author: FAIR, J.,

text:
    Joel Pablo GONZALEZ a/k/a Joel Pablo Gonzales a/k/a “Martin” a/k/a Joel P. Gonzales, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00113-COA.
    Court of Appeals of Mississippi.
    Sept. 3, 2013.
    Rehearing Denied Jan. 7, 2014.
    Certiorari Denied March 20, 2014.

      Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. “Joel” Gonzalez was convicted by a Madison County jury of possession of five or more kilograms of marijuana. On appeal, he contends the trial court erred in admitting his confession and in allowing the prosecutor to cross-examine Gonzalez regarding his prior deportations. We find no error and affirm.

FACTS

¶ 2. Gonzalez was driving a four-door pickup truck north on Interstate 55 through Madison, Mississippi. Hé and his two passengers were pulled over by Madison Police Officer Paul Bunch, who was joined by other officers a short time later. Bunch had observed Gonzalez change lanes without signaling and cross over the fog line. Gonzalez gave permission to search the vehicle, and the officers discovered a false floor in the bed toolbox that was concealing fifteen bags of marijuana. The bags had been doused with seasonings in an apparent effort to defeat drug dogs. Gonzalez stated that the truck did not belong to him, but the drugs were his. At a subsequent interrogation, Gonzalez stated that the passengers “didn’t have anything to do with it.” Gonzalez wrote out a statement that said, in relevant part, “The 241bs of marijuana are mine.” The bags were later determined to weigh almost exactly twenty-four pounds.

¶ 3. At trial, Gonzalez changed his story. He claimed he had initially taken responsibility for the drugs because he felt guilty for the driving error that got them pulled over and because he was afraid of the real owner of the drugs, Antonio Mata, who was also the vehicle’s owner and a passenger when it was stopped. Gonzalez claimed he did not know about the drugs in the vehicle until Mata told him as it was being searched — that was supposedly how Gonzalez knew there were twenty-four pounds of marijuana in the truck. Gonzalez also stated that his judgment was impaired because he had been using crack cocaine for four days without sleeping and had swallowed what he had left when he was pulled over.

¶ 4. The jury convicted Gonzalez, and he was sentenced to thirty years’ imprisonment. He appeals from that judgment.

DISCUSSION

1. Agee Rule; Suppression of Confession

¶ 5. Gonzalez claims the trial court erred in admitting his statement because, at the suppression hearing, the State failed to call one of the two police officers present when the statement was made. According to Gonzalez, his statement was involuntary because he was under the influence of cocaine when it was made. In response, Officer Bunch testified that Gonzalez did not appear to be intoxicated or confused. Joe Mangino, the other officer, testified to the same effect at the trial, but he was not called at the suppression hearing.

¶ 6. Gonzalez relies on Agee v. State, 185 So.2d 671, 673 (Miss.1966), where it was held that when “the accused offers testimony that violence, threats of violence, or offers of reward induced the confession, then the State must offer all the officers who were present when the accused was questioned and when the confession was signed, or give an adequate reason for the absence of any such witness.” He further cites to broad language in Lettelier v. State, 598 So.2d 757, 759 (Miss.1992), that Agee applies “where a defendant testifies to any fact which, if true, would tend to show that the confession was not voluntary.” (Quotation omitted).

¶ 7. This argument is without merit because Agee has been narrowed in more recent decisions of the Mississippi Supreme Court. “Only those officers claimed to have induced a confession by some means of coercion are required to testify at the hearing.” Wilson v. State, 936 So.2d 357, 362 (¶ 10) (Miss.2006) (citing Abram v. State, 606 So.2d 1015, 1030 (Miss.1992) (overruled on other grounds by Foster v. State, 961 So.2d 670, 672 (Miss.2007)). Wilson is instructive. There, the defendant claimed his confession was a product of duress caused by his emotional state and several self-inflicted stab wounds. Id. The supreme court rejected Wilson’s Agee argument because he “failed to name specific officers who coerced him or to cite specific examples of coercion.” Id. Gonzalez likewise fails to cite any acts of coercion by Officer Mangino.

¶ 8. Gonzalez also argues, in a cursory fashion, that the trial court’s finding that his statement was voluntary is against the overwhelming weight of the evidence. He offers no supporting authority, and this issue is therefore procedurally barred. M.R.A.P. 28(a)(6); Duncan v. State, 939 So.2d 772, 779 n. 3 (Miss.2006) (“[I]t is the duty of an appellant to provide authority in support of an assignment of error.”). Notwithstanding the procedural bar, we find no merit to this argument. We can reverse the denial of a motion to suppress “only if the trial court’s ruling is manifest error or contrary to the overwhelming weight of the evidence.” O’Hal-loran v. State, 731 So.2d 565, 570 (¶ 17) (Miss.1999). Having reviewed the record, we conclude that the trial court was entitled to accept Officer Bunch’s testimony that Gonzalez was alert and responsive over Gonzalez’s conclusory and uncorroborated claims of intoxication.

¶ 9. Gonzalez has failed to show any error in the admission of his confession.

2. Gonzalez’s Deportations and Prior Conviction

¶ 10. Gonzalez testified in his own defense, and the State moved in limine to cross-examine him regarding his prior convictions and deportations. The trial court largely prohibited this line of questioning, but it did permit the State to elicit testimony that Gonzalez had been convicted of a felony in Indiana (without further elaboration) and that he had been deported to his native Mexico twice before. The trial court excluded the details of the Indiana conviction, which was for visiting or maintaining a common nuisance (essentially a drug house). See Ind.Code § 35-48^4-13 (2013). The court also precluded the prosecution from questioning Gonzalez about a federal conviction for kidnapping that resulted in his first deportation, because of the age of that conviction.

¶ 11. On appeal, Gonzalez complains that the evidence of his deportations was more prejudicial than probative under Mississippi Rule of Evidence 403 because it called the jury’s attention to his status as an illegal alien. He also contends the pri- or felony conviction should not have survived the balancing test.

¶ 12. Gonzalez filed a motion in limine before the trial to preclude any mention of his immigration status. However, his attorney withdrew the motion, stating that he had changed his strategy. Gonzalez’s theory of the case was that he initially took the rap for the drugs because he believed he would be imprisoned for only a short time before being deported. In his opening statement, Gonzalez’s attorney stated:

Mr. Gonzales didn’t know before this. Mr. Gonzales is high on cocaine. He’s sleep deprived. He feels responsible for the stop. He feels that his friends are about to get in a lot of trouble because of a mistake, the driving mistake, and he believes that if he confesses to the marijuana, to putting it in the truck, that he’ll be just deported. Now this is not the case, but that’s what he believes in the state of mind that he’s in at the time. So he makes a confession, a false confession. He thinks he’s trying to help his friends and he thinks that very little will come of it for him. He thinks he’ll be sent back to Monterrey, Mexico.

Gonzalez also used his fear of immigration enforcement to explain why he had initially given the authorities an alias and corresponding (apparently forged) identification cards from Mexico. Both Officers Bunch and Mangino testified without objection that Gonzalez had expressed his belief he would not be imprisoned long before being deported.

¶ 13. Certainly his immigration status and prior history of deportation could have been a double-edged sword in the trial, but having made the tactical decision to open that door himself, Gonzalez cannot now complain of prejudice.

¶ 14. As to the prior conviction, Mississippi Rule of Evidence 609(a)(1)(B) provides that a defendant who chooses to testify may be impeached with evidence of his prior convictions of crimes punishable by death or imprisonment in excess of one year, provided certain conditions are met, including that the court determines that the probative value of the conviction as evidence outweighs its prejudicial effect. The trial court must hold a hearing pursuant to Peterson v. State, 518 So.2d 632, 636 (Miss.1987), and consider:

(1) The impeachment value of the prior crime.
(2) The point in time of the conviction and the witness’ subsequent history.
(3) The similarity between the past crime and the charged crime.
(4) The importance of the defendant’s testimony.
(5) The centrality of the credibility issue.

¶ 15. Here, the trial court held a Peterson hearing and found the prior conviction admissible. Gonzalez’s testimony and credibility was unquestionably central to the case, where the only seriously contested issue was the ownership of the drugs. And to mitigate the prejudice, the trial court precluded the State from mentioning the nature of the conviction — i.e., that it was drug-related. The standard of review for admission or exclusion of evidence is abuse of discretion. Herring v. Poirrier, 797 So.2d 797, 804 (¶ 18) (Miss.2000). Given this deferential standard, we cannot say the trial court erred in admitting Gonzalez’s prior conviction for impeachment. This argument is without merit.

¶ 16. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF FIVE OR MORE KILOGRAMS OF MARIJUANA AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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

      . Gonzalez was indicted as "Joel Gonzalez,” a name the Mississippi authorities acquired from a fingerprint database. Gonzalez admitted to using several aliases not included in his indictment, including Martin Sandibar (the name he gave the arresting officers in this case) and Jose Gatten. He testified that his given name is Jose Pablo Gonzalez and suggested "Joel” was a transcription error.

      . The authorities later determined that the vehicle was actually owned by someone they believed was Mata’s wife.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Albert EDMOND a/k/a Albert Edmonds, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00022-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2013.
    Rehearing Denied Dec. 10, 2018.
    Certiorari Denied March 20, 2014.

      Albert Edmond, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, C.J., FAIR and JAMES, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Albert Edmond was convicted of forcible rape in Hinds County in 1974 and was sentenced to life imprisonment. The Mississippi Supreme Court affirmed his conviction in Edmond v. State, 312 So.2d 702, 706 (Miss.1975). Although Edmond had been released on parole, his parole was revoked in 1982. Edmond filed his first petition for post-conviction relief (PCR) in June 2000, which the trial court denied. This Court affirmed the trial court’s decision in Edmond v. State, 845 So.2d 701, 702 (¶1) (Miss.Ct.App.2003), finding Edmond’s petition for PCR was time-barred.

¶ 2. Edmond filed another petition for PCR on May 31, 2011. The trial court dismissed the petition, finding it time-barred and without merit. Edmond now appeals, asserting that the time-bar did not apply and that his indictment was defective.

