author: LEE, P.J.,

text:
    Nancy BYRD and Wendy Gayle (Gail) Byrd Miller, Appellants v. STATE of Mississippi, Appellee.
    No. 2006-KA-02044-COA.
    Court of Appeals of Mississippi.
    March 18, 2008.

      Leslie S. Lee, Jackson, attorney for appellants.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., CHANDLER and BARNES, JJ.
   LEE, P.J.,

for the Court.

FACTS

¶ 1. On the morning of May 12, 2005, Ernest Byrd was working in his yard in Bailey, Mississippi. Sometime around noon, Samantha Booth and her two-year-old stepson arrived at Ernest’s home to discuss the purchase of land and a trailer from Ernest. While sitting in the living room discussing the transaction, Ernest saw his estranged wife, Nancy, and his daughter, Wendy Gayle Byrd Miller, driving toward his residence. Ernest met Nancy at the front door. She told him she was there to get some of her clothes. He allowed her to enter but told her if she caused any problems he would call the sheriffs department.

¶ 2. According to Ernest, Nancy entered the house and started yelling and cursing at Samantha. Wendy remained in the vehicle parked out front. Ernest called the sheriffs department. At this point, Nancy exited the house and drove away. Ernest called the sheriffs department back to tell them not to hurry because Nancy had left, but he asked that they send a deputy to escort Samantha out. Before the sheriffs department made it to the house, Nancy had returned. Samantha testified that she called the sheriffs department when she saw Nancy and Wendy arrive. Ernest testified that he was outside putting trash in his truck when he heard a horn blowing and saw Nancy and Wendy coming back down the road toward his house. According to Ernest, Nancy and Wendy exited their vehicle, walked toward the porch, and yelled curse words at Samantha. Ernest' also walked back onto the porch. Ernest claimed that at this point, Wendy pulled out a pocket knife and attempted to stab him. Ernest picked up a framing hammer to defend himself. Nancy picked up an axe handle, broke the glass on the storm door, and hit Ernest in the head with the axe handle. Samantha claimed that when Nancy broke the storm door Ernest told her to run and hide. She hid in the back bathroom. Ernest subdued Nancy, and Wendy broke through the locked front door and ran inside the house. According to Ernest, Wendy grabbed a gun that he kept by his chair and ran back onto the porch with the gun. Samantha testified that she heard Nancy tell Wendy to get the gun by-the chair. Samantha testified that she heard Wendy telling her mother to get out of the way and then heard a gun fire. Samantha testified that when she heard the gun fire, she ran out the back door and called 911 on her cell phone. She hid under a piece of tin in the woods and stayed there until the deputies arrived.

¶ 3. Ernest testified that Nancy told Wendy to shoot him, but he held Nancy in front of him to shield himself. Wendy fired a shot but missed. Ernest testified that he ran off the porch toward the backyard. Wendy fired two more shots but missed. Ernest hid behind, a tree. He claimed that Wendy gave the gun to Nancy. He was still holding the axe handle he had taken from Nancy and threw it at her. He testified that when he did this, Nancy shot him in the arm. Ernest claimed that he tried to run but fell. He testified that Nancy tried to shoot him again, but the gun failed to fire. He played dead until the women were out of sight. He crawled into the woods and hid there until law enforcement arrived.

¶4. When deputies arrived, Samantha emerged from the woods and told Deputy David Taylor that Nancy and Wendy had shot Ernest and that he was hiding in the woods. Deputy Taylor called for Ernest, and he came out of the woods. Deputy Taylor found the gun in the house with four spent rounds. Deputy Taylor also found the axe handle, but he did not find the knife allegedly used by Wendy. Deputy Taylor did not check the gun for fingerprints or conduct a gunpowder residue test.

¶ 5. Wendy told a different story of the events that transpired on May 12. Wendy testified that she went with her mother to Ernest’s house to collect some of her mother’s belongings. Ernest met them on the porch and asked them to return after Samantha left, which would be in about twenty minutes. When they returned, Ernest became upset because they did not wait long enough for Samantha to leave. According to Wendy, Ernest grabbed an axe handle and a hammer and began swinging at them. Wendy became upset when Ernest hit Nancy in the leg with the axe handle. Wendy testified that Ernest broke her thumb and injured her arm with the hammer. Wendy lunged at Ernest, and they both fell down the steps. At some point, Ernest dropped the hammer. According to Wendy, she and Ernest were in the front yard, and Nancy was on the porch when Samantha came from around the house and began firing a gun. Wendy testified that Ernest was telling Samantha to shoot Wendy, but Samantha shot Ernest instead. Samantha, however, testified that she never touched the gun. Wendy also denied ever using a gun or any other weapons. Wendy stated that Samantha then ran behind the house, and Wendy broke down the front door to get inside to call 911. She testified that she then went out back to check on her mother and father, but she could not find her father. Wendy testified that she was helping her mother to the truck when deputies arrived. She testified that she was in fear of Samantha. Samantha testified in rebuttal that on May 11, the day before Ernest was shot, Wendy allegedly forced Samantha off the highway and then cursed at her and threatened her. Wendy was treated on the afternoon of the shooting for bruises and a broken thumb.

PROCEDURAL HISTORY

¶ 6. Wendy and Nancy were charged with aggravated assault. Wendy was also charged with being a felon in possession of a firearm. Nancy and Wendy were tried jointly in the Circuit Court of Kemper County. The jury found Nancy and Wendy guilty on all counts. Nancy was ordered to serve a term of fifteen years in the custody of the Mississippi Department of Corrections with twelve years suspended and five years to serve on post-release supervision. On Count I, aggravated assault, Wendy was ordered to serve a term of fifteen years with twelve years suspended and five years post-release supervision. On Count II, felon in possession of a firearm, Wendy was ordered to serve three years with two years suspended and five years post-release supervision. The sentence in Count II was ordered to run consecutively to the sentence in Count I, with the post-release supervision for both counts ordered to run concurrently.

¶ 7. Nancy and Wendy filed motions for judgment notwithstanding the verdict and a new trial. Their motions were denied by the trial court.

¶ 8. Nancy and Wendy now appeal citing the following issues: (1) the trial court erred in allowing Wendy to be cross-examined on comments made by her attorney during opening argument; ' (2) the trial court erred in allowing the State to comment on the defendants’ rights to remain silent; and (3) the verdict was against the overwhelming weight of the evidence.

¶ 9. Finding no error, we affirm.

DISCUSSION

I. DID THE TRIAL COURT ERR IN ALLOWING WENDY TO BE CROSS-EXAMINED ON COMMENTS MADE BY HER ATTORNEY DURING OPENING ARGUMENT?

¶ 10. Nancy and Wendy argue on appeal that they- were denied a fundamentally fair trial because of statements made by counsel during opening and closing arguments and on cross-examination.

¶ 11. During opening arguments, Nancy and Wendy’s counsel made the following statement:

[T]he argument, the fight continued out in the yard; that Samantha Booth is inside the house. She is locked in. She is in the back of the house. And there is a gun in the house. That Wendy — neither Wendy nor Nancy Byrd went in the house. But at some point that gun comes from wherever it was in the house and it is discharged; that Ernest Byrd is struck with one of the bullets that was fired from that gun. But at no time during the events of that day of May 12, 2005, was Nancy — excuse me — was Wendy Byrd in possession of a firearm nor did she shoot her father.

On cross-examination, Wendy was asked about her counsel’s statement made in opening arguments. Counsel for the State questioned Wendy as follows:

Q: Now, I try to be careful when attorneys are making comments. The way I understood the opening statement from [your attorney] was that — of course, he didn’t mention anything about you and your dad basically wrestling in the yard. But he did say that shots were fired basically from an unknown person from an unknown direction. Do you remember that? Shots came from inside the house; do you remember him saying that?
A: No — I mean, yes, I remember him saying that. But that’s not how it happened.
Q: Well, my question is: Did you tell [your attorney] this version of the story before today?
A: Yes.
Q: Why would he tell the jury that shots were fired from inside the house if your version of it is that the shots were from outside the house?
A: I don’t know.
Q: Well, he’s your lawyer, right?
A: Yes.
Q: You have no explanation as to why the opening statement version of this is that shots were fired from inside the house and yet your version of it is that shots were fired from the yard, right?
A: I believe what he said is that the gun was discharged.
Q: From inside the house, shots came from inside the house, right?
A: Maybe he was mistaken.
Q: Well, was he mistaken?
A: He was very mistaken.
Q: How can he be mistaken, ma’am? How is that possible.
DEFENSE COUNSEL: Objection. What I say is not evidence. She’s offering testimony and counsel is arguing with her about decisions that I made in presenting this case.
THE COURT: Well, it is cross-examination and statements that were made by counsel that was not present, he is entitled to cross-examine this witness about where you might have obtained that information.

¶ 12. Finally, in closing argument, counsel for the State made the following comments:

What is significant about [Wendy’s] attorney, in my mind, is that apparently it was unknown when we started this trial what [Wendy] was going to say. If you want my opinion, she didn’t know what she was going to say until she was on the witness stand....
I’m not saying it is [her attorney’s] fault. I’m sure he is doing the very best he can with what he’s got. But you don’t say a shot came from out of the house and hit Mr. Byrd when you are about to prove or attempt to prove that Ms. Booth came around the house and shot somebody. You don’t do that. The problem is that nobody knew, including Ms. Miller, until she took the witness stand, what she was going to say on the witness stand....

