text:
    Ronald Keith HINTON a/k/a Stump Jumper, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01133-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.
    Rehearing Denied Oct. 17, 2006.

      Ronald Keith Hinton, Appellant, pro se.
    Office of the Attorney General by Jose B. Simo, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Ronald Keith Hinton, a/k/a Stump Jumper, pled guilty in the Circuit Court of Pearl River County to armed robbery. He was sentenced to serve twenty-five years without the possibility of parole in the custody of the Mississippi Department of Corrections. He filed his petition for post-conviction relief, which was denied by the circuit court. On appeal, Hinton argues (1) his sentence is illegal, and (2) he was entitled to an evidentiary hearing on his ineffective assistance of counsel claim. We affirm denial of post-conviction relief. Nevertheless, we remand the case so the judgment below will correctly identify the crime to which Hinton pled guilty.

FACTS

¶ 2. Hinton was indicted for armed robbery and aggravated assault. He was accused of using a knife to rob the K & T Spur convenience store, and of punching and shoving the female store clerk in the process. On April 4, 2002, Hinton pled guilty to armed robbery; in exchange, the State agreed to drop the aggravated assault charge and not to charge Hinton as an habitual offender.

¶ 3. At the plea hearing, the judge asked if Hinton was pleading guilty to robbing the store with a firearm. The State corrected the judge and stated that Hinton used a knife. The order of conviction set out that Hinton pled guilty to armed robbery by use of a firearm.

STANDARD OF REVIEW

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

ANALYSIS

I. Did Hinton receive an illegal sentence?

¶ 5. Hinton challenges his sentence to the extent that he was denied the possibility of parole. He contends this is illegal, because only the parole board can grant or deny parole. The State responds that this part of the sentence was required by Mississippi Code Annotated Section 47-7-3(l)(d)(ii) (Supp.2005).

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

¶ 7. Here, however, Hinton pled guilty to armed robbery through the display of a deadly weapon. Under Mississippi Code Annotated Section 47-7-3(l)(d)(ii), he is not eligible for parole. Given this, we find no error in the sentence. It is not the trial judge’s sentence which prohibits the parole board from considering Hinton for parole. It is the legislature, who acted within their constitutional power. Accordingly, we find no merit to this issue.

II. Was Hinton entitled to an eviden-tiary hearing on his ineffective assistance of counsel claim?

¶ 8. Hinton argues he was entitled to an evidentiary hearing on his ineffective counsel claim, because the record “fail[s] to reveal the allegations present.” His ineffective counsel claim lies in the fact that his counsel failed to investigate and find out that the robbery was committed with a plastic knife and so it could not be considered a deadly weapon within the meaning of the armed robbery statute. He also claims his attorney did not require a factual basis for the plea to be established at the plea hearing. The State responds that Hinton voluntarily pled guilty.

¶ 9. If “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.” Miss.Code Ann. § 99-39-11(2) (Rev.2000). A defendant is not entitled to an evidentia-ry hearing where the affidavits presented directly conflict with the testimony in the plea hearing. Cole v. State, 608 So.2d 1313, 1321 (Miss.1992).

A. Failure to investigate

¶ 10. Hinton alleges that the knife was plastic and thus not a deadly weapon. He further alleges that his attorney failed to investigate this fact as the attorney was under the impression that the robbery was committed with a gun. To prove ineffective assistance of counsel, Hinton must demonstrate that his counsel’s performance was deficient, and this deficiency prejudiced his defense. Strickland, v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show prejudice, he must prove that he would not have pled guilty but for the alleged deficiency. Thomas v. State, 881 So.2d 912, 917-18(¶ 16) (Miss.Ct.App.2004).

¶ 11. First, we note that Hinton sets out a claim for deficiency, which the record fails to contradict. He alleges his attorney failed to investigate the weapon used. Hence, Hinton argues that had his attorney so investigated he would have found out that the weapon was a plastic knife. During the plea hearing, the lower court asked Hinton’s counsel if Hinton understood that he was only pleading to Count I armed robbery by use of a firearm. Hinton’s counsel responded yes. The prosecutor corrected them, “It wasn’t a firearm, Your Honor. It was a knife.” The court asked, “A knife, but a deadly weapon?” To which the prosecutor responded, “Yes, sir.” The record tends to support Hinton’s claim that his attorney did not investigate even the charges against him, let alone the weapon used.

¶ 12. However, his claim fails on the second prong of the Strickland analysis. Hinton’s petition does not set out a claim for prejudice. To begin with, he does not state that but for this deficiency he would have not pled guilty and insisted on going to trial. Additionally, “in order to establish that failure to investigate a line of defense constituted ineffective assistance, a petitioner must show that knowledge of the uninvestigated evidence would have caused counsel to vary his course.” Id. at 918(¶ 18) (quoting King v. State, 503 So.2d 271, 275 (Miss.1987)). Hinton does not allege his attorney would have done anything different in this case. Indeed, we note that while Hinton claims the knife was plastic, the State was ready with evidence to show that it was an actual, long-bladed knife, and thus, a deadly weapon.

¶ 13. Because Hinton’s petition failed to state a claim under Strickland, it was apparent on the face of the motion that he was not entitled to relief. Therefore, he was not entitled to an evidentiary hearing on whether his attorney’s failure to investigate rendered ineffective assistance of counsel. Accordingly, we find this issue has no merit.

B. Failure to require a factual basis for the plea

¶ 14. Hinton alleges there was not a factual basis to support the plea in the plea hearing transcript. This is a fault he assesses to his attorney, and he uses this basis to support a second ineffective assistance of counsel claim. The State counters that there is a factual basis to support the guilty plea.

¶ 15. Hinton does not challenge that the elements of the crime were proven. What he challenges is that the State could not prove he was the one who committed this crime. The State read the victim’s statement into the record as part of what it would be able to prove if the case went to trial. As for the identity of the culprit, the proof showed, the suspect was a black male, and

[h]e was wearing a white shirt, long shorts and a baseball cap. He had some hair sticking out of the sides of his hat.
On the afternoon of the robbery I was called to the police station to examine a photo lineup. I had just returned from the hospital. I came to the police station and was shown the lineup. I picked out a photograph, but could not make a positive identification, because the hair in photo number four was too short, but the person in photo four was Rodney Hinton. She [the victim] had a question about his hair. As far as the facial features it was definite.

¶ 16. The transcript indicates that the State would be able to prove that the victim positively identified Hinton as the culprit. Because there was a factual basis to support Hinton’s guilty plea, his counsel cannot be said to be ineffective on this basis. As it appears plainly on the face of the motion and plea transcript that Hinton was not entitled to relief on this claim, we affirm the summary dismissal without an evidentiary hearing.

III. Correction of judgment

¶ 17. Although neither party raises the issue, the Court notes that Hinton pled guilty to armed robbery through the display of a knife, but the judgment below convicted him of armed robbery through the use of a firearm. Armed robbery occurs with the use of a firearm or other deadly weapon. Miss.Code Ann. § 97-3-79 (Rev.2000). A knife is a deadly weapon and still qualifies to sustain Hinton’s plea of guilty of armed robbery. While we affirm the denial of Hinton’s motion for post-conviction relief, we remand the case back so the trial court may correct the judgment and sentencing order to reflect the fact that Hinton pled guilty to armed robbery through the display of a deadly weapon other than a firearm.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. THE CASE IS REMANDED FOR A CORRECTION TO THE JUDGMENT CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

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


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Jane DOE, Appellant v. ROMAN CATHOLIC DIOCESE OF JACKSON, Mississippi, Bishop William R. Houck, his Predecessors and Assigns, and George Broussard, Appellees.
    No. 2004-CA-02572-COA.
    Court of Appeals of Mississippi.
    June 6, 2006.
    Rehearing Denied Nov. 7, 2006.

      Hiawatha Northington, attorney for appellant.
    Christy Michelle Sparks, Ridgeland, Janet McMurtray, Jackson, Joseph L. McNamara, John Jeffrey Trotter, attorneys for appellees.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. Jane Doe claims in the early 1970’s, that Father George Broussard and Father Tommy Boyce, priests with the Roman Catholic Diocese of Jackson, Mississippi (Diocese), began sexually abusing her. Doe claimed that Boyce began abusing her as early as 1972 while Broussard began to abuse her in 1973. This alleged abuse continued until about 1977 when Doe graduated high school in Kansas. Doe married in or about 1979, but separated from her husband in 1982. After the separation, Doe learned she was pregnant. Doe’s mother then arranged with Father Boyce for Doe to stay at the Catholic Charities Maternity Home in Jackson. Upon arriving at the Maternity Home, Doe claims that Boyce resumed his abuse.

¶ 2. Doe claims that her past injuries were renewed sometime after 2001 when she learned that the Diocese and its leaders were aware of the activities of the priests. Thereafter, Doe filed a complaint on July 18, 2003 against the Diocese and several other parties, alleging conspiracy, fraud and fraudulent concealment, negligence, intentional infliction of emotional distress, breach of fiduciary duty, negligent and fraudulent misrepresentation, and negligence per se. No discovery was conducted. The Diocese and Houck collectively filed a motion for summary judgment on January 6, 2004, claiming that the statute of limitations had expired on Doe’s claims. On July 15, 2004, the court granted summary judgment against Doe, and dismissed her claims with prejudice. It is from the grant of summary judgment that Doe has chosen to appeal.

DISCUSSION

¶ 3. The standard of review for summary judgment is well settled. A trial court’s grant or denial of a motion for summary judgment is always reviewed de novo. Leffler v. Sharp, 891 So.2d 152, 156(¶ 9) (Miss.2004). The evidence is viewed in the light most favorably to the party opposing the motion. Davis v. Hoss, 869 So.2d 397, 401(¶ 10) (Miss.2004). If there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor. Id. The opposing party must be diligent and may not rest upon mere allegations or denials in the pleadings, but must by allegations or denials, set forth specific facts showing there are genuine issues for trial. Id. If any triable issues of fact exist, the lower court’s grant of summary judgment will be reversed; otherwise, the decision will be affirmed. Miller v. Meeks, 762 So.2d 302, 304(¶ 3) (Miss.2000).

