author: GENOVESE, Judge.

text:
    STATE of Louisiana in the Interest of C.L.H., T.L.E., & T.A.H.
    No. 11-189.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.

      Nick Pizzolatto, Jr., Louisiana Department of Children and Family Services, Lake Charles, LA, for Appellant, Louisiana Department of Children and Family Services.
    Charlotte Ieyoub, Assistant District Attorney, Charles, LA, for Appellant, State of Louisiana.
    Mike K. Stratton, 14th Judicial District Public Defender’s Office, Lake Charles, LA, for Defendant/Appellee, L.A.H.
    Ronald A. Rossitto, Lake Charles, LA, for Minors, C.L.H., T.L.E., and T.A.H.
    Edward Kelly Bauman, Lake Charles, LA, for Defendant, W.E.
    Douglas K. Hall, Lake Charles, LA, for Defendant, A.E., Jr.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

The State of Louisiana, through its Department of Social Services, Office of Community Services, renamed Department of Children and Family Services (State), appeals the judgment of the trial court dismissing its petition to terminate the biological mother’s parental rights. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On July 15, 2010, the State filed a Petition for Certification for Adoption and Termination of Parental Rights of L.A.H., the biological mother of C.L.H. (date of birth April 21, 2003), T.L.E. (date of birth December 13, 2005), and T.A.H. (date of birth May 20, 2008). The State asserted that two of the children, C.L.H. and T.L.E., were taken into the State’s custody on January 26, 2009, and that T.A.H. was taken into the State’s custody on February 1, 2009, after L.A.H. was “arrested for various drug[-]related criminal charges when [her] house was raided by the Sul-phur Police Department.” According to the State’s petition, the three children were returned to L.A.H. on a trial basis on October 5, 2009; however, on October 23, 2009, the temporary placement ceased, and the children were again placed into foster care. The State sought to have L.A.H.’s parental rights terminated pursuant La. Ch.Code art. 1015(4), La.Ch.Code art. 1015(5), and La.Ch.Code art. 1036.

In its petition, the State asserted that L.A.H. had not substantially complied with her case plan. Specifically, the State alleged that L.A.H.: (1) had “not obtained safe, stable housing[;]” (2) had “not provided any proof of legal income[;]” (3) had not satisfactorily completed outpatient treatment with the Office of Addictive Disorders; (4) had failed a random drug screen in December of 2009 and was arrested for possession and distribution of marijuana in February of 2010; (5) had attended the 12incorrect parenting course and had yet to attend the parenting course the State deemed acceptable; (6) had attended a course for domestic abuse victims but needed to attend another course since the State alleged that L.A.H. had “returned to being around drug users and dealers[;]” and (7) had “failed to make any monthly contributions toward the care of her children.” The State did concede, however, that L.A.H. was in compliance with her case plan’s requirement that she regularly visit her three children.

On October 21, 2010, a termination hearing was held. Following said hearing, the trial court dismissed the State’s petition against L.A.H., finding that she had substantially complied with her case plan. The State appeals.

ASSIGNMENTS OF ERROR

On appeal, the State asserts:

The trial court committed manifest error by finding that the mother was in substantial compliance with her case plan, that there was reasonable expectation of significant improvement in the mother’s condition, by failing to find that the State had proven that the mother’s parental rights should be terminated based upon Children’s Code Article 1015(4) and (5) and Article 1036, and failing to find that it was in the best interest of the children that the mother’s parental rights be terminated.
Additionally, the trial court committed manifest error by applying the incorrect burden of proof and requiring the mother be convicted of criminal charges before he would hold the two (2) drug busts against her.

LAW AND DISCUSSION

Louisiana Children’s Code Article 1035 requires that the State establish “each element of a ground for termination of parental rights by clear and convincing evidence.” This court, in State in the Interest of M.R. v. S.F.H., 09-889, pp. 2-3 (La.App. 3 Cir. 12/9/09), 25 So.3d 1021, 1022-23, writ denied, 09-2812 (La.1/14/10), 24 So.3d 878, set forth both the burden of proof which the State must meet and the standard of appellate review in parental termination matters as follows:

The termination of parental rights is a two-pronged inquiry. First, the State must prove by clear and convincing evidence the existence of, at least, one ground for termination under La.Ch. Code art. 1015. La.Ch.Code art. 1035(A); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Only after the ground for termination is found, the trial court must determine whether the termination is within the best interest of the child. La.Ch.Code art. 1039. On review of a termination of parental rights, an appellate court cannot set aside a trial court’s finding of fact in the absence of manifest error or unless the findings are clearly wrong. State in the Interest of KG. & T.G., 02-2886, 02-2892 (La.3/18/03), 841 So.2d 759.

Thus, the State must first establish by clear and convincing evidence one of the statutory grounds for involuntary termination of a parent’s rights, and then the State must establish by clear and convincing evidence that termination of parental rights is in the child’s best interest. Id.

In the present case, the State’s Petition for Certification for Adoption and Termination of Parental Rights alleged that termination of L.A.H.’s parental rights was appropriate pursuant to La.Ch.Code art. 1015(4), La.Ch.Code art. 1015(5), and La. Ch.Code art. 1036. The relevant subsections of La.Ch.Code art. 1015 include the | ¿following grounds for termination:

(4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with |sa case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

The trial court found that the State had not established by clear and convincing evidence the grounds for terminating L.A.H.’s parental rights. We hold that the trial court did not clearly err in finding that the State failed to prove either ground by clear and convincing evidence.

At the October 21, 2010 trial, the State first called L.A.H. to testify. When questioned about whether she had complied with her case plan’s requirement that she obtain employment, L.A.H. testified that to comply with her case plan, she worked at her brother-in-law’s construction company until October of 2009. According to L.A.H., she stopped working during the time that her children were returned to her because she did not have a babysitter. After her children were again placed into foster care, L.A.H. went back to work for her brother-in-law’s construction company until February of 2010. She claims that her employment there ended when her sister and brother-in-law separated. Thereafter, L.A.H. worked as a convenience store clerk, then as a dancer at a gentleman’s club in Leesville. On the date of trial, she was employed as a waitress at a gentleman’s club in Lake Charles. According to L.A.H., she provided the required documentation of her employment in the form of letters from her employers or copies of her check stubs to each of her foster care managers.

