author: RANDOLPH, Presiding Justice,

text:
    MISSISSIPPI DEPARTMENT OF REVENUE v. MISSISSIPPI POWER COMPANY.
    No. 2013-CA-01234-SCT.
    Supreme Court of Mississippi.
    Aug. 7, 2014.

      Jon Francis Carmer, Jr., Abigail Marshall Marbury, attorneys for appellant.
    Ben Harry Stone, Ricky J. Cox, Gulf-port, Michael Brant Pettis, Bryan Carl Sawyers, Gulfport, attorneys for appellee.
    Before RANDOLPH, P.J., KING and COLEMAN, JJ.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. This case involves a statutory sales — and use-tax exemption for “pollution control equipment,” an administrative regulation interpreting that exemption, and the application of the statutory exemption and administrative regulation to four low-nitrous-oxide (NOx) burners purchased by Mississippi Power and installed at its Plant Watson and Plant Daniel facilities.

¶ 2. The Mississippi Department of Revenue (MDOR) audited Mississippi Power Company and assessed $251,184.93 in use taxes attributed to Mississippi Power’s purchase and installation of low-NOx burners. After unsuccessfully pursuing administrative remedies, Mississippi Power appealed to the Chancery Court of Harrison County, Mississippi. The chancery court reversed and granted summary judgment in favor of Mississippi Power. Aggrieved, the MDOR appeals.

FACTS AND PROCEDURAL HISTORY

¶ 3. Mississippi Code Section 27-65-17(l)(e) provides a reduced sales-tax rate (which also applies to use taxes) of 1.5 percent on “sales of manufacturing machinery ... when made to a manufacturer-” Miss.Code Ann. § 27-65-17(l)(e) (Rev. 2010). The parties stipulated that Mississippi Power is a “manufacturer” as contemplated by the statute, and that the low-NOx burners qualify as “manufacturing machinery.” The MDOR assessed use taxes on the burners at the reduced 1.5 percent rate.

¶ 4. In 2001, the Legislature altogether exempted from sales — and use-tax “pollution control equipment” purchased by manufacturers. Mississippi Code Section 27-65-101(l)(w) reads:

The tax levied by this chapter shall not apply to the following:
(w) From and after July 1, 2001, sales of pollution control equipment to manufacturers or custom processors for industrial use. For the purposes of this exemption, “pollution control equipment” means equipment, devices, machinery or systems used or acquired to prevent, control, monitor or reduce air, water or groundwater pollution, or solid or hazardous waste as required by federal or state law or regulation.

Miss.Code Ann. § 27-65-101(l)(w) (Rev. 2010) (emphasis added). Shortly after the passage of Section 27-65-101(l)(w), the MDOR promulgated Mississippi Administrative Code Section 35.IV.7.03(302), which reads:

Purchases of pollution control equipment by manufacturers and custom processors are exempt from sales or use tax (Effective July 1, 2001). The term “pollution control equipment” means equipment, devices, machinery or systems used exclusively and directly to prevent, control, monitor or reduce air, water or groundwater pollution, or solid or hazardous waste as required by federal law or regulation. Although the main use of the equipment must be for pollution control, the incidental use for other purposes would not result in the exemption being disallowed.

Miss. Admin. Code § 35.IV.7.03(302) (emphasis added).

¶ 5. With that background, we now turn to the facts of this case, which are brief and not in dispute. Between 2007 and 2009, Mississippi Power purchased and installed four low-NOx burners at its Plant Daniel and Plant Watson facilities (two at each). The existing burners at the facilities had not reached the end of their life cycles and were not in need of replacement. However, in order to comply with newly enacted federal regulations which required it to reduce its NOx emissions, Mississippi Power installed the new burners. Mississippi Power remitted no sales and use taxes to the MDOR for the low-NOx burners.

¶ 6. In January 2010, the MDOR notified Mississippi Power that it would conduct an audit of Mississippi Power’s state tax returns. The audit period was January 1, 2007, through December 31, 2009. At the conclusion of the audit period, the MDOR assessed Mississippi Power use taxes in the amount of $1,831,015. Of that amount, $255,939.94 was attributable to the low-NOx burners for which Mississippi Power had remitted no taxes.

¶ 7. Mississippi Power appealed the use-tax assessment to the MDOR’s internal Board of Review. Following a hearing, the Board of Review reduced the overall use-tax assessment to $977,053, but affirmed the $251,184.93 attributed to the low-NOx burners. Mississippi Power paid the entire reduced use-tax assessment ($977,053) under protest, and appealed the Board of Review’s order to the Board of Tax Appeals (BTA). The BTA conducted a hearing, and, subsequently, affirmed the reduced use-tax assessment.

¶ 8. After exhausting its administrative remedies, Mississippi Power filed a “Petition for Appeal and Review” of the BTA’s order in the Chancery Court of Harrison County, challenging only the use-tax assessment applicable to the low-NOx burners. Following the conclusion of- written discovery, Mississippi Power filed a motion for summary judgment. The MDOR then conducted a Rule 30(b)(6) depositions of Mississippi Power. See Miss. R. Civ. P. 30(b)(6). After those depositions, the MDOR filed a response to MPC’s motion for summary judgment and a counter-motion for summary judgment.

¶ 9. Following a hearing, the chancery court concluded that Mississippi Administrative Code Section 35.IV.7.03(302) was an invalid regulation, as it conflicted with the plain language of Mississippi Code Section 27-65-101(l)(w). The chancery court further concluded that Section 27-65-101(l)(w) controlled, and that Mississippi Power had “met its burden and demonstrated [that] the low NOx burners qualified] for the exemption under the statute.” The chancery court ultimately granted Mississippi Power’s motion for summary judgment, denied the MDOR’s counter-motion for summary judgment, and ordered that the MDOR reimburse Mississippi Power in the amount of $387,308.75, plus statutory interest.

ISSUES

¶ 10. On appeal, we will address the following issues raised by the MDOR, restated as follows:

I. Whether the chancery court had appellate jurisdiction over Mississippi Power’s amended petition for appeal and review.
II. Assuming the chancery court had appellate jurisdiction over Mississippi Power’s appeal, whether the court erred in finding the definition of “pollution control equipment” in Mississippi Code Section 27-65-101(l)(w) to be unambiguous, and in failing to afford deference to the MDOR’s interpretation of “pollution control equipment” in Mississippi Administrative Code 35.IV.7.03(302).

STANDARD OF REVIEW

¶ 11. This Court has held that, “unless an agency’s interpretation of a statute ‘is repugnant to the plain meaning thereof, [the courts are] to defer to the agency’s interpretation.’ ” Diamond Grove Ctr., LLC v. Mississippi State Dep’t of Health, 98 So.3d 1068, 1072 (Miss.2012) (quoting Queen City Nursing Ctr., Inc. v. Miss. State Dep’t of Health, 80 So.3d 73, 84 (Miss.2011)). “We will not, however, give deference to an agency’s statutory interpretation if it is ... so contrary to the unambiguous language or best reading of a statute.” Id. (citing Dialysis Solution, LLC v. Miss. State Dep’t of Health, 31 So.3d 1204, 1211 (Miss.2010)). “Further, when a statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation.” Id. (citing Miss. Methodist Hosp. and Rehab. Ctr., Inc. v. Miss. Div. of Medicaid, 21 So.3d 600, 607 (Miss.2009)).

ANALYSIS

I. Whether the chancery court had appellate jurisdiction over MPC’s amended petitioin for appeal and review.

¶ 12. In order to vest the chancery court with appellate jurisdiction over an appeal from the Board of Tax Appeals, a taxpayer must perfect an appeal by posting a surety bond or pay the amount ordered under protest and seek a refund. Miss.Code Ann. § 27-77-7(3) (Rev. 2010); Khurana v. Miss. Dep’t of Revenue, 85 So.3d 851, 855 (Miss.2012). Mississippi Power chose the latter and thus was statutorily required to “prove by a preponderance of the evidence that [it] alone bore the burden of the tax sought to be refunded ... and did not directly or indirectly collect the tax from anyone else.” Miss. Code Ann. § 27-77-7(1), (5) (Rev. 2010).

¶ 13. According to the deposition testimony of its comptroller, Cynthia Shaw, Mississippi Power included its 2011 tax payment, which included the amount paid under protest, in its 2012 look-back Performance Evaluation Plan (Plan) filed with the Mississippi Public Service Commission (PSC). Shaw explained that the PEP “is a mechanism for calculating the revenue requirement, a base rate requirement for the company.” The MDOR argues that, because Mississippi Power included the 2011 tax payment in its 2012 look-back PEP filing, it recouped the taxes it paid under protest via rates charged to its customers. As such, the MDOR argues that Mississippi Power “shifted the burden of the tax payment to its customers ... [and] did not prove by a preponderance of the evidence that it alone bore the burden of the tax it was seeking to recover ....”

¶ 14. The chancellor found this Court’s decision in Monaghan v. Southern Bell Telephone and Telegraph Company, 242 Miss. 611, 136 So.2d 198 (1962), controlling. In that case, the MDOR assessed $43,489.76 in additional sales taxes against Southern Bell, which represented “two per cent of the gross income ... derived from sales of intrastate .... telephone services to government agencies” from April 1, 1955, through July 31,1956. Id. at 198-99. Southern Bell paid the amount under protest and appealed to chancery court, arguing that the additional taxes “should not apply to sales of telephone services to governmental agencies.” Id.

¶ 15. Prior to 1954, sales billed directly to governmental agencies were not exempt from taxes; thus, Southern Bell was required to remit taxes on those sales to the MDOR. Like Mississippi Power, Southern Bell’s rates were “fixed by the Mississippi Public Service Commission[.]” Id. at 200. In fixing Southern Bell’s rates, the PSC “first determined the overall intrastate revenue requirements of the company, taking into account the operating expenses and taxes of the company[.]” Id.

