hearing....” Id. (citing Ponthieux v. State, 582 So.2d 1239, 1244 (Miss.1988)). However, “on appeal we will search the entire record in determining whether the preliminary fact of conspiracy has been established[, and] ‘[i]t is to the entire record that we employ a clearly erroneous standard of review.’ ” Id. (quoting Ponthieux, 532 So.2d at 1244). “A finding of fact is ‘clearly erroneous’ when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.” Ponthieux, 532 So.2d at 1244. However, “where we are left with no such conviction, the finding is beyond our authority to disturb.” Id.

¶ 22. In the instant case, we find substantial evidence that Johnson and James Howard were involved in a conspiracy. As defined by the Mississippi Supreme Court, “[c]onspiracy is a combination of two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose unlawfully, the persons agreeing in order to form the conspiracy. The offense is complete without showing an overt act in the furtherance of the conspiracy.” Farris, 764 So.2d at 428-29 (citing Griffin v. State, 480 So.2d 1124, 1126 (Miss.1985)). Shonda McCoy testified that, approximately one week prior to the robbery and murder of Virmani at Mac’s Convenience Store, she overheard Johnson, Howard, and an unidentified individual planning the robbery of Mac’s. Accordingly, the preliminary fact of conspiracy was established, and any statements made by Howard in furtherance of the conspiracy could be offered against Johnson as non-hearsay pursuant to Rule 801(d)(2)(E). A statement made in an attempt to conceal evidence of the consummated crime is undoubtedly a statement made “in furtherance of the conspiracy.” See Osborne v. State, 99 Miss. 410, 423, 55 So. 52, 54 (1911). From the facts contained in the record, we cannot find that the trial court committed clear error by allowing Patricia’s testimony which recounted statements made to her by either Johnson or Howard.

¶23. Johnson argues that “the record fails to reflect an established conspiracy between Mr. Johnson and Patricia McCoy to commit any offense.” Johnson asserts further that since the State failed to establish a conspiracy between Patricia and Johnson, any statements that Johnson made to her “should be excluded as hearsay, as they were not in support of or in furtherance of a conspiracy.” Johnson apparently reads an additional requirement into Rule 801(d)(2)(E) for which he cites no authority. To be considered non-hearsay, subsection (E) merely requires, inter alia, the statement to be made by a co-conspirator, not to a co-conspirator. Nowhere does the rule state that the person giving testimony must have been part of the conspiracy. Nor is the person to whom the statement is made required to be a co-conspirator in order for the statement to be non-hearsay. Accordingly, Johnson’s argument to the contrary is without merit.

¶24. Johnson next contends that certain testimony given by Detective Willie Harper of the Canton Police Department was hearsay, and thus, the trial court erred by not excluding the challenged testimony pursuant to either Johnson’s motion in limine or on objection at trial. The questioned testimony was given in response to the following question posed to Detective Harper by the prosecutor: “How was James Johnson developed as a suspect in this case?” Detective Harper responded: “By anonymous tips at the police department and through witnesses.” The State argues that the mere mention of “anonymous tips” does not constitute hearsay. We agree.

¶25. Detective Harper’s reference to “anonymous tips” did not divulge the substance of what was said in those conversations, did not divulge the identity of any of the callers, and was offered only to give information as to how and why Johnson was developed as a suspect. In a case with analogous facts and issues, the United States Court of Appeals for the Seventh Circuit clearly articulated the rationale for holding as non-hearsay testimony such as that given by Detective Harper:

The record reveals ... that [Detective] Levy neither revealed the name of the informant nor the contents of the telephone conversation; consequently, the fact tha[t] an anonymous tip occurred was not hearsay. Defendant’s objection would have been appropriate had the contents of the telephone conversation been admitted for the truth of the matters asserted therein. Roberts v. State, (1978) 268 Ind. 348, 375 N.E.2d 215. As it was, however, the fact that the tip had occurred was offered for the purpose of establishing the manner in which the police conducted their investigation. The trial court did not err in permitting Levi to testify.

Mason v. Hanks, 97 F.3d 887, 896 (7th Cir.1996) (quoting Head v. State, 443 N.E.2d 44, 59 (Ind.1982)). Therefore, Detective Harper’s testimony which divulged that he relied, in part, on anonymous tips was merely a statement of fact regarding his investigative process. Accordingly, Harper’s testimony was not hearsay, and the trial court did not err by allowing its admission. We find Johnson’s assignment of error to be without merit.

