source: Caselaw Access Project

author: SMITH, Chief Justice,

license: Public Domain

text:
    Donald HALES, v. STATE of Mississippi.
    No. 2004-KA-02084-SCT.
    Supreme Court of Mississippi.
    May 18, 2006.
    Rehearing Denied Aug. 3, 2006.

      Daniel Kyle Robertson, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before SMITH, C.J., CARLSON and DICKINSON, JJ.
   SMITH, Chief Justice,

for the Court.

¶ 1. Donald Hales was indicted by the grand jury of the Second Judicial District of Jones County for the possession of a controlled dangerous substance, in violation of Miss.Code Ann. Section 41-29-139 (Rev.2005). Hales was tried before a jury in the Circuit Court and found guilty of the illegal possession of cocaine. The circuit court sentenced Hales to a sixteen-year sentence with four years suspended. Hales was then remanded to the custody of the Mississippi Department of Corrections to serve a total of twelve years. It is from this conviction and sentence that Hales perfected the present appeal.

¶ 2. After due consideration, we find no error by the trial court in this case. Accordingly, the judgment of the trial court is affirmed.

FACTS

¶ 3. On or about February 11, 2004, Laurel narcotics officers secured a search warrant and arrived at an apartment occupied by Donald Hales. The officers knocked on the door and announced their presence, but heard what they perceived to be running water emanating from the bathroom area of the apartment. The officers then decided to breach the entryway of the residence in order to prevent the possible destruction of evidence. The officers discovered Hales standing in the bathroom holding some sort of towel or rag in his hand. Also, officers found Hales’ female companion taking a shower. Both individuals were taken into custody, and the officers commenced a search of the apartment.

¶ 4. During the search, officers noticed a non-working stove in one of the cluttered rooms in the apartment. Officers lifted the top panel of the stove and saw a bag containing a rock like substance, which appeared to be crack cocaine. In addition, two razor blades covered in a white powdery substance were discovered on a table in the apartment. These items, which con-tallied the suspected illegal substance, were collected and submitted to the crime lab for chemical analysis. After testing, the crime lab determined the substance covering the razor blades was a cocaine residue and the bag contained 5.71 grams of cocaine.

¶ 5. On March 24, 2004, Hales was indicted for possession of 5.71 grams of cocaine, in violation of Section 41-29-139. Hales was subsequently tried by a jury before the circuit court. At trial the State presented evidence, including photographs and officer testimony, in an attempt to demonstrate that Hales was knowingly in possession of a controlled dangerous substance. Hales failed to produce evidence or testimony to contradict the State’s evidence. Instead, Hales testified on his own behalf during the hearing and admitted residing in the apartment that was searched by the narcotics officers. Hales denied having any knowledge of the cocaine that was recovered in his apartment by the officers. Alternatively, Hales suggested his girlfriend’s son and a friend stashed the cocaine in his apartment without his knowledge.

¶ 6. After closing arguments, the circuit court submitted the case to the jury for deliberations. Shortly thereafter the jury returned a guilty verdict. Hales was sentenced and subsequently filed a motion for a new trial, or in the alternative, a motion for judgment notwithstanding the verdict. The circuit court overruled Hales’ motions. Hales now appeals to this Court.

ANALYSIS

I. MOTION FOR MISTRIAL

¶ 7. Prior to commencement of the trial, Hales’ counsel motioned the trial court to exclude any items other than the cocaine that was recovered in Hales’ apartment. The following relevant communications took place pretrial:

DEFENSE COUNSEL: One brief thing, there’s — I see that there is several things that Mr. Van Syckel has in his possession that was [sic] recovered pursuant to the search warrant. My client is charged with possession of 5.71 grams of cocaine. I would move the court for an order prohibiting the State from introducing anything else that was a fruit of the search warrant other than the cocaine which he’s on charge for here today.
PROSECUTION: Well, Your Honor, there’s the cocaine.
TRIAL COURT: If it’s not pursuant to the search warrant, what was identified to be searched for, we all know that can’t be brought in. If it’s something that they went there to find, if there’s other contraband—
PROSECUTION: It will all be related to cocaine, Your Honor, but so the Court will know, they found the cocaine and then they found two razor blades, which are used to cut cocaine, that the crime lab will identify as razor blades with cocaine residue. That’s the only other thing that was found.

DEFENSE COUNSEL: There’s also marijuana that was found.

PROSECUTION: We’re not getting into that.

TRIAL COURT: Okay. Well, let’s go then.

¶ 8. This pretrial discussion left Hales, not unreasonably, with the impression the district attorney would not divulge any evidence of the presence of marijuana to the jury. However, during the direct examination one of the narcotics officers the district attorney admitted a color photograph into evidence which depicts a razor blade, a cell phone, a bottle of beer, a bag of cocaine, and what appeared to be a small plastic bag of marijuana. Hales’ attorney insists he was unaware the color photograph contained marijuana because the prosecution submitted a black and white copy of the photograph during pretrial discovery. Further, defense counsel maintains the poor quality of the black and white copy rendered an indecipherable image of the bag of marijuana at issue. Moreover, Hales’ defense counsel maintains the only time he saw the color photograph was prior to its admission into evidence. Hales’ counsel did receive a disc, which would have revealed the color photo at issue had counsel had it printed. Hales’ counsel did not print the color photo.

¶ 9. Hales contends this color photograph clearly violated the pretrial order because of the marijuana it portrays. Hales also claims the only purpose for offering the color photograph was to inflame and prejudice the jury. We note the photograph at issue is clearly suspect in that it contained the cocaine and other items, when the record clearly reflects only the cocaine was found in the stove. It appears the photo at the center of controversy here was clearly one taken of all the seized items together and did not adequately demonstrate where the seized items were physically located in Hales’ apartment when first observed by the officers. The trial court was concerned about the color photograph and made the following remarks:

TRIAL COURT: Now, on this photograph here, I know it’s in evidence and it’s been presented in evidence. The only thing that disturbs me about it is the fact that it’s obvious what it is. And to put a photograph into evidence and not be a part of the crime that’s involved here is kind of disturbing to the Court because it’s — I don’t know.
PROSECUTION: As I said, Your Hon- or—
TRIAL COURT: It’s not a matter of what you said. It’s a matter of what you did. You presented it to the jury, a picture of a substance there that anybody — I mean, I don’t know what these peoples’ common experiences are. I would suspect that there is somebody on this injury [sic] that, taking all the statistics that we deal with from time to time and peoples’ knowledge about what cocaine looks like, it’s obvious that there would be somebody on the jury that while they’re deliberating in the jury room if this picture is presented that it would be obvious that it would be— that’s what it would be. So I don’t know why y’all want to put something like that in.
PROSECUTION: Well, I’m not even looking for marijuana. All my witnesses have—
TRIAL COURT: It’s not a matter of what you’re looking for. It’s a matter of something that has been presented to the jury showing that you’ve got another substance here. You’ve got beer. You’ve got all that stuff here.
PROSECUTION: Beer is not illegal.
TRIAL COURT: And I don’t know whether it’s put in there to inflame the minds of the jury. You got a knife and all that stuff up there in this photograph. Was that all put there as a composite to present to the jury to inflame the minds of the jury? I don’t know.
TRIAL COURT: I’m just making a record on how I feel about this kind of tactic. And that’s all I can say.
TRIAL COURT: I’m not going to do anything. I’m going to let it go in just like it is because it’s already gone to the jury. And then I’m going to let you go to the Supreme — let them go to the Supreme Court, and let them do what they need to do about it. I’m just telling you that it’s my point I don’t understand why you do these things. Period.
PROSECUTION: Well, I don’t know what these things is, Your Honor.

¶ 10. When the trial court allowed the prosecution an opportunity to explain why such a photograph was admitted into evidence, the prosecution offered that it was merely an attempt to admit a razor blade into evidence. In response, Hales maintains the color photograph at issue was not necessary merely for the admission of a razor blade.

¶ 11. While we acknowledge the concerns of the trial judge regarding the photograph, this issue is barred from consideration because defense counsel failed to contemporaneously and timely object to the admission of the photograph. The prosecution presented the color photograph to defense counsel before admitting it into evidence without an objection. The photo was admitted without objection, and only after the prosecution completed his direct examination of the narcotics officer did the defense finally bring the alleged prejudicial nature of the photograph to the trial court’s attention.

¶ 12. This Court has consistently held “that the failure to make a contemporaneous objection at trial constitutes a waiver of any error subsequently assigned.” Moawad v. State, 531 So.2d 632, 634 (Miss.1988)(citing Irving v. State, 498 So.2d 305 (Miss.1986); Gates v. State, 484 So.2d 1002 (Miss.1986)). See also Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Accord Walker v. State, 473 So.2d 435 (Miss.1985); Ward v. State, 461 So.2d 724 (Miss.1984); Tubbs v. State, 402 So.2d 830 (Miss.1981). In this case, defense counsel objected to the photograph outside the timely and contemporaneous realm required by this Court. Therefore, this issue is not properly before this Court on direct appeal, and we are procedurally barred from considering it.

¶ 13. Hales submits admission of the photograph constitutes reversible error by the trial court, and thus his motion for a mistrial should have been granted. However, after a thorough review of the record, we find neither the word “mistrial” nor Hales’ alleged motion for a mistrial. This Court has stated on numerous occasions “that an appellant is responsible for bringing to our attention and presenting to this Court a record of trial proceedings sufficient to undergird his assignments of error.” Winters v. State, 473 So.2d 452, 457 (Miss.1985). See, e.g., Yates v. State, 342 So.2d 312, 316 (Miss.1977); Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973). Despite the prosecution’s actions in this case, which border on prejudicing the defendant, this Court cannot consider reversing the ruling of a trial court when the alleged ruling is not in the record. Therefore, the trial court did not erroneously overrule Hales’ motion for a mistrial, because there is no evidence in the record that Hales’ ever made such a motion. Thus, this Court is procedurally barred from considering such a claim of error.