¶ 4. The trial court found that Doe’s claims were barred because the applicable statute of limitations had expired. Doe’s claims are governed by the general statute of limitations set forth in Mississippi Code Annotated § 15 — 1—49, prior to its 1989 amendment. Any claim that accrued prior to 1989 is subject to a six year statute of limitation. ■ Because Doe was a minor at the time of the alleged abuse, the statute of limitations was tolled until she turned twenty-one, when she reached the age of majority. See Mississippi Code Annotated § 15-1-59 (Rev.2003); see also Lawler v. Government Employees Ins. Co., 569 So.2d 1151, 1153 (Miss.1990). Assuming again that Doe was born in 1959, she turned twenty-one in or about 1980. Doe would have had until 1986 to file her claim of abuse before the six year statute of limitations, which was tolled during her minority, expired. Therefore, Doe’s claims are time barred on their face. However, Doe argues that some material facts exist, and these disputed facts should preclude summary judgment and the time bar.

¶ 5. Doe asks this court to apply the discovery rule in tolling the limitations period because she did not psychologically comprehend that the priests’ acts were abuse, she did not connect the priests’ actions to her emotional problems, and she only recently began to psychologically comprehend that the priests’ acts were abusive and the cause of her injuries. The discovery rule, set out in Mississippi Code Annotated § 15-1-49(2) (1972) (current version at § 15-1-49(2) (Rev.2003)) states: “in actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.” Essentially, the discovery rule provides for a special exception to the standard three-year statute of limitations for “latent injury or disease.” PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 50(¶ 9) (Miss.2005). In order to claim benefit of the discovery rule, a plaintiff must be reasonably diligent in investigating the circumstances surrounding the injury. Wayne General Hosp. v. Hayes, 868 So.2d 997, 1001(¶ 15) (Miss.2004). “The focus is on the time that the patient discovers, or should have discovered by the exercise of reasonable diligence, that he [or she] probably has an actionable injury.” Id. (citing Smith v. Sanders, 485 So.2d 1051, 1052 (Miss.1986)).

¶ 6. The discovery rule does not apply in Doe’s case. Our supreme court has held that where there is no latent injury, the discovery rule cannot apply. PPG Architectural Finishes, Inc., 909 So.2d at 50(¶ 10). A latent injury is defined as one where the plaintiff is precluded from discovery of the harm or injury because of the secretive or inherently un-discoverable nature of the wrongdoing in question, or when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act. Id. (citing Donald v. Amoco Prod. Co., 735 So.2d 161, 168(¶ 18) (Miss.1999)).

¶ 7. The acts of abuse alleged by Doe are physical acts of which a person is generally aware when the event occurs. Given the nature of the physical acts Doe alleges she endured from Boyce and Broussard, and her age at the time of the abuse, Doe was certainly aware of the abuse at the time of its occurrence. Whether or not Doe was mentally capable of understanding the physical acts she endured when they occurred is not the critical inquiry with the discovery rule. Further, when construing Mississippi Code Annotated § 15-1-35 in the context of clergy sexual abuse claims, the United States District Court for the Eastern District of Louisiana held that “claims of illicit sex are substantially and functionally similar to allegations of assault and battery.” Tichenor v. Archdiocese of New Orleans, 869 F.Supp. 429, 435 (E.D.La.1993). Such is the case here. Thus, the discovery rule does not apply in Doe’s case. Therefore, the trial court committed no error on this issue.

¶ 8. Like the discovery rule, fraudulent concealment also tolls the accrual of limitations. Doe also argues that her claims should survive the time bar because of an alleged conspiracy by the Diocese to fraudulently conceal from her abuse about which it knew.

¶ 9. Fraudulent concealment tolls the limitations period until the claim is discovered or should have been discovered. Miss.Code Ann. § 15-1-67 (Rev.2003). In order to establish fraudulent concealment, the plaintiff must prove that (1) the defendants engaged in some act or conduct of an affirmative nature designed to prevent and which does prevent discovery of a claim, and (2) though plaintiffs acted with due diligence in attempting to discover the claim, they were unable to do so. Robinson v. Cobb, 763 So.2d 883, 887(¶ 19) (Miss.2003). Here, Doe has failed to satisfy either prong of the fraudulent concealment test. Doe did not present any evidence showing that any party committed any act or conduct of an affirmative nature ■ designed to prevent, and which did prevent, discovery of a claim. Nor does Doe present any evidence showing any effort on her part to discover any information from the Diocese, prior to her complaint being filed in 2003. Instead, Doe asserts that this is an issue of material fact that should survive summary judgment so that discovery can be completed and this information divulged. However, because Doe has failed to satisfy either prong of the fraudulent concealment test, and because Doe was aware of the abuse, the statute of limitations was not tolled.

¶ 10. A similar decision was reached in Doe v. Linam, 225 F.Supp.2d 731, 733 (S.D.Tex.2002). In Doe, the court dealt with an issue of alleged abuse by Catholic clergy. Doe, a minor at the time of his alleged abuse, waited twenty-eight years before bringing his claim before the court. Id. In trying to overcome his statute of limitations, Doe claimed that the Diocese’s fraudulent concealment of his alleged abuser’s sexual propensities tolled his statute of limitations. Id. at 734. The court, however, found that fraudulent concealment could not apply because Doe was aware of the abuse before the applicable statute of limitations began to run. Id. at 736. In the case sub judice, Doe was aware of the abuse when it was allegedly committed. Doe has admitted that she kept the abuse to herself for fear of risking her mother’s welfare, and because she blamed herself for what was happening to her. Because Doe was aware of the abuse, the fraudulent concealment doctrine cannot apply, and the statute of limitations cannot be tolled.

¶ 11. Finally, Doe claims that the revelation in or about 2001 that the Diocese knew of past acts of abuse resulted in her suffering from a new injury. Again, Doe has failed to show that the Diocese specifically knew of her alleged abuse, and has also failed to show a legally recognized relationship to those claims that the Diocese did know of. Thus, Doe has no standing to assert this as a new cause of action. Therefore, the judgment of the trial court granting summary judgment is affirmed.

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

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

      . Due to the nature of the offense, the victim's real name will not be used in this opinion.

      . Father Boyce is now deceased, and was deceased at the start of the litigation.

      . Although there is no record of when Doe was born, Doe graduated from high school in 1977. Assuming she was eighteen when she graduated from high school, Doe was born in or around 1959. Therefore, Doe was between twelve and thirteen years old when the alleged abuse began.


text:
    Kenneth McKLEMURRY, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02362-COA.
    Court of Appeals of Mississippi.
    June 27, 2006.
    Rehearing Denied Oct. 31, 2006.

      Nelson Shane Estess, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   KING, C.J.,

for the Court.

¶ 1. Kenneth McKlemurry was indicted on four counts of possession with intent to distribute a controlled substance. He was convicted by a Pike County Circuit Court jury on the lesser-included offense of four counts of unlawful possession of a controlled substance and sentenced to fifty-two years in the custody of the Mississippi Department of Corrections, with twenty-two years to serve and thirty years on post-release supervision. He appeals raising the following issues:

I. WHETHER THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT’S OBJECTION TO THE STATE’S FORM OF THE VERDICT INSTRUCTION.
II. WHETHER THE COURT ERRED IN DENYING THE DEFENDANT’S PROPOSED JURY INSTRUCTION REGARDING THE SOLDIERS AND SAILORS CIVIL RELIEF ACT.
III.WHETHER THE COURT ERRED IN DENYING THE DEFENDANT’S MOTION FOR A FRANKS HEARING AFTER DEFENDANT PROVIDED EVIDENCE PROVING THE REQUISITE PRELIMINARY SHOWING THAT A FALSE STATEMENT KNOWINGLY AND INTENTIONALLY, OR WITH RECKLESS DISREGARD FOR THE TRUTH, WAS INCLUDED IN THE AFFI-ANT’S SEARCH WARRANT AFFIDAVIT.

Finding no reversible error, we affirm.

FACTS

¶ 2. On the evening of December 30, 2003, Amite County Sheriffs Deputy Tim Wroten was at a confidential informant’s home in Pike County regarding an employee of the informant. During this visit, the telephone rang. Wroten testified that the name on the caller I.D. was that of Kenneth McKlemurry. Wroten further testified that the informant advised Wroten to pick up another telephone and listen in on the conversation. Chris Haas, the caller, told the informant that McKlemurry’s brother, Robert, had prescriptions pills and marijuana at McKlemurry’s house, and that “they” had it for sale. Wroten testified that the caller identified himself as Chris, and the informant later told Wro-ten the caller’s last name was Haas. Wro-ten then contacted Agent Chris Powell with the Mississippi Bureau of Narcotics to relay the information. Powell obtained a search warrant, and found the controlled substances in a safe in McKlemurry’s home.

ISSUES AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT’S OBJECTION TO THE STATE’S FORM OF THE VERDICT INSTRUCTION.

¶ 3. In reviewing jury instruction issues, this Court reads the instructions together as a whole. Miller v. State, 919 So.2d 1137, 1141(¶ 12) (Miss.Ct.App.2005). No reversible error will be found to exist if, when read together, the instructions correctly state the law and effectuate no injustice. Id.

¶ 4. McKlemurry was indicted for violating Mississippi Code Annotated § 41-29-139(a)(2) (Rev.2005), which prohibits, among other activities, knowingly or intentionally possessing a controlled substance with the intent to distribute. McKlemur-ry’s indictment, however, stated that he “willingly, unlawfully, feloniously, and knowingly” possessed a controlled substance with the intent to distribute. Rather than tracking the language of the indictment, the form of the verdict instruction tracked the language of the statute, and instructed the jurors that, if they believed that McKlemurry knowingly possessed the drugs with intent to distribute, they may find him guilty of the crime charged. McKlemurry argues that by omitting willingly, unlawfully, and feloniously from the form of the verdict instruction, the State was allowed to prove less than what was charged in the indictment. Specifically, McKlemurry argues that the State should have been required to prove that the possession was felonious. However, so long as the State proved that McKlemurry knowingly possessed the drugs in question, he in fact committed a felony according to Mississippi Code Annotated § 41-29-139. Therefore, we find that the language “willingly, unlawfully, feloniously” in the indictment was mere surplusage, and the fact that the form of the verdict instruction omitted this surplusage was not erroneous as it created no injustice.

