source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Timothy PRYER a/k/a Tim a/k/a Timothy Gene Pryer, Appellant. v. STATE of Mississippi, Appellee.
    No. 2005-KA-02014-COA.
    Court of Appeals of Mississippi.
    March 6, 2007.
    Rehearing Denied June 26, 2007.

      Lori Nail Basham, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. On October 6, 2005, in the Circuit Court of Itawamba County, Timothy Gene Pryer was convicted of sexual battery and sentenced to serve twenty years in the custody of the Mississippi Department of Corrections, with fifteen years to serve and five years suspended pending successful completion of five years post-release supervision. Pryer was also fined $5,000, ordered to pay all court costs, and ordered to register with the State of Mississippi as a sex offender. Aggrieved by the judgment of the circuit court, Pryer appeals his conviction, raising the following issues:

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING M.R.E. 803(25) TESTIMONY?
II. WHETHER THE CIRCUIT COURT ERRED IN DENYING PRYER’S MOTION FOR DIRECTED VERDICT AND WHETHER THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶2. Finding no error, we affirm the decision of the circuit court.

STATEMENT OF THE FACTS

¶ 3. On July 19, 2004, ten-year-old S.F. told her mother that her stepfather, Pryer, had sexually abused her. S.F.’s statement was in response to her mother’s inquest as to whether her stepfather or anybody else had ever touched her inappropriately. S.F.’s mother testified at trial that she had no reason to suspect Pryer of sexual abuse, but periodically asked S.F. this question because she has repressed memories of sexual abuse during her own childhood. S.F.’s mother and Pryer were married at the time of the incidents, and S.F. and her two brothers lived in the home with their mother and Pryer. Pryer worked days as a self-employed construction worker and would stay home with his stepchildren while their mother worked nights at a nursing home in Tupelo, Mississippi. The alleged incidents took place over an uncertain period of time. S.F. originally told her mother that Pryer began touching her inappropriately prior to school letting out in May 2004, but at trial she testified that the incidents began just before Christmas 2003. However, S.F. consistently stated that the last incident occurred during the week prior to July 19, 2004.

¶ 4. S.F. testified that, when her mother was at work, Pryer would make her sit in his lap as he placed his hand down her pants and touched her inappropriately. The record and briefs detailed the specific facts about the abuse that we have no desire to repeat here. Suffice it to say that the State produced medical testimony consistent with S.F.’s testimony that she had been sexually abused. Among those testifying for the State were the victim, the victim’s mother, a social worker with the Department of Human Services, Tawnya Lagley, who interviewed S.F. regarding the abuse, a criminal investigator with the Itawamba County Sheriffs Department, Leonard Prien, who investigated the case and sat in on S.F’s interview with DHS, and Dr. William L. Marcy, the doctor that conducted the physical examination of S.F. shortly after the incidents were reported. On appeal, Pryer maintains that the circuit court admitted the testimony of the victim’s mother, DHS Social Worker Langley, and Investigator Prien in error and that the State failed to prove sexual penetration, an essential element of the crime of sexual battery.

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING M.R.E. 803(25) TESTIMONY?

STANDARD OF REVIEW

¶ 5. “The standard of review for either the admission or exclusion of evidence is abuse of discretion.” Perry v. State, 904 So.2d 1122, 1124(¶ 7) (Miss.Ct.App.2004) (quoting Harrison v. McMillan, 828 So.2d 756, 765(¶ 27) (Miss.2002)). “This Court will not reverse an erroneous admission or exclusion of evidence unless the error adversely affects a substantial right of a party.” Perry, 904 So.2d at 1124(¶ 7) (citing Gibson v. Wright, 870 So.2d 1250, 1258(¶ 28) (Miss.Ct.App.2004)). Employing this standard, we examine the trial court’s ruling for abuse of discretion and then inquire into the affect, if any, this ruling had on a substantial right of the party.

DISCUSSION

¶ 6. Pryer argues that the circuit court erred in admitting, under the “tender years exception” to the hearsay rule, embodied in Mississippi Rule of Evidence 803(25), the victim’s mother’s, DHS Social Worker Langley’s, and Investigator Prien’s testimony as to what S.F. told them about the sexual abuse she experienced. Pryer maintains that the statements made by S.F. to her mother, DHS Social Worker Langley, and Investigator Prien, as well as S.F.’s own testimony at the Rule 803(25) hearing lacked spontaneity. Pryer contends that spontaneity is a requirement to the admissibility of Rule 803(25) testimony and cites a list of twelve factors, found in the comment to Rule 803(25), that the court should apply in determining whether the circumstances under which the statements were made present sufficient indicia of reliability. Pryer also cites the testimony of Dr. Louis Masur, III, a clinical psychologist called on behalf of the defense, who stated that questions asked by social workers regarding sexual abuse unintentionally lead children to allege sexual abuse, and that the repeated questioning by the victim’s mother coupled with the questions asked by Langley were “leading enough to implant a suggestion that the child had been sexually abused.”

¶ 7. In addition to a lack of spontaneity, Pryer alleges that, inconsistencies as to the time and place of the incidents of sexual battery, found in S.F.’s testimony during the 803(25) hearing, illustrate S.F.’s faulty recollection, and that remoteness of the declarant’s faulty recollection is a factor for the court to consider under the comment to Rule 803(25). The testimony offered at the Rule 803(25) hearing indicated that S.F. originally told her mother that the incidents began in May of 2004, but she testified that the incidents began before Christmas 2003 at the trial. However, S.F. consistently stated that the last incident occurred during the week prior to July 19, 2004. Pryer further complains that S.F. testified at the Rule 803(25) hearing that the incidents always occurred on a recliner in the living room, but at trial, she included the bedroom as one of the places that the sexual abuse occurred.

¶8. The record shows that the circuit judge conducted the required Rule 803(25) hearing outside the presence of the jury. At the Rule 803(25) hearing, the circuit judge heard extensive testimony by witnesses for both the prosecution and the defense. In his ruling on the admissibility of the proffered Rule 803(25) testimony, he accepted the testimony of the victim, the victim’s mother, DHS Social Worker Langley, and Investigator Prien, regarding the alleged sexual abuse, finding sufficient in-dicia of reliability. The circuit judge, in support of his ruling, made extensive findings as to the factors necessary to ascertain the veracity of the proffered Rule 803(25) testimony and encompassed the factors listed in the comment to the rule. Those findings included: (1) that the victim at ten years of age was of tender years at the time of the alleged incidents; (2) that the victim had no apparent motive to lie about the alleged sexual abuse; (3) that although the original allegations were not spontaneous and were spoken when only her mother was present, the victim repeated the statements to Investigator Prien, DHS Social Worker Langley, and in court in a manner consistent with her original allegation; (4) that the timing of the declaration was approximately one week after the last incident; (5) that the relationship between the victim and the persons testifying was not an issue influencing the statements; (6) that there was no evidence that the victim or the declarants had a faulty recollection; (7) that the declar-ants were certain as to the statements made by the victim; (8) that there was no evidence offered that called into question the credibility of the victim’s mother, DHS Social Worker Langley, or Investigator Prien, and that none of them had an apparent motive to lie; (9) that the victim appeared to know the difference between right and wrong, was of sufficient age to know that the alleged incidents of abuse constituted inappropriate touching, and had never accused anyone else of sexual abuse, all of which make it unlikely that the allegations were fabricated; (10) that no suggestive techniques were used in eliciting the victim’s statements; and (11) that the statements were corroborated by the use of an anatomical doll which was used by the victim to demonstrate where she was inappropriately touched by Pryer, as well as by the medical testimony of Dr. Marcy that physical evidence existed that he considered to be consistent with the alleged sexual abuse.

¶ 9. We find that the circuit judge followed the proper procedure required by Rule 803(25) of the Mississippi Rules of Evidence. Therefore, the circuit judge did not abuse his discretion and the ruling did not adversely affect a substantial right owed to Pryer. Accordingly, we find this issue to be without merit.

II. WHETHER THE CIRCUIT COURT ERRED IN DENYING PRYER’S MOTION FOR DIRECTED VERDICT AND WHETHER THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

STANDARD OF REVIEW

¶ 10. Assignments of error based upon a denial of a motion for a directed verdict challenge the sufficiency of the evidence. Boose v. State, 851 So.2d 391, 394(¶ 13) (Miss.Ct.App.2003). The standard of review of a claim that the evidence is insufficient to support the verdict requires the reviewing court to accept as true all evidence tending to support the verdict, including the inferences derived therefrom, and ask the question, “after viewing the evidence in the light most favorable to the prosecution, [if] any rational juror could have found the essential elements of the crime beyond a reasonable doubt.” Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005). This Court may only reverse the denial of the directed verdict “where with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” Boose, 851 So.2d at 394(¶ 14).

¶ 11. “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Herring v. State, 691 So.2d 948, 957 (Miss.1997) (citing Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989)). “Only' when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Herring, 691 So.2d at 957 (citing Benson v. State, 551 So.2d 188, 193 (Miss.1989)). Thus, the scope of review on this issue is limited in that all evidence must be construed in the light most favorable to the verdict. Herring, 691 So.2d at 957 (citing Mitchell v. State, 572 So.2d 865, 867 (Miss.1990)).