¶ 14. However, this Court now calls attention to the trial court’s concerns regarding what the trial judge referred to as the prosecutor’s “tactics” in this case. The trial judge only allowed evidence of the cocaine, and the State agreed not to mention any marijuana. While indeed, the prosecutor did not mention marijuana, the prosecutor’s conduct certainly raises concerns. The color photograph at issue clearly shows a substance that a juror might conclude is marijuana. In the interest of justice, this Court frowns upon any conduct regarding evidence and prior court rulings which might appear suspect. To help avoid this type of conduct this Court provided a simple prosecutorial ro-admap over a century ago:

The fair way is the safe way, and the safe way is the best way in every criminal prosecution. The history of criminal jurisprudence and practice demonstrates, generally, that if everyone prosecuted for crime were fairly and fully conceded all to which he is entitled, and if all doubtful advantages to the state were declined, there would be secured as many convictions of the guilty, and such convictions would be succeeded by few or no reversals.

Flowers v. State, 842 So.2d 531, 564 (Miss.2003) (citing Johnson v. State, 476 So.2d 1195, 1215 (Miss.1985); Hill v. State, 72 Miss. 527, 534, 17 So. 375, 377 (1895)). In accordance with this guideline we pose the following question: was the color photograph the prosecutor surreptitiously slipped into evidence the lynchpin of the state’s case? After a diligent review of the record we are certain the answer is no. Moreover, the prosecutor’s actions unnecessarily jeopardized what was otherwise a solid evidentiary case. Therefore, for future reference we take this opportunity to point out that prosecutors can avoid such a quandary by taking the fair and safe route regarding inadmissible evidence during trial.

¶ 15. In this case, the prosecutor’s actions were not well received by the trial court, nor are they by this Court. However, due to defense counsel’s failure to make a contemporaneous objection, the aforementioned procedural bar prevents the Court from considering this issue on direct appeal. Thus, this issue is without merit.

II. RIGHT TO A MEANINGFUL APPEAL

¶ 16. Hales argues he has been denied the right to a meaningful appeal because of substantial omissions in the record. Hales states that the court reporter’s failure to transcribe five bench conferences as well as a number of other courtroom utterances resulted in severe prejudice in filing this appeal. Hales does not accept fault for the incomplete record, and maintains reversal is required.

¶ 17. This very issue was presented in Simmons v. State, 805 So.2d 452 (Miss.2001). In Simmons this Court stated:

Simmons did not follow the proper procedure for correcting omissions in the record as set out in the Mississippi Rules. M.R.A.P. 10(c). The Watts case indicates that the failure to do so acts as a procedural bar to raising the issue on appeal. Watts v. State, 717 So.2d 314, 317 (Miss.1998).
The argument that the absence of bench conference transcripts hurts the defense’s case on appeal is meritless. Defense counsel failed to object to the lack of transcriptions at the time; thus, he is procedurally barred from raising the issue on appeal. Burns v. State, 729 So.2d 203, 212 (Miss.1998) (“It is in poor grace for counsel to participate without objection in unrecorded bench conferences and complain for the first time on appeal.”) (quoting Thorson v. State, 653 So.2d 876, 895 (Miss.1994)).

Id. at 506.

¶ 18. In this case, Hales also did not follow the proper procedure for correcting the alleged omissions in the record as set out in the Mississippi Rules of Appellate Procedure. See M.R.A.P. 10. Moreover, there is no evidence that Hales attempted to ensure a complete record. Therefore, in accordance Simmons, Hales is procedurally barred from asserting this assignment of error. Therefore, this issue is without merit.

III. SUFFICIENCY AND WEIGHT OF THE EVIDENCE

¶ 19. The trial court denied Hales’ post trial motion for a new trial, or in the alternative, motion for JNOV. Hales now submits the trial court erred by not granting a directed verdict, peremptory instruction, JNOV, or alternatively, a new trial.

¶ 20. “A motion for new trial challenges the weight of the evidence. A reversal is warranted only if the lower court abused its discretion in denying a motion for new trial.” Dilworth v. State, 909 So.2d 731, 737 (Miss.2005)(citing Howell v. State, 860 So.2d 704, 764 (Miss.2003); Edwards v. State, 800 So.2d 454, 464 (Miss.2001); Sheffield v. State, 749 So.2d 123, 127 (Miss.1999)). “The appellate court will not order a new trial ‘unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction ‘unconscionable justice.’ ” Howell, 860 So.2d at 764(quoting McDowell v. State, 813 So.2d 694, 699-700 (Miss.2002)).

¶21. Motions for directed verdicts, JNOVs, and requests for peremptory instructions challenge the legal sufficiency of the evidence presented at trial. Jefferson v. State, 818 So.2d 1099, 1110-11 (Miss.2002). Moreover, all employ the same standard of review. Id.

Under this standard, this Court will consider the evidence in the light most favorable to the appellee, giving the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.

Id. at 1111.

¶ 22. Hales insists the jury’s verdict is against the overwhelming weight of the evidence and the State failed to prove guilt beyond a reasonable doubt. Further, Hales alleges that taking all of the credible evidence in the case at bar as true, reasonable and fair-minded jurors could only have acquitted him of the possession of cocaine. We do not agree.

¶ 23. At trial the State demonstrated Hales was the resident of the apartment searched by narcotics officers, pursuant to a valid search warrant. In addition, through copious testimony and physical evidence, the State showed that 5.71 grams of cocaine, as well as razor blades containing a cocaine residue were discovered in the Hales residence. In response to the State’s evidence, defense counsel failed to call any witnesses to the stand other than the defendant himself. Hales denied any knowledge of the cocaine recovered, and insinuated his girlfriend’s son may have actually owned the drugs. The State presented adequate evidence to support the conclusion that Hales was in possession of the cocaine recovered.

¶ 24. This Court has held that “we do not reverse criminal cases where there is a straight issue of fact, or a conflict in the facts; juries are impaneled for the very purpose of passing upon such questions of disputed fact, and we do not intend to invade the province and prerogative of the jury.” Hyde v. State, 413 So.2d 1042, 1044 (Miss.1982) (quoting Evans v. State, 159 Miss. 561, 132 So. 563, 564 (1931)). This issue presents a straight issue of fact and should not be reversed, for if this Court were to reverse the verdict in this matter the province and prerogative of the jury would certainly be invaded.

¶ 25. After diligent review of the record, it is our opinion the reasonable juror could not have arrived at a contrary verdict, as the facts are sufficient to support the jury’s verdict. Therefore, the verdict is not against the overwhelming weight of the evidence and must be allowed to stand. Thus, the trial court did not abuse its discretion. This issue is without merit.

IV. CUMULATIVE ERROR

¶ 26. Finally, Hales argues even if this Court somehow finds no single error calling for reversal, it should nonetheless grant a new trial based on the cumulative effect of the errors asserted. This Court has previously held “that individual errors, not reversible in themselves may combine with other errors to make up reversible error.” Byrom v. State, 863 So.2d 836, 847 (Miss.2003). See also Hansen v. State, 592 So.2d 114, 142 (Miss.1991); Griffin v. State, 557 So.2d 542, 553 (Miss.1990). However, “[wjhere there is ‘no reversible error in any part, ... there is no reversible error to the whole.’ ” Gibson v. State, 731 So.2d 1087, 1098 (Miss.1998)(quoting McFee v. State, 511 So.2d 130, 136 (Miss.1987)).

¶ 27. In this case, all of the previous issues have been considered and determined to be without merit. Therefore, we find the cumulative effect of the errors alleged by Hales, does not warrant reversal of the jury’s verdict. Thus, this issue is also without merit.

CONCLUSION

¶ 28. For the foregoing reasons, the trial court was not in error, nor did it abuse its discretion. Further, the evidence submitted at trial was such that no reasonable juror could have reached a contrary verdict. Therefore, the judgment of the trial court is affirmed.

¶ 29. CONVICTION OF POSSESSION OF COCAINE (5.71 GRAMS) AND SENTENCE OF SIXTEEN (16) YEARS, WITH FOUR (4) YEARS SUSPENDED, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. JONES COUNTY TAXED WITH COSTS OF APPEAL.

WALLER, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. COBB, P.J. AND DIAZ, J., NOT PARTICIPATING.


author: RANDOLPH, Justice,

text:
    Julie ROSSON v. Dr. Mark McFARLAND.
    No. 2004-CA-00078-SCT.
    Supreme Court of Mississippi.
    May 18, 2006.
    Rehearing Denied July 27, 2006.

      Joe Sam Owen, Gulfport, Sam Starnes Thomas, attorneys for appellant.
    S. Christopher Farris, attorney for ap-pellee.
    Before SMITH, C.J., CARLSON and RANDOLPH, JJ.
   RANDOLPH, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. On July 12, 1999, Dr. Mark McFarland (“McFarland”) filed a Complaint in the Circuit Court of Hancock County against Acadian Bay Development, Inc. (“Acadian Bay”) and Julie Rosson, individually (“Rosson”). McFarland pleaded Acadian Bay and Rosson breached their contractual obligations and negligently failed to construct his home in a fit and workmanlike manner. McFarland further alleged Acadian Bay and Rosson made false statements to induce McFarland to enter into the contract to build his home.

¶ 2. McFarland received the plans for building his home through Southern Living magazine. On December 8, 2000, an Amended Complaint was filed adding Time Warner, Inc., which was alleged to be the parent company of Southern Living, Inc. (“Southern Living”). On October 10, 2002, a second Amended Complaint was filed naming Southern Living and Julie Rosson Builder, Inc., in addition to defendants Acadian Bay and Rosson, individually. McFarland claimed the named defendants were guilty of negligence in the omission of material facts and matters, breach of contract and fraud.

¶ 3. A trial was conducted in the Circuit Court of Hancock County. During trial, Southern Living settled for $100,000. At the end of McFarland’s case-in-chief, the remaining three defendants moved for a directed verdict, which was denied by the trial judge. At the close of the case, the defendants’ renewed motion for directed verdict was denied.

¶ 4. On September 27, 2003, the jury returned a verdict against Rosson, individually, for $325,000. Rosson was given credit for the Southern Living settlement amount by agreement. On September 30, 2003, a judgment was entered against Ros-son, individually, for $225,000.

