author: GRIFFIS, P.J., CARLTON, J.,

text:
    Mark FAILS and Laura Fails, Appellants v. JEFFERSON DAVIS COUNTY PUBLIC SCHOOL BOARD, Appellee.
    No. 2010-CA-00042-COA.
    Court of Appeals of Mississippi.
    May 24, 2011.
    Rehearing Denied Sept. 13, 2011.

      Alexander Ignatiev, attorney for appellants.
    Reginald Ervin Jones, attorney for ap-pellee.
   GRIFFIS, P.J.,

for the Court:

¶ 1. This is an appeal of a school-board decision that revoked the transfer of Courtney Fails. Mark and Laura Fails assert three issues on appeal. First, the conservator does not have the authority to prevent the district’s school board from voting on a matter. Second, the school board may not lawfully revoke a student’s inter-district transfer after it previously approved the transfer. Third, the school board may not adopt a blanket policy against inter-district transfers. We find no error and affirm.

FACTS

¶ 2. Mark and Laura are the parents of Courtney. They reside in the Jefferson Davis County Public School District (“the District”). In 2003, Mark and Laura requested and obtained a transfer for Courtney to attend school in Sumrall, Mississippi, located in the Lamar County Public School District. This transfer allowed Courtney to attend the school in Sumrall even though she did not reside within that district.

113. In May 2007, the Governor declared a state of emergency in the District. Thereafter, the State Board of Education appointed Glenn Swan to the position of interim conservator for the District.

¶ 4. On August 13, 2007, the Jefferson Davis County Public School Board (“the Board”) adopted a “New Student Transfer Policy”:

It shall be the policy of the [the District] that all students who live in said district must attend school in the Prentiss School District or the Bassfield School District. No student shall be allowed to ... attend another school in a different district when the parents or legal guardian reside at a legal residence] in [the District],

¶ 5. In the summer of 2008, notice was published in a local newspaper that informed all parents within the District of the new transfer policy. The notice stated that all prior transfers were revoked and that no transfers would be allowed in the future. The effect of this policy was that Courtney would have to leave the Sumrall school and return to the District’s schools.

¶ 6. On October 13, 2008, Mark appeared before the Board at its regularly scheduled meeting. He argued to the Board that the intent of the new policy was not to revoke existing transfers but merely to prohibit future transfers. He asked the Board to clarify the meaning of the new policy. Swan invoked his authority as conservator and refused to allow the Board to vote on the matter. Swan decided that the policy did in fact revoke existing transfers.

¶ 7. Mark and Laura appealed this decision to the Circuit Court of Jefferson Davis County, which affirmed Swan’s decision and upheld the revocation of Courtney’s transfer. Their appeal has now been deflected to this Court for review.

STANDARD OF REVIEW

¶ 8. An appeal from an administrative agency is limited. Mainstream Sav. & Loan Ass’n v. Washington Fed. Sav. & Loan Ass’n, 325 So.2d 902, 903 (Miss.1976). In the review of a decision of an administrative agency, we will determine whether the order of the administrative agency: “(1) was unsupported by substantial evidence!,] (2) was arbitrary and capricious!,] (3) was beyond the power of the administrative agency to make[,] or (4) violated some statutory or constitutional right of the complaining party.” Id. However, in ABC Manufacturing Corp. v. Doyle, 749 So.2d 43, 45 (¶ 10) (Miss.1999), the Mississippi Supreme Court held, “[gjenerally, an administrative agency is accorded deference, but when the agency has misapprehended a controlling legal principle, no deference is due, and our review is de novo.”

ANALYSIS

1. Did the conservator have the authority to prevent the Board from a vote on the issue?

¶ 9. The first argument on appeal is that Swan did not have the authority to prevent the Board from voting to clarify the meaning of the “New Student Transfer Policy.”

¶ 10. Swan’s authority as the conservator was broad. The conservator, in essence, becomes the Board. Mississippi Code Annotated section 37-17-6(14)(a) (Supp.2010) provides:

Whenever the Governor declares a state of emergency in a school district in response to a request made under subsection (11) of this section, the State Board of Education, in its discretion, may assign an interim conservator to the school district, ... who will be responsible for the administration, management and operation of the school district, including, but not limited to, the following activities:
(i) Approving or disapproving all financial obligations of the district, including, but not limited to, the employment, termination, nonrenewal and reassignment of all licensed and nonlicensed personnel, contractual agreements and purchase orders, and approving or disapproving all claim dockets and the issuance of checks; in approving or disapproving employment contracts of superintendents, assistant superintendents or principals, the interim conservator shall not be required to comply with the time limitations prescribed in Sections 37-9-15 and 37-9-105;
(ii) Supervising the day-to-day activities of the district’s staff, including reassigning the duties and responsibilities of personnel in a manner which, in the determination of the conservator, will best suit the needs of the district;
(iii) Reviewing the district’s total financial obligations and operations and making recommendations to the district for cost savings, including, but not limited to, reassigning the duties and responsibilities of staff;
(iv) Attending all meetings of the district’s school board and administrative staff;
(v) Approving or disapproving all athletic, band and other extracurricular activities and any matters related to those activities;
(vi) Maintaining a detailed account of recommendations made to the district and actions taken in response to those recommendations;
(vii) Reporting periodically to the State Board of Education on the progress or lack of progress being made in the district to improve the district’s impairments during the state of emergency; and
(viii) Appointing a parent advisory committee, comprised of parents of students in the school district that may make recommendations to the conservator concerning the administration, management and operation of the school district.

(Emphasis added).

¶ 11. Mark and Laura correctly point out that the statute does not specifically provide Swan with the power to prevent the Board from voting to clarify the toans-fer policy. Nevertheless, the statute expressly grants the conservator authority over “the administration, management and operation of the school district.” Id. The statute also indicates that the specific powers granted under the statute are not exhaustive.

¶ 12. Because Mississippi case law is silent on this issue, this Court must look to the plain language of the statute and give the words “their common and ordinary acceptation and meaning[.]” Miss.Code Ann. § 1-3-65 (Rev.2005). The statute uses capacious language to describe the role of the conservator. Control over “administration, management and operation” is commonly understood to mean a very high degree of authority. Based on the statute’s plain language and the general powers conveyed by this language, we must conclude that Swan operated within his statutory powers when he refused to allow the Board to vote on a matter dealing with the “administration, management and operation” of the District. Accordingly, we find that this issue is without merit.

2. Did the Board have the authority to revoke an existing transfer?

¶ 13. Mark and Laura next argue that the Board did not have the authority to revoke Courtney’s transfer. They contend that once an inter-district transfer has been approved it is permanent and irrevocable.

¶ 14. Mississippi Code Annotated section 37-15-29(1) (Supp.2010) provides:

[N]o minor child may enroll in or attend any school except in the school district of his residence, unless such child be lawfully transferred from the school district of his residence to a school in another school district in accord with the statutes of this state now in effect or which may be hereafter enacted.

Inter-district transfers are governed by Mississippi Code Annotated section 37-15-31 (Rev.2007), which provides:

(l)(a) ... [Individual students living in one school district ... may be legally transferred to another school district, by the mutual consent of the school boards of all school districts concerned[.]

Thus, both the transferor and the transferee school boards must consent to the transfer. The statute further provides that if both school boards approve the transfer “such decision shall be final.” Miss.Code Ann. § 37-15-31(l)(b). And if either school board rejects the transfer that decision is also “final.” Id.

¶ 15. Mark and Laura claim that when their initial transfer request was approved, in 2003, that decision became final, in the sense that it was effective in perpetuity and could not be revoked. In contrast, the Board argues that, since the statute requires it to consent to the transfer, it could have withdrawn its consent at any time and thereby revoked Courtney’s transfer.

¶ 16. Neither party cites any legal authority directly on point. We are convinced, after reviewing prior versions of the statute, that “final” does not mean that the transfer could never be revoked.

1117. Under section 6248-07 of the Mississippi Code of 1942, an inter-district transfer required the consent of the boards of trustees and the county boards of education of both the transferor and transferee school districts. If either board of trustees denied the transfer, the board of trustees’ decision could be appealed to the county board of education. Id. The statute also provided for appeals to the State Educational Finance Commission. Id.

¶ 18. The statute underwent several revisions. By 1987, the statute, as it does today, required the consent of the school boards of both the transferor and transferee school districts. 1987 Miss. Laws ch. 307, § 16. The statute provided that if either school board denied the transfer, an appeal could be taken to the State Board of Education. Id.

¶ 19. In 1988, the Legislature passed “An Act to Amend Section 37-15-31, Mississippi Code of 1972, to Delete the Provision for an Appeal to The State Department Of Education from Decisions of Local School Boards Regarding Transfer Students.” 1988 Miss. Laws ch. 466, § 1. The statute was revised to state that if either school board denied the transfer, that decision would be “final.” Id. By 1991, the statute also provided that if both school boards approved the transfer, that decision would be “final.” 1991 Miss. Laws ch. 349, § 2. Those provisions of the statute have remained substantially unchanged up to the present day.

¶ 20. In this context, we conclude that the word “final” simply means that there is no administrative appeal to the State Department of Education. While older versions of the statute allowed for various administrative appeals, the current version does not. We find no authority that supports a conclusion that “final” means the transfer is permanent and irrevocable.