CONCLUSION

¶ 26. For the foregoing reasons, we find no error by the Madison County Circuit Court in allowing jury instruction number five, which instructed the jury on accomplice liability. Furthermore, we find that the trial court did not err by allowing the testimony of Patricia McCoy and Detective Willie Harper. The judgment of the trial court is, therefore, affirmed in all respects.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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

      . Mac’s Convenience Store is also referred to as "Mac's Superette” throughout the record.

      . Johnson objected to certain of the testimony offered by the State’s witnesses as inadmissible hearsay. We will address this issue below.

      . According to the Johns court, a trial court in its discretion may give a cautionary instruction regarding accomplice testimony, but is not required to grant such an instruction unless “(1) the witness was, in fact, an accomplice, and, (2) the testimony was not corroborated.” Johns, 592 So.2d at 88-89 (citing Derden v. State, 522 So.2d 752, 754 (Miss.1988)).

      . We previously set out Patricia's testimony in paragraph fifteen, above, but because of its particular relevance to this issue, we reproduce that testimony again in this section.

      . Although Patricia could not be certain whether it was Johnson or Howard who told her to dispose of the bloody clothes, we note that the testimony would be admissible either way. As will be shown, if the statement was made by Howard, it would be admissible as a statement made by a co-conspirator in furtherance of the conspiracy pursuant to Rule 801(d)(2)(E). If made by Johnson, the testimony would be admissible “as his own statement” pursuant to Rule 801(d)(2)(A).

      . In Osborne, the Mississippi Supreme Court, quoting from 12 Cyc. 438 i, stated the following: "Acts or declarations of conspirators are not always excluded because they were done or made after the commission of the crime. If for any reason, as for escape or concealment, the common purpose continues, declarations in furtherance thereof are admissible, although the crime which was the object of the conspiracy has been consummated." Id.


author: ROBERTS, J.,

text:
    Park Allen TRITLE, Appellant v. Casi Alicia TRITLE, Appellee.
    No. 2005-CA-01768-COA.
    Court of Appeals of Mississippi.
    May 15, 2007.

      Dixie Lynn Vaughn, Gulfport, attorney for appellant.
    Darryl A. Hurt, Lucedale, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. This appeal originates from Park and Casi Tritle’s divorce before the George County Chancery Court. Park and Casi agreed to a divorce based on irreconcilable differences. They left it to the chancellor to determine the remaining issues, as they could not resolve those issues themselves. Most pertinent to our present purposes, the chancellor (a) awarded Casi custody of the two children, and (b) ordered Park to pay Casi periodic alimony. Aggrieved, Park appeals and takes issue with the chancellor’s decisions regarding custody and alimony. Specifically, Park raises the following four issues, listed verbatim:

I. WHETHER THE COURT COMMITTED MANIFEST ERROR IN ITS FINDINGS OF FACT AND FAILED TO PROPERLY APPLY THE ALBRIGHT FACTORS WHICH RESULTED IN AN AWARD OF CUSTODY WHICH IS NOT IN THE BEST INTEREST OF THE CHILDREN.

II. WHETHER THE COURT WAS CLEARLY ERRONEOUS IN WEIGHING AN ALBRIGHT FACTOR IN FAVOR OF CASI.

III. WHETHER THE COURT USED AN INCORRECT LEGAL STANDARD IN AWARDING CUSTODY, AMOUNTING TO REVERSIBLE ERROR.

IV. WHETHER THE COURT ABUSED ITS DISCRETION AND COMMITTED MANIFEST ERROR IN GRANTING CASI PERIODIC ALIMONY.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Park and Casi Tritle were married on August 6, 1983, in Milford, New Hampshire. On March 30, 1994, while living in Spain, Park and Casi had twins, Park Austin Tritle and Tatiana Marie Tritle. Eventually, Park and Casi made their home in Lucedale, Mississippi. Park and Casi maintained their marriage until March of 2004.

¶ 3. In the spring of 2004, Park filed a complaint for divorce. After procedural volleys involving a counterclaim by Casi and an amended complaint by Park, Park and Casi agreed to divorce based on irreconcilable differences. On January 11, 2005, Park and Casi went to trial before the George County Chancery Court. Though they had agreed to divorce based on their irreconcilable differences, Park and Casi left it to the chancellor to resolve child custody, child support, alimony payable to Casi, distribution of debt, distribution of retirement accounts, and ownership of the children’s passports. Park and Casi presented evidence over the course of four non-sequential days.