¶ 5. The Order styled Final Judgment, however, neither referenced the remaining defendants, Acadian Bay and Julie Rosson Builder, Inc., nor was the judgment entered by the trial court certified as final under M.R.C.P. 54(b). See M.W.F. v. D.D.F., 926 So.2d 897 (Miss.2006); (mandate issued May 11, 2006); Salts v. Gulf Nat’l Life Ins. Co., 849 So.2d 848, 850-51 (Miss.2002); Gilchrist v. Veach, 754 So.2d 1172, 1173-74 (Miss.2000); Owens v. Nasco Int'l Inc., 744 So.2d 772, 774 (Miss.1999); Williams v. Delta Reg’l Med. Ctr., 740 So.2d 284, 285 (Miss.1999). Only Ros-son appealed, and McFarland cross-appealed only as to Rosson. This anomaly was not discovered until this Court, in seeking just resolution and proper disposition of all issues appealed, realized that in the absence of all parties, it could not adjudicate all claims or the rights and liabilities of all parties to these proceedings. Accordingly this Court, sua sponte, finds it lacks jurisdiction.

¶ 6. “This Court’s jurisdiction is expressly set forth in [Miss.Code Ann.] Section 11-51-3 as proper only from a ‘final judgment.’ As noted in Bradley v. Holmes, 242 Miss. 247, 134 So.2d 494 (1961), an appeal is not a matter of right but is subject to the statutory provisions, and the basic requirement is that appeals are proper only if from a final judgment. See also Perkins v. Thompson, 127 Miss. 864, 90 So. 710 (1922).” Banks v. City Fin. Co., 825 So.2d 642, 644-45 (Miss.2002).

CONCLUSION

¶ 7. The appeal, cross-appeal and petition are dismissed for lack of jurisdiction.

¶ 8. ON BOTH DIRECT APPEAL AND CROSS-APPEAL: DISMISSED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . In his Motion to Amend Complaint, McFarland did not seek to dismiss Time Warner as a defendant. However, Time Warner was not named as a defendant on the Second Amended Complaint and does not appear further in these proceedings.

      . Subsequent to oral argument, Rosson filed a Petition to Supplement the Record, and a Response was filed by McFarland.


author: DICKINSON, Justice,

text:
    K.D.F. and J.C.F. v. J.L.H.
    No. 2004-CA-01320-SCT.
    Supreme Court of Mississippi.
    May 25, 2006.
    Rehearing Denied July 27, 2006.

      E. Foley Ranson, Ocean Springs, attorney for appellant.
    Donald P. Sigalas, Pascagoula, attorney for appellee.
    Before SMITH, C.J., CARLSON and DICKINSON, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. This is an adoption case which involves a chancellor’s refusal to terminate the parental rights of a natural father on the grounds of abandonment or moral/mental unfitness and the subsequent denial of the Appellants’ adoption petition. A second matter concerns the chancellor’s award of temporary custody of the child to the natural father. The question presented is whether the chancellor committed manifest error in finding the Appellants failed to present clear and convincing evidence of the natural father’s unfitness to maintain his parental rights.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. While working as a convenience store clerk in June 2000, John Harris, age 26, met Amy Rogers, age 18. Harris was living with his parents while attending the University of South Alabama, and Rogers was unemployed and had no permanent residence. When Harris and Rogers met, Rogers had already given birth to two illegitimate children, one given up for adoption and the other temporarily taken from her by the Jackson County Department of Human Services.

¶ 3. Within a few weeks, Rogers moved into Harris’ parents’ home, and the two began having sexual relations, part of the time without birth control. Approximately two months later, Rogers stayed out all night, and Harris forced her to leave his parents’ home.

¶ 4. Rogers quickly resumed her relationship with Robert Hicks, a man she had previously dated and who was the father of one of her children. Shortly after the breakup, Harris learned Rogers was pregnant through a phone call he received from Hicks, who requested money for Rogers to have an abortion. Harris contacted an attorney to inquire whether he could stop the abortion, but he was informed he could not. He therefore assumed he had no rights with respect to the unborn child.

¶ 5. In late October 2000, Rogers went to work for Kim and Jack Foster (“the Fosters”) in their laundry and dry cleaning business. In February 2001, Rogers advised the Fosters that she intended to put her baby up for adoption. After some discussion, Rogers agreed to allow the Fosters to adopt her baby. She repeatedly told the Fosters that Hicks was the father of her unborn child.

¶ 6. On May 21, 2001, Rogers gave birth to Elizabeth. The Fosters took Elizabeth from the hospital to their home where she has since lived. On June 5, 2001, Rogers executed a Consent to Adoption agreement with the Fosters. A Petition for Adoption, naming Rogers and Hicks as Elizabeth’s natural parents, was filed on August 9, 2002.

¶ 7. From August 2000 (according to Harris) or October 2000 (according to Rogers) until late July 2002, Harris had no contact with Rogers. After graduating from college in May 2001, Harris enrolled in the Mississippi College School of Law. He left the law school after the fall semester and returned home to Pascagoula in the summer of 2002. At some point during the semester, Harris acquired Elizabeth’s birth announcement and kept it.

¶ 8. In late July 2002, Harris ran into Rogers at a grocery store where she showed him a picture of Elizabeth. After this encounter, Harris consulted an attorney about his potential parental rights. After this meeting, Rogers informed the Fosters that Harris, not Hicks, was Elizabeth’s biological father.

¶ 9. In September 2002, Harris filed an objection to the Fosters’ Petition for Adoption. DNA testing proved Hams was Elizabeth’s biological father. The Fosters filed an Amended Petition for Adoption and for Termination of Parental Rights, naming Harris as the defendant. Harris then filed a Motion to Establish Paternity and an Answer to the Fosters’ Petition. Chancellor Pat H. Watts, Jr., joined these issues.

¶ 10. The chancellor appointed Ms. Janice Perrealt, Esquire, as guardian ad litem for Elizabeth. She prepared and filed a report recommending the Fosters be allowed to adopt Elizabeth based on Harris’ abandonment.

¶ 11. On February 6, 2004, the chancellor entered his Opinion denying the Fosters’ adoption petition and awarding temporary custody of Elizabeth to Harris. Final Judgement was entered on March 9, 2004. The Fosters then filed a Motion for New Trial, to Alter and Amend Judgment and for Reconsideration. Chancellor Watts entered an Order on June 24, 2004, denying the Fosters’ requested relief, but awarding physical custody of Elizabeth to the Fosters “until the Judgment of March 9, 2004 is enforceable, or until further order of this Court.”

¶ 12. On June 24, 2004, the Fosters appealed Chancellor Watts’ Order. The Fosters also filed an Application for Stay of Judgment Pending Appeal seeking to retain physical custody of Elizabeth during the appeals process. The chancellor entered a Judgment granting physical custody of Elizabeth to the Fosters until final decision on appeal, subject to Harris’ visitation as previously ordered.

¶ 13. The Fosters raise two issues for review by this Court: (1) whether the chancellor erred in denying their petition to adopt Elizabeth; and (2) whether the chancellor erred in awarding temporary physical custody of Elizabeth to Harris.

DISCUSSION AND ANALYSIS

I. Whether the chancellor erred in denying the Fosters’ petition to adopt Elizabeth.

¶ 14. The Fosters claim the chancellor erred in denying their petition to adopt Elizabeth and to terminate Harris’ parental rights. Under this Court’s well-established standard of review concerning the termination of parental rights, “[t]he chancellor’s findings of fact are viewed under the manifest error/substantial credible evidence test.” Vance v. Lincoln County Dep’t of Pub. Welfare, 582 So.2d 414, 417 (Miss.1991) (citing Bryant v. Cameron, 473 So.2d 174, 179 (Miss.1985); Veselits v. Cruthirds, 548 So.2d 1312, 1316 (Miss.1989)). Accordingly, this Court does not ask how it would have decided the case ab initio; rather, we examine whether credible proof exists to support the chancellor’s findings of fact by clear and convincing evidence. S.N.C. v. J.R.D., 755 So.2d 1077, 1080 (Miss.2000). It is not this Court’s role to substitute its judgment for the chancellor’s. Hensarling v. Hensarling, 824 So.2d 583, 587 (Miss.2002).

Statutory Authority and Relevant Case Law

¶ 15. A chancellor must look to several statutory provisions as well as established ease law when determining whether to terminate a natural parent’s rights and permit a contested adoption. Mississippi Code Annotated Section 93-17-6 dictates when a father has a right to object to an adoption. The relevant sections state:

(4)Proof of an alleged father’s full commitment to the responsibilities of parenthood would be shown by proof that, in accordance with his means and knowledge of the mother’s pregnancy or the child’s birth, that he either:
(a) Provided financial support, including, but not limited to, the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, and contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child; or
(b) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.
(5) If the court determines that the alleged father has not met his full responsibilities of parenthood, it shall enter an order terminating his parental rights and he shall have no right to object to an adoption under Section 93-17-7.
(6) If the court determines that the alleged father has met his full responsibilities of parenthood and that he objects to the child’s adoption, the court shall set the matter as a contested adoption in accord with Section 93-17-8.

Miss.Code Ann. § 93-17-6 (2002).

¶ 16. When a natural parent objects to the adoption of his or her infant child, a chancellor may nonetheless permit the adoption if the objecting parent has “abandoned or deserted such infant or is mentally, or morally, or otherwise unfit to rear and train it, including, but not limited to, those matters set out in subsection (2) of this section.” Miss.Code Ann. § 93-17-7(1) (2002). The criteria to be considered by the chancellor are set forth in the statute, and include in relevant part:

(b) The parent has not consistently offered to provide reasonably necessary food, clothing, appropriate shelter and treatment for the child.
(c) The parent suffers from a medical or emotional illness, mental deficiency, behavior or conduct disorder, severe physical disability, substance abuse or chemical dependency which makes him unable or unwilling to provide an adequate permanent home for the child at the present time or in the reasonably near future based upon expert opinion or based upon an established pattern of behavior.
(d) Viewed in its entirety, the parent’s past or present conduct, including his criminal convictions, would pose a risk of substantial harm to the physical, mental or emotional health of the child.
(f) The enumeration of conduct or omissions in this subsection (2) in no way limits the court’s power to such enumerated conduct or omissions in determining a parent’s abandonment or desertion of the child or unfitness under subsection (1) of this section.

