author: JAMES, J.,

text:
    Dareous Rico BRYANT a/k/a Dareous Bryant a/k/a Rico Bryant, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-02053-COA.
    Court of Appeals of Mississippi.
    Aug. 19, 2014.

      Justin Michael Taylor, attorney for appellant.
    Office of the Attorney General by Melanie Dotson Thomas, attorney for appellee.
    Before IRVING, P.J., MAXWELL and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Dareous Rico Bryant was convicted of murder and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Bryant filed a motion for a judgment notwithstanding the verdict and a motion for a new trial. The trial court denied his motion. Bryant now appeals raising the following issues: whether the trial court erred by not conducting a hearing on jury tampering and whether there was sufficient evidence to support the conviction. Finding no error, we affirm.

FACTS

¶2. On May 1, 2009, Bryant threw a birthday party at the Bee Hive Club in Shuqualak, Mississippi. Bryant arrived at the club between 9:30 and 10:00 p.m. Bryant gave Mary Nailer, the owner of the club, a gun and asked her if she would hold it for him. Nailer then hid the gun behind the bar away from the patrons. There are varied accounts of what happened next, but the salient facts are as follows. A group of female guests got into a fight that started in the club and moved outside. Bryant went outside to break up the fight. After Bryant returned to the club, another fight occurred between a person known only as “Lil G” and Jeremy Peyton. Lil G had a weapon, chased Peyton, and may have shot at him as they ran down the street in front of the club.

¶ 3. There were two additional fights; one of the fights, however, involved Bryant’s brother, Deon Bryant, and Hendricks Malone. Michael Taylor and the victim, Lamarco Tate, were with Malone during the confrontation. Malone and Deon had exchanged heated comments earlier in the evening. Bryant and Deon left the club together and walked toward the stop sign by the club where the confrontation between Malone and Deon had taken place. According to various witness statements, Deon punched Malone and then Tate punched Deon. According to Javacus Gillespie, a witness, after Tate punched Deon, Bryant pulled the gun from his waistband and shot Tate. After the incident, the club was closed for two weeks. Nailer testified that when she returned to the club, Bryant’s gun was missing.

¶ 4. At trial, Bryant testified that once Tate was shot, multiple people started shooting; however, he did not identify who was shooting. Bryant testified that he did not have a gun on him at the time of the shooting. Further, Bryant stated that he did not know Tate and bore no ill will against him. According to Bryant, Deon was not hit by Tate, and Bryant stood behind his brother when Tate was shot.

¶ 5. After a jury trial, Bryant was convicted of murder and sentenced to life imprisonment. Bryant filed a motion for a judgment notwithstanding the verdict (JNOV) and a new trial alleging juror misconduct and challenging the weight and sufficiency of the evidence. An additional motion addressing the issue of juror misconduct was filed. The trial court denied all of the motions. Bryant appeals.

DISCUSSION

I. Whether the trial court erred by not conducting a “fair and adequate” hearing on Bryant’s jury-tampering allegations.

¶ 6. Bryant argues that the trial court was put on notice of the outside influence on members of the jury. Bryant also asserts that the trial court erred when it refused to question the two juror witnesses available at the hearing on the motion for a JNOV.. Further, Bryant contends that the inquiry actually conducted should have included the jurors instead of only the bailiffs. By failing to do so, Bryant argues, the trial court did not conduct a “fair and adequate” hearing on the allegations of outside influence on the jury.

¶ 7. Bryant cites Mississippi Rule of Evidence 606(b):

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

“The purpose of Rule 606(b) is to protect jurors from fear of being interrogated about their actions or mental processes and allow the jury to deliberate freely.” Rutland v. State, 60 So.3d 137, 142 (¶ 20) (Miss.2011).

¶ 8. In Roach v. State, 116 So.3d 126, 132 (¶ 17) (Miss.2013), the supreme court outlined the process employed by trial courts when the issues of juror misconduct or extraneous information arise. First, the trial court is to determine whether an inquiry is warranted. Id. “An investigation is warranted if the trial judge finds that ‘good cause exists to believe that there was in fact an improper outside in.-fluence or extraneous prejudicial information.’” Id. If the trial court finds that there is no “threshold showing of external influences, the inquiry stops there.” Id. However, if good cause is shown, then the trial court should conduct a post-trial hearing to determine if there was improper influence. Id.

¶ 9. There is a presumption of jury impartiality in any trial. Id. at 133 (¶ 21). To meet the threshold showing, “the party contending misconduct occurred ‘must make an adequate showing to overcome the presumption in this state of jury impartiality.’ ” Id. “At the very minimum, it must be shown that there is sufficient evidence to conclude that good cause exists to believe that there was in fact an improper outside influence or extraneous prejudicial information.” Gladney v. Clarksdale Beverage Co., 625 So.2d 407, 419 (Miss.1993).

¶ 10. At trial, when the jury was initially polled, juror Kennedy Gilkey voted not guilty. After Gilkey gave his vote, the jury was sent back to deliberate further. When the jury came back the second time, it was a unanimous verdict of guilty.

¶ 11. At the hearing on the motion for a JNOV, Bryant stated that his family members came into contact with certain jurors and learned that someone informed a member of the jury that the defendant had pled guilty and that they should return a verdict of guilty. There is, however, no information in the record as to who the person was that informed the jury of Bryant’s supposed plea or the juror to whom it was said. Although two jury members were available to testify, up to that day in court, no evidence had been submitted to support any of the allegations.

¶ 12. Further, there is nothing in the record to indicate that Bryant’s counsel actually spoke to or secured any statements from the jurors who were available to testify. Additionally, the trial judge did make an inquiry into the juror-misconduct allegation by questioning both of the bailiffs who were stationed outside the jury room. The trial judge stated that in Nox-ubee County, where the trial was held, there was only one way in and out of the jury-deliberation room. Therefore, the bailiffs could have seen who went in and testified that they were stationed outside of the room. They did not see anyone interfere with the deliberations. Accordingly, we find that the trial court conducted a fair and adequate inquiry into Bryant’s allegations of juror misconduct.

II. Whether there was insufficient evidence to support a guilty verdict.

¶ 13. A motion for a JNOV challenges the legal sufficiency of the evidence. Johnson v. St. Dominics-Jackson Mem’l Hosp., 967 So.2d 20, 22 (¶3) (Miss.2007). The standard of review for a denial of a motion for a JNOV is de novo. Id. The Mississippi Supreme Court has stated “this Court will affirm the denial of a motion for [a] JNOV if there is substantial evidence to support the verdict.” Daniels v. State, 107 So.3d 961, 963 (¶ 10) (Miss. 2013). “Substantial evidence is information of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions.” Id. at (¶ 11).

¶ 14. When reviewing a motion for a JNOV, “the trial judge is required to accept as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn therefrom, and to disregard evidence favorable to the defendant.” Mitchell v. State, 803 So.2d 479, 484 (¶ 12) (Miss.Ct.App.2001). “We will reverse only where ‘with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair minded jurors could only find the accused not guilty.’ ” Dampeer v. State, 989 So.2d 462, 464 (¶ 7) (Miss.Ct.App.2008).

¶ 15. Bryant also filed a motion for a new trial. “A motion for a new trial challenges the weight of the evidence.” Lafont v. State, 9 So.3d 1143, 1144-45 (¶ 6) (Miss.Ct.App.2008). The standard of review applied to a denial of a motion for a new trial is abuse of discretion. Id. “We will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id.

¶ 16. At trial, there were several eyewitnesses to the shooting. The State also presented expert testimony from Dr. Lisa Funte, who testified about the injuries sustained by Tate. Bryant presented several witnesses and testified in his defense. “[I]t is within the province of the trial jury to determine the weight and worth of the testimony to pass upon contradictions in the evidence, and credibility of witnesses.” Martin v. Ill. Cent. R.R. Co., 246 Miss. 102, 110, 149 So.2d 344, 348 (1963). The jury serves as a fact-finder, and it is within their discretion to decide whether or not a witness is credible. The jury did not accept Bryant’s theory of the case and entered a guilty verdict. In viewing the evidence in the light most favorable to the State, we find that there was sufficient evidence to support Bryant’s conviction of murder.

CONCLUSION

¶ 17. While Bryant argues he did not receive a fair and adequate inquiry into the allegation of juror misconduct, the jury was polled, and during the hearing on the motion for a JNOV, the bailiffs who supervised the jury during their deliberations were questioned and could not identify any extraneous influence. Although Bryant contends that the evidence presented at trial was insufficient, the State presented eyewitnesses and expert testimony supporting the verdict. Accordingly the judgment of the Noxubee County Circuit Court is affirmed.

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

LEE, C.J, IRVING and GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL and FAIR, JJ., CONCUR.


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    Christy A. HARPER, Appellant v. Norman EDWARDS, Appellee.
    No. 2013-CA-01263-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2014.

      Hal Scot Spragins Jr., Hernando, Dawn Davis Carson, Russell Barton Jordan, Her-nando, attorneys for appellant.
    Thomas Alan Womble, Batesville, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Norman Edwards was driving on a two-lane county road when he rounded a curve and encountered Christy Harper’s vehicle parked on the wrong side of the road at her mailbox. Edwards was unable to avoid a collision because, at that moment, another vehicle was approaching in the correct lane. He brought suit against Harper to recover for injuries and property damage suffered in the accident. The jury found that Edwards had suffered $25,000 in damages, for which Harper was ninety-five percent at fault. Harper appeals, and we affirm.

DISCUSSION

1. Opening Prayer

¶ 2. Harper’s first issue on appeal centers around the prayer prior to opening court for the day, or, more precisely, who gave it. At 8 a.m. the morning of the trial, the circuit clerk learned that the minister who had originally been scheduled to lead the prayer would not be able to attend. “Out of desperation,” the clerk asked Ru-bert Morgan, a local minister, to substitute. He had given the opening prayer in the past. Immediately after the prayer, Edwards’s attorney introduced Morgan to Harper’s attorney and informed her . that Morgan worked as an investigator for 'his law firm. Morgan was in court that day to assist Edwards’s attorney with jury selection.