¶ 13. Nancy and Wendy argue that Wendy’s testimony did not conflict with her counsel’s statement in opening argument; thus, the cross-examination only served to confuse the jury and prejudice Nancy and Wendy. Wendy’s testimony was that Samantha came from around the house shooting a gun. Her counsel stated that “neither Wendy nor Nancy Byrd went in the house. But at some point that gun comes from wherever it was in the house and it is discharged.... ”

¶ 14. “[T]he standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Sheppard v. State, 777 So.2d 659, 661(¶ 7) (Miss.2000). Attorneys have wide latitude in closing arguments. Holly v. State, 716 So.2d 979, 988(¶ 33) (Miss.1998). Also, “any alleged improper comment must be viewed in context, taking the circumstances of the case into consideration.” Haggerty v. Foster, 838 So.2d 948, 962(¶ 41) (Miss.2002). The trial judge is in the best position to determine if an alleged objectionable remark has a prejudicial effect. Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 727(¶ 59) (Miss.2001) (citing Roundtree v. State, 568 So.2d 1173, 1177 (Miss.1990)).

¶ 15. While the prosecution made incorrect statements about the defense’s opening statement, we cannot find that the natural and probable effect of the prosecution’s statements created an unjust prejudice against Nancy or Wendy. The trial judge, who is in the best position to make such decisions, overruled the defense counsel’s objections to the prosecutor’s statements, and we cannot find that the trial judge erred in doing so. We find this issue to be without merit.

II. DID THE STATE INAPPROPRIATELY COMMENT ON THE DEFENDANTS’ RIGHTS TO REMAIN SILENT?

¶ 16. During trial, counsel for Nancy and Wendy asked Deputy Taylor if he attempted on the day that Ernest was shot to get an account of the events that led up to the shooting from everyone at the scene. Deputy Taylor responded, “I believe I did ask what had happened, but no stories were given at the scene.” On redirect, the prosecutor asked if Deputy Taylor attempted “at anytime” to get a statement from Nancy and Wendy. Deputy Taylor responded, “[y]es ... [a]t our office, I believe it was the next day.... I Mirandized them and they declined to give statements at that time.” This testimony was given over the objection of defense counsel. The trial court allowed questioning about whether they were asked to give a statement but not the details of the statement.

¶ 17. An accused has the right to remain silent, guaranteed by the Fifth Amendment to the United States Constitution. Evidence of post-arrest silence is improper because it violates the accused’s right against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Nancy and Wendy argue that Deputy Taylor’s testimony that they declined to give statements penalized them for exercising their Fifth Amendment right to remain silent. They assert that this testimony constitutes reversible error.

¶ 18. In Austin v. State, 384 So.2d 600 (Miss.1980), the prosecutor commented in closing argument that the defendant had refused to give law enforcement officers a statement following his arrest. Id. at 601. The court held that evidence of post-arrest silence was improper but found the error in that case to be harmless in light of the overwhelming evidence of appellant’s guilt beyond reasonable doubt and upheld the conviction. Id. Similarly, in Gray v. State, 472 So.2d 409 (Miss.1985) (overruled in part on other grounds), a witness testified in response to questioning that he knew his rights and refused to talk. Id. at 415-16. The appellant moved for a mistrial arguing that the testimony constituted a comment upon his exercise of his Fifth Amendment right to remain silent. Id. However, he did not request, nor was he given a curative instruction at that time. Id. The court determined the remark to be harmless error since there was only a single reference made of Gray’s intent to remain silent, and the judge charged the jury at the conclusion of the trial that no adverse inference could be drawn from the defendant’s silence. Id. Finally, in Higgins v. State, 502 So.2d 332 (Miss.1987), a police officer testified, in the presence of the jury, that in response to the Miranda warning given to the appellant, the appellant stated, “I want to talk to my lawyer.” Id. at 334. In holding that the error was harmless, the court noted that: (1) the trial judge admonished the jury to disregard the officer’s statement, (2) there was only a single reference by the witness to appellant’s intention to remain silent, (3) testimony was thereafter presented that the appellant subsequently made statements to the police and consented to a search of his premises, and (4) the appellant testified during the course of the trial himself. Id. at 335.

¶ 19. We find that Deputy Taylor’s statement regarding the defendants’ rights to remain silent was harmless error. Nancy and Wendy’s silence was not being used against them. Only one reference was made to appellants’ intentions to remain silent. In fight of the circumstances, we hold that there was no resulting prejudice to the appellants, and the error was harmless.

III. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 20. Nancy and Wendy argue that the verdict was against the overwhelming weight of the evidence. Our standard of review concerning the overwhelming weight of the evidence is well settled: “[W]e will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005). The appellate court sits as a hypothetical “thirteenth juror.” Id. Therefore, the Court weighs the evidence “in the fight most favorable to the verdict.” Id. If, in this position, the Court disagrees with the verdict of the jury, the proper remedy is to grant a new trial. Id.

¶21. In support of their argument, Nancy and Wendy alleged that a new trial is warranted because the knife allegedly used by Wendy was never found, telephone records were not produced to show that Samantha called 911 from her cell phone, no gunshot residue or fingerprint tests were done, and defense counsel was not given the opportunity to develop testimony regarding Samantha’s relationship with Ernest. Also, Nancy and Wendy point to inconsistencies between Ernest’s testimony and the written statement he provided to deputies several days after the incident. In this section of their brief, they also alleged that various questions and comments by the prosecution were improper. Specifically, they argued that the prosecution spent more time attacking Wendy’s credibility on extraneous matters than presenting the facts of the case.

¶ 22. Weighing the evidence in the light most favorable to the verdict, we cannot find that the verdict of the jury was against the overwhelming weight of the evidence. When presented with conflicting evidence, it is the role of the jury to weigh the witnesses’ testimony. Triplett v. State, 840 So.2d 727, 731(¶ 9) (Miss.Ct.App.2002). As for the argument that the prosecution unnecessarily attacked Wendy’s credibility, Wendy had a prior felony conviction for obtaining a controlled substance by fraud. Since Wendy’s prior felony conviction involved lying or deceit, impeachment based on Mississippi Rule of Evidence 609 was proper. We cannot find that the State “unnecessarily steered the jury away from the facts” during its questioning of Wendy about her prior felonies.

¶23. We find this issue to be without merit.

¶ 24. THE JUDGMENT OF THE KEMPER COUNTY CIRCUIT COURT OF CONVICTION OF NANCY BYRD OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TWELVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION AND PAY $750 RESTITUTION TO THE VICTIM’S COMPENSATION FUND, IS AFFIRMED.

¶ 25. THE JUDGMENT OF THE KEMPER COUNTY CIRCUIT COURT OF CONVICTION OF WENDY MILLER AS TO COUNT I, AGGRAVATED ASSAULT, AND SENTENCE OF FIFTEEN YEARS WITH TWELVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION AND PAY $750 RESTITUTION TO THE VICTIM’S COMPENSATION FUND AND COUNT II, FELON IN POSSESSION OF A FIREARM, AND SENTENCE OF THREE YEARS WITH TWO YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO COUNT I AND THE POST-RELEASE SUPERVISION FOR BOTH COUNTS TO RUN CONCURRENTLY, IS AFFIRMED.

¶ 26. ALL COSTS OF THIS APPEAL ARE ASSESSED TO KEMPER COUNTY.

KING, C.J., MYERS, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. ROBERTS, J„ NOT PARTICIPATING.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    In the Matter of the DISSOLUTION OF the MARRIAGE OF Robert D. DE ST. GERMAIN and Brenda L. De St. Germain. Brenda L. De St. Germain, Appellant v. Robert D. De St. Germain, Appellee.
    No. 2006-CA-01480-COA.
    Court of Appeals of Mississippi.
    March 18, 2008.

      Renee M. Porter, attorney for appellant.
    Robert E. Evans, Monticello, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. This is an appeal of an unsuccessful motion to set aside a divorce or, alternatively, for equitable distribution of marital property. Robert and Brenda de St. Ger-main filed a joint bill for divorce. Approximately three months later, they executed a property settlement agreement. According to that agreement, Robert was to receive all real property except for a convenience store. Additionally, Robert was to receive custody of their son, while Brenda was to pay Robert child support.

¶ 2. The Lawrence County Chancery Court later entered a final decree of divorce. Simultaneously, Robert and Brenda executed an amended property settlement agreement. According to the amended agreement, Robert received the convenience store, as well as all the other real property. All other provisions of the original property settlement agreement remained the same.

¶ 3. Despite the divorce decree, Robert and Brenda continued to live together until September 2004. When they finally separated, Brenda filed a motion to set aside the divorce or, in the alternative, for equitable distribution of the marital property. The matter was set for hearing, but on the scheduled hearing date, the chancellor dismissed Brenda’s motion without conducting a hearing. After an unsuccessful motion for reconsideration, Brenda appeals and claims the chancellor erred by: (1) failing to find the property settlement agreement adequate and sufficient, (2) failing to require Rule 8.05 declarations, (3) failing to find that Robert engaged in overreaching, and (4) failing to equitably distribute the marital property. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 4. Robert and Brenda were married on August 11, 1984. Approximately fifteen years later, they filed a “joint bill for divorce” in the Lawrence County Chancery Court. On September 8, 1999, they executed and filed a “property and separation agreement,” which was prepared by Robert’s attorney. Brenda was not represented by counsel. According to that agreement, Brenda received the convenience store, while Robert received all other real property. Robert also received custody of their son, and Brenda agreed to pay Robert child support.

¶ 5. On November 18, 1999, the chancellor entered a final decree of divorce. That same day, Robert and Brenda executed an “amended property and separation agreement.” The only difference between the original agreement and the amended agreement was that Brenda no longer received the convenience store. Instead, Robert received it.

¶ 6. According to Brenda, she and Robert continued to live together after the chancellor entered the divorce decree. Robert disputes that. According to Robert, Brenda was merely a frequent visitor. Brenda submits that, when they finally separated, Robert sought to enforce the amended property settlement agreement. In any event, on September 17, 2004, Brenda filed a motion to set aside the divorce or,' alternatively, for equitable distribution of the marital property. Robert responded with a motion to dismiss. The chancellor granted Robert’s motion to dismiss and found that Brenda’s motion was untimely. After an unsuccessful motion for reconsideration, Brenda appeals.