STANDARD OF REVIEW

¶ 3. When reviewing a trial court’s denial or dismissal of a petition for PCR, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review. Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss.Ct.App.2012).

DISCUSSION

¶ 4. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), if the petitioner filed a direct appeal, he must move for relief “within three (3) years after the time in which [his] direct appeal is ruled upon....” Miss.Code Ann. § 99-39-5(2) (Supp.2012). Edmond was convicted in 1974, which was well before the UPCCRA was enacted on April 17, 1984. Odom v. State, 483 So.2d 343, 344 (Miss. 1986). “Individuals convicted prior to April 17, 1984, ha[d] three (3) years from April 17, 1984, to file their petition for post[-]conviction relief.” Id. Therefore, Edmond had until April 17,1987, to file his PCR petition. Edmond did not file his petition until well after the statute of limitations had run. Thus, Edmond’s petition is time-barred, and we find no exception to this bar applies. See Miss.Code Ann. § 99-39-5(2)(a)-(b).

¶ 5. Edmond’s petition is also barred as a successive writ, and he has asserted no exceptions to this bar. See Miss.Code Ann. § 99-39-23(6) (Supp.2012); Edmond, 845 So.2d at 702 (¶ 1).

¶ 6. Although Edmond’s petition is procedurally barred, if the errors asserted affect his fundamental constitutional rights, those errors are excepted from the procedural bars. Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss.2010). Edmond argues his indictment was defective because it failed to cite the appropriate statute. The indictment simply states Edmond “did wilfully, unlawfully, feloniously and forcibly rape and ravish [the victim], a female above the age of twelve years, without the consent and against the will of [the victim].” Edmund was clearly notified of the crime charged; thus, we find no exception to the procedural bar. See Weaver v. State, 497 So.2d 1089, 1092 (Miss.1986) (lack of statute number in indictment not fatal if defendant can fairly ascertain which statute he was being charged under).

¶ 7. Edmond also argues that the indictment was not endorsed a true bill, was forged, and did not have a sworn affidavit by the grand-jury foreman attached. However, we find no exception to the procedural bar. These issues are without merit.

¶ 8. We note an additional reason the trial court’s dismissal of the PCR petition was correct. Since Edmond’s conviction was affirmed on appeal, he was required to seek permission from the Mississippi Supreme Court to file his PCR petition in the trial court. See Miss.Code Ann. § 99-39-7 (Supp.2012). A supreme court order dated March 9, 2011, states Edmond’s “application for leave to seek post-conviction relief ... is hereby dismissed without prejudice to be filed in the trial court.” In the March 9 order, the supreme court stated the reason for dismissal was that Edmond had not directly appealed his conviction; however, as previously stated, Edmond did directly appeal his conviction. With the utmost respect, it appears this order was entered erroneously. The supreme court denied Edmond’s motion for reconsideration on April 27, 2011. Although Edmond has filed numerous motions over the years, the PCR petition this Court is reviewing on appeal was filed May 31, 2011. It seems Edmond misunderstood the supreme court’s order of March 9, stating in his brief “he had gotten direction” from the supreme court to proceed.

¶ 9. For reasons unknown, Edmond later filed another application for leave to file his PCR petition in the trial court. However, the latest supreme court order, dated May 16, 2012, dismissed Edmond’s application for leave to proceed in the trial court and stated: “Edmond’s conviction was affirmed by [the supreme court] in 1975[,] and ... the present application meets no exception to the statutory time[-]bar.” In other words, the supreme court’s latest order denied Edmond permission to file the very PCR petition now on appeal. As previously stated, proper leave to proceed from the supreme court is a jurisdictional prerequisite for the filing of a PCR petition in the trial court for petitioners such as Edmond.

¶10. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . The Court of Appeals declines to identify victims of sexual crimes.


author: ISHEE, J.,

text:
    Anthony Darrell THOMAS a/k/a Anthony Thomas a/k/a Anthony Darell Thomas, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00382-COA.
    Court of Appeals of Mississippi.
    Oct. 29, 2013.
    Rehearing Denied March 11, 2014.

      Michael W. Crosby, Gulfport, attorneys for appellant.
    Office of the Attorney General by Elliott George Flaggs, attorneys for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Anthony Darrell Thomas was convicted in the Harrison County Circuit Court of depraved-heart murder and sentenced to life in prison for the death of Adrian Terrell Robinson. Thomas now appeals, arguing: (1) the jury’s verdict was against the weight and sufficiency of the evidence; (2) a mistrial should have been granted due to the admission of an unfairly prejudicial statement that his father made against him; (3) his counsel was ineffective; (4) the prosecutor made misleading statements during trial; (5) cumulative errors warrant reversal; and (6) the trial court incorrectly revoked his in forma pau-peris (IFP) status for purposes of appeal.

¶ 2. Finding no reversible error, we affirm.

STATEMENT OF FACTS

¶ 3. On April 24, 2003, Robinson, Cynthia Mullins, Bryan Malley, and Billy Weary (Thomas’s father) were at Weary’s home in Gulfport, Mississippi, where they frequently gathered to smoke crack cocaine. The house was described as a “shotgun house,” with three rooms in a row. The first two rooms were separated by a sheet or curtain hanging from the ceiling. Robinson and Mullins were in the first room, and Malley and Weary were in the middle room using drugs. Later that evening, Thomas came to the home and spoke to Robinson about an incident involving Thomas’s mother or sister. The details of the discussion are unclear from the record. Thomas left but returned later with three friends: Lionel Maurice and two men identified only as Arthur and Jason. Thomas began arguing with Robinson and hit Robinson in the head with a blunt object.

¶ 4. On April 26, 2003, Weary called the police to report a body in his yard. Officer William Riddle with the Gulfport Police Department l'esponded. He searched the yard, but was unable to find a body. Weary again contacted the police. This time he took Officer Riddle directly to Robinson, who was on the ground near the road. Robinson was unconscious but alive. Robinson was taken to the hospital where he remained for approximately two months before passing away. The coroner found Robinson died of “brain damage due to a blow to the left side of the head.”

¶ 5. Thomas was indicted for depraved-heart murder, and his trial was held on March 4, 2008. However, a mistrial was declared when one of the State’s witnesses testified that Thomas had sold him drugs in the past.

¶ 6. Thomas’s second trial was held September 9 through September 10, 2008. Thomas was found guilty of depraved-heart murder and sentenced to life in the custody of the Mississippi Department of Corrections. He filed a motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial, which was denied. He now appeals.

DISCUSSION

I. Sufficiency and Weight of the Evidence

¶ 7. Thomas argues the jury’s verdict was not supported by the sufficiency and weight of the evidence because the State’s two eyewitnesses — Mullins and Malley— did not present credible or sufficient evidence that Thomas committed depraved-heart murder.

A. Sufficiency of the Evidence

¶ 8. A motion for a directed verdict or JNOV challenges the sufficiency of the evidence. Bush v. State, 895 So.2d 886, 848 (¶ 16) (Miss.2005). For evidence to be sufficient to sustain a conviction, it must show “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....” Id. (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). We will reverse if the facts and inferences, viewed in the light most favorable to the State, “point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty....” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). The evidence is viewed in the light most favorable to the State, and “[a]ll credible evidence consistent with the defendant’s guilt must be accepted as true...” Boyd v. State, 977 So.2d 829, 336 (1128) (Miss.2008).

¶ 9. In order to establish that Thomas had committed depraved-heart murder, the State was required to prove beyond a reasonable doubt that Thomas killed Robinson “without the authority of law by any means or in any manner ... in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual....” Miss.Code Ann. § 97 — 3—19(1)(b) (Rev. 2006).

¶ 10. At trial, Mullins testified that on the day of the murder, she, Weary, Robinson, and another man, whose name Mullins did not know, were in Weary’s home. Although she went to Weary’s house “[j]ust about every day” to smoke crack cocaine, she had not used any drugs that day. Mullins and Robinson sat and ate in the first room alone. At some point, Thomas came to the house, walked into the first room, and spoke to Robinson. Mullins stated the men were “talking,” not arguing. Thomas left.

¶ 11. About thirty minutes later, Thomas returned with three men. Thomas entered the house with two of the men, and the third stayed outside. According to Mullins, Thomas “asked [Robinson] some questions, and that was about it.” The questions were “something about they said what did they say to sister [sic][?]” Thomas then hit Robinson in the head or upper body with “a leg off a table or something like [that].” Mullins did not know where Thomas got the object. Mullins testified she was sitting next to Robinson on the bed the whole time, and she did not see Robinson attempt to fight back until after Thomas had struck him. When Robinson stood up to fight back, Maurice, one of the men with Thomas, held Robinson down. At this point, Mullins “ran out the door.”

¶ 12. Malley testified that on the day of the murder, he and Weary were in the middle room “getting high,” while Robinson and Mullins had gone into the first room to be alone. Robinson later returned to the middle room, where he sat on the couch to cut up crack. At this point, Thomas knocked on the door. Thomas seemed mad and talked to Robinson about “something that had ... happened about [Robinson] going around by his momma’s house.” Thomas then took Robinson’s bike and, as he left, said something to the effect of: “[TJhis is for the money you owe me.”

¶ 13. Thomas later returned and started kicking the front door. Thomas and two other men entered the house and approached Robinson, who was in the first room cutting up drugs with a knife on an album cover. Thomas yelled at him to put the knife down, but Robinson refused. Thomas then slapped the album cover off his lap. Malley witnessed this from the middle room, behind the curtain. He was about three or four feet away, and could partially see someone pointing a gun at Robinson. After being told two or three times to drop the knife, Robinson complied. He then tried to leave the room, but was pushed back against the wall by one of the men.

¶ 14. While Robinson was being held against the wall, Thomas broke the leg off an end table and yelled: “[B]* * * ⅜, I told you, I told you I was coming back.” According to Malley, Robinson was “steady saying, man, ... why you doing this, man what’s up[?]” Thomas then hit Robinson multiple times in the head with the table leg. Robinson fell, and the men kicked him as he lay on the ground. Robinson was on the floor “shaking real bad.” Malley never saw Robinson become aggressive. At this point, Malley escorted Thomas outside, where Thomas continued “raging [and] cussing.” Thomas then said, “I’m going to go over there and finish his punk a* * off.” Malley became scared and left.