¶ 21. We now turn to the question of whether the Board could withdraw its consent to the transfer. Again, there is no legal authority directly on point. Likewise, there is no statutory language to suggest that once consent has been given for a transfer it cannot be -withdrawn. The Mississippi Supreme Court has noted that student “assignments are not perpetual.” Hinze v. Winston County Bd. of Educ., 233 Miss. 867, 875, 103 So.2d 353, 357 (1958).

¶ 22. Swan sought and obtained an Attorney General opinion. The Attorney General’s opinion stated:

Attorney General Jim Hood is in receipt of your opinion request as the Conservator for the Jefferson Davis County School District and has assigned it to me for research and reply.
Issue
Whether the release of a student pursuant to Section 37-15-31 of the Mississippi Code to attend school in a district other than in the district in which he/she resides is permanent at the time of the release or is the student required to request the release on an annual basis?
Response
The release of the student to attend school in another school district is not permanent. The transfer is effective until either party revokes its consent.
Background
Clarification is needed on the release of a student to attend a school in another district other than in the district he/she resides. The school district has had a number of students released in past years; however, the district has a “no release” policy at the present time.
Applicable Law and Discussion
Section 37 — 15—31(l)(a) of the Mississippi Code provides that upon the petition in writing of a parent or guardian resident of the school district of an individual student filed or lodged with the president or secretary of the school board of a school district in which the pupil has been enrolled or is qualified to be enrolled as a student, individual students living in one school district may be legally transferred to another school district, by the mutual consent of the school boards of all school districts concerned, which consent must be given in writing and spread upon the minutes of such boards.
This office has previously opined on the duration of a transfer of a student. As there is no specific time limitation set forth in Section 37-15-31, the transfer of a student is effective until the school board of either school district, or the county board of education if applicable, revokes its consent. MS AG Op., Swanson (February 16, 2001). However, it is important to note that in the absence of express statutory authority, a school board cannot enter into a transfer contract with another school board for a period of time that would deprive a subsequent board of its rights and powers. Any such contract would be voidable at the election of the subsequent board. MS AG Op., Swanson (February 16, 2001), quoting Humble Oil & Refining Co., et al v. State et al., 206 Miss. 847, 41 So.2d 26 (1949). See also MS AG Op., Boleware (September 10, 2008).
Conclusion
We are of the opinion that the transfer of a student to another school district pursuant to Section 37-15-31 of the Mississippi Code can be revoked by the school board of either school district. Additionally, a school board cannot enter into a transfer contract that would deprive a subsequent board of its rights and powers.

Miss. Att’y Gen. Op., 2008-00524, 2008 WL 4825783, Swan (Oct. 3, 2008).

¶ 23. We agree with the Attorney General’s opinion. Therefore, we hold that a school board may withdraw its consent to an inter-district transfer and thereby revoke the transfer. Accordingly, this issue is without merit.

3. Could the Board adopt a blanket policy against transfers?

¶ 24. Mark and Laura also attack the “New Student Transfer Policy.” They argue that the Board could not adopt a blanket policy against inter-district transfers. They argue that individual transfer requests must be considered on a case-by-case basis and that, when making their decisions, school boards must consider certain factors enumerated in Mississippi Code Annotated section 37-15-15 (Rev. 2007).

¶ 25. However, section 37-15-15 requires school boards to consider certain factors when assigning students to a particular school or attendance center within a district. It does not apply to inter-district transfers. Hinze, 233 Miss. at 874, 103 So.2d at 356.

¶ 26. Section 37-15-31 grants school districts absolute discretion to grant or deny inter-district transfers, with some exceptions that are not applicable to this case. It follows that districts may adopt uniform policies against transfers. It would be a difference in form only if a district denied each individual transfer request, as opposed to announcing preemptively that there will be no transfers. This issue has no merit.

¶ 27. THE JUDGMENT OF THE JEFFERSON DAVIS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J, IRVING, P.J., MYERS, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BARNES, J. RUSSELL, J., NOT PARTICIPATING.

CARLTON, J.,

dissenting:

¶28. I respectfully dissent from the majority. I would reverse the trial court’s affirmance of the decision of the interim conservator of the Jefferson Davis County Public School District (“the District”), and would remand Mark and Laura Fails’s request for a school transfer for their daughter, Courtney, back to the District for disposition by the proper authority, the State Board of Education.

¶ 29. A review of the record shows that after the Governor declared a state of emergency in the District, the State Board of Education appointed an interim conservator for the District. The record reflects that the interim conservator then implemented a new student transfer policy, that had been previously adopted by the Jefferson Davis County Public School Board (“the Board”), which revoked all prior school transfers, including Courtney’s previously granted transfer to the Lamar County Public School District, and prevented any future transfers from being granted. The record further shows that Mark appeared before the Board and requested a reconsideration of the denial of Courtney’s transfer, but the interim conservator refused to allow the Board to consider his request. The record indicates that, practically speaking, the interim conservator’s decision, which denied consideration of Courtney’s school transfer request, forced Courtney to attend a school in a school district operating under a state of emergency.

¶ 30. Mississippi Code Annotated sections 37 — 17—6(ll)(b) and (c) (Supp.2010) speak directly to the authority of the State Board of Education after it has been determined that an emergency situation exists in a school district that is detrimental to the interests of the children attending school in the district. Sections 37-17-6(ll)(b) and (c) provide the following in pertinent part:

(b) If the State Board of Education and the Commission on School Accreditation determine that an extreme emergency situation exists in a school district that jeopardizes the safety, security or educational interests of the children enrolled in the schools in that district and that emergency situation is believed to be related to a serious violation or violations of accreditation standards or state or federal law, or when a school district meets the State Board of Education’s definition of a failing school district for two (2) consecutive full school years, the State Board of Education may request the Governor to declare a state of emergency in that school district. For purposes of this paragraph, the declarations of a state of emergency shall not be limited to those instances when a school district’s impairments are related to a lack of financial resources, but also shall include serious failure to meet minimum academic standards, as evidenced by a continued pattern of poor student performance.
(c) Whenever the Governor declares a state of emergency in a school district in response to a request made under paragraph (a) or (b) of this subsection, the State Board of Education may take one or more of the following actions:
(iii) Assign an interim conservator, or in its discretion, contract with a private entity with experience in the academic, finance and other operational functions of schools and school districts, who will have those powers and duties prescribed in subsection (14) of this section;
(iv) Grant transfers to students who attend this school district so that they may attend other accredited schools or districts in a manner that is not in violation of state or federal law[. ]

(Emphasis added).

¶ 31. While the trial judge relies upon Mississippi Code Annotated sections 37-17-6(14)(a) (Supp.2010) and 37-15-31 (Rev. 2007) to support his finding that substantial evidence existed to support the interim conservator’s decision to prohibit a vote on the-Fails’s request for a school transfer, I find that these statutory provisions are inapplicable to the present case. These statutes provide no authority to a district’s conservator to deny a student’s request for a school transfer out of a failing school district to an accredited school district, and as stated previously herein, section 37-17-6(ll)(c)(iv) specifically places that authority with the State Board of Education. Furthermore, I find that the statutory provisions cited by the majority may be waived by the State Board of Education when the Governor declares a state of emergency in the school district in which the child attends, and the State Board of Education may grant the request for a school transfer so that the child can attend a school in an accredited district. See section 37 — 17—6(11) (c) (iv) (authorizing the State Board of Education to grant school transfers when the Governor declares a state of emergency in a school district).

¶ 32. I recognize that this Court applies the same standard of review that the chancery and circuit courts are bound by when considering agency actions. Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 429 (¶ 32) (Miss.2000) (citing Miss. Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993)). A circuit court sitting as an appellate court reviews a decision of a county school board to determine whether or not the action of the school hoard was arbitrary and capricious, unreasonable, or constituted an abuse of discretion. Pascagoula, 776 So.2d at 684-85 (¶ 5) (citations omitted). See Uniform Rule of Circuit and County Court 5.03. In applying this standard of review to the case at hand, I find that the interim conservator failed to comply with his statutory authority during a declared state of emergency, see sections 37 — 17—6(ll)(b) and (c)(iv); therefore, his actions were arbitrary and capricious, and constituted an abuse of discretion. See Pascagoula, 776 So.2d at 685 (¶ 5). I further find that the trial judge in the present case misapprehended the law by basing his finding on statutory provisions that are inapplicable to the present case, and by failing to apply the statutory provisions that specifically pertain to the State Board of Education’s authority to grant a request for a transfer from a school district operating under a state of emergency to an accredited school district. As such, I would reverse the trial court and remand this ease to the District, or to the interim conservator, if the District is still operating under a state of emergency, for appropriate consideration and submission to the State Board of Education for a decision in accordance with section 37-17-6(ll)(c)(iv).

BARNES, J., JOINS THIS OPINION.

      . The statute also allows for inter-district transfers in a few other limited situations that are not applicable to this case. See Miss.Code Ann. § 37-15-31(2)-(5).

      . I pause to note that the Fifth Circuit has held that, when applying fundamental principles of statutory construction, specific statutory provisions control over general provisions absent clear legislative intent to the contrary. See Carmona v. Andrews, 357 F.3d 535, 538 (5th Cir.2004); Ehm v. Nat'l R.R. Passenger Corp., 732 F.2d 1250, 1253 (5th Cir.1984).

      . Miss.Code Ann. §§ 37-15-29 (Supp.2010) and 37-15-3 l(Rev.2007).