Miss.Code. Ann. § 93-17-7(2).

¶ 17. In a contested adoption, Mississippi Code Annotated Section 93-17-8(l)(e) requires the chancellor to “determine first whether or not the objecting parent is entitled to so object under the criteria of Section 93-17-7 and then shall determine the custody of the child in accord with the best interests of the child and the rights of the parties as established by the hearings and judgments.” Miss.Code Ann. § 93-17-8 (2002).

¶ 18. Mississippi adheres to the “natural parent presumption,” which states, “[tjhere is a presumption that a natural parent is the proper custodian for their [sic] child.” In re the Custody of M.A.G., 859 So.2d 1001, 1003 (Miss.2003) (citing Logan v. Logan, 730 So.2d 1124, 1125 (Miss.1998)). The petitioners carry the burden “to show by clear and convincing evidence that the objecting parent has either abandoned or deserted the child or is mentally or morally or otherwise unfit to rear or train the child.” Petit v. Holifield, 443 So.2d 874, 877 (Miss.1984) (emphasis added).

¶ 19. In Ainsworth v. Natural Father, 414 So.2d 417, 420 (Miss.1982), this Court distinguished abandonment from desertion, stating, “abandonment has to do with the relinquishment of a right or claim, whereas desertion involves an avoidance of a duty or obligation.” We have defined abandonment as “any conduct by a parent which evinces a settled purpose to forego all duties and relinquish all parental claims to the child.” Natural Mother v. Paternal Aunt, 583 So.2d 614, 618 (Miss.1991). “The test is an objective one: whether under the totality of the circumstances ... the natural parent has manifested [his] severance of all ties with the child.” Ethredge v. Yawn, 605 So.2d 761, 764 (Miss.1992).

¶ 20. The Fosters argue Harris’ parental rights should be terminated and the adoption allowed to proceed based on two grounds — that he abandoned Elizabeth and that he is mentally and morally unfit to rear and train Elizabeth. The chancellor carefully considered the Fosters’ evidence and found it failed to reach the necessary clear and convincing standard. So long as credible proof supports the chancellor’s findings of fact, we must affirm the decision. It is not this Court’s role to substitute its judgment for that of the chancellor. Lee v. Lee, 798 So.2d 1284, 1290 (Miss.2001)

Abandonment as Grounds for Termination of Harris’ Parental Rights

¶ 21. The chancellor began his Opinion by stating his foundation belief “that before you can abandon or desert something or someone, the abandoning or deserting party must or should know that the person or thing abandoned or deserted actually exists....” In other words, the Fosters’ claim that Harris abandoned Elizabeth must be examined and judged from the time Harris knew or should have known that Elizabeth was his child. The chancellor then framed the issues before him:

[WJhether or not the Father knew or should have known that the Child was, in fact, his child, and, if so, does the statutory and case law allow him to object to the adoption of the Child by the [Fosters]. Further, that if the Father has the right to object, is it in the best interest of the child that the [Fosters] adopt the Child.

¶22. The chancellor found Harris became aware that Elizabeth was his child in July 2002, after a chance meeting with Rogers where she showed him a picture of Elizabeth and told him of the adoption proceedings. Immediately thereafter, Harris contacted the Department of Human Services and an attorney to assess his potential parental rights. The chancellor made the following findings of fact which support his determination that Harris had not abandoned Elizabeth:

(1) Harris and Rogers engaged in a sexual relationship, and Rogers took birth control pills for a portion of this time.
(2) While Rogers did inform Harris that she was pregnant, she never affirmatively stated that he was the father. Rogers later informed Harris that Hicks was the father.
(3) Harris took prenatal vitamins to Rogers in September 2000 because he wanted to get back in her good graces.
(4) In October 2000, Hicks called Harris wanting money for Rogers to have an abortion. Harris contacted an attorney about his rights concerning an abortion and was told he had none. Harris testified that he believed Hicks and Rogers were trying to scam him for money.
(5) Harris tried to contact Rogers through her father, but he was rebuffed. Harris testified that Rogers’ father told him that Hicks was the father of her baby.
(6) While Harris was in law school (August 2001—December 2001), someone cut out Elizabeth’s birth announcement and sent it to him.
(7) Harris did not have face-to-face contact with Rogers until July 2002. Rogers showed Harris a picture of Elizabeth, and Harris thought Elizabeth was his because she looked like him.
(8) Rogers initially told the Fosters that Hicks was the father of Elizabeth. After seeing Harris in July 2002, she informed the Fosters that Harris, not Hicks, was Elizabeth’s father.
(9) In the summer of 2002, Rogers told Harris about the adoption proceedings. He immediately contacted the Department of Human Services and an attorney concerning his legal rights.
(10) Harris testified that he called the Fosters multiple times trying to visit Elizabeth. Harris also testified that when he refused to sign the adoption papers, the Fosters stopped allowing his visitation with Elizabeth until the Court Order of June 2003.
(11) In September 2002, DNA tests established that Harris was Elizabeth’s natural father.
(12) Harris frequently bought presents for Elizabeth and delivered them to the Fosters. From October 12, 2002, until the last day of trial, Harris regularly paid child support, without a court order, amounting to $1,824.60. He also attended parenting classes.

¶ 23. Chancellor Watts’ findings of fact are supported by the record. Based on this evidence, Chancellor Watts arrived at the following conclusions of law supporting his determination that Harris did not abandon or desert Elizabeth:

(1) While Rogers was living with Harris, she often stayed out all night, giving Harris reason to believe that Rogers was having an affair with Hicks.
(2) Prior to their relationship, both Harris and Rogers had sexual relations with other parties, and Harris questioned Rogers’ faithfulness to him.
(3) Harris knew Hicks had fathered an illegitimate child with Rogers. After the break-up, Hicks called Harris about money for an abortion, and Harris heard Rogers, clearly intoxicated, slurring her speech in the background.
(4) Rogers never told Harris that Elizabeth was his. Rather, Rogers told Harris that Hicks was the father.
(5) Rogers’ father told Harris that Hicks was Elizabeth’s father and that Rogers was living with Hicks.
(6) Harris reasonably could have believed that Elizabeth was not his, even though he failed to take steps to determine whether he was actually the father.

¶ 24. The chancellor conceded that Harris could have done more to determine whether Elizabeth was his child. However, the chancellor noted “his failure to do so should not cause his parental rights to be terminated, and his child allowed to be adopted.”

¶ 25. The chancellor found that, once Harris knew Elizabeth was his, he never “evince[d] a settled purpose to forego all duties and relinquish all parental claims to the child,” such that he abandoned Elizabeth. See Natural Mother, 583 So.2d at 618. In fact, once he learned about the ongoing adoption proceedings, Harris filed an objection to the adoption and began undertaking the responsibilities of parenthood. See Miss.Code Ann. § 93-17-6. He frequently attempted visitation with Elizabeth, and though there was no court order in place, he provided financial support and bought Elizabeth several holiday gifts. Under the totality of the circumstances, we are unable to find that Chancellor Watts abused his discretion in making the determination that Harris did not “manifest! ] [his] severance of all ties with the child.” See Ethredge, 605 So.2d at 764.

¶ 26. The chancellor concluded “that when the Father reasonably determined that he was the Father of the Child, he committed himself to the responsibilities of parenthood.” The Fosters failed to present clear and convincing evidence that Harris exhibited the intent necessary for a finding of abandonment, so the chancellor denied the Fosters’ petition to adopt and to terminate Harris’ parental rights. Because the chancellor’s determination is amply supported by credible evidence in the record, we affirm the denial of the Fosters’ petition to adopt Elizabeth and to terminate Harris’ parental rights on the ground of abandonment.

Unfitness as Grounds for Termination of Harris’ Parental Rights

. ¶ 27. The Fosters also claim Harris is mentally and morally unfit to raise Elizabeth. They point to Harris’ “longtime substance abuse and chemical dependency and his self-described ‘incurable disease’ ” as evidence of his unfitness. The Fosters also note Harris’ “pattern of immoral and irresponsible behavior in having unprotected sexual relationships with several young women,” as well as his “inability to maintain gainful employment” as support for their petition.

¶ 28. The chancellor acknowledged Harris’ status as a recovering alcoholic and drug addict and noted such addictions are a lifetime struggle. However, the chancellor recognized that, at the time of the hearing, Harris had been clean and sober for nearly seven years. Additionally, the record indicates Harris is an active member and meeting leader for both Alcoholics Anonymous and Narcotics Anonymous. Given the remarkable turnaround in his life and his seven years of sobriety, the chancellor declined to hold Harris’ past substance abuse against him.

¶ 29. While premarital and unprotected sexual relations can be relevant to a determination of moral fitness, the chancellor found that Harris’ actions did not rise to a level requiring termination of his parental rights. The same finding was made with respect to Harris’ sporadic employment history, where many of his short-term jobs were held—and lost—during his years of substance abuse.

¶30. Again, the petitioners bear the burden of proving mental or moral unfitness by clear and convincing evidence. Petit, 443 So.2d at 877 The chancellor held that the Fosters failed to present adequate evidence of Harris’ inability to raise his child based on mental or moral unfitness. The chancellor’s decision was not manifestly wrong, as it was supported by credible evidence. Therefore, we affirm the chancellor’s denial of the Fosters’ petition to adopt Elizabeth and to terminate Harris’ parental rights on the ground of unfitness.

Recommendations by the Guardian Ad Litem

¶ 31. The Fosters contend the chancellor did not properly consider the recommendations of Ms. Perrealt, the guardian ad litem, when deciding not to terminate Harris’ parental rights and permit their adoption of Elizabeth. Ms. Per-realt found that Harris had abandoned Elizabeth because he knew, or should have known, he was the father. Ms. Perrealt based her conclusion on the following evidence:

(1) Harris had sex with Rogers.
(2) Harris contacted an attorney about stopping an abortion.
(3) Harris bought prenatal vitamins for Rogers.
(4) Harris had Elizabeth’s birth announcement and could have counted back nine months to discover the date of conception.
(5) Rogers told Ms. Perrealt that Harris knew he was the father.
(6) Harris allowed nearly a year after Elizabeth’s birth to go by before attempting to be a part of her life.
(7) Because Elizabeth had bonded with the Fosters, it was in her best interest to allow the adoption and to terminate Harris’ parental rights,

f 82. As this Court stated in S.N.C., 755 So.2d at 1082, “there is no requirement that the chancellor defer to the findings of the guardian ad litem, as proposed by the petitioners. Such a rule would intrude on the authority of the chancellor to make findings of fact and to apply the law to those facts.” Accordingly, “[t]he guardian ad litem’s presence ... in no way detracts from the chancellor’s duty to hear the evidence and make a decision on all of the evidence, not just on the testimony of the guardian ad litem.” Id. The chancellor properly included a summary of Ms. Per-realt’s recommendations in his opinion, and explained his reasons for not adopting her position. See S.N.C., 755 So.2d at 1082; Gunter v. Gray, 876 So.2d 315, 323 (Miss.2004).

