author: KING, C.J., for the Court.

text:
    Lebarron Emon CHATMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00031-COA.
    Court of Appeals of Mississippi.
    July 25, 2006.
    Rehearing Denied Jan. 23, 3007.

      Ross Parker Simons, attorney for appellant.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   KING, C.J., for the Court.

¶ 1. Lebarron Emon Chatman was found guilty of depraved heart murder by a Jackson County Circuit Court Jury. Chat-man now appeals, raising the following issues which we quote verbatim.

I. The State sandbagged the Defense with late-filed jury instructions giving only notice that it would attempt to secure a conviction on the theory of depraved heart murder, despite the fact that Mr. Chatman was indicted for deliberate design murder. Furthermore, permitting the State to present depraved heart murder as an additional and unindicted theory of the crime violates the holding of Quick v. State.

II. The evidence in Mr. Chatman’s case was sufficient to prove only manslaughter, and therefore his case should be remanded for re-sentencing under the manslaughter statutes. Additionally, the record supports the fact that this was a case of imperfect self-defense, and therefore Mr. Chatman should only have been convicted of manslaughter at most.

III. The trial court erred in permitting Dr. Paul McGarry to exceed the scope of his expertise, in allowing him to present to the jury evidence that should only have been presented by an expert in crime scene re-enaction

IV. The prosecution committed prose-cutorial misconduct and violated Dawson v. Delaware with unsupported remarks and implications about putative gang affiliation directed at Mr. Chatman.

V. The sentencing dictates of Miss. Code Ann. 47-5-139 violate Mr. Chatman’s equal protection rights under the Fourteenth Amendment to the United States Constitution and his corresponding rights under the Mississippi Constitution in that he will serve a much longer life sentence due to his youth, than anyone who is 50 years old or older at the time he or she is sentenced to life.

Finding no error, we affirm.

FACTS

¶2. On the afternoon of June 14, 2002, Chatman, Timothy Lee McGilvary, and Michael Burbage went to Anthony James’ residence in Ocean Springs to inquire about a debt which James owed to Chat-man’s girlfriend. James explained that he did not have the money, but that he would “straighten it out.” Chatman, McGilvary, and Burbage then left in McGilvary’s girlfriend’s car. Later that evening, Chatman and his two friends again drove past James’ residence. According to Jarran Smith, who shared the residence with James and several others, when Chatman and his friends saw James outside of the house, they backed up and pulled into the driveway. Smith testified that Burbage had a bandana tied around his face, which meant that a fight was soon to occur. Smith stated that he initially armed himself with a brick, but when the men exited the vehicle and began shaking hands, he put the brick down. The subsequent events were in dispute at trial.

¶ 3. According to Smith, McGilvary exited the vehicle and began asking James for the money that was owed to the girlfriend. McGilvary then tapped on the trunk of the car, and someone inside the vehicle popped the trunk. McGilvary retrieved a 20-gauge pump shotgun from the trunk and began pointing it at James and Smith. Smith testified that McGilvary and Chat-man began arguing over who was going to hold the gun, and Smith escaped by foot. Smith stated that the last thing he saw was Chatman pointing the gun at James and asking for the money. Before Smith made it to a neighbors’ house to call the authorities, he heard several shots.

¶ 4. Chatman claims that he went back to talk to James about the money owed to his girlfriend, and that when James indicated that he still did not have the money, McGilvary and Burbage grabbed James from behind and began fighting him. Chatman testified that during the fight, he saw an unidentified man standing near the house “making a move for something ... as if to pull out a pistol or a weapon.” Chatman testified that he then fired warning shots in order to deter the unidentified man from shooting him first. He claims that James ran into the line of fire. Chat-man put the gun back in the trunk, and he, McGilvary, and Burbage fled the scene. Smith and Chatman were the only eyewitnesses that testified at trial.

¶ 5. Forensic pathologist Paul McGary testified that Jámes’ cause of death was a gunshot wound to the chest which penetrated his lungs, heart, liver, stomach, and intestines and caused internal bleeding and punctures to the lungs.

ANALYSIS

Issue I

¶ 6. Chatman was indicted under Mississippi Code Annotated Section 97-3-19(l)(a) for deliberate design murder. He argues that by allowing the State to present a jury instruction on depraved heart murder, his preparation for his defense was compromised. This familiar issue has long been resolved in our state’s jurisprudence. Although the structure of Section 97 — 3—19(l)(a) and (b) appears to create two distinct categories of murder, Mississippi case law has established that deliberate design murder and depraved heart murder have coalesced into one. Catchings v. State, 684 So.2d 591, 599 (Miss.1996) (citing Mallett v. State, 606 So.2d 1092, 1095 (Miss.1992)). Although the statutory language defining depraved heart murder does not clearly state the requirement for deliberate design or malice aforethought, depraved heart murder involves an act so reckless that malice or deliberate design is implied. Windham v. State, 602 So.2d 798, 801 (Miss.1992). Therefore, Chat-man’s defense was not prejudiced by the court’s granting of the depraved heart murder instruction. His reliance on Quick v. State, 569 So.2d 1197 (Miss.1990), an assault case, is misplaced.

ISSUE II

¶ 7. Although not worded as such, Chatman’s second issue is a challenge to the weight and sufficiency of the evidence. A verdict is legally sufficient if any rational juror could have found that the State proved each element of the crime beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843-4 (¶ 16) (Miss.2005). When reviewing a challenge to the weight of the evidence, this Court will not disturb a jury verdict unless allowing it to stand would sanction an unconscionable injustice. Id. at (¶ 18).

¶ 8. Although Chatman claimed that he did not intend to shoot anyone, he did shoot into a home where people were present, which is a textbook example of depraved heart murder. Windham, 602 So.2d at 802. The jury was instructed on manslaughter and self-defense, but returned a verdict of depraved heart murder. Testimony from both Chatman and Smith supports the jury’s verdict, and allowing the verdict to stand will not sanction an unconscionable injustice. This issue is without merit.

ISSUE III

¶ 9. This court employs an abuse of discretion standard of review in determining the propriety of a trial court’s decision to allow expert testimony. Marbra v. State, 904 So.2d 1169, 1176 (Miss.Ct.App. 2004) (citing Puckett v. State, 737 So.2d 322, 342 (¶ 57) (Miss.1999)). Further, this Court will not reverse a trial court’s decision that an expert is qualified to testify unless the expert was clearly not qualified. McGowen v. State, 859 So.2d 320, 334-35(¶ 50) (Miss.2003) (citing Duplantis v. State, 708 So.2d 1327, 1338-39(¶45) (Miss.1998)).

¶ 10. Dr. Paul McGarry has taught pathology as a professor for twenty-five years. He has performed autopsies for Mississippi Gulf Coast coroners for over sixteen years, and has testified as an expert pathologist many times in Mississippi courts. McGarry opined at trial that due to the oval, rather than circular, pattern of gunshot wounds on James’ chest, he was probably in an upright position, leaning forward when he was shot. McGarry went on to state, “And if he were leaning forward over that sofa that was in the picture, it would place that part of his chest....” Defense counsel then objected to McGarry’s speculation. The court ruled that McGarry could testify as to the position the victim was in when he was shot, but that McGarry could not speculate as to what James may or may not have been leaning over when shot.

¶ 11. Our supreme court has held that forensic pathologists may testify about wounds of the deceased. Id. at 335(¶ 53) (quoting Holland v. State, 705 So.2d 307, 341 (¶ 127)(Miss.l997)). McGarry based his opinion that James was in an upright position leaning forward when he was shot on the pattern of the gunshot wounds on his chest. We find that McGarry’s expert opinion was permissible, and that the trial court did not abuse its discretion.

