author: KING, C.J.,

text:
    Charles Lavel STRINGER, Appellant, v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, Appellee. Charles Lavel Stringer, Appellant, v. American Bankers Insurance Company of Florida and Sidney Johnson, Appellees.
    Nos. 2005-CP-01345-COA, 2000-CT-00496-COA.
    Court of Appeals of Mississippi.
    June 26, 2007.
    Rehearing Denied Sept. 25, 2007.

      Charles Lavel Stringer, (Pro Se), for appellant.
    Walter D. Willson, William D. Purnell, Latisha Nicole Clinkscales, Ridgeland, attorneys for appellees.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. In 1988, Charles Stringer was arrested on a charge of drug possession. Bail for this offense was set at seventy five thousand dollars. Stringer entered into a contract with Surety Management Bonding Company to post his bail. Stringer paid a seven thousand five hundred dollar fee for this service. While on bond, Stringer was arrested in 1989 on a new charge. As a result of this new charge, the court revoked the bond posted for Stringer by Surety Management, and ordered him jailed. In 1992, Stringer filed suit (Stringer I) against Surety Management, American Bankers Insurance Company of Florida (as surety on the bond), and Robert Cooksey (individually and in his official capacity as agent for Surety Management), alleging that they wrongfully caused the revocation of his bond. Stringer failed to attain service of process on these defendants. Stringer later amended his complaint to include Sidney Johnson as a defendant (individually and in his official capacity as agent for Surety Management). Sidney Johnson was the only defendant to receive proper service of process which was effected on May 26, 1995.

¶ 2. In March 2000, American Bankers made a special appearance to contest jurisdiction, and to argue other procedural matters, including that the case was barred by the statute of limitations. The trial court found a lack of process and dismissed, with prejudice, the claim against American Bankers. Stringer filed a motion to alter or amend judgement, which was denied on July 26, 2000.

¶ 3. In Stringer v. American Bankers Insur. Co., 822 So.2d 1011 (Miss.Ct.App. 2002), this Court held that the dismissal for lack of process should have been without prejudice because, in the absence of process, American Bankers lacked standing to contest the other issues. The Court also held that the claims against the other parties were not ripe for appeal and remanded the case to the trial court.

¶ 4. On remand, Stringer chose to file a separate lawsuit on April 18, 2002, in Hinds County Circuit Court Civil Action No. 251-02-500CIV (Stringer II). This new action raised the identical claims raised in Stringer I. While filing this new action, Stringer still pursued his claims in Stringer I by filing for certiorari with the Mississippi Supreme Court on May 6, 2002.

¶ 5. On May 31, 2002, American Bankers moved in the circuit court to dismiss the Stringer II claims with prejudice based on the running of the statute of limitations. The circuit court withheld ruling on the motion to dismiss, pending the decision by the supreme court on the writ of certiorari in Stringer I. On July 31, 2002, the supreme court denied cert in Stringer I and, on August 29th, the circuit court granted American Bankers’ motion to dismiss in Stringer II, with prejudice. The circuit court’s order included the following findings, stated verbatim:

1. That the Plaintiffs claims against [American Bankers] are barred by the applicable Mississippi statute of limitations as provided in Miss.Code Ann. § 15-1-49.
2. That, pursuant to Miss. R. Civ. P. 12(b), [Stringer] has failed to state a claim upon which any relief can be granted, as [Stringer] has failed to allege and prove facts which would support that [American Bankers] breached the bond agreement or that [Stringer] is entitled to anything further under the bond.
3. That the claims against [American Bankers] should be dismissed with prejudice.

¶ 6. The court dismissed Stringer II with prejudice, but prior to this ruling, Stringer sought to bring American Bankers back into the original lawsuit (Stringer I). On June 2, 2003, Stringer requested that the Hinds County Circuit Clerk re-issue a summons to American Bankers. The summons was executed on July 15, 2003. Stringer never filed an amended complaint in Stringer I, nor did he seek leave from the circuit court to file a new complaint. The docket entries indicate, however, that American Bankers was served with process on April 10, 2000. Stringer did not timely appeal Stringer II, but rather filed a petition for writ of mandamus in the supreme court on December 5, 2002. Stringer requested that the supreme court direct the circuit court to enter a default judgment against American Bankers or, in the alternative, grant Stringer permission to file an out of time appeal (Stringer v. American Bankers, 2002-M-01995).

¶ 7. On July 14, 2003, Stringer filed a motion to recuse Hinds County Circuit Court Judge Swan Yerger from Stringer I. On August 13, 2003, American Bankers filed a motion to dismiss Stringer’s claims in Stringer I. The motion argued that by the court’s dismissal in Stringer II, Stringer’s claims were barred by the statute of limitations, as well as res judicata.

¶ 8. On January 22, 2004, the circuit court denied Stringer’s motion to recuse, finding the motion was without merit. Later, on August 23, 2004, the circuit court granted American Bankers’ motion to dismiss Stringer’s claims in Stringer I, with prejudice. On September 8, 2004, the circuit court modified its prior order granting American Bankers’ motion to dismiss. The court held that Stringer’s motion to recuse was without merit and the complaint was frivolous. The court also held that Stringer was barred from filing any further pro se actions in the First Judicial District of Hinds County without prior approval of one of the Hinds County Court judges based on his previous frivolous lawsuit filings. It further stipulated that if one of the judges approved Stringer’s pro se filings, that judge would be responsible for hearing Stringer’s case.

¶ 9. On February 1, 2005, the circuit court denied Stringer’s motion to alter or amend judgment, concluding that Stringer was simply reasserting the arguments from his previous complaint and those arguments were frivolous and without merit. On February 23, 2005, Stringer filed his notice of appeal of Stringer I, and appealed the final judgment entered on May 3, 2000, and the February 1, 2005 order denying Stringer’s motion to alter or amend judgment.

¶ 10. Stringer’s appeals in Stringer I and Stringer II have been consolidated for purposes of appeal. He has raised a number of issues on appeal, which this Court restates as follows:

I. Whether the trial court erred in granting America Bankers’ motion to dismiss.
II. Whether the trial court erred in denying Stringer’s motion to alter or amend judgment.
III. Whether the trial court erred in granting Sidney Johnson’s motion to dismiss.
IV. Whether the trial court erred in denying Stringer’s motion to re-cuse.

Finding these issues are barred by the statute of limitations and res judicata, we affirm the trial court’s decision.

ANALYSIS

I. Whether the trial court erred in granting American Bankers’ motion to dismiss.

¶ 11. Stringer argues that the trial court should not have granted American Bankers’ motion to dismiss. Stringer also raises additional issues with several trial court decisions involving his suit with American Bankers, including the trial court’s decision to deny Stringer’s motion to compel discovery, as well as the trial court’s decision to deny Stringer’s right to call witnesses.

¶ 12. The trial court dismissed Stringer’s claims in Stringer I, finding the claims were meritless, barred by the statute of limitations, and barred by the doctrine of res judicata, due to the circuit court’s final judgment in Stringer II.

¶ 13. In order to apply res judi-cata, the following identities must be present: “(1) identity of the subject matter of the action, (2) identity of the cause of action, (3) identity of the parties to the cause of action, and (4) identity of the quality or character of a person against whom a claim is made.” Pro-Choice Miss, v. Fordice, 716 So.2d 645, 665(¶ 70) (Miss. 1998) (citing Dunaway v. W.H. Hopper & Associates, Inc., 422 So.2d 749, 751 (Miss. 1982)). All identities must be present in order to successfully assert the defense of res judicata. Harrison v. Chandler-Sampson, Ins., Inc., 891 So.2d 224, 232(¶ 24) (Miss.2005).

¶ 14. This Court finds that all four identities are present and the trial court properly dismissed Stringer’s claims against American Bankers. On August 29, 2002, the court entered a final judgment in Stringer II, dismissing American Bankers from the case. The Court in Stringer II held that the statute of limitations and Rule 12(b)(6) of the Mississippi Rules of Civil Procedure barred Stringer’s claims against American Bankers. According to Rule 4 of the Mississippi Rules of Appellate Procedure, Stringer had thirty days in which to file a notice of appeal of this decision. Stringer did not timely file the notice, but rather filed a petition for a writ of mandamus, asking the supreme court to direct that the circuit court enter a default judgment against American Bankers or grant Stringer permission to file an out of time appeal. Due to Stringer’s failure to appeal this decision, Stringer II became a final judgment on September 29, 2002.

¶ 15. Stringer then attempted to revive his previous claims (Stringer I) against American Bankers. Stringer I raised the identical claims as Stringer II. Under res judicata, “a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.” Miller v. Miller, 838 So.2d 295, 297(¶5) (Miss.Ct.App.2002). The decision in Stringer II was a final judgment on the merits based on the same cause of action. Therefore, Stringer’s claims are not properly before this Court. For these reasons, Stringer’s claims are without merit.

II. Whether the trial court erred in denying Stringer’s motion to alter or amend judgment.

¶ 16. Stringer claims that the trial court should have granted his motion to alter or amend the court’s judgment in Stringer I. This issue is moot due to the circuit court’s proper finding that Stringer’s claims against American Bankers are barred by the doctrine of res judicata.

