text:
    In the Matter of the ESTATE OF Justin Michael SMITH, Deceased: Halley Smith, A Minor By and Through Her Mother Holly Smith v. Payln Mae SMITH, A Minor by and Through Her Mother and Next Friend, Amy ROLLINS.
    No. 2012-CA-01895-SCT.
    Supreme Court of Mississippi.
    Jan. 23, 2014.

      Bradley Russell Boerner, attorney for appellant.
    Steven Hiser Funderburg, Jackson, attorney for appellee.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Following a final order from the Chancery Court of Lincoln County that Halley Smith is not a wrongful-death beneficiary of Justin Smith, Halley appeals and asks this Court to judicially declare that an in loco parentis child qualifies as a wrongful-death beneficiary under Mississippi Code Section 11-7-13. Halley argues that “[pjublic policy and the best interests of Mississippi children demand that in loco parentis children should be included as wrongful death beneficiaries of their psue-do-parent.” Finding that an in loco par-entis child does not qualify as a wrongful-death beneficiary, we affirm the trial court’s judgment.

FACTUAL BACKGROUND

¶ 2. Justin Michael Smith, the decedent, married Holly Kyzar Smith in October 2000. Two months later, Holly gave birth to Halley Ellas Smith. Justin signed the birth certificate as Halley’s father. For eight years, Justin supported Halley financially and actively participated in Halley’s life. Justin also claimed Halley as a dependent on his tax returns for seven years. Halley lived with Justin and Holly for almost eight years.

¶ 3. Holly and Justin separated in 2007, and a complaint for divorce was filed. Unbeknownst to Holly, Justin sought a DNA test which established that Justin was not Halley’s father. Holly questioned the results. As a part of the divorce proceeding, a subsequent DNA test was ordered on September 25, 2008, that confirmed that Justin was not Halley’s biological father. Separately, an additional DNA test on February 5, 2009 established that Joseph Montgomery, not Justin, was Halley’s biological father. Thereafter, Justin’s name was removed from Halley’s birth certificate, and Montgomery was listed as Halley’s biological father. Montgomery also was awarded visitation rights and ordered to pay child support. Justin died on July 19, 2009. At the time of his death, divorce had not been granted.

¶ 4. Holly was appointed administratrix of Justin’s estate in January of 2010. Holly filed a petition to establish heirship, naming herself and only Payln Mae Smith, Justin’s natural daughter, as Justin’s known heirs. Holly made no claim that Halley was an heir of Justin. The chancery court, on April 6, 2010, entered an order, at Holly’s behest, declaring that Holly and Payln were the sole heirs.

¶ 5. On September 22, 2011, Holly filed a Petition For Authority To Settle Doubtful Claims, on behalf of Palyn. The chancery court approved the settlement and directed the distribution of funds equally to Holly, individually, and Holly, as guardian of Palyn. On the very same day, without serving the parties the court had authorized to be released, Holly filed a Petition For Reconsideration Of Heirship Determination, stating that “[a]n issue has now arisen as to whether Halley Ellas Smith, a minor, is also an heir-at-law of decedent Justin Michael Smith. Specifically, Halley Ellas Smith was born on December 29, 2000, during the marriage of the Decedent and Holly Kyzar Smith (Petitioner), and was treated as the daughter of Justin Michael Smith.” Holly’s act of filing the petition for reconsideration after soliciting and obtaining authority to settle outstanding claims raises a host of other issues, as raised by the released parties, who intervened. However, as the trial court did not address these issues, and as its ruling was otherwise dispositive, neither shall we. We examine only the judgments before us. The Court order under attack and presented to the trial court for reconsideration was the April 6, 2010, decree in which Holly and Palyn were declared to be Justin’s sole heirs-at-law.

¶ 6. After the court appointed a guardian ad litem to represent Halley, Halley’s guardian ad litem also filed a motion to reconsider the heirship determination of April 6, claiming that “Halley Smith is the in loco parentis child of Justin Smith, deceased, and should be adjudicated to be one of his heirs at law and wrongful death beneficiaries.... ” Subsequently, the chancery court held a hearing on the motions and entered an order finding that:

Halley is the in loco parentis daughter of Justin Smith; ... Halley is not the biological daughter of Justin Smith, as the presumption of paternity has effectively been rebutted; ... an in loco parentis child of a deceased individual does not stand as a wrongful death beneficiary of that deceased individual; therefore, Halley is not a wrongful death beneficiary of Justin.

¶ 7. Halley then filed another motion to reconsider the order denying reconsideration of the April 6 order, which the chancellor denied. In her appeal, she claims that “in loco parentis children should be included as wrongful-death beneficiaries of their pseudo-parent.” The parties do not contest the chancellor’s determination that Halley was an in loco parentis child of Justin. Instead, Halley invites this Court to judicially amend the wrongful-death statute to include in loco children as persons entitled to recover under Section 11-7-18. We decline.

STANDARD OF REVIEW

¶ 8. The issue before the Court is whether an in loco parentis child qualifies as a wrongful-death beneficiary under Mississippi’s wrongful-death statute. Because this is an appeal from chancery court on an interpretation of a statute, the standard of review is de novo. Miss. Dep’t of Transp. v. Allred, 928 So.2d 152, 154 (Miss.2006).

DISCUSSION

¶ 9. This Court has recognized the doctrine of in loco parentis for more than a century. Fortinberry v. Holmes, 89 Miss. 373, 42 So. 799, 799 (1907). Specifically, the doctrine is defined as follows:

A person in loco parentis may be defined as one who has assumed the status and obligations of a parent without a formal adoption. The rights, duties and liabilities of one standing in loco parentis are the same as those of a natural parent. Whether the relationship exists is a matter of intention and of fact to be deduced ■ from the circumstances of the particular case.

Farve v. Medders, 241 Miss. 75, 128 So.2d 877, 879 (1961).

¶ 10. In short, Halley is not a wrongful-death beneficiary because she is not Justin’s child, as defined in Mississippi Code Section 11-7-13. See Miss.Code Ann. § 11-7-13 (Rev.2004). We strictly construe Section 11-7-13. Smith v. Garrett, 287 So.2d 258, 260 (Miss.1973). Moreover, this Court lacks the power to expand the definition of “child.” See Burley v. Douglas, 26 So.3d 1013, 1020 (Miss.2009). The relevant part of the statute is as follows:

... Damages for the injury and death of a married man shall be equally distributed to his wife and children .... The provisions of this section shall apply to illegitimate children on account of the death of the natural father and to the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15.
Any rights which a blood parent or parents may have under this section are hereby conferred upon and vested in an adopting parent or adopting parents surviving their deceased adopted child, just as if the child were theirs by the full-blood and had been born to the adopting parents in lawful wedlock.

Miss.Code Ann. § 11-7-13 (Rev.2004) (emphasis added). In addition to covering natural children, the statute includes express language that brings both adopted children and illegitimate children within the purview of “children.” The statute is silent as to in loco children. Since this Court must strictly construe the statute, we find that in loco children do not fall within the definition of children in Mississippi’s wrongful-death statute.