It was ... stipulated ... that, in presenting facts to the Public Service Commission to enable it to determine the general revenue level to be allowed, Southern Bell, in each instance since the enactment of the Sales Tax Law in 1932, and up until June 15, 1954, presented to the Commission as an expense item, along with all other expenses, such as salaries, wages, ad valorem taxes, franchise taxes etc., an amount equal to two per cent of the gross income of its intrastate business; and that the Public Service Commission in its rate hearings considered and accepted the two per cent tax as an expense item in determining and settling the general revenue level which the company was entitled to receive.

Id. at 201. The PSC “then prescribed or approved a schedule of individual rates and charges which would produce the amount of revenue required to meet the operating expenses and taxes of the company and provide a fair rate of return to the company upon the reasonable value of its intrastate property.” Id. at 200.

¶ 16. In 1954, the Legislature amended the applicable statute to provide that “tax[es] levied and assessed under this act shall not apply ... when such sales are billed directly to and payment therefor is made directly by the United States Government, the State of Mississippi, its departments and institutions, counties and municipalities.” Id. at 199-200. Despite the 1954 amendment, no subsequent “change was made in the rates charged such customers[.]” Id. at 201. Because Southern Bell continued to collect the same rates after the removal of that particular tax expense from its revenue requirement, the MDOR argued that Southern Bell recouped the taxes from its customers, thus “failing to allege and prove ... that it alone bore the burden of the tax sued for and did not directly or indirectly collect the tax from its customers.” Id. at 202.

¶ 17. The Southern Bell Court rejected the MDOR’s argument, stating:

The tax was never added to the telephone subscribers’ bills as a separate charge. The tax was treated by ■ the Public Service Commission as a part of the cost to the company of furnishing services and in the fixing of rates and charges was intermingled with other operating expenses of the company and absorbed in the composite rates approved by the Commission.

Id. at 204. Because the taxes were “absorbed” into the rates and indistinguishable from all other expenses considered by the PSC to determine Southern Bell’s revenue requirements for rate-setting purposes, the Court held that Southern Bell “alone bore the burden of the tax to be recovered.” Id.

¶ 18. In the case sub judice, Shaw explained the various costs, including the use taxes, that Mississippi Power presented to the PSC for consideration of Mississippi Power’s revenue requirement. Shaw testified that she could not “tell ... how much tax was collected through the rates” because taxes are an “indistinguishable part of the overall revenue requirement calculation.” She testified that “use taxes ... become part of the costs of projects” and. are “not tracked as taxes in the accounting records, and they’re not separate in the filings as taxes, and they’re not included on the bill as taxes.” Shaw further explained that “[i]n the case of ... taxes, like income taxes, use taxes, payroll taxes, there is not a dollar for dollar recovery. Those things are included in the overall calculation of revenue requirement and they’re not identifiable components of the revenue requirement calculation, and that overall revenue requirement is then used to determine those detailed rate schedules or prices to customers.”

¶ 19. Shaw’s unrefuted testimony fits squarely with this Court’s decision in Southern Bell. While the use-tax assessment admittedly was included in Mississippi Power’s 2012 look-back PEP filing, the use tax was only one consideration of the PSC in determining Mississippi Power’s overall revenue requirement. If recovered at all, the use taxes “were absorbed in the ... rates approved by the” PSC and were “never added to the [ratepayers’] bills as a separate charge.” Id. at 204. Mississippi Power met its burden to “prove by a preponderance of the evidence that [i]t alone bore the burden of the tax sought to be refunded ... and did not directly or indirectly collect the tax from anyone else.” Miss.Code Ann. § 27-77-7(1), (5) (Rev. 2010). Therefore, the chancery court had appellate jurisdiction over this suit.

II. Assuming the chancery court had appellate jurisdiction over Mississippi Power’s appeal, whether the court erred in finding the definition of “pollution control equipment” in Mississippi Code Section 27-65-101(l)(w) to be unambiguous, and in failing to afford deference to the MDOR’s interpretation of “pollution control equipment” in Mississippi Administrative Code 35.IV.7.03(302).

¶ 20. We will first address the ambiguity, vel non, of Section 27-65-101(l)(w). When called upon to examine a statute, “the Court first looks to the language of the statute.” Lawson v. Honeywell Intern., Inc., 75 So.3d 1024, 1027 (2011) (citing Pinkton v. State, 481 So.2d 306, 309 (Miss.1985)). “If the words of a statute are clear and unambiguous, the Court applies the plain meaning of the statute and refrains from using principles of statutory construction.” Id. (citing Clark v. State ex rel. Miss. State Med. Ass’n, 381 So.2d 1046, 1048 (Miss.1980)).

¶ 21. Section 27-65-101(1) ' reads, in pertinent part:

The tax levied by this chapter shall not apply to the following:
(w) From and after July 1, 2001, sales of pollution control equipment to manufacturers or custom processors for industrial use. For the purposes of this exemption, “pollution control equipment” means equipment, devices, machinery or systems used or acquired to prevent, control, monitor or reduce air, water or groundwater pollution, or solid or hazardous waste as required by federal or state law or regulation.

Miss.Code Ann. § 27-65-101(l)(w) (Rev. 2010) (emphasis added).

¶ 22. It is undisputed in this case that Mississippi Power acquired and used the low-NOx burners to reduce NOx emissions in order to comply with federal regulations. The existing burners at Plant Daniel and Plant Watson had not reached the end of their life cycles. Additionally, the low-NOx burners are less efficient in production than the existing burners. However, because of changes in the federal regulations (the “Clean Air Act” and “Clean Air Insterstate Rule”), Mississippi Power was required to reduce its NOx emissions or purchase emissions credits from other producers. Rather than purchase emissions credits, Mississippi Power elected to invest in low-NOx burners and reduce its pollution output. The undisputed testimony is that the low-NOx burners have reduced Mississippi Power’s pollution output by 50 percent in each boiler in which the burners were installed.

¶23. The low-NOx,, burners purchased and installed by Mississippi Power satisfy the plain language of the statutory definition — they were “used or acquired to prevent, control, monitor or reduce air, water or groundwater pollution, or solid or hazardous waste as required by federal or state law or regulation.” Miss.Code Ann. § 27-65-101(l)(w) (Rev. 2010). The MDOR never has argued that the low-NOx burners do not meet the statutory definition.

¶ 24. Instead, the MDOR argues that the statute is ambiguous by “virtue of [its] silence” because it fails “to address the situation where a manufacturer purchases equipment ... that is necessary for day-to-day business operations and the final marketable product of the manufacturers, yet may also have a pollution control effect.” It is the MDOR’s position that equipment which serves a dual purpose (production and pollution control) does not qualify for the exemption under Mississippi Administrative Code 35.IV.7.03 because the equipment is not used “exclusively and directly” for pollution control. The MDOR further contends that the regulation was necessary to prevent “an exemption free for all.”

¶ 25, Whether the statute creates a potential tax loophole is the concern of the Legislature, not this Court. Despite its contention that it did not restrict or redefine the statute in promulgating Mississippi Administrative Code 35.IV.7.03(302), the MDOR did in fact redefine and restrict the term “pollution control equipment.” Both the statute and the regulation provide that “pollution control equipment means. (Emphasis added.) After this introductory statement, the statute and regulation are verbatim, except that the regulation altogether removed the words “or acquired” and replaced them with the adverbs “exclusively and directly.” We conclude that the insertion of the adverbs “exclusively and directly” places a more stringent requirement on the “use” of the “pollution control equipment” than that provided by the Legislature.

¶ 26. In essence, the MDOR rewrote the exemption provision to provide what it believes the Legislature should have written and adopted to reflect what the MDOR calls a “good tax policy.” This Court, however, does not view statutes in this manner. “The function of the Court is not to decide what a statute should provide, but to determine what it does provide.” Lawson, 75 So.3d at 1027 (citing Russell v. State, 231 Miss. 176, 94 So.2d 916, 917 (1957)). “The Court must not broaden or restrict a legislative act.” Id. (citing Barbour v. State ex rel. Hood, 974 So.2d 232, 240 (Miss.2008)). Section 27-65-101(l)(w) clearly does not require the equipment be “used exclusively and directly” for pollution-control equipment to be tax-exempt.

¶ 27. Mississippi Code Section 27-65-93 grants the MDOR the authority to “promulgate rules and regulations, not inconsistent with the provisions of the sales tax law-” Miss.Code Ann. § 27-65-93(1) (Rev. 2010). Stated in the negative, the MDOR “may not promulgate rules that alter or amend or negate the effect of a statute and may not overstep [its] authority by creating regulations inconsistent with the controlling statutes.” American Federated Life Ins. Co. v. Dale, 701 So.2d 809, 812 (Miss.1997). The MDOR exceeded its authority in promulgating Mississippi Administrative Code 35.IV.7.03(302), for it is inconsistent with the plain language of Section 27-65-101(l)(w).

CONCLUSION

¶28. Based on the foregoing analysis, the chancellor correctly concluded that Mississippi Administrative Code 35.-IV.7.03(302) was an invalid regulation. The chancellor further was correct that the low-NOx burners qualified for the tax exemption under the plain language of Section 27-65-101(l)(w) and the evidence produced by Mississippi Power. Therefore, the chancellor correctly ordered that the MDOR refund Mississippi Power the use taxes assessed on the low-NOx burners, plus penalties and interest.

¶ 29. AFFIRMED.

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

      . During die course of die events underlying this appeal, the "Mississippi State Tax Commission” was renamed the "Mississippi Department of Revenue.” See Miss.Code Ann. § 27-3-4 (Rev. 2010).

      . See Miss.Code Ann. § 27-67-7 (Rev. 2010).