II. WHETHER THE COURT ERRED IN DENYING THE DEFENDANT’S PROPOSED JURY INSTRUCTION REGARDING THE SOLDIERS’ AND SAILORS’ CIVIL RELIEF ACT.

¶ 5. McKlemurry argues that the exchange at trial between the prosecutor and Haas regarding the status of Haas’ criminal case was a misstatement of the law which prejudiced McKlemurry by influencing the amount of weight the jury gave to Haas’ testimony. McKlemurry asserts that the misstatement of law was made to falsely illustrate that Haas was not receiving preferential treatment by the State in exchange for his testimony.

Q. What is the status of your case now?
A. It’s been put on hold until I get back from Iraq.
Q. That’s pursuant to the Soldier’s [sic] and Sailor’s [sic] Relief Act?
A. Yes, sir.

Rather than making a contemporaneous objection to the prosecutor’s misstatement of law, McKlemurry offered instruction D9 which stated, “This Court instructs the Jury that, as a matter of law, the Soldiers and Sailors Civil Relief Act of 1940 does not apply to criminal cases.” This instruction was refused by the court.

¶ 6. The purpose of jury instructions in a criminal case is to inform the jury of the critical facts and applicable law on which the issue of guilt may be resolved. Edwards v. State, 755 So.2d 443, 446(¶ 12) (Miss.Ct.App.1999) (citing Lamar v. State, 64 Miss. 428, 1 So. 354, 355 (1887)). “The obligation of the trial court is to see that the jury is fully instructed on the applicable law. It is not to give every instruction requested by either party merely because the instruction is arguably a correct statement of some abstract legal principle.” Langdon v. State, 798 So.2d 550, 559(¶ 27) (Miss.Ct.App.2001) (citing Turner v. State, 748 So.2d 706(¶ 7) (Miss.1999); Estate of Lawler v. Weston, 451 So.2d 739, 741 (Miss.1984)). Although proposed jury instruction D9 correctly states the law, it could not aid the jury in determining a material issue in the case. Rather, McKlemurry offered the instruction in an attempt to call Haas’ credibility into question, since McKlemurry believed that Haas’ was testifying against him and against Haas’ own self-interest in exchange for favorable treatment from the State, rather than anything having to do with the Servicemembers’ Civil Relief Act. Haas’ credibility, however, was a collateral issue in the case, which could have been properly attacked through rigorous cross-examination. We find that since instruction D9 could not assist the jury in resolving a material issue in the case, it was properly refused by the trial court. Furthermore, the instruction- may have also been properly refused as an impermissible comment on the weight of the evidence. See Mississippi Code Annotated 99-17-35 (Rev.2000).

III. WHETHER THE COURT ERRED IN DENYING THE DEFENDANT’S MOTION FOR A FRANKS HEARING AFTER DEFENDANT PROVIDED EVIDENCE PROVING THE REQUISITE PRELIMINARY SHOWING THAT A FALSE STATEMENT KNOWINGLY AND INTENTIONALLY, OR WITH RECKLESS DISREGARD FOR THE TRUTH, WAS INCLUDED IN THE AFFI-ANT’S SEARCH WARRANT AFFIDAVIT.

¶ 7. McKlemurry argues that the warrant affidavit contained false statements in the underlying facts and circumstances section. The relevant portion of the underlying facts and circumstances in the affidavit states,

On December 30, 2003, Agent Powell received information from a confidential informant, who has provided information in the past that has proven to be reliable and that has led to numerous arrests, concerning Kenneth McKlemurry and Chris Haas being involved in the sale and distribution of Hydrocodone, Al-prazolam, Demerol, Methadone, Soma, and marijuana while located at 716 Ave. A in McComb, Pike County, MS. The informant stated that Chris Haas called from [telephone number]. This phone is registered to 716 Ave. A, the residence of Kenneth McKlemurry. The informant stated that Kenneth McKlemurry’s brother brought numerous pills and an undetermined amount of marijuana from ■ Alabama to Kenneth McKlemurry’s residence. Haas stated that-the majority of the pills and marijuana was gone and that a white male, Millard Lambert, had purchased -that majority of pills and marijuana from Kenneth McKlemurry. Haas stated that Haas and Kenneth McKlemurry had approximately $1250.00 worth of pills and approximately one ounce of marijuana left and would sell everything for $1200.00.

At a pretrial hearing, it was determined that the referenced confidential informant was Deputy Wroten. McKlemurry argues that some of the information in the affidavit came from the unnamed confidential informant at whose house Wroten visited. McKlemurry suggested that Powell intentionally left out the fact that there was another informant whose veracity had not been established.

¶ 8. McKlemurry relies on Franks v. Delaware which states,

[W]e hold that, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided as the fruits of the search excluded to the same extent as if probable cause were lacking on the face of the affidavit.

438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (adopted by the Mississippi Supreme Court in Bevill v. State, 556 So.2d 699, 712 (Miss.1990)).

¶ 9. The alleged false statement made by Powell concerned his identifying only one informant, Wroten, from which the information was obtained. Wroten testified that he had no personal knowledge of Haas’ identity. In the phone conversation Wroten listened in on, he heard the caller identify himself as Chris. When the confidential informant ended the telephone conversation, she informed Wroten that the caller was Chris Haas. Assuming only for the purpose of discussion that Agent Powell gave an untruthful statement in the affidavit as to who had personal knowledge of Haas’ identity, the remainder of the information within Wroten’s knowledge would be more than enough to establish probable cause for the issuance of the search warrant. Accordingly, this issue fails.

¶ 10. THE JUDGMENT OF CONVICTION OF THE PIKE COUNTY CIRCUIT COURT OF UNLAWFUL POSSESSION OF LESS THAN THIRTY (30) GRAMS OF MARIJUANA (COUNT ONE), UNLAWFUL POSSESSION OF METHADONE (COUNT TWO), UNLAWFUL POSSESSION OF AT LEAST TWENTY (20) BUT LESS THAN FORTY (40) DOSAGE UNITS OF PETHIDINE (COUNT THREE), AND UNLAWFUL POSSESSION OF AT LEAST ONE HUNDRED (100) BUT LESS THAN FIVE HUNDRED (500) DOSAGE UNITS OF DIAZEPAM (COUNT FOUR) IS AFFIRMED. THE SENTENCE OF TWENTY-FOUR (24) YEARS ON COUNT TWO, TWENTY-FOUR (24) YEARS ON COUNT THREE, AND FOUR (4) YEARS ON COUNT FOUR WITH ALL COUNTS RUNNING CONSECUTIVELY IS AFFIRMED. THE DECISION THAT THE FIRST TEN (10) YEARS ON COUNT TWO, THE FIRST TEN (10) YEARS ON COUNT THREE, AND TWO (2) YEARS ON COUNT FOUR SHALL BE SERVED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. THE DECISION THAT THE REMAINING FOURTEEN (14) YEARS ON COUNT TWO, THE REMAINING FOURTEEN (14) YEARS ON COUNT THREE, AND THE REMAINING TWO (2) YEARS ON COUNT FOUR SHALL BE SERVED ON POST RELEASE SUPERVISION IS AFFIRMED. ALSO, THE FINE OF $250,250 AND RESTITUTION IN THE AMOUNT OF $425 TO THE MISSISSIPPI BUREAU OF NARCOTICS ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . McKlemurry testified that he had his brother’s prescription pills in his safe for safekeeping. He explained that the pills were in zi-ploclt bags because his brother needed to keep the prescription bottles with him in case he was pulled over.

      . Haas and Duk Hee Ross, McKlemurry’s girlfriend, were also indicted for four counts of possession of controlled substances with intent to distribute. McKlemurry and Ross stood trial together as co-defendants. In exchange for Haas' testimony, the State recommended that his trial be continued until he returns from his deployment in Iraq.


author: IRVING, J.,

text:
    Roy Lee TILLMAN, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01260-COA.
    Court of Appeals of Mississippi.
    July 18, 2006.
    Rehearing Denied Nov. 7, 2006.

      David L. Walker, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. A Tate County jury convicted Roy Tillman, Jr. of sexual battery and fondling of a child. The Tate County Circuit Court sentenced Tillman to twenty years, with five years of post-release supervision on the sexual battery charge and fifteen years on the fondling of a child charge in the custody of the Mississippi Department of Corrections. The court ordered that the fondling sentence be served concurrently with the sexual battery sentence. Aggrieved, Tillman appeals and alleges the following errors: (1) whether the trial court erred in overruling his objection to the State’s motion to have the public excluded from the courtroom during the testimony of J.T, and (2) whether the trial court erred in ruling that J.T. was competent to testify at trial.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. The basis for the charges against Tillman is that he sexually assaulted his live-in girlfriend’s daughter for over a year. The testimony at trial established that Tillman had lived with J.T.’s mother, M.T., and her children for over a period of seven years, serving as a father figure for the children. According to J.T., at about the age of thirteen or fourteen, Tillman began “messing with her.” J.T. testified that Tillman started off by rubbing her buttocks and breasts. She further testified that the sexual abuse progressed to the point where Tillman placed his finger inside her vagina and performed oral sex on her. J.T. testified that Tillman “messed with her” at least three or four times a week, but he never engaged in vaginal intercourse with her.

¶ 4. After M.T. learned of the abuse from family members, she set up a video camera in J.T.’s room without any knowledge by J.T. or Tillman. Tillman was recorded coming into J.T.’s room at night and rubbing and touching her as she slept. On the recorded occasion, J.T. eventually woke up and kicked at Tillman until he stopped and went away. The videotape of this incident was turned over to the Tate County Sheriffs Department, and Tillman was subsequently arrested and charged with sexual battery and fondling of a child.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Excluding the Public from the Courtroom

¶ 5. Tillman argues that the United States and Mississippi Constitutions guarantee him a right to a public trial. He maintains that “if one is going to make accusations such as these, one should be prepared to be confronted by the accuser in an open courtroom available to the general public and family members of either side.” Tillman further argues that - his constitutional rights to a public trial outweigh any “embarrassment” J.T. may have felt by having to give, in a courtroom open to the public, explicit details of the sexual abuse she had suffered.

¶ 6. The State recognizes that the United States and Mississippi constitutions afford the accused a right to a public trial. However, the State argues that this right is not absolute, as “it must be balanced against other interests essential to the administration of justice.” The State correctly points out that various federal courts and the Mississippi Supreme Court have held that a court may exclude the public “to the extent necessary to avoid embarrassment or emotional disturbance to a witness which might result from that witness’s giving testimony in a particular case.” Lee v. State, 529 So.2d 181, 183 (Miss.1988).

