text:
    William Paul JACKSON, Jr., Appellant v. Linda L. JACKSON, Appellee.
    No. 2011-CA-01882-COA.
    Court of Appeals of Mississippi.
    May 28, 2013.

      T. Victor Bishop, attorney for appellant.
    Regan S. Russell, New Albany, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. William Paul Jackson Jr. appeals the judgment of the Itawamba County Chancery Court that awarded Linda L. Jackson separate maintenance of $600 a month as well as the use of the home and surrounding land, the proceeds of an income-tax refund check, and other relief. On appeal, Paul raises the following issues: (1) whether Linda sufficiently met the jurisdictional requirements to sustain her separate-maintenance award; (2) whether the separate-maintenance award to Linda should be sustained absent any corroboration of Linda’s case, and whether Linda met her burden of proof for the case; and (3) assuming the award of separate maintenance is sustainable, whether the award of a monthly amount of support almost 150% higher than Paul’s net monthly income constitutes manifest error.

¶ 2. We find that the record reflects Linda failed to present evidence sufficient to sustain the award of separate maintenance. Therefore, the chancellor erroneously awarded the equitable relief of separate maintenance to Linda, due to the lack of requisite findings and evidence showing Linda’s marital conduct, or course of conduct, was not a material factor in causing the parties’ separation. Since this failure of requisite evidence to support the separate-maintenance award is case-dispositive, we reverse and render.

FACTS

¶ 3. Paul and Linda married on March 5, 1991. After their marriage, Paul adopted Linda’s daughter, who is now over twenty-one years old. After approximately twenty years of marriage, Paul separated from Linda on or about March 5, 2011.

¶ 4. Paul testified that a cumulation of events led to his departure from the marital home. Paul testified that while they were married, Linda repeatedly demanded that he leave the marital home, and he stated that Linda repeatedly told him that the marital home and land were hers. Regarding the home and residential-property ownership, the record shows that Linda’s parents owned the home in which Paul and Linda resided, and the property deed reflects Linda as the sole owner of the real property subject to her parents’ life estate. Paul testified that Linda often told him that she did not love him, and he asserted that she rarely engaged in sexual relations with him. With respect to Linda’s conduct contributing to the parties’ separation, Paul further stated that Linda never cooked; she failed to assist with household duties; and she failed to support him in his farm work or other efforts. Paul asserts that Linda also kept their financial affairs separate, specifically citing to secretive behavior when she received approximately $200,000 from an inheritance and converted a large portion of the money into $100 bills, with no explanation as to where that money went. In explaining the cumulative effect of Linda’s behavior upon the marriage and his decision to leave the marital home in March 5, 2011, Paul testified: “[S]he kept telling me repeatedly over the period of years, and I finally decided I didn’t have to live like thatf;] I could go and do something else.... [I]n March, I decided I didn’t have to do that. I just said, ‘There’s no use, I don’t have to live like this anymore.’ ” Following the separation, Paul testified that he rented and lived in a house in Mantachie, Mississippi, until he got an eviction notice in September 2011. Paul admitted to forming a relationship with Bonnie Jones in June 2011, months after his separation from Linda. Paul stated that following the eviction, he moved into a house with Bonnie.

¶ 5. We now turn to review the facts in the record pertaining to Paul’s marital fault contributing to the separation. Linda testified that Paul left the marital residence because of his affair -with Bonnie, which she contended started in December 2010. Linda claimed that Paul started sending text messages to Bonnie during the night, at one time sending her 217 text messages in approximately two days. Linda testified that Paul admitted to her his infidelity with Bonnie prior to leaving the marital home in March 2011. Linda further testified that she tried unsuccessfully to “get him to work things out,” and that she “was just devastated.” Linda denied telling Paul to leave the marital home, and she indicated that she remained open to reconciliation with Paul, albeit with certain conditions. Linda testified that Paul would need to receive “help for some issues that he’s had,” and that the “marriage would have to have some issues worked out, some relationship counseling!.]” The record provides no testimony or other evidence to explain what changes or conditions Linda required Paul to satisfy before she would reconcile with him.

¶ 6. Gail Whitaker, the sole witness other than the parties, testified that after separating from Linda, Paul rented a home from her in March 2011. Gail testi-lied that Paul only stayed in the home for a week or two. Gail stated that after Paul quit staying in the house, he went “to her home,” referencing Bonnie. Gail provided that she became aware of Paul and Bonnie’s extramarital relationship when Bonnie accompanied Paul to Gail’s home in July 2011, some months after the separation in March 2011.

¶ 7. On June 20, 2011, Linda filed a complaint against Paul for separate maintenance. In her complaint, Linda sought support, use and possession of the home and land, and other relief. Paul responded with his answer in which he denied Linda’s entitlement to relief, and with his counter-complaint in which he sought certain personal property and distribution of the parties’ recent income-tax refund check. Following a hearing on August 25, 2011, the chancellor timely rendered an opinion and judgment on November 16, 2011, in which he awarded Linda the $600-per-month separate-maintenance award currently disputed on appeal, the use of the home, the income-tax refund check, and other relief. Significantly, the chancellor’s order provides no findings as to whether Linda’s marital misconduct, or course of such conduct, materially contributed to the separation or not.

¶ 8. After hearing the testimony and the evidence, the chancellor found Linda’s claims credible regarding the extramarital affair between Paul and Bonnie, and the chancellor also acknowledged evidence in the record showing Linda’s marital misconduct Paúl argued contributed to the separation. While the chancellor indeed acknowledged evidence in the record of Linda’s marital misconduct during the last five years of marriage, the chancellor provided no findings as to whether Linda’s marital misconduct contributed, materially or otherwise, to the separation. The chancellor acknowledged the following evidence of Linda’s marital misconduct: lack of companionship and consortium; failure to contribute to household duties; and secretive financial dealings. The chancellor’s decision even acknowledged Linda’s failure to disclose her assets and separate property to the court in her Uniform Chancery Court Rule 8.05 financial statement, wherein Linda failed to disclose her separate remainder interest in real property, her business-ownership interest, the residence provided to her at no cost, and her ownership of two trailers. The chancellor also acknowledged Linda diverted $97,000 of approximately $200,000 from an inheritance for unknown uses, and she disclosed none of this money in her Rule 8.05 financial statement. In his order, the chancellor found, in part, as follows in regard to the parties’ financial conditions:

Paul works regularly. Indeed, he is engaged in a number of business ventures. He is the principal in Jackson Truck Lines and has a number of trucks and trailers[;] he farms and has farm equipment[;] he has an interest in cattle; he has a used car and truck business[;] and he raises hay which he sells to the public.
Although Paul[ ] and Linda’s 2010 Joint Individual Income Tax Return shows a total income of $4,207 and an adjusted gross income of $3,916, it is also reflected that Paul had a higher gross income. Moreover, Paul’s bank statements reflected that the amount of money moving through Paul’s bank account was considerable!].] To the court’s amazement, Paul’s 8.05[f|inancial [statement ... claimed a net monthly pay of $313.34, a total monthly income of $4,540 and total monthly expenses of $9,429[,] in addition to monthly installment payments of $1,457.06.
While the court must take Paul’s assertion that the contents of his [Rule] 8.05[f]inancial [statement ... are “true and correct,” the court finds that Paul enjoys good health, has the ability to earn and is in fact earning a living, and has been able to make purchases since he and Linda separated. These include a new hay bailer, a computer, a flat screen television, a deep freezer and a refrigerator.
Linda’s [Rule] 8.05[f]inancial [statement, which is part of the court file, is completely inadequate. It only indicates Linda’s income and her expenses. It does not indicate that Linda has a remainder interest in real property and that she lives on that property at no cost. Nor does Linda’s [Rule] 8.05[f]i-nancial [statement indicate her ownership interest in Pet Palace, a business that played prominently in the parties’ testimony.
Paul offered no proof that Pet Palace was an income producing endeavor.
In addition to Pet Palace[,] Paul claimed that Linda possessed two trailers full of rustic furniture which she could sell to produce income. This would be in addition to the $7,000 received from Linda from the sale of scrap metal after the parties separated. No proof was offered by Linda or Paul as to the amount which would be generated by the sale of the rustic furniture contained in the two trailers.
It must be remembered that Linda has been found disabled by the Social Security Administration. Her only stated income is $708 monthly. Her [Rule] 8.05[f]inancial [statement does not show savings or personal property. The court is mindful that in approximately 2002, Linda received about $200,000 and converted $97,000 into $100 bills which she carried from the bank. The explanation as to how these funds were disposed of was completely unconvincing and unsat-isfaetory. Also of note is the fact that the parties after 2000 or 2001 essentially had separate economic lives.

¶ 9. Aggrieved with the chancery court’s award of separate maintenance to Linda, Paul now appeals.

