author: ROBERTS, J.,

text:
    Douglas C. CLARK, Appellant v. Brittany Danielle CLARK, Appellee.
    No. 2012-CA-01196-COA.
    Court of Appeals of Mississippi.
    Nov. 12, 2013.
    Cynthia Ann Re, Joseph E. Fillingane, attorneys for appellant.
    S. Christopher Farris, attorney for ap-pellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. The Lamar County Chancery Court granted an irreconcilable-differences divorce to Douglas Clark and Brittany Clark. The parties agreed as to the distribution of property and assets, and that they would share joint legal custody of their son, Brayden Clark; however, the issue of physical custody was left for the chancery court to decide. Brittany was awarded primary physical custody of Bray-den, and Douglas was granted visitation. Douglas filed the present appeal of the chancery court’s decision to award primary physical custody of Brayden to Brittany. Finding that the chancery court did not consider the propriety of granting joint physical custody, we, reverse the chancery court’s judgment and remand this case for the chancery court to reconsider physical custody of Brayden.

FACTS AND PROCEDURAL HISTORY

¶ 2. Brittany and Douglas were married on January 14, 2006, and their son, Bray-den, was born on May 19, 2008. Brittany initially filed for divorce on August 31, 2009, citing habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences, as the grounds for divorce. Thereafter, the chancery court entered a temporary order on December 15, 2009, awarding the couple joint physical and legal custody of Brayden. A subsequent order amended the custody rotation and explained the holiday-visitation schedule.

¶ 3. Then, on June 28, 2010, Brittany and Douglas filed a joint motion to cancel the trial date, and for separate maintenance and temporary features. The chancery court granted the motion on July 7, 2010, and awarded full legal and physical custody to Douglas. An agreed order to dismiss the divorce complaint was entered on September 21, 2010. Over four months later, Brittany again filed for divorce, alleging the same grounds for divorce as were raised in her initial complaint.

¶ 4. Brittany and Douglas ultimately agreed to an irreconcilable-differences divorce, but submitted the following issues for the chancery court to decide: the statutory amount of child support; the primary physical custody of Brayden; the visitation schedule of the noncustodial parent; and the right to claim Brayden for income-tax purposes. The chancery court resolved these issues at the trial held on June 12, 2012.

¶ 5. At the trial, the chancellor heard testimony from Brittany; her mother, Selena McLaurin; Douglas; and his father, Tommy Clark. Brittany testified that she was currently in nursing school and living with her parents. Even though she was living at home, she had her own room, as did Brayden. She testified that she had no objection to joint legal custody. According to the July 7, 2010 order, Brittany agreed to Douglas having full physical custody and that he was a fit and suitable person to have custody of Bray-den. However, she testified that she did this in an attempt to reconcile with Douglas, as this was a requirement imposed by him as part of their reconciliation. Her primary concerns about Douglas are his inability or unwillingness to communicate with her about Brayden, his derogatory comments about her and her family, and his failure to provide sufficiently for Bray-den on a financial or emotional level. Next, McLaurin, Brittany’s mother, testified. According to McLaurin, she and her husband help provide financially for Bray-den and babysit him when needed. She explained that she has a flexible schedule and can take care of Brayden while Brittany is in nursing-school classes. McLaurin testified that Brittany is a good mother to Brayden and that Brittany tries to work with Douglas on issues concerning Bray-den. But it is difficult to communicate with Douglas about these issues. MeLau-rin also stated that the current custody schedule was stressful for Brayden due to the constant moving between households.

¶6. Clark, Douglas’s father, testified next. Clark testified that Douglas is an excellent father and “takes care of [Bray-den] physically, emotionally, and spiritually.” Clark also explained that he and his wife had flexible schedules and could take care of Brayden when necessary. Douglas was the last to testify. He stated he was in school part-time to obtain his master of divinity degree, and his class schedule, combined with his lawn-care business, provided him a flexible schedule. Douglas also testified that the .visitation schedule is always at Brittany’s discretion, and it has been very frustrating for him. Douglas also expressed great concern over the way Brittany and her family spoil Brayden.

¶ 7. After hearing the testimony, the chancellor issued his ruling from the bench. He acknowledged that the best interest of the child should be considered, and he specifically addressed, each of the Albright factors. The chancellor found that most of the factors were neutral, except that two factors favored Douglas. He stated that if he was “to give [Brayden] to either parent, [he] would be taken care of. [He] would be loved. [He] would be supported. [He] would be nurtured. [He] would be raised properly.” The chancellor further explained:

The [Mississippi Supreme Court] has decided [this court] must follow and do what is in the best interest of the child after [it has] gone through all the Al-bright factors, and ... these are the kinds of cases that ... it’s hard ... to give the child to one or the other because everything here would support that.... [H]ow can you choose one over the other, but [this court] has to.

The chancellor then awarded Brittany physical custody of Brayden because it was in his best interest. Douglas was awarded liberal visitation, and he was ordered to maintain health insurance for Brayden and pay $350 in child support. In regard to which parent could claim Brayden for tax purposes, the chancellor ordered Brittany and Douglas to alternate years.

¶ 8. Douglas timely filed the current appeal and raised two issues:

I. Whether the [chancery] court erred in the application of the Albright factors when [it] denied [Douglas’s] request for physical custody of [Brayden],
II. Whether, as a matter of law, the [chancery] court erred in failing to award the parties joint physical custody of [Brayden], pursuant to Easley v. Easley, 91 So.3d 639 (Miss.Ct.App.2012).

ANALYSIS

¶ 9. “[T]he standard of review in child custody cases is quite limited. A chancellor must be manifestly wrong [or] clearly erroneous, or apply an erroneous legal standard in order for [the appellate court] to reverse.” A.M.L. v. J.W.L., 98 So.3d 1001, 1012 (¶ 23) (Miss.2012) (quoting Johnson v. Gray, 859 So.2d 1006, 1012 (¶ 31) (Miss.2003)). Because we find Douglas’s second issue to be dispositive, we will only address that issue. We defer to a chancellor’s findings of fact; however, his conclusions about the law are reviewed de novo. Irving v. Irving, 67 So.3d 776, 778 (¶ 11) (Miss.2011).

¶ 10. Douglas argues that the chancery court erred when it determined that it could not award joint physical custody. As was quoted above, the chancery court made the following statement before awarding full physical custody to Brittany: “[In these] kinds of cases ... it’s hard ... to give the child to one or the other because everything here would support that.... [H]ow can you choose one over the other, but [this court] has to.” (Emphasis added). The trial was held and the oral decision of the chancery court was made on June 12, 2012. However, just a few days earlier, this Court handed down the case of Easley v. Easley, 91 So.3d 639 (Miss.Ct.App.2012), which is directly on point for this particular issue.

¶ 11. In Easley, the chancery court stated that joint physical custody was in the best interest of the child, but the court was not permitted by law to grant joint physical custody when it was not requested by both parties in an irreconcilable-differences divorce. Id. at 640 (¶ 1). Therefore, the court awarded full physical custody of the minor son to the father. Id. Reversing and remanding the chancery court’s decision, this Court found that “[t]he [chancery court] erroneously concluded that joint custody could not be awarded” under Mississippi Code Annotated section 93-5-24(2) (Rev.2004), and it was error to deviate from the child’s best interest by awarding sole custody to the father. Easley, 91 So.3d at 641 (¶ 10). Additionally, in Crider v. Crider, 904 So.2d 142, 148 (¶ 15) (Miss.2005), the Mississippi Supreme Court held:

[W]hen parties consent in writing to the [chancery] court’s determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of “joint application” in [section] 93-5-24(2). This is the only interpretation that conforms to the primary directive of [Mississippi Code Annotated section] 93-5-24(1) [ (Rev.2004) ] that “custody shall be awarded as follows according to the best interests of the child.”

