author: KING, C. J,

text:
    Daughn SPAHN, Appellant v. Joseph Gilbert SPAHN, Appellee.
    No. 2005-CA-00368-COA.
    Court of Appeals of Mississippi.
    Sept. 26, 2006.
    Rehearing Denied March 20, 2007.

      T. Swayze Alford, attorney for appellant.
    H.R. Garner, Hernando, attorney for ap-pellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   KING, C. J,

for the Court.

¶ 1. Daughn Spahn appeals the Tate County Chancery Court’s denial of her motion for a new trial, in which she alternatively sought to alter or amend the judgment of divorce. Daughn raises fourteen assignments of error, which we have condensed to four, since a majority of Daughn’s issues involve equitable distribution. Finding no error, we affirm.

FACTS

¶2. Daughn and Joseph Spahn were married on December 10, 1994. In 1997, Daughn gave birth to Joseph Gunner Spahn, the Spahn’s only child. Joseph’s son from a previous marriage also lived with the Spahns. Joseph is the sole proprietor of M & R Construction and Supply Company, which he and his father founded in 1977 in Senatobia, Mississippi. Joseph purchased Spahn House in April of 1994, so that Daughn could run it as a bed and breakfast. Spahn House also served as the Spahn’s residence. In 1996, Joseph conveyed a one-half interest in Spahn House to Daughn. Throughout the marriage, Joseph ran M & R while Daughn operated Spahn House. Joseph also received additional monthly income from renting out space in a warehouse he had owned since the early 1980s. In addition to running Spahn House, Daughn performed tasks for M & R such as answering telephone calls as well as hosting M & R business functions at Spahn House.

¶ 3. Daughn filed for a divorce on March 19, 2003, after which time Joseph moved out of the marital home and purchased a house on Camille Street in Senatobia. On August 19, 2004, Daughn and Joseph moved to withdraw adversarial grounds for divorce and proceed with an irreconcilable differences divorce. The parties left the issues of equitable distribution of marital assets, child support, alimony, and attorneys’ fees to be decided by the chancellor. Their divorce was granted October 13, 2004.

I. WHETHER THE CHANCELLOR ERRED IN CALCULATING JOSEPH’S ADJUSTED GROSS INCOME FOR PURPOSES OF CALCULATING CHILD SUPPORT.

¶4. In reviewing domestic relations cases, this Court will not overturn a chancellor’s findings which are based on substantial credible evidence unless the findings were manifestly wrong, clearly erroneous, or an incorrect legal standard was applied. Magruder v. Magruder, 881 So.2d 365, 369 (¶ 17) (Miss.Ct.App.2004).

¶ 5. Daughn claims that the chancellor erred in accepting at face value Joseph’s Rule 8.05 financial declaration to calculate child support. Daughn contends that the figure submitted and accepted was artificially low for the sole proprietor of a business with a gross annual business income of $1,421,873. Joseph’s Rule 8.05 financial statement showed a net income of $2,796 per month. The chancellor noted in his opinion that Daughn contended that improper deductions, such as automobile payments and entertainment expenses, were made in calculating his net income, yet Daughn offered no specific proof of the amounts of the improper deductions.

¶ 6. Carlton Dixon, the court-appointed CPA and accountant for M & R, testified that Joseph’s adjusted gross income, according to his 2003 tax return, was $45,248 and that his taxable income was $34,398. Joseph testified that his income varies from year to year, and after taxes he earns between $30,000 and $50,000. Joseph admitted that although his 2003 tax return reflected an adjusted gross income of $45,248, he had deposited $50,302 in his personal checking account in 2003. Therefore, based on Joseph’s testimony, the chancellor imputed additional income of $500 dollars a month to Joseph, making his adjusted gross income $3,296.14 per month. The chancellor then ordered Joseph to pay fourteen percent of that figure, $461.45, per month in child support, in accordance with Mississippi Code Annotated 43-19-103 (Rev.2004).

¶ 7. We find that the chancellor’s finding of Joseph’s adjusted gross income for purposes of calculating child support was based on the substantial credible evidence provided by Joseph’s Rule 8.05 financial statement, Joseph’s 2003 federal tax return, Joseph’s testimony, and Dixon’s testimony. We also find that the chancellor correctly applied Mississippi Code Annotated 43-19-103 in determining the amount of child support. This issue fails.

II. WHETHER THE CHANCELLOR ERRED IN HIS CLASSIFICATION AND DIVISION OF MARITAL PROPERTY.

¶ 8. Daughn claims that the chancellor’s division of marital property was erroneous with respect to Spahn House and its contents, the life insurance policies, Joseph’s IRA, and a number of other assets. Daughn also argues that the chancellor erred in his classification of the warehouse and lot on Tate Street and the house on Camille Street as Joseph’s non-marital property.

Classification

¶ 9. A chancellor’s first step in equitable distribution is classifying property as marital or non-marital property. Ericson v. Tullos, 876 So.2d 1038, 1040 (¶ 9) (Miss.Ct.App.2004). “Assets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994). However, separate assets may lose their non-marital classification if commingled with marital assets or if used for familial purposes. Johnson v. Johnson, 650 So.2d 1281, 1286 (Miss.1994).

¶ 10. The relevant testimony regarding the warehouse and adjoining lot revealed that Joseph had owned the property since the early 1980s. He took out a mortgage on the property in 1998 to pay off the 1994 loan he obtained to purchase Spahn House. Joseph maintains a separate account at Senatobia Bank in which he deposits the rental income and from which he pays the mortgage, taxes, insurance, and maintenance of the property. Because Joseph acquired the warehouse prior to the marriage and did not commingle the proceeds from the warehouse, nor use the warehouse for family purposes, we find that the chancellor was correct in classifying the warehouse as Joseph’s non-marital property.

¶ 11. It is well established that property acquired through joint efforts during the course of marriage is deemed marital property. Johnston v. Johnston, 722 So.2d 453, 463 (¶ 28) (Miss 1998) (quoting Draper v. Draper, 627 So.2d 302, 305 (Miss.1993)). The course of the marriage, for purposes of classifying property as marital or non-marital, runs until the date of the divorce judgment. Deal v. Wilson, 922 So.2d 24, 28-29 (¶ 11) (Miss.Ct.App.2005) (quoting McIlwain v. McIlwain, 815 So.2d 476, 479 (¶7) (Miss.Ct.App.2002)). The relevant testimony regarding the Camille Street property was that Joseph purchased the house for $37,000 in May 2003, two months after Daughn filed for a divorce. Joseph acquired a loan in the amount of $45,000 in order to purchase the house and make necessary repairs since the house had been damaged in a fire. Although Joseph used M & R employees for a portion of the renovations, he paid them from a separate account. At the time of trial, the Camille Street property was valued at $45,500, while $45,581.37 was owed on the property. Although the Camille Street property was purchased after the parties separated, but during the course of the marriage, the record reveals that it was not acquired through their joint efforts. We find that the chancellor was correct in classifying the Camille Street house as Joseph’s non-marital property. Even were we to hold the chancellor’s classification to be error, it would be harmless error. The value of this property is exceeded by the outstanding mortgage. There is no equity in the house. At worst the chancellor’s actions can be said to have negated an award of real property, by also awarding with it the outstanding indebtedness.

Equitable Distribution of Marital Property

¶ 12. In reviewing questions of equitable distribution, this Court will examine the chancellor’s application of the Ferguson factors. Phillips v. Phillips, 904 So.2d 999, 1001 (¶ 8) (Miss.2004) (citing Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994)). However, we will not conduct a Ferguson analysis anew, rather we review the chancellor’s application to ensure that there has been no abuse of discretion. Id. A chancellor must consider the following eight factors when conducting an equitable distribution of marital property:

(1) Substantial contribution to the accumulation of the property, including these factors: direct or indirect economic contribution to the acquisition of the property, contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage, and contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets,
(2) the degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise,
(3) the market value and the emotional value of the assets subject to distribution,
(4) the value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as ■ property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse,
(5) tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution,
(6) the extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
(7) the needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
(8)any other factor which in equity should be considered.

Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994).

¶ 13. The chancellor classified the following property as marital: M & R Construction Co., Spahn House, the furnishings in Spahn House, the Protective Life insurance policy, the Jefferson Pilot life insurance policy, the Guardian Life insurance policy, the joint E-trade account, AIM mutual funds, and 200 shares in First Tennessee stock. Based on the evidence presented by the parties, the chancellor assigned value to each item of marital property, and determined that the total value of all marital property was $434,063.50. Next, the chancellor conducted a Ferguson analysis and made the following findings. Throughout the marriage, Daughn operated Spahn House, which indirectly contributed to the growth of M & R Construction. Daughn also performed many duties, although minor in comparison to Joseph’s contributions, for M & R Construction which attributed to its growth. Neither party expended, withdrew, nor disposed of any marital assets to any great degree. Further, the furnishings within Spahn House, the Protective Life insurance policy, the Jefferson Pilot life insurance policy, the Guardian Life insurance policy, the joint E-trade account, the AIM mutual funds, and the 200 shares of First Tennessee stock were all acquired during the course of the marriage through the joint and equal efforts of both parties. The chancellor then awarded Daughn Spahn House and its contents, 100 shares of First Tennessee stock, and a one-half interest in the AIM mutual funds, for a total award of $211,196.50 of the marital property. Joseph was awarded M & R Construction, the Protective Life Policy, the Jefferson Pilot policy, the Guardian Life policy, one-half of the AIM account, and 100 shares of First Tennessee stock, for a total award of $222,867. Therefore, Daughn received 48 percent of the marital estate, while Joseph received 52 percent of the marital estate.