      . Mississippi Administrative Code 35.IV.7.03 was originally titled Rule 47 of the former Mississippi Sales Tax Rules.

      . Mississippi Power holds a "direct pay permit" authorized under Mississippi Code Section 27-65-93(3), which allows it to pay sales and use tax directly to the MDOR and removes the normal responsibility of the vendor to collect and remit sales tax. Miss.Code Ann. § 27-65-93(3) (Rev. 2010).

      .Part of the overall reduction reflected a partial payment of $582,977 by Mississippi Power at the time of the assessment.

      . This judgment consisted of $255,939.94 for use taxes, $25,593.99 for penalties, and $105,774.82 for interest assessed by the MDOR.

      . Amended by 2014 Miss. Laws WL No. 122 (H.B.1555).

      . This Court has stated that "statutory interpretation is appropriate if a statute is ambiguous or is silent on a specific issue.” Buffing-ton v. Mississippi State Tax Comm'n, 43 So.3d 450, 454 (Miss.2010) (quoting Miss. Methodist Hosp. and Rehab. Ctr., Inc. v. Miss. Div. of Medicaid, 21 So.3d 600, 607-08 (Miss.2009)).


source: Caselaw Access Project

author: BARNES, J., ISHEE, J.,

license: Public Domain

text:
    Joe H. COTTON a/k/a Joe Cotton a/k/a Joe. Henry Cotton, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00705-COA.
    Court of Appeals of Mississippi.
    July 30, 2013.
    Rehearing Denied Oct. 29, 2013.

      George T. Holmes, Jackson, Wilbert Le-von Johnson, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   BARNES, J.,

for the Court:

¶ 1. In 1995, Fannie Lee Burks was murdered in her apartment in Tunica County, Mississippi. At that time, the murder was deemed unsolved, and the case “went cold.” However, in 2008, the Tunica County Sheriffs Office tested biological evidence that was found under Burks’s fingernails at the time of her murder. The evidence had been stored in the property room. The DNA profile found under the fingernails of her right hand was consistent with that of Joe Cotton. In 2011, Cotton was charged with Burks’s murder. After a jury trial in the Tunica County Circuit Court in April 2012, Cotton was found guilty of murder. He was sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). Cotton now appeals, arguing the evidence was insufficient to support the verdict and the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm Cotton’s conviction and sentence.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On April 9, 1995, Burks’s body was found in her apartment in Tunica, Mississippi. She had been shot three times, and some of her jewelry was missing. It was determined her death occurred after 12:01 a.m. There was no indication of forced entry, no eyewitnesses to the crime, and no weapon recovered.

¶ 3. At the time of the original investigation, fingernail scrapings were taken as evidence. In 2008, the cold case was reviewed by the Tunica County Sheriffs Office, and the fingernail scrapings, which had been stored in the property room of the Tunica County Sheriffs Office, were sent for DNA analysis. A DNA analyst found the right-hand fingernail scrapings contained DNA, which can remain present “for years.” The DNA profile was found to be “a mixture of more than one person including an unknown male[,] and Fannie Burks could not be excluded as a contributor” to the sample. The results were compared to DNA profiles in a national database, and Cotton was found to be a potential match. The sheriffs office obtained an oral swab from Cotton through a search warrant and compared it to the DNA analysis results. Since the initial DNA analysis used all of the scrapings sample, there was no DNA sample left to re-analyzed. The DNA profile contained in the fingernail scrapings was found to be consistent with that of Cotton.

¶ 4. Prior to her death, Burks had worked as a cook at Nickson’s Café (a/k/a Nickson’s Disco Club) in downtown Tunica. Burks’s good friend, Ms. Willie Nickson, testified at trial that on the afternoon of April 8, 1995, she stopped by to see Burks at the café. They made plans to eat lunch the next day. As they spoke, Nickson noticed Burks was putting rings on her fingers. Nickson also helped Burks put on a herringbone necklace. The next day, after Nickson called Burks’s apartment and got no answer, Nickson and a friend went to Burks’s apartment. Burks’s automobile was in the parking lot, but Burks, did not answer their knocks on the door and window. The apartment manager unlocked the door, and Burks’s body was discovered. According to Nickson, Burks was wearing the same dress as the day before, but she did not have on the necklace, and all but one ring was missing from her fingers.

¶ 5. Deputy Sheriff Marco Sykes testified that when he was called to the scene of the murder, he found Burks’s body lying face down on the floor of her apartment. The television was on, but the telephone was off the hook. An empty jewelry box was found in Burks’s bedroom at the foot of her bed. Sykes stated “[i]t appeared that someone had been in the attic.” The attic door in the hallway was pushed up, and there was a chair and several pillows underneath the attic stair opening. Insulation that matched the insulation in the attic was on the kitchen floor, and pieces of hair were found in the kitchen sink. There was no indication of forced entry.

¶ 6. Dr. Steven Hayne performed Burks’s autopsy. He took fingernail scrapings from Burks’s right and left hands and submitted this evidence to investigators. He noted that Burks was wearing only one earring, and no other jewelry was on her body. Dr. Hayne testified at trial that the three gunshot wounds — one to her front abdomen, one to her left flank, and one to the back of her head — were all close contact wounds and were all lethal.

¶ 7. Sheriff Kalvin Hamp testified that Cotton gave conflicting statements as to whether he came into contact with Burks the night of the murder. In Cotton’s initial statement to police, he repeatedly denied having seen Burks the night of her murder; however, he later admitted that he had been to the club where Burks worked on April 8, 1995, and Burks had waited on him. He bought a sandwich, which Burks passed to him in a brown paper bag. Sheriff Hamp also testified that Cotton waffled about whether or not Burks could have scratched him while passing him the sandwich bag. Cotton also told investigators that he had been to Burks’s apartment on two separate undisclosed prior dates — to return some stolen property of hers and to help move furniture into her apartment. In addition, Cotton’s mother lived in the same apartment complex as Burks.

¶ 8. The only direct evidence tying Cotton to Burks’s murder was the presence of his DNA under her right-hand fingernail scrapings. William Jones, a forensic scientist qualified as an expert in the field of forensic DNA analysis, testified that Cotton could not be excluded as a contributor of DNA found in fingernail scrapings taken from Burks during her autopsy. Jones tested thirteen genetic markers from the right-fingernail scrapings of Burks. The genetic profile excluded “greater than 99.99 percent of the Caucasian, African-American and Hispanic populations.” The scrapings were a mixture of at least two individuals, one of whom was a male, and that mixture had a DNA profile consistent with Cotton, i.e., he could not be excluded as a contributor. Nor could Burks be excluded as a contributor to the mixture. Jones testified that, in his opinion, the DNA was a mixture of Cotton’s and Burks’s, to “a very high degree of [scientific] certainty.” Jones admitted that DNA could be transferred between individuals by casual contact. Cotton did not testify at trial; nor did he put on any witnesses in his defense.

¶ 9. After the three-day trial, the jury returned a verdict of guilty in less than an hour of deliberations. The trial court sentenced Cotton to life in the custody of the MDOC. He filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which was denied. Cotton now appeals.

ANALYSIS

¶ 10. Cotton argues the evidence was insufficient and the verdict was against the overwhelming weight of the evidence. Cotton asserts the presence of his DNA under Burks’s fingernails proves nothing more than a casual encounter between himself and Burks.

¶ 11. When considering the sufficiency of the evidence on appeal, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). However, when the evidence in a case is circumstantial, we must scrutinize the jury’s verdict more closely. Madden v. State, 42 So.3d 566, 569 (¶ 9) (Miss.Ct.App.2010).

¶ 12. When considering the weight of the evidence, “we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). The evidence will be viewed in the light most favorable to the verdict. Id. It is the jury’s role to assess the weight and credibility of the evidence and to resolve any conflicts in the evidence. Latiker v. State, 918 So.2d 68, 73 (¶ 12) (Miss. 2005). Furthermore, “the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily' against the verdict.” Bush, 895 So.2d at 844 (¶ 18) (quoting Am-iker v. Drugs for Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)).

¶ 13. It is undisputed that the evidence in this case was purely circumstantial. “[W]hen the prosecution’s case is entirely circumstantial, it must prove the defendant’s guilt beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence.” Staten v. State, 989 So.2d 938, 943 (¶ 9) (Miss.Ct.App.2008) (quoting Bil-liot v. State, 454 So.2d 445, 461 (Miss. 1984)).

¶ 14. After a careful review of the record, this Court finds the evidence, albeit circumstantial, sufficient to sustain the conviction. There is a jury question as to how Cotton’s DNA came to be under the nails of Burks’s right hand. Cotton gave contradicting statements as to whether he had come into contact with Burks on the night of her murder. Sheriff Hamp testified that in Cotton’s statement to police, Cotton repeatedly denied that he had seen Burks on the night of her murder, or prior to it. However, Cotton was a patron of the night club where Burks worked as a cook, and he did finally admit that he ordered a sandwich at the club on the night Burks was murdered and that she passed the sandwich to him in a brown paper bag. Initially, Cotton stated there could have been a possibility Burks scratched him while passing the bag, but he acknowledged he probably would have known for certain if she had scratched him. Then later, Cotton stated Burks had never scratched him. And yet, undoubtedly, his DNA was under her fingernails. The State’s forensic DNA expert witness, Jones, testified Cotton could not be excluded as a contributor of DNA found in fingernail scrapings taken from Burks during her autopsy, and that there was a “very high degree of [scientific] certainty” that the DNA was a mixture of Cotton’s and Burks’s.

¶ 15. While it is plausible, as Cotton argues, that his DNA came to be under Burks’s fingernails through the casual contact of passing him a sandwich in a brown bag, and not another more violent encounter, it is not a reasonable conclusion. Cotton would have had to have been one of Burks’s last customers at the club. She would have had to pass the bag to Cotton somehow using her fingernails rather than her fingers. Then, Burks would have had to finish work without washing her hands and without passing food to any other parties, in such a manner as to get their DNA under her nails.

