text:
    John JONES, Appellant v. Jane JONES, Appellee.
    No. 2011-CA-01440-COA.
    Court of Appeals of Mississippi.
    April 30, 2013.
    Rehearing Denied Sept. 17, 2013.
    Certiorari Denied Jan. 23, 2014.

      Charles Eric Malouf, attorney for appellant.
    William Charles Bell, Ridgeland, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. John Jones challenges the fairness of the financial awards to his wife, Jane Jones, tied to their fault-based divorce. John’s primary dissatisfaction concerns the chancellor’s division of the marital estate. As John sees it, the chancellor should have placed more weight on the fact the marital estate was amassed almost solely through his family’s generosity and less emphasis on his actions that undoubtedly caused the end of the almost thirty-year marriage. But we find nothing unbalanced about the chancellor’s Ferguson analysis. The chancellor found John’s direct economic contributions, through his family, were equal to the indirect economic contributions by Jane, who also made significant contributions to the harmony and stability of them marriage and family. Because John was unequaled in his contribution to the destruction of that harmony and stability, the chancellor found equity dictated Jane receive a larger portion of the marital estate. Finding no abuse of discretion, we affirm the chancellor’s award of 62.5% of the marital estate to Jane.

¶ 2. But we reverse the award of “nominal” permanent alimony. Having found the property division was sufficient, the chancellor abused his discretion by nonetheless awarding alimony based on Jane’s possible future needs and John’s possible future income. Because there was no present basis for the award, we reverse and render the alimony award of $10 per month.

¶ 3. We also reverse the award of $18,250 for attorney’s fees and expert-witness expenses. While this is an issue “largely entrusted to the sound discretion of the trial court,” attorney’s fees should not be awarded unless the requesting party can establish an inability to pay. While Jane presented evidence that pre-divorce her expenses exceeded her income, the chancellor failed to consider Jane’s ability after the divorce and in light of the property division. Because we find the chancellor’s equitable division left Jane in a position to pay her attorney’s fees and expeYt-witness expenses, we reverse and render the award of $18,250.

Background Facts

¶ 4. The record in this case was sealed by the chancellor, due to outrageous and unsubstantiated claims John made during the contested phase of the divorce. Since John does not appeal the chancellor’s grant to Jane of a divorce based on John’s habitual cruel and inhuman treatment, we see no need to delve into the lurid factual allegations that led to John and Jane’s divorce.

¶ 5. John does, however, argue the chancellor improperly considered his marital fault when equitably dividing the marital estate. This estate was amassed during John and Jane’s twenty-eight-year -marriage, during which they enjoyed a financially comfortable lifestyle. In addition to various family businesses that either employed John or provided income, John also earned income as an attorney. Jane worked primarily in the home, taking care of the household and children.

¶ 6. After determining what assets belonged to the marital estate and their value, and taking into consideration the amount of debt owed on the assets, the chancellor awarded Jane 62.5% of the estate and John 37.5%. The chancellor applied the factors from Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994), to arrive at the division. Specifically, he found Jane’s contributions as homemaker were equivalent to John’s. The chancellor found neither dissipated assets. He also recognized John’s emotional ties to certain assets, especially real property in Scott County, stock in a local bank, and an ownership interest in a car dealership founded by John’s father and another family business.

¶ 7. But the chancellor also recognized John as the sole contributor to the end of the long marriage. Consequently, the chancellor found equity dictated Jane receive a larger portion of the marital assets, versus a fifty-fifty split. Specifically, the chancellor awarded Jane: $1,014 in cash, her personal vehicle, her retirement accounts, both her and John’s shares in the bank, six of John’s individual retirement accounts, and a condominium in Oxford, Mississippi, free and clear of all liens.

¶ 8. Because the total value of these assets were less than 62.5% of the marital estate, the chancellor also ordered John to pay Jane the remaining $187,226.77 of her property award in annual installments of $25,000. The chancellor explained the purpose of this cash award was to provide Jane her equitable share of the marital estate, while allowing John to keep the remaining marital assets, which included John’s family land and businesses. However, the chancellor granted Jane an equitable lien on these properties as security for the $187,226.77 award.

¶ 9. Specifically, the chancellor awarded John the ownership interest in the car dealership, the ownership interest in the other family business, the real property in Scott County, Mississippi, and a collection of Civil War memorabilia. The chancellor also ordered that John be solely responsible for his more than $466,715 in various debts, and Jane be solely responsible for her more than $14,886.67 in various debts.

¶ 10. The chancellor found the property division, which included the $25,000 annual payments, eliminated the need for alimony. But because the chancellor found Jane met the criteria for permanent — or periodic— alimony, he awarded her a “nominal” $10 per month in permanent alimony, in the event Jane’s need for alimony ever increased and John’s income and ability to pay also increased.

¶ 11. Finally, the chancellor found Jane did not have the ability to pay her attorney’s fees. The chancellor ordered John pay $14,000 towards her attorney’s fees, plus $4,250 toward the expert witness’s fee, for a total of $18,250.

¶ 12. John appeals the financial awards to Jane — (1) the 62.5%/37.5% split of the marital property in favor of Jane; (2) the award of “nominal” permanent alimony of $10 per month; and (3) the award of $18,250 in attorney’s and expert-witness fees.

Discussion

I. Equitable Distribution of Marital Property

¶ 13. In reviewing the chancellor’s equitable division, we employ the familiar manifest-error standard of review. See Vaughn v. Vaughn, 56 So.3d 1283, 1288 (¶ 17) (Miss.Ct.App.2011). “We will not disturb a chancellor’s factual findings unless the chancellor’s decision was manifestly wrong [or] clearly erroneous, or the chancellor applied an improper legal standard.” Id. (citing Wallace v. Wallace, 12 So.3d 572, 575 (¶ 12) (Miss.Ct.App.2009)).

¶ 14. Here, in ordering the equitable distribution of the Joneses’ marital property, the chancellor applied the correct legal standard, following the directive to “(1) classify the parties’ assets as marital or separate property, (2) determine the value of those assets, and (3) divide the marital estate equitably based upon the factors set forth in Ferguson.” Smith v. Smith, 90 So.3d 1259, 1267 (¶ 31) (Miss.Ct.App.2011).

A. Categorization of Assets

¶ 15. First, the chancellor determined what property was marital. The chancellor found, because John had commingled the assets given to him by his father, these assets were marital through the family-use doctrine. See Stewart v. Stewart, 864 So.2d 934, 937 (¶ 12) (Miss.2003) (“Separate property that has been ‘commingled with the joint marital estate’ also becomes marital property subject to equitable distribution.” (quoting Johnson v. Johnson, 650 So.2d 1281, 1286 (Miss.1994))); see also Rhodes v. Rhodes, 52 So.3d 430, 438 (¶ 26) (Miss.Ct.App.2011) (discussing family-use doctrine). John does not appeal the classification of these assets as marital. Instead, he argues the chancellor failed to recognize the source of these marital assets when applying the Ferguson factors— an argument we address under our review of the chancellor’s Ferguson analysis.

B. Valuation of Assets

¶ 16. The chancellor next determined the value of the marital estate. Factoring in the debts owed on marital assets, the chancellor valued the estate at $1,117,049.50. While John balks at the value assigned to several assets, John has failed to show how the record supports these valuations were manifestly wrong or clearly erroneous.

¶ 17. For example, John argues the chancellor erred by relying on Jane’s financial expert when assigning the value to one of the family businesses, an asset ultimately awarded to him. John asserts the expert’s valuation of the business was based on hearsay. But Mississippi Rule of Civil Procedure 703 permits “an expert’s opinion [to] be based off of inadmissible evidence, such as hearsay, if it is of a type reasonably relied upon by experts in the particular field.” Martin v. Miss. Transp. Comm’n, 953 So.2d 1163, 1167 (¶ 16) (Miss.Ct.App.2007). Here, the chancellor permitted the expert to testify about this asset after finding the expert used sound methodology and reasonably relied on the evidence available to reach his valuation. As John has not shown why the valuation was unreliable under Mississippi Rule of Civil Procedure 702 or even suggested what the proper value of the business would have been had correct methods been applied, we find no abuse of discretion in the chancellor’s reliance on the expert’s testimony.

