author: ROBERT M. MURPHY, Judge.

text:
    STATE of Louisiana v. Tiron COBBS.
    No. 12-KA-773.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet L. Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   ROBERT M. MURPHY, Judge.

| gDefendant, Tirón Cobbs, appeals the denial of his motion to amend sentence to include participation in the Boot Camp/IMPACT program of the Department of Corrections (“DOC”). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Defendant, Tirón Cobbs, was charged in a bill of information on May 26, 2009 by the Jefferson Parish District Attorney with one count of attempted armed robbery, a violation of La. R.S. 14:(27)64. Defendant pled not guilty at his arraignment on May 27, 2009 and also pled not guilty at a second arraignment held on July 28, 2009. Following a preliminary hearing on November 9, 2009, the court found that the State had probable cause to maintain defendant in custody. La. C.Cr.P. art. 296. After filing several motions, defendant withdrew his previous plea, and on June 14, 2010, pled guilty as charged. Following a pre-sentence investigation, defendant was sentenced on December 8, 2010, to 15 years at hard labor without the benefit of parole, probation or suspension of sentence. Defendant thereafter filed three pro se motions to amend or modify his sentence, |swhich were denied. On June 22, 2011, the trial court granted defendant’s Subpoena Duces Te-cum For Production of Documents. On July 11, 2011, the court denied as repetitive defendant’s second request for documents, which was filed on July 1, 2011. Defendant filed a Motion and Order For Appeal on July 19, 2011, seeking review of the court’s judgment regarding his motion for production of documents. This Court converted defendant’s motion into an application for supervisory writs and provided defendant with a return date of August 29, 2011.

On November 14, 2011, defendant filed a “Method of Appeal/Post conviction relief Pursuant to L.S.A. Art. 914”, which the court denied.

On January 4, 2012, defendant addressed a letter to the trial court in which he asked the court to recommend to DOC that he be placed in a “Boot Camp/Impact Program.” On January 26, 2012, the trial court responded to defendant’s letter. In pertinent part, the court indicated that defendant should direct his request to DOC. The court further explained to defendant that it had no jurisdiction to order defendant’s admission into the programs, because he was already in DOC custody. The court concluded, “Although the court does not have such authority to order [defendant’s] admission into the program, the court recommends to the Department of Corrections that defendant be located where such programs are available.”

Defendant sought writs to this Court following the trial court’s denial of his “Method of Appeal/Post conviction relief Pursuant to L.S.A. Art. 914.” In writ 12-KH-30, this Court granted defendant’s application and transferred it back to the trial court for consideration as a motion for an out-of-time appeal pursuant to State v. Counterman, 475 So.2d 336 (La.1985). On June 20, 2012, defendant filed a writ of mandamus with the trial court requesting that this Court’s Order of February 23, 2012, be enforced. The court granted defendant an out-of-time appeal on July 9, 2012, and this appeal follows.

Because the defendant pled guilty, the underlying facts of this case were not developed at trial. However, the bill of information indicates that on May 4, 2009, defendant attempted to rob Cynthia Carranza in Jefferson Parish while armed with a firearm.

LAW AND DISCUSSION

In his sole assignment of error, defendant contends that the trial court erred by stating in its Order of January 26, 2012, that it had no jurisdiction or authority over how defendant’s sentence is served once he is in DOC custody. He claims that the court erred in failing to recognize that it had the ability to amend or modify his sentence to permit his participation in the IMPACT program, despite already having begun to serve his sentence.

Conversely, the State argues that defendant is mistaken in his interpretation of the law, given the facts and procedural history of the case.

The record reflects that at the time of defendant’s guilty plea on June 14, 2010, defendant understood that his sentencing range was from “0 to 49½ on each count at hard labor without benefit of probation, parole [and] suspension of sentence.” The court further ordered a pre-sentence investigation (“PSI”) on that date as well. Defendant acknowledged during the colloquy with the judge that the court was not promising to sentence defendant to any given term. There was no discussion during the hearing about placing defendant in the IMPACT Program or in any similar programs.

At the sentencing hearing on December 8, 2010, the trial court asked defendant if he had a chemical dependency or drug problem, to which the | ^defendant replied, “No, sir.” Once again, there was no discussion during the hearing about placing defendant in the IMPACT Program. The court sentenced defendant to 15 years at hard labor with credit for time served, without benefits. The commitment of December 8, 2010, accurately reflects defendant’s sentence.

Defense counsel objected to the sentence on the record, and defendant filed his first timely pro se Motion For Amendment of Sentence, under La.C.Cr.P. art. 881, on December 15, 2010. Although the court could have considered defendant’s motion timely under La.C.Cr.P. art. 881.1, it denied relief in its December 29, 2010 Order, in part, on the basis that La. C.Cr.P. art. 881 does not allow the amendment of a hard labor sentence once a defendant has begun to serve that sentence. Of important note, however, the judge also referred to and apparently considered the merits of defendant’s Motion To Amend or Modify Sentence, noting that the sentence was the result of a guilty plea, imposed after a PSI, and that the sentence was “within the statutory parameters provided.”

The defendant filed similar motions to amend his sentence on December 17, 2010 and January 6, 2011, both of which were denied by the court on similar grounds as its previous order with the added provisions that defendant’s pleading was, by then, also “repetitive and successive.”

La.C.Cr.P. art. 881, cited by defendant and pertaining to the amendment of sentences, provides, in relevant part:

A. Although the sentence imposed is legal in every respect, the court may amend or change the sentence, within the legal limits of its discretion, prior to the beginning of execution of the sentence.
B. (1) After commencement of execution of sentence, in felony cases in which the defendant has been sentenced to imprisonment without hard labor and in misdemeanor cases, the sentencing judge may reduce the sentence or may amend the sentence to place the defendant on supervised probation. Should the court consider any motion amending or changing the sentence imposed, either prior to or after execution of the sentence, the district attorney shall be notified and, if such motion is filed by the defendant, it shall be tried contradictorily with the district attorney, unless the district attorney waives such contradictory hearing.

|ñIn this case, defendant sent a letter to the trial court dated December 20, 2011, which was filed on January 4, 2012. The letter, while not captioned as a motion by defendant, asked the court for “help” by way of a “simple recommendation ... for a Boot Camp/Impact facility Program or to simply be moved to a real D.O.C. facility.”

In an Order dated January 26, 2012, made in response to defendant’s “Letter To Court,” the court reiterated that defendant had been sentenced to 15 years imprisonment at hard labor, and that defendant was now requesting that the “court recommend him for the Department of Public Safety and Corrections’ Boot-camp/Impact Program.” The court stated:

The court commends the defendant on his desire to avail himself of trade and rehabilitative programs during his incarceration. Nonetheless, admission or denial into these programs is at the sole discretion of the Department of Corrections. La. R.S. 15:547.4. The defendant should direct his request to the Department of Corrections.
The court’s recommendation to Boot Camp/Impact programs is merely a recommendation, as this court has no authority or jurisdiction in how defendant’s sentence is to be served once he is in the custody of the Department of Corrections.
Although the court does not have such authority to order his admittance into the program, the court recommends to the Department of Corrections that defendant be located where such programs are available. (Emphasis added).

Defendant argues, in summary, that the sentence imposed on December 8, 2010, prevented him from being eligible to participate in a Boot Camp/Impact Program through DOC, and therefore the recommendation of the court was meaningless. Defendant further asserts that because he was not eligible for the programs, he should now be resentenced according to La. R.S. 15:574.4.1(G)(1), Land this Court’s opinion in State v. Jones, 09-888 (La.App. 5 Cir. 3/23/10), 39 So.3d 651.

At the time of defendant’s offense, La. R.S. 15:574.4.1(G)(1) provided:

G. (1) If an offender is denied entry into the intensive incarceration program for physical or mental health reasons or for failure to meet the department’s suitability criteria, the department shall notify the sentencing court, and based upon the court’s order, shall either return the offender to court for resentenc-ing in accordance with the provisions of the Code of Criminal Procedure article 881.1 or return the offender to a prison to serve the remainder of his sentence as provided by law.

In Jones, supra, this Court considered the issue of whether a defendant was entitled to be resentenced pursuant to the statute when he was found ineligible to participate in the DOC’s intensive incarceration program. The trial court’s recommendation for intensive incarceration in that case, however, was made as a part of defendant’s initial plea agreement. As this Court noted:

In exchange for defendant’s plea, the State agreed to refrain from filing a bill of information alleging that defendant was a habitual offender. Further, and most important to this appeal, the parties agreed that the trial judge would recommend defendant for an intensive incarceration, or IMPACT, program, colloquially referred to as “boot camp.” Id. at 652.

In reviewing the nature of defendant’s conviction, this Court determined that Jones was ineligible for intensive incarceration, and then remanded the case so that the Department of Corrections could formally notify the trial court of defendant’s failure to meet the department’s suitability criteria.

We find that defendant’s reliance on La. R.S. 15:574.4.1(G)(1) and Jones, supra, is misplaced. First, in this case, the record shows that a recommendation for intensive incarceration- was never discussed at the time of defendant’s sentencing on December 8, 2010, nor was a recommendation made as part of a plea bargain with defendant. The commitment and the sentencing transcript do not show the court’s recommendation for intensive incarceration. Accordingly, it appears that |sthe resentencing provision of La. R.S. 15:574.4.1(G)(1) is inapplicable under the facts of this case.

The defendant next asserts that it has been an “injustice” that he was summarily denied participation in the impact program in spite of the court’s January 26, 2012 Order.

It is clear that the trial court’s recommendation did not carry the force of law. First, as previously mentioned, under La.C.Cr.P. art. 881, the court was prohibited from amending defendant’s hard labor sentence which he had already begun serving. The court’s Order of January 26, 2012, acknowledges this in stating, “The court’s recommendation to Boot Camp/Impact programs is merely a recommendation, as this court has no authority or jurisdiction in how defendant’s sentence is to be served once he is in the custody of the Department of Corrections.” Further, defendant’s 15-year sentence for attempted armed robbery precluded him from eligibility in the intensive incarceration program, which required that a defendant be sentenced to no more than a seven-year sentence. Id.

In summary, the record reflects that defendant was not promised a recommendation for intensive incarceration in return for his guilty plea. Therefore, resentenc-ing under La. R.S. 15:574.4.1(G)(1) is inapplicable. Once defendant began serving his hard labor sentence, under La.C.Cr.P. art. 881 the. court was prohibited from amending it. Defendant’s term of sentence exceeds the maximum allowed for consideration.