¶ 11. Halley argues that in loco children should be treated as adoptive children and points out that adoptive children may inherit from both their natural and adoptive parents. Although adoptive children may inherit from both their natural and adoptive parents, the same privileges do not extend to in loco children. Adoption is a legal process with specific formalities that create a new parent-child relationship, as opposed to an in loco parentis relationship, which lacks the formalities of adoption. See Deborah Bell, Mississippi Family Law § 17 (1st ed.2005). Of prime importance, the rights of the biological parents must be terminated as a prerequisite to adoption. Id. This did not occur in the case sub judice. Montgomery, the natural father, did not terminate his parental rights to Halley. Far from it, he pays child support and has visitation rights with Halley. Thus, Halley is not an adoptive child.

¶ 12. Halley also urges this Court to follow the workers’ compensation statute and the Longshoremen’s and Harbor Workers’ Compensation Act. This Court found in loco children as proper beneficiaries under the workers’ compensation statute. However, the Workers’ Compensation statute provides express language that covers in loco children. Longleaf Forest Prods., Inc. v. Hopkins, 349 So.2d 523, 525 (Miss.1977). Likewise, the court in Ryaiu-Walsh allowed an in loco child to recover based on similar express language in the Longshoremen’s and Harbor Workers’ Compensation Act. Ryam-Walsh Stevedoring Co., Inc. v. Trainer, 601 F.2d 1306, 1318 (5th Cir.1979). As discussed supra, Mississippi’s wrongful-death statute lacks such language.

¶ 13. Finally, Halley points to statutes and opinions from other states to support allowing in loco children to recover as wrongful-death beneficiaries. The Ohio Supreme Court did allow an in loco child to recover as a wrongful-death beneficiary. Lawson v. Atwood, 42 Ohio St.3d 69, 536 N.E.2d 1167, 1170 (1989). However, the Ohio court further ruled that such a claim can survive only if “the natural parents of the child have disclaimed or abandoned parental rights to the child.” Id. No abandonment occurred here. Finally, both Arkansas and Delaware include in loco relationships within the express definition of wrongful-death beneficiaries, unlike the statute in the present case.

¶ 14. The dissent revisits an alternative argument filed in the trial court by Halley, but not advanced before this Court on appeal. The only issue presented on appeal was whether “[a]n In Loco Parentis child is a wrongful death beneficiary.” Halley, in the second sentence of her brief, states “[t]he child was correctly found to be the in loco parentis child of [Justin].” The parties acknowledge that Halley was not the child of Justin. Based on the record, at least three separate DNA tests performed before Justin’s death established that Justin was not Halley’s father. Both a DNA test showing a 99.997 percent likelihood that Montgomery was Halley’s father, and a DNA test showing a 0.0 percent chance that Justin was Halley’s father were filed in' Lincoln County. Holly also offered sworn testimony that Holly, Justin, and Montgomery all knew that Justin was not Halley’s father prior to his death and she did not ask the chancery court to have Hailey considered an heir, “since Justin was shown not to be [Halley’s] biological father.... I just assumed [Halley] would not be entitled to any financial money.”

¶ 15. “[DNA] test results may rebut the presumption of legitimacy.” Rafferty v. Perkins, 757 So.2d 992, 995 (Miss.2000). “Mississippi law provides that if the probability of paternity ... is 98% or greater, there is a rebuttable presumption of paternity.” In re B.N.N., 928 So.2d 197, 200 (Miss.Ct.App.2006); See Miss.Code. Ann. § 93-9-27 (Rev.2013). “Where scientific evidence points overwhelmingly towards one man as the father of a child, paternity is established; the only matter left to resolve in the paternity action is that of support.” Griffith v. Pell, 881 So.2d 227, 230-31 (Miss.Ct.App.2003) (citing Rafferty, 757 So.2d at 996). Earlier paternity orders “may be vacated once DNA testing establishes someone other than the named individual is the child’s biological father.” Griffith v. Pell, 881 So.2d 227, 231 (Miss.Ct.App.2003) (citing M.A.S. v. Miss. Dep’t of Human Servs., 842 So.2d 527, 531 (Miss.2003)). Considering the unequivocal evidence before the chancellor, it cannot be fairly argued that the learned chancellor erred in finding that the presumption of paternity had been rebutted, nor that Halley is a person entitled to recover under the Section 11-7-13.

¶ 16. The dissent cites a descent and distribution case, Hogan, which presents issues entirely different than those before us today and opines that “our laws of descent and distribution hold that Halley’s legal status at the time of Justin’s death would determine whether she was a wrongful death beneficiary.” However, it is “incorrect as a matter of law” to consider descent and distribution cases or statutes governing descent and distribution when considering a wrongful-death case. Ray v. Ray, 963 So.2d 20, 26 (Miss.Ct.App.2007) (finding that the “relatives” position regarding the laws of intestacy regarding descent and distribution is incorrect as a matter of law because the proper course of determining the wrongful death beneficiaries ... necessarily involves a reading of the wrongful death beneficiary statute.”) “A wrongful death action is a separate action from the estate of the deceased, therefore, the beneficiaries of a wrongful death action for the death of the decedent may differ from the heirs of the intestate’s estate.” Ray v. Ray, 968 So.2d 20, 26 (Miss.Ct.App.2007). Assuming arguendo that this Court considers descent and distribution statutes, Halley is the illegitimate child of Montgomery, not Justin. Thus, Section 91—1—15(3)(b) of the Mississippi Code and Hogan both are inapplicable.

¶ 17. The “determinative issue” in Hogan, as identified by the dissent, “was whether a prior judgment establishing paternity could ‘bind the estate pursuant to the plain language of Miss.Code. Ann § 91-1-15(3)(b) (1994)’” (Diss.Op-¶23) (emphasis added). However, Section 91-1-15 prescribes only how illegitimate children can recover from their natural parents, which does not apply to the facts of the case sub judice. See Miss.Code Ann. § 91—1—15(1)(c) (Rev.2013). An “illegitimate ” child is defined in Section 91-1-15 as “a person who at the time of his birth was born to natural parents not married to each other and not legitimized ... through a proper judicial proceeding.” Miss.Code Ann. § 91—1—15(1)(c) (Rev.2013) (emphasis added). Quite the opposite, Halley was born into a marriage to a father who was not her natural father. “Natural” father is defined as the biological father. Miss.Code Ann. § 91—1—15(1)(d) (Rev.2013). Justin does not fit the statutory definition of “natural father” as used in Section 91-1-15, nor does Halley, in relation to Justin, meet the definition of “illegitimate” child as defined in the statute. Instead, Halley, as defined in Section 91-1-15, is the illegitimate child of Montgomery. Therefore, Section 91-1-15 can only provide an avenue for Halley to recover from Montgomery, an issue not before this Court today. Moreover, the holding in Hogan was that “the language of § 91 — 1—15(3)(b) makes clear that an illegitimate inherits from the kindred of his natural father where, as in the present case, there has been a prior adjudication of paternity.” Hogan, 730 So.2d at 20 (emphasis added). Thus, neither Section 91-1-15 nor the holding of Hogan provides for Halley to inherit from Justin.

