author: CHANDLER, J., KING, C.J.,

text:
    Sharon Ann Walker HARPER, Appellant v. Louis Lamont HARPER, Appellee.
    No. 2004-CA-02107-COA.
    Court of Appeals of Mississippi.
    April 11, 2006.

      William Paul Starks, Starkville, attorney for appellant.
    Luanne Stark Thompson, Aberdeen, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. In 1997, the Chancery Court of Monroe County granted Louis Lamount Harper and Sharon Ann Harper a divorce on the ground of irreconcilable differences. The parties agreed to joint physical and legal custody of their two minor children. The parties also agreed that Sharon would have primary physical custody of the children during the school year. On June 23, 2004, Louis filed an action requesting modification of custody. The trial court conducted a hearing on the merits and modified custody granting Louis primary physical custody of J.J. The chancellor issued the final order on September 20, 2004. Sharon appeals, raising the following issues:

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

II. WHETHER THE CHANCELLOR ERRED IN GRANTING LOUIS HARPER PRIMARY CUSTODY.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Louis and Sharon were divorced on March 7, 1997, in Monroe County, Mississippi. The Monroe County courts have maintained jurisdiction throughout the parties’ litigation. Louis continues to live in Monroe County. The parties agreed to joint physical and legal custody, with Sharon Harper having primary physical custody of the parties’ two children during the school year. The children are Kendra and Louis Harper, Jr., also known as J.J. Kendra was born on October 24, 1988, and J.J. was born on January 17, 1991. J.J. is afflicted with Down Syndrome and he has moderate special needs.

¶ 4. Around the time of the divorce in 1997, Sharon moved to Minneapolis, Minnesota with Kendra and J.J. For approximately eight years, both of the children resided in Minnesota with Sharon. The children spent every summer with Louis in Mississippi. In 2004, Kendra wanted to move to Mississippi to attend school. At that time, Sharon and Louis agreed to allow Kendra to move to Mississippi and live with her father.

¶ 5. On June 23, 2004, Louis filed a “Complaint for Contempt, for Emergency Relief, and for Modification of Child Custody.” Louis alleged that a material change in circumstances had occurred with regard to the custody of J.J. when Kendra moved to Mississippi. Sharon Harper denied the allegation in her response and counterclaim. The trial court ordered physical custody of J.J. to Louis. On appeal, Sharon contends that there was not a material change in circumstances when Kendra moved to Mississippi. Sharon argues, even if the chancellor found a material change in circumstances, the change was not adverse to J.J. and should not result in a modification of child custody.

STANDARD OF REVIEW

¶ 6. In custody cases, an appellate court must affirm findings of fact by chancellors in domestic cases when they are supported by substantial evidence. Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996). The appellate court must reverse the chancellor’s decision only if it is manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard. Brocato v. Brocato, 731 So.2d 1138, 1140 (¶ 8) (Miss.1999).

¶ 7. When determining whether to modify a previous child custody order, the chancellor must “determine if there has been a material change in circumstances since the award of initial custody which has adversely affected the child and which, in the best interest of the child, requires a change in custody.” Sanford v. Arinder, 800 So.2d 1267, 1271 (¶ 15) (Miss.Ct.App.2001).

ANALYSIS

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

¶ 8. On appeal, Sharon contends that a material change in circumstances did not occur when Kendra moved to Mississippi. At trial, both Sharon and Louis stipulated that the custody of Kendra was to be changed from Sharon to Louis. Both parties also stipulated to the fact that this was in the best interest of Kendra. Next, the chancellor questioned, “[b]y virtue of that [referring to the change in custody of Kendra], that constitutes a substantial and material change since the rendition of the previous decree of this Court; is that correct?” Louis’s counsel replied, “[y]es, your honor.” Sharon’s trial counsel did not respond.

¶ 9. The chancellor again addressed the stipulation during his bench ruling by stating, “the parties stipulated prior to beginning the case that it would be in the best interest and welfare of Kendra to live with her father and that that constituted a substantial and material change in which the Court could modify that decree and did so.” In the bench ruling, the chancellor also stated “[i]t having been stipulated that there are material and substantial changes which merit a revisitation of the issue of custody with regard to the minor child, and, principally, because the older sibling, Kendra, would be moving back with her father to Mississippi, then the Court really goes directly to the Albright factors.” There was no objection by either party with regard to either of the judge’s comments in the bench ruling.

¶ 10. A stipulation of fact is a fact which both parties agree is true. Wilbourn v. Hobson, 608 So.2d 1187, 1189 (Miss.1992). Sharon had multiple opportunities prior to trial and during the bench ruling to inform the court that she did not stipulate that there was a material and substantial change in circumstances. When parties agree to a stipulation, “[n]either party can later change positions.” Id. Because Sharon’s trial counsel did not respond or object to the stipulation, the issue of what constitutes a substantial and material change was not addressed by the chancellor. “Where a party fails to preserve his objection for appeal, he can assert the error on appeal only by arguing that there was plain error.” Waldon v. State, 749 So.2d 262, 267 (¶ 14) (Miss.Ct.App.1999) (citing Brown v. State, 690 So.2d 276, 297 (Miss.1996)). Sharon’s counsel does not assert that the failure to respond to the stipulation was plain error. Sharon merely argues that the material and substantial change in circumstances did not occur. We hold that the parties stipulated to the fact that there was a material and substantial change in circumstances. Therefore, the chancellor did not err in finding that a material change in circumstances had occurred.

II. WHETHER THE CHANCELLOR ERRED IN GRANTING LOUIS HARPER PRIMARY CUSTODY

¶ 11. “Once a material change in circumstances as they relate to child custody has been found, the chancellor should use the Albright factors to decide which parent should have custody of the child.” Mixon v. Sharp, 853 So.2d 834, 839 (¶ 19) (Miss.Ct.App.2003) (citing Sturgis v. Sturgis, 792 So.2d 1020, 1025 (¶ 19) (Miss.Ct.App.2001)). These factors are: the health and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and the responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of the parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

¶ 12. With regard to the Albright factors, the chancellor found that the continuity of care prior to separation weighs n favor of the mother because she had maintained primary custody over the minor children since the divorce. However, the chancellor found that the home, school and community record of the child; the child’s preference; and the Mississippi preference to keep siblings together favored the father.

¶ 13. The chancellor held that the home, school and community record of the child favored the father because the children have numerous friends and relatives located in Monroe County, Mississippi. The chancellor found that J.J. was of sufficient mental and emotional ability to state with clarity where he wanted to live. The chancellor determined that the child expressed a preference to live in Mississippi with his father. Although the chancellor did not give full weight to J.J.’s testimony, the chancellor gave the testimony some weight in evaluating the Albright factors.

¶ 14. The final factor in Albright is any other factor relevant to the parent-child relationship. The chancellor considered the relationship between J.J. and his sister, Kendra. J.J. had been with his sister all of his life. The chancellor found that J.J. depends on Kendra. Mississippi law gives a preference for keeping siblings together. “In the absence of some unusual and compelling circumstances dictating otherwise, it is not in the best interest of children to be separated.” Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994). Therefore, the fact that Kendra would be living in Mississippi weighed in favor of the father.

¶ 15. The chancellor found all of the other factors weighed equally in favor of both parents. The chancellor held that the sibling relationship coupled with the preference stated by J.J. outweighed the continuity of care by the mother. Therefore, the chancellor held that it would be in the best interest of J.J. to live with his father and his sister in Mississippi. Because more factors weighed in favor of the father, the chancellor granted custody of J.J. to Louis.

¶ 16. Sharon claims that the chancellor erred in granting Louis primary custody. She argues that the chancellor failed to give weight to the fact that J.J. was five-years old when he left Mississippi to live in Minnesota with his mother. Sharon contends, although J.J. had extended family in Mississippi, she had been providing care to J.J. for ten months a year for the last eight years. Therefore, she would be better suited to take care of J.J.’s medical condition than the extended family would. The chancellor did give weight to the fact that Sharon had been the primary caregiver since the divorce. However, the chancellor also considered the fact that the children had numerous friends and relatives in Mississippi.

¶ 17. Sharon argues that J.J. should not have been able to testify as to his preference for custody. Since the parties agreed to JJ.’s moderate Down Syndrome condition, Sharon argues that J.J. should not have been able to testify unless he has the capacity of a twelve-year-old child because the Albright factors allow a child over the age of twelve to testify as to preference for custody purposes. Albright, 437 So.2d at 1005. The chancellor found that, although J.J. had Down Syndrome, he was not in-communicative. The chancellor stated that it was “very clear that he wanted to stay with his daddy.” Additionally, the chancellor only gave partial weight to J.J.’s preference.

¶ 18. Finally, Sharon contends that the trial court should not have considered that Kendra would. be living in Mississippi. Sharon contends that Kendra was involved in many extracurricular activities. Therefore, Sharon argues that the chancellor should not have put much emphasis on the fact that Kendra would be living in Mississippi because she would not be spending that much time with J.J. As previously stated, Mississippi gives preference for keeping siblings together. Sellers, 638 So.2d at 485. Therefore, it was not error for the chancellor to consider where Kendra would be living.

¶ 19. The appellate court can reverse the chancellor’s decision only if it is manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard. Brocato v. Brocato, 731 So.2d 1138, 1140 (¶ 8) (Miss.1999). There is no evidence in this case that the chancellor’s decision is manifestly wrong or that the chancellor applied an erroneous legal standard. Therefore, we must affirm the decision of the chancellor.

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

LEE AND MYERS, P JJ., BARNES, ISHEE AND ROBERTS, JJ., CONCUR. KING, C.J., DISSENTS WITH' SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, IRVING AND GRIFFIS, JJ.

KING, C.J.,

Dissenting:

¶ 21. I dissent and would reverse and remand this case to the trial court to determine whether there was a material change in circumstances as relates to the child J.J.