When questioned about her living situation, L.A.H. testified that after her children were taken into the State’s custody, she briefly went to live with her sister. She then moved next door to her sister for a short time. In November of 2009, L.A.H. | amoved to another residence in Sulphur. In March of 2010, L.A.H. moved to Leesville. In May of 2010, she moved back to Lake Charles and lived at this residence until September of 2010 when she moved in with her cousin in Sulphur. On the date of trial, L.A.H. was still living with her cousin, but only until the home next door was ready for her to move into. L.A.H. testified that the water and electricity were scheduled to be connected the next day.

When questioned about whether she had complied with her case plan’s requirement that she pay $100.00 per month for her contribution towards the children’s care, L.A.H. did not deny that she had failed to comply every month. Although she could not recall exactly how many times she had made payments, L.A.H. testified that she also bought items for the children to give to them during their visits. According to L.A.H., she attended all but one of her scheduled visits with her children. Finally, L.A.H. denied having contact with D.C. after it became a requirement that she not have contact with him.

When questioned about her required attendance of a parenting course, L.A.H. testified that she had attended a parenting course entitled “Common Sense Parenting.” When the State questioned L.A.H. as to why she had not attended the parenting course entitled “Nurturing Parenting” which was the course specified by the State in her case plan, L.A.H. responded that she believed the course she attended was in compliance with her case plan, and she was never told differently.

Only one witness was called by the State to counter the testimony of L.A.H. 17Jamie Comeaux, the foster care manager, testified that she was assigned to this case in February of 2010. Ms. Comeaux was the third foster care manager to handle this case since C.L.H., T.L.E., and T.A.H. entered the State’s custody. Ms. Comeaux testified that L.A.H. was not in compliance with her case plan because she did not pay $100.00 per month for her contribution towards the children’s care, she had not satisfactorily completed a substance abuse program, she had not attended the required parenting class, and she had not refrained from having contact with D.C.

In its oral reasons for judgment, the trial court found that although it was shown that L.A.H. did not pay $100.00 per month, “she did provide some other material needs for the [children,]” such as purchasing shoes, clothing, and school supplies. On the issue of L.A.H.’s alleged failure to obtain suitable and stable housing, the trial court questioned Ms. Co-meaux as to whether L.A.H. was ever offered assistance in obtaining suitable housing. Ms. Comeaux’s response was simply that L.A.H. had never told her she needed assistance in that regard.

It is evident from our thorough review of the record that the trial court did not find the testimony elicited from Ms. Co-meaux to be “clear and convincing.” While the testimony at trial established that L.A.H. has not yet reached her goal of completing the requirements of her case plan, the testimony at trial did not establish that L.A.H. had failed to substantially comply with the requirements of her case plan.

Finally, the State asserts that “the trial court committed manifest error by applying the incorrect burden of proof and requiring [L.A.H.] be convicted of criminal charges before [it] would hold the two (2) drug busts against her.” Essentially, the State would have the trial court treat an arrest as though it were the |ssame as a conviction — this is simply not the case. The trial court was cognizant of the fact that L.A.H. was arrested twice following two separate drug raids. The first arrest was the drug raid which precipitated the three children’s placement into the State’s custody; however, the charges in that instance against L.A.H. were dismissed. The second occurred in February of 2010, and the charges against L.A.H. were pending as of the date of trial of this matter. In its oral reasons for judgment, the trial court declared, “She has not been convicted of any criminal conduct.” We agree. The conviction of a parent may be introduced to prove parental misconduct pursuant to La.Ch.Code art. 1036; however, the record before us does not contain evidence that L.A.H. was convicted of any criminal charges. This argument is without merit.

Based on the record before us, we conclude the trial court did not manifestly err in finding that the State failed to meet its heavy burden of presenting clear and convincing proof of one of the statutory grounds for the involuntary termination of L.A.H.’s parental rights and that termination of L.A.H.’s parental rights is in the best interest of C.L.H., T.L.E., and T.A.H.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court dismissing the State’s Petition for Certification for Adoption and Termination of Parental Rights of L.A.H.

AFFIRMED.

      . Pursuant to Uniform Rules — Courts of Appeal, Rules 5-1 and 5-2, the initials of the parties are used to protect and maintain the privacy of the minors involved in this proceeding.

      . Though the parental rights of W.E., the biological father of C.L.H. and T.L.E., and A.E., Jr., the biological father of T.A.H., were terminated, W.E. and A.E., Jr., have not appealed the judgment, and their respective rights are not at issue herein.

      . Louisiana Children's Code Article 1036 governs proof of parental misconduct and states that a lack of parental compliance with the family case plan and the lack of any reasonable expectation of significant improvement in the near future may be evidenced in the following manner:
      A. The admissibility of the conviction of a parent is governed by the Code of Evidence.
      B. A prior conviction may be proved by certified copy of the judgment of conviction or certified copy of the minute entry of conviction.
      C. Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
      (1) The parent’s failure to attend court-approved scheduled visitations with the child.
      (2) The parent’s failure to communicate with the child.
      (3) The parent's failure to keep the department apprised of the parent's whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
      (4) The parent's failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
      (5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
      (6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
      (7) The persistence of conditions that led to removal or similar potentially harmful conditions.
      D.Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:
      (1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
      (2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
      (3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

      .D.C. was L.A.H.’s boyfriend when the drug raid which precipitated the three children's placement into the State’s custody occurred. Pursuant to L.A.H.’s pre-trial diversion plan for the charges stemming from this drag raid, L.A.H. was not to have contact with D.C.

      . In addition, and even though it was not a part of her case plan, L.A.H. testified that she attended mental health counseling.

      . Ms. Comeaux testified that L.A.H.'s case plan required that she attend "Nurturing Parenting,” not "Common Sense Parenting.”


source: Caselaw Access Project

author: DICKINSON, Presiding Justice,

license: Public Domain

text:
    Vanessa DECKER a/k/a Vanessa Francis Decker a/k/a Vanessa Frances Decker a/k/a Fran v. STATE of Mississippi.
    No. 2008-CT-01621-SCT.
    Supreme Court of Mississippi.
    Aug. 4, 2011.

