text:
    Donna PEEBLES and Husband, Randy Peebles, Individually and As Natural Parents of Kevin B. Peebles and On His Behalf, Appellants v. WINSTON COUNTY, Randy Thomas, Sheriff, Winston County Board of Supervisors, Robert Goodin, President, Jerry C. Estes, Michael Peterson, Lamar Turnipseed and Randall Johnson, Appellees.
    No. 2004-CA-02195-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.

      Henry Palmer, attorney for appellants.
    Jason Scotch Ehrlinspiel, William Robert Allen, Robert 0. Allen, Brookhaven, attorneys for appellees.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   IRVING, J., for the Court.

¶ 1. Donna and Randy Peebles, individually and on behalf of their son, Kevin Peebles, sued Winston County, Sheriff Randy Thomas, and the Winston County Board of Supervisors (hereinafter collectively referred to as Winston County), alleging reckless disregard by Auxiliary Deputy Sheriff Paul Griffith in connection with a motor vehicle accident between himself and Kevin. The circuit court granted a directed verdict in favor of Winston County. Aggrieved, the Peebleses appeal and assert that the court erred in (1) failing to find that Griffith’s actions constituted reckless disregard, (2) failing to qualify Jonathan DeBord as an expert witness, and (3) finding that Griffith continuously had his emergency siren on prior to the accident.

¶ 2. We find no error; therefore, we affirm.

FACTS

¶ 3. On the evening of August 10, 2002, Griffith was conducting his routine patrol in the Winston County area when he received a 911 call, advising him of an accident with injuries. Griffith radioed dispatch and advised that he was proceeding to the accident scene. While en route, Griffith was informed that a Mississippi Highway Patrol officer was already at the accident scene. Griffith was never told to cease continuing to the scene. However, after learning of the presence of the highway patrol officer, Griffith testified that he continued in emergency mode to the accident scene, but at a reduced rate of speed.

¶ 4. At the same time that Griffith was proceeding to the accident scene, Kevin was traveling on the same stretch of highway, en route to meet his parents for dinner at a nearby restaurant. As Griffith topped the crest of a small hill on the highway, he came upon Kevin, driving his truck in the same lane and in the same direction as Griffith. According to Griffith, he saw Kevin’s brake lights come on and the vehicle appeared to be drifting to the right side of the lane. Apparently, Kevin could not pull off onto the shoulder because of the design of the highway at that particular location. Griffith, believing that Kevin was yielding the right of way, attempted to get around Kevin’s truck by passing in the left lane. However, Kevin turned left into Griffith’s path of travel. Griffith steered toward a ditch and applied his brakes in an effort to avoid a collision. Notwithstanding his efforts, a collision took place between Griffith and Kevin.

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

STANDARD OF REVIEW

¶ 6. “A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Maldonado v. Kelly, 768 So.2d 906, 908(¶4) (Miss.2000). His findings will not be disturbed on appeal “unless they are manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” City of Jackson v. Perry, 764 So.2d 373, 376(¶ 9) (Miss.2000).

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Reckless Disregard

¶ 7. In its motion for a directed verdict, Winston County asserted that it was immune from liability based on the Mississippi Tort Claims Act, specifically Mississippi Code Annotated section ll-46-9(l)(c) (Rev.2002). Section ll-46-9(l)(c) states that:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... [ajrising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury.

(emphasis added). It is uncontroverted that when the accident occurred Griffith was performing duties or activities within the meaning of the statute. Consequently, if Griffith did not act with reckless disregard for the safety and well-being of Kevin, then Winston County is immune from liability. See Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234, 1237(¶ 11) (Miss.1999).

¶ 8. The Peebleses contend that the lower court erred in failing to find that Griffith acted with reckless disregard in connection with the accident. The Peebleses argue that Griffith acted with reckless disregard for the safety and well-being of Kevin by engaging in the following acts: (1) continuing to the accident scene in emergency mode with knowledge that a Mississippi Highway Patrol officer and an ambulance were present at the scene, (2) traveling at a speed of 70 to 75 miles per hour while en route to the accident scene, (3) passing on a double yellow line, (4) passing within the intersection of another highway, and (5) violating state laws based on the erroneous belief that there were victims trapped in the vehicle. In support of their argument, the Peebleses cite Miss. Dep’t of Pub. Safety v. Durn, 861 So.2d 990 (Miss.2003).

¶ 9. In their brief, the Peebleses do not adequately explain how Dum supports their position. The Peebleses merely state that “[tjhis Court [the Mississippi Supreme Court] approved the findings that reckless disregard of others [sic] safety existed, under the facts presented, requiring the state to be responsible pursuant to the [Mississippi Tort Claims Act].” We find that the Peebleses’s reliance on Dum is misplaced. The Dum case arose out of a motor vehicle accident between state highway patrolman Reginald Lantern and Sammie Durn. In support of its ruling that Lantern acted with reckless disregard for the safety and well-being of Durn, the circuit court found “that Lantern was in pursuit of a speeding vehicle, that the accident occurred in an area where there are numerous businesses, that visibility was limited due to the time of day, and that Lantern was operating his vehicle at an excessive speed.” Durn, 861 So.2d at 994(¶ 6). In upholding the circuit court’s ruling, the Mississippi Supreme Court stated that “no credible evidence showed that Lantern had his siren on when he attempted to pass Durn, and the physical evidence at the scene shows that Lantern was traveling at a high rate of speed.” Durn, 861 So.2d at 998(¶ 24).

¶ 10. The facts of this case are clearly distinguishable from Dum. Dum involved excessive speed and the failure to use a siren on the part of a state highway patrolman. Here, the trial court found that Griffith was not traveling at an excessive rate of speed; the trial judge specifically found that Griffith was traveling 55 to 60 miles per hour at the time of the accident. The trial court also found that Griffith had his siren and blue lights in continuous operation.

¶ 11. We have held that “the common thread running through these cases [cases where an officer is accused of acting with reckless disregard in operating a motor vehicle] is an appreciation of the unreasonable risk of danger involved coupled with a conscious indifference to the consequences that were certain to follow.” Davis v. Latch, 873 So.2d 1059, 1062(¶ 15) (Miss.Ct.App.2004). “Our case law indicates ‘reckless disregard’ embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.” Durn, 861 So.2d at 995(¶ 10).

¶ 12. We find an absence of conduct that would constitute reckless disregard in the present case. Griffith was dispatched to the scene of an accident that apparently involved serious injuries because two ambulances had been dispatched to render aid. After Griffith learned that a highway patrolman was already present at the accident scene, he continued to the scene with blue lights and siren in constant operation and traveling at a rate of 55 to 60 miles per hour. Griffith testified that he believed that Kevin was yielding the right of way to him because when he encountered Kevin on the highway, he saw Kevin’s brake lights come on, and he noticed the truck drifting to the right side of the lane. Moreover, when Griffith realized that Kevin was not yielding the right of way and was attempting to make a left turn, he tried to avoid an accident by applying his brakes and steering his car toward the ditch. Consequently, based on these facts, we agree with the trial judge’s conclusion that, at most, Griffith was guilty of negligence in connection with the accident. There is no indication that Griffith engaged in any “willful or wanton conduct” or acted “with a conscious indifference” to the consequences of attempting to pass Kevin.

¶ 13. We find that Griffith’s actions did not rise to the level of reckless disregard for the safety and well-being of Kevin. Therefore, we find that Winston County is immune from liability. The trial judge’s grant of a directed verdict in favor of Winston County was proper.

2. Expert Witness

¶ 14. The Peebleses contend that the trial court erred by not allowing Jonathan DeBord, an accident reconstructionist, to give his expert opinion regarding the use of proper police procedures in emergency situations. At trial, the Peebleses designated DeBord as an expert in the field of accident reconstruction, and Winston County conceded that DeBord was qualified as an expert in that field. However, the Peebleses then sought to tender De-Bord as an expert in proper police procedures under the guise that his opinions regarding proper police procedures were interrelated with his opinions on accident reconstruction. The trial court refused to allow DeBord to give his expert opinion regarding proper police procedure, finding that he was no more qualified than any other law enforcement officer in the state to render an expert opinion in that area.

¶ 15. “The admission of expert testimony is within the sound discretion of the trial judge.” Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34(¶ 4) (Miss.2003) (citing Puckett v. State, 737 So.2d 322, 342(¶ 57) (Miss.1999)). The decision of the trial judge will stand unless “that discretion was' arbitrary and clearly erroneous, amounting to an abuse of discretion.” Id.

¶ 16. We note that in refusing to allow DeBord to give his expert opinion on proper police procedures, the trial court said the following:

And I don’t see that — I mean, you’re offering him for something different than accident reconstruction if he’s — if he — he’s actually being offered, it sounds like to me, to be testifying as to proper police procedures that needs to be used in an emergency situation, I assume.... Well, I believe he’s testified that he hasn’t got anymore training in this area than anybody else. It’s just a regular law enforcement officer that— you know, in service at Meridian and then training at the police academy in Pearl. I think that he is an expert in accident reconstruction. I’m satisfied that his qualifications are such.that he can testify in that regard. And to the extent that you have questions in that area, I’ll allow those.... But as far as in the area of police procedure, I don’t think that he’s any more qualified than any other law enforcement officer that’s out there certified by the state to be a law officer.

¶ 17. Despite its ultimate ruling on the matter, the trial court afforded the Pee-bleses several opportunities to establish DeBord as an expert in the area of police procedures. The trial court stated that the Peebleses had to demonstrate that De-Bord had received additional education and training in the area of police procedures, just as he had in the area of accident reconstruction. In an attempt to establish DeBord’s qualifications in the area, the Peebleses asked DeBord if he had had “any education or training or certification in dealing with emergency driving standards.” DeBord replied, “No.” Therefore, by his own admission, DeBord established that he did not have any more training or education regarding police procedures than any other law enforcement officer in the state. DeBord also admitted that he had never testified as an expert on police procedures. He further admitted that he had never testified regarding police procedures in emergency situations.