¶22. On June 23, 2004, Mr. Harper filed an action to modify child custody. That matter was heard by the chancellor on August 26, 2004. When the chancellor called this case, the parties stipulated that the older child, Kendra, wished to live with Mr. Harper, and that it was in her best interest to reside with him. There was no such stipulation as to J. J.

¶ 23. The stipulation as to Kendra, and the lack of any stipulation as to J. J., is evident from the following excerpt from the record:

CHANCELLOR SHANDS: The Court calls Cause Number 96-612(48) S, Louis Harper verses Sharon Harper, and we have Ms. Thompson and Ms. Blalock. Are y’all ready?
MS. THOMPSON: Yes, Your Honor.
MS. BLALOCK: Yes, Your Honor.
CHANCELLOR SHANDS: All right. If y’all will advise the Court what we’re here for today, please.
MS. THOMPSON: Sir? I’m sorry.
CHANCELLOR SHANDS: If you will advise the Court what we’re here for today.
MS. THOMPSON: Okay. I’m sorry. We’re here today on matters of custody. Counsel opposite and I have agreed to stipulate that the eldest child, Kendra, can remain in the custody of her father, which, of course, would be a change from the current custody that her mother has of her. We’ve agreed to stipulate to that, so that will not be an issue. There are two minor children in this cause. Kendra, being the oldest, 16, has stated her preference to remain with her father, and then the younger child, who is J.J., is 13 and will be actually the purpose of our litigation today.
CHANCELLOR SHANDS: Okay. Now, Kendra Elaine Harper, 16 years of age, that’s the child y’all are stipulating that custody will be changed from that of the mother to the father?
MS. THOMPSON: Yes, Your Honor.
MS. BLALOCK: Yes, Your Honor.
CHANCELLOR SHANDS: All right, Now, are you going to stipulate that that’s in this child’s best interest and welfare?
MS. THOMPSON: Yes, Your Honor.
CHANCELLOR SHANDS: All right. By virtue of that, that constitutes a substantial and material change since the rendition of the previous decree of this Court; is that correct?
MS. THOMPSON: Yes, Your Honor.
CHANCELLOR SHANDS: All right. Now, the child you call J.J., you’re referring to J.J., is that the child in the petition known as Louis Lamont Harper, Jr.?
MS. THOMPSON: Yes, Your Honor.
CHANCELLOR SHANDS: All right. So any time there is a reference to J.J., we can know that that’s Louis Lamont Harper, Jr.?
MS. THOMPSON: Yes, Your Honor.
MS. BLALOCK: Yes, Your Honor.
CHANCELLOR SHANDS: Okay, let’s just make sure and get the record clear for anybody that reads this subsequently. So the issue before the Court today will be solely the issue of the custody of J.J.
MS. THOMPSON: Your Honor, yes, and, additionally, I suppose, child support will have to be reviewed, as well, based upon what Your Honor’s decision is.
MS. BLALOCK: Your Honor, that’s correct.
CHANCELLOR SHANDS: Okay. Is there any stipulation with regard for child support for this oldest child that you’re stipulating custody is going to be changed?
MS. THOMPSON: No, Your Honor. We haven’t — I think, that’s probably going to be dependent upon what happens with the second child.
CHANCELLOR SHANDS: Well, let me make sure I understand. The oldest child, of course, we’re required to pay support for this oldest child. Nobody is waiving that.
MS. THOMPSON: Oh, no, sir, we are not. It’s just I think that with the situation and the uncertainty, certainly, if my client were to get both children, we would ask that his child support be terminated for the mother and that the mother be assessed child support for both children. Alternatively, if Your Honor decides to let the second child go back with his mother to Minnesota, then, I think, the child support amount should be reviewed, and, perhaps, maybe, Your Honor would find that there would be no child support going as between the parties, due to .the fact that each would have a child in their custody.
CHANCELLOR SHANDS: So even though they have a child apiece, it’s not necessarily determinative of the fact that that would slick out child support, because one party may have substantially higher income than the other.
MS. THOMPSON: Yes, Your Honor, but, additionally, because of the special needs of the second- child, it’s my understanding that he does receive a check from the government for a disability.
CHANCELLOR SHANDS: Okay. All right. So .the issues before the Court today that you’re asking the Court to decide is the custody and for the purpose of what we call the paramount care, custody and control of the minor child, because with the fact that we have one party a resident of Minnesota and one party a resident of Mississippi, the fact of the matter is, however this goes, one party will have custody during the school months, and one party will have custody during the non-school months, so by virtue of the fact that we have such a widespread difference, we’re 'not going to be able to follow the Farese schedule of visitation.
In his bench ruling, the chancellor stated:
But the parties stipulated prior to beginning the case that it would be in the best interest and welfare of Kendra to live with her father and that that constituted a substantial and material change in which the Court could modify that decree and did so.
The only issue before the Court, really, was the custody of J.J., whose real name is Louis Lamont Harper, II, [sic] and then concurrent with that, the issue of support for both children.
It having been stipulated that there are material and substantial changes which merits a revistation of the issue of custody with regard to the minor child, and, principally, because the older sibling, Kendra, would be moving back with her father to Mississippi, then the Court really goes directly to the Albright Factors.

¶24. The chancellor, and the majority have indicated that a stipulation as to a material change in circumstances regarding one child is applicable to both of the children concerned. Because I believe that to be an incorrect position, I dissent.

¶ 25. This Court has held that a modification of custody is proper only when there has been a material change in circumstances, which impacts the best interest of the child. Marter v. Matter, 914 So.2d 743, 746 (¶ 8) (Miss.Ct.App.2005). This clearly refers to the individual child for whom a change in custody is sought, and therefore requires that the material change in circumstances be shown to impact the child for whom a custody modification is sought, rather than his or her siblings. The existence of a material change in circumstances must be addressed prior to any possible consideration of custody. Id. (¶ 7)

¶ 26. The chancellor failed to address the question of a material change in circumstances impacting J.J. The majority attempts to cover over this defect by saying, “We hold that the parties stipulated to the fact that there was a material and substantial change in circumstances.” A reading of the record shows beyond question that the majority’s claim of a stipulation as to a material change in circumstances is only half accurate. What is omitted from the majority’s finding is that the stipulation related only to the older child, Kendra.

¶ 27. Because the chancellor failed to address the question of any material change in circumstances impacting J. J., he committed error by ordering a change in custody. I would therefore reverse and remand.

SOUTHWICK, IRVING AND GRIFFIS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Charles R. McLENDON and Anne R. McLendon, Appellants v. COPIAH FOREST PRODUCTS, INC., Appellee.
    No. 2004-CA-02557-COA.
    Court of Appeals of Mississippi.
    April 11, 2006.

      Dale F. Schwindaman, Jackson, attorney for appellants.
    Christopher Andrew Arledge, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Copiah Forest Products, Inc. (“Copi-ah”) successfully brought suit for adverse possession against Charles R. McLendon and Anne R. McLendon (“the McLen-dons”) for a disputed strip of land, though the trial court dismissed its trespass claim against the McLendons. Aggrieved by the decision, the McLendons appeal. Finding no error, we affirm.

FACTS

¶ 2. The McLendons hold record title to a sixty-five-foot-wide, 1,060.5 foot-long (1.53 acres in total) strip of land in Copiah County, adjacent to a forty-acre tract which the McLendons also own. On December 22, 1992, Copiah purchased a tract of land adjacent to the McLendon tract with a common border with the McLendon tract measuring 1,060.5 feet. Prior to Co-piah’s purchase of the land, it had been owned by Ayers Bishop since 1950. There was no distinguishable boundary line dividing the Bishop/Copiah property from the McLendon property until the mid 1980s, when Charles R. McLendon built a fence along the western boundary of the disputed strip. Though an exact date of the building of the fence could not be discerned, it was in place at least prior to June 25, 1986. Once the fence was built, Bishop and the McLendons treated the fence line as the actual boundary line between the tracts. On June 25, 1986, Charles R. McLendon made a timber conveyance, specifically stating in the timber deed that the area to be cut lay within the fenced area. All witnesses at trial agreed that the timber was only cut up to the fence coming from the west. On April 22, 1987, Bishop conveyed his timber to Copi-ah, and all witnesses at trial agreed that the timber was to be cut up to the fence coming from the east. Additionally, Charles R. McLendon stated at trial that he was aware that Copiah had cut timber up to the fence coming from the east, but did nothing about it. Consequently, Copi-ah asserted at trial that adverse possession began, at a minimum, on or about April 22, 1987. After the conveyance of the Bishop property to Copiah in 1992, Copiah continued to use the land as timberland by burning the property, putting in a fire lane, and planting trees in 1995, chopping timber on the property, spraying poison to kill undesirable plant life, and periodically inspecting the land. In 2002, Charles R. McLen-don went to' the office of Craig Pyron, one of Copiah’s owners, and asked him to sign an easement allowing Southwest Mississippi Electric Power Association (“SWEPA”) to run a power line down the fire lane immediately adjacent to the fence on the east side. Copiah refused this easement. In September 2002, the McLendons had SWEPA bulldoze and clear a sixty-five-foot strip of land running down the east side of the fence and install a power line on that strip. When Copiah discovered this, it filed the present lawsuit for title by adverse possession, including a trespass claim against the McLendons. It is not disputed that Copiah’s sole claim to the disputed strip of land is through adverse possession. The trial court found by clear and convincing evidence that Copiah and Copiah’s predecessor, Ayers Bishop, had obtained a valid fee simple title to the disputed strip of land by adverse possession for a period of more than ten years in full compliance with Mississippi Code Annotated § 15-1-13 (Rev.2003) and applicable Mississippi case law. Specifically, the court found that Copiah and Bishop’s adverse possession was actual, open, notorious, continuous, uninterrupted, visible, hostile, exclusive, under claim of ownership and peaceful for a period of more than ten years, in accordance with Mississippi law. The court dismissed the trespass claim against the McLendons with prejudice. Aggrieved, the McLendons appeal, asserting: (1) that Copiah did not prove by clear and convincing evidence all six elements necessary to establish entitlement by adverse possession; and (2) that the trial court erred by failing to rule that the necessary ten-year period of adverse possession had not, as a matter of law, been satisfied.