¶ 7. “Generally, a defendant has a constitutional right to a public trial. However, that right is not absolute, but instead must be balanced against other interests essential to the administration of justice.” Bailey v. State, 729 So.2d 1255, 1260(¶ 24) (Miss.1999) (overruled on other grounds) (citing Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)). The Mississippi Constitution explicitly authorizes the exclusion of the public in certain instances, as Article 3, Section 26 provides, in pertinent part, that “in prosecutions for rape, adultery, fornication, sodomy, or crimes against nature the court may, in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial.” Although the United States Constitution does not explicitly provide for exclusion of the public during the course of a trial, federal courts have recognized certain instances in which exclusion may be appropriate. Id. Nevertheless, “any exclusion of the public must satisfy both the Mississippi Constitution and the United States Constitution.” Id.

¶ 8. In Waller, the United States Supreme Court established a test for determining whether a defendant’s right to a public trial is outweighed by other considerations. The court held that:

the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Waller, 467 U.S. at 48, 104 S.Ct. 2210. The Mississippi Supreme Court “adopted the Waller test in Gannett River States Publ’g Co. v. Hand, 571 So.2d 941, 945 (Miss.1990).” Bailey, 729 So.2d at 1261(¶ 29).

¶ 9. Here, the trial court noted that the allegations involved acts of sexual penetration, more specifically, oral sex and digital penetration, as well as acts of fondling that occurred over a period of time. The court also recognized the sensitive nature of the testimony and the emotional state of J.T. due to the sexual abuse. Therefore, based on Article 3, Section 26, the facts' of the case, the age of the child, and the family dynamics (the families of J.T. and Tillman were intertwined as members of the families were related to both J.T. and Tillman), the court found it appropriate to close the courtroom to everyone except necessary court personnel during J.T.’s testimony. The court ruled that Tillman, his attorney, and necessary court personnel would be allowed to be present during J.T.’s testimony. Everyone else was required to vacate the courtroom but were allowed to return at the conclusion of J.T.’s testimony. We note that J.T. was the first witness called to testify and that the public was allowed to be present in the courtroom for the remainder of the trial.

¶ 10. We find that the trial court’s actions were sufficient to pass the Waller test. Additionally, Article 3, Section 26 of the Mississippi Constitution gives a judge discretion to close a trial to the public in certain instances. We recognize that the crimes Tillman was charged with committing do not fall within the category of crimes enumerated in Article 3, Section 26. However, given the nature and substance of J.T.’s allegations, we note that her allegations are of the type contemplated by this provision and are of the type for which this provision was designed. Furthermore, the Mississippi Supreme Court has held that “public exclusion may be appropriate to the extent necessary to avoid embarrassment or emotional disturbance to a witness which might result from that witness giving testimony in a particular case.” Lee, 529 So.2d at 183. This case, which required a teenage girl to testify to potentially embarrassing or emotionally disturbing facts of a very sensitive and personal nature, clearly falls within the category of instances in which public exclusion is appropriate. This issue is without merit.

2. J.T.’s Competency to Testify

¶ 11. Tillman recognizes that a trial court is given great deference in its determination that a child witness is competent to testify. However, he argues that the trial court erred and abused its discretion in finding that J.T. was competent to testify. Apparently, the basis for Tillman’s argument lies in the fact that, on cross-examination, J.T. testified that she did not know the consequences of her not telling the truth on the stand. We note that on redirect J.T. testified that although she did not exactly know what the consequences of her not telling the truth might be, she did realize that they would probably entail some jail time.

¶ 12. The State argues that “it is in the sound discretion of the trial judge to determine the competency of a child witness.” The State further argues that “the reviewing court should affirm unless the trial judge abused that discretion.” The State points out that the trial judge conducted an in camera examination of J.T. in which the judge asked J.T. a series of questions before making the determination that she was competent to testify.

¶ 13. In reference to the testimony of child witnesses, the Mississippi Supreme Court has held the following:

Mississippi courts generally allow children of tender years to testify if competent. Rule 601 of the Mississippi Rules of Evidence provides that every person is competent to be a witness unless they are incompetent or otherwise restricted. It is in the sound discretion of the trial judge to determine the competency of a child witness. Before allowing the child to testify, the judge should determine “that the child has the ability to perceive and remember events, to understand and answer questions intelligently and to comprehend and accept the importance of truthfulness.”

Hersick v. State, 904 So.2d 116, 130(¶ 63) (Miss.2004) (quoting Mohr v. State, 584 So.2d 426, 431 (Miss.1991)). Therefore, pursuant to Rule 601, it is presumed that J.T. was a competent witness, absent some indication that she was not.

¶ 14. Here, the trial judge conducted an in camera examination of J.T. After a series of questions to test her competency to testify, the trial judge found that:

J.T. is emotional today. She is teary, but she’s certainly able to answer my questions. She appears to [sic] fifteen to sixteen years of age, as , she said that she was. She certainly appears to be average, if not above average intelligence. She certainly impressed me as understanding the significance of taking an oath and answering questions truthfully. There was absolutely nothing in her demeanor or her responses that would indicate to this court that she’s not competent to testify for any reason, and under our rules certainly she is presumed to be competent to testify and the court is going to allow her to testify. And she, of course, will be subjected to cross examination. As I said, I see no reason to require any further inquiry.

A review of the record reveals nothing that would indicate that J.T. was not a competent witness. J.T. exhibited normal intelligence. She had the ability to understand and answer questions asked of her, and she could remember explicit details about the sexual abuse that she had suffered. There is no indication that she was coerced or provoked into accusing Tillman of sexual abuse. Furthermore, there is nothing in the record that would indicate any mental deficiency or disease which would have affected J.T.’s competency to testify. Therefore, this issue is without merit.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY OF CONVICTION OF COUNT I, SEXUAL BATTERY, AND SENTENCE OF TWENTY YEARS, WITH FIVE YEARS OF POST-RELEASE SUPERVISION; COUNT II, FONDLING OF A CHILD, AND SENTENCE OF FIFTEEN YEARS TO RUN CONCURRENTLY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

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

      . This case involves a minor. Therefore, in order to protect her identity, we use initials for her name and her mother's name. JT.T. is the minor and M.T. is the mother.


author: CHANDLER, J.,

text:
    Steven Daniel RUMFELT, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02497-COA.
    Court of Appeals of Mississippi.
    Aug. 8, 2006.
    Rehearing Denied Jan. 30, 2007.

      John Michael Horan, Mark Kevin Hor-an, attorneys for appellant.
    Office of the Attorney General by Daniel Hinchcliff, attorney for appellee.
    Before KING, P.J., CHANDLER, GRIFFIS, and BARNES, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. In June of 2003, Steven Daniel Rumfelt was indicted in the Circuit Court of Yalobusha County for felony child abuse. After a three day trial, a jury found Rumfelt guilty of felony child abuse. Rumfelt filed a motion for judgment of acquittal or in the alternative, a motion for a new trial. The trial judge denied the motions and sentenced Rumfelt to twenty years in the Mississippi Department of Corrections. Rumfelt appealed for the following:

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING INTRODUCTION OF A VIDEO TAPE WHICH SHOWED THE CHILD UNDERGOING PHYSICAL THERAPY
II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE JURY TO VIEW A DEMONSTRATIVE VIDEO OF A “SHAKEN BABY” EPISODE
III. WHETHER THE TRIAL COURT ERRED IN DENYING A CIRCUMSTANTIAL EVIDENCE INSTRUCTION
IV. WHETHER ERRORS CUMULATIVELY DENIED RUMFELT A FUNDAMENTAL RIGHT TO A FAIR TRIAL
¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Miranda Rumfelt recalls her son, Logan, was acting normal on the morning of March 30, 2003. Around 1:30 p.m., Miranda left Logan in the care of his father, Steven Rumfelt, while she went to work. Less than two hours later, Rumfelt brought Logan to Miranda’s place of employment. Logan’s face was blue, he was not breathing, and he was covered with vomit. Rumfelt told Miranda that he left the baby in a carpeted room. He said Logan was standing and holding on to a chair. Rumfelt said he heard Logan fall. He then went to the room where he had left Logan and found the child, limp and unconscious.

¶ 4. Miranda took Logan to the hospital in Oxford and he was later taken to the infant intensive care unit at Le Bonheur in Memphis, Tennessee. At Le Bonheur, Miranda was told that Logan had “shaken baby” syndrome.

¶ 5. Cindy Barnes, a social worker, was notified of Logan’s condition. Rumfelt told Barnes that Logan was acting lethargic on the morning of March 30, 2003. He told Barnes that he was washing up after feeding Logan when he heard a thud and went to see if Logan was injured. Rum-felt said he found Logan on the floor with his arms clenched and his eyes rolled back in his head. He claimed that he attempted CPR but could not remember if he shook Logan to make him breathe. Rumfelt admitted that Logan would occasionally get on his nerves, and Rumfelt would take the baby to his mother’s house or to a neighbor’s house during these episodes. After speaking with Rumfelt, Barnes obtained a court order to protect Logan from Rum-felt.

¶ 6. In June of 2003, Rumfelt was indicted on charges of felony child abuse in the Circuit Court of Yalobusha County. Several witnesses testified at trial.

¶7. Roger Thomas is an investigator with the Water Valley Police Department. Thomas testified that Rumfelt made the following statement to him:

If I can’t get him to stop crying, I get my mom to help and he usually calms down. I could have shaken Logan because I do really get frustrated at times, but I really do not remember shaking him Sunday. There have been times that I’ve gotten so frustrated that I have blacked out completely and do not remember anything that happened.... It depends on how bad I’m upset.... I just do not remember what all happened Sunday afternoon.

¶ 8. Dr. Edward Chaum testified that he examined Logan the day after he was injured. Dr. Chaum found significant trauma to both of Logan’s eyes with numerous hemorrages and separation of the vitreous gel from the surface of the retina. Dr. Chaum stated that the injuries were consistent with only one diagnosis, “shaken baby” syndrome. Dr. Chaum specifically eliminated a fall, seizure, accident, or CPR as the cause of Logan’s injuries. Dr. Chaum testified that there was controversy in the medical community regarding the amount of force needed to cause retinal bleeding.