Accordingly, we find that defendant’s assignment of error lacks merit. Defendant’s conviction and sentence are hereby affirmed.

ERRORS PATENT DISCUSSION

RThe record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Welland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

AFFIRMED

      . While the bill of information originally charged defendant with attempted armed robbery, the statute incorrectly cited was La. R.S. 14:64. However, a handwritten amendment to the bill of information on July 28, 2009, amended the statute notation to properly reflect that defendant was being charged under La. R.S. 14:(27)64.

      . The record does not specifically provide a ruling on defendant’s Motion To Amendment [sic] And/Or Modify Sentence, which appears to have been filed on January 6, 2011. However, the court denied all of defendant’s previous motions, which sought identical relief. On January 19, 2011, the court issued an order denying defendant's Motion For Reconsideration of Sentence, which also appears to have been filed on January 6, 2011. We find that the court’s order of January 19, 2011, effectively denied defendant's Motion To Amendment [sic] And/Or Modify Sentence, although the motion was not specifically mentioned in the order.

      . A judgment denying defendant’s motion does not appear in the record. However, in its order of July 9, 2012, the court indicated that it had denied defendant’s motion on December 14, 2011. In this Court’s disposition for writ 12-KH-30, this Court noted that defendant had attached a copy of the trial court's July 9, 2012 denial to his writ application.

      . As noted by the State in its brief in 2010, La. R.S. 15:574.4.1(G)(1) was redesignated to La. R.S. 15:574.4.4 by Acts 2010, No. 241. For purposes of economy'and to avoid confusion, the current statute is noted even though “the penalty provision in effect at the time of the offense is the applicable provision.” State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, 520-21.

      . Additionally, we further note that the record does not contain any evidence of the denial of defendant's request, other than what is written in his own correspondence to the trial court.


source: Caselaw Access Project

author: COLEMAN, Justice,

license: Public Domain

text:
    Kenton H. McNEESE v. Katherine J. McNEESE.
    No. 2012-CP-00174-SCT.
    Supreme Court of Mississippi.
    April 25, 2013.
    Rehearing Denied Aug. 22, 2013.

      Kenton H. McNeese, appellant, pro se.
    Sheila Havard Smallwood, attorney for appellee.
    Before WALLER, C.J., KITCHENS and COLEMAN, JJ.
   COLEMAN, Justice,

for the Court:

¶ 1. Kenton and Katherine McNeese executed a consent agreement to an irreconcilable differences divorce, and the chancellor granted the divorce on that ground. Kenton filed a motion to reconsider, which was denied. Kenton appeals the denial of his post-trial motion to reconsider as well as the grant of divorce based on irreconcilable differences. Finding no error, we affirm the chancery court.

Facts and Procedural History

¶ 2. Kenton and Katherine (“Katye”) McNeese were married on December 9, 2006. They have one child, Hattie, born in January 2009. Katye filed for divorce on October 1, 2010, alleging habitual cruel and inhuman treatment, or in the alternative, irreconcilable differences. The parties agreed to a temporary custody agreement pending trial. On the first day of trial, the parties entered into a consent agreement to an irreconcilable differences divorce. They agreed to let the court determine child custody, visitation, support issues, division of marital assets, and alimony.

¶ 8. Trial was held on April 11, 2011, and June 1, 2011. The chancellor rendered an opinion on September 2, 2011, and granted the irreconcilable differences divorce pursuant to the consent agreement. He granted physical custody of Hattie to Katye, set out the guidelines for visitation, ordered Kenton to pay $588 per month for child support, and divided property between the parties; alimony and attorneys’ fees were not awarded to either party.

¶ 4. Katye filed a Motion to Reconsider, Motion for a New Trial, or to Alter or Amend Judgment, and Motion for Stay of Proceedings to Enforce a Judgment on the ground that Kenton had failed to disclose certain items in the required financial disclosures. Kenton did not respond or file a separate motion to reconsider. A hearing on Katye’s motion was held on September 29, 2011. On October 12, 2011, the court entered an order specifically addressing the issues raised in Katye’s motion to reconsider, then entered an Amended Opinion and Final Judgment to make several clarifications to the original opinion.

¶ 5. By this time, Kenton had fired his attorney. On October 18, 2011, Kenton filed, pro se, a Motion to Reconsider, Motion for a New Trial, to Alter or Amend Judgment, and Motion for Stay of Proceedings to Enforce a Judgment, alleging that: (1) he was represented poorly by prior counsel; (2) Katye and others who testified on her behalf had defrauded the court through their perjured testimony; and (3) opposing counsel had violated her oath as an attorney and as a municipal judge. He requested a new trial, new custody arrangements, and that costs and attorneys’ fees be assigned to Katye.

¶ 6. At the end of October, Katye remarried her first husband, Michael Graves. Upon learning that Katye had remarried, Kenton wanted to withdraw his consent to the irreconcilable differences divorce. Between November 8 and 17, Kenton filed, pro se, seven subpoenas; a Motion for Contempt, Sanctions, and Relief; a Motion to Expunge Order of Withholding; a Motion to Expunge Consent Agreement to Irreconcilable Differences Divorce; and a Cross-Complaint and Counter-Complaint for Divorce. A hearing on Kenton’s motion to reconsider took place on November 21, 2011. On January 4, 2012, the chancellor entered a Final Order denying Kenton’s motion to reconsider and dismissing or denying all other motions on the grounds of res judicata and estoppel. Kenton filed a Notice of Appeal on January 30, 2012.

Discussion

¶ 7. Kenton, pro se, asserted ten issues on appeal, which have been summarized and reorganized for the purpose of discussion:

1. Whether the chancellor erred in granting the divorce on the ground of irreconcilable differences;
2. Whether the chancellor erred by not allowing Kenton to amend his pleading to match the evidence as allowed under Rule 15(b) of the Mississippi Rules of Civil Procedure, including the withdrawal of the irreconcilable differences consent agreement;
3. Whether the chancellor erred in not allowing evidence to be submitted at the hearing on Kenton’s motion for a new trial;
4. Whether the chancellor erred in allowing withholdings from Kenton;
5. Whether the chancellor erred in holding Kenton in contempt and requiring him to pay attorney’s fees;
6. Whether the chancellor erred in not reporting Katye’s felony bigamy and perjury to the proper authorities, as she mislead the court during trial, and she remarried pri- or to the final disposition of the motion for a new trial;
7. Whether the chancellor erred in not determining assets or liabilities as marital or nonmarital;
8. Whether the chancellor erred in allowing questioning of Kenton’s ex-wife as to matters protected under the spousal privilege;
9. Whether the chancellor erred in not reporting counsel for discipline; and
10.Whether the chancellor erred in not granting involuntary dismissal of Katye’s claim due to her attorney’s violation of certain rules of procedure.

Katye asserts that the majority of the issues set forth in Kenton’s brief are not properly before this Court. She also maintains that the consent agreement was valid, and that the chancellor did not err in granting the divorce on the ground of irreconcilable differences or in denying Kenton’s post-trial motion to reconsider.

¶ 8. A chancellor’s determinations in an irreconcilable differences divorce will not be disturbed as long as the findings are “supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous!,] or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002) (quoting Kilpatrick v. Kilpatrick, 732 So.2d 876, 880 (¶ 13) (Miss.1999)). Additional standards of review will be discussed as needed.

I. Whether Kenton’s appeal and the issues presented therein are properly before this Court.

¶ 9. As a preliminary matter, we address Katye’s assertions that a majority of Kenton’s issues are not properly before the Court based on his Notice of Appeal, and that his appeal should be dismissed for his failure to file record excerpts.

A. Notice of Appeal

¶ 10. Katye asserts that most of the issues raised in Kenton’s brief should not be considered because they were not designated in his Notice of Appeal and are not properly before this Court. Kenton’s Notice of Appeal stated that he appealed “from the final judgment entered in this case on January 4, 2012, and the denial of the Motion for Judgment Notwithstanding the Verdict or, in the Alternative, for New Trial.” As we understand it, Kenton is referring to the denial of his motion to reconsider or for a new trial, as he did not file a motion for judgment notwithstanding the verdict. Some of the issues presented on appeal were included in Kenton’s motion to reconsider, but the others were included generally in his motion for contempt, motion to expunge the consent agreement, and motion to expunge the order of withholding. Those motions were not designated specifically in the Notice of Appeal. However, the chancellor’s order dated January 4, 2012, generally denied those motions, and the January 4 order was designated in the Notice of Appeal.

¶ 11. Rule 3(c) of the Mississippi Rules of Appellate Procedure provides that a notice of appeal “shall designate as a whole or in part the judgment or order appealed from.” Miss. R.App. P. 3(c). However, this Court has held that if the “statement of issues and appellant brief clearly show” that a certain order or issue is being appealed, we will consider the merits of the issue. Fletcher v. Lyles, 999 So.2d 1271, 1277 (¶ 25) (Miss.2009) (citing K.D.F. v. J.L.H., 933 So.2d 971, 974 n. 2 (Miss.2006)). See also Herndon v. Miss. Forestry Comm’n, 67 So.3d 788, 795 (¶ 19) (Miss.Ct.App.2010). Under Rule 3(c), “[a]n appeal shall not be dismissed for informality of form or title of the notice of appeal.” Fletcher, 999 So.2d at 1277 (¶ 25) (quoting Miss. R.App. P. 3(c)). Because the chancellor’s January 4 order generally denied Kenton’s post-trial motions, which included the issues raised on appeal, and in light of this Court’s standard set forth in Fletcher, we will consider the merits of each of Kenton’s issues on appeal, unless they are otherwise procedurally barred.

B. Record Excerpts

¶ 12. Katye asserts that Kenton’s appeal should be dismissed for failure to comply with Rule 30 of the Mississippi Rules of Appellate Procedure, which requires parties to file record excerpts with briefs on appeal. Katye is correct that Kenton failed to file record excerpts with his initial brief. However, upon recognition of the error, Kenton filed record excerpts and corrected the mistake. Katye did not provide any support for her assertion that the appeal should be dismissed for failure to file record excerpts, and “this Court does not consider unsupported assignments of error.” O.W.O. Investments, Inc. v. Stone Inv. Co., Inc., 32 So.3d 439, 446 (¶ 19) (Miss.2010); Touchstone v. Touchstone, 682 So.2d 374, 380 (Miss.1996).