STANDARD OF REVIEW

¶ 10. This Court employs a limited standard of review when considering domestic-relations cases. Welch v. Welch, 98 So.3d 1133, 1134 (¶ 7) (Miss.Ct.App.2012). “Consequently, an appellate court will not disturb the chancery court’s findings unless such findings are manifestly wrong [or] clearly erroneous, or the court applied the wrong legal standard.” Id.

¶ 11. The factual findings of the chancellor are reviewed to determine if the award is supported by substantial evidence or whether the decision reflects manifest error. Fore v. Fore, 109 So.3d 137, 138 (¶ 6) (Miss.Ct.App.2013); see also Rodgers v. Rodgers, 349 So.2d 540, 541 (Miss.1977) (finding that where the wife’s course of conduct was a material factor in causing the separation at least equal to, if not great than, that of the husband, the decree of separate maintenance was erroneous); Tackett v. Tackett, 967 So.2d 1264, 1266-67 (¶¶ 8-10) (Miss.Ct.App.2007) (finding that the record supported the award of separate maintenance since evidence showed the wife’s conduct did not materially contribute to the material separation). Additionally and significant to our review of this case, the power of the court to grant the equitable relief of separate maintenance must be based on the requisites of a separation without material fault of the petitioner or requesting spouse and willful abandonment of her by the husband with refusal to support her. See Rodgers, 349 So.2d at 541; Lynch v. Lynch, 616 So.2d 294, 296 (Miss.1993); Pool v. Pool, 989 So.2d 920, 927 (¶¶ 20-21) (Miss.Ct.App.2008).

¶ 12. We acknowledge that on appeal, the amount of a separate-maintenance award is reviewed for abuse of discretion. See Shorter v. Shorter, 740 So.2d 352, 355 (¶10) (Miss.Ct.App.1999). A spouse entitled to separate maintenance is entitled to the same standard of living as if the parties still cohabited. Stanford v. Stanford, 734 So.2d 359, 361 (¶ 3) (Miss.Ct.App.1999). However, the chancellor must not overlook that the payor should lead as normal of a life as is reasonably possible with a decent standard of living. See Daigle v. Daigle, 626 So.2d 140, 145 (Miss.1993) (providing the six factors courts must consider in determining the amount of separate maintenance awarded).

¶ 13. Where the trial court provides no express findings of fact as to an element or requirement of proof, “[o]n appellate review we look at those findings which should have been made incident to the entry of the final judgment to determine whether the record contains substantial evidence to support them.” Day v. Day, 501 So.2d 353, 356 (Miss.1987); see Lynch, 616 So.2d at 296-97 (finding chancellor manifestly erred by awarding wife separate maintenance where there was no evidence husband refused to support wife and chancellor found wife not without fault in causing separation, displayed by her persistent nagging and accusations).

DISCUSSION

I. Whether Linda sufficiently met the jurisdictional requirements to sustain her separate-maintenance award.

II. Whether the separate-maintenance award should be sustained absent any corroboration of Linda’s case.

¶ 14. Paul argues that Linda failed to sufficiently meet the jurisdictional requirements to sustain her separate-maintenance award. In support of his argument, Paul asserts that Linda’s misconduct materially contributed to the separation of the parties, and he argues that his conduct failed to constitute willful abandonment of Linda accompanied by his refusal to support her. Paul claims that he only left the marital home because of the cumulative effect of events occurring over a five to six year period prior to the separation. Paul identifies Linda’s marital misconduct that materially contributed to the separation as the following: Linda told him she did not love him; she rarely engaged in sexual relations with him; she failed to support his efforts at farm work, household duties, or other business ventures; she never cooked meals; she acted secretively about her financial affairs; and she repeatedly threatened him to get his clothes and leave the marital home. Paul asserts that Linda failed to provide accurate information to the chancery court regarding her personal property, income, and assets. Additionally, Paul argues that the chancellor erred in awarding Linda separate maintenance absent any corroboration of Linda’s case.

¶ 15. We agree with Paul’s argument to the extent that the record reflects that Linda failed to meet the jurisdictional requirements necessary to support an award of separate maintenance, because she failed to show that her marital misconduct did not contribute to the separation. See Rodgers, 349 So.2d at 541. However, evidence in the record supports the chancellor’s factual finding as to the credibility of Linda’s claim that Paul engaged in an extramarital affair. Therefore, we find no abuse of discretion in the chancellor’s finding that Paul engaged in marital misconduct by engaging in an extramarital relationship. However, more than just Paul’s fault contributing to the separation must be shown to support the equitable relief of separate maintenance. Equity requires that Linda show that she is without marital fault in order to support an award of separate maintenance.

¶ 16. We acknowledge that “[s]eparate maintenance is ... court-created equitable relief based upon the marriage relationship and is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance of her until such time as they may be reconciled to each other.” Forthner v. Forthner, 52 So.3d 1212, 1219 (¶ 13) (Miss.Ct.App.2010). Moreover, Linda bore the burden of proof to show more than Paul’s marital misconduct. “The granting of separate maintenance is premised upon the existence of a valid marriage contract” and premised upon a showing that “there is no significant conduct on the part of the requesting spouse that negatively impacts the enjoyment of the marriage contract.” Id. An award of separate maintenance arises from equitable principles, and equity requires that, as the requesting spouse, Linda show no significant conduct on her part negatively impacted the marriage or contributed to the separation. Linda failed to meet the evidentiary burden required to sustain a separate-maintenance award. Linda also failed in her burden to show that Paul refused to support her, as reflected in the omissions in her Rule 8.05 financial statement. Linda failed to disclose her free residence, real-property remainder interest, business interests, and other assets. We now turn to address jurisprudence applicable to separate maintenance and to the facts of this case.

¶ 17. In Rodgers, 349 So.2d at 541, the Mississippi Supreme Court explained that the jurisdictional basis of a separate-maintenance decree stems from equitable principles first laid down in Mississippi in Garland v. Garland, 50 Miss. 694 (1874). The very power of the court to grant separate maintenance was based upon the following two requirements: (1) a separation without fault on the part of the wife, and (b) the husband’s willful abandonment of her with refusal to provide support to her. Rodgers, 349 So.2d at 541. The Rodgers court explained that these two' requirements must be satisfied in order for the court to possess the equitable power to order separate maintenance. Id. The court further explained that the law applicable to separate-maintenance awards includes no requirement that the requesting spouse be blameless. Id.

¶ 18. As previously discussed, our jurisprudence establishes that in order for the court to equitably award séparate maintenance, the misconduct of the abandoned spouse must not have materially contributed to the separation. See id. In Rodgers, the supreme court provided guidance explaining that the requesting spouse need not be blameless or without any fault before invoking the equity required for separate maintenance. Id. The supreme court explained that where a wife’s course of conduct is a material factor in the separation at least equal to, if not greater than, that of the husband, the decree of separate maintenance is erroneous. Id. The supreme court in Rodgers found such an award erroneous since the power of the chancery court to grant separate maintenance is based on a separation without fault on the wife’s part and willful abandonment of her by the husband with a refusal by him to support her. Id.

¶ 19. In this case, the chancellor found in his memorandum opinion and judgment that the proof revealed that Linda and Paul, while living together for twenty years, began experiencing marital problems approximately five years prior to Paul’s departure from the marital home. The chancellor acknowledged in his opinion and judgment that Paul testified as to Linda’s marital fault — she began telling Paul to get out, that she did not love him, and that the home where they resided was her place, not his. The chancellor further acknowledged that Paul testified as to the following marital fault of Linda: he had to cook his own meals, including breakfast and dinner; the dining-room table had not been used in over ten years; and Linda would not even give him a ride to the fields if he needed it. The chancellor also found that Paul testified that the most recent misconduct of Linda leading to the separation pertained to Linda’s accusations that he was having an affair. As previously noted, Paul claimed that Bonnie was not his girlfriend until June 2011, several months after the March 2011 separation.

¶ 20. The chancellor found credible Linda’s claims of an extramarital affair between Paul and Bonnie, and as previously set forth, we find no abuse of discretion in this factual finding. The dispositive issue in this case pertains to the lack of other evidence necessary to support the award. The chancellor acknowledged in his findings that Linda asserted that she wanted to work things out with Paul; that she still loved him; and that she would reconcile if Paul met certain unspecified conditions. Linda bore the burden to establish in the record a present willingness to reconcile and to show that she had not engaged in significant marital misconduct contributing to the separation. See Day, 501 So-.2d at 357. Without findings determining no significant misconduct of Linda contributed to the separation, the chancellor’s opinion began identifying the assets and finances of the parties, as well as ascertaining the income-earning potential and health of the parties. This included a review of bank statements and the Rule 8.05 financial statements of each party. As noted, the chancellor found Linda’s explanation of her finances lacked credibility and was unsatisfactory with respect to her failure to disclose how she used the approximately $200,000 she received in 2002.