¶ 18. In short, we find that the trial court did not abuse its discretion, because DeBord was clearly not qualified to render an expert opinion in the field of proper police procedures. This issue is without merit.

3. Continuous Operation of Emergency Siren

¶ 19. The Peebleses argue that the trial court erred in finding that Griffith continuously had his emergency siren on prior to the accident. The Peebleses contend that Griffith was cycling his siren off and on, and that his siren was off prior to the accident and was turned on just immediately before the collision. The Peebleses point to the testimony of Perry Clay, Rodney Stokes, Laura Thornton, Larry Gregory, and Griffith as support for their argument. However, a fair and balanced reading of the entire testimony of each witness reveals a lack of support for the Peebleses’s contentions.

1120. Laura Thornton, a waitress at Goodin’s Grocery Store, was working at the time of the accident. On direct examination, she testified that she heard a siren immediately before she heard the impact. Thornton testified on cross-examination that she did not know whether the siren had been on for some time as Griffith approached the accident scene.

¶ 21. Perry Clay, a cook at Goodin’s Grocery Store, testified on direct that he heard a short, brief siren immediately before he heard a booming sound (the sound was the collision of the vehicles). On cross-examination, Clay was questioned about whether he had told an investigator for Winston County that he had heard the siren for some time before he heard the collision. In response, Clay testified that he could not deny that he had said that because he could not remember. Essentially, Clay testified that, due to the length of time between the accident and the trial, he basically could not remember much of anything about the accident or what he had previously told people about the accident.

¶ 22. Rodney Stokes, a customer at Goodin’s Grocery Store when the accident occurred, testified that he heard the impact of the accident. Stokes stated that he “heard a siren and then a loud noise.” Stokes further testified that he could not recall hearing the siren coming down the road. However, on cross-examination, Stokes admitted that he could not say with certainty that the siren was not on before he had heard it.

¶23. Larry Gregory testified that he lived 400 or 500 yards from Goodin’s Grocery Store. Gregory testified that there was no doubt in his mind that he heard the siren as Griffith was approaching his house. However, Gregory testified that it sounded as if Griffith had turned his siren off after he passed his house and proceeded down the road. On cross-examination, Gregory testified that, “[i]t just sounded like he turned it [the siren] off. Now, as far as I know, whether it [the siren] was still on or not, I cannot say.” Gregory also admitted on cross-examination that he had a hearing problem and that he was not wearing his hearing aid on the day of the accident.

¶ 24. Griffith testified that his siren and blue lights were in continuous operation from when he first began to proceed to the accident scene until the collision occurred.

¶ 25. We are mindful of the fact that there was conflicting testimony pertaining to the siren. Nevertheless, every witness, besides Gregory, testified that the siren was on at the time of impact. Furthermore, the trial judge heard all the testimony, gauged the credibility of the witnesses, and found that Griffith’s siren was in continuous use. More specifically, the trial judge stated the following:

The witness, David Lee Gregory, testified that he lives 400 to 500 yards from Goodin’s Grocery, which is the scene of the accident. He testified that he heard the siren coming from towards Louisville. That he could not hear that siren once he — it passed — -the automobile passed his house, and he could not testify whether the siren was cut off once it passed his house or whether he just could not hear it, and he did testify that he did have hearing problems. Perry Clay, James Rodney Stokes and Laura Thornton all heard the siren just before the accident. This Court — using the calculations and assuming that Deputy Griffith was traveling at a rate of 60 miles per hour, calculated that it would just take 19.8 seconds from the front of Mr. Gregory’s house to the front of Goo-din’s Grocery, the car would have traveled that distance in that amount of time. The Court, therefore, finds that the siren was on the entire time. The Court finds it unbelievable and inconsistent and inconceivable that the siren could be on, then off, then on again in that short period of time. And Deputy Griffith certainly did not testify to that fact and no one else has as well.

¶ 26. Our supreme court has stated that “[o]n appeal of a trial court judgment rendered subsequent to a bench trial where the judge has sat as the fact-finder, we afford deference to the findings of the trial judge.” Chantey Music Pub., Inc. v. Mataco, Inc., 915 So.2d 1052, 1055(¶ 10) (Miss.2005). With that standard in mind, we decline to disturb the trial judge’s finding that Griffith’s siren was in continuous operation.

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

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

      . After passing Dum, Lantern observed a speeding vehicle. Lantern made a u-turn, activated his blue lights, and began pursuit of the speeding vehicle. During the pursuit, an accident between Durn and Lantern occurred as Durn attempted to make a left hand turn into a garage parking lot. Dum, 861 So.2d at 993 (¶¶ 2-5).

      . From the credible testimony, the trial judge found that Griffith, at best, was exceeding the speed limit by just five miles per hour when the accident occurred. The trial judge also noted that Mississippi Code Annotated section 63-3-517 (Rev.2004) allowed Griffith to exceed the speed limit under the circumstances. Section 63-5-517 states in pertinent part: "[tjhe speed limitations set forth in this article shall not apply to authorized emergency vehicles when responding to emergency calls and the drivers thereof sound audible signal by bell, siren, or exhaust whistle.”

      . We note that, besides Griffith, none of the other witnesses actually saw the accident.

      . Goodin’s Grocery Store was the restaurant where Kevin was scheduled to meet his parents for dinner on the evening of the accident.


source: Caselaw Access Project

author: IRVING, J., for the Court.

license: Public Domain

text:
    Marquis Yarnell HENDERSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01329-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.

      Bernard C. Jones, Jackson, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, P.J., IRVING, GRIFFIS AND ROBERTS, JJ.

      . Apparently, the argument stemmed from the fact that Shandell had taken Marquis's son with him earlier that day without informing the child's mother.

   IRVING, J., for the Court.

¶ 1. Marquis Yarnell Henderson pleaded guilty to manslaughter, and the trial court sentenced him to serve fifteen years in the custody of the Mississippi Department of Corrections. Aggrieved, Henderson appeals and assert the following errors: (1) the trial court abused its discretion by applying a sentencing analysis applicable to murder instead of a sentencing analysis applicable to manslaughter by culpable negligence, thereby violating his rights to due process and equal protection under the United States and Mississippi Constitutions, and (2) given the facts and circumstances of the case, the trial court erred in imposing a sentence that was grossly disproportionate to the crime of manslaughter by culpable negligence.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On June 1, 2003, Marquis and his brother, Shandell Henderson, got into an argument. After they had engaged in a shoving match, Shandell went to a nearby residence and retrieved a shotgun, while Marquis went to his residence and retrieved a handgun. Soon thereafter, Shan-dell fired a shot into the air in the general direction of Marquis’s house. In turn, Marquis fired a single shot from his handgun into the air.

¶ 4. During this time, Shandell’s four-year-old son, Kyai Deshun Henderson, was inside his grandmother’s house. Upon hearing the shots, Kyai ran out the back door of the house. The bullet that had been fired from Marquis’s gun fell from the air, hitting and killing Kyai.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Trial Court’s Sentencing

¶ 5. Under this assignment of error, Henderson contends that the trial court violated his due process and equal protection rights when it imposed a fifteen year sentence upon him. Henderson argues that, “given the unique facts and circumstances of the case,” the court abused its discretion by engaging in a sentence analysis applicable to murder instead of a sentence analysis applicable to manslaughter. Henderson maintains that the trial judge improperly substituted his judgment for the judgment of the grand jury when he stated that he believed that the crime was murder, not manslaughter.

¶ 6. Henderson pleaded guilty to manslaughter under Mississippi Code Annotated section 97-3-47 (Rev.2000). The penalty for manslaughter is enumerated in Mississippi Code Annotated section 97-3-25 (Rev.2000), which reads as follows: “[a]ny person convicted of manslaughter shall be fined in the sum not less than five hundred dollars, or imprisoned in the county jail not more than one year, or both, or in the penitentiary not less than two years, nor more than twenty years.”

¶ 7. The statute clearly indicates that the maximum sentence for manslaughter is twenty years. The trial judge imposed a fifteen-year sentence upon Henderson, five years less than the maximum statutory sentence. It does not matter that the trial judge believed that Henderson had committed murder instead of manslaughter, because the judge still acted within the discretion given to him by law in sentencing Henderson. The Mississippi Supreme Court has repeatedly held that “a trial court will not be held in error or held to have abused [its] discretion if the sentence imposed is within the limits fixed by statute.” Johnson v. State, 461 So.2d 1288, 1292 (Miss.1984) (citations omitted).

¶ 8.- For the sake of thoroughness, we briefly address Henderson second contention: that the trial court’s sentencing “may have been influenced by an incorrect understanding of how the plea agreement was reached.” According to Henderson, the plea was not á plea to a lesser-included offense, but was a plea to manslaughter as charged in the indictment. Apparently, Henderson is implying that the trial court erred by not accepting the State’s sentencing recommendation.

¶ 9. We disagree. The following exchange clearly indicates that Henderson was put on notice that the trial court was not obligated to accept any plea agreement that he had reached with the State:

Q. Do you understand that the Court is not bound by the plea agreement reached between your attorneys and the district attorney’s office and upon your guilty pleas [sic] to the offense of manslaughter could sentence you to a minimum of two years and up to twenty years?
A. Yes, sir.

We find that the trial court acted within its discretion in refusing to accept the State’s recommendation and in sentencing Henderson to serve fifteen years for the crime of manslaughter. This issue is without merit.

2. Disproportionate Sentence

¶ 10. Henderson claims that his sentence violates the Eighth Amendment prohibition against cruel and unusual punishment. Henderson concedes that his argument fails under established Mississippi case law. Therefore, Henderson essentially argues that his sentence is cruel and unusual because the trial judge should have afforded him some degree of compassion in sentencing given the circumstances which led to Kyai’s death.