¶ 3. During voir dire, one of the veniremen recognized Morgan as an employee of a law firm that had represented her many years before. Harper’s attorney, apparently trying to figure out which firm, told the venireman — in front of the entire panel — that Morgan worked for opposing counsel’s law firm.

¶ 4. After finishing her voir dire, Harper moved for a mistrial. She did not take issue with the content of the prayer or how it was delivered, but she argued that allowing Morgan to lead it amounted to an endorsement of Edwards’s counsel. The trial court refused to grant a mistrial, but it ordered Morgan not to assist Edwards’s counsel inside the courtroom. It was noted on the record that Morgan was never seen by the venire sitting at the counsel table or otherwise conferring with Edwards’s attorney. The venireman who had been represented by Morgan’s employer was struck for cause. On appeal, Harper argues that the failure to grant a mistrial was reversible error.

¶ 5. A mistrial should be granted when one party suffers “substantial and irreparable prejudice.” URCCC 3.12. The trial judge, who had a firsthand view of the events as they unfolded, is in the best position to determine whether prejudice has occurred and to what extent it can be cured. Coho Resources, Inc. v. McCarthy, 829 So.2d 1, 18 (¶ 50) (Miss.2002). Thus we review the grant or denial of a motion for mistrial for an abuse of discretion. Estate of Gibson v. Magnolia Healthcare Inc., 91 So.3d 616, 629 (¶ 37) (Miss.2012).

¶ 6. The prayer occurred off the record and before this case was called. From the record established during Harper’s motion for a mistrial, all we know is that Morgan led the prayer and then sat down next to the circuit clerk. This limited record illustrates the necessity of entrusting the granting of a mistrial to the sound discretion of the trial court. Having observed the entire scene firsthand, the trial judge determined that Morgan would not have had any significant prejudicial effect on the venire. From what is before this Court on appeal, we cannot refute that conclusion.

¶ 7. Moreover, since the prayer occurred before the trial began, Harper had ample opportunity during voir dire to explore and mitigate any resulting prejudice. But while she did question the venireman who volunteered that she knew Morgan, Harper did not voir dire the entire panel about Morgan or about the prayer. Likewise, Harper did not specifically request that the trial court admonish the venire or the jury regarding the issues of which she complains.

¶ 8. The record does reflect that the jurors took the oath to be fair and impartial in their deliberations and to decide the case only on the evidence presented. The jury was likewise instructed before beginning its deliberations. As the Mississippi Supreme Court has held, the jury is presumed to have adhered to its oath:

To the extent that any juror, because of his relationship to one of the parties, his occupation, his past experience, or whatever, would normally lean in favor of one of the parties, or be biased against the other, or one’s claim or the other’s defense in the lawsuit, to this extent, of course, his ability to be fair and impartial is impaired. It should also be borne in mind that jurors take their oaths and responsibilities seriously, and when a prospective juror assures the court that, despite the circumstance that raises some question as to his qualification, this will not affect his verdict, this promise is entitled to considerable deference.

Scott v. Ball, 595 So.2d 848, 850 (Miss.1992).

¶ 9. It would certainly have been preferable for the circuit clerk to have selected someone else to lead the prayer. But from the record we cannot say Harper suffered irreparable prejudice, so we cannot conclude that the trial court abused its discretion in denying her motion for a mistrial.

2. Judgment Notwithstanding the Verdict/Property Damage

¶ 10. Harper’s second issue is presented as whether the trial court erred in denying her motion for a judgment notwithstanding the verdict. But she makes numerous independent assertions under this umbrella, including challenges to several different evidentiary rulings, and nearly all of these subarguments are presented in a cursory fashion. This is contrary to Mississippi Rule of Appellate Procedure 28(a)(3), which requires that “[ejach issue presented for review shall be separately numbered” in the statement of issues. “No issue not distinctly identified shall be argued by counsel[.]” Id. Failure to abide by Rule 28(a)(3) bars our review of these assertions. Reed v. State, 987 So.2d 1054, 1056-57 (¶ 8) (Miss.Ct.App.2008).

¶ 11. Harper’s main thrust under this issue is her challenge to the jury’s finding that Edwards had suffered $25,000 in damages. Her argument, to the extent it is properly before this Court, seems to be that she is entitled to a JNOV because of defects in Edwards’s proof of property damage, the loss of his vehicle, which he contended amounted to $1,700. We note, however, that the jury returned a general verdict on all of Edwards’s damages. The damages included medical expenses and lingering pain and suffering, and since, as we shall explain the next issue, those are sufficient to sustain the $25,000 finding of damages, the claim that the trial court should have granted a JNOV based on defects in the proof of property damage is a nonstarter. Ill. Cent. R.R. Co. v. Brent, 133 So.3d 760, 770 (¶ 19) (Miss.2013).

3. Remittitur/New Trial

¶ 12. In the final issue, Harper contends that the damages award is excessive because it is approximately twelve times the medical bills incurred. From this, Harper contends that the verdict was the product of passion or prejudice.

¶ 18. The question is whether the award is “so excessive as to strike mankind, at first blush, as being beyond all measure, unreasonable, and outrageous, and ... manifestly show[s] the jury to have been actuated by passion, partiality, prejudice, or corruption.” Irby v. Travis, 935 So.2d 884, 940 (¶ 176) (Miss.2006). Whether an award is excessive should be determined on a case-by-ease basis. Miss. Dep’t of Pub. Safety v. Durn, 861 So.2d 990, 998 (¶ 27) (Miss.2003). The standard of review from the denial of a remittitur or a new trial is abuse of discretion. Bailey Lumber & Supply Co. v. Robinson, 98 So.3d 986, 991 (¶ 11) (Miss.2012). “In reviewing a jury verdict, the Court will resolve all conflicts of evidence in the appel-lee’s favor and determines all reasonable inferences from the testimony in the light most favorable to the appellee’s position.” Irby, 935 So.2d at 940 (¶ 176).

¶ 14. Edwards’s medical bills totaled about two thousand dollars. He testified that the pain began the day after the accident, a Saturday. His back, arm, neck, and head hurt. He initially treated it with rest and over-the-counter pain medication. But the pain continued to get worse until he went to the emergency room the following Tuesday. There, Edwards was given prescription pain medication and steroids. He was then treated by a chiropractor and underwent physical therapy with Linda Troy, a nurse practitioner. Edwards testified that his treatment had given him only partial relief and that he had continuing soreness and headaches through the time of trial, about one and a half years after the accident. He had to scale back activities outside of work, such as growing watermelons, through which he had previously earned additional income.

¶ 15. Awards of thirty, forty, fifty, or even one hundred times the actual damages shown have been affirmed on appeal, “[d]ue to the uncertainty of the monetary value placed on pain and suffering and future damages.” See Circus Circus Miss. Inc. v. Cushing, 108 So.3d 980, 990 (¶¶ 21-22) (Miss.Ct.App.2012) (citations omitted). Cases cited by Edwards where a remittitur was granted when hundreds of thousands or millions of dollars were awarded for pain and suffering are inappo-site; claims of excessiveness should be reviewed “by comparing the awards at issue with rulings in other factually similar cases decided under controlling law.” Id. at (¶ 20) (citing Cade v. Walker, 771 So.2d 403, 408 (¶ 12) (Miss.Ct.App.2008)). Harper also presents several cases where the granting of a remittitur was affirmed on appeal, but those are likewise distinguishable because of the deference owed to trial judges. See Stringer v. Crowson, 797 So.2d 368, 370-72 (¶¶ 5-9) (Miss.Ct.App. 2001) (“We cannot say the trial judge ..., having had the opportunity to observe the demeanor of the witnesses and apply his learned experience from the most central vantage point of the entire trial, exceeded or abused his discretion, and accordingly [we] affirm the remittitur.”). Since the trial judge did not grant a remittitur in this case, we must defer, as he did, to the jury.

¶ 16. Given the evidence of Edwards’s injuries and lingering pain, we cannot say that a $25,000 award “shocks the conscience” or that the trial court abused its discretion in denying Harper’s motion for a remittitur or a new trial. This issue is without merit.

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

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

      . Edwards testified that his vehicle was worth $2,000 before the accident but just $300 (as scrap) afterwards.


author: ISHEE, J.,

text:
    Teresa Jean BOLIVAR, Appellant v. Larry Marvin BOLIVAR, Appellee.
    No. 2013-CA-01352-COA.
    Court of Appeals of Mississippi.
    Nov. 25, 2014.
    Vanessa J. Jones, Hattiesburg, attorney for appellant.
    Terry L. Caves, Laurel, Risher Grant-ham Caves, attorneys for appellee.
    Before LEE, C.J., ISHEE and JAMES, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In May 2013, the Jones County Chancery Court granted Larry Bolivar a divorce on the ground of desertion from Teresa Bolivar. Teresa filed a motion to set aside the judgment of divorce on June 12, 2013, alleging that she had not been served properly. Following a July 2013 hearing, the chancery court denied the motion. Teresa filed a motion for reconsideration, which was also denied. Aggrieved, Teresa appeals. Finding no error, we affirm the judgment of the chancery court.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Larry and Teresa were married in 1981. Together, they had two sons, who were both emancipated at the time of these proceedings. On February 19, 2013, Larry filed for divorce on the ground of desertion. A summons was issued for Teresa on March 12, 2013, stating that she had thirty days from the date of the delivery to respond or a judgment by default would be entered. Process was served on Teresa on March 21, 2013.

¶ 3. A trial was held on May 8, 2013. At the beginning of the trial, the chancery court acknowledged that process had been served on Teresa but that she had failed to respond or appear. The trial then proceeded with the testimony of Larry and Joe Parker. Larry testified that Teresa had left the marital home in September 2011 and had not returned. Larry stated that he made attempts to reconcile with Teresa, but that she had no intentions of returning to the marriage. Larry then testified regarding accumulated property and personal financial contributions during the marriage.