¶ 18. Neither doés Burley support the dissent’s position. Burley v. Douglas, 26 So.3d 1013, 1015, 1023-24 (Miss.2009). Burley addressed only the issue of standing to bring a wrongful-death claim, not the ability to recover wrongful-death benefits. Burley v. Douglas, 26 So.3d 1013, 1015 (Miss.2009). While Burley recognized the petitioner as a wrongful-death claimant and an interested party “because of his qualification as an heir-at-law,” Bur-ley also declared that the petitioner’s heir-in-law status did not equate to recovery as a wrongful-death beneficiary. Id. at 1021-23 (“Our holding today recognizes the statutory distinction between a party’s authority to bring a wrongful-death action and the party’s ability to recover damages from it.). The Burley court further held that the petitioner’s “ability to recover damages ... is a separate question,” from standing. Id. at 1023 (“Burley’s ability, or lack thereof, to seek and/or recover certain damages ... does not determine the character of his standing as a particular type of wrongful-death claimant.”) (emphasis added).

CONCLUSION

¶ 19. Because Mississippi Code Section 11-7-13 does not provide a cause of action for in loco children, we affirm the trial court’s determination that Halley is not a wrongful-death beneficiary of Justin.

¶ 20. AFFIRMED.

WALLER, C.J., DICKINSON, P.J., CHANDLER AND PIERCE, JJ., CONCUR. LAMAR AND COLEMAN, JJ., CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LAMAR, KING AND COLEMAN, JJ.

KITCHENS, Justice,

dissenting:

¶ 21. I agree that, when a person stands in loco parentis to a child, the child does not automatically become a wrongful death beneficiary upon that person’s death. See Miss.Code Ann. § 11-7-13 (Rev.2004). However, there was no dispute that Justin was Halley’s presumed father or that there had been several separate judicial proceedings in which Justin was recognized as Halley’s legal father. There is no court order before us that disestablished Justin’s paternity prior to his death; and, based on our jurisprudence, the post-mor-tem judicial determination that Montgomery was Halley’s biological father would not have dissolved Justin and Halley’s legally recognized parent-child relationship that existed during Justin’s lifetime, notwithstanding some testimony suggesting that Justin’s parental rights and obligations may have been suspended during the divorce proceedings. Because Halley’s status as Justin’s legal child, and thus her status as a wrongful death beneficiary, requires consideration of relevant matters not in the record, the issue before us cannot be resolved on appeal. Therefore, I respectfully dissent, and would reverse the judgment and remand the case for further proceedings with directions to determine whether the prior adjudications of paternity still were in effect at the time of Justin’s death.

¶ 22. The issue on appeal has been framed as “whether an in loco parentis child qualifies as a wrongful-death beneficiary.” However, the doctrine of in loco parentis does not apply when there is a legally recognized parent. See Farve v. Medders, 241 Miss. 75, 128 So.2d 877 (1961). The majority points out that “at least three separate DNA tests performed before Justin’s death established that Justin was not Halley’s father. Both a DNA test showing a 99.997 percent likelihood that Montgomery was Halley’s father, and a DNA test showing a 0.0 percent chance that Justin was Halley’s father were filed in Lincoln County.” Maj. Op. ¶ 14. The majority thus concluded, “it cannot be fairly argued that the learned chancellor erred in finding that the presumption of paternity had been rebutted_” Maj. Op. ¶ 15. But Montgomery filed a petition to establish paternity more than a month after Justin’s death. The parties entered an agreed order in this separate action ten months after Justin’s death. Halley’s mother agreed to the order which established Montgomery as Halley’s natural father and awarded Montgomery joint custody and visitation. Justin’s estate was not a party to that action, and the order did not make reference to. Justin. Even so, the order would not have disestablished paternity for the deceased, legal father, which appears to have been Justin’s status, as related to Halley, at the time he died.

¶ 23. In Hogan v. Buckingham ex rel. Buckingham, 730 So.2d 15 (Miss.1998), the Court addressed this very issue: whether a prior adjudication of paternity could be challenged in heirship proceedings related to distribution of settlement funds for a wrongful death claim. In Hogan, 730 So.2d at 16-17, the administratrix filed a complaint for wrongful death, and after a settlement was reached, the admin-istratrix filed a petition for determination of the wrongful death beneficiaries. The administratrix requested DNA testing to establish the paternity of two alleged beneficiaries, but the chancellor denied the requests. Id. at 17. On appeal, this Court noted that the determinative issue was whether a prior judgment establishing paternity could “bind[ ] the estate pursuant to the plain language of Miss.Code Ann. § 91 — 1—15(3)(b) (1994).” Id. at 20 n. 1. The statute since has been amended, but Section 91 — 1—15(3)(b) has remained the same:

An illegitimate shall inherit from and through the illegitimate’s natural father and his kindred, and the natural father of an illegitimate and his kindred shall inherit from and through the illegitimate according to the statutes of descent and distribution if:
(b) There has been an adjudication of paternity or legitimacy before the death of the intestate[.]

Miss.Code Ann. § 91—1—15(3)(b) (Rev. 2013). In a nearly unanimous opinion, the Court affirmed the chancellor’s denial of DNA testing, holding that “the defendants had already been determined to be the heirs of [the decedent] as a matter of law.” Hogan, 730 So.2d at 20. The opinion further noted that it was of no consequence that paternity had been established by means of two default judgments in unrelated support proceedings. Id. Those prior judgments were found to be controlling.

¶ 24. As in Hogan, the parties do not dispute that several court orders established Halley as Justin’s daughter, and no court order in the record disestablishes Justin’s paternity of Halley, either before or after Justin’s death. In the absence of an adjudication otherwise, Halley was Justin’s daughter at the time of his death and thus his wrongful death beneficiary. The proceedings to establish Montgomery as Halley’s biological father would not have affected her status as an heir, for the relationship with which we ultimately are concerned is the legal relationship of Halley and Justin at and before the time of Justin’s death. The laws governing descent and distribution provide procedures by which paternity of an illegitimate child may be established after death. See Miss. Code Anri. § 91-1-15 (Rev.2013). However, those laws do not contemplate a procedure to disestablish paternity posthumously-

¶ 25. The majority notes that Justin’s name was removed from Halley’s birth certificate and replaced with Montgomery’s name, and that Montgomery was awarded visitation and ordered to pay child support. Yet these actions did not occur until after Justin’s death. The majority also implies that Justin could have adopted Halley; but, adoption proceedings would have been superfluous, because Justin was Halley’s legally recognized father. Nevertheless, some testimony indicated that Justin’s visitation rights and support obligations had been suspended during the divorce proceedings, even though it appears that no ruling had been made regarding the results of a paternity test. Because the record does not indicate why, or whether, there was an order in the divorce proceedings related to Justin’s parental rights and obligations, we cannot know whether the prior adjudications of paternity still were in effect when he departed this life. If these adjudications were undisturbed, Halley is a wrongful death beneficiary as a matter of law.