DISCUSSION

¶ 12. Pryer argues that the trial court erred in failing to grant his motion for directed verdict because the State’s medical expert testified only that the physical examination of the victim revealed signs consistent with, but not proof of, “sexual penetration,” and that a young child is not capable of identifying when “sexual penetration” has occurred. For these reasons, and in combination with Pryer’s allegation that the testimony admitted under Rule 803(25) lacked sufficient indicia of reliability, Pryer argues that the verdict of the jury was against the overwhelming weight of the evidence and asks this Court to reverse and remand for a new trial.

¶ 13. We first address Pryer’s challenge to the sufficiency of the evidence. Our supreme court has held that although “penetration is the very essence of sexual battery,” only slight penetration is required to constitute the offense. Johnson v. State, 626 So.2d 631, 632-33 (Miss.1993) (quoting Thompson v. State, 468 So.2d 852, 853 (Miss.1985)). Furthermore, penetration need not be established by actual medical evidence. Wilson v. State, 606 So.2d 598, 599 (Miss.1992). This Court has previously held that a child victim’s testimony indicating digital penetration of the vagina was sufficient to show that the defendant committed sexual battery. See Pittman v. State, 836 So.2d 779 (Miss.Ct.App.2002). During Pryer’s trial, S.F. testified that Pryer, “stuck his hand down my panties and was putting his finger in my middle spot.” S.F.’s testimony was corroborated by Dr. Marcy, who testified that his examination of S.F. revealed an inflamed hymen. Dr. Marcy concluded that, because he found no evidence of poor hygiene, vaginal infection, or other known causes of hymen inflammation, that the inflammation was consistent with either digital penetration or with a finger being placed in between S.F.’s labia, but not actually penetrating her genital opening. Furthermore, our supreme court has determined that any penetration of the labia, no matter how slight, is sufficient to establish the element of “sexual penetration” in a rape case. McGee v. State., 452 So.2d 438, 440-41 (Miss.1984). The same standard may also be applied to sexual battery. See Johnson v. State, 626, So.2d 631, 633 (Miss.1993). Viewing the evidence presented at trial in the light most favorable to the State, we find the testimony presented against Pryer sufficient to establish the element of “sexual penetration.” Accordingly, we find this issue to be without merit.

¶ 14. Having already disposed of the Rule 803(25) issue raised by Pryer, and finding the evidence presented against Pryer sufficient to establish the element of “sexual penetration” beyond a reasonable doubt, we find that the verdict of the jury was not contrary to the overwhelming weight of the evidence, and affirm Pryer’s conviction of sexual battery.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF ITAWAMBA COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS WITH FIFTEEN YEARS TO SERVE AND FIVE YEARS SUSPENDED PENDING SUCCESSFUL COMPLETION OF FIVE YEARS POST-RELEASE SUPERVISION IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND SAID SENTENCE SHALL NOT BE REDUCED OR SUSPENDED AND SHALL NOT BE ELIGIBLE FOR ANY TYPE OF EARLY RELEASE OR PAROLE, $5000 FINE, ORDERED TO REGISTER WITH THE STATE OF MISSISSIPPI AS A SEX OFFENDER, SHALL NOT HAVE ANY CONTACT DIRECTLY OR INDIRECTLY THROUGH MAIL, THIRD PARTY OR OTHER MEANS WITH THE VICTIM OR ANY MEMBER OF THE VICTIM’S FAMILY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ITAWAMBA COUNTY.

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

      . A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

      . (1) whether there is an apparent motive on declarant’s part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declarant’s faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying that the statements were made; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statements; and (12) whether the declarants age, knowledge, and experience make it unlikely that the de-clarant fabricated, (emphasis added).


author: ROBERTS, J.,

text:
    Raymond L. MOORE a/k/a Raymond Lewayne Moore, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00140-COA.
    Court of Appeals of Mississippi.
    March 13, 2007.
    Rehearing Denied June 26, 2007.

      Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. On January 11, 2006, a jury sitting before the Leake County Circuit Court found Raymond Moore guilty of burglary. Consequently, the circuit court sentenced Moore to seven years in the custody of the Mississippi Department of Corrections. Aggrieved, Moore appeals and raises three issues, listed verbatim:

I. THE COURT ERRED IN SUSTAINING THE PROSECUTION’S OBJECTIONS TO APPELLANT’S CROSS-EXAMINATION OF JAMES BRYANT PAGE ABOUT DANNY RAY WHITE.
II. THE COURT ERRED IN REFUSING TO PERMIT APPELLANT TO CROSS EXAMINE JAMES BRYANT PAGE, THE PRIMARY PROSECUTION WITNESS ABOUT PAGES UNCON-VICTED CRIMES THAT REFLECTED BADLY ON HIS CREDIBILITY.
III. THE COURT ERRED IN DENYING APPELLANT’S MOTION FOR A DIRECTED VERDICT, IN REFUSING APPELLANT’S REQUEST FOR A PEREMPTORY INSTRUCTION AND IN DENYING APPELLANT’S MOTION FOR A NEW TRIAL. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

FACTS

¶ 2. Moore’s conviction stems from a burglary of the Sturdivant family shed in the Tuscola community in Leake County. The Sturdivant home was surrounded with woods on three sides. Their nearest neighbor was two to three hundred yards away.

¶ 3. Around noon on June 15, 2005, Heather Sturdivant was at home with her two young daughters. Heather saw a small pickup truck drive up to her house. Heather later noticed that the pickup did not have a license plate or a rear bumper. She did not recognize the truck or the two men inside it. One of the men stood out in Heather’s mind because he was missing his arm just below the elbow. Heather remembered that the other man had long sideburns.

¶4. The two men went to Heather’s carport door, rang the doorbell and, by Heather’s description, “banged” on the door. Because Heather was alone with her two daughters and her nearest neighbor was out of sight, Heather was reluctant to answer the door. When the two men did not get a response at the carport door, they went to Heather’s front door. Again, they rang the doorbell and “banged” on the front door. Again, Heather did not answer.

¶ 5. After they tried both doors and got no response, the man with the long sideburns started “going through things” in the storage areas of the Sturdivants’ carport. He then went into a storage room connected to the Sturdivants’ carport. The storage room exited into the Sturdi-vants’ back yard. While the man missing part of his arm stood under the carport, the other man went through the Sturdi-vants’ back yard and walked “up on [Heather’s] back patio.” He then went back through the back yard, through the storage room, and ended up back with his companion under the carport.

¶ 6. Heather heard their truck start. She thought they were leaving. She waited for them to drive by on their way off her property, but she did not see them. Heather concluded that they must have driven to the shed behind her home because she could not see them. They eventually left.

¶ 7. All the while, Heather had a cordless phone. She first called her husband, David Sturdivant, and then called 911. David arrived home first. Deputy Jim Moore of the Leake County Sheriffs Department arrived after David. By that time, the two men were gone. Heather and David discovered that they were missing a Black and Decker drill, a “couple of chainsaws,” a weedeater, a full gas can, a climbing stand used for hunting deer, a deer feeder, a target, and a deer “rattling horn.” Heather also noticed that her cell phone was missing from her Chevrolet Suburban.

¶ 8. On June 17th, Mark Wilcher, a criminal investigator with the Leake County Sheriffs Department, became involved with the ease. Heather described the two men and the pickup. She described the pickup as a small “squared-off’ “tanish” S-10 model pickup. However, Heather was not sure exactly who manufactured the pickup. As a result, Detective Wilcher looked for “an S-10 or a Ranger or a small Dodge pickup that was squared off.” Detective Wilcher never developed a lead from Heather’s description of the pickup.

¶ 9. The Sturdivant home is near the border of Scott County. Detective Wil-cher contacted the Forest Police Department and spoke with Police Chief Mike Lee. After describing the two men, they developed a suspect — Jason Page, an amputee. Page was brought in for questioning. Page also gave a statement and implicated Raymond Moore.

PROCEDURAL HISTORY

¶ 10. On October 31, 2005, the Leake County grand jury returned an indictment against Raymond L. Moore and charged Moore with burglary of a storage shed in violation of Mississippi Code Annotated § 97-17-33. Moore pled not guilty.

¶ 11. Moore’s trial commenced on January 11, 2006. The prosecution called Heather Sturdivant, Detective Wilcher, and Jason Page. Heather testified regarding the events of June 15. Detective Moore testified regarding his investigation and that it led to Page.

¶ 12. At the time of Moore’s trial, Page had pled guilty to burglary at the Sturdi-vant home. The Leake County Circuit Court sentenced Page to a three year sentence with one year suspended. That suspended year was conditional to Page’s truthful testimony at Moore’s trial.

¶ 13. Page testified that, on June 15, 2005, he and Raymond Moore went to the Tuscola community to visit his brother-in-law. Moore drove. Page did not know in whose pickup they traveled. He only knew that Moore supplied the pickup. When they arrived at Page’s brother-in-law’s house, no one was there. Page and Moore decided to return in the direction of Scott County. They stopped at the Sturdi-vant home.

¶ 14. Page testified that it was Moore’s idea to stop at the Sturdivant home. By Page’s description, Moore wanted to get some gas because his tank was nearly empty. Page corroborated Heather’s version of events. Page described how he rang the doorbell and knocked on the door. According to Page, while he knocked on the doors, Moore was at the Sturdivant’s shed. Page also testified that he went back to the truck to smoke a cigarette and that he left Moore under the Sturdivants’ carport for “approximately five to ten minutes.” Afterwards, they “just loaded up the stuff.” When asked what they “loaded up,” Page answered, “[a] chainsaw, a wee-deater and some kind of like hunting stand.” Page also testified that they took a “gas jug.”