STANDARD OF REVIEW

¶ 7. “This Court’s scope of review in domestic relations matters is limited.” Perkins v. Perkins, 787 So.2d 1256, 1260(¶ 9) (Miss.2001) (citations omitted). We will not disturb a chancellor’s factual findings unless the chancellor was “manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. at 1260-61(¶ 9). However, Brenda specifically appeals the chancellor’s decision to overrule her motion to set aside the divorce. By filing a motion to set aside the divorce, Brenda invoked Mississippi Rule of Civil Procedure 60(b). “Our standard of review when evaluating the denial of a Miss. R. Civ. P. 60 motion -is abuse of discretion.” Id. at 1261(¶ 9). “Review of a denial of a Rule 60(b) motion considers only whether a judge abused the broad discretion granted by that rule which provides for extraordinary relief granted only upon an adequate showing of exceptional circumstances, and neither ignorance nor carelessness on the part of an attorney will provide grounds for relief.” Id. “A party is not entitled to relief merely because he is unhappy' with the judgment, but he must make some showing that he was justified in failing to avoid mistake or inadvertence; gross negligence, ignorance of the rules, or ignorance of the law is not enough.” Id. Additionally, Brenda sought alternative relief through a motion for new trial pursuant to Mississippi Rule of Civil Procedure 59. “An appeal from a denial of a Rule 59 motion may address the merits of the entire underlying proceeding, and review of a trial judge’s denial of a Rule 59 motion is limited to abuse -of discretion.” Id.

ANALYSIS

I. WHETHER BRENDA’S MOTION TO SET ASIDE THE DIVORCE WAS TIMELY.

¶ 8. Brenda does not once address the chancellor’s decision to grant Robert’s motion to dismiss. Instead, she bases her argument on the premise that the chancellor erred when he declined to grant her motion to set aside the divorce. Be that as it may, Robert submits that the chancellor correctly dismissed Brenda’s motion. We agree.

¶ 9. Within her motion to set aside the divorce, Brenda did not state the specific basis for her motion. Viewed in its context, Brenda’s motion could have been based on Mississippi Rule of Civil Procedure 60(b)(1) — “fraud, misrepresentation, or other misconduct of an adverse party.” To the extent that Brenda’s motion was based on Rule 60(b)(1), it was clearly untimely. One who proceeds under Rule 60(b)(1) must file the motion within six months after the underlying judgment was entered. M.R.C.P. 60(b).

¶ 10. Additionally, Brenda’s motion could have been based on Mississippi Rule of Civil Procedure 60(b)(5) (“it is no longer equitable that the judgment should have prospective application”) or the catch-all provision under Mississippi Rule of Civil Procedure 60(b)(6) (“any other reason justifying relief from the judgment”). One who proceeds under either Rules 60(b)(5) or 60(b)(6) must do so “within a reasonable time.” M.R.C.P. 60(b). The chancellor did not specifically state that Brenda failed to file her motion “within a reasonable time,” but his ruling implies as much. We cannot find that the chancellor abused his discretion. Brenda filed her motion approximately five years after the chancellor entered the divorce judgment. The allegations raised within Brenda’s motion could have been submitted much earlier than five years after the judgment of divorce. Accordingly, we affirm the chancellor’s decision to grant Robert’s motion to dismiss.

¶ 11. Though any remaining issues are rendered moot as a result, for the sake of discussion, we will consider Brenda’s other issues raised on appeal.

II. WHETHER THE CHANCELLOR ERRED WHEN HE OVERRULED BRENDA’S MOTION TO SET ASIDE THE DIVORCE BECAUSE THE CHANCELLOR NEVER FOUND THE PROPERTY SETTLEMENT AGREEMENT “ADEQUATE AND SUFFICIENT.”

¶ 12. The chancellor never specifically stated that either the initial or amended property settlement agreement was “adequate and sufficient.” Brenda claims that, by failing to find either agreement “adequate and sufficient,” the chancellor committed reversible error. Brenda suggests that this Court must find the property settlement agreement unenforceable, and remand the case to the chancery court for an equitable distribution of marital property. We disagree.

¶ 13. Mississippi Code Annotated section 93-5-2(2) (Rev.2005) provides as follows:

If the parties provide by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties and the court finds that such provisions are adequate and sufficient, the agreement may be incorporated in the judgment, and such judgment may be modified as other judgments for divorce.

In Perkins, 787 So.2d at 1265-66, the Mississippi Supreme Court reversed a chancellor’s decision to deny a motion to set aside a divorce and property settlement agreement because the chancellor did not find the agreement “adequate and sufficient.” To be precise, Perkins held:

Although today this Court does not direct that the chancellor in this case must make on-the-record findings of fact and conclusions of law regarding the equity of the distribution of the marital estate in irreconcilable differences divorces where the parties have presented a written property settlement agreement, we nevertheless remind all chancellors that the principles of equitable distribution apply in all divorce cases, whether based on fault grounds or irreconcilable differences. The statutory requirement of Section 93-5-2 that the “court finds such provisions adequate and sufficient” clearly anticipates more than just a mere recitation of the obligatory words of the statute. In the present case, the record before us presents a very one-sided agreement, which on its face appears inequitable.

Id. at 1265 n. 4 (internal citations omitted).

¶ 14. Applying the supreme court’s holding in Perkins, we decline to find that, for a lack of the specific words “adequate and sufficient,” the chancellor committed reversible error. The supreme court held that section 93-5-2 “anticipates more than just a mere recitation of the obligatory words of the statute.” Logic and reason dictate that a lack of “a mere recitation of the obligatory words” is not outcome determinative or fatal to the property settlement agreement at issue. As the supreme court did in Perkins, it is necessary to view the actual agreement and the provisions it contains to determine whether the agreement is adequate and sufficient in terms of equity and entirety. Brenda raises that precise question in her issue IV. Because we examine it there, we find no need to repeat it here.

III. WHETHER THE CHANCELLOR ERRED WHEN HE GRANTED THE DIVORCE WITHOUT REQUIRING 8.05 FINANCIAL DECLARATIONS.

¶ 15. Brenda claims that the chancellor erred when he failed to require the Uniform Chancery Court Rule 8.05 financial disclosures before .he granted their divorce. According to Brenda, the appropriate remedy is to reverse and remand for an equitable- distribution. Predictably, Robert disagrees.

¶ 16. Rule 8.05 provides that each party must submit a financial declaration “unless excused by order for good cause shown.” Rule 8.05 also provides that “the failure to observe this rule, without just cause, shall constitute contempt of Court for which the Court shall impose appropriate sanctions and penalties.” Failure to require Rule 8.05 declarations does not require that this Court set aside a divorce judgment for a subsequent equitable distribution. Even so, such a remedy would not be unprecedented.

¶ 17. Brenda relies on Kalman v. Kalman, 905 So.2d 760 (Miss.Ct.App.2004). In Kalman, both a husband and a wife failed to submit Rule 8.05 financial disclosures. Id. at 764(¶ 11). The husband also concealed $2.6 million in lottery winnings that were not made part of the chancellor’s equitable distribution. Id. at 761(¶ 1). The wife filed an unsuccessful motion for contempt. Id. at 762(¶ 1). On appeal, this Court reversed “the chancellor’s contempt determination and remand[ed] ... for determination in light of rule 8.05.” Id. at 764(¶ 13). Kalman does not support Brenda’s contention that we must reverse and remand for an equitable distribution. Kalman involved a review of a motion for contempt and the concealment of $2.6 million in assets. Id. at 762-64 (¶¶4-13). Brenda has not alleged any such concealment. We find this assignment of error to be without merit.

IV. WHETHER THE CHANCELLOR ERRED WHEN HE DID NOT FIND THAT ROBERT ENGAGED IN OVERREACHING.

¶ 18. According to Brenda, the chancellor should have set aside the amended property settlement agreement based on the proposition that Robert engaged in overreaching. Brenda cites Lowrey v. Lowrey, 919 So.2d 1112 (Miss.Ct.App.2005) and submits that Robert engaged in overreaching because: (a) she did not have an attorney, (b) she was not competent to consent to the agreement because she was under a doctor’s care for some unspecified and undocumented “mental problems,” and (c) Robert had her sign the agreements before or at the time of the divorce and did not enforce them until five years later. According to Brenda, the property settlement agreement is “obviously” unfair and one-sided.

¶ 19. First and foremost, Brenda never once raised these allegations before the chancellor. Fundamental to appellate review is that we will not find that a trial judge erred in failing to decide a matter that was never presented to him or her. Birrages v. Ill. Cent. R.R., 950 So.2d 188, 194(¶ 18) (Miss.Ct.App.2006). Therefore, this matter is procedurally barred. Procedural bar notwithstanding, we still find no merit to Brenda’s assertions.

¶ 20. Property settlement agreements are “no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated into a divorce decree, does not change its character.” Lowrey, 919 So.2d at 1120(¶ 31) (citation omitted). The law favors the settlement of disputes by agreement of the parties. Id. at (¶ 30). Ordinarily, we will enforce such agreements absent any fraud, mistake, or overreaching. Id. “This is as true of agreements made in the process of the termination of the marriage by divorce as of any other kind of negotiated settlement.” Id. (quoting McManus v. Howard, 569 So.2d 1213, 1215 (Miss.1990)). “With regard to the property of the parties, this is a strong and enforceable rule with few, if any, exceptions.” Id. “Mississippi law also distinguishes between provisions regarding property and financial matters and custody of minor children.” Id. at (¶ 32). Brenda only alleges deficiencies in the division of marital proper-

ty. “In property and financial matters between the divorcing spouses themselves, there is no question that, absent fraud or overreaching, the parties should be allowed broad latitude.” Id. (quoting Bell v. Bell, 572 So.2d 841, 844 (Miss.1990)).