¶ 21. After reviewing the finances of the parties, the chancellor found that separate maintenance constituted a judicial command to one spouse to resume cohabitation or to provide support. Without applying equity principles to Linda’s behavior, the chancellor awarded separate maintenance, providing that even if Linda had contributed to the separation and wanted to work out the parties’ problems, Paul had no intentions of resuming cohabitation. The chancellor’s analysis fails to embrace that no equitable jurisdiction existed in this case to award separate maintenance without first applying the princi-pies of equity to the marriage relationship and finding Linda, the requesting spouse, was without significant marital fault. A review of the record shows that the chancellor erred in failing to require the evidence necessary to support the separate-maintenance award. The equitable relief of separate maintenance requires the requisite evidence of a separation without fault of the wife as well as evidence showing no significant misconduct on her behalf materially contributed to the separation of the parties. Rodgers, 349 So.2d at 541. As explained by the supreme court in Rodgers, the power of the chancery court to grant the equitable relief of separate maintenance must be based on a separation without fault on the wife’s part and on the willful abandonment of her by the husband with a refusal by him to support her. Id. Albeit well intentioned, a separate-maintenance decree lacking the requisite evidence is erroneous. Id.; see also Pool, 989 So.2d at 927 (¶¶ 20-21) (noting that two requisites for power of chancellor to award separate maintenance include (1) separation without fault by wife, and (2) that husband willfully abandoned her and refused to support her). Here, after failing to require Linda to prove the requisite separation without material fault on her behalf, the chancellor stated that

there is little difference between a suit for separate maintenance and a suit for alimony and substantially the same principles of law apply in fixing the amount.... [T]he amount of separate maintenance should be a sum sufficient to provide as nearly as possible the same support and maintenance as the wife would have received if the parties had continued normal cohabitation[.]

¶ 22. While alimony and separate maintenance pertain to financial support, the awards differ as to the evidence required. The chancellor erred in applying the requisite evidentiary requirements of alimony to an equitable award of separate maintenance. This Court recognizes that in divorce proceedings, any award of alimony must be based upon a determination of need for such award upon a finding of a deficit suffered by a party after completion of the equitable division of marital property. See generally Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). In divorce proceedings, once a marriage is dissolved, the equitable division of property is governed by the law as set forth in Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994), and Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). If the equitable division of property leaves neither spouse with a deficit with respect to having sufficient resources and assets to meet his or her needs and living expenses, then no alimony award is appropriate. Lauro v. Lauro, 847 So.2d 843, 848 (¶ 13) (Miss.2003); Seymour v. Seymour, 960 So.2d 513, 519 (¶ 16) (Miss.Ct.App.2006). In contrast to the required showing of a deficit for an alimony award, a separate-maintenance decree provides equitable relief entitling the petitioning spouse claiming abandonment to be supported in the same standard of living as if the parties were still cohabiting. Stanford v. Stanford, 734 So.2d 359, 361 (¶3) (Miss.Ct.App.1999). The amount of a separate-maintenance award is determined by applying six factors as set forth in Daigle, 626 So.2d at 145, and Honts v. Honts, 690 So.2d 1151, 1153 (Miss.1997).

¶ 23. Divorce and alimony are distinct concepts from separate maintenance, and divorce and alimony are governed by statute, not common law. Dearman v. Dearman, 811 So.2d 308, 312 (¶12) (Miss.Ct.App.2001); see also Miss.Code Ann. § 93-5-17 (Rev.2004); Miss.Code Ann. § 93-5-23 (Supp.2012). Separate maintenance, however, arises from equitable principles established by case law, not statutory law. The spouse seeking the equitable relief of separate maintenance must show that he or she did not engage in marital misconduct that materially contributed to the separation in order for the court to possess the equitable power to enforce the continuing duty of financial support regarding the existing marital relationship.

¶ 24. With respect to the chancellor’s reference to the futility of reconciliation as a basis to award separate maintenance, we acknowledge that upon reconciliation, the support obligation of a separate-maintenance award indeed becomes null and void. See Watkins v. Watkins, 942 So.2d 224, 228 (¶ 12) (Miss.Ct.App.2006). However, the prospect of reconciliation is a distinct issue from whether equity supports separate maintenance or whether both spouses engaged in significant misconduct materially contributing to the separation. See Day, 501 So.2d at 357 (discussing reconciliation); Pool, 989 So.2d at 927 (¶ 21) (providing the two requisites for power of court to award equitable relief of separate maintenance).

¶ 25. Upon reviewing the record, we find that the chancellor erred in failing to find, before awarding separate maintenance, that no significant marital misconduct by Linda materially contributed negatively to the separation. See Rodgers, 349 So.2d at 541. Also, Linda failed to establish that Paul refused to support her after the separation, due to the significant omissions in her Rule 8.05 financial statement.

¶ 26. The record shows that Paul’s separation from Linda occurred after the culmination of a five to six year period preceding the separation during which Linda’s marital fault progressively increased by her adamantly proclaiming no love for Paul; secretly conducting financial dealings; failing to provide companionship or other support for the relationship; and demanding he leave the marital home. As stated, Paul testified that Linda repeatedly reminded him that the marital house and land were hers and that he held no interest in the property. However, Linda oddly excluded mention of her free residence and her real-property remainder interest in her Rule 8.05 financial statement. “A spouse is not entitled to separate maintenance when that spouse’s conduct has materially contributed to the separation.” Forthner, 52 So.3d at 1220 (¶ 17). In the absence of an explicit finding by the chancellor, we are required to review the record to determine if substantial evidence supports a separate-maintenance award. Upon review of the record, we find Linda failed to establish by substantial evidence that no significant misconduct on her behalf contributed to the separation.

¶ 27. Based on the foregoing, we must reverse and render the chancery court’s award of separate maintenance to Linda.

III. Assuming the award of separate maintenance is sustainable, whether the amount of the award of separate maintenance constituted manifest error.

¶ 28. As Issues I and II are case-dis-positive, the remaining issue is rendered moot.

¶ 29. THE JUDGMENT OF THE ITAWAMBA COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . See Rodgers v. Rodgers, 349 So.2d 540, 541 (Miss. 1977).

      . See Lynch v. Lynch, 616 So.2d 294, 296 (Miss.1993); Day v. Day, 501 So.2d 353, 357 (Miss. 1987).

      . See Rodgers, 349 So.2d at 541.

      . See also Robinson v. Robinson, 554 So.2d 300, 304 (Miss.1989).

      . The application of equal-protection principles allows either spouse to seek the equitable remedy of separate maintenance. However, since Linda is the petitioner in this case claiming the entitlement, this opinion refers to the wife as the petitioner in its analysis.

      . The chancellor noted that Bonnie is much younger than Paul and that Bonnie and Paul lived together at the time of the chancellor’s opinion and judgment. As discussed previously, we review factual findings of the chancellor for abuse of discretion and will affirm if they are supported by substantial evidence.

      . In McDonald v. McDonald, 69 So.3d 61, 65 (¶ 8) (Miss.Ct.App.2011), this Court found that "[a] decree for separate maintenance is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance for her until such time as they may be reconciled to each other.”

      . See Churchill v. Churchill, 467 So.2d 948, 951 (Miss.1985).

      . See Kergosien v. Kergosien, 471 So.2d 1206, 1211 (Miss.1985) ("Separate maintenance generally will not be awarded to a spouse whose conduct was a material factor in the separation at least equal to that of the other spouse.”).

      . See Lynch, 616 So.2d at 296-97.

      .We find unnecessary any further review with respect to the amount of separate maintenance since we find the award erroneous in lacking the requisite evidence of a separation without significant misconduct of the spouse seeking the equitable relief. Rodgers, 349 So.2d at 541; Pool, 989 So.2d at 927 (Ml 20-21).


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Curtis C. EVANS a/k/a Curtis Chrishaun Evans a/k/a Curtis Evans, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01065-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.

      Curtis C. Evans, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Curtis Evans appeals the denial of his motion for post-conviction collateral relief (PCCR). Evans argues that he received ineffective assistance of counsel and that his guilty plea was involuntary. We find no error and affirm.

FACTS

¶ 2. Evans was indicted for attempted robbery under Mississippi Code Annotated section 97-1-7 (Rev.2006) and as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007), due to two prior felony convictions for armed robbery and burglary. At the time of the crime that is the subject of this appeal, Evans was under post-release supervision, with eight years having been suspended from his earlier sentence. The armed robbery charge resulted in the revocation of Evans’s post-release supervision, and his suspended sentence was reinstated. Evans was ordered to serve the remaining eight years of that sentence day-for-day.

¶ 3. On June 6, 2011, Evans entered a guilty plea. The circuit court sentenced Evans to a term of incarceration of six years, to be served day-for-day and to run consecutively to the eight-year sentence that Evans was then serving.

¶ 4. On May 4, 2012, Evans filed his PCCR motion. In his motion, Evans argued that his lawyer did not advise him of a speedy-trial right, gave bad advice to plead guilty, did not let him read the plea petition, and did not know he was indicted as a habitual offender. Evans claimed that his right to due process was denied because the judge did not address him personally or inform him of what constitutional rights he waived by pleading guilty. Evans also alleged that he did not really sign or hear his rights or waiver of rights. He stated he “has now learned” that the detective coerced him into signing those two forms. He stated that he was not able to obtain any other affidavits. Evans stated that his mother and sister told him that his lawyer said he had little chance of winning.

