author: IRVING, J.,

text:
    James Terry DYKES, Appellant v. Shelia Edwards Dykes McMURRY, Appellee.
    No. 2005-CA-00929-COA.
    Court of Appeals of Mississippi.
    Sept. 19, 2006.

      James R. Hayden, Hattiesburg, attorney for appellant.
    William E. Andrews, Purvis, attorney for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   IRVING, J.,

for the Court.

¶ 1. James Terry Dykes and Shelia Dykes, now Shelia Dykes McMurry, were granted a divorce on the ground of irreconcilable differences. Pursuant to the parties’ court-approved agreement, Shelia was granted custody of the couple’s three children. Thereafter, James requested a modification of the custody order to change the primary physical custody of his sons to him rather than Shelia. James also filed a complaint requesting that the Perry County Chancery Court grant him relief from his child support obligations to his oldest son, Kee. After a trial, the court declined to alter the custody arrangement or alter James’ child support obligations to Kee. Aggrieved, James appeals and asserts that the court erred in requiring him to continue paying child support for Kee and in refusing to alter the custody order so as to award custody to him.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. James and Shelia were married for nearly twenty years before their divorce on May 5, 2003. After their divorce, Shelia was granted primary physical custody of Kee, born September 4, 1987, Taler, born October 26, 1992, and Hunter, born November 22, 1999. Shortly after the divorce, Shelia remarried, and James remarried his current wife some time after Shelia’s remarriage. On June 2, 2004, James filed a petition requesting modification of the custody order and seeking custody of his three children. The petition alleged that the children were “abused mental [sic] and verbally.” On October 26, 2004, James filed a petition requesting that the court terminate James’ child support obligations to Kee, on the grounds that Kee refused to pursue a relationship with him.

¶ 4. The court ordered a custody evaluation by Deslie Bonano, a licensed clinical social worker. Bonano found that it would be in Taler and Hunter’s best interests for their custody to be placed with James. However, Bonano testified that she did not realize that the legal standard pertaining to custody modification determinations is different from the standard in initial custody determinations. Therefore, Bonano’s evaluation only addressed which parent would have been more fit for initial custody placement and did not specifically address what material change had occurred in order to warrant a modification of the custody order.

¶ 5. After hearing all the evidence, the court found that custody should be left with Shelia. The court noted that all the children did well in school and were reported to be well-adjusted. The court acknowledged Taler’s stated desire to live with his father, but found that nothing Taler said indicated that he suffered “any treatment that is detrimental to him” at his mother’s house. The court found that “[e]ach parent is found to have put pressure on Taler in their own way of communicating with him.” The court further noted that Taler appeared to “fit in well with the extended families of both parents.” The court noted that “the law of this jurisdiction requires more than occasional unhappiness in a child to justify a contested change of custody” and determined that there had been no material change in circumstances sufficient to justify an alteration of the custody order. Although the court declined to grant James custody of the children, the court did alter the custody arrangement to give James a longer period of visitation during the summer break.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

Standard ofRevieiv

¶ 7. We apply a limited standard of review to a chancellor’s determination in custody cases. Dep’t of Human Servs. v. Marshall, 859 So.2d 387, 389(¶ 3) (Miss.2003) (citing Miss. Dep’t of Human Servs. v. Shelby, 802 So.2d 89, 92(¶ 11) (Miss.2001)). We will not reverse the chancellor’s findings “unless the court was manifestly wrong, abused its discretion or applied an erroneous legal standard.” Id. (citing Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997)).

1. Child Support for Kee

¶ 8. The seminal Mississippi case addressing situations in which child support may be terminated due to deterioration of the parent-child relationship is Caldwell v. Caldwell, 579 So.2d 543 (Miss.1991). In Caldwell, a father argued that his son had “abandoned the father-son relationship,” thus releasing the father from his obligation to pay child support for the son. Id. at 548. The father in Caldwell based his argument on eases involving payment of a child’s college expenses, but the Mississippi Supreme Court pointed out that “paying for the extra expense of a child’s college education is much different from paying for a child’s support.” Id. (citing Nichols v. Tedder, 547 So.2d 766, 769 (Miss.1989)). The court found that, in order for a child to reject the parent-child relationship to the point where child support is forfeited, the child’s actions would have to be both “clear and extreme.” Id. The court explained: “The amount of money that the noncustodial parent is required to pay for the support of his minor children should not be determined by the amount of love the children show toward that parent.” Id. (quoting Holston v. Holston, 58 Md.App. 308, 473 A.2d 459, 463 (Md.Ct.Spec.App.1984)).

¶ 9. In Marshall, the Mississippi Supreme Court found that a child’s actions did not rise to the level necessary to terminate child support obligations where the child refused to speak to the father during their second meeting and said that he wanted to go home. Marshall, 859 So.2d at 390(¶ 8). The court noted: “One bad visit between a son that has seen his father twice after many years apart does not rise to the level of clear and extreme conduct envisioned by Caldwell. It is only reasonable that [the child] would harbor some resentment against his father.” Id.

¶ 10. This Court found conduct sufficient to terminate child support obligations in Roberts v. Brown, 805 So.2d 649 (Miss.Ct.App.2002). In Roberts, a daughter accused her father of raping her, but the father was acquitted after a criminal trial on the matter. Id. at 650-51 (¶¶ 3-4, ¶ 9). The daughter also refused to visit her father. Id. at 650(¶ 2). We found that the daughter’s accusation of rape constituted “clear and extreme” actions, sufficient to terminate the father’s child support obligations. Id. at 653(¶ 19).

¶ 11. In the case before us, we find that Kee’s actions are not clear and extreme. When asked why he had stopped visiting his father, Kee testified that he stopped visiting his father because he was hurt by the lawsuit against his mother and by his father’s petition to terminate child support. Kee specifically testified that he still loved his father but does “not want anything to do with him.” Kee testified that the relationship between him and his father “is finished.” Kee testified that his father does not come to any of his games or school functions. Kee further testified that his father had not called his house to speak to him or made any special effort to sit down and talk with him. Kee specifically testified that he was hurt by his father’s allegations in his petition that he and his brothers had been verbally abused and needed counseling. Kee indicated that his father’s complaint that Kee never calls his father is one-sided: “he could have called me too.”

¶ 12. James testified that he would be willing to resume negotiations with Kee and attempt to have a relationship with him. In its judgment, the court found:

While Plaintiff says he wants custody of all three children and wants a better relationship with Kee, he requests that his support obligation be terminated as to Kee because of the unpleasantness between them.... The Court finds that position to be somewhat contradictory, and an oversimplification of dealing with the relationship between a father and his son.

The court then declined to grant James relief from his child support obligations to Kee.

¶ 13. Although the court provided little in the way of reasoning for its decision, we find that the court was not manifestly wrong, did not abuse its discretion, and did not apply an erroneous legal standard in finding that James’ child support obligations should not be terminated. Kee testified that he still loves his father. It is conceivable that the relationship between Kee and James can be repaired. While James indicated that he has done everything to get in touch with Kee other than waylaying Kee’s car, evidence at trial indicated otherwise. There was no indication that James has made any effort to attend any of Kee’s school and sports functions. Testimony indicated that James never called Kee’s house to ask to speak to him.

¶ 14. Given the circumstances surrounding Kee and James’ relationship, specifically the custody action filed by James against Shelia alleging that she abuses her children, we do not find that Kee’s current unhappiness with his father indicates a “clear and extreme” rejection of the father-son relationship. Kee indicated that he was hurt by the legal action against his mother, and the allegations of abuse contained therein, and was further hurt by his father’s petition to terminate child support. Kee did not testify that he hates his father; in fact, he testified that he still loves his father. While Kee has indicated that he wants nothing more to do with his father, his affirmation of love for his father indicates that his rejection of the father-son relationship is not entirely clear. Furthermore, given the petition filed by James and the allegations contained therein, namely that Kee’s mother abused Kee and his siblings, Kee’s current unhappiness with his father is not “extreme.” Therefore, the court did not err in declining to terminate the child support owed by James to Kee.

2. Custody

¶ 15. In order to successfully petition for a modification of an existing custody order, a party must show that there has been “a material change in circumstances which adversely affects the welfare of the child” and that “the best interest of the child requires the change of custody.” Brocato v. Brocato, 731 So.2d 1138, 1141(¶ 9) (Miss.1999) (quoting Smith v. Jones, 654 So.2d 480, 486 (Miss.1995)). When determining the above, a court should look at “the ‘totality of the circumstances.’ ” Id. (quoting Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993)). The moving party has the burden of proving that a material change has occurred. Id. (citations omitted). Although a party must show that there has been a material change in circumstances to justify a custody modification, the best interest of the child is our “polestar consideration.” Cri der v. Crider, 904 So.2d 142, 144(¶ 6) (Miss.2005) (quoting Riley v. Doerner, 677 So.2d 740, 744 (Miss.1996)).

¶ 16. We note that Taler testified that, although he would prefer to live with his father, he had never been threatened “or anything of that nature” at his mother’s house. No other evidence indicated that Taler had ever been threatened or verbally abused. Taler himself testified that he did not feel that his mother was attempting to limit his time with his father. When asked why he would prefer to live with his father, Taler pointed out that he would have a room of his own if he lived with his father. However, Taler later testified that he did not mind sharing a bedroom with Hunter, which is the arrangement at his mother’s house. Taler testified that his mother attends all of his school functions, but that his father does not. Taler also testified that his mother had told him that she would love him, even if he chose to live with his dad. Taler testified that he has no reason to say he is unhappy, testified that no one has mistreated him, and testified that he gets along well with his stepbrothers and stepsisters. Taler further testified that he gets to do “fun activities” at his mother’s house, such as fishing, hunting, and playing baseball.