II. Whether the consent agreement was valid, and whether the chancellor erred in granting the divorce on irreconcilable differences.

¶ 13. Kenton claims that the parties’ consent agreement to an irreconcilable differences divorce was invalid because it was not properly notarized and because the agreement was not signed by counsel. On that basis, he argues the chancellor erred in granting the divorce on the ground of irreconcilable differences. Katye claims that the consent agreement is not subject to appellate review, but if this Court reviews it, it met the statutory requirements for validity.

¶ 14. Mississippi Code Section 93-5-2 pertains to consent agreements for irreconcilable differences divorces and provides the following:

(3) If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto....

Miss.Code Ann. § 93-5-2(3) (Rev.2004). According to Section 93-5-2, a consent agreement for an irreconcilable differences divorce must (1) be in writing, (2) be signed by both parties, (3) state that the parties voluntarily consent to have the court decide issues upon which they cannot agree, (4) specifically set forth those issues upon which the parties cannot agree, and (5) state that the parties understand that the court’s decision will be binding. Id. See also Cassibry v. Cassibry, 742 So.2d 1121, 1124 (¶ 9) (Miss.1999). The consent agreement in question was in writing, signed by both parties, and contained the required statements that the parties voluntarily consented to have the court determine the issues listed therein and that the parties understood that the court’s decision would be a “binding and lawful judgment.” Kenton’s claim that the document is invalid because it was not notarized properly and not signed by the attorneys is without merit, because Section 93-5-2 does not require the consent agreement to be notarized or signed by an attorney.

¶ 15. Kenton asserts that the attorneys were required to sign the consent agreement in accordance with Mississippi Rule of Civil Procedure 11(a) and Uniform Chancery Court Rule 5.03. Rule 11(a) applies to motions and pleadings and requires the signature of the attorney filing the document. Miss. R. Civ. P. 11(a). Rule 5.03 requires counsel for all parties to approve and sign a “consent judgment” before presenting it to the chancellor. Unif. Chancery Court R. 5.03. The consent agreement at issue is not a motion, pleading, or a consent judgment; therefore, the rules Kenton cited are not applicable, and an attorney’s signature was not required. The consent agreement complied with the requirements of Section 93-5-2 and was valid.

¶ 16. If Kenton wanted to withdraw or expunge the agreement, according to Section 93-5-2(3), he was required to obtain leave of court to do so. Miss. Code Ann. § 93-5-2(3) (Rev.2004). See also McDuffie v. McDuffie, 21 So.3d 685, 689 (¶ 7) (Miss.Ct.App.2009). The agreement itself also included language requiring the parties to obtain leave of court to withdraw the agreement. Kenton did not file a motion for leave of court as required; he waited until after the amended final judgment had been entered to file a motion to expunge the consent agreement. Kenton’s attempt to withdraw or expunge the consent agreement after the divorce decree had been entered did not invalidate the agreement. See Jemigan v. Young, 61 So.3d 233, 236 (¶14) (Miss.Ct.App.2011). “[Wjavering on whether a divorce should be entered may often occur and does not invalidate the divorce.... What is important is that agreement be validly expressed on the day that the chancellor is considering the issue.” Id. (quoting Sanford v. Sanford, 749 So.2d 353, 356 (¶ 11) (Miss.Ct.App.1999)). The chancellor did not err in granting the divorce on irreconcilable differences because the consent agreement was valid on the day the order of divorce was entered.

III. Whether the chancellor erred in denying Kenton’s motion to amend the pleadings.

¶ 17. Kenton asserts that the chancellor erred in denying his motion to amend the pleadings to reflect the evidence, as allowed under Mississippi Rule of Civil Procedure 15(b), including the withdrawal of the irreconcilable differences consent agreement. The record contains no “motion to amend the pleadings”; accordingly, Rule 15 does not apply. If Kenton is referring to the motion to expunge the consent agreement, that claim was addressed in the previous section — the agreement was valid, and his attempt to withdraw the agreement was improper. If Kenton is referring to his cross-complaint/counterclaim, that document was untimely filed and was not properly before the court. A judge has discretion in allowing a counterclaim to be submitted. Miss. R. Civ. P. 13(e), (f). However, a request for an order must be made in a written motion stating the relief sought and the grounds for such relief. Miss. R. Civ. P. 7(b)(1). Kenton filed his counterclaim thirty-six days after the final judgment was entered, without a motion asking the court to allow him to amend the pleadings or to allow the untimely counterclaim. Therefore, the counterclaim was not properly before the court, and the chancellor did not abuse his discretion in refusing to allow it. Kenton’s claim that the chancellor erred in denying his motion to amend the pleadings to reflect the evidence is without merit.

IV. Whether the chancellor erred in denying Kenton’s post-trial motion for reconsideration.

¶ 18. After the chancellor’s amended opinion and final judgment had been entered on October 12, 2011, Kenton immediately filed a Motion to Reconsider, Motion for a New Trial, to Alter or Amend Judgment, and Motion for Stay of Proceedings to Enforce a Judgment. After a hearing, the chancellor denied the motion, which was the basis of Kenton’s appeal. Naturally, it is Katye’s position that the chancellor was correct in denying Kenton’s post-trial motion for reconsideration or a new trial. We agree.

¶ 19. In his motion to reconsider, Kenton alleged the chancellor made several errors in the findings of fact and conclusions of law. Kenton also asserted that Katye and her witnesses made numerous misrepresentations and intentionally misled the court. The chancellor found those claims to be without merit. This Court will not overturn the chancellor’s finding of fact unless it was “manifestly wrong or clearly erroneous.” Duncan v. Duncan, 774 So.2d 418, 419 (¶ 4) (Miss.2000).

¶ 20. Rule 60(a) pertains to the correction of clerical mistakes in a judgment or order, and Rule 60(b) provides for amendment to an order on the basis of fraud, misrepresentation, mistake, or newly discovered evidence. Miss. R. Civ. P. 60(a), (b). Rule 60(b) motions are reserved for “exceptional circumstances,” and a party is not entitled to relief simply because he is unhappy with a judgment. Perkins v. Perkins, 787 So.2d 1256, 1261 (¶ 9) (Miss.2001) (citing King v. King, 556 So.2d 716, 722 (Miss.1990)). “[A] Rule 60(b) motion should be denied where it is merely an attempt to relitigate a case.” Askew v. Askew, 699 So.2d 515, 519 (¶ 17) (Miss.1997) (citing Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984)). Under Rule 59, the trial judge has discretion to grant a new trial or to amend the judgment “if convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand.” Rogers v. Morin, 791 So.2d 815, 822 (¶ 22) (Miss.2001) (quoting Mayoza v. Mayoza, 526 So.2d 547, 549 (Miss.1988)). A Rule 59 motion for a new trial also may be based on newly discovered evidence.

A motion for a new trial based on new evidence is an extraordinary motion, and the requirements of the rule must be strictly met. The motion may not be granted unless (1) the evidence was discovered following the trial; (2) due diligence on the part of the movant to discover the new evidence is shown or may be inferred; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; (5) the evidence is such that a new trial would probably produce a new result.

Smullins v. Smullins, 77 So.3d 119, 125 (¶ 23) (Miss.Ct.App.2011) (quoting Moore v. Jacobs, 752 So.2d 1013, 1017 (¶ 18) (Miss.1999)). Review of a trial judge’s denial of a Rule 60 motion for relief or a Rule 59 motion for a new trial is limited to abuse of discretion. Perkins, 787 So.2d at 1261 (¶ 9) (internal citations omitted).

¶ 21. At the hearing on Kenton’s motion for a new trial, Kenton discussed a myriad of issues that he called “fraud” on the court. In actuality, Kenton took that opportunity to point out each fact in the chancellor’s findings of fact with which he disagreed. The transcript from the hearing indicates that the chancellor listened to each of Kenton’s points and allowed Kenton to make each of his arguments in detail — regardless of how frivolous or repetitive. As to almost every point, Kenton admitted that he knew of the evidence at the time of trial. Kenton’s main issue was a retirement account in the amount of $1,332, which Katye had not disclosed in her Rule 8.05 disclosures. Kenton claimed that Katye’s failure to disclose the account constituted fraud upon the court. However, he admitted that the account was “an insignificant amount in [his] opinion.” Ka-tye’s attorney maintained that Katye was not aware of the retirement account.

¶ 22. First, we note that Kenton did not explain why he did not know about or could not have discovered the retirement account prior to trial. Second, the amount of the account is insignificant and does not merit reopening the case. Applying the case of Trim v. Trim, 33 So.3d 471 (Miss.2010), the chancellor explained that, to be significant enough to warrant reopening a case, false information on a Rule 8.05 disclosure “must be intentionally and substantially false.” The chancellor found that the retirement account was likely overlooked, and it was not significant enough to reopen the trial and would not warrant a change in the prior adjudications of the court. The chancellor’s decision was not an abuse of his discretion.

¶ 23. In his final order entered January 4, 2012, the chancellor noted that all of the issues raised in Kenton’s post-trial motions were either supposed clarifications of his interpretation of the facts of the case, had been addressed in detail in the chancellor’s order, or both. The chancellor refused to consider any arguments or evidence that could have been raised earlier. The chancellor addressed each of Kenton’s arguments in turn, finding them to be without merit and to have no effect on his prior judgment. Kenton failed to introduce new, material evidence that could not have been known prior to trial that would have had an effect on the outcome, which would warrant a new trial under Rule 59. Kenton failed to prove fraud or other misconduct that would warrant relief under Rule 60(b). Kenton’s motion was “merely an attempt to reliti-gate” the case, and the chancellor was correct to deny it. See Askew, 699 So.2d at 519 (¶ 17). The chancellor did not abuse his discretion in denying Kenton’s motion to reconsider or for a new trial.

Y. Whether the chancellor erred in not allowing evidence to be submitted at the hearing on Kenton’s motion for a new trial.

¶ 24. Kenton asserts that the chancellor erred by not allowing evidence to be submitted at the hearing on his motion for a new trial. At the beginning of the hearing, Kenton specifically asked the judge, “Can I present exhibits at this time also?” The judge responded, “Sure.” At one point, Kenton was discussing an exhibit, and the chancellor went so far as to ask Kenton if he wanted to bring the exhibit up to him. Further, most of the things Kenton discussed already were in the record. There is no evidence that the chancellor did not allow new evidence to be introduced, and this issue is without merit.