STANDARD OF REVIEW

¶ 3. This Court will not disturb a chancellor’s findings of fact when supported by substantial evidence, unless there is a reasonable certainty that the chancellor was manifestly wrong, applied an erroneous legal standard, or abused his discretion. Nosser v. B.P. Buford, 852 So.2d 57, 60(¶ 11) (Miss.Ct.App.2002) (citing Morgan v. West, 812 So.2d 987, 990(¶ 7) (Miss.2002)). When dealing with questions of law, this Court applies a de novo standard and will only reverse for erroneous interpretation or application of law. Morgan, 812 So.2d at 990(¶ 8) (citing Bank of Mississippi v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992)).

ISSUES AND ANALYSIS

I. Whether Copiah met its burden of proof in establishing entitlement by adverse possession.

¶ 4. In a suit for title by adverse possession, the claimant has the burden of proving by clear and convincing evidence that the possession was: “(1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Robertson v. Dombroski, 678 So.2d 637, 642 (Miss.1996) (citing Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152-53 (Miss.1992)). “[B]oth the quality and quantity of the possessory acts necessary to establish a claim for adverse possession may vary with the characteristics of the land.” Nosser, 852 So.2d at 60(¶ 13) (citing Johnson v. Black, 469 So.2d 88, 90 (Miss.1985)). The polestar question is whether the possessory acts by the adverse possessor sufficiently put the record title holder on notice that the property is held under an adverse ownership claim. Id. (citations omitted).

¶ 5. In the case sub judice, there was substantial evidence supporting each of the above elements. The record showed evidence that the McLendons built a fence on the western edge of the disputed strip, and that Copiah later, in 1987, cut timber all the way up to that fence coming from the eastern side. There was further evidence in the record that Charles R. McLendon was aware of the cutting of that timber. Furthermore, it was stipulated at trial that the McLendons had record title to the property at the time that timber was cut. There was evidence that Copiah cut this same strip of land again later. There was further evidence that Copiah burned vegetation, installed a fire lane around the perimeter of the property, replanted trees, and sprayed chemicals in the area by helicopter. As the chancellor stated below, these things certainly rise to the level of being open, notorious and visible. Furthermore, the fact that these actions were taken despite the fact that the McLendons held record title at all pertinent times certainly shows that the actions were hostile.

¶ 6. As for being under claim of ownership, the activity on the land as early as 1987, when Bishop still owned the land, demonstrates that both Copiah and its predecessor, Bishop, exercised claims of ownership so as to put the McLendons on notice. Furthermore, the deed conveying the Bishop property to Copiah contained a coverall clause which stated, “It is further the intention of the Grantor to convey all property he owns in Section 36, Township 10 North, Range 6 Easy, Copiah County, Mississippi.” The chancellor stated in his ruling that this clause “contemplates ownership of something over and above that described in the actual deed.” Consequently, we cannot say that the chancellor lacked a substantial evidentiary basis in finding that the property was under claim of ownership by Copiah.

¶ 7. As to exclusivity, peacefulness, continuity and uninterruptedness, the chancellor stated, and we agree, that there was no evidence whatsoever of “any interruption in the activity of Mr. Bishop on the property at least since 1987 when the timber was cut by Copiah Forest Products.” Further, there was no evidence that the possession was not peaceful and continuous, as well as exclusive. The chancellor further stated that any utilization of the property by the McLendons was simply permissive, as exemplified by Charles R. McLendon’s testimony concerning an agreement between he and Craig Pyron that McLendon would maintain the fire lane around the property for hunting purposes.

¶ 8. As to the ten-year time period requirement, Mississippi Code Annotated § 15-1-13(1) (Rev. 2003) states, in pertinent part:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title....

Copiah, at the behest of Ayers Bishop, was cutting timber on the disputed strip as early as 1987. The rule of “tacking” as applied to adverse possession clearly allows the time period the property was adversely possessed by Bishop to combine with the time it was adversely possessed by Copiah in order to meet the statutory time period, as the parties were in privity. See Buford v. Logue, 832 So.2d 594, 606(¶ 43) (Miss.Ct.App.2002) (citing Rutland v. Stewart, 630 So.2d 996, 999 (Miss.1994)). Because there was evidence that the McLendons were aware of adverse activity on the disputed land as early as 1987, we find that there was sufficiently substantial evidence to support the chancellor’s finding of satisfaction of the time period element.

¶ 9. We have been presented with no meritorious arguments that the chancellor’s decision lacked a substantial eviden-tiary basis, was based on an abuse of discretion, was manifestly wrong, or applied an erroneous legal standard. As a result, we affirm the decision of the chancery court.

II. Whether the trial court erred in its ruling concerning the ten-year time period necessary for adverse possession.

¶ 10. For the reasons discussed above, this assignment of error is without merit.

¶11. THE JUDGMENT OF THE CHANCERY COURT OF COPIAH COUNTY 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 ROBERTS, JJ., CONCUR.

      . The extent of Copiah's burning and chopping were contested at trial.

      . SWEPA was originally a co-defendant, but settled with Copiah prior to trial.


author: SOUTHWICK, J„

text:
    Leslie Kevin ETHRIDGE, Appellant v. Angela Godwin ETHRIDGE, Appellee.
    No. 2005-CA-00049-COA.
    Court of Appeals of Mississippi.
    April 11, 2006.

      J. Stewart Parrish, attorney for appellant.
    P. Shawn Harris, Forest, attorney for appellee.
    Before KING, C.J., SOUTHWICK and BARNES, JJ.
   SOUTHWICK, J„

for the Court.

¶ 1. The former husband appeals from the decision of a chancellor in a divorce action. He alleges error in the award of custody of the children of the marriage to their mother, a failure of the lower court to follow the recommendations of the guardian ad litem, and an inequitable division of the marital assets. We disagree with these contentions and affirm.

FACTS

¶ 2. Kevin and Angela Ethridge were married in 1990. In March 2003, Mr. Eth-ridge filed in Clarke County, Mississippi for a divorce and sought certain temporary relief. The chancellor granted temporary exclusive custody of the couple’s three children to Mrs. Ethridge. Their father was granted visitation rights. Following this decision, Mr. Ethridge amended his complaint to include habitual drug use by Mrs. Ethridge as an additional ground for divorce.

¶ 3. A guardian ad litem was appointed in February 2004. Mr. and Mrs. Ethridge entered into a consent to divorce in August 2004. They agreed to various divisions of real and personal property and to the means of providing insurance for their children. The remaining issues were the subject of a trial and of this appeal.

¶4. In October 2004, the guardian ad litem filed his report with the trial court. Mrs. Ethridge was found to be derelict in her duties as a parent due to improper maintenance of the home, absences which left the oldest child in charge of the younger two, and drug use with a boyfriend who regularly spent time with Mrs. Eth-ridge and the children. The report recommended that custody be awarded to Mr. Ethridge if these behaviors were substantiated at trial.

¶ 5. Following a four-day trial in November 2004, the chancellor granted a divorce on the ground of irreconcilable differences. Custody of the three children was given to their mother, with the father having visitation. The chancellor awarded land and a house in Newton County to Mr. Ethridge and land and a mobile home in Clarke County to Mrs. Ethridge. Each spouse was ordered to assume the debt on the motor vehicle he or she was then using. Mrs. Ethridge received sole use and ownership of a utility trailer that had been purchased and used by her husband during the marriage.

Issue 1. Application of the Albright factors in child custody decisions.

¶ 6. The chancellor awarded sole custody of the children to Mrs. Ethridge, and allowed Mr. Ethridge significant visitation. Mr. Ethridge argues that the chancellor did not properly apply the factors that are to be considered in reaching such decisions. The Mississippi Supreme Court has listed twelve factors to guide lower courts in determining the best interests of the child in custody disputes. Albright v. Albright, 437 So.2d 1003 (Miss.1983). None should be considered superi- or to any other in terms of weight, nor is the final conclusion a mathematical one arising from the number of factors that are found to favor each parent. Id.

¶ 7. The chancellor devoted five pages of a thirty-three-page opinion to discuss each factor. He characterized the utility of the factors in an insightful manner: “[t]his court does not perceive that the Albright factors are a formula to determine custody. They are factors for the Chancery Court to consider in determining the best interest of a child and accordingly determine custody.”

¶ 8. Mr. Ethridge relies on one of our prior decisions in his argument that error occurred in the determination of custody. Watts v. Watts, 854 So.2d 11 (Miss.Ct.App.2003). There we noted that when reviewing custody decisions, we examine the record relevant to each factor in order to determine if there is support for the decision. As an example of a chancellor’s giving improper weight to one factor, our Watts decision cited Hollon v. Hollon, 784 So.2d 943 (Miss.2001). There, the Supreme Court found that the chancellor allowed the “moral fitness” factor of Al-bright to dominate the decision. Moral fitness of the mother could properly be questioned but could not outweigh all other evidence of the mother’s fitness to raise the child. Hollon, 784 So.2d at 950, citing Roberson v. Roberson, 370 So.2d 1008, 1011 (Ala.Civ.App.1979) (“a mother will not be denied custody for every act of indiscretion or immorality,” especially where no detrimental effect on the welfare of the child has been shown); Rippon v. Rippon, 64 Ill.App.3d 465, 21 Ill.Dec. 135, 381 N.E.2d 70, 73 (1978) (“indulgence in moral indiscretions alone is not grounds for a change of custody where the children are leading a normal life”).