¶4. On June 15, 2005, the chancellor rendered a thorough set of findings of fact and conclusions of law. Among other things, the chancellor (a) awarded “paramount” custody of the children to Casi, (b) granted Park visitation, (c) ordered Park to pay Casi $557.88 in monthly child support payments, (d) ordered Park to maintain health insurance on the children, (e) ordered Park to pay Casi $375 per month in periodic alimony, and (f) ordered Park and Casi to equally divide their retirement accounts. The chancellor ordered Casi’s attorney to prepare a judgment that corresponded to the chancellor’s findings of fact and conclusions of law. That judgment was filed on August 18, 2005. Aggrieved by the chancellor’s decisions regarding custody and alimony, Park appeals.

ANALYSIS

I. WHETHER THE COURT COMMITTED MANIFEST ERROR IN ITS FINDINGS OF FACT AND FAILED TO PROPERLY APPLY THE ALBRIGHT FACTORS WHICH RESULTED IN AN AWARD OF CUSTODY WHICH IS NOT IN THE BEST INTEREST OF THE CHILDREN.

II. WHETHER THE COURT WAS CLEARLY ERRONEOUS IN WEIGHING AN ALBRIGHT FACTOR IN FAVOR OF CASI.

¶ 5. In her findings of fact and conclusions of law, the chancellor found that Casi was the proper person to have custody of the children. The chancellor reached her decision after an analysis of the familiar factors set forth in Albright v. Albright, 437 So.2d 1003 (Miss.1983). Park claims the chancellor committed reversible error.

¶ 6. In particular, the chancellor found that six of the Albright factors favored Casi: (1) continuity of care prior to the separation, (2) parenting skills and willingness and capacity to provide primary child care, (3) employment of the parents and the responsibility of that employment, (4) moral fitness of each parent, (5) home, school, and community record of the children, and (6) other relevant factors. The chancellor did not find that any factor favored placing the children in Park’s custody. Instead, the chancellor found that the remaining Albright factors favored neither Park nor Casi.

¶ 7. On appeal, Park submits that the chancellor should not have found that any factors favored placing custody with Casi. Additionally, Park takes the position that, although the chancellor found that physical and mental health of the parents and stability of the home environment favored neither him nor Casi, the chancellor should have found that those two factors favored him.

¶8. The standard of review in child custody cases is rather limited. Lee v. Lee, 798 So.2d 1284(¶ 14) (Miss.2001). In child custody cases, the polestar consideration is the best interest and welfare of the child. Albright, 437 So.2d at 1005. The chancellor is the finder of fact in a child custody dispute. Funderburk v. Funderburk, 909 So.2d 1241(¶ 10) (Miss.Ct.App.2005). As the finder of fact, the chancellor is vested with the responsibility to hear the evidence, assess the credibility of the witnesses, and determine ultimately what weight and worth to afford any particular aspect of the proof. Id. When it comes to finding facts, we defer to the chancellor in that we will not substitute our judgment for the chancellor’s. Id. Even if we would have given greater weight to different testimony, so long as substantial credible evidence supports the chancellor’s decision, we will not substitute our opinion for the chancellor’s. Id. at (¶ 11). We turn to those factors with which Park takes issue.

a. Continuity of Care Prior to Separation

¶ 9. The chancellor found, “prior to the separation, [Casi] spent the most time with the kids in their daily routine and she was the primary care giver for the kids.” Park takes exception to the chancellor’s resolution of this factor. According to Park, the chancellor should have found that this factor favored him because he provided primary care for the children pri- or to the separation.

¶ 10. We may reverse only if the chancellor abused his discretion and the decision was manifestly wrong or clearly erroneous. Horn v. Horn, 909 So.2d 1151(¶ 20) (Miss.Ct.App.2005). “The word ‘manifest’, as defined in this context, means ‘unmistakable, clear, plain, or indisputable.’ ” Lowrey v. Lowrey, 919 So.2d 1112(¶ 21) (Miss.Ct.App.2005). Given our deferential standard of review, we cannot find that the chancellor erred.

¶ 11. The chancellor heard conflicting testimony. Casi testified that she provided primary care for the children prior to the separation. However, Park testified that he provided primary care for the children prior to the separation. Park testified that, prior to the separation, he provided primary care for the children because, among other things, he disciplined the children, he took the children to appointments with doctors and dentists, met with teachers, assisted with homework, and shared cooking duties. Park admitted that Casi tended to the children’s clothing. There was evidence that Park told the children’s teachers to contact him regarding the children, rather than Casi. Casi testified that Park misled teachers into believing that Casi, originally from Spain, could not communicate well. In any event, according to the evidence presented at trial, Park and Casi each provided some degree of care for the children prior to the separation.

