author: KING, C.J.,

text:
    Joseph Eugene OSBORNE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2004-KA-00991-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2006.
    Rehearing Denied Aug. 1, 2006.

      James A. Williams, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   KING, C.J.,

for the Court.

¶ 1. On April 7, 2004, Joseph Eugene Osborne was convicted by a Lauderdale County Circuit Court jury for the murder of five-year-old Charles Hopkins. Osborne was sentenced to serve a term of life imprisonment in the Mississippi Department of Corrections. Aggrieved, Osborne raises the following issues on appeal which we quote verbatim:

1. Whether Defendant is denied a fair trial, right to confrontation and due process of law when a child is declared competent to testily but the record shows he has been coached and limits his testimony to what he wants to say and the corroborating circumstances are suspect.

2. Whether a defendant is denied a fair trial, fundamental fairness, confrontation of witnesses and due process of law where hearsay of a child is repeated by those adults who heard same, including an expert where there are contradictory accounts of the child’s statements and there is substantial evidence of opportunity and motive by the adults for implantation of memory in the child.

3. Whether an expert’s testimony that a five-year-old witness is telling the truth supported by the expert’s point by point analysis of factors that purportedly show the child’s credibility denies a defendant a fair trial, due process of law and confrontation of witnesses by buttressing the child’s testimony.

4. [Whether] the court denies defendant a fair trial, due process of law and fundamental fairness when it admits a photograph of life scenes of a young child with his surviving brother that has no relevancy to the issues.

5. Whether defendant is denied effective assistance of counsel when trial counsel failed to object to numerous leading questions propounded to all the State’s witnesses, including, for example 37 to the mother who implanted the child witness’ memory, fails to contradict witnesses through hearing and trial testimony, fails to examine death mask and confront witnesses on size of hand, fails to acknowledge contradictions on opportunity of memory implantation and on mother’s spanking of child, fails to get explanatory instruction on expert testimony and fails to object to vouching by testimonial statement of the prosecutor.

6. Whether the court denies defendant a fair trial, due process of law, and fundamental fairness when it fails to grant a new trial where the evidence is insufficient and may have been the result of bias, prejudice and improper prejudicial evidence.

Finding no error, we affirm.

FACTS

¶2. Joseph Eugene Osborne moved in with his girlfriend, Cindy Hopkins (Hopkins), on or about October 23, 2002. Hopkins lived in Meridian, Mississippi with her two sons, Charles Hopkins (Charlie) and Sam Hopkins. When Osborne moved in with Hopkins, Sam was three-years-old and Charlie was five-years-old.

¶ 3. On November 6, 2002, Hopkins suffered from a stomach virus. Osborne gave her some prescription medicine and offered to watch Charlie and Sam. Hopkins fell asleep at two o’clock in the afternoon. At some point in the afternoon, Kimble Frazier, a friend of Osborne, came to Hopkins’ house to visit Osborne. Osborne fed Charlie and Sam dinner and later put them to bed in the room the boys shared. Hopkins woke up at about 10:30 p.m. She went into the boys’ room and saw that they were asleep. Hopkins then went to the living room and talked to Osborne and Frazier for a couple of hours. She stopped by the boys’ room again at about 1:30 a.m. as she and Osborne were headed to their bedroom to go to sleep. Frazier spent the night, sleeping on a day bed in the living room. Frazier testified that he went to sleep about ten or fifteen minutes after Hopkins and Osborne went to bed.

¶ 4. The next morning Hopkins and Sam awoke about 8 a.m. and watched television. At about 10 a.m. the two ate breakfast. Charlie was still in his room and Hopkins testified she thought he was just sleeping late. After eating breakfast, she went to check on him. When she entered the boys’ bedroom, she saw Charlie lying face down in bed with her prescription Zyrtec pills strewn about the floor. She jerked the covers off of Charlie and saw that he was blue. Screaming and crying, she took Charlie in her arms. Frazier then awoke Osborne who called 911.

¶ 5. Although there was some bruising on Charlie’s body, Hopkins initially believed that Charlie had died from an overdose. The pathologist’s report determined that Charlie’s cause of death was suffocation. Due to the suspicious nature of Charlie’s death, the Meridian Police Department began a homicide investigation. Hopkins, Osborne, Frazier, and Sam were interviewed. Darrell Theall, an investigator assigned to Charlie’s case, said that at the time of the interviews no one in particular was a suspect, or in other words, everyone was a suspect. During the investigation the Department of Human Services temporarily placed Sam with one of Hopkins’ relatives.

¶ 6. One evening in December 2002, Hopkins, Ellen Riley (Hopkins’ sister), and Sam were visiting at Hopkins mother’s house. Hopkins and Riley attempted to prepare an unwilling Sam for bedtime. According to Hopkins and Riley, Sam spontaneously said, “Charlie wouldn’t go to bed that night either.” He proceeded to say that no matter what Osborne tried, Charlie would not go to bed; Osborne even had to chase Charlie to get him back into bed. According to Riley and Hopkins, Riley began asking open ended questions such as “What happened next?” At a pretrial hearing, Riley testified that Sam said that Osborne was mad because Charlie would not go to sleep, but eventually, Osborne made Sam go to sleep. However, Hopkins’ testimony revealed a much more detailed account of Sam’s revelation. She testified that Sam told them that Osborne spanked Charlie to get him to go to bed and that Osborne placed his hand over Charlie’s mouth and “took his breath away.”

¶ 7. The next day Hopkins contacted the Meridian Police Department to set up an interview with Sam. However, the forty-five minute interview was not successful. Sam was non-responsive to many of the questions, and did not reveal the details of the story that he told his mother, aunt, and grandmother just the night before. Hopkins and Sam were later referred by an investigator at the Attorney General’s office to Dr. Catherine Dixon, the clinical director of the Children’s Advocacy Center. During a seven minute taped interview, Sam revealed that he witnessed Osborne kill Charlie and gave a detailed account of the event.

¶ 8. On August 1, 2003, Osborne was indicted by a Lauderdale County grand jury for depraved heart murder. A pretrial hearing was held on December 1, 2003, at which the trial court judge determined that Sam was competent to testify, and that Hopkins, Riley, and Dr. Dixon would be allowed to testify to Sam’s hearsay statements. Osborne’s trial commenced on April 5, 2004. At the close of the State’s case, the defense moved for a directed verdict which was denied. Osborne declined to testify or call witnesses. On April 7, 2004, after six hours of deliberations, the jury returned a verdict finding Osborne guilty of murder.

LAW AND ANALYSIS

I.

¶ 9. Osborne’s first assignment of error is that the trial court erred in finding Sam competent to testify. The determination of a child witness’ competency to testify is left to the sound discretion of the trial court judge. Barnes v. State, 906 So.2d 16, 20 (¶ 15) (Miss.Ct.App.2004) (citing Mohr v. State, 584 So.2d 426, 431 (Miss.1991)). A child is competent to testify if the court determines 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.” Williams v. State, 859 So.2d 1046, 1049 (¶ 13) (Miss.Ct.App.2003) (quoting Mohr v. State, 584 So.2d 426, 431 (Miss.1991)). The trial judge is given great deference in making this determination. Id. at (¶ 14). In Williams we held:

In order to prevail in its effort to exclude the testimony of a child witness, the party opposing the testimony must show that at the time the court made its initial decision that it was apparent that the witness did not meet the criteria for testifying, not that the subsequent testimony was flawed or that the initial determination was possibly erroneous.

Id.

¶ 10. Sam was one week shy of his fifth birthday at the time of the pretrial hearing where he testified as follows. He was three years old when his brother was murdered. He knew the difference between the truth and a lie and he promised to tell the truth. On the date Charlie died, his mom was in bed sick and Osborne was taking care of him and his brother. When asked if Osborne had a friend with him the evening Charlie was murdered, Sam replied, “Only he (Osborne) killed him.” He went on to testify that Charlie would not go to sleep when Osborne told him to. Osborne then spanked Charlie. Charlie still would not go to sleep, so Osborne came back to the bedroom. Sam said he pretended to be asleep, but he was peeking out of one eye to see what was going on. When asked what Osborne did when he came back a second time, Sam replied, “Killed him.” When asked how, Sam illustrated by placing his hands over his mouth. Sam said that Frazier was asleep when Osborne killed Charlie. When asked if Sam remembered to whom he first gave this account, he replied, “I forgot about that part.” He was non-responsive to some questions, and to others he replied that he did not “want to talk about that part”.