¶ 18. John also asserts the chancellor erred by relying on John’s Rule 8.05 financial-declaration form to assign values to certain assets because John’s responses were merely “guesstimates.” See UCCR 8.05 (requiring in all domestic matters involving property disputes that each party provide a detailed written disclosure of his or her financial status). But as a licensed attorney, John knew, or should have known, that the chancellor could — and would — rely on the financial information he submitted to the court. “A Rule 8.05 statement is a mandatory filing with the chancery court that provides that court with accurate financial information to assist in its equitable distribution of the divorcing parties’ assets.” Trim v. Trim, 33 So.3d 471, 478 (¶¶ 16-17) (Miss.2010) (emphasis added) (holding that “failure to submit a Rule 8.05 statement without just cause constitutes contempt of court” and “a party’s intentional filing of a substantially false Rule 8.05 financial statement constitutes a fraud on the court”). Consequently, a chancellor’s valuation of marital assets “may be accomplished by adopting the values cited in the parties’ 8.05 financial disclosures[.]” Jenkins v. Jenkins, 67 So.3d 5, 13 (¶ 19) (Miss.Ct.App.2011) (quoting Horn v. Horn, 909 So.2d 1151, 1165 (¶ 49) (Miss.Ct.App.2005). So to the extent the chancellor relied on values assigned on the Rule 8.05 form, we find it was within the chancellor’s discretion to do so. See Mauldin v. Mauldin, 107 So.3d 176, 179 (¶¶ 14-15) (Miss.Ct.App.2013) (finding no error in the chancellor’s reliance on values assigned in spouses’ Rule 8.05 forms).

¶ 19. And to the extent the chancellor viewed other information on John’s Rule 8.05 with skepticism, we find such credibility findings were also within the chancellor’s discretion as fact-finder. See Holley v. Holley, 969 So.2d 842, 844 (¶ 8) (Miss.2007) (“[T]he chancellor is the trier of fact and determines the weight and credibility of the evidence.”). The record reflects John assigned drastically higher valuations for Jones-family assets prior to Jane’s filing for divorce in comparison to when John realized these assets would become part of the marital estate to be divided.

¶ 20. Thus, it appears John wants to have it both ways — arguing his valuations were correct and should have been applied when they benefitted him but merely “guesstimates” when they did not. As it was for the chancellor to weigh the credibility of John’s information, we will not disturb the values the chancellor assigned — especially when John fails to show why they were incorrect.

C. Division of Marital Assets

¶ 21. Finally, the chancellor went through the Ferguson factors to determine how the marital estate should be equitably divided. These eight factors are:

1. Substantial contribution to the accumulation of the property[;]
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise[;]
8. The market value and the emotional value of the assets subject to distribution!!;]
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos' gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

Ferguson, 639 So.2d at 928.

¶ 22. John challenges the chancellor’s findings on almost every factor. But the focus of his argument hones in on the contribution factor.

1. Contribution

¶ 23. In considering each spouse’s contribution, Ferguson directs chancellors to weigh not only the “[d]ireet or indirect economic contribution to the acquisition of the property” but also the “[c]ontribution to the stability and harmony of the marital and family relationships.” Id. The chancellor found both spouses’ economic contributions were equal. But he found John’s destruction of the twenty-eight-year marital relationship weighed heavily against John. John challenges both aspects of the chancellor’s contribution findings.

¶ 24. Regarding economic contribution, John argues this factor instead favors him because it was his family’s generosity — through gifts and job opportunities — that led to the accumulation of the marital assets. Though acknowledging John’s contributions, the ehaneel-lor found applicable the presumption that “the contributions and efforts of the marital partners, whether economic, domestic or otherwise are of equal value.” Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994); see also Owen v. Owen, 798 So.2d 394, 399 (¶ 15) (Miss.2001) (holding “spouses are not prohibited from receiving a portion of marital assets acquired solely by the other spouse’s financial contributions if that non-cash contributing spouse has made alternative contributions to the marriage”). Because Jane significantly contributed by taking cai'e of the marital home, ensuring John’s domestic needs were met, and almost single-hand-edly raising their children, the chancellor determined John’s and Jane’s contributions were equal. We find no abuse of discretion in this finding.

¶ 25. Regarding contribution to the stability and harmony of the marriage and family, John argues the chancellor unfairly penalized him for his actions that led to the Jane being granted a fault-based divorce.

¶ 26. Marital fault is “relevant to the chancellor’s consideration of equitable distribution [when] it impact[s] upon the harmony and stability of the marriage.” See Singley v. Singley, 846 So.2d 1004, 1008 (¶ 10) (Miss.2002). In Singley, the Mississippi Supreme Court held it was error to divide the marital assets evenly, because such a division overlooked the wife’s actions that “significantly impacted and burdened the stability and harmony of the marriage.” Id. at 1009 (¶ 13); see also Watson v. Watson, 882 So.2d 95, 108-09 (¶ 68) (Miss.2004) (holding that the chancellor, by dividing assets equally, “obviously ignored conduct” that had “impacted and burdened the stability and harmony of the marriage” (quoting Singley, 846 So.2d at 1009 (¶ 13))). Similarly, in Sullivan v. Sullivan, 990 So.2d 783, 788 (¶ 18) (Miss.Ct.App.2008), this court rejected the argument that the chancellor “placed too much emphasis” on marital fault. Because the wife’s conduct “placed a tremendous burden on the marriage,” ultimately resulting in her leaving the marriage, we found “no error with the chancellor’s decision to place great emphasis” on the misconduct when awarding the husband two thirds of the marital estate. Id. at (¶ 19).

¶ 27. Here, the chancellor found John’s actions had such a negative impact on the harmony and stability of the marriage that the chancellor ordered the record be sealed to stave off any further damage. Thus, we find no error in the chancellor determining John’s misconduct warranted that Jane receive a larger portion of the estate. In fact, Singley, Watson, and Sullivan indicate it would have been an abuse of discretion had the chancellor ignored the pervasive effect of John’s actions on the marriage and divided the estate equally-

¶ 28. John asserts he should not suffer the financial consequences of his actions because they were not willful, but instead stemmed from mental illness. While it was mentioned that John may be mentally ill, John did not seek to prove any mental illness at trial as a defense to Jane’s allegations of habitual cruel and inhuman treatment. See McIntosh v. McIntosh, 151 Miss. 78, 81, 117 So. 352, 353 (1928) (holding that an insane person cannot.act cruelly and inhumanely for purposes of proving statutory grounds for divorce). Nor does he contest on appeal the other consequence of his actions — Jane’s receipt of a fault-based divorce.

¶ 29. Further, it is clear from the chancellor’s findings that his intention was not to “penalize” John but instead to keep from penalizing Jane, who had made extraordinary efforts to keep her marriage together. So stated positively, the chancellor found Jane was entitled to a greater portion because she had made a greater contribution. See Wells v. Wells, 800 So.2d 1239, 1243 (¶ 8) (Miss.Ct.App.2001) (affirming chancellor’s unequal division in favor of wife, which was based on finding that, “although both parties contributed substantially to the accumulation of property, [the wife] clearly made a greater contribution to the stability and harmony of the marital and family relationship”). We cannot find this was an abuse of discretion.

2. Emotional Value of Assets

¶ 30. John also argues the chancellor ignored his emotional attachment to the-marital assets acquired through his family. But our review reveals that the chancellor did consider John’s emotional attachment to these assets. The very reason the chancellor ordered John to pay ' Jane $186,226.77 in cash was so that John could retain as much of the Jones-family assets as equity would allow, while still ensuring Jane received 62.5% of marital estate.

3. Value of Assets Not Subject to Distribution

¶ 31. This factor requires chancellors to consider both spouses’ separate estates and how their nonmarital property may affect how the marital property is divided. See Deborah H. Bell, Bell on Mississippi Family Law § 6.08[2][c] (2005); see also Welch v. Welch, 755 So.2d 6, 9 (¶ 19) (Miss.Ct.App.1999). In attacking the chancellor’s application of this factor, John does not argue the chancellor failed to consider his and Jane’s nonmarital property. Instead, he merely rephrases his contribution argument — that he should be “credited” with having brought more assets into the marital estate than Jane. The chancellor correctly found that the gifts from John’s family had been converted into marital property through the family-use doctrine. See Stewart, 864 So.2d at 937 (¶ 12) (“Separate property that has been ‘commingled with the joint marital estate’ ... becomes marital property subject to equitable distribution.” (quoting Johnson, 650 So.2d at 1286)); see also Rhodes, 52 So.3d at 438 (¶ 26) (discussing family-use doctrine). Thus, John fails to show what nonmarital assets the chancellor failed to consider.