¶ 14. Equitable distribution does not require equal distribution. Dobbs v. Dobbs, 912 So.2d 491, 493 (¶ 7) (Miss.Ct.App.2005). Rather, equitable distribution is a fair division of marital property based on each spouses’ contribution to assets during the marriage. Tate v. Tate, 875 So.2d 257, 261 (¶ 7) (Miss.Ct.App.2004) (citing Traxler v. Traxler, 730 So.2d 1098 (¶ 21) (Miss.1998)). Although the chancellor did not apply each of the Ferguson factors, he permissibly addressed only those factors which he deemed applicable to the property in question. Owen v. Owen, 798 So.2d 394, 399 (¶ 13) (Miss.2001) (citing Carrow v. Carrow, 741 So.2d 200, 202 (¶ 10) (Miss.1999)). We find that the chancellor conducted a sufficient Ferguson analysis, made findings supported by substantial credible evidence, and equitably divided the marital property. Therefore, we affirm the chancellor’s equitable division of the martial property.

Remaining Personal Property

¶ 15. Daughn argues that the chancellor erred in failing to address several items of personal property which Joseph possessed and which Daughn claims are marital assets which should have been included in the equitable distribution. However, after conducting a thorough Ferguson analysis and equitably dividing the marital assets, the chancellor stated in his order, “Unless specifically addressed herein, each party may keep and become the sole owner of any personal property in their respective possessions as of this time.” We find that the chancellor did not abuse his discretion in allowing each party to retain the remaining personal property in their respective possessions.

III. WHETHER THE CHANCELLOR ERRED WHEN HE FAILED TO REQUIRE JOSEPH TO PAY FOR DAUGHN’S MEDICAL INSURANCE COVERAGE AS HAD BEEN PROVIDED IN THE TEMPORARY SUPPORT ORDER.

¶ 16. An agreed temporary order filed on May 23, 2003, provided that Joseph would maintain Daughn’s medical insurance. On August 19, 2004, the chancellor granted a joint motion of the parties to withdraw their adversarial grounds for divorce, and instead proceed with an irreconcilable differences divorce. While Daughn and Joseph came to an agreement as to many terms of the divorce, they left many issues to be decided by the chancellor, including what, if any, medical, disability or life insurance should be maintained by each party. The chancellor’s judgment and accompanying opinion are silent as to whether either party must maintain medical insurance for the other.

¶ 17. Where a chancellor’s findings are silent as to a particular issue, there is a presumption that the chancellor resolved the issue in favor of the appellee. Love v. Barnett, 611 So.2d 205, 207 (Miss. 1992). Additionally, “if there are sufficient marital assets which, when equitably divided and considered with each spouse’s non-marital assets, will adequately provide for both parties, no more need be done.” Lauro v. Lauro, 847 So.2d 843, 848 (¶ 13) (Miss.2003) (quoting Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994)). Not only did Daughn receive $211,196.50 of assets in the distribution of marital property, or forty-eight percent of the marital estate, but also she received an award of $56,835.25 in lump sum alimony. Additionally, Daughn presented no proof of any special medical needs that she may have. Therefore, we find that the chancellor’s failure to address whether Joseph must maintain Daughn’s medical insurance was resolved in the negative.

IV. ATTORNEY’S FEES

¶ 18. Daughn argues on appeal that she accumulated $49,000 in attorney’s fees, and that she received no liquid assets in the equitable distribution from which she could pay her attorney’s fees. The award of attorney’s fees is left to the discretion of the trial court. Langdon v. Langdon, 854 So.2d 485, 495 (¶40) (Miss.Ct.App.2003) (citing Lobella v. Lobella, 722 So.2d 472, 475 (¶ 13) (Miss.1998)). As a general rule, if a party is financially capable of paying his or her own attorney’s fees, that party should do so. Id. In deciding whether to award attorney’s fees, the chancellor should consider each parties’ financial ability. Id. The chancellor in the ease sub judice found that although Daughn sought attorney’s fees, she demonstrated no inability to pay her own attorney’s fees. We find that the chancellor’s decision is supported by substantial credible evidence. Daughn received an award of lump sum alimony, 100 shares of First Tennessee stock, and Spahn House, a potentially income-producing business.

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

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

      . The items of personal properly in question are a Jeep Cherokee, an antique Jeep, a Ford pick-up truck, and a gun collection. The Jeep Cherokee, while titled in Joseph's name, was purchased for and is driven by Joseph’s son from a previous marriage. Daughn's testimony at trial revealed that she was uncertain whether the antique Jeep was purchased pri- or to or during the marriage. There is no testimony in the record regarding the Ford pick-up truck. Regarding the gun collection, Daughn testified that Joseph owned at least half of the guns prior to the marriage and received other guns during the marriage as gifts and inheritances. No proof was presented to show that any of the guns obtained during the marriage were purchased with marital assets.


source: Caselaw Access Project

author: CHANDLER, J., for the Court.

license: Public Domain

text:
    Jermaine A. RAMSEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-00070-COA.
    Court of Appeals of Mississippi.
    Oct. 17, 2006.
    Rehearing Denied April 3, 2007.

      James A. Williams, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

      Before LEE, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J., for the Court.

¶ 1. Jermaine A. Ramsey was convicted by a Lauderdale County Circuit Court jury of the crimes of capital murder and robbery. Ramsey appeals, arguing numerous claims of error, including evidentiary errors, violations of his due process rights, right to silence, and right to effective assistance of counsel. We find no error and affirm.

FACTS

¶ 2. On the night of March 18, 2008, William Gill was shot to death in Lauder-dale County, Mississippi. Driving his black Yukon SUV earlier that evening, Gill picked up the Appellant, Jermaine A. Ramsey, and Glen Stevens in order to find crack cocaine for Gill. The men drove around Lauderdale County in an attempt to score drugs from various sources.

¶ 3. At some point along their route, Gill pulled the SUV over on a back road to allow Ramsey to answer “the call of nature.” According to eyewitness testimony by Stevens, Ramsey exited the vehicle and went behind a building. Upon his return, Ramsey walked up to the vehicle, stuck a .25 caliber Raven handgun through the window and opened fire. Ramsey lethally shot Gill five times, striking Gill four times in the head and neck area and one time in the shoulder, killing him. Ramsey then dragged Gill’s body out of the vehicle, left him in a ditch, and drove off in Gill’s SUV. Stevens claimed he remained in the back seat of the SUV during the sequence of events and did not participate in the shooting. Stevens stated that, after the shooting, Ramsey dropped him off, and Stevens did not have any further contact with Ramsey. Ramsey continued to drive the SUV and parked it at an abandoned lot near his mother’s house.

¶ 4. Police recovered the body of William Gill on March 15, 2003. Operating on a tip from Ramsey’s mother, police went to Ramsey’s neighborhood where they discovered the stolen SUV and other evidence of the crime in the abandoned yard close to Ramsey’s house. While police searched the yard for further evidence, Ramsey was spotted walking towards the vehicle. A police officer stopped Ramsey to question him, identified him as the suspect in question, and took Ramsey into custody. The officer initiated a pat down of Ramsey, wherein he found Ramsey in possession of the stolen SUV’s keys. Ramsey later consented to a search of his house, where the police found spent shells from the gun used to shoot Gill. A further sweep of the abandoned yard yielded the gun that was used in the crime, and a bag containing Gill’s personal effects was found in a trash bin several blocks away.

¶ 5. At trial, Stevens testified as an eyewitness to the crime, stating that Ramsey shot Gill repeatedly and thereafter stole Gill’s vehicle. Stevens testified as a witness for the State in exchange for his willingness to plead guilty to a related charge of accessory after the fact to capital murder. Ramsey’s arresting officers, as well as the officers who discovered Gill’s body also gave testimony. In addition, the forensic pathologist who performed Gill’s autopsy presented evidence of the cause of death, which included references to photographs taken during the autopsy.

¶ 6. The jury found Ramsey guilty of capital murder and robbery on August 1, 2003 in violation of Mississippi Code Annotated sections 97-3-19(l)(e) and 97-3-73 (Rev.2006). Ramsey was sentenced to life without parole on the capital conviction and fifteen years for the robbery, with the sentences to run concurrently. Ramsey appeals, arguing prejudicial trial errors and ineffective assistance of counsel.

LAW AND ANALYSIS

I.WHETHER THE COURT ERRED WHERE THERE IS AN ALLEGED FATAL VARIANCE IN THE INDICTMENT AND JURY INSTRUCTIONS

A. Variance injury instructions

¶ 7. Ramsey argues that the trial court erred in allowing a jury instruction that differed in its verbiage from the charge in his indictment. Ramsey claims that due to this variance, the jury was not instructed to find all the elements required for capital murder. We find this argument to be without merit.

¶ 8. No objection to the language of the jury instruction is in the record. It is well settled that if no contemporaneous objection is made at trial, the error, if any, is waived. Walker v. State, 671 So.2d 581, 597 (Miss.1995). Accordingly, we find that Ramsey failed to preserve this issue for appeal.

¶ 9. Notwithstanding the procedural bar, this issue is without merit. Ramsey was indicted for capital murder on July 28, 2003. Ramsey was indicted with Stevens on a second charge of robbery. Jury instruction C-10 stated in relevant part:

that if you find beyond a reasonable doubt that:
1. On or about the 15th day of March 2003 in Lauderdale County, Mississippi
2. The defendant, Jermaine Ramsey, acting alone or with another, did felo-niously take personal property in the possession of William Gill from his person or his presence and against his will;
3.And during the commission of said robbery, William Gill, a human being, was killed with or without any design to effect his death;
then it is your sworn duty to find the defendant, Jermaine Ramsey, guilty of capital murder under Count I.

(emphasis added). Capital murder, as defined by Mississippi Code Annotated section 97-3-19 (Rev.2006), states in relevant part:

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases: ... (e) When done with or without any design to effect death, by any person engaged in the commission of the crime of ... robbery. ...

We find that the language of the indictment properly charged Ramsey with capital murder under section 97 — 3—19(2)(e) and that jury instruction C-10 properly instructed the jury on the elements of capital murder under section 97 — 3—19(2)(e).

B. Constitutional rights violation regarding inconsistent statements

¶ 10. Ramsey argues that inconsistent evidence regarding whether Ramsey or Stevens killed Gill, in combination with the trial court’s instructions permitting a conviction and sentence to prison for life without parole, constitute a Fourteenth Amendment due process violation. The record does not support this argument.