      . I recognize that the statutory provisions cited by the majority do apply to school districts that have not been declared by the Governor to exist in a state of emergency. However, I also recognize that the Mississippi Supreme Court has held in cases pertaining to school transfers in such situations, that a valid reason is required to support a denial of a school transfer in such situations, otherwise the decision is arbitrary and capricious and lacks substantial evidence. See Pascagoula Mun. Sch. Dist. v. Barton, 776 So.2d 683, 688 (¶ 16) (Miss.2001) (finding that a proper reason was required to support the denial of a student's request to be transferred to her sibling’s school, even though no statutory provisions or school transfer policy existed guaranteeing sibling assignments, and no state of emergency had been declared in the school district).


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Cecil R. BEN, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CA-01495-COA.
    Court of Appeals of Mississippi.
    May 31, 2011.
    Rehearing Denied Nov. 1, 2011.

      Julie Ann Epps, Canton, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   LEE, C.J.,

for the court:

PROCEDURAL HISTORY

¶ 1. A jury in the Leake County Circuit Court convicted Cecil R. Ben of forcible rape. Ben was sentenced to life in the custody of the Mississippi Department of Corrections. Ben’s post-trial motions were denied. Ben subsequently filed an appeal, asserting several issues that we have reordered as follows: (1) he was denied his right to a speedy trial; (2) he was not presented with a full jury panel before exercising his peremptory challenges; (3) the trial court erroneously admitted several hearsay statements; (4) the trial court erroneously admitted the testimony of Otis Mingo; (5) the evidence was insufficient to support the verdict, and the verdict is against the overwhelming weight of the evidence; and (6) his sentence was disproportionate to his crime.

FACTS

¶ 2. On October 3, 2007, at approximately 4:30 a.m., Ben, a bus driver with the Choctaw Transit Authority, picked up a passenger, Monica. Monica was eighteen years old at the time and a student at East Central Community College. Monica lived on Highway 35 outside of Carthage, Mississippi. Monica testified that she was the first passenger on the bus that morning. At one point during the ride, Ben pulled over at the intersection of Highways 35 and 25 in Carthage. Monica testified that Ben then came back to her seat and tried to kiss her. Monica resisted his advances by pushing, kicking, and yelling; but Ben overpowered her. Monica testified that Ben was able to pin her down, while he pulled her pants and underwear down. Monica stated that Ben then inserted his penis into her vagina. Monica stated that after the rape, Ben cleaned himself with paper towels, and then he threw these paper towels out of the bus.

¶ 3. Monica did not notify anyone of the rape until October, 7, 2007, when she told her best friend, Maurice Hines. Monica testified that she waited until then to notify anyone because she was ashamed and embarrassed. Monica identified Ben in the courtroom as the person who had raped her.

¶ 4. Hines testified that he spoke with Monica the night of October 7th. Hines testified that he could tell that Monica was upset and urged her to confide in him. Hines testified that Monica then told him that she had been raped by Ben.

¶ 5. Monica then informed her mother of the situation, and her mother called the Choctaw Police Department. Officer Timothy Thomas responded to Monica’s home, where he took Monica’s statement and received the clothes Monica had worn at the time of the rape. Officer Thomas then followed Monica to the location of the rape, where Officer Thomas was able to locate the paper towels used by Ben. Monica had informed Officer Thomas that the paper towels were “brown or pink-looking.” Officer Thomas then determined that the rape had occurred in Carthage, so the Carthage Police Department was notified and given the evidence collected thus far. On cross-examination, Officer Thomas testified that in his report, he noted that Monica told him that she had waited to report the crime because she felt ashamed, dirty, and partly responsible.

¶ 6. Officer Van Perry of the Carthage Police Department testified that he took possession of the four paper towels and the victim’s clothing. Officer Perry then handed the evidence to Officer Kevin Cross. Officer Perry also told Monica that she needed to undergo a rape test.

¶ 7. Sharon Hockett, a registered nurse with the Choctaw Health Department, was called in to perform an exam on Monica. Hockett testified that Monica appeared upset and frightened, but a rape kit was not performed because the rape had occurred over seventy-two hours prior to the exam.

¶ 8. Bill Jones, an analyst with the Mississippi State Crime Laboratory, testified that samples of a paper towel containing seminal fluid and blood samples from Ben and Monica were sent to a private forensic laboratory, Orchid Cellmark, in Texas for further DNA testing. Casey Dupont, the senior forensic scientist at Orchid, performed DNA testing on all three samples. Dupont testified that the stain on the paper towel contained a mixture consistent with the DNA from the blood samples from both Ben and Monica.

DISCUSSION

I. SPEEDY TRIAL

¶ 9. Ben argues that his constitutional right to a speedy trial was violated under the factors set out by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Since there is no set amount of time within which a defendant must be brought to trial, the United States Supreme Court has developed a balancing test to determine whether a defendant’s constitutional right to a speedy trial has been violated. See Barker, 407 U.S. at 530, 92 S.Ct. 2182. The four factors to be considered together and balanced are: (1) the length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. Id. at 530-32, 92 S.Ct. 2182; see Stark v. State, 911 So.2d 447, 450 (¶ 7) (Miss.2005).

A. Length of the Delay

¶ 10. Under Barker, “[t]he length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530, 92 S.Ct. 2182. In Mississippi, any delay from the date of arrest, indictment, or information until trial exceeding eight months is presumptively prejudicial. Stark, 911 So.2d at 450 (¶ 7); Smith v. State, 550 So.2d 406, 408 (Miss.1989).

¶ 11. Ben was arrested on October 19, 2007, and he was incarcerated until November 5, 2007, when he posted bail. Ben was not indicted until November 8, 2008, and trial began on May 11, 2009. Since the delay exceeds eight months, it is presumptively prejudicial, and the cause of the delay must be analyzed under the remaining Barker factors.

B. Reason for the Delay

¶ 12. “Once a delay is found to be presumptively prejudicial, the burden of proof shifts to the State to show cause for the delay.” Stark, 911 So.2d at 450 (¶ 11). The appellate court must determine whether the delay should be charged to the State or the defendant. Id. Since the burden is on the State to provide a defendant with a speedy trial, this factor is weighed against the State unless it can show either that the delay was caused by the defendant or that the delay was for a good cause. Id.; Wiley v. State, 582 So.2d 1008, 1012 (Miss.1991).

¶ 18. The majority of the delay was caused by the length of time it took to perform DNA testing on the evidence. The report from the crime lab, which included the DNA tests from Orchid, were not confirmed until mid-July 2008, one month after the Leake County grand jury’s June meeting. The case was not presented to the grand jury until its next scheduled meeting in November.

¶ 14. However, the trial judge signed an agreed order of continuance on January 27, 2009, which states that Ben’s trial counsel filed a motion for continuance. The trial judge granted this motion and continued the matter until May 11, 2009, the day trial was set to begin. “Well-taken” motions for continuance may justify a delay in a criminal ease. Flora v. State, 925 So.2d 797, 815 (¶ 63) (Miss.2006).

¶ 15. As it is apparent that there was reason for delay from both Ben and the State, we find this factor to be neutral.

C. Assertion of the Right to a Speedy Trial

¶ 16. Ben filed a motion to assert his right to a speedy trial and a motion to dismiss for a violation of his right to a speedy trial on January 5, 2009. Shortly thereafter, the agreed order of continuance was signed. During the hearing on this motion, Ben admitted that the fact that a significant amount of time • had elapsed would not weigh in his favor. We agree. In Adams v. State, 588 So.2d 165, 169-70 (Miss.1991), the Mississippi Supreme Court held that a demand for dismissal coupled with a demand for instant trial was insufficient to weigh the third Barker prong in defendant’s favor where the motion came after the bulk of the delay had elapsed. This factors weighs against Ben.

D. Prejudice to the Defendant

¶ 17. There are three main considerations in determining whether the accused has been prejudiced by a lengthy delay: “(1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired.” Jefferson v. State, 818 So.2d 1099, 1108 (¶ 21) (Miss.2002) (internal quotations omitted). “Generally, proof of prejudice entails the loss of evidence, death of witnesses, or staleness of an investigation.” Sharp v. State, 786 So.2d 372, 381 (¶ 19) (Miss.2001).

¶ 18. Ben contends that due to the lengthy delay, he was unable to work and suffered anxiety. Ben also argues that the delay affected the memories of potential witnesses. Ben contends that several of the riders who got on the bus shortly after the rape could have testified about Monica’s behavior. Ben’s trial counsel stated that several of these witnesses had been interviewed and could not remember anything. While Ben argues he was prejudiced by the fading memory of potential witnesses, the fact remains that Ben was able to contact these witnesses in order to prepare his defense. Just because a potential witness’s recollection fails to support Ben’s theory does not indicate prejudice to his defense.

¶ 19. Although a delay did exist, we cannot find that Ben’s constitutional right to a speedy trial was violated. This issue is without merit.

II.JURY

¶ 20. In his next issues, Ben contends that the trial judge required him to make peremptory challenges even though the State had not presented a full panel of jurors. However, Ben failed to make a contemporaneous objection, a fact which Ben readily admits. This issue is therefore waived. See Wardley v. State, 760 So.2d 774, 777 (¶ 11) (Miss.Ct.App.1999). Even if we were to review this argument subject to the plain-error rule, we would find no merit. The State accepted twelve jurors prior to submitting them to Ben. Ben then proceeded to exercise his peremptory strikes. This issue is without merit.