¶ 11. We are mindful of the unfortunate circumstances of the case. We are also mindful of the fact that Henderson clearly did not intend to harm his young nephew in any way. However, the sad reality is that a young boy lost his life due to the actions of Henderson and his brother. Therefore, we find that a fifteen-year sentence is not grossly disproportionate for killing a four-year-old boy, regardless of the fact that the killing was unintentional. Our holding is further buttressed by the fact that the Mississippi Supreme Court has consistently recognized the broad authority of the legislature and trial court in the area of sentencing and “has repeatedly held that where a sentence is within prescribed statutory limits, it will be generally upheld and not regarded as cruel and unusual.” Barnwell, 567 So.2d at 222. We find nothing cruel and unusual in a fifteen-year sentence that is five years less than the statutory maximum prescribed by the legislator for the offense. This assignment of error is without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS 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.

      . The grand jury indicted Henderson for manslaughter. Henderson argues that the trial judge abused his discretion "by effectively ignoring the collective judgment of the grand juiy as to the crime for which Marquis Henderson was indicted."

      . Section 97-3-47 states that: "[ejvery other killing of a human being, by the act, procurement, or culpable negligence of another, and without the authority of law, not provided for in this title, shall be manslaughter.”

      .The State recommended a sentence of twenty years in the custody of the Mississippi Department of Corrections, sixteen years suspended, four years to serve with five years of supervised probation.

      . Henderson recognizes that established case law construing alleged violations of the Eighth Amendment prohibition against cruel and unusual punishment controls this assignment of error. In Barnwell v. State, 567 So.2d 215, 221 (Miss.1990), our supreme court adopted the position that "[a]part from ... a sentence of life in prison without the possibility of parole' — or a sentence which is manifestly disproportionate to the crime committed (e.g., life sentence for overtime parking), extended proportionality analysis is not required by the Eighth Amendment."


author: CHANDLER, J., for the Court.

text:
    Hark Wyatt BURCH, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01131-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.

      Hark Wyatt Burch, Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J., for the Court.

¶ 1. Hark Wyatt Burch appeals from the summary dismissal of his motion for post-conviction relief (PCR) by the Circuit Court of Pearl River County. Burch, proceeding pro se, argues that (1) his right to a speedy trial was violated; (2) the indictment was defective; and (3) he failed to receive credit for time served. Burch contends that the trial court erred by dismissing his PCR without an evidentiary hearing at which these issues would have been further developed. We find no error and affirm.

FACTS

¶ 2. Burch’s PCR with attached documentation indicates that, on September 23, 1998, Burch escaped from the Pearl River County jail, where he was being held on commercial burglary charges. He was apprehended by authorities in Greenville, South Carolina on October 4, 1998. On December 4, 1998, a Pearl River County grand jury handed down a three-count indictment charging Burch with felony escape, aggravated assault on a law officer, and armed robbery. The indictment charged that, in the course of his escape, Burch had assaulted and robbed a deputy-sheriff.

¶ 3. On October 4, 1998, Burch was apprehended in Greenville, South Carolina on a fugitive from justice warrant based on his Pearl River County charges. Burch was incarcerated in the Greenville County Detention Center as a fugitive from justice from October 4, 1998 until May 26, 1999. On May 26, 1999, he was transferred to the South Carolina Department of Corrections to begin serving a five year sentence for burglary imposed by a South Carolina court. On June 30, 2000, Burch was extradited to Orange County, Texas where he was incarcerated pending adjudication of a Texas burglary charge. On November 8, 2000, he was convicted and sentenced to five years in the custody of the Texas Department of Corrections to run concurrent with his South Carolina sentence. Burch remained incarcerated in Texas until being paroled on August 19, 2003, at which time he was transferred to the Walker County Jail in Texas. There he was incarcerated as a fugitive from justice from August 19, 2003 until August 28, 2003. On August 28, 2003, he was extradited to Mississippi to face his Pearl River County charges. Pearl River County had requested the placement of detainers on Burch during his periods of incarceration in South Carolina and Texas.

¶ 4. On June 1, 2004, the Circuit Court of Pearl River County accepted Burch’s pleas of guilty to one count of aggravated assault on a law officer and three counts of commercial burglary. The court dismissed the felony escape and armed robbery counts upon the State’s failure to prosecute those charges in exchange for the pleas. On June 24, 2004, the trial court entered separate judgments of conviction on each of the four counts. On May 24, 2005, Burch filed a PCR pertaining to his aggravated assault conviction and sentence of fifteen years in the custody of the Mississippi Department of Corrections, with five years to serve and ten years suspended pending successful completion of five years’ post-release supervision.

STANDARD OF REVIEW

¶ 5. The trial court may summarily dismiss a PCR “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief....” Miss.Code Ann. § 99-39-11(2) (Rev.2000). We will affirm the lower court’s summary dismissal of a PCR if, after reviewing the PCR de novo, we conclude that the petitioner has failed to “demonstrate ‘a claim procedurally alive substantially] showing denial of a state or federal right....’ ” Young v. State, 731 So.2d 1120, 1122(¶ 9) (Miss.1999) (quoting Myers v. State, 583 So.2d 174, 176 (Miss.1991)).

LAW AND ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED IN NOT GRANTING PETITION, WHERE APPELLANT’S GUILTY PLEA WAS ACCEPTED IN VIOLATION OF HIS RIGHT UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE SIX, SECTION 169 OF THE MISSISSIPPI CONSTITUTION OF 1890.

¶ 6. Burch argues that the approximate five and one-half year delay between his indictment on October 4, 1998 and his conviction on June 1, 2004 violated his state and federal constitutional rights to a speedy trial. The State posits that Burch’s guilty plea waived his right to a speedy trial. Indeed, “a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial,” including the constitutional right to a speedy trial. Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991).

¶ 7. While Burch does not contend that his guilty plea was involuntarily entered and, therefore, invalid, he does aver that, at his plea hearing, he was unaware of his right to a speedy trial. The transcript of Burch’s plea hearing reveals that the trial court informed Burch that he had a right to a speedy trial that would be waived if he pled guilty. The court asked if Burch understood, and Burch responded, “Yes, sir.” By entering a valid guilty plea, Burch waived his right to complain of a speedy trial violation. Id.

II. APPELLANT CONTENDS THAT THE INDICTMENT IN WHICH HE ENTERED A GUILTY PLEA WAS FATALLY DEFECTIVE IN VIOLATION OF ARTICLE SIX, SECTION 169 OF THE MISSISSIPPI CONSTITUTION OF 1890.

¶ 8. Next, Burch argues that his indictment was fatally defective for failure to properly charge him with the offense of aggravated assault on a law officer. The defect alleged by Burch was the failure to conclude the aggravated assault charge with the words, “against the peace and dignity of the State of Mississippi” A perusal of the indictment indicates that the words, “against the peace and dignity of the State of Mississippi” appear in two places, at the conclusion of the felony escape charge and at the conclusion of the indictment itself.

¶ 9. Burch did not object to his indictment at the plea hearing and the State contends that Burch’s guilty plea operated as a waiver of his right to complain of a defective indictment. Our supreme court has held that all technical and non-jurisdie-tional defects in an indictment are waived by the entry of a valid guilty plea. Brooks v. State, 573 So.2d 1350, 1355 (Miss.1990). We have held that an indictment’s failure to conclude with the words, “against the peace and dignity of the State of Mississippi” as required by Section 169 of the Mississippi Constitution of 1890 is a defect waived by a guilty plea. Ramage v. State, 914 So.2d 274, 278(¶ 10) (Miss.Ct.App.2005). Therefore, Burch’s guilty plea waived this issue. Notwithstanding the waiver, we note that Burch’s indictment in fact concluded with the requisite language.

III. WHETHER THE APPELLANT WAS ENTITLED TO CREDIT TOWARD HIS SENTENCE FROM OCTOBER 4, 1998 TO AUGUST 28, 2003.

¶ 10. Finally, Burch argues that the trial court erred by failing to afford him credit toward his aggravated assault sentence for the time he served in South Carolina and Texas. The judgment of conviction and sentence reveals that, in fact, the trial court ordered that Burch be given credit for time served. While Burch recognizes that the trial court ordered that he be credited for time served, he argues that he has not been given the requisite credit. In Burch’s statement of facts within his personal knowledge, he states that he has been credited for only one-third of the five and a half years that he was incarcerated after his arrest in South Carolina on October 4, 1998. Burch requests that this Court enter an order correcting his sentence to allow him to receive full credit.

¶ 11. This Court has recently addressed a prisoner’s post-conviction relief argument that he was not given credit toward his sentence for time served. Gable v. State, 919 So.2d 1075, 1077 (¶¶ 6-8) (Miss.Ct.App.2005). We reiterated our prior holding that, “a post-conviction relief pleading is not the proper means to calculate and receive credit for ... time served.” Id. (quoting Murphy v. State, 800 So.2d 525, 527-28(¶ 10) (Miss.Ct.App. 2001)). Rather, a prisoner aggrieved by the calculation of credit for time served should send a request to the proper authorities within the Mississippi Department of Corrections administrative system. Id. If the prisoner is denied the proper credit for time served, he may then resort to the courts for redress. Id. Therefore, Burch should notify the Mississippi Department of Corrections of any miscalculation of time served which he perceives has occurred. This issue is without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

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


author: ROBERTS, J., for the Court.

text:
    Bertha JOHNSON, for and on Behalf of All Wrongful Death Beneficiaries of Jekelcy Lee Johnson, Deceased, Appellant. v. ALCORN STATE UNIVERSITY, Appellee. Roddel Devoual, Appellant v. Alcorn State University, Appellee.
    Nos. 2004-CA-02543-COA, 2005-CA-00027-COA.
    Court of Appeals of Mississippi.
    May 23, 2006.