¶ 17. Diane Dykes, James’ current wife, testified that she loves James’ children. She also testified that the children are unkept and appear “thrown away” when they come to visit their father from their mother’s house. James himself, however, testified: “Taler again has said from the time that [Shelia] left me that he wanted to live with me. He’s had to live in — I will not say bad situations. I do not say that. I never said that Sheila was a bad mama to him.” James also testified that “Joey [Shelia’s husband] as far as I know has never been mean to [Taler].” Taler’s teacher, Barbara Oberst, testified that Taler appears happy and well-rounded. She also testified that Taler and his siblings always appear to be well-groomed and appropriately dressed.

¶ 18. Shelia testified that, since she married Joey, Taler’s grades have not dropped at school, and no discipline problems have been reported to her. Shelia also testified that the only times Taler tells her that he wants to live with his dad is when he gets in trouble or is disciplined.

¶ 19. James relies heavily on the custody evaluation completed by Bonano. However, Bonano testified that she was not aware of the test for custody modification. Therefore, Bonano addressed only what would be in the best interest of Taler, as though she were conducting an evaluation for an initial custody determination. Bo-nano also testified that Shelia’s home was “appropriate as far as living arrangements for the kids.” She noted that Shelia’s home, as well as James’, was “clean and neat.” Bonano testified that Shelia’s new marriage was a change for Taler and Hunter in the sense that they “no longer slept with their mom” and “[t]hat was very difficult for them to do.” Bonano testified that she thought Taler exhibited signs of anxiety. Bonano testified that she had had Taler draw pictures for her of both his families. In the picture of his mother’s family, none of the figures were given hair or eyes, while James’ family had hair and eyes. Bonano interpreted this to mean that “he [Taler] does not have an identity there [at Shelia’s house].” However, Bo-nano then went on to testify that “[t]hat is a laymen’s [sic] opinion,” although she then testified that that opinion was based on picture interpretation that she had learned in a graduate school class. Bona-no concluded from her evaluation that Taler would get “some relief’ if he went to live with his father. Bonano testified that she is concerned because she believes that Shelia is more concerned with “having the image with the public that the family remain as a whole” than with addressing why Taler has stated that he would prefer to live with his father.

¶ 20. During cross-examination, Bonano admitted that Taler’s anxiety could be caused by him “having to choose one parent against the other.” When Bonano testified that he appeared calm around his father, Shelia’s attorney got her to acknowledge that that could be in part because anxiety would stem from having to face Shelia and tell her that he did not want to live with her, whereas no such anxiety would be caused by relating with his father. Despite recommending that Taler live with his father, when asked which parent appeared “to have the greatest opportunity to attend to [Taler’s] needs on a daily basis,” Bonano responded that Shelia was best suited to providing for Taler’s daily needs.

¶21. In making its ruling, the court acknowledged Bonano’s findings that Taler’s behavior indicates that he is “symptomatic” of depression and anxiety, but also noted that Bonano “did not recommend future counseling at this time.” The court found that Taler’s current discomfort at his mother’s house does not constitute a material change in circumstances sufficient to justify a change in custody: “the law of this jurisdiction requires more than occasional unhappiness in a child to justify a contested change of custody.”

¶ 22. After reviewing the record, we cannot say that the court in this case abused its discretion in refusing to modify the custody order. The Mississippi Supreme Court has held: “This Court has long held that remarriage itself does not constitute a material change in circumstances that would justify a change of custody.” Robison v. Lanford, 841 So.2d 1119, 1123(¶ 14) (Miss.2003) (citing Allen v. Allen, 243 Miss. 23, 33, 136 So.2d 627, 632 (1962)). We see little change in circumstances in the present case other than Shelia’s remarriage to her current husband. Specifically, the evidence presented clearly showed that Taler has suffered no abuse at his mother’s house. Taler himself testified that he has never felt threatened at his mother’s house. Evidence indicated that Taler has enjoyed himself while on trips with Shelia and her new husband, and is healthy and well-adjusted in his mother’s home. Shelia’s testimony indicated that Taler only complained of wanting to live with his father when he got in trouble. James, as the moving party, failed to show that there has been a material change in circumstances adverse to his children’s well-being sufficient to warrant a change in custody.

¶ 23. Furthermore, while testimony indicated that Taler would prefer to live with his father, it is not clear from the record that such a placement is in Taler’s best interests. Although Bonano testified that she believed the change in custody would be in Taler’s best interests, she also testified that Shelia was better suited to providing for Taler’s daily needs than James. In short, there was conflicting evidence as to which placement would be in Taler’s best interests. The court reasonably could have found that either placement was in Taler’s best interests, and did not err in finding that remaining in Shelia’s custody was in Taler’s best interests. The court specifically found that “both parents love their children and desire to be with them in a custodial capacity.”

¶ 24. James also contends that the court erred in not making an on-the-record finding as to why Taler’s preference to live with his father was not in Taler’s best interests, and James cites Polk v. Polk, 589 So.2d 128, 130 (Miss.1991), as support. However, a child’s suggestion of preference, without supporting evidence that there has been a material change in circumstances adverse to the child’s best interests, is not sufficient to justify a modification of a custody order. Best v. Hinton, 838 So.2d 306, 308-09 (¶¶ 6-11) (Miss.Ct.App.2002). Regardless of a child’s preference, we have held that, in order to modify a custody order, a party must show “that the custodial situation ... ha[s] so deteriorated since the earlier adjudication as to adversely affect the child’s welfare.... ” Id. at 309(¶ 11).

¶ 25. Since no material change in circumstances was proven, the court did not err in refusing to modify the custody order. Mississippi law requires a material change in circumstances before alteration should be made to a custody determination. Furthermore, although courts should still consider strongly what is in the best interests of a child, the evidence in the present case is not unequivocal that placement with James would be in his children’s best interests. The court did not err in declining to grant James custody of his children.

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

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

      . Prior to the court's order, James had custody for only two weeks during the summer. The modification order gave James custody "from the weekend when school is out until the weekend before school begins the next semester, providing however, that [Shelia] shall have the children with her every other weekend and two weeks in July during the summer vacation period.”

      . We do not address Hunter’s preferences, because he is too young to express a preference as to which parent he would prefer to live with.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Sarah J. GRIFFIN, et al., Appellants v. BRIAN DEVELOPMENT CO., INC., et al., Appellees.
    No. 2005-CA-00386-COA.
    Court of Appeals of Mississippi.
    Sept. 19, 2006.

      Charles E. Miller, McComb, attorney for appellants.
    Wayne Smith, Liberty, attorney for ap-pellees.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On May 7, 2004, in the Wilkinson County Chancery Court, Brian Development Co., Inc., Louis Callahan, G H Equipment, LLC, David and Barbara Ber-thelot, Deborah James a/k/a Deborah James Pumphrey Rehnstrom, Gloria Breckwoldt, Randall Breckwoldt, Mitzi Breckwoldt, and Mabile and Edward Breckwoldt (hereinafter Brian Development) filed a complaint against Ed and Sarah Griffin, Isaac and Virginia Thomas, Margaret and Felix Louviere, Felix Louvi-ere, Jr., and Jacqueline Jordan (hereinafter Griffin). In their complaint, Brian Development. alleged that they adversely possessed and obtained by prescription a right of way across certain lands owned by Griffin. The piece of property in question is a gravel road which Brian Development has used over the years to gain access to their property from Ancil Cox Road. This gravel road, known as Griffin Lane, extends from Ancil Cox Road onto the property owned by Griffin.

¶ 2. After a trial on September 27 and 28, 2004, the chancellor determined that Brian Development had met their burden of proof in establishing an easement by prescription across the Griffin’s property via Griffin Lane. Aggrieved, Griffin now appeals asserting that the chancellor erred in ruling that Brian Development adversely possessed an easement across the land in question. Facts pertinent to the issue on appeal will be noted during the discussion.

STANDARD OF REVIEW

¶ 3. This Court has a limited standard of review in examining and considering the decisions of a chancellor. Ellison v. Meek, 820 So.2d 730, 734(¶ 11) (Miss.Ct.App.2002). ‘When reviewing a chancellor’s decision, we will accept a chancellor’s findings of fact as long as the evidence in the record reasonably supports those findings. In other words, we will not disturb the findings of a chancellor unless those findings are clearly erroneous or an erroneous legal standard was applied.” Peagler v. Measells, 743 So.2d 389, 390(¶ 6) (Miss.Ct.App.1999). “The chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility of witnesses and the weight of their testimony.” Ellison, 820 So.2d at 734(¶ 11). The standard of review for questions of law is de novo. Id.

DISCUSSION

I. DID THE CHANCELLOR ERR IN RULING THAT BRIAN DEVELOPMENT ADVERSELY POSSESSED THE LAND IN QUESTION?

¶ 4. Adverse possession is statutory in Mississippi. Mississippi Code Annotated Section 15-1-13 (Rev.2003) provides in pertinent part as follows:

(1)Ten (10) years’ actual adverse possession by any person claiming to be the owner by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to persons under the disability of minority or unsoundness of mind the right to sue within ten (10) years after the removal of such disability, as provided in Section 15-1-7. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than thirty-one (31) years.