¶ 9. Dr. Randy Richardson is an expert in the field of ophthalmology. Dr. Richardson first examined Logan in September of 2003 and last examined Logan in June of 2004. Dr. Richardson testified that Logan is legally blind.

¶ 10. Dr. Robert Walling, an expert in pediatrics and child abuse, also examined Logan. Dr. Walling testified that he reviewed various CAT scans, MRIs, and x-rays, which showed Logan suffers from a diffuse axonal injury. He stated that a CAT scan from May of 2003 revealed major and permanent brain damage. Dr. Walling opined that Logan’s injuries were far out of proportion to injuries caused by a simple fall. Dr. Walling testified that Logan’s symptoms were textbook indicators of “shaken baby” syndrome. In his testimony, Dr. Walling referred to a video of shaken baby syndrome to help explain the injuries he was describing. Dr. Walling testified that Rumfelt’s version of how Logan acquired the injuries was a common explanation in “shaken baby” cases. Dr. Walling also explained that the medicine, Phenergan, was not the cause of Logan’s injuries. Phenergan was one of the drugs used to treat Logan.

¶ 11. Logan’s pediatrician, Dr. Michael Dennis, first saw Logan on July 19, 2002, when Logan was two months old. Dr. Dennis testified that Logan’s condition was normal at that time and the examination revealed no signs of abuse or neglect. Dr. Dennis testified that Logan was neurologi-eally significantly impaired on March 30, 2003.

¶ 12. Dr. Robert Sanford, a pediatric neurosurgeon, testified that Logan’s injuries were consistent with “shaken baby” syndrome. Dr. Sanford reiterated the severity of Logan’s brain damage. Dr. Sanford testified that other forces could cause Logan’s injuries, such as car accidents and falls, however, bruising would generally be associated, with those types of injuries.

¶ 13. Amy Schillinger, a physical therapist, evaluated Logan on July 13, 2003. Schillinger explained the seriousness of Logan’s injuries and showed a video of Logan’s physical therapy session. The video showed Logan in hand and foot braces. The video revealed that Logan lacked the ability to control the movement of his feet when the braces were removed.

¶ 14. Dr. Ed Kaplan, a retired neurosurgeon, testified that there are many controversies in the medical literature concerning the diagnosis of “shaken baby” syndrome. Dr. Kaplan stated that possible side effects of the Phenergan was convulsive seizures and respiratory depression. Dr. Kaplan testified, although there were other potential explanations for Logan’s injuries, he thought that Logan was a shaken baby.

¶ 15. The final witness to testify at trial was Rumfelt. Rumfelt stated that he was the only person with Logan at the time Logan suffered the significant injuries. Rumfelt testified that he could not provide facts as to how Logan received the injuries and he denied violently shaking his son. Rumfelt stated that he attempted to give Logan CPR when it appeared that Logan had stopped breathing.

¶ 16. After a three day jury trial, Rum-felt was found guilty of felony child abuse and was sentenced to twenty years in the Mississippi Department of Corrections.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING INTRODUCTION OF A VIDEO TAPE WHICH SHOWED THE CHILD UNDERGOING PHYSICAL THERAPY

¶ 17. Rumfelt claims that the prejudicial effect of the videotape showing Logan’s inability to control the movement of his feet without braces far outweighed the probative value. Rumfelt contends that he never disputed the seriousness of Logan’s injuries; therefore, the trial court erred in introducing the videotape.

¶ 18. The State contends the issue is barred because Rumfelt failed to properly preserve the issue for appeal. The State argues Rumfelt failed to offer a contemporaneous objection on the record which was properly supported with grounds for the objection. The State also argues that the seriousness of the injuries are an element of the crime so the probative value outweighed the prejudicial effect.

¶ 19. Subsequent to playing the tape, after the witness was excused, counsel for Rumfelt stated:

[F]or the record, I want to make my objection to the playing and introduction into evidence of the videotape offered by the State of Mississippi concerning the physical therapy treatment of Logan Rumfelt. I submitted to the Court that I had seen the tape and that respectfully it was a therapy session wherein the baby cried virtually the entire time. I believed it was going to be inflammatory to the jury and that the probative value of the playing and introduction of that tape was far outweighed by the prejudicial effect.

The court responded: “[m]y ruling was that I thought the probative value would outweigh the prejudicial effects.... ”

¶ 20. Rumfelt claims the objection lodged subsequent to playing the tape was sufficient. However, it is well settled that a defendant must preserve the error for review by making a contemporaneous objection or the assignment of error will be procedurally barred. King v. State, 615 So.2d 1202, 1205 (Miss.1993). Although Rumfelt made an objection to the videotape on the record, the issue is whether the objection was made contemporaneously-

¶21. The contemporaneous objection rule means that the objection must be interposed at the time of the alleged error so that the trial court may be given an opportunity to rule. Anderson v. Jaeger, 317 So.2d 902, 906 (Miss.1975) (holding “[tjimely objections, followed by appropriate and timely motions, are necessary to preserve such points on appeal.”). The only objection made on the record fails to comply with the rule in Anderson. Rum-felt admits that “[a] strict reading of the Court transcript leaves it unclear whether an objection was lodged, but a bench conference was held prior to the introduction of this tape.”

¶ 22. The bench conference was unrecorded and we cannot speculate as to the context of the discussion. Although Rum-felt implies that a bench conference is an adequate objection, the Mississippi Supreme Court has held that an unrecorded bench conference is not sufficient to enter a proper objection on the record. Cotton v. State, 675 So.2d 308, 314 (Miss.1996). For the preceding reasons, this issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE JURY TO VIEW A DEMONSTRATIVE VIDEO OF A “SHAKEN BABY” EPISODE

¶ 23. Rumfelt alleges that the introduction of the video demonstrating a “shaken baby” episode violated his Sixth Amendment right to confront witnesses. Rumfelt contends that his rights were violated because he was unable to test the credibility of the speaker or the adequacy of the demonstration. The State says that the issue should be procedurally barred because Rumfelt failed to preserve the error for appeal. Rumfelt admits that no objection to the tape was made at trial. However, Rumfelt claims admitting the tape was plain error and, therefore, no objection was required.

¶ 24. The plain error rule will only be applied if Rumfelt’s fundamental rights are affected. Grubb v. State, 584 So.2d 786, 789 (Miss.1991). In Burchfield v. State, 892 So.2d 248, 255 (Miss.Ct.App.2004), this Court held “that there is no plain error in the failure to either make a Sixth Amendment objection or at least to have such an objection clearly preserved on the record.” Therefore, this issue is without merit.

III. WHETHER THE TRIAL COURT ERRED IN DENYING A CIRCUMSTANTIAL EVIDENCE INSTRUCTION

¶ 25. Rumfelt claims that the trial court failed to properly instruct the jury on the State’s burden of proof. Again, the State contends that the issue is procedurally barred because Rumfelt failed to preserve the error for appeal. Rumfelt argues that this error is plain error which deprived him of his fundamental right to a fair trial.

¶ 26. If Rumfelt did not make an objection at trial, he must rely on the plain error rule to raise the assignment of error on appeal. Gray v. State, 487 So.2d 1304, 1312 (Miss.1986). The plain error doctrine has two requirements: there must be error and the error must have resulted in a manifest miscarriage of justice. Gray v. State, 549 So.2d 1316, 1321 (Miss.1989). The plain error rule will only be applied if Rumfelt’s fundamental or substantive rights are affected. Grubb v. State, 584 So.2d 786, 789 (Miss.1991).

¶ 27. In Harris v. State, 908 So.2d 868, 871(7) (Miss.Ct.App.2005), the defendant argued that the trial court should have given a circumstantial evidence instruction. Harris argued, despite the fact that his counsel failed to object, the court should address this issue under the plain error doctrine. Id. The Court held that the issue was procedurally barred because counsel failed to object and counsel failed to offer a circumstantial evidence instruction. The court also noted “that not withstanding the procedural bars, Harris’s argument is patently wrong because it is the duty of trial counsel for a defendant to submit a circumstantial evidence instruction.” Id. at 871(¶ 8).

¶28. Although Rumfelt contends that the trial judge had the duty to properly instruct the jury, “[c]ase law does not impose upon a trial court a duty to instruct the jury sua sponte, nor is a court required to suggest instructions in addition to those which the parties tender.” Ballenger v. State, 667 So.2d 1242, 1252 (Miss.1995). This issue is without merit.

IV. WHETHER ERRORS CUMULATIVELY DENIED RUMFELT A FUNDAMENTAL RIGHT TO A FAIR TRIAL

¶29. Rumfelt claims that the cumulative effect of the alleged errors deprived him of his fundamental right to a fair trial. There was no error. Therefore, this issue is without merit.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF YALOBUSHA COUNTY OF CONVICTION OF FELONY CHILD ABUSE WITH A SENTENCE OF TWENTY YEARS INCARCERATION IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YALOBUSHA COUNTY.

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


text:
    James Curtis KELLY, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01961-COA.
    Court of Appeals of Mississippi.
    Aug. 8, 2006.
    Rehearing Denied Nov. 21, 2006.

      Dan W. Duggan, Jr., Brandon, attorney for appellant.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   KING, C.J.,

for the Court.

¶ 1. James Curtis Kelly was ordered to work at the Flowood Police Department to pay off fines by washing cars and doing janitorial work. While working at the police department on June 11, 2003, the Municipal Court Clerk for the City of Flo-wood, Linda Gross, noticed a money bag was missing from a drawer at the municipal building. After an investigation, Kelly was developed as a suspect. After acquiring Kelly’s consent, Lieutenant David Gammill of the Flowood Police Department searched Kelly’s car and discovered the money bag under the back seat. Gam-mill, along with Lieutenant Mickey Young, also from the Flowood Police Department, escorted Kelly back to the police department where Kelly attempted to break free several times. Gammill testified that after being advised of his rights, Kelly made statements regarding the theft to the officers present. Kelly testified that he did not make the statements and that he was not read his rights.