¶ 11. Ramsey relies on several United States Supreme Court cases to further this contention, including Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Jones v. U.S., 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); Tison v. Arizona, 481 U.S. 137,107 S.Ct. 1676, 95 L.Ed.2d 127 (1987); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). We find none of the referenced cases to be applicable to Ramsey’s case. The cited United States Supreme Court cases all concern sentencing enhancements involving the death penalty. The district attorney in the present case did not seek the death sentence. The sentence considered for Ramsey was life without parole.

C.- Failure to add “without authority of law” to portion of the jury instructions

¶ 12. Ramsey argues that the court fatally erred in not providing in a portion of the jury instructions the language, “without authority of law.” When considering a challenge to a jury instruction, we read and consider the instructions in their entirety. Roundtree v. State, 568 So.2d 1173, 1177 (Miss.1990). If the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Williams v. State, 803 So.2d 1159, 1161(¶ 6) (Miss.2001)

¶ 13. Jury instruction C-10 begins by stating the definition of capital murder under section 97-3-19. The statute provides that capital murder is “the killing of a human being without authority of law.” The instruction then charges that if the jury finds beyond a reasonable doubt that Ramsey “did feloniously take personal property in the possession of ... Gill ... [a]nd during the commission of said robbery, William Gill ... was killed with or without any design to effect his death,” then the jury should find Ramsey guilty of capital murder. The relevant language “without authority of law” is not included in the jury’s charge of when to find Ramsey guilty of capital murder. However, upon reading the instruction in its entirety and considering the language of the instruction as a whole, we find no error.

¶ 14. A similar situation arose in Harris v. State, 861 So.2d 1003 (Miss.2003). In Harris, the defendant argued that failure to include “without authority of law” constituted prejudicial error. The court considered the jury instructions in their entirety, and noted that the trial court properly charged the jury on the issues of law that the defendant claimed were omitted. The court noted that although the exact language from the statute was not used, this oversight was forgiven because the jury was adequately instructed through other language, because the word “unlawfully” was used in place of “without authority of law.” Id.

¶ 15. We find that, even though a synonym of the phrase “without authority of law” did not appear in a separate enumerated paragraph in the second portion of Jury Instruction C-10, there was no error when reading the instruction as a whole. The jury was properly informed of the requisite findings under the statute and the proof needed to sustain such a charge.

D. Notice regarding deliberate design murder

¶ 16. Ramsey argues that another variance in the language of Count I of his indictment and Jury Instruction C-10 constituted a fatal error and violated his constitutional right to a fair trial. We disagree. The relevant language of Count I of the indictment states:

Jermaine A. Ramsey ... did willfully, unlawfully, feloniously and knowingly kill WILLIAM GILL, a human being, with deliberate design to effect death by shooting the said WILLIAM GILL, while engaged in the commission of Robbery ...

(emphasis added). The deliberate design murder language differs from that in Jury Instruction C-10, which states in relevant part:

[T]he court instructs the jury that if you find beyond a reasonable doubt that: ... 3. And during the commission of said robbery, William Gill, a human being, was killed with or without any design to effect his death ....

(emphasis added).

¶ 17. Ramsey argues that the jury instruction should have required a finding of deliberate design. The court addressed this issue in Doss v. State, 709 So.2d 369 (Miss.1996). In Doss, the capital murder indictment stated that the defendant killed the victim with malice aforethought while engaged in a robbery. Id. at 387(¶ 66). Doss argued the indictment required the State to prove intent to kill, and complained that the jury instructions allowed him to be convicted of capital murder if the killing occurred without deliberate design in the course of the robbery. ' Id. at 387(¶ 69). Although the indictment charged Doss with intent to kill, the court found that felony murder does not require any intent to kill and the capital murder indictment was adequate to put the defendant on notice of the felony murder charge. Id. at 388(¶73). Thus, Doss’s capital murder indictment did not require the State to prove intent. As support for its holding, Doss relied upon Griffin v. State, 557 So.2d 542, 549 (Miss.1990), which stated that “there is nothing about the statute which requires any intent to kill when a person is slain during the course of a robbery.” Id. Accordingly, we find this argument to be without merit.

II. WHETHER RAMSEY WAS DENIED A FAIR TRIAL, FUNDAMENTAL FAIRNESS, CONFRONTATION OF WITNESSES AND DUE PROCESS OF THE LAW WHERE HIS DECISION NOT TO TESTIFY WAS ALLEGEDLY DUE TO THE PROSECUTION’S THREAT TO IMPEACH RAMSEY’S TESTIMONY WITH STATEMENTS HE MADE TO A PRIVATE PSYCHOLOGIST

¶ 18. Before trial, Ramsey was interviewed by a psychologist, Dr. John Goff, to determine Ramsey’s mental capacity to stand trial. Ramsey claims that his decision not to testify arose when the State allegedly threatened to impeach his testimony by threatening to call Dr. Goff to the stand. We find this argument to be without merit, because the record does not indicate that the State used any intimidation tactics to keep Ramsey off the stand.

¶ 19. The court in Dizon v. State, 749 So.2d 996, 999(¶ 14) (Miss.1999) stated, “[I]f an accused is denied the right to testify on his own behalf, it is a constitutional violation regardless of whether the denial is a result of a refusal by the court or a refusal by the accused’s counsel to allow the accused to testify.” The court went on to suggest that if the defendant does not testify, the trial judge should, outside the presence of the jury, advise the defendant of the right to testify. Id.

¶ 20. In the instant case, the trial judge provided Ramsey with a detailed explanation of his right to decide to testify. The judge asked Ramsey whether he fully understood his rights, to which Ramsey replied in the affirmative and stated that he wanted to testify. After his statement, the State asked the trial court to rule on the admissibility of Ramsey’s statements made during a competency examination with Dr. Goff. Ramsey then informed his lawyers he had changed his mind about testifying. The trial judge followed up with Ramsey further, asking him if he understood that he was voluntarily waiving his right to testify. Again, Ramsey stated in the affirmative that he understood his rights. The record does not indicate the precise reason why Ramsey changed his mind, and we cannot presume the cause of his change of heart. Therefore, we affirm the trial court’s finding that Ramsey’s decision not to testify was voluntary.

III. WHETHER RAMSEY SHOULD HAVE BEEN GIVEN A LESSER-INCLUDED OFFENSE INSTRUCTION

¶ 21. Ramsey argues that he should have received a lesser-included offense instruction of obstructing justice (D-30 — d), one for aggravated assault (D-26-b) and that the court should have given an instruction for simple murder. A lesser-included offense instruction is required only “where a reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable doubt.” Mackbee v. State, 575 So.2d 16, 23 (Miss.1990). Whether a lesser offense instruction should be given turns on whether there exists an evidentiary basis for it. Hutchinson v. State, 594 So.2d 17, 20 (Miss.1992).

¶ 22. We find that the court did not err in refusing either of the lesser-included offense instructions, nor did the court err in not offering a simple murder instruction. Aggravated assault carries a stricter penalty (twenty years) than robbery (fifteen years). There is no dispute that Gill died as a result of being shot with a .25 Raven automatic pistol. The trial judge correctly held that aggravated assault was not under the facts of the ease in any way a lesser-included or related offense of robbery. In the same manner, an obstruction of justice charge was not appropriate, nor do the facts in the record support such a charge. Ramsey did not request a simple murder instruction and is thus procedurally barred from raising this issue on appeal.

IV. WHETHER THE COURT ERRED BY ADMITTING AUTOPSY PHOTOGRAPHS

¶ 23. Ramsey asserts that four of the photographs taken during the autopsy of Gill were inflammatory and irrelevant to the case. We find no merit to this contention.

¶ 24. The admission of photographs is within the discretion of the trial judge and his or her decision will be upheld absent an abuse of that discretion. Hart v. State, 637 So.2d 1329, 1335-36 (Miss.1994). However, “[ajutopsy photographs are admissible only if they possess probative value.” McNeal v. State, 551 So.2d 151, 159 (Miss.1989). They must not be so gruesome or used in such a way as to be overly inflammatory or prejudicial. Hurns v. State, 616 So.2d 313, 319 (Miss.1993).

¶ 25. Photos taken at the autopsy were admitted into evidence during the testimony of Dr. Steven Hayne from the state medical examiner’s office. One photo showed Gill’s body before it was cleaned. The photo was used to demonstrate how Gill’s face contained gravel and wounds consistent with the State’s contention that Gill had been dragged along the ground. The remaining photos were taken after the body had been cleaned. They consisted of head, neck, and shoulder shots, depicting the entrance and exit wounds of the bullets. Dr. Hayne used the photos to describe the nature and cause of Gill’s death, and to ascertain the angles and location of the gun used to effectuate that death.

¶ 26. Pictures such as these have been found to have probative value in showing the location and number of wounds, and the extent and force of the violence involved. Marks v. State, 532 So.2d 976, 981 (Miss.1988). Our supreme court has held that, “In considering the competency, relevancy and materiality of photographs, it is within the sound discretion of the trial judge to determine whether or not the photographs have a legitimate evidentiary purpose.” Voyles v. State, 362 So.2d 1236, 1241 (Miss.1978).

¶ 27. In determining whether the photographs of Gill should have been excluded, we look to Rule 403 of the Mississippi Rules of Evidence, which provides, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The mere fact that photographs depict an unpleasant or gruesome scene is no bar to their admission if they are relevant. Dase v. State, 356 So.2d 1179 (Miss.1978). As a general rule, “the fact that a photograph of the deceased in a homicide case might arouse the emotions of jurors does not of itself render it incompetent in evidence so long as introduction of the photograph serves some legitimate, evidentiary purpose.” May v. State, 199 So.2d 635, 640 (1967).

¶28. In the present case, the photographs were used in the State’s case-in-chief to corroborate the testimony of Officer K.D. Merchant who found the body, and who testified as to the condition of the scene as it existed on the night in question. Other photographs were used in conjunction with the testimony of Dr. Hayne who performed Gill’s autopsy, and who testified that his death was caused by bullet wounds to Gill’s head, neck and shoulder area. Under the above facts, there was no abuse of discretion on the part of the trial court in finding the photographs were more probative than prejudicial.