VI. Whether the chancellor erred in allowing withholdings from Kenton.

¶ 25. Kenton asserts that the chancellor erred in allowing withholdings from his paycheck because he was not in arrears. Mississippi Code Section 93 — 11— 103 provides, “Upon entry of any order for support by a court of this state ... issued or modified or found to be in arrears ... the court entering such order shall enter a separate order for withholding which shall take effect immediately.” Miss.Code Ann. § 93-11-103(2) (Rev.2004) (emphasis added). Section 93-11-103(2) is mandatory and requires that a separate order for withholding be entered following the entry of an order for support. This applies to all orders issued or modified, not only to those found to be in arrears. See Meeks v. Meeks, 757 So.2d 364, 369 (¶ 25) (Miss.Ct.App.2000) (“Because of the mandatory lan guage of the statute on withholding orders ... we find clear error in failing either to enter such an order or to give reasons as to why it was not justified.”); Curtiss v. Curtiss, 781 So.2d 142, 146 (¶ 14) (Miss.Ct.App.2000) (An earlier version of the stat ute “required a withholding order only in the event of a delinquency or on the obli-gor’s request[,]” but the statute containing the mandatory language went in to effect July 1, 1999, and it “requires a withholding order from the inception.”). The chancellor correctly complied with Section 93-11-103(2) when he entered the order for withholding several days after the order for support was entered, and this issue is without merit.

VII. Whether the chancellor erred in holding Kenton in contempt and assessing attorney’s fees to him.

¶ 26. After the chancellor’s original opinion and final judgment was entered on September 2, 2011, Katye filed a motion to reconsider. A hearing on Ka-tye’s motion was held on September 29, and Katye’s attorney asked that Kenton be held in contempt of court for failing to comply with the court’s earlier temporary order and for perjuring himself under oath, based on his failure to make certain financial disclosures about the former marital home, which Katye had been awarded in the divorce. The chancellor found that Kenton had made intentional misrepresentations to the court. Kenton asserts that the chancellor erred by holding him in contempt and requiring him to pay Katye’s attorney’s fees associated with the hearing. A trial judge’s award of attorneys’ fees is reviewed under the abuse of discretion standard, and the award of attorneys’ fees must be supported by credible evidence. Miss. Power & Light Co. v. Cook, 832 So.2d 474, 486 (¶ 39) (Miss.2002).

¶ 27. As a preliminary matter, Kenton claims that he “was not allowed to be heard” at the September 29 hearing and that he was denied due process because “the matter was discussed ex parte with counsel.” There is no evidence that the attorneys had any ex parte communication with the chancellor, but taking Kenton’s claim as true, his attorney was present to participate in any discussions. Kenton did not provide any evidence to support this claim, and “this Court does not consider unsupported assignments of error.” O.W.O. Investments, 32 So.3d at 446 (¶ 19); Touchstone, 682 So.2d at 380.

¶ 28. In her motion and at the hearing, Katye alleged that Kenton had failed to disclose several issues pertaining to taxes, mortgage interest payments, and rental of the former marital home. Based on the evidence presented, the chancellor found that Kenton had failed to disclose “the extent of his failure to comply” with the court’s temporary order, and that he intentionally had misrepresented the “status and net value” of the home. The chancellor ordered Kenton to make certain repayments to Katye and to pay $750 toward her attorney’s fees, finding that Kenton was in contempt of court for his misrepresentation of the status of the property and for his failure to comply with the temporary order.

¶29. There is no evidence that the chancellor abused his discretion in holding Kenton in contempt and ordering him to pay $750 in attorney’s fees. Kenton had failed to comply with the court’s temporary order from the time of the trial on June 1 until the chancellor’s original opinion was entered on September 2. The chancellor found that the previously entered temporary order was still in effect after the trial in June until his final order was entered, thus, Kenton was required to make all payments included in the temporary order during that time. We find that there was substantial evidence to support the chancellor’s decision, and he did not abuse his discretion in assessing Kenton $750 in attorney’s fees.

VIII. Whether the chancellor erred by not reporting Katye’s alleged felony bigamy and perjury.

¶ 30. According to Kenton, Katye remarried her first husband after the chancellor’s order granting the divorce was entered, but while Kenton’s motion to reconsider was pending. Upon learning that Katye had remarried, Kenton sought to withdraw his consent to the irreconcilable differences divorce, obtain a divorce on fault grounds, have Katye held in contempt of court, and have her charged with perjury and bigamy. The chancellor found no merit in Kenton’s allegations and took no further action. Kenton asserts that the chancellor erred in failing to report Katye’s alleged felony bigamy and perjury to the proper authorities.

A. Perjury

¶ 31. When judges are aware of perjury, they have a duty to consider sanctions or report the perjury to the district attorney when necessary. See Jones v. Jones, 995 So.2d 706, 711-12 (¶¶ 13-18) (Miss.2008). Kenton’s allegations of perjury relate to Katye’s testimony about her relationship with her first husband,- Michael. On June 1, Katye testified that she and Michael were not in a relationship, but she was trying to give him a second chance regarding being a father to Cameron. Ka-tye testified that Michael wanted to have a relationship with her, he was attending a family Sunday school class with Katye and Cameron, and he was “trying to prove himself’ to Katye. Katye said she did not have any “intentions” regarding a relationship with him. Kenton speculates that Katye must have lied about her relationship with Michael, because Katye and Michael were married in October, and a relationship could not have developed in that time frame. Other than his own opinion, Kenton provides no support for his allegations of perjury against Katye.

¶ 82. This Court gives deference to a chancellor’s findings in regard to witness testimony, because the chancellor is able to observe and “personally evaluate the witnesses’ testimony and the parties’ behavior.” Gable v. Gable, 846 So.2d 296, 299 (¶ 12) (Miss.Ct.App.2003) (citing Sobieske v. Prestar, 755 So.2d 410, 413 (¶ 11) (Miss.2000)). See also Woodell v. Parker, 860 So.2d 781, 785 (¶ 10) (Miss.2003) (deference given to trial court’s determination of “the weight and credibility of witnesses when there is conflicting testimony”). The chancellor heard the witnesses at trial, reviewed the evidence, listened to the arguments on the parties’ motions for reconsideration, and concluded that Kenton’s allegations were without merit. In his final order, the chancellor addressed Ka-tye’s remarriage by stating “Katye had relied on the two judgments called ‘Final’ ” when she remarried her first husband. The chancellor did not abuse his discretion by not issuing sanctions or reporting the alleged perjury to the district attorney. This issue is without merit.

B. Bigamy

¶ 33. Kenton asserts that, because he had filed a motion to reconsider, the judge’s order of divorce was stayed and was not final, so Katye’s remarriage constituted bigamy. The title of Kenton’s motion to reconsider requested a stay of proceedings, but he did not set forth any arguments in that regard within the motion. The chancellor never granted the stay, and the motion was denied summarily when the motion for reconsideration or a new trial was denied. Rule 62(b) provides that “[i]n its discretion ... the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion to alter or amend a judgment made pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60(b).... ” Miss. R. Civ. P. 62(b) (emphasis added). The rule does not provide for an automatic stay upon the filing of a Rule 59 or Rule 60 motion. Therefore, no stay was in place that would have rendered the chancellor’s final judgment of divorce invalid. Kenton’s allegation of bigamy is without merit. Further, Kenton provides no support for the argument that it was the chancellor’s duty to report Katye’s alleged bigamy to proper authorities, and “this Court does not consider unsupported assignments of error.” O.W.O. Investments, 32 So.3d at 446 (¶ 19); Touchstone, 682 So.2d at 380.

IX. Whether the chancellor erred in not determining assets or liabilities as marital or nonmarital.

¶ 34. Kenton asserts that, in the distribution of assets and liabilities, the chancellor failed to determine whether the assets and liabilities were marital or non-marital. Kenton did not raise this in any of his numerous post-trial motions or at the hearing on his motion for a new trial. Issues raised for the first time on appeal are procedurally barred. Wilburn v. Wilburn, 991 So.2d 1185, 1191-92 (¶¶ 13-14) (Miss.2008). “The well-recognized rule is that a trial court will not be put in error on appeal for a matter not presented to it for decision.” McDonald v. McDonald, 39 So.3d 868, 885 (¶ 54) (Miss.2010) (quoting Mills v. Nichols, 467 So.2d 924, 931 (Miss.1985)). Regardless, this issue is without merit, as the chancellor did address marital and nonmarital property in his distribution of property.

X. Whether the chancellor erred in allowing questioning of Kenton’s ex-wife as to matters protected under the spousal privilege.

¶ 35. Kenton’s ex-wife, Christa Saul-ters, testified on Kenton’s behalf as a character witness. On cross-examination, Ka-tye’s attorney asked Christa why she and Kenton divorced, and Kenton’s attorney objected on relevancy grounds. Katye’s attorney argued that, because Christa was a character witness, questions about Kenton’s character should be allowed. The chancellor agreed and overruled the objection. Kenton asserts that the chancellor erred in allowing Christa to testify regarding matters protected under the spousal privilege.

¶ 36. The spousal privilege is codified in Mississippi Code Section 13-1-5, which provides that spouses generally are not competent witnesses against each other. See Miss. Code Ann. § 13-1-5 (Rev. 2002). However, Section 13-1-5 “does not prevent former spouses from testifying against each other, even relating to acts during the marriage, so long as the testimony was not privileged communication.” Butt v. State, 986 So.2d 981, 986 (¶ 21) (Miss.Ct.App.2007) (citing Holden v. State, 399 So.2d 1343, 1345 (Miss.1981); Dycus v. State, 396 So.2d 23, 28 (Miss.1981)). The husband-wife privilege prevents a “person’s spouse, or former spouse, from testifying as to any confidential communication between that person and that person’s spouse.” Miss. R. Evid. 504(b). “A communication is confidential if it is made privately by any person to that person’s spouse and is not intended for disclosure to any other person.” Miss. R. Evid. 504(a).