¶ 2. Kelly was tried before a jury in the Circuit Court of Rankin County on August 31, 2004. After a one-day trial, Kelly was found guilty of grand larceny. Pursuant to the violent habitual offender statute, Mississippi Code Annotated Section 99-19-83 (Rev.2000), Kelly was sentenced to life without the possibility of parole. Aggrieved, Kelly asserts one issue on appeal, which we quote verbatim:

The trial court committed reversible error in sentencing [Kelly] to life without parole because the sentence violates the 8th amendment under proportionality.

Finding no error, we affirm.

DISCUSSION

¶ 3. Sentencing is within the complete discretion of the trial court. Hoops v. State, 681 So.2d 521, 537 (Miss.1996). A sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute. Id. at 538 (citing Fleming v. State, 604 So.2d 280, 302 (Miss.1992)). However, proportionality review is required in certain circumstances. Schankin v. State, 910 So.2d 1113, 1119(¶ 23) (Miss.Ct.App.2005).

¶ 4. Prior to this grand larceny conviction, Kelly pled guilty to three charges of armed robberies, one strong arm robbery, and one other grand larceny charge. Therefore, Kelly was sentenced as an habitual offender pursuant to Mississippi Code Annotated Section 99-19-83 (Rev. 2000), which reads:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

¶ 5. Kelly, however, argues that his sentence of life imprisonment without parole was not proportional to the present grand larceny offense. Kelly relies on the United States Supreme Court case of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), for this proposition. In Solem, Helm was convicted of uttering a “no account” $100 check. Id. at 281, 103 S.Ct. 3001. Because it was his seventh offense, Helm was subject to South Dakota’s recidivist statute, and sentenced to life imprisonment without the possibility of parole. Id. The Court held that Helm’s sentence was unconstitutional while stating that, as a matter of principle, a criminal sentence must be proportionate to the crime for which the defendant was convicted, per the Eighth Amendment. Id. at 290. Solem, however, was overruled in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), to the extent that it found a guarantee of proportionality in the Eight Amendment. Hoops v. State, 681 So.2d 521, 538 (Miss.1996). “In light of Harmelin, it appears that So-lem is to apply only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross disproportionality.’ ” Id. (quoting Smallwood v. Johnson, 73 F.3d 1343, 1347-48 (5th Cir.1996)).

¶ 6. Kelly was sentenced within the mandatory statutory limits set out in Mississippi Code Annotated Section 99-19-83 for habitual offenders. Therefore, his sentence was not grossly disproportionate. Although severe mandatory penalties may be cruel, they are not constitutionally unusual, having been employed in various forms throughout our nation’s history. Harmelin, 501 U.S. at 994-95, 111 S.Ct. 2680. The judgment of the trial court is affirmed.

¶ 7. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF GRAND LARCENY AND SENTENCE AS AN HABITUAL OFFENDER TO LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


author: MYERS, P.J.,

text:
    David OUZTS a/k/a David Lee Ouzts, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KM-00432-COA.
    Court of Appeals of Mississippi.
    Sept. 26, 2006.
    Rehearing Denied Jan. 30, 2007.
    K. Elizabeth Davis, Greenwood, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. David Ouzts was convicted in the Holmes County Justice Court of driving under the influence first offense and reckless driving. Following that conviction, Ouzts appealed to the Circuit Court of Holmes County which affirmed the justice court’s ruling. From this ruling, Ouzts appeals to this Court raising the following three issues:

I. THE COURT ERRED IN FINDING THAT HOLMES COUNTY, MISSISSIPPI WAS THE PROPER VENUE FOR THIS ACTION AS TO THE CHARGE OF DUI FIRST OFFENSE.

II. THE COURT ERRED IN FINDING DAVID OUZTS GUILTY OF THE OFFENSE OF RECKLESS DRIVING IN VIOLATION OF MISSISSIPPI CODE ANNOTATED SECTION 63-3-1201.

III. THE COURT ERRED IN FINDING DAVID OUZTS GUILTY OF THE OFFENSE OF DUI FIRST OFFENSE IN VIOLATION OF MISSISSIPPI CODE ANNOTATED SECTION 63-11-30.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On March 14, 2002, David Ouzts was issued traffic citations for reckless driving and DUI first offense by Mississippi Highway Patrolman Jerry Merrill. During a May 3, 2004 hearing in the Justice Court of Holmes County, Ouzts was found guilty of both offenses. Following this conviction Ouzts appealed to the Circuit Court of Holmes County. Ouzts again was found guilty of reckless driving and DUI first offense. Ouzts was ordered to pay a fine of $700, perform forty-eight hours of community service in Holmes County, to attend the MASEP program for the DUI first offense and fined $154 for the reckless driving violation. From the judgment of the Circuit Court of Holmes County, Ouzts appealed to this Court.

¶ 4. While Officer Merrill was performing a traffic stop of an impaired driver, he observed Ouzts traveling at a high rate of speed and on the wrong side of the road. Officer Merrill testified that he moved between his patrol car and the parked car of the other offender fearing for his own safety. Once Ouzts’ truck passed, Officer Merrill entered his patrol ear and gave pursuit. The pursuit began in Holmes County and concluded in Leflore County.

¶ 5. When Ouzts stopped and exited his vehicle, Officer Merrill testified that he smelled alcohol. Ouzts staggered, slurred his speech, had blood-shot eyes, and had to hold on to his truck to steady himself. Officer Merrill directed Ouzts to blow into the portable alcohol detector, which indicated that Ouzts was intoxicated over the legal limit.

¶ 6. Ouzts was then taken by Officer Merrill, in his patrol car, to the Leflore County substation. There Ouzts refused to cooperate with Officer Merrill by blowing into Intoxilyzer 5000. Instead, Ouzts bit on the mouthpiece. After several attempts, the only reading which came from the intoxylizer was “insufficient sample.” Officer Merrill then charged Ouzts with common law DUI and reckless driving, and he was convicted of both in justice and circuit court.

STANDARD OF REVIEW

¶ 7. Our courts have held that the finding of the trial court is to be given the same deference as a jury verdict and will not be reversed upon appeal unless manifestly wrong. Jones v. Jones, 760 So.2d 828, 830 (¶ 10) (Miss.Ct.App.2000) (citing R.C. Constr. Co., Inc. v. Nat’l Office Sys., Inc., 622 So.2d 1253, 1255 (Miss.1993)). In Jones, this Court stated, “ ‘[a] circuit court judge sitting without a jury is afforded the same deference with regard to his findings as a chancellor,’ and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Id. (citing Par Indus., Inc. v. Target Container Co., 708 So.2d 44, 47 (Miss.1998) (quoting Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993))).

¶ 8. This Court set forth the standard of review for findings of a circuit court judge in the case of Bray v. City of Meridian, 723 So.2d 1200, 1202 (¶ 16) (Miss.Ct.App.1998) when it stated that factual findings made by a trial judge sitting without a jury will be upheld when they are supported by reasonable evidence found in the record and are not manifestly wrong or clearly erroneous. In Jones, this Court stated that an appellate court must look to the entire record and must accept “that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact.” Jones, 760 So.2d at 830 (¶ 10) (citing Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983) (quoting Culbreath v. Johnson, 427 So.2d 705, 707-08 (Miss.1983))).

I. THE COURT ERRED IN FINDING THAT HOLMES COUNTY, MISSISSIPPI WAS THE PROPER VENUE FOR THIS ACTION AS TO THE CHARGE OF DUI FIRST OFFENSE.

¶ 9. As his first issue on appeal, Ouzts asserts that venue was not proper in Holmes County due to the stop occurring in Leflore County. We do not agree.

¶ 10. At the close of the Holmes County’s case-in-chief Ouzts made a motion to dismiss the DUI charge due to Holmes County not being the proper venue. The trial court denied the motion. Ouzts argues that since he was stopped in Leflore County and taken to the Leflore Substation, then Leflore was the proper venue for the offense and not Holmes County.

¶ 11. The supreme court has stated that venue is properly established through the testimony of the officer. Bearden v. State, 662 So.2d 620, 625 (Miss.1995). Additionally, Mississippi Code Annotated section 99-11-3(1) (Rev.2000) states that “[t]he local jurisdiction of all offenses, unless otherwise provided by law, shall be in the county where committed.”

¶ 12. As the record reflects, Officer Merrill testified that he first observed Ouzts in Holmes County where he was conducting a stop of another driver. Officer Merrill further testified that he pursued Ouzts into Leflore County from Holmes County. The stop did occur in Leflore County, but Officer Merrill first observed Ouzts in Holmes County. The crime of DUI first offense was committed in Holmes County; therefore, venue was proper. This issue is without merit.

II. THE COURT ERRED IN FINDING DAVID OUZTS GUILTY OF THE OFFENSE OF RECKLESS DRIVING IN VIOLATION OF MISSISSIPPI CODE ANNOTATED SECTION 63-3-1201.

¶ 13. Ouzts raises as his second issue on appeal his conviction of reckless driving. Since reckless driving is defined by statute as “wanton disregard for the safety of persons or property,” he believes there was not enough evidence to convict him of this offense. Ouzts contends that there was a lack of evidence of other cars or people on the highway that could have been endangered by his driving. We do not agree.

¶ 14. Reckless driving is defined by statute as “Any person who drives in such a manner as to indicate either a wilful or a wanton disregard for the safety of persons or property is guilty of reckless driving.” Miss.Code Ann. § 63-3-1201 (Rev.2004). Our supreme court has applied the terms “safety of persons or property” not only to the public, but to the defendant as well. In Barnes v. State, 249 Miss. 482, 484-85, 162 So.2d 865, 866 (1964), the supreme court stated:

The driving of a vehicle in such a manner as to indicate “either a wilful or a wanton disregard for the safety of persons or property” is reckless driving. Miss.Code 1942, Rec., § 8175. This provision, based on the Uniform Vehicle Code, seeks “to prohibit conduct jeopardizing even the driver’s own safety and property, not merely that ‘of others.’ No qualifying language restricts a protection to the person or property of another.” Reckless driving means the commission of conscious acts or omissions which the driver knows or should know create an unreasonable risk of injury or damage. That which is necessary is that the driver should realize the strong probability of harm likely to ensue.

A conviction for reckless driving does not require that the actions of the defendant pose a danger to another person or another’s property, but that the defendant’s actions pose a danger to himself or his property.