III. Whether the trial court erred in granting Sidney Johnson’s motion to dismiss.

¶ 17. On October 13, 1999, Johnson filed a motion to dismiss Stringer’s complaint for failure to state a cause of action upon which relief could be granted, pursuant to Rule 12(b)(6) and 12(c) of the Mississippi Rules of Civil Procedure. Johnson argued that he, as an employee of Surety Bonding Company, could not be liable for the actions and decisions of his employer based on the theories of respondeat superior and agency. The circuit court granted Johnson’s motion to dismiss, with prejudice, on January 10, 2000. On January 21, 2000, Stringer filed a motion to alter or amend the circuit court’s judgment and, on January 25, 2000, Johnson responded to the motion.

¶ 18. In Stringer I, the Court found that it was without jurisdiction to rule on Johnson’s motion for dismissal because it, along with several other claims asserted by Stringer against Johnson, was interlocutory in nature. See Stringer, 822 So.2d at 1015(¶ 12). The Court stated:

Interlocutory orders are not appealable as a matter of right. So long as an order “adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties,” it remains subject to revision by the trial court and is not appealable. M.R.C.P. 54(b); Fairley v. George County, 800 So.2d 1159, 1162(¶ 5) (Miss.2001).

Id.

¶ 19. The Court found that the order granting the motion to dismiss Johnson did not contain the necessary Rule 54 certifications to make it an appealable judgment. Id. At the time of appeal, Stringer still had pending claims against Surety Management Bonding Company and Robert Cooksey. Id.

¶ 20. Stringer now brings the issue of Johnson’s dismissal again before this Court for a second time on appeal. This time, however, we find that the judgments entered in favor of Johnson, including the order to dismiss with prejudice, as well as the order to vacate and set aside default judgment, are now properly before this Court and are no longer interlocutory.

¶ 21. The courts have adjudicated “all the claims or the rights and liabilities” of all the parties joined to this suit. Throughout the course of litigation, Stringer joined the following defendants to the litigation: American Bankers Insurance Company of Florida, Sidney Johnson, Charles “Tony” Davis, Surety Management and Robert Cooksey.

¶ 22. As previously discussed, Stringer can no longer assert claims against American Bankers, due to the trial court’s decision in Stringer II, which became a final judgment due to the lack of a timely appeal. The circuit court found Charles “Tony” Davis was improperly joined as a defendant in its July 26, 2000 order denying Stringer’s demand for judgment against him, so Stringer has no claims left to adjudicate regarding Davis. Stringer included Surety Management and Robert Cooksey in his initial 1992 court filing. However, Stringer has since failed to assert any claims against these defendants in this appeal. Even if Stringer asserted claims against these two defendants, Stringer is prevented from pursuing any possible claims against Surety Management and Cooksey. Stringer’s claims against Surety Management and Cooksey were based on the same set of facts and cause of action as Stringer’s claims against American Bankers. We have previously found that Stringer’s cause of action was barred by the statute of limitations and Rule 12(b)(6) of the Mississippi Rules of Civil Procedure. As such, Stringer would be prevented from pursuing any claims against Surety Management and Cooksey.

¶ 23. In 2000, the court granted Johnson’s motions to be dismissed from the complaint. We find that this decision is no longer interlocutory, and now rule that this dismissal was made a final order by the court’s holding in Stringer II. For these reasons, Stringer’s claims are without merit.

IV. Whether the trial court erred in denying Stringer’s motion to re-cuse.

¶ 24. Stringer claims that the trial court judge should have granted his motion to recuse. Because this Court finds that Stringer’s claims are barred by the doctrine of res judicata, this issue is moot.

AMERICAN BANKERS’ REQUEST FOR SANCTIONS

¶ 25. American Bankers requests this Court to impose sanctions on Stringer for filing a frivolous appeal. American Bankers cites to Rule 38 of the Mississippi Rules of Appellate Procedure which reads, “In a civil case to which Miss.Code Ann. § 11-3-23 (1991) does not apply, if the Supreme Court or Court of Appeals shall determine that an appeal is frivolous, it shall award just damages and single or double costs to the appellee.”

¶ 26. This Court finds that the American Bankers is entitled to costs, but declines to award any additional monetary sanctions.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . A reading of the record does not indicate that Robert Cooksey has ever been properly served process in this litigation. Furthermore, Stringer included only American Bankers in his appeal of the Stringer II decision.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    James M. COCHRAN a/k/a James Monroe Cochran, Sr., Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01364-COA.
    Court of Appeals of Mississippi.
    July 24, 2007.
    Rehearing Denied Nov. 27, 2007.

      James M. Cochran, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. James M. Cochran, a/k/a James Monroe Cochran, Sr., was indicted for Count I — rape, Count II — possession of a firearm by a convicted felon, and Count III — failure to register as a sex offender. Cochran pled guilty to incest in Count I and to possession of a firearm by a felon in Count II. The trial court sentenced him on Count I to serve a term of ten years, day for day, in the custody of the Mississippi Department of Corrections and fined him $10,000. The trial court sentenced him on Count II to serve a term of three years, to be served consecutively to Count I, and fined him $5,000. Cochran filed a motion for post-conviction relief, which was dismissed as untimely. He appeals and argues that: (1) his petition was not time-barred, (2) his plea was involuntary, (3) his sentence is illegal, (4) the indictment is defective, and (5) his counsel was ineffective. We find no error and affirm.

STANDARD OF REVIEW

¶ 2. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

I. Is Cochran’s petition time-barred?

II. Was Cochran’s plea voluntary?

III. Did Cochran receive ineffective assistance of counsel?

¶ 3. Cochran maintains it was error to procedurally bar his appeal, because the issues raised all survive the time bar. The State responds that all issues were raised untimely and are barred.

¶ 4. Cochran pled guilty on November 29, 2000. He did not seek post-conviction relief until October 27, 2005. A person who pleads guilty to a crime has three years from the date of entry of the judgment of conviction in which to file a motion for post-conviction relief. Miss. Code Ann. § 99-39-5(2) (Supp.2006). The statutory exceptions to the time bar include cases where:

there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

Id. Furthermore, this statute of limitations does not apply to “errors affecting fundamental constitutional rights, such as the right to a legal sentence.... ” Ivy v. State, 731 So.2d 601, 603(¶ 13) (Miss.1999). Nevertheless, “the mere assertion of a constitutional violation is not sufficient to overcome the time bar. There must at least appear to be some basis for the truth of the claim before the limitation period will be waived.” Stovall v. State, 873 So.2d 1056, 1058(¶ 7) (Miss.Ct.App.2004).

¶ 5. The time bar includes the petitioner’s post-conviction relief claims based on involuntariness of guilty pleas and ineffective assistance of counsel. Belmer v. State, 893 So.2d 250, 252(¶ 5) (Miss.Ct.App. 2004). Since Cochran makes no arguments that the statutory or constitutional claims exceptions apply to his voluntariness or ineffective counsel claims, we hold these claims are time-barred.

¶ 6. Notwithstanding any procedural bar on Cochran’s ineffective assistance claim, it is without merit. To prove ineffective assistance of counsel, Cochran must demonstrate that his counsel’s performance was deficient, and this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Cochran makes no allegation of prejudice.

¶ 7. We now reach his remaining issues. Unless there appears to be some basis for an exception, we must consider each issue time-barred as well.

IV. Is Cochran’s sentence illegal?

¶ 8. Cochran maintains that his ten year, day-for-day, sentence and $10,000 fíne exceeded the statutory maximum for the crime of incest. Cochran pled guilty to the crime of incest by “willfully, unlawfully, and feloniously hav[ing] sexual intercourse with [his] niece.” Mississippi Code Annotated Section 97-29-5 provides that “[pier-sons being within the degrees within which marriages are prohibited by law to be incestuous and void ... who shall ... be guilty of a single act of adultery or fornication, upon conviction, shall be punished by imprisonment ... for a term not exceeding ten (10) years.” The statute does not permit a fine, nor carry a mandatory day-for-day sentence. Additionally, Cochran was not indicted as an habitual offender.

¶ 9. Section 47-7-3 gives the parole board exclusive responsibility to grant or deny parole, and parole is not part of the court’s sentencing power. Mitchell v. State, 561 So.2d 1037, 1039 (Miss.1990). Any such language included in a sentencing order is mere surplusage and will not render the sentence illegal. Gardner v. State, 514 So.2d 292, 294 (Miss.1987); Norwood v. State, 846 So.2d 1048, 1050(¶ 3) (Miss.Ct.App.2003).

¶ 10. Here, however, Cochran pled guilty to a sex crime. Under Mississippi Code Annotated Section 47—7—3(1)(b), he is not eligible for parole. He is not eligible for earned time allowance. Miss. Code Ann. § 47-5-139(1)(d) (Rev.2004). Given this, we find no error in the sentence. It is not the trial court which makes Cochran’s sentence mandatory. It is the legislature, which acted within its constitutional power. Hinton v. State, 947 So.2d 979(116) (Miss.Ct.App.2006).

¶ 11. Further, although the statute did not provide for a fine, the trial court did have authority to impose a fine. Felder v. State, 876 So.2d 372, 374(¶8) (Miss.2004). The authority derives from Mississippi Code Annotated Section 99-19-32(1) (2000), which provides:

Offenses punishable by imprisonment in the State Penitentiary for more than one (1) year and for which no fine is provided elsewhere by statute may be punishable by a fine not in excess of Ten Thousand Dollars ($10,000). Such fine, if imposed, may be in addition to imprisonment or any other punishment or penalty authorized by law.