¶4. Parker testified to knowing both Larry and Teresa for quite some time. He confirmed that Teresa left the marital home in September 2011 and had not made any effort or expressed any intent of returning to the marriage. Subsequently, the chancery court granted a divorce on the ground of desertion in favor of Larry.

¶ 5. In June 2013, Teresa filed the following: (1) a motion to set aside the judgment of divorce; (2) an answer to the complaint for divorce; and (3) a counterclaim for divorce on the ground of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. In her motion to set aside the judgment of divorce, Teresa alleged that she was not served properly a summons to appear in court and had no knowledge of the proceedings. A hearing on that motion was set for July 3, 2013.

¶ 6. At the hearing, Teresa testified that she was served with papers and had retained a lawyer, and that her lawyer filed a motion. She stated that she did not hear about the May 2013 trial until she was sent a final divorce decree. Based on Teresa’s admission that she was served properly, the chancery court concluded that she failed to respond timely to the complaint for divorce. Further, the chancery court found that this failure precluded her from asserting the right to receive notice of the trial date. As such, the chancery court denied her motion.

¶ 7. On July 23, 2013, Teresa filed a motion to reconsider. In that motion, she again raised the issue of improper service. The motion was denied. Teresa now appeals.

STANDARD OF REVIEW

¶ 8. “This Court employs a limited standard of review when considering domestic-relations cases.” Jackson v. Jackson, 114 So.3d 768, 773 (¶ 10) (Miss.Ct.App.2013) (citations omitted). “Consequently, an appellate court will not disturb the chancery court’s findings unless such findings are manifestly wrong [or] clearly erroneous, or the court applied the wrong legal standard.” Id. However, questions of law are reviewed de novo. Gordon v. Gordon, 126 So.3d 922, 925 (¶ 9) (Miss.Ct.App.2013) (citations omitted).

DISCUSSION

¶ 9. On appeal, Teresa argues that the chancery court erred in denying her motion to set aside the judgment of divorce because she was not properly served pursuant to the Mississippi Rules of Civil Procedure. Teresa asserts that Larry failed to serve her notice of the May 2013 hearing as required by Mississippi Rule of Civil Procedure 5. Larry argues that Teresa’s failure to answer or appear after she was properly served with process negated his obligation to send her a notice of the hearing. Teresa, however, contends that Larry failed to declare her in default as required by Mississippi Rule of Civil Procedure 55. Therefore, she maintains that she was still owed notice of the hearing.

¶ 10. This issue is being raised for the first time on appeal. Teresa’s motion to set aside the judgment of divorce and motion to reconsider only challenged service of process pursuant to Mississippi Rule of Civil Procedure 4(c). It is well settled that “[ijssues raised for the first time on appeal are procedurally barred.” McNeese v. McNeese, 119 So.3d 264, 276 (¶ 34) (Miss.2013). Notwithstanding the procedural bar, we find this issue to be without merit.

¶ 11. Rule 5(a), in pertinent part, provides that “every written notice ... shall be served upon each of the parties.” Nonetheless, Rule 5(a) also states that “[n]o service need be made on parties in default for failure to appear[.]” At the hearing regarding Teresa’s motion to set aside the divorce judgment, Teresa testified that she was served properly with process. Although she contends that she had obtained an attorney whom she believed was handling her case, the record does not reflect that any action was taken on her behalf in the thirty days following her receipt of the summons. As such, she was in default for failing to answer or appear. Nonetheless, Teresa argues that she was not properly declared in default pursuant to Rule 55.

¶ 12. Rule 55 governs default judgments, and provides that when a party “has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.” M.R.C.P. 55(a). However, “[i]f the party against whom judgment by default is sought has appeared in the action, he [or his representative] shall be served with written notice of the application for judgment at least three days prior to the hearing of such application[.]” M.R.C.P. 55(b). Teresa contends that Larry should have applied for an entry of default with the chancery clerk or applied for a default judgment in the chancery court. She maintains that his failure to declare her in default meant that she was not in default and his duty to serve her notice remained intact. As such, she argues that the judgment in his favor is void. We disagree.

¶ 13. This rule is “not directly applicable” to divorce proceedings. Stinson v. Stinson, 738 So.2d 1259, 1262 (¶ 12) (Miss.1999). Specifically, the Mississippi Supreme Court has held that a judgment entered in an action for divorce following a defendant’s failure to answer is “a special kind of default judgment.” Id. at 1263 (¶ 13) (quoting Mayoza v. Mayoza, 526 So.2d 547, 548 (Miss.1988)).

A defendant’s failure to answer does not drag a divorce case to a halt. Instead, the plaintiff must, at a hearing, prove the allegations that support the receipt of a divorce. If that is done, then the chancellor has authority to grant the divorce despite the absence of the defendant.

Id. at (¶ 15). This reasoning is supported by Rule 55(e), which provides that “unless the claimant establishes his claim or rights to relief by evidence,” a default judgment will not be entered in a suit for divorce. “Furthermore, a divorce will not be granted on the uncorroborated testimony of the claimant.” Lindsey v. Lindsey, 818 So.2d 1191, 1194 (¶ 13) (Miss.2002).

¶ 14. Since Teresa failed to answer or appear, we find that she was in default and not owed notice of the divorce hearing. Further, after a review of the record, we find that Larry established his claim to a judgment of divorce despite Teresa’s absence. Larry’s testimony, in addition to the corroborating testimony of Parker, clearly established a divorce on the grounds of desertion. As such, we find this issue is without merit. The judgment of the chancery court is affirmed.

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

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


author: BARNES, J.,

text:
    Gregory DAILEY, Appellant v. Tracie McBEATH (Fairley), Appellee.
    No. 2012-CA-01393-COA.
    Court of Appeals of Mississippi.
    Nov. 25, 2014.

      James Nelson Scarff II, David Neil McCarty, Pascagoula, attorneys for appellant.
    Wendy Walker Martin, Pascagoula, attorney for appellee.
   BARNES, J.,

for the Court:

¶ 1. Tracie McBeath Fairley and Gregory Dailey had a child born out of wedlock on November 25, 1992. On May 31, 2001, Tracie filed a petition for custody and other relief. The parties entered into an agreed order on September 6, 2001, wherein Tracie was granted primary physical and legal custody of the child, and Gregory was ordered to pay $334 per month in child support (retroactive to August 2, 2001), $1,750 in back child support, and one-half of the child’s reasonable medical expenses not covered by insurance.

¶ 2. However, Gregory became extremely delinquent on the ordered child support, and Tracie filed a petition for modification and contempt on December 5, 2005, followed by an amended petition for modification and contempt filed on June 19, 2006. A bench warrant was also issued for Gregory at that time. A third amended petition for modification and contempt was filed by Tracie on November 12, 2009.

¶ 3. On February 5, 2010, Gregory was found in contempt and ordered to pay a purge amount of $5,000, and the chancery court reset “this matter” for a later date. On April 21, 2010, the chancery court found Gregory in “willful, wanton[,] and contumacious contempt” of the 2001 order, stating:

[Gregory] never pays his support on time. He has only paid his support when he has been summoned to [c]ourt. He has failed to follow [Uniform Chancery Court] Rule 8.06 and give his change of address to the [c]ourt[,] and the [c]ourt finds that he has on numerous occasions avoided process although he has come to court when served. He has only paid[,] in the last nine years, $9,000.00 towards the support of this now 17 year old child. The support amount that he was ordered to pay in the amount of $334.00 a month certainly is a meager amount to support a 17 year old child. The matter of raising support is not before the [c]ourt.

The chancellor, therefore, granted Tracie a judgment of $35,695 ($27,486 in past child support, $7,000 in attorney’s fees, $900 in investigative fees to locate Gregory, and $309 in court costs), plus eight percent interest from the date of the order. The chancery court also ordered Gregory incarcerated until he paid a purge amount of $11,898.33, which he promptly paid. Gregory was ordered to pay an additional $200 on top of his monthly child-support pay-merits of $334 to reduce the remaining arrearage.

¶ 4. On June 21, 2011, Tracie filed another petition for modification and contempt, asserting that since the first contempt proceeding a year prior, Gregory had only paid $1,600 in child support, and he had paid nothing towards the arrear-age. She also claimed that a modification of child support was warranted due to a material change in circumstances, specifically the increased needs of the child, such as “college expenses, car insurance, and extracurricular activities.”

¶ 5. A hearing on the petition was held April 19, 2012. Trade's counsel asserted a motion to compel discovery, claiming that when she had finally received an answer from Gregory a week prior to the hearing, there was no proper documentation (tax returns, check stubs, etc.) included. She also claimed that Gregory had purposely eluded investigators, giving them false information, and that he was hiding assets. Gregory failed to appear at the hearing. His counsel, however, was present and acknowledged that Gregory had not filed tax returns for the last seven years. Gregory’s counsel complained that counsel opposite had not been communicating with him and that he had been unable to depose Tracie, even though he had been trying for months.

¶ 6. As a result, both parties requested a continuance, but the chancellor denied the motions and proceeded with the hearing, despite the protestations by his counsel that Gregory was not present. Tracie testified at the hearing that an increase in child support was needed because the child was now in college, and there had been no increase in child support since 2001. At the conclusion of Tracie’s testimony (since Gregory had failed to make an appearance), the chancellor issued a bench ruling, holding Gregory in contempt and ordering Gregory incarcerated until he paid a purge amount of $15,000. The chancellor indicated that the modified monthly child-support payment would be increased to $583, and he reduced Gregory’s additional monthly arrearage obligation from $200 to $100. Gregory was also ordered to pay one-half of the child’s college expenses.

¶ 7. The final judgment was entered on July 24, 2012. The order noted that, as of the April 19, 2012 hearing, Gregory was $24,114.46. (including interest) in arrears for child support. The chancellor found: “[Gregory] now owes an additional $8,016 in child support[,] plus $2,000 in attorney fees[.]” The chancellor awarded Tracie an additional judgment of $10,016, plus interest of two and one-half percent. Gregory was ordered incarcerated until he paid the purge amount of $15,000, and he was also ordered to pay one-half of the child’s college expenses. However, deviating from the court’s bench ruling, the order entered by the chancellor only increased Gregory’s monthly child-support payment to $450. Gregory now appeals the chancery court’s July 24, 2012 order, specifically the increase in monthly child support from $334 to $450 and the award of attorney’s fees to Tracie; he does not, however, challenge the arrearage of child support and the finding of contempt.