¶ 5. On June 4, 2012, the circuit court issued an order that denied Evans’s motion. Evans filed a timely notice of appeal.

STANDARD OF REVIEW

¶ 6. A circuit court’s denial of post-conviction collateral relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

1. Guilty Plea

¶7. Evans argues his guilty plea was involuntary and unintelligent. Evans claims that the judge did not inform him of the constitutional rights he would be waiving. Evans argues that the court reporter integrated lies into the transcript of the plea hearing and that the court reporter tampered with the tape so that it would match the transcript. Evans argues he was coerced by the police, but never states how or what police said to him or did to him. He also argues he was coerced to plead guilty because his family would disown him if he plead not guilty.

¶ 8. A guilty plea is enforceable only if entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). A plea is voluntary and intelligent when the defendant knows the nature of the charges against him and the consequences of a guilty plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). At the plea hearing, the circuit judge read aloud each element of Evans’s charge. Evans responded that he did in fact hit someone near the Seabee Base in Gulfport, Mississippi, in an attempt to steal the victim’s cash, but the victim hit Evans back.

¶ 9. Great weight may be placed on a defendant’s sworn testimony given at a plea hearing, because “[sjolemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). A defendant faces a “high hurdle in recanting that testimony.” Pevey v. State, 914 So.2d 1287, 1290 (¶ 8) (Miss.Ct.App.2005).

¶ 10. The plea colloquy demonstrates that Evans’s guilty plea was voluntary and intelligent. Before Evans entered his plea, the circuit court explained that when a defendant enters a guilty plea, the defendant waives certain rights, challenges, and claims that otherwise may be available to him at a trial:

THE COURT: When you enter a plea of guilty you waive and give up some constitutional rights that all defendants who are charged with a felony have. They’re set out here in paragraph five of your plea petition that you tell me you’ve read, but I’m going to discuss the main ones with you to make sure you understand those.
You have the right to have your case tried by a jury of your peers. As you stand in front of me today, under the law you’re presumed to be innocent of these charges. The [Sjtate has the burden of proving the charge against you beyond a reasonable doubt. As a defendant you don’t have to prove anything. You can require that I impanel a jury to try your case, at which time your lawyers would have the right to confront and cross-examine any witnesses called by the [S]tate to testify against you. You have the right against self[-]incrimination. That means you can be a witness in your own case if you want to, but you don’t have to get on the witness stand[,] and nobody can force you to be a witness in the case.
If the case is tried and a jury convicts you, you have the right to appeal that verdict to the Mississippi Supreme Court. If you enter a plea of guilty here today, you waive and give up all of those rights, together with the others set out in paragraph five of your plea petition. Do you understand that, ... Mr. Evans?
DEFENDANT EVANS: Yes, sir.
THE COURT: Did anybody put any pressure, coerce you, force you or threaten you in any way to get you to plead guilty? ... Mr. Evans?
DEFENDANT EVANS: No, sir.

¶ 11. Here, the only evidence offered by Evans to support the claim that his guilty plea was involuntary was his own unsupported assertions. Evans’s arguments completely ignore the testimony that he gave when he pled guilty. The record contradicts Evans’ assertions in his motion. There was no evidence of police coercion or that the court reporter tampered with the transcript and the tape of the plea hearing. Accordingly, we find that Evans’s guilty plea was entered voluntarily and intelligently. Therefore, we find this issue is without merit.

2. Ineffective Assistance of Counsel

¶ 12. Evans argues that his counsel was ineffective when she: (1) did not object to the judge’s failure to inform Evans of his constitutional rights; (2) gave wrongful advice to plead guilty when the evidence proved differently; (3) did not know he was indicted as a habitual offender; and (4) denied his right to read the plea petition. The record reveals that the judge thoroughly informed Evans of his constitutional rights.

¶ 13. To prove ineffective assistance of counsel, Evans must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Evans to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, Evans must “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

¶ 14. In cases involving post-conviction collateral relief, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995). As this case involves a guilty plea, Evans must show that, but for counsel’s performance, he would have gone to trial, and the outcome would have been different. See Mitchell v. State, 58 So.3d 59, 62 (¶ 15) (Miss.Ct.App.2011). Evans has made no such showing.

¶ 15. Evans offers only his statements that allege the deficiencies of his counsel. Such allegations directly contradict his statements made under oath. Evans testified that he had read the plea petition and had discussed it with his counsel. Evans testified that he was satisfied with his counsel’s representation. Evans testified that he understood that the indictment charged him as a habitual offender with a maximum sentence of fifteen years. Evans testified that he knew any sentence he was given for the charge would have to be served day-for-day.

¶ 16. Further, Evans failed to show his counsel prejudiced the result in his case. Evans admitted that he tried to rob a man by hitting him first, but that the man hit him back and prevented him from completing the robbery. Evans has not proven an ineffective-assistance-of-counsel claim as to the advice he received to plead guilty. Therefore, these issues have no merit.

3. Other Due-Process Arguments

¶ 17. Evans argues that his due-process rights were violated because the judge did not address him personally. The circuit “court must address the defendant personally to inquire and determine that the defendant is competent to understand the nature of the charge, and that the defendant understands the maximum and minimum sentences for the crime.” Myles v. State, 988 So.2d 436, 438 (¶ 4) (Miss. Ct.App.2008) (citing URCCC 8.04(A)(4)).

¶ 18. The record reveals that the judge personally addressed Evans over twenty times at the plea hearing. The record reflects that Evans’s plea and those of three others were entered during the same proceeding. However, the circuit judge individually addressed Evans about his attempted-robbery charge. Although the circuit judge advised the defendants of their constitutional rights as a group, the circuit judge questioned each defendant individually as to his or her comprehension of these rights. The record reflects Evans’s individual responses. Therefore, Evans’s assertions that the judge did not address him personally are belied by the record. There is no merit to this argument.

¶ 19. Because we find that the issues Evans raises on appeal are without merit, this Court affirms the circuit court’s denial of Evans’s motion for post-conviction collateral relief.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . Evans has abandoned this argument on appeal.


author: ISHEE, J.,

text:
    Vesta HATHAWAY, Appellant, v. Adam LEWIS, M.D., and Jacob Mathis, M.D., Appellees.
    No. 2011-CA-01524-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.

      Carey R. Varnado, Hattiesburg, attorney for appellant.
    Whitman B. Johnson III, Michael F. Myers, Katrina Sandifer Brown, Jackson, attorneys for appellees.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. This appeal arises from a February 2011 jury verdict in a medical-negligence case finding in favor of the Appellees, Dr. Adam Lewis and Dr. Jacob Mathis. Vesta Hathaway had filed a complaint against Dr. Lewis and Dr. Mathis alleging they were negligent in failing to discover and remove a bone fragment caused by surgery. At trial, various experts testified regarding whether a bone fragment did, in fact, exist. The jury believed the testimony provided by the defense expert, Dr. Gordon Sze, and found in favor of Drs. Lewis and Mathis. Hathaway filed a motion for a new trial and a later amended motion for a new trial. Both were denied by the circuit court. On appeal, Hathaway argues: (1) Dr. Sze provided false testimony at trial, which should result in the reversal of the judgment entered and a remand for a new trial; and (2) the trial court erred by refusing to grant Hathaway’s motion for a new trial. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In December 2004, Hathaway underwent an anterior lateral fusion on her lower spine. The surgery was performed by Dr. Lewis. After the surgery, Hathaway developed a blood clot in her left leg but had no other complications at that time. While Hathaway was still in the hospital, Dr. Mathis evaluated her and ordered a magnetic-resonance-imaging test (MRI). According to Dr. Mathis, the MRI did not reveal any blood, disc, or bone at the surgical site.

¶3. After being discharged from the hospital, Hathaway began experiencing pain at the surgical site and urinary incontinence. She saw Dr. Horace Mitchell for her symptoms. In Dr. Mitchell’s opinion, Dr. Lewis had failed to recognize and remove a bone fragment caused by the surgery. Dr. Mitchell performed surgery on Hathaway to correct the problem, but the surgery was only partially successful.

¶4. The issue surrounding the alleged bone fragment is not whether Dr. Lewis was negligent during the surgery, but whether he and Dr. Mathis were negligent in failing to discover the alleged bone fragment if it did, in fact, exist. Two experts testified at trial regarding Hathaway’s MRI scans. Dr. Kendall Jones testified on behalf of Hathaway. According to Dr. Jones, Hathaway’s MRI studies revealed a bone fragment that had likely broken off during surgery. However, Dr. Sze, the defense expert, opined the post-surgery radiographs showed a normally occurring osteophyte, or “bone spur.” He contended that there was no bone fragment caused by the surgery.