¶ 15. According to Page, one of his responsibilities was to sell the things they took. He testified that, on the morning of June 16, he sold the weedeater and the chainsaw for sixty dollars. Page said he and Moore used the money to buy crack.

¶ 16. Page did not notice a drill among the things he and Moore took from the Sturdivant home. However, he testified that, “approximately two weeks later” Moore brought him a drill. Page sold that drill for twenty-five dollars. Again, he and Moore bought crack with the proceeds. The prosecution rested after Page testified.

¶ 17. After an unsuccessful motion for a directed verdict, Moore testified on his own behalf. Moore testified that he was not with Page on June 15 and that he did not take part in burglarizing the Sturdi-vant shed. According to Moore, he did not have a tan pickup and he never borrowed one from anyone. Moore claimed that he was home alone on June 15 and that he waited on his mother to get off work at 3:00 p.m. so he could use her car to see his girlfriend. Moore also claimed that Page implicated him in the burglary because Page was covering for someone else. After Moore testified, he called his mother, Vickie Treat. Treat’s testimony was very brief. She merely testified that she once saw Page and his girlfriend hitchhiking and that, at Moore’s request, she gave them a ride. The prosecution did not cross-examine Treat. Afterwards, Moore rested.

¶ 18. The prosecution did not present any rebuttal evidence. After deliberation, the jury found Moore guilty. Two days later, the circuit court sentenced Moore to seven years in the custody of the Mississippi Department of Corrections.

¶ 19. On the very day that Moore was sentenced, he filed a motion for new trial “or other relief.” That same day, the circuit court overruled Moore’s motion. Aggrieved, Moore appeals.

ANALYSIS

I. THE COURT ERRED IN SUSTAINING THE PROSECUTION’S OBJECTIONS TO APPELLANT’S CROSS-EXAMINATION OF JAMES BRYANT PAGE ABOUT DANNY RAY WHITE.

¶ 20. During cross-examination of Detective Wilcher, Moore’s attorney gave Detective Wilcher two photographs and asked Detective Wilcher whether he recognized those photographs as pictures of a man named Danny Ray White. Detective Wilcher testified that an unnamed Forest Police Officer had seen White with Page a few days prior to speaking with Detective Wilcher. Detective Wilcher also testified that White was, at one time, a “person of interest.”

¶ 21. On redirect, the prosecution asked Detective Wilcher whether he investigated White. Detective Wilcher responded that he talked to Page before he could locate White and that, based on discussions with Page, White was eliminated as a suspect. On recross, Detective Wilcher testified that he never spoke to White because “there was no reason to” speak to him.

¶ 22. During direct examination of Page, the prosecution asked Page whether he knew White. Page testified that White was a friend of his and that White was not with him on June 15. On cross-examination, the following exchange occurred:

Q. And how long have you known Danny Ray White?
A. Since I was a kid.
Q. And — uh—I believe you told me that Danny Ray White right now is to your knowledge in the custody of the state of Mississippi?
A. No, sir, I didn’t tell you that.
Q. Okay. Where is he to the best of your knowledge?
BY MR. BROOKS: Your Honor, we object to the relevancy of that? [sic]
A. I don’t know.
BY THE COURT: He said he didn’t know.
Q. You don’t know where he is?
A. No, sir.
Q. Do you remember telling me you thought he had been taken somewhere over to Jackson?
A. No, sir.
Q. This morning—
A. —I didn’t tell you that.
Q. This very morning, you deny that?
BY THE COURT: Now Mr. Collins, what’s—
A. No, sir.
BY THE COURT: Young fellow, when I start talking let me finish my talking. When he makes — someone objects, you let me answer it. What’s the relevancy of this?
BY MR. COLLINS: This was a suspect in the case. Uh — the officer’s testified he never questioned him and I would proffer to the Court that this witness told me this morning he was in custody in Jackson.
BY THE COURT: I’m going to sustain the objection. I don’t think it’s relevant at all.

¶23. Moore alleges that the circuit court erred when it prohibited his continued cross-examination. Moore claims his questions as to White’s whereabouts “were certainly relevant to the issue of the identity of Page’s accomplice.” Further, Moore submits that he “should have been allowed free range to cross-examine Page about White ... particularly in light of the fact that Page was the only witness identifying [Moore] as Page’s accomplice.” Moore concludes that, “[n]ot only was the Court’s ruling error, but it was likely particularly damaging.”

¶ 24. We review issues regarding the admission or exclusion of evidence under our familiar abuse of discretion standard. Burton v. State, 875 So.2d 1120(¶ 6) (Miss.Ct.App.2004). We will find an abuse of discretion where a defendant shows clear prejudice resulting from an undue lack of constraint on the prosecution or undue constraint on the defense. Id In other words, we will not disturb the trial court’s decision unless it is clearly wrong. Id.

¶25. Presumably, Moore’s intent was to counteract Page’s testimony that he and Moore burglarized the Sturdivants’ storage shed. By casting blame towards White, Moore hoped to show that Page covered for White and wrongfully named Moore as his companion in the June 15th burglary. The prosecution objected when Moore’s attorney asked Page whether he knew where White was. Though testimony continued for a brief period after the prosecution objected, the entire exchange at issue was centered on White’s whereabouts. Page remained adamant that he did not know where White was and that he did not tell counsel for Moore that White was in some form of custody in Jackson.

¶ 26. Though we are not required to examine the exchange in the light most favorable to Moore, even viewing the prohibited testimony in that light, the excluded testimony at issue is irrelevant. “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. Broadly speaking, the ultimate determination is whether Moore burglarized the Sturdivant’s storage shed. Granted, if there was only one person, save Page, who burglarized the Sturdi-vants’ storage shed, and it was not Moore, that would tend to make it less probable that Moore was guilty.

¶ 27. However, Page merely cast a shadow of speculation in suggesting it was White, rather than himself, who was with Page on June 15. Page testified that he and Moore burglarized the Sturdivants. Page denied that White was with him. The excluded testimony was in regards to White’s location as of the time of trial. White’s whereabouts as of January 11, 2006, does not make it less probable that Moore and Page burglarized the Sturdi-vants’ storage shed on June 15, 2005. Accordingly, the excluded testimony was irrelevant and the circuit court got it exactly right.

II. THE COURT ERRED IN REFUSING TO PERMIT APPELLANT TO CROSS EXAMINE JAMES BRYANT PAGE, THE PRIMARY PROSECUTION WITNESS ABOUT PAGES UNCONVICTED CRIMES THAT REFLECTED BADLY ON HIS CREDIBILITY.

¶ 28. Moore’s second issue also stems from his cross-examination of Page. We detailed the standard of review in Moore’s first issue. There is no need to repeat it here.

¶ 29. Moore attempted to ask Page about charges pending against Page. The prosecution objected. Outside of the presence of the jury, the circuit court stated that it would allow cross-examination regarding those pending charges if those charges were, for some reason, pending in consideration of Page’s testimony against Moore.

¶ 30. Counsel for Moore responded that “[his] argument — uh—would be that it goes again to — to his character for truthfulness and veracity would be my point in — in the other charges.” The circuit court stated that it would not allow cross-examination regarding those pending charges for purposes of impeaching Moore’s credibility. The circuit court then reiterated that it would allow further cross-examination if Page’s favorable testimony would somehow affect the outcome of those pending charges. When counsel for Page stated that those charges were in no way related to his testimony against Moore and that the charges were pending in another jurisdiction, the circuit court sustained the prosecution’s objection.

¶ 31. On appeal, Moore claims that the circuit court erred. Moore submits that cross-examination of Page regarding his pending charges was permissible pursuant to M.R.E. 608(b). According to Moore, M.R.E. 608(b) “permits cross-examination for impeachment purposes about unconvicted criminal acts committed by the witness where the subject of the cross examination bears on the credibility of the witness.” Moore adds, “[t]he pending charges were proffered by [his] counsel to reflect on Page’s character for truthfulness.” Moore concludes, “[t]he Trial Court thus refused to let [him] inquire into Page’s prediliction [sic] toward committing crimes that reflected badly on his credibility.”

¶ 32. We disagree. Pursuant to M.R.E. 608(b):

Specific instances of the conduct of a witness, for the purpose of attacking ... his credibility, other than conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative or truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness ....

Moore sought to show that, because Page had some unnamed and otherwise undeveloped unrelated pending charges, it was likely that he was lying about Moore’s involvement in the June 15th burglary.

¶ 33. That Page had some unmentioned and unrelated charges pending is not, in and of itself, probative of untruthfulness. Simply having been charged with some crime, without more, does not make it more likely that a witness is lying. See, e.g., Ellis v. State, 856 So.2d 561(¶ 12) (Miss.Ct.App.2003). Based on the facts and the record before us, we cannot say that the circuit court abused its discretion when it sustained the prosecution’s objection.

III. THE COURT ERRED IN DENYING APPELLANT’S MOTION FOR A DIRECTED VERDICT, IN REFUSING APPELLANT’S REQUEST FOR A PEREMPTORY INSTRUCTION AND IN DENYING APPELLANT’S MOTION FOR A NEW TRIAL. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 34. Moore claims that the verdict was against the weight and sufficiency of the evidence because the indictment only accused him of burglary of the storage shed and there was no testimony that he or Page either burglarized the shed or that items were taken from or missing from it.

¶35. Moore failed to preserve this issue. “Motions for a directed verdict must be specific and not general in nature.” King v. State, 897 So.2d 981(¶ 39) (Miss.Ct.App.2004) “A motion for a directed verdict on the grounds that the state has failed to make a prima facie case must state specifically wherein the state has failed to make out a prima facie case.” Id. “In the absence of such specificity, the trial court will not be put in error for overruling the same.” Id.