¶21. There were multiple reasons for this Court’s decision in Lowrey. Two reasons are entirely unrelated. In Lowrey, this Court found that a chancellor was manifestly wrong when he applied an erroneous legal standard when he denied a motion for relief from judgment based on the concept that a demonstration of overreaching depended on a demonstration of fraud. Id. at 1118(¶ 21). There is no requirement that one must necessarily prove fraud to prove overreaching. Instead, an analysis of whether an agreement is the product of overreaching involves: (a) a determination that an agreement is so one-sided and unfair that it could never be considered “adequate and sufficient,” and (b) a determination that an agreement resulted from an inequality of bargaining power or other circumstances such that there was no meaningful choice on the part of the disadvantaged party. Id. at 1121(¶ 35).

¶ 22. This Court found overreaching in Lowrey. To be specific, this Court found:

There is no doubt that the agreement is one-sided and unfair. Pursuant to the settlement agreement, Cynthia surrendered legal and physical custody of her children though she had been the children’s primary caregiver up to that point. Additionally, Cynthia received little to no specified visitation rights with her children. Moreover, though she had no means of income, she agreed to purchase clothing for the girls, pay half the AT & T debt, all the credit card debt, and pay ten percent of her gross income as child support. Regarding marital property, Cynthia gave up all her marital property except personal items, while Perrin receive[d] the marital home, the equity in the marital home, full legal and physical custody of the children, his retirement funds, and nearly all of the marital property. The gross disparity in the settlement agreement indicates that the agreement is one-sided and unfair.
Still, did Cynthia demonstrate that the settlement agreement resulted from an inequality of bargaining power or other circumstances such that Cynthia had no meaningful choice whether to enter the settlement agreement? Cynthia claims that she was in a vulnerable position when she signed the agreement, so that she lacked bargaining power. Cynthia points to a lack of bargaining power because she had no attorney and no money to hire an attorney, while Perrin had an attorney. Cynthia also points out that Perrin once told her “you get you an attorney and we will see you in court. We will destroy you. You will never live in this town again and you will never ever see your children again.” Cynthia claims that she signed such an inequitable agreement because of the persuasive effect of Perrin’s threats to run her out of town and prohibit her from seeing her daughters. Also, when Cynthia signed the settlement agreement, she was at [Perrin’s brother’s] law office, though [Perrin’s brother] was not present when Cynthia signed the agreement. According to Cynthia, a “lady told her where to sign” but neither [Perrin’s brother] nor anyone in his office advised her to get a lawyer or asked her if she had seen a lawyer. Cynthia was humiliated and subjected to public shame for her gambling addiction. Cynthia claims that, without counsel, she was completely vulnerable and in a state of duress.

Id. at 1121 (¶¶ 36-37).

¶ 23. Here, Robert received practically all of the marital property, but he also assumed all of the marital debt. Robert also points out that he sold the convenience store, received $55,000 in proceeds, and gave Brenda $33,000 of those proceeds. Most importantly, Brenda failed to demonstrate an inequality of bargaining power or other circumstances that would indicate she lacked a meaningful choice when she entered the agreements. As mentioned, the law favors the settlement of disputes by agreement, and people are free to enter into property settlement agreements — -even unfavorable ones. We will not disturb such agreements simply because an agreement is not necessarily in one’s best interest. More is required, and Brenda has failed to demonstrate it.

V. WHETHER THE CHANCELLOR ERRED WHEN HE OVERRULED BRENDA’S MOTION TO SET ASIDE BECAUSE ROBERT AND BRENDA LIVED TOGETHER AFTER THE DIVORCE AND, AFTER FIFTEEN YEARS OF MARRIAGE AND FIVE YEARS OF COHABITATION, BRENDA RECEIVED NO MARITAL PROPERTY AND ROBERT RECEIVED ALL THE MARITAL PROPERTY.

¶24. In Brenda’s previous issues, we have reviewed the substance of Brenda’s argument under this issue. Suffice it to say, we find no reversible error.

¶ 25. THE JUDGMENT OP THE LAWRENCE COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.

      . Robert remarried approximately one month after Brenda filed her motion to set aside the divorce.

      . However, we encourage chancellors to make such findings, if appropriate.

      . In Lowrey, this Court found that the settlement agreement at issue was inadequate and insufficient because it was not in the best interests of the minor children in that (a) the agreement provided no specific visitation period with their mother, formerly their primary caregiver, and (b) the agreement’s child support provision was not sufficiently enforceable because it obligated the mother to purchase clothing "in the amount to which she can afford.” Id. at 1120-21 (¶¶ 32-34). Here, Robert and Brenda had one child. At the time of the divorce judgment, that child was thirteen years old. By the time Brenda filed her motion to set aside the divorce, their child was eighteen.


text:
    Calvin GORDON a/k/a Cal, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00687-COA.
    Court of Appeals of Mississippi.
    March 18, 2008.

      Calvin Gordon, appellant, pro se.
    Whitman D. Mounger, Greenwood, attorneys for appellant.
    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.

¶ 1. In November 2003, Tammy Smith asked her friend, Denise Watkins, to go and get Smith’s daughter, Trudy Wilson, from Smith’s house located next door. Watkins complied, but when she could not locate Wilson, she began looking around the house. Watkins walked into a bedroom and saw Calvin Gordon having sex with Wilson. This was subsequently reported to the authorities, and Gordon was arrested. After additional investigation, Gordon was indicted on four counts of “[Capital] Rape” in violation of Mississippi Code Annotated section 97 — 3—65(1) (b) (Rev.2000). Following his trial in the Circuit Court of Humphreys County, Gordon was found guilty of all four counts and sentenced to what amounted to a forty-year term of imprisonment. Gordon now appeals, raising the following issues:

I. WHETHER GORDON’S TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE;
II. WHETHER THE TRIAL COURT ERRED IN DENYING GORDON’S MOTIONS FOR NEW TRIAL AND DIRECTED VERDICT;
III. WHETHER THE TRIAL COURT ERRED IN DENYING GORDON’S MOTION TO DISMISS THE INDICTMENT.

¶ 2. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. On November 17, 2003, while Smith was visiting her next door neighbor, Watkins, she asked Watkins to have Wilson, Smith’s six-year-old daughter, come next door. Wilson was at Smith’s house. After unsuccessfully attempting to obtain Wilson’s attention by calling her name, Watkins went inside the house to locate her. When Watkins stepped into the back bedroom of Smith’s home, she saw Gordon on top of Wilson, with her legs in the air, having sex. Watkins proceeded next door to inform Smith of the situation. As any mother would, Smith raced next door with a belt she obtained from Watkins to cease the despicable act. Once she arrived she did, indeed, cease the rape of her child by “whupping” her daughter and asking Wilson what she was doing “F-ing with her man.” For reasons unknown to this Court, Smith did not report this to the police. Following this incident, Belinda Smith, Wilson’s grandmother, after being informed by Wilson that Gordon had molested her and that “it was burning,” took Wilson to the police station. Gordon was arrested the following month.

¶ 4. It was later discovered that Gordon allegedly had sex with Wilson on other occasions. Gordon was indicted on four counts of “[Capital] Rape,” in violation of Mississippi Code Annotated section 97-3-65(l)(b) (Rev.2000), occurring between January 2002 and November 2003. Gordon, through his attorney, filed a demurrer and motion to dismiss arguing the indictment did not contain a crime cognizable under the law of the State of Mississippi, referring to the phrase “[Capital] Rape.” After said motion was denied, a trial on the merits of the State’s case was held in the Circuit Court of Humphreys County on March 3, 2005. After hearing all testimony, and giving the evidence presented its due and proper consideration, the jury returned a verdict of guilty as to all four counts. Following the jury’s verdict, the trial court sentenced Gordon to twenty years per count, with the sentences for Counts I and II to run concurrently, and the sentences for Counts III and IV to run concurrently. The sentences in Count I and II were ordered to run consecutive to the sentence in Counts III and IV, for a total of forty years to serve. Gordon’s attorney subsequently filed a motion for a new trial or, in the alternative, judgment of acquittal notwithstanding the verdict (JNOV), which was denied. This appeal soon followed. Additional facts will be discussed as needed.

ANALYSIS

I. WHETHER GORDON’S TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE.

¶ 5. Gordon’s first argument is that his trial counsel rendered ineffective assistance of counsel in his representation during trial. Gordon cites several instances of conduct, both action and inaction, which will be listed below in which he claims his trial counsel’s efforts amounted to constitutionally ineffective assistance.

¶6. The familiar standard espoused in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and adopted by the supreme court in Stringer v. State, 454 So.2d 468, 476 (Miss.1984), cert. denied, 469 U.S. 1230,105 S.Ct. 1231, 84 L.Ed.2d 368 (1985) guides our analysis of Gordon’s claims. Specifically, the test we must employ is as follows:

The Strickland test requires a showing that counsel’s performance was sufficiently deficient to constitute prejudice to the defense. The defendant has the burden of proof on both prongs. A strong but rebuttable presumption, that counsel’s performance falls within the wide range of reasonable professional assistance, exists. The defendant must show that but for his attorney’s errors, there is a reasonable probability that he would have received a different result in the trial court.
Viewed from the totality of the circumstances, this Court must determine whether counsel’s performance was both deficient and prejudicial. Scrutiny of counsel’s performance by this Court must be deferential.... Where this Court determines defendant’s counsel was constitutionally ineffective, the appropriate remedy is to reverse and remand for a new trial.

Rankin v. State, 636 So.2d 652, 656-57 (Miss.1994) (internal citations omitted).