¶ 5. To establish a claim of adverse possession or prescriptive easement, Brian Development must show by clear and convincing evidence that their possession was: “(1) under claim of ownership; (2)actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” West v. Brewer, 579 So.2d 1261, 1262 (Miss.1991) (quoting Stallings v. Bailey, 558 So.2d 858, 860 (Miss.1990)). Permission from the record title owner will make the use permissive and not adverse. Myers v. Blair, 611 So.2d 969, 971 (Miss.1992).

¶ 6. The chancellor found that Brian Development’s possession was under claim of ownership for the following reasons. Edna MeGraw Nettles testified that her father, from 1956 until they sold their land to Sid Brian in 1980, placed cattle gaps along the roadway, placed gravel upon the roadway, and kept the roadway in good shape. Another property owner who used Griffin Lane to access his land, Francis James, also placed gravel along Griffin Lane. At no time did anyone using Griffin Lane to access their property ask permission to use the road or to make improvements upon the road. Nettles also testified that the local school bus used Griffin Lane to pick her up for school. Furthermore, Nettles stated that there were other families on adjacent property who used Griffin Lane on a daily basis to access their property. From the record it is clear that there was no other access from Ancil Cox Road to Brian Development’s property besides Griffin Lane.

¶ 7. The chancellor also found the element of hostility was established by Brian Development. According to Moran v. Sims, 873 So.2d 1067, 1069(¶8) (Miss.Ct. App.2004), if the use of the easement is inconsistent with the title of the servient estate owner, the required elements of hostility are established. The servient estate in this case is the former Cage Estate property, which was subdivided by the Griffins. The chancellor found that the use of the roadway by Brian Development and their predecessors from 1956 until the use was interrupted on September 29, 2002, was inconsistent with the titles held by the Cage Estate and, later, the Griffins. On September 29, 2002, Sarah Griffin placed a chain across Griffin Lane.

¶ 8. The chancellor determined that Brian Development established that their possession was open, notorious and visible. The MeGraw family purchased the land in 1956 and their sole means for accessing their property was via Griffin Lane. The MeGraw family used the road until 1980 when they sold their land to Sid Brian, who already owned a tract of land adjacent to Griffin Lane. Sid Brian testified that he and his family had been using Griffin Lane to access their property from 1962 until September 2002, when the cable was placed across the road. There was no evidence that permission was granted to use Griffin Lane nor was there evidence that anyone objected to the use of Griffin Lane until September 2002.

¶ 9. The use of Griffin Lane by Brian Development was continuous and uninterrupted for well over the necessary ten years, beginning with the use of the road by the McGraw family in 1956.

¶ 10. As stated in Moran, “ ‘[exclusive’ use does not mean that no one else used the driveway. Exclusivity here means that the use was consistent with an exclusive claim to the right to use.” Id. at 1069(¶ 10). The evidence presented clearly established that Brian Development and their predecessors used Griffin Lane as the sole access to their property.

¶ 11. According to the record, there was no controversy over the use of Griffin Lane until September 2002 when Sarah Griffin placed a cable across the road. By that time, the ten years’ use had already expired.

¶ 12. We find that the requirements for a prescriptive easement across the Griffin’s property via Griffin Lane were proven. Thus, we affirm the chancellor’s decision.

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

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


author: CHANDLER, J.,

text:
    Kenneth Fredrick HIGDON a/k/a Kenny Higdon, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00941-COA.
    Court of Appeals of Mississippi.
    Sept. 26, 2006.

      Jack R. Jones, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for Appellee.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the court.

¶ 1. Kenneth Fredrick Higdon was indicted for touching a child less than sixteen years old. After a jury trial in the Circuit Court of DeSoto County, Higdon was found guilty of fondling. He was sentenced to serve ten years in the custody of the Mississippi Department of Corrections. Higdon appeals, alleging that the trial court erred in disallowing evidence concerning the whereabouts of the victim’s father, in denying jury instruction D-2, in allowing hearsay testimony, and in denying the motion for a directed verdict, for a judgment notwithstanding the verdict (JNOV), or for a new trial.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. C.F. is the mother of B.D., the victim. Higdon kept B.D. at his home on Sunday nights while C.F. was working. B.D. began complaining that she did not want to go to Higdon’s home. B.D. asked her mother not to go to work; B.D. told her that Higdon was patting her on the behind. Higdon admitted to C.F. that he had patted B.D. on the behind and agreed not to do it again. Later, B.D. told her mother that Higdon had exposed himself to her, asked her to touch him and asked her to take off her clothes. Higdon had also told B.D. about a magazine with naked women. B.D. later told her mother that she touched Higdon’s “private spot.” C.F. contacted the police.

¶ 4. Higdon was indicted in the Circuit Court of DeSoto County for touching a child less than sixteen years old. After a jury trial, Higdon was found guilty and sentenced to ten years in the custody of the Mississippi Department of Corrections.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN DISALLOWING EVIDENCE CONCERNING THE WHEREABOUTS OF THE VICTIM’S FATHER AND THE REASON THAT HE WAS INCARCERATED.

¶ 5. Higdon contends that the trial court erred in excluding evidence that B.D.’s father was in prison for child molestation. Higdon alleges that exclusion of the evidence was improper since a defense theory was that someone other than Hig-don may have committed the crime. The State argues that the evidence was not relevant because B.D.’s father had been in jail since B.D. was approximately eighteen months old and B.D. was six years old when the crime occurred.

¶ 6. The standard of review for the exclusion of evidence is abuse of discretion. Harrison v. McMillan, 828 So.2d 756, 765(27) (Miss.2002). If the Court finds an erroneous exclusion of evidence, the Court will reverse the ruling only if the error adversely affected a substantial right of a party. Gibson v. Wright, 870 So.2d 1250, 1258(28) (Miss.Ct.App.2004). Therefore, we must determine whether the court abused its discretion in excluding the evidence.

¶ 7. The only authority Higdon cites in support of his argument is Miskelley v. State, 480 So.2d 1104 (Miss.1985). Miskel-ley holds that “any evidence that is material and relevant, which has a bearing on the motives, bias, and interests of a witness and affects the credibility of that witness is admissible.” Id. at 1108. The fact that the victim’s father was in prison for child molestation was not relevant evidence. Mississippi Rules of Evidence 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” The evidence regarding the victim’s father did not affect the credibility of the victim. Although Higdon wanted to suggest that the victim’s father was responsible for committing the crime, Higdon’s theory was impossible because B.D. had not seen her father in over four years. Because the evidence regarding the victim’s father is of no consequence as to whether Higdon committed the crime, the evidence is not relevant. Therefore, the trial court did not abuse its discretion in excluding the evidence.

II. WHETHER THE TRIAL COURT ERRED IN DENYING JURY INSTRUCTION D-2.

¶ 8. Higdon contends that the trial court erred in denying jury instruction D-2 which instructed the jury to view B.D.’s testimony in light of the child’s age and understanding. Higdon contends that jury instruction D-2 is justified when a child witness contradicts previous statements. The State argues that the trial court did not err in denying the instruction because Mississippi law does not require the court to instruct the jury to view a child’s testimony in light of the child’s age and understanding.

¶ 9. Higdon contends that Burbank v. State, 800 So.2d 540 (Miss.Ct.App.2001) supports his position. The court in Burbank stated the jury is responsible for determining the credibility of witnesses. Id. at 545(12). The court stated that “[i]t is improper for a trial court to comment upon the weight or credibility of witnesses.” Id. The court held:

[a] child is not presumed to be dishonest and should be viewed as truthful as any other witness. It is not improper to reject an instruction telling the jury to receive with caution the testimony of a child of tender years. If the jury is to be instructed at all with respect to the testimony of the child, it should be told to view the testimony in light of the child’s age and understanding, not his veracity.

Id. at 545(13). Burbank clearly does not require the jury to be instructed regarding a child’s testimony. Therefore, the trial court did not err in refusing jury instruction D-2. This issue is without merit.

III. WHETHER THE TRIAL COURT ERRED IN ALLOWING TESTIMONY FROM TOMIKO MACKEY.

¶ 10. Prior to trial, the court overruled Higdon’s motion in limine to exclude testimony from Tomiko Mackey, a forensic examiner. Higdon alleges that the testimony was hearsay. Higdon’s only authority in support of his contention is the United States Supreme Court’s ruling in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

¶ 11. Crawford held that testimonial, out-of-court statements by witnesses are barred under the Confrontation Clause of the Sixth Amendment, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether the statements are deemed reliable by the court. Id. at 68, 124 S.Ct. 1354. The ruling in Cranford does not apply to the present case because Mackey was available to testify as a witness and Higdon had the opportunity to cross-examine Mackey. Therefore, this issue is without merit.

IV. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION FOR A DIRECTED VERDICT, A JNOV, OR, ALTERNATIVELY, A NEW TRIAL.