      Jim Waide, Tupelo, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice,

for the Court:

¶ 1. The grand jury indicted Vanessa Decker under the Mississippi Vulnerable Adults Act of 1986, for using her mother’s money “without her consent.” But at trial, the evidence established that she had obtained her mother’s consent to use the money, so the State requested — and the trial judge granted — a jury instruction that allowed the jury to find Decker guilty, even if her mother had given her permission to use the money. Decker was convicted by the Clay County Circuit Court and sentenced to serve a term of four years in the custody of the Mississippi Department of Corrections. She also was sentenced to pay restitution in the amount of $4,120 and a fine in the amount of $250 and all court costs. This discrepancy between the indictment and the jury instructions was material, so we reverse.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. During the almost two years Nannie Mae Morris — who had short-term memory loss and could not provide for her own needs — lived with her daughter, Decker, Morris allowed Decker to write checks on Morris’s checking account “for whatever she needed.” Decker had an agreement with the bank that she could cash Morris’s checks — consisting of Social Security disability payments — and draw on Morris’s checking account. Decker wrote checks totaling $10,255.02.

¶ 3. The grand jury indicted Decker on four counts of exploitation of a vulnerable adult. The State voluntarily dismissed the first count, and the jury found Decker not guilty on two of the three remaining counts, but guilty on the fourth count, which charged her with writing checks totaling $4,120 during a four-month period of time when Morris was living with Decker’s sister, and Decker was in Texas caring for her son, who had severely injured himself in a suicide attempt.

¶ 4. Decker appealed her conviction, raising both the the discrepancy between the indictment and the jury instructions and the constitutionality of the statute under which she was convicted. On appeal, her case was assigned to the Court of Appeals, which affirmed her conviction. We granted certiorari to review the decisions of the trial court and the Court of Appeals. Because the first issue is dispos-itive, we decline to address the second.

ANALYSIS

I.

¶ 5. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation.” The Mississippi Constitution also grants the accused in criminal prosecutions the right “to demand the nature and cause of the accusation.” An indictment’s primary purpose is “to provide the defendant with a concise statement of the crime so that he may have a reasonable opportunity to prepare and present a defense to those charges.”

¶ 6. This right to notice through an indictment requires more than a bare assertion of the name of the crime; that is to say, an indictment for shoplifting, for instance, must say more than “the accused committed the crime of shoplifting.” The accused must also be reasonably informed of the material facts, details, and conduct the grand jury believes constituted the crime. And once the grand jury hands down a true bill that alleges an accused committed a particular crime by engaging in certain conduct — absent waiver or a request for a lesser included offense — the accused must be prosecuted for that crime, and no other.

¶ 7. Count IV of the indictment charged that Decker willfully, feloniously, unlawfully, and knowingly had exploited Morris by writing checks or withdrawing cash from Morris’s checking account to herself and her husband while Morris was not actively in Decker’s care, without the consent of Morris, in violation of Mississippi Code Section 43-47-19(1), (2)(b).

¶ 8. The indictment charged exploitation, a term that, according to the statute, requires “illegal or improper use” of the money. So the grand jury was required to believe that Decker had used the money for an improper purpose. In describing the improper use of the money, the grand jury charged that Decker had used the money without her mother’s consent.

¶ 9. There is no indication that the grand jury believed Decker’s use of her mother’s money with her mother’s consent was an improper use. In fact, the wording of the indictment suggests that the grand jury believed Decker’s use of the money was improper only if the money was used without Morris’s consent. This Court has held that “[i]f the grand jury did not know what crime they were charging against the defendant, how could the defendant know the nature of the crime with which he is charged?”

¶ 10. At trial, the State produced no evidence that Decker had used her mother’s money without her consent. And several witnesses testified that Decker, in fact, had obtained her mother’s consent. So the State submitted a jury instruction that instructed the jury that it could find Decker guilty “[rjegardless of whether it was done with, or without [her] consent.” The trial judge gave the instruction over Decker’s objection.

¶ 11. The State points out that — because the indictment cited the applicable statute, which clearly provides that one can exploit a vulnerable person with or without the victim’s consent — Decker was on notice of what she had to defend. Stated another way, the State says absence of consent is not an element of the crime it had to prove. And at oral argument, the State informed us of its view that any expenditure of a vulnerable adult’s money that benefits the spender is an improper use.

¶ 12. Decker argues that the wording of the indictment led her to believe that having her mother’s permission — which the evidence produced at trial indicates she had — was a complete defense to the charges. She further argues that she relied on the indictment’s wording in preparing to defend the charge at trial; and she points out that she did not learn until the trial that the jury would be instructed that she could be found guilty, even if she had permission to use her mother’s money.

¶ 13. Also, as stated above, the statute’s “improper purpose” language unquestionably is an essential element of the crime. Decker argues that the grand jury may very well have found her use of her mother’s money to be an “improper use” only if expenditures were made without her permission. The indictment’s limiting language supports this argument, as no other explanation is offered as to why the limiting language was included in the indictment.

¶ 14. We do not today hold any discrepancy between the language of an indictment and the proof at trial or the jury instructions requires reversal. It is only where, as here, the discrepancy is material and prejudices an accused’s ability to defend; or where the jury instructions deviate in a material and substantive way from the conduct considered by the grand jury to constitute the crime, that reversal is required.

¶ 15. Although Decker’s indictment sufficiently informed her of the crime and the conduct the grand jury believed constituted the crime, the trial judge erroneously issued a jury instruction that materially conflicted with the indictment’s language. And because the error was not cleared up in other instructions, the jury instructions, when taken as a whole, created injustice by expanding, beyond the charges in the indictment, the bases on which Decker could be convicted.

¶ 16. The State argues that Count IV of the indictment included a citation to the statute Decker is charged with violating, and the statute explicitly states “with or without consent.” But, in light of the indictment’s limiting language, the citation is insufficient to put Decker on notice of the charge she would be required to defend against at trial.