¶ 15. Viewing the evidence in the light most favorable to the State, we find sufficient evidence was presented to prove the elements of depraved-heart murder. Mullins’s and Malley’s testimonies showed that Thomas hit Robinson in the head at least once while he was enraged at Robinson, and, at no point before he was hit did Robinson show aggression toward Thomas. Mullins and Malley were able to identify Thomas in a photographic lineup and at trial. Neither witness could testify as to what occurred between April 24 and April 26, 2008. However, Dr. Paul McGarry, the pathologist, confirmed that Robinson’s death was caused by “a blow to the left side of his head” from a blunt object. Any rational juror could have found that the State had proven all the elements of depraved-heart murder beyond a reasonable doubt. This issue is without merit.

B. Weight of the Evidence

¶ 16. A jury’s verdict will not be reversed unless “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) (citation omitted). A motion for a new trial, which challenges the weight of the evidence, should be granted “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Weatherspoon v. State, 56 So.3d 559, 564 (¶20) (Miss.2011) (citation omitted).

¶ 17. Thomas argues the verdict was against the weight of the evidence because Mullins’s and Malley’s testimonies were contradictory, and they were inconsistent with their testimonies at the first trial. He also asserts their testimonies were inherently unreliable because they were admitted drug users and Malley was a “jailhouse snitch.” We acknowledge there were discrepancies in the testimony. However, the discrepancies all relate to extraneous facts — such as what the parties were eating on the day in question (chicken or spaghetti), where the parties were sitting (on a bed or in a chair), where Weary was in the house (the first or middle room), and where a witness went after the incident (home or to Dairy Queen). Also, there was a discrepancy between Malley’s and Dr. McGarry’s testimonies, which was resolved when Dr. McGarry was questioned on the matter. Malley testified that after Thomas struck Robinson, Robinson fell to the ground, and Thomas and his two friends repeatedly kicked and stomped Robinson. Dr. McGarry testified that he saw no injuries on Robinson’s body that indicated Robinson was kicked and stomped; however, he admitted that there could have been bruises that had healed between the altercation and the autopsy.

¶ 18. Also, the jury was made aware of Mullins’s and Malley’s drug use and was told that Malley was a jailhouse informant who sought to remain in county jail in exchange for his testimony. It was the jury’s duty to weigh the testimonies accordingly. See Knight v. State, 72 So.3d 1056, 1061 (¶ 15) (Miss.2011). Thomas argues that other issues should have been brought to the jury’s attention. Specifically, Thomas notes that on the day of the murder, Mullins had neglected to take her prescription medication that prevented hallucinations. Thomas also highlights the fact that Malley did not testify until the second trial that he wanted to remain in county jail because he feared for his safety. However, Thomas was given the opportunity to cross-examine the witnesses on these issues. The failure to do so does not warrant reversal based on the weight of the evidence.

¶ 19. While the issues raised by Thomas may have affected Mullins’s and Mal-ley’s credibility, it is well established that issues of credibility are resolved by the jury. See id. Further, Thomas chose not to testify or present any witnesses, as was his right; but “the jury was nevertheless allowed to give ‘full effect’ to the [S]tate’s evidence” since there was no evidence presented by the defense. Miller v. State, 983 So.2d 1051, 1054 (¶ 10) (Miss.2008) (citing White v. State, 722 So.2d 1242, 1247 (¶ 27) (Miss.1998)). Viewing the evidence in the light most favorable to the verdict, as is required by our standard of review, we cannot find the verdict was against the overwhelming weight of the evidence. See Bush, 895 So.2d at 844 (¶ 18). While there were discrepancies at trial, the witnesses consistently testified that Thomas struck Robinson with a blunt object, and the medical evidence confirmed that this was the cause of Robinson’s death. This issue is without merit.

II. Admission of Testimony

¶ 20. Malley testified that prior to trial, he ran into Thomas and asked him how he was doing. According to Malley, Thomas replied that “everything was going all right, except for his daddy, you know, had done turned [Sjtate on him.” Thomas’s attorney moved for a mistrial, arguing the statement implied that Thomas’s father, Weary, was a “witness for the State,” and the fact that Thomas’s “own father” was against him was so “highly prejudicial” that he “[could not] possibly overcome it.” Thomas’s attorney also cited Malley’s lack of credibility in his motion for a mistrial. The judge denied the motion, finding that the comment was a permissible statement against interest.

¶ 21. Thomas now argues he was unfairly prejudiced because the statement was inadmissible hearsay, violated the Confrontation Clause, was more prejudicial than probative under Mississippi Rule of Evidence 403, and was improper character evidence under Mississippi Rule of Evidence 608(a). The denial of a motion for a mistrial and the admission of evidence are reviewed for abuse of discretion. Gunn v. State, 56 So.3d 568, 571 (¶ 14) (Miss.2011); Tate v. State, 912 So.2d 919, 924 (¶9) (Miss.2005). “The judge is provided considerable discretion to determine whether the remark is so prejudicial that a mistrial should be declared.” Carpenter v. State, 910 So.2d 528, 534 (¶ 23) (Miss.2005) (quoting Roundtree v. State, 568 So.2d 1173, 1177 (Miss.1990)).

A. Hearsay

¶ 22. Hearsay, which is generally not admissible at trial, is defined as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c), 802. The trial court found that Malley’s testimony was hearsay, but an exception arose because the statement was against Thomas’s interest as provided for in Mississippi Rule of Evidence 804(b)(3). In order for this exception to apply, the declarant first must be unavailable as a witness. M.R.E. 804(b)(3). Thomas was unavailable since he exercised his right not to testify. See M.R.E. 804(a)(1). Second, the statement must be against the defendant’s interest, meaning it must have “so far tended to subject him to ... criminal liability, ... that a reasonable man in his position would not have made the statement unless he believed it to be true.” M.R.E. 804(b)(3). Thomas’s statement that his “daddy ... had done turned [Sjtate on him” does not meet this requirement. It is not a statement subjecting himself to criminal liability. Rather, it is a vague statement regarding some action his father had taken.

¶ 23. While we cannot agree with the trial court’s reason for finding the statement admissible, we agree with its conclusion. Unlike the trial court, we do not find Malley’s testimony was hearsay. Malley was questioned regarding Thomas’s response as to how he was doing after being arrested for Robinson’s murder. Malley responded that Thomas said he was alright, “except for his daddy ... had done turned [Sjtate on him.” This statement was not made to prove the truth of the matter asserted — that is, it was not intended to prove what Thomas’s father had done. Thus, it does not meet the definition of hearsay. We affirm the admission of the statement, albeit for a different reason than the trial court. See Green v. Cleary Water, Sewer & Fire Dist., 17 So.3d 559, 572 (¶ 42) (Miss.2009) (citation omitted) (“[Ijt is well established in our jurisprudence that the right result reached for the wrong reason will not be disturbed on appeal.”). Likewise, we find the trial court did not abuse its discretion in denying the motion for a mistrial.

B. Confrontation Clause

¶ 24. Thomas argues that the admission of Malley’s statement was a Confrontation Clause violation. The Confrontation Clause of the Sixth Amendment guarantees that “[ijn all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” See Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

¶ 25. Thomas’s argument regarding Weary’s unavailability to testify is misplaced. The person who made the statement was Thomas, not Weary. Thus, Weary’s availability is irrelevant.

¶ 26. Regardless, the Confrontation Clause only applies to statements that are “testimonial” in nature, such as “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Neal v. State, 15 So.3d 388, 403 (¶ 34) (Miss.2009) (quoting Crawford, 541 U.S. at 51, 124 S.Ct. 1354). The statement here was not testimonial. It was not made under oath or for the purpose of later establishing a fact in a court proceeding. Rather, it was a statement made in a casual conversation. This issue is without merit.

C. Mississippi Rule of Evidence 403

¶27. Mississippi Rule of Evidence 403 states that “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice_” Thomas argues the implication that one’s own father is against him is so unfairly prejudicial that a mistrial was warranted. Malley testified that Thomas said his father “had done turned [Sjtate on him.” Thomas has not shown how this statement was prejudicial. The statement, read alone, does not say what Thomas argues it does — that is, that Thomas’s father had turned him in to the police for murder. The testimony was vague and did not implicate Thomas’s guilt. We cannot find the trial court abused its discretion in admitting the statement or denying the motion for a mistrial. This issue is without merit.

D. Mississippi Rule of Evidence 608(a)

¶ 28. Thomas’s argument regarding improper character evidence is procedurally barred because it is being raised for the first time on appeal. See Caston v. State, 823 So.2d 473, 503 (¶ 102) (Miss.2002). Rule 608(a) states:

The credibility of a witness may be attacked ... by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

Regardless, Malley’s testimony was not character evidence under Rule 608(a). This issue is without merit.

III. Ineffective Assistance of Counsel

¶ 29. Thomas argues he was denied a fair trial because his counsel was ineffective. Specifically, Thomas asserts that his attorney was ineffective by failing to make an opening statement, failing to propose any jury instructions, failing to call a witness at trial, and failing to withdraw as counsel due to a conflict of interest.

¶ 30. In order to prove his counsel was ineffective, Thomas must show: (1) “that [his] counsel’s representation fell below an objective standard of reasonableness”; and (2) “there is reasonable probability that, but for [his] counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Before reaching this analysis, however, we must decide if this issue is proper for direct appeal. Mississippi Rule of Appellate Procedure 22(b) states in relevant part: “Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record.”