¶ 26. Further, the majority asserts that Hogan and Section 91 — 1—15(3)(b) are inapplicable, because only the wrongful death statute, not the descent and distribution statutes, applies. For this proposition, the majority cites Ray v. Ray, 963 So.2d 20, 26 (Miss.Ct.App.2007), from the Mississippi Court of Appeals, which did in fact hold that “it is ‘incorrect as a matter of law1 to consider descent and distribution cases or statutes governing descent and distribution when considering a wrongful death case.” The Court of Appeals continued, without citation, that “[a] wrongful death action is a separate action from the estate of the deceased, therefore, the beneficiaries of a wrongful death action for the death of the decedent may differ from the heirs of the intestate’s estate.” Id. Hogan belies this notion, and this Court has observed that “[t]he heirs at law under our law of descent and distribution are the same as the wrongful death beneficiaries.” Long v. McKinney, 897 So.2d 160, 186 n. 10 (Miss.2004).

¶ 27. The majority further opines that our application of Hogan to the present case is misplaced, since “Halley was born into a marriage to a father who was not her natural father,” which Mississippi Code Section 91 — 1—15(d) defines as “the biological father.” Maj. Op. ¶ 17. Justin and Holly were married at the time of the birth of Halley — and, indeed, at the time of Justin’s death. Thus, Justin may have been her legal father at that time. Likewise, at the time of Justin’s death, Halley may have been his legal child, notwithstanding any biological determination otherwise. If Halley was the legal child of Justin at the time of his death, she is entitled to benefit from the wrongful death proceeds. Again, I do not argue that Halley unequivocally is entitled to benefit from the wrongful death proceeds; I merely state the need for an examination of the existence and content of any judicial determinations of Halley’s status prior to Justin’s death. If a determination was made that Halley was not legally Justin’s child at the time of his death, then she may not be entitled to the proceeds of the wrongful death settlement. But such an examination is, nevertheless, a necessity. ¶ 28. “Statutory language ... ‘cannot be construed in a vacuum.’ ” Roberts v. Sea-Land, — U.S.-,-, 132 S.Ct. 1850, 1357, 182 L.Ed.2d 341 (2012) (citing Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989)). In Burley v. Douglas, this Court held that Burley was a proper wrongful death claimant and an interested party for purposes of standing where, “under our laws of intestate descent and distribution, he would have been entitled to inherit property” from his deceased daughter and grandchildren at the moment of their deaths. Burley v. Douglas, 26 So.3d 1013, 1021 (2009) (citing Miss.Code Ann. §§ 91-1-1 to -31 (Rev.2004)). Following the reasoning of Burley, if Halley legally was Justin’s child at the moment of Justin’s death, she was his wrongful death beneficiary. But we cannot know what Halley’s legal status was at the time of Justin’s death without examination of the prior chancery adjudications and a determination of whether those prior adjudications were in effect and binding at the moment of Justin’s demise.

¶ 29. The majority criticizes our use of Burley, noting its recognition of “the statutory distinction between a party’s authority to bring a wrongful-death action and the party’s ability to recover damages from it.” Burley, 26 So.3d at 1021-23. But the concepts of standing to bring suit and entitlement to damages are not mutually exclusive, as Burley recognizes. Id. at 1021. Although Burley does state that “a ‘statutory heir’ does not necessarily qualify as a ‘listed relative’ under Mississippi’s wrongful-death statute,” a “person who qualifies as a ‘statutory heir’ is one who is eligible to inherit from the decedent under our intestate descent and distribution statutes, and who therefore may be adjudicated by the chancery court as an heir-at-law of the decedent.” Id. at n. 8 (citing Miss. Code Ann. §§ 91-1-1 to -31 (Rev.2004); § 11-7-13 (Rev.2004)). Again, if at the time of Justin’s death, Halley was legally his daughter, then she is entitled to recover damages pursuant to the wrongful death statute, by virtue of the descent and distribution statute. While the majority manifests apparent comfort in assuming Halley’s status at the time of Justin’s death, I urge a judicial determination of what her status actually was before this Court decides whether the benefit of wrongful death damages should or should not inure to her.

¶ 30. The circumstances of this case are unusual. But peculiar fact patterns do not diminish the relationship between our laws of descent and distribution and our wrongful death jurisprudence, which must be considered together when our courts undertake the legal determination of a decedent’s wrongful death beneficiaries. Hogan, 730 So.2d at 19-20. In this case, the chancellor found that the presumption of paternity had been rebutted, and that Justin simply had stood in loco parentis to Halley. Yet, there was more than a presumption in this case, for Justin’s paternity of Halley may have been established as a matter of law. In the absence of a contrary judicial determination while Justin was alive, Halley is a wrongful death beneficiary of Justin Michael Smith, deceased. Given the omissions from the record, I would reverse the judgment and remand the case for the chancellor to examine these prior adjudications to determine whether they still were binding at the time of Justin’s death. For these reasons, I respectfully dissent.

LAMAR, KING AND COLEMAN, JJ., JOIN THIS OPINION.

      . Appellant’s Brief at 2.

      . On September 25, 2008, Justin and Holly entered an agreed order for new paternity testing. On October 13, 2008, they filed with the court a Genetic Test Report "where Justin was found to have 0% probability of paternity of Halley.”

      .The February 5, 2009, DNA test established a 99.997% probability that Joseph Montgomery was the father of Halley.

      . Halley concedes in her brief that “[t]he child was correctly found to be the in loco parentis child of [Justin].” (Appellant’s Brief at 2).

      . Alack v. Phelps, 230 So.2d 789, 793 (Miss.1970) ("We think the intent of the legislature is clear; they intended for the [adopted] child to continue to inherit from his natural parents.”)

      . "Child” shall include ... a child in relation to whom the deceased employee stood in the place of a parent for at least one (1) year prior to the time of injury.” Miss.Code Ann. § 71-3-3(1) (Rev.2011).

      ."Child” shall include ... a child in relation to whom the deceased employee stood in loco parentis for at least one year prior to the time of injury.” 33 U.S.C. § 902(14) (2009).

      . Ark.Code Ann. § 16-62-102(d); Del.Code Ann. tit. 10 § 3724(d)(5) (1999).

      . Apellant’s Statement of the Issues, Appellant's Brief at 1.

      . Only the Montgomery DNA test is in the record. However, Halley, in the Guardian Ad Litem brief, concedes that "On October 13, 2008, a Genetic Test Report was filed ... where Justin was found to have 0% probability of paternity of Halley.”

        . Hogan v. Buckingham ex rel. Buckingham, 730 So.2d 15 (Miss.1998).

      . This is quite a distinction from establishing who may bring a wrongful-death action.

      . As noted above, the parties and the chancellor agreed that Justin was presumed to be Halley's father.

      . The majority is correct that a DNA test was ordered as part of the divorce proceedings. But that was a separate test, focused on Justin’s biological relationship vel non to Halley, and it did not establish Montgomery as the biological father. Maj. Op. ¶ 3.

      . Justice McRae concurred in result only without opinion.

      . Specifically, the report of the guardian ad litem makes reference to several chancery court adjudications finding that Justin was Halley's father. Those judgments and/or orders are not included in the record on appeal.