A Extent to Which Property Division May Eliminate Need for Alimony

¶ 32. Under this factor, the chancellor must consider “[t]he extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties.” Ferguson, 639 So.2d at 928. Here, the chancellor properly balanced this factor against the emotional-value-of-the-assets factor, finding it was better to award Jane a lump-sum of $187,226.77 cash, to be satisfied in periodic payments of $25,000 per year and secured by a lien on assets awarded to John, than award any more Jones-family assets to Jane. So the chancellor actually weighed this factor in John’s favor, finding his emotional attachment to certain assets outweighed any consideration of eliminating the $187,226.77 cash award — a hybrid of lump-sum alimony and property distribution — though awarding Jane more assets.

5. Financial Needs of Parties

¶ 33. John argues the chancellor overestimated his financial security, while underestimating Jane’s. Throughout his brief, John makes general references to his diminished financial state and loss of ability to earn an income and service his debts. But he fails to show how the overall record proves the chancellor’s findings regarding his financial security were manifestly wrong or clearly erroneous. What the record does show is that the chancellor specifically found John had played “fast and loose -with the truth” regarding his current income and expenses. Cf. Clark v. Clark, 754 So.2d 450, 459 (¶¶ 53-54) (Miss.1999) (finding that chancellor, when awarding child support, did not error in imputing greater income to husband based on finding that husband failed to fully disclose his assets and income). And in his brief, John asserts he merely made “guesstimates” about his income and expenses on his Rule 8.05 form. Thus, the chancellor’s findings regarding John’s income and expenses largely came down to an issue of credibility. See Holley, 969 So.2d at 844 (¶ 8). As fact-finder, the chancellor determined John, as a licensed attorney and business owner, had a greater ability to earn an income than Jane. We see no manifest error in this finding.

6. Any Other Equitable Factor

¶ 34. John uses this final factor to make a plea that the property division was not fair. Indeed, “fairness is the prevailing guideline” when dividing marital property. Ferguson, 639 So.2d at 929. But a division does not have to be equal in order to be equitable. Lowrey v. Lowrey, 25 So.3d 274, 285 (¶ 26) (Miss.2009) (citing Chamblee v. Chamblee, 637 So.2d 850, 863-64 (Miss.1994)). In fact, fairness may direct an unequal division. E.g., Singley, 846 So.2d at 1008-09 (¶¶ 10-13). Here, the chancellor properly classified and valued the marital assets. He then correctly applied the Ferguson factors, basing his findings on substantial evidence from the record. And he concluded an equitable division of the marital estate would provide Jane 62.5% of the marital assets, with $187,226.77 of her property division to be awarded as lump-sum alimony so John could be awarded more of the Jones-family assets. As the chancellor correctly applied the law and supported his factual findings, we affirm the division of the marital property 62.5%/37.5% in Jane’s favor.

II. “Nominal ” Permanent Alimony

¶ 35. However, we do find manifest error with the award of “nominal” permanent — or periodic — alimony in the amount of $10 per month. See Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993) (reviewing alimony awards for manifest error). We note the chancellor correctly identified and applied the Armstrong factors. See id. But he did so after acknowledging he had made sufficient provision for Jane through the equitable division of the property so that permanent alimony was not needed. Alimony should only be considered if the property division leaves one spouse in a deficit. Johnson, 650 So.2d at 1287. “If there are sufficient assets to provide for both parties, then there is no more to be done.” Carter v. Carter, 98 So.3d 1109, 1112 (¶ 8) (Miss.Ct.App.2012) (citing Johnson, 650 So.2d at 1287).

¶ 36. By referring to the award as “nominal” alimony, it does not appear that the chancellor was trying to address an actual deficit in the property award. Rather, he admits he was simply leaving the door open in case future events prove Jane has a need and John has an ability to pay. Such a contingency plan, while well-meaning, simply is not supported by our law. Alimony is to be considered as a remedy to an actual insufficiency in the marital assets, not as a contingency for a possible insufficiency in the future. Because the chancellor found the division of marital property left no need for alimony, we find it was error for the chancellor to nonetheless award “nominal” alimony. We reverse and render the award of $10 per month in permanent alimony award.

III. Attorney’s and Expert-Witness Fees

¶ 37. We also reverse the award of $18,250 for attorney’s fees and expert-witness expenses. “The question of attorney’s fees in a divorce action is a matter largely entrusted to the sound discretion of the trial court.” Watson v. Watson, 724 So.2d 350, 356-57 (¶ 29) (Miss.1998) (quoting Ferguson, 639 So.2d at 937). But when “a party is financially able to pay her attorney, an award of attorney’s fees is not appropriate.” Id.

¶ 38. In Watson, though “reluctant to disturb a chancellor’s discretionary determination whether or not to award attorney[’s] fees,” the supreme court reversed and rendered an award of attorney’s fees because, “with respect to the financial position of the parties after the divorce decree, it [was] evident that [the wife was] financially able to pay for her own attorney’s fees.” Id. at 357 (¶ 30) (emphasis added); see also Pacheco v. Pacheco, 770 So.2d 1007, 1012-13 (¶¶ 26-28) (Miss.Ct.App.2000) (affirming denial of attorney’s fees because wife’s property award enabled her to pay her attorney’s fees). Here, in finding Jane unable to pay, the chancellor did not consider Jane’s financial position in light of the divorce decree and property division. Jane was awarded almost two hundred thousand dollars in cash, secured by a lien on John’s real property and businesses, a home in Oxford free and clear of any liens, and dividend-paying bank stock, as well as multiple retirement accounts. As in Watson, under the circumstances, we find the award of attorney’s fees and expert-witness expenses to be an abuse of discretion. We reverse and render this portion of the judgment.

¶ 39. THE JUDGMENT OF THE SCOTT COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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

      . The chancellor has sealed this case as confidential. The names of both parties, as well as other identifiers, have been changed to maintain confidentiality. See M.R.A.P. 48A.

      . Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994).

      . Id. at 937.

      . John does not challenge the tax-and-economic-consequences factor. And he makes a vacuous argument about the dissipation-of-the-assets factor we need not address.

      . The “[cjontribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets” should also be considered. Ferguson, 639 So.2d at 928.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Charles Anthony WEARY a/k/a Anthony Charles Weary a/k/a Charles Weary a/k/a Anthony Weary a/k/a Anthony C. Weary, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01760-COA.
    Court of Appeals of Mississippi.
    June 18, 2013.

      Charles Anthony Weary, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before GRIFFIS, P.J., CARLTON and FAIR, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Charles Anthony Weary appeals the Marion County Circuit Court’s dismissal of his motion for post-conviction relief (PCR). Finding no error, we affirm.

FACTS

¶2. On December 12, 2005, a Marion County grand jury indicted Weary for armed robbery under Mississippi Code Annotated section 97-3-79 (Rev.2006), and for theft of a motor vehicle under Mississippi Code Annotated section 97-17-42 (Supp.2012). Weary pled guilty to both charges, and on February 1, 2008, the circuit court sentenced Weary in open court to twelve years in the custody of the Mississippi Department of Corrections (MDOC) on the armed-robbery charge and a concurrent five years on the motor-vehicle charge. The record also shows that the oral pronouncement of the sentence contained no mention of restitution. However, in the subsequent judgment of conviction and written sentencing order, filed February 11, 2008, the court ordered Weary to pay $1,176.73 in restitution to Pizza Hut and $248 in restitution to Jessie Taylor.