      Jenny M. Virden, and James P. Cothren, Jackson, attorney for appellants.
    Mary Ann Connell, J. Cal Mayo, Oxford, attorneys for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J., for the Court.

SUMMARY OF THE CASE

¶ 1. This appeal arises from a civil lawsuit filed incident to a tragic event that occurred on the campus of Alcorn State University. On the evening of Monday, October 8, 2001, Demetrice Williams, a non-student, went onto the campus of Al-corn State, took part in a physical altercation with four female students, and eventually shot two students. One student, Roddel Devoual, survived. JeKelcy Johnson did not.

¶ 2. JeKelcy’s mother, Bertha Johnson, brought a wrongful death action against Alcorn State on JeKelcy’s behalf. Separately, Roddel also sued Alcorn State. Ms. Johnson and Roddel claimed that the Alcorn State campus police department negligently let Demetrice onto the campus and that Larry King, Dean of the W.S. Demby Men’s Tower Dormitory, failed to protect JeKelcy and Roddel. After a bench trial before the Claiborne County Circuit Court, the circuit court entered judgment for Alcorn State. Aggrieved, Ms. Johnson and Roddel appeal and claim: (1) the circuit court erred when it found no liability for Dean King’s acts, and (2) the circuit court erred when it found no liability for the campus police department’s acts. Finding no error, we affirm.

FACTS

¶ 3. On the evening of Monday, October 8, 2001, Demetrice Williams and three of his friends, Tyaundra Batteaste, Terrell Chatman, and Troy Hayes, drove onto the campus of Alcorn State University. None of them were students. Alcorn State had a ‘Welcome Center” located at the main and rear entrances to the campus. The Welcome Center located at the main entrance to the campus operated constantly. The Welcome Center at the rear entrance to the campus operated from 7:00 a.m. until 10:00 or 11:00 p.m.

¶ 4. The record does not indicate what time Demetrice entered the campus. However, during the hours of operation, a member of the campus police department stationed at one of the Welcome Centers was to “log-in” each non-student visitor that entered the campus. There is no record of Demetrice’s car on the log-in sheet for that night. In fact, no one was able to locate the log-in sheet for October 8, 2001. However, portions of the record indicate that officers had discretion to suspend the log-in process when public events occurred, such as the “non-Greek” step show that took place that evening.

¶ 5. At any rate, Demetrice and his friends rode around the campus and, at an area near the men’s dormitories, they happened across four female students in another car. Those four students were Kimberly Putman, Keishia Hargro, Surrenda Davis, and Sheena Scarbrough. Deme-trice and his friends pulled alongside Kimberly’s group of friends and tried to talk to Sheena. Apparently, Sheena was not as interested in talking to Demetrice’s friend. Feeling rejected, Demetrice’s friend threw beer in Sheena’s face. That act escalated into a full-blown physical altercation. According to Kimberly, Demetrice and his three friends fought with Sheena and Sur-renda, while she and Keishia tried to break up the fight. However, during that altercation, Demetrice or one of his friends hit Kimberly in the head with a beer bottle. Additionally, Surrenda injured her hand. After the fight stopped, Surrenda asked her friends to take her to the hospital.

¶ 6. Meanwhile, Officers Alvin Barnes, Phyllis Young, and Lawrence Coleman were in the vicinity of the men’s dormitories. As the officers placed a “boot” on a car, a student approached them and told them that there had been a fight and that a female student had been beaten up. When the officers responded to the scene of the fight, they found a crowd but, by that time, all participants had left the area. The students who were still there told the officers that no one was fighting. As such, the officers returned to their other duties.

¶ 7. Independently, a student named James Clay memorized Demetrice’s license plate and passed it along to Larry King. The record refers to King as the Dean of the W.S. Demby Men’s Tower Dormitory. However, the record also contains a copy of Alcorn State’s Operations Manual for its various residence halls. The manual refers to King as one of the two “Resident Hall Educators.” Regardless, Dean King left the dorm and went to the scene of the fight. He saw the campus police officers among the students. He concluded that the officers were best equipped to handle that situation. When he heard a loud commotion in the dorm, he went back upstairs and did not report the fight.

¶ 8. Meanwhile, Surrenda did not make it to the hospital. Five or ten minutes after the initial altercation, Kimberly found her boyfriend, Roddel Devoual, at an area on campus commonly called “the park.” In his deposition, Roddel said that it was about 10:40 p.m. when Kimberly found him. Kimberly told Roddel about her altercation with Demetrice and his friends. Kimberly also told Roddel that someone hit her with a beer bottle. According to Roddel, they “went to the place where it happened to see what was going on.”

¶ 9. Kimberly and Roddel returned to the area near the men’s dormitory. They found a large crowd around at least one stripper. Roddel estimated that there were between one hundred and two hundred people gathered together. As they scanned the crowd for Demetrice, Roddel’s friend JeKelcy Johnson walked up to Rod-del. JeKelcy went to high school with Roddel and they graduated the same year. JeKelcy asked Roddel about the situation.

¶ 10. Suddenly, Sheena recognized Demetrice and said “that’s him.” Either simultaneously or a split second after Sheena recognized Demetrice, Demetrice drew a concealed Bryco Arms .380 caliber pistol and fired in Roddel’s direction. Demetrice was no more than ten or fifteen feet away when he shot Roddel and JeKel-cy-

¶ 11. Demetrice shot JeKelcy multiple times, including a fatal shot to JeKelcy’s head. Demetrice hit Roddel once in the right side of his chest. That bullet lodged below one of Roddel’s ribs. Roddel was able to run to a building across the street. A building custodian took Roddel inside the building, locked him in an office, and called the campus police department.

¶ 12. Campus police responded to the scene of the shooting. Officers Robert Shelvy and Phyllis Young took Roddel to the Claiborne County Hospital. From there, Roddel was airlifted to the University of Mississippi Medical Center (UMMC) in Jackson, Mississippi. At UMMC, Rod-del underwent surgery. Surgeons were able to remove the bullet.

¶ 13. Demetrice, with the aid of his friends, fled the scene. Demetrice was apprehended as he attempted to return to his home in Natchez, Mississippi. The Claiborne County grand jury returned an indictment against Demetrice and charged him with murder, aggravated assault, and possession of a firearm on educational property. On February 5, 2002, Deme-trice, then twenty years old, filed a petition to enter a plea of guilty. In his petition, Williams submitted that he “unlawfully and feloniously by culpable negligence caused the death of JeKelcy Johnson by firing a gun in his direction when he was coming at me” and that he “unlawfully and feloniously cause [sic] bodily injury to Rod-dell [sic] Devoual with a handgun.”

¶ 14. On February 11, 2002, the Claiborne County Circuit Court issued a sentencing order incident to Demetrice Williams’s pleading guilty to manslaughter, aggravated assault, and possession of a firearm on the property of an educational facility. By way of its sentencing order, the circuit court sentenced Williams to twenty years for manslaughter, twenty years for aggravated assault, and three years for possession of a firearm on the property of an educational facility. The circuit court set the sentences to run consecutive to one another, for a total sentence of forty-three years.

¶ 15. On July 29, 2002, JeKelcy’s mother, Ms. Bertha Johnson, filed a complaint in the Claiborne County Circuit Court on JeKelcy’s behalf. Ms. Johnson sued Al-corn State under a cause of action for wrongful death. On November 14, 2002, Roddel sued Alcorn State.

¶ 16. On October 17, 2003, Alcorn State filed a motion for summary judgment. By way of its motion, Alcorn State argued that it was not liable for JeKelcy’s death or Roddel’s injuries because: (a) it was exempt from liability under the Mississippi Tort Claims Act (MTCA); (b) no member of the campus police department acted in reckless disregard of either JeKelcy’s or Roddel’s safety and well-being; (c) all Al-corn State employees were acting within the bounds of their discretionary functions; and (d) Alcorn State could not be liable for Demetrice’s intervening and superceding malicious criminal conduct.

¶ 17. On November 20, 2003, the circuit court entered its opinion and order on Alcorn State’s motion for summary judgment. The circuit court held that no genuine issue of material fact existed regarding the campus police officers’ investigation of the reported' altercation that involved Kimberly. As such, the circuit court granted Alcorn State’s motion for summary judgment regarding that issue. However, the circuit court also held that there were genuine issues of material fact regarding whether the campus police department acted in reckless disregard of JeKelcy’s and Roddel’s safety when it allowed Deme-trice to enter the campus and did not record his entry in the log-in book.

¶ 18. The circuit court took up the remaining issues in a bench trial. At the bench tidal, Ms. Johnson and Roddel argued that Alcorn State was liable for JeK-elcy’s death and Roddel’s injuries because Dean King failed to protect the students on campus. Ms. Johnson and Roddel maintained their argument that Alcorn State was liable for JeKelcy’s death and Roddel’s injuries because the campus police department failed to enforce its log-in policy at the Welcome Centers.

¶ 19. On November 22, 2004, the circuit court issued its findings of facts and conclusions of law. As for Dean King, the circuit court found that:

King was only responsible for the area inside his residence hall. As dormitory director, he had responsibility for proper administration of his assigned dorm which included janitorial services, mail delivery and room assignment. King had no statutory duty to perform any of his functions, much less to provide protection for the students outside of his administrative control on the school grounds. His decision not to report the tag number of the assailants to the police was an exercise of his discretion because he investigated and believed the police had things under control.

Accordingly, the circuit court found that “King’s duties and actions or omissions in regard to the incident in question required him to use his judgment and discretion, therefore they are discretionary.” The circuit court concluded that, “[i]n light of the fact that King’s actions 'were discretionary, both Alcorn and King are immune from suit for King’s alleged negligence pursuant to MTCA § 11 — 46—9(l)(d).”