¶ 16. Additionally, the evidence indicates Cotton had both motive and opportunity to murder Burks. A reasonable jury could well have found Cotton’s motive to be the robbery of Burks’s jewelry, and his opportunity the fact Burks lived “pretty close” to Cotton’s mother, in the same apartment complex. According to Nick-son, the night prior to Burks’s murder she was wearing rings on each hand and a herringbone necklace. When her body was discovered the following day, Burks was wearing the same dress as the night before, but her necklace and all but one ring were missing. Also, her jewelry box was found empty. If the jury believed that Cotton in fact saw Burks at the club and was handed a sandwich by her, then they could also believe he saw the jewelry that Burks was wearing that night.

¶ 17. As for opportunity, Cotton and Burks knew one another, and Cotton knew where Burks lived. Cotton had been to Burks’s apartment twice before — first to return stolen property of hers Cotton received from one of Burks’s sons, and second to help one of Burks’s sons move furniture into her apartment. There were no visible signs of forced entry to her apartment. Burks’s apartment door was found locked, meaning the killer locked it on the way out. Her kitchen window was closed but unlocked. Officer Sykes testified that it appeared someone had been in her attic. The jury could reasonably find from this evidence that Burks either let Cotton inside her apartment that night because she knew him, or he was already hiding within her apartment when she came home from work.

¶ 18. Further, Dr. Hayne testified that Burks’s three gunshot wounds were all “contact wounds”; that is, the muzzle of the weapon was in contact with Burks’s body when it was fired each time. One wound was to her front abdomen, one wound was to her left flank, and another wound was to the back of her head, indicating the murderer shot from in front, to the side, and from behind Burks. The jury could reasonably find that Burks was close enough to her attacker that she could have scratched him with her nails. Also, Dr. Hayne’s autopsy revealed the presence of a one-half-inch scrape or abrasion of Burks’s skin over the “upper outer left chest wall.” Reasonable and fair-minded jurors could find this scrape came from physical contact with her killer.

¶ 19. Courts in other jurisdictions have affirmed criminal convictions based only on DNA evidence. In State v. Abdelma-lik, 273 S.W.3d 61, 62, 64 (Mo.Ct.App. 2008), DNA evidence found under the victim’s fingernails was used to link the defendant to the murder, and was found sufficient to support a conviction for capital murder. The Abdelmalik court noted that the issue of “whether DNA evidence alone can provide sufficient evidence of identity to support a conviction is one of first impression in Missouri.” Id. at 66. However, their decision “is consistent with other state and federal jurisdictions, which have uniformly held that DNA evidence, alone, can provide sufficient evidence to support a criminal conviction.” Id. In Ab-delmalik, a substantial amount of DNA evidence was recovered from under the victim’s fingernails, which is inconsistent with casual contact. Id. at 64-65.

¶ 20. In the case before us, there is a possibility that the DNA could have come from casual contact, but it is unreasonable to believe that DNA from any casual contact would have remained under the victim’s nails given her occupation of cook and habit of washing her hands often while she worked. Further, it is unreasonable to believe that if Burks did not wash her hands after casual contact with Cotton, she would not have had any debris from cooking under her nails.

¶ 21. In State v. Nash, 339 S.W.3d 500, 504, 510 (Mo.2011), the Missouri Supreme Court found sufficient evidence to uphold a murder conviction when the State’s only evidence was that the victim’s and the defendant’s DNA was found under the victim’s fingernails at the time .of her death. While a circumstantial-evidence instruction was denied, the Nash court found that the DNA evidence, taken with the other evidence about the murder, was sufficient. Id. at 511. The following statement by the Nash court is instructive:

It is not this Court’s role to reweigh the DNA evidence to contradict the jury’s conclusions_There was sufficient evidence to support the jury’s conclusions that Nash’s DNA, rather than a third person’s DNA, was present under [the victim’s] fingernails because Nash was the last person to have contact with [the victim] before she was killed.

Id. The only reasonable conclusion in this case is that Cotton was the last person to have contact with Burks before she was killed.

¶ 22. There was sufficient evidence to prove to reasonable and fair-minded jurors, beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence, that Cotton shot and killed Burks. Further, Cotton’s conviction does not sanction an unconscionable injustice. Accordingly, we affirm Cotton’s conviction and sentence for the murder of Burks.

¶ 23. THE JUDGMENT OF THE TU-NICA COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

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

ISHEE, J.,

dissenting:

¶ 24. With respect to the majority, I must dissent. Cotton claims the presence of his DNA under Burks’s fingernails proves nothing more than a casual encounter between them. The sample of DNA under Burks’s nails was relatively small; therefore, Cotton asserts that if she had scratched him during a struggle, a larger sample of his DNA would have been found under her nails. Furthermore, Cotton argues the scrapings contained the DNA of more than one person, thereby casting reasonable doubt as to the identity of the perpetrator.

¶ 25. The majority finds that the evidence, which is purely circumstantial, is sufficient to sustain Cotton’s conviction. I disagree. When considering the sufficiency of evidence on appeal, the pivotal question is “whether the evidence shows ‘beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to suppoi’t a conviction.’ ” Bush v. State, 895 So.2d 886, 843 (¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The evidence will be deemed sufficient “if a review of the evidence reveals that it is of such quality and weight that, ‘having in mind the beyond[-]a[-]reasonable[-]doubt[-]burden[-]of[-]proof standard, reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense[.]’ ” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). However, when the evidence in a case is purely circumstantial, the jury’s verdict must be scrutinized more closely. Madden v. State, 42 So.3d 566, 569 (¶ 9) (Miss.Ct.App.2010).

¶ 26. There was no direct evidence to prove that Cotton killed Burks. Although Cotton’s DNA was found under Burks’s fingernails, this only establishes that Burks and Cotton were in contact prior to her death. Even though Cotton does not recall Burks touching or scratching him, it is plausible, and reasonable, that Cotton could have been Burks’s last customer, that his DNA could have gotten under her fingernails when she served him food on the night of her death, and that she failed to thoroughly wash her hands, or shower, following her shift. Further, to say that the mere presence of Cotton’s DNA on Burks’s body proves that Cotton killed Burks creates a slippery slope by lowering the evidentiary requirements to prove deliberate-design murder.

¶ 27. The majority also finds that the contact between Burks and Cotton prior to her death is enough to establish an opportunity and a motive for Cotton to murder Burks. The majority opines that since Cotton had known where Burks lived and had previously been to her home, he had opportunity. Further, the majority asserts that Burks’s missing jewelry from her body and jewelry box is sufficient to establish a motive for Cotton since he had possibly noticed her wearing the jewelry the night before at Nickson’s Café. These conclusions are speculative, at best. This circumstantial evidence merely establishes that Cotton and Burks had contact with one another prior to Burks’s death and that Cotton knew where Burks lived. It is not direct evidence of motive or opportunity; and it does not prove that Cotton killed Burks.

¶28. With regard to the presence of two individuals’ DNA under Burks’s nails, the DNA analyst found that “the DNA profile was a mixture of more than one person including an unknown male[,] and Fannie Burks could not be excluded as a contributor to the sample.” While the second sample could have been Burks’s own DNA, it was not conclusive in the results. Moreover, the biological evidence could not be re-analyzed because it had been consumed entirely in the initial analysis. Even if it had been determined conclusively that the second sample was Burks’s own DNA, the mere presence of Cotton’s DNA on her body only establishes contact prior to death and, alone, does not prove murder.

¶ 29. To reiterate, “when the prosecution’s case is entirely circumstantial, it must prove the defendant’s guilt beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence.” Staten v. State, 989 So.2d 938, 943 (¶ 9) (Miss.Ct.App.2008) (quoting Billiot v. State, 454 So.2d 445, 461 (Miss.1984)). There is simply no evidence that proves Cotton’s guilt beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. Accordingly, I would reverse and render Cotton’s conviction and sentence.

IRVING AND GRIFFIS, P.JJ., JOIN THIS OPINION.

      . Jones testified that DNA on the hands would be removed naturally over time by either washing or normal use. Taking a bath would "absolutely” remove it. Burks’s friend, Nick-son, testified that Burks was "a real neat, clean lady” who would wash her hands often while working. Further, as the prosecution argued, there was no commeal or other material that she might have cooked with under her fingernails — her nails were fairly clean, except for Cotton's DNA. Dr. Hayne testified that during Burks's autopsy, he did not "see any foreign materials underneath the fingernails but ... scraped them anyway.”

      . See also State v. Scott, 97 So.3d 1046, 1049-50, 1052 (La.Ct.App.2012) (Evidence of the defendant’s DNA found under the fingernails of the victim's grandmother, who allegedly scraped the defendant’s neck at the scene of the shooting, was the only physical evidence linking the defendant to the murder, as the grandmother could not identify the perpetrator. In this circumstantial-evidence case, the court concluded that the DNA evidence was sufficient to support a conviction, and "every reasonable hypothesis of innocence” had been excluded.).


author: BARNES, J.,

text:
    Nancy DOWNEY a/k/a Nancy Pruitt Downey a/k/a “Cookie”, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00815-COA.
    Court of Appeals of Mississippi.
    Sept. 3, 2013.
    Rehearing Denied Dec. 3, 2013.

      John Anthony Piazza, Justin Taylor Cook, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. On July 22, 2009, the Jones County Sheriffs Department arrived at a house fire to find the home fully engulfed. Witnesses stated that before the fire, they had seen Nancy Downey walking away from the home and carrying a large, full bag. Deputy James Atkins went to the nearby home of Marvin Pruitt, Downey’s brother, to investigate. Downey and another woman answered the door. Downey lied to the deputy, claiming the other woman was Downey and that she did not start the fire, even though the deputy had not even questioned her about the fire at that point. However, the deputy knew Downey from a previous occasion and knew that she was lying.

