author: BARNES, J., for the Court:

text:
    Anthony LAFAYETTE, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00064-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.
    Rehearing Denied Oct. 11, 2011.

      Stan Perkins, Greenville, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   BARNES, J., for the Court:

¶ 1. In the early morning hours of October 20, 2007, Earnest Booth died from a gunshot wound that he suffered during an altercation at a local dance club in Benoit, Mississippi. Anthony Lafayette was charged with Booth’s murder and was convicted of manslaughter by a Bolivar County Circuit Court jury. The circuit court sentenced Lafayette to eighteen years in the custody of the Mississippi Department of Corrections (MDOC). After the circuit court denied Lafayette’s motion for a judgment notwithstanding the verdict (JNOV), or in the alternative, for a new trial, he appealed his conviction. Finding no reversible error, we affirm the circuit court’s judgment.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Shortly after 1:00 a.m. on October 20, 2007, Lafayette was at Club Checkers in Benoit, Mississippi, mingling with some friends. Lafayette was standing on the crowded dance floor of the club when he and another man bumped into one another. Some heated words were exchanged, and Booth, who apparently was acquainted with the other man, became involved in the altercation. According to Lafayette and his brother who was with him, Booth pulled his shirt up, revealing a handgun in his waistband. Feeling threatened, Lafayette produced a .9-millimeter Highpoint semi-automatic handgun and shot into the air twice. Patrons of the club immediately scattered and headed toward the exit. Timothy Mayes, the club’s security guard, was working at the front door when he heard the two shots from the back of the club. Since the club was extremely busy, it took Mayes a minute or so to maneuver through the crowd and reach the dance floor located at the back of the club. Mayes observed Lafayette and Booth standing on the dance floor and Lafayette holding a .9-millimeter handgun. Mayes, along with the club bartender, Ronald Christian, talked to Lafayette and tried to get him to leave the club peacefully. When Mayes and Christian turned back toward the front door to escort Lafayette outside, both men heard a single shot. Upon turning, they saw Booth lying on the floor, with a gunshot wound to the face. Lafayette quickly exited the club, leaving his gun. Mayes retrieved Lafayette’s .9-millimeter Highpoint handgun and a .40-caliber pistol that apparently fell from Booth’s pocket or waistband.

¶ 3. After receiving a call regarding the shooting, Officer Charles Gilmer of the Bolivar County Sheriffs Department arrived at the club and found that two Benoit police officers had already secured the scene. Officer Gilmer saw Booth lying on the dance floor, dead from a gunshot to the face. Officer Gilmer noted that the club was in disarray with tables turned over and several unspent rounds of ammunition and a shell casing lying on the floor. All of the ammunition retrieved from the crime scene was for a .9-millimeter handgun. Both guns that Mayes retrieved were turned over to the police. Later evidence showed that Lafayette had bought his .9-millimeter Highpoint handgun from a local pawn shop, along with two rounds of ammunition. Additionally, a .9-millimeter Ruger handgun was also found by Officer Gilmer on a sitting rail outside the club.

¶ 4. Although Lafayette had gone home immediately after the shooting, he contacted the police later that morning and stated that he wanted to surrender to authorities. After being read his rights and submitting a statement, Lafayette was arrested. On March 3, 2008, Lafayette was indicted for depraved-heart murder by a Bolivar County grand jury. After a jury trial, Lafayette was convicted of the lesser offense of manslaughter on October 28, 2009. At a hearing on December 17, 2009, Lafayette was sentenced to eighteen years in the custody of the MDOC. Lafayette filed a motion for a JNOV or, in the alternative, for a new trial. The circuit court denied the motion, and Lafayette timely filed his notice of appeal. Finding that Lafayette’s assignments of error are without merit, we affirm the judgment of the circuit court.

DISCUSSION

I. Whether the circuit court erred by refusing Lafayette’s peremptory jury instruction in part or in whole.

¶ 5. At the close of the trial, defense counsel renewed its motion for a directed verdict and filed a peremptory instruction, both of which the circuit court denied. Lafayette now argues that the circuit court should have granted his peremptory instruction as the State failed to prove the necessary elements of murder. In the alternative, Lafayette claims that the judge should have reduced the charge against Lafayette to manslaughter as the evidence did not support a verdict of murder.

¶ 6. “The standard of review of the denial of a request for a peremptory jury instruction is the same as that for the denial of a motion for a directed verdict.” McMillan v. State, 6 So.3d 444, 447 (¶ 12) (Miss.Ct.App.2009) (citing Baker v. State, 802 So.2d 77, 81 (¶ 13) (Miss.2001)). If the evidence is sufficient to support the denial of the peremptory instruction when viewing all the evidence in a light more favorable to the State, the circuit court’s decision will be affirmed. Id. “Reversal can only occur when the facts point in favor of the defendant such that reasonable men could not have found, beyond a reasonable doubt, the defendant was guilty.” Sneed v. State, 31 So.3d 33, 40 (¶ 20) (Miss.Ct. App.2009) (citing Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)).

¶ 7. We find that there was sufficient evidence to support the verdict and the denial of Lafayette’s peremptory instruction. Both Mayes and Christian testified that they saw Lafayette standing near Booth prior to the shooting and that Lafayette was holding a gun. The evidence showed that Lafayette had been engaged in a heated exchange with Booth prior to the shooting and that Lafayette’s gun matched the type of ammunition found at the crime scene and the type of ammunition that killed Booth. Further, Dr. Stephen Hayne, who performed the autopsy on Booth, noted that his examination revealed that Booth had been shot at close range. Lastly, Lafayette quickly left the scene after the shooting.

¶ 8. In the alternative, Lafayette also claims that the circuit court should have reduced the charge against him from murder to manslaughter. He cites the court’s sua sponte decision to include an instruction for the lesser charge as evidence that the judge “believe[d] the alleged crime was manslaughter.” The supreme court has stated: “Whether a homicide is classified as a murder or manslaughter is ordinarily an inquiry to be made by the jury.” Moore v. State, 52 So.3d 339, 347 (¶32) (Miss.2010) (quoting Hodge v. State, 823 So.2d 1162, 1166 (¶ 16) (Miss.2002)). The jury was given instructions for both murder and manslaughter and determined that Lafayette was guilty of manslaughter, not murder.

¶ 9. Based on the evidence, we find that a rational trier of fact could find the elements of manslaughter existed beyond a reasonable doubt. As the evidence was sufficient to support the verdict, we find no error in the circuit court’s denial of Lafayette’s peremptory instruction. This issue is without merit.

II. Whether the circuit court erred in denying jury instructions D-4 and D-7.

¶ 10. Lafayette contends that it was error for the circuit court to deny jury instructions D-4 and D-7. “In reviewing the grant or denial of jury instructions, this Court considers the instructions as a whole and within context.” Ruffin v. State, 992 So.2d 1165, 1176 (¶ 33) (Miss. 2008) (citing Strickland v. State, 980 So.2d 908, 922 (¶ 24) (Miss.2008)). A court may deny a jury instruction if it “incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id.

¶ 11. Jury instruction D-4 states:

The Court instructs the jury that under the law, the term reasonable doubt as used by the Court in these instructions to the jury as the law in the trial of criminal cases, is a sacred and substantial right of this defendant, ANTHONY LAFAYETTE, who is charged with the crime of murder. The requirement of law that the [Sjtate must prove the defendant’s guilt beyond a reasonable doubt is a right given and guaranteed unto him by the laws of the State of Mississippi and the United States of America and you as jurors are bound by that law. You are accordingly instructed that if a reasonable doubt of the guilt of the defendant arises in your mind from the evidence, or from the lack of evidence, or from an insufficiency of the evidence, or from a conflict in the evidence, or from the credibility of a material witness, then under the law, it is the sworn duty of each such member of the jury, who has such a reasonable doubt in their mind as to the guilt of the defendant, to return a verdict of Not Guilty.

The circuit judge’s denial of this jury instruction was based on his finding that the instruction attempted to define the term “reasonable doubt.” Mississippi courts have a “long-standing rule” that any attempt to define “reasonable doubt” for a jury is improper since “reasonable doubt defines itself.” Colburn v. State, 990 So.2d 206, 217 (¶ 35) (Miss.Ct.App.2008) (citing Martin v. State, 854 So.2d 1004, 1009 (¶ 12) (Miss.2008)). Moreover, in Staten v. State, 989 So.2d 938, 950 (¶ 35) (Miss.Ct. App.2008), we found that language similar to the language contained in jury instruction D^4 — “that reasonable doubt could arise from the evidence, from a lack of evidence, from a conflict in the evidence, from insufficiency of the evidence, from an application of the law to the evidence, or from the credibility of a material witness” — was found to be an improper attempt to define “reasonable doubt.” (Citing Jones v. State, 912 So.2d 501, 506-07 (¶¶ 18-19) (Miss.Ct.App.2005)). Additionally, the State’s burden of proof was covered adequately in the other instructions submitted to the jury.

¶ 12. The second jury instruction that Lafayette claims was improperly denied is jury instruction D-7, which states:

The Court instructs the jury that the defendant is not required to prove that he shot the deceased in self-defense, but the State is required to prove beyond all reasonable doubt that the defendant did not shoot the deceased in self-defense, real or apparent, and unless the State has proven beyond a reasonable doubt that the defendant did not shoot the deceased in self-defense, then you must find the defendant ANTHONY LAFAYETTE not guilty. .

The circuit court denied this jury instruction as being repetitious. Lafayette argues that the circuit judge should have granted this instruction regarding the State’s burden of proof regarding self-defense as it was not “covered fairly in the other instructions.”

¶ 13. We find no error in the court’s denial of jury instruction D-7. Jury instruction S-l, which was given to the jury at trial, states:

The Defendant, ANTHONY LAFAYETTE, has been charged by an indictment with the crime of murder.
If you believe from the evidence in this case beyond a reasonable doubt that:
1. On or about October 20, 2007, Earnest Booth was a living person, and
2. the defendant, ANTHONY LAFAYETTE, did unlawfully, wilfully and feloniously, without authority of law, kill Earnest Booth, and
3. that he did so while in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless' of human life, although done without any premeditated design to effect the death of Earnest Booth, and
4. said shooting was not in necessary self-defense, then you shall find the defendant guilty of murder.
If the State has failed to prove any one or more of the above elements beyond a reasonable doubt, then you shall find the defendant not guilty of murder.