¶ 31. One of the four arguments raised by Thomas is apparent from the record — that is, that his appointed counsel should have withdrawn due to a conflict of interest. During trial, Thomas’s attorney recognized one of the witnesses, Malley, but could not recall where the two had met. Fearing that he had represented Malley in the past, he informed the judge there may be a conflict of interest. A hearing was held, and Malley recalled that Thomas’s attorney had agreed to represent him on a grand-larceny charge, but withdrew from representation because Malley paid him with a bad check. Malley then retained another attorney, who represented him in the matter. Malley never met with Thomas’s attorney, and they did not engage in any privileged conversations. After hearing this, Thomas was asked if he wanted to proceed with his attorney’s representation. Thomas agreed to proceed and expressly waived any conflict.

¶ 32. Mississippi Rule of Professional Conduct 1.9, regarding conflicts of interest due to the attorney’s representation of a former client, is inapplicable because Thomas’s attorney did not obtain any privileged information from Malley. Also, it does not apply because Malley’s grand-larceny charge is entirely unrelated to Thomas’s murder charge. Regardless, Thomas was aware of the brief former representation and agreed to waive any conflict. This issue is without merit.

¶ 33. Thomas’s remaining ineffective-assistance-of-counsel arguments are improper for direct appeal. He argues his attorney was ineffective because he chose to reserve his opening statement, but never made an opening statement. Thomas also argues his attorney was ineffective for proposing no jury instructions, and specifically for failing to propose a theory-of-the-case instruction and cautionary instructions on Mullins’s and Malley’s drug use and Malley’s credibility as a jailhouse informant. Finally, Thomas argues a federal inmate had crucial information about Thomas’s co-indictee, Maurice, and should have been called to testify. These choices may have been permissible trial strategy on the part of Thomas’s counsel, but the record lacks any evidence one way or the other. Based on the record, we cannot determine why Thomas’s counsel made these decisions. Since we are not allowed to speculate on counsel’s motives, these matters are more appropriate for post-conviction-relief proceedings where additional evidence can be introduced. See Mitchell v. State, 90 So.3d 584, 596-97 (¶ 35) (Miss.2012).

IV. Prosecutorial Misconduct

¶ 34. Thomas argues that the prosecution misled the jury by basing its questioning at the second trial on what was learned at the first trial — that is, if the prosecutor did not like a witness’s response to a question in the first trial, the question was reworded during the second trial to elicit or avoid certain testimony. No objection was made to this at trial; thus, this argument is waived. See Caston, 823 So.2d at 503 (¶ 102). Further, even if the questions were misleading, Thomas had an opportunity to clarify the testimony on cross-examination.

¶ 35. Thomas next argues the prosecutor made misleading statements in closing that indicated Malley’s and Mullins’s testimonies were consistent, when they were not. The jury heard the testimonies and was aware of any inconsistencies, and the jury was instructed that arguments of counsel were not evidence. This issue is without merit.

V. Cumulative Errors

¶ 36. As we have found no error in the issues raised, we likewise find no cumulative errors warranting reversal.

VI. IFP Status

¶ 37. For purposes of the trial, Thomas was granted IFP status and was represented by a court-appointed attorney. However, he retained his own counsel on appeal. A hearing was held on Thomas’s indigent status for appeal. In denying the IFP request, the trial court pointed out that the counsel retained by Thomas was “a well-known[,] noted criminal defense attorney” who was considered “one of the best attorneys on the coast ... in the field of criminal law.”

¶ 38. “[T]he determination of indigent status ... [is] left to the sound discretion of the trial judge.” Clay v. State, 757 So.2d 236, 239 (¶ 12) (Miss.2000) (citing Gerrard v. State, 619 So.2d 212, 218 (Miss.1993)). “Such judgment shall not be overturned unless there is a showing of manifest error or abuse of discretion.” Id.

¶ 39. We cannot find the trial judge abused his discretion in denying Thomas IFP status. Although Thomas was indigent at the time of trial, he had obtained funds to retain counsel on appeal. There is no need to burden the taxpayers with the cost of this appeal when Thomas has the means to hire his own counsel. This issue is without merit.

¶ 40. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF DEPRAVED-HEART MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Maurice was indicted with Thomas, but the charges were dismissed.

      . The State argues that the statement is admissible as an admission by a party-opponent under Mississippi Rule of Evidence 801(d)(2). As we have found that the statement does not meet the definition of hearsay, there is no need to address this argument.


author: IRVING, P.J,

text:
    Marion STRICKLAND, Appellant v. SOUTH PANOLA SCHOOL DISTRICT, Keith Shaffer, in his Capacity as Superintendent of the South Panola School District, Sandra Darby, Jerry Cooley, Kim Nix, Lygunnah Bean, W.E. “buddy” Gray, in their Official Capacities as Members of the Board of trustees of the South Panola School District, Appellees.
    No. 2012-CA-02034-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.
    Rehearing Denied March 11, 2014.

      Randolph Walker, attorney for appellant.
    Colmon S. Mitchell, Batesville, Robert Ryan Revere, attorneys for appellees.
    Before IRVING, P.J., ROBERTS and JAMES, JJ.
   IRVING, P.J,

for the Court:

¶ 1. This appeal arises from the Panola County Chancery Court’s denial of Marion Strickland’s request for (1) a preliminary injunction ordering the South Panola School District (school district) and its board of trustees (board) to grant Strickland a hearing regarding his termination, and (2) a temporary restraining order preventing the school district and the board from moving forward with termination proceedings. Strickland focuses on the preliminary injunction and argues that the chancery court erred in refusing to grant his request.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Strickland, a teacher employed with the school district, was arrested for enticing a child pursuant to Mississippi Code Annotated section 97-5-33(7) (Supp.2013). On October 26, 2012, while Strickland was in jail, Keith Shaffer, the superintendent of the school district, hand-delivered a letter to Strickland which informed him that the board had decided to terminate his employment as a result of his arrest. The letter further stated that Strickland had five days from the date of the delivery of the letter to request a hearing. Strickland did not request a hearing until November 4, 2012. Shaffer notified Strickland’s attorney on November 5, 2012, that the board would not grant Strickland’s request for a hearing because the request was not made within five days of Strickland receiving notice.

¶ 4. Strickland filed a complaint for in-junctive relief, requesting that the chancery court issue (1) a preliminary injunction ordering the school district to grant him a hearing and (2) a temporary restraining order prohibiting the school district from moving forward with any termination proceedings. The chancery court denied Strickland’s requests.

¶ 5. Additional facts, as necessary, will be related in our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. Mississippi Code Annotated section 37-9-59 (Rev.2013) states that

[i]n the event that an employee does not request a hearing within five (5) calendar days of the date of the notice of discharge , it shall constitute a waiver of all rights by said employee and such discharge ... shall be effective on the date set out in the notice to the employee.

Strickland argues that he was “practically unable” to request a hearing within five days because he was incarcerated. He insists that as soon as he was able to meet with his attorney, he had a written request for a hearing delivered to the board. It is clear here that Strickland failed to comply with section 37-9-59, as he requested a hearing outside of the five-day period mandated by the statute. Therefore, he waived his right to request a hearing, and his termination became effective on November 1, 2012.

¶ 7. Despite his failure to comply with section 37-9-59, Strickland argues that the doctrine of equitable tolling applies, suspending the five days mandated by section 37-9-59. He contends that extraordinary circumstances forced him to make his request outside of the time period. The doctrine of equitable tolling provides that the running of the statute of limitations is suspended when “a plaintiffs delay in filing [a complaint] is caused by the defendant’s misrepresentation.” Smith v. Franklin Custodian Funds, Inc., 726 So.2d 144, 149 (¶ 19) (Miss.1998) (citing Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 810 (5th Cir.1991)). The doctrine of equitable tolling does not apply here because the five-day requirement in section 37-9-59 has never been interpreted as a statute of limitations, and because Strickland was requesting a hearing with the school district, not filing a complaint in court. Additionally, Stickland cites nó specific, extraordinary circumstances that kept him from contacting his attorney or the board while incarcerated and cites no authority to support his argument that the timeline set forth in section 37-9-59 may be extended pursuant to the doctrine of equitable tolling.

¶ 8. Even if the theory of equitable tolling applied here, Strickland would have to prove that his delay in requesting a hearing was caused by misrepresentations made by the school district. See Smith, 726 So.2d at 149 (¶ 19). Strickland admitted that the delay was due to his incarceration. He does not allege that his delay was caused by the school district’s misrepresentations, nor is there anything in the record that indicates that Strickland’s delay in requesting a hearing resulted from misrepresentations made by the school district. Thus, the chancery court did not err in its judgment, as Strickland did not timely request a hearing as mandated by section 37-9-59.

¶ 9. THE JUDGMENT OF THE PA-NOLA COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.


text:
    Julia “Beth” LOTT, Appellant v. Robert E. ALEXANDER and Annie M. Alexander, Appellees.
    No. 2013-CA-00104-COA.
    Court of Appeals of Mississippi.
    March 11, 2014.

      David Mark Slocum Jr., Senatobia, Joanna Marie Frederick, attorneys for appellant.
    Leigh Ann Darby, Senatobia, attorney for appellees.
    Before IRVING, P.J., BARNES and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. This appeal arises from a chancellor’s order granting Robert and Annie Alexander visitation rights with their great-grandchildren under Mississippi Code Annotated section 93-16-3 (Rev.2013). Julia “Beth” Lott, the children’s mother and their daughter’s daughter, raises two issues on appeal: (1) the Alexanders do not have standing under section 93-16-3, and, in the alternative, (2) the chancellor erred in finding Lott unreasonably denied visitation. We find the first issue to be disposi-tive. We hold, consistent with the Legislature’s definition of “grandparent” and the plain language of section 93-16-3 that great-grandparents are not grandparents within the meaning of section 93-16-3. Therefore, because the Alexanders do not have standing to seek visitation under that statute, we do not address the second issue.