¶ 17. The State does not contest that Decker had permission to use her mother’s money. Indeed, the State sought the jury instruction that expanded the charge against Decker precisely because the evidence at trial clearly established that she did have permission. We therefore decline to remand this case for a new trial.

II.

¶ 18. Decker also claims that the portion of the Act under which she was prosecuted is unconstitutionally vague. The statute under which Decker was indicted states that “[i]t shall be unlawful for any person to ... exploit any vulnerable adult.” The wording of the statute begs two questions: Who is a vulnerable adult, and what does it mean to exploit? Both questions are answered by statutory definitions. The term “vulnerable adult” means

a person ... whose ability to perform the normal activities of daily living or to provide for his or her own care or protection ... is impaired due to a mental, emotional, physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.

¶ 19. It is important to note here that mental impairment is not required for one to qualify under this statute as a “vulnerable adult.” Indeed, the statute’s broad definition of a vulnerable adult includes a person with completely normal mental capacity, but whose ability to perform the normal activities of daily living is impaired because of a physical limitation, such as blindness or the inability to walk. Decker argues that the statute robs such persons of their right to decide what they wish to do with their own money by imposing someone else’s view of what is an “improper use.”

¶20. The statute’s term “exploitation” is defined as “the illegal or improper use of a vulnerable person or his resources for another’s profit or advantage, with or without the consent of the vulnerable adult....” The term “improper purpose” — which is not defined within the statutes — forms the basis for Decker’s argument that the statute is unconstitutionally vague.

¶ 21. This case was prosecuted by — and the appeal has been presented by — the Attorney General’s office. At oral argument, the assistant attorney general argued that any use of a vulnerable person’s money for personal benefit would be an improper use, even with the vulnerable person’s consent. So we must accept that interpretation as to how citizens are to be prosecuted under the statute.

¶ 22. Under Section 43-47-19 — as applied by the Attorney General, and as its terms are defined in Section 43-47-5 — a vulnerable adult cannot give a spouse permission to withdraw money from a checking account to buy herself a birthday present; or give one of her children or grandchildren permission to withdraw money to pay college tuition. According to the argument presented by the Attorney General’s office, both these actions would constitute crimes.

¶ 23. We are troubled by the statute’s broad reach. But because we have decided this case based on the conflict between the language of the indictment and the jury instruction, we decline to address today the constitutionality of the statute.

CONCLUSION

¶ 24. The trial judge gave a jury instruction that materially changed the charge made by the grand jury in the indictment. Accordingly, we must reverse and render the judgments of the Circuit Court of Clay County and the Court of Appeals.

¶ 25. REVERSED AND RENDERED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS AND PIERCE, JJ., CONCUR. CHANDLER AND KING, JJ., NOT PARTICIPATING.

      . Miss.Code Ann. §§ 43-47-1 to 43-47-39 (Rev.2009). In 2010, the Legislature changed the name of the act to the Mississippi Vulnerable Persons Act of 1986. See Miss Code Ann. §§ 43-47-1 to 43-47-39 (Supp.2010).

      . U.S. Const. amend. VI.

      . Miss. Const. art. 3 § 26.

      . Burrows v. State, 961 So.2d 701, 705 (Miss.2007).

      . See e.g. Wolfe v. State, 743 So.2d 380, 384 (Miss.1999) ("Courts may not amend an indictment as to a substantive matter without the agreement of the grand jury which issued the indictment, unless the indictment only regards mere formalities.”); Williams v. State, 445 So.2d 798, 806 (Miss.1984) (Jury instructions may not materially vary from an indictment).

      . Miss.Code Ann. § 43-47-5(i) (Rev.2009).

      . Quang Thanh Tran v. State, 962 So.2d 1237, 1246 (Miss.2007) (quoting Brumfield v. State, 206 Miss. 506, 40 So.2d 268 (1949)).

      . Emphasis added.

      . Miss.Code Ann. § 43-47-19(1) (Rev.2009) (emphasis added).

      . Miss.Code. Ann. § 43-47-5(n) (Rev.2009).


author: LEE, P.J.,

text:
    Vanessa DECKER a/k/a Vanessa Francis Decker a/k/a Vanessa Frances Decker a/k/a Fran, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01621-COA.
    Court of Appeals of Mississippi.
    Aug. 31, 2010.
    Rehearing Denied Dec. 14, 2010.
    Jim Waide, Tupelo, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE and MYERS, P.JJ., and ROBERTS, J.
   LEE, P.J.,

for the Court:

PROCEDURAL. HISTORY

¶ 1. Vanessa Francis Decker was indicted on four counts of exploitation of a vulnerable adult. Each count reflected a different time period between November 9, 2005, and April 5, 2007. Decker was found guilty in the Circuit Court of Clay County of Count IV, which stated that she used $4,120 of her mother’s money without her mother’s consent at a time when her mother was a vulnerable adult. Count I was voluntarily dismissed, and she was found not guilty of Counts II and III. Decker was ordered to serve a four-year suspended sentence and to pay a fine of $250 plus court costs and restitution in the amount of $4,120. Decker’s sentence is to remain suspended unless she violates the terms of her probation or fails to pay her fíne, restitution, or costs. Aggrieved with her conviction and sentence, Decker filed a motion for a directed verdict or, in the alternative, a new trial, which was denied by the trial court.

¶ 2. Decker now appeals, arguing: (1) she was denied sufficient notice to prepare a defense, and (2) the statute defining exploitation of a vulnerable adult is vague, indefinite, and uncertain. Finding no error, we affirm the judgment of the trial court.

FACTS

¶ 3. Once Decker’s mother, Nannie Mae Morris, was no longer able to live on her own, she came to live with Decker. Morris lived with Decker until Decker’s son suffered an injury,' and Decker had to leave the home to take care of him. It was during the time period when Decker was taking care of her son that she was found to have exploited her mother by writing checks out of her mother’s checking account. Decker had power of attorney over her mother and had access to her mother’s checking account so she could cash her mother’s social-security checks and draw on her account.