ISSUE IV

¶ 12. Chatman’s next assignment of error involves an improper statement made by the prosecutor during closing arguments. The following exchange occurred during the State’s closing argument,

Prosecutor: These guys were tough guys, ladies and gentlemen. Burbage
..., McGilvary, and [Chatman], they thought they were tough 'guys, ladies and gentlemen, gang bangers, big tough guys. They’re going to collect a debt like they see in the movies.
Defense: Your Honor, I’m going to object to the reference to gang bangers. There’s no-there’s not such a thing. I think that’s very prejudicial, and I object to it.
Prosecutor: There’s absolutely evidence of it, Judge. This is an indication from the witness stand, and this is a sign that people use that want to go gang bang when they approach.
The Court: I will sustain as to “gang bang,” but I will find that he can reference what the witness said with respect to what that bandana meant. That’s in the record.
Prosecutor: Disregard the use of that word that I just used, but y’all know what I’m talking about.
Defense: Object. He turned around-you told him not to do it, and he turned around and said, you know what I’m talking about. I object to that.
The Court: Overruled. Overruled. He clarified it as tough guys. The jury will disregard “gang bangers.”

¶ 13. Attorneys are given broad latitude in making closing arguments. Wells v. State, 698 So.2d 497, 506 (Miss.1997). In determining whether a prosecutor’s statements warrant a reversal, this Court must determine whether the statements created an “unjust prejudice against the accused resulting in a decision influenced by prejudice.” Echols v. State, 759 So.2d 495, 498 (Miss.Ct.App. 2000) (quoting Davis v. State, 530 So.2d 694 (Miss.1988)).

¶ 14. Although defense counsel’s second objection to the State’s back door reference to Chatman as a gang member should have been sustained, we find that this error was harmless. The jury had ample evidence to support their verdict without the necessity of finding that the prosecutor’s improper comment swayed their ultimate decision. Chatman himself testified that he fired the shots that killed James. Accordingly, we find that the improper statement made by the State did not effect the jury’s finding of guilt. Notwithstanding our finding that this was harmless error, we admonish our prosecutors that this is highly improper conduct, and will not always be held to be harmless.

ISSUE Y

¶ 15. Chatman’s final assignment of error is that Mississippi Code Annotated § 47-5-139 violates his equal protection rights. Mississippi Code Annotated § 47 — 5—139(l)(a) states,

An inmate shall not be eligible for the earned time allowance if the inmate was sentenced to life imprisonment; but an inmate, except an inmate sentenced to life imprisonment for capital murder, who has reached the age of sixty-five (65) or older and who has served at least fifteen (15) years may petition the sentencing court for conditional release.

¶ 16. Chatman argues that the statute impermissibly discriminates based on age because an inmate who is fifty years or older at the time he is sentenced to life imprisonment must only serve fifteen years before he is eligible to petition the court for early release, whereas Chatman, who was twenty-five years old at the time he was sentenced to life imprisonment, must serve forty years before he will be eligible for conditional release. In Martin v. State, the supreme court found that an equal protection argument based on Mississippi Code Annotated § 47-5-139(l)(a) is not ripe for review on direct appeal. 871 So.2d 693, 702(¶33) (Miss.2004). Accordingly, this issue is non-justiciable.

¶ 17. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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

      . Chatman testified that at the time of the incident he did not recognize the person he believed to be pulling out a gun. However, after seeing Smith testify at trial, Chatman said that he recognized Smith as the man he believed was about to pull out a gun.


source: Caselaw Access Project

author: GRIFFIS, J., for the Court.

license: Public Domain

text:
    Robert H. WILLIAMS and Any Unknown Heirs-at-Law of Travis and Florence Williams, Appellants v. The ESTATE OF John Horace WILLIAMS, Deceased, by Gloria FAIRLEY, Executrix, Appellee.
    No. 2005-CA-00601-COA.
    Court of Appeals of Mississippi.
    Sept. 5, 2006.
    Rehearing Denied Jan. 30, 2007.

      William W. Dreher, Jr., Gulfport, attorney for appellant.
    Tadd Parsons, Wiggins, Jack Parsons, attorneys for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J., for the Court.

¶ 1. The Estate of John Horace Williams, represented by the executrix Gloria Fairley, filed suit against Robert H. Williams and the unknown heirs of Travis and Florence Williams to confirm title to certain real property in Stone County. Robert filed a counterclaim to quiet and confirm an undivided interest in title in himself. The chancellor ruled that John had adversely possessed the property since 1960 and confirmed title in the Estate. We find no error and affirm.

FACTS

¶ 2. In 1895, Travis and Florence Williams purchased a certain parcel of land in what is now known as Wiggins, Stone County, Mississippi. Travis died intestate in 1935, and Florence died intestate in 1960. The land, consisting of fifty-one acres, went to their nine children as tenants in common. These children were R.T. Williams, Petral Williams, Evert Williams Bullock, Flora Williams Johnson, John Horace “Preacher” Williams, Tommy Williams, Kizer Williams, Louis Charles Williams, and Rachel Williams Fairley. The appellant Robert Williams is Kizer’s son, and the estate’s executrix Gloria Fair-ley is Rachel’s daughter.

¶ 3. In 1966, John returned home from the military and moved onto the property. From that time on, he insisted that anyone, including his family, who wanted to visit or use the property get permission from him first. The prevailing belief in the community was that the property belonged to John. Although his sister Rachel and her children lived in the house with John, it was only through his permission. Gloria returned to the home in 1982 to take care of her sick, elderly mother and uncle. John’s daughter Jenice Williams Clendening lived in the house as well. John was in charge of all maintenance and improvements to the land. Kizer and another brother helped around the property, such as repairing the roof. However, John always paid them for their work. John’s brothers and sisters referred to the land as John’s. On a few occasions, John asked his brothers to leave the property, and they did.

¶ 4. During 1994 through 1995, John obtained deeds from two of Flora’s children and two of Rachel’s children which purported to give him their interest in the land. The deeds stated, however, that they already recognized John as the sole, exclusive owner of the property. From 1997 to 1999, Robert obtained deeds from R.T., Petral, and all five of his own sisters which purported to give their interest in the property to him. On March 29, 2001, shortly before his death, John deeded 1/32 of his interest in the property to Gloria.

¶ 5. The only time that a family member’s animals went on the land without John’s permission was when Robert placed them there. However, he did not do this until 2001, when John became hospitalized and confined to a wheelchair. When-John returned home and found out, he was so angered that he threatened to shoot the cows and Robert. Gloria’s son Derrick Fairley hid John’s guns to keep John from killing Robert and his animals.

¶ 6. John died later that year. The beneficiaries of his will include Jenice, Gloria, and Derrick. On November 8, 2002, John’s estate filed suit against Robert and Travis’s and Florence’s estates to declare John’s estate as the sole owner of the property. On September 9, 2003, Robert petitioned to have Travis and Florence’s estates opened and to determine heirs. He listed the subject property as the only asset of their estates. The cases were consolidated. After a two-day trial, the chancellor found that John adversely possessed the property from his co-tenants; therefore, his estate was the sole owner of the property.

STANDARD OF REVIEW

¶ 7. The question of whether adverse possession was proven by clear and convincing evidence is a factual determination made by the chancellor. Bacot v. Duby, 724 So.2d 410, 419(¶44) (Miss.Ct. App.1998). A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So.2d 623, 625(118) (Miss.2002). This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 625-26(¶ 8). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶5) (Miss.2002).