¶ 36. After the State rested, Moore’s counsel stated:

The motion’s for a directed verdict, your Honor. We would argue that considering the evidence offered by the State of Mississippi in the light most favorable to the State of Mississippi that the State has wholly failed to meet its burden of proof, that this evidence should be excluded and a verdict of not guilty should be directed for the defendant.

In Moore’s motion for new trial “or other relief,” Moore did not request a JNOV. Moore merely argued that the circuit court should have granted his motion for directed verdict at the conclusion of the State’s case-in-chief. Additionally, Moore’s motion for new trial stated, “the verdict of the Jury in this case was against the overwhelming weight of the evidence presented and was contrary to law.” Moore’s brief, generalized, and conclusory argument failed to distinguish any particular deficiency in the proof, or to assert how the verdict is contrary to the overwhelming weight of the evidence. Accordingly, this issue is procedurally barred. Beckum v. State, 917 So.2d 808(¶ 15) (Miss.Ct.App.2005).

¶ 37. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A STORAGE SHED AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

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


author: ISHEE, J.,

text:
    Derrick POSS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00370-COA.
    Court of Appeals of Mississippi.
    March 20, 2007.
    Rehearing Denied June 26, 2007.

      Derrick Poss, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Derrick Poss pleaded guilty in the Lee County Circuit Court to armed robbery and was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections, with fifteen years to serve, five years on post-release supervision, and five years suspended at the close of successful post-release supervision. He filed a petition for post-conviction relief in the circuit court, which was summarily denied. He appeals, asserting that his plea was involuntary. Finding that the circuit court did not err, we affirm.

ISSUES AND ANALYSIS

¶ 2. This Court will not reverse a trial court’s denial of post-conviction relief on appeal unless the trial court was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (Miss.Ct.App.2002).

¶ 3. Poss’s argument is that his counsel erroneously informed him, off the record, that he would be eligible for parole after serving twenty-five percent of his sentence. No affidavit was attached to his pleadings showing how he would prove this fact. Poss attached a letter from his attorney stating that the attorney’s knowledge is that the exact release date is determined by the Mississippi Department of Corrections.

¶ 4. Where erroneous legal advice on sentencing has been given to a defendant by his counsel, no error attaches if the record affirmatively shows the defendant was correctly advised of his peril by the sentencing court. Roland v. State, 666 So.2d 747, 750 (Miss.1995). In some cases, however, mistaken advice from counsel can vitiate a guilty plea. Gardner v. State, 531 So.2d 805, 809 (Miss.1988). Having viewed the record of the sentencing hearing, it is clear in this case that Poss was thoroughly questioned and fully advised of his potential sentence by the trial court. Therefore, this issue is without merit.

¶ 5. While the only issue Poss specifically addressed in his appeal before this Court is whether his plea was voluntary, we may review pro se arguments for any self-evident errors for which authority would be unnecessary. Kellar v. Mississippi Empl. Sec. Comm’n, 756 So.2d 840, 842(¶ 6) (Miss.Ct.App.2000). Since Poss’s claim of erroneous advice as to parole is connected to ineffective assistance of counsel, it is conceivable Poss sought to raise that issue as well, so this Court will address its merits.

¶ 6. The test for ineffective assistance of counsel is well known and requires a showing of deficiency in the performance of counsel and prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Stringer v. State, 454 So.2d 468, 476-77 (Miss.1984). The letter from Poss’s attorney suggests that there was no deficiency in performance. As the letter explicitly states, an experienced attorney wisely advises a defendant to look to the Mississippi Department of Corrections to determine his release date. However, even if we were to assume a deficiency in performance, which we do not, any possible prejudice was cured when the circuit court advised Poss of the potential minimum and maximum sentences. Donnelly v. State, 841 So.2d 207, 211(¶ 7) (Miss.Ct.App.2003). Therefore, there can be no showing of ineffective assistance of counsel.

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

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


author: LEE, P.J.,

text:
    ADOLPHE LAFONT USA, INC., Legion Insurance Company and the Mississippi Guaranty Association, Appellants v. Earmie AYERS, Appellee.
    No. 2006-WC-01681-COA.
    Court of Appeals of Mississippi.
    June 12, 2007.

      Robert L. Grant, attorney for appellants.
    John Hunter Stevens, attorney for ap-pellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   LEE, P.J.,

for the Court.

FACTS

¶ 1. Earmie Ayers was awarded workers’ compensation benefits after stepping in a hole at Adolphe Lafont, a garment factory in Crystal Springs. Ayers claimed that when she stepped in the hole her weight shifted injuring her back. The injury occurred on November 1, 2001, while Ayers was employed with Adolphe as a bundler. Her job duties included pulling heavy bundles of garments and also some drilling work.

¶ 2. Ayers, a fifty-four year old resident of Crystal Springs, Mississippi, went to work at Adolphe in August 1999 and continued working after her injury until a general layoff due to downsizing of the company in September 2002. Before the layoff, Ayers missed work occasionally to go to the chiropractor after stepping in the hole. After being laid off, she received unemployment benefits for six months. Ayers graduated from high school and has worked in convenience stores and factories mostly in positions which required standing eight hours a day. She claims that before stepping in the hole she had no prior back problems. She stated that after stepping in the hole her back pain progressively got worse from pushing, pulling, and carrying heavy bundles of clothes.

¶ 3. Ayers began seeing Dr. Mitchell Myers for her back pain. He treated her •with various analgesics and non-steroidal anti-inflammatory drugs without benefit. An MRI scan revealed an L5-S1 disc protrusion. She saw a chiropractor and went to physical therapy but saw little improvement. When Ayers returned to Dr. Myers’s office again with back pain, he determined that it was appropriate to refer her to a neurosurgeon. Dr. Adam Lewis performed surgery on her back on March 19, 2003. In a letter dated October 6, 2004, Dr. Lewis stated to a reasonable degree of medical probability that Ayers would be restricted in her ability to lift objects weighing more than twenty-five pounds, she would be restricted in her ability to stand for periods of time exceeding two hours, she would be restricted in her ability to sit for periods of time exceeding two to three hours, and she would be restricted in her ability to bend and/or stoop. Dr. Lewis recommended that she avoid repetitive bending and stooping. He assigned her a twelve percent permanent partial medical impairment rating to the body as a whole.

PROCEDURAL HISTORY

¶ 4. Ayers filed a petition to controvert with the Mississippi Workers’ Compensation Commission against Adolphe and Legion Insurance Company. Adolphe disputed the benefits, claiming that her back pain was not the result of an on-the-job injury. A hearing was held on October 11, 2004, before an administrative law judge (ALJ). On April 11, 2005, the ALJ ordered that Adolphe and Legion Insurance Company pay temporary total disability benefits in the amount of $166.68 a week for two years and permanent total disability benefits of $166.68 a week for the 450 weeks following the two year period. Adolphe and Legion Insurance appealed, and the Commission affirmed the decision of the ALJ on December 21, 2005, but with amendments. One of the amendments corrected a misstatement in the ALJ’s opinion, and the other struck the award of temporary total disability benefits. The Commission found that since Ayers was found to be permanently and totally disabled, she was not entitled to an additional award of temporary total disability benefits. On August 31, 2006, the Circuit Court of Copiah County affirmed the amended order of the Commission.

¶ 5. Adolphe Lafont and Legion Insurance now appeal to this Court asserting the following issues: (1) the Commission erred in finding that Ayers provided sufficient and credible evidence of an injury in the course and scope of her employment; (2) the Commission erred in basing its decision on the deposition testimony of Dr. Adam Lewis, whose opinions lacked credibility and were based upon incorrect assumptions as to Ayers’s job requirements; (3) Ayers failed to give actual notice of the injury to the employer within thirty days as required under Mississippi Code Annotated Section 71-3-35; (4) the Commission erred in holding that there was sufficient evidence presented at the hearing to show that Ayers had sustained a total loss of wage earning capacity; and (5) the Commission erred in applying the presumption that Ayers had made a claim for a total loss of wage earning capacity due to her inability to return to her former job with the employer.

¶ 6. Finding that the Commission’s decision was supported by substantial evidence, we affirm.

STANDARD OF REVIEW

¶ 7. The standard for appellate review of workers’ compensation claims is limited. It is well settled that “the Commission is the ultimate fact-finder.” Hardin’s Bakeries v. Harrell, 566 So.2d 1261, 1264 (Miss.1990). Our review is limited to a “determination of whether or not the decision of the commission is supported by the substantial evidence.” McCarty Farms, Inc. v. Banks, 773 So.2d 380, 386-87(¶ 23) (Miss.Ct.App.2000) (quoting Delta CMI v. Speck, 586 So.2d 768, 772-73 (Miss.1991)). “This Court will overturn a Commission decision only for an error of law or an unsupportable finding of fact.” Cook v. President Casino, 740 So.2d 963, 966(¶ 16) (Miss.Ct.App.1999) (citation omitted).

DISCUSSION

I. DID THE COMMISSION ERR IN FINDING THAT AYERS PROVIDED SUFFICIENT AND CREDIBLE EVIDENCE OF AN INJURY IN THE COURSE AND SCOPE OF HER EMPLOYMENT?