FACTS

¶ 2. The Alexanders petitioned for visitation with their great-grandchildren on August 20, 2012. Lott filed a motion to dismiss the Alexanders’ petition, asserting that, as great-grandparents, the Alexanders improperly sought visitation under section 93-16-3. During the visitation hearing on December 14, 2012, both parties argued the motion before the chancellor. The chancellor denied the motion, stating:

Subsection two, which is what we are travelling under today[,] of § 93-16-3 entails a different fact situation [than subsection one]. There’s different criteria that are established and if, in fact, these great-grandparents can establish that same criteria, [subsection two] doesn’t make any distinction and say[s] that this only applies to grandparents and not great-grandparents .... [The] statute anticipates that normally a parent would do that or a grandparent, but not a great[-]grandparent[ ]. But [the great-grandparents] have kind of stood in the place of her mom in her life. So I’m going to proceed with this ... if they do establish the things that I was told in the pretrial conference, then I’m going to step out on a limb and I’m going to interpret this to apply in this particular ease, to the great-grandparents.

¶ 3. At the close of the visitation hearing, the chancellor ruled in favor of the Alexanders, finding that the following criteria had been met in accordance with section 93 — 16—3(2):(1) the Alexanders established a viable relationship with their great-grandchildren, (2) Lott unreasonably denied the Alexanders visitation rights, and (3) the visitation rights would be in the best interest of the children. On January 7, 2013, the chancellor entered an order granting the Alexanders visitation rights. Lott now appeals, claiming that the chancellor erred by interpreting section 93-16-3 to include great-grandparents.

STANDARD OF REVIEW

¶ 4. “We will not disturb the factual findings of a chancellor when supported by substantial evidence unless we can say with reasonable certainty that the chancellor abused her discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” T.T.W. v. C.C., 839 So.2d 501, 503 (¶ 6) (Miss.2003) (citations omitted).

¶ 5. Whether great-grandparents have a right to petition to seek visitation with the children depends entirely on whether they are “grandparents” within the meaning of section 93-16-3. This presents an issue of statutory interpretation, which we review de novo. T.T.W., 839 So.2d at 503 (116).

DISCUSSION

1. Constitutional Background

¶ 6. Grandparents have no common-law right to visitation with their grandchildren. Id. at 504 (¶ 7). Such a right, if created, is purely statutory and may only be considered if the statutory criteria are met. Woodell v. Parker, 860 So.2d 781, 785-86 (¶ 15) (Miss.2003). The Mississippi Grandparents’ Visitation Act expressly permits state courts to grant visitation to grandparents. Mississippi Code Annotated section 93—16—3(1)—(2) provides:

(1) Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child’s parents may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with the child.
(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:
(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and
(b) That visitation rights of the grandparent with the child would be in the best interests of the child.

(Emphasis added).

¶ 7. In Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the United States Supreme Court struck down a non-parent visitation statute in the State of Washington because it unduly impinged on parents’ fundamental right to make decisions concerning the care, custody, and control of their children. Id. at 68-73, 120 S.Ct. 2054. The Court reasoned that this right was “perhaps the oldest of the fundamental liberty interests recognized by this Court” and stressed that “ £[i]t is cardinal with us that the custody, care[,] and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ ” Id. at 65-66, 120 S.Ct. 2054 (citations omitted).

¶ 8. In Stacy v. Ross, 798 So.2d 1275, 1279 (¶¶ 15-16) (Miss.2011), the Mississippi Supreme Court considered the constitutionality of section 93-16-3 in light of Troxel. Upholding the statute, the court stated that, “[u]nlike the ‘breathtakingly broad’ ‘any person’ language in Washington’s statute, ... [the] Mississippi Grandparents’ Visitation Act expressly permits state courts to grant visitation to grandparents.” Stacy, 798 So.2d at 1279 (¶ 17). More recently, in Smith v. Wilson, 90 So.3d 51, 58 (¶ 22) (Miss.2012), the court addressed the issue once again, stating that “[u]nlike the statute in Troxel, Mississippi’s grandparent-visitation statute is narrow, allowing grandparents (not any person) to seek visitation only under certain circumstances.” The court went on to say that “[t]he factors set forth in [Martin v. Coop, 693 So.2d 912 (Miss.1997) ] specifically prohibit a Chancellor from ordering visitation which would interfere with a parent’s right to rear his or her children.” Smith, 90 So.3d at 59 (¶ 23) (citation omitted).

2. Mississippi’s Grandparent Visitation Act

¶ 9. Lott argues that the Alexanders improperly petitioned for visitation because section 93-16-3(2) does not apply to great-grandparents. Without citing authority or developing a rationale, the Alexanders simply assert the belief that they are in fact grandparents within the meaning of the statute; and, therefore, the Alexanders claim the chancellor correctly included great-grandparents within the meaning of section 93-16-3(2).

¶ 10. The Mississippi Supreme Court has not yet been given the opportunity to decide whether the term great-grandparents are included in the purview of Mississippi Code section 93-16-3. Accordingly, this is an issue of first impression.

¶ 11. Neither subsection one or two of 93-16-3 purports to authorize visitation awards to great-grandparents. “It is a familiar rule of statutory construction[ ] that if reasonably possible, statutes shall be construed to conform to constitutional requirements, and that broad language will be limited to conform to constitutional requirements.” Miss. State Tax Comm’n v. Brown, 188 Miss. 483, 496, 193 So. 794, 796 (1940). If a statute is plain and unambiguous, it is unnecessary to engage in statutory interpretation. DuPree v. Carroll, 967 So.2d 27, 30 (¶ 17) (Miss.2007).

¶ 12. Our Mississippi Supreme Court has stated:

The courts have no right to add anything to or take anything from a statute, where the language is plain and unambiguous. To do so would be intrenching upon the power of the Legislature. Neither have the courts authority to write into the statute something which the Legislature did not itself write therein, nor can they ingraft upon it any exception not done by the lawmaking department of the government.

Wallace v. Town of Raleigh, 815 So.2d 1208, 1208 (¶ 17) (Miss.2002) (quoting Hammer v. Yazoo Delta Lumber Co., 100 Miss. 349, 417, 56 So. 466, 490 (1911)). Section 93-16-8 does not expressly define “grandparent” within the statute, but it does refer to a grandparent as the “parent of a child’s parent.” Miss. Code Ann. § 93-16-3(1). And, there is no reference to “great-grandparents” in the statute. Webster’s II New College Dictionary 485 (1995) defines “grandparent” as a “parent of one’s mother or father.” Our supreme court has stated that it “presumes that words used in statutes were intended to convey their usual meaning absent some indication to the contrary.” Buelow v. Kemp Co., 641 So.2d 1226, 1228-29 (Miss.1994). Giving the term “grandparent” its plain and ordinary meaning, the intent of the Legislature is clear and unambiguous.

¶ 13. Courts in other jurisdictions have held that grandparent-visitation statutes must be strictly construed due to their impingement on parents’ fundamental rights. See, e.g., Thompson v. Thompson, 984 So.2d 415, 417 (Ala.Civ.App.2007); In re Visitation of C.R.P., 909 N.E.2d 1026, 1028 (Ind.Ct.App.2009). Some states specifically allow great-grandparents or other family members to petition for visitation under the same statute. See, e.g., Towne v. Cole, 133 Ill.App.3d 380, 88 Ill.Dec. 404, 478 N.E.2d 895, 897 (1985) (stating that the state legislature had specifically amended the state statute providing for visitation rights with children, to include not only grandparents, but great-grandparents as well). See also Ariz.Rev.Stat. Ann. § 25-409(C) (persons other than legal parent); Ark.Code Ann. § 9-13-103(a)(1) (grandparents and great-grandparents); Minn.Stat. Ann. § 257C.08(4) (other person); Nev.Rev.Stat. § 125C.050(1) (other children, grandparents, great-grandparents); N.M. Stat. Ann. § 40-9-1.1 (grandparents and great-grandparents); N.D. Cent.Code § 14-09-05.1 (grandparents and great-grandparents); Ohio Rev.Code Ann. § 3109.11 (other relatives); Wis. Stat. Ann. § 767.43 (great-grandparents and other persons).

¶ 14. Our statute, however, does not include the term “great-grandparent.” And, overwhelmingly, courts that have considered this issue reached the same conclusion where the statute in question did not expressly give great-grandparents a right to seek visitation. Chavers v. Hammac, 568 So.2d 1252, 1253 (Ala.Civ.App.1990); In re M.D.E., 297 P.3d 1058, 1061 (Colo.App.2013); Hammons v. Jenkins-Griffith, 764 N.E.2d 303, 305-06 (Ind.Ct.App.2002); Skov v. Wicker, 272 Kan. 240, 32 P.3d 1122, 1127-28 (2001); Cole v. Thomas, 735 S.W.2d 333, 334-35 (Ky.Ct.App.1987); People ex rel. Antonini v. Tracey L., 230 A.D.2d 869, 646 N.Y.S.2d 703, 704 (N.Y.App.Div.1996). In Cole, the trial court denied the petition of a great-grandmother to visit her grandson brought under section 405.021, a Kentucky statute that permits the court to grant reasonable visitation rights to the grandparents if doing so is in the child’s best interest. Cole, 735 S.W.2d at 334-35. On appeal, the court affirmed the denial of the great-grandmother’s petition, finding that the statute only provided visitation between a grandparent and grandchild. Id. at 335. The court reasoned:

To allow great-grandparents to be included within [this statute] would open the door to aunts and uncles, cousins and great-great-grandparents. While we would not be adverse to allowing those persons “standing in loco parentis” or “any person having an interest in the welfare of the child” to file petitions such as this, we do not believe this was the intention of the legislature .... Therefore, while we agree that the more familial bonds a child has is generally better for the child, this court is not in a position to add words and meaning to a statute that is clear on its face.

Id. (citation omitted).

¶ 15. Other states that have looked at the plain meaning of the word “grandparent” declined to look beyond the language of the statute to create additional statutory rights for great-grandparents. See Hammons, 764 N.E.2d at 305-06 (finding that plain meaning of “grandparents” does not include great-grandparents); Skov, 32 P.3d at 1127-28 (same).

¶ 16. With advancements in modern medicine, we recognize that people are living longer and healthier lives. As a result, it is more likely that there are great-grandparents caring for great-grandchildren in the same way that grandparents care for their grandchildren. However, this Court lacks authority to add words or meaning to a statute that is plain on its face. For the foregoing reasons, we find that the Alexanders did not have the right to petition to seek grandparent-visitation rights, and the chancellor’s award of visitation to the Alexanders cannot be upheld under section 93-16-3.

