author: BARNES, J.,

text:
    Dwayne NORMAN, Appellant v. Kimberly NORMAN, Appellee.
    No. 2005-CA-00882-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2007.

      Samuel E. Farris, Jonathan Michael Farris, attorneys for appellant.
    E. Lindsay Carter, Hattiesburg, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

BARNES, J.,

for the Court.

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted in lieu thereof. Dwayne Norman sued Kimberly Norman for divorce and custody of their only child, daughter Blaze Maria Norman. Kimberly counterclaimed also seeking a divorce and custody of their daughter. The Normans agreed to a divorce on grounds of irreconcilable differences, but could not agree on the issue of primary physical custody of their minor child. The issue was litigated, and the chancellor awarded physical custody of the child to Kimberly. Aggrieved, Dwayne perfected this appeal. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Dwayne and Kimberly Norman were married on April 23, 1994. One child was born to the marriage, Blaze Maria, who at the time of trial on this matter was seven years old. During the marriage both Dwayne and Kimberly were gainfully employed and by all accounts were good and loving parents. Dwayne and Kimberly separated in September 2004, and on September 22, 2004, Dwayne filed a complaint of divorce in the Chancery Court of Lamar County on the grounds of habitual drunkenness, habitual cruel and inhuman treatment and, in the alternative, irreconcilable differences. Dwayne also filed for a protective order for temporary relief and custody of Blaze Maria. On October 11, 2004, Kimberly filed her answer, counterclaimed for divorce, and requested temporary relief and custody of Blaze Maria. The parties also agreed upon a temporary order and proposed a trial date of March 3, 2005.

¶ 3. A temporary order was entered on November 4, 2004, which provided for joint legal custody of their minor child, with Kimberly having temporary physical custody of the child subject to the liberal visitation rights of Dwayne. On March 3, 2005, the court granted the parties’ joint motion for divorce on the grounds of irreconcilable differences, and a trial was held on the issues of child custody, visitation, and child support. After hearing testimony from witnesses on both sides and a court-appointed expert, Dr. John Patrick Galloway, the chancellor, ruling from the bench, awarded primary physical custody to Kimberly. The chancellor awarded Dwayne liberal visitation and ordered him to pay monthly child support in the amount of $285. A final judgment of divorce was entered on April 18, 2005, which incorporated the March 3, 2005 bench ruling. Dwayne appealed this final judgment and argued that the chancellor erred in awarding physical custody of Blaze Maria to Kimberly by failing to properly apply the Albright factors. On October 10, 2006, in a five-to-five vote, this Court affirmed the chancellor’s final judgment, with four judges joining Judge Southwick’s dissent. The dissent pointed out that a chancellor’s decision is reversible error if the rationale for each Albright factor is not specifically articulated. See Norman v. Norman, No.2005-CA-00882-COA (Miss.Ct.App. Oct. 10, 2006). Dwayne filed a motion for rehearing, arguing reversible error for lack of articulation on each Albright factor. This Court remanded the case in order for the chancellor to articulate his findings for each Albright factor. Dwayne filed a supplemental brief, appealing the final judgment and the chancellor’s supplemental findings. After reviewing the chancellor’s supplemental findings, we find no error and affirm the chancellor’s final judgment in favor of Kimberly.

STANDARD OF REVIEW

¶ 4. The standard of review in child custody cases is well-established. These matters fall within the sound discretion of the chancellor. Sturgis v. Sturgis, 792 So.2d 1020, 1023(¶12) (Miss.Ct.App.2001). Therefore, when this Court reviews an award of child custody, the decision of the chancellor will be affirmed unless the decision is manifestly wrong, clearly erroneous, or the chancellor applied an erroneous legal standard. Roberson v. Roberson, 814 So.2d 183, 184(¶ 3) (Miss.Ct.App.2002). The chancellor’s decision must be supported by substantial evidence in the record. Id.

LEGAL ANALYSIS

¶ 5. The sole issue on appeal is whether the chancellor erred in failing to properly apply the Albright factors when the chancellor awarded physical custody of Blaze Maria to Kimberly. Dwayne contends that the chancellor abused his discretion and committed reversible error in his ultimate finding in favor of Kimberly. We find the decision of the chancellor was without error.

¶ 6. In child custody cases, the overriding consideration is the best interest of the child. Rushing v. Rushing, 724 So.2d 911, 916(¶ 24) (Miss.1998). The court evaluates the best interest of the child by an analysis of the factors set out in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983); Alderson v. Alderson, 810 So.2d 627, 629(¶ 5) (Miss.Ct.App.2002). It is reversible error if the chancellor does not articulate the reasoning behind the finding for each Albright factor. Davidson v. Coit, 899 So.2d 904, 911(¶ 18) (Miss.Ct.App.2005) (citing Powell v. Ayars, 792 So.2d 240, 249(¶ 33) (Miss.2001)). In his supplemental findings of fact and conclusions of law, the chancellor fully articulates his rationale for each factor.

¶ 7. The record establishes that the chancellor acted in the best interest of the child in awarding custody of Blaze Maria to Kimberly. In his supplemental findings of fact, the chancellor found the following Albright factors to favor Kimberly: parenting skills, capacity to provide primary child care, the stability of the home environment, and continuity of care prior to separation. The chancellor found the following Albright factors to be neutral: age, health, and sex of the child; the employment of the parents; the physical and mental health of the parents; the emotional ties of parent and child; the moral fitness of the parents; and the home, school, and community records of the child. The chancellor found no Albright factor solely favored Dwayne. The preference of Blaze Maria as to whom should have physical custody was not considered because at the time of trial she was seven years old, an age insufficient by law to express a preference.

¶ 8. In his supplemental brief, Dwayne argues that the chancellor abused his discretion and committed reversible error in most of the Albright factors. He contends that all of the factors which were found neutral should have favored him except the age, health, and sex of the child and the moral fitness of the parents. Further, he argues the factors which favored Kimberly should favor him, except for the stability of the home environment, which should be found neutral.

¶ 9. We have thoroughly reviewed the record in light of the supplemental findings of fact by the chancellor. The chancellor properly relied on the testimony of the parties, testimony of family and friends — in equal number and on behalf of each side — and an independent court-appointed expert in family matters. The chancellor ultimately determined that both Dwayne and Kimberly were good parents deserving of custody. However, forced to make a decision as to the grant of physical custody, the chancellor held that the Al-bright factors favored Kimberly over Dwayne, specifically — continuity of care prior to separation, parenting skills and willingness and capacity to provide primary care, and stability of the home environment.

¶ 10. In light of our standard of review in child custody cases, we must give deference to the chancellor’s determination regarding the weight and credibility of the evidence. Alderson, 810 So.2d at 629(¶ 4). As an appellate court, we may not substitute our judgment for the chancellor’s but must determine if the chancellor’s ruling is supported by substantial evidence. Brewer v. Brewer, 919 So.2d 135, 141(¶ 23) (Miss.Ct.App.2005). “So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor’s decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor.” Id. (citing Bower v. Bower, 758 So.2d 405, 412(¶33) (Miss.2000)).

¶ 11. In our case, we find the chancellor’s findings were supported by credible evidence from the record. In his supplemental findings, the chancellor considered the Albright factors, and properly articulated his rationale for each when stating his findings of fact and conclusions of law in awarding custody to Kimberly. There was substantial evidence to support the chancellor’s ruling, thus this Court finds no error with awarding primary physical custody of Blaze Maria to Kimberly. Dwayne’s issue is without merit. Accordingly, we affirm the chancellor’s judgment.

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

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


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    James H. GUYTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01111-COA.
    Court of Appeals of Mississippi.
    Aug. 14, 2007.
    William C. Bristow, Tupelo, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   IRVING, J.,

for the Court.

¶ 1. James H. Guyton was convicted by the Lee County Circuit Court of one count of burglary and two counts of armed robbery. He was sentenced to serve twenty years on the burglary count and twenty-five years on each of the armed robbery counts in the custody of the Mississippi Department of Corrections, with the sentences to run consecutively. Aggrieved, Guyton appeals his conviction and argues: (1) that the trial court erred in denying his motions for a directed verdict, (2) that the trial court erred in denying his motion for a judgment notwithstanding the verdict, and (3) that the trial court erred in denying his motion for a mistrial.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On the morning of March 3, 2005, Brandi Johnson was in her South Park Manor apartment located in Tupelo, Mississippi. She, her eight-year-old son, Aly-jiawon Johnson; her boyfriend, Parish Neely; and Neely’s three-year-old niece were preparing to go out when two armed men entered her bedroom demanding money.

¶ 4. Neely recognized one of the robbers as McGaughy, who subsequently implicated Guyton as the second robber. Guyton and McGaughy were jointly indicted for the robbery. At Guyton’s trial, seven witnesses testified for the State: Brandi, Aly-jiawon, Neely, Renetha Gardner, Detective Randy Tutor, Detective Rick Rogers, and McGaughy. In order to give clarity to our analysis and holding, we will summarize each witness’s testimony.

¶ 5. Brandi testified that she was in her bedroom when the men entered the room and one of them forced her and Neely’s niece, at gunpoint, to go into the living room and to lie face down on the floor. Brandi described this gunman as a “bright skinned” African American about six foot two inches tall. She stated that he wore a hood and a black T-shirt, and that he carried a black revolver. Brandi also testified that during this time the second gunman, whom she described as an African American male about five feet seven inches tall with a “caramel complexion,” escorted Neely around the apartment searching for items to steal. She stated that the second gunman wore a blue shirt and a blue stocking cap over his face and that he carried a silver revolver. After the second gunman had taken what he wanted from the apartment, he forced Neely to lie on the floor. Both gunmen then escorted Brandi and Neely’s niece back to the bedroom and instructed them to lie on the bed and not to move. Additionally, one of the gunmen threatened to kill them if they disobeyed his order.