¶ 4. Decker presented the testimonies of several family members that supported her position that Morris consented to Decker’s use of her money. Decker’s sister, Shirley Doss, testified that she did not know how Decker had spent their mother’s money, but “she was told by [Morris] that [Decker] could use it for whatever she needed, you know, for the house or whatever.” Doss testified that Decker and Morris “had a very close relationship.” Doss testified that Morris had told her “many times for years that she wanted her baby [Decker] to take care of her when she got to where she couldn’t take care of herself. And she wanted her to have her money for whatever she needed.” Another of Decker’s sisters, Marilyn Janice Henley, testified that it was their mother’s wish for Decker to care for her when she got older. Henley testified that she heard Morris tell Decker on the phone that “if you need a check for anything, you write it.” Decker’s son testified that he and his stepfather built a twelve foot by fourteen foot room with a bathroom onto Decker’s house for her mother. Decker’s son testified that his stepfather paid for the room with a credit card and did not ask Morris to pay for any of the expenses associated with building the room.

DISCUSSION

I. INDICTMENT

¶ 5. Decker argues that she was denied the constitutional right to know the specific charge against her because the jury instructions did not follow the language of the charge in the indictment. Specifically, the indictment charges that Decker obtained $4,120 of her mother’s money “without” her mother’s consent. The jury instruction, however, states that Decker should be found guilty if she exploited her mother by using her resources “with or without” her mother’s consent.

¶ 6. Count IV of the indictment states:

[Decker,] on and between December 5, 2006, and April 5, 2007, several acts and/or transactions therein being connected and/or constituting parts of a common scheme or plan, within the jurisdiction of this Court and legal boundaries of Clay County, Mississippi, did willfully, feloniously, unlawfully, and knowingly exploit Nannie Mae Morris, a vulnerable adult as defined by § 43^17-[5](n) of the Mississippi Code of 1972, as amended, to wit: by engaging in a continuous plan by which Vanessa Francis Decker wrote checks drawn on the Ban-corpSouth checking account of Nannie Mae Morris ... to herself and her husband, Billy E. Decker, or withdrew cash from said account of Nannie Mae Morris while she was not actively in the care of Vanessa Francis Decker, thereby depriving Nannie Mae Morris of over $250.00 of her funds and/or resources with knowledge of Nannie Mae Morris’s inability to perform normal activities of daily living or provide for her own care or protection due to mental, emotional, or physical impairment, disability or dysfunction, or due to the infirmities of aging, without the consent of Nannie Mae Morris, thereafter using the currency obtained $4,120.00, for her own profit or advantage, contrary to and in violation of § 43-47-19(1) & (2)(b) of the Mississippi Code of 1972....

¶ 7. Jury instruction S-3 states that in order to find Decker guilty of exploitation of a vulnerable adult, the jury must find the following beyond a reasonable doubt:

1. Vanessa Decker, on and between the 5th day of December, 2006 and the 5th day of April, 2007 in Clay County;
2. Did willfully and without lawful authority;
3. Exploit Nannie Morris, a vulnerable adult;
4. By illegally or improperly;
5. Using Nannie Morris, or her resources, in the amount of $4,120.00;
6. For her own profit or advantage;
7. Regardless of whether it was done with, or without, the consent of Nannie Morris[.]
If you find that the State has proven all of the above elements beyond a reasonable doubt, then you shall find the defendant, Vanessa Decker, guilty as charged in Count IV of the Indictment.
If the State has failed to prove any of the above elements beyond a reasonable doubt, then you shall find the defendant not guilty as charged in Count IV of the Indictment.

¶ 8. Decker’s counsel objected to element seven of the jury instruction, arguing that it did not follow the indictment. Decker’s counsel proposed a jury instruction that stated that if “Decker’s use of the money was with the consent of Nannie Mae Morris, then Decker must be found not guilty.” The jury instruction was refused. Decker moved for a directed verdict on this issue. In ruling on the motion, the trial judge stated that “the statute would control even though the indictment alleges otherwise.” The trial court found that since it is irrelevant whether the exploitation occurred with or without consent, the language in the indictment was “mere surplusage,” and the court allowed the indictment to be amended accordingly.

¶ 9. Decker is correct that the jury instruction failed to follow the language of the indictment. However, the jury instruction follows the definition of exploitation set out in Mississippi Code Annotated section 43-47-5(i) (Rev.2009). Section 43-47-5® states that exploitation is “the illegal or improper use of a vulnerable adult or his resources for another’s profit or advantage, with or without the consent of the vulnerable adult, and includes acts committed pursuant to a power of attorney. ‘Exploitation’ includes, but is not limited to, a single incident.” (Emphasis added).

¶ 10. The testimony implied, but did not directly state, that Decker’s use of the money was for her son’s benefit with her mother’s consent. Regardless, the statute makes clear that any improper use of a vulnerable adult’s resources for another’s advantage is exploitation. The State is correct in its assertion that consent is a non-issue because the State did not have to prove anything with regard to consent.

¶ 11. We find that Decker was put on notice by the terms of the statute that the charge of exploitation could be proven regardless of whether or not Decker’s mother consented to the use of the money. Therefore, we find this issue is without merit.

II. SECTION 43^7-5®

¶ 12. Decker argues that Mississippi Code Annotated section 43 — 47—5(i) is unconstitutionally vague because there is no explanation of the terms “illegal or improper.” Decker asserts that the statute makes it impossible to determine whether a financial transaction is criminal.

¶ 13. The statute in question reads as follows: “‘Exploitation’ means the illegal or improper use of a vulnerable adult or his resources for another’s profit or advantage, with or without the consent of the vulnerable adult, and includes acts committed pursuant to a power of attorney. ‘Exploitation’ includes, but is not limited to, a single incident.” Miss.Code Ann. § 43-47 — 5(i).