¶ 7. With the above standard in mind, we review Gordon’s record of alleged deficiencies, which are listed as follows: that his trial counsel was physically handicapped; that his trial counsel failed to preserve the record during voir dire; that his trial counsel failed to timely ask for a continuance; that his trial counsel failed to adequately question potential witnesses; that his trial counsel told the jury at the start of his opening statement, “I’m always reluctant to give an opening statement”; that his trial counsel failed to request the trial court voir dire Wilson to ensure she was competent to testify; that his trial counsel failed to object to leading questions asked of Wilson; that his trial counsel questioned Watkins on cross-examination concerning her unsure in-court identification of Gordon during direct examination; that his trial counsel failed to object to statements made by Watkins and Smith during trial; that his trial counsel failed to have performed an independent test on Gordon for chlamydia; that his trial counsel failed to object to the introduction of Gordon’s urinalysis; that his trial counsel failed to call two witnesses; and that his trial counsel failed to prepare Gordon for trial.

¶ 8. As is obvious from the above list, the amount of alleged deficiencies on the part of Gordon’s trial counsel is numerous. However, consideration of a claim of ineffective assistance of counsel on direct appeal is an unusual circumstance. Aguilar v. State, 847 So.2d 871, 878(¶17) (Miss.Ct.App.2002). The supreme court has dictated that when an appellate court is presented with such a claim it should abide by the following:

(1) Any defendant convicted of a crime may raise the issue of ineffective assistance of counsel on direct appeal, even though the matter has not first been presented to the trial court. The Court should review the entire record on appeal. If, for example, from a review of the record, as in Brooks v. State, 209 Miss. 150, 46 So.2d 94 (1950) or Stewart v. State, 229 So.2d 53 (Miss.1969), this Court can say that the defendant has been denied the effective assistance of counsel, the Court should also adjudge and reverse and remand for a new trial. See also State v. Douglas, 97 Idaho 878, 555 P.2d 1145, 1148 (1976).
(2) Assuming that the Court is unable to conclude from the record on appeal that defendant’s trial counsel was constitutionally ineffective, the Court should then proceed to decide the other issues in the case. Should the case be reversed on other grounds, the ineffectiveness issue, of course, would become moot. On the other hand, if the Court should otherwise affirm, it should do so without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings. If the Court otherwise affirms, it may nevertheless reach the merits of the ineffectiveness issue where (a) as in paragraph (1) above, the record affirmatively shows ineffectiveness of constitutional dimensions, or (b) the parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge able to consider the demean- or of witnesses, etc. are not needed.
(3) If, after affirmance as in paragraph (2) above, the defendant wishes to do so, he may then file an appropriate post-conviction proceeding raising the ineffective assistance of counsel issue. See Berry v. State, 345 So.2d 613 (Miss.1977); Callahan v. State[, 426 So.2d 801 (Miss.1983) 1 supra. ■ Assuming that his application states a claim, prima facie, he will then be entitled to an evidentiary hearing on the merits of that issue in the Circuit Court of the county wherein he was originally convicted. Once the issue has been formally adjudicated by the Circuit Court, of course, the defendant will have the right to appeal to this Court as in other cases.

Read v. State, 430 So.2d 832, 841-42 (Miss.1983).

¶ 9. While Gordon’s trial counsel could have arguably been a better advocate during portions of Gordon’s trial, “[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.” Turner v. State, 953 So.2d 1063, 1073(¶ 36) (Miss.2007) (quoting Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003)). We cannot say from a review of the record before us that Gordon’s trial counsel was deficient in a constitutional sense. Additionally, the parties have not explicitly stipulated that the record before us is adequate for a determination of such. This issue is currently without merit; however, any claim of ineffective assistance of counsel is preserved in the event Gordon wishes to raise it in a post-conviction proceeding.

II. WHETHER THE TRIAL COURT ERRED IN DENYING GORDON’S MOTIONS FOR NEW TRIAL AND DIRECTED VERDICT.

¶ 10. Gordon next argues that the weight and sufficiency of the evidence presented at trial was lacking and could not support his conviction. We begin our review of this issue by noting the familiar but different standards of review that guide our analysis of a denial of a motion for directed verdict, which challenges the sufficiency of the evidence, and a denial of a motion for new trial, which challenges the weight of the evidence.

¶ 11. As to a denial of a motion for directed verdict or a motion for JNOV, the standard of review we must employ has been stated as:

We must, with respect to each element of the offense, consider all of the evidence — not just the evidence which supports the case for the prosecution— in the light most favorable to the verdict. The credible evidence which is consistent with guilt must be accepted as true. The prosecution must be given the benefit of all-favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and.credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that .-reasonable and fair-minded jurors could only find the accused not guilty.

Le v. State, 913 So.2d 913, 956-57 (¶ 163) (Miss.2005) - (quoting Wetz v. State, 503 So.2d 803, 807 (Miss.1987)). However, when reviewing the weight of the evidence, the following standard must be utilized:

A motion for a new trial is addressed to the sound discretion of the trial judge who may grant a new trial if he deems such is required in the interest of justice or [if] the verdict is contrary to law or the weight of the evidence. The trial judge should not order a new trial unless he is convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice.
In reviewing this claim, this Court must accept as true the evidence favorable to the State. This Court will reverse only when it is convinced that the trial judge has abused his discretion. Further, where there is conflicting testimony, the jury is the judge of the credibility of the witnesses.

Le, 913 So.2d at 957 (¶ 164) (quoting Wetz, 503 So .2d at 812).

A. SUFFICIENCY OF THE EVIDENCE.

¶ 12. Gordon was indicted on . four counts of “[Capital] Rape,” in violation of Mississippi Code Annotated section 97-3-65(l)(b) (Rev.2006), which states, “[t]he crime of statutory rape is committed when: ... (b) [a] person of any age has sexual intercourse with a child who: (i) [i]s under the age of fourteen (14) years; (ii) [i]s twenty-four (24) or more months younger than the person; and (iii) ■ [i]s not the person’s spouse.” Specifically, Count I of Gordon’s indictment stated:

THE GRAND JURORS of the State of Mississippi, taken from the body of the good and lawful men' and women of Humphreys County, Mississippi, being duly selected, empaneled, sworn and charged in the Circuit Court of Hum-phreys County, Mississippi, upon their oaths, present that: CALVIN GORDON, did, on or about November 17, 2003, in Humphreys County, Mississippi, unlawfully, willfully and feloniously, have sexual intercourse with [Wilson], a female child, who is under the age of fourteen (14) years, and CALVIN GORDON, who is above the age of eighteen (18), in violation of Section 97 — 3—65(l)(b) of the Mississippi Code of 1972, as amended, against the peace and dignity of the State of Mississippi.

The remaining three counts were identical save for the date alleged. Count II alleged he committed one act between January 21, 2002, and January 20, 2003. Lastly, Counts III and IV alleged that he committed two acts between January 21, 2003, and November 16, 2003.

¶ 13. Gordon argues that the evidence presented at trial was not sufficient to prove the element of sexual intercourse. Specifically, Gordon states that the measure of evidence presented is lacking because, he claims, his conviction was based upon the testimony of an incompetent child and a contradictory witness.

¶ 14. Before delving into Wilson’s testimony, we will address the issue of her competency to testify. Within his argument that a lack of sufficient evidence was presented, Gordon cites Mohr v. State, 584 So.2d 426, 431 (Miss.1991) for the proposition that the trial court should have conducted a competency hearing to determine Wilson’s ability to testify. This amounts to a backhanded claim that the trial court erred by not conducting such a hearing; however, no such claim was ever presented to the trial court for consideration. Accordingly, Gordon waived any issue there may have been concerning the competency of Wilson in this regard. Dixon v. State, 953 So.2d 1108, 1116(¶22) (Miss.2007). Therefore, we will proceed with our review of the sufficiency of the evidence under the assumption that Wilson’s testimony was credible. See M.R.E. 601.

¶ 15. Gordon also questions the manner in which the State elicited Wilson’s testimony, claiming that the most damning portions of her testimony were in response to leading questions. Again, we note that neither was an objection voiced at the time the questions were asked nor was the issue presented to the trial court for consideration. Nonetheless, while Mississippi Rule of Evidence 611(c) disallows the use of leading questions during direct examination, it qualifies this general prohibition with the phrase “except as may be necessary to develop [the witness’s] testimony.” M.R.E. 611(c). As to this, the supreme court has identified that the “ ‘classic example’ of a situation ripe for leading questions on direct is where the witness is a child.” Keyes v. State, 733 So.2d 812, 814(¶ 8) (Miss.1999) (citation omitted). Therefore, notwithstanding the procedural bar, we cannot say the trial court erred in allowing the leading questions the State asked Wilson.

¶ 16. Moving to Wilson’s testimony, she identified Gordon at trial and stated that he had sex with her a total of four times. She explained that one time was at her mother’s house, which was the origin of the investigation, and the three previous times at his house. Specifically, the State asked:

Q. How many times did Mr. Gordon have sex with you?
A. Four.
Q. Okay. Could you tell the jury where those — where that occurred?
A. One time at my mother’s house, three more times at his.

Wilson stated that the time Gordon had sex with her at her mother’s house her mother came in and started to spank her. She initially testified nobody else was there when her mother spanked her, but she later clarified that her cousin and Watkins were present. During cross-examination, she testified that she did not say anything the first three times Gordon had sex with her because “it” was not bothering her. However, she stated that after the fourth time “it” was burning, and she told Smith.

¶ 17. Gordon testified that he never had sex with Wilson, and he argues on appeal that her testimony as to the three acts of sexual intercourse prior to November 17, 2003, is not sufficient to uphold his conviction. However, our supreme court has repeatedly stated:

Our case law clearly holds that the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized. The victim’s physical and mental condition after the incident, as well as the fact that the incident was immediately reported is recognized as corroborating evidence.