¶ 6. Alyjiawon testified that he was in his room listening to his compact disc player when the gunmen entered the apartment. Like his mother, Alyjiawon testified that one of the men wore a stocking cap over his head and the other wore a hood. Although he could not identify the gunman who wore the stocking cap over his face, Alyjiawon stated that it was that gunman who took his mother’s cellular telephone. Alyjiawon also stated that this same gunman told him to “shut the ‘F’ up.”

¶ 7. Neely testified that as he approached Johnson’s apartment, six men were hanging around the steps near the apartment, and as he entered the door to Brandi’s apartment, two men stepped in and told him to “drop it off.” Neely’s description of the gunmen was similar to Brandi and Alyjiawon’s, but he also stated that the taller gunman had a gap between his teeth. Neely stated that he was able to identify this gunman as McGaughy because McGaughy had been a frequent visitor at Neely’s home. Nevertheless, out of fear for his safety and for the safety of the others in the apartment, Neely did not let on that he knew who McGaughy was. Neely testified that McGaughy led him around the apartment at gunpoint, and that McGaughy took his cellular telephone and two hundred and fifty dollars.

¶ 8. Further, Neely stated that after the gunmen left the apartment, he, Brandi, Alyjiawon, and his niece left the apartment and went to Brandi’s mother’s house, which was about five minutes away, to call the police. Neely gave the police a description of the gunmen and the guns used in the robbery. Neely also testified that he spoke with McGaughy after Neely had given his statement to police and that McGaughy admitted that he and another gunman, whom McGaughy mentioned by name, committed the robbery.

¶ 9. On cross-examination, Neely testified that he knew on the day of the robbery that Guyton was the other gunman because he had seen him before. Neely further testified that he only knew Guy-ton’s first name and that he later learned Guyton’s last name from Brandi who had attended school with Guyton. Neely also stated that Guyton was one of the men sitting on the steps as he approached the apartment. However, Neely admitted that he did not include in his statement to police that the gunman wearing the blue stocking cap over his face was Guyton. On redirect, Neely stated that during his conversation with McGaughy, McGaughy revealed to him that Guyton was the second gunman. Neely also testified that McGaughy told him Guyton forced him to commit the robbery by putting a gun to his head.

¶ 10. Tutor, a detective with the Tupelo Police Department, acted as the lead investigator. He testified that he concluded that McGaughy was one of the gunmen based on his prior dealings with McGau-ghy and the descriptions given by Brandi, Neely, and Alyjiawon. Tutor presented a photo lineup to Brandi, Neely, and Alyjia-won. Alyjiawon identified McGaughy'as the gunman who wore the hood during the robbery. Tutor took statements from the victims and verified that two cellular telephones and two hundred and fifty dollars were stolen during the robbery. The officers wanted to apprehend McGaughy as quickly as possible, so a description of the crime along with McGaughy’s picture was featured on the local Crime Stoppers program which aired on the night of the robbery.

¶ 11. Following the Crime Stoppers special, the officers received information that McGaughy and Guyton were staying at a Hampton Inn. The officers went to the Hampton Inn with an arrest warrant for McGaughy. When the officers entered McGaughy’s room, they noticed two cellular telephones, matching the description given by Brandi and Neely, in plain view. The officers arrested McGaughy and took him into custody. Shortly thereafter, McGaughy gave a statement to police which led to Guyton’s arrest.

¶ 12. On cross-examination, Tutor testified that no lineup was conducted of Guy-ton and that McGaughy was the only person who positively identified Guyton as the second gunman. He also testified that the pistols used in the crime had not been located. Tutor further testified that McGaughy failed to appear in court for a previous court date in this case and that as a result a warrant was issued for his arrest.

¶ 13. At the Hampton Inn, the officers learned that Gardner, an employee of the Hampton Inn and Guyton’s girlfriend at the time, had rented two rooms in her name the night before for two individuals, one of whom was McGaughy. Thereafter, the officers obtained Gardner’s consent to search her apartment. The search revealed a blue stocking cap, which all three victims identified as the stocking cap worn by the second gunman. Rogers, one of the officers who conducted the search, stated that upon opening the door to Gardner’s apartment they noticed the stocking cap and a long-sleeve blue T-shirt lying in plain view on the couch.

¶ 14. Gardner testified that McGaughy and Guyton were in her apartment when she returned home from working at the Hampton Inn. Gardner stated that she noticed a light blue stocking cap and a blue shirt which belonged to Guyton lying on her couch. Gardner also stated that there was a bag containing McGaughy’s clothing in her living room. Gardner further testified that Guyton is a light-complected African American male about five feet seven inches tall and that Guyton is the only person meeting this description that had a key to her apartment.

¶ 15. On cross-examination, Gardner stated that on the day of the robbery, McGaughy and Guyton asked her to drive them to a dumpster at the South Park Manor apartment complex. She stated that Guyton then retrieved a bag containing the clothing which he brought back to her apartment. The threesome then went to the Hampton Inn, and she rented McGaughy and Guyton two rooms. Gardner stated that she did not stay overnight at the hotel but that Guyton was still at the hotel when she returned the following morning.

¶ 16. McGaughy testified that at the time the crime occurred he lived at the South Park Manor apartment complex with a friend. He stated that he and Fleming Gray were among the men hanging around outside at the apartment complex. According to McGaughy, when Neely walked by Gray commented that Neely probably had some money. McGaughy testified that he and Guyton discussed breaking into the apartment to steal Neely’s money and valuables. McGaughy stated that Guyton provided the guns used in the robbery and that McGaughy used a silver handgun with a black handle to commit the crime.

¶ 17. McGaughy stated that the door to Brandi’s apartment had been left slightly open. He then knocked on the door and pushed it open when no one answered. McGaughy testified that he wore a gray hood over his head during the robbery and that Guyton wore a blue stocking cap. McGaughy stated that, after they forced their way into the apartment, Guyton ordered Neely to drop his money and ordered McGaughy to take the others to the front of the apartment. According to McGaughy, Guyton then escorted Neely around the apartment at gunpoint. McGaughy testified that Guyton also stole a pair of Brandi’s tennis shoes and her identification card before bringing Neely back to the front of the apartment.

¶ 18. McGaughy testified that he and Guyton left the apartment on foot and ran to a nearby store. McGaughy also testified that Gray and Gray’s girlfriend were waiting in Gardner’s car and that McGau-ghy and Guyton were taken to Gardner’s apartment. At some point thereafter, McGaughy learned that the police had been looking for him in connection with a burglary and robbery that had taken place earlier that day. As a result, his clothes had been put in a dumpster at the South Park Manor apartment complex. When Gardner got home from work, she took McGaughy and Guyton to the South Park Manor Apartments so McGaughy could retrieve his clothing.

¶ 19. A little while later, Gardner dropped McGaughy and Guyton off at the Hampton Inn. McGaughy stated that Guy-ton left the Hampton Inn shortly before the police arrived the following morning. McGaughy admitted that he was involved in the crime; however, he initially told the officers that his accomplice was a man by the name of Leon. McGaughy testified that he did not mention Guyton when he first spoke with the officers because he was afraid to implicate Guyton. However, McGaughy subsequently identified Guyton as his accomplice in his written statement and did not mention any person named Leon. He also stated that he did not mention Gray’s involvement to the police because Gray was not involved in the actual crime. McGaughy gave the same reason for failing to mention that Gray and Gray’s girlfriend were in the getaway car when McGaughy and Guyton arrived at the store. On cross-examination, McGaughy acknowledged for the first time that another unidentified female drove Gardner’s car from the store.

¶ 20. As for the stolen property, McGaughy testified that Gray and Guyton kept most of the money and gave him forty dollars and the stolen cellular telephones. McGaughy also said that Guyton initially told him that he could keep the smaller handgun, but then Guyton took the gun back and told him that he was going to bury it. McGaughy pleaded guilty on the morning of Guyton’s trial.

¶21. Guyton refused , to give a statement to police and did not testify.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Directed Verdict

¶ 22. Guyton complains that the trial court erred in failing to grant his motion for a directed verdict at the close of the State’s case-in-chief and at the close of his case-in-chief.

“In considering a motion for directed verdict, the reviewing court must consider evidence introduced in [a] light most favorable to [the] State, accepting all evidence introduced by the State as true, together with all reasonable inferences therefrom; if there is sufficient evidence to support a guilty verdict, [the] motion for directed verdict must be overruled.”

McKee v. State, 791 So.2d 804, 808(¶ 14) (Miss.2001) (citing Edwards v. State, 615 So.2d 590, 594 (Miss.1993)).

¶ 23. After reviewing the record in this case, we find that the evidence was sufficient to sustain Guyton’s burglary and armed robbery convictions. Burglary is defined as the breaking and entering of the dwelling house of another with the intent to commit a crime therein. Miss. Code Ann. § 97-17-23 (Rev.2006). The evidence is clear that Guyton unlawfully entered Brandi’s apartment with the intent to rob Neely. Mississippi Code Annotated section 97-3-79 (Rev.2006) provides in part:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery....

¶ 24. Although the victims could not positively identify Guyton as the second gunman, they were able to provide the police with a description of the perpetrator, the stocking cap used by the perpetrator to disguise his identity, the type of clothing worn by the perpetrator, and the type of gun used in the crime. Additionally, the blue stocking cap and blue shirt matching the description given by the victims were found in Gardner’s apartment, Guyton’s girlfriend at the time of the crime. The evidence, including Gardner’s testimony that McGaughy and Guyton were at her apartment when she returned from work on the day of the crime and Gardner’s assertion that no one else matching Guyton’s description had a key to her apartment, clearly indicates that a reasonable jury could have found Guyton guilty beyond a reasonable doubt.

2. Judgment Notwithstanding the Verdict

¶25. “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Gibson v. State, 731 So.2d 1087, 1092(¶ 11) (Miss.1998) (quoting Pleasant v. State, 701 So.2d 799, 802(¶ 12) (Miss.1997)).

