text:
    OPEN MRI, LLC, Compass Imaging, LLC, and Cedar Lake Open MRI, LLC, Appellants, v. MISSISSIPPI STATE DEPARTMENT OF HEALTH and Coastal County Imaging Services, LLC, Appellees.
    No. 2005-SA-00799-COA.
    Court of Appeals of Mississippi.
    Oct. 10, 2006.

      Thomas L. Kirkland, Jr., Allison C. Simpson, Andy Lowry, Ridgeland, attorneys for appellants.

      Stan T. Ingram, James L. Pettis, III, Pamela S. Ratliff, Jackson, Sarah E. Berry, Flowood, attorneys for appellees.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Open MRI, LLC, Compass Imaging, LLC, and Cedar Lake Open MRI, LLC, (collectively, the “Appellants”) appeal the grant of a certificate of need to Coastal County Imaging Services, LLC, (“Coastal”) to provide open magnetic resonance imaging (“MRI”) services. The Mississippi State Department of Health (the “Department”) granted the certificate of need.

¶ 2. On the initial appeal, the Hinds County Chancery Court affirmed. In this appeal, the Appellants argue that the Department erred: (1) in awarding a certificate of need based on incorrect information; (2) in crediting Coastal with providing a full range of diagnostic imaging modalities; (3) in “blindly” accepting the applicant’s misleading financial projections and failing to recognize the projections were not based upon generally accepted accounting principles as required and (4) in disregarding and violating its own rules. We find no error and affirm.

FACTS

¶ 3. Coastal is a closely held Mississippi limited liability company, made up of six physicians. Coastal is a radiology practice group. On December 23, 2003, Coastal applied for a certificate of need to provide open MRI services to patients, including Medicare and Medicaid recipients. On February 13, 2004, the Department requested that Coastal provide supplemental information. The Department asked that the information be received by March 1 or the application would be held over until the next review cycle. Coastal submitted some of the requested supplement on March 10. The Department deemed the application complete on April 1, and set it for review during the April review cycle. Coastal submitted the remainder of the requested information on April 26.

¶ 4. In May, the Department’s staff analysis was conducted. The staff analysis considered all of Coastal’s submitted information. The staff analysis recommended that the Department grant the certificate of need. The staff analysis stated, “[i]n accordance with Section 41-7-197(2) ... any person may request a public hearing on this project within 20 days of publication of the staff analysis. The opportunity to request a hearing expires on June 3, 2004.”

¶ 5. The Appellants requested a hearing. The Appellants offer open MRI services in the same general service area. However, they are not qualified to accept Medicare and Medicaid patients. The hearing was held on August 31 through September 2, 2004. The hearing officer, David Scott recommended approval of the certificate of need. He adopted Coastal’s factual findings. Thereafter, the State Health Officer issued a final order and concurred with the findings of the hearing officer.

STANDARD OF REVIEW

¶ 6. When this Court reviews a decision by a chancery or circuit court concerning an agency action, it applies the same standard of review that the lower courts are bound to follow. Miss. Sierra Club v. Miss. Dep’t of Envtl. Quality, 819 So.2d 515, 519(1115) (Miss.2002). The standard of review of the Department’s order on a certificate of need is set by statute:

The order shall not be vacated or set aside, either in whole or in part, except for errors of law, unless the court finds that the order of the State Department of Health is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the State Department of Health, or violates any vested constitutional rights of any party involved in the appeal.

Miss.Code Ann. § 41 — 7—201 (2)(f) (Rev. 2005). This is merely a restatement of the standard of review applicable to administrative agency decisions. Miss. State Dep’t of Health v. Natchez Cmty. Hosp., 743 So.2d 973, 976(¶9) (Miss.1999). The court must look at the full record in deciding whether substantial evidence exists to support the agency’s findings. Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 427(¶ 20) (Miss.2000). Where a judge adopts a party’s proposed findings verbatim, the usual deference to fact findings is somewhat lessened, although it is not de novo. Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1264-65 (Miss.1987). In such a case, the appellate court must review the findings “with a more critical eye to ensure that the trial court has adequately performed its judicial function.” Id. at 1265. This rule has been applied to administrative agencies as well. Kitchens v. Jerry Vowell Logging, 874 So.2d 456, 461(¶ 11) (Miss.Ct.App.2005); Greenwood Utils, v. Williams, 801 So.2d 783, 788(¶ 14) (Miss.Ct.App.2001).

ANALYSIS

I. Did the Department award the certificate of need based upon incorrect information?

¶ 7. The Appellants’ initial issue concerns the number of existing MRI units in the area. The number of existing MRI units are used by the Department to assess Coastal’s evidence of need for any additional units. Coastal counters that this confusion was cleared up at the hearing, and the Department correctly accounted for all existing units.

¶ 8. The State Health Plan sets out several criteria for a certificate of need to be granted. The first is designated as the “Need Criterion.” To satisfy the Need Criterion, “[t]he entity desiring to acquire or otherwise control the MRI equipment must document that the specified equipment shall perform a minimum of 1,700 procedures per year by the end of the second year of operation.” Miss. State Health Plan, FY %00h at XI-46.

¶ 9. In the case of freestanding facilities such as Coastal, the affidavit method allows the applicant to establish this criteria. The Department accepts affidavits by physicians, wherein they estimate how many referrals they expect to give to Coastal. If, by virtue of the affidavits submitted, Coastal can show that it expects to perform at least 1,700 procedures per year, by the end of the second year, the Need Criterion is satisfied. Appellants admits that Coastal satisfied the Need Criterion through the use of the affidavit method. Specifically, even discounting the alleged “untimely” affidavits, affidavits were submitted into evidence that Coastal was expected to perform 1,884 procedures in the second year.

¶ 10. The Department then does a utilization calculation based on the number of existing MRI units in order to credit or discredit these affidavits. The Department takes the total number of MRI procedures performed in the area, divided by the total number of operating units in the area, to come to an average number of procedures per unit. This was further explained during the testimony of Rachel Pittman, the Department’s Chief of the Division of Health Planning and Resource Development, when she testified:

A. We look at historical procedures to determine how many are being done in the area, and also to determine whether there is additional capacity in that area.
A. So if — say if — if you look at the total for the area and it does — and calculate and it doesn’t come out, if they’re not doing — if they’re not at optimum, rather the total procedures, then we would not consider there to be further capacity.
BY HEARING OFFICER:
Okay. Where — where in the criteria does it provide that there has to be additional capacity? Is there any — anywhere in this that says that there has to be additional capacity in order to grant a CON?
A. I don’t believe so.
BY HEARING OFFICER:
Okay. So let’s — let’s just look at General Hospital Service Area 7. Let’s make an assumption that every one of these, and I’m just throwing out a hypothetical to you, every one of these were only doing 1,000 procedures each, okay, but you have affidavits from — from doctors that say, “Oh, you know, we’ll provide enough procedures that this new one will do 2,000,” okay, clearly meet the 1,700 requirement, but none of the others are doing that many, how would that affect the Department’s recommendation?
A. If none of the others are doing the — the numbers that the applicant is projecting, then we will consider that their — their—we would not consider that their projections would be accurate because the area’s not providing the referrals—
BY HEARING OFFICER: Okay.
A. —sufficient enough to come up with that number.
BY HEARING OFFICER:
So it provides some credibility to the— to the affidavits?
A. It does, yes, sir.

¶ 11. Coastal is located within an area designated by the Department as General Hospital Service Area 7 (“GHSA-7”). This area encompasses Pearl River, George, Stone, Harrison, Jackson, and Hancock counties. The staff analysis listed thirteen fixed and/or mobile units within the area. The 2004 State Health Plan accounted for the same thirteen units in the GHSA-7 area. Miss. State Health Plan, FY 200Ji. at XI-17. The figure is based on twelve units actually existing and operating in the area during fiscal year 2002, and one unit for which a CON was granted in Orange Grove. The Orange Grove CON was granted in 1997, but, as of the hearing in 2004, the hospital had not obtained the unit. Therefore, the staff analysis counted twelve units for its calculations.

¶ 12. The staff analysis determined that the GHSA-7 units were performing an average of 2,045 procedures in 2001, 2,394 procedures in 2002, and 2,648 procedures in 2003. The optimum level set by the Department is 2,000 procedures. The Department concluded that units in GHSA-7 have been performing above the optimum level and will continue to do so, as there was evidence that the total procedures will continue to increase each year. Therefore, the staff analysis considered the estimates produced by the affidavits to be accurate.

¶ 13. At the hearing, Pittman further testified:

Q. Just to make sure we understand this is 2004. Tell me: How many units are there in — in the Hospital Service Area 7?
A. There are 13 CON approved, with 12 operating.
Q. Twelve operating? Okay. Now, when you consider that there’s 12 here, and testimony will show later on that the contestants in this case is Open MRI, in — in that State Health Plan, they credited the contestants with what? One mobile unit?
A. Right.
Q. If you will look at Page 3 of the staff analysis. If you would, please. Again, for the purpose of the application under the fiscal year 2004 Plan, there were only, as you stated, 12 operating units in Service Area 7. After' — for fiscal year 2003 and— and after that, then the contestants in this case would only have been operating with two fixed rather than a mobile?
A. No. Actually, they would have two fixed and one mobile.
Q. Okay. And that would be how many total units, then?
A. Fourteen.

¶ 14. On cross-examination, counsel for Open MRI questioned Pittman about the number of MRI units listed in the staff analysis:

Q. Okay. Now, we’re going to get down to — Open MRI. Do you see that?
A. Yes.
Q. Now, have you had a chance to go back and look at the CON file for Open MRI to determine how many sites and units they have?
A. I’ve looked at the files. I can’t remember exactly how many sites they serve with the mobile unit, but as of the 2002 data, they had one unit.
Q. I’m sorry?
A. I think they only had one unit as of 2002 data that’s in the Plan.
Q. Okay. Do you know how many units they have today?
A. I believe they have three today, two fixed and one mobile.
Q. Okay. Now, the MRI split and the change of those from mobile to fixed sites occurred in 2002, correct?
A. That’s correct.
Q. So they would have been known and should have been part of the 2004 State Health Plan, correct?
A. No.
Q. And why is that?
A. The 2004 State Health Plan became effective July—
Q. Of 2003?
A. Okay. Okay. They become effective July 3 of 2003; however, the data— the — the letters that authorized the mobile — the fixed unit were August of 2002 as well as — December of 2002. The information contained here for 2002, I think there’s a cutoff date of maybe like April of 2002 when they — when they got all the information in so it was — that was probably too late to be included in the 2002 data.