¶ 11. The judge made an on the record finding that Sam (1) possessed an above average ability for a four year old to remember events, (2) possessed the ability to understand questions and respond intelligibly, and (3) understood the importance of testifying truthfully. Consequently, the judge ruled that Sam was competent to testify at trial.

¶ 12. In addition to challenging Sam’s competency to testify, Osborne also challenges Sam’s veracity by suggesting that Sam was coached to give the desired testimony. Credibility of testimony is a matter of jury determination. Thorson v. State, 895 So.2d 85, 98 (¶ 17) (Miss.2004) (citing Sheffield v. State, 749 So.2d 123, 125 (¶ 9) (Miss.1999)). Clearly, the jury found Sam’s testimony to be credible.

¶ 13. We find that the trial judge was well within his discretion in determining that Sam was competent to testify. Therefore, this assignment of error must fail.

II.

¶ 14. Osborne’s second assignment of error is that Dr. Dixon, Hopkins, and Riley were allowed to give hearsay testimony regarding Sam’s revelation of his eyewitness account of Charlie’s death. Mississippi Rules of Evidence Rule 801 defines hearsay as an out of court statement offered into evidence to prove the truth of the matter for which it is asserted. Rules 803 and 804 list thirty exceptions in which hearsay testimony is admissible. The trial judge ruled at the pretrial hearing that Dr. Dixon’s testimony was admissible under Rule 803(4) and that Hopkins’ and Riley’s testimony were admissible under Rule 803(24).

¶ 15. Rule 803(4) provides that statements made for purposes of medical diagnosis or treatment are not excluded by the hearsay rule “if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness.” M.R.E. 803(4). A two-part test must be met before Rule 803(4) testimony may be admitted. First, “the de-clarant’s motive in making the statement must be consistent with the purposes of promoting treatment”, and second, “the content of the statement must be such as is reasonably relied on by a physician in treatment.” Davis v. State, 878 So.2d 1020, 1024 (¶ 12) (Miss.Ct.App.2004) (citing Doe v. Doe, 644 So.2d 1199, 1205-06 (Miss.1994)). Osborne implies that this test was not met because the purpose of Dr. Dixon’s interview was not to seek treatment for Sam, but rather a technique employed for the sole purpose of later allowing Dr. Dixon to testify as to Sam’s veracity. The trial judge, however, made an-on-the record finding that the purpose of Dr. Dixon’s session with Sam was relevant to her treatment and recommendation that Sam seek counseling and therapy for the trauma he suffered as a result of witnessing his brother’s death.

¶ 16. Osborne also argues that the trial judge erred in allowing Hopkins and Riley to testify about Sam’s revelation that he witnessed Charlie’s death. The judge admitted this testimony under Mississippi Rules of Evidence Rule 803(24) “other exceptions,” which states,

A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

¶ 17. Hopkins and Riley testified that the then four-year-old Sam spontaneously revealed that he witnessed Charlie’s death. The judge found that Sam’s statements were freely given without any prompting from anyone present. As for the probative value of the statements, the judge found that Sam’s giving the same account to his family members, to Dr. Dixon, and to the court at the pretrial hearing showed the consistency and credibility of Sam’s story. The judge also found that the remaining requirements of Rule 803(24) had been met.

¶ 18. Our supreme court has stated that the judge must also make a determination that the hearsay statement in question does not qualify under any of the other enumerated exceptions before resorting to the catch-all exception found in Rule 803(24). Mitchell v. State, 539 So.2d 1366, 1371 (Miss.1989). The trial judge stated on the record that the hearsay statements to which Hopkins and Riley testified were admissible only under 803(24).

¶ 19. Our supreme court has also stated that the catch-all exception should be rarely used “so as not to devour the hearsay rule.” In Interest of C.B., 574 So.2d 1369, 1373 (Miss.1990) (citing Mitchell v. State, 539 So.2d at 1370 (Miss.1989)). In Leatherwood v. State, the supreme court stated:

Rule 803(24) as promulgated by the Supreme Court represented a compromise. It recognized that not every contingency can be treated by detailed rules, that the hearsay rule has never been a closed system and should not be (for it would be pre-sumptuous to assume that all possibilities and new developments have been foreseen), and that, in a particular case, hearsay evidence which does not fall within one of the exceptions may have greater probative value than evidence which does.

548 So.2d 389, 401 (Miss.1989) (citing J. Weinstein & M. Berger, Weinstein’s Evidence, ¶ 803(24X01), at 803-369-383 (1984)).

¶ 20. We find that the case at hand is such a rare instance in which Rule 803(24) was properly invoked. In making his ruling on the admissibility of Hopkins’ and Riley’s proposed testimony, the judge quoted Rule 102 of the Mississippi Rules of Evidence. Rule 102 states, “These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.” M.R.E. 102. After making a finding concerning the requirements of 803(24), the judge went on to note that the testimony of Dr. Dixon, Hopkins, and Riley showed the consistency of Sam’s account. We find the trial judge properly admitted Dr. Dixon’s testimony under Rule 803(4) and Hopkins’ testimony under Rule 803(24).

III.

¶ 21. Osborne’s next assignment of error is that Dr. Dixon improperly commented on Sam’s veracity during her testimony. Osborne claims that the entirety of Dr. Dixon’s testimony was her opinion that Sam was telling the truth and his eyewitness account should be believed.

¶ 22. Dr. Dixon testified that the purpose of her interview with Sam was to collect information about any crime of which he may have been a victim or witness and to assess him for trauma to determine what his treatment needs might be if symptoms of trauma were present. Dr. Dixon then testified about the taped interview she conducted with Sam. Additionally, the interview tape was admitted into evidence and played for the jury. The remainder of Dr. Dixon’s testimony mostly pertained to “markers” she uses in forensic interviews to determine whether a child’s account is credible, and how Sam’s behavior compared.

¶ 23. In Griffith v. State the Mississippi Supreme Court recognized that a majority of courts have held that direct witness testimony that a child victim has told the truth is inadmissible. 584 So.2d 383, 386-87 (Miss.1991). The Griffith court went on to state, “We have indicated that such testimony is, at best, ‘of dubious competency.’ ” Id. (quoting Williams v. State, 539 So.2d 1049, 1051 (Miss.1989)).

¶ 24. This Court recently decided the case of Elkins v. State, in which an expert in the area of forensic interviewing testified that a child sex abuse victim’s “behavior and demeanor were consistent with those of children who had been sexually abused, that children who have been coached to lie generally are unable to keep their stories straight, and that [the child victim] related the same facts consistently throughout the interview.” Elkins v. State, 918 So.2d 828 (¶ 9) (Miss.Ct.App.2005). On appeal Elkins argued that the forensic interviewer’s testimony was improperly admitted into evidence because it amounted to “an expert opinion that [the child victim] was telling the truth about the abuse.” Id. at (¶ 7). This Court held, “While an expert may not opine that an alleged child sex abuse victim has been truthful, the scope of permissible expert testimony under Rule 702 includes an expert’s opinion that the alleged victim’s characteristics are consistent with those of children who have been sexually abused.” Id. at (¶ 9) (citing U.S. v. Whitted, 11 F.3d 782, 785-86 (8th Cir.1993)).

¶ 25. A large portion of Dr. Dixon’s testimony concerned the indicators she looks for in assessing credibility during a forensic interview with a child who has witnessed and/or been the victim of a crime. Dr. Dixon’s testimony also included her observation of Sam’s mannerisms during their interview. However, Dr. Dixon never directly testified as to whether she believed Sam told the truth during the interview. Two excerpts from Dr. Dixon’s testimony that most closely approach commenting on Sam’s veracity follow.

Q. You mentioned being demonstrative, that [Sam] was showing you things [during the interview]. Is that important to a psychologist?
A. One of the things we look for in a child’s account in assessing its credibility is whether or not the child had an emotional or affective component to the telling of the story.... And so I was watching Sam to determine whether he had sort of an emotional component to this. He had what I see in children a lot of times, which I call it ‘the movie behind the eye.’ It is like the child sort of looks out and you can see them reliving the event, and as they are talking about it their body gets involved in the retelling. And that is how Sam was. He was almost in the moment as he was telling me about this and he was trying to convey this information and he was using his body and making gestures like this (indicating) that you just don’t see in a child who has been coached to tell a story. It was a real interesting and I think important element to his credibility.
Q. And how does Sam do in answering questions that fit what you had already been told about what happened?
A. Well, his account was consistent, you know, with what was corroborated by his mother, both about where he was, who was there, you know, that there was even a tree outside the door that the boys typically played on. So, you know, his account was entirely within the realm of reason and consistent with what I already knew about things that his mother had told me.