¶ 26. Allowing the jury verdict to stand would not sanction an unconscionable injustice. Guyton contends that “McGaughy’s testimony is incredible and should not be believed.” Despite the fact that McGaughy was hesitant to initially name Guyton as his accomplice, the jury apparently still found his testimony credible. Guyton argues that McGaughy’s testimony was not credible because he pleaded guilty “with hopes of leniency in exchange for providing incredible testimony against [Guyton].” It is well established that “[i]t is ... within the province of the jury to determine the credibility of witnesses.... ” Pleasant, 701 So.2d at 802(¶ 13) (citing Groseclose v. State, 440 So.2d 297, 300-01 (Miss.1983)). Moreover, the Mississippi Supreme Court has held that “the jury may believe or disbelieve, accept or reject the utterances of any witness.” Banks v. State, 782 So.2d 1237, 1243(¶ 26) (Miss.2001).

¶ 27. Guyton also argues that McGau-ghy was the only witness who implicated him in the crime. However, Neely also identified Guyton as the second gunman. Even though the defense pointed out that Neely did not mention in his statement to police following the crime that Guyton was the second gunman, the jury apparently still found him credible.

¶ 28. Finally, Guyton contends that the only physical evidence against him is the blue stocking cap and T-shirt found in Gardner’s apartment. Specifically, Guyton claims that “there has been no proof that [he] wore those items of clothing in any crime.” This statement is not entirely true. As previously stated, the stocking cap and T-shirt were found in Gardner’s apartment, and the victims stated that the second gunman wore items identical to them during the crime. Therefore, it is logical to conclude that the items found in Gardner’s apartment shortly after the crime belonged to Guyton, who had a key to her apartment. We cannot agree with Guyton that because McGaughy admitted to owning the bag of clothing found in Gardner’s apartment, any other clothing found in Gardner’s apartment which did not belong to Gardner must also belong to McGaughy. Considering all of the evidence, we find that allowing the verdict to stand would not “sanction an unconscionable injustice.”

3. Denial of Motion for Mistrial

¶ 29. Guyton argues that the trial court committed reversible error in denying his motion for a mistrial. Guyton objected and moved for a mistrial immediately after McGaughy testified that he initially told the officers that a man named Leon was his accomplice in the crime. Guyton argues that the State violated the rules of discovery by failing to inform him of this information and of the fact that Gray, Gray’s girlfriend, and another unidentified female were in the getaway car. The State responded by saying that the file did not contain any information regarding an oral identification of Leon given to police by McGau-ghy, nor did it contain any information indicating that other people were in the getaway car. The State also noted that this information did not come out in any pretrial interview. Guyton’s attorney argued that the information was exculpatory and should have been available to the defense. The trial judge responded:

Assuming that it is in fact exculpatory, it certainly should have been produced. The witness has indicated that he was making up a story, and that never got very far. He named a name Leon that he in his sworn testimony says there was no such person, that it was the defendant at all times. And while I suppose ideally the defendant should have even this kind of information, it does not rise to the occasion in giving the defendant [Guyton] an out or cause for a mistrial in this case.
If you pursued this thing, he would tell you on every occasion that Leon was fictitious period. As to the credibility of it, I think the jury can determine what weight and worth conflicting statements, which are I think well before the jury, but as far as this leading to anything, I fail to see where that would be of any significance at all.

¶ 30. In Brent v. State, 632 So.2d 936, 941 (Miss.1994), the Mississippi Supreme Court held that “the decision to declare a mistrial is within the sound discretion of the trial judge.” We find no error in the trial judge’s decision; thus, this issue is without merit.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY OF CONVICTION OF ONE COUNT OF BURGLARY AND SENTENCE OF TWENTY YEARS AND CONVICTION OF TWO COUNTS OF ARMED ROBBERY AND SENTENCE OF TWENTY-FIVE YEARS ON EACH COUNT, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE SENTENCES TO RUN CONSECUTIVELY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

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

      . McGaughy’s first name is Germni, but he is generally referred to as Jeremy.

      . Neely testified that he could not call the police from Brandi’s apartment because the gunmen had stolen Brandi's and Neely’s cellular telephones.

      . McGaughy testified that Gray is also referred to as Anthony Gray.

      . McGaughy testified on cross-examination that Leon was one of the men who was hanging around the apartment complex immediately before the robbery. He also stated that he could not remember Leon’s last name.


text:
    James WHITE, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00988-COA.
    Court of Appeals of Mississippi.
    Aug. 14, 2007.

      M.A. Bass, attorney for appellant.
    Office of the Attorney General by Stephanie B. Wood, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   IRVING, J.,

for the Court.

¶ 1. James White was convicted by a jury of manslaughter and was sentenced by the Jefferson County Circuit Court to serve twenty years in the custody of the Mississippi Department of Corrections. Aggrieved, White appeals his conviction, alleging that there is insufficient evidence to support his conviction and that his conviction is against the weight of the evidence, and that the court improperly allowed the State to question him about a prior conviction and an alleged prior bad act.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On July 12, 2003, Dorothy Bell, White’s sister, was having a birthday party at her home in Jefferson County. Numerous people were there, including White and Terrell Ellis, Bell and White’s nephew. At some point during the day, Ellis got into a dispute with his father over whether Ellis’s mother, Bertha, should stay at the party. White intervened and apparently attempted to convince Ellis to stay out of the disagreement between his parents. The exchange between White and Ellis grew heated, and according to some accounts, Ellis then pushed White onto the back of a car. Regina Thomas, Ellis’s girlfriend, testified that White pushed Ellis during the altercation and denied that Ellis pushed White over a car. Thomas indicated that White was significantly larger than Ellis, a fact that White also admitted on the stand. The dispute ended when Bell came over and asked those involved to leave before they ruined her party.

¶ 4. After Bell’s warning, Ellis and Thomas walked some distance away, while White left and drove away from the party. Thomas testified that she worked to calm Ellis and get him to leave the party, which he eventually agreed to do. White testified that he drove some distance away from Bell’s house before he decided to return and apologize to Bell and her husband for creating a disturbance at the party. He then returned to Bell’s house, where he allegedly apologized to Bell and her husband. It was after his return that a second fight broke out between Ellis and White.

5. It is not clear who instigated the second conflict between Ellis and White. Thomas testified that she and Ellis were walking back to the house when White yelled at Ellis, and that Ellis then took off his shirt, presumably in preparation for an altercation with White. Bell also testified that White called out to Ellis, although she stated that Ellis’s shirt was already off prior to White’s shout. To the contrary, White claimed that Ellis approached him and started the altercation. What is undisputed is that the two men approached each other and began wrestling on the ground. Thomas, who was close enough to observe the fight, testified that Ellis tackled White to the ground. Eventually, after what Thomas stated was a short amount of time, Ellis and White broke apart and stood up. Thomas testified that Ellis took a few steps toward her before collapsing to the ground, bleeding from a stab wound to the chest. White immediately left the scene in his car. Betty Segrest, White’s sister who testified on his behalf, admitted that Ellis was not bleeding before the second altercation, and that she knew of no cuts on him prior to the fight with White.

¶ 6. After the second fight, Bell went into the house and dialed 911, but she, Thomas, and some other individuals left to take Ellis to the hospital before any emergency personnel arrived at the house. Ellis was conscious when he arrived at the hospital, but died several hours later from blood loss. Dr. Steven Hayne, a forensic pathologist, testified that his post-mortem examination revealed one fatal stab wound to Ellis’s chest, and several non-fatal cuts. Dr. Hayne also testified that the fatal stab wound pierced Ellis’s heart and caused him to suffer massive internal blood loss, eventually resulting in his death.

¶ 7. After questioning pointed to White as a likely suspect, he was arrested at his mother’s home. An ensuing search of White’s possessions uncovered no weapon that could be positively identified as the knife that killed Ellis. Thomas testified that she was certain that Ellis did not have a knife in his possession, because she felt around in his pocket while she was getting the car keys from him shortly before the incident, and there was no knife in his pocket at that time. Thomas also testified that she saw White pull out something like a knife during the first altercation between Ellis and White.

¶ 8. White was charged with murdering Ellis. At trial, White testified that he did not stab Ellis, but indicated that Ellis did have a knife out during their fight. This testimony did not match White’s statement to police, which was given within a few days of the fight, wherein White said nothing about Ellis having a knife. In that statement, he admitted to fighting with Ellis, although he denied stabbing Ellis. The officer who took White’s statement testified that White was given ample opportunity to relate any information that he wanted to share with the officers. At trial, White denied knowing that Ellis was injured at the time that he left Bell’s house. White intimated that Ellis might have been injured when he came at White with a knife and that White deflected the attack in an attempt to defend himself.

¶ 9. During cross-examination, White testified that he is a peaceful person who does not get angry with people he loves. In response to this testimony, the State requested to introduce evidence that White had previously been convicted of shooting into the occupied dwelling of his ex-girlfriend, who was also the mother of his child. In addition, the State sought to question White about an incident where the same ex-girlfriend was slashed across the face with a knife during an argument between White and another individual. After considering the probative and prejudicial value of the prior bad acts, the court allowed the State to question White about both incidents. At the close of all the evidence, the jury was instructed that it could find White guilty of either murder or the lesser-included offense of manslaughter. Thereafter, the jury found White guilty of manslaughter, and the court sentenced him to twenty years imprisonment.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Sufficiency and Weight of the Evidence

¶ 11. White alleges that “[t]he trial Court erred in not granting [his] Motion for Directed Verdict at the end of the State’s case and at the end of the Defendant’s case because the verdict was against the overwhelming weight of the evidence and was a result of bias, prejudice and passion.” White then goes on to discuss the sufficiency of the evidence supporting his conviction, although he also makes arguments contesting the weight of the evidence.

¶ 12. Motions for a judgment notwithstanding the verdict or for a directed verdict challenge the sufficiency of the evidence supporting a conviction. Duncan v. State, 939 So.2d 772, 782-83(¶ 36) (Miss.2006). By contrast, a motion for a new trial challenges the weight of the evidence supporting a conviction. Jenkins v. State, 947 So.2d 270, 278(¶ 24) (Miss.2006). As White makes arguments regarding both the weight and the sufficiency of the evidence, and as he made a motion for both a directed verdict and for a new trial below, we address both the weight and sufficiency of the evidence.