¶ 14. The supreme court in Boatner v. State, 754 So.2d 1184, 1190 (¶ 17) (Miss.2000) found that this very statute was not unconstitutionally vague. In Boatner, Bonnette Boatner argued “that the statute gives no guidance as to the meaning of ‘abuse!,]’ ‘neglect[,]’ or ‘exploitation’ and that, therefore, the ‘criminal act is left up to a jury, or in this case, a judge to define.’ ” Id. at 1188 (¶ 8). The supreme court found: “Clearly, subsections (a),(i), and (k) of section 43-47-5 ... not only offer guidance, but lay out plain definitions of the terms ‘abuse[,]’ ‘neglect[,]’ and ‘exploitation!,]’ so that the judge in this case had no need to, nor did he, provide his own definitions.” Id.

¶ 15. “[T]he test concerning statutory construction is whether a person of ordinary intelligence would, by reading the statute, receive fair notice of that which is required or forbidden.” Id. at 1189 (¶ 14) (citing State v. Burnham, 546 So.2d 690, 692 (Miss.1989)). Decker was found to have used her mother’s money for the advantage of someone other than her mother during a time period in which she was not caring for her mother. It was not disputed that Decker’s mother was a vulnerable adult. Under the statute, Decker’s actions constituted exploitation. We cannot find that the statute is unconstitutionally vague. This issue is without merit.

¶ 16. THE JUDGMENT OF THE CLAY COUNTY CIRCUIT COURT OF CONVICTION OF FELONY EXPLOITATION OF A VULNERABLE ADULT AND SENTENCE OF FOUR YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FOUR YEARS SUSPENDED, AND TO PAY $4,120 IN RESTITUTION AND A $250 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: ISHEE, J.,

text:
    Craig Lashoun McBEATH, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KP-00754-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.
    Rehearing Denied April 19, 2011.
    Certiorari Denied Aug. 4, 2011.

      Craig Lashoun McBeath, appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appel-lee.
    Before LEE, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Craig Lashoun McBeath was indicted for the murder of Shannon Lee Tor-rence (Shannon), while engaged in the commission of a robbery, and for the kidnapping of Shannon. McBeath, along with Isaac Nelson, was tried in the Scott County Circuit Court for the capital murder and kidnapping of Shannon. The jury convicted McBeath of simple- murder, a lesser offense, and kidnapping.- McBeath was sentenced to life for the murder and to forty years for the kidnapping, with the sentences to run consecutively, all in the custody of the Mississippi Department of Corrections. Finding error with the kidnapping sentence, we affirm in part and remand in part.

FACTS

¶ 2. On February 23, 2007, Shannon was declared missing. Three days later, Chief Deputy Roger Thomspon and deputies Gerald Greer and Billy Patrick recovered Shannon’s body in a wooded area in the Midway community in Scott County. His body was unclothed and a plastic bag was taped around his head. On October 25, 2007, Craig Lashoun McBeath, was indicted by a Scott County grand jury on the counts of capital murder and kidnapping.

¶ 3. Shannon’s mother, Mary Carpenter, testified that on the day her son went missing, he was a seventeen-year-old senior at Scott Central High School who was living at home with her and her husband. She testified that she left for work that morning at 6:15 a.m. and that she saw Shannon asleep in bed. He called her when she arrived at work and told her that he was up and getting dressed for school. That afternoon, however, Shannon failed to call her, contrary to his usual routine. Mary called several of Shannon’s friends as well as his school to check on him, but nobody had seen Shannon. Sensing something was wrong, at approximately 2:00 p.m., she returned home.

¶4. When Mary arrived at home, she found several indications that something had gone very wrong. Mary contacted the Scott County Sheriffs Department and informed them of the situation. Three days later, on Monday, February 26, 2007, Shannon’s body was found in a wooded area by Chief Deputy Roger Thompson and Deputy Gerald Greer. The body was “[n]ude, had a plastic bag over the head.”

¶ 5. Deputy Greer testified that, between the time Shannon went missing and the discovery of the body, he talked with several people who knew the victim. The day before the body was found, Deputy Greer and Deputy Steven Crotwell interviewed McBeath for the first time. McBeath was read his Miranda rights; he executed a waiver of his rights; and he told the deputies that he had been with Shannon on the day Shannon had disappeared, but he claimed he had no idea of his whereabouts.

¶ 6. The day after Shannon’s body was found, Deputy Crotwell brought McBeath over from the jail. Deputy Crotwell testified that McBeath threw his hands in the air and stated, “I’m gonna[sic] tell y’all everything, I just want my mother here.” Deputy Crotwell left the interview and went to retrieve McBeath’s mother. Deputy Greer and Agent Danny Knight of the Mississippi Bureau of Investigation interviewed McBeath for the second time. Again, McBeath was informed of his rights and executed a waiver.

¶ 7. This interview was recorded and played for the jury. On the recording, McBeath confessed to putting Shannon in a headlock and choking him. McBeath also confessed that he told Nelson (McBeath’s co-defendant) to find a plastic garbage bag and some duct-tape and for Nelson to help McBeath place the bag around Shannon’s face and head.

¶ 8. Shortly thereafter, Deputy Greer was informed that Shannon’s car had been found in a parking lot at East Central Community College in Decatur, Mississippi. Deputy Greer left the McBeath interview and went to the location of the vehicle where he found and secured it. Deputy Greer then had the car towed to a garage in Morton, Mississippi, and he remained with the vehicle until Mississippi Crime Laboratory personnel arrived.

¶ 9. Dr. Steven Timothy Hayne performed the autopsy on Shannon’s body. Dr. Hayne testified that the body exhibited signs of early decomposition and there was a black plastic bag duct-taped around Shannon’s head, covering his nose and mouth. Additionally, Dr. Hayne testified that Shannon had sustained linear scrapes on his back, which signified a dragging or sliding movement.

¶ 10. Dr. Hayne concluded that Shannon died of incomplete strangulation with terminal suffocation, and “there was intent to ... induce manual strangulation with compression of the neck and that was followed by taping this individual’s nares and mouth shut[,] which would produce suffocation.” In Dr. Hayne’s opinion, the linear marks on the left side of the back indicated Shannon was alive when they were inflicted. Finally, Dr. Hayne ruled the manner of death as homicide.