¶ 8. Adolphe argues that the Commission’s decision was not supported by substantial evidence. Adolphe’s main source of contention throughout this case has been that Ayers’s back pain was not the result of an injury during the course and scope of her employment. The Commission affirmed the following finding by the ALJ:

Claimant presented as a credible and compelling witness with a good past work history. Also other testimony presented lent credence to the claimant’s version of events when she was injured falling in a hole present on the concrete workplace floor. Claimant’s treating physician, Dr. Adam Lewis found a causal connection between the workplace injury and her current condition.

Adolphe argues that the only evidence of the accident was Ayers’s own testimony which was contradicted and unreliable. We And nothing in Ayers’s testimony that is contradictory or “unreasonable to the point of unbelievability” as Adolphe claims. We find the ALJ’s statement that Ayers was a credible and compelling witness to be supported by substantial evidence. Adolphe points to the testimony of Ayers’s supervisor who stated that he first became aware of the injury in December 2002— over a year from the date of the accident— and that no record existed of the accident. However, witnesses for the company did not deny that Ayers told them of an accident but stated that they could not remember. Also, witnesses for the company testified that the floors in the plant were cracked and that someone could fall.

¶ 9. Adolphe also argues that Ayers was untruthful about pre-existing back problems. The complaints of lower back pain Adolphe refers to were from doctor’s visits in October 1989, November 2000, and February 2001. No evidence was presented to show that this was the same pain as after the accident or that any prior back pain restricted her ability to work. In fact, Ayers had lower back pain in the past, but the medical affidavits showed that no radiation, no leg symptoms, and no similar problems occurred until after the injury. Another assertion by Adolphe is that the reason Ayers was unable to continue working was more attributable to a quadruple bypass she underwent than to the back pain. However, no medical evidence was presented that she had any disabling problems or permanent restrictions as a result of her heart surgery. Adolphe further alleges that the filing of the claim was a result of a dispute between Ayers and her supervisor over working conditions rather than a work-related injury. We cannot give this assertion any weight as no evidence was presented regarding a dispute or hard feelings between Ayers and her supervisor.

¶ 10. We find that the Commission had substantial evidence to support its finding that Ayers was injured in the course and scope of her employment, and, thus, this issue is without merit.

II. DID THE COMMISSION ERR IN RELYING ON THE DEPOSITION TESTIMONY OF DR. ADAM LEWIS?

¶ 11. Adolphe argues that the Commission erred in basing its decision on the deposition testimony of Dr. Lewis because his opinions lacked credibility and were based upon incorrect assumptions as to Ayers’s job requirements given to him by Dr. Myers, the initial referring physician. Dr. Lewis successfully performed an anterior lumbar fusion at the L5-S1 level on Ayers. Adolphe asserts that Dr. Lewis’s deposition testimony was vague and his opinions were not given with a reasonable degree of medical probability. We cannot find Dr. Lewis’s testimony to be vague or lacking in medical probability. Dr. Lewis found a causal connection between the workplace injury and Ayers’s back condition. Upon being questioned about whether Ayers’s back problems were work related, Dr. Lewis stated in his deposition:

Well, the evidence that the patient was working at, according to Dr. Myers’s letter of November 12th, 2002, was doing a fair amount of heavy lifting and bending and stooping. And if she had a degenerated disc at that time, it would have made her prone to an annular tear and to an injury of protrusion of the low back.

Adolphe claims in its brief that Ayers’s job involved no lifting or stooping, and thus Dr. Lewis based his opinions on incorrect assumptions. However, we cannot give weight to Adolphe’s argument that Ayers did no strenuous activities such as lifting and stooping. Witnesses for Adolphe stated at the hearing, and Adolphe argues to this Court in other sections of its brief, that “no light” duty positions were available at the Crystal Springs plant while Ayers was employed there; every position involved some type of physical exertion, some less than others. We cannot find the argument that Ayers did no strenuous work credible when Adolphe bases many of its other arguments on the claim that it had no light duty positions at the plant. ¶ 12. We find this issue without merit.

III. DID THE COMMISSION ERR IN FINDING THAT AYERS GAVE PROPER NOTICE TO ADOLPHE OF HER INJURY?

¶ 13. Mississippi Code Annotated Section 71-3-35(1) (Rev.2000) requires that the employer receive actual notice within thirty days after the occurrence of an injury. However, “[ajbsence of notice shall not bar recovery if it is found that the employer had knowledge of the injury and was not prejudiced by the employee’s failure to give notice.” Miss.Code Ann. § 71-3-35(1). Adolphe argues that Ayers failed to give notice of the injury within thirty days, and it was not until December 2002 when the company found out that she was injured. In addition, Adolphe argues that it was prejudiced because it was unable to control costs of care or document whether the care was reasonable or necessary.

¶ 14. Adolphe called three witnesses in support of its argument that Ayers did not give notice of her injury to the company. Heyward Hodges, president of Adolphe, testified that no report of an injury was prepared or filed, and that it was not until December 2002 when the claim was being filed that the company was made aware of the injury. Martha Jones, the plant manager, also testified that she was not made aware of the injury until December 2002. However, she also testified that “[Ayers] could have mentioned falling in a hole. I just can’t say for sure that she did.” Jackie Smitherman, the cutting room manager and Ayers’s immediate supervisor, testified that he was not made aware of the injury until December 2002. He stated that he knew Ayers was seeing a chiropractor and that the concrete floor in the plant was cracked due to age and deterioration. In conclusion he stated, “I cannot say for sure whether she told me about stepping in a hole or not.”

¶ 15. While no uncontradicted testimony was presented that Ayers told her supervisor or employer of the injury, no clear proof was presented that she failed to tell them. The plant manager and her supervisor both admitted that they could not remember whether Ayers told them about stepping in a hole. Her supervisor testified that he knew Ayers was visiting a chiropractor for back pain.

¶ 16. This Court will reverse an order of the Commission only where such order is clearly erroneous and contrary to the overwhelming weight of the evidence. Siemens Energy & Automation, Inc. v. Pickens, 732 So.2d 276, 286(¶ 41) (Miss.Ct.App.1999). This Court “will not go behind the fact finding body, ‘even though that evidence would not convince us were we the fact finders.’ ” Id. (citing South Cent. Bell Tel. Co. v. Aden, 474 So.2d 584, 589-90 (Miss.1985)). Further, our supreme court has stated many times that “[d]oubtful cases should be resolved in favor of compensation, so as to fulfill the beneficial purposes of the statute.” Miller Transporters, Inc. v. Guthrie, 554 So.2d 917, 918 (Miss.1989). Given that the Commission is the ultimate fact-finder, we must defer to the Commission’s finding that Ayers was a credible witness. Substantial evidence existed to support the Commission’s determination that even if Ayers did not notify her employer directly within thirty days, she is not barred from recovery because the employer had sufficient notice of the injury and was not prejudiced.

¶ 17. This issue is without merit.

IV. DID THE COMMISSION ERR IN HOLDING THAT THERE WAS SUFFICIENT EVIDENCE PRESENTED AT THE HEARING TO SHOW THAT AYERS HAD SUSTAINED A TOTAL LOSS OF WAGE EARNING CAPACITY?

¶ 18. Adolphe argues that Ayers retained some ability to earn wages and, thus, should not have been awarded permanent and total disability. We find that the Commission’s holding that Ayers sustained a total loss of wage earning capacity is supported by substantial evidence. In order to be deemed permanently totally disabled under Section 71-3-17(a) (Rev.2000), a claimant must show something more than an inability to return to the job existing at the time of injury. McCray v. Key Constructors, Inc., 803 So.2d 1199, 1203(¶ 17) (Miss.Ct.App.2000). To demonstrate total disability, the claimant must show that he has made a diligent effort, but without success, to obtain other gainful employment. Id. The law is clear that once the claimant has made a prima facie case of total disability, the burden shifts to the employer to show that the employee’s efforts were not reasonable or constituted a mere sham. Siemens Energy, 732 So.2d at 283-84(¶ 30).

¶ 19. The ALJ found sufficient evidence that the job search efforts undertaken by Ayers were reasonable and not a mere sham. Ayers made inquiries into thirty to forty jobs, filling out applications where available. After reasonable efforts, she was unable to find employment. Adolphe argues that Ayers’s “back problem, even if found to be work related, does not prevent the Claimant from pursuing some measure of gainful employment, even if that employment only earns minimum wage.” Adolphe’s argument has no merit as several of the positions for which Ayers’s applied were minimum wage jobs. We find that substantial evidence existed to support a finding that Ayers sustained a total loss of wage earning capacity.

¶ 20. Adolphe next argues that Ayers’s heart condition should have been taken into consideration and the benefits should have been apportioned accordingly between the back pain and the heart condition. The basis for this argument seems to be that Ayers filed for Social Security disability benefits shortly after her heart failure and her application was based both on the back injury and heart failure. The fact that her Social Security application included heart problems is not dispositive proof that her workers’ compensation benefits should be reduced. Workers’ compensation benefits are reduced proportionately only where a pre-existing physical handicap or disease is shown by medical findings to be a “material contributing factor in the results following injury.” Miss. Code Ann. § 71-3-7 (Rev.2000). No medical evidence was presented that her heart problems were a “material contributing factor” to her permanent restrictions as to lifting, standing, or sitting. We find Adolphe’s argument concerning apportionment and Ayers’s wage earning capacity to be without merit.

V. DID THE COMMISSION ERR IN APPLYING THE PRESUMPTION THAT AYERS HAD MADE A CLAIM FOR A TOTAL LOSS OF WAGE EARNING CAPACITY DUE TO HER INABILITY TO RETURN TO HER FORMER JOB WITH THE EMPLOYER?