Sufficiency

¶ 13. When reviewing the sufficiency of the evidence, we review the record in “a light most favorable to the State.” Robinson v. State, 940 So.2d 235, 239-40(¶ 13) (Miss.2006) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). We must “accept as true all evidence consistent with [the defendant’s] guilt, together with all favorable inferences that may be reasonably drawn from the evidence, and disregard the evidence favorable to the defendant.” Id. at 240(¶ 13) (citing McClain, 625 So.2d at 778). If the evidence is such that “ ‘reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ the evidence will be deemed to have been sufficient.” Duncan, 939 So.2d at 783(¶ 36) (quoting Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005)).

¶ 14. White makes very few arguments regarding the actual evidence that sustains his conviction, but he does state: “Once the State has produced evidence of a crime, the suspicious death of Ellis, and then provided circumstances of a ‘scuffle,’ then a name to the jury by some witnesses, then in today’s judicial system, that’s all the public needs for a conviction.” We note that there was testimony from multiple witnesses, including White himself, that he was engaged in a fight with Ellis shortly before Ellis died. Multiple witnesses also testified that Ellis was bleeding heavily from a previously nonexistent stab wound after the “scuffle” with White. White also alleges that the testimony of some witnesses was “lacking in credibility and competency,” but he does not identify which witnesses, or why they were allegedly incompetent or lacking in credibility. We note that Thomas and Bell, both of whom testified, were adults who actually witnessed the events in question. Nothing was produced to bring into question either their credibility or their competency.

¶ 15. We find that the evidence is sufficient to sustain White’s conviction. Although White related a version of events to the jury that conflicted with the version told by the State’s witnesses, the jury is the ultimate judge of the credibility of witnesses. Id. at 782(¶ 35). The testimony by the State’s witnesses indicated (1) that Ellis had no weapon, (2) that Ellis and White began fighting, (3) that Ellis suffered a fatal stab wound to the chest sometime during the fight, and (4) that White left the scene immediately. Thomas and Bell also indicated that it was White who approached Ellis and instigated the fight. Even White’s own witness, Segrest, testified that Ellis was uninjured before the fight with White. Nothing was presented to indicate that anyone else was involved in the second fight between White and Ellis. Under these circumstances, reasonable persons clearly “might reach different conclusions” regarding each element of manslaughter. Therefore, the evidence is sufficient to sustain White’s conviction.

Weight

¶ 16. We will reverse a conviction as against the overwhelming weight of the evidence only when “to allow it to stand would sanction an unconscionable injustice .... ” Jenkins, 947 So.2d at 278(¶ 24) (quoting Baker v. State, 802 So.2d 77, 81(¶ 14) (Miss.2001)). We will “accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Id. (quoting Baker, 802 So.2d at 81(¶ 14)).

¶ 17. Accepting as true all the evidence that supports White’s conviction, allowing his conviction to stand does not “sanction an unconscionable injustice.” As discussed above, the evidence was clear that Ellis was uninjured prior to his encounter with White, and that after the encounter, he was bleeding to death from a stab wound to the chest. The only evidence to indicate that Ellis possessed a knife was White’s testimony, while Thomas testified that Ellis did not have a knife. The jury was entitled to believe whomever it found more credible, and the court did not err in refusing to grant White a new trial.

¶ 18. This contention of error is without merit.

2. Admission of Prior Bad Acts

¶ 19. In this allegation of error, White complains of the admission of two prior bad acts, one of which resulted in a conviction.

¶ 20. In order to present a full picture of the admission, we quote at length some relevant portions of White’s testimony during cross-examination:

A. I thought they were going by what the people say. I didn’t know Terrell was hurt or nothing, I cut him or nothing like that. I ain’t — I didn’t have nothing against Terrell. That [sic] was just like a child to me.
Q. Like a child to you?
A. Yeah, he hurt me before, you’re saying all that about the baby.
Q. About the baby?
A. That’s what I called all my nephews and nieces and things. I love my folks. I didn’t have nothing against my folks.
Q. Well, I understand that you loved your folks, Mr. White.
A. I didn’t have nothing against Terrell.
Q. But sometimes people — things happen and you get mad, don’t you?
A. Nothing make me mad to do nothing to Terrell.
Q. Nothing could make you mad to do that to Terrell?
A. Couldn’t nothing make me mad enough to do nothing to Terrell.
Q. Let’s talk about your temper. Sometimes people can do things to you to make you mad, right?
A. People, but not my folks.
Q. But that made you mad, too?
A. I didn’t get mad. I didn’t get mad. I don’t get mad.
Q. You don’t get mad?
A. No.
Q. You never get mad at everybody [sic], get mad?
A. I get unpleased, I don’t get mad.
Q. Everybody gets mad.
A. Well, not me.
Q. You ain’t never got mad?
A. Well, maybe in my young days, maybe got mad about something, I don’t know. As far as something with my nephew, I didn’t get mad. I’m supposed to be a leader for them.
Q. What about other people you love? Do you get mad at other people? You say you couldn’t get mad at your nephew, but other people you care about?
A. Well, I don’t too much deal with people.
Q. All right.
A. I go to church, I be in the Mississippi [sic] church. I go to church.
⅜ * * *
Q. And so you go to church?
A. Yes, sir.
Q. But even people that go to church can lose their temper and do things that they regret, can’t they?
A. That’s what they did for Jesus and he did for all of us.
Q. And you lost your temper and done things that you regret, don’t you?
A. I didn’t lose my temper and did nothing.

It was shortly after this testimony that the State asked the court to allow it to question White regarding the prior bad acts.

¶ 21. Rule 609 of the Mississippi Rules of Evidence dictates when a prior conviction may be used to impeach a witness. A conviction is allowed so long as “the crime was punishable by death or imprisonment in excess of one year....” M.R.E. 609(a)(1)(A). The prior conviction of a party is admissible so long as its probative value “outweighs its prejudicial effect to the party.” M.R.E. 609(a)(1)(B). The rule states that a conviction is not admissible if it occurred more than ten years ago.

¶ 22. White’s conviction was in 2002, within ten years of the incident in this case. White’s prior crime, shooting into an occupied dwelling, carried a maximum penalty of up to ten years imprisonment. Miss.Code Ann. § 97-37-29 (Rev. 2006). Therefore, the only question that remains regarding the admission of the conviction is whether its probative value outweighed any prejudicial effect. The following factors are to be addressed by the court when determining whether a pri- or conviction’s probative value outweighs its prejudicial effect:

(1) The impeachment value of the prior crime.
(2) The point in time of the conviction and the witnesses] subsequent history.
(3) The similarity between the past crime and the charged crime.
(4) The importance of the defendant’s testimony.
(5) The centrality of the credibility issue.

Bush, 895 So.2d at 847-48(¶ 29) (quoting Peterson v. State, 518 So.2d 632, 637 (Miss.1987)).

¶ 23. In this case, the court looked at the above factors and determined that the prior conviction’s probative value outweighed its prejudicial effect:

I think that the jury is capable of evaluating his testimony, but it seems like the defendant has not told the full story here under the Peterson case. That’s why I asked you that awhile ago. I think under the Peterson case, one of the things that weighs heavily against introduction of the testimony if it is something that is very similar in nature and things of that nature, and I’m considering that at this point.
The testimony the [Sjtate seeks to elicit at this point seems to the court is very highly probative, is extremely probative on an issue that the State has not placed in issue. It’s an issue that the defendant has placed in issue. And I consider the testimony the State seeks to elicit to be extremely probative. In fact, and I don’t know of any other evidence the State could introduce that would address that issue. And it appears to me that since the defendant has opened the door for this type of testimony, while I understand, the court understands that testimony the [Sjtate seeks to elicit is similar in nature and under the Peterson [sic] would weigh against his testimony.
I think if you’ll examine the court’s ruling, this court generally holds in this instance against the admission of the testimony. In fact, I don’t believe I’ve ever allowed the State to introduce testimony this similar in any type of criminal trial. However, in this instance, I see this as being so probative, and the only evidence that could address that issue, I think I’ll allow it. I find it to be more probative than prejudicial, and I’ll allow the testimony.

Prior to this ruling from the bench, the court had discussed the fact that White obtained the prior conviction in 2002. After hearing White’s testimony outside the presence of the jury about what happened with the prior incident where his girlfriend’s face was slashed, the court stated:

Well, again, it appears to the court that Mr. White is- — first of all, has not been forthcoming with his testimony as he sits here and testifies outside the presence of the jury, and that’s obvious to the court. Again, the State did not seek to introduce the testimony that’s been introduced into the trial relating to past conduct and temperament of Mr. White. Mr. White has introduced that. And again, I feel that normally in a situation, I would totally disallow his [sic] testimony.
But I believe in light of the nature of Mr. White’s testimony and in light of the nature of his lack of straight forwardness in his testimony outside the presence of the jury, in light of the highly probative nature of the testimony, not so much the acts themselves that were or were not committed by the defendant, but the fact that they are so contrary to the nature of the defendant that he has described to the jury for himself, I believe that these things are highly probative.
And again, while they are similar in nature to the act charged in this case, I feel they’re so probative that they outweigh any prejudicial effect. And when looking at the Peterson requirements and the nature of the testimony and the setting that’s offered in, I feel that that may be the only testimony—the only way the [Sjtate could—only testimony the [S]tate could introduce to combat this testimony. And I feel it’s so highly probative that I’m going to allow it, even in light of the prejudicial effect of the testimony. And I have duly considered and weighed that testimony, and I find it to be much more highly probative than prejudicial, and I’ll allow it.

Clearly, the court attempted to take into account all the requisite factors and make a ruling in accordance therewith.