Ladnier v. State, 878 So.2d 926, 931(¶ 14) (Miss.2004) (quoting Collier v. State, 711 So.2d 458, 462(¶ 15) (Miss.1998)); Otis v. State, 418 So.2d 65, 67 (Miss.1982). In Otis, the victim, a fifteen-year-old special education student with an IQ of 77 or 78, testified that Otis, her teacher, raped her in the teachers’ bathroom; however, she did not report this until five weeks later when questioned about it by the principal. Otis, 418 So.2d at 66. While Otis testified that he did not rape the victim, the supreme court upheld his jury conviction and stated, “[a]lthough she was not corroborated as to the actual rape itself, there were other facts surrounding the incident which had corroboration. It is conceded that a person may be found guilty of rape on the uncorroborated testimony of the prosecuting witness.” Id. at 67. Similarly, although Gordon claimed he did not have sex with Wilson, other corroborating evidence, while not voluminous, supports her testimony.

¶ 18. Dr. Daisy Thomas testified that she conducted a physical examination of Wilson. She stated that based on the results of her examination, it was her opinion that Wilson had been sexually assaulted. Specifically, she testified that “[t]he hymen was not intact, and the orifice was larger than it should be for a six-year-old, and there was a white-thick white vaginal discharge.” During cross-examination, Dr. Thomas further explained as follows:

For [Wilson] to have a discharge, that means it didn’t happen right then. Sometimes if somebody’s hymen is not intact and they are assaulted or have sexual intercourse, you can tell by bleeding, but there was nothing like that at all with her. But this child has been, had — there’s been sexual intercourse, there is no doubt about that. And the size — one and a half centimeters is about — no child that age [should] have a [their] vaginal area ... that big at all. In fact, it should be really small, less than a millimeter almost. So there had been sexual intercourse with this child.

Additionally, Dr. Thomas stated that Wilson was tested for several sexually transmitted diseases, and she tested positive for chlamydia. She further testified that as a result of Wilson’s positive test, Gordon was also tested for chlamydia. The result of his test was also positive

¶ 19. Therefore, as to Counts II, III, and IV, we are of the opinion that Wilson’s testimony and the evidence stated above were legally sufficient for the jury to find him guilty of statutory rape as detailed in the abovementioned counts.

¶ 20. Regarding Count I, in addition to the evidence presented above, Watkins testified that she saw “Cal [Gordon] ... on top of [Wilson], having sex.” She further stated that “he had her legs in the air and he was on top of her having sex.” As to Count I, accepting all credible evidence consistent with guilt as true, we find there was sufficient evidence to support the jury’s verdict of guilty. This issue is without merit.

B. WEIGHT OF THE EVIDENCE.

¶21. Viewing all evidence previously discussed that is favorable to the State as true, we cannot say that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice. Therefore, the trial court did not abuse its discretion in denying Gordon’s motion for a new trial.

III. WHETHER THE TRIAL COURT ERRED IN DENYING GORDON’S MOTION TO DISMISS THE INDICTMENT.

¶ 22. Gordon next argues that the trial court erred in failing to dismiss the charges against him as a result of his indictment being defective. He claims the indictment was fatally flawed for three reasons. Gordon argues that while each reason may not warrant a reversal individually, they cause the indictment to fall short of the constitutional requirements when taken together. Specifically, Gordon claims the indictment did not charge him with a valid crime, failed to charge an essential element of statutory rape, and did not state a sufficiently narrow time period for when the rapes allegedly occurred. We will address each in turn.

A. WHETHER THE INDICTMENT STATED A VALID CRIME.

¶ 23. Gordon essentially argues that the phrase “[Capital] Rape,” as it appeared in his indictment, was a false statement, as he was not charged with “capital rape,” that “capital rape” was not an element of the charges brought against him, and inclusion of the phrase actually caused allegations in the indictment to exceed those essential elements that must be alleged.

¶ 24. The sufficiency of an indictment is a question of law that affords this Court a broad standard of review. Steen v. State, 873 So.2d 155, 161(¶ 21) (Miss.Ct.App.2004). An indictment’s primary purpose is to inform the defendant of the charges against him so as to allow him to prepare an adequate defense. Evans v. State, 916 So.2d 550, 551(¶ 5) (Miss.Ct.App.2005). In Evans, the appellant’s indictment labeled the charge against him as “statutory rape,” but he was actually charged with forcible rape. Evans, 916 So.2d at 552(¶ 6). Furthermore, the indictment listed the wrong code section. Id. This Court found that the mislabeling of the crime was mere surplusage, and it was not fatal to the indictment. Id.

¶ 25. The indictment at issue labeled each count as “[Capital] Rape,” but Gordon was actually charged with statutory rape. However, the indictment otherwise complied with all requirements of Uniform Rule of Circuit and County Court Practice 7.06 and listed the specific and appropriate statute, namely section 97-3-65(l)(b). Gordon is correct in his assertion that capital rape was not an element of the crime of which he was charged, but that fact is of no consequence, as we find that the labeling of each count as “[Capital] Rape” was mere surplusage. Additionally, it can hardly be stated that capital rape was a false statement. The term “capital” when used in any Mississippi statute is used to describe any crime or offense “punishable by death or imprisonment for life in the state penitentiary.” Miss.Code Ann. § 1-3^1 (Rev.2005). If the defendant is eighteen years of age or older, as was the case with Gordon, the maximum possible punishment for violation of section 97-3 — 65(l)(b) is imprisonment for life. Miss. Code Ann. § 97-3-65(l)(b) (Rev.2006). This issue is without merit.

B. WHETHER THE INDICTMENT FAILED TO INCLUDE ALL ESSENTIAL ELEMENTS.

¶ 26. In order to prove that the crime of statutory rape, under Mississippi Code Annotated section 97 — 3—65(l)(b), was committed it must be shown that a person of any age had sexual intercourse with a child under the age of fourteen, who was at least twenty-four months younger than the person, and was not the person’s spouse. Miss.Code Ann. § 97-3-65(l)(b) (Rev. 2006). Gordon argues, without citing any case law in support, that the indictment was deficient as it failed to include language specifying that Wilson was at least twenty-four months younger than Gordon. We disagree.

¶ 27. The supreme court recently stated that “[R]ule 7.06 of the Mississippi Uniform Rules of Circuit and County Court Practice provides what is required to be provided in an indictment.” Spears v. State, 942 So.2d 772, 774(¶ 6) (Miss.2006); see also Caston v. State, 949 So.2d 852, 858(¶ 14) (Miss.Ct.App.2007) (an indictment that complied with Rule 7.06 and gave the defendant notice of the charges against him was legally sufficient). Additionally, the inclusion of the specific subsection of the statute under which the defendant was charged has been held to provide actual notice of the crime charged. Caston, 949 So.2d at 858(¶ 13) (citing Roberson v. State, 595 So.2d 1310, 1318 (Miss.1992)).

¶ 28. Rule 7.06 states the following:

The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them. An indictment shall also include the following:
1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”
The court on motion of the defendant may strike from the indictment any sur-plusage, including unnecessary allegations or aliases.

URCCC 7.06.

¶ 29. The portion of the indictment at issue stated:

CALVIN GORDON, did, on or about November 17, 2003, in Humphreys County, Mississippi, unlawfully, willfully and feloniously, have sexual intercourse with [Wilson], a female child, who is under the age of fourteen (14) years, and CALVIN GORDON, who is above the age of eighteen (18), in violation of Section 97-3-65(l)(b) of the Mississippi Code of 1972, as amended, against the peace and dignity of the State of Mississippi.

It is clear from a plain reading of the indictment as a whole that each of the seven enumerated requirements of Rule 7.06 were satisfied. The absence of the specific language of the statute, pertaining to the victim of the rape being twenty-four or more months younger than person accused, is of no moment. In addition to the fact that the specific code section was listed in each of the four counts of Gordon’s indictment, the “plain, concise and definite written statement” within each count stated that Wilson was under the age of fourteen and Gordon was over the age of eighteen. Based upon the facts before us, we find that Gordon’s indictment was legally sufficient. This issue is without merit.

C. WHETHER THE DATES PROVIDED WERE TOO BROAD TO PROVIDE PROPER NOTICE TO GORDON.

¶ 30. Gordon next argues that the indictment was deficient as a result of the periods of time listed in the indictment being vague and uncertain as when Gordon allegedly committed the rapes. The Uniform Rules of Circuit and County Court Practice require that an “indictment ... include ... [t]he date and, if applicable, the time at which the offense was alleged to have been committed.” URCCC 7.06(5). However, in cases involving sexual abuse of a child a specific date is not required “so long as the defendant is ‘fully and fairly advised of the charge against him.’” Baker v. State, 930 So.2d 399, 405(¶ 12) (Miss.Ct.App.2005) (an indictment which alleged two counts of sexual battery during a time span of 538 days for one and 903 days for the other was not deficient) (quoting Eakes v. State, 665 So.2d 852, 860 (Miss.1995)).

¶ 31. Gordon cites Wilson v. State, 515 So.2d 1181 (Miss.1987) in support of his position that “the vague and uncertain dates produced in the indictment did not give [him] the proper notice to maintain an adequate defense.” However, Wilson does not stand for the proposition that a nonspecific time frame in an indictment equates to a deficiency. Wilson was charged with committing rape on or about May 13, 1985. Id. at 1182. Following his conviction, he claimed that he was prejudiced by the fact that the indictment did not contain a specific date, but the supreme court affirmed his conviction. Id. at 1182-1183. While the supreme court conceded that “[i]n all fairness, notice of a specific date is often essential to the preparation of a defense — especially where an alibi defense is relied on,” the court stated that Wilson “raised no credible claim of unfair surprise or prejudice.... ” Id. at 1183.