III.HEARSAY STATEMENTS

¶ 21. Ben contends that statements made by Hockett and Hines were hearsay and should not have been admitted. In regard to Hockett’s testimony, Ben claims that her statement, “[t]here was nothing to indicate that [Monica] was not telling the truth,” was hearsay. However, Ben failed to make a contemporaneous objection; thus, we decline to review this argument on appeal. Davis v. State, 43 So.3d 1116, 1126 (¶ 35) (Miss.2010).

¶ 22. Ben argues that Hines’s testimony should not have been admitted. Hines testified that Monica told him she had been raped by Ben. Ben’s trial counsel objected that whatever Monica had told Hines was hearsay and did not fall under any hearsay exception. Hines’s testimony was clearly hearsay, as it was offered to prove that Ben had raped Monica. The trial judge determined that the testimony met the hearsay exception under Mississippi Rule of Evidence 803(3). Rule 803(3) exempts a statement from the hearsay rule if it is “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.... ” We find that the trial court erred in admitting the hearsay statement under Rule 803(3). The statement is a statement of belief to prove a fact believed by the victim, but it does not relate to the execution, revocation, identification, or terms of the victim’s will. Thus, Rule 803(3) is not a viable avenue for admission of Monica’s statements to Hines.

¶ 23. However, we find that the admission of Hines’s statement was harmless error since the properly admitted evidence, as will be discussed further in this opinion, is more than sufficient to support the jury’s verdict. This issue is without merit.

IV.TESTIMONY OF OTIS MINGO

¶ 24. Ben argues that the trial court erred in allowing Mingo’s testimony before the jury. Ben objected to Mingo’s testimony that discussed certain statements made by Ben to Mingo about Monica two days prior to the rape. Monica was lying on a picnic table at the Transit Authority with her legs propped up. Ben purportedly told Mingo: “That stuff looks real good.” Ben contends that this statement by Mingo was not disclosed during discovery. However, the trial court noted that Ben was notified of the State’s intent to use Mingo as a witness as early as mid-January 2009, approximately five months prior to trial.

¶25. Regardless, Ben did not seek a continuance or a mistrial. “The failure to request a continuance constitutes a waiver of the discovery violation.” Sims v. State, 928 So.2d 984, 988 (¶ 19) (Miss.Ct.App.2006). Therefore, this issue is procedurally barred from our consideration on appeal because Ben failed to move for a continuance at trial.

V. WEIGHT AND SUFFICIENCY OF THE EVIDENCE

¶26. Ben contends that the evidence was legally insufficient to support the verdict, and the verdict is against the overwhelming weight of the evidence.

¶ 27. In regard to whether the evidence was legally sufficient to support the verdict, we look to our standard of review. “[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[.]’ ” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id. However, it is well-settled law that the jury determines the credibility of witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003).

¶ 28. “An individual may be found guilty of rape on the uncorroborated testimony of the prosecuting witness, where the testimony is not discredited or contradicted by other credible evidence.” Parramore v. State, 5 So.3d 1074, 1077 (¶ 12) (Miss.2009). According to Monica, Ben held her down and raped her. Monica testified that she resisted, but Ben was too strong. DNA from both Monica and Ben was found on a paper towel near where the rape had occurred. Although Monica failed to report the rape immediately afterward, she testified that she was ashamed of what had happened. It was the jury’s job to determine Monica’s credibility, and it clearly resolved any conflicts in the evidence in the State’s favor. Lacking credible evidence to prove otherwise, the jury found that Ben had forcibly raped Monica. We find that there was sufficient evidence to find Ben guilty of forcible rape.

¶29. In regard to whether the verdict is against the overwhelming weight of the evidence, “we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). From the evidence described in the preceding paragraph, we cannot find that allowing the guilty verdict to stand would sanction an unconscionable injustice. This issue is without merit.

VI. SENTENCE

¶ 30. In his final issue, Ben argues that his sentence was disproportionate when compared to sentences given to those convicted of the same offense. As a general rule, a sentence that does not exceed the maximum period allowed by statute will not be disturbed on appeal. Wallace v. State, 607 So.2d 1184, 1188 (Miss.1992). However, a sentence that is “grossly disproportionate” to the crime committed is subject to attack on Eighth Amendment grounds. Id. “[A]s the Mississippi Supreme Court has said on countless occasions, ‘[s]o long as the sentence imposed is within the statutory limits, sentencing is generally a matter of trial court discretion.’ ” Williams v. State, 784 So.2d 230, 237 (¶ 19) (Miss.Ct.App.2000) (quoting Green v. State, 631 So.2d 167, 176 (Miss.1994)).

¶ 31. Pursuant to Mississippi Code Annotated section 97-3-65(4)(a) (Supp.2010), a person convicted of forcible sexual intercourse “shall be imprisoned for life in the State Penitentiary if the jury by its verdict so prescribes.... ” Ben’s guilt and sentence were set by the jury. Ben cites to several cases involving rape in support of his argument; however, in two of these cases, the defendants were sentenced to life in prison.

¶ 32. The United States Supreme Court stated that a three-pronged test should be used when a sentence imposed leads to an inference of gross disproportionality. Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), overruled in part by Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). The supreme court has stated that: “Unless a ‘threshold comparison of the crime committed to the sentence imposed leads to an inference of gross dis-proportionality,’ ” an analysis under Solem is not necessary. Ford v. State, 975 So.2d 859, 869 (¶ 39) (Miss.2008). Ben was sentenced pursuant to the statutory guidelines, and we do not find that his sentence leads this Court to an inference of gross disproportionality. Therefore, a review under Solem is not necessary. This issue is without merit.

¶ 33. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT OF CONVICTION OF RAPE AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The Court of Appeals declines to identify victims of sexual assault; thus, we have changed the victim’s name and other pertinent names to protect her identity.


author: LEE, C.J., MAXWELL, J.,

text:
    Jason Bernard FOXWORTH a/k/a Jason Benard Foxworth, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00243-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.
    Rehearing Denied June 5, 2012.
    Certiorari Denied Aug. 30, 2012.

      Keith Pisarich, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Jason Foxworth was found guilty in the Circuit Court of Harrison County of capital murder. He was sentenced to life in the custody of the Mississippi Department of Corrections (MDOC) without the possibility of parole.

¶ 2. Foxworth now appeals his conviction, asserting two issues: (1) reversible error occurred when the State told the jury in its opening statement that Steven Lamar Fairley, a co-defendant, had pleaded guilty to armed robbery in the same crime, and (2) the trial court committed reversible error in failing to grant either of his two motions to continue the trial date. Finding no reversible error, we affirm.

FACTS

¶ 3. Tavares Turner testified that he was holding approximately $10,000 cash for his roommate, Michael Williams, to purchase a car. Turner’s coworker, Fairley, had an antique car for sale for $8,000. Turner told Fairley that he was holding a large amount of cash for Williams. Fairley told Foxworth about the cash. According to Fairley, Foxworth encouraged him to rob Turner before Turner had a chance to spend the cash.

¶ 4. One evening, Foxworth, Fairley, Mark Kee Brown, and an unidentified male met up and drove to Turner’s home in D’Iberville, Mississippi. When they arrived, Fairley went inside, and he and Turner sat down to talk and watch television. Turner’s cousin, Lenny Jackson, and Turner’s uncle, Larry Turner (Larry), were also in the home. A few minutes later, Foxworth, Brown, and the unknown man entered the home and began asking: “Where the money at?” The three men were armed. They ordered Turner, Fair-ley, and Jackson to get on the ground. They kicked both Turner and Jackson in the head and demanded the money. Larry was taken into another room and shot in the neck. Larry subsequently died. Turner told the men that the cash was in his pocket in a sock. They took the sock and left.

DISCUSSION

I. CO-INDICTEE’S GUILTY PLEA

¶ 5. Prior to Foxworth’s trial, Fair-ley pleaded guilty to a reduced charge of armed robbery and was sentenced to twenty years in the custody of the MDOC. Fairley testified at Foxworth’s trial. During the State’s opening statement, the following exchange occurred:

[State]:.... Ladies and gentlemen, we’ll also have testimony in this case that Mr. Fairley was charged with this crime, I want to tell you this up front, and he pled to an armed robbery charge.
[Foxworth’s attorney]: Your Honor, we object to that, if the Court please. We object to that, Your Honor, and we move for a mistrial.
THE COURT: Overruled. Overruled. [State]: He’s currently serving a sentence in the penitentiary for his action ....

¶ 6. At the conclusion of the State’s opening statement, the trial court discussed the motion for a mistrial with the attorneys outside the presence of the jury. In overruling the motion, the trial court found: “The [S]tate has a right to anticipate defenses and to discuss those defenses in their opening statement.” The trial proceeded. Foxworth’s counsel attacked Fairley’s credibility during the defense’s opening statement.

¶ 7. The following morning, Foxworth renewed his objection and motion for a mistrial. A lengthy discussion ensued outside the presence of the jury. In denying the motion for a mistrial, the trial judge stated:

I am at this time going to overrule the renewed motion for a mistrial. However, I’m going to direct that the [S]tate be prohibited from inquiring on direct examination whether or not Mr. Fairley has entered any type of plea or been adjudicated on any type of underlying felony of armed robbery or the fact that he was a co-indictee and charged in this case.... So if the statement was improper and error, I think, taken in the totality of the circumstances and the evidence that this Court anticipates to be elicited from Mr. Fairley, it was harmless error. If Mr. Fairley does not testify, then I will allow the defense to renew that motion for a mistrial....