Since the crime of incest, under section 97-29-5, is punishable by imprisonment for more than one year and is not otherwise subject to fine, Cochran was subject to a fine not to exceed $10,000.

¶ 12. This issue has no merit.

V. Was the rape indictment fatally defective?

¶ 13. Cochran argues that his rape indictment was fatally defective because: (1) it was not filed by the circuit clerk, (2) it did not include the victim’s age, and (3) the alleged date of offense was not specific enough. The State does not address this argument.

¶ 14. Count I alleged that Cochran, in Greene County, Mississippi:

between February 1 through February 28, 1998, did feloniously and unlawfully have sexual intercourse with [Jane Doe ], a child above the age of fourteen years at the time in question, but without the consent of the said [Jane Doe] by administering alcohol to her which produced such a stuper [sic] or such inability of mind or weakness of body as to prevent effectual resistence [sic]
contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

It was signed by the district attorney and forewoman of the grand jury. The forewoman’s affidavit was notarized and dated by the circuit clerk on November 5, 1999. It was not file stamped. It was recorded on pages 1 and 2 in Cause Number 21-99-10,007(3).

¶ 15. A valid guilty plea waives all non-jurisdictional defects to an indictment. Kincaid v. State, 711 So.2d 873, 877(¶ 19) (Miss.1998). It does not waive the failure to charge a criminal offense or subject matter jurisdiction. Id. at (¶ 20).

A.Indictment not filed

¶ 16. “An indictment shall include ... [t]he date on which the indictment was filed in court....” URCCC 7.06. “All indictments ... must be marked ‘filed,’ and such entry be dated and signed by the clerk.” Miss.Code Ann. § 99-7-9 (Rev. 2000). If not, the indictment is invalid. Williamson v. State, 64 Miss. 229, 232-33, 1 So. 171, 172 (1887). However, the error is merely procedural where the facts reveal that the indictment was returned by the grand jury and not manufactured by the State. Watts v. State, 828 So.2d 835, 842(¶ 15) (Miss.Ct.App.2002).

¶ 17. For example, in Watts, the “evidence was clear that the indictment was filed in Minute Book 12 page 451 of the Winton County Circuit Court.” Id. In Kincaid, there was no error where the clerk’s copy of the indictment was stamped filed by the clerk. Kincaid, 711 So.2d at 877(¶ 21).

¶ 18. Here, the circuit clerk notarized the forewoman’s affidavit on the indictment, signed and dated the indictment, and recorded it in the court file. The clerk assigned it a cause number and handwrote it on the indictment. Although she failed to stamp the indictment “filed,” the evidence is clear that the indictment was returned by the grand jury and not manufactured by the State. The error is therefore procedural only and does not overcome the time bar.

B. Victim’s age

¶ 19. Cochran complains that the victim’s age was an essential element of rape. He believes that failure to list her age deprived him of complete notice of the charge and any potential defenses.

¶ 20. Cochran was charged with rape “by administering to such person any substance or liquid which shall produce such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance.” Miss.Code Ann. § 97-3-65(4)(a) (Rev.2006). This language was quoted nearly verbatim in the indictment. Jane’s age is not an essential element of this crime. This issue has no merit.

C. Date of offense

¶ 21. Finally, Cochran complains that February 1998 is not a specific enough date. Since this argument goes neither to an essential element nor subject matter jurisdiction in this case, this issue is time-barred.

CONCLUSION

¶22. The circuit court correctly dismissed Cochran’s petition. He failed to demonstrate a claim which successfully defeated the time bar.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF GREENE COUNTY DISMISSING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GREENE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.

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


text:
    Lamont JACKSON a/k/a Lamont Demond Jackson, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02368-COA.
    Court of Appeals of Mississippi.
    July 24, 2007.
    Rehearing Denied Nov. 27, 2007.

      Phillip W. Broadhead, Oxford, Ross Si-mons, attorneys for appellant.
    Office of the Attorney General by Desh-un T. Martin, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Lamont Jackson, a/k/a Lamont De-mond Jackson, was convicted of armed carjacking. The trial court sentenced him to serve a term of ten years in the custody of the Mississippi Department of Corrections and ordered him to pay a $2,500 fine and court costs. Jackson appeals and argues that: (1) the verdict is against the overwhelming weight of the evidence, (2) his attorney was ineffective for failing to object to certain evidence, and (3) the admission of that evidence was plain error. We find no error and affirm.

FACTS

¶ 2. In the early morning hours of July 21, 2002, Cheryl Cunningham, Tammy Nicholson Haley, and Nathaniel Fantroy were parked in a white Pontiac Firebird, in a driveway in Pascagoula. It was raining outside, and they remained in the car talking. Cunningham was in the driver seat, Haley was the front passenger, and Fantroy was in the back seat.

¶ 3. At about 2:15 a.m., a man approached the passenger door with a gun and ordered Haley and Fantroy out of the car. The perpetrator was described as a dark skinned black man in a black shirt. Another armed man approached the driver door and ordered Cunningham out of the car. He was a light skinned black man in a white shirt. The three occupants went into the house. The white-shirted man got in the driver’s seat, and the black-shirted man got in the passenger seat. They drove toward the nearby Navy base.

¶ 4. Officer Randy Nigard responded to the scene at 2:53 a.m. and interviewed Cunningham and Haley. At 3:14 a.m., Gautier Police Officer Vincent D. Nicholson spotted two vehicles crossing the Pas-cagoula Bridge on Highway 90. The first was a white Nissan Maxima, owned and driven by Jackson. He was a New Orleans resident and member of the Navy stationed in Pascagoula. The Firebird tailgated Jackson at fifty miles per hour. The Firebird had a “For Navy Use Only” license plate. Nicholson radioed for backup, and Officers Danny Sullover and Scott Hawkins responded.

¶ 5. Jackson turned north on Gautier-Vancleave Road, and the Firebird followed. The ears were in the right, northbound lane. When police tried to pull over the Firebird, it pulled into the left, northbound lane beside Jackson. The Fire-bird’s passenger window and Jackson’s driver window rolled down, and they talked. The Firebird sped off, and Nicholson and Sullover followed. Jackson pulled up to a gas pump at the Easy Serve Gas Station, and Hawkins followed.

¶ 6. Jackson was detained and arrested for driving without a license. He denied knowing who was driving the Firebird and consented to a search of his car. On the front passenger seat was a wet, black T-shirt with a white Reebok logo. He told officers he was wearing it earlier and got caught in the rain. He also told officers he had a gun, which was found in the trunk. The gun was a Ruger 9 millimeter, with a laser sight mounted below the barrel. All three victims later identified Jackson as the black-shirted carj acker.

¶ 7. As for the Firebird, it led police on a high speed chase westbound on I — 10. Police blew the tires out, and the car wrecked in the median. When police caught up with it, the car was abandoned. A black Lorcin 9 millimeter pistol, with a laser sight mounted below the barrel, was found inside, along with 9 millimeter ammunition. The Lorcin was stolen from the New Orleans Police Department.

¶ 8. At trial, the victims identified Jackson as the black-shirted carjacker. However, no one could identify the Reebok shirt. Jackson and Antonio Robinson testified Jackson was attending a party at Robinson’s home on the night in question. He lived two blocks away from the carjacking. They testified the party did not end until 3:00 a.m., at which time Jackson started for New Orleans. The jury deliberated over two hours and returned a guilty verdict. Jackson appeals.

ANALYSIS

I. Is the verdict against the overwhelming weight of the evidence?

¶ 9. Jackson argues that the verdict is against the overwhelming weight of the evidence, because it is based on questionable eyewitness identification, confusion and coincidence. The State does not address this argument at all. It only argues the sufficiency of the evidence.

¶ 10. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005). The evidence is weighed in the light most favorable to the verdict. Id. The power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Id. If the verdict is against the overwhelming weight of the evidence, the proper remedy is to grant a new trial. Id.

¶ 11. Where virtually the only evidence of guilt comes from a highly suspect or uncertain identification, the conviction is against the overwhelming weight of the evidence. Chapman v. State, 725 So.2d 744, 745(¶ 4) (Miss.1998) (highly suspect identification); Edwards v. State, 736 So.2d 475, 483(¶ 29) (Miss.Ct.App.1998) (uncertain identification). On the other hand, where “the testimony of the prosecu-trix ... is supported by other evidence, we have held that such conviction is not against the overwhelming weight of the evidence.” Riddle v. State, 413 So.2d 737, 739 (Miss.1982).

¶ 12. In Chapman, the supreme court reversed a robbery conviction, because “virtually the only evidence” was the victim’s unreliable identification. 725 So.2d at 747(¶ 11). One hour after the robbery, the victim failed to identify Chapman as the robber on three separate occasions. Id. at 744(¶ 2). It was not until the next day at the police station that the victim identified Chapman. Id. He was at the police station on an unrelated matter. Id. When he saw the victim staring, Chapman said he was not the robber. Id. The supreme court held the victim’s identification was highly suspect, because he failed to identify Chapman on three occasions shortly after the robbery. Id. Chapman was wearing different clothes than the robber. Id. at 747(¶ 11). Finally, Chapman’s statement was not evidence of guilt. Id. at 746(¶ 8). He was present when his friend was tentatively identified as the robber, and “it would be very surprising if Chapman had not learned that Bryan was the victim of a robbery_ It is also unsurprising that Chapman would profess his innocence after he observed Bryan staring at him in an accusatory manner.” Id.