¶5. On February 27, 2007, Hathaway filed a complaint in the First Judicial District of Hinds County Circuit Court against St. Dominic — Jackson Memorial Hospital, Dr. Lewis, Dr. Emanuel Fajardo, Cogent Healthcare of Jackson LLC, Cogent Healthcare of Mississippi Inc., and John Does 1-20. Dr. Fajardo, Cogent Healthcare of Jackson, and Cogent Healthcare of Mississippi were later dismissed without prejudice. St. Dominic— Jackson Memorial Hospital was dismissed with prejudice. A jury trial began on January 24, 2011. On February 1, 2011, the jury found in favor of Dr. Lewis and Dr. Mathis.

¶ 6. On February 10, 2011, Hathaway filed a motion for a new trial alleging the testimony of the defense expert, Dr. Sze, was untruthful. On April 1, 2011, she filed an amended motion for a new trial, which included an affidavit by Dr. Jones. Her request for a new trial was denied. Hathaway now appeals, arguing: (1) Dr. Sze’s testimony at trial was untruthful, and the untruthful testimony should result in the reversal of the judgment entered and a remand for a new trial; and (2) the trial court erred by refusing to grant Hathaway’s motion for a new trial.

DISCUSSION

¶ 7. A motion for a new trial challenges the weight of the evidence. Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). When reviewing the denial of a motion for a new trial, “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.” Id. (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). Furthermore, “the evidence should be weighed in the light most favorable to the verdict.” Id.

¶ 8. Hathaway argues that Dr. Sze’s testimony was knowingly false; therefore, a new trial should have been granted. She alleges that pre-surgical radiographic images taken three months prior to surgery do not show any osteophyte. Because os-teophytes take years to form, Hathaway asserts the pre-surgery radiographic images prove that Dr. Sze was not truthful in his testimony. Hathaway further argues that because her expert, Dr. Jones, had already returned to his home in Dallas, she was unable to rebut Dr. Sze’s testimony at trial.

¶ 9. As additional support for her argument that Dr. Sze testified untruthfully, Hathaway cites to a chapter Dr. Sze coauthored in the book The Comprehensive Treatment of the Aging Spine. The book contains images depicting various spinal problems. Hathaway asserts that the images showing disc degeneration, bulging, and herniation look almost identical to her pre-surgery MRI results, whereas the images showing osteophytes look nothing like her pre-surgery MRI results.

I. Motion for a New Trial

¶ 10. Mississippi Rule of Civil Procedure 59 governs motions for a new trial. Rule 59(b) states that a motion for a new trial must be filed within ten days of the final judgment. Furthermore, Rule 59(c) states “[w]hen a motion for [a] new trial is based upon affidavits[,] they shall be filed with the motion.” Here, Hathaway’s motion for a new trial was based on the allegedly untruthful testimony of Dr. Sze. Accordingly, the motion for a new trial was based on Dr. Jones’s affidavit regarding Dr. Sze’s testimony.

¶ 11. The motion for a new trial was filed on February 10, 2011, which was within ten days of the final judgment. However, the supporting affidavit by Dr. Jones was not filed until April 1, 2011. As noted above, the affidavit had to be filed with the motion for a new trial. Therefore, the affidavit on which the motion for a new trial was based was not timely filed.

¶ 12. Without the supporting affidavit, Hathaway’s arguments in her motion for a new trial were not supported by evidence either presented at trial or in her motion. As such, we cannot find the trial court erred by denying her motion for a new trial. Furthermore, even if Dr. Jones’s affidavit had been filed timely, it does not establish that Dr. Sze’s testimony was false. We will discuss this further in the context of Mississippi Rule of Civil Procedure 60(b)(1).

II. Fraud, Misrepresentation, or Other Misconduct

¶ 13. Relief from a final judgment can also be found pursuant to Mississippi Rule of Civil Procedure 60(b)(1) for “fraud, misrepresentation, or other misconduct of an adverse party[.]” Dr. Jones’s affidavit states that “[n]o qualified radiologist could possibly look at the ... pre-surgery MRI studies and conclude that there was a simple osteophyte or bone spur ... that was unchanged on the post-operative study.” However, Dr. Lewis and Dr. Mathis have presented affidavits from several doctors, including two neurologists and one radiologist, who all agree with Dr. Sze’s conclusions. Therefore, this is not a case of false testimony; it is simply a case of conflicting expert testimony.

¶ 14. It is well-settled law that when conflicting expert testimony is presented, “the winner in a battle of the experts is to be decided by a jury.” Hill v. Mills, 26 So.3d 322, 330 (¶ 28) (Miss.2010). Although Hathaway asserts that her expert, Dr. Jones, was never able to rebut Dr. Sze’s testimony at trial, he did, in fact, testify regarding the issue. Before Dr. Sze ever took the stand, Dr. Jones testified to the following:

Q. When you say fragment, let’s be very precise for the jury. Put the red pointer right kind of in the middle of the fragment that we are talking about there.
A. (Witness complies.)
Q. Is there any possibility in your mind that [it] is a bone spur?
A. No. That is not a bone spur. There are [two] reasons why that is not a bone spur. It is the [b]right signal for a bone. The problem is that there is fluid signal all the way around this. Again, this is the bright signal. Here is the normal spinal fluid. This is bright signal that is not spinal fluid[,] and we can see that there is nowhere for this to attach[;] it is free floating right here. The second point to make is that I had a chance to look at the pre[-]operative study. There was no bone spur on the pre[-]operative study, and it takes months to years for a bone spur to grow. So this thing couldn’t have happened in just a couple of weeks after surgery. You cannot have a bone spur grow that quickly.

The jury heard this testimony and nonetheless believed Dr. Sze’s testimony.

¶ 15. Additionally, the images from The Comprehensive Treatment of the Aging Spine to which Dr. Sze contributed do not establish that he testified falsely. Hathaway’s contention that a comparison between the images in the book and her own MRI scans proves that she did not have an osteophyte is not supported by any medical expert. Accordingly, this issue is without merit.

III. Newly Discovered Evidence

¶ 16. Mississippi Rule of Civil Procedure 60(b)(3) provides relief from a final judgment for “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).” A motion for a new trial based on newly discovered evidence should only be granted where:

(1) the evidence was discovered following the trial; (2) due diligence on the part of the movant to discover the new evidence is shown or may be inferred;
(8)the evidence is not merely cumulative or impeaching; (4) the evidence is material; [and] (5) the evidence is such that a new trial would probably produce a new result.

Moore v. Jacobs, 752 So.2d 1013, 1017 (¶ 18) (Miss.1999) (citing Ag Pro, Inc. v. Sakraida, 512 F.2d 141, 143 (5th Cir.1975), rev’d on other grounds, 425 U.S. 273, 275-76, 96 S.Ct. 1532, 47 L.Ed.2d 784 (1976)).

¶ 17. First, Dr. Jones’s affidavit claiming that Dr. Sze’s testimony was false cannot be considered newly discovered evidence. With due diligence, his affidavit could have timely been filed with Hathaway’s motion for a new trial under Rule 59. Furthermore, Hathaway’s assertion that because Dr. Jones had already returned home before Dr. Sze’s testimony his opinion should be grounds for a new trial is without merit. Dr. Jones testified regarding the issue before Dr. Sze even testified. Dr. Jones stated: “There was no bone spur on the pre-operative study, and it takes months to years for a bone spur to grow. So this thing couldn’t have happened in just a couple of weeks after surgery. You cannot have a bone spur grow that quickly.” Accordingly, the information provided by Dr. Jones in his affidavit was presented at trial and cannot be considered newly discovered evidence.

¶ 18. Finally, although The Comprehensive Treatment of the Aging Spine was not available at the time of trial, it would have only been relevant to impeach Dr. Sze’s testimony. The law is clear that evidence that is merely impeaching cannot be the basis for a new trial based on newly discovered evidence. See Moore, 752 So.2d at 1017 (¶ 18). This issue is without merit.

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

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

      . This was the second trial. The first trial, which began on March 20, 2010, resulted in a deadlocked jury.

      . Rule 59(c) also provides that the "period [in which to file an affidavit] may be extended for up to twenty days either by the court for good cause shown or by the parties’ written stipulation.” However, the affidavit was filed more than twenty-one days after the ten-day window in which to file.


author: ROBERTS, J.,

text:
    Bobby SETTLEMIRES, Appellant v. CAPITAL CITY INSURANCE COMPANY, Appellee.
    No. 2011-WC-01443-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.