¶ 9. Mr. Ethridge alleges that his ex-wife is morally unfit as a parent due to her relationship with a boyfriend and due to alleged drug abuse. The chancellor addressed this issue in his opinion, finding that the moral fitness and home stability factors of Albright did, in fact, favor Mr. Ethridge. Though these factors weighed against Mrs. Ethridge, they were not alone determinative of child custody. There was no substantial evidence that Mrs. Ethridge used illegal drugs, but only that a boy-Mend—who apparently was awaiting sentencing for a conviction—did so.

¶ 10. The chancellor made a reasonable analysis of the evidence, found the evidence to raise concerns about the moral fitness of the mother, took steps that we will discuss below to reduce the effect of those concerns, and on balance found that the totality of the evidence supported giving custody to the children’s mother. We find no error in that.

Issue 2. The report of the guardian ad litem.

¶ 11. The guardian ad litem found that Mr. Ethridge should be awarded custody of the children if Mrs. Ethridge’s relationship with a supposed drug user was not altered. In response, the chancellor found the concerns of the guardian ad litem to be “well-founded” and ordered Mrs. Ethridge not to have custody of her children “in the presence of any male to whom she is not married or related between 10:30 p.m. and 7:00 a.m. on the following day.”

¶ 12. Mr. Ethridge argues that the chancellor failed adequately to explain his reasons for denying him custody of the children, despite “substantiation” of Mrs. Ethridge’s drug use and her “refusal” to terminate the relationship with her boyfriend.

¶ 13. Mr. Ethridge correctly refers to the guardian ad litem’s report as a “recommendation.” It is not binding on the chancellor, but it must be considered. The chancellor only referred explicitly to the guardian ad litem’s report one time in his opinion, but we find that the significant findings and recommendations of the report were fully addressed in the chancellor’s decision.

¶ 14. The chancellor must support his findings if he does not adopt the recommendations of the guardian ad litem. In re L.D.M., 848 So.2d 181, 183 (Miss.2003). Here, the chancellor specifically addressed the issue raised by the guardian ad litem and made suitable allowances for the concerns raised. There was no error.

Issue 3. Equitable division of the marital estate.

¶ 15. In dividing the marital estate, the chancellor granted Mrs. Ethridge exclusive possession and ownership of a utility trailer. Mr. Ethridge alleges that the history of use and need favored him for award of the trailer. He also argues that the chancellor did not adequately explain his decision.

¶ 16. In the chancellor’s lengthy opinion, almost no discussion of the trailer appears. The simple statement is made that the former wife would be granted ownership and the exclusive use of the trailer. Mr. Ethridge argues that the Supreme Court requires when property is being distributed among former spouses in a divorce, that certain factors be analyzed. Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). In Mr. Ethridge’s view, Ferguson establishes these four steps in a property distribution decision: (1) classify assets as marital or separate; (2) value assets; (3) divide marital property equitably, based on the factors set out in the decision, and (4) award alimony if need after the asset division. The trial court did not discuss these steps on the record.

¶ 17. Even though the chancellor did not organize his written findings in this way, we find that the facts of this case made the direction of those four steps self-evident. There was no issue about classifying this trailer as a marital as opposed to an individual asset of one of the parties. The utility trailer was purchased by Mr. Ethridge and at the time of the final hearing was in his possession. Still, he agreed to classify it as a marital asset. In the pretrial order the trailer was said to “belong to the parties,” and the chancellor was to award ownership based on “relative need of the parties and custom and history of use” of the trailer. This pretrial provision set the terms for the decision that the chancellor was to make. There was little need to place a value and then divide the marital assets since this trailer was the only item of tangible personal property that the chancellor was asked to distribute. Among other considerations in Ferguson for making distributions are such issues as the tax consequences and the needs for financial security which could be affected by the distribution. Ferguson, 639 So.2d at 928. Those are irrelevant here.

¶ 18. Trying to force every property distribution decision into the framework of a pre-ordained set of factors is not suitable. As was said in the context of a custody question, “Chancellors are not supposed to be automatons, mindlessly applying by rote multi-part tests handed down from above.” McRee v. McRee, 723 So.2d 1217, 1220 (Miss.Ct.App.1998). The Ferguson court itself stated that it could not possibly “contemplate every situation that may present itself in future cases.” Ferguson, 639 So.2d at 930. The Supreme Court has sometimes held that as to the difficult decisions on custody, alimony, and property distribution to be made in many divorces, a chancellor must provide on-the-record findings as to each of the factors identified in its precedents. See Burge v. Burge, 851 So.2d 384, 390 (Miss.Ct.App.2003) (Southwick, P.J., concurring). In other decisions, the Supreme Court has shown more flexibility. Id.

¶ 19. There is little evidence on the past use of the trailer. The spouses did not testify about the circumstances of the acquisition and use of the trailer in the same way. They did agree, though, to have the judge allocate this marital asset. Mr. Eth-ridge testified that he has possessed the trailer for two years and had never known Mrs. Ethridge to use the trailer. However, once the spouses were divorced, and with their daughter Patience needing a trailer to care properly for her horse, Mrs. Ethridge as the custodial parent would need to assume new responsibilities. Mr. Ethridge stated that he would use the trailer for various tasks unrelated to his daughter’s horse. Mr. Ethridge believes that Mrs. Ethridge could borrow a trailer from her siblings. Implicit in this assertion of an alternative for his ex-wife, though, is that Mrs. Ethridge will need a trailer.

¶ 20. Most of the time, the Ferguson considerations should, be examined on the record. However, the only real question as to this simple and single item of property was an equitable one as to which former spouse was more in need of the trailer based on its use during the marriage. In this unusual case of there being only one piece of personal property to divide, with the central evidence on use and need for the trailer being clear, with the parties’ written pretrial agreement that prior use and relative need would control the allocation, we conclude that the failure to make the decision in the terminology and with the citations of precedents such as Ferguson to be of no consequence. The chancellor allocated this marital asset based on the pretrial order, which classified it as a marital asset, and he relied on the evidence of the manner in which each spouse and the children would need to use the trailer. There was nothing inequitable about the chancellor’s finding with regard to the utility trailer, let alone reversible.

¶ 21. We also note, though, that chancellors should continue to articulate on the record their analysis of the guidelines set out in the Supreme Court precedents regarding the allocations and awards required for a divorce. Most of the time, the absence of those findings would transform the deferential appellate review of a chancellor’s decision into guesswork. Here, we do not need to speculate as to the reasons for the allocation of this property, and we find no error.

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

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


author: BARNES, J.,

text:
    Debra Fay VAUGHN, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00978-COA.
    Court of Appeals of Mississippi.
    April 11, 2006.

      David Clay Vanderburg, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   BARNES, J.,

for the Court.

¶ 1. Debra Fay Vaughn appeals her conviction in the Circuit Court of DeSoto County for aggravated assault, assigning as error the trial court’s failure to issue a peremptory instruction regarding self-defense. Throughout the trial, Vaughn contended that she stabbed Lashondra Taylor in self-defense; however, the jury rejected Vaughn’s contention and found her guilty of aggravated assault. Finding no error in the trial court’s refusal to grant a peremptory instruction, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On June 14, 2004, Vaughn arrived at her temporary residence with Kenivel Smith in Southaven, Mississippi, and was alerted that Smith had another female visitor. Upon entering the house, Vaughn discovered Lashondra Taylor, Smith’s girlfriend, and requested that she leave the house. Apparently, Vaughn and Taylor had a stormy relationship, and a verbal altercation immediately erupted when Vaughn entered the bedroom. Knowing of the violent history between Vaughn and Taylor, Smith attempted to separate the two women before the verbal altercation escalated. However, once the two women entered the kitchen, Vaughn stabbed Taylor twice with a kitchen knife, once in the shoulder and once in the neck. At trial, Vaughn, one of her children, and one of her niece’s children alleged that Taylor struck Vaughn with a closed fist prior to the stabbing. Moreover, the children and Vaughn alleged that, following the stabbing, Taylor exited the house to retrieve a gun while stating that she was going to kill Vaughn. However, Smith and Taylor left the house in Taylor’s car and proceeded to the nearest hospital. No firearm was recovered from Taylor, Taylor’s car, or Smith’s house.

¶ 3. Following a one-day trial with five witnesses, the jury returned a guilty verdict to the charge of aggravated assault against Vaughn. Vaughn was thereafter sentenced to a term of eight years in the custody of the Mississippi Department of Corrections, with three years to serve followed by five years of post-release supervision. Additionally, the court ordered Vaughn to pay restitution and court costs and to attend a program on anger management. Vaughn appeals the jury verdict and asserts one assignment of error: that the trial court erred in denying her request for a peremptory instruction, as the jury’s guilty verdict was contrary to the overwhelming weight of the evidence.

STANDARD OF REVIEW

¶ 4. “The standard of review for a denial of a directed verdict, peremptory instruction, and a JNOV are identical.” Hawthorne v. State, 835 So.2d 14, 21(31) (Miss.2003). A motion for a directed verdict and a request for a peremptory instruction challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The Court reviews the trial court’s finding regarding the sufficiency of the evidence at the time the motion for a directed verdict or peremptory instruction is overruled. Holloman v. State, 656 So.2d 1134, 1142 (Miss.1995). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843(16) (Miss.2005). However, a motion for a new trial challenges the weight of the evidence. Hawthorne, 835 So.2d at 21. When reviewing a denial of a motion for a new trial, this Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844(¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

I. WHETHER THE TRIAL COURT ERRED IN DENYING VAUGHN’S MOTION FOR A PEREMPTORY INSTRUCTION.

¶ 5. Following the close of the State’s case, Vaughn’s attorney moved for a directed verdict, stating, “We feel the state has failed to prove the essential elements of aggravated assault.” The State responded that it had met its burden, as it had provided evidence that Vaughn stabbed Taylor, caused serious injury to Taylor, and caused the injury through use of a deadly weapon. The court denied Vaughn’s motion for directed verdict, stating that “the testimony of the victim was that the Defendant did stab her. There is corroboration from the officer who saw the injuries and the photographs. Certainly, the court feels adequate proof, as regards to the directed verdict, that the burden has been met by the State.” Subsequently, the defense rested, and the court heard arguments regarding jury instructions. Specifically, the defense renewed its argument for directed verdict. The trial court treated the motion as a peremptory instruction and denied the instruction.