(Emphasis added). Furthermore, jury instruction S-6, the State’s instruction detailing the elements for a verdict of manslaughter, said that if the State failed to prove that the shooting of Booth was “not in necessary self-defense .... beyond a reasonable doubt,” then the jury “shall find the. defendant not guilty” of manslaughter. These instructions sufficiently established the appropriate elements and burden of proof for the jury, rendering jury instruction D-7 repetitious. This issue is without merit.

III. Whether the circuit court committed reversible error by adding language to its Sharplin instruction.

¶ 14. To enable a circuit court to better address the issue of a hung jury, the Mississippi Supreme Court, in Sharp-lin v. State, 330 So.2d 591, 596 (Miss.1976), approved a specific instruction to be given to a jury to assist it with further deliberations, without prejudice to the defendant. This Sharplin instruction is to be given by the judge when he or she determines there is a likelihood that the jury may not reach a verdict. This instruction is as follows:

I know that it is possible for honest men and women to have honest different opinions about the facts of a case, but, if it is possible to reconcile your differences of opinion and decide this case, then you should do so.
Accordingly, I remind you that the court originally instructed you that the verdict of the jury must represent the considered judgment of each juror. It is your duty as jurors to consult with one another and to deliberate in view of reaching agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous, but do not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Please continue your deliberations.

iSharplin, 330 So.2d at 596.

¶ 15. Lafayette claims that the circuit judge deviated from the “precise language” of Sharplin and made improper comments prior to sending the jury back for further deliberations. In the present case, the jury returned to the courtroom after some deliberations and advised the circuit judge that it was unable to reach a unanimous verdict. The circuit judge stated:

Well, speaking to all of you, let me say that if there is any ray of hope, any slight chance of your reaching a unanimous decision, the law compels, it requires you to do so. If you are unable to succeed in doing that, that’s not the end of the day. Certainly not the end of the case. We will call back another jury that hopefully will be reasonable and fair, and one that can be successful in reaching a decision. I hope not to put the County and the State to the expense if I can get around it. But if you tell me you’re hopelessly deadlocked, I will accept your decision.

(Emphasis added). The jury then informed the circuit judge that the vote count was ten/two, although the judge instructed the jury not to disclose any further details. Several jurors expressed that a unanimous decision might not be possible. The circuit judge then had the following bench discussion with the State and defense counsel:

BY THE COURT: Okay. Do you want them to continue or not?
BY [DEFENSE COUNSEL]: I’m not sure.
BY [STATE]: It’s up to you. It’s just either side, they said ten and two one way or the other, and two of them said they can reach a decision.
BY THE COURT: And in thinking about this, some of them may join in.
BY [STATE]: Your Honor, I don’t know necessarily that they would. They can talk about it a little bit longer.

After this discourse, the circuit judge gave the jury the Sharplin instruction as follows:

The Court realizes that it is possible for honest men and women to have honest different opinions about the facts of a case. But if it is at all possible to reconcile your differences of opinion and decide the case, then you should do so. Accordingly, I remind you that the court originally instructed you that the verdict of the jury must represent considered judgment of each juror.
It is your duty as jurors to consult with one another and to deliberate in view of reaching agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors.
In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you think, if you’re convinced it is erroneous. Meaning, if you think it is wrong. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the sole purpose of returning a verdict.
You are hereby instructed to please continue with your deliberations. I don’t know of anything else to say to you because I don’t know how you’re divided. I don’t know what the problematic point is. But, in addition, if you’re looking at all of the instructions as a whole, if you’re uncertain about any particular thing, you can always fall back on that part of your instructions that say, use your good common sense and your sound honest judgment.

The jury then returned for further deliberations. It was not until after the jury had left the courtroom to deliberate that counsel for Lafayette made a motion for a mistrial. The circuit court agreed with defense counsel that the jury appeared deadlocked, but the judge stated that it was standard practice to send a jury back at least once. The circuit judge further stated that if the jury returned a second time without a unanimous decision, he would grant a mistrial. After a short recess, the circuit judge had the bailiff knock on the door of the jury room and ask if the jury was making any progress toward a unanimous decision. The jury responded affirmatively, and a short time later, the jury returned with a unanimous verdict, finding Lafayette guilty of manslaughter.

¶ 16. We agree with Lafayette that the circuit court’s comments, which can be interpreted as implying that the jury was not being “reasonable and fair” and that failure to reach a decision would “put the County and the State to ... expense,” were not appropriate. However, although defense counsel made a motion for a mistrial after the jury had left the courtroom “based on what happened and the, the fact that the jurors indicated they’re hopelessly deadlocked,” Lafayette failed to object contemporaneously to the comments. Furthermore, this issue was not brought in Lafayette’s motion for a JNOV or for a new trial. Therefore, this issue is waived on appeal. See Williams v. State, 40 So.3d 630, 636 (Miss.Ct.App.2010) (defendant’s failure “to contemporaneously object” to comments made by the circuit court prior to giving a Sharplin instruction “waived th[e] issue for purposes of appellate review”) (citing Ahmad v. State, 603 So.2d 843, 846-47 (Miss.1992)). Notwithstanding the procedural bar, we find that the circuit judge’s comments, in this instance, combined with the Sharplin instruction, which was subsequently given, do not constitute reversible error.

¶ 17. The Mississippi Supreme Court has “repeatedly reversed where our circuit courts have practiced verdict coercion in excess of that allowed in Sharplin.” Folk v. State, 576 So.2d 1243, 1251 (Miss.1991). In Folk, the jury was unable to reach a verdict as one juror stated that she could not vote “not guilty” based upon her religious views. Rather than giving a Sharp-lin instruction, the judge asked the juror, more than once, if she could consider the views of the other jurors. She refused to change her stance, and he removed her from the jury. The supreme court held:

It is common knowledge that jurors carefully attend the trial judge’s every action. His position of authority, respect and neutrality give him peculiar power to influence. The principle is settled that he do nothing that would favor one party or the other or intimate a view how the case ought be decided. In the case at bar, the circuit judge, in the presence of the entire jury, inquired of juror Wilson whether she would consider the views of her fellow jurors but made no comparable specific inquest whether the other jurors would consider juror Wilson’s views. The judge’s conduct and remarks, as set forth in the course of proceedings noted above, almost certainly conveyed to one or more of the jurors who remained the substantial impression that the judge desired a guilty verdict. Sharplin charts a far safer course where such circumstances arise.

Folk, 576 So.2d at 1251 (citations omitted). The supreme court found that the trial judge’s conduct was error and remanded the case.

¶ 18. Further, in Brantley v. State, 610 So.2d 1139, 1141 (Miss.1992), after the jury had twice informed the court that it was deadlocked, the trial judge stated the following in pertinent part:

In the meantime, I’m going to ask you to seriously listen to and consider the views of all the other 11 jurors.... I think it’s going to take some considerable time for you to maturely and soberly review the testimony of each witness, the significance and impact of that testimony, its weight and credibility with you. And the same mental processes must be applied to each exhibit offered and received into evidence, its significance and impact on your mind on this case. So I’m going to ask you to continue your deliberations, to listen to each others views, consider all the testimony and the exhibits, and see if you can reach a unanimous agreement.
As I said yesterday, all the persons involved in presenting the case to you have worked a long, long time to get this case ready to present to a jury and so I’m going to ask for some more of your time in considering the matter and see whether you can reach a unanimous agreement.

However, the circuit court failed to give a formal Sharplin instruction, and defense counsel promptly moved for a mistrial based on the judge’s comments. The motion was denied. In determining that the trial judge’s actions were “clear error,” the supreme court quoted its previous holding in Edlin v. State, 528 So.2d 42, 44 (Miss. 1988): “The trial judge in this case departed from the unambiguous procedure outlined in Sharplin!,] and this departure constitutes reversible error.” Brantley, 610 So.2d at 1142. “We cannot conclude with confidence that the judge’s spontaneous charge did not taint the jury and indeed, under the facts of this case, such arguments seem unlikely.” Id. at 1143.

¶ 19. However, in Williams v. State, 868 So.2d 846 (Miss.Ct.App.2003), which involved similar circumstances to those in the present case, this Court stated that although the issue was waived for failure to object, the circuit court’s remarks did not constitute reversible error. After the jury in Williams reported that it was deadlocked, the circuit court made a remark regarding the amount of work that went into the trial. Id. at 352-53 (¶ 19). We stated that, while it would have been preferable for the comment not to have been made, the circuit court proceeded with a formal Sharplin instruction to the jury, and nothing indicated that the jury did not follow such instruction. “We do not think the court’s verbal remarks that preceded a correct instruction so tainted the jury in its work as to render its subsequent verdict so suspect that we ought to reverse.” Id. at 353.

¶ 20. The outcome of the Sharplin cases are based on each one’s particular set of facts. In Folk and Brantley, the judges’ comments warranted reversal, especially as there was no Sharplin instruction given. Here, as in Williams, the judge made improper remarks but then gave the jury the formal Sharplin instruction. As we stated in Williams, this Court does not support or condone such extraneous remarks. However, the circuit judge did give a formal Sharplin instruction, which included an admonition not to “surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the sole purpose of returning a verdict.” We have no reason to believe that the jury did not follow the instruction. This issue lacks merit.

IV. Whether the circuit court failed to instruct the jury properly regarding prior inconsistent statements given by Mayes.

¶ 21. “Prior inconsistent, out-of-court statements made by a nonparty witness are not admissible as substantive evidence.” DeHenre v. State, 43 So.3d 407, 419 (¶ 57) (Miss.2010) (citing Moffett v. State, 456 So.2d 714, 719 (Miss.1984)). However, “[u]nsworn prior inconsistent statements of a witness may be used to impeach the witness’s credibility.” Lynch v. State, 24 So.3d 1043, 1047 (¶ 15) (Miss. Ct.App.2010) (citing M.R.E. 613(b)).