      Phil R. Hinton, Corinth, attorney for appellant.
    Loraleigh Christine Phillips, Jackson, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Bobby Settlemires was involved in an on-the-job accident on September 12, 2008. As a result, he suffered a serious injury to his left leg. -Settlemires filed a petition to controvert, and Capital City Insurance Company (Capital City) filed its answer admitting the work-related injury but denying that Settlemires was permanently disabled. After a hearing before an administrative judge (AJ), Settlemires was awarded 87.5 weeks of permanent partial disability benefits for the fifty percent industrial loss of his lower left extremity. Settlemires appealed this decision to the Mississippi Worker’s Compensation Commission, which without any further elaboration, affirmed the AJ’s findings. Settle-mires appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. Settlemires had worked as a logger, either for his family business or himself, for the majority of his career. At the age of sixty-four, Settlemires still drove his logging truck and cruised timber. His work as a logger required him to climb on the loaded logs to remove tree limbs using a chainsaw. He also had to restrain the logs with cables and hooks. All of Settle-mires’s logging trucks and equipment had manual transmissions. Additionally, his job of cruising timber required him to walk across large tracts of land to evaluate timber for sale.

¶ 3. On September 12, 2008, the day of his injury, Settlemires’s logging truck was loaded with timber. Due to the wet ground conditions, another piece of equipment was going to push Settlemires’s truck through a soft, wet area. Unbeknownst to the driver of the other piece of equipment, Settlemires was standing in front of his truck removing some debris. The other driver began pushing the logging truck, which resulted in Settlemires being knocked to the ground, and the front tire of the logging truck rolling over his legs. Settlemires’s left leg received a severe crushing injury and a fibula fracture. That same day, Settlemires visited the emergency room in Corinth, Mississippi, where he briefly saw Dr. Randall Frazier, an orthopaedic surgeon. Settlemires again saw Dr. Frazier several days later. On February 4, 2009, Dr. Frazier performed an “excision, drainage, debridement and irrigation of a left calf hematoma” on Sett-lemires’s leg. Dr. Frazier released Settle-mires to work finding that he had reached maximum medical recovery on May 12, 2009. Subsequently, Settlemires attempted to find employment outside of the logging business. Settlemires briefly returned to logging, but found that he could no longer do the required work. He applied for numerous jobs through the Mississippi Department of Employment Security, the WIN Job Center, and Bruce Brawner, a licensed vocational-rehabilitation counselor, but had no success in obtaining new employment.

¶ 4. Shortly thereafter, Settlemires filed his petition to controvert on May 15, 2009. Capital City filed its answer admitting Settlemires suffered a work-related injury; however, it disputed that Settlemires had suffered from a permanent disability or that any such disability arose from an on-the-job injury. A hearing was held before an AJ on November 23, 2010. Settlemires testified that he still had pain and swelling in his leg due to fluid buildup caused by standing and walking for more than two hours. He claimed that he could no longer haul timber or cruise timber due to the restrictions of his leg injury. Settlemires sold all of his logging equipment in 2010 and began drawing Social Security payments. At the time of the hearing, Settle-mires had been unable to secure employment anywhere else. Also at the hearing, Brawner testified by deposition. Brawner indicated that Settlemires would not be able to perform the work of a log-truck driver based on a review of Dr. Frazier’s deposition and that Settlemires’s age of sixty-seven years could be a factor preventing him from qualifying for jobs or adjusting to new jobs.

¶ 5. Dr. Frazier also testified by deposition. In his deposition, Dr. Frazier stated he had treated Settlemires on moré than one occasion. He first saw Settlemires on September 15, 2008, for treatment relating to Settlemires’s injured leg. Settlemires saw Dr. Frazier in November 2008 and was permitted to return to part-time work. At one point during his treatment of Sett-lemires, Dr. Frazier placed Settlemires in the hospital on February 2, 2009, to receive antibiotics through an IV, and then two days later, on February 4, 2009, Dr. Frazier performed an incision to drain the infected area. The following month, in March 2009, Dr. Frazier placed Settle-mires in a physical-therapy program and released him to work part-time driving the logging truck. Several months later, on May 12, 2009, Dr. Frazier placed Settle-mires at maximum medical improvement and assigned a five percent partial impairment to the lower left extremity. Dr. Frazier also stated that Settlemires would have to modify his activity level due to pain and swelling and limit his standing and walking to two hours per day. Further, Settlemires could no longer drive a standard-transmission truck and could only drive an automatic-transmission truck for short periods of time.

¶ 6. The AJ also heard from Dr. Cooper Terry, who performed an exam on Settle-mires at the request of Capital City. Dr. Terry stated Settlemires “received a permanent impairment from the injury and assigned him a [seven percent] permanent partial impairment to the lower left extremity.” He also placed permanent restrictions on Settlemires to only six hours of standing and walking per day. Climbing on unprotected heights was also not permitted.

¶ 7. On February 8, 2011, the AJ found that Settlemires suffered industrial loss to his lower left extremity of greater than five percent. The AJ noted that Settle-mires’s gait was “consistent with [Settle-mires] suffering pain and having a slight limp from the incident. Certainly no activities were reported that were inconsistent with the restrictions placed on [Settle-mires] by the physicians.” The AJ ultimately found that Settlemires’s industrial loss was fifty percent because he could still perform acts from his previous line of work, just for shorter periods of time, and he could perform jobs similar to his employment prior to being in the timber business; therefore, the AJ determined that Settlemires was entitled to receive 87.5 weeks of permanent partial disability benefits at $886.32 per week. A finding of one hundred percent disability would have entitled Settlemires to 175 weeks of payments. The AJ made no finding regarding whether Settlemires had created a rebut-table presumption of total occupational loss of a scheduled member.

¶ 8. Settlemires appealed this finding to the Commission, which affirmed the AJ’s findings on August 30, 2011. From this decision, Settlemires appeals claiming that “[t]he Mississippi Workers’ Compensation Commission erred by failing to award [him] a [one hundred percent] industrial loss of use to the lower left extremity.”

ANALYSIS

¶ 9. On appeal, “[t]his Court will overturn a Commission decision only for an error of law or an unsupportable finding of fact.” City of Laurel v. Guy, 58 So.3d 1228, 1225 (118) (Miss.Ct.App.2011) (quoting Walker Mfg. Co. v. Butler, 740 So.2d 315, 320 (¶ 19) (Miss.Ct.App.1998)). The findings and order of the Commission are binding so long as they are supported by substantial evidence, and this Court is bound by the findings even though the evidence would convince us otherwise if we were the ultimate fact-finder. Id. (citations omitted).

¶ 10. Settlemires claims that he was entitled to a determination that he suffered a one hundred percent industrial loss to his lower left extremity, entitling him to 175 weeks of permanent partial disability benefits as opposed to the 87.5 weeks he was awarded. He submits that he presented sufficient proof to raise a rebutta-ble presumption of total occupational loss and that the Commission never addressed the presumption, nor did Capital City adequately rebut the presumption. We find that Commission erred in failing to address this presumption; therefore, we reverse and remand this case to the Commission.

¶ 11. The law compensates for two types of loss of use of a scheduled member. The first is the loss of the functional or medical use, and the second is the loss of the industrial or occupational use. Id. at 1226 (¶ 13). Industrial or occupational loss “is the functional or medical disability as it affects the claimant’s ability to perform the duties of employment.” Id. (quoting Meridian Prof'l Baseball Club v. Jensen, 828 So.2d 740, 745 (¶ 11) (Miss.2002)). This Court has explained:

In a scheduled-member case, a worker is always entitled to compensation for the medical or functional loss of his body part, regardless of whether the functional loss impacts his wage-earning capacity. But the law recognizes there may be times when the industrial loss is greater than the medical loss. In these cases, the “claimant’s industrial or occupational disability or loss of wage-earning capacity controls his degree of disability.”

Id. at (¶ 14) (citations omitted). In Jensen, 828 So.2d at 747-48 (¶ 21), the Mississippi Supreme Court discussed the rebut-table presumption that may be created when a claimant presents evidence that he is unable to continue to work in the position he held at the time of injury.

Where a permanent partial disability renders a worker unable to continue in the position held at the time of injury, we hold that such inability creates a rebuttable presumption of total occupation loss of the member, subject to other proof the claimant’s ability to earn the same wages which the claimant was receiving at the time of injury. The presumption arises when the claimant establishes that he has made a reasonable effort but has been unable to find work in his usual employment, or makes other proof of his inability to perform the substantial acts of his usual employment. Rebuttal is shown by all the evidence concerning wage-earning capacity....

Id.

¶ 12. In the present case, Settle-mires presented evidence that his primary occupation at the time of injury was that of a logger. There was testimony of two doctors that Settlemires could not return to logging full-time. Because Settlemires presented proof that he was “unable to continue in the position held at the time of injury,” we find that he was entitled to have the Commission address the presumption of total occupational loss of the scheduled member. We do not address whether or not the presumption was raised and rebutted; rather, we simply find that based on the evidence presented, Settle-mires was at least entitled to have the Commission address the presumption. We leave the determinations of whether the presumption was raised and rebutted to the Commission on remand. Because the Commission did not explicitly address this presumption, we reverse and remand this case to the Commission for a determination of whether the rebuttable presumption was raised and, if so, whether Capital City adequately rebutted that presumption.