¶2. Downey then admitted to being in the home earlier that evening, and a bag of stolen items from the burned home was recovered from under a bed in Pruitt’s home. Downey was arrested and read her Miranda rights. After signing a waiver of those rights, Downey told the investigator that she had an attorney and stated, “I could use him.” It was not clear to the interrogating officer to whom Downey was referring. When questioned further about her need for an attorney, she agreed to go ahead and talk to law enforcement without an attorney present. Downey admitted that she had been looking around the home and smoking a cigarette. She said the cigarette fell and caught some clothes on fire.

¶ 3. On November 2, 2009, Downey was indicted for Count I, burglary of a dwelling, and Count II, first-degree arson. After a psychiatric evaluation was conducted on Downey, she was found competent to stand trial. However, the report also stated that Downey was “intellectually disabled and functionally illiterate.”

¶ 4. Downey was convicted of both counts and sentenced to serve twelve years on each count in the custody of the Mississippi Department of Corrections, with the sentences to run concurrently. Downey’s motion for a judgment notwithstanding the verdict, or alternatively a new trial, was denied. On appeal, we find no error and affirm the judgment.

DISCUSSION

Whether the trial court erred in denying the motion to suppress Downey’s statement to law enforcement.

A. Standard of Review

¶ 5. Prior to trial, Downey filed a motion to suppress her statement to law enforcement. After a hearing, the trial court denied the motion and allowed the introduction of her statement into evidence. She argues on appeal that the statement should have been ruled inadmissible.

¶ 6. A statement by a defendant is admissible if the defendant was given a Miranda warning, and then knowingly, intelligently, and voluntarily waived his rights. Brown v. State, 936 So.2d 447, 451 (¶ 6) (Miss.Ct.App.2006) (citing Busick v. State, 906 So.2d 846, 855 (¶ 16) (Miss.Ct. App.2005)). “[T]he standard of review for a trial court’s decision to admit or exclude evidence is abuse of discretion.” Id. (citing Graves v. State, 492 So.2d 562, 565 (Miss.1986)).

B. Right to Counsel

¶ 7. Downey argues that she invoked her right to counsel during police questioning; yet, law enforcement continued to interrogate her in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial judge, in denying the motion, found: “I’m totally satisfied that [Downey] gave permission to be asked questions and questions that flowed therefrom unless or until she invoked her right once again not to talk and see her lawyer.”

¶ 8. Citing the United States Supreme Court’s holding in Miranda, the Mississippi Supreme Court has stated:

If the defendant invokes his right to counsel, the interrogation must cease until an attorney is present. If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.

Barnes v. State, 30 So.3d 313, 316 (¶ 8) (Miss.2010) (internal citations and quotations omitted) (citing Miranda, 384 U.S. at 475, 479, 86 S.Ct. 1602)). “Once a defendant asks for counsel, he cannot be interrogated further until counsel has been made available, ‘unless the accused himself initiates further communication, exchanges, or conversations with the police.’” Id. at 316-17 (¶8) (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)).

¶ 9. However, in Davis v. United States, 512 U.S. 452, 459, 462, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the United States Supreme Court clarified:

[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.... Rather, the suspect must unambiguously request counsel. As we have observed, a statement either is such an assertion of the right to counsel or it is not.... [H]e must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.
[W]e are unwilling to create a third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer. Unless the suspect actually requests an attorney, questioning may continue.

(Internal citations and quotations omitted) (emphasis in original). During questioning, Downey stated that she had an attorney, and later said, “I could use him.” During the hearing on the motion to suppress, Major Robbie Súber, the officer who questioned Downey, testified that upon learning Downey had an attorney, he questioned her further regarding whether she desired to consult with the attorney.

Q. I know some of these questions the transcript speaks for itself, but after you read the rights and waiver of rights, that’s when she stated, I got a lawyer?
A. Correct.
Q. Who do you recall her saying was that lawyer?
A. Brad Sullivan.
Q. Were you familiar with a Brad Sullivan?
A. I was not.
Q. Was there reason for you, as it seemed in the transcript, for you to be confused about the name Brad Sullivan?
A. Correct.
Q. Why was that?
A. Well, I knew a Brad and knew the Sullivans were involved in law practice here in Laurel, and I just don’t know who she was talking about.
Q. So what were you trying to do there when you were asking her these questions as to who Brad Sullivan is?
A. Trying to narrow down who she may be talking about as far as who her attorney [was], who she had used in the past, whoever she was referring to.

Major Súber determined that Downey was referring to Brad Thompson, a lawyer she had employed previously in a car-accident case. Once he determined the identity of the attorney to whom Downey was referring, Major Súber asked if she wanted him to go get Thompson or if she wanted to talk to Major Súber.

Q. And then you asked her, do you want me to go get him or do you want to talk to me?
A. I did.
Q. What did she say?
A. She eventually said that I want to talk to you.
Q. Again, the purpose of the questions you asked her after she said to you I got a lawyer was for what purpose?
A. To try and figure out who she was talking about, what attorney she was talking about.

¶ 10. Nothing in the record suggests Downey made a clear and unequivocal request for an attorney. Furthermore, Downey told Major Súber that she would go ahead and talk with him and not wait to call Thompson. We cannot find that the trial judge erred in finding that Downey voluntarily agreed to talk with Major Sú-ber without the presence of an attorney.

C. Voluntariness of Waiver of Miranda Rights

¶ 11. Downey claims that her lack of sleep the night before while in custody, combined with her low intelligent quotient (IQ) and deficient verbal skills, prevented her from voluntarily waiving her Miranda rights. Downey notes that she has an IQ of 68. The evaluation by the trial court’s psychologist found Downey to be “intellectually disabled and functionally illiterate.” Therefore, she claims that “[n]o reading of the record or viewing of the interrogation can support an argument that [she] read and understood the waiver that she signed.”

¶ 12. The Mississippi Supreme Court has often upheld a trial court’s finding that a mentally impaired defendant knowingly, intelligently, and voluntarily waived his Miranda rights. In Neal v. State, 451 So.2d 743, 756 (Miss.1984), the supreme court found that a defendant with an IQ of 54 and organic brain dysfunction lawfully waived his Miranda rights. In a more recent case, Brown v. State, 936 So.2d 447, 451-52 (¶¶ 8-10) (Miss.Ct.App. 2006), this Court held that the trial court’s denial of a defendant’s motion to suppress his statement to police was not an abuse of discretion, despite the fact that the defendant had a “verbal IQ of 66 ... and a full scale IQ of 64.” “The mental ability of the defendant is but one factor for the trial court to consider when determining whether a defendant’s statement is admissible.” Id. at 452 (¶ 10). The trial court in Brown observed that while giving his statement to police, the defendant appeared lucid and communicated appropriately, with no signs of diminished capacity. Id. at 451-52 (¶ 9); see also Veal v. State, 585 So.2d 693, 697 (Miss.1991) (mentally retarded defendant who could read and write and appeared to have understood the process held to have voluntarily, intelligently, and knowingly waived Miranda rights); Smith v. State, 534 So.2d 194, 196-97 (Miss.1988) (defendant with an IQ of 65 who was unable to read, could not recognize the word “waiver,” could not understand multi-syllabic words, and had only the minimal skills necessary for daily functioning, was found to have knowingly waived his Miranda rights).

¶ 13. According to Major Súber, Downey indicated that she could read and write “a little bit.” The video of the interview indicates that she knew her address, Social Security number, and date of birth. Major Súber thoroughly read the waiver of rights to Downey, and she acknowledged that' she had not been threatened or coerced into signing the waiver. Furthermore, Dr. Criss Lott opined in his evaluation that “to a reasonable degree of psychological certainty, ... Mrs. Downey had the capacity to understand and to knowingly, intelligently, and voluntarily waive or assert her [constitutional rights.”

¶ 14. Accordingly, we find the record supports that Downey gave a knowing, intelligent, and voluntary waiver of her Miranda rights.

CONCLUSION

¶ 15. “A trial judge must ‘determine whether the accused, prior to the confession, understood (a) the content and substance of the Miranda warnings and (b) the nature of the charges of which he was accused.’ ” Johnson v. State, 760 So.2d 33, 37 (¶ 13) (Miss.Ct.App.2000) (citation omitted). Based on a review of the evidence, we find the trial court properly evaluated the voluntariness of the confession, and its decision to deny the motion to suppress was not an abuse of discretion.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY OF CONVICTION OF COUNT I, BURGLARY OF A DWELLING,, AND COUNT II, ARSON, AND SENTENCES OF TWELVE YEARS ON EACH COUNT, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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

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

      . The trial court’s order denying the motion was entered on March 29, 2012. Although the notice of appeal was not filed until May 21, 2012, the trial court entered an order reopening the time for appeal, as the defendant was not given timely notice of the March 29, 2012 order. See M.R.A.P. 4(h).


author: GRIFFIS, P.J.,

text:
    Arthur WILDE, Appellant v. MISSISSIPPI PAROLE BOARD, Appellee.
    No. 2012-CP-00359-COA.
    Court of Appeals of Mississippi.
    Nov. 19, 2013.
    Rehearing Denied April 29, 2014.
    Certiorari Denied Aug. 7, 2014.
    Arthur Wilde, appellant, pro se.
    Office of the Attorney General by Anthony Louis Schmidt Jr., James M. Norris, attorneys for appellee.
    Before GRIFFIS, P.J., ISHEE and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. In 1981, Arthur Wilde pled guilty to murder and two counts of aggravated assault. He was sentenced to life in prison for the murder conviction and fifteen years for the aggravated-assault convictions.