¶ 12. Facing contradicting testimony, it fell to the chancellor to resolve the issue. True enough, Park testified that he and Casi each provided care, but certain evidence corroborated the chancellor’s finding. Park testified that, prior to the separation, he often worked between fifty and eighty hour work weeks. Casi’s workday ended shortly after the children’s school day ended. It is certainly reasonable to conclude that Casi would provide the bulk of primary care where Park had such demanding employment duties. As such, we cannot find that the chancellor was clearly or manifestly wrong.

b. Parenting Skills and Willingness and Capacity to Provide Child Care

¶ 13. The chancellor found:

When Casi is not at work she is with the two minor children. This indicates a commitment to her children especially during this stressful transition. During the times Park has custody of his children, he requires the assistance of his parents due to his work schedule. It is commendable that the paternal grandparents are willing to assist with the children and take an active role in their lives. Casi’s work schedule co-insides [sic] with the children’s school schedule. While the Court understands Park must work to support himself and his family, he requires child care assistance and Casi does not.

The chancellor found that this factor favored Casi.

¶ 14. Park again claims that the chancellor should have resolved this factor in his favor. Park focuses his argument on his and Casi’s respective parenting skills and their individual capacity to provide child care. From the context of Park’s argument, it does not appear that he calls Casi’s willingness to provide child care into doubt.

¶ 15. As for parenting skills, Park claims that the chancellor should have found that he possesses better parenting skills. According to Park, he possesses better parenting skills because Casi sleeps excessively when she has the children. However, there was no evidence that, when Casi had the children in the home, Casi slept to the degree that it negatively effected her capacity to provide child care. That is, there is no evidence that the children were harmed by Casi’s sleeping.

¶ 16. Park also claimed that Casi lacked parenting skills because she had an uncontrollable anger problem. Park’s mother, Valley Tritle, testified that Casi spanked Parkie when he was only weeks old. However, Casi vehemently denied that she ever struck Parkie when he was only weeks old. In fact, she testified that Valley lied about that. Accordingly, the chancellor had two versions of that story and had to decide whom she found more credible. The chancellor found Casi more credible. We are not at liberty to substitute our conclusion for the chancellor’s. Park, his mother, and his sister all testified that Casi had an uncontrollable temper, but testimony from Casi’s supervisor and her friends and coworkers indicated that, over the course of several years, Casi had never lost control of her temper or even had an emotional or angry outburst in their presence. Thus, it seemed that Casi’s “uncontrollable” temper, was not so uncontrollable. Park’s allegations notwithstanding, there was no evidence that Casi physically abused the children or that the children were afraid of Casi. Accordingly, we cannot find that the chancellor committed reversible error when she did not weigh this factor in favor of Park.

¶ 17. Park calls Casi’s parenting skills into doubt in that he claims she lacks proper judgment. Park submits that Casi lacks proper judgment because she smokes around the children. However, Casi testified that she did not smoke in the house. Instead, she smoked outside. The evidence showed that Casi occasionally smoked while the children were in the car, but that she also rolled down the window. There was no evidence that Casi’s smoking had adversely affected the children’s health. While smoking with the window down with the children in the car may not necessarily be beneficial to the children, we cannot find that it, in and of itself, equates to a lack of proper parenting skills or a lack of parental judgment to the degree that Park has better parenting skills than Casi.

¶ 18. Finally, Park submits that he possesses better parenting skills due to his involvement in the children’s extracurricular activities. Park summarizes the children’s involvement in extracurricular activities and submits that the distinguishing feature between him and Casi is that he is involved in the children’s activities and that “Casi’s only activities with the kids are watching TV and an occasional shopping and Mobile trip.” Park misinterprets the evidence. There was ample testimony that Casi took the children to various school sporting events and that the children enjoyed going to those games with Casi. Casi also testified that, due to financial reasons, she had to rent movies and watch them at home with the kids, rather than take them to the theater. What is more, Casi testified that the children were already involved in dancing with Park at least two nights a week and that the children needed time to tend to their schoolwork and to socialize with children their own age. We cannot find that the chancellor was clearly erroneous in weighing this factor in favor of Casi.