¶ 3. Weary’s written order of conviction, filed February 11, 2008, reflects a ten-year sentence for the armed-robbery charge and a concurrent five-year sentence for the motor-vehicle charge and the restitution in dispute. Weary’s notice of criminal disposition, however, reflects a ten-year sentence for the armed-robbery charge, with five years suspended. The supplemental record contains a 2010 letter from Weary to a minister, seeking the minister’s assistance in requesting the trial court to clarify the conflict between Weary’s sentence set forth in the sentencing order filed February 11, 2008, and the five-year suspended sentence reflected in the criminal disposition. This letter from Weary fails to mention any issue as to the restitution at issue in this appeal. Moreover, the record contains no post-trial motions or other objections to the restitution ordered. Weary raised no objection or request for relief from the restitution until more than three years after his judgment of conviction and sentencing order; additionally, other than the letter to his minister, he raised no request for relief, in accordance with statute, from the conflict between the sentencing order, the oral pronouncement, and the commitment paper:

¶ 4. More than three years after the written order of conviction and sentence, Weary filed a PCR motion on September 12, 2011, claiming his sentence was ambiguous. After reviewing Weary’s motion, the circuit court summarily dismissed it under Mississippi Code Annotated section 99-39-11(2) (Supp.2012). Weary now appeals to this Court. On appeal, he claims that his sentence was ambiguous because of the conflict between his filed sentencing order and his criminal disposition and that the circuit court imposed an illegal sentence by ordering him to pay restitution to Taylor, who Weary contends lacks victim status. Finding Weary’s claims for relief from the ordered restitution waived, and finding no ambiguity in Weary’s written order of conviction, we affirm.

STANDARD OF REVIEW

¶ 5. In considering the dismissal of a PCR motion, we review the circuit court’s findings of fact for clear error. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). But when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999). See also Miss.Code Ann. § 99-39-3(2) (Rev.2007) (burden on petitioner to show claims are not procedurally barred); Powell v. State, 536 So.2d 13, 17 (Miss.1988) (error as to restitution waived by failure to object at sentencing hearing).

DISCUSSION

¶ 6. On appeal, we address whether Weary’s sentence is ambiguous because of the discrepancy between the following: the circuit court’s pronouncement of the sentence in open court, the written order of conviction, and the notice of criminal disposition. Weary argues such ambiguity exists because of the conflict between the written order and the criminal-disposition notice. A review of the supplemented record, however, reflects the additional conflict between the oral pronouncement of the sentence and the written order filed in this case with respect to the ordered restitution. Even though not raised by Weary, we acknowledge that the oral pronouncement transcribed on February 1, 2008, contained no order of restitution, but the written order filed on February 11, 2008, indeed included restitution. Case law and statutory, authority establishes a trial court’s authority to order restitution. See Miss.Code Ann. § 99-37-1; Butler v. State, 544 So.2d 816, 821 (Miss.1989); Powell, 536 So.2d at 17. The conflict raised by Weary pertains to that between the sentence set forth in the written sentencing order and the sentence reflected in the criminal disposition. The criminal-disposition notice provides for a ten-year sentence, with five years suspended, for the armed-robbery charge.

¶ 7. In its order summarily dismissing Weary’s PCR motion, in which Weary alleged an ambiguous sentence and illegal restitution, the circuit court determined that Weary’s claim amounted to a claim of an illegal sentence. Addressing Weary’s claim of an ambiguous sentence, the circuit court referenced the sentencing transcript, acknowledging that the transcript reflected the twelve-year sentence pronounced in open court. The circuit court also acknowledged that the written order of conviction sentenced Weary to a lesser sentence of ten years for the armed robbery charge and a concurrent five years for the motor-vehicle charge. In addressing the conflict, the circuit judge cited to Fuller v. State, 914 So.2d 1230, 1232 (¶ 4) (Miss.Ct.App.2005), where this Court determined which document controls a defendant’s sentence where a conflict exists between the circuit court’s sentencing order and the commitment paper. The Fuller Court held that the commitment paper did not constitute a judgment; therefore, the sentencing order in that case controlled. Id.

¶8. In the present case, the circuit judge ultimately held:

Weary received a [ten-]year sentence via the order of conviction, rather than the [twelve-]year sentence pronounced in open court and transcribed in the sentencing transcript. Since Weary received a more lenient sentence through this error in the order of conviction; i.e. [ten] years rather than [twelve] years, his sentence has not caused him “to endure an undue burden.” The court therefore finds that Weary is not entitled to any relief on his illegal sentence claim. Further, neither the sentencing transcript nor the order of conviction mentionfs] that either of his sentences were to include a “suspended” sentence [] provision; thus, this claim is likewise without merit.

¶ 9. As explained in Fuller, Weary’s notice of criminal disposition fails to constitute a judgment. Instead, the criminal-disposition notice serves as an administrative commitment form completed for the administrative benefit of the MDOC. See id. (“A commitment paper is not a judgment.”). Additionally, we have recognized that “[i]t is well-settled law in Mississippi that a written order prevails over a conflicting oral pronouncement.” Jones v. State, 70 So.3d 255, 259 (¶ 12) (Miss.Ct.App.2011). We thus find no error in circuit judge’s denial of relief on Weary’s assertion of ambiguity in his sentence. Precedent reflects that Weary’s claim that the criminal-disposition notice controls lacks merit.

¶ 10. Weary next contends that his sentence is illegal because the circuit court ordered him to pay restitution to Taylor, who Weary claims is not a victim of his indicted crimes. We acknowledge that Mississippi Code Annotated section 99-37-3 (Rev.2007) authorizes a court to order a defendant to pay restitution only to “victims.” Weary asserts that his indictment for the charge of theft of a motor vehicle identified only Amanda Brunner as the owner. However, as part of Weary’s sentence, the circuit court ordered him to pay $250 in restitution to Taylor. Here, in dismissing Weary’s PCR motion, the record reflects that the circuit court found Taylor properly received restitution as a victim of Weary’s crime, even though the indictment failed to name Taylor as the titled owner of the stolen car. Mississippi Code Annotated section 99-37-l(d) (Rev. 2007) defines “victim,” for the purposes of restitution, as “any person whom the court determines has suffered pecuniary damages as a result of the defendant’s criminal activities.” The statute contains no requirement that victims be named in the indictment. The record, however, fails to contain evidence indicating how Taylor suffered as a result of Weary’s criminal activities, even though upon its review of Weary’s PCR motion, the circuit court found restitution to Taylor proper.

¶ 11. In its order denying Weary’s PCR motion, the circuit court addressed Weary’s claim that the circuit court erred in ordering restitution to Taylor:

It does not follow that the titled owner of the subject vehicle Weary unlawfully took [is] the sole victim of this crime. The purpose for identifying the titled owner in the indictment is to establish the element that the alleged perpetrator took a motor vehicle which was not titled in his name.

Weary’s charges stem from his actions of entering a Pizza Hut restaurant, robbing two employees, stealing money from the restaurant, and then stealing a vehicle owned by one of the employees. Although we find nothing in the circuit court’s order that fully explains the identity of Taylor in regard to Weary’s crimes, we also acknowledge that Weary failed to object to the restitution to Taylor and raised no request for relief from such until expiration of more than three years from the judgment of conviction and sentence. Clearly, the circuit court possessed statutory authority in accordance with section 99-39-3(1) to order restitution to victims who suffered pecuniary damages as a result of Weary’s criminal activities. Since Weary failed to raise any issue regarding the court-ordered restitution to Taylor until more than three years after the circuit court filed Weary’s sentencing order, Weary waived any claim of error as to the restitution. See Little v. State, 918 So.2d 97, 99 (¶ 7) (Miss.Ct.App.2006). Additionally, Weary’s claim of an illegal sentence lacks merit since the circuit court possesses authority in sentencing to lawfully impose restitution as a punishment, and therefore, his claim for relief from restitution is not exempt from the statutory three-year time-bar on that basis. See Miss.Code Ann. § 99-39-5(2) (Supp.2012).

¶ 12. Regarding the delay and resulting waiver, neither the record nor the supplemented record contains any objections or post-trial motions by Weary for relief from the ordered restitution for more than three years. See Little, 918 So.2d at 99 (¶ 7) (petitioner not entitled to a review of claims raised more than three years after judgment). As previously acknowledged, in June 2010, Weary sent a letter to a minister seeking clarification of his sentence with the circuit court regarding whether he was to receive five years suspended, as contained in the criminal disposition. The record contains the circuit court staff attorney’s response to Weary’s letter. The record reflects that Weary’s letter, seeking clarification about the suspended sentence in the oral disposition, constitutes the only post-trial relief pursued by Weary, and the letter raised no issue regarding the restitution order or Taylor’s status as a victim. See Cummings v. State, 58 So.3d 715, 719 (¶ 19) (Miss.Ct.App.2011) (citing Hoops v. State, 681 So.2d 521, 537 (Miss.1996)) (appellate court reviews a sentence using an abuse-of-discretion standard of review when timely and properly raised).