¶ 22. At trial, the club’s security guard, Mayes, said that he did not see Lafayette shoot Booth. To impeach Mayes’s testimony, the State introduced recordings of Mayes’s prior statements to the police, which indicated that Mayes witnessed Lafayette shoot Booth. Lafayette claims on appeal that the circuit court “failed to properly explain to the jury that the tapes [of Mayes’s statements to the police] could not be used to convict the Defendant.” During deliberations, the jury asked to listen to the tapes of Mayes’s statements that had been played at trial. The circuit court instructed the jury that the tapes were used for “impeachment (contradictory) purposes only” and were not “admitted into evidence.”

¶ 23. As there was no contemporaneous objection at trial by defense counsel regarding the circuit judge’s instruction to the jury, this issue is waived on appeal. Furthermore, the supreme court has held that “it is the responsibility of defense counsel to ask for [a limiting] instruction” that certain testimony is for impeachment purposes only. Sipp v. State, 936 So.2d 326, 331 (¶ 9) (Miss.2006) (citing Brown v. State, 890 So.2d 901, 913 (¶ 36) (Miss. 2004)).

¶ 24. Notwithstanding, we find the circuit court’s admonishment to the jury to be satisfactory and clear. “Our law presumes the jury does as it is told. To presume otherwise would be to render the jury system inoperable.” Williams v. State, 684 So.2d 1179, 1209 (Miss.1996) (citations omitted). Thus, this issue is without merit.

¶ 25. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF EIGHTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.

      . The testimony at trial was that Booth had a reputation for violence and was possibly a member of a local gang.

      . We concluded that "[t]o the extent that the court's comments were prejudicial, the matter could easily have been corrected had the matter been called to the court’s attention in a timely way.” Id.


source: Caselaw Access Project

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

license: Public Domain

text:
    Jeffrey Wayne YEATMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00847-COA.
    Court of Appeals of Mississippi.
    Aug. 9, 2011.
    Rehearing Denied Nov. 15, 2011.

      Jeffrey Wayne Yeatman, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   LEE, C.J., for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Jeffrey Yeatman pleaded guilty in the Oktibbeha County Circuit Court to simple assault of a law-enforcement officer. Yeatman also pleaded guilty to two counts of felony driving under the influence (DUI). In the sentencing order for his simple-assault conviction, Yeatman was ordered to serve five years in the custody of the Mississippi Department of Corrections, as well as pay a $5,000 fine in conjunction with one of the felony DUI counts.

¶ 2. Yeatman filed a motion for post-conviction relief, which was ultimately denied. Yeatman now appeals, asserting the following issues: (1) an amendment to his simple-assault indictment was illegal; (2) his sentence was illegal because the $5,000 fine exceeded the amount prescribed by statute; and (3) he was illegally sentenced as a habitual offender. Finding no merit, we affirm.

STANDARD OF REVIEW

¶ 3. A trial court’s denial of a motion for post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

I.AMENDMENT TO INDICTMENT

¶ 4. In his first issue on appeal, Yeatman argues that his indictment was illegally amended. At some point prior to the guilty-plea hearing, the word “deputy” in the indictment was struck through and replaced with the words “law enforcement officer.” It is well settled that a valid guilty plea waives certain constitutional rights, including insufficiencies or defects in indictments. Conerly v. State, 607 So.2d 1153, 1156 (Miss.1992). However, a guilty plea does not waive lack of subject-matter jurisdiction or the failure to charge an essential element of the crime. Id. Yeat-man’s argument does not concern either of these exceptions; thus, his argument is procedurally barred.

¶ 5. Regardless of the procedural bar, it is clear that during the plea colloquy Yeatman was aware that he was pleading guilty to simple assault upon a law-enforcement officer. Since the amendment did not “materially alter facts which are the essence of the offense,” the amendment was clearly one of form and not substance and, thus, did not violate Yeat-man’s due-process rights. Chandler v. State, 789 So.2d 109, 111 (¶4) (Miss.Ct. App.2001). This issue is without merit.

II. ILLEGAL SENTENCE

¶ 6. In his second issue on appeal, Yeatman argues that his sentence was illegal. Yeatman contends that the trial court ordered him to pay a $5,000 fine on the simple-assault conviction in violation of Mississippi Code Annotated section 97-3-7(1) (Supp.2010). Section 97-3-7 provides for a maximum fine of $1,000 if convicted of simple assault on a law-enforcement officer. The trial court’s statements during the plea colloquy are confusing and make it appear that Yeatman was ordered to pay a $5,000 fine on the simple-assault conviction. However, the sentencing order for the simple-assault conviction states that the $5,000 fine was ordered to be paid pursuant to Yeatman’s conviction on one of the felony DUI convictions. Since this particular DUI conviction was a third offense, the fine ordered was the maximum as prescribed by statute. See Miss.Code Ann. § 63 — 11—30(2)(c) (Supp.2010). This issue is without merit.

III. HABITUAL-OFFENDER STATUS

¶ 7. In his final issue on appeal, Yeatman argues that the indictment failed to charge him as a habitual offender. Pri- or to the plea colloquy, the State informed the trial court that it had reached a plea agreement with Yeatman, where Yeatman would plead guilty and, in return, he would be sentenced as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007) rather than Mississippi Code Annotated section 99-19-83 (Rev.2007). Section 99-19-81 orders the maximum sentence for the charged felony, whereas section 99-19-83 orders a mandatory life sentence. At that point, the State moved to amend the indictment to include Yeat-man’s prior felony convictions. Yeatman did not object, and the indictment was amended.

¶ 8. Rule 7.09 of the Uniform Rules of Circuit and County Court states that indictments may “be amended to charge the defendant as [a] habitual offender ... only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” The record is clear that Yeatman was aware that he was being charged as a habitual offender and had no objection. This issue is without merit.

¶ 9. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.

IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.


author: MAXWELL, J., for the Court:

text:
    Billy Pink SMITH, Appellant v. Sue Yielding SMITH, Appellee.
    No. 2009-CA-01661-COA.
    Court of Appeals of Mississippi.
    Nov. 1, 2011.
    Rehearing Denied March 13, 2012.
    Certiorari Denied June 28, 2012.

      Richard Shane McLaughlin, attorney for appellant.
    Jak McGee Smith, Tupelo, attorney for appellee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   MAXWELL, J., for the Court:

¶ 1. The Itawamba County Chancery Court granted Sue Smith a divorce from her husband Billy Smith based partly on Billy’s gambling losses, which exceeded $300,000. We find Billy’s extensive dissipation of marital assets, when combined with his pattern of fraudulent conduct and unwelcome sexual advances toward Sue, satisfy the criteria for divorce based on habitual cruelty. We further find the chancellor correctly applied the law and committed no manifest error in classifying and distributing the marital property. Thus, we affirm.

FACTS

¶2. Billy and Sue married in 1965. They had one child, Billy Smith Jr., who was emancipated by the time of the trial in this case.

¶ 3. Both Billy and Sue were school teachers for many years. After retiring, they started an internet business, which sold computer software to school districts throughout Mississippi. The parties eventually sold their software business for a profit. They used some of the proceeds to start a business, Fulton Rental Properties, Inc. (“FRP”). Initially, Billy owned 50% of the stock in FRP, Sue owned 25%, and Billy Jr. owned 25%. After the parties separated, Billy Jr. sold his twenty-five-percent interest to his father for $50,000.

¶ 4. After the parties had been married for about thirty-five years, Billy developed a severe gambling addiction. He gambled away substantial sums of money — over $300,000 — from 2000 to 2007. The vast majority of the losses occurred from 2003 to 2006.

¶ 5. Billy and Sue separated in February 2006. Approximately two months later, Sue filed for divorce. Her amended complaint alleged the fault-based grounds of habitual cruel and inhuman treatment and constructive desertion. On July 7, 2009, the chancellor granted the divorce, finding Sue had proven both grounds. In dividing the property, the chancellor valued Billy’s gambling losses at $314,000. Finding Billy had committed wasteful dissipation, the chancellor ordered him to reimburse Sue one-half of this amount — $157,000. The chancellor’s overall distribution of the marital estate was roughly equal between the parties.

¶ 6. On appeal, Billy argues the chancellor erred by: (1) granting the divorce; (2) finding he had accrued $314,000 in gambling losses and ordering him to reimburse Sue for one-half of this amount; and (3) determining Billy owned no separate-property interest in FRP.

STANDARD OF REVIEW

¶ 7. “Chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and their decisions will not be reversed if the findings of fact are supported by substantial credible evidence in the record.” Henderson v. Henderson, 757 So.2d 285, 289 (¶ 19) (Miss.2000). We will not disturb a chancellor’s factual findings unless the chancellor’s decision was manifestly wrong or clearly erroneous, or the chancellor applied an improper legal standard. Wallace v. Wallace, 12 So.3d 572, 575 (¶ 12) (Miss. Ct.App.2009). We do not substitute our “judgment for that of the chancellor, even if [we disagree] with the findings of fact and would arrive at a different conclusion.” Coggin v. Coggin, 837 So.2d 772, 774 (¶ 3) (Miss.Ct.App.2003).

¶ 8. When reviewing a chancellor’s interpretation and application of the law, our standard of review is de novo. Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss.2001). A chancellor’s determination that a spouse’s conduct rose to the level of habitual cruel and inhuman treatment is a determination of law, which we review de novo. Potts v. Potts, 700 So.2d 321, 322 (¶ 10) (Miss.1997); Anderson v. Anderson, 54 So.3d 850, 851 (¶ 7) (Miss.Ct. App.2010).

DISCUSSION

I. Habitual Cruel and Inhuman Treatment

¶ 9. Billy argues the chancellor erred by granting the divorce based primarily on his gambling losses. He contends gambling can never, in itself, constitute a ground for divorce based on habitual cruelty. Sue responds that Billy’s excessive gambling, when combined with his pattern of deceptive conduct to finance his gambling, his unwelcome sexual advances, and poor hygiene, made the marriage revolting to her.

A. General Requirements

¶ 10. In Mississippi, one of the twelve fault-based grounds for divorce is habitual cruel and inhuman treatment. Miss.Code Ann. § 93-5-1 (Supp. 2011). To obtain a divorce on this ground, the plaintiff must show conduct that either:

(1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Richard v. Richard, 711 So.2d 884, 889 (¶ 22) (Miss.1998). The plaintiff must prove one of these two prongs by a preponderance of the credible evidence. Shavers v. Shavers, 982 So.2d 397, 403 (¶ 35) (Miss.2008).

