text:
    William Eugene LITTLE, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00739-COA.
    Court of Appeals of Mississippi.
    Oct. 18, 2011.

      Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., MAXWELL and RUSSELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On February 23, 2010, William Eugene Little was convicted of child molestation. The Warren County Circuit Court sentenced Little to fifteen years in the custody of the Mississippi Department of Corrections, with ten years to serve, five years suspended, and five years of post-release supervision. On April 19, 2010, Little filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the circuit court denied. Feeling aggrieved, Little appeals and argues that the circuit court erred in admitting hearsay statements made by the victim during the course of a forensic interview.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Melissa lived at the Ameristar Trailer Park in Vicksburg, Mississippi, with her mother, Ann; her half brother, Ben; and her grandfather, Little. During the summer of 2006, Melissa went to visit her father, Jim, in Meridian, Mississippi. During the visit, Melissa revealed that Little had sexually abused her. Jim took Melissa to Rush Foundation Hospital where she was examined by Dr. James Nanny. Dr. Nanny testified that he found evidence of anal trauma that was consistent with sexual abuse.

¶ 4. At trial, Melissa testified that: Little made her perform oral sex on him; he attempted to insert his penis into her anus; and he touched her breasts, vagina, and bottom. Little testified that he had never touched Melissa inappropriately.

¶ 5. Jennifer Smith, an employee at the Mississippi Child Advocacy Center in Jackson, Mississippi, conducted a forensic interview with Melissa on October 18, 2007. At the time of the interview, Melissa was eleven years old. According to Smith’s testimony, the Hinds County Sheriffs Department had referred Melissa to the Center based on allegations that Little had sexually abused Melissa in Hinds County. However, during the course of the interview, Melissa revealed that Little had also sexually abused her in Warren County.

¶ 6. The State sought to introduce Melissa’s videotaped interview with Smith into evidence under the tender-years exception to the hearsay rule. Little objected, but the circuit court found, after examining Smith outside of the jury’s presence, that Melissa’s statements in the videotape contained substantial indicia of reliability and were admissible.

¶ 7. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. Little argues that the circuit court erred in admitting the hearsay statements made by Melissa during the course of the forensic interview. The standard of review applied to a circuit court’s decision to admit or deny evidence is abuse of discretion. Osborne v. State, 54 So.3d 841, 845 (¶ 12) (Miss.2011). The circuit court’s discretion is limited by the rules of evidence. Austin v. State, 784 So.2d 186, 193 (¶ 23) (Miss.2001). Errors in the admission or exclusion of evidence do not warrant reversal unless they adversely affect a substantial right of a party. Osborne, 54 So.3d at 845 (¶ 12).

¶ 9. Mississippi Rule of Evidence 803(25) provides:

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

¶ 10. “For the tender[-]years exception to apply, the child must be of tender years.” Klauk v. State, 940 So.2d 954, 956 (¶ 6) (Miss.Ct.App.2006) (citing M.R.E. 803(25)). In determining whether a child is of tender years, the circuit court “should consider the age of the child at the time the statement was made, not the age of the child at the time of the trial.” Elkins v. State, 918 So.2d 828, 833 (¶.15) (Miss.Ct.App.2005) (citing McGowan v. State, 742 So.2d 1183, 1187 (¶ 18) (Miss.Ct.App.1999)). “[T]here is a rebuttable presumption that a child under the age of twelve is of tender years.” Veasley v. State, 735 So.2d 432, 436 (¶ 16) (Miss.1999).

¶ 11. Once the circuit court determines that a child is of tender years, it “must establish the reliability of the child’s statements.” Klauk, 940 So.2d at 956 (¶ 6). The comment accompanying Rule 803(25) lists several factors that the circuit court should consider in determining whether the child’s statements are reliable:

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

The comment further states that “[a] finding that there is a substantial indicia of reliability should be made on the record.” M.R.E. 803(25) cmt.

¶ 12. This Court has previously held that failure to make an on-the-record finding regarding the reliability of hearsay statements admitted under the tender-years exception constitutes error. Klauk, 940 So.2d at 956 (¶ 6). However, the circuit court is not required to make “point-by-point findings on the twelve reliability factors” where there is sufficient evidence that the child’s statements possess substantial indicia of reliability. Elkins, 918 So.2d at 834 (¶ 18).

¶ 13. Little contends that because none of the twelve reliability factors were discussed at length, the circuit court’s analysis under the tender-years exception was improper. However, the record belies this contention. The circuit court questioned Smith extensively outside the presence of the jury regarding her interview of Melissa. The circuit court determined that Melissa was eleven years old at the time of the interview and, thus, of tender years under Veasley. The circuit court also inquired about Smith’s experience and training as a forensic interviewer, the interview techniques she used, and whether Melissa’s statements appeared to have been coached. Smith testified that she was a licensed social worker and had received forty hours of specialized training in forensic interviewing. Smith testified that she had performed seventy-four forensic interviews of children prior to her interview of Melissa. Additionally, she testified that she had utilized a nationally recognized protocol when conducting the interview that employed non-leading and non-suggestive questions. Finally, Smith testified that she had no reason to believe, based on her interview of Melissa, that Melissa had been coached.

¶ 14. The circuit court also considered the timing of Melissa’s declarations in relation to when the acts of sexual abuse happened and whether the statements were spontaneous. As to spontaneity, the circuit court found that Melissa’s statements made during the forensic interview were spontaneous because she disclosed the abuse that occurred in Warren County while being questioned about events that occurred in Hinds County. We disagree with the circuit court’s findings that Melissa’s statements were spontaneous. While the forensic interview with Smith was prompted by Melissa’s allegations of abuse that occurred in Hinds County, Melissa’s disclosure of the abuse that occurred in Warren County was in response to questioning by Smith. However, lack of spontaneity, in and of itself, does not cast doubt on the reliability of Melissa’s statements made during the forensic interview. See Pryer v. State, 958 So.2d 818, 822 (¶ 8) (Miss.Ct.App.2007) (holding that although the victim’s statements were not spontaneous, the circuit court properly admitted the statements under the tender-years exception given its consideration of other reliability factors). Although the circuit court incorrectly found that Melissa’s statements were spontaneous, its consideration of other factors supported its finding that Melissa’s statements were reliable. Therefore, the circuit court did not err in admitting Melissa’s statements made during the forensic interview.

¶ 15. Based on the record, we hold that the circuit court made an appropriate on-the-record finding regarding the reliability of Melissa’s statements made during the forensic interview and correctly found that her statements were reliable. Furthermore, Melissa testified at trial. Consequently, the circuit court did not err in admitting her statements under the tender-years exception. This issue is without merit.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY OF CONVICTION OF MOLESTATION AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS TO SERVE, FIVE YEARS SUSPENDED, AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

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

      . To protect the privacy of the minor victim and her family, the names of the victim and her relatives have been changed.

      . At trial, it was revealed that Little was Ann’s ex-father-in-law. After Ann and Little’s son divorced, Ann began a six-year relationship with Little that resulted in the birth of Ben.

      . At the time, Melissa was nine years old.

      . In October 2006, Little moved to Hinds County.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Theresia Walls JONES, Appellant v. Johnny Neal JONES, Appellee.
    No. 2009-CA-02015-COA.
    Court of Appeals of Mississippi.
    Oct. 18, 2011.

      Joseph A. Fernald Jr., Brookhaven, attorney for appellant.
    David Lee Brewer, attorney for appel-lee.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Johnny Neal Jones and Theresia Walls Jones agreed to a divorce based on irreconcilable differences. Although they had stipulated to the distribution of a number of their assets, they requested that the Lincoln County Chancery Court distribute the marital assets that they were not able to agree upon. Aggrieved by the chancellor’s methodology, Theresia appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Four years after they married, Johnny filed a petition for divorce based on alleged habitual cruel and inhuman treatment. He and Theresia later agreed to divorce based on their irreconcilable differences. They submitted a property list and valuation schedule of their property. They stipulated Johnny would receive personal property that was valued at $36,344.50, and Theresia would receive personal property that was valued at $11,855. They asked the chancellor to distribute the remaining items that included, among other things, the marital home, furniture, tools, and collectibles. Johnny and Theresia also requested that the chancellor divide the marital debt.

¶ 3. The chancellor concluded that approximately $91,000 in marital assets were subject to equitable distribution. The chancellor, therefore, determined that Theresia and Johnny should each receive $45,500 in marital assets. Although the marital home had a stipulated value of approximately $134,650, the chancellor found that, due to the relatively short duration of the marriage, only the appreciation in the home’s value from the beginning of the marriage should be subject to equitable distribution. The marital home had appreciated by approximately $34,650 during the marriage. The chancellor awarded Theresia the marital home and all of the equity in it.

¶ 4. Combining the $11,855 in stipulated personal property and the $34,650 equity in the marital home, the chancellor concluded that Theresia received more than her $45,500 share of the marital assets. Consequently, the chancellor concluded that Theresia should pay Johnny $996 to cover the difference. Johnny received the personal property to which he and There-sia had stipulated, as well as the remaining disputed personal property.

¶ 5. As for the marital debt, the chancellor found that there was approximately $16,850 in marital debt that should be divided between Theresia and Johnny. The chancellor concluded that each party should be responsible for $8,425 of the marital debt. The chancellor held that Theresia would be directly responsible for $3,467.50 of the debt, and he further ordered that Theresia was to pay Johnny $4,957.50 to cover the remaining portion of her share of the marital debt. The total sum that Theresia was to pay Johnny was $5,953, representing $4,957 plus $996.

¶ 6. Theresia appeals. She argues that the chancellor failed to make a fair apportionment of certain debts. Specifically, Theresia claims the chancellor erred because he failed to apportion the debt on the 2007 Nissan Altima. According to Theresia, Johnny should have to pay a share of the value of the debt “he created without her permission or knowledge.” Theresia also claims that if Johnny was responsible for a portion of the debt on the Altima, it would be unnecessary for her to pay him for a deficiency in the equitable distribution. In other words, Theresia claims the chancellor erred when he ordered her to pay a total sum of $5,953 to Johnny.

¶ 7. Additionally, Theresia argues that the chancellor’s distribution was not supported by the facts. That is, Theresia claims that the chancellor erred when he awarded the used sixteen-foot, dual-axle trailer to Johnny. Theresia claims that Johnny waived his interest in the trailer. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

STANDARD OF REVIEW

¶ 8. “Chancellors are vested with broad discretion, and this Court will not disturb the chancellor’s findings unless the court was manifestly wrong, the [c]ourt abused its discretion, or the [c]ourt applied an erroneous legal standard.” Humphries v. Humphries, 904 So.2d 192, 195 (¶ 7) (Miss.Ct.App.2005). In other words, we will not disturb the chancellor’s findings of fact if those findings are supported by credible evidence and they are not manifestly wrong. Id.

ANALYSIS

¶ 9. First and foremost, we note that, aside from stating that she does not challenge the chancellor’s analysis of the factors enumerated in Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994), Theresia does not cite any law whatsoever to support her contentions that the chancellor erred in his equitable distribution.

¶ 10. We will not consider an assertion of error for which there is no authority cited. Spalding v. Spalding, 691 So.2d 435, 439 (Miss.1997) (citations omitted). An argument on appeal “shall contain the contentions of the appellant with respect to the issues presented, and the reasons for those contentions with citations to the authorities, statutes, and parts of the record relied on.” M.R.A.P. 28(a)(6) (emphasis added). Because Theresia failed to cite any authority to support her contentions on appeal, her assertions are procedurally barred. Notwithstanding the procedural bar, we will briefly address her issues on appeal.

I. DEBT ON THE 2007 NISSAN AL-TIMA

¶ 11. Theresia claims the chancellor should have apportioned the remaining debt on the 2007 Nissan Altima she received in the chancellor’s equitable distribution. At the time of the chancellor’s equitable distribution, the stipulated value of the Altima was $19,350. There was $14,500 remaining on the Altima note, with equity of $4,850. According to Theresia, Johnny should have been ordered to pay one-half of the debt on the Altima. There-sia reasons that if the chancellor would have apportioned part of the debt on the Altima to Johnny, it would have been unnecessary for her to pay Johnny $5,953 because she received more assets and less debt than Johnny received. In other words, Theresia argues that the chancellor should have apportioned more debt to Johnny and more assets to her.

¶ 12. Theresia also claims that she did not want the Altima. The record reflects that Johnny surprised Theresia with the Altima, but they had been shopping for a new car, and she effectuated all of the necessary documents to complete the purchase of the Altima. It was certainly within the chancellor’s discretion to conclude that it was marital property. Furthermore, it was also within the chancellor’s discretion to forego apportioning part of the debt on the Altima to Johnny. As previously mentioned, the chancellor awarded Theresia the marital home, including the entire amount of the appreciation in value that had accrued since the marriage. Theresia also received other personal property worth $11,855 and the Altima. Johnny did not receive any portion of the marital home. The chancellor awarded Johnny personal property according to his and Theresia’s stipulation, as well as the seventy-three items that were disputed. Johnny received the remaining disputed personal property. Theresia actually received a greater share of the marital assets than Johnny received. Accordingly, the chancellor ordered Theresia to pay Johnny $996.

¶ 13. The chancellor also apportioned the debt in an equitable manner. Theresia and Johnny had $16,850 in marital debt. However, the chancellor held that Theresia would only be directly responsible for $3,467.50 of the total marital debt. The chancellor apportioned the remaining debt to Johnny. For equity’s sake, the chancellor then ordered Theresia to pay Johnny $4,957.50 to make up the difference between what Theresia and Johnny were ordered to pay in marital debt. The chancellor’s decision was supported by credible evidence. “Equitable distribution does not require an equality in the separate estates.” Striebeck v. Striebeck, 5 So.3d 450, 454 (¶ 15) (Miss.Ct.App.2008) (citing Owen v. Owen, 798 So.2d 394, 399 (¶ 14) (Miss.2001)). Furthermore, the chancellor’s decision was not manifestly wrong. This issue is proeedurally barred and without merit.

II. FLATBED TRAILER

¶ 14. Next, Theresia claims that the chancellor erred when he awarded a flatbed trailer valued at approximately $900 to Johnny. According to Theresia, the evidence indicated that Johnny recognized that her father had a proprietary interest in the trailer. Theresia states that Johnny testified that she should have the trailer. Therefore, Theresia reasons that the chancellor should have awarded her the trailer.

¶ 15. Again, procedural bar notwithstanding, there is no merit to Theresia’s claim. It is true that Theresia testified that the sixteen-foot, dual-axle trailer belonged to her father. It is also true that Johnny testified that Theresia could have the trailer. However, Johnny also testified that Theresia’s father had given the used trailer to them as a gift, and they had used the trailer during their marriage. The chancellor ultimately held that “there is no credible evidence that the trailer was not a gift, and [as a] matter of fact, it just doesn’t make sense that [Theresia’s father] would have left the trailer [at the marital home] for four years without it being some type of gift.” It was certainly within the chancellor’s discretion to reach that conclusion. This issue is proeedurally barred and without merit.

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

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

      . One-half of $16,850 is $8,425. $8,425 minus $3,467.50 equals $4,957.50.


author: CARLTON, J.,

text:
    Thomas Earl AUSTIN Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00903-COA.
    Court of Appeals of Mississippi.
    Oct. 18, 2011.

      Gary Goodwin, Leslie S. Lee, Jackson, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, Ladonna C. Holland, attorneys for appellee.
    Before GRIFFIS, P.J., MYERS, ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. This appeal stems from Thomas Earl Austin’s conviction in the Lowndes County Circuit Court for the crime of possession of a firearm by a convicted felon. Austin claims that the circuit court erred in denying his motion to suppress the evidence found in his vehicle as the result of an unreasonable search and seizure. Finding no error, we affirm.

FACTS

¶ 2. On March 12, 2009, Officer Lance Luckey of the Columbus Police Department observed a maroon-colored vehicle driving in his direction. Officer Luckey noticed that neither the driver nor the passengers of the vehicle were wearing seat belts. Officer Luckey then initiated a traffic stop by turning on his blue lights, turning his police car around, and driving behind the vehicle.

¶ 3. After the driver stopped the vehicle, Officer Luckey approached the driver. Officer Luckey informed the driver why he had pulled him over, and he requested to see a driver’s license and proof of insurance. The driver, who later identified himself as Austin, stated that he did not have a driver’s license or insurance. Officer Luckey then asked Austin for his social security number so that he could check on the status of Austin’s license. Officer Luckey also proceeded to take down identifying information from Austin as well as the other two passengers. Officer Kelvin Lee soon arrived at the scene to assist.

¶ 4. Officer Luckey testified that he smelled the odor of marijuana emanating from the car while initially questioning Austin during the traffic stop, and he asked Austin if there was anything in the vehicle that he needed to know about. Austin answered in the negative, and he consented to Officer Lackey’s request to search the vehicle. Upon searching the interior of the vehicle, Officer Luckey found the remnants of marijuana on the floorboard and seats. Officer Luckey asked the three occupants how long had it been since they had possessed or smoked marijuana in the vehicle. Austin admitted that they had smoked marijuana just an hour or so earlier.

¶ 5. After noticing that the smell of marijuana remained very strong, Officer Luck-ey then asked Austin if he had any marijuana in the trunk of the vehicle. Austin informed Officer Luckey that no marijuana was in the trunk, but Austin admitted that his uncle’s shotgun was in the trunk. Austin consented to Officer Luckey’s request to search the trunk. Once he opened the trunk, Officer Luckey noticed the 12-gauge shotgun that Austin claimed belonged to his uncle. Officer Luckey continued to search the trunk, and he found a .45-caliber automatic handgun. Austin claimed that the gun did not belong to him, and he told Officer Luckey that he had found it in a ditch. Officer Luckey testified that Officer Lee talked to Austin about his past criminal record, while Officer Luckey searched the trunk. Officer Luckey stated that Austin admitted that he was a convicted felon. The officers then proceeded to place Austin under arrest. A Lowndes County grand jury ultimately indicted Austin on two counts of possession of a firearm by a previously convicted felon.

¶ 6. Prior to trial, Austin filed a motion to suppress the evidence found in his vehicle on the ground that Officer Luckey lacked probable cause to conduct the initial traffic stop. Austin further claimed that the subsequent search of the vehicle was unreasonable due to lack of probable cause. The circuit judge subsequently denied Austin’s motion to suppress.

¶ 7. After a trial held on May 25-26, 2010, a jury convicted Austin of Count I, possession of a firearm by a convicted felon. When deliberating on Count II, the jury was unable to reach a unanimous verdict, and the circuit judge declared a mistrial as to Count Two. The circuit judge sentenced Austin as a habitual offender, pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007), to ten years in the custody of the Mississippi Department of Corrections without eligibility for parole or probation. The circuit judge also ordered Austin to pay a fine of $5,000 and all costs. Austin filed a motion for a judgment notwithstanding the verdict, or in the alternative, a new trial, which the circuit court subsequently denied. Austin now appeals his conviction and sentence, claiming that the circuit court erred in overruling his motion to suppress, and he requests that this Court reverse his conviction and sentence.

STANDARD OF REVIEW

¶ 8. When reviewing a circuit court’s ruling on a suppression hearing, this Court must assess whether substantial credible evidence supports the circuit court’s finding considering the totality of the circumstances. Price v. State, 752 So.2d 1070, 1073 (¶9) (Miss.Ct.App.1999) (citation omitted). The admissibility of evidence lies within the circuit court’s discretion and will only be reversed if this discretion is abused. Hentz v. State, 542 So.2d 914, 917 (Miss.1989). “The discretion of the [circuit] court must be exercised within the boundaries of the Mississippi Rules of Evidence.” Johnston v. State, 567 So.2d 237, 238 (Miss.1990).

DISCUSSION

¶ 9. Austin claims that the circuit court erred in overruling his motion to suppress evidence of the weapons found in his vehicle and Austin’s statements regarding possession of the weapons. Austin argues that Officer Luckey lacked probable cause and reasonable suspicion to initiate the traffic stop and subsequently search his vehicle; thus, Austin submits that the evidence from the search was inadmissible at trial.

¶ 10. “As a general rule, ‘the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.’ ” Drummer v. State, 42 So.3d 563, 565 (¶ 8) (Miss.Ct.App.2009) (quoting Henderson v. State, 878 So.2d 246, 247 (¶ 7) (Miss.Ct.App.2004)). Officer Luckey testified at trial that he observed that neither Austin nor his passengers were wearing seat belts while riding in the vehicle, which is a violation of Mississippi Code Annotated section 63-2-1(1) (Supp.2010). Section 63-2-1(1) states that “[w]hen a passenger motor vehicle is operated in forward motion on a public road, street or highway within this state, every operator, every front-seat passenger ... shall wear a properly fastened safety seat belt system[.]” Officer Luckey testified that he initiated the traffic stop based solely on his observation of Austin’s and his passengers’ failure to wear their seat belts in violation of section 63-2-1(1); thus, we find that Officer Luckey’s traffic stop was constitutionally reasonable.

¶ 11. Next, Austin claims that Officer Luckey’s search of the vehicle and trunk was not reasonably related in scope to the circumstances that justified the brief traffic stop. Austin further argues that the detention lasted longer than necessary to effect the purposes of the traffic stop.

¶ 12. Officer Luckey explained at trial that had he not smelled marijuana emanating from the vehicle, Austin would have been free to leave after Officer Luck-ey issued the traffic citations for failure to wear a seat belt. However, Officer Luck-ey testified that once he approached the vehicle and began speaking with Austin, he smelled a strong odor of burnt marijuana coming from the vehicle. Once Officer Lee arrived on the scene, Officer Luckey asked Austin if he could search the vehicle. Officer Luckey testified that Austin consented to his request to search the vehicle and trunk. An audio recording of the traffic stop, which Austin’s counsel played at both the suppression hearing and at trial, confirms that Austin indeed consented to Officer Luckey’s request to search the vehicle and trunk.

¶ 13. The Fourth Amendment to the United States Constitution and Article 3, Section 23 of the Mississippi Constitution of 1890 prohibit searches and seizures conducted without probable cause and a search warrant, except under certain limited exceptions. See United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Walker v. State, 881 So.2d 820, 827 (¶ 14) (Miss.2004). “One such exception exists wherein a search conducted pursuant to voluntary consent obviates the need for either probable cause or a warrant.” Peters v. State, 920 So.2d 1050, 1055 (¶ 14) (Miss.Ct.App.2006). We find that Austin’s consent to Officer Luck-ey’s request to search the vehicle and trunk obviated the need for probable cause in the present case.

¶ 14. Consent notwithstanding, we find that Officer Luckey’s search of the vehicle was also permissible under the automobile exception to the Fourth Amendment. The automobile exception provides that “[w]hen probable cause justifies the search of [a] vehicle which [the] police have lawfully stopped, ‘it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.’ ” Roche v. State, 913 So.2d 306, 313 (¶ 22) (Miss.2005) (citing Ross, 456 U.S. at 825, 102 S.Ct. 2157). The United States Supreme Court further explained that “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits [the] police to search the vehicle without more.” Id. (citing Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999)).

¶ 15. After reviewing the record, we find that Officer Luckey possessed probable cause to initiate the traffic stop. We also find that Officer Luckey’s search of the vehicle and trunk was permissible; therefore, we find that the circuit court properly denied Austin’s motion to suppress the evidence found as a result of the traffic stop. This issue is without merit.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE AS A HABITUAL OFFENDER OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION AND TO PAY A $5,000 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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

      . Additionally, due to Officer Luckey's testimony that he smelled burnt marijuana emanating from the vehicle, we find that his search of the vehicle was also permissible under the plain-smell corollary of the plain-view doctrine. See Fultz v. State, 822 So.2d 994, 996-997 (¶¶ 7-9) (Miss.Ct.App.2002). In Fultz, this Court held that a law-enforcement officer had probable cause to search a truck based on plain smell. Id.


text:
    Ricky GAVIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01601-COA.
    Court of Appeals of Mississippi.
    Oct. 18, 2011.

      Ricky Gavin, appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before IRVING, P.J., CARLTON and RUSSELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Ricky Gavin appeals the Jones County Circuit Court’s denial of his motion for post-conviction relief. Gavin asserts the following as error: (1) whether the trial court violated the Eighth Amendment to the United States Constitution; (2) whether the trial court erred in sentencing him to life without benefit of parole; (3) whether his appointed counsel was prejudiced against him; (4) whether his guilty plea was involuntary due to ineffective assistance of counsel; (5) whether, if not for ineffective assistance of counsel, the outcome of this case would have been different; (6) whether the crime of aggravated assault, rather than capital murder, or aiding and abetting, was supported by the evidence; and (7) whether the trial court erred in not allowing an evidentiary hearing. Finding no error, we affirm.

FACTS

¶ 2. On March 3, 2009, Gavin was indicted by a Jones County grand jury for capital murder in violation of Mississippi Code Annotated section 9T — 3—19 (2) (e) (Rev. 2006). A plea hearing was held before the Jones County Circuit Court on November 4, 2009. At the plea hearing, the State provided that if the case went to trial, it would show that Gavin and his co-defendant, Kenya Yvette Davis, went to Rebecca Ann McLain Pruitt’s home for the purpose of committing a robbery at her house. The State explained that it would prove that Pruitt allowed Gavin and Davis into her house and ate with them. Further, the State provided that it would prove, through Gavin’s confession, that as they were leaving, Gavin struck Pruitt with his fist knocking her to the ground. The State provided that Pruitt was then murdered in her home by and through the actions of Gavin and/or Davis. Finally, the State said that they would corroborate this confession by the evidence that was recovered, including Pruitt’s flat screen television, car, cell phone, and purse. At the conclusion of the plea hearing, Gavin pled guilty to the capital murder of Pruitt, and the trial court sentenced Gavin to life without the benefit of parole in the custody of the Mississippi Department of Corrections (MDOC).

¶ 3. On April 15, 2010, Gavin filed a PCR motion, which the trial court denied on August 30, 2010. Aggrieved, Gavin appeals.

STANDARD OF REVIEW

¶ 4. The standard of review in cases involving the trial court’s denial of a PCR motion is well established: “When reviewing a lower court’s decision to deny a petition for post-conviction relief, an appellate court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo.” Holloway v. State, 31 So.3d 656, 657 (¶ 5) (Miss Ct.App.2010) (quoting Moore v. State, 986 So.2d 928, 932 (¶ 13) (Miss.2008)).

DISCUSSION

I. CONSTITUTIONALITY OF SENTENCE

A. AIDING AND ABETTING

¶ 5. Gavin argues that the trial court violated the Eighth Amendment in imposing his sentence of life without benefit of parole. See Mississippi Code Annotated sections 97-3-19(2)(e), 97-3-21 (Rev. 2006), and 47 — 7—3(1)(e) (Supp.2011). Gavin asserts that, at his plea hearing, the district attorney stated that if the case went to trial, an aiding-and-abetting jury instruction would be submitted to the jury by the State. Gavin contends, however, that the Eighth Amendment does not permit the imposition of the death penalty on a defendant who aids and abets a felony in the course of which a murder is committed by others, where the defendant did not himself kill, attempt to kill, or intend the killing to take place. See Enmund v. Florida, 458 U.S. 782, 797-801, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). Gavin asserts, if it were not for the fear of death, he would have never pled guilty. Gavin, therefore, claims he is entitled to re-sentencing. However, we find that the evidence provided at the plea hearing proved that Gavin went with his co-defendant, Davis, to Pruitt’s house with the intention of robbing Pruitt. Furthermore, the State also presented Gavin’s confession that he participated in the crime and struck the victim, knocking her down.

¶ 6. Importantly, Gavin did not raise this argument in his PCR motion before the trial court. As such, Gavin is precluded from raising the issue now on appeal. See Clark v. State, 54 So.3d 304, 308 (¶ 10) (Miss.Ct.App.2011) (citing Foster v. State, 716 So.2d 538, 540 (¶9) (Miss.1998)). Procedural bar notwithstanding, we find no merit to this argument.

¶ 7. During the plea hearing, the trial court ascertained that Gavin had entered his guilty plea voluntarily and knowingly through an inquiry of Gavin under oath and upon proffer of an evidentiary basis for the plea. The plea colloquy shows that Gavin explained under oath that he understood that he faced the possibility of being sentenced to the death penalty if he went to trial. The plea colloquy further indicates that Gavin acknowledged under oath that he understood that if he went to trial and the jury did not impose the death penalty, then he would be sentenced to serve the same term that he agreed to at the plea hearing — that is, life without parole. Additionally, at the plea hearing, after the State had informed the trial court of the underlying factual basis for accepting Gavin’s plea of guilty to capital murder, Gavin agreed that a factual and legal basis existed for the court’s acceptance of his guilty plea. One of Gavin’s attorneys, Alison Steiner, informed the trial court that Gavin acknowledged his guilt as a principal accessory before and during the fact, and Gavin acknowledged using physical force in order to achieve the robbery. Accordingly, we find this issue is without merit.

B. LIFE WITHOUT PAROLE

¶8. On appeal, Gavin argues that the trial court erred in sentencing him to life without parole. Gavin argues that, according to Mississippi Code Annotated sections 97-3-21 and 99-19-101(1) (Rev. 2007), the sentencing options available to a defendant convicted of capital murder are life imprisonment or death. Gavin contends that life imprisonment without the possibility of parole fails to constitute a sentencing option unless the convict is adjudged a habitual offender. We disagree.

¶ 9. As noted by the trial court, section 97-3-21 provides: “Every person who shall be convicted of capital murder shall be sentenced (a) to death; (b) to imprisonment for life in the State Penitentiary without parole; or (c) to imprisonment for life in the State Penitentiary with eligibility for parole as provided in Section 47-7-3(l)(f).” Gavin was indicted and pled guilty to the crime of capital murder. The trial court sentenced Gavin to life imprisonment without parole. As authorized by statute, the punishment imposed upon Gavin for the offense to which he pled guilty clearly falls within the sentencing guidelines set forth in section 97-3-21. Therefore, Gavin’s claim is without merit.

II. EFFECTIVENESS OF COUNSEL

A.Whether the appointed counsels were prejudiced against Gavin.

B. Whether, if not for ineffective assistance of counsel, the outcome of this case would have been different.

C. Whether he entered an involuntary plea due to ineffectiveness of counsel.

¶ 10. Gavin argues that his attorneys were prejudiced against him. Gavin contends that his attorneys told him that going to trial was a waste of time and that the district attorney knew who had committed the actual murder so no reason existed to investigate the theory that Gavin had told his attorneys. Additionally, Gavin claims that his attorneys were deficient for failing to attack the statement he had given to the detective. Gavin also claims the motivation of one of his attorneys in representing him was merely to gain experience in capital cases and failed to constitute a desire to represent Gavin’s best interest. Further, Gavin argues that the ineffectiveness of his attorneys rendered his plea involuntary. See URCCC 8.04(A). In summary, Gavin argues, if not for ineffective assistance of counsel, the outcome of his case would have been different.

¶ 11. In denying Gavin’s PCR motion, the trial court stated, in part, that:

The merits of Gavin’s [m]otion entitle him to no relief and no hearing on his [m]otion. In particular, he raises no argument, theory, alleged error[,] or other rationale showing that he is entitled to relief. Gavin argues that he entered his guilty plea based upon the improper inducement of his counsel. A review of the transcript of the plea hearing in this cause shows that Gavin was represented by two (2) attorneys in these causes and that both were present on the date of his guilty plea. Gavin further argues that his counsel was ineffective. Finally, Gavin contends that his sentence [was] not permissible and this his plea agreement was invalid and unconstitutional. The Court finds all arguments presented by [m]ovant [are] without merit.
The Mississippi Court of Appeals reiterated the holding of many cases that “[t]he law is well settled in Mississippi jurisprudence that ‘[a] valid guilty plea admits all elements of a formal criminal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment against a defendant.’ ” Buckhalter v. State, 912 So.2d 159 (Miss.Ct.App.2005). A thorough review of Gavin’s guilty plea indicates that his plea was entered freely, voluntarily, and intelligently. See Transcript of Plea Hearing, attached as Exhibit A.
According to Buckhalter, “[t]o establish an ineffective[-]assistanee[-]of[-]counsel claim, [a defendant] must show (1) a deficiency in counsel’s performance that is (2) sufficient to constitute prejudice to his defense.” Id. A review of the plea hearing shows that Gavin was asked questions about the adequacy of his counsel by the Court and that he did not voice any objection to the representation he received!,] and in fact, [he] answered, “Yes, sir,” when asked if he was satisfied with his lawyers’ advice and representation. See Transcript of Plea Hearing, attached as Exhibit A. The record is clear that Gavin’s plea was entered freely, voluntarily, and intelligently. Id.
Further, Gavin was represented at the time of his plea by two (2) attorneys, Hon. Alison Steiner and Hon. Michael Mitchell. The Court can find no deficiencies in their performance that are sufficient to constitute prejudice to Gavin’s defense.

¶ 12. Upon our review of the record before us, we, like the trial court, find Gavin’s claims are without merit. We recognize that in proving an ineffective-assistance-of-counsel claim, a strong presumption exists that counsel’s performance was reasonable, and “the defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Barnes v. State, 51 So.3d 986, 989 (¶ 7) (Miss.Ct.App.2010). As noted by the trial court in the above-stated findings, Gavin failed to meet his eviden-tiary burden of establishing any deficiency in his attorneys’ performances.

¶ 13. Moreover, a review of the record shows that Gavin offered only his own affidavit in support of his claims, which fails to meet the requirements of Mississippi Code Annotated section 99-39-9 (Supp.2011). See Jefferson v. State, 855 So.2d 1012, 1014 (¶ 11) (Miss.Ct.App.2003) (“A petition that fails to incorporate an affidavit attesting to facts outside the personal knowledge of the petitioner fails to meet the statutory requirement for post-conviction relief motions.”). “The Mississippi Supreme Court has recognized in the context of post-conviction relief that where a party offers only his affidavit, his ineffective-assistance-of-counsel claim is without merit.” Barnes, 51 So.3d at 989 (¶ 7) (citing Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990)).

¶ 14. Additionally, we find no evidence in the record contrary to the trial court’s findings that Gavin entered a knowing, voluntary, and intelligent plea. See Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009) (“A guilty plea will be found valid if it is shown to have been voluntarily and intelligently made by the criminal defendant before the trial court.”) We also recognize that “[c]ounsel may not accept a plea on the defendant’s behalf.” Barnes, 51 So.3d at 989 (¶ 11). Even if Gavin entered his plea because he was afraid of death, the record shows that his plea was, nonetheless, voluntary.

¶ 15. Accordingly, we find Gavin’s claims are without merit.

III. AGGRAVATED ASSAULT

¶ 16. Gavin argues that he is entitled to a new sentencing on the crime of aggravated assault, rather than capital murder; and he seeks reversal of his capital-murder conviction. Gavin contends that the evidence supports his claim that he provided law enforcement with a coerced statement that he hit the victim and left. Gavin also asserts that the district attorney possessed evidence that placed his co-defendant in the room at the time when the victim was killed. Accordingly, Gavin claims that the evidence fails to support a murder sentence. He argues that the evidence is sufficient to support only an aggravated-assault sentence.

¶ 17. The record indicates that Gavin failed to raise this issue in his PCR motion. “It is well settled that issues not raised before the trial court for resolution are procedurally barred from being raised for the first time before the appellate court.” Chandler v. State, 44 So.3d 442, 448 (¶ 7) (Miss.Ct.App.2010) (citation omitted). Therefore, we find this issue is procedurally barred.

¶ 18. In addition to being procedurally barred, this issue is also without merit since the evidentiary issues asserted by Gavin were waived by his guilty plea. See Jefferson, 855 So.2d at 1014 (¶ 11) (“[A] plea of guilty waives any evidentiary issue.”). See also URCCC 8.04(A)(4)(c). Furthermore, a review of the record shows, at the plea hearing, the State established a factual basis for the capital-murder charge against Gavin by stating the evidence that it would have presented if the case went to trial. One of Gavin’s attorneys, Michael Mitchell, and Gavin then admitted during the plea colloquy that a factual and legal basis existed for the trial court’s acceptance of Gavin’s guilty plea to capital murder. Additionally, the plea colloquy shows that Steiner, Gavin’s other attorney, informed the trial court that Gavin acknowledged his guilt as a principal accessory before and during the fact of the commission of the crime of capital murder, including that he had helped plan the crime. The plea colloquy also shows that the State asserted that it could prove through Gavin’s confession that he struck Pruitt with his fist knocking her to the ground, and Steiner, Gavin’s attorney, stated that Gavin acknowledged using physical force in order to achieve the robbery. The plea colloquy reflects his culpability providing, in part, as follows:

STEINER [defense counsel]: ... We’ve explained that he is in fact legally guilty as accessory given what the State can prove about him. Even as he has said, he did not we [sic] weild [sic] the knife or the gas can. He planned the crime. He worked with — he did not hold her down, use violence against her. He allowed his accomplice to kill her in order to achieve the crime which is that of capital murder as accessory to the crime of the fact. He acknowledges his guilt as a principal accessory before and during the fact.
BUCKLEY [prosecutor]: That is correct, Your Honor. The State would have submitted at trial and [sic] aiding and abetting instruction on the theory of course that both participated and regardless of who did what, both [are] guilty.
COURT: I understand the testimony would be that would have been his word against hers; is that right?
BUCKLEY: Only as to the stabbing, Your Honor. But in terms of the, like as opposing counsel has said, the plotting of it, the setting it in motion, the intent to rob, the actual robbing, we wouldn’t need any other testimony in that regard.
COURT: Anything else?
STEINER: He does acknowledge using physical force in order to achieve the robbery.

¶ 19. Based on our review of the record, we find that a sufficient factual basis existed for Gavin’s plea of guilty to the charge of capital murder. Gavin’s allegations that the evidence against him supported only aggravated assault, rather than capital murder, lacks merit. Thus, we find that this issue is without merit.

IV. EVIDENTIARY HEARING

¶20. In his final assignment of error, Gavin argues that he was entitled to an evidentiary hearing because his guilty plea was involuntary due to ineffective assistance of counsel. Further, Gavin seeks relief in the vacation of his plea agreement and remand of his case for an evidentiary hearing. Gavin claims the evidence in this case is circumstantial and points to his co-defendant; thus, he argues that he is entitled to relief. We disagree. Pursuant to Uniform Rule of Circuit and County Court 8.04(A)(4)(c) and his plea colloquy, Gavin waived his right to a trial by jury, as well as his right to confront and cross-examine adverse witnesses. Therefore, Gavin waived evidentiary issues as to circumstantial evidence and confrontation of Davis, his co-defendant, at a trial by jury.

¶ 21. A review of the record additionally shows that Gavin failed to meet the statutory requirements for PCR motions as required by section 99-39-9 by failing to incorporate an affidavit, other than his own, to support his claims. See Jefferson, 855 So.2d at 1014 (¶ 11). “A post-conviction-relief motion supported by the affidavit of the accused alone fails to meet the pleading requirements of Mississippi Code Annotated section 99-39-9 (Supp.2009); therefore, it ‘is deficient on its face and properly dismissed without an evidentiary hearing.’ ” Morris v. State, 29 So.3d 98, 103 (¶ 15) (Miss.Ct.App.2010) (quoting Edwards v. State, 995 So.2d 824, 826-27 (¶ 11) (Miss.Ct.App.2008)). Therefore, we hold the trial court did not err in denying Gavin an evidentiary hearing. This issue is without merit.

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

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

      . For clarity, we have restated Gavin’s assignments of error.

      . This Court is provided this information through Gavin's PCR motion.

      . "Before July 1, 1994, Mississippi] Code Annotated] [section] 97-3-21 (Rev.2000) provided two sentences for one convicted of capital murder: death or life imprisonment with the possibility of parole.” Twillie v. State, 892 So.2d 187, 190-91 (117) (Miss.2004). However, effective July 1, 1994, the option of life without parole was added as a punishment by the Mississippi Legislature. Id. "The Legislature added the following guideline: 'The provisions of this act shall apply to any case in which pre-trial, trial[,] or resentencing proceedings take place after July 1, 1994.’ ” Id.

      . For clarity, we have combined issues III, IV, and V since all issues concern the effectiveness of Gavin's attorneys.

      . At the plea hearing, the State stated that Gavin confessed to law-enforcement officers that he struck Pruitt with his fist, knocking her down.


author: IRVING, P.J.,

text:
    Levi MILLER, Appellant v. Sonya BOYD, Appellee.
    No. 2010-CA-01756-COA.
    Court of Appeals of Mississippi.
    Oct. 18, 2011.

      John Justin King, John R. Reeves, attorneys for appellant.
    Monica Davis Joiner, attorney for appel-lee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises out of a custody dispute between Levi Miller and Sonya Boyd, the natural parents of Lance Spencer Miller. The Madison County Chancery Court denied Levi’s Petition to Modify Child Custody and Child Support Order. Feeling aggrieved, Levi appeals and argues that the chancery court erred in not granting his request for joint legal custody-

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Lance is the only child of Levi and Sonya, who were never married. On December 2, 2008, the chancery court granted Levi and Sonya joint physical custody of Lance. The court also granted Sonya sole legal custody of Lance.

¶ 4. On July 6, 2010, Levi filed a petition for modification, requesting joint legal custody. Levi alleged that his inability to obtain medical care for Lance constituted a material change in circumstances warranting a modification. At the hearing on this issue, Levi testified that he sought joint legal custody of Lance because having to wait for Sonya to consent to Lance’s medical treatment caused Lance to suffer. Additionally, Levi stated that he needed the ability to make medical decisions on Lance’s behalf when Sonya was unavailable.

¶ 5. Sonya testified that Levi’s primary reason for seeking joint legal custody was his dislike of the pediatrician that Sonya had chosen for Lance. Sonya believed that Lance should see only one primary pediatrician. Sonya admitted that she had consented to Lance seeing the pediatrician that Levi had chosen on one occasion, but she explained that that was only because Lance’s primary pediatrician could not see Lance at that time.

¶ 6. The chancery court determined that a material change in circumstances had not occurred since the initial custody order; therefore, it denied Levi’s petition for joint legal custody of Lance.

¶ 7. Additional facts, as necessary, will be related during our discussion and analysis of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. An appellate court will not disturb a chancery court’s findings “when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, [reached a] clearly erroneous [result,] or an erroneous legal standard was used.” Southerland v. Southerland, 875 So.2d 204, 206 (¶ 5) (Miss.2004) (citing Kilpatrick v. Kilpatrick, 732 So.2d 876, 880 (¶ 13) (Miss.1999)).

¶ 9. The standard for modifying custody requires the non-custodial parent prove, by a preponderance of the evidence, that: a material change in circumstances has occurred since the entrance of the custody decree; the material change adversely affects the child’s welfare; and the best interest of the child requires a change of custody. McSwain v. McSwain, 943 So.2d 1288, 1292 (¶ 15) (Miss.2006).

¶ 10. Levi argues that his alleged inability to obtain medical care for Lance constitutes a material change in circumstances. At the hearing on this issue, Levi provided testimony regarding what he characterized as failed attempts to obtain medical treatment for Lance. On one occasion, Levi took Lance to the doctor for allergy testing. When the doctor wanted to prescribe a new medicine for Lance, Levi needed Sonya’s approval, but Levi claims that Sonya did not respond to his cellular telephone calls or text messages. On a second occasion, when Levi picked Lance up for his scheduled visitation, both parents acknowledged that Lance had cold symptoms. However, Sonya had not taken Lance to the doctor. Levi took Lance to a doctor, and the doctor diagnosed Lance with strep throat. Despite Levi’s insistence that he cannot obtain proper medical care for Lance, the record is devoid of any instance in which Lance did not receive medical care because of Levi’s lack of legal custody. In fact, the record shows that Levi has obtained medical care for Lance without having legal custody and without having obtained Sonya’s consent.

¶ 11. Based on the evidence presented, Levi has failed to demonstrate the existence of a material change in circumstances that would warrant a modification of the original custody order. Because Levi failed to meet his burden, we hold that the chancery court did not err in denying his request for modification. Thus, this issue is without merit.

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

LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. RUSSELL, J., NOT PARTICIPATING.


author: SHAW, Justice.

text:
    Larry THOMAS v. Charles EARNEST and Zondra T. Hutto, administrator of the estate of James E. Kimble, deceased.
    1091428.
    Supreme Court of Alabama.
    March 4, 2011.
    Rehearing Denied May 6, 2011.

      W. Whitney Seals of Pate & Cochrun, L.L.P., Birmingham, for appellant.
    V. Edward Freeman II of Stone, Patton, Kieree & Freeman, Bessemer, for appellee Charles Earnest.
    Robert R. Kracke of Kracke & Thompson, LLP, Birmingham, for appellee Zon-dra T. Hutto, as administrator of the estate of James E. Kimble, deceased.
   SHAW, Justice.

Larry Thomas, the plaintiff below, appeals from a summary judgment in favor of Charles Earnest and Zondra T. Hutto, administrator of the estate of James E. Kimble, deceased, the defendants below, on Thomas’s claims alleging personal injury arising out of a motor-vehicle accident that occurred in Bessemer. For the reasons discussed below, we reverse and remand.

Facts and Procedural History

On the afternoon of June 22, 2004, Thomas was a passenger in the rear seat of a motor vehicle driven by 16-year-old Jeromese Cook. Cook’s mother was riding in the front passenger seat. The vehicle was proceeding on Ray Street in Bessemer; as the vehicle approached the intersection of Ray Street and Fairfax Avenue, Cook stopped at a stop sign. As she was attempting to proceed onto Fairfax Avenue, Cook’s vehicle was struck by a motor vehicle operated by James E. Kim-ble.

Earnest is the owner of real property located at the- corner of Fairfax Avenue and Ray Street. Before the accident, Earnest had entered into a contractual agreement with Darrell Watson pursuant to which Watson had agreed to cut the grass on Earnest’s property. However, it is alleged that, at the time of the accident, vegetation and grass on the lot was tall enough to restrict the view of drivers proceeding into the intersection at Ray Street and Fairfax Avenue.

On November 17, 2005, Thomas filed the underlying complaint asserting claims of negligence and wantonness against Hutto, as administrator of Kimble’s estate; Earnest; Watson; and various fictitiously named defendants. Specifically, as to Earnest, Thomas’s complaint alleged that Earnest “was negligent in his maintenance of the lot” and that drivers could not properly see traffic at the intersection, which, Thomas says, led to the accident. Earnest subsequently filed an answer to Thomas’s complaint admitting his ownership of the subject property but denying that he had been negligent in its maintenance. Earnest’s answer did not assert contributory negligence as an affirmative defense. Hutto filed an answer asserting 10 affirmative defenses to Thomas’s claims, including the defense that Thomas’s own alleged negligence barred his recovery.

Earnest later moved for a summary judgment as to the claims asserted against him. Earnest’s motion was supported by Thomas’s deposition and by numerous affidavits obtained from Thomas’s anticipated witnesses, all of whom professed familiarity with Earnest’s lot and indicated that, on the date of the accident, the grass and vegetation on the lot was high and, as a result, “[a]s you stopped at the [subject] intersection it was difficult to see other traffic traveling on Fairfax Avenue because of the high weeds and grass.” In the brief accompanying his summary-judgment motion, Earnest’s sole contention in support of his request for a summary judgment was as follows:

“Taking the allegations as true as to the height of the weeds, the dangerousness of the intersection and the length of time that it had been in this condition, ... Thomas was guilty of contributory negligence, as a matter of law, by failing to warn ... Cook regarding the limited view because of the height of the weeds.”

Hutto subsequently joined Earnest’s summary-judgment motion.

The trial court entered a summary judgment in favor of Earnest and Hutto on May 14, 2010. Conceding that negligence is ordinarily a jury question, but concluding that, “here, reasonable minds cannot differ,” the trial court stated:

“Larry Thomas knew that you could not see around the weeds (Larry Thomas Depo[.] at 19, Lines 13-14), was familiar with the intersection, he had been there a lot in the past, the grass was high before the accident and the day of the accident and had been that way for quite awhile. Accordingly, the Plaintiff, Larry Thomas, had a duty to warn the driver of the vehicle in which he was a passenger of the danger that was ‘known and appreciated’ by Larry Thomas at such time as the driver of the vehicle ‘entered the sphere of danger.’ Adams v. Coffee County, 596 So.2d 892 (Ala.1992).
“If you could not see around the weeds as Larry Thomas claims (Larry Thomas Depo[.] at 19, Lines 13-14), then Larry Thomas had a duty as a matter of law to warn the driver of the danger that was known to him and had been known to him for sometime. If the weeds were such that the obstruction created by them could not be seen around, then the vehicle in which [Thomas] was a passenger should never have pulled from a stopped position into the intersection where the collision occurred.
“Based on the facts of this case, it would appear that Larry Thomas had a duty not only to warn the driver, but to direct the driver to take another route and avoid the route which was dangerous to the extent Larry Thomas claims. This order does not hinge on the additional duty to direct the driver of the known danger.
“[Thomas’s] testimony confirms his knowledge and appreciation of the danger, that he made no effort to warn the driver of the danger and that ... nothing prevented [Thomas] from fulfilling his duty to make known to the driver the danger when the vehicle entered the ‘sphere of danger.’
“Taking the allegations as true as to the height of the weeds, [Thomas’s] knowledge of the dangerousness of the intersection and the length of time that it had been in this condition, Larry Thomas was guilty of contributory negligence, as a matter of law, by failing to warn the driver, Jeromese Cook, regarding the limited view created by the presence and height of the weeds.”

Following the trial court’s entry of the foregoing order, Thomas, on June 25, 2010, filed a timely notice of appeal.

Standard of Review
“ ‘ “This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a pri-ma facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, §.12-21-12. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).” ’
“Prince v. Poole, 935 So.2d 431, 442 (Ala.2006) (quoting Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004)).”

Brown v. W.P. Media, Inc., 17 So.3d 1167, 1169 (Ala.2009).

Discussion

I.

On appeal, Thomas initially contends that Earnest waived the right to assert the affirmative defense of contributory negligence by failing to include it in his answer. Thomas further argues that, even assuming Earnest could properly assert the doctrine of contributory negligence as a defense to Thomas’s claims, there were remaining questions of material fact that, Thomas says, prevented the trial court’s entry of a summary judgment in Earnest’s and Hutto’s favor.

It is generally true that a party’s failure to include an affirmative defense in its answer constitutes a waiver of that defense; however, this rule is not without exception.

“Regarding affirmative defenses, this Court has said:
“ ‘Once an answer is filed, if an affirmative defense is not pleaded, it is waived. Robinson v. [Morse ], 352 So.2d 1355, 1357 (Ala.1977). The defense may be revived if the adverse party offers no objection (Bechtel v. Crown [Central ] Petroleum Corp., 451 So.2d 793, 796 (Ala.1984)); or if the party who should have pleaded it is allowed to amend his pleading (Piersol v. ITT [Phillips ] Drill Division, Inc., 445 So.2d 559, 561 (Ala.1984)); or if the defense appears on the face of the complaint (cf., Sims v. Lewis, 374 So.2d 298, 302 (Ala.1979); and Williams v. McMillan, 352 So.2d 1347, 1349 (Ala.1977)). See, also, 2A J. Moore, Federal Practice § 8.27[3] at 8-251 (3d ed. 1984)....’
“Wallace v. Alabama Ass’n of Classified School Employees, 463 So.2d 135, 136-37 (Ala.1984)....”

Pinigis v. Regions Bank, 942 So.2d 841, 846-47 (Ala.2006) (emphasis added).

It is undisputed that contributory negligence is an affirmative defense that must be pleaded, see Rule 8(c), Ala. R. Civ. P., and that Earnest failed to plead contributory negligence in his answer. However, as Earnest points out in his brief to this Court, it appears from the record that Thomas never objected to Earnest’s introduction of the defense in his summary-judgment motion or argued that the defense had been waived. Thus, as stated in Pinigis, Thomas’s failure to object allowed the defense to be “revived.” Further, Thomas may not raise his objection to the assertion of the defense for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.” (citing Rodriguez-Ramos v. J. Thomas Williams, Jr., M.D., P.C., 580 So.2d 1326 (Ala.1991))).

II.

Thomas also argues that the evidence before the trial court created a factual question as to whether Thomas was indeed contributorily negligent and that summary judgment was thus inappropriate. We agree.

Earnest, Hutto, and the trial court are all correct that Alabama law may impose a duty of care on a gratuitous passenger:

“It is well established in Alabama that a gratuitous automobile passenger is not absolved of all personal care for his own safety, but is under a duty of exercising reasonable or ordinary care to avoid injury, such care as would be exercised by an ordinarily prudent person under like circumstances, and generally is chargeable with contributory negligence barring a recovery, if his failure to exercise such care contributes proximately to his injuries. E.g., Moore v. L. & N. R.R., 223 F.2d 214 (5th Cir.1955); Iverson v. Phillips, 268 Ala. 430, 108 So.2d 168 (1959); Utility Trailer Works v. Phillips, 249 Ala. 61, 29 So.2d 289 (1946). This duty exists even though the passenger is not chargeable with the driver’s negligence. Coulter v. Holder, 287 Ala. 642, 254 So.2d 420 (1971). The obligation to exercise reasonable care for one’s own safety exists independent of the imputation principle. See Proctor v. Coffey, 227 Ala. 318, 149 So. 838 (1933). Passenger negligence does not require that the passenger have authority or control over the movement of the car in which he was a passenger. Passenger’s duty to use due care for his own safety is not affected by the question of agency or pursuit of joint enterprise. McGeever v. O’Byrne, 203 Ala. 266, 82 So. 508 (1919).
“When a driver is negligent, reckless or incompetent, and this is known to the guest, the duty of due care on the part of the guest arises. Williams v. Pope, 281 Ala. 382, 203 So.2d 105 (1967).”

Hamilton v. Kinsey, 337 So.2d 344, 345-46 (Ala.1976).

However, contrary to Earnest’s argument in his brief to this Court, the law regarding a gratuitous passenger’s duty does not necessarily support a finding that “[a] rear seated automobile passenger is guilty of contributory negligence, as a matter of law, if he fails to warn the driver of the vehicle in which he was riding, of a known and appreciated danger which proximately causes his injuries and damages.” (Earnest’s brief, at p. 9.) Instead,

“[t]he duty of the passenger is ... not original, with respect to the operation of the vehicle, but is resultant and is brought into effect by known and appreciated circumstances. Moreover, no fixed rule can be formulated which will apply to all cases that will determine when the duty arises, what particular circumstances will raise it, or what particular warning or protest will be sufficient to discharge the duty once it has arisen.”

Brown v. AAA Wood Prods., Inc., 380 So.2d 784, 787 (Ala.1980) (citation omitted). See also Aplin v. Tew, 839 So.2d 635, 638 (Ala.2002) (“To establish contributory negligence as a matter of law, a defendant must show that the plaintiff put himself in danger’s way and that the plaintiff had a conscious appreciation of the danger at the moment the incident causing the injury occurred.”).

Although, as noted above, the trial court ostensibly relied on this Court’s decision in Adams v. Coffee County, 596 So.2d 892 (Ala.1992), in reaching the conclusion that, based on his knowledge and conduct at the time of the accident, Thomas was contribu-torily negligent as a matter of law, it is difficult to discern how Adams supports such a finding. Adams arose from a motor-vehicle accident at an intersection that resulted in injury to Adams, a passenger in one of the vehicles. Adams later sued Coffee County, alleging that the County’s negligent maintenance of traffic-control devices, including a stop sign and “a hazard board” placed at the intersection, had caused the accident. 596 So.2d at 894. More specifically, Adams contended that the County had been aware before the accident that the devices were in disrepair. Id. Adams appealed to this Court from the denial of her motion seeking a directed verdict as to allegations of contributory negligence, which were predicated on the fact that, immediately before the accident, Adams, who was providing the driver of her vehicle with travel directions, had traveled through the intersection and was thus aware that the devices “were down” but had failed to so inform or warn the driver. 596 So.2d at 895.

With regard to the passenger-negligence issue, Adams stated:

“In order to impute the negligence of the driver of an automobile to a passenger, the passenger must have had some authority or control over the car’s movement, such as some right to a voice in the management or direction of the automobile. Banks v. Harbin, 500 So.2d 1027 (Ala.1986); Brown v. AAA Wood Products, Inc., 380 So.2d 784 (Ala.1980). A passenger is not relieved from all personal care for his or her own safety, but instead has the duty to exercise reasonable care to prevent injury. Brown, at 787.
“Therefore, the duty of the passenger is not original with respect to the operation of the automobile, ‘but is resultant and is brought into effect by known and appreciated circumstances.’ The duty arises when the passenger ‘should [anticipate that] the driver of the vehicle will enter the sphere of danger, or omit to exercise due care, not when he has the opportunity to anticipate the danger without anything to direct his attention to a condition requiring him to anticipate the vehicle is about to enter the sphere of danger or requiring him, in the exercise of ordinary care, to keep a lookout.’ Id.”

596 So.2d at 895 (emphasis added).

Applying the foregoing rule to Adams’s conduct, the Court concluded that there was a factual question presented as to whether Adams was contributorily negligent at the time of the accident:

“Under the facts of this case, the trial court properly submitted the question of Adams’s contributory negligence to the jury. The jury could have reasonably concluded that Adams maintained a voice in the control and direction of the car because she was giving directions to [the driver]. Also, because the accident did not occur until the return trip from Adams’s house, it was reasonable for the jury to find that Adams had the opportunity to anticipate that [the driver] would be entering the sphere of danger because she noticed, on the way to her house, that the signs were down, and that Adams, in using ordinary care, should have kept a lookout. See Brown [v. AAA Wood Prods., Inc., 380 So.2d 784 (Ala.1980) ].”

596 So.2d at 895. See also Brown, 380 So.2d at 787 (evidence demonstrating that “both plaintiffs had planned to go hunting and at the time of the collision the truck in which they were riding was traveling on the wrong side of the road with the driver looking off into the woods” was sufficient to create a jury question as to whether the deceased passenger had been contribu-torily negligent).

Here, reviewing the evidence, as we must, in the light most favorable to Thomas as the nonmovant, we conclude that a summary judgment was inappropriate in this case. Instead, we conclude, as we did in Adams, that the evidence before the trial court in this case was sufficient to create a jury question as to whether Thomas’s conduct rendered him contribu-torily negligent. See Wyser v. Ray Sumlin Constr. Co., 680 So.2d 235, 238 (Ala.1996) (“A defendant relying on the defense of contributory negligence has the burden of proving facts supporting that defense, and it is only when the facts are such that all reasonable men must draw the same conclusion that contributory negligence is ever a question of law for the court.” (citing Marquis v. Marquis, 480 So.2d 1213 (Ala.1985))); Barnett v. Norfolk S. Ry., 671 So.2d 718, 720 (Ala.Civ.App.1995) (“ ‘Even where the evidence does not conflict, the question whether a person has exercised due care is still normally a question of fact for the jury to determine.’ ” (quoting Adams, 596 So.2d at 895)).

First, the record contains no testimony demonstrating that Cook’s view of the intersection was actually blocked by the vegetation and grass on Earnest’s lot. Thomas testified that the grass was “high,” but he indicated that he had no car and had not driven for a while before the accident and that he could not remember the last time he had driven at all. Thomas could not testify as to what Cook saw as she entered the intersection or whether the vegetation and grass blocked her vision.

Further, there is nothing to indicate that Cook did not recognize any alleged danger presented by the tall vegetation and grass on Earnest’s lot. Specifically, Thomas testified that, while waiting to proceed into the roadway, Cook “was looking” and that “[s]he looked both ways.” Later in Thomas’s deposition, the following exchange occurred:

“[Earnest’s counsel]: So let me be clear on this. You didn’t say anything to [Cook] before she pulled out to look out or you can’t see around those weeds or anything to that effect.
“[Thomas]: No.
“[Earnest’s counsel]: Did anything prevent you from making such a statement to her?
“[Thomas]: Only because she was driving, and she was taking safety measures. She looked both ways, so I thought she knew whether she was ready to go or not.”

The foregoing testimony by Thomas demonstrates that Cook appeared to be taking — not failing to take — all necessary safety precautions; thus, the evidence could indicate that there was no known or appreciated circumstance that should have led Thomas to anticipate that Cook was entering a “ ‘sphere of danger,’ ” see Adams, 596 So.2d at 895, or that, in exercising ordinary care, he should have been keeping an additional lookout or exercising care above and beyond the care Cook appeared to be taking. In other words, the jury could conclude from the facts that Cook also recognized any alleged danger in the overgrowth; thus, no warning or action on Thomas’s part was necessary. Moreover, there was nothing before the trial court to indicate that Thomas was either directing Cook’s actions or that he was in a position to exert any type of control over her vehicle or its movement. That fact is especially apparent since, according to Thomas, Cook was driving under the direct supervision of her mother, who was a passenger in the car.

Under the unique facts of this case— that the driver appeared to be exercising appropriate care and was under the apparent supervision of someone other than Thomas — reasonable jurors could disagree as to whether there was a danger that Thomas should have recognized and directed Cook’s attention to. There were, therefore, remaining factual issues as to the issue of Thomas’s alleged contributory negligence, which would be more appropriately resolved by a jury, and which made summary judgment inappropriate under the facts of this case. Based on the foregoing, and because we conclude that the trial court erred in finding Thomas eon-tributorily negligent as a matter of law, we reverse the trial court’s summary judgment for Earnest and Hutto and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and STUART, PARKER, and WISE, JJ., concur.

      . Cook is not a party to the present action.

      . As best we are able to discern from the record, Kimble’s death appears to have been unrelated to the motor-vehicle accident.

      . Because our review of the record revealed that Thomas’s claims against Watson had not been adjudicated by the summary judgment and that Thomas’s appeal was, therefore, from a nonfinal judgment, on January 12, 2011, we remanded this case with instructions for the trial court to make its judgment final pursuant to Rule 54(b), Ala. R. Civ. P., or to adjudicate the claims that remained pending against Watson. In response, and based upon the motion of Thomas, the trial court entered an order dismissing Watson as a defendant, thereby making the summary judgment final.

      . Rule 50(a), Ala. R. Civ. P., as amended effective October 1, 1995, renamed the "motion for a directed verdict” as a "motion for a judgment as a matter of law.”

      . There is an assertion in a brief filed in support of the motion for a summary judgment that Cook told an officer responding to the accident that she could not see vehicles entering the intersection from Fairfax Avenue; however, assertions in motions do not constitute evidence. Carver v. Foster, 928 So.2d 1017, 1025 (Ala.2005), Jackson v. State Farm Fire & Cas. Co., 999 So.2d 499, 502 (Ala.Civ.App.2008).