¶ 24. When an appellant challenges the admission of evidence such as a prior conviction, we review the trial court’s decision under an abuse of discretion standard. Tate v. State, 912 So.2d 919, 924(¶ 9) (Miss.2005). Even when there is error, we “will not reverse unless the error adversely affects a substantial right of a party.” Id. (quoting Ladnier v. State, 878 So.2d 926, 933(¶ 27) (Miss.2004)). White argues that “[t]he State’s position, supported by the Trial Judge [sic], is that Mr. White committed a violent crime, ergo, he’s not credible, ergo, we use the exception in Rule 609.” A review of the record reveals that the trial court’s decision was based on substantially more than a decision that anyone who commits a violent crime is not credible.

¶ 25. White testified that he does not get angry with his loved ones, and that he, at best, simply walks away if he starts to get angry. Standing in stark opposition to this testimony was White’s prior conviction for shooting into the house of his ex-girlfriend, whom he testified that he loved, after she made him angry. Clearly, White made himself out to have qualities that his prior conviction indicated that he does not have. As such, White opened the door to the State’s questions about his prior conviction. Although the crimes were similar in that they both involved White’s attack on a loved one, we cannot say that the court erred in not finding that the prejudice outweighed the probative value. Given the facts of this case, where White’s story stood in stark opposition to the story told by the State’s witnesses, and where White so clearly placed his character into evidence, we cannot find that the court abused its discretion in allowing the admission of White’s prior conviction.

¶ 26. We are more troubled by the court’s decision to allow the State to question White regarding the prior incident that did not result in a conviction, where his ex-girlfriend’s face was cut during an altercation. The State appeared to have no proof of any conviction in the matter, and the record is unclear as to whether White was ever charged with any crime for the incident. However, during questioning outside the presence of the jury, White admitted that he was arrested as a result of the incident, although he steadfastly maintained that he had not actually done anything wrong. Because White was arrested as a result of the incident, we find that the court did not err in allowing the State to question White about the incident, as the arrest indicates that the incident was in fact a “bad act.”

¶ 27. Furthermore, when White was questioned about the incident in front of the jury, he steadfastly maintained that he had done nothing wrong, and nothing was presented to contradict his averments. Therefore, we find that any error that flowed from the State’s questioning was harmless at best. Additionally, in light of the overwhelming weight of the evidence against White, any error committed by the court in allowing the questioning is harmless. See Kircher v. State, 753 So.2d 1017, 1027(¶ 43) (Miss.1999).

¶ 28. White also complains that the court did not sua sponte instruct the jury to limit its consideration of the State’s questions about his prior bad acts. In general, once a defendant has objected to the introduction of such evidence, the court should issue such an instruction whether it is requested or not, unless the defendant objects to the instruction. Robinson v. State, 735 So.2d 208, 210(¶ 4) (Miss.1999). However, even when the court neglects to issue a limiting instruction, such an omission is harmless in a situation such as this, where the evidence supporting a conviction is overwhelming. Givens v. State, 730 So.2d 81, 90-91 (¶¶ 32-33) (Miss.Ct.App. 1998). Since, as we have already found, the evidence supporting White’s conviction is overwhelming, any error on the part of the trial court in failing to give an instruction is harmless.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JEFFERSON COUNTY.

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

      . Bertha is Bell and White's sister.

      . A knife was found in the glove compartment of White's car. Dr. Hayne testified that the knife could have caused Ellis’s wounds, but a laboratory analysis of the knife did not reveal any blood that could positively identify the knife as the weapon that killed Ellis.

      . Mississippi Code Annotated section 97-3-35 (Rev.2006) defines manslaughter as "[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense....”


author: CHANDLER, J.,

text:
    In the Matter of Adron ALLEN. Betty Russell, Appellant v. James Bruce Allen, Robert Lee Allen, Ronda Nail, Fonda Kannada, Bradley Howard Allen and Cory Scott Allen, Appellees.
    No. 2006-CA-00537-COA.
    Court of Appeals of Mississippi.
    Aug. 14, 2007.

      Omar D. Craig, Oxford, attorney for appellant.
    Carter C. Hitt, Oxford, Jerry P. “Jay” Hughes, for attorneys for appellees.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Betty Allen Russell appeals from the judgment of the Chancery Court of Lafayette County setting aside the conser-vatorship of Adron Allen and subsequent sales of his land. Russell argues that the chancellor erred in finding the conserva-torship invalid, in setting aside two conveyances of Allen’s property, and in ordering a full accounting of funds expended from Allen’s estate.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Adron Allen was born on November 6, 1913. He married Lizzie Myrtle Brum-mett on April 28, 1934. The couple had two children, Bobby Lee Allen and Betty Allen Russell. Bobby passed away from cancer on May 31, 1991, leaving behind a wife and six children. Allen’s wife, Lizzie, passed away the next year on March 8, 1992. Shortly following Lizzie’s death, Russell admitted Allen to a nursing home in Jackson, Mississippi, and filed a petition for conservatorship on April 28, 1992 in the Lafayette County Chancery Court. Allen was served with a summons for the conservatorship, but no other relative of Allen’s was given notice or served. Russell did not contact Bobby’s widow or any of his six children despite the fact that she knew where most, if not all, of them lived.

¶ 4. The Chancery Court of Lafayette County appointed Russell conservatrix of Allen on May 22, 1992. At the time of this appointment, Allen’s real property assets consisted of two tracts of rolling hills in Lafayette County, Mississippi. One tract held 18.5 acres and the other 79 acres. Russell’s attorney filed a first annual accounting of the assets, income and expenditures made on behalf of the ward on July 21, 1993. Copies of cancelled checks were included in the accounting. An amended accounting was filed on May 31, 1994, which appears to be a duplication of the first annual accounting, with the exception that the copies of the cancelled checks were not attached.

¶ 5. In 1994, Russell filed a petition with the chancery court to sell Allen’s 18.5 acre tract to herself. Although her original attorney remained the attorney of record, Russell employed another attorney to handle the land sale. No summons or notice of the land sale was issued to any of Allen’s relatives and the sale was not advertised. The chancery court authorized the sale of the property to Russell for the appraised value of $8,973. A few years later, Russell sold timber from the land for $14,000.

¶ 6. Russell filed a second amended accounting on January 19, 1995. It also appeared to be a duplication of the first annual accounting; yet again, no vouchers were attached as they had been to the first annual accounting. On January 24, 1995, the court entered a judgment approving the second amended accounting, which described the assets, inventory on hand, and income received during 1992 and 1993, and expenditures made through May of 1993.

¶ 7. Russell then filed second and third annual accountings, respectively. Both ac-countings were approved by the chancery court. In the third annual accounting, Russell also requested the court to dispense with future accountings due to Allen’s assets totaling less than $3,000, with no prospect of future income. The chancery court agreed to dispense future ac-countings pursuant to Section 93-13-67 of the Mississippi Code Annotated (Rev. 2004).

¶ 8. In 1998, Russell filed another petition for authority to sell Allen’s remaining tract of 79 acres to herself. Again, no summons or notice was issued to any of Allen’s relatives and the sale was not advertised. Russell employed the same attorney who handled the first land sale approval. The court approved the sale of 79 acres to Russell for the appraised value of $17,816.

¶ 9. Allen died on June 5, 2003. Upon learning of the land sales only after Allen’s death, his six grandchildren filed a petition to set aside the deeds on February 28, 2004. The petition sought to set aside the decrees authorizing and approving both land sales to Russell. The grandchildren argued that the deeds conveying the property were fraudulently procured without proper notice, which rendered the deeds invalid.

¶ 10. On April 4, 2005, the Lafayette County Chancery Court conducted a hearing to determine the validity of the subsequent land sales. While the hearing was conducted in the same court as the initial proceedings filed by Russell to establish the conservatorship and approve Allen’s land sales, a different chancellor presided over these hearings. The new chancellor ordered that the conservatorship was invalid because the proper parties were not served with notice, as prescribed by statute. The court also set aside the two deeds conveying property from Allen’s conservatorship estate to Russell because notice was not given to the required number of Allen’s kin. The court noted that Russell, as conservatrix, was in a fiduciary relationship which required her to act in the ward’s best interest and that she had “breached this trust.” Thus, the title to both properties was vested in Allen’s estate. The $14,000 realized from the sale of timber on the 18.5 acre tract was also put back into Allen’s estate.

¶ 11. The distribution of Allen’s estate was to be completed in a separate matter. In order to determine the funds due to the estate, the chancellor ordered Russell to provide a full accounting covering all assets, liabilities, income, and expenditures, with supporting documentation, as well as a full inventory of Allen’s personal property and assets for the period of May 22, 1992, through the date of Allen’s death. In addition, the clerk of court was appointed to serve as an independent admin-istratrix of Allen’s estate. The chancellor noted that upon the future calculation of distribution of the estate’s assets, Russell would be entitled to a credit for the property taxes paid on the real property from the time she acquired such tracts of land under the conservatorship.

¶ 12. Russell submitted to the court an inventory and accounting of the conserva-torship, which included copies of cancelled checks Russell had written from Allen’s bank account. A detailed inventory of Allen’s furniture and personal property was not included, other than a general reference. The grandchildren objected to the inventory and accounting due to the lack of supporting invoices for the expenses, other than copies of cancelled checks. They also objected to the omission of supporting evidence for the sale of thirty head of Allen’s cattle, which Russell sold for profit while her petition for the conservatorship was pending, and to the omission of evidence supporting the land and timber sales.

¶ 13. The chancery court heard live testimony from witnesses and received evidence for each side on the matter on November 1, 2005. At that time, the court granted an extension for discovery due to incomplete proof of expenditures Russell claimed, and a final hearing on the matter took place on February 27, 2006. During the final hearing, the court issued an order finding that Russell owed Allen’s estate $30,032.29 because she failed to justify certain expenses she claimed were for Allen’s benefit. However, Russell was entitled to offset that payment by $28,984.78 for the purchase of the two tracts of Allen’s land and taxes paid on the land while it was in her possession. The net difference between the amounts Russell was ordered to pay the estate and the credits to which she was entitled was $1,047.51. Russell now appeals that judgment.

STANDARD OF REVIEW

¶ 14. This Court employs a limited standard of review on appeals from the chancery court. Miller v. Pannell, 815 So.2d 1117, 1119(¶ 9) (Miss.2002). Great deference is given to the chancellor in his findings of fact, and we will not disturb those findings unless they are found to be manifestly wrong or clearly erroneous, or where the chancellor applied an incorrect legal standard. In re Estate of Ladner, 909 So.2d 1051, 1054(¶ 6) (Miss.2004). In doing so, our job is to determine whether there was substantial, credible evidence supporting the chancellor’s findings such that the decision was not manifestly wrong or clearly erroneous. In re Estate of Carter v. Shackelford, 912 So.2d 138, 143(¶ 18) (Miss.2005). We also recognize that because a chancellor is the only one to hear the testimony of witnesses and observe their demeanor, he or she is in the best position to evaluate a witness’s credibility. Culbreath v. Johnson, 427 So.2d 705, 708 (Miss.1983).

LAW AND ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN SETTING ASIDE THE TWO CONVEYANCES.

¶ 15. Russell argues that the chancellor erred in setting aside the two conveyances of real property made during the conservatorship. The lower court found the land transfers to be unlawful because interested parties were not served with notice for either the land sales or the establishment of the conservatorship.

¶ 16. Allen had two children, Betty Allen Russell and Bobby. Bobby predeceased Allen, leaving behind six children of his own. Russell admits that she did not join any of her brother’s children in either her petition for conservatorship or the land transactions. However, she argues that she merely followed the advice and counsel of her attorney and was never told that she needed to join the other family members. Russell further argues that a statute of limitations to recover property sold by order of a chancery court applies. Section 15-1-37 of the Mississippi Code Annotated (Rev.2006) states in pertinent part:

Any action shall not be brought to recover any property (a) sold by an order of a chancery court, where the sale is in good faith and the purchase money paid, or (b) partited in kind or sold for partition where the purchase money is paid, unless such action is brought within two years after possession is taken by the purchaser under the sale of the property or by the taker under the decree of partition.

¶ 17. The court approved the sale of the first parcel of the ward’s land in 1994, and approved the sale of the remaining acres of the ward’s land in 1998. The petition to set aside these deeds was not filed until 2004, after Allen passed away. Without question, the petition to set aside the deeds falls outside of the statute of limitations. However, both the conservatorship and the subsequent land sales were correctly deemed invalid by the lower court because procedural requirements were not met. Accordingly, the statute of limitations does not apply.

¶ 18. Under Mississippi law, in order for a transfer of real property under a conservatorship to be valid, summons shall be issued in accordance with Section 93-13-281 of the Mississippi Code Annotated. Miss.Code Ann. § 93-13-51. Notice was not served upon the required number of kin for the establishment of Allen’s conser-vatorship, as required by statute. Section 93-13-281 of the Mississippi Code Annotated states in pertinent part:

In all proceedings involving a ward and brought under Chapter 13, Title 93, Mississippi Code of 1972, except as hereinafter provided, the proceeding shall join as defendants the parents or parent of the ward then living, or if neither be living, two of his adult kin within the third degree computed according to the civil law.

¶ 19. A ward’s property can be validly disposed of only in conformity with statutory provisions. Thompson Funeral Home v. Thompson, 249 Miss. 472, 478, 162 So.2d 874, 876 (1964). Therefore, a sale will be void if the record does not show that at least the statutory number of near relatives were summoned, if there be so many in the state. Temple v. Hammock, 52 Miss. 360, 366 (1876). The legislative intent behind this requirement is to apprise those relatives concerned for the ward’s welfare, so that they may “protect the interest of their kinsman by appearing and objecting to the sale, and showing reasons against it.” Id.

¶20. Russell admits that she did not serve any of Allen’s relatives. Without complying with the notice requirement, the grandchildren could never have had any reason to know or object to the proceedings. We further note that the statute was intended to prevent a claimant from sleeping on enforcing his rights, not to prevent a claimant from bringing suit for something of which he is not aware. Thus, there can be no application of the statute of limitations when the grandchildren were not aware that the sale had taken place and the decrees purportedly authorizing the conveyance of real property were not made in conformity with law. Accordingly, we affirm the lower court’s decision to set aside the two land conveyances.

II. WHETHER THE COURT ERRED IN ORDERING A FULL ACCOUNTING.

¶ 21. Russell claims that the chancery court erred by ordering a full accounting of expenditures made during the conservatorship. She argues that annual accountings of Allen’s estate had previously been approved by another chancellor and the order by the chancellor in the present case requiring additional account-ings falls outside of the statute of limitations and is barred by res judicata. For this argument, Russell relies on Section 15-1-43 of the Mississippi Code Annotated, which states that:

All actions founded on any judgment or decree rendered by any court of record in this state, shall be brought within seven years next after the rendition of such judgment or decree, and not after, and an execution shall not issue on any judgment or decree after seven years from the date of the judgment or decree.

The chancery court approved the first annual accounting on January 24, 1995 and the second and third annual accountings on November 24, 1997. The grandchildren filed suit challenging the conservatorship on February 27, 2004, and the second chancery court ordered a complete accounting of the funds dispersed from Allen’s estate on April 5, 2005. Russell states that, once the accountings were approved of and any later accountings ordered were dispensed with by the first chancellor, she had no need to preserve any documentation for the expenditures. Thus, it was impossible for her to comply with the court’s order. We disagree with Russell’s assessment of the case in this respect.

¶ 22. In an attempt to determine the status of the conservatorship account, the court required Russell to provide adequate information regarding the expenditures she claimed were made on behalf of Allen. Neither the statute of limitations nor res judicata apply to this order as it is not challenging the prior court’s approval. Rather, the chancellor in the present case sought additional information to determine the status of Allen’s holdings.

¶ 23. The chancery court was within its discretion to order a full accounting when it appeared that Russell’s records for the conservatorship were incomplete. Such an order is consistent with a chancery court’s duty to ensure that all proper evidence is admitted in order to give the litigants a fair trial. Bryan v. Holzer, 589 So.2d 648, 656 (Miss.1991).

¶ 24. Russell produced copies of certain cancelled checks made out to her person from Allen’s account, which she claimed were used to purchase clothing and necessary items for Allen. However, Russell could not provide the court, as it requested, with any receipts, invoices, or additional information to support her assertion that the funds were used for Allen’s benefit. Russell also claimed that she deposited the proceeds from the cattle sale into Allen’s account, but she could not produce a deposit slip or demonstrate from Allen’s bank account records that the money was actually deposited into his account. She argues that the bank did not preserve records of Allen’s account beyond six years and, since this suit was filed after the period when the bank would have kept the records, it was impossible to produce what the court required. We note here that Russell made several misstatements while on the stand regarding the amount of evidence she possessed. At one point, the chancellor considered holding her in contempt for perjury. The court, therefore, determined that it could not merely take Russell at her word that the money was used for Allen’s benefit and ordered Russell to show proof that the checks and other items were actually used for her ward. Russell was unable to do so.

¶ 25. As conservatrix, Russell owed a fiduciary duty to Allen. Bryan, 589 So.2d at 658. Because a fiduciary owes such a duty to the ward, Mississippi law provides a chancellor with broad equitable powers to “hold a fiduciary fully accountable for the property with which the fiduciary has been entrusted.” In re Estate of Carter, 912 So.2d at 147(¶ 29). A full accounting of such a conservatorship is an “important mechanism” and “an opportunity for an individual ... to document and justify his/her lawful execution of the duties conferred upon him/her.” Id. at 146(¶ 26). If an individual fails in her duties, “the chancery court may require an accounting ... where there are charges of mismanagement or maladministration of the estate.” Id.

¶ 26. Accordingly, there is no merit to Russell’s assignment of error.

III. WHETHER THE COURT ERRED IN ORDERING RUSSELL TO PAY THE ADMINISTRATRIX CERTAIN FUNDS EXPENDED FROM THE WARD’S ESTATE.

¶27. The lower court ordered Russell to repay certain funds to Allen’s estate, but offset those charges with certain credits. Russell contends that her testimony is sufficient to prove that she used the funds on Allen’s behalf. The lower court noted that Russell contradicted herself on at least two occasions during the hearings and committed perjury. Thus, the chancellor required that Russell provide documentation to back up her claims that funds for which she sought reimbursement were actually used for Allen’s benefit. We will address each payment Russell disputes separately.

A. Proceeds from the sale of Allen’s cattle

¶ 28. The court ordered Russell to repay $9,107.59 to Allen’s estate for the sale of cattle owned by Allen prior to the establishment of the conservatorship. Approximately thirty head of cattle were sold by Russell at Peoples Livestock in Houston, Mississippi, on May 9, 1992, for the sum of $9,107.59. This sale occurred while Russell’s petition for conservatorship was pending before the court. Russell testified that she deposited the proceeds received from the cattle sale in either Allen’s savings or checking account and that the proceeds from the sale were used for Allen’s benefit. Russell claims that she told some of Allen’s grandchildren about the cattle sales and accounted for the sale in her first annual accounting of the conservatorship. However, Russell admits that she does not have the deposit slip evidencing the deposit of the proceeds from the cattle sale into the conservatorship account. The lower court noted in its bench ruling that the check for $9,107.59 was made payable to Russell, and that Russell did not have an explanation for what happened to the money-

¶ 29. We have stated that the proof required of a conservator’s actions is within a chancellor’s discretion. In re Estate of Carter, 912 So.2d at 146(¶ 26). Russell could not provide additional proof, beyond her word, that the cattle proceeds were used on Allen’s behalf. Because a chancellor is the sole judge of a witness’s credibility, we find that the chancellor’s actions in the present case were neither manifestly wrong nor clearly erroneous. Culbreath, 427 So.2d at 708.

B. Checks from conservatorship account

¶ 30. The lower court assessed Russell with the sum of $390 for drawing three separate checks on the conservatorship account made payable to “cash,” $100 for another check, and $200 for a check Russell claims she used to repair her mother’s gravesite. However, Russell could not provide the additional evidence required by the chancellor to support these claims.

¶ 31. The chancellor noted that he did not accept Russell’s explanation for these checks in part because she had perjured herself on the stand. We find no error in the chancellor’s requirement of proof and subsequent order for Russell to repay these funds to Allen’s estate.

C. Sale of timber

¶ 32. Believing that she had authority to do so under the conservatorship, Russell paid $8,973 for 18.5 acres of Allen’s land in 1994. In 2000, Russell sold timber from that parcel for $14,000. Because the land sale was invalid, the court ordered Russell to pay the proceeds from the timber sale to the estate. Russell argues that she should not have to repay Allen’s estate the $14,000, because she should not be held personally liable for mistakes her attorney and the original presiding judge made. We will discuss the alleged mistakes made by her original attorney and the first presiding judge below. However, we note here that, because the land sales failed the procedural requirement for notice, the sale was invalid. As such, Russell did not have legal title to the land and could not legally benefit from any profit made from that land. Accordingly, we can find no error with the chancellor’s order.

D.CRP funds

¶ 33. After Russell purchased the 79 acres of land, she applied for and received payment from the U.S. government under the CRP Program. For planting pine seedlings in 21 of the 79 acres, Russell received $5,338.70. The chancellor ordered Russell to remit this payment back into the estate. Because the land sale was invalid, Russell was not authorized to apply for the CRP program and, therefore, should not keep any benefits incurred from that program. Russell claims that the CRP Program added value to the land. She also argues that she is being doubly penalized because her land was taken away from her and she must pay Allen’s estate income she personally owned.

¶ 34. The land sale was invalid and any profits made from the land after that sale were correctly redistributed to Allen’s estate. Accordingly, we find no eiror in the chancellor’s decision.

IV. WHETHER THE COURT ERRED BY HOLDING RUSSELL LIABLE FOR ALLEGED MISTAKES MADE BY HER ATTORNEY.

¶ 35. Russell claims that she was improperly held liable for mistakes made by her original attorney and the original presiding chancellor. She argues that she relied solely on her former attorney’s advice and did not knowingly commit any wrongdoing; yet, she is being personally and financially punished by the court.

¶ 36. As we noted above, this Court is charged with the responsibility of reviewing a chancellor’s decisions under a limited standard of review. Miller, 815 So.2d at 1119. Because a chancellor is the sole judge of a witness’s demeanor and credibility, great deference is given to the chan-eellor in his findings of fact. Culbreath, 427 So.2d at 708. Accordingly, we will not disturb those findings unless they are found to be manifestly wrong or clearly erroneous, or where the chancellor applied an incorrect legal standard. In re Estate of Ladner, 909 So.2d at 1054(¶ 6).

¶ 37. Upon a thorough review of the record, it is clear that the chancellor sought an equitable result for the parties involved. The chancellor stated that he would not penalize Allen’s heirs for any alleged mistakes made in other proceedings, and further noted that he did not want either party to pay or owe one penny more than what was required by law. The chancellor was very careful in making his assessment of the accountings for Allen’s estate and the expenditures made therein. His decision does not contradict the evidence or testimony provided. Because we find there was credible evidence to support the chancellor’s findings, we cannot assign error to his actions or say that he abused his discretion. Accordingly, we affirm the lower court’s decisions.

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

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


author: KING, C.J.,

text:
    Calixto MARTINEZ, Appellant v. SWIFT TRANSPORTATION and Insurance Company of the State of Pennsylvania, Appellees.
    No. 2006-WC-01442-COA.
    Court of Appeals of Mississippi.
    Aug. 14, 2007.

      John Hunter Stevens, attorney for appellant.
    L. Pepper Cossar, Ridgeland, attorney for appellees.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   KING, C.J.,

for the Court.

¶ 1. Calixto Martinez appeals the trial court’s decision upholding the order of the Mississippi Workers’ Compensation Commission. In that order, the Commission reversed the decision of the administrative law judge (ALJ), in which the administrative law judge found that Martinez was entitled to temporary total disability benefits at a rate of $316.46 per week for the period beginning April 12, 2001 through September 19, 2002, and permanent partial disability benefits for an 8% total body impairment rating at a rate of $252.51 per week for a period of 450 weeks, beginning September 19, 2002. The Commission upheld the award of temporary total disability benefits. The Commission also held that Martinez was not entitled to the permanent partial disability benefits as awarded by the ALJ; however, Martinez was entitled to receive permanent partial disability benefits for a 30% loss of use to his right arm at a rate of $316.46 per week for a period of 60 weeks. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Calixto Martinez is a fifty-five-year-old Hispanic male who emigrated to the United States from Mexico in 1976. He received his education in Mexico, where he completed ten years of general education (the Mexican equivalent of a high school diploma) and received three years of training in the electrical field and three years of training as a mechanic. His educational credentials are not recognized in the United States, and his only vocational training in the United States was a three-week truck-driving class. Since arriving in the United States, Martinez has worked as a farm laborer, auto mechanic, forklift operator, machine operator, light electrician, and truck driver.

¶ 3. In April 2001, Martinez was employed with Swift Transportation as an over-the-road truck driver. On April 12, 2001, while Martinez was driving through Knoxville, Tennessee, a passenger car suddenly swerved in front of Martinez. Martinez, who was obeying the speed limit and all other traffic laws, swerved to avoid the car. As a result, he crashed into the median. His 18-wheeler jack-knifed and caught fire, resulting in a total loss of the tractor-trailer, which was valued at approximately $150,000. Martinez escaped with lacerations to his face and pain in his right shoulder and torso. He received emergency treatment in Knoxville before returning home. The emergency room physicians advised him to seek follow-up care.

¶ 4. Martinez sought treatment with Dr. Jose Ferrer, an orthopedic surgeon, on April 27, 2001, complaining of significant pain in his abdomen and torso. Following a physical examination and x-rays, Dr. Ferrer concluded that Martinez was suffering from a left rib fracture and a right shoulder contusion and sprain. Dr. Ferrer restricted Martinez’s activities for three days, releasing him back to work on April 30, 2001. Martinez did not see Dr. Ferrer again for treatment until September 3, 2002.

¶ 5. The medical records submitted for review by the administrative law judge indicate that Martinez began seeing another orthopedic surgeon, Dr. H.F. Savoie, regarding his shoulder injury at some point before September 11, 2001. Dr. Sa-voie’s September 11, 2001 report indicates that Martinez was undergoing physical therapy and was restricted from working until at least September 24, 2001. On October 25, 2001, Dr. Savoie declared that Martinez was at MMI, although he was concerned that Martinez might need further treatment at some point in the future. Dr, Savoie rated Martinez as having an 8% impairment to his arm, which translated to a 5% impairment to the entire body.

¶ 6. Martinez saw Dr. Savoie again in January 2002 with complaints of shoulder pain. An MRI scan revealed an injury requiring surgery on the right shoulder. Dr. Savoie operated in February 2002, repairing Martinez’s rotator cuff. By June 24, 2002, Dr. Savoie stated that Martinez’s shoulder “objectively looks quite good and his x-rays look quite good,” but Martinez was still complaining of shoulder pain, popping, grinding, and swelling. At this time, Dr. Savoie still had not released Martinez to return to work. Dr. Savoie ordered an arthrogram, which came back negative. Dr. Savoie released Martinez to return to work on July 25, 2002. On September 19, 2002, Dr. Savoie issued a final impairment rating. Dr. Savoie determined that Martinez had “a total permanent partial impairment of 14% to the right upper extremity based on the problems in his shoulder. A 14% impairment to the upper extremity is an 8% impairment to the body as a whole. He can be safely released at MMI with a 14% impairment to the arm and 8% to the body.” Dr. Savoie further found that Martinez had no permanent restrictions or limitations related to his shoulder injury, but Dr. Savoie acknowledged that Martinez was seeing a second physician for injuries to his ribs and chest and that Martinez might have some restrictions associated with those injuries.

¶ 7. During the final stages of his treatment with Dr. Savoie, Martinez returned to see Dr. Ferrer on September 3, 2002. This time, Martinez was complaining of “severe left lumbar pain and pain in the sternum.” Dr. Ferrer conducted some tests and gave Martinez a steroid shot for immediate pain relief. Two weeks later, Martinez returned for a follow-up visit. At that time, Dr. Ferrer diagnosed Martinez with “severe posttraumatic arthritis of the sternal manubrial joint.” Dr. Ferrer concluded that Martinez had an 8% total body impairment rating based on his shoulder injury, the arthritis, and some remaining issues stemming from Martinez’s rib fracture. Dr. Ferrer released Martinez to return to work with the following restrictions: “no heavy lifting more than 15 pounds and no overhead work.”

¶ 8. Martinez filed his petition to controvert on November 7, 2002. Swift answered the petition and subsequently named Dr. Rahul Vohra as a medical expert and Mr. Bruce Brawner as a vocational expert. Swift contested the existence and extent of Martinez’s temporary total and permanent partial disability as a result of the work-related accident.

¶ 9. Dr. Vohra examined Martinez on December 8, 2003. After a physical examination and a review of Martinez’s medical records, Dr. Vohra requested a functional capacity exam. Dr. Vohra’s initial impression was that Martinez exhibited signs of histrionics and pain amplification. The results of the functional capacity exam (FCE) were inconclusive, as the therapist conducting the examination found that the results indicated “what the patient was willing to do and not his physiological maximum.” She concluded that it was “difficult to determine true physical abilities at this time.” Dr. Vohra reviewed the results of the FCE and concluded that Martinez was able to “work at a full-duty level other than overhead lifting,” which Dr. Vohra recommended be limited “to 50 lbs on an occasional basis.” Ultimately, Dr. Vohra adopted Dr. Savoie’s 14% impairment rating for Martinez’s right arm.

¶ 10. On March 15, 2005, following a hearing on February 7, 2005, the ALJ entered an order. In that opinion, the ALJ adopted the findings of Drs. Ferrer and Savoie, which held that Martinez had an 8% impairment to his body based on the injuries sustained in the accident. The ALJ further found that Martinez was restricted from lifting more than fifteen pounds. The ALJ concluded that these restrictions, combined with Martinez’s age, employment history, limited education, and county of residence, made finding employment difficult.

¶ 11. Based on those findings, the ALJ granted Martinez temporary total disability benefits from the date of the accident, April 12, 2001, through the date of Martinez’s maximum medical improvement, September 19, 2002. The ALJ also ordered payment of permanent partial disability, based on the 8% total body impairment rating, for a period of 450 weeks.

¶ 12. Swift appealed to the Commission, which determined that Martinez suffered two work-related injuries, one to his rib and sternum and one to his right shoulder. The Commission discounted Dr. Ferrer’s findings that 3% of Martinez’s 8% body impairment was due to the rib and sternum injury and found that Martinez suffered no lasting effects from the injury to his rib and sternum. The Commission did adopt Dr. Savoie’s 14% impairment rating to Martinez’s arm, a finding that was also adopted by Swift’s expert, Dr. Vohra.

¶ 13. Because the Commission concluded that Martinez’s permanent injury was limited to his shoulder, the Commission also found that the total body impairment rating would not apply. Accordingly, the Commission treated Martinez’s injury as a scheduled member injury and not as a total body injury. Given the restrictions on Martinez’s ability to use his arm and his previous employment history, the Commission concluded that Martinez had suffered a 30% loss of the use of his right arm for wage-earning purposes. The Commission overruled the ALJ’s award with respect to permanent partial disability benefits to the body as a whole and awarded Martinez permanent partial disability benefits based on its findings of an injury to a scheduled member. The Commission did not disturb the ALJ’s award of temporary total disability benefits.

¶ 14. Martinez appealed the Commission’s order to the Circuit Court of Claiborne County. The trial judge affirmed the award of the Commission. Martinez timely appealed.

STANDARD OF REVIEW

¶ 15. This Court’s standard of review for decisions of the Workers’ Compensation Commission is limited. This Court will reverse an order of the Workers’ Compensation Commission “only when a Commission order is not based on substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law.” Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992). Substantial evidence is defined as “more than a ‘mere scintilla,’ ” but it does not rise to the level of a preponderance of the evidence. Delta CMI v. Speck, 586 So.2d 768, 773 (Miss.1991).

¶ 16. In reviewing the facts on appeal, this Court’s “function is to determine whether there is substantial credible evidence which would support the factual determination made by the Commission.” Hardin’s Bakery v. Taylor, 631 So.2d 201, 205 (Miss.1994). If the Commission’s findings are supported by substantial evidence, this Court is bound to accept those findings, “even though that evidence would not be sufficient to convince us were we the fact finders.” Id.

ANALYSIS

¶ 17. Martinez’s single issue on appeal is whether the Commission erred in failing to award benefits based on an injury to the body as a whole. Martinez cites Mississippi Code Annotated Section 71-3-17 (Rev.2000) and argues that the Commission erred in holding that Martinez’s disability was limited to his upper extremity due to the shoulder injury. The Commission’s findings state that Martinez was not entitled to an award based on an injury to the body as a whole because Martinez did not suffer any disability with regard to his rib and sternum injury. Martinez contends that the Commission’s findings on this issue are not based on substantial evidence and are contrary to law.

¶ 18. The Commission adopted the findings of Drs. Savoie and Vohra and rejected the findings of Dr. Ferrer. The Commission based its findings on the objective medical evidence contained in the record. Accordingly, under the applicable standard of review, this Court holds that the Commission’s findings are supported by substantial evidence and are not arbitrary or capricious.

¶ 19. Dr. Savoie treated Martinez for his shoulder injury and performed the surgery to repair the tear in Martinez’s rota-tor cuff. Dr. Savoie concluded, when Martinez reached maximum medical improvement, that Martinez suffered a total permanent partial impairment of 14% to his right arm. Dr. Savoie also concluded that there were “[n]o permanent restrictions or limitations, however, as far as the shoulder alone is concerned.” Dr. Savoie rendered no opinion with regard to Martinez’s rib and sternum injury, noting that another physician — Dr. Ferrer — was treating Martinez for that condition.

¶ 20. Dr. Vohra reviewed Dr. Savoie’s records and conducted his own examination of Martinez. Dr. Vohra agreed with Dr. Savoie’s assessment of Martinez’s shoulder injury and adopted Dr. Savoie’s 14% rating of permanent partial impairment to the right arm. Dr. Vohra disagreed with Dr. Savoie’s findings that Martinez need not be subject to any restrictions, however, and imposed a restriction on Martinez’s overhead lifting to fifty pounds on occasion.

¶21. Dr. Ferrer treated Martinez for his sternum and rib injury. When Dr. Ferrer initially treated the injury, he concluded that Martinez’s fractured rib would restrict his ability to work for three days but that Martinez could be released with no restrictions thereafter. He concluded that Martinez would reach maximum medical improvement within three days, that the injuries would heal, and that Martinez would suffer no impairment as a result.

¶ 22. When Martinez returned for treatment almost eighteen months later, Dr. Ferrer conducted tests, including a CT scan, and concluded that Martinez suffered post-traumatic sternal arthritis that created a 1% impairment to Martinez’s body and post left rib cage fractures with chronic interscapular strain that created a 2% impairment to Martinez’s body. Dr. Ferrer further opined that Martinez’s shoulder injury created a 5% impairment to Martinez’s body. Dr. Ferrer then imposed the lifting restriction of no more than fifteen pounds based on Martinez’s impairment rating.

¶ 23. Dr. Vohra examined Martinez and reviewed Dr. Ferrer’s notes. It appears, however, that Dr. Vohra did not have access to the films of the CT scan. Dr. Vohra noted in his physical examination that while Martinez complained of sharp pain in the area between the ninth and twelfth ribs, consistent with his injury (a fracture of the ninth rib), given Dr. Ferrer’s diagnosis, there was no explanation for Martinez’s continued complaints of severe pain. Additionally, Dr. Vohra noted that “interestingly,” Martinez was not experiencing pain in his upper sternum, as would be expected from reviewing Dr. Ferrer’s notes, but was complaining of pain in his lower sternum. Dr. Vohra suggested a CT scan of Martinez’s lower sternum and a bone scan. It does not appear from the record that these tests were ever ordered. Dr. Vohra ultimately concluded that absent some significant findings in the recommended tests, Martinez should be considered at maximum medical improvement with respect to the rib and sternum injuries and would not be eligible for an impairment rating based on the types of injuries he sustained.

¶ 24. The Commission, sitting as the finder of fact, has the power to determine which evidence it finds credible and which evidence it does not. Raytheon Aero. Support Svcs. v. Miller, 861 So.2d 330, 335(¶ 11) (Miss.2003). As such, the findings of the Commission with regard to the credibility of evidence are due substantial deference, and this Court will not disturb those findings absent a finding that the Commission acted arbitrarily in judging the evidence before it. Id. Because the Commission rejected Dr. Ferrer’s objective medical findings in favor of Dr. Vohra’s objective medical findings, this Court cannot say that the Commission’s findings are arbitrary or capricious. Martinez argues that the Commission was required to give greater weight to Dr. Ferrer’s findings because Dr. Ferrer was a treating physician and Dr. Vohra was retained as an expert for Swift. While it is true that it is a “self-evident proposition” under workers’ compensation law that “treating physicians’ opinions carry more weight than those of physicians who examine a claimant solely for purposes of testifying,” Clements v. Welling Truck Svc., Inc., 739 So.2d 476, 477, n. 1 (¶ 9) (Miss.1999), Mississippi law does not require the Commission to give a treating physician’s opinion more weight than an expert witness physician’s opinion. See, e.g., Doyle v. Public Emples. Ret. Sys., 808 So.2d 902, 907 (¶¶ 17-18) (Miss.2002) (holding that Mississippi law requires no such deference to a treating physician’s opinion); Mabry v. Tunica County Sheriff’s Dep’t, 911 So.2d 1038, 1042(¶12) (Miss.Ct.App.2005) (holding that the Commission, as the trier of fact, determines the credibility of conflicting medical opinion testimony without regard to treating versus non-treating physician status).

¶ 25. In finding that Martinez suffered a disabling injury to his arm only, and not to his rib and sternum, the Commission noted that Dr. Ferrer’s initial opinion found that Martinez suffered no impairment and required no restrictions. The Commission specifically found that Dr. Ferrer’s second assessment of a 3% impairment rating was not credible. Instead, the Commission relied on Dr. Vohra’s conclusions with respect to the rib and sternum injury. This Court finds that the Commission acted within its authority in determining that Dr. Ferrer’s opinions were not as credible as those of Dr. Savoie and Dr. Vohra.

¶ 26. Having issued a finding of permanent partial disability with regard to Martinez’s arm only, the Commission correctly concluded, as a matter of law, that Martinez’s injury was subject to disability benefits under the scheduled member chart set forth in Mississippi Code Annotated Section 71 — 3—17(e)(1) and not the general total body impairment scheme stated in Mississippi Code Annotated Section 71-3-17(c)(25).

¶ 27. Given the 14% impairment rating given by both Dr. Savoie and Dr. Vohra and the lifting restriction imposed by Dr. Vohra, the Commission concluded that Martinez suffered a 30% loss of wage-earning capacity in his right arm due to the injury to his right shoulder. The Commission then awarded permanent partial disability benefits for sixty weeks (30% of the 200 weeks required by statute for the total loss of an arm) at a rate of $316.46 per week (66-¾% of Martinez’s stipulated average weekly wage of $584.74 as required by statute). This award is consistent with the requirements of Mississippi Code Annotated Section 71-3-17 and is not contrary to law.

¶28. For the foregoing reasons, this Court affirms.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF CLAIBORNE 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.