¶ 6. Vaughn’s argument centers on her self-defense claim. Vaughn contends that the trial court should have granted a directed verdict or issued a peremptory jury instruction based upon her evidence of self-defense. However, as stated earlier, all evidence is viewed in the light most favorable to the State when reviewing such a motion. Bush, 895 So.2d at 843. Therefore, if there is sufficient evidence to support the jury verdict, the motion for a directed verdict and a request for a peremptory instruction should be overruled.

¶ 7. In order to establish that Vaughn committed aggravated assault, the State was required to prove that Vaughn purposely or knowingly attempted to cause or caused bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm. Miss.Code Ann. § 97-3-7(2) (Rev. 2004). We find that the State presented credible evidence that Vaughn knowingly stabbed Taylor with a knife causing serious bodily injury to Taylor. In fact, Vaughn did not dispute that she knowingly stabbed Taylor. In Vaughn’s signed, typewritten statement that was admitted into evidence, she stated, “I saw a knife on the kitchen table, the blade was about 4 inches long and the handle was about 4 or 5 inches long. I then stabbed [Taylor], I am not sure where I stabbed her but Latasha, my oldest daughter told me she was bleeding.” Therefore, the State met its burden of proving the assault as the evidence was clearly sufficient to sustain a finding by a reasonable juror that Vaughn did not stab Taylor in self-defense. Vaughn’s self-defense theory went toward the jury’s determination as to whether reasonable doubt existed. Smith v. State, 754 So.2d 1159, 1164(15) (Miss.2000). The jury obviously found that Vaughn’s self-defense contention did not create reasonable doubt.

¶ 8. First, Taylor testified that she did not strike Vaughn and that she (Taylor) did not possess any weapon on the day in question. The jury had every right to believe Taylor’s testimony instead of Vaughn’s. Even taking Vaughn’s description of the incident as true, the jury still had sufficient evidence to sustain the conviction. More specifically, assuming Vaughn’s version of the altercation was true and that Taylor did strike Vaughn prior to the stabbing, a reasonable, hypothetical juror could still reject Vaughn’s self-defense claim after assessing the reasonableness of Vaughn’s apprehension of the events. In other words, the jury could have found that Vaughn was not in imminent danger and used more force than reasonably necessary to repel Taylor’s assault. Therefore, Vaughn’s argument that the jury did not have sufficient evidence to convict Vaughn of aggravated assault is without merit.

¶ 9. As to Vaughn’s challenge to the weight of the evidence, this Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844(¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). Once again, the jury was entitled to weigh the credibility of each witness. The court in Bush noted:

We have stated that on a motion for a new trial, the court sits as a thirteenth juror. The motion however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.

Id. Vaughn has failed to overcome this burden. Specifically, the State provided ample evidence that Vaughn’s attack was not in self-defense. Vaughn has not established that her evidence “preponderates heavily against the verdict.” Id. As such, this issue is without merit.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THREE YEARS TO SERVE AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND RESTITUTION OF $3,860 AND $100 TO THE CRIME VICTIMS COMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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

      . Vaughn and Taylor both claimed to be Smith’s girlfriend at the time of the assault. Vaughn temporarily resided with Smith and was the mother to one of Smith's children. However, Smith slept at Taylor's house on the night before the incident.


author: GRIFFIS, J.,

text:
    CLEAR RIVER CONSTRUCTION COMPANY, a Member of the BCAM Self-Insurers’ Fund, Inc., Appellant/Cross-Appellee v. James Wesley CHANDLER, Deceased, by and Through Margaret CHANDLER, Dependant Appellee/Cross-Appellant.
    No. 2005-WC-00290-COA.
    Court of Appeals of Mississippi.
    April 11, 2006.

      Amy Lee Topik, Ridgeland, attorney for appellant.
    David N. Gillis, Jackson, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. We consider this apportionment of benefits appeal from the Mississippi Workers’ Compensation Commission. The Commission adopted the decision of the administrative law judge (“ALJ”) and apportioned benefits at twenty-five percent.

¶ 2. The employer, Clear River Construction Company, Inc. (“Clear River”), appeals that decision and claims that the Commission was in error in granting only a twenty-five percent apportionment of benefits based on the medical evidence of severe pre-existing coronary disease.

¶ 3. Margaret Chandler, the widow of James Chandler, cross-appeals and raises two issues. First, she claims that no apportionment of death benefits was warranted. Second, she claims that she was entitled to penalties and interest on benefits and medical expenses the employer/carrier did not timely pay.

FACTS

¶ 4. James Wesley Chandler began working for Clear River in March of 1990. Chandler continued to work, as a full time mechanic, until his death at the age of fifty-nine. On October 26, 2000, James collapsed while at a job site. He was pronounced dead later that day. Margaret Darlene Chandler was the sole dependent.

¶ 5. An autopsy was ordered by the Hinds County Coroner. The autopsy determined that the cause of death was an acute myocardial infarction, a heart attack. The autopsy revealed that Chandler’s three major arteries were narrowed, with one having a clot that had formed very recently.

¶ 6. Mrs. Chandler filed a claim for workers’ compensation benefits. After a hearing, the ALJ ordered benefits be paid, pursuant to Mississippi Code Annotated Section 71-3-25 (Rev.2000), as follows: (1) an immediate lump sum of Two Hundred Fifty Dollars; (2) reasonable funeral expenses not exceeding Two Thousand Dollars, exclusive of other burial insurance or benefits; (3) twenty-six percent of Chandler’s average weekly wage of $659.93 during the widowhood or dependant widowhood, not to exceed the maximum limitations as to weekly benefits, with penalties and interest; and (4) all reasonable and necessary medical expenses incurred as a result of Chandler’s work injury.

¶ 7. In an opinion signed by Chairman Ben Barrett Smith and Commissioner Lydia Quarles, the Commission affirmed the ALJ’s order. Commissioner Barney Scho-by dissented and concluded that benefits should not be apportioned. Commissioner Quarles also filed a separate concurring opinion. Commissioner Quarles opined that she would concur with Chairman Smith. However, she would not have apportioned the case as did the administrative law judge. Commissioner Quarles analysis of the evidence led her to the conclusion that the ALJ disregarded certain credible medical testimony. Commissioner Quarles stated that she believed that the proper apportionment was twenty-five percent work related and seventy-five percent attributable to Chandler’s preexisting condition.

¶ 8. On appeal, the Circuit Court of Madison County affirmed the Commission.

STANDARD OF REVIEW

¶ 9. An appellate court must defer to an administrative agency’s findings of fact if there is even a quantum of credible evidence which supports the agency’s decision. Hale v. Ruleville Health Care Center, 687 So.2d 1221, 1224 (Miss.1997). “This highly deferential standard of review essentially means that this Court and the circuit courts will not overturn a Commission decision unless said decision was arbitrary and capricious.” Id. at 1225; Georgia Pacific Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991). This court will overturn a commission decision only if there has been an error of law. Id.

¶ 10. We do not sit as triers of fact; that is done by the Commission. South Central Bell Telephone Co. v. Aden, 474 So.2d 584, 589 (Miss.1985). We do not review the facts on appeal to determine how we would resolve the factual issues were we the triers of fact, rather our function is to determine whether the factual determination made by the Commission is supported by substantial credible evidence. Id.

ANALYSIS

¶ 11. We begin our analysis with our review of the decision to apportion benefits. Apportionment is a term for the reduction in benefits due to a preexisting condition. The primary question here is whether the Commission correctly applied the apportionment provision, pursuant to Mississippi Code Annotated Section 71-3-7 (Rev.2000), which provides in part:

[w]here a preexisting physical handicap, disease, or lesion is shown by medical findings to be a material contributing factor in the results following injury, the compensation which, but for this paragraph, would be payable shall be reduced by that proportion which such preexisting physical handicap, disease, or lesion contributed to the production of the results following the injury.

¶ 12. In Cockrell Banana Co. v. Harris, 212 So.2d 581 (Miss.1968), the supreme court attempted to clarify several substantive and procedural issues on which the existing statute gave no guidance and prior decisions were discordant. 9 John R. Bradley and Linda A. Thompson, Workers’ Compensation Law, Encyclopedia of Mississippi Law § 76:88 (Jeffery Jackson & Mary Miller ed.2002). Shortly after the Cockrell Banana decision, the Mississippi Legislature codified the ruling word for word as the four lettered paragraphs in Section 71-3-7. Id.

¶ 13. More than twenty years later the supreme cburt again attempted to clarify the interpretation of the apportionment statute in Stuart’s Inc. v. Brown, 543 So.2d 649 (Miss.1989). However, the court stated that Stuart’s Inc. “does not address ‘occupational disease’ or heart attack cases. Indeed, heart attack cases seem sui generis." Id. at 655.

¶ 14. Next, in Hardin’s Bakeries v. Dependent of Harrell, 566 So.2d 1261, 1262 (Miss.1990), Harrell was delivering bread when he experienced chest pains. Harrell was admitted to the hospital with an- admitting diagnosis of “unstable angina, rule out recent myocardial infarction.” Id. Further tests revealed that Harrell was not experiencing a heart attack; however, a chest x-ray revealed lesions on Harrell’s lungs. Id. A week later, Harrell underwent a stressful bronchoscopy to determine if the lesions were cancerous. Id. Less than thirty minutes after the bron-choscopy was performed, Harrell went into cardiac arrest and died. Id. The final diagnoses were listed as cardiac arrest, myocardial infarction, and arteriosclerotic cardiovascular disease. Id. at 1262-63.