¶ 33. After considering all the evidence, the chancellor was free to, and indeed obligated to, come to his own conclusions on the issues. As this Court noted in Hensarling:

We may not always agree with a chancellor’s decision as to whether the best interests of a child have been met, especially when we must review that decision by reading volumes of documents rather than through personal interaction with the parties before us. However, in custody cases, we are bound by the limits of our standard of review and may reverse only when the decision of the trial court was manifestly wrong, clearly erroneous, or an erroneous legal standard was employed.

Hensarling, 824 So.2d at 586-87; see also Wright v. Stanley, 700 So.2d 274, 280 (Miss.1997); Williams v. Williams, 656 So.2d 325, 330 (Miss.1995). The chancellor’s decision was supported by credible evidence. It was neither manifestly wrong nor clearly erroneous, and the chancellor employed the proper legal standards in arriving at his decision. As such, we affirm the chancellor’s denial of the Fosters’ Petition for Adoption and for Termination of Parental Rights.

II. Whether the chancellor erred in awarding temporary physical custody of Elizabeth to Harris.

¶ 34. The Fosters argue the chancellor erred in awarding temporary physical custody of Elizabeth to Harris without making an on-the-record finding pursuant to the Albright factors. Albright v. Albright, 437 So.2d 1003, 1004-05 (Miss.1983). They also claim Harris failed to address this issue in his brief and, thus, concedes that the chancellor committed reversible error. The Fosters are incorrect as to both assertions.

¶ 35. In his Opinion, the chancellor addressed the “natural parent presumption,” a bedrock principle of Mississippi family law. When deciding a custody dispute between a natural parent and a third party, the chancellor must employ the natural parent presumption.

[I]t is presumed that the best interests of the child will be preserved by it remaining with its parents or parent. In order to overcome this presumption there must be a clear showing that the parent has (1) abandoned the child, or (2) the conduct of the parent is so immoral {as} to be detrimental to the child, or (3) the parent is unfit mentally or otherwise to have the custody of his or her child. McKee v. Flynt, 630 So.2d 44, 47 (Miss.1993); Carter v. Taylor, 611 So.2d 874, 876 (Miss.1992); Rodgers v. Rodgers, 274 So.2d 671, 672 (Miss.1973). Absent clear proof of one of the above circumstances, the natural parent is entitled to custody of his or her child. McKee, 630 So.2d at 47 (citing Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986)).

Grant v. Martin, 757 So.2d 264, 265 (Miss.2000) (emphasis added).

¶ 36. Pursuant to these well-established guidelines, the Fosters were required to show by clear and convincing evidence that Harris abandoned Elizabeth, engaged in immoral conduct detrimental to Elizabeth, or was mentally or otherwise unfit to have custody of Elizabeth. The chancellor determined that the Fosters failed to present sufficient evidence on any of these grounds. Absent clear and convincing proof of any of those circumstances, “the natural parent is entitled to custody of his or her child.” McKee, 630 So.2d at 47 (emphasis added). Harris did not abandon this argument, but repeatedly emphasized it in his brief.

¶ 37. Given the presumption which bound Chancellor Watts, and binds this Court, a finding of abandonment or unfitness “is necessary to award custody to a third party against a natural parent and must be done before any analysis using the Albright factors to determine the best interests of the child.” M.A.G., 859 So.2d at 1004. Because the Fosters never satisfied the first requirement, we affirm the chancellor’s award of temporary physical custody of Elizabeth to Harris.

CONCLUSION

¶ 38. The chancellor’s findings of fact were amply supported by credible proof, and his determinations were not manifestly erroneous. Therefore, we affirm the chancellor’s denial of the Fosters’ petition to adopt Elizabeth and to terminate Harris’ parental rights. The chancellor properly concluded that the Fosters’ failure to overcome the natural parent presumption entitled Harris to custody of Elizabeth. Thus, we also affirm the chancellor’s award of temporary physical custody of Elizabeth to Harris.

¶ 39. AFFIRMED.

SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. COBB, P.J., AND RANDOLPH, J., NOT PARTICIPATING.

      . Pseudonyms will be used in this opinion, rather than the parties' names, in order to protect the identity of the child who is the subject of the adoption petition.

      . Harris argues the Fosters filed a Notice of Appeal appealing from the chancellor's June 24 Order, not the Final Judgment entered on March 9, 2004. Because the two issues raised on appeal by the Fosters did not arise from the June 24 Order, Harris claims that their arguments are irrelevant to the only issue properly appealed to this Court — that of a new trial. Harris made all of these arguments in his motion to dismiss this appeal.
      In their response to Harris’ motion to dismiss, the Fosters acknowledged their Notice of Appeal should have included the Final Judgment of March 9, 2004; however, the basis of the appeal was abundantly clear from the Fosters’ Statement of the Issues and the Brief of Appellant. The Fosters are obviously appealing the chancellor’s denial of the adoption and the award of temporary physical custody to Harris.
      M.R.A.P. 3(c) states, in part, "[a]n appeal shall not be dismissed for informality of form or title of the notice of appeal.” We already considered Harris' arguments on this issue and found them unconvincing. On September 26, 2005, a panel of this Court denied Harris' motions to strike Appellant's brief and to dismiss the appeal. Therefore, we need not address Harris’ near-verbatim rehashing of the grounds for his denied motion.

      . We need not address Harris' rather convoluted arguments concerning the definitions of "parent” and "father” as used in the relevant adoption statutes. The chancellor appropriately determined that the issue of abandonment must be considered from the time Harris knew or should have known that Elizabeth was his, requiring a finding that he knew during Rogers' pregnancy, shortly after Elizabeth’s birth, or fourteen months later when Rogers informed him of the ongoing adoption proceedings.


author: IRVING, J.,

text:
    Lorie G. STEVENS, individually, and as Mother and Next Friend of Gordon Joseph Stevens, III, a Minor, Jacob A. Stevens, a Minor, Jason R. Stevens, a Minor, and Jeffrey A. Stevens, a Minor, Appellant, v. Glenn R. TRIPLETT, Appellee.
    No. 2004-CA-01080-COA.
    Court of Appeals of Mississippi.
    Nov. 15, 2005.
    James W. Nobles, Jackson, Travis T. Vance, Vicksburg, attorneys for appellant.
    John Evans Gough, J. Tucker Mitchell, Ridgeland, attorneys for appellee.
   IRVING, J.,

for the Court.

¶ 1. Lorie Stevens sued Glenn Triplett as a result of an assault she suffered while attempting to inspect a piece of property which Triplett was offering for sale. She alleged that Triplett’s failure to secure the premises was the proximate cause of the injuries she suffered in the assault. At the close of discovery, the court found that Stevens had failed to produce any genuine issue of material fact and therefore granted summary judgment to Triplett. Feeling aggrieved, Stevens appeals.

¶ 2. Finding no error, we affirm the grant of summary judgment.

FACTS

¶ 3. On July 18, 1999, Stevens and her children went to look at one of Triplett’s properties in Vicksburg. The property, 2090 Skyfarm Avenue, is located at the end of a street in a secluded area. Stevens arrived at the property a few minutes before the prearranged meeting time with Triplett, who had not yet arrived. After Stevens’s arrival, she and her children exited her vehicle to look around. At that time, two men, Romika Perkins and Derrick Warren, appeared and threatened Stevens and her children at gunpoint. Perkins and Warren separated Stevens and her children into three groups and made them lie down in the gravel outside the house. At that point, Perkins and Warren heard Triplett’s truck coming up the driveway and consequently forced Stevens and her children into the house where they were locked in a small utility closet. Triplett arrived soon thereafter and was also forced into the house where he was robbed and beaten. Later, Stevens was robbed and sexually assaulted while her son was forced to watch. Perkins and Warren eventually left, and Stevens, her children, and Triplett were able to escape. Perkins and Warren are currently serving criminal sentences in the state penitentiary on convictions resulting from the incident.

¶ 4. Stevens produced evidence indicating that her family has suffered permanent damages as a result of the incident. Accordingly, Stevens has sued Triplett for negligence in failing to provide Stevens and her family with a reasonably safe premises as required by law.

¶ 5. Triplett testified in his deposition that there were several copies of the keys to the house unaccounted for at the time in question. Triplett also testified that when he left the building two days earlier, he did not check to make sure that all the doors and windows were locked; however, he later testified that he checked all the doors and had previously checked all the windows. Evidence indicated that the assailants gained access to the house by breaking a window and reaching in to unlock the door. Triplett admitted during his deposition that the deadbolt on the door must not have been locked since there were no signs that the door was broken in to gain entry. A Vicksburg police report detailing criminal activity in the area was produced during discovery. Stevens and Triplett each produced expert witnesses who testified as to the responsibilities owed by Triplett to keep the premises safe and whether or not Triplett had fulfilled those duties.

¶ 6. Shortly before trial was to commence, the court below granted Triplett’s motion for summary judgment. Additional facts follow as necessary below.