¶ 8. Finding that the chancellor failed to make specific findings of fact to support the modification of child support and the deviation from statutory guidelines, we reverse and remand for further proceedings consistent with this opinion. As to the issue of attorney’s fees, we find no abuse of discretion in the award of attorney’s fees to Tracie based on the court’s finding of contempt and affirm the judgment in part on this ground. However, we decline to grant Tracie’s request for attorney’s fees on appeal.

DISCUSSION

I. Whether the chancery court’s denial of a motion for a continuance was an abuse of discretion.

¶ 9. Gregory’s counsel made an appearance on his behalf at the April 19, 2012 hearing, evidently expecting that the chancery court was only going to address the motions for discovery and grant the parties’ motions for a continuance. However, the chancellor refused to continue the proceedings and denied both parties’ motions. Although counsel argued that Gregory was located three hours away in Madison, Mississippi, as were the attorney’s files for the case, the chancellor advised the parties to prepare for trial and to attempt to reach an agreement. He admonished:

I’m going to continue with the case and you have no authority to release your client. I have that trouble, in other cases and it’s my policy to go forward .... And I’m not going to play games with discovery.... Tall should have cooperated with each other. I’m going to try the case, so just get your stuff ready.
Now, what I will do is give y’all a chance to visit to see if you can resolve the matter. And it may be that you can talk to your client by phone. I will not tolerate from either one of you all the failure to cooperate and discuss a case.

¶ 10. On appeal, Gregory argues that the chancellor’s denial of a continuance, which gave his counsel only seventeen minutes to prepare for trial, was “an inherent abuse of discretion” and that he was “ambushed” and “unable to defend himself.” A chancellor’s decision to deny a motion for a continuance is reviewed for abuse of discretion. Sizemore v. Pickett, 76 So.3d 788, 794 (¶ 14) (Miss.Ct.App.2011) (citing Robinson v. Brown, 58 So.3d 38, 42 (¶ 10) (Miss.Ct.App.2011)). Absent a finding of prejudice, we will not reverse the denial of a continuance. Robinson, 58 So.3d at 42 (¶ 10).

¶ 11. While the chancellor’s decision to proceed with the hearing without Gregory present may appear harsh, we find that it was not an abuse of discretion. Gregory and his counsel should have been prepared for the possibility that the motions for a continuance would be denied. Gregory was obviously aware of the hearing, as his counsel was in attendance to represent him. Gregory does not contend that he was unable to attend the hearing, and he knew that he owed the prior judgment to Tracie and that the hearing had been scheduled for several months. Furthermore, the record shows that the chancery court had previously granted a continuance on August 17, 2011, and the chancellor noted at the hearing that the case had been set since February 21, 2011.

¶ 12. Consequently, we find any prejudice suffered by Gregory due to the chancellor’s decision to proceed with the hearing was of Gregory’s own making, and the chancellor did not abuse his discretion in denying the motions for a continuance.

II. Whether the chancery court’s failure to make specific findings of fact regarding the modification of child support, which deviated from the statutory guidelines, warrants reversal.

¶ 13. Gregory argues that the chancellor’s modification of child support should be reversed and remanded because the chancellor failed to make specific findings of fact as to why the increase in Gregory’s child-support obligation was in excess of the statutory guidelines. Mississippi Code Annotated section 43-19-101(1) (Supp.2012) establishes a rebuttable presumption that where one child is due support, the award of child support should be fourteen percent of the noncustodial parent’s adjusted gross income. However, “[a] chancery court may deviate from the statutory guidelines if it makes ‘an on-the-record finding that it would be unjust or inappropriate to apply the guidelines in the instant case.’ ” Curry v. Frazier, 119 So.3d 362, 366 (¶ 15) (Miss.Ct.App.2013) (quoting Garcia v. Garcia, 97 So.3d 109, 112 (¶ 12) (Miss.Ct.App.2012)). If there is “a substantial or material change in the circumstances of one or more of the interested parties: the father, the mother, and the child or children, arising subsequent to the entry of the decree to be modified,” a chancellor may modify child support. Id.

¶ 14. In the present case, the amount of child support awarded ($450) by the chancellor in the July 24, 2012 order was significantly greater than fourteen percent of Gregory’s reported monthly gross income of $1,505. Yet neither the chancellor’s bench ruling nor the final order contained any specific findings of fact as to why Gregory’s monthly child-support obligation was increased. At the hearing, the chancellor simply said:

THE COURT: What amount of support is he paying now? What’s the amount per month?
[TRACIE’S COUNSEL]: Three hundred and thirty-four when he pays it.
THE COURT: All right. His child support will be increased to [$]583 a month from that amount.

Other than clarifying that this amount did not include $100 in arrearage payments, the chancery court made no findings of fact regarding the modification. Additionally, the July 24, 2012 final order only stated: “At the trial, [Gregory] did not file [a Uniform Chancery Court Rule 8.05 financial statement]. Child support is increased to $450.00 per month and [Gregory] is to pay [one-half] of all college expenses to include tuition, books[,] and room and board if necessary.”

¶ 15. In Klein v. McIntyre, 966 So.2d 1252, 1258 (¶ 20) (Miss.Ct.App.2007), this Court reversed a modification of child support due to the chancery court’s failure to make specific findings of fact as to why the modified payments were lower than the statutory guidelines set forth in section 43-19-101. We concluded: “Without such findings, this Court is unable to determine whether the modification of child support is justified.”. Id.; see also Yelverton v. Yelverton, 961 So.2d 19, 27-28 (¶¶ 13-15) (Miss.2007) (finding that chancery court’s failure to make specific findings for its deviation from the statutory guidelines in awarding child support warranted reversal).

¶ 16. “When a chancellor makes a ruling without specific findings of fact and a party raises the issue of the amount of child support awarded, this Court will send the issue back to the lower court for the mandatory specific findings of fact as to why the chancellor deviated from the guidelines.” Morris v. Morris, 5 So.3d 476, 495 (¶ 47) (Miss.Ct.App.2008) (quoting McGehee v. Upchurch, 733 So.2d 364, 371 (¶ 37) (Miss.Ct.App.1999)). Here, since the chancellor provided no findings of fact (either at the hearing or in the order) as to why the child-support award deviated from the statutory guidelines of section 43-19-101, we are unable to determine from the record what factors the chancery court considered in modifying Gregory’s child-support obligation. Accordingly, we are compelled to reverse the chancellor’s order modifying child support and remand the case to the chancery court for further findings on the issue of the child-support modification.

III. Whether the chancellor erred in awarding attorney’s fees to Tracie.

¶ 17. Gregory claims that the award of attorney’s fees to Tracie was arbitrary and that the chancellor failed to address the factors set forth in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). However, this was not simply a child-support modification proceeding; it was also a contempt proceeding. As our supreme court recently noted:

“A party who incurs legal fees as the result of another’s conduct may be awarded fees without regard to need.” Bell on Mississippi Family Law § 10.03[1]. “There have been a number of prior decisions upholding the award of attorney’s fees to one party where the other party has been found to be in contempt of court or where that party’s actions caused additional legal fees to be incurred.” Chesney v. Chesney, 849 So.2d 860, 863 (¶ 12) (Miss.2002).

Huseth v. Huseth, 135 So.3d 846, 860 (¶ 45) (Miss.2014). “[Attorneys’ fees are properly assessed against a party found to be in contempt.” Dickerson v. Dickerson, 34 So.3d 637, 649 (¶ 47) (Miss.Ct.App.2010) (citing Mount v. Mount, 624 So.2d 1001, 1005 (Miss.1993)).

¶ 18. Gregory has consistently defied the chancery court’s order that he pay child support, causing Tracie and her attorney to expend time and money to enforce the 2001 agreement through contempt proceedings. Consequently, we find no error in the chancery court’s award of attorney’s fees to Tracie and affirm the judgment in part on this issue.

IV. Whether Tracie should be awarded attorney’s fees on appeal.

¶ 19. Tracie argues that she is entitled to $5,000 in attorney’s fees on appeal because Gregory’s claim is frivolous under Rule 38 of the Mississippi Rules of Appellate Procedure, which provides: “In a civil case if the Supreme Court or Court of Appeals shall determine that an appeal is frivolous, it shall award just damages and single or double costs to the appellee.” The comment to Rule 38 explains that “damages to be awarded may include attorneys’ fees and other expenses incurred by an appellee.” The evaluation of whether an appeal is frivolous under Rule 38 is conducted “using the same standard that applies under Rule 11 of the Mississippi Rules of Civil Procedure.” Balius v. Gaines, 95 So.3d 730, 732 (¶ 10) (Miss.Ct.App.2012) (citing Harris v. Harris, 988 So.2d 376, 380 (¶ 16) (Miss.2008)). “Accordingly, an appeal is frivolous under Rule 38 where the appellant has no hope of success.” Id. Since we have concluded that Gregory has brought a valid issue on appeal that warrants reversal, total reimbursement of Tracie’s attorney’s fees would not be merited on appeal under Rule 38.

¶20. Tracie alternatively argues she is entitled to attorney’s fees in the amount of $1,000, one-half of what she was awarded below. Generally, attorney’s fees on appeal are awarded “in the amount of one-half of what was awarded in the lower court.” Makamson v. Makamson, 928 So.2d 218, 222 (¶ 18) (Miss.Ct.App.2006) (citing Monroe v. Monroe, 745 So.2d 249, 253 (¶ 17) (Miss.1999)). However, “Attorney’s fees are based upon necessity rather than entitlement.” Id.