¶ 37. A former spouse’s testimony as to nonconfidential matters is not protected by the spousal privilege. See Butt, 986 So.2d at 986 (¶ 21). In Butt, the Court of Appeals held that Rule 504(b) did not preclude an ex-wife from testifying against her ex-husband where she “did not testify as to communication ... let alone a confidential communication” between herself and her ex-husband, rather, she testified about the “events surrounding her marriage and the eventual end of her marriage^]” Id. at 986 (¶ 28). In the case at hand, Christa was called by Kenton as a character witness. The only objection came on cross-examination when Christa was asked why she and Kenton divorced. Like the ex-wife in Butt, Christa testified “to events surrounding her marriage and the eventual end of her marriage.” Id. Christa did not mention specific conversations or statements made by Kenton.

¶ 38. Kenton’s attorney objected to Christa’s testimony about the reason for their divorce as irrelevant. Because part of the reason for their divorce involved Kenton’s treatment of Christa’s child, her testimony was relevant as to Kenton’s character and child custody. Further, the relevance and admissibility of evidence is within the sound discretion of the chancellor. Jackson v. Jackson, 732 So.2d 916, 924 (¶ 14) (Miss.1999); Terrain Enters., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995)). This Court will not reverse the chancellor’s decision “unless abuse of that discretion is shown.” Terrain Enters., 654 So.2d at 1131. We find that Christa did not testify to any confidential communications that would have been protected under Mississippi Rule of Evidence 504 or Mississippi Code Section 13-1-5, and the chancellor did not abuse his discretion in allowing Christa to testify.

XI. Whether the chancellor erred in failing to report judicial and attorney misconduct.

¶ 39. Kenton alleges wrongdoing by Katye’s attorney, Sheila Smallwood, and he asserts that the chancellor erred in not reporting Smallwood for discipline as required under the Code of Judicial Conduct. He also asserts that the chancellor erred in not granting involuntary dismissal of Katye’s claim under Mississippi Rule of Civil Procedure 41(b) due to her attorney’s violations of “these rules.”

¶ 40. Kenton’s allegations of wrongdoing by Smallwood include: that she knowingly included false statements in the findings of fact submitted to the chancellor; she continued to represent Katye while knowing Katye had committed perjury; and she failed to sign the consent agreement. Kenton filed a complaint against Smallwood with the Mississippi Bar, which was dismissed for lack of clear and convincing evidence. Therefore, Kenton’s allegations of attorney misconduct against Smallwood are barred under the doctrine of res judicata.

¶ 41. Regarding alleged judicial misconduct, Kenton claims that, while acting in her capacity as a municipal judge, Small-wood obtained information about Kenton being charged with driving under the influence and used that information against him in the divorce proceedings. Kenton’s DUI would have been public information, and Smallwood would have been able to access the information regardless of her position as a municipal judge. The chancellor made a finding that Smallwood did not commit any wrongdoing. This Court will not overturn the chancellor’s finding of fact unless it was “manifestly wrong or clearly erroneous.” Duncan, 774 So.2d at 419 (¶ 4). Nothing in the record suggests that the chancellor’s finding was erroneous. Kenton’s allegations of judicial misconduct against Smallwood are without merit.

¶ 42. Finally, Kenton alleges that the chancellor erred in not reporting Small-wood for alleged wrongdoing and in failing to dismiss the case. Because the chancellor found no evidence of wrongdoing by Smallwood, he had no reason to report her or to dismiss the case. Kenton’s allegations of judicial and legal misconduct by Katye’s attorney and by the chancellor are without merit.

Conclusion

¶ 43. As discussed herein, this Court finds that each of Kenton’s issues is procedurally barred, without merit, or both. We affirm the chancellor’s grant of divorce on the ground of irreconcilable differences. Finding no error, we also affirm the chancellor’s denial of Kenton’s motion for reconsideration and other post-trial motions.

¶ 44. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.

      . Regardless, the notary and seal used were sufficient, because chancery clerks are by statute ex-offico notaries public and are permitted to use the seal of their office to notarize documents. Miss.Code Ann. § 25-33-17 (Rev.2010).

      . A consent judgment is a final judgment, more like an agreed order, which "must be approved and signed by counsel for all parties ... before being presented to the Chancellor for his signature.” Unif. Chancery Court R. 5.03. A consent agreement is like a stipulation of facts, by which the parties indicate how they wish to proceed on certain issues, but leave other issues to the chancellor and await his final judgment.

      . Mississippi Code Section 13-1-5, provides:
      Husbands and wives may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. Either spouse is a competent witness and may be compelled to testify against the other in any criminal prosecution of either husband or wife.... But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both.
      Miss.Code Ann. § 13-1-5 (Rev.2002).

      . In regard to “these rules,” Kenton specifically cited Mississippi Rules of Civil Procedure 5, 6, 11, and 62; Uniform Chancery Court Rule 5.03; and “many Rules of Evidence and Rules of Professional Conduct.”

      . Katye's record excerpts included a letter from the Mississippi Bar notifying Smallwood that the matter against her had been dismissed and that the decision was not appeal-able. The letter is dated April 13, 2012, which was after Kenton’s Notice of Appeal was filed, so it is not in the record. This Court takes judicial notice of the letter and the status of the matter against Smallwood before the Mississippi Bar. See Miss. R. Evid. 201. This Court often takes notice of the status of cases in other courts or agencies involving the same parties or related to the matter at hand. See Miss. Bar v. Gautier, 83 So.3d 1280, 1281 (¶ 3) (Miss.2011) (taking judicial notice of the fact that no appeal had been filed); Miss. Comm'n on Judicial Performance v. DeLaughter, 29 So.3d 750, 756 n. 4 (Miss.2010) (record did not include evidence of DeLaughter’s conviction; Court took judicial notice of the record in another case before it that included a federal court's judgment convicting DeLaughter); Smith v. Dor

        sey, 599 So.2d 529, 548 (Miss.1992) (Supreme Court took judicial notice that final judgment had been entered in interpleader action in federal court involving the funds at issue). See also Opolca v. Immigration & Naturalization Serv., 94 F.3d 392, 394-95 (7th Cir.1996) (citing the power of courts to take judicial notice, at any stage of the proceedings, of relevant decisions of other courts and administrative agencies that are directly related to the matter at hand) (internal citations omitted).


author: CHANDLER, Justice,

text:
    Stanley GILMORE a/k/a Stanley Tremaine Gilmore a/k/a “Money” v. STATE of Mississippi.
    No. 2011-KA-01702-SCT.
    Supreme Court of Mississippi.
    June 27, 2013.

      Frank G. Vollor, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.

      Before WALLER, C.J., CHANDLER and KING, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. Stanley Gilmore was convicted of aggravated assault and possession of a weapon by a convicted felon on September 7, 2011, in the Circuit Court of Copiah County. Gilmore stipulated that he previously had been convicted of two separate felonies and that he had shot Delwin Smith four times in self-defense. Gilmore appealed his conviction, raising numerous errors. We reverse and remand for a new trial on both counts, because Gilmore was prejudiced by the introduction of inadmissible evidence of a prior conviction.

FACTS

¶ 2. In March of 2011, Delwin Smith and Ronnie Thompson worked together as promoters for a rap concert in Port Gibson, Mississippi, and agreed to split the proceeds from the concert evenly. During the concert, Stanley Gilmore (also known as “Money”) told Thompson that he saw Smith’s brother pocketing ticket money from one of the doors. That night, Smith and Thompson had a dispute regarding the amount of money they had split. On March 28, 2011, Smith went to Thompson’s house to discuss the matter. Smith and Thompson spoke outside the house at first. At some point, Gilmore came outside, Thompson went back inside, and Smith was shot four times and severely wounded.

¶ 3. Smith testified that he was not angry when he arrived at Thompson’s house and only wanted to resolve the disagreement. He claimed that, after an initial friendly greeting, Gilmore began to “cop an attitude” and “wanted to get violent.” When Smith began to back away, Gilmore pulled a gun out of the waist of his pants and shot Smith below the heart as Smith turned to leave. Smith fell to the ground, and Gilmore shot him two more times in his arm and in the hip. Smith said “Money, man, you ain’t got to shoot me.” Gilmore then shot him a fourth time in his side before fleeing. Thompson came outside, helped Smith off the ground and into a truck, and took him to the hospital. Although Smith was hit with only four bullets, he said he heard five shots and one of them missed, but not the first one. Smith maintained he did not take a gun to the house, made no threats toward Gilmore, and did not struggle with Gilmore over a gun.

¶ 4. Thompson testified that Smith was upset because, after the concert, Thompson told Smith he was not going to work with him anymore. When Smith came to the house, he was angry and said he was tired of hearing people “talking in the street” about his brother stealing money. He asked to talk to Gilmore, who came outside and told Smith what he had seen during the concert. Smith then threatened Gilmore, saying “I got wolves, I got killers, I got guns,” which Thompson understood to mean he had people who “would do something to people for him.” Thompson went inside to get another person named “Cool,” because he didn’t know what was “getting ready to go off.” At that point, Thompson heard a couple of gunshots, looked out the front-door peep hole, and saw Smith on the ground. Thompson called 911 and took Smith to the hospital.

¶ 5. Gilmore testified that he was upstairs talking to a family member over Facebook when Thompson called him downstairs. He claimed he was not carrying a gun, and that Smith was in a rage when he went outside. After Thompson went back in the house, Gilmore testified that Smith ran toward him with a gun. Gilmore then grabbed Smith’s hand, and a shot went off, hitting a blue and red Crown Victoria in the driveway. A tussle ensued, in which Smith and Gilmore wound up on the ground, and the gun fired several times as Gilmore wrestled to get the gun. Gilmore explained that he “grabbed [the gun] at an angle down pulling it towards out of [Smith’s] hand” and Smith fell on top of him. Gilmore got control of the gun, got up off the ground, saw Smith get up, and then “squeeze[d] the gun, but I can’t say I hit him.” Gilmore dropped the gun, ran down the street and called a friend who took him to Vicksburg. He fled instead of going the police “because I was seared of what he was going to do to me,” and because Smith told him “that his people work on the force” in Port Gibson and “that he’s paid those.” He believed Smith would somehow be able to use his influence to hurt him.

¶ 6. Freddie Yarbrough, a Claiborne County sheriffs deputy, testified that he investigated the scene the day of the shooting, and that he found no gun and saw no bullet holes in the Crown Victoria. Elbert Hyder, called by the State during rebuttal, testified that he drove up to the house during the incident and witnessed Gilmore holding a gun and backing away from the house, while Smith came around the back of the house with blood running down his back. Hyder did not hear any gunshots, and after pulling into the driveway to see if Gilmore was going to shoot Smith, he backed up and drove away, because he had children in the car with him.