¶ 13. We therefore find Weary failed to timely raise an objection or request other post-conviction relief, to the ordered restitution and therefore, Weary waived his claim for relief from restitution. Weary possessed three years from entry of his judgment to file a PCR motion pursuant to post-conviction-relief procedures. See Miss.Code Ann. § 99-39-3 (purpose of PCR law and procedures); Miss.Code Ann. § 99-39-21(6) (burden on petitioner to show claims are not procedurally barred); Cole v. State, 666 So.2d 767, 772-73 (Miss.1995) (The purpose of remedies contained in section 99-39-3(2) “is to provide prisoners with a procedure, limited in nature, to review issues or errors which ‘in practical reality could not be or should not have been raised at trial or on direct appeal.’ ”). As stated, the circuit court’s authority includes the power to lawfully impose restitution, and by failing to timely object or seek relief, Weary waived any claim for relief therefrom due to insufficiency of the evidence. See Harris v. State, 757 So.2d 195, 199 (¶ 19) (Miss.2000). We again acknowledge that the circuit court entered the sentencing order on February 11, 2008, and Weary filed no PCR motion until September 12, 2011. The limited relief provided by the PCR statutes expired in February 2011. Weary bore the burden to show no procedural bar applied to his claim, and he failed to meet that burden. See Miss.Code Ann. § 99-39-21(6) (burden on petitioner to show claims are not procedurally barred). Therefore, due to the expiration of the three-year statutory time period for raising PCR claims, Weary’s post-conviction claims raised in his September 2011 motion are barred. Accordingly, we affirm the circuit court’s dismissal of Weary’s PCR motion.

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

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

      . See Miss.Code Ann. § 99-37-1(d) (Rev.2007).

      . See Harris v. State, 757 So.2d 195, 199 (¶ 9) (Miss.2000); Powell v. State, 536 So.2d 13, 17 (Miss.1988) (error as to restitution waived by failure to object at sentencing hearing). See also Miss.Code Ann. §§ 99-39-21(6) (Rev.2007) (burden on petitioner to show claims are not procedurally barred) & 99-39-3(2) (Rev.2007).

      . The circuit court made no reference in its order to the fact that the notice of criminal disposition reflected a sentence of ten years for the armed-robbery charge, with five years suspended.

      . Only the notice of criminal disposition references a suspended sentence.

      . See Miss.Code Ann. § 99-37-1(a) (defining criminal activities); Powell, 536 So.2d at 17; Fanning v. State, 497 So.2d 70, 74 (Miss.1986).

      . The supplemental record contains the guilty plea colloquey. During the colloquey, the record shows that the circuit court informed Weary the court would receive a report on Weary's background and circumstances of the charge to assist the court in determining an appropriate sentence. The supplemental record also contains the February 1, 2008 sentencing hearing transcript, where the circuit court acknowledged receiving a pre-sen-tence investigation report prior to sentencing. Jessie Taylor is not named or referenced in the pre-sentencing report. The State acknowledges in its brief that the supplemented record fails to contain a copy of the victim impact statements prepared by the District Attorney's Victim Assistance Liaison.

      . See Burns v. State, 933 So.2d 329, 331 (¶ 9) (Miss.Ct.App.2006) (inmate seeking clarification of operation of sentence should pursue MDOC administrative-review procedures before turning to court).


author: IRVING, P.J.,

text:
    Craig D. SALLIE a/k/a Craig D. Sallie, Sr. a/k/a Craig Sallie, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01280-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.
    Rehearing Denied April 29, 2014.
    Office of State Public Defender by George T. Holmes, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. A Madison County jury convicted Craig D. Sallie of aggravated assault and possession of a firearm by a convicted felon. The circuit court sentenced him to twenty years for the aggravated-assault conviction and ten years for the felon-in-possession-of-a-firearm conviction, with both sentences to run concurrently. The circuit court also sentenced Sallie to an additional ten years pursuant to Mississippi Code Annotated section 97-37-37(2) (Supp.2013), to run consecutively to the other sentences. Sallie filed a motion for a new trial, which the circuit court denied. Feeling aggrieved, Sallie appeals and argues that the circuit court erred by limiting his cross-examination of Gregory Johnson and by enhancing his sentence.

¶ 2. Finding no error, we affirm,

FACTS

¶ 3. Prior to the incident giving rise to Sallie’s convictions, Sallie accused Johnson of stealing a bottle of whiskey from him. Johnson testified that Sallie had threatened him twice regarding the whiskey. On November 28, 2011, an unarmed Johnson walked past Sallie’s house en route to his own home. According to Johnson, as he walked past Sallie’s house, Sallie yelled to him, demanding that Johnson come into his yard. Johnson refused and told Sallie to come into the street so that they could settle the dispute like men. Johnson admitted that he called Sallie a coward and a b* * * *. He testified that Sallie then pulled out a gun and stated, “Naw, you come in my yard.” When Johnson turned to walk away, Sallie started shooting at him. Sallie shot Johnson five times, with one bullet hitting Johnson in the spine, paralyzing him from the waist down. In his statement to the police, Sallie claimed that Johnson came into his yard acting like he was drunk and “maybe high.” He also stated that Johnson initiated the dialogue and that he was “mumbling” words to Sallie. Sallie added that he “reacted without conscious” and shot Johnson, but that he did not initially intend to get violent ■with him.

¶ 4. Johnson admitted that he drank whiskey and smoked marijuana on the day of the incident before the shooting occurred. He denied using cocaine that day, but admitted that he had used cocaine in the past. When defense counsel asked Johnson if the blood test performed at the hospital on the day of the shooting indicated that cocaine was in his system, Johnson replied, “I don’t know nothing about that, sir.” The State objected to the line of questioning regarding Johnson’s alleged cocaine use on the day of the incident, arguing that it was irrelevant to Sallie’s guilt or innocence; and even if it were relevant, its probative value was substantially outweighed by the danger of unfair prejudice. The circuit court sustained the objection because defense counsel had no evidence that Johnson had used cocaine on the day of the incident.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

I. Cross-Examination

¶ 6. “Limitations on cross-examination are reviewed for abuse of discretion.” Anthony v. State, 108 So.3d 394, 397 (¶ 5) (Miss.2013) (citation omitted). “[The appellate court] will affirm the [circuit] court’s exercise of discretion unless the ruling resulted in prejudice to the ac-eused.” Clark v. State, 40 So.3d 531, 542 (¶ 29) (Miss.2010) (quoting Jones v. State, 918 So.2d 1220, 1223 (¶ 9) (Miss.2005)). Sallie argues that the circuit court erred in prohibiting questions involving Johnson’s cocaine use, as Johnson’s cocaine use was relevant to Sallie’s theory of self-defense and to Johnson’s credibility. Sallie did not make this argument at trial and is, therefore, procedurally barred from doing so on appeal. Boyda v. State, 57 So.3d 61, 66-67 (¶ 22) (Miss.Ct.App.2011). Procedural bar notwithstanding, this issue is without merit.

¶ 7. “Mississippi allows wide-open cross-examination of any matter that is relevant!.]” Anthony, 108 So.3d at 397 (¶ 6) (citing Meeks v. State, 604 So.2d 748, 755 (Miss.1992)). Rule 404(a)(2) of the Mississippi Rules of Evidence states:

Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: ...
Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution to rebut evidence that the victim was the first aggressor [.]

¶ 8. Sallie asserts that he “was entitled to have the jury consider the cocaine information to be used along with the other factors of Johnson’s multi-substance intoxication in deliberating whether Sallie was provoked in allegedly shooting Johnson.” He also argues that he was prejudiced when the circuit court limited his cross-examination of Johnson because “the jury was not allowed to deliberate on Johnson’s denial of cocaine use[.]” As stated, Johnson testified that he had only smoked marijuana and drank alcohol on the day of the incident. He further testified that he had used cocaine on some day before the incident. When the court asked defense counsel if he could prove that Johnson had used cocaine on the day of the incident, defense counsel answered that all he had was the blood test results indicating that cocaine was in Johnson’s system on the day of the incident. Sallie presented no evidence to show that Johnson had used cocaine on the day of the shooting or that cocaine use would have increased Johnson’s propensity for violence.