¶ 12. Higdon filed a motion for a directed verdict, a JNOV, or, alternatively, a new trial. The motions were denied by the trial court. A motion for a directed verdict and a motion for a JNOV both challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). When the sufficiency of the evidence is challenged on appeal, we “properly review[ ] the ruling on the last occasion the challenge was made in the trial court.” Id. Higdon last challenged the sufficiency of the evidence with his motion for a JNOV. On appeal of the denial of a motion for a JNOV, all evidence supporting the guilty verdict is accepted as true and the State must be given the benefit of all reasonable inferences that can be reasonably drawn from the evidence. Bell v. State, 910 So.2d 640, 646(16) (Miss.Ct.App.2005).

¶ 13. Higdon further contends that the verdict of the jury is against the overwhelming weight of the evidence. When this Court reviews an argument suggesting that the verdict was against the overwhelming weight of the evidence, we will reverse only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Collins v. State, 757 So.2d 335, 337(5) (Miss.Ct.App.2000).

¶ 14. Higdon contends that the testimony of the victim was substantially impeached. Higdon notes that B.D. was six years old at the time of the alleged incident. Higdon claims that B.D.’s testimony was the only evidence of guilt. The State notes that, although Higdon did not testify, Higdon’s statement came into evidence that he did not remember if he asked the victim to touch his penis. Therefore, the State contends, Higdon did not contradict B.D.’s version of the incident. Additionally, Mackey testified that B.D.’s behavior was consistent with someone who had been sexually abused.

¶ 15. We find no merit in Higdon’s contentions. The jury is the final arbiter of a witness’s credibility. Morgan v. State, 681 So.2d 82, 93 (Miss.1996). It is the jury’s responsibility to weigh the conflicting testimony. Williams v. State, 757 So.2d 953, 957(17) (Miss.1999). We find that Higdon’s allegation that the victim’s testimony was not corroborated is not consistent with the evidence. The evidence was sufficient to support the verdict and the verdict was not contrary to the overwhelming weight of the evidence. This issue is without merit.

¶ 16 THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF FONDLING AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS OF POST-RELEASE SUPERVISION, PURSUANT TO THE PROVISIONS OF SECTION 47-7-34 M.C.A. AS A REGISTERED SEX OFFENDER, PAY A FINE OF $1,000 AND $100 TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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


author: BARNES, J.,

text:
    Marshaun STEWART, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01403-COA.
    Court of Appeals of Mississippi.
    Sept. 26, 2006.

      Marshaun Stewart, Appellant, pro se.
    Office of the Attorney General by W. Daniel Hinchcliff, attorneys for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Marshaun Stewart was convicted in August 1983 of two charges of rape and one charge of burglary and was sentenced to a term of forty-five years in the custody of the Mississippi Department of Corrections. In March 2004, he filed a “Petition for Writ of Habeas Corpus” in Coahoma County Circuit Court, which the court treated as a motion for post-conviction relief and summarily dismissed. Stewart appeals from the order dismissing the petition.

¶2. On appeal, Stewart has raised the following issues:

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO CONDUCT A HEARING ON THE PETITION PRIOR TO SUMMARILY DISMISSING THE PETITION.
II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO DETERMINE WHETHER THE PETITIONER WENT BEFORE A CLASSIFICATION BOARD TO HEAR EVIDENCE BEFORE HE WAS DEMOTED IN EARN[ED] TIME ACCORDING TO STATUTORY PROCEDURES.
III. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO DETERMINE WHETHER THE CLASSIFICATION BOARD IS UNLAWFULLY HOLDING THE APPELLANT PAS[T] HIS EXPIRED SENTENCE DATE OF 6/16/05.

¶ 3. We find that the court correctly denied Stewart’s petition and affirm.

STANDARD OF REVIEW

¶4. This Court will not disturb the trial court’s factual findings, when reviewing a decision to deny a petition for post-conviction relief, unless they are found to be clearly erroneous; however, the applicable standard of review is de novo where questions of law are raised. Brown v. State, 731 So.2d 595, 598(¶6) (Miss.1999). “Furthermore, where the trial court summarily dismisses the post-conviction relief claim, it does not have an obligation to render factual findings and ‘this Court will assume that the issue was decided consistent with the judgment and ... will not be disturbed on appeal unless manifestly wrong or clearly erroneous.’ ” Culbert v. State, 800 So.2d 546, 550(119) (Miss.Ct.App.2001) (quoting Par Indus., Inc. v. Target Container Co., 708 So.2d 44, 47(¶ 4) (Miss.1998)).

DISCUSSION

¶ 5. Stewart’s basic contention is that he should have been released on the earliest conditional discharge date as shown on the sentence computation date sheet included as an exhibit to his petition. Mississippi Code Annotated section 47-5-138 provides for a conditional release date after the prisoner has served fifty percent of his sentence, but also provides that the “earned time” which would reduce the sentence can be forfeited. In this case, Stewart has forfeited much of his “earned time” by serious misconduct. This loss of earned time is shown on another exhibit to Stewart’s petition.

¶ 6. Also attached to Stewart’s petition is an order from the Circuit Court of Sunflower County, filed on October 31, 2002, in which the court found that earned time had not been unlawfully taken from Stewart. As such, Stewart’s appeal from his motion before the Coahoma County Circuit Court is procedurally barred as a second and subsequent filing under Mississippi Code Annotated section 99-39-23(6) (Supp.2005).

¶ 7. One of Stewart’s rape convictions and sentence was appealed to the Mississippi Supreme Court, which affirmed that conviction and sentence on March 27, 1985. Stewart v. State, 466 So.2d 906 (Miss.1985). Under Mississippi Code Annotated section 99-39-27 (Supp.2005), Stewart should have filed an application for leave to proceed in the trial court prior to filing for relief with the Coahoma County Circuit Court. There is no indication that this was done, and therefore Stewart should not have been allowed to proceed with his claims relating to that conviction and sentence.

¶ 8. In dismissing with prejudice Stewart’s motion, the circuit court also noted that under Mississippi Code Annotated section 99-39-5 (Supp.2005), a motion under post-conviction relief must be brought within three years after the appellant’s direct appeal or after the judgment of conviction or sentence. An exception is where “the prisoner claims that his sentence has expired or his probation, parole, or conditional release have been unlawfully revoked.” The circuit court found that Stewart’s motion did not have any merit or meet any criteria for exception to this time bar.

¶ 9. While Stewart does cite cases in his brief, none of these cases concern the applicability of Mississippi Code Annotated section 47-5-138 (Rev.2004). “The failure to cite relevant authority, or to make a connection between the authority cited and his case constitutes a procedural bar.” King v. State, 857 So.2d 702, 705 (Miss.2003). Even without Stewart’s misrepresentation of the facts, there is no case law cited which supports his position.

¶ 10. If Stewart’s claims are not otherwise barred, the assertions are without merit. Mississippi Code Annotated section 99-39-19 provides that an evidentiary hearing is not necessary unless the judge so determines. Stewart’s allegations alone are “insufficient to require the trial judge to grant an evidentiary hearing.” Campbell v. State, 611 So.2d 209, 210 (Miss.1992).

¶ 11. Contrary to Stewart’s second assignment of error, there is no requirement in Mississippi Code Annotated section 47-5-138 that there be an eviden-tiary hearing before a classification board prior to the loss of earned time. The statute allows the department to “promulgate rules and regulations to carry out an earned time allowance program based on the good conduct and performance of an inmate.” Also, under section (2), “[a]n inmate may forfeit all or part of his earned time allowance for a serious violation of the rules. No forfeiture of the earned time allowance shall be effective except upon approval of the commissioner or his designee, and forfeited earned time may not be restored.” In his brief, Stewart does not address any of the specific instances in which his earned time was forfeited or show that any evidentia-ry hearing would have been beneficial. The failure of the circuit court to address this issue was not error.

¶ 12. As previously noted, there is no evidence that the classification board or any one in the penitentiary system erred in its calculation of Stewart’s projected release date. As part of the record, there is a “Sentence Computation Record” from August 2003 which shows both earned time and court ordered loss of earned time and a possible discharge date of March 2, 2008, and a maximum discharge date of June 2028. The State would have the Court supplement the record with an “Inmate Time Sheet” from December 22, 2005, showing that the tentative discharge date is now February 25, 2008. Although the record is somewhat incomplete, the supplementation is not necessary to show that Stewart’s allegations are false.

CONCLUSION

¶ 13. Even if Stewart’s claims were not procedurally barred under various sections of the post-conviction relief statutes, his appeal would be affirmed as there is no merit to any of the issues raised. Stewart is being correctly held under the law, and the Mississippi Department of Corrections has correctly calculated Stewart’s sentence, including the loss of earned time. The decision of the circuit court dismissing Stewart’s motion is affirmed.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHO-MA COUNTY.

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


author: GRIFFIS, J.,

text:
    Demario WALKER, Appellant v. Mary McKENZIE, Marylin Payne, Johnny Glover, Corey Graham, Terry Watts, Charles Howard, and Marion County Board of Supervisors, Appellees.
    No. 2004-CP-02162-COA.
    Court of Appeals of Mississippi.
    Sept. 26, 2006.

      Demario Walker, Appellant, pro se.
    J. Lawson Hester, Paul H. Kimble, Jackson, attorneys for appellees.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Demario Walker commenced this lawsuit against defendants Mary McKenzie, Marilyn Payne, Johnny Glover, Corey Graham, Terry Watts, Charles Howard, and Marion County. Walker’s claims result from incidents that occurred during his imprisonment in the Marion-Walthall Correctional Facility. The circuit judge dismissed the case without prejudice. We affirm in part and reverse and remand in part.