      . The majority cites cases holding that prior paternity orders "may be vacated once DNA testing establishes someone other than the named individual” as the child’s biological parent. Griffith v. Pell, 881 So.2d 227, 231 (Miss.Ct.App.2003) (citing M.A.S. v. Miss. Dep't of Human Servs., 842 So.2d 527, 531 (Miss.2003)). But here, the record is devoid of any suggestion that the prior orders recognizing Justin as Halley's father had been vacated.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Latitus JONES a/k/a Latidtus Jones, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01468-COA.
    Court of Appeals of Mississippi.
    April 23, 2013.
    Rehearing Denied Sept. 17, 2013.
    Certiorari Denied Jan. 23, 2014.

      George T. Holmes, Jackson, Phillip Broadhead, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   BARNES, J.,

for the Court:

¶ 1. A Tunica County jury convicted La-titus Jones of uttering forgery. The trial judge sentenced Jones as a habitual offender to ten years in the custody of the Mississippi Department of Corrections (MDOC). Jones now appeals, claiming that his indictment was defective; he was prejudiced by appearing shackled before the jury; an audio recording of his interview by law enforcement should have been suppressed; and the weight and sufficiency of the evidence was inadequate. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In August 2010, Jones was indicted for uttering forgery of a check. The charge stems from an incident on or about Saturday, October 17, 2009. On that day, shortly before closing time, Jones entered the Money Tree, a check cashing business in Tunica, Mississippi, and presented a check for $950.09 to employee Linda Tutor to be cashed. The check was drawn from the account of “Real’s Trucking, Inc.,” in Gunnison, Mississippi, and dated October 12, 2009, for “contract labor.” The account was at Woodforest Bank, and the check was signed by “Joe Peals.” Since it was Saturday, Tutor could not verify the check with the bank’s automated telephone number, but she cashed it for Jones anyway. Seven days later, Tutor learned the check did not clear the bank.

¶ 3. Jones then made a second trip to the Money Tree on or about Saturday, October 24, again at closing time, attempting to cash another check for $950.87, drawn from “Goss Roofing, Inc.,” in Greenville, Mississippi, dated October 22, 2009, and signed by “Tom Best.” Tutor did not cash the check but instead contacted law enforcement and made casual conversation with Jones until the police arrived. Law enforcement asked Jones to come to the police station for an interview, and Jones complied. After the interview, he was released. Over a month later, a warrant was issued for Jones’s arrest in connection with uttering a forgery and the robbery of a Kroger store in Washington County. On December 4, 2009, Jones was interviewed a second time by law enforcement.

¶4. In August 2010, Jones was indicted for one count of uttering forgery in Tunica County. The text of the indictment related to the first check from Real’s Trucking. However, erroneously attached to the indictment was a copy of the second check from Goss Roofing.

¶5. In July 2011, Jones’s two-day trial commenced. He appeared at the courthouse in his yellow MDOC prison jumpsuit, wearing a waist shackle and leg irons. The prosecution raised a concern about the jury’s seeing Jones restrained; so a hearing ensued in the judge’s chambers. After testimony from MDOC officers about whether Jones should remain restrained, the judge decided Jones should not walk before the jury with restraints on, but would already be seated at the defense table when they entered. However, after voir dire, the judge noted it was apparent the jury had seen Jones’s restraints. Therefore, prior to the State’s opening statement, he instructed the jury that the fact Jones was already in the custody of the MDOC had no bearing on his guilt or innocence for the current charge. Then, during the State’s opening statement, the jury had to be excused when the court reporter had technical difficulties. Upon their return, the judge announced that Jones’s restraints had been removed, and again instructed the jury to disregard the restraints as evidence of guilt or innocence. On the second day of trial, Jones was not shackled and wore civilian clothes.

¶ 6. Also, before trial, a hearing was held on a Miranda violation Jones alleged in a pro se pretrial motion. The allegation concerned statements taken by Officer Michael Nichols, chief investigator for the Tunica Police Department, who conducted the two interviews with Jones in October and December of 2009. Officer Nichols was examined, as well as Jones. Two signed waiver-of-rights forms for each interview were introduced into evidence. The judge found no Miranda violation had occurred during the interviews.

¶ 7. At trial the State called four witnesses. Officer Nichols testified that he was notified by Money Tree when no record of the account for the first cashed check was found. He called the Woodfor-est Bank and discovered the check’s account never existed. There was also no response when Officer Nichols called the phone number listed on the check for “Real’s Trucking.” Further, when a computer search was done for the address of the alleged company in Gunnison, it could not be found. Satellite computer photographs showed the area to be residential.

¶ 8. The first time Officer Nichols interviewed Jones was after Jones attempted to cash the second check on October 24, 2009. At that time, Officer Nichols could not verify that the Goss Roofing check was invalid, but he confronted Jones about the invalidity of the Real’s Trucking check. Jones told him both checks were for some work he had done for two different people, but he could not provide Officer Nichols with the names of the individuals who had given him the checks. Also during the interview, Jones revealed he was from Rosedale, Mississippi, and had a cousin by the name of “Joe Pearls,” but he did not provide any further useful information for the investigation, and was released.

¶ 9. On December 4, 2009, Officer Nichols interviewed Jones again. At this point, Jones was under arrest, and gave a statement that revealed an illegal check-cashing scheme, whereby he and others were receiving the checks from an individual named Ellis Urshery. The CD audio recording of both of Jones’s statements was entered into evidence, and portions were played for the jury during Officer Nichols’s examination. In both interviews, Officer Nichols immediately advised Jones of his Miranda rights, and Jones signed a statement waiving those rights.

¶ 10. Tutor, who had worked at Money Tree for approximately four years, related Jones’s two check-cashing attempts. Additionally, Woodforest Bank employee Tameka Dowl from the Senatobia, Mississippi branch testified that she could not find the account’s name or number in the bank’s system for the first check. The bank also has branches in Greenville and Clarksdale, Mississippi. Finally, a Gunni-son resident testified that the address on the Real’s Trucking check was actually her residential address, and there had never been such a business at the house or in Gunnison. The residence had been purchased after a foreclosure.

¶ 11. The State then rested, and the defense did not call any witnesses. The jury found Jones guilty of uttering forgery. At Jones’s sentencing hearing, proof of two prior convictions was entered into evidence — a bank robbery in Illinois in 1999 and the Washington County Kroger robbery in 2009. The judge sentenced Jones as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007) to ten years in the custody of the MDOC, without the possibility for parole or probation. Jones filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which was denied. Jones timely appealed.

ANALYSIS

1. Indictment

¶ 12. Jones argues that his indictment is fatally defective because the check described in the indictment for uttering forgery (the check drawn from “Real’s Trucking, Inc.,” on October 12, 2009 for $950.09) was not attached to the indictment. Instead, the second check Jones attempted to cash at the Money Tree (from “Goss Roofing, Inc.,” on October 22, 2009 for $950.87) was attached. He states this error warrants reversal of his conviction.