¶ 11. In reviewing a divorce based on cruelty, “[t]here is a dual focus on the conduct of the offending spouse and the impact of that conduct on the offended spouse.” Bodne v. King, 835 So.2d 52, 59 (¶ 24) (Miss.2003). Evaluating the impact on the offended spouse is a subjective inquiry. The focus is on the effect the conduct has on the particular spouse, not its effect on an ordinary, reasonable person. Faries v. Faries, 607 So.2d 1204, 1209 (Miss.1992). The plaintiff must show a casual connection between the defendant’s conduct and the impact on the plaintiff. Id. And the defendant’s cruelty must not be too temporally remote from the separation. See Richard, 711 So.2d at 890 (¶ 23) (finding a divorce may be granted based on “habitual or continuous behavior over a period of time, close in proximity to the separation, or continuing after a separation occurs[.]”); see also Deborah H. Bell, Bell on Mississippi Family Law § 4.02[8][b]-[c] (2005) (explaining that a strict causal connection between the conduct and the separation is no longer a required element of proof).

¶ 12. Generally, the party alleging habitual cruelty must corroborate his or her own testimony. Shavers, 982 So.2d at 403 (¶ 35). An exception is made in cases where corroboration is not reasonably possible because of the nature of the accusation. Bell § 4.02[8][d]; see also Jones v. Jones, 43 So.3d 465, 478 (¶30) (Miss.Ct. App.2009). “ ‘[Cjorroborating evidence need not be sufficient in itself to establish [habitual cruelty],’ but rather ‘need only provide enough supporting facts for a court to conclude that the plaintiffs testimony is true.’” Jones, 43 So.3d at 478 (¶ 30) (quoting Bell § 4.02[8][d]).

¶ 13. To prove habitual cruelty, the plaintiff must show more than mere unkindness, rudeness, or incompatibility. Robison v. Robison, 722 So.2d 601, 603 (¶ 5) (Miss.1998). Although in cases of violence a single incident may be sufficient for a divorce, generally the plaintiff must show a pattern of conduct. See Curtis v. Curtis, 796 So.2d 1044, 1047 (¶ 8) (Miss.Ct. App.2001). When there is no violent conduct involved, we review the facts on a case-by-case basis, taking into account the frequency and severity of the conduct, as well as the impact on the plaintiff. See Bell § 4.02[9][b]. “There are many kinds of acts such as wilful failure to support, verbal abuse, neglect, and the like which, if taken alone will not constitute cruelty, but when taken together will manifest a course of conduct as a whole which may amount to cruelty.” Jackson v. Jackson, 922 So.2d 53, 57 (V 8) (Miss.Ct.App.2006).

¶ 14. Because it is undisputed that Billy did not create a danger to Sue’s safety, nor an apprehension of danger, we focus on the second prong of the test for habitual cruelty — whether any of Billy’s conduct was so “unnatural and infamous” that the marriage became revolting to Sue and rendered it impossible to discharge her marital duties without risk to her health.

B. “Unnatural and Infamous”

¶ 15. Our supreme court has observed “[t]he words ‘unnatural and infamous’ have not been precisely defined by precedent because the plain meanings of those words are sufficient.” To determine the plain meaning of words, we look to their dictionary definition. Gilmer v. State, 955 So.2d 829, 834 (¶ 13) (Miss.2007). The American Heritage Dictionary 1956 (3d ed. 1992) defines “unnatural” as “[d]eviating from a behavioral or social norm[.]” “Infamous” means “[clausing or deserving infamy; heinous[.]” Id. at 924.

¶ 16. In McIntosh v. McIntosh, 977 So.2d 1257, 1267 (¶¶ 37-38) (Miss.Ct.App. 2008), this court found a wife’s conduct relating to the parties’ finances amounted to habitual cruelty under the “unnatural and infamous” prong. The wife in McIntosh forged her husband’s name to savings bonds, cashed them without notifying him, and pretended to help him look for them afterward. We found: “Such acts certainly qualify as conduct that could have rendered the marriage revolting ... and could have made it impossible ... to discharge the duties of marriage.” Id. at 1267 (¶ 38). In Jones, 43 So.3d at 471-72 (¶ 10), 473-74 (¶¶ 15-16), 477-78 (¶¶26, 29), we found a husband’s substantial gambling losses — when combined with his verbal abuse and sexual demands — rose to the level of habitual cruel and inhuman treatment. Though proof of the gambling losses was limited, the wife testified the losses were $100,000. Id. at 471 (¶ 10).

C. Chancellor’s Findings

¶ 17. The chancellor thoroughly analyzed this issue. She granted the divorce because “the cumulative effect of Billy’s conduct ... rendered the marriage intolerable for Sue.” Her findings included that:

[T]he undisputed proof is that Billy has been heavily involved in gambling for an extended period of time, but the proof was not limited to that activity alone. The credible proof established that Billy’s gambling activity had reached such intensity for him that he utilized the income and available credit of one of the closely-held corporations created during the parties’ lengthy marriage in order to fund his hobby, which has led to his repeated failure to provide an accounting of his finances with regard to gambling on multiple occasions throughout this litigation and deterioration in his care of the marital home and business interests. While Sue may have accompanied Billy [to the casinos] on a few occasions several years ago, she after-wards denounced his gambling to excess and the credible proof established that his gambling was indeed excessive and particularly onerous to her. Additionally, Billy’s hygiene and sexual demands were offensive to Sue to the degree that she could not share a bedroom with him.

D. Billy’s Habitual Cruelty

¶ 18. Billy claims the chancellor should not have focused so heavily on his gambling losses which totaled over $300,000. However, we find it is certainly significant that after thirty-five years of marriage, Billy suddenly became an excessive gambler and unilaterally squandered hundreds of thousands of dollars in marital assets over a relatively short period of time. And we point out, Billy’s gambling was not the sole impetus for the chancellor’s cruelty finding. In addition to the financial devastation Billy caused and its effect on Sue, the chancellor also looked to the dishonest methods Billy utilized to finance his habit, and his sexual demands of Sue.

¶ 19. Although Billy downplays the legal significance of his fraudulent conduct to obtain financing to further his gambling, we find in this particular case, the deceptive means Billy used to pursue his habit are perhaps as significant as the dissipation itself. There is no dispute that Billy utilized the parties’ businesses to fund his gambling. From 2003 to 2006 alone, he expended over $300,000 from their business accounts. He also stripped their rental-property business of essentially all profits during this time. The record shows Billy made no less than three material misrepresentations to financial institutions in obtaining loans. The false statements included: (1) in 2001, he mortgaged the marital home and claimed on loan documents to be an “unmarried” man; (2) he forged Sue’s signature on loan documents in 2003 to increase the line of credit on the marital home to $250,000; (3) in 2002, he again forged Sue’s name to obtain a loan of $127,000. And in 2006, Billy secretly obtained a $19,200 home-equity loan on the marital home. Sue discovered this loan when she performed a title search in preparation for the divorce action.

¶ 20. According to Sue, Billy was solely responsible for managing their business finances, thus allowing him to conceal the extent of his gambling for a considerable time. Sue claimed Billy had lied to her about how much money he had lost, telling her he had lost “hundreds,” when he had lost many “thousands.” She did not realize the extent of Billy’s gambling problem until March 2005, when she discovered bank and credit-card statements reflecting Billy’s immense expenditures. Sue claimed, “[she] was floored” and explained that “[she] tried to get him to stop ... [but] couldn’t even talk to him. [She] couldn’t even penetrate. He paid no attention to what [she] said.”

¶ 21. In her cruelty analysis, the chancellor also noted Sue’s testimony that Billy attempted to perform oral sex on her without her consent and “tried to force [her] legs apart ... with force.” Sue described another occasion where, in her words, “he tried to do anal sex and I jumped and told him he had better not ever do that again.” Sue accused Billy of viewing pornography often, which she thought “was the reason that he couldn’t perform as well naturally.” Sue also testified Billy had “loose bowels” and would often get into bed with her wearing soiled underwear. Sue claimed Billy “refused to wash, clean up. And this was at least five times a week most weeks.” Even after Sues laid out clean underwear for Billy, he refused to change out of his soiled ones. Sue explained the odor was so revolting to her that she frequently slept in a separate room.

¶ 22. Habitual cruelty may be found from a series of acts, “such as wilful failure to support, verbal abuse, neglect, and the like which, if taken alone will not constitute cruelty, but when taken together will manifest a course of conduct as a whole which may amount to cruelty.” Jackson, 922 So.2d at 57 (¶ 8). We find no error in the chancellor’s decision that Billy’s behavior, taken as a whole, constitutes habitual cruelty. His qualifying conduct includes not only his gambling losses of over $300,000, but his series of intentional, often dishonest, and possibly criminal acts, through which he dissipated the parties’ assets to fund his gambling addition. His sexual and personal-hygiene issues that rendered the relationship revolting to Sue also factored into the chancellor’s cruelty finding.

¶ 23. Considering whether Billy’s behavior is “unnatural” — deviating from societal norms — and deserving of labels such as “heinous” or “infamous,” we note it is similar to conduct we found amounted to habitual cruelty in both Jones and McIntosh. Like the fraud displayed in McIntosh, Billy forged his wife’s signature on financial documents. And much akin to the husband in Jones, Billy gambled away exorbitant sums of money and made un-welcomed sexual demands. Notably, Billy’s gambling losses were considerably more extensive than the substantial losses in Jones. Billy also resorted to various deceptive methods to obtain loans to fund his habit.

¶ 24. Billy cites several cases we find unavailing to his argument. In Curtis v. Curtis, 796 So.2d 1044, 1046-47 (¶¶3, 7-10) (Miss.Ct.App.2001), we determined a wife’s gambling losses, which forced the parties to refinance their house to pay off credit cards and other small loans, were not sufficiently devastating to meet the supreme court’s definition of habitual cruelty. Though observing “gambling has not been found per se to be cruel and inhuman treatment,” we explained gambling could constitute habitual cruelty if it arose to the level defined by the Mississippi Supreme Court. Id. at 1047 (¶ 8). Here, we find Billy’s overall conduct rises to that level. We distinguish Curtis because: (1) Billy’s gambling losses were much more considerable than those in Curtis; and (2) Billy engaged a pattern of dishonest behavior in incurring the gambling debt.