FACTS

¶ 2. Walker is an inmate in the custody of the Mississippi Department of Corrections, where he currently serves the remainder of a ten year sentence. At the time of the incidents complained of, he was housed at the Marion-Walthall Correctional Facility (“MWCF”). McKenzie, Payne, Glover, and Graham were jail employees. Watts and Howard were fellow inmates.

¶ 3. On May 8, 2003, Walker filed a pro se complaint. Walker asserted separate claims against the defendants.

A. Walker alleged that Mary McKenzie was a registered nurse at MWCF. He claimed that McKenzie tried to kill him by an overdose of Dilantin. As a result, Walker claimed that he did not receive adequate medical care.

B. Walker alleged that Marilyn Payne, her position at MWCF was not identified, denied him access to legal materials, denied him access to call an attorney, and displayed racial discrimination against him.

C. Walker alleged that Johnny Glover, his position at MWCF was not identified, stole certain items of Walker’s personal property. Walker also alleged that Glover obstructed justice, denied Walker medical care after a sexual assault, denied him access to an attorney and forced him to answer questions.

D. Walker alleged that inmate Corey Graham committed assault and battery, racial discrimination, and a hate crime against Walker.

E. Walker alleged that inmate Terry Watts committed assault and battery, sexual harassment, and rape against him.

F. Walker alleged that inmate Charles Howard committed assault and battery and a hate crime against Walker.

G. Walker alleged that Marion County failed to provide reasonably safe and sanitary living conditions, to adequately train staff to respond to medical emergencies, and to neutralize physical altercations between inmates.

¶ 4. Walker asked for compensatory damages of $1,000,000 and punitive damages in an amount to be determined by the jury.

¶ 5. The court granted Walker permission to proceed in forma pauperis. Summonses were served on all defendants except for McKenzie and Watts. Walker requested an alias summons on Watts, but none was ever issued. Howard never answered the complaint. Graham filed a pro se answer, and subsequently, Graham, Payne, Glover and Marion County answered through counsel. Walker then filed his motion for default judgment against Payne, Glover, Graham, Howard, and Marion County. Counsel for Graham, Payne, Glover and Marion County filed their response, which alleged that their answer was timely filed. We pause here to observe that, based on the record, a default was proper against Howard but not against the other defendants.

¶ 6. The case was set for trial on July 7, 2003. On July 1, Walker purportedly signed his witness list and requested trial subpoenas to be served on eighteen witnesses. However, Walker did not appear at trial, because he was still incarcerated. On July 9, he signed a motion to reset trial, which was filed on July 18. Walker’s motion stated that he could not appear of his own free will because he was still incarcerated. He requested to be present at trial.

¶ 7. On August 13, Walker moved for appointment of counsel pursuant to 28 U.S.C.1915(d) and 18 U.S.C. 3006A(g). By order dated September 12, the circuit judge denied the motion.

¶ 8. On September 22, the circuit clerk notified Walker and counsel of record that the case was set for trial on October 6, 2003. The next pleading is a notice, dated December 22, where the circuit clerk notified Walker and counsel of record that the case was set for trial on January 6, 2004. Again, the next pleading is a notice, dated March 24, 2004, in which the circuit clerk notified Walker and counsel of record that the case was set for trial on April 6, 2004.

¶ 9. On April 14, 2004, Walker filed a motion to compel a response to his motion for default. Counsel for the defendants responded. The next pleading is a notice, dated June 23, in which the circuit clerk notified Walker and counsel of record that the case was set for trial on July 6, 2004. Yet again, the next pleading is a notice, dated July 7, in which the circuit clerk notified Walker and counsel of record that the case was set for trial on October 12, 2004.

¶ 10. By pleading signed on June 30, 2004 and filed on July 6, Walker filed a sworn pleading that he identified as “Joint Motions to Dismiss Certain Defendants and for Default Judgment.” In the motion, Walker stated:

I.
Plaintiff can not be present at trial to present his case due to incar[e]eration and said Plaintiff feel[s] that these defendants should be dismissed without prejudice until such time [as] he is actively able to pursue [this] case or until [the] statute of limitations [s] runs out.
II.
As for Defendants Terry Watts and Charles Howard they have failed to answer and respond to the complaint [and] failed to defend in said case, requiring default judgment.
Wherefore Plaintiff prays [that the] Court dismiss all Defendants except Terry Watts and Charles Howard [and] grant default judgment as to the two remaining Inmate Defendants.

¶ 11. On October 13, 2004, the circuit court executed an “Order of Dismissal With Prejudice” but struck through the language “with prejudice” that was contained in the order. The order noted that the trial was scheduled for October 12, 2004, Walker failed to appear, and the defendants moved for dismissal. From this order, Walker appeals.

STANDARD OF REVIEW

¶ 12. We review an order of dismissal for failure to prosecute for an abuse of discretion. Miss. Dep’t of Human Servs. v. Guidry, 830 So.2d 628, 632(¶ 13) (Miss.2002).

ANALYSIS

¶ 13. Walker’s appeal presents one issue — Whether the court erred in dismissing the complaint for a failure to prosecute and failure to appear, knowing that the plaintiff was incarcerated and unable to attend the trial without a court order directing his appearance. He argues that his failure to appear at trial was due to no fault of his own, since he was incarcerated. He claims that this fact was obvious to the trial court and counsel. Walker asserts that the circuit judge ignored his motions. Walker’s legal authority is rather interesting. He argues:

[p]ursuant to the 14th Amend[ment] of the U.S. Constitution and [the] 14th Amend[ment] of the Miss. Constitution] this denied the Plaintiff due process of law and access to the Court.... Furthermore the Plaintiff was entitled to notice before the court dismissed his case for a failure to prosecute or appear. Smith-Bey v. Cripe, 852 F.2d at 594.

His brief does not mention or address the fact that he filed a motion to dismiss.

¶ 14. The appellees argue that the court set the case for trial several times, gave due notice to Walker, and he failed to appear and prosecute his claim. Thus, the appellees argue that dismissal was proper. They claim that Walker could have had a representative appear on his behalf, had the case heard telephonically, postponed the trial until his release from incarceration, asked the court for another procedure to have the claims heard, or bring the case in federal court. They argue that the essence of Walker’s claim is that the State must bear the expense of transporting inmates to court whenever they file a claim, regardless of whether it has merit.

¶ 15. The appellees cite us to four cases from other states. In Brown v. State, 781 N.E.2d 773, 777 (Ind.App.2003), the court dismissed the inmate’s claim that his property was lost due to the actions of a governmental entity because of the inmate’s failure to appear at trial. The court found no requirement that the State transport an inmate who is involved in a civil claim. Id. at 776. The court found no abuse of discretion but remanded the claim to require a dismissal without prejudice. Id. at 777. Here, Walker’s claims were dismissed without prejudice.

¶ 16. In Haun v. Osterman, 48 S.W.3d 108, 109 (Mo.Ct.App.2001), the trial court entered judgment against an incarcerated defendant who did not appear at trial. The court reversed the trial court and concluded that the proper action was to have dismissed the case without prejudice. Id. at 110.

¶ 17. In Bonner v. Williams, No. 14-96-00354-CV, 1 (Tex.Ct.App.1996), the trial court dismissed an inmate’s claim against jail medical personnel, alleging lack of adequate medical care, because the inmate failed to appear at trial. The inmate requested permission that he be allowed to appear at trial. Id. The court upheld the dismissal and concluded that “[t]he mere fact that [the plaintiff] is incarcerated or acting pro se does not accord him special treatment or otherwise excuse him from prosecuting his case with due diligence.” Id. at 2 (citing Brewer v. Taylor, 737 S.W.2d 421, 424 (Tex.Ct.App.1987)).

¶ 18. In Proctor v. Calahan, 663 So.2d 110, 111 (La.Ct.App.1995), the trial court dismissed the case when the incarcerated defendant did not appear at trial. The plaintiff appealed on the ground that the trial court abused its discretion and should have ordered that he be deposed or that the trial be held at the correctional facility. Id. The court held that the fact that the inmate did not seek a continuance was sufficient to dismiss his claim for lack of prosecution. Id. at 112.

¶ 19. We are of the opinion that dismissal without prejudice was proper under the circumstances. Our primary reason is that the circuit court simply granted the relief that Walker himself requested. In his sworn “Joint Motions to Dismiss Certain Defendants and for Default Judgment,” Walker requested the dismissal of all defendants except Terry Watts and Charles Howard. We also agree with our sister states, that there was no abuse of discretion by the trial court dismissing this case for failure to prosecute. For these reasons, we affirm the trial court’s order of dismissal as it relates to defendants Mary McKenzie, Corey Graham, Terry Watts, Johnny Glover, Marylin Payne, and the Marion County Board of Supervisors.

¶ 20. However, the record indicates that defendant Charles Howard was duly served with process, failed to enter an appearance or otherwise defend this action, and Walker properly filed a motion for default judgment as to the claims against Howard. The record does not indicate that Howard, or any person on his behalf, appeared at the scheduled trial and moved the court for dismissal of the claims against him. Accordingly, we are of the opinion that the order of dismissal as it relates to Charles Howard must be reversed and remanded to allow further proceedings against Charles Howard.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

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

      . The witness list is signed by Walker and dated July 1. It is not stamped "filed” by the clerk. Instead, it is included in the record with Walker's request for subpoenas for witnesses.