¶ 7. Gilmore was convicted on both counts, and the trial court denied his motions for directed verdict and a new trial. Gilmore now raises the following errors: (1) that the verdict was against the overwhelming weight of the evidence, (2) that the trial judge erred in rejecting his requested lesser-included-offense instruction, (3) that the trial judge inadequately instructed the jury that the State had the burden of proving beyond a reasonable doubt that he did not act in self-defense, (4) that the trial judge erred in admitting evidence of a prior conviction of simple battery, and (5) that the State improperly presented evidence in its rebuttal case that it was required to present during its casein-chief. Moreover, he argues that, cumulatively, these errors merit reversal, even if none merits reversal standing alone.

1. Whether the verdict was against the overwhelming weight of the evidence such that the trial court abused its discretion by denying Gilmore’s motion for a new trial.

¶ 8. Smith argues the trial court should have granted his motion for a new trial, and that to uphold the verdicts would sanction an unconscionable injustice. Specifically, he claims the overwhelming weight of the evidence proved that Smith was the aggressor who threatened Gilmore with the gun, and that Gilmore acted in self-defense.

¶ 9. We review the denial of a motion for a new trial for abuse of discretion. Sheffield v. State, 749 So.2d 123, 127 (Miss.1999). We must view the evidence in the light most favorable to the verdict, and a new trial will be granted only in those “exceptional cases in which the evidence preponderates heavily against the verdict” and is “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (Miss.2005) (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947 (Miss.2000)). The evidence supporting the verdict must be extremely weak, tenuous, or doubtful for us to award a new trial. Dilworth v. State, 909 So.2d 731, 737 (Miss.2005). The “jury is the sole judge of the weight of the evidence and the credibility of the witnesses,” and it may choose to believe one witness over another. Ewing v. State, 45 So.3d 652, 655 (Miss.2010) (quoting Mohr v. State, 584 So.2d 426, 431 (Miss.1991)).

¶ 10. A person who “attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm” is guilty of aggravated assault. Miss.Code Ann. § 97-3-7(2)(a)(ii) (Rev.2006). Because Gilmore stipulated that he had caused bodily injury to Smith by shooting him four times, the State had to prove only that Gilmore “purposely or knowingly” shot Smith, and not in self-defense. The State provided ample evidence, primarily Smith’s detailed account, for a reasonable jury to believe that Gilmore purposely and knowingly shot Smith, that Gilmore was the aggressor, and that he did not act in self-defense. The jury, being the sole judge of witness credibility, was entitled to believe Smith’s story over Gilmore’s and Thompson’s stories. Further, certain facts in Gilmore’s testimony were contradicted by both Officer Yarbrough and Elbert Hyder, such as that the first shot hit a parked car in the driveway, that Gilmore dropped the gun at the scene, and the description of the clothes Gilmore was wearing. Just because the jury chose to believe Smith over Gilmore does not mean the verdict was based on extremely weak or tenuous evidence, and Gilmore’s evidence did not preponderate heavily against the verdict. Gilmore is not entitled to a new trial on aggravated assault.

¶ 11. Under our felony possession statute, a convicted felon is prohibited from possessing “any firearm.” Miss.Code Ann. § 97-37-5 (Rev.2006). Because Gilmore stipulated that he was a convicted felon who was not able to possess a firearm lawfully, the State needed only to prove that Gilmore had “willfully possessed a firearm.” Jones v. State, 920 So.2d 465, 473 (Miss.2006). Again, this was a fact question that the jury was entitled to decide in favor of the State. Smith testified that Gilmore had a gun on his person when he came outside, and that Gilmore had produced the gun and shot him. Even though Gilmore testified that he wrestled the gun away from Smith only in self-defense, the jury heard enough evidence that it reasonably could find that Smith’s story was true. In addition to Smith’s testimony, Hyder testified that he saw Gilmore holding the gun. The jury’s finding that Gilmore willfully possessed the firearm with which he shot Smith was not based on extremely weak or tenuous evidence, and we will not disturb that finding now. Gilmore’s claim in this issue is without merit.

2. Whether the trial court erred in refusing to instruct the jury on simple assault.

¶ 12. The trial court rejected Gilmore’s requested jury instruction on the lesser-included offense of simple assault. Gilmore argues that there was a sufficient evidentiary basis for a conviction of that lesser offense, and that the trial court was required to grant his request. Specifically, Gilmore points to his testimony that he did not know why Smith was angry, that he did not have a gun when he came down the stairs, that Smith first possessed the gun, and that Gilmore wrestled the gun away from Smith such that Smith was accidently shot several times. Gilmore also testified that, after he wrestled the gun away from Smith, he squeezed the trigger once—but could not say whether he hit Smith—before dropping the gun and running away. The State argues there was no evidentiary basis for a jury to find that Gilmore acted negligently, and that a negligence theory is inconsistent with Gilmore’s self-defense theory. In other words, Gilmore could not have negligently shot Smith in self-defense.

¶ 13. We review a trial judge’s denial of a Iesser-included-offense jury instruction de novo. Downs v. State, 962 So.2d 1255, 1258 (Miss.2007). While “[a] defendant is entitled to have jury instructions given which present his theory of the case,” we have held that “the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Newell v. State, 49 So.3d 66, 74 (Miss.2010) (quoting Hearn v. State, 3 So.3d 722, 738 (Miss.2008)). To be entitled to a Iesser-included-offense instruction, “a defendant must point to some evidence in the record from which a jury reasonably could find him not guilty of the crime with which he was charged and at the same time find him guilty of a lesser-included offense.” Goodnite v. State, 799 So.2d 64, 69 (Miss.2001). We must view the evidence in the light most favorable to the defendant, draw all reasonable inferences in his favor, and take into account “that the jury may not be required to believe any evidence offered by the State.” Fairchild v. State, 459 So.2d 793, 801 (Miss.1984). But if no reasonable jury could have found the defendant guilty of the lesser-included offense, we will uphold the denial of the proposed instruction. Id.

¶ 14. Even viewing this evidence in a light most favorable to Gilmore, Gilmore has not presented sufficient evidence of negligence. A person is guilty of simple assault if he “negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.” Miss.Code Ann. 97-3-7 (Rev.2006). “Once a deadly weapon is introduced, the distinction between simple and aggravated assault ... hinges upon whether the injuries were inflicted negligently or intentionally.” Jackson v. State, 684 So.2d 1213, 1230 (Miss.1996). We have stated that “[t]he recklessness or negligence contemplated by the statute is in the act itself’ and “does not refer to the subjective intent of the defendant.” Nobles v. State, 464 So.2d 1151, 1154 (Miss.1985). “Moreover, when serious or substantial bodily harm has resulted, we have been inclined to hold that the case is definitely one of aggravated assault.” Jackson, 684 So.2d at 1280 (citing Hutchinson v. State, 594 So.2d 17, 20 (Miss.1992); Harbin v. State, 478 So.2d 796, 800 (Miss.1985); Colburn v. State, 431 So.2d 1111, 1114 (Miss.1983)).

¶ 15. If all of the shots that hit Smith were fired as a result of the struggle, then Gilmore acted in self-defense, not out of negligence. In Nobles, we stated that a theory of self-defense is incompatible with a theory of negligence, in that “[t]he reckless or negligent belief that [the defendant] was acting in self defense is contra to the foundation of that defense, i.e., the reasonable belief of imminent bodily harm.” Nobles, 464 So.2d at 1154 (emphasis in original). If we assume Gilmore’s account that Smith attacked him is credible, then Gilmore’s self-defense struggle could not have been negligent, as he would have had a reasonable belief of imminent bodily harm.

¶ 16. It is possible, however, that, after the period of time in which Gilmore reasonably acted in self-defense (that is, after wrestling the gun away from Smith), Gilmore could have negligently (rather than intentionally) fired one more shot and hit Smith one more time, giving rise to a simple assault. Yet, Gilmore’s testimony that he squeezed the trigger once but did not know if he shot Smith is the only possible evidence of negligence and is too tenuous for a reasonable juror to have found that Gilmore acted out of negligence. We have stated that “a lesser-included offense instruction should never be granted on the basis of pure speculation.” Fairchild, 459 So.2d 793, 801 (Miss.1984). Again, we look to the act itself to determine negligence, and not to Gilmore’s subjective intent. Squeezing the trigger and hitting Smith caused serious bodily harm, and as such, we are “inclined to hold that the case is definitely one of aggravated assault.” Jackson, 684 So.2d at 1230. We affirm the trial court on this issue.

3. Whether the trial court adequately instructed the jury that the State had the burden of proving beyond a reasonable doubt that Gilmore did not act in self-defense.

¶ 17. Gilmore further argues that the requested simple-assault instruction, Instruction D-l, was the only instruction that adequately explained to the jury that the State had the burden to prove beyond a reasonable doubt that Gilmore did not shoot Smith in self-defense. Because D-l was rejected, he argues the instructions were defective in explaining his theory of self-defense to the jury and that he is entitled to a new trial. However, Gilmore does not claim that the admitted instructions did not adequately explain his theory of self-defense or were otherwise defective in stating the law, except that he argues they did not clearly state which party had the burden of proof regarding self-defense. While noting in its brief that this issue “caused us some concern,” the State argues that, taken together as a whole, the instructions adequately instructed the jury and that Gilmore was not denied a viable defense.

¶ 18. Jury Instruction 2 read:

The Court instructs the Jury that the law presumes every person charged with the commission of a crime to be innocent. This presumption places upon the State the burden of proving the defendant guilty of every material element of the crime with which he is charged. Before you can return a verdict of guilty, the State must prove to your satisfaction beyond a reasonable doubt that the defendant is guilty. The presumption of innocence attends the defendant throughout the trial and prevails at its close unless overcome by evidence which satisfies the jury of the defendant’s guilt beyond a reasonable doubt. The defendant is not required to prove his innocence.