¶ 13. Subsequently, this Court reversed and remanded a murder conviction where the only person who identified the defendant was not certain he was the perpetrator. Edwards, 736 So.2d at 483(¶ 29). The eyewitness said he “thought” or “believed” Edwards was the gunman. Id. at 481(¶ 24). On cross-examination, the eyewitness said he was not sure. Id. The only positive identification came through a hearsay statement in which Lakesha Thames said she overheard the eyewitness say Edwards “done shot that boy.” Id. at 482(¶26). The Court distinguished the issue as one of certainty, not credibility. Id. at 482(¶ 27). We held, “[i]f one witness expresses certainty in identification and is then impeached or contrary evidence is introduced, that conflict is a matter for the jury to resolve.” Id. “If only one person makes the identification and there is no other evidence that adds to it, then if that witness himself is not convinced beyond a reasonable doubt, neither may be the jury.” Id. at 483(¶ 29). The only evidence that was left to identify Edwards was tenuous. Id. at 483(1131). “Edwards was in the vicinity of the crime.... So were other people. He also had on clothes similar to that worn by the [criminal]. The clothes were merely described as ‘dark’ and there was nothing distinctive about them.” Id. at 482(¶ 29). The prosecution never produced a weapon, motive, or any physical evidence linking Edwards to the crime. Id. at 484(¶ 32). No one saw Edwards with a gun. Id. “Uncorroborated by any other substantial evidence regarding a positive identification, the Thames testimony about what she heard Warren say is simply too slender a reed on which to support a conviction.” Id.

¶ 14. The supreme court distinguished Edwards in Brengettcy v. State, 794 So.2d 987, 997(1128) (Miss.2001). Brengettcy was accused of murder in a drive-by shooting. Id. at 991(¶ 4). One eyewitness positively identified Brengettcy as the shooter. Id. This was corroborated by three other eyewitnesses who identified Brengettcy as the person occupying the front passenger seat of the car, and other eyewitness testimony that the gunfire came from the front passenger seat. Id. The court noted that the eyewitnesses who positively saw Bren-gettcy, never vacillated in their identification. Id. at 997(¶ 28).

¶ 15. With these cases in mind, we turn to the weight of the evidence in this case. The evidence against Jackson consists of three eyewitness identifications, the Reebok shirt, the fact he was seen speaking with the driver of Firebird, his gun, the New Orleans gun, and the Navy tag. Further, he was in the vicinity of the site from where the car was stolen.

¶ 16. Not one witness could identify the Reebok shirt. Further, while both guns had mounted laser scopes, none of the victims described the guns in question as having this feature. At trial, they could not describe the guns’ color. Officer Randy Nigard testified that one of the victims had previously described both guns as silver. The Lorcin in the Firebird was black. There is no description of the color of Jackson’s Ruger.

¶ 17. As for the Navy tag, its probative value is too tenuous. The mere fact that Jackson was in the Navy is not enough to tie him to the stolen Navy tag. Indeed, Pascagoula is a Navy town. There is literally a fleet of people who could be incriminated by this tag. This evidence might be more probative if this case were set in Corinth, as opposed to Pascagoula.

¶ 18. The New Orleans connection is likewise tenuous, given the proximity. There was absolutely no physical evidence that linked Jackson to the Lorcin. The prosecutor argued, without objection, that because the Lorcin and Jackson were from New Orleans, he stole the Lorcin in New Orleans before he stole the car in Pasca-goula. There is no evidence to support this allegation of a prior bad act. The only thing the Lorcin’s origin could indicate is that the driver of the Firebird also was from New Orleans.

¶ 19. However, this brings us to the two key pieces of evidence — the identification and the words exchanged during the police chase. It was a dark, rainy night. Jackson had a mustache and goatee, which none of the victims described. Nevertheless, when presented with a photo lineup, all victims picked out Jackson, within a matter of seconds of viewing the lineup. It was disputed whether Haley and Cunningham performed their photo identifications together. However, Fantroy’s identification definitely was performed solo. Likewise, all three identified Jackson in court as the blaek-shirted earjacker.

¶ 20. Jackson does not argue that the identifications were inadmissible or that the photo lineup itself was unconstitutionally suggestive. Indeed, all six photos were of dark skinned, black males between the ages of twenty and thirty, with similarly shaped goatees. Jackson wore a blue tank top in the photo, while two of the other men in the photos wore black shirts.

¶ 21. Instead, he argues that the way the police officer phrased the question to the victims was unduly suggestive. Cunningham stated that they were asked “if there was anyone fitting the description.” Jackson believes the phrase “fits the description” was too vague. He maintains it did not invite the victims to pick out the actual earjacker but rather anyone who “fit” his description. First, all participants in the lineup fit relatively the same description. Secondly, the exact question posed to the victims was in dispute. Haley testified, “He said he wanted us to make sure that we got the right one, the one that came there that had the gun on me.” According to Haley, she and Cunningham picked out Jackson’s picture, “and said that was him.” Officer Jeff Pacey testified:

And I discussed with them what I wanted them to do. I wanted them to look at the photographs. Be careful and not just pick somebody out because they felt like they needed to; to take their time. They were under no pressure to look at it, and if they saw who it was that stole their car, you know, to point them out. If they didn’t know or if they were unsure, not to pick anybody.

Thus, the jury was presented with a dispute of fact to resolve. Even if they resolved it in favor of Cunningham’s testimony, they were still free to consider that in weighing the reliability of the three eyewitness identifications, made less than twelve hours after the carjacking. All three victims picked out Jackson in a matter of seconds and never wavered. All three were face to face with the black-shirted earjacker and had time to observe him.

¶ 22. As for the words exchanged during the police chase, the jury was given two different accounts. The police testified only one person was in the Firebird, and he and Jackson exchanged words. Jackson maintained that two unknown people were in the Firebird and were yelling at him, possibly for driving too slow. Once more, this was a dispute for the jury to resolve.

¶ 23. Given the identification testimony, we are not convinced that the verdict worked an unconscionable injustice. The eyewitnesses never vacillated, and their testimony is corroborated by Jackson’s conduct during the police chase. Pursuant to Brengettcy and Riddle, we must affirm the verdict as not being against the overwhelming weight of the evidence.

II. Was counsel ineffective when he failed to object to the admission of Jackson’s T-shirt and gun?

¶ 24. Jackson argues his trial counsel should have objected to the relevancy of his T-shirt and gun. Jackson believes the evidence would have been excluded, and the result of his trial would have been different. The State’s sole response is that there is “nothing in the record to suggest these arguments merit anything.”

¶25. Cunningham and Haley testified the earjacker wore a black shirt “with some writing on” it. Fantroy, however, testified it was just a black shirt, with nothing special about it. They could not identify the Reebok shirt. Officer Scott Wilson identified it as the wet shirt he found on the front passenger seat of Jackson’s car. Jackson admitted he wore it that night.

¶26. Likewise, none of the victims could identify Jackson’s Ruger. They were only able to describe it as a handgun and could not describe the color. Additionally, the Lorcin found in the Firebird was black as opposed to silver. It was the only gun found in that car.

¶ 27. Constitutional issues are reviewed de novo. Thoms v. Thoms, 928 So.2d 852, 855(¶ 9) (Miss.2006). To prove ineffective assistance of counsel, Jackson must demonstrate that his counsel’s performance was deficient, and this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Jackson. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990).

¶ 28. To evaluate the deficiency prong of the Strickland analysis:

a court ... must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.

Strickland, 466 U.S. at 690, 104 S.Ct. 2052. There is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Id. at 694. This Court will not second guess counsel’s reasonable trial strategy. Hall v. State, 906 So.2d 34, 38(¶ 15) (Miss.Ct. App.2004).

¶ 29. To evaluate prejudice, “the defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

¶ 30. We find that Jackson failed to satisfy the deficiency prong of the Strickland analysis. First, the shirt and gun are relevant evidence, because he wore the shirt and had the gun that night. Both were similar to the limited descriptions the victims gave.

¶ 31. Secondly, failure to object in this case was reasonable trial strategy. As the record reflects, trial counsel’s strategy was to impeach the identifications. Each victim testified they did not recognize the Reebok shirt. As appellate counsel points out, Reebok is a readily recognizable logo, and not one of the witnesses included it in their description, nor could they identify it on the stand as the carjacker’s shirt. Furthermore, trial counsel’s cross-examination pointed out that none of the witnesses described the gun as having a mounted laser scope, as did Jackson’s gun. However, when asked to describe and identify Jackson’s gun, the officers testified that the laser scope was the distinctive feature which caused them to recognize it at trial. Trial counsel also had the arresting officers admit Jackson consented to the search of his car and volunteered the fact that he had a gun and had worn the Reebok shirt earlier. This was all probative of the fact that Jackson was not the carjacker, but rather a victim of confusion and misidentification.

¶ 32. This issue has no merit.

III. Was the admission of Jackson’s T-shirt and gun plain error ?

¶ 33. In the alternative, Jackson avers that the admission of these exhibits constitutes plain error. He argues that the prosecution failed to link the shirt and Ruger to the crime in question; therefore, the admissibility of these items was plain error. The State responds that these were relevant, and there is no plain error.