      . Appellees' brief informed us Walker brought these claims in federal court, in Walker v. Glover, Civil Action No. 2:02CV632. A final judgment on the jury's verdict was entered against Walker on June 17, 2005. Indeed, Walker has filed sixteen federal lawsuits since his incarceration.


text:
    Otis BONDS, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00853-COA.
    Court of Appeals of Mississippi.
    Sept. 26, 2006.

      William E. Goodwin, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Otis Bonds was convicted in the Circuit Court of Pike County of shooting into an automobile and of possession of a firearm by a felon. Tried as a habitual offender, Bonds was sentenced to five years’ imprisonment for the shooting and three years’ imprisonment for the possession of a firearm, with the sentences to run consecutively. He was also ordered to pay full restitution in an unspecified amount, court-appointed attorney fees in the amount of $500, and court costs. Bonds makes a single argument on appeal; he claims that the trial court erred by not dismissing the charges because he was denied his right to a speedy trial. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. As Bonds’s appeal is directed not at his guilt or innocence of the crimes charged, but instead on whether he was brought to trial in a timely manner, our recitation of the facts focuses not upon the circumstances of the crimes but upon the events occurring thereafter. On April 26, 2002, Bonds was observed shooting into an automobile outside a residence in Summit, Mississippi. He was arrested on August 15, 2002, and released on bond less than two weeks later.

¶ 3. On July 9, 2003, Bonds was indicted on three charges: shooting into a motor vehicle in violation of Mississippi Code Annotated section 97-25-47 (Rev.2000); shooting into an occupied dwelling in violation of Mississippi Code Annotated section 97-37-29 (Rev.2000); and possession of a firearm by a felon contrary to Mississippi Code Annotated section 97-37-5 (Rev. 2000). The indictment also alleged that Bonds had been twice convicted of felonies and thus was a habitual offender. Bonds waived arraignment on August 4, 2003.

¶ 4. The district attorney moved the court to revoke the bond on October 1, 2003 due to Bonds’s arrest and indictment on additional charges of aggravated assault and possession of a firearm by a convicted felon; the circuit judge signed the order revoking the bond on October 27, 2003. Bonds immediately filed a motion to dismiss for lack of speedy trial on October 30, 2003. A hearing was held on Bonds’s motion on December 8, 2003. The circuit judge held that the length of the delay in bringing Bonds to trial was presumptively prejudicial since it was longer than eight months; however, the judge found that the cause of the delay, the arresting officer’s deployment to Iraq, was reasonable and that the City of Summit had submitted the case to the grand jury in “due course.”

¶ 5. Bonds filed a second motion to dismiss for lack of a speedy trial on February 26, 2004, and a hearing on the motion was held March 15, 2004. Instead of ruling on the motion, the circuit judge set the case for trial two days later. Making no objection to this resolution, Bonds was tried on March 17, 2004, 580 days after his arrest and 226 days after his waiver of indictment. He was convicted of shooting into an automobile and possession of a firearm by a felon. An order of nolle prosequi was entered to the charge of shooting into an occupied dwelling.

ANALYSIS

II6. A defendant’s successful speedy trial challenge results in dismissal of the charge against him. Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Smith v. State, 550 So.2d 406, 409 (Miss.1989). Bonds contends that the delay between the time of his arrest, August 15, 2002, to his subsequent trial on March 17, 2004 (580 days) violated his speedy trial rights. Bonds argues that he twice asserted his speedy trial 'right and was prejudiced as a result of the delay in conducting his trial in that he lost his job at Wal-Mart as a result of being unduly incarcerated. Because of the actions or inactions of the State regarding his speedy trial rights, Bonds asks that we render his conviction. The State counters that there was “good cause” for the delay in bringing Bonds to trial because the arresting officer, Summit Police Officer David Harris, was called to active duty in Iraq in October of 2002, and that the State tried Bonds in “due course.”

STANDARD OF REVIEW

¶7. Review of a speedy trial claim involves a question of fact: whether the trial delay arose from good cause. Flora v. State, 925 So.2d 797, 814(¶ 58) (Miss.2006) (citing DeLoach v. State, 722 So.2d 512, 516 (¶ 12) (Miss.1998)). We will uphold the trial court’s finding of good cause if that decision is supported by substantial, credible evidence. Id. (citing Folk v. State, 576 So.2d 1243, 1247 (Miss.1991)). However, if no probative evidence supports the trial court’s findings, we must reverse the decision and dismiss the charge. Ross v. State, 605 So.2d 17, 21 (Miss.1992) (citing Strunk, 412 U.S. at 440, 93 S.Ct. 2260). The State bears the burden of proving good cause for the speedy trial delay, and thus bears the risk of non-persuasion. Flores v. State, 574 So.2d 1314, 1318 (Miss.1990); Nations v. State, 481 So.2d 760, 761 (Miss.1985). Good cause is a factual finding which is not different from any other finding of fact and thus, an appellate court should not disturb the finding when the finding is based upon substantial evidence identified from the record. McGhee v. State, 657 So.2d 799, 803 (Miss.1995).

A. The Constitutional Rights to a Speedy Trial

¶ 8. The Sixth Amendment to the United States Constitution entitles Bonds to a “speedy and public trial.” See United States Const, amend. VI. The Supreme Court has observed that “the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage.” Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The federal constitutional right is applied to the states through the Fourteenth Amendment. Id. at 222-23, 87 S.Ct. 988. Additionally, Article 3, section 26 of the Mississippi Constitution of 1890 guarantees a criminal defendant “a speedy and public trial.” This right, as with the federal constitutional right, attaches when a person has been accused, either by way of arrest, indictment or information. Stark v. State, 911 So.2d 447, 450(¶ 6) (Miss.2005). The Supreme Court has observed that the speedy trial right serves a threefold purpose: (1) to protect the accused against oppressive pretrial imprisonment; (2) to relieve the accused of the anxiety and public suspicion due to an unresolved criminal charge; and (3) to protect against the risk that evidence will be lost or memories dimmed by the passage of time thus impairing a defendant’s ability to defend himself or herself. United States v. Loud Hawk, 474 U.S. 302, 312, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (quoting United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966)). Thus, the protection given by the right to a speedy trial is against arbitrary and oppressive delays in prosecution.

¶ 9. In Barker v. Wingo, 407 U.S. 514, 529-34, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) the Supreme Court announced a four-part balancing test for determining whether a defendant’s right to speedy trial has been violated. The four factors are (1) length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) prejudice to the defendant. Id. at 530, 92 S.Ct. 2182. The Mississippi Supreme Court has adopted the Barker analysis as applicable to the state constitutional speedy trial right; accordingly, we will consider the constitutional claims together. See Skaggs v. State, 676 So.2d 897, 900 (Miss.1996). For the purpose of the analysis, the conduct of both parties is weighed, and no one factor is outcome determinative. Fleming v. State, 604 So.2d 280, 299 (Miss.1992). The weight which a court gives to each factor depends on the facts of the particular case. Id.

The Barker Analysis

(1) Length of the Delay

¶ 10. This first factor has been called a triggering mechanism because until there is some delay which is presumptively prejudicial, there is no need for an inquiry into the other balancing test factors. Barker, 407 U.S. at 531-32, 92 S.Ct. 2182. Thus there must first be a finding of a “presumptively prejudicial” delay or our inquiry on the issue ends. Id. This analysis is largely a function of mathematics and calendar, with the triggering date in the instant case being the date of the defendant’s arrest. An eight-month delay between arrest and trial has been found to be presumptively prejudicial. Smith v. State, 550 So.2d 406, 408 (Miss.1989). Bonds was arrested on August 15, 2002, and stood trial on March 17, 2005 — 580 days after arrest. Thus, we find that there was presumptive prejudice and further evaluation of his constitutional rights is required.

(2) Reason for Delay

¶ 11. “Once there is a finding that the delay is presumptively prejudicial, the burden shifts to the prosecution to produce evidence justifying the delay and to persuade the trier of fact of the legitimacy of these reasons.” DeLoach v. State, 722 So.2d 512, 517 (¶ 17) (Miss.1998). Thus, we must determine the reason for the delay and examine the unique circumstances of each case. Stark v. State, 911 So.2d 447, 450(¶ 11) (Miss.2005). The Barker court said that on this factor different weights should be given to different reasons for delay. Barker, 407 U.S. at 531, 92 S.Ct. 2182. A deliberate attempt by the State to delay the trial in order to hamper the defense should be weighted heavily against the State. Id. However, the Supreme Court said that a more neutral reason for the delay such as negligence or overcrowded dockets should be weighed less heavily but should, nevertheless, be considered because “the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Id. The burden calls on the State to articulate the reason for the delay by showing either that the delay was caused by the defendant or was caused for a good cause. Stark, 911 So.2d at 450 (quoting Hersick v. State, 904 So.2d 116, 121(¶ 7) (Miss.2005)).

¶ 12. We note at the outset of our analysis of this factor that there were two hearings on separate motions to dismiss for lack of a speedy trial filed by Bonds. The first hearing was held on December 8, 2008, 480 days after Bonds’s arrest, and the second hearing was held on March 15, 2004, 578 days after his arrest.