¶ 2. On February 25, 2011, Wilde filed a motion for injunctive relief in the Circuit Court of Hinds County. In the motion, Wilde alleged that the Mississippi Parole Board’s denial of his parole was racially motivated and biased. Further, he claimed that the Parole Board discriminates against black inmates and gives them a longer set-off than white inmates convicted of similar crimes. On April 9, 2012, the circuit court dismissed Wilde’s motion with prejudice. It is from this order that Wilde now appeals.

ARGUMENT

I. Whether Wilde has a constitutionally protected interest in parole.

¶ 3. Wilde argues that the Parole Board’s decision to deny him parole was racially motivated and that he was not treated equally and fairly during his parole hearing, as he was discriminated against because of his race. He contends that similarly situated white inmates were treated differently. Wilde argues that the trial court had a duty to investigate his claims that the Parole Board’s decision to deny him parole was racially motivated. In response, the State argues that the Parole Board has absolute discretion to determine who is granted parole in Mississippi and that Wilde did not state a claim for relief based on racial discrimination.

¶ 4. In Mitchell v. State, 561 So.2d 1037, 1039 (Miss.1990), the Mississippi Supreme Court held that “[t]he granting of parole or denial of parole, under [Mississippi Code Annotated section] 47-7-3 [(Rev. 2011) ] is the exclusive responsibility of the state parole board, which is independent of the circuit court’s sentencing authority.” Further, the court stated that “eligibility for parole is solely a matter under the jurisdiction of the state probation and parole board, which must follow the dictates of [section] 47-7-3.” Mitchell, 561 So.2d at 1039. Likewise, in Heafner v. State, 947 So.2d 354, 357 (¶ 11) (Miss.Ct.App.2007), this Court ruled that “[t]he trial court properly held that parole eligibility is normally an executive decision and not one for the judiciary to determine. Generally, a circuit court does not have the authority to determine parole eligibility.” Id. (citing Brown v. State, 731 So.2d 595, 598 (¶ 7) (Miss.1999)).

¶ 5. Here, the Parole Board cited seven reasons Wilde was denied parole: (1) the number of offenses committed, (2) the serious nature of the offenses committed, (3) his prior misdemeanor convictions, (4) community opposition, (5) insufficient time served, (6) his lack of social and educational skills, and (7) his unwillingness to be a law-abiding citizen. In Rochell v. State, 36 So.3d 479, 483 (¶ 14) (Miss.Ct.App.2010), this Court addressed the reasons that supported the defendant’s denial of parole:

Based on our review of the record, the Parole Board denied Rochell parole based on the following: (1) the serious nature of the offense, (2) the number of offenses committed, (3) his police record, (4) community opposition, and (5) insufficient time served. As we held in Justus [v. State, 750 So.2d 1277, 1279 (¶ 6) (Miss.Ct.App.1999) ], the reasons stated by the Parole Board for denying Rochell parole are areas which the Parole Board has authority to consider under Mississippi Code Annotated section 47-7-17 (Rev.2004). [Justus, 750 So.2d at 1279 (¶ 6)]. Thus, “these categories cannot be viewed as arbitrary and capricious.” Id.

¶ 6. Mississippi parole statutes do not provide mandatory language to establish a constitutionally recognized interest in parole. Vice v. State, 679 So.2d 205, 208 (Miss.1996). Instead, the parole statutes employ “the permissive ‘may’ rather than ‘shall,’ [meaning that] prisoners have ‘no constitutionally recognized liberty interest’ in parole.” Id. Further, in Hopson v. Mississippi State Parole Board,, 976 So.2d 973, 975 (¶ 6) (Miss.Ct.App.2008), this Court ruled that “[b]y statute, the Parole Board is given ‘absolute discretion’ to determine who is entitled to parole within the boundaries of the factors set forth in [section] 47-7-3.” As a result, Wilde, as other prisoners, does not have a constitutionally recognized liberty interest in parole.

II. Whether the circuit court erred in dismissing Wilde’s claim of racial discrimination against the Parole Board.

¶ 7. To maintain a claim for racial discrimination, Wilde must present evidence that establishes a violation of his equal-protection rights by the Parole Board in its application of the parole statutes based on his suspect classification. Hopson, 976 So.2d at 976-77 (¶ 12). Wilde lists several cases to support his claim that he was discriminated against. He discusses ways in which he has prepared himself to be a law-abiding citizen by going to school. And he states that a white inmate was granted parole, while he was not. Although he alleges the Parole Board denied him parole because of his race, Wilde has failed to present evidence to support his own mere assertions.

¶ 8. According to Wilde, the white inmate who received parole had been convicted of three counts of armed robbery and was sentenced to three life terms. Wilde claims that because their crimes were similar in nature, it was racial discrimination to grant the white inmate parole, but to deny Wilde parole. Additionally, Wilde alleges that black inmates in general are given longer set-offs than white inmates. But again, Wilde fails to show evidence that establishes a clear violation of his equal-protection rights by the Parole Board.

¶ 9. We agree with the trial judge that Wilde has not presented the evidence necessary to substantiate his claim of racial discrimination. Therefore, finding no reversible error, we affirm the dismissal of his motion.

VIO. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.


author: ROBERTS, J.,

text:
    Henry STOUT, Appellant v. Tracey STOUT, Appellee.
    No. 2012-CA-01349-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2013.
    Rehearing Denied April 22, 2014.
    Certiorari Denied Aug. 7, 2014.

      D. Scott Gibson, attorney for appellant.
    Patricia C. Champagne, attorney for ap-pellee.
    Before IRVING, P.J., ROBERTS and JAMES, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. After over twenty-five years of marriage, Henry Stout and Tracey Stout agreed to an irreconcilable-differences divorce. They submitted several issues for the chancellor to decide, such as child support, property division, and alimony. Displeased with the chancellor’s decision on the issues, Henry filed the present appeal. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Henry and Tracey were married on October 28, 1983. They had three children: Timothy, born August 9, 1985; Rachel, born November 5,1988; and Kendall, born June 25, 1993. Henry and Tracey separated on April 18, 2009. At the time of separation, Timothy was over twenty-one years old, Rachel was twenty years old, and Kendall was fifteen years old. On July 1, 2009, Tracey filed a complaint for divorce, a motion for temporary relief, and a motion for a temporary restraining order. A week later, Henry filed his answer to Tracey’s complaint and a counterclaim for divorce. Both claimed fault-based grounds for divorce. The chancellor entered an agreed temporary order on July 20, 2009. Henry was ordered to pay 20% of his adjusted gross income (AGI) as child support for Rachel and Kendall, for a total of $1,303 per month. Henry was also ordered to pay Tracey spousal support in the amount of $1,000 every two weeks and also to pay any joint marital debts. Tracey was given temporary, exclusive use and possession of the marital home and the responsibility to pay the mortgage.

¶ 3. Then, on January 7, 2011, Henry filed a motion to modify the temporary order and a motion for citation of contempt. Some of the requests in his motion included: a reduction in his child support due to the emancipation of Rachel, reimbursement/credit for the times he continued paying child support for Rachel after the date she was emancipated, and removal of the spousal-support obligations. Tracey filed a motion for contempt and other relief on April 13, 2011. On April 18, 2011, the chancellor held a hearing on the motion. According to the bench ruling, recited into the record by Henry’s attorney, the chancellor ordered Tracey to attend Alcoholics Anonymous meetings twice a week, enjoined her from drinking alcohol to excess, and reduced child support owed by Henry to 14% without applying the statutory cap.

¶ 4. Henry and Tracey ultimately dropped their fault-based complaints for divorce and agreed to an irreconcilable-differences divorce, but they submitted the following issues for the chancellor to decide: the classification of property as marital, separate, or commingled; the demarcation date that the property and debt was no longer considered marital; the equitable distribution of marital and commingled property; the date of emancipation of the two minor children and any credits/reimbursements of support associated with them; the entitlement of either party to credit/reimbursement for overpayment of spousal support, child support, or other payments made to the other spouse; a determination of any owed spousal support, child support, or other payments due under the previous temporary order and bench ruling; the appropriateness of alimony; and the appropriateness of attorney’s fees.

¶ 5. Following a multi-day trial in March 2012, the chancellor granted the irreconcilable-differences divorce and ruled on the issues presented. The parties stipulated that all children of the marriage were emancipated. In regard to child-support issues, the chancellor found that Henry’s child-support obligations ended February 2012 when Kendall became emancipated. He was denied credit or reimbursement for any payments he made before his child-support obligation was modified from 20% to 14% of his AGI as a result of Rachel’s emancipation. The chancellor denied a credit or reimbursement because she determined that Rachel and Kendall continued living with Tracey even after Rachel reached the age of majority. Further, Henry had exercised hardly any visitation with the children since Henry and Tracey separated in 2009. Tracey’s monthly income was much smaller in comparison to Henry’s. Also, the temporary order did not specify that the child-support obligation would be reduced when Rachel reached the age of majority. Next, the chancellor denied Henry’s request that he receive a credit on the 14% of his AGI he paid for the remaining child, Kendall, because he paid $861 monthly instead of $583 monthly. The chancellor found Henry in arrears on that issue because 14% of his monthly AGI should have been $1,057.19 from May-December 2011 and $1,028.40 from January-February 2012. All of these •amounts were above the $861 he actually paid.