¶ 21. In its final issue on appeal, Adolphe argues that the ALJ assumed that since Ayers was not offered a light duty position by Adolphe that she is presumed disabled. A reading of the ALJ’s decision, affirmed by the Commission, does not support this argument. In addition to stating that Adolphe had no light duty positions available, the ALJ stated that “[t]he assignment by Dr. Lewis and the attendant permanent restrictions would prohibit any return to the positions the claimant occupied in the past.” The ALJ also stated that Ayers’s “job search efforts were sufficient to be deemed ‘reasonable’ and not a ‘mere sham’ and were proven to be unsuccessful as no one offered the claimant a job.” Given that the Commission based its finding of total loss of wage earning capacity on substantial evidence, we find this issue without merit.

¶ 22. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF TUTS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


text:
    David Ray JONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KM-00844-COA.
    Court of Appeals of Mississippi.
    June 19, 2007.

      James B. Everett, Decatur, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. David Ray Jones appeals the judgment of the Newton County Circuit Court affirming his conviction in the Newton County Justice Court for driving under the influence of intoxicating liquor in violation of Mississippi Code Annotated section 63-11 — 30(l)(a) (Rev.2004), careless driving in violation of Mississippi Code Annotated section 63-3-1213 (Rev.2004), and driving without a seatbelt under Mississippi Code Annotated section 63-2-1 (Rev.2004). Because this was Jones’ second DUI conviction occurring within five years, he was sentenced under Mississippi Code Annotated section 63-ll-30(2)(b) (Rev.2004) to serve one year in the Newton County jail and to pay a $1,500 fine. Jones was also fined $121 for careless driving and $35 for driving without a seatbelt. On appeal, Jones asserts that the judgment was against the overwhelming weight of the evidence due to the fact that the circuit court considered as substantive evidence of guilt (1) Jones’ flight from the traffic stop, (2) statements made by the city prosecutor during his cross-examination and the cross-examination of a defense witness, and (3) impeachment testimony. Finding the issues raised by Jones to be procedurally barred and finding that the judgment is supported by substantial evidence, we affirm Jones’ convictions for second offense DUI, careless driving, and driving without a seatbelt.

STATEMENT OF THE FACTS

¶ 2. On the evening of November 24, 2006, Mississippi Highway Patrolman Kevin Bently was patrolling a section of Interstate 20, located just east of Newton. At approximately 8:30 p.m., Bently observed a vehicle traveling west at an unusually slow rate of speed. Bently pulled out from his position on the median onto the interstate and followed the vehicle. Bently immediately noticed that the vehicle he followed was straddling the solid white line separating the ’driving lane from the emergency lane, traveling at a speed between twenty-five and thirty miles per hour. The maximum speed limit on that stretch of interstate is seventy miles per hour and the minimum is forty miles per hour. After observing the vehicle for a few moments, Bently proceeded to perform a traffic stop. However, the vehicle did not immediately pull over for another quarter mile before finally stopping near the Shiloh overpass.

¶ 3. At trial, Bently testified once that as he exited his patrol car, the driver, later identified as David Ray Jones, also exited his vehicle. Bently testified that as Jones exited his vehicle, he observed him sway against his car and steady himself with his hand. Bently also noticed that Jones had not been wearing a seatbelt and that he was talking on a cell phone. Bently approached Jones and asked why Jones had continued driving for more than a quarter mile after Bently turned on his lights and siren. Jones replied, and later testified, that he did not see the lights or hear the siren because he was talking on his cell phone. Jones further explained to Bently, and later testified, that he was running out of gas and was attempting to call a friend to bring gas to him. Bently then asked Jones for his driver license, which Jones was unable to produce because he failed to renew his license after it was suspended pursuant to his first DUI conviction on October 3, 2002. However, Jones did provide Bently with his name, date of birth, and Social Security number. Jones continued to talk on his cell phone while providing this information to Bently, despite being repeatedly told by Bently that he needed Jones’ full attention. Bently further testified that as he spoke with Jones he detected the smell of an “intoxicating beverage” coming from Jones’ clothing or breath. Bently testified, after being designated by the circuit court as an expert in determining a person’s level of intoxication, that it was his opinion that Jones was intoxicated at the time he was stopped.

¶ 4. While Bently was questioning Jones, Jones repeatedly indicated that he needed to go to the bathroom. Bently told Jones to step to the shoulder of the road and relieve himself of the need. Jones stepped toward the shoulder of the road, and according to Bently’s testimony, Jones then broke and ran toward the overpass. He did not return. Bently testified that he did not give chase because there was a minor, Jones’ thirteen-year-old nephew, in the passenger’s seat of Jones’ vehicle and he felt that it would not be in the child’s best interest to leave him unsupervised on the side of the interstate. Jones testified that he did not run, but walked over to the overpass, where a friend, Alvin Willis, was to deliver the needed gas. Jones further testified that Bently never told him to stop or that he could not leave. According to Jones, he waited at the overpass for his friend to arrive with the gas, and as he did, he observed a tow-truck loading up his car. Jones claims that he then decided not to return to the scene of the traffic stop because he feared being arrested for driving with a suspended license. He claims not to have ingested any alcoholic beverages on the day in question and that his “flight” had nothing to do with a fear of being arrested for DUI. Jones’ nephew also testified that Jones had not been drinking on the day in question and when questioned about his prior inconsistent statements to Bently, denied ever saying that Jones had been drinking. Bently, who had already testified as the prosecution’s witness, was then called as a rebuttal witness to impeach the nephew’s credibility. Bently testified that while he and Jones’ nephew waited on the side of the interstate for a tow truck to arrive, the nephew told him that Jones had been drinking earlier that day.

¶ 5. The circuit court judge heard testimony from Bently, Jones, Jones’ nephew, and Willis, and determined that the affir-mance or reversal of Jones’ convictions hinged on the issue of credibility. The circuit judge then ruled from the bench that, under the totality of the circumstances and after weighing all the evidence, the testimony of Bently was simply more credible than the testimony offered by Jones, Jones’ nephew, and Willis. He found the testimony that Jones had driven his car down the interstate more than a quarter of a mile while straddling the white line separating the driving lanes from the emergency lane at a speed below the minimum speed limit sufficient to find Jones guilty of careless driving. Further, he found Bently’s testimony that Jones had not been wearing a seatbelt sufficient to support the seatbelt violation. Finally, he found Bently’s opinion that Jones was intoxicated, the fact that Jones testified that he did not see the patrolman’s lights nor hear his siren, the statement by Jones’ nephew to Bently that Jones had been drinking, and Jones’ flight as indicia pointing to guilt, and affirmed the DUI conviction.

DISCUSSION

¶ 6. When determining whether a verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict. Herring v. State, 691 So.2d 948, 957 (Miss.1997). Reversal is warranted only when we are convinced that the circuit court has abused its discretion and that allowing the verdict to stand would sanction an unconscionable injustice. Id. Our review of the record makes clear that the circuit judge specifically asked the attorneys to provide the law concerning flight, and that Jones’ attorney failed to do so. Further, Jones’ counsel failed to raise any objection to the prosecutor’s questions concerning statements made by Jones’ nephew and Jones during the Newton County Justice Court trial. Jones’ counsel also failed to raise any objection to Bently’s impeachment testimony. Finally, Jones failed to raise any of the issues he complains of on appeal in his motion for a directed verdict or new trial. As a general rule, a litigant cannot raise issues for the first time on appeal because the trial judge had no opportunity to deal with the issue at the trial level. Crowder v. State, 850 So.2d 199, 200(¶ 5) (Miss.Ct.App.2003).

¶ 7. Our role as an appellate court is to determine whether the trial judge correctly ruled on an issue put before the court. Where the issue was not raised with the trial judge, there can be no resulting error to deal with at the appellate level. Id. Accordingly, the issues raised by Jones are procedurally barred. Furthermore, the facts of this case, when viewed in the light most favorable to the verdict, provide sufficient evidence to convict Jones of second offense DUI, careless driving, and driving without a seatbelt. We find that the verdict was not against the overwhelming weight of the evidence, and, thereby, affirm.

¶ 8. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT OF CONVICTIONS OF DUI-SECOND OFFENSE, SEATBELT VIOLATION AND CARELESS DRIVING AND SENTENCES OF ONE YEAR IN THE NEWTON COUNTY JAIL AND A $1,500 FINE FOR DUI-SECOND OFFENSE, $35 FINE FOR SEATBELT VIOLATION AND $121 FINE FOR CARELESS DRIVING IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: CHANDLER, J.,

text:
    Nancy Jill HOLMES, Appellant v. Mike Manning HOLMES, Appellee.
    No. 2005-CA-01711-COA.
    Court of Appeals of Mississippi.
    June 26, 2007.

      Renee M. Porter, attorney for appellant.
    Jose Benjamin Simo, attorney for appel-lee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. The former wife appeals from the decision of a chancellor to modify child custody. She alleges that the lower court used an incorrect standard of law in reaching a decision to award custody of the son, a minor, to his father. Finding no error, we affirm.

FACTS

¶ 2. Nancy Jill Holmes and Mike Manning Holmes were married on February 4, 1984. Two children were born during the marriage, C.M.H. on May 9, 1990, and J.L.H. on February 22, 1995. Jill is a school teacher in McComb, Mississippi, and Mike is self-employed as a contractor. The couple separated on May 3, 2003. Mike filed for divorce on June 2, 2003, alleging grounds of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences.