STANDARD OF REVIEW

¶ 7. We employ a de novo standard of review when reviewing a lower court’s grant of summary judgment. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77 (¶ 9) (Miss.2002). All evidence in the record will be viewed in the light most favorable to the party against whom summary judgment was entered. Id. Summary judgment will only be affirmed where the non-moving party fails to present any genuine issue of material fact. Id. The burden of showing that there is no genuine issue of material fact rests on the moving party. Id.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. A business owner has a duty to protect his invitees from the acts of third parties where such acts are reasonably foreseeable. Lyle v. Mladinich, 584 So.2d 397, 399 (Miss.1991). Acts of third parties are reasonably foreseeable if there is either: “(1) actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence exists....” Id. No evidence was produced showing or even suggesting that Triplett was even aware that Perkins and Warren existed, which leads to the inescapable conclusion that Stevens failed to prove that Triplett had actual or constructive knowledge of Perkins’s and Warren’s violent nature. Consequently, in order to prevail, Stevens was required to produce some evidence that an atmosphere of violence existed on the premises, such that Triplett would have had constructive notice of that atmosphere, in order to prevail. Lyle specifically established that knowledge of an atmosphere of violence may be proved by “the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity....” Id.

¶ 9. Stevens cites a recent Mississippi Supreme Court case that dealt with this same issue. That case upheld the decision of a jury finding that a shooting at a gas station was reasonably foreseeable. Gatewood v. Sampson, 812 So.2d 212, 220-21 (¶¶ 15-17) (Miss.2002). In affirming the jury’s verdict, the Gatewood court explained that “[tjhere was enough evidence presented to the jury to create a factual question whether an atmosphere of violence existed around the Ellis Isle Exxon about which differing ' opinions could be formed. Therefore, Gatewood fails to meet the burden necessary to overturn the jury’s verdict.” Id. at 221 (¶ 17). We find this case distinguishable from the case before us by virtue of the fact that in Gate-wood, sixty violent crimes were found to have been committed in the area in the three years prior to the incident, and two of those had happened more or less at the gas station. Id. at (¶ 15). By contrast, the Vicksburg police report shows only a handful of violent crimes in the area in the five years preceding the incident in question, none of which occurred on Triplett’s property.

¶ 10. Stevens also cites one of our recent cases addressing the issue of reasonable foreseeability. In that case, we affirmed a jury verdict against the proprietor of a laundry facility where ample evidence had been presented concerning the lack of security measures taken by the proprietor, who was shown to have been aware of the dangerous conditions around his business. Gibson v. Wright, 870 So.2d 1250, 1257-58 (¶¶ 22-27) (Miss.Ct.App.2004). In Gibson, the plaintiff presented evidence of: (1) poor lighting, (2) unlocked doors, (3) the security measures of other businesses in the area, (4) the previous hiring of a security guard, (5) police officer testimony as to the high crime rate in the area, and (6) testimony by a police officer that the defendant had been told to pursue extra security measures. Id. at (¶¶ 22-26). We find Gibson is distinguishable from the case sub judi-ce, because the only evidence presented by Stevens was the aforementioned police report and a single expert witness. There was significantly more evidence produced by the plaintiff in Gibson than produced by Stevens.

¶ 11. We find that Stevens has failed to present any evidence creating a genuine issue of material fact regarding the reasonable foreseeability of the assault by Perkins and Warren. The affidavit provided by Stevens’s expert witness merely states that the incident was foreseeable, without providing any analysis of the dangerous nature of the property as would be required for Stevens to prevail. Likewise, the crime report provided by the Vicksburg Police Department fails to show that an atmosphere of violence existed around 2090 Sky Farm Avenue, especially considering that the incident in question occurred in the middle of the afternoon. Even after expanding the neighborhood beyond the two blocks urged by Triplett, there is not enough criminal activity to show that an atmosphere of violence existed sufficient to put Triplett on any sort of notice. A handful of burglaries and assaults, a rape, and a kidnaping, most of which occurred in the middle of the night, are not enough to show that Triplett breached the duty he owed to Stevens’ when he invited her to see the property.

¶ 12. Stevens also argues that the incident was reasonably foreseeable because Triplett had not recovered all the keys to the property or locked the deadbolt on the door. We find this evidence particularly unconvincing for two reasons. First, the evidence produced indicated that a rock was used to break into the house, which indicates that the outstanding keys were not used to enter the house. Although the evidence indicated that Triplett probably did not lock the deadbolt on the door, that additional precaution would have only meant that the door would have to have been broken in to gain entry. Given the secluded nature of the property, anyone determined to get in could have obviously done so by breaking a window or busting in a door. Therefore, the outstanding keys and failure to deadbolt the door clearly did not lead to the assault. Second, the assault on Stevens and her family began outside the house. Since the assault began outside, it was particularly unforeseeable and had nothing to do with any keys or deadbolts. Perkins and Warren could have just as easily assaulted Stevens and her family elsewhere on the property. Therefore, we find that summary judgment was properly granted in this case.

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

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

      . It is not entirely clear whether they appeared from inside the house or from around the back of the house.

      . Perkins went to trial and was given a life sentence. Warren made a plea agreement and was sentenced to thirty-five years.

      . Perkins maintained that the house was already open when he and Warren arrived. Whether this is true or not, it was apparent from the evidence that someone had entered the house by breaking out a pane of glass on the door and unlocking it.

      . One of the locks on the door was a deadbolt which required a key to be unlocked. Had this deadbolt been locked, whoever initially broke into the house would have been forced to break the door in to gain access.

      . Triplett's expert swore that Triplett's behavior was safe and the crime was unforeseeable. Stevens's expert testified to the contrary.


author: BARNES, J.,

text:
    Barry Stephan TOWNSEND, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00504-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2005.
    Rehearing Denied April 18, 2006.

      John Kevin Cavender, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorneys for appellee.
   BARNES, J.,

for the Court.

¶ 1. Barry Stephan Townsend was convicted of one count of rape and two counts of sexual battery in the Circuit Court of Lee County on February 18, 2004. He was sentenced to ninety-five years in the custody of the Mississippi Department of Corrections, with twenty years suspended. Aggrieved by the verdict of the jury, Townsend appealed. Finding no merit to his arguments, we affirm the judgment of the trial court.

FACTS

¶ 2. D.I. testified that on August 12, 2002, she was walking along the road on her way from New Albany to Pontotoc to surprise her boyfriend at work and have lunch with him. D.I. did not have a car, so her plan was to walk down the road until she was able to catch a ride with a passerby. She testified that when Townsend pulled over to offer her a ride, she offered him five dollars to drive her to Pontotoc. Townsend responded that he first had to drop off a passenger, but that he would then drive her to Pontotoc. D.I. agreed and accepted the ride with Townsend.

¶ 3. D.I. testified that after she entered the car, Townsend drove to the house of a friend, where he used the five dollars she gave him to purchase crack cocaine. D.I. and Townsend both smoked crack cocaine, and then got back into Townsend’s vehicle and proceeded to a gas station, where Townsend purchased beer. At the insistence of his passenger, Townsend then drove to a home where he dropped off the passenger. D.I. testified that, when they reached the home, Townsend and the passenger became embroiled in a violent argument over the beer. The behavior of the men frightened D.I., and she ran off down the road. Seeing this, Townsend quickly drove out to D.I. and convinced her to get back in the car.

¶ 4. At this point, D.I. and Townsend were alone in the car, presumably driving to Pontotoc. D.I. testified that she became increasingly concerned that Townsend was driving in the wrong direction, and asked to be let out of the car. Townsend refused, began to physically and verbally assault D.I., and then proceeded to an abandoned gravel road. D.I. testified that Townsend parked the car and forced her to perform oral sex. For the next “four or five hours,” Townsend continually forced her to have both oral and vaginal sex with him in the car. At one point, D.I. claims that Townsend raped her on the hood of the car, in plain view of passing cars. When it was nearly dark, D.I. managed to escape into the woods. However, Townsend quickly found her, dragged her through the woods to the car, and hit her on the head and in the chest. Finally, after dark, Townsend and D.I. returned to the house where Townsend had previously dropped off his passenger. D.I. testified that there was an older man in the house when they returned; she attempted to signal to him for help, but stopped short because Townsend had threatened to kill her if she notified anyone of what had happened. Townsend then took D.I. to a bedroom where he forced her to have anal sex with him. D.I. testified that Townsend then fell asleep, whereupon she exited the bedroom, taking Townsend’s cell phone with her so that she could identify him to authorities.

¶ 5. After leaving the bedroom, D.I. was able to convince the older man in the house to drive her to a nearby gas station. She attempted to phone for help from the station, but the phone was broken. She then went across the street to an unoccupied house, where she waited until a customer arrived at the gas station. The customer drove D.I. to her mother’s house. Later, D.I. led police to the house where she claimed Townsend had taken her. After marking the location and securing a search warrant, the police returned to the house to execute the warrant. Townsend was present at the house when the police arrived and was taken into custody.

¶ 6. On February 18, 2004, Townsend stood trial for sexual battery and rape. The jury convicted him on all counts. Townsend then perfected this appeal, claiming that he did not receive effective assistance of counsel at trial, and that the trial judge erred in admitting a stolen car report into evidence.

I. WHETHER TOWNSEND’S RIGHT TO A FAIR TRIAL WAS PREJUDICED BECAUSE HIS TRIAL ATTORNEY FAILED TO PROVIDE CONSTITUTIONALLY EFFECTIVE ASSISTANCE OF COUNSEL

¶ 7. Townsend argues that his trial counsel did not provide constitutionally effective assistance because, Townsend claims, he was unaware that he was to stand trial on February 17, 2004; because counsel’s opening statement was too short; because counsel failed to object during the direct examination of D.I.; because counsel appeared to bolster the testimony of D.I.; because counsel failed to make other objections; and because counsel failed to call witnesses and put on evidence in Townsend’s defense. The State counters that Townsend did not stand trial on February 17, but instead the next day. The State argues that defense counsel’s opening statement presented a plausible defense theory of consensual sex; that counsel made proper and strategic objections throughout the trial; that counsel did not bolster D.I.’s testimony but instead attacked her credibility; and that Townsend has not, even with different counsel, indicated which witnesses should have been called or what evidence could have been admitted in his defense. In sum, the State argues that Townsend has not met the heavy burden that is required to show ineffective assistance of counsel on direct appeal. We agree with the State.