¶ 13. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: FAIR, J.,

text:
    Thomas Calvin WANSLEY a/k/a Thomas Wansley a/k/a Calvin T. Wansley a/k/a Calvin Thomas Wansley a/k/a Thomas Calvin Wansley, II, Appellant, v. STATE of Mississippi, Appellee.
    No. 2012-KA-00469-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.

      George T. Holmes, Jackson, Benjamin Allen, Súber June Hardwick, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, C.J., FAIR and JAMES, JJ.
   FAIR, J.,

for the Court:

¶ 1. After an altercation in a Walmart parking lot, Calvin Wansley shot Jeremiah Wilson four times in the back. Wilson survived his injuries. A Hinds County jury rejected Wansley’s self-defense theory, and he was sentenced to twenty years imprisonment for aggravated assault with an additional five-year enhanced penalty for the use of a firearm in a felony. Wans-ley appeals from that judgment alleging various errors, none of which we find entitle him to relief.

FACTS

¶ 2. On February 21, 2011, Wansley and Wilson were both at the Walmart store on Highway 18 in Jackson. Wilson was there with Daniel Frances, his coworker and friend, to pick up a television for Wilson’s girlfriend. Wansley was there with his girlfriend, Kim Brown, and her mother, Linda Brown, to buy groceries. The altercation occurred in the parking lot around 4:50 p.m. Wansley was sitting in his car as Kim and Linda loaded their groceries. Wilson had parked his truck, gone into the store to measure the television, and returned to the parking lot. He got into his truck and was driving toward the store to pick up the television, when he said something to Wansley’s girlfriend. According to Wilson, it was a pleasantry, but other witnesses described it as a come-on. Wansley testified he did not hear what was said to Kim, but he decided to confront Wilson because of an insult directed at him. Wansley stepped out of his car as Wilson drove a few car lengths to the end of the parking lot nearest the store, where he stopped. Wansley advanced on Wilson’s vehicle. Wilson got out and met Wansley near the rear of Wilson’s truck. A brief argument unquestionably ensued, but every witness gave a slightly different account of who said what, with more neutral observers describing a mutual confrontation. -

¶ 3. Wilson testified he was trying to protect his vehicle and that Wansley threatened him by displaying a pistol in his pocket. When Wilson turned around in an attempt to end the dispute, Wansley drew the pistol and shot him in the back. Wilson retreated into the truck as Wansley pursued, firing five shots in total, four of which struck Wilson in the back and neck. Wilson drove onto the sidewalk in front of the store, where he stopped the vehicle, stepped out, and collapsed onto the ground.

¶ 4. According to Wansley, Wilson was the one who put his hand in his pocket as if to imply he had a gun, then he threatened to retrieve one from his truck. Wansley claimed to have seen a gun in the vehicle and shot Wilson as the latter was reaching for it.

¶ 5. Approximately two seconds after Wansley turned away from Wilson and began moving back to his own vehicle, he nearly ran into Reginal Smith, an off-duty police officer. Smith had watched the argument from a short distance and was advancing as Wansley fled. According to Officer Smith, Wansley raised his pistol at Smith, which prompted the officer to fire a single shot. Smith missed, but Wansley dropped his gun and fell to the ground, where Smith held him until other officers arrived.

¶ 6. The incident was captured by a Wal-mart security camera.' The recording was entered into evidence and used extensively in the trial, but the camera was some distance away. The recording is also at a low resolution, only captured four frames per second, and contains no audio.

¶ 7. Wansley was arrested and gave a statement to the investigating officers. A typewritten statement contains a narrative of the shooting, which is subscribed by Wansley, as well as a series of questions and responses where each of Wansley’s answers is initialed. It somewhat contradicted Wansley’s testimony at trial, in that Wansley originally claimed to have seen a gun in Wilson’s pants pocket rather than in the truck. At trial, Wansley testified he had been consistent all along and the written statement contained a scrivener’s error. He claimed he did not read the typed statement closely before signing and initialing it.

¶ 8. Wansley was tried on two charges: aggravated assault and firing into an occupied vehicle. Wansley did not contest that he shot Wilson; his theory of the case was self-defense. After a three-day trial, the jury returned a verdict of guilty of aggravated assault and not guilty of firing into an occupied vehicle.

DISCUSSION

1. Sufficiency of the Evidence

¶ 9. Wansley contends the evidence was insufficient to support his conviction. His argument is premised entirely on the fact that the authorities failed to secure Wilson’s vehicle after the shooting. After Wilson was shot, he drove the vehicle onto the sidewalk in front of the entrance to the store. The passenger, Frances, testified that a police officer told him to move the vehicle. He drove it to Wilson’s house, where it was not searched by the police until about an hour later. No weapon was found. Wansley contends that if the vehicle had been secured, a gun would have been found to support his account of the shooting.

¶ 10. One is guilty of aggravated assault under Mississippi Code Annotated section 97 — 3—7'(2)(a) (Supp.2012) if he “attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.... ” The inquiry as to sufficiency is whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; 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) (quotation omitted). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 11. “[Ujnless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Cox v. State, 849 So.2d 1257, 1266 (¶ 27) (Miss.2003) (quoting Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)). Nothing in the record suggests bad faith, and Wansley does not argue it. His argument is really directed to the weight of the evidence rather than its sufficiency. Therefore this issue, as Wansley has raised it, is without merit.

¶ 12. Moreover, even if Wilson’s alleged gun had been found, Wansley could still have been convicted of aggravated assault. The jury could have believed nearly all of Wansley’s account and still concluded he was an aggressor and the shooting resulted from mutual combat, or even that Wilson was reaching for his own gun in self-defense. It has been “repeatedly held that in a criminal prosecution the jury may accept the testimony of some witnesses and reject that of others, and that they may accept in part and reject in part the evidence on behalf of the state or on behalf of the accused. In other words, the credibility of witnesses is not for the reviewing court.” Ross v. State, 954 So.2d 968, 1081 (¶ 196) (Miss.2007) (citation omitted). The jury, like any finder of fact, is entitled not only to judge credibility and weigh evidence, it is entrusted to interpret evidence that is “capable of more than one reasonable interpretation.” See Trim v. Trim, 38 So.3d 471, 479 (¶ 20) (Miss.2010). The evidence was sufficient to find Wansley an aggressor, and an aggressor is precluded from claiming self-defense. Simmons v. State, 805 So.2d 452, 473 (¶ 30) (Miss.2001).

¶ 13. Wansley’s conviction is supported by sufficient evidence in the record. This issue is without merit.

2. Double Jeopardy

¶ 14. Wansley next contends that receiving separate sentences for aggravated assault and for using a firearm in the commission of a felony (Mississippi Code Annotated section 97-37-37(1) (Supp. 2012)) violates his constitutional protection from double jeopardy.

¶ 15. This Court addressed the same argument in Mayers v. State, 42 So.3d 33, 45 (¶¶ 49-50) (Miss.Ct.App.2010), where we held that section 97-37-37 was a sentencing enhancement that did not violate double jeopardy principles. Wansley questions our holding in Mayers by arguing that the Legislature’s simply calling the additional sentence an enhancement does not make it one. Wansley suggests we should apply the “same elements” test of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). But this argument confuses the nature of the Blockburger test, which is premised on an assumption of statutory construction. If the Legislature actually intended two punishments to be applied to one offense, there is no double jeopardy problem. See Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) (“The assumption underlying the [Blockburger ] rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the ‘same offense,’ they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.”) (emphasis added); see also 21 Am.Jur.2d Criminal Law § 302 (2008) (“Where a legislature expresses its intent to permit cumulative punishments for crimes that constitute the same offense under Blockburger, the Blockburger double jeopardy test must yield; the double jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.”).

¶ 16. Section 97-37-37(1) reads, with our emphasis added:

Except to the extent that a greater minimum sentence is otherwise provided by any other provision of law, any person who uses or displays a firearm during the commission of any felony shall, in addition to the punishment provided for such felony, be sentenced to an additional term of imprisonment in the custody of the Department of Corrections of five (5) years, which sentence shall not be reduced or suspended.

The legislature’s intent that section 97-37-37(l)’s additional term of imprisonment be applied cumulatively to the underlying offense could not be more clear. This issue is without merit.

3. Exclusion of Testimony Regarding Prior Incidents

¶ 17. In his final issue, Wansley contends the trial court erred in limiting his testimony regarding several prior incidents. Three of these incidents were prior confrontations with Wilson, while the fourth was an encounter with a stranger at a gas station the morning of the shooting.

¶ 18. The State made a motion in limine to exclude testimony of all these prior incidents. The trial judge stated he would rule on the motion after Wansley proffered his testimony, but Wansley’s attorney later stated on the record that she had changed her strategy and no longer intended to introduce evidence of prior confrontations with Wilson. The testimony was never proffered, and from the record it is clear the trial court never actually excluded it. There is no merit to Wansley’s claims of error regarding the prior incidents with Wilson.