¶ 26. We find that Dr. Dixon did not impermissibly testify that Sam was telling the truth during their interview in which he described his brother’s death at the hands of Osborne. Rather, Dr. Dixon testified about the indicators that she looks for during a forensic interview with a child victim/witness and then described Sam’s demeanor and mannerisms during their interview. Accordingly, this assignment of error is without merit.

IV.

¶ 27. Osborne also argues that the trial court erred in admitting into evidence life scene photographs of Charlie. Osborne contends that these photographs were irrelevant and used only as a tool to inflame the jury. However, trial counsel only objected to the relevancy of the photographs, not to their potential prejudicial effect. One may not raise an issue on appeal which was not raised in the trial court. Lewis v. State, 905 So.2d 729, 734 (¶ 14) (Miss.Ct.App.2004) (citing Haggerty v. Foster, 838 So.2d 948, 954 (¶8) (Miss.2002)). We therefore limit our review of this issue to the relevancy of the photographs.

¶ 28. This Court employs the abuse of discretion standard of review regarding the admission or exclusion of evidence. Lewis, 905 So.2d at 732 (¶ 7) (diing Whitten v. Cox, 799 So.2d 1, 13 (¶ 27) (Miss.2000)). Reversal based on an error involving the admission or exclusion of evidence is proper only when the error “adversely affects a substantial right of a party.” Id.

¶ 29. “The fact that a photograph of the deceased in a homicide case might arouse the emotions of jurors does not by itself render it inadmissible so long as introduction of the photograph serves some legitimate, evidentiary purpose. It is within the sound discretion of the trial judge to determine whether or not the photograph has a legitimate, evidentiary purpose.” Davis v. State, 904 So.2d 1212, 1216 (¶ 14) (Miss.Ct.App.2004) (citing Walker v. State, 671 So.2d 581, 601 (Miss.1995)).

¶ 30. The judge overruled defense counsel’s objection to admitting the photographs of Charlie into evidence, finding that the photos had “some probative value showing size, weight, age, physical characteristics.” We find that the judge was well within his discretion to admit the photographs. This issue is without merit.

V.

¶ 31. Osborne’s next assignment of error is that he was rendered ineffective assistance of counsel due to his counsel’s failure to (1) object to numerous leading questions, (2) contradict witnesses at the pre-trial hearing and trial, (3) examine the “death mask” and question witnesses about the size of their hands, (4) request explanatory instruction on expert testimony, and (5) object to vouching by the prosecutor.

¶ 32. To succeed on an ineffective assistance of counsel claim, the appellant must prove that trial counsel’s performance was so deficient that the appellant was denied his Sixth Amendment right to counsel and that the deficient performance in fact prejudiced the outcome of the case. Willcutt v. State, 910 So.2d 1189, 1193 (¶ 10) (Miss.Ct.App.2005) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The second prong requires a showing that the deficiencies were so egregious as to deny the appellant a fair, reliable trial. Id. The Strickland test is extremely difficult to meet since judicial review of trial counsel’s performance is highly deferential. Our supreme court has stated,

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’

Knox v. State, 901 So.2d 1257, 1261-62 (¶ 11) (Miss.2005) (citing Stringer v. State, 454 So.2d 468, 477 (Miss.1984)).

¶ 33. Osborne lists approximately forty instances of leading questions asked by the State of Hopkins which amounts to ten pages of the Appellant’s brief. However, Osborne fails to state how these leading questions in any way prejudiced him. “Leading questions ... will rarely create so distorted an evidentia-ry presentation as to deny the defendant a fair trial.” Walker v. State, 880 So.2d 1074, 1077 (¶ 8) (Miss.Ct.App.2004). After reviewing each instance of leading questions asked of Hopkins, we find that the elicited answers could have in no way prejudiced Osborne. As for the leading questions asked of Sana, it is well established that “[cjhildren are a classic example of the kinds of witnesses for whom leading questions may be necessary.” Barrett v. State, 886 So.2d 22, 25 (¶ 16) (Miss.Ct.App.2004) (citing Ivy v. State, 522 So.2d 740, 742 (Miss.1988)).

¶ 34. As for trial counsel’s failure to contradict witnesses, we find that this was trial strategy. As for trial counsel’s failure to examine the “death mask,” even were we to find this was deficient performance, there was no resulting prejudice. Although defense counsel did not examine the mask, he did have access to photographs which depicted the bruises on Charlie’s face. Similarly, we cannot say that Osborne was prejudiced by counsel’s failure to question witnesses about the size of their hands; although the pathologist testified on direct that the large hand mark on Charlie’s face appeared to be that of a male hand, on cross he opined that it could possibly be a female handprint. Osborne also argues that trial counsel was deficient in not obtaining a jury instruction that expert witness’ opinions are merely advisory and not to be blindly followed. The jury was instructed that they were to determine the weight and credibility to be given to each witness’s testimony, and thus we find this issue is without merit.

¶ 35. We find that Osborne’s trial counsel did not render ineffective assistance.

VI.

¶ 36. In his final assignment of error, Osborne states that the evidence was legally insufficient. Oddly, Osborne makes this bare assertion, cites to one case concerning legal sufficiency, and then ends his brief without discussing the evidence or illustrating how the evidence was insufficient.

¶ 37. “The appellant has a duty to show by plausible argument with supporting authorities how the lower court erred.” Riley v. State, 855 So.2d 1004, 1007 (¶ 5) (Miss.Ct.App.2003) (citing Stidham v. State, 750 So.2d 1238, 1243 (¶22) (Miss.1999)). Assignments of error unaddressed in the briefs are deemed abandoned and waived. Id. (citing Magee v. State, 542 So.2d 228, 234 (Miss.1989)). However, we briefly note that the State presented an eyewitness to the murder, along with two witnesses whose testimony revealed the consistency of the child witness’s account, and the arguably incriminating testimony of Osborne’s cellmate. We find that the evidence was legally sufficient for a reasonable jury to find Osborne guilty of murder. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005).

¶ 38. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE TO A LIFE TERM IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Exhibit seven was a picture frame which contained four photographs. Two photographs were of Charlie and the other two photographs were of Charlie and Sam.

      . Osborne cites only to cases dealing with gruesome crime scene photographs and urges this Court to analyze this issue as such. Osborne’s reliance on these cases is misplaced.

      . A death mask is created by placing a plaster-like substance over the deceased's face. The death mask was created so that the pathologist could replicate the bruises on Charlie’s face.

      . Osborne's cell mate testified that Osborne seemed nervous when he first discovered that Charlie’s body was to be exhumed. He also testified that Osborne asked him if he thought the authorities would be able to determine that Osborne had placed his hand over Charlie's mouth a couple of nights before the murder.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Albert EDMOND, Appellant v. Patricia MILLER and Mississippi Parole Board, Appellee.
    No. 2005-CP-00549-COA.
    Court of Appeals of Mississippi.
    March 21, 2006.
    Rehearing Denied Aug. 1, 2006.
    Abert Edmond, Appellant, pro se.

      Office of the Attorney General by James M. Norris, Jane L. Mapp, attorneys for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Albert Edmond was found guilty of rape in 1974 and sentenced to life in the custody of the Mississippi Department of Corrections. Edmond was paroled in July 1982; however, in August 1982, Edmond’s parole was revoked, and Edmond was returned to the custody of the MDOC to serve the remainder of his life sentence. Since his return, Edmond has sought parole numerous times, and the parole board has denied his requests.

¶ 2. In 2004, Edmond filed a complaint seeking a writ of mandamus from the Circuit Court of Sunflower County, naming the Mississippi Parole Board and Patricia Miller, the board’s chair, as defendants. Edmond alleged that the parole board has repeatedly denied his rights to due process and equal protection in failing to order a psychiatric evaluation prior to each of Edmond’s parole consideration hearings. The trial court denied the motion and dismissed the petition for failure to state a claim on which relief may be granted.

¶ 3. It is from this ruling that Edmond appeals, arguing the following assignments of error: (1) Mississippi law requires such a psychiatric evaluation be given to sex offenders prior to their parole consideration hearing; (2) as he has been denied such an evaluation, he has also been denied due process; and (3) that Mississippi Code Annotated Section 47-7-27 (Rev. 2004) is unconstitutionally vague and ambiguous and that it discriminates against him as an inmate sentenced to life in prison.

¶ 4. Finding no merit to these issues, we affirm.

I. DID THE TRIAL COURT ERR IN DISMISSING EDMOND’S PETITION FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED?

II. WAS EDMOND DENIED DUE PROCESS AS A RESULT OF THE PAROLE BOARD’S FAILURE TO ORDER A PSYCHIATRIC EVALUATION?

¶ 5. For the sake of judicial economy, issues I and II will be addressed together.