¶ 19. Park’s remaining assertions center on his capacity to provide child care. According to Park, except during his weekly Friday night line dance, he cared for the children when he was not working. Be that as it may, the children testified that, during the weeks they stayed with Park, their grandmother cooked for them and cleaned their clothes. There was ample testimony that Park relied on his parents to assist with caring for the children due to the demands of his job. Park needed his parents’ help with the children because he worked later hours and occasionally had to work overnight shifts. Park also needed his parents’ help with caring for the children when Park went line dancing on Friday nights. Casi did not need any assistance in caring for the children. Also, Casi only has to work thirteen days during the children’s summer break. Casi fulfilled that obligation by working a series of half days.

¶ 20. Additionally, Park points out that his parents have picked up the children from school since the children were in kindergarten. During the separation, Park lived with his parents. Park’s father would bring the children to his and Valley’s house after school. During the weeks that Casi had custody of the children, Casi picked them up in a matter of minutes. While Casi testified that she did not want to keep the children from then-grandparents, there was evidence that the children had the option of riding a bus from their school to the high school at which Casi was employed. Casi’s work day would end shortly afterwards, and she could take the children home with her.

¶21. According to Park, the children “should not have this long standing pattern disrupted, by having to ride the school bus, as Casi wants, and would seem in violation of the best interests of the children.” Though we cannot determine just how this argument is related to his or Casi’s parenting skills or their respective capacity to provide child care, if Park is suggesting that it is not in the children’s best interests to ride a school bus, we are not nearly prepared to find such. If Park is arguing that it is not in the best interests of the children to make their way home in any way other than by way of their grandparents, then that is not a proper consideration under this analysis. This analysis is solely focused on each parent’s parenting skills and willingness and capacity to provide child care. The simple fact is, the chancellor heard sufficient evidence to support her finding that Park needed assistance in providing child care in that Park relied on his parents, whereas Casi did not need as much assistance in providing child care because she did not have to rely on Park’s parents.

c. Employment of the Parents:

¶ 22. In determining that this factor favored Casi, the chancellor found:

Casi is employed at the George County High School as a bookkeeper and her employment ends daily when school ends. Park’s employment requires supervisory responsibilities. He is sometimes required to fill in for other employees with the ambulance service at the George County Hospital. The Court finds that it is also significant that Park claims he works fewer hours now than before the separation. The Court is concerned that Park, as supervisor may be purposely lessening his work hours for purposes of litigation which would not be the case for the long term if Park continues his employment with the George County Hospital. Park’s employment has previously required him to work odd shifts and long hours and it is not unreasonable to assume this type schedule and responsibility could resume in the future.

Park submits that the chancellor erred. We disagree.

¶ 23. At the time of trial, Park worked as the supervisor for the George County ambulance services. Park also handled payroll and, in the event that someone failed to report for work, Park had to fill-in for that absent employee. That could include working overnight twenty-four or forty-eight hour shifts. Park also testified that he was “the” Spanish translator for the emergency room and the obstetrics departments at the hospital. Finally, Park testified that, if there was a significant accident, he was one of three individuals who were capable of operating the “jaws of life” and that he would have to operate a third ambulance if one were necessary.

¶ 24. In contrast, Casi worked as a bookkeeper for the George County High School. Her workday ended shortly after the children’s school day ended. She had to work a total of thirteen days during the summer break, and she usually fulfilled her obligation by working a series of half days.

¶ 25. Park’s employment is commendable. However, it was not unreasonable for the chancellor to conclude that Park’s employment would affect his capacity to provide child care. While Park claims that he had modified his employment obligations, he also testified that he “would love” to work a forty-hour work week. The chancellor could have found that Park hoped to be able to work less, rather than that he would certainly and definitely have decreased his employment responsibilities. In light of the foregoing, we cannot find that the chancellor abused her discretion.

d. Physical and Mental Health of Each Parent

¶26. The chancellor’s found that this factor favored neither party. According to Park, the chancellor should have found that this factor favored him. Park bases his argument on his relatively good physical and mental health and the fact that the evidence showed that Casi once took Paxil for panic attacks.

¶ 27. There was no testimony that Casi’s having taken Paxil had any bearing on her ability to care for the children. The simple fact that Casi took Paxil, without more, does not justify our finding that the chancellor was clearly erroneous when she did not find that this factor favored Park.

e. Moral Fitness of Each Parent

¶ 28. The chancellor found:

Park admitted to having an extra marital sexual relationship with Pamela Sket-ters. [sic] He testified that Casi’s actions justified his extra marital affair. Vallie [sic] Tritle testified that Park had commenced a relationship with another lady in Mobile, Alabama who manages a RV resort where Park takes the children to a line dance. Vallie [sic] Tritle testified that this woman had proposed marriage to Park, at which point he terminated the relationship. Clearly, engaging in these type of relationships during the marriage does not set the appropriate example for young children. It was clear from the testimony of Park and his mother that the children had interacted with the woman from Mobile, Alabama and that they were aware of the strong feelings between their father and this third party. There was no evidence presented that Casi had engaged in moral unfitness.