¶ 25. In Criswell v. Criswell, 254 Miss. 746, 182 So.2d 587 (1966), the supreme court addressed a wife’s gambling and found that it did not rise to the level of habitual cruelty. But in Criswell, unlike this case, the wife’s gambling was “condoned by [the husband] for many years.” Criswell, 254 Miss, at 758, 182 So.2d at 590. While Sue might have accompanied Billy to the casino about six times, she did not condone the vast majority of his substantial gambling debt — as the chancellor found. This conclusion is bolstered by Lowrey v. Lowrey, 25 So.3d 274, 289 (¶ 36) (Miss.2009), where the supreme court found one spouse’s limited gambling on a few occasions did not condone the other spouse’s gambling losses of over $122,000. Sue, likewise, did not condone Billy’s gambling.

¶ 26. Billy also suggests Sue has not shown the necessary detrimental impact on her health. The Mississippi Supreme Court has explained that assessing the impact of cruelty on the plaintiff is a subjective test. Faries, 607 So.2d at 1209. But the court has required an objective showing of harm to that spouse’s health and well-being. See id. at 1209 (citing Bias v. Bias, 493 So.2d 342, 345 (Miss.1986) (explaining that the harm may be emotional or physical); see also McIntosh, 977 So.2d at 1264-66 (¶¶ 27-30); Bell § 4.02[8][b]. The court has made no exception for claims proceeding under the “unnatural and infamous” prong.

¶ 27. Here, the chancellor found Billy’s gambling had “adverse effects” on Sue, which were “particularly onerous to her.” And due to the couple’s financial collapse, Sue “continued to be devastated by the amount of money Billy lost ... gambling.” The chancellor also found credible Sue’s testimony that she had trouble sleeping and suffered from depression. The chancellor further relied on testimony from Sue’s brother, William Yielding, that on two occasions, Yielding had to go to Sue’s house “and calm her down because of what Billy said” to her. On one such occasion, Yielding observed Sue “nervous” and “about to have a breakdown.” Yielding recalled, “She couldn’t even breath[e].” Yielding testified this reaction was in response to a phone call from Billy. During this call, Billy allegedly falsely claimed their son Billy Jr. “was sick or in an accident or something to that effect [which] got her all upset. Said that she didn’t care anything about [their son] or something like that and just got her all messed up.” As a result, an ambulance had to be called. When paramedics arrived, Yielding “stayed with her a little while” untü they could “get her to where she could breathfe.]”

¶ 28. We find no manifest error in the chancellor’s finding that Sue had proven a sufficient adverse impact on her health. The evidence supports that the marriage was so revolting to Sue that she could no longer continue her marital duties without risk to her health. See Kergosien, 471 So.2d at 1209 (quoting Howard v. Howard, 248 Miss. 301, 308-304, 138 So.2d 292, 293 (1962) (“The cruelty ... [must] render further cohabitation impossible, except at the risk of life, limb, or health on the part of the unoffending spouse[.]”). We found similar health concerns sufficient in McIntosh. McIntosh, 977 So.2d at 1264-66 (¶¶ 26-30). While Sue offered no expert medical testimony on the point of her health, this is not required. See id. (applying Kergosien, 471 So.2d at 1210).

¶ 29. We reject Billy’s argument that the Mississippi Legislature’s refusal to adopt gambling as a fault-based ground for divorce has a bearing on the issue before us. That the Legislature has not made gambling its own ground for divorce does not mandate that gambling cannot combine with other factors to satisfy the existing ground of habitual cruelty. Cf. Jones, 43 So.3d at 473-74 (¶¶ 15-16), 477-78 (¶¶ 26, 29).

¶ 30. For these reasons, we find Billy’s overall conduct sufficient to support a divorce based on habitual cruelty. So we need not reach the chancellor’s alternative finding of constructive desertion.

il. Gambling Losses

A. Valuation

¶ 31. Billy argues the chancellor erred in finding him responsible for reimbursing Sue for one half the amount of his gambling losses. He also claims the chancellor’s $314,000 valuation of his gambling debt is inaccurate and clearly erroneous. In ordering an equitable distribution, chancellors are directed to (1) classify the parties’ assets as marital or separate property, (2) determine the value of those assets, and (3) divide the marital estate equitably based upon the factors set forth in Ferguson. Larue v. Larue, 969 So.2d 99, 104 (¶ 11) (Miss.Ct.App.2007) (citing Ferguson v. Ferguson, 639 So.2d 921, 928-29 (Miss.1994)). We review a chancellor’s valuation of assets for an abuse of discretion. See Christopher v. Christopher, 766 So.2d 119, 122 (¶ 13) (Miss.Ct.App.2000).

1132. Sue utilized several methods to prove the extent of Billy’s gambling losses. She subpoenaed Billy’s gambling records from 2000 forward and presented expert testimony from Chris Jones, CPA. Utilizing the “coin in/coin out” method to evaluate the casino records, Jones determined Billy wagered approximately $1.5 million from 2000 to 2007 and “won” approximately $1.2 million. Specifically, Jones determined Billy’s net gambling losses totaled $326,220. Sue also corroborated Jones’s estimates by introducing financial records of the parties’ businesses. She offered bank and credit-card statements showing Billy had expended a total of $314,950 using the parties’ business accounts from 2003 to 2006. Further, Billy admitted that the accountant for their corporations, after preparing 2005 tax returns, had told him that as much as $400,000 had gone missing. The chancellor found Billy introduced no credible evidence refuting the amounts proven by Sue. The chancellor also prominently noted that despite multiple court-ordered account-ings, Billy was unable to explain the lost sums.

¶ 33. Billy claims the chancellor ignored his winnings from the casinos. Specifically, he argues his winnings include $121,000, which he purportedly gifted to his son, Billy Jr. Yet our review reveals Billy Jr. testified that both of his parents gave him the $121,000 amount. This figure was based on Billy Jr’s, recollection of the amounts he had received over a ten-year period. There was no documentary support for the alleged gift. Also, Billy fails to show how this $121,000 figure— even if accurate — contradicts Sue’s proof that Billy’s net gambling losses exceeded $314,000. Indeed, the methodology of Sue’s expert, Jones, accounted for winnings.

¶ 34. Because the record — including expert testimony and documentary evidence — supports the chancellor’s finding that the gambling losses totaled at least $314,000, we are unable to find manifest error in her decision.

B. Billy’s Responsibility for One-Half of Gambling Debt

¶ 35. We next consider the chancellor’s finding that Billy’s gambling losses of $314,000 constitute dissipation. We also address her finding that one-half the value of the dissipated funds ($157,000) should be deducted from Billy’s overall share of the marital estate — essentially requiring Billy to reimburse Sue for one-half of the funds he dissipated.

(1) Dissipation

¶ 36. The Mississippi Supreme Court has held: “[G]ambling losses can be considered as dissipation in an equitable distribution of marital assets.” Lowrey, 25 So.3d at 288 (¶ 34) (citing Craft v. Craft, 825 So.2d 605, 607, 611 (¶ 22) (Miss.2002)). But the Lowrey court was careful to point out: “Gambling losses are not per se dissipation. This is to be decided on a case-by-case basis.” Id. at n. 10.

¶ 37. The supreme court has not adopted a specific test to discern when one spouse’s alleged misuse of marital funds constitutes “dissipation.” Yet the court has indicated that the dissipation must be “wasteful.” See Lowrey, 25 So.3d at 288-89 (¶ 34), 291 (¶ 40) (finding gambling losses well over $122,000 constituted wasteful dissipation). Indeed, the dictionary definition of “dissipate” is: “To spend or expend intemperately or wastefully; squander.” The American Heritage Dictionary 539 (3d ed. 1992). This area of law has not been thoroughly developed in Mississippi, but we find it reasonable when considering if marital assets have been dissipated to look to whether the assets in question were actually wasted or misused. Though Mississippi has no definitive standard, we note that Indiana courts consider the following factors in determining whether dissipation has occurred:

(1) whether the expenditure benefit[t]ed the marriage or was made for a purpose entirely unrelated to the marriage;
(2) the timing of the transaction;
(3) whether the expenditure was excessive or de minimis; and
(4) whether the dissipating party intended to hide, deplete, or divert the marital assets.

Thompson v. Thompson, 811 N.E.2d 888, 915 (Ind.Ct.App.2004) (citation omitted). We find this test for dissipation persuasive and note all factors favor a finding that dissipation occurred here. Billy’s gambling was for a purpose unrelated to the marriage. The gambling occurred during the time period leading up to the separation. The expenditure was excessive. And, as previously discussed, Billy surreptitiously diverted marital assets to fund his gambling addiction, through a pattern of fraudulent acts. Upon discovery of the seriousness of Billy’s addiction, Sue pleaded with Billy to stop gambling, but he refused.

¶ 38. From these facts, we find no error in the chancellor’s determination that Billy’s losses constitute dissipation.

(2) Reimbursement for One-Half of Debt

¶ 39. If a debt is considered wasteful dissipation, the court should next consider what amount should be reimbursed to the marital estate (or offset from the dissipating spouse’s share of the marital estate). Here the chancellor’s order required Billy to compensate Sue $157,000, representing one-half of his total gambling losses. This sum was to be paid from the sale of the marital residence, valued at $225,000. Billy contends this award was inequitable.

¶ 40. In Lowrey, the supreme court found a spouse’s gambling losses eonstitut-ed dissipation. Lowrey, 25 So.3d at 288 (¶ 34). Though Lowrey dealt with an insolvent marital estate, unlike our present situation, the supreme court adopted this court’s analysis from Dunaway, where we considered similar facts. Id. at 290-91 (¶¶ 39-40) (citing Dunaway v. Dunaway, 749 So.2d 1112 (Miss.Ct.App.1999)). In Dunaway, we held a chancellor in error for awarding a wife 100% of the assets dissipated by her husband. Dunaway, 749 So.2d at 1119 (¶ 19). We recognized that had the husband not dissipated the assets, “they would have been in that body of assets to be equally divided, ... entitling [the wife] to approximately one-half of them.” Id. Finding the chancellor’s 100% award “took on something of a punitive aspect,” we found the proper course was to return to the non-offending spouse “the one-half that was rightfully hers[.]” Id.