¶ 15. The ALJ awarded death benefits and apportioned the award by one-third on the basis of pre-existing or non-work related conditions. Id. The Commission affirmed the award of benefits but increased the apportionment to two-thirds. Id. The Commission’s decision was appealed to the circuit court, which affirmed the award of benefits, reversed the apportionment and awarded full benefits to the widow. The circuit court’s decision was finally appealed to the Mississippi Supreme Court. Id.

¶ 16. The supreme court found that “the problem inherent in an apportionment determination is evinced by the three different results reached in the case sub judi-ee” Id. at 1265. The supreme court found that, in light of the standard of review, the Commission’s fact-finding must remain undisturbed by the reviewing court if it is supported by substantial evidence, thus the Commission’s apportionment determination was reinstated. Id at 1266.

¶ 17. In Mitchell Buick, Pontiac and Equip. Co. v. Cash, 592 So.2d 978, 979 (Miss.1991), Cash was forced to leave work because he was experiencing a heart attack. Three years before the attack, Cash had been diagnosed as suffering from obstructive pulmonary disease and hypertension. Id. As a result of the heart attack, Cash was permanently and totally disabled. Id.

¶ 18. The ALJ denied compensation, and Cash appealed to the Commission. The Commission reversed the ALJ’s denial of compensation and remanded for a determination of the apportionment of benefits. Id. The ALJ again denied any compensation benefits and determined that Cash’s preexisting condition contributed one hundred percent towards his disability. Id. The Commission reviewed the ALJ’s determination and reversed the ruling. The Commission awarded Cash permanent total disability at the unapportioned rate of ninety-eight dollars ($98) per week, for just over four months, and then at the apportioned rate of twenty-five dollars ($25) per week, not to exceed the maximum limitations of 450 weeks. Id. This award was affirmed by the circuit court. The supreme court affirmed the Commission’s determination on the ground that it was not clearly erroneous and was supported by the evidence. Id. at 983.

¶ 19. These cases show that the application of this statute has been inconsistent. A case-by-case analysis indicates that these decisions are difficult to fit into a definite rule, which may be applied to all cases involving heart attacks. Vardaman S. Dunn, Mississippi Workers’ Compensation § 92 (3d ed.1990). Thus, we tend to uphold the decision of the Commission if it is supported by substantial evidence. Id. Ultimately, each case will have to be resolved on its own facts. Id.

¶ 20. The unique challenge of this case is that each of the three Workers’ Compensation Commissioners authored an opinion. Nevertheless, Chairman Smith and Commissioner Quarles signed the order that affirmed the ALJ’s decision to apportion benefits by twenty-five percent was reasonable. Commissioner Quarles was less than enthusiastic with the prospect of agreeing to affirm the ALJ’s apportionment amount. Nevertheless, Commissioner Quarles did in fact sign the order. Therefore, we must consider that decision as the order of the Commission, and we must give it the appropriate deference. Had Commissioner Quarles not signed the order, then the ALJ’s order would have been affirmed as a plurality decision of the Commission. The amount of deference given to a plurality decision of the Commission has not been addressed by the appellate courts of this state, and it is not before us to address today.

¶ 21. Our review is focused on whether the evidence supported the award of benefits at the rate of apportionment.

¶ 22. Dr. Thomas Skelton, board certified in internal medicine and cardiovascular diseases, testified for Clear River. Dr. Skelton reviewed the autopsy and death certificate. He was told that Chandler was an equipment supervisor for Clear River and that Chandler was supervising a job when he collapsed. Dr. Skelton testified that the autopsy findings were typical of one who had a heart attack. Dr. Skel-ton further testified that atherosclerosis, diagnosed by autopsy, is a disease which develops over many years and is caused by factors such as smoking, diabetes, high blood pressure, and high cholesterol. Dr. Skelton opined that atherosclerosis is not something that is caused by environmental, physical, or emotional stress. He further opined that the disease was not related to Chandler’s occupation. Dr. Skelton consistently stated that only extreme physical or sudden, extreme change environmental stress conditions could precipitate a cardiac event.

¶23. Dr. Charu Subramony, a board certified pathologist, performed the autopsy on Chandler the day following his death. Dr. Subramony testified that she examined his heart and the coronary arteries very carefully and found that all three vessels were diseased. In addition to the chronic disease, one vessel had a clot completely occluding the blood vessel. Dr. Subramony opined that the clot caused the heart to have conduction disturbances, which caused Chandler’s death.

¶ 24. In Dr. Subramony’s opinion, strenuous exercise could only have accelerated Chandler’s death. She testified to the physiological effects of exercise and exertion, and how these effects could hasten a heart attack in a patient with chronic atherosclerosis. Dr. Subramony also determined that the clot had formed only hours before Chandler’s death. She also testified that there was a mechanism of repair. The repair would start a few hours after the clot forms, once the clot attaches to the wall repair begins. Dr. Subramony did not find any evidence that the repair process had begun.

¶ 25. In addition to the medical testimony, Margaret Chandler testified that her husband was so tired after work everyday that he slept about an hour in his chair when he first arrived home. Then, he ate dinner, took a bath, and went straight to bed. Mrs. Chandler also testified that even though her husband’s work uniforms were commercially laundered, she still had to re-wash his clothes several times to get the dirt, tar, and tack out of his clothes. She testified that Chandler had never taken any medication for heart problems or complained of chest pains.

¶ 26. Carter Stewart testified for Chandler. Stewart was a self-employed trim carpenter who worked at the same site as Chandler the day he collapsed. Stewart testified that he saw Chandler and his crew cutting a trench with a jackhammer across the asphalt driveway to- install a sprinkler system. Stewart did not personally observe Chandler’s work on the job site that day, but he was aware of the work that Chandler and his crew was performing. Stewart clearly remembered that Chandler had on a work uniform that was heavily soiled with grease and dirt.

¶ 27. Stewart was working on the roof when he was told that a worker had collapsed. Stewart saw Chandler lying on the asphalt driveway unconscious and not breathing. Stewart performed mouth-to-mouth resuscitation while another worker did chest compressions on Chandler. They continued to perform CPR until the volunteer fire department arrived. Stewart testified that Chandler never regained consciousness on the site.

¶ 28. Paul Black testified for Clear River. Black was a division manager for Clear River and had worked there for five years. On the day Chandler collapsed, Black arrived on the job site about 10:00 or 10:30 a.m. He could not recall whether Chandler was already there or arrived later. Black did not know what Chandler did from 7:00 a.m. until they met in Madison. Black did not know what Chandler would have done that morning to get dirty, but he testified that Chandler could have handled mechanic duties or any other work earlier that morning. Black testified that Chandler was a hard worker and could have performed physical labor earlier that morning.

¶ 29. Black recalled that Chandler did not operate the jackhammer or dig the trenches, but rather Chandler was standing and observing the two laborers. Black did remember that Chandler picked up some chunks of asphalt and threw them into the truck.

¶ 30. Based on the evidence presented, the ALJ found that the preponderance of the credible evidence revealed that Chandler engaged in physical labor for Clear River prior to his collapse and death. The evidence indicated that Chandler’s work for Clear River was hard, physical labor and that Chandler was a hard worker. The medical evidence also indicated that Chandler suffered from coronary artery disease, and a clot formed in one of his vessels causing the heart attack.

¶ 31. The ALJ held that the preponderance of the relevant credible evidence indicated that Chandler’s heart attack and death arose out of and in the course of his employment. Therefore, it was a compen-sable injury. The ALJ determined that the benefits were to be apportioned, according to the statute, by twenty-five percent. The ALJ also determined that Mrs. Chandler was entitled to recover penalties and interest on any installments not timely paid.

¶ 32. We find no error in the Commission’s decision that Chandler’s benefits should be apportioned. Likewise, we find that substantial evidence supports the amount of the apportionment. As an appellate court, we may not reevaluate the evidence and substitute our decision for that of the Commission. Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988). Instead, this Court has a duty to defer to the Commission when its decision can be supported. Id. Although we may not agree with the percentage of apportionment, we find that there was substantial credible evidence to support the Commission’s decision.

¶ 33. Additionally, we affirm the Commissions’ grant of penalties and interest on benefits that were not timely paid.

¶ 34. Accordingly, we affirm.

¶ 35. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS AFFIRMED ON DIRECT APPEAL. ON CROSS-APPEAL, THE JUDGMENT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED IN EQUAL PARTS TO THE APPELLANT AND APPELLEE.

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


text:
    MesheL DAVIS-EVERETT, Appellant v. George DALE, Commissioner of Insurance, State of Mississippi, Appellee.
    No. 2005-CCC-00355-COA.
    Court of Appeals of Mississippi.
    April 11, 2006.

      Meshel Davis-Everett (pro se).
    Robert Louis Perkins, Kimberly Anne Gilmer, attorneys for appellee.
    Before SOUTHWICK, P.J., IRVING and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. In the Circuit Court of Rankin County, Meshel Davis-Everett appealed an administrative order by George Dale, Commissioner of Insurance for the State of Mississippi, suspending her from the bail bonding business for six months and imposing a $5,000 fine. The circuit court affirmed Dale’s order, and Davis-Everett now appeals. Finding no error, we affirm.

PACTS

¶ 2. On May 22, 2003, Dale, acting in his capacity as Commissioner of Insurance for the State of Mississippi and chief officer of the Mississippi Department of Insurance (“the Department”), issued a notice of hearing and statement of charges, pursuant to Mississippi Code Annotated Section 83-39-17 (Supp.2002), to Davis-Everett informing her that the Department intended to take action against her for violating Mississippi Code Annotated Section 83-39-15(e) (Supp.2002), which prohibits a bail bonding agency from employing a convicted felon. The notice stated that the action was based on Davis-Everett allowing her husband, Moses “Big Moe” Everett (undis-putedly a convicted felon), to participate or be associated in her bail bonding agency. Furthermore, she used his nickname, “Big Moe,” as the trade name for the business despite being warned not do so by the Department.