V. WHETHER RAMSEY WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

¶ 29. Ramsey cites six instances in which his counsel was allegedly ineffective. He argues counsel was ineffective by: (1) failing to object to leading questions asked of the State’s witnesses; (2) failing to object to hearsay; (3) failing to object to the State’s closing argument; (4) failing to request a lesser included offense instruction on simple murder; (5) failing to object to the variance between the indictment and the jury instructions; and (6) failing to raise a Batson challenge to the State’s alleged improper striking of certain jurors.

¶30. The case of Read v. State, 430 So.2d 832, 841 (Miss.1983), established that a convicted criminal is permitted to raise the issue of ineffective assistance of counsel on direct appeal, even if the matter has not been presented to the trial court. When the issue is raised, this Court’s review is strictly limited to the appellate record. Id. We may determine the merits of the claim only when “(a) ... the record affirmatively shows ineffectiveness of constitutional dimensions, or (b) the parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge able to consider the demeanor of witnesses, etc. are not needed.” Id. If these two conditions are not met, this Court should review the other issues in the case; if we otherwise affirm the conviction, we should do so without prejudice to the defendant’s right to raise the issue of ineffective assistance of counsel through appropriate post-conviction proceedings. Id.

¶ 31. In the instant case, the parties have not stipulated that the record is adequate for appellate review of the issue of ineffective assistance of counsel. We proceed to determine if the record “affirmatively shows ineffectiveness of constitutional dimensions.” If this Court determines that the record affirmatively shows constitutional ineffectiveness, “then it should have been apparent to the presiding judge, who had a duty ... to declare a mistrial or order a new trial sua sponte.” Colenburg v. State, 735 So.2d 1099, 1102(¶ 8) (Miss.Ct.App.1999). In other words, for this Court to reach the issue of ineffectiveness of counsel on Ramsey’s direct appeal, the record must show that counsel’s performance was so deficient that the trial court had a duty to declare a mistrial in order to prevent a mockery of justice. Id. (citing Parham v. State, 229 So.2d 582, 583 (Miss.1969)).

¶ 32. This Court applies the two-part test from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in reviewing claims of ineffective assistance of counsel. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, the defendant bears the burden of proof that (1) counsel’s performance was deficient, and (2) that the deficient performance prejudiced the defense. Id. This Court looks at the totality of the circumstances in determining whether counsel was effective. Id. There is a strong but rebuttable presumption that counsel’s performance fell within the wide range of reasonable professional assistance. Id. For instance, “counsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy.” Cole v. State, 666 So.2d 767, 777 (Miss.1995) (citing Murray v. Maggio, 736 F.2d 279 (5th Cir.1984)). The presumption may be rebutted with a showing that, but for counsel’s deficient performance, a different result would have occurred. Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985).

¶ 33. We find nothing in the record affirmatively showing ineffectiveness of constitutional dimensions. Further, having reviewed Ramsey’s complaints about his trial counsel, we note that Ramsey has failed to show prejudice and has not met his Strickland burden. The law is clear that mere allegations of prejudice will not suffice to meet the burden of proof. Johnston v. State, 730 So.2d 534, 538 (Miss.1997). We find Ramsey’s argument regarding ineffective assistance of counsel to be without merit.

VI. WHETHER RAMSEY WAS DENIED HIS RIGHT TO SILENCE WHEN THE STATE’S CLOSING ARGUMENTS REFERRED TO STEVENS AND THE VICTIM AS THE ONLY EYEWITNESSES

¶ 34. Ramsey argues that his right to silence was violated by the State’s alleged improper reference to Stevens and Gill as being the only eyewitnesses to the crime. Ramsey claims that these references prejudiced him before the jury.

¶ 35. The challenged portion of the prosecutor’s closing arguments is as follows:

Why did — -you know, why did [Stevens] come here and testify? Why did we call him? Because we thought you were entitled to hear the only eyewitness— the only live witness that we could produce. The only other witness to this crime Mr. Ramsey took care of. He’s not here to testify because Mr. Ramsey made sure that he couldn’t testify ... I think Glen Stevens said he asked him why did he do that. And he said, Man, he knows me. I couldn’t get away with this if I didn’t kill him.

Ramsey contends that by stating that Stevens was the only eyewitness, the prosecution improperly prejudiced him by calling attention to the fact that Ramsey did not testify on his own behalf. “A defendant has a constitutional right not to take the witness stand. This right becomes meaningless if comment or insinuation can be made reflecting upon his failure to testify.” Livingston v. State, 525 So.2d 1300, 1306 (Miss.1988). Therefore, the State is prohibited, either by direct comment, insinuation or innuendo, from commenting on the defendant’s failure to testify. However, what constitutes such prosecutorial wrongdoing is to be determined from the facts and circumstances of each case. Peterson v. State, 357 So.2d 113, 117 (Miss.1978).

¶ 36. In the case sub judice, the State referred to the witnesses they could “produce.” Our supreme court has held that it was not an improper comment on a capital murder defendant’s failure to testify when the prosecution stated that an accomplice’s testimony regarding a ripped shirt was the “only testimony” and the “only reliable information” made available. Walker v. State, 671 So.2d 581, 614 (Miss.1995). Based on Walker, we find this issue to be without merit.

VII. WHETHER THE STATE IMPROPERLY STRUCK A JUROR BASED ON RACE

¶ 37. Ramsey next raises the issue that the prosecutor improperly used three peremptory challenges against jurors 13,14 and alternate juror 28, contending the strikes were made in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). It is well settled that a trial court’s determinations under Batson are “afforded great deference because they are largely based on credibility.” Johnson v. State, 792 So.2d 253, 257(¶ 10) (Miss.2001). “In reviewing an alleged Batson violation, [an appellate court] will not reverse factual findings relating to a Batson challenge unless they are clearly erroneous.” Id. However, in this case, the assignment of error is procedurally barred by Ramsey’s failure to make a timely objection at trial. Russell v. State, 607 So.2d 1107, 1117 (Miss.1992).

¶ 38. A defendant seeking to establish a Batson violation must demonstrate (1) that he is a member of a “cognizable racial group,” (2) that the prosecutor has exercised peremptory challenges toward the elimination of veniremen of his race, and (3) that the facts and circumstances infer that the prosecutor used his peremptory challenges for the purpose of striking minorities. Lockett v. State, 517 So.2d 1346, 1349 (Miss.1987). Once the prima facie showing is made, the prosecutor must offer “ ‘a clear and reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the challenges.” Id. (citing Batson, 476 U.S. at 98, n. 20, 106 S.Ct. 1712).

¶ 39. In the present case, Ramsey failed to raise a Batson challenge at trial. The trial court therefore did not have the opportunity to make any fact-findings for this Court to review. Accordingly, Ramsey’s Batson challenge is without merit.

VIII. WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING DEFENSE COUNSEL TO USE THE CO-DEFENDANT’S COMPLETE JUVENILE RECORD TO IMPEACH CO-DEFENDANT’S TESTIMONY

¶ 40. Ramsey contends that although he was able to question Stevens about his juvenile record, the impeachment was limited because the scope of cross-examination was inadequate. We find this argument to be without merit.

¶ 41. The right to cross-examine as to prior convictions in order to show bias or interest was given constitutional dimension in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Because the rule announced in that case is a right guaranteed an accused under the Sixth Amendment, it should be interpreted liberally to favor the accused. Id. Davis, however, does not give the accused the absolute right to require a witness to disclose any prior convictions to attack his credibility simply because he had been convicted of a criminal offense. Id.

¶ 42. Under Mississippi Code Annotated § 43-21-561(5) (Supp.1979):

No adjudication upon the status of any child shall operate to impose any of the civil disabilities ordinarily imposed on an adult because of a criminal conviction, nor shall any child be deemed a criminal by reason of adjudication, nor shall that adjudication be deemed a conviction. A person in whose interest proceedings have been brought in the youth court may deny, without any penalty, the existence of those proceedings and any adjudication made in those proceedings. Except for the right of a defendant or prosecutor in criminal proceedings and a respondent or a youth court prosecutor in youth court proceedings to cross-examine a witness, including a defendant or respondent, to show bias or interest, no adjudication shall be used for impeachment purposes in any court.

According to the statute, a youth court adjudication can be used to cross-examine a witness in a criminal proceeding to show “bias or interest.”

¶ 43. Our review of the trial transcript shows that Ramsey’s counsel was able to adequately question Stevens concerning his relevant juvenile record. The record shows that Ramsey’s counsel asked Stevens about two particular instances where Stevens was ordered to attend training school while a youth in the State of Mississippi. One instance was deemed relevant by the trial court because it established the time and place where Stevens met Ramsey. The other instance was Stevens’ charge with auto theft, which the court found relevant to show Stevens had a propensity for dishonesty and a motive to steal Gill’s SUV. As shown by the record, Ramsey was permitted to and did question Stevens about these aspects of his juvenile record. Therefore, Ramsey’s argument is without merit.

IX. WHETHER THE COURT ERRED BY FAILING TO INSTRUCT THAT THE TESTIMONY OF AN ACCOMPLICE SHOULD BE VIEWED WITH CAUTION

¶44. Ramsey contends that the trial court should have instructed the jury to view Stevens’s testimony as an accomplice with caution. We find this argument to be without merit.

¶ 45. The trial judge is afforded discretion as to whether or not to give a cautionary jury instruction. Hussey v. State, 473 So.2d 478, 480 (Miss.1985). We will not disturb a lower court’s finding absent an abuse of discretion. Id. For an abuse of discretion to be found, it must be “a rare case with unusual circumstances which makes the evidence virtually irreconcilable with the verdict except for the testimony of the accomplice.” Id.