¶ 8. The Sixth Amendment guarantees the assistance of counsel for the defense 'of citizens accused of crimes. U.S. Const, amend. VI. The guarantee of assistance of counsel has been expanded to require “effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Whether the defendant received effective assistance' of counsel at trial is measured by a two-pronged test laid out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The test, as espoused by the Mississippi Supreme Court, is “(1) whether counsel’s overall performance was deficient, and (2) whether or not the deficient performance, if any, prejudiced the defense.” Taylor v. State, 682 So.2d 359, 363 (Miss.1996) (citing Cole v. State, 666 So.2d 767, 775 (Miss.1995)). The defendant bears the burden of proving both prongs of the test, and a strong, but rebuttable, presumption exists that the defense counsel’s actions were reasonable and strategic. Id. “The adequacy of counsel’s performance, as to its deficiency and prejudicial effect, should be measured by a ‘totality of the circumstances.’ ” Id. (citing Cole, 666 So.2d at 775). In addition, on direct appeal, the defendant must demonstrate that his representation was so deficient and prejudicial that the trial judge had the duty to declare a mistrial sua sponte “so as to prevent a mockery of justice.” Colenburg v. State, 735 So.2d 1099, 1102(¶8) (Miss.Ct.App.1999). On appeal, this Court is confined to review only those facts which show ineffective assistance of counsel which are found within the four corners of the record below. Id.

¶ 9. Viewing the totality of the circumstances in the instant case, it is clear that the actions of Townsend’s counsel constituted reasonable trial strategy. It is trae that counsel offered a short opening statement, made comparatively few objections throughout the trial, and failed to call witnesses in Townsend’s defense. But the burden of proving a defendant’s guilt is placed squarely on the shoulders of the prosecution; the defense is not required to make any showing of innocence. Here, Townsend’s trial counsel attacked the credibility of the State’s primary witness, D.I. Defense counsel’s line of questioning was designed to show gaps in her version of events, and counsel elicited through cross-examination that D.I. had smoked crack cocaine with Townsend, that D.I. had opportunities to attempt an escape from Townsend which were not taken, that the sexual acts on the car would have taken place within view of passing ears, and that D.I. did not immediately contact authorities when she returned to her home. Counsel’s opening statement, although short, clearly presented Townsend’s version of the story: that the sexual activity between Townsend and D.I. was consensual. Furthermore, a pretrial statement made by Townsend to police describing his version of the events which transpired on August 12, 2002, was entered into, evidence. Thus, despite the fact that he did not testify in his own defense, a choice which he voluntarily made, his version of events was still presented to the jury.

¶ 10. Townsend argues that his counsel’s failure to put on witnesses constituted ineffective assistance of counsel. As mentioned previously, counsel was not required to call witnesses, since the defendant carries no burden in proving his innocence. On appeal, Townsend’s argument amounts to nothing more than a bare allegation, because he has not stated what witnesses should have been called, or what additional evidence his counsel could have presented at trial. This being the ease, Townsend has not carried his burden on appeal in showing how his counsel’s decision not to call witnesses at trial was deficient performance. Although Townsend mentioned at least two witnesses at his sentencing hearing, he makes no mention of these witnesses on appeal. We note that the proper mechanism for presenting evidence which is not in the record below would be on motion for post-conviction relief. Colenburg, 735 So.2d at 1101—02(¶ 5). On direct appeal, we are restricted to the facts contained in the record. Id. at 1102(¶ 6). Townsend cannot raise proposed witnesses’ testimony or evidence not contained in the record on direct appeal. Id.

¶ 11. Viewing the totality of the circumstances of defense counsel’s performance at trial, we find that all of counsel’s actions of which Townsend complains fall within the ambit of reasonable trial strategy. We see no events in the record below which should have caused the trial judge to take the initiative and sua sponte declare a mistrial to prevent a mockery of justice. Townsend has not carried his burden of proving that his trial counsel’s performance was deficient.

II. WHETHER THE TRIAL COURT ERRED BY ADMITTING EVIDENCE OF A STOLEN CAR REPORT

¶ 12. Townsend argues that the trial court erred in admitting a stolen ear report which indicates that Townsend stole the car which he was driving on August 12, 2002. Townsend contends that he is entitled to a new trial because the introduction of the stolen car report did nothing more than inflame the jury, leading them to believe “that he somehow was a rampant criminal who ... simply may or may not be guilty of the crime of rape and sexual battery....” The State counters that the stolen car report showed both identity and opportunity, making it properly admissible under Rule 404(b) of the Mississippi Rules of Evidence, and that any prejudice caused by the report was only slight. The trial court ruled that the report was admissible as res gestae evidence.

¶ 13. It is well-settled law that we will not overturn a trial judge’s admission of evidence unless the admission amounts to an abuse of discretion. Bell v. State, 910 So.2d 640, 643(¶ 6) (Miss.Ct.App.2005) (citing Hentz v. State, 542 So.2d 914, 917 (Miss.1989)). In addition, “evidentiary rulings are affirmed unless they affect a substantial right of the complaining party.” Id. (citing Sewell v. State, 721 So.2d 129, 138(¶ 50) (Miss.1998)). The question before the trial judge in the instant case was whether the stolen car report was evidence of “other crimes, wrongs or acts” which should be excluded Rule 404(b). Under Rule 404(b), evidence of other crimes may be admitted if the evidence shows “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Evidence of other crimes may also be admitted under the res gestae exception, which provides that such evidence may be admitted if it is “so interrelated to the charged crime as to constitute a single transaction or occurrence or a closely related series of transactions or occurrences.” Wheeler v. State, 536 So.2d 1347, 1352 (Miss.1988). But if evidence of other crimes is introduced for the purpose of showing that the defendant acted in conformity therewith, the admission of that evidence constitutes reversible error. Ainsworth v. State, 756 So.2d 826, 828(¶ 8) (Miss.Ct.App.2000).

¶ 14. Townsend argues that the stolen car report does not fall within any of these exceptions. Specifically, he posits that the report was not necessary to prove identity because the car was identified by D.I. He argues further that the report was not res gestae because his alleged stealing of the car was not intimately connected with the alleged events which occurred on August 12, 2002. We find that the stolen car report was properly admitted to show opportunity for Townsend to commit the crimes charged. Townsend did not own a car, and since, according to D.I.’s testimony and Townsend’s admitted statement, the car was an integral part of the events which took place, the admission of the stolen car report allowed the jury to understand the events which occurred on the day in question. D.I. testified that Townsend picked her up in the car, and raped her in and on the car. Townsend, in his second statement to police, stated that he had picked up D.I. in the car, and that they had attempted to have sex in the car. Since Townsend did not own a car, the report showed the jury how Townsend was able to obtain the vehicle in and on which all of these events occurred.

¶ 15. Furthermore, we agree with the State that the prejudicial effect of the stolen car is slight. In Townsend’s first statement made to police, he states that he took the car, but that he was making half of the payments on the car. Townsend’s girlfriend, who filed the stolen car report, was paying the other half. Officer Mickey Baker, the officer who took Townsend’s statement, confirmed this statement at trial. Thus, the jury was presented with evidence which showed that the stolen car report resulted from the relationship between Townsend and his girlfriend, and not a rampant crime spree. Certainly the prejudicial effect of the stolen car report paled in comparison to the testimony of repeated rape and sexual battery given by D.I.

¶ 16. We find that the trial judge did not abuse her discretion by admitting the report into evidence.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY OF CONVICTION OF COUNT I — RAPE AND SENTENCE OF THIRTY-FIVE YEARS; COUNT III — SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS; COUNT IV — SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS, WITH TWENTY YEARS SUSPENDED, WITH ALL SENTENCES TO RUN CONSECUTIVELY TO EACH OTHER, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., BRIDGES, IRVING, CHANDLER, GRIFFIS AND ISHEE, JJ„ CONCUR.

      . Townsend argued at trial that this statement should not have been introduced because it was only elicited when the police confronted Townsend over evidence that he had stolen the car he was driving. Townsend argued that the statement would be prejudicial because it contradicted a previous statement he gave regarding the events in question. However, we observe that this second statement presents the version of events which Townsend presented at trial.


author: ISHEE, J.,

text:
    Barbara Jean GOFF and Henry Goff, Appellants v. James E. COE, O.D., Individually and Premier Eye Clinic, P.A., A Mississippi Corporation, Appellees.
    No. 2004-CA-02281-COA.
    Court of Appeals of Mississippi.
    Jan. 17, 2006.
    Rehearing Denied April 11, 2006.
    Certiorari Denied July 20, 2006.

      Robert E. O’Dell, Pascagoula, attorney for appellants.
    Scott Corlew, Pascagoula, attorney for appellees.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Barbara Jean Goff and Henry Goff (“the Goffs”) brought a personal injury action, with a derivative action for loss of consortium, in the Circuit Court of Jackson County against James E. Coe (“Coe”) and Premier Eye Clinic, P.A. (“Premier”). The trial judge granted Coe’s and Premier’s motion for summary judgment, and the Goffs now appeal. Finding no error, we affirm.

FACTS

¶ 2. On or about April 26, 2001, the Goffs visited Premier in order to have Barbara Jean Goffs eyes examined by Coe and to procure eyeglasses. During the course of the Goffs’ visit, Barbara Jean Goff allegedly fell while attempting to sit on a rolling stool provided for in the preexamination screening. The stool had rollers on the bottom, had no handles, and had a ring near the bottom to support the legs, but was otherwise an ordinary stool. When Barbara Jean Goff attempted to sit on the stool, it allegedly “scooted” out from underneath her, causing her to fall to the floor and suffer injuries, including broken ribs. Barbara Jean Goff alleges that she received no warning or assistance in sitting on the stool. Additionally, Barbara Jean Goff did not complain of her injury to anyone at Premier on the day the alleged injury occurred.

STANDARD OF REVIEW

¶ 3. This Court reviews a trial court’s grant of summary judgment under a de novo standard. Owens v. Thomae, 904 So.2d 207, 208(¶ 7) (Miss.Ct.App.2005). For summary judgment to be proper, “there must exist no genuine issues of material fact, and the moving party must be entitled to judgment as a matter of law.” Mozingo v. Scharf, 828 So.2d 1246, 1249(¶ 5) (Miss.2002). If any genuine issue of material fact exists, summary judgment is improper and we will reverse the decision of the trial court. Id. at 1249-50(¶ 5).