¶ 6. At the time Edmond was convicted of rape, Mississippi Code Annotated Section 47-7-3 (1972) provided in pertinent part as follows:

Parole of Prisoners — conditions.
Every prisoner who has been, or may hereafter be convicted of any offense against the State of Mississippi, and is confined in the execution of a judgment of such conviction in the Mississippi State Penitentiary, for a definite term, or terms, of one year or over, or for the term of his natural life ... may be released on parole as hereinafter provided, except that:
(b) Any person who shall have been convicted of a sex crime, and is otherwise eligible for parole, shall not be released on parole until after he has been examined by a competent psychiatrist selected by the state probation and parole board and found to be of normal and sound mind.

¶ 7. Although this section was later repealed, it was effective at the time Edmond was convicted, and, therefore, it applies.

¶ 8. Mississippi Code Annotated Section 47-7-3 (Supp.2005), in conjunction with Section 47-7-17 (Rev.2004), places matters of parole within the discretion of the Parole Board. Vice v. State, 679 So.2d 205, 208 (Miss.1996). In Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the Supreme Court held that the mere maintenance of a state parole system does not confer a protected liberty interest in parole; however, a protected liberty interest exists where state law provides that upon the meeting of one or more objective conditions a prisoner becomes entitled to parole. Harden v. State, 547 So.2d 1150, 1150 (Miss.1989). Because Section 47-7-3 and Section 47-7-17 use the permissive “may” and not the mandatory “shall,” our supreme court has held that the statutes do not confer a “constitutionally recognized liberty interest” in parole. Id. at 1152.

¶ 9. In denying Edmond parole in 1999, the Parole Board cited Edmond’s psychological and/or psychiatric history; this factor was indicated along with nine other factors, including the serious nature of Edmond’s offense, his prior parole violation, community opposition, and his history of drug and/or alcohol abuse. From this, Edmond gleans that he is entitled to a psychiatric examination, and such a denial denies him due process of law.

¶ 10. “Whether any procedural protections are due depends on the extent to which an individual will be ‘condemned to suffer grievous loss.’ ” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)) (quoted in Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)). “The question is not merely the ‘weight’ of the individual’s interest, but whether the nature of the interest is one within the contemplation of the ‘liberty or property’ language of the Fourteenth Amendment.” Id. (quoting Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972)). If due process applies, we must next determine what process is actually due Edmond, keeping in mind that “due process is flexible and calls for such procedural protections as the particular situation demands.” Id.

¶ 11. We do not agree that Edmond has a liberty interest in a psychiatric examination prior to the Parole Board’s finding that he is otherwise eligible for parole. Contrary to Edmond’s assertion, Section 47-7-3(b) does not grant Edmond the right to a psychiatric evaluation prior to his parole consideration hearings. The language of the statute is clear: an inmate must otherwise be eligible for parole before he is entitled to a psychiatric evaluation to determine if he is of sound mind.

¶ 12. As an offender who previously had his parole revoked, Edmond falls under the dictates of Mississippi Code Annotated .Section 47-7-27 (Rev.2004), which provides, in pertinent part, as follows:

In the event that the board shall revoke parole, the offender shall serve the remainder of the sentence originally imposed unless at a later date the board shall think it expedient to grant the offender a second parole. In case a second parole shall not be granted, then the offender shall serve the remainder of the sentence originally imposed, and the time the offender was out on parole shall not be taken into account to diminish the time for which he was sentenced.

¶ 13. As an offender who previously had his parole revoked, Edmond’s eligibility for a second parole was subject to the Parole Board’s discretion. Thus, Edmond is only entitled to a psychological evaluation if the Parole Board exercised its discretion to grant him a second parole. Only then does the Parole Board’s decision to release him become contingent on a psychiatric evaluation establishing that he is of sound mind. Edmond’s argument is without merit.

III. IS MISSISSIPPI CODE ANNOTATED SECTION 47-7-27 UNCONSTITUTIONALLY VAGUE AND AMBIGUOUS AND DOES SAID SECTION DISCRIMINATE AGAINST EDMOND?

¶ 14. “A statute is not unconstitutionally void for vagueness when an ordinary person of common intelligence upon reading it could understand what was allowed and what was not.” Secretary of State v. Wiesenberg, 633 So.2d 983, 996 (Miss.1994). We disagree with Edmond’s contention that Section 47-7-27 is vague. To the contrary, the language of the statute is quite clear and leaves nothing to the imagination. • This argument is without merit.

¶ 15. Edmond does not argue that he is a member of a suspect class or that a fundamental right has been violated; therefore, we apply the rational basis standard of review to Edmond’s claim that he has been denied equal protection under the law. Justus v. State, 750 So.2d 1277, 1279(¶ 5) (Miss.Ct.App.1999). Under this standard of review, the government entity’s acts or policies are required to follow a rational means of achieving a legitimate government interest. Id. Such a relationship between the government’s acts and policies and the fact that they serve a legitimate governmental interest is “not difficult to establish” since the rational relationship need only be “at least debatable.” Id. (quoting Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 881, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985)).

¶ 16. The Parole Board denied Edmond parole a number of times, and the record contains three documents delineating reasons for the denial. These reasons include the severity of Edmond’s crime, his prior misdemeanor convictions, his history of drug and alcohol abuse, community opposition to his release, an insufficiency of time served, institutional/disciplinary reports, recent/pending disciplinary actions, his prior parole revocation, and that the Board believed that Edmond lacked the willingness to fulfill the obligations of a law-abiding citizen pursuant to Section 47-7-17. Each of these factors may be considered by the Parole Board pursuant to Section 47-7-17; therefore, these considerations cannot be considered arbitrary or capricious. Justus, 750 So.2d at 1279(¶ 6). The State naturally has an interest in protecting members of society from dangerous criminals and in punishing criminals for failing to abide by the law. Clearly, a rational relationship exists between the Parole Board’s discretion and the State’s interests.

¶ 17. We find no merit to Edmond’s argument that the Parole Board’s discretion to deny him parole denies him equal protection. This argument is without merit.

¶ 18. Edmond also argues that he is entitled to review his Parole Board file, but we disagree. “Before ruling on the application for parole of any offender, the board may have the offender appear before it and interview him.” Miss.Code Ann. § 47-7-17 (Rev.2004) (emphasis added); see also Justus, 750 So.2d at 1280(¶ 9). If the Parole Board is under no obligation to have the offender present at his parole hearing, it logically follows that the Board is under no obligation to disclose its file to the offender. This argument is without merit.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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


text:
    Mary Pearson HILL (One and the Same as Mary Hill Jackson), Appellant v. Cary L. HILL, Jr., Appellee.
    No. 2004-CA-00312-COA.
    Court of Appeals of Mississippi.
    April 4, 2006.
    Rehearing Denied Aug. 1, 2006.

      James H. Herring, Canton, attorney for appellant.

      Sharon Patterson Thibodeaux, Brandon, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Mary Hill Jackson and Cary Hill Jr. were married on January 21, 1996, and divorced on May 4, 1999. During their marriage Mary and Cary had one son, Chase. The parties agreed to a child custody and property settlement agreement which was approved by the chancellor and incorporated into the judgment of divorce. The parties agreed that they would have joint legal custody, and Mary would have primary physical custody of Chase. Mary and Cary also agreed that Cary would finance all of Chase’s “daycare/preschool/kindergarten” expenses, and Cary would select the facility that Chase would attend.

¶ 2. In February 2002, Mary filed a petition to modify the judgment of divorce, seeking an increase in child support, an adjustment of the visitation schedule, and an order allowing Chase to attend kindergarten in Madison County. Cary answered, seeking sole physical custody, child support and attorney’s fees. After a trial on the merits, the trial court granted primary physical custody to Cary and ordered Mary to pay child support.

¶ 3. It is from this ruling that Mary appeals, arguing six issues which we have framed as follows: (1) whether the trial court erred in modifying Chase’s custody and granting Cary sole legal and physical custody and (2) whether the trial court erred in denying Mary’s motion for relief from judgment. Finding no error, we affirm.

¶ 4. As a preliminary matter we address concerns raised by the parties regarding a conflict between the chancellor’s amended opinion and amended final judgment, both of which were filed on March 12, 2004. Although the amended opinion awards Cary “sole legal and physical custody” of Chase, the amended final judgment orders that “Cary Hill shall have primary physical custody of Chase Hill subject to Mary’s right to visitation with Chase.” The final judgment further provides that the child custody and property settlement agreement entered into by Mary and Cary in 1999 “shall remain in full force and effect unless otherwise modified by this [o]rder.”