¶34. A ti’ial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Fisher v. State, 690 So.2d 268, 274 (Miss.1996). A “defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal.” Foster v. State, 639 So.2d 1263, 1289 (Miss. 1994). Such error exists where it affects substantial rights of the defendant. Grubb v. State, 584 So.2d 786, 789 (Miss.1991). The plain error doctrine includes the review of errors that “seriously affect[ ] the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

¶ 35. All relevant evidence is admissible unless otherwise provided. M.R.E. 402. Relevant evidence is any evidence which tends to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without that evidence. M.R.E. 401. “Although 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.” M.R.E. 403. Tools, weapons, and other physical evidence used or usable in the commission of a crime are admissible into evidence, provided they are relevant and not too remote. Bryant v. State, 850 So.2d 1130, 1134(¶ 12) (Miss.Ct.App.2002).

¶ 36. We find no error, much less plain error, in the admission of these two items. They were relevant to the issue of identity and were not too remote in space nor time. The shirt and gun were similar to the description given by the victims. Jackson admittedly wore the shirt and possessed the gun during the time in question. He and Robinson placed Jackson within two blocks of the site of the carjacking. He was caught with these items an hour after the carjacking, leaving Pascagoula.

¶ 37. Nevertheless, Jackson argues that the case of Walker v. State, 878 So.2d 913 (Miss.2004), mandates a plain error reversal. First, we note that Walker did not rely on plain error. Walker, unlike Jackson, raised the issue in the trial court. Id. at 915(¶ 9). Secondly, Walker is distinguishable. Walker was on trial for two counts of capital rape. Id. at 914(¶ 6). A towel soiled with semen was allowed into evidence. Id. at (¶ 7). The supreme court held the evidence was inadmissible for two reasons. Id. at 917 (¶¶ 22-23). The semen was never authenticated as Walker’s, even though the prosecution proffered it as his. Id. at 916(¶ 16). The court held, “Even though M.M. testified regarding how she retrieved the towel, the prosecution’s failure to positively connect the semen ... to Walker renders the towel inadmissible.” Id. at 915(¶ 15). Additionally, the alleged towel incident was too remote in time. Id. at 917(¶ 22). It was alleged that he had used it to clean himself after sexual battery of M.M. one year before the incident for which he was indicted. Id. The supreme court held that admission of the towel violated Rule 403, infringed upon Walker’s right to a fair trial, and served only to bolster testimony. Id. at 915-16(¶ 15).

¶ 38. This is not a ease where the evidence was too remote or not linked to the defendant. Jackson admits he had these items on the night and in the neighborhood in question. Further, all that is needed to authenticate an item is “evidence sufficient to support a finding that the matter in question is what the proponent claims.” M.R.E. 901. Wilson and Jackson authenticated the shirt and gun as his items seized from his car one hour after the carjacking. Chain of custody was established.

¶ 39. This issue has no merit.

¶ 40. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY OF CONVICTION OF ARMED CARJACKING AND SENTENCE TO SERVE A TERM OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAY A FINE OF $2,500 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

KING, C.J., LEE, P.J., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. MYERS, P.J., CONCURS IN RESULT ONLY.


author: ISHEE, J.,

text:
    James Barton WILLIAMS and Pamela Ann Talbot Williams, Appellants v. ESTATE OF C.E. MORRISON, Deceased, by and Through Jim MORRISON, Executor, and Carla J. Morrison, Appellees.
    No. 2006-CA-01085-COA.
    Court of Appeals of Mississippi.
    Oct. 30, 2007.

      Michael Lee Dulaney, attorney for appellants.
    Katherine S. Kerby, Columbus, attorney for appellees.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. James Barton Williams and Pamela Ann Talbot Williams (Williams) filed suit against C.E. Morrison and Carla J. Morrison (Morrisons) in the Chancery Court of Lowndes County for a breach of contract for the sale of real estate. The Williamses’ amended complaint alleged fraud, intentional and/or negligent misrepresentation by the Morrisons in the sale of their home to the Williamses. The Morrisons filed a motion for summary judgment as to all claims, which was granted by the chancellor on May 1, 2006. Aggrieved, the Williamses appeal asserting that the chancellor erred in granting summary judgment for the Morrisons. Finding no error, we affirm.

FACTS

¶ 2. On August 4, 2003, the Morrisons listed their home, located at 428 Bent Tree Trail, Columbus, Mississippi, for sale with an agent and provided the agent with a “Property Condition Disclosure Statement.” On October 17, 2003, the Williamses made an offer to purchase the home as a contract for sale, along with an addendum to the contract that gave the Williamses the right to have the home inspected within seven days of acceptance of the contract. The terms of the addendum gave the Williamses the option to render the contract null and void if the inspection results were not acceptable. Therefore, pursuant to the agreed upon addendum, the Williamses hired, James Taylor, of RBI Inspectors, to perform an inspection of the property. After the Williamses received Mr. Taylor’s inspection report, they requested the Morrisons repair or correct “some, but not all,” of the items included on Mr. Taylor’s report. On November 3, 2003, the Williamses signed a removal of contingencies, and a few weeks later they signed a declaration of acceptance, on November 24, 2003, at the time of the closing.

¶ 3. The Williamses filed their breach of contract suit against the Morrisons on September 29, 2004, to which the Morri-sons filed a motion for a more definite statement. On January 20, 2005, the Williamses filed an amended complaint that alleged a breach of contract by intentional or negligent misrepresentation of the condition of the premises, a breach of the disclosure statement, and a breach of the fiduciary obligations of good faith and fair dealing. Specifically, the Williamses claimed that subsequent to the purchase of the home, they became aware of numerous structural problems, alterations, and/or renovations/remodels, as well as prior concealed flood damage to the garage, and numerous other problems which they thought the Morrisons were under a duty to have disclosed.

¶ 4. Discovery ensued, and on January 25, 2006, the Morrisons filed a motion for summary judgment. A hearing was had on April 4, 2006, and on May 1, 2006, the court granted the Morrisons summary judgment and dismissed all claims against them brought by the Williamses. The Williamses properly filed their notice of appeal on June 28, 2006, after the court granted a motion to reopen the matter in order to file an appeal.

ISSUE AND ANALYSIS

I. Whether the court erred in granting summary judgment.

¶ 5. An appeal from summary judgment is reviewed de novo. Jacox v. Circus Circus Miss., Inc., 908 So.2d 181, 183(¶ 4) (Miss.Ct.App.2005) (citing Cossitt v. Alfa Ins. Corp., 726 So.2d 132, 136(¶ 19) (Miss.1998)). The standard by which we review the grant or denial of summary judgment is the same standard as is employed by the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. Jacox, 908 So.2d at 183(¶ 4) (citing Dailey v. Methodist Med. Ctr., 790 So.2d 903, 906-07(¶ 3) (Miss.Ct.App.2001)). Pursuant to Rule 56(c), summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” The evidence must be viewed in the light most favorable to the non-moving party. Jacox, 908 So.2d at 184(¶ 4) (citing Dailey, 790 So.2d at 907(¶ 3)).

¶ 6. The Williamses allege that the Morrisons’ disclosure statement did not contain the true and accurate conditions of the property. Specifically, the allegation is based upon “Section E. Land and Site Data,” in which the Morrisons indicated that they were not personally aware of any flooding and/or standing water issues with the property. Dr. Morrison’s deposition testimony revealed that, at one point in time, a garden drain had gotten blocked with mulch, which caused rain water to enter the garage area. Dr. Morrison stated that he had vacuumed the water up within twenty-four hours and there had been no apparent water damage or standing water to his recollection. However, because of the Williamses’ discovery, after purchasing the property, that there was “moisture damage and/or areas of old water penetration/seepage to the interior of the garage” they maintain that the Morrisons had personal knowledge of this fact and negligently and/or intentionally withheld this information. We disagree.

¶ 7. Additionally, the Williamses allege the Morrisons made misrepresentations of the property in “Section F. Additions/Remodels” of the disclosure statement. The Morrisons responded “yes” to the question and indicated they had remodeled the kitchen and added a family room and three-car garage. However, the Williamses assert that the Morrisons did not specifically reveal that they had installed “PVC piers” under the living area in an effort to correct a “vibration problem.” Subsequent to the Williamses’ purchase of the property, they had a professional engineer inspect the home and discovered the PVC piers, as well as possible future foundation issues with the home. However, the engineer’s report noted that the installation of the PYC piers was not an attempt “to correct or improve the home’s foundation.” Regardless, the Williamses maintain that the Morrisons had personal knowledge of the foundation problems and the water problems that they discovered subsequent to their purchase of the property. Therefore, they claim the Morrisons intentionally and/or negligently misrepresented the condition of the property, specifically, on the disclosure statement. Again, we disagree with the Williamses’ allegations.