¶ 41. This is the exact approach the chancellor used here. There is no dispute that the assets Billy dissipated through gambling were marital assets. Finding a roughly equal overall award was appropriate, the chancellor returned to Sue a value of one-half of the dissipated marital assets, thus following the tenets of Lowrey and Dunaway. We find no manifest error in this decision.

III. Classification of FRP

¶ 42. Billy finally argues the chancellor erred by finding the parties’ rental-property business, FRP, was entirely marital property. While it is undisputed that 75% of FRP is marital, Billy contends the chancellor erred in classifying the remaining 25% interest, which he purchased from his son following the separation, as marital. This transfer occurred after the chancellor entered an agreed order, on July 14, 2006, freezing the parties’ marital and business assets. In the chancellor’s judgment of divorce, she found: “[F]or the purposes of equitable division, this [agreed order] signaled the end of accumulation of marital assets by the parties.” But because she found Billy’s 25% interest “was acquired following the parties’ separation with marital funds,” the chancellor ordered FRP sold and the proceeds divided equally between the parties. (Emphasis added).

¶ 48. The beginning date for the accumulation of marital property is the date of the marriage. The ending date is the date of divorce unless there is an order, such as a separate maintenance order or temporary-support order, which cuts off the accumulation of marital property. Godwin v. Godwin, 758 So.2d 384, 386-87 (¶¶ 7-8) (Miss.1999) (finding husband’s deferred compensation plan acquired after separate-maintenance order was entered was husband’s separate property); Bell § 6.02[3][b] (“[A]n order of separate maintenance or temporary support ends marital property accumulation as a matter of law.”). But if an asset is acquired after this line of demarcation with marital property, the acquired asset is marital property. Godwin, 758 So.2d at 386 (¶ 7).

¶ 44. In this case, there was no separate maintenance or temporary-support order, only an agreed order freezing the parties’ marital and business assets. The parties do not dispute the chancellor’s determination that this agreed order was the proper line of demarcation for the accumulation of marital property. Thus we find no fault with this determination. Nor do we find error in the chancellor’s determination that Billy’s 25% interest “was acquired ... with marital funds.” At other points in the judgment of divorce, the chancellor found Billy had violated the agreed order by selling marital property ordered frozen by the court. In fact, the chancellor held Billy in contempt based on Billy’s repeated failure to comply with court-ordered accountings regarding his use of marital and business funds under the agreed order. On appeal, Billy does not challenge the chancellor’s contempt finding.

¶45. Due to Billy’s refusal to comply with court-ordered accountings, there are many uncertainties about Billy’s use of some of the marital assets following the agreed order. Billy fails to specify on appeal any documentation or testimony to refute the chancellor’s finding that he used marital assets in purchasing his son’s 25% interest in FRP. On the record before us, we are unable to discern any basis for reversal on this issue.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE AND RUSSELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT. CARLTON, J., CONCURS IN RESULT ONLY. MYERS AND ROBERTS, JJ., NOT PARTICIPATING.

      . The chancellor should also consider the appropriateness of alimony if either party is left with a deficiency. Lame, 969 So.2d at 104 (¶11).

      . Jones explained that under this method, he analyzed the casino’s "independent tracking of coin-in, coin out. And simply by taking the coin-in, subtracting the coin-out, you can arrive at an individual’s net gambling activity.” Jones explained that Billy used a player rewards card to gamble, which allowed the casino to track his gambling activity. In Jones’s opinion, the "coin-in, coin out” method is generally the most accurate measure for valuing gambling losses.

      . But see Bowen v. Bowen, 982 So.2d 385, 396 (¶ 47) (Miss.2008) (finding an undetermined amount of gambling losses did not constitute dissipation).

      . See Issue I.

      . As of the date of the divorce, Billy had paid approximately $5,000 toward his $50,000 purchase of this 25% interest.

      . The agreed order provided an exception for funds “needed for the ordinary course of business and to pay regular family bills.”


author: GRIFFIS, P.J., for the court:

text:
    Steven O. BENNETT, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01961-COA.
    Court of Appeals of Mississippi.
    Feb. 7, 2012.
    Rehearing Denied June 26, 2012.
    Leslie S. Lee, Jackson, Justin Taylor Cook, attorneys for appellant.
    Office of Attorney General by Jeffrey A. Klingfuss, attorneys for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   GRIFFIS, P.J., for the court:

¶ 1. A Lincoln County jury found Steven O. Bennett guilty of aggravated assault in the shooting of Willie Bridges, which occurred following a fight between the two men in the parking lot of a bar located in Brookhaven, Mississippi. The trial court sentenced Bennett to twenty years in the custody of the Mississippi Department of Corrections, with the sentence to run consecutively to a previously imposed sentence. Bennett also was ordered to pay court costs, a fine, and restitution for the victim’s medical bills. Bennett appeals arguing that the jury’s verdict was against the overwhelming weight of the evidence. We find no reversible error and affirm.

FACTS

¶2. On or about April 9, 2010, during closing time at JB’s bar, somebody reportedly “popped” Leslie Hickingbottom on her backside as she and Bridges were walking out of the bar. As a result, a fight ensued in JB’s parking lot between Bridges and an unknown person. Witnesses testified that Bennett was with this person, and Bennett joined in the fight.

¶ 3. Hickingbottom testified that Bridges punched Bennett, and a gun fell from Bennett’s person onto the ground. Seeing the gun, Bridges “got on top of [Bennett and began] beating him.” Afterwards, Bridges got up, dusted himself off, and walked away. Hickingbottom testified that Bennett then shot Bridges.

¶ 4. Bridges testified that he stopped hitting Bennett and walked away because he did not want to hurt Bennett. Bridges said when he got to his truck, he turned around and saw Bennett dusting himself off. Bennett then grabbed the gun, pointed it at Bridges and shot him. Bennett took off running and jumped into a red and black “Charger” vehicle.

¶ 5. Ashley Graham and her mother, Ann Felder, testified they were at JB’s bar prior to closing, and they witnessed the shooting from the parking lot of the “G-Store,” located “in front” of JB’s bar. Both Graham and Felder identified Bennett as the shooter at trial. Felder told the jury, however, that she did not see Bennett’s face at the time of the shooting, but she recognized Bennett as the shooter from the clothes he was wearing after having seen him earlier in the evening inside JB’s bar.

¶ 6. The shooting resulted in a serious wound to Bridges’s shoulder. Bridges first received medical treatment at King’s Daughter’s Hospital in Brookhaven before being flown to the University Medical Center in Jackson where he underwent extensive medical treatment.

¶ 7. Two Brookhaven police officers, who helped investigate the matter, testified that two cell phones were recovered from JB’s bar’s parking lot during the investigation. Both phones were entered into evidence at trial. Bridges identified one of the phones as his. The State alleged that the other phone belonged to Bennett. According to Officer Bobby Bell, the phone’s directory contained a phone number stored under the name, “Mom.” Bell testified when he called the number, he spoke with Bennett’s mother.

¶ 8. Bennett was the only person to testify on his behalf at trial. Bennett claimed that he had never been to JB’s bar, and he had never seen nor heard of the victim or any of the witnesses. Bennett also testified that he had never before owned, touched, or fired a gun of any kind. Bennett stated that he owned a cell phone, which he lost sometime “around April.” Bennett claimed, however, the phone recovered from JB’s bar’s parking lot, which contained his mother’s phone number, was not his.

¶ 9. The jury found Bennett guilty of aggravated assault. Bennett filed a motion for a new trial on the basis that jury’s verdict was against the overwhelming weight of the evidence. The trial court denied the motion. Bennett timely appealed.

STANDARD OF REVIEW

¶ 10. “A motion for new trial challenges the weight of the evidence.” Wilkins v. State, 1 So.3d 850, 854 (¶ 11) (Miss.2008) (quoting Ivy v. State, 949 So.2d 748, 754 (¶ 21) (Miss.2007)). The trial court’s decision to grant or deny the motion falls under an abuse-of-discretion standard on appeal. Id. The evidence is considered “in the light most favorable to the verdict[,]” and we will not order a new trial unless the verdict is found to be “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005).

DISCUSSION

¶ 11. Bennett contends the trial court erred by not granting him a new trial, because the State’s case consisted primarily of confusing and conflicting testimony from the victim and three witnesses, with no physical evidence connecting him to the crime. Bennett also claims for the first time on appeal that the State did not offer evidence that the assault was not in necessary self-defense.

¶ 12. According to the record, four people testified that they witnessed Bennett shoot Bridges on the night in question; two of the witnesses testified that they saw the assault up close. There was some conflicting testimony about the events that led up to the altercation between Bennett and Bridges, but this was for the jury to sort through and consider. Whittington v. State, 377 So.2d 927, 929 (Miss.1979) (“conflicts in the evidence, its strengths or weaknesses, are for the jury’s consideration”).

¶ 13. The evidence established that Bridges was unarmed and had already walked away from the fight when Bennett shot him. Further, a review of the jury instructions indicates that the jury rejected any notion that Bennett had acted in self-defense.

¶ 14. Based on our review of the record, we can only conclude that the jury believed the State’s testimony and rejected the testimony offered by Bennett. The verdict was not against the overwhelming weight of the evidence; thus, we must affirm the trial court’s decision to deny Bennett’s motion for a new trial. Bennett’s assignment of error is without merit.

¶ 15. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TO RUN CONSECUTIVELY TO THE SENTENCE IMPOSED IN LINCOLN COUNTY CAUSE NUMBER 09-188LS, AND TO PAY A $5,000 FINE AND RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.


text:
    Garry ALEXANDER, Appellant v. James REEVES, Conservator of the Hazlehurst School District Acting in Place of the Board of Trustees of the Hazlehurst School District, Appellee.
    No. 2010-CC-01992-COA.
    Court of Appeals of Mississippi.
    June 26, 2012.

      James T. McCafferty III, Jackson, attorney for appellant.
    John Simeon Hooks, James A. Keith, Ridgeland, attorneys for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   BARNES, J., for the Court:

¶ 1. Garry Alexander was terminated from his position as a health and physical education teacher at Hazlehurst Middle School. After hearings were conducted regarding his termination, James Reeves, the conservator for the Hazlehurst School District, upheld the decision on January 12, 2010. Alexander submitted an appeal to the Chancery Court of Copiah County, which affirmed the decision on September 29, 2010. On appeal, we find no error and affirm.