¶ 13. At the first hearing, the court found that the State had shown good cause for the delay as the State argued that the reason for the delay was because the officer who made the case was deployed to Iraq after the arrest. The court said that it was “rational” to expect the officer who made the case to be the officer who would present it to the grand jury. Further the court determined the City of Summit presented the case in “due course.” The court made its finding despite noting that the case had ultimately been presented without the presence of the arresting officer.

¶ 14. Bonds asserts that this factor should weigh heavily against the State, as he claims the record is devoid of a single instance where he did anything to prevent the State from bringing him to trial. The State cites Hersick, 904 So.2d at 123(¶ 14), for its justification of the delay as the ease officer, Officer Harris, was deployed overseas. In Hersick the trial court found good cause for the delay in bringing the defendant to trial where the arresting officer was deployed overseas, and the Mississippi Supreme Court affirmed. While the State could have and did ultimately bring the case to trial without Officer Harris, we find that there was substantial evidence to support the trial court’s finding that the case was brought in due course.

(3) The Defendant’s Responsibility to Assert His Right

¶ 15. The accused’s assertion of or failure to assert the right to a speedy trial is one of the factors to be considered in an inquiry on whether the speedy trial right was denied. Although a defendant does not have an obligation to bring himself to trial, he will earn “points ... on his side of the ledger” when he has made a demand for a speedy trial. Stevens v. State, 808 So.2d 908, 917(¶ 22) (Miss.2002). Bonds claims that he asserted his right to a speedy trial by filing two motions to dismiss five months apart. After his first motion to dismiss was overruled, he was not tried and therefore filed another motion to dismiss for failure to provide a speedy trial on February 26, 2004. After a hearing on this motion on March 15, 2004, the court did not rule on the motion, but instead set the case for trial two days later on March 17, 2004. The State cites Summers v. State, 914 So.2d 245, 253 (¶ 20) (Miss.Ct.App.2005) for the proposition that a demand for dismissal for violation of the right to a speedy trial is not the same as a demand for a speedy trial. The State is correct. In Perry v. State, 637 So.2d 871, 875 (Miss.1994) the Mississippi Supreme Court held that a motion for dismissal for violation of the speedy trial right is not the equivalent of a demand for a speedy trial. The court stated that the motion to dismiss seeks discharge of the defendant, and not a speedy trial for him. We are not allowed therefore to count in Bonds’s favor his two pre-trial motions seeking dismissal of the charges. We find that Bonds did not request a speedy trial but instead twice asked that the charges be dismissed against him because of an alleged lack of speedy trial. Thus, this factor weighs in favor of the State.

(4) Prejudice to a Defendant

¶ 16. The Barker court instructed that prejudice to the defendant should be assessed in light of the following interests: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern by the accused due to an unresolved criminal charge; and (3) to limit the possibility that the defense will be impaired. United States v. Loud Hawk, 474 U.S. 302, 312, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (quoting United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966)). The Court said prejudice should be examined in light of these interests of a defendant with the last interest, possible prejudice to the defendant, being the most important Barker, 407 U.S. at 532, 92 S.Ct. 2182.

The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. Imposing those consequences on anyone who has not yet been convicted is serious.... [E]ven if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion and often hostility.

Id. at 532-33, 92 S.Ct. 2182.

¶ 17. Prejudice to a defendant may manifest itself in two ways. First a defendant may suffer prejudice because of the restraints to his liberty, whether by “loss of his physical freedom, loss of a job, loss of friends or family, damage to his reputation, or anxiety.” Stevens v. State, 808 So.2d 908, 917(¶ 23) (Miss.2000) (citing Duplantis v. State, 708 So.2d 1327, 1336 (Miss.1998)). Secondly, the delay may impair the accused’s defense. Id.

¶ 18. Bonds argues prejudice by alleging that he was incarcerated from December 2002 until the trial in March of 2004 and that as a result of the incarceration without a speedy trial he lost his job at Wal-Mart. The record reflects, however, that Bonds was released on bond from August 26, 2002 until October 27, 2003 when the bond was revoked due to a subsequent indictment.

¶ 19. The State argues that there was no proof of harm regarding the third and most important interest, the possibility of impairment of his defense. The State correctly points out that incarceration alone is not sufficient to establish Barker prejudice. As to the most important factor, prejudice to his defense, Bonds has offered no evidence of prejudice, such as lost evidence or unavailability of witnesses as to how his defense was impaired. Thus, we cannot find that Bonds was prejudiced by the delay.

¶ 20. We note that Bonds never received a ruling from the trial court on his second motion for speedy trial. Instead the trial court ordered, without objection, Bonds to be tried two days later. The oft-cited rule remains that it is the duty of the movant to bring his motion to the attention of the trial court and obtain a ruling thereon, and his failure to do so constitutes a waiver of the motion. Anthony v. State, 843 So.2d 51, 54(¶ 11) (Miss.2002); Biggs v. State, 741 So.2d 318, 327(¶ 35) (Miss.Ct.App.1999). Bonds brought his motion for hearing, but instead of obtaining a ruling on the motion, he made no objection to the trial court’s resolution of the issue: setting of his trial two days later. Therefore, we find that Bonds waived his second motion.

¶ 21. When we apply the Barker factors to Bonds’s case, we find that even though he incurred a delay in having his charge advanced to trial, the delay was not of constitutional dimensions. We cannot say that Bonds was denied his right to a speedy trial.

B. The Statutory Right

¶22. In addition to the constitutional rights to speedy trial, Mississippi, by statute, specifically requires that a defendant be brought to trial within 270 days after arraignment “[ujnless good cause [can] be shown, and a continuance duly granted by the court.” Miss.Code Ann. § 99-17-1 (Rev.2000). In the instant case, there were only 226 days from Bonds’s arraignment to his trial; accordingly, his statutory right to a speedy trial was not violated.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF COUNT I, SHOOTING INTO AN AUTOMOBILE AND SENTENCE OF FIVE YEARS; COUNT III, POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER, WITH SENTENCE IN COUNT III TO RUN CONSECUTIVELY TO SENTENCE IN COUNT I AND CONCURRENTLY WITH SENTENCE IMPOSED IN CAUSE NO. 03-271-KA AND PAY FULL RESTITUTION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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


author: ROBERTS, J.,

text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellant v. Benny WOODS, Appellee.
    No. 2005-CC-01701-COA.
    Court of Appeals of Mississippi.
    Sept. 26, 2006.

      Albert B. White, Madison, attorney for appellant.
    Benny Woods, Appellee, pro se.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

FACTS

¶ 1. Benny Woods was employed as a bag stacker by Hood Packaging Company (HPC) from June 18, 2001, to December 15, 2004. In April 2004, Woods injured his wrist while working at HPC. Following his injury, Woods visited a physician, Dr. Thomas, and was placed on “light duty” status. After working “light duty” for several weeks and visiting two more doctors, Woods was diagnosed with carpal tunnel syndrome and began therapy for same. At this point HPC informed Woods that no more light duty jobs were available and placed him on medical leave on May 19, 2004. Woods then began receiving workers’ compensation benefits based on short term disability.

¶2. Gerald Garrity, HPC’s Human Resource Manager, testified that it was HPC’s policy that employees on medical leaves of absence keep in touch with HPC on at least a monthly, but preferably weekly, basis to keep it updated on the employee’s condition. Garrity went on to state that Woods knew of this policy from an orientation Woods attended when he began working for HPC, as well as other, similar discussions. In spite of this policy, from June 2004 to December 2004, HPC did not hear from Woods, and on December 15, 2004, HPC was advised by its insurance carrier that Woods would no longer be covered as he failed to follow through with his doctor’s recommended treatment.

¶ 3. Woods’s treatment consisted mostly of physical therapy and injections. When that failed to alleviate Woods’s ailment by an appreciable amount, Dr. Aubrey Lucas suggested surgery that had a 50/50 percent chance at giving Woods any significant improvement, and added that surgery was the only remaining option. Discouraged by the chance of success accompanying the surgery, Woods decided to think about it. There was conflicting testimony concerning whether Woods completed the recommended physical therapy, but no evidence was submitted by either of the parties concerning Woods’s alleged absence. Woods stated he attended every therapy session and was scheduled to go in for additional treatment in December 2004. In any event, as stated supra, HPC’s insurance carrier ceased coverage of Woods on December 15, 2004. Based on that date, the day in which the insurance company stopped Woods’s coverage, Garrity removed Woods from HPC’s payroll and sent Woods a letter notifying him of his discharge. At no point in time after his injury was Woods ever deemed fit for full duty.