¶ 3. A temporary order was entered on August 8, 2003, in which Mike and Jill agreed to share legal custody of the two minor children, with Jill having primary physical custody. The order provided, among other things, a visitation schedule for the parties and directed both parents to obtain a psychological evaluation within forty-five days from the date of the order. On August 26, 2003, Mike filed a motion to amend the temporary order, asking that the visitation schedule set forth in the order be amended and that the parties’ rights with respect to visitation be made more specific. An order was entered September 17, 2003, amending the original temporary order by changing the visitation schedule and prohibiting both parties from interfering with the other’s pick-up and return of the children.

¶ 4. On March 1, 2004, the chancery court entered a judgment of divorce for Mike on the grounds of habitual cruel and inhuman treatment and stated that both parents would share legal custody of the minor children, with Jill having primary physical custody. After the divorce, Mike and Jill continued to have a relationship, including a sexual relationship. Two years later, on April 20, 2005, Jill filed a complaint for modification of judgment seeking to have Mike’s visitation terminated or, in the alternative, asking the court to award limited supervised visitation. Jill alleged that there had been a material change in circumstances which adversely affected the minor children since the original judgment was entered and that it was in the best interest of the children for Mike’s visitation to be terminated.

¶ 5. In her complaint, Jill asserted that Mike abused alcohol and illegal drugs, had tested positive for marijuana with the Walthall County Department of Human Services, that both of the children’s grades had dropped since spending more time with their father, that the children did not like Mike’s new girlfriend and had found the girlfriend’s underwear in Mike’s home, and that Mike had driven the children while intoxicated, which resulted in Mike being stopped by the police.

¶ 6. On June 3, 2005, Chancellor Debra K. Halford, chancellor for the Fourth Chancery Court District, recused herself from the case and transferred the cause to the Pike County Court, and Pike County Court Judge John Price was appointed as the presiding judge.

¶ 7. Mike filed an answer and defenses to Jill’s complaint on June 3, 2005, and asserted a counter-claim. Mike asked that a guardian ad litem (GAL) be appointed for the children and asked the court to restrain Jill from harassing him. Mike also alleged that a material change in circumstances had occurred which adversely affected the children, in that Jill had displayed violent behavior toward the children, especially the minor son, C.M.H. He asked the court to order Jill to undergo further psychiatric evaluation. C.M.H., by this time a fifteen-year old, filed an election stating that he preferred to live with his father and that he and his mother did not get along.

¶ 8. An order was entered on June 15, 2004, appointing the Honorable John Price, judge of and for the County Court of Pike County, as special judge to preside over the case. On July 25, 2005, the case was transferred from the Pike County Court to the Chancery Court of Pike County with Judge Price presiding.

¶ 9. After conducting a hearing in which both sides presented witnesses and evidence, the court entered an order modifying the original child custody arrangement on August 2, 2005. The court changed physical custody of C.M.H. from Jill to Mike. The minor daughter, J.L.H., remained in the primary physical custody of Jill. A new visitation schedule was also arranged, ensuring that the children would be together on the weekends and alternate between parents. The court stated that it would revisit the situation in a few months to assess the modification.

¶ 10. On December 19, 2005, the custody arrangement was reviewed and the court upheld its determination. Jill then filed an appeal from the chancery court’s ruling.

STANDARD OF REVIEW

¶ 11. This Court adheres to a limited and well-settled standard of review in child custody cases. M.C.M.J. v. C.E.J., 715 So.2d 774, 776(¶ 10) (Miss.1998). In order to reverse, the chancellor’s custody decision must have applied an incorrect legal standard or have been manifestly wrong or clearly erroneous. Id. We “will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996).

LAW AND ANALYSIS

I. WHETHER THE COURT ERRED BY APPLYING AN INCORRECT LEGAL STANDARD FOR CHILD CUSTODY MODIFICATION.

¶ 12. Jill argues that the trial court erred by modifying the existing child custody order without making a specific finding of a material change in circumstances that adversely affected C.M.H. and that the change would be in his best interest.

¶ 13. We have consistently held that in child custody cases, even in modification cases, the polestar consideration is the best interest of the child. Hollon v. Hollon, 784 So.2d 943, 946(¶ 12) (Miss.2001). In arriving at a custody arrangement that is in the child’s best interest, the chancellor should apply the factors from Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). However, the Albright factors need not be reviewed exhaustively in custody modification proceedings. Saveli v. Morrison, 929 So.2d 414, 417(¶ 8) (Miss.Ct.App.2006).

¶ 14. When determining whether to modify a previous child custody order, the chancellor must “determine if there has been a material change in circumstances since the award of initial custody which has adversely affected the child and which, in the best interest of the child, requires a change in custody.” Sanford v. Arinder, 800 So.2d 1267, 1271(15) (Miss.Ct.App.2001). The material change in circumstances must occur subsequent to the original decree that adversely affects the welfare of the child. Lambert v. Lambert, 872 So.2d 679, 684 (¶ 21) (Miss.Ct.App.2003). A material change in circumstances must be such that it could not have been anticipated at the time of the original determination of custody and of “such magnitude as to justify that drastic measure of change in custody.” Id. “While numerous factors may go into the initial consideration of a custody award, only parental behavior that poses a clear danger to the child’s mental or emotional health can justify a custody change.” Id. at 684(¶ 22). Further, this Court considers all testimony regarding factors of the child’s best interest. E.J.M. v. A.J.M., 846 So.2d 289, 293(¶ 12) (Miss.Ct.App.2003).

¶ 15. Jill argues that the court made its finding based solely on C.M.H.’s election to live with Mike. Jill asserts that C.M.H.’s election merely states that he and his mother do not get along and that he is fifteen years old. Alone, these statements are not enough to constitute a material change in circumstances that adversely affect the child’s best interests. Franklin v. Kroush, 622 So.2d 1256, 1257 (Miss.1993) (holding that friction between a child and custodial parent is not a material change warranting a change in custody). Section 93-11-65 of the Mississippi Code Annotated (Rev.2006) permits a child who has reached the age of twelve years to express a preference as to which parent the child desires to live with when custody disputes are presented to the chancery courts of our state for resolution. This election of preference is not outcome determinative of the issue. Rather, the chancellor must consider the child’s preference when assessing what is in the best interest of the child. Best v. Hinton, 838 So.2d 306, 308(¶ 5) (Miss.Ct.App.2002) (citing Westbrook v. Oglesbee, 606 So.2d 1142, 1147 (Miss.1992)).

¶ 16. We disagree with Jill’s assessment of the lower court’s findings. While the Court did cite the election as a factor in its determination of the modification, the lower court also considered the GAL report and various testimony from both parties.

¶ 17. The trial court specifically referenced Jill’s mental health assessment by a licensed psychiatrist and the report from the GAL as heavily influencing his decision. Dr. Patricia Brawley, the psychologist assigned to this case, testified that she became involved with the case through a court order in which the judge ordered Mike and Jill to undergo counseling for the purpose of improving their communication. She stated that she felt the communication therapy was a failure due to Jill’s inability to stay on topic. She also diagnosed Jill with borderline personality disorder and was concerned about Jill’s high potential for violence. Dr. Brawley stated that, given the right situation, Jill could be a danger to herself or others. For instance, Jill made threats against Mike after their divorce, acted violently towards her son, and had been involved in violent altercations with Mike during their marriage. Dr. Brawley agreed with the GAL’s report that Jill’s conduct and relationship with C.M.H. were “suffocating.”

¶ 18. Although we usually determine that a material change in circumstances has occurred based on evidence that has a present adverse effect on the child, this Court has found that “in limited circumstances[,] adverse effects exist if it is shown that it is reasonably foreseeable that the child will suffer adverse effects because the child’s present custodial environment is clearly detrimental to his or her well being.” Savell v. Morrison, 929 So.2d 414, 418-19(¶ 13) (Miss.Ct.App.2006) (citing Johnson v. Gray, 859 So.2d 1006(¶ 39) (Miss.2003)). Likewise, the child does not have to suffer actual injury before a court can find an adverse effect. Id.

¶ 19. Joe Fernald, the GAL, testified that the testimony presented during the hearing by both parties made him more sure of his initial recommendations, among which was that C.M.H. should live with his father. In his report, Fernald found that C.M.H. and his sister were “at serious risk for emotional damage that will have far reaching effect [sic].” Fernald stated that despite his prohibition to the parties from speaking about his report, Jill nonetheless spoke with C.M.H. about it. From his interview with C.M.H., Jill, and C.M.H.’s sister, Fernald concluded that Jill had a very controlling relationship with C.M.H. and that Jill accentuated only negative aspects regarding her son. Because the current living environment was stressful and emotionally destructive for C.M.H., Fernald recommended that Mike be given physical custody of C.M.H. Regarding the GAL report, we note that the GAL’s recommendations are not binding on the chancellor, but they must be considered. Ethridge v. Ethridge, 926 So.2d 264, 267(¶ 13) (Miss.Ct.App.2006).

¶ 20. Thomas Gonsalves, who provided mental health counseling to C.M.H., also testified that C.M.H. suffered from an extremely detrimental relationship with his mother. When C.M.H. would return from visiting his father, Jill would relentlessly quiz him about who was at Mike’s house, what occurred and also question him about Mike’s new girlfriend. Gonsalves stated that C.M.H. relayed an incident where Jill slapped the boy because he refused to answer questions about his latest visit with his father. Gonsalves diagnosed C.M.H. with acute adjustment disorder with depression and anxiety primarily caused by the difficulty in his relationship with his mother. In his opinion, it was in C.M.H.’s best interest to live with his father.