¶ 46. As a general rule, where accomplice testimony is presented by the State in a criminal case, the court should instruct the jury to weigh the testimony with caution. Wansley v. State, 734 So.2d 193(¶ 18) (Miss.Ct.App.1999). However, a trial court is under no duty to instruct the jury sua sponte, nor is a court required to submit instructions in addition to those prepared by the parties. Giles v. State, 650 So.2d 846, 854 (Miss.1995). In the present case, Ramsey did not submit such an instruction to the court, nor did he request one. Because Ramsey failed to submit or request such an instruction, this argument is procedurally barred.

¶ 47. Notwithstanding the procedural bar, this issue is without merit. Stevens was indicted as an accessory after the fact, not as an accomplice. Stevens’s testimony was corroborated by evidence such as the shell casings found in Ramsey’s home, the SUV keys found on Ramsey’s person, and the handgun found in the lot where Ramsey was arrested. The trial court discussed the issue of giving the jury a cautionary instruction, and based on the overwhelming evidence, decided the instruction was not necessary. We find no error.

X. WHETHER THE COURT ERRED BY FAILING TO GRANT A NEW TRIAL WHERE THE EVIDENCE USED TO CONVICT RAMSEY MAY HAVE BEEN INSUFFICIENT, BIASED AND PREJUDICIAL

¶ 48. It appears from Ramsey’s argument that he challenges both the weight and sufficiency of the evidence. An appellate court’s authority to interfere with the jury’s verdict is quite limited. Upon review of the sufficiency of the evidence, we consider all the evidence in the light most consistent with the verdict and give the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. Roberson v. State, 595 So.2d 1310, 1318 (Miss.1992). If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge is required. Id. But,

[o]n the other hand, if there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.

Roberson v. State, 595 So.2d 1310, 1318 (Miss.1992) (quoting McFee v. State, 511 So.2d 130, 133-134 (Miss.1987)). This standard is also applicable in capital cases. Mackbee v. State, 575 So.2d 16, 36 (Miss.1990).

¶ 49. Further, it is well-settled in Mississippi that in order to make a determination that the jury’s verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse that verdict only when it is determined that the circuit court has abused its discretion in failing to grant a new trial. Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

¶ 50. Our supreme court has stated that “a valid Section 97-3-19(2)(e) capital murder conviction must be supported by evidence legally sufficient to support a conviction of both the murder and the underlying felony had either been charged alone.” Fisher v. State, 481 So.2d 203, 212 (Miss.1985).

¶ 51. This Court held in Smith v. State, 904 So.2d 1217, 1220(¶8) (Miss.Ct.App. 2004), that evidence presented as to spent shell casings found in the parking lot of a nightclub and identical shell casings found at the defendant’s residence, along with testimony placing the defendant at the nightclub, was among evidence sufficient to support a jury finding of guilt of murder. In the present case, similar evidence was sufficient to support a jury finding of Ramsey’s guilt of capital murder. Stevens, an eyewitness, testified that Ramsey was in fact the shooter. Shell casings were found at Ramsey’s home in his chest of drawers, Gill’s personal effects were found in a garbage bag that Ramsey’s mother had attempted to throw away, and the spent cartridges matched the type of the gun that was used in the killing. Police officers testified as to the crime scene, the arrest of Ramsey as he was found walking towards the stolen SUV days after the crime, and the fact that the gun used to kill Gill was found lying in the grass near the spot where Ramsey was arrested.

¶ 52. Considering this evidence in the light most favorable to the verdict, we find there was substantial evidence of such quality to support Ramsey’s guilt of capital murder with the underlying felony of robbery. Moreover, based on the evidence discussed above that was presented against Ramsey, the verdict was not against the overwhelming weight of the evidence. Thus, we find that Ramsey’s arguments to be without merit and accordingly, we uphold his conviction of capital murder and robbery.

¶ 53. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF COUNT I, CAPITAL MURDER, AND SENTENCE OF LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE OR ANY FORM OF EARLY RELEASE, AND OF COUNT II, ROBBERY, AND SENTENCE TO SERVE FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TO RUN CONCURRENTLY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDER-DALE COUNTY.

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


author: SOUTHWICK, J., ROBERTS, J.,

text:
    Charlotte SHERRON, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01668-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.
    Rehearing Denied April 3, 2007.

      Phillip Broadhead, Oxford, Gary Goodwin, Columbus, attorneys for appellant.

      Office of the Attorney General by Jose Benjamin Simo, Charles W. Maris, Jackson, attorneys for appellee.
   SOUTHWICK, J.,

for the Court.

¶ 1. Charlotte Sherron was convicted of being an accessory after the fact to her husband’s crime of statutory rape by assisting the victim, who was her minor daughter, obtain an abortion. This assistance helped hide the husband’s crime by removing its most obvious evidence.

¶ 2. Since the time of the passage of the parental consent statute for a minor’s acquiring an abortion, no prior Mississippi appellate court decision has considered criminalizing in this way a parent’s decision to consent to a minor child’s abortion. Indeed, our search has not revealed a prosecution in any state on these grounds, though perhaps such prosecutions have occurred. We need not decide today the constitutionality of charging concealment of a rape due to the assistance a defendant gave her minor daughter to gain an abortion. Sherron raised the issue before trial only later to abandon it. Thus the issue was waived. We find no other error and affirm.

FACTS

¶ 3. In January 1988, the defendant Charlotte Sherron, then known as Charlotte Howard, gave birth to a daughter whom we will in this opinion call “Jane.” That alias is our best though limited means to avoid giving her undue publicity when we discuss her 2002 rape. Jane’s mother and father were not married. Charlotte Sherron had a daughter with another man in about 1992, then had a third daughter in about 1996 with Xavier Sherron. When Xavier and Charlotte Sherron married is unclear, but it was before the 2001-2002 events that we next describe.

¶ 4. Xavier Sherron began having sexual intercourse with his stepdaughter Jane in December 2001 or January 2002. At the time that the intercourse began, Jane was still thirteen years old. After learning she was pregnant, Jane with the permission and assistance of her mother obtained an abortion in Tuscaloosa, Alabama. Only later did police learn that Xavier Sherron had intercourse with Jane. He was arrested, indicted, and convicted of statutory rape. He received a sentence of twenty-seven years without the possibility of parole. In August 2002, the defendant here, Charlotte Sherron, was indicted as an accessory after the fact to Xavier Sherron’s crime of rape. The only event alleged in the indictment which constituted her crime was assisting her daughter obtain an abortion. Trial before a Lowndes County Circuit Court jury was not held until August 2004.

5. The first witness was the then-sixteen year old victim, Jane. She said that after her mother went to sleep, Xavier Sherron would leave her mother’s bedroom and go into Jane’s room, where he would touch her sexually and then later began to have intercourse with her. Jane was frightened of him. She testified that Xavier Sherron told her not to tell her mother, the defendant. He told Jane that her mother would be upset with her if she discovered the sexual intercourse.

¶ 6. Jane testified that Xavier Sherron would come into her room as frequently as every other night. She did not testify as to the exact dates of the sexual abuse. However, the defendant, Charlotte Sher-ron, gave a statement to police on May 22, 2002, which was introduced into evidence. She said that approximately one year before the statement, Jane told her that Xavier Sherron had touched her inappropriately. Charlotte Sherron asked her husband whether he was molesting Jane. Though he initially denied it, he finally admitted that he touched Jane but did not admit to intercourse. According to Charlotte Sherron’s statement, Xavier Sherron promised that he would not do this again. She stated, “I gave him another chance, but I did not trust him.” The sexual intercourse that made Jane pregnant occurred a few months later.

¶ 7. Jane testified that in February 2002, after she had turned fourteen, Xavier Sherron took her from school and asked whether she had experienced her monthly period. She had not. He then purchased a pregnancy test at a pharmacy. After arriving home, she complied with his demand that she take the test. It indicated that she was pregnant.

¶ 8. Xavier Sherron called his brother George Sherron, and also called Rosa and Greg Mostella, his wife’s maternal aunt and uncle. He notified them that he had impregnated Jane. He then confessed his actions to Charlotte Sherron. Greg Mos-tella suggested that the situation be kept secret from Alice Howard, Charlotte Sher-ron’s mother. Mostella stated that Ms. Howard would “kill” Xavier if she found out. According to Charlotte Sherron’s statement, the Mostellas and George Sher-ron suggested that law enforcement authorities also not be told, because she would lose custody of her children and her husband would go to jail. Charlotte Sher-ron said that she let Xavier Sherron continue to live with her because she did not know how she was going to pay the bills if he went to prison.

¶ 9. Jane and her mother talked in a room by themselves about whether Jane wanted an abortion. Jane testified that she had no doubts about wanting to have an abortion. She did not want to give birth to and raise a child fathered by Xavier Sherron. Jane testified that this same night, after everyone went to sleep, her mother put her and the two younger daughters in the car, with the goal of driving to her grandmother Alice Howard’s house. Xavier Sherron followed and tried “to run [them] off the road.” Xavier Sherron pulled alongside his wife’s vehicle, moved his van towards her car, but never hit her. Jane testified that “if we had kept on going, he would have actually ran us off the road.” Both vehicles stopped. Xavier Sherron told his wife to return to their house, and she did. He said that no one would learn about the pregnancy. Charlotte Sherron stated that she had Jane lock her door at night for protection.

¶ 10. The defendant telephoned the Women’s Clinic in Tuscaloosa, Alabama. The Clinic indicated that among the items needed to be scheduled for an abortion, Jane should have a picture identification card. Xavier Sherron took Jane to get the identification. On March 14, 2002, Xavier and Charlotte Sherron drove Jane to Tuscaloosa, Alabama, where the abortion was performed.

¶ 11. In May 2002, Jane visited with her uncle’s fiancee and discussed what had happened in a “what-if-this-happened-to-you” manner. The fiancee concluded that Jane was discussing herself. Jane’s uncle was told, and he told Charlotte Sherron’s mother, Alice Howard.

¶ 12. Howard took Jane to the Columbus Police Department. Jane spoke with investigator Wayne McClemore. Lieutenant McClemore testified that he took Jane’s statement, filed a report, and contacted the local Department of Human Services (DHS). DHS placed Jane in the care of her grandmother, Alice Howard, the person who upon learning of the crime had finally reported it.