(Emphasis added.) The trial court gave several additional instructions, namely Instructions 4, 5, 6, 7, and 9, which explained the law on self-defense. Further, the jury was instructed in Jury Instruction Number 11 that “a reasonable doubt may arise from the whole of the evidence, the conflict of the evidence, the lack of evidence, or the insufficiency of the evidence; but however it arises, if it arises, it is your sworn duty to find the Defendant ‘Not Guilty.’ ”

¶ 19. We review the denial or acceptance of a proposed jury instruction for abuse of discretion. Maye v. State, 49 So.3d 1124, 1129 (Miss.2010). Again, “[a] defendant is entitled to have jury instructions given which present his theory of the case,” but “the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Newell, 49 So.3d at 74. Jury instructions must be considered together, and if, when read as a whole, the instructions “fairly announce the law of the case and create no injustice, no reversible error will be found,” even if they do not perfectly describe the law. Maye, 49 So.3d at 1129 (quoting Rubenstein v. State, 941 So.2d 735, 784-85 (Miss.2006)).

¶ 20. In Pierce v. State, we granted a new trial where the defendant’s requested instruction, which explained that the State had the burden of proving the defendant did not act in self-defense, was denied. Pierce v. State, 289 So.2d 901, 902 (Miss.1974). We did so because “[tjhere was no other instruction, either for the State or for the defendant, setting out or dealing with the rule about which appellant desired that the jury be informed” and because the “omission was not cured by a reading of all of the instructions together.” Id. However, we previously have approved the precise language of Jury Instruction 2 and held it sufficient to instruct the jury that the State has the burden of proving that the defendant did not act in self-defense. In Maye v. State, the jury was not specifically instructed that the State bore the burden of proof on self-defense. Maye, 49 So.3d 1124, 1130 n. 1 (Miss.2010). However, just as in this case, Instruction Number 2 in that case stated that, ‘“the State [has] the burden of proving the defendant guilty of every material element of the crime ... ’ and that ‘[t]he defendant is not required to prove his innocence.’ ” Id. We held that “[t]his instruction survives the Pierce rule, since it informed the jury that it should not look to Maye to prove self-defense, but to the State to prove the lack thereof.” Id.

¶ 21. Gilmore contends that Jury Instruction 2, when read together with Jury Instruction 3, is misleading, because Instruction 2 instructs that the State must prove “every material element of the crime with which he is charged.” Because Instruction 3 provides a list of elements for the State to prove that does not include “and not in self-defense” or words to that effect, Gilmore argues the implication of the instructions, when read together, is that the State had to prove only the elements listed in Instruction 3 beyond a reasonable doubt. However, as was the case in Maye, any ambiguity here was resolved by the instruction that Gilmore was “not required to prove his own innocence.” Further, Instruction Number 11 made clear that, however a reasonable doubt arose, the jury was sworn to find Gilmore not guilty. We find that the jury was sufficiently instructed that the State bore the burden of proving beyond a reasonable doubt that Gilmore did not act in self-defense.

4. Whether the trial judge erred by allowing the State to question Gilmore about his prior assault conviction in Louisiana.

¶ 22. During the State’s cross-examination of Gilmore, the State asked Gilmore whether he was a violent person and then asked him about his conviction for battery against a former girlfriend in Louisiana. Gilmore’s counsel objected to both questions, arguing that Gilmore had not placed his character at issue prior to this point, and that he already had stipulated that he was a convicted felon. The State specifically argued to the trial court that it was using the conviction to impeach Gilmore’s statement that he was not a violent person, but also argued that “[t]hese are assault convictions which is violent. We’re trying crimes of violence which he says he’s not a violent person.”

¶ 23. The specific exchange between the State and Gilmore was as follows:

Q. Who is — I may be pronouncing this wrong, but do you know a Carnise Sanders?
A. Yes, that’s one of my kids’ mother’s [sic].
Q. You’ve never—
A. Actually I have two kids by her.
Q. And you’re not a violent person?
[Gilmore’s counsel immediately requested a conference with the judge. His objection was overruled]
Q. You were saying you had two children by her?
A. Yes.
Q. Have you ever admitted to battery on her?
A. We have had our disagreements.
Q. Well, you were not convicted in a court in Louisiana on simple battery on her?
A. It was a charge that I probably pleaded to get out of jail on it, yes, sir.

¶ 24. Gilmore argues this evidence was inadmissible character evidence under Rule 404(b), and that its admission prejudiced him such that he is entitled to a new trial. See Miss. R. Evid. 404(b). The State argues that this questioning was proper impeachment by a prior conviction under Rule 609(b), and that, in any event, the introduction of this evidence was harmless error because the jury already had been informed that Gilmore was a convicted felon. See Miss. R. Evid. 609(b).

¶ 25. “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Welde v. State, 3 So.3d 113, 116-17 (Miss.2009) (quoting Fisher v. State, 690 So.2d 268, 274 (Miss.1996)). “Reversal is proper only where such discretion has been abused and a substantial right of a party has been affected.” Johnson v. State, 666 So.2d 499, 503 (Miss.1995). Absent an exception, “[generally, evidence of any crime other than the one for which the defendant is being tried is not admissible.” Welde, 3 So.3d at 117.

A. Was this evidence admissible under Rule i0í(B)?

¶ 26. Mississippi Rule of Evidence 404(B) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith,” but may “be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Miss. R. Evid. 404. We employ a two-part test for determining when evidence of other crimes is admissible under Rule 404. Welde, 3 So.3d at 117. First, “the evidence offered must ... be relevant to prove a material issue other than the defendant’s character,” and second, “the probative value of the evidence must outweigh the prejudicial effect.” Id. (quoting Crawford v. State, 754 So.2d 1211, 1220 (Miss.2000)).

¶ 27. No connection exists between the five-year-old Louisiana conviction for simple battery against Gilmore’s girlfriend and the current aggravated-assault charge. The State does not argue that the conviction was introduced to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” The trial transcript indicates the State sought to admit the evidence at least in part as character evidence — that is, in order to suggest that Gilmore acted in conformity with the prior conviction— when it argued to the trial judge: “We’re trying crimes of violence which he says he’s not a violent person.” This was clearly impermissible.

¶ 28. Although the State also sought to impeach Gilmore about whether or not he was a violent person, Gilmore’s credibility in regard to that answer would not be a material issue in the case. Moreover, to impeach Gilmore, the State, not Gilmore, first sought to put Gilmore’s character at issue, a tactic which we have long held to be impermissible. Johnson, 666 So.2d at 503; Tobias v. State, 472 So.2d 398, 400 (Miss.1985). While the State does not argue that it was seeking to prove an element of felony possession of a firearm, it bears noting that this element was established by Gilmore’s stipulation. Thus the prejudicial effect of this testimony would have far outweighed its probative value. This evidence was not admissible under Rule 404.

B. Was this evidence admissible under Rule 609(1)(B)?

¶ 29. Mississippi Rule of Evidence 609 governs impeachment of a defendant with a prior conviction, and “restricts the use of convictions to those for which the penalty is death or imprisonment for one year or more or those involving ‘dishonesty or false statement.’ ” Blackman v. State, 659 So.2d 583, 585 (Miss.1995) (quoting Miss. R. Evid. 609). In this case, Gilmore was convicted of simple battery in Louisiana, a crime which carries a maximum potential punishment of being “imprisoned for not more than six months.” La.Rev.Stat. Ann. § 14:35.

¶ 30. The State relies generally on the abuse-of-discretion standard of review and asserts that it “thinkfe] this conviction via guilty plea was admissible by virtue of’ Rule 609(1)(B). The State cites no law supporting this assertion. Neither does it argue that simple battery is a crime involving dishonesty or a false statement, nor address how Gilmore’s conviction of a crime carrying a maximum penalty of six months was admissible to impeach Gilmore’s credibility under Rule 609. This State’s argument that this evidence was admissible under Rule 609 is completely without merit.

C. Was admission of this evidence harmless error?

¶ 31. The State falls back on the claim that, even if this evidence was inadmissible, its admission did not prejudice Gilmore and amounted to harmless error. Specifically, because Gilmore stipulated to the jury that he was a convicted felon, then testimony regarding his conviction for simple assault would have come as no prejudicial surprise to the jury.

¶ 32. “Where an error is deemed harmless, reversal is not warranted.” Williams v. State, 991 So.2d 593, 606 (Miss.2008). However, this Court has narrowly defined harmless error, stating that “[a]n error is harmless only when it is apparent on the face of the record that a fair minded jury could have arrived at no verdict other than that of guilty.” Forrest v. State, 335 So.2d 900, 903 (Miss.1976). Relevant factors in determining whether error was harmless or prejudicial include “whether the issue of innocence or guilt is close, the quantity and character of the error, and the gravity of the crime charged.” Ross v. State, 954 So.2d 968, 1018 (Miss.2007).

¶ 33. In Forrest v. State, where “the evidence was fairly evenly divided on the issue of defendant’s guilt,” improper questioning and improper arguments by the State were found to be individually harmless, but, cumulatively, they required reversal of the defendant’s burglary conviction. Forrest, 335 So.2d at 903. The improper questioning in Forrest involved insinuations that the defendant had committed similar acts before (but not that he had been convicted of them), and attempts to discredit the defendant’s witnesses as being paid for their testimony. Id. at 901. The evidence of Gilmore’s prior conviction in this case, which involved a battery against Gilmore’s girlfriend, was much more prejudicial than that in Forrest. Moreover, each time the State in Foirest asked an improper question, the judge instructed the jury to disregard the statement. Id. That was not done by the trial judge in this case.

¶ 34. The State cites DeHenre v. State, in which a daughter’s out-of-court statement to a 911 dispatcher that “my father has shot my mother” was admitted as an excited utterance, even though the daughter did not witness the actual shooting. DeHenre v. State, 43 So.3d 407, 418-19 (Miss.2010). We held this was harmless error, because the dispatcher was able to testify that she asked the daughter whether she had seen the shooting, and the daughter said she did not. Id. at 419. There, any prejudice was offset by clarifying testimony that the daughter did not actually witness the crime. There is no similar offsetting testimony here.

¶ 35. In Williams v. State, a case involving felony possession of a weapon, we found the trial court’s denial of the defendant’s offer to stipulate to his prior felony conviction to be harmless error, due to overwhelming evidence supporting the verdict, “including the victim’s photo line-up identification, the victim’s testimony, as well as corroborating gas station surveillance videotape, and 911 audiotape.” Williams, 991 So.2d 593, 606 (Miss.2008). Here, however, the evidence was fairly even on both sides, with two eyewitnesses testifying to completely contrary events for each side, and no corroborating surveillance tape to contradict Gilmore’s story.