ANALYSIS

¶ 8. Robert asserts that the chancellor erred in finding that John adversely possessed the land. As the party who claimed adverse possession, John’s estate bore the burden of proving it by clear and convincing evidence. Bacot, 724 So.2d at 419(¶ 46). John’s -estate had to prove that his possession or occupancy of the property was (1) under claim of ownership, (2) actual or hostile, (3) open, notorious, and visible, (4) continuous and uninterrupted for ten years, (5) exclusive, and (6) peaceful. Id. There is an additional element in order to adversely possess the interests of co-tenants. Id. at 419(¶ 47). His estate must also prove ouster. Jordon v. Warren, 602 So.2d 809, 814-15 (Miss.1992). Ouster is unequivocal notice by one co-tenant that he intends to adversely possess the claims of his fellow co-tenants. Id. at 815. Robert contends that John’s estate failed on three elements: exclusivity, hostility, and ouster. John’s estate responds that there was substantial credible evidence to support the chancellor’s finding of adverse possession.

I. Was there substantial, credible evidence that John’s possession was exclusive?
II. Was there substantial, credible evidence that John’s possession was hostile?

¶ 9. The chancellor found that Robert admitted that John’s possession of the property w;as both exclusive and hostile when Robert failed to respond to the requests for admissions served by John’s estate. The chancellor also found the evidence at trial supported these admissions.

¶ 10. Rule 36(a) of the Mississippi Rules of Civil Procedure provides that where a party does not respond to requests for admission within thirty days, the requests are deemed admitted. The admission conclusively establishes the matter for the pending litigation unless the trial judge allows withdrawal or amendment. M.R.C.P. 36. The chancellor held a hearing on whether to deem the requests admitted. John’s estate served Robert with the requests on November 11, 2002. By February 14, 2003, there was still no response. John’s estate moved for summary judgment on the basis of the admissions. The chancellor deemed the requests admitted, but found they did not establish ouster or a definite time period as to when the adverse possession began to run. Robert does not challenge the chancellor’s actions with regard to the admissions. Indeed, pursuant to Rule 36(a), these requests were deemed admitted unless the chancellor permitted amendment or withdrawal. Id. The rule is enforced according to its terms. Martin v. Simmons, 571 So.2d 254, 256 (Miss.1990).

¶ 11. By virtue of admitting the matters included in the requests for admissions, Robert admitted the following:

REQUEST NO. 1: ... John H. Williams had exclusive use, possession and control of the property in question and used it as his own from the mid-'50’s until his death.
REQUEST NO. Ip: ... John H. Williams held out to the public the property in question was his own and had exclusive use, possession and control of the property in question since his retirement out of service until his death.
REQUEST NO. 5: ... John H. Williams never permitted anyone else to use the property except himself after the death of his mother.
REQUEST NO. 6: ... John H. Williams required all of the brothers and sisters and their heirs to remain off the property as long as he lived.
REQUEST NO. 11: ... John H. Williams would never permit any other persons, even their heirs, or cattle or horses on the pastures.

Exclusive use was expressly admitted. As for hostility, it means “an assertion of title superior to the potential competing claims of anyone else; it can be rebutted by showing that the actual record title owner gave permission to begin the possession.” Lynn v. Soterra, Inc., 802 So.2d 162, 166(¶ 14) (Miss.Ct.App.2001). By virtue of the admissions, Robert conceded that John asserted that he had a superior title to the land than that of his co-tenants.

¶ 12. It was then Robert’s burden to prove that John’s possession began permissively, in order to rebut Robert’s own admission that it was hostile. Id. at 167(¶ 14). The evidence at trial of permissive use was the testimony of Robert’s witness Lovelt Fairley, who testified, “They let [John] control it.” Lovelt was unclear whether this permission came at the beginning of John’s possession or after years of fighting with his siblings over the land. Later he said that to his personal knowledge none of the co-tenants objected to John living on the property. Lovelt left for the military in 1960 and returned in 1966 to the community. It is unclear whether he was present before or after John began possession in 1966. Robert likewise testified that he never saw an heir object to John living on the property. However, he conceded he did not grow up with his family, and had no knowledge of or interest in the property until Kizer died in 1992. Robert subsequently stated that he did not know how the co-tenants felt about John controlling the property.

¶ 13. There was testimony from Robert’s sister Elva Joyce Husband that around 1965, Kizer objected to John being on the land. This, coupled with Gloria’s testimony and Robert’s admissions, indicated that the siblings, most notably Kizer, were fighting with John over the land before he came into possession of it. This was substantial credible evidence for the chancellor to conclude that Robert did not carry his burden of rebutting the prima facie case of hostility. If anything, he produced conflicting evidence as to whether John’s use was permissive. This issue has no merit.

III. Was there substantial, credible evidence that John unequivocally ousted his co-tenants?

¶ 14. Next, we examine Robert’s argument that there was no evidence of ouster. The chancellor found John ousted his siblings by unequivocal actual notice since 1960. “An ouster of a co-tenant not in possession must be unequivocal notice of some kind to the co-tenant not in possession that the one in possession intends to hold and claim ownership of the property to the exclusion of all others.” Jordon, 602 So.2d at 815. It must be distinctly hostile to the rights of the others so that the intent to adversely possess is clear and unmistakable. Id. The co-tenant alleging ouster has the burden to prove that the others were “unequivocally ousted by actual notice or conduct equivalent thereto.” Id.

¶ 15. For example, in Mosley v. Clark, 362 So.2d 615, 616 (Miss.1978), H.H. Lafferty died intestate in 1947, leaving 177 acres to his children as tenants in common. Two of these children were Fossie Clark and Alfred Mosley. Id. They were the only co-tenants who claimed an interest in the property. Id. The court affirmed the lower court’s finding that Clark adversely possessed seventy-four acres of the land away from her sibling co-tenants. Id. at 617. Mosley admitted he knew Clark and her husband were claiming the seventy-four acres as their own since 1937. Id. He also testified the seventy-four-acre tract was known in the community as the “Clark Place.” Id. The court held this established actual notice of Clark’s claim to possess the land exclusively and not as a tenant in common. Id.

¶ 16. The evidence in this case is similar to that in Mosley. In particular, Archie Batson testified that he was a longtime neighbor and family friend of the Williamses. He was familiar with the family and the land in question since the early 1950s. All of his life, Archie was under the impression it was John’s property. He said the prevailing belief in the community was that the fifty-one acres belonged to only John. He testified that John was mean and even required his siblings to get his permission to go on or use the property. He testified that the siblings did not dare go on the property without getting John’s permission. He said he never witnessed John physically evict his siblings from the land. Batson stated that from the 1950s until the present litigation, he never heard anyone in John’s family claim an interest in the land. Batson testified that the Williams family, including R.T. and Kizer, referred to the land as “John’s place.”

¶ 17. Derrick, who next testified, said he had lived on the property with John since he was born. Derrick maintained that for the first twenty-nine years of his life, there was no other belief in the family but that the property was John’s. At trial in 2004, Derrick was thirty-nine years old. Derrick additionally corroborated Batson’s testimony that family members had to get John’s permission to come onto the property. If the family did not ask permission first, they were asked to leave. When the family members were asked to leave, they did. Derrick testified that although he and Kizer made improvements to the land, they did so at John’s request and were compensated by him. No other family member placed animals on the land with the exception of Robert. However, he did not do this until 2001, when John was bound to a wheelchair. Once John found out, he threatened to kill Robert and his animals. The only family who ever lived with John were Jenice, Rachel, Gloria, Derrick, and Rachel’s other children. Jen-ice was John’s daughter. As for the rest, Derrick said it was only through John’s permission, and if they had been asked to leave they would have to do so.