¶ 19. As to the final incident, Wansley wanted to tell the jury that the morning of the shooting, he was involved in a near collision at a gas station. The other driver threatened him with a gun, which prompted Wansley to get a gun from his brother for self-defense. Wansley wanted to tell the jury that this incident was the reason he was armed at the time of his confrontation with Wilson. Wansley’s attorney detailed the incident in her opening statement, but the trial court did not allow Wansley to testify to it.

¶ 20. The trial court found that the incident could “substantially mislead the jury” because it had occurred approximately seven hours earlier and was unrelated to the shooting of Wilson. Mississippi Rule of Evidence 403 allows a trial court to exclude relevant evidence under certain circumstances. It states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The testimony also appears to have been an attempt to bolster Wansley’s peaceable character through the testimony he had not previously owned a gun. While a defendant is entitled to introduce evidence of his character, he can only do so through testimony of reputation or opinion; evidence of specific instances of conduct is not permitted except on cross-examination. M.R.E. 405. Moreover, Wansley’s attorney disclaimed any use of the testimony as character evidence, apparently unwilling to open that door to the State. See, e.g., Morgan v. State, 741 So.2d 246, 254 (¶ 21) (Miss.1999) (“When the accused raises the issue of his character, the prosecution may then offer evidence of the accused’s bad character.”).

¶ 21. The trial court’s decision to admit or exclude evidence is reviewed for abuse of discretion. Gillett v. State, 56 So.3d 469, 494 (¶61) (Miss.2010). While there may have been some relevance to the testimony regarding the incident at the gas station, we cannot say the trial court abused its discretion in excluding it. We find no merit to this issue.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS AND FIVE YEARS AS AN ENHANCEMENT FOR THE USE OR DISPLAY OF A FIREARM IN THE COMMISSION OF A FELONY, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


text:
    Brian VAN NORMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CA-00918-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.

      Charles E. Miller, McComb, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, C.J., FAIR and JAMES, JJ.
   FAIR, J.,

for the Court:

¶ 1. In 2002, Brian Van Norman pled guilty to aggravated assault and the Wilkinson County Circuit Court sentenced him to ten years’ imprisonment. In 2010, he filed a motion for post-conviction relief (PCR). After an evidentiary hearing, the trial judge denied his motion. Because Van Norman’s PCR motion is time-barred, and the trial court acted within its discretion, we affirm the trial court’s judgment.

FACTS

¶ 2. Jimmy Jackson, who was age fourteen at the time, told law enforcement officers Norman had shot at him six times after a verbal altercation. Jackson was not injured. In a statement he wrote in July 1999, Jackson stated that Van Norman shot at him. In a victim-impact statement he submitted just prior to Van Norman’s sentencing, Jackson also wrote: “Even though Bryan [sic] tried to shoot me, I would never wish he spend a long period of time in jail.”

¶ 3. Van Norman was sentenced to serve ten years after the completion of another sentence he was already serving. More than eight years later on October 1, 2010, he filed his PCR motion “with an affidavit attached as its centerpiece.” The affidavit was dated April 28, 2009, approximately a year and a half earlier. It was signed by Jackson and stated that Van Norman did not assault him and was wrongfully' convicted of assault. During an evidentiary hearing held in February 2011, Jackson testified that Van Norman only fired one shot, and it was into the air and not toward him. On cross-examination, however, Jackson admitted that in 1999 he had given the prior statement to the contrary, i.e., that Van Norman shot at him six times as he walked away.

¶ 4. Under further cross-examination, Jackson admitted that the affidavit was brought to him, and “he just signed it and didn’t read it.” He went on to say: “[W]ell, since it had been so long, I wanted to drop the charges,” and “I think he served his time for it.”

¶ 5. Continuing on, Jackson admitted that at Van Norman’s sentencing hearing, he had said: “Brian’s family has attempted to indicate that I brought this situation on myself. Members of his family have tried to intimidate and frighten me because of this[,] but I just ignore them. Despite all of these things that have happened I sympathize with Brian.” He added that “even though Bryan [sic] tried to shoot me, I would never wish he spend a long period of time in jail.”

¶ 6. In addition to Jackson’s statement, the State introduced handwritten statements made shortly after the shooting by three witnesses. The witnesses stated that they observed the argument and saw Jackson running and Van Norman shooting at him six or seven times. Van Norman pled guilty to aggravated assault based on the facts contained in the statements by Jackson and the three witnesses, along with a written petition for acceptance of his guilty plea. All of this was presented to the trial judge in a plea-colloquy proceeding before the guilty plea was accepted.

¶ 7. After the evidentiary hearing, the trial court entered an order denying Van Norman’s PCR motion. Van Norman appeals from a motion for reconsideration of that denial.

STANDARD OF REVIEW

¶ 8. When reviewing the denial of a PCR motion, an appellate court “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008).

DISCUSSION

¶ 9. Van Norman pled guilty, so he had three years from the entry of the judgment of his conviction to file a PCR motion pursuant to Mississippi Code Annotated section 99-89-5(2) (Supp.2012). Claims made outside of the three-year statute of limitations must raise one of the exceptions found in Mississippi Code Annotated section 99-39-5(2)(a)-(b). “Accordingly, we must look to see whether an exception to these procedural bars applies. The movant bears the burden of showing he has met a statutory exception.” Bell v. State, 95 So.Bd 760, 763 (¶ 10) (Miss.Ct. App.2012) (citation omitted).

¶ 10. The only statutory exception asserted by Van Norman is newly discovered evidence. The time-bar does not apply where a PCR movant shows “he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.” Miss.Code Ann. § 99-39-5(2)(a)(i).

¶ 11. The Mississippi Supreme Court has explained that one seeking a new trial based on newly discovered evidence must make four showings: (1) the new evidence was discovered after the trial; (2) it could not by due diligence have been discovered prior to trial; (3) it is material to the issue and not merely cumulative or impeaching; and (4) the new evidence will probably produce a different result or verdict in the new trial. See Crawford v. State, 867 So.2d 196, 203-04 (¶ 9) (Miss.2003). Relief must be denied if the movant fails to meet any one of these four elements. Id.

¶ 12. Because of the nature of Van Norman’s claims, the trial judge properly set and conducted an evidentiary hearing on the record. “An evidentiary hearing is held so that the trial court can better evaluate the testimony of the recanting witness.” Rushing v. State, 873 So.2d 116, 119 (¶ 4) (Miss.Ct.App.2003) (citing Hardiman v. State, 789 So.2d 814, 817 (¶ 12) (Miss.Ct.App.2001)).

¶ 13. Van Norman did not present any new evidence meeting the requirements for a new trial. At the hearing, more than nine years after Van Norman’s guilty plea, Jackson testified that Van Norman did not assault him and was “mistakenly convicted.” This testimony completely contradicts statements given by Jackson shortly after the crime and at the time of Van Norman’s sentencing. It also contradicts the statements of the three eyewitnesses to the shooting. Jackson further admitted that, when presented with the affidavit, he “just signed it and didn’t read it.”

¶ 14. “Recanting testimony has been shown to be extremely unreliable and should be approached with suspicion.” Peeples v. State, 218 So.2d 436, 439 (Miss.1969); see also Russell v. State, 849 So.2d 95, 107 (¶ 15) (Miss.2003) (“Recanted testimony is exceedingly unreliable, and is regarded with suspicion[.]”). In this case, Jackson recanted his original statements made to law enforcement. The State’s three witnesses still agreed with his original account.

¶ 15. “It is the right and duty of the trial court to deny a new trial where it is not satisfied that such recantation testimony is true and especially is this true where the recantation involves a confession of perjury.” Rushing, 873 So.2d at 119-20 (¶ 6); see also Russell, 849 So.2d at 107 (¶15).

¶ 16. The trial judge, sitting without a jury, is the sole judge of the weight and credibility of the evidence. City of Jackson v. Lipsey, 834 So.2d 687, 691 (¶ 14) (Miss.2003). “In the end[, the appellate court is] reviewing a finding of ultimate fact, one made by a trial court sitting without a jury.” Yarborough v. State, 514 So.2d 1215, 1220 (Miss.1987). This Court does not reverse such findings of fact where they are supported by substantial and credible evidence. Id.

¶ 17. It appears that the trial judge only gave credence to Jackson’s statement that “since it had been so long, [he] wanted to drop the charges.” The judge could easily have concluded Jackson had ceased ignoring the Van Norman family’s attempts to “intimidate and frighten” him.

CONCLUSION

¶ 18. When reviewing a trial court’s decision to deny a PCR motion, an appellate court will not disturb the trial court’s factual findings unless “they are found to be clearly erroneous.” Callins, 975 So.2d at 222 (¶ 8). In other words, “[a] trial judge’s finding will not be reversed unless manifestly wrong.” Hersick v. State, 904 So.2d 116,125 (¶ 31) (Miss.2004).

¶ 19. The trial judge’s findings in this case are neither clearly erroneous nor manifestly wrong. We do not disturb or reverse them.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF WILKINSON COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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