¶ 8. After a thorough review of the record before us and the arguments presented, we find that the Williamses have offered no evidence that the Morrisons intentionally misrepresented the condition of their property. The facts presented do not lead us to believe that the Morri-sons had any personal knowledge of the conditions discovered by the Williamses subsequent to their purchase. Dr. Morrison’s deposition testimony was that he had no personal knowledge of the conditions complained of by the Williamses or that any such problems existed during the years he and his family occupied the home. Mrs. Morrison’s testimony supported Dr. Morrison’s, in that she also had no personal knowledge of the conditions complained of by the Williamses. Additionally, the Williamses hired their own licensed inspector, Mr. Taylor, prior to the closing of sale, and pursuant to his recommendations, the Williamses were apparently satisfied enough with the conditions of the property to follow through with the contract and purchase the property. Mississippi Code Annotated section 89-1-501 (Rev.2006) requires that the disclosure statement be made. Additionally, section 89-1-505(1) states that the tránsferor shall not be liable “if the error, inaccuracy or omission was not within the personal knowledge of the trans-feror or that listing or selling agent ...” and section 89-1-509 establishes the format and contents required in the disclosure statement. In pertinent part the statement says “TO THE SELLER: Please complete the following form, including any past history of problems, if known.” (emphasis added). Miss.Code Ann. §§ 89-1-505-509 (Rev.2006). Therefore, the seller is only under a duty to disclose information that he or she has personal knowledge of and cannot be held liable for defects or conditions that he or she was not personally aware of at the time of the sale. We find that the record does not present any set of facts that would support the Williamses’ allegations that the Morrisons were personally aware of the problems that arose subsequent to their purchase of the home and/or that the Morrisons attempted to misrepresent the condition of the property at the time of sale.

¶ 9. Furthermore, the Williamses had the property inspected by a licensed inspector of their choosing, and accepted and admittedly relied on his report to the extent that they chose to accept the contract and not exercise their right to render the contract void, as stated in the agreed upon addendum. In viewing the facts most favorably for the Morrisons, we find that the Williamses have not presented any genuine issue of material fact. The chancellor was not in error when he granted summary judgment to the Morrisons and dismissed all claims. This issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, BARNES, ROBERTS AND CARLTON, JJ., CONCUR. GRIFFIS, J., CONCURS IN RESULT ONLY. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Dr. Morrison passed away on February 11, 2007. Mrs. Morrison is a widow and the Estate of Dr. Morrison has been substituted as a party of record for the late Dr. Morrison.

      . The Williamses’ complaint indicates that on or about December 2, 2003 a termite inspector informed them there was some moisture damage in the garage area, and there would continue to be problems, in his opinion, due to the fact the garage was constructed into a hillside.

      . The disclosure statement provided by the Morrisons contained this language.


author: MYERS, P.J.,

text:
    Tracey HOLLIDAY, Appellant v. Christopher Thurman STOCKMAN, Appellee.
    No. 2006-CA-01493-COA.
    Court of Appeals of Mississippi.
    Nov. 13, 2007.

      Gay Goodwin, attorney for appellant.
    Christopher Thurman Stockman, appellant, pro se.
    Before MYERS, P.J., BARNES and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Tracey Holliday seeks review of the order of the Lowndes County Chancery Court denying her motion for supervised or restricted visitation. Holliday also challenges the chancellor’s determination of the amount due for child support. Holli-day argues the chancellor erred in crediting Christopher Thurman Stockman for the time the child lived with Stockman and crediting him for three past payments to the mother. Holliday argues that these credits are erroneous, reasoning that Stockman presented insufficient proof of past payments of child support. Additionally, Holliday challenges the chancellor’s grant of equitable relief since Stockman owed past due child support. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Tracey Holliday and Christopher Thurman Stockman are the parents of a minor child, C.M.S., who was conceived out of wedlock. On January 24, 2001, a final decree awarding custody of C.M.S. was entered granting custody to Holliday. The decree also ordered Stockman to pay child support totaling $249 per month, along with setting visitation for Stockman. On November 17, 2003, Holliday received a modified support order directing Stockman to pay an additional $105 per month for insurance, and ordered Stockman to pay half of daycare expenses and half of any extracurricular expenses. The decree further set medical arrears at $209.89, child support arrears at $747, and awarded Hol-liday $732 in court costs.

¶ 3. Holliday filed action on January 18, 2006, seeking to have Stockman held in contempt. Stockman answered the action and attached a stipulated agreement he signed with the Mississippi Department of Human Services (DHS) on March 14, 2006. A hearing was held on April 5, 2006, where Holliday asked the court to award her past due child support and insurance payments, to find Stockman in contempt of court and to either require supervised visitation for Stockman or require him to complete additional anger management courses.

¶ 4. At the hearing, Stockman admitted having a gun in his glove box on December 12, 2005, when he went to pick the child up for visitation. Stockman further admitted he was previously charged with second offense domestic assault on Holliday. The circuit court in that case withheld adjudication pending Stockman’s successful completion of anger management. Stockman completed a court-ordered anger management class on December 15, 2005. In the chancellor’s opinion, in the case sub judice she found Holliday failed to prove a need for Stockman to be restricted to supervised visitation. The chancellor further determined Stockman did not need to complete another anger management course, since he successfully completed a course on December 15, 2005. The chancellor further found from credible testimony that Holliday and the child moved into Stock-man’s home from September 2004 to June 2005. During that time, Holliday asked that the Department of Human Services close her case against Stockman for his child support obligations. Holliday did not reopen her case with DHS until September 19, 2005, when she moved out of Stock-man’s home. The chancellor also declined to find Stockman in contempt since he worked to resolve the child support issue with DHS and made a good faith lump sum payment of $1,246 in furtherance of the stipulated agreement between himself and DHS. The chancellor also ruled that Stockman had additionally contributed a total of $1,600 in child support payments to Holliday.

¶ 5. On July 31, 2006, the chancellor found the following, relevant to the current appeal: visitation exchanges were to occur at the Lowndes County Sheriffs Office, the Court’s prior visitation order was continued with Stockman receiving an additional three consecutive weeks, Stockman was not required to participate in additional anger management classes, Holliday was awarded $1,387 in past-due child support with interest, and Holliday was additionally awarded $2,625 with interest for unpaid medical insurance and $500 in attorneys’ fees. Holliday appeals the chancellor’s ruling with regard to the amount of arrearage of child support and the requested restrictions on visitation.

STANDARD OF REVIEW

¶ 6. Our scope of review in domestic relations matters is limited and as such this Court shall not disturb a chancellor’s findings unless the findings are deemed manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard. New v. Comola, 881 So.2d 369, 372(¶ 8) (Miss.Ct.App.2004) (citing Tynes v. Tynes, 860 So.2d 325, 327(¶ 5) (Miss.Ct. App.2003)). Further, a chancellor’s decision with regard to visitation is afforded great deference by this Court. Horn v. Horn, 909 So.2d 1151, 1163(¶ 38) (Miss.Ct. App.2005) (citing Mixon v. Mixon, 724 So.2d 956, 961(¶ 14) (Miss.Ct.App.1998)).

I. WHETHER THE CHANCELLOR ERRED IN DETERMINING THE AMOUNT OF ARREARAGE DUE TO HOLLIDAY

¶ 7. Holliday argues that she did not live with Stockman but maintained a separate home and as such, Stockman should not be given credit for the time she and the child stayed in his home. Courts have noted “the injustice of allowing the mother to continue to receive child support payments for a child who ... lived with the child’s father.” Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989) (citing Alexander v. Alexander, 494 So.2d 365 (Miss. 1986)). In the current case, the chancellor found both the mother and child lived with Stockman from September 2004 until June 2005. During this time, Stockman provided shelter for both mother and child, as well as basic necessities, which were contemplated by the child support order.

[A] father may receive credit for having paid child support where, in fact, he paid the support directly to or for the benefit of the child, where to hold otherwise would unjustly enrich the mother. Alexander v. Alexander, 494 So.2d 365 (Miss.1986). This principle applies, however, only where the father proves by a preponderance of the evidence that he has, in fact, paid the support to the child under circumstances where the support money was used for the child for the purposes contemplated by the support order, that is, to provide shelter, food, clothing, and other necessities for the child. Nichols v. Tedder, 547 So.2d 766, 769 (Miss.1989).

Crow v. Crow, 622 So.2d 1226, 1231 (Miss. 1993). Stockman presented evidence to the court consisting of corroborating testimony from his former roommate with regard to whether the child and Holliday resided there during the period in question. The chancellor found from credible evidence presented at trial that Holliday and the child did in fact live with Stock-man. Therefore, we find that the chancellor properly granted credit for the period in question.

¶ 8. The case at bar is similar in facts to Alexander v. Alexander 494 So.2d 365 (Miss.1986), cited by Holliday in support of her argument. In Alexander, the parents of the minor child modified the custody arrangement without filing a petition with the court. Id. at 367. The child began living with his father, the non-custodial parent, and the father provided support for the child. Id. The father in Alexander additionally continued to pay the court-ordered child support to the minor child. Id. The fact the father made the payments to the child was only one of many factors the court considered when making its determination. The court in Alexander noted, “[the father] had the child in his custody, was supporting the child, and furthermore, was paying the child the $200 a month child support.” Id. at 368.

¶ 9. In the case at bar, the chancellor found that Stockman provided for the child while he lived in his home. Additionally, the chancellor determined that Holliday voluntarily stopped seeking child support for the months she and the child lived with Stockman. Holliday herself admits she requested DHS to discontinue pursuing support for the child on her behalf. Stockman claimed Holliday closed the DHS case on the condition that Stockman instead help Holliday support the child while they lived together. The chancellor gave credit to him as a result of this arrangement, for the time all three parties lived in the same home. The chancellor made this ruling after considering evidence submitted by Stockman and by corroborating testimony of witnesses presented by Stockman. The chancellor heard extensive testimony from both Stockman and Holliday and also heard testimony from credible witnesses in order to make her determination. As such, this Court affords great deference for the findings of the chancellor which we uphold.