¶ 18. Maurice Redeemer testified that he came into the family thirty years ago when he married Joanna Fairley Redeemer, one of Rachel’s daughters. He lives down the road from the property in question and worked for John for the last twenty years of his life. He has lived in the community since 1964 and testified that the prevailing belief was that the property was John’s. He never heard John’s co-tenants, including Joanna, claim an interest. He testified that all John’s co-tenants knew that John claimed the land for himself.

¶ 19. Voncile Martin testified that she has been a friend of the Williams family since 1956. John returned home from the service in the early 1960s. She testified that the community had always believed it was John’s property. She verified that he was mean and would not let his co-tenants go on the property without his permission. She said the heirs refer to the farm as John’s place.

¶ 20. Gloria testified she was raised in the house with her mother. She married and left, but returned in 1982 to take care of her mother, who died in 1994. She and Derrick remained to take care of John. Gloria asserted that John’s siblings “knew they could not come there to do anything.” She said he had no hesitancy in telling his siblings that he owned the property from the time the present house was built until his death in 2001. He told them and her repeatedly that he was the sole owner. Gloria said this occurred continuously, as long as she can remember. She said he did not allow any of his siblings “to build anything or tear down or remove anything on or from that property.” She testified that the 1995 deeds from some of the heirs which purported to give their interest to John was done at an attorney’s suggestion. She said those heirs were surprised, because they believed that John was already the sole owner of the property. Nevertheless they signed the deeds at his request with no compensation. The deeds recite that they recognize that John is the sole owner.

¶ 21. Lovelt testified that Augustine and Evelyn Bullock (two of Evert’s children), Johnny and Willie Johnson (two of Flora’s children), and his brother Beotis Fairley demanded their “heir share” from John, but John refused. He admitted that the property was referred to by the family as “John H. Williams’[s] estate.”

¶ 22. Robert testified that no heirs sought permission to use the land, but he never would answer whether or not John told them they had to get permission. Elva testified that relatives used the land without permission, but this was prior to 1968. She further testified that she had no personal knowledge of anything that transpired between John and his siblings.

¶ 23. On this record, we find that there is substantial credible evidence to support the chancellor’s findings of ouster. Every one of John’s co-tenants had actual, unequivocal notice that John was asserting exclusive title and he would not recognize their rights as co-tenants. There was evidence that this occurred as early as Florence’s death in 1960 and as late as John’s retirement in 1966. His exclusive possession continued uninterrupted until 2001. Accordingly, we affirm the chancellor’s judgment.

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

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

      . The record is unclear as to when the house was built. It shows only that was before John retired from the military in 1966.


author: SOUTHWICK, J., for the Court.

text:
    Lynda CRAYTON, Administratrix of the Estate of James H. Crayton, Deceased, Appellant v. Valerie M. BURLEY and Jessica H. Crayton, Appellees.
    No. 2005-CA-01126-COA.
    Court of Appeals of Mississippi.
    Sept. 19, 2006.
    Rehearing Denied March 27, 2007.

      Randolph Walker, attorney for appellant.
    Daniel Keith Tucker, Booneville, attorney for appellees.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   SOUTHWICK, J., for the Court.

¶ 1. The Chancery Court of Alcorn County denied a motion by a father to modify his child support obligation. The mother’s motion that the father should contribute towards their daughter’s college expenses was granted. On appeal, the father challenges both decisions. We affirm.

FACTS

¶ 2. The appellant James Crayton died in May 2006, which was after this appeal was filed. We have granted a motion to substitute his widow, Lynda Crayton, as the appellant.

¶ 3. James Crayton and Valerie Burley had a daughter named Jessica, born to them in 1984. Mr. Crayton, by court order in 1997, was required to make monthly child support payments in the amount of $208. In 2004, Crayton filed a motion to modify the amount of support. Crayton argued that modification was justified due to material and substantial changes in his health and income. Due to the effects of non-Hodgkins lymphoma, he was no longer working. He also asserted that his daughter Jessica had received $3,665 in Social Security dependent benefits due to his disability. Jessica and her mother, Valerie Burley, filed a counterclaim seeking an increase in support.

¶ 4. The most significant factual issue confronting the chancellor was to determine Crayton’s income. The financial information that he was required to file with the court stated that for 2001 he earned $20,897, and in 2002 he earned $17,631.

He listed monthly income of $1,510.43 at the time of the hearing in April 2005. Eventually the chancellor used this stated income to make a minor change to the monthly support obligation from $208 per month to $211.40 per month.

¶ 5. The more important income during this period consisted of the proceeds from an insurance policy. Based upon evidence of what Crayton received that was not needed for medical treatment, Crayton was ordered to pay one-half of Jessica’s college expenses for the 2004-2005 school year and for the first semester of the 2005-2006 school year. The total amount Crayton was ordered to pay for these school expenses was $11,246.50. Crayton’s support obligation ended on November 18, 2005, because Jessica turned twenty-one years old on that date.

DISCUSSION

¶ 6. The chancellor will not be reversed “when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was used.” Kilpatrick v. Kilpatrick, 732 So.2d 876, 880 (Miss.1999).

ISSUE 1: Modification of Child Support and Burden of Proof

¶ 7. Crayton argues that his daughter and her mother did not meet their burden of proof for an increase in Crayton’s support obligation. Instead, Crayton argues that the evidence required a reduction or elimination of support. Crayton concedes that Jessica had additional expenses as a result of attending college. Crayton’s contention is that there was no proof that he was able to pay any additional money in light of his illness and reduced income.

¶ 8. A party seeking modification of child support must show a material change in the circumstances that justify the modification. The factors to be considered in making a determination to modify child support include these:

(1) increased needs caused by advanced age and maturity of the children (2) increase in expenses, and (3) inflation factor. Other factors include (4) the relative financial condition and earning capacity of the parties, (5) the health and special needs of the child, both physical and psychological, (6) the health and special medical needs of the parents, both physical and psychological, (7) the necessary living expenses of the father, (8) the estimated amount of income taxes the respective parties must pay on their incomes, (9) the free use of a residence, furnishings, and automobile and (10) such other facts and circumstances that bear on the support subject shown by the evidence....

Caldwell v. Caldwell, 579 So.2d 543, 547 (Miss.1991).

¶ 9. Crayton alleges that the chancellor’s ruling was procedurally defective because there were no detailed findings on these factors. There is no requirement that a chancellor itemize findings on factors to modify child support. Wright v. Stanley, 700 So.2d 274, 283 (Miss.1997). A party may move for findings of fact and conclusions of law, but Crayton made no request here. M.R.C.P. 52. There is no reversible error in the manner that the chancellor explained his ruling.

¶ 10. Crayton was suffering a severe illness. With this illness came substantial private insurance payments. We have reviewed the record closely on the fact issues regarding the insurance benefits. There are bank records and copies of checks that Crayton received during 2003 and 2004. The insurance policy is not included in the record and its terms were not explained by any witness at trial. Crayton referred to the policy as a “cancer policy” that he purchased about eight years prior to the date of trial. Crayton testified that a disability insurance check would be sent whenever he received a cancer treatment. Crayton stated that Medicare and his Blue Cross Blue Shield policy paid for about ninety percent of the treatment costs. The other ten percent, which Crayton stated was about $500 per treatment, was paid from the policy benefits. Crayton testified that his personal payments for treatments totaled about $8,000 in 2003 and would be about the same for 2004. He conceded that the remainder of the money was for him to use in any. manner he desired.