Importantly, before awarding joint custody, a chancery court must determine whether the parents are “capable of sharing joint custody cooperatively[.]” Crider, 904 So.2d at 147 (¶ 13).

¶ 12. We are presented with a similar set of facts. Like in Easley and Crider, the divorce was granted on the ground of irreconcilable differences. Based on our reading of the transcript, it appears that the chancery court may have concluded, like the chancery court in Easley, that it was required to order custody to one parent regardless of whether joint physical custody was in the best interest of Bray-den. The chancery court made no finding that Brittany and Douglas could not cooperate if joint custody was awarded. See Crider, 904 So.2d at 148 (¶ 15) (“It is the chancellor who must determine what is in the best interest of the child, and it is the chancellor who determines the level of commitment parents have to sharing joint custody.”). We are concerned that the chancery court may have concluded that it was not authorized to consider joint physical custody; therefore, we reverse the chancery court’s judgment and remand this case to the chancery court for it to reconsider its award of custody, including the propriety of awarding joint physical custody.

¶ 13. THE JUDGMENT OF THE CHANCERY COURT OF LAMAR COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. JAMES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. FAIR, J., NOT PARTICIPATING.

      . An additional issue of which parent would provide Brayden’s health insurance was presented for the chancery court to decide; however, it was established that Douglas had been providing health insurance for Brayden and would continue to do so. Therefore, that issue was resolved.

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

      . Mississippi Code Annotated section 93-5-24(2) states: “Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents.”


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Meeae Evelina JONES, Appellant v. Michael Thomas McQUEEN, Appellee.
    No. 2012-CA-00681-COA.
    Court of Appeals of Mississippi.
    Nov. 12, 2013.
    Margaret McDowell Miller, attorney for appellant.
    Calvin D. Taylor, attorney for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   LEE, C.J.,

for the Court:

¶ 1. This case concerns whether Mississippi is a minor child’s home state, allowing a Mississippi court to make a child-custody determination pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). See Miss. Code Ann. §§ 93-27-101 to 402 (Rev.2013).

PROCEDURAL HISTORY

¶ 2. On February 17, 2012, Michael Thomas McQueen, the father of the child in question, filed a complaint in the Jackson County Chancery Court to establish paternity, child custody, and other relief. Meeae Evelina Jones, the mother of the minor child, subsequently filed a motion to dismiss for lack of jurisdiction. After a hearing in which testimony was heard regarding the residence of the child, the chancellor entered a temporary order awarding Jones custody of the child. The chancellor set visitation for McQueen and ordered him to pay $60 per week in child support. Jones filed a notice of appeal from the temporary order.

¶ 3. A trial was set for November 7, 2012, at which time the parties entered into an agreed judgment as to paternity, custody, and visitation. In this judgment, the chancellor ordered both parties to submit authority regarding the application of the UCCJEA. On November 29, 2012, the chancellor entered an order nunc pro tunc to March 27, 2012, finding Mississippi was the minor child’s home state; thus, he had jurisdiction to decide custody. Jones now appeals, asserting the chancellor did not have jurisdiction over the child pursuant to the UCCJEA.

FACTS

¶ 4. Jones and McQueen were in a relationship when Jones became pregnant. Jones gave birth to the couple’s son on June 4, 2011, in Mobile, Alabama. At the time of his son’s birth, McQueen resided in Moss Point, Mississippi. Jones lived at her parents’ house in Irvington, Alabama, but moved into McQueen’s home prior to the birth of their son. McQueen stated Jones moved out of his house in November 2011 for two weeks, but moved back into his house until January 2012 when she and the baby moved back to her parents’ home in Alabama. Jones stated she moved out of McQueen’s house in August 2011 but came back to Mississippi the next week. Jones admittedly lived with McQueen half the time and her parents the other half, mainly because she was enrolled in a school near her parents’ house. Jones spent the holidays with McQueen in Mississippi. Jones had an Alabama driver’s license. Jones did acknowledge moving her possessions out of McQueen’s home in January 2012 when the couple ended their relationship.

STANDARD OF REVIEW

¶ 5. We review de novo questions concerning whether a chancellor has jurisdiction under the UCCJEA to hear a child-custody dispute. Clifton v. Shannon, 93 So.3d 70, 72 (¶ 7) (Miss.Ct.App.2012). “However, the factual findings underpinning the jurisdiction question are reviewed under the familiar substantial evidence and abuse of discretion standard.” Id. (citation omitted).

DISCUSSION

¶ 6. According to Mississippi Code Annotated section 93-27-201(l)(a) (Rev. 2013):

[A] court of this state has jurisdiction to make an initial child custody determination only if:
This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state[.]

Mississippi Code Annotated section 93-27-102(g) (Rev.2013) defines “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child custody proceeding.... A period of temporary absence of any of the mentioned persons is part of the period.”

¶ 7. After hearing testimony concerning the residence of the child, the chancellor determined Mississippi was the home state of the child. The chancellor noted the child had lived in Mississippi since his birth in June 2011 until January 2012. Although the child had been absent from Mississippi since the end of January 2012, McQueen had remained in Mississippi. The record contains substantial evidence to support the chancellor’s determination. We find the chancellor had jurisdiction to hear the child-custody dispute. This issue is without merit.

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

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


author: GRIFFIS, P.J.,

text:
    David GILL a/k/a David A. Gill, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00420-COA.
    Court of Appeals of Mississippi.
    Nov. 19, 2013.

      Carrie A. Jourdan, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. David Gill appeals his conviction of sexual battery. Gill argues: (1) the trial court erred when it denied his post-trial motions, (2) the trial court committed plain error in allowing an erroneous jury instruction, and (3) he was provided ineffective assistance of counsel. We find no error and affirm.

FACTS

¶ 2. On August 9, 2010, Gill was indicted for sexual battery of D.G., a female under the age of eighteen. Gill was indicted under Mississippi Code Annotated section 97-3-95(2) (Rev.2006) for sexual battery of a minor by one in a position of authority over the minor.

¶ 3. D.G. testified that Gill was her grandfather. She lived in his home along with her father, J.G. When she was fifteen, D.G. and her father moved into Gill’s home after the death of her mother. D.G. also testified that her father worked away from home during the week, leaving her often alone with her grandfather.

¶ 4. D.G. testified that she was alone at home with Gill on June 12, 2010. After Gill told D.G. that he wanted to talk to her, she went into Gill’s bedroom. He removed her clothes. He then penetrated her vagina with his tongue and fingers. D.G. remembered that Gill slapped her in the face as well, which resulted in an abrasion on her lower lip. D.G. also testified that Gill attempted to have sex with her. On redirect, D.G. testified that she spent as much time as she could away from home because Gill made her uncomfortable. She did not want to have to deal with him or his demands, such as not being allowed to have her friends visit her in his home. She also claimed that there were other similar incidents during the six or seven months preceding the incident in question.

¶ 5. After the June 12 incident, D.G. went to the emergency room at East Mississippi Medical Center in West Point, Mississippi. Daniel Livingston testified that he was an emergency-room nurse at East Mississippi Medical Center when D.G. came in for an examination. Livingston examined D.G. He testified that D.G. had an abrasion on her lip, which D.G. claimed was caused by her grandfather slapping her. Livingston also testified that D.G. was upset and crying and told him she had been penetrated by her grandfather.