¶ 21. In Parker v. Bliven, 59 So.3d 619, 623 (¶ 24) (Miss.Ct.App.2010), this Court awarded appellate attorney’s fees when “the chancellor found that Bliven was entitled to an award of attorney’s fees because of Parker’s contempt and misconduct.” See also Webster v. Webster, 17 So.3d 602, 610 (¶ 21) (Miss.Ct.App.2009) (awarding one-half attorney’s fees on appeal without any discussion as to whether inability to pay or a finding of contempt was the reason for the award). But, in McDonald v. McDonald, 69 So.3d 61, 68 (¶ 17) (Miss.Ct.App.2011), we declined to award one-half of the attorney’s fees on appeal because the chancellor specifically stated that the attorney’s fees were being awarded due to the finding of contempt and defendant’s failure to pay the plaintiff, not the plaintiff’s inability to pay.

¶ 22. Here, there was no discussion by the chancellor at the 2012 hearing or in the July 24, 2012 order regarding Tracie’s inability to pay her attorney’s fees. However, in the April 2010 order, the chancellor had awarded Tracie $7,000 in attorney’s fees “due to the egregious conduct of the [defendant.” Furthermore, in Tracie’s July 21, 2011 petition for modification and contempt, she specifically argued that attorney’s fees should be awarded “due to the [respondent’s willful refusal to support his child.” Therefore, we must assume that the chancellor awarded attorney’s fees based on his finding of contempt and Gregory’s obstinate refusal to pay child support; not based on Tracie’s inability to pay. In the present appeal, Gregory has not challenged the order of contempt, but rather the modification of child support; therefore, the reason for which attorney’s fees were granted is not at issue on appeal.

¶ 23. Accordingly, we decline to award Tracie attorney’s fees on appeal.

¶ 24. THE JUDGMENT OF THE CHANCERY COURT OF JACKSON COUNTY IS AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The judgment of incarceration was stayed for thirty days.

      . It is not clear from the record why the modified amount of monthly child support ($450) in the July 24, 2012 order was decreased from the amount indicated by the court at the April 2012 hearing ($538). Regardless, the monthly child-support payments were increased from $334 to $450, and it is from that modification that Gregory appeals.

      . We find Owens v. Thomae, 759 So.2d 1117 (Miss.1999), the case cited by Gregory in support of the continuance, distinguishable as it concerned a plaintiff's Mississippi Rule of Civil Procedure 56(f) request for a continuance to obtain further affidavits to refute a motion for summary judgment. Such are not the facts of this case.

      . We note that, had Gregory wished, he could have filed a post-judgment motion under Mississippi Rule of Civil Procedure 52(a), which states: "In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.” (Emphasis added).

      . Although the trial court stated that Gregory did not file a Rule 8.05 financial statement, the record shows that a rudimentary Rule 8.05 statement was provided as an exhibit.


author: GRIFFIS, P.J.,

text:
    Larry Gene SINGLETON a/k/a Larry Singleton a/k/a Larry G. Singleton, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-01996-COA.
    Court of Appeals of Mississippi.
    Nov. 25, 2014.

      Office of State Public Defender by George T. Holmes, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Melanie Dotson Thomas, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Larry Gene Singleton was convicted of gratification of lust, sexual battery of a child under fourteen years of age, sexual battery of a child at least fourteen but under sixteen years of age, and possession of child pornography under Mississippi Code Annotated sections 97-5-23, 97-3-95(1)(d), 97 — 3—95(1)(c), and 97-5-33(5), respectively. Singleton argues the trial court erred when it: (1) denied Singleton’s motion to sever certain counts in the indictment; (2) admitted Exhibit 5 into evidence; and (3) denied Singleton’s motion to suppress his custodial statement. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. From approximately March 2005 to October 2012, Singleton engaged in a sexual relationship with Daniel Doe, a child who lived next door to Singleton. Daniel first went to Singleton’s house to play with Singleton’s grandson and to do odd chores. When Daniel turned eleven, however, the nature of the relationship changed.

¶ 3. Initially, Singleton showed Daniel his genitalia and asked to see Daniel’s. Singleton told Daniel “that it was normal for guys to practice for when a girl comes around” and began “stroking [Daniel] and stuff like that.” The physical contact escalated when Singleton started performing oral and anal sex with Daniel. Contemporaneously to some of these earlier acts, Singleton took pictures of a nude, prepubescent Daniel.

¶4. As Daniel got older, Singleton bribed him with alcohol, cigarettes, and pornography in exchange for sex, with the final encounter occurring in October 2012. Shortly thereafter, Daniel contacted the police regarding the acts perpetrated by Singleton.

¶ 5. On November 28, 2012, investigators with the Tate County Sheriffs Department arranged for a sting operation. Daniel called Singleton to talk about the sexual abuse while investigators listened to and recorded the telephone conversation.

¶ 6. During the phone conversation, Singleton confirmed some of the abuse, gave Daniel advice about sex, and commented on the changes in Daniel’s body from when he was a child. Singleton also admitted he erased all of the pictures he took of Daniel years earlier. At the end of the conversation, Singleton asked if Daniel recorded the conversation and asked to see him again soon.

¶ 7. Based on Daniel’s statement and the recorded phone conversation, the Tate County Sheriffs Department executed search and arrest warrants for Singleton on December 3, 2012. Singleton was arrested, and law enforcement seized a personal computer and pornographic pictures from his home.

¶ 8. At the time of his arrest, Singleton told the officers he needed his medication because he suffered from high blood pressure, a heart condition, and chronic obstructive pulmonary disease (COPD). Singleton was allowed to bring his medication with him and, once at the jail, a nurse evaluated Singleton. The nurse noted Singleton’s noncomplianee with certain medications, but did not observe any other medical abnormalities.

¶ 9. Investigators Bill Ellis and Stephanie Huddleston interrogated Singleton following his medical evaluation. Singleton remained talkative and relaxed during the questioning. At no point did Singleton indicate he felt ill, ask for the interrogation to stop, or state that he wanted an attorney present.

¶ 10. Singleton continued to deny all allegations against him until the investigators played the recorded phone conversation between Singleton and Daniel. After hearing the recording, Singleton confirmed the phone number Daniel called was his and the man on the recording sounded similar to him. Singleton eventually admitted the allegations made against him.

¶ 11. Prior to his trial, Singleton filed a motion to suppress his custodial statement and a motion to sever certain counts in the indictment. On October 31, 2013, the trial court held evidentiary hearings and ultimately denied both motions.

¶ 12. Singleton was tried on November 18 and 19, 2013. The jury returned a verdict of guilty on all eighteen counts. On November 21, 2013, the trial court sentenced Singleton to serve thirty years in custody of the Mississippi Department of Corrections and denied Singleton’s motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. Singleton now appeals.

ANALYSIS

1. Whether the trial court erred in denying Singleton’s motion to sever the charges for possession of child pornography from the charges for sexual battery and gratification of lust.

¶ 13. Singleton argues that the trial court erred in the denial of his motion to sever certain counts in the indictment. Specifically, Singleton contends that the charges for possession of child pornography should have been severed from the charges for sexual battery and gratification of lust. He argues that it was error to conclude that the time period between the acts was insignificant because the State could not prove the exact time when the pictures were taken. Due to this uncertainty, Singleton asserts the photographs could neither serve as evidence in the non-pornographic counts, nor could all the counts be considered as intertwined.

¶ 14. This Court reviews a trial court’s denial of a motion to sever a multi-count indictment for abuse of discretion. Harper v. State, 102 So.3d 1154, 1158 (¶ 9) (Miss.Ct.App.2011) (citing Rushing v. State, 911 So.2d 526, 532 (¶ 12) (Miss.2005)). The relevant statute for a multi-count indictment states:

Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.

Miss.Code Ann. § 99-7-2(1) (Rev. 2007).

¶ 15. “When á motion to sever is made, the State bears [the] burden of making out a prima facie case showing the offenses charged are within the language of the statute.” Harper, 102 So.3d at 1158 (¶ 9) (citing Corley v. State, 584 So.2d 769, 772 (Miss.1991)). “If the State meets its initial burden, the defendant may thereafter rebut the State’s case by showing the ‘offenses were separate and distinct acts or transactions.’ ” Rushing, 911 So.2d at 533 (¶ 14) (quoting Corley, 584 So.2d at 772).

¶ 16. To comply with the statute, the trial court must conduct a hearing to determine whether or not to sever the counts. Golden v. State, 968 So.2d 378, 382 (¶ 12) (Miss.2007). If the trial court holds such a hearing, this Court gives deference to the trial court’s findings, unless an abuse of discretion occurred. Broderick v. State, 878 So.2d 103, 105 (¶ 6) (Miss.Ct.App.2003) (citing Ott v. State, 722 So.2d 576, 579 (¶ 15) (Miss.1998)).

¶ 17. The Mississippi- Supreme Court outlined three criteria a trial court must consider during a hearing on a motion to sever: “(1) whether the time period between the occurrences is insignificant; (2) whether the evidence proving each count would be admissible to prove each of the other counts; [and] (3) ... whether the crimes are interwoven.” Stribling v. State, 81 So.3d 1155, 1162 (¶ 29) (Miss.Ct.App.2011) (citing Rushing, 911 So.2d at 533 (¶ 14)).

¶ 18. At his hearing, Singleton sought to sever the possession-of-child-pornography counts from the sexual-battery and gratification-of-lust counts. Singleton contended that the photographs allegedly depicting child pornography lacked date and time stamps. Thus, Singleton argued, the State could not prove Singleton took the photographs contemporaneously to the alleged occurrences of abuse.

¶ 19. The trial court evaluated the evidence proffered at the hearing under the Corley standards and stated:

[T]he Court should consider whether the time period between occurrences is insignificant, which the Court finds it is in this matter. Whether evidence proved in each count would be admissible to prove each of the other counts, ... and then three [sic] whether the crimes are interwoven. The Court finds they’re interwoven[;] this is a motion to sever for a separate trial on this issue[;] the Court finds that these are alleged pictures of the victim, of the alleged victim, and therefore I’m going to deny the motion to sever.

Thus, the trial court found the photographs and allegations of abuse met the test for a proper multi-count indictment set forth in Corley.