During re-direct, Pittman clarified:

Q. You would agree to me — agree with me that for the fiscal year 2004 State Health Plan, the controlling date is the end of fiscal year 2002? Those are the numbers set forth? Is that correct?
A. That’s correct?
Q. And so as of June 30, 2002, you would agree that the contestants in this matter were still operating a mobile unit? They had not converted any of those — any of [sic] that mobile sites [sic] to a fixed unit?
A. That’s correct.
Q. Okay. So look back again and tell us and for the record how many operating units there were as of June 30, 2002, the effective date or the operative date that we consider the 2004 Health Plan.
A. It’s 12.

¶ 15. Coastal’s health planning expert Dr. John C. Hyde, III, did count the two additional Open MRI units in his calculations, and concluded that even with fourteen units, the average procedure per unit was still well above the optimum range.

¶ 16. In 2001, there were 24,535 procedures in GHSA-7. With fourteen units, this is an average of 1,753 procedures per unit. In 2002, there were 28,731 procedures. With fourteen units, this is an average of 2,052 procedures per unit. In 2003, there were 31,834 procedures. With fourteen units, this is an average of 2,274 procedures per unit. The evidence was that the number of procedures projected into the future was expected to continue to grow. There was further testimony that local Medicare and Medicaid patients were forced to go to Jackson or Mobile for open MRIs, or go without them altogether. Dr. Hyde testified that if Coastal opens, these patients would be referred to Coastal instead, which further increases the amount of procedures expected to be performed in the future. Even counting all fourteen units, the units existing and operating in the area at the time were all performing above the optimum level and were predicted to perform even more procedures the next year. Therefore, the Department’s decision to give credibility to the affidavits presented by Coastal was supported by the evidence.

¶ 17. Appellants nevertheless argue that there were a total of sixteen existing units and refusal to count all sixteen was arbitrary and capricious and against the evidence. There were fourteen units in existence and actually operating at the time of the hearing. As set out previously, there was one outstanding certificate for Orange Grove. At the time of the hearing, there was an additional outstanding certificate for Hancock County. Appellants insist that the Orange Grove and Hancock certificates be included in the calculation.

¶ 18. Neither of these hospitals, Orange Grove and Hancock, had obtained a unit. There was no evidence that they would ever obtain a unit. At the time of the hearing, Orange Grove’s CON had been outstanding for seven years, and Orange Grove had never obtained a unit. The testimony revealed that the Department has been consistent in its practice in counting actual, existing units only. This decision may well reflect the Department’s experience that just because a facility gets permission to install an MRI unit does not mean it ever will. The Department’s refusal to count non-existent, non-operational units, was therefore not arbitrary and capricious.

¶ 19. We are nevertheless asked to judge whether the Department’s procedure of counting or Appellants’ procedure is the better method. While either practice seems reasonable, we cannot say the Department erred. The Department, the applicant, and contestants are bound by the numbers as reflected in the State Health Plan in effect at the time of the application. This is because no certificate of need shall be granted unless the proposal “substantially complies with the projection of need as reported, in the state health plan in effect at the time the application for the proposal was submitted.” Miss. Code Ann. § 41-7-193(1) (Rev.2005) (emphasis added). Additionally, the State Health Plan is “the sole and official statewide health plan for Mississippi which identifies priority state health needs.... ” Miss.Code Ann. § 41-7-173(s) (Rev.2005). Regardless of how many units and certificates may have been in existence at the time of the hearing, the State Health Plan in effect at the time of Coastal’s application reflected twelve units operating, with one certificate outstanding. Whether we count this as twelve or as thirteen, there were enough procedures in GHSA-7 to exceed the optimum level set by the Department. This issue has no merit.

II. Did the Department err when it credited Coastal with providing a full range of diagnostic modalities?

¶20. Appellants next argue that there was no evidence that Coastal would provide a full range of diagnostic modalities, and therefore, the CON should not have been granted. Coastal responds that all that is required is that Coastal have these modalities available to its patients, and that Coastal does not need to be the provider.

¶ 21. The State Health Plan states:

An applicant desiring to offer MRI services must document that a full range of diagnostic imaging modalities for verification and complementary studies will be available at the time MRI services begin. These modalities shall include, but not be limited to, computed tomography (full body), ultrasound, angiogra-phy, nuclear medicine, and conventional radiology.

Miss. State Health Plan, FY 2004, at XI-47. Pittman testified that “available” means either through the applicant or some other source. She testified that if a doctor at Coastal had staff privileges at a hospital where a full range was available, this would satisfy the availability criteria.

¶ 22. Dr. Frank Alan Lovell testified that Coastal will provide the open MRI and conventional radiology at its clinic. As for the other services, Coastal’s physicians will use their staff privileges at local area hospitals, Memorial Hospital and Garden Park Hospital in Gulfport, and Hancock Medical Center in Bay St. Louis, which provide a full range of modalities minus the open MRI. With their staff privileges, they are able to order any procedures that they need. Coastal has a contract with Garden Park. As for the other two, Coastal’s physicians are the only radiologists that work at those hospitals.

¶ 23. In response, Appellants’s healthcare planning and financial analysis expert, Dan Sullivan testified:

I mean, to me, that doesn’t really address the criterion because, first of all, radiologists don’t refer patients for procedures. Other doctors do.
You know, if the patient’s being referred for a procedure that — that Coastal doesn’t have, then that doctor basically — I mean, they might say call the hospital and they have it done, but there’s no formal linkage there to make sure that a full range of procedures are available to those patients at the time they present for MRI.

Sullivan was unable to discount the fact that the hospital would accept the referral from Coastal’s physicians. On cross-examination, Sullivan admitted that the Appellants do not provide a full range of diagnostic procedures at their sites either:

Q. And I assume if they have patients that need nuclear medicine services, they have to make those services available at other providers?
A. I think they would probably tell the referring physician, “We don’t offer that here, you need to call someone else.”
Q. Right. And, therefore, make it available someplace else?
A. That’s true.

In other words, Appellants’ expert admitted that to satisfy the “availability” criterion, all that is needed is that the applicant makes sure someone will refer the patient to another facility that provides the other needed modalities. There is nothing to indicate that Coastal could not make use of this tactic of making sure the original referring physician locates a facility that provides the other needed procedures. Furthermore, Coastal has a better ability to directly refer its patients to coast hospitals, as none of Appellants’ doctors have staff privileges at any coast hospitals. This issue has no merit.

III. Did the Department base its decision on faulty financial projections?

¶ 24. Appellants next argue that Coastal’s financial projections were faulty because (1) they were based on the cash accounting basis rather than the accrual accounting basis, (2) Coastal projected to pay their staff barely minimum wage, and (3) the projection was based on a less expensive MRI unit than was later sought.

A. Accrual basis versus cash basis

¶ 25. Another criteria an applicant must satisfy is the economic viability of the proposal. Specifically, the applicant must demonstrate, “[t]he immediate and long-term financial feasibility of the proposal, as well as the probable effect of the proposal on the costs and charges for providing health services by the institution or service. Projections should be reasonable and based upon generally accepted accounting procedures.” Certificate of Need Revieiv Manual at 57 (May 13, 2000).

¶26. Charles Rafferty testified on behalf of Coastal as an expert in financial analysis of medical practices. He testified that he could not tell from Coastal’s financial statement whether the MRI unit was to be leased or purchased. If the unit was to be purchased, then Coastal’s projections did not conform to generally accepted accounting principles (“GAAP”), because the projections did not account for depreciation. If the unit was to be leased, then the projections did conform to the GAAP, because there would be no need to account for depreciation; rather, the monthly rent was expensed accordingly. In rebuttal, Dr. Lovell testified that the projections and application were based on the assumption that the unit would be leased. Rafferty was recalled, and he testified that the projections did conform with GAAP. This issue has no merit.

B. Staff salaries

¶ 27. The only staffing requirements placed on an applicant is that the applicant must document that certain staff will be available — a director and a full-time MRI technologist-radiographer. Miss. State Health Plan, FY 2004. at XI-48. The State Plan does not specify the amount of staff salaries.

¶ 28. Coastal plans on hiring two full-time MRI technologists, a full-time receptionist, and a clerk. Coastal projected employee salaries to be $141,960 the first year, $147,638.40 in year two, and $153,543.94 in year three. Dr. Lovell testified that an MRI technologist makes between $50,000-$60,000 a year. Accepting the lower figure, this leaves $41,960 left in the employee salary budget to pay the two remaining employees. If the receptionist and file clerk were paid equally, they would receive $20,980. This reflects an hourly wage of $10.09. This is well above the minimum wage. Taking the higher tech salary of $60,000, this leaves $21,960 for the receptionist and clerk. Paid equally, each would receive $10,980 per year. This reflects an hourly wage of $5.28, which is still above the minimum wage of $5.15 per hour.

¶ 29. There was later testimony during Dr. Lovell’s cross-examination in which he was asked again to break the compensation down by employee. He said he had not thought about an exact break down, but he would estimate $75,000 for the supervising MRI tech Randy Patterson, $55,000 for the other MRI tech, $20,000 for the receptionist and $10,000 for the clerk. He said the clerk position may be a part-time position. These figures exceed the $141,960 budgeted for salaries in the first year. However, these individual figures were not certain as Coastal had not begun hiring employees. Dr. Lovell stood by the projected salary total, but was unsure of how the individual salaries would breakdown.

¶ 30. We find there was substantial credible evidence to support a finding that Coastal’s employee salary projections were reasonable. This issue has no merit.

C. Subsequent evidence of more expensive equipment

¶ 31. Finally, Appellants seek to attack or impeach the Department’s order by asserting that it was based on Coastal’s “positively misleading” representation as to what equipment it planned to use. Essentially, we are asked to review the credibility of testimony and overturn a factual finding based on faets outside the record that occurred subsequent to appeal.