¶ 8. Foxworth is correct that evidence of a co-defendant’s guilty plea or conviction is generally inadmissible “because such plea of guilty or conviction is no evidence of the guilt of the party being tried.” Buckley v. State, 223 So.2d 524, 528 (Miss.1969). However, further analysis is necessary to determine whether reversible error occurred in this case.

¶ 9. We find the cases of Clemons v. State, 732 So.2d 883 (Miss.1999) and White v. State, 616 So.2d 304, 308 (Miss.1993) instructive on whether the State’s comments should have resulted in a mistrial. In Clemons, Bobby Clemons was convicted by a jury of three counts of murder. Clemons, 732 So.2d at 884-85 (¶ 1). His co-indictee, Timothy Sudberry, was called by the State to testify at Clemons’s trial. Id. at 890 (¶ 27). On direct examination, Sud-berry stated that he had pleaded guilty to accessory after the fact to the same crime for which Clemons was on trial. Id. On appeal, Clemons argued that he was denied the right to a fair trial because of Sudberry’s testimony. Id. Clemons cited to Johns v. State, 592 So.2d 86 (Miss.1991), wherein the Mississippi Supreme Court found reversible error where a co-indictee testified that a jury had found her guilty of the same crime for which the defendant was being tried. Id. at 91-92. In Johns, the reversal was based on ineffective assistance of counsel for the defense counsel’s failure to object to the co-indictee’s testimony. Id. In affirming the verdict against Clemons, the supreme court found Johns distinguishable. Clemons, 732 So.2d at 890 (¶ 29). In Clemons, the supreme court stated:

The danger at issue in [ Johns ] is that one jury would rely upon the judgment of a prior jury in reaching its decision. The present case is distinguishable, however, because the case sub judice deals with a plea of guilty; that is, a prior admission of guilt, which is consistent with the testimony at trial. This is a significant distinction because prior statements have evidentiary value different from prior findings of other tribunals.

Id.

¶ 10. In White, the State told the jury during an explanatory statement that two co-conspirators had pleaded guilty to the same crime for which Joan White was on trial. White, 616 So.2d at 305. The co-conspirators had not yet testified. Id. White moved for a mistrial, which was denied. Id. The supreme court found the statements should have been excluded because “the prosecutor jumped the gun.” Id. at 308. However, no reversible error was found. Id. The supreme court noted the credibility of the co-conspirators was central to the case, and “[i]t would strain credulity to suggest that, but for the introduction of the guilty plea, this attack on [the co-conspirators] would not have been made.” Id. The court also noted the guilt of the co-conspirators was not a disputed fact at trial. Id.

¶ 11. The State mentioned Fairley’s guilty plea in its opening statement long before Fairley’s credibility was attacked. While the statement was premature, we cannot find it to be reversible error. First, opening statements are not evidence. Second, the trial court instructed the State to refrain from questioning Fair-ley about the guilty plea on direct examination. The State complied, and Fairley’s guilty plea was not discussed further during the trial. Third, the trial court stated that it would reconsider the motion for a mistrial if Fairley did not testify. Finally, Foxworth failed to show how he was prejudiced by the comments made during the opening statement.

¶ 12. Fairley’s guilty plea was not discussed in opening statement as evidence of Foxworth’s guilt; rather, the statement went to Fairley’s credibility. Regardless, the trial court proceeded appropriately in instructing the State to refrain from further comments regarding the guilty plea. Fairley testified and was thoroughly cross-examined on his involvement in the crime. While Fairley’s guilty plea was not mentioned again after opening statements, Fairley’s guilt was not disputed. Fairley admitted he returned to the crime scene approximately an hour after the shooting, was taken into custody, and gave a statement to the police. We find this issue is without merit.

II. CONTINUANCE

¶ 13. On November 2, 2007, and November 9, 2007, Foxworth filed motions to continue his trial, which was scheduled for November 13, 2007. In his second motion, Foxworth argued he needed additional time to prepare for trial as he had “only recently received additional discovery from the prosecution including the autopsy report, audio tapes[,] and photographs.” A hearing was held on the motion.

¶ 14. The new photographs received by Foxworth’s counsel were color photographs that had previously been given to him in black and white. There were also approximately twenty photographs submitted that had not been previously given to defense counsel. These photographs were of the deceased victim at the crime scene. The trial court excluded the photographs that had not been previously given to Fox-worth. As for the audio tapes, Foxworth’s counsel admitted he had been provided a transcript of the tapes during discovery. The trial court instructed Foxworth’s counsel to bring any discrepancies between the audio tapes and transcripts to the court’s attention before trial. The autopsy report was not discussed at the hearing, and there is no evidence that Foxworth did not receive the autopsy report in a timely manner. Even if Foxworth first received the autopsy report on November 9, this still gave him until November 13 to review the report. Further, the victim’s manner of death was not disputed by the parties, and Foxworth did not argue any prejudice regarding when he received the autopsy report.

¶ 15. “The standard of review to grant or deny a motion for continuance is within the sound discretion of the trial court and will not be grounds for reversal unless shown to have resulted in manifest injustice.” Payton v. State, 897 So.2d 921, 931 (¶ 11) (Miss.2003). We cannot find the trial court abused its discretion in denying Foxworth’s motions for continuance. There has been no showing of manifest injustice. This issue is without merit.

¶ 16. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS AND RUSSELL, JJ„ CONCUR. MAXWELL, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY BARNES AND CARLTON, JJ. MYERS, J., NOT PARTICIPATING.

MAXWELL, J.,

specially concurring:

¶ 17. I agree with the result reached by the majority but write separately to address the propriety of the State’s preemptive use of an accomplice’s guilty plea to blunt a defendant’s attack on an accomplice’s credibility. I find this practice serves a proper evidentiary purpose and is permissible if a limiting instruction is given and the accomplice testifies at trial.

I. A Co-defendant’s Guilty Plea Is Admissible for Other Purposes

¶ 18. The Mississippi Supreme Court has recognized that “[fjederal and state appellate courts have found the admission of a co-conspirator’s plea of guilty, while incompetent as substantive evidence of the defendant’s guilt, may be admissible for other purposes.” Considering what qual-ifíes as a legitimate purpose, the United States Court of- Appeals for the Fifth Circuit has held “[preemptively introducing a plea to counteract anticipated defense efforts at impeachment is a proper purpose.” United States v. Setser, 568 F.3d 482, 494 (5th Cir.2009). This legitimate evidentiary purpose focuses on lessening the impact of a defendant’s attack on an accomplice’s credibility. To proceed in this manner, the co-defendant must ultimately testify and be subjected to cross-examination.

¶ 19. Here, Foxworth and Fairley were initially charged as co-defendants for the capital murder of Larry Turner. Obviously, Foxworth and his attorney knew the State had allowed Fairley to plead guilty to the lesser offense of armed robbery— the underlying offense of the capital-murder charge.

¶ 20. Recognizing that finger pointing and credibility attacks aimed at Fairley would figure prominently in Foxworth’s defense strategy, the State mentioned in its opening statement that Fairley had initially been charged with “this crime”— meaning capital murder. The prosecutor explained he wanted to tell the jury “up front” that Fairley had “pled to an armed robbery charge.” The mention of Fair-ley’s guilty plea drew an objection and request for a mistrial from Foxworth. But in overruling Foxworth’s request, the trial judge correctly held “the [Sjtate has a right to anticipate defenses and to discuss those defenses in [its] opening statement.” Yet the trial judge restricted the State from inquiring on direct examination whether Fairley had entered a guilty plea to a reduced charge. He also prevented the State from mentioning that Fairley initially had been charged with Foxworth as co-defendants in the capital-murder case.

II. Preemptive Use of an Accomplice’s Guilty Plea

¶ 21. The Fifth Circuit has considered the admission of a co-defendant’s guilty plea in a procedural posture quite similar to this one. In United States v. Veltre, 591 F.2d 347, 349 (5th Cir.1979), defense counsel objected to the government’s mention of an accomplice’s guilty plea during its opening statement. On appeal, Veltre, like Foxworth, claimed the preemptive mention of his accomplice’s guilty plea entitled him to a mistrial. The Fifth Circuit disagreed, recognizing “[d]efense counsel’s expected defense on this theory was merely brought out in advance by the [government to blunt adverse impact on the jury and to minimize the impression that the [government was trying to conceal [the co-defendant’s] guilty plea.” Id. The Fifth Circuit acknowledged that in cases where the co-defendant testifies at trial and is “subject to the rigors of cross-examination,” the government’s “disclosure of the guilty plea to blunt the impact of attacks on [the co-defendant’s] credibility serves a legitimate purpose and is permissible.” Id. (citing United States v. King, 505 F.2d 602, 607 (5th Cir.1974)). More recently in United States v. Valuck, 286 F.3d 221, 228-29 (5th Cir.2002), the Fifth Circuit found the government’s introduction of a co-conspirator’s guilty plea during opening statement and again during direct examination served a dual purpose. It reduced “the potential effects of impeachment, while showing the jury that [the accomplice] had not been provided any ‘sweetheart deal’ in exchange for his testimony.” Id. at 229. Approving this strategy, the Fifth Circuit reflected: “Surely, the government is permitted to outline its evidence during opening [statement], and that, of course, includes evidence about an accomplice’s guilty plea.” Id. (citing United States v. Magee, 821 F.2d 234, 241 (5th Cir.1987)).