¶ 20. The counts in the indictment spanned a period from around March 2005 to December 2012, approximately seven years. Through testimony by Daniel and the investigators, the State proffered a likely time period for the photographs of only one to two years, beginning from 2005 until about 2007, although the exact time period remained unknown.

¶21. In several cases, the Mississippi Supreme Court has upheld trial court decisions that found several months or even years to be insignificant periods of time to compel the severance of multi-count indictments. Easley v. State, 46 So.3d 345, 347 (¶ 12) (Miss.2010) (no reversible error when the trial court did not sever four counts involving three different victims over the course of four years); Rushing, 911 So.2d at 536 (¶ 17) (five months during which three counts occurred was an insignificant amount of time); Eakes v. State, 665 So.2d 852, 861-62 (Miss.1995) (similar acts with the same victim over a five-month period an insignificant amount of time); Allman v. State, 571 So.2d 244, 249 (Miss.1990) (similar acts against the same victim over nine months part of a common scheme).

¶ 22. Here, the trial court determined that similar acts with the same victim over several years established a common scheme or plan. In Broderick, this Court affirmed a trial court’s finding that similar acts with two victims over a two-year period comprised a common scheme. Broderick, 878 So.2d at 105 (¶ 7-8). While a period of up to seven years is considerably longer than the occurrences in other cases, the time period remains insignificant unless the trial court committed an abuse of discretion.

¶ 23. To identify an abuse of discretion, this Court “first determines whether the trial court ‘applied the correct legal standard.’ ” Greater Canton Ford Mercury, Inc. v. Lane, 997 So.2d 198, 202 (¶ 12) (Miss.2008) (quoting Burkett v. Burkett, 537 So.2d 443, 446 (Miss.1989)). This Court then must decide if the trial court’s holding was one of the possible reasonable decisions the court could have reached. Id.

¶ 24. In denying Singleton’s motion to sever, the trial court used the proper legal standard to reach a reasonable conclusion. The trial court considered the factors of similar conduct, the same victim, and the time period to find that all of Singleton’s acts constituted a common scheme or plan. The trial court, therefore, did not abuse its discretion in denying Singleton’s motion to sever. This issue is without merit.

2. Whether the trial court erred in the admission of Exhibit 5.

¶ 25. Next, Singleton contends the trial court improperly admitted Exhibit 5 as character evidence under Mississippi Rule of Evidence 404(b). Further, Singleton argues the prejudicial nature of the exhibit outweighed its probative value under Mississippi Rule of Evidenée 403. We find that Singleton failed to properly preserve this issue for appeal. Thus, this Court is procedurally barred from reviewing the issue.

¶ 26. To preserve an issue for appellate review, “a timely objection stating the specific ground of objection is required under [Mississippi' Rule of Evidence] 103(a) if error is to be predicated upon a ruling which admits evidence.” Dupuis v. State, 872 So.2d 724, 728 (¶ 17) (Miss.Ct.App.2004) (citations omitted). “It has been held consistently that the failure to make a contemporaneous objection at trial constitutes a waiver of any error subsequently assigned [on appeal].” Moawad v. State, 531 So.2d 632, 634 (Miss.1988) (citations omitted).

¶ 27. At trial, Singleton failed to object to the admission of Exhibit 5. When the State introduced Exhibit 5 for admission into evidence, Singleton’s counsel and the trial court exchanged the following:

COURT: Any objection, Mr. Walker?
DEFENSE COUNSEL: Judge, I don’t object as to what they demonstrate, but I cannot concede that Mr. Singleton took the pictures.
COURT: So what’s the basis of your objection?
DEFENSE COUNSEL: Judge, you know, I can’t argue that they accurately and truly depict what’s shown in the pictures, so I don’t have a basis to object on that. So I guess in summary I do not have an objection.

(Emphasis added).

¶ 28. Further, when the State sought to admit the exhibit into evidence, the trial court asked if Singleton objected. Singleton’s counsel replied, “No, sir, Your Hon- or,” and the exhibit was entered into evidence without objection. Singleton neither objected at trial nor raised the issue prior to this appeal. Therefore, Singleton failed to properly preserve this issue for appeal. This issue is without merit, as it is procedurally barred.

3. Whether the trial court erred in denying Singleton’s motion to suppress his custodial statement.

¶ 29. Singleton argues that it was error for the trial court to deny his motion to suppress his custodial statement. Singleton challenges the validity of his confession due to his altered mental state from his lack of medication and certain religious references made during his interrogation, both of which he argues impeded his ability to give an accurate and voluntary statement.

¶ 80. “Determining whether a confession is admissible is a finding of fact which is not disturbed unless the trial court applied an incorrect legal standard, committed manifest error, or the decision was contrary to the overwhelming weight of the evidence.” Thorson v. State, 895 So.2d 85, 115 (¶ 73) (Miss.2004) (quoting Lee v. State, 631 So.2d 824, 826 (Miss.1994)).

¶ 31. “This Court has held that ‘[wjhen a criminal defendant objects to the admission of his confession, arguing it was involuntary, the trial court must conduct a hearing outside the presence of the jury. At the hearing, the burden is on the State to prove voluntariness beyond a reasonable doubt.’ ” Kleckner v. State, 109 So.3d 1072, 1081 (¶ 18) (Miss.Ct.App.2012) (quoting Pinkston v. State, 50 So.3d 1027, 1029 (¶ 8) (Miss.Ct.App.2010)).

¶ 32. When a trial court inquires into the voluntariness of a confession, the trial court, as the fact-finder, must “ascertain, under the totality of the circumstances and beyond a reasonable doubt, that the defendant’s statement was freely and voluntarily given....” Chim v. State, 972 So.2d 601, 603 (¶ 9) (Miss.2008) (quoting Baldwin v. State, 757 So.2d 227, 234-35 (¶ 8) (Miss.2000)).

¶ 33. In evaluating the totality of the circumstances, the trial court should consider “the defendant’s experience and familiarity with the criminal justice system, intellectual capacity, educational background, degree of literacy, emotional state and any mental disease or other defect.” Brown v. State, 839 So.2d 597, 600 (¶ 10) (Miss.Ct.App.2003) (citing Holland v. State, 587 So.2d 848, 860 (Miss.1991)).

¶ 34. For a valid confession, the trial court must determine if the defendant voluntarily, knowingly, and intelligently waived his rights to counsel and against self-incrimination. Chim, 972 So.2d at 603 (¶ 7) (citing Miranda v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (mandating that the custodian read the accused his or her right to remain silent and right to counsel prior to an interrogation)).

¶ 35. A voluntary waiver of one’s Miranda rights is one made with “free and deliberate choice rather than intimidation, coercion, or deception.” Id. at (¶8) (quoting Coverson v. State, 617 So.2d 642, 647 (Miss.1993)). Further, a waiver is intelligently and knowingly made if the defendant has a “full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Id. (citations omitted).

¶ 36. Investigator Huddleston testified that Singleton was read his Miranda rights and was afforded the opportunity to read and sign a waiver of his rights. Investigator Huddleston further testified that Singleton' appeared to understand his rights, did not ask any questions, and voluntarily signed the waiver. Singleton, however, testified he did not remember signing a waiver, even though he conceded the signature on the waiver was his.

¶ 37. Regardless, Singleton contended that he did not voluntarily give a self-incriminating statement. At the hearing on his motion to suppress andv at trial, Singleton asserted two bases for the alleged involuntariness of his statement: (1) the use of the phrase “come to Jesus” by one of the investigators exploited his religious beliefs and intimidated him into confessing, and (2) the deprivation of medication for his high blood pressure, COPD, and heart disease placed him in a confused and “foggy state” during the portion of the interrogation when he confessed.

A. Religious Reference

¶ 38. Singleton asserts that his confession resulted from pressure and intimidation from the investigators. Singleton testified that Investigators Ellis and Huddleston “play[ed] good cop and bad cop,” which led to a feeling of intimidation. Singleton primarily contends, however, Investigator Ellis coerced Singleton into confessing when he made the remark that it was time for Singleton to “come to Jesus.”

¶ 39. Singleton, a preacher for approximately fifty-four years, argues that Investigator Ellis took advantage of his religious beliefs by using Jesus to elicit a confession. The United States Supreme Court has held “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary* within the meaning of the Due Process Clause of the Fourteenth Amendment.” Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

¶ 40. The Connelly Court further held “the Fifth Amendment privilege [against self-incrimination] is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’ ” Id. at 170, 107 S.Ct. 515 (quoting Oregon v. Elstad, 470 U.S. 298, 305, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985)). In fact, the Supreme Court has found that the use of religious references does not automatically render a confession involuntary. Berghuis v. Thompkins, 560 U.S. 370, 386, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) (religious line of questioning during interrogation did not amount to coercion and did not render confession involuntary).

¶ 4Í. In this instance, Investigator Ellis told Singleton that it was “time to come to Jesus” after the investigators played the tape-recorded conversation between Singleton and Daniel, and Singleton continued to deny his involvement with Daniel. Investigator Ellis testified his use of the phrase was merely to get Singleton to tell the truth in light of the incriminating evidence.

¶ 42. The Mississippi Supreme Court held that “[a] mere exhortation to tell the truth is not an improper inducement that will result in an inadmissible confession.” Harden v. State, 59 So.3d 594, 605 (¶ 26) (Miss.2011) (citing Ruffin v. State, 992 So.2d 1165, 1172 (¶ 20) (Miss.2008)). While Singleton stated he found the remark offensive, Investigator Ellis testified he did! not use any threatening or intimidating language or tone that would constitute coercion. This inducement to tell the truth without more does not rise to the level of coercion. Thus, the religious reference did not render Singleton’s statement involuntary.

B. Singleton’s Unmedicated State

¶ 43. Singleton further contends he lacked the proper mental state to confess due to a deficiency in his medication. Singleton testified that, at the time- of his interrogation, he took approximately half of his medication because he could not afford the other medications. Singleton testified he ran out of the medication nearly ten days prior to his arrest. Nevertheless, Singleton maintains his unmedicated state affected him during his confession.