SUMMARY OF FACTS

¶ 2. Alexander was hired on June 25, 2005, to teach at the Hazlehurst School District’s middle school. In February 2009, Ken Acton, the principal for grades K through 8, recommended that Alexander be terminated from his position. The basis for the termination was neglect of duty, specifically his failure to supervise his classroom adequately and the failure to report an incident to the administrator regarding an assault on a student by other students. On February 17, 2009, Stanley Blackmon, the interim conservator for the school district, notified Alexander of his termination, effective February 20, 2009. Alexander requested, and was granted, a hearing. Shortly thereafter, James Reeves replaced Blackmon as conservator for the school district.

¶ 3. A hearing was conducted over the following dates: April 22, 2009, June 26, 2009, and December 2, 2009. Dorian Turner was the hearing officer. At the hearing, testimony was presented that Alexander had not been actively involved in his teaching duties, nor was he properly supervising his students. Acton testified that he had met with Alexander several times to discuss proper classroom supervision and had written a letter outlining these discussions. Acton stated: “The biggest safety issue was the lack of supervision in Coach Alexander’s room.” The four or five times Acton visited Alexander’s classroom, Alexander was “sitting each time at the desk basically doing nothing,” and the students were gathered in the hall or standing around the classroom. Although Acton directed the students back into the classroom, the students quickly resumed their previous activities. Acton also noted that he never received lesson plans from Alexander.

¶ 4. At the request of Blackmon and Acton, the assistant principal, Brendsha Roby, visited Alexander’s classroom on January 14 and January 16, 2009. On her first visit, Roby saw students running around the room, talking loudly. Alexander was seated at the desk grading papers, with students gathered around him, including one student who was copying answers down from the answer key. Roby instructed Alexander to stop grading papers and start class, and he passed out a worksheet to the class and returned to his seat. On the second visit, Roby saw the same thing: students around the classroom, talking in groups; Alexander grading papers at his desk and providing no instruction. Again, Roby told Alexander to give the students something to do. Alexander then began reading to the class from a binder. Her visits were documented by observation notes. Roby stated there were other times she saw Alexander teach, but the majority of times he was seated at the desk and “no instruction was going on whatsoever.” At the final hearing on December 2, 2009, Roby again testified, stating that she was present when Acton gave Alexander an improvement plan and that she observed Alexander at the direction of Blackmon and Acton. Roby stated that she did observations of other teachers and that some of them were later terminated. She again testified about her two written observations of Alexander and his classroom.

¶ 5. Patsy Livingston, an evaluator for the Mississippi Department of Education (MDE), testified that Alexander was a person of “high concern” and was known to have classroom difficulty. Livingston described Alexander’s classroom as disorderly, stating that it was often difficult to determine if Alexander was even in the classroom, as students were out of their seats and gathered around the room, thereby obstructing her view of Alexander’s desk. She said it was not unusual to find Alexander with his head on the desk and arms outstretched. Livingston acknowledged that other teachers had problems with classroom management but submitted that “nothing comes close” to the problems she saw in Alexander’s classroom. Livingston filled out a MDE “Teacher Performance Standards Monitoring Document,” giving Alexander “unsatisfactory” ratings in almost every category. Additionally, Debbie Childers, another MDE evaluator, wrote a letter to Acton dated February 11, 2009, expressing her concern about safety in Alexander’s classroom. Although she did not testify, Child-ers’s letter stated that she and other team members in classrooms across the hall from Alexander were often disturbed by noise coming from Alexander’s classroom. On six to eight separate occasions, they had to go across to Alexander’s class to investigate. On one of those occasions, Alexander told Childers, “Some of them are not my students. I can’t keep these kids in my room. They won’t sit down.”

¶ 6. Then, on February 12, 2009, an incident occurred on the playground involving the assault of a young female student who was supposed to be under Alexander’s supervision. Roby noticed the female child with a scratch on her face getting on a school bus. Roby stopped the school bus and called the nurse to treat the child’s injury. It was alleged that the fourth-grade girl had been assaulted on the playground where “boys were throwing the girls down and doing inappropriate things to them.” Acton and Roby questioned and obtained written statements from each of the students involved. The boys responsible were suspended. Although Alexander was not questioned, Acton concluded that the incident resulted from Alexander’s inadequate supervision. Acton testified that Alexander never reported the incident nor submitted any explanation about what happened. Joe Allen Mack Sr., the other teacher who allegedly was assigned to assist Alexander with supervision, testified that there were many assignment schedules and that he normally supervised the school’s gym, not the playground. Mack said he “spent very, very little time on the playground during the school year.” Mack was never asked about the incident but stated that he would have reported it if he had been involved or known about it.

¶ 7. Eileen Milner, a teacher mentor for the MDE, made an impromptu visit to Alexander’s classroom on February 17, 2009. Milner testified that she and another teacher were talking when they were interrupted by loud noise from Alexander’s classroom. When she entered the classroom, she saw students standing up, shouting, and some were even braiding each other’s hair. Alexander was reading a newspaper, and he stated to Milner that “the kids didn’t want to learn and he wasn’t going to try.” In a letter written to Acton on February 18, 2009, Milner stated: “There had not been one minute of instruction occurring during this class period.”

¶8. On the second day of the hearing, Dr. Samuel Magee, a former bureau director for MDE, testified on behalf of Alexander. Dr. Magee’s responses were based merely on the facts presented to him, as he had never worked with the Hazlehurst School District. Dr. Magee testified about teacher improvement plans and stated that “[fjailure to be specific in telling an employee what the expectations are would not be grounds for dismissal.” Dr. Magee also acknowledged: “Generally, you would have to establish a pattern of incidents, a pattern whereby you have worked with that individual and a pattern whereby that person either resisted your assistance or simply did not have the skills or ability to meet those expectations.” The school’s secretary, Anita Easterling, also testified favorably for Alexander, stating that he was “liked by the staff as well as the children.” However, she was unable to provide specific details regarding Alexander’s classroom situation. Connie Barnes, a teacher and school bus driver, stated that Alexander had disciplinary problems with students, but that they were comparable to those of other teachers.

¶ 9. On January 12, 2010, the conservator for the school district, Reeves, issued a final decision, upholding Alexander’s termination based on a finding that Alexander “failed to carry out his duties to adequately supervise his students” and “failed to turn in adequate lesson plans.” Alexander appealed the decision to the chancery court, which affirmed the ruling. On appeal, Alexander argues the conservator’s decision: (1) was beyond the authority of the conservator to make; (2) violated Alexander’s constitutional and statutory rights; and (8) was unsupported by substantial evidence and was arbitrary and capricious. Finding no error, we affirm the judgment of the chancery court, upholding Alexander’s termination.

DISCUSSION

I. Whether the conservator had the authority to issue the termination.

¶ 10. Alexander contends that neither of the two conservators, Blackmon and Reeves, established that they were validly appointed conservators with the authority to terminate Alexander. When informed that the hearing officer’s report was being prepared for the interim conservator, counsel for Alexander objected to the “decision being made by a conservator.” She stated: “The law says that it shall be made by the school board[.]” Alexander never challenged the validity of the appointments. Thus, citing Dampier v. Lawrence County School District, 344 So.2d 130, 131 (Miss.1977), the chancery court found that this issue was waived, as Alexander never argued at the termination hearing that Reeves was not a lawfully appointed conservator. “An appellate court is under no obligation to review an assignment of error when an objection was not made[.]” Dorrough v. Wilkes, 817 So.2d 567, 577 (¶ 33) (Miss.2002) (citation omitted). “[W]hen a party makes an objection on specific grounds, it is considered a waiver regarding all other grounds.” Copeland v. Copeland, 904 So.2d 1066, 1073 (¶ 24) (Miss.2004) (citation omitted). Furthermore, as noted by the Appellees, it would have been easy to establish by substantial evidence that the conservators were validly appointed if there had been a request made at the hearing or prior to the appeal.

¶ 11. The procedural bar notwithstanding, we find nothing in the record to indicate that Blackmon and Reeves were not vested with the authority to act in this matter. Alexander is correct that, in a normal situation, the local school board reviews the record presented by the hearing officer and makes the decision to uphold or reject an employee’s termination. Mississippi Code Annotated section 37-9-59 (Rev.2007) provides that “the superintendent of schools” is vested with the authority to terminate an employee, and upon a request by the employee, the local school board shall conduct a hearing regarding the termination. The school board then reviews the record and determines “whether the proposed nonreem-ployment is a proper employment decision, is based upon a valid educational reason or noncompliance with school district personnel policies and is based solely upon the evidence presented at the hearing[.]” Miss.Code Ann. § 37-9-111(5) (Rev.2007).

¶ 12. However, at the time of Alexander’s termination, the Governor of Mississippi had declared a state of emergency in the Hazlehurst School District, and acting under the authority of Mississippi Code Annotated section 37 — 17—6(ll)(c)(iii) (Rev. 2007), had appointed an interim conservator to be “responsible for the administration, management, and operations of the school district.” Miss.Code Ann. § 37-17-6(14)(a) (Rev.2007). In essence, the conservator acts, for all intents and purposes, as the school board.

¶ 13. Section 37 — 17—6(14)(a)(i) provides that a conservator is to administer the management and operation of the school “including ... the employment, termination, nonrenewal and reassignment of all licensed and nonlicensed personnel^]” This includes all powers previously held by the school board. Miss.Code Ann. § 37-17-6(15). Additionally, the Attorney General’s Office has stated that a conservator may, “if circumstances warrant, ... initiate employment actions, request appointment of a hearing officer, and make final personnel decisions.” Miss. Att’y Gen. Op., 2000-0209, 2000 WL 688815, Thompson (Apr. 12, 2000). Alexander has cited no authority to the contrary, and nothing in the record casts doubt on the conservators’ lawful appointments or their decision-making authority.

¶ 14. Accordingly, we find no merit to the contention that the conservators were not lawfully appointed or lacked authority to act on Alexander’s termination.