¶ 11. As proof of Crayton’s ownership of the benefits, we note that each payment was made by check from National Travelers Life Company and National Life Company, payable solely to James Cray-ton. No endorsement of any other party was required. Crayton deposited these checks into a account owned jointly with his wife, but we can only conclude on this record that Crayton alone was the beneficiary of the disability policy. His commingling the funds in a joint account does not affect the chancellor’s obligation to consider these payments as income to Crayton. The amount of the support obligation for children is based on a parent’s “adjusted gross income,” a term which includes “gross income from all potential sources that may reasonably be expected to be available to the absent parent including, but not limited to ... any other payments made by any person, private entity,” or any other entity. Miss.Code Ann. 43-19-101(3)(a) (Rev.2004). Insurance benefits that were not needed for Cray-ton’s treatment should be considered in calculating support.

¶ 12. In 2003, Crayton received just over $56,000 in disability insurance payments and was able to keep around $48,000. In 2004, Crayton received over $52,000 in disability insurance payments and over $14,000 in Social Security back pay; he used only $8,000 for treatment reimbursement payments. Counsel for Crayton has suggested that the remaining disability insurance money was obligated for other treatments and expenses. There is no evidence to support this statement. It appears that most of the policy benefits were spent, but nothing in the record refutes that Crayton had complete discretion over these funds beyond approximately $8,000 per year.

¶ 13'. Crayton did not reveal the insurance policy money in the financial statement that he filed with the chancery court. The chancellor was inclined to penalize Crayton for not accurately representing his income but did not. In determining whether to modify the support obligations, the chancellor considered the daughter Jessica’s increased expenses, the financial condition of the parties, the health and needs of the father and daughter, and various living expenses. Crayton sought a reduction in child support, but the chancellor was not persuaded. The chancellor considered the relevant factors in deciding to increase monthly child support, though only by the de minimis amount of three dollars. The substantial change was in requiring a contribution towards Jessica’s college expenses. We consider that part of the modification below.

¶ 14. Crayton also argues that assets of his wife were considered in determining his support obligation. The chancellor assured himself that Mrs. Crayton’s income was not included in determining if Mr. Crayton had the resources to pay college expenses. The calculations of income were based upon voluminous records detailing Crayton’s income from tax returns and bank deposits. A determination was made of Crayton’s income that disregarded any income of his wife.

¶ 15. We find no error in the modification of monthly child support.

ISSUE 2: Credit for Child Support

¶ 16; Crayton argues that he was not properly credited for the Social Security benefits that Jessica received as a result of his disability. Crayton argues that no specific finding, calculation, or other determination was detailed to reflect that credit was received for the Social Security payments. The chancellor explained his ruling on a credit in this manner:

under the circumstances, we have given credit here because that $3665 paid by [Crayton] was paid prior to September 18, 2004. I’m giving him credit for whatever credit that might be. But the court feels that sufficient credit is being given in the fact that I am absolutely disregarding the amount of support and income that he received from the insurance policies that he did not show on his 8.05 [financial disclosure].

¶ 17. The chancellor determined that Crayton had income above what he had reported on his financial disclosure to the court. Thus, any credit that he was due for the $3,665 paid in Social Security benefits was more than' offset by the larger increase in monthly support Jessica would have received had the total amount of Crayton’s income been considered in modifying the support.

¶ 18. We do not believe such shortcut calculations are the best approach for a chancellor. Credit on a child support obligation should occur where the child is paid Social Security benefits due to the paying parent’s disability or retirement. Hammett v. Woods, 602 So.2d 825, 828 (Miss.1992). To determine if Crayton was prejudiced by the simplistic equating of the not-applied credit and his unreported income, we have examined what would have been the proper additional child support under the guidelines if the entirety of the insurance payments that were,not used for treatments were considered as income.

¶ 19. Jessica’s mother filed to modify Crayton’s support obligation on September 10, 2004. It is within the discretion of the chancellor to order increased support payments retroactive to the date of a motion to modify. Edmonds v. Edmonds, 935 So.2d 980, 989 (¶¶ 25-26) (Miss.2006) (discussing Kirkland v. McGraw, 806 So.2d 1180, 1184 (Miss.Ct. App.2002)). Likewise, college expenses incurred on or after the date of the motion may be awarded. Id. Thus any increase based on Crayton’s income should have been for expenses allocable after September 10, 2004. His support obligation continued until Jessica became twenty-one years old on November 18, 2005.

¶ 20. The record contains Crayton’s bank records from late 2002 through September 2004. In September 2004 Crayton received $10,274 from his insurance which was paid after the September 10 motion to modify. There was no subsequent updated evidence. Extrapolating from what had been paid in 2003 and 2004, we can reasonably estimate that for the remaining year before the support obligation terminated on Jessica’s twenty-first birthday, Crayton should have received at least $60,000. Had the chancellor ordered the guideline percentage to be applied to this expected income, Crayton would have paid about $8,400 during that twelve months.

¶ 21. The $3,665 Social Security benefits did not nearly equal the amount of support that would have resulted from applying the guideline percentage to all his income. The more significant payments ordered were for college expenses, which we will discuss next. Potentially, the payment of college expenses caused the chancellor not to be overly concerned about making a more accurate adjustment in the monthly support. There is no cross-appeal that a larger modification in monthly support should have been ordered. We find no reversible error.

ISSUE 3: Award of Educational Expense

¶ 22. A parent may be ordered to pay for college education expenses if the child shows aptitude for college, a hearing is held on the matter, the parent has the means to pay for the education, and the parent’s customary lifestyle will not be affected. Saliba v. Saliba, 753 So.2d 1095, 1101 (Miss.2000). The parents may be ordered to pay according to their respective financial situations. Id.

¶ 23. Crayton argues that his daughter Jessica did not meet her burden in proving her aptitude to attend college. Jessica conceded that her grades were “a little shaky” in the second semester of her first year, but she had thereafter proved her ability to succeed in college. Jessica was in her second year of college at the time of the hearing. She testified that she was in good standing as a student and planned to complete a four year nursing program at the University of Southern Mississippi.

¶24. The chancellor accepted Jessica’s testimony that she was able to complete the nursing program. Evidence showed that Crayton had close to $30,000 when Jessica enrolled in college, and was receiving significant amounts of insurance benefits during 2003 and 2004 over which he had total discretionary authority. There was no evidence that the insurance payments would stop during the remaining period of Jessica’s minority. Evidence was submitted that Jessica’s mother’s income had decreased and that Jessica’s living expenses had increased after going to college.

¶ 25. Jessica did not have to demonstrate that she had the aptitude to be the best college student, but she did prove that she had the ability to complete her higher education successfully. The evidence offered was sufficient to show her aptitude. We now look at the amount awarded.

¶ 26. The chancellor ordered Crayton to pay one half of the college expenses for the fall semester in 2005 allocable for the period prior to Jessica’s birthday on November 18. Crayton also was to pay one-half of the college expenses for the 2004-2005 school year, which started only a few weeks prior to the filing of the request for modification on September 10, 2004. Though many of the charges for the 2004 fall semester would likely have been paid prior to the motion for modification, we find no error in making Crayton responsible for half of them since the vast majority of the semester occurred after the motion. We affirm the award of these college costs.

¶ 27. THE JUDGMENT OF THE AL-CORN COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Edmonds is sufficiently recent that a motion for rehearing may alter its analysis; we cite it for the current, if not final, endorsement of our Kirkland approach.


author: ISHEE, J., for the Court.

text:
    Manda GRIFFIN, Individually and as a Wrongful Death Beneficiary, and on Behalf of All Other Wrongful Death Beneficiaries of Gracie M. Stephens, Deceased, Appellant. v. Terry PINSON, M.D., Appellee.
    No. 2005-CA-01376-COA.
    Court of Appeals of Mississippi.
    Oct. 3, 2006.
    Rehearing Denied Jan. 16, 2007.
    Felecia Perkins, Hiawatha Northington, attorneys for appellant.
    Janelle Marie Lowrey, Oxford, Robert K. Upchurch, Tupelo, attorneys for appel-lee.
   ISHEE, J., for the Court.