¶ 6. James Faris, a Lowndes County Sheriffs Department investigator, interviewed D.G. and began his investigation of the incident. Gill unexpectedly came to Investigator Faris’s office to make a statement. In his first statement, Gill denied having touched D.G. He also claimed that she was drinking his liquor and smoking marijuana, and that she had previously had a child. Gill believed she was making accusations because she wanted to move out on her own. Gill was willing to have a mouth swab taken for DNA-analysis purposes.

¶ 7. Gill contacted Investigator Faris again to make a second statement. This time, Gill told Investigator Faris he wanted to tell the truth. Gill gave a statement in which he admitted to having penetrated D.G., but claimed that she consented to this activity because he was paying her to do so. He also claimed that D.G. was both drinking and using drugs.

¶ 8. Gill’s statements were admitted into evidence. The record also established that D.G.’s birthday was September 3, 1993. She was sixteen years old at the time of the incident. The record also established that Gill was D.G.’s grandfather, and his birthday was May 14, 1938. Gill was seventy years old at the time of the incident.

¶ 9. The jury found Gill guilty of sexual battery by one who is in a position of authority over a child under the age of eighteen years old. Miss.Code Ann. § 97-3-95(2) (Rev.2006). He was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC). Gill filed a post-trial motion for a judgment notwithstanding the verdict (JNOV). The motion was denied.

ANALYSIS

1. The circuit court properly denied Gill’s motion for a JNOV.

¶ 10. In his post-trial motion, Gill argued that the State failed to prove that he was in a position of trust or authority over D.G., as required by Mississippi Code Annotated section 97-3-95(2) (Rev.2006). Section 97-3-95(2) provides:

A person is guilty of sexual battery if he or she engages in sexual penetration with a child under the age of eighteen (18) years if the person is in a position of trust or authority over the child including without limitation the child’s teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.

¶ 11. Gill cites to this Court’s decision in Campbell v. State, 125 So.3d 58 (Miss.Ct.App.2012), where this Court reversed and rendered the conviction of David Campbell after finding that the State failed to prove that Campbell occupied a position of trust or authority as defined by Mississippi Code Annotated section 97-5-23(2) (Rev.2006). On August 1, 2013, the supreme court reversed the judgment of this Court and reinstated the judgment of conviction. Campbell v. State, 125 So.3d 46 (Miss.2013). The supreme court found that there was sufficient evidence to establish Campbell was in a position of trust or authority. Id. at 51 (¶ 9). Campbell does not support Gill’s position.

¶ 12. “[A] motion for a JNOV challenged the legal sufficiency of the evidence.” Wells v. State, 57 So.3d 40, 45 (¶ 10) (Miss.Ct.App.2011) (citing Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)). We will not disturb the circuit court’s ruling if, viewing the evidence in the light most favorable to the State, “the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Id. (quotation marks omitted).

¶ 13. A motion for a new trial is a challenge to the weight of the evidence. In reviewing the denial of a motion for a new trial, “we will only disturb [the] verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d. at 844 (¶ 18). The evidence must be viewed in the light most favorable to the verdict. Id.

¶ 14. Here, under either standard, the evidence was sufficient to find Gill guilty of sexual battery beyond a reasonable doubt. D.G. testified that while her father traveled for work, she was left with Gill, her grandfather, at his house. During this time, D.G. was under Gill’s authority and control. She was subject to Gill’s rules; for instance, she was not allowed to have her friends over to the house.

¶ 15. D.G. also testified that Gill penetrated her vagina with his tongue and his fingers. Gill’s statement to the police corroborated D.G.’s testimony as to this incident. Gill confessed that D.G. was at his home and under his authority when he penetrated her with his tongue and his fingers. He also admitted that he had engaged in sexual acts on several previous occasions with D.G. in exchange for money. ' Livingston testified as to D.G.’s physical and emotional condition after the incident and about D.G.’s statements that her grandfather penetrated and slapped her. Also, there was evidence that D.G. was under the age of eighteen and Gill was seventy years old.

¶ 16. This Court has found the victim’s accusation of penetration, officer testimony regarding an admission by the defendant that he attempted to have sexual intercourse with the victim, and physician and officer testimony regarding the victim’s condition after the incident to be sufficient credible evidence to support a sexual-battery conviction. Hopson v. State, 749 So.2d 227, 229 (¶ 9) (Miss.Ct.App.1999). Further, this Court has interpreted the statutory element regarding the minor victim being under the care and control of the defendant “to state that any person in control of the care of the child, including, but not limited to, the named classification of individuals, can be held accountable for this crime.” Blackmon v. State, 803 So.2d 1253, 1256 (¶ 13) (Miss.Ct.App.2002). Although Gill, as D.G.’s grandfather, is not specifically within one of the named classes, there was sufficient evidence of his control over D.G.’s care based on the testimony of D.G. and Gill’s statement to the police.

¶ 17. We find that there was sufficient evidence for the jury to conclude that Gill was in a position of trust or authority over D.G. at the time the crime occurred. This issue is without merit.

2. The circuit court did not commit plain error in allowing Jury Instruction S-2 to be read to the jury.

¶ 18. Gill next argues that the circuit court erred by allowing Jury Instruction S-2 to be read to the jury. Jury Instruction S-2 provided:

The court instructs the jury that if you find from the evidence in this case beyond a reasonable doubt that the Defendant, DAVID GILL, did on or about June 12, 2010, unlawfully, willfully, and feloniously engage in sexual penetration with D.G., a child under the age of eighteen (18), by licking her private parts and inserting his fingers, while he, DAVID GILL, was in a position of trust or authority over D.G., DAVID GILL, being her grandfather, then you shall find the Defendant guilty of Sexual Battery as charged. If the State has failed to prove any of these elements beyond a reasonable doubt, then you shall find the Defendant not guilty.

¶ 19. Gill argues that this instruction was misleading. Specifically, Gill claims that the instruction would make the jury believe that Gill, being her grandfather, was automatically in a position of trust or authority over D.G. Thus, the jury would be precluded from making a determination whether or not Gill was in a position of trust or authority over her.

¶ 20. During the jury-instruction conference, Gill’s counsel stated: “[I]t’s a fair statement of the law,” referring to Jury Instruction S-2. Therefore, this issue is procedurally barred. When a party fails to make a contemporaneous objection, the appellate court is under no obligation to review the assignment of error. Caston v. State, 823 So.2d 473, 503 (¶ 102) (Miss.2002).

¶ 21. Gill argues that notwithstanding the procedural bar, this Court has the power to reverse based on a misleading jmy instruction if this Court finds that the trial court committed plain error that would affect Gill’s fundamental rights by allowing the erroneous jury instruction. See Berry v. State, 728 So.2d 568, 571 (¶ 6) (Miss.1999). We find, however, that the jury instruction was properly given.

¶ 22. When we review a challenge to a jury instruction, we read the instructions as a whole, and if the instructions fairly state the law of the case and create no injustice, then we will not find reversible error. Wilson v. State, 72 So.3d 1145, 1156 (¶ 31) (Miss.Ct.App.2011) (citations omitted). The supreme court has “consistently held that instructions in a criminal case which follow the language of a pertinent statute are sufficient.” Rubenstein v. State, 941 So.2d 735, 772 (¶ 155) (Miss.2006) (quoting Byrom v. State, 863 So.2d 836, 880 (¶ 163) (Miss.2003)).