DISCUSSION

I. Ineffective Assistance of Counsel

¶ 11. McBeath first contends that his attorney rendered constitutionally ineffective assistance of counsel. To prevail on a claim of ineffectiveness of counsel, “[a] defendant must demonstrate that his counsel’s performance was [1] deficient and [2] that the deficiency prejudiced the defense of the case.” Burnside v. State, 882 So.2d 212, 216 (¶ 20) (Miss.2004) (citing Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001)). “Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable. The focus of the inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Id. (internal citations omitted). Furthermore, “[a] strong but rebuttable presumption, that counsel’s performance falls within the wide range of reasonable professional assistance, exists.” Colenburg v. State, 735 So.2d 1099, 1102-03 (¶ 9) (Miss.Ct.App.1999).

¶ 12. McBeath’s challenge rests upon an allegation that his trial counsel failed to perform an adequate pretrial investigation. He claims there were witnesses available to his trial counsel for investigation and that these witnesses could have verified his defense. The Mississippi Supreme Court has held that “complaints of ineffective assistance of counsel, because [an] attorney failed to make pretrial investigation and to spend more time with [client], are insufficient as a matter of law.” Ward v. State, 821 So.2d 894, 900 (¶ 24) (Miss.Ct.App.2002) (citation omitted). Accordingly, McBeath’s challenge is without merit.

II. Kidnapping Sentence

¶ 13. McBeath argues that the trial court imposed a sentence that exceeded the statutory maximum penalty for kidnapping. The jury found McBeath guilty of kidnapping. However, the jury did not impose a life sentence.

Mississippi Code Annotated section 97-3-53 (Rev.2006) states:

Any person who, without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will, or without lawful authority shall forcibly seize, inveigle or kidnap any child under the age of sixteen (16) years against the will of the parents or guardian or person having the lawful custody of the child, upon conviction shall be imprisoned for life in the custody of the Department of Corrections if the punishment is so fixed by the jury in its verdict. If the jury fails to agree on fixing the penalty at imprisonment for life, the court shall fix the penalty at not less than one (1) year nor more than thirty (30) years in the custody of the Department of Corrections.

¶ 14. This identical issue was raised and found to be meritorious in McBeath’s companion case, Nelson v. State, 10 So.3d 898, 903 (¶ 17) (Miss.2009). In Nelson, the Mississippi Supreme Court held that the trial judge’s sentence of forty years for a kidnapping conviction was outside the statutory limits and, therefore, impermissible.

¶ 15. The statute states that if the jury fails to set the penalty as imprisonment for life, then the court shall fix the penalty at neither less than one year nor more than thirty years in the custody of the Mississippi Department of Corrections. Miss. Code Ann. § 97-3-53. The jury did not impose a life sentence. Therefore, the statute permitted the trial court to impose a sentence of neither less than one year nor more than thirty years. The trial court imposed a sentence of forty years, which exceeded the statutory maximum. We find that McBeath should be resen-tenced in accordance with Mississippi Code section 97-3-53 on his kidnapping conviction only.

III. Admission of Expert Testimony

¶ 16. McBeath’s next assignment of error deals with the admission of the expert testimony of Dr. Hayne. McBeath argues that his convictions should be reversed because Dr. Hayne testified outside the scope of his expertise. Although McBeath objected to the admissibility of photographs of the victim’s body, a review of the record reveals McBeath never challenged or objected to the content of Dr. Hayne’s testimony. Because he did not object to the testimony, McBeath’s argument fails. The Mississippi Supreme Court has held that a failure to object is fatal for purposes of preserving error. Bogan v. State, 754 So.2d 1289, 1292 (¶ 12) (Miss.Ct.App.2000) (citations omitted). Accordingly, this assignment of error is without merit.

IV. Sufficiency and Weight of the Evidence

¶ 17. In his fourth and sixth assignment of errors, McBeath challenges the sufficiency and weight of the evidence. We will address each assignment individually.

a. Sufficiency of the Evidence

¶ 18. “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of the crime existed, this Court will affirm the conviction. Id. If we find that reasonable, fair-minded jurors could have concluded that the defendant was guilty of the accused crime, the evidence will be deemed sufficient. Id. The jury determines the weight and credibility of witness testimony. Moore v. State, 933 So.2d 910, 922 (¶ 43) (Miss.2006).

¶ 19. McBeath was indicted for capital murder pursuant to Mississippi Code Annotated section 97-3-19(2)(e) (Rev.2006) based on his murder of Shannon and the underlying crime of robbery. McBeath was also indicted for the crime of kidnapping pursuant to Mississippi Code Annotated section 97-3-53.

¶ 20. After the State rested, McBeath argued his motion for a directed verdict. The trial court heard arguments from both McBeath and the State. The trial court denied the motion. In denying the motion, the trial judge noted that McBeath’s statement placed him at the scene of the crime and also placed him at Shannon’s car while Shannon was being transported. The trial judge further noted that the taking of the vehicle constituted robbery, the underlying felony, which supported the charge of capital murder. He went on to state that the testimony of Dr. Hayne regarding whether or not Shannon was alive was enough to charge properly the jury with the kidnapping instruction.

¶ 21. McBeath chose to rest his case without presenting any evidence. The jury returned a verdict and convicted McBeath of the lesser offense of simple murder, not capital murder. The jury also convicted McBeath of kidnapping Shannon.

¶ 22. Considering the evidence in the light most favorable to the State, a rational trier of fact could have found beyond a reasonable doubt that McBeath committed the essential elements of the murder and kidnapping of Shannon. In regard to the murder, the jury heard McBeath’s confession of putting Shannon in a headlock and choking him. Further, at McBeath’s request, Nelson (McBeath’s cohort/accomplice) found a plastic garbage bag and duct tape. McBeath placed the bag around Shannon’s face, and Nelson taped the bag around Shannon’s head.