¶ 1. Manda Griffin filed suit in the Circuit Court of Lee County against Dr. Terry Pinson for negligence in the treatment of her natural mother, Gracie Stephens. The trial court granted Dr. Pinson’s motion for summary judgment. Aggrieved by the trial court’s decision, Ms. Griffin appeals. Finding no error, we affirm.

FACTS

¶2. Ms. Stephens, a sixty-one-year-old woman who was on peritoneal dialysis because of end-stage renal disease, was admitted to North Mississippi Medical Center on December 29, 2000. Ms. Stephens was treated for her symptoms (persistent diarrhea and abdominal pain), but her condition failed to improve. The decision was made to take out her peritoneal dialysis catheter and to convert to hemodialysis by the surgical placement of an internal jugular Mahurkar device. On January 4, 2001, Dr. Pinson performed the surgical procedure; Ms. Stephens died at the medical center on January 11, 2001.

¶ 3. On August 13, 2001, Ms. Griffin filed a wrongful death action, based on medical negligence, against Dr. Pinson in the Circuit Court of Lee County. In the complaint, Ms. Griffin asserted that, during the surgical procedure, Dr. Pinson negligently lacerated Ms. Stephens’s carotid artery, which resulted in a hematoma that ultimately caused her death. On September 12, 2001, Dr. Pinson filed his answer denying all allegations of negligence; he also filed his notice of service of request for admissions, interrogatories, and production of documents. On November 6, 2001, Ms. Griffin filed her notice of service of written discovery, i.e., answers to Dr. Pinson’s first set of interrogatories and responses to Dr. Pinson’s first request for production. In response to an interrogatory requesting the name and qualifications of each expert witness expected to testify, as well as the subject matter and substance of the expert testimony, Ms. Griffin stated only that she would “supplement with expert opinions as required by the Mississippi Rules of Civil Procedure.”

¶ 4. On December 6, 2001, Dr. Pinson filed a motion for summary judgment asserting that Ms. Griffin failed to meet the burden of proof in a medical negligence action, as she lacked the opinion of a qualified medical expert to support her allegations. Ms. Griffin filed a response to the motion for summary judgment on December 31, 2001. Ms. Griffin attached a supplemental response to Dr. Pinson’s expert testimony interrogatory. In the supplemental response, Ms. Griffin identified Dr. Beverly Lewis, a board certified general surgeon from Houston, Texas, as her expert witness, and attached a document detailing Dr. Lewis’s qualifications. Ms. Griffin stated that, based on Dr. Lewis’s review of Ms. Stephen’s medical chart from North Mississippi Medical Center, as well as the death certificate and the complaint, Dr. Lewis would testify as to the applicable standard of care applicable to surgeons. Specifically, Ms. Griffin expected Dr. Lewis to testify that “Dr. Pinson lacerated Ms. Stephens’[s] carotid artery while attempting to place an internal jugular Mahurkar device.” Dr. Lewis was also expected to testify that Dr. Pinson owed a duty to Ms. Stephens and that he breached that duty “by not realizing he was in the carotid artery” and by “lacerating the artery which proximately caused her ultimate death.” The supplemental response was sworn to by Ms. Griffin; however, Dr. Lewis neither swore to the document, nor provided an affidavit.

¶ 5. On March 7, 2002, Dr. Pinson filed a motion to strike Ms. Griffin’s response to the motion for summary judgment on the grounds that Ms. Griffin’s response was not supported by affidavits as required by Rule 56(e) of the Mississippi Rules of Civil Procedure. On October 30, 2002, Ms. Griffin filed a supplemental designation of experts. In that document, Ms. Griffin once again identified Dr. Lewis as an expert witness, but failed to attach an affidavit. Ms. Griffin also identified Dr. Deepak Awasthi, a neurosurgeon and associate professor of neurosurgery at Louisiana State University, as an expert witness.

According to Ms. Griffin, Dr. Awasthi was expected to adopt the opinion of Dr. Lewis that Pinson proximately caused Ms. Stephens’s death when he lacerated her carotid artery. Dr. Awasthi neither swore to the document, nor provided an affidavit. Ms. Griffin responded to the motion to strike on December 20, 2002, asserting that she designated her expert in December of 2001, which was before the October 30, 2002 deadline set by the first scheduling order. In her response to the motion to strike, Ms. Griffin further asserted that the issues raised by Dr. Pinson’s motion to strike became moot when the trial court entered a scheduling order.

¶ 6. On May 27, 2005, the trial court entered an order granting Dr. Pinson’s motion to strike Ms. Griffin’s response to the motion for summary judgment, and on June 1, 2005, the court entered an order granting Dr. Pinson’s motion for summary judgment. On June 30, 2005, Ms. Griffin filed her notice of appeal. She presents the following issues for our review, which we list verbatim:

I.The Circuit Court of Lee County erred in granting summary judgment to Terry Pinson, M.D.
A. Genuine issues of material fact exist as to whether Terry Pinson’s actions constituted negligence, since Manda Griffin timely identified her experts, their opinions and their qualifications.
1. Manda Griffin seasonably supplemented her interrogatory responses with respect to expert witness identification.
2. Manda Griffin complied with court-ordered deadlines requiring designation of her expert witnesses.
3. Under Mississippi law, Manda Griffin’s provision of expert information presents a genuine issue of material fact which precludes summary judgment.
B. The circuit court failed to properly apply the standard for ruling on motions for summary judgment.
1. The [cjourt failed to give the proper weight to the entirety of the record, including pleadings, sworn responses to interrogatories and all other submissions.
2. The [cjourt failed to properly review the record in determining that the response filed by Manda Griffin to the Motion for Summary Judgment was inadequate.

STANDARD OF REVIEW

¶ 7. An appeal from summary judgment is reviewed de novo. Jacox v. Circus Circus Miss., Inc., 908 So.2d 181, 183(¶ 4) (Miss.Ct.App.2005) (citing Cossitt v. Alfa Ins. Corp., 726 So.2d 132, 136(¶ 19) (Miss.1998)). The standard by which we review the grant or denial of summary judgment is the same standard as is employed by the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. Id. (citing Dailey v. Methodist Med. Ctr., 790 So.2d 903, 906-07(¶ 3) (Miss.Ct.App.2001)). Pursuant to Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” The evidence must be viewed in the light most favorable to the nonmoving party. Jacox, 908 So.2d at 184(¶4) (citing Dailey, 790 So.2d at 907).

ISSUES AND ANALYSIS
I.The Circuit Court of Lee County erred in granting summary judgment to Terry Pinson, M.D.
A. Genuine issues of material fact exist as to whether Terry Pinson’s actions constituted negligence, since Manda Griffin timely identified her experts, their opinions and their qualifications.
1. Manda Griffin seasonably supplemented her interrogatory responses with respect to expert witness identification.
2. Manda Griffin complied with court-ordered deadlines requiring designation of her expert witnesses.
3. Under Mississippi law, Manda Griffin’s provision of expert information presents a genuine issue of material fact which precludes summary judgment.
B. The circuit court failed to properly apply the standard for ruling on motions for summary judgment.
1. The [cjourt failed to give the proper weight to the entirety of the record, including pleadings, sworn responses to interrogatories and all other submissions.
2. The [cjourt failed to properly review the record in determining that the response filed by Manda Griffin to the Motion for Summary Judgment was inadequate.

¶ 8. Under this assignment of error, Ms. Griffin’s central argument is that she created a genuine issue of material fact because she seasonably supplemented her response to Dr. Pinson’s expert witness’s interrogatory and she submitted designation of experts pursuant to the scheduling order. In support of this argument, Ms. Griffin notes that she supplemented her response to Dr. Pinson’s expert witness interrogatory by identifying Dr. Lewis as an expert witness on December 28, 2001. Ms. Griffin further notes that her supplemental response complied with Rule 26(b)(4) of the Mississippi Rules of Civil Procedure, as she provided a list of Dr. Lewis’s qualifications, her anticipated opinion, and the basis for the anticipated opinion. Moreover, Ms. Griffin emphasizes that she filed a supplemental designation of experts on October 30, 2002, again identifying Dr. Lewis and adding Dr. Awasthi, Henley, and Limbach to her list of expert witnesses. According to Ms. Griffin, because Dr. Pinson failed to provide the qualifications or opinions of the experts he designated for trial, the manner in which she designated her expert witnesses created a genuine issue of material fact.

¶ 9. Dr. Pinson maintains that summary judgment was appropriate because Ms. Griffin failed to present an affidavit from any of her designated medical experts. Dr. Pinson notes that sixteen months elapsed between the filing of his motion for summary judgment and the hearing on the motion, yet Ms. Griffin did not present an affidavit from an expert witness at the hearing on the motion for summary judgment. Dr. Pinson further notes that thirteen months elapsed between the hearing and the order granting the motion for summary judgment, yet during that time Ms. Griffin still did not submit an affidavit. Moreover, Dr. Pinson argues that Ms. Griffin had notice of the deficiency of her response to summary judgment because of his motion to strike. In that motion, Dr. Pinson urged the court to strike Ms. Griffin’s response to the motion for summary judgment because she failed to provide supporting affidavits for the opinion of Dr. Lewis and because she, Ms. Griffin, was not competent to express a medical opinion. Consequently, Dr. Pinson asserts that Ms. Griffin was not diligent in her response to the motion for summary judgment.

¶ 10. In order to establish a prima facie case for medical malpractice:

the plaintiff (1) after establishing the doctor-patient relationship and its attendant duty, is generally required to present expert testimony (2) identifying and articulating the requisite standard of care and (3) establishing that the defendant physician failed to conform to the standard of care. In addition, (4) the plaintiff must prove the physician’s noncompliance with the standard of care caused the plaintiffs injury, as well as proving (5) the extent of the plaintiffs damages.

Griffin v. McKenney, 877 So.2d 425, 446(¶ 75) (Miss.Ct.App.2008) (quoting McCaffrey v. Puckett, 784 So.2d 197, 206(¶ 33) (Miss.2001)). Rule 56(e) of the Mississippi Rules of Civil Procedure provides that “[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein.”

¶ 11. We find that, in neglecting to provide the affidavit of a medical expert to support her medical malpractice claim, Ms. Griffin failed to comply with Rule 56(e) of the Mississippi Rules of Civil Procedure. The anticipated expert opinion set forth by Ms. Griffin could not have been based on her personal knowledge. Furthermore, Ms. Griffin had more than adequate time to submit the affidavit of a medical expert. It is well established that “[t]he party opposing the motion 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.” McMichael v. Howell, 919 So.2d 18, 21(¶ 5) (Miss.2005) (citing Davis v. Hoss, 869 So.2d 397, 401(¶10) (Miss.2004)). Ms. Griffin chose not to be diligent at her own peril. Therefore, this issue is without merit.

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

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

GRIFFIS AND BARNES, JJ., NOT PARTICIPATING.

      . Griffin also identified Ann Limbach and James Henley as expert witnesses. Limbach, a registered nurse, was expected to testify that the nurses employed by North Mississippi Medical Center failed to comply with nursing standards in the care of Stephens. Henley, a certified public accountant, was expected to testify as to the economic losses resulting from Stephens's death.

      . Two scheduling orders were filed in this case, the first was filed on August 14, 2002, and the second was filed on August 20, 2003.

      . On December 19, 2002, Dr. Pinson filed a designation of expert witnesses, identifying himself, the treating physicians of Ms. Stephens identified in the records of North Mississippi Medical Center, and "[a]ny experts designated by the plaintiff or defendant North Mississippi Medical Center in their designations of expert witnesses.” On January 16, 2003, Dr. Pinson supplemented his designation of expert witnesses by identifying Dr. Donald L. Akers, Jr., as associate professor of surgery at Tulane University. He did not provide Dr. Akers’ anticipated opinion.


author: ROBERTS, J., for the Court.

text:
    Michael WORTHAM a/k/a Michael Andre Wortham, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-CP-01657-COA.
    Court of Appeals of Mississippi.
    Oct. 24, 2006.
    Rehearing Denied March 27, 2007.
    Michael Wortham, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J., for the Court.

SUMMARY OF THE CASE

¶ 1. This is an appeal of a denial of post-conviction collateral relief. Incident to a criminal information alleging two counts of robbery with a deadly weapon, Michael Wortham waived indictment and filed a petition to plead guilty to both counts of armed robbery. On September 30, 2004, Wortham pled guilty during a guilty plea hearing before the Calhoun County Circuit Court. The circuit court accepted Wort-ham’s guilty pleas and sentenced Wortham to two concurrent twenty five year sentences in the custody of the Mississippi Department of Corrections with five years suspended and twenty years to serve. Additionally, the circuit court placed Wort-ham on five years of post-release supervision for each count after his release from custody pursuant to section 47-7-35 of the Mississippi Code (Rev.2004).

¶ 2. On July 13, 2005, Wortham filed a motion for post-conviction relief. The circuit court denied Wortham’s motion -without conducting an evidentiary hearing. Aggrieved, Wortham appeals pro se and raises four issues:

I. WHETHER THERE WAS A SUFFICIENT FACTUAL BASIS TO ACCEPT WORTHAM’S GUILTY PLEA.

II. WHETHER WORTHAM HAD EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE PLED GUILTY.

III. WHETHER THE CIRCUIT COURT DENIED WORTHAM HIS RIGHTS TO DUE PROCESS WHEN IT ACCEPTED HIS GUILTY PLEA WITHOUT CONVENING A JURY.

IV. WHETHER WORTHAM IS ENTITLED TO RELIEF DUE TO THE CUMULATIVE EFFECT OF ERRORS.

Finding no error, we affirm.

STANDARD OF REVIEW

¶ 3. In reviewing a circuit court’s decision to deny a petition for post-conviction collateral relief, we will not disturb the circuit court’s factual findings unless they are clearly erroneous. Boyd v. State, 926 So.2d 233(¶ 2) (Miss.Ct.App.2005). However, we review questions of law de novo. Id.

ANALYSIS

I. WHETHER THERE WAS A SUFFICIENT FACTUAL BASIS TO ACCEPT WORTHAM’S GUILTY PLEA.

¶ 4. Wortham claims that “[t]he trial court failed to find that there was a factual basis for the plea of guilty and it was therefore involuntary as a matter of law.” Though Wortham frames this issue as a question of whether there was a factual basis for his guilty plea, he essentially argues that his attorney gave him erroneous advice prior to his guilty plea. According to Wortham, his attorney erroneously advised him that he faced a life sentence if he pled not guilty to two counts of armed robbery. Wortham reasons that he is entitled to post-conviction collateral relief just like the appellant received in Odom v. State, 483 So.2d 343 (Miss.1986).

¶ 5. It is important to point out the distinguishing features of Wortham’s case and Odom. In Odom, the supreme court reversed a circuit court’s decision to deny a convict’s petition for writ of error coram nobis. Id. at 344. The supreme court found that course of action appropriate because the petitioner in Odom pled guilty incident to his counsel’s erroneous advice that his client would face the death penalty on retrial, when his client had previously been tried for capital murder, found guilty, sentenced to life, and granted a new trial. Id. In Odom, the petitioner received erroneous advice in that the petitioner could not receive the death penalty on retrial because the Double Jeopardy Clause prohibited such where he had received a life sentence during a bifurcated sentencing proceeding. Id.

¶ 6. Wortham cannot compare his experience to the petitioner’s in Odom. Wort-ham has not been to trial. He pled guilty. Wortham did not face the death penalty and never has. Wortham compares his sentence to Odom only in that he claims he received erroneous advice. Even then, Wortham is misplaced. He did not receive erroneous advice, from his attorney.

¶ 7. The criminal information against Wortham alleged two counts of robbery with a deadly weapon in violation of section 97-3-79 of the Mississippi Code. According to section 97-3-79:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

Miss.Code Ann. § 97-3-79 (Rev.2000). In fact, had Wortham insisted on a jury trial and had that jury found Wortham guilty of two violations of section 97-3-79, the jury could have fixed Wortham’s penalty as a life sentence. As such, Wortham’s attorney gave him accurate advice.

II. WHETHER WORTHAM HAD EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE PLED GUILTY.

¶ 8. Here, Wortham claims that he received ineffective assistance. Wortham’s argument under this heading is actually a blended argument of ineffective assistance of counsel and insufficient factual basis for his guilty plea.

¶ 9. To establish a claim of ineffective assistance of counsel, Wortham must demonstrate (1) a deficiency of his counsel’s performance that is (2) sufficient to constitute prejudice to his defense. Swington v. State, 742 So.2d 1106, 1114(122) (Miss.1999) (citing Strickland v. Washington, 466 U.S. 668. 687. 104 S.Ct. 2052. 80 L.Ed.2d 674 (1984); Walker v. State, 703 So.2d 266, 268 (Miss.1997)). In deciding whether Wortham’s counsel rendered ineffective ássistance, this Court examines the totality of the circumstances surrounding the case: Swington, 742 So.2d at (122). Wortham faces a “strong but rebuttable presumption that his counsel’s conduct falls within a broad range of reasonable professional assistance.” Id. at (123). To overcome this presumption, Wortham must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

¶ 10. According to Wortham, his co-defendant actually robbed the store at issue, while Wortham never entered the store and had no prior knowledge of his co-defendant’s plan to rob the store. Wortham claims his attorney knew Wort-ham had no involvement in the robbery. Wortham reasons that his attorney rendered ineffective assistance of counsel in that he advised Wortham to plead guilty and, in effect, to “lie to the court.” Wort-ham asserts that he was in a car while his co-defendant robbed the store. Wortham concludes that, at worst, he was guilty of accessory after the fact to armed robbery. Wortham also feels it necessary to point out that his co-defendant was a prior convicted felon while he had no previous criminal record.

¶ 11. The record contradicts Wortham’s argument; especially the following exchange:

BY THE COURT: Does each one of you understand that in pleading guilty ... you are admitting that you are guilty of that offense or those offenses?
A. Yes. sir.
BY THE COURT: Michael Wortham, are you telling the Court that you are in fact guilty of two separate counts of armed robbery?
A. Yes, sir but.
BY THE COURT: You want to confer with him off the record?
A. No, sir.
BY MR. HOWE: I think what he is trying to say he was an acessary [sic] before the fact?
A. Because actually the paper said I went in with the weapon which I didn’t. I was in the vehicle.
BY THE COURT: All right. Let me look at it for a minute. Well let’s see. All right it says that on or about [the] 31st day of August, 2004 that you did willfully and feloniously commit an assault upon Lucille Lafayette or with a deadly weapon or a gun, specifically a gun in this case by placing her in fear. It says his person but I’m assuming that it’s probably a female with the unlawful and felonious intent to steal and that you did take from Lucille Lafayette a sum of 700 dollars in violation of the law. What you are telling me is that you did not actually do the taking of the money?
A. No, sir, but I was in the vehicle.
Q. And I will ask you about that in a second. In count II it says that you on or about that same day August 31st, 2004 that you committed an assault upon Randy Anglin with a gun for the purpose of putting him in fear of injury and that you took a wallet from that individual and once again you were involved in it but you didn’t have the gun?
A. Yes. I never got out of the vehicle but I was involved in it.
Q. My question then for you as far as that is concerned since we are talking about it is that you knew that this crime was taking place?
A. Yes, sir, I did.
Q. And you were involved in participating in it?
A. Yes, sir.
Q. You knew ahead of time that these people were going to be robbed or?
A. Yes, sir.
Q. You said about to rob this person or these people; is that correct?
A. Yes, sir.
Q. And as an accessary [sic] to the crime you are charged the same way as the principal. In other words, if you are involved in it then you are charged with the same crime as the person who actually held the gun as long as you knew in advance and participated that the crime was going to be committed you understand what I’m telling you?
A. Yes, sir.
Q. Are you telling the Court then based on what you and I have talked about that you are in fact guilty as an accessary [sic] before the fact therefore as a principal to the crime of armed robbery two counts.
A. Yes, sir.

¶ 12. Wortham clearly admitted that he actively participated in the plan to rob two people, that he knew they were going to be robbed, and that he was involved in robbing them. He admitted that he was guilty as an accessory before the fact. A person who aids, assists, or encourages another to commit a crime is as guilty as the principal. Griffin v. State, 242 Miss. 376, 380-82, 135 So.2d 198, 199200 (1961). Accordingly, there was a factual basis for Wortham’s guilty plea and Wortham’s counsel was not ineffective for allowing Wortham to plead guilty. Additionally, it is important to note that Wort-ham faced the possibility of two consecutive life sentences if he was found guilty of both counts of robbery with a deadly weapon. By pleading guilty to two counts of armed robbery, Wortham avoided that possibility. What is more, the State agreed to drop two counts of conspiracy in exchange for Wortham’s guilty pleas.

¶ 13. As for Wortham’s indication that his co-defendant was a prior convicted felon while he had no previous criminal record, even if that is accurate, we fail to appreciate the bearing of that fact. Wort-ham did not receive an enhanced sentence.

¶ 14. Notwithstanding our finding that Wortham has failed to demonstrate a deficiency in his counsel’s performance, Wort-ham has not demonstrated nor even alleged any prejudice that he might have experienced as a result. As such, Wort-ham has wholly failed to meet the second prong under Strickland. Accordingly, we find no merit to this issue.

III. WHETHER THE CIRCUIT COURT DENIED WORTHAM HIS RIGHTS TO DUE PROCESS WHEN IT ACCEPTED HIS GUILTY PLEA WITHOUT CONVENING A JURY.

¶ 15. In this issue, Wortham claims the circuit court violated his due process rights when it sentenced him without convening a jury. Wortham did not raise this issue in his motion for post-conviction collateral relief. As such, this issue is procedurally barred. Fuller v. State, 914 So.2d 1230(¶ 6) (Miss.Ct.App. 2005).

IV. WHETHER WORTHAM IS ENTITLED TO RELIEF DUE TO THE CUMULATIVE EFFECT OF ERRORS.

¶ 16. Wortham claims that he is entitled to post-conviction collateral relief because of the cumulative effect of errors. We have found no error. As such, Wort-ham can experience no cumulative effect. We decline to reverse the circuit court based on the cumulative effect of errors that do not exist.

¶ 17. THE JUDGMENT OF THE CALHOUN COUNTY CIRCUIT COURT DENYING POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CALHOUN COUNTY.

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