¶3. At the hearing on July 2, 2003, Davis-Everett gave testimony and submitted documentary evidence. The Department submitted into evidence two widely distributed telephone directories in which advertisements labeling Davis-Everett’s business as “Big Moe’s” appeared. Further, some of the advertisements included Moses “Big Moe” Everett’s full name. Also submitted was an affidavit by Kimberly Rideout, a deputy court clerk and dispatcher for the Pelahatchie Police Department, in which Rideout stated that Moses “Big Moe” Everett appeared alone at the Pelahatchie Police Department to procure the release of an arrestee through an appearance bond purportedly signed by Davis-Everett. Though Davis-Everett testified at the hearing that Moses “Big Moe” Everett was not involved in the particular arrestee’s release, Dale did not find such testimony to be credible. Davis-Everett further submitted into evidence a pre-printed bond application that, inter alia, contained in large, bold print the name Big Moe, as well as the full name, Moses “Big Moe” Everett, Jr. Dale entered an administrative order on July 14, 2003 suspending Davis-Everett from engaging in the bail bonding business for six months, as well as imposing a $5,000 administrative fine. He further ordered Davis-Everett to disassociate Moses “Big Moe” Everett from the business and to cease using the nickname in connection with the business. Aggrieved by Dale’s order, Davis-Everett appealed by writ of certiorari to the Circuit Court of Rankin County, which affirmed the administrative decision. Davis-Everett now appeals asserting, from what we can gather from her somewhat awkwardly written brief, the following issues: (1) whether the trial court erred by denying her a meaningful appellate review absent a complete transcript of the proceeding below; (2) whether the trial court denied Davis-Everett the right to cross-examine her “accuser”; and (3) whether the trial court erred in affirming Dale’s administrative decision.

STANDARD OF REVIEW

¶ 4. The standard by which this Court reviews the decisions of an administrative agency “is to determine whether the judgment (1) was supported by substantial evidence; or (2) was arbitrary or capricious; or (3) was beyond the power of the lower authority to make; or (4) violated some statutory or constitutional right of the complaining party.” Hill Bros. Constr. & Eng’g Co. v. Miss. Transp. Comm’n, 909 So.2d 58, 64(¶ 27) (Miss.2005) (citations omitted) (internal quotations omitted). There is a rebuttable presumption in favor of the administrative agency’s action, and the party challenging such action has the burden of proof. Id. (citing Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425(¶ 11) (Miss.2000)). Because of the faith we vest in the expertise of administrative agencies, we limit the scope of our judicial review of their decisions. Id. (citations omitted).

ISSUES AND ANALYSIS

¶ 5. “ ‘Pro se parties should be held to the same rules of procedure and substantive law as represented parties.’” Zimmerman v. Three Rivers Planning and Dev. Dist., 747 So.2d 853, 856 (¶ 6) (Miss.1999) (quoting Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987)). However, we will not discard a meritorious complaint simply because it is inartfully drafted. Zimmerman, 747 So.2d at 856(¶ 6). It is the duty of the appellant to provide authority in support of an assignment of error. Puckett v. State, 879 So.2d 920, 932(¶ 26) (Miss.2004). Failure to provide authority for an assignment of error operates as a procedural bar, and this Court will consider those unsupported issues to be abandoned. Id. The majority of Davis-Everett’s contentions are unsupported by authority, and thus will be considered abandoned by this Court. Even in those instances where authority is cited in Davis-Everett’s brief, it does not adequately support the majority of the arguments sets forth. Furthermore, Davis-Everett failed to raise in the court below the issues concerning the transcript and cross-examination of witness. Failure to object to an issue below operates as a waiver of the ability to assert the issue as error on appeal. Foley v. State, 914 So.2d 677, 689(¶ 26) (Miss.2005) (citing Duplantis v. State, 644 So.2d 1235, 1245 (Miss.1994)). As such, the only issues before this Court are whether Dale’s administrative order (1) was supported by substantial evidence; or (2) was arbitrary or capricious; or (3) was beyond the power of the lower authority to make; or (4) violated some statutory or constitutional right of the complaining party. Hill Bros. Const. & Eng’g Co., 909 So.2d at 64(¶ 27).

I.Whether Dale’s administrative order was supported by substantial evidence.

¶ 6. At Davis-Everett’s administrative hearing, the Department presented multiple phone directory advertisements for Davis-Everett’s bail bonding agency which bore the trade name “Big Moe’s Bail Bonding Agency” and even listed Moses “Big Moe” Everett’s full name. Further, the Department presented an affidavit by Kimberly Rideout stating that Moses “Big Moe” Everett appeared alone at the Pela-hatchie Police Department to secure, through an appearance bond, the release of an arrestee. Even the preprinted bond application presented at the hearing by Davis-Everett bore the trade name “Big Moe’s” and contained Moses “Big Moe” Everett’s full name. As a result, we find that Dale’s decision was supported by substantial evidence.

II.Whether Dale’s administrative order was arbitrary or capricious.

¶ 7. We next turn to whether Dale’s order was arbitrary or capricious.

“Arbitrary” means fixed or done capriciously or at pleasure. An act is arbitrary when it is done without adequately determining principle; not done according to reason or judgment, but depending upon the will alone, -absolute in power, tyrannical, despotic, non-rational, - implying either a lack of understanding of or a disregard for the fundamental nature of things. “Capricious” means freakish, fickle, or arbitrary. An act is capricious when it is done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles....

St. Dominic-Jackson Mem’l Hosp. v. Miss. State Dept. of Health, 910 So.2d 1077, 1082 (¶ 15) (Miss.2005) (citing Attala County Bd. of Supervisors v. Miss. State Dep’t of Health, 867 So.2d 1019, 1023-24 (¶ 18) (Miss.2004)). We cannot say that there is any evidence whatsoever that Dale’s administrative order was arbitrary or capricious according to the above definitions.

III.Whether Dale’s administrative order was beyond its authority.

¶ 8. This argument is completely without merit, as Mississippi Code Annotated Section 83-39-15 (Rev.1999) gives the Department explicit authority to “deny, suspend, revoked or refuse to renew ... the license of any person engaged in the business of professional bail agent, soliciting bail agent, or bail enforcement agent for [conviction of a felony].” Mississippi Code Annotated Section 83-39-9 (Rev.1999) further states:

No licensed professional bail agent shall have in his employ in the bail bond business any person who could not qualify for a license under this chapter, nor shall any licensed professional bail agent have as a partner or associate in such business any person who could not so qualify.

Thus, the administrative order was well within Dale’s authority as chief officer for the Department.

IV. Whether Dale’s administrative order violated some statutory or constitutional right of Dale-Everett.

¶ 9. Davis-Everett has failed to point out and support any violation of her statutory or constitutional rights as a result of Dale’s administrative order. Because Davis-Everett has failed to overcome the presumption that the administrative order was valid, we find that Dale’s decision and the decision of the Rankin County Circuit Court should be affirmed.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY AND FINE OF $5,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: ISHEE, J„

text:
    Claritha BROWN, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01331-COA.
    Court of Appeals of Mississippi.
    April 11, 2006.

      Boyd P. Atkinson, Cleveland, attorney for appellant.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.

      Before LEE, P.J., IRVING and ISHEE, JJ.
   ISHEE, J„

for the Court.

¶ 1. Claritha Brown was convicted in the Circuit Court of Bolivar County, Mississippi for burglary of a dwelling, robbery, kidnapping, and auto theft. Brown was sentenced to serve twenty years, with twelve years suspended, for burglary of a dwelling; fifteen years, with seven years suspended, for robbery; twenty years, with twelve years suspended for kidnapping; and five years for auto theft, with all sentences to be served concurrently in the custody of the Mississippi Department of Corrections, and to pay restitution in the amount of $40. Aggrieved by the judgment against her, Brown appealed. She raises the following issues for this Court’s review, which we list verbatim:

1. The trial court committed error in denying Appellant’s Motion for Directed Verdict because the prosecution failed to prove its case against the Appellant, and the verdict was against the overwhelming weight of the evidence, and the verdict evidences bias and prejudice against the Appellant and was based solely upon conjecture and speculation.
2. The trial court committed reversible error when not allowing testimony of drug activity conducted by one of the prosecuting witnesses.

FACTS

¶ 2. On the evening of March 31, 2004, Brown drove a gray car to the mobile home of Kevin McKnight and his girlfriend, Keichrese Thomas, in Cleveland, Mississippi. Brown pulled up to the property, but left without entering McKnight’s home. Later that evening, Brown returned. On her second visit to the McKnight property, Brown drove a burgundy Oldsmobile. She knocked on the door to the mobile home; McKnight opened the door and allowed her to enter. McKnight testified that after letting Brown into his home, he immediately locked the doorknob and closed the door. He then took a seat on ,the couch next to Thomas, and offered Brown a seat. Brown declined to sit down, and remained standing in the living room, facing McKnight and Thomas, with her back to the door. Thomas testified that she saw Brown’s hand on the doorknob.

¶ 3. Moments later, McKnight testified that he heard footsteps coming up the porch. As he looked out of the window to see who was coming, three armed and masked men entered his home. The intruders carried guns and wore black nylon stockings over their faces. McKnight testified that the men opened the door to his home without force, even though he was certain that he locked the door.