¶ 44. Courts have held that the mental condition of the defendant does not per se render a confession involuntary, but mental state must be considered within the totality of the circumstances. Kircher v. State, 753 So.2d 1017, 1026 (¶37) (Miss.1999) (affirming the trial court’s finding that a defendant’s confession while in the hospital and medicated was voluntary). Further, “[i]ntoxication or sickness does not automatically render a confession involuntary. The admissibility of a confession depends on the degree of intoxication.” Id. (quoting Johnson v. State, 511 So.2d 1360, 1365 (Miss.1987)).

¶45. At the hearing, the investigators testified to Singleton’s educational background, literacy level, emotional/mental state, and criminal history, which showed his familiarity with the justice system. Singleton received a bachelor’s degree from a university, worked as a test grader at a school prior to his arrest, appeared relaxed and not emotionally strained, and had a previous unrelated arrest.

¶ 46. Investigators Huddleston and Ellis both testified that Singleton did not appear confused or in any altered mental state during the entirety of the interrogation. Both stated Singleton gave detailed descriptions of certain geographic areas and freely spoke during the majority of the interrogation. At no time did Singleton ask the interrogation to stop due to illness or ask for medical assistance.

¶ 47. Singleton fails to demonstrate how his lack of medication led to an intoxicated or sickened state that adversely affected the voluntariness of his confession. Singleton merely claims the unmedicated state compromised the voluntariness of his confession, even though other portions of the interrogation occurred without incident. After considering the totality of the circumstances, the trial court found the State met its burden in proving Singleton validly waived his rights and voluntarily confessed to the criminal allegations against him.

¶ 48. The trial court’s decision stands in the absence of the application of an incorrect legal standard, manifest error, or a decision contrary to the overwhelming weight of the evidence. The trial did not commit any of these errors. Therefore, this issue has no merit.

¶ 49. THE JUDGMENT OF THE TATE COUNTY CIRCUIT COURT OF CONVICTION OF COUNTS I AND V, GRATIFICATION OF LUST, AND SENTENCE OF FIVE YEARS ON EACH COUNT; COUNTS II, III, AND IV, SEXUAL BATTERY OF A CHILD UNDER FOURTEEN YEARS OF AGE, AND SENTENCE OF TWENTY YEARS ON EACH COUNT; COUNTS VI, VII, AND VIII, SEXUAL BATTERY OF A CHILD AT LEAST FOURTEEN BUT UNDER SIXTEEN YEARS OF AGE, AND SENTENCE OF TWENTY YEARS ON EACH COUNT; AND COUNTS IX, X, XI, XII, XIII, XIV, XV, XVI, XVII, AND XVIII, POSSESSION OF CHILD PORNOGRAPHY, AND SENTENCE OF TEN YEARS ON EACH COUNT, WITH THE SENTENCE IMPOSED IN COUNT IX TO RUN CONSECUTIVELY WITH SENTENCES IMPOSED IN COUNTS I THROUGH VIII, AND WITH THE SENTENCES IN ALL OTHER COUNTS TO RUN CONCURRENTLY WITH ONE ANOTHER, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CREDIT FOR 353 DAYS SERVED, AND PAYMENT OF $1,000 TO THE MISSISSIPPI CHILDREN’S TRUST FUND AND A $50,000 FINE FOR EACH OF COUNTS IX THROUGH XVIII, WITH $50,000 SUSPENDED FOR EACH OF COUNTS IX THROUGH XVIII, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

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

      . The name of the victim has been changed for confidentiality purposes.


text:
    David Camp PITTMAN a/k/a David Pittman a/k/a David C. Pittman, Appellant v. CITY OF STARKVILLE, Mississippi, Appellee.
    No. 2013-KM-00752-COA.
    Court of Appeals of Mississippi.
    Nov. 25, 2014.

      Rodney A. Ray, Columbus, attorney for appellant.
    Caroline Crawley Moore, attorney for appellee.
    Before LEE, C.J., ISHEE and JAMES, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In the Starkville Municipal Court, David Pittman entered a plea of no contest on January 13, 2013, to driving under the influence (DUI), first offense. He was found guilty by the municipal court, and subsequently appealed his conviction to the Oktibbeha County Circuit Court. Following a de novo trial, the circuit court also found Pittman guilty of DUI, first offense, and sentenced him to forty-eight hours in the county jail and ordered him to pay a fine of $750. Pittman now. appeals. Finding no error, we affirm the judgment of the circuit court.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On September 7, 2012, Officer Derrick Nelson of the Starkville Police Department was performing his regular patrol on South Nash Street in Starkville, Mississippi. Just after midnight, he observed a vehicle positioned halfway in the street and halfway on the curb. He immediately pulled over to investigate.

¶ 3. Upon closer inspection, Officer Nelson noticed several garbage cans strewn about the adjacent yard. Based on the position of the vehicle, he believed that the garbage cans had just been hit by the vehicle. Officer Nelson made contact with Pittman and observed Pittman sitting in the driver’s seat with the key still in the ignition. Officer Nelson believed Pittman was very impaired by some kind of substance due to Pittman’s behavior and the smell of intoxicating substances, including both alcohol and marijuana.

¶ 4. Officer Nelson proceeded to help Pittman exit the car. According to Officer Nelson, Pittman was very off balance, staggering, and struggling to hold himself up on the car. Officer Nelson opened the tailgate on the vehicle to allow Pittman to sit down. Pittman informed Officer Nelson that he lived at the house, but several witnesses nearby denied this statement and, instead, asserted that Pittman had run into the garbage cans and into the yard. Officer Nelson attempted to ask Pittman what had happened, but stated that Pittman was so intoxicated that he was unable to hold a conversation. Officer Nelson then called Officer Brooke Mani-gold Carpenter, a DUI officer with the Starkville Police Department, for assistance.

¶ 5. When Officer Carpenter arrived, she observed Pittman sitting on the tailgate of the vehicle talking with Officer Nelson. Officer Carpenter noticed the vehicle was positioned on the curb with several garbage cans around the front bumper. Officer Nelson informed Officer Carpenter of the circumstances, and then she started talking -with Pittman. Although Pittman denied having consumed any alcoholic beverages, Officer Carpenter noticed his slurred speech, glassy eyes, and a strong odor of an intoxicating beverage coming from his breath. She also noticed a strong odor of unburnt marijuana. Officer Nelson then performed a search, but no marijuana was found.

¶ 6. Officer Carpenter asked Pittman to perform field sobriety tests and a preliminary breath test, but he refused. Based on the classic signs of intoxication that both she and Officer Nelson observed, Officer Carpenter placed Pittman under arrest. As Pittman made his way to the patrol car, Officer Carpenter stated that Pittman relied on her for support because he was very unsteady on his feet.

¶ 7. At the police station, Pittman refused to submit to an Intoxilyzer blood-alcohol test and continued to exhibit signs of intoxication. Officer Carpenter testified, that Pittman was upset but unaware of his surroundings and the circumstances involving his arrest. She also stated that he continued to need physical support.

118. On January 8, 2013, in the municipal court, Pittman entered a plea of no contest to DUI, first offense. Subsequently, the municipal court found Pittman guilty. Pittman appealed the conviction to the circuit court, which held a trial de novo on April 15, 2013. Officer Nelson and Officer Carpenter testified on behalf of the City. At the close of the City’s case-in-chief, Pittman moved for a directed verdict, which was denied. The defense then rested. Subsequently, Pittman was convicted of DUI, first offense, and sentenced to forty-eight hours suspended in the county jail and ordered to pay a fine of $750. Aggrieved, Pittman now appeals.

STANDARD OF REVIEW

¶ 9. “The standard of review for a judgment entered following a bench trial is well settled. In a bench trial, the trial judge is ‘the jury’ for all purposes of resolving issues of fact.” Sendelweck v. State, 101 So.3d 734, 738-39 (¶ 19) (Miss.2012). “The Mississippi Supreme Court has stated that: for review of the findings of a trial judge sitting without a jury, the appellate court will reverse only where the findings of the trial judge are manifestly erroneous or clearly wrong.” Id. at 739 (¶ 19) (internal citations omitted).

DISCUSSION

¶ 10. On appeal, Pittman argues that the evidence was insufficient to support his conviction of common-law DUI pursuant to Mississippi Code Annotated section 63—11—30(1)(a) (Rev. 2013). In order for the evidence to be found sufficient to sustain a conviction, the evidence 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[.]” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). This Court will reverse a conviction only if the evidence “point[s] in favor of the defendant on any element of the offense with sufficient force that [a] reasonable [fact-finder] 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)).

¶ 11. Section 63-11-30(1)(a) makes it “unlawful for any person to drive or otherwise operate a vehicle within this state who is under the influence of intoxicating liquor[.]” Section 63—11—30(1)(a) is often referred to as “common[-]law DUI.” Ellis v. State, 77 So.3d 1119, 1126 (¶ 30) (Miss.Ct.App.2011) (citing Gilpatrick v. State, 991 So.2d 130, 133 (1118) (Miss.2008)). “Common[-]law DUI is proven when a defendant’s blood[-]alcohol results are unavailable or the defendant’s [blood-alcohol content] tests under the legal limit, but there is sufficient evidence that the defendant operated a vehicle under circumstances indicating his ability to operate the vehicle was impaired by the consumption of alcohol.” Id.

¶ 12. Pittman asserts that the City failed to prove the elements of common-law DUI. He contends that the testimony presented at trial failed to establish that he was driving or operating a vehicle. He argues that neither Officer Nelson or Officer Carpenter saw him move the vehicle, and that the officers only relied upon statements of witnesses that were not called to testify at trial. As such, he asserts that the City failed to prove beyond a reasonable doubt the element that he was driving or operating the vehicle.

¶ 13. This Court has found that in order to establish that a defendant was driving or operating a vehicle, the following must be shown:

[T]hat the vehicle at least be capable of being moved by the defendant, whether the accused was then in the act of causing it to move or not. Both the accused and the vehicle must have a present ability to cause the hazards against which this statute attempts to protect. That hazard is a moving vehicle with an intoxicated person in control.