¶ 15. The case sub judice provides evidence that Ouzts posed a danger not only to himself, but to Officer Merrill. Officer Merrill testified that while he was securing the automobile of the other driver he heard Ouzts coming toward him at a high rate of speed and on the wrong side of the road. Officer Merrill testified that he had to get between his patrol car and the other car in order to avoid being hit by Ouzts. Additionally, Ouzts was a danger to himself and his property through his actions. Therefore, there is sufficient evidence to support a conviction for reckless driving; this issue is without merit.

III. THE COURT ERRED IN FINDING DAVID OUZTS GUILTY OF THE OFFENSE OF DUI FIRST OFFENSE IN VIOLATION OF MISSISSIPPI CODE ANNOTATED SECTION 63-11-30.

¶ 16. As his final issue on appeal, Ouzts asserts that there was insufficient evidence to support his conviction for driving under the influence of alcohol. Ouzts argues that there is no scientific testing which indicates any alcohol in his blood or on his breath. He contends that without this scientific evidence his conviction for common law DUI under Mississippi Code Annotated section 63-11-30 (Rev.2004) should be overturned. We do not agree.

¶ 17. In Christian v. State, 859 So.2d 1068, 1070-71 (¶¶ 5-10) (Miss.App.Ct. 2003), this Court stated officers could offer opinion testimony as to the intoxication of an impaired driver. In that case, Christian would not submit to an Intoxylizer test. In that case we stated:

The officers did not have to be tendered as experts to testify to those details. Rules 701 and 704 also give the officers the ability to testify to opinions and inferences, even on ultimate issues, as long as the opinions are otherwise admissible. Because the opinions were rationally based on the perceptions of the officers, helpful to the trier of fact, and not based on scientific knowledge, they are admissible. M.R.E. 701 and 704. The trial court did not commit reversible error by admitting the officers’ opinions.

Id. at 1071 (¶ 10). Our supreme court has also ruled that evidence of a defendant’s refusal to submit to breathalyser examination is admissible at trial. Ricks v. State, 611 So.2d 212, 216 (Miss.1992).

¶ 18. Officer Merrill at trial testified that at the time of the stop Ouzts smelled of alcohol, was unsteady on his feet, had slurred speech, and had blood-shot eyes. During the stop Officer Merrill administered a portable breath test that registered Ouzts’ blood alcohol level over the legal limit of 0.08%. Officer Merrill then transported Ouzts to the Leflore County substation where several attempts were made to administer the Intoxilyzer 5000. Before administering the test Officer Merrill prepared an Intoxilyzer 5000 Operational Check List. Officer Merrill testified that he attempted to administer the test, but Ouzts bit down on the mouthpiece which caused the mouthpiece to crack and ultimately caused the Intoxilyzer to register “insufficient sample.” Officer Merrill stated that he changed the mouth piece and attempted to get Ouzts to properly submit to the Intoxylizer test, but Ouzts repeated his previous action. Following these attempts Officer Merrill recorded on the check list that Ouzts had refused to submit to the test. Additionally, Ouzts refused to sign the check list indicating that he had been informed of his right to call for legal or medical assistance. At trial Officer Merrill offered the following testimony concerning statements made by Ouzts:

Ma’am, if I’m not mistaken, Mr. Ouzts’ exact words that he did not want to sign due to the fact that he wasn’t sure if he would pass the test with the slurred speech speaking. And, again, I told him that would be only his right if he chose not to. He did admit that he had been drinking, but he don’t know if he would want to sign anything, much less take the test.

Following the trial, the Circuit Court of Holmes County convicted Ouzts of DUI first.

¶ 19. We find that there was sufficient evidence presented at trial to support Ouzts’ conviction on common law DUI. This issue is without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF HOLMES COUNTY OF CONVICTION OF DUI-FIRST OFFENSE AND FINE OF $700, FORTY EIGHT HOURS OF COMMUNITY SERVICE IN HOLMES COUNTY AND ATTEND THE MASEP PROGRAM; AND CONVICTION OF RECKLESS DRIVING AND FINE OF $154 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: BARNES, J.,

text:
    Maurice WEAVER, Appellant v. Debra PARKS, Appellee.
    No. 2005-CA-00932-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.

      Lisa Mishune Ross, attorney for appellant.
    Louis Joseph Guichet, Brandon, attorney for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Maurice Weaver was found to be in constructive criminal contempt of court for absconding with his minor child, Madison Chloe Weaver, in violation of an agreed order and for his refusal to return and submit to the jurisdiction of the Chancery Court of Hinds County. Unaware of her client’s whereabouts, Weaver’s counsel perfected his appeal, asserting error as follows: (1) the chancellor improperly refused to recuse himself from the criminal contempt hearing, (2) the chancellor failed to make factual findings with respect to the Albright factors when he awarded temporary custody of Chloe to Debra Parks, Chloe’s maternal grandmother, and, (3) Weaver’s rights to due process were violated when the chancellor held an ex parte hearing of Parks’s habeas corpus petition without summons or proof of service. Finding the fugitive dismissal rule applicable to this case, we dismiss Weaver’s appeal sua sponte.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶2. Madison Chloe Weaver was born on October 17, 2003. At the time of Chloe’s birth, her mother, Chastity Cook, and Maurice Weaver were not married nor had the couple taken any other steps to legally establish Weaver’s paternity. Approximately three and one-half months later, on or about February 1, 2004, Chastity Cook passed away. Subsequent to Chastity’s death, Chloe lived with Maurice Weaver and his mother until March 15, 2004. On this date, Debra Parks, Chastity’s mother — and Chloe’s maternal grandmother — took custody of Chloe. Chloe was residing with Parks when the complaint which began the instant action was filed.

¶ 3. On March 29, 2004, Weaver filed a “Complaint for Custody and Paternity” in Hinds County Chancery Court. In this complaint, Weaver sought custody of Chloe and also sought an adjudication of his paternity of Chloe. To this end, Weaver asserted his willingness “to submit to an order requiring the parties to submit to a blood or other genetic test to determine paternity....” A DNA test was performed in May, 2004, establishing the probability of Weaver’s paternity of Chloe to be 99.81%. An agreed order was entered on May 27, 2004, “allowing Maurice Weaver, the natural father of Madison Chloe Weaver, visitation rights ... from 5:00 p[.]m. Friday, May 28, 2004 until 6:00 p.m. Monday, May 31, 2004.” Pursuant to this order, Chloe was to be picked up from and returned to the home of Debra Parks. A second agreed order was entered on June 14, 2004. This agreed order granted regular weekend visitation to Weaver “from 5:00 p.m. Friday, on every first, third, and fifth weekend of a month until 6:00 p.m. Sunday.” Additionally, this order provided for visitation on Wednesdays from 6:00 p.m. to 8:00 p.m. According to the agreed order, at the conclusion of weekend visitation, “Madison Chloe Cook shall be dropped off at the residence of Debra Parks on Sunday at 6:00 p.m. by Maurice Weaver or a member of his family.” The order further provided that at the end of each Wednesday visitation, “Madison Chloe Cook shall be picked up at Maurice Weaver’s Mother’s residence at 8:00 p.m. by Debra Parks or a member of her family.” The foregoing visitation schedule was made by agreement of the parties and order of the court “pending a hearing on Maurice Weaver’s Petition for Custody.”

¶ 4. On or about September 22, 2004, Cathy Weaver Terrell, Weaver’s mother, came to Parks’s residence to pick Chloe up for Weaver’s Wednesday visitation. According to Terrell’s contempt hearing testimony, when she arrived at Parks’s residence, she noticed several red marks on Chloe’s body. The precise nature and severity of the red marks was not known at that time. According to Terrell, after arriving home with Chloe and conferring with Weaver regarding the marks, Weaver “called DHS, contacted his attorney.” Terrell further testified that “DHS had suggested that we at least take the baby to the emergency room and find out what the marks were.” Weaver and Terrell proceeded to take Chloe to the emergency room.

¶ 5. After some time had passed at the emergency room, Terrell called Parks and informed her that Terrell and Weaver, along with Chloe, were at the emergency room. By this time, the 8:00 p.m. deadline for Weaver’s Wednesday visitation had passed. What happened when Parks arrived at the emergency room is somewhat contested. In any event, it is uncontested that Parks expressed her desire that Chloe not see the emergency room doctor that night. Parks’s version is that it was late, almost 10:00 p.m., and that Parks insisted that she would take Chloe to see her pediatrician the following morning. Terrell testified that Parks basically “objected and [asked] who had given this authorization [for Chloe to be treated].” That same night, and while the parties were still at the emergency room, Weaver absconded with Chloe and has since refused to return Chloe to the custody of Parks or to submit to the jurisdiction of the Hinds County Chancery Court.

¶ 6. On September 28, 2004, Parks filed a “Petition for Emergency Hearing and Contempt Charges,” citing Weaver’s violation of the June 14, 2004 agreed order. On October 7, Parks filed a “Petition for Habeas Corpus and Other Emergency Relief.” In this petition, Parks again cited Weaver’s refusal to return Chloe from the Wednesday, September 22 visitation, in violation of the agreed order. Parks requested that physical custody of Chloe be “immediately returned to Debra Parks from Maurice Weaver,” and that a habeas corpus order be entered directing authorities to assist in securing Parks’s custody of Chloe. On the same day the petition was filed, the chancellor entered an “Order of Habeas Corpus and Other Emergency Relief and Writ of Assistance.” This order acknowledged that Parks “has temporary custody of [Chloe] pending a hearing on Maurice Weaver’s Petition for Custody and Debra Parks’ Counterclaim for Custody.” This order further acknowledged that Weaver had failed to return Chloe following visitation as provided for in the “Agreed Order.” Accordingly, the order directed “any ... qualified officer or agency ... to immediately take the body of Madison Chloe Cook from Maurice Weaver, or from his relatives, or from whatever location the minor child is presently located....”

¶ 7. Parks filed another petition for contempt charges on December 14, 2004, citing her inability to locate either Weaver or Chloe and asserting Weaver’s “intentional violation of not only The Order of Habeas Corpus, but also the Agreed Order entered into by this Court.” Parks filed a third petition for contempt charges on January 18, 2005. Weaver responded to this petition, alleging, inter alia, that Parks was unfit to have custody of Chloe and asserting several specific occurrences to support this allegation. As to the contempt charges, Weaver stated that his “intentions were never to dishonor the court order” and that he “was very concerned of the unwillingness of Debra Parks to allow my daughter to be examined by the doctor” regarding alleged flea bites. Weaver proceeded to “ask forgiveness for behaving in a way disallowed by the court order dated June 14, 2004,” stating that his “only concern is the health, safety, and welfare of [his] daughter, Madison Chloe.”

