author: BARNES, J.,

text:
    Ronald Dwight COLLINS, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-02102-COA.
    Court of Appeals of Mississippi.
    Sept. 11, 2012.

      Edmund J. Phillips Jr., Newton, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court:

¶ 1. A Neshoba County Circuit Court jury found Ronald Collins guilty of gratification of lust. The victim was Mary Smith, who was ten years old at the time. Collins was twenty-two years old. The trial judge sentenced Collins to fifteen years in the custody of the Mississippi Department of Corrections, with eight years to serve, seven years suspended, and five years of post-release supervision. Collins now appeals, raising issues regarding the weight and sufficiency of the evidence, the trial judge’s sustaining an objection by the State during the testimony of defense witness Paula Alford, and the admission of Collins’s confession into evidence. Finding no error, we affirm Collins’s conviction and sentence.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On the evening of February 26, 2010, Collins was driving back from diesel-mechanic school in Nashville, Tennessee, and Edward and Catherine Smith invited Collins to spend the night at their home in Neshoba County, Mississippi. Collins lived down the road from the Smiths. Collins had formerly dated Margaret Smith, Mary’s older sister, and often visited the Smiths’ house even after he broke up with Margaret. Mary’s mother, Catherine, treated Collins like her own son. On the evening at issue, Catherine sent a text message to Collins at about 10:45 p.m. stating Margaret was “getting high” with her boyfriend Wayne in the living room, presumably inviting Collins over. Collins arrived at the Smith’s house at approximately 2:00 a.m., welcomed by Edward, Mary’s father.

113. Earlier that evening, Mary had gone to sleep in the living room on the sectional L-shaped couch, while Margaret and her boyfriend Wayne had fallen asleep on separate recliners in the same room. Mary awoke to find Collins had arrived at the house, and had lain on the other end of the couch to sleep. Mary could not sleep and moved to Collins’s end of the couch, laying her head on his chest. During the course of the night, Mary woke up again and felt Collins’s hand touching her private parts below her waist. His hand was inside her pajama pants and underneath her underwear. She looked at Collins and told him she could not sleep. He was awake but did not respond. Mary then got up, went to her bedroom, and dressed for school early. She returned to the living room, went back to the couch, and lay down again with her head on Collins’s chest, wearing blue jeans with a belt and a top. She fell asleep, awaking the next morning to go to school.

¶ 4. After school that day, Mary told her other older sister Martha what had happened. Together, they told their mother, who told their father. Edward then confronted Collins on the telephone about the incident. Mary’s parents and grandmother then called law enforcement, and a warrant was issued for Collins’s arrest. Later that day Collins turned himself in to the Neshoba Police Department. Officer Ralph Sciple, an investigator for the Nesh-oba County Sheriffs Office, interviewed Collins and Mary that same day. He testified that he advised Collins of his Miranda rights, transcribed Collins’s confession, and had him sign it.

¶ 5. At trial, Mary testified that she had known Collins for six or seven years. She was not sure which of Collins’s hands touched her lower private parts, but he did not penetrate her. Mary’s mother testified that Mary’s behavior changed after the incident. Mary now sleeps with her and has nightmares. Mary also developed the habit of belting her pajamas around her waist. Additionally, she will not use the restroom near the living room if there are people in the house, instead using the restroom in her parents’ bedroom. After the incident, Mary went to counseling at the Wesley House Children’s Center in Meridian, Mississippi. She also received some counseling at school. Mary and her mother both testified that prior to the incident, they had no any animosity or ill will towards Collins.

¶ 6. Paula Alford, whose son is Collins’s long-time best friend, testified that Collins injured his left arm during service with the Marine Corps, resulting in nerve damage that would not heal. Having had surgery on the ligaments of this arm, Collins has no strength in that hand. Collins was discharged from the military and then enrolled in diesel-mechanic school in Nashville.

¶ 7. Officer Sciple testified about his interview with Collins on February 27. A conference was held outside of the presence of the jury regarding the admission of Collins’s waiver-of-rights form and confession statement, both of which were ultimately entered into evidence. Officer Sciple stated Collins was advised of his Miranda, rights and signed a waiver of those rights. Officer Sciple then interviewed Collins, wrote out the statement, and had Collins sign it in two places. Collins countered that he was not advised of his Miranda rights, and he was coerced into signing the confession. The trial judge found Officer Sciple more credible and admitted the two documents into evidence.

¶ 8. After a two-day trial, the jury returned a verdict against Collins of guilty as charged.

ANALYSIS OF THE LEGAL ISSUES

I. Sufficiency and Weight of the Evidence

¶ 9. Collins challenges the weight and sufficiency of the evidence. Specifically, he argues that the State did not prove beyond a reasonable doubt that when he touched Mary, he gratified his lust and indulged in “depraved licentious sexual desires.” Moreover, he claims that even if he did put his hand in Mary’s underwear, he did not realize he had done so, as he was sleeping.

¶ 10. A motion for a directed verdict and a motion for a judgment notwithstanding the verdict (JNOV) challenge the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). The critical inquiry is whether the evidence shows “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.” Id. (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). All evidence will be reviewed in the light most favorable to the State, and all credible evidence consistent with the defendant’s guilt will be accepted as true. McClain v. State, 625 So.2d 774, 778 (Miss.1993). “[RJeversal can only occur when evidence of one or more of the elements of the charged offense is such that ‘reasonable and fair minded jurors could only find the accused not guilty.’ ” Stewart v. State, 909 So.2d 52, 56 (¶ 16) (Miss.2005).

¶ 11. In contrast, a motion for a new trial challenges the weight of the evidence. Ivy v. State, 949 So.2d 748, 753 (¶ 21) (Miss.2007) (citing Sheffield v. State, 749 So.2d 123,127 (¶ 16) (Miss.1999)). The reviewing court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). The evidence will be “weighed in the light most favorable to the verdict.” Id. “Any factual disputes are properly resolved by the jury and do not mandate a new trial.” Moore v. State, 859 So.2d 379, 385 (¶26) (Miss.2003) (quoting McNeal v. State, 617 So.2d 999,1009 (Miss.1993)).

¶ 12. Collins was convicted under Mississippi Code Annotated section 97-5-23(1) (Rev.2006), which provides:

Any person above the age of eighteen (18), who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child’s consent ... shall be guilty of a felony....

We find the State presented sufficient proof of the elements of this crime.

¶ 18. Concerning the age elements, the proof is undisputed that Collins was twenty-two years old and Mary was ten years old at the time of the incident. Collins signed a confession stating he touched Mary’s private parts, even though he now claims that the confession was coerced. Mary consistently testified as to the criminal actions of Collins as well. Further, the testimony of her family members about what happened after the event are consistent with her own testimony. Additionally, Mary’s parents both testified as to certain behavioral changes in their daughter after the incident that would indicate sexual abuse.

¶ 14. Regarding the weight of the evidence, Collins attempted to east doubt on the testimony of the State’s witnesses by the testimony of Paula Alford. She testified that Collin’s left hand was injured during service in the Marines; therefore, he could not have touched Mary with that hand. However, Mary was not sure which of Collins’s hands touched her. It is well established that “the jury is the final arbiter of a witness’s credibility.” Morgan v. State, 681 So.2d 82, 93 (Miss.1996) (citing Harris v. State, 527 So.2d 647, 649 (Miss.1988)). The jury apparently found the State’s witnesses more credible. We cannot say that the guilty verdict is so contrary to the weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Therefore, the trial court did not err in denying Collins’s motions for a directed verdict and a new trial.

II. Alford’s Redirect Examination

¶ 15. Alford, the mother of Collins’s best-friend, testified for the defense. On cross-examination by the State, the following exchange occurred between the prosecutor and Alford:

Q. You don’t want to see' this young man go to prison, do you, Ms. Alford?
A. I don’t believe he did it.
Q. My question was: You don’t want to see him go to prison, do you? You can say, again, you don’t believe he did it, if you want to. Go ahead and answer the question, however you like.
A. (Pause)
[The Prosecutor]: I’ll withdraw the question.

The redirect examination by Collins’s attorney soon followed:

Q. You’ve gotten up here and made an oath to tell the truth?
[The Prosecutor]: Object, your Hon- or. Bolstering the witness.
By the Court: Sustained. There’s a presumption that she’s being truthful.
Q. Would you tell a lie in this Court for Ronald Collins, Jr.?
[The Prosecutor]: Object. Objection to—
By the Court: I’ll sustain the objection.

¶ 16. Collins argues that the State’s cross-examination implied that Alford lied on direct examination, and the two questions by defense counsel on redirect examination were relevant and thus proper. However, Collins maintains that the trial judge’s ruling sustaining the State’s objection appeared to find the redirect questions irrelevant, and the ruling was in error.

¶ 17. The standard of review for the admission and exclusion of evidence is an abuse of discretion. Therefore, “reversal is appropriate only when a trial court commits an abuse of discretion resulting in prejudice to the accused.” Ross v. State, 954 So.2d 968, 992 (¶ 44) (Miss.2007) (citing Irby v. State, 893 So.2d 1042, 1047 (¶ 20) (Miss.2004)). During the State’s cross-examination, Alford never answered the prosecutor’s question, ‘You don’t want to see this young man go to prison, do you?” The prosecution withdrew the question. It is difficult to understand how this unanswered, withdrawn question could “impeach” the witness, as Collins argues. Further, the prosecutor’s question was not of an “impeaching” nature, although it could properly have been used to show bias on the part of Alford under Mississippi Rule of Evidence 616. Usually, a witness is “impeached by showing statements made outside the court inconsistent with statements made on the witness stand.... ” Sims v. State, 313 So.2d 388, 391 (Miss.1975). Here, the prosecutor’s question does not necessarily imply, as Collins suggests, that Alford was lying in her direct examination testimony. Alford merely testified on direct about Collins’s arm injury, and that Collins had come to her house the night after the incident “afraid for his safety.” Therefore, Alford’s credibility was not impeached by the State’s question. We find no prejudicial effect to Collins. Accordingly, the trial judge did not abuse his discretion in sustaining the prosecutor’s objection.

III. Admission of Collins’s Confession

¶ 18. Collins’s final argument is that the trial court erred in admitting his confession into evidence, because it was involuntary. Collins claims that he was denied counsel during his interrogation; he was inexperienced in dealing with the criminal justice system; and he was forced to sign the confession under Officer Sci-ple’s threats. He also argues that the procedure of an interrogator’s hand-writing a confession that the accused signs violates the Due Process Clause of the Fourteenth Amendment.

II19. During the direct examination of State witness Officer Sciple, the State requested and was granted a conference outside of the presence of the jury over the admission of Collins’s waiver-of-rights form and confession. Officer Sciple and Collins testified during the hearing. Officer Sciple testified that he interviewed Collins alone in his office at the sheriffs department on February 27. Collins was advised of his Miranda rights and then signed a waiver-of-rights form. Officer Sciple proceeded to interview Collins about the incident and claimed Collins never asked for the questioning to stop or for an attorney. Collins testified that he requested and was denied a phone call to his mother while in custody, and that he was not advised of his Miranda rights. Additionally, Collins stated Officer Sciple did not allow him to read the statement, where he confessed to the crime, and “coerced” him to sign it, telling him that if he did not sign it, he was “going to jail for life.”

¶ 20. The prosecution has the burden of proving that the confession is voluntary beyond a reasonable doubt. Moore v. State, 933 So.2d 910, 919 (¶ 30) (Miss.2006) (quoting Morgan v. State, 681 So.2d 82, 86 (Miss.1996)). The burden is met, and a prima facie case established, by the testimony of an officer, or another person having knowledge of the facts, “that the confession was voluntarily made without any threats, coercion, or offer of reward.” Id. (quoting Chase v. State, 645 So.2d 829, 838 (Miss.1994)). The trial court sits as fact-finder when determining voluntariness of a confession, and its determination “will not be reversed unless manifestly wrong.” Id. (quoting Manix v. State, 895 So.2d 167, 180 (¶ 39) (Miss.2005)). The trial court determines the vol-untariness of the confession from the totality of the circumstances. Thomas v. State, 42 So.3d 528, 535 (¶ 24) (Miss.2010).

¶21. First, we note that the defense did not file a pretrial motion to suppress the confession; instead, at trial the prosecution requested and received a hearing outside of the presence of the jury on the admission of the confession during the State’s case-in-chief. The trial judge was presented with two contradicting versions of the interrogation: Officer Sciple’s and Collins’s. Officer Sciple claimed he properly Mirandized Collins, who knowingly and intelligently waived his rights. Collins never asked for a telephone call, and provided a confession to the crime. He signed a statement that was not the product of threats or coercion. In contrast, Collins stated he was denied a telephone call and never informed of his rights. Additionally, he claims he was threatened with jail time and coerced into signing the statement, which was improperly written by Officer Sciple and never read. However, as stated earlier, the trial judge has the right to decide which witness is more reliable in this situation, and he found Officer Sciple more credible. Collins’s waiver of rights and confession were found proper and voluntary, and thus admitted into evidence. The trial judge also did not believe that Collins’s Miranda rights had been violated. We cannot find error in this regard.

¶ 22. Collins also argues that the procedure of an officer transcribing a defendant’s statement violates the Due Process Clause. This argument is without merit. The Mississippi Supreme Court has found no error in the admission of confessions that were transcribed by a law enforcement officer and signed by the defendant, as long as the statements were voluntarily, knowingly, and intelligently made. See, e.g., Underwood v. State, 708 So.2d 18, 30-31 (¶¶ 37, 39) (Miss.1998); Chisolm v. State, 529 So.2d 630, 633-34 (Miss.1988).

CONCLUSION

¶ 23. For the above-stated reasons, the judgment of the Circuit Court of Neshoba County is affirmed.

¶ 24. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF GRATIFICATION OF LUST AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH SEVEN YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.

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

      . The names of the victim and her family have been changed to protect the identity of the victim.

      . At trial, Collins’s counsel did move for a directed verdict, but Collins’s post-trial motion did not request a JNOV.

      . Collins does not raise this specific issue on appeal, but after reviewing the record, we find the trial court did not abuse its discretion in finding that Collins had been apprised of his Miranda rights and that his waiver-of-rights form was valid.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Alphonso JONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00059-COA.
    Court of Appeals of Mississippi.
    Sept. 18, 2012.

      Alphonso Jones, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal involves a review of the Pearl River County Circuit Court’s summary dismissal of Alphonso Jones’s motion for post-conviction relief (PCR). In his PCR motion, Jones claimed the circuit court illegally sentenced him when it partially revoked his original sentence to a term of post-release supervision. The circuit court sentenced Jones to two years in the Intensive Supervision Program (ISP), colloquially known as “house arrest.” The circuit court further ordered that the remainder of Jones’s sentence would be on post-release supervision if Jones successfully served two years in the ISP. Conversely, Jones would have to serve the remainder of his sentence in the custody of the Mississippi Department of Corrections (MDOC) if he violated any of the terms and conditions of the ISP. Essentially, the circuit court attempted to automatically revoke Jones’s term of post-release supervision if the MDOC reclassified Jones from the ISP to traditional custody status. After careful consideration, we conclude that the circuit court committed reversible error when it summarily dismissed Jones’s PCR motion, because the circuit court’s sentencing order cannot operate within the bounds of Mississippi law. Specifically, the circuit court does not have the authority to revoke Jones’s post-release supervision while Jones is an “inmate” in the exclusive custody of the MDOC. Consequently, we reverse the judgment of the circuit court and render judgment for Jones.

FACTS AND PROCEDURAL HISTORY

¶ 2. In the immediate aftermath of Hurricane Katrina, Jones took merchandise from a Pearl River County business known as “the Roadrunner.” A bill of information charged Jones with looting. In May 2006, Jones pled guilty. The circuit court sentenced Jones to fifteen years in the custody of the Mississippi Department of Corrections (MDOC). However, the circuit court required that Jones only serve six months in MDOC custody. The circuit court ordered that Jones serve the remaining fourteen years and six months of his sentence on post-release supervision under Mississippi Code Annotated section 47-7-34 (Rev.2004). Because the circuit court gave Jones credit for the time that he had served in jail prior to pleading guilty, he was released from custody to begin serving his term of post-release supervision on the same day he pled guilty.

¶ 3. While Jones was on post-release supervision, he failed to report to his MDOC field officer. Consequently, the MDOC field officer filed an affidavit and requested that the circuit court revoke Jones’s post-release supervision. On April 22, 2009, Jones waived his right to a revocation hearing. Two days later, the circuit court revoked a portion of Jones’s post-release supervision. Specifically, the circuit court’s order of revocation of post-release supervision stated:

IT, THEREFORE, IS ORDERED AND ADJUDGED that the post-release [supervision] of [Jones] ought to be revoked[,] and it is hereby revoked.... [Jones] is hereby remanded into the custody of the Sheriff to await transportation to the [MDOC].
It is the sentence of the [c]ourt that the [p]ost-[r]elease [supervision of ... Jones is hereby revoked for a period of 2 years, and [the] revocation will be served under [t]he [ISP]. Upon completion of the [ISP] ... Jones will be released to finish the remainder of his sentence on [p]ost-[r]elease supervision. If ... Jones violates any terms or conditions of the [ISP] ... then ... Jones will be remanded into the custody of [t]he [MDOC] to finish the remainder of his sentence.

¶ 4. Sometime later, Jones violated the conditions of the ISP. Jones does not dispute that violation. The MDOC classification committee reclassified Jones, removed him from the ISP, and placed him in general custody. Under the language of the sentencing order, the MDOC concluded that Jones must serve the remaining fourteen years and six months of his sentence, Jones’s maximum discharge date is February 2, 2024.

¶ 5. On October 19, 2010, Jones filed a motion for reconsideration of his sentence. Jones argued that the circuit court had illegally sentenced him because the circuit court could not require that he complete the ISP as a condition of post-release supervision. The circuit court correctly treated Jones’s motion as a PCR motion. However, the circuit court found no merit to Jones’s argument. Accordingly, the circuit court summarily dismissed Jones’s PCR motion. Jones appeals. He does not contest the MDOC’s decision to reclassify him and remove him from the ISP. Instead, Jones challenges the validity of his resulting sentence of fourteen years and six months.

STANDARD OF REVIEW

¶ 6. A circuit court may summarily dismiss a PCR motion “[i]f it plainly appears from the face of the motion, any annexed exhibits[,] and the prior proceedings in the case that the movant is not entitled to any relief_” Miss.Code Ann. § 99-39-11(2) (Rev.2007). We will affirm the circuit court’s summary dismissal of a PCR motion if, after reviewing the PCR motion de novo, we conclude that the petitioner has failed to “demonstrate ‘a claim procedurally alive substantially showing denial of a state or federal right....’” Ivory v. State, 999 So.2d 420, 424 (¶ 9) (Miss.Ct.App.2008) (quoting Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999)). Because the legality of a sentence is a question of law, a de novo review of Jones’s sentence is required. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

¶ 7. Jones claims the circuit court erred when it summarily dismissed his PCR motion. Jones repeats his argument that the circuit court had illegally sentenced him by making successful participation in the ISP a condition of post-release supervision. Jones’s argument is based on the pre-amendment language of Mississippi Code Annotated section 47-5-1003(4) (Rev.2011). Prior to April 7, 2009, section 47-5-1003(4) provided that a sentencing court “may not require an offender to complete the [ISP] as a condition of ... post-release supervision.” However, effective April 7, 2009, the Mississippi Legislature amended section 47-5-1003(4) to read that a sentencing court “may not require an offender to complete the [ISP] during a term of ... post-release supervision.” The circuit court revoked Jones’s post-release supervision and sentenced Jones on April 24, 2009. Consequently, Jones’s argument that the circuit court illegally required that he complete the ISP as a condition of post-release supervision is moot. However, Jones has argued that his sentence is illegal, and the Mississippi Supreme Court has held that “where the appellant is proceeding pro se, the Court takes that fact into account so that meritorious complaints are not lost because [they are] inartfully drafted.” Ford v. State, 708 So.2d 73, 75-6 (¶ 12) (Miss.1998). “An argument that the sentence violates [the] law, either because it is clearly erroneous or because it is unredeemably ambiguous or incomplete, would be proper under the post-conviction[-]relief procedures.” Burns v. State, 933 So.2d 329, 331 (¶ 8) (Miss.Ct.App.2006).

¶ 8. When the circuit court partially revoked Jones’s post-release supervision, the circuit court sentenced Jones to two years in the ISP. The circuit court further ordered that following Jones’s initial two-year sentence, Jones would then serve the remaining twelve years and six months of his sentence on post-release supervision. Any confusion regarding Jones’s sentence stems from the circuit court’s conditional provision that Jones would have to serve his entire sentence in MDOC custody if he violated the ISP terms.

¶ 9. The conditional aspect of the circuit court’s sentence is logistically in opposition to the law because the circuit court cannot revoke Jones’s remaining term of post-release supervision based on Jones’s violation of the ISP terms. See Smith v. State, 742 So.2d 1146, 1148 (¶ 11) (Miss.1999) (holding that probation and suspension of sentence may not be revoked based solely on a violation or criminal offense that was committed before the offender was actually placed on probation). Similarly, Jones’s post-release supervision cannot be revoked for conduct that occurred before he was actually on post-release supervision.

¶ 10. Additionally, the circuit court has no authority over Jones while he is in the ISP. The ISP is an alternative custodial classification; an offender in the ISP is serving time “confined as a prisoner under the jurisdiction of the [MDOC] in the normally-understood [sic] sense of that term.” Lewis v. State, 761 So.2d 922, 923 (¶ 5) (Miss.Ct.App.2000). “In other words, an offender in the ISP is an inmate in the custody of the MDOC who is serving time on house arrest instead of being housed in a MDOC facility.” Ivory, 999 So.2d at 426 (¶ 15). An offender in the ISP is “under the full and complete jurisdiction of the [MDOC].” Miss.Code Ann. § 47-5-1008(3) (Rev.2011); See also Babbitt v. State, 755 So.2d 406, 409 (¶ 14) (Miss.2000) (holding a circuit court lacked jurisdiction to reinstate an offender’s sentence for a violation of the ISP that occurred while the offender was in the ISP). The circuit court could not sentence Jones as an inmate in the ISP and simultaneously sentence him to a concurrent term of post-release supervision. Said differently, Jones cannot be “released” on post-release supervision at the same time that he is an inmate. By way of analogy, a sentencing court could not revoke an offender’s post-release supervision because the MDOC reclassified that offender to a more restrictive custody status based upon that offender having received a Rule Violation Report.

Till. To summarize, the circuit court could not revoke Jones’s post-release supervision for conduct that occurred before Jones was actually on post-release supervision, and Jones could not have been released on post-release supervision until after he had been discharged from MDOC custody. Furthermore, the circuit court has no authority to revoke Jones’s post-release supervision while Jones is in MDOC custody. Consequently, the conditional aspect of the circuit court’s sentence is a nullity. Thus, the circuit court’s sentence must be interpreted as a sentence to two years in MDOC custody, with the remainder of Jones’s original sentence to be served on post-release supervision.

¶ 12. Therefore, we reverse the judgment of the circuit court and render judgment for Jones. Upon his discharge from custody, Jones will begin serving the remainder of his sentence on post-release supervision. If Jones thereafter willfully violates any condition of his post-release supervision, the circuit court may revoke all or part of Jones’s remaining sentence after providing Jones his constitutionally mandated due-process hearing.

¶ 13. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . As set forth in Mississippi Code Annotated section 97-17-65(2) (Rev.2011), the maximum sentence for looting is fifteen years in the custody of the MDOC.

      . The circuit court did not "suspend” any portion of Jones's sentence under Mississippi Code Annotated section 47-7-33(1) (Rev. 2004).

      .Five years of Jones's post-release supervision was "supervised" or "reporting" post-release supervision, and the remainder was "unsupervised” or "non-reporting” post-release supervision.

      . If Jones had to serve his two-year sentence day-for-day, it would have expired on April 24, 2011.


author: CARLTON, J.,

text:
    Jason Earl SANDERS a/k/a Jason Sanders a/k/a Jason E. Sanders, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01329-COA.
    Court of Appeals of Mississippi.
    Sept. 18, 2012.
    Leslie S. Lee, Jackson, Hunter Nolan Aikens, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before GRIFFIS, P.J., CARLTON and FAIR, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Jason Earl Sanders was convicted in the Washington County Circuit Court of the manufacture of methamphetamine. The trial court sentenced Sanders to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with five years to serve, followed by five years of post-release supervision, followed by five years of unsupervised probation.

¶ 2. Sanders is represented by the Mississippi Office of Indigent Appeals. Sanders’s appellate counsel filed a brief with this Court pursuant to Lindsey v. State, 939 So.2d 743 (Miss.2005), and stated that no arguable issues existed for appeal. Sanders’s appellate counsel also confirmed that he sent a copy of his brief along with correspondence informing Sanders that he found no arguable issues in the record to raise as error and that Sanders had a right to file a pro se brief to raise any perceived errors. A sufficient amount of time has passed, and we have received no pro se brief from Sanders. Upon review, we find no error and affirm.

FACTS

¶3. In September 2010, a grand jury before the Washington County Circuit Court indicted Sanders for the manufacture of methamphetamine, a Schedule II controlled substance, under Mississippi Code Annotated section 41-29-313 (Supp. 2011). Sanders’s trial subsequently commenced on May 17 and 18, 2011.

¶ 4. At trial, Lieutenant Evan Smith with the Washington County Sheriffs Department testified to patrolling an area of Washington County on December 10, 2009. While patrolling, Lieutenant Smith noticed a silver Buick parked on the side of Wilcox Road. The Buick was registered to Sanders. Sanders was seated in the driver’s seat, and Leslie Scott Walker was seated in the passenger seat. When approaching the vehicle, Lieutenant Smith noticed a strong fuel-like odor. Lieutenant Smith also noticed that the passenger, Walker, had some plastic bags, a plastic bottle, a can of “liquid fire,” and an empty Coleman fuel can in his lap or between his legs on the floorboard. Lieutenant Smith then saw Walker throw an item out of the car’s window. Lieutenant Smith detained Walker at the front of the Buick and retrieved the item that Walker threw from the car window, a plastic bottle, the contents of which were “bubbling.” Lieutenant Smith then detained Sanders, patted him down, and recovered six double-A lithium batteries from Sanders’s pocket. Lieutenant Smith called Sergeant Jimmy Branning, a narcotics agent with the Washington County Sheriffs Department, to come to the scene.

¶ 5. Sergeant Branning testified at trial. He testified that upon his arrival at the scene, he examined the plastic bottle and noticed that the bottle’s contents were “moving around” or “bubbling a little bit.” Sergeant Branning testified that the bottle appeared to be a meth lab. Sergeant Branning also looked inside the Buick and located the bottle of liquid fire on the passenger-side floorboard. Sergeant Branning collected samples of the contents of both the plastic bottle and the liquid-fire bottle and sent the samples to the state crime laboratory for testing. Sergeant Branning also collected the six lithium batteries found in Sanders’s pocket. Sergeant Branning testified that liquid fire contains sulfuric acid and is commonly used in the manufacture of methamphetamine. He further testified that lantern fuel and lithium strips from lithium batteries are also commonly used in the manufacture of methamphetamine.

¶ 6. Rob Reid, a forensic chemist with the Mississippi Crime Laboratory, testified that he concluded that the sample taken from the plastic bottle contained “a residue amount of ephedrine [or] pseudoephed-rine,” and the sample taken from the liquid-fire bottle contained “sulfuric acid.” Reid testified that ephedrine or pseu-doephedrine and sulfuric acid are commonly used in the manufacture of methamphetamine.

¶ 7. Walker, the passenger in Sanders’s car, also testified at trial. Walker testified that he and Sanders “had planned on making some crystal meth,” and that Sanders picked him up from his mother’s house on the day in question. Walker testified that he contributed the fertilizer, lye, and liquid fire. Walker explained that Sanders had a box of pseudoephedrine, and he asked Sanders to drive him to Walmart so that he (Walker) could get another box. According to Walker, he purchased another box of pseudoephedrine, and Sanders purchased lantern fuel and a pack of lithium batteries.

¶ 8. Walker testified that he and Sanders then went to Walker’s mother’s house to “mix it up,” and they later parked his car off of Wilcox Road to “filter it off’ and “blow it,” when Lieutenant Smith unexpectedly pulled up behind their vehicle. Walker acknowledged that he threw the bottle out of the window as Lieutenant Smith approached. According to Walker, Sanders participated in the whole process of making the methamphetamine.

¶ 9. After the State rested its case-in-chief but before Sanders testified, the State moved to exclude evidence that Sanders has a young child and that, prior to the incident at issue, Sanders suffered a stabbing during a robbery, leaving him disabled with difficulty walking. The State asserted that this evidence would only garner sympathy. Defense counsel argued that the evidence was relevant as to whether Sanders went into Walmart on the day in question. The circuit court noted that the evidence of Sanders’s stabbing and his resulting disabilities had previously come in through other witness testimony. Ultimately, the circuit court sustained the State’s motion as to evidence that Sanders had a young child, and stated, “We’ll just see how it goes with the [evidence of] disability.”

¶ 10. Sanders then testified on his own behalf. He denied participating or assisting Walker in the manufacture of the methamphetamine, and he claimed instead that he merely provided Walker with a ride. Sanders acknowledged driving Walker to Walmart in his car, but Sanders testified that only Walker went inside the store. Sanders further claimed no knowledge as to what Walker had in the Walmart bags except for the two lithium batteries that Walker gave him. Sanders admitted providing Walker a ride in his car to Walker’s mother’s house, but Sanders denied going inside the house. Sanders also claimed no knowledge of Walker’s actions once inside the house. Sanders testified that he failed to notice Walker take anything inside or bring anything outside of his mother’s house. Further, Sanders claimed that Walker wore a large coat that must have concealed the items. Sanders testified that Walker got back in the car after leaving his mother’s house and that Walker asked Sanders to take him across town. Sanders testified that when he pulled the car off of Wilcox Road in order to urinate, Lieutenant Smith pulled up behind them.

¶ 11. Sanders claimed that Walker bought the batteries at Walmart and gave him two of them to use in his family’s camera. Sanders denied having any pseu-doephedrine pills, and he claimed that he saw the plastic bottle for the first time when Walker threw it out of the window. Sanders testified that he smelled gas on Walker, but he did not find that unusual because Walker worked as a mechanic and often smelled of gas. Sanders wholly denied participating in Walker’s manufacture of methamphetamine that day.

¶ 12. At the conclusion of trial, the jury found Sanders guilty of the manufacture of methamphetamine. The trial court sentenced Sanders to fifteen years in the custody of the MDOC, with five years to serve, followed by five years of post-release supervision, followed by five years of unsupervised probation. Following a denial of his post-trial motions, Sanders now appeals.

DISCUSSION

¶ 13. In Lindsey, 989 So.2d at 748 (¶ 18), the Mississippi Supreme Court set forth the process that must be followed when appellate counsel for an indigent criminal defendant concludes no arguable issues exist on appeal. Specifically, the Lindsey court stated:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(l)-(4), (7); see also [Smith v.] Robbins, 528 U.S. [259,] 280-81, 120 S.Ct. 746, 145 L.Ed.2d 756 [ (2000) ] (stating that “counsel’s summary of the case’s procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.”).
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal.
(5)Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey, 939 So.2d at 748 (¶ 18) (internal citations and footnotes omitted).

¶ 14. Here, Sanders’s attorney indicated that he diligently and thoroughly scoured the record, searching for any arguable issues that could be presented in good faith on appeal, but he found none. Sanders’s attorney asserted that he specifically examined: (1) the reason for Sanders’s arrest and the surrounding circumstances; (2) any possible violation(s) of Sanders’s right to counsel, including ineffective assistance; (3) the entire trial transcript and record; (4) all rulings of the trial court; (5) possible prosecutorial misconduct; (6) all jury instructions; (7) all exhibits, whether admitted or not; (8) possible misapplication of the law in sentencing; (9) the sufficiency of the indictment; and (10) the weight and sufficiency of the evidence.

¶ 15. Sanders’s counsel requested that this Court allow an additional forty days for Sanders to file a pro se brief, should he so desire. Sanders’s counsel also stated that he sent a copy of his brief along with correspondence informing Sanders that he found no arguable issues in the record and advising Sanders of his right to file a pro se brief.

¶ 16. As of this date, this Court has not received any supplemental filing by Sanders. Furthermore, after thoroughly reviewing the record, we have found no arguable issues for our review. Finding no error that warrants reversal, we must affirm. Graves v. State, 78 So.3d 942, 943 (¶ 5) (Miss.Ct.App.2012); McClain v. State, 928 So.2d 210, 211 (¶ 8) (Miss.Ct. App.2006).

¶ 17. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF MANUFACTURE OF A SCHEDULE II CONTROLLED SUBSTANCE (METHAMPHETAMINE) AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS TO SERVE, FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION, THEN FIVE YEARS OF UNSUPERVISED PROBATION, AND TO PAY A FINE OF $5,000 AND $300 TO THE CRIME VICTIMS’ COMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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

      . "In Lindsey, 939 So.2d at 748 (¶ 18), the Mississippi Supreme Court modified the procedure that appellate counsel must follow when appointed counsel determines that there are no appealable issues within the record." Westbrook v. State, 75 So.3d 70, 70 n. 1 (Miss.Ct.App.2011).

      . "We review the trial court's admission or exclusion of evidence for an abuse of discretion.” Smith v. State, 90 So.3d 122, 128 (¶ 22) (Miss.Ct.App.2012).

      . " ‘[A]ny conflicts between witnesses’ accounts are properly weighed by the jury,’ which is 'the sole judge of the credibility of witnesses and the weight and worth of their testimony.’” Minor v. State, 89 So.3d 710, 717 (¶ 23) (Miss.Ct.App.2012).


author: FAIR, J.,

text:
    Joseph M. PECANTY, Jr., Appellant v. Marsha E. PECANTY, Appellee.
    No. 2010-CA-01930-COA.
    Court of Appeals of Mississippi.
    Sept. 18, 2012.

      Travis T. Vance Jr., attorney for appellant.
    J. Mack Varner, Clifford C. Whitney III, Vicksburg, Penny B. Lawson, attorneys for appellee.
    Before GRIFFIS, P.J., CARLTON and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Joe and Marsha Pecanty were divorced on the ground of Joe’s adultery. Joe appeals, arguing the chancellor erred in (1) classifying marital and separate property, (2) dividing marital property, and (3) awarding lump-sum and rehabilitative alimony. Finding the chancellor’s decision was supported by the evidence and the correct standards were applied, we affirm.

FACTS

¶ 2. This is a second marriage for both Joe, 49, and Marsha, 41. Each had two children when they married in March 2000.

¶ 3. When they married, Marsha was a medical-records clerk. In his brief Joe stated that the parties agreed “Marsha would quit work because Joe provided enough money for the family to live on with Joe’s job.” She became a full-time homemaker, caring for three of their children until emancipation and Joe’s niece on occasion when she stayed in their home. Marsha handled the family finances from their joint account.

¶ 4. Joe and Marsha had attempted to buy a home first, but were denied a loan because of their bad credit. Linda Ivy, Marsha’s mother, purchased the house, making a down payment of $2,226.20, and financing the balance with monthly payments of $558.60. Marsha and her mother both testified Linda bought it for rental and rented it to Joe and Marsha for $500 per month. When the house was damaged by Hurricane Gustav, Joe supervised repairs with Linda’s insurance proceeds. He directed changes to the structure and added fixtures, “without the permission or approval of Linda.” Joe argues that Linda bought the house for Marsha and him, and it was to be transferred to them when their financial and credit circumstances improved.

¶ 5. Joe and Marsha’s payments were placed in Linda’s personal bank account, from which she paid the monthly note. According to Linda, there never was any agreement for transfer to Joe and Marsha. Their rental agreement was month-to-month and not in writing. Joe’s brother and sister-in-law testified they heard discussions between Linda and the Pecantys about the house belonging to Joe and Marsha and that it was purchased in Linda’s name because of the Pecantys’ bad credit.

¶ 6. Before marrying Joe, Marsha had acquired a Louisiana barber’s license. She was working at Vicksburg Clinic until she married and quit at Joe’s behest. According to Joe, they “lived comfortably and enjoyed life.” He stated he “was a good provider and left Marsha to handle the finances.” Through Marsha’s efforts, Joe’s credit score rose to close to 800. Joe’s IRA, worth $20,547 when they married, rose by $42,399 during the marriage to total $62,800 at the time of the divorce.

¶ 7. Joe worked in the oil patch during the marriage, two weeks on and two weeks off. In 2006, he changed employers and transferred his retirement account to a local broker. His Uniform Chancery Court Rule 8.05 disclosures reflect a take-home monthly income of $3,897.96. Marsha made about $300 per month cleaning houses. She also received $208 per month from her first husband.

¶ 8. In March 2010, Marsha filed for divorce on the ground of Joe’s adultery, which he readily admitted had occurred during their marriage and continued after separation. Joe counterclaimed, asserting Marsha’s adultery, which she admitted had occurred on a trip to Hawaii about a month before trial.

¶ 9. After trial, the chancellor rendered a thirty-nine page opinion and judgment. Joe appeals, asserting:

1. The chancellor did not consider the marital home of the parties as subject to equitable distribution.
2. The chancellor did not equitably distribute the marital assets and erred in awarding both rehabilitative alimony and lump-sum alimony.

STANDARD OF REVIEW

¶ 10. This Court “will not disturb a chancellor’s judgment when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Benal v. Benal, 22 So.3d 369, 372 (¶ 4) (Miss.Ct.App.2009) (quoting Chapel v. Chapel, 876 So.2d 290, 292 (¶ 8) (Miss.2004)). If the chancellor’s findings are supported by substantial evidence, then we will affirm. Minter v. Minter, 29 So.3d 840, 850 (¶ 36) (Miss.Ct.App.2009).

DISCUSSION

1. Classification of the Marital Home

¶ 11. Joe disputes the chancellor’s finding that the house in which he and Marsha lived belongs to his mother-in-law, Linda. He claims it was in reality his and Marsha’s marital home and should be classified as marital, valued under Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994), and equitably divided under Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). He and Marsha stipulated the equity in the home was $13,455 so the sole issue is whether it was a marital asset.

¶ 12. Since title was in Linda’s name and she was not a party to this proceeding, the chancellor found she had no jurisdiction to award the property to either Joe or Marsha. See Skinner v. Skinner, 509 So.2d 867, 870 (Miss.1987). Nevertheless, the chancellor addressed Joe’s claims of the property’s marital status. Her factual decision that the property was rental in nature, owned by Linda outright and not held in trust for the parties, was well within her discretion. She further noted that “no documented evidence was presented to support Mr. Pecanty’s position,” and held that “[wjithout proper evidence, this Court has no choice but to find that [the home] is not a marital asset.”

¶ 13. Classification of property under Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994), usually involves two categories, “marital” and “separate.” The house in this case was ultimately neither, since it was found to be owned by someone other than the parties. It is not subject to consideration in the overall division of property and award of alimony. The only separate property was Joe’s premarital $20,547.27 retirement-fund equity and a $150 rifle.

2. Equitable Distribution

¶ 14. Joe contends that the chancellor erred in distributing marital property because her division was “unfair and inequitable.”

¶ 15. The marital property subject to division was listed in detail, and the parties stipulated to its value, which totaled $73,696.02. After discussing the Ferguson factors for distribution of marital property, the chancellor awarded items worth $80,435.97 to Marsha and items worth $43,260.03 to Joe. See Ferguson, 639 So.2d at 928. All eight factors were discussed in detail, and specific factual findings were made relating to each factor.

¶ 16. “We have repeatedly held that in making an equitable division of the marital property, the chancellor is not required to divide the property equally.” Love v. Love, 687 So.2d 1229, 1232 (Miss.1997). “Our purpose is to determine whether the chancellor’s ruling was supported by credible evidence, not whether we agree with that ruling.” Benal, 22 So.3d at 372 (¶ 4) (citing Lee v. Lee, 798 So.2d 1284, 1290 (¶ 22) (Miss.2001)). The greater award to Joe does not necessarily indicate an abuse of discretion. See Bresnahan v. Bresnahan, 818 So.2d 1113, 1122 (¶31) (Miss.2002).

¶ 17. We find that the chancellor’s division of marital assets is supported by substantial evidence and that she did not apply an erroneous legal standard.

3. Alimony

¶ 18. Finally, Joe asserts, the chancellor erred in awarding lump-sum and rehabilitative alimony.

¶ 19. The Mississippi Supreme Court has emphasized that there are three types of alimony: rehabilitative, lump sum, and periodic. Awarding one or more of these types fits into an overall reallocation of marital assets. This overall approach encompasses equitable division of marital property, the parties’ separate property, child support (not present in this case), and possible alimony. Alimony should be considered for a party facing a deficit after consideration of income available after equitable division.

¶ 20. Here, the chancellor reviewed the factors set out in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), to determine Marsha’s need and Joe’s ability to pay support. Marsha’s adjusted gross income (AGI) was determined to be $528.20 per month. Her monthly expenses, including all insurance, retirement contributions, and installment payments, totaled $1,831. Without alimony, Marsha had a monthly deficit of $1,302.80.

¶21. Joe’s AGI was determined to be $3,897.96 per month. His expenses totaled $2,330, leaving him a monthly surplus of $1,015.96.

¶ 22. If the divided assets, when considered with each party’s non-marital assets, “will adequately provide for both parties, no more need be done.” Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994). “A wife is generally entitled to periodic alimony when her income is inadequate to allow her to maintain her standard of living and when her husband is able to pay.” Kilpatrick v. Kilpatrick, 732 So.2d 876, 882 (¶ 4) (Miss.1999) (citing Heigle v. Heigle, 654 So.2d 895, 898 (Miss.1995)). Without alimony, Marsha will suffer a disparity in income and a decline in her standard of living following the equitable division of marital assets. See Lauro v. Lauro, 847 So.2d 843, 848 (¶ 13) (Miss.2003).

¶ 23. The chancellor next discussed the four factors set out in Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988), to determine whether lump-sum alimony and/or rehabilitative alimony should be considered, in lieu of periodic alimony with its potential for creating a permanent state of friction between divorcing spouses.

¶ 24. The chancellor awarded lump sum alimony of $29,049.03, reflecting the balance remaining on the vehicle awarded to Marsha in the property division. The award could be paid in installments as payments on the vehicle came due.

¶ 25. Finally the chancellor considered rehabilitative alimony, defined as “an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim.” Hubbard v. Hubbard, 656 So.2d 124,130 (Miss.1995). She emphasized that rehabilitative alimony is not an equalizer of assets as lump sum alimony may be, but a fresh start as described in Hubbard. Id. In deciding to award rehabilitative alimony to Marsha of $500 per month for sixty months, the chancellor addressed the seventeen factors set out in Davis v. Davis, 832 So.2d 492, 497 (¶ 19) (Miss.2002). Her decision is supported by substantial evidence and was within her discretion.

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

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

      . Monthly notes on a car bought after separation were not included.


text:
    Dennis JOBE a/k/a Dennis James Jobe, Jr. a/k/a Dennis Jobe, Jr. a/k/a Dennis J. Jobe, Jr. a/k/a Dennis James Jobe, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00213-COA.
    Court of Appeals of Mississippi.
    Sept. 18, 2012.

      Leslie S. Lee, Jackson, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before GRIFFIS, P.J., CARLTON and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Dennis Jobe Jr. was convicted of aggravated assault and sentenced to twenty years in the custody of the Mississippi Department of Corrections as a habitual offender. He now appeals asserting that the trial court erred by giving a “pre-arming” instruction to the jury and by failing to grant his motion for a new trial. Finding no error, we affirm.

FACTS ■

¶ 2. In June 2009, Jobe was visiting his friend Bruce Wilder’s home where a group of neighbors and acquaintances had gathered. Among the group were Andrew Hill and Jeremy Perry. At the time, Jobe was forty years old. Hill was seventeen. That afternoon, Perry and Jobe got into a physical confrontation over some missing cigarettes. This altercation was apparently short-lived, and they shook hands after-wards.

¶ 3. That night, Jobe cooked some meat on the grill outside and left to take his dog home. When he returned, all the food had been eaten. According to Chris Garrett, another guest, Jobe became angry and said he was going outside to handle this. Before leaving the kitchen, Jobe opened a drawer and removed an object. Jobe went out to the carport where he questioned Perry and Hill about his food. Perry and Jobe got into a second physical fight. Shortly thereafter, Perry called for help, and Hill intervened to pull Jobe off of Perry. Hill and Jobe then began to fight. At some point, Hill realized he was being cut and ran to a neighbor’s house seeking help. Billy Ward, another guest, corroborated this version of events.

¶ 4. According to Jobe, when he went outside to question Perry and Hill about his food, they both attacked him. Perry had the knife and was swinging it at Jobe while Hill was holding him still. During the struggle, they all fell down, and Jobe managed to get the knife but sustained cuts on his hands. Perry and Hill continued to “slash” at him with something, so he defended himself with the knife.

¶ 5. At trial, Detective Sergeant Gregory Correll stated that when he arrived on the scene, Jobe had no cuts on his hands. Emergency Medical Services Supervisor Gregory Mynatt, who treated Jobe, agreed that Jobe had no cuts or lacerations on his body. The knife Jobe used was found in the grass near the home and matched a set of steak knives in Wilder’s kitchen drawer.

¶ 6. The jury was instructed on the law of aggravated assault, self-defense, and pre-arming. After a one-day trial, it returned a guilty verdict. Jobe now appeals asserting that the trial court erred in giving a pre-arming instruction and in denying his motion for a new trial.

DISCUSSION

1. Pre-Arming Instruction

¶ 7. Jobe asserts that the trial court erred by giving the jury a pre-arming instruction and contends it effectively deprived him of his self-defense theory.

¶ 8. The instruction, S-2, stated: “If a person provokes a difficulty, arming himself in advance, and intending, if necessary, to use his weapon and overcome his adversary, he becomes the aggressor and deprives himself of the right of self defense.” In addition, the jury received one self-defense instruction and one aggravated-assault instruction.

¶ 9. “A criminal defendant is entitled to present his defense to the finder of fact.” Keys v. State, 635 So.2d 845, 848 (Miss.1994). Pre-arming instructions have been approved in rare cases. See Hart v. State, 637 So.2d 1329, 1337 (Miss.1994); Hall v. State, 420 So.2d 1381, 1385 (Miss.1982); Reid v. State, 301 So.2d 561, 564 (Miss.1974).

¶ 10. The Mississippi Supreme Court has set out certain conditions that must be met before a pre-arming instruction can be given. See Hart, 637 So.2d at 1337. We look to see if the defendant was not in any danger when he armed himself and then provoked a difficulty with the intent of causing serious bodily injury, if necessary, during the confrontation. See id. There must not be any evidence that the defendant abandoned his original purpose or attempted to withdraw in good faith from the encounter. Id.

¶ 11. In Hart, the defendant armed himself with a shotgun and drove to his victim’s house where he honked his horn and yelled while waiting for the victim to appear. Id. Similarly, in Hall, 420 So.2d at 1385, the defendant armed himself with a shotgun and went to his victim’s home after his wife warned him that the victim had threatened to hurt them. And in Reid, 301 So.2d at 564, after seeing the victim’s car near the trailer, the defendant armed himself and proceeded to the trailer for a confrontation. In each case, the pre-arming instruction was properly given because it was supported by the evidence.

¶ 12. Such an instruction was found to be improper in Johnson v. State, 908 So.2d 758, 763 (¶ 17) (Miss.2005), and Barnes v. State, 457 So.2d 1347, 1349-50 (Miss.1984). In Johnson, there was no evidentiary basis for the instruction because the defendant did not seek his victim out, and the State did not show his intent to provoke an altercation. Johnson, 908 So.2d at 763 (¶ 17). In Barnes, the instruction was improperly given because there was ambiguity regarding the first aggressor. Barnes, 457 So.2d at 1349-50. Three defense witnesses testified that the victim was the first aggressor, and there was no evidence of the defendant’s intent to provoke a confrontation. Id. at 1348.

¶ 13. Here, the testimony of the victim and other witnesses demonstrates that while Jobe was in no physical danger, he took a knife and proceeded outside stating that he would “handle this.” After reaching Perry and Hill, Jobe questioned them, and a physical confrontation erupted during which the defendant used his knife to inflict serious injury on both victims. There is no evidence that Jobe changed his mind, abandoned his original intent, or attempted to withdraw from the encounter. The only evidence of self-defense is Jobe’s own testimony that two “kids” attacked him with a kitchen knife after being questioned about the missing meat.

¶ 14. The instruction given did not preempt Jobe’s self-defense claim but submitted the issue to the jury for its determination. See Hall, 420 So.2d at 1385. Jobe was given a self-defense instruction that permitted the jury to consider his defense. The jury, by its verdict, rejected Jobe’s contention that he was acting in self-defense. Although this instruction and similar instructions have been criticized, this is a rare case where the instruction was supported by the evidence. We find no error was committed by giving instruction S-2.

2. Weight of the Evidence

¶ 15. Jobe argues that his conviction was against the overwhelming weight of the evidence, which establishes that he acted in necessary self-defense.

¶ 16. “A reversal is warranted only if the trial court abused its discretion in denying a motion for new trial.” Ivy v. State, 949 So.2d 748, 753 (¶ 21) (Miss.2007). “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). Evidence should be viewed in the light most favorable to the verdict. Id.

¶ 17. One is guilty of aggravated assault under section 97-3-7(2)(b) of the Mississippi Code Annotated (Supp.2011) if he “attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.... ”

¶ 18. Here, Hill testified that he pulled Jobe off of Perry and was attacked with a knife; Garrett stated that Jobe took an object from the kitchen drawer and went outside saying he was going to “handle this.” Detective Sergeant Correll found the knife and explained that it matched the knives in the kitchen drawer. A paramedic detailed the injuries for which she treated Hill that night,.and My-natt testified that Jobe did not have any cuts or lacerations on his body. The only conflicting evidence offered was Jobe’s own testimony.

¶ 19. On appeal, “[i]t is not our function to determine whose testimony to believe.” Taylor v. State, 744 So.2d 306, 312 (¶ 17) (Miss.Ct.App.1999). “We will not disturb a jury’s finding on conflicting testimony where there is substantial evidence to support the verdict.” Id. The jury in this case was presented with two conflicting versions of events. It found that Jobe was not acting in necessary self-defense when he assaulted Hill. Viewing the evidence in the light most favorable to the verdict, we cannot say the verdict is against the overwhelming weight of the evidence.

¶ 20. THE JUDGMENT OF THE DESOTO 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 ANY SENTENCE CURRENTLY BEING SERVED, AS A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, AND TO PAY A $1,000 FINE AND $100 TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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


text:
    Kim WADE, Appellant v. MISSISSIPPI REAL ESTATE COMMISSION, Appellee.
    No. 2011-CC-01484-COA.
    Court of Appeals of Mississippi.
    Sept. 18, 2012.

      Kim Wade, appellant, pro se.
    John L. Maxey II, William Holcomb Hussey, Jackson, attorneys for appellee.
    Before GRIFFIS, P.J., CARLTON and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Kim Wade appeals the dismissal of his case by the Hinds County Circuit Court, following an appeal from the Mississippi Real Estate Commission (MREC). Finding that circuit clerk must issue appropriate notice to Wade before a dismissal, we reverse and remand without reaching the merits of the MREC’s decision.

FACTS

¶ 2. The MREC suspended Wade’s real-estate broker’s license for ninety days and required eight hours of continuing education. It found that Wade had made a substantial misrepresentation in connection with a real-estate transaction. Wade appealed the MREC’s decision to the Hinds County Circuit Court.

¶ 3. The transcript from the MREC hearing was forwarded to the circuit court on September 2, 2010, and Wade subsequently filed several motions to correct the transcript, asserting that portions of the hearing were missing. On December 16, 2010, the court denied these motions and ordered that Wade file his appellant’s brief within forty days.

¶ 4. On July 13, 2011, the court dismissed Wade’s appeal for failure to prosecute. At that time, no appellant’s brief had been filed. Wade now appeals asserting eleven issues. They may be generally described as assorted procedural errors and factual arguments. One mandates return to the circuit court rendering the others moot.

STANDARD OF REVIEW

¶ 5. The decision to grant or deny a motion to dismiss is within the discretion of the trial court and will not be overturned unless that discretion is abused. Williams v. Fornett, 906 So.2d 810, 812 (¶ 2) (Miss.Ct.App.2004) (citing Roebuck v. City of Aberdeen, 671 So.2d 49, 51 (Miss.1996)).

DISCUSSION

¶ 6. Briefing in an appeal on the record must conform to the practice in the Mississippi Supreme Court. See URCCC 5.06. Therefore, an appeal from the MREC to the circuit court is controlled by the Mississippi Rules of Appellate Procedure.

¶ 7. Mississippi Rule of Appellate Procedure 2(a)(2) states:

An appeal may be dismissed upon motion of a party ... when the court determines that there is an obvious failure to prosecute an appeal ... [T]he clerk of the Supreme Court shall give written notice to the party in default, apprising the party of the nature of the deficiency. If the party in default fails to correct the deficiency within fourteen (14) days after notification, the appeal shall be dismissed ....

¶ 8. The Mississippi Supreme Court has interpreted this rule strictly. In American Investors, Inc. v. King, 733 So.2d 830, 831 (¶ 2) (Miss.1999), the trial court dismissed an appeal on its own motion without giving written notice of deficiency to the appellant. The supreme court held that the trial court erred in dismissing the appeal without providing prior notice of the dismissal and an opportunity to cure the default. Id. at 832 (¶ 3). Similarly, in Van Meter v. Alford, 774 So.2d 430, 431 (¶ 2) (Miss.2000), the trial court dismissed the matter on the appellee’s motion without providing a written deficiency notice to the appellant. The supreme court stated that though the appellee’s motion to dismiss provided constructive notice that the appeal was subject to dismissal, it did not substitute for an official notice of deficiencies from the court clerk. Id. at 432 (¶ 4).

¶ 9. Most recently, this Court applied the same rule in Thomas v. Five County Child Development Program, Inc., 958 So.2d 247 (Miss.Ct.App.2007). We noted that Rule 2(a)(2) and the official comment to the rule mandate notice before dismissal and define what constitutes proper notice. Id. at 251-52 (¶ 17).

¶ 10. Here, Wade was not given written notice of his deficiencies and fourteen days in which to cure any deficiencies before his appeal was dismissed. We therefore find that the circuit court erred in dismissing Wade’s appeal. This case is remanded to the circuit court with instructions that Wade be given proper notice and an opportunity to cure deficiencies.

¶11. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . "Briefs filed in an appeal on the record must conform to the practice in the Supreme Court, including form, time of filing, and service.... The consequences of failure to timely file a brief will be the same as in the Supreme Court.” URCCC 5.06.


author: BRYAN, Judge.

text:
    MONTGOMERY CITY COUNCIL v. G & S RESTAURANT.
    2100889.
    Court of Civil Appeals of Alabama.
    Dec. 9, 2011.
    Rehearing Denied March 30, 2012.
    Certiorari Denied June 15, 2012 Alabama Supreme Court 1110900.
    Stacy Lott Reed, staff atty., City of Montgomery, Legal Division, Montgomery, for appellant.
    L. Landis Sexton, Montgomery, for ap-pellee.
   BRYAN, Judge.

Scherry Knox Allen owns G & S Restaurant (“the restaurant”), which is located in the City of Montgomery. The restaurant, by and through Allen, applied to the Montgomery City Council (“the Council”) for a restaurant retail liquor license permitting the restaurant to sell liquor, and the Council denied the application. The restaurant subsequently sought review of the Council’s denial in the Montgomery Circuit Court by filing a petition for a writ of certiorari. See Phase II, LLC v. City of Huntsville, 952 So.2d 1115, 1119 n. 3 (Ala. 2006) (stating that, as in this case, “[wjhere there is no statutory right of direct appeal from a local government’s decision to deny an application for a liquor license, the only proper method of judicial review is by the common-law writ of cer-tiorari”); but see §§ 28-1-6 and -7, Ala. Code 1975 (providing a statutory direct appeal from the denial or approval of a liquor license by certain municipalities).

The circuit court reviewed the record made before the Council to determine whether the Council had acted arbitrarily or capriciously. See Phase II, 952 So.2d at 1119 (indicating that the reviewing court must determine whether a municipality’s liquor-license decision is arbitrary or capricious). The circuit court then entered a judgment overturning the Council’s denial of the liquor license. The judgment stated, in pertinent part:

“Based on a review of the record, the Court finds the following facts:
“1. [The] Restaurant is ... located at 1609 Rosa Parks Avenue. It is properly licensed by the city, health-code compliant, and has no history of legal or any other problems. It has a seating capacity of 25.
“2. [The] Restaurant is owned and operated by Scherry Knox Allen. Ms. Allen, on behalf of [the restaurant], applied for a restaurant retail liquor license.
“3. The State of Alabama Alcohol[ic] Beverage Control Board (‘ABC Board’) investigated Ms. Allen and the ... restaurant location and concurred in the issuance of the license.
“4. The Montgomery Police Department Special Operations Division noted that it had ‘No concerns about this application.’
“5. Both the Montgomery Police Department and the ABC board’s investigation revealed that there were four other liquor licenses in the vicinity. The nearest liquor license to [the restaurant] was one block away. The nearest church and school were four blocks away. The nearest residence was in the same block.
“6. The Montgomery Police Department investigation further revealed that there were no fights, no shootings, no disturbances, and no stabbings ever recorded at [the restaurant].
“7. Neither the church nor the school objected to the application. The ABC board investigation found two 30 year old convictions against Ms. Allen and a 1990 charge.[]
“8. There are no objections in the record by anyone other than [then] Council member [Martha] Roby. Council member Roby referred to off-the-record complaints by a neighborhood association, but there is no record of any such complaints for the Court to review.
“9. Council member Roby’s recitations of off-the-record discussions are inadequate in the facts of this case to support the City’s action.
“Even allowing for the broad discretion accorded the city in liquor license applications^] this action by the city cannot be sustained.”

The Council appealed the circuit court’s judgment to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

On appeal, the Council argues that it did not act arbitrarily or capriciously in denying the liquor-license application. A municipality has “ ‘broad’ discretion to approve or disapprove the issuance of liquor licenses with respect to locations within the municipality.” Phillips v. City of Citronelle, 961 So.2d 827, 829 (Ala.Civ. App.2007). However, a municipality’s decision granting or denying a liquor license must be set aside on judicial review if the municipality acted arbitrarily or capriciously. Phase II, 952 So.2d at 1119; Ex parte Trussville City Council, 795 So.2d 725, 727 (Ala.2001); and Phillips, 961 So.2d at 829. As our supreme court explained in Phase II:

“ ‘In reviewing a municipal council’s exercise of its legislative discretion to approve or disapprove the issuance of a restaurant liquor license, this Court must apply an “arbitrary-and-eapri-cious” standard.’ Ex parte Trussville City Council, 795 So.2d 725, 727 (Ala. 2001).
“ ‘ “A determination is not ‘arbitrary1 or ‘unreasonable’ where there is a reasonable justification for its decision or where its determination is founded upon adequate principles or fixed standards. State Department of Pensions and Security v. Whitney, 359 So.2d 810 (Ala.Civ.App.1978).
“ ‘ “If reasonable minds may well be divided as to the wisdom of [the decision maker’s] actions, or there appears some reasonable basis for the classification made by the [decision maker], such action is conclusive and the court will not substitute its judgment for that of the [decision maker].” ’ ”

952 So.2d at 1119 (quoting City of Huntsville v. Smartt, 409 So.2d 1353, 1357-58 (Ala.1982), quoting in turn Hughes v. Jefferson Cnty. Bd. of Educ., 370 So.2d 1034, 1037 (Ala.Civ.App.1979)).

In addition to the facts recited by the circuit court in its judgment, we note the following facts. The restaurant’s liquor-license application first came before the Council at its meeting on June 6, 2010. At the meeting, a council member asked if anyone opposed the application, and no one expressed opposition. However, before a vote could be taken, Council member Martha Roby successfully moved to carry the application over to the next meeting to give her time to discuss the application with others. The Council considered the restaurant’s liquor-license application again at its meeting of July 7, 2010. At that meeting, Roby stated that she had discussed the application with residents from the neighborhood where the restaurant is located. Roby stated that “the general consensus [in the discussion with the residents] was that it was not in the best interest of the safety and welfare of the neighborhood” to issue a liquor license for the restaurant. Some of the residents that Roby had spoken to were in the audience and stood when Roby asked them to stand. Roby further stated that a neighborhood association in the restaurant’s neighborhood had held a meeting and had voted “overwhelmingly in opposition to this license.”

Roby then made a motion to deny the application. Roby indicated that her motion was based on the “health, safety and welfare of the people who live in th[e] neighborhood,” the “negative impact” that serving liquor would have on the neighborhood, and the neighborhood association’s strong opposition to the application. More specifically, Roby noted that the “restaurant sits very close to homes and it is ... right where children walk to and from E.D. Nixon Elementary School.” No council members besides Roby stated reasons for or against granting the application.

We conclude that the Council had a reasonable justification to deny the liquor-license application, and, thus, the Council did not act arbitrarily or capriciously in denying the application. Phase II. Our conclusion is based primarily on the location of the restaurant in a residential area near an elementary school and the strong opposition from the residents. “Notwithstanding the absence of restrictions in a statute or ordinance, licensing authorities have as a general rule been permitted to deny licenses where the proposed location is improper by reason of the location and its surroundings.” Broughton v. Alabama Alcoholic Beverage Control Bd., 348 So.2d 1059, 1060 (Ala.Civ.App.1977). In Delta Oil, Inc. v. Potts, 479 So.2d 1273 (Ala.Civ. App.1985), this court considered whether the Alabama Alcoholic Beverage Control Board (“the ABC Board”) had acted arbitrarily in denying an off-premises beer license to an applicant. In that case, this court recited somewhat meager facts similar to the facts in this case:

“[T]he applicant’s store in Fairhope is situated directly across a fifty foot wide street from a church. While the evidence is somewhat confusing as to the store’s distance from a public school and playground, it is a reasonable conclusion that they were in close proximity to each other. Some church, city, and school officials, and residents of Fairhope opposed the issuance of the license to the applicant. Other than the above, no issue has been made at any time as to the applicant’s fitness for the license.”

479 So.2d at 1274. In concluding that the ABC Board had not arbitrarily and capriciously denied the off-premises beer license, this court emphasized the ABC Board’s “broad discretion” in considering applications. As noted, municipalities also have broad discretion in determining whether to issue liquor licenses. Phillips, supra.

Similarly, in Mims v. Russell Petroleum Corp., 473 So.2d 507 (Ala.Civ.App.1985), this court determined that the ABC Board had not arbitrarily denied an off-premises beer license. In Mims, the proposed location of the applicant’s store was very near schools, playgrounds, a church, a park, and a Girl Scout hut. 473 So.2d at 508. Children frequently walked by the location of the store. Id. at 509. This court also noted community opposition to the beer-license application, a relevant factor in this case:

“Community standards, i.e., opposition to the location of retailers of intoxicants, also have a bearing on each case. Cf. Broughton, 348 So.2d at 1060. There is evidence in the present case that the mayor, city council, school board, other community leaders, and citizens are strongly opposed to this particular location. ...”

473 So.2d at 509. See also Broughton, 348 So.2d at 1061 (“We do not find any abuse of discretion by the ABC Board in denying this [off-premises beer] license because of the proximity of the school and church.”); and Potts v. Bennett, 487 So.2d 919 (Ala. Civ.App.1985) (concluding that the ABC Board had acted within its discretion in denying an off-premises beer license when an applicant’s store was close to a school and churches, there was substantial opposition from local citizens, and there was some suggestion of a traffic hazard at the store).

Considering the Council’s broad discretion in determining whether to grant or deny liquor licenses, we conclude that the Council did not act arbitrarily or capriciously in denying the application in this case. Accordingly, we reverse the circuit court’s judgment, and we remand the case.

REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      . The restaurant filed a "notice of appeal” to the circuit court before filing the appropriate petition for a writ of certiorari.

      . The circuit court’s finding on this point is inconsistent with the Alabama Alcoholic Beverage Control Board's investigation report contained in the record. That report indicates that Allen was "guilty” of second-degree forgery in 1980, was “convicted” of making a false statement in 1990, and was "guilty” of "contributing delinquency” in 2000. A Montgomery Police report in the record indicates that Allen was charged with contributing to the delinquency of a minor in 2000. Under the "disposition” category for that charge is listed the words "not provided.”