¶ 9. We have previously held that the absence of evidence that drug use increases a person’s propensities for violence renders evidence of drug use irrelevant. See Rouster v. State, 981 So.2d 314, 319 (¶ 14) (Miss.Ct.App.2007). In Rouster, the defendant, charged with aggravated assault, argued that the circuit court erred in sustaining the State’s objection to defense counsel’s questions about whether the two victims were smoking marijuana on the day of the incident. Id. at 318 (¶ 10). He claimed that the line of questioning was relevant to his self-defense theory. Id. We held that the circuit court properly excluded evidence of whether the victims smoked marijuana that day because the defendant did not present any evidence to indicate that the victims’ propensity for violence might be increased by smoking marijuana or that smoking marijuana increases a person’s propensity for violence generally. Id. at (¶ 12). We see no reason to hold differently here. The court did not abuse its discretion in sustaining the State’s objection to defense counsel’s line of questioning inferring that Johnson had used cocaine on the day of the incident. This issue is without merit.

II. Sentence Enhancement

¶ 10. Sallie insists that he had no notice of the ten-year sentence enhancement, as the indictment did not mention it. Therefore, the enhanced portion of his sentence is illegal. However, the record does not support Sallie’s assertion. At the conclusion of the trial, the circuit court judge set the date for the sentencing hearing and stated to the parties that he “wish[ed] to consider the firearm enhancement as provided by 97-37-37(2) [during the sentencing hearing].” Although the sentence-enhancement statute is not listed in the indictment, we disagree with Sallie’s assertion that the enhanced portion of his sentence is illegal. Section 97-37-37(2) states:

Except to the extent that a greater minimum sentence is otherwise provided by any other provision of law, any convicted felon who uses or displays a firearm during the commission of any felony shall, in addition to the punishment provided for such felony, be sentenced to an additional term of imprisonment in the . custody of the Department of Corrections of ten (10) years, to run consecutively, not concurrently, which sentence shall not be reduced or suspended.

As shown by the wording of section 97-37-37(2), Sallie’s sentence could not be enhanced unless the State proved that he was a convicted felon and that he used or displayed a firearm while committing a felony.

¶ 11. While not directly on point with the case at bar, Smith v. State, 106 So.3d 877 (Miss.Ct.App.2013), is certainly relevant. Smith explains that Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requires that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Smith, the defendant argued that “the jury did not make the required factual findings for the sentence enhancement [provided in section 97-37-37(2) ].” Id. at 880 (¶ 4). We found that “every element [contained] in the sentence enhancement statute was contained in the indictment, submitted to the jury, and decided by the jury” because the indictment charged the defendant, a convicted felon, with using a firearm to commit an aggravated assault. Id. at 880 (¶ 6).

¶ 12. Like the defendant in Smith, Sallie was charged with two felonies: Count I, aggravated assault, and Count II, unlawful possession of a firearm by a convicted felon. Count I of the indictment specifically alleged that Sallie committed aggravated assault by “shooting Gregory Johnson in the back with a firearm.” Thus, the “used or displayed a firearm” and “while committing a felony” elements of the enhanced-sentence statute had been listed in the indictment. Count II of the indictment, alleging the unlawful possession of a firearm by a convicted felon, covered the convicted-felon element of the enhanced-sentence statute. Sallie cites no authority that the State is required to include the language of section 97-37-37(2) in the indictment before it may seek a sentence enhancement as required by the statute. We know of no authority holding that the indictment must make reference to the enhancement statute. Certainly, Rule 7.06 of the Uniform Rules of Circuit and County Court, specifying what the indictment must contain, does not require such inclusion. Therefore, contrary to Sallie’s claims, there was no unfair surprise regarding his sentence enhancement under section 97-37-37(2), and the enhanced portion of his sentence is legal. This issue is without merit.

¶ 13. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS; COUNT II, POSSESSION OF A WEAPON BY A CONVICTED FELON, AND SENTENCE OF TEN YEARS; WITH THE SENTENCES IN COUNT I AND COUNT II TO RUN CONCURRENTLY WITH EACH OTHER; AND AN ADDITIONAL TEN YEARS AS AN ENHANCEMENT FOR THE USE OF A FIREARM DURING THE COMMISSION OF A FELONY TO RUN CONSECUTIVELY WITH COUNTS I AND II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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

      . Cody Williams testified that he'was walking home with Johnson on that day and that Johnson had asked Sallie if he could talk to him. After Sallie refused and Williams failed to persuade Johnson to keep walking, the argument between Sallie and Johnson began, and Williams left.


author: ROBERTS, J., IRVING, P.J.,

text:
    In the Interest of S.M.K.S., a Minor, Appellant v. YOUTH COURT OF UNION COUNTY, Mississippi, Appellee.
    No. 2012-CA-01237-COA.
    Court of Appeals of Mississippi.
    Jan. 7, 2014.
    Rehearing Denied May 6, 2014.

      David G. Hill, Tiffany Leigh Kilpatrick, Oxford, attorneys for appellant.
    Stephen P. Livingston, New Albany, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. The Union County Youth Court found that thirteen-year-old S.M.K.S. was a delinquent child because he resisted arrest for disorderly conduct. S.M.K.S. appeals, and claims there was insufficient evidence for the youth court’s decision. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. The events that led to S.M.KS.’s appeal occurred on April 29, 2011, in New Albany, Mississippi. Officers with the New Albany Police Department received a report that shots had been fired in the vicinity of Madison Street or Garfield Street. The report also indicated that the suspects had been driving a tan Oldsmobile Cutlass. When Sergeant Ben Kent heard the radio dispatch, he was alone in his patrol car. Sergeant Kent immediately activated his blue lights and his siren, and drove toward a set of duplex apartments on Cleveland Street, which is in the vicinity of both Madison Street and Garfield Street. Sergeant Kent knew that someone who lived in one of the duplex apartments drove a tan Cutlass. When Sergeant Kent arrived at the duplex, he found the tan Cutlass and “several people in the yard.”

¶ 3. Based on the report that someone had been firing a weapon, Sergeant Kent got out of his patrol car and drew his pistol. He focused his attention on S.M.K.S.’s sixteen-year-old brother. S.M.K.S. was in Sergeant Kent’s peripheral vision. Sergeant Kent sought to ensure that neither S.M.K.S. nor S.M.K.S.’s older brother was armed. To that end, Sergeant Kent told S.M.K.S. and S.M.KS.’s brother to display their hands. Neither S.M.K.S. nor S.M.KS.’s brother complied. Next, Sergeant Kent told them to put them hands on the car. S.M.K.S.’s older brother started walking to the front porch of one of the duplex apartments. According to Sergeant Kent, S.M.K.S. said, “I’m not putting my hands on the car.”

¶ 4. Sergeant Kent testified that he hoi-, stered his pistol and “grabbed [S.M.KS.’s] right wrist with [his] right hand, and [he] used the straight[-]arm bar to put [S.M.K.S.] over the hood of the car to gain his compliance so that [Sergeant Kent] could pat [S.M.K.S.] down to check whether ... he had weapons.” Other members of the New Albany Police Department arrived around that time. Officer Gabe Wilson drove up to the scene seconds before Officer Brent Baker and Officer Stewart Dodds arrived. Meanwhile, S.M.K.S. continued to struggle with Sergeant Kent. According to Officer Wilson, S.M.K.S. was “doing everything [he could] to keep from putting his hands behind [his back]. He’s kicking. He’s yelling. He’s punching. He’s doing whatever he can to try to keep the officers from taking control.” Officer Baker and Officer Wilson took S.M.K.S. to the ground. Officer Baker used his taser on S.M.K.S. S.M.K.S. stopped struggling, and Officer Wilson handcuffed him and put him in a patrol car. Sergeant Kent turned his attention toward S.M.K.S.’s brother while Officer Dodds attempted to keep onlookers away from the other officers.

¶ 5. According to the officers, “another incident broke out” after S.M.K.S. was tased. Officer Wilson described the scene as “mass chaos.” According to Officer Dodds, it was the “most hostile environment” he had experienced during his four years as a police officer. Additional officers responded, including Lieutenant Mark Golding and Detective Chris Robertson. Ultimately,. officers took S.M.K.S., S.M.KS.’s brother, and an adult into custody.

¶ 6. In May 2011, the Union County prosecuting attorney filed a petition alleging that S.M.K.S. resisted arrest in violation of Mississippi Code Annotated section 97-9-73 (Rev.2006) “by refusing to put his hands on the [patrol] car and struggling with the officers.” On July 20, 2012, the youth court conducted a hearing on the prosecution’s petition. Sergeant Kent, Officer Wilson, Officer Baker, Officer Dodds, Officer Jason McDaniel, Lieutenant Golding, and Detective Robertson all testified regarding their involvement in the events that led to S.M.K.S.’s arrest. Latrina By-num testified for S.M.K.S. Bynum lived in the duplex apartment next to S.M.K.S.’s mother. Bynum testified that S.M.K.S. complied with Sergeant Kent’s instructions to put his hands on the car. Bynum further testified that S.M.K.S. did not struggle with Sergeant Kent. According to By-num, Sergeant Kent behaved aggressively from the moment he arrived at the duplex apartments. Bynum also testified that Sergeant Kent immediately told S.M.K.S., “You MF, I told you I was going to get you.”

¶ 7. The youth court found that S.M.K.S. was a delinquent child based on his resisting arrest. The youth court placed S.M.K.S. on probation for six months and ordered that he seek counseling for anger management. S.M.K.S. appeals.

STANDARD OF REVIEW

¶ 8. We apply the following limited standard of review in youth-court cases:

We consider all the evidence presented to the youth court in the light most favorable to the State. If the evidence is such that, beyond a reasonable doubt, reasonable [minds] could not have reached the youth court’s conclusion, we must reverse. However, if the evidence in the record supports the youth court’s adjudication, considering the reasonable[-]doubt standard, then we must affirm.

In re L.C.A., 938 So.2d 300, 303 (¶ 6) (Miss.Ct.App.2006) (internal citations omitted).

ANALYSIS

¶ 9. S.M.K.S. claims that the youth court erred when it found that he was a delinquent child. According to S.M.K.S., there was insufficient evidence for the youth court to find that he resisted arrest. S.M.K.S. also argues that there was no probable cause for Sergeant Kent’s initial arrest.

¶ 10. The County’s petition alleged that S.M.K.S. resisted arrest in violation of section 97-9-73. To prove that S.M.K.S. resisted arrest, there must have been sufficient evidence that (1) Sergeant Kent was attempting a lawful arrest, and (2) S.M.K.S. resisted or obstructed his arrest by force, threats, violence, or any other means. See id. “The offense of resisting arrest presupposes a lawful arrest. A person has a right to use reasonable force to resist an unlawful arrest.” Chambers v. State, 973 So.2d 266, 271 (¶ 13) (Miss.Ct.App.2007). “Under certain circumstances, a law[-]enforcement officer may rely on probable cause to place a child into custody.” In re L.C.A., 938 So.2d at 304 (¶ 9). “[A] law[-]enforeement officer may take a child in custody if ... grounds exist for the arrest of an adult in identical circumstances.” Miss.Code Ann. § 43-21-303(l)(a)(i) (Rev.2009).

¶ 11. With utmost respect, we disagree with the dissent’s conclusion that it was unreasonable for Sergeant Kent to suspect that S.M.K.S. could have been armed. Sergeant Kent had heard recent reports from dispatch that shots had just been fired from a tan Cutlass. Sergeant Kent knew that someone who owned a tan Cutlass lived at a duplex apartment in the vicinity of the area where the gunshots were reported. When Sergeant Kent arrived at the duplex, he found S.M.K.S. and others standing very close to a tan Cutlass. It was lawful for Sergeant Kent to approach S.M.K.S. for the purpose of investigating the report that shots had been fired from the tan Cutlass. “[A] police officer may approach an individual for purposes of investigating possible criminal behavior, even in the absence of probable cause to arrest.” McFarlin v. State, 883 So.2d 594, 598 (¶ 9) (Miss.Ct.App.2004) (citing Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). We also respectfully disagree with the dissent’s conclusion that Sergeant Kent “immediately effectuated a seizure” of S.M.K.S. when Sergeant Kent first approached him. Simply being armed, in and of itself, is not the equivalent of a seizure; particularly when an officer has reason to believe that shots had been fired. Because Sergeant Kent was investigating a report that shots had just been fired from a car that matched the description of the car that S.M.K.S. was near, it was reasonable for Sergeant Kent to conduct a pat-down search for his own safety and ensure that S.M.K.S. was not armed. When it is reasonable for a police officer to believe that someone “may be armed and dangerous, the officer may conduct a very limited search of the outer clothing in order to determine whether the individual is, in fact, armed.” Id. But before Sergeant Kent approached S.M.K.S. to conduct a pat-down search, Sergeant Kent instructed him and his brother to display their hands. They both refused to do so. Sergeant Kent then ordered S.M.K.S. to put his hands on the car. Again, S.M.K.S. refused to comply. Under the circumstances, Sergeant Kent had the authority to arrest S.M.K.S. for violating Mississippi Code Annotated section 97 — 35—7(l)(i) (Rev.2006), which provides that one is guilty of committing a breach of the peace under the following circumstances:

Whoever, with intent to provoke a breach of the peace, or under such circumstances as may lead to a breach of the peace, or which may cause or occasion a breach of the peace, fails or refuses to promptly comply with or obey a request, command, or order of a law[-]enforcement officer, having the authority to then and there arrest any person for a violation of the law, to ... [a]ct or do or refrain from acting or doing as ordered, requested or commanded by said officer to avoid any breach of the peace at or near the place of issuance of such order, request or command.

Sergeant Kent had the authority to temporarily detain S.M.KS. and his older brother to further investigate the report that someone had fired shots from a tan Cutlass. He also had the authority to pat down people near the tan Cutlass to ensure that none of them were armed. Because S.M.K.S. refused to comply with Sergeant Kent’s reasonable instructions, Sergeant Kent had the authority to arrest S.M.KS.

¶ 12. Multiple law-enforcement officers testified that S.M.K.S. resisted arrest. Although there were inconsistencies regarding which officers actually took S.M.K.S. to the ground, and Bynum testified that S.M.K.S. did not resist arrest, it was within the youth-court judge’s discretion to weigh the evidence. With the benefit of hindsight, it is possible that the events that led to S.M.KS.’s arrest may have been avoided if Sergeant Kent had taken a different approach and immediately announced that he had received a report that shots had been fired from a tan Cutlass. But our standard of review does not involve second-guessing a police officer’s investigation of reports that at least one person had been shooting a firearm from a car that matched the description of the car that S.M.K.S. was near. Instead, we are required to view the evidence in the light most favorable to the State and ascertain whether the youth-court judge abused his discretion when he found S.M.K.S. had resisted arrest for disorderly conduct. We find that the youth-court judge did not abuse his discretion when he found that S.M.K.S. qualified as a delinquent child. Consequently, we find no merit to this issue.

¶ 13. THE JUDGMENT OF THE UNION COUNTY YOUTH COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

IRVING, P.J.,

dissenting:

¶ 14. The majority finds that the Union County Youth Court properly adjudicated S.M.K.S. a delinquent child because he resisted arrest for disorderly conduct. I disagree, as I would find that Sergeant Kent illegally seized S.M.K.S., thus making S.M.KS.’s subsequent arrest illegal. Therefore, I dissent. I would reverse and render the judgment of the youth court adjudicating S.M.K.S. a delinquent child.

¶ 15. Sergeant Kent responded to a “shots fired” call from dispatch. The only identifying information relayed to Sergeant Kent through the call was that the suspects were in a tan Cutlass. The dispatcher relayed no information regarding the driver or the occupants of the Cutlass. Sergeant Kent, as a result of patrolling the streets of the City of New Albany, recalled that he had seen a tan Cutlass parked at a duplex on Cleveland Street. However, Sergeant Kent did not know the owner of the Cutlass nor the identity of the person who drove the Cutlass. Based on the limited information that he had, Sergeant Kent went to the duplex on Cleveland Street. Once he arrived, he exited his car with his gun drawn and zeroed in on thirteen-year-old S.M.K.S. and his older brother. Why? Because they were positioned near the tan Cutlass — S.M.K.S. on the sidewalk and his older brother in the yard. According to Sergeant Kent, he told S.M.K.S., “Let me see your hands.” However, there is no evidence that S.M.K.S.’s hands were concealed in any manner, nor is there any testimony regarding where S.M.KS.’s hands were when Sergeant Kent made this request. There is no testimony regarding whether S.M.K.S. complied with Sergeant Kent’s initial request. Nevertheless, S.M.K.S. was subsequently arrested when he refused to comply with Sergeant Kent’s second request to “put [his] hands on the car.”

¶ 16. As our supreme court stated in Jones v. State, 798 So.2d 1241, 1247 (¶ 12) (Miss.2001), “[t]he threshold question is whether [the officer] had probable cause to initiate an arrest.” In my opinion, Sergeant Kent did not even have reasonable suspicion to briefly detain S.M.K.S., much less probable cause to arrest him. As such, the arrest of S.M.K.S. was unlawful.

¶ 17. In order for S.M.KS.’s initial detainment to have been lawful, Sergeant Kent needed “reasonable . suspicion, grounded in specific and articulable facts that [allowed him] to conclude [that S.M.K.S. was] wanted in connection with criminal behavior.” Eaddy v. State, 63 So.3d 1209, 1213 (¶ 14) (Miss.2011) (quoting Walker v. State, 881 So.2d 820, 826 (¶ 10) (Miss.2004)) (internal quotation marks omitted). When Sergeant Kent approached S.M.K.S. with his gun drawn and giving commands, he immediately effectuated a seizure, which “occurs only when the officer, by means of physical force or show of authority has in some way restrained the liberty of a citizen.” Harrell v. State, 109 So.3d 604, 606 (¶ 7) (Miss.Ct.App.2013) (citations and internal quotation marks omitted).

¶ 18. The majority says, “It was lawful for Sergeant Kent to approach S.M.K.S. for the purpose of investigating the report that shots hhd been fired from the tan Cutlass.” Maj. Op. at (¶ 11). I do not disagree, and if that had been all that Sergeant Kent did, I would agree that his actions would have been lawful. But that is not what happened. Sergeant Kent approached with his gun drawn and pointed at S.M.K.S., an unarmed thirteen-year-old child, while shouting a demand to the child to “let me see your hands.” It is interesting that Sergeant Kent never says where S.M.KS.’s hands were, but attempts, by the language employed, to convey the impression that they were in fact concealed. Further, Sergeant Kent did not say or suggest that he noticed a bulge in S.M.KS.’s pocket, which would support a reasonable assumption that S.M.K.S. may have had a gun concealed. For sure, if such a bulge existed, Sergeant Kent would have noticed and mentioned it. It is noteworthy that Sergeant Kent does not say, take your hands out of your pocket and hold them up or put them up, which is the typical law-enforcement jargon that is used when a suspect’s hands are concealed.

¶ 19. The majority goes on to say, “Simply being armed, in and of itself, is not the equivalent of a seizure; particularly when an officer has reason to believe that shots had been fired.” Maj. Op. at (¶ 11). I could not agree more if all the majority means is that there was nothing wrong with Sergeant Kent having his service weapon with him when he went to investigate the shooting, as it is always proper police protocol for an officer to be armed when investigating a shooting incident. However, approaching an innocent thirteen-year-old child with the weapon trained on the child, while shouting a command to the child, is without a doubt a seizure of the child. To find, as does the majority, that it was lawful for a law enforcement officer to pull his weapon and aim it toward an unarmed thirteen-year-old child who was standing in a yard near a vehicle from which a shot had been recently fired — when there was nothing unusual about the child’s appearance, actions, or conduct to suggest that he may have been armed or had recently been involved in criminal conduct — is to strain reason and stretch the holding of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), beyond defensible boundaries. For all Sergeant Kent knew, S.M.K.S. could have been the neighbor’s child from down the street who just happened to be in his friend’s yard.

¶ 20. Despite the majority’s efforts to place Sergeant Kent’s actions within the bounds of the law, it is clear that they are not. Sergeant Kent asked no questions of S.M.K.S., or anyone else, before pointing the gun toward S.M.K.S. and demanding that S.M.K.S. surrender his freedom. It is not reasonably debatable that, based on Sergeant Kent’s show of authority, S.M.K.S. was not free to terminate the interaction with Sergeant Kent. This initial seizure of S.M.K.S. was illegal because Sergeant Kent did not have the requisite probable cause to seize him. While Sergeant Kent certainly had the right to approach and question S.M.K.S. about the Cutlass — and even frisk him to make sure that he did not have a weapon concealed— he did not have the right to immediately seize S.M.K.S. at gunpoint. For example, it would have been entirely proper for Sergeant Kent to inquire if S.M.K.S. knew how long. the Cutlass had been parked there, who owned it, who drove it there, or where that person had gone. Based on Sergeant Kent’s own testimony, the only articulable fact that he had was that the suspects were in a tan Cutlass. Sergeant Kent had no specific and articulable facts to suspect that S.M.K.S., a thirteen-year-old child, had been driving the Cutlass. Nor did he have any reason to suspect that S.M.K.S. had ever been a passenger in the Cutlass, much less a recent passenger. Further, he had no reason to suspect that S.M.K.S. was involved in any way with criminal behavior.

¶ 21. Rather than attempting to engage S.M.K.S. in a conversation to ascertain information about the driver of the Cutlass, Sergeant Kent immediately arrested S.M.K.S. by pulling a gun on him. Clearly, Sergeant Kent’s strategy was to arrest first and talk later, as his actions demonstrated that he thought it was proper to arrest anyone who was in the vicinity of the tan Cutlass, no matter that any such person may have been a chance passerby or an innocent child playing in a nearby yard.

¶ 22. This Court has affirmed that

[ a] warrantless arrest is lawful if at the moment the arrest was made, the officers had probable cause to make it — -if at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [defendant] had committed or was committing an offense.

Bondegard v. State, 81 So.3d 1181, 1185-86 (¶ 16) (Miss.Ct.App.2011) (quoting United States v. Johnson, 445 F.3d 793, 796 (5th Cir.2006)). Here, Sergeant Kent certainly had no probable cause to believe that S.M.K.S. had committed any offense. From the record, it is clear that Sergeant Kent began the arrest of S.M.K.S. without any evidence that S.M.K.S. had been involved in a crime. There was no evidence to suggest that S.M.K.S. was the owner of the tan Cutlass or that he was involved in the previous alleged shooting. Therefore, Sergeant Kent lacked a sufficient basis to arrest S.M.K.S. without a warrant.

¶ 23. The majority concludes that Sergeant Kent was attempting to lawfully arrest S.M.K.S. for disorderly conduct pursuant to Mississippi Code Annotated section 97-35-7(1)© (Rev.2006), which provides:

Whoever, with intent to provoke a breach of the peace, or under such circumstances as may lead to a breach of the peace, or which' may cause or occasion a breach of the peace, fails or refuses to promptly comply with or obey a request, command, or order of a law enforcement officer, having the authority to then and there arrest any person for a violation of the law, to ... [a]ct or do or refrain from acting or doing as ordered, requested or commanded by said officer to avoid any breach of the peace at or near the place of issuance of such order, request or command, shall be guilty of disorderly conduct©

¶ 24. However, without evidence that Sergeant Kent, upon his arrival on the scene, had the authority to immediately arrest S.M.K.S. for a violation of the law, S.M.K.S. had every right to resist the arrest, and it cannot be legitimately argued that S.M.K.S. was not immediately placed under arrest when Sergeant Kent got out of his patrol car with his weapon drawn and trained on S.M.K.S., as an arrest occurs when the pursuit to make the arrest begins. Pollard v. State, 233 So.2d 792, 793 (Miss.1970). When Sergeant Kent pointed his gun at S.M.K.S. and demanded that he show his hands, S.M.K.S. was under arrest even though he had done nothing illegal or given Sergeant Kent any justification for seizing his person. The majority’s finding that Sergeant Kent was making a lawful arrest of S.M.K.S. for disorderly conduct is the equivalent of finding that an officer may illegally assault a citizen and then lawfully arrest the citizen for disorderly conduct when the citizen resists the unlawful assault. That has never been the law, nor should it ever be the law.

¶ 25. For these reasons, I dissent.

ISHEE, J., JOINS THIS OPINION.

      . "Only the initials of the child shall appear on the record on appeal.” Miss.Code Ann. § 43-21-651(1) (Rev.2009).

      . During closing arguments, the prosecutor asked the youth court to “take judicial notice that [S.M.K.S.’s] brother has already admitted to shooting the gun in this case[,] and [he] has already been adjudicated] delinquent for shooting the gun.’’

      . A delinquent child is a child over ten years old who has committed a delinquent act. Miss.Code Ann. § 43-21-105(0 (Supp.2013). A child commits a delinquent act when he or she behaves in a way that would qualify "as a crime under state or federal law, or municipal or county ordinance.” Miss.Code Ann. § 43-21 — 105(j) (Supp.2013).