¶ 6. After classifying property as separate or marital, the chancellor divided the marital property. She determined the following property to be marital: the marital home; all vehicles purchased prior to the temporary order; 92.5% of Henry’s military retirement benefits; the Federal Employees Retirement System retirement account in Henry’s name valued in 2009; the Public Employees’ Retirement System retirement account in Tracey’s name valued in 2009; Henry’s Thrift Savings Plan valued in 2009; the checking and savings accounts of the parties as of 2009; Henry’s life insurance policy; insurance refunds from USAA Insurance and Wells Fargo; and all other personal property. The chancellor awarded Tracey assets worth $80,952.48, consisting of the marital home, including its $60,000 mortgage; 50% of Henry’s Thrift Savings Plan; Tracey’s PERS retirement account; and her vehicle, also including the debt on the vehicle. Tracey also received 64.75% of Henry’s total monthly retirement benefits. Henry received $50,938.48, including two vehicles and four motorcycles, and 50% of his Thrift Savings Plan. Henry received 35.25% of his total monthly retirement benefits. The remainder of the personal property was split equally at a value of $5,260 to each party. Henry also had to pay half of the credit card bills owed at the time of the temporary order and the full amount of two loans he obtained. Tracey was ordered to pay Henry $200 as half of the cost of the appraisal of the marital home.

¶ 7. The chancellor then considered the issue of alimony, and after applying the Armstrong factors, determined that Tracey was entitled to $1,226 in permanent alimony. Henry was also found in contempt of the temporary order in the amount of $16,446.83. This sum came from past-due child support, the failure to pay Rachel’s car loan, and the failure to pay for half of the children’s college expenses. The chancellor also ordered Henry to pay $8,000 in Tracey’s attorney’s fees after finding him in contempt of the July 20, 2009 temporary order.

¶ 8. Aggrieved by the chancellor’s findings and decision, Henry appeals and raises six issues:

I. The chancellor abused her discretion, committed manifest error, and applied an erroneous legal standard in denying Henry credit for the child support he paid on behalf of Rachel after she became emancipated in November 2009.
II. The chancellor abused her discretion, committed manifest error and applied an erroneous legal standard when after the trial, she set the monthly amount of child support for Kendall retroactively back to May 1, 2011[,] above 14% of $50,000 annual income contrary to the child support statute and putting Henry in contempt and arrears.
III. The chancellor’s finding that Kelly Carr and Henry’s relationship was the ultimate demise of the marriage is not supported by the evidence.
IV. The chancellor’s division of the marital estate was not equitable and should be reversed, specifically: the chancellor’s determination of the value of marital home was improperly based on 2012 values as opposed to the 2009 value of the temporary order; the chancellor’s award to Tracey of 70% of the marital portion of Henry’s military retirement and FERS retirement; the chancellor’s findings of values were incorrect and not supported by the evidence resulting in [a] benefit to Tracey.
V. The chancellor applied an erroneous legal standard in determining that a disparity existed in the parties’ estates sufficient to award Tracey alimony.
VI. The chancellor abused her discretion and committed manifest error in awarding Tracey $8,000 in attorney’s fees.

STANDARD OF REVIEW

¶ 9. “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 [or] clearly erroneous, or an erroneous legal standard was applied.’” McNeese v. McNeese, 119 So.3d 264, 268 (IT 8) (Miss.2013) (quoting Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002)).

ANALYSIS

I. CHILD SUPPORT

¶ 10. Although raised in several issues, this section will address all child-support issues. First, Henry contends that the chancellor erred in not awarding him a credit or reimbursement for the months he paid child support, 20% of his AGI, for both Rachel and Kendall, even though Rachel was emancipated. The Mississippi Supreme Court has defined emancipation as the “freeing of a child for . all period of its minority from its care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent’s legal obligation to support it.” Strack v. Sticklin, 959 So.2d 1, 6 (¶ 19) (Miss.Ct. App.2006) (quoting Burt v. Burt, 841 So.2d 108, 111 (¶ 9) (Miss.2001)). “Occurrence of any one of the statutory events does not automatically mandate emancipation; the statute’s language is permissive and is left to the chancellor’s discretion.” Id.; see also Caldwell v. Caldwell, 823 So.2d 1216, 1221 (¶¶ 18-19) (Miss.Ct.App.2002) (“[A] father does not get an automatic reduction in child support when one child reaches maturity.... [A] chancellor should have the discretion to grant an obligor parent a credit for child support payments which were made on behalf of a child subsequent to that child’s emancipation.”). Additionally in Strack, this Court found that if David Strack “desired to be relieved of his obligation to pay child support, due to the alleged emancipation of the children, it was his responsibility to bring the matter to the attention of the chancellor.” Id. at (¶ 20) (citing Wiles v. Williams, 845 So.2d 709, 711-12 (¶ 12) (Miss.Ct.App.2003)). In the present case, Henry continued paying 20% of his AGI pursuant to the temporary order for a period of eighteen months after Rachel was emancipated. Just as in Strack, Henry had the responsibility to bring this change to the chancellor’s attention and seek a modification of his support obligations. Additionally, case law is clear that it is in the chancellor’s discretion to award a credit for overpayment of child support. In this case, the chancellor clearly explained her reasons for not awarding Henry a credit. Some reasons given were that although Rachel had reached the age of majority, she was still living with Tracey and having Tracey pay for a large portion of her needs. Henry did not exercise visitation with his daughters. Also considered was the fact that the temporary order did not specifically state that child support would be modified or terminated upon the emancipation of one of the children.

¶ 11. It is within the chancellor’s discretion to award a credit, and we do not see that the chancellor abused her discretion. This issue is without merit.

¶ 12. Henry’s next issue is that the chancellor erred in retroactively setting the monthly child support owed for Kendall to a higher amount. The higher amount placed Henry in arrears and contributed to a finding that he was in contempt. In support, Henry argues that in the chancellor’s bench ruling, she erred in failing to provide a written finding stating whether the application of the statutory guideline was reasonable pursuant to Mississippi Code Annotated section 43-19-101(4) (Supp.2013). According to Henry, without a written finding, the chancellor should have capped the amount of child support he owed for Rachel. While the chancellor did fail to specifically address the guideline in her bench ruling beyond stating that the statutory cap did not apply, we find the chancellor’s thorough reasoning in the final judgment to be sufficient. Because, “[w]hen a chancellor makes a ruling [on child support] without specific findings of fact[,] and a party raises the issue of the amount of child support awarded, [an appellate c]ourt will send the issue back to the lower court for the mandatory specific findings of fact[.]” Morris v. Morris, 5 So.3d 476, 495 (¶ 47) (Miss.Ct. App.2008) (quoting McGehee v. Upchurch, 733 So.2d 364, 371 (¶37) (Miss.Ct.App. 1999)). As explained, the chancellor ultimately provided a thoroughly -written finding explaining that the guideline of 14% of Henry’s AGI was appropriate child support even though his income exceeded $50,000. Thus, there would be nothing on this issue for the chancellor to address that she did not address in her final judgment.

¶ 13. Under the same issue, Henry argues that he should have paid $583.33 instead of the $861 he paid; therefore, he is entitled to a credit for the difference. Henry claims that the chancellor erred in finding that he actually owed over $1,000 per month in child support instead of the $583.33 he claims he should have paid or the $861 he actually paid. The record indicates that the chancellor determined Henry’s AGI for 2011 and 2012 based upon evidence presented at trial through Henry’s tax documents and other employment documents. She found that his 2011 monthly AGI was $7,551.42 and 2012 was $7,345.84; thus, 14% for 2011 was $1,057.19 monthly and 2012 was $1,028.40 monthly. As a result, she denied Henry’s request for a credit, and ordered him to pay the difference between the actual amount owed and the $861 he paid. The chancellor did not abuse her discretion, commit manifest error, or apply an incorrect legal standard in her decisions and findings, particularly because she based the amount owed on Henry’s financial documents presented at trial. Her findings were supported by evidence in the record; therefore, these issues are without merit.

II. EQUITABLE DIVISION

¶ 14. In Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994), the supreme court provided the following guidelines for chancellors to consider when equitably dividing a marital estate:

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

After considering the guidelines, the chancellor awarded Tracey assets worth $80,952.48; Henry was awarded $50,938.48 in assets. This total amount did not include Henry’s military retirement benefits, which the chancellor valued at $1,770 per month; the chancellor did not give a lump-sum value. Tracey was awarded 64.75% of his total monthly retirement benefits as part of her estate; Henry received the remaining 35.25%. Henry makes three arguments concerning the equitable distribution of the marital estate.

¶ 15. First, Henry claims that the chancellor improperly valued the marital home at its 2012 value as opposed to its value in 2009 when the temporary order was entered. He claims that due to the incorrect valuation, Tracey received a lower value of assets making it more likely that alimony would be necessary. Two appraisals were done on the home: the 2009 appraisal valued the home at $132,000; the 2012 appraisal valued the home at $105,000. The chancellor used the latter value when assessing the home’s value to Tracey. Henry admits that the chancellor had the discretion to set the dates for valuation of assets, and he cites to no other authority for his proposition that the chancellor is required to use the same date for valuation of all property. In using the 2012 value, the chancellor specifically noted that the house had significantly depreciated, that Tracey had been responsible for the mortgage payments since the separation, and that Henry had abandoned the house. The supreme court has stated that “the chancellor enjoys broad discretion to value property as of any date that, in the chancellor’s view, equity and justice may require.” In re Dissolution of Marriage of Wood, 35 So.3d 507, 516 (¶ 20) (Miss.2010). We can find no case law that a chancellor must use the same date when valuing all the property. Therefore, this issue is without merit.