¶ 20. Next, the circuit court considered whether the campus police department should be held liable for failing to screen campus visitors pursuant to its log-in policy. The circuit court found that: (a) the campus police department did not follow the rules regarding logging-in of vehicles; (b) there was no record of Demetrice entering the campus; (c) the campus police department provided no explanation for the lack of the entry in the log book; (d) the log-in procedure was intended to keep dangerous people off campus; (e) Bernadette Wilson, Chief of University police, testified that the policy was usually ignored when there was a public event on campus, like the non-Greek step show; and (f) the manual contained no exceptions for such an event. The circuit court noted its findings and held that the campus police department acted in reckless disregard for the safety of students and faculty at Alcorn State when it failed to follow its procedure for logging-in vehicles at the welcome centers. Accordingly, the circuit court found that Alcorn State was not immune under the MTCA for the acts of the campus police department.

¶ 21. Having found such, the circuit court then considered whether Ms. Johnson and Roddel presented a sufficient case of negligence. The circuit court found that Ms. Johnson and Roddel presented sufficient proof of the elements of duty and breach, but that they failed to show the necessary causal connection. The circuit court stated that, pursuant to Ms. Johnson’s and Roddel’s allegations, when the campus police department let Demetriee enter the campus and allowed him to remain there, Alcorn State caused JeKelcy’s death and Roddel’s injuries. According to the circuit court:

Even had the police recorded information in the Welcome Center log book, they would not have searched the car for weapons, and they would not have discovered the perpetrators’ criminal records. The Police Manual does not call for pat downs, searches, or the running [of] the records of the occupants of vehicles entering Alcorn’s campus. [Johnson and Devoual] ... failed to prove that ‘but for’ the failure of the police to log in the assailants, the shooting would not have happened.

The circuit court also found that Ms. Johnson and Roddel failed to prove proximate cause when it held:

Had the proper logging-in procedures been followed, the police officer manning the Welcome Center would still not have been able to anticipate that the admission of a car of young males onto campus on a night where several shows were taking place would lead to a shooting. None of these individuals had ever caused trouble on campus before, and [Alcorn State] does not have a history of violence. There were simply no indicators which would have led a police officer manning the Welcome Center to foresee violence. Even more dispositive of the issue of proximate cause is Deme-trice Williams’ intervening and su-perceding criminal acts which caused [JeKelcy’s and Roddel’s] injuries.
Since it has been established that the shooting was unforeseeable, [Deme-trice’s] criminal act was a superceding cause which reheves [Alcorn State] of liability. [Ms. Johnson and Roddel] have failed to prove their prima facie case of negligence, in particular the element of causation, therefore [Alcorn State] cannot be held liable.

¶ 22. On December 1, 2004, the circuit court entered its final judgment and ruled in favor of Alcorn State incident to all claims. Consequently, the circuit court held that Ms. Johnson take nothing from her complaint and that her complaint was “dismissed on the merits with prejudice.”

¶ 23. On December 22, 2004, Ms. Johnson and Roddel appealed.

STANDARD OF REVIEW

¶ 24. Ms. Johnson and Roddel do not claim that the circuit court erred when it ruled on Alcorn State’s motion for summary judgment. Rather, they claim that the circuit court erred when it granted final judgment for the University. As such, the appellants appeal from the circuit court’s decision on the merits incident to the bench trial.

¶25. “A circuit judge sitting without a jury is accorded the same deference with regard to his findings of fact as a chancellor, and his findings are safe on appeal if they are supported by substantial, credible, and reasonable evidence.” City of Jackson v. Calcote, 910 So.2d 1103(1111) (Miss.2005) (internal quotations omitted). As for questions of law, including proper application of the Mississippi Tort Claims Act, this Court applies a de novo standard of review. Maldonado v. Kelly, 768 So.2d 906(¶4) (Miss.2000).

ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED WHEN IT FOUND THAT ALCORN STATE WAS NOT LIABLE FOR JEKELCY’S DEATH OR RODDEL’S INJURIES BASED ON DEAN KING’S ACTIONS OR FOR HIS FAILURE TO ACT.

¶26. The Mississippi Tort Claims Act (MTCA) provides the exclusive civil remedy against state and governmental entities. Miss.Code Ann. § 11-46-7(1) (Rev.2002). State universities fall within the immunity of the MTCA. Miss.Code Ann. § 11 — 46— l(j) (Rev.2002). Alcorn State University is a public, state-supported institution. Miss. Code Ann. § 37-121-1 (Rev.2001). Accordingly, Alcorn State enjoys the immunity codified within the MTCA.

¶ 27. Ms. Johnson and Roddel sued Al-corn State and alleged that, through Dean King, Alcorn State negligently caused or contributed to JeKelcy’s death and Rod-del’s injuries. The circuit court held that Dean King’s acts were discretionary and concluded that Alcorn State was immune from any liability that might have resulted from Dean King’s conduct. Ms. Johnson and Roddel appeal and claim that the circuit court erred when it reached that conclusion.

¶ 28. First, we consider just what duty Dean King, Alcorn State’s employee, owed to JeKeley and Roddel. The existence of a duty is a question of law. State Farm Auto Ins. Co. v. Davis, 887 So.2d 192(¶ 7) (Miss.Ct.App.2004). The circuit court found that Ms. Johnson and Roddel failed to cite a statute that imposed a duty upon Dean King to “protect students from harm outside of the dorm, or to warn students of a harmful condition on the campus.... ”

¶ 29. Regardless, the circuit court determined that Dean King was bound by the “discretionary acts” provision of the MTCA. Pursuant to that provision:

[Alcorn State] and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... [biased upon the exercise or performance or the failure to perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.

Miss.Code Ann. § 11 — 46—9(l)(d).

¶ 30. On appeal, Ms. Johnson and Roddel claim that the circuit court erred when it determined that Dean King’s conduct fell within the “discretionary acts” provision of the MTCA. In their brief, Ms. Johnson and Roddel submit that:

[t]he trial court simply erred in concluding that [Alcorn State], acting by and through its employee Dorm Dean King, was immune from liability because he had only a discretionary duty to warn of the dangerous condition that [Alcorn State’s] officials concede existed on the campus for at least a half hour period before the shootings occurred.

Pursuant to their argument, Ms. Johnson and Roddel envoke Section 11^16-9(l)(v) of the Mississippi Code. That Section states that Alcorn State is immune for any claim:

Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care.

Id. Additionally, Ms. Johnson and Roddel cite Lowery v. Harrison Cty. Bd. of Sup’rs, 891 So.2d 264 (Miss.Ct.App.2004) and argue that Dean King owed JeKeley and Roddel the duty to warn them of the dangerous condition on campus and to use ordinary care in performing that duty.

¶ 31. First and foremost, neither Ms. Johnson nor Roddel raised this issue in the trial court. In the circuit court’s findings of fact and conclusions of law, the circuit court noted that Ms. Johnson and Roddel failed to cite “any statute which imposes a duty on a Dormitory Director to protect students from harm outside of the dorm, or to warn students of a harmful condition on campus.” Appellate courts may not rule upon material matters which the trial judge did not have the opportunity to judge. Ditto v. Hinds County, Miss., 665 So.2d 878, 880 (Miss.1995). Issues not raised at trial cannot be raised on appeal. Southern v. Mississippi State Hosp., 853 So.2d 1212(¶ 5) (Miss.2003). Accordingly, Ms. Johnson’s and Roddel’s argument under the “dangerous condition” provision of the MTCA is procedurally barred.

¶ 32. Procedural bar notwithstanding, Ms. Johnson and Roddel are simply misplaced in their understanding of the “dangerous condition” exemption of the MTCA. When the MTCA refers to “dangerous conditions on property of [a] governmental entity” it refers to dangerous conditions created by the character of the property, not dangerous conditions created by human agency.

¶ 33. Here, the underlying act of Ms. Johnson’s and Roddel’s claims is the fact that Demetrice shot JeKelcy and Roddel. Ms. Johnson and Roddel cite no authority which suggests that Alcorn State, through Dean King, had a duty to warn JeKelcy or Roddel of the dangerous condition of Dem-etriee’s character. The reason for this is simple; there is no authority which creates that duty.

¶ 34. Despite the fact that we have found that Dean King did not have a duty to warn JeKelcy and Roddel of a dangerous condition on Alcorn State’s property, we still have not determined just what duty Dean King owed JeKelcy and Roddel. In its findings of fact and conclusions of law, the circuit court found: (a) Dean King was responsible for the area within his assigned residence hall; (b) he had no statutory duty to perform his regular duties within this area; (c) he had no duty whatsoever to provide warning or protection to students outside of his dormitory, and; (d) his decision not to report the tag number of the assailants to the police was an exercise of his discretion because he investigated and thought the police had the' matter under control. JeKelcy and Roddel would have us impose liability for Dean King’s decision not to warn them of the danger that Demetrice posed to them.

¶ 35. Alcorn State’s residence hall operations manual indicates that Dean King was responsible for certain aspects of building management, housekeeping, maintenance, and fire safety. Additionally, the manual sets forth that residence directors should supervise the residents of his assigned dormitory, establish an atmosphere conducive to learning and development, advise and counsel students regarding aea-demic, personal, social and financial matters, maintain the dormitory bulletin board, organize work schedules for student workers, handle requests for room changes, and know the students in his dorm. The manual contains duties for certain dormitory guards, but the guard’s duties only involved security of the actual residence hall.

¶ 36. The undisputed proof shows that Dean King took no action in warning JeK-elcy and Roddel about Demetrice because (a) Dean King only knew that people in a car bearing a particular license plate fought with four female students; (b) Dean King did not know that Demetrice was an occupant of that car, much less that Deme-trice was armed with a pistol; (c) Dean King looked at the area the fight took place and saw a number of students talking with campus police officers, and; (d) Dean King believed that the campus police officers were best equipped to handle the investigation of the fight.

¶ 37. We fail to see how Dean King could owe a duty to warn JeKelcy or Roddel of anything under the circumstances. Even if we assume that Dean King owed a duty to supervise the area outside his assigned residence hall, his application of that duty would have been subject to his discretion. That is, Dean King would have been expected to apply his judgment in deciding whether to talk to campus police or to tell students that a group of potentially dangerous non-students were on campus. “When an official is required to use his own judgment or discretion in performing a duty, that duty is discretionary.” Collins v. Tallahatchie County, 876 So.2d 284(¶ 17) (Miss.2004). Governmental entities retain immunity from suit based on the performance of discretionary duties or functions, “whether or not the discretion be abused.” Miss. Code Ann. § 11 — 46—9(1)(d) (Rev.2002). As such, even if we found that Dean King owed JeKelcy and Roddel a duty outside his assigned residence hall, Dean King’s duty was discretionary and cannot be the basis to impose liability upon Alcorn State.

¶ 38. Even if we further assumed that Dean King had a duty to provide some sort of police protection to JeKelcy and Roddel, Dean King would be immune from liability unless he acted in reckless disregard of JeKelcy’s and Rod-del’s safety and well-being. See Miss Code Ann. § 11 — 46—9(l)(c). The “reckless disregard” standard encompasses willful and wanton action, which signifies “knowingly and intentionally” committing a wrongful act. Titus v. Williams, 844 So.2d 459(¶ 38) (Miss.2003). While stopping short of requiring intentional conduct, it embodies “conscious indifference to consequences, amounting almost to a willingness that harm should follow.” Id.

¶ 39. To find that Dean King was so indifferent to the consequences that it amounted to a near willingness that Deme-trice shot JeKelcy and Roddel, the facts would have to indicate that Dean King was aware that Demetrice took part in the initial altercation, that he possessed a pistol, that he would confront JeKelcy and Roddel, and that Demetrice was capable of shooting JeKelcy and Roddel. Dean King did not see the initial altercation between Demetrice and his friends and Kimberly and her friends. When James Clay brought Dean King the license plate information, Clay did not indicate that additional violence was likely or imminent. Dean King walked outside his assigned dormitory and saw campus police officers speaking with a crowd of students. Dean King did not know and had no reason to suspect that Demetrice had a pistol. Further, Dean King did not know that Kimberly reported the incident to Roddel and that they searched the campus to confront Demetrice. In light of the facts of this case, there is no evidence that Dean King acted with a “conscious indifference to consequences, amounting almost to a willingness that harm should follow.” No evidence suggests that Dean King, aware that an altercation had occurred outside the dormitory, could have foreseen that one of the participants would return to shoot another student. The record does not indicate that Alcorn State has a history of violence. Demetrice had no history of causing problems on campus.

¶ 40. Based on the record before- us, there is no evidence that Dean King breached any duty that he owed to JeKel-ey or Roddel. Dean King’s conduct cannot serve as the basis of liability on behalf of Alcorn State. Accordingly, we find no error in the circuit court’s decision.

II. WHETHER THE CIRCUIT COURT ERRED WHEN IT FOUND THAT ALCORN STATE WAS NOT LIABLE TO MS. JOHNSON OR ROD-DEL BASED ON THE CONDUCT OF CAMPUS POLICE DEPARTMENT.

¶ 41. In this issue, Ms. Johnson and Roddel appeal the circuit court’s decision in which the circuit court held that Alcorn State was not liable for the campus police department’s failure to apply its log-in procedure the night that Demetrice gained access to the campus. The circuit court found that Ms. Johnson’s claim, as well as Roddel’s claim, fell under the “police protection” provision of the MTCA. Under that provision, Alcorn State is immune from liability under any claim:

Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police ... protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.

Miss.Code Ann. § 11^46-9(l)(c).

¶ 42. The circuit court then found that the campus police department failed to follow the written regulations governing the Welcome Centers. According to the circuit court, the campus police, therefore, acted in reckless disregard of the safety of the students at Alcorn State, including JeKelcy and Roddel.

¶ 43. Despite the circuit court’s finding, the circuit court declined to find liability on behalf of the University. Instead, the circuit court found that the University was not liable to Ms. Johnson or Roddel because they failed to show the necessary causal connection. According to the circuit court:

Even had the police recorded information in the Welcome Center log book, they would not have searched the car for weapons and they would not have discovered the perpetrators’ criminal records. The Police Manual does not call for pat downs, searches, or the running [of] the records of the occupants of vehicles entering Alcorn’s campus.

As such, the circuit court concluded that Ms. Johnson and Roddel “failed to prove that ‘but for’ the failure of the police to log in the assailants, the shooting would not have happened.” Additionally, the circuit court found that Ms. Johnson and Roddel failed to prove that it was foreseeable that Demetrice would shoot JeKelcy and Rod-del and that Demetrice’s criminal acts were a superceding cause that relieved Alcorn State of liability. Ms. Johnson and Roddel appeal and claim that the circuit court erred when it found (a) they failed to prove a causal connection, (b) they failed to prove foreseeability, and (c) Demetrice’s acts were a superceding cause of JeKelcy’s death and Roddel’s injuries.

¶ 44. Alcorn State claims that it had no duty to construct or operate the Welcome Centers, to log cars onto campus, or to conduct background checks concerning campus visitors. Alcorn State further submits that, like Mississippi’s other public universities, it has no general affirmative duty to provide a safe campus environment for students. Alcorn State notes that campus police officers have the duties and obligations of a constable, and the laws that apply to any city, town, or village apply to the University. E.g., Miss.Code Ann. § 37-105-9 (Rev.2001).

¶ 45. That may very well be, but whether Alcorn State had a duty to construct the Welcome Centers, to log-in cars as they accessed the campus, or to conduct background checks of campus visitors is not the basis of Ms. Johnson’s or Roddel’s appeal. As Alcorn State did not file a cross-appeal to challenge the validity of the circuit court’s determination of the duty campus police officers owed to JeKelcy and Rod-del, we will not consider that issue on appeal.

¶46. Additionally, Alcorn State claims that the circuit court erred when it found that, by failing to follow the log-in procedures at the Welcome Centers, acted in reckless disregard of the safety of students. According to Alcorn State:

The only evidence placed before the [circuit court] was that a vehicle carrying four male visitors drove onto the campus without the vehicle being logged into one of the Welcome Center log books as required by the Police Department Policies and Procedures Manual. There is no proof that the officers had reason to suspect that the four visitors would become involved in an altercation with students on campus, that one of the four males carried a weapon or that one of the visitors would shoot any students. In fact, there is no evidence to suggest that the University’s police officers had any way to foresee the events that later unfolded on the evening of October 8, 2001.
Plaintiffs would have the Court conclude that the vehicle carrying the four male visitors entered campus in such a suspicious manner as to alert the police officer in the Welcome Center to some lurking danger inside the vehicle. In fact, based on the evidence at trial, it is just as likely that the police officer in the Welcome Center stopped the vehicle carrying the four visitors, asked their purpose on campus, learned of their plans to attend a campus public function, and then simply failed to record the information in the log.
While Plaintiffs make much out of the Policy Manual and the instruction concerning Welcome Center operations, President Bristow and Chief Wilson both explained that they expect police officers to use their judgment in applying the Welcome Center guidelines. For example, during public events, such as the step show on the evening in question, and during routine business hours, the police officers have the discretion to vary from the strict language of the manual and to obtain less information than stated in the manual. Certainly, police officers have this discretion to exercise their judgment, particularly under a reckless disregard standard.
At best for Plaintiffs, an unknown police officer made a judgment call about logging the male visitors onto campus-just the kind of decision (whether later viewed to be right or wrong) that Section ll-46-9(l)(c) shields. No evidence suggests that a police officer acted with reckless disregard by not recording information about the vehicle carrying Demetrice Williams when the car entered campus.

¶ 47. While Alcorn State presents a persuasive argument, we will not reach the question of whether the circuit court erred when it found that campus police officers acted in reckless disregard of the safety of students when the officers failed to follow the log-in procedures dictated in the police department manual. Ms. Johnson and Roddel did not raise that issue in their brief, and Alcorn State did not file a cross-appeal. As such, that issue is not presently before this Court. We turn to those issues raised in Ms. Johnson’s and Rod-del’s appeal.

A. Proximate Cause

¶ 48. Even if we assume that the circuit court was correct in finding recMess disregard, Ms. Johnson and Rod-del must also establish that the campus police department’s actions were the proximate cause of JeKelcy’s death and Rod-del’s injuries. See, e.g., Ogburn v. City of Wiggins, 919 So.2d 85(1121) (Miss.Ct.App.2006). “Proximate cause requires: (1) cause in fact; and (2) foreseeability.” Id. “Cause in fact means that the act or omission was a substantial factor in bringing about the injury, and without it the harm would not have occurred.” Id. (internal quotations omitted). “Foreseeability means that a person of ordinary intelligence should have anticipated the dangers that his negligent act created for others.” Id. First, we examine whether Ms. Johnson and Roddel presented sufficient evidence of causation in fact.

i.Cause in Fact

¶ 49. The circuit court found that Ms. Johnson and Roddel failed to prove that “but for” campus police department’s failure to log-in Demetrice, Demetrice would not have shot JeKelcy and Roddel. Ms. Johnson and Roddel claim the circuit court erred when it reached that conclusion. According to Ms. Johnson and Roddel, “[t]he trial court completely overlooked the fact that [Alcorn State’s] admission procedures were far more encompassing than merely requiring the officers to enter someone’s name in a log book.” Ms. Johnson and Roddel cite the provisions of the Alcorn State University Police Department manual on departmental policies and procedures. Pursuant to the police department manual, an officer stationed in a Welcome Center must:

1. Greet every vehicle that is approaching a checkpoint and inquire as to the nature of their business on campus.
2. Call the party or parties involved to verify if they are expecting a visitor or know the visitor who is trying to get on campus.
3. [Make sure visitors] leave their driver license [sic] or some form of identification for verification.

The manual further dictates that the officer should transfer the visitor’s identification to the Welcome Center log for record keeping and then return the identification when the visitor leaves campus.

¶ 50. Ms. Johnson and Roddel conclude that, “it is plain that had the procedures for admission or presence on campus been enforced, [Demetrice] would not have been permitted on the campus.” Though they do not state so, by their argument, Ms. Johnson and Roddel seem to claim that had campus police not admitted Deme-trice, then Demetrice could not have shot JeKelcy and Roddel. This is evident from their suggestion that “no credible evidence suggests that had all the procedures been followed, the men would still have been permitted to enter campus for the purpose of roaming around as late as 11:00 p.m. on a Monday evening.”

¶ 51. Ms. Johnson and Roddel present an argument that is conclusory and generalized at best. It is true that, had the police department prohibited Demetrice’s entrance on campus, he would not have engaged in an altercation with Kimberly, Kimberly would not have found Roddel and reported the altercation, Roddel would not have ventured to the same area as Demetrice, Kimberly’s friend would not have identified Demetrice, and Demetrice would not have been able to shoot JeKelcy and Roddel. However, as Alcorn State points out, there is no evidence in the record that, had an officer followed the procedure and recorded Demetrice’s information in the log book, the officer would not have searched Demetrice or the car in which he arrived for weapons. The log-in procedure did not mandate searches for weapons or otherwise. The outcome would vary only in that Demetrice’s name would be on record as having entered the boundaries of the campus. Because substantial, credible, and reasonable evidence supports the circuit court’s decision, we find no merit to this assignment of error,

ii. Foreseeability

¶ 52. Though we are in no way required to move forward with our analysis, for the sake of argument, we consider whether it was foreseeable that Demetrice would shoot JeKelcy and Roddel when the campus police department failed to log-in Demetrice upon his entry to the campus. As we stated, “[fjoreseeability means that a person of ordinary intelligence should have anticipated the dangers that his negligent act created for others.” Ogbum, 919 So.2d at (¶ 21). Further, “[fjoresee-ability does not require that a person anticipate the precise manner in which injury will occur once he has created a dangerous situation through his negligence.” Id.

¶ 53. The circuit court found:
Had the proper logging-in procedures been followed, the police officer manning the Welcome Center would still not have been able to anticipate that the admission of a car of young males onto campus on a night where several shows were taking place would lead to a shooting. None of these individuals had ever caused trouble on campus before, and [Alcorn State] does not have a history of violence. There were simply no indicators which would have led a police officer manning the Welcome Center to foresee violence.

According to Ms. Johnson and Roddel:

There is simply no credible evidence to support [the circuit court’s] conclusion, particularly in view of the trial court’s recognition that the purpose of the rules [regarding logging-in of visitors] was to prevent dangerous people from entering the campus and that the Police Officers acted in reckless disregard for the students’ safety in disregarding those procedures.

Ms. Johnson and Roddel cite Cumberland Telephone & Telegraph Co. v. Woodham, 99 Miss. 318, 332, 54 So. 890, 891 (1911) for the proposition that they were only obligated to present evidence of foreseeability that, “some injury, not necessarily the particular injury, or injury received in the particular manner complained of’ would result from the campus police department’s failure to follow the log — in procedure.

¶ 54. Ms. Johnson and Roddel conclude that “there is simply no credible evidence to support the conclusion that it was not foreseeable that students might be harmed if [Alcorn State’s] policies and procedures regarding the admission of non-student to the ... campus were not followed.” Even if that were the case, Ms. Johnson and Roddel are misplaced in their understanding of the relevant burden of proof. Al-corn State is not obligated to prove that, by failing to follow the log-in procedure, JeKelcy’s death and Roddel’s injuries were not foreseeable. Rather, Ms. Johnson and Roddel were obligated to prove, by a preponderance of the evidence, that JeKelcy’s death and Roddel’s injuries were foreseeable. The circuit court found that Ms. Johnson and Roddel failed to meet that burden of proof. We agree.

¶ 55. If the campus police department would have followed the log-in procedure, Demetrice’s name would appear in a book- — nothing more. It is not foreseeable that, because the campus police did not write down his name, Demetrice would kill JeKelcy and injure Roddel. We find no error in the circuit court’s decision regarding foreseeability.

B. Superceding Cause

¶ 56. For the sake of conclusion, we now consider Ms. Johnson’s and Rod-del’s assertion that the circuit court erred when it held that “[s]ince ... the shooting was unforeseeable, [Demetrice’s] criminal act was a superceding cause which relieves [Alcorn State] of liability.”

¶ 57. “A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.” Green v. Dalewood Property Oiuners’ Ass’n, Inc., 919 So.2d 1000(1119) (Miss.Ct.App.2005). We consider six factors in determining whether an intervening act qualifies as a superceding cause. Id. Those six factors are as follows:

(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence;
(b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation;
(c) the fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation;
(d) the fact that the operation of the intervening force is due to a third person’s act or to his failure to act;
(e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him;
(f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.

Id.

¶ 58. Demetrice’s shooting JeKelcy and Roddel is certainly not the harm that would have otherwise resulted from failing to log-in Demetrice when he entered the campus, and there is no evidence that it was anything other than an extraordinary event on the campus of Alcorn State. What is more, the police department’s failure to log-in someone would not normally result in a shooting. Not only that, operation of the intervening force, Demetrice’s decision to draw a pistol and shoot JeKelcy and Roddel, was entirely Demetrice’s decision. The record contains no evidence that Alcorn State somehow coerced Deme-trice into shooting JeKelcy and Roddel.

¶ 59. Considering our review of the relevant factors, we find that the circuit court did not err when it held Demetrice’s act to be an intervening and superceding cause. For this reason, and the reasons stated above, we find no error in the circuit court’s resolution of Alcorn State’s liability based on the campus police department’s failure to follow the department’s policy on logging-in visitors to the campus.

¶ 60. THE JUDGMENT OF THE CLAIBORNE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . The Claiborne County Circuit Clerk’s index of filings reflects the filing of an agreed order to consolidate Ms. Johnson's claim and Rod-del’s claim on December 27, 2002. The record before us does not contain a copy of that agreed order.

      . See, e.g., Jenkins v. Miss. Dep’t of Transp., 904 So.2d 1207(¶ 2) (Miss.Ct.App.2004) (motorist sued the department of transportation after he drove into a collapsed culvert); City of Clinton v. Smith, 861 So.2d 323(¶ 1) (Miss. 2003) (plaintiff sued the city after he slipped on ice as he left a municipal court building); Miss. Dep’t of Transp. v. Trosclair, 851 So.2d 408(115) (Miss.Ct.App.2003) (motorist sued the Department of Transportation and claimed an unmarked three-to-six inch shoulder drop-off on newly paved highway caused her car to leave the road); Mitchell v. City of Greenville, 846 So.2d 1028(¶4) (Miss.2003) (motorist sued the city and alleged that a pile of dirt and debris left in road from construction caused his car to leave the road); and City of Newton v. Lofton, 840 So.2d 833(¶ 2) (Miss.2003) (plaintiff sued the city after she tripped over a newly-completed curb and broke her ankle). Even Lowery, the basis of Ms. Johnson’s and Roddel’s argument, dealt with loose gravel on a public road. Lowery, 891 So.2d at (¶ 4).


text:
    Mary McDaniel Morrison SAVELL, Appellant v. Robert Lee MORRISON, Appellee.
    No. 2004-CA-02231-COA.
    Court of Appeals of Mississippi.
    May 23, 2006.

      Melissa Lee Day Gardner, Brandon, attorney for appellant.
    Thomas Dale Beavers, attorney for ap-pellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J., for the Court.

PROCEDURAL HISTORY

¶ 1. The parties, Mary Saveli (Mary) and Robert Morrison (Robert), were divorced on April 16, 1999, having one child of the marriage, Mary Anna Morrison (Anna), born July 19, 1995. As per the Dissolution Agreement, Mary was awarded primary physical custody of Anna with legal custody shared jointly between Mary and Robert.

¶ 2. At the conclusion of Anna’s summer visitation with her father in 2003, Robert filed a Motion for Modification of Custody citing Mary’s then unmarried cohabitation with Roger Saveli (Roger). On June 15, 2003, Robert was awarded temporary legal and physical custody of Anna while the parties awaited trial on Robert’s motion. At the November 20, 2003 hearing, Robert’s case was dismissed for lack of showing a material change in circumstances, partly as a result of Mary and Roger getting married shortly before trial began. As a result, the chancellor returned custody to Mary.

¶ 3. On June 1, 2004, Robert filed a petition seeking custody of Anna and was awarded sole legal and physical custody of Anna with the lower court’s final judgment of modification entered on August 12, 2004. Mary now appeals and makes her sole assignment of error the trial court’s modification of custody of Anna. The judgment of the trial court is affirmed.

FACTS

¶ 4. Subsequent to the 1999 divorce, both Robert and Mary remarried, with Mary remarrying twice. In 2000, Mary married Keirk Reisenbichler but later divorced in the fall of 2003, and, as noted above, shortly before the November 20, 2003 hearing, Mary’s third marriage was to Roger. Robert was married in 2000, to Rebecca Morrison (Rebecca). In addition to Anna, the Morrisons have two children, one of whom is Robert’s stepchild. Testimony at trial indicated that Anna and her siblings got along well when she was in the custody of her father.

¶ 5. Subsequent to the 2003 hearing Anna was returned to the Saveli household in December 2003, after her school term ended for the calendar year. As the lower court pointed out, this would mark the first time Anna would live with Roger and her mother as husband and wife. What would follow over the next several months would show a pattern of obscene language and threats of violence directed at Anna by Roger. These incidents would be brought to light through the testimony of Rebecca and the introduction of a recorded phone conversation she had with Roger two days after the November 2003 trial. In addition to events detailed during the conversation between Rebecca and Roger, testimony given during trial indicated that Roger used obscenities regularly and he stated during the taped conversation that he would use the word “f — •” in his home whenever he wanted.

¶ 6. During the conversation with Rebecca, Roger indicated that he was prepared to go to jail in the event that he “snapped” and whipped Anna. Roger also confirmed that he hollered “I don’t give a f— what you like” when Anna asked him to turn down the car radio. In fact, Roger indicated that it was his belief, after talking to an attorney, that he could yell at Anna whenever he wanted. He apparently took advantage of this advice when he admitted that he screamed at Anna on an almost daily basis. Additionally, Roger admitted that he wanted to repeatedly hit, or “pepper,” Anna with paintballs and duct tape her to a chair. Finally, Roger threatened Anna with a belt as a result of her talking back to her mother, scaring Anna to the point that she turned white.

STANDARD OF REVIEW

¶ 7. Matters involving child custody are within the sound discretion of the chancellor. Sturgis v. Sturgis, 792 So.2d 1020(¶ 12) (Miss.Ct.App.2001). The standard of review utilized in domestic relations cases is governed by the substantial evidence/manifest error rule. Beasley v. Beasley, 913 So.2d 358(¶ 6) (Miss.Ct.App.2005). Specifically, the lower court’s decision will not be disturbed unless the decision of the trial court was manifestly wrong, clearly erroneous, or applied an incorrect legal standard. Lambert v, Lambert, 872 So.2d 679(¶ 18) (Miss.Ct.App.2004).

ANALYSIS

¶ 8. When a change in custody is requested, the movant has the burden of showing, by a preponderance of the evidence that, there has been a material change in circumstances since the entry of the decree to be modified that adversely effects the child’s welfare. Staggs v. Staggs, 919 So.2d 112(¶ 11) (Miss.Ct.App. 2005); Glissen v. Glissen, 910 So.2d 603(¶ 21) (Miss.Ct.App.2005). Additionally, the material change in circumstances must have come about in the custodial home. Mabus v. Mabus, 847 So.2d 815(¶ 8) (Miss.2003); Beasley, 913 So.2d at (¶ 7). Furthermore, if a material change that adversely effects the child is found, it must be determined that the best interests of the child will be furthered by the purported change in custody before the change can be granted. Staggs, 919 So.2d at (¶ 7). Finally, the trial court may not consider each element and factor in a bubble, but must weigh them all together and make a determination in consideration of the totality of the circumstances. Elliott v. Elliott, 877 So.2d 450(1113) (Miss.Ct.App.2003).

I. WHETHER THE CHANCELLOR ERRED IN FINDING A MATERIAL CHANGE IN CIRCUMSTANCES.

¶ 9. Mary argues that the chancellor should have only considered those events that occurred after the November 20, 2003, trial when making the determination of whether or not there was a material change in circumstances. This is an incorrect application of the law. All events that have occurred since the issuance of the decree sought to be modified may be considered by the chancellor. In this instance, Robert sought to permanently modify the 1999, custody decree that awarded Mary primary physical custody of Anna. Therefore, the chancellor could have considered all evidence that may has been introduced at trial from that point through the end of trial. That being said, the chancellor did err in this respect, albeit harmless error, as the trial court did restrict its consideration of events to those that occurred after the November 30, 2003, trial.

¶ 10. WTiile many factors are considered in the initial consideration of custody, see, e.g. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), a request for modification does not simply give the petitioner another bite at the Albright apple. Beasley, 913 So.2d at (¶ 8). Post-divorce custody modification should only be entertained when it is shown that “parental behavior poses a clear danger to the child’s mental or emotional health.” Id. (citing Morrow v. Morrow, 591 So.2d 829, 833 (Miss.1991).) What should not be considered is the non-custodial parent’s visitation rights, or hindrance thereof, as they are legally irrelevant in custody matters unless interference with visitation has an adverse effect on the child or children in question. Balius v. Gaines, 908 So.2d 791(¶ 29) (Miss.Ct.App.2005).

¶ 11. In his opinion, the chancellor made clear that a material change in circumstances was shown from the evidence presented at trial. The trial court explained that its finding of a material change in circumstances was based on the facts that Mary denied Robert visitation on at least two instances, Roger’s use of obscene language, and Roger’s threats to harm Anna. While visitation should not have been considered in this case, Mary’s marriage to Roger and Roger’s subsequent treatment of Anna were well within the chancellor’s sphere of consideration as they were changes in the custodial home. By his own admission, Roger yelled at Anna on an almost daily basis and at times directed obscenities towards her.

¶ 12. Mary argues that Roger never physically disciplined or struck Anna, and from this implies that no material change in circumstances can be found. Mary further argues that the evidence presented at trial, at most, shows that Roger used profanity in and out of the presence of Anna. Both arguments are without merit. First, physical abuse or discipline is simply not required for the chancellor to find a material change in circumstances. Surely, physical abuse or excessive discipline would be a heavy factor to be considered within the totality of the circumstances, but it is not required. Secondly, Roger is guilty of much more than the simple use of profanity, as the chancellor pointed out in his opinion. Roger indicated that he did not care if he went to jail or not in the event that he physically disciplined Anna. Added to the facts that Roger has threatened Anna with physical discipline to the point that she turned white with fear and his desires to “pepper” her with paintballs and duct tape her to a chair indicate an increasing level of aggression, which the chancellor identified. Taken as a whole, we cannot say that the chancellor was manifestly wrong or clearly erroneous in his determination that there had been a material change in circumstances.

II. WHETHER THE CHANCELLOR ERRED IN FINDING A FUTURE POSSIBILITY OF ADVERSE EFFECTS.

¶ 13. Normally, it must be shown that a material change in circumstances in the child’s custodial home has a present adverse effect on the child or is detrimental to the child. Our supreme court has indicated that in limited circumstances adverse effects exist if it is shown that it is reasonably foreseeable that the child will suffer adverse effects because the child’s present custodial environment is clearly detrimental to his or her well being. Johnson v. Gray, 859 So.2d 1006(¶ 39) (Miss.2003); Glissen, 910 So.2d at (¶ 25). The Johnson court applied language from Riley v. Doerner, 677 So.2d 740 (Miss.1996), in holding that the chancellor may satisfy the “adverse effects” finding required in custody modification by finding reasonably foreseeable adverse effects if the child continues in the adverse environment. Johnson, 859 So.2d at (¶ 39). Additionally, this Court has stated that the chancellor need not wait for the minor child to actually be injured before finding an adverse effect. Glissen, 910 So.2d at (¶ 25). Specifically, “when the environment provided by the custodial parent is found to be adverse to the child’s best interest, and that the circumstances of the non-custodial parent have changed such that he or she is able to provide an environment more suitable than that of the custodial parent, the chancellor may modify custody accordingly.” Riley, 677 So.2d at 744 (emphasis in original). In Glissen, this Court interpreted Riley and determined that Riley “allow[s] a chancellor to modify child custody if the chancellor reasonably foresees that children will be harmed by a change in the custodial parent’s lifestyle.” Glissen, 910 So.2d at (If 25).

¶ 14. The Riley court stated, in situations in which no material change in circumstances can be shown a chancellor does have the power to, nonetheless, order , a change in custody. Riley, 677 So.2d at 744. This alternative standard should only be applied when the child’s health and welfare are truly at risk, but “in such rare cases, no rigid test or magic words should stand in the way of the chancellor as he or she acts to improve the child’s welfare through a modification of custody.” Id. at 745.

¶ 15. To be clear, the facts at hand do not rise to the high, alternative standard of custody modification dictated in Riley that would allow the movant to bypass the required showing of a detrimental, material change in circumstances. That being said, this is a case in which the chancellor was within his discretion to find reasonably foreseeable adverse effects based on the child’s environment and best interests, thus satisfying that element of the traditional custody modification analysis.

¶ 16. As in any custody modification determination, the polestar consideration is the well being of the minor child. Elliott, 877 So.2d at (¶ 13) (citing Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994)). In light of this, a chancellor’s hands should not be shackled by a minor child’s resilience to harm or ability to remain unscathed despite living in an adverse home environment. Riley, 677 So.2d at 744. Robert had remarried since the initial custody decree and he and Rebecca subsequently had a child in addition to Rebecca’s child. Testimony at trial indicated that Anna enjoyed her sibling’s company when she spent time with her father. Taken together with the chancellor’s finding that the Saveli household was adverse to Anna’s well being, we conclude that the chancellor was not manifestly wrong or clearly erroneous when he found reasonably foreseeable adverse effects.

¶ 17. Mary argues that Robert never produced any evidence of adverse affect on Anna as a result of the material change in circumstances that was shown. This is accurate, as the chancellor pointed out in his opinion, but under these facts it was not required. Being subjected to an almost constant barrage of yelling and profanity does not a healthy and happy child make. This may or may not have produced the adverse environment Anna experienced during her stay at the Saveli household but when added to the facts that Roger had already threatened her with physical punishment, had desires to “pepper” her with paintballs and bind her to a chair with duct tape, and his admitted willingness to go to jail if he “snapped,” an adverse effect on the child was just a matter of time. As noted above, and obvious to all, a child’s welfare is paramount.

¶ 18. Upon our review of the record, we can find no manifest error or clear error committed by the lower court or abuse of discretion of the chancellor’s part. The judgment of the Chancery Court of Madison County, therefore, is affirmed.

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

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