¶ 10. Holliday argues that “once child support payments become past due they become vested and cannot be modified.” Thurman v. Thurman, 559 So.2d 1014, 1016 (Miss.1990). In Thurman, the father was behind on three months of child support and admitted paying only part of the full amount due. The father asked for modification of child support because of a material change in circumstances. Id. The chancellor first reduced the amount of child support the father was required to pay each month. Id. The chancellor further lessened the amount in arrears, recognizing the new lesser support order as the only required amount to be paid. The supreme court found the chancellor’s reduction of past-due support to be manifestly erroneous. Id. The case before us differs from Thurman. In our case, the chancellor did not forgive the past-due amount of support owed to the child, but instead gave credit to Stockman for money already spent in fulfillment of his child support obligation.

¶ 11. Holliday asks this court to review whether the chancellor erred in granting Stockman credit for support paid and time the child lived in his home under a clear and convincing evidence standard. However, “this Court will not disturb a chancellor’s findings unless manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard.” New v. Comola, 881 So.2d 369, 372(¶ 8) (Miss. Ct.App.2004) (citing Tynes v. Tynes, 860 So.2d 325, 327(¶ 5) (Miss.Ct.App.2003)). As such, we cannot find that the chancellor was manifestly erroneous in crediting Stockman for payments already made to the child and for time the child lived in his home.

¶ 12. Here, Holliday further argues on appeal that Stockman should not be credited for the time the child lived with Stockman or for the payments she received from him because he had “unclean hands.” However, the chancellor found that Stockman’s actions did not rise to the level of unconscionable behavior, since he made a good-faith payment of $1,246 in furtherance of a stipulated agreement executed to settle the dispute with the DHS. Stockman also further admitted he had not paid the full amount of support due.

Courts apply the maxim requiring “clean hands” only where some unconscionable act of one coming for relief has immediate and necessary relation to the equity that he seeks in respect of the matter in litigation. They do not close their doors because of plaintiffs misconduct, whatever its character, that has no relation to anything involved in the suit, but only for such violations of conscience as in some measure affect the equitable relations between the parties in respect of something brought before the court for adjudication.

Pierce v. Heritage Props., 688 So.2d 1385, 1391 (Miss.1997) (citing Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245, 54 S.Ct. 146, 78 L.Ed. 293 (1933)). The chancellor did not err when she determined that Stockman had made a good-faith effort to settle the matter of past-due child support. Finding no error, we accordingly affirm the order of the chancery court.

II. WHETHER THE COURT ERRED IN NOT REQUIRING SUPERVISED VISITATION OR ANGER MANAGEMENT CLASSES

¶ 13. The 2003 Mississippi Laws chapter 475, section one amendment to Mississippi Code Annotated 93-5-24 added (9), which set standards for custody decisions where family violence is present. The relevant portion on which Holliday relies reads:

(d) (I) A court may award visitation by a parent who committed domestic or family violence only if the court finds that adequate provision for the safety of the child and the parent who is a victim of domestic or family violence can be made.
(ii) In a visitation order, a court may take any of the following actions:
1. Order an exchange of the child to occur in a protected setting;
2. Order visitation supervised in a manner to be determined by the court;
3. Order the perpetrator of domestic or family violence to attend and complete to the satisfaction of the court a program of intervention for perpetrators or other designated counseling as a condition of visitation;
4. Order the perpetrator of domestic or family violence to abstain from possession or consumption of alcohol or controlled substances during the visitation and for twenty-four (24) hours preceding the visitation;
5. Order the perpetrator of domestic or family violence to pay a fee to defray the cost of supervised visitation;
6. Prohibit overnight visitation;
7. Require a bond from the perpetrator of domestic or family violence for the return and safety of the child; or
8. Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of family or domestic violence, or other family or household member.
(iii) Whether or not visitation is allowed, the court may order the address of the child or the victim of family or domestic violence to be kept confidential.
(e) The court may refer but shall not order an adult who is a victim of family or domestic violence to attend counseling relating to the victim’s status or behavior as a victim, individually or with the perpetrator of domestic or family violence, as a condition of receiving custody of a child or as a condition of visitation.
(f) If a court allows a family or household member to supervise visitation, the court shall establish conditions to be followed during visitation.

Miss.Code Ann. § 93-5-24 (Rev.2004).

¶ 14. The chancellor noted in her opinion that both Stockman and Holliday knew, according to trial testimony, “how to push each other’s buttons.” The chancellor further opined that both parties were equally responsible for failing to control their anger and for failing to communicate in a productive manner. The language in the statute allows a chancellor discretion in determining appropriate precautions and we find the chancellor instituted sufficient protective measures. The chancellor put into place appropriate precautions requiring that visitation exchanges take place at the Lowndes County Sheriffs Department to prevent future outbursts. The chancellor also declined to order Stockman to complete an anger management class, citing his recent successful completion of an anger management course. Looking at the record before us, this Court cannot say that the chancellor abused her discretion in failing to restrict Stockman to supervised visitation with the child.

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

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


author: CHANDLER, J.,

text:
    Johnny W. LADD, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00429-COA.
    Court of Appeals of Mississippi.
    Nov. 20, 2007.

      Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On March 9, 2006, Johnny W. Ladd was convicted of the statutory rape of A.S., who was fifteen years old at the time of the incident. The court sentenced Ladd to twenty years in the custody of the Mississippi Department of Corrections, with five years to be suspended upon completion of fifteen years, and five years of post-conviction supervision. Aggrieved, Ladd appeals. He asserts that the trial court erred by doing the following:

I. Sustaining the State’s objection to Ladd’s testimony concerning the theft of his income tax refund by his ex-wife, Sandy Ladd
II. Denying Ladd’s motion requesting expert assistance
III. Sustaining the State’s objection to Ladd’s cross-exam of the State’s witness, Tracey Beasley, concerning A.S.’s statement that the victim had previously engaged in sexual intercourse, which was a contradiction of her testimony

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. The alleged victim, A.S., testified at trial that, on the night of November 1, 2003, she was staying at the home of her Aunt K.S. Besides A.S. and K.S., Johnny Ladd and his wife also stayed over that night, along with a number of children who were all under nine years old. According to K.S., only Ladd’s wife, Sandy, and their children were supposed to stay over. It was not until K.S. went to pick them up that Sandy asked if Ladd could stay over too. Nevertheless, everyone stayed over and went on a hayride that night. A.S. testified that, during the hayride, she heard Ladd ask K.S. who she was, and he told her aunt that A.S. had filled out.

¶4. Later on, after taking two Tylenol PM pills for a headache and then going to sleep, A.S. awoke upon experiencing a pain. She found Ladd on top of her and having sex with her. She said Ladd removed her pajama pants and underwear and put his penis in her vagina. A.S. had fallen asleep on the couch that night, and there were a number of other children also asleep in the living room. While Ladd was on top of her, A.S. said she was in shock and could not do anything. She said she was afraid that she would wake up the other children if she screamed. After Ladd finished, she said that he put her clothes back on and went outside.

¶ 5. According to the testimony of A.S. and her aunt, A.S. came in crying and woke up her aunt because she wanted to see her grandmother and go to the hospital. KS. took her to Neshoba General Hospital, where they examined A.S. using a sexual assault evidence kit. After her mother came to get her, she took A.S. to see another doctor at the Alliance Laird Hospital. Later in the morning, after Ladd had gone back to bed with his wife, Officer Vince Carter of the Neshoba County Sheriffs Department showed up at K.S.’s house and arrested him. Ladd was later taken to the hospital, where he was also examined, and evidence was collected from him for a sexual assault evidence kit.

¶ 6. In addition to A.S. and her aunt, the prosecution put on the doctors and nurses who examined A.S. after the incident and the analysts who tested the semen and blood collected in the sexual assault evidence kit. The doctors and nurses testified to the injuries sustained by A.S., the presence of semen, and the methods used to collect semen and blood samples from Ladd and the victim. The analysts confirmed that Ladd’s DNA from a blood sample matched the semen taken from the victim. They all testified that proper procedures were followed and that there was no contamination of the evidence.

¶ 7. When he took the stand, Ladd denied that he had sex with A.S. He also claimed that his comment regarding A.S. was that she had grown up, and he denied that it had any sexual connotation to it. He claimed that the person he had sex with that night was A.S.’s Aunt K.S., who then had access to the condom with his semen in it. He said that K.S. had invited him over so that they could have sex and that they had previously had sex a year before.

¶ 8. An indictment on September 1, 2005, charged that Ladd, being over twenty-one, had sexual intercourse with A.S., who was under sixteen at the time. After a one-day trial, the jury convicted Ladd of statutory rape.

ISSUES AND ANALYSIS

I. Testimony that Ladd’s ex-wife stole his tax returns

¶ 9. Ladd’s first point of error is that the trial court erred in sustaining the State’s objection to his testimony that his ex-wife, Sandy, stole his tax returns. He argues that this act shows that there was a strained relationship between him and his ex-wife and that K.S. had a desire to help Sandy in a possible divorce action.

¶ 10. The admission of evidence is within the discretion of the trial court. Culp v. State, 933 So.2d 264, 274(¶ 26) (Miss.2005). We will only reverse a decision on whether to admit evidence if the trial court abused its discretion. Id.