¶ 8. On February 24, 2005, the chancery court entered a “Specification of Constructive Criminal Contempt Charge, Notice of Hearing Thereon and Order to Show Cause.” A summons was issued and served by publication, noticing the show cause order and hearing to be conducted on April 14, 2005. Although Weaver still refused to return Chloe or to otherwise submit to the chancery court’s jurisdiction, a hearing was conducted as noticed and a “Judgment Finding Defendant/Respondent in Constructive Criminal Contempt of Court” was entered on April 18, 2005. Pursuant to this judgment, Weaver was sentenced to a term of twenty-four weeks in the custody of the Hinds County Sheriff and was fined five hundred dollars plus costs of the proceedings. It -is from this judgment of constructive criminal contempt that Weaver’s counsel perfected this appeal.

DISCUSSION

¶ 9. “It is well settled that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” Hires v. State, 882 So.2d 225, 228(¶ 6) (Miss.2004) (citing Ortega-Rodriguez v. United States, 507 U.S. 234, 239, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993)); see also Derrick v. State, 406 So.2d 48 (Miss.1981). The fugitive dismissal rule, or fugitive disentitlement doctrine, operates to limit a litigant’s “access to the judicial system whose authority he evades.” Bagwell v. Dretke, 376 F.3d 408, 410 (5th Cir.2004). Despite the rule’s widespread acceptance, the fugitive dismissal rule is a “blunt” instrument that should only be applied after serious consideration. Degen v. United States, 517 U.S. 820, 828, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996).

¶ 10. Although Mississippi courts have not passed upon the rule’s applicability to the precise situation with which we are presented, the principles that underlie its application in the context of criminal appeals are equally applicable to the case at bar. According to our supreme court, “[t]he rationale behind the rule is that ‘dismissal by an appellate court after a defendant has fled its jurisdiction serves an important deterrent function and advances an interest in efficient, dignified appellate practice.’ ” Hires, 882 So.2d at 228(¶ 6) (quoting Ortega-Rodriguez, 507 U.S. at 242, 113 S.Ct. 1199). Another widely cited rationale for the doctrine’s application is the inequity of allowing a defendant, who has flouted the court’s jurisdiction, to employ the resources of an appellate court when it is very likely that the defendant would ignore an adverse ruling. See, e.g., Ortega-Rodriguez, 507 U.S. at 240, 113 S.Ct. 1199 (stating that it is within court’s discretion to refuse appeal unless convicted party is amenable to court’s judgment); Bagwell v. Dretke, 376 F.3d 408, 410 (5th Cir.2004) (fugitive disen-titlement doctrine limits party’s access to “judicial system whose authority he evades”); Pesin v. Rodriguez, 244 F.3d 1250, 1253 (11th Cir.2001) (dismissing appeal of mother in hiding with her children where “her behavior to date leaves little doubt that she would defy an adverse ruling”); Matsumoto v. Matsumoto, 171 N.J. 110, 134, 792 A.2d 1222 (N.J.2002) (stating that dismissal proper where enforcement was improbable in the event of unfavorable decision to the fugitive parent). In addition to avoiding enforcement difficulties, serving a deterrent function, and promoting principles of efficiency and dignity, the doctrine is also employed to “avoid[ ] prejudice to the other side caused by the appellant’s fugitive status.” Pesin, 244 F.3d at 1253 (citing Empire Blue Cross and Blue Shield v. Finkelstein, 111 F.3d 278, 280 (2d Cir.1997)).

¶ 11. We find the rationale behind application of the fugitive dismissal rule to criminal appeals to be equally relevant to the facts of this case. Moreover, we find ample authority for its application where, as here, a parent absconds with his child in defiance of the court’s jurisdiction. In Pe-sin, the United States Court of Appeals for the Eleventh Circuit noted that while “the ‘classic case’ in which the doctrine has been applied involves the direct appeal of a criminal defendant, the doctrine has also been applied where the fugitive was not a criminal defendant, but instead was a civil litigant who continued to ignore court orders and evade arrest.” Pesin, 244 F.3d at 1253.

¶ 12. The facts of Pesin are very similar to the facts of the instant case. There, a mother refused to comply with a federal court order requiring her to return her children to their father in Venezuela, failed to attend a status conference, and failed to appear at a show cause hearing. Following the mother’s failure to attend the show cause hearing, “the district court found [the mother] in contempt for her multiple refusals to comply with the court’s orders and entered a bench warrant for her arrest.” Id. at 1252. In dismissing the mother’s appeal, the circuit court stated the following:

Osorio has repeatedly defied court orders and ignored contempt sanctions and has continued to evade arrest. Her behavior to date leaves little doubt that she would defy an adverse ruling. Moreover, it would be inequitable to allow Osorio to use the resources of the courts only if the outcome is a benefit to her. We cannot permit Osorio to reap the benefits of a judicial system the orders of which she has continued to flaunt. Accordingly, Osorio’s appeal is dismissed.

Id. at 1253. Other courts faced with similar circumstances have likewise applied the fugitive dismissal rule. See, e.g., Searle v. Juvenile Court for Williamson County, 188 S.W.3d 547 (Tenn.2006); Peppin v. Lewis, 194 Misc.2d 151, 752 N.Y.S.2d 807 (N.Y.Fam.Ct.2002).

¶ 13. Mindful of the United States Supreme Court’s admonition that the fugitive dismissal rule is a “blunt” instrument to be given serious consideration, we find that the interests furthered by the Mississippi Supreme Court’s application of the fugitive dismissal rule in Hires will be equally served by our dismissal of Weaver’s appeal in the case sub judice. Conduct which jeopardizes the health, safety, and welfare of a child is certainly worthy of deterrence, and this Court is entitled to the same dignity and efficiency in the context of a criminal contempt appeal as is demanded in the context of a criminal appeal. Furthermore, we find the reasoning employed by other jurisdictions faced with circumstances similar to those before this Court to be particularly relevant. Weaver has unmistakably ignored the orders of the chancellor in the proceedings below and even acknowledged this fact in his response to one of Parks’s contempt petitions. Weaver remains at large with Chloe, them whereabouts and Chloe’s health status unknown. Weaver’s conduct to date leaves little doubt that he would not abide by an adverse ruling. Allowing Weaver to employ this Court’s resources only if the outcome is favorable to him would be an affront to the dignity of this Court and would only encourage such behavior in the future. Simply stated, “[w]e cannot permit [Weaver] to reap the benefits of a judicial system the orders of which [he] has continued to flaunt.” Pesin, 244 F.3d at 1253.

¶ 14. Accordingly, we dismiss Weaver’s appeal sua sponte. However, as one of our primary concerns in employing the fugitive dismissal rule in the instant case is the safe return of Chloe, should Weaver return Chloe to the temporary custody of Parks and submit to the jurisdiction of the Chancery Court of Hinds County, as well as to the jurisdiction of this Court, within thirty days of this order, Weaver’s appeal will be reinstated. See Derrick v. State, 406 So.2d 48 (Miss.1981) (stating that fugitive “dismissal shall be subject to be reinstated on motion of appellant showing good cause therefor”); see also United States v. Awadalla, 357 F.3d 243, 247-50 (2d Cir.2004) (discussing the court’s “discretion to dismiss [the fugitive’s] appeal with or without prejudice”).

¶ 15. THIS APPEAL IS DISMISSED SUA SPONTE. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Throughout the record, Madison Chloe Weaver is also referred to as Madison Chloe Cook. While the record does not make clear which is Chloe’s legal name, we note that these two names refer to the same minor child. We will use the former name when referring to the minor child; however, the latter name may appear by way of excerpts from the record.

      . The record does not reflect that any of the parties genuinely disputed that Weaver was Chloe’s father; however, this fact was not legally established until after initiation of the instant action.

      . According to the record, Weaver moved in with his mother, Cathy Weaver Terrell, after the death of Chastity. The agreed order provided that visitation would take place in the home of Weaver’s mother.

      . Contrary to Weaver’s argument on appeal, this habeas corpus order did not grant temporary custody of Chloe to Parks, it simply acknowledged what had been established by the June 14, 2004 "Agreed Order.” Furthermore, the order has never been carried out as the whereabouts of Chloe and Weaver remain unknown.

      . At the beginning of the constructive criminal contempt and show cause hearing, counsel for Weaver made a motion that the chancellor recuse himself from the case, and this motion was denied. During a subsequent colloquy between the chancellor and Weaver's counsel, the chancellor reiterated that he would not recuse himself from presiding over the hearing. In the court's “Judgment Finding Defendant/Respondent in Constructive Criminal Contempt of Court,” the chancellor stated that Weaver's fears regarding the court’s attitude toward a racially mixed child were "unfounded and irrational.” The chancellor further noted that, prior to the contempt hearing, "the Court volunteered to step aside in the event the child was returned safely to the Court forthwith, and obtained consent of one of the African-American Chancellors in Hinds County to hear all remaining proceedings, an offer which was declined.”

      . The whereabouts of Weaver and Chloe are still unknown, and since the night of September 22, 2004, the only individuals to have admittedly seen Weaver and Chloe are Weaver’s father, Cordell Weaver, and his mother, Cathy Weaver Terrell. Both Cordell and Terrell admitted seeing Weaver and Chloe at some point shortly after Christmas, 2004.

      . In Awadalla, the court devoted considerable discussion to this issue. While the court ultimately dismissed the fugitive appellant’s appeal with prejudice, the court nevertheless acknowledged cases from both the United States Court of Appeals for the Second Circuit and from the United States Supreme Court where fugitives were given "a short grace period in which to return to custody before their appeals would finally be removed from the docket.” Awadalla, 357 F.3d at 248 (citing United States v. Sotomayor, 592 F.2d 1219, 1220 n. 1 (2d Cir.1979) (30 day grace period); United States v. Sperling, 506 F.2d 1323, 1345, n. 33 (2d Cir.1974) (30 day grace period); Stern v. United States, 249 F.2d 720, 722 (2d Cir.1957) (60 day grace period)).