¶ 17. THE JUDGMENT OF THE CHANCERY COURT OF TATE COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

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


author: LEE, C.J., JAMES, J.,

text:
    Eddie James CARTHAN, Appellant v. Zula PATTERSON, Mayor of the Town of Tchula, Mississippi and the Town of Tchula, Mississippi, Appellees.
    No. 2012-CA-01347-COA.
    Court of Appeals of Mississippi.
    March 11, 2014.

      Carlos Diallo Palmer, attorney for appellant.
    Daniel Judson Griffith, Michael Stephen Carr, Cleveland, attorneys for appellees.
   LEE, C.J.,

for the Court:

¶ 1. The mayor and Board of Aldermen (Board) of the Town of Tchula, Mississippi, determined that a warehouse owned by Eddie James Carthan was a public nuisance and voted to demolish the warehouse. Carthan filed suit in the Holmes County Circuit Court against the mayor and the Town, claiming the destruction of his property was an unconstitutional taking. Finding it had no jurisdiction, the trial court dismissed Carthan’s suit.

FACTS

¶ 2. On April 21, 2006, Carthan received notice from the mayor that a hearing was to be held concerning the condition of his warehouse, which was located at 907 Main Street. During a meeting on June, 8, 2006, the Board found Carthan’s warehouse to be a public nuisance and voted to move forward with the demolition. On June 16, 2006, Carthan delivered a letter to the mayor and the Board in which Car-than stated his intent to appeal. The letter was stamped as received that same day. At a meeting on July 13, 2006, Car-than attempted to discuss the demolition of his warehouse, but the Board’s attorney stated the issue was not on the agenda. Five days later, municipal employees demolished Carthan’s warehouse.

¶ 3. On May '6, 2008, Carthan filed suit against the Town alleging an unconstitutional taking of his property without just compensation and a deprivation of property without due process of law. The Town filed a motion for summary judgment. The trial court granted the Town’s motion, finding it did not have jurisdiction over the matter since Carthan failed to perfect his appeal from the Board’s decision of June 8, 2006. The trial court determined that Carthan’s letter dated June 16, 2006, was not sufficient to perfect an appeal since Carthan failed to file a bill of exceptions, as required by Mississippi Code Annotated section 11-51-75 (Rev.2012). Carthan now appeals the trial court’s ruling.

DISCUSSION

¶ 4. Carthan contends he perfected his appeal of the Board’s decision on June 8, 2006, by delivering his notice of appeal and “letter of exceptions” within ten days, as required by section 11-51-75.

¶ 5. Section 11-51-75 states the requirements for appeals to circuit court from municipal authorities as follows:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment^] and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities. The clerk thereof shall transmit the bill of exceptions to the circuit court at once, and the court shall either in term time or in vacation hear and determine the same on the case as presented by the bill of exceptions as an appellate court, and shall affirm or reverse the judgment.

¶ 6. “The act of a municipality which leaves a party aggrieved is appeal-able to the circuit court where all of the issues of the controversy are finally disposed of by order of the municipal authorities.” McPhail v. City of Lumberton, 832 So.2d 489, 491 (¶ 7) (Miss.2002) (citation omitted). The ten-day requirement “is both mandatory and jurisdictional.” Id. at 492 (¶ 8) (citation omitted). Thus, “when an appeal ... is not perfected within the statutory time constraint of ten days, no jurisdiction is conferred upon the appellate court, i.e., the circuit court.” Id.

¶ 7. Carthan did file a letter within ten days of the Board’s decision. The letter was addressed to the mayor and the Board and stated as follows:

In accordance [with] the ordinances and codes of the [Town] of Tchula and the State of Mississippi and the 14th Amendment of the U.S. Constitution, I hereby appeal the recent decision of the [m]ayor and [the Board] at their June 8, 2006[ ] hearing and meeting concerning my property (warehouse) located ... at ... 907 Main Street, Tchula, MS.
Given the many discrepancies, errors, inaccuracies[,] and unlawful procedures in handling this matter, I strongly request that another meeting be held in which professionals] and experts may address the above matter or an appropriate court ... may intervene.

¶ 8. The trial court stated that:

One may be strained to find the letter ... may serve as [a] notice of appeal, but the letter is not sufficient to serve as a bill of exceptions, which is a significant part of the appeal process: [Carthan] has failed to list any discrepancy, error, inaccuracy, or unlawful procedure that was made or used by the [T]own of Tchula.

¶ 9. Although Carthan contends his letter serves as a proper bill of exceptions, we disagree. The purpose of the bill of exceptions is to serve as the record on appeal; thus, the trial court “may only consider the case as made by the bill of exceptions.” Wilkinson Cnty. Bd. of Supervisors v. Quality Farms Inc., 767 So.2d 1007, 1011 (¶ 11) (Miss.2000). “If the bill of exceptions is not complete and is fatally defective in that pertinent and important facts and documents are omitted therefrom, then the court does not have a record upon which it can intelligently act.” Stewart v. City of Pascagoula, 206 So.2d 325, 328 (Miss.1968). “A proper bill of exceptions on appeal is necessary to confer jurisdiction on the appellate court.” Id. See also McKee v. City of Starkville, 97 So.3d 97, 100 (¶ 9) (Miss.Ct.App.2012); Pruitt v. Zoning Bd. of City of Laurel, 5 So.3d 464, 469 (¶ 16) (Miss.Ct.App.2008).

¶ 10. We reiterate that this case does not involve the direct appeal of the Board’s decision, but rather an independent action against the Town alleging an unconstitutional taking. In McPhail, McPhail failed to properly appeal the decision of a local board pursuant to section 11-51-75. McPhail, 832 So.2d at 492 (¶ 9). Like Carthan, McPhail filed a separate lawsuit against the municipality well after the local board’s decision. Id. at 491 (¶ 7). The Mississippi Supreme Court found that section 11-51-75 operated as a jurisdictional bar since McPhail failed to properly appeal the board’s decision to the circuit court; thus, the separate claim was not properly before the circuit court. McPhail, 832 So.2d at 492 (¶ 11).

¶ 11. Carthan failed to comply with section 11-51-75 by not embodying the facts and proceedings below in a proper bill of exceptions. In failing to do so, Carthan failed to perfect his appeal. Thus, section 11-51-75 operated as a jurisdictional bar to Carthan’s separate claim. We find the trial court correctly determined it was without jurisdiction.

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

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

JAMES, J.,

dissenting:

¶ 13. I find that summary judgment was entered in error; therefore, I respectfully dissent. The standard of review of a trial court’s grant or denial of a motion for summary judgment is de novo. Parmenter v. J & B Enters. Inc., 99 So.3d 207, 213 (¶ 7) (Miss.Ct.App.2012). Under Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In determining whether summary judgment was properly granted by a trial court, we view “the facts in the light most favorable to the nonmovant.” Parmenter, 99 So.3d at 213 (¶ 7). “The burden of demonstrating that there are no genuine issues of material fact is upon the movant, and the non-moving party must be given the benefit of every reasonable doubt.” Id.

¶ 14. The mayor and Board determined that a warehouse owned by Dr. Carthan, a former mayor, was a public nuisance and ordered the demolition and removal of the warehouse. On May 6, 2008, Carthan filed a lawsuit in the Circuit Court of Holmes County against the mayor and town alleging an unconstitutional taking of property without just compensation in violation of Article 3, Section 17 of the Mississippi Constitution, and a depravation of property without due process of law.

¶ 15. The majority states that Carthan failed to perfect his appeal; therefore, the circuit court lacked jurisdiction. Carthan filed his notice of appeal on June 16, 2006, pursuant to Mississippi Code Annotated section 11-51-75 (Rev.2012). Unlike the appellant in McPhail v. City of Lumberton, 832 So.2d 489, 491 (¶ 7) (Miss.2002), Carthan’s notice of appeal was filed within ten days. Therefore, McPhail does not operate as a jurisdictional bar based upon the facts here. The circuit court found that Carthan’s letter, although sufficient to serve as a notice of appeal, did not constitute a proper bill of exceptions. Section 11-51-75 has been interpreted “to require the filing of an appeal within ten days, but [allows] the bill of exceptions to be filed or amended within a reasonable time thereafter.” Tilghman v. City of Louisville, 874 So.2d 1025, 1026 (¶ 7) (Miss.Ct.App.2004). Furthermore, “a circuit court, sitting as an appellate court, enjoys the same authority as the Mississippi Supreme Court or Court of Appeals to remand a case to an inferior body for record supplementation or a factual determination while at the same time retaining jurisdiction over both the parties [and] the subject matter.” Howell v. Bd. of Sup’rs of Jefferson Davis Cnty., 70 So.3d 1148, 1154 (¶ 18) (Miss.Ct.App.2011). Therefore, although Carthan’s letter merely articulated his statement of exceptions, he should have been permitted to amend his statement to conform to a proper bill of exceptions. The majority cites Wilkinson County Board of Supervisors v. Quality Farms, Inc., 767 So.2d 1007 (Miss.2000), for the proposition that the circuit court may only consider the case as made in the bill of exceptions. There, however, the supreme court, after finding that the bill of exceptions was fatally defective, reversed and remanded to “allow the parties to file a proper amended bill of exceptions.” Id. at 1012 (¶ 15); see also Fields v. City of Clarksdale, 27 So.3d 464, 468 (¶ 10) (Miss.Ct.App.2010).

¶ 16. This Court has held that filing a notice of appeal is sufficient to vest jurisdiction. Bowen v. DeSoto Cnty. Bd. of Sup’rs, 852 So.2d 21, 24 (¶ 9) (Miss.2003). The Board did not respond to Carthan’s notice of appeal, nor did it transmit the notice to the circuit court. Carthan then appeared before the Board on July 13, 2006, but the Board refused to consider the matter because it was not on the agenda. The Board then proceeded to demolish Carthan’s warehouse, disregarding his appeal.