¶ 22. But when offering the guilty plea of a witness-accomplice, protective measures must be taken: (1) the guilty plea must serve a legitimate purpose, and (2) a proper limiting instruction should be given. United States v. Marroquin, 885 F.2d 1240, 1247 (5th Cir.1989). Potential prejudice may be reduced by instructing the jury that “the fact that an accomplice has entered a plea of guilty to an offense charged is not evidence, in and of itself, of the guilt of any other person” and that such testimony should be “received with caution and weighed with great care.” Valuck, 286 F.3d at 228.

¶ 23. Indeed, the State’s assessment of Foxworth’s defense rang true. During his opening statement, Foxworth’s attorney vigorously attacked Fairley’s credibility as a witness. This tactic continued throughout the trial. Fairley testified and was thoroughly examined about his alleged bias. Abiding by the trial judge’s earlier ruling restricting questions about the original charge and guilty plea, neither excluded topic was broached. Thus, Foxworth’s attorney withdrew his earlier proposed limiting instruction, which would have likely been given if not for the trial court’s restriction against mentioning Fairley’s guilty plea or the original charge and would have provided adequate protection here.

¶ 24. Contrary to the trial judge’s ruling, since Fairley was subjected to cross-examination, I find inquiry into the original charge and ultimate guilty plea was a proper topic for examination. I also find it permissible to allow inquiry into these topics by either party during opening statement.

BARNES AND CARLTON, JJ., JOIN THIS OPINION.

      . White v. State, 616 So.2d 304, 307 (Miss.1993) (citing United States v. Medley, 913 F.2d 1248, 1257-58 (7th Cir.1990); United States v. Davis, 766 F.2d 1452, 1456 (10th Cir.1985); United States v. Wiesle, 542 F.2d 61, 62-63 (8th Cir.1976); People v. Brunner, 797 P.2d 788, 789 (Colo.Ct.App.1990); State v. Padgett, 410 N.W.2d 143, 146 (N.D.1987)); see also State v. Braxter, 568 A.2d 311, 316 (R.I.1990) (holding guilty plea of accomplice in trial of defendant on same charge admissible when introduced to impeach accomplice but inadmissible to demonstrate guilt of defendant).

      . While this case solely concerns the State's preemptive use of a co-defendant's plea agreement during opening statement, I see no legitimate prohibition against either the State or defendant mentioning an accomplice’s guilty plea during voir dire. The control of voir dire is largely left to the circuit court's discretion, and as long as the judge is agreeable, questions surrounding a co-defendant's guilty plea are fair game for both sides. Why should the defendant be restricted from eliciting from prospective jurors whether they are more likely to convict because a co-conspirator has plead guilty to the same charge? And in turn, the State should be permitted to inquire whether potential jurors would refuse to consider the testimony of a cooperating witness who testifies with the benefit of a plea agreement. Such inquiries focus on a central goal of voir dire — to uncover the prospective jurors’ bias or pre-conceived notions of guilt. A Missouri appellate court has recognized that "[sjuch voir dire questions are allowed as being relevant because, any time the State enters into a plea agreement with a witness, the issues of bias and self-interest arise, since plea agreements are 'double-edged swords' that 'not only support a witnesses] credibility by showing an interest to testify truthfully, but also impeach a witness'[s] credibility by showing an interest in testifying favorably for the government, regardless of the truth.’ " State v. Golatt, 81 S.W.3d 640, 645 (Mo.Ct.App.2002) (quoting State v. Dudley, 51 S.W.3d 44, 54 (Mo.Ct.App.2001)).


author: BARNES, J., RUSSELL, J.,

text:
    Gregory Eugene JANSSEN, Appellant v. Elizabeth Jane JANSSEN, Appellee.
    No. 2010-CA-01003-COA.
    Court of Appeals of Mississippi.
    March 20, 2012.
    Rehearing Denied July 31, 2012.

      Thomas E. Payne, attorney for appellant.
    Jack Parsons, Tadd Parsons, Wiggins, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. Elizabeth Jane Janssen (E.Jane) filed for divorce from her husband, Gregory Eugene Janssen (Greg) on August 4, 2000. Six years later, the Chancery Court of the First Judicial District of Harrison County entered a judgment of divorce and a division of marital assets. At issue in this appeal is an award of family heirlooms to E. Jane that allegedly were in the marital home where Greg still resided. After E. Jane’s attempts to procure the items were unsuccessful, E. Jane filed a citation for contempt against Greg on September 26, 2007. The chancery court ordered Greg to allow E. Jane access to the home to collect the items; however, when she went to the home, E. Jane could not locate the items. She filed another citation for contempt, and the chancellor found Greg to be in contempt of the court’s original orders and imposed thirty days of incarceration. The chancery court’s judgment also awarded E. Jane the replacement value of the items and attorneys’ fees. After reviewing Greg’s appeal of the chancellor’s judgment, we find no abuse of discretion by the chancellor and affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. E. Jane and Greg were married in 1981 and lived in Gulfport, Mississippi. The couple separated in 2000. E. Jane filed a complaint for divorce with the Harrison County Chancery Court on August 4, 2000. The couple briefly reconciled but separated permanently in 2003. E. Jane moved from the marital home with the couple’s minor teenage daughter, Erica. The couple have another child, a son, who is emancipated.

¶ 3. As no further action had been taken on E. Jane’s initial complaint for divorce, the Harrison County Chancery Clerk issued a motion to dismiss for want of prosecution on August 25, 2003. E. Jane filed an amended divorce complaint on March 2, 2004. In June 2005, Greg suffered a stroke, and in August 2005, Hurricane Katrina damaged the marital home.

¶ 4. On February 15, 2006, the chancery court granted the parties a divorce on the ground of irreconcilable differences. The chancellor awarded the marital home to Greg, and the couple’s farm in Perry County, Mississippi, was awarded to E. Jane. Pertinent to the issue on appeal, the chancellor also awarded E. Jane some personal family heirlooms that were still in the marital home. In the order, the chancellor noted that “Greg had no objection to [E. Jane] taking as hers those items that were Walker heirlooms, although there was no description of such items.”

¶ 5. On September 26, 2007, E. Jane filed a citation of contempt against Greg, claiming that he had violated the court’s order by not allowing her access to the marital home to collect her personal items and heirlooms. In a letter to Greg’s attorney dated January 16, 2008, E. Jane requested a date that she could “pick up her items from the house and the sooner the better.” Greg denied that E. Jane was not given access to the home and stated that he no longer possessed some of the items. E. Jane filed a second citation for contempt on March 6, 2009.

¶ 6. After a hearing, the chancery court entered a judgment of contempt against Greg on September 25, 2009, and ordered him to allow E. Jane access to home to retrieve the heirlooms. The chancellor also awarded E. Jane $1,000 for attorneys’ fees. The parties agreed that E. Jane would be allowed to enter the home on December 5, 2009, to retrieve the items at issue. However, when she was unable to locate the family heirlooms at the home, E. Jane filed a third citation of contempt on December 11, 2009, claiming that Greg had “destroyed, thrown away, and secreted away from her” the items. E. Jane sought incarceration of Greg for his contempt and requested reimbursement of the value of the personal property and attorneys’ fees.

¶ 7. Another hearing was held on April 23, 2010, and for the first time since the start of the proceedings, Greg testified that the items likely were destroyed in Hurricane Katrina. On May 25, 2010, the chancery court entered its judgment, finding that Greg’s deliberate conduct of preventing E. Jane from retrieving her items constituted contempt of the court’s previous judgments. The chancellor ordered Greg to be incarcerated for thirty days. E. Jane was awarded attorneys’ fees of $5,761.56 and replacement value of the items ($9,748.98), if they were not received within ten days from the entry of the judgment.

¶ 8. On appeal, we find that the chancellor did not abuse his discretion in finding Greg in contempt and in awarding damages and attorney’s fees. We affirm the judgment.

STANDARD OF REVIEW

¶ 9. Our review of a chancellor’s decision is limited. Pulliam v. Bowen, 54 So.3d 331, 334 (¶ 10) (Miss.Ct.App.2011) (citing Nichols v. Funderburk, 883 So.2d 554, 556 (¶ 7) (Miss.2004)). We will only reverse if “[t]he chancellor’s determinations ... were manifestly wrong, clearly erroneous, or when the chancellor applies an incorrect legal standard.” Id. A chancellor’s decision is reviewed for abuse of discretion; questions of law, however, are reviewed de novo. Tillman v. Mitchell, 73 So.3d 556, 558 (¶ 8) (Miss.Ct.App.2011) (citations omitted).

I. Whether the chancellor abused his discretion in finding that Greg was in contempt.

¶ 10. In his May 25, 2010 order, the chancellor found Greg in contempt for his attempts to prevent E. Jane from obtaining certain personal family heirlooms, and Greg was incarcerated for thirty days “for his willful and contumacious contempt of the Court’s judgment.” The chancellor stated: “Greg’s testimony does not square with the correspondence sent on his behalf. ... This Court finds that he has engaged in a course of conduct designed to thwart [E. Jane] Janssen’s retrieval of her personal property and family heirlooms.”