¶ 13. The purpose of an indictment is to give the defendant reasonable notice of the charges against him in order that he may prepare an adequate defense. Brawner v. State, 947 So.2d 254, 265 (¶ 31) (Miss.2006) (citing Brown v. State, 890 So.2d 901, 918 (¶ 61) (Miss.2004)). Indictments must contain “a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06. The ultimate test for the validity of an indictment is whether the defendant was prejudiced in preparing his defense. Medina v. State, 688 So.2d 727, 730 (Miss.1996). Whether an indictment is fatally defective is a question of law, which this Court reviews de novo. Moten v. State, 20 So.3d 757, 759 (¶ 4) (Miss.Ct.App.2009).

¶ 14. Jones admits that this issue was never raised before the trial court. While Jones did file a pro se motion to quash his indictment for various reasons, it did not include this specific issue. The State argues the issue is procedurally barred. Generally, “[a] trial judge will not be found in error on a matter not presented to him for decision.” Gray v. State, 728 So.2d 36, 70 (¶ 169) (Miss.1998) (quoting Jones v. State, 606 So.2d 1051, 1058 (Miss.1992)). “It is only in cases where the indictment does not charge an offense that defects in an indictment may be challenged on appeal for the first time.” Salisbury v. State, 293 So.2d 434, 436 (Miss.1974) (citing Cohran v. State, 219 Miss. 767, 775, 70 So.2d 46, 48 (1954)).

¶ 15. Additionally, courts may amend an indictment as to defects of form, but only the grand jury may correct defects of substance. Jones v. State, 912 So.2d 973, 976 (¶9) (Miss.2005). “An amendment is one of form if the amendment is immaterial to the merits of the case and the defense will not be prejudiced by the amendment.” Id. (citing Pool v. State, 764 So.2d 440, 443 (¶ 10) (Miss.2000)). “The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood would be equally available after the amendment is made.” Id.

¶ 16. “Defects on the face of an indictment must be presented by ... demurrer.” Gray, 728 So.2d at 70 (¶ 169) (citing Brandau v. State, 662 So.2d 1051, 1054 (Miss.1995)). When “the formal defect is curable by amendment!,] the failure to demur ... will waive the issue from consideration on appeal.” Id. (quoting Brandan, 662 So.2d at 1055). Jones admits there was no demurrer for this error, but claims the error is substantive, and not one of form; so no demurrer was needed to preserve the issue for appeal. We disagree, and find this defect was one of form, and could have been cured by amendment. Additionally, the change would have been immaterial to the merits of the case. Therefore, the issue is procedurally barred because Jones did not raise it below.

¶ 17. Even if the issue was not procedurally barred, it is without merit. The text of the indictment specifically states:

Jones ... on or about October 15, 2009 ... did unlawfully, wilfully and felo-niously, utter or publish as true to Linda Taylor,[] at Money Tree, a certain forged, altered or counterfeit instrument purporting to be check no. 1029 dated October 15, 2009, on the Woodforest Bank, account of Real Trucking, Inc., in the amount of $950.09, when he ... knew the same to be forged, altered or counterfeit with the intent to defraud ... Woodforest Bank, and/or Money-Tree, and/or Real Trucking, Inc., there being a true and correct copy of said check attached hereto and made a part hereof....

While there was not a “true and correct copy” of the described check attached to the indictment, we find the indictment’s text gave Jones sufficient notice of the uttering-forgery charge against him, so that he could prepare an adequate defense. The State made no attempt to correct or amend the attachment, but the record does not indicate Jones or his counsel were confused about the nature of the charge.

¶ 18. Jones cites to Copeland v. State, 423 So.2d 1333 (Miss.1982), in support of his argument. There, the supreme court found the indictment substantially flawed because the State left out certain numerals from the description of a chemical compound for an illegal drug. Id. at 1336-37. Due to the error, the indictment actually described a drug that was not illegal; therefore, the indictment did not charge the defendant with a crime. Id. Copeland is distinguishable, however. Here, we have an indictment that fully describes within its text the crime of uttering forgery and the check used in that crime. Additionally, both checks were entered into evidence at trial.

¶ 19. Jones argues different elements of proof for uttering forgery would be required with the Goss Roofing check, and that it was error to discuss that check in the State’s case. Again, we disagree. Officer Nichols described his investigation of the Real’s Trucking check, and the lack of a valid account, which led to a warrant for Jones’s arrest. Jones was arrested when he attempted to cash the Goss Roofing check, which was for nearly the same amount as the prior check, at the Money Tree. Accordingly, we cannot find Jones’s defense was prejudiced by having the Goss Roofing check attached to his indictment. We find no reversible error.

2. Restraints

¶ 20. Jones claims the trial court committed plain error by “forcing” him to be shackled during the jury-selection process. Because he was unduly prejudiced Jones argues, his conviction should be reversed and a new trial granted.

¶ 21. In Mississippi,

[i]t is a common-law right of a person being tried for the commission of a crime to be free from all manner of shackles or bonds, whether of hands or feet, when in court in the presence of the jury, unless in exceptional cases where there is evident danger of his escape or in order to protect others from an attack by the prisoner. Whether that ought to be done is in the discretion of the court, based upon reasonable grounds for apprehension. But, if this right of the accused is violated, it may be ground for the reversal of a judgment of conviction.

Jones v. State, 20 So.3d 57, 60 (¶ 10) (Miss.Ct.App.2009) (quoting Rush v. State, 301 So.2d 297, 300 (Miss.1974)). However, there must be a showing of prejudice to the defendant before we will reverse a conviction on this ground. Williams v. State, 962 So.2d 129, 131 (¶ 8) (Miss.Ct.App.2007) (citing Payton v. State, 897 So.2d 921, 932 (¶ 16) (Miss.2003)). The Mississippi Supreme Court has held that, “[generally, we have not found the right to a fair trial to have been abridged where the defendant has been seen in the courtroom by the jury in shackles or handcuffs.” McGilberry v. State, 843 So.2d 21, 27 (¶ 7) (Miss.2003) (quoting Brown v. State, 690 So.2d 276, 287 (Miss.1996)). Furthermore, because the trial judge is uniquely situated to make the judgment call, he is given considerable discretion regarding the decision to restrain a defendant. Marquez v. Collins, 11 F.3d 1241, 1244 (5th Cir.1994).