¶ 17. Furthermore, although Carthan’s letter was insufficient to constitute a proper bill of exceptions, the appeal became moot upon the demolition of his warehouse. Thus, Carthan’s only avenue of redress was filing suit based on a denial of due process. To now hold that no jurisdiction exists would penalize Carthan for the Board’s failure to respond to his appeal and reward the Board for proceeding to demolish Carthan’s property and foreclosing the pending appeal. In sum, Carthan would be left with no avenue of redress. Although, the majority properly notes that the procedural requirements of section 11-51-75 are both mandatory and jurisdictional, “the statutory indications are that the legislative branch does not wish that matters of form will terminate a court’s ability to consider the rights of parties.” Bowen, 852 So.2d at 24 (¶ 7) (citing Bowling v. Madison Cnty. Bd. of Sup’rs, 724 So.2d 431, 442 (¶ 50) (Miss.Ct.App.1998)). I find that there is substantial indication in the record that Carthan’s rights may have been violated by the Board when it failed to act on his appeal and proceeded to demolish his warehouse. Thus, I find genuine issues of material fact present indicating that summary judgment was entered in error. Accordingly, I would reverse and remand for further proceedings below.

IRVING, P.J., JOINS THIS OPINION.

      . The Mississippi Rules of Appellate Procedure were adopted effective January 1, 1995; and, the Uniform Rules of Circuit and County Court were adopted effective May 1, 1995, which greatly affected appeals to circuit court.


author: BARNES, J.,

text:
    Brenda JACKSON, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2012-CC-01590-COA.
    Court of Appeals of Mississippi.
    March 11, 2014.

      Brenda Jackson, Jackson, appellant, pro se.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.
    LEE, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. Brenda Jackson was employed as a substitute teacher for the Jackson Public Schools Board of Trustees (JPS) from February 7, 2011, to May 27, 2011. Jackson moved to Texas on June 1, 2011, to pursue other employment opportunities.

¶ 2. On June 2, 2011, Jackson filed a claim for unemployment benefits with the Mississippi Department of Employment Security (MDES). When it was discovered that Jackson had voluntarily relocated to Texas, MDES disqualified her from receiving any benefits. Additionally, MDES found that Jackson had received an overpayment of $705 for the period of June 11, 2011, to June 25, 2011.

¶ 3. Jackson appealed the denial of benefits. After a hearing on September 8, 2011, the administrative law judge (ALJ) concluded that since Jackson voluntarily left her employment with JPS, she was not entitled to unemployment benefits. He also found Jackson liable for the $705 in unemployment benefits she had received, including interest of one percent per month on the unpaid balance. Aggrieved, Jackson appealed the ALJ’s decision to the MDES Board of Review (Board), which affirmed the findings.

¶ 4. Jackson subsequently appealed the Board’s findings to the Hinds County Circuit Court. On March 12, 2012, the circuit court affirmed the Board’s decision. Jackson now appeals to this Court, and finding no error, we affirm the denial of unemployment benefits.

STANDARD OF REVIEW

¶ 5. Our standard of review of the decision of an administrative agency is limited to a determination of whether the Board’s order: “(1) was unsupported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party.” Moran Haul ing Inc. v. Dep’t of Fin. & Admin., 105 So.3d 1126, 1128 (¶8) (Miss.Ct.App.2012) (quoting Tillmon v. Miss. State Dep’t of Health, 749 So.2d 1017, 1021 (¶ 15) (Miss.1999)).

[Furthermore, w]here there is the required substantial evidence, this Court has no authority to reverse the circuit court’s affirmance of the decision of the Board of Review. The [B]oard’s findings of fact are conclusive if supported by substantial evidence and without fraud. Therefore, the appellate court must not reweigh the facts of the case or insert its judgment for that of the agency-

Patterson v. Miss. Dep’t of Emp’t Sec., 95 So.3d 719, 721 (1110) (Miss.Ct.App.2012) (quoting Broome v. Miss. Emp’t Sec. Comm’n, 921 So.2d 334, 337 (¶ 12) (Miss.2006)).

DISCUSSION

¶ 6. Jackson argues that she did not voluntarily quit work, but rather that she was told by JPS there was no work available during the last two weeks of May. She also claims that she failed to receive notification of the required summer training for substitute teachers, which was mandatory in order to continue employment with JPS the next academic year. Jackson said that the notice of training was mailed to her former Mississippi address, even though JPS knew she no longer resided there.

¶ 7. Mississippi Code Annotated section 71-5-513(A)(l)(a) (Rev.2011) states that a person shall be disqualified from receiving benefits for the time he or she “left work voluntarily without good cause, if so found by the department[.]” The statute also says that “marital, filial and domestic circumstances and obligations shall not be deemed good cause within the meaning of this subsection.” Id. “The question of whether an employee voluntarily leaves his employment or is terminated is a question of fact to be determined by the MDES.” Waldrwp v. Miss. Emp’t Sec. Comm’n, 951 So.2d 597, 599 (¶ 9) (Miss.Ct.App.2007) (citing Huckabee v. Miss. Emp’t Sec. Comm’n, 735 So.2d 390, 394 (¶ 14) (Miss.1999)).

¶ 8. Jackson claims that the testimony provided by JPS at the hearing before the ALJ was false, and she has submitted additional documentation that she asserts will support her claim. However, we must deny Jackson’s request to review and rely upon the documentation provided with her appeal, as it was not part of the record below. “It is well settled that a reviewing court cannot consider matters which do not appear in the record and must limit itself to the facts that do appear in the record.” City of Jackson v. Perry, 764 So.2d 373, 383 (¶49) (Miss.2000). We cannot base our decision on information not provided to the ALJ or the Board for consideration.

¶ 9. We determine that the ALJ’s findings are supported by the evidence. The ALJ concluded that Jackson “had a reasonable assurance of returning to work for the [JPS] System in the next successive academic term and chose to leave her employment to relocate to Texas.” Thus, Jackson was disqualified from benefits and “obligated to repay the assessed overpayment plus any interest that may accrue on the unpaid balance.” During the hearing, Jackson acknowledged: “[JPS] didn’t tell me I have a job. They didn’t tell me I was ... fired. They didn’t tell me I couldn’t work.” Jackson explained that she needed to work during the summer and that she moved to Texas to find a job. Jackson admitted she permanently relocated to Texas on June 1, 2011, because she thought she had a viable job prospect when she moved to Texas.

So I came [to Texas] to work with the temporary agency as I always have in the past .... I came here to work at that company. Then when I got here [ (Texas) ], I realized that ... they had downsized and a lot of, you know, jobs w[ere not] comin[g] through them anymore, and then I started applyin[g] for jobs other places. So yes[,] I came here with a plan.

Jackson notes in her brief:

Because JPS[’s] substitute office pays once at the end of the month, I would still have to work [thirty] days before my first payroll check. That means I would become five or so months behind on my mortgage in addition to deficits already in place. Again, I relocated to keep from losing my home to foreclosure and because I would not have any income for four or five months.

Jackson also testified that she transferred colleges (from Jackson State University to the University of Southern Mississippi), so she could continue her education through online courses from Texas. Therefore, we find there is sufficient evidence that Jackson left Mississippi and relocated on her own volition.

¶ 10. Jackson also claims on appeal that, had she received notice of the mandatory workshop and known that she had a job in the fall, she would have “done thing[s] differently!,] even after [she] relocated.” A JPS employee, JoAnn Shelton, testified at the hearing that Jackson was “sent a letter to come to the [mandatory] workshop in June”; and that Jackson called her, stating she had moved out of state and .could not attend. Shelton noted: “When someone calls to say they’re relocating, that’s a verbal resignation.” Shelton also stated that substitute teachers are informed when they are hired regarding the mandatory workshop and the necessity to attend in order to be eligible as a substitute teacher for the next school year. On appeal, Jackson disputes Shelton’s testimony; however, Jackson was allowed to question Shelton regarding her testimony at the hearing and failed to provide any evidence that Shelton had committed perjury. Furthermore, Jackson clearly stated at the hearing that she could not stay in Mississippi due to financial reasons and was unable to attend the mandatory training.

I had relocated out here to Dallas when the letter, whatever letter was sent to me in June. And whenever ... you have your mail re-routed, it takes up to [two] weeks, sometimes [three] weeks to get your mail[,] so I never received the letter. [If it] came, it didn’t come in time enough for me to ... do the workshop because at that time[,] I had relocated [on] May 31st. June 1st, I was out here already!,] so I could not attend a workshop that I had already relocated from.... [T]he other thing is [JPS] said that, they verbally said it, they said, you know, to attend a workshop and[,] if I had stayed in Jackson and gone to school at Jackson State, you know, I would have attended the workshop. I would have gone through the routine to do that, but again I couldn’t wait until September to get paid[.] ... [S]o that’s the reason why I relocated ... to the Dallas area [;] you know about the workshop, that’s the reason why it didn’t work for me.

(Emphasis added). Thus, it is evident Jackson was aware of the required workshop and its necessity to retain her job as a substitute teacher for the upcoming fall session. Yet she chose to leave Mississippi for financial reasons and not attend the workshop. Consequently, we find Jackson’s assertion that JPS failed to notify her of the workshop, causing her to lose gainful employment with JPS the following school year, lacks merit.

¶ 11. Accordingly, we find that it was not arbitrary or capricious for the ALJ and Board to determine that Jackson voluntarily left her employment with JPS, and the decision to deny Jackson benefits was supported by substantial evidence.

¶ 12. We also uphold the agency’s finding that Jackson is obligated to repay the assessed overpayment with interest. Jackson voluntarily relocated to Texas on June 1, 2011, but she was paid benefits for the two-week period following her departure. Mississippi Code Annotated section 71-5-19(4)(b) (Rev.2011) states that any person found to have received an overpayment of benefits “shall be liable to repay to the department for the Unemployment Compensation Fund a sum equal to the overpayment amount so received by him[.]”

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED.

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

      . Jackson’s lást day of work was May 13, 2011, but it is undisputed that she contacted JPS for two weeks after that date to determine if work was available.