¶ 11. Whether to hold a party in contempt is subject to the discretion of the chancellor. Kelley v. Day, 965 So.2d 749, 756 (¶ 18) (Miss.Ct.App.2007) (quoting R.K. v. J.K., 946 So.2d 764, 777 (¶ 39) (Miss.2007)). “Contempt is an issue of fact to be decided on a case-by-case basis.” Id. The “[f]ailure to comply with a court order is prima facie evidence of contempt.” Evans v. Evans, 75 So.3d 1083, 1087 (¶ 14) (Miss.Ct.App.2011) (citing McIntosh v. Dep’t of Human Servs., 886 So.2d 721, 724 (¶ 11) (Miss.2004)). In order “[t]o rebut a prima facie case of contempt, a defendant must show ... ‘that performance was impossible.’” Id. (citation omitted). Greg argues that the chancellor abused his discretion by finding that Greg was in contempt as he did not possess the items at issue. Thus, Greg claims that he “did not comply because he could not comply.”

¶ 12. As both parties note on appeal, the chancellor charged Greg with constructive criminal contempt. Criminal contempt punishes “for disobedience of a court order ... and does not terminate upon compliance with the court order.” In re Williamson v. Miller, 838 So.2d 226, 237 (¶ 29) (Miss.2002) (citing Common Cause of Miss. v. Smith, 548 So.2d 412, 415-16 (Miss.1989)). A finding of constructive criminal contempt “punishes a party for noncompliant conduct outside the court’s presence.” Hanshaw v. Hanshaw, 55 So.3d 143, 147 (¶ 14) (Miss.2011) (citing Moulds v. Bradley, 791 So.2d 220, 224-25 (¶ 8) (Miss.2001)). Here, the term of incarceration was for a definite period of time and was punishment for Greg’s noncompliance with the court’s order. “[I]n criminal contempt matters, the court proceeds ab initio to determine whether the record proves the alleged contemnor guilty of contempt beyond a reasonable doubt.” Davis v. Davis, 17 So.3d 114, 120 (¶ 24) (Miss.Ct.App.2009) (citation omitted). “In constructive contempt matters, defendants are required to be given procedural due process safeguards, including a specification of charges, notice, and a hearing. Id. at 199-20 (¶ 23) (citation omitted).

¶ 13. At the hearing for the divorce and division of assets, Greg stated:

Q. Now, the heirlooms that’s in your home that came from the Walker family, do you want her to have them?
A. Yes.
Q. You have no objection to her picking them up whenever it’s convenience for her and yourself?
A. Yeah.
Q. Without any interference from you?
A. I can’t get into the attic.
Q. I’m sorry?
A. I can’t get into the attic. If she’s got anything up there, I can’t get to it.

In the February 15, 2006 order granting the divorce and equitable distribution of marital assets, the chancery court noted that “Greg had no objection to E. Jane taking as hers those items that were Walker heirlooms, although there was no description of those items.” The chancellor also concluded that Greg’s testimony was unreliable and not trustworthy, as Greg’s stroke caused confusion with memory and numbers.

¶ 14. On November 14, 2006, E. Jane sent Greg a list of personal items to be divided, which included items in the attic such as the “Marsh/Walker furniture and accessories.” E. Jane filed the citation for contempt on September 26, 2007, and sent an informal request to obtain a date to retrieve her items; Greg waited until August 20, 2008, to respond. In his response, he claimed that he “does not have some of the items that Petitioner requested, and Petitioner has had the opportunity to get the rest of the items.” At a hearing on May 11, 2009, Greg testified that E. Jane came to the home once, and the attic was “nailed shut,” presumably for safety reasons. When questioned, whether there was anything left on “E. Jane’s list” in the home after Hurricane Katrina, Greg merely stated, “Nothing.” However, E. Jane disputed that any damage to the attic was a result of Katrina, and she claimed that she was unable to look for the items.

Q. And every time that you were supposed to be authorized to go pick up your property, even after August of 2008, have your been permitted to do so?
A. No, I have not.
Q. Now, what prevented you from going to do it?
A. There was no one there at all, and no one answered the door. There were no vehicles there.

Furthermore, as the chancellor noted at the hearing, the judgment awarding the items was entered “post-Katrina.” Yet, Greg said nothing about the unavailability of the items in 2006.

¶ 15. Greg was given a hearing on April 23, 2010, to address the December 11, 2009 citation for contempt. It was not until this hearing that Greg claimed that the family heirlooms either were destroyed in Hurricane Katrina or lost in the subsequent clean-up. This was four years after he was ordered by the chancery court to provide E. Jane with the items. Further, Erica testified that she saw the items in 2007 when she went to the home to retrieve some of her personal belongings. E. Jane also stated that the items were there after Hurricane Katrina.

¶ 16. We find that the evidence showed, beyond a reasonable doubt, that Greg was not forthcoming with information regarding the status of the pertinent items during the entire course of the proceedings and that he was not cooperative in allowing E. Jane access to the items. Although E. Jane was awarded the heirlooms in 2006, she was unable to access the attic to search for the items until December 5, 2009. It was only at that point it became evident that the items were missing.

¶ 17. Accordingly, we find no abuse of discretion in the chancellor’s finding of contempt.

II. Whether the award of attorneys’ fees was excessive.

¶ 18. Greg contends that the award of attorneys’ fees in the May 25, 2010 order was excessive, since it was for E. Jane’s attorneys’ fees since 2007. The award of attorneys’ fees is “generally proper” if a party “is found in contempt of a previous judgment!.]” Day v. Day, 28 So.3d 672, 677 (¶ 23) (Miss.Ct.App.2010) (citing Newell v. Hinton, 556 So.2d 1037, 1043 (Miss.1990)). “[T]he purpose of an award of attorney’s fees is to compensate the prevailing party for losses sustained by reason of a defendant’s noncompliance with the judicial decree.” Jurney v. Jurney, 921 So.2d 372, 376 (¶ 14) (Miss.Ct.App.2005) (citing Hinds County Bd. of Supervisors v. Common Cause of Miss., 551 So.2d 107, 125 (Miss.1989)). “[W]here a party’s intentional misconduct causes the opposing party to expend time and money needlessly, then attorney fees and expenses should be awarded to the wronged party.” Corporate Mgmt., Inc. v. Greene County, 23 So.3d 454, 466 (¶ 34) (Miss.2009) (quoting Mabus v. Mabus, 910 So.2d 486, 489 (¶ 8) (Miss.2005)).

¶ 19. It does appear from the record that the attorneys’ fees awarded were for all charges incurred throughout the entire contempt proceedings, less the $1,000 already awarded in the September 2009 order. However, the fee statement was admitted into evidence at the April 23, 2010 hearing without any objection from Greg. While Greg’s attorney reserved the right to “voir dire” E. Jane’s attorney regarding the fee statement, he never did so. Therefore, we find that Greg has waived this issue on appeal. See Common v. Common, 42 So.3d 59, 62 (¶ 7) (Miss.Ct.App.2010).

¶ 20. Nonetheless, there was nothing to indicate that any of the attorneys’ fees were for any work unrelated to the contempt proceedings and the retrieval of these items. Furthermore, although Greg asserts that E. Jane provided no testimony that she was unable to pay the fees, this Court has held that “[a] specific finding of inability to pay is also not required when attorneys’ fees are assessed against a party found to be in contempt.” Dickerson v. Dickerson, 34 So.3d 637, 649 (¶ 50) (Miss.Ct.App.2010) (citing Mount v. Mount, 624 So.2d 1001, 1005 (Miss.1993)). We find no error in the award of attorneys’ fees to E. Jane.

III. Whether the award for replacement value was supported by credible evidence.

¶ 21. Greg contends that he paid E. Jane $18,500 under an agreed order (which was not presented to the chancery court until December 21, 2009) and that he was under the belief that this payment resolved all pending issues. Thus, he argues that she had no right to continue to “come after [him] for contempt over these items.” He further claims that the items “had only emotional value.”

¶ 22. Yet, in his Appellant’s brief, Greg admits that he “believed that the Agreed Order and lump sum payment resolved all pending contested issues; however, the retrieval of the remaining personal property that had yet to be identified and agreed upon by the parties remained outstanding according to the terms of the Agreed Order.” (Emphasis added).

¶23. At the May 11, 2009, and April 23, 2010 hearings, E. Jane submitted into evidence a list of the missing items with their respective values. At both hearings, Greg’s counsel objected to the evidence, arguing that no independent value of the items had been offered. However, “a party may testify as to the value of his or her own property.” Community Bank, Ellisville, Miss. v. Courtney, 884 So.2d 767, 774 (¶ 23) (Miss.2004) (citing Regency Nissan, Inc. v. Jenkins, 678 So.2d 95, 101 (Miss.1996)). “We have not indicated whether this estimate of value must be rationally based. Nor have we required any predicate other than that of ownership.” Id. at 774-75. At the May 2009 hearing, E. Jane testified:

Q. Have you looked at all the sources and then arrived on the value of the property on your own judgment, not relying on something else?
A. Yes, sir.
Q. And this is what you have come to believe and tell the court under your oath that your best interest, the value of that property would be at the time that you were entitled to it?
A. Yes, sir, that’s correct.

¶ 24. Additionally, Greg did not provide any evidence to controvert the value of the items. As this Court recently held:

The chancellors of this state are not responsible for the evidence that is presented at trial.[I]t 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.

Cox v. Cox, 61 So.3d 927, 937-38 (¶ 32) (Miss.Ct.App.2011) (quoting Irby v. Estate of Irby, 7 So.3d 223, 225 (¶ 38) (Miss.2009)).