¶ 13. The DHS investigation led to Xavier Sherron’s admission to the statutory rape. McClemore and another investigator picked Sherron up, drove him to the police department, and obtained a statement from him. A statement was also taken from Charlotte Sherron which included this:

I did call the Women’s Clinic in Tuscaloosa, Alabama, and ask them about how far along in the pregnancy a person has to be to have an abortion. They said four to six weeks. They also said they needed a birth certificate, a Social Security card, and a picture ID. Xavier took [Jane] to the driver’s license office in Columbus Tuesday, two days before [Jane] went to the doctor, to get her ID. Xavier and I took [Jane] to the Women’s Clinic, and [Jane] got the abortion. I filled out the paperwork for [Jane] at the clinic. Xavier, Uncle Greg and I took [Jane] to her checkup in Tuscaloosa. I did not tell anyone about this because I have nobody to confide in. I was scared to tell the police because [I] did not know what would happen to me or my family. Uncle Greg, Rosa Mos-tella and George Sherron told me not to tell the police or my mom because I would lose my kids, and George did not want his brother going to jail. I let Xavier stay because I did not know how I was going to pay the bills. They thought my mom would kill Xavier if she found out about this....

¶ 14. Charlotte Sherron did not testify at her trial. She was convicted and sentenced to three years’ imprisonment, which would be followed by two years of post-release supervision.

DISCUSSION

¶ 15. The defendant’s briefs on this appeal have been prepared as a collaborative effort by her trial counsel working with students under the supervision of an attorney-professor at the University of Mississippi School of Law Criminal Appeals Clinic. The work was ably done, with detail and clarity. Charlotte Sherron’s attorneys and near-attorneys would have us focus on defects in the proof of the elements of the offense of accessory after the fact to a felony. There is also an alleged instruction error which they urge should cause reversal. We will discuss those after addressing the constitutional issue that this prosecution raises, one that caused us to seek supplemental briefing.

Plain error as to infringement on abortion rights

¶ 16. This is a prosecution of a woman for assisting her daughter in acquiring an abortion. Those acts are said to have had the intent of aiding the defendant’s husband in hiding the fact that he had raped and impregnated this minor child. As we will discuss, under Mississippi law, the minor could not have acquired an abortion without a court order unless a parent agreed. The question is thus raised of whether the prosecution interferes with the child’s abortion rights recognized by the United States Supreme Court and which we must honor here.

¶ 17. The constitutional issue was not raised on appeal. However, the Court may “notice a plain error not identified or distinctly specified.” M.R.A.P. 28(a)(3). As to evidentiary rulings, a plain error is one “affecting substantial rights” of a party. M.R.E. 103(d). More generally, an appellate court, “on occasion when circumstances warranted, has noted the existence of errors in trial proceedings affecting substantial rights of the defendants although they were not brought to the attention of the trial court or of this Court.” Grubb v. State, 584 So.2d 786, 789 (Miss.1991).

¶ 18. Before examining more fully the specifics of the plain-error law, we turn to the specifics of the possibly plain-error facts in this case. We start with an examination of the crime with which Sherron was charged. Someone who has “concealed, received, or relieved any felon, or having aided or assisted any felon, knowing that such person had committed a felony, with intent to enable such felon to escape or to avoid arrest, trial, conviction or punishment, after the commission of such felony,” is an accessory after the fact. Miss.Code Ann. § 97-1-5 (Rev.2006). The manner in which Charlotte Sherron was said to have violated this statute was set out in the indictment:

Charlotte Sherron ... on or about the 14th day of March, 2002, ... did unlawfully, , wilfully, and feloniously conceal, receive, aid or assist Xavier Sherron, knowing that the said Xavier Sherron had committed the crime of Statutory Rape, a felony, with the intent to enable the said Xavier Sherron to avoid arrest, trial, conviction or punishment after the commission of said crime, by taking [the daughter we have called “Jane”], the victim of the crime, to obtain an abortion with the intent to hide the fact [of the impregnation by Xavier Sherron.]

¶ 19. Our recitation of the facts has indicated many things that Charlotte Sher-ron did not do — she did not contact law enforcement authorities; she did not throw her husband out of the house; she did not send her daughter elsewhere to escape this man; and she did not in any other way initiate an accounting for his crimes. Yet as the State must have recognized when preparing the indictment, most of the elements of Charlotte Sherron’s damning inaction are not crimes in Mississippi. The exception is failure to report child abuse. Miss.Code Ann. § 43-21-353 (Rev. 2004). The offense can be committed by physicians, school employees, and others who in the normal course of their occupations may encounter child abuse, but the crime also can be committed by “any other person” who becomes aware of the abuse. Id. Even if Charlotte Sherron could have been prosecuted for failing to report the abuse, the offense is a misdemeanor. Id.; Anthony v. State, 349 So.2d 1066, 1067 (Miss.1977) (crime with maximum sentence of a year in county jail denotes a misdemeanor). The State may have wished for a more substantial penalty.

¶ 20. So in drawing up an indictment that Charlotte Sherron tried to conceal the rape committed by Xavier Sherron, the prosecution did not charge the inactions. The only action for which she was indicted was taking her daughter “to obtain an abortion.... ” The indictment alleged that Charlotte Sherron’s assistance with the abortion was given with the intent to hide her husband’s crime. Though it was overwhelmingly proven that the mother failed to take any meaningful steps to protect the daughter from further abuse or to cause the husband’s crimes to be detected, this conviction as an accessory to that crime depends on Sherron’s consent to her daughter’s abortion.

¶ 21. Mississippi law requires a parent to consent in order for a child to have an abortion or else the girl must file a petition in court. Miss.Code Ann. §■ 41-41-53 (Rev.2005). Though the law in Alabama where the abortion was procured may be somewhat different, there has been no suggestion that the defendant’s agreement was unnecessary. Minors have a constitutional right to abortion, but that right can be restricted in certain ways. Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320,-, 126 S.Ct. 961, 966, 163 L.Ed.2d 812 (2006). Mississippi’s statutory parental consent provisions have been upheld as being consistent with federal constitutional principles. Pro-Choice Mississippi v. Fordice, 716 So.2d 645, 660 (Miss.1998).

¶ 22. This conviction’s interpretation of the crime of being an accessory after the fact could be seen as criminalizing the assistance a mother may legally give a daughter to abort a pregnancy, provided she gives that assistance with the intent of hiding a rape. A mother might determine that in order to avoid a criminal charge, she would not consent. The child would then need to file a petition in court on her own or with some other adult’s assistance, to have the need for consent waived. Even if a court order were obtained, the mother could still be subject to prosecution if she assisted in that petition. The United States Supreme Court has ruled that state rules that impose an “undue burden” on a female’s decision to abort a non-viable fetus are unconstitutional. Stenberg v. Carhart, 530 U.S. 914, 921, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 877, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)). The court explained that “undue burden” is “shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Id. The Mississippi Supreme Court adopted this standard and did not expand the right. Pro-Choice Mississippi, 716 So.2d at 655.

¶ 23. The evidence in the record fully supports that this defendant consistently failed her daughter in responding to the initial incidents of sexual abuse by Xavier Sherron and also in the response to the rape that led to pregnancy. If not for other members of the family, the crime may have remained undetected and, worst horror of all, the abuse may have continued. However, the sole acts for which Sherron was prosecuted were those connected with her giving the assistance that her daughter had to receive from one of her parents if she was to be permitted an abortion without a court order.

¶ 24. The question is whether prosecuting a parent for such activity unduly burdens the daughter’s recognized constitutional right. Since this issue was not raised in the appeal, we return now to the law of plain error. In her supplemental brief, Sherron argues that she had pursued this issue in the trial court. To prove this, Sherron submitted an affidavit which asserted her attorney had brought on for hearing a demurrer to the indictment. The demurrer, which is in the record, stated that the indictment sought to criminalize actions which “would be in the exercise of her absolute constitutional right secured unto her by the Fourteenth Amendment to the United States Constitution, as determined by the United States Supreme Court in the case of Roe v. Wade.”

¶ 25. No ruling on the demurrer appears in the record. The attorney’s affidavit asserts that the demurrer was denied but no order was ever entered. Proper steps to supplement the record with this affidavit were not taken. M.R.A.P. 10(e). Even had that supplementation occurred, and should further review, perhaps on a remand, determine that a ruling had been obtained, we would still have the question of whether that issue may be brought before us at this time. As the United States Supreme Court has indicated regarding its nearly identical practices regarding whether to address unraised potential error, there must be error, it must be plain, and it must affect a substantial right. United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

¶ 26. As to the first question of whether there was error at all, the inquiry concerns, quite simplistically, whether the trial court made a reviewable error. More must be shown than just that a defense right was not exercised. If a prosecutor in closing argument makes an assertion that might be interpreted to be a comment on the defendant’s constitutional right not to testify, a defense counsel may decide for tactical reasons not to object or seek to convince the court of. that error. There may be no trial because the accused waived the right to a trial and pled guilty. In both situations — failure to assert violation of a right and failure to assert a right — the trial judge committed no error by not insisting those rights be exercised. So we should examine whether the right asserted now, or from a different perspective, the error alleged in the trial court’s ruling, was the subject of a conscious waiver. “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ ” Id. at 733, 113 S.Ct. 1770. Forfeiture is a failure to recognize and assert a right. Waiver is a failure to assert though the alleged right has been identified. A right that was waived is lost on appeal unless there is proof that the waiver was defective. A valid waiver means there was no error. A right that had been forfeited can be the subject of plain error assertions. Id.

¶ 27. The pretrial demurrer to the indictment reveals that Sherron’s trial attorney sought a ruling on the right now asserted. The purported right was allegedly rejected by the court and then clearly abandoned by the defendant. In the post-trial motions, the issue was not asserted. In the briefing for the appeal, the issue was not raised. Therefore, even if the trial judge erred in overruling the demurrer, that possible error may have been waived. And we mean “waived” in distinction from “forfeited” as a conscious abandonment of the known right to assert this alleged trial error.