¶ 11. Ladd’s argument is completely irrelevant to the charge at hand. Whether Ladd’s ex-wife stole his tax returns had nothing to do with the statutory rape charge, nor did it connect her to K.S. in any way, as Ladd suggests. His claim that this was evidence that tended to show KS.’s desire to help Sandy in a divorce action is also misguided because it was Ladd who later filed for divorce from Sandy.

¶ 12. We do not find that the judge erred in sustaining the objection to this testimony because it was irrelevant. It was well within the judge’s discretion to do so. This issue is without merit.

II. Expert assistance

¶ 13. Ladd’s next argument is that he was entitled to the appointment of an expert witness to help him prepare a defense to the DNA evidence presented by the State. He claims that, because the trial court found him indigent and appointed a public defender for him, he was also entitled to appointment of such an expert. Ladd further argues that the court erred by denying his request for expert assistance and basing its ruling largely on the fact that he did not offer any evidence of his indigence. He believes the court should have found he was indigent from the fact that it had appointed an attorney to represent him.

¶ 14. The trial court has broad discretion in deciding whether or not to appoint or provide funds for an expert. Weatherspoon v. State, 732 So.2d 158, 161(¶ 9) (Miss.1999). The denial of expert assistance is reviewed on a case-by-case basis, and we will only reverse if the appellant can show that the trial court’s abuse of discretion was “so egregious as to deny him due process and where his trial was thereby rendered fundamentally unfair.” Id. at 160(¶ 6) (quoting Johnson v. State, 529 So.2d 577, 589-90 (Miss.1988)).

¶ 15. The supreme court has applied the factors set forth in Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), to determine whether a criminal defendant was entitled to be provided expert assistance to examine DNA evidence:

The first is the private interest that will be affected by the action of the State. The second is the governmental interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.

Coleman v. State, 697 So.2d 777, 782 (Miss. 1997) (quoting Ake, 470 U.S. at 77, 105 S.Ct. 1087). The defendant must also make a showing that expert assistance would significantly aid the defense. Id.

¶ 16. The supreme court has also enumerated other factors to consider when a defendant is denied expert assistance:

In determining whether a defendant was denied a fair trial because of failure to appoint or allow funds for an expert, we consider whether and to what degree the defendant had access to the State’s experts, whether the defendant had the opportunity to cross-examine those experts, and lack of prejudice or incompetence of the State’s experts.

Hughes v. State, 892 So.2d 203, 209(¶ 8) (Miss.2004). We will also consider the extent to which the State’s case depends on the expert. Id.

¶ 17. In the present case, Ladd’s counsel stated at the pretrial hearing that he could not argue he did not have access to the experts, nor could he claim an inability to cross-examine them. The State’s experts were not sought out by the State solely to testify against Ladd. The experts who testified were the individuals who examined A.S. at the hospital and who performed the DNA and blood analysis. Their risk of prejudice or incompetence is, therefore, low. Furthermore, Ladd did not want the court to appoint an expert that he might call at trial. He only wanted an expert to assist in the preparation of a defense. Trial counsel’s argument was that he would be unable to question the State’s experts without the opportunity to consult with an expert who had reviewed the records. This argument, however, is in contrast to counsel’s assertion that he had been involved in a “good number” of sex crime cases.

¶ 18. In the same pretrial hearing, Ladd’s counsel could not point to anything that he might discover with the aid of an expert that he could not question the State’s experts about himself. Ladd was certainly welcome to cross-examine the experts on any matters he wished, including any “mathematical error,” which is referred to in appellant’s brief. However, any mention of any such error is absent from the trial transcript. Even without consulting an appointed expert, he managed to question the experts about a mi-crobacterial growth, which was one of the issues he brought up at the pretrial hearing. However, he did not argue that it contaminated the sample. His argument, which the expert conceded, was that it could indicate prior sexual activity by A.S.

¶ 19. As for the value of the expert to Ladd, while he stated at trial that he did not have sex with the victim, at no point does he argue that the sperm collected from the victim did not belong to him. Instead, Ladd’s argument at trial seemed to be the same one he now makes on appeal. He claims that K.S. collected his semen in a condom after they had sex and planted it in A.S.’s vagina. His defense was not that it was not his semen, but that K.S. put it there to help Sandy get a divorce. At trial, he did support this defense when his cross-examination of the experts revealed that they could not and did not test whether the semen had been planted after being removed from a condom. An expert witness would not have helped Ladd in preparing this defense, and, as stated previously, he did not even want an expert to testify at trial. His only reason for requesting an expert was so that he could properly cross-examine the witnesses put on by the State.

¶ 20. Based on the defense that Ladd presented at trial, and his argument on appeal, we do not find that the trial judge abused his discretion by not appointing an expert for Ladd. He did not show that an expert would have significantly aided his defense. This issue is without merit.

III. The victim’s prior sexual activity

¶ 21. Ladd’s final point of error is that the court erred in sustaining the State’s objection to his questioning of the nurse, Tracy Beasley, concerning the victim’s sexual history. Ladd claims that A.S. told Ms. Beasley that she had previously had sex. When cross-examined by Ladd about her sexual history, however, A.S. said that she had never had sex. Ladd argues two points in support of this issue: that a prior inconsistent statement may be used for impeachment, and that an accused may impeach a hearsay declarant.

¶ 22. Ladd is correct in his assertion that Rule 613 of the Mississippi Rules of Evidence allows impeachment of a witness by use of a prior statement. However, his reliance on Nalls v. State, 651 So.2d 1074, 1076 (Miss.1995), and his argument that he may impeach a hearsay declarant is irrelevant. In Nalls, the supreme court pointed out that it was permissible to attack the credibility of a hearsay declarant when a hearsay statement had been admitted into evidence. Id. However, Nalls has nothing to do with Ladd’s attempt to put into evidence a hearsay statement to impeach the credibility of a witness who took the stand.

¶ 23. First, Ladd did not lay the proper predicate to introduce any prior inconsistent statement by the victim. Al-Fatah v. State, 916 So.2d 584, 591(¶21) (Miss.Ct. App.2005). “The attorney must set the scene for the victim, asking whether on a particular day, in the presence of particular witnesses, the victim made a particular statement.” Id. (citing Bush v. State, 667 So.2d 26, 28 (Miss.1996)). In his cross-examination of A.S., Ladd only asked her if she had ever had sex before the night of the alleged rape. He never questioned her about any statements made to the nurse. Instead he sought to cross-examine Ms. Beasley about what A.S. told her.

¶24. More importantly, Ladd fails to address Rule 412 of the Mississippi Rules of Evidence, which was the basis for disallowing the testimony about A.S.’s sexual history. Rule 412 provides that past sexual behavior of an alleged victim of a sexual offense is not admissible unless it is (1) evidence of past sexual behavior with others to show that someone else was the source of semen, pregnancy, disease, or injury; (2) past sexual behavior with the defendant to show consent; or (3) false allegations of past sexual offenses made by the victim. Those exceptions, however, are not applicable to this statutory rape charge because Ladd did not offer the testimony to rebut the source of the semen or to establish consent, and there was no mention of past false allegations.

¶ 25. Besides being irrelevant to the charge at hand, there is also nothing in the record indicating that Ladd complied with the requirements of Rule 412(c)(1). Under Rule 412(c)(1), a- party intending to offer evidence of a victim’s past sexual behavior must submit a written motion to offer that evidence no later than fifteen days before trial. We have previously ruled that it was proper to disallow impeachment of a victim of a sexual offense when the defendant failed to follow such procedures. Aguilar v. State, 955 So.2d 386, 393(¶22) (Miss.Ct. App.2006).

¶ 26. The supreme court has stated that whether an alleged rape victim was a virgin is irrelevant to whether she was raped. Heflin v. State, 643 So.2d 512, 518 (Miss. 1994) (overruled on other grounds) (citing Goodson v. State, 566 So.2d 1142, 1148 (Miss.1990)). We also note once more that admission of evidence is within the discretion of the trial judge. Culp, 933 So.2d at 274(¶ 26). In this case, the judge determined that Ladd was attempting to bring in the statement concerning AS.’s sexual history for more than the purpose of impeachment.

¶27. Even though the judge did not allow the statement, Ladd, nevertheless, questioned the doctors on matters that allowed the jury to question AS.’s chastity and credibility. He cross-examined both doctors about the presence of the victim’s hymen and about whether there was bacteria present in the victim’s vagina that could have come from prior sexual encounters. Therefore, even without specific testimony concerning her sexual history, the jury had the opportunity to judge A.S.’s credibility on that topic from each of these lines of questioning.

¶ 28. He also brought up other inconsistent testimony and managed to impeach her as to whether she originally told police that she tried to push Ladd off of her. In her testimony, A.S. said that she could not do anything because she was in shock. On cross-examination, however, she admitted she told Officer Carter that she tried to push Ladd off of her, and she said she did not remember whether she told Carter that she had told Ladd to stop. He also put on his ten-year-old daughter who said that the television in the living room where the alleged incident occurred had been turned down. This was contrary to A.S.’s testimony that the television volume remained turned up throughout the night.

¶ 29. We find that the judge was within his discretion when he refused to admit evidence of the victim’s prior sexual activity. This issue is without merit.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF NESHOBA COUNTY OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS TO BE SUSPENDED UPON COMPLETION OF FIFTEEN YEARS, AND FIVE YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.

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

      . We will use initials for the victim and her family members to protect their identities.