¶ 5. Our supreme court has previously held that a chancellor’s decision is not synonymous with the court’s final judgment. Grey v. Grey, 638 So.2d 488, 492 (Miss.1994) (citing Banks v. Banks, 511 So.2d 933, 935 (Miss.1987)). Only a final judgment is subject to appeal. Id. Additionally, an opinion of the court does not necessarily form part of the judgment, but ordinarily represents the rationale for the judgment. See 46 Am.Jur.2d Judgments § 7 (1994). Although Grey and Banks address a conflict between a bench opinion and a judgment, and the case sub judice addresses a written opinion and a judgment, we agree that the chancellor’s opinion is not the same as the final judgment. Accordingly, we review the chancellor’s decision to modify Chase’s physical, and not legal custody, as legal custody was not addressed in the amended final judgment of the court.

STANDARD OF REVIEW

¶ 6. Our standard of review for child custody cases is limited. The chancellor must be manifestly wrong, clearly erroneous, or have applied the wrong legal standard for this Court to reverse. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995). The denial of a motion for relief under Rule 60(b) of the Mississippi Rules of Civil Procedure is reviewed for an abuse of discretion. Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984).

I. DID THE TRIAL COURT ERR IN MODIFYING CUSTODY?

¶ 7. Mary argues that the chancellor should be reversed because he applied an erroneous legal standard in finding a material change in circumstance that had adversely affected Chase’s welfare. Mary also argues that the chancellor erred in finding that Chase’s best interests required a change in custody and that the chancellor erred in applying Riley v. Doerner, 677 So.2d 740, 743 (Miss.1996).

¶ 8. In a proceeding to modify custody, the party seeking a modification must prove (1) a material change in circumstances which adversely affects the welfare of the child and (2) the child’s best interests requires a change in custody. Robison v. Lanford, 841 So.2d 1119, 1124(¶ 16) (Miss.2003) (citing Brocato v. Broeato, 731 So.2d 1138, 1141(¶9) (Miss.1999)). As discussed by this Court in Parker v. South, 913 So.2d 339, 344(¶ 10) (Miss.Ct.App.2005), certain cases in Mississippi jurisprudence have divided these issues into a three-step analysis: “(1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.” Id. (quoting Mabus v. Mabus, 847 So.2d 815, 818(¶ 15) (Miss.2003)). The change in circumstances “is one in the overall living conditions in which the child is found. The ‘totality of the circumstances’ must be considered.” Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984) (citing Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss.1983)). For purposes of clarity, we will proceed with the three-step analysis.

(1) Was There a Material Change in Circumstances?

¶ 9. The trial court found that Mary afforded Chase little stability at home, including her involvement with a number of men since her divorce from Cary. The evidence presented at trial supports this conclusion.

¶ 10. While Mary and Cary’s divorce was pending, Mary and Chase lived with a female co-worker, and Mary dated a man named Brad. Mary introduced Chase to Brad, taking Chase with her to Brad’s apartment; however, Mary testified that Brad did not spend the night while Chase was present. Mary’s relationship with Brad ended prior to her divorce from Cary, and Mary began dating a man named Steve. In October 1999, Mary and Steve purchased a house in which the couple lived with Chase and Steve’s daughter. Mary testified that she and Steve did not share a bedroom until after she and Steve married.

¶ 11. Mary wed Steve on November 17, 1999, but they divorced in January 2001. During the divorce Mary and Chase moved into an apartment, and Mary began dating Darren, who Mary met through Wendy, a friend of Mary’s. Mary testified that Chase was introduced to Darren as well. Mary also dated a neighbor, with whom she occasionally left Chase when she had to work late.

¶ 12. Mary developed a relationship with a doctor named Chris, and soon Mary and Chris became engaged. Mary testified that Chase’s contact with Chris was limited, but that Chase was happy that Mary and Chris were planning to get married.

¶ 13. Chris was married to Lisa at the time he and Mary began their relationship, and, at the time of the modification hearing, Mary and Lisa were involved in litigation regarding the demise of Chris? and Lisa’s marriage. The tensions between Lisa and Mary resulted in an accusation that Mary attempted to run Lisa off the road. Mary was subsequently arrested due to allegations that she was stalking Lisa, and, in turn, Mary sued Lisa for false arrest. The criminal charges were dismissed, but at the time of the hearing the civil actions were pending. Chase was not present in the vehicle during the alleged near accident.

¶ 14. All told, Mary had moved four times since the divorce, and Mary testified that she was planning to move again upon her marriage to Chris. The trial court found that Chase will have attended three different schools during his first three years of formal education: kindergarten in Madison, first grade in Flowood, and second grade in Clinton.

¶ 15. The trial court found that Mary could not provide Chase with a stable living environment, as evidenced by the fact that she moved four times, dated several men during the last three years, and had already been married, divorced and planned to remarry yet again since her divorce from Cary. The chancellor also found that Mary took unnecessary risks and “continued to exhibit reckless behavior,” including dating a married man whose wife Mary characterized as a “psycho.” The chancellor also found that Mary took unnecessary risks in printing and keeping e-mails from Chris which the chancellor characterized as pornographic.

¶ 16. Cohabitation between an unmarried man and woman “whether in adultery or fornication” is a crime in Mississippi. Miss.Code Ann. Sec. 97-29-1 (Rev. 2000). Notwithstanding such illegality, maintaining a sexual relationship outside the confines of marriage cannot be the sole ground for modifying custody. See Phillips v. Phillips, 555 So.2d 698, 701 (Miss. 1989); Cheek v. Ricker, 431 So.2d 1139, 1144 (Miss.1983); Sullivan v. Stringer, 736 So.2d 514, 518(¶ 19) (Miss.Ct.App.1999). Likewise, the custodial parent’s relocation cannot be the sole ground for modifying custody. See Lambert v. Lambert, 872 So.2d 679, 685(¶ 24) (Miss.Ct.App.2003). However, considering the totality of the circumstances, including Mary’s capricious relationships, Mary and Chase’s inconsistent living situations, and Mary’s “risk-taking,” the chancellor found that a material change in circumstances had occurred. Giving due deference to the factual findings of the chancellor, we agree.

(2) Did the Change Adversely Affect the Child’s Welfare?

¶ 17. Mary asserts that the chancellor erred in changing custody despite his finding that “[a]s of yet there has not been a demonstrated material adverse affect to Chase.” (emphasis in original). Mary also argues that the chancellor improperly relied upon Riley v. Doemer, 677 So.2d 740, 743 (Miss.1996). The chancellor cited the following excerpt from Riley:

[t]hat where a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment.... A child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.

Id. at 744. Mary argues that the chancellor erred in changing Chase’s custody, for Chase had yet to suffer actual detriment. We disagree, and refer to the relevant portion of the chancellor’s findings:

Mary has had luck on her side. Chase was not in the car when the incident between her and [Chris’] wife took place. Chase was not present when his mother was arrested. Chase’s peers are too young to make remarks about his mother’s numerous boyfriends. Chase hasn’t been hurt or harmed by one of the numerous men his mother brings into their home and lives. Chase isn’t old enough to understand what an alienation of affection lawsuit is. Chase didn’t find the pornographic letters that Dr. Jackson wrote to his mother. Chase is a resilient child who has not yet demonstrated ill affects of Mary’s numerous moves and his numerous school changes. But Chase is growing up; Chase needs a home in which high morals, normal relationships and stability are part of his life. The [c]ourt is convinced, after considering all of the evidence presented, that Mary’s actions are having an adverse affect on Chase. Chase should not have to bear this burden; he should not have to demonstrate resilience. He should be a little boy in a stable, secure, loving environment.

¶ 18. In Jernigan v. Jernigan, 830 So.2d 651, 653-54 (¶¶ 5-6) (Miss.Ct.App.2002), the chancellor modified custody in favor of the father. The mother appealed, arguing that no detrimental affect on the child had occurred. Indeed, counselors who interviewed the child found that while the child was not manifesting problems at the time, the child would suffer adverse impacts from the mother’s behavior in the future. Finding no abuse of discretion, this Court affirmed. Id. Similarly, we find no abuse of discretion in the chancellor’s finding that Chase was suffering, and would suffer, harmful affects in the foreseeable future.