¶ 28. To determine if there has been waiver of this alleged constitutional right not to be prosecuted for assistance to a minor child’s legal abortion, we must identify the requirements for a valid waiver. Constitutional rights certainly may be waived. Such rights are consciously waived every time a suspect makes a valid confession despite the Fifth Amendment right not to incriminate oneself, or consents to a search despite the Fourth Amendment right to refuse consent. “Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.” Id. In support of the quoted observation, the United States Supreme Court cited a learned treatise on criminal law. The treatise authors concluded that determining which issues are proper to raise on appeal, and inferentially also at such procedural opportunities as in post-trial motions, is for the attorney:

Counsel was free to follow the time tested advice of countless advocates that inclusion of “every colorable claim” will “dilute and weaken a good case and not save a bad one.” It was for counsel to decide which claims were strong enough to be presented consistent with this strategy.

3 WayNE R. LaFave, Jerold H. Israel, Nancy J. King, Criminal Prooedure, 11.6(a) (West 1999), at 596 (quoting Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)).

¶ 29. Generically, this abandoned issue was one presented to the trial court as a basis for dismissing all charges, was allegedly found by the trial court to be unavailing, and was then discarded at the trial and appellate level by the defendant. Judgments have to be made by counsel as to the issues worth presenting. The implied judgment here by trial and appellate counsel was that there was insufficient merit, in light of other considered arguments, to continue pursuing a favorable ruling on the mother’s alleged right to be free from prosecution for assisting in her minor child’s receiving an abortion. Whether we would disagree with the decision or not does not affect the waiver. It does not matter what in hindsight appears to have been a good decision or a bad one. The attorneys had the right to make that decision, and it was procedurally made correctly and clearly. Even if an appellate court has the power to examine any issue, waiver ends the right to review.

¶ 30. In conclusion, for us to consider an issue of plain error, we should find that error caused a fundamental right of the defendant, Charlotte Sherron, to be denied. Randle v. State, 827 So.2d 705, 709 (Miss.2002). What has been argued here by the State is that even though Mississippi has made parents integral to the assertion of the constitutional right to an abortion by a minor, the right belongs to the minor. Its exercise is shared but not its ownership. On the other hand, Sherron argues that even though the constitutional right is with the minor, a parent’s fundamental right is to assist in a minor child’s pursuit of an abortion. Prosecuting the parent would under this argument constitute an undue burden on the child’s right. Regardless of such considerations, Sherron has validly waived the issue. Since waiver means the trial judge did not err in a manner subject to review, there is no need to resolve the extent of any implicated constitutional rights.

¶ 31. We now turn to the issues that were specifically raised in this appeal.

1. Weight and sufficiency of evidence.

¶ 32. In order to establish that Charlotte Sherron was an accessory after the fact to the statutory rape of Jane, the prosecution had to prove: (1) Xavier Sher-ron committed a completed felony; (2) Charlotte Sherron concealed, received, relieved, aided or assisted him when she knew he had committed a felony; and (3) Charlotte Sherron rendered such assistance or aid with the intent to enable Xavier Sherron to escape or avoid arrest, trial, conviction or punishment after he committed that felony. Miss.Code Ann. § 97-1-5; Mangum v. State, 762 So.2d 337, 342M3 (Miss.2000). Xavier Sherron’s felony conviction and twenty-seven year sentence are not disputed. The issues here are the second and third elements of accessory after the fact.

¶ 33. Challenges on appeal to the sufficiency of evidence require a determination of whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843 (Miss.2005). If the facts and inferences “point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty,” we must reverse and render. Id. Conversely, if the evidence is such that under a reasonable doubt standard of proof, reasonable and impartial jurors could find guilt on each element of the offense, we will affirm. Id.

¶ 34. We now examine the elements of the offense. As noted above, the first element is conceded, which is that there must have been a completed felony com- ■ mitted by someone else.

A. Conceal, Receive, Aid, or Assist

1135. To prove the second element of accessory after the fact, the prosecution had to prove that Charlotte Sherron “concealed, received, relieved, aided or assisted” her husband and that she knew he had committed a felony. Miss.Code Ann. § 97-1-5. There are no statutory definitions for the words “conceal,” “receive,” “aid,” or “assist.” We therefore construe them according to their common meanings. Miss.Code Ann. § 1-3-65 (Rev.2005).

¶ 36. The word “conceal” means “[t]o hide, secrete, or withhold from the knowledge of others.” Blace’s Law Dictionary (6th ed.1990). “Aid” means “[t]o support, help, assist or strengthen.” Id. “Assist” means “[t]o contribute effort in the complete accomplishment of an ultimate purpose intended to be effected by those engaged.” Id. Finally, “receive” means “[t]o take into possession and control; accept custody of; collect.” Id. These commonly understood words support that a defendant is guilty when she acts to prevent discovery and prosecution of a felony.

¶ 37. The evidence supported that Sherron “concealed, received, relieved, aided or assisted” her husband when she took Jane to Tuscaloosa for an abortion. The prosecution alleged that Charlotte Sherron committed these acts with the intent to conceal the fact that Xavier Sherron committed statutory rape. Sherron alleges that those acts were not personal assistance to the husband but to the child. She only “wanted to respect her daughter’s wishes and wanted to free her daughter of the burden of raising her stepfather’s child.” We find these arguments actually involve the issue of intent. The acts themselves suffice under the statutory language. We now turn to intent. "⅝

B. Intent

¶ 38. The State had to prove that Sherron intended to enable her husband “to escapé or avoid arrest, trial, conviction or punishment” after he committed statutory rape. Miss.Code Ann. § 97-1-5. Whether an accused had a specific intent is a question of fact for the jury. Duplantis v. State, 708 So.2d 1327, 1341 (Miss.1998). The jury makes its determination based on the facts shown in each case. Id. “Unless one expresses [her] intent, the only method by which intent may be proven is by showing the acts of the person involved at the time in question, and by showing the circumstances surrounding the incident.” Id. at 1342.

¶ 39. Sherron argues there is not sufficient evidence that she intended to shield her husband from punishment for statutory rape and her intent was solely to help her daughter. According to the State, a reasonable juror could conclude that regardless of what else she had in mind, Sherron also intended to hide her husband’s awful offense. Among the circumstances relevant that the jury had to consider as to intent were these: (a) Sherron did not report her husband’s crime; (b) Sherron helped her daughter end a pregnancy caused by statutory rape; and (c) Sherron continued to allow her husband to live with her and her children because they relied on his income.

¶ 40. In support of her mother, Jane indicated that Charlotte Sherron was afraid of Xavier Sherron. Jane testified that he was violent with her mother and that she once saw him choke her. Jane also testified that Xavier Sherron once threw a pot of grease against the wall during an argument with her mother. Xavier Sherron also pushed the defendant onto a couch and bit her breasts. Jane testified that, on occasion, he slammed flower pots on the floor and threw figurines at her mother. Jane’s grandmother, Ms. Howard, supported in her testimony that the defendant was afraid of her husband.

¶ 41. In the defense view, the intent for the assistance on the abortion was one to aid the minor child. It is further argued that failure to report the statutory rape was solely a function of Xavier Sherron’s intimidating nature. However, the defendant admitted to other considerations. Sherron stated, “Uncle Greg, Rosa Mostel-la and George Sherron told [her] not to tell the police or [Ms. Howard] because [she] would lose [her] kids, and George did not want his brother going to jail.” Sherron also explained that she allowed her husband to continue to live with her because she needed his monthly disability check. She also said that she did not report the crime because she did not know how she would pay her bills.

¶ 42. This evidence constitutes circumstantial proof that one of Sherron’s intents was to keep the crime of rape from being exposed. In addition, she likely had an intent to keep her young daughter from giving birth to a child who was fathered by rape. Quite simply and logically, the defendant could have operated with mixed purposes when she assisted in her daughter’s abortion.

¶ 43. This abortion was received in Alabama. For purposes of evaluating the legal effect of the assistance in obtaining an abortion, we nonetheless look to Mississippi law since our legislature, in criminalizing conduct such as being an accessory after-the-fact, must take into account the rights granted under other Mississippi statutes. A minor who has become pregnant due to sexual intercourse with a stepfather has the right to an abortion if her mother alone consents. Miss.Code Ann. § 41-41-53(2)(c). Absent the parental consent, a court would have had to consider whether to permit the abortion. Miss. Code Ann. § 41-41-53(3). The rape victim in this case testified that she never had any doubt that she wanted an abortion. The defendant also testified that she did not wish for her daughter to bear a child fathered by rape. There is no argument that there was anything illegal under Mississippi law in Jane’s having this abortion.

¶ 44. This mother’s assistance on the abortion could well be found to have had two intents behind it, one to support her daughter and the other to support her husband in preventing his crime from being exposed. When an act is done with multiple intents, it may be criminalized if one of the intents is an element of the relevant offense. In a prosecution for a conspiracy illegally to influence a federal election, the defendant alleged that he was more concerned about affecting some of the contests simultaneously being decided for local office:

In our view, petitioners err in seeking to attach significance to the fact that the primary motive behind their conspiracy was to affect the result in the local rather than the federal election. A single conspiracy may have several purposes, but if one of them — whether primary or secondary — be the violation of a federal law, the conspiracy is unlawful under federal law.

Anderson v. United States, 417 U.S. 211, 225-26, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974).

¶ 45. Some precedents hold that conviction may result even though the relevant criminal intent is a secondary one, but the criminal intent cannot be dwarfed by a legal one. United States v. Woodward, 149 F.3d 46, 71 (1st Cir.1998), cert den. 525 U.S. 1138, 119 S.Ct. 1026, 143 L.Ed.2d 37. With a different emphasis, another court stated that the illegal intent must have been “one of the [scheme’s] several dominant purposes.... ” United States v. Ellis, 935 F.2d 385 (1st Cir.1991) (emphasis added).