¶21. Jill states that C.M.H. did not articulate any reasonable, compelling, or sound reasons in his election for why he thought the change of custody was in his best interest. C.M.H.’s testimony contradicts Jill’s assertion. He stated that on one occasion when he and Jill were engaged in an argument that she pushed him out of the door and told him to go live with his father. Jill had also slapped C.M.H. in the face, causing his glasses to fall off. On more than one occasion, Jill took C.M.H. and his sister in the car and followed Mike in the middle of the night to spy on him. This is supported by Dr. Gonsalves, who conducted a mental health evaluation of C.M.H. Dr. Gonsalves noted in his report that C.M.H. complained of Jill taking the children at all hours of the night to spy on Mike and determine his whereabouts. Dr. Gonsalves also noted that because of the constant bickering and negative attitude displayed by Jill toward his father, C.M.H. exhibited “fatalistic” and sullen behavior.

¶ 22. Jill also claims that the lower court did not address the separation of the children or provide a justification for such a separation. Jill is correct that Mississippi law favors keeping siblings intact in the same household. Sellers v. Sellers, 638 So.2d 481, 484 (Miss.1994) (“in the absence of some unusual and compelling circumstance dictating otherwise, it is not in the best interest of children to be separated.”). However, in its order, the lower court noted that it considered any detrimental effect the division would have had on the two siblings. And, as we discussed above, the trial court did provide sufficient findings that it was in C.M.H.’s best interest that he be removed from his mother’s primary physical custody.

¶23. We have consistently expressed that the chancellor, “by his presence in the courtroom, was best equipped to listen to witnesses, observe their demeanor, and determine the credibility of those witnesses and what weight ought to be ascribed to the evidence given by those witnesses.” Rogers v. Morin, 791 So.2d 815, 826(¶ 39) (Miss.2001) (quoting Carter v. Carter, 735 So.2d 1109, 1114(¶ 19) (Miss.Ct.App.1999)). As substantial evidence supported the chancellor’s decision and the decision was not manifestly erroneous, we do not find error. Accordingly, we affirm the lower court’s decision to modify the custody decree.

¶ 24. THE JUDGMENT OF THE CHANCERY COURT OF PIKE COUNTY MODIFYING PHYSICAL CUSTODY OF MINOR SON FROM THE MOTHER TO THE FATHER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: NABERS, Chief Justice.

text:
    MILLER PROPERTIES, LLC v. Jacquelyn A. GREEN and Oscar C. Anez.
    1041148.
    Supreme Court of Alabama.
    Nov. 17, 2006.
    James G. Curenton, Jr., Fairhope, for appellant.
    John T. Bender of McFadden, Lyon & Rouse, LLC, Mobile, for appellees.
   NABERS, Chief Justice.

On November 24, 1998, Miller Properties, LLC, executed a mortgage in favor of Merrill Lynch Credit Corporation on a parcel of property located at 10 Burlington Drive, Fairhope (“the property”), as security for a loan. The mortgage was subsequently assigned to State Street Bank and Trust Company.

Miller Properties thereafter defaulted on the loan. Accordingly, State Street Bank and Trust foreclosed on the property and, on May 21, 2002, sold the property at a foreclosure auction to Oscar C. Anez. Anez subsequently sold the property to Jacquelyn A. Green.

On October 22, 2002, Miller Properties filed a “complaint for redemption” in the Baldwin Circuit Court seeking to exercise its right to redeem the property pursuant to § 6-5-248, Aa.Code 1975. The complaint listed both Anez and Green as defendants. On October 31, 2003, the trial court conducted a nonjury trial on Miller Properties’ redemption complaint. On November 6, 2003, the trial court entered a judgment in favor of Miller Properties, holding that it was entitled to redeem the property for $57,823.97. The trial court accordingly gave Miller Properties until November 10, 2003, to redeem the property. However, Miller Properties failed to complete the redemption within the time set by the court, even after the trial court extended the deadline to November 28, 2003.

Anez and Green filed a motion asking the court to order Miller Properties to show cause why it should not be held in contempt for failing to redeem the property by the court-ordered deadline. Anez and Green also asked the court to enter an amended order denying Miller Properties the right to redeem the property because it had failed to meet the deadlines set by the court. On January 13, 2004, the trial court conducted a hearing on the motion. Following the hearing, the trial court entered an order stating that Miller Properties had “until Friday, 1/16/04, at 5PM to redeem the property or lose that right.” Miller Properties failed to redeem the property by that deadline.

On October 19, 2004, approximately nine months after the trial court’s last order, Miller Properties filed a motion asking the trial court to set aside the foreclosure deed that purported to convey the property to Anez on the basis that both the published notice of foreclosure and the foreclosure deed mistakenly identified the defaulting mortgagor as “Miller Enterprises, LLC” instead of “Miller Properties, LLC.” Anez and Green opposed the motion, arguing that Miller Properties had made this same argument during the October 2003 trial and that the trial court had ruled against it. Accordingly, Anez and Green argued, the argument was now barred by the doctrine of res judicata. After hearing oral argument on the issue, the trial court denied without explanation Miller Properties’ motion to set aside the foreclosure deed.

Miller Properties now appeals. Anez and Green have moved this Court to dismiss the appeal as untimely, arguing that a final judgment was entered in the case on January 13, 2004, and that Miller Properties’ notice of appeal, filed on May 3, 2005, was therefore filed outside the 42-day period for taking an appeal. See Rule 4(a), Ala. R.App. P. (“[T]he notice of appeal ... shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from_”). We grant the motion and dismiss the appeal.

In Ex parte Wharfhouse Restaurant & Oyster Bar, Inc., 796 So.2d 316, 320 (Ala.2001), this Court stated:

“A final judgment that will support an appeal is one that puts an end to the proceedings between the parties to a case and leaves nothing for further adjudication. See City of Birmingham v. City of Fairfield, 396 So.2d 692 (Ala.1981). ‘A judgment need no longer be phrased in formal language nor bear particular words of adjudication. It is sufficient if it is signed or initialed by the trial court and, in considering the entire record, it evidences an intention to adjudicate and the substance of adjudication.’ Dudley v. State Dep’t of Human Res., 555 So.2d 1121, 1121 (Ala.Civ.App.1989) (citing Rule 58(c), Ala. R. Civ. P., and Purnell v. Covington County Bd. of Educ., 519 So.2d 560 (Ala.Civ.App.1987)).”

In the present case, the trial court’s January 13, 2004, order left “nothing for further adjudication.” 796 So.2d at 320. Miller Properties’ complaint included only one claim — seeking redemption of the property. The trial court’s order clearly stated that Miller Properties would lose its right to redeem the property if it did not complete the redemption by January 16, 2004. When Miller Properties failed to complete the redemption by that date, it lost its right to redeem the property pursuant to the express terms of the trial court’s order. Because Miller Properties’ only claim was resolved by the trial court’s January 13, 2004, order, there was nothing else for the court to consider, and the matter was final.

Miller Properties had 30 days from the date of the January 13, 2004, order to file a motion to alter, amend, or vacate the trial court’s judgment pursuant to Rule 59(e), Ala. R. Civ. P. Such a motion would have tolled the time for taking an appeal. However, Miller Properties did not file any postjudgment motion until October 19, 2004, when it moved the trial court to set aside the foreclosure deed. Because that motion was filed more than 30 days after the final judgment was entered, it was untimely and of no effect. “Although a timely postjudgment motion will toll the 42-day time period for filing a notice of appeal, an untimely filed postjudgment motion will not do so.” Marsh v. Marsh, 852 So.2d 161, 163 (Ala.Civ.App.2002).

Because this Court has no jurisdiction over an untimely filed appeal, see Rule 2(a)(1), Ala. R.App. P., Anez and Green’s motion to dismiss is granted, and the appeal is dismissed.

APPEAL DISMISSED.

SEE, HARWOOD, STUART, and BOLIN, JJ., concur.


author: PER CURIAM.

text:
    Ex parte Circuit Judge Anita L. KELLY, Circuit Judge Patricia D. Warner, and Circuit Judge John L. Capell (In re Ex parte Ronda Allegra Daniel (In re Ronda Allegra Daniel v. Gerald Douglass Daniel, Jr.)).
    1051252.
    Supreme Court of Alabama.
    Nov. 17, 2006.
    Judge John L. Capell III and Judge Patricia D. Warner, for petitioners.
    Submitted on petitioners’ brief only.
   PER CURIAM.

On April 25, 2006, Ronda Allegra Daniel filed a petition for the writ of mandamus in the Court of Civil Appeals. That court, on May 23, 2006, issued an order granting Daniel’s petition and directing the circuit court to withdraw its order of March 29, 2006. A petition for the writ of certiorari was filed in this Court to review the decision of the Court of Civil Appeals. The petition for the writ of certiorari is denied. The petition does not provide sufficient factual allegations for this Court to ascertain, on preliminary consideration, whether there is any probability of merit in the petition. See Rules 39(d)(5)(C) and 39(k), Ala. R.App. P.; see also generally State v. Lewis, 907 So.2d 1020 (Ala.2005). Our denial of the petition should not be construed as approving the issuance of the writ of mandamus by the Court of Civil Appeals. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

NABERS, C.J., and LYONS, WOODALL, SMITH, and PARKER, JJ., concur.