¶ 23. Dr. Hayne testified that the causes of Shannon’s death were two-fold: strangulation and suffocation, and he said that the suffocation was the “terminal event” that caused Shannon’s death. It was determined that a small amount of air could flow through a plastic bag. However, Dr. Hayne testified that a person could survive only a short period of time under those circumstances. Additionally, Dr. Hayne testified that Shannon had sustained linear scrapes on his back, which signified a dragging or sliding movement. The scrapes and bruises also signified that Shannon was alive at the time he sustained the injuries based on the type of bleeding. Dr. Hayne explained that, in contrast, a deceased victim would have pale linear marks with no bruises. Accordingly, we find that there was sufficient evidence for the jury to convict McBeath of murder and kidnapping. This issue lacks merit.

b. Weight of the Evidence

¶ 24. Following the jury verdict, McBeath filed a motion for new trial, which the trial court denied. When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Johnson v. State, 42 So.3d 53, 57 (¶ 14) (Miss.Ct.App.2010). The evidence should be weighed in the light most favorable to the verdict. Id.

¶ 25. Without restating the facts previously presented, and viewing the evidence in the light most favorable to the verdict, we cannot say that the verdict convicting McBeath of murder and kidnapping is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. McBeath confessed to choking Shannon and helping Nelson secure a plastic bag over Shannon’s head.

¶ 26. Dr. Hayne testified that the bleeding of the skin under the linear drag marks and that the bruises on Shannon’s body signified Shannon was alive at the time he sustained those injuries. He also stated that these linear marks were consistent with -dragging. After hearing all the evidence, the jury convicted McBeath of murder and kidnapping. Accordingly, we find that this issue is without merit.

V. Double Jeopardy

¶ 27. McBeath additionally contends the Double Jeopardy Clause barred his prosecution for murder and kidnapping. The same issue was raised and addressed in the companion case, Nelson, 10 So.3d at 907 (¶ 36). Because Nelson revolves around the same set of facts, we will quote the supreme court’s language with regard to this issue:

Murder and kidnapping have separate statutory elements, requiring different facts.

In Bannister v. State, 731 So.2d 583, 586 (Miss.1999), this Court held:

Although the [S]tate may freely define crimes and assign punishments, it is not allowed to punish a defendant for a crime containing elements which are completely enveloped by an offense for which a defendant was previously convicted. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). “If an individual is charged with two offenses, and all the elements of one are included within and are part of a second greater offense, Blockburger intervenes. It charges that we compare statutory offenses, as indicated, and see whether each requires proof of a fact which the other does not.” Meeks v. State, 604 So.2d 748, 751 (Miss.1992). “Even though there may be a substantial ovei'lap in the proof supporting the convictions of the different crimes, the Blockburger test is met where each offense requires proof of an element not necessary to the other.” Holly v. State, 671 So.2d 32, 44 (Miss.1996) (citing Brock v. State, 530 So.2d 146, 150 (Miss.1988)).

Nelson was charged with capital murder pursuant to Mississippi Code Annotated Section 97-3-19(2)(e) for murder and the underlying crime of robbery, which provides:

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsen-sual unnatural intercourse with mankind, or in any attempt to commit such felonies....

Miss.Code Ann. § 97-3-19(2)(e) (Rev. 2006).

Nelson also was indicted for the crime of kidnapping pursuant to Mississippi Code Annotated Section 97-3-53, which provides, in part:

Any person who, without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will, or without lawful authority shall forcibly seize, inveigle or kidnap any child under the age of sixteen (16) years against the will of the parents or guardian or person having the lawful custody of the child....

Miss.Code Ann. § 97-3-53 (Rev.2006).

The crimes of capital murder and kidnapping each require proof of an element not necessary to the other. See Bannister, 731 So.2d at 586 (quoting Holly, 671 So.2d at 44) (Blockburger is met when each crime “requires proof of an element not necessary to the other”). Accordingly, this issue is without merit.

Nelson, 10 So.3d at 907-908 (¶¶ 36-40).

¶ 28. Following the analysis and ruling of the supreme court, we find this issue is also without merit.

VI. Manslaughter Instruction

¶ 29. McBeath next asserts that the trial court erred in failing to give an instruction on manslaughter by culpable negligence. McBeath never requested that the instruction for manslaughter be given. As has been held numerous times before, “[i]t is well established that [e]rror cannot be predicated on failure of the court to give instructions not requested.” Blocker v. State, 809 So.2d 640, 646 (¶ 23) (Miss.2002). However, for the sake of discussion, we will address the merits of the claim.

¶ 30. There is no evidentiary basis for the request of a manslaughter-by-culpable-negligence instruction. The State’s evidence showed the victim died of strangulation and suffocation by way of a plastic bag duct-taped over his head. Further, McBeath has failed to offer any evidence justifying an instruction for manslaughter by culpable negligence. “We have held that there must be some evidentiary support to grant an instruction for manslaughter.” Goodin v. State, 787 So.2d 639, 656 (¶ 57) (Miss.2001). This issue is procedurally barred.

VII. Cumulative Error

¶ 31. McBeath contends that, “in the event this Honorable Court hold[s] that each of the aforesaid claims raised, standing alone, does not constitute cause to grant relief, the cumulative effect of each acted to deprive [McBeath] of his constitutional right to a fair trial.... ”

¶ 82. We find the discussion and analysis above demonstrate the futility of McBeath’s final argument. As we have stated before, “[t]his Court may reverse a conviction and sentence based upon the cumulative effect of errors that independently would not require reversal.” Dunigan v. State, 915 So.2d 1063, 1072 (¶ 41) (Miss.Ct.App.2005) (citing Genry v. State, 785 So.2d 186, 201 (¶78) (Miss.1999)). “However, where there [is] no reversible error in any part, there is no reversible error to the whole.” Id. This issue is without merit.

¶ 33. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT OF CONVICTION OF SIMPLE MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED, CONVICTION OF KIDNAPPING IS AFFIRMED, AND SENTENCE OF FORTY YEARS FOR KIDNAPPING IS VACATED; AND THIS CASE IS REMANDED FOR RE-SENTENCING. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.

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

      . Although Shannon had been planning to spend the weekend with his girlfriend, he had failed to pack his clothes. Furthermore, the family's house cats had been left outside. The back door was unlocked, and every light in the house was on. Additionally, Shannon's cell phone was on the counter with forty-three missed calls. The house was in general disarray, and a pistol, as well as Shannon’s car, was missing.

      . Throughout his brief, McBeath never specifies what his defense was or could have been.