¶ 4. The masked men demanded money and the keys to Thomas’s Suburban, which was parked outside. As one of the men focused his attention on McKnight, hitting him on the head with his gun, Thomas attempted to ease away from the couch and move toward the back door. Thomas’s attempted escape was discovered, and one of the intruders ordered her to move away from the door. Another intruder grabbed Thomas by her hair and shoved her into the bathroom. While holding Thomas at gunpoint, the man ordered her to take off all of her clothes and to sit on the floor with her legs spread. Thomas complied with his order. Before anything could happen to her, the intruder heard a noise coming from somewhere else in the mobile home. He forced Thomas back into the living room, and ordered her to lie down on the floor next to Brown. Thomas testified that one of the men stood guard in the living room, as the other two men took McKnight into the bedroom and bound him to the bed with duct tape. Thomas never saw any of the men point a gun at Brown during the ordeal.

¶ 5. The intruders eventually left with $40 and Thomas’s Suburban. According to Thomas, Brown refused to help her untie McKnight. Both McKnight and Thomas testified that Brown left immediately after the intruders.

¶ 6. After an investigation, Brown was indicted in the Circuit Court of Bolivar County for burglary of a dwelling, robbery, kidnapping, and auto theft. A trial was held on May 24, 2004; the jury returned a guilty verdict on all counts of the indictment on May 26. The trial court denied Brown’s motion for judgment notwithstanding the verdict or, in the alternative, a new trial.

ISSUES AND ANALYSIS

1. The trial court committed error in denying Brown’s Motion for Directed Verdict because the prosecution failed to prove its case against the Appellant, and the verdict was against the overwhelming weight of the evidence, and the verdict evidences bias and prejudice against the Appellant and was based solely upon conjecture and speculation.

¶ 7. Under this heading, Brown asserts that the trial court erred in not granting her motion for directed verdict, claiming that there was not sufficient credible evidence to justify submission of the case to the jury. She also asserts that the verdict was against the overwhelming weight of the evidence. Consequently, we must distinguish between our review for challenges to the legal sufficiency of the evidence, and our standard of review for challenges to the weight of the evidence.

(a) Sufficiency of the Evidence

¶ 8. A motion for directed verdict and JNOV, as well as a request for peremptory instruction, challenge the legal sufficiency of the evidence, “since each requires consideration of the evidence before the court when made.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). Reversal on the issue of legal sufficiency can only occur when evidence of one or more of the elements of the charged offense is such that “reasonable and fair-minded jurors could only find the accused not guilty.” Purnell v. State, 878 So.2d 124, 129 (¶ 14) (Miss.Ct.App.2004) (citing Hawthorne v. State, 835 So.2d 14, 21 (¶ 31) (Miss.2003)). However, where substantial evidence of such quality and weight exists to support the verdict, and where reasonable and fair-minded jurors may have found the appellant guilty, we must affirm the judgment of the trial court. McClendon v. State, 852 So.2d 43, 47 (¶ 11) (Miss.Ct.App.2002) (citing Baker v. State, 802 So.2d 77, 81 (¶ 13) (Miss.1995)).

¶ 9. Brown asserts that the trial court erred in declining to grant her motion for directed verdict at the close of the State’s case-in-chief, as well as her motion for JNOV. In support of her challenge to the legal sufficiency of the evidence, Brown offers McKnight’s testimony that he locked the front door, but that he did not check the door to ensure that it was locked. Brown also offers the testimony of McKnight and Thomas, that Brown was on the floor during the robbery, to argue that the State’s case was “exceedingly weak,” and that the evidence of guilt “[did] not even rise to the preponderance of the evidence.” Finally, Brown asserts that her case is an example of guilt by association, because one of the victims stated that Brown was a friend of one of the masked robbers.

¶ 10. The State’s evidence was presented through the testimony of the two victims, McKnight and Thomas, as well as Derrick Thomas, the victim’s sister; Stevie Hester, a neighbor; and Murry Roark, an investigator with the Bolivar County Sheriffs Department. McKnight testified that he locked the doorknob and shut the door after allowing Brown to enter his home. Both McKnight and Thomas testified that Brown declined to sit down, and that she stood facing them with her back to the door. According to Thomas, Brown had her hand on the doorknob before the masked men rushed through the door. Thomas also testified that she never saw any of the masked men point a gun at Brown. Finally, Thomas testified that Brown left immediately after the men, and that she refused to help her untie McKnight.

¶ 11. Regarding the testimony cited by Brown, that McKnight did not check the door after locking it, the following is an excerpt from McKnight’s exchange with defense counsel on cross-examination:

Q: All right, you locked it and then you shut the door?
A: Yes.
Q: Did you shake the door after you shut it?
A: I didn’t have to. I know how to lock my door.
Q: Sir?
A: I didn’t have to. I know how to lock my door.
Q: Well, I understand you know how to lock the door. But have you ever thought you shut a door and didn’t shut a door?
A: Well, it was closed.
Q: It was closed ... [h]ow do you know that? Did you shake the door and try it?
A: I mean, anytime you slam my door, it’s locked. It shuts.
Q: Did you shake the door and make ' sure it was locked?
A: I did not. I mean, it was locked. I didn’t have to do all that.
Q: You think it was locked.
A: I didn’t have to think. I know.
Q: How do you know it was locked, if you did not check it?
BY MS. FLINT: Your Honor, I object to asked and answered or argumentative.
BY THE COURT: You are beating a dead horse.

¶ 12. Brown’s suggests that this case is one of guilt by association and that the State’s case was “exceedingly weak.” We find that her challenge to the legal sufficiency of the evidence does not justify reversal. The State presented testimonial evidence by McKnight that the front door was locked after Brown entered the mobile home. Furthermore, the State presented testimonial evidence that Brown was never threatened at gunpoint. In sum, reasonable jurors could have concluded that Brown was guilty. This issue is without merit.

(b) Weight of the Evidence

¶ 13. “As distinguished from a motion for a directed verdict or a JNOV, a motion for a new trial asks to vacate the judgment on the grounds related to the weight of the evidence, not sufficiency of the evidence.” Purnell, 878 So.2d at 129 (¶ 18) (citing Smith v. State, 802 So.2d 82, 85-86 (¶ 11) (Miss.2001)). It is a fundamental principle of law that a jury verdict will not be disturbed except in the most extreme of situations. Washington v. State, 800 So.2d 1140, 1144 (¶ 10) (Miss.2001) (citing Manning v. State, 735 So.2d 323, 333 (¶ 10) (Miss.1999)). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Walker v. State, 881 So.2d 820, 831 (¶ 32) (Miss.2004) (citing Dudley v. State, 719 So.2d 180, 182 (¶ 8) (Miss.1998) (overruled on other grounds)).

¶ 14. After reviewing the evidence in support of Brown’s conviction, we cannot say that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. We find that the facts and reasonable inferences drawn from those facts strongly point toward Brown’s guilt. Therefore, this issue is without merit.

2. The trial court committed reversible error when not allowing testimony of drug activity conducted by one of the prosecuting witnesses.

¶ 15. A trial judge has great discretion in determining the relevancy and admissibility of evidence. Fisher v. State, 690 So.2d 268, 274 (Miss.1996) (citing Shearer v. State, 423 So.2d 824, 826 (Miss.1982)). The trial judge’s ruling on such matters will not be reversed, únless the judge abused this discretion so as to be prejudicial to the accused. Id. Rule 103(a) of the Mississippi Rules of Evidence states in part that “[ejrror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.”

¶ 16. Prior to the trial, the State filed a motion in limine to exclude the testimony of defense witnesses and/or co-defendants regarding alleged drug transfers between themselves and the victims. The State argued that such testimony was not relevant, and that it would confuse the jury as to the issues of the case. Furthermore, the State argued that the testimony was offered to prove conformity, that it was speculative, and that it was not an affirmative defense.

¶ 17. During direct examination, McKnight testified that when Brown entered his home he asked her “whether she came by to buy some drugs, or came by to borrow some money.” On cross-examination, Brown’s attorney asked McKnight if he had sold drugs in the past, and McKnight replied that he had not. During the hearing on the motion in limine, Brown’s attorney argued that Ricky Giles should be allowed to testify that on March 3, 2003, he witnessed Brown buy marijuana from McKnight. Brown’s attorney argued that this testimony should be allowed to impeach, or to show bias. The trial court granted the motion in limine, stating that, pursuant to Rule 608 of the Mississippi Rules of Evidence, “specific incidents of conduct may not be proved by extrinsic evidence.” The trial court also held that the testimony was not appropriate under Rule 403 of the Mississippi Rules of Evidence.

¶ 18. Rule 403 of the Mississippi Rules of Evidence states in part that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Additionally, Rule 608 of the Mississippi Rules of Evidence provides that specific instances of conduct of a witness may be inquired into oh cross-examination to attack the credibility of the witness if probative of truthfulness or untruthfulness. However, the rule also provides that specific instances of conduct, which did not result in a conviction, “may not be proved by extrinsic evidence.”

¶ 19. The State may have opened the door when McKnight stated on direct that he asked Brown whether she was there to borrow money or buy drugs. However, pursuant to Rule 608, Brown’s attorney could not impeach McKnight with extrinsic evidence to show prior instances of misconduct, and the trial court had great discretion in determining whether the testimony was admissible under Rule 403. Furthermore, Brown has not shown this Court that the trial court’s decision violated a substantial right. Thus, the trial court did not err in granting the motion in limine. This issue is without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF CONVICTION OF COUNT ONE BURGLARY OF A DWELLING AND SENTENCE OF TWENTY YEARS, WITH TWELVE YEARS SUSPENDED; COUNT TWO ROBBERY AND SENTENCE OF FIFTEEN YEARS, WITH SEVEN YEARS SUSPENDED; COUNT THREE KIDNAPPING AND SENTENCE OF TWENTY YEARS, WITH TWELVE YEARS SUSPENDED; AND COUNT FOUR AUTO THEFT AND SENTENCE OF FIVE YEARS; ALL TO BE SERVED CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; AND PAYMENT OF RESTITUTION IN THE AMOUNT OF $40 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 ROBERTS, JJ„ CONCUR.