¶ 23. Jury instruction S-2 is based on the statutory language of the crime of sexual battery, under Mississippi Code Annotated section 97-3-95(2). In fact, this instruction followed the language of the statute. Thus, it did not constitute plain error.

¶24. Gill’s point of contention is that the instruction seems to inform the jury that he was automatically in a position of trust or authority over D.G. because he was her grandfather. But the instruction clearly asks the jury to determine whether Gill was in a position of trust or authority at the time he penetrated D.G. We find that the instruction fairly states the law of the case, and it does not create an injustice. As a result, we do not find reversible error. This issue is without merit.

3. Gill was provided effective assistance of counsel.

¶ 25. Finally, Gill argues that he was deprived of his constitutional right to effective assistance of counsel, and as a result, was convicted of sexual battery and sentenced to twenty years in the custody of MDOC. Gill cites several alleged missteps by his counsel to support his ineffective-assistance-of-counsel claim.

¶ 26. To prove ineffective assistance of counsel, Gill must show that (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Gill to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

¶ 27. The merits of a claim of ineffective assistance of counsel brought on direct appeal should be addressed only when “(1) the record affirmatively show[s] ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999). The supreme court has held:

The question presented ... is not whether trial counsel was or was not ineffective but whether the trial judge, as a matter of law, had a duty to declare a mistrial or to order a new trial[ ] sua sponte on the basis of trial counsel’s performance. “Inadequacy of counsel” refers to representation that is so lacking in competence that the trial judge has the duty to correct it so as to prevent a mockery of justice. Parham v. State, 229 So.2d 582, 583 (Miss.1969).

Colenburg, 735 So.2d at 1102 (¶ 8). If this Court does not reverse on other grounds and is unable to conclude that the defendant received ineffective assistance of counsel, it should affirm “without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings.” Id. at 1101 (¶ 5). Review of an ineffective-assistance-of-counsel claim on direct appeal is “confined strictly to the record.” Id. at 1102 (¶ 6).

¶ 28. Gill alleges several instances in which his counsel provided deficient representation. He claims the following errors adversely affected the outcome of his case: the defense counsel’s failure to suppress the confession, failure to obtain potential exculpatory evidence, failure to interview important witnesses, failure to obtain a mental examination of Gill, failure to object to Jury Instruction S-2, and failure to obtain and present mitigating evidence during the sentencing phase of the trial. Yet Gill faces a great burden to prove that such deficiencies warranted that the circuit judge declare a mistrial sua sponte. Further, our review of the record reveals that we have no reason to second guess counsel’s trial strategy.

¶ 29. As this Court held in Hancock v. State, 964 So.2d 1167, 1175 (¶ 18) (Miss.Ct.App.2007):

[A] strong presumption exists “that the attorney’s conduct fell within the wide range of reasonable professional assistance.” Carr v. State, 873 So.2d 991 [,1003] (¶ 27) (Miss.2004). “Counsel’s choice[s] of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy” and will not stand as support for an ineffective assistance of counsel claim. Id. (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)).

¶ 30. We find no obvious deficiencies that imposed a duty upon the circuit court to declare a mistrial. As such, we deny relief on this issue without prejudice so that Gill may, if he desires to do so, present a claim of ineffective assistance of counsel in a motion for post-conviction collateral relief.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A FINE OF $5,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The initials are used to conceal the actual name of the minor victim.


text:
    Terrance BARKER a/k/a Terrance Lashawn Barker a/k/a Shawn, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01589-COA.
    Court of Appeals of Mississippi.
    Nov. 19, 2013.
    Terrance Barker, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before GRIFFIS, P.J., ISHEE and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Terrance Barker appeals the dismissal of his motion for post-conviction collateral relief (PCCR). The circuit court determined that Barker’s motion was time-barred pursuant to Mississippi Code Annotated section 99-39-5(2) (Supp.2012). Barker contends that this dismissal was in error. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On or about November 30, 2001, Barker and two other individuals charged into a trailer in Lowndes County, Mississippi. Juan Martinez and Alfonzo Garza were two of the occupants of the trailer. The two other individuals with Barker were armed with a shotgun and a pistol. They pointed their weapons at Martinez and Garza, and they left with approximately $3,000. A witness saw Barker and his two colleagues outside of the trailer and was able to identify them. Based on the witness’s information, the police arrested Barker’s colleagues. Both of them confessed to the crime and identified Barker as being involved with them. They both were willing to testify against Barker in court.

¶ 3. On May 20, 2002, Barker pled guilty to one count of armed robbery pursuant Mississippi Code Annotated section 97-3-79 (Rev.2006). In exchange for his guilty plea, the State agreed to retire Barker’s second count of armed robbery to the file. On May 24, 2002, Barker was sentenced to serve seventeen years in the custody of the Mississippi Department of Corrections.

¶ 4. On July 13, 2012, Barker filed a petition to reduce his sentence and/or withdraw his guilty plea with the trial court. Barker argued that he entered his guilty plea based on erroneous advice from his counsel. The circuit court treated the petition as a PCCR motion and summarily dismissed the motion without an evidentia-ry hearing. The circuit court ruled that the motion was time-barred based on the three-year statute of limitations. It is from this order that Barker now appeals.

STANDARD OF REVIEW

¶ 5. We will not reverse a trial court’s dismissal of a PCCR motion unless the trial court’s decision was clearly erroneous. Madden v. State, 75 So.3d 1130, 1131 (¶ 6) (Miss.Ct.App.2011) (citation omitted). When reviewing questions of law, this Court’s standard of review is de novo. Id. (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)).

ANALYSIS

¶ 6. The circuit court properly dismissed Barker’s motion as time-barred. The Mississippi Uniform Post-Conviction Collateral Relief Act, in Mississippi Code Annotated section 99-39-5(2), provides:

A motion for relief under this article shall be made within three (3) years after the time in which the petitioner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after the entry of the judgment of conviction.

¶ 7. Barker’s motion was filed well beyond the three-year statute of limitations. However, we must determine if Barker’s motion falls within one of the exceptions to the statute of limitations.

¶ 8. Section 99-39-5(2) allows exceptions from this bar where the PCCR movant can show:

[TJhere has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.... Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

The petitioner has the burden of proving his case falls within one of these exceptions. Id. Here, Barker fails to meet this burden. Barker has failed to show any newly discovered evidence or that any of the other exceptions apply. Therefore, we find Barker’s motion to be time-barred. We affirm the circuit court’s judgment that dismissed Barker’s motion.

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

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


text:
    WELLS FARGO ADVISORS, LLC, Appellant v. Hubert L. RUNNELS, Jr., Appellee.
    No. 2012-CA-00578-COA.
    Court of Appeals of Mississippi.
    Nov. 19, 2013.

      Bradley Barron Vance, Jackson, Jonathan Edward Levine, attorneys for appellant.
    David Neil McCarty, Oliver E. Diaz Jr., Jackson, attorneys for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Wells Fargo Advisors, LLC appeals the circuit court’s denial of its motion to confirm an arbitration award and for entry of a judgment against Hubert Runnels, Jr. Wells Fargo argues that the circuit court erred in the denial of the motion because Runnels’s effort to vacate the arbitration award was time-barred and Runnels failed to set forth sufficient grounds to vacate the arbitration award. Finding error, we reverse the circuit court’s judgment and render judgment in favor of Wells Fargo against Runnels.

FACTS

¶ 2. On May 10, 2007, Runnels began his employment with Wachovia Securities, LLC, in Ocean Springs. During his employment, through mergers, Wachovia became Wells Fargo.

¶ 3. At the beginning of his employment, Runnels signed a promissory note payable to Wachovia Securities, LLC, as well as its affiliates, successors, or assigns. The note provided that Runnels would repay any outstanding principal balance, including interest and all costs of collection (including attorney’s fees and related costs and expenses) if his employment ended for any reason or no reason at all. The note also provided that any action instituted as a result of any controversy arising from the note was to be brought before the National Association of Securities Dealers (“NASD”). In addition, Runnels executed a Uniform Application for Securities Industry Registration or Transfer (“Form U4”), which provided:

I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the SROs indicated in Section 4 (SRO Registration) as may be amended from time to time and that any arbitration award rendered against me may be entered as a judgment in any court of competent jurisdiction.

(SRO is an acronym for self-regulatory organization. Based on the Form U4, Runnels was registered with the NASD as the SRO.) Runnels also executed a Pre-Dispute Arbitration Clause where he acknowledged that he understood that he was agreeing to arbitrate any dispute, claim, or controversy that may arise between him and his firm that is required to be arbitrated under the rules of the SRO with which he was registering, including the NASD and NYSE (now FINRA).

¶ 4. Runnels resigned from Wells Fargo on March 9, 2009. As of that date, Runnels was obligated to pay the outstanding principal balance of $39,150. Runnels failed and refused to pay the amount owed.

¶ 5. On August 19, 2009, Wells Fargo filed its statement of claim in arbitration with FINRA. Runnels answered the statement of claim and participated in the arbitration, without objection. On July 28, 2010, the arbitrator issued an award in favor of Wells Fargo. The arbitrator determined that Runnels was to pay $39,150 in principal, plus interest, at the annual percentage rate of 5.25% that has accrued from March 6, 2009, until July 19, 2010, and $4,927.50 in attorney’s fees.

¶ 6. On July 13, 2011, Wells Fargo filed its motion to confirm the arbitration award and for entry of a judgment in the Circuit Court of Hinds County, Mississippi. On September 29, 2011, through counsel, Runnels filed his response in opposition to the motion. The circuit judge heard oral argument from counsel on December 12, 2011. On March 14, 2012, the circuit court entered the following order:

This cause came on for hearing before this Court on the Plaintiffs Motion to Confirm Arbitration Award and for Entry of Judgment. The Court, having reviewed the pleadings and other submission, • having heard the argument of the parties, and being otherwise advised in the premises herein, finds that the Motion to Confirm Arbitration Award and for Entry of Judgment is not well taken and should be denied.
It is therefore ordered and adjudged that the Plaintiffs Motion to Confirm Arbitration Award and for Entry of Judgment is denied.

The circuit judge neither made an oral ruling from the bench nor issued a written opinion. It is from this judgment that Wells Fargo now appeals.

STANDARD OF REVIEW

¶ 7. Runnels argues that this Court should review this case for an abuse of discretion. He argues that the Federal Arbitration Act “imposes a heavy presumption in favor of confirming arbitration awards,” and so “a court’s confirmation of an arbitration award is usually routine or summary.” Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1288-89 (11th Cir.2002). However, federal law provides that a court may vacate an arbitration award “where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” 9 U.S.C. § 10(a)(4) (2006). According to the United States Supreme Court, this is one of the “exclusive grounds for expedited vacatur and modification” of an arbitration award. Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 584, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008). Runnels argues that the circuit judge determined that based on the unique facts of this case the award could not be confirmed, and this determination is subject to review for an abuse of discretion. Wilson v. Greyhound Bus Lines, Inc., 830 So.2d 1151, 1156 (¶ 15) (Miss.2002).

¶ 8. Wells Fargo argues that the standard of review here is a mixed standard based on whether the issue involves a question of law or question of fact. We review errors of law de novo. Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996). Further, we apply “a de novo standard of review to the statute of limitations.” Lincoln Electric Co. v. McLemore, 54 So.3d 833, 835 (¶ 10) (Miss.2010). We review issues of fact for abuse of discretion. Wilson, 830 So.2d at 1155 (¶ 9). This Court will not disturb the circuit judge’s findings “unless they are manifestly wrong [or] clearly erroneous[,] or an erroneous legal standard was applied.” Id. To determine whether an arbitration award should be confirmed, “it is not legitimate ... [for the court] to inquire into the original merits in favor of one party or the other, or to show that in the evidence the award ought to have been different or that the law of the case was misconceived or misapplied, or that the decision, in view of all the facts and circumstances, was unjust.” Id. at 1156 (¶ 11). “The scope of judicial review ... is quite narrow, and every reasonable presumption will be indulged in favor of the validity of arbfeation proceedings.” Id. at 1155 (¶ 9) (citations omitted).

ANALYSIS

¶ 9. Wells Fargo’s motion invoked the jurisdiction of the circuit court pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), and the Mississippi Arbitration Act, Miss.Code Ann. § 11-15-1 et seq. (“MAA”). Wells Fargo asked the circuit court to confirm the arbitration award and to enter a judgment against Runnels based on the award. In his response in opposition to the motion, Runnels made three objections: (1) the contract could not be rewritten and was therefore void; (2) the arbitration was void ab initio and therefore could not be confirmed, and (3) Wells Fargo did not have standing in the circuit court.

¶ 10. The circuit judge, without explanation, only denied Wells Fargo’s motion. The pleadings established that the circuit judge was given a decision to either: (a) confirm the arbitration award and enter a judgment (Wells Fargo wins), or (b) vacate the arbitration award (Runnels wins). Instead, the circuit judge only denied the motion to confirm; he did not vacate the arbitration award.

¶ 11. Therefore, it seems as if the circuit court did not enter a final judgment, and there may be a question as to whether this Court has jurisdiction to hear the appeal. Under Mississippi Rule of Civil Procedure 54(b), a judgment that affects “one or more but fewer than all of the claims” is not final unless the circuit judge expressly determines “there is no just reason for delay” and explicitly directs “the entry of the judgment.” Such is not the case here. Because of our finding under section 1 below, that Runnels is time-barred from contesting the confirmation of the award, we recognize that the circuit court’s judgment was a final judgment, and we have jurisdiction to consider this appeal.

1. Runnels was time-barred from contesting the confirmation of the award, and it was error not to grant the motion to confirm.

¶ 12. Wells Fargo argues that Runnels failed to challenge the enforceability of the award by filing a motion to vacate in a timely manner, and thus his claim is barred. Said differently, Runnels’s response in opposition to the motion to confirm the arbitration award and for entry of a judgment was time-barred under both the FAA and the MAA.

¶ 13. The MAA and FAA include a limitations period. Mississippi Code Annotated section 11-15-21 (Rev.2004) provides:

Upon presentation of the articles of submission and the award to the court designated in the submission or the court having jurisdiction of the subject matter of the award, the court shall, upon motion, confirm the award, unless the same be vacated or modified, or a decision thereon be postponed, as hereinafter provided. An award shall not be confirmed unless notice in writing of such motion shall have been served on the adverse party at least five days before the hearing, to be served as other process; but such motion shall not be made after the expiration of one year from the making and publication of the award.

The FAA also provides that a party to an arbitration may, within one year of the date of the arbitration award, apply for an order confirming the arbitration award, and the court must issue an order confirming the award unless it is vacated, modified, or corrected based on one of the statutorily enumerated grounds. 9 U.S.C. § 9 (2006).

¶ 14. The MAA and FAA also specify when a action to vacate an arbitration award must be filed. Mississippi Code Annotated section 11-15-27 (Rev.2004) provides:

An application to vacate or modify an award shall be made to the court at the term next after the making and publication of the award, upon at least five days’ notice, in writing, being given to the adverse party, if there be time for that purpose; and if there be not time, such court, or the judge thereof, may, upon good cause shown, order a stay of proceedings upon the award, either absolutely or upon such terms as shall appear just, until the next succeeding term of court.

The FAA requires that the motion to vacate, modify, or correct be filed within three months from the date the award was issued or delivered, and “[n]otice of a motion to vacate ... an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered.” 9 U.S.C. § 12 (2006).

¶ 15. In Rigby v. Roadway Express, Inc., 680 F.2d 342, 343-44 (5th Cir.1982), the Fifth Circuit found that to vacate an arbitration award beyond the time limitations set forth in the MAA was barred by Mississippi Code Annotated section 11—15—27.

¶ 16. Here, the arbitration award was made and filed on July 28, 2010, and was published on July 29, 2010. Runnels filed an opposition to this award on September 29, 2011. Wells Fargo argues that because Runnels sought to have the arbitration award vacated in his response in opposition to its motion to confirm the arbitration award and for entry of a judgment, then Runnels’s response in opposition is considered a motion to vacate for purposes of the statutory limitations period. Thus, under the FAA, Runnels had until October 28, 2010, to seek to have the award vacated, modified, or corrected. Under the MAA, Runnels had until the term next, which ran from November 2010 to January 2011. Because he failed to bring an action to vacate the award during the limitations period, Runnels’s claim is time-barred and he may not object to Wells Fargo’s motion to confirm the arbitration award and for entry of a judgment.

¶ 17. Wells Fargo is correct as a matter of law. Runnels’s failure to file an action to vacate the arbitration award in a timely manner bars his opposition to Wells Fargo’s motion to confirm the arbitration award and for entry of a judgment. As to this issue, we find the circuit judge committed reversible error, and we render judgment in favor of Wells Fargo.

2. Runnels failed to set forth sufficient grounds to vacate the arbitration award, and Wells Fargo was entitled to have the award confirmed.

¶ 18. Wells Fargo next argues that the confirmation of the arbitration award was mandatory under both the FAA and the MAA, unless Runnels could prove the statutory grounds necessary to vacate the award. Thus, Wells Fargo claims that the circuit court was in error to deny the motion to confirm the arbitration award and for entry of a judgment.

A. Confirmation of an arbitration award is mandatory unless the award is vacated.

¶ 19. The FAA and MAA require the court to confirm an arbitration award unless the award is vacated, modified, or corrected. 9 U.S.C. § 9; Miss.Code Ann. § 11-15-21. The supreme court has held that “an arbitration award may be overturned by the reviewing trial court only if the elements of the applicable statute are present.” Wilson, 830 So.2d at 1157 (¶ 16). In Wilson, the court ruled that because the record contained no evidence that would cause the award to be vacated, according to [Mississippi Code Annotated section] ll-15-23(a)-(d) [ (Rev.2004) ], the award would not be set aside. Wilson, 830 So.2d at 1157 (¶ 16).

¶ 20. Under the FAA, a court may vacate an arbitration award:

(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter was not made.

9 U.S.C. § 10(a) (2006). Under the MAA, a court may vacate under an arbitration award under certain instances:

(a) That such award was procured by corruption, fraud, or undue means;
(b) That there was evident partiality or corruption on the part of the arbitrators, or any one of them;
(c) That the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent or material to the controversy, or other misbehavior by which the rights of the party shall have been prejudiced;
(d) That the arbitrators exceeded their powers, or that they so imperfectly executed them that a mutual, final, and definite award on the subject matter was not made.

Miss.Code Ann. § 11-15-23.

¶ 21. Wells Fargo argues that the award must be confirmed, because it was not vacated, modified, or corrected. Indeed, were it not for our decision in section 1 finding that the period for seeking vacation of the arbitration award had expired, we may have determined that the circuit court’s decision was not a final judgment, which would have deprived this Court of jurisdiction. Such is not the case.

¶ 22. We agree with Wells Fargo. First, the limitations period expired before Runnels sought any relief from the arbitration award. Second, the arbitration award did not fall under any of the four instances that would have allowed the award to be vacated. 9 U.S.C. § 10(a); Miss.Code Ann. § 11-15-23. The arbitration award was not procured by corruption, fraud, or undue means; there was no evident partiality or corruption on the part of the arbitrators; there was no refusal to postpone the hearing upon sufficient cause, and no misbehavior by which the parties’ rights were prejudiced; and the arbitrators did not exceed nor execute their powers in a matter in which an award was imperfectly made. 9 U.S.C. § 10(a); Miss. Code Ann. § 11-15-23.

¶ 23. The supreme court has ruled that the trial court “is not allowed to substitute its own judgment on the merits of the controversy for that of the arbitrator but is instead constrained to determine whether the award fails [an] analysis under [section] 11-15-23.” Margerum v. Bud’s Mobile Homes, Inc., 823 So.2d 1167, 1173 (¶ 17) (Miss.2002). Accordingly, we find it was reversible error for the circuit judge to deny the motion to confirm the arbitration award and for entry of a judgment. We hereby render judgment to confirm the arbitration award and enter a final judgment in favor of Wells Fargo for the relief requested.

B. Runnels’s sole basis to vacate the award, which is that he agreed to arbitrate before the NASD and not FIN-RA, is an insufficient ground to vacate the award.

¶ 24. Runnels’s sole basis to vacate the arbitration award is that he agreed in the note to arbitrate before the NASD and not FINRA. Runnels argues that the arbitration was void ab initio, and therefore cannot be confirmed.

¶ 25. Void ab initio means that a contract is null from the beginning if it seriously offends law or public policy, in contrast to a contract that is merely voidable at the election of one of the parties. Hood ex rel. State v. Barbour, 958 So.2d 790, 815 (¶ 87) (Miss.2007). Because of this, it is as if the contract never existed. Id. at 816 (¶ 89).

¶26. Runnels’s response in opposition to Wells Fargo’s motion to confirm the arbitration award claimed that the arbitrator exceeded his powers because the underlying arbitration agreement in the note was void in that it required arbitration before the NASD, not FINRA. Runnels argued that the plain language of the note set the arbitrator as NASD. Thus, because that company no longer exists, Runnels claims that the court must refuse to confirm the arbitration award on the grounds that the arbitration agreement was void ab initio.

¶ 27. After Runnels executed the arbitration agreement, the NASD became FINRA, and NASD Dispute Resolution, Inc. became FINRA Dispute Resolution, Inc. The name change from NASD to FINRA did not create a new entity, but rather, encompassed only a name change. Runnels counters that a new entity was formed, which invalidates the language of the arbitration agreement and renders the arbitration award void, because the arbitrator never had jurisdiction over the matter.

¶ 28. Mississippi Code Annotated section 79-4-10.09 (2000) provides:

An amendment to the articles of incorporation does not affect a cause of action existing against or in favor of the corporation, a proceeding to which the corporation is a party, or the existing rights of persons other than shareholders of the corporation. An amendment changing a corporation’s name does not abate a proceeding brought by or against the corporation in its former name.

We recognize that FINRA is a Delaware corporation. Under Delaware law, a mere name change does not affect the rights and liabilities of a corporation or the people doing business with it. Del. Code Ann. tit. 8, § 245 (2010).

¶ 29. Based on the information before the Court, we find that NASD’s name change to FINRA did not negate the validity of the arbitration agreement. FINRA was the proper arbitrator, and it had jurisdiction. Therefore, Runnels’s argument that the note is void is without merit.

C. Runnels submitted to arbitration with FINRA.

¶ 30. When he began his employment with Wells Fargo (the successor to Wachovia Securities), Runnels executed a valid arbitration agreement when he signed a Form U4. The Form U4 provided:

I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the SROs indicated in Section 4 (SRO Registration) as may be amended from time to time and that any arbitration award rendered against me may be entered as a judgment in any court of competent jurisdiction.

¶ 31. In addition, Runnels also signed a disclosure regarding the “Pre-Dispute Arbitration Clause” in the Form U4 that acknowledged that he understood he was agreeing to arbitrate any dispute, claim, or controversy that may arise between Runnels and his firm that is required to be arbitrated “under the rules of the self-regulatory organizations with which he is registering.” When he executed the Form U4, Runnels registered with the NASD and the NYSE. In doing so, he received a CRD number. When the NASD became FINRA, Runnels’s CRD number remained the same.

¶ 32. FINRA Rule 13200 (formerly NASD Rule 13200) requires arbitration of any dispute, claim, or controversy arising between an “associated person” and his firm that arises from the business activities of a “member” or associated person. As an associated person of the NASD, Runnels became an associated person of FINRA, and his failure to submit to FIN-RA arbitration would be a violation of FINRA rules.

¶ 33. Although Runnels argues that because the FINRA arbitrator denied the claim for overpayment of commissions, which he asserts would have been subject to the Form U4, and thus, the Form U4 does not apply, we disagree. Runnels’s execution of the Form U4 and registration with the SRO show an understanding and acknowledgment of the possibility of arbitration. Therefore, we find that Runnels was required to submit to arbitration with FINRA based on the above facts.

CONCLUSION

¶ 34. We find that the circuit court committed reversible error when it denied Wells Fargo’s motion to confirm the arbitration award and for entry of a judgment. Accordingly, we reverse the circuit court’s judgment. We also render judgment in favor of Wells Fargo and confirm the arbitration award. Judgment is entered in favor of Wells Fargo and against Runnels in the principal amount of $39,150, plus interest on the principal amount at the annual percentage rate of 5.25% that accrued from March 6, 2009, until July 19, 2010, plus $4,927.50 in attorney’s fees.

¶ 35. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ„ CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT.

      . In 1999, the NASD created NASD Dispute Resolution, Inc., a wholly owned subsidiary, to serve as its "arbitration facility.” On July 26, 2007, the NASD and New York Stock Exchange Regulation consolidated their member regulation and enforcement operation, and the NASD changed its name to Financial Industry Regulatory Authority (FINRA). On December 21, 2007, NASD Dispute Resolution, Inc. filed its Amended and Restated Certificate of Incorporation, changing its name to FINRA Dispute Resolution, Inc.


author: FAIR, J.,

text:
    Benjamin RUSSELL a/k/a Benjamin Rodgers Russell a/k/a Benjamin R. Russell a/k/a Benjamin Rodger Russell, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KM-01787-COA.
    Court of Appeals of Mississippi.
    Nov. 19, 2013.

      Kevin Dale Camp, Jared Keith Tomlin-son, Jackson, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. On July 7, 2011, Benjamin Russell entered a nolo contendere plea in Flowood Municipal Court to one count of speeding and one count of driving under the influence (DUI), first offense. Russell appealed to the Rankin County County Court where, after a trial de novo, he was convicted of both charges. Russell then appealed to the Rankin County Circuit Court, which affirmed the county court’s conviction and sentence. Russell now appeals to this court, asserting: (1) the State failed to establish the Rankin County County Court had jurisdiction, and (2) the Rankin County County Court erred in allowing the results of the Intoxilyzer 8000 into evidence. Finding no error, we affirm the judgment of the circuit court.

FACTS

¶ 2. On May 8, 2011, at around 2 a.m., Officer David Penson of the Flowood Police Department observed a vehicle traveling eastbound on Highway 25 at a high rate of speed in a 50-miles-per-hour zone. Officer Penson’s radar showed that the driver was traveling 70 miles per hour. He stopped the vehicle and identified the driver as Russell.

¶ 3. During the stop, Officer Penson smelled alcohol on Russell and noticed his eyes were bloodshot. Officer Penson asked Russell to exit the vehicle. After determining the smell of alcohol was from Russell’s breath, Officer Penson asked him how long it had been since he had a drink. Russell replied, “About two hours.” Officer Penson conducted a field sobriety test, which Russell struggled to complete. During the one-leg-stand test, Russell lost his balance and swayed. On the walk-and-turn test, he missed the heel-to-toe movements and made improper turns. At that point, Officer Penson asked Russell to submit to a portable breath test. Russell complied, and the test registered positive for alcohol.

¶ 4. At that point, Russell was arrested and transported to the Flowood Police Department. Officer Penson administered two Intoxilyzer 8000 tests on Russell. The tests indicated Russell’s blood-alcohol content was .11%.

¶ 5. At trial, the county court judge found Russell guilty of speeding and DUI. Russell then moved to dismiss the case based on the State’s failure to establish jurisdiction. The prosecutor responded:

Your Honor, the Court living in that area and being familiar with it, I think the Court well knows where Lakeland and Marshal is and that that is in the City of Flowood. Had I not specifically asked, I think the Court knows that that is in the City of Flowood. We’d ask the Court to take judicial notice of that.

The judge stated that “as a practical matter, I absolutely know that’s in the City of Flowood,” but he was uncertain as to whether he could take judicial notice. At that time, the court took the motion under advisement so the parties could brief the issue. The court also noted that Russell would be tentatively convicted and sentenced until further ruling on the motion to dismiss. On the speeding charge, Russell was ordered to pay court costs and a $50 fine. For the DUI conviction, Russell was sentenced to forty-eight hours in the county jail, but the sentence was suspended provided he complete six months’ probation and the Mississippi Alcohol Safety Education Program. He was also ordered to pay a $750 fine. On December 16, 2011, after reviewing the record, trial transcript, and controlling case law on judicial notice, the court entered an order denying Russell’s motion to dismiss.

DISCUSSION

1. Jurisdiction

¶ 6. Russell argues the State failed to prove that the crime occurred in the City of Flowood, in Rankin County. Proof of venue is necessary for a criminal conviction and may be shown by direct or circumstantial evidence. Smith v. State, 646 So.2d 538, 541 (Miss.1994).

¶ 7. Mississippi Code Annotated section 99-11-3(1) (Supp.2013) provides:

The local jurisdiction of all offenses, unless provided by law, shall be in the county where committed. But, if on the trial the evidence makes it doubtful in which of several counties, including that in which the indictment or affidavit alleges the offense was committed, such doubt shall not avail to procure the acquittal of the defendant.

Russell argues that the State failed to establish venue because Officer Penson did not specifically state that the events occurred in the City of Flowood, Rankin County, Mississippi. We disagree. Although Officer Penson did not say the “magic words,” there is direct and circumstantial evidence in the record to show the crimes occurred in the City of Flowood, Rankin County. Officer Penson is a police officer with the City of Flowood. He testified that he clocked Russell at 70 miles per hour in a 55-miles-per-hour zone as he was traveling eastbound on Lakeland Drive. It is also uncontested that the traffic stop occurred “just past Marshal Drive before you get to Highway 471.”

¶ 8. Further, our supreme court has held that a court may take judicial notice that a city is in a particular county. Bearden v. State, 662 So.2d 620, 625 (Miss.1995). Mississippi Rule of Evidence 201(f) provides that judicial notice may be taken at any stage of the proceeding. The rule also states that a “judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” M.R.E. 201(b). A court can take judicial notice that a landmark such as a street, school, or other institution is in a particular city, if this fact is common knowledge in the area where the trial is held. See id.; Thomas v. State, 784 So.2d 247, 250 (¶ 10) (Miss.Ct.App.2000).

¶ 9. In his order denying Russell’s motion to dismiss, the judge stated the following:

Almost anyone who travels Highway 25 through Flowood headed east is aware that the city limits are located at or around Highway 471 and Highway 25. Especially those, like this judge, who travel it almost weekly are well aware of the location of the city limits as being well east of Marshal and Lakeland. Further, under the second category of judicially noticed facts, a few minutes on the internet inquiring of the myriad [of] map services ... make it clear that the location of the stop described by [Officer] Penson in the record is well within the city limits of Flowood and the county limits of Rankin.

Considering all the evidence, we find that the court could have concluded that Russell was ticketed in Flowood, as venue may be proven by circumstantial evidence. Smith, 646 So.2d at 541. We also find that the trial court correctly took judicial notice. Therefore, this issue is without merit.

2. Confrontation Clause

¶ 10. Russell argues that the county court erred in admitting the Intoxilyzer results because doing so violated his right to confrontation under the Sixth Amendment. Russell refers to the United States Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), to support his argument. Specifically, he claims the county court erred when it allowed the prosecution to present the results of Russell’s Intoxilyzer 8000 test without allowing Russell to cross-examine the person who calibrated the machine.

¶ 11. The Mississippi Supreme Court has rejected Russell’s argument. “[Rjecords pertaining to intoxilyzer inspection, maintenance, or calibration are indeed nontestimonial in nature, and thus, their admission into evidence is not viola-tive of the Confrontation Clause of the Sixth Amendment.” Matthies v. State, 85 So.3d 838, 844 (¶ 19) (Miss.2012). It is noteworthy that Russell’s counsel filed his brief in this case two months after Mat-thies was decided. Russell’s counsel should be well aware of the supreme court’s recent decision, since one of his attorneys represented the appellant in Matthies and unsuccessfully raised this exact issue. Here, Russell makes the same argument while also claiming our supreme court erred in its holding in Matthies. This issue is without merit.

¶ 12. Finding no merit to any of the issues raised, we affirm Russell’s conviction and sentence.

¶ 13. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, SPEEDING, AND SENTENCE TO PAY A $50 FINE; AND COUNT II, DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF FORTY-EIGHT HOURS IN THE RANKIN COUNTY JAIL, WITH THE SENTENCE SUSPENDED WHILE ON SIX MONTHS’ PROBATION, AND TO PAY A $750 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    James WILLIAMS, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2013-CC-00027-COA.
    Court of Appeals of Mississippi.
    Nov. 19, 2013.
    James Williams, appellant, pro se.
    Leanne Franklin Brady, Albert B. White, Madison, attorneys for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. After investigation, the claims examiner denied James Williams unemployment benefits, finding he had been terminated for misconduct after refusing a drug test. Williams filed a timely appeal but failed to appear at a telephonic hearing with the administrative law judge — that is, Williams failed to answer the phone at the time scheduled for the hearing. The ALJ, following the Mississippi Department of Employment Security’s Benefit Appeal Regulations, found that Williams had abandoned his appeal and defaulted. The MDES Board of Review and the DeSoto County Circuit Court affirmed. Williams then appealed to the Mississippi Supreme Court, which assigned the case to this Court. We likewise affirm.

STANDARD OF REVIEW

¶ 2. “The scope of review in an unemployment-compensation case is limited. Absent fraud, the findings of fact of the Board of Review are conclusive if supported by substantial evidence.” Brown v. Miss. Dep’t of Emp’t Sec., 29 So.3d 766, 769 (¶ 7) (Miss.2010) (citation omitted). “A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise.” Sprouse v. Miss. Emp’t Sec. Comm’n, 639 So.2d 901, 902 (Miss.1994).

DISCUSSION

¶ 3. This case is controlled by our decision in Henry v. Mississippi Department of Employment Security, 49 So.3d 1159, 1161-62 (¶ 11) (Miss.Ct.App.2010), where it was held:

This Court has previously addressed the issue of whether the dismissal of an MDES appeal is appropriate when the appealing party fails to participate in the appellate hearing. [Miss. Dep’t of Emp’t Sec. v. Johnson, 977 So.2d 1273, 1276 (¶ 7) (Miss.Ct.App.2008) ]. First, we have concluded that the adoption of the Regulations by the MDES is well within the authority granted to the MDES by Mississippi Code Annotated section 71-5-525 [ (Rev.2011) ]. See, e.g., [i]d. at 1276 (¶ 6). Second, after reviewing the applicable Regulations, we have determined that an appealing party’s failure to participate in a scheduled hearing may properly be deemed abandonment of the appeal and, therefore, grounds for dismissal. Id. at 1275-76 (¶ 6).

¶ 4. The record shows that Williams was mailed a “notice of telephonic hearing” on May 11, 2012. The notice informed Williams that the hearing would take place on May 21 at 10:00 a.m. It also instructed Williams to update his contact information and told him what to do if he was unable to attend or if he did not receive the expected call from the ALJ. The notice warned that “[fjailure to provide a valid telephone number, or the inability to receive the call at the time of the scheduled hearing, may result in the loss of this case.” The transcript of the hearing indicates that the ALJ placed a call to Williams’s number at the appointed time and left a voicemail message informing Williams that he had ten minutes to call into the hearing. The ALJ called again at 10:10 a.m., but Williams again did not answer.

¶ 5. Failure to appear at a hearing may be excused on a showing of good cause. See Mississippi Department of Employment Security, Unemployment Insurance Regulations § 202.05(B) (2010). However, Williams has made no effort to show good cause; he asserted in his notice of appeal from the ALJ’s dismissal that a “telecommunication error” was responsible for his failure to attend, but he has never elaborated on that point. Given our standard of review, the Board of Review’s implicit finding that Williams did not show good cause must be upheld.

¶ 6. In his brief on appeal to this Court, Williams argues only that the failure to attend “was of no consequence” because he would not have had the opportunity to call witnesses or cross-examine witnesses against him during the telephonic hearing. That is not true; section 200.04(B) of the MDES regulations provides that parties to the telephonic appeal hearings shall have “the opportunity to testify, call and question witnesses, question or cross examine the other party and their witnesses that testify, present exhibits, and object to the other party’s exhibits.” The notice of the hearing contained substantially the same information.

¶ 7. Williams also attempts to argue the underlying merits of whether his termination was for misconduct, but this argument is moot because he has been found to have abandoned his appeal. Henry, 49 So.3d at 1162 (¶ 12).

¶ 8. We conclude that Williams’s failure to attend the telephonic hearing constituted an abandonment of his appeal. We therefore affirm the decision of the Mississippi Department of Employment Security denying unemployment benefits.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY IS AFFIRMED.

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

      . Available at http://mdes.ms.gov/media/9837/ RegulationsDecember2010.pdf.