¶ 36. In a Court of Appeals case also titled Williams v. State, the defendant was charged with aggravated assault for stabbing the victim with a pocket knife and with felony possession of a deadly weapon. Williams v. State, 37 So.3d 717, 719 (Miss.Ct.App.2010). At trial, the State introduced the defendant’s stipulation that he was a convicted felon to prove the felony possession count. Id. at 723. On appeal, the State conceded that a pocket knife did not constitute a deadly weapon under the statute. Id. at 719-20. Upon reversing the felony possession conviction, the Court of Appeals held that the introduction of the defendant’s prior conviction, which would have been inadmissible except for the felony possession charge, was clearly prejudicial. Id. at 721-22. The Court of Appeals emphasized that the defendant’s case hinged on his own testimony that he had stabbed the victim in self-defense, and that his credibility was a key factor in the outcome of what was a “close case.” Id. at 722-24.

¶ 37. Because of the close “he said, she said” nature of the evidence in this case, we cannot say that “a fair minded jury could have arrived at no verdict other than that of guilty.” Instead, the issue of innocence or guilt is close, and the quantity and character of the evidence favors neither Gilmore nor the State substantially. Moreover, the aggravated-assault charge is a grave offense for which Gilmore was sentenced to twenty years’ imprisonment. The State acknowledges that it, not Gilmore, first sought to put Gilmore’s character at issue by asking whether he was a violent person in order to impeach him with his prior conviction. As the State candidly points out in its brief, we have held previously that such “impeachment is impermissible and grounds for reversal and remand.” Johnson, 666 So.2d at 503. The introduction of Gilmore’s prior battery conviction was not harmless error, and Gilmore is entitled to a new trial on both the aggravated-assault and felony-possession charges.

5. Whether the trial court erred when it allowed the State to call Elbert Hyder during rebuttal.

¶ 38. Gilmore further complains that, during rebuttal, the State was allowed to call Elbert Hyder, who testified that he had witnessed part of the incident, including Gilmore carrying a gun. Gilmore contends the State purposely withheld Hyder’s testimony until after its casein-chief and argues that the State was obligated to present all relevant evidence bearing on Gilmore’s guilt during its casein-chief. The State contends Hyder’s testimony — that he saw Gilmore backing away while holding the gun and that Gilmore was wearing a “black dickey suit”— was offered to rebut Gilmore’s testimony that he was wearing pajamas and a “wife-beater” t-shirt and that he did not illegally possess the gun. Gilmore extensively cross-examined Hyder, and it is apparent from his counsel’s objection in the record that Gilmore was not surprised by the content of Hyder’s prospective testimony. After the State rested its rebuttal case, the judge asked Gilmore’s counsel “Anything else, counsel?” to which Gilmore’s counsel responded “No, your honor.”

¶ 39. A trial court’s decision to allow substantive evidence in rebuttal is reviewed for abuse of discretion. Mills v. State, 813 So.2d 688, 691 (Miss.2002); Roney v. State, 167 Miss. 827, 150 So. 774, 775 (1933). The general rule in Mississippi is that “the party who has the burden of proof, and the duty to open the case, must in his opening, and before he rests in his proof, introduce all the substantive evidence upon which he relies to establish his demand, and the extent of that demand.” Roney v. State, 167 Miss. 827, 150 So. 774, 775 (1933). In Myers v. State, we stated that admission of substantive evidence during rebuttal “does not constitute reversible error, unless it is shown that no opportunity is afforded the defendant to reply by surrebuttal testimony.” Myers v. State, 353 So.2d 1364, 1369 (Miss.1978).

¶ 40. “Whether the testimony evidence is properly offered during the case-in-chief or as rebuttal evidence is not always clear,” and when it is unclear, “the trial judge must be given due discretion, especially when the defendant is permitted surrebuttal.” McGaughy v. State, 742 So.2d 1091, 1094 (Miss.1999). When some doubt exists about whether the evidence offered should have been presented during the State’s case-in-chief,

the court should resolve the doubt in favor of the reception in rebuttal where (1) its reception will not consume so much additional time as to give an undue weight in practical probative force to the evidence so received in rebuttal, and (2) the opposite party would be substantially as well prepared to meet it by surre-buttal as if the testimony had been offered in chief, and (3) the opposite party upon request therefor is given the opportunity to reply by surrebuttal.

Roney, 150 So. at 775-76. However, “[i]t is only in such-doubtful cases that [reception of substantive evidence in rebuttal] should be permitted,” and “no party should be permitted as a deliberate trial tactic to decide in advance of trial to withhold a part of his case in chief ... and then offer the evidence in rebuttal.” Hosford v. State, 525 So.2d 789, 791 (Miss.1988).

¶ 41. This situation falls into the “doubtful case” category, in which this Court should resolve the doubt in favor of admitting the State’s testimony. The State clearly had a rebuttal purpose in calling Hyder, primarily using his testimony to impeach Gilmore’s testimony regarding what he was wearing as well as his description of the shooting. While Hy-der’s testimony was also substantive evidence that Gilmore possessed the gun, it was not solely offered as substantive proof that Gilmore possessed the gun. All of the Roney factors were met here. Hyder’s testimony did not “consume so much additional time as to give an undue weight” to his testimony, as his direct testimony consisted of two pages in the trial transcript. Gilmore’s counsel was not surprised by Hyder’s testimony, and Gilmore just as easily could have answered it by surrebut-tal as he could have during his case-in-chief.

¶ 42. Gilmore was given the opportunity for surrebuttal, and he chose not to present any. We treat “rebuttal testimony that is unchallenged with no surrebuttal testimony by the opposite party as somewhat similar to a motion to reopen a case.” Smith v. State, 646 So.2d 538, 543 (Miss.1994). Generally, a party should liberally be allowed to reopen a case to show facts that are vital to the issues “and a failure to do so may be considered an abuse of judicial discretion.” Reagan Equip. Co. v. Vaughn Gin Co., 425 So.2d 1045, 1047-48 (Miss.1983) (quoting Wells-Lamont Corp. v. Watkins, 247 Miss. 379, 387, 151 So.2d 600, 604 (1963)). Under our liberal standard, the judge properly allowed the State to call Hyder during rebuttal.

6. Whether cumulative errors merit reversal.

¶ 43. Because the erroneous admission of Gilmore’s prior battery conviction, standing alone, entitles Gilmore to a new trial, there is no need to address this issue.

CONCLUSION

¶ 44. The introduction of inadmissible evidence of Gilmore’s previous battery conviction was improper impeachment. This error was unduly prejudicial and affected a substantial right. We reverse the judgments of conviction of the Circuit Court of Claiborne County and remand for a new trial on both counts.

¶ 45. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, PIERCE, KING AND COLEMAN, JJ., CONCUR.


author: ANN H. LAMAR, Justice.

text:
    Willie Jerome MANNING a/k/a Fly v. STATE of Mississippi.
    No. 2013-DR-00491-SCT.
    Supreme Court of Mississippi.
    July 23, 2013.
   ORDER

ANN H. LAMAR, Justice.

This matter is before the Court en bane' on Manning’s Motion to Set Aside Convictions, Second Motion for Leave to File Successive Petition for Post-Conviction Relief and Motion in the Alternative for Other Forms of Relief, filed on May 6, 2013, and Manning’s Supplements to the Second Motion, filed on May 6th, May 7th and May 21st. Also before the Court is the State’s Motion to Strike and various responses and rebuttals, filed by both parties.

After due consideration, we find that the Second Motion for Leave to File Successive Petition for Post-Conviction Relief, as supplemented, should be granted, in part, to the extent that Manning is granted leave to proceed in the circuit court with his request for DNA testing and fingerprint comparison, within 60 days of the date of the issuance of this Court’s mandate.

We further find that Manning’s Motion to Set Aside Convictions and Manning’s request for hearings on the purported newly-discovered evidence, as set forth in the recent letters from the U.S. Department of Justice regarding the reliability of expert testimony, should be denied.

IT IS THEREFORE ORDERED that the Second Motion for Leave to File Successive Petition for Post-Conviction Relief, as supplemented, is hereby granted, in part, to the extent that Manning is granted leave to proceed in the circuit court with his request for DNA testing and fingerprint comparison. Manning’s petition for relief shall be filed in the circuit court within 60 days of the date of the issuance of this Court’s mandate. The circuit court shall proceed forthwith under Section 99-39-11 of the Mississippi Code.

IT IS FURTHER ORDERED that the Second Motion for Leave to File Successive Petition for Post-Conviction Relief, as supplemented, is hereby denied in all other respects.

IT IS FURTHER ORDERED that the Motion to Set Aside Convictions is hereby denied.

IT IS FURTHER ORDERED that the Motion to Strike filed by the State of Mississippi is hereby denied.

IT IS FURTHER ORDERED that this Order be published. The Clerk of the Court shall spread this Order upon the minutes of the Court and shall forward a true certified copy hereof to West Publishing Company for publication as soon as practical in the advance sheets of the Southern Reporter, Third Series (Mississippi Edition).

SO ORDERED.

TO DENY PETITIONER’S MOTION TO SET ASIDE CONVICTIONS: ALL JUSTICES.

TO GRANT LEAVE TO PROCEED ON THE REQUEST FOR DNA TESTING AND FINGERPRINT COMPARISON: ALL JUSTICES.

TO DENY THE REQUEST FOR HEARINGS ON THE RELIABILITY OF EXPERT TESTIMONY REGARDING BALLISTICS ANALYSIS: WALLER, C.J., RANDOLPH, P.J., LAMAR, PIERCE AND COLEMAN, JJ.

TO GRANT THE REQUEST FOR HEARINGS ON THE RELIABILITY OF EXPERT TESTIMONY REGARDING BALLISTICS ANALYSIS: DICKINSON, P.J., KITCHENS, CHANDLER AND KING, JJ.

TO DENY THE REQUEST FOR HEARINGS ON THE RELIABILITY OF EXPERT TESTIMONY REGARDING HAIR ANALYSIS: WALLER, C.J., RANDOLPH, P.J., LAMAR, PIERCE AND COLEMAN, JJ.

TO GRANT THE REQUEST FOR HEARINGS ON THE RELIABILITY OF EXPERT TESTIMONY REGARDING HAIR ANALYSIS: DICKINSON, P.J., KITCHENS, CHANDLER AND KING, JJ.