author: BARNES, J.,

text:
    Thurman KIRKWOOD a/k/a Mickey, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-01349-COA.
    Court of Appeals of Mississippi.
    Feb. 9, 2010.
    Rehearing Denied June 15, 2010.

      Justin Taylor Cook, attorney for Appellant.
    Office of the Attorney General by W. Glenn Watts attorney for Appellee.
    Before MYERS, P.J., BARNES, ISHEE and MAXWELL, JJ.
   BARNES, J.,

for the Court.

¶ 1. A Coahoma County jury found Thurman Kirkwood guilty of burglary of a dwelling, fleeing or eluding a law enforcement officer in a motor vehicle, possession of a firearm by a convicted felon, and grand larceny. The circuit court determined that Kirkwood was a habitual offender and sentenced him to twenty-five years for burglary, five years for fleeing a law enforcement officer, ten years for possession of a firearm by a convicted felon, and ten years for grand larceny, all in the custody of the Mississippi Department of Corrections (MDOC). All of the sentences were ordered to run concurrently without the possibility of parole or probation. Kirkwood now appeals.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. On October 11, 2007, W.C. Smith, upon returning from Memphis, Tennessee, discovered that his trailer in Friars Point, Mississippi had been burglarized. Smith has another residence, but he spends the night in this trailer approximately every other night. He also uses this trailer as an office and a shop. Smith recalled locking the trailer when he left for Memphis. When he returned, the deadbolt was broken, and the back door was open. Missing from the trailer were Smith’s four rifles, a briefcase, and two radio scanners.

¶ 3. Smith testified that earlier that day, Kirkwood, who is acquainted with Smith, came by the trailer alone, in need of gasoline money and looking for work. Kirk-wood was driving a blue and grey van. Smith informed Kirkwood that he was going to Memphis but would be back “later on,” and gave Kirkwood ten dollars. While in Memphis, Smith received a telephone call from Kirkwood asking where Smith was and when he would return to the trailer. Reginald Smith, Smith’s nephew, testified that on October 11, he saw someone driving a blue and grey van near his uncle’s trailer.

¶ 4. Also around October 11, Roy Banks, who lives in Clarksdale, Mississippi, awoke to find his blue and grey 1991 GMC Safari van missing. Banks stated he purchased the vehicle several years earlier for $8,000. His wife’s cousin saw “some guy” driving the van in the area; so he called the police.

¶ 5. Officer Steven Poer, with the Clarksdale Police Department, received a dispatch call on October 11 to be on the lookout for Banks’s missing blue and grey van. Officer Poer saw the van being driven by Kirkwood in Clarksdale; so Officer Poer turned on his blue lights and sirens. Kirkwood did not pull over, and a high-speed chase ensued. Officer Poer testified the van reached speeds between 80 and 100 miles per hour. Kirkwood drove the van in the middle of the road, ignoring traffic signals, and nearly colliding with a tractor-trailer. Eventually, Kirkwood stopped the van, exited it, and ran into the woods, where law enforcement officers pursued him on foot. He was found hiding in a field and arrested shortly thereafter. Inside the van were four rifles, a briefcase, and some radio scanners, which Smith later identified as his. Officer Vincent Ramirez took photographs of the items, which were entered into evidence. Officer Poer testified that the only person inside the van, other than Kirkwood, was a woman. She was taken to the police station but was released because she could not eommuni-cate with law enforcement as she had a hearing impairment.

¶ 6. In November 2007, a Coahoma County grand jury returned a four-count indictment against Kirkwood for burglary, fleeing a police officer, possession of firearms by a convicted felon, and grand larceny. He was charged as a habitual offender. In January 2008, a two-day jury trial was held in the Coahoma County Circuit Court. Officer Ramirez, testifying for the State, claimed to have personal knowledge that Kirkwood was a prior convicted felon in Mississippi as he had served as an investigator in the prior case. The defense offered to stipulate to the status of Kirk-wood as a prior convicted felon. However, the State requested submission of a judgment and notice of criminal disposition into evidence, dated February 2004, where Kirkwood pleaded guilty to burglary of a building and was sentenced to seven years in the custody of the MDOC. A bench conference ensued. Over the objection of the defense to their relevancy, these documents were entered into evidence.

¶ 7. After the State rested its case, the trial court denied the defense’s motion for a directed verdict on all four counts. Kirkwood then testified in his own defense. His version of the events of October 11 are as follows. A friend picked him up in the blue and grey Safari van that morning with two other individuals. Kirkwood said his friend had had the van for a week. They all went to Smith’s trailer to buy crack cocaine. He described Smith as a “friend.” Kirkwood purchased the drugs from Smith, smoked them, and returned to Smith’s trailer to buy more. When Smith was not there, Kirkwood called him to see when he would return. Two of his friends became impatient and went into the trailer “to get the dope,” against Kirkwood’s advice. Kirkwood claimed he then walked down the street while his friends entered the trailer. He saw his friends exit the trailer “with a blanket with something in it.” Kirkwood said that during the high-speed chase, he was not driving, and that his three other companions were in the van with him. He claimed that he ran from the police on foot because he panicked and was paranoid from drug usage, and he wanted to dispose of the crack cocaine in the woods. He denied touching any of the items that were stolen from Smith’s trailer, contending that his prints would not be on them.

¶ 8. During cross-examination, the State queried Kirkwood about the fact he never mentioned in his statement to police about going to Smith’s trailer to buy drugs. But, Kirkwood claimed he was “telling the truth now.” Also, he admitted that he never attempted to get his companions, who were allegedly at the scene, to testify on his behalf. However, Kirkwood complained that he gave law enforcement the names of the two individuals whom he claims were responsible for the burglary, but allegedly, the police failed to investigate them. Kirkwood maintained his innocence regarding all of the charges. The prosecution also asked Kirkwood if he was a convicted felon, and Kirkwood responded that he had “committed a lot of crimes.” The prosecutor asked him to “list a few for us.” After Kirkwood responded that he had “committed a few burglaries,” his counsel objected. The court ruled that Kirkwood, however, had “opened the door” and overruled the objection. Upon continued questioning, Kirkwood thereafter cited numerous prior convictions in Florida for burglary, aggravated assault, and felony fleeing. After both parties finally rested, the defense renewed its motion for a directed verdict, which was denied.

¶ 9. During the jury instruction conference, Kirkwood requested a circumstantial-evidence instruction because he claimed three of the four charges had no direct evidence of his guilt. The trial court judge found the State had used direct proof on at least a portion of all four charges and denied the instruction. The defense also objected to the State’s amendment of its instruction to add “dwelling” before the word “house” regarding the elements of burglary of a dwelling house. The judge overruled the defense’s objection and granted the instruction.

¶ 10. On the morning of the second day of trial, the judge met with the prosecutor, defense counsel, and Kirkwood in chambers. It was brought to the judge’s attention that the prosecutor had failed to disclose that the State’s witness, Smith, had recently pleaded guilty to three counts of sale of cocaine and one count of possession of cocaine. The State did not apprise the defense of this fact until the end of the first day of trial, after both parties had rested. When the judge asked why the information had not been disclosed, the prosecutor stated that “it just didn’t occur to me to bring it up” and that he was unaware Kirkwood’s testimony would include allegations of a drug sale. The judge commented that the defense should have been made aware of the convictions sooner. He found the information “highly probative” in light of Kirkwood’s testimony regarding Smith’s sale of drugs, and expressed his concern about Mississippi Rule of Evidence 609. The defense moved for a mistrial or, in the alternative, a proposed resolution reached by the parties wherein Smith would be recalled to the stand for the limited purpose of cross-examination by the defense about his prior convictions. The defense further noted that, as part of the agreed resolution, “any error would be waived.” The court denied the mistrial but allowed the recall of Smith. The defense briefly cross-examined Smith, who admitted to pleading guilty to the drug charges.

¶ 11. The jury returned a verdict of guilty on all four counts. At the sentencing hearing, the court determined that Kirkwood was a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007); therefore, he received the maximum sentence for each count and is ineligible for parole or probation.

¶ 12. Kirkwood filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which was denied. He now appeals.

ANALYSIS OF THE ISSUES

¶ 18. Kirkwood raises eight issues on appeal. For the sake of judicial efficiency, we shall discuss related issues together.

1. Admission of Kirkwood’s Prior Felony Convictions

¶ 14. Kirkwood raises two issues regarding the admission of his prior felony convictions. First, he argues that the trial court erred in allowing the State to admit into evidence documents related to Kirk-wood’s prior Mississippi felony conviction of burglary of a building in order to prove he was a felon, even when the defense offered to stipulate to that fact during Officer Ramirez’s testimony. Second, Kirk-wood claims the trial court misapplied Mississippi Rule of Evidence 609 when Kirkwood testified about his prior felony convictions during his cross-examination. Specifically, Kirkwood argues that the trial court failed to perform a balancing test regarding the probative and prejudicial value of such testimony, and that he did not “open the door” for such testimony, as the trial judge ruled.

¶ 15. This Court’s review of the admission of evidence is limited. The standard of review for the admission or exclusion of evidence is an abuse of discretion. Williams v. State, 991 So.2d 593, 597(¶ 8) (Miss.2008) (citing Brown v. State, 969 So.2d 855, 860(¶ 13) (Miss.2007)). Therefore, “a trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse [the] ruling.” Id. (quoting Shaw v. State, 915 So.2d 442, 445(¶8) (Miss.2005)).

a. Prior Felony Conviction Admitted Duriny Officer Ramirez’s Examination

¶ 16. Evidence of one of Kirkwood’s prior felony convictions, which occurred in Coahoma County, Mississippi, was admitted during the State’s direct examination of Officer Ramirez in order to prove Kirk-wood was a felon. The following colloquy occurred:

BY MR. KIRKHAM [COUNSEL FOR THE STATE]: You also stated that you were familiar with the defendant. Are you aware if the defendant has ever been convicted of a felony crime before?
OFFICER RAMIREZ: Yes, sir.
BY MR. SHACKLEFORD [COUNSEL FOR THE DEFENDANT]: And we will so stipulate that he has.
BY MR. KIRKHAM: Your Honor, the State would still submit what has been marked S-5(A) and S-5(B), a judgment and notice of criminal disposition.
BY MR. SHACKELFORD: May we approach the bench, Your Honor?
BY THE COURT: You may.

A bench conference followed. The defense counsel objected to the admission of the criminal disposition document for the conviction of burglary of a building, claiming it was irrelevant, but initially, the defense had “no objection” to the admission of the judgment. When asked by the judge if he had any additional objections, the defense counsel stated: “Yes. Only that we have stipulated and it is simply cumulative and has no bearing, has no relevance.” The judge then overruled the objection and admitted both documents into evidence.

¶ 17. The State claims the defense did not make a contemporaneous objection to Officer Ramirez’s testimony about Kirk-wood’s prior Mississippi felony conviction; therefore, the issue is waived. The record shows that while defense counsel did not immediately object to the question of how Officer Ramirez knew Kirkwood, defense counsel immediately offered to stipulate that Kirkwood was a convicted felon, rather than pursuing the details of the conviction. During the bench conference, while defense counsel did not initially object to the judgment of the prior conviction entered into evidence, he made a subsequent general objection to the admission of both documents, after again stating the defense would stipulate to that fact.

¶ 18. On appeal, Kirkwood relies on Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) for the proposition that since he offered to stipulate to his prior conviction, the specific nature of that crime, burglary of a building, did not need to be admitted into evidence and, thus, divulged to the jury, since it was similar to one of Kirkwood’s current charges, burglary of a dwelling. Old Chief held that the trial court abuses its discretion if it rejects the offer to stipulate and admits the full record of a prior judgment, when the name or nature of the prior offense may taint the verdict by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction. Id. at 174, 117 S.Ct. 644. In Old Chief, the trial court allowed the prosecution to present evidence of the defendant’s prior assault conviction to prove that he was a prior convicted felon in possession of a firearm. The decision turned on the fact that the defendant moved to stipulate that he was a prior convicted felon and thereby exclude any mention of his previous conviction. Id. at 186, 117 S.Ct. 644.

¶ 19. Kirkwood also cites Sawyer v. State, 2 So.3d 655, 660(¶ 28) (Miss.Ct.App. 2008), where this Court found facts identical to those in Old Chief. In Sawyer, the defendant, Charlie Sawyer, was charged with armed robbery and possession of a firearm by a convicted felon. Id. at 656(¶ 5). Sawyer moved to sever the charges or, in the alternative, to stipulate to his two prior felony convictions for armed robbery, so the jury could not infer that he was now guilty of armed robbery because of his two previous convictions for armed robbery. Id. at 658(¶ 13). This Court found that the trial court abused its discretion by either not severing Sawyer’s two counts or by making the prosecution accept Sawyer’s stipulation to prior felony convictions. Id. at 661(1130). This Court applied Mississippi Rule of Evidence 403, and similar to Old Chief, we held that the probative value of the prior armed robbery-convictions was “substantially outweighed by the danger of unfair prejudice because the jury would use Sawyer’s prior convictions as evidence in considering” his current armed robbery charge. Id. at 661(¶28) (citing M.R.E. 403). Accordingly, this Court reversed the judgment of the trial court and remanded the case for a new trial. Id.

¶ 20. Additionally, Kirkwood cites Williams for the same proposition. In Williams, the Mississippi Supreme Court found the trial court erred when it denied the defendant’s offer to stipulate to his prior conviction, but unlike Sawyer, the court found the error harmless in light of the overwhelming evidence of guilt. Id. at 606(¶ 43). Williams was charged with armed robbery, kidnapping, and possession of a firearm by a convicted felon. Id. at 596(111). He offered to stipulate to his prior conviction for armed robbery, arguing that introduction of this prior offense to prove the possession of a firearm by a felon charge would unfairly prejudice the jury to convict him of the armed robbery charge, citing Old Chief. Id. at 604(¶ 36). The trial court disagreed and denied Williams’s motion, but the court granted Williams’s limiting instruction to the jury, presumably explaining that the prior conviction should be considered only to determine the guilt for the possession of a firearm charge. Id. at 606(¶ 41). In finding the trial court’s denial of the offer to stipulate erroneous, the supreme court cited Old Chief, noting that the charge to which Williams offered to stipulate, armed robbery, was basically the same as the federal charge in Old Chief. Id.

¶ 21. In the case at bar, we note that this admission of a prior conviction was not used to impeach a witness under Mississippi Rule of Evidence 609 (as were the other felony convictions which will be discussed below). Instead, the prosecution was using Officer Ramirez’s testimony and the subsequent admission of court documents to prove Kirkwood’s status as a prior convicted felon for the felon in possession of a firearm charge, as in Old Chief, Sawyer, and Williams. Pursuant to the record, there was no pretrial motion to sever or stipulate, only the offer to stipulate made by defense counsel during the aforementioned colloquy. Nor was there a limiting jury instruction offered by the defense. We also note that at trial, defense counsel did not cite Old Chief or argue that the particular information regarding the prior crime would be unduly prejudicial; he just stated the prior conviction was “not relevant.” Of course, this prior conviction was very relevant to prove that Kirkwood was a prior felon for the felony fleeing and a felon in possession of a firearm. He did not object on the ground of prejudice because of the similarity of the prior crime to the current crime. However, our supreme court has stated that the prosecution must articulate a reason to deny a defendant’s offer to stipulate, showing why the probative value is not outweighed by the possible prejudice. Williams, 991 So.2d at 606(¶ 42). Thus, it was incumbent upon the prosecution to show a lack of prejudice in this case, which it did not do.

¶ 22. We find the trial court abused its discretion in not accepting Kirkwood’s offer to stipulate. While counsel did not stress the similarity of the prior crime to the present crime, the court had before it the documents stating the nature of the prior crime. Once the judge became aware of the similar nature of the prior conviction, he should have accepted Kirk-wood’s stipulation. However, in Williams, the Mississippi Supreme Court held that such error may be deemed harmless when the accused’s conviction is supported by overwhelming evidence. Id. at 606(¶43).

¶ 23. The Mississippi Supreme Court, citing to the United States Supreme Court for authority, has stated that harmless error does not require automatic reversal of the conviction. Tran v. State, 962 So.2d 1237, 1246-47 (¶¶ 36-37) (Miss.2007) (citing Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). The Supreme Court held:

Trial and appellate courts have the duty to be fair, not only to the defendant, but to the State as well. Harmless-error analysis is often necessary to prevent unfair prejudice to the State, and the State is certainly prejudiced where convictions are reversed based on errors which do not affect the substantial rights of the parties.
....
Harmless-errors are only those “which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless.... ”

Id. (internal citations omitted). Additionally, errors involving a defendant’s constitutional rights “may be deemed harmless beyond a reasonable doubt where the weight of the evidence against the accused is overwhelming.” Clark v. State, 891 So.2d 136, 142(¶29) (Miss.2004) (quoting Riddley v. State, 777 So.2d 31, 35(¶ 11) (Miss.2000)). When conducting a harmless-error analysis, this Court has a “duty to review the record de novo in order to determine the error’s effect.” Tran, 962 So.2d at 1247(¶ 37) (citing Arizona v. Ful-minante, 499 U.S. 279, 295, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)).

¶ 24. Here, after a thorough review of the record, we find the trial court’s denial of Kirkwood’s offer to stipulate to his prior felony for burglary of a building was harmless error in light of the overwhelming weight of the evidence pointing toward Kirkwood’s guilt of this charge. The deadbolt lock to Smith’s trailer was found broken, and the back door was open upon Smith’s return. Kirkwood had called Smith to find out the time of his return from Memphis. Officer Poer testified he saw a van matching the description and tag number of a stolen blue and grey van in the vicinity. While Kirkwood testified that the real culprits were driving the van and escaped on foot, Officer Poer stated Kirkwood was driving the van. Kirkwood refused to pull the van over for Officer Poer, led the officer on a high-speed chase, and then attempted to evade him on foot. Office Poer testified that found inside the van were several rifles, a briefcase, and some scanners; these items were the same items Smith had reported missing from his trailer. He also testified that the only other person in the van was a hearing-disabled female. In light of the overwhelming weight of the evidence, we find the trial court’s error in refusing to accept Kirkwood’s offer to stipulate was harmless.

b. Admission of Prior Felony Convictions During Kirkwood’s Testimony under Mississippi Rule of Evidence 609(a)(1)(B)

¶ 25. Kirkwood also claims that the trial court erred in requiring him to testify during his cross-examination about his prior felony convictions in Florida because of their prejudicial nature. During Kirkwood’s cross-examination by the State, the following colloquy took place:

BY MR. KIRKWOOD: I didn’t touch the guns period. If they took the prints they would have found Earnest Woods’s prints on the gun; not my prints. If they had took [sic] the prints, if they followed procedure.
BY MR. KIRKHAM [COUNSEL FOR
THE STATE]: You’re an expert on police procedure now?
A: No sir. I know that much, sir.
Q: [Y]ou are a convicted felon; are you not?
A: Yes, sir, I am.
Q: In fact, you’ve committed burglary before; haven’t you?
A: I’ve committed a lot of crimes. I was a drug addict.
Q: I’m sorry?
A: I committed a great deal of crimes from doing drugs, sir.
Q: What kind of crimes?
A: All kinds.
Q: Well, why don’t you list a few for us?
A: I committed a few burglaries.
BY MR. SHACKELFORD [COUNSEL FOR THE DEFENDANT]: I object to this. I don’t think that going into his prior crimes—
BY THE COURT: — I’m going to overrule. He opened it up.
BY MR. KIRKHAM: And where was that?
BY MR. KIRKWOOD: That was in Florida.
Q: In Florida. Any other crimes in Florida aside from burglaries?
A: No, sir.
Q: No? You never committed an aggravated assault.
A: Yes, I did. Yes.
Q: You did. You’ve also been convicted of fleeing before; haven’t you?
A: Yes, sir.
Q: Seven different convictions in Florida for burglary. Is that right?
Q: One for aggravated assault, another for burglary of a dwelling here, and Anally another felony fleeing in Florida. Does that about sum it up?
A: Yes, sir.

Kirkwood argues the trial court erred in failing to conduct an on-the-record balancing test of the probative value of the evidence weighed against its prejudicial effect under Mississippi Rule of Evidence 609(a)(1)(B). Kirkwood also contends that he did not “open the door” to this examination of his prior convictions, as the trial judge determined.

¶ 26. Mississippi Rule of Evidence 609(a)(1) allows the introduction of prior crimes for the limited purpose of attacking the credibility of a witness. Before the evidence of a prior conviction is introduced, the court must determine “that the probative value of admitting this evidence outweighs its prejudicial effect to the party....” M.R.E. 609(a)(1)(B). In Peterson v. State, 518 So.2d 632, 636 (Miss.1987), the Mississippi Supreme Court held that pursuant to Rule 609, the trial court is required to make this determination on the record “before admitting the impeachment evidence of a party’s prior conviction.” The Peterson court listed the following factors the trial court is to consider when weighing the probative value of the acts against their prejudicial effect: (1) the impeachment value of the prior crime, (2) the point in time of the conviction and the witness’s subsequent history, (3) the similarity between the past crime and the charged crime, (4) the importance of the defendant’s testimony, and (5) the centrality of the credibility issue. Peterson, 518 So.2d at 637.

¶ 27. In the instant case, the trial judge did not perform an on-the-record balancing test, as required by Peterson; he rejected the defense’s general objection outright. We also note that the defense did not request a Peterson balancing test at the time, nor did the defense object to the lack of one at the time or in the post-trial motions. Defense counsel did not object to the line of questioning until after Kirk-wood had testified that he was a convicted felon, who had committed “a lot of crimes .... all kinds,” and admitted he had “committed a few burglaries.”

¶ 28. The State contends that Kirkwood waived this issue because he did not specifically raise it before the trial court. We agree with the State to the extent that Kirkwood waived the error up to the point of the objection. It is well established that the failure to make a contemporaneous objection waives the error on appeal. Smith v. State, 797 So.2d 854, 856(¶7) (Miss.2001) (citing Walker v. State, 671 So.2d 581, 597 (Miss.1995)).

¶ 29. Kirkwood’s counsel did not promptly object to this line of questioning until after Kirkwood had admitted to several burglaries. We do not agree with the trial judge’s ruling that Kirkwood “opened the door” to this line of questioning either during direct or cross-examination. Kirk-wood did, however, bring up the subject of his prior convictions by complaining that if law enforcement had followed proper procedure and taken his fingerprints, they would have known he did not touch any of the stolen items-specifically, the guns.

¶ 30. According to Peterson, the trial judge should have halted the line of questioning once Kirkwood objected and then conducted a balancing test. However, the supreme court has specifically ruled that even when the trial judge errs in not conducting an on-the-record Peterson analysis and, thus, erroneously admits evidence of prior felonies, the contested testimony can constitute harmless error because of the overwhelming weight of the evidence against the accused. DeLoach v. State, 722 So.2d 512, 520(¶ 34) (Miss.1998). The DeLoach court explains that the inquiry is “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Id. (quoting Chapman, 386 U.S. at 24, 87 S.Ct. 824). Further, it “is not whether the jury considered the improper evidence or law at all, but rather, whether that error was ‘unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ ” Id. (quoting Yates v. Evatt, 500 U.S. 391, 403, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991)).

¶ 31. We have such a situation here. We note that prior to the defense counsel’s objection, Kirkwood had already admitted to “a lot of crimes” including “a few burglaries.” Of the two additional crimes to which he testified following the objection, only one, felony fleeing, is similar to any of the current crimes for which Kirkwood was prosecuted. However, due to the overwhelming weight of the evidence presented to the jury for this charge, the error is harmless. Officer Poer saw Kirk-wood driving the stolen van in Clarksdale. Officer Poer tried to pull Kirkwood over, but he did not stop. Officer Poer testified a high-speed chase ensued and was followed by a foot chase. Kirkwood was finally apprehended in a field. The weight of the evidence against Kirkwood on the fleeing charge was overwhelming.

2. Sufficiency and Weight of the Evidence of Grand Larceny

¶ 32. Kirkwood contends that the State did not present sufficient evidence that the value of the 1991 Safari van was $500 or more, thereby requiring his conviction of grand larceny be reversed and rendered. Further, he claims his conviction for grand larceny is against the overwhelming weight of the evidence. Kirk-wood filed a motion for a JNOV or, in the alternative, a new trial, which was denied by the trial court. However, Kirkwood did not specifically raise an issue about the value of the van in his motion. The trial court also denied directed verdicts both at the end of the State’s case-in-chief and after both parties finally rested.

¶ 33. A motion for a directed verdict and a JNOV both challenge the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). If the facts and inferences “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” this Court must reverse and render. Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). However, if the evidence is such that, “ ‘having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ the evidence will be deemed to have been sufficient.” Id.

¶ 34. A motion for a new trial disputes the weight of the evidence. Id. at 844(¶ 18). This Court will disturb a verdict only “when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). This Court will review the evidence in the light most favorable to the verdict. Id.

¶ 35. Kirkwood only contests the value of the van for the crime of grand larceny in this issue. Under Mississippi Code Annotated section 97-17-41 (Rev.2006), a person is guilty of grand larceny for “taking and carrying away, feloniously, the personal property of another” with “the value” of $500 or more. Considering the evidence in the light most favorable to the State, the jury could find this element beyond a reasonable doubt. Kirkwood argues that the State did not meet this burden of proof because the “value” of the van presented at trial was not the market value at the time of the crime, but the purchase price when the' owner bought it. Thus, the jury had to speculate as to its market value, and there was not sufficient evidence to find it worth $500. He contends the market value of the van would be below $500, because vehicles depreciate greatly over time, and this van was in extreme disrepair.

¶ 36. While we agree that the State did not present any direct evidence as to the value of the van, and the amount of money paid for the vehicle is not evidence of its market value at the time of the crime, we find that this argument is without merit. The owner of the van testified he had purchased the van “several years ago” for $8,000. He testified he was still driving the van at the time of the trial, and it had “a good motor and transmission.” While the two photographs of the van that were entered into evidence do not show that the van is in pristine condition, a jury could certainly infer from the photographs and the owner’s testimony that the van would be worth at least $500.

¶ 37. This Court made a similar ruling in Smith v. State, 881 So.2d 908, 910-11(¶ 11) (Miss.Ct.App.2004), where we affirmed a conviction of grand larceny when there was no direct testimony of the value of certain truck rims. Instead of direct evidence of the market value of the rims, the victim’s father testified to the amount he paid to purchase the rims, and this Court found that sufficient. Id. In the instant case, a reasonable, fair-minded juror could find beyond a reasonable doubt that the van was worth at least $500, and that Kirkwood was guilty of grand larceny of the van. Officer Poer testified he saw Kirkwood driving the van which had been reported as stolen, and when law enforcement stopped the van, Kirkwood exited the van and ran into the woods. Furthermore, we cannot say that upholding Kirkwood’s conviction of grand larceny is so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice. Accordingly, we find that this issue is without merit.

3. Jury Instructions

¶ 38. Kirkwood argues the trial court erred in denying the defense a circumstantial-evidence jury instruction and a peremptory jury instruction regarding the burglary of a dwelling charge. The standard of review for jury instructions is well established:

In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. There is no error “if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law.”

Rubenstein v. State, 941 So.2d 735, 784-85 (¶ 224) (Miss.2006) (internal citations omitted). The standard of review for peremptory instructions is the same as for motions for a directed verdict and a JNOV, which all challenge the sufficiency of the evidence. Easter v. State, 878 So.2d 10, 21 (¶ 36) (Miss.2004) (citing Jefferson v. State, 818 So.2d 1099, 1110-11(¶ 30) (Miss.2002)). The standard of review for the sufficiency of the evidence was discussed in the previous issue; so it will not be repeated here.

a. Denial of Kirkwood’s Request for a Circumstantial-Evidence Jury Instruction

¶ 39. Kirkwood bases his argument on the colloquy in chambers during the jury-instruction conference, wherein defense counsel argued that three of the four charges were proven with circumstantial evidence. For the burglary charge, Kirkwood claims that there is only circumstantial evidence related to the identity of the perpetrator. Regarding the felony fleeing charge, Kirkwood concedes there is direct proof. For the felon in possession of firearms charge, Kirkwood argued the circumstantial-evidence portion of proof was that he had no knowledge the firearms were in the van, and there was direct evidence of his lack of knowledge. Finally, for the grand larceny charge, Kirkwood argued there is only circumstantial evidence he was in possession of the vehicle, and while the jury could infer that he stole it, that is not direct evidence. On appeal, Kirkwood apparently concedes there is direct evidence for the felon in possession of firearms charge, as he makes no argument in his brief for this charge; so, the only crimes at issue are burglary and grand larceny.

¶40. The long-standing rule regarding circumstantial-evidence jury instructions is that “[w]here all of the evidence tending to prove the guilt of the defendant is circumstantial, the trial court must grant a jury instruction that every reasonable hypothesis other than that of guilt must be excluded in order to convict.” Manning v. State, 735 So.2d 323, 338(¶ 25) (Miss.1999) (quoting Givens v. State, 618 So.2d 1313, 1318 (Miss.1993)). “Circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist. Conversely, eyewitness testimony is thought of as direct evidence. Direct evidence may also consist of a confession by a defendant, including the defendant’s admission to a person other than a law enforcement officer.” Id. A circumstantial-evidence instruction is required “only when the prosecution can produce neither an eyewitness nor a confession/statement by the defendant.” Hughes v. State, 983 So.2d 270, 278(¶26) (Miss.2008) (quoting Rubenstein, 941 So.2d at 785 (¶ 225)). This Court has further noted that direct evidence that a crime was committed, without direct evidence that the defendant committed the crime, is not enough to defeat a circumstantial-evidence instruction. Turner v. State, 945 So.2d 992, 1002(¶ 33) (Miss.Ct.App.2007) (citing Price v. State, 749 So.2d 1188, 1194(¶ 16) (Miss.Ct.App.1999)).

¶ 41. Kirkwood argues that since portions of the burglary and grand larceny charges involve circumstantial, and not direct, evidence, a circumstantial-evidence jury instruction would have been proper. He fails to recognize that all of the evidence of the crime must be circumstantial to warrant this jury instruction. It is well established that a “circumstantial evidence jury instruction is not required unless on the central elements of the offense ‘the evidence for the prosecution is wholly circumstantial.’” Starks v. State, 798 So.2d 562, 565(¶ 10) (Miss.Ct.App.2001) (quoting Keys v. State, 478 So.2d 266, 267 (1985)). “[T]he State’s case is not wholly circumstantial when there is a mix of direct and circumstantial evidence.” Long v. State, 934 So.2d 313, 317(¶ 17) (Miss.Ct.App.2006) (citing Sheffield v. State, 749 So.2d 123, 126(¶ 12) (Miss.1999)). Therefore, “[t]he existence of any direct evidence eliminates the need for a circumstantial evidence instruction.” Starks, 798 So.2d at 566(¶ 13) (quoting Sullivan v. State, 749 So.2d 983, 992(¶ 20) (Miss.1999)) (emphasis added).

¶ 42. In the instant case, there was direct evidence of the burglary of Smith’s dwelling and the grand larceny of the van. Kirkwood testified that his version of the events was his companions picked him up in the van and went to Smith’s trailer to buy drugs. They later returned to the trailer to buy more drugs, but Smith was not home. Kirkwood claimed he told his friends not to enter the trailer, but they did anyway. They exited with the trailer with “a blanket with something in it.” Kirkwood testified he had walked down the street, and his friends picked him up, and they then continued smoking crack. Although Kirkwood claimed he was not driving the van and his three other friends were with him during the high-speed chase, Officer Poer gave eyewitness testimony that Kirkwood was driving the van; there was only one other individual in the van — the woman; and stolen property was found inside the van once it was stopped. Accordingly, each of these charges have portions of direct evidence, thus a circumstantial-evidence jury instruction would not have been appropriate. We find no error committed by the trial court in denying Kirkwood’s request for one.

b. Denial of Kirkwood’s Request for a Peremptory Instruction

¶43. Kirkwood claims the trial court “erred in denying defense counsel’s peremptory instruction when the State failed to provide sufficient evidence that the building in question was a dwelling house.” However, according to the record, Kirkwood did not request a peremptory instruction; he merely objected to the State’s attempt to amend its own instructions (S-l), renamed C-10 after amendment by the trial court, which gave the elements for each of the four counts in the indictment. The State requested that they add the word “dwelling” before the word “house” in the part of the instruction describing the elements of burglary of a dwelling house. The judge had no objection to the amendment because the language more closely tracked the indictment, but defense counsel objected, explaining that he did not. “think that [the] house was used as [Smith’s] dwelling. I object to the redundance, if nothing else. It is more peremptory so I would object to that.” Apparently, defense counsel felt the addition of the word “dwelling” would make the instruction peremptory. The final pertinent language of the jury instruction read: “As to Count I, if you find from the evidence in this case beyond a reasonable doubt that: (1) a dwelling house located at 944 Oak Ridge in Friars Point, Mississippi, was used by W.C. Smith as his dwelling ... then you shall find the Defendant ... guilty of Burglary of a Dwelling in Count I.” The judge promptly overruled the defense’s objection.

¶ 44. Kirkwood argues that the State presents no evidence that Smith’s trailer was actually his “dwelling house” under the pertinent statute, Mississippi Code Annotated section 97-17-23 (Supp.2009), which states:

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

Kirkwood maintains that the trailer does not fit the requirement of a dwelling house under the statute because it was not Smith’s permanent residence, and Smith was not residing there when the burglary occurred.

¶45. The law regarding this statute is clear that the structure broken into must be used as a residence at the time of the crime. Wilkerson v. State, 724 So.2d 1089, 1092-93 (¶¶ 17-18) (Miss.Ct.App.1998). The material consideration of whether a place is considered a dwelling house is the intention of the residents. Id. at 1092(¶ 17) (citing Robinson v. State, 364 So.2d 1131, 1134 (Miss.1978)). The victim’s presence in the house at the time of the burglary is not required to convict under the statute. Id. at 1093(¶ 18). A temporary absence by the residents from the dwelling, even for a long duration, does not deprive the structure of its status as a dwelling house if they have the intent to return and live there. Carr v. State, 770 So.2d 1025, 1029(¶ 14) (Miss.Ct.App.2000) (citing Course v. State, 469 So.2d 80, 82 (Miss.1985)). Furthermore, “a person may simultaneously have two dwellings subject to burglary and sometimes reside with his family in one and sometimes in the other. The breach of one of them in the absence of his family would still be burglary.” Washington v. State, 753 So.2d 475, 477(¶ 9) (Miss.Ct.App.1999) (quoting Gil- lum v. State, 468 So.2d 856, 859 (Miss.1985)).

¶ 46. In this case, Smith admitted that he owns another home on Walnut Street, and he does not sleep at the trailer all of the time, but “[s]ometimes ... most every other night.” He stated he also uses the trailer for an office and a shop. His daughter actually owns the trailer, and he does not claim it as a homestead exemption, but he owns the land it is on. He keeps clothes and personal belongings at the trailer, and while he did not sleep there the night before the trial, he intends “to go back there” at some point.

¶ 47. Kirkwood relies on Course, where the owner of the house went to a nursing home in August, and her house was burglarized in October. Course, 469 So.2d at 81. Yet, her personal possessions remained in the house, and she intended to return to it once her health improved. Id. at 82. The supreme court found the owner’s house maintained the status of a dwelling during her stay in the nursing home. Id. In the instant case, the jury could have reasonably found Smith resided in both his Walnut Street home and in the trailer. While the trailer had other purposes as a shop and office, this fact did not prevent the trailer from being a dwelling. He had personal possessions at the trailer and the intent to live there, even if not full time. We find sufficient evidence to show the trailer was Smith’s “dwelling house” under section 97-17-23; thus, there was no error in the trial court’s grant of the State’s amendment to the jury instruction at issue.

4. Cumulative Error

¶48. Kirkwood argues he was denied his constitutional right to a fair trial because of the cumulative effect of the alleged errors at trial. He claims that these errors cannot be considered harmless. Specifically, he cites the admission of his prior convictions both during Officer Ramirez’s testimony and his own, as well as the lack of a circumstantial-evidence jury instruction.

¶ 49. Kirkwood is correct in stating that the cumulative-error doctrine stems from the harmless-error doctrine. Ross v. State, 954 So.2d 968, 1018 (¶ 138) (Miss.2007) (citing M.R.C.P. 61). Further, individual errors, even though not reversible in themselves, may combine with other errors to cause reversible error, where the cumulative effect of the errors deprives the defendant of a fundamentally fair trial. Id. (citing Byrom v. State, 863 So.2d 836, 847(¶ 13) (Miss.2003)). Relevant factors to consider in determining whether an error was harmless or prejudicial in order to evaluate a claim for cumulative error include “whether the issue of innocence or guilt is close, the quantity and character of the error, and the gravity of the crime charged.” Id.

¶ 50. In this case, the issue of innocence or guilt was not close. There was overwhelming evidence Kirkwood was guilty of all the charges. The errors regarding the admission of Kirkwood’s prior felonies were harmless. Finally, Kirkwood’s crimes were not particularly grave — they were not crimes of violence against individuals. We conclude that neither of the errors would have violated Kirkwood’s right to a fair trial.

CONCLUSION

¶ 51. We find no error justifying reversal in this case. Therefore, we affirm Kirkwood’s convictions and sentences.

¶ 52. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF COUNT I, BURGLARY OF A DWELLING HOUSE, AND SENTENCE OF TWENTY-FIVE YEARS; COUNT II, FELONY FLEEING, AND SENTENCE OF FIVE YEARS; COUNT III, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF TEN YEARS; AND COUNT IV, GRAND LARCENY, AND SENTENCE OF TEN YEARS, AS A HABITUAL OFFENDER, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J„ CONCURS IN PART AND IN THE RESULT.

      . Kirkwood also admitted to being a drug addict.

      . Mississippi Rule of Evidence 609(a)(1) states that "[f]or the purpose of attacking the character for truthfulness of a witness,” evidence that a nonparty witness has been convicted of a felony shall be admitted, subject to Mississippi Rule of Evidence 403, if the court determines the probative value outweighs its prejudicial effect.

      . The court noted that immediately following the announcement of the jury’s verdict, Kirk-wood escaped the custody of the sheriff as he was being escorted out of the courtroom and, therefore, "voluntarily absent[ed]" himself from the courthouse and sentencing proceedings.

      . Mississippi Rule of Evidence 403 states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....”

      . Woods was allegedly one of the individuals with Kirkwood in the van who went to Smith’s trailer.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Michael W. PRUITT, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CP-01716-COA.
    Court of Appeals of Mississippi.
    June 1, 2010.
    Rehearing Denied Nov. 2, 2010.
    Certiorari Denied Feb. 3, 2011.

      Michael W. Pruitt, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court:

¶ 1. Michael W. Pruitt pleaded guilty in the Circuit Court of Marshall County to the crimes of sexual battery, aggravated assault, and kidnapping. He was sentenced to life in prison for sexual battery, twenty years for aggravated assault, and thirty years for kidnapping, with the sentences to run consecutively in the custody of the Mississippi Department of Corrections (MDOC). Thereafter, Pruitt filed a motion for post-conviction relief in the trial court, arguing that his guilty pleas were involuntary and that he received ineffective assistance of counsel. The trial court denied Pruitt’s motion. Aggrieved, Pruitt now appeals that denial. Finding no error, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 14, 2006, Pruitt was indicted by a Marshall County grand jury for two counts of sexual battery, one count of touching a child for lustful purposes, one count of aggravated assault, and one count of kidnapping. On March 19, 2007, Pruitt filed a petition to enter a guilty plea to one count each of sexual battery, aggravated assault, and kidnapping.

¶ 3. During the guilty plea proceeding, the State presented the underlying facts to be proven if his case had gone to trial. The State would prove that Pruitt kidnapped a six-year-old girl, fondled her, and attempted to have sexual intercourse with her. The State would prove that Pruitt took the child to an abandoned house where he shot her once in the head. After questioning, Pruitt confessed to the crime and led police to the victim, who was found alive. Pruitt acknowledged to the trial court that the information alleged by the State was in fact true.

¶ 4. The trial court informed Pruitt of his constitutional rights and of the applicable sentencing range for the crimes. Pruitt acknowledged that he understood the consequences of his guilty pleas. The trial court asked Pruitt whether his pleas were voluntary, and Pruitt responded in the affirmative. The trial court also asked Pruitt whether he was satisfied with his trial counsel’s representation, and Pruitt responded in the affirmative. After determining that there was a factual basis for Pruitt’s pleas and that the pleas were intelligently and voluntarily made, the trial court accepted the guilty pleas. Pruitt was sentenced to life for sexual battery, twenty years for aggravated assault, and thirty years for kidnapping, with the sentences to run consecutively in the custody oftheMDOC.

¶ 5. On May 9, 2008, Pruitt filed a motion for post-conviction relief, and there were no affidavits attached to the motion. On September 24, 2008, the trial court denied Pruitt’s motion, finding that he was not entitled to the requested relief. Aggrieved, Pruitt timely filed his notice of appeal.

ANALYSIS

¶ 6. This Court will not disturb the trial court’s denial of a motion for post-conviction relief absent a finding that the trial court’s decision was clearly erroneous. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999). However, issues of law are reviewed de novo. Id.

I. Involuntary Guilty Plea

¶ 7. Pruitt argues that his guilty pleas are invalid because they were not made intelligently and voluntarily. Specifically, Pruitt argues that he was under the influence of anti-depressants when the crime took place and during the guilty plea proceeding, which prevented him from making intelligent and voluntary guilty pleas. Pruitt also argues that he was coerced to plead guilty by his trial counsel and the district attorney, who Pruitt alleges arrested his family and threatened to charge them as accessories after the fact if he did not plead guilty.

A. Anti-depressants

¶ 8. For the first time on appeal, Pruitt provided this Court with affidavits from three family members. Those family members state that Pruitt was under the influence of anti-depressants and that the medication prevented him from making intelligent choices. The law is clear that this Court is limited to the trial’s court record when reviewing a claim on appeal. Gonzales v. State, 915 So.2d 1108, 1110 (¶ 5) (Miss.Ct.App.2005). Thus, because Pruitt failed to provide these affidavits to the trial court, we cannot consider the affidavits on appeal. Id.

¶ 9. Pruitt provided the trial court with a copy of two prescriptions for anti-depressants, which were filled on June 20, 2006. Besides this, Pruitt failed to provide the trial court with any other evidence by way of affidavits or medical records to support his argument that the medication affected his competency. See Magee v. State, 752 So.2d 1100, 1101-1102 (¶ ¶ 4-8) (Miss.Ct.App.1999) (finding that more was required than the defendant’s statement that he was once in special education classes to raise concerns regarding his competency to enter an intelligent and voluntary guilty plea).

¶ 10. In addition, the plea colloquy reflects that Pruitt was not taking any medication at the time he entered his guilty pleas. The trial court asked Pruitt, “[a]re you under the influence of alcohol or drugs or any other substance that might impair or affect your ability to understand what is going on here today?” Pruitt responded, “No, sir.” The trial court then asked Pruitt the following: “Do you suffer from any type of disability, physical, mental or otherwise that might impair or affect your ability to understand what is going on here today?” Again, Pruitt responded, “No, sir.”

¶ 11. “Trial judges are entitled to place great weight upon a defendant’s initial plea under oath.” Templeton v. State, 725 So.2d 764, 767 (¶ 10) (Miss.1998). Based on our review of the plea colloquy, we find that the trial court made sufficient inquiry into Pruitt’s mental competency, and there was no evidence to suggest that Pruitt lacked the ability to appreciate the effects of his guilty pleas. Thus, we find that his argument is without merit.

B. Coercion

¶ 12. Next, Pruitt argues that he did not willingly enter his guilty pleas because he was coerced by his trial counsel and the district attorney. As previously mentioned, Pruitt alleges that the district attorney arrested his family and threatened to charge them as accessories after the fact if he did not enter the guilty pleas. Pruitt wishes to rely on his family members’ affidavits in support of his argument. However, as previously held, we will not consider these affidavits on appeal because Pruitt failed to submit these affidavits before the trial court. See Gonzales, 915 So.2d at 1110 (¶ 5).

¶ 13. The plea colloquy belies Pruitt’s assertion that he was coerced into entering his guilty pleas. During the guilty plea proceeding, the trial court asked Pruitt whether anyone had threatened him, intimidated him, coerced him, or forced him to plead guilty. Pruitt responded, “No, sir.” As previously held, the trial court is entitled to place great weight upon the sworn testimony of a defendant. See Templeton, 725 So.2d at 767 (¶10). When reviewing Pruitt’s motion for post-conviction relief, the trial court only had the plea colloquy to consider, and there was no evidence to suggest that Pruitt’s guilty pleas were involuntary. Thus, we find that this argument is without merit.

II. Ineffective Assistance of Counsel

¶ 14. Pruitt argues that he received ineffective assistance of counsel. There is a strong but rebuttable presumption that trial counsel was competent and that trial counsel performed within the wide range of reasonable conduct expected from counsel. Busby v. State, 994 So.2d 225, 227 (¶ 8) (Miss.Ct.App.2008). To rebut this presumption, the petitioner must show that: (1) his trial counsel’s performance was deficient, and (2) the trial counsel’s deficiency prejudiced his defense. Id. If the petitioner pleads guilty on the advice of his trial counsel, the petitioner must prove that his trial counsel committed “unprofessional errors of substantial gravity,” without which he would not have pleaded guilty. Cole v. State, 918 So.2d 890, 894 (¶ 10) (Miss.Ct.App.2006).

A. Suspension from the Practice of Law

¶ 15. First, Pruitt argues that his trial counsel failed to tell him that he was suspended from practicing law in Tennessee. Pruitt maintains that if he had known about his trial counsel’s suspension, he would have requested the trial court to appoint him another attorney.

¶ 16. It is true that in February 2007, John Louis Dolan, Jr., Pruitt’s trial counsel, was suspended from the practice of law in Tennessee. See Miss. Bar v. Dolan, 987 So.2d 921, 922 (¶ 2) (Miss.2008). Later, The Mississippi Bar sought reciprocal discipline. Id. at 922-23 (¶ 3). On February 5, 2008, the supreme court suspended Dolan from the practice of law in Mississippi for one year and placed him on one year of probation. Id. at 924 (¶ 15).

¶ 17. Mississippi Rule of Discipline 11(c)(1) provides, in pertinent part, that a suspended attorney shall “notify all clients of his ... suspension ... and his consequent inability to act as an attorney after the effective date of his ... suspension ....” (Emphasis added). In a similar case, this Court found that a petitioner’s newly-acquired knowledge of his trial counsel’s suspension from the practice of law was not a ground for relief because: (1) trial counsel was not suspended until after the petitioner’s plea hearing, and (2) trial counsel’s suspension was not related to the petitioner’s case. Gatlin v. State, 932 So.2d 67, 69 (¶ 11) (Miss.Ct.App.2006). In the present case, Pruitt entered his guilty plea on March 19, 2007, long before Dolan’s suspension in Mississippi. Furthermore, Pruitt fails to articulate how he was adversely affected by Dolan’s suspension in Tennessee. Based on the foregoing, we find Pruitt’s argument is without merit.

B. Other Claims of Ineffective Assistance of Counsel

¶ 18. Next, Pruitt makes miscellaneous claims of ineffective assistance of counsel. Pruitt argues that his trial counsel failed to investigate the case. “For failure to investigate to become ineffective assistance of counsel, the defendant must state with particularity what the investigation would have revealed and how it would have altered the outcome.” Robinson v. State, 964 So.2d 609, 614 (¶ 21) (Miss.Ct.App.2007) (citing Triplett v. State, 840 So.2d 727, 731 (¶ 11) (Miss.Ct.App.2002)). Pruitt has failed to do so.

¶ 19. Pruitt argues that his trial counsel failed to interview witnesses. However, Pruitt failed to provide the trial court with a list of those witnesses, them affidavits, or them proposed testimonies to support his claim. See Steen v. State, 868 So.2d 1038, 1040 (¶ 10) (Miss.Ct.App.2004).

¶ 20. Pruitt also argues that his trial counsel failed to test the State’s evidence. However, based on our review of the plea colloquy, the State provided the factual basis in support of Pruitt’s guilty plea, and Praitt affirmed that the evidence was true. By pleading guilty to the charges against him, Pruitt “admitted his guilt and waived proof by the State.” Williams v. State, 752 So.2d 477, 479 (¶ 6) (Miss.Ct.App.1999) (citations omitted).

¶ 21. Moreover, Pruitt contends that his trial counsel failed to speak with him about the case. He maintains that he was not aware of the charges against him until they were read in open court. Pruitt claims that his trial counsel coerced him into pleading guilty. He alleges that his trial counsel knew that he was taking antidepressants, and trial counsel instructed him to withhold the information regarding the medication from the trial court. Pruitt also claims that his trial counsel knew that the State planned to use the results of a mental evaluation to further implicate him in the crime.

¶ 22. The plea colloquy is contrary to Pruitt’s sundry claims. As previously mentioned, the trial court asked Pruitt whether he was satisfied with his trial counsel’s representation and whether his plea was voluntary. Pruitt answered both questions in the affirmative. In addition, Pruitt’s trial counsel voir dired Pruitt during the guilty plea hearing. During the voir dire, Pruitt affirmed the following: he was satisfied with his trial counsel’s representation; trial counsel visited him while he was incarcerated; they discussed the case; and Pruitt had an opportunity to discuss the case with his family. Pruitt also affirmed that he had given his trial counsel the names of witnesses, and his trial counsel contacted those witnesses. Pruitt affirmed that he had access to discovery and that his trial counsel explained the evidence to him. Pruitt also stated that it was his decision alone to enter the guilty pleas.

¶ 23. Based on our review of the record, the trial court thoroughly examined whether Pruitt’s guilty pleas were voluntary and whether Pruitt was satisfied with his trial counsel’s representation. As previously stated, the trial court was entitled to rely upon Pruitt’s initial pleas made under oath. See Templeton, 725 So.2d at 767 (¶ 10). Pruitt has failed to present any evidence besides his bare assertions to support his claims of ineffective assistance of counsel, and this is simply not enough. See Minchew v. State, 967 So.2d 1244, 1249 (¶ 15) (Miss.Ct.App.2007). Based on the foregoing, we find that Pruitt’s claim of ineffective assistance of counsel is without merit.

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

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


author: BARNES, J„ CARLTON, J.,

text:
    Brian E. WIKEL, Appellant v. Bethany J. Wikel MILLER, Appellee.
    No. 2009-CA-00106-COA.
    Court of Appeals of Mississippi.
    June 22, 2010.
    Rehearing Denied Oct. 19, 2010.
    Certiorari Denied Feb. 3, 2011.

      James C. Helveston, Michelle Dean Easterling, West Point, attorneys for appellant.
    Carrie A. Jourdan, Rebecca Anne Younger, attorneys for appellee.
    Before KING, C.J., BARNES and MAXWELL, JJ.
   BARNES, J„

for the Court:

¶ 1. Brian E. Wikel appeals the denial of his motion for modification of child custody by the Oktibbeha County Chancery Court. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Brian Wikel and Bethany Wikel Miller were divorced on January 7, 2005. The couple share joint legal custody of their two minor children — Zachary, born on September 1, 1998, and Garrett, born on February 26, 2001. Primary physical custody was awarded to Bethany, subject to Brian’s specified visitation rights. The property settlement provided that Brian would have alternating weekend visitation and one night of midweek overnight visitation. At the time of the divorce, both parents were living in Starkville, Mississippi, with Brian living in the former marital home. Bethany subsequently moved to West Point, Mississippi, where she taught high school. Brian worked at a nearby Sara Lee® factory in West Point. However, when the West Point factory closed down, Brian moved to Florence, Alabama, in May 2007, to continue his employment with Sara Lee®. Bethany and her current husband, Will Miller (Will), now live in Nesbit, Mississippi, where she works as a counselor at a nearby correctional facility.

113. Shortly after the divorce, the children began experiencing emotional and behavioral problems. Zachary was exhibiting angry outbursts and becoming physically aggressive with his younger brother, who was very repressed with his emotions. Concerned about this behavior, Bethany took the boys to a counselor, Melanie Benson. Ms. Benson counseled Zachary and Garrett from March 2005 to July 2007, during which time she met with them on approximately twenty-two occasions. In her initial assessment, Ms. Benson diagnosed Zachary with adjustment disorder, with mixed anxiety and depressed mood. She identified the stressors as being the parent’s divorce, difficulty with the visitation schedules, and tension between his parents. Since Zachary’s problems were affecting Garrett, Ms. Benson also had Garrett participate in counseling and diagnosed him with adjustment disorder, unspecified.

¶ 4. Although Bethany did not consult Brian upon initiating the counseling, Brian later participated in several counseling sessions. During their therapy, the children mentioned their mother’s male friends on a couple of occasions. In the summer of 2006, Brian related his concern regarding Bethany’s bringing men to the house as he felt that this behavior confused the children. Ms. Benson advised Bethany to limit the children’s contact with any of her romantic partners. Ms. Benson’s advice was based upon the fear that the children might form attachments to the male figures, which could lead to abandonment issues if the relationships did not work out. However, Bethany told Brian not to interfere in her personal business, and she did not appear to follow Ms. Benson’s suggestions. In two subsequent sessions, Brian and Bethany specifically discussed incidents where her boyfriend, Will, had spent the night in the home while the children were present.

¶5. On August 24, 2006, Brian filed a complaint for modification of the final judgment of divorce. Specifically, he requested modification of the primary physical custody of the children from Bethany to Brian, citing a substantial change in circumstances, namely, Bethany’s inappropriate and immoral behavior. He further claimed that Bethany’s refusal to communicate with him and allow him to participate in his sons’ activities was adversely impacting the children. Alternatively, Brian requested that the chancellor modify the existing visitation schedule to provide more extended visitation periods. Bethany, who married Will a few days after Brian filed his complaint, filed an answer and a counter-claim for modification on October 26, 2006. In it, she denied Brian’s allegations and sought an increase in child support, the right to claim an income tax deduction on both children, and a modification of the visitation schedule. She also sought sole legal and physical custody of the children. On November 13, 2006, Brian filed an answer denying Bethany’s requested relief and a motion to amend his complaint for modification.

¶ 6. A trial was held on September 8, 2008, and October 29, 2008, on the motions. In her testimony, Bethany admitted to the court that, while she was still married to Brian, she had engaged in sexual intercourse with a minor student, eleven years her junior, at the high school where she was employed as a teacher. She further admitted that she had let her boyfriend, Will, who was now her husband, spend the night on a couple of occasions while the children were present in the home. However, in its opinion and judgment entered on December 3, 2008, the chancery court denied Brian’s motion for modification, finding that the children were doing well in school; the children’s emotional problems were primarily a result of the divorce transition; and Bethany had been remarried for two years. The chancellor also denied Bethany’s request for an increase in child support. However, due to the relocation of both Bethany and Brian, the chancellor did modify the existing visitation schedule.

¶ 7. On December 10, 2008, Brian filed a motion for reconsideration of the custody issue or, in the alternative, to revise the specified visitation periods. On December 12, 2008, Bethany filed a motion to reconsider the request for modification of child support. The chancellor, in an order filed on December 22, 2008, overruled Bethany’s motion and partially overruled Brian’s motion as to the issue of modification of child support. The chancellor granted Brian’s motion in regard to an amendment to Brian’s visitation schedule. On January 15, 2009, Brian filed a notice of appeal regarding the modification of child custody.

Whether the chancellor’s denial of the modification of child custody was manifestly wrong and/or clearly erroneous.

¶ 8. This Court’s standard of review in cases involving child custody is limited. Connelly v. Lammey, 982 So.2d 997, 999 (¶ 2) (Miss.Ct.App.2008). “[I]n order to reverse the chancellor’s findings, the chancellor must be manifestly wrong, clearly erroneous, or have applied an erroneous legal standard.” Id. (citing Hensarling v. Hensarling, 824 So.2d 583, 586 (¶ 7) (Miss.2002)). Therefore, a chancellor’s findings of fact “may only be disturbed if they are not supported by substantial, credible evidence.” Ellis v. Ellis, 952 So.2d 982, 989 (¶ 15) (Miss.Ct.App.2006) (citing Johnson v. Gray, 859 So.2d 1006, 1012 (¶ 32) (Miss.2003)). However, we review issues of law de novo. Balius v. Gaines, 958 So.2d 213, 218 (¶ 8) (Miss.Ct.App.2005) (citation omitted).

i. Material Change of Circumstances

¶ 9. Brian argues that the children’s emotional problems, their exposure to Bethany’s boyfriends, and Bethany’s reluctance to communicate with Brian warrant a change in primary physical custody. Further, he notes that it was stipulated at trial that Brian is a good father who has a great relationship with his children. In order to obtain a modification of child custody, the non-custodial parent must prove: “(1) that a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child.” Powell v. Powell, 976 So.2d 358, 361 (¶ 11) (Miss.Ct.App.2008) (citing Giannaris v. Giannaris, 960 So.2d 462, 467-68 (¶ 10) (Miss.2007)).

¶ 10. In determining whether a material change in circumstances has occurred, we must look at the “totality of the circumstances.” Minter v. Minter, 29 So.3d 840, 847 (¶ 26) (Miss.CtApp.2009) (citing Mabus v. Mabus, 847 So.2d 815, 818 (¶ 8) (Miss.2003)). This Court has stated that:

While numerous factors may go into the initial consideration of a custody award, ... only parental behavior that poses a clear danger to the child’s mental or emotional health can justify a custody change. It is only that behavior of a parent which clearly posits or causes danger to the mental and emotional well-being of a child (whether such behavior is immoral or not), which is sufficient basis to seriously consider the drastic legal action of changing custody.

Lambert v. Lambert, 872 So.2d 679, 684 (¶ 22) (Miss.Ct.App.2003) (internal citations and quotations omitted). However, “[t]he ultimate consideration in matters of child custody is the best interest of the child.” McCraw v. Buchanan, 10 So.3d 979, 984 (¶ 18) (Miss.Ct.App.2009).

¶ 11. To support his claim that custody should be modified, Brian points to instances of Bethany’s immoral conduct such as her sexual encounter with a high-school student and the presence of male friends in her home with the children present. Since Bethany’s incident of sexual misconduct with a high-school student was not known to Brian prior to the divorce proceedings, the chancellor did take the matter into consideration when examining the issue of custody modification. See Powell, 976 So.2d at 363 (¶ 22) (a court may sometimes consider pre-divorce circumstances in order to “[t]o determine whether a change of circumstances has occurred since the original decree”). Bethany admitted at trial that she knew that the misconduct was “wrong,” which, she explained, is why it only happened once. The record further shows that Bethany dated two men after her divorce — Will and Cain Cannon. She testified that she only dated Cain for a couple of weeks and that he only spent the evening at the house when the boys were not home. However, Bethany did admit that she allowed her (then) boyfriend, Will, to spend the night at her home while the children were present. Bethany and Will further testified that they had sexual relations on one occasion while the children were home; however, Bethany noted that the children were asleep.

¶ 12. “[Any] resolution of factual disputes is always a matter entrusted to the sound discretion of the chancellor.” Minter, 29 So.3d at 850 (¶ 36) (citing Carter v. Carter, 735 So.2d 1109, 1114 (¶ 19) (Miss.Ct.App.1999)). Due to a chancellor’s actual presence in the courtroom, he is “best equipped to listen to the witnesses, observe their demeanor, and determine their credibility.” Id. Here, the chancellor had the discretion to determine the weight of certain evidence, especially when considering Ms. Benson’s testimony versus the content of her patient records. Further, the chancellor had the discretion to consider that, at the time of the hearing, Bethany had been married for two years; therefore, he found that any poor judgment on Bethany’s part was less likely to occur in the future. Nothing in the record shows that Bethany’s rare lapses of judgment caused any emotional harm to her children. Although the boys told Ms. Benson about the presence of Bethany’s male friends, Brian and Ms. Benson were significantly more upset about this fact than the children. Brian complains that Bethany failed to cooperate with Ms. Benson’s recommendation to limit the children’s exposure to her male friends. This Court acknowledges that there was one instance where Garrett, the youngest child, stated that he did not think that it was morally wrong for an unmarried couple to spend the night together. As Garrett further explained to Ms. Benson, he and Zachary were not “married” and they spend the night together. This response showed that the children were not capable of understanding sexual issues. Also, Ms. Benson’s notes never demonstrated that the boys expressed any displeasure or negative feelings regarding the issue of Will staying overnight at the home.

¶ 13. Brian also asserts that Bethany failed to keep him informed about the welfare and activities of the children, especially as it pertained to school and counseling. There is no dispute that Bethany retained the counselor, Ms. Benson, without consulting Brian. Further, she changed counselors two years later when she felt that the boys were not progressing. However, Bethany was proactive in obtaining counseling for the boys upon a showing of behavioral problems immediately following the divorce, and her actions promoted the children’s best interests. While we agree that Brian should have been informed in a more prompt fashion, once so informed, Brian was permitted to participate in the counseling, which he did on occasion. In regard to school activities and grades, Brian has the right to obtain any of the children’s school records and information, and the record reflects that he has taken full advantage of this right. Thus, we find nothing in the record to show that this argument warrants a change in custody.

ii. Adverse Effect on the Children

¶ 14. Brian also contends that the children’s need for counseling is an indication that a modification of custody is warranted. He claims that Ms. Benson testified that the children’s emotional problems were causally related to Bethany’s actions with overnight male friends and her refusal to communicate with Brian. However, the testimony to which Brian refers is merely an opinion by Ms. Benson that the boys, especially Zachary, felt some “pressure” not to discuss Will in front of their father and that this pressure added to the children’s stress. The record clearly shows that the majority of the children’s emotional problems were a result of the divorce, namely the transition of going back and forth between Bethany’s and Brian’s homes, and Zachary’s distress that his father did not spend more quality time with them during visitation. In her testimony, Ms. Benson stated:

I think one of the main things was that [Zachary] seemed to be very angry, that he was causing difficulty between himself and his brother, Garrett, maybe behaviorally, and also with some aggression toward his brother. You know, the physical is what I think concerned her, because it was — the divorce, that was one thing that I concluded that it may be related to as far as that being one of the primary stressors, that there had been parental separation and divorce and the visitation schedule.

(Emphasis added). The counseling records do not reflect any negative feedback regarding their home life with Bethany or the presence of her two boyfriends after divorce, and the boys seemed to get along with Will. In fact, Ms. Benson’s notes from June 9, 2005, state that both boys “seem very pleased with interaction with Mother’s boyfriend.” She also testified at the hearing: “I think that there is a positive bond with [Bethany]. It is apparent and obvious with the children’s affection that they love her and that she loves them. They have a good disposition with Mr. Miller.” Will also testified that he was responsible for getting the boys to and from school every day.

¶ 15. Brian also claims that Bethany refused to cooperate with him on visitation and that this had an adverse effect on the children. Admittedly, “[[Interference with the exercise of custody can constitute a material change in circumstances.” White v. White, 26 So.3d 342, 349 (¶ 21) (Miss.2010). We observe that the record is replete with issues over visitation and must agree that this tension between the parents over visitation contributed to the boys’ emotional issues. However, many of the incidents were either minor disagreements on where to meet or involved Brian’s wanting the children outside of the visitation schedule. At the hearing, Ms. Benson testified that:

[T]here were instances when there would be a recommendation made that I perceived that Mrs. Miller may not want to cooperate specifically with Mr. Wikel on that matter, not that she wanted to intentionally cause harm to the children, that there was a lack of cooperation sometimes with visitation and everything was so rigid, that it made it hard to alleviate some of the pressure from the boys regarding visitation.

(Emphasis added). Furthermore, Bethany testified there had been occasions where Brian harassed her over visitation and was verbally abusive, which, she explained, was why she had failed to communicate effectively with him. As the chancellor capably addressed this issue with the imposition of a comprehensive visitation schedule, we find this issue does not warrant a reversal of the chancellor’s holding.

¶ 16. Lastly, Brian complains of an incident where five-year-old Garrett was permitted to shoot a loaded gun, with only Will’s seventeen-year-old brother for supervision. We agree that the hunting incident is, indeed, disconcerting and an extremely poor exercise of judgment on Bethany’s part. However, this was a single incident, and Bethany testified that she and Will were present on the hunting trip and located nearby. Therefore, while we would strongly advise Bethany against this type of lapse in judgment in the future, we do not find that this single incident requires a modification of the custody agreement.

¶ 17. The chancellor observed that both boys were doing well in school and were physically healthy. At the time of the hearing, Bethany and Will had been married for approximately two years and had moved the children to a new home near Olive Branch, Mississippi. Will and Bethany’s mother also testified that the boys were thriving in their new school and had established a good routine, such as playing in the park across the street from the house after school and then doing homework before dinner. Accordingly, based upon the totality of the circumstances, we cannot find that the chancery court erred in determining that no material change in circumstances had occurred resulting in an adverse effect on the children.

iii. Best Interests of the Children

¶ 18. We find no error in the chancellor’s failure to set forth any findings with respect to the :Albright factors as he found no material change in circumstances. See In re E.C.P. v. C.A.P.R., 918 So.2d 809, 825 (¶ 69) (Miss.Ct.App.2005) (“[w]hen considering a modification of child custody, the proper approach is to first identify the specific change in circumstances, and then analyze and apply the Albright factors in light of that change.”) (citing Thornell v. Thornell, 860 So.2d 1241, 1243 (¶ 6) (Miss.Ct.App.2003)).

CONCLUSION

¶ 19. “This Court gives great deference to a chancellor’s findings of fact.” Webb v. Drewrey, 4 So.3d 1078, 1081 (¶ 11) (Miss.Ct.App.2009) (citing Buford v. Lo-gue, 832 So.2d 594, 600 (¶ 14) (Miss.Ct.App.2002)). Furthermore, even if this court would have made different findings, we “will not substitute [our] judgment for that of the chancellor[.]” Carlson v. Matthews, 966 So.2d 1258, 1260 (¶ 6) (Miss.Ct.App.2007) (quoting Owen v. Owen, 798 So.2d 394, 397-98 (¶ 10) (Miss.2001)). Finding no error in the chancery court’s holding that no material change of circumstances existed to warrant a modification in custody, we affirm.

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

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J. DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, P.J., AND ISHEE, J.

CARLTON, J.,

Dissenting:

¶ 21. I respectfully dissent. In matters concerning protecting a child from danger, the judgment of the parent — and parenting skills — are extremely important. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983); A.T.K. v. R.M.K.W., 26 So.3d 1103, 1105 (¶ 10) (Miss.Ct.App.2009). Bethany Wikel Miller’s poor judgment is not in dispute. She admitted she engaged in a sexual relationship with a minor at the high school where she taught while she was still married to Brian Wikel. Bethany also rejected the advice offered by a counselor to assist in Zachary’s adjustment after his parents’ divorce. Brian further asserts that Bethany also interfered with his ability to participate in Zachary’s activities after the divorce, further adversely impacting Zachary.

¶ 22. In Riley v. Doerner, 677 So.2d 740, 744 (Miss.1996), the Mississippi Supreme Court held that “when the environment provided by the custodial parent is found to be adverse to the child’s best interest, and ... the non-custodial parent ... is able to provide an environment more suitable than that of the custodial parent, the chancellor may modify custody accordingly.” Additionally, we have held that “[w]hen considering whether a material change in circumstances has occurred, the court must examine the totality of the circumstances.” A.T.K., 26 So.3d at 1106 (¶ 11). In the present case, I find that the record reflects that Brian is able to provide a more suitable living environment for Zachary and Garrett than their current situation.

¶23. The Mississippi Supreme Court expressed that a child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons. Riley, 677 So.2d at 744. Therefore, I dissent.

LEE, P.J., AND ISHEE, J„ JOIN THIS OPINION.

      . No criminal charges were brought against Bethany as a result of this single incident.

      . Bethany filed a cross-notice of appeal on January 29, 2009. However, Bethany's brief addressed no additional claim other than the one raised by Brian.

      . We also observe that this constituted a misdemeanor pursuant to Mississippi Code Annotated section 49-7-20.1(2) (Supp.2009), which states that “[a] child under the age of twelve (12) must be in the presence and under the direct supervision of a licensed or exempt hunter at least twenty-one (21) years of age when the child is hunting.”

      . Albright v. Albright, 437 So.2d 1003 (Miss.1983).