¶ 22. Jones appeared at the courthouse the first day of trial wearing his prison attire, along with waist and leg restraints. In chambers, prior to appearing before the prospective jurors, the prosecution raised concerns about Jones’s being seen by the venire in restraints. Also, Jones and his attorney explained why he was in prison clothing. A hearing ensued about these matters, and the following exchange occurred among two MDOC transport officers, the attorneys for both parties, and the trial judge:

BY THE COURT: Is Mr. Jones a security concern?
BY OFFICER [KENNETH] DIXON: Sir, so far he has not gotten belligerent with us. Since I’ve been in this courthouse, he has cussed a lieutenant, I believe, with the sheriffs department about the clothing that was offered to him. He has put some type of bodily fluid on my restraints. I would have to be ordered from you to take those restraints off, sir, and I would not feel comfortable doing so.
BY THE COURT: Ms. [Sherry] Re-vette, how about your views on this?
BY MDOC OFFICER REVETTE: Our orders are that if you tell us to take them off, we can take them off, but we have to follow your orders.
BY THE COURT: Do you have any concerns about a security issue?
BY MDOC OFFICER REVETTE: I don’t know him, and our orders on our paper said he was to remain in restraints the whole time we had him gone.
BY THE COURT: ... Mr. Williams [assistant district attorney], your view sir?
BY MR. WILLIAMS: I don’t know his custody level. I would imagine it’s certainly not one that would allow him to have free restraint given the fact that he’s housed in southern Mississippi. So I would certainly want him to be restrained, but my only concern is how do we get him in the courtroom while he’s restrained with the jury present. Do we remove the jury out, allowing him to take his seat and then bring them back in or what?
BY THE COURT: Mr. Johnson [defense attorney], do you have a position, sir?
BY MR. JOHNSON: Your Honor, a couple of positions on that. Your Hon- or, I think that we can’t force him to change clothes, but I think — when he comes in, I don’t think that the restraints can be obvious, your Honor....
BY THE COURT: Well, I can have the jury removed, and I can have Mr. Jones placed at defense counsel so that it will not be apparent- Mr. Jones, what restraints do you have, sir?
BY MDOC OFFICER DIXON: Waist shackle and leg irons.
BY THE COURT: All right. Well, if he were to keep his arms down, I don’t think it would be readily apparent to the jury that he was—
BY DEFENDANT JONES: So I have to be very — quite still with these bells on.
BY THE COURT: Well, at this point and time, here’s what we’re gonna do. I’m gonna have the jury removed from the courtroom. I’m gonna have Mr. Jones seated at defense counsel in his restraints and since he chooses to be in his yellow jumpsuit, he will remain in his yellow jumpsuit. We will go about the business of picking this jury.

(Emphasis added.) The transcript indicates the venire came into the courtroom with Jones already seated at the defense table. Voir dire took place for approximately one hour, during which Jones was asked to stand when introduced to the venire. When voir dire concluded, Jones remained seated while the venire exited the courtroom. The venire was called back into the courtroom after jury selection concluded, while Jones remained seated. The jurors were impaneled, sworn, and then excused for lunch after approximately ten minutes.

¶ 23. After the jury had exited the courtroom, the trial judge asked both counsel to approach the bench. He noted that it was obvious the jury had observed Jones in prison attire and restraints, and likely concluded he is already an inmate of the MDOC. The attorneys for both the State and Jones agreed that it would be appropriate for the judge to inform the jury that Jones’s attire and restraints have no relevance to his guilt or innocence for the charge then before the court. Therefore, before opening statements, the trial judge made the following statement to the jury:

[A]s you can tell, the defendant here today is dressed in jail garb. He’s not dressed in street clothes. That’s obvious. Simply because he is in jail or prison now has nothing to do with his guilt or innocence of this particular charge. We’re here today on an uttering forgery charge, and that’s all. You are not to consider the fact that he may be in custody at this time on any other matter. It’s not material to his guilt or innocence on this charge. We’re just trying this charge here today. Everybody understand that?
By policy, you will see that [Jones] is shackled. I know that you have seen that previously. Again, [it] has no bearing on his guilt or innocence on this charge. Not to consider that with regard to this charge. Does everybody understand that?
Is there anybody who cannot do that? All right.

The State then proceeded with its opening statement. However, after a break in the State’s opening statement due to technical errors with the transcription, the trial judge made the following announcement to the jury:

Let me inquire again, though — despite whatever policies there may be in place, I ordered that the handcuffs and other matters, restraints, be removed from the defendant. I want to make certain that the defendant has not been 'prejudiced in your eyes by having those restraints on. Now you understand that has nothing to do with his guilt or innocence in this particular case here today? Everybody understands that?
Can y’all disregard that fact? ... [I]s there anybody that cannot disregard that? All right. I see no hands. All right. I’m serious about that now.

(Emphasis added.) Jones was not restrained for the remainder of his two-day trial. The defense did not move for a mistrial.

¶ 24. Here, the trial judge went through a detailed hearing on whether or not Jones was a security concern. The two MDOC transport officers stated they had orders to keep Jones restrained, and one officer stated he did not feel comfortable having Jones unrestrained. The prosecutor agreed. Jones’s attorney did not object to the restraints, but he did express concern that they should not be “obvious.”

¶ 25. It is clear from the transcript that the restraints, found on Jones’s waist and legs, were not “readily apparent” to the jury, but when they were seen by the jury, the trial judge ordered them removed. The judge also attempted to keep the appearance of Jones’s restraints at a minimum by having Jones remain seated as the jury entered and exited the courtroom. Finally, the trial judge instructed the jury twice to disregard the restraints as proof of innocence or guilt.

¶ 26. Jones makes the argument that when the trial judge had Jones’s restraints removed, it indicated his initial decision to leave Jones’s restraints on was “plain error,” and Jones’s conviction should be reversed. We find no merit to this argument. Removing the restraints indicated that the trial judge wanted to prevent any prejudice to Jones. There was no evidence that Jones was prejudiced by temporarily appearing before the jury in restraints, especially in light of the trial judge’s two instructions to the jury that the restraints were immaterial to the charges before them. The trial judge did not abuse his discretion in this regard.

3. Suppression of Audio-Recorded Statements

¶27. Jones argues that he was prejudiced when the trial court failed to suppress an audio recording of his interview with law enforcement, which he claims was taken in violation of his Miranda rights. Jones contends he invoked his right to counsel at the interview, but the officers proceeded to coerce, intimidate, and confuse him. Additionally, he states his signed waiver-of-rights form is invalid because it was involuntary.

¶ 28. It is well established that an appellate court:

will reverse a trial court’s ruling on a motion to suppress “if the incorrect legal principle was applied; if there was no substantial evidence to support a voluntary, knowing, and intelligent waiver of Miranda rights; and if the denial was a result of manifest error.”... “[T]he trial judge must determine beyond a reasonable doubt that a confession was voluntary and knowing and that the defendant was given his Miranda rights prior to any custodial interrogation.” This is a factual determination made by the trial court based on the totality of the circumstances.

Redmond v. State, 66 So.3d 107, 111 (¶ 12) (Miss.2011) (internal citations omitted).

¶ 29. The pretrial hearing on Jones’s pro se motions included allegations of Miranda rights violations in a pleading entitled “Statement of Facts.” The judge found no Miranda violation, and the audio recording of the interviews was entered into evidence during Officer Nichols’s direct examination. We find the trial court’s ruling supported by substantial evidence.

¶ 30. At the hearing, Officer Nichols and Jones testified about the two interviews on October 24, 2009, and December 4, 2009. In the first interview, Officer Nichols stated Jones did not offer much useful information for the investigation. In the second interview, Jones implicated others involved in the scheme. At both interviews, Jones was advised of his Miranda rights before questioning began. Jones indicated he understood those rights, and signed a Miranda waiver form. The two signed waiver-of-rights forms were introduced into evidence. In the December 2009 meeting, Officer Nichols testified that Jones signed the waiver about ten minutes after he had been read his rights, but before he gave a statement that officers could use against him. The audio recording corroborates Officer Nichols’s testimony.