¶ 32. Similarly, Gordon does not put forth any credible claims of unfair surprise or prejudice, other than the bare assertion that the dates in the indictment did not allow him to maintain a proper defense. There is no evidence in the record that Gordon planned to put forward any alibi defense, and he does not make such a claim on appeal. Furthermore, he asserts no specific argument on how the language of the indictment prejudiced his defense in any way. “This Court’s pivotal consideration when considering the validity of an indictment on appeal, ‘is whether the defendant was prejudiced in the preparation of his defense.’ ” Caston, 949 So.2d at 858(¶ 14) (citing Wilson v. State, 815 So.2d 439, 443(¶ 11) (Miss.Ct.App.2002)). Based on the record before us, we can find no prejudice that resulted from any of Gordon’s alleged errors within his indictment. Therefore, this issue is without merit.

¶ 33. THE JUDGMENT OF THE HUMPHREYS COUNTY CIRCUIT COURT OF CONVICTION OF COUNTS I, II, III, AND IV OF CAPITAL RAPE AND SENTENCES OF TWENTY YEARS EACH, WITH SENTENCES IN COUNT I AND COUNT II TO RUN CONCURRENTLY, AND THE SENTENCES IN COUNT III AND COUNT IV TO RUN CONCURRENTLY, AND THE SENTENCES IN COUNT I AND COUNT II TO RUN CONSECUTIVELY TO THE SENTENCES IN COUNT III AND COUNT IV, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HUMPHREYS COUNTY.

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

      . In an effort to protect Trudy’s identity, pseudonyms are used in place of the victim's and witnesses' actual names.

      . In his initial appeal to this Court, Gordon’s trial attorney filed a brief in accordance with Lindsey v. State, 939 So.2d 743 (Miss.2005), stating that he could not identify any arguable issues to raise on appeal. In response, Gordon filed a supplemental brief raising several of the issues now brought on appeal. This Court requested briefing on the issues raised by Gordon, and as there were allegations of ineffective assistance of counsel, different appellate counsel was assigned to Gordon.

      . As mentioned above, each of the four counts contained separate dates and/or date ranges.


text:
    Dennis JEFFERSON a/k/a Dennis E. Jefferson, Appellant. v. STATE of Mississippi, Appellee.
    No. 2006-KP-01543-COA.
    Court of Appeals of Mississippi.
    March 18, 2008.

      Dennis Jefferson, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Dennis Jefferson was indicted along with his two co-defendants, who separately pleaded guilty to burglary, of “House Burglary,” as described in the indictment, of 4460 White’s Lane, Yazoo County, in violation of Mississippi Code Annotated section 97-17-23 (Rev.2006), which makes it a crime to break and enter the dwelling house of another with the intent to commit some crime therein. Following a trial in the Circuit Court of Yazoo County, Jefferson was found guilty by a jury of burglary of a building other than a dwelling, sentenced to a term of seven years, and ordered to pay a $10,000 fine, court costs, and attorney’s fees.

¶ 2. Subsequent to a denial of Jefferson’s motion for new trial, the instant appeal followed. On appeal, both Jefferson and his appellate counsel filed separate briefs. Between the two briefs Jefferson raises several issues on appeal, questioning the sufficiency of the evidence and alleging trial court error and ineffective assistance of counsel. Finding that the evidence presented at trial is not sufficient to uphold the jury’s verdict, we reverse and remand the case to the trial court for resentencing on the lesser-included offense of willful trespass.

FACTS AND PROCEDURAL HISTORY

¶ 3. Thomas Coleman testified that on May 28, 2005, he saw a car stopped, with its hood up, in front of his next door neighbor’s house located at 4460 White’s Lane in Yazoo County. He saw two black males coming out of the garage with something in their hands. He went over to the pair, who were in front of their car at this point, and asked if they needed any help. He testified that they stated the car had “run hot” but indicated they did not need any help. The pair then put down the hood and left. When they left, Coleman noticed a weedeater in the bushes nearby. He decided to go back to his house and wait inside his truck to see if the pair would come back. He stated that ten or fifteen minutes later the same vehicle came back, but it did not stop. Coleman pulled in behind it and a high speed chase began. However, Coleman was not able to catch the vehicle. He returned home and called the police. When asked to make an in-court identification of the two males he saw coming out of the carport, Coleman could not do so.

¶ 4. Lenoria McGee, a co-defendant, was next to testify. She stated that she and Bobby Huffman, another co-defendant, asked Jefferson for a ride that morning. She testified that Huffman asked Jefferson to take him to 4460 White’s Lane, and Jefferson complied. While she and Jefferson stayed in the car, Huffman went behind the house and came back with a fishing rod, a leaf blower, and a white bucket. According to McGee’s testimony, when she saw Coleman’s truck coming up behind them, she alerted the other two. Huffman then threw the leaf blower and the fishing pole in a ditch and told Jefferson to pop the hood to make it look like the car had overheated. Once Coleman arrived, Jefferson got out of the car and told Coleman they did not need any help. They then left and visited another individual down the road from 4460 White’s Lane, but they returned a few minutes later to, she assumed, retrieve the stolen leaf blower and fishing pole. However, they never stopped because Coleman pulled in behind them and gave chase. After losing Coleman, they discarded the bucket and the extension cord. Coleman and McGee were later found by police at a gas station and arrested.

¶ 5. Barbara Allen, the co-owner of the residence at 4460 White’s Lane, took the stand. She stated that the carport was open in the front, and a storage shed was located behind the house. She stated that the house had not been entered, but some hope chests in the nearby metal storage shed had their lids taken off. She could not be sure that the alleged burglars did it, but she was certain the chests had their lids on them the last time she saw them. She further clarified that she did not think anything was missing from the shed, but she did think the chests had been opened. There was no testimony of any forced entry into the metal shed; nor, for that matter, any testimony that the shed doors were closed or open prior to any possible entry. As to the items actually stolen, she stated all of them came from the open-area carport. All stolen items were later returned to the Allens.

¶ 6. Deputy William Gilmore was next to testify. The bulk of his time on the stand was spent relaying what Jefferson said in a statement he gave to the police. According to Gilmore, Jefferson stated that they stopped at the house because the car was overheating, and Huffman asked him to put the hood up. Huffman then went to the house and knocked on the door. He later returned with the- stolen items in his possession. Jefferson refused to allow Huffman to put the items in his car, and Huffman dropped the leaf blower and the fishing pole in a ditch. At this point, Coleman came up and asked if they needed any help. Gilmore then testified that Jefferson stated that they drove up the street, and Huffman placed the extension cord in the trunk and discarded the bucket. On the way back down the road, Coleman pulled in behind them, but they eventually evaded his pursuit. Jefferson then wrote in his statement that they threw the extension cord behind an apartment building, and they were later found at the BP gas station. Gilmore also testified that there was a closed shed at the end of the carport and a separate metal shed behind the house. He added that all items taken were from the carport.

¶ 7. The last person to testify for the State was Deputy Timothy Jones. Jones testified that he was involved in the arrest of Jefferson. Jones stated that once Jefferson was arrested, Jefferson showed him where the extension cord, bucket, and other items were located. ' The State then rested. Jefferson then made a motion for directed verdict that was denied by the trial court.

¶ 8. Jefferson was then called to the stand by the defense. He testified that the morning of May 28, 2005, he was delivering some animal feed to his wife’s cousin when he saw McGee and Huffman walking on the street. They asked him for a ride to the end of the. street, but when they arrived, Huffman offered Jefferson five to ten dollars to drive him to a “Deputy Booker’s” home so that he could ask for a loan. When they were close, his car began to overheat. Jefferson stated that Huffman told him he knew the people at 4460 White’s Lane but not to park in the driveway. While he opened the hood and took off the radiator cap, Huffman’ went to knock on the door. Jefferson thought someone answered the door, and he saw Huffman go around to the back. He heard what sounded like a screen door close, and Huffman came back a few minutes later with a leaf blower, a fishing pole, and a bucket he assumed had water in it. He told Huffman he could not put the other items in his trunk because it was full of feed, so Huffman placed the items by a bush in the yard. At this point, Coleman pulled in behind them and asked if they needed any help. Huffman closed the hood, and Jefferson assumed they were ready to go so he declined assistance. They drove further down the street, but Booker was not at home so Jefferson turned around and went back the way he came. When they passed 4460 White’s Lane, Coleman “fishtailed” out of his driveway and “rode [Jefferson’s] bumper for a few blocks.” They lost Coleman when they reached town. He told Huffman to throw the extension cord out of his car, and they went to the BP gas station so Huffman could get the five or ten dollars he owed him. While at the gas station, two police officers arrested him. Jefferson stated he never entered the yard or house, and he never picked up any items.

¶ 9. Huffman then testified for the defense. He stated that the three were driving around, and he asked Jefferson to take him to James Robinson’s house to borrow some money. On the way, Huffman saw some items under the carport at 4460 White’s Lane and asked if the others were “down for a lick.” While he was in the carport, Jefferson and McGee were acting as lookouts. Jefferson raised the hood so it would look like the car was overheating. When Huffman was on his way back, Coleman’s truck pulled up, and he dropped the leaf blower and the fishing pole in the bushes. Coleman asked Jefferson if everything was alright, and Jefferson said they were fine. They drove down the road to Booker’s house and “got the water for real at his house.” Huffman asked if they were going back to get the items, and they turned around. When they passed the house, Coleman began chasing them, but they lost him before they got back to town. They threw the extension cord out at an apartment building and went to the gas station. While there police officers pulled in behind Jefferson and arrested him and McGee, but the officers did not notice Huffman. However, he was arrested two days later.