ISSUES AND ANALYSIS

¶ 4. In analyzing premises liability, a court must first look to whether the injured party, at the time of the injury, was an invitee, licensee, or trespasser. Estate of White ex rel White v. Rainbow Casino-Vicksburg P’ship, 910 So.2d 713, 718(¶ 15) (Miss.Ct.App.2005). After determining the status of the injured party, we must next determine what duty was owed to that party by the premises owner/business operator. Id. Here, it is undisputed that Barbara Jean Goff was a business invitee. “The owner or operator of business premises owes a duty to an invitee to exercise reasonable care to keep the premises in a reasonably safe condition and, if the operator is aware of a dangerous condition, which is not readily apparent to the invitee, he is under a duty to warn the invitee of such condition.” Jerry Lee’s Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988). When a dangerous condition is caused by the premises owner’s or business operator’s own negligence, it is not required that a plaintiff show that the owner/operator had knowledge of such condition. Id.

¶ 5. In Tharp v. Bunge, 641 So.2d 20, 25 (Miss.1994), our supreme court abolished the “open and obvious” defense to premises liability, applying instead our true comparative negligence standard. The court in Tharp stated:

This Court should discourage unreasonably dangerous conditions rather than fostering them in their obvious forms. It is anomalous to find that a defendant has a duty to provide a safe premises and at the same time deny a plaintiff recovery from a breach of that same duty. The party in the best position to eliminate a dangerous condition should be burdened with that responsibility.

Id.

¶ 6. In Vaughn v. Ambrosino, 883 So.2d 1167, 1170-71 (¶¶ 11-12) (Miss.2004), the court reaffirmed the holding of Tharp, but went on to clarify the status of that defense, stating:

It would be useful to pause here and distinguish a dangerous condition, from a claim that the defendant failed to warn of a dangerous condition. Tharp applies to the former. With respect to the latter, however, it would be strange logic that found it reasonable to allow a plaintiff to pursue a claim against a defendant for failure to warn of an open and obvious danger. One would struggle, indeed, to justify the need to warn a plaintiff of that which was open and obvious. Stated differently, a warning of an open and obvious danger would provide no new information to the plaintiff. Stated still another way, a thing warned of is either already known to the plaintiff, or it’s not. If it’s already known to the plaintiff, then the warning serves no purpose. If it is not already known to the plaintiff, then the thing warned of was not open and obvious in the first instance. Thus, an invitee may not recover for failure to warn of an open and obvious danger.

¶ 7. In the case sub judice, the pertinent evidence presented to the trial judge was that: (a) on the Goffs’ visit to Premier, Barbara Jean Goff was provided a stool to sit on in the preexamination screening; (b) the stool had no handles, had rollers on the bottom, and was otherwise an ordinary stool; (c) Barbara Jean Goffs short stature and obesity gave her difficulty in sitting on the stool; (d) no one warned Barbara Jean Goff about sitting on the stool or assisted her in sitting on the stool; and (e) the stool allegedly “scooted” out from underneath Barbara Jean Goff when she attempted to sit on it, allegedly causing her to fall to the floor and receive injuries which included broken ribs. Viewing this evidence in the light most favorable to the Goffs, we cannot say that the trial judge erred in granting summary judgment for Coe and Premier. There was no evidence that the stool was defective or unreasonably dangerous. Nor was there any evidence that some other unreasonably dangerous condition existed which caused the stool to move from underneath Barbara Jean Goff when she attempted to sit on it. A premises owner or business operator is not the insurer of a business invitee’s safety. See Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 773 (Miss.1992). Therefore, we find that the trial court did not err in granting summary-judgment to Coe and Premier on the premises liability claim. We further affirm the trial court’s grant of summary judgment concerning Henry Goffs claim of loss of consortium, as such claims are purely derivative. Daulton v. Miller, 815 So.2d 1237, 1241(¶ 17) (Miss.Ct.App.2001).

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: KING, C.J.,

text:
    Mark A. THOMAS a/k/a Mark Anthony Thomas, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-00664-COA.
    Court of Appeals of Mississippi.
    Jan. 31, 2006.
    Rehearing Denied April 18, 2006.
    Certiorari Denied July 20, 2006.

      Mark A. Thomas, Appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. On May 23,1994, Mark Thomas pled guilty to one count of murder in the Jackson County Circuit Court. He received a life sentence for his crime, to run concurrently with a federal sentence. On January 28, 2004, Thomas filed a motion for post-conviction relief which the court denied on February 23, 2004. Aggrieved, by the denial of his post-conviction motion, Thomas filed his notice of appeal on March 8, 2004. Finding that Thomas’ motion was not timely filed, the denial of post-conviction relief is affirmed.

DISCUSSION

¶ 2. In case of a guilty plea, all claims for post-conviction relief must be brought within three years of the final judgment of conviction. Miss.Code Ann. § 99-39-5(2) (Supp.2005). The only exceptions to this time bar are: (1) where there has been an intervening decision by the United States Supreme Court, or the Mississippi Supreme Court, which the prisoner can show adversely affected the outcome of his conviction or sentence; (2) where the prisoner has newly discovered evidence not reasonably discoverable at the time of trial, which if it had been introduced at trial would have caused a different result; and (3) where the prisoner claims that his sentence has expired or his probation, parole, or conditional release has been unlawfully revoked. Id.

¶ 3. Thomas pled guilty and received a life sentence on May 23, 1994. His post-conviction relief motion should have been filed within three years of May 23,1994, or before May 23, 1997. Thomas’ request for post-conviction relief was filed on January 28, 2004, more than six years after the statute of limitations had run. Therefore, Thomas’ motion for post-conviction relief is time barred.

¶ 4. However, Thomas claims that his counsel failed to provide him with effective assistance and therefore his request for post-conviction relief should survive the time bar. There are certain errors affecting fundamental constitutional rights that may be excepted from procedural bars that would otherwise prohibit their consideration. Luckett v. State, 582 So.2d 428, 430 (Miss.1991). Included within that group are instances where an attorney’s performance is so deficient and prejudicial to a defendant, that it is deemed to be violative of the defendant’s fundamental constitutional rights. Bevill v. State, 669 So.2d 14, 17 (Miss.1996).

¶ 5. However, merely raising the claim of ineffective assistance of counsel is insufficient to surmount the procedural bar. Id. Therefore it is necessary that we first consider Thomas’ claim of ineffective assistance of counsel for the sole purpose of determining whether it may be considered as an exception to the time bar.

¶ 6. In order to successfully claim ineffective assistance of counsel, a defendant must prove that his counsel’s performance was deficient, and that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thomas claims that his counsel persuaded him to plead guilty rather than pursuing motions for a speedy trial. It is this action which Thomas claims was ineffective assistance of counsel. Counsel’s failure to raise a speedy trial violation is grounds for a claim of ineffective assistance of counsel. Hymes v. State, 703 So.2d 258, 260-61 (¶¶ 11-14) (Miss.1997).

II7. However, to prevail on his ineffective assistance of counsel claim, Thomas must still show that, but for his counsel’s deficiency, his speedy trial claim would have succeeded. This Court considers the effectiveness of Thomas’ efforts in that endeavor through the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). That balancing test requires consideration of the following factors: (1) length of the delay, (2) reason for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the defendant was prejudiced by the delay. Id. at 530, 92 S.Ct. 2182. These factors are closely related and must be considered together. Id. at 533, 92 S.Ct. 2182. Therefore, the question of whether counsel was ineffective must be determined from the totality of the circumstances. Id.

¶ 8. Length of delay: The constitutional right to a speedy trial attaches at the time of arrest. Smith v. State, 550 So.2d 406, 408 (Miss.1989). Any delay in excess of eight months is considered presumptively prejudicial and requires a consideration of the other Barker factors. Id. Thomas was arrested on January 8, 1993. On May 23, 1994, Thomas entered his guilty plea. There was a total of 501 days between Thomas’ arrest and plea, which requires a consideration of the remaining Barker factors.

¶ 9. Reason for the delay: Thomas secured one continuance for a psychiatric examination, which accounted for ninety-one days of the 501 day delay. Any delays in the prosecution caused by the defendant are not counted against the State. Jefferson, 818 So.2d at 1106(¶ 11). The State offers no explanation for the remaining 410 days of delay. Where the defendant has not caused the delay, and the State has failed to show good cause for the delay, this factor must weigh against the State. Smith v. State, 550 So.2d 406, 409 (Miss.1989). Therefore, this factor weighs slightly in favor of Thomas.

¶ 10. Whether the defendant asserted his right to a speedy trial: A defendant asserting his speedy trial right is entitled to strong evidentiary weight in determining whether he is being deprived of that right. Barker, 407 U.S. at 531-32, 92 S.Ct. 2182. Thomas made a demand for a speedy trial on December 20, 1993 and renewed that demand by motion on April 2, 1994. This factor weighs in favor of Thomas.

¶ 11. Prejudice: The burden of persuasion is on the State to show that any delay did not prejudice the defendant. Anderson v. State, 874 So.2d 1000, 1008 (¶34) (Miss.Ct.App.2004). However, absent a showing of actual prejudice, this prong cannot weigh heavily in favor of the defendant. Id. Thomas claims prejudice in that a potential witness was lost due to the delay. However, Thomas offers no evidence of who the witness was, or the supposed witness’s importance, other than a blanket claim of corroboration of self-defense. Where the defendant raises a claim of constitutionally ineffective assistance of counsel in an effort to defeat the time bar, he must affirmatively show that he suffered actual prejudice. In only claiming that contact has been lost with a potential witness, Thomas has failed to do so. Therefore, this prong does not weigh strongly in Thomas’ favor.

¶ 12. Although the scales tip slightly in favor of Thomas’ claim for speedy trial, we find that his ineffective assistance claim is still without merit. Although Thomas’ attorney’s performance may have been deficient in not pursuing the speedy trial violation, Thomas has still failed to show actual prejudice that may have denied him any fundamental constitutional rights. Therefore, his attempt to overcome the post-conviction relief time bar by claiming ineffective assistance is also without merit. Accordingly, Thomas’ post-conviction relief claim is time barred, and we affirm the denial of post-conviction relief.

¶ 13. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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