¶46. Summarizing some of this case law, one treatise-writer labeled the issue as one of “multiple intents,” and concluded that “so long as the defendant has the intention required by the definition of the crime, it is immaterial that he may also have had some other intention.” Wayne R. LaFave, Substantive CRIminal Law § 5.2(d) (West 2006).

¶ 47. We conclude that the existence of a legal intent sufficient to cause the defendant to commit the act being prosecuted is not a defense if the criminal intent was also present in more than a de minimis way. The existence of the improper intent will be a jury issue, determined largely by circumstantial evidence and guided by proper jury instructions. Since the jury certainly could find on this evidence that the defendant intended to hide her husband’s crime no matter what else she intended to do, there was sufficient evidence of a criminal intent.

¶ 48. We find no error in the jury’s evaluation of the conflicting evidence of intent and decision that Sherron acted to conceal Xavier Sherron’s crime when she took Jane to get an abortion.

2. Refusal of jury instruction

¶ 49. This defense instruction (D-8) was denied at trial: “The Court instructs the jury that the law does not require the defendant to report the crime committed against her daughter.” Sher-ron claimed that the instruction was the heart of her defense theory. The instruction was refused on the basis that it amounted to a comment on the evidence.

¶ 50. A defendant is entitled to submit instructions that present her theory of the case. Henry v. State, 816 So.2d 443, 447 (Miss.Ct.App.2002). An instruction should not single out certain parts of the evidence to the point that it amounts to a comment on the evidence. Manuel v. State, 667 So.2d 590, 592 (Miss.1995). “[W]here there is serious doubt as to whether a requested instruction should be given, doubt should ordinarily be resolved in favor of the accused.” Lenard v. State, 552 So.2d 93, 96 (Miss.1989). We will not reverse based on the denial of an instruction if “the jury has been properly, fully, and fairly instructed by other instructions.” Henry, 816 So.2d at 447.

¶ 51. Whether D-3 amounted to a comment on the evidence depends on the evidence. The prosecution alleged that, by taking Jane to have an abortion, Sherron acted to conceal her husband’s statutory rape. If the trial judge had instructed the jury that it is not illegal to neglect to report the fact that a husband committed statutory rape against his daughter, the jury could have taken that instruction to mean that it is, likewise, not illegal to conceal the rape. The instruction would have tended to cause jurors to believe that the substance of the prosecution’s allegation was a legal act. The question here is whether the instruction would tend in its emphasis to mislead the jurors on the actual legal questions before them. It was reasonable to conclude that it would.

¶ 52. Additionally, and more importantly, the instruction was legally in error. There are obligations to report sexual abuse of children. Sherron admitted that she “was first told by my daughter [Jane] about a year ago while I was at work at New Hope school that my husband Xavier Sherron had touch[ed] her on her breast and vagina area.” Sherron’s work for the New Hope school placed her under this obligation: “Any ... public or private school employee or any other person ... having reasonable cause to suspect that a child is ... an abused child, shall cause an oral report to be made immediately by telephone or otherwise and followed as soon thereafter as possible by a report in writing to the Department of Human Services-” Miss.Code Ann. § 43-21-353(1) (Rev.2004). An “abused child” is “a child whose parent, guardian or custodian or any person responsible for his care or support ... has caused ... upon said child sexual abuse.” Miss.Code Ann. § 43-21-105(m) (Rev.2004). Violations of those reporting obligations is punishable by a fine and by imprisonment of up to one year. Miss.Code Ann. § 43-21-353(7) (Rev.2004). Though a citizen does not always have a duty to report a crime, that was not the case here.

¶ 53. Denial of this instruction was proper.

¶ 54. As we find no reversible error on the issues raised and no plain error as to any other issue, we affirm Charlotte Sher-ron’s conviction and sentence.

¶ 55. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF ACCESSORY AFTER THE FACT TO STATUTORY RAPE AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TWO YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. ROBERTS, J., CONCURS IN PART AND RESULT AND SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY LEE AND MYERS, P JJ., AND GRIFFIS, J. KING C.J., NOT PARTICIPATING.

ROBERTS, J.,

Specially Concurring:

¶ 56. I concur with the majority’s affir-mance of Sherron’s conviction and sentence. I agree with the well-reasoned opinion on the waiver and plain error issues.

¶ 57. However, I write separately to express my view that even absent a valid waiver, there exists no constitutional impediment to the prosecution of Sherron on these facts. When one of the material motives of the accused is to help a known felon avoid detection, arrest, or prosecution, I detect no constitutional impediment to that prosecution based on the argument that by doing so, the State has placed an “undue burden” on the child victim’s right to obtain an abortion. I am not prepared to infer that Jane’s constitutional right to an abortion may provide a free pass for a third party to commit a felony.

¶ 58. The United States Supreme Court has struck down state “rules” that do, in fact, impose an “undue burden” on a female’s decision to abort a non-viable fetus. Stenberg v. Carhart, 530 U.S. 914, 921, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (holding “a law designed to further a State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability is unconstitutional.”). In my opinion, prosecuting the mother under the facts of this case creates no “undue burden” on a female’s decision to abort a nonviable fetus as was found unconstitutional in Stenberg. The Mississippi statute on the criminality of being an accessory after the fact, applied to circumstances involving statutory rape, is not a law designed to further this state’s interest in fetal life. As I appreciate the import of the Supreme Court’s rationale, a state may not, by statute, administrative rule, or some other mandatory requirement, impose upon a female’s right to abort a non-viable fetus by what has been described as an “undue burden.” It simply escapes me how the prosecution of the mother, Sherron, would fall into the category of an “undue burden.”

¶ 59. Here, there is no statute that could be found unconstitutional. “A legitimate state interest that does not create an unnecessary burden passes the undue burden test and is constitutional.” Pro-Choice Mississippi v. Fordice, 716 So.2d 645(¶ 38) (Miss.1998) (citing Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)). The State certainly has a legitimate interest in prosecuting those individuals who aid and assist known felons in avoiding arrest or prosecution. Additionally, the State’s “police power extends to protecting the health of its citizens” and that police power only “rises to an unconstitutional level when that power is exercised in an arbitrary manner.” Pro-Choice Mississippi, 716 So.2d (¶ 26). I find nothing arbitrary about the State’s decision to prosecute Sherron.

¶ 60. Regardless, it is not enough that something be an obstacle to an abortion in order for that obstacle to be an unconstitutional prohibition — it must be a substantial obstacle. Id. I fundamentally fail to appreciate just how prohibiting a parent from concealing the fact that their spouse committed statutory rape against their minor child amounts to a substantial obstacle to that minor child’s right to an abortion. In Stenberg, the U.S. Supreme Court examined the constitutionality of a Nebraska statute that banned partial birth abortions. The Supreme Court found that a statute that banned partial birth abortions amounted to a substantial obstacle to a woman’s right to an abortion. In this case, Sherron’s conviction did not restrict her daughter’s right to an abortion — it established a restriction on Sherron’s right to conceal the fact that her husband committed statutory rape of her own daughter.

¶ 61. In Pro-Choice Mississippi, 716 So.2d at (¶ 53) the Mississippi Supreme Court found that “[t]he State has a legitimate interest in protecting the health of its minors, and in ensuring that their decisions regarding abortion are well informed and carefully considered.” Further, the Mississippi Supreme Court held, “[mjanda-tory parental consent does not place an undue burden upon a minor’s right to obtain an abortion, particularly in light of the judicial bypass.” Id. If a parent has a right to consent to his or her daughter’s abortion, and that right is not an undue burden of that daughter’s right to an abortion, and the State has a legitimate interest in protecting the health of its minors, then reason dictates that the State may penalize a parent who consents to an abortion with the intent to aid someone in avoiding prosecution for statutory rape of the child that seeks the abortion. The defining feature of that event is intent rather than the act.

¶ 62. To me, this case more correctly should focus on Sherron’s motive and her intent. Certainly, Sherron could have consented to Jane’s abortion and taken her to Tuscaloosa for the procedure and avoided prosecution and conviction. After the abortion, had Sherron kicked Xavier out of the house, filed for divorce, moved out herself, told her mother, Ms. Howard, what happened, reported the incest to DHS or law enforcement as the law mandates, or taken any comparable steps to protect Jane, there would be no doubt that her true motive in assisting Jane with an abortion was to act in Jane’s best interests.

¶ 63. However, Sherron did not do anything like that. Instead, Sherron continued to live with Xavier and all her children as if nothing had happened, and she told Jane to keep her door locked at night so that Xavier could not leave their marital bed and rape Jane again. Sherron also entered into a conspiracy of silence with Xavier, George, Rosa, Greg, and Jane, and was the leading actor in forever destroying the most damning evidence of her husband’s guilt, the unborn fetus. In her own words, Jane did not report Xavier because she did not know how she would pay her bills without his monthly disability check. By her conduct, she proved to the jury that her true loyalty lay with Xavier, the felon. Even though one of Sherron’s motives may have been to protect what she saw as the best interest of her daughter by preventing the birth of a child fathered by a rapist, it is abundantly clear that an unlawful motive existed of helping her husband avoid prison so she could continue with her marriage and pay bills.

¶ 64. In my humble opinion, Sherron’s conviction as an accessory after the fact is not an undue burden on Jane’s constitutional right to an abortion. Sherron was prosecuted for helping her husband avoid detection of his awful crime. Prosecuting her for this evil conduct can not be said to have placed an undue burden on Jane’s abortion rights. Jane’s right to an abortion does not create immunity by which Sherron is allowed to conceal the fact that Xavier raped Jane and, in so doing, act in Sherron’s admitted financial self-interest. The jury weighed conflicting evidence of Sherron’s intent. Substantial evidence in the form of Sherron’s confession gave the jury sufficient cause to find as it did. I find no constitutional protection that effectively immunizes Sherron’s behavior. The majority opinion does not determine whether there exists a constitutional prohibition against prosecuting Sherron. As explained, I have concluded that no such prohibition exists and we should clearly so state. Otherwise, I concur in the majority’s resolution.

LEE AND MYERS, P.JJ., AND GRIFFIS, J., JOIN THIS OPINION.