      . While Jackson claims she has never received a letter regarding the workshop, the record supports a finding that she had notice of the training.


author: ROBERTS, J.,

text:
    Dennis Jerome BEAL a/k/a Dennis Beal, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00182-COA.
    Court of Appeals of Mississippi.
    March 11, 2014.

      Earnestine Alexander, Jackson, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Following a jury trial in the Madison County Circuit Court, Dennis Beal was convicted of selling cocaine to a confidential informant, and he was sentenced to sixty years in the custody of the Mississippi Department of Corrections (MDOC), as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2007). He was also ordered to pay a $2,000,000 fine. Beal raises three issues on appeal, primarily regarding the admission or exclusion of evidence and testimony at trial and the denial of a jury instruction. We find Beal’s arguments to be without merit; therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In late March 2009, a man met members of the Madison County Sheriffs Department to act as a confidential informant (Cl) on a drug-buying operation. The Cl was searched and given thirty dollars with which to buy cocaine. Captain Tommy Jones and Narcotics Agent Trey Curtis wired the Cl with video and audio equipment in order to document the transaction. Captain Jones and Agent Curtis drove the Cl to the area of Laura Drive in Madison County. Shortly thereafter, the Cl encountered Beal and got into Beal’s vehicle. The Cl gave Beal thirty dollars in exchange for two rocks of crack cocaine. Following the drug exchange, Captain Jones and Agent Curtis picked up the Cl and drove him to another location, where they recovered the drugs and audio/video equipment.

¶ 3. A Madison County grand jury indicted Beal on one count of selling cocaine in violation of Mississippi Code Annotated section 41-29-139 (Rev.2013). He was also charged under Mississippi Code Annotated section 41-29-147 (Rev.2013) as a subsequent drug offender subject to an enhanced punishment. Beal’s indictment was also later amended to reflect his nonviolent-habitual-offender status pursuant to section 99-19-81.

¶ 4. After extensive pretrial motions and hearings, Beal’s jury trial began on December 13, 2011. First, the State offered the testimony of Captain Jones. Captain Jones explained that he and Agent Curtis picked up the Cl, who had acted as a confidential informant for them in the past, and took him to another location to search him for contraband, outfit him with the audio/video equipment, and provide him with department-issued money to buy the drugs. Captain Jones also explained that the Cl received thirty dollars as compensation in exchange for acting as a confidential informant. The State entered into evidence several still photos taken from the recovered video depicting Beal behind the steering wheel of a car and holding, what Captain Jones and the Cl testified to be, two rocks of crack cocaine. Archie Nichols,, a forensic scientist at the Mississippi Crime Laboratory, testified that tests confirmed that the two substances recovered were crack cocaine. In addition to the still photographs, the jury also watched the video of the transaction and was provided a transcript to review while watching the video. Captain Jones also described an interaction he had with Beal after Beal’s arrest. According to Captain Jones, Beal asked him whether there was anything he could do to make the case go away. He ultimately offered Captain Jones $10,000 to dismiss the case. This offer resulted in a subsequent bribery charge.

¶ 5. Chief Deputy Randy Tucker also testified for the State. Upon Beal’s arrest, Chief Tucker advised him of his Miranda rights, which Beal waived. Chief Tucker testified that Beal confessed to him that he had sold cocaine to the Cl. He also testified that Beal attempted to bribe Captain Jones with $10,000 to dismiss the case.

¶ 6. Next, the Cl testified about his involvement as the confidential informant. He stated that he had known Beal for his whole life because they grew up in the same area. He confirmed that the video showing the drug transaction was accurate, as was the transcript made from the video and the still photographs also taken from the video. The Cl testified that one of the pictures shown depicts Beal holding two rocks of crack cocaine that Beal then handed to him in exchange for thirty dollars.

¶ 7. Following the denial of his motion for a directed verdict, Beal offered one witness on his behalf: Agent Curtis. Agent Curtis’s testimony primarily reiterated Captain Jones’s testimony as to how they utilized the Cl as a confidential informant and the events that occurred on the day the Cl bought drugs from Beal. On cross-examination, Agent Curtis also confirmed that Beal had admitted to selling the Cl cocaine and admitted to offering Captain Jones money in exchange for having the drug charges dropped.

¶ 8. The circuit court denied Beal’s request for a jury instruction cautioning the jury to look upon the Cl’s testimony with suspicion and distrust. After receiving its instructions, the jury deliberated and re-tened a verdict finding Beal guilty. Beal was sentenced, as a subsequent drug offender pursuant to section 41-29-147 and a habitual offender pursuant to section 99-19-81, to serve sixty years in the custody of the MDOC. Beal filed the present appeal.

¶ 9. Beal argues three issues in his brief:

I. Whether plain error occurred as a result of the erasure of a[n] ... audio backup device that denied [Beal] his right to confront his accusers[,] especially in light of the inaudible condition of the videotape and the testimony of the confidential informant[.]
II. Whether the [circuit] court erred in not allowing a “great care and concern” jury instruction!.]
III. Whether [the circuit] court erred by admitting evidence and testimony associated with [Beal’s] subsequent bribery charge and conviction under [Mississippi Rule of Evidence] 404(b)[.]

ANALYSIS

I. Plain Error

¶ 10. In his first assignment of error, Beal submits that it was plain error that the audio backup recording device was not entered into evidence, and the failure to enter it into evidence was a violation of his right to confront his accuser under the Confrontation Clause, and his right to a fair trial. The sole authorities cited by Beal on this issue only provide us with a discussion of general plain-error principles. He cites to no other authority to support his contention that his rights were in any way violated.

¶ 11. Mississippi Rule of Appellate Procedure 28(a)(6) provides that Beal’s brief should contain his “contentions ... with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” (Emphasis added). The failure to cite relevant authority to support his argument “obviates the appellate court’s obligation to review such issues.” Gillett v. State, 56 So.3d 469, 517 (¶ 142) (Miss.2010) (citation omitted) (quoting Simmons v. State, 805 So.2d 452, 487 (¶ 90) (Miss.2001)).

¶ 12. Because Beal provided no relevant authority, we decline to address this issue.

II. Jury Instruction

¶ 13. Beal’s next argument is that the circuit court erred in denying a “great care and concern” jury instruction as to the Cl’s testimony. This type of instruction would instruct the jury that the uncorroborated testimony of an alleged accomplice should “be viewed with great caution and suspicion.” Walker v. State, 229 Miss. 540, 545, 91 So.2d 548, 549 (1956). It is well established that “|j]ury instructions are generally within the discretion of the trial court and the settled standard of review is abuse of discretion.” Bailey v. State, 78 So.3d 308, 315 (¶ 20) (Miss.2012) (citing Newell v. State, 49 So.3d 66, 73 (¶ 20) (Miss.2010)).

¶ 14. In Webber v. State, 108 So.3d 930, 931-32 (¶ 7) (Miss.2013), the Mississippi Supreme Court held that the circuit court did not abuse its discretion in denying Freddie Webber Jr.’s proposed cautionary jury instruction about the testimony of the confidential informant at trial. The supreme court held that because the details of the confidential informant and the count/s pay arrangement were disclosed to the jury and the confidential informant was subject to cross-examination, it was not an abuse of discretion to deny Webber’s proposed jury instruction. Id.

¶ 15. We find that Webber is on point for the present case. Through the testimony of the Cl and Captain Jones, the jury was aware that the Cl received thirty dollars for his participation as a confidential informant. Beal, through his attorney, did cross-examine the Cl on the details of the pay arrangement made between the Cl and Captain Jones. Because the jury was properly informed of any arrangement or deal and the Cl was subject to cross-examination, we cannot find that the circuit court abused its discretion in denying Beal’s proposed instruction.

¶ 16. This issue is without merit.

III. Rule 404(b)

¶ 17. The standard of review for the admission or exclusion of evidence is well settled. The “[ajdmission or suppression of evidence is within the discretion of the trial judge and -will not be reversed absent an abuse of that discretion.” Hag-gerty v. Foster, 838 So.2d 948, 958 (¶ 25) (Miss.2002). Further, “where error involves the admission or exclusion of evidence, this Court will not reverse unless the error adversely affects a substantial right of a party.” Id. (citation and internal quotation marks omitted).

¶ 18. Beal argues that pursuant to Rule 404(b), the circuit court erred in allowing testimony related to his subsequent bribery charge into evidence. Rule 404(b) says:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

At trial, Captain Jones, Chief Tucker, and Agent Curtis testified that when Beal was arrested for selling cocaine, he offered Captain Jones approximately $10,000 to make the charges go away. The circuit court allowed this testimony, finding that it showed Beal’s consciousness of guilt, knowledge, plan, and motive. It further found that the probative value was not outweighed by the danger of unfair prejudice.

¶ 19. Evidence of Beal’s offer to Captain Jones was limited to only the voluntary statements he made to Captain Jones. No other discussion or elaboration was permitted, including whether Beal was ever formally charged and convicted of bribery. We find that this testimony was not used to show that Beal acted in conformity with his character, but rather certainly may be considered as probative of Beal’s knowledge or consciousness of his own factual guilt. Therefore, we do not find that the circuit court abused its discretion in allowing the testimony into evidence.

¶ 20. This issue lacks merit.

¶ 21. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF ONE COUNT OF THE SALE OF COCAINE AND SENTENCE, AS A HABITUAL OFFENDER AND SUBSEQUENT DRUG OFFENDER, OF SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE, PROBATION, OR REDUCTION OR SUSPENSION OF THE SENTENCE, AND TO PAY A FINE OF $2,000,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . At the time of the transaction, Captain Jones had been a lieutenant. However for the purpose of this appeal, we will refer to him by his rank at the time of trial, which was captain.

      . The indictment also charged him with selling cocaine within 1,500 feet of a church in violation of Mississippi Code Annotated section 41-29-142 (Rev.2013). This enhancement was not pursued at trial.

      . Beal had a prior trial on the same incident that resulted in a hung jury.

      . Since trial, Chief Tucker has been elected sheriff. For consistency, we will refer to him by his rank at the time of trial.

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