¶ 16. A more complex issue involves the chancellor’s award of 64.75% of Henry’s military retirement benefits. Henry argues that 10 United States Code section 1408(e) (2009) limited the chancellor from awarding anything over 50% of his military retirement. The statute reads: “The total amount of the disposable retired pay of a member payable under all court orders pursuant to subsection (c) may not exceed 50 percent of such disposable retired pay.” Id. This issue is a matter of first impression in Mississippi; therefore, it is prudent to consult the interpretations of this issue from other jurisdictions. In a slip opinion in Gonzalez v. Gonzalez, No. M2008-07143-COA-R3-CV, 2011 WL 221888, at *5 (Tenn.Ct.App.2011), the Tennessee Court of Appeals stated:

It appears that the United States military does not view § 1408(e)(1) as a limit. The Defense Finance and Accounting Service observes that “the amount of a former spouse’s award is entirely a matter of state law.” DIVIDING MILITARY RETIRED PAY 6 (2006), http:// www.dfas.mil/militarypay/ garnishment/Speeeh5.pdf; see also UNIFORMED SERVICES FORMER SPOUSE’S PROTECTION ACT 2-3 (2010), http:// www.redstone.army.mil/ legal/data/1-usfspa.pdf (“If a state court awarded you 60% of your former spouse’s retired pay and you qualify under this statute to get direct pay, then you would collect 50% through the Finance Center and your former spouse would be responsible for providing the other 10% to you.”) DOMESTIC RELATIONS FROM A MILITARY PERSPECTIVE; FREQUENTLY ASKED QUESTIONS 9 https:www.cnic.navy. mil/na v ycni/groups/publie/docu-ments/document/cniep_al34503.pdf (“The 50% maximum of DRP [disposable retired pay] is a limit on how much retired pay can be paid directly, but it is not a limit on how much a court can award.”).

Although not an exhaustive list, courts in Minnesota, Delaware, Texas, Alabama, Kansas, Washington, Maryland, and Iowa also take this view of the statute. However, several states do consider there to be a 50% limit. The majority view is that the statute is not an absolute cap, but rather a cap on what the government can pay directly to a spouse or former spouse. We find the majority view to be persuasive; therefore, the chancellor did not err in awarding Tracey more than 50% of Henry’s military retirement benefits. This issue is also without merit.

¶ 17. Henry next argues that the chancellor erred in not determining a specific monetary value of his military retirement and assigning a percentage of that value to Tracey’s estate. Had the chancellor added in this value, Henry claims Tracey’s estate would have been much greater and alimony could have been avoided. Without that value, according to Henry, there is ambiguity in the equitable distribution of the marital estate. Military retirement benefits are considered personal property, and as such, are subject to equitable division in a divorce proceeding. Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994). The chancellor placed a monthly value of $1,770.53 per month, but did not determine a lump-sum value. Henry cites to no authority that a chancellor is required to determine a lump-sum value of military retirement benefits. Though not at issue in other cases, there is case law describing a chancellor solely determining the monthly value of the retirement benefits and not a lump sum. However, there is also case law that shows a chancellor actually put a lump monetary value on the retirement benefits. Neither line of cases instructs that one valuation is required or more appropriate than the other. We cannot find that the chancellor erred in not determining a lump-sum amount of the military retirement benefits awarded to Tracey. We also note that the chancellor did take into account the monthly amount Tracey would receive when she determined whether Tracey was entitled to alimony and if so, in what amount.

¶ 18. We do not find that the chancellor erred in her valuation of the marital estate and the subsequent distribution of the estate. Keeping in mind the standard of review and that an equitable division does not necessarily mean an equal division, this issue is without merit.

III. ALIMONY

¶ 19. In determining whether Tracey’s estate met her needs adequately and whether alimony was appropriate, the chancellor applied all the Armstrong factors. In Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), the supreme court outlined twelve factors for chancellors to consider when analyzing alimony:

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

Henry’s monthly AGI was $7,345.84; Tracey’s was $906.13. Tracey’s monthly expenses amounted to $2,798, and Henry’s were $2,392.85. After taking into consideration the monthly income she will receive from the equitable distribution of Henry’s military retirement, Tracey will have $2,043.76 monthly. Henry will still have $6,208.21 monthly. The chancellor found that Henry had a much greater earning capacity due to his employment experience and college education received during the marriage. Tracey, at fifty-two years old, has a high school education and very limited earning capacity. After considering the remaining factors, the chancellor concluded Tracey was entitled to permanent alimony of $1,226.

¶20. “[P]eriodic alimony should only be considered if the chancellor determines that a spouse has suffered a disparity of income and standard of living following the equitable division of the marital assets.” George v. George, 22 So.3d 424, 428 (¶ 6) (Miss.Ct.App.2009) (citations omitted). As the chancellor found, even after receiving her portion of the marital estate, Tracey’s monthly income would barely cover her living expenses, and she would have to pay an increase in taxes due to the award of her portion of Henry’s military retirement and due to the change in her tax status to single "with no dependents. Although Tracey received a larger portion of the marital estate, she also received a portion of the marital debt, thereby lowering the actual value of her estate.

¶ 21. Based on a review of the record, the chancellor properly considered the values of each party’s estate and applied the Armstrong factors. Therefore, no abuse of discretion, manifest error, or inappropriate application of a legal standard was committed by the chancellor. This issue is also without merit.

IY. ADULTERY

¶ 22. Henry next argues that the chancellor erred in finding his adulterous relationship with Kelly Carr to be the ultimate demise of the marital relationship. He submits that the chancellor improperly used this factor to award Tracey a greater portion of the marital estate and alimony.

As was explained above, there is no evidence that Tracey was awarded a greater portion of the marital estate or that she was not entitled to alimony; therefore, this issue is moot. However, while the chancellor noted that Henry’s relationship with Kelly was the ultimate demise of the Stouts’ marriage, she also thoroughly explained several other factors that contributed to the break down of the marriage.

¶ 23. The chancellor noted, when addressing the Ferguson factors, that Henry refused to admit any problem with alcohol and did not attempt marriage counseling or family therapy. Therefore, while the adulterous relationship was a factor in the chancellor’s decision, there is nothing in the record to indicate that Henry was punished as a result. The chancellor also considered both parties’ faults in applying the Armstrong factors, but that Henry’s share of fault was greater due to his adultery and his choice to sever ties with Tracey and the children. However, the remaining Armstrong factors also supported an award of alimony to Tracey. In Davis v. Davis, 832 So.2d 492, 499 (¶ 23) (Miss. 2002), the supreme court upheld a chancellor’s award of alimony when the chancellor considered Dr. Gary Davis’s adultery as a factor. In upholding the finding, it found “there [was] no indication in the record or the rulings that the chancellor weighed too heavily on the adultery factor in making his determination to award Sharon [Davis] alimony.” Id.

¶ 24. There is nothing in the record before us to indicate that the chancellor relied too heavily on this factor. Much of the discussion involving fault was limited to both parties’ alcohol consumption and Henry’s lack of involvement and interest in his children’s lives since the separation, and not on the adulterous relationship. This issue is without merit.

Y. ATTORNEY’S FEES

¶25. Lastly, Henry claims that the chancellor improperly awarded Tracey $8,000 in attorney’s fees because no proof was presented that Tracey could not pay her attorney. Henry submits that the itemized bill Tracey submitted was not sufficient under McKee and that Tracey’s ability to work full-time but failure to do so should have been considered. In her final judgment, the chancellor stated that much of Tracey’s attorney’s fees were incurred due to Henry’s willful contempt for failure to pay child support and other amounts, and Henry actively contested these amounts throughout the proceedings. Therefore, the chancellor found that “Tracey ... is entitled to attorney’s fees incurred for the successful prosecution of her contempt action without a showing of her inability to pay.”

¶ 26. The award of attorney’s fees is left to the discretion of the chancellor. Evans v. Evans, 75 So.3d 1083, 1089 (¶ 22) (Miss.Ct.App.2011) (citing McKee, 418 So.2d at 767). Therefore, “[w]e are reluctant to disturb a chancellor’s discretionary determination whether to award attorney’s fees or the amount of any award.” Id. (citing Smith v. Smith, 614 So.2d 394, 398 (Miss.1993)). “One of the purposes for awarding attorney fees [in a contempt action] is to compensate the prevailing party for losses sustained by reason of the defendant’s noncompliance.” Durr v. Durr, 912 So.2d 1033, 1040 (¶25) (Miss. Ct.App.2005). Thus, “[n]o showing as to the McKee factors is required” where there is a finding of contempt. Patterson v. Patterson, 20 So.3d 65, 73 (¶ 26) (Miss. Ct.App.2009).

¶ 27. In the present case, the chancellor found Henry in contempt based on his failure to abide by the terms of the temporary order and bench ruling. As a result, Tracey was entitled to attorney’s fees without an analysis under McKee. As such, this issue is without merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, MAXWELL AND FAIR, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . Henry filed an answer and amended counter-complaint for divorce on January 4, 2011, and then a second amended answer and amended counter-complaint on January 7, 2011.

      . This Court notes that the monthly amounts owed were actually $1,057.20 for 2011 and $1,028.42 for 2012; however, the chancellor's slight miscalculation does not impact the outcome of the case.

      . In re Madsen, 2002 WL 34552506, at ⅜7 (Bankr.S.D.Iowa 2002); In re MacMeeken, 117 B.R. 642, 645 (D.Kan.1990); Ex Parte Smallwood, 811 So.2d 537, 539-40 (Ala. 2001); Geesaman v. Geesaman, 1993 WL 777094, at *4 (Del.Fam.Ct.1993); Marquis v. Marquis, 175 Md.App. 734, 931 A.2d 1164, 1171 (2007); Deliduka v. Deliduka, 347 N.W.2d 52 (Minn.Ct.App.1984); Grier v. Grier, 731 S.W.2d 931, 933 (Tex. 1987); In re Marriage of Bocanegra, 58 Wash.App. 271, 792 P.2d 1263, 1267-68 (1990); Forney v. Minard, 849 P.2d 724, 729 (Wyo.1993).

      . See Beesley v. Beesley, 114 Idaho 536, 758 P.2d 695, 698-699 (1988); In re Marriage of Bowman, 972 S.W.2d 635, 639 (Mo.Ct.App. 1998).

      . McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982).