¶ 25. Accordingly, we find that there was credible evidence to support the award of replacement value for the missing items. This issue is without merit.

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

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

RUSSELL, J.,

dissenting:

¶ 27. The majority affirms the chancellor’s judgment of criminal contempt against Greg because he was “not forthcoming with information regarding the status” of E. Jane’s heirlooms. The majority further found, as did the chancellor, that criminal contempt was proven beyond a reasonable doubt. In my view, the chancellor abused his discretion in holding Greg in criminal contempt, ordering him incarcerated for thirty days, and requiring him to pay the replacement value of the heirlooms. Therefore, I would reverse the judgment of contempt.

¶ 28. We review cases of criminal contempt ab initio. In re Smith, 926 So.2d 878, 885 (¶ 9) (Miss.2006). This Court proceeds ab initio to “determine whether the record proves the appellant guilty of contempt beyond a reasonable doubt.” Dennis v. Dennis, 824 So.2d 604, 608 (¶ 7) (Miss.2002).

¶ 29. “A citation of contempt is proper when ‘the contemnor has willfully and deliberately ignored the order or the court.’ ” Westerburg v. Westerburg, 853 So.2d 826, 828 (¶ 6) (Miss.Ct.App.2003) (quoting Bredemeier v. Jackson, 689 So.2d 770, 777 (Miss.1997)) (emphasis added). Our supreme court has explained the difference between civil contempt and criminal contempt as follows:

If the purpose of the proceedings is to coerce action or non-action by a party, the order of contempt is characterized as civil. This type [of] contempt proceeding is ordinarily instituted by one of the parties to the litigation who seeks to coerce another party to perform or cease performing an act. The order of contempt is entered by the court for the private benefit of the offended party. Such orders, although imposing a jail sentence, classically provide for termination of the contemnor’s sentence upon purging himself of contempt. The sentence is usually indefinite and not for [a] fixed term. Consequently, it is said that the contemnor “carries the key to his cell in his own pocket.” On the other hand, a criminal contempt proceeding is maintained solely and simply to vindicate the authority of the court or to punish otherwise for conduct offensive to the public in violation of an order of the court.

Moulds v. Bradley, 791 So.2d 220, 224 (¶ 6) (Miss.2001) (quoting Newell v. Hinton, 556 So.2d 1037, 1044 (Miss.1990)). In other words, “[i]f the primary purpose is to enforce the rights of private party litigants or to enforce compliance with a court order, the contempt is civil.” Purvis v. Purvis, 657 So.2d 794, 796 (Miss.1994). In cases of civil contempt, “[o]ne may be jailed or fined for civil contempt, however, the contemnor must be relieved of the penalty when he performs the required act.” Id. at 796-97. In contrast, “[c]rimi-nal contempt penalties are designed to punish for past offenses and they do not end when the contemnor has complied with the court order.” Id. at 797. Constructive criminal contempt “involves actions which are committed outside the presence of the court.” Moulds, 791 So.2d at 225 (¶ 8).

¶ 30. In Scroggins v. Riley, 758 So.2d 467, 472 (¶ 20) (Miss.Ct.App.2000), a divorced wife sought to have her former husband held in contempt for failing to provide certain items of personal property, but the chancellor declined to do so. The chancellor noted that the “form of the contempt sought by [the former wife was] criminal in nature since she [sought] to punish [her former husband] for either negligently permitting or willfully causing her property to be damaged while in his safekeeping.” Id. at 473 (¶ 23). However, the former wife “failed to present any evidence that [he] wilfully damaged her property, nor was there sufficient evidence that he negligently permitted her property to suffer damage while it was in his control after the judgment of divorce.” Id. Because there was “no evidence of any negligence or want of care on [his] part in the time after entry of the divorce judgment[,]” a finding of contempt would have been improper. Id. Therefore, this Court affirmed the chancellor’s denial of contempt. Id.

¶ 31. In the instant case, there was reasonable doubt as to whether Greg’s actions were willful and deliberate as required to be held in contempt. See id; see also Westerburg, 853 So.2d at 828 (¶ 6). The record reflects that Greg suffered three strokes in the year immediately preceding the divorce. The chancellor noted this fact in the judgment of divorce:

As a preliminary matter, the court notes that Greg suffered a stroke in June, 2005. Since that date, he has remained totally disabled up through the date of trial. At trial, counsel for Greg examined him as to his ability to act on his own behalf without the appointment of a conservator. There was no medical testimony that Greg was incapable of acting on his own behalf. As Exhibit 6, a weekly income benefits claim form from Grey’s employer was introduced, which showed a diagnosis of a cerebral vascular accident with right weakness occurring on or about June 16, 2005, releasing him to partial duties on August 17, 2005. Those records further note that this was his third CVA in the past year. He demonstrated “mild confusion” on his functional capacity assessment. The assessment noted speech difficulty which was being treated elsewhere. There was no additional medical proof. Based upon the demonstrated ability to respond to questions, the court allowed the matter to continue. The court notes that Greg is not reliable in his testimony. His memory is faulty. Regarding his 8.05, he was hopelessly confused as to numbers and amounts. At best, he was not deceptive, but he was not reliable. Needless to say, the court, having observed his demeanor, is of the opinion that he is not trustworthy.

(Emphasis added). At the divorce hearing, Greg testified how the strokes have adversely affected his memory, his ability to put thoughts into words, his ability to write, his ability to walk, and his ability to explain himself. He was also forced to retire from truck driving due to his stroke, and he was receiving — and continues to receive — disability income. At the subsequent contempt hearing, it was evident that Greg was still having problems explaining himself. The chancellor even stopped Greg’s testimony and stated he was “concerned about whether or not we need to have a conservator set up [for Greg] and proceed from that point[,]” but the chancellor allowed Greg to continue. In my view, the chancellor abused his discretion in holding Greg in criminal contempt because Greg was clearly suffering from several problems due to the three strokes he suffered in the year immediately preceding the parties’ divorce.

¶ 32. Furthermore, Greg also had a valid defense of impossibility. “Impossibility of performance of a court directive due to circumstances beyond the control of the alleged contemnor is a perfect defense to a contempt citation.” Ewing v. Ewing, 749 So.2d 223, 225 (¶ 7) (Miss.Ct.App.1999). In Ewing, the husband was awarded two jet skis, which the wife failed to turn over to the husband. Id. at 223-24 (¶¶ 2-3). The wife alleged that the jet skis were stolen, and as such, she was unable to comply with the provisions of the judgment of divorce. Id. at 224 (¶ 3). Nevertheless, the chancellor held the wife in contempt, and wife appealed. Id. at 223 (¶ 1). On appeal, this Court reversed the judgment of contempt, finding that the chancellor was not free to simply disregard the wife’s evidence that the skis were stolen from her because if “the skis were actually stolen, then [the wife] simply cannot be in contempt for her failure to accomplish an- act that was impossible to perform for reasons beyond her control.” Id. at 225 (¶ 8).

¶ 33. Likewise, in the case before us, Greg repeatedly testified that he did not know where the items were, that they were destroyed by Katrina, or that he simply did not have the items. Greg testified at the divorce hearing as follows:

Q: Now, the heirlooms that’s in your home that came from the Walker family, do you want her to have them?
A: Yes.
Q: You have no objection to her picking them up whenever it’s convenient for her and yourself?
A: Yeah.
Q: Without any interference from you?
A: I can’t get in the attic.
Q: I’m sorry?
A: I can’t get in the attic. If she’s got anything up there, I can’t get to it.

(Emphasis added). Thus, Greg never testified that he was in possession of the heirlooms. He merely stated that “if’ the heirlooms were in the attic, he could not get to them. At the subsequent contempt hearing, Greg testified that he did not have E. Jane’s property:

Q: Okay. Let me ask you this. What, if anything, was left of Ejane’s list in your home after the hurricane?
A: Nothing.
Q: Are you hiding any property of your wife’s?
A: No, sir.
Q: Okay. Are you intentionally telling this court anything that’s not true?
A: No.

Additionally, the parties’ son, Eric, testified that the entire roof was damaged from Katrina, and that nothing was in the attic when he helped his father with repairs shortly after the storm. Thus, if heirlooms were actually destroyed or lost in Katrina, then Greg cannot be in contempt for his failure to accomplish an act that was impossible to perform for reasons beyond his control. See id. Further, if the items were destroyed by Katrina as stated by Greg and Eric, Greg’s actions could not have been deliberate or willful. See Westerburg, 853 So.2d at 828 (¶ 6).

¶ 34. Finally, I note that the daughter, who did not get along with her father, testified she saw E. Jane’s property in the attic in the summer of 2007, over a year after the parties were divorced on February 15, 2006 and after the 2005 roof damage by Katrina. E. Jane testified that she personally had been over to Greg’s house post-Katrina approximately twenty (20) different times to do laundry, yet she admitted she never took the heirloom property. It is troublesome that she waited until September of 2007, a year and a half following the divorce, to file a complaint for contempt concerning the heirlooms. E. Jane provided no explanation why she did not retrieve her heirloom on her many visits to the house or why she waited so long to file for contempt.

¶ 35. In summary, I find that the criminal contempt was not proven beyond a reasonable doubt. In my view, because Greg’s actions did not rise to the level of deliberate or willful, I find that the chancellor abused his discretion in holding Greg in criminal contempt. Therefore, I would reverse the judgment of criminal contempt against Greg.

IRVING, P.J., JOINS THIS OPINION.