¶ 10. Jefferson, Huffman, and McGee were indicted for “House Burglary” in violation of Mississippi Code Annotated section 97-17-23 (Rev.2006). As noted above, Huffman and McGee eventually pleaded guilty, while Jefferson proceeded to trial. After the State rested its case-in-chief, Jefferson motioned the trial court for a directed verdict based upon his assertion that there had been no breaking or entering of a dwelling house. The State explained that the case initially went forward on the theory that the stolen items were taken from a locked metal storage compartment within the carport but conceded that the evidence was somewhat lacking. The State further countered that there was ample evidence to proceed upon the “lesser-included felony of burglary of another building.”

¶ 11. Somewhat unclear in the reasoning for its holding, the trial court denied Jefferson’s motion for directed verdict, stating:

[tjhere’s been sufficient proof so far that the fishing rods, the bucket, the extension cord, and the blower were taken, either from the storage portion of the carport or — and I believe Ms. Allen said that she didn’t know anything that was actually stolen from the unconnected metal building. But there is sufficient proof of the defendant’s participation in the crime by faking car trouble....

Following the exchange detailed above, the trial court amended the State’s jury instruction six, which laid out the elements of burglary of a building other than a dwelling, to include language that Jefferson could be alternatively guilty if the jury found that he aided and abetted Huffman. After nineteen minutes of deliberation, the jury returned a verdict of guilty of burglary. Jefferson was sentenced to seven years in prison, fined, and assessed court costs and fees. This appeal followed the denial of Jefferson’s motion for a new trial.

ANALYSIS

I. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO UPHOLD A CONVICTION OF BURGLARY OF A DWELLING.

¶ 12. Within his motion for a new trial, Jefferson argued that the evidence presented at trial was legally insufficient to uphold the jury’s verdict. On appeal, his attorney calls into question the sufficiency of the evidence and claims the trial court erred in denying Jefferson’s motion.

¶ 13. The standard of review for a claim of insufficiency of the evidence is as follows:

the critical inquiry is whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” [Carr v. State, 208 So.2d 886, 889 (Miss.1968).] However, this inquiry does not require a court to [“]ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.[”] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citations omitted) (emphasis in original). Should the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)); see also Dycus v. State, 875 So.2d 140, 164 (Miss.2004). However, if a review of the evidence reveals that it is of such quality and weight that, “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Edwards, 469 So.2d at 70; see also Gibby v. State, 744 So.2d 244, 245 (Miss.1999).

Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005).

¶ 14. Mississippi Code Annotated section 97-17-23 (Rev.2006) states:

Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by imprisonment in the Penitentiary not less than three (3) years nor more than twenty-five (25) years.

“Dwelling house” is defined as “[e]very building joined to, immediately connected with, or being a part of the dwelling house.... ” Miss.Code Ann. § 97-17-31 (Rev.2006). Viewing the evidence in a light most favorable to the prosecution the following picture emerges. Jefferson was possibly involved in the attempted theft of a leaf blower, a fishing pole, a bucket, and an extension cord, either directly, as Coleman testified he saw two men coming from the carport, or indirectly, as an aider and abetter in his capacity as a lookout. From a review of the testimony and pictures in the record, it is clear that the three-car carport from which the items were taken is a freestanding structure, closed in on three sides and entirely open in the front. There was no alleged breaking that took place in the carport.

¶ 15. In addition, Allen, the owner of the home, testified that she believed the shed behind the house was entered, but nothing was missing. Based on the pictures in evidence, it is clear that the shed is not attached to the dwelling house in any way. It sits adjacent, but it is not connected to the dwelling. Also, Allen was clear that the condition of the hope chests locked within the shed had changed; however, she did not directly testify, or insinuate, that the shed’s door was manipulated in order to gain entry to the shed. In fact, there was absolutely no testimony or other evidence that the shed was broken into at all, only that the hope chests inside were disturbed.

¶ 16. Therefore, it is clear there was a theft from an open, freestanding structure, and a possible entry of a freestanding shed. Neither -of these events satisfy the elements of section 97-17-23. In addition to the lack of evidence of a breaking into the shed, it does not meet the statutory definition of “dwelling house,” but it is more akin to a non-dwelling house. “[A] non-dwelling house is a building that is not joined to, immediately connected with or forming a part of a dwelling house.” Edwards v. State, 800 So.2d 454, 462(¶ 16) (Miss.2001). Also, there was no breaking and entering involved in the open carport. Based on the evidence presented at trial, Jefferson could not be guilty of violating the statute under which he was indicted. Given the evidence above, no rational trier of fact could find Jefferson guilty of violation of section 97-17-23. Likewise, no rational trier of fact could find Jefferson guilty of violation of section 97-17-33, burglary of a building other than a dwelling. There simply was no proof of any unlawful breaking and entering of either the dwelling or metal shed.

¶ 17. Implicit in every conviction of burglary, however, is a finding that the defendant committed a trespass. Anderson v. State, 290 So.2d 628, 628-29 (Miss.1974); see also Hill v. State, 929 So.2d 338, 341(¶ 11) (Miss.Ct.App.2005) (trespass is a lesser-included offense of every burglary). Under the direct remand rule, when a verdict is reversed based upon the conclusion that the evidence presented at trial was insufficient to uphold a conviction of burglary this Court may remand solely for resentencing on the charge of trespass where the evidence establishes such an offense. Hill, 929 So.2d at 341 (¶¶ 10-11). The elements of trespass include the willful or malicious entrance upon another’s real or personal property. Miss.Code Ann. § 97-17-87 (Rev.2006).

¶ 18. Viewing the proof in a light most favorable to the prosecution, we find that the evidence presented at trial was sufficient to uphold a finding of guilty upon a charge of trespass. This conclusion stems from either Jefferson’s participation as a principle in the trespass, which could be gleaned from Coleman’s testimony, or as an aider and abetter as a result of Huffman’s testimony. Therefore, based upon the direct remand rule, Jefferson’s conviction of burglary of a dwelling is reversed and the case is remanded for resentencing for willful trespass.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING THE STATE’S JURY INSTRUCTIONS SIX AND SEVEN.

¶ 19. Jefferson next argues that allowing jury instructions six and seven was error. He correctly claims that he was indicted of burglary of a dwelling in violation of Mississippi Code Annotated section 97-17-23, and the jury instructions in question pertained to" burglary of a building other than a dwelling in violation of Mississippi Code Annotated section 97-17-33 (Rev.2006). However, Jefferson’s trial counsel failed to object to the offered instructions. Such a failure constitutes waiver of that issue on appeal. Davis v. State, 568 So.2d 277, 279 (Miss.1990). Therefore, this-issue is without merit.

III. WHETHER JEFFERSON RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 20. Jefferson next argues that his attorney was constitutionally ineffective in failing to request lesser-included offense jury instructions for aeeessory-af-ter-the-fact, attempted petit larceny, and/or trespassing. He also claims his trial counsel was ineffective in failing to object to jury instruction number six offered by the State. In order to prove ineffective assistance of counsel an appellant must show that his counsel’s performance was deficient and that this deficiency prejudiced his defense. Puckett v. State, 879 So.2d 920, 935(1143) (Miss.2004) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). However, the supreme court has stated that an appellate court should not reach the merits of an ineffective assistance of counsel claim brought on direct appeal unless we are satisfied “the record affirmatively shows ineffectiveness of constitutional dimensions, or ... the. parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge able to consider the demeanor of witnesses, etc. are not needed.” Read v. State, 430 So.2d 832, 841 (Miss.1983). In this case, neither condition is satisfied.

¶ 21. Therefore, in consideration of our resolution.of Issue I and the fact that it is not affirmatively shown from the record alone that Jefferson’s counsel was ineffective for the reasons put forth by Jefferson, we 'find this issue without merit. It is dismissed, however, without prejudice.

IV.WHETHER THE CUMULATIVE EFFECT OF JEFFERSON’S PROPOSED ERRORS WARRANT REVERSAL OF HIS CONVICTION AND REMAND FOR A NEW TRIAL.

¶ 22. In Jefferson’s final issue he argues that we should reverse and remand his case for a new trial because the cumulative effect of the errors he has raised warrants such a holding. However, for there to be reversible error to the whole, there must be error in part. Gibson v. State, 731 So.2d 1087, 1098(¶31) (Miss.1998). Notwithstanding Issue I, Jefferson’s other issues were found to be without merit. Therefore, without the finding of error, either harmless or harmful, in the remaining parts of Jefferson’s appeal, there can be no finding of error worthy of remand for a new trial in the whole. This issue is without merit.

CONCLUSION

¶ 23. For the foregoing reasons, the judgment of the trial court is reversed and this case is remanded to the trial court for resentencing on the lesser-included offense of willful trespass.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY IS REVERSED AND THIS CASE IS REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

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

      . Huffman did not explicitly explain what he meant by "down for a lick”; however, he did state that Jefferson asked what he meant, and he responded, "I see some stuff up under the carport that we could get, you know.”

        . On this point, the State was incorrect as "burglary of a building other than a dwelling is not a lesser-included offense of burglary of a dwelling.” Sheffield v. State, 881 So.2d 249, 254(¶ 22) (Miss.Ct.App.2003).

      . It is clear, however, that the trial court agreed with the State's alternate theory of the case. During the jury instruction conference, the trial court denied a defense instruction laying out the elements of burglary of a dwelling in favor of the State’s jury instruction six, which stated that Jefferson was guilty of burglary if he aided and abetted in the breaking and entering of the storage building. The trial court stated, "[t]he building essentially broke into and entered into was not joined to, because [the State is] going after burglary rather than burglary of a dwelling.”

      . In a supplemental brief authored by Jefferson he raises an issue entitled: "Whether [the] verdict was against the overwhelming weight of [the] evidence.” However, within his argument in support of the issue he only challenges the sufficiency of the evidence surrounding his conviction. Therefore, in our consideration of the issue of sufficiency brought forth by Jefferson's attorney we simultaneously address Jefferson's mistitled issue.