¶ 31. Jones contends the second interview improperly continued after Jones requested a lawyer. Under Miranda, the accused must be warned of the right to remain silent and the right to an attorney before any custodial interrogation occurs. Barnes v. State, 30 So.3d 313, 316 (¶ 8) (Miss.2010) (citing Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). “Once a defendant asks for counsel, he cannot be interrogated further until counsel has been made available, ‘unless the accused himself initiates further communication, exchanges, or conversations with the police.’ ” Id. at 316-17 (¶ 8) (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)).

¶ 32. At the beginning of the second interview, while Jones did request a lawyer directly after his Miranda rights were read, he proceeded to initiate further conversation with Officer Nichols, who warned Jones that since he had requested a lawyer, if he continued to talk, it was of his own free will. Even so, Jones continued to converse with Officer Nichols for approximately ten minutes before he signed the waiver-of-rights form. Shortly after, Jones voluntarily told Officer Nichols he was willing to make a statement without a lawyer because he “had nothing to hide.” Approximately thirty minutes later, Jones requested a lawyer again, but he continued his conversation with Officer Nichols. At no point was Jones coerced into talking, nor was he threatened with words and actions “likely to elicit an incriminating response,” as Jones argues. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The interview proceeded for a total of approximately an hour and twenty minutes. We cannot say from these facts that Jones’s Miranda rights were violated because Jones continued the conversation even after he requested counsel.

¶33. In sum, Jones’s waiver of Miranda rights was voluntary, and his continuing to speak without the presence of his requested attorney was also voluntary. Accordingly, the trial court did not abuse its discretion in finding no Miranda violation.

4. Sufficiency and Weight of the Evidence

¶ 34. Jones argues that the State failed to prove beyond a reasonable doubt the essential elements of uttering forgery— specifically “guilty knowledge” and “intent to defraud.” Therefore, Jones submits the sufficiency and weight of the evidence were inadequate, and his motions for a directed verdict, JNOV, or alternatively a new trial should have been granted.

A. Sufficiency of the Evidence

¶ 35. A motion for a directed verdict and a motion for a JNOV challenge the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). When reviewing the denial of these motions, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (citation omitted). All credible evidence supporting the defendant’s guilt will be accepted as true, and the evidence will be considered in the light most favorable to the State. McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 36. Mississippi Code Annotated section 97-21-59 (Rev.2006) states in pertinent part:

Every person who shall be convicted of having uttered or published as true, and with intent to defraud, any forged, altered, or counterfeit instrument ... the forgery, altering, or counterfeiting of which is declared by the provisions of this chapter to be an offense, knowing such instrument ... to be forged, altered, or counterfeited, shall suffer the punishment herein provided for forgery.

It was undisputed that the checks presented to the Money Tree were in Jones’s prior possession. Therefore, “[a] rebutta-ble presumption of his guilty knowledge arose. ‘It is well settled that either unexplained or unsatisfactorily explained possession of a forged instrument by the defendant is prima facie evidence that he either committed the forgery himself, or procured another to do so.’ ” Cannady v. State, 855 So.2d 1000, 1003 (¶ 9) (Miss.Ct.App.2003) (quoting Rowland v. State, 531 So .2d 627, 630 (Miss.1988)).

¶ 37. Jones did not present a case after the State rested. Jones explained in the second audio-recorded interview that he obtained the checks from Ellis Urshery, who used people to “work” and then cash the checks. This statement does not rebut the State’s prima facie case for “guilty knowledge.” While it is a reasonable explanation for possession of the forged check, Jones admitted knowledge and involvement in the check-cashing scheme. Jones claims the testimony of Officer Nichols, Tutor, and Dowl failed to establish that the checks were forged, or Jones knew they were forged. We disagree. There was no record of an account belonging to Real’s Trucking at Woodforest Bank, and no evidence the company even existed. In the second interview, Jones admitted knowledge of a fraudulent check-cashing scheme. The remaining factual discrepancies Jones points out in his brief relate to questions of fact for the jury to decide, or questions that might have been posed at trial on cross-examination, and not the sufficiency of the evidence. Viewing the evidence in the light most favorable to the State, a rational trier of fact could have found all of the elements of uttering forgery beyond a reasonable doubt. Accordingly, the trial court did not err in denying Jones’s motions for a directed verdict or JNOV.

B. Weight of the Evidence

¶ 88. “A motion for [a] new trial challenges the weight of the evidence. A reversal is warranted only if the lower court abused its discretion in denying a motion for [a] new trial.” Dilworth v. State, 909 So.2d 731, 737 (¶ 20) (Miss.2005) (quoting Howell v. State, 860 So.2d 704, 764 (¶ 212) (Miss.2003)). This Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). The evidence will be considered in the light most favorable to the verdict. Id.

¶ 39. Jones argues that the State did not conclusively establish that he forged the check, and the testimony from Tutor and Dowl is vague and conflicting. We see no such conflict, and regardless, “[t]he jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Mohr v. State, 584 So.2d 426, 431 (Miss.1991). The jury was presented with substantial evidence to support Jones’s conviction for uttering forgery. Accordingly, the trial court did not abuse its discretion in denying Jones’s motion for a new trial.

¶ 40. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY OF CONVICTION OF UTTERING FORGERY AND SENTENCE AS A HABITUAL OFFENDER OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION AND TO PAY RESTITUTION OF $950.09 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

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

      . The indictment stated the incident occurred on October 15, 2009, which was a Thursday, but the Money Tree employee who waited on Jones testified the incident took place on a Saturday.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Under a motion filed with this Court, law students from the University of Mississippi School of Law Criminal Appeals Clinic were appointed as special counsel for Jones. Law students Lauren Fanning and Phillips Strickland prepared Jones's brief under the supervision of Attorney-Professor Phillip W. Broad-head, director of the clinic.

      . The trial judge granted the State's pretrial motion to amend the indictment, changing the name "Linda Taylor” to "Linda Tutor.” The incorrect name was due to a scrivener's error. On appeal, the State discusses this amendment, but Jones did not raise this matter as a point of error in his brief; so we will not discuss it.

      . In his brief, Jones claims he was "forced” to wear shackles. In actuality, it appears from the transcript that Jones was transferred to the courthouse already in restraints "by policy,” and the issue was whether the restraints should remain on in the presence of the jury, even though they were not readily apparent.

      . On appeal, the State discussed Jones wearing his prison attire the first day of trial, but this matter was not raised in Jones's brief; so we decline to discuss it further.

      . Jones refused to wear the civilian clothes his attorney provided him, claiming they were not his, did not fit, and were dirty.

      . According to the transcript, during voir dire and jury impanelment, Jones appeared shackled before the jury for approximately one hour and ten minutes, and during the State's opening statement for about fifteen minutes, for a total of approximately one hour and twenty-five minutes. It is not clear from the record if the restraints were visible this entire time or not.

      . Jones's arguments deal only with the second interview in December 2009.