Lewis v. State, 831 So.2d 553, 557 (¶ 11) (Miss.Ct.App.2002). Further, “a person may be arrested, tried, and convicted of operating a motor vehicle while under the influence of an intoxicating liquor even if there is no eyewitness presented who viewed the defendant operating the vehicle, provided there is sufficient evidence.” Holloway v. State, 860 So.2d 1244, 1246-47 (¶ 12) (Miss.Ct.App.2003) (citations omitted). “Reasonable doubt need not be removed about whether the defendant had actually driven the vehicle prior to his discovery.” Id. (citations omitted).

¶ 14. The position of the vehicle and the garbage cans in the yard were the first things that alerted Officer Nelson to stop and investigate. He arrived on the scene and witnessed Pittman sitting in the driver’s seat of the vehicle with the key in the ignition. Although Officer Nelson did not watch Pittman drive the vehicle, Pittman was in a position where he was capable of moving the vehicle. At all times during the stop, both officers testified that Pittman was unable to walk, talk, or stand without extreme difficulty. Both officers also stated that they smelled an intoxicating substance when they encountered Pittman. As such, we find that the City proved that Pittman operated the vehicle within the definition provided by the statute. Further, we find that the City proved beyond a reasonable doubt that Pittman was guilty of common-law DUI. As such, we affirm the circuit court’s judgment.

¶ 15. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF FORTY-EIGHT HOURS SUSPENDED IN THE CUSTODY OF OKTIBBEHA COUNTY AND TO PAY A FINE OF $750 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Patricia ELLIOTT, Appellant v. FIRST SECURITY BANK, Appellee.
    No. 2013-CA-00956-COA.
    Court of Appeals of Mississippi.
    Signed Nov. 25, 2014.

      Keith M. Alexander, Southaven, attorney for appellant.
    William Polk Thomas, attorney for ap-pellee.
    Before LEE, C.J., ISHEE and JAMES, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2011, Patricia Elliott sued First Security Bank (FSB) in the Panola County Circuit Court for a shoulder injury she suffered when she tripped and fell on a sidewalk in front of FSB. FSB eventually moved for summary judgment, which the circuit .court granted. On July 19, 2013, the circuit court entered a final judgment in favor of FSB pursuant to the grant of summary judgment. Aggrieved, Elliott now appeals. Finding no error, we affirm.

STATEMENT OF. FACTS AND PROCEDURAL HISTORY

¶ 2. On April 24, 2010, Elliott and her son went to downtown Como, Mississippi (the City), for dinner. When they could not find a parking spot in front of the restaurant where they intended to eat, Elliott’s son parked the car at FSB and they walked to the restaurant. Elliott had one whiskey drink before dinner. After dinner, at about 10:30 p.m., Elliott and her son walked back to the car. As Elliott was making her way to the passenger side of the car, she tripped on uneven pavement on the sidewalk and fell. The sidewalk is owned by the City, and FSB maintains an easement for the sidewalk.

¶ 3. After she fell, Elliott sought medical treatment at a local hospital. She was told she had injured her rotator cuff in her shoulder. She later had surgery to repair her rotator cuff and attended physical therapy for some time. Elliott asserts that the injury led to extensive medical bills and also led to her losing her job.

¶ 4. On April 19, 2011, she sued the City and FSB. Elliott argued that even though no mutual benefit was exchanged, she should be considered FSB’s invitee and was owed the duty of reasonable care. She argued that the City’s duty should be imputed to FSB because it owned an easement for the sidewalk. She settled with the City during mediation. However, FSB remained a party to the lawsuit.

¶ 5. FSB soon filed a motion for summary judgment, arguing that it owed no duty to Elliott. At the time the injury occurred, FSB was closed, Elliott was not using the ATM, and she was not conducting any business at FSB. The only reason Elliott was at FSB that night was because the car was parked there while she and her son ate dinner nearby. Hence, FSB argued Elliott was not its invitee. The circuit court concluded that because Elliott entered FSB’s property for her own convenience, pleasure, or benefit, and did not bestow any benefit or advantage to FSB, she was a licensee at the time she fell. Accordingly, the circuit court found that FSB only owed Elliott a duty not to willfully or wantonly injure her, and that no evidence was presented to indicate willful or wanton injury. Therefore, the circuit court granted FSB’s motion for summary judgment.

DISCUSSION

¶ 6. The grant or denial of a motion for summary judgment is reviewed de novo. Johnson v. Pace, 122 So.3d 66, 68 (¶ 7) (Miss.2013). “The standard by which we review the grant or denial of summary judgment is the same standard as is employed by the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure.” Almond v. Flying J Gas Co., 957 So.2d 437, 439 (¶ 5) (Miss.Ct.App.2007) (citation omitted). Summary judgment should be granted when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Owen v. Pringle, 621 So.2d 668, 670 (Miss.1993). When reviewing the grant or denial of a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing the motion. Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss.2004).

¶ 7. Elliott asserts that the circuit court incorrectly held that she was a licensee and, therefore, FSB only owed her a duty to refrain from willfully or wantonly injuring her. Elliott argues that she was an invitee because her status as an invitee of the City should have been imputed to FSB since it maintained an easement for the sidewalk.

¶ 8. It is well settled that Mississippi follows a traditional three-step analysis in determining whether the owner of a property is liable to an injured party in a premises-liability case. Leffler v. Sharp, 891 So.2d 152, 156 (¶ 10) (Miss.2004); Haggard v. Wal-Mart Stores Inc., 75 So.3d 1120, 1124 (¶ 9) (Miss.Ct.App.2011). This analysis includes the' following determinations: (1) whether the injured party was an invitee, licensee, or trespasser at the time she was injured; (2) what duty was owed by the defendant to the injured party; and (3) whether the defendant breach that duty. Id.

¶ 9. It is undisputed that Elliott was an invitee of the City at the time of the incident. She argues that the circuit court erred in its refusal to impute her status as the City’s invitee to FSB despite FSB’s easement for the sidewalk. However, in Corley v. Evans, 835 So.2d 30, 39 (¶ 28) (Miss.2003), the Mississippi Supreme Court demonstrated that an injured party’s status as an invitee, licensee, or trespasser should be analyzed separately as to each defendant. In Corley, James Evans and his daughter, Stacy Evans Hamrick, jointly owned property on which Stacy sponsored a crawfish boil and charged admission to her guests. Id. at 32 (¶ 4). James was not a sponsor of the crawfish boil and had nothing to do with the event, other than a brief attendance. Id. Scott Corley, one of the guests at the crawfish boil, was accidentally shot at the crawfish boil by an intoxicated friend of Stacy and James. Id. Thereafter, Corley sued Stacy and James for injuries and damages he suffered as a result of the shooting. Id.

¶ 10. In determining Stacy and James’s liability, the supreme court conducted a bifurcated analysis as to Corley’s relationship to each party as an invitee, licensee, or trespasser. The supreme court found that Corley was Stacy’s invitee because a mutual benefit was exchanged between the two. Id. at 37 (¶ 20). Nonetheless, since no mutual benefit existed between Corley and James, Corley was found to be James’s licensee. Id. at 39 (¶ 28). The supreme court recently reinforced its use of this bifurcated analysis in Cade v. Beard, 130 So.3d 77 (Miss.2014), where it held an injured party to be an invitee to one landowner and a licensee to the other based on the lack of a mutual benefit to one of the owners. Id. at 38 (¶ 24).

¶ 11. Likewise, in the case before us, the circuit court analyzed Elliott’s status as an invitee, licensee, or trespasser separately for the City and FSB. Elliott’s assertion that her status with regard to the City should be imputed equally to FSB is unfounded. A bifurcated analysis was proper. Accordingly, the next question is whether the circuit court’s classification of Elliott as a licensee of FSB was valid.

¶ 12. An invitee is one who “enters the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” Sharlow v. Raybourn, 135 So.3d 238, 241 (¶ 10) (Miss.Ct.App.2014) (quoting Corley, 835 So.2d at 37 (¶ 21)). Therefore, there must be a mutual benefit exchanged by the injured party and the landowner for his or her status to be classified as an invitee. Id. Conversely, a licensee is a person who “enters the property of another for his own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner....” Id.

¶ 13. The facts are undisputed in this case, allowing for classification of Elliot’s status with regard to FSB to be a question of law for the circuit judge to resolve, not a jury. See Leffler, 891 So.2d at 156 (¶ 10). No mutual benefit was exchanged between Elliott and FSB since Elliott was on the sidewalk for her own convenience and benefit, to the exclusion of any benefit for FSB. Elliott’s decision to park in FSB’s parking lot in order to eat at a nearby restaurant conferred no benefit to FSB. Hence, the circuit court was correct in finding that Elliott was a licensee because no benefit whatsoever was bestowed on FSB by Elliot’s presence on the premises.

¶ 14. The supreme court has held that when an injured party is classified as a licensee, “the defendant ] owe[s] no higher duty to [the injured party] than to refrain from willfully or wantonly injuring her.” Doe v. Jameson Inn Inc., 56 So.3d 549, 555 (¶ 17) (Miss.2011). To “constitute willful and wanton injury, something more than mere inadvertence or lack of attention is required.” Id. “There must be a more or less extreme departure from ordinary standards of care, and conduct must differ in quality, as well as in degree, from ordinary negligence involving a conscious disregard of a known serious danger.” Leffler, 891 So.2d at 159 (¶ 22) (citation omitted). Additionally, this Court has held that when a landowner does not know that the injured person was present on the property, he cannot be- found to have willfully or wantonly injured that person. Keith v. Peterson, 922 So.2d 4, 9-10 (¶ 17) (Miss.Ct.App.2005). As such, it is clear that FSB did not breach the duty of care it owed to Elliott.

¶ 15. The circuit court correctly determined that Elliott was a licensee of FSB and that FSB upheld its duty owed to Elliott. The grant of summary judgment in favor of FSB was proper. This issue is without merit.

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

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