¶ 19. We note that after the parties submitted briefs in this case, this Court issued McSwain v. McSwain, No.2004CA-00088-COA, 944 So.2d 47, 2005 WL 2979678 (Miss.Ct.App. Nov. 8, 2005), which we find is distinguishable from the instant case. In McSwain, the chancellor modified custody of the parties’ child, granting the father custody in spite of the mother’s recent drug rehabilitation. The chancellor found that the child’s future rested upon the wife’s ability to refrain from her past drug habits, and, accordingly, ruled that the potential for her to relapse constituted a change in circumstances warranting a modification in custody. This Court reversed, finding that the chancellor erred in considering the potential for adverse effects on the child, rather than the child’s home life at the time of the hearing. Id. at (¶ 13).

¶ 20. We find that McSwain is inapplicable, for, unlike the mother in McSwain, at the time of the custody hearing, Mary had not rectified the behavior which created an unstable environment for her child. As the supreme court in Riley opined, a chancellor “is never obliged to ignore a child’s best interest in weighing a custody change; in fact, a chancellor is bound to consider the child’s best interest above all else.” Riley, 677 So.2d at 745. Because the best interests of the child are our fundamental concern, we find no abuse of discretion in removing Chase from his current environment of instability.

(3) Do Chase’s Best Interests Mandate a Change in Custody?

¶ 21. The court considers the following factors in determining the child’s best interests: (1) age, health and sex of the child; (2) a determination of the parent who has had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of parent and child; (7) moral fitness of the parents; (8) the home, school and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

¶ 22. The chancellor conducted a thorough Albright analysis, and on appeal Mary does not directly address the trial court’s evaluation and application of those factors; however, we find no error.

¶ 23. The chancellor found that the age, health and sex of the child did not favor either parent. The chancellor found that Chase spent fifty percent of his time with each parent under the parties’ present visitation schedule; therefore, this factor did not weigh in favor of either parent. Although both Mary and Cary take Chase to church and participate in his sporting events, the chancellor found that Cary had better parenting skills because, “Cary makes his life decisions with Chase as the number one priority at all times.” The chancellor found that both parties had the willingness and ability to provide primary child care. The chancellor further found that the parties’ respective employment and employment responsibilities did not weigh in favor of either parent. Likewise, the chancellor found that the physical and mental health of the parties and the emotional ties between the parents and Chase did not favor either party.

¶ 24. The chancellor found that Cary was more morally fit, noting Mary’s conduct as previously discussed in this opinion. The chancellor also noted that Cary had matured significantly and that Mary had presented no evidence that Cary was morally unfit. The chancellor found that Chase’s home, school and community record favored Cary, as Cary has attended the same church since the 1980’s; Chase’s t-ball and slow-pitch teams are where Cary lives in southern Madison county; and Cary’s home with his new wife is close to extended family. The chancellor found that Cary could offer Chase a more stable living environment, as Cary’s life with his new wife was stable and the extended family was present and willing to assist in rearing Chase. The chancellor also considered the testimony of former counselor Paul Davey, who saw Chase and testified that a child’s moral development began at the age of six and is complete around the ages of eleven or twelve. As Chase was not old enough to express a custody preference under the law, this factor was not considered.

¶ 25. The chancellor concluded that Cary could provide a more stable environment for Chase, and that it was in Chase’s best interests to grant Cary primary physical custody. As the chancellor’s conclusions are supported by the record, we find no abuse of discretion. This issue is without merit.

II. DID THE TRIAL COURT ERR IN DENYING MARY’S MOTION FOR RELIEF FROM JUDGMENT?

¶ 26. “Motions for relief under Rule 60(b) are generally addressed to the sound discretion of the trial court and appellate review is limited to whether that discretion has been abused.” Stringfellow, 451 So.2d at 221. Additionally, the case will not be re-litigated on a Rule 60(b) motion. Id. Rule 60(b) provides in pertinent part as follows:

(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc.
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.

¶ 27. To warrant relief pursuant to Rule 60(b)(1), the movant must prove fraud, misrepresentation or other misconduct by clear and convincing evidence. Stringfellow, 451 So.2d at 221. To prevail on a claim of fraud, the movant must show the following: (1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of the statement’s falsity or ignorance of its truth, (5) the speaker’s intent that it should be acted on by the person and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury. Id.

¶ 28. In her motion, Mary argues that she should be have been permitted to call Darren to the stand as a rebuttal witness and that the chancellor erred in excluding his testimony. Mary has failed to show that she is entitled to relief under Rule 60(b)(1), as she has not shown fraud, a misrepresentation or other misconduct by clear and convincing evidence. Furthermore, Mary has not pointed to any content in Darren’s testimony which would constitute newly discovered evidence.

¶ 29. Mary also argues that certain mistakes were made at trial, including the court’s admitting the testimony of Paul Davey, who testified as a counselor at the hearing. Mary alleged that Cary’s attorney also represented Davey, and that Da-vey also provided counseling to Chris’ wife Lisa. The motion also informed the court that subsequent to the modification hearing, Davey had been stripped of his license as a professional counselor.

¶ 30. The chancellor found that, based upon a sworn statement by Cary’s attorney, she never represented Davey. Furthermore, the court noted that Davey’s ultimate recommendation was that Mary retain physical custody. In denying the motion, the court opined that he drew his own conclusions from the testimony at trial, and that his findings were not depen-dant on any one witness.

¶ 31. To prevail under Rule 60(b)(2), a party must show that she “was justified in failing to avoid mistake or inadvertence.” Id. “Rule 60(b) provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances, and that neither ignorance nor carelessness on the part of an attorney will provide grounds for relief.” Id.

¶ 32. Mary called Davey to the stand, presumably because Davey’s testimony and recommendation were favorable to her case. The chancellor disregarded Davey’s ultimate recommendation, making his own factual findings regarding Chase’s best interests. A mistake under Rule 60(b)(2) is not measured by the import a chancellor places on a witness’s testimony. In domestic relations cases, the chancellor assesses the credibility of witnesses. Glissen v. Glissen, 910 So.2d 603, 609(¶ 18) (Miss.Ct.App.2005). The chancellor was within his authority to weigh the power of Davey’s testimony as he saw appropriate.

¶ 33. Because Mary failed to show fraud or mistake, or any other reason for which relief should be granted under Rule 60(b), we find no abuse of discretion in denying the motion. This assignment of error is without merit.

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

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


author: MYERS, P.J.,

text:
    Henry SMITH, Appellant v. CANAL INSURANCE COMPANY, Appellee.
    No. 2004-CA-01988-COA.
    Court of Appeals of Mississippi.
    April 18, 2006.
    Rehearing Denied Aug. 15, 2006.
    Dana J. Swan, Clarksdale, attorney for appellant.
    Kevin Earl Gay, John B. MacNeill, Jackson, attorneys for appellee.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Henry Smith filed a complaint for declaratory judgment against Canal Insurance Company in the Circuit Court of Marshall County on September 17, 1999. Canal filed its motion for summary judgment on August 25, 2003, and on September 9, 2004, the circuit court granted its motion. Smith appeals the circuit court’s ruling.

FACTS

¶ 2. On February 14, 1999, at 8:00 p.m., a Medstar ambulance crew responded to a call in Marshall County. When they arrived, they observed deputy sheriffs and firemen already on the scene and Henry Smith lying on the ground. Smith was alert and talking. Smith informed the paramedics that he had fallen while running from a man. The paramedics conducted a complete initial exam and determined no injury or trauma. However, they advised Smith that he needed to be checked out by a doctor. This is where the facts are disputed. Smith claims that Medstar would not take him to the hospital until he paid $300 because he was uninsured. Medstar claims that he did not want to go to the hospital and signed a release after the paramedics explained the risks. Smith said he never signed the release; however, it was included in the record.

¶ 3. On February 15, 1999, Medstar responded to another call in Marshall County, and upon arrival, found Smith seated in a vehicle with a skull injury. Medstar stabilized Smith and transported him to Regional Medical Center in Memphis, Tennessee. Smith was diagnosed with closed right partial depressed skull fracture with underlying intercerebral hematoma and left partial epidural hematoma. Smith also tested positive for both crack cocaine and majuriana. During his deposition, Smith admitted that no injury arose from the care of Medstar. Smith went further to state that his injury resulted from a blow to the head from a third party around 10:00 p.m. on February 14, 1999. Therefore, it is unclear when the actual skull fracture occurred, before or after Meds-tar’s first response.