II. Whether the conservator’s decision violated Alexander’s constitutional and statutory rights.

¶ 15. Alexander contends that a conservator could not recommend termination and also be responsible for the termination. In this case, Blackmon, the interim conservator, sent a letter notifying Alexander of the termination. After the termination, but before the hearing was held, Blackmon was replaced by Reeves as conservator of the Hazlehurst School District. Reeves upheld the termination after Alexander received a hearing. However, Alexander argues that he could not have been afforded a fair and unbiased hearing as required by law because Blackmon and Reeves were both MDE employees. Blackmon testified that he was “employed as an independent contractor with the State Department of Education as the conservator for the Hazelhurst City School District.” Reeves did not testify, but by inference, he was also employed by the MDE as a conservator.

¶ 16. We find that Alexander was not denied due process. There is a “presumption of honesty and integrity [afforded to] policymakers with decision[-]making power.” Dampier, 344 So.2d at 132.

The contention that the combination of investigation and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.

Id. (quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975)). Alexander has not provided any evidence that he was harmed by having either of the conservators involved in his termination. Unlike the situation in the case cited by Alexander, Cantrell v. Vickers, 495 F.Supp. 195 (N.D.Miss.1980), Alexander received a hearing after being given written notice of the specific reasons for his termination. Furthermore, Acton was the individual who made the initial recommendation for termination. Black-mon merely sent the notice of termination, and Reeves made the final ruling to uphold the decision to terminate after three hearings had been conducted.

¶ 17. Alexander also claims that he was denied his right to make final statement before the conservator. After receiving notice of his termination, Alexander requested and received a hearing pursuant to section 37-9-111; he was represented by counsel. A hearing was conducted on three separate dates between April 2009 and December 2009. However, Alexander did not testify at any of the hearing dates. It was not until January 7, 2010, that Alexander requested permission to give a final statement before the conservator. However, the conservator issued an order upholding the termination on January 12, 2010, presumably not aware of Alexander’s request. The school district’s counsel subsequently responded to Alexander’s request by letter dated January 18, 2010, agreeing to the request to make a statement. Thus, Alexander argues that his statutory and due-process rights were violated since he was not given the opportunity to make a statement before the final decision was made.

¶ 18. At the conclusion of the final hearing on December 2, 2009, counsel for Alexander addressed the issue of whether he would be allowed to make a final statement:

MS. ROSS: Now, do we get a chance to appear before [the conservator] like we would appear before the school board?
THE HEARING OFFICER: I would assume so, yes.
MR. ARMISTEAD: Yes, you do, to make a final statement before him, either you or your client, you on his behalf, and we can do that at your leisure because we don’t have to get five people involved.
THE HEARING OFFICER: ... Then it will be up to y’all to schedule when Mr. Alexander will go before the conservator for a decision.

Therefore, there was an expectation that Alexander, or his counsel, would want to make a final statement before the conservator ruled.

¶ 19. Section 37-9-111(5) states:

The board shall review the matters presented before it, or, if the hearing is conducted by a hearing officer, the report of the hearing officer, if any, the record of the proceedings and, based solely thereon, conclude whether the proposed nonreemployment is a proper employment decision, is based upon a valid educational reason or noncompliance with school district personnel policies and is based solely upon the evidence presented at the hearing, and shall notify the employee in writing of its final decision and reasons therefor. Such notification shall be within thirty (30) days of the conclusion of the hearing if the hearing is conducted by a hearing officer and within ten (10) days of the conclusion of the hearing if the hearing is initially conducted by the board. If the matter is heard before a hearing officer, the board shall also grant the employee the opportunity to appear before the board to present a statement in his own behalf, either in person or by his attorney, prior to a final decision by the board.

(Emphasis added). However, Mississippi Code Annotated section 37-9-113(4) (Rev. 2007), which concerns an employee’s right to appeal a school board decision, states:

No relief shall be granted based upon a court’s finding of harmless error by the ■board in complying with the procedural requirements of sections 37-9-101 to 37-9-113. However, in the event that there is a finding of prejudicial error in the proceedings, the cause shall be remanded for a rehearing consistent with the findings of the court.

The chancery court, citing Cox v. Thomas, 403 So.2d 135 (Miss.1981), and Noxubee County Board of Education v. Overton, 483 So.2d 301 (Miss.1985), found that preventing Alexander from making a final statement constituted “harmless error” and “was not prejudicial in effect.”

¶ 20. Alexander argues that Cox and Overton are not applicable. In Cox, a music teacher, Evelyn Thomas, was not recommended by the superintendent for contract renewal. Thomas was afforded a hearing, although she did not request one, and the nonrenewal of her contract was affirmed. She never appealed the decision; rather she filed a complaint in chancery court. Cox, 403 So.2d at 136. The chancellor ruled against the school district for its failure to allow Thomas “an opportunity to appear before the school board on her own behalf, either in person or by her attorney, prior to the decision by the board.” Id. at 137. The supreme court found that the chancery court did not have jurisdiction over the action, but also noted that Thomas was represented by an attorney and that any deficiencies in this procedural matter “could very quickly have been abated upon request by Mrs. Thomas or her attorney.” Id. The supreme court further stated: “While there may have been some procedural defects on the part of the board under the act, there was a substantial and manifestly good faith attempt by the superintendent and the school board to comply with the law.” Id. at 137-38.

¶ 21. Similarly, in Overton, the Noxub-ee County Board of Education notified Carolyn Overton, a teacher, that her contract would not be renewed. Overton, 483 So.2d at 302. Three hearings were rescheduled “by mutual agreement.” Id. After a hearing was finally held a few months later, Overton was informed her contract would not be renewed. On appeal, the chancery court reversed the board’s decision, citing the failure to conduct “a hearing within thirty (30) days of the date of her request” under the requirements of section 37-9-111. Overton, 483 So.2d at 302. The supreme court reversed the chancellor’s ruling, finding the procedural defect to be “harmless error,” as Overton was given the required statutory notice of non-reemployment. Id. at 303-04.

¶ 22. Admittedly the school district’s failure to allow Alexander an opportunity to give a final statement prior to the conservator’s final decision was not in accordance with the requirements of section 37-9-111(5). However, Alexander was given ample notice of the charges against him, was represented by counsel, and was afforded a full opportunity to address them on the three separate hearing dates. Thus, we find that there was a “substantial and manifestly good faith attempt” to comply with the statute, and we uphold the chancellor’s ruling that this procedural defect constituted harmless error.

III. Whether the decision to terminate Alexander was supported by substantial evidence.

¶ 23. An appeal from the decision of an administrative agency is limited. Mainstream Sav. & Loan Ass’n v. Washington Fed. Sav. & Loan Ass’n, 325 So.2d 902, 903 (Miss.1976). In the review of a decision of an administrative agency, we will determine whether the order of the administrative agency: “(1) was supported by substantial evidence; (2) was arbitrary and capricious; (3) was beyond the power of the administrative agency to make; or (4) violated some statutory or constitutional right of the complaining party.” Id. “If the agency’s decision is found not to be based on substantial evidence, then it is considered ‘arbitrary and capricious.’ ” Pub. Employees’ Ret. Sys. v. McDonnell, 70 So.3d 264, 267 (¶ 7) (Miss.Ct.App.2011) (citing Wright v. Pub. Employees’ Ret. Sys., 24 So.3d 382, 386 (¶ 17) (Miss.Ct.App. 2009)). The Mississippi Supreme Court has held:

Pursuant to Mississippi] Code Annotated section] 37-9-113(3) (1990), the chancery court is directed to review the entire record to determine whether a school board’s decision “is unlawful because it is not supported by any substantial evidence and/or is arbitrary or capricious.” This Court employs the same standard of review when a school board decision is appealed from chancery court pursuant to Mississippi] Code Annotated section] 37-9-113(5).

Byrd v. Greene County Sch. Dist., 633 So.2d 1018, 1022 (Miss.1994) (internal citations omitted). However, in ABC Manufacturing Corp. v. Doyle, 749 So.2d 43, 45 (¶ 10) (Miss.1999), the supreme court held that, “[generally, an administrative agency is accorded deference, but when the agency has misapprehended a controlling legal principle, no deference is due, and our review is de novo.” (Citing Smith v. Jackson Constr. Co., 607 So.2d 1119, 1125 (Miss.1992)).

¶ 24. Section 37-9-59 provides that a teacher may be terminated by a school district “[f]or incompetence, neglect of duty, immortal conduct, intemperance, brutal treatment of a pupil or other good eause[.]” However, before the employee’s dismissal or suspension, he “shall be notified of the charges against him[,] and he shall be advised that he is entitled to a public hearing upon said charges.” Id. Alexander was advised that his termination was based on neglect of duty, specifically: (1) his failure to supervise his classroom adequately and (2) his failure to report the playground incident involving students to the administrator.

¶ 25. As already discussed, there was abundant testimony at the hearings by Acton, Roby, Milner, and Livingston regarding the disruptiveness of Alexander’s pupils and his inadequate supervision of the classroom. Furthermore, although Alexander argues that another teacher should have been assisting him on the playground, there was no indication that Alexander would have acted differently if Mack had been present. Acton testified that Mack had other assigned duties. Acton also noted in the incident report that Alexander told the boys to stop bothering the female student, but after they resumed their misconduct, Alexander “did not do anything in the situation.”

¶ 26. Alexander also attempted to counter the evidence of his classroom teaching and supervision with testimony regarding lack of teaching materials and allegations that he was treated more harshly than other teachers who were having similar issues. However, there was testimony that it was possible to teach health without a textbook. Livingston testified that “[t]he curriculum is what we are trying to teach” and that a textbook was “the least of our tools in most courses.” Furthermore, Acton made clear, as did Roby, that the other teachers were terminated or chose not to return. There was no testimony that other similarly situated teachers were treated differently. Additionally, Livingston testified that Alexander’s classroom management was far “more troubling” than that of other teachers, stating that “[n]othing comes close” to it. She added: “His were safety issues, kids pushing, running, pulling desks, that kind of thing. It’s a really an out of control classroom.”

¶ 27. The record shows that there was a rational and factual basis for Alexander’s termination and no indication that the decision was based on improper criteria. It is evident why the decision was made, and the facts presented at the hearing clearly support the decision. Therefore, we find that there was sufficient evidence to support the decision to terminate Alexander.

¶ 28. THE JUDGMENT OF THE CO-PIAH COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR.