author: CARLTON, J.,

text:
    Suzanne B. COX, Appellant v. Lawrence A. COX, Jr., Appellee.
    No. 2009-CA-01233-COA.
    Court of Appeals of Mississippi.
    Jan. 25, 2011.
    Rehearing Denied May 24, 2011.

      Carolyn Buttles Mills, Ridgeland, Deborah H. Bell, Jerry L. Mills, Ridgeland, attorneys for appellant.
    William R. Wright, Jackson, Trhesa Barksdale Patterson attorneys for appel-lee.
    Before KING, C.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Suzanne B. Cox appeals the judgment of the Hinds County Chancery Court, which granted her a divorce from her husband, Lawrence A. Cox, Jr. (Larry), on the ground of irreconcilable differences. Suzanne finds error in both the chancellor’s division of the marital assets and the chancellor’s judgment not to award her alimony. Finding no error in the chancery court’s decision, we affirm.

FACTS

¶ 2. Larry and Suzanne married in 1990. The marriage was a second marriage for both Larry and Suzanne. Larry and Suzanne have no children together.

¶ 3. At the time of the marriage, Larry owned Steel Service Corporation (SSC) and acted as chief operating officer of the company. Larry also owned other companies related to the structural steel industry. Suzanne worked as a model and buyer for a local Jackson clothier at the time of the marriage. Suzanne quit working after the marriage to be a homemaker and to travel with Larry. Until their separation in 2005, the couple lived in a home that Larry owned prior to the marriage.

¶ 4. Larry founded SSC in 1969 with a partner. In 1986, four years before the marriage, Larry purchased his partner’s interest in the business and became SSC’s sole owner. Larry paid $3,800,000 for his partner’s interest in the business. In 1988, two years before the marriage, Larry formed Steel Solutions, Inc., a company that designed a computer software program tailored to the steel service industry. Larry originally formed Steel Solutions with a partner, but Larry ultimately bought his partner’s interest and became the sole owner. In 1996, Larry formed another software company, 3-Design, LLC, of which he owned a fifty-percent interest. Additionally, Larry invested funds into a separate company, Steel Fabrications, Inc., and purchased a 1978 Grumman airplane with his separate funds through Cougar, Inc., a holding company.

¶ 5. Suzanne worked in the home for the majority of the couple’s fifteen-year marriage. According to Suzanne, Larry encouraged her to quit working so she would be available to travel with him on business trips. Larry paid Suzanne’s premarital debt that included approximately $11,000 of credit card debt. Suzanne testified that she maintained the couple’s home for the first ten years of the marriage, tending to the cleaning, laundry, shopping, and errands. Suzanne further testified that she entertained Larry’s friends and employees by hosting dinner parties in their home often. Suzanne organized charity events and business events in their home, hiring caterers and staff and overseeing the events. According to Suzanne, she received no regular housekeeping help during the first ten years of the marriage. When she returned to full-time work in 2000, Suzanne hired a housekeeper who came to the home twice per month.

¶ 6. Larry managed the couple’s finances during the marriage. He paid almost all of the household expenses, and he gave Suzanne a monthly stipend of $2,000 for her personal expenses. Suzanne testified that she bought groceries, liquor, clothing, and cosmetics with her monthly $2,000 stipend. She also supported the marriage by writing the checks for the private school tuition for Larry’s grandchildren. The couple lived in the home Larry owned prior to the marriage. Larry purchased the home for $235,000 and spent another $366,000 on renovations before the marriage.

¶ 7. During the marriage, Suzanne started a business selling Shaklee products. Larry purchased the initial inventory for the business and periodically contributed cash to keep the business running. Suzanne also earned her real estate license during the marriage. Larry paid the expenses for Suzanne to obtain her education and real estate license. Upon obtaining her license, Suzanne enjoyed success as a real estate agent, eventually earning a six-figure annual income. Suzanne kept her income, rather than contributing financially to the marriage, even though Larry paid Suzanne’s income and self-employment taxes. Suzanne worked for Charlotte Smith Realty, Nix-Tann Realty, and eventually started a business with Brian Fischer selling high-end homes in the Jackson area.

¶ 8. Larry accused Suzanne of engaging in a long-term affair with Fischer, which Suzanne adamantly denied. Fischer testified at the trial that he and Suzanne engaged in a lengthy romantic relationship while Suzanne and Larry were still married. In fact, Suzanne left Larry and the marital home only one month after Fischer and his wife divorced. Fischer testified that their relationship ended when Suzanne began an affair with another man, Wells Richards. The Chancellor found Suzanne’s testimony denying the affair with Brian untruthful, and he found her tactics inappropriate in falsely claiming that Brian was gay in an attempt to prove no affair occurred.

¶ 9. Suzanne raises the following issues for our review on appeal, all related to property division and alimony: (1) the chancellor erred in finding that SSC did not appreciate in value; (2) the fifty-percent marketability discount used by the chancellor in valuing SSC was unreasonably high; (3) the chancellor erred in failing to value patents held by 3-Design; (4) the chancellor erred in failing to value Larry’s airplane; (5) the chancellor erred in awarding Suzanne only twenty-five percent of the marital estate; and (6) the chancellor erred in refusing to award alimony to Suzanne.

STANDARD OF REVIEW

¶ 10. “This Court’s standard of review regarding domestic relations matters is a limited one. We will not disturb the findings of a chancellor unless manifestly wrong, clearly erroneous, or if the chancellor applied the wrong legal standard.” McKnight v. McKnight, 951 So.2d 594, 595-96 (¶ 5) (Miss.Ct.App.2007). However, we review questions of law de novo. Oswalt v. Oswalt, 981 So.2d 993, 995 (¶ 5) (Miss.Ct.App.2007).

¶ 11. Case law governs how chancellors approach property division in divorce cases. Before dividing the couple’s assets, the chancellor should first classify the couple’s assets as either marital or non-marital. Boutwell v. Boutwell, 829 So.2d 1216, 1221 (¶ 19) (Miss.2002). The supreme court held in Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994), that “[ajssets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Thus, the chancellor may equitably divide only the marital property. Messer v. Messer, 850 So.2d 161, 167 (¶ 24) (Miss.Ct.App.2003) (citing Hemsley, 639 So.2d at 914). Case law also explains that while a spouse’s separate property retains its separate identity during the marriage, “[pjroperty brought into the marriage by one partner and used by the family becomes a marital asset.” Boutwell, 829 So.2d at 1221 (¶ 19).

¶ 12. After classifying the parties’ assets as either marital or non-marital, the chancellor should then proceed to equitably divide the property using the factors set forth by the supreme court in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). Messer, 850 So.2d at 167 (¶ 25). Finally, the chancellor should examine whether the equitable division of the marital property, considered in light of the non-marital assets, adequately provides for both parties. Messer, 850 So.2d at 168 (¶ 26). If the distribution of the parties’ assets, including any separate property, fails to adequately provide for the parties, the chancellor then considers whether to award alimony to one of the parties. Id. With the above guidelines in mind, we turn to a review of Suzanne’s claimed errors of the property division.

I. Whether the chancellor erred in finding that SSC did not appreciate in value during the marriage.

¶ 13. In her first two assignments of error, Suzanne contends that the value assigned by the chancellor to SSC constituted error, and she asserts that the incorrect valuation figures caused error in the chancellor assignment of value. Suzanne argues that the chancellor erred in failing to retroactively apply a lack of marketability discount to the 1990 value of SSC, and with respect to the discount applied, she asserts that the business valuation expert used an unreasonably high discount for lack of marketability to the 2005 value.

¶ 14. Larry alternatively argues that he owned SSC before their marriage, and that she never acquired any interest in the companies. He also claims that no assets of the corporations were commingled with the marital estate, and that SSC, therefore, constitutes his separate property. He also argues that SSC possessed a greater value at the time of the marriage than at that time of valuation on December 31, 2005, and, therefore, no appreciation in the value of the business occurred during the period of the marriage. He submits that since no appreciated value exists, then no value of SSC should be attributed to the marital estate. Larry began SSC in 1969 and acquired 100% ownership in 1986.

¶ 15. The chancellor disagreed with Larry’s assertion that the companies constituted his separate property, even though Larry owned all the stock before the marriage. The chancellor recognized the law equally values the worthy efforts of a spouse, who, by the parties’ agreement, contributes to the success of the marriage by making a home and providing a supportive environment for the primary income-earner to perform. The chancellor, therefore, found that Suzanne was entitled to an award of equitable division of the marital estate, including the value of the appreciation of Larry’s businesses during the period of the marriage.

¶ 16. The findings of the chancellor reflect that he acknowledged that the parties agreed to use December 31, 2005, as a valuation date of the businesses, including SSC. The parties agreed to allow James Thomas Grantham, a certified public accountant, to evaluate the businesses and provide expert opinion as to the fair market value of the assets. In Singley v. Singley, 846 So.2d 1004, 1011 (¶ 18) (Miss.2002), the supreme court noted that the fair market value of a business is the “price at which property would change hands between a willing buyer and a willing seller when the former is not under any compulsion to buy and the latter is not under any compulsion to sell, both parties having reasonable knowledge of the relevant facts.” The determination of fair market value constitutes a question for the trier of fact, and the Mississippi Supreme Court explained that findings by the trier of fact will be respected when they are supported by reasonable evidence in the record and are not manifestly wrong. Allied Steel Corp. v. Cooper, 607 So.2d 113, 118-19 (Miss.1992).

¶ 17. The findings of the chancellor recognize that much of the dispute between the parties as to the value of SSC per-_ tained to the discount figure applied in the analysis of the 2005 value of SSC. The chancellor considered Suzanne’s assertion that management, namely the chief financial officer, of SSC provided material misrepresentations to the valuation expert resulting in an under-evaluation of market value. The chancellor noted that the alleged misrepresentations related to the balance sheet valuation and the factors considered by Grantham in arriving at what he considered the proper discount rate. After considering the testimony and other evidence, the chancellor found credible and persuasive evidence of only one factual mischaracterization that would have resulted in a higher appraisal of market value by Grantham in the valuation process. The chancellor found that the mischaracterization constituted an error of omission of the value of a lawsuit involving SSC as the party plaintiff asserting a claim on work that SSC performed. The chancellor found the value of the lawsuit, $2,238,442, should be considered in the valuation of SSC.

¶ 18. The chancellor explained that the valuation expert, Grantham, concluded that the market value of SSC on December 31, 2005, amounted to $2,470,000, as discounted. The chancellor explained that since the valuation expert applied a 50% lack of marketability discount, then 50% of the lawsuit’s value, or $1,119,221, should be added to that value of $2,470,000. The addition of one half of the value of the lawsuit increased the market value of SSC to $3,589,221 on December 31, 2005. The chancellor provided that Larry’s financial statement dated December 31, 1990, just a few months after the marriage showed the value of SSC to be $4,319,276. The court, therefore, found no gain in the value of SSC from the date of marriage.

¶ 19. Upon review, we find that the business valuation report provided to the court and the parties explains that the opinion of market value is based upon the value of an on-going concern. The report looked at industry conditions as well as the history of the company and the underlying assets. As noted by the chancellor in his findings, the business valuation expert, Grantham, recommended that the chancery court apply a fifty-percent discount for lack of marketability to the 2005 value of SSC due to a variety of changed circumstances. Those circumstances including the following: the company’s lack of marketability based on its inability to obtain bonding for future jobs; SSC’s lack of access to new capital resulting from a lack of bank financing and lack of investors; increased industry costs; and information regarding SSC’s profitability after 2005.

¶ 20. The valuation report also explains that SSC was engaged in four significant lawsuits, and three of the suits involved substantial claims where work had already been performed by SSC. The report reflects SSC stood as a defendant in the fourth suit to recover additional payments. That suit was eventually settled. The report explains in detail that the discount for lack of marketability refers to the ability or inability of an owner of an asset to affect the sale of that asset due to the presence or lack thereof, of an existing market for that asset. In this situation pertaining to SSC, the report explains that no market for closely held businesses existed that would allow SSC’s interests to be sold effectively in a short period of time. The valuation report concludes that since SSC lacked an active market, by definition, SSC was illiquid. The report reviewed the studies of a marketability discounts in determining the lack of marketability discount to apply to SSC. The valuation report found no comparable structural steel contractor transactions and that the discount for lack of marketability fell at the higher end of those set forth in various other studies. The report explained that the lack marketability of SSC resulted in large measure from the inability to get bonding, erosions of profits, lack of access to new capital, and environmental contamination of SSC’s property.

¶ 21. The report explained that after applying the fifty-percent lack of marketability discount to the value of SSC, that the market value of SSC constituted $2,470,000. The chancellor found that Grantham’s valuation omitted the value of a lawsuit in which SSC stood as the plaintiff. As previously noted, to account for the omitted value of the lawsuit in the market value calculation, the chancellor added $1,119,221 to Grantham’s estimated value. The chancellor then assigned SSC a final market value of $3,589,221 on December 31, 2005.

¶ 22. The chancellor acknowledged that the marketability discount created a point of contention between the parties. The chancery court did not apply the same fifty-percent lack of marketability discount to the 1990 value of SSC, which Suzanne argues resulted in an “apples and oranges” comparison when determining whether SSC appreciated during the marriage. The record reflects that Danny Thomas, SSC’s chief financial officer provided the information used to determine the 1990 value of the company. Thomas testified that, in his opinion, SSC was worth $4,319,276 in 1990, when the couple married. The contention arose because Thomas applied no such marketability discount to his estimate of SSC’s 1990 value. When the 1990 value supplied by Thomas is subtracted from the 2005 market value determined by the business evaluation expert, Grantham, the calculation shows that SSC depreciated during the marriage. Thus, no portion of SSC’s value constituted a martial asset subject to equitable division.

¶ 23. However, the valuation report explains why the lack of marketability discount was applied to the 2005 market value, but not to the earlier 1990 market value. The business evaluation shows the discount applied based upon the current conditions impacting current values. The discounts, however, fail to apply retroactively to a time when those market or company conditions warranting the discount failed to exist.

¶24. As stated, both parties agreed to allow Grantham Poole Certified Public Accountants (Grantham Poole) to prepare the business valuation reports. The valuation reports were prepared and provided to both parties on January 16, 2008. Thus, both Larry and Suzanne possessed adequate time to review the reports and prepare questions for trial. Therefore, Suzanne possessed ample opportunity to provide evidence to show why any such discount as to marketability should have applied based upon the conditions existing in 1990.

¶ 25. In further review of the valuation process, we find that the valuation report explained that the valuation considered the three commonly accepted approaches to determining the fair market value of a closely-held business — the asset-based approach, the market-based approach, and the income-based approach. The report itself states that all three valuation methods were considered. However, the valuation expert found the asset-based approach most suitable for SSC due to the lack of publicly available information and SSC’s reported net losses in the years leading up to the valuation date, and the deteriorated profits of SSC and industry economic decline. The valuation expert, Grantham, also said that he considered the factors enumerated in the Internal Revenue Service Revenue Ruling 59-60, which is the commonly used guideline for valuing stock in closely-held corporations. See Bell on Family Law, § 8.04[1], In Adcock v. Mississippi Transportation Commission, 981 So.2d 942, 947 (¶17) (Miss.2008), the supreme court stated the following regarding the determination of fair market value:

Fair market value is an opinion best formed by competent persons pursuing not just one, but three separate and distinct but nevertheless interrelated, approaches to value: the cost approach, the market data or sales comparison approach, and the income approach.... However, all three methods of valuation need not be considered in every appraisal, particularly those of non-commercial property.

(Internal citations and quotation marks omitted). In affirming the trial court’s admittance of the expert testimony, the Court in Adcock explained that the expert’s testimony was based on an established method, not speculation, and that the expert’s opinion was subject to cross-examination. Id. In this case, the report contained specific data and explanations of how Grantham valued SSC, which we find adequately support the chancellor’s valuation of SSC. We will now briefly summarize the evidence contained in the report.

¶ 26. The valuation report reviewed the economic outlook nationally and acknowledged, among other things, that an increase in the cost of construction materials was widely reported. Further, the report examined the economic outlook for the structural steel industry in particular, finding that the industry was extremely competitive and SSC suffered extreme financial stress in the years 2003, 2004, and 2005. With an unexpected increase in costs, SSC was slow to adjust its bids on new jobs to reflect the expensive materials. Consequently, SSC under-bid jobs and their forecasted profits eroded significantly. SSC’s deteriorating financial position affected its ability to obtain capital. SSC also struggled to obtain bonding to cover new jobs and then faced inability to obtain bonding or access to new capital. SSC operated at a net loss in the years prior to the valuation date.

¶ 27. Further, Grantham explained that the report based the lack of marketability discount that applied to SSC’s value on its current conditions related to lack of marketability of its ongoing business concern. The report states that no market for closely held businesses existed that would allow SSC’s interests to be sold effectively in a short period of time. Since SSC lacked an active market as of the 2005 valuation date, it was, according to Grantham, illiquid. Relying on studies pertaining to marketability discounts, SSC’s inability to obtain bonding for new jobs, the erosion of SSC’s profits on jobs subsequent to the valuation date, and SSC’s lack of access to new capital all contributed to a lack of marketability for SSC. Furthermore, environmental contamination of a portion of SSC’s property raised additional concerns for SSC’s marketability. Based on all the factors before him, Grantham recommended a fifty-percent lack of marketability discount be applied to the initial value of SSC.

¶ 28. Larry’s testimony painted a similar picture regarding both the company and the industry conditions that was consistent with Grantham’s findings in his valuation report. Larry testified that SSC was “out of juice at the bank.” He testified that SSC experienced difficulty meeting its payroll obligations, and that he failed to find any investors to put money into SSC. By comparison, Larry testified that SSC’s financial outlook in 1990 was positive, with no banking problems and continued access to bonding. He explained that in 1990 SSC was engaged in plentiful work and was profitable.

¶ 29. Because the fair market value of a business is a question for the trier of fact, in this case, the chancellor, we defer to the chancellor’s findings of fact when supported by the evidence and not manifestly wrong. Allied Steel, 607 So.2d at 118-19. Based on the foregoing, we find substantial evidence in the record to support the chancellor’s valuation of SSC and to support the chancellor’s application of the fifty-percent lack of marketability discount to the 2005 value of the company without applying that same discount retroactively to the 1990 value of the company. Therefore, Suzanne’s assertion of error in the chancellor’s valuation of SSC lacks merit.

II. Whether the chancellor erred in omitting the value of patents from the valuation of 3-Design.

¶ 30. Grantham, the C.P.A., also appraised 3-Design, Larry’s software company related to structural steel businesses. Grantham assigned 3-Design a negative value of $12,994. 3-Design, which earns revenue of $100,000 per year, holds intellectual property patents. Grantham elected not to include the patents in his valuation of 3-Design because, in his view, the patents are intangible assets and are in-eluded in the supreme court’s definition of goodwill, which cannot be used in the valuation of fair market value of a business. So, the valuation report provided to the parties reflected that no value had been assigned to the patents, and then at trial, we note that Suzanne failed to provide the chancellor with any evidence as to value attributable to the patents for the chancellor to consider. Grantham states the following in his report:

Under Mississippi case law, goodwill is not included in the marital estate. Court cases such as Singley v. Singley, 846 So.2d 1004 (Miss.2002) and Yelverton v. Yelverton, 961 So.2d 19 (Miss.2007) set forth the Court’s position. “Goodwill is simply not property and thus cannot be deemed a divisible marital asset in divorce” (Singley). In Sing-ley, the Court goes on to state, “It (goodwill) is a value that exceeds the value of the physical building housing the business and the fixtures within the business.” By focusing on physical assets, this definition appears to expand the accounting definition of goodwill to include all intangible assets other than goodwill in fair market value of businesses subject to division in divorce, our valuation would need to be revised. Based on the case law, we have excluded goodwill and other intangible assets from the determination of the fair market value of the member’s equity of the Company.

¶ 31. Suzanne asks this Court for clarification of whether intellectual property such as patents and copyrights may be part of a marital estate. If intellectual property may be considered part of a marital estate, Suzanne requests this Court to reverse and remand for a valuation of the patents owned by 3-Design.

¶ 32. Suzanne’s assignment of error is misplaced. First, the chancellor failed to find or state that intellectual property could not be considered when assessing the fair market value of the business. While the valuation expert excluded the values of the patents from the valuation of 3-Design, the chancellor provided clearly in his opinion that he received no evidence as to the value, if any, of the patents for his consideration. The chancellor stated:

Mr. Grantham concludes that as of December 31, 2005, Larry’s 50% ownership in this business had a negative value of (-$12,944), which is to say no value. Suzanne points out that he acknowledged that his opinion did not take into account the value of the list of patents held by the company and listed on Trial Exhibit 24. The exhibit does not purport to assign any values to these patents, and, as Larry pointed out in his testimony, some were not even renewed. The exhibit indicates, in fact, that four such patents were not going to be renewed, and that two others were inactive. Be that all as it may, the fact remains that there is no information upon which the Court can conclude otherwise than that there is no value to this entity.

Because no other evidence was presented to show the value of the patents, the chancellor, in his discretion, accepted the value of 3-Design provided by the valuation expert. In Irby v. Estate of Irby, 7 So.3d 223, 235 (¶ 38) (Miss.2009), the supreme court affirmed a chancellor’s valuation of a husband’s separately owned business based on the husband’s testimony alone. The supreme court stated:

The only evidence presented to the trial court as to the value of the Back Clinic was the uncontroverted testimony of Henry. The chancellors of this state are not responsible for the evidence that is presented at trial. As the Court of Appeals has said, it is incumbent upon the parties, and not the chancellor, to prepare evidence touching on matters pertinent to the issues to be tried. Where a party fails to provide information, the chancellor is entitled to proceed on the best information available. The value of the Back Clinic was a factual finding supported by credible evidence.

Id. (internal citations and quotation marks omitted).

¶ 33. We find that the record provides substantial support for the chancellor’s valuation of 3-Design. Therefore, Suzanne’s assignment of error is without merit.

III. Whether the chancellor erred in finding that Larry’s plane had no value as a marital asset.

¶ 34. Larry purchased a 1978 Grumman airplane in 1992 that was placed in a holding company, Cougar. He purchased this airplane with his separate funds. The chancellor found that the airplane constituted a depreciating asset, and therefore he found that the airplane’s value had not appreciated in value during the course of the marriage. The chancellor concluded that the plane, and the separate holding company, Cougar, constituted Larry’s separate property and that the asset “has no value as a marital asset.” The record reflects that the parties stipulated to the underlying value of Cougar, representing the value of the airplane. Any appreciation in value of that asset, had any existed, would have been considered marital property.

¶ 35. Therefore, we find no abuse of discretion in the chancellor’s finding as to this asset.

IV. Whether the chancellor erred in awarding Suzanne only twenty-five percent of the marital estate.

¶ 36. Suzanne next argues that the chancellor erred in awarding her only twenty-five percent of the marital estate. Suzanne contends that the chancellor incorrectly applied the Ferguson factors by (1) giving too much weight to Larry’s direct financial contribution to the accumulation of assets while ignoring Suzanne’s indirect contributions; (2) considering Suzanne’s spending habits without considering Larry’s spending; (3) overemphasizing Suzanne’s affair with Brian Fischer; and (4) taking into consideration Larry’s obligation for debt that had already been used to discount the value of the marital estate.

¶ 37. In his written opinion, the chancellor analyzed each of the Ferguson factors and applied them to the facts of this case. The supreme court enumerated eight factors for chancellors to consider when making an equitable distribution of marital property. Those factors are as follows:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

Id. We limit our discussion of the chancellor’s Ferguson analysis to address only those factors which Suzanne claims the chancellor improperly applied.

1. Substantial contribution to the accumulation of marital assets.

¶ 38. The court in Ferguson instructed chancellors to consider both the direct and indirect contributions of the parties to the accumulation of marital assets. The chancellor noted that the assets in the marital estate came predominantly through Larry’s efforts. Larry enjoyed great financial success through his business ventures prior to his marriage to Suzanne. The chancellor noted under this factor that Suzanne and Larry had help with housekeeping and lawn maintenance during the marriage. Further, in the later years of the marriage, Suzanne earned a sizable income, which she used entirely for herself, in addition to the monthly allowance Larry provided for her personal expenses and household needs. Despite Suzanne’s assertions that the chancellor ignored her indirect contributions to creating a valuable marital estate, the chancellor clearly stated in his opinion that he considered her contributions. The chancellor stated:

There is no question but that Larry’s and Suzanne’s marital estate has been accumulated largely through Larry’s efforts. Larry was well-established, and successful, in his business pursuits before he and Suzanne married. Suzanne, on the other hand, was the owner of a failed business and had a negative net worth at the time of the marriage. None of that is said to denigrate Suzanne’s contributions to the success of the marriage for the time that it might be considered to have been a success or to minimize the extent to which she was a help-mate and company to Larry while they were home in the evening or traveling. But, as Larry points out, they had cleaning help at home and a yardman, and Suzanne was not required to do much in the way of homemaking. She not only spent all the money she made on herself, over $200,000 in some years, but Larry gave her a sum monthly above and beyond that just for her own personal needs. Moreover, Larry paid for everything around the house, including groceries. There is no doubt that when Suzanne and Larry were happy together, in the early years of their marriage, she probably contributed to his mental health in such a way as to enhance his job performance while working, and our appellate courts have indicated that there is certainly value to be attributed to that indirect contribution to the building of the marital estate. However, the Court finds on the evidence that was presented that Suzanne’s contributions to the acquisition of the marital estate were relatively minimal.

¶ 39. The chancellor clearly considered the direct and indirect contributions to the accumulation of Larry’s and Suzanne’s marital assets and found that Suzanne’s indirect contributions were minimal. This Court recognizes that a homemaker’s indirect contributions to the accumulation of assets during a marriage are presumed equal to those of the spouse making direct financial contributions to the marriage. Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). The presumption may be rebutted by showing that the nonworking spouse’s indirect efforts did not substantially contribute to the accumulation of assets. Chamblee v. Chamblee, 637 So.2d 850, 864 (Miss.1994).

¶ 40. In Redd v. Redd, 774 So.2d 492, 496 (¶ 15) (Miss.Ct.App.2000) this Court reversed a chancellor’s judgment for a failure to include certain assets in the marital assets to be divided among the parties. Mary Lu Redd sought a divorce from her husband Gordon Redd on the ground of habitual cruel and inhuman treatment. Id. at 493 (¶ 1). Mary Lu had quit her teaching job early in the marriage to work in Gordon’s newly formed timber business. Id. at 493 (¶ 2). When their fourth child arrived, Mary Lu and Gordon decided that she would stay at home and rear the children. Id. The chancellor awarded Mary Lu approximately twenty-three percent of a nearly $5 million estate. Id. at 494 (¶ 5). In reversing for failure to include assets in the marital property, this Court noted that Mary Lu’s receiving such a low percentage of the marital estate did not itself constitute grounds for reversal. Id. at 496 (¶ 15). This Court stated the following:

We reverse this case and instruct the chancellor on remand to reconsider the distribution of marital assets to Mary Lu in light of the valuation error, keeping in mind the guidelines set forth in Ferguson. We do not address whether the chancellor’s distribution to Mary Lu was equitable since we do not yet know what portion of the discrepancy in the valuation the chancellor will award on remand. We note, however, in light of the highly deferential standard of review, that twenty-three percent of the total estate, standing alone, is not grounds for reversal. This is especially true since the assets awarded to Mary Lu were of the type that would be easy to liquidate, while Gordon received ongoing business concerns together with total responsibility for the liabilities attached thereto.

Id. (emphasis added).

¶ 41. Further, the chancellor considered Suzanne’s direct and indirect contributions to the acquisition of marital assets lessened even further by her significant contributions to the breakdown of the marriage. The chancellor cited Suzanne’s abandonment of her role as homemaker and her affair with Fischer as factors he considered in assessing her contribution to the marital estate. When assessing the parties contributions to the stability and harmony of the marriage, the chancellor stated:

[I]n the early years of the marriage the parties cooked together and traveled together, and they appear to have contributed more or less equally to the stability and harmony of their relationship. It was after Suzanne began to work in the real estate business that she started spending more and more time away from home, eventually spending day and •night with Brian Fisher [sic], very frequently coming home late at night after a day’s work and an evening of drinking. According to Larry’s testimony, which was largely undisputed by Suzanne, she began to neglect what few homemaking duties she had engaged in as she turned her attention outside the home. Suzanne and Larry became more and more distant in their relationship at this point, conjugal relations ceased, and Larry testified that he felt Suzanne slipping away. Larry tried to resurrect the relationship by getting the couple into counseling, but that didn’t work either. Unfortunately, the Court must conclude on the basis of the limited indirect contribution made by Suzanne to the actual accumulation of the marital estate referenced above and the decreasing quantity and quality of the time she spent devoted to the couple’s relationship as just mentioned, that the sum total of her contribution to the marital estate was relatively minimal.

¶ 42. Further, regarding the parties’ direct and indirect contributions to the accumulation of assets, the chancellor noted that Larry established his businesses and achieved success prior to the marriage. Thus, Suzanne “had nothing to do” with the training or education leading to his success. Conversely, the chancellor noted the contributions that Larry made to Suzanne’s success in business. Larry paid off Suzanne’s debt incurred as a result of a failed business Suzanne owned prior to the marriage. He purchased inventory and helped Suzanne start her Shaklee business, helping her find customers among his friends and associates. Finally, the chancellor noted, Larry paid for Suzanne’s education and license to become a real estate agent, enabling her personal financial success and skilled income earning potential.

¶ 43. We find the chancellor acted within his discretion in determining that Suzanne’s direct and indirect contributions to the accumulation of the marital assets were “minimal.” The supreme court in Ferguson instructed chancellors that they may indeed consider factors such as the parties’ contributions to the stability of the home, support of the other spouse in obtaining education and career training, as well as direct financial contributions to the marital estate. Ferguson, 639 So.2d 921, 928 (Miss.1994). Further, as to Suzanne’s affair with Fischer, we note that the chancellor acted within his discretion in considering fault in the breakdown of the marriage when determining how to equitably divide the martial estate. See Brabham v. Brabham, 950 So.2d 1098, 1101-02 (¶ 10) (Miss.Ct.App.2007). We find that the evidence and testimony presented at trial substantially supports the chancellor’s findings that Suzanne made minimal direct or indirect contributions to the accumulation of marital assets. Therefore, we find no merit to this assignment of error.

2. Whether the chancellor overemphasized Suzanne’s spending habits while downplaying Larry’s spending habits.

¶ 44. Suzanne’s next argument centers on the chancellor’s treatment of the second Ferguson factor, the extent to which each spouse has expended, withdrawn, or otherwise disposed of marital assets. Relative to this factor, the chancellor discussed Suzanne’s “excessive spending habits,” which developed around the time that the marriage began to falter. The chancellor relied on Larry’s and Suzanne’s testimony that Suzanne spent, for her own use, $200,000 which Larry entrusted to her in order to protect assets in the event of further business failings. Larry testified that he made clear to Suzanne that she should save the money for their future mutual benefit, rather than spend the money. The chancellor found that “such expenditure by Suzanne, especially in view of the fact that she had not only her own substantial income to spend solely on her personal needs and desires but also a monthly stipend from Larry, was an unreasonable dissipation of the marital estate. The Court will attribute such funds to Suzanne in the distribution of the estate.”

¶ 45. Suzanne asserts that Larry spent approximately $200,000 per year of marital income on his personal assets which retained no value at the time of the separation. However, the chancellor’s opinion, when read as a whole, shows that the only funds credited against Suzanne’s share of the marital assets was the $200,000 Larry entrusted to her for safekeeping, and which she admittedly spent for her own personal use.

¶ 46. The chancellor’s discussion of Suzanne’s spending focused on Suzanne’s retaining her entire income for her personal use, rather than contributing it to the marriage. While retaining the entirety of her own income, Suzanne continued to receive and spend the stipend, $2,000 monthly, from Larry for her personal use. Although Larry spent money on personal expenses as well as business ventures, he also contributed the income he earned to the marital estate. The trial testimony shows that Larry took care of the couple’s finances, including maintenance on the home, insurance, taxes, etc. Thus, Larry contributed his income to the benefit of the marriage, while Suzanne retained her income entirely for her own personal use. The chancellor acted within his discretion when considering the couple’s spending habits, especially Suzanne’s spending, when determining how to equitably distribute the couple’s assets. This issue lacks merit.

3. Any other factor which in equity should he considered.

¶ 47. In her last assignment of error regarding the property division, Suzanne argues that the chancellor erred by considering that Larry remained personally liable for the debt associated with the businesses, because the chancellor took that debt into consideration and used it to reduce the current value of the businesses. The chancellor stated, “[w]hile the Court has found the appreciation in value of the businesses to be a part of then [sic] marital estate, Suzanne will enjoy an award of her portion of same free from debt, which fact, when balanced with the other Ferguson factors herein, justifies a somewhat smaller award to her.”

¶ 48. Suzanne’s argument on this point of error is simply, “it seems unfair” to reduce the marital estate because of the debt owed by the businesses, and then to reduce Suzanne’s share of the marital estate because of the debt. However, the chancellor merely stated that he saw fit to give Suzanne a “somewhat smaller” award based on Larry’s continued personal liability for the debt. We find no abuse of discretion in the chancellor’s judgment to award Suzanne a smaller share of the marital estate, especially when combined with the chancellor’s other considerations.

¶ 49. This issue lacks merit.

V. Whether the chancellor erred in not awarding alimony to Suzanne.

¶ 50. In her final assignment of error, Suzanne contends that the chancellor’s judgment not to award alimony constitutes reversible error. Specifically, Suzanne argues that the chancellor overlooked that at the time of the judgment, Suzanne was unemployed, experienced health problems, had exhausted the $296,000 in her accounts, and had placed her real estate license on inactive status because of her inability to pay for professional insurance.

¶ 51. In Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), the Mississippi Supreme Court delineated twelve factors for chancellors to consider when making a determination whether or not to award alimony. The twelve factors are:

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12.Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

Id.

¶ 52. The chancellor thoroughly discussed each factor in his amended opinion and ultimately found Suzanne not entitled to alimony. We find substantial evidence in the record to support the chancellor’s findings relative to alimony. In reaching his conclusion, the chancellor, despite Suzanne’s assertions to the contrary, examined both Suzanne’s and Larry’s circumstances under the applicable Armstrong factors.

¶ 53. First, the chancellor noted that Suzanne created a successful business for herself, earning a high income. The chancellor additionally noted that the real estate market suffered during the economic downturn; however, noted the chancellor, the steel industry also suffered a downturn. Based on both Suzanne’s and Larry’s ability to manage money and live within their means, the chancellor found that Suzanne could more than adequately support herself in the future without alimony payments from Larry.

¶ 54. Further, the chancellor considered both Larry’s and Suzanne’s health conditions. Larry suffered from serious heart problems, undergoing bypass surgery the year before the separation. He was sixty-five years old at the time of the divorce. Suzanne was only fifty-four, and according to the chancellor, appeared to be in good health. Suzanne argues that her health conditions prevent her from earning the same income she once earned during the marriage. However, the chancellor found that Suzanne lacked credibility on this point. He stated in his opinion: “At trial Suzanne attempted to portray herself as afflicted with various medical complaints and thus unable to continue to work; however, there really was no evidence produced to substantiate such claims, and the Court noted her quick wit, vivacious interaction with all involved in the court proceedings, and believes that she is more than capable of re-entering the woi'kforce to support herself.”

¶ 55. The chancellor reiterated his earlier findings under the marital fault and dissipation of assets factors. The evidence in the record supports the chancellor’s findings under these factors in determining that Suzanne should not receive alimony.

¶ 56. The most telling aspect of the chancellor’s Armstrong analysis is his discussion under the twelfth factor, regarding any other factor applicable in the chancellor’s determination. Under this factor, the chancellor stated that “Suzanne was not truthful either with Larry or with the Court. It is clear that she had an ongoing affair with Brian Fisher [sic] for years before she and Larry separated; she abandoned the marriage when Larry was not only suffering serious business reversals but also very serious health problems. Inasmuch as Suzanne is a relatively young woman, educated, trained, experienced and more than capable of making a very good living for herself, and awarded a portion of this marital estate which the Court finds is commensurate with the contribution she made to the marriage and to the accumulation of the marital estate during the period these parties were married and living together, the Court does not find that she is entitled to any award of alimony.”

¶ 57. Suzanne’s argument that the chancellor erred in not awarding her alimony is without merit.

CONCLUSION

¶ 58. Because appellate courts defer to a chancellor’s findings of fact, we may only reverse a chancellor if his findings are manifestly wrong, clearly erroneous, or if the chancellor applied an inappropriate legal standard. In this case, we find substantial support in the record for the chancellor’s findings regarding the value of the marital estate, nrarket value of the businesses including SSC, the property division, and the alimony determination. The chancellor properly considered the facts of the case under the appropriate legal standards, and his findings of fact will not be disturbed. See id. Therefore, we affirm the judgment of the chancellor.

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

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

      . The record shows that the parties stipulated to the value of some of their assets.

      . The valuation report explained that the company’s financial position had deteriorated, and that its primary lender became concerned over the company’s viability. The company’s loans were then placed on a non-accrual status by the lender. In the third quarter of 2004, the bank hired a firm to explore options for shifting exposure on the loans and then SSC retained this same firm to assist in seeking additional capital and debt and equity partners. Unfortunately the report said that the firm had been unsuccessful in generating any interest in SSC.

      . The report acknowledged that numerous studies had been performed during the past thirty-five years to determine the average levels of discounts for lack of marketability. However, these studies fell into two main categories of restricted stock studies and studies of transactions in closely held stocks prior to, initial public offerings (IPOs).

      . The chancellor found that the value of the lawsuit was $2,238,442. After applying the fifty-percent lack of marketability discount, he arrived at a value of $1,119,221 for the lawsuit.

      . The asset-based approach measures the value of a business based on the net value of the tangible and intangible assets. Bell on Mississippi Family Law § 8.04[2][a]. See also Yelverton v. Yelverton, 961 So.2d 19, 30 (Miss.2007) (holding that goodwill may not be included in a business valuation for property division incident to a divorce).

      . The market-based approach determines the value of a business based on the sale of comparable businesses. Bell, § 8.04[2][b],

      . The income-based approach values a business based on an estimate of the company's future earnings. Bell, § 8.04[2][c].

      .The factors set forth in Revenue Ruling 59-60 for valuing a closely-held corporation are as follows: (a) the nature and history of the business; (b) the economic outlook of the business and the industry in general; (c) the book value of the stock and the financial condition of the business; (d) the company's earning capacity; (e) the business's dividend-paying capacity; (f) the company’s goodwill or other intangible value; (g) the stock sales and the size of the block of stocks to be valued; (h) the market price of stocks in similar companies. Rev. Rui. 59-60, 1959 C.B. 237.

      . Ferguson, 639 So.2d at 928.

      . See Rush v. Rush, 932 So.2d 800, 807-08 (¶ 25) (Miss.Ct.App.2005) (holding in alimony determination that wife's four failed business ventures, all known to husband, as well as one-time loss of $10,000 in stock trading did not constitute a dissipation of marital assets. The husband knew of the wife's ventures and approved), rev'd in part on other grounds, 932 So.2d 794 (Miss.2006).

      . See Bumpous v. Bumpous, 770 So.2d 558, 560-61 (¶ 13) (Miss.Ct.App.2000). In Bum-pous, this Court affirmed a chancellor’s award of rehabilitative alimony to a wife who received a heavily debt-laden business in the chancery court's equitable division of property. The chancellor gave sole responsibility for the debt to the wife, but ordered the husband to pay alimony for forty-four months, which coincided with the time required to pay off the loan balance. Id.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Douglas MILLER, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01907-COA.
    Court of Appeals of Mississippi.
    Feb. 15, 2011.
    Rehearing Denied May 24, 2011.

      Douglas Miller, Appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before KING, C.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court:

¶ 1. Douglas Miller, appearing pro se, appeals the Circuit Court of Oktibbeha County’s dismissal of his motion for post-conviction relief. Finding no error, we affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. In January 2008, an Oktibbeha County grand jury returned a two-count indictment against Miller for the sale of marijuana (less than thirty grams) and possession of marijuana (more than thirty grams but less than 250 grams). As part of Miller’s plea agreement, Count II of the indictment was amended to exclude charging Miller under Mississippi Code Annotated section 41-29-147 (Rev.2009) as a prior violator of the Uniform Controlled Substances Act and to exclude the language in Count II reading “with intent to distribute said marijuana to another person or persons to the Grand Jury unknown.” In August 2008, Miller entered a guilty plea to both counts as amended.

¶ 3. For Count I, the trial court found that Miller was a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007) and a prior violator of the Uniform Controlled Substances Act, thereby sentencing him to serve a term of six years in the custody of the Mississippi Department of Corrections (MDOC). The trial court also ordered Miller to pay a fine of $6,000 and all court costs. For Count II, the trial court sentenced Miller to three years in the custody of the MDOC as a habitual offender under section 99-19-81, imposing a fine of $6,000, and all court costs. Neither of Miller’s sentences was to be reduced nor suspended, nor was he eligible for parole, probation, early release, or any good time credit. The trial court ordered the sentences to run consecutively-

¶ 4. In March 2009, Miller filed a pro se “Notice of Appeal” of his August 2008 sentencing order. The trial court entered an order stating Miller was improperly attempting to appeal his guilty plea and suggested Miller file a motion for post-conviction relief. Miller did so in June 2009, raising the following issues: the trial court erred in sentencing Miller as a habitual offender as his two prior felonies were over ten years old; the sentence in Count I was improper; he received ineffective assistance of counsel; the search and seizure was illegal; and the charge in Count II of ppssession of marijuana was improper. Miller also filed a motion to expunge his record of two prior felonies of aggravated assault and sale of cocaine.

¶ 5. On June 26, 2009, the trial court dismissed Miller’s motion for ^ost-conviction relief and found his offenses could not be expunged as a matter of law. Miller now appeals, challenging the legality of his sentence for Count I, and claiming ineffective assistance of counsel and a-defective indictment.

STANDARD OF REVIEW

¶ 6. The trial court’s dismissal of a motion for post-conviction relief will not be disturbed unless the decision is found to be clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). Questions of law are reviewed de novo. Id.

ANALYSIS

¶ 7. Miller raises three specific issues, which we shall discuss in turn. Miller also claims that the trial court never actually ruled on his motion for post-conviction relief, but only on the motion to expunge his prior felonies. While we find that the court’s order could have been clearer, it does state that the trial court reviewed the record of proceedings, sentencing order, and pleadings for the post-conviction matter. The order stated that Miller’s prior felony convictions cannot be expunged as a matter of law, and then the trial court dismissed the “petition” without the need for a hearing. We take “petition” to mean the motion for post-conviction relief; thus, we find the trial court ruled on Miller’s motion for post-conviction relief.

1. Sentence

¶ 8. Generally, Miller contends that an illegal sentence is appealable despite a guilty plea, citing Berry v. State, 722 So.2d 706, 707 (¶ 5) (Miss.1998). However, we note this is no longer the law. Mississippi Code Annotated section 99-35-101 (Supp. 2009) was amended and became effective July 1, 2008, one month prior to Miller’s guilty plea. The statute was amended to prohibit any direct appeal upon entry of a guilty plea. Prior to the amendment, a defendant who entered a guilty plea and was sentenced could challenge the validity of his sentence on direct appeal. Burrough v. State, 9 So.3d 368, 374 (¶ 19) (Miss.2009); Trotter v. State, 554 So.2d 313, 315 (Miss.1989); Berry, 722 So.2d at 707 (¶ 5). Since Miller raises the validity of his sentence in a post-conviction relief motion, however, we may consider his argument if he meets the requirements of Mississippi Code Annotated section 99-39-5 (Supp.2010).

¶ 9. Specifically, Miller argues that his sentence is illegal for Count I. Miller received six years in the custody of the MDOC and a fíne of $6,000 for the sale of marijuana in an amount less than thirty grams, pursuant to Mississippi Code Annotated section 41-29-139 (Rev.2009) in Count I. He was sentenced as a habitual offender under section 99-19-81, which states that if a person has been convicted of a felony twice previously “arising out of separate incidents at different times” and who was sentenced to separate terms of one year or more, he “shall be sentenced to the maximum term of imprisonment” for that felony, “and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.” Miller’s sentence was also enhanced under section 41-29-147 due to a prior drug conviction. This statute provides in pertinent part: “any person convicted of a second or subsequent offense under this article may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.” Miss.Code Ann. § 41-29-147.

¶ 10. “Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Gibson v. State, 731 So.2d 1087, 1097 (¶ 28) (Miss.1998) (quoting Hoops v. State, 681 So.2d 521, 537 (Miss.1996)). Here, however, the trial court had no discretion due to the effect of section 99-19-81. Accordingly, Miller received the maximum sentence and fíne for the offense without eligibility for parole or probation under section 99-19-81, and the sentence was doubled under section 41-29-147. Miller’s sentence and fíne for Count I does not violate the statutory maximum and is not illegal.

2. Indictment

¶ 11. Miller claims his indictment for Count I was defective because in the body of the document the word “cocaine” was crossed out and the word “marijuana” was written above it, and the indictment was never properly amended or presented to the grand jury. We note that Miller did not raise this issue before the trial court.

¶ 12. The Mississippi Supreme Court has held that the entry of a guilty plea does not waive such jurisdictional defects as the failure of an indictment to charge an essential element of an offense. Kincaid, v. State, 711 So.2d 873, 877 (¶ 20) (Miss.1998) (citing Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989)). Therefore, Miller is correct that he makes a jurisdictional challenge to the indictment which cannot be waived even though he pleaded guilty. However, Miller’s argument lacks merit.

¶ 13. We note the indictment only has an internal inconsistency and does not contain the wrong controlled substance throughout. At the top of the indictment is typed the correct controlled substance of marijuana for both offenses; it is in the body of the indictment that the incorrect substance of cocaine is crossed out and replaced with marijuana. The record is unclear as to when this correction was made. It is well established that “[a]ny amendment not approved by the grand jury must be of form only and must not affect the substance of the charge pending.” McLarty v. State, 842 So.2d 590, 593 (¶ 11) (Miss.Ct.App.2003) (citing Rhymes v. State, 638 So.2d 1270, 1275 (Miss.1994)). However, it is Miller’s burden to prove by a preponderance of evidence that he is entitled to post-conviction relief. Miss. Code Ann. § 99-39-23(7) (Supp.2010). Therefore, in order to prove his indictment is defective, Miller must show that the internal correction was made after the grand jury approved the indictment, and the two offenses at the top of the indictment with the correct controlled substance of marijuana were typed in after the grand jury’s approval. Miller, however, offers no such proof. Therefore, this issue is without merit.

3. Ineffective Assistance of Counsel

¶ 14. Miller argues that his counsel was ineffective. Specifically, he claims his guilty plea was deceptively induced by his defense counsel; defense counsel should have known and informed Miller that his indictment was defective; and his attorney should have alleged an illegal search and seizure of the drugs. Miller concludes that the outcome of the plea would have been different but for these errors.

¶ 15. In order to prove ineffective assistance of counsel, the defendant must show: (1) counsel’s performance was deficient, and (2) this deficiency prejudiced the defense. Liddell v. State, 7 So.3d 217, 219 (¶ 6) (Miss.2009) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance .... ” Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052.) In the context of guilty pleas, the defendant must show “unprofessional errors of substantial gravity” and show “that the deficient conduct proximately resulted in his guilty plea, and but for counsel’s errors, he would not have entered the plea.” Cole v. State, 918 So.2d 890, 894 (¶ 10) (Miss.Ct.App.2006) (citing Reynolds v. State, 521 So.2d 914, 918 (Miss.1988)). The defendant must allege facts of ineffective assistance with “specificity and detail.” Kinney v. State, 737 So.2d 1038, 1041 (¶ 8) (Miss.Ct.App.1999) (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)). Moreover, “the trial court may dismiss a motion for post-conviction relief if the petitioner fails to submit affidavits in support of his allegations” of ineffective assistance; petitioner’s bare assertions are insufficient. Mayhan v. State, 26 So.3d 1072, 1076 (¶ 10) (Miss.Ct.App.2009).

¶ 16. Miller fails to show how his counsel was deficient and how this prejudiced his defense. The record does not support any of his allegations of incompetence. The guilty plea petition and transcript of the plea hearing show counsel was competent and gave “reasonable professional assistance” during all stages of the proceedings. Further, Miller did not submit 'affidavits supporting his allegations, but only offered bare assertions of ineffectiveness, which is insufficient. At the plea hearing, Miller testified that he had discussed his case with his lawyer and was satisfied with his advice. He admitted guilt on both counts. Miller also signed a sworn oath — his petition to enter a plea of guilty — which stated his lawyer had fully informed him on all matters of his case (including the nature of the charges and possible defenses; counsel did not threaten or induce him to enter a plea; and he was satisfied with his counsel’s advice). “Great weight is given to statements made under oath and in open court during sentencing.” Ward v. State, 879 So.2d 452, 455 (¶ 11) (Miss.Ct.App.2003) (quoting Gable v. State, 748 So.2d 703, 706 (¶ 11) (Miss.1999)). We find no merit to this argument.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

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


author: IRVING, P.J., CARLTON, J.,

text:
    Tony ELLIOTT a/k/a Tony Elliot, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01516-COA.
    Court of Appeals of Mississippi.
    April 19, 2011.

      Leslie S. Lee, Jackson, Sharon Anglin Counts, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises out of Tony Elliott’s conviction, in the Pike County Circuit Court, for armed robbery, conspiracy to commit armed robbery, receipt of stolen property, and conspiracy to receive stolen property. Elliott was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections for the armed robbery, and to five years for each of the other convictions, with the sentence for the conspiracy to commit armed robbery to run consecutively to the sentence for armed robbery and the sentence for receipt of stolen property to run consecutively to the sentence for conspiracy to commit armed robbery. However, the circuit court suspended the imposition of all but the twenty-five-year sentence and sentenced Elliott to five years of post-release supervision. Feeling aggrieved, Elliott appeals and contends that: (1) his indictment is fatally defective; (2) the circuit court lacked jurisdiction over crimes that took place in Louisiana; (3) the circuit court’s judgment is against the overwhelming weight of the evidence and insufficient evidence exists to support the judgment; (4) the circuit court erred in allowing testimony regarding extraneous bad acts; (5) the prosecutor committed prosecutorial misconduct; and (6) cumulative errors deprived Elliott of his right to a fair trial.

¶ 2. We agree that the circuit court was without jurisdiction over the crime of conspiracy to commit the crime of receipt of stolen property that occurred solely in Louisiana. Therefore, we affirm in part and reverse and render in part the judgment of the circuit court.

FACTS

¶ 3. Elliott, Travis Andry, and Walter Wilson met in Louisiana and decided to steal a vehicle, specifically a black Jeep that was located in Louisiana. The trio stole the Jeep together and drove it to Pike County, Mississippi. Once in Mississippi, they stayed at a hotel and visited an apartment complex in McComb, Mississippi. According to Wilson, who testified at trial, the trio played a gamed of dice at the apartment complex and discussed which vehicle to steal later. After they finished playing dice, the men left and went back to their hotel. Later the same night, they returned to the apartment complex.

¶ 4. Late that night, Melissa Martin was asleep in her apartment when someone knocked at her door. Melissa looked outside and recognized Andry, whom she had known for about six months. Andry stated that he needed to use the restroom, and Melissa let him in. Wilson was with An-dry and also entered Melissa’s apartment. Wilson also asked to use the restroom and went upstairs, ostensibly to do so. At that time, Andry was in Melissa’s kitchen, and Melissa was on the couch in her living room. According to Melissa, her apartment door was opened by someone outside the apartment. The entryway’s screen door was still closed, but Andry walked to the door and opened it. At that time, Elliott entered the apartment. Melissa did not know Elliott, and he was wearing a mask. Melissa stated that Elliott had a gun and that he pointed it at her and told her to shut up or he would shoot her.

¶ 5. When Andry exited the kitchen, Melissa noticed that he was holding a gun, which she had not seen when he entered the apartment. Andry and Elliott proceeded to question Melissa as to the owner of a yellow Mustang outside. The vehicle belonged to Jeffrey Hudson, who was dating Melissa’s sister, Tabitha, at the time. Hudson was upstairs asleep when Andry, Elliott, and Wilson entered the apartment. The group eventually went to the Mustang, broke a window on it, entered the vehicle, and damaged the steering column.

¶ 6. At trial, Melissa testified that she believed that Andry and Elliott wanted the Mustang; when questioned by Elliott’s attorney as to whether she remembered agreeing with the police that the men seemed to want something other than the cai’, Melissa denied that had happened. Melissa’s pretrial statement to the police was played for the jury. Elliott’s statement to the police shortly after the incident was also played. In that statement, Elliott acknowledged that Andry was going to pop the ignition on the Mustang in order to steal it. Elliott remained silent while the officer questioning him recited what had happened during the robbery at the apartment. When the officer questioned Elliott regarding the guns that were used during the robbery, Elliott stated that he “didn’t think” that those guns were the ones that, they had taken to the apartment. Essentially, Elliott acknowledged that Andry was going to steal the Mustang and that they had taken guns to the apartment.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Indictment

¶ 8. In his first contention of error, Elliott argues that the portion of the indictment that charged him with conspiracy to possess stolen property was fatally unclear; therefore, he could not tell whether he was being charged with conspiracy to possess stolen property or conspiracy to commit grand larceny. This contention of error is moot, as we are reversing that conviction on other grounds.

2. Jurisdiction

¶ 9. In his second contention of error, Elliott argues that the circuit court lacked jurisdiction to try him for the crime of conspiracy to possess stolen property, because any conspiracy that occurred happened in Louisiana. We agree.

¶ 10. The indictment against Elliott alleged in Count IV that Elliott, Wilson, and Andry had “conspirefd] and agree[d] each with the other ... to ... commit the crime of possession of stolen property” on November 9, 2006. Neither the indictment nor the instructions presented to the jury indicated whether the stolen property at issue was the black Jeep or the yellow Mustang. However, Count III of the indictment, which charged Elliott and the others with possession of stolen property, referenced only the black Jeep. Looking at the indictment as a whole, it appears that Count IV was intended to apply to the conspiracy to steal the Jeep.

¶ 11. From the record, it is clear that the conspiracy to steal the Jeep occurred wholly in Louisiana by and between Elliott and the others while they were in Louisiana. There is nothing in the record to indicate that any of the three men were in Mississippi at any point during the conspiracy to steal the Jeep. At trial, Wilson testified that he was from Harvey, Louisiana and that Andry drove to Harvey, where Elliott and Wilson were at the time. "When asked what they did in Harvey, Wilson stated that they “got another car” in Harvey. Wilson described the vehicle as a Jeep, and he stated that he, Elliott, and Andry all stole the Jeep together.

¶ 12. “[T]he crime of conspiracy is complete when two or more people enter into a ‘common plan and knowingly intend to further its common purpose.’ ” Berry v. State, 996 So.2d 782, 789 (¶ 21) (Miss.2008) (quoting Sanderson v. State, 883 So.2d 558, 560 (¶ 8) (Miss.2004)). Stated differently, “[t]he crime of conspiracy is complete when there is evidence of an agreement.” Id. (citing State v. Thomas, 645 So.2d 931, 933 (Miss.1994)). However, as we will discuss shortly, some Mississippi cases have found continuing jurisdiction for a conspiracy even after the conspirators formed an agreement.

¶ 13. The State presents two arguments in opposition to Elliott’s. First, the State contends that this issue was waived due to Elliott’s failure to raise it below. Second, the State argues that the conspiracy to possess the stolen Jeep continued into Mississippi. As to the former, we note that the “question of jurisdiction may [generally] be raised at any time.” State v. Rogers, 241 So.2d 346, 347 (Miss.1970) (citing Brasham v. State, 140 Miss. 712, 106 So. 280 (1925)). Therefore, it is of no moment that Elliott failed to raise the question of jurisdiction in the circuit court. As to the latter, we find the cases touching on jurisdiction and the continuation of a conspiracy to be distinguishable from the present case.

¶ 14. In Taylor v. State, 682 So.2d 359, 362 (Miss.1996), the Mississippi Supreme Court found that the Walthall County Circuit Court retained jurisdiction over Eddie Taylor, who had alleged that the agreement that formed the basis of his conspiracy charge occurred solely in Louisiana. The supreme court stated the following regarding the jurisdiction of Taylor’s conspiracy charge:

Taylor claims that the lower court lacked jurisdiction over the conspiracy because the agreement allegedly took place in Louisiana, not in Walthall County, Mississippi. There was some conversation between Mr. Lampton, District Attorney, and Judge Starrett that the agreement took place on the way to Mississippi. Even if the agreement was made in Louisiana on the way to Mississippi, the conspiracy continued up until the commission of the crime in Walthall County. This Court in Norman v. State, 381 So.2d 1024, 1029 (Miss.1980), stated that once a defendant is established as being a conspirator, he remains a part of the conspiracy until he has extricated himself therefrom by making full disclosure to the law enforcement authorities of his involvement and cessation of activity therein, or by communicating his abandonment thereof in a manner reasonably expected to reach his co-conspirators. The burden [of] establishing his withdrawal rests upon the defendant. Hyde v. U[nited] S[tates], 225 U.S. 347, 369, 32 S.Ct. 793, 56 L.Ed. 1114 (1912); U[nited] S[tates] v. Borelli, 336 F.2d 376, 388 (2d Cir.1964).
Thus, the crime of conspiracy was committed in whole or in part in Walthall County, Mississippi. However, the record clearly shows by Taylor’s own testimony that he and James Gatlin agreed on the porch of the murder victim’s home in Walthall County to rob him.

Id.

¶ 15. In the present case, the alleged conspiracy, which began in Louisiana, was formed for the purpose of stealing the Jeep, which was subsequently stolen in Louisiana. Even under the logic from Taylor, wherein the court found that the conspiracy continued “until the commission of the crime,” the conspiracy here would have only continued until the theft of the Jeep in Louisiana. Under these circumstances, we find that the circuit court lacked jurisdiction. Therefore, we reverse and render Count IV, wherein Elliott was convicted of conspiracy to possess stolen property.

3. Sufficiency of the Evidence

¶ 16. In his third contention of error, Elliott challenges the sufficiency of the evidence supporting his conviction and also contends that his conviction is against the overwhelming weight of the evidence. For reasons that will be discussed more fully below, we find that there is sufficient evidence to support Elliott’s remaining convictions.

¶ 17. We review the sufficiency of the evidence under a de novo standard of review. Tillis v. State, 43 So.3d 1127, 1133 (¶ 17) (Miss.2010). “[T]he 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.’ ” Thomas v. State, 42 So.3d 528, 537 (¶ 31) (Miss.2010) (quoting Jones v. State, 904 So.2d 149, 153 (¶ 12) (Miss.2005)). In considering the sufficiency of the evidence, we must “accept as true all evidence that is favorable to the State.. /. ” Id. (quoting Clemons v. State, 460 So.2d 835, 839 (Miss.1984)).

¶ 18. In the interest of clarity, we will examine the factual basis for each of Elliott’s convictions separately.

A. Count I: Armed Robbery

¶ 19. In Count I, Elliott was convicted of armed robbery. The indictment alleged that Elliott: “willfully, unlawfully, and feloniously ... attempted] to take from the presence of Melissa Martin, automobile keys and/or other personal property of Jeffrey Hudson and Melissa Martin, against her will, by putting [her] in fear of immediate injury to her person....”

¶ 20. At trial, Melissa testified, in part, as follows during direct examination:

Q. What occurred when you got home [from work]?
A. Well, let’s see ... we watched TV for a little while ... and then we kind of dozed off and went to sleep and I heard a knock at my door, and when I opened the door, it was Travis and he was, like, I have to use the bathroom, or let me in. I was, like, what are you doing out this late? And he was, like, just around and he was, like, I have to use the bathroom. So I opened the door, as being someone I knew, I opened the door and let him in and let him go to the restroom. And he had let another guy in which [sic] was [Wilson], I take it, because I had never seen him before. And so Travis went upstairs to use the restroom and then he came down. And then I like kinda heard something at my screen door and as I looked, it was a guy standing at my screen door and his face was covered and the bottom of his mouth was covered ... he didn’t say anything. So I went, Travis walked toward inside [sic] my kitchen, which was like right next to the living room, or whatever, so I walked back there and then he came back out and he opened the door and then the guy came in with the gun.
Q. Who opened the door?
A. Travis opened the door.
Q. And what did the guy do?
A. He held the gun up and said, “Sit down and be quiet,” and I laughed for a minute and I’m, like, what’s going on? And then Travis pulled out his little gun and I said I’m not playing; you know, Halloween just passed and it’s too late to play dressup. And then he was like, no, we serious and I’m, like, what? And then he was, like, yeah, we serious. He said, “Calm down,” and he was, like, where’s the guy that drives the yellow car? And [I] said, well, he’s not here. But he was there the whole time, but I’m, like, he’s not here. He was like, well, he was talking a lot of noise earlier, where is he? I’m, like, what are you talking about, cause I know [Hudson] and [Hudson] never messes with anybody or bothers anybody and most of the time he comes to my house he’s always inside. He never hangs outside, never mingles with other people. He’s just there, you know, to sit and be with my sister. So I knew it couldn’t a’been [sic] anything like that.
[PROSECUTOR SHOWS MELISSA A GUN]
Q. Do you know who had this?
A. That would be the other guy that came in with the bandana and stuff tied around his head, with the dreads.
Q. Do you see him in the courtroom today?
A. Yes, I do. (Pointing to defendant).
Q. When he came into your room, what did he say?
A. “Sit down and be quiet and don’t move or I’ll shoot you.”
And what was [Elliott] saying? O
He was, like, sit down, don’t move or we’ll shoot you. <¡
At that moment.... O
I knew something was wrong, something, you know, wasn’t right. And I kept asking him, you know, like, why do you want him? What did he do? And he never did say, but he was, like, where is he now? Where is he now? And I was, like, well, he’s not here. He’s at work, and he left the car with my sister, we have the car this weekend. And he was, like, I know he [sic] here and I said, “No, he’s not.” <i
Why did you say he left the car here? O
A. Because I guess they were thinking that he was there because the car was there and that he knew somebody had the keys to the car in there and he didn’t think he would be the type to just leave his car, you know, in that location.
Q. So they were asking for the car or asking for the keys to the car?
[DEFENSE ATTORNEY]: Objection, leading.
A. Yeah, basically.
[THE COURT]: Sustained as to leading.
Q. Did they exit your apartment?
A. They only exited my apartment after, you know, like, he was, like, if he not in here and he won’t come out, then I’ll make him come out. So he ran straight towards [sic] the car, and my little sister then came downstairs and she was, like, what’s going on? I guess she heard the confusion downstairs and so she came downstairs and she was, like, what is going on? And then she heard me tell him he wasn’t here, like, “No, he’s not here.” That’s, you know, we were outside then. And then she was, like, what are you doing? What are you doing? And he was, like, well, I know he’s in there. I was like, no, he’s not. And he was, like, well, I’m fixing to get this car, whatever, like that. And so I was, like, well, what’s really going on? And then she went inside and I guess that’s when she called the police or whatever like that and I was telling ‘em y’all better; just leave [sic]. Get away from us, just leave.
Q. And did they?
A.No....
Q. Why did they leave?
A. It was after the guy, [Wilson] said, you know, somebody’s done called the police. It’s time to go. And, you know, I don’t know for sure if they heard a siren or anything like that, but my sister came back outside and that’s when she was, like, yeah, the police are on their way, you know, this and that, and that’s when they left.
Q. Where was Travis at when she made that comment?
A. He was sitting in the car.
Q. He was trying to crank the car and playing with CDs.

¶ 21. Although Melissa’s testimony indicates that Andry and the others were attempting to locate the owner of the yellow Mustang, nothing about the men attempting to locate Hudson precludes a conclusion that the men were attempting to steal property from Hudson. Given Elliott’s statement prior to trial that he and the others went to the apartment with guns and that he knew Andry was going to pop the ignition in order to steal the Mustang, we find that sufficient evidence exists to prove that Elliott committed the offense of armed robbery.

B.Count II: Conspiracy to Commit Armed Robbery

¶ 22. In Count II of the indictment, Elliott was charged with conspiracy to commit armed robbery. Wilson testified that he, Andry, and Elliott decided to steal a vehicle from the apartment complex where Melissa lived. Wilson testified that he did not know Hudson, nor did he know whether Andry or Elliott knew Hudson. Wilson explained that they first went to the apartment complex and were “shooting dice” and that they looked around for a vehicle to steal; Wilson testified that the Mustang was not there at that time. Despite stating that the ear was not at the apartment complex when they went there, Wilson then testified that they decided to steal the Mustang and take it to a chop shop. Wilson stated that their plan was to “go in there and get the keys and get the car and get the money....” When asked about what Andry and Elliott were demanding from the occupants of the apartment, Wilson stated that they were demanding “[t]he keys and the money.” During cross-examination, it was revealed that Wilson had pleaded guilty to charges related to the alleged armed robbery; however, Wilson claimed that he did not know how much time he had gotten or what the sentencing recommendation was in his case.

¶ 23. “The general rule in Mississippi is that the uncorroborated testimony of an accomplice or a co-conspirator may be sufficient to sustain a conviction.” Payton v. State, 897 So.2d 921, 936 (¶ 38) (Miss.2003) (citations omitted). However, an accomplice’s testimony is not sufficient if it is “unreasonable, self-contradictory, or substantially impeached.” Id. (citing Flanagan v. State, 605 So.2d 753, 758 (Miss.1992)).

¶ 24. Here, Wilson’s testimony was corroborated by Elliott’s pretrial statement to the police, wherein he said that Andry was going to pop the ignition on the Mustang in order to steal it. Although there were some inconsistencies within Wilson’s statement, under the circumstances, we find that Wilson’s testimony and Elliott’s statement are sufficient to sustain Elliott’s conviction for conspiracy to commit armed robbery.

C.Count III: Receipt of Stolen Property

¶ 25. Finally, Elliott argues that “[i]t was a legal impossibility for the jury to convict [Elliott] of possession of stolen property [because the] testimony established that Travis, Walter, and Tony stole the 2004 Jeep Liberty in Louisiana.” In support of his position, Elliott cites Young v. State, 908 So.2d 819, 830 (¶ 31) (Miss.Ct.App.2005) (citing Hentz v. State, 489 So.2d 1386, 1389 (Miss.1986)).

¶ 26. In its brief, the State argues that Elliott did not actually steal the Jeep. With all due respect, the record completely belies this contention. The only evidence regarding the Jeep’s theft came from Wilson, who stated unequivocally that he, An-dry, and Elliott had stolen the Jeep together. In fact, the prosecutor specifically asked Wilson who had stolen the Jeep, and Wilson responded: “Me, Travis, and Tony Elliot [sic].” Wilson elaborated that An-dry sat in the driver’s seat and physically “popped” the Jeep, but Wilson stated that they all picked the Jeep together and went to the location and stole it together.

¶ 27. Section 97-17-70 (Supp.2010) provides in pertinent part as follows:

(1) A person commits the crime of receiving stolen property if he intentionally possesses, receives, retains[,] or disposes of stolen property knowing that it has been stolen....
(3)(a) Evidence that the person charged under this section stole the property that is the subject of the charge of receiving stolen property is not a defense to a charge under this section; however, dual charges of both stealing and receiving the same property shall not be brought against a single defendant in a single jurisdiction.

Subsection (3)(a) of section 97-17-70 was added in 2007. It is clear from this subsection that a person who has stolen property may now be charged with either receiving or stealing the property, but not both. It is also clear that, notwithstanding the fact that the Jeep was stolen in Louisiana, Elliott could be prosecuted in Mississippi for receipt of stolen property because he possessed the stolen Jeep while in Mississippi. Accordingly, we find no merit to this issue.

A Extraneous Bad Acts

¶ 28. In his fourth contention of error, Elliott contends that the circuit court erred in allowing the State to present evidence regarding the theft of the Jeep in Louisiana. Elliott contends that the Jeep’s theft was an extraneous bad act, evidence of which should have been inadmissible.

¶ 29. At the outset, Elliott argues that it should have been obvious to the circuit court and the prosecutor that the circuit court had no jurisdiction over the theft of the Jeep. Elliott contends that, since the court had no jurisdiction, evidence of the Jeep’s theft needed to comply with the standard rules for accepting evidence to be admissible at trial. It is obvious that Elliott’s argument is premised on the erroneous notion that he could not be prosecuted in Mississippi for possessing and retaining possession in Mississippi of the Jeep that was stolen in Louisiana. The State was obligated to prove as an element of the crime of receipt of stolen property that the property was in fact stolen and that Elliott knew that it was stolen. Since the theft occurred in Louisiana, evidence concerning the theft that occurred there was relevant. Therefore, this issue lacks merit.

5. Prosecutorial Misconduct

¶ 30. Elliott contends that the prosecutor committed misconduct by indicting Elliott for receiving stolen property when Elliott had actually stolen the property in question. Elliott contends that “[a]ny testimony about stolen cars was simply a way to introduce other bad acts to show that [Elliott] had stolen one car, so he must have been trying to steal another.” We will reverse a criminal case for misconduct only when “prosecutorial misconduct endangers the fairness of a trial and the impartial administration of justice .... ” Goodin v. State, 787 So.2d 639, 645 (¶ 18) (Miss.2001) (citing Acevedo v. State, 467 So.2d 220, 226 (Miss.1985)).

¶ 31. Again, Elliott’s argument here is premised on the erroneous notion that his indictment for receipt of stolen property is improper. As we have found that his prosecution for receipt in Mississippi of property that was stolen in Louisiana was proper, it necessarily follows that the prosecutor did not commit any misconduct. The fact that we are reversing and rendering' Elliott’s conviction for conspiring to receive stolen property does not prove that the prosecutor acted improperly in charging Elliott with receipt of stolen property. The two charges are separate and distinct. We also note that Elliott does not complain about the conspiracy charge in his discussion of this issue. There is no indication that the prosecutor acted in bad faith in indicting Elliott; therefore, we cannot find that the prosecutor’s conduct endangered the fairness of Elliott’s trial. This contention of error is without merit.

6. Cumulative Error

¶ 32. In his final contention of error, Elliott challenges his convictions on the ground of cumulative error. However, his brief provides no argument or authority regarding cumulative error and instead discusses plain error and the validity of Elliott’s convictions for receiving stolen property and for conspiring to steal the Jeep. Although Elliott provides no argument regarding cumulative error, we find it sufficient to say that with respect to the three convictions that we are affirming, there is no error, and the fourth conviction is being reversed and rendered due solely to the circuit court’s lack of jurisdiction over the charge. Therefore, this contention of error is also without merit.

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF COUNT I, ARMED ROBBERY; COUNT II, CONSPIRACY TO COMMIT THE CRIME OF ARMED ROBBERY; AND COUNT III, POSSESSION OF STOLEN PROPERTY, AND SENTENCE OF TWENTY-FIVE YEARS ON COUNT I AND FIVE YEARS ON EACH OF COUNTS II AND III, WITH THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I AND THE SENTENCE IN COUNT III TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT II, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE DEFENDANT TO SERVE THE TWENTY-FIVE YEARS ON COUNT I AND THE SENTENCES ON COUNTS II AND III TO BE SUSPENDED, WITH FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF COUNT IV, CONSPIRACY TO COMMIT THE CRIME OF POSSESSION OF STOLEN PROPERTY, IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

LEE, C.J., ISHEE AND ROBERTS, JJ„ CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. GRIFFIS, P.J., MYERS AND MAXWELL, JJ., NOT PARTICIPATING.

CARLTON, J.,

Concurring in Part and Dissenting in Part:

¶ 34. I respectfully concur in part and dissent in part with the majority’s opinion. I would affirm the judgment of the trial court.

      . Although the judgment of the circuit court refers to the crime named in Mississippi Code Annotated 97-17-70 (Supp.2010), the statute under which Elliott was indicted, as possession of stolen property, the proper name is receiving stolen property. Unless the context requires otherwise, we will refer to the crime as "receipt” or "receiving” stolen property, except in the mandate where we track the wording in the judgment of the circuit court.

      . The armed robbery occurred in Mississippi; die conspiracy to possess stolen property occurred in Louisiana, and the possession of the stolen property relates to a black Jeep, which was stolen in Louisiana by Elliott and the others and driven to Mississippi.