¶ 32. Coastal’s application and witnesses indicated that the MRI unit it intended to use was a .23 Tesla. The unit cost is $139,156.80 per month. Although Coastal researched other machines, such as a .35 Tesla, Coastal had determined that it was going to use a .23 Tesla machine. Thus, there was substantial credible evidence to support a finding that Coastal’s financial projections were accurate.

¶ 33. On appeal, the Appellants contend that, a month after prevailing in chancery court, Coastal wrote a letter to the Department announcing its intention to substitute a GE Sigma Ovation scanner. The Appellants contend that this was the same unit that Coastal had denied it was considering during the hearing. The Appellants argue that this was a “bait and switch” which makes a new application necessary. In this appeal, we review the December 16, 2004 final order that approved Coastal’s application for a certificate of need. We cannot set this order aside unless there was an error of law, a factual finding that was not supported by substantial credible evidence, the Department exceeded its jurisdiction, or the Department violated any constitutional rights. Miss.Code Ann. § 41 — 7—201 (2)(f) (Rev.2005). We find no such error. By basing its opinion on substantial credible evidence presented at the hearing, the Department transgressed no error of fact or law. This issue has no merit.

TV. Did the Department violate its own rules?

¶ 34. Appellants claim that the Department violated its own rules when it accepted additional affidavits from Coastal on March 10 and again on April 26, even though it had given Coastal the deadline of March 1.

¶ 35. Coastal submitted its application on December 17, 2003. Coastal was not notified until two months later, February 13, that its application was deemed incomplete. This was despite the fact that the rules require the Department to review an application for completeness within fifteen days of receipt. Certificate of Need Review Manual at 27. Among the additional information Coastal was required to submit was additional physician affidavits. The Department’s February 13 letter stated, “Failure to provide the requested information ... by March 1, 2004, shall result in the deferral of your project to a later review cycle. We will notify you within fifteen (15) days of receiving your information as to whether your application is complete.” Indeed, Pittman testified that when late information is received, the review usually gets bumped to the next review cycle. Nevertheless, the Manual provides, “An applicant may submit additional material until the first day of the first month of the review cycle (the day the application is entered into review).” Id. at 28. The Department’s quarterly review cycles begin January 1, April 1, July 1, and October 1. Id. at 30.

[AJffected persons may submit material to the Department at any time during the first 30 days following the date the application is deemed complete. Entry of an application into review shall cause a notice ... to be published ... and ... the public is invited to comment on the application for a period of thirty (30) days....

Id.

¶ 36. Under the rules, Coastal had until the first day of the review cycle, April 1, to submit .additional information. The Department accepted the March 10 affidavits and deemed Coastal’s application complete April 1. This began the thirty-day public comment period. More affidavits were given April 26 and accepted by the Department. Appellants argue that accepting the March 10 and April 26 affidavits violated their rights to notice and a hearing. However, the thirty-day comment period did not start until the application was deemed complete on April 1. So, on April 1, Appellants had notice of the March 10 affidavits and had the ability to comment on Coastal’s application. There were only four days left in the comment period when the April 26 affidavits were submitted. The record is silent as to whether the comment period was extended accordingly.

¶ 37. The staff analysis, which took all these affidavits into account, was publicized and stated, “In accordance with Section 41-7-197(2) ... any person may request a public hearing on this project within 20 days of publication of the staff analysis. The opportunity to request a hearing expires on June 3, 2004.” Appellants had notice, a pre-hearing discovery period, and their statutorily-guaranteed right to a public hearing on all the information several months later. Miss.Code Ann. § 41-7-197(2) (Rev.2005).

¶ 38. We need not decide if the later public hearing on all the information cured the lack of a full comment period on the April 26 affidavits. Indeed, we may assume that since the statute provides contestants both these rights (public comment period and public hearing), that one may not be substituted for the other. Regardless, the evidence indicated, and Appellants admit, that even discounting the April 26 affidavits, Coastal satisfied its showing of need, i.e., that it would perform at least 1,700 procedures by the end of the second year. This issue has no merit.

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

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

      . A standard or non-open MRI unit is a barrel-like machine in which the patient is laid on his back within the machine's narrow, tunnel-like opening. The patient is totally encompassed and surrounded by the machine itself. There are natural problems caused by the narrow or confining space of a standard or non-open MRI unit. For example, patients with claustrophobia cannot tolerate the confinement, and obese individuals cannot fit into the narrow opening. Also, a standard or non-open MRI unit is very loud for the patient.
      An “open MRI” unit does not enclose the patient. Open MRI units can accommodate claustrophobic and obese patients. Also, open MRI units are able to operate much more quietly during the procedure.

      . There was no other provider of open MRI services on the Coast that was qualified to accept both Medicare and Medicaid patients.

      . The State Health Plan is "the sole and official statewide health plan for Mississippi which identifies priority state health needs and establishes standards and criteria for health-related activities which require certificate of need review....” Miss.Code Ann. § 41 — V—173(s) (Rev.2005). Section 41-7-185(g) empowers the Department to prepare, review, and revise the State Health Plan. No certificate of need shall be granted unless the proposal "substantially complies with the projection of need as reported in the state health plan in effect at the time the application for the proposal was submitted.” Miss.Code Ann. § 41-7-193(1) (Rev.2005).


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Phillip ELLIOTT, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01043-COA.
    Court of Appeals of Mississippi.
    Oct. 10, 2006.

      Phillip Elliott, Appellant, pro se.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
    Before MYERS, P.J., GRIFFIS, BARNES and ISHEE, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Phillip Elliott pled guilty, to the charges of sale of marijuana, more than an ounce less than a kilogram, and sale of cocaine. These were two of the four counts of his indictment, and the remaining counts were dismissed. For the sale of marijuana count, Elliott was sentenced to serve five years in the custody of the Mississippi Department of Corrections, was ordered to pay a fine of one thousand dollars ($1000), and was ordered to serve five years post release supervision. On the sale of cocaine count, Elliott was sentenced to serve twelve years in the custody of the Mississippi Department of Corrections, was ordered to pay a fine of five thousand dollars ($5,000), and was ordered to serve five years post release supervision.

¶ 2. Elliott filed a motion to vacate sentence and conviction, which the court treated as a petition for post-conviction relief. The motion was denied, and this appeal followed. Elliott raises two issues for our review: (1) he received ineffective assistance of counsel, and (2) the indictment was invalid and legally insufficient. We find no error and affirm.

STANDARD OF REVIEW

¶ 3. 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). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

I. Whether Elliott received ineffective assistance of counsel.

¶ 4. To prevail on his claim that his counsel was ineffective, Elliott must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Elliott, and we will measure the alleged deficiency within the totality of circumstances. Hiter v. State, 660 So.2d 961, 965 (Miss.1995); Carney v. State, 525 So.2d 776, 780 (Miss.1988). However, a presumption exists that the attorney’s conduct was adequate. Burns v. State, 813 So.2d 668, 673(¶ 14) (Miss.2001).

¶ 5. Elliott argues that his counsel had a duty to investigate the background of the police informant and that his failure to do so resulted in a violation of his due process rights. Elliott’s brief alleges that the police informant was operating illegally. Elliott does not argue that he would not have pled guilty but for the ineffective assistance of his counsel, or that he was prejudiced by his attorney’s alleged failure. Spry v. State, 796 So.2d 229, 232(¶ 11) (Miss.2001). All we have to support Elliott’s claim are his allegations. In cases involving post-conviction relief, “where a party offers only his affidavit, then his ineffective assistance claim is without merit.” Lindsay v. State 720 So.2d 182, 184(¶ 6) (Miss.1998); Covington v. State, 909 So.2d 160, 162(¶ 9) (Miss.Ct.App.2005). Accordingly, Elliott’s claim of ineffective assistance of counsel is without merit.

II. Whether the indictment was invalid for failure to state the specific amount of cocaine.

¶ 6. Elliott next argues that the indictment is invalid because it failed to state the specific amount of cocaine that he was charged with selling. First, Elliott pled guilty to the crime. It is a well-settled principle of law that a valid guilty plea admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment against a defendant. Reeder v. State, 783 So.2d 711, 720(¶ 36) (Miss.2001) (citing Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990)). Therefore, by pleading guilty, Elliott waived his right to appeal based upon the indictment. Notwithstanding this waiver, however, we address the substance of Elliott’s argument.

¶ 7. Mississippi Code Annotated Section 41-29-139 (Rev.2005) defines the crime for which Elliott was convicted:

Except as authorized by this article, it is unlawful for any person knowingly or intentionally: (1) to sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance.

There is no requirement that a specific amount of a controlled substance be found for a person to be convicted under this section.

¶ 8. Elliott was sentenced under Mississippi Code Annotated Section 41-29-139(b) (Rev.2005), which provides the sentencing standards for a conviction under subsection (a) for crimes involving cocaine. This section also contains sentencing standards for crimes involving marijuana. This appears to be the point of Elliott’s confusion. For crimes involving marijuana, sentencing may vary depending upon the amount of the marijuana involved. Such limitations do not apply to crimes involving cocaine. Accordingly, this issue is without merit.

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

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


text:
    Dennis BRACKEN, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01423-COA.
    Court of Appeals of Mississippi.
    Oct. 10, 2006.

      William C. Bristow, Tupelo, attorney for appellant.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before KING, C.J., SOUTHWICK, IRVING, and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Dennis Bracken, Jr. was convicted of attempted sexual battery in the Lee County Circuit Court. The trial court sentenced him to serve thirty years, with fifteen suspended, in the custody of the Mississippi Department of Corrections, and the remainder of the sentence to be served under post-release supervision. Bracken appeals and: (1) challenges the sufficiency of the evidence, (2) argues that the verdict was against the overwhelming weight of the evidence, and (3) claims the trial court erred in denying a mistrial due to the exposure of two jurors to extrajudicial comments and actions of witnesses. We find no error and affirm.

FACTS

¶ 2. In April of 2002, Jane, a six-year-old girl, told her mother that her bottom hurt and was itchy. Her mother noticed that her daughter’s vagina and bottom were red and irritated. Her mother applied medicine to Jane’s apparent rash. While doing so, her mother told Jane that the only reason she was touching Jane there was because she needed medicine, but that no one should ever touch her there. Jane stopped her mother and said, “Momma.” Her mother asked what was she going to say. Jane replied, “Denny has touched me there.” “Denny” is the name Jane used for Bracken.

¶ 3. Jane then told her mother that the last time she was at her aunt’s house, her aunt left for a while and left Bracken in charge of Jane. Bracken was eighteen years old. Bracken took her to her aunt’s bedroom and told her to undress. He undressed also, lay down on top of her, and pushed down hard, touching his “privacy” to hers. Jane said she cried, told him to stop and that it hurt. Bracken told Jane not to tell. Jane said it had happened several times before. She said no one else had touched her there besides Bracken. Jane said this happened the last time she was at her aunt’s house. Her mother determined that this was Easter Sunday, March 31, 2002.

¶ 4. Jane’s mother took Jane to her aunt’s house. Jane told her aunt she could not come play at her house anymore because Bracken had hurt her. Jane’s aunt asked if Bracken hit her. Jane replied, “No,” and pointing to her genitals, “He hurt me down there.” Jane did not see Bracken again after that.

¶ 5. Jane was taken to a doctor and examined twice. The irritation cleared up within two weeks and never returned. Her mother reported the incident to the Department of Human Services and the police. Jane’s mother took Jane to counseling. At counseling, Jane also expressed anxiety she was having over her mother’s divorce and her fear of being separated from her stepsisters.

¶ 6. The evidence at trial showed that Jane’s account of the event never changed. Her story remained consistent when told to her mother, aunt, counselors, and the jury.

ANALYSIS

I. Was there sufficient evidence to sustain Bracken’s conviction?

¶ 7. Bracken argues there was insufficient evidence to support a conviction for attempted sexual battery. The State responds that Jane’s symptoms and testimony were sufficient for a reasonable juror to conclude that Bracken had attempted to commit sexual battery.

¶ 8. In reviewing a sufficiency of the evidence claim, the Court considers the evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 844(¶ 16) (Miss.2005). Usually, if any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we will uphold the verdict. Id.

¶ 9. A person is guilty of an attempted crime when he intends and tries to commit a crime, does any overt act toward committing the crime, but he fails or is prevented from committing the crime. Miss. Code Ann. § 97-1-7 (Rev.2000). Sexual battery is “sexual penetration with another person without his or her consent [or with] 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.” Miss.Code Ann. § 97-3-95(l)(a) and (d) (Rev.2000). Therefore, to convict Bracken of attempted sexual battery, the State had to prove that Bracken (1) intended to sexually penetrate a child under the age of fourteen, while Bracken was at least two years older than the child, (2) Bracken made an overt act toward committing this offense, and (3) failed or was prevented from doing so.

¶ 10. At the time of the alleged offense, Jane was six years old, and Bracken was eighteen. Jane testified that she and Bracken were both completely undressed. He lay down on top of her and touched his “privacy” to hers. She said he was pushing hard and it hurt. She said his “privacy” was “the thing he pees with.” When asked where hers was, she pointed to her genital area. She could not remember if he penetrated her. Her mental health counselor, Carla Davis testified that Jane discussed the abuse, and Jane said that he had “tried” to penetrate her. Jane testified that Bracken told her not to tell anyone or she would not be able to see her cousin anymore. Her mother testified that Jane’s skin was red and irritated from the top of her vagina down to her rectum. The jury heard testimony that Jane’s story was consistently reported to her mother, aunt, and counselors.

¶ 11. We find there is sufficient evidence for a reasonable jury to conclude beyond a reasonable doubt that Bracken attempted to commit sexual battery. There was evidence he intended to penetrate Jane’s vagina with his penis. This satisfies the definition of sexual penetration. Miss Code Ann. § 97-3-97(a) (Rev.2000). At the time of the incident, Bracken was more than two years older than Jane. The evidence also established an overt act toward committing the crime. Finally, there was evidence that Bracken failed to penetrate her. We affirm the trial court’s denial of a directed verdict.

II. Was the verdict against the overwhelming weight of the evidence?

¶ 12. The next issue raised by Bracken is that the verdict is against the overwhelming weight of the evidence. He contends that the State’s case only consists of Jane’s uncorroborated testimony. The State again points out that the evidence consists of Jane’s physical symptoms as well as her testimony.

¶ 13. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844(¶ 18). The evidence is weighed in the light most favorable to the verdict. Id. The power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Id. If the verdict is against the overwhelming weight of the evidence, the proper remedy is to grant a new trial. Id.

¶ 14. We have already discussed the State’s evidence which supports the verdict. At trial, Bracken denied the allegations. He said all that happened was that they played a video game. Jane’s aunt testified that when she came home Jane and Bracken were playing a video game in the living room. Her aunt said Jane did not appear upset. Jane’s mother testified as to the red irritated skin around Jane’s vagina and rectum. The jury had this to consider as well as Jane’s testimony of her attack. The trial court was within its discretion to consider the competency of the then nine-year-old witness. Veal v. State, 585 So.2d 693, 697 (Miss.1991). Moreover, Bracken does not challenge whether Jane was a competent witness or not. We are unable to say that the guilty verdict was so against the overwhelming weight of evidence, where the victim’s testimony was corroborated by physical evidence. We affirm.

III. Was Bracken entitled to a mistrial because of extrajudicial comments and actions witnessed by some of the jurors?

¶ 15. Finally, Bracken argues that he was entitled to a mistrial. Specifically, he claims that a juror was exposed to the extrajudicial statements and emotional outbursts of the victim’s grandmother and two aunts. He argues this raised the possibility of taint, which entitled him to a mistrial. The State argues that the trial court correctly determined that the juror was able to remain fair and impartial. We agree.

¶ 16. Whether to grant a motion for mistrial is within the sound discretion of the trial court. Caston v. State, 823 So.2d 473, 492(¶ 54) (Miss.2002). The standard of review for denial of a motion for mistrial is abuse of discretion. Id. The Uniform Rules of Circuit and County Court provide:

Upon motion of any party, the court may declare a mistrial if there occurs during the trial, either inside or outside the courtroom, misconduct by the party, the party’s attorneys, or someone acting at the behest of the party or the party’s attorney, resulting in substantial and irreparable prejudice to the movant’s case.
Upon motion of a party or its own motion, the court may declare a mistrial if [ ] the trial cannot proceed in conformity with law....

URCCC 3.12. The most fundamental and sacred rights secured for the criminal defendant is his right to a trial before a fair and impartial jury. Johnson v. State, 476 So.2d 1195, 1209 (Miss.1985). “Because of this, once the jury is empaneled, all cautionary measures possible should be taken to prevent extraneous or outside influence from reaching the jury in an effort to ensure impartiality and to ensure that the accused receives a fair trial.” Williamson v. State, 512 So.2d 868, 882 (Miss.1987) (overruled on other grounds). Outside influences must be eliminated if possible and minimized otherwise or the verdict rendered is questionable and a mistrial is appropriate. Fuselier v. State, 468 So.2d 45, 53 (Miss.1985).

¶ 17. During the trial, Juror Elliott approached the bench and told the trial court that she had overheard witnesses discussing the case in the bathroom. The trial court dismissed the jury with the exception of Juror Elliott. Juror Nickey Carter spoke up, “She asked my opinion, Your Honor. I know about it.” The trial court instructed Juror Carter to leave the courtroom and to wait until he was called back.

¶ 18. Juror Elliott told the court that she went to the bathroom and overheard a conversation between Jane’s grandmother and two aunts, one of whom had testified. She described an angry outburst and discussion about the case. She said she did not hear anything that she could not set aside. When asked did she relay this information to Juror Carter, Juror Elliott responded, “Yeah. We were sitting in the jury room later, you know, together, and I said, well, you know, I said I didn’t really hear anything. Do you think I should say something? And he said, well, it wouldn’t hurt.” The trial court had Juror Elliott return to the jury room and then called Juror Carter.

¶ 19. The trial court asked Juror Carter to tell exactly what Juror Elliott told him about the bathroom incident. He replied, “She said she went to the bathroom and saw some of them there. I’m not sure if she specified who. And that they were talking. She heard nothing specific. Should I tell somebody? And who? I said yes, I think you need to tell the judge.” The trial court dismissed Juror Elliott and had her replaced by the second alternate. The first alternate had already replaced a juror who, halfway through the trial, realized he knew Jane’s family. The trial court did not dismiss Juror Carter and denied Bracken’s motion for a mistrial.

¶ 20. From this record, we cannot say the trial court abused its discretion by denying the mistrial. From both jurors’ testimony it does not appear that Juror Carter knew anything other than Juror Elliott overheard some witnesses talking. He did not know which witnesses nor did he know the substance of the conversation. His only role was to encourage a fellow juror to report an incident which might have affected that juror’s impartiality. There is nothing to indicate that Juror Carter was exposed to the outside influence. Accordingly, we find no error and affirm.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY OF CONVICTION OF ATTEMPTED SEXUAL BATTERY AND SENTENCE TO SERVE A TERM OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND THAT FIFTEEN (15) YEARS SHALL BE SUSPENDED, AND THE DEFENDANT SHALL BE PLACED UNDER POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

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

      . To protect the identity of the victim and her family, we use a fictitious name.


author: IRVING, J„

text:
    Alex “Buck” CROSSWHITE and Sandra Gail Crosswhite, Appellants v. Stacey Woodruff GOLMON and Lacey Woodruff Robertson, Appellees.
    No. 2005-CA-01683-COA.
    Court of Appeals of Mississippi.
    Oct. 10, 2006.

      Bobby T. Vance, Batesville, attorney for appellants.
    Bradley Truett Golmon, attorney for ap-pellees.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   IRVING, J„

for the Court.

¶ 1. Stacey Woodruff Golmon and Lacey Woodruff Robertson (the Woodruffs) sued Alex Crosswhite and Sandra Gail Cross-white (the Crosswhites) for encroachment upon the Woodruffs’ property. After a trial, the Panola County Chancery Court found that a fence owned by the Cross-whites encroached upon the Woodruffs’ property and ordered the Crosswhites to remove the fence. Aggrieved, the Cross-whites appeal and assert the following issues which we quote verbatim:

ISSUE I: PLAINTIFFS [sic] PLEADING DID NOT GIVE NOTICE OF CLAIMS [OF] TITLE OR BOUNDARY LINES BY DEED OR OTHERWISE THUS DEFENDANTS WERE PREJUDICED IN DEFENDING AGAINST THESE CLAIMS.
ISSUE II: THE LOWER COURT ERRED IN DENYING CROSS-WHITE [sic] MOTION FOR NEW TRIAL OR IN DENYING REOPENING OF TRIAL FOR THE TAKING OF ADDITIONAL EVIDENCE.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. The Woodruffs own a piece of land in Panola County that is approximately sixty acres. The Crosswhites own a piece of property that is to the east of the Woodruffs’ land. A ditch runs near the border between the two properties. After the Crosswhites constructed a fence on the west side of the ditch, the Woodruff initiated suit to remove the fence. The Wood-ruffs’ complaint was filed on October 11, 2000. No answer to the complaint was ever filed by the Crosswhites. The docket reflects that the Crosswhites were served with the complaint on October 24, 2000.

¶ 4. An agreed order setting trial was filed on May 26, 2005. On June 16, 2005, a trial was held before the Panola County Chancery Court. The Woodruffs submitted a copy of their deed and presented an expert who had conducted a survey and found that the land west of the ditch belongs to the Woodruffs. The Crosswhites provided only their own testimony and the testimony of two of the prior owners of the property, who both indicated that they thought that the disputed area belonged to the piece of property owned by the Cross-whites. After hearing all the evidence, the court found that the Woodruffs “presented proof that the boundary line lies to the east of the ditch and Defendants asserted rights to land on the west side of the same ditch arising out of the fencing of and the possession and use of the land.” The court specifically found that “the [Wood-ruffs] are the record owners of this 59.39 acre tract of real property.” The court noted that the evidence presented by the Crosswhites went toward “establishing an ownership right arising out of adverse possession,” but “the Defendants did not establish the elements of adverse possession by clear and convincing evidence.” Ultimately, the court found that the fence constituted an encroachment onto the Woodruffs’ land and ordered the Cross-whites “to remove the fence on the Plaintiffs’ property within thirty (30) days of the entry of this Order.”

¶ 5. Additional facts, if necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OP THE ISSUES

1. Notice of Cause of Action

¶ 6. The Crosswhites contend that they are entitled to relief from the court’s judgment because the Woodruffs’ pleadings did not sufficiently meet the requirements of notice pleading, as required by Rule 8 of the Mississippi Rules of Civil Procedure. Rule 8 states that a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief’ and “a demand for judgment for the relief to which he deems himself entitled.” M.R.C.P. 8(a).

¶ 7. At the outset, the Woodruffs argue that the Crosswhites are procedurally barred from raising this issue on appeal because the issue was not raised below. “It is well settled [in] Mississippi law that there is a procedural bar to considering issues not first raised at trial.” Brown v. Thompson, 927 So.2d 733, 738(¶ 16) (Miss.2006) (citing Scott v. State, 878 So.2d 933, 963(¶ 81) (Miss.2004)). We agree with the Woodruffs that the issue is procedurally barred as a result of not having been raised below. The Crosswhites’ motion for a new trial does not address this issue. Instead, the motion for a new trial contends that the Crosswhites never received a copy of the Woodruffs’s complaint, and therefore had no notice of the actual lawsuit. No argument was made that the wording of the complaint was such that the Crosswhites did not receive notice of the substance of the Woodruffs’s complaint. Therefore, this issue is procedurally barred.

¶ 8. Even if the issue were not procedurally barred, we find that the issue is without merit. The complaint filed by the Woodruffs asserted that “the Defendants have constructed or have caused to be constructed a fence encroaching upon the property described in Exhibit ‘A’ without the permission of Plaintiffs and further that Defendants have failed to remove this fence despite repeated requests by the Plaintiffs.” The complaint went on to allege that “Defendants’ unlawful and illegal occupation of Plaintiffs [sic] real property has prevented Plaintiffs from their fair, lawful and reasonable use of their property....” This statement is a “short and plain statement of the claim” and meets the requirements of Rule 8.

¶ 9. The Crosswhites contend that the meaning of “encroachment” was not clear from the complaint, in that they did not realize that the trial of the matter would involve boundary lines or possible claims of adverse possession. However, this argument is belied by the fact that the Crosswhites appeared for trial with two witnesses who testified regarding the position of the boundary line between the two pieces of property. We fail to see how the complaint failed to inform the Crosswhites that the suit would involve the placement of a boundary line, as the complaint alleged that the Crosswhites’s fence was on land that belongs to the Woodruffs. In short, this issue is without merit and is procedurally barred.

2. Motion for a New Trial

¶ 10. In this issue, the Crosswhites essentially make two arguments. The first is that, because they could not gain the nature of the complaint and issues that would be relevant at trial from the Wood-ruffs’ complaint, they could not properly produce evidence and testimony for trial. Since we have found that the complaint gave the Crosswhites sufficient notice of the issues that would be heard at trial, this contention is also without merit. The complaint properly notified the Crosswhites of the type of evidence they would need to defend their rights at trial.

¶ 11. The Crosswhites also contend that “with no deraignment of title ... title to the properties could not be adjudicated.” We find that this issue is both procedurally barred and without merit.

¶ 12. This issue is procedurally barred because it was not raised below. Brown, 927 So.2d at 738(¶ 16) (citing Scott, 878 So.2d at 963(¶ 81)). Although the court deleted a paragraph from its order, citing a lack of deraignment of title, after reviewing the Crosswhites’ motion to set aside the judgment, the motion did not actually cite deraignment of title as an issue requiring reversal. Nothing in the Crosswhites’ motion indicates that the court erred in not requiring a deraignment of title, or in ruling the way it did in the absence of a deraignment of title. In fact, neither the word “deraignment” nor its meaning appear anywhere in the motion. Therefore, this issue is procedurally barred from our consideration due to the Crosswhites’ failure to raise it below.

¶ 13. Furthermore, even if this issue were not procedurally barred, we find that it is waived on appeal. Based on the Mississippi Supreme Court’s decision in Carpenter v. Haggard, 538 So.2d 776 (Miss.1989), this Court has specifically found, in a confirmation of title case, that “failure to deraign title is not grounds for dismissal, but a party may file a Rule 12(e) motion to force the complainant to do so.... The absence of a title deraignment was waived.” White v. Usry, 800 So.2d 125, 129 (¶¶ 15-16) (Miss.Ct.App.2001) (citing Carpenter; 538 So.2d at 777-78). In this case, no Rule 12(e) motion was ever filed to request that the Woodruffs deraign their title. Therefore, the lack of deraignment has been waived by the Crosswhites.

¶ 14. In short, there was sufficient evidence from which the chancellor in this case could fashion a remedy. A survey was presented that indicated that the Woodruffs owned all the property west of the ditch in question. By contrast, the Crosswhites presented no evidence to support their contention other than testimony that they and others believed that they owned some of the land west of the ditch. As support, the Crosswhites cite and quote extensively from Kleyle v. Mitchell, 736 So.2d 456 (Miss.Ct.App.1999). The Cross-whites contend that this case “demon-stratefs] the pitfalls of fashioning remedies without sufficient evidence.” Although factually similar to the present case, we reversed the chancellor’s decision in Kleyle because the chancellor ordered that the Mitchells could keep Kleyle’s encroaching fence and because the chancellor ordered Kleyle to refrain from building a fence in the future on his own property. We found that Kleyle was entitled to take down and keep his fence, as the chancellor ordered in the present case. Id. at 461(¶ 15). We also found that the chancery court could not prevent Kleyle from building a fence on his own property. Id. at 461(¶ 16) (quoting Clanton v. Hathorn, 600 So.2d 963, 965 (Miss.1992)). We did not indicate that the chancellor had insufficient evidence to divide the property as he did. In fact, we upheld the chancellor’s division of the contested property, although we noted that it appeared that the division was incorrect in that it gave the Mitchells too little land. Id. at 460-61 (¶¶ 13-14). Since the Mitchells did not appeal the chancellor’s division, we found no error in the chancellor’s determination of the property line. Id. at 461(¶ 14). In short, no part of the holding in Kleyle is of help to the Crosswhites.

¶ 15. In this case, the chancellor did not attempt to set a boundary line, and there was more than sufficient evidence from which the chancellor in this case could find that the Woodruffs had showed that they, and not the Crosswhites, owned the property west of the ditch. The lack of a deraignment of title, for the reasons discussed above, did not create an insufficiency in the evidence supporting the chancellor’s decision in this case.

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

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

      . Mississippi Code Annotated section 11-17-35 (Rev.2004) requires a plaintiff to deraign his title when attempting to confirm title or remove a cloud on title. The Mississippi Supreme Court has explained that a plaintiff’s deraignment must show: “title in himself from the government down, or he must show title by adverse possession ... or he must show title from the defendant, or that both derive their claim from a common source, and that his is the better title from that source.” Long v. Stanley, 79 Miss. 298, 300-01, 30 So. 823 (1901).


author: MYERS, P.J.,

text:
    Kelly R. FARIS, Appellant v. Jay L. JERNIGAN, Appellee.
    No. 2004-CA-02548-COA.
    Court of Appeals of Mississippi.
    Oct. 10, 2006.

      S. Christopher Farris, attorney for appellant.
    Anthony Sakalarios, Hattiesburg, attorney for appellee.
    Before MYERS, P.J., BARNES AND ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. On November 23, 2004, the Chancery Court of Forrest County issued an order requiring Kelly R. Faris to post a $40,000 ne exeat bond before she could leave the jurisdiction of the State of Mississippi with her daughter for overnight visitation. The chancellor further ordered Faris to pay $40,000 in attorneys’ fees and expenses incurred by Jay Jernigan as a result of the protracted litigation instigated by the former. Aggrieved by the chancellor’s ruling, Faris appeals raising the following issues:

I. WHETHER THE CHANCELLOR ERRED IN RESTRICTING VISITATION WITH THE MINOR CHILD TO MISSISSIPPI UNLESS FARIS POSTED A NE EXEAT BOND.
II. WHETHER THE CHANCELLOR ERRED IN AWARDING ATTORNEYS’ FEES THAT WERE NOT PROPERLY ITEMIZED, CORRECT OR REASONABLE, AND INVOLVED AN AWARD FOR ATTORNEYS’ FEES INCURRED IN LITIGATION IN ANOTHER STATE.

¶ 2. Finding no error, we affirm both the restriction on visitation to the State of Mississippi unless Faris posts a $40,000 ne exeat bond and the award of attorneys’ fees and expenses in favor of Jernigan in the amount of $40,000.

STATEMENT OF THE FACTS

¶ 3. Kelly Faris and Jay Jernigan were married in March 1993, and their daughter, Sophie, was born in December of that same year. Faris and Jernigan separated in April 1994, and were granted a divorce in January 1995. Primary custody of their minor daughter was originally awarded to Faris, but in November 1998, Jernigan filed a petition to modify custody. On May 25, 2000, the chancellor entered an order permanently reversing primary custody from Faris to Jernigan. Faris appealed the May 25, 2000 reversal of custody to this Court; however, in Jernigan v. Jernigan, 830 So.2d 651 (Miss.Ct.App.2002), we affirmed the chancellor’s ruling. This Court upheld the chancellor’s findings of fact that Faris made repeated and unfounded allegations against Jernigan of sexual abuse, Faris made material misrepresentations in court and to the Mississippi Department of Human Services, and Faris moved Sophie from one home to another at least five times between the time the divorce was entered and the custody modification hearing. The chancellor found, and this Court concurred, that when cumulatively considered, these facts constituted a material change in the circumstances of the custodial home, the change was adverse to the child, and therefore sufficient to support a modification of primary custody in favor of Jernigan. Id. at 652(¶ 3).

¶ 4. Following the modification of custody, Faris relocated to Atlanta, Georgia. Aware that visitation with her mother would require Sophie to leave the jurisdiction of the State of Mississippi, the chancellor’s order modifying custody required Faris to post a $5,000 ne exeat bond. Under the order, Jernigan was to make Sophie available for visitation with Faris by placing Sophie on a plane at the Gulfport airport, bound for Atlanta, Georgia. Faris was to return Sophie to Jernigan at the end of her visitation period in the same manner. On December 1, 2000, in accordance with the visitation order, Jernigan arranged for Sophie to fly to Atlanta for a weekend visit with her mother. Faris, however, failed to return Sophie to Gulf-port, as she was required to do. On December 13, 2000, the Chancery Court of Forrest County, Mississippi, entered a contempt order against Faris for wilful violation of the custody and visitation order, and ordered the $5,000 ne exeat bond forfeited to Jernigan.

¶ 5. Faris voluntarily surrendered to Georgia officials, but not before having Sophie examined by a psychologist and a nurse, filing a complaint with Georgia’s Department of Family & Children Services, alleging Jernigan sexually abused and molested their daughter, and placing Sophie under the supervision of the De-Kalb County Juvenile Court in Atlanta, Georgia, via a deprivation petition. Georgia officials returned Faris to Mississippi where she was incarcerated on the criminal contempt charge from March until August 2001. Faris’ incarceration was challenged, but upheld by the Mississippi Supreme Court in Isom v. Jernigan, 840 So.2d 104 (Miss.2003). Sophie, however, remained in the custody of the DeKalb County Juvenile Court from December 2000 until January 2002. While Sophie was wrongfully being held under the supervision of the DeKalb County Juvenile Court, Jernigan was required to pay monthly child support, and incurred significant travel and lodging expenses visiting his daughter. Jernigan incurred even greater expense defending against the litigation in Georgia, and prosecuting the contempt action in Mississippi. Sophie was finally returned to Mississippi and to her father, in January 2002, when the Georgia Court of Appeals vacated the order of the DeKalb County Juvenile Court. The Georgia Court of Appeals found that Mississippi, not Georgia, should have retained jurisdiction over the matter pursuant to the Uniform Child Custody Jurisdiction Act and the Parental Kidnaping Prevention Act. In the Interest of J.S.J., 253 Ga.App. 174, 558 S.E.2d 763 (Ga.Ct.App.2002).

¶ 6. At issue in Faris’ current appeal is the chancellor’s visitation order restricting Faris’ visitation with Sophie to the State of Mississippi, unless Faris posts a $40,000 ne exeat bond, and award of attorneys’ fees and expenses to Jernigan also in the amount of $40,000. Since Faris’ release in August 2001, the chancellor has allowed Faris restricted visitation with Sophie. This visitation has been periodically amended to allow less restrictive and more frequent visitations, including overnight visitations within the State of Mississippi. On November, 23, 2004, the chancellor issued an order ruling that Faris could not take Sophie out of the jurisdictional boundaries of the State of Mississippi unless she posted a $40,000 ne exeat bond. The chancellor further ordered Faris to pay $40,000 in attorneys’ fees and expenses incurred by Jernigan in the litigation that resulted from Faris’ violation of the previous visitation order. Faris, who now lives in New Orleans, Louisiana, appeals the chancellor’s imposition of the $40,000 ne exeat bond and assessment of attorneys’ fees.

LEGAL ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN RESTRICTING VISITATION WITH THE MINOR CHILD TO MISSISSIPPI UNLESS FARIS POSTED A NE EXEAT BOND.

¶ 7. Faris argues that the chancellor erred in requiring her to post a $40,000 ne exeat bond. She asserts that she cannot financially comply with the restriction and that there is no justification for such a restriction. Jernigan argues that the bond is reasonable, in light of the fact that Faris has previously taken Sophie beyond the jurisdictional boundaries of the State of Mississippi, then refused to return her in violation of a previous visitation order. Jernigan further argues that the bond is reasonable because Faris forfeited a $5,000 ne exeat bond that she was required to post with the court under the previous visitation order, and that amount was grossly insufficient to cover the legal fees and expenses incurred as a result of Faris’ contempt.

STANDARD OF REVIEW

¶ 8. The chancellor is granted broad discretion in deciding issues pertaining to visitation. Rogers v. Morin, 791 So.2d 815, 820(¶ 9) (Miss.2001). The appellate court will not reverse a chancellor’s findings of fact so long as they are supported by substantial evidence in the record. Harrington v. Harrington, 648 So.2d 543, 545 (Miss.1994) (citing Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983)). “When the chancellor determines visitation, he must keep the best interest of the child as his paramount concern while always being attentive to the rights of the non-custodial parent, recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and [her] child.” Id. (citing White v. Thompson, 569 So.2d 1181 (Miss.1990)). In Dunn v. Dunn, 609 So.2d 1277, 1286 (Miss.1992), the Mississippi Supreme Court stated that a chancellor’s imposition of a restriction on a non-custodial parent’s visitation without substantial evidence that the restriction is necessary to avoid harm to the child is “manifest error and an abuse of discretion.” Id. Therefore, this Court is cognizant that restrictions on visitation should be imposed on a limited basis. Fields v. Fields, 830 So.2d 1266, 1267-68(¶ 6) (Miss.Ct.App.2002).

DISCUSSION

¶ 9. In the present case, Faris previously refused to return Sophie from a weekend visitation in Atlanta, Georgia. Faris’ refusal to return Sophie to Jernigan was a violation of the then existing visitation order, and resulted in Faris’ incarceration for contempt and forfeiture of a $5,000 ne exeat bond. Faris placed Sophie in the custody of a Georgia court, where she remained for nearly thirteen months. While in the custody of the State of Georgia, on ultimately unsubstantiated allegations of abuse, Sophie was subjected to numerous physical and psychological examinations as well as deprived of the comfort of her father’s home.

¶ 10. Since Faris’ release from incarceration on the contempt charge she has been allowed increasingly less restrictive and more frequent visitations. The chancellor determined that it was in the child’s best interest to allow overnight visitations with her mother. Sophie is entering adolescence, and will soon have experiences and ponder questions that a mother is best suited to deal with. This determination comports with the court’s duty to help maintain a “healthy, loving relationship between the non-custodial parent and [her] child.” Harrington, 648 So.2d at 545. However, ever cognizant of Faris’ prior disregard for the court’s visitation orders, the chancellor’s November, 23, 2004 visitation order restricted Faris’ overnight visitations with Sophie to the jurisdictional boundaries of the State of Mississippi, unless Faris posts a $40,000 ne exeat bond.

¶ 11. The purpose of the ne exeat bond is to ensure that the orders of the court will not be ignored. Ayers v. Ayers, 734 So.2d 213, 217 (Miss.Ct.App.1999) (citing N. Shelton Hand, Divorce, Alimony and Child Custody § 9-1 (5th ed.1998)). “The bond is not generally issued without satisfactory proof that the party wall probably vacate or be absent from the reach of the court, and thus, once subjected to such, either the person or the bond in his or her place, must be available to the court and its processes.” Id. Faris lives in New Orleans, Louisiana, and will be taking Sophie outside the court’s reach for overnight visitation in her home. The situation is no different than the prior visitation order that Faris violated. In order to ensure compliance with the visitation order and to protect the interests of both the minor child and the father, the chancellor deemed it necessary to impose a ne exeat bond in an amount sufficient to deter future violations of the visitation order.

¶ 12. The chancellor’s imposition of a $40,000 ne exeat bond in order for Faris to remove the restriction on visitation to the State of Mississippi was proper under the circumstances and the evidence before him. Further, the amount of the bond was proper in light of Faris’ past willingness to forfeit a $5,000 ne exeat bond, and related actions which resulted in Jernigan incurring more than $75,000 in attorneys’ fees and other associated expenses. Therefore, we find that the chancellor did not abuse his discretion in requiring Faris to post a $40,000 ne exeat bond, and affirm the order.

II. WHETHER THE CHANCELLOR ERRED IN AWARDING ATTORNEYS’ FEES THAT WERE NOT PROPERLY ITEMIZED, CORRECT OR REASONABLE, AND INVOLVED AN AWARD FOR ATTORNEYS’ FEES INCURRED IN LITIGATION IN ANOTHER STATE.

¶ 13. Faris argues that the chancellor erred in ordering her to pay Jernigan’s attorneys’ fees in the amount of $40,000. Faris contends that the fees were incurred by Jernigan during litigation in Georgia, and should be paid by the State of Georgia, who wrongfully retained custody of Sophie. Jernigan argues that Faris’ refusal to follow the chancellor’s visitation order and related action of turning Sophie over to the custody of the DeKalb County Juvenile Court, without any substantial evidence of wrongdoing on the part of Jerni-gan, is what caused the fees and expenses to be incurred; thus, the award was proper.

STANDARD OF REVIEW

¶ 14. The chancellor has broad discretion in awarding attorneys’ fees. Walters v. Walters, 383 So.2d 827, 828 (Miss.1980). The standard of review is abuse of discretion. Regency Nissan, Inc. v. Jenkins, 678 So.2d 95, 103 (Miss.1995). In determining an appropriate amount of attorneys’ fees, the chancellor must consider, in addition to the relative financial ability of the parties, the skill and community standing of the attorney, the nature of the case and novelty of the issues, the degree of responsibility involved, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney as a result of accepting the case. McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). Unless the chancellor’s ruling was manifestly wrong, his decision regarding attorneys’ fees will not be disturbed on appeal. Ward v. Ward, 825 So.2d 713, 720 (¶ 28) (Miss.Ct.App.2002).

DISCUSSION

¶ 15. Ms. Faris asserts on appeal that the record contains insufficient evidence to support the $40,000 award of attorneys’ fees and expenses to Jernigan, and that the chancellor improperly applied the factors for determining the reasonableness of attorneys’ fees adopted by the Mississippi Supreme Court in McKee v. McKee, 418 So.2d 764 (Miss.1982), listed supra, and incorporated into Mississippi Rule of Professional Conduct 1.5(a). This Court disagrees. A review of the record indicates that Faris stipulated to the amount of fees incurred in the Georgia litigation, and an itemized bill from one of Jernigan’s attorneys, which outlined the charges incurred in the Mississippi contempt action, was submitted to the chancellor for review. There is no evidence in the record that the fees submitted by Jer-nigan’s attorney were unreasonable. The chancellor took no issue with the fees submitted to the court, and neither do we. The case was difficult and time consuming, and the chancellor considered the fees charged to be reasonable. The chancellor is in the best position to determine the reasonableness of the fees, and this Court will not arbitrarily substitute our judgment for his. Mabus v. Mabus, 910 So.2d 486, 488(¶7) (Miss.2005) (quoting Tucker v. Tucker, 453 So.2d 1294, 1296 (Miss.1984)).

¶ 16. Furthermore, “where a party’s intentional misconduct causes the opposing party to expend time and money needlessly, then attorney[s’] fees and expenses should be awarded to the wronged party.” State v. Blenden, 748 So.2d 77, 87(¶ 33) (Miss.1999). In the case subjudi-ce, the chancellor awarded Jernigan $40,000 in attorneys’ fees and other expenses incurred in litigation that ensued directly as a result of Faris’ violation of the previous visitation order. The chancellor stated that his reason for awarding Jernigan a money judgment was based upon the court’s finding that Faris’ actions in violating the previous visitation order were punitive in nature and that the fees and expenses incurred by Jernigan were a direct result of her contempt for the court.

¶ 17. In the year following Faris’ violation of the previous visitation order and placing of Sophie with the DeKalb County Juvenile Court, Jernigan incurred more than $55,000 in legal fees and related expenses in Georgia, and nearly $20,000 in legal fees and related expenses prosecuting the contempt action in Mississippi. Although the chancellor stated that the bulk of the fees incurred in the Georgia litigation were directly attributable to the Georgia court’s failure to promptly dismiss the case, he made it abundantly clear in his ruling that it was Faris’ actions in violating the visitation order of the State of Mississippi which triggered the sequence of events that led to the extended litigation in Georgia. Faris’ actions forced Jernigan to take legal action both in Georgia and Mississippi, and Jernigan would not have incurred this large amount of attorneys’ fees and related expenses had Faris followed the court’s order. Therefore, we find that the chancellor did nor err in his assessment of $40,000 in attorneys’ fees and related expenses, and affirm the award.

CONCLUSION

¶ 18. There is substantial credible evidence upon which the chancellor relied in support of both the requirement of the $40,000 ne exeat bond and assessment of attorneys’ fees and related expenses. Given the substantial evidence in the record, it is clear that the chancellor committed no abuse of discretion. For these reasons, the judgment of the Chancery Court of Forrest County is affirmed.

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

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


text:
    Marvin Sinatra SANDERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00068-COA.
    Court of Appeals of Mississippi.
    Oct. 10, 2006.

      Johnnie E. Walls, Jr., Greenville, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., BARNES, and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. On August 19, 2004, Marvin Sinatra Sanders was found guilty of two counts of capital murder and one count of aggravated assault in the Circuit Court of Coahoma County. Sanders received a sentence of two terms of life imprisonment without the possibility of parole for the capital murder charges, and a twenty year sentence for the charge of aggravated assault, all to run consecutively.

¶ 2. Sanders then filed a motion for a judgment notwithstanding the jury verdict or, in the alternative, a new trial, which the trial court overruled on August 30, 2004. Thereafter, Sanders timely filed his motion for appeal and his notice of appeal in forma pauperis. The circuit court granted Sanders’ motion and appointed Honorable Johnnie E. Walls, Jr., to continue the representation of Sanders in his appeal. Subsequently, Walls filed a brief summarizing the case’s procedural and factual history, complete with citations to the record, certifying that after scouring the record thoroughly he found no arguable issues supporting Sanders’ appeal in conformity with our supreme court’s ruling in Lindsey v. State, 2003-KA-00331-SCT, 939 So.2d 743, 2005 WL 613396 (Miss. Mar. 17, 2005). Additionally, Walls addressed several potential arguable issues that Sanders might have possibly raised on appeal as a pro se litigant, but correctly concluded that each issue was without merit and advised Sanders of his right to file a pro se brief.

¶3. Aggrieved, Sanders timely filed a brief on his own behalf and now appeals the following issues:

I. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL BY JUDICIAL MISCONDUCT.
II. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL BY PROSECUTORIAL MISCONDUCT.
III. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL BY THE INTRODUCTION OF INFLAMMATORY PHOTOGRAPHS.
IV. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL BY THE COURT ALLOWING AN IN-COURT IDENTIFICATION RESULTING FROM A PRIOR MISIDENTIFICATION.
V. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL DUE TO THE INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 4. Finding no reversible error, we affirm the judgment of the circuit court.

FACTS

¶ 5. In the late evening hours of October 3, 2003, Vester Mae Triplett was operating her small neighborhood grocery store located on Miles Road in the Round-way Community near Clarksdale, Mississippi, which was equipped with guest tables, game machines and a pool table. At that time, Triplett’s brother’s residence was located approximately one hundred yards from her store. On some occasions, including the night of October 3, 2003, Triplett catered to adults who shot pool, gambled and had a few drinks. On this evening, Triplett and several others, including Johnny Scott and Marvin Sanders were participating in a craps game.

¶ 6. Sanders, a long-time resident of the small community, arrived at Triplett’s store at approximately 10:00 p.m. While at Triplett’s store, Sanders drank beer and gin and was losing in the craps game. Sanders apparently ran out of money during the game and twice borrowed money from other players. Testimony at trial indicated that Sanders was upset about losing and stated, “I’m gonna get my ‘F’ money back, my mother ‘F’ money back.” Shortly before midnight Sanders left. Only Triplett and Scott remained in the store. At approximately midnight Triplett saw Sanders stop his car in the middle of the road in front of her store for a short time, then pull off. Shortly thereafter Triplett began preparing to close the store and depart. While Triplett and Scott were preparing to leave, Sanders returned to the store, fatally shot Scott in the back of the head, and demanded money from Triplett. At this point, Triplett saw through the window another person enter the parking lot of the store, exit his running vehicle, and proceed toward the front door of the store. After Triplett handed Sanders the money and pleaded for her life, Sanders shot Triplett in the face and she fell to the floor. As Triplett lay on the floor, Brandon Lott unknowingly walked into the store and was immediately shot and killed by Sanders, his body left lying in the doorway. After Sanders left, Triplett then pulled herself from the floor, found her keys, walked over the body of Lott to reach her van in the parking lot of the store. She then drove to her brother’s nearby residence and blew the horn for attention. Triplett’s brother called 911 and waited until the ambulance arrived. Triplett identified the shooter, both at that time and later in open court, as Marvin Sanders, whom she had attended high school with and had known for more than fifteen years.

LEGAL ANALYSIS

I. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL BY JUDICIAL MISCONDUCT.

II. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL BY PROSECUTORIAL MISCONDUCT.

¶ 7. These two issues are combined as they arise under the same standard of review and are governed by the same facts. Sanders cites several instances that he characterizes as judicial and prosecuto-rial misconduct. He argues that it was judicial misconduct on the part of the trial court to allow the prosecutor to ask leading questions and prosecutorial misconduct to ask the leading questions. Additionally, he argues that it was judicial misconduct for the court to allow the prosecutor to question a witness on redirect beyond the scope of the direct examination. Sanders further alleges error and misconduct by citing to several statements made by the prosecutor in his closing argument.

¶ 8. The decision to allow leading questions rests within the discretion of the trial court. Parks v. State, 930 So.2d 383, 387(¶ 9) (Miss.2006). Only upon a finding of an abuse of discretion will a trial courts’ ruling be disturbed. Id. We cannot say that under the context and circumstances of this case that the trial court abused its discretion in allowing the prosecutor to ask leading questions.

¶ 9. Pursuant to the Mississippi Supreme Court’s recent adoption of a two-part test to determine whether a prosecutor’s closing remarks constitute reversible error, we review first whether the remarks were improper, and if so, whether the remarks prejudicially affected the accused’s rights. Spicer v. State, 921 So.2d 292, 318(¶ 55) (Miss.2006) (adopting test annun-ciated by the Ohio Court of Appeals in State v. Grimes, 2005 Ohio 203, P18 (Ohio Ct.App.2005)). “It must be clear beyond a reasonable doubt, that absent the prosecutor’s comments, the jury could have found the defendant guilty.” Id. The standard used in reviewing closing arguments is “whether the natural and probable effect of the prosecuting attorney’s improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice.” Rushing v. State, 711 So.2d 450, 455(¶ 15) (Miss.1998) (quoting Taylor v. State, 672 So.2d 1246, 1270 (Miss.1996)). The trial judge is in the best position to determine if an alleged objectionable remark has a prejudicial effect. Roundtree v. State, 568 So.2d 1173, 1177 (Miss.1990). As we review the decision of the trial court regarding the admissibility of statements made in closing arguments, we keep in mind that counsel is allowed wide latitude when making their arguments to the jury; the trial court should show restraint in curtailing counsel’s arguments. Any allegedly improper prosecuto-rial comments must be considered in the context and circumstances of the case.

¶ 10. After a thorough review of the record, this Court finds no merit in any of Sanders’ claims of judicial or prosecutorial misconduct. There is nothing in the trial transcript to indicate that Sanders was prejudiced ■ before the jurors by any judicial or prosecutorial misconduct during this phase of the trial. Therefore, neither judicial nor prosecutorial misconduct deprived Sanders of a fair trial as these issues are without merit.

III. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL BY THE INTRODUCTION OF INFLAMMATORY PHOTOGRAPHS.

¶ 11. “The standard of review regarding admission [or exclusion] of evidence is abuse of discretion. Where error involves the admission or exclusion of evidence, this Court will not reverse unless the error adversely affects a substantial right of a party.’ ” Whitten v. Cox, 799 So.2d 1, 13(¶ 27) (Miss.2000) (citing Floyd v. City of Crystal Springs, 749 So.2d 110, 113(¶ 12) (Miss.1999)).

¶ 12. Several photographs were introduced as exhibits into evidence at trial. At issue are four of the introduced photographs depicting the crime scene. Sanders argues that the introduction of the photographs was error because the exhibits were introduced for the sole purpose of evoking sympathetic emotions from the jury, and thus deprived him of a fair trial under the due process clause.

¶ 13. The law regarding admissibility of crime scene photographs is well-settled. The Mississippi Supreme Court has held,

Photographs have evidentiary value where they: 1) aid in describing the circumstances of the killing and the corpus delicti; Williams v. State, 354 So.2d 266 (Miss.1978); 2) where they describe the location of the body and cause of death; Ashley v. State, 423 So.2d 1311 (Miss.1982); and 3) where they supplement or clarify witness testimony. Hughes v. State, 401 So.2d 1100 (Miss.1981).

Westbrook v. State, 658 So.2d 847, 849 (Miss.1995). Ml of the pictures introduced into evidence at trial that Sanders now appeals served to clarify the testimony of witnesses, to give the jury a visual depiction of the crime scene, and to show the cause of the victims’ deaths. Three of the four contested photographs depict the physical position of the victims as they lay at the crime scene. These exhibits aid in the description of the crime scene and the circumstances surrounding the deaths. The fourth photograph introduced into evidence depicts the wound suffered by the victim, Scott. This photograph served to corroborate Triplett’s testimony concerning Scott’s manner of death. For the foregoing reasons, the trial court’s admission of the photographs was not an abuse of discretion. Therefore, this issue is without merit.

IV. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL BY THE COURT ALLOWING AN IN-COURT IDENTIFICATION RESULTING FROM A PRIOR MIS-IDENTIFICATION.

¶ 14. Sanders next contends that the trial court erred in allowing the sole surviving eyewitness of the shootings to testify regarding her pretrial identification and to make an in-court identification. The objections are based upon the credibility of Triplett in her identification of Sanders and upon the credibility of her testimony in general, due to alleged inconsistencies in her testimony. Sanders argues that this trial court error deprived him of a fair trial and thereby violated his due process rights.

¶ 15. In addressing Sanders’ first objection to the in-court identification, the law concerning identification procedures is well-settled and must comply with the requirements of due process. Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The factors to be considered when determining whether an identification complies with due process are as follows:

(1) the opportunity of the witness to view the criminal at the time of the crime;
(2) the witness’ degree of attention;
(3) the accuracy of the witness’ prior description of the criminal;
(4) the level of certainty demonstrated by the witness at the confrontation; and
(5) the length of time between the crime and the confrontation.

Id. at 199-200, 93 S.Ct. 375; Ferguson v. State, 856 So.2d 334, 338(1110) (Miss.Ct.App.2003). These factors are to be considered under the totality of the circumstances. Biggers, 409 U.S. at 199, 93 S.Ct. 375. A review of the record establishes that each of the Biggers factors is satisfied.

¶ 16. Sanders claims that Triplett would not have had sufficient opportunity to view the assailant during Lott’s murder because Triplett was lying on the floor. Sanders reasons that because Triplett was lying on the floor, her testimony concerning the shooter is faulty. However, the Mississippi Supreme Court has held that identifications are admissible when the witness viewed the criminal for only a few seconds. Horne v. State, 825 So.2d 627, 638(¶ 41) (Miss.2002). Here, Triplett viewed Sanders during the entire robbery and addressed Sanders by name as she pleaded for her life. It was only at the point when she was shot that she fell backwards onto the floor. Based upon the facts, Triplett had ample opportunity to view the assailant during the commission of the crime, and Triplett’s momentary loss of her line of sight of the appellant is not sufficient to bar Triplett’s identification of Sanders as the shooter.

¶ 17. Further, the witness’ degree of attention is not at issue in this case. Triplett was a victim of a robbery and aggravated assault and spoke face-to-face with the appellant as she plead for her life. Her testimony indicated that she recognized Sanders immediately upon his re-entrance into the store and she acknowledged his presence. This testimony shows that she was paying sufficient attention during the commission of the crimes.

¶ 18. The accuracy and level of certainty demonstrated by Triplett in her prior description, which occurred almost immediately after the crime, is also not at issue. Once Triplett was able to drive to her brother’s residence and gain his attention for help, she immediately and specifically identified Marvin Sanders, by name, as the assailant and never wavered from this initial identification. As the record reflects, Triplett had known Sanders for approximately fifteen years before the crime occurred. Triplett and Sanders attended the same high school, lived only a few hundred yards away from each other, and socially interacted on occasion, including the evening of the crime. All of these factors taken together demonstrate the accuracy and level of certainty in Triplett’s identification. Moreover, the elements of Biggers are supported by substantial evidence. Therefore, considering the totality of the circumstances of the out-of-court and in-court identifications, we find that there was sufficient evidence to support the trial court’s admission of the identification evidence.

¶ 19. Sanders’ second argument concerning the in-court identification is predicated upon the credibility of the witness and cites to alleged inconsistencies in Triplett’s testimony. After a thorough review of the record, this Court is satisfied that there are no inconsistencies in Triplett’s testimony. However, the jury is the true judge of witness credibility. The jury has the plenary discretion to believe or disbelieve any part of the testimony of any witness. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). In this case, the jury chose to believe Triplett’s testimony and consequently convicted Sanders. Therefore, the trial court did not err in allowing Triplett’s out-of-court or in-court identification of Sanders.

V. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL DUE TO THE INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 20. Sanders claims that his counsel’s failure to interview a potential alibi witness, failure to have gun powder residue tests performed on Sanders’ clothing, and failure to object to the prosecutor’s use of a nickname for the appellant resulted in ineffective assistance of counsel, and thus violated his constitutional right to a fair trial.

¶ 21. Claims of ineffective assistance of counsel are reviewed by using the two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on a claim of ineffective assistance of counsel, Sanders has the burden of proof to show by a preponderance of the evidence that (1) counsel’s performance was deficient, and (2) that the deficiency did, in fact, prejudice the defense’s case so as to prevent a fair trial. Id.; Hall v. State, 735 So.2d 1124, 1127(¶ 6) (Miss.Ct.App.1999). In determining whether the first prong of Strickland concerning counsel’s performance has been satisfied, we must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.... ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The second prong of the Strickland test requires that Sanders prove prejudice by showing that there was a reasonable probability, but for counsel’s errors, the trial court’s result would have been different. Id. at 699, 104 S.Ct. 2052. Whether the prongs of this test are met is determined by an examination of the totality of the circumstances. Id.

¶ 22. In this instance, Sanders makes no valid argument of a deficiency in his lawyer’s representation. Decisions to call witnesses, ask certain questions, or make particular objections fall within the purview of the attorney’s trial strategy and “cannot give rise to an ineffective assistance of counsel claim.” Carr v. State, 873 So.2d 991, 1003(¶ 27) (Miss.2004). Although Sanders cites to numerous issues in support of his claim of ineffective assistance of counsel, he provides no evidence that he suffered harm as a result of his attorney’s performance.

¶ 23. Sanders states that his lawyer refused to interview an alibi witness; however, he does not provide an identity of the witness, nor the substance of the potential testimony that would create his alibi. In fact, at trial the defense called three witnesses in an attempt to establish Sanders’ alibi. The jury chose not to believe those witnesses.

¶ 24. Sanders’ argument regarding the failure of the gun residue testing also fails. This Court has previously held that the absence of a test for gun powder or nitrate “in no way renders the jury verdict invalid.” Catchings v. State, 757 So.2d 360, 363(¶ 11) (Miss.Ct.App.2000). Based on testimony provided at trial, a significant amount of time, possibly two hours, elapsed between the shootings and the subsequent arrest of Sanders. Thus a negative result of a gun powder test would not conclusively prove Sanders’ innocence.

¶25. Lastly, upon this Court’s review of the trial transcript, Sanders’ argument concerning his attorney’s failure to object to the prosecutor’s use of a nickname for the appellant factually fails. An objection was properly made and subsequently overruled by the trial court. Furthermore, Sanders has shown no evidence that had his attorney interviewed the phantom alibi witness, or ordered a gun powder residue test, the outcome would have been different. Considering the totality of the circumstances, the performance of Sanders’ trial counsel was not deficient, nor did it prejudice Sander’s case in any way. Therefore, Sanders has failed to meet his burden of proof under the two-part test set out in Strickland, and his claim of ineffective assistance of counsel fails.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF COUNT I CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE; COUNT II CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE; AND COUNT III AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS, TO RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS I AND II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

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