Accordingly, the chancellor found that this factor favored Casi. Park submits that the chancellor erred.

¶ 29. There was evidence that Park had a significant relationship with a woman named Pamela Skeeters during the separation. Park characterized the relationship as an “affair.” Park admitted that it was a sexual relationship and that he traveled to Texas to stay with Pamela when he and Casi separated. Park testified that he traveled to Texas on five separate occasions from September of 2003 to March of 2004. Additionally, Park met Pamela in Las Vegas, Nevada, during October of 2003 and then in Orlando, Florida, during January of 2004.

¶ 30. Park claims that Casi, in effect, drove him into Pamela’s arms and that he only had an affair with Pamela after Casi told him to leave the house. Park also attempts to call Casi’s morality into question by pointing out that the children were unaware of his relationship with Pamela until Casi told them about it. However, there was substantial evidence to support the chancellor’s finding. We will not substitute our view for the chancellor’s.

¶ 31. Park cites McCraw v. McCraw, 841 So.2d 1181(¶ 17) (Miss.2003) and claims that marital fault should not be used as a sanction in awarding custody. That was not the precise holding in McCraw. Rather, McCraw stated, “Sexual misconduct ... is not per se grounds for denial of custody.” Id. (quoting Hollon v. Hollon, 784 So.2d 943(¶ 25) (Miss.2001)). In any event, the moral fitness of each parent is most certainly a factor to be examined in awarding custody. Id. at (¶ 6).

¶ 32. Finally, Park notes that he regularly took the children to church, while Casi testified that she did not go to church “as much as she should.” That Park attended church with greater regularity than Casi does not render Casi less morally fit than Park or Park more morally fit than Casi. It is simply one consideration among many. We cannot find that the chancellor was clearly erroneous when she weighed this factor in Casi’s favor.

f. Stability of the Home Environment

¶ 33. The chancellor found that this factor favored neither party. According to Park, the chancellor should have found that this factor favored him. Park again discusses his parents’ involvement in the children’s lives. We have discussed the relevant considerations regarding Park’s parents’ involvement in the children’s lives under previous headings. There is no need to repeat our analysis here. Suffice it to say, we cannot find that the chancellor was clearly erroneous. As such, we affirm the chancellor’s findings.

h. Home, School and Community Record of the Children.

¶ 34. In Park’s second issue, he disputes the chancellor’s resolution of this factor. For brevity’s sake, we combine this issue with our analysis of Park’s first issue.

¶ 35. Under this factor, the chancellor found:

The children are excellent students and have good grades in school. The children’s teacher, Zan Lumpkin, testified that the children appeared to be better prepared for lessons during the time they are with their mother. It is undisputed that both parties have assisted the children with homework.
The children attend church with both parents. They serve as acolytes at Park’s church.
Park has enrolled the children in line dancing classes. At the beginning of the trial he testified that he and the children would travel to Mobile, Alabama two nights per week to engage in line dancing at Austin’s Nightclub where Park was employed as a line dance instructor. Park testified that alcoholic beverages are available at Austin’s but he does not partake in this activity. The Court does not find that this is a proper environment within which to bring 11 year old children where they are exposed to the consumption of alcohol. On the last day of trial it was revealed that Park was also an instructor of line dance at an RV resort in Mobile, Alabama where he regularly took the children to engage in this extra curricular activity. This job led to the relationship between Park and another woman which ended with her marriage proposal to Park.
The testimony revealed that Casi’s activities with the children have been in the home and in the neighborhood where they reside.

Accordingly, the chancellor found that this factor favored Casi.

¶ 36. Park claims the chancellor’s findings were clearly erroneous. We disagree. True enough, Zan Lumpkin testified that the children’s clothes were more neatly pressed and that Tatiana’s hair was “fuzzier” during the weeks Park had custody of the children. Lumpkin also testified that there was no difference in the children’s homework during the weeks that Park had the children and that, regardless of whether Park or Casi had custody of the children during a given week, the children occasionally left materials at either Park’s or Casi’s house. Additionally, while the chancellor found that Park took the children to a nightclub on Friday nights and that alcohol was served there, there was no testimony to that. To the contrary, Park testified that he never took the children to the nightclub on Friday nights. Instead, Park testified that he left the children with his parents when he went to that nightclub. Still, given the bulk of the testimony and the numerous considerations under the Albright factors, we cannot find that this one factual error renders the chancellor’s entire decision clearly erroneous.

¶ 37. Park then, yet again, rehashes his involvement in the children’s extracurricular activities and claims that Casi “does nothing with the children but shop and watch television.” Again, that is patently false and contrary to the evidence. The evidence showed that Casi took the children to various high school sports activities, that she lacked funds to take the children to certain other activities, and that Casi felt as though the children were disproportionately involved in dance classes and that, because of that disproportionate involvement, the children needed to tend to their school work and to socialize with their friends so they did not have time for any additional extracurricular activities.

g. Other Relevant Factors

¶ 38. Under this heading, Park submits that the chancellor erred when she did not adequately quote his witnesses. True enough, the chancellor did not quote every one of Park’s witnesses in her findings of fact and conclusions of law, but that does not render her decision clearly erroneous. She mentioned many of Casi’s witnesses but only because Park, Park’s mother, and Park’s sister claimed that Casi had an uncontrollable temper, and that Casi’s coworker’s and friends all testified that they had never witnessed such a temper. The chancellor chose to believe Casi’s witnesses over Park’s. We are not prepared to substitute our view for the chancellor’s.

III. WHETHER THE COURT USED AN INCORRECT LEGAL STANDARD IN AWARDING CUSTODY, AMOUNTING TO REVERSIBLE ERROR.

¶ 39. In this issue, Park claims that the chancellor committed reversible error when she gave Casi “paramount care, custody and control” of the children. Park cites Section 93-5-24 of the Mississippi Code Annotated (Rev.2004). Pursuant to Section 93-5-24:

(1) Custody shall be awarded as follows according to the best interests of the child:
(a) Physical and legal custody to both parents jointly pursuant to subsections (2) through (7).
(b) Physical custody to both parents jointly pursuant to subsections (2) through (7) and legal custody to either parent.
(c) Legal custody to both parents jointly pursuant to subsections (2) through (7) and physical custody to either parent.
(d) Physical and legal custody to either parent.

It is clear from the context of the chancellor’s findings of fact, including the chancellor’s provisions regarding Park’s visitation, that the chancellor awarded sole physical custody to Casi. It is likewise clear from the chancellor’s judgment that the chancellor awarded sole legal custody of the children to Casi.

IV. WHETHER THE COURT ABUSED ITS DISCRETION AND COMMITTED MANIFEST ERROR IN GRANTING CASI PERIODIC ALIMONY.

¶ 40. In his final issue, Park claims the chancellor erred when she awarded Casi $375 per month in periodic alimony. Park submits that the chancellor (a) failed to properly consider equitable distribution before she considered whether alimony was necessary, (b) failed to properly consider his and Casi’s wage earning capacities, and (c) over-emphasized his marital misconduct and under-emphasized Casi’s marital misconduct. We are mindful that alimony awards are within the discretion of the chancellor. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). We will not reverse the chancellor’s decision unless the chancellor committed manifest error, an abuse of discretion, or applied an erroneous legal standard. Id.

a. Equitable Distribution.

¶ 41. Park draws our attention to Cosentino v. Cosentino, 912 So.2d 1130 (Miss.Ct.App.2005). In Cosentino, this Court found reversible error when a chancellor did not properly consider certain relevant equitable distribution factors discussed in Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994) prior to finding that an award of periodic alimony was appropriate. Id. at (¶ 12). “If after the equitable distribution of the marital property, both parties have been adequately provided for, then an award of alimony is not appropriate.” Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994).

¶ 42. When the chancellor ordered each party to submit proposed findings of fact and conclusions of law, the chancellor specifically noted that equitable distribution was to be considered before alimony was to be discussed. In the chancellor’s findings of fact and conclusions of law, the chancellor stated that, at trial, the “parties stipulated ... to pay the marital debt with proceeds from the sale of the marital home.” The chancellor also ordered the parties to split equally the debt payable to Merchants and Marines Bank. The chancellor detailed just how Park and Casi were to equally split the two mortgages on the marital home until it could be sold. The chancellor then stated, “[i]n accordance with the stipulation of the parties, the personal property of the marriage was valued and distributed as set out in Exhibit No. 20 with Casi receiving personal property valued at $6,399.00 and Park receiving personal property valued at $3,230.00.” Accordingly, the chancellor considered equitable distribution in her findings of fact and conclusions of law. Afterwards, the chancellor considered whether Casi should receive alimony.

¶ 43. Further, according to the judgment:

the parties stipulated at trial to pay the marital debt with proceeds from the sale of the marital home with the exception of the debt to Merchants and Marine Bank. The Court, after considering the evidence, finds that the debt was incurred during the course of the marriage and the Court finds that both parties shall be equally responsible for payment of the debt to Merchants and Marine Bank.
The Court finds that until the home is sold, [Casi] shall retain the exclusive use and possession of the home and the parties shall equally divide the current first mortgage payment which encumbers the home until the home is sold. Likewise, the parties shall equally divide the payment of the second mortgage encumbering the marital home. The shared payments shall be accomplished by [Park] forwarding his 1/2 of the payments to [Casi] by the 1st day of each month and [Casi] shall be responsible for forwarding the same to appropriate financial institutions.
The Court finds that in accordance with the stipulations of the parties, the personal property of the marriage was valued and distributed as set forth in Exhibit No. 20, with Casi ... receiving personal property valued at $6,399.00 and Park ... receiving personal property valued at $3,230.00.

The chancellor then discussed the need for alimony. Accordingly, it is clear that the chancellor considered equitable distribution prior to considering alimony. That is, the chancellor noted that the parties stipulated to the distribution of their marital property and the chancellor divided the marital debt. As such, we cannot find that the chancellor erred.

b. Wage-Earning Capacities.

¶ 44. Park argues that the chancellor failed to consider his and Casi’s actual earnings. According to Park, in Casi’s financial declaration, Casi listed her income, exclusive of child support, at around $1,000 per month. Park claims that Casi omitted income she received for taking tickets at school sporting events. Park notes that Casi made $10 per hour when she took tickets and that she sometimes earned as much as $300 per month. There is no evidence that the chancellor failed to consider Casi’s additional income. That is, the chancellor did not specifically refer to Casi’s monthly income. Likewise, the chancellor did not specifically refer to Park’s income. It is possible that the chancellor considered Casi’s additional income, and it is also possible that the chancellor did not. Given our deferential standard of review, we cannot find clear or manifest error.

¶ 45. Next, Park claims that the chancellor failed to consider certain relevant facts regarding his income. First, Park submits that the chancellor improperly calculated his wage-earning capacity. According to Park, the chancellor should have realized that Park’s wage documents were based on a variable hourly basis and that he could not work fifty hour work weeks as he once did. Park’s testimony indicated that he would like to work a forty hour work week. We cannot find that the chancellor erred by referencing Park’s actual work hours instead of Park’s hopeful or tentative work hours.

c. Misconduct.

¶ 46. Park submits that the chancellor placed undue emphasis on the affair he had with Pamela Skeeters and too little emphasis on Casi’s misconduct. According to Park, Casi provoked the separation because she withheld physical intimacy and, on one occasion, she hit Park and yelled at him that she did not need him or any other man, and told him to leave the house. Casi did not deny that she did so. Casi also testified that she did so after Park nearly “kicked her door in” and “called her an ugly name.” Park admitted that he called Casi a “b-.”

¶ 47. Park cites Culver v. Culver, 383 So.2d 817 (Miss.1980) for the concept that lack of physical intimacy is grounds for a divorce for habitual cruel and inhuman treatment. Be that as it may, Park and Casi agreed to divorce based on irreconcilable differences, so it is entirely irrelevant that lack of physical intimacy is grounds for a fault-based divorce. In considering whether one party should receive alimony, it is within the chancellor’s discretion to weigh each party’s marital fault. There was substantial evidence to support the chancellor’s decision. We will not substitute our opinion for the chancellor’s.

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

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

      . During the course of the proceedings, the parties frequently referred to Park Austin Tritle as "Parkie.” To distinguish the father from the son, we will do the same.

      . During their separation, Park and Casi voluntarily entered a temporary agreement by which Park and Casi shared custody of the children. Park had the children one week and Casi had the children the next week. Park also voluntarily paid Casi $400 in child support every month.

      .The parties went before the chancellor on January 11-12, 2005. Because Park and Casi had not finished presentation of evidence, the matter was reset for February 22, 2005. Again, the chancellor had to reset the matter for May 10, 2005. The trial concluded on May 10 th.