¶ 4. Canal Insurance Company provides Medstar with liability automobile coverage. Smith filed a complaint against Medstar and a complaint for declaratory judgment against Canal on September 17, 1999, asserting that Canal was obligated as the provider of Medstar’s automobile coverage. Canal answered this complaint for declaratory judgment on October 14, 1999, and filed a counter-claim and cross-claim seeking declaratory judgment regarding its insurance provided to Medstar. Canal filed its motion for summary judgment on August 25, 2003, asserting no coverage for Smith’s claims. The Circuit Court of Marshall County granted this motion on September 9, 2004. Aggrieved by the ruling of the circuit court. Smith appeals raising the following issue:

I. WHETHER OR NOT THE TRIAL COURT ERRED IN GRANTING CANAL’S MOTION FOR SUMMARY JUDGMENT.

¶ 5. Smith argues that he was injured as a result of the use of Medstar’s ambulance; therefore, his claim should be covered by Canal. Canal asserts that its coverage applies to bodily injury or property damage caused by an occurrence and arising out of the ownership, use, or maintenance of the insured vehicle, and since there was no damage caused by such occurrence, there is no coverage.

¶ 6. This Court follows a de novo standard of review of a trial court granting summary judgment. Mozingo v. Scharf, 828 So.2d 1246, 1249(¶ 5) (Miss.2002); Owens v. Thomae, 904 So.2d 207, 208(¶ 7) (Miss.Ct.App.2005). Summary judgment is proper when there are no issues of material fact and the movant is entitled to a judgment as a matter of law. Id.

¶ 7. Medstar’s insurance policy with Canal covers claims for damages for bodily injury and property damages caused by an occurrence and arising out of the ownership, maintenance or use of the owned automobile. Canal provides coverage for several ambulances owned by Medstar. This coverage extends to accidents involving the loading or unloading of patients in and out of the ambulance. However, this policy does not cover causes of action regarding allegations of negligence by the paramedics which are unrelated to the ambulance. Smith’s injury was not a result of the ownership or maintenance of the ambulance. Smith’s injury was a result of a third party, the man who hit him on the head. Such voluntary and deliberate acts are independent and do not result from an injury arising from the use of a vehicle. Roberts v. Grisham, 487 So.2d 836, 839 (Miss.1986). Smith asserts that his injury was exacerbated as a result of the paramedics allegedly refusing to take him to the hospital on February 14, 1999. However, even if this assertion is true, the paramedic’s negligence is not connected to the use of the ambulance. There must be a causal connection present arising from the use of the automobile before coverage can be involved. Id. There is no evidence that suggests this injury was caused by the use of the ambulance. Therefore, Smith’s issue is without merit.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY 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: GRIFFIS, J.,

text:
    Peggy Hudson FISHER, Appellant v. William DEER, Gannett MS Corp. and Gannett River States Publishing Corp. d/b/a The Hattiesburg American, Appellees.
    No. 2004-CA-01391-COA.
    Court of Appeals of Mississippi.
    May 2, 2006.
    Rehearing Denied Aug. 15, 2006.

      Tadd Parsons, Wiggins, Jack Parsons, attorneys for appellant.
    V.K. Smith, III, W. Bienville Skipper, Jackson, attorneys for appellees.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Peggy Fisher and William Deer were involved in an automobile accident. Fisher filed a claim for personal injuries against Deer and his employer, Gannett MS Corporation and Gannett River States Publishing Corporation, d/b/a The Hatties-burg American (hereinafter collectively referred to as “Gannett”). A Perry County Circuit Court jury found for the defendants, Deer and Gannett. On appeal, Fisher argues that: (1) the judge erroneously instructed the jury on liability even though defendants admitted they were liable, and (2) the verdict was not supported by the evidence. We find the jury was not properly instructed. Therefore, we reverse and remand for a new trial.

FACTS

¶ 2. This case involves a vehicular collision which occurred at the intersection of Highways 29 and 98 in New Augusta, Perry County. Fisher was traveling south on Highway 29 and attempted to merge west onto Highway 98. She brought her vehicle to a stop, waiting for oncoming traffic. Deer was also attempting to merge onto Highway 98. Deer pulled in behind Fisher. Without looking in her direction, Deer collided with the back of Fisher’s car. At the time, Deer was working in the scope of his employment with Gannett.

¶ 3. Deer and Gannett signed a stipulation that admitted negligence. The case went to trial on the issue of whether or not Fisher suffered damages as a result. Over Fisher’s objection, the circuit judge instructed the jury on causation and on negligence. The jury returned a verdict that stated, “We the jury find for the Defendants.”

ANALYSIS

I. Did the trial court err in instructing the jury on negligence, ivhen negligence was stipulated?

¶ 4. Fisher argues that the circuit judge erroneously instructed the jury on causation and damages. Since Deer and Gannett admitted liability, Fisher contends the only issue for the jury was the amount of damages she suffered. Deer and Gan-nett maintain that their admission of liability did not include an admission of causation. Therefore, they argue that the jury instruction was proper.

¶ 5. In reviewing the granting of a jury instruction, we read all the jury instructions actually given as a whole. Whitten v. Cox, 799 So.2d 1, 16 (¶ 39) (Miss.2000). If they fairly announce the law and create no injustice, no reversible error will be found. Id. Where we find two or more instructions in hopeless and substantive conflict with each other, we often reverse. Hillier v. Minas, 757 So.2d 1034, 1039 (¶ 14) (Miss.Ct.App.2000).

¶ 6. Fisher’s claim is a negligence action. The four elements of negligence include (1) duty, (2) breach of duty, (3) causation, and (4) damages. Couch v. City of D’Iberville, 656 So.2d 146, 150 (Miss.1995). Duty and breach of duty establish negligence. Causation and damages establish that the plaintiff is entitled to recover on the basis of that negligence.

¶ 7. Before the trial, Deer and Gannett stipulated:

I.
That on or about June 8, 1999, Defendant William Deer negligently struck the Plaintiffs vehicle, and that as a result of his negligence he was the sole and proximate-cause of injuries' to-the Plaintiff;-Peggy Fisher, if any-,-[sic] and therefore, liability is admitted and is not an issue to be presented to the jury at trial.
II.
That the nature and extent of injuries and damages, if any, suffered by the Plaintiff is a jury issue, and is to be determined by the jury at the trial of this cause.

Deer’s attorney struck the language “and that as a result of his negligence he was the sole and proximate cause of injuries to the Plaintiff, Peggy Fisher, if any” from the stipulation. The effect is that even though Fisher asked Deer to stipulate to causation, Deer’s attorney struck this language before signing the stipulation. As a result, the stipulation simply stated that Deer was negligent and the jury would determine damages, if any. This stipulation was filed with the court over six months before trial.

¶ 8. The jury instruction at issue was submitted by Gannett. It read, “You are instructed that if you find from a preponderance of the evidence that the damages claimed by the [sic] Ms. Fisher were not proximately caused by the motor vehicle accident on June 8, 1999, then it is your sworn duty to return a verdict for the Defendants.” Reading this instruction along with the other given instructions, we cannot see that this instruction constitutes reversible error. This instruction properly instructed the jury as to causation, which was a triable fact. The record also reveals several other instructions that discussed causation. Fisher submitted one of such instructions.

¶ 9. However, we are required to read the instructions as a whole. Deer and Gannett submitted instruction D-5 which read:

The fact that an accident occurred and the Plaintiff was injured as a result thereof is not, standing alone, evidence of any negligence on the part of William Deer. The mere fact that an accident occurred, without more, is not sufficient to warrant a recovery by the Plaintiff and you should not return a verdict for the [sic] Ms. Fisher simply because she was involved in an accident. Before the Plaintiff can recover anything from the Defendants, she must prove by a preponderance of the credible evidence that at or about the time of this accident, William Deer failed to exercise that degree of care which a reasonably prudent person would have exercised under the same or similar circumstances and that such failure, if any, was a proximate cause of the injuries, if any, of the Plaintiff. If Ms. Fisher has failed to prove this by a preponderance of the credible evidence, then it is your sworn duty to return a verdict for the Defendants.

This instruction is in direct conflict with the stipulation and other instructions. In this instruction, the jury was instructed that Fisher had to prove negligence. If Fisher failed to do so, the jury was instructed to “return a verdict for the Defendants.”

¶ 10. Reading the jury instructions as a whole, we conclude that the jury was given an inaccurate description of the law as it applied to Fisher’s particular circumstances. Given Deer and Gannett’s prior stipulation, the evidence did not support a jury instruction on negligence, i.e., duty and breach of duty.

¶ 11. The fact that Fisher was also granted a peremptory instruction on negligence does not cure this error. McCary v. Caperton, 601 So.2d 866, 869 (Miss.1992). Instructing the jury as to negligence, is reversible error when there has already been a peremptory instruction on negligence. Id. The reason is that the contradiction “creates a clear potential for confusion.” Id. It is error for the court to grant instructions which are likely to mislead or confuse the jury as to the applicable law. Id. The effect of the negligence instruction in this case was to countermand the peremptory instruction and confuse the jury. Griffin v. Fletcher, 362 So.2d 594, 596 (Miss.1978).

¶ 12. Fisher objected to this instruction on the basis that liability had already been admitted; however, she objected to language that cited Deer’s negligence as only a contributing cause and not the sole cause. This language was struck pursuant to her objection. Nevertheless, the record shows the court was acutely aware that Deer and Gannett had admitted negligence, as it used this as a basis for denying them a directed verdict. When Fisher objected to this instruction on the basis of the admission, it was error for the court to allow the instruction. The instruction was not supported by the evidence, and it created a clear potential for confusing the jury. We reverse the judgment and remand the case for a new trial, consistent with this opinion.

II. Was the verdict supported by the evidence?

¶ 13. Because we reverse and remand this case for a new trial, this issue is now moot. Moreover, because of the conflicting jury instructions, we cannot tell whether the jury verdict found the appellees were not negligent or whether they simply found Fisher did not incur damages as a result. On remand, this issue may be corrected.

¶ 14. Accordingly, we reverse and remand this case for a new trial consistent with this opinion.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF PERRY COUNTY IS HEREBY REVERSED AND REMANDED FOR A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLEES.

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


text:
    Nellie TREADWELL, Appellant v. CIRCUS CIRCUS MISSISSIPPI, INC. d/b/a Gold Strike Casino Resort, Appellee.
    No. 2005-CA-00711-COA.
    Court of Appeals of Mississippi.
    May 9, 2006.
    Rehearing Denied Aug. 29, 2006.
    Dana J. Swan, Clarksdale, attorney for appellant.
    John Ramsey McCarroll, Southaven, Eugenia G. McGown, attorneys for appel-lee.

      Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. While visiting the Gold Strike Casino and Resort in Tunica, Mississippi, Nellie Treadwell fell and injured her left knee. Ms. Treadwell filed a complaint alleging that Circus Circus Mississippi, Inc., d/b/a Gold Strike Casino (“Gold Strike”), was negligent in maintaining its premises. Gold Strike filed a motion for summary judgment, which was granted. On appeal, we find no error and affirm.

FACTS

¶ 2. On June 19, 1999, Nellie Treadwell visited the Gold Strike with her husband and son. After checking into the hotel, the Treadwells went to eat in the Courtyard Buffet at the Gold Strike. After paying for her meal, Mrs. Treadwell slipped and fell. As a result of the fall, Mrs. Treadwell injured her left knee. She was taken to the emergency room, where she received stitches. The next day, Mrs. Treadwell and her family returned to their home in Georgia. Mrs. Treadwell continued to receive medical treatment for the injury to her knee.

¶ 3. On June 14, 2001, Mrs. Treadwell filed a complaint against Gold Strike. She asserted a premises liability claim and argued that her injuries were caused by a dangerous condition that was either caused by Gold Strike or that Gold Strike had actual or constructive knowledge of the dangerous condition prior to her fall.

STANDARD OF REVIEW

¶ 4. This Court employs a de novo standard of review of a lower court’s grant or denial of a summary judgment and examines all the evidentiary matters before it admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. McMillan v. Rodriguez, 823 So.2d 1173, 1176(¶ 9) (Miss.2002). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Id. Otherwise, the motion should be denied. Id. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says to the opposite. Id. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. Id. That is, the non-movant should be given the benefit of the doubt. Id.

ANALYSIS

¶ 5. Mrs. Treadwell argues that summary judgment was not proper because there was a factual question as to whether Gold Strike had notice that the dangerous condition existed prior to her injury.

¶ 6. Mrs. Treadwell was an invitee. A business owner owes a business invitee a duty of ordinary care to keep the business premises in a reasonably safe condition. Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 285 (Miss.1986). The owner of the business premises has a duty to warn invitees of dangerous conditions which are not apparent to the invitee, of which the owner or occupier knows or through the exercise of reasonable care should know. Id. However, the owner is not an insurer against all injuries which may occur on the premises. Jerry Lee’s Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988).

¶ 7. In Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992), the supreme court established the standard by which a plaintiff may recover in a slip and fall case:

[A plaintiff] must show the proprietor had actual knowledge of a dangerous condition, or the dangerous condition existed for a sufficient amount of time to establish constructive knowledge, in that the proprietor should have known of the condition, or the dangerous condition was created through a negligent act of a store’s proprietor or his employees.

¶ 8. There is no evidence in this case to create a question of fact for the jury. None of the three methods to prove negligence in a slip and fall case can be met. There is no evidence that any dangerous condition in fact existed. Ms. Treadwell merely alleges that the floor was slippery. Mrs. Treadwell testified that she did not see anything on the floor where she fell. The following is an excerpt from her deposition:

Q: And do you know what — was there something on the floor where you fell?
A: I don’t remember seeing anything on the floor. All I know, the floor was slippery. That’s all I know. Q: So you are not testifying that there was any substance on the floor that you fell on?
A: I didn’t fall on it. I really don’t know. I didn’t fall. I just slipped.

Mrs. Treadwell’s son testified that when he reached his mother after she fell there was nothing on the floor.

¶ 9. Captain Glenn A. Richards of the Rural Metro Fire Department was an eyewitness to the fall. Richards completed a “Security Voluntary Statement,” wherein he described the fall. Richards stated that, “I looked up to see an elderly lady slip and fall as she walked past the register into the restaurant. It appeared as if her left leg gave out as the left leg buckled and she landed on her knee while the right leg went straight out.” Richards also observed that the floor was dry.

¶ 10. To survive summary judgment, the plaintiff must offer some credible evidence to create a genuine issue of material fact in dispute about the defendant business owner’s liability. Since there was no evidence that a dangerous condition existed, the question of whether or not Gold Strike had actual or constructive knowledge of the condition is moot.

¶ 11. The cases cited by Mrs. Treadwell indicate that there was a substance found on the floor where the fall occurred. Here, there was no evidence offered that a substance was found that could have created a question as to whether Gold Strike should have know of its existence.

¶ 12. In Waller, the supreme court determined that the evidence was insufficient to support a jury verdict. Waller, 492 So.2d at 286-87. Mr. Waller slipped and fell at the Piggly Wiggly Supermarket of Taylorsville. Id. at 284. He testified that “he slipped in a puddle of pink liquid he estimated to be eight to ten inches in diameter.” Id. The store manager testified that he waxed the floors early that morning but did not use a pink liquid. Id. at 285. He also testified that he and his assistants regularly walked the aisles and he last walked the aisles at 10:00 a.m. Id. The accident happened at 12:30 p.m. Id. The jury awarded Mr. Waller $44,100, and the trial judge granted a judgment notwithstanding the verdict. Id. The trial judge found:

In this case there is no evidence as to what the object or substance was or how it got there. There is also no evidence as to how long the object or substance had been on the floor. The only evidence as to whether or not the defendant knew that the object or substance was on the floor was testimony offered by the defendant that he did not know that the object or substance was on the floor.

Id. The supreme court agreed and held:

Did the manager have actual notice of the spill or did the spill exist for such a length of time that the manager should have known of it through the exercise of reasonable care?
There was no evidence at trial that Phillip Skinner or any of his employees knew of the spilled liquid. To the contrary, Phillip Skinner testified that nothing regarding the spilled liquid had been brought to the store’s attention before the allegations made by Mr. Waller. Additionally, there was no evidence tending to prove how long the pink liquid had been on the floor when Mr. Waller slipped in it. To establish a negligence claim in a slip and fall case, proof that the liquid’s presence on the floor for a sufficient amount of time to give reasonable notice to the proprietor is required. Douglas v. Great Atlantic & Pacific Tea Co., 405 So.2d at 111.
The only time frame established during the trial was that Phillip Skinner personally inspected the aisles at 10:00 a.m. and that Mr. Waller slipped in aisle three at 12:30 p.m. If the evidence is taken in the light most favorable to the appellant, there was a two and one-half hour lapse between the last documented inspection by Mr. Skinner and the fall of Mr. Waller. Is proof of a two and one-half hour time lapse sufficient to prove how long the liquid had been in the aisle? This Court holds that it is not.

Waller, 492 So.2d at 286.

¶ 13. The evidence presented here indicates that there are no genuine issues of a material fact in dispute and that Gold Strike is entitled to a judgment as a matter of law as it did not have actual or constructive knowledge of a dangerous condition which caused Mrs. Treadwell to slip and fall. For these reasons, we affirm.

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

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