¶4. After being discharged by his former employer, Woods filed his initial claim for unemployment benefits under the Mississippi Department of Employment Security (MDES) law on December 19, 2004. The claim was denied on January 20, 2005, as a MDES claims examiner disqualified Woods for benefits pursuant to Mississippi Code Annotated § 71-5-513 A(l)(b) (Rev. 2000), which states, in pertinent part, that an individual shall be disqualified for benefits if discharged for misconduct connected with his work. Woods subsequently filed a notice of appeal, and a telephone hearing was held on March 22, 2005. The MDES appeals referee affirmed the examiner’s decision to disqualify Woods. Woods then filed his notice of appeal from this decision to the Board of Review. On April 21, 2005, the Board of Review affirmed the decision of the referee. Following that decision, Woods appealed to the Circuit Court of Yazoo County. As neither Woods nor the Mississippi Employment Security Commission (MESC) filed a brief with the lower court, Judge Lewis considered only the record on appeal and reversed the decision of the MDES Board of Review. Aggrieved by this, MESC now appeals, raising the following issues which we quote verbatim:

1. Whether the Employer, Hood Packaging Company, proved by substantial evidence that Claimant, Benny Woods, committed disqualifying misconduct pursuant to M.C.A., Section 71-5-513(A)(1)(b) (1972, as amended), by violating the Employer’s policy requiring that he periodically contact the Employer during his medical leave, and by refusing to follow his doctor’s recommended medical treatment?
2. Whether the Board of Review’s decision disqualifying Benny Woods for the reasons stated above was supported by substantial evidence, pursuant to M.C.A. Section 71-5-513(A)(l)(b) (1972, as amended)?
3. Whether the Circuit Court improperly substituted its opinion for that of the Board of Review, and abused its discretion, by finding that Benny Woods’s failure to contact the Employer for five months during his medical leave, and failure to follow recommended medical treatment, did not rise to the level of misconduct?
4. Whether the Circuit Court abused its discretion by reversing the Board of Review’s decision, which found that the Claimant, Benny Woods, committed disqualifying misconduct by refusing to follow recommended medical treatment that should have returned him to full duty work, and by failing to contact the Employer for five months during his medical leave?

STANDARD OF REVIEW

¶ 5. Our standard of review of an administrative agency’s findings and decisions being limited, we can only disturb its conclusions if the agency’s order (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope or power granted to the agency, or (4) violates the claimant’s constitutional rights. Sprouse v. Miss. Employment Sec. Comm’n, 639 So.2d 901, 902 (Miss.1994). There exists a rebuttable presumption that the agency’s decision is correct and the burden of proving otherwise rests with the claimant. Allen v. Miss. Employment Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994) (citing United Cement Co. v. Safe Air for the Env’t, Inc., 558 So.2d 840, 842 (Miss.1990)).

ANALYSIS

¶ 6. We begin by noting that Woods failed to supply this Court with a brief in opposition to the ME SC’s brief. In W.T. Raleigh Co. v. Armstrong, 165 Miss. 380, 140 So. 527 (1932), the supreme court recognized that there is no uniform rule or procedure to guide the reviewing court when an appellee fails to file a brief. When faced with this situation, the supreme court concluded that the two available alternatives were:

(1) When the record is complicated or of large volume, and the case has been thoroughly briefed by appellant with a clear statement of the facts, and with applicable citations of authorities, so that the brief makes out an apparent case of error, we will not regard ourselves as obliged to look to the record or to search through it to find something by which to avoid the force of appellant’s presentation, but will accept appellant’s brief as confessed and will reverse. Or
(2) when the record is in such condition that we can conveniently examine it, and when upon such an examination we can readily perceive a sound and unmistakable basis or ground upon which the judgment may be safely affirmed, we will take that course and affirm, thereby to that extent disregarding the default of appellee. But when, taking into view the argument presented by appellant, the basis or grounds of the judgment, and the facts in support of it are not apparent, or are not such that the court could with entire confidence and safety proceed to affirmance, the judgment will be reversed without prejudice.

Armstrong, 140 So. at 527-28. Additionally, this Court has identified that claimants similarly situated as Woods face an up hill climb in their quest for unemployment benefits, and their ability to hire an attorney as a guide up the procedural mountain decreases the longer they go without said benefits. As Judge McMillin stated in Miss. Employment Sec. Comm’n v. Ratcliff, 754 So.2d 595(¶ 8) (Miss.Ct.App.2000),

Because entitlement to unemployment compensation is a benefit that could reasonably be expected to increase in importance to the applicant in inverse proportion to that person’s ability to retain legal counsel to pursue a contested claim through multiple statutorily-mandated reviews, we decline to decide Ratcliffs appeal on a procedural bar and, instead, undertake a review of the record before the Commission to determine whether we agree that the Commission erred.

As the record in this appeal is such that we can conveniently examine it, we will proceed with discussion on the merits of the case in accordance with the applicable standard of review.

I. Was the Board of Review’s findings supported by substantial evidence?

¶ 7. MESC’s first two arguments can be restated as whether there was substantial evidence that Woods failed to call HPC in violation of its policy, and whether Woods failed to follow his doctor’s recommended treatment. HPC’s burden of proof in this regard is clear. At an administrative hearing, the employer carries the burden to prove by substantial, clear, and convincing evidence that the employee committed misconduct. Miss. Employment Sec. Comm’n v. Flanagan, 585 So.2d 783, 785 (Miss.1991). “Substantial evidence” has been defined as evidence “which is relevant and capable of supporting a reasonable conclusion.” Gilbreath v. Miss. Employment Sec. Comm’n, 910 So.2d 682(¶ 13) (Miss.Ct.App.2005) (citing Hooks v. George County, Miss., 748 So.2d 678, 680(¶ 10) (Miss.1999)). “Substantial evidence” is not uncorroborated hearsay. Miss. Employment Sec. Comm’n v. Flanagan, 585 So.2d 783, 785 (Miss.1991).

¶ 8. The record indicates that Woods did not contact HPC from June 2004 to December 2004, because when he did call he was told that they did not have any light duty work available. His reasons for failing to call notwithstanding, this was a violation of HPC’s policy, as detailed in the appeals referee’s findings of fact and adopted by the Board of Review, and we find that substantial evidence exists in the record to support such a finding as Woods admitted to it. The question remains whether or not this can be deemed “misconduct” so as to exclude Woods from his entitlement to unemployment benefits.

¶ 9. Next we turn to the issue of whether there was substantial evidence that Woods “failed to follow up on the doctor’s recommended treatments,” as found by the appeals referee. We cannot answer this in the affirmative. At the hearing Garrity testified that “my understanding is, I don’t know this for sure, but my understanding was at that point that if he did go in for treatments, he never completed it all, if he went at all.”' Garrity claims that he was informed of Woods’s alleged absences from HPC’s insurance carrier. As the only evidence in the record that alleges Woods stopped going to his therapy sessions, Garrity’s testimony is found wanting as he states that he only believes that Woods stopped going but-was not sure, and his testimony at trial amounted to uncorroborated hearsay. In direct contradiction to this testimony, Woods testified that he attended all appointments the insurance company set for him. In addition, the record is devoid of any documentation or other testimony showing that Woods missed even a single appointment. As to evidence of 'Woods’s alleged absence from scheduled treatments, we find that HPC failed to meets its initial burden of proving said absence by substantial, clear and convincing evidence. As Judge Lewis pointed out in her opinion reversing the Board of Review’s decision, “the evidence does not show that Woods discontinued therapy or treatments but simply elected to think about the last option, surgery.”

II. Was Woods’s failure to contact HPC for five months “misconduct?”

¶ 10. MDES’s final two issues center on the question of whether Woods’s actions constituted “misconduct.” Having made our initial finding that the record lacks substantial evidence that Woods failed to attend or complete his therapy appointments, the only remaining action for consideration as misconduct is his failure to call HPC during his leave of absence.

¶ 11. Mississippi Code Annotated § 71-5-513 A(l)(b) (Rev.2000) states that an individual shall be disqualified for benefits if he is discharged for misconduct connected with his work. The supreme court has clarified “misconduct” as used in Mississippi Code Annotated Section 71-5-513 A(l)(b) as “conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee.” Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982). Furthermore, the Mississippi Employment Security Commission Administrative Manual, Part V, Paragraph 1720, states, “An employee shall not be found guilty of misconduct for violation of a rule unless: (1) the employee knew or should have known of the rule; (2) the rule was lawful and reasonably related to the job environment and job performance; and (3) the rule is fairly and consistently enforced.”

¶ 12. There is no question that Woods knew of the policy or that the policy was lawful and reasonably related to the work environment and job performance. The lower court noted as such. There is a question as to whether it was fairly and consistently enforced. Even if Woods’s failure to call HPC for over five months could be considered misconduct as it is defined in Wheeler, which we decline to speak to, the evidence shows that HPC’s policy was not consistently enforced as to Woods. The record shows that HPC’s policy was for any employee who was on a medical leave of absence to call HPC at least once a month, but preferably on a weekly basis, to check in and update HPC on the employee’s current condition. It is obvious from the record that Woods failed to abide by this policy. What is equally obvious from the record is that HPC failed to enforce this policy until they were informed by their insurance carrier that Woods was no longer covered and payment for Woods’s treatments would be terminated. At no time during the five month absence of communication between HPC and Woods did HPC express any concern regarding either Woods’s failure to call or enforcement of its policy. As it is the employer that carries the burden of proof to show by clear, convincing, and substantial evidence that the employee’s actions amounted to misconduct, and an employee shall not be found guilty of misconduct for violation of a rule unless said rule is fairly and consistently applied, HPC carried the burden to show that its policy was fairly and consistently applied. As the record shows, that burden was not met. The only evidence offered by HPC concerning the application of its policy showed that it was not consistently or fairly enforced. As such, Woods’s violation of the policy cannot be deemed “misconduct.” Consequently, the decision of the ME SC was not supported by substantial evidence and cannot stand. We find that MESC’s decision to withhold Woods’s unemployment benefits was not supported by substantial evidence and affirm the Circuit Court of Yazoo County.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY IS AFFIRMED.

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

      . We do note that while it appears Woods is not represented by counsel in the present matter, testimony by Garrity